January 29, 2015
Digest: Subject to certain limitations, a full-time judge may serve on the board of directors of a not-for-profit local development corporation.
Rules: 22 NYCRR 100.2; 100.2(A); 100.4(A)(1)-(3); 100.4(C)(2)(a); 100.4(C)(3); 100.4(C)(3)(a)(i)-(ii); 100.4(C)(3)(b)(i), (iv); Opinions 09-156; 01-63; 94-65; 93-108.
A full-time judge asks if he/she may serve without pay on the board of directors of a community-based, not-for-profit local development corporation “intimately connected with” a particular educational institution and which played a significant role in that educational entity’s placement in a particular neighborhood.1 The judge states the development corporation seeks to build community by planning, promoting, coordinating and advancing responsible development to revitalize the neighborhood and strengthen the region. The judge says he/she will not be involved in any fund-raising. Instead, as a board member, the judge would attend meetings and offer his/her perspective as to “what type of development might work best for both [the educational institution] and the surrounding community.” Finally, the judge states the corporation will not be engaged in proceedings that would come before the judge’s court.
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 generally engage in extra-judicial activities so long as those activities (1) do not cast reasonable doubt on the judge's ability to act impartially; (2) do not detract from the dignity of judicial office; and (3) do not interfere with the proper performance of judicial duties and are not incompatible with judicial office (see 22 NYCRR 100.4[A]-). A judge must not use or permit the use of the judicial office’s prestige for fund-raising or membership solicitation nor personally participate in soliciting funds or other fund-raising activities (see 22 NYCRR 100.4[C][b][i], [iv]). Subject to these and other limitations, a judge may serve as an officer, director or non-legal advisor of a civic or charitable organization not conducted for profit (see 22 NYCRR 100.4[C]), provided the organization (i) is unlikely to be engaged in proceedings that ordinarily would come before the judge and (ii) in the case of a full-time judge, is unlikely to be engaged regularly in adversary proceedings “in any court” (22 NYCRR 100.4[C][a][i]-[ii]).
The Committee has previously advised a full-time judge may serve on the board of directors of a local not-for-profit park development corporation chartered to create a waterfront park in the judge's municipality (see Opinion 01-63). The inquiring judge explained that the corporation had used a variety of methods, including public hearings, to obtain public input about the project, and the Committee noted there was no indication in the inquiry of “any controversial issues or litigation surrounding the park project” (id.). The Committee has also similarly advised that a full-time judge may participate in an informal, non-governmental civic group of individuals interested in addressing the city’s quality of life, economic and social problems, subject to several considerations (see Opinion 09-156);2 may be a member of a non-partisan citizen's committee not involved in controversial issues (see Opinion 93-108); and may serve as president of a coalition of community organizations formed to preserve a historic site, but must “divorce himself/herself from all fund solicitations” (see Opinion 94-65).
Under these circumstances, it does not appear the inquiring judge’s participation in this not-for-profit corporation is ethically prohibited. There is no indication the development corporation is likely to be either engaged in adversarial proceedings that ordinarily would come before the inquiring judge, or regularly engaged in adversarial proceedings in any court (see 22 NYCRR 100.4[C][a][i]-[ii]). The inquiring judge states that he/she will not be involved in fund-raising on behalf of the development corporation, nor is it likely the judge’s proposed participation would cast reasonable doubt on the judge’s impartiality as a judge, detract from judicial dignity, interfere with the proper performance of judicial duties, nor otherwise prove incompatible with judicial office (see generally Opinions 09-156; 01-63; 94-65; 93-108; 22 NYCRR 100.4[A]-; 100.4[C][b][i], [iv]).
The Committee therefore concludes that, so long as the position does not interfere with the judge’s judicial duties, the judge may serve as a director of the not-for-profit local development corporation. Of course, should any of the circumstances described in the inquiry alter – including if the organization becomes “engaged regularly in adversary proceedings in any court” (22 NYCRR 100.4[C][a][ii]) – the judge must re-assess the propriety of his/her participation (see Opinion 01-63).
1 The judge has strong personal connections with the educational institution.
2 There is no indication in the present inquiry that the not-for-profit local development corporation is “a governmental committee or commission or other governmental position” (22 NYCRR 100.4[C][a] [full-time judge may not accept appointment to such governmental positions, when they are “concerned with issues of fact or policy in matters other than the improvement of the law, the legal system or the administration of justice”]).