Sullivan County Democrat
Callicoon, New York
January 22, 2010 Issue
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Jeanne Sager | Democrat

AT AN EVENT last month, Chief Assistant District Attorney Jim Farrell, right, listens as retiring DA Steve Lungen endorses Farrell’s candidacy to become his successor.

Lungen can endorse successor candidate

By Dan Hust
MONTICELLO — When Sullivan County Assistant District Attorney Jim Farrell made his bid for the District Attorney’s seat official on February 11, current DA Steve Lungen gave him his full endorsement.
Those watching the announcement on the steps of the county courthouse in Monticello were actually witnessing a relatively rare moment in county politics – a retiring DA publicly stumping for his replacement.
Lungen, after all, has been in office for nearly three decades, winning term after term to serve as the county’s chief prosecutor.
But was he unfairly lending the weight and prestige of his office to Farrell’s candidacy, at the expense of fellow Republican contender Mike McGuire or Democratic candidate Glenn Kroll?
According to the NYS Bar Association Committee on Professional Ethics, no.
“Where the district attorney is not a candidate for re-election, there would be no per se appearance of using the public office to advance an incumbent’s professional success or personal interests,” the committee wrote in an opinion published in 1983. “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.”
Lungen agrees, remarking that he believes that “after 28 years in office, I would have some credibility with the people in the county.”
“I think I’m allowed to state my opinion. I’m not in the election cycle anymore,” he said. “... That doesn’t mean they have to accept my opinion, but I think they would want to hear it.”
Yet the NYS District Attorneys Association, of which Lungen sits on the executive committee, would seem to prohibit such. According to the Code of Conduct posted on its website, district attorneys should not endorse candidates, speak at political functions, or “act in a manner which could be interpreted as lending the prestige and weight of their office to the political party or function.”
The only caveat for a DA would seem to be one sentence in the code: “However, this shall not prohibit normal political activity during the course of a campaign year.”
But Lungen’s not campaigning for himself. He’s campaigning for his chief assistant.
Lungen said the fact that he’s not running himself is immaterial – this would have been a campaign year for him had he not chosen to retire.
A spokesperson for the president of the NYS District Attorneys Association, Richmond County Chief Assistant DA Dan Master, agreed that Lungen was within his rights – but for different reasons.
For one, the Code of Conduct was not designed to address what he said were relatively rare and narrowly-defined circumstances.
“This is a much broader rule,” he explained of the code.
Neither does it have the force of law. However, the state Bar Association – which can disbar attorneys, effectively ending their careers in New York – had already made a determination more than 25 years ago.
Members of the Committee on Professional Ethics agreed that while district attorneys must refrain from “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,” retiring DAs can endorse a potential successor.
That happened just last year in upstate Erie County, where retiring DA Frank Clark gave his blessing to Frank Sedita, who ultimately won the seat in November.
However, the Committee on Professional Ethics forbids DAs from endorsing candidates in any other race. And writers of the 1983 opinion added that a DA’s 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.”

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