Opinion 09-126

June 3 - 4, 2009

Digest:         A judge may not resign from active participation on the bench, but remain on the judicial payroll for the purpose of receiving compensation for accrued vacation time at the same time that he/she is an announced candidate for elective nonjudicial office.

Rules:          22 NYCRR 100.2; 100.2(A); 100.5(A)(1)(d); 100.5(B); Opinions 03-24, 89-126 (Vol. IV).

Opinion:

         The inquiring judge contemplates running for non-judicial office. He/she asks whether he/she may “resign from active participation on the bench, but continue to receive [his/her] accrued vacation time (since lump sum payment apparently is not an option) after becoming a candidate.” The judge advises that he/she would have no judicial functions or any contact with the court other than remaining on the payroll for purpose of receiving compensation for his/her accrued vacation time.

         A judge must avoid impropriety and the appearance of impropriety in all the judge’s activities (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]). Therefore, a sitting judge is prohibited from participating in any political campaign for any office (see 22 NYCRR 100.5[A][1][d]) and must resign from judicial office upon becoming a candidate for elective nonjudicial office either in a primary or in a general election (see NYCRR 100.5[B]).

         In Opinion 89-126 (Vol. IV), the Committee advised that a town justice may not take a leave of absence to campaign for election to the office of town supervisor without violating the Rules Governing Judicial Conduct that prohibit judges from participating in political campaigns. In the Committee’s view, it is a judge’s judicial status that gives rise to the prohibition, and not whether the judge is actually performing judicial duties at a particular point in time. Thus, in Opinion 03-24, the Committee advised that a judge may not take a leave of absence from his/her judicial office to participate in a campaign for non-judicial, elective public office.

         Similarly, the judge in the present inquiry may not resign from active participation on the bench, but remain on the judicial payroll for the purpose of receiving compensation for accrued vacation time at the same time that he/she is an announced candidate for elective non-judicial office.