Opinion 06-162

April 19, 2007

Digest:         (1) A judge must make every reasonable effort to return unexpended campaign funds directly to contributors on a pro-rata basis. (2) A minimal amount of unexpended campaign funds may be used to purchase items not otherwise provided by the Unified Court System or the municipality, for use in the performance of the judge’s judicial duties.

Rules:          22 NYCRR 100.0(Q); Opinions 04-06; 03-109; 03-61; 98-139 (Vol. XVII); 98-06 (Vol. XVI); 95-36 (Vol. XIII); 93-56 (Vol. XI); 93-19 (Vol. XI); 93-04 (Vol. X); 92-104 (Vol. X); 91-79 (Vol. VII); 91-12 (Vol. IX); 87-16 (Vol. I).

Opinion:

         A judge inquires about the permissible use of approximately $10,000.00 in unexpended campaign funds, following the judge’s successful election. Specifically, the judge wishes to use these funds to purchase: 1) a desk and chair; 2) a laptop computer; 3) a cell phone; 4) a television; and 5) a fax machine.

         A judicial candidate must make every reasonable effort to return unexpended campaign funds to contributors on a pro-rata basis. Opinions 03-61; 91-12 (Vol. VII); see also 1995 Annual Report of the Commission on Judicial Conduct at 134; 2004 Annual Report of the NYS Commission on Judicial Conduct at 153. Nevertheless, if the remaining unexpended funds are de minimis or otherwise so limited that, under the circumstances, returning the balance to contributors will be significantly impracticable, these funds may be used to purchase items which the court system or municipality does not otherwise provide for use in the judge’s performance of judicial duties. In determining whether it will be impracticable to return the unexpended campaign funds to donors, the judicial candidate may consider factors such as the total number of donors and the cost of returning the funds. Any items purchased with unused campaign funds, under these limited circumstances, become the property of the New York State Unified Court System.

         In prior opinions, this Committee stated that candidates retaining unexpended campaign funds were permitted to purchase a variety of items, including computers, word processors, microphones, answering machines, judicial robes and office equipment. Opinions 04-06; 03-109; 98-139 (Vol. XVII); 95-36 (Vol. XIII); 93-56 (Vol. XI); 93-04 (Vol. X); 92-104 (Vol. X); 91-87 (Vol. VIII); 91-79 (Vol. VII). The assumption underlying these opinions was that a modest amount of funds would be used for the purchase of one or two items. The present inquiry and others that have more recently come to the Committee’s attention, however, reveal an unintended interpretation of our prior opinions. In light of these inquiries, the Committee now re-considers and clarifies its prior opinions on the subject.

         It is not appropriate for a judge to use significant amounts of unexpended funds for the purchase of numerous items, or items which the court system or municipality readily provide. The instant inquirer has a significant amount of unexpended funds, i.e., approximately $10,000.00. Accordingly, Opinion 99-71 (Vol. XVIII), which addresses the proper use of de minimis unexpended funds, is inapplicable. The inquiring judge also considers purchasing several items which may duplicate what the Unified Court System already provides, or items otherwise inappropriate for purchase. Therefore, here, and particularly given the significant balance of unexpended funds, this judge must make every reasonable effort to return these funds to contributors, pro-rata.

         We now determine that a small amount of unexpended campaign funds may be used for the purchase of items, such as a modestly-priced laptop, which are not otherwise provided by the court system or the municipality if they are necessary for the performance of judicial duties. See Opinion 00-17 (Vol. XIX); 91-87 (Vol. VIII).

         Conversely, after reconsidering our prior opinions, we believe the following items should not be purchased with unexpended campaign funds: (a) a cell phone or any other item requiring an ongoing service agreement billed to the Unified Court System or municipality, or (b) a television. We now overrule Opinions 03-109, 02-27 and 92-104 (Vol. X) to the extent they differ with this view.

         We reiterate: it is inappropriate for a judge to purchase items the Unified Court System provides. For instance, a fax machine, a desk, and a chair will be provided by the Unified Court System, and therefore would not be appropriate purchases with surplus funds. The same applies to part-time judges for items the municipality provides. Thus, Opinions 04-06, 02-27, 95-36 (Vol. XIII), 93-56 (Vol. XII), and 92-104 (Vol. X) are modified where inconsistent with this view.

         Finally, we note the inquiring judge did not request advice about using some of his/her otherwise unexpended campaign funds for a modest, reasonable post-election victory reception held within the Window Period, and thus decline to address that issue here. See Opinions 98-06 (Vol. XVI); 93-19 (Vol. X); 87-16 (Vol. I); see also 2004 Annual Report of the NYS Commission on Judicial Conduct at 153.