Opinion 12-58

April 26, 2012

Digest:         A judge serving as president of a fire company organized as a not-for-profit may not engage in fund-raising activities, including the encouraging of members of the legislature to appropriate funds for the organization.

Rule:            22 NYCRR 100.2; 100.2(A); 100.4(A)(1)-(3); 100.4(C)(3)(a)(i), (b)(i); Opinions 12-66, 11-22; 03-38; 01-42 (Vol. XX); 00-33(Vol. XIX); 95-02 (Vol. XIII), 90-50 (Vol. V).

Opinion: 

         A newly elected part-time town justice asks whether he/she may continue to serve as president of a fire company. The judge advises that the fire company is a not-for-profit corporation and that the president and other officers are not elected in a public election but, instead, by the members of the corporation. The judge further advises that his/her duties include preparing the fire company’s operating budget, presenting it to the boards of the town and village that fund the fire company, and appearing at a public hearing to answer questions about the proposed budget.

         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]). A judge is permitted to engage in extra-judicial activities but must conduct all his/her extra-judicial activities so they do not cast reasonable doubt on the judge’s capacity to act impartially as a judge; do not detract from the dignity of judicial office; or do not interfere with the proper performance of judicial duties and are not incompatible with judicial office (see 22 NYCRR 100.4[A][1]-[3]). In particular, a part-time judge may be an officer of a not-for-profit civic organization that will not be engaged in proceedings that ordinarily would come before the judge, but the judge may not personally participate in the solicitation of funds or other fund-raising activities (see 22 NYCRR 100.4[C][3][a][i], [b][i]).

         The Committee previously has advised that a judge may serve as a member of a library board (see Opinion 01-42 [Vol. XX]) but may not participate in activities designed to raise funds for the library (see Opinion 03-38; see also Opinion 00-33 [Vol. XIX] [judge may attend public meeting to support bond proposition to expand library but may not chair the meeting or sit on the dais]; 95-02 [Vol. XIII] [judge cannot encourage members of the legislature to appropriate funds and/or increase the appropriation for the library]). Similarly, the inquiring judge may serve as president of a not-for-profit fire company¹ and prepare a budget that will be presented to the boards of the town and village. However, the judge may not personally present and justify the budget to the town and village boards for approval or appear at the public budget hearing to answer questions about the proposed budget and/or to encourage members of the town boards to approve the budget (see Opinion 95-02 [Vol. XIII]). Rather, the fire company must appoint another individual to fulfill those responsibilities.

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      ¹ In contrast, a judge who was previously elected fire district commissioner; elected to the board of commissioners for a fire district; or elected treasurer of a fire district in a public election cannot continue to serve in both capacities (see Opinions 12-66; 11-22; 90-50 [Vol. V]).