Opinion 18-151

March 14, 2019

Digest:         A town justice may not chair the membership committee of the town’s volunteer fire department. 

Rules:          22 NYCRR 100.2; 100.2(A); 100.3(A); 100.4(C)(3); 100.4(C)(3)(b)(I), (iv); Opinions 10-137; 09-57; 06-113; 05-66; 98-119.

Opinion:

         A town justice asks if he/she may serve as chair of the membership committee of the town’s volunteer fire department. The chair’s responsibilities include assisting in drafting recruitment literature, coordinating the membership process, receiving and reviewing applications for membership, organizing and participating in interviews, voting on acceptance of applicants, and coordinating the orientation of accepted applicants. The judge says he/she would not personally recruit applicants.

          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]). The judge’s judicial duties take precedence over all the judge’s other activities (see 22 NYCRR 100.3[A]). A judge may be a member or serve as an officer, director, trustee or non-legal advisor of a not-for-profit fraternal or civic organization, subject to certain limitations (see generally 22 NYCRR 100.4[C][3]). Among other restrictions, a judge must not personally solicit funds (see 22 NYCRR 100.4[C][3][b][I]) and must not permit the use of the prestige of judicial office “for fund-raising or membership solicitation” (see 22 NYCRR 100.4[C][3][b][iv]).

         In Opinion 10-137, we advised that a judge may not accept a leadership position that would make him/her “responsible for increasing the membership” of a not-for-profit civic or fraternal organization such as the Boy Scouts of America. We reasoned that if a judge accepted such an appointment, “it would be difficult, if not impossible, to avoid the perception that the prestige of judicial office is being used to solicit membership in the organization” (id.).

         Here, we similarly believe that if the judge chaired the volunteer fire department’s membership committee, it would be difficult to avoid the perception that the prestige of judicial office is being used to solicit membership in the fire department. We recognize that the judge’s proposed responsibilities would not include direct personal recruitment of members, and he/she would not communicate with any potential recruits until after they have applied for membership. However, we do not believe these circumstances warrant a departure from the conclusion reached in Opinion 10-137 and prior opinions (see Opinions 09-57 [a judge may recruit members from within the organization but not from the general public]; 06-113 [judge may not solicit volunteers to serve on the board of directors of a not-for-profit]; 05-66 [judge who is a member of the board of a not-for-profit may not ask persons to join the board]; 98-119 [judge should not engage in the procurement of volunteers for not-for-profit]).

         Thus, the judge may not chair the membership committee for the fire department. We note that the judge may nonetheless assist strictly behind the scenes with many aspects of the recruitment process, without the title or function of membership committee chair, for example by drafting recruitment literature, helping review applications, helping interview applicants, or coordinating the orientation of accepted applicants.