Opinion 12-142

September 13, 2012

Digest:         A judge who is president of a not-for-profit religious organization may help plan the organization’s fund-raising event, and may attend the event, but must not speak or participate in any substantial or prominent manner during the event.

Rules:          Judiciary Law §212(2)(l); 22 NYCRR 100.2; 100.2(A); 100.4(A)(1)-(3); 100.4(C)(3)(b)(i)-(ii), (iv); 22 NYCRR 101.1; 101.3[a]; Opinions 10-22; 09-28; 90-62 (Vol. V); 90-28 (Vol. V); 89-57 (Vol. III); 88-111 (Vol. II); 87-20 (Vol. I); NY St Bar Assn Comm on Prof Ethics Op 873 (2011).

Opinion:

         A full-time judge who is also the president of a not-for-profit religious organization asks whether he/she may permit the organization to hold a “casino themed” fund-raising event during the judge’s term of office. The judge explains that “only fake money [will be] used and the prizes awarded [will be] raffle tickets to win prizes.” The judge states that he/she will take no part in any fund-raising efforts, and that “[m]y only involvement is that I am President of the [organization].”

          A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must always promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). Thus, a judge must conduct all of his/her extra-judicial activities so that 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]). Subject to these and other limitations, a judge may serve as an officer of a not-for-profit religious organization (see 22 NYCRR 100.4[C][3]; see also, e.g., Opinion 03-129 [judge may serve as president of a synagogue]). As relevant here, 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 the organization’s fund-raising events, except that a judge may attend such events and may accept an unadvertised award ancillary to the event (see 22 NYCRR 100.4[C][3][b][ii]). Finally, 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 on the organization’s regular letterhead (see 22 NYCRR 100.4[C][3][b][iv]).

         Accordingly, the inquiring judge may help plan and attend fund-raising events for the not-for-profit religious organization, but is prohibited from personally participating in the solicitation of funds or other fund-raising activities (see 22 NYCRR 100.4[C][3][b][i]-[ii]). In Opinion 10-22, the Committee advised:

It is the nature of the judge’s participation during a fund-raising event that determines whether it would violate the provisions of the Rules Governing Judicial Conduct. Therefore, if a judge is not involved in selling tickets to an event or in any other way involved in soliciting or collecting money either before or during an event, but is simply engaged in “behind the scenes” activities, such as general setup, food preparation, food service, and cleanup, then he/she may participate in the event without violating the rules that prohibit a judge from soliciting funds or engaging in other fund-raising activities or using the prestige of judicial office for that purpose.

(see Opinion 10-22 [citations omitted]).

         Here, too, the inquiring judge may be involved in “behind the scenes” activities relating to the event (see Opinion 10-22), including planning the event (see 22 NYCRR 100.4[C][3][b][i]). However, because the event is a fund-raiser, the judge must refrain from assisting in any prominent or substantial manner at the event, such as running any of the “casino themed” games that will take place at the event (see Opinions 90-28 [Vol. V] [judge may not “judge the grease pole and lumberjack contest” at a church’s fund-raising event, “because the judge’s role would be too prominent”]; 90-62 [Vol. V] [judge “may not participate in running any bingo games” at a fire department’s fund-raising event]; 89-57 [Vol. III] [judge may not participate as a bingo worker at a fund-raising event]; 88-111 [Vol. II] [judge may judge a cake-baking contest only if the purpose of the event is not fund-raising]; 87-20 [Vol. I] [judge may not work at bingo games which “are operated for purposes of raising funds for the Volunteer Fire Department”]) or serving as the master of ceremonies (see Opinion 09-28; 22 NYCRR 100.4[C][3][b][ii]).¹

         The Committee notes that it cannot comment on the legality of the proposed event, as questions of law are beyond the Committee’s jurisdictional authority (see Judiciary Law §212[2][l]; 22 NYCRR 101.1; 101.3[a]).

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     ¹The fact that attendees would be gambling with fake money, rather than real money, does not make it permissible for the judge to participate in the proposed fund-raising event in a prominent or substantial manner.