Opinion 18-144

October 18, 2018

Digest:         A full-time judge may participate in a task force primarily concerned with issues of fact and policy connected to public health and safety if the task force is sponsored by a not-for-profit organization, and is not itself a governmental committee or commission or other governmental position.

Rules:          22 NYCRR 100.2; 100.2(A); 100.4(A)(1)-(3); 100.4(C)(2)(a); 100.4(C)(3)(a)(I)-(ii); Opinions 17-91; 16-157; 15-15; 10-187; 07-210; 06-137; 91-40.

Opinion:

         A full-time judge asks if he/she may accept an invitation from a not-for-profit charitable or civic community organization to participate in a task force to reduce and prevent lead poisoning. The invitation purports to be made “[o]n behalf of” certain governmental bodies, as well as the non-profit organization. The task force will include representatives of several governmental entities at the city and county level, as well as a local hospital, “that can take direct action and/or influence actions that will affect systems change.” Among other things, it will (a) consider possible “changes to existing legislation on the city, county and state levels,” (b) “build a thoughtful plan for policy change with an emphasis on primary prevention” and community involvement, and (c) “meet monthly and report progress to elected officials” and others. In a prior judicial assignment, the judge “handled a great many code violation cases involving lead paint,” but presently has “no cases, either personal injury or otherwise, where lead paint contamination is at issue.”

         A judge must always 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]). Thus, a judge must conduct all of his/her extra-judicial activities so 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 full-time judge must not accept appointment to “a governmental committee or commission or other governmental position concerned with issues of fact or policy in matters other than the improvement of the law, the legal system or the administration of justice” (22 NYCRR 100.4[C][2][a]). Conversely, a full-time judge generally may serve as an officer, director, trustee or non-legal advisor of a not-for-profit civic or charitable organization, if it is not likely to be engaged in proceedings that ordinarily would come before the judge (see 22 NYCRR 100.4[C][3][a][I]) and is not engaged regularly in adversarial proceedings in any court (see 22 NYCRR 100.4[C][3][a][ii]).

         A full-time judge may serve on the board of directors of a not-for-profit local development corporation (see Opinion 15-15) or serve as consultant to a non-profit organization that educates people with addiction issues, where no defendants before the judge are enrolled in the program (see Opinion 10-187). Indeed, we have said a full-time judge may serve on the Board of Directors of a not-for profit New York State Public Benefit Corporation created for the purpose of operating a not-for-profit public hospital and cancer research center “if such entity is not a governmental committee or commission” (Opinions 07-210). Here, we see no inherent impropriety in the task force’s described mission and activities, and we assume it is unlikely to be involved in any litigation. Nor does its work seem likely to conflict with the judge’s judicial duties or result in frequent disqualification. Had the invitation been extended solely by the not-for-profit organization, without reference to a governmental entity, we would unhesitatingly say the judge’s participation was ethically permissible.

         However, the invitation was also extended on behalf of certain governmental entities, and this task force is primarily concerned with issues of fact and policy connected to public health and safety, unrelated to the improvement of the law, the legal system or the administration of justice. Although we cannot investigate and determine the legal status of the task force, we note that if the task force is “a governmental committee or commission or other governmental position” (22 NYCRR 100.4[C][2][a]), the judge must not accept the appointment (see e.g. Opinions 16-157 [full-time judge may not serve on a regional emergency medical services council, in light of “the policy and decision making authority [it has] under the Public Health Law”]; 91-40 [full-time judge may not serve on a statutory committee which advises the state commissioner of health on matters relating to organ transplant procurements]; 17-91 [full-time judge may not accept an appointment by the county health commissioner to serve as an unpaid hearing officer under the Public Health Law to adjudicate a certain category of health-related violations]; 06-137 [full-time judge may not serve on a county youth board’s advisory committee which seeks “to promote ‘healthy outcomes’ and ‘positive development’ in youth”]).

         In sum, if the task force has been established by the not-for-profit group that invited the judge to participate, and is not “a governmental committee or commission or other governmental position” (22 NYCRR 100.4[C][2][a]), then this judge may participate.