Opinion 12-91

June 14, 2012

Digest:         A part-time judge may, to the extent legally permitted, authorize his/her restaurant to promote sales by advertising that the restaurant will contribute part of its sales to a not-for-profit organization, provided that the judge’s name and judicial office are not associated with the promotion.

Rules:          22 NYCRR 100.2; 100.2(A); 100.2(C); 100.4(C)(3)(b)(i); 100.4(D)(1)(a); 100.4(D)(3); 100.6(B)(4); Opinions 10-22; 09-218; 09-28; 08-161; 08-61; 02-82.

Opinion:

         The inquiring part-time judge is a majority shareholder of a corporation that operates a local restaurant. The judge indicates that the restaurant is professionally managed and operated by the corporation’s employees and that the judge seldom participates in the restaurant’s operations. The judge asks whether he/she may permit the restaurant to “run[] promotional tie-in events where on a particular day, the [restaurant] will donate [a percentage] of its sales” to a particular not-for-profit organization whenever a customer mentions that organization.¹ The judge notes that his/her name will not appear in connection with the promotion. 

         A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). Unlike full-time judges, part-time judges are not prohibited from serving as an officer, director, manager, general partner, advisor, employee or other active participant of a business entity (see 22 NYCRR 100.4[D][3]) but must not engage in business dealings that may reasonably be perceived to exploit the judge’s judicial position (see 22 NYCRR 100.4[D][1][a]). A judge may “assist” a not-for-profit educational, religious, charitable, cultural, fraternal or civic organization in “planning fund-raising” but must not personally participate in the solicitation of funds or other fund-raising activities (see 22 NYCRR 100.4[C][3][b][i]) and must not lend the prestige of judicial office to advance the private interests of the judge or others (see 22 NYCRR 100.2[C]).

         The Committee has advised that a judge may make personal contributions to not-for-profit educational, religious, charitable, cultural, fraternal or civic organizations (see e.g. Opinions 09-218; 08-61). A part-time judge who owns and operates a restaurant may likewise permit his/her restaurant to make contributions or donate gift certificates to police organizations or offer reduced rates for functions sponsored by police organizations (see Opinion 08-161).

         Here, the inquiring part-time judge’s restaurant will, in effect, be simultaneously promoting its own sales and raising money for charity. With respect to the fund-raising aspects, the judge may participate “behind the scenes” in planning the promotional event (see 22 NYCRR 100.4[C][3][b][i]; Opinion 10-22). However, the promotion should be in the restaurant’s name, not the judge’s, and the judge must not personally solicit funds or permit the use of his/her name or the prestige of judicial office in connection with the promotion (see Opinions 09-28 [judge may assist with the logistics for fund-raising event sponsored by fraternal police organization to benefit charity, but may not solicit donations or allow his/her name to be used in any aspect of fund-raising]; 02-82 [part-time judge may participate in local merchants’ association’s annual craft fair, which raises funds for civic and charitable projects, provided judge does not solicit funds or permit the use of his/her name or title for that purpose]).

         That the judge’s restaurant’s promotion has a commercial as well as a charitable component does not render it in violation of judicial ethics, as the prohibition on being “an active participant of [a] business entity” applies only to full-time judges (see 22 NYCRR 100.4[D][3]; 100.6[B][4]; cf. Opinions 08-161; 02-82).

         Accordingly, the inquiring part-time judge may, to the extent legally permitted, authorize his/her restaurant to promote sales by advertising that the restaurant will contribute part of its sales to a not-for-profit organization, provided that the judge’s name and judicial office are not associated with the promotion. Under the circumstances presented, because the inquiring judge indicates the restaurant’s day-to-day operations are ordinarily handled by its employees without participation by the judge, the Committee believes that the judge should not be present in the restaurant on the day of the promotion.

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     ¹ The judge states that the restaurant will not solicit any direct contributions to the organization from its customers beyond the restaurant’s usual prices, but will instead contribute a percentage of its sales revenue to the organization.