Opinion 23-56

May 4, 2023

Digest:  A full-time judge may serve on a nominating committee which reviews employment applications for a local Boy Scout Council, and makes recommendations to the Council’s board of directors.

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)-(ii), (iv); Opinions 19-151; 16-98; 05-13; 94-69.

Opinion:

          A full-time judge asks if it is ethically permissible serve on a nominating committee for a local Boy Scout Council.  The nominating committee does not do any recruitment or solicitation and is not involved in governance.  It consists of seven community members, who convene a few times per year to review employment applications received for paid positions with the Council and thereafter make recommendations to the board of directors. 

          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 not “cast reasonable doubt on the judge’s capacity to act impartially as a judge” or “interfere with the proper performance of judicial duties” (see 22 NYCRR 100.4[A][1]-[3]).  A judge may serve as an officer, director or non-legal advisor of a civic or fraternal organization not conducted for profit (see 22 NYCRR 100.4[C][3]), provided the organization (i) is unlikely to be engaged in proceedings that ordinarily would come before the judge and, in the case of a full-time judge, (ii) is also unlikely to be engaged regularly in adversary proceedings “in any court” (22 NYCRR 100.4[C][3][a][i]-[ii]).  A judge should not be involved with fund-raising or membership solicitation unless an exception applies (see 22 NYCRR 100.4[C][3][b][i]-[ii], [iv]).

          A judge generally “may participate in community, civic and charitable endeavors as a volunteer providing services, so long as the activity is not of a partisan political nature” (Opinion 94-69).  Here, the judge is not seeking to serve on an executive or governing body of the Boy Scouts, but instead to volunteer on a nominating committee to help a local Boy Scout Council fill its employment openings.  We have advised that a judge may volunteer as the enterprise risk management chair of a local Boy Scout district, where the position involves ordinary health and safety risks in normal scouting activities (see Opinion 19-151), and may also serve as a scoutmaster for a local troop (see Opinions 19-151; 05-13).  We have also advised that a judge may serve on the search committee for a private not-for-profit elementary school, which will assist in hiring a new head of the school (see Opinion 16-98).

          Likewise, we conclude this judge may serve on the nominating committee of a local Boy Scout Council, subject to generally applicable limitations on judicial speech and conduct.