Opinion 03-68

September 4, 2003

Digest:         A judge who is an candidate for election to another judicial office may purchase two tickets to a politically sponsored function during the Window Period, provided that he/she intends to attend the event and the event takes place during the Window Period.

Rules:          22 NYCRR 100.0(Q), 100.5(A)(c),(g),(h), 1005.(A)(2)(v) Opinion 92-77 (Vol. X).

Opinion:

         A judge inquires whether he/she, upon becoming a candidate for another judicial office, may purchase a ticket to a politically sponsored event that he/she does not attend.

         On a prior occasion the Committee addressed the question of whether a judge may purchase tickets to a politically sponsored event that he/she does not attend. In Opinion 92-77 (Vol. X) the Committee determined that the aforementioned conduct was permitted, as long as the purchase occurs during the Window Period, as defined in 22 NYCRR 100.0(Q).

         That opinion was issued prior to the adoption of the current Rules Governing Judicial Conduct, effective January 1, 1996. Under the prior Rules, purchase of a ticket to a politically sponsored event was permissible under section 100.7(a)(2)(ii), and attendance at such events, was permissible under section 100.7(a)(2)(iii). That is, the acts of purchasing and attending appeared to be regarded as possibly separate activities, both of which were independently permitted to candidates. However, the present rule set forth in section 100.5(A)(2)(v), states that a candidate may “purchase two tickets to, and attend politically sponsored dinners and other functions . . . “ 22 NYCRR 100.5(A)(2)(v) (emphasis added). Thus, the two aspects of this particular political activity are grouped together in a single subdivision, and, in our view are to be regarded as a single course of conduct.

         Accordingly, we are now of the opinion that a candidate may purchase a ticket to such events only if he/she intends and expects to attend the particular dinner or other function. Given the desirability, if not the necessity for candidates to elective judicial office to be present at such functions, the rules permit what would otherwise

be forbidden conduct. See, 22 NYCRR 100.5(A)(c), (g), (h). But that purpose would be subverted if the candidate could expend the funds with the foreknowledge that he/she will not be attending. Under such circumstances the payment would be nothing other than a contribution to a political organization or candidate, which is prohibited conduct regardless of whether a judge is running for elections or not. 22 NYCRR 100.5(A)(1)(h). The inquiring judge therefore should not make such purchases unless he/she intends and expects to attend the event.

         We realize that this opinion alters the conclusion set forth in Opinion 92-77 (Vol. X), and that there may have been prior reliance on that opinion. Accordingly, the effective date of the determination now being made is the date of transmittal of this opinion to the inquiring judge.