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The following is an archived advisory opinion of the Committee on Judicial Ethics (CJE) from the time period of 1989 through 2014, and the Code of Judicial Conduct that was in effect from October 1, 2003 to December 31, 2015. Archived advisory opinions also include the Code that was in effect through September 30, 2003. The Supreme Judicial Court adopted a new Massachusetts Code of Judicial Conduct, effective on January 1, 2016. A judge should not rely on any pre- 2016 CJE Advisory Opinion without contacting Supreme Judicial Court Senior Attorney Barbara F. Berenson, counsel to the Committee on Judicial Ethics, at Barbara.Berenson@jud.state.ma.us or 617- 557-1048.
You have asked whether there would be an ethical conflict if, during approved vacation time, on weekends, or outside of "normal working hours," you engage in activity as a softball umpire for a fee.
As an avocation you are a registered softball umpire. You have been certified since 2004 to umpire games at all levels of competition including, but not limited to, recreational local games involving children or adults, middle school and high school games, college games, and national championships. You are registered with the Amateur Softball Association, the National Softball Association, the Protect Our Nation's Youth (PONY) Baseball and Softball, the Massachusetts Interscholastic Athletic Association - National Federation of State High School Associations, and the National Collegiate Athletic Association. None of these is a professional sports organization; they are either volunteer charitable or scholastic organizations. Umpires are independent contractors at all levels of these organizations. Game fees are established by the level of play and local rules, and are paid by local organizations, local municipalities, or national organization offices.
Some tournaments, including the national championship series, may last as long as a week, with games as early as 7:30 a.m. and as late as 10:00 p.m. Umpires are subject to codes of conduct depending on the organization. If a game is televised or broadcast, the umpire's name and town may be listed or announced, but no occupational affiliation is mentioned.
Canon 2 of the Code of Judicial Conduct requires that a judge avoid impropriety and the appearance of impropriety in all of the judge's activities. Sections 4 A and 4 B require that a judge conduct his or her extrajudicial activities so as to minimize the risk of conflict with judicial obligations. A judge's extrajudicial activities must be conducted so that they do not cast reasonable doubt on the judge's capacity to act impartially as a judge or interfere with the proper performance of judicial duties. In commentary, the Code acknowledges that it is neither possible nor wise for a judge to be completely separated from extrajudicial activities, and that, in the interest of establishing and maintaining a healthy and balanced judiciary, such activities should be supported so long as the activity or the judge's behavior during the activity do not reflect negatively on the judge's capacity to act impartially as a judge. Section 4 H allows reasonable compensation and reimbursement for nonjudicial activities, subject to certain reporting requirements.
This committee addressed the general considerations applicable to extrajudicial activity in CJE Opinion 2005-10, and there stated: "As in Opinion 99-14, the committee believes that your [extrajudicial activity], as you describe it, would not detract from the dignity of your judicial office. Nor would it interfere with your judicial duties if your part-time work were limited to weekends." The reference to weekends in that opinion was not intended to be limiting, but was in response to the specific request made to the committee.
In your situation, consistent with CJE Opinion 2005-10, the committee believes that umpiring softball games, as you describe that activity, would not detract from the dignity of your judicial office. Nor would it interfere with your judicial duties if it were limited to weekends, outside normal working hours, and during approved vacation time. Therefore, subject to that limitation, your acting as an umpire would not be prohibited by the Code of Judicial Conduct