Opinion 24-66

March 14, 2024

Digest:  A personally appointed court attorney whose official court duties include serving as a small claims arbitrator is a quasi-judicial official and therefore generally prohibited from engaging in political activity.

Rules:   22 NYCRR 50.2(c); 100.5; 100.5(A)(1); 100.5(A)(1)(a); 100.5(A)(1)(c)-(e); 100.5(A)(1)(g); 100.5(A)(2); 100.5(C); 100.6(A); Opinions 20-29; 15-134; 13-133; 12-71; 06-147; 96-29; 90-08.

Opinion:

          The inquiring court attorney is the personal appointee of a full-time judge and a member of the judge’s staff.  As the court attorney’s employment duties include “serv[ing] as a small claims arbitrator,” he/she asks if it is ethically permissible to (1) pass designating petitions; (2) march in parades supporting a political candidate; (3) attend events wearing a candidate’s campaign t-shirt or button; (4) go door-to-door for or with a candidate; (5) donate money to a candidate; and (6) serve on the town political committee.

          Non-judges “who perform judicial functions within the judicial system” must comply with the Rules Governing Judicial Conduct in performing their judicial duties and otherwise must “so far as practical and appropriate” use such rules as guides to their conduct (22 NYCRR 100.6[A]; Opinion 20-29).  We have consistently applied the limitations on political activity contained in Section 100.5 to quasi-judicial officials (see Opinions 20-29; 13-133 [citing prior opinions]).  This is a very broad prohibition, as a judge or quasi-judicial official must not “directly or indirectly engage in any political activity” unless an exception applies (22 NYCRR 100.5[A][1]).  Conversely, where a judge’s personal appointee “does not have a quasi-judicial title nor functions,” their political activity is ordinarily subject to the specific limitations of Section 100.5(C) rather than the broad prohibitions applicable to a judge (see Opinion 12-71; 22 NYCRR 50.2[c]; 100.5[C]). 

          On the facts presented, we conclude that the inquiring court attorney has quasi-judicial functions.  Personal appointees who, as part of their job responsibilities, arbitrate small claims for the courts are quasi-judicial officials, as they perform “judicial functions within the judicial system” (22 NYCRR 100.6[A]; see Opinions 15-134; 13-133). 

          All of the activities described by the inquirer are expressly prohibited political activities under the Rules and our prior opinions (see e.g. 22 NYCRR 100.5[A][1][a] [“acting as a leader or holding an office in a political organization”]; 100.5[A][1][c] [“engaging in any partisan activity” other than participating in own campaign for judicial office]; 100.5[A][1][d] [“participating in any political campaign for any office”]; 100.5[A][1][e] [“publicly endorsing … another candidate for public office”]; 100.5[A][1][g] [“attending political gatherings”]; Opinions 15-134 [cannot pass petition]; 06-147 [may not march in parade for political candidate]; 96-29 [must resign from positions held in a political party]; 90-08 [may not be a member of a political party committee]).  There are no exceptions permitting the inquirer to do them, whether for the judge who employs the inquirer or for another candidate.

          Should the inquirer become a candidate for election to judicial office, he/she may contact the Judicial Campaign Ethics Center regarding permissible activities during the applicable window period in furtherance of his/her own election campaign (see generally 22 NYCRR 100.5[A][2]).