Opinion 07-64

April 19, 2007

Digest:         A candidate for election to judicial office who is unable to attend a politically sponsored function to be held during the candidate’s Window Period, may purchase up to two tickets to the function and send up to two bona fide campaign representatives to attend on his/her behalf.

Rules:          Election Law 17-162; 22 NYCRR 100.0(Q); 100.5(A)(1)(h); 100.5(A)(2)(i), (v); 100.5(A)(4)(a)-(c); 100.5(A)(5); Opinions 03-68; 02-50.

Opinion:

         A judge who is a candidate for elective judicial office is unable to personally attend a politically sponsored event. The judge asks if it is permissible for the judge (or the judge’s campaign committee on the judge’s behalf) to purchase two tickets to the event and send one or two representatives from the judge’s campaign committee to attend the event on his/her behalf.

         A candidate for judicial office who is within his/her Window Period (see 22 NYCRR 100.0[Q]) may “purchase two tickets to, and attend, politically sponsored dinners and other functions,” subject to certain limitations on ticket price (22 NYCRR 100.5[A][2][v]). Thus, in a prior Opinion, this Committee concluded that campaign contributions should not be used to purchase tickets for members of a judge’s campaign committee to attend politically sponsored dinners and other functions, because the rule, by authorizing the purchase of only two tickets, combined with the phrase “and attend,” contemplates a candidate attending with a “spouse or companion” (Opinion 02-50). In Opinion 03-68, this Committee advised that a judge who is a candidate for election to another judicial office may purchase two tickets to a politically sponsored function during his/her Window Period, provided that he/she “intends and expects” to attend the event (see Opinion 03-68; 22 NYCRR 100.0[Q]). Using campaign funds to purchase tickets to politically sponsored dinners or other functions beyond what is specifically permitted by the Rules would constitute an impermissible political contribution (see Opinions 03-68; 02-50; 22 NYCRR 100.5[A][1][h]; see also Election Law 17-162).

         The Committee notes, however, that the present inquiry includes an additional fact that was not raised or addressed in prior opinions, i.e., a scheduling conflict that prevents the candidate from attending the function. The Rules Governing Judicial Conduct specifically allow a candidate’s campaign committee “to conduct campaigns for the candidate” through “means not prohibited by law” (22 NYCRR 100.5[A][5]). It is the Committee’s view, therefore, that if a judicial candidate cannot attend a political function in person, the candidate may send a bona fide campaign representative to attend the function on his/her behalf (cf. 22 NYCRR 100.5[A][2][i] [permitting candidate to attend and speak to gatherings on his/her own behalf]; 100.5[A][2][v] [setting forth limitations on number and price of tickets]; 100.5[A][5] [permitting candidate to establish committee of responsible persons to solicit and accept support from the public on candidate’s behalf]). The candidate must, however, instruct his/her representative about the limitations on campaign speech and conduct that he/she should observe when speaking on the judge’s behalf at the function (see e.g. 22 NYCRR 100.5[A][4][a]-[c]).

         To the extent this determination is inconsistent with Opinion 02-50, that opinion is overruled. The Committee reiterates its conclusion in Opinion 03-68 that a judicial candidate should not purchase tickets to a political function unless he/she intends and expects to use the tickets. However, the Committee has also considered that the often hectic campaigning process presents candidates with conflicting, important campaign appearances where potential campaign workers, supporters and/or voters will be present. We therefore modify the conclusion in Opinion 03-68 to allow a candidate for judicial office who cannot personally attend such a function, due to an actual conflict, to send a bona fide campaign representative to attend on his/her behalf.