Opinion 22-119

September 8, 2022

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

Digest:         (1) A new full-time judge may liquidate the remaining inventory from a prior business activity on the judge’s personal eBay account. The aggregate profit from any such sales in excess of $150 over the course of a calendar year must be reported as compensation for an extra-judicial activity under Section 100.4(H)(2).

(2) A judge may not accept gratuities or other compensation for officiating a wedding in excess of the amount permitted by law. However, a judge may receive reimbursement of reasonable and necessary actual travel, food and lodging expenses incurred while performing an out-of-town wedding, which need not be reported pursuant to Section 100.4(H)(2).

(3) A judge may maintain personal social media accounts, subject to generally applicable limitations on judicial speech and conduct.

Rules:          GML § 805-b; 22 NYCRR 100.2; 100.2(A); 100.2(B); 100.2(C); 100.3(B)(1); 100.3(B)(8); 100.4(A)(1)-(3); 100.4(D)(1)(a); 100.4(D)(3); 100.4(H)(1); 100.4(H)(1)(b); 100.4(H)(2); 100.4(G); 100.5(A)(1); Opinions 21-170; 20-58; 18-93; 18-74; 15-121; 12-107; 10-138; 08-176; 06-138; 04-26; 03-02; 01-14; 95-74; 2022 Ann Rep of NY Commn on Jud Conduct at 18-20.

Opinion:

         A new full-time judge asks about their reporting obligations under Section 100.4(H)(2) and about participating in online social networks after assuming the bench.

         A judge must always 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]). Moreover, a judge must conduct all the judge’s extra-judicial activities so that they do 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 are not incompatible with judicial office (see 22 NYCRR 100.4[A][1]-[3]).

Income from a Prior Business Activity

         The judge first asks if they must file a report with the clerk of the court concerning net income over $150 from selling leftover inventory from a prior business on eBay, where no individual transaction results in profit over $150, but the aggregate amount over the course of a calendar year may meet the threshold.

         A full-time judge may not be an "active participant" in any business entity (22 NYCRR 100.4[D][3]), but 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]). In addition, Section 100.4(H)(2) provides:

A full-time judge shall report the date, place and nature of any activity for which the judge received compensation in excess of $150, and the name of the payor and the amount of compensation so received. ... The judge's report shall be made at least annually and shall be filed as a public document in the office of the clerk of the court on which the judge serves or the office designated by law.

         In considering the limitations on a judge's business and financial activities, we have said a full-time judge may not engage in business activity that is pursued as a "hobby," such as the buying and selling of carpets (Opinion 95-74). Nonetheless a full-time judge may make a "one time liquidation" of the assets by way of "consignment to an auction house or dealer" as a preferred method of dealing with the assets (id.). We likewise advised that a full-time judge may dispose of the judge's own personal collection of sports memorabilia through a one-time liquidation, where such activity would not constitute an impermissible ongoing business activity (see Opinion 03-02).

         Here, the judge seeks to liquidate the remaining inventory from a business activity in which they were engaged prior to assuming full-time judicial office. We conclude that, as long as no new inventory is purchased to list for sale, the judge is not engaging in a continuing business and may liquidate the former business entity's inventory on the judge's personal eBay account. We note that this online account should not reference the judge's judicial status (see 22 NYCRR 100.2[C]; 100.4[D][1][a]; Opinions 18-93; 12-107).

         In addition, any aggregate profit from the eBay sales in excess of $150 over the course of a year must be reported as compensation for an extrajudicial activity under 22 NYCRR 100.4(H)(2). In considering a similar inquiry, we advised that net rental income in excess of $150 derived from an Airbnb rental property must be reported, with Airbnb disclosed as the "payor" that collected and remitted the rental income (Opinion 22-63/22-74(A)/22-87). It appears that eBay similarly deposits the proceeds of a sale to a linked bank account, deducting fees and other costs automatically, and assigns each payout a unique identifier. Therefore, we find that the judge may identify eBay as the "payor" for purposes of Section 100.4(H)(2) reporting.¹

Gratuities for Officiating Weddings

         The inquiring judge charges $100 to solemnize a marriage (see GML § 805-b), but anticipates receiving gratuities that would bring the total amount received in excess of $150. The judge asks if they must report the entire amount received (i.e. the fee plus the gratuity) to the clerk of the court under Section 100.4(H)(2).

         According to GML § 805-b, "no public officer … shall be prohibited from accepting any fee or compensation having a value of one hundred dollars or less, whether in the form of money, property, services, or entertainment, for the solemnization of a marriage by such public officer at a time and place other than the public officer's normal public place of business, during normal hours of business." We have advised that a judge who receives gratuities for officiating at a wedding that exceed the limit authorized by state law must return the excess to the parties (see Opinion 06-138). As the inquiring judge must not receive gratuities for officiating at a wedding which causes the total compensation paid to exceed the amount permitted by law, we anticipate that the judge's total compensation will not meet the $150 threshold for reporting. The reporting question as presented is therefore moot.

         For completeness, however, we note that a judge may receive reimbursement of reasonable and necessary expenses incurred while performing an out-of-town wedding (see Opinion 04-26). As Section 100.4(H)(2) requires only the reporting of "compensation," which is distinguished from "expense reimbursement," the judge need not report the expense reimbursement unless the payment exceeds "the actual cost of travel, food and lodging reasonably incurred by the judge and, where appropriate to the occasion, by the judge's spouse or guest" (22 NYCRR 100.4[H][1][b]).

Social Media Use

         Finally, the judge asks if they may maintain a profile on a dating website, communicate online for the purpose of dating, and maintain social media accounts on Facebook, Instagram, and LinkedIn² after their window period expires.

         As relevant here, a judge must conduct all of the judge's extra-judicial activities so that they do not detract from the dignity of judicial office (see 22 NYCRR 100.4[A][2]). A judge also must "not allow family, social, political or other relationships to influence the judge's judicial conduct or judgment" (22 NYCRR 100.2[B]) and must "not be swayed by partisan interests, public clamor or fear of criticism" (22 NYCRR 100.3[B][1]). A sitting judge must not "directly or indirectly engage in any political activity" unless an exception applies (22 NYCRR 100.5[A][1]).

         We assume for present purposes that the judge is asking about the judge's own personal social media accounts on Facebook, Instagram, and LinkedIn, rather than any campaign accounts the judge may have used in seeking election to public office. In our view, a newly elected judge need not necessarily close down personal social media accounts at the close of their window period, but must exercise discretion in using such accounts in order to comply with the Rules Governing Judicial Conduct.

         A judge's online activities are subject to generally applicable limitations on judicial speech and conduct. For instance, a full-time judge may not proffer legal advice (see 22 NYCRR 100.4[G]) or comment publicly on "a pending or impending proceeding in any court within the United States or its territories" (22 NYCRR 100.3[B][8]). The public nature of communications on social media platforms requires that the judge be "mindful of the appearance created when he/she establishes a connection with an attorney or anyone else appearing in the judge's court through a social network" (Opinion 08-176; see also Opinion 20-58 ["a judge's personal social media website is likely to be seen as inviting or encouraging interaction with the judge"]). In addition, a judge must take care that their online connections and comments do not derogate from the independence of the judiciary or impair public confidence in the judge's integrity and impartiality (cf. Opinion 01-14 [justice court website may not link to a site maintained by a Megan's Law advocacy group]); nor invite impermissible ex parte discussions or suggest that the judge's judicial decisions may be impermissibly influenced by public reactions (see Opinion 20-58); nor create an impression that the judge is engaging in impermissible political activity (see Opinion 15-121 [even during the applicable window period, "it would not be appropriate for a judicial candidate to 'like' or 'friend' any political Facebook page from his/her own personal Facebook account"] [emphasis added]).

         However, we have also recognized that interaction with others on social media platforms "is unlikely problematic when a judge posts about personal hobbies, social events, or milestones with friends and family, and a wide variety of other such ordinary, non-political topics unrelated to his/her judicial office" (see Opinion 20-58).

         Thus, we conclude a judge may maintain personal social media accounts, including on dating websites, subject to generally applicable limitations on judicial speech and conduct. Ultimately, "the question is not whether a judge may use a social network, but rather how he/she does so" (Opinion 10-138 [judge may maintain an internet blog]).

         We again "urge judges to assume that their online communications are not private and tailor them accordingly" (Opinion 18-74 [noting that, while online forums "may offer users different levels of privacy controls, ... any online communications may potentially be forwarded, captured in a screen-shot, or printed out"]).³

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¹ We do not comment on any possible reporting obligations under Part 40 (see https://ww2.nycourts.gov/IP/ethics/index.shtml for forms and instructions).

2 Where Instagram has “a greater focus on mobile sharing of photos and videos” (Opinion 21-170), LinkedIn focuses more on professional networking and career development.

³ The Commission on Judicial Conduct has noted a “continuing influx of complaints” about judges’ use of social media (2022 Ann Rep of NY Commn on Jud Conduct at 18), and urged judges to “[t]hink carefully before posting” as “a moment of reflection and restraint now may avert aggravation and disciplinary consequences later” (id. at 20).