Joint Opinion 09-240/09-241/10-06

January 27-28, 2010

Digest:         A judge may attend the swearing-in ceremony and post-ceremony reception for a newly-elected public official and may administer the public official's oath of office, even if the event is sponsored by the official's campaign committee or paid for by unused campaign funds, as long as the event is not a fund-raiser.

Rule:            Election Law §14-130; 22 NYCRR 100.0(Q); 100.2; 100.2(A); 100.5(A)(1); 100.5(A)(1)(g)-(i); Opinions 08-213; 07-89; 06-147; 06-96; 06-71; 03-114; 01-42 (Vol. XX); 00-113 (Vol. XIX); 97-145 (Vol. XVI); 88-132 (Vol. III).

Opinion: 

         Three judges ask whether they may attend the swearing-in ceremony of a public official newly-elected to the executive branch. The event is not a fund-raiser and will be held at a public university. The official’s political campaign committee is financing the event "from [the official's] campaign funds," so there "is no money being collected or fund raising being done for this event." In Inquiry 09-241, the judge also asks whether he/she may administer the official's oath of office during the event. None of these three judges is currently seeking election to judicial office or is otherwise within the window period during which he/she may engage in permissible political activity.

         A judge must always avoid impropriety and its appearance (see 22 NYCRR 100.2) and must always act to promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). Judges are generally prohibited from engaging in partisan political activity except during the "window period" when a judge him/herself is a candidate for judicial office (see 22 NYCRR 100.0[Q]; 100.5[A][1]). For example, judges who are not within their window period are prohibited from "attending political gatherings" (22 NYCRR 100.5[A][1][g]).

         As to Inquiry 09-241, the Committee previously has advised that a judge may perform the civic duty of administering the oath of office to a newly-elected public official (see Opinion 97-145 [Vol. XVI]; cf. Opinions 08-213 [noting that the inauguration of the President of the United States "is a civic event at which the Chief Justice of the United States Supreme Court administers the presidential oath of office"]; 07-89 [incumbent judge who is running for election may use a published photograph of a County Court judge administering his/her oath]). Accordingly, the inquirer in 09-241 too may do so.

         With respect to attending the swearing-in ceremony of a public official newly-elected to the executive branch, the Committee previously has advised that a judge may attend the public inauguration of the President of the United States (see Opinion 08-213); the inauguration of a personal friend who was recently elected to a governmental position in a foreign country (see Opinion 06-96); and the induction ceremony of a newly-elected judge (see Opinion 03-114). In Opinion 03-114, the Committee noted that a judge may attend the induction ceremony of another judge, "and thereafter the reception which is being paid for out of surplus campaign funds." However, in concluding that a judge may attend an inauguration, the Committee, in Opinion 06-96, noted that "no political party or body was sponsoring the event" (compare Opinion 06-96 with Opinion 03-114). To the extent that this quoted language of 06-96 may appear inconsistent with this Opinion, 06-96 it is hereby modified. The Committee now concludes that a judge may attend a swearing-in ceremony for any public official, as well as the ensuing reception, even if it is financed with unexpended campaign funds and/or sponsored by the official's political campaign committee. A ceremony at which a statutorily required oath of office is administered is a civic event that calls for collegiality among holders of public office, and tends to promote civil relations and discourse between the various branches of government. "[T]he fact that the cost is being met with surplus campaign funds, does not, in our opinion, transform the reception into a political function at which attendance would be forbidden" (Opinion 03-114; cf. Election Law §14-130 ["Contributions received by a candidate or a political committee...shall not be converted by any person to a personal use which is unrelated to a political campaign or the holding of a public office or party position" (emphasis added)]).

         Therefore, in the Committee’s view, administering a public official's oath of office and/or attending his/her swearing-in ceremony and the traditional reception that almost always follows these events neither creates an appearance of impropriety (see 22 NYCRR 100.2) nor constitutes prohibited participation in a political activity or a political gathering (see 22 NYCRR 100.5[A][1]). Therefore, as long as no fund-raising takes place (see 22 NYCRR 100.5[A][1][h]-[i]), judges may attend swearing-in ceremonies and receptions that follow at any time, without regard to whether these gatherings occur during or outside the judges’ "window period."

         Finally, the Committee notes that this opinion does not modify prior opinions prohibiting judges from participating in various political activity outside their window period. Thus, judges not in their window period still may not administer the oath of office to officers or officials of political clubs or organizations, as those events are political gatherings involving people who are not "public officials" within the meaning of this joint opinion (see Opinions 06-71 [non-candidate judge may not administer the oath of office to the president-elect of a political club, even if the judge "would leave immediately after"]; cf. 01-42 [Vol. XX] [judge within window period may administer oaths of office to a political club's newly-elected officers]). Likewise, a judge may not attend a political fund-raiser outside his/her window period, even if the fund-raiser is held in conjunction with a swearing-in ceremony (see Opinion 97-145 [Vol. XVI] [non-candidate judge may swear in a newly-elected public official, but may not thereafter attend the official's fund-raising "Gala Ball"]).

         The Committee also notes that the inquiring judges have asked only about attending an ordinary swearing-in ceremony that includes a traditional post-induction reception; the Committee thus has no reason to reconsider its prior advice that judges outside their window period may not attend a separate inaugural ball hosted by a state political delegation, a political organization, or political interest group (see Opinion 08-213) or a post-election victory party that is substantially separate and distinct from the swearing-in ceremony (see Opinions 06-147 [non-candidate judge may not attend the post-election "festivities" sponsored by his/her spouse's campaign where election results are tallied and the spouse will address supporters and the press regarding the election]; 00-113 [Vol. XIX] [non-candidate judge may not attend a post-election victory party celebrating a neighbor's election as a town board member]; 88-132 [Vol. III] [non-candidate judge may not attend a victory party for a newly-re-elected state assemblyman]).