Opinion No. 97-12

July 9, 1997

TOPIC: Compensation for avocational activities.

DIGEST: A judge may receive an honorarium for playing a violin in an orchestra or solo as part of a wedding ceremony.

REFERENCES: Illinois Supreme Court Rules 62A and 65A, Committee Comments to Rule 65; Illinois Supreme Court Rule 66A; Shaman/Lubet/Alfini, Judicial Conduct and Ethics, 2nd ed., 1995, Sec. 8.10; and Illinois Judicial Ethics Committee Opinion Nos. 95-18, 95-23, 96-11 and 96-26.

FACTS

The judge's avocation is the violin and often fills in with the local symphony orchestra and is often asked to play the violin during wedding ceremonies. None of this interferes with the judge's judicial duties. Playing in the local symphony orchestra is a great way to practice and increase the judge's talents with the violin. The judge may be required to accept compensation because of union contract requirements. Similarly, his or her fellow musicians are upset when the judge declines compensation when playing at weddings.

QUESTIONS

1. May a judge engage in such avocational activities?

2. May the judge accept an "honorarium" in either of these situations rather than considering them to be "compensation"?

OPINIONS

Question 1

Illinois Supreme Court Rule 62A states: "A judge should...conduct himself or herself at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary." Illinois Supreme Court Rule 65A allows a judge to "...engage in the arts, sports and other social and recreational activities..." However, any such activity should not interfere with the judge's duties. The Commentary to Rule 65 states that "Complete separation of a judge from extrajudicial activities is neither possible nor wise; he should not become isolated from the society in which he lives." Since the judge's musical endeavors will not interfere with the judge's official functions, such endeavors are permitted by the Code of Judicial Conduct.

While Rule 65A allows a judge to "engage in the arts", it is silent regarding payment to a judge for such artistic endeavors. It would be inappropriate, however, for the judge to perform the ceremony if the judge were receiving an honorarium for his or her musical abilities.

Question 2

Illinois Supreme Court Rule 66 states: "A judge may not receive compensation for the law-related and extrajudicial activities permitted by this Code. However, he or she may receive an honorarium and reimbursement of expenses if the source of such payments does not give the appearance of influencing the judge in his or her judicial duties or otherwise give the appearance of impropriety. For the purposes of this canon 'compensation' is a sum of money or other thing of value paid by a person or entity to a judge for services provided or performed."

'Honorarium' is defined in Rule 66A: "An honorarium should not exceed a reasonable amount nor should it exceed what a person who is not a judge would receive for the same activity. The total honorarium received by a judge within a six-month period shall not exceed $5,000.00."

(It is apparently irrelevant whether the judge donates the compensation/honorarium to a charity; charity is not an element of the Rules.) The language of Rule 66 makes it extremely difficult to make a clear distinction between an "honorarium" and "compensation". Thus, under Rule 66 a judge may not receive compensation but may receive an honorarium.

Under the federal system, honoraria are permitted under the Code of Judicial Conduct, but are expressly prohibited to federal judges by the Ethics Reform Act of 1989. Shaman/Lubet/Alfini, Judicial Conduct and Ethics, 2nd ed., 1995, Sec. 8.10. However, under both the Code and the Act, outside earned income is allowed up to a cap currently set at $18,656. Further, royalties on publications are considered "investment income" not "earned income".

In IJEC Opinion No. 95-18, the Committee concluded that a judge may serve as a coach and a "judge" at a speech and debate contest and receive an "honorarium". Similarly, in IJEC Opinion No. 96-11, Illinois Supreme Court Rule 66 was interpreted to allow a judge to teach martial arts and receive an honorarium or tuition waiver.

It would be inconsistent to interpret the Rules to hold that a judge (IJEC Opinion No. 95-18) could coach a debate or speech team or (IJEC Opinion No. 95-23) act in a civic organization play or (IJEC Opinion No. 96-11) teach martial arts or (IJEC Opinion No. 96-26) act in plays of a local civic group but that he could not play a violin in a local orchestra or at weddings and not be given an honorarium for that activity.

Therefore, it is concluded that a judge may play his or her violin at these events and be given an honorarium for this activity not to exceed $5,000.00 in a six month period.