Opinion 04-87

December 2, 2004

Digest:         A newly-elected judge’s intention to use surplus campaign funds to purchase unspecified items for use in the court house at some indeterminate time in the future, is not an adequate basis for keeping the campaign account open beyond the expiration of the Window Period, and, therefore, such funds should be returned to the contributors on a pro rata basis as soon as possible and the account closed.

Rules:          22 NYCRR 100.0(Q); 100.5(A)(5); Opinions 03-109; 00-17 (Vol. XIX); 93-15 (Vol. XI); 90-06 (Vol. V).

Opinion:

         The inquiring judge who was elected in November, 2003 informs the Committee that he/she has unexpended campaign funds that are presently being retained in the judge’s campaign committee account. It is the judge’s “intention consistent with appropriate ethics considerations, to expend these monies to purchase office equipment, furniture and other items for the [court].” The judge has been unable to make such expenditures because “renovations of the new space for this court are just getting underway and the full scope of what will be needed (but which may not be provided through OCA budget allocations) remains unknown,” and apparently will not be known until sometime in 2005. Thus, the judge seeks the Committee’s opinion whether it is proper to keep the campaign account open beyond the expiration of the Window Period (i.e. May 4, 2004), for the purpose stated. 22 NYCRR 100.0(Q).

         On the facts presented, it is the opinion of the Committee, that the judge should not keep the account open but should return unexpended campaign funds to the contributors on a pro rata basis as soon as possible. See Opinions 93-15 (Vol. XI); 90-06 (Vol. V). For, while it is true that the Committee has stated that surplus campaign funds may also be used to purchase various items of office equipment or furniture for use in chambers or the courthouse, which become the property of the court system (see e.g. Opinions 03-109; 00-17 [Vol. XVIII]), that does not mean that the judge may keep the campaign account open for such purpose for a period of more than eight months past the Window Period, when the judge has no knowledge of the necessity for any such purchases and is simply speculating that such a need, may arise.

         Indeed, in those opinions where the Committee stated it is not unethical to use excess campaign funds for such purchases, the inquiring judges set forth specific items that are presently needed or desirable, and sought the Committee’s approval to make those purchases using excess campaign funds. Here, no such specificity can be provided until, at the earliest (if at all), eight months after the close of the Window Period. Thus, what is sought is not approval for the purchase of particular items, but, rather, approval to keep the campaign account open until some unknown time in the future when the necessity (if any) for such purchases can be assessed. Yet, the Window Period has expired, and while there may be circumstances that necessitate keeping a campaign account open beyond that date, the statement of intentions and desires expressed by the inquiring judge is not one of them. In our opinion, this would not be appropriate. Accordingly, the judge should return the surplus funds to the contributors on a pro rata basis, and close the account. This should be done as soon as possible. 22 NYCRR 100.5(A)(5).