Opinion 08-161

September 11, 2008

Digest:         A part-time judge, in his/her capacity as co-owner and operator of a restaurant, may permit the restaurant to provide catering services to political organizations, provided the restaurant receives reasonable and customary compensation for its services and the judge does not request or accept political favors in connection with the transaction. The judge should not permit the restaurant to make contributions or offer discounts to political organizations, but may make contributions and offer discounts to police organizations. The judge’s title and name should not be used to advertise events sponsored by political or police organizations at the restaurant nor should the judge’s participation be a prominent or substantial feature of such events.

Rules:          22 NYCRR 100.2; 100.2(A); 100.4(D)(1)(a); 100.5(A)(1); 100.5(A)(1)(h); 100.6(B)(4); Opinions 08-01; 98-62 (Vol. XVII); 98-40 (Vol. XVI); 90-84 (Vol. V).

Opinion:

         A part-time judge, along with his/her spouse, is a co-owner and operator of a well-known restaurant. Before the inquirer assumed judicial office, the restaurant made donations to political and police organizations in the form of direct contributions, gift certificates, and reduced rates for functions held at the restaurant. The judge asks whether the restaurant may continue these practices. Further, the judge asks whether he/she may permit a political organization to print the restaurant name in invitations to a fund-raiser to be held at the restaurant.

         A judge must avoid impropriety and the appearance of impropriety (see 22 NYCRR 100.2) and must act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary (see 22 NYCRR 100.2[A]). A part-time judge may accept private employment that is not incompatible with judicial office and that does not conflict or interfere with the proper performance of the judge’s duties (22 NYCRR 100.6[B][4]), but must not engage in business dealings that may reasonably be perceived to exploit the judge’s judicial position (see 100.4[D][1][a]).

         With respect to politically sponsored functions, a judge may not directly or indirectly contribute to a political organization or otherwise engage in political activity, except as permitted by the Rules Governing Judicial Conduct (see 22 NYCRR 100.5[A][1]; 100.5[A][1][h]). However, a part-time judge may, under appropriate conditions, engage in business with political organizations. For instance, a part-time judge who is a band leader may perform music at a political fund-raising event, provided the judge and all the band members receive reasonable and customary compensation for their services (see Opinions 98-62 [Vol. XVII]; 90-84 [Vol. V]). Similarly, a part-time judge who is employed as an account executive for a credit card processing service may sell such services to a political committee, provided the judge receives reasonable and customary compensation for the services and neither receives nor requests political favors in connection with the transaction (see Opinion 08-01).

         It is the Committee’s view, therefore, that a part-time judge, in his/her capacity as a co-owner and operator of a restaurant, may permit the restaurant to cater politically sponsored functions, provided the restaurant receives reasonable and customary compensation for doing so (see id.). The judge should neither request nor accept political favors in connection with the transaction (see 22 NYCRR 100.5[A][1]), and should not permit the restaurant to make contributions, donate gift certificates or offer reduced rates to political organizations (see 22 NYCRR 100.5[A][1][h]).

         With respect to functions sponsored by police organizations, this Committee has previously determined that a judge may contribute to the local Police Benevolent Association, even if local police officers who are members of that group regularly appear in the judge’s court (see Opinion 98-40 [Vol. XVI]). Therefore, the judge may permit the restaurant to make contributions, donate gift certificates or offer reduced rates for such police-sponsored functions.

         Although the judge’s restaurant may cater political events and police functions as discussed above, the judge should not permit clients of the restaurant to use the judge’s title or name in connection with these events, nor should the judge’s participation be a prominent or substantial feature of such events (see 22 NYCRR 100.2[A]; 100.4[D][1][a]; Opinion 98-62 [Vol. XVII]).