Opinion 19-18

January 31, 2019

Digest:         A judge may serve as “internal coordinator” of a multitask capital improvement committee for his/her house of worship, and may assist in planning fund-raising, if the judge does not personally solicit funds, does not permit use of his/her name or the prestige of judicial office for fund-raising, and does not appear as the author, signatory or spokesperson in fund-raising materials. The judge may solicit other congregation members to serve the committee, may schedule and notify committee members of meeting details, and may ask the committee members to solicit donations. If the judge donates to the project, his/her name and donation amount may be published with other donors, without mention of the judge’s committee role.

Rules:          22 NYCRR 100.2; 100.2(A); 100.4(C)(3)(a)(I)-(ii); 100.4(C)(3)(b)(I), (iv); Opinions 16-01; 12-14; 09-238; 09-170; 09-28; 06-69; 02-106; 01-26; 01-23; 99-08; 97-64.

Opinion:

         The inquiring judge asks if he/she may serve as “internal coordinator” of a capital improvement committee for his/her house of worship. The committee’s purposes include not only fund-raising, but also coordinating with architects regarding the proposed structural improvements and overseeing expenditures over several years. As “internal coordinator,” the judge will not directly solicit funds nor use his/her name in conjunction with fund-raising. The judge will solicit his/her fellow congregants to serve the committee, schedule committee meetings, and assign other committee members to undertake personal solicitations. Contributors’ names and contribution levels will be published; any contributions made by the judge and his/her spouse will be reported along with those of other contributors, with no mention of the judge’s role on the committee.

         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 may serve as an officer of a not-for-profit religious organization, provided it is not likely to “be engaged in proceedings that ordinarily would come before the judge” (22 NYCRR 100.4[C][3][a][I]) and (ii) in the case of a full-time judge, will not likely “be engaged regularly in adversarial proceedings in any court” (22 NYCRR 100.4[C][3][a][ii]). 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]) nor personally participate in soliciting funds or other fund-raising activities, although he/she “may assist” in “planning fund-raising” and managing and investing raised funds (see 22 NYCRR 100.4[C][3][b][I]).

         A judge may serve as officer or director of a nonprofit organization that engages in substantial fund-raising efforts (see e.g. Opinion 97-64 [part-time judge may serve as president of a local United Way organization]). Indeed, such service is permissible even if the entity’s primary purpose is to raise and distribute funds in the form of scholarships (see e.g. Opinion 09-238). For example, in Opinion 09-170, we said a part-time judge may serve on the board of a not-for-profit organization that awards scholarships to aspiring seminarians, where the board’s functions included a fund-raising component, overseeing the funds raised, developing policies and procedures, and reviewing scholarship applications (see id. [noting judge must not personally solicit funds]). A judge also may serve as president of “a not-for-profit organization which promotes athletic involvement by raising funds for athletic programs at local schools,” subject to limitations on personal involvement in fund-raising (see Opinion 12-14).

         By contrast, a judge must not chair an entity with no real function other than fund-raising, where circumstances will inevitably suggest the judge is personally involved in the entity’s fund-raising efforts. The core example is “an ad hoc committee existing solely for the purpose of raising funds at a specific event” (Opinion 01-23; see also e.g. Opinions 09-28 [judge may not serve as co-chair or master of ceremonies of charitable organization’s fund-raising golf tournament, but may assist with planning the event]; 06-69 [judge may not serve as honorary co-chair of law school fund-raising event, but may attend event, recommend individuals to serve as co-chair(s), and speak at event, provided judge does not personally solicit contributions]; 01-26 [judge may not serve on capital development committee of YMCA’s board of directors, because “the function of that committee is to raise funds for a particular purpose”]; 99-08 [judge’s name must not be listed as honorary member of ad hoc bar association committee whose “sole purpose ... is to invite people to participate in a fund-raising event”]).

         In our view, this judge’s proposed involvement in the institution’s capital improvement committee is permissible. As described, it is not an ad hoc entity designed to run a single fund-raising event, but will be an ongoing, multitask committee (cf. Opinion 02-106 [judge’s name may appear on the regular letterhead of a bar association’s charitable division, where the division “is not an ad hoc entity formed solely for the purpose of soliciting funds,” but rather a “continuing” part of the bar association for a decade]). To the extent known as the “capital improvement committee,” that name is consistent with its purpose to oversee and coordinate capital improvements for the house of worship, as opposed to a name that reflects a “sole function” of fund-raising (see Opinion 01-23). We distinguish this inquiry from Opinion 01-26, because the YMCA’s capital development committee apparently had the primary role to “rais[e] funds for a particular purpose,” rather than the substantial ongoing coordination and oversight functions for capital improvements contemplated here.¹ As the committee’s multitask nature reflects added non-fundraising purposes, the judge’s role as “internal coordinator” will not inevitably suggest the judge personally raises funds or engages in other impermissible fund-raising activities.

         Thus, this judge may serve as committee “internal coordinator,” and assist planning fund-raising, if he/she avoids personally soliciting funds, prohibits use of the prestige of judicial office to raise funds, nor permit his/her name to appear as author, signatory or spokesperson in any fund-raising solicitations (see 22 NYCRR 100.4[C][3][b][I], [iv]; Opinions 16-01; 12-14). As internal coordinator, the judge may solicit other members of the institution to serve the committee, may schedule and notify the committee members of meeting details, and assign them to undertake personal solicitations. He/she should not instruct members to use his/her name in fund-raising efforts. If the judge donates to the project, his/her name and contribution may be listed with others, without including his/her committee role.

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¹ A “capital improvement” or “capital expenditure” is an outlay of funds to acquire or improve a fixed asset, here the physical structure of the judge’s house of worship. The phrase “capital development,” by contrast, suggests a focus on developing (i.e. increasing) money or assets available for investment.