Opinion 10-22

March 10 - 11, 2010

Digest:         A judge may assist with general setup, food preparation, and cleanup during a volunteer fire department’s annual fund-raiser as long as the judge does not personally participate in the solicitation or collection of funds or other fund-raising activities that occur during the event.

Rules:          22 NYCRR 100.2; 100.2(A); 100.4(A)(1)-(3); 100.4(C)(3); 100.4(C)(3)(b)(i), (iv); Opinions 99-89 (Vol. XVIII); 96-59 (Vol. XIV); 90-175 (Vol. VI); 90-62 (Vol. V); 90-28 (Vol. V); 89-53 (Vol. III) 89-18 (Vol. III).

Opinion:

         A part-time town justice who is a member of a volunteer fire department asks whether he/she may participate in the department’s annual fund-raiser by helping with general setup, food preparation and cleanup.

         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 participate in extra-judicial activities that do not cast reasonable doubt on the judge’s ability to act impartially as a judge; do not detract from the dignity of judicial officer; and do not interfere with the proper performance of judicial duties and are not incompatible with judicial office (see 22 NYCRR 100.4[A][1] - [3]). Such permitted extra-judicial activities include being a member of a not-for-profit civic organization (see 22 NYCRR 100.4[C][3]). However, a judge may not personally participate in the solicitation or collection of funds or other fund-raising activities on behalf of such an organization, but may assist in planning fund-raising and may participate in the management and investment of the organization’s funds (see 22 NYCRR 100.4[C][3][b][i]).

         The Committee previously has advised that a judge may prepare and serve food or sell food at an organization’s fund-raising event as long as the food is provided only as a convenience for those attending the event (see Opinion 99-89 [Vol. XVIII] [judge may prepare and serve food at church fund-raising event provided it is made available only for the convenience of those attending and the prices charged are not intended to produce a profit]; Opinion 90-62 [Vol. V] [judge may work in a food concession at a local Fourth of July celebration provided the food concession is not in itself a fund-raiser]; Opinion 90-28 [Vol. V] [judge may cook and serve hamburgers at not-for-profit church fund-raising function where the food is made available only for the convenience of those attending and the price charged produces no profit]; Opinion 89-53 [Vol. III] [judge may work at Little League concession stand selling hot dogs, soda, coffee, ice-cream and candy if the items are priced at approximately the same price as similar items being sold at commercial retail establishments in the community so that the principal purpose of the sale is not to raise funds]).

         However, the Committee also has advised that a town justice may serve as a bartender at a library-sponsored cocktail party and may cook at the library fair, but may not serve as a cashier at either event (see Opinion 96-59 [Vol. XIV]); may cook, clean and serve food at a fund-raising dinner held by a social organization, but cannot sell tickets to the event (see Opinion 90-175 [Vol. VI]); and may participate in a fraternal organization’s fund-raising supper as a clean-up person (see Opinion 89-18 [Vol. III]), without mentioning the cost of the food provided.

         The Committee is now of the view that whether a not-for-profit sells food during a fund-raiser to make money or simply for the convenience of those in attendance is not the controlling factor. Rather, it is the nature of the judge’s participation during a fund-raising event that determines whether it would violate the provisions of the Rules Governing Judicial Conduct. Therefore, if a judge is not involved in selling tickets to an event or in any other way involved in soliciting or collecting money either before or during an event, but is simply engaged in “behind the scenes” activities, such as general setup, food preparation, food service, and cleanup, then he/she may participate in the event without violating the rules that prohibit a judge from soliciting funds or engaging in other fund-raising activities (see 22 NYCRR 100.4[C][3][b][i]) or using the prestige of judicial office for that purpose (see 22 NYCRR 100.4[C][3][b][iv]). Therefore, the inquiring judge may engage in these kinds of activities during a volunteer fire department’s fund-raising dinner, as long as the judge does not personally participate in the solicitation or collection of funds or other fund-raising activities that occur during the event.

         To the extent that prior Opinions 99-89 (Vol. XVIII); 90-62 (Vol. V); 90-28 (Vol. V); 89-53 (Vol. III) are based on whether the food sales in which the judge is involved produce a profit, they are modified. A judge may assist with food preparation, cooking, food service, general setup and cleanup during a not-for-profit’s fund-raising event as long as he/she is not at the same time engaged in activities designed to raise money and is not otherwise serving in a prominent role that would lead to the conclusion that the judge is so engaged.