Opinion 22-121

September 8, 2022

Please Note: See AO-347, which abolished Section 100.4(H)(2) on approval by the Court of Appeals.

Digest:         A full-time judge must report net rental income in excess of $150 received in the most recent calendar year to the clerk of the court under Section 100.4(H)(2), but it would be unduly burdensome to require judges to amend past Section 100.4(H)(2) reports.

Rules:          22 NYCRR Part 40; 22 NYCRR Part 100, Preamble; 100.3(F); 100.2; 100.2(A); 100.4(H)(2); 100.4(I); Opinions 22-92; 22-63/22-74(A)/22-87; 22-74(B).

Opinion:

         In multiple years, the inquiring full-time judge has received rental income over $1,000 and has consistently reported this income to the Unified Court System’s Ethics Commission under 22 NYCRR Part 40 (see ww2.nycourts.gov/IP/ethics).¹ This year, the judge became aware of the additional requirement to report net rental income in excess of $150 to the clerk of the court under Section 100.4(H)(2), as compensation received for an extra-judicial activity (see Opinion 22-63/22-74[A]/22-87; 22 NYCRR 100.4[H][2]). Thus, for the calendar year 2021, the judge reported this same rental income to both the clerk of the court and the UCS Ethics Commission. The judge now asks if it is necessary to retroactively report rental income received in prior years to the clerk of the court under Section 100.4(H)(2). We understand that as the judge has been sitting for long time, many records necessary to amend any past Section 100.4(H)(2) filings no longer exist.

         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]). Under the Rules Governing Judicial Conduct, “[d]isclosure of a judge’s income, debts, investments or other assets is required only to the extent provided in this section and in section 100.3(F), or as required by Part 40 of the Rules of the Chief Judge (22 NYCRR Part 40), or as otherwise required by law” (22 NYCRR 100.4[I]). As relevant here, Section 100.4(H)(2) states:

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 other office designated by law.

         As we recently opined, a “full-time judge who owns and rents real property must report this rental income under Section 100.4(H)(2) if the judge nets more than $150 in a calendar year from it” (Opinion 22-63/22-74[A]/22-87). Likewise, a full-time judge who rents out real property through Airbnb must report income of more than $150 in a calendar year under Section 100.4(H)(2) (see Opinion 22-92).

         The novel question here is whether full-time judges must retroactively amend any previously filed Section 100.4(H)(2) reports for years prior to the most recent calendar year to include net rental income over $150 received in those years (here, 2020 or earlier).

         The preamble to Part 100 states, “The rules governing judicial conduct are rules of reason.” In our view, it would be unreasonably burdensome for the inquiring judge to amend any previous reports made to the clerk of the court, beyond the most recent prior calendar year, especially since the income in question was already disclosed to the UCS Ethics Commission under Part 40.

         Going forward, the judge should continue to report compensation over $150 received for extra-judicial activities to the clerk of the court as required by Section 100.4(H)(2) and our opinions (see e.g. Opinions 22-92; 22-63/22-74[A]/22-87; 22-74[B]; 22 NYCRR 100.4[H][2]), even if some or all of the income will also be reported to the UCS Ethics Commission.

         Again, we “do not comment on a judge’s obligations under the financial reporting rules of 22 NYCRR part 40, as they are not part of the Rules Governing Judicial Conduct. Questions about interpreting a judge’s financial disclosure obligations under Part 40 should be addressed to the UCS Ethics Commission” (Opinion 22-63/22-74[A]/22-87 fn 1).

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¹ Question 13 on the Part 40 financial disclosure statement form reads, “List below the nature and amount of any income in EXCESS of $1,000 from EACH SOURCE” for the prior taxable year, including income from “real estate rents” (https://ww2.nycourts.gov/IP/ethics/FDform.shtml).