Opinion 12-169

October 2012

Digest:         Under certain circumstances, a judge who is not a candidate for election to judicial office within his/her window period may attend a post-election reception in honor of the judge’s child.

Rule:            22 NYCRR 100.2; 100.2(A); 100.5(A)(1); 100.5(A)(1)(c), (e), (g), (h); 100.5(A)(2)(I), (iii), (v); Joint Opinion 09-240/09-241/10-06; Opinions 12-143; 07-205; 07-178; 03-114; 97-145 (Vol. XVI).

Opinion:

         A judge whose adult child is running unopposed for election to public office asks if he/she may attend a reception to be held at a local restaurant shortly after election day, to celebrate his/her child’s election. The judge advises that the child’s election committee will pay for the reception. The judge states that he/she is not currently a candidate for elective judicial office within his/her window period when a judge would be permitted to engage in permissible political activity.

         A judge must always avoid even the appearance of impropriety (see NYCRR 100.2) and act at all times in a manner that promotes public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). A sitting judge is prohibited from engaging either directly or indirectly in any political activity except as authorized by the Rules Governing Judicial Conduct or by law (see 22 NYCRR 100.5[A][1]). For example, a judge may not make a contribution to any political candidate (see 22 NYCRR 100.5[A][1][h]) or publicly endorse another candidate for public office (see 22 NYCRR 100.5[A][1][e]) at any time; and a judge may not attend political gatherings except as permitted during his/her own window period for election (compare 22 NYCRR 100.5[A][1][g] with 22 NYCRR 100.5[a][2][I], [iii], [v]).

         The Committee previously has advised that a judge who is not a candidate for elective judicial office within his/her window period may not attend a post-campaign fund-raiser for a newly-elected public official (see Opinion 97-145 [Vol. XVI]). However, a judge who is not a candidate for elective judicial office within his/her window period may attend the ceremony during which a newly-elected public official takes the oath of office and the post-ceremony reception, even if the event is sponsored by the official’s campaign committee or paid for by unused campaign funds, unless the event is a fund-raiser (see Joint Opinion 09-240/09-241/10-06; Opinion 03-114). While the Committee has advised that a judge may attend such traditional post-induction receptions because the swearing-in ceremony constitutes a “civic event,” the Committee has advised a judge against attending a post-election victory party that is separate and distinct from a swearing-in ceremony (see Joint Opinion 09-240/09-241/10-06).

         However, the Committee has also recognized that the special nature of the parent-child bond must be accounted for when addressing judicial ethics. “[A] judge who has a child does not forfeit his/her right to parent that child” (Opinion 12-143; see also Opinion 07-205; Opinion 07-178). While that relationship evolves as a child becomes an adult, that powerful bond remains. Under the specific circumstances presented, the Committee concludes that the judge does not forfeit the rights, benefits, responsibilities and joys of parenthood, and is permitted to attend the celebration of his/her child’s election, notwithstanding that it will not be part of an induction ceremony. Critical to this determination is that the event is not a fund-raiser (see 22 NYCRR 100.5[A][1][h]). In addition, the judge’s child was unopposed in the election. In the Committee’s view, and above all else, a judge’s attendance at the reception is “in the obvious role of [a] parent (Opinion 07-205).” Therefore, in these specific circumstances the judge’s attendance does not give rise to an appearance of impropriety (see 22 NYCRR 100.2), nor can it reasonably be said to constitute an impermissible engagement in partisan political activity (see 22 NYCRR 100.5[A][1]).

         The judge must make every effort to act in a manner that makes clear he/she is present solely in his/her role as a parent celebrating his/her child’s significant accomplishment (cf. Opinions 07-205; 07-178). In particular, the judge must be mindful to avoid any appearance that he/she is or was involved in partisan political activity connected with his/her child’s campaign (see 22 NYCRR 100.5[A][1][c]).