Opinion 14-68

April 24, 2014

Digest:         A town or village justice need not prohibit the court clerk from engaging in charitable fund-raising on his/her own time and away from court premises.

Rules:          22 NYCRR 100.2(A); 100.3(C)(2); 100.4(C)(3)(b)(iv); Opinions 10-116; 04-119; 97-17 (Vol. XV); 94-58 (Vol. XII).

Opinion:

         A town or village justice asks whether he/she may permit the court clerk to “assume an active role in a community charity,” where part of the court clerk’s volunteer work “will include fundraising activities for the charity.” The judge states that the court clerk “will not undertake any of the charitable activities nor fundraising from the court house nor would [the clerk] be calling upon any attorneys who actively practice in the court as fundraising prospects.”

         A judge must act at all times in a manner that promotes public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]) and must not use or permit the use of the prestige of judicial office for fund-raising (see 22 NYCRR 100.4[C][3][b][iv]). While a judge must require staff, court officials and others subject to the judge’s direction and control to observe the standards of fidelity and diligence that apply to the judge (see 22 NYCRR 100.3[C][2]), it is nonetheless clear that the limitations on a judge’s extrajudicial conduct do not automatically apply to court employees, particularly a town or village court clerk who is not the judge’s personal appointee (see Opinion 10-116).

         The Committee has advised that a village judge may not establish a public clothing solicitation drive for the poor and homeless in the name of the court, and may not permit the clerk of the court to do so (see Opinion 94-58 [Vol. XII]). In particular, the Committee noted that “[a]s salutary and as worthy as such activity may be, sponsorship by the judge or by the clerk, in the name of the court, would be lending the prestige of the court to this particular charitable endeavor” (id.; see also 22 NYCRR 100.4[C][3][b][iv]).

         Conversely, the Committee has also advised that “[t]he prohibition against fund-raising by judges or courts does not extend ... to fund-raising by court employees that is sufficiently separate from the court” (Opinion 04-119). For example, a judge’s law clerk may engage in fund-raising activities for a not-for-profit child care center and for the United Fund, provided the activities are not conducted on court property or during working hours (see Opinion 97-17 [Vol. XV]), and court employees may participate on their own time as volunteers in a fund-raiser on behalf of a children’s center, provided that the fund-raiser is not conducted on court property or during working hours (see Opinion 04-119).

         Where, as here, a town or village court clerk proposes to engage in charitable fund-raising on his/her own time and away from court premises, and will not target attorneys who actively practice in the court as fund-raising prospects, the Committee believes the proposed fund-raising is “sufficiently separate from the court” and thus unlikely to create any appearance of impropriety (Opinion 04-119). Accordingly, the judge need not prohibit such conduct (see Opinions 04-119; 97-17 [Vol. XV]).