Manhattan Surrogate Nora Anderson (See Profile) should be censured for accepting improper contributions during her 2008 campaign, the state Commission on Judicial Conduct announced yesterday.
Although Anderson was acquitted by a Supreme Court jury of breaking the state’s Election Law by taking contributions above the legal limit for the 2008 primary from her patron and former employer Seth Rubenstein, the commission found her conduct nonetheless violated judicial ethics rules.
"A judge’s election is tarnished and the integrity of the judiciary is adversely affected by misconduct that circumvents the ethical standards imposed on judicial candidates and provides an unfair advantage over other candidates who respect and abide by the rules," the commission concluded.
The panel added, "In such cases, we must consider whether allowing the respondent to retain his or her judgeship would reward misconduct and encourage other judicial candidates to ignore the rules, knowing that they may reap the fruits of their misconduct."
The commission determined that a more serious sanction was not merited because Anderson was an "inexperienced" judicial candidate who relied on the faulty advice of more knowledgeable advisers, including Rubenstein, an estate lawyer and litigator in Brooklyn.
The commission also noted that Anderson had accepted responsibility for violating the rules and agreed in a stipulation that she be censured for her actions.
According to the commission, Anderson, 60, accepted a $100,000 gift and a $150,000 loan from Rubenstein during the 2008 Democratic primary. She contributed the donations to her campaign in her own name in financial filings with the Board of Elections.
In addition, she and her husband, Vincent Levell, an attorney in the Unified Court System, failed to report the $150,000 loan from Rubenstein on their financial disclosure filings with the court system’s Ethics Commission, the Commission on Judicial Conduct said.
The panel noted that under the Election Law formula calculated according to the number of enrolled voters in a primary candidate’s party, contributions to the Manhattan surrogate’s campaign in 2008 were limited to $33,122.50, except for donations that candidates made to themselves.
Prosecutors contended that Anderson reported the $250,000 as her own contribution to her campaign to circumvent limits.
A Manhattan jury acquitted Anderson and Rubenstein in 2010 of two counts of offering a false instrument for filing (NYLJ, April 2, 2010).
Anderson, who had been suspended beginning Jan. 1, 2009, pending the outcome of the criminal case, assumed her seat on the bench a few days after the verdict was announced.
The commission said it put its investigation on hold pending the outcome of the trial.
Anderson won the primary with 28,638 votes against 15,305 votes for John Reddy Jr., a Manhattan attorney, and 14,758 votes for Supreme Court Justice Milton Tingling Jr. (See Profile). She faced no opposition in the general election that fall.
Different Standards of Proof
The commission said it is "well-established" that the same conduct that resulted in the acquittal of criminal charges can still be the subject of disciplinary action by the commission.
"The standard of proof is different, and ethical standards are different from those in the Penal Law," the commission wrote, citing Matter of Cohen, 74 NY2d 272 (1989).
The commission concluded that it could not say definitively whether the $250,000 Anderson received from Rubenstein tipped the scales in her favor.
Anderson "cannot demonstrate that she would have won the primary without the Rubenstein money, and the Administrator cannot demonstrate that she would have lost without it," the commission decided.
But the panel noted that Anderson agreed with commission Administrator Robert Tembeckjian that it was "reasonable for the public to perceive" that Rubenstein’s infusion of funds "influenced the campaign" to some extent.
According to the commission’s decision, Anderson reported spending $610,721 on her campaign before the date of the primary compared with $606,486 spent by Reddy and $126,344 spent by Tingling.
Anderson told the commission that she has repaid $14,000 of the $150,000 loan so far.
The commission did not sustain a second charge against her for holding a $1,000-a-plate post-primary fundraiser to try to erase her campaign debt in violation of election rules.
The panel wrote that Anderson believed the ban on post-election fundraising applied to the general election and not prior to it.
Tembeckjian said in an interview that he knows of at least two cases on record in which judges—Brooklyn Supreme Court Justice Jerome Cohen and Mount Kisco Town Court Justice Vincent Cerbone—were recommended for removal by the commission for the same actions that brought an acquittal of criminal charges.
"The standard of proof is ‘beyond a reasonable doubt’ for criminal charges and in an ethics case, it is necessary to prove by a ‘fair preponderance of the evidence’ that an ethics rule has been violated," Tembeckjian said yesterday. "It is possible for a jury to conclude that the prosecution did not prove beyond a reasonable doubt that a crime was committed, but the same behavior can establish that an ethical rule was violated."
Tembeckjian said that he did not make a formal recommendation in Anderson’s case but agreed that censure was the proper result.
Anderson’s attorney, David Godosky of Godosky & Gentile, said it was important to remember that the commission found there was "no intention to violate the letter of the Election Law" on Anderson’s part.
"The surrogate is happy to have this matter from several years ago closed so she can continue to do the work she has been doing for the Surrogate’s Court," Godosky said.
Commission Chairman Thomas Klonick, Vice Chairwoman Terry Jane Ruderman and members Rolando Acosta (See Profile), Joseph Belluck, Richard Emery, Paul Harding, Nina Moore, Karen Peters (See Profile) and Richard Stoloff joined in the ruling.
Member Joel Cohen took no part in the deliberations.
Anderson, one of two surrogates in Manhattan, won a 14-year term that runs through 2022. Surrogates make $160,000 a year.
@|Joel Stashenko can be contacted at email@example.com.