Opinion 09-186

October 22, 2009

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

Digest:         A full-time judge may apply to and, if accepted, reside for one month in an artist colony that offers free room and board to all participants.

Rule:            22 NYCRR 40.1; 40.2; 100.2; 100.2(A); 100.2(C); 100.3(E)(1); 100.4(A)(1)-(3); 100.4(B); 100.4(D)(5); 100.4(D)(5)(g); 100.4(D)(5)(h); 100.4(H)(2); 100.4(I); Opinions 10-46; 06-105; 04-57; 99-145 (Vol. XVIII); 88-02 (Vol. I).

Opinion:

         A full-time judge who writes non-fiction as an extra-judicial activity asks whether he/she may apply to and, if accepted, reside for one month in an artists’ colony to finish a book. The colony is funded by an endowment established more than 100 years ago, by contributions solicited from individuals and organizations on an ongoing basis, and by grants from the National Endowment for the Arts and the New York State Council on the Arts. Members of the general public may apply to reside at the colony. Although participants receive no payment or salary, they receive free room and board valued at $10,000 per month, and their names are listed in an annual report about the colony along with their photographs and biographical information. The judge notes that he/she will take annual leave for the time he/she spends at the artist’s colony.

         A judge must avoid impropriety and the appearance of impropriety in all the judge’s activities (see 22 NYCRR 100.2), must act at all times in a manner that promotes public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]), and shall not lend the prestige of judicial office to advance the private interests of the judge or others (see 22 NYCRR 100.2[C]). Nevertheless, a judge may engage in extra-judicial activities, including speaking, writing, lecturing and teaching, as long as doing so does not (1) cast reasonable doubt on the judge’s capacity to act impartially as a judge; (2) detract from the dignity of judicial office; or (3) interfere with the proper performance of judicial duties and the activity is not incompatible with judicial office (see 22 NYCRR 100.4[A][1]-[3], [B]). For similar reasons, there are significant limitations on a judge’s acceptance of gifts (see 22 NYCRR 100.4[D][5]). A judge may, however, accept a scholarship or fellowship if awarded on the basis of the same terms and criteria applicable to all others (see 22 NYCRR 100.4[D][5][g]).

         The Committee believes that a month-long residency to finish writing a book is a permissible extra-judicial activity (see 22 NYCRR 100.4[B]), so long as it does not interfere with the proper performance of one’s judicial duties (see 22 NYCRR 100.4[A][3]; Opinion 10-46). Thus, the judge should make administrative arrangements to ensure that his/her one-month use of annual leave will not impair court operations (see 22 NYCRR 100.4[A][3]).

         When applying for the program, the judge may not lend the prestige of judicial office to advance his/her private interests (see 22 NYCRR 100.2[C]). Thus, while the judge may truthfully answer questions in the application concerning his/her occupation, the judge should not use judicial stationery to apply and if the organization appears in a matter before the judge, the judge should disqualify him/herself (see Opinion 88-02 [Vol. I]; 22 NYCRR 100.3[E][1]).

         In the Committee’s view, the free room and board awarded to residents of the artist colony is akin to a scholarship or fellowship (see 22 NYCRR 100.4[D][5][g]). As the inquiring judge advises that the application process is competitive, that he/she is not guaranteed admission, that any member of the general public may apply and that every participant in the program is provided with the same benefits, the inquiring judge may accept the award of free room and board if it is offered (see id.). The judge also should contact the Unified Court System’s Ethics Commission, the agency with the ultimate authority to interpret Part 40, for guidance on whether and how to report the value of the free room and board on the judge’s Annual Statement of Disclosure (see 22 NYCRR 40.1; 40.2; 100.4[I]; contact: Ethics Commission: 1-212-428-2899).¹

         Finally, the inquiring judge states that the administrators of the colony publish an annual report which includes the names of participating artists, their biographies and their photographs. The judge may permit the administrators to include him/her in the annual report and to mention that he/she is a judge in his/her biography, as the Committee previously has advised that “a judge who is participating in a permissible extra-judicial activity is not required to hide his/her identity as a judge” (see Opinion 06-105). However, the judge should take reasonable steps to ensure that the judge’s judicial position is not exploited by others for fund-raising or promotional purposes (see 22 NYCRR 100.2[C]; Opinions 04-57; 99-145 [Vol. XVIII]).

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            ¹By contrast, the Committee concludes that the value of the room and board need not be reported to the clerk of the court under Rule 100.4(H)(2) because it is not “compensation” for the judge’s extra-judicial activities (see 22 NYCRR 100.4[H][2]) and because it is permitted as “a scholarship or fellowship” rather than under the catch-all provision which requires reporting (compare 22 NYCRR 100.4[D][5][g] with 22 NYCRR 100.4[D][5][h]).