Opinion 12-71

April 26, 2012

Digest:         An administrative judge, whose law clerk does not have a quasi-judicial title nor functions, may permit that law clerk to engage in political activity, subject to the applicable Rules Governing Judicial Conduct and Part 50 of the Rules of the Chief Judge governing the political activities of non-judicial employees. The judge should instruct his/her law clerk not to create the impression that the judge is engaged in political activities and should advise him/her that political activities are not permitted in the court house or during the law clerk’s working hours.

Rules:          22 NYCRR 50.5(a)-(e); 100.2; 100.2(A); 100.5(C)(1)-(4); Opinions 07-11; 98-46 (Vol. XVI); 95-119 (Vol. XIII); 90-102 (Vol. VII).

Opinion:

         The inquiring administrative judge has asked whether his/her personal appointee, a law clerk who does not have a quasi-judicial title nor functions,¹ may engage in certain political activities in support of a close relative’s election campaign. In particular, the judge asks, on behalf of his/her law clerk:

1) May [the law clerk] walk in parades with [the law clerk’s relative]?

2) May [the law clerk] appear in family photos to be used in the campaign?

3) Can [the law clerk] make calls during non-work hours and attend organizational meetings?

4) Can [the law clerk] attend political functions with [the law clerk’s relative]?

         A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must always promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). A judge also must prohibit members of the judge’s staff who are the judge’s personal appointees from engaging in the following political activity (22 NYCRR 100.5[C][1]-[4]):

(1) holding an elective office in a political organization, except as a delegate to a judicial nominating convention or a member of a county committee other than the executive committee of a county committee;

(2) contributing, directly or indirectly, money or other valuable consideration in amounts exceeding $500 in the aggregate during any calendar year to all political campaigns for political office, and other partisan political activity including, but not limited to, the purchasing of tickets to political functions...;

(3) personally soliciting funds in connection with a partisan political purpose, or personally selling tickets to or promoting a fund-raising activity of a political candidate, political party, or partisan political club; or

(4) political conduct prohibited by section 50.5 of the Rules of the Chief Judge²... .

         The Committee has previously advised that “the judge must prohibit the law clerk from engaging in those political activities specifically prohibited by the rules, and that, in the absence of special circumstances, any activity not specifically prohibited by the rules is permitted” (see Opinion 07-11, quoting Opinion 90-102 [Vol. VII]).

         Because the political activities proposed by the judge’s law clerk do not fall into any of the categories prohibited in Section 100.5(C)(1)-(4), the primary question presented is whether the inquiring judge’s status as an administrative judge presents a “special circumstance” warranting additional restrictions on the political activities of the judge’s law clerk. The Committee concludes that it does not.

         Accordingly, the inquiring judge may permit his/her law clerk to engage in all of the political activities described, subject to the applicable Rules Governing Judicial Conduct and Part 50 of the Rules of the Chief Judge governing the political activities of non-judicial employees. The inquiring judge must instruct his/her law clerk not to create the impression that the judge is engaged in political activities (see Opinions 07-11; 90-102 [Vol. VII]) and should advise the law clerk that political activities are not permitted in the court house or during the law clerk’s working hours (see Opinions 07-11; 90-102 [Vol. VII]).

         The Committee notes that the law clerk may contact the Unified Court System’s Office of Court Administration, the agency with the ultimate authority to interpret Part 50, for guidance on how Part 50 applies to his/her particular circumstances. (Contact: ETHICS HELPLINE: 1-888-28ETHIC.)

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    ¹ The Committee notes that an employee who holds a quasi-judicial position, such as a court attorney-referee, is bound by the same restrictions as a judge with respect to political activity (see Opinions 98-46 [Vol. XVI]; 95-119 [Vol. XIII]).

    ² Section 50.5 is entitled “Prohibition against certain political activities; improper influence.” It contains four subsections which cover (a) recommendations based on political affiliations; (b) inquiry concerning political affiliations; (c) political assessment; (d) prohibition against promise of influence (see 22 NYCRR 50.5[a]-[d]); and a fifth subsection which largely tracks the language of Section 100.5(C)(1) (see 22 NYCRR 50.5[e]).