Opinion 21-51

March 11, 2021

Digest:         A full-time judge may accept a grant from a not-for-profit arts services organization and use it, to the extent legally permissible, to rent space for and/or provide honoraria to poets, in order to provide free poetry readings to the community.

Rules:          22 NYCRR 100.2; 100.2(A); 100.2(C); 100.4(A)(1)-(3); 100.4(D)(5); 100.4(D)(5)(g); Opinions 18-47; 12-108; 09-186.

Opinion:

         A new full-time judge, who is also a poet by avocation, was awarded a grant from a non-profit local arts services organization to enhance opportunities for poets and exposure to poetry by arranging for free poetry readings. The judge asks if it is ethically permissible to accept the grant and use it to rent art spaces in the community to provide free in-person poetry readings and provide honoraria to the poets.¹ The inquirer applied for the competitive arts grant, which was open to all eligible community residents on the same terms and conditions, before assuming the bench.

         A judge must always avoid even the appearance of impropriety and must always act to promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2; 100.2[A]). A judge must 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 so 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]). While there are strict limitations on a judge’s acceptance of gifts (see 22 NYCRR 100.4[D][5]), a judge may accept a scholarship or fellowship if it is awarded based on the same terms and criteria applicable to other applicants (see 22 NYCRR 100.4[D][5][g]).

         We previously advised that a full-time judge, who writes non-fiction as an extra-judicial activity, may apply to and accept free room and board for one month to reside in an artist colony to finish a book (see Opinion 09-186). In the Committee’s view, the free room and board, valued at $10,000, was akin to a scholarship or fellowship, since the application process was competitive, any member of the general public could apply and every participant in the program was provided the same benefit (see 22 NYCRR 100.4[D][5][g]). Here, too, the arts grant offered to the inquiring judge was competitive, as any member of the local community could apply for the grant and (if successful) receive the same benefit.

         The judge advises that the contemplated poetry readings will be free and open to the general public. To the extent the judge will select the poets and/or poetry to participate in the poetry readings, we have advised that a full-time judge may serve on a charitable entity that receives, reviews and determines requests to fund arts and education projects (see Opinion 12-108).

         We believe the described activities are unlikely to compromise the judge’s actual or apparent neutrality or detract from the dignity of judicial office and, therefore, are permissible (cf. Opinion 18-47 [a full-time judge may participate in a free community performance of The Vagina Monologues by reading short factual/introductory paragraphs]).

         Accordingly, we conclude the judge may accept a grant from a not-for-profit arts services organization and use it, to the extent legally permissible, to rent space for and/or provide honorariums to poets, in order to provide free poetry readings to the community.

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¹ The judge notes that the contemplated in-person poetry readings are contingent on current public health restrictions being lifted; in the near term, such events are likely to be conducted online.