Opinion 12-95(A)

June 14, 2012

Please Note: This opinion is modified by Opinion 16-29/16-50, which raises the threshold for treating unexpended campaign funds as de minimis to “$2,500 or less” and also permits certain new uses for such funds as necessary to close out the campaign account after the window period ends (affecting footnote 1). 

Digest:         Unexpended campaign funds totaling less than $1,000 need not be returned to contributors on a pro rata basis but may be expended for any lawful non-political purpose connected to judicial office, such as the purchase of office supplies, computer software or books.

Rules:          22 NYCRR 100.0(Q); 100.5(A)(1)(c)-(d); 100.5(A)(1)(h); 100.5(A)(2); 100.5(A)(5); Opinions 08-151; 07-187; 07-65; 06-162; 01-81; 99-71 (Vol. XVIII); 97-04 (Vol. XV); 94-21 (Vol. XII); 93-15 (Vol. XI); 92-94 (Vol. X); 90-193 (Vol. VI); 89-152 (Vol. V); 88-59 (Vol. II); 87-02 (Vol. I); 2004 Ann Rep of NY Commn on Jud Conduct, at 153.

Opinion:

         In Inquiry 12-95(A), a recently elected judicial candidate in his/her post-election window period asks the Committee to re-consider Opinion 99-71 (Vol. XVIII), which provides that unexpended campaign funds “totaling less than $150” may be treated as de minimis in nature.

         A judge or non-judge candidate for elective judicial office may personally participate in his/her own campaign for judicial office during his/her window period, subject to certain limitations (see 22 NYCRR 100.0[Q] [defining “window period”]; 100.5[A][1][c]; 100.5[A][2]). For example, a candidate for judicial office must not participate in any political campaign or any partisan political activity on behalf of other candidates (see 22 NYCRR 100.5[A][1][c]-[d]); must not solicit funds for, pay an assessment to, or make contributions to a political organization or candidate (see 22 NYCRR 100.5[A][1][h]); and must not use or permit the use of campaign contributions for the private benefit of the candidate or others (see 22 NYCRR 100.5[A][5]).

         The Committee has advised that a judicial candidate must make every reasonable effort to return unexpended campaign funds to contributors on a pro rata basis at the conclusion of his/her window period (see Opinion 06-162; see also Opinions 08-151; 07-187; 07-65), unless the remaining funds are de minimis in nature (see Opinion 99-71 [Vol. XVIII]).

         In Opinion 99-71 (Vol. XVIII), the Committee advised that unexpended campaign funds “totaling less than $150” may be treated as de minimis in nature and thus expended for any lawful purpose. This $150 threshold has been in effect for more than a decade, and the Committee believes that it should now be increased to $1,000 (see Opinion 08-151 [characterizing $1,000 in unexpended campaign funds as “minimal” under the circumstances]).

         Accordingly, in the Committee’s view, unexpended campaign funds totaling less than $1,000 need not be returned to contributors on a pro rata basis but, rather, may be expended for any lawful non-political purpose connected with judicial office, such as the purchase of office supplies, computer software or books.¹

         Opinion 99-71 (Vol. XVIII) is hereby overruled by this Opinion, and Opinion 07-187 is hereby modified to clarify that de minimis levels of unexpended campaign funds need not be returned pro rata to contributors but, rather, may be used in accordance with this Opinion.

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      ¹The Committee notes that even de minimis remaining campaign funds may not be used for the private benefit of the candidate or others (see 22 NYCRR 100.5[A][5]). Thus, they must not be donated to charity (see Opinion 08-151) or transferred or donated to any political organization or candidate (see Opinions 90-193 [Vol. VI]; 88-59 [Vol. II]; 87-02 [Vol. I]), and they may neither be used to pay outstanding debts from prior election campaigns nor retained for use in subsequent campaigns (see 22 NYCRR 100.5[A][1][c]-[d]; 100.5[A][1][h]; 100.5[A][5]; Opinions 01-81; 97-04 [Vol. XV]; 94-21 [Vol. XII]; 93-15 [Vol. XI]; 92-94 [Vol. X]; 89-152 [Vol. V]; see also 2004 Ann Rep of NY Commn on Jud Conduct, at 153 [improper transfer of campaign funds and improper use of surplus funds]).