Opinion 10-148

October 28, 2010

Digest:         A judge who is a member or officer of a house of worship may not personally solicit contributions from the congregation by preaching a sermon on tithing.

Rules:          22 NYCRR 100.2; 100.2(A); 100.2(C); 100.4(C)(3); 100.4(C)(3)(b)(i); 100.4(C)(3)(b)(iv); Opinions 10-22; 09-48; 08-20; 06-50; 05-17; 03-129; 99-59 (Vol. XVIII); 90-28 (Vol. V); Joint Opinion 89-83/89-84 (Vol. IV).

Opinion:

         The inquiring judge states that he/she serves as an elder of his/her church and in that capacity is “occasionally called upon to preach a sermon.” The judge asks whether he/she may “discuss the subject of tithing (the voluntary contribution of up to ten percent of one’s income) and the subject of offerings above and beyond the giving of the tithe” in the course of his/her sermon.

         A judge must avoid impropriety and the appearance of impropriety in all the judge’s activities (see 22 NYCRR 100.2), and must act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary (see 22 NYCRR 100.2[A]). A judge may be a member or serve as an officer, director, trustee or non-legal advisor of a not-for-profit educational, religious, charitable, cultural, fraternal or civic organization, subject to certain limitations (see 22 NYCRR 100.4[C][3]). Although a judge may assist such an organization in the planning fund-raising and may participate in the management and investment of the organization’s funds, a judge may not personally solicit funds or participate in other fund-raising activities (see 22 NYCRR 100.4[C][3][b][i]). Moreover, a judge may not use or permit the use of the prestige of judicial office for fund-raising (see 22 NYCRR 100.4[C][3][b][iv]; see also 22 NYCRR 100.2[C] [a judge may not lend the prestige of judicial office to advance the private interests of the judge or others]).

         The Rules Governing Judicial Conduct do not prohibit a judge from serving as an elder of a church (see 22 NYCRR 100.4[C][3]; Opinions 05-17 [trustee of a church]; 03-129 [president of a synagogue]) or from personally making contributions, whether at the level of a tithe or otherwise, to any permissible charity or not-for-profit organization (see Opinions 09-48; 06-50; 99-59 [Vol. XVIII]).

            Such permissible extra-judicial activities are subject, however, to the prohibition on personal solicitation of funds (see 22 NYCRR 100.4[C][3][b][i], [iv]; Opinions 05-17; 03-129; Joint Opinion 89-83/89-84 [Vol. IV]). Thus, although a judge may participate in a church-sponsored mission to Africa, the judge must not participate in, or lend the prestige of judicial office to, the congregation’s efforts to raise funds for the mission (see Opinion 08-20). This Committee has also held that a judge may not serve as the Deacon in charge of a church fund-raising event, or otherwise participate “in any prominent or substantial manner,” as this would involve the judge “too closely” in fund-raising efforts (Opinion 90-28 [Vol. V]).

         The Committee has previously advised that a judge may “perform[] the simple, ministerial act of physically passing the collection plate” as an usher during a religious service at a house of worship, but only because (Joint Opinion 89-83/89-84 [Vol. IV]):

[t]his physical act, while it may follow a solicitation of funds made prior to the collection by a clergyman or member of the congregation, does not in itself constitute such a solicitation. So long as the judge does not participate in the actual solicitation, the mere physical act of collecting contributions is not prohibited .

In contrast, this inquiring judge would like to solicit funds from the congregation in a fairly direct, prominent and substantial manner by discussing the topic of tithing and other contributions to the church as part of his/her sermon. This is impermissible (see 22 NYCRR 100.4[C][3][b][i], [iv]; Opinions 08-20; 90-28 [Vol. V]; Joint Opinion 89-83/89-84 [Vol. IV]).