Opinion: 98-80
 
June 19, 1998
 
 
 
 

Digest:    A judge may not allow the entry fee to a charitable fund-raising event to be paid out of the campaign funds of the judge's spouse, who is an elected official and is chairperson of the event, but the judge may attend the event.
 

Rule:    22 NYCRR 100.2; 100.4(C)(3)(b)(ii);
            100.4(D)(5); 100.5(A)(1).
            Opinion 95-24(Vol. XIII)
 
 
 

Opinion:

            A judge seeks the opinion of the Committee concerning attendance at a charitable fund-raising event of which the judge's spouse is honorary chairperson. The inquiry is as follows:

I am a full time judge and my [spouse] is an
elected county official who has served as the
honorary chairperson for the [name of charity]
each year. Prior to my appointment I have played
in the tournament and attended the dinner for this
event. Can I continue to do so? If so, can my entry
fee be paid for by my [spouse's] campaign funds?
            Section 100.4(C)(3)(b)(ii) of the Rules Governing Judicial Conduct provides, in part, that a judge "may not be a speaker or guest of honor at an organization's fund-raising event, but the judge may attend such event." In the Committee's view the fact that the judge's spouse is an elected official of the county does not mean that the judge may not attend the event. That is, the event is a charitable fund-raiser, not a political gathering, which the judge would be prohibited from attending. Thus, it is not improper for the judge to attend this particular charitable fund-raiser.

            However, the Committee does not believe that it is proper for the judge to allow the entry fee to be paid for out of the spouse's campaign funds. In effect, the judge, who is not a candidate for judicial office, would be receiving a financial benefit from a political organization or group, i.e., the political supporters of the spouse. A judge who is not running for judicial office should not be the recipient of campaign funds originally intended for another. Acceptance of the benefit could readily be perceived as involving the judge in political activity in violation of section 100.5(A)(1) of the Rules Governing Judicial Conduct. ("Neither a sitting judge nor a candidate for public election to judicial office shall directly or indirectly engage in any political activity except ...." 22 NYCRR 100.5[A][1].)

            Further, this does not appear to be the kind of gift that a judge should accept under section 100.4(D)(5) of the Rules. In Opinion 95-24 (Vol. XII) the Committee advised against a judge accepting a movie pass. Despite the absence of a specific prohibition, the Committee concluded that there would be an appearance of impropriety: "It is but a small reasoned step from knowledge of the gift to the assumption that there is a special or influential relationship between the donor and the receiver of the gift." Ibid. Here, too, there would be an appearance of impropriety, the effect of which is heightened by the political source of the gift. 22 NYCRR 100.2. Accordingly, the judge should not allow the entry fee to be paid from the spouse's campaign funds.