Opinion 09-74

March 12, 2009

Please Note: See AO-347 concerning the status of Sections 100.4(D)(5)(h) and 100.4(H)(2).

Digest:        A judge may accompany his/her spouse, who is an elected law enforcement official, to a conference in a foreign country for law enforcement leaders world wide, where the conference subject matter is sufficiently broad and the inquiring judge’s attendance is due only to his/her spousal relationship. The judge may accept payment of his/her travel and other conference expenses from the conference host, but must comply with any applicable reporting requirements.

Rules:         22 NYCRR 100.2; 100.2(A); 100.4(A)(1)-(3); 100.4(D)(5)(b); 100.4(D)(5)(h); Opinions 04-20; 99-137 (Vol. XVIII); 94-31 (Vol. XII)

Opinion:

         A judge asks whether he/she may accompany his/her spouse, who is an elected law enforcement official, to a conference in a foreign country. According to the judge, the conference is convened for “leaders in law enforcement world wide,” and the purpose of the conference is to “discuss global crime developments and exchange professional ideas in order to prepare for challenges ahead.” The judge’s and his/her spouse’s expenses will be paid in full, including air travel, hotel accommodations and meals. The judge would like to attend the conference, but would not participate in conference events and programs.

         A judge must avoid impropriety and the appearance of impropriety in all the judge’s activities (see 22 NYCRR 100.2) and must act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary (see 22 NYCRR 100.2[A]). And, a judge may participate in extra-judicial activities as long as they do not cast reasonable doubt on the judge’s capacity to act impartially as a judge; detract from the dignity of judicial office; or interfere with the proper performance of judicial duties and are not incompatible with judicial office (see 22 NYCRR 100.4[A] [1] - [3]).

         The Committee previously has advised that judges should not attend a law enforcement training session where the agenda is “born of strictly partisan concerns” with the avowed purpose “to maximize enforcement” and “enhance the conviction rate” (Opinion 94-31 [Vol. XII]). The Committee also has advised that a judge who is a former law enforcement official should not continue as a regular or honorary member of an association of active law enforcement officials because doing so may cast doubt on the judge’s impartiality and independence (see Opinion 99-137 [Vol. XVIII]). Similarly, a judge should not accept an invitation to attend a conference entitled “The Path to Prosecution,” which is sponsored by the Division of Criminal Justice Services and is intended “to disseminate knowledge and improve collaboration between various agencies in order to ‘enhance the prosecution of these crimes.’” (Opinion 04-20). Implicit in all of these opinions are concerns regarding judicial independence and the appearance of impropriety, both in fact and in perception.

         Although the event that is the subject of this inquiry is arranged for the benefit of law enforcement officials, it is the Committee’s view that the subject matter is sufficiently broad and the inquiring judge’s attendance due only to his/her spousal relationship with an elected law enforcement officer is sufficiently limited so as to avoid even an appearance of impropriety. Accordingly the judge may attend both the social and substantive programs of the conference.

         With respect to payment of the judge’s travel expenses, the Committee notes that it is the judge’s spouse who is the invited party. Because the judge would be present solely as his/her spouse’s guest, the judge may accept payment of his/her expenses for the trip from the conference host. However, as such payment would constitute a “gift, award or benefit incident to the business, profession or other separate activity of a spouse” (see 22 NYCRR 100.4[D][5][b]), the judge must comply with any applicable reporting requirements (see 22 NYCRR 100.4[D][5][h]).