Opinion 24-111

June 20, 2024

Digest: An administrative judge has satisfied his/her ethical obligations by contacting a judge whose name improperly appeared on the invitation to a political fund-raiser, and advising the judge to (a) seek guidance from the Judicial Campaign Ethics Center and (b) object to use of his/her name on the fund-raising invitation and refrain from attending the event.

Rules:   22 NYCRR 100.2; 100.2(A); 100.3(D)(1); Opinions 21-19; 20-133; 12-129(A)-(G); 12-84/12-95(B)-(G); 08-40; 01-99.

Opinion:

          The inquiring administrative judge became aware that another judge’s name improperly appeared on an invitation to an upcoming political fund-raiser.  Although the other judge (Judge B) is within his/her window period for election or re-election to judicial office, the invitation goes beyond permissible activities for a judicial candidate, as it creates an impression that Judge B is participating in fund-raising for a political party and/or another candidate.  The administrative judge contacted Judge B to raise these ethical concerns and encouraged Judge B to “seek guidance immediately” from the Judicial Campaign Ethics Center.  The administrative judge also advised Judge B to object in writing to use of Judge B’s name on the invitation and refrain from attending the event.  The administrative judge asks if he/she has satisfied his/her ethical obligations or whether the judge must take further action.

          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 who receives information indicating a “substantial likelihood” that another judge has committed a “substantial violation” of the Rules Governing Judicial Conduct must take “appropriate action” (22 NYCRR 100.3[D][1]).

Overview of Applicable Standards

          A judge need not conduct an investigation into alleged misconduct and, therefore, may discharge his/her disciplinary responsibilities based on facts already known to the judge without further inquiry (see Opinion 21-19).  As described in Opinion 21-19 (citations omitted):

In general, we have advised that the judge who has first-hand knowledge of all the facts and persons involved in a particular situation is in the best position to determine whether there is a “substantial likelihood” that another judge has committed a “substantial violation” of the Rules. If the judge concludes that either of these two elements is missing, the judge need not take any action. If a judge concludes that there is a substantial likelihood that another judge has engaged in a “substantial violation” of the Rules, the action the judge must take will depend on the nature of the misconduct.

In most instances, even when disciplinary action is required, what action is “appropriate” is left to the judge’s discretion under all the circumstances.  Only when the conduct is truly egregious -- for instance, “if the misconduct is so serious that it calls into question a judge’s fitness to continue in office” (Opinion 21-19) -– have we said it must be reported to the Commission on Judicial Conduct.

          Otherwise, “if the misconduct, although substantial, does not reach that level of seriousness” (id. [citations omitted]), we advised that:

the judge has the discretion to take some other, less severe action than reporting the conduct to a disciplinary authority. “[W]hat determines ‘appropriate action’ depends upon all the surrounding circumstances known to the judge, including an assessment of whether the individual, if confronted by the judge, shows genuine remorse, contrition, or ignorance of a rule; whether the individual has any history of unprofessional or other conduct in violation of the Rules; or any other relevant conduct or factor known to the judge.”

Discussion

          Here, the administrative judge personally reviewed the invitation announcing Judge B’s attendance at the political fund-raiser prior to the event, which satisfies the “substantial likelihood” prong.  Moreover, the administrative judge is concerned that the invitation creates an appearance that Judge B’s name and participation are being used impermissibly to raise funds for a political party and draw attendees to the event (see Opinions 20-133; 12-84/12-95[B]-[G]).  As it appears that the administrative judge has concluded that the two-prong test is met, the only question for our consideration is what constitutes “appropriate action” under the circumstances. 

          Here, the administrative judge has already advised Judge B to seek guidance from the Judicial Campaign Ethics Center, to object to use of his/her name on the invitation, and to refrain from attending the event.  Moreover, the administrative judge was able to address the issues before the event took place, so that Judge B could take timely steps in mitigation.  Nor is there any indication in the inquiry that Judge B approved the invitation in advance or planned to disregard the administrative judge’s guidance. 

          On the facts presented, we conclude that the administrative judge has satisfied his/her ethical obligations. 

General Reminder: Political Fund-raisers

          While our decision necessarily focuses on the administrative judge’s disciplinary obligations under Section 100.3(D)(1), we here reiterate a few basic principles as a reminder.  Clearly, a judicial candidate’s campaign committee may host and advertise events to raise funds for the candidate or promote his/her candidacy during the applicable window period, as permitted by the rules and prior opinions (compare Opinions 12-129[A]-[G] [free “meet and greet” permitted]; 01-99 [joint fund-raiser with another judicial candidate on the same slate permitted] with Opinion 08-40 [joint fund-raising activity with candidate for non-judicial office impermissible]).

With respect to an event sponsored by political parties or other candidates, however, a judicial candidate “may not be a speaker, guest of honor, or award recipient at a politically sponsored event, unless either (a) the event is not a fund-raiser, or (b) the candidate’s participation is unannounced prior to the event” (Opinion 12-84/12-95[B]-[G]; see Opinion 20-133 [judicial candidate may not attend or participate in a fund-raising event for a slate of judicial and non-judicial candidates, where the candidate’s name is displayed on the invitation]).  As we have explained, when a candidate’s participation is announced prior to a political party’s fund-raiser, it “creates an appearance that the [candidate is] directly or indirectly helping raise funds for the political party” (Opinion 20-133).  Given the prominence of Judge B’s name and the significant proportion of donation-related content compared to the overall invitation, the administrative judge apparently concluded that the invitation improperly created an appearance that Judge B’s name and participation were being used to raise funds for a candidate for non-judicial office and/or the political party and draw attendees to the event.