Opinion 19-127

December 12, 2019

Please Note: While it does not affect the outcome here, see AO-347 concerning the status of Section 100.4(H)(2).

Digest:         (1) A part-time judge may attend out-of-state judicial education courses at the National Judicial College.

                   (2) The judge may apply for and accept an educational grant or scholarship from:

                   (a) the National Judicial College or

                   (b) a County Traffic Safety Board, provided there is no financial or referral connection between the judge and the Board, and there is little likelihood that the Board’s investigations and recommendations will become the subject matter of cases before the judge.

                   (3) The judge may not request or accept funds for judicial education from a local Victim Impact Panel, where that organization’s sole funding source is fees paid by defendants for attendance at court-ordered sessions.

Rules:          22 NYCRR 100.2; 100.2(A); 100.3(B)(1); 100.4(A)(1)-(3); 100.4(C)(3)(b)(i); 100.4(D)(5); 100.4(D)(5)(g)-(h); 100.4(H)(1)-(2); 100.4(H)(1)(b); Opinions 15-190; 14-74; 14-26; 14-20; 14-09; 13-79; 12-64; 12-22; 09-186; 09-122; 06-82; 04-70; 99-176; 96-106; 91-124; 91-20; 87-28(b); 87-28(a).

Opinion:

         The inquiring town justice wishes to take judicial education courses at the National Judicial College, an out-of-state not-for-profit educational organization funded by governmental organizations, private entities and attendees’ tuition. As the town will not cover the full cost of tuition and travel expenses, the judge asks if he/she may apply for and accept alternative sources of funding, such as a partial scholarship from the National Judicial College, the local Victim Impact Panel, and/or the county’s Traffic Safety Board.

         A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must always act in a manner that promotes public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). A judge’s extrajudicial activities must be compatible with judicial office and 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 (see 22 NYCRR 100.4[A][1]-[3]). A judge must “be faithful to the law and maintain professional competence in it” (22 NYCRR 100.3[B][1]). A judge must not personally participate in the solicitation of funds (see 22 NYCRR 100.4[C][3][b][i]) but “may receive compensation and reimbursement of expenses” for permissible extra-judicial activities, subject to certain limitations (22 NYCRR 100.4[H][1]).¹ For example, the source of payments must not “give the appearance of influencing the judge’s performance of judicial duties or otherwise give the appearance of impropriety” (22 NYCRR 100.4[H][1]). Although there are significant limitations on a judge’s acceptance of gifts (see 22 NYCRR 100.4[D][5]), a judge may accept a scholarship or grant if awarded on the basis of the same terms and criteria applicable to all others (see 22 NYCRR 100.4[D][5][g]).

Attending Courses at the National Judicial College 

         Ordinarily, a judge may attend continuing legal education programs, even if they relate to legal issues that may come before the judge (see Opinion 14-26). In our view, attending out-of-state courses at the National Judicial College is ethically permissible and is consistent with the judge’s obligation to maintain his/her professional competence (see 22 NYCRR 100.3[B][1]; Opinions 14-74; 12-64).²

Accepting a Scholarship from the National Judicial College

         We have said a judge may attend a judicial education program on land use issues sponsored by the National Judicial College, where admission for the selected judges was free because it was entirely funded by a non-profit trade association of housing industry entities (see Opinion 96-106). Significantly, the College selected the faculty and course content, and the court system selected the attendees; the trade association merely funded the program (see id.). We have also said a judge may accept a grant or fellowship for any permissible purpose, provided that the grant or fellowship is awarded on the same terms and criteria applied to other applicants (see Opinion 12-22) and may likewise apply to and, if accepted, reside for one month in an artist colony that offers free room and board to all participants (see Opinion 09-186). Conversely, we said a judge may not accept a scholarship to a private legal training program that is provided by an attorney or entity that is likely to appear before the judge (see Opinion 04-70).

         Here, of course, the National Judicial College is unlikely to appear before the judge. We conclude that the judge may apply for and accept a scholarship or grant from the College, on the same terms as other applicants (see 22 NYCRR 100.4 [D][5][g]; Opinions 12-22; 09-186; 96-106). In the extremely unlikely event that the College or its interests appear before this judge, he/she must disclose receipt of the scholarship for a reasonable period of time (see Opinion 14-74).

Financial Assistance from the Victim Impact Panel

         The judge also asks if he/she may apply for and accept financial assistance to attend the College from the local victim impact panel. The victim impact panel is a non-profit organization whose purpose is to educate and deter future illegal behavior of defendants convicted of various vehicle and traffic matters. Its sole funding source is the $25 fee paid by each attending defendant, pursuant to court orders issued by the inquiring judge and his/her judicial colleagues.

         In prior opinions, we advised that a judge may not set up, or be a moderator or a presenter at a victim impact panel for defendants when the judge and his/her colleagues have ordered those defendants to attend (see Opinions 13-79; 06-82; 91-20), because to do so could create an appearance of impropriety or partiality (id.). Similarly, we have advised that, because of a possible conflict of interest incompatible with the performance of judicial duties, a judge may not sit on a Stop DWI advisory board or sit on the board of a not-for profit organization that offers traffic safety training to which the judge may make referrals (see Opinions 15-190; 91-124).  

         In the present inquiry, the potential for the appearance of partiality and impropriety is heightened by the fact that the local victim impact panel is funded exclusively from the fees defendants pay to attend pursuant to court orders. Thus, there is a direct link between the number of judicial orders directing defendants’ attendance and the amount of funding available to the local victim impact panel. We also observe that judicial education at the National Judicial College does not appear to be in alignment with the panel’s stated purpose, which is to educate and deter convicted defendants from the behavior that resulted in the conviction. Permitting the judge to request or accept funding from the panel in order to attend unrelated training could erode the public’s confidence in the judge’s impartiality.

         Thus, the judge may not request or accept funding from the victim impact panel to attend judicial training at the College.

Financial Assistance from County Traffic Safety Board

         Finally, the judge asks if he/she may apply for and accept funding from the local County Traffic Safety Board to attend educational programs at the National Judicial College. The Board is a non-profit organization funded by the county. Its membership includes representatives from the highway department, law enforcement, town/village administrators, the judiciary and the public. The Board investigates highway and traffic safety issues and makes recommendations to state and local governments and their agencies on possible solutions. The Board occasionally offers public education on highway or traffic safety issues. According to the inquiring judge, neither he/she or the courts have a financial, referral or other connection with the Board. Although not expressly stated in the inquiry, we assume that the Board has an existing custom and practice of offering scholarships or grants for educational purposes.³

         Although we have not addressed the propriety of a judge receiving tuition assistance from a local traffic safety board, we note that a judge may serve on such a board, where it does not accept court referrals, is not funded by court-imposed fines, and is unlikely to have any involvement in cases before the judge (compare Opinions 09-122; 99-176 [judge may serve, subject to disqualification, if facts in a case before the judge may have been the subject of investigation or recommendation by the board] with Opinions 87-28(b) [judge may not serve on Traffic Safety Board, where fines levied by the judge go to one of that board’s programs]; 15-190 [judge may not serve on board of not-for-profit agency that offers traffic safety education programs to which the judge would refer defendants]).

         Unlike the local victim impact panel, the Board described here is not oriented toward punishment and deterrence and is not financially dependent on court-imposed imposition fines or surcharges or court referrals. Indeed, the judge has no financial or referral connection with the Board, and it is unlikely that the subject matter of the Board’s investigations or recommendations will come before the judge. On these facts, we see no reason to fear that the judge would be treated differently than other similarly situated scholarship or grant applicants (see 22 NYCRR 100.4[D][5][g]).

         We therefore conclude that the inquiring judge may apply for and accept funding from the Board “on the same terms and based on the same criteria applied to other applicants” (22 NYCRR 100.4[D][5][g]) to cover the costs of attending educational programs at the College.

         Of course, if the relationship between the Board and the courts changes, or if a case before the judge involves the Board’s investigations or recommendations, the judge should contact us for further guidance on possible disclosure/disqualification issues (see e.g. Opinion 99-176).

         Finally, where, as here, the proposed scholarship(s) or grants would cover only the actual cost of tuition and “the actual cost of travel, food and lodging reasonably incurred by the judge” (22 NYCRR 100.4[H][1][b] [emphasis added]), we note our prior comment in Opinion 09-186 n1 that such expense reimbursement:

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]).

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¹ Although Section 100.4(H)(1)-(2) refers only to full-time judges, we see no reason why part-time judges cannot likewise accept reimbursement of expenses for permissible extra-judicial activities under the same conditions as a full-time judge.

² Although some proposed educational programs may be problematic (see e.g. Opinions 14-20 [inviting a local expert “who regularly consults with and testifies as an expert on behalf of the District Attorney and/or the Department of Social Services” to present an in-house judicial training on child abuse to all local Family Court judges]; 14-09 [attending a bar association presentation “at which the judge’s decision will be singled out for discussion by an individual associated with one side of the case, while the case is pending or impending”] [emphasis added]; 87-28[a] [DWI training provided by the district attorney’s office only for the judges before whom the district attorney’s office appears]), we see no such concerns here.

³ If this assumption is incorrect, the judge should contact us for further guidance.