Opinion 24-122

September 12, 2024

Digest:  (1) A full-time judge may serve on the boards of a literacy promotion organization and a high school dropout prevention program, subject to generally applicable limitations.  (2) The judge may not serve on the board of an organization that offers support services to those affected by substance use disorder, mental health issues, and poverty, where the judge’s court has the power to make direct or indirect referrals to the organization.

Rules:   22 NYCRR 100.2; 100.2(A); 100.4(A)(1)-(3); 100.4(C)(3)(a) (i)-(ii); 100.4(C)(3)(b)(i); Opinions 23-101; 21-136; 20-55; 16-124; 12-120; 12-22; 07-02; 99-77; 99-21; 95-126; 95-34.

Opinion:

          A full-time judge with jurisdiction in family court matters asks if he/she may serve as a director of three local not-for-profit organizations.  We will describe and address each organization separately below.

          A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and 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 full-time judge may serve as an officer, director, trustee, or non-legal advisor of a not-for-profit educational, religious, charitable, cultural, fraternal or civic organization, provided the organization is unlikely 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]).  Among other restrictions, a judge may not “personally participate in the solicitation of funds or other fund-raising activities” for the organization, but may assist in “planning fund-raising” (22 NYCRR 100.4[C][3][b][i]).

Literacy Promotion Organization

          The judge asks if it is permissible to serve on the board of directors for a literacy organization that purchases new books for families and the community, holds an annual community event, and organizes family book clubs, cursive classes, and summer family literacy programs. 

          We have said that a judge may participate in community events promoting literacy, where the events are not “controversial or political, do not impermissibly promote any commercial interests, and do not involve any fund-raising or in-kind solicitations” (Opinion 23-101; see also Opinion 12-120 [event to promote child literacy]).  There is no indication that the organization in question is likely to be engaged in proceedings that would come before the judge, or in adversarial proceedings in any court, or in matters of substantial controversy. 

          We therefore conclude the judge may serve on the board of this literacy promotion organization.

Dropout Prevention Program

          The judge has also been invited to serve on the board of a non-profit that works to prevent high school dropouts by “helping homeless high school teens who are on their own.”  The students commit to personalized goals and are given financial assistance and mentoring. 

          We have said a judge may serve as an officer of a not-for-profit organization that educates students about the law (see Opinion 12-22), as co-chair of a citizen’s task force to reduce teen violence (see Opinion 99-77), and on a prevention partnership board “affiliated with a coalition of agencies involved with the prevention of juvenile delinquency” (see Opinion 99-21).  Again, we have further advised that judges may mentor youth through not-for-profit mentorship programs unaffiliated with law enforcement (see e.g. Opinions 20-55; 16-124).  There is no indication the dropout prevention program engages in litigation, and it appears the program and its student participants have “no connection whatsoever with the judicial system or the judge’s court” (Opinion 16-124). 

          We therefore conclude the judge may serve on the board of directors for the dropout prevention program.

Substance Use Disorder and Mental Health Organization

          The third organization provides support for those affected by substance use disorder, mental health issues, and poverty through outreach, community service and education.  It offers services such as: 1) a hotline and resource referrals; 2) street outreach to provide “harm reduction supplies like Narcan, fentanyl/xyzaline test strips, and safe sex kits;” and 3) a podcast support group to “explore ways to heal from the trauma that can contribute to substance use and other mental health issues,” “examine resources that are available” in the local community, and “discuss current events and issues that we are dealing with in our community.” 

          We have advised that a judge may not serve on the board of an organization to which the judge is empowered to make referrals directly or indirectly (see Opinions 21-136 [judge may not serve on advisory board of recovery center affiliated with program to which judge may make referrals]; 20-55 [surrogate’s court judge may not serve on board of network of not-for-profit agencies that may be appointed guardian by court and may also receive indirect referrals from court]; 07-02 [family court judge may not serve on board of organization providing therapeutic visitation services to parents who may be referred indirectly by the court]). 

          We have also said a judge who presides in felony cases may not join an organization that rehabilitates persons with criminal histories (see Opinion 95-34).  As we explained, where an organization “appears to involve contact with persons who are defendants in the criminal justice system, and who may appear before the judge, … participation in the organization may reflect adversely on the judge’s impartiality” (id.).  For similar reasons, we said a city court judge may not serve on the board of a not-for-profit corporation that provides victims of domestic violence with the “emotional and financial support necessary” for “successful prosecution” of family offenses (Opinion 95-126 [noting “it would appear probable that assault-type offenses related to family conflict would reach [the judge’s] courtroom”]).  

          We conclude that service on the board of this organization may likewise cast doubt upon the judge’s capacity to act impartially and is therefore impermissible.