Opinion 96-11

March 12, 1996

Digest:         1. A full-time judge may continue ownership with his/her spouse in a small rental property inherited from family.

2. A full-time judge may not serve as a paid member of a Board of Trustees of a savings bank.

Rules:          22 NYCRR 100.4(D); Opinions 92-12; 90-101; 89-108

Opinion:

         The inquiring judge seeks an opinion as to whether or not he/she may continue with the judge's spouse as tenants by the entirety, of a small rental property consisting of approximately 1,100 square feet with a street-level commercial area formerly operated as a store, and four one-bedroom, residential apartments. The property was inherited from the judge's father and the inquiring judge indicates that the judge's spouse arranges for repairs and collection of rents.

The inquiring judge asks whether the facts presented are consistent with Opinions 89-108, 90-101, and 92-12.

         Although the Rules governing Judicial Conduct have been amended effective January 1, 1996, the amended language, currently contained in section 100.4(D)(2) and (3), does not appear to preclude such ownership or activity. Section 100.4(D)(2) states that "a judge subject to the requirements of this part, may hold and manage investments of the judge and members of the judge's family, including real estate" and, part (3)(b) states, "a judge subject to the requirements of this part, may manage and participate in a business entity engaged solely in investment of the financial resources of the judge or members of the judge's family". The language of the new rules appears consistent with this Committee's interpretation of the former language and those opinions are contained in the citations enumerated above. Thus, the judge's continued ownership and activity as described in the inquiry, is not prohibited.

         The second inquiry seeks this Committee's opinion as to whether or not the inquiring judge may serve as a paid member of the Board of Trustees of a New York State chartered savings bank. The judge seeks an interpretation of former section 100.5(c)(2), which is now essentially covered by sections 100.4(D)(1)(b)-(c) and 100.4(D)(3). Section 100.4(D)(1)(b)-(c) prohibits a judge from being involved in "financial and business dealings" with "any business, organization or activity that ordinarily will come before the judge" or "with other persons likely to come before the court on which the judge serves." Section 100.4(D)(3) also precludes a full time judge from serving “as an officer, director, manager, general partner, advisor, employee or other active participant of any business entity” (emphasis added) with certain non-relevant exceptions. Therefore, service as a paid member of the Board of Trustees of a savings bank is a prohibited activity.