In Opinion 07-09, a judicial candidate asked whether he/she could "be honored" and "speak at" a fundraising event sponsored by a political organization. The committee again advised that a candidate may not be a speaker, guest of honor, or award recipient at a politically sponsored fundraiser, but also advised that the candidate may "provide a 'few words of acknowledgment' when he/she is introduced as a candidate" (Opinion 07-09; see also Opinion 04-141 [offering a similar analysis in the context of charitable fundraisers]).
In Inquiry 12-95(B), the inquirer's participation as a speaker will not be announced in advance of the political fundraising event. In the committee's view, this distinction warrants a different result from its prior opinions cited above.5
If a judicial candidate's participation as a speaker or award recipient is not announced prior to a political fundraising event, the candidate's name and participation is not being used to draw attendees to the event. Thus, there is little, if any risk that the public will conclude that the candidate is permitting his/her name to be used in, or is otherwise implicated in, the fundraising efforts (compare Opinions 03-51; 01-27 [Vol. XIX]). In serving as an unannounced speaker at a political fundraiser during his/her window period, a judicial candidate may speak on behalf of his/her own campaign (see 22 NYCRR 100.5[A][i]) but must not endorse or oppose (other than by running against) another candidate for public office (see 22 NYCRR 100.5[A][e]) and must not personally solicit funds (see 22 NYCRR 100.5[A][h]).
Inquiry 12-95(C) raises the question of whether a judicial candidate who is currently within his/her window period may be an advertised speaker at a politically sponsored event that is not a fundraiser. The committee notes that judicial candidates may attend and speak to gatherings on their own behalf (see 22 NYCRR 100.5[A][i]) and may appear at such gatherings along with other candidates on their slate (see 22 NYCRR 100.5[A][iii]). Thus, the mere fact that the judicial candidate is advertised as a speaker or guest of honor at an event sponsored by a political organization does not, without more, violate the proscription against "permitting his or her name to be used in connection with any activity of a political organization" (22 NYCRR 100.5[A][d]) where, as here, the judicial candidate will be using the speaking opportunity to promote his/her own candidacy for judicial office.
Although advertising a judicial candidate's participation (as speaker, guest of honor, or award recipient) could draw people to the political event, the fact that the event is not a fundraiser minimizes the risk of a public perception that the judicial candidate's name is being used to raise funds for other candidates or the sponsoring political party. Accordingly, there is no reason to prohibit judicial candidates from serving as advertised speakers at non-fundraising political events, as long as the candidate's remarks are consistent with the Rules Governing Judicial Conduct.
Question 2. Use of Campaign Funds to Attend Events That Are Not Hosted by Political Organizations: In Inquiry 12-84 and Inquiry 12-95(D), judicial candidates ask whether they may use campaign funds to attend a variety of events hosted by non-political sponsors, such as bar association dinners or golf tournaments, charitable and civic events and judicial association dinners, throughout their window period, including the six month period following Election Day.
The committee recognizes that judicial candidates need to attend a wide variety of events during their window period in order to connect with prospective voters, supporters, and campaign workers; to otherwise generate awareness of their qualifications and their candidacy; and to thank those who have helped their campaign efforts and/or those who voted for them. Thus, in the committee's view, judicial candidates may promote their candidacy at events hosted by non-political sponsors, including bar association events, where they are likely to find individuals who are interested in improving the administration of justice and, thus, may be willing to support, or who have supported, a judicial candidate's current campaign in a variety of ways.
Campaign funds may be used to attend such events throughout the window period, including the six month period after Election Day, to the extent legally permissible, but only in furtherance of the candidate's judicial campaign, including to express the candidate's appreciation to voters and campaign workers (see e.g., Opinion 10-80 [candidate may use campaign funds to promote his/her candidacy by sponsoring a local softball team]). The committee notes that a judicial candidate "may 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]).
Thus, the candidate should only use campaign funds to attend such events if the candidate determines that he/she will receive fair value for the amount expended for the ticket within the context of his/her campaign, a judgment that the candidate him/herself is in the best position to determine. For example, the mere fact that a ticket price is higher than the sponsor's actual per person event cost does not, in and of itself, constitute a violation of the fair value requirement.
The committee notes that in September 2003, the Commission on Judicial Conduct characterized the use of $710 in campaign funds to attend six post-election, non-political functions as "unjustified," without explaining its reasoning or citing any authority for that specific statement (see 2004 Ann Rep of NY Commn on Jud Conduct, at 153, 155-56).6 In the committee's view, there are valid reasons for a judicial candidate to continue to attend both political and non-political events even after the election, in support of the candidate's recently concluded campaign. In particular, and especially relevant, voters are likely to expect a recently elected judge to attend events in the judge's community post-election to personally thank voters for their support and campaign workers for their time, sacrifice and hard work.