Opinion 95-161

January 25, 1996

Digest:         A judge may accept an award from a civic organization at its annual breakfast, provided the breakfast is not a fundraiser.

Rule:            22 NYCRR 100.4(C)(3)(b)

Opinion:

         A full-time judge inquires as to the propriety of receiving an award at the annual breakfast sponsored by a civic organization of which the judge is a member . The judge advises that the breakfast is not a fundraiser event, that no journal is printed and no funds are solicited. There is, however, a charge for the breakfast to cover the cost of the breakfast and various other fixed expenses of the breakfast. The judge advises that the cost of the breakfast last year was $30; that in each of the past two years, there has been a profit of $500 to $600, and that the money went to the organization's programs. The judge explains that since the fixed costs of the breakfast do not change, a profit results whenever the number of people attending is greater than the number contemplated when the cost of the breakfast is set.

         The stated intent of the organization, when undiminished by the factual pattern surrounding the activity presented, is the governing factor to be considered in determining whether the activity is or is not a fundraiser. Here, although some small profits were made in connection with previous breakfasts, the cost of the ticket cannot be said to be so exorbitant as to controvert the stated intent of the function, which is to honor the judge, not to raise funds.

         Based on the facts presented, there appears to be no violation of section 100.4(C)(3)(b) of the Rules Governing Judicial Conduct and the Committee finds no ethical reason why the judge cannot attend the breakfast and receive an award.