October 19, 2000
Digest: (1) A full-time judge should
not be a member of the board of directors of an organization which is involved
in providing sentencing alternatives in the court on which the judge serves.
(2) A full-time judge should not serve on the board of directors of a county
youth shelter, but may serve on its advisory board.
Rule: 22 NYCRR 100.4(A)(3); 100.4(C)(3)(a)(i);
Opinion 95-150 (Vol. XIII).
A Supreme Court justice and a County Court judge ask similar questions concerning possible affiliation with non-profit organizations that are intimately involved with the criminal justice system and which provide services to the court in connection with the placement of defendants in different kinds of facilities.
The Supreme Court justice, in inquiry 00-104 asks whether it is appropriate to accept membership on the board of directors of a not-for-profit organization which provides services aimed at providing sentencing alternatives in criminal matters. Although the inquiring judge does not regularly conduct a criminal calendar, members of the judge's court do.
One of the purposes of the organization, as stated in its by-laws, is the
a. to reduce the number and concomitant costs of persons incarcerated in the New York State prison system and local county jails by providing viable sentencing alternatives aimed at alleviating drug, alcohol, and other mental health problems; to decrease court case loads and costs by channeling individuals into appropriate treatment programs prior to trial and/or subsequent conviction.
Although the purposes of the organization appear to be worthy and of benefit to the criminal justice system, the court of which the judge is a member may use the services of the organization on a more than isolated occasion. That circumstance would run counter to the prohibition contained in section 100.4(C)(3)(a)(i) of the Rules Governing Judicial Conduct which cautions against serving as a director of an organization that will be engaged in proceedings that ordinarily would come before the judge. Further, the judge informs the Committee that in addition to criminal offense sentencing alternatives, the organization provides an alternative in probation violation sentencing matters. Under these circumstances, the conclusion of the Committee is that the judge should not accept membership on the board of directors of this organization. See Opinion 95-150 (Vol. XIII).
In inquiry 00-101, the inquirer is a County Court judge who has been asked to serve on the board of directors of a not-for-profit youth shelter in the county. The judge notes that on numerous occasions young men and women who have been unable to make bail have been sent by the judge to the shelter for detention. The judge asks whether he/she can serve either on its board of directors or, in the alternative, on its advisory board.
For the reasons expressed above, the Committee believes that the judge should not serve on the organization's board of directors. Membership on the board of directors would place the judge in a dual position as a fiduciary acting on behalf of the organization and as a judge dealing with the organization in the courtroom. In this instance, the judge's role as director is, we believe, incompatible with judicial office. 22 NYCRR 100.4(A)(3). However, service as a member of its advisory board may be a different matter inasmuch as the organization, albeit connected with the courts, is not involved in the adjudicative process in terms of ultimate disposition of a criminal case. Its function appears to be limited to providing temporary shelter in bail matters. As such, service on its advisory board, which carries no institutional or legal obligations, does not give rise to the possible dangers inherent in serving on the board of directors.