Opinion 09-209

December 3, 2009

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

Please Note: Cf. also Opinion 18-65, which suggests that certain routine promotional activities “might best be analyzed as marketing techniques or incentives offered to all similarly situated [customers].”

Digest:         A board of judges may accept gift certificates awarded pursuant to a restaurant promotion as long as no member judge has presided or is likely to be presiding over a matter in which the restaurant was or is a party and may award them as prizes to member judges for participating in a sporting event held during the board’s annual retreat. A judge who accepts a certificate as a prize from the board must follow the applicable reporting requirements.

Rules:          22 NYCRR 100.2; 100.2(A); 100.2(C); 100.4(D)(5); 100.4(D)(5)(f)-(h); 100.4(H)(2); Opinions 09-134; 06-141; 06-67; 02-14.

Opinion:

         A board of judges held its annual dinner at a chain restaurant that gives gift certificates for future purchases at the restaurant to parties that spend more than a set amount of money for a meal. Because the cost of the board of judges’ dinner exceeded the specified amount, the restaurant gave the board officers gift certificates in accordance with the terms of the promotion. The inquiring judge, who is an officer on the board of judges, asks whether the board may accept the gift certificates, and, if yes, whether the board may award the gift certificates as prizes to individual judges who participate in a sporting event at the board of judges’ annual retreat.

         A judge must avoid impropriety and the appearance of impropriety in all the judge’s activities (see 22 NYCRR 100.2) and must act in a manner that promotes public confidence in the integrity and impartiality of the judiciary (see 22 NYCRR 100.2[A]). Therefore, a judge shall not lend the prestige of judicial office to advance the private interests of the judge or others (see 22 NYCRR 100.2[C]) and may accept a gift, subject to certain restrictions (see 22 NYCRR 100.4[D][5]). In addition to the specific categories of permissible gifts, a catch-all provision in the Rules Governing Judicial Conduct permits a judge to accept (22 NYCRR 100.4[D][5][h]):

. . . any other gift, bequest, favor or loan, only if: the donor is not a party or other person who has come or is likely to come or whose interests have come or are likely to come before the judge; and if its value exceeds $150.00, the judge reports it in the same manner as the judge reports compensation in Section 100.4(H).

         The Committee previously has advised that a judge’s organization may not solicit money or gifts in kind to support a judge’s meeting (see Opinion 06-67). However, in the present inquiry, the board of judges earned the restaurant gift certificates in accordance with the restaurant’s promotion, in the same manner that any member of the public might. Consequently, there is no risk of any perception that the board of judge’s received the gift certificates because of the judicial status of the board’s members . Nor has the inquiring judge indicated that the restaurant chain is a party that has come, or is likely to come, or whose interests have come or are likely to come before a member of the board. Therefore, it is the Committee’s view that the board of judges may accept the gift certificates (cf. 22 NYCRR 100.4[D][5][f] [permitting judges to accept loans made by a lending institution in its regular course of business “on the same terms generally available to persons who are not judges”]; 100.4[D][5][g] [permitting judges to accept scholarships or fellowships “awarded on the same terms and based on the same criteria applied to other applicants”]; Opinions 09-134 [judge may participate in a foreclosure sale “on the same basis as any other private citizen”]; 06-141 [judge who is a member of a musician’s union may accept a “reasonable” pay scale set by the union “on the same terms as other union members”]).

         The board of judges also may award the gift certificates to member judges as prizes for participating in a sporting event held during the board of judges annual retreat, as long as the board does not otherwise promote the restaurant (see 22 NYCRR 100.2[C]).

         While the Rules Governing Judicial Conduct require a judge who receives a gift valued at more than $150 to report the gift in the same manner as the judge reports compensation pursuant to §100.4(H), the board of judges’ officer who receives the gift certificates on the board of judges behalf need not make such a report (see 22 NYCRR 100.4[D][5][h]). Rather, it is the judge who receives a gift certificate as a prize who must do so (see 22 NYCRR 100.4[D][5][h]; 100.4[H][2]; Opinion 02-14 [a judge may accept the gift of a raffle ticket from a friend of long-standing, also may keep the prize he/she won in the raffle, but must report the prize if the value exceeds $150]).