Opinion 13-142

October 24, 2013

Digest:         A judge who presides in a collaborative problem-solving court may, on behalf of his/her court, accept an award and associated monetary grant to the court from a not-for-profit organization at a non-fund-raising event and may make appropriate remarks to express appreciation for the award.

Rules:          Judiciary Law §212(1)(n), (u); 22 NYCRR 100.2; 100.2(A); 100.4(A)(1)-(3); 100.4(C)(3)(b)(I)-(ii), (iv); 100.4(D)(5); Opinions 11-28; 09-167; 08-191; 05-104; 02-33; 95-161 (Vol. XIV); 93-42 (Vol. XI).

Opinion:

         The inquiring judge states that he/she presides in a local community-based court which “uses mandated services, such as drug treatment, mental health services, trauma counseling, youth services, etc. to try to produce more meaningful resolutions on our cases.” One of the outside not-for-profit organizations that has worked with the Office of Court Administration and the Center for Court Innovation to “support[] these services over the years through grants” has advised the judge that they “would like to honor the work of” the Center for Court Innovation and the judge’s court, by presenting the judge’s court with an award and an accompanying grant for certain programs at the court. The judge states that the organization has “asked me to accept the award and speak for a few moments” along with an individual who successfully completed a treatment program several years ago through the court. The organization has advised the judge that the event is not intended as a fund-raiser in that “all the costs are underwritten by the [not-for-profit organization’s board], that they do not sell tickets, do not charge admission and do not ask for donations.” However, the organization plans to “make a very light mention ... to ask people to keep us in mind and be generous in the coming holiday season” toward the end of the event. The judge asks whether he/she may accept the award and associated grant on behalf of the court and make some brief remarks.

         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]). Thus, a judge must conduct all of his/her extra-judicial activities so that they 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 and are not incompatible with judicial office (see 22 NYCRR 100.4[A][1]-[3]). A judge must not personally participate in a not-for-profit organization’s solicitation of funds or other fund-raising activities or otherwise permit the use of the prestige of judicial office for fund-raising or membership solicitation (see 22 NYCRR 100.4[C][3][b][I], [iv]). A judge also may not be a speaker or the guest of honor at a not-for-profit organization’s fund-raising events, although he/she may attend such events and may accept an unadvertised award ancillary to the event (see 22 NYCRR 100.4[C][3][b][ii]).

         The Committee has previously advised that a judge may attend and receive an award at an awards dinner sponsored by a local not-for-profit organization that is a member of a drug court team in the drug court over which the judge presides, provided that the dinner “does not involve fund-raising” (Opinion 02-33). The reasoning of Opinion 02-33 applies to the present inquiry, as the inquiring judge’s court likewise appears to “eschew the traditional adversarial court model in favor of a cooperative one” (Opinion 08-191) in order to “encourage defendants” to address their problems and “become law abiding, productive members of society” (id.).

         Because this awards event is clearly not intended as a fund-raiser under the facts presented (cf. Opinions 05-104 [judge may be honored at an educational foundation’s breakfast, even if there may be some small net sum which may benefit the sponsor, where “the stated intent of the event is to honor prominent graduates of the institution and not to raise funds”]; 95-161 [Vol. XIV] [looking to the “stated intent of the organization” as well as the surrounding circumstances in determining “whether the activity is or is not a fund-raiser”]), the judge may be an announced speaker or guest of honor and may accept an announced award at the event (compare 22 NYCRR 100.4[C][3][b][ii]). Of course, the inquiring judge should not participate, or appear to participate, in any request by the organization that the audience “keep [the organization] in mind and be generous in the coming holiday season” or other such fund-raising efforts (see 22 NYCRR 100.4[C][3][b][I], [iv]).

         Although a judge’s ability to accept a gift is subject to certain restrictions (see generally 22 NYCRR 100.4[D][5]), different considerations apply when a judge is not accepting a gift personally but only on behalf of the Unified Court System (see Opinion 09-167 [a judge may accept a piece of artwork on behalf of the Unified Court System and display it in the courtroom after obtaining his/her administrative judge’s approval to do so]) or on behalf of the municipality that maintains the courthouse (see Opinion 93-42 [Vol. XI] [a town justice may, on behalf of the town, accept a recording system for the court from a district attorney’s office]).¹

         Accordingly, the Committee concludes that a judge who presides in a collaborative problem-solving court may, on behalf of his/her court, accept an award and associated monetary grant to the court from a not-for-profit organization at a non-fund-raising event and may make appropriate remarks to express appreciation for the award.

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     ¹ In general, it may be helpful for a judge to “consult with [his/her] administrative judge to determine what, if any, administrative procedures” the judge should follow in accepting a gift or grant on behalf of his/her court or the Unified Court System (Opinion 11-28 [noting that “the Chief Administrative Judge is responsible for maintaining court facilities” under the Judiciary Law and “is designated the state’s agent to accept any grant or gift for the purpose of carrying out his/her responsibilities”], relying on Judiciary Law §212[1][n], [u]).