Opinion 13-161

December 12, 2013

Digest:         A judge may serve as a deacon in his/her church and may stand at designated locations with other deacons and hold a plate or basket for the collection of tithes and offerings, provided the judge does not participate in the actual solicitation of funds.

Rules:          22 NYCRR 100.2; 100.2(A); 100.2(C); 100.4(C)(3); 100.4(C)(3)(b)(I), (iv); Opinions 10-148; 08-20; 05-17; 03-129; 90-28 (Vol. V); Joint Opinion 89-83/89-84 (Vol. IV).

Opinion:

         The inquiring judge asks the following three questions about the judge’s proposed involvement in his/her religious institution:

1) May a judge serve as a deacon in [his/her] church?

2) May a judge who serves as a deacon in [his/her] church participate in the collection of tithes and offerings if [he/she], at the appointed time, stands in the front of the church sanctuary with other deacons and holds a basket into which the offerings are deposited by those in attendance?

3) [M]ay a judge who is a deacon stand at the church exits and hold an offering plate and receive money from the congregants to be given to a visiting minister?

         The judge states that, regardless of where the deacons stand with their collection plates, they “serve as silent vessels” and “do not in any way solicit or request funds.”

         A judge must 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 may be a member or serve as an officer, director, trustee or non-legal advisor of a not-for-profit religious organization, subject to certain limitations (see 22 NYCRR 100.4[C][3]). Although a judge may assist such an organization in planning fund-raising and may participate in the management and investment of the organization’s funds, a judge may not personally solicit funds or participate in other fund-raising activities (see 22 NYCRR 100.4[C][3][b][I]). Moreover, a judge may not use or permit the use of the prestige of judicial office for fund-raising (see 22 NYCRR 100.4[C][3][b][iv]; see also 22 NYCRR 100.2[C] [a judge may not lend the prestige of judicial office to advance the private interests of the judge or others]).

         The Rules Governing Judicial Conduct do not prohibit a judge from serving as a deacon of a church (see 22 NYCRR 100.4[C][3]; Opinions 10-148 [elder of a church]; 05-17 [trustee of a church]; 03-129 [president of a synagogue]) or from personally making contributions, whether at the level of a tithe or otherwise, to any permissible charity or not-for-profit organization (see e.g. Opinion 10-148).

         Such permissible extra-judicial activities are subject, however, to the prohibition on personal solicitation of funds (see 22 NYCRR 100.4[C][3][b][I], [iv]; Opinions 10-148; 05-17; 03-129; Joint Opinion 89-83/89-84 [Vol. IV]). Thus, although a judge may participate in a church-sponsored mission to Africa, the judge must not participate in, or lend the prestige of judicial office to, the congregation’s efforts to raise funds for the mission (see Opinion 08-20). The Committee has also advised that a judge must not solicit funds from the congregation by discussing the topic of tithing and other contributions to the church as part of his/her sermon (see Opinion 10-148) and may not serve as the Deacon in charge of a church fund-raising event or otherwise participate “in any prominent or substantial manner,” as this would involve the judge “too closely” in fund-raising efforts (Opinion 90-28 [Vol. V]).

         Nonetheless, the Committee has also advised that a judge may “perform[] the simple, ministerial act of physically passing the collection plate” as an usher during a religious service at a house of worship (Joint Opinion 89-83/89-84 [Vol. IV]). As the Committee explained (id.):

[t]his physical act, while it may follow a solicitation of funds made prior to the collection by a clergyman or member of the congregation, does not in itself constitute such a solicitation. So long as the judge does not participate in the actual solicitation, the mere physical act of collecting contributions is not prohibited.

         Here, too, it does not appear that serving as a deacon and silently holding a collection plate with other deacons at the front of the church sanctuary or at the church exits will require the judge to be prominently or substantially involved in fund-raising efforts or the solicitation of funds within the meaning of the Committee’s prior opinions (see Opinions 10-148; 08-20; 90-28 [Vol. V]). Rather, the judge’s involvement in such activity would be essentially passive and in accordance with conduct permitted in Joint Opinion 89-83/89-84 (Vol. IV).

         Accordingly, the Committee concludes that a judge may serve as a deacon in his/her church and may stand at designated locations with other deacons and hold a plate or basket for the collection of tithes and offerings or other contributions, provided that the judge does not participate in the actual solicitation of funds.