Opinion 99-71

April 29, 1999

Please Note: See Opinion 16-29/16-50 for updated information about use of unexpended campaign funds and the de minimis rule. In addition, while it does not affect the outcome here, see AO-347 concerning the status of Section 100.4(D)(5)(h).

Digest:         Unexpended campaign funds totaling less than $150 need not be returned to contributors on a pro rata basis, but may be expended for any lawful purpose, e.g., the purchase of office supplies or books.

Rule:            22 NYCRR 100.4(D)(5)(h); Opinions 93-56 (Vol. XI); 93-15 (Vol. XI); 92-94 (Vol. X); 90-4 (Vol. V).

Opinion

         A newly-elected judge whose election committee has completed its work and ceased operating, has been advised by the United States Postal Service that it overcharged the committee by $52.81 for postage and insists that a refund payment must be made and accepted. The committee no longer maintains bank accounts and the judge inquires as to how the funds should be disbursed as it would pose a severe hardship to return such a small amount on a pro rata basis to all contributors.

         This Committee has consistently been of the view that unexpended campaign funds must be returned to donors on a pro rata basis (Opinion 93-15 [Vol. XI]), and may not be used in any other election campaign (Opinion 92-94 [Vol. X], or donated to any other entity, including a charity (Opinion 90-4 [Vol. V]). Unexpended funds may, however, be used to purchase equipment for the judge's office, which equipment then becomes court property. Opinion 93-56 (Vol. XI).

         As presented to the Committee, it appears that the inquiring judge is correct in concluding that a pro rata refund of the funds to donors would amount to an unreasonable hardship and is highly impractical. There should be a "de minimis" application to the Rules and the past interpretations of the Committee. The amount involved is so small that it is well within the sum specified in section 100.4(D)(5)(h) of the Rules Governing Judicial Conduct which permits a judge to accept a gift of $150 without having to meet reporting requirements.

         Given the fact that the total amount is under $150, the Committee advises that the judge may have the check cashed by the chairperson of the committee, if that is possible, and utilize the funds for any legitimate purpose, such as the purchase of office supplies or books.