September 13, 2012
Please Note: Opinion 16-29/16-50 has raised the threshold for treating unexpended campaign funds as de minimis to “$2,500 or less.”
Digest: (1) A judicial candidate may not hire a professional fund-raising consultant who will be paid on a percentage or commission basis. (2) A judicial candidate may hold a free “meet and greet” event at which modest and reasonable refreshments are served. (3) A judicial candidate may attend and participate in a politically sponsored golf tournament during his/her window period, subject to limitations on price and number of tickets, and may also purchase campaign advertisements at such events, subject to the fair value rule. (4) A judicial candidate may comment on an opponent’s conduct, subject to certain limitations. (5) A judicial candidate who is defeated in the election may use a de minimis amount of unexpended campaign funds for an extremely modest social event to thank persons who significantly volunteered on the candidate’s campaign.
Rules: 22 NYCRR 100.0(Q); 100.4(D)(5)(c); 100.5; 100.5(A)(1); 100.5(A)(1)(c)- (e), (f), (h); 100.5(A)(2); 100.5(A)(2)(I), (v); 100.5(A)(4)(a), (c), (d)(iii); 100.5(A)(5); 100.5(A)(6); Opinion 12-95(A); Joint Opinion 12-84/12-95(B)-(G); Opinions 10-135; 09-162; 08-43; 08-40; 07-187; 07-135; 07-65; 06-172; 06-162; 04-106; 02-06; 01-98; 01-81; 99-38 (Vol. XVII); 98-06 (Vol. XVI); 92-97 (Vol. X); 88-26 (Vol. I); 2007 Ann Rep of NY Commn on Jud Conduct 127; 2007 Ann Rep of NY Commn on Jud Conduct 115.
In this Opinion, the Committee considers several recurring and significant questions that the Judicial Campaign Ethics Subcommittee has received.
A candidate for elective judicial office may personally participate in his/her own campaign for judicial office during his/her window period, subject to certain limitations (see 22 NYCRR 100.5[A]; 100.5[A]; see also 22 NYCRR 100.0[Q] [defining “window period”]). For example, a judicial candidate may not publicly endorse or publicly oppose (other than by running against) another candidate for public office (see 22 NYCRR 100.5[A][e]); may not participate in any political campaign or any partisan political activity on behalf of other candidates (see 22 NYCRR 100.5[A][c]-[e]); and may not make speeches on behalf of another candidate (see 22 NYCRR 100.5[A][f]). A judicial candidate also may not make contributions to other candidates (see 22 NYCRR 100.5[A][h]) or personally solicit funds for any political organization or candidate (see id.; see also 22 NYCRR 100.5[A]; 100.5[A]). Moreover, a judicial candidate must not authorize or knowingly permit any person to do for the candidate what the candidate is prohibited from doing under the Rules Governing Judicial Conduct (see 22 NYCRR 100.5[A][c]; see also 22 NYCRR 100.5[A] [prohibiting judicial candidates from “directly or indirectly engag[ing]” in unauthorized political activity]).
Question 1. Hiring a Professional Fund-Raising Consultant
In Inquiry 12-129(A), a candidate for elective judicial office asks if he/she may hire a professional fund-raising consultant1 who would be paid either a commission or a percentage of the amount raised.
A judicial candidate who wishes to solicit funds for his/her campaign must establish a committee of “responsible persons” to do so on his/her behalf, subject to all applicable restrictions in the Rules Governing Judicial Conduct (see 22 NYCRR 100.5[A]; see also Opinions 08-43 [campaign committee necessary for fund-raising, unless campaign is entirely self-funded]; 07-135 [judge’s own website cannot be used to solicit contributions, but campaign committee’s website can]).
The Committee has previously advised that a judicial candidate may not engage in joint fund-raising activity with a candidate for non-judicial office because “compliance with Section 100.5 of the Rules Governing Judicial Conduct would be difficult, if not impossible, for a judicial candidate involved in a joint fund-raiser with a non-judicial candidate because the candidate for non-judicial office is not subject to the same exacting standards” (see Opinion 08-40).
For similar reasons, the Committee concludes that a judicial candidate should not hire a professional fund-raiser who would be paid either on a commission or percentage basis. Even with the best of intentions, the payment structure provides powerful built-in incentives for a paid professional to underestimate the “exacting standards” to which a judicial candidate is held (see generally 22 NYCRR 100.5). And, because the candidate is not permitted to personally solicit funds or familiarize him/herself with the identities of contributors or the amounts contributed (see, e.g., Opinions 10-135; 04-106; 02-06), it would be difficult, if not impossible, for the candidate to personally supervise the work of a professional fund-raiser to the degree necessary to counteract such incentives.
Question 2. Holding a Free “Meet and Greet” Event With Modest Refreshments
In Inquiry 12-129(B), a judicial candidate asks if he/she may host a “meet and greet” function, so that voters may get to know him/her. The candidate notes that the event is not intended as a fund-raiser, and the candidate wishes to serve bagels, coffee, and juice which the candidate will pay for from personal funds. In Inquiry 12-129(C), a judicial candidate asks whether his/her campaign committee may host a luncheon, without charge and without requesting donations, for newly admitted attorneys so that the candidate may introduce him/herself to that segment of the bar and seek their non-financial support to help “spread the word” of his/her candidacy to their peers. The candidate notes that the event would be a barbeque, and that his/her resume and credentials would be presented to those in attendance.
In the Committee’s view, the proposed events are permissible. A judicial candidate within his/her window period may “attend and speak to gatherings on his or her own behalf, provided that the candidate does not personally solicit contributions” (22 NYCRR 100.5[A][I]). The Rules Governing Judicial Conduct do not preclude candidates from hosting such gatherings themselves, either directly or through a campaign committee. Nor do the Rules prohibit a candidate or his/her committee from providing modest and reasonable refreshments, in his/her capacity as the host of such an event, as a matter of ordinary social hospitality.
In the Committee’s view, as long as the candidate is guided by considerations of modesty and reasonableness in the provision of ordinary social hospitality, the conduct described in Inquiries 12-129(B) and (C) cannot reasonably be perceived as improper.2
Question 3. Politically Sponsored Golf Tournaments
In Inquiry 12-129(D), a judicial candidate asks if he/she may purchase two tickets for a golf tournament sponsored by a political club or political party. It appears that the golf tournament is a fund-raiser for the political organization, and that the candidate wishes to play golf in the tournament. If it is permissible to purchase tickets and participate in the tournament, the candidate further asks if he/she may also purchase advertising at additional cost in the form of a sign placed near a specific golf hole or golf tee (often referred to as a “hole sign” or “tee sign”).
During the applicable window period, a judicial candidate may attend a wide variety of political events or gatherings on behalf of his/her own candidacy, subject to certain limitations on the price and number of tickets if admission is charged (see 22 NYCRR 100.5[A][v]). In particular, the candidate may purchase no more than two tickets to a politically sponsored event, and the ticket price must not “exceed the proportionate cost” of the event (id.). The Rules Governing Judicial Conduct provide that a ticket price of $250 or less is deemed to be the proportionate cost of the function (id.).3 The Committee sees no reason to apply a different rule to politically sponsored golf outings; a judicial candidate may attend, and play golf in, such events during his/her window period, subject to the same limitations pertaining to other politically sponsored events.
The Rules also do not prohibit a judicial candidate from purchasing campaign advertisements at a political event the candidate will attend (see, e.g., Opinion 99-38 [Vol. XVII]), provided that the candidate determines he/she will receive fair value for the amount expended (see 22 NYCRR 100.5[A])4 and the advertisements are generally consistent with the dignity, integrity, independence, and impartiality of the judiciary (see 22 NYCRR 100.5[A][a]).
Thus, the inquiring judicial candidate may purchase campaign advertisements in the form of a hole sign or tee sign, or other types of advertising that are traditionally available at a golf tournament, subject to the same limitations pertaining to other campaign advertisements.
Question 4. Commenting on an Opponent’s Conduct
In Inquiry 12-129(E), an incumbent judge who is currently a judicial candidate within his/her window period states that he/she believes that an opponent has engaged in unethical conduct in the course of the campaign. The judge requests guidance about how to respond, given that he/she is unaware of any official finding of misconduct. In Inquiry 12-129(F), a non-judge judicial candidate who is running against an incumbent judge states that he/she has reviewed a report regarding historical case assignment statistics in the court to which he/she seeks election. The inquiring candidate further states that, according to the report, his/her incumbent opponent handled less than one-third of the cases last year in a two-judge court. The candidate asks if he/she may post a copy of the report on his/her campaign website, draw attention to those statistics, state that it “is time we establish a fair distribution of the workload” of the court, and pledge to do a “fair share” of the court’s work.
A judicial candidate must ensure that his/her campaign statements are consistent with the impartiality, integrity, independence and dignity of judicial office, and are entirely truthful and not in any way misleading (see 22 NYCRR 100.5[A][a]; 100.5[A][d][iii]; Opinion 09-162 [campaign statements must be made “truthfully, and without distortion, about matters of public record regarding themselves”]). In general, a judicial candidate should take particular care to ascertain the truth of all claims he/she makes about his/her opponents, and be careful not to create a false impression of an opponent’s record by omitting relevant facts (see 2007 Ann Rep of NY Commn on Jud Conduct 115 at 117).
The Committee has previously advised that a judicial candidate may comment about his/her opponent’s rating by an independent judicial qualifications commission as long as his/her comments are accurate and not misleading (see Opinion 09-162) and may also bring to the public’s attention the fact that his/her opponent has been publicly admonished by the State Commission on Judicial Conduct, provided it is done in a manner that maintains the dignity appropriate to judicial office (see Opinion 01-98).
The same principles apply here. With respect to the facts presented in Inquiry 12-129(E) and (F), the Committee cannot comment on whether any specific proposed statements are accurate and not misleading. However, each candidate should take steps to ensure the accuracy of the information he/she includes about any opponent, and make every effort to avoid misleading the public with mere speculation or innuendo.5 Moreover, any reference to an opponent must be made in a manner which maintains the dignity appropriate to judicial office.
Question 5. Consolation or “Thank-You” Party
In Inquiry 12-129(G), a non-judge candidate whose bid for elective judicial office was unsuccessful states that the remaining balance in his/her campaign account is approximately $1,000. The candidate asks if he/she may use some of these funds to treat members of his/her campaign committee to dinner at a restaurant to thank them for their assistance in the campaign. The candidate states that these campaign committee members worked long hours, often on nights and weekends, in support of his/her campaign.
The Rules prohibit use of campaign funds for any private benefit (see 22 NYCRR 100.5[A]), and the Committee has recognized that campaign funds may not be used to purchase even “token gifts” for campaign workers (see Opinion 98-06 [Vol. XVI]). Funds remaining after the election may be used throughout the window period to discharge outstanding campaign debts, to attend political events that take place during the window period, and for other lawful purposes as permitted by the Rules and prior Opinions (see, e.g., Joint Opinion 12-84/12-95[B]-[G] [discussing use of campaign funds in the post-election window period]).
At the end of the window period, however, the candidate should arrange to dispose of all unexpended campaign funds and close the campaign account. The funds may not be retained for use in future campaigns (see, e.g., Opinion 01-81). Ordinarily, a candidate’s first priority, where feasible, will be to return the funds pro rata to contributors (see, e.g., Opinion 06-162).
Nonetheless, the Committee has recognized “the difficulties presented by small checks that may remain uncashed” and thus delay the closing of the campaign account (Opinion 07-65). Accordingly, the Committee has previously advised that a judicial candidate may, subject to certain limitations, use otherwise unexpended campaign funds to purchase items to use in judicial office (see Opinions 07-65; 06-162) or to hold a victory party before the end of the window period (see Opinion 07-187). In fact, in response to a question from a successful judicial candidate, the Committee has recently advised that unexpended campaign funds totaling less than $1,000 need not be returned to contributors on a pro rata basis, but may be expended for any lawful non-political purpose connected to judicial office, such as the purchase of office supplies, computer software or books (see Opinion 12-95[A]).
An unsuccessful non-judge candidate who has a relatively small amount of unexpended campaign funds may likewise face practical difficulties in returning the funds pro rata to a large number of contributors; however, he/she may not be able to make the particular expenditures outlined in the previous paragraph because he/she does not hold judicial office and has no victory to celebrate. In the Committee’s view, holding a modest and reasonable social event to say “thank you” to persons who volunteered significant time and/or efforts in support of the candidate’s campaign, using a de minimis amount of campaign funds to purchase refreshments that will be consumed at the event, is likely to be within the contemplation of campaign contributors, even though the candidate’s bid was unsuccessful (see Opinion 12-95[A] [unexpended campaign funds totaling less than $1,000 are de minimis]).6 Like the traditional victory party to which it is roughly analogous, such an event must be held before the end of the window period (see Opinion 07-187).
1 Also referred to as a “professional fund-raiser.”
2 The Committee has previously addressed the concept of “ordinary social hospitality” (22 NYCRR 100.4[D][c]) in the context of gifts to judges and quasi-judicial officials (see, e.g., Opinion 06-172 [emphasizing that the hospitality must be “ordinary,” rather than “unusually expensive or lavish”]). In the Committee’s view, a candidate who abides by this guideline, in deciding what level of hospitality to offer his/her guests at free campaign events the candidate hosts, easily avoids any possible appearance that he/she is distributing items of more than nominal value to voters (see 2007 Ann Rep of NY Commn on Jud Conduct 127 at 134 [holding that respondent failed to abide by the high standards required of judicial candidates by, among other things, “buying drinks for patrons at a bar while identifying himself as a judicial candidate,” and noting that respondent spent approximately $2,000 in this manner during the weeks preceding the election]).
3 The Committee has previously advised that if there are multiple prices for tickets to a political event, a candidate “must purchase those with the lowest price” (Opinion 92-97 [Vol. X]; see also Opinion 88-26 [Vol. I] [noting that a judge may not make a political contribution by purchasing a more expensive “sponsor” or “patron” level ticket to a political dinner]).
4 The fair value rule prohibits the “use of campaign contributions or personal funds to pay for campaign-related goods or services for which fair value was not received” (22 NYCRR 100.5[A]), and thus helps guard against a public perception that candidates are attempting to make disguised political contributions (see Opinion 99-38 [Vol. XVII] [noting the possibility that paying $3,000 for an advertisement in a political journal could be regarded as an impermissible political contribution]; 22 NYCRR 100.5[A][h]).
5 For example, if there has been no published finding of misconduct by an official disciplinary body (Inquiry 12-129[E]), the inquiring candidate should take particular care to avoid giving the false impression that such a finding has been issued or is forthcoming. Similarly, if there has been no published administrative or disciplinary determination that a judge is “shirking” his/her judicial duties (Inquiry 12-129[F]), the inquiring candidate should carefully consider whether there may be other reasons for a seemingly imbalanced caseload in a particular court (see 2007 Ann Rep of NY Commn on Jud Conduct 117; cf. Opinion 09-162 [discouraging speculation about the reason why an opponent’s name is not included on the list of candidates deemed “qualified” for a position]).
6 In the Committee’s view, purchasing modest and reasonable refreshments to be served and consumed at such an event does not constitute a forbidden expenditure under the Rules Governing Judicial Conduct (compare 22 NYCRR 100.5[A] [prohibiting the use of campaign funds for the private benefit of others] with Opinion 98-06 [prohibiting the use of campaign funds to purchase even “token gifts” for campaign workers]).