Opinion 12-22

March 8, 2012

Digest:         A part-time judge (1) may be one of the original organizers of a not-for-profit organization that will educate students about the law; (2) may serve as the organization’s Executive Director and as a member of its board of directors; (3) may not personally solicit volunteers to serve on the organization’s board, but may permit any non-judge among the original organizers of the entity to do so on the judge’s behalf, provided that the judge does not use or permit the use of the prestige of judicial office for this purpose; (4) may not personally solicit volunteer guest teachers, except from among existing members of the organization; and (5) may accept a grant or fellowship for any permissible purpose, provided that the grant or fellowship is awarded on the same terms and criteria applied to other applicants.

Rules:          Judiciary Law §212(2)(l); 22 NYCRR 100.2; 100.2(A); 100.2(C); 100.4(A)(1)-(3); 100.4(C)(3); 100.4(C)(3)(a)(I); 100.4(C)(3)(b)(I), (iv); 100.4(D)(5)(g); 100.6(B)(4); 22 NYCRR 101.1; Opinions 09-186; 09-131; 09-57; 06-113; 05-66; 02-80; 98-119 (Vol. XVII); 96-141 (Vol. XV); 88-134 (Vol. III).

Opinion:

         A part-time judge seeks to start, develop and run a national not-for-profit organization to help educate youth in particular communities about their rights and responsibilities as U.S. citizens. The judge previously served as a legal fellow with a focus on constitutional literacy and taught a year-long Constitutional Law course to high school students to help them “become responsible citizens and critical thinkers as well as to understand the consequences of their actions as they relate to the legal system.” The judge anticipates that his/her new non-profit organization will “bring similar and much needed programming to [additional] areas.” The judge asks a series of questions about starting a non-profit, recruiting volunteers, and seeking funding:

         1.       Can a part-time judge start a new non-profit organization during his or her judicial term?

Can a part-time judge serve as the Executive Director of a non-profit organization aimed at utilizing volunteers and fellows in the legal profession to teach [students] their rights and responsibilities under the U.S. Constitution?

         2.       Can a part-time judge serve on the Board of Directors of a national non-profit organization aimed at utilizing volunteers and fellows in the legal profession to teach [students] their rights and responsibilities under the U.S. Constitution?       

         3.       Can a part-time judge recruit people to serve on the Board of Directors of such an organization if those people reside (1) outside of the state where the judge serves and are unlikely to ever appear in his or her courtroom, (2) outside of the county where the judge serves and are unlikely to appear in his or her courtroom, (3) in a neighboring town or village, or (4) in the town or village where the judge resides and serves as judge?

         4.       Can a part-time judge recruit attorneys, judges, and court administrators to serve as volunteer guest teachers in their local public high schools (1) in the municipality where the judge resides and serves as judge, (2) in other municipalities in the state of NY, and (3) in municipalities in states other than NY?

         5.       Can a part-time judge apply for and receive a fellowship that will mentor him or her in running a non-profit organization and will provide the organization with seed money to be used for (1) specific purposes or (2) non-specific purposes?

         6.       What is the distinction, if any, between the solicitation of funds to be received as gifts (which is clearly not allowed) and receiving funds as part of the contract between a fellow and fellowship grantor?

         7.       Are the [_________ Grants and the _______ Fellowships] considered fellowships or grants? As a judge, am I allowed to apply for either or both of these opportunities in creating my non-profit organization?

         8.       Is a part-time judge allowed to apply for or receive (1) a national grant or fellowship, (2) a state grant or fellowship in a state other than the one where the judge resides and serves as judge, (3) a local grant or fellowship in a locality other than the one where the judge resides and serves as judge, (4) a local grant or fellowship in the locality where the judge resides and serves as judge?

         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]). Furthermore, a judge may not lend the prestige of judicial office to advance the private interests of the judge or others (see 22 NYCRR 100.2[C]). A judge may accept a scholarship or fellowship awarded on the same terms and based on the same criteria applied to other applicants (see 22 NYCRR 100.4[D][5][g]), and may otherwise engage in extra-judicial activities that do not (1) cast 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]). A part-time judge may accept private employment provided it is not incompatible with judicial office and does not conflict or interfere with the proper performance of the judge’s duties (see 22 NYCRR 100.6[B][4]). And, a judge may serve as an officer, director or non-legal advisor of an educational organization not conducted for profit, subject to certain limitations (see 22 NYCRR 100.4[C][3]). 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 is prohibited from personally participating in the solicitation of funds or other fund-raising activities (see 22 NYCRR 100.4[C][3][b][I]). Also, a judge is prohibited from using or permitting the use of the prestige of judicial office for fund-raising or membership solicitation (see 22 NYCRR 100.4[C][3][b][iv]).

Questions 1-3.

         In the Committee’s view, a part-time judge may be one of the original organizers of a not-for-profit organization that will educate students about issues relating to the law, the legal system and the administration of justice (see 22 NYCRR 100.4[C][3]).¹ The judge may thereafter serve as an officer and director of the organization (see id.) and may be employed as its Executive Director, provided the employment does not conflict or interfere with the proper performance of the judge’s judicial duties (see Opinion 09-131 [part-time judge may continue his/her employment as Deputy Executive Director and Director of Advocacy for a non-profit court reform organization, subject to limitations]).

Questions 4-5.

         The Committee has previously advised that a judge may not personally solicit volunteers to serve on a not-for-profit organization’s board of directors (see Opinions 06-113; 98-119 [Vol. XVII]; 22 NYCRR 100.4[C][3][b][I], [iv]). On these facts, the Committee concludes that the inquiring judge may permit any non-judge who is one of the original organizers of the entity to solicit board members, provided that the judge or non-judge does not use or permit the use of the prestige of judicial office for this purpose (see 22 NYCRR 100.4[C][3][b][iv]). The judge may give the entity’s other organizers the names of potential candidates to serve on the board (see Opinions 06-113; 05-66).

         Similarly, the judge may not personally solicit volunteer guest teachers (see Opinions 02-80; 98-119 [Vol. XVII]), except from among persons who are already members of the organization (see Opinion 09-57 [a judge who serves on the board of a not-for-profit organization may recruit other organization members to participate in a project sponsored by the organization]).

         The Committee notes that the restrictions on personal solicitation of board members and volunteer guest teachers apply both within the judge’s geographic area and outside of it (see Opinion 88-134 [Vol. III] [noting that judicial fund-raising activities are proscribed “without geographic limitation, either as to location of the organization involved or the potential contributors”]; cf. Opinion 96-141 [Vol. XV] [noting that the prohibition against the practice of law by full-time judges “is not limited to the geographic boundaries of New York State”]).

Questions 6-9.

         Although a judge may not personally participate in soliciting funds or in other fund-raising activities on an organization’s behalf (see 22 NYCRR 100.4[C][3][b][I], [iv]; Opinion 09-131), a judge may apply for, and accept, a grant or fellowship for any permissible purpose, provided the judge participates on the same basis as other candidates for the fellowship or grant (see 22 NYCRR 100.4[D][5][g] [permitting judges to accept scholarships or fellowships “awarded on the same terms and based on the same criteria applied to other applicants”]; Opinion 09-186 [analogizing “free room and board awarded to residents of the artist colony” to the more traditional “scholarship or fellowship” specifically permitted under the gift rules]). The Committee concludes that the permissibility of a particular grant or fellowship does not depend on whether the funds are awarded for “specific” or “non-specific” purposes, or whether the fellowship provides “seed money” to the judge’s not-for-profit organization and/or mentorship to the judge. Moreover, whether a grant or fellowship is national or local in scope is irrelevant to application of the principles that govern the propriety of applying for a grant or fellowship.

         The Committee declines to respond to Question 7, as it appears to be general and hypothetical, and to Question 8, as the Committee is not an investigative or fact-finding body and, thus, cannot investigate the suitability of specific named grants or fellowships for the inquiring judge’s needs (see Judiciary Law §212[2][l]; 22 NYCRR 101.1).

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     ¹ The Committee notes that the not-for-profit organization the judge proposes to create will be devoted to legal education, and will seek to promote constitutional literacy among students. The inquirer does not indicate that the organization will engage in legal proceedings (compare 22 NYCRR 100.4[C][3][a][I]) and based on the information provided, it does not appear that its activities as contemplated will raise serious concerns relating to judicial dignity or impartiality, or compatibility with judicial office (compare 22 NYCRR 100.4[A][1]-[3]).