Opinion 22-124

September 8, 2022

Digest:       A judge may attend an annual fund-raising gala equally benefitting Citizens Union and Citizens Union Foundation, as a guest of the judge’s partner.

Rules:        22 NYCRR 100.0(M); 100.2; 100.2(A); 100.5(A)(1)(g), (i); Opinions 21-142; 15-227; 02-98.

Opinion:

         A judge asks if it is permissible to attend Citizens Union’s annual fund-raising gala as a guest of the judge’s partner, who serves on the organization’s board. Event proceeds will be divided equally between the entity’s two arms: Citizens Union, an organization with tax-exempt status under 26 USC 501(c)(4), and Citizens Union Foundation, which has tax-exempt status under 26 USC 501(c)(3). The organizations’ website (citizensunion.org) contains the following mission statement:

Citizens Union and Citizens Union Foundation are committed to reforming New York City and State government by fostering accountability, accessibility, transparency, honesty and the highest ethical standards. Always nonpartisan, since 1897, we have devoted ourselves to holding our government accountable and the enfranchisement of all New Yorkers.

We note that Citizens Union describes the 501(c)(4) organization as its “lobbying arm, enabling us to advocate for policy that serves the people of New York – not moneyed interest,” while the 501(c)(3) organization “focuses on the research and public education areas important to our mission.” The website currently features position papers and other work concerning “ensuring a fair and accurate Census 2020 count, police accountability, increasing voter turnout, budget transparency, ethics reform, and better elections,” an extensive section on redistricting in New York, and “voters directories” providing an evaluation of candidates in upcoming and recent elections.

         A judge must always avoid even the appearance of impropriety and must always act to promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2; 100.2[A]). A sitting judge who is not in their window period for election or re-election may not attend “political gatherings” or purchase tickets to “politically sponsored dinners or other functions, including any such function for a non-political purpose” (see 22 NYCRR 100.5[A][1][g]; [i]). The term “political organization” includes a political party or a political club, but the definition also encompasses a group whose “principal purpose ... is to further the election or appointment of candidates to political office” (see 22 NYCRR 100.0[M]).

         We observe initially that the fund-raiser is equally co-sponsored by and benefiting Citizens Union Foundation, the organization’s non-political, not-for-profit educational arm, a factor which supports the conclusion that attendance “may fall within the bounds of permissible extra-judicial activity, provided that certain conditions are met” (Opinion 21-142 [citations omitted]).

         Opinion 15-227 is instructive here. We advised that a judge whose spouse is actively involved in the American Israel Public Affairs Committee, a 501(c)(4) organization, may attend a non-political dinner at which the judge’s spouse and other financial supporters will be recognized (see Opinion 15-227). As we explained, “the fact that 501(c)(4) organizations are legally permitted to engage in some political activity does not necessarily resolve the question of whether they are ‘political organizations’ under the Rules” (id. [brackets and citation omitted]). Thus, it is “also necessary to consider the organization’s ‘principal purpose’ as reflected in its mission and public activities” (id.).

         Likewise, we need not here address whether the judge may join or contribute to the 501(c)(4) lobbying arm of Citizens Union, but only whether the judge may attend a specific fund-raising event equally benefitting Citizens Union and Citizens Union Foundation as a guest of the judge’s partner. Citizens Union’s mission statement suggests it engages in a broad range of non-political and non-partisan civic activities and its “stated purpose does not involve supporting or opposing particular candidates” (Opinion 15-227). Moreover, we previously advised that a judge may attend a fund-raising event sponsored by a local Black and Hispanic Coalition “even though the organization may support endorsed candidates for elective public office” (Opinion 02-98). We reasoned that the Coalition’s endorsement of candidates “is but one of a broad range of non-political non-partisan civic activities in which the organization engages” (id.). Here, too, we conclude that “the mere fact that one of many activities of [Citizens Union’s lobbying arm] includes supporting certain endorsed candidates would not preclude a judge from mere attendance at a fund-raising event sponsored by that organization” (id.).

         Considering these circumstances, including materials promoting the event, we conclude that the annual gala is neither a “politically sponsored” event (see 22 NYCRR 100.0[M]; 100.5[A][1][i]; Opinion 15-227) nor a prohibited “political gathering” under the rules (see 22 NYCRR 100.5[A][1][g]; cf. Opinion 02-98).

         Therefore, we conclude that the judge may attend the annual fund-raising gala equally benefitting Citizens Union and Citizens Union Foundation, as a guest of the judge’s partner.