Opinion 18-70
May 10, 2018
Digest: Subject to the fair value rule, a candidate for elective judicial office may use campaign funds to attend a charitable event during the post-election window period and purchase a full-page congratulatory journal advertisement in furtherance of his/her campaign. That the candidate is a trustee of the organization does not render this expenditure impermissible.
Rules: 22 NYCRR 100.0(Q); 100.5(A)(2)(v); 100.5(A)(5)-(6); Opinions 12-84/12-95(B)-(G); 10-80; 07-137; 98-107.
Opinion:
A judicial candidate asks if he/she may use campaign funds to purchase a journal advertisement and tickets to a not-for-profit charitable organization’s fund-raising event which will take place during the post-election window period. The tickets are $40 each and the full-page journal ad is $150. The advertisement congratulates the year’s scholarship recipients, includes the candidate’s name, photograph, and current judicial position, and states the ad is paid for by his/her campaign committee. The candidate is also a trustee of this not-for-profit organization.
Any candidate for election to judicial office may engage in permissible political activity in furtherance of his/her own judicial campaign during the applicable window period (see 22 NYCRR 100.0[Q]). Among other limits, the candidate must “not use or permit the use of campaign contributions for the private benefit of the candidate or others” (22 NYCRR 100.5[A][5]) and “may not permit the use of campaign contributions or personal funds to pay for campaign-related goods or services for which fair value was not received” (22 NYCRR 100.5[A][6]).
Since campaign funds must not be used for any private benefit, we’ve advised candidates to “not use campaign funds to make charitable donations unless they directly benefit the campaign” (Opinion 07-137). We stressed that “charitable contributions per se are not a traditional part of the election process and are impermissible under our prior opinions, unless they are used to secure campaign-related advertising, goods or services, or to attend charitable events in furtherance of the candidate’s campaign” (id.).
Still, we recognized “judicial candidates need to attend a wide variety of events during their window period in order to connect with prospective voters, supporters, and campaign workers; to otherwise generate awareness of their qualifications and their candidacy; and to thank those who have helped their campaign efforts and/or those who voted for them” (Joint Opinion 12-84/12-95[B]-[G]). Thus, we advised a candidate may, to the extent legally allowed, “use campaign funds to attend a variety of events hosted by non-political sponsors, such as bar association dinners or golf tournaments, charitable and civic events, and judicial association dinners, throughout his/her window period,” if his/her presence furthers his/her judicial campaign and the candidate decides he/she will derive fair value for the expense(id.; see also 22 NYCRR 100.5[A][6]).1 A judicial candidate may also buy campaign advertising by sponsoring a charitable event, subject to the fair value rule (see Opinion 10-80 [candidate may promote his/her candidacy by sponsoring a local softball team, where “such sponsorship would pay for team shirts and banners displaying the candidate’s name”]; 07-137 [candidate may buy a campaign ad by donating to a charity so the judge’s name, with the picture of a gavel, will be printed on a T-shirt at no cost to event attendees]).
Accordingly, this judicial candidate may use campaign funds to purchase tickets and attend a charitable event during the window period and buy the described full-page journal ad congratulating scholarship recipients at the event, provided his/her attendance is in furtherance of the campaign and he/she decides the campaign will obtain fair value for the expense.2 That the candidate is a trustee of the organization does not make these otherwise permissible campaign expenditures impermissible.
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1 Although the strict limits on price and number of tickets apply only to “politically sponsored” functions (see 22 NYCRR 100.5[A][2][v]), we note that charitable events remain subject to the fair value rule (see 22 NYCRR 100.5[A][6]).
2 In this connection, we note that a $40 ticket and $150 journal advertisement are not so extraordinarily large that they “can only be regarded as an impermissible ... contribution” (cf. Opinion 98-107 [where tickets to a political dinner are $3,000, “[t]he disparity between price and any conceivable cost is of such dimension as to lead” to the conclusion that the ticket price is primarily a contribution]).