Opinion: 01-32

April 19, 2001

NOTE: The Chief Judge’s rules concerning political activities of nonjudicial court employees now appear at 22 NYCRR 50.5.  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:         The fact that a court attorney has been assigned by the court to work for one judge of the court does not make the court attorney the personal appointee of that judge so as to render the court attorney subject to the restrictions on political activities of a judge's personal appointee.

Rule;            22 NYCRR 25.39; 100.5(C); Opinions 91-77 (Vol. VII); 98-09 (Vol. XVI).

Opinion:

         The inquirer is one of three full-time judges of a city court. There are two full-time court attorneys in the court who, the judge states, "technically" work for all of the judges; but in actuality, one of them works "primarily" for the inquirer. The judge inquires as to any restriction on political activity that may be applicable to the court attorney who works "substantially" for the judge only. "For example, can the Court Attorney contribute to campaigns, attend political speaking engagements, stuff envelopes or go door to door for candidates for elected office . . . ."

         The answer to the judge's inquiry depends, in part, on whether the court attorney who works "primarily" or "substantially" for the judge alone is the judge's "personal appointee." If so, section 100.5(C) of the Rules Governing Judicial Conduct controls. That section provides for various restrictions on contributions, holding elective office in a political organization, and certain fund-raising activities. However, the Committee is of the view that, in this instance, the court attorney is not the judge's personal appointee. Despite language in Opinion 91-77 (Vol. VII) which might imply otherwise, the Committee does not believe that a court attorney becomes a personal appointee of a judge merely by the fact of performing services at a particular point in time for one judge alone; and to the extent that Opinion 91-77 (Vol. VII) might be read to say otherwise, we herewith modify that opinion to reflect the views expressed herein. Here, the fact that the court has divided its work so that, as a result, a particular court attorney has been assigned to the inquirer, does not make that person the judge's personal appointee.

         This does not mean that there are no restrictions on political activity of court attorneys who are not personal appointees of a judge. Section 25.39 of the Rules of the Chief Judge ("Prohibition Against Certain Political Activities; Improper Influence," 22 NYCRR 25.39), applies and therefore, as stated in Opinion 98-09 (Vol. XVI), guidance should be sought by the court attorney from the Office of Court Administration concerning proposed political activities. Of course, the judge should be aware that, under any circumstances, even where political activity is permissible, it may not be engaged in during the court attorney's working hours; nor should court resources be employed in pursuit of such activities.