Opinion 18-14

January 24, 2018

Digest:         A judge in his/her window period may use his/her own personal funds to make sponsor-level charitable donations, and permit the entity to acknowledge the donation by prominently displaying the judge’s name and judicial title, without reference to the “fair value” rule, provided these advertisements contain no reference to his/her campaign.

Rules:          22 NYCRR 100.2; 100.2(A); 100.5(A)(2)-(6); Opinions 18-05; 15-223; 15-163; 15-26/15-44; 13-185; 13-99/13-100/13-101/13-102; 13-18; 12-84/12-95(B)-(G); 10-80; 09-199; 07-137; 04-140; 95-131.

Opinion:

         A full-time judge wishes to use his/her personal funds to buy a $375 sponsorship package at an upcoming fund-raiser for a not-for-profit entity to which the judge makes referrals in his/her judicial capacity. This package would provide the judge with four tickets to the event; a “high visibility” advertisement with the judge’s name prominently displayed at the event; a “special thank you” from the organization on its website, social media, and annual report; and access to a special sponsors-only musical performance. Although the judge is within his/her window period for election, he/she will not use campaign funds for the expenditure. Instead, he/she will use his/her own personal funds and the advertisements will not identify him/her as a candidate in any way. The judge asks if he/she may purchase the sponsorship package and have his/her name and judicial title displayed as the sponsor.

         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 who is within his/her period for election or re-election to judicial office may engage in political activity in furtherance of his/her campaign, albeit subject to significant limitations (see 22 NYCRR 100.5[A][2]-[6]).

         A judicial candidate must not use campaign funds to make charitable donations, but may nonetheless, to the extent legally permissible, use them to purchase tickets to a charitable event in furtherance of his/her campaign (see Opinion 12-84/12-95[B]-[G], issue 2), or to purchase campaign-related advertising (see Opinions 10-80; 07-137). However, the candidate also 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” (22 NYCRR 100.5[A][6] [emphasis added]). Thus, at least with respect to political fund-raisers, a candidate may purchase the lowest-priced full-page advertisement but must not pay a premium for a “prominently displayed” advertisement (Opinion 13-99/13-100/13-101/13-102).

         Outside the campaign context, a judge’s purely personal charitable contributions are not subject to similar constraints. For example, we have not imposed a “fair value” rule on such contributions (cf. Opinion 04-140 [flagging possible implications if a judge made a contribution at a level “essential to sustain the operations” of a non-profit]). Nor need a judge conceal his/her judicial identity when making charitable contributions. To the contrary, a judge may make a contribution to his/her house of worship by purchasing an advertisement in the weekly bulletin with his/her co-judge, identifying themselves by name and title and signing it “your local magistrates” (Opinion 18-05); may sponsor a not-for-profit club “by purchasing an ad on a placemat and denoting [his/her] name and judicial title” along with other sponsors (Opinion 09-199); and may permit a charity to acknowledge the judge’s donation by displaying a sign with the judge’s name and judicial title during the charity’s fund-raising golf outing (see Opinion 13-18). In addition, a judge may make charitable donations to “not-for-profit entities that regularly appear before the judge, including legal services providers and agencies to which the judge may make referrals” (Opinion 15-223; see also Opinions 15-163; 15-26/15-44, issue 3; 13-185; 04-140; 95-131).

         In essence, the novel question here is whether a judge’s charitable expenditures must necessarily be analyzed as campaign-related expenditures if they are made during the judge’s window period for election or re-election.

         Where, as here, the judge will exclusively use personal funds (rather than campaign funds) and the resulting advertisements will not in any way reference his/her campaign, we conclude the expenditure may be analyzed purely as a personal charitable

 contribution under the Rules Governing Judicial Conduct. Therefore, the proposed expenditure is permissible, and the judge may permit the entity to acknowledge his/her sponsor-level charitable donation by prominently displaying his/her name and judicial title (see e.g. Opinion 09-199).

         However, we take no position on any legal questions, including whether the expenditure should or should not be reported under the Election Law.