Opinion 23-118

October 26, 2023

Digest: (1) A full-time judge may serve as the administrator of a not-for-profit religious organization’s food pantry, and may prepare the pantry’s funding applications, but may not personally sign them. The judge must instead designate someone else from within the organization to sign the applications.
(2) Because the NAACP engages in some activities clearly permissible for judges as well as some potentially controversial lobbying, advocacy and litigation activities, a judge may be a member of the NAACP but may not serve as president of a local chapter.

Rules: 22 NYCRR 100.2; 100.2(A); 100.3(A); 100.4(A)(1)-(3); 100.4(C)(3); 100.4(C)(3)(a)(i)-(ii); 100.4(C)(3)(b)(i), (iv); Opinions 23-102; 21-80; 19-30; 09-32.

Opinion:

A full-time judge asks if it is ethically permissible to serve as administrator for the food pantry at his/her church and as president of a local chapter of the NAACP.

A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must always act in a manner that promotes public confidence in the judiciary’s integrity and independence (see 22 NYCRR 100.2[A]). A judge’s judicial duties must “take precedence” over all the judge’s other activities (see 22 NYCRR 100.3[A]). However, a judge may engage in extra-judicial activities that do not cast reasonable doubt on the judge’s capacity to act impartially as a judge, do not detract from the dignity of judicial office, 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]). In general, a judge may be an officer, director, trustee or non-legal advisor of a not-for-profit religious organization or an organization devoted to the improvement of the law, the legal system or the administration of justice, subject to certain limitations (see 22 NYCRR 100.4[C][3]). For example, a full-time judge may not serve if the organization will likely “be engaged in proceedings that ordinarily would come before the judge” (see 22 NYCRR 100.4[C][3][a][i]) or “be engaged regularly in adversary proceedings in any court” (see 22 NYCRR 100.4[C][3][a][ii]). In addition, while a judge may assist such an organization in planning fundraising and may participate in the management and investment of the organization’s funds, the judge may not personally participate in soliciting funds or other fund-raising activities (see 22 NYCRR 100.4 [C][3][b][i]) and may not permit the use of judicial prestige for fund-raising or membership solicitation (see 22 NYCRR 100.4[C][3][b][iv]).

Question 1: Church’s Food Pantry Administrator

As described by the judge, one key responsibility of the food pantry administrator is to prepare and submit applications for funding from various governmental agencies. The judge states that some agencies extend lines of credit rather than money for the pantry’s use in purchasing foodstuff for distribution to people in need, while federal aid is in the form of a check payable to the pantry which is deposited directly into its bank account and used in furtherance of the pantry’s ministry mission. Before assuming judicial office, the judge had prepared applications for funding for signature by the previous administrator. The judge indicates that the administrator has the discretion to appoint another person from the church leadership group to sign the applications for funding.

While a judge may not personally solicit funds or participate in other fund-raising activities, a judge may assist with planning fundraising provided he/she does not permit the use of the prestige of judicial office for fund-raising and does not permit his/her name to appear as the author or spokesperson on any fund-raising solicitations (see Opinion 17-134; 22 NYCRR 100.4[C][3][b][i], [iv]).

As we have advised, a judge may volunteer to order food and process paperwork at a food pantry administered by a local church (see Opinion 09-32). Here, we perceive no ethical prohibition to the judge serving as the food pantry administrator and, in that capacity, may prepare and submit applications for funding from various governmental agencies. However, the judge may not personally sign the grant applications but must instead designate a non-judge member or official of the church to sign all documents associated with the funding process.[1]

Question 2: President of Local Chapter of NAACP

We now turn to the inquiring judge’s second question, which is whether he/she may serve as president of a local chapter of the NAACP.

In Opinion 23-102, we examined whether a judge may participate in a voter registration event sponsored by a local chapter of the NAACP. We acknowledged the prominent status of the NAACP as a non-partisan, not-for-profit civil rights organization that pursues its mission “to ensure equitable treatment and opportunities” through various means, including litigation (id.).

We reiterated our established framework which allows a judge to evaluate their proposed involvement in the NAACP and similar organizations (see Opinion 23-102, quoting Opinion 19-30):

if a not-for-profit entity “engages in some activities clearly permissible for judges as well as some potentially controversial lobbying, advocacy and litigation activities,” we have said a judge “must not become involved in the organization’s litigations, publicly associate him/herself with organizational positions on matters of public controversy, or assume a leadership role in the organization.” In essence, “taking a leadership role in such organizations may publicly associate the judge with organizational positions on matters of public controversy, in a way that simple membership does not.” Nonetheless, a judge may be a regular member of such organizations, if they are not “political organizations” under the Rules.

As we determined that the NAACP fell within this category of non-profits, we concluded a judge “may not participate in a voter registration drive organized by that entity” (Opinion 23-102).

Here, employing the same rationale, we similarly conclude that the inquiring judge may not serve as a president of a local chapter of the NAACP (see Opinions 23-102; 19-30). We note that service as an officer or director of the NAACP is also independently prohibited for full-time judges under Section 100.4(C)(3)(a)(ii), as the NAACP is likely to be “engaged regularly in adversary litigation,” even if such matters would not ordinarily come before the judge (22 NYCRR 100.4[C][3][a][ii]).

[1] We assume the non-judge signatory will be designated as the point of contact on the application and that the materials submitted will not refer to the judge’s judicial status or position (cf. Opinion 21-80).