Opinion 13-115

September 12, 2013

Digest:         Under the circumstances presented, a judge may attend and speak during a memorial service for a close personal friend who recently died, even though the friend is the judge’s former district party leader and the decedent’s county committee and party club will sponsor the memorial service.

Rules:          22 NYCRR 100.0(Q); 100.2; 100.2(A); 100.5(A)(1); 100.5(A)(1)(g); Opinion 12-124.

Opinion:

         A judge asks whether he/she may attend and speak during a memorial service for the judge’s former district party leader, who died recently. The judge states that the decedent’s county committee and political party club will host the memorial service which will be open to the public.¹ The judge also states that he/she is not currently seeking election, and thus is not within his/her “window period” for political activity.

         A judge must always avoid even the appearance of impropriety (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]). A judge is prohibited from engaging either directly or indirectly in partisan political activity except during the “window period” when the judge is a candidate for judicial office (see 22 NYCRR 100.0[Q]; 100.5[A][1]). For example, a judge who is not within his/her “window period” is prohibited from attending political gatherings (see 22 NYCRR 100.5[A][1][g]).

         The present inquiry appears to be a matter of first impression. However, in Opinion 12-124, the Committee advised:

When an elected official uses campaign funds to hold an annual holiday party or other ostensibly social events throughout the course of his/her political career, there is a strong inference that such events are, in fact, related to the official's current or upcoming political campaign (see Opinion 07-211; 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"]).

The events bookending an elected official's political career, however, present different considerations... .

Here, it appears that the retirement party ... is neither a fund-raising event nor a launching pad for a new political career. Rather, it is intended simply to honor the end of the official's long career in public service. Under these circumstances, the Committee concludes that the retirement party, although paid for with campaign funds, is entirely unrelated to a political campaign (cf. Election Law §14-130) and should therefore be considered, in essence, a civic and social event marking the end of a political career. Therefore, the inquiring judge may attend (see Opinions 97-06 [Vol. XV]; 90-154 [Vol. VI]).

         A memorial service, even more so than a retirement party, marks the end of a political career. Although the decedent’s county committee and party club will sponsor the memorial service, it appears that the judge will speak solely in his/her capacity as a personal friend of the deceased. The event is not a fund-raiser; it is open to the public at large, regardless of political affiliation, and is intended solely to honor the deceased’s long career in public service rather than to advance any political candidate, party, or platform. Therefore, it is permissible for the judge to attend and speak during the memorial service.

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     ¹ It appears from the inquiry that this will be the primary, if not exclusive, memorial service for the decedent.