Opinion 12-14

January 26, 2012

Digest:         A part-time judge may serve as president of a not-for-profit organization which promotes athletic involvement by raising funds for athletic programs at local schools and may assist the organization with planning fund-raising, provided that the judge does not personally solicit funds, does not permit the use of the prestige of judicial office for fund-raising, and does not permit his/her name to appear as the author on any fund-raising letter or as spokesperson in other solicitations.

Rules:          22 NYCRR 100.2; 100.2(A); 100.4(C)(3)(a)(i); 100.4(C)(3)(b)(i), (iv); Opinions 09-238; 09-170; 09-28; 06-69; 02-106; 02-28; 01-26 (Vol. XIX); 01-23 (Vol. XIX); 99-08 (Vol. XVII); 97-64 (Vol. XVI); 96-78 (Vol. XV).

Opinion:

         The inquiring part-time judge asks whether he/she may serve as president of a not-for-profit organization that “promotes athletic involvement” by raising funds for athletic programs at local schools. The judge will not directly solicit funds and will not permit his/her name to appear on any fund-raising solicitations. The judge states that his/her primary role as president is to manage meetings, act as spokesperson with the media and coordinate fund-raising activities. According to the judge, advertising for the organization’s upcoming fund-raising event will not contain the judge’s name, and the judge will not handle the funds or issue tax receipts.

          A judge must always 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]). Judges may serve as an officer of an educational, charitable, or civic organization not conducted for profit, so long as the organization will not be engaged in proceedings that ordinarily would come before the judge (see 22 NYCRR 100.4[C][3][a][i]). A judge must not use or permit the use of the prestige of judicial office for fund-raising or membership solicitation (see 22 NYCRR 100.4[C][3][b][iv]) and must not personally participate in the solicitation of funds or other fund-raising activities, although he/she “may assist” the organization in “planning fund-raising” (see 22 NYCRR 100.4[C][3][b][i]).

         The Committee has advised that a judge may serve as an officer or director of a not-for-profit organization that engages in substantial fund-raising efforts (see e.g. Opinion 97-64 [Vol. XVI] [part-time judge may serve as president of a local United Way organization]). A judge’s service as an officer or director of such an entity is permissible even when the entity’s primary purpose is to raise and distribute funds in the form of scholarships (see e.g. Opinion 09-238). For example, in Opinion 09-170, the Committee advised that a part-time judge may serve on the board of directors of a not-for-profit organization that awards scholarships to aspiring seminarians, as long as the judge does not personally participate in soliciting funds. The Committee expressly noted in Opinion 09-170 that the board’s functions included “a fund-raising component,” in addition to overseeing the funds raised, developing policies and procedures, and reviewing scholarship applications.

         By contrast, the Committee has advised that a judge should not chair an entity which appears to have no real function other than fund-raising, where the circumstances will inevitably suggest that the judge is involved in the entity’s fund-raising efforts. This is particularly the case for an organization that “is in the nature of an ad hoc committee existing solely for the purpose of raising funds at a specific event” (Opinion 01-23 [Vol. XIX]; see also e.g. Opinions 09-28 [judge may not serve as co-chair or master of ceremonies of charitable organization’s fund-raising golf tournament, but may assist with planning event]; 06-69 [judge may not serve as honorary co-chair of law school fund-raising event, but may attend event, recommend potential individuals to serve as co-chair(s), and speak at event, provided judge does not personally solicit contributions]; 01-26 [Vol. XIX] [judge should not serve on Capital Development Committee of YMCA’s board of directors, because “the function of that committee is to raise funds for a particular purpose”]; 99-08 [Vol. XVII] [judge should not allow judge’s name to be listed as honorary member of bar association’s ad hoc committee where committee’s sole purpose is to invite people to participate in fund-raising event]).

         In the Committee’s view, the inquiring judge’s proposed involvement in a not-for-profit organization which promotes athletic involvement by raising funds for athletic programs at local schools is permissible under prior Opinions. First, the organization the judge describes is not an ad hoc entity designed to run a single fund-raising event, but has already existed continuously for at least one year in furtherance of its goal of “promot[ing] athletic involvement” at local schools (cf. Opinion 02-106 [judge may serve on advisory committee of charitable division of bar association, and be included on division’s regular letterhead, where division “is not an ad hoc entity formed solely for the purpose of soliciting funds. Rather, it has existed as part of the county bar association for approximately ten years on a continuing basis”]). Second, the name of the organization ([Locality] Sports Boosters) is consistent with its purpose to “promote[] athletic involvement” at local schools, as contrasted with a name such as “[Village] Mustang Run Committee Corp. for the benefit of [Village] Volunteer Ambulance Corps, [Village] Athletic Association, [Village] Police Athletic League, [Village] Auxiliary Police, [Village] Fire Department (Life Saving Equipment), [Village] Historical Society, and the [Village] Youth Services” (see Opinion 01-23 [Vol. XIX]), which left no doubt that the organization’s “sole function” was “to conduct an annual run/walk for the benefit of the entities named in its title”).

         Therefore, in these circumstances and for these reasons, the Committee concludes that the name and nature of the entity reflect the entity’s non-fund-raising purposes in such a way that the judge’s involvement as president will not inevitably suggest that the judge is impermissibly involved in fund-raising. Thus, the inquiring judge may serve as president of the not-for-profit organization, and may assist with planning fund-raising, provided the judge does not personally solicit funds, does not permit the use of the prestige of judicial office for fund-raising, and does not permit his/her name to appear as the author or spokesperson on any fund-raising solicitations (see 22 NYCRR 100.4[C][3][b][i], [iv]).