September 11, 1997
A judge who serves as the presiding judge of a County Drug Treatment Court
may not serve as an officer or director or assist in the formation of a
not-for-profit corporation or foundation, the sole purpose of which would
be to solicit funds and services for the benefit of the program for which
the court was established.
Judiciary Law §212(1)(n);
22 NYCRR 100.4(C)(3);
100.4(C)(3)(b)(i), (iii), (iv);
Opinions 95-88 (Vol. XIII),
88-07 (Vol. I).
An acting County Court Judge requests an opinion on whether, as the presiding judge of the County Drug Treatment Court, the judge can be an officer or director of a proposed foundation, the sole purpose of which would be to solicit contribution/services as a form of ancillary assistance to the drug treatment program supervised by the Court. Examples of the ancillary assistance cited are: to make available certificates and mementoes to be given out upon graduation from the Court's Drug Program and also the possibility of establishing child care for those defendants in the program when they make court appearances.
Section 100.4(C)(3) of the Rules Governing Judicial Conduct states in part:
(3) A judge may serve as a member, officer, or director of an organization or governmental agency devoted to the improvement of the law, the legal system or the administration of justice. He or she may assist such an organization in raising funds and may participate in their management and investment, but shall not personally participate in public fund-raising activities. He or she may make recommendations to public and private fund-raising agencies on projects and programs concerning the law, the legal system and the administration of justice.
There is no ethical constraint upon a judge passively accepting funds, goods or services for the court system which generally benefit the court and the public. See Judiciary Law §212(1)(n). However, the judge may not participate personally in the fund-raising. Opinion 95-88 (Vol. XIII).
While participation in community activities by judges is encouraged, there is always a prohibition against engaging in fund-raising activities or in any activity which would adversely affect his/her impartiality as a judge. Opinion 88-07 (Vol. I).
In this instance, the judge would be directly involved in forming the foundation, the sole purpose of which is to solicit funds/services which directly benefit the court in which the judge presides. This is distinguished from the community board or advisory committee for United Way or a foundation established by others for the benefit of the general public or the courthouse. See Opinion 95-88 (Vol. XIII). As the officer or director of this proposed foundation, it would be impossible to separate the presiding judge from the fund-raising activity which would benefit this judge's court directly.
The Committee therefore advises that the judge may not serve as an officer or director nor assist in the formation of the planned not-for-profit corporation/foundation.