Opinion 14-46

April 24, 2014

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

Digest:         A full-time quasi-judicial official may serve as a coach for a local public school’s sports team and accept the reasonable compensation offered, subject to applicable reporting requirements.

Rules:          22 NYCRR 50.3(a); pt 100, Preamble; 100.2; 100.2(A); 100.4(A); 100.4(A)(1)-(3); 100.4(B); 100.4(H)(1); 100.4(H)(1)(a); 100.4(H)(1)(c)(1)-(2); 100.4(H)(2); 100.6(A); Opinions 13-06; 12-177; 12-107; 12-24.

Opinion:

         The inquiring full-time quasi-judicial official asks whether he/she may serve as a coach for a local public school’s sports team during the upcoming school year. The inquirer says the games and practices take place outside of working hours. Although the inquirer is willing to perform the job without pay, if necessary, the inquirer also asks whether he/she may accept the standard compensation for this work. It appears that the compensation is less than $5,000 for the entire season, which will include approximately 70 games as well as an unspecified number of practices over a three-month period.

          A judge must avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must always act to promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). A judge may engage in extra-judicial activities that 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]; 100.4[B]). Quasi-judicial officials are likewise required to comply with the Rules Governing Judicial Conduct in the performance of their judicial duties and otherwise must “so far as practical and appropriate” use such rules as guides to their conduct (22 NYCRR 100.6[A]; see also Opinion 12-107).

         The Committee has previously advised that a full-time judge may engage in “volunteer athletic coaching activities” as well as certain “associated instructional and administrative functions,” where they “do not appear to involve fund-raising or other prohibited activities” and “do not appear to pose a risk to the inquirer properly performing his/her judicial duties” (Opinion 12-177). Thus, the Committee concludes that the inquiring full-time quasi-judicial official may also engage in the described athletic coaching activities, subject to the same qualifications.

         A full-time judge may receive compensation for permissible extra-judicial activities if its source does not give the appearance of influencing the judge’s performance of judicial duties or otherwise give the appearance of impropriety, subject to certain limitations (see 22 NYCRR 100.4[H][1]). For example, the compensation must not exceed a “reasonable amount” and must not exceed what a person who is not a judge would receive for the same activity (22 NYCRR 100.4[H][1][a]). The Committee believes these requirements have met these circumstances: the payments’ source is a public school district, which is unlikely to appear before the inquiring quasi-judicial official, and the proposed compensation appears to be reasonable for the work involved.

         One final question remains, however, because a full-time judge also may not “solicit or receive compensation for extra-judicial activities performed for or on behalf of: (1) New York State, its political subdivisions or any office or agency thereof; [or] (2) a school, college or university that is financially supported primarily by New York State or any of its political subdivisions, or any officially recognized body of students thereof” (22 NYCRR 100.4[H][1][c][1]-[2]), subject to an exception that is inapplicable to sports referees (see Opinion 12-24).

         The Committee has not previously considered whether this specific provision applies to full-time quasi-judicial officials. It bears emphasis that the Rules Governing Judicial Conduct do not automatically apply to all extra-judicial activities of a quasi-judicial official, but only “so far as practical and appropriate” (22 NYCRR 100.6[A]; see also 22 NYCRR pt 100, Preamble [noting that the judicial ethics rules must be applied “in the context of all relevant circumstances”]). As previously noted, the fact that the source of the payment in this instance is a public school district does not create any appearance of impropriety under the circumstances presented. Moreover, it appears that the Rules Governing Conduct of Nonjudicial Court Employees provide for an independent layer of oversight, because court employees who wish to accept paid employment “in another department or agency of the State or a political subdivision,” even on a part-time basis, must obtain written consent from the appropriate administrative authority (22 NYCRR 50.3[a]). In light of all of these factors, the Committee can perceive no need to apply Section 100.4(H)(1)(c)(1)-(2) to the inquiring full-time quasi-judicial official.

         The Committee therefore concludes that the Rules Governing Judicial Conduct permit the inquiring full-time quasi-judicial official to serve as a coach for a local public school’s sports team and accept the reasonable compensation offered. However, because the compensation exceeds $150, it must be reported as provided by the Rules Governing Judicial Conduct (see 22 NYCRR 100.4[H][1][a]; 100.4[H][2]; Opinion 13-06 [applying the reporting requirement to a full-time quasi-judicial official]).

         The Committee takes no position on the application of the Rules Governing the Conduct of Nonjudicial Employees to the proposed extra-judicial activity. That question must be resolved by the Office of Court Administration, the agency with the ultimate authority to interpret Part 50. (Contact: ETHICS HELPLINE: 1-888-28ETHIC).