Opinion 20-41

September 10, 2020

Digest:         A full-time judge may not attend the annual weekend conference sponsored exclusively by the New York State Association of Black and Puerto Rican Legislators Inc. in Albany, New York.

Rules:          22 NYCRR 100.2; 100.2(A); 100.3(A); 100.5(A)(1); 100.5(A)(1)(g), (i); Opinions 19-138; 06-115; 04-27; 97-152.

Opinion:

         The inquiring full-time judge asks if he/she may attend a weekend-long conference in Albany, sponsored by the New York State Association of Black and Puerto Rican Legislators Inc. (NYSABPRL). The association’s membership consists exclusively of elected New York state senators and assemblypersons. The NYSABPRL is a recognized 501(c)(3) not-for-profit charitable or educational organization founded by legislative caucus members as a non-political, charitable organization. Its stated purpose is to “promote the common good, social and general welfare of the various people of the community; foster and maintain an interest in racial tolerance in the world; to encourage the development of the community and promote economic growth.” According to its website, the entity does not advocate or support either directly or indirectly, the election or defeat of any candidate for public or political office; it makes no political contributions and engages in no political fund-raising for candidates. The NYSABPRL characterizes itself as a nonprofit “[d]edicated to empowering and educating communities of color.”

         Each year, NYSABPRL hosts a conference for stakeholders and participants from a wide spectrum of New York’s communities. Stakeholders include unions, businesses, faith leaders and church groups, community groups, youth groups and elected officials. The chairperson, an elected New York State Assemblyperson, states that the purpose of the annual NYSBPRL conference is to, inter alia, “advocate for inclusion of communities of color in the state budget process.” The conference includes three days of networking events, at least one political caucus event, educational discussions and an issue forum/workshop. Certain conference sessions have this stated goal: “to inform or educate attendees and our community at large and spark debate among them on important issues that New York State is currently facing. Many of these issues may very well be at the forefront of debates on the floor of our Legislature.”

         A judge must always 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]). A judge’s judicial duties “take precedence over all the judge’s other activities” (22 NYCRR 100.3[A]). Among other restrictions, a judge may not “directly or indirectly engage in any political activity” except in certain enumerated circumstances (22 NYCRR 100.5[A][1]). For example, outside the applicable window period, a judge must not attend political gatherings (22 NYCRR 100.5 [A][1][g]) nor purchase tickets for politically sponsored dinners or other functions, including any such function for a non-political purpose (22 NYCRR 100.5[A][1][i]).

         Despite NYSABPRL’s stated non-political and non-partisan purposes, we believe its annual conference is undoubtedly a legislative gathering. The event is hosted exclusively by the NYSABPRL, whose members and leadership are all elected state legislators.¹ The conference is dedicated to discussions and information on legislative budget access and the process. Indeed, it includes at least one political caucus-hosted meeting and multiple legislator-hosted networking events and issues workshops. Several conference sessions are designed to spark debate about issues that may be before the state legislature for review. Participation by a judge would give the impression that the judge is directly or indirectly engaging in a political process, advocacy and/or providing opinions on legislative topics.

         We have previously advised that a judge may not attend a Task Force Conference organized by a caucus of the state legislature (see Opinion 04-27) or a legislative weekend organized by a caucus of the state legislature (see Opinion 97-152). We also said a judge must not participate in a conference call organized by a federal legislator to organize an event on Capitol Hill, where the program topics are legislative and political in nature (see Opinion 19-138). Here, too, we conclude the judge may not attend or participate.

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¹ We thus distinguish Opinion 06-115 on two grounds. First, it involved an “educational and cultural” conference rather than a primarily legislative gathering. Second, it was co-sponsored by a not-for-profit charitable organization whose membership is not restricted to current or former legislators. For example, its current leadership appears to consist entirely of individuals who have never served in the legislature (see https://somosnewyork.org/board-of-directors/ <accessed 9/15/2020>).