Opinion 11-44

April 28, 2011

Digest:         A judge may not be a member of the “founding group” or the board of directors of a charter school.

Rules:          22 NYCRR 100.2; 100.2(A); 100.3(A); 100.4; 100.4(A)(1) - (3); 100.4(C)(3); 100.4(C)(3)(i),(ii); 100.5 (B); Opinions 02-91; 96-43 (Vol. XIV); 90-63 (Vol. V); Joint Opinion 89-157/90-07 (Vol. V).

Opinion:

         A family court judge asks whether it is ethically permissible for him/her to be a member of the initial “founding group” or the ultimate board of directors of a charter school when the corporation that will establish and operate the school has a contract with the Department of Social Services to operate a PINS (Persons in Need of Supervision) diversion program. The PINS program operates within the same county where the judge presides and serves youths who appear in the judge’s court. The judge advises that he/she receives status reports from program staff concerning pending PINS and juvenile delinquency cases.

         A judge must avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must always act to promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). Furthermore, a judge’s judicial duties take precedence over all the judge’s other activities (see 22 NYCRR 100.3[A]). Therefore, when engaging in extra-judicial activities, a judge must minimize the risk of conflict with his/her judicial obligations (see 22 NYCRR 100.4) and must avoid any extra-judicial activities that (1) cast reasonable doubt on the judge’s capacity to act impartially as a judge; (2) detract from the dignity of judicial office; (3) interfere with the proper performance of judicial duties and are not compatible with judicial office (see 22 NYCRR 100.4[A][1]-[3]).

         Generally a judge may be a member or serve as an officer, director, trustee or non-legal advisor of a not-for-profit educational organization (see 22 NYCRR 100.4[C][3]), unless the organization will be engaged in proceedings that ordinarily would come before the judge or, if the judge is full-time, will be engaged regularly in adversary proceedings in any court (see 22 NYCRR 100.4[C][3][a][i], [ii]).

         The Committee has previously advised that serving as a school board member is incompatible with judicial office as school boards often are involved in quasi-political and highly controversial issues (see Opinions 96-43 [Vol. XIV]; 90-63 [Vol. V]; Joint Opinion 89-157/90-07 [Vol. V]). The Committee sees no reason to distinguish between service on a public school board and a public charter school board as the latter organizations from time to time also generate quasi-political and highly controversial issues that could interfere with a judge’s judicial duties and compromise his/her appearance of impartiality.

         The Committee also previously has advised that a family court judge should not serve on the board of directors of a non-profit organization that provides services to individuals who may be referred to the organization, even if indirectly, by the family court (see Opinion 02-91). The Committee noted that (id.):

. . . the Family Court on which the inquirer serves has jurisdiction over proceedings relating to the placement of children outside of the home as well as the authority to refer the children involved in such proceedings to programs operated by the agency. Also, the employees of the organization are likely to be involved in proceedings in the Family Court on which the judge serves. See, 22 NYCRR 100.4(C)(3)(a)(i),(ii). Furthermore, although the inquiring judge is in the practice of not designating the facility where a child should receive treatment or be confined, the judge does make the initial referral to a county or state agency and in so doing creates the possibility of a placement at the agency on whose board the judge would be serving. This combination of circumstances, in our opinion, creates a conflict or at least the appearance of a potential conflict between the judge’s performance of his/her judicial duties and his/her role as a board member.

         Similarly, the judge in the present inquiry has the authority to refer children involved in family court proceedings to the PINS program the charter school corporation operates. In addition, the judge receives status reports from program staff concerning dispositions in PINS and juvenile delinquency cases pending in the judge’s court. Such reports likely require diversion program employees to appear in the judge’s court.

         Therefore, it is the Committee’s view that the inquiring judge may not participate as a member of the “founding group” or the board of directors of a public charter school as doing so could result in an appearance of impropriety (see 22 NYCRR 100.2).