Opinion 15-134

June 11, 2015

Please Note: Although this opinion uses the term “nominating petition,” the same principles also apply to designating petitions and opportunity to ballot petitions.

Digest:         A full-time principal law clerk who is a part-time SCAR hearing officer (1) may not run for or serve as a delegate to a political party’s judicial nominating convention; (2) may apply for and become a notary public; and (3) may not circulate nominating petitions except during his/her window period as a candidate for election to judicial office, and then only if his/her own name - alone or with others - is on the petition.

Rules:          N.Y. Const. art. VI, §20(b); 22 NYCRR 50.5(e); 100.0(A); 100.2; 100.2(A); 100.5(A)(1)(a), (c)-(d), (h); 100.5(B); 100.5(C)(1); 100.6(A); Opinions 14-107; 13-133; 13-111; 10-191; 10-101/11-01; 03-129; 98-46; 96-146; 95-83; 94-78.

Opinion:

         A full-time principal law clerk who is currently assigned to a law department pool states that he/she has also been appointed as a part-time Small Claims Assessment Review (SCAR) hearing officer. Under these circumstances, the inquirer asks if he/she may run for and serve as a judicial delegate; apply for and become a notary public; and circulate nominating petitions as a notary public and/or as a member of a political party.

         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]). Quasi-judicial officials are also required to comply with the Rules Governing Judicial Conduct in performing their judicial duties and otherwise must “so far as practical and appropriate” use such rules as guides to their conduct (22 NYCRR 100.6[A]). Of particular relevance, the Committee has advised that principal law clerks, appointed to serve part-time as SCAR hearing officers during regular court hours as part of their job responsibilities, are subject to the same restrictions as sitting judges with respect to political activities (see Opinion 13-133).

Serving as a Delegate to a Judicial Nominating Convention

         Ordinarily, a judge’s personal appointee staff member may hold the office of “a delegate to a judicial nominating convention” (22 NYCRR 100.5[C][1]; accord, 22 NYCRR 50.5[e]). Here, however, the inquiring principal law clerk is also a SCAR hearing officer, and thus performs quasi-judicial functions within the court system. As previously noted, the Committee has stated that principal law clerks who are appointed to serve part-time as SCAR hearing officers during regular court hours as part of their job responsibilities must observe the same limits on political activity as sitting judges (see Opinion 13-133 [citing prior opinions]).

          A sitting judge must resign from judicial office on becoming a “candidate” for elective nonjudicial office in a primary or general election (see 22 NYCRR 100.5[B]). The Rules define “candidate” as “a person seeking selection for or retention in public office by election” (22 NYCRR 100.0[A]). One becomes a candidate “as soon as he or she makes a public announcement of candidacy, or authorizes solicitation or acceptance of contributions” (id.).

         The resign-to-run rule contains only a single exception, which permits a judge to continue to hold judicial office “while being a candidate for election to or serving as a delegate in a state constitutional convention” (22 NYCRR 100.5[B]; Opinion 96-146). This exception does not authorize a sitting judge to run for, or serve as, a delegate to a political party’s judicial nominating convention.

         Further, the Committee has previously advised that serving as a delegate to a political party’s judicial nominating convention constitutes both “attending a political gathering” (see Opinion 98-46) and “hold[ing] any office in a political party” (see Opinion 95-83). Neither of these are permissible for a sitting judge, or a quasi-judicial official (see 22 NYCRR 100.5[A][1][a], [h]). In addition, the Committee believes that running for the position of a political party’s judicial delegate would violate the rule against engaging in partisan political activity outside of the judge’s applicable window period for election or re-election to judicial office (see 22 NYCRR 100.5[A][1][c]).

         Accordingly, the inquiring principal law clerk who also serves as a SCAR hearing officer likewise may not run for, or serve as, a delegate to a judicial nominating convention (see 22 NYCRR 100.5[A][1][a], [c], [h]; 100.5[B]; Opinion 98-46 [a court attorney-referee may not serve as a delegate to a judicial nominating convention, despite language in the Rules of the Chief Judge which “specifically permits UCS employees to do so”]).

Serving as a Notary Public

         The Committee has previously advised that judges who are subject to a constitutional prohibition on holding another public office or trust may not serve as a notary public (see Opinions 13-111; 03-129; see generally N.Y. Const. art. VI, §20[b] [referring to a “judge of the court of appeals, justice of the supreme court, judge of the court of claims, judge of a county court, judge of the surrogate’s court, judge of the family court or judge of a court for the city of New York”]).

          However, the Committee has also advised that there is nothing inherently unethical in a judge serving as a notary public, in light of the authority otherwise given to judges to take oaths and acknowledgments (see Opinions 14-107; 03-129). Thus, the Committee has advised that a judge or quasi-judicial official who is not subject to the constitutional provision may serve as a notary public (see Opinions 14-107 [full-time city court judge who presides outside the City of New York]; 10-191 [judicial hearing officer]; 94-78 [part-time town or village justice]).

         As it appears that neither a principal law clerk nor a SCAR hearing officer is subject to the constitutional provision, the Committee concludes that the inquirer may apply to become, and thereafter serve as, a notary public (see Opinions 14-107; 10-191; 94-78; cf. N.Y. Const. art. VI, §20[b]).

Passing Petitions

         Summarizing prior opinions, the Committee explained in Opinion 10-101/11-01 (citations omitted):

this Committee has consistently advised that a judicial candidate may circulate his/her own individual petitions, as well as joint petitions that name the judicial candidate in addition to other candidates on his/her slate. The passing of petitions that contain the judicial candidate’s name, with or without the names of other candidates, constitutes participation in the judicial candidate’s own campaign for judicial office and is therefore permissible. Conversely, for similar reasons, this Committee has consistently advised that a judicial candidate may not circulate individual or joint petitions for other candidates, if such petitions do not include the judicial candidate’s own name as a candidate.

The same principles apply to a principal law clerk who is also a part-time SCAR hearing officer (see Opinion 13-133). Thus, the Committee concludes that, if the inquirer is a candidate for elective judicial office within the applicable window period, he/she may, to the extent legally permitted, circulate individual or joint petitions which name him/her as a judicial candidate (see Opinions 14-107; 10-101/11-01). However, the inquirer must not circulate any individual or joint petitions outside his/her own window period for election to judicial office (see 22 NYCRR 100.5[A][1][c]-[d]), whether he/she proposes to do so solely as a notary public or as a member of a political party.