Joint Opinion 15-112/15-146

September 10, 2015

Digest:         (1) To the extent legally permissible, a judicial candidate may hire responsible persons to pass petitions for his/her campaign and compensate them for the time expended, subject to the fair value rule. (2) A judicial candidate may not agree to pay his/her campaign manager a bonus contingent on the candidate’s electoral victory.

Rules:          Election Law § 17-122; Judiciary Law § 212(2)(l); 22 NYCRR 100.0(Q); 100.5(A)(1); 100.5(A)(1)(h); 100.5(A)(2); 100.5(A)(4)(c); 100.5(A)(5)-(6); Opinions 12-129(A)-(G); 08-40.

Opinion:

         Two judicial candidates seek guidance about specific payment arrangements intended to compensate campaign workers for their efforts in supporting their respective campaigns. In Inquiry 15-112, the candidate wishes to pay individuals for time spent circulating petitions and gathering signatures in order to put the candidate’s name on the ballot. In Inquiry 15-146, the candidate proposes to pay his/her campaign manager a flat fee of $10,000, with a $5,000 bonus in January if the candidate is elected.

          A judge or non-judge candidate for elective judicial office may personally participate in his/her own campaign for judicial office during the applicable window period, subject to certain limitations (see 22 NYCRR 100.5[A][1]; 100.5[A][2]; see also 22 NYCRR 100.0[Q] [defining “window period”]). For example, a judicial candidate “may not permit the use of campaign contributions or personal funds to pay for campaign-related goods or services for which fair value was not received” (22 NYCRR 100.5[A][6]) and may not pay an assessment to, or make a contribution to, a political organization or any other candidate (see 22 NYCRR 100.5[A][1][h]). He/she may also establish a committee of responsible persons to “conduct campaigns for the candidate” via lawful means (22 NYCRR 100.5[A][5]), but he/she must not authorize or knowingly permit anyone to do for the candidate what he/she is prohibited from doing under the Rules Governing Judicial Conduct (see 22 NYCRR 100.5[A][4][c]; see also 22 NYCRR 100.5[A][1] [prohibiting judicial candidates from “directly or indirectly engag[ing]” in unauthorized political activity]).¹

         The Committee has previously advised that a judicial candidate may not hire “a professional fund-raiser who would be paid either on a commission or percentage basis” (Opinion 12-129[A]-[G]), as this would provide “built-in incentives” to “underestimate the ‘exacting standards’ to which a judicial candidate is held” (id.). However, the Committee has not previously addressed questions about judicial campaign worker compensation.

         As for Inquiry 15-112, the Committee believes hiring people to circulate petitions, and compensating them for time spent, does not necessarily provide “built-in incentives” to “underestimate the ‘exacting standards' to which a judicial candidate is held” (Opinion 12-129[A]-[G]). A candidate may therefore, to the extent legally allowed, hire one or more responsible persons to help the candidate pass petitions and gather signatures, where their pay is based on the amount of time spent. Such amounts are subject to the fair value rule, so the candidate must be satisfied those workers have been actively doing their campaign services, and the campaign receives fair value for the time so spent (see 22 NYCRR 100.5[A][5]-[6]). The pay must be reasonable, and the candidate should carefully consider how best to memorialize the agreement(s) with accurate records of the work done.

         The Committee cannot comment on any legal questions, including any statutes or regulations that may affect the validity and legality of the petitioning process and/or any legal limitations on paying individuals to circulate petitions (see Judiciary Law § 212[2][l]; see also e.g. Election Law § 17-122).

         With respect to Inquiry 15-146, the proposed compensation structure envisions the candidate pay a total of $15,000 to the campaign manager if he/she wins the election, as opposed to $10,000 if the campaign is unsuccessful. Under these facts, the Committee believes a payment structure giving a campaign manager a 50% bonus contingent on the candidate’s electoral victory is impermissible, as it provides precisely the kinds of incentives Opinion 12-129(A)-(G) prohibits. There would be a substantial risk of creating a public impression that the judicial candidate has adopted a win-at-all-costs mentality, inconsistent with the exacting standards a judicial candidate must honor (see generally 22 NYCRR 100.5[A][4][a]; cf. Opinion 08-40 [noting that candidates for non-judicial office are “not subject to the same exacting standards” as candidates for judicial office]).

         The essential problem here is the victory bonus structure, rather than the hiring of a professional campaign manager. Ordinarily, a judicial candidate may agree, to the extent legally allowed, to pay his/her campaign manager on an hourly or other time basis, or a flat fee for working on the campaign (without an outcome-related “bonus”), subject to the fair value rule (see 22 NYCRR 100.5[A][6] [judicial candidate may not permit the use of campaign contributions or personal funds to pay for campaign-related goods or services for which fair value was not received); cf. 22 NYCRR 100.5(A)(5) (judicial candidate may not use or permit the use of campaign contributions for the private benefit of the candidate or others). Again, the Committee cannot comment on any legal questions (see Judiciary Law § 212[2][l]).

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         ¹ Section 100.5(A)(4)(c) contains one significant exception. A judicial candidate may not directly solicit or accept contributions to his/her campaign, but may do so indirectly by authorizing a committee of responsible persons to do so on his/her behalf (see 22 NYCRR 100.5[A][4][c]; 100.5[A][5]).