Opinion 05-21

March 10, 2005

Digest:         A judge who has been cross-endorsed for re-election may, before the election, return to donors a pro rata share of most of the unused campaign funds while retaining a small sum for possible use during the Window Period, at the conclusion of which the balance remaining should be returned.

Rules:          22 NYCRR 100.5; Opinions 92-94 (Vol. X); 91-12 (Vol. VII).

Opinion:

         A judge who has been cross-endorsed for re-election, inquires whether, in light of having received a cross-endorsement, the judge may return to donors prior to the election the bulk of the surplus campaign funds. The judge also asks whether the campaign manager may return to donors any checks, received after the cross-endorsement, which have not yet been deposited in the campaign account. The judge also wishes to retain a portion of the campaign funds to be used during the Window Period.

         The Committee has previously advised that unexpended, surplus campaign funds should be disposed of by returning those funds to contributors on a pro rata basis. 22 NYCRR 100.5, Opinions 92-94 (Vol. X), 91-12 (Vol. VII). The Committee now concludes that, prior to election day, it is not inappropriate for a judicial candidate, in light of having received a cross-endorsement, to distribute most of the unexpended or surplus campaign funds to the candidate’s donors.

         In addition, all checks containing contributions received after the cross-endorsement should be deposited into the candidate’s campaign account. Thereafter, the campaign funds, which the candidate wishes to dispose of prior to the election, should be distributed on a pro rata basis. Any campaign funds which the candidate retains and which are unexpended during the remainder of the Window Period should thereafter also be distributed to donors on a pro rata basis as soon as is practicable. 22 NYCRR 100.5.