September 4, 2014
Digest: A judge may volunteer for a not-for-profit organization devoted to honoring fallen police officers, firefighters, and emergency medical personnel, where the judge’s proposed volunteer work will relate only to firefighters and medical personnel, and not to police officers.
Rules: CPL §§1.20, 2.10; 22 NYCRR 100.2; 100.2(A); 100.4(A)(1)-(3); 100.4(C)(2)(b); 100.4(C)(3)(a)(i)-(ii); 100.4(C)(3)(b)(i)-(ii), (iv); Opinions 14-124; 13-134; 13-123; 12-80; 12-58; 11-22; 07-52; 03-45; 02-57; 01-15 (Vol. XIX); 98-100 (Vol. XVII); 92-78 (Vol. IX).
A part-time judge who frequently presides in criminal cases asks whether he/she may volunteer for a not-for-profit organization devoted to honoring fallen police officers, firefighters, and emergency medical personnel around the nation. The judge formerly served as the organization’s media relations representative, and would now, in effect, work with his/her successor to perform similar functions without the formal title. Thus, the judge would, as needed, help answer questions from the media and coordinate with local agencies, families of the fallen and the media; post information on social media websites; and assist the head of the organization in planning certain fund-raising activities. The judge proposes to engage in such activities only with respect to fallen firefighters and emergency medical personnel, and not with respect to fallen police officers. The judge will not personally solicit funds.
A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must always act to promote the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). A judge may participate 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 is barred from serving “as a peace officer or police officer” (see 22 NYCRR 100.4[C][b]; CPL 1.20, 2.10). A part-time judge may serve as an officer, director, trustee or non-legal advisor of a charitable organization not conducted for profit, subject to certain limitations, unless it is likely that the organization will be engaged in proceedings that ordinarily would come before the judge (see 22 NYCRR 100.4[C][a][i]).1 While a judge may not personally participate in the solicitation of funds, he/she may assist the organization in planning fund-raising (see 22 NYCRR 100.4[C][b][i]) and may engage in certain other related activities (see generally 22 NYCRR 100.4[C][b][i]-[ii], [iv]).
Applying these principles, the Committee has advised that a judge “must strive to avoid not only the reality, but also the appearance, that he/she is aligned in interest with law enforcement” in the judge’s extra-judicial activities (Opinion 13-123). Thus, for example, the Committee has advised that a judge may not serve as honorary director of a foundation which has the primary purpose of supporting law enforcement departments financially and with equipment (see Opinion 98-100 [Vol. XVII] [noting the organization’s “explicit and exclusive law enforcement orientation”]); may not accept an invitation to become a member of the board of directors of the local Police Athletic League (see Opinion 14-124 [noting the judge may nonetheless attend the entity’s fund-raising events and make charitable contributions]); may not participate in a “ride along” program with the local police department (see Opinion 03-45); may not serve on the crime prevention subcommittee of a city program designed to revitalize crime ridden neighborhoods, where the program as a whole could be perceived as a law enforcement program and could also result in cases which would frequently come before the judge's court (see Opinion 07-52); and may not serve on the board of directors of a not-for-profit “Law Enforcement Exploring” program designed to promote law enforcement careers and is jointly administered with the county police department, where the judge presides over matters involving the police department (see Opinion 12-80). Similarly, the Committee has advised that a judge who regularly presides over criminal matters may not be a member or an officer of an organization such as the local Fraternal Order of Police, whose members largely consist of “active and retired police officers and prosecutors,” many of whom appear before the judge (see Opinion 13-134 [discussing prior opinions]).2
By contrast, the Committee believes firefighting and medicine are not generally seen as law enforcement activities, and, therefore, a judge’s involvement in extra-judicial activities related to firefighting or medicine is far less likely to cast reasonable doubt on the judge’s capacity to act impartially as a judge or otherwise interfere with the proper performance of judicial duties (see 22 NYCRR 100.4[A], ). Indeed, the Committee has previously advised that a part-time judge may serve as a president, vice president, director, secretary, assistant chief or engineer for a local volunteer fire department, provided such positions “do not confer peace officer status and do not involve investigative responsibilities” (Opinion 02-57).3 The Committee has also advised that a judge who has been elected chair of the board of governors of a medical facility may engage in informal discussions with representatives of another medical facility for the purpose of resolving disputes concerning terms of an agreement between the facilities with respect to certain medical functions (see Opinion 01-15 [Vol. XIX]) and has considered ethics inquiries arising out of a judge’s membership in a volunteer ambulance corps (see Opinion 92-78 [Vol. IX]) without questioning the propriety of the judge’s participation.
Here, because law enforcement officers regularly appear in the inquiring judge’s court as witnesses and prosecutors, the judge proposes to restrict his/her involvement with the organization to deal only with fallen firefighters and fallen emergency medical personnel, thus avoiding any possible perception that he/she is aligned with law enforcement interests. The judge has also stated his/her volunteer work will not involve any personal solicitation of funds or other impermissible involvement in fund-raising (see 22 NYCRR 100.4[C][b][i]-[ii], [iv]).
Under these circumstances, the Committee concludes the inquiring judge may volunteer for a not-for-profit organization devoted to honoring fallen police officers, firefighters, and emergency medical personnel, where the judge’s proposed volunteer work will relate only to fallen firefighters and medical personnel, and not to fallen police officers.
1 The additional restriction in Section 100.4(C)(3)(a)(ii) only applies to full-time judges.
2 However, a judge may generally make financial contributions to such organizations and attend their fund-raising events (see Opinion 13-134).
3 Although not relevant to the outcome here, the Committee notes there are limitations on serving in a publicly elected office in a fire district (compare Opinion 12-58 [judge may serve as president of a fire company, where the position is not subject to public election] with Opinion 11-22 [judge may not continue to serve as commissioner of a fire district, where the position is subject to public election]).