Opinion 15-227

December 3, 2015

Digest:         A judge whose spouse is actively involved in the not-for-profit American Israel Public Affairs Committee may attend a non-political dinner at which the judge’s spouse and other financial supporters will be recognized.

Rules:          26 USC 501(c)(3)-(4); 22 NYCRR 100.0(M); 100.2; 100.2(A); 100.5(A)(1)(g), (i); Opinions 15-210; 02-98.

Opinion:

         The inquiring judge’s spouse is actively involved in a not-for-profit organization known as the American Israel Public Affairs Committee (AIPAC). The judge states that AIPAC is not a political action committee, and does not rate or endorse candidates for elective or appointive public office. Instead, AIPAC has federal tax-exempt status under 26 USC 501(c)(4) in support of its mission “to reinforce relations between the United States and Israel” and “to strengthen, protect and promote U.S.-Israel relations in ways ... [to] enhance the security of” both nations. The judge asks if he/she may join his/her spouse for an upcoming AIPAC dinner - primarily a social event - at which financial supporters, such as his/her spouse, will be recognized.

         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 sitting judge who is not in his/her window period for election or re-election may not attend “political gatherings” (see 22 NYCRR 100.5[A][1][g]) or purchase tickets to “politically sponsored dinners or other functions, including any such function for a non-political purpose” (see 22 NYCRR 100.5[A][1][i]). The term “political organization” includes a political party or a political club, but the definition also encompasses a group whose “principal purpose ... is to further the election or appointment of candidates to political office” (22 NYCRR 100.0[M]).

         As stated in Opinion 15-210 (citations and paragraph break omitted):

Tax-exempt status under 26 USC 501(c)(3) “tends to suggest that an organization is not engaged in partisan political activity,” whereas not-for-profit entities ... which are exempt under 26 USC 501(c)(4), may engage in “some partisan political activity” without jeopardizing their tax-exempt status. However, “[t]he fact that [501(c)(4)] organizations are legally permitted to engage in some political activity does not necessarily resolve the question of whether they are ‘political organizations’ under the Rules.” It is also necessary to consider the organization’s “principal purpose” as reflected in its mission and public activities.

         The Committee understands that AIPAC is permitted to, and does, engage in extensive political activity. However, the judge does not seek to join AIPAC or contribute to it; instead, he/she wishes to accompany his/her spouse to a social event at which the spouse and other supporters will be recognized. As AIPAC’s stated purpose does not involve supporting or opposing particular candidates, the Committee concludes the event is not “politically sponsored” under the Rules (see 22 NYCRR 100.0[M]; 100.5[A][1][i]; cf. Opinion 15-210). As the event itself is primarily a social event to recognize existing supporters, such as the judge’s spouse, it does not appear to be a “political gathering” (see 22 NYCRR 100.5[A][1][g]; cf. Opinion 02-98). Accordingly, the judge may attend under these circumstances.