Joint Opinion 97-104 and 97-105

September 11, 1997

Digest:         (1) A principal law clerk to a full-time judge may seek election to the board of a parochial school and serve as its president (2) A part-time judge may seek election to and serve on the board of a parochial school but may not engage in prohibited fund-raising activities.

Rules:          22 NYCRR 100.3(C)(2); 100.4(C)(3); 100.4(C)(3)(b)(i). Opinions 94-19 (Vol. XII), 90-79 (Vol. VI), 90-50 (Vol. V), 90-63 (Vol. V).

Opinion:

         Two separate inquiries are presented concerning service on the board of a parochial school. In inquiry 97-105, a part-time judge inquires whether the judge may run for the school board of a private parochial school which the judge's children attend. Presumably, the election would be confined to the parishioners. In inquiry 97-104 inquiry is made as to the propriety of a principal law clerk to a full-time judge being a member of a school board and its president. Again, the election to the board is confined to parishioners of the church.

         This Committee has indicated on numerous occasions that a judge may not seek election to and serve on the school board of a public district-wide school board due to the fact that the election and the position would necessarily involve the judge in matters of public controversy of a wide-ranging nature and would be incompatible with the judge's duties. See Opinions 90-50 (Vol. V), 90-63 (Vol. V), and 90-79 (Vol. VI). However, section 100.4(C)(3) of the Rules Governing Judicial Conduct does permit a judge to become involved in "an educational, religious, charitable, cultural, fraternal or civic organization not conducted for profit". Since election to the private parochial school board would not be a public community-wide election but would be confined to parishioners of the church, the concerns expressed in our earlier opinions are not in issue and the inquiring judge may participate in such activity. The judge, however, should be always mindful of the prohibition against personal involvement in the solicitation of funds or other prohibited fund-raising activities. 22 NYCRR 100.4(C)(3)(b)(i).

         With regard to the inquiry involving the permissible activities of a principal law clerk (97-104), the Committee has previously issued an opinion which permits a part-time law clerk to serve as a public school board member and engage in other activities which do not interfere with the duties of the law clerk. Opinion 94-19 (Vol. XII). The Committee sees no substantive distinction between that opinion and this inquiry. The full-time nature of the law clerk's duties, of course, prohibits school board activity being conducted during the law clerk's normal working hours. The judge's required administrative responsibility under section 100.3(C)(2) of the Rules with respect to requiring staff to "observe the standards of fidelity and diligence that apply to the judge" does not appear to be in issue, based on the facts described in the inquiry.