October 26, 2010
This responds to your inquiry (10-119) asking whether you may serve as a board member of a non-profit community action agency, which provides a variety of assistance programs to low income individuals and families. In particular, this agency provides emergency short term assistance for rent and utilities; a food pantry network; holiday gifts and food; housing assistance; and services in domestic violence and sexual assault matters. You indicate that you will not be involved in the agency’s day to day activities, as your responsibilities would include oversight and governance of the organization.
The Rules Governing Judicial Conduct permit a judge to serve as an officer, director, trustee or non-legal advisor of an educational, religious, charitable, fraternal, or civic organization not conducted for profit, subject to certain limitations (see 22 NYCRR §100.4[C]). Indeed, the Committee previously has advised that “the community benefits from having judges take an active part in community affairs whenever possible” (Opinion 90-25). Thus, a judge may participate in civic and charitable activities that do not reflect adversely upon impartiality or interfere with the performance of judicial duties (see 22 NYCRR 100.2; 100.2[A]; 100.4[A]-).
For example, the Rules prohibit a judge from using the prestige of judicial office to solicit volunteers for the subject agency (see 22 NYCRR §100.4[C][b][iv]). However, the Rules would allow a judge to serve as a member of a community action agency provided that he/she does not “personally participate in the solicitation of funds or engage in other fund-raising activities” (22 NYCRR §100.4[C][b][I]). Therefore, you may serve as a board member as long as you do not refer parties who appear in your court to that agency for services. In addition, if the agency appears before you as a witness or an advocate, you must disqualify yourself, subject to remittal.
Enclosed, for your convenience, are Opinions 09-101; 07-19; 98-35; and 90-25, which address this issue.
Very truly yours,
George D. Marlow, Associate Justice
Appellate Division, First Dept (Ret.)