May a judge receive minimum wages for a veterinary internship required by an educational program?

Plain-English summary

A judge enrolled in a veterinary technician program needed supervised clinic work. The clinic required employee status and minimum pay for insurance coverage, though the judge had sought to volunteer and returned the pay to the preceptor. [Source: Opinion 19-01, p. 1]

The committee treated the internship as educational activity governed by Rule 21-312, rather than business employment prohibited by Rule 21-311(B). It said the minimal compensation was reasonable and the Code did not prohibit continuing the activity. [Source: Opinion 19-01, pp. 1–2]

The committee said the judge must report the payment under Rule 21-315(D). It declined to answer whether the judge should self-report to the Judicial Standards Commission. [Source: Opinion 19-01, p. 2]

In practice

The opinion rests on the clinic role being a required educational internship that could not be done as a volunteer. It separately treats payment reporting as required. [Source: Opinion 19-01, pp. 1–2]

Common questions

Q: Did employee status at the clinic bar the internship?

A: No. The committee applied the educational activity rule to the stated arrangement. [Source: Opinion 19-01, p. 2]

Q: Was the minimum payment reportable?

A: Yes. The committee cited Rule 21-315(D) and said the judge must report it. [Source: Opinion 19-01, p. 2]

Background and rules framework

The opinion discusses New Mexico Code of Judicial Conduct Rules 21-301, 21-312, 21-311(B), and 21-315(D). [Source: Opinion 19-01, pp. 1–2]

Citations and references

New Mexico Code of Judicial Conduct:

• Rules 21-301, 21-312, 21-311(B), 21-315(D). Source: Opinion 19-01.

See also

• NM Judicial Ethics Op. 21-05: Drug Expert Committee Membership

Source

• Landing page: New Mexico judicial advisory opinions
• Original PDF: Advisory Opinion 19-01

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.

A COURT LAY Upp amy,
AFE, NEV NExicg

SUPREME Coun)»:

Advisory Committee on the Code of Judicial Conduct

Hon. James J. Wechsler, Co-Chair (ret.) This is an advisory opinion by the New Mexico Advisory Hon. Julie J. Vargas, Co-Chair Committee on the Code of Judicial Conduct, Advisory Paul L. Biderman, Esq. opinions are responses to inquiries from judges seeking Prof. Robert L. Schwartz guidance on judicial ethics questions. They are not Hon. Freddie J. Romero issued, approved, or endorsed by the New Mexico Hon. Sandra W. Engel Supreme Court; nor are they binding.

March 13, 2019

Re: AO 19-01

As an extrajudicial activity after court hours, you have enrolled in an online veterinary technician program offered by a New Mexico college. The program requires students to affiliate with a veterinary clinic through a Preceptor, a veterinarian who can supervise a student in practice areas. You have affiliated with a Preceptor. You sought to do so as a volunteer, but your Preceptor, like all available Preceptors, requires that you be paid as an employee so that your clinical practice is covered by malpractice insurance. You requested and receive minimum compensation, and you return it to the Preceptor. You have asked the Advisory Committee on the Code of Judicial Conduct whether the Code permits you to continue your activity with the Preceptor.

The Code of Judicial Conduct permits a judge to engage in extrajudicial activities subject to provisions that are not applicable to your request. Rule 21-301 NMRA. Rule 21-312 NMRA permits a judge to “accept reasonable compensation for extrajudicial activities permitted” by the Code, provided that such acceptance does not raise issues concerning the judge’s independence, integrity, or impartiality. The commentary to Rule 21-312 states: “A judge is permitted to accept honoraria, stipends, fees, wages, salaries, royalties, or other compensation for speaking, teaching, writing, and other extrajudicial activities, provided the compensation is reasonable and commensurate with then task performed.” Rule 21-312, cmnt 1. Rule 21-312 and the commentary would permit you to receive reasonable compensation for your clinic activity.

The Code also specifically addresses a judge's extrajudicial employment. Rule 21-311(B) NMRA provides, with exceptions not applicable to your request, that a “Judge shall not serve as an officer, director, manager, general partner, advisor, or employee of a business entity[.]” Your Preceptor’s clinic is a “business entity.” On its face, therefore, Rule 21-311(B) would preclude you from being an “employee” of your Preceptor’s clinic.

The Committee believes, however, that Rule 21-3 12, rather than Rule 21-311, applies to your inquiry. The prohibitions of Rule 21-311 address business activity. They appear to be designed to preclude a judge from engaging in business activity as an extrajudicial activity that could impair the judge’s ability to act in a manner consistent with the Code. The nature of your extrajudicial activity is not business, however; it is educational. You are working at the clinic as an internship to satisfy a requirement of your educational program. And you cannot satisfy this requirement on a voluntary basis. The Committee believes, therefore, that the proper rule to evaluate your request is Rule 21-312, which allows you to receive a stipend for extrajudicial activities that is reasonable and commensurate with the tasks performed. There is no question that the minimal amount that you receive is reasonable compensation for your activities.

The Committee thus believes that the Code does not prohibit you from continuing your activity with your Preceptor. However, you must report the payment that you receive under Rule 21-315(D) NMRA. See Rule 21-315 (D) (requiring annual reporting of the “date, place, and nature of any activity for which the judge received extrajudicial compensation”).

You have also asked the Committee whether you should self-report your situation to the Judicial Standards Commission. The Committee does not express an opinion in that regard, leaving the decision to your discretion. fF On

James J. Wechsler
Co-chair

Judge Julie J. Vargas did not participate in this opinion.