Opinion 17-43

March 16, 2017

Digest:         A part-time judge who wishes to run for non-judicial office may inform the local municipality in advance that he/she plans to resign from judicial office on a particular date, but must not disclose the reason for his/her resignation.

Rules:          22 NYCRR 100.0(A); 100.5(B); Opinion 04-143/05-05.

Opinion:

         A part-time judge is considering running for non-judicial office, and would like to provide advance notice of his/her intended resignation date to the local government body that will be charged with making an interim appointment once the judge resigns. The judge is willing to withhold the reason for his/her resignation, if necessary, under the Rules Governing Judicial Conduct.

         A judge must “resign from judicial office upon becoming a candidate for nonjudicial office either in a primary or in a general election” (22 NYCRR 100.5[B]). Under the Rules, a “candidate” is “a person seeking selection for or retention in public office by election,” whether or not he/she has secured a political party’s nomination (22 NYCRR 100.0[A]). Section 100.0(A) further provides:

A person becomes a candidate for public office as soon as he or she makes a public announcement of candidacy, or authorizes solicitation or acceptance of contributions.

         The issue here is whether giving advance notice to the local municipality that the judge might or will resign on a particular date – without more – constitutes a public announcement of candidacy for non-judicial office.¹

         Provided the judge does not disclose that he/she is considering running for non-judicial office, giving advance notice to the local municipality of an intended or possible resignation does not constitute “a public announcement of candidacy” within the meaning of 22 NYCRR 100.0(A). As long as the judge does not disclose the reason for his/her planned resignation, the judge may provide advance notice of it without triggering the resign-to-run rule.

         Accordingly, this judge may inform the local municipality in advance that he/she plans to resign from judicial office on a particular date, but must not disclose the reason for his/her resignation.

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         ¹ Disclosing one’s retirement plans to a town board or village council so its members can prepare for a possible interim judicial appointment does not constitute “testing the waters” for any office (see e.g. Opinion 04-143/05-05 [discussing the concept of “testing the waters”]).