Opinion 06-141

December 7, 2006

Please Note: See AO-347 concerning the status of Section 100.4(H)(2).

Digest:         A full-time judge may be a member of a musicians’ union and may accept compensation as a union member for musical performances, as long as the band itself is not a business enterprise and the judge’s involvement is not publicized.

Rules:          22 NYCRR 100.4(A); 100.4(C)(3); 100.4(D)(1)(a); 100.4(D)(3); 100.4(H);    Opinions 05-149; 02-20; 00-24 (Vol. XIX); 99-145 (Vol. XVII); 98-121 (Vol. XVII); 96-134 (Vol. XV); 95-55 (Vol. XIII); 94-57 (Vol. XII); 94-19 (Vol. XII); 93-07 (Vol. X).

Opinion:

         A full-time judge plays the trombone in several local musical groups. These “rehearsal groups” mostly play for their own personal enjoyment, but “on rare occasions” (approximately three to five times a year) are asked to perform for a fee based on the local musician’s union pay scale. The judge inquires whether he/she may be a member of the local musician’s union and, if so, whether he/she may accept compensation, on this basis, for such occasional musical performances.

          A judge may be a member of a “cultural, fraternal or civic organization not conducted for profit.” 22 NYCRR 100.4(C)(3). This Committee has, more specifically, held that a full-time judge may be active in a union, subject to the appropriate legal restrictions and limitations articulated in the Rules Governing Judicial Conduct. Opinion 93-07 (Vol. X). In addition, membership in the musician’s union would not cast doubt on the judge’s impartiality, detract from the dignity of judicial office, or be considered incompatible with judicial office. 22 NYCRR 100.4(A). Therefore, this Committee concludes that a full-time judge may maintain membership in a musician’s union.

         Although a full-time judge may not serve as an “active participant of any business entity” (22 NYCRR 100.4(D)(3)), the Committee concludes that the musical groups in which the inquirer plays are not business entities because they are primarily rehearsal groups that play for their own personal enjoyment and seldom perform for a fee. Compensation as a member of the musicians’ union is thus ethically permissible for occasional performances of the type described in the inquiry. 22 NYCRR 100.4(H). The judge may accept a “reasonable” pay scale set by the union on the same terms as other union members, subject to a reporting requirement if the compensation exceeds $150. 22 NYCRR 100.4(H)(1)(a), 100.4(H)(2).

         This result is not inconsistent with our many prior opinions on this subject. Compare Opinions 02-20 (judge permitted to lecture at a business training workshop offered by a not-for-profit organization); 00-24 (Vol. XIX) (judge permitted to act in a community theater production, and be compensated, if the organization is a not-for-profit entity); 98-121 (Vol. XVII) (judge permitted to teach law at a non-profit educational institution, but not at a commercial, for-profit proprietary educational institution); 94-57 (Vol. XII) (judge permitted to teach dance, with compensation, for not-for-profit entity); with Opinions 96-134 (Vol. XV) (judge precluded from acting in a commercial motion picture); 95-55 (Vol. XIII) (judge precluded from alternative employment as an employee or independent contractor for any profit-making entity, such as a gas station, landscaper, security company, beach club, carpentry shop or taxi company); 94-19 (Vol. XII) (judge precluded from teaching dance at a private performing arts studio, even on a volunteer basis).

         The Committee notes, however, that any promotion of the performance or event must not exploit the judge’s judicial position. 22 NYCRR 100.4(D)(1)(a); Opinions 05-149; 99-145 (Vol. XVII).