Opinion 90-28

March 1, 1990

NOTE: This opinion has been modified by Opinion 10-22 to the extent that it suggests that the permissibility of the judge’s involvement depends on whether the food sales in which the judge is involved produce a profit. Please consult Opinion 10-22 before relying on this opinion.

Digest:         A judge may cook and serve hamburgers at a not-for-profit church fundraising function where the food is made available only for the convenience of those attending, and the price charged produces no profit. He may not supervise the fundraising affair nor judge the grease pole and lumberjack contest, because the judge's role would be too prominent.

Rules:          22 NYCRR 100.5(b)(2)

Opinion:

         A part-time judge inquires whether, in connection with a church fundraiser, he may work in a food booth cooking and serving hamburgers, the price of such items being less than that charged for a similar commercial item, and whether he may supervise this event. He further asks whether he may supervise the entire fundraising affair as a member of the Board of Deacons and whether he may act as judge for a lumberjack contest and a grease pole contest at the fundraiser.

         Section 100.5(b)(21 of the Rules of the Chief Administrator provides, in pertinent part:

No judge shall solicit funds for any educational, religious, charitable, fraternal or civic organization, or use or permit the use of the prestige of the office for that purpose, but may be listed as an officer, director or trustee of such an organization; provided, however, that no such listing shall be used in connection with any solicitation of funds. No judge shall be a speaker or the guest of honor at an organization's fundraising event, but he or she may attend such events.

         As the church function is a fundraiser, the judge should not participate in any prominent or substantial manner. However, the cooking and serving of hamburgers at a cost not designed for profit is permissible, because the judge's participation in this capacity in a background role is so minor and at such a low level as to fall within the “de minimis” principle. See Joint Op. Adv. Comm. on Jud. Ethics 89-83, 89-84 (Vol. IV) and Op. Adv. Corm. on Jud. Ethics 89-18 (Vol. 111). He may not serve as the Deacon in charge of the event as this would involve him too closely in fundraising.

         The judge may not act as a judge in the grease pole and lumberjack contests, as the judge's role would be too prominent and undignified and would be directly related to fundraising activity. In previous Committee Opinions 88-111 (Vol. 11) and 89-57 (Vol. 111) we have similarly found that judges should not judge a fundraising cake-baking contest or participate as a bingo caller at a fundraiser.