Opinion 18-44(B)

March 29, 2018

Digest:         A judge may not sell items at a not-for-profit organization’s concession stand at a sporting event but may participate in food preparation and other behind-the-scenes activities related to operating the concession stand.

Rules:          22 NYCRR 100.2; 100.2(A); 100.4(C)(3)(b)(I); Opinions 10-103; 10-22.

Opinion:

         A judge asks if he/she may sell food and other items at a sporting event concession stand as member of a not-for-profit civic or charitable organization.

         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]). A judge must not personally participate in soliciting of funds or other fund-raising activities, although he/she “may assist” a not-for-profit charitable or civic organization in “planning fund-raising” (see 22 NYCRR 100.4[C][3][b][I]).

         Applying these principles, we concluded a judge “may assist with general setup, food preparation, and cleanup during a volunteer fire department’s annual fund-raiser as long as the judge does not personally participate in the solicitation or collection of funds or other activities that occur during the event” (Opinion 10-22). We noted that “whether a not-for-profit sells food during a fund-raiser to make money or simply for the convenience of those in attendance is not the controlling factor” (id.). Instead, we focus on “the nature of the judge’s participation during a fund-raising event” (id.):

Therefore, if a judge is not involved in selling tickets to an event or in any other way involved in soliciting or collecting money either before or during an event, but is simply engaged in “behind the scenes” activities, such as general setup, food preparation, food service, and cleanup, then he/she may participate in the event....

We so concluded in Opinion 10-103, involving an outdoor fund-raiser where the not-for-profit organization planned to cook, serve and sell food from a trailer. Again, we advised that judge not to participate in selling food (id.). As for cooking and serving food from the trailer, we said: “if payment is simultaneous or virtually simultaneous with the serving of the food, you may cook, but you may not serve, the food” (id.).

         Thus, this judge may not sell items at a sporting event concession stand but may prepare food and do other behind-the-scenes tasks related to operating the concession stand.