In response to a story first reported here on Talk of the Sound, New Rochelle City Judge Susan Kettner released an email to WVOX which she says was sent to the Treasurer of the Friends of Barry Fertel Campaign Committee. The email was read over the air earlier today.
In the email, Kettner acknowledged that a $500 campaign donation made to New Rochelle City Council Member Barry Fertel was illegal and that she had requested the return of the full amount of the check. Kettner claims that she believed that up until May 2, 2011, four months after she was sworn in as a judge, she would continue to be able to function as a private citizen. On what basis she should believe that is unclear.
Like all individuals who are seeking state-paid elective judicial office, Kettner was required to a complete a two-hour judicial campaign ethics training program. This requirement is specified under New York State law (22 NYCRR 100.5(A)(4)(f); 100.6(A); N.Y. Rule 8.2(b). For the elections held on November 2, 2010, the course was offered at Pace Law School on April 26, 2010, June 9, 2010 and August 25, 2010. The course covers Rules Governing Judicial Conduct, Professional Responsibility, the Judicial Campaign Ethics Handbook, Advisory Opinion on Judicial Ethics.
The training materials provided to judicial candidates repeatedly make clear that once an individual becomes a candidate for elective judicial office that they are governed by the New York State judicial ethics code. In Kettner's case she won her election and was sworn in as a judge. The idea that Susan Kettner thought that she could "function as a private citizen" at any point after becoming a judicial candidate is simply not credible.
Kettner's email confirms that the purpose of the $500 check was to purchase two tickets to a fundraiser for Barry Fertel on May 12, 2011. That being the case, Kettner's email is an admission to multiple violations of New York State laws governing judicial ethics. A judge or judicial candidate is never permitted to make a campaign contribution except to purchase tickets to a fundraiser and this may only occur during a limited period of time.
Judges and judicial candidates are severely restricted from engaging in political activity except under certain conditions during a limited period of time before and after an election -- the "Window Period" (the period 9 months before a convention, primary or general election and 6 months after a general election). Kettner was elected on November 2, 2010 so the window period ended on May 2, 2011. During that time Kettner was not allowed to make campaign contributions except to buy tickets to fundraisers for no more than $250 per ticket unless tickets were sold for less.
Fertel held a fundraiser on May 12, 2011 where he sold tickets for as low as $75 so, regardless of when she purchased the tickets, Kettner made an impermissible political contribution by giving $350 more than allowed under the ethics rules. If she purchased the tickets but did not use them that is an impermissible political contribution. If she went to a fundraiser after May 2, 2011, then she engaged in impermissible political activity. In other words, she is damned if she did and damned if she didn't. She has no way out of having to cop to multiple ethics violations. Not a great way to begin the first year of what is supposed to be a ten-year term as city judge.
Kettner's email failed to address additional contributions she made in the months after being sworn in a city court judge nor did she address contributions made by her mother. Family members are also covered under New York State judicial ethics laws.
Kettner's email, as read over the WVOX airwaves, said:
Ms Meridith A. Hilton
Friends of Barry Fertel Campaign Committee
Today I was advised that my personal check to the Fertel Committee on April 29th, 2011 was not permissible under judicial regulations. We are in agreement that the full amount of the check will be returned to me to correct this matter.
It was my initial belief that I had a six month period from the date of my election as city court judge, that being November 2nd, 2010, before I would become ineligible to participate in any political activities. I thought in the time prior to May 2, 2011, I would be able to function as a private citizen.
The question was raised earlier today. I sought and received advice from an individual with detailed knowledge of the restrictions. They advised me that despite the fact that the contribution was sent before the May 2nd deadline the contribution was not permissible thus return of the check is required.
Thank you for your cooperation
The key word here is "despite".
Kettner says she was advised by an "individual with detailed knowledge of the restrictions" that the contribution was illegal "despite the fact that the contribution was sent before the May 2nd deadline". At no time is a judge or judicial candidate permitted to make any campaign contribution except to purchase tickets for a fundraiser so the only reason the date of May 2nd would apply is if she had purchased tickets which, as noted above, is a tacit admission to multiple ethics violations.
Kettner also says that she believed that she a six month period during which she was permitted to participate in any political activities like any other private citizen. It is inconceivable that a judicial candidate would read the law, study the ethics rules, take the ethics course and come away with the understand that he or she is free to do whatever they want regarding political activity or political contributions during the "Window Period".
Kettner will have the opportunity to explain her supposed confusion on judicial ethics at some point soon. A copy of the original article on Talk of the Sound was sent (by me) the New York State Advisory Committee on Judicial Ethics which has confirmed receipt.