April 23, 2015
Digest: A judge may not chair a committee which informs members of a religious congregation of their membership fees, and may not permit his/her name to be listed as committee chair in certain associated written materials that describe such fees.
Rules: 22 NYCRR 100.2; 100.2(A); 100.4(C)(3); 100.4(C)(3)(b)(I)-(ii), (iv); Opinions 13-161; 12-14; 10-194; 10-148; 10-68; 01-28; 01-26; 96-20; 95-102; 89-83/89-84.
The inquiring part-time judge asks if he/she may serve as chair of a committee that informs a not-for-profit, religious organization’s members of required fees to cover the organization’s expenses. The judge also notes the chair’s name is included on a handbook and flyer providing information about the fees, requests additional donations or gratuities, and covers certain non-financial topics about the committee’s non-fund-raising functions.
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 be a member or serve as an officer, director, trustee or non-legal advisor of a not-for-profit religious organization, subject to certain limitations (see 22 NYCRR 100.4[C]). A judge may, as a member or otherwise, assist the organization “in planning fund-raising and . . . the management and investment of the organization’s funds” (22 NYCRR 100.4[C][b][I]), and may attend the organization’s fund-raising events (see 22 NYCRR 100.4[C][b][ii]). A judge who serves as an officer, director or trustee may also permit his/her name and position in the organization to appear on the organization’s regular letterhead, even if the letterhead is used for fund-raising or membership solicitation (see 22 NYCRR 100.4[C][b][iv]). However, a judge may not otherwise “personally participate in the solicitation of funds or other fund-raising activities” (22 NYCRR 100.4[C][b][I]), and must 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]).
The Committee also advised a judge not to preach a sermon on tithing at his/her house of worship (see Opinion 10-148), and that a judge “should not chair an entity which appears to have no real function other than fund-raising, where the circumstances will inevitably suggest that the judge is involved in the entity’s fund-raising efforts” (Opinion 12-14; see also Opinion 01-26 [judge should not serve on the capital development committee of YMCA’s board of directors, because “the function of that committee is to raise funds for a particular purpose”]).1 Similarly, although a judge may serve as treasurer of a not-for-profit organization, the Committee has advised that the judge’s name “should not be used in the solicitation of contributions” (Opinion 01-28), even on the return address of the enclosing envelope (see Opinion 95-102); see also Opinion 10-68 [a judge who is the treasurer of a county bar association “may issue checks to pay bills and may accept dues from members of the association, including attorneys that appear before the judge, but the judge’s name must not be used in connection with soliciting dues”]).2
As it appears here that a key function of this committee is to inform members of fees that must be paid to the religious organization, serving as committee chair would, at the very least, create the impression that the judge was personally soliciting funds and is therefore impermissible (see generally Opinions 10-148; 10-68; 01-26; 22 NYCRR 100.4[C][b][I]).
Accordingly, the inquiring judge should not chair the committee.
1 Notably, the judge’s proposed participation here is far more “direct, prominent and substantial” (Opinion 10-148) than the “simple ministerial act of physically passing the collection plate” as a repository for funds that were solicited by another member of the congregation (Joint Opinion 89-83/89-84) or “silently holding a collection plate” with other officers of the organization at designated locations (Opinion 13-161).
2 The Committee declines to extend the reasoning of Opinion 10-194, which permitted a judge who is treasurer of a magistrates association to notify its members that they must pay their dues or the admission price for an association function, to a judge who is an officer or committee chair of a not-for-profit religious organization.