June 13, 2013
Digest: A judicial candidate who has inadvertently overpaid for an upcoming political event by purchasing a sponsor-level ticket rather than a general admission ticket, and who has requested a refund of the excess payment, need not take any further action.
Rules: 22 NYCRR 100.5(A)(1)(c); 100.5(A)(1)(h); 100.5(A)(2); 100.5(A)(2)(v); Opinions 12-129(A)-(G); 12-61; 07-80; Joint Opinion 06-80 and 06-81; Opinions 04-133; 03-92; 92-97 (Vol. X); 88-26 (Vol. I).
The inquiring candidate for elective judicial office states that after he/she purchased a sponsor-level ticket for $250 or less to an upcoming political event, he/she became aware of Opinions 92-97 and 88-26, which require candidates to purchase the lowest priced ticket to the event. The candidates states that he/she plans to request a refund of the difference between the sponsor-level ticket and the cheapest general admission ticket. In the mean time, the candidate has also become aware that the organizer of the event has mailed out invitations which list the names of all those who have purchased sponsor-level tickets to the event. The candidate asks whether he/she must “do anything publicly to rectify this situation.”
A judge or non-judge 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 generally 22 NYCRR 100.5[A][c]; 100.5[A]). Although a judge or non-judge candidate for elective judicial office must not make a contribution to any other political candidate or any political organization (see 22 NYCRR 100.5[A][h]), any judicial candidate may purchase two tickets to, and attend, a politically sponsored event (see 22 NYCRR 100.5[A][v]; Joint Opinion 06-80 and 06-81). The ticket price “shall not exceed the proportionate cost” of the event (22 NYCRR 100.5[A][v]), and a ticket price of $250 or less is deemed to be the proportionate cost of the function (id.).
The Committee has previously advised that, if tickets for a political event are offered at multiple prices, a candidate “must purchase those with the lowest price” (Opinions 12-129(A)-(G); 92-97 [Vol. X]; see also Opinion 88-26 [Vol. I] [judicial candidate “may purchase the lowest priced dinner ticket to the political club fund-raiser, but should not purchase the more expensive tickets denominated as ‘Sponsor' or ‘Patron’”]). Thus, in effect, a judicial candidate may not purchase tickets at a price higher than the price all other attendees are required to pay, because that would be an impermissible political contribution (see 22 NYCRR 100.5[A][h]).
Here, it appears that the inquiring candidate mistakenly believed that he/she could purchase any level of ticket to a political event, provided that the price was no more than $250 (cf. 22 NYCRR 100.5[A][v]). Thus, it appears that the inquiring candidate made the mistake – rather than the sponsor of the event. Nonetheless, once the candidate realized his/her mistake, he/she promptly requested a refund of his/her excess payment. Under the circumstances presented, the Committee believes the candidate need not take any further action.1
1 Although the analogy is far from perfect, outside of the political context, the Committee has advised that a judge who discovers that his/her name and title were used to advertise a bar foundation’s fund-raising event should send a letter “objecting to the use of [his/her] name in the advertisement and requesting a retraction” and “should also advise the foundation to cease from using the advertisement in any form and ... not to use [the judge’s] name in a similar manner in the future” (Opinion 12-61; see also, e.g., Opinions 07-80; 04-133; 03-92). Once the judge has done so, he/she need not take any further action (see generally Opinions 12-61; 07-80; 04-133; 03-92). In most cases, this is sufficient because the Committee “has no authority to advise or direct the [fund-raising organization] with respect to its actions” (Opinion 03-92).