January 30, 2020
Digest: On these facts, a full-time judge may not serve on the executive committee of a regional Boy Scouts Council that is likely to be engaged regularly in adversarial proceedings.
Rules: 22 NYCRR 100.2; 100.2(A); 100.3(A); 100.4(C)(3); 100.4(C)(3)(a)(i)-(ii); Opinions 19-36; 19-30; 12-39.
A full-time judge asks if he/she may continue to serve on the executive committee of a regional Boy Scouts Council under the following circumstances. First, another member of the executive committee was recently arrested and charged with “multiple felony and misdemeanor charges related to alleged sexual conduct” with children. Second, the organization is named as a defendant in “several cases” under New York’s Child Victims Act, and the “local chapter’s role is to provide ‘as much information as we have on the individuals from our records,’” although the executive committee and the judge have “no direct involvement or control” concerning the defense or settlement of suits.
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 judge’s judicial duties “take precedence over all the judge’s other activities” (22 NYCRR 100.3[A]). A judge may serve as an officer, director or non-legal advisor of a civic or fraternal organization not conducted for profit (see 22 NYCRR 100.4[C]), provided the organization (i) is unlikely to be engaged in proceedings that ordinarily would come before the judge and (ii) in the case of a full-time judge, is unlikely to be engaged regularly in adversary proceedings “in any court” (22 NYCRR 100.4[C][a][i]-[ii]).
In Opinion 12-39, a judge asked if he/she must resign from a hospital’s board of trustees on learning of an ongoing investigation of the hospital and a proposed resolution of certain impending charges, where the judge had “immediately recused” him/herself from the board’s consideration of the proposed settlement and so notified the hospital’s leadership. We advised the judge need not resign, as “there is no indication that the organization will be engaged regularly in litigation or that the judge will be required to participate in [the] litigation” (id.). Significantly, although “no court case [was] currently pending,” the prosecutor planned “to file ‘an accusatory instrument charging a non-criminal violation’ in the judge’s court, followed by an adjournment in contemplation of dismissal,” so “the matter [was] unlikely to become ‘a long, drawn-out cause celebre’” (id.).
Conversely, in Opinion 19-30, a judge asked if he/she could continue to serve on the board of directors of a local not-for-profit land trust conservancy organization, after the board - without the judge’s participation - voted to participate in administrative proceedings before an agency concerning applications to build power-generation facilities adjacent to conserved land. We noted the matter involved “substantial local public controversy,” and concluded “the judge must resign from the board to avoid publicly associating him/herself with the land trust’s positions in the matter. Merely abstaining from participating in the board’s decisions concerning the contested administrative proceedings is not sufficient” (id. [citations omitted]). As we explained (id. [citations omitted]):
if a not-for-profit entity “engages in some activities clearly permissible for judges as well as some potentially controversial lobbying, advocacy and litigation activities,” we have said a judge “must not become involved in the organization’s litigations, publicly associate him/herself with organizational positions on matters of public controversy, or assume a leadership role in the organization.” In essence, “taking a leadership role in such organizations may publicly associate the judge with organizational positions on matters of public controversy, in a way that simple membership does not.”
Here, the judge has learned “there were several cases filed” against the organization under the Child Victims Act and a fellow member of the executive committee was recently arrested and charged with sexual abuse of children. Although the executive committee and the judge apparently have “no direct involvement or control” concerning the defense or settlement of such suits, we note there are “several” pending cases, and – again unlike Opinion 12-39 - there is nothing to suggest these cases are “unlikely to become ‘a long, drawn-out cause celebre’” (Opinion 12-39).
On these facts, as we conclude the regional Boy Scouts Council will likely be engaged regularly in adversary proceedings, service on its executive committee is incompatible with full-time judicial duties (see Opinion 19-36; 22 NYCRR 100.4[C][a][ii]). We conclude the judge must resign from the executive committee to avoid publicly associating him/herself with the Boy Scouts Council’s position in this matter (see Opinion 19-30).