September 13, 2012
Digest: A judge may attend a retirement party for an elected official who has announced his/her retirement and is not seeking re-election, where the event is being paid for by the retiring official's campaign funds but is not otherwise sponsored by a political organization.
Rules: Election Law § 22 NYCRR 100.0(Q); 100.2; 100.2[A]; 100.5(A)(1); 100.5(A)(1)(g), (i); Joint Opinion 09-240/09-241/10-06; Opinions 07-211; 97-06 (Vol. XV); 90-154 (Vol. VI).
The inquiring judge, who is not currently a candidate for elective judicial office, has received an invitation to attend a party celebrating the retirement of an elected official who is, according to the judge, "[a] very close friend." The judge states that his/her friend is paying for the retirement party with surplus campaign funds but considers the event otherwise non-political in nature and notes that "many prominent community members will attend." According to the judge, "[a]dmission is by invitation and at no cost to the invitee," and the "purpose of the party is simply to thank the elected official for [his/her] many years of public service and not to advance [his/her] career." Indeed, it appears that the judge's friend has advised that he/she "will not run for elected office in the future." The judge's friend is "hosting" the event, and there is no indication in the inquiry that the affair is sponsored by any political organization. Under these circumstances, the judge asks whether he/she may attend.
A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must always act to promote public confidence in the judiciary's integrity and impartiality (see 22 NYCRR 100.2[A]). A judge is generally prohibited from directly or indirectly engaging in partisan political activity except during the "window period" when he/she is a candidate for judicial office (see 22 NYCRR 100.0[Q]; 100.5[A]). For example, judges who are not within their window period are prohibited from attending political gatherings or purchasing tickets to politically sponsored dinners or other functions, even including any such function for a non-political purpose (see 22 NYCRR 100.5[A][g], [i]).
There is, of course, no rule prohibiting a judge from attending a non-political dinner or affair honoring a retiring public official (see Opinions 97-06 [Vol. XV]; 90-154 [Vol. VI]). The question presented here is whether the retiring official's use of campaign funds to pay for his/her retirement party renders it a prohibited political gathering or activity within the meaning of the Rules Governing Judicial Conduct (see generally 22 NYCRR 100.5[A]).
When an elected official uses campaign funds to hold an annual holiday party or other ostensibly social events throughout the course of his/her political career, there is a strong inference that such events are, in fact, related to the official's current or upcoming political campaign (see Opinion 07-211; cf. Election Law §14-130 ["Contributions received by a candidate or a political committee...shall not be converted by any person to a personal use which is unrelated to a political campaign or the holding of a public office or party position"]).
The events bookending an elected official's political career, however, present different considerations. The Committee has advised that an elected official's swearing-in ceremony remains, in essence, a civic event related to holding public office even when paid for by campaign funds (see Joint Opinion 09-240/09-241/10-06; cf. Election Law §14-130, supra). Indeed, the Committee emphasized that permitting judges to attend a ceremony at which a statutorily required oath of office is administered "tends to promote civil relations and discourse between the various branches of government" (see Joint Opinion 09-240/09-241/10-06).
Here, it appears that the retirement party will be hosted by the elected official or his/her friends and family (rather than by a political organization) and that it is neither a fund-raising event nor a launching pad for a new political career. Rather, it is intended simply to honor the end of the official's long career in public service. Under these circumstances, the Committee concludes that the retirement party, although paid for with campaign funds, is entirely unrelated to a political campaign (cf. Election Law §14-130) and should therefore be considered, in essence, a civic and social event marking the end of a political career. Therefore, the inquiring judge may attend (see Opinions 97-06 [Vol. XV]; 90-154 [Vol. VI]).