June 21, 2018
Digest: Where a town justice’s caseload includes a variety of cases involving the casino in his/her town, the judge
(1) may accept routine perks such as “free play and food comps” from the local casino, provided the judge knows such perks are offered to all similarly situated patrons and the casino is not presently an active participant in a hearing or trial before the judge; but
(2) must not accept the local casino’s invitation to attend lavish, expensive, or exclusive events.
Rules: 22 NYCRR 100.2; 100.2(A); 100.2(C); 100.4(A)(1)-(3); 100.4(D)(1)(c); 100.4(D)(5)(a)-(h); 100.4(H)(2); Opinions 17-106; 16-158; 15-187; 13-135; 12-142; 09-209; 09-186; 06-172.
A town justice who sometimes gambles at legal casinos in New York and elsewhere asks if he/she may accept certain offers from the local casino in his/her town. They include (1) perks such as “‘free play’ and food comps”; (2) an invitation to attend a “special reception” at the casino; and (3) “an exclusive VIP weekend” featuring a complimentary two-night stay in a “luxurious suite,” as well as champagne, hand-rolled cigars, and spa samples. He/she notes the perks and special reception are similar to ones offered by other casinos, based on the judge’s status as a casino patron and/or the judge’s “use of a player’s club card” at the casino.1 However, criminal matters arising from conduct at this casino (e.g., larceny, disorderly conduct, and harassment) come before the judge for arraignment and disposition.
A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must always promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). Thus, a judge must conduct all of his/her extra-judicial activities so 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]-). A judge must not “engage in financial and business dealings that: ... [c] involve the judge in frequent transactions or continuing business relationships with those ... persons likely to come before the court on which the judge serves” (22 NYCRR 100.4[D][c]). A judge may accept certain enumerated gifts (see 22 NYCRR 100.4[D][a]-[g]). A catch-all provision also permits a judge to accept “any other gift ... 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” (22 NYCRR 100.4[D][h]), as long as the gift does not create an appearance of impropriety or otherwise violate the Rules and, in addition, is subject to certain reporting requirements in the case of a full-time judge (see 22 NYCRR 100.4[H]).
Judges may participate in lawful gambling activities (see e.g. Opinions 16-158; 15-187; 12-142). Further, though “judges must not improperly invoke their judicial title or status in a business transaction” (Opinion 13-135), they may ordinarily accept the same routine perks and accommodations as other similarly situated customers (see e.g. Opinions 09-209 [a board of judges may accept gift certificates awarded pursuant to a restaurant promotion “in the same manner that any member of the public might,” 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]; 13-135 [a judge whose room reservation was dishonored by a hotel and who accepted the hotel’s routine offer to re-book him/her elsewhere at the hotel’s expense, is not ethically obligated to take any further action]; cf. Opinion 09-186 [a judge may apply to and, if accepted, reside for one month in an artist colony that offers free room and board to all participants]).
Initially, we see no impropriety if the judge accepts such routine perks and invitations from other casinos, whose interests are unlikely to come before him/her. Indeed, such perks might best be analyzed as marketing techniques or incentives offered to all similarly situated casino patrons, in an effort to build customer loyalty and encourage repeat business.2
As for the casino located in the judge’s town, however, we see an appearance of impropriety if the judge accepts anything more than the most routine perks. Here, we believe the judge may accept modest and reasonable perks such as “‘free play’ and food comps,” if the judge knows similarly situated non-judge patrons are offered such perks (cf. Opinions 06-172 [distinguishing “ordinary” social hospitality from “unusually expensive or lavish” perks]; 17-106, 17-106 n 2 [distinguishing between a “modest and reasonable” donation and an “unusually generous” one]), and as long as the casino is not “presently an active participant in a trial or hearing before him/her” (Opinion 06-172).
By contrast, this judge may not accept an invitation to a “special reception” or “exclusive VIP weekend” at the local casino in his/her town. The judge’s attendance at such relatively lavish, expensive, and/or exclusive events could create an appearance a casino is attempting to curry favor with a judge who will preside over a wide variety of cases involving its interests and might cause the public to question the judge’s impartiality in such matters (cf. 22 NYCRR 100.2[C] [a judge must not “convey or permit others to convey the impression that they are in a special position to influence the judge”]).
1 The offers appear in printed brochures mailed to the judge via a post office box, with no reference to the judge’s judicial title or position.
2 Opinion 09-209 apparently analyzed a restaurant’s promotional offer as a gift under the catch-all provision, including the reporting requirement if its value exceeded $150. By contrast, Opinion 13-135 found that a hotel’s routine offer to make right its “inadvertent over booking error” by re-booking the judge elsewhere at the hotel’s expense “does not appear to be a ‘gift’ or ‘favor’ to the judge within the meaning of the Rules.”