Opinion 10-92

June 10, 2010

Digest:         A full-time judge may not serve on the Board of Directors of a for-profit health care facility.

Rule:            22 NYCRR 100.2; 100.2(A); 100.4(A)(1)-(3); 100.4(D)(3))a)-(C); Opinions 09-207; 07-210; 01-72 (Vol. XX); 98-35.

Opinion:

         A full-time judge asks whether he/she may serve on the Board of Directors of a for-profit health care facility.

         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 independence of the judiciary (see 22 NYCRR 100.2[A]). Therefore, a judge may engage in extra-judicial activities as long as they do not (1) cast reasonable doubt on the judge’s capacity to act impartially as a judge; (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]). Nevertheless, a full-time judge is prohibited from serving as an officer, director, manager, general partner, advisor, employee or other active participant of any business entity except in certain limited circumstances that are not relevant to the present inquiry (see 22 NYCRR 100.4[D][3][a]-[c]).

         The Committee previously has advised that a full-time judge may serve on the board of a health care provider (see e.g. Opinion 09-207 [a mutual benefit corporation organized pursuant to Insurance Law Article 43, which governs the operation of non-profit Medical and Dental Indemnity, or Health and Hospital Service Corporations]; Opinion 07-210 [a not-for-profit New York State public benefit corporation created for the purpose of operating a not-for-profit public hospital and cancer research center if such entity is not a governmental committee or commission]; Opinion 01-72 [Vol. XX][a not-for-profit hospital]; Opinion 98-35 [a not-for-profit neighborhood health center]). However, in each of these cases, unlike the case in the instant inquiry, the entity was a not-for-profit. Consequently, the inquiring judge is not permitted to serve on the board of a for-profit entity (see 22 NYCRR 100.4[D][3][a]-[c]).¹

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           ¹Since this inquiry was posed to the Committee, the Office of Court Administration has temporarily suspended 22 NYCRR 100.4(D)(3) and has relaxed the Rules of Judicial Conduct regarding extra-judicial employment. Therefore, the inquiring judge may make a request, in writing, to John McConnell, counsel to the Office of Court Administration, 25 Beaver Street, New York, New York 10004, for permission to engage in this extra-judicial conduct. The inquiring judge is referred to the Chief Administrative Judge’s Memorandum dated October 13, 2010 regarding outside employment, enclosed herewith.