Opinion 18-116

September 6, 2018

Please Note: See Opinion 19-19 for further guidance, as it partially modifies and partially reaffirms the present opinion. Of particular note, Opinion 19-19 says “our jurisdiction is limited to interpreting the Rules Governing Judicial Conduct.  Thus, if a judge or judicial candidate concludes the statutory interpretation assumption we articulated in Opinion 18-116 is legally incorrect, he/she need not defer to that assumption.  To that extent, we hereby modify Opinion 18-116.”

Digest:         Where a judicial candidate loaned his/her personal funds to the campaign, and that loan is now legally deemed a contribution, the candidate may include his/her contribution in the calculations when returning unexpended campaign funds pro rata to the candidate and to all campaign contributors after the window period ends. Thus, if the candidate’s personal loan was the campaign’s sole funding source, he/she may return all the funds entirely to him/herself as the sole contributor.

Rules:          Election Law §§ 14-100(3)-(4); 14-114(6)(a); Judiciary Law § 212(2)(l); 22 NYCRR 100.0(Q); 100.5(A)(1)©; 100.5(A)(2); Opinions 16-97; 16-29/16-50; 14-148.

Opinion:

         The inquiring judicial candidate financed his/her campaign solely by lending his/her own personal funds to the campaign, with no contributions from any other source. He/she now has unexpended campaign funds remaining in his/her campaign account after the election, at the conclusion of the window period. However, Election Law § 14-114(6)(a) states:

A loan made to a candidate or political committee, other than a constituted committee, by any person, firm, association or corporation other than in the regular course of the lender's business shall be deemed, to the extent not repaid by the date of the primary, general or special election, as the case may be, a contribution by such person, firm, association or corporation.¹

In light of this statutory scheme, the candidate asks if it is ethically permissible to disburse the remaining campaign funds to him/herself.

         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]). While we cannot comment on legal questions (see Judiciary Law § 212[2][l]), we here assume the his/her loan became a contribution under Election Law § 14-114(6)(a) after the election.

         A judicial candidate must “dispose of any remaining campaign funds and close his/her campaign account as soon as practicable following the end of the window period” (Opinion 16-29/16-50; see also Opinion 14-148). One permissible way to dispose of campaign funds at the conclusion of the window period, regardless of amount, is to return them pro rata to all contributors.²

         Here, we conclude the candidate may return the funds pro rata to his/her campaign contributors, which, in this instance, means he/she may return the funds entirely to him/herself as the sole contributor.

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         ¹ A “constituted committee” is a state committee or county committee of a political party (Election Law § 14-100[3]-[4]).

         ² Where the amount remaining exceeds $2,500, judicial candidates must direct their campaign committee to return all unexpended campaign funds to their donors pro rata (see Opinion 16-29/16-50). However, if the funds total $2,500 or less, they may be treated as de minimis and be expended for any lawful non-political purpose connected to judicial office (see id.). In addition, funds remaining after one bona fide effort to return the unexpended funds pro rata to all contributors may also be treated as de minimis, regardless of the amount (see Opinion 16-97).