Opinion 20-113

September 10, 2020

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

Digest:         A full-time judge may accept reasonable compensation from the home team as a sports referee for collegiate matches, even those involving SUNY/CUNY schools, where the judge is doing so “for or on behalf of” a not-for-profit sports organization independent from the competing teams.

Rules:          22 NYCRR 100.2; 100.2(A); 100.4(A)(1)-(3); 100.4(B); 100.4(D)(3); 100.4(H)(1); 100.4(H)(1)(a); 100.4(H)(1)(c)(1)-(2); 100.4(H)(2); Opinions 20-02; 17-01; 14-46; 14-23; 12-177.

Opinion:

         A full-time judge is becoming a certified collegiate sports referee, and will join the private, not-for-profit local chapter of a national intercollegiate association for that sport. The association assigns referees to officiate at collegiate sports matches for teams fielded by both private not-for-profit educational institutions and publicly funded ones. The association is independent of the educational institutions and their sports teams; it independently hires, trains, tests, credentials, selects and schedules the referees. The association also sets compensation rates to be paid by the teams to the referees. Typically, the “home team” pays the assigned referees directly, although occasionally the sports conference pays them. The judge asks if he/she may officiate in matches involving schools, colleges or universities that are financially supported primarily by New York State or any of its political subdivisions (e.g. CUNY or SUNY) and whether it makes a difference who pays the fee.¹ We understand the judge is unlikely to earn more than $1,500 during the first year of officiating.

         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 participate in extra-judicial activities that do not cast 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]). While full-time judges may not serve as an “employee or other active participant of any business entity” (22 NYCRR 100.4[D][3]), they “may receive compensation and reimbursement of expenses” for permissible extra-judicial activities, subject to limitations (22 NYCRR 100.4[H][1] [noting the source of payments must not “give the appearance of influencing” performance of judicial duties or “otherwise give the appearance of impropriety”]). Compensation for a full-time judge’s extra-judicial activities must “not exceed a reasonable amount nor shall it exceed what a person who is not a judge would receive for the same activity” (22 NYCRR 100.4[H][1][a]). Of particular relevance here, “[n]o full-time judge shall solicit or receive compensation for extra-judicial activities performed for or on behalf of: … (2) a school, college or university that is financially supported primarily by New York State or any of its political subdivisions” (22 NYCRR 100.4[H][1][c][2]).

         We see nothing inherently improper in a judge’s officiating at a collegiate sports match. We have said full-time judges may engage in volunteer athletic coaching activities (see Opinion 12-177); may receive reasonable compensation as a sports referee at a private not-for-profit school (see Opinion 20-02); and may receive compensation as a sports referee for games between private not-for-profit clubs (see Opinion 17-01). In each instance, the extra-judicial activities took place outside of the judge’s working hours, did not involve the judge in fund-raising, provided reasonable or no compensation to the judge, and did not raise questions about the judge’s impartiality in the performance of his/her judicial duties (see 22 NYCRR 100.4[H][1]).

         The novel question here is that some matches assigned to this full-time judge will include SUNY or CUNY teams, thus potentially implicating Section 100.4(H)(1)(c) (2).² That is, when the judge officiates at a collegiate sports match which involves a SUNY/CUNY team, is that extra-judicial activity “performed for or on behalf of: … (2) a school, college or university that is financially supported primarily by New York State or any of its subdivisions” (22 NYCRR 100.4[H][1][c][2])? If so, the rule would appear to prohibit compensation for the judge, as its sole exception “is inapplicable to sports referees” (Opinion 14-46).

         We note, initially, that payment by the home team (rather than the visiting team) does not mean the referee’s services are “performed for on or behalf of” the home team. Surely, both teams expect the referee to officiate impartially, in accordance to standards set by the association, regardless of which team pays. Indeed, we believe the overall relationship between the referee, schools and association is not defined by who pays the fees. Having the home team school pay the referee appears to be primarily a matter of administrative convenience and says nothing about for whom the referee is performing. The referee does not officiate at the assignment, direction or control of the individual schools involved in each sports match. Where, as here, the not-for-profit association hires, trains, certifies, assigns, and schedules the referee, fixes the level of compensation, and directs the method of payment, we conclude the referee is “perform[ing] for or on behalf of” the association, regardless of which teams are playing.

         We find additional support for this view in the area of legal publications. In Opinion 14-23, we said a full-time judge, who independently wrote, published and marketed a bench book, could sell copies to the Office of Court Administration. Clearly, if the judge wrote the bench book “for or on behalf of” the court system (22 NYCRR 100.4[H][1][c][1]), then the judge could not accept compensation for this activity. But where the judge wrote the book independently, not at the state’s behest, the activity was not “performed for or on behalf of” the state (id.). Accordingly, we said Section 100.4(H)(1) did not prohibit the judge from receiving reasonable compensation for the bench book (see id. [concluding the rules do not require full-time judges “to give away [their] intellectual property for free to governmental purchasers”]). Here, too, we think a full-time judge who officiates at a sports match under the auspices of an intercollegiate association need not be denied reasonable compensation, merely because one or both teams are from state-funded schools.

         Accordingly, as it appears the judge will be officiating at intercollegiate matches “for or on behalf of” a not-for-profit sports organization independent from the competing teams, we conclude it is permissible for the judge to do so in his/her non-working hours, and accept reasonable compensation therefor, even when the matches involve SUNY/CUNY schools and regardless of whether the fee is paid by a SUNY/CUNY school, a private not-for-profit educational institution, or the sports conference. However, compensation in excess of $150.00 is subject to reporting requirements set forth in 22 NYCRR 100.4(H)(2).

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¹The judge notes the fee could be paid by (a) a state-funded school, college or university as the home team; (b) a private educational institution as the home team; or (c) the sports conference.

²Although we said a full-time quasi-judicial official may coach a local public school’s sports team and accept the reasonable compensation offered, our conclusion rested on the inquirer’s quasi-judicial status (see Opinion 14-46). That is, we expressly declined to apply Section 100.4(H)(1)(c)(1)-(2) to full-time quasi-judicial officials (see id.).