Acceptance and Use of Amtrak Rail Pass

July 21, 1995

CJE Opinion No. 95-7

You have requested advice from this Committee on whether you may accept and use a "Special Rail Travel Privilege Card" issued by the board of directors of the National Railroad Passenger Corporation, commonly referred to as "Amtrak." Prior to your appointment as a judge, you had served as a member of that board of directors. This Rail Travel Privilege Card ("pass") would provide you and your wife with "free and unlimited personal rail travel on any train within the Amtrak system with the exception of Metroline Service and Auto Train," including sleeping car accommodations. All former board members are issued such passes.

This Amtrak pass for you and your wife is in the nature of deferred compensation in recognition of your past services as a director. The relevant provision of the Code of Judicial Conduct would appear to be Canon 5(C)(1) which provides:

"A judge should refrain from financial and business dealings that tend to reflect adversely on his impartiality, interfere with the proper performance of his judicial position, or involve him in frequent transactions with lawyers or persons likely to come before the court on which he serves."

It would not appear that your use of the pass would "interfere with the proper performance of [your] judicial position." Moreover, we infer from your request that Amtrak's interests have not up to now come before you. We are not in a position to know whether they are "likely to come before [you]." Given the jurisdiction of your Court, it is certainly possible that Amtrak's interests might come before you. However, "possibly" is not synonymous with "likely." Accordingly, we advise you to review the dockets of your court. If there appear to be no, or very infrequent, cases involving Amtrak, Canon 5(C)(1) would not be violated by your receipt of the pass. However, you must report the value of the pass on your Annual Report of Extra-Judicial Income which all Massachusetts judges are required by Canon 6 to file with the Supreme Judicial Court. You should also recuse yourself (as you indicate you would) in the unlikely event that a matter involving Amtrak were to be assigned to you. However, if such matters were more than sporadic, recusal would not suffice and your acceptance and use of the pass would be prohibited. Thus, it will be necessary that you regularly review your dockets to determine if you may properly continue to accept the pass.

Finally, we note that your obligation to report under Canon 6 is separate and distinct from any obligation to report to the State Ethics Commission under Chapter 268B of the General Laws.