Opinion 02-86

Digest:         A judge may not seek public election to the board of a public library in a general election in which all voters in the municipalities are entitled to vote; and if heretofore elected to that position in such an election should resign from the board.

Rules:          22 NYCRR 100.5(A)(1)(d); Opinion 01-42; 90-79 (Vol. V); 90-2 (Vol. V).

Opinion:

         A judge has been serving as a member of the board of a public library having been elected to that position pursuant to a public election. The library district was created by an act of the New York Legislature which prescribes a detailed set of legislative directives as to how the election is to be conducted, including the procedure for nomination by public petition. In addition, the judge has provided the Committee with materials indicating that candidates actively solicit, through advertisements in local newspapers, public support. Given this background, the judge raises for our consideration whether participation and service on the library board might be impermissible under the rules prohibiting political activity by judges who are not running for judicial office.

         We are of the opinion that, under the circumstances described, a judge who seeks by public election the position described would be “participating in [a] political campaign for . . . office,” which is prohibited under section 100.5(A)(1)(d) of the Rules Governing Judicial Conduct. 22 NYCRR 100.5(A)(1)(d). In Opinion 01-42 the Committee noted that although a judge may serve on a library board (see, Opinion 90-2 [Vol. V]), having obtained such position by way of election by library members which amounted to a confirmation of appointment, he or she may not enter upon a process that constitutes “any election involving the public at large.” Opinion 01-42. Here, the applicable statute states that “Every qualified voter in the municipalities shall be entitled to vote at such election.” Thus, the procedure clearly provides for a general election, and it follows that seeking election to the office under the circumstances amounts to political campaigning for a non-judicial office.

         Accordingly, we advise the judge not to seek election to the position and instead resign from such office if heretofore elected in the manner stated. See, Opinion 90-79 (Vol. V) [a judge should not seek re-election to a public school board and should resign from the board].