Morgenthau Plans to Endorse Vance; Morgenthau’s Office Declines to Comment About Whether He Actually Can

The plans are all set for Manhattan District Attorney Robert Morgenthau to announce his endorsement of candidate Cy Vance to succeed him—11 a.m. tomorrow on on the steps of the New York County Supreme Court at 60 Centre Street—but his office wouldn’t address a question about whether the endorsement is actually legal.

There have been reports that Morgenthau may be prohibited by law from endorsing anyone, since he’s a sitting district attorney.

When asked for comment, a spokeswoman in Morgenthau’s office, Alicia Maxey Greene, asked for the questions in writing. Then she declined to comment.

A spokesperson for Vance said there was no prohibition on Morgenthau endorsing, since he is retiring. The spokesperson cited language in a 1983 court ruling. The relevant text is below:

Opinion 552 — 10/31/83 (35-83)

New York State Bar Association Committee on Professional Ethics

October 31, 1983

Topic: Prosecuting attorneys; political activities; endorsement of successor candidate.

Digest: Incumbent district attorney not running for reelection may endorse a successor candidate.

Code: Canon 9; EC 7-13, 8-6, 8-8, 9-1, 9-2, 9-6.

Clarifies N.Y. State 272 (1972) and N.Y. State 537 (1981)

QUESTION

May a district attorney, who is not a candidate for reelection, publicly endorse a successor candidate?

OPINION

This Committee has consistently recognized the “basic incompatibility between the duties of a public prosecutor and partisan politics” and the ethical impropriety of prosecutors engaging in political activities that
utilize their “`public position to further [their] professional success or personal interests’.” N.Y. State 513 (1979), quoting from ABA 192 (1939); and see, e.g., N.Y. State 537 (1981), N.Y. State 476 (1977), N.Y. State 273 (1972), N.Y. State 272 (1972), N.Y. State 264 (1972), N.Y. State 241 (1972) and N.Y. State 217 (1971). Prosecutors should “avoid conduct which may lead the public to conclude that [those] in such a position utilize [their] public position for [their] personal
interests” and “must forego active campaigning for candidates for public office in order that [they] may properly discharge the obligation of
[their] . . . office.” N.Y. State 537 (1981). As we also pointed out in N.Y. State 476 (1977), “the rule is designed to avoid the appearance of impropriety, rather than impropriety per se,” and is thus subject to
appropriate exceptions. See also N.Y. State 273 (1972); Canon 9, EC 7-13, 8-8, 9-1, 9-2 and 9-6.

The situation here presented is one that on balance appears to justify a limited exception to the normal rule that would make a partisan
political endorsement inappropriate. Where the district attorney is not a candidate for reelection, there would be no per se appearance of using the public office to advance an incumbent’s professional success or
personal interests. Where there is no appearance of impropriety, there is
no reason why the electorate should not have the retiring district attorney’s views as to which candidate is better or best qualified to
succeed to the office. This exception would not, however, be applicable to the endorsement of candidates for other offices, or in situations where the retiring district attorney is a candidate for some other
office.

Should a retiring prosecutor choose to endorse a successor’s candidacy while still in office, his endorsement should be based upon his
perceptions of the candidate’s qualifications, not upon personal or partisan political considerations. Furthermore, such an endorsement would be inappropriate even where based upon honest perceptions of
qualifications, if there is any substantial appearance of also being based upon personal or partisan political considerations. Cf. EC 8-6.

For the reasons stated, and subject to the foregoing limitations, we answer the question posed in the affirmative.

UPDATE: Greene called to say she didn’t have a hard time answering the question, but simply was unable to since it’s a campaign issue.

Morgenthau Plans to Endorse Vance; Morgenthau’s Office Declines to Comment About Whether He Actually Can