Opinion 16-75

June 16, 2016

Digest:         Two judicial candidates, hosting a joint fund-raiser, may permit their campaign committees to accommodate an attendee who supports only one candidate and therefore refuses to pay 50% of the ticket price to each campaign committee, by allowing him/her to pay the full price to one campaign committee. If they choose to so proceed, the candidates must instruct their campaign committees to shield the candidates from the accommodation’s details, including the donor’s identity.

Rules:          22 NYCRR 100.0(Q); 100.2; 100.2(A); 100.5(A)(1); 100.5(A)(1)(e); 100.5(A)(2)(i), (iii); 100.5(A)(5); 100.5(A)(1)(h); Opinions 05-99; 03-06; 02-100; 02-64; 02-06; 01-99; 91-113; 88-04.

Opinion:

         The inquiring judge and another person are within their window periods for election/re-election to judicial office and each has a campaign committee to solicit and accept donations. The two committees agree to host a joint fund-raiser by dividing the costs of the event evenly. After setting the ticket price, the committees will invite the attendees to write separate, equal checks for each campaign. The judge asks if his/her campaign committee may accept the full price of admission, rather than 50% of the ticket price, when someone refuses to donate to both and wishes to pay the full price of attendance to only one candidate.

         A judge must 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]). Thus, a sitting judge may not engage either directly or indirectly in any political activity except as allowed by the Rules Governing Judicial Conduct or by law (see 22 NYCRR 100.5[A][1]). During the applicable window period (see 22 NYCRR 100.0[Q]), a judicial candidate, i.e., a judge or non-judge who is seeking public election to judicial office, may personally participate in his/her campaign; may attend gatherings on his/her own behalf; and may appear at gatherings with other candidates who make up the slate of which the judicial candidate is a part (see 22 NYCRR 100.5[A][2][i], [iii]). Although a judicial candidate may not personally accept or solicit any donations (see 22 NYCRR 100.5[A][2][i]; 100.5[A][5]), he/she may establish a committee of responsible persons to solicit and accept support and reasonable campaign contributions from the public (see 22 NYCRR 100.5[A][5]). Additionally, a judicial candidate must not publicly endorse or publicly oppose another candidate for office (see 22 NYCRR 100.5[A][1][e]) or solicit funds for or donate to a political organization or candidate (see 22 NYCRR 100.5[A][1][h]).

         The Committee has earlier advised that two judicial candidates of the same slate may hold a joint fund-raiser provided they, and their campaign committees, take care “to avoid any implication of a cross-endorsement or solicitation” (Opinion 01-99; see also Opinion 91-113). Thus, for example, they may not form a single campaign committee (see Opinions 03-06; 02-64; 88-04). Our Committee has also previously stated that a judicial candidate may not pay more than his/her pro rata share of expenses for the costs of joint advertising “because paying any higher amount would be deemed to constitute a contribution to another political candidate, which is prohibited” (Opinion 05-99; see also Opinion 02-100).

         Here, the inquiring candidate’s committee learned of a supporter who wishes to donate to only one candidate of the two, and insists on contributing only to that candidate, despite the campaign committee’s instruction to pay half the ticket price to each campaign. In this Committee’s view, where a supporter wishes to attend a joint fund-raiser exclusively to support one candidate, and refuses to donate to the other, the two candidates may, in their discretion, instruct their campaign committees to accommodate the attendee’s request to pay the entire ticket price to only one campaign, rather than refusing him/her admission.

         If the candidates choose to so proceed, they should also remind their respective committees not to commingle and divide the money received from the event, or to make any payment above their pro rata share of the costs, so as to avoid even the appearance of an impermissible contribution to another political candidate (see Opinions 05-99; 02-100). Also, the campaigns should take care to shield the two candidates from learning the details of any such accommodations, including the identity of those who chose to support only one candidate, as the campaign committees exist, in part, so that “a candidate [may] remain ignorant of who contributed to his or her campaign” (Opinion 02-06).

         Finally, the Committee notes that the campaign committees’ agreement to share their proportionate costs for this event and their instruction to the attendees to write separate checks to the respective campaigns for 50% of the ticket price are consistent with the Committee’s prior opinions and, therefore, permissible (Opinions 02-100; 01-99).