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Opinion 4

In response to a request for an opinion from the Commission by a candidate for election to fill a vacancy in a judicial office, the Commission has considered the provisions of Section (A)(1) of Rule 4.2 which require that:

Judicial candidates . . . shall prohibit officials or employees subject to their direction or control from doing for them what they are prohibited from doing under this Canon, and shall not allow any other person to do for them what they are prohibited from doing under this Canon.

The question propounded to the Commission addresses itself to whether this provision would prohibit, for example, a public official of a municipality from acting on a candidate’s campaign finance committee under Rule 4.2(B).

It is the opinion of the Commission that the provisions of Section B apply only to public officials or employees who are “subject to the candidate’s direction and control”; and, hence, that the provisions of this section would not prohibit an individual from acting on the finance committee of a candidate for judicial office simply because that individual was a municipal officer not in any way subject to the control or supervision of the candidate.

It is difficult to envision how a public official or employee could be subject to the control of a candidate for judicial office who is not the incumbent. However, this section deals with not only the conduct of a non-incumbent but an incumbent as well, and undoubtedly this provision primarily directs itself to the situation where an incumbent judge running for re-election might use those under him and subject to his supervision and direction to carry on campaign activities that he would not be in a position to conduct.

[Pertinent Code of Judicial Conduct provisions: Rules 2.4(B), 4.2(A), 4.2(B). Cross reference to other relevant opinions for review: #5, #56, #58, #106.] 

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