Opinion 22-92

June 30, 2022

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

Digest:    (1) A full-time judge who is a mortgagee need not report mortgage interest income to the clerk of the court under Section 100.4(H)(2).

(2) A full-time judge who rents real property through Airbnb must report rental income to the clerk of the court under Section 100.4(H)(2) if the judge nets more than $150 in a calendar year from it.

Rules:     22 NYCRR 100.2; 100.2(A); 100.4(H)(1); 100.4(H)(2); Opinions 22-63/22-74(A)/22-87; 21-98; 14-67.

Opinion:

         The inquiring full-time judge is both a mortgagee (i.e. the lender/holder of a mortgage) and a property owner who rents out certain real property through Airbnb. The judge asks if it is necessary to report the mortgage interest and rental income to the clerk of the court as "compensation" for an extra-judicial activity under Section 100.4(H)(2).

         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]). A full-time judge 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.

The language of Section 100.4(H)(2), by its terms, applies only when a full-time judge receives over $150 in compensation for a permissible extra-judicial "activity" (22 NYCRR 100.4[H][2]). "Compensation" may include payment, reimbursement, earnings, fee, remuneration, salary, wages, stipend, honorarium, revenue, profits and income (see Opinion 21-98).

         In Opinion 14-67, we concluded that receipt of interest income does not constitute compensation for extra-judicial activities undertaken by the judge within the meaning of the rule. Accordingly, the judge is not required to file a report under Section 100.4(H)(2) with respect to interest income, even when that income is paid pursuant to a mortgage instrument previously issued by the judge. We note there could potentially be reporting obligations under Part 40, which we cannot address.¹

         Conversely, rental income received from renting out real property via Airbnb is compensation for an extra-judicial activity and is therefore subject to reporting under Section 100.4(H)(2) if the judge nets more than $150 in a calendar year from it (see Opinion 22-63/22-74[A]/22-87).

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¹ The Unified Court System's Ethics Commission (tel. 1-212-428-2899) is the agency with the authority to interpret Part 40.