Opinion 22-25

March 10, 2022

Digest:         A full-time judge may chair the board of directors of a local YMCA. The judge’s name and position may be listed together with other board members in similar fashion on the organization’s website and fund-raising invitations, unless the formatting reasonably creates an impression for fund-raising purposes that the directors, collectively and/or individually, are personally soliciting funds.

Rules:          22 NYCRR 100.2; 100.2(A); 100.4(A)(3); 100.4(C)(3)(a)(i)-(ii); 100.4(C)(3)(b)(i), (iv); Opinions 22-24(B); 20-23; 15-219.

Opinion:

         A full-time judge asks whether it is permissible to serve as the non-compensated Chief Volunteer Officer of the local not-for-profit YMCA. The duties of this office consist of serving as chair of the board of directors and its sub-committees while providing oversight of the board. The judge states that these responsibilities are not likely to interfere with the performance of judicial duties, and the judge does not expect the YMCA to be engaged in litigation in any court. Although the board is broadly responsible to ensure that the YMCA has adequate funds and new members, the judge will refrain from personally engaging in fund-raising and membership solicitation and will not chair any committee devoted to those purposes. The judge further asks if it is permissible for the judge’s name to appear on the YMCA’s website and fund-raising invitations along with the names of other board members.

         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 generally may serve as an officer, director, trustee or non-legal advisor of a not-for-profit charitable or fraternal organization, provided the entity is unlikely either to “be engaged in proceedings that ordinarily would come before the judge” or to “be engaged regularly in adversary proceedings in any court” (22 NYCRR 100.4[C][3][a][i]-[ii]). In addition, a judge “may assist such an organization in planning fund-raising and may participate in the management and investment of the organization’s funds” (22 NYCRR 100.4[C][3][b][i]). However, a judge may not “personally participate in the solicitation of funds or other fund-raising activities” (id.) nor “use or permit the use of the prestige of judicial office for fund-raising or membership solicitation” (22 NYCRR 100.4[C][3][b][iv]).

         We have previously advised that a full-time judge may serve as president of a local YMCA (see Opinion 22-24[B]), and see no reason for a different result merely because a similar role here is called Chief Volunteer Officer. The judge must, of course, refrain from personal participation in the solicitation of funds or other fund-raising activities or membership solicitation (see 22 NYCRR 100.4[C][3][b][i], [iv]).

         With respect to appearance of the judge’s name on the YMCA’s website and fund-raising invitations, the rules expressly provide that a judge who is properly serving as an officer, director or trustee of a not-for-profit organization “may be listed as an officer, director or trustee” of the organization (22 NYCRR 100.4[C][3][b][iv]). Moreover, “[u]se of an organization’s regular letterhead for fund-raising or membership solicitation does not violate” the prohibition on using the prestige of judicial office for fund-raising or membership solicitation purposes, “provided the letterhead lists only the judge’s name and office or other position in the organization, and, if comparable designations are listed for other persons, the judge’s judicial designation” (id.).

         We subsequently extended this “regular letterhead” exception to cover not just traditional letterhead, but also fund-raising invitations that similarly list all the organization’s directors, “unless the specific formatting reasonably creates an impression that the directors collectively and/or the judge individually are personally soliciting funds or inviting people to attend the fund-raiser” (Opinion 15-219; see also Opinion 20-23).

         The judge states the regular letterhead of the YMCA does not list the board of directors, only its website. However, all directors are listed on the YMCA website with name, office/member status, and profession. We find the organization’s website is consistent with Section 100.4(C)(3)(b)(iv) and thus consider the website page listing to be the equivalent of the organization’s “regular letterhead” (Opinion 20-23).

         In light of the foregoing, we conclude that the judge may serve as the Chief Volunteer Officer of the local YMCA with the proscription to refrain from the personal participation in the solicitation of funds or other fund-raising activities or membership solicitation. The judge’s name and office may be listed together with other board members in similar fashion on the organization’s website and fund-raising invitations, unless the formatting reasonably creates an impression that the directors, collectively and/or individually, are personally soliciting funds (see Opinions 20-23; 15-219). We emphasize that the judge has affirmed they will not chair any subcommittee exclusively for fund-raising or member solicitation purposes, and thus we understand the judge’s name shall not appear on any special letterhead used exclusively by such subcommittees. The judge’s service, as described above, may continue so long as it will not interfere with the performance of judicial duties (see 22 NYCRR 100.4[A][3]).