Opinion 18-90
June 21, 2018
Digest: (1) A judge may be on the board of a non-profit ambulance corporation seeking to create an ambulance district, but must resign if one is created.
(2) As a board member, the judge: (a) must not partake in the corporation’s program about a proposed ambulance district; (b) may attend the event as an observer; and (c) may be publicly identified as a board member during the event, with other board members, and may be identified as a judge if similar titles identify other members.
Rules: Town Law §§ 198(10-f); 202(3); 22 NYCRR 100.0(A); 100.0(S); 100.2; 100.2(A); 100.2(C); 100.4(A)(1)-(3); 100.4(C)(3)(a)(I); 100.4(C)(3)(b)(i)-(iv); 100.5(B); Opinions 15-219; 12-58; 12-53; 10-42; 03-21; 02-106; 00-33; 98-160; 96-92; 96-20; 95–02; 90-63; Raffone v Town of Islip, 85 AD2d 597 (2d Dept 1981); Matter of Shields v Dinga, 222 AD2d 816 (3d Dept 1995); 1993 Ops St Comp No. 93-26; 1985 Ops Atty Gen (Inf) No. 85-67.
Opinion:
A part-time judge is on the board of a not-for-profit ambulance corporation. It is currently “exploring the creation of an ambulance taxing district” and has prepared a draft slide show to support the proposal to be shown to town boards and the public.1 The judge asks if he/she may be listed as a board member (without judicial designation) in the presentation, attend and participate in giving the presentation, and be publicly recognized as a board member (along with the other board members) during the program. We also address the judge’s implicit underlying question, i.e. whether the judge may continue to serve on the board both during this process and (if successful) after the district is established.
A judge must avoid the appearance of impropriety (see 22 NYCRR 100.2) and always act to promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]) and shall not lend the prestige of judicial office to advance private interests (see 22 NYCRR 100.2[C]). A judge may engage in extra-judicial activities compatible with judicial office; they must not cast reasonable doubt on the judge’s capacity to act impartially as a judge, detract from the dignity of judicial office, or interfere with proper performance of judicial duties (see 22 NYCRR 100.4[A][1]-[3]). A part-time judge may not be an officer of an entity that will likely “be engaged in proceedings that ordinarily would come before the judge” (22 NYCRR 100.4[C][3][a][i]). A judge may not personally participate in soliciting funds or other fund-raising activities, but may help plan fund-raising (see 22 NYCRR 100.4[C][3][b][i]). A judge may attend fund-raising events, but may not be “a speaker” at such events, subject to exceptions inapplicable here (22 NYCRR 100.4[C][3][b][ii]). A judge may not “use or permit the use of the prestige of judicial office” for fund-raising, but may be listed on a organization’s “regular letterhead” as an officer or director, even if the letterhead is also used for fund-raising, “provided the letterhead lists only the judge’s name and office ... and, if comparable designations are listed for other persons, the judge’s judicial designation” (22 NYCRR 100.4[C][3][b][iv]).
1. The Planned Presentation
First, we note the judge may continue serving on the board of the not-for-profit ambulance corporation while it attempts to create an ambulance district. The judge advises that board members are appointed, not elected, and this will remain so if an ambulance district is formed.2 Absent a conflict, a judge generally may serve as officer of a not-for-profit civic or charitable organization that engages in fund-raising activities, provided he/she complies with relevant limitations (see e.g. Opinions 12-58 [judge may serve as president of a non-profit fire company, but may not personally solicit funds]; 95–02 [judge may be president of a public library’s board of trustees, but may not engage in fund-raising activities, such as encouraging legislators to appropriate funds for the library]). Thus, the judge may be a board member while the corporation seeks to ensure new or added funding.
The judge asks if he/she may attend the event, and assist in presenting. Clearly, the presentation seeks to persuade attendees the corporation’s financial future should be assured via creation of an ambulance district; in effect, the presentation has a significant fund-raising purpose. Certainly, the judge “may attend” this organization’s fund-raising events, but may not be “a speaker or the guest of honor” (22 NYCRR 100.4[C][3][b][ii]) or otherwise personally solicit funds (see 22 NYCRR 100.4[C][3][b][i]; Opinions 12-58 [judge may not personally present fire company’s budget to town/village board, publicly answer questions about the budget, lobby legislators for funding, nor chair or sit on the dias at a public meeting about the budget]; 98-160 [judge may not lobby legislators for library funding]; 00-33 [judge may not sit on dias or chair a public meeting in support of a bond proposition for the public library]).3 Thus, we conclude the judge may attend the presentation, but may not be one of the presenters.
The judge also asks if he/she may be on the list of board members during the program. A judge may be included on a not-for-profit civic or charitable organization’s “regular letterhead” as an officer or director even if the letterhead is used for fund-raising solicitations (22 NYCRR 100.4[C][3][b][iv]; Opinions 02-106; 96-20). Here, the judge’s name would appear on one slide of the ambulance corporation’s presentation along with all other board members. We conclude this is equivalent to including the judge’s name on the organization’s regular letterhead (cf. Opinion 15-219 [judge may be included in list of directors “as long as the content of the list is the same” as the organization’s regular letterhead, “even if the format is not identical”]). The proposed slide does not include titles for anyone, including the judge, but instead highlights other community connections. This is permissible. For future reference, we note that a judge should not be identified as a judge where, as here, equivalent titles are not used for other board members (see 22 NYCRR 100.4[C][3][b][iv]).
Finally, if the presenters wish to recognize all board members in attendance, the judge may also be identified as a board member, without identifying him/her as a judge, to avoid any possible appearance that he/she is lending judicial prestige to the ambulance corporation’s interests (see 22 NYCRR 100.2[C]).
2. After Creation of Ambulance District
An ambulance district “is an improvement district, which is only a ‘special administrative area’ and not a municipal corporation” (Raffone v Town of Islip, 85 AD2d 597, 598 [2d Dept 1981] [citations omitted]). Such “improvement districts cannot contract indebtedness or levy taxes as can distinct corporations” (Matter of Shields v Dinga, 222 AD2d 816, 818 [3d Dept 1995] [citations omitted]). Although the ambulance district itself cannot levy taxes, its expenses “shall be assessed, levied and collected from the several lots and parcels of land within the district for each purpose in the same manner and at the same time as other town charges, except as otherwise provided by law” (Town Law § 202[3]; see also Opns St Comp, 1993 No. 93-26 [concluding that the town board may also “impose fees upon users of the ambulance district services to offset district costs and raise the remainder of district costs by ad valorem assessment”]). Moreover, improvement districts “are controlled by town boards” (Matter of Shields, 222 AD2d at 818; see generally Town Law § 198[10-f]; cf. 1985 Ops Atty Gen [Inf] No. 85-67 [“In most towns, the town board is solely responsible for improvement districts within the town.”]).
We have not previously considered whether a part-time judge may continue to serve on the board of a not-for-profit entity following creation of an improvement district. However, a judge ordinarily may not serve on the board of a public school, as board members “are charged with the overall management and supervision of the school district,” have “significant taxing authority,” may “engage in large capital construction projects” or deal with “[d]ifficult collective bargaining agreements,” and frequently face complicated and controversial social, political and practical issues (Opinion 90-63). Moreover, a town justice may not serve as town clerk in the same municipality because, among other reasons, the judge must file “a certificate of completion of a course of training prescribed by the administrative board of the judicial conference” with the town clerk (Opinion 96-92). Further, in light of the town board’s role in setting the court’s budget, town justices may not permit their full-time court clerk to serve on the town board (see Opinions 10-42; 03-21) or even as deputy town supervisor (see Opinion 12-53 [“if the court clerk were to have power over payment of court expenses and salary payments to the judges who are supervising him/her” as deputy town supervisor, “this could readily compromise the appearance, if not the reality, of judicial independence in significant respects”]).
Here, we believe the judge’s continued service on the ambulance corporation’s board after an ambulance district is formed would conflict with judicial office because, although the district is not itself a taxing authority, its expenses will be “assessed, levied and collected” by the town board as taxes and/or user fees (Town Law § 202[3]; Opns St Comp, 1993 No. 93-26). The ambulance corporation’s budget is likely to become locally controversial if it becomes taxpayer funded, given the rising costs of wages, benefits, insurance, and depreciation that have caused the ambulance corporation to seek new funding. Moreover, given the town board’s statutory control of ambulance districts (e.g. Matter of Shields, 222 AD2d at 818; Town Law § 198[10-f]), there easily could be a public perception the town board could improperly influence the judge, beyond the salary-setting functions granted by law, by its control of the ambulance district (cf. 22 NYCRR 100.0[S] [“An ‘independent’ judiciary is one free of outside influences or control.”]). Thus, the judge must resign from the ambulance corporation’s board if the ambulance district is created.
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1 We understand the inquiring judge’s phrase “ambulance taxing district” is interchangeable with the term “ambulance district” (Town Law § 198[10-f]).
2 A judge must resign from judicial office on becoming a candidate for elective non-judicial office in a primary or general election (see 22 NYCRR 100.5[B]; 100.0[A] [defining “candidate”]).
3 The rule permitting a judge to “make recommendations to public and private fund-granting organizations on projects and programs concerning the law, the legal system or the administration of justice” (22 NYCRR 100.4[C][3][b][iii]) does not apply here.