Opinion 20-77

April 30, 2020

Digest:            A full-time judge may serve on a not-for-profit advisory board that will make recommendations about funding local entities in serious economic jeopardy, provided his/her involvement is limited to reviewing and making recommendations on applications from not-for-profit entities that are not likely to appear before him/her.

Rules:             22 NYCRR 100.2; 100.2(A); 100.2(C); 100.4(A)(1)-(3); 100.4(D)(3); Opinions 20-22; 15-223; 12-108; 08-193; 05-03; 04-140.

Opinion:

         A full-time judge has been invited to serve on an advisory board of a local not-for-profit entity. That advisory board will make independent recommendations to a second not-for-profit organization concerning how to allocate certain funds to “small businesses, partnerships and non-profits” in the locality that are not likely to survive a recent statewide economic shutdown¹ absent financial support. The second organization, rather than the first entity or its advisory board, will make the final decision and will ultimately make gifts, not loans, to the recipients. The judge asks if he/she may serve on the advisory board.

         A judge must always avoid any appearance of impropriety (see 22 NYCRR 100.2), must always act in a manner to promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]), and must not lend the prestige of judicial office to advance private interests (see 22 NYCRR 100.2[C]). A judge’s extra-judicial activities must be compatible with judicial office and 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]). In addition, a full-time judge must not be an “active participant of any business entity” (22 NYCRR 100.4[D][3]).

         A full-time judge should not help a not-for-profit organization select which local business entities should receive financial support to help them survive the economic impact of a state-ordered shutdown, as it would create, at the very least, an appearance of impropriety. In this regard, we also note the “small businesses [and] partnerships” seeking financial assistance could include law firms that appear before the judge.²

         With respect to the judge’s participation in reviewing and approving applications made by not-for-profit entities, however, different principles apply. First, we have said that a full-time judge may serve on the board of a charitable entity that receives, reviews and determines requests to fund arts and education projects (see Opinion 12-108) and on a panel that will award annual student-athlete scholarships on behalf of a hospital’s community relations board (see Opinion 08-193). Thus, we conclude it is not inherently unethical for a full-time judge to assist a not-for-profit entity in reviewing applications and making recommendations on disbursement of funds to other not-for-profit entities. Second, since these applications are presumptively for financial support “essential to sustain the operations” of the applicant in a time of severe economic crisis (Opinion 04-140), we believe the judge must not participate in reviewing any applications from not-for-profit entities that are likely to appear before him/her.³ Putting these two threads together, provided the judge abstains from reviewing any applications from entities that are likely to appear before him/her, we see no reason why this judge cannot participate on the advisory board if his/her involvement is limited to reviewing and making recommendations as to which not-for-profit entities should receive funds.

         Accordingly, this full-time judge may serve on a not-for-profit advisory board that will make recommendations about funding local entities that are in serious economic jeopardy, provided his/her involvement is limited to reviewing and making recommendations on applications from not-for-profit entities that are not likely to appear before him/her. The judge may not participate in reviewing applications from for-profit entities or entities that may appear before him/her.

         Should an entity whose application the judge has reviewed nonetheless appear before him/her, the judge should recuse, subject to remittal in appropriate circumstances (see generally Opinion 20-22 [“Some General Principles Underlying Disqualification and Remittal”]).

___________________________________

¹ The shutdown of “all non-essential businesses statewide” commenced on March 22, 2020 by executive order and was still in effect at the time we decided the present inquiry (see https://www.governor.ny.gov/news/governor-cuomo-signs-new-york-state-pause-executive-order).

² Opinion 05-03 is not to the contrary, as that involved a part-time judge’s service on the loan committee for a local economic development agency.

³ Ordinarily, there is no impropriety when a judge makes, or participates in making, a charitable contribution to a not-for-profit entity, even if the entity will appear before him/her (see e.g. Opinions 15-223; 04-140). The present circumstance involves the rare instance when the financial contribution, if made, is likely to be “essential to sustain the operations” of the entity (cf. Opinion 04-140), and rejection of the application could potentially jeopardize the entity’s continued viability.