Opinion 07-187

December 6, 2007

Amended August 27, 2012

Please Note: This Opinion has been modified by Opinion 12-95(A) to clarify that de minimis levels of unexpended campaign funds need not be returned pro rata to contributors but may be used as permitted by Opinion 12-95(A). It is also modified by Opinion 16-29/16-50, which (1) raises the threshold for treating unexpended campaign funds as de minimis to “$2,500 or less” and (2) permits certain new uses for such funds as necessary to close out the campaign account after the window period ends.

Digest:         A recently-elected judge may retain a small portion of unexpended campaign funds to pay for tickets to political events that the judge will attend during his/her Window Period and for a modest victory reception to be held during his/her Window Period and may return the remainder to donors on a pro rata basis before his/her Window Period expires. At the end of the judge’s Window Period, however, his/her campaign treasurer must return any remaining unexpended campaign funds to the judge’s donors on a pro rata basis, except that de minimis levels of unexpended campaign funds may be used as permitted by Opinion 12-95(A).

Rules:          22 NYCRR 100.0(Q); 100.5(A)(2); 100.5(A)(2)(v); Opinion 06-162; Joint Opinion 06-80 and 06-81; Opinions 05-21; 05-132; 98-06 (Vol. XVI); 97-121 (Vol. XVI); 93-19 (Vol. X); 89-152 (Vol. V); 87-16 (Vol. I)

Opinion:

         A recently-elected judge who is still within his/her window period asks if his/her campaign treasurer may properly return most of the remaining unexpended campaign funds to donors on a pro rata basis, but retain a small amount for use during the window period to attend permissible political events and to hold a “modest” victory reception.

         During the six-month post-election Window Period (see 22 NYCRR 100.0[Q]), a judge or candidate for judicial office may use campaign funds for those activities permitted under Section 100.5(A)(2) of the Rules Governing Judicial Conduct and for some expenditures that are considered a “traditional part of the total election process” (Opinion 87-16 [Vol. 1]). For example, during his/her Window Period, a judicial candidate may continue to use campaign funds to purchase two tickets to and attend political dinners and other events, “provided that the event’s organizer sells tickets to judicial candidates or their campaign committees [at] a price not exceeding $250 per ticket, even if the price per ticket for other attendees exceeds $250” (Joint Opinion 06-80 and 06-81; see also Opinion 97-121 [Vol. XVI], citing 22 NYCRR 100.5[A][2][v]). This Committee also has advised that a successful candidate for judicial office may use a small amount of campaign funds for “a modest victory celebration during the six-month post-election period (Window Period)” (Opinion 05-132, modified on other grounds by Opinion 06-162) because it is a “traditional part of the total election process” (87-16[Vol. I]; see also 98-06 [Vol. XVI]; 93-19 [Vol. X]; 89-152 [Vol. V]).

         At the end of their Window Periods, candidates for judicial office must return any unexpended campaign funds to donors on a pro rata basis (see Opinion 06-162). In Opinion 05-21, however, the Committee concluded that a candidate who is cross-endorsed may choose to “return to donors a pro rata share of most of the unused campaign funds [prior to the close of the window period] while retaining a small sum for possible use during the [w]indow [p]eriod, at the conclusion of which the balance remaining should be returned [emphasis added].”

         The judge in the present inquiry, therefore, may choose to return a portion of campaign funds to donors on a pro rata basis prior to the conclusion of the window period and may retain a small portion for use during the window period to attend political events and to fund a modest victory reception. At the end of his/her window period, however, the judge’s campaign treasurer must return any remaining unexpended campaign funds to the donors on a pro rata basis, except that de minimis levels of unexpended campaign funds may be used as permitted by Opinion 12-95(A).