Opinion 15-176

October 22, 2015

Digest:        A judge may reveal, discuss and explore his/her interest in receiving an interim appointment to non-judicial office with the public official who will make that decision if the position becomes vacant.

Rules:          22 NYCRR 100.0(A); 100.2; 100.2(A); 100.3(A); 100.4(A)(1), (3); 100.5(A)(1); 100.5(B); Opinions 11-18/11-42; 02-34; 97-65; 96-97; 93-55.

Opinion:  

         The inquiring judge believes an elective nonjudicial office may be vacant before the incumbent’s term ends. If that occurs, an interim appointment is likely. He/she asks if he/she may write to the public official with power to make the interim appointment, and request the official to consider him/her for that appointment, should a vacancy occur before the incumbent’s term ends.

         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’s judicial duties take precedence over all the judge’s other activities (see 22 NYCRR 100.3[A]) and his/her extra-judicial activities therefore must not be incompatible with judicial office (see 22 NYCRR 100.4[A][3]) or cast reasonable doubt on the judge’s capacity to act impartially as a judge (see 22 NYCRR 100.4[A][1]). In addition, a judge must not directly or indirectly engage in political activity except as permitted by the Rules Governing Judicial Conduct (see 22 NYCRR 100.5[A][1]), and must resign from judicial office on becoming a candidate for elective nonjudicial office (see 22 NYCRR 100.5[B]).¹

         The Committee notes, preliminarily, the nonjudicial office in question is incompatible with the inquirer’s judicial office. This does not, by itself, preclude the judge from seeking an interim appointment to the position, because the Committee has advised that a sitting judge may, subject to certain limitations, apply for employment which is incompatible with the judge’s judicial office, “even though the judge must resign or retire from judicial office if and when he/she is ultimately hired for the position” (Opinion 11-18/11-42).

         In Opinion 97-65, a sitting judge asked whether he/she could “discuss the possibility of becoming a candidate” for nonjudicial office with “political party members and governmental officials.” Even though the judge would need to resign from judicial office on actually becoming a candidate for the office, the Committee advised:

there is no ethical barrier preventing the judge from engaging in such discussions. Preliminary discussions with political authorities about a possible candidacy for judicial or nonjudicial office are not proscribed political activities under section 100.5 of the Rules Governing Judicial Conduct

(Opinion 97-65). In essence, the Committee has concluded that such limited, non-public discussions constitute “testing the waters” for a possible future run, rather than an actual candidacy for the office in question (see id.; Opinions 02-34 [a judge may speak individually to members of a party’s executive committee or to other party leaders about a possible judicial candidacy at any time, but must not contact community residents outside the window period to determine if they would support the judge’s candidacy]; 93-55 [a judge may specially appear at a political party’s executive committee for the limited purpose of being interviewed as a possible candidate for the position of district attorney]).

         The Committee has similarly advised there is “no rule prohibiting” a sitting judge from “contacting a political party and advising that party’s leadership of the [judge]’s desire to be considered for appointment by the Governor to fill a vacancy to an elective judicial office” (Opinion 96-97). Of course, a judge who seeks appointment, rather than election, to another public office is not a “candidate” within the meaning of the Rules (see 22 NYCRR 100.0[A] [a “candidate” is one who seeks public office “by election”]), and therefore may not engage in the limited political activity allowed to judges who are candidates within their window period (see Opinion 96-97 [advising that a support magistrate who is seeking appointment, rather than election, to judicial office may not attend political functions or engage in other prohibited political activity]).

         Unlike prior opinions, the inquiring judge here wishes to (1) reveal, discuss and explore the possibility of receiving an interim appointment to nonjudicial office, rather than the possibility of becoming a candidate for election to that office; (2) contact the appointing authority directly, rather than expressing his/her interest indirectly through political party leaders; and (3) express his/her interest in writing, rather than in conversation. However, under the circumstances presented, these differences do not create any improper appearance. Indeed, they may minimize a risk the judge’s conduct might be misperceived as improper.

         The Committee concludes this judge may, subject to generally applicable limits on judicial speech and conduct, discuss and explore his/her interest in seeking appointment to a non-judicial office. The judge may therefore write the appointing authority concerning the judge’s interest in receiving an interim appointment to nonjudicial office if a position becomes vacant.

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         ¹ A “candidate” is a person “seeking ... public office by election” (22 NYCRR 100.0[A]). Even if he/she has not yet been officially nominated, a person becomes a candidate when “he or she makes a public announcement of candidacy, or authorizes solicitation or acceptance of contributions” (22 NYCRR 100.0[A]).