Opinion 23-140
December 14, 2023
Digest: (1) A judge must not
personally participate in soliciting funds for a not-for-profit civic or
charitable organization and therefore must not: (a) send out solicitation
letters for the organization; (b) post announcements about the organization’s
fund-raising activities or initiatives on social media; (c) post a link to a
page that solicits donations;
(d) sell raffle tickets; (e) stand at the door of a fund-raising event and
collect tickets; (f) solicit, collect, or accept money for a “bounce house”
rental, but may participate in setting up and taking down the bounce house; (g)
solicit, collect, or accept money for a fund-raising dinner, but may cook and
serve food, set up and clean at the dinner; (h) solicit bottles and cans to be
converted to cash at a redemption center, or collect cash for them at the
center, but may pick up bottles and cans that were previously solicited and
collected by others and help sort them and bring them to the redemption center.
(2) A part-time judge who serves on a county’s rural health council may not
post announcements or notices on social media about the council’s fund-raising
efforts or clothing drive, but may post information about other health-related
initiatives and programs to encourage healthy living.
(3) A judge may not promote local businesses and/or businesses operated by the
judge’s friends, family, and classmates on social media.
Rules: 22 NYCRR 100.2; 100.2(A); 100.2(C); 100.4(A)(1)-(3); 100.4(C)(3)(b)(i), (iv); Opinions 23-114; 21-73; 21-31; 19-87; 18–44(B); 17-55; 16-17; 16-01; 15-103; 14-132; 13-161; 12-14; 10-157; 10-22; 09-174; 09-28; 95-115; 94-69; 89-128.
Opinion:
A new part-time judge asks several questions about participation in fund-raising and other promotional activities. We will describe and address the facts for each of the organizations and initiatives below.
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’s extra-judicial activities must be compatible with judicial office and must not cast reasonable doubt on the judge’s capacity to act impartially as a judge; detract from the dignity of judicial office; or interfere with the proper performance of judicial duties (see 22 NYCRR 100.4[A][1]-[3]). A judge must not “lend the prestige of judicial office to advance the private interests of the judge or others” (22 NYCRR 100.2[C]), nor “permit the use of the prestige of judicial office for fund-raising or membership solicitation” (22 NYCRR 100.4[C][3][b][iv]). A judge must not “personally participate in the solicitation of funds or other fund-raising activities,” although a judge “may assist” a not-for-profit educational, religious, charitable, cultural, fraternal or civic organization in “planning fund-raising” (22 NYCRR 100.4[C][3][b][i]).
1. Not-for-Profit Service Organization
The judge serves as president of a local chapter of a large not-for-profit service organization, which regularly engages in certain fund-raising initiatives. These include renting an inflatable “bounce house” to the public;[1] holding fund-raising dinners; conducting bottle and can drives in order to collect the refundable deposit at a redemption center; conducting fund-raising raffles; and selling circus tickets in order to earn a percentage of the sales. To the extent permitted, the judge would like to continue participating in these activities.
a) Posting Announcements of Fund-Raising Events on Social Media
The judge asks if he/she may post announcements about the organization’s various fund-raising initiatives on Facebook or other social media to generate awareness.
This is impermissible. The judge may not post announcements of the organization’s events on social media, where such activities are for the purpose of soliciting funds (see e.g. Opinions 23-114 [a judge “must not post, forward or distribute fund-raising solicitations or invitations to fund-raisers, even if the judge would be sharing a link rather than personally collecting the funds”]; 21-31 [biographical video impermissible where it appears the video would be used to “promote the organization and its gala fund-raising event”]; 16-17 [judge “may not promote fund-raising activities”]; 14-132 [judge may not participate in “ice bucket challenge” fund-raiser, “where each participant is required to publicize his/her own participation and publicly solicit other participants”]).
b) Bounce House Rental
The judge asks if, after the “bounce house” is rented to someone, he/she may personally set up and take down the equipment or accept money for the rental and occasional additional donations.
In Opinion 18-44(B), we advised that a judge may not sell items at a not-for-profit organization’s concession stand but may prepare food and participate in “other behind-the-scenes activities relating to operating” the stand. Quoting Opinion 10-22, we explained that we focus on “the nature of the judge’s participation during a fund-raising event” (id.):
Therefore, if a judge is not involved in selling tickets to an event or in any other way involved in soliciting or collecting money either before or during an event, but is simply engaged in “behind the scenes” activities, such as general setup, food preparation, food service, and cleanup, then he/she may participate in the event....
Here, likewise, we conclude the inquiring judge may personally set up and take down the “bounce house,” but may not solicit, collect or accept payment for the rental or any additional donations.
c) Fund-Raising Dinner
The judge asks if, at the organization’s fund-raising dinners, he/she may cook, serve food, set up, and clean, as long as he/she does not “take orders or money.”
As noted above, a judge “may assist with general setup, food preparation, and cleanup” during a not-for-profit organization’s fund-raising dinner, “as long as the judge does not personally participate in the solicitation or collection of funds or other activities that occur during the event” (Opinion 10-22).
Thus, the judge may participate in the organization’s fund-raising dinner to cook, serve food, set up and clean, but may not solicit, collect or accept money either before or during the event (see Opinions 18-44[B]; 10-22).
d) Bottles and Cans Redemption
The judge asks if he/she may pick up returnable bottles and cans that have already been solicited and collected by other community members, help sort them, and bring them to a redemption center.
In Opinion 10-157, we advised that a judge may assist an organization “by packing food donations, and loading them into a truck for storage prior to distribution to needy families.” However, when it comes to contacting actual or prospective donors, a judge “may not personally solicit items for clothing or food drives, or otherwise solicit non-cash or in-kind contributions” (Opinion 16-17; see also Opinion 17-55). Thus, we advised that a judge may not directly or indirectly solicit property owners, car rental agencies, or food merchants on behalf of the Red Cross (see Opinion 17-55).
Here, although the judge is prohibited from any involvement in the solicitation of bottles and cans for the organization’s fund-raising effort, he/she may nonetheless pick up already collected bottles and cans, help sort them, and bring them to a redemption center. However, the judge should not participate in the collection of cash for the bottles and cans at the redemption center, as this would cause him/her to be involved in “collecting money” for a fund-raiser (Opinion 10-22).
e) Fund-Raising Circus
With respect to the circus, where the organization raises money by selling tickets and keeping a percentage, the judge asks if it is ethically permissible to stand at the door and simply collect tickets as people enter the venue. The judge would not sell any tickets, but would instead be involved only after the purchase is complete.
In Opinion 09-28, we advised that a judge must not deliver tee shirts to sponsors of an organization’s fund-raising golf tournament, as “this would create an appearance that the judge has impermissibly participated in personally raising funds.”
Here, too, even if the judge does not personally sell any tickets, the judge’s proposed involvement can be seen as an attempt to ensure that only those who contributed may enter and watch the circus. In this context, it creates an appearance of impermissible participation in the fund-raising.[2] Accordingly, the judge may not stand at the door and collect tickets.
f) Raffle Tickets
The judge asks if he/she may “assist with soliciting donations or selling [raffle] tickets” at the organization’s events.
For the reasons noted above, the judge may not solicit donations or sell raffle tickets (see e.g. Opinion 12-14 [judge must not personally solicit funds or permit his/her name to appear as the author on any fund-raising letter or as spokesperson in other solicitations]; 22 NYCRR 100.4[C][3][b][i]).
2) Not-for-Profit Children’s Camp
The judge serves on the board of a local not-for-profit children’s camp and asks if it is ethically permissible to send out solicitation letters seeking donations for the camp, post a link to donate on his/her personal Facebook page, and/or post announcements of the camp’s fund-raising efforts on social media.
Here, too, we conclude the judge may not engage in any of the activities he/she asks about on behalf of the camp (see e.g. Opinions 16-17 [judge may not promote fund-raising activities]; 16-01 [judge may not sign a letter that encourages and solicits donations]).
3) County Rural Health Council
The judge also serves on the county’s rural health council, and asks if it is ethically permissible to post announcements and notices on Facebook or other social media about: (a) the fund-raising of the mobility management division “to get awareness out and encourage people to donate”; (b) the health council’s clothing drive; and (c) initiatives and programs to encourage healthy living, like diabetes classes, pain management, doula programs, and mobile breast cancer screening.
Again, the judge may not post announcements or notices about fund-raising or the council’s clothing drive. Indeed, a judge “may not personally solicit items for clothing or food drives, or otherwise solicit non-cash or in-kind contributions” (see Opinion 16-17; see also Opinions 10-157; 89-128).
However, the judge may post educational information about health-related initiatives, where they involve no fund-raising. In general, a judge may ethically volunteer in charitable activities such as visiting senior citizen homes, preparing and serving food to the needy, assisting in health screenings, as well as in other charitable efforts (see Opinion 94-69; 22 NYCRR 100.4[A][1]-[3]). The judge may also post on social media about such matters, including initiatives to encourage healthy living (cf. Opinion 95-115 [judge may participate in a book project with the aim of educating the public about breast cancer]).
4) Promotion of Others’ Businesses
The judge asks if he/she may promote local businesses and/or businesses operated by the judge’s friends, family, and classmates on his/her Facebook page.
We have advised that “‘a judge may not actively or tacitly promote the products or services of any organization,’ even to other judges,” as doing so would impermissibly “lend the prestige of judicial office to advance private interests” (Opinion 21-73, quoting Opinion 09-174; see also Opinions 19-87; 15-103; 22 NYCRR 100.2[C]).
Accordingly, the judge may not promote these businesses on the judge’s Facebook page.
5) Sharing Links for Other Charitable Fund-Raising Efforts
Finally, the judge asks if it is permissible to share links for a not-for-profit organization’s fund-raising efforts, where the judge is not a member, officer or director of the organization.
As discussed, the judge may not engage in any direct or indirect solicitation of funds, and may not share links for not-for-profit fund-raisers. This principle applies whether or not the judge has any personal connection with the organization, as a member or otherwise.
[1] A “bounce house” is “a springy inflatable structure often resembling a four-sided building and used especially by children for jumping for sport” (Merriam-Webster Online Dictionary, available at https://www.merriam-webster.com/dictionary/bounce%20house [accessed January 23, 2024]).
[2] In Opinion 13-161, we said a judge may, while serving as a church deacon, stand passively in designated locations with baskets or plates for the collection of tithes and offerings during a religious service. We note that such contributions are not an admission fee. In any event, we find that Opinion 13-161 does not govern the present scenario, where a civic or charitable organization expects to receive a percentage of the ticket sales at a fund-raising circus.