Opinion 22-24(B)

January 27, 2022

Digest:         A full-time judge may serve as president of a local YMCA and serve on its multi-task capital project committee consistent with generally applicable limitations on judicial speech and conduct, but must not personally participate in fund-raising or grant applications or provide legal advice.

Rules:          22 NYCRR 100.2; 100.2(A); 100.4(C)(3)(a)(i)-(ii); 100.4(C)(3)(b)(i), (iv); 100.4(G); Opinions 20-116; 20-46; 19-18; 01-26; 91-69.

Opinion:

            A full-time judge asks if they may serve as president of a local YMCA and on its capital project committee to plan the construction of a new YMCA facility. The judge states the committee will make decisions regarding the building’s location, appearance, and programs, strategies regarding certain tax incentives and/or tax credits,¹ and grant applications. Whether as president or as a member of the capital project committee, the judge will not be a signatory on any fund-raising letters and will not otherwise participate in any fund-raising activities.

         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 full-time judge may not practice law (see 22 NYCRR 100.4[G]), but may serve as an officer, director, or non-legal advisor of a not-for-profit 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]) and will not likely “be engaged regularly in adversary proceedings in any court” (22 NYCRR 100.4[C][3][a][ii]). A judge must not use or permit the use of the prestige of judicial office for fund-raising or membership solicitation nor personally participate in soliciting funds or other fund-raising activities (see 22 NYCRR 100.4[C][3][b][i], [iv]). However, a judge may assist such an organization “in planning fund-raising” and may also participate in the management and investment of the organization’s funds (see 22 NYCRR 100.4[C][3][b][i]).

         We have advised that a judge may serve on a YMCA’s board of directors (see Opinion 01-26). We see no reason why the judge cannot serve as president as well.

         In light of the proscription on engaging in fund-raising activities, we have advised that a judge should not serve on a board or committee “whose sole purpose is to raise funds” for a particular purpose (Opinion 20-46). Of particular note, we concluded a judge must not serve on a YMCA capital development committee, where the committee’s sole function was to raise funds (see Opinion 01-26).

         However, we have also said a judge may serve as “internal coordinator” of a multi-task capital improvement committee for their house of worship, where the committee will coordinate with architects regarding proposed structural improvements and oversee expenditures over several years (see Opinion 19-18 [noting significant limitations on the judge’s involvement in any fund-raising functions]). Likewise, a judge may serve on the board of “location and building” for a not-for-profit religious organization, where the position involves no fund-raising responsibilities (see Opinion 20-116).

         As the activities of the capital project committee, as described in the inquiry, go well beyond fund-raising, we conclude Opinion 19-18 applies. Accordingly, the judge may serve as the YMCA’s president and/or on the YMCA’s capital project committee, subject to generally applicable limitations on judicial speech and conduct. For example, the judge must not participate in any fund-raising; must not provide legal advice, either generally or regarding the potential tax credits or tax incentives under consideration (see 22 NYCRR 100.4[G]); and must not be involved in the grant application process since this YMCA initiative does not involve the law, the legal system or the administration of justice (see e.g. Opinion 91-69).

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¹ The tax incentive at issue “encourages cleanup and redevelopment of brownfields” (https://www.epa.gov/sites/production/files/2014-08/documents/tax_guide.pdf), while the tax credit is intended to “attract[] private capital into low-income communities” (https://www.cdfifund.gov/programs-training/programs/new-markets-tax-credit).