March 22, 2019
This responds to your inquiry (18-178) asking if you can serve on the board of a local mental health transitional housing not-for-profit entity that provides services to individuals, who participate voluntarily, some of whom may have had or will have contact with the criminal justice system.1
We have previously advised a judge may participate in civic and charitable activities that do not reflect adversely upon impartiality or interfere with the performance of judicial duties (see 22 NYCRR 100.2; 100.2[A]; 100.4[A][1-3]; and Opinion 07-81). However, a judge may not serve on a board of an organization to which he/she has the power to make referrals (see Opinions 17-102; and 07-02) or which is likely to “be engaged in proceedings that ordinarily would come before” him/her (22 NYCRR 100.4[C][a][I]). As you are a full-time judge, you also must not serve on the board if it is likely the entity “will be engaged regularly in adversary proceedings in any court” (see 22 NYCRR 100.4[C][a][ii]). In the event the organization appears before a judge as a party, witness or advocate, a judge must disqualify himself/herself, subject to remittal (see Opinion 15-213).
Subject to the limitations described in the opinions, you may serve on the board of directors of the entity.
Enclosed for your convenience, are Opinions 17-102; 15-213; 09-99; 07-81; and 07-02, which address this issue.
Very truly yours,
George D. Marlow, Assoc Justice
Appellate Div., First Dept. (Ret)
Hon. Margaret T. Walsh
Supreme Court Justice
1 We understand from your inquiry that the entity does not appear in your court and is not regularly engaged in adversarial proceedings in any court, and you do not make referrals to the entity or order participation in services provided by the organization. If any one or more of these assumptions is incorrect, please contact the Committee for further guidance.