Amended Opinion 16-97

June 16, 2016 (revised September 8, 2016)

Digest:         After one bona fide effort to return unexpended funds pro rata to all contributors, a judicial candidate need not make any further efforts to return the funds, even if some envelopes were returned to the campaign committee as undeliverable. Instead, the remaining campaign funds may be used for any purpose consistent with prior opinions and applicable law.

Rules:          Election Law § 14-130; Judiciary Law § 212(2)(l); 22 NYCRR 100.0(Q); 100.5(A)(1); 100.5(A)(1)(c); 100.5(A)(2); 100.5(A)(4)(c); 100.5(A)(5); Opinions 16-29/16-50; 12-95(A); 08-151; 07-65; 06-162; 03-61; 01-81.

Opinion:

         The inquiring judge’s campaign committee has attempted to return the unexpended campaign funds from a prior year’s election campaign pro rata to contributors. The judge’s treasurer reports that a number of checks still have not been cashed or negotiated, leaving approximately $3,000 in the campaign account. Some of the mailings were returned to the campaign committee as “undeliverable” or “expired address.” The judge asks how he/she should proceed, and whether the campaign committee must investigate the new addresses of the contributors whose checks were returned as undeliverable.¹

         A judge must not “directly or indirectly” engage in any political activity, except as expressly permitted under the Rules Governing Judicial Conduct (see 22 NYCRR 100.5[A][1]). However, a judge or non-judge candidate for elective judicial office may participate in his/her own campaign for judicial office during the applicable 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, although judicial candidates must not personally solicit or accept campaign contributions, they may establish committees of “responsible persons” to “solicit and accept reasonable campaign contributions and support from the public, including lawyers,” during the applicable window period (see 22 NYCRR 100.5[A][5]; 100.5[A][4][c]).

         When the remaining unexpended campaign funds at the end of the applicable window period are more than de minimis (see Opinion 16-29/16-50 [revising the threshold for de minimis funds]), a judge or non-judge candidate for elective judicial office “must make every reasonable effort to return [such] funds to contributors on a pro-rata basis” (Opinion 06-162). Although “there is no specified time frame to effectuate the return, it should be done as soon as possible” following conclusion of the window period (Opinion 01-81), “so as to avoid any claim that the judge is engaged in prohibited political activity” (Opinion 03-61).

         However, the Committee has recognized and addressed certain practical difficulties judicial candidates may encounter in attempting to return unexpended campaign funds to contributors (see e.g. Opinions 16-29/16-50; 08-151; 07-65; 06-162). Of particular relevance here, in Opinion 08-151, the Committee advised:

Campaign funds remaining after a bona fide effort to return unexpended funds pro rata to all contributors may be used after the expiration of the window period for any purpose consistent with prior opinions, except that funds remaining after the expiration of the window period may not be used for victory parties or to attend political events.

         As described in the inquiry, this judge’s campaign committee, at the judge’s direction, has already made one bona fide effort to return all unexpended campaign funds pro rata to contributors and has allowed a reasonable amount of time for the checks to be cashed or negotiated. No more is required. The judge need not direct the campaign committee to investigate the new addresses of campaign contributors whose checks were returned as undeliverable and need not make a second attempt to return the funds. Instead, the judge may immediately use the remaining funds “for any lawful non-political purpose connected to judicial office, such as the purchase of office supplies, computer software or books” (Opinion 12-95[A]), including “modestly priced items such as a lap top computer that the court system or municipality would not otherwise provide for the judge to use in the performance of his/her judicial duties” (Opinion 08-151).² The remaining funds may also be used for any purpose described in Opinion 16-29/16-50.

         As a reminder, campaign funds may not be used for private benefit (see 22 NYCRR 100.5[A][5]; Election Law § 14-130). They must not be “transferred or donated to any political organization or candidate, and they may neither be used to pay outstanding debts from prior election campaigns nor retained for use in subsequent campaigns” (Opinion 12-95[A] n 1 [citations omitted]). Except as narrowly authorized by Opinion 16-29/16-50, the funds also “must not be donated to charity” (Opinion 12-95[A] n 1). Moreover, because the inquirer’s window period has expired, the funds “may not be used for victory parties or to attend political events” (Opinion 08-151).

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         ¹ At the Committee’s instruction, the judge has been awaiting issuance of Opinion 16-29/16-50 before disposing of his/her remaining campaign funds.

           ² The Committee cannot comment on legal questions, such as when and how the drawer of a check may declare it “stale” and/or stop payment on it (see Judiciary Law § 212[2][l]; cf. Opinion 07-65 [“to the extent permitted by governing law, you may advise campaign contributors that if the checks are not cashed by a particular deadline, you will need to dispose of the remaining funds..., and that the funds will be unavailable if they attempt to cash the check beyond that date”]).