Opinion 19-30

March 14, 2019

Digest:         Once a not-for-profit land trust becomes involved in a controversial contested agency proceeding affecting local conserved lands, a judge may not serve as its officer or director, but may still be a regular member provided he/she does not comment on the agency proceedings or otherwise publicly associate him/herself with the land trust’s positions on matters of public controversy.

Rules:          22 NYCRR 100.2; 100.2(A); 100.3(B)(8); 100.4(A)(1)-(3); 100.4(C)(1); 100.4(C)(3); 100.4(C)(3)(a)(i)-(ii); 100.4(G); Opinions 17-70; 17-69; 15-210/09-56; 14-29; 10-130; 09-70; 05-08; 01-63; 99-165; 98-101; 89-58.

Opinion:

         A full-time judge asks if he/she may continue to serve on the board of directors of a local not-for-profit land trust conservancy organization. Certain companies are seeking approval from a state agency to build power-generation facilities adjacent to conserved land, and the trust is concerned about possible impacts on wildlife habitats. Without the judge’s participation, the board voted to participate in administrative proceedings before the agency. The land trust has now “requested intervenor status” and is considering taking a formal position. One applicant is represented by “a law firm that sometimes appears” before the judge.

         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 generally engage in extra-judicial activities if they (1) do not cast reasonable doubt on the judge’s ability to act impartially; (2) do not detract from the dignity of judicial office; and (3) do not interfere with the proper performance of judicial duties and are not incompatible with judicial office (see 22 NYCRR 100.4[A][1]-[3]). A judge may serve as an officer, director or non-legal advisor of a civic or charitable organization not conducted for profit (see 22 NYCRR 100.4[C][3]), provided the organization (i) is unlikely to be engaged in proceedings that ordinarily would come before the judge and (ii) in the case of a full-time judge, is unlikely to be engaged regularly in adversary proceedings “in any court” (22 NYCRR 100.4[C][3][a][i]-[ii]). In addition, a full-time judge may not appear at a public hearing before an executive or legislative body or official on behalf of a not-for-profit organization on matters unrelated to the law, the legal system or the administration of justice (see 22 NYCRR 100.4[C][1]; Opinion 10-130) nor serve as a legal advisor to a not-for-profit organization (see 22 NYCRR 100.4[G]; Opinion 99-165).

         We see no inherent impropriety in joining a local not-for-profit conservation organization (see e.g. Opinion 89-58 [judge may be a member of Ducks Unlimited, Inc., which raises funds for “waterfowl and waterfowl habitat conservation in North America,” although he/she must not participate in soliciting funds]). We have also said a full-time judge may serve on the board of a local not-for-profit park development corporation chartered to create a waterfront park in the judge’s municipality (see Opinion 01-63). We noted the entity had solicited public input and published its master plan, and the inquiry revealed no “controversial issues or litigation surrounding the park project” (id.).

         However, if a not-for-profit entity “engages in some activities clearly permissible for judges as well as some potentially controversial lobbying, advocacy and litigation activities,” we have said a judge “must not become involved in the organization’s litigations, publicly associate him/herself with organizational positions on matters of public controversy, or assume a leadership role in the organization” (Opinion 15-210/09-56). In essence, “taking a leadership role in such organizations may publicly associate the judge with organizational positions on matters of public controversy, in a way that simple membership does not” (Opinion 14-29). Nonetheless, a judge may be a regular member of such organizations, if they are not “political organizations” under the Rules (see Opinion 15-210/09-56; see also e.g. Opinion 17-70 [discussing prior opinions]).

         Here, the land trust seeks to intervene in contested administrative proceedings before a state agency and may take a formal position opposing the proposed local power-generation facilities. It appears to be a matter of substantial local public controversy. Thus, the judge must resign from the board to avoid publicly associating him/herself with the land trust’s positions in the matter (see e.g. Opinions 15-210/09-56; 14-29; 09-70). Merely abstaining from participating in the board’s decisions concerning the contested administrative proceedings is not sufficient.

         Thus, we conclude the judge may continue as a regular member of the land trust, provided he/she does not publicly comment on the agency proceedings or otherwise publicly associate him/herself with the land trust’s positions on matters of public controversy (see e.g. Opinions 15-210/09-56; 14-29; 09-70; 98-101).¹ Thus, for example, the judge must not appear at the agency proceedings on the land trust’s behalf (see Opinion 05-08; 22 NYCRR 100.4[C][1]; 100.4[G]).

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¹ Even as a regular member, if the land trust becomes involved in litigation, the judge must not preside in any case involving the entity (see e.g. Opinion 15-210/09-56). Whether as a member or otherwise, we remind the judge not to comment publicly on “a pending or impending proceeding in any court within the United States or its territories” (Opinion 17-69; 22 NYCRR 100.3[B][8]).