Opinion 12-108

June 14, 2012

Digest:         A judge may join a board of directors of a charitable entity that receives, reviews and determine requests to fund arts and education projects.

Rules:          22 NYCRR 100.2; 100.2(A); 100.4(A)(1) - (3); 100.4(C)(3)(a)(ii); 100.4(C)(3)(b)(i); 100.4(H)(1)(a); Opinion 09-170; 08-193; 07-81.

Opinion:

         A full-time judge asks if it is ethical to serve on the board of a charitable foundation that will receive, review and determine applications to fund projects involving the arts and education. The judge advises he/she will be paid for such Board service.

         A judge must always avoid even the appearance of impropriety in all the judge’s activities (see 22 NYCRR 100.2) and must always act to promote the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). Therefore, a judge may participate in extra-judicial activities that do not cast reasonable doubt on the judge’s capacity to act impartially as a judge; detract from the dignity of judicial office; or interfere with the proper performance of judicial duties and are not incompatible with judicial office (see 22 NYCRR 100.4[A][1] - [3]). A full-time judge may serve as an officer, director, trustee or non-legal advisor of a charitable organization not conducted for profit unless the organization will be engaged regularly in adversary proceedings in any court (see 22 NYCRR 100.4[C][3][a][ii]). However, a judge serving in such capacity may not personally participate in the solicitation of funds or other fund-raising activities on behalf of the organization, but may assist the organization 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]). A judge may receive compensation for permissible extra-judicial activities if the source of the payments does not give the appearance of influencing the judge’s performance of judicial duties or otherwise give the appearance of impropriety, but the amount of compensation shall not exceed a reasonable amount, nor shall it exceed what a person who is not a judge would receive for the same activity (see 22 NYCRR 100.4[H][1][a]).

         The Committee previously has advised that a judge may serve on a panel that will award annual student-athlete scholarships on behalf of a hospital’s community relations board (see Opinion 08-193) and a local not-for-profit organization that awards scholarships to aspiring seminarians (see Opinion 09-170), as long as the judge will not be involved in any fund-raising. The Committee also has advised that a judge may serve on the board of directors of a not-for-profit charity subject to the limitations set forth in the Rules Governing Judicial Conduct (see Opinion 07-81).

          Similarly, this inquiring judge may serve on the board of directors of a charitable foundation that will receive, review and determine applications to fund projects involving the arts and education, subject to the same limitations.