Opinion 16-168

December 8, 2016

Digest:         Where two years have passed since the election, the judge may appoint his/her former campaign treasurer to serve as a referee in a foreclosure action.

Rules:          22 NYCRR 36.1(a)(9); 36.2(c)(4)(ii); 100.2; 100.2(A); 100.3(C)(3); Opinions 16-29/16-50; 96-86.

Opinion:

         A judge who was elected to judicial office more than two years earlier, but whose campaign account was formally closed less than two years ago,¹ asks if he/she may now appoint his/her former campaign treasurer to serve as a referee in a foreclosure action.

         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 must exercise the power of appointment impartially and on the basis of merit and must avoid nepotism and favoritism (see 22 NYCRR 100.3[C][3]). For Part 36 appointments, a judge also may not appoint a person who has served as “campaign chair, coordinator, manager, treasurer or finance chair” for his/her judicial campaign, “or the spouse, sibling, parent or child of that person, or anyone associated with the law firm of that person ... for a period of two years following the judicial election” (see 22 NYCRR 36.1[a][9]; 36.2[c][4][ii] [emphasis added]).

         This Committee has previously advised that Part 36 applies to appointment of a referee in a foreclosure action (see Opinion 96-86; see also 22 NYCRR 36.1[a][9]). Section 36.2(c)(4)(ii) clearly prohibits the appointment of a former campaign treasurer for a two-year period, which runs from the date of “the judicial election,” without regard to the closing of the judicial campaign account. Therefore, because more than two years have passed since the inquiring judge’s election, he/she may now appoint his/her former campaign treasurer to serve as a referee in a foreclosure action or to any other fiduciary position governed by Part 36 for which he/she is qualified, provided the appointment is made impartially and on the basis of merit.

_______________________

         ¹ The Committee reminds candidates that, barring factors outside their control, they must “dispose of any remaining campaign funds and close [their] campaign account as soon as practicable” after conclusion of the window period (Opinion 16-29/16-50). The Judicial Campaign Ethics Center is available for guidance (see http://www.nycourts.gov/ip/jcec/).