Opinion 21-47

March 11, 2021

Digest:         A full-time judge may serve as president of a not-for-profit organization that supports a branch of the United States military through education, community outreach, and youth programs and by providing programs and services for certain military personnel and their families.

Rules:          22 NYCRR 100.2; 100.2(A); 100.2(C); 100.4(A)(1)-(3); 100.4(C)(3)(a)(i)-(ii); 100.4(C)(3)(b)(i)-(ii), (iv); Opinions 20-71; 14-29; 10-174; 99-77; 97-19.

Opinion:

         A full-time judge asks if it is permissible to serve as president of a 501(c)(3) not-for-profit “educational and advocacy organization” that supports a branch of the United States military. According to the inquiring judge, the entity’s purpose is to enhance the morale of servicemen and women and their families, to educate the public about the importance of national defense, and to support youth programs. It engages in community outreach, helps coordinate responses to questions about the local military branch, and provides certain programs and support those who serve.¹ The organization does not engage in litigation or lobbying and, since its activities take place outside of New York, is unlikely to come before the judge’s court. The inquiring judge would not participate in any fund-raising.

         A judge must always avoid even the appearance of impropriety and must always act to promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2; 100.2[A]). A judge may generally engage in extrajudicial activities if they do not cast reasonable doubt on the judge’s ability to act impartially, do not detract from the dignity of judicial office, and 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 be a member of an educational, charitable, fraternal, or civic organization not conducted for profit and may serve as an officer, director, or non-legal advisor of such an organization provided the organization is unlikely to be engaged in proceedings that ordinarily would come before the judge and, in the case of a full-time judge, is unlikely to be engaged regularly in adversary proceedings in any court (see 22 NYCRR 100.4[C][3][a][i]-[ii]). Also, a judge may not personally participate in soliciting funds or in other fund-raising activities or permit the use of the prestige of judicial office for fund-raising (see 22 NYCRR 100.4[C][3][b][i], [iv]; see also 22 NYCRR 100.2[C]). For example, a judge may not be “a speaker or the guest of honor” at an organization’s fund-raising event but may attend and accept “an unadvertised award ancillary to such event” (22 NYCRR 100.4[C][3][b][ii]).

         We have said a judge may serve on the board of directors for not-for-profit organizations committed to promoting and raising awareness for certain common interests (see Opinions 20-71 [the Polish-American Congress]; 97-19 [Irish-Americans in Government, Inc.]). Likewise, a judge may serve “as a member or leader” of a non-partisan committee that provides a reception to welcome and recognize United States military personnel returning from service in combat zones (see Opinion 10-174). While judges should not accept leadership positions with organizations that engage in substantial lobbying or litigation, membership and service in civic organizations is generally permissible (see e.g. Opinions 99-77 [judge may serve as co-chair of citizens task force to reduce teen violence and crime in the community, subject to limitations]; 14-29 [judge may not hold a leadership role in a “non-partisan feminist coalition” which advocates for and influences legislative and social policy affecting women and children]).

         Here, we see no inherent impropriety in the organization’s described mission and activities, and it appears unlikely to be involved in any litigation, lobbying, or issues of substantial controversy. We therefore conclude that the judge may serve as president of the organization, subject to generally applicable limitations on judicial speech and conduct.

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¹ For example, the entity “adopts” certain military units and sponsors an awards program and off-duty recreational activities or events for them, offers holiday gifts or financial assistance for service personnel or their families in appropriate circumstances, and helps arrange memorial services for personnel who pass while on active duty.