Opinion 21-36

March 11, 2021

Digest:         A judge who purchased and used wooden frames for lawn signs in a now-concluded judicial campaign: (1) may not lend or donate the frames for use in another candidate’s campaign but (2) may use the frames in the judge’s own future campaign(s) for judicial office. 

Rules:          Election Law § 14-130; 22 NYCRR 100.0(Q); 100.5(A)(1); 100.5(A)(1)(c)-(d), (h); 100.5(A)(2), (5)-(6); Opinions 14-148; 12-172; 97-103; 88-89.

Opinion:

         The inquiring judge purchased and used over $2,500 worth of wooden frames for lawn signs in their most recent election campaign. Now that the judge’s window period is over, the judge asks if it is ethically permissible to allow the judge’s first-degree relative access to these frames. The judge understands that the relative would allow another individual seeking elective office to use these frames in their upcoming campaign. The judge would have absolutely no involvement in selecting the recipient and would direct the relative not to use the judge’s name in connection with any endorsements. Alternatively, the judge asks if it is permissible to store the frames for use in the judge’s own anticipated future campaign(s) for judicial office.

         A judge or non-judge candidate for elective judicial office may personally participate in their own campaign for judicial office during the applicable window period, subject to limitations (see 22 NYCRR 100.0[Q] [defining “window period”]; 100.5[A][1][c]; 100.5[A][2]). For example, judicial candidates must not participate in any political campaign or any partisan political activity on behalf of other candidates (see 22 NYCRR 100.5[A][1][c]-[d]); must not make “a contribution to a political organization or another candidate” (22 NYCRR 100.5[A][1][h]); must not “use or permit the use of campaign contributions for the private benefit of the candidate or others” (22 NYCRR 100.5[A][5]; Election Law § 14-130); 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” (22 NYCRR 100.5[A][6]). Moreover, the rules prohibit a judge or judicial candidate from “directly or indirectly” engaging in any prohibited political activity, unless an exception applies (22 NYCRR 100.5[A][1]).

1. Lending or Donating Leftover Frames for Use in a Political Campaign

         The prohibition on making contributions to any political organization or candidate applies to in-kind as well as monetary contributions. For example, we said the $500 annual limit on a judge’s personal appointee’s political contributions applies to the proposed “donation of office space to a political party” (Opinion 97-103). Thus, where the fair market value of the office space and related benefits would exceed $500, a judge may not permit their personally appointed law clerk to donate the space to a political party (see id.).¹

         Accordingly, we conclude the judge’s leftover wooden frames for lawn signs may not be directly or indirectly donated to another candidate’s political campaign (see 22 NYCRR 100.5[A][1][h]).

2. Retaining Leftover Frames for Use in Judge’s Own Future Judicial Campaigns

         In general, judicial candidates with more than $2,500 in unexpended campaign funds after conclusion of their window period must make “one reasonable, bona fide attempt to return all the funds pro rata to contributors” (Opinion 16-29/16-50). Although the judge advises that the value of these reusable wooden frames exceeds $2,500, we believe it is neither customary nor practicable to attempt to “return” campaign-related goods such as lawn sign frames pro rata to contributors. Nor do we believe it is reasonable to require candidates to sell them and distribute the proceeds. We thus conclude the “pro rata return” rule is inapplicable here.

         Regardless of the amount left over, a judicial candidate may not use, retain, transfer, or “roll over” campaign funds raised in one campaign for use in another campaign (see e.g. Opinions 14-148; 12-172; 88-89). As explained in Opinion 14-148 (citations omitted):

The Committee has consistently advised that funds raised for one judicial campaign may not be transferred or retained for use in another judicial campaign, whether for the same or a different office, even if the donors consent. Of particular note, the Committee reasoned that a donor who supported a candidate against one opponent “may not support [him/her] against a different opponent.”

Indeed, this prohibition applies even when a judicial candidate’s campaign window periods overlap - whether for two different judicial positions (see Opinion 12-172) or for the “same” position in consecutive years (see Opinion 14-148). In these instances of overlapping window periods, we nonetheless permitted candidates to make certain “generically useful purchases” during the applicable window period which could be used in either campaign (see Opinions 14-148; 12-172).²

         Here, of course, the inquiring judge has already purchased and used the “generically useful” items at issue, i.e. wooden frames for lawn signs. We do not believe that campaign contributors would expect a judicial candidate to destroy generically useful purchases such as wooden frames after using them in a single judicial campaign, assuming they are still in good condition and the candidate is willing and able to store them. To the contrary, we believe campaign contributors would expect candidates to exercise reasonable, common-sense stewardship over goods purchased with campaign funds, to the extent practicable.

         Accordingly, we conclude this judge may keep the wooden frames for possible use in the judge’s own future campaign(s) for judicial office.

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¹ The context of Opinion 97-103 suggests that temporarily lending a valuable asset to a political organization, without charge, is an impermissible contribution under Section 100.5(A)(1)(h), even when there is no intention to permanently transfer title to the asset.

² We note that any such purchases must still comply with the fair value rule (see 22 NYCRR 100.5[A][6]) and are subject to generally applicable considerations such as good-faith and reasonableness.