Opinion 12-177

December 13, 2012

Digest:         A newly elected full-time judge may continue to participate in a variety of extra-judicial activities subject to the limitations set forth in the Rules Governing Judicial Conduct and may accept gifts of a gavel or judicial robe from members of his/her family.

Rules:          22 NYCRR 100.2; 100.2(A); 100.4(A); 100.4(A)(1)-(3); 100.4(B); 100.4(C)(3); 100.4(C)(3)(a)(i), (ii); 11-143; 100.4(C)(3)(b)(i),(iv); 100.4(D)(5)(d), (e); Opinions 10-148; 10-130; 10-33; 10-22; 09-150; 09-57; 08-173; 07-161; 07-81; 07-17; 06-67; 05-17; 03-129; 02-14; 01-26 (Vol. XIX); 01-90 (Vol. XX); Joint Opinion 97-104/97-105 (Vol. XVI); Opinions 96-60 (Vol. XIV); 94-111 (Vol. XII); 94-115 (Vol. XIII); 92-103 (Vol. X); 91-33 (Vol. VII); 91-23 (Vol. VII).

Opinion:

         A newly elected full-time judge asks whether he/she may continue to participate in the following extra-judicial activities:

(1) Little League: (a) participating in, scheduling and providing softball instruction at clinics; (b) arranging clinics, including choosing a location, securing outside instructors and determining costs; (c) serving on the Board of Directors of a Little League;

(2) Intramural Basketball League: (a) serving as a coach; (b) serving as gym coordinator, which involves (i) setting up teams, (ii) assigning players, (iii) selecting coaches, (iv) interacting with coaches regarding rules, (v) dealing with issues in the gym, (vi) dealing with player and parent issues, (vii) visiting gym sites to watch and monitor games; (c) serving as coordinator of a division; (d) serving on the Board of Directors;

(3) Church: (a) serving as a trustee; (b) serving on the church finance council; and

(4) High School Parents’ Association: (a) participating in an annual fund-raising golf outing both in planning and organizing the event, and volunteering on the day of the event; (b) running an annual parent/child social event, which is not a fund-raiser, but which does involve securing “giveaways”.

         The judge also asks whether he/she may accept gifts from his/her family members, such as a gavel and a judicial robe.

         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]). A judge may engage 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]; 100.4[B]). In particular, a judge may be a member or serve as an officer, director, trustee or non-legal advisor of a not-for-profit educational, fraternal, religious or civic organization, subject to certain limitations (see 22 NYCRR 100.4[C][3]). For example, a full-time judge may not so serve if it is likely that the organization will be engaged either in proceedings that ordinarily would come before the judge, or in adversary proceedings in any court (see 22 NYCRR 100.4[C][3][a][i], [ii]). In addition, while a judge may assist such an organization in planning fund-raising and may participate in the management and investment of the organization’s funds, the judge may not personally participate in the solicitation of funds or other fund-raising activities (see 22 NYCRR 100.4[C][3][b][i]) and cannot 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]).

Questions 1 and 2: Participation in Amateur Sports Leagues

         The Committee has previously advised that a judge may serve on the board of directors of a not-for-profit fraternal, civic or educational organization, subject to any applicable limitations set forth in the Rules Governing Judicial Conduct (see Opinions 92-103 [Vol. X]; 91-23 [Vol. VII] [a full-time judge may serve as a member of the board of directors of a charitable, educational and scientific, not-for-profit organization]). For example, a full-time judge may serve as a member of the board of directors of a parochial school/academy (see Opinions 09-150; 08-173; Joint Opinion 97-104/97-105 [Vol. XVI]); a full-time judge may serve on the board of directors of a not-for-profit organization involved in the promotion of safety standards and administrative reform in the sport of boxing but may not meet with members of the State Legislature to promote the organization’s legislative agenda (see Opinion 10-130); a county court judge may serve on the board of directors of a not-for-profit charity that provides services to orphans, foster children, and adults with disabilities, provided these activities do not conflict with the judge’s judicial duties; the judge does not make referrals to the organization; the organization will not be engaged regularly in adversarial proceedings in any court or in proceedings that ordinarily would come before the judge; and provided the judge avoids any involvement in fund-raising on the organization’s behalf (see Opinion 07-81); a judge may serve as a member of the board of directors of a local YMCA, but should not serve on its capital development committee (see Opinion 01-26 [Vol. XIX]); a judge may serve as president of a not-for-profit organization that provides after-school tutoring, supervision and enrichment for children, subject to Section 100.4 of the Rules Governing Judicial Conduct (see Opinion 02-14); a full-time judge may serve on the board of directors of a social services organization but may not permit his/her name to be used in connection with the solicitation of funds (see Opinion 91-33 [Vol. VII]). Moreover, the Committee has advised that a full-time judge may serve on the Bylaws Committee of a not-for-profit athletic club, provided that the club’s outside counsel handles legal matters for the club and further provided that the judge will not give legal advice or engage in decisions likely to lead to litigation (see Opinion 11-143); and may serve as a secretary or director of a not-for-profit golf and country club (see Opinions 96-60 [Vol. XIV]; 94-111 [Vol. XII]). Therefore, the inquiring judge may serve on the boards of directors of an intramural basketball league and a Little League, subject to all provisions of the Rules pertaining to extra-judicial conduct (see Opinion 11-143).

         In the Committee’s view, the other volunteer athletic coaching activities the inquirer describes, including the associated instructional and administrative functions, also are ethically permissible as they do not appear to involve fund-raising or other prohibited activities (see generally 22 NYCRR 100.4[B]) and do not appear to pose a risk to the inquirer properly performing his/her judicial duties (see 22 NYCRR 100.4[A]).

Question 3: Participation in Governance of a Religious Organization

         The Committee has advised that a judge may serve as an officer, director, trustee, or non-legal advisor of a religious organization, including the trustee of a church but may not act as a legal advisor or engage in fund-raising activities (see Opinions 10-148; 05-17; 03-129; 94-115 [Vol. XIII]; see generally 22 NYCRR 100.4[C][3][b][i], [iv]). The Committee has also advised that a judge may, as a member of the board of trustees for a not-for-profit college foundation, assist in planning fund-raising and in the management and investment of the college’s funds but may not personally participate in the solicitation of funds or other fund-raising activities (see Opinion 10-33). Therefore, the inquiring judge also may serve as a trustee of his/her church and on the church finance council, subject to the same limitations (see generally Opinions 10-148; 10-33; 05-17; 03-129; 94-115 [Vol. XIII]; 22 NYCRR 100.4[C][3][b][i], [iv]).

Question 4: Participation in Parents’ Association Activities

         The Committee previously has advised that judges may participate in not-for-profit organizations’ fund-raising events in many ways, provided that they do not use the prestige of judicial office to advance the private interests of the sponsoring organization and do not personally participate in fund-raising (see Opinions 10-22 [judge may assist with general setup, food preparation, and cleanup during a volunteer fire department’s annual fund-raiser but not personally participate in the solicitation or collection of funds or other fund-raising activities that occur during the event]; 09-57 [judge who serves on board of not-for-profit organization may recruit other organization members to participate in a project the organization sponsors but may not personally participate in the solicitation of funds or other fund-raising activities]; 07-17 [judge may contribute personal funds; participate in an annual walk; serve on an ad hoc committee that plans the walk; perform tasks to set up for the walk, such as placing signs recognizing sponsors and directing walkers, setting out food and drink stands, registering participants, handing out raffle prizes and retrieving in-kind donations from sponsors but may not personally solicit funds or in-kind donations; permit his/her name to be used in solicitation of donations; or sell raffle tickets at such an event]).

         With respect to the specific Parents’ Association events the judge has identified, the Committee has previously advised that a judge may participate in a fund-raising golf tournament where the judge’s sole activities are to assign and supervise course marshals on the golf course during play (see Opinion 01-90; see also Opinion 07-161 [judge may not personally participate in fund-raising activities and may not permit use of prestige of judicial office for fund-raising purposes but may otherwise participate in charitable fund-raising events]) and that a judge must not personally solicit in-kind donations (see Opinion 07-17; see also 06-67 [noting that “[f]und-raising includes solicitation of goods”]). Similarly, the inquiring judge may participate in the Parents’ Association golf outing fund-raiser and the parent/child social event, subject to the limitations set forth in the Rules and this Committee’s Opinions.

Gifts from Relatives

         Finally, a judge may accept a gift from a friend or relative for a special occasion such as a wedding, anniversary or birthday, if the gift is fairly commensurate with the occasion and the relationship (see 22 NYCRR 100.4[D][5][d]) and may also accept a gift from a relative or close personal friend whose appearance or interest in a case would, in any event, require disqualification (see 22 NYCRR 100.4[D][5][e]). Therefore, the inquirer may accept gifts from family members, such as a gavel and robe, in recognition of his/her election to a judgeship.