March 19, 2020
Digest: A full-time judge (1) may not serve on the board of a network of not-for-profit agencies, where some of those agencies engage in advocacy, accept court referrals, or are eligible for appointments in the judge’s court; (2) may serve as a board member on a local council of the Boy Scouts of America, but must resign if the council becomes involved in litigation; and (3) may mentor high school students through a program organized by a not-for-profit chamber of commerce.
Rules: 22 NYCRR 100.2; 100.2(A); 100.4(C)(3)(a)(I)-(ii); Opinions 20-03; 19-36; 16-124; 15-190; 07-02.
A full-time multi-bench judge asks if he/she may engage in various extra-judicial activities. We describe and discuss each one in turn below.
A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must always act in a manner that promotes public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). A full-time judge may not serve as an officer, director, trustee or non-legal advisor of a charitable or civic organization “if it is likely” the organization (I) “will be engaged in proceedings that ordinarily would come before the judge” or (ii) “will be engaged regularly in adversary proceedings in any court” (22 NYCRR 100.4[C][a][I]-[ii]).
1. Serving on the Board of Not-for-Profit Network
The judge first asks if he/she may serve on the board of a local chapter of Arc, a network of not-for-profit agencies that collectively provide advocacy and other services for individuals with disabilities in New York. The organization is eligible to receive certain guardianship appointments in Surrogate’s Court, where the judge presides, although it has no such appointments at this time. In addition, the state’s Medicaid Inspector General may audit the organization, which can result in money recoveries and/or referral to the NY Justice Center for investigation and possible administrative or criminal prosecution.1 However, to the judge’s knowledge, his/her local chapter is “highly compliant” with applicable laws and regulations.
A judge may not serve on the board of an organization to which he/she has the power to make referrals (see e.g. Opinions 15-190 [a judge may not serve on the board of a not-for-profit agency that offers traffic safety education programs to which the judge may make referrals]; 07-02 [Family Court judge should not serve on the board of directors of a non-profit organization that provides therapeutic visitation services to parents who may be referred to the agency, directly or indirectly, by the Family Court]). One of the dispositional options that may come before this judge, when presiding in Surrogate’s Court, is the appointment of guardians pursuant to SCA Article 17-A. Here, the organization’s eligibility to receive such appointments from the judge’s court is sufficient to preclude the judge from serving on the organization’s board, even if such appointments are rare and the organization is not currently serving as a guardian (see Opinion 15-190 [discussing prior opinions]). Likewise, on a review of the organization’s website, it appears the Surrogate’s Court also indirectly refers individuals to the organization’s services; if so, service on the board is also prohibited for this reason (see Opinion 07-02).
Accordingly, the judge may not serve on the organization’s board.
2. Serving on the Board of a Local Boy Scouts Council
The judge also asks if he/she may continue to serve on the board of a local council of the Boy Scouts of America, now that the national organization has filed for bankruptcy protection due to numerous lawsuits alleging sexual assault or abuse. It appears there are presently no claims pending against this local council or its members. The judge does not know whether the local council may eventually participate in a trust to help compensate victims at a national or local level.
At this time, nothing in the inquiry suggests any known allegations of misconduct concerning this council or its members, or any likelihood that this council will be (a) engaged regularly in adversary proceedings in any court or (b) involved in matters of intense local controversy.
Accordingly, we conclude this judge may continue to serve on his/her local Boy Scouts council. Should the local council become involved in litigation, however, the judge should resign from the board (see Opinions 20-03; 19-36).2
3. Mentoring High School Students
Finally, the judge asks if he/she may mentor high school students through a program organized by a not-for-profit chamber of commerce. This is permissible, subject to generally applicable limitations on judicial speech and conduct (see Opinion 16-124).
1 The NY Justice Center is a quasi-legal forum authorized to investigate reports of abuse and neglect of persons with special needs and pursue administrative sanctions. The Center’s Special Prosecutor/Inspector General shares jurisdiction with local district attorneys to prosecute criminal offense allegations and issues recommendations for corrective actions to NYS Courts.
2 Of course, the judge may also seek further guidance on his/her obligations under the specific facts presented if any alleged misconduct comes to light or any litigation is commenced.