Opinion 17-23
May 4, 2017
Digest: A judge whose window period has expired may keep his/her campaign account open for the purpose of paying outstanding legal bills from his/her former campaign, where the campaign committee’s sole activities are accepting deposits of the judge’s personal funds and making payments to discharge the campaign’s outstanding legal debt or liability. The campaign account must be closed as soon as practicable once the debt or liability is discharged.
Rules: 22 NYCRR 100.0(Q); 100.2; 100.2(A); 100.5(A)(1); 100.5(A)(1)(h); 100.5(A)(2); 100.5(A)(2)(i); 100.5(A)(5)-(6); Opinions 16-29/16-50; 15-83; 14-148; 14-92/14-94; 08-196; 04-87.
Opinion:
An elected full-time judge asks if he/she may continue to keep his/her campaign account open and transfer his/her personal funds to the account so that his/her campaign committee can continue to pay off outstanding legal bills from the campaign.1 The judge’s campaign committee has not held any fund-raisers or accepted any funds since the general election; its sole remaining activities are accepting donations of the judge’s own personal funds and use of those funds to pay a law firm for legal services previously rendered to the campaign during the window period. The judge notes there are no ongoing legal proceedings relating to his/her former campaign.
A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must always act in a manner that promotes public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). A judge must not “directly or indirectly engage in any political activity” except as expressly permitted (22 NYCRR 100.5[A][1]). Moreover, a campaign for elective judicial office must take place only within the designated “window period” (see 22 NYCRR 100.5[A][2]; Opinions 14-92/14-94; 08-196). The window period for a judge who is on the ballot for the general election ends precisely “six months after the election” (22 NYCRR 100.0[Q]).
During the window period, a judicial candidate may contribute to his/her own campaign as permitted under the Election Law (see 22 NYCRR 100.5[A][2]), but must not otherwise personally solicit or accept campaign contributions from any source (see 22 NYCRR 100.5[A][1][h]; 100.5[A][2][i]). Instead, a judge must form a committee of responsible persons to “solicit and accept reasonable campaign contributions and support from the public” on the candidate’s behalf (see 22 NYCRR 100.5[A][5]). Moreover, a judicial candidate must not use or permit the use of campaign contributions for any private benefit (see id.), and must not permit the use of campaign contributions or personal funds to pay for campaign-related goods or services for which fair value was not received (see 22 NYCRR 100.5[A][6]).
A judicial candidate must close his/her campaign account “as soon as practicable” after the window period ends to avoid any possible appearance that he/she is engaging in impermissible political activity (Opinion 16-29/16-50; see also e.g. Opinions 15-83; 14-148). Thus, for example, a newly-elected judge may not keep a campaign account open beyond the expiration of the window period in order to purchase unspecified items at an indeterminate time in the future (see Opinion 04-87). Still, we have recognized “there may be circumstances that necessitate keeping a campaign account open beyond” the window period (id.).
Here, the judge proposes to transfer his/her personal funds to the campaign account solely to pay the outstanding third-party debts his/her campaign owes to a law firm for legal services rendered to the campaign during the applicable window period. Under the circumstances presented, we conclude that the judge may keep the account open after expiration of the window period for this limited and reasonable purpose, i.e. resolving the campaign’s pre-existing legal bills. Provided the judge and his/her campaign committee do not engage in any fund-raising or any other prohibited political activity, the judge may keep his/her campaign account open as long as this outstanding debt or liability is owed. The campaign account must be closed as soon as practicable thereafter.
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1 The Board of Elections apparently advised the judge that he/she must keep the campaign account open as long as the campaign has any outstanding legal debt or liability.