Opinion 24-82
May 9, 2024
Digest: A town justice may accept a position with the town’s highway department and “ghostwrite” a town’s state and federal grant applications for street, sidewalk, sewer, and infrastructure repairs, provided the judge does not personally solicit funds, permit the use of the prestige of judicial office for fund-raising, or permit the judge’s name to appear as the author or signatory on any grant applications.
Rules: 22 NYCRR 100.2; 100.2(A); 100.4(C)(3); 100.4(C)(3)(a)(i); 100.4(C)(3)(b)(i), (iii)-(iv); Opinions 23-145; 23-118; 23-11; 19-07; 08-57; 00-62.
Opinion:
A part-time town justice asks whether he/she may accept a position with the town highway department drafting applications for state and federal grants. The judge does not intend to sign his/her name to any of the paperwork, but instead to serve as a “ghostwriter.”
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 part-time judge generally may serve as an officer, director, trustee, or non-legal advisor of a not-for-profit educational, religious, charitable, fraternal, or civic organization (see 22 NYCRR 100.4[C][3]), provided the entity is unlikely to be engaged in “proceedings that ordinarily would come before the judge” (22 NYCRR 100.4[C][3][a][i]). A judge, whether as a member or otherwise, “may assist such an organization in planning fund-raising,” although the judge must not “personally participate in the solicitation of funds or other fund-raising activities” (22 NYCRR 100.4[C][3][b][i]) and must not “use or permit the use” of judicial prestige for fund-raising or membership solicitation (22 NYCRR 100.4[C][3][b][iv]).
We have advised that a town justice may be employed as a laborer in the town highway department, subject to disqualification in matters involving the highway department (see Opinions 08-57; 00-62; see also Opinion 19-07 [discussing three categories of outside employment with the same municipality]).
We have also advised that judges may “ghostwrite” a not-for-profit charitable organization’s fund-raising letters and grant applications that will be signed, submitted and circulated by others without crediting the judge, provided the judge’s name and office do not appear on the applications and are not otherwise used for fund-raising or solicitation (see Opinion 23-145; see also Opinions 23-118 [full-time judge may prepare and submit grant applications in role as food pantry administrator, provided judge does not sign them]; 23-11 [part-time judge may write grant applications in role as volunteer treasurer for local fire company, but must not lend their name to any fund-raising activity]).[1]
Accordingly, we conclude the inquiring judge may accept outside employment with the town highway department and, in that capacity, ghostwrite state and federal grant applications for the town highway department so long as the judge does not sign the applications or otherwise personally solicit funds or permit the use of the judge’s name or the prestige of judicial office for fund-raising.
Assuming the position “will not involve the judge in the exercise of high-level executive or management authority on behalf of the town,” we note that the judge must still disqualify “if his/her direct supervisor or municipal department appears as a party in a case before the judge” (Opinion 19-07).
[1] These restrictions do not apply to judges seeking grants for “projects and programs concerning the law, the legal system or the administration of justice,” such as the Justice Court Assistance Program (22 NYCRR 100.4[C][3][b][iii]).