Opinion 20-116

September 10, 2020

Digest:      A full-time judge may serve on the board of “location and building” for a not-for-profit religious organization, where the position involves no fund-raising responsibilities.

Rules:       22 NYCRR 100.2; 100.2(A); 100.4(C)(3)(a)(i)-(ii); 100.4(C)(3)(b)(i), (iv); Opinions 19-86; 19-18; 94-03.

Opinion:

            A full-time judge asks if it is permissible to serve on a board of “location and building” for a not-for-profit religious organization. The board investigates and approves/disapproves building proposals made by individual churches in their denomination, based on factors such as feasibility, financial soundness, and whether other appropriate approvals have been secured. Additionally, the board considers issues such as energy efficiency, parking, disability access, proportionality and location within the community. The board does not engage in fund-raising.

            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, director, or non-legal advisor of a not-for-profit religious organization, provided the entity is not likely to “be engaged in proceedings that ordinarily would come before the judge” (22 NYCRR 100.4[C][3][a][I]) and, 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 nor personally participate in soliciting funds or other fund-raising activities (see 22 NYCRR 100.4[C][3][b][I], [iv]).

            As described, we conclude the judge’s involvement on a board of “location and building” is permissible. We have said a judge may serve as “internal coordinator” of a multi-task capital improvement committee for their house of worship, where the committee will coordinate with architects regarding proposed structural improvements and oversee expenditures over several years (see Opinion 19-18 [noting significant limitations on the judge’s involvement in any fund-raising functions]) or as the chair of a strategic planning committee for a private not-for-profit school their children attend, where the committee “will assess the school’s current academic and financial strategies but will not engage in any fund raising” (see Opinion 19-86). A judge also may participate in activities concerning utilization and apportionment of a not-for-profit religious organization’s space (see Opinion 94-03). Here, the board oversees and coordinates certain capital improvements and helps manage operations; it does not raise funds. The described activities are unlikely to reflect adversely on the judge’s impartiality or otherwise conflict or interfere with judicial duties. We note, however, the judge should not use their judicial title when acting on behalf of the board (see id.).