Opinion 21-80

April 29, 2021

Digest:     A part-time judge who is the secretary/treasurer of a not-for-profit volunteer fire company may also serve as the organization’s point of contact to provide factual and financial information for its Federal Emergency Management Agency grant application.

Rules:       22 NYCRR 100.2; 100.2(A); 100.2(C); 100.4(A)(1)-(3); 100.4(C)(1); 100.4(C)(3)(a)(i), (iii)-(iv); Opinions 19-152; 19-126; 18-187; 18-152; 05-08; 95-102.

Opinion:

         The inquiring part-time judge has served as the secretary/treasurer of a volunteer fire company for nearly three decades.¹ The judge asks if it is ethically permissible to be the fire company’s point of contact on its Federal Emergency Management Agency (FEMA) grant application. The judge would not personally request the grant, but would be the person designated on the application to provide further factual information as needed. All certifications, applications and formal documentation would be signed by the president of the volunteer fire company.

         We understand that the federal government currently requires all FEMA applicants to establish an online account in order to submit detailed information about the entity and supporting documentation. The system further requires applicants to designate a point of contact to provide additional or updated information about items submitted, such as accounts receivable, as well as other information about the entity’s history, finances, and business.

         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 engage in extra-judicial activities so long as doing so does not (1) cast reasonable doubt on the judge’s capacity to act impartially as a judge; (2) detract from the dignity of judicial office; or (3) interfere with the proper performance of judicial duties and the activity is not incompatible with judicial office (see 22 NYCRR 100.4[A][1]-[3]). A part-time judge may generally serve as an officer, director or non-legal advisor of a not-for-profit charitable or civic 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]). A part-time judge, unlike a full-time judge, may also appear at a public hearing before an executive or legislative body or official on matters unrelated to the improvement of the law, the legal system or the administration of justice (see 22 NYCRR 100.4[C][1]). However, a judge must not lend the prestige of judicial office to advance any private interests (see 22 NYCRR 100.2[C]), including fund-raising for not-for-profit organizations (see 22 NYCRR 100.4[C][b][iv]).²

         While the present inquiry appears to be a matter of first impression, in Opinion 18-152, we said a town justice could also serve as the appointed treasurer of a taxpayer-supported fire district in the same town, where the treasurer “primarily exercises ministerial functions” and has “no actual or apparent executive discretion or responsibility for setting and/or advocating for the budget,” as this role will not involve the judge in “highly visible political and controversial issues incompatible with judicial office” (Opinion 18-152; see also Opinion 18-187). The situation here is roughly analogous, in that serving as the point of contact would involve ministerial activities associated with completion of the FEMA application, rather than lobbying or advocating for the grant application. We believe the activity does not cast doubt on the judge’s capacity to act impartially.

         Significantly, there is also little risk of any appearance of the misuse of judicial prestige to advance the fire company’s interests. This judge has long served as secretary/treasurer of the volunteer fire company, and would electronically transmit and receive documents and information from the fire company to a federal agency through the agency’s online system. The judge is a logical choice to serve as the point of contact for the FEMA grant application based on the judge’s institutional knowledge and current role in the organization. Moreover, the materials submitted will contain no reference to the judge’s judicial status or position and will be signed and certified by the fire company’s president.

         Although this role would be problematic for a full-time judge (see Opinions 19-152; 19-126; 05-08; 22 NYCRR 100.4[C][1]), we conclude that it is ethically permissible for this part-time judge and longtime secretary/treasurer of a volunteer fire company to serve as its point of contact for a FEMA grant.

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¹ The propriety of a judge’s involvement with a volunteer fire department or fire company “can be a fact-specific determination” (see Opinion 18-152 [discussing prior opinions]), but this judge’s role with the fire company appears to be permissible, as it does not confer or involve peace officer status or investigative responsibilities and is not subject to public election (see e.g. Opinion 95-102 [noting certain limitations on a judge’s involvement as treasurer]).

² We note that the exception permitting a judge to “make recommendations to public and private fund-granting organizations on projects and programs concerning the law, the legal system or the administration of justice” (22 NYCRR 100.4[C][b][iii]) is inapplicable here.