Opinion 13-134

October 24, 2013

Digest:         (1) A judge who regularly presides over criminal matters in which members of the local Fraternal Order of Police appear must not be a member or officer of the organization; must not attend the organization’s monthly dinner meetings; and must likewise prohibit his/her personal appointees from being members or officers of the organization and attending the organization’s monthly meetings. (2) The judge may, as he/she proposes, attend fund-raising events held by the local Fraternal Order of Police in support of a charity as a paying guest; contribute financially to the organization without joining as a member; and contribute to the organization’s charity drives. The judge need not prohibit his/her personal appointees from undertaking similar charitable efforts in connection with the organization, if they wish to do so.

Rules:          22 NYCRR 100.2; 100.2(A); 100.3(C)(2); 100.4(A)(1)-(3); 100.4(C)(3); 100.4(C)(3)(b)(ii); Opinions 12-88; 08-161; 06-170; 04-140; 02-81; 00-108 (Vol. XIX); 99-137 (Vol. XVIII); 98-100 (Vol. XVII); 98-40 (Vol. XVI); 95-131 (Vol. XIV); 94-85 (Vol. XII); 92-112 (Vol. X).

Opinion:

         The inquiring judge states that he/she has previously declined to attend functions of the local Fraternal Order of Police, because “police officers often testify in my Court and member prosecutors regularly appear before me.” However, the judge states that he/she has become aware that the organization’s membership is not strictly limited to “active and retired police officers and prosecutors,” as the organization also welcomes judges and their personally appointed court employees. In light of these facts, the judge asks:

         1.       May I or my personally appointed confidential employees belong to the local Fraternal Order of Police, which does not make political endorsements, as members?

         2.       If allowed to be members, may I or my personally appointed confidential employees serve as officers in that organization?

         3.       May I or my personally appointed confidential employees attend the organization's monthly dinner functions or other events held in support of a particular charity, as paying guests?

         4.       May I or my personally appointed confidential employees contribute financially to that organization without joining as members, including contributing to the organization's charity drives?

         A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must always 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 are not incompatible with judicial office and do not (1) cast reasonable 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 (see 22 NYCRR 100.4[A][1]-[3]). Subject to these and other limitations, a judge may be a member or serve as an officer, director or non-legal advisor of a civic, fraternal or charitable organization not conducted for profit (see 22 NYCRR 100.4[C][3]).

1. Membership, Leadership Positions, and Monthly Dinners

         The Committee has previously advised that a judge may not be a member of a county police association (see Opinion 94-85 [Vol. XII]); an association of active police officers and chiefs (see Opinion 92-112 [Vol. X]); or the county Deputy Sheriffs' Association (see Opinion 99-137 [Vol. XVIII]). Indeed, a judge may not even be an honorary member of a local sheriffs’ or deputy sheriffs’ association (see Opinions 12-88; 99-137 [Vol. XVIII]). The Committee notes that, even though the local Fraternal Order of Police described in the present inquiry may be open to admitting judges and court employees as members, it remains an organization with an “explicit and exclusive law enforcement orientation” (Opinion 98-100 [Vol. XVII]). Therefore, the Committee concludes that membership in the organization is incompatible with judicial office because it could cause the judge’s impartiality to reasonably be questioned (see generally Opinions 12-88; 99-137 [Vol. XVIII]; 94-85 [Vol. XII]; 92-112 [Vol. X]). Therefore, the inquiring judge, who regularly presides over criminal matters, should not be a member of the local Fraternal Order of Police.

         As for the judge’s personal appointees, the Committee notes that a judge must require his/her staff to observe the standards of fidelity and diligence that apply to the judge (see 22 NYCRR 100.3[C][2]). Although the limitations on the extrajudicial conduct of a judge do not automatically apply to the judge’s law clerk or other personal appointees (see Opinion 00-108 [Vol. XIX]), the inquiring judge has indicated that police officers who are members of the organization “often” testify in the judge’s court, and prosecutors who are members of the organization “regularly” appear before the judge. Under the circumstances presented, therefore, to avoid any possible appearance of impropriety, the inquiring judge should instruct his/her personal appointees to refrain from joining the organization (see 22 NYCRR 100.2).

         Because the judge and his/her personal appointees may not be members of the Fraternal Order of Police, they also may not serve as officers of the organization (see also Opinions 94-85 [Vol. XII] [judge may not serve as treasurer of a county police association]; 98-100 [Vol. XVII] [judge may not serve on the board of directors of law enforcement foundation, even on an “honorary” basis]).

         Under the facts presented, it appears that the organization’s “monthly dinner functions” are, in effect, its monthly business meetings. Therefore, the judge’s attendance at such meetings would create the appearance that the judge is a member of the local Fraternal Order of Police. Because actual membership is prohibited, the Committee believes the judge also should not engage in conduct that would create the appearance that he/she is a member (see 22 NYCRR 100.2). Therefore, the judge must not attend the monthly dinner functions and, under the circumstances presented, must also instruct his/her personal appointees to refrain from attending such events.

2. Contributions and Attendance at Charitable Events

         The Committee has advised that a judge may contribute to a local not-for-profit Police Benevolent Association, even if local police officers who are members of that group regularly appear in the judge’s court (see Opinion 98-40 [Vol. XVI]; accord, Opinion 08-161), just as a judge may contribute to a not-for-profit Legal Aid Society whose attorneys may represent litigants before the judge (see Opinions 04-140; 95-131 [Vol. XIV] [“The mere making of such a charitable contribution does not in any way ‘cast reasonable doubt on the judge’s ability to act impartially as a judge.’”).¹

         Similarly, the Committee has advised that a judge may attend a brunch to raise funds for a Police Benevolent Association scholarship, provided that he/she is not the speaker or guest of honor (see Opinion 02-81; 22 NYCRR 100.4[C][3][b][ii]).

         The Committee has also advised that a village justice may attend purely social functions of the county Deputy Sheriffs’ Association (see Opinion 99-137 [Vol. XVIII]); and a judge may attend a holiday party sponsored by local law enforcement agencies “whose officers might regularly appear in the judge’s court,” provided the judge avoids any actions that may be perceived to advance the private interests of the organization, or of individuals attending, or which may otherwise create an appearance of impropriety (see Opinion 06-170).

         Accordingly, the Committee concludes that the judge may, as he/she proposes to do, attend events held by the local Fraternal Order of Police in support of a particular charity as a paying guest;² contribute financially to the Fraternal Order of Police without joining as a member; and contribute to the organization's charity drives (see Opinions 08-161; 02-81; 98-40 [Vol. XVI]; 22 NYCRR 100.4[C][3][b][ii]).

         The judge need not prohibit his/her personal appointees from undertaking similar charitable efforts in connection with the local Fraternal Order of Police, if they wish to do so.³

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     ¹ The Committee has cautioned, however, that while a “relatively modest” contribution to a legal services organization that appears before the judge does not ordinarily require disclosure, “a particularly large contribution that is essential to sustain the operations of the particular agency [that appears before the judge] is more likely to create a reasonable doubt as to the judge’s ability to act impartially” and therefore may require disclosure (Opinion 04-140).

     ² When a judge attends a fund-raiser as a paying guest, as the inquiring judge proposes to do, ordinarily he/she is not the speaker or guest of honor at the event.

     ³ The Committee notes that the judge’s personal appointees may contact the Unified Court System’s Office of Court Administration, the agency with the ultimate authority to interpret Part 50, for guidance on how Part 50 applies to their particular circumstances. (Contact: ETHICS HELPLINE: 1-888-28ETHIC.)