Opinion 09-41

April 17, 2009

Hon.

Dear Justice :

         This responds to your inquiry (09-41) asking the Committee to reconsider its prior opinions which state that it is ethically impermissible for a judge, outside his/her window period, to attend a social event sponsored by an elected (non-judicial) official and paid for by that official’s campaign fund.

         The Committee re-visited this issue at its last meeting and voted to adhere to its long-standing precedent. The most important reason for the Committee’s conclusion is found in the clear language of 22 NYCRR §100.5(A) (1) (g):

(1) Neither a sitting judge nor a candidate for public election to judicial office shall directly or indirectly engage in any political activity except (i) as otherwise authorized by this section or by law, (ii) to vote and to identify himself or herself as a member of a political party, and (iii) on behalf of measures to improve the law, the legal system or the administration of justice. Prohibited political activity shall include:

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                   (g) attending political gatherings ... .

         The Committee recognizes and appreciates that holiday gatherings sponsored by a political entity are primarily social and festive. However, the Committee believes that there is, at the very least, the appearance of a significant political aspect in such gatherings, even if not in the reality of these events. Moreover, in light of the foregoing unambiguous language of the quoted rule, to hold as you request would require a modification of this rule by the appropriate administrative authority. 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 Committee took a different view in Opinion 03-114, because it would be unreasonable to prohibit judges from attending the swearing-in ceremonies of their newly elected judicial colleagues.

         Enclosed, for your convenience, is Opinion 03-114. Also enclosed is Opinion 07-211, a recent opinion stating the Committee’s position on this issue.

                                                 Very truly yours,

                                                 George D. Marlow

                                                 Justice of the Supreme Court

                                                 Committee Chair

Encls.