January 29, 2015
Digest: A court attorney-referee who is being ordained as a local religious leader may permit the religious institution to hold a non-fund-raising event in his/her honor, attend the event, and accept congratulatory proclamations and resolutions from executive and legislative officials.
Rules: 22 NYCRR 100.2; 100.2(A); 100.4(A)(1)-(3); 100.4(C)(3); 100.4(C)(3)(b)(ii), (iv); 100.6(A); Opinions 14-46; 13-06; 12-142; 11-41; 11-39; 10-50; 07-18; 05-104; 03-129; 97-79 (Vol. XVI); 96-122 (Vol. XV); 95-161 (Vol. XIV); 94-16 (Vol. XII); 88-13 (Vol. I).
A court attorney-referee who is being newly ordained as a local religious leader asks whether he/she may permit the religious institution to honor and install him/her at an upcoming annual dinner-dance. The referee notes the admission charge of $75 per person, as supplemented by revenues from a “modest program book,” is intended merely to cover the costs of the event.1 As in past years, certain elected legislative and executive branch officials are invited to the dinner, and such officials typically offer proclamations or resolutions congratulating the honoree(s) during the event. The referee asks whether he/she may agree to be honored in this way.
Quasi-judicial officials, such as court attorney-referees, must comply with the Rules Governing Judicial Conduct in the performance of their official duties and otherwise must “so far as practical and appropriate” use such rules as guides to their conduct (22 NYCRR 100.6[A]; see e.g. Opinions 14-46; 13-06; 11-41; 10-50; 07-18).
A judge must 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 engage in extra-judicial activities that do not cast reasonable doubt on the judge’s capacity to act impartially as a judge; detract from the dignity of judicial office; or interfere with the proper performance of judicial duties and are not incompatible with judicial office (see 22 NYCRR 100.4[A]-). A judge “shall not use or permit the use of the prestige of judicial office for fund-raising or membership solicitation” (see 22 NYCRR 100.4[C][b][iv]) and “may not be a speaker or the guest of honor at [a not-for-profit] organization’s fund-raising events, but the judge may attend such events” (22 NYCRR 100.4[C][b][ii]). Subject to these and other limitations, a judge may be a member or serve as an officer of a not-for-profit religious organization (see 22 NYCRR 100.4[C]; Opinion 12-142).
Accordingly, the threshold question presented here is whether the dinner-dance is a fund-raiser; if so, the inquiring referee may not be the announced guest of honor at the event (see 22 NYCRR 100.4[C][b][ii], [iv]; see also e.g. Opinions 12-142; 11-39; 94-16 [Vol. XII]). The fact that the religious institution is charging for admission is not determinative. Although prior opinions do not specify the point at which a difference between price and cost is disqualifying, the Committee has not previously required a dollar-for-dollar match between the cost of the event and the ticket price, and declines to do so now (see e.g. Opinion 97-79 [Vol. XVI] [“the possibility ... that ultimately there may be some small differential between the cost of a ticket and the expenses actually incurred does not, by itself, transform the event into a fund-raiser”]). Instead, the Committee looks to the “stated intent of the organization” as well as the surrounding circumstances in determining “whether the activity is or is not a fund-raiser” (Opinion 95-161 [Vol. XIV]).
Applying these principles, the Committee has advised that a judge may be one of 18 honorees at a national religious organization's dinner, although the ticket price exceeds the cost of the dinner, where no fund-raising will take place at the dinner and “the differential between the price of the dinner and its cost will be minimal” (Opinion 96-122 [Vol. XV] [noting the organization’s stated intention to use any minimal surplus “to pay for the dinners of invited guests, including various public dignitaries who will be attending, and for others unable to afford a ticket”); may serve as master of ceremonies at a breakfast sponsored by a religious council as long as no fund-raising takes place at the breakfast, the price of the breakfast does not have a fund-raising premium, and neither the judge nor the judge’s name is used to solicit funds or advertisements for the associated journal (see Opinion 03-129); may “serve as co-chair and master of ceremonies of a dinner sponsored by a religious [group],” where no fund-raising will take place at the dinner and the fund-raising journal published in conjunction with the dinner will not involve the judge or use of the judge’s name, provided “the price of tickets to the event does not include a fund-raising premium” (Opinion 88-13 [Vol. I]); and may be honored at an educational foundation’s breakfast, even if there may be some small net sum which may benefit the sponsor, where “the stated intent of the event is to honor prominent graduates of the institution and not to raise funds” (Opinion 05-104).
Likewise, under all the circumstances presented here, it appears the ticket price is intended primarily to cover the costs of the proposed dinner-dance and installation ceremony, rather than to raise funds for the religious institution (see Opinion 95-161 [Vol. XIV] [“although some small profits were made in connection with previous breakfasts, the cost of the ticket cannot be said to be so exorbitant as to controvert the stated intent of the function, which is to honor the judge, not to raise funds”]). Nor is there any indication in the inquiry that the inquiring referee’s name or quasi-judicial position will otherwise be used to solicit funds. Accordingly, the Committee concludes the inquiring court attorney referee may be the guest of honor at the religious institution’s dinner-dance (see Opinions 05-104; 03-129; 97-79 [Vol. XVI]; 96-122 [Vol. XV]; Opinion 88-13 [Vol. I]).
Since it is permissible for the inquiring referee to be honored and installed as the religious institution’s leader during the non-fund-raising dinner-dance, the referee may be similarly congratulated or honored at the event through executive and/or legislative branch proclamations or resolutions. Such executive and legislative branch proclamations and resolutions are, in the Committee’s understanding, a traditional gesture of courtesy or collegiality with no substantial legal effect and, thus, are unlikely to create any appearance of impropriety under the circumstances presented (see 22 NYCRR 100.2; 22 NYCRR 100.4[A]-).
1 Indeed, the referee states that, in some years “event costs exceed total revenues from tickets and program sales,” and the religious institution must take a loss and subsidize the event, whereas in other years, “the event makes a marginal profit” which will typically be dedicated to the next year’s dinner-dance.