New Rochelle Judge Made Illegal Campaign Contribution to City Council Member Barry Fertel in Violation of New York State Judicial Ethics

Judge Susan Kettner appears to have engaged in inappropriate political activity after she was sworn in as a judge earlier this year. Kettner may have violated New York State Judicial Ethics by making a $500 contribution to the campaign of New Rochelle City Council Member Barry Fertel this past April. Mr. Fertel, a Democrat, is running for City Council in District 5 against Republican Ilyse Spertus on November 8, 2011.

Judge Kettner did not respond to emails or messages left at her office. Mr. Fertel did not respond to emails sent to his City Council email address or his campaign address asking if he intended to return the the campaign contribution from Kettner.

Kettner, a Democrat, was elected New Rochelle City Court Judge in 2010. Prior to her run for judge, Kettner ran unsuccessfully for City Council in 2007 as the Democratic candidate. She was appointed to the New Rochelle Zoning Appeals Board by New Rochelle Mayor Noam Bramson, also a Democrat, and chaired the Zoning Appeals Board up until her resignation prior to becoming a judge.

In New York State all judges and non-judge candidates for judicial office are required to abide by the New York State Advisory Committee on Judicial Ethics which publishes a Handbook and issues advisory opinion from time to time. Failure to abide by the rules is considered a violation of judicial ethics and can result in various levels of sanctions ranging from a reprimand to removal from the bench.

Section 100.5 of the New York State Advisory Committee on Judicial Ethics Handbook states that a judge or candidate for elective judicial office will refrain from inappropriate political activity: engaging in any partisan political activity including making a contribution to a political organization or candidate and/or purchasing tickets for politically sponsored dinners or other functions, including any such function for a non-political purpose.

A judge or judicial candidate is only permitted to engage in limited political activity during a “Window Period” which is defined as 9 months before an election or convention and 6 months afterwards. Kettner was elected on November 2, 2010 so her “Window Period” closed on May 2, 2011.

When the window is open she may not make campaign donations except to purchase tickets to fundraisers. After the window closes she is prohibited from all political activity.

Barry Fertel held a fundraiser on May 12, 2011 at the VIP Club in New Rochelle, NY with tickets priced at four levels: Supporter ($75), Sponsor ($125), Patron ($250) and Benefactor ($500).

According to Campaign Finance records on file with New York State, Kettner contributed $500 to the Fertel campaign on April 29, 2011.

It appears these were tickets for the Fertel May 12 Fundraiser. The event is outside the “Window Period” which closed on May 2, 2011. New York State law is clear that a judge who is no longer a candidate within his/her appropriate window period may not attend a political gathering, or any gathering sponsored by a political organization.

• Opinions 92-29 [Vol. IX]; 91-67 [Vol. VII]: A judicial candidate who has been elected as a judge may continue to attend political functions throughout his/her window period, which ends exactly six months after the general election.
• Opinions 91-24 [Vol. VII]; 89-136 [Vol. IV]): A recently elected judge may not attend political event held “six months and one day after the general election”.

The only exception occurs during the “Window Period” and even then there are strict limitations on what a judge or non-judge candidate can do during that period, even more so outside the “Window Period”. A judge or non-judge candidate who is a candidate for public election to judicial office may purchase two tickets to, and attend, politically sponsored dinners and other functions, provided that the cost of the ticket to such dinner or other function shall not exceed the proportionate cost of the dinner or function.

The cost of the ticket shall be deemed to constitute the proportionate cost of the dinner or function if the cost of the ticket is $250 or less.

The ticket price “shall not exceed the proportionate cost” of the event. A ticket price of $250 or less is deemed to be the proportionate cost of the function and therefore judicial candidates may purchase two tickets for no more than, regardless of whether other attendees pay more than $250 per ticket.

Judicial candidates may not purchase tickets at a price higher than the price all other attendees are required to pay because that would be an impermissible political contribution. Further, where tickets are offered at multiple prices, the candidate must purchase those with the lowest price.

Opinion 88-26 [Vol. I] judicial candidates may purchase the lowest priced dinner ticket to the political club fundraiser, but should not purchase the more expensive tickets denominated as ‘Sponsor’, ‘Patron’”].

The lowest priced ticket to the event was $75 so Judge Kettner would not have been allowed to pay more than $150 for a pair of tickets even if the event was held during the Window Period. Because the event was held after the Window Period closed she could not attend and she is not allowed to purchase tickets for an event she does intend to attend as that too would constitute an impermissible political contribution.

Kettner did not respond to Talk of the Sound but conceivably she could try to argue that she purchased the tickets during the Window Period. She might even claim that she did not attend the event.

Neither claim would avoid a violation because a judicial candidate is not allowed to purchase tickets to a political function unless the the candidate “intends and expects to use” the tickets. And in either case, Kettner paid $350 more than the lowest priced tickets making that amount an impermissible political contribution.

It does not matter if Kettner paid using “campaign contributions” or “personal funds” because either may be used to pay for campaign-related goods and services and so the law applies equally to both.

A search of campaign records also shows that Dorothy Kettner, a family member of Judge Susan Kettner, also paid $500 to the Fertel campaign on May 5th. That may also be a violation.

Under the ethics code, a judicial candidate must “encourage family members to adhere to the same standards of political conduct in support of the candidate as apply to the candidate himself/herself” and “prohibit his or her family from undertaking any activities on the candidate’s behalf that the candidate is prohibited from doing himself or herself or which may appear to be the candidate’s indirect activity.

The contribution to Barry Fertel is just one of what may be a series of illegal campaign contributions by Kettner to Democrats since she was sworn in as a judge on January 1, 2011. On March 16, 2011, Judge Kettner made a $100 contribution to the Democratic City Committee of New Rochelle. On January 15, 2011, Judge Kettner made a $125 contribution to the Westchester Democratic Committee. On June 27, 2010, Dorothy Kettner made a $300 contribution to George Latimer’s State Assembly campaign. Depending on the circumstances, these contributions also may constitute violations of New York State Judicial Ethics.

NOTE: This article has been corrected. It originally stated that Kettner served on the Planning Board. She served on the Zoning Appeals Board.