Ethics Probe Redress, Inc.

ALBANY - Thomas Spargo challenges a state inquiry into his political actions while serving as a jurist.

The state Commission on Judicial Conduct has charged state Supreme Court Justice Thomas Spargo with a series of ethical violations accusing him of aggressive political activity that threatens his appearance as a fair and impartial judge.

The commission plans to hold a hearing to determine whether to recommend removal of Spargo, 59, an attorney and election law expert long allied with the Republican Party and a part-time Berne town justice until he was elected to the state Supreme Court last year.

Spargo is challenging the commission on constitutional grounds and does not deny most of the allegations, which include:

Buying food and drinks and handing out $5 vouchers for gasoline to potential voters during his race for Berne town justice.
Allowing his Supreme Court justice campaign committee to pay a $5,000 "consulting fee" to Democratic and Independence Party judicial nominating convention delegates who help ensure his cross-endorsement and uncontested bid for judge last year.
Joining in a "loud and obstructive" demonstration in support of George W. Bush during the electoral recount in Florida in November 2000, despite rules prohibiting judges' involvement in political activity.
Delivering a keynote speech to the Monroe County Conservative Party in May 2001, when he was a town judge and a candidate for state Supreme Court.
Allowing Albany County District Attorney Paul Clyne to hire him as an election attorney in the fall of 2000, even though the district attorney's office regularly appeared before him in Berne Town Court.

The commission had set a hearing on Oct. 21 to decide whether to recommend the admonishment, censure or even a removal for Spargo.

Judicial inquiries at this stage are usually confidential, and the investigation of Spargo came to light only after the judge took the rare step of filing a complaint in federal court on Wednesday to block the commission's hearing.

Spargo said the commission's Code of Judicial Conduct, as it is currently written and applied, violates his constitutional right to free speech. He is seeking to block the hearing because it could result in his removal from office, which he said would irreparably harm his reputation, according to his complaint. Supreme Court justices are elected to 14-year terms and are paid $136,700 a year.

Spargo declined comment on Friday and referred questions to his attorney David Kunz of Albany. Kunz said Spargo is not denying the bulk of the facts in the case, only the commission's interpretation of them.

"The major items there are not in dispute. The real issue is whether they constitute improper conduct or not," Kunz said.

U.S. District Judge Lawrence Kahn on Wednesday granted Spargo's request for a temporary restraining order, suspending the hearing and giving Spargo an opportunity to make his case before U.S. District Judge David Hurd on Oct. 25 in Albany.

The Commission on Judicial Conduct's administrator, Gerald Stern, said he plans to contest Spargo's interpretation of the Code of Conduct in court, but Stern declined further comment on Friday.

Spargo is a well-known election law attorney who worked for Albany Republicans for more than 15 years and more recently for Democrats, too.

In 1990, Spargo appeared before the Commission on Government Integrity, which accused him of engineering a plan for a shopping-mall developer to secretly funnel more than $750,000 into a 1985 Poughkeepsie Town Board race. Also, in 1990, Spargo invoked his Fifth Amendment right not to answer questions that might incriminate him in the Poughkeepsie case. He publicly denied any wrongdoing, the investigation was later closed and the commission took no action.

For decades, state judicial codes of conduct have held judges to a higher ethical standard than other elected officials, barring them from expressing political views and forcing voters to consider them only on their qualifications, legal experts said.

But Albany Law School professor Vincent Bonventre said Friday that Spargo's case in federal court comes at a time when courts are loosening restrictions on judges' political activity.

"This has the potential to be a very big case," Bonventre said. The case could affect the standards set for judges, he said.

He cited a recent U.S. Supreme Court case that struck down Minnesota state judicial codes prohibiting judges from expressing certain political views that the court could use to bar the panel from disciplining Spargo for joining the Florida Bush rally.

Not all the allegations against Spargo are so easily defended, such as the charge that Spargo's campaign allegedly cut checks for $5,000 to judicial nomination delegates, Bonventre said.

Spargo's campaign paid $5,000 to Jane McNally, a delegate to the Democratic Judicial Nomination Convention, after she voted to endorse Spargo, a longtime Republican. Spargo's campaign also paid $5,000 to a consulting firm owned by Thomas Connolly, of the Rensselaer County Independence Party, for his help in securing Spargo's nomination on the Independence line, the commission said.

"There you are getting down to the nitty-gritty political stuff that lay people think is generally seedy, and I think its perfectly fine for states to restrict that," Bonventre said. "I think he has a much stronger argument with regard to those elements of pure political expression."