May a judge receive pay for training an adjoining county's teen court program on a weekday afternoon?

Plain-English summary

A judge who had developed a teen court in the judge's own county was asked to help establish and train people for a similar program in an adjoining county. The work would occupy Thursday afternoons and pay $400 weekly, including travel and supplies. The judge said the court had no regular Thursday afternoon docket and the judicial schedule could be rearranged. [Source: Opinion 13-06, pp. 1–2]

The committee focused on whether the paid work would interfere with judicial duties under Rules 21-301(A) and 21-312(B). It accepted the proposal on the stated assumption that the judge could perform all required duties during the rearranged court schedule. It said it would reach a different conclusion if the judge could not fulfill those duties or had to be present at court on Thursday afternoons. [Source: Opinion 13-06, p. 2]

The committee also applied Rule 21-312(A)'s reasonable-compensation standard. It found no supplied facts suggesting that the payment would undermine judicial independence, integrity or impartiality, but did not resolve whether the amount itself was reasonable. It suggested comparing it with pay for similar work in the community. [Source: Opinion 13-06, p. 3]

In practice

The opinion's approval depends on the court's actual scheduling needs and completion of judicial duties. It does not declare $400 per week reasonable as a general rate; that issue remained for comparison with similar work. [Source: Opinion 13-06, pp. 2–3]

Common questions

Q: Did the committee permit the judge's proposed Thursday afternoon work?

A: Yes, on the stated schedule and ability to perform all court duties. It said required court presence at that time would change its conclusion. [Source: Opinion 13-06, p. 2]

Q: Did payment itself bar the judge from helping the adjoining county?

A: No. The committee applied Rules 21-312(A) and (B) to paid work and found no supplied fact showing an independence or impartiality problem. [Source: Opinion 13-06, pp. 2–3]

Q: Did the committee determine that $400 weekly was reasonable compensation?

A: No. It suggested assessing the amount against compensation for similar work in the community. [Source: Opinion 13-06, p. 3]

Background and rules framework

The committee applied New Mexico Code of Judicial Conduct Rules 21-301(A), 21-312(B), and 21-312(A). It accepted the requester's account that other Rule 21-301 concerns did not arise because the program was outside the court's jurisdiction and would use no court resources. [Source: Opinion 13-06, pp. 1–3]

Citations and references

New Mexico Code of Judicial Conduct:

• Rules 21-301, 21-312(A), and 21-312(B). Source: Opinion 13-06.

See also

• NM Judicial Ethics Op. 13-05: School Truancy Program
• NM Judicial Ethics Op. 13-02: Electric Cooperative Trustee

Source

• Landing page: New Mexico judicial advisory opinions
• Original PDF: Advisory Opinion 13-06

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

Best-effort transcription from a scanned PDF. Minor errors may remain; the linked PDF is authoritative.

KEUCHIVED

ee SUPREME COURT
LAW LIBRARY

Advisory Committee on the Code of Judicial Conduct

Hon. James J. Wechsler, Chair
Or NINTEXADARX

Pon KeveXX RW XK
Paul L. Biderman, Esq.

Prof. Robert L. Schwartz
Hon. Freddie Romero

September 24, 2013

Re: Judicial Advisory Opinion No. 13-06

You have inquired of the Advisory Committee on the Code of Judicial Conduct whether the Code of Judicial Conduct permits you to assist in establishing a teen court as a juvenile alternative sentence program in a county outside the jurisdiction of your municipality. You have developed and implemented such a program in your county, and the adjoining county has asked you to structure a similar program and train facilitators and juveniles in the operation of the program. The program is funded through a Department of Children, Youth & Families Department Juvenile Justice Grant, from which you would be paid $400.00 weekly, which includes your travel expenses and program supplies. You would need to work in the other county one afternoon each week from noon to 5:30 p.m.

Generally, a judge may engage in extrajudicial activity that is not expressly prohibited by the Code of Judicial Conduct. Rule 21-301 NMRA. A judge shall not, however,

A, Participate in activities that will interfere with the proper performance of the judge’s judicial duties;

B. Participate in activities that will lead to frequent disqualification of the judge;

C. Participate in activities that would appear to a reasonable person to undermine the judge’s independence, integrity, or impartiality;

D. Engage in conduct that would appear to a reasonable person to be coercive; or

E. Make use of court premises, staff, stationery, equipment, or other resources, except for incidental use for activities that concern the law, the legal system, or the administration of justice.

Id.

You have provided the Committee with information that indicates that paragraphs B through E are not applicable to your proposed activity. You do not perceive any conflict with your judicial duties because referrals to the program would be made by the courts and officials of the adjoining county, the program is not related in any way to any agency within your jurisdiction, and, in any event, your court does not have juvenile jurisdiction. You would not use any court resources in connection with the program.

With respect to Rule 21-301, therefore, the Committee focuses its discussion on paragraph A, whether your participation in the program will interfere with your proper performance of your judicial duties. Because you will be compensated for your activity, Rule 21-312(B) NMRA is also relevant to this discussion. It provides:

A judge shall not hold any other paid position, judicial or otherwise, that conflicts with the hours and duties the judge is required to perform for every judicial position. A judge shall devote the number of hours that is required by any judicial position held. In no event shall other paid employment or compensable activity hours be performed simultaneously.

You have informed the Committee that you would work on this teen court program by traveling to the adjoining county Thursday afternoons from noon to 5:30 p.m. You chose that time because you regularly do not have cases on your docket at that time. You state that the program would therefore not interfere with your responsibilities to your court and that you would restructure your work schedule so that you would nevertheless be working at your court for thirty-six and one- half hours each week.

The Committee believes that your proposed activity is consistent with Rule 21-301(A). We reach this conclusion based on your information that your court does not regularly schedule a docket on Thursday afternoons and that you can rearrange your schedule at your court to properly perform all your judicial duties during the hours that you are present at the court. We would reach a different conclusion if either you could not properly fulfill your responsibilities during the time you will be present at the court or your presence is required on Thursday afternoon during business hours.

We analyze Rule 21-312(B) on the same basis. The question of whether your participation in the program “conflicts with the hours and duties” you are required to perform for your judicial position depends upon the requirements of your position. If, as you state, you can properly perform all the duties of your position under your rearranged schedule, which requires your presence at the court for thirty-six and one-half hours each week, the Committee does not believe that your participation conflicts with the intent of Rule 21-312(B).

The Committee lastly notes that Rule 21-312(A) NMRA permits a judge to receive reasonable compensation for allowed extrajudicial activities unless it would appear to a reasonable person that such compensation would “undermine the judge’s independence, integrity, or impartiality.” You have not provided information that would lead the Committee to believe that your receiving compensation would undermine your independence, integrity, or impartiality. As to whether the compensation is reasonable, the Committee suggests that you ascertain whether it is comparable to what others in your community would receive for similar work.

Very truly yours,

Wechsler
Chair

cc: Paul L. Biderman, Esq.
Professor Robert L. Schwartz
Hon. Freddie J. Romero