Opinion 14-45

April 24, 2014

Digest:         A judge may accept an unannounced award at a college’s fund-raising event; may be identified during and after the event as an award recipient, including on the brochures or programs distributed at the event; and may be listed as a past award recipient on the college’s website once the event is concluded.

Rules:          22 NYCRR 100.2; 100.2(A); 100.4(C)(3)(b)(i)-(ii), (iv); Opinions 11-37; 07-90; 99-99 (Vol. XVIII).

Opinion:

         A non-judge candidate for elective judicial office states that he/she is currently under consideration to receive an award from a college. The award will be presented at the college’s fund-raising event early next year. The timing of the event is such that, if the inquiring candidate wins the election, he/she will be a sitting judge at the time the award is presented. The inquiring candidate states that the college ordinarily lists the recipient of the award on the invitations to the fund-raising event, on the brochures or programs distributed at the event, and thereafter on the college’s website after the event has taken place. The inquirer asks whether he/she may accept the award if he/she is a sitting judge at the time of the event.¹

         A judge must avoid impropriety and its appearance in all the judge’s activities (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 may not personally solicit funds (see 22 NYCRR 100.4[C][3][b][i]) or permit the use of the prestige of judicial office for fund-raising (see 22 NYCRR 100.4[C][3][b][iv]). A judge may attend fund-raising events for not-for-profit educational, religious, charitable, cultural, fraternal or civic organizations but may not be a speaker or guest of honor at such events unless an exception applies (see 22 NYCRR 100.4[C][3][b][ii]). Specifically, a judge may accept “an unadvertised award ancillary to” such events, and may also be “a speaker or guest of honor at a court employee organization, bar association or law school function” (id.).

         The Committee has previously advised that a judge may not accept an advertised award as outstanding alumnus of the year from the judge’s college alumni association’s local chapter at its annual scholarship fund-raising dinner (see Opinion 99-99 [Vol. XVIII]). Here, too, the fund-raiser is for a college, rather than a “court employee organization, bar association or law school” (22 NYCRR 100.4[C][3][b][ii]), and therefore a sitting judge may not accept the proposed award in connection with the fund-raiser, if the award is announced in advance (see Opinion 99-99 [Vol. XVIII]).

         Nonetheless, a sitting judge may accept a previously unannounced award at a charitable fund-raising event, where the judge is “not named ... beforehand in the event’s promotional material” (Opinion 11-37; 22 NYCRR 100.4[C][3][b][ii]), and the judge “need not conceal” thereafter that he/she has done so (see Opinion 11-37). Accordingly, the Committee has advised that a judge need not object to publication of a photograph of the judge and other award recipients in a local newspaper after such an event is concluded (see id.).

          Based on these rules and opinions, the Committee concludes that a sitting judge may accept an award from a college, which will be presented at the college’s fund-raising event, provided the judge’s name is not listed on invitations to the fund-raising event or other promotional materials and is not otherwise announced prior to the event (see Opinion 11-37; 22 NYCRR 100.4[C][3][b][ii]). The judge may be identified during and after the event as an award recipient, including on any brochures or programs distributed at the event, and may thereafter be listed as an award recipient on the college’s website (see Opinion 11-37).

         Thus, if the inquiring judicial candidate learns before the election that he/she has been selected to receive the award, the candidate should promptly advise the college not to include his/her name on the invitations or announcements and not to circulate copies of brochures or programs that mention his/her name prior to the event in order to ensure that he/she can attend and accept the award if elected to judicial office (see generally Opinions 11-37; 99-99 [Vol. XVIII]; 22 NYCRR 100.4[C][3][b][ii]).²

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     ¹ The inquirer has explained that he/she will promptly withdraw his/her name from consideration for the award if a sitting judge would be barred from accepting it. This is sufficient to save the question from being unduly speculative or hypothetical under the circumstances presented, even though the award selection committee and the electorate have not yet made their respective choices.

     ² The inquiring candidate has specifically requested guidance as if he/she were a sitting judge, because the award in question will be presented after the date on which successful candidates in this year’s general election are expected to assume judicial office. Thus, the present opinion does not in any way alter the Committee’s prior advice that a candidate for judicial office who is not currently a judge may be an announced speaker or guest of honor at a charitable fund-raising event during the candidate’s Window Period (see Opinion 07-90).