Opinion 14-167
January 28, 2016
Digest: A judicial candidate, who has received a political organization’s statement of costs incurred on behalf of his/her campaign, has no affirmative duty to investigate the accuracy of the statement. However, where the statement is plainly an unreliable, advance estimate of the actual costs ultimately incurred on the candidate’s behalf, or is otherwise clearly inaccurate on its face, the candidate must request a revised statement of actual costs incurred by the organization.
Rules: Election Law § 17-162; 22 NYCRR 100.5(A)(1)(c)-(d); 100.5(A)(2); 100.5(A)(1)(h); 100.5(A)(5); 100.5(A)(6); Opinions 92-97; Matter of Raab, 100 NY2d 305 (2003).
Opinion:
A full-time judge, seeking re-election, asks if he/she may reimburse a political entity for costs allegedly incurred on his/her campaign’s behalf, based solely on the political organization’s initial estimate of costs for the full campaign. The judge received some campaign-related goods and services from the organization, but they significantly differed from those described in the estimate. The political entity asked to be reimbursed for the estimated costs, even though the estimate, on its face, inaccurately reflects the goods the political entity ultimately purchased for the judge’s campaign. He/she has been unable to obtain data from the political entity showing the actual amounts spent so as to pay his/her proportional share of the actual costs.
A candidate for elective judicial office, including a judge, may personally participate in his/her own campaign for judicial office during his/her window period, subject to certain limitations (see 22 NYCRR 100.5[A][1][c]; 100.5[A][2]). For example, a judicial candidate 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 make a general payment or contribution to a political organization or candidate (see 22 NYCRR 100.5[A][1][h]; see also Election Law § 17-162); and must not use or permit the use of campaign funds for the private benefit of the candidate or others (see 22 NYCRR 100.5[A][5]). Also, a judicial candidate may not permit the use of personal or campaign funds to pay for campaign-related goods or services for which fair value was not received (see 22 NYCRR 100.5[A][6]).
The Committee has previously advised that a judicial candidate’s campaign committee may reimburse a political organization for certain expenses it had incurred for campaign-related goods or services spent on the candidate’s behalf, provided the candidate “on a reasonable basis of fact believes that these expenses are reasonable and actual costs actually and proportionately relating to the candidate’s judicial campaign” (Opinion 92-97). Conversely, the Court of Appeals has held that a judicial candidate’s substantial payment to a political organization “without verifying that the payment was used to cover expenditures related to his [or her] own campaign and not applied to other candidates’ races or to general party needs” is an improper political contribution (Matter of Raab, 100 NY2d 305, 316 [2003]).
In Opinion 92-97, the Committee stated that a judicial candidate may reimburse a political organization a reasonable amount for his/her proportionate share of expenses related to his/her own candidacy (id.). But, a judicial candidate may not make a general contribution to a political party and must avoid paying for goods or services related to another candidate’s campaign (see id.; 22 NYCRR 100.5[A][1][h]; Election Law §17-162). Thus, for example, because a judicial candidate may permit his/her campaign committee to make expenditures for the judge’s re-election, the Committee has advised that reimbursement to a political organization for judicial convention expenses such as site rental, food for delegates, advertising, music and printing and distributing petitions that were actually related to his/her campaign was permissible, but that expenses for general mailings or the printing of phone sheets or mailing labels in an uncontested race could not be reimbursed (see Opinion 92-97).
When a judicial candidate authorizes a political organization to expend funds on his/her behalf (e.g. for individual or slate advertisements), the candidate must necessarily rely on the organization to provide sufficient information about the expenditures so he/she “on a reasonable basis of fact” can conclude that such expenses are “reasonable and actual costs actually and proportionately relating to the candidate’s judicial campaign” (Opinion 92-97), rather than impermissible political contributions. In the Committee’s view, however, a judicial candidate has no duty to investigate the political entity’s actual costs. Thus, a judicial candidate may ordinarily presume the data the political organization provides stating the costs the candidate incurred is accurate, absent facial indicia of unreliability.
Here, the usual presumption does not apply because the political organization has proffered a mere cost estimate prepared at the very beginning of the campaign season and which plainly, on its face, inaccurately reflects the actual costs eventually incurred. Indeed, it lists goods and services substantially different from those the inquiring candidate actually received. Under these facts, the inquiring judicial candidate must request a revised statement of actual costs incurred by the organization.