Opinion 04-06

January 29, 2004

MODIFIED BY OPINION 06-162

Digest:         A judge must return unexpended campaign funds to contributors on a pro-rata basis, or, under the circumstances, may expend the funds to purchase furniture to improve the comfort of jury rooms used by jurors in the judge’s cases.

Rules:          Election Law section 14-130; 22 NYCRR 100.5(B)(5); Opinions 01-81; 00-17 (Vol. XVIII); 98-139 (Vol. VII); 96-71 (Vol. XIV); 95-36 (Vol. XIII); 93-56 (Vol. XI); 93-15 (Vol. XI); 93-04 (Vol. X); 92-104 (Vol. X); 91-79 (Vol. VII); 91-12 (Vol. VII).

Opinion:

         A recently re-elected judge has been advised by his/her re-election committee that a surplus exists in the campaign fund. The judge inquires whether the campaign committee may be directed to refund to any donor that portion of any campaign contribution that exceeds $500.00; and whether the committee may be directed to donate the balance of the campaign funds to the Office of Court Administration to be used to purchase furniture to improve juror comfort in the courthouse in which the judge presides.

         The opinions of this Committee have consistently been of the view that unexpended or surplus campaign funds must be disposed of by returning the funds to the contributors on a pro rata basis. Opinion 93-15 (Vol. XI); 91-12 (Vol. VII); 96-71 (Vol. XIV). Therefore, in response to the judge’s first inquiry, he/she should direct the Committee to refund the surplus campaign funds to the contributors on a pro rata basis. But this Committee has also previously stated that unexpended funds may also be used to purchase office equipment or furniture to be used by the judge directly in the performance of judicial duties. However, any items purchased with surplus campaign funds become the property of the New York State Unified Court System. Opinions 91-79 (Vol. VII); 92-104 (Vol. X); 93-04 (Vol. X); 93-56 (Vol. XI); 95-36 (Vol. XIII); 98-139 (Vol. XVII); and 00-17 (Vol. XVIII). Such purchases are not in contravention to either Election Law section 14-0130 or 22 NYCRR 100.(B)(5), which prohibits the expenditure of campaign funds for personal use unrelated to the holding of public office.

         Since the judge is permitted to purchase office furniture with the surplus campaign funds, which must then become the property of the New York State Unified Court System, he/she may likewise expend surplus funds for the purchase of furniture to improve juror comfort in the jury room(s) which the judge uses for juries in cases over which he/she presides. Such an expenditure obviously constitutes a public, not a private benefit. When the committee so spends leftover campaign funds, the judge must see to it that the furniture is donated to the Unified Court System. This may be accomplished by simply writing a letter to the district administrative judge identifying the donated item(s).

         If, thereafter, there are leftover campaign funds, the judge must return those funds on a pro rata basis to all contributors, regardless of the amount of each donor’s contribution. In other words, the judge may not arbitrarily set a monetary limit on which donors will and will not receive a refund.

         Lastly, the disposition or the pro rata return of all leftover funds or the closing of the campaign account should be done as soon as possible. Opinion 01-81.