Opinion 99-10

January 28, 1999

NOTE: The Chief Judge’s rules concerning dual employment and political activities of nonjudicial court employees now appear at 22 NYCRR 50.3 and 50.5, respectively.  For guidance on Part 50 (formerly Part 25), court personnel may consult the Office of Court Administration’s Nonjudicial Ethics Helpline (888-283-8442).

Digest:         There is no ethical prohibition precluding a law clerk to a Supreme Court justice who is the judge's personal appointee from seeking election to a public school board.

Rule:            22 NYCRR 25.37; 25.39; 100.5(C); 100.5(C)(2); Opinions 97-69 (Vol. XV); 94-19 (Vol. XII).

Opinion:

         A Supreme Court justice inquires whether there is any ethical impediment to the judge's law clerk becoming a candidate for the office of at-large member of a public school board. The judge understands that the law clerk has been assured that there is no administrative barrier within the court system to such service, but seeks guidance concerning any potential ethical restrictions.

         The Rules Governing Judicial Conduct specify four types of political activity in which a member of the judge's staff, who is the judge's personal appointee, may not engage. 22 NYCRR 100.5(C). The four specifications of prohibited political activity include (1) the holding of an elective office in a political organization, subject to a stated exception, (2) the contributing of cash or other consideration in amounts in excess of $500 per year to political campaigns in general, subject to the proviso that this limitation does not apply to an appointee's contributions to his/her own campaign, (3) the soliciting of funds for a partisan political purpose, and engaging in other specified political fund-raising, and (4) the engaging in conduct prohibited by section 25.39 of the Rules of the Chief Judge. The latter rule (22 NYCRR 25.39), contains a prohibition against the holding of an elective office in a "political organization."

         The implication to be drawn from the Rules noted above is that there is no per se ethical prohibition on the right of a personal appointee of a judge to hold those elective offices which are not connected with "political organizations." As noted above, the language of section 100.5(C)(2), expressly contemplates the possibility of a personal appointee of a judge making contributions to his/her own campaign for elective office. Thus, the Committee has previously advised that law clerks, whether full-time or part-time, may serve on school boards. Opinions 97-69 (Vol. XV); 94-19 (Vol. XII).

         The Committee also notes, as stated in Opinion 97-69 supra, that the law clerk "must receive the written approval of his/her appointing authority prior to assuming school board membership . Such approval is also subject to the written consent of the Chief Administrator of the Courts. 22 NYCRR 25.37."

         This opinion deals only with running for election to and serving on the school board. Hypothetical situations concerning judicial disqualification or insulation of the law clerk in certain matters are not presently before the judge or the Committee.