Opinion 89-53

May 25, 1989

NOTE: This opinion has been modified by Opinion 10-22 to the extent that it suggests that the permissibility of the judge’s involvement depends on whether the food sales in which the judge is involved produce a profit. Please consult Opinion 10-22 before relying on this opinion.

Topic:          Judge to assist at a Little League game refreshment stand, selling such items as hot dogs, soda, coffee, ice-cream and candy.

Digest:         It would not be improper for a judge to render help selling food and soda at a Little League game refreshment stand, unless the items are sold above the normal price as a fundraiser for the Little League or for a Little League team.

Rules:          22NYCRR Sec. 100.5(b)(2).

Opinion:

         A judge whose children participate in a Little League program has been asked to join with the other parents in helping out at the refreshment stand, selling such items as hot dogs, soda, coffee, ice-cream and candy. He advises that all the other parents are doing their share and that it not only is embarrassing not to participate, but in his opinion, diminishes the image of the judiciary for a judge-parent to stand idly by while all other parents are pitching in.

         Section 100.5(b)(2) of the Rules of the Chief Administrator of the Courts, provides, in part, as follows:

No judge shall solicit funds for any educational, religious, charitable, fraternal or civic organization, or use or permit the use of the prestige of the office for that purpose, but may be listed as an officer, director or trustee of such an organization; provided, however, that no such listing shall be used in connection with any solicitation of funds. No judge shall be a speaker or the guest of honor at an organization’s fundraising events, but he or she may attend such events.

         Assuming that the items being sold are priced at approximately the same price as similar items being sold at commercial retail establishments in the community, so that the principal purpose of their sale is not to raise funds, but to provide a convenience for those attending, the judge would not be violating section 100.5(b)(2) of the Rules of the Chief Administrator of the Courts, if he were to help out at the refreshment stand. However, if the items are sold at a substantially higher price than such items normally are sold in other retail commercial establishments in the community, as a fundraising measure for the Little League or one of its teams, the judge’s participation would not be permissible.