September 4, 2014
NOTE: This opinion has been modified in part by Opinions 15-171 and 16-153, which advise that “section 100.4(C)(3)(b)(i) does not apply to a judge’s interactions with his/her family members” (Opinion 15-171) or “to a judge’s interactions with judicial colleagues over whom he/she has no appellate or supervisory authority” (Opinion 16-153), “provided the judge makes no reference to his/her judicial office and does not otherwise lend the prestige of judicial office to his/her solicitations” (Opinions 16-153; 15-171). This exception applies only to personally soliciting funds from a judge’s family members and judicial colleagues; it does not extend to the judge’s friends. .
Digest: A judge must not participate in a not-for-profit charitable organization’s fund-raising challenge, where each participant is required to publicize his/her own participation and publicly solicit other participants. However, a judge may make contributions to the organization, provided that he/she does so without personally soliciting funds or otherwise promoting the fund-raiser.
Rules: 22 NYCRR 100.2; 100.2(A); 100.4(C)(3)(b)(i)-(ii), (iv); Opinions 14-45; 14-29; 14-08; 13-87; 13-18; 12-40; 11-66; 10-157; 10-152; 06-114; 04-140.
The inquiring judge states that he/she has been “nominated” to participate in an “ice bucket challenge” which is intended to raise money for a particular not-for-profit charitable organization and asks whether he/she may participate. According to one news report, the rules for the challenge are as follows:
Within 24 hours of being challenged, people are supposed to record themselves dumping ice water over their heads or having someone else dump the bucket of ice water over their heads.
The video should include the person saying that they accept the challenge followed by the pouring of ice into a bucket of water. The participant gets the bucket dumped over his or her head, then challenges other people. The typical number of people to name is three.
In one version of the challenge people who receive the challenge either do it and also donate $10 to ALS research, or forgo the challenge and donate $100 to the cause.
(Zachary Stieber, “Ice Bucket Challenge: Explanation of Rules as Latest Donation Total Tops $100 Million,” Epoch Times [9/1/2014]). The Committee notes that this particular fund-raiser has “gone viral” because each participant is required to publicize his/her own participation and publicly solicit other participants, and a wide variety of individuals, including many high-profile athletes and entertainers, have chosen to participate.
A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must always act to promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). A judge may not use or permit the use of the prestige of judicial office for fund-raising (see 22 NYCRR 100.4[C][b][iv]). Accordingly, although a judge may attend a charitable organization’s fund-raising events, he/she must not be a speaker or guest of honor at such events unless an exception applies (see 22 NYCRR 100.4[C][b][ii]).1 Although a judge may assist a not-for-profit charitable organization in planning fund-raising and may participate in the management and investment of the organization’s funds, a judge must not personally participate in the solicitation of funds or engage in other fund-raising activities (see 22 NYCRR 100.4[C][b][i]).
Thus, for example, the Committee has advised that a judge may not participate in a local public radio stations’ on-air fund drives, even if he/she “would not personally solicit funds or suggest donation amounts” (Opinion 14-08); “may not distribute flyers at the local grocery store asking customers to donate food items or collect donations of either food or cash” (Opinion 10-157); and may neither personally invite individuals to attend a fund-raiser nor permit his/her name to be used in the invitations to a fund-raiser (see e.g. Opinions 13-87; 11-66).
By contrast, the Committee has advised that a judge may make charitable donations from his/her personal funds (see e.g. Opinions 13-18; 04-140). Indeed, a judge who wishes to participate as an athlete in sporting events that are organized as charitable fund-raisers must make the required contributions from his/her own personal funds rather than soliciting sponsors or funds from any person, including friends or relatives (see e.g. Opinions 12-40; 10-152; 06-114).
Here, too, the inquiring judge may make contributions to the charitable organization involved, and may generally permit the organization to acknowledge the judge’s contribution in the same manner as it acknowledges contributions by other members of the public (see e.g. Opinions 14-45; 14-29; 13-18).
However, the judge must not accept or undertake the ice bucket challenge, as this would, by its terms, require the judge to “nominate” other individuals to participate in the same fund-raising challenge (see 22 NYCRR 100.4[C][b][i]). Indeed, even if the judge refrained from actually “nominating” specific individuals, posting the required video would be readily perceived as the judge’s promotion of the fund-raiser, which is similarly prohibited (id.; cf. Opinion 12-40 [judge who participates in an athletic event that is organized as a charitable fund-raiser must not allow the fact of the judge’s participation or his/her judicial title to be utilized to raise funds for the organization or the event]).2
1 The exceptions, which do not apply under the circumstances presented, permit a judge to accept “an unadvertised award ancillary to” certain fund-raising events, or to be “a speaker or guest of honor at a court employee organization, bar association or law school function” (22 NYCRR 100.4[C][b][ii]).
2 News reports indicate the U.S. State Department and the Judicial Qualifications Commissions of Georgia have taken similar positions (see e.g. Matthew Lee, “U.S. Diplomats Barred from Ice Bucket Challenge,” Associated Press [Aug. 21, 2014] [“high-ranking State Department officials” must abstain from participating in the challenge, to avoid perceptions about “preference and favoritism” and the use of public office for private gain, “no matter how worthy the cause”]; Kathleen Baydala Joyner, “JQC Puts Freeze on Judge’s Ice Bucket Challenge,” Daily Report [Sep. 5, 2014]).