Opinion 24-48
March 14, 2024
Digest: A part-time judge may serve (1) as an officer and director of a local cooperative extension association, provided the association does not operate any programs to which the court may make referrals; (2) on a not-for-profit endowment advisory committee which awards grants to a variety of not-for-profit community groups; and (3) as treasurer of a not-for-profit lake/watershed conservation organization, but must resign as an officer if the organization becomes involved in substantial local public controversy. The judge’s participation is subject to generally applicable limitations on judicial speech and conduct, including the prohibitions on fund-raising and membership solicitation. The judge may suggest names of individuals to be solicited by others, but must prohibit use of his/her name or title in any such solicitation.
Rules: 22 NYCRR 100.2; 100.2(A); 100.3(A); 100.4(A)(1)-(3); 100.4(C)(3)(a)(i); 100.4(C)(3)(b)(i), (iv); Opinions 23-221; 23-219; 23-91; 20-174; 19-30; 16-51; 15-190; 15-171; 12-87; 05-66; 01-63; 99-74; 95-133; 94-65.
Opinion:
A part-time judge asks if he/she may participate in the following extra-judicial activities: (1) serve as president of the board of directors of a local Cornell Cooperative Extension association; (2) serve on a not-for-profit endowment advisory committee; and (3) serve as a non-voting member and treasurer of a not-for-profit organization dedicated to preserving and protecting a local lake and the surrounding watershed. On the facts provided, there is no indication that any of these entities is likely to engage in litigation.
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 judicial duties take precedence over all the judge’s other activities (see 22 NYCRR 100.3[A]). A judge’s extra-judicial activities must be compatible with judicial office and must not cast reasonable doubt on the judge’s impartiality, detract from judicial dignity, or interfere with the performance of judicial duties (see 22 NYCRR 100.4[A][1]-[3]). In general, a part-time judge may serve as an officer or director 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” (22 NYCRR 100.4[C][3][a][i]). While a judge “may assist such an organization in planning fund-raising,” a judge must not “personally participate in the solicitation of funds or other fund-raising activities” (22 NYCRR 100.4[C][3][b][i]), 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] [noting the “regular letterhead” exception]).
(1) Cooperative Extension Association
According to its website, the Cornell Cooperative Extension program is a “dynamic education system” “dedicated to improving lives across New York State” by connecting “world-class research with regional and county-based educators and partners across the state.” The program has local cooperative extension associations in every county, each responsive to the local community’s needs to improve residents’ health and quality of life. As president of the board of a local cooperative extension association, the judge would be “overall responsible” for it and would “act as managing Supervisor to the Executive Director.” Although the association may seek increased funding from the county legislature, the judge would not be involved in those efforts or any other fund-raising activities. The judge further advises that the local organization does not offer driver safety programs or other classes or programs to which the judge’s court could make referrals.
We have advised that a judge may serve on the board of directors of a local not-for-profit community development corporation organized to promote economic and social development in an area that “suffers from blight and community deterioration” (Opinion 16-51) or as president of a coalition of community organizations formed to preserve a historic site, provided “the judge will not personally engage in the actual solicitation of funds or permit his/her name and office to be used therefor” (Opinion 94-65).
While some cooperative extension associations may offer programs to which a local court may make referrals, the inquiring judge indicates this association does not (cf. Opinion 15-190 [judge may not serve on board of entity “that offers traffic safety education programs to which the judge may make referrals”]).[1] Moreover, it appears unlikely the judge’s proposed participation would create any appearance of impropriety or otherwise be incompatible with judicial office.
Accordingly, we conclude the inquiring part-time judge may serve as president of the local cooperative extension association.
(2) Endowment Advisory Committee
The endowment advisory committee provides grants to local community organizations that serve youth and education, the arts, marginalized communities and basic needs and economic mobility. The judge would have absolutely no involvement in any fund-raising activities. Instead, the judge’s primary contribution would be “in the area of organizational governance and nomination of new committee members.” The judge would suggest potential members, but the actual solicitation would be handled by others.
We have advised that a judge may serve as a trustee of a private foundation which makes grants to other not-for-profit organizations, subject to the usual restrictions on fund-raising (see Opinion 20-174). A judge also may serve as a non-legal advisor on issues of organizational governance (see Opinions 15-171 [judge may consult on parliamentary procedure]; 95-133 [full-time judge may render non-legal advice on finance and governance]). Further, although a judge “may not ask persons to join the board” of a not-for-profit organization, we have nonetheless advised that a judge may “suggest names of potential board members for others in the organization to solicit,” provided the judge ensures “that there is no use of the judge’s name in connection with the solicitation” (Opinion 05-66).
Thus, we conclude that the inquiring part-time judge may serve on the endowment advisory committee, provided the judge does not personally participate in any fund-raising or solicitation of members. As noted, the judge may suggest names of individuals for others to solicit, provided the judge takes reasonable steps to ensure his/her name and title will not be used in any solicitation.
(3) Lake and Watershed Preservation
Finally, the judge asks about serving as a non-voting member and treasurer of a watershed inter-municipal organization which seeks to preserve and protect a local lake and its surrounding watershed. The organization primarily works with local and county government and soil/water organizations to reduce sediment and silt in the watershed. It is funded by voluntary contributions by municipalities within the watershed as well as grants to address water quality issues, but the judge will not be involved in soliciting contributions or grants.
We have advised that a judge may serve on the board of a not-for-profit organization formed to preserve and protect a local lake (see Opinion 23-221) or on the board of a not-for-profit park development corporation chartered to create a waterfront park, where the inquiry revealed no “controversial issues or litigation surrounding the park project” (Opinion 01-63). We have further advised that a judge may serve as a not-for-profit organization’s treasurer, “provided the judge refrains from solicitation of funds or other fund-raising activities” (Opinion 23-219 [financial secretary of not-for-profit cemetery]; 23-91 [treasurer for local American Legion post]).
The inquiring judge explains that the work of the not-for-profit organization at issue here has not been, and is not expected to be, controversial. Nor is there any indication that the organization is likely to be engaged in proceedings that would come before the judge’s court. On these facts, we conclude it is ethically permissible for this part-time judge to be a member and serve as treasurer of the organization, provided the judge does not participate in any fund-raising.
Should the organization become involved in substantial local public controversy, however, the judge may not continue as an officer (see Opinions 19-30 [must resign when land trust becomes involved in controversial contested agency proceeding]; 12-87 [may not chair an entity “dedicated to safe drinking water,” where this involves contacting government officials and urging potentially controversial policy choices]; 99-74 [may not serve on town’s water advisory committee, where its recommendations were “likely to become controversial”]).
[1] Although we did not originally identify the entity involved in Opinion 15-190, it was a cooperative extension association.