Opinion 10-33

March 10-11, 2010

Digest:         A judge may serve on the Board of Trustees of a not-for-profit college foundation that encourages the development of the college by soliciting, encouraging, accepting, investing, and managing private and institutional gifts to the college. The judge may assist in planning fund-raising and in the management and investment of the college’s funds, but may not lobby for or otherwise personally participate in the solicitation of funds or other fund-raising activities, and must satisfy the annual financial commitment that is mandatory for all board members by making a donation from his/her personal funds.

Rules:          22 NYCRR 100.2; 100.2(A); 100.4(A)(1) - (3); 100.4(C)(3); 100.4(C)(3)(a); 100.4[C][3][b][i] - [iv]; Opinion 97-64.

Opinion:

         A newly appointed judge asks whether he/she may serve on the Board of Trustees of a college foundation, which is a not-for-profit corporation. The foundation’s mission is to encourage the development of the college as a “premier senior college by ... soliciting, encouraging, accepting, investing, and managing private and institutional gifts to [the college].” The inquiring judge is a graduate of the college, and his/her child is currently a student at the college. The judge views service on the board “as an opportunity to ‘give back’ to an institution [] that played a key role in putting [the judge] where [he/she is] today.” The judge advises that he/she will not actively solicit money for the college and that he/she will satisfy the annual personal financial commitment that is mandatory for all board members from his/her personal funds.

         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]). Therefore, a judge must conduct his/her extra-judicial activities so that they do not (1) cast reasonable doubt on the judge’s capacity to be impartial; (2) detract from the dignity of judicial office; or (3) interfere with the proper performance of judicial duties and are not incompatible with judicial office (see 22 NYCRR 100.4[A][1] - [3]). A judge may be a member or serve as an officer, director, trustee or non-legal advisor of a not-for-profit education, religious, charitable, cultural, fraternal or civic organization that will not be engaged in proceedings that ordinarily would come before the judge or, as the inquirer is a full-time judge, will not be engaged regularly in adversary proceedings in any court (see 22 NYCRR 100.4[C][3]; [C][3][a]).

         A judge who is a trustee of such an organization is subject to certain limitations (see 22 NYCRR 100.4[C][3][b][i] - [iv]). Particularly with respect to fund-raising, a judge may assist such an organization in planning fund-raising and may participate in the management and investment of the organization’s funds, but must not personally participate in the solicitation of funds or other fund-raising activities (see 22 NYCRR 100.4[C][3][b][i]). Moreover, a judge may not be a speaker or the guest of honor at an organization’s fund-raising events, but may attend such events (see 22 NYCRR 100.4[C][3][b][ii]). A judge shall not use or permit the use of the prestige of judicial office for fund-raising or membership solicitation, but may be listed as an officer, director or trustee of the organization (see 22 NYCRR 100.4[C][3][b][iv]), including on the organization’s regular letterhead (see id.). And, the regular letterhead may be used for fund-raising or membership solicitation and include the judge’s judicial designation so long as comparable designations are listed for other persons (see id.).

         Therefore, the inquiring judge may serve on the Board of Trustees of the not-for-profit college foundation, may assist in planning fund-raising and in the management and investment of the college’s funds (see 22 NYCRR 100.4[C][3][b][i]), but may not lobby for or otherwise personally participate in the solicitation of funds or other fund-raising activities (see Opinion 97-64 [Vol. XVI]). Also, the judge must satisfy the annual financial commitment by making a donation from his/her personal funds.