Opinion 12-188

June 3, 2013

Dear Justice:

         This responds to your inquiry (12-188) asking whether you may continue to serve as treasurer of a not-for-profit organization that provides services to the municipality in which you preside and to continue your role as the not-for-profit’s service provider. You indicate that the services involve feral and abandoned animals and that the municipality compensates the organization on a per animal basis.

         A judge is permitted to serve as an officer of a charitable or civic organization not conducted for profit as long as doing so does not cast reasonable doubt on the judge’s capacity to act impartially as a judge; does not detract from the dignity of judicial office; or does not interfere with the proper performance of judicial duties and is not incompatible with judicial office, subject to certain limitations (22 NYCRR 100.4[A][1]-[3]). A part-time judge may not serve as an officer of an organization if it is likely that the organization will be engaged in proceedings that ordinarily would come before the judge (22 NYCRR 100.4[C][3][a][I]). And, while the judge may assist the 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 (22 NYCRR 100.4[C][3][b][I]). Subject to these limitations, you may continue to serve as treasurer of the not-for-profit organization.

         The Committee previously has addressed circumstances where a judge sought to provide products and/or services to the municipality where the judge presides. The Committee has advised that a town or village justice may not maintain a continuing business relationship with the municipality where the judge presides (see Opinion 06-66 [judge who is CEO of substantial manufacturing business may not market products to municipality where judge presides that would involve continuing business relationship]; 96-55 [Vol. XIV] [judge owner of local insurance and real estate agency may not permit agency to submit bids to secure village insurance contracts]), but may provide services on an occasional basis (Opinion 99-128 [Vol. XVIII] [town justice may serve on an occasional basis as town engineer and be compensated).

         You indicate that your not-for-profit organization “invoices” the municipality on a per animal basis. Therefore, it does not appear that the municipality has retained your organization or otherwise entered into an exclusive agreement for your organization’s services. Thus, the services you provide on behalf of your not-for-profit organization are similarly occasional in nature, and therefore permissible.

         While you may not engage in fundraising activities on behalf of your not-for-profit organization (22 NYCRR 100.4[C][3][b][I]), the organization may be compensated for the services you provide.

         I have enclosed Opinions 06-66, 99-128 and 96-55 for your convenience.

Very truly yours,

George D. Marlow, Assoc. Justice

Assoc. Justice, Appellate Division First Dept. (Ret.)

Committee Chair

Encls.