Opinion 23-91
September 7, 2023
Digest: A full-time judge may (1) serve as treasurer of their local American Legion post and (2) participate in a regional American Legion service committee which strives to help women veterans, subject to generally applicable limitations on judicial speech and conduct.
Rules: 22 NYCRR 100.2; 100.2(A); 100.3(A); 100.3(B)(8); 100.4(A)(1)-(3); 100.4(B); 100.4(C)(3); 100.4(C)(3)(a)(i)-(ii); 100.4(C)(3)(b)(i), (iv); 100.4(G); 100.5(A)(1)(h); Opinions 23-75; 23-73; 21-112; 21-47; 20-71; 15-223; 10-143; 10-68; 09-28; 04-140; 01-28; 99-38; 96-29; 95-102.
Opinion:
The inquiring full-time judge is a member of the American Legion, a not-for-profit and non-partisan veteran’s organization. The judge asks if it is ethically permissible to serve as treasurer of their local post and on a regional service committee dealing with issues facing women veterans.
A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must always promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). In addition, a judge’s judicial duties take precedence over the judge’s other activities (see 22 NYCRR 100.3[A]). A judge may generally engage in extrajudicial activities if they do not cast reasonable doubt on the judge’s ability to act impartially, do not detract from the dignity of judicial office, do not interfere with the proper performance of judicial duties, and are not incompatible with judicial office (see 22 NYCRR 100.4[A][1]-[3]). A judge may be a member of an educational, charitable, fraternal, or civic organization not conducted for profit and may serve as an officer, director, or non-legal advisor of such an organization if it is unlikely to be engaged in proceedings that ordinarily would come before the judge and, in the case of a full-time judge, is unlikely to be engaged regularly in adversary proceedings in any court (see 22 NYCRR 100.4[C][3][a][i]-[ii]). A judge may not personally participate in soliciting funds or in other fund-raising activities or permit the use of the prestige of judicial office for fund-raising or membership solicitation (see 22 NYCRR 100.4[C][3][b][i], [iv]). However, the judge’s name and office may be listed on the organization’s regular letterhead as an officer of the organization, even if the letterhead will be used for fund-raising or membership solicitation (see 22 NYCRR 100.4[C][3][b][i], [iv]). The judge may also assist the organization in “planning fund-raising” and may participate in the management and investment of the organization’s funds (22 NYCRR 100.4[C][3][b][i]). In addition, a judge may not make contributions, either directly or indirectly, to any political organization (see 22 NYCRR 100.5[A][1][h]).
1. Serving as Post Treasurer
As treasurer of a local American Legion post, the judge would oversee and manage the post’s bank account, issue checks for community centered activities and donations to charities, and share signing authority and oversight with two other post officers. The judge notes that the post has, in the past, made charitable donations to a scholarship fund “that is headed by a local elected official”[1] and occasionally purchased journal advertisements at a political club’s gala fund-raising events. The judge asks if such expenditures would present any ethical issues for the judge as treasurer.
We have previously treated the American Legion as an ordinary not-for-profit fraternal, civic, or charitable organization (see Opinions 09-28; 21-112). As nothing in the inquiry suggests that the American Legion regularly engages in litigation, lobbying, or matters of substantial local controversy, we see no reason for a different approach here.
A full-time judge may serve as treasurer for a not-for-profit organization, subject to limitations (see Opinions 23-73; 01-28; 95-102). For example, a judge “may not personally participate in the solicitation of funds or other fund-raising activities” and thus, while a judge may serve as treasurer “for the purpose of receiving dues, depositing funds and paying bills, the judge’s name and judicial status should not be used in the solicitation of dues or other contributions” (Opinion 23-73; see also Opinion 10-68 [“Nor may the judge’s name be used in connection with dues notices, even on the return address of the stationery or envelope and even if the judge’s judicial title is omitted.”] [citations omitted]). Further, the judge’s judicial title should not be used in such communications, except as permitted under the “regular letterhead” exception (22 NYCRR 100.4[C][3][b][iv]).[2] Accordingly, we conclude the inquiring judge may serve as treasurer for their local American Legion post, subject to the same limitations.
With respect to making donations to a charity, we have previously advised “it is of no ethical consequence for a judge to make a monetary contribution” to a not-for-profit charitable organization, even if the recipient may appear in the judge’s court (Opinions 04-140; 15-223). The fact that a bona fide charitable organization happens to be headed by an elected public official does not make it ethically impermissible. Thus, we conclude the judge, in their capacity as treasurer of the local American Legion post, may send the post’s charitable contribution to an otherwise permissible scholarship fund. However, the judge should make the payment directly to the charitable entity, if practicable, rather than sending a check to the elected official’s office for collection (cf. Opinion 23-75).[3]
We reach a different conclusion with respect to purchasing journal advertisements for a politically sponsored event. In our view, purchasing an advertisement in a journal for a political organization’s fund-raiser constitutes political activity (see Opinion 99-38). A judge may not make contributions, either directly or indirectly, to any political organization (see 22 NYCRR 100.5[A][1][h]). Indeed, where a part-time attorney judge is a partner in a law firm, we have said the judge “may not allow the judge’s law firm” to make political contributions, even if the judge does not personally sign the check (Opinion 96-29; cf. Opinion 10-143 [judge who is a minority shareholder in a law firm must “take every reasonable step” to dissuade the majority partners from erecting a political sign on the law firm property over the judge’s objection]). Here, too, we conclude the judge must object to purchasing journal advertisements in connection with a political club’s events.
2. Serving as Member of Active Lady Veterans Inspiring Value and Excellence (ALIVE) Committee
The inquiring judge states that the American Legion’s ALIVE Committee aims to “empower female veterans with resources on navigating their own community” and to “positively influence change that makes gender fairness available and visible.” It appears that the ALIVE Committee will plan educational workshops and develop internal policies, but will not investigate incidents of alleged misconduct or engage in public advocacy for legislation.
We have previously advised that a full-time judge may serve as president of a not-for-profit organization that supports a branch of the United States military through education, community outreach, and youth programs and by providing programs and services for certain military personnel and their families (see Opinion 21-47) or on the board of directors of a regional chapter of the Polish American Congress (see Opinion 20-71). Here, too, we see no inherent impropriety in the ALIVE Committee’s described mission and activities, and it appears unlikely to be involved in any litigation, lobbying, or issues of substantial controversy. We therefore conclude that the judge may serve as a member or leader of the committee, subject to generally applicable limitations on judicial speech and conduct.
As the judge has not identified any specific contemplated speaking engagements, we merely note that “[a] judge may speak, write, lecture, teach and participate in extra-judicial activities” subject again to generally applicable limitations (see 22 NYCRR 100.4[B]), such as the public comment rule and the prohibition on full-time judges giving legal advice (see 22 NYCRR 100.3[B][8]; 100.4[G]).
[1] The funds are raised through an annual charitable athletic/sports event, which we assume is organized by the elected official.
[2] In full, the exception states: “Use of an organization's regular letterhead for fund-raising or membership solicitation does not violate this provision, provided the letterhead lists only the judge’s name and office or other position in the organization, and, if comparable designations are listed for other persons, the judge’s judicial designation” (22 NYCRR 100.4[C][3][b][iv]).
[3] We recognize this point could be moot if the charity’s only mailing address is the elected official’s office.