Opinion 21-124

September 9, 2021

Digest:         A full-time judge may serve as a “fire officer” or “trustee” for a not-for-profit volunteer fire department, provided the position does not confer peace officer or police officer status, does not involve investigative responsibilities or working with law enforcement, and does not involve the judge with fund-raising.

Rules:          22 NYCRR 100.2; 100.2(A); 100.4(A)(1)-(3); 100.4(C)(2)(a); 100.4(C)(3); 100.4(C)(3)(a)(I)-(ii); 100.4(C)(3)(b)(I), (iv); 100.3(E)(1); Opinions 19-38; 11-22; 07-146; 03-79; 02-57; 98-54; 95-102; 89-147.

Opinion:

 A full-time judge asks if they may serve as a “fire officer” or “trustee” of a not-for-profit volunteer fire department. The positions are not subject to public election; they are elected solely by non-probationary members of the organization. The positions do not involve peace officer or police officer status; fund-raising, or solicitation of dues or payments; or investigative/reporting responsibilities with respect to the cause of fires. Nor would these roles require the judge to work with law enforcement. The “fire officer” is essentially the chief or president of the not-for-profit fire department. It is the fire officer who calls in the fire marshal if there may be an investigation to be undertaken; but the fire officer has no investigative responsibilities or involvement. The “trustees” manage and oversee all finances and expenditures of the fire department and set the budget; they are essentially stewards of the organization’s finances. The trustees also allocate costs to participating municipalities based on a set percentage, which is established based on objective factor(s) such as population. However, the budget is not presented to local governments for approval as such; instead, the organization’s treasurer prepares and presents contracts for the municipalities to sign if they would like to continue receiving services from the organization. Finally, the judge notes it is rare for the fire department to be named in litigation in any court.

         A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must always act in a manner that promotes public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). A judge may engage in extra-judicial activities that are compatible with judicial office and do not cast doubt on the judge’s capacity to act impartially as a judge, detract from the dignity of judicial office, or interfere with the proper performance of judicial duties (see 22 NYCRR 100.4[A][1]-[3]). A judge generally may serve as an officer, director, trustee or non-legal advisor of a not-for-profit civic, charitable, or fraternal organization (see 22 NYCRR 100.4[C][3]), provided the entity is unlikely to be engaged in “proceedings that ordinarily would come before the judge,” and in the case of full-time judges, is unlikely to be engaged regularly in adversarial proceedings “in any court” (22 NYCRR 100.4[C][3][a][I]-[ii]). A judge also may not personally solicit funds or “use or permit the use” of judicial prestige for fund-raising or membership solicitation (see 22 NYCRR 100.4[C][3][b][I], [iv]) and must disqualify in any proceeding in which the judge’s impartiality “might reasonably be questioned” (see 22 NYCRR 100.3[E][1]). 

         We note, initially, that the volunteer fire department is a not-for-profit entity, rather than a governmental entity. Thus, the prohibition on full-time judges serving on a “governmental committee or commission or other governmental position that is concerned with issues of fact or policy in matters other than the improvement of the law, the legal system or the administration of justice” is inapplicable (22 NYCRR 100.4[C][2][a]; Opinion 03-79).

The positions that are the subject of the inquiry do not involve matters of substantial local controversy, such as presenting budgets for public hearing, and to the Town Board for approval (see Opinion 11-22). In addition, since it is unlikely that the not-for-profit volunteer fire department will be engaged regularly in adversarial litigation in any court, the prohibition on full-time judges serving as an officer or trustee is inapplicable (see 22 NYCRR 100.4[C][3][a][ii]).

         Where, as here, the positions are not subject to public election, do not confer peace officer or police officer status, and do not involve soliciting funds or investigative responsibilities, we have advised that a part-time judge may serve in a variety of roles in a volunteer fire department (see Opinion 02-57), including as chief (see Opinion 98-54) or as fire prevention officer and/or scene safety person (see Opinion 07-146). We also said a part-time judge may serve as treasurer or director of a local fire department, although the judge must not be involved in fund-raising or solicitation of dues (see Opinions 95-102 [treasurer]; 89-147 [board of directors]). Conversely, a part-time judge may not serve as a volunteer fire investigator in the same county where they preside, as “the public could reasonably perceive a fire investigator’s investigative responsibilities as cooperatively aligned in interest with law enforcement and prosecutors” (Opinion 19-38).

         We see no reason to apply a different standard to a full-time judge, and we therefore conclude a full-time judge may serve as trustee or fire officer of a not-for-profit volunteer fire department, subject to the same limitations.

         The judge must, however, exercise recusal in any case arising from a fire in which the judge was involved or in any case involving the volunteer fire department (see Opinions 07-146; 02-57).