Opinion 17-174

December 7, 2017

Digest:         (1) A judge may serve as master of ceremonies for a close personal friend’s public swearing-in ceremony, subject to certain limitations. (2) A judge may sing the national anthem at a not-for-profit organization’s fund-raiser, provided the judge’s participation is unannounced and ancillary to the event.

Rules:          22 NYCRR 100.2; 100.2(A); 100.4(C)(3)(b)(ii); 100.5(A)(1); 100.5(A)(1)(e); 100.5(A)(1)(g); Opinions 14-93; 09-240/09-241/10-06.

Opinion:

         The inquiring judge asks two unrelated questions concerning involvement in a friend’s swearing-in ceremony and at a not-for-profit organization’s fund-raisers.

Master of Ceremonies

         First, the judge asks if he/she may serve as master of ceremonies for the public swearing-in ceremony of a good friend who was recently elected to non-judicial office. The event is paid for from the friend’s campaign funds but is free and open to the public. It is not a fund-raiser. Moreover, the swearing-in ceremony at which the judge would serve as master of ceremonies is a unitary event; it will not adjourn to another location for a separate party or celebration.

         A judge must always avoid impropriety and its appearance (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]). Judges must not engage in “directly or indirectly engage in any political activity” except as expressly permitted (see 22 NYCRR 100.5[A][1]). For example, a sitting judge may not publicly endorse or oppose a candidate for election to public office (see 22 NYCRR 100.5[A][1][e]) and may not attend political gatherings (see 22 NYCRR 100.5[A][1][g]).¹

         However, a judge may attend the swearing-in ceremony and post-ceremony reception for a newly-elected public official and may administer the public official's oath of office, even if the event is sponsored by the official’s campaign committee or paid for by unused campaign funds, as long as the event is not a fund-raiser (see Opinion 09-240/09-241/10-06).

         Here, the judge’s proposed involvement is more prominent than merely administering his/her friend’s oath of office. We nonetheless believe the judge may serve as master of ceremonies for a close personal friend’s swearing-in ceremony, where the event is not a fund-raiser but free and open to the public, and is organized and paid for by the friend’s campaign committee rather than a political party. We also emphasize that the inquiring judge proposes only to serve as master of ceremonies for a single, unitary swearing-in event, rather than at a separate victory party or celebration at another location. The judge must, as always, avoid partisan rhetoric.

National Anthem

         Second, the judge asks if he/she may sing the national anthem at a fund-raising event for the NAACP or other not-for-profit organizations.

         Where, as here, an entity other than a “court employee organization, bar association or law school” holds a fund-raising event, a judge “may not be a speaker or the guest of honor,” but may accept “an unadvertised award ancillary to such event” (22 NYCRR 100.4[C][3][b][ii]).

         We conclude that merely singing the national anthem at a fund-raiser does not, without more, make the judge a “speaker or guest of honor” at the event. Thus, provided the judge’s participation is not announced or disclosed prior to the fund-raiser and is ancillary to it, the judge may agree to sing the national anthem. The judge’s participation may be revealed in a program circulated during the event but must not be mentioned in advance on invitations or announcements (cf. Opinion 14-93).

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¹We need not address here the exceptions applicable to a judge who is currently within his/her window period for election or re-election to judicial office.