Opinion 21-179

January 27, 2022

Digest:         A full-time judge (1) may serve on the board of a not-for-profit organization that seeks to empower people with disabilities to live as independently as possible and works with criminal justice organizations to improve public safety and the delivery of justice but (2) may not serve on the legislative taskforce of a not-for-profit organization that seeks to develop independent living spaces for individuals with disabilities.

Rules:          22 NYCRR 100.2; 100.2(A); 100.2(C); 100.3(A); 100.4(A)(1)-(3); 100.4(C)(1); 100.4(C)(3); 100.4(C)(3)(a)(i)-(ii); 100.4(C)(3)(b); 100.5(A)(1); 100.5(A)(1)(iii); Opinions 20-193; 20-105; 20-71; 20-55; 19-152; 19-105; 17-39; 10-130; 05-08.

Opinion:

         The inquiring full-time judge asks about participation in extra-judicial activities with two separate non-profit, non-partisan organizations that focus on assisting individuals with disabilities.

         A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and act in a manner that promotes public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). As a judge’s judicial duties take precedence over the judge’s other activities (see 22 NYCRR 100.3[A]), judge must conduct all their extra-judicial activities so that they do 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 the proper performance of judicial duties (see 22 NYCRR 100.4[A][1]-[3]). A judge must not lend the prestige of judicial office to advance any private interests (see 22 NYCRR 100.2[C]). A judge must not “directly or indirectly engage in political activity” unless an exception applies (22 NYCRR 100.5[A][1]). For example, a judge may undertake limited political activity on behalf of measures to improve the law, the legal system or the administration of justice (see 22 NYCRR 100.5[A][1][iii]). 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]), subject to a number of limitations. All judges are prohibited from so serving if the organization will likely “be engaged in proceedings that ordinarily would come before the judge” (22 NYCRR 100.4[C][3][a][i]). In addition, a full-time judge must not serve as officer or director if the organization will likely “be engaged regularly in adversary proceedings in any court” (22 NYCRR 100.4[C][3][a][ii] [emphasis added]). A full-time judge may not appear at a public hearing before the executive or legislature, except on matters concerning the law, the legal system or administration of justice (see 22 NYCRR 100.4[C][1]). A judge may not personally solicit funds or participate in fund-raising activities (see 22 NYCRR 100.4[C][3][b][i]).

1. Board of Directors

         The judge asks if they may serve on the board of directors for Community Resources for Justice, a non-partisan and not-for-profit national research and technical assistance organization. One of its “core missions is to empower people with intellectual or developmental disabilities to live as independently as possible” and it “works with local, state, and national criminal justice organizations to improve public safety and the delivery of justice.” The board of directors meets four times per year.

         A judge ordinarily may serve on the board of a not-for-profit civic or charitable organization that does not regularly participate in litigation, accept court referrals, or engage in controversial activities incompatible with judicial office (see e.g. Opinions 20-71; 20-55; 19-105; 17-39). As we stated in Opinion 17-39:

A full-time judge may serve on the board of a non-profit, non-partisan organization that advises governmental policymakers nationwide on criminal justice measures affecting public safety, where the organization does not engage in litigation, is unlikely to appear in the judge’s court, and the judge will not have the opportunity to make referrals to the entity. However, the judge may not personally engage in, or lend the prestige of judicial office to fund-raising or membership solicitation; must not provide legal advice; and must not directly or indirectly engage in any political activity except as permitted by prior opinions on behalf of measures to improve the law, legal system or the administration of justice.

         Here, too, we conclude the proposed service is permissible on the facts presented. Of course, if the judge becomes aware of facts implicating one of the above-mentioned restrictions, then the judge must reconsider the propriety of their participation (see Opinions 20-55; 19-105).

2. Legislative Task Force

         The judge asks if they may serve on the legislative task force of Home of My Own, a not-for-profit organization whose mission is “to develop independent living spaces for individuals with developmental and intellectual disabilities.” The task force seeks legislative changes in order to develop such living spaces.

         While a full-time judge may engage in limited political activity on behalf of “measures to improve the law, the legal system or the administration of justice” (22 NYCRR 100.5[A][1][iii] [applicable to all judges]) and may also appear at a public hearing before the executive or legislative body or official on such matters (see 22 NYCRR 100.4[C][1] [applicable to full-time judges]),¹ these exceptions do not apply to the legislative agenda described here. We have said a full-time judge may not meet with legislators to promote a not-for-profit organization’s legislative agenda regarding boxing safety and administration (see Opinion 10-130) and a part-time judge may not speak at a town board meeting concerning a controversial extension of the hunting season (see Opinion 20-193). Likewise, we said a full-time judge could not participate on a bar association’s subcommittee tasked with addressing issues concerning upcoming elections, even if there was no public acknowledgment of the judge’s role, because such activities could be perceived as partisan political activity (see Opinion 20-105).

         Here, we likewise conclude that the inquiring judge may not serve on the organization’s legislative task force seeking legislative changes in areas unrelated to improvement of the law, the legal system, and the administration of justice.

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¹ We note that a judge serving on the organization’s legislative task force would be seen as acting on behalf of the organization, rather than narrowly on behalf of their own direct personal interests (cf. Opinions 19-152; 05-08).