Opinion 16-17

March 10, 2016

Digest:         A judge who maintains a leadership role in a religious organization may not promote fund-raising activities or otherwise personally participate in soliciting funds or goods for charity, but may promote a non-fund-raising weekend retreat. A judge may not be a featured speaker at a religious institution’s anniversary banquet or permit use of his/her name in the event’s promotional materials when fund-raising will occur before and during the banquet.

Rules:          22 NYCRR 100.2; 100.2(A); 100.2(C); 100.4(C)(3); 100.4(C)(3)(b)(i)-(ii), (iv); Opinions 15-154; 14-193; 14-127; 12-23; 11-39; 10-157; 07-17; 95-161; 89-128; 88-13.

Opinion:

         A full-time judge asks if he/she may join in certain activities as a ministries leader for his/her house of worship. He/she states a ministries leader typically “promote[s] activities sponsored by the [denomination’s] conference,” including “a weekend retreat (where a cost is associated in order to attend) and participation in the solicitation of items for clothing drives, food drives and the like.” The judge also asks if he/she may join in another religious entity’s anniversary banquet as a speaker, and if so, whether his/her name may appear on promotional materials. He/she notes “ticket sales for the banquet will cover the... banquet [expenses] only, however they do plan to solicit journal ads for the banquet and plan to seek donations prior to and at the banquet.”

         A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must always act in a manner 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 for a not-for-profit religious organization, subject to certain limitations (see 22 NYCRR 100.4[C][3]). Thus, a judge may assist a not-for-profit religious organization in planning fund-raising, but may not personally participate in soliciting funds or other fund-raising activities (see 22 NYCRR 100.4[C][3][b][i]). A judge “may not be a speaker or the guest of honor” at a religious organization’s fund-raising event, but may accept “an unadvertised award ancillary to such event” (22 NYCRR 100.4[C][3][b][ii]). Also, a judge must “not use or permit the use of the prestige of judicial office for fund-raising or membership solicitation” (see 22 NYCRR 100.4[C][3][b][iv]); see also 22 NYCRR 100.2[C] [judge may not lend the prestige of judicial office to advance private interests]).

          Whether the judge may promote the weekend retreat as a ministries leader depends on whether the event is a fund-raiser. That a fee is charged for participation “is not determinative” in this situation (Opinion 14-193). Rather, the Committee looks to the “stated intent of the organization” as well as the surrounding circumstances in deciding “whether the activity is or is not a fund-raiser” (Opinion 95-161). Indeed, a judge may organize a non-fund-raising social golf outing for the local legal community, where the associated participation fees “will be used solely to cover the actual costs of the [event]” (Opinion 12-23). Here, too, if the retreat is a non-fund-raising event and the entry cost merely covers retreat expenses, the judge may promote the event to other members of the organization. Conversely, if the retreat is a fund-raiser, the judge must not promote it (see 22 NYCRR 100.4[C][3][b][i], [iv]).

         A judge may not personally solicit items for clothing or food drives, or otherwise solicit non-cash or in-kind contributions (see e.g. Opinions 14-127; 10-157; 89-128). Thus, for example, a judge “may not distribute flyers at the local grocery store asking customers to donate food items, or collect donations of either food or cash” (Opinion 10–157). Instead, he/she may participate after such donations are received, by packing and distributing the donated items (see id.). Thus, this judge may not solicit or accept food, clothing or any other in-kind donations on behalf of his/her house of worship, whether as a ministries leader or otherwise, and may not do so indirectly by “promoting” such drives to the congregation. The judge may, however, assist in planning such drives behind the scenes (see generally Opinion 07-17 [judge may serve on the planning committee for a fund-raising walk, but “may not serve or be identified as the chair of the committee or be involved in the solicitation of volunteers”]).

         Whether the judge may be a speaker or be mentioned in promotional materials for a religious institution’s upcoming anniversary banquet again depends on whether the banquet is a fund-raiser. Ordinarily, a modest dinner price intended only to generate enough to cover the cost of the meal and related expenses would signify a non-fund-raising event (see Opinion 14-193). However, as previously noted, “the Committee looks 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’” (id.). Here, as the institution is “seek[ing] donations prior to and at the banquet,” in addition to journal advertisements, the event appears to be intended as a fund-raiser (see Opinion 15-154; cf. Opinion 88-13 [reaching a different result where “no fundraising will occur at the dinner itself”]). Accordingly, the judge may not be “a speaker” at the event (22 NYCRR 100.4[C][3][b][ii]; Opinions 15-154; 11-39) and may not permit his/her name to be used in promotional materials, such as invitations, flyers, or journals that will be issued before the event (see 22 NYCRR 100.4[C][3][b][i]-[ii], [iv]; Opinion 11-39).