Opinion 15-190

October 22, 2015

Digest:         A judge may not serve on the board of a not-for-profit agency that offers traffic safety education programs to which the judge may make referrals.

Rules:          22 NYCRR 100.2; 100.2(A); 100.2©); 100.4(A)(1)-(3); 100.4(C)(3)(a)(i); Opinions 11-44; 08-103; 07-81; 07-02; 02-91; 00-101/00-104; 98-10.

Opinion:

         A part-time judge asks if he/she may serve without compensation on the board of directors for a not-for-profit agency with a broad educational mission that includes certain traffic safety education programs. Defendants in the judge’s court are occasionally required to attend such programs. While the judge would not personally participate in teaching the programs, he/she would, as a board member, have general oversight over all programming.

         A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2), must always act to promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]), and must not lend the prestige of judicial office to advance private interests (see 22 NYCRR 100.2[C]). All judges may generally serve on a not-for-profit’s board, if the entity is unlikely to “be engaged in proceedings that ordinarily would come before the judge” (see 22 NYCRR 100.4[C][3][a][i]), but the judge’s extra-judicial activities also must not cast reasonable doubt on his/her impartiality or otherwise conflict with judicial duties (see generally 22 NYCRR 100.4[A][1]-[3]).

         The Committee has previously advised judges not to serve on the board of directors of organizations or agencies to which a judge, directly or indirectly, refers cases, defendants or litigants (see Opinions 11-44 [founding group or board of directors of charter school operated by corporation with Department of Social Service contract to operate Persons in Need of Supervision diversion program serving youth who appear before judge]; 08-103 [board of directors of not-for-profit entity providing classes to at-risk defendants in cases before judge]; 07-02 [board of directors of not-for-profit center providing therapeutic visitation services to persons directly or indirectly referred by judge’s court, and whose employees are likely to be involved in proceedings in judge’s court]; 02-91 [board of directors of not-for-profit organization operating residential service programs where judge may indirectly refer children]; 00-101/00-104 [board of directors of not-for-profit entity providing sentencing alternatives in judge’s court or of youth shelter where judge may send youth unable to make bail]; 98-10 [board of directors of drug treatment entity where cases in judge’s court are assigned]; compare Opinion 07-81 [judge may serve on board of directors of not-for-profit charity providing residences, medical and mental health services to orphans, foster children and adults with disabilities, where organization would not appear in, or receive direct or indirect referrals from, judge’s court]).

         In plea agreements in vehicle and traffic cases, defendants in this judge’s court may be told to attend the not-for-profit agency’s safety programs. Although they are a relatively small part of the agency’s overall educational programming, the Committee concludes there would be, at the very least, an appearance of impropriety due to this apparent conflict between the judge’s adjudicative duties and his/her role as a board member.

         Therefore, the judge may not serve on the agency’s board of directors.