September 10, 2020
Digest: A full-time judge may serve on the advisory board to a local public charter school, where the advisory board is separate and apart from the school’s board of directors and is not responsible for the school’s operations or budget.
Rules: 22 NYCRR 100.2; 100.2(A); 100.3(A); 100.4; 100.4(A)(1)-(3); 100.4(C)(2)(a); 100.4(C)(3); 100.4(C)(3)(a)(i)-(ii); Opinions 11-44; 02-63; 90-32.
A full-time judge would like to serve on the advisory board of a local public charter school designed to provide students with a college preparatory education and career readiness in a particular employment sector. The school is chartered by the local government, is organized as a not-for-profit organization, and will receive state funding.1 The advisory board is separate and apart from the school’s board of directors; it does not manage or oversee the school’s operations or budget, nor is it involved in fund-raising.
A judge must avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must always act to promote public confidence in the integrity and impartiality of the judiciary (see 22 NYCRR 100.2[A]). Furthermore, a judge’s judicial duties take precedence over all of the judge’s other activities (see 22 NYCRR 100.3[A]). Therefore, when engaging in extra-judicial activities, a judge must minimize the risk of conflict with judicial obligations (see 22 NYCRR 100.4) and must avoid any extra-judicial activities that (1) cast reasonable doubt on the judge’s capacity to act impartially as a judge; (2) detract from the dignity of judicial office; or (3) interfere with the proper performance of judicial duties (see 22 NYCRR 100.4[A]-). A full-time judge ordinarily may serve as a non-legal advisor of a not-for-profit educational organization (see 22 NYCRR 100.4[C]), unless the organization will likely (i) be engaged in proceedings that ordinarily would come before the judge or (ii) be engaged regularly in adversary proceedings in any court (see 22 NYCRR 100.4[C][a][i]-[ii]).
We have said that serving on a public school board is incompatible with judicial office, as school boards are often involved in quasi-political and highly controversial issues (see Opinion 11-44 [citing prior opinions]). We likewise concluded a judge may not serve on a public charter school board, “as [such] organizations [may], from time to time, also generate quasi-political and highly controversial issues that could interfere with a judge’s judicial duties and compromise his/her appearance of impartiality” (id.).
Here, however, the judge would serve as a member of an advisory board that has no responsibility for the operations or budget of the charter school and is unlikely to be involved in any quasi-political or controversial issues that could interfere with the judge’s judicial duties or create an appearance impropriety. Indeed, we have said a full-time judge may serve on an advisory panel for a proposed school of law and finance that is being established by a local public high school (see Opinion 02-63).2 We see no reason for a different result here.
Therefore, we conclude that this judge may likewise serve on the local public charter school’s advisory board, subject to generally applicable limitations on judicial speech and conduct.
1 Where, as here, the school is organized as a 501(c)(3) not-for-profit organization, we see no reason to consider service on its advisory board a “governmental position” (22 NYCRR 100.4[C][a]). However, we have also recognized the rule’s exception permits a full-time judge to represent his/her locality “in connection with … educational … activities,” when no other prohibition applies (Opinion 90-32).
2 Although we did not mention or distinguish our school board opinions in Opinion 02-63, it is clear the judge’s responsibilities as an advisory panel member did not include any operational or fiscal oversight. To the contrary, they involved “addressing the PTA about parents’ legal rights and obligations; addressing student assemblies; hosting student visits to the judge’s courthouse; offering internship opportunities; and speaking with students interested in pursuing legal careers” (Opinion 02-63).