June 14, 2007
This responds to your inquiry (07-65) asking whether, when returning unexpended campaign funds pro rata to contributors, you may decline to issue checks for a very small amount (e.g., $10.00 or less), and instead add those amounts to the general fund and re-calculate the amount to be returned pro rata to the remaining contributors.
As you are aware, a judicial candidate must make every reasonable effort to return unexpended campaign funds to contributors on a pro-rata basis. In Opinion 06-162, our Committee clarified that if the remaining unexpended funds are de minimis or otherwise so limited that, under the circumstances, returning the balance to contributors will be significantly impracticable, these funds may be used to purchase certain items for use in performing the judge’s official duties. In determining whether it will be impracticable to return the unexpended campaign funds to donors, the judicial candidate may consider such factors as the total number of donors and the cost of returning the funds. The de minimis amount below which funds need not be returned applies to the entire campaign account, not to the amounts to be returned to individual contributors.
Although the Committee acknowledges and appreciates the difficulties presented by small checks that may remain uncashed, the Committee declines to set an amount below which individual contributors will not receive their pro rata share of the refund from your campaign committee. Therefore, in light of this determination, you should proceed to arrange to distribute the funds pro rata to all contributors.
However, since we recognize the potential inconvenience this opinion may create, we also suggest that, in returning the funds, you should, to the extent possible, take steps to minimize the risk of uncashed checks that will further delay the closing of your campaign account. Therefore, 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 in accordance with the Rules Governing Judicial Conduct, the opinions of this Committee, and the Election Law, and that the funds will be unavailable if they attempt to cash the check beyond that date. Your campaign committee may also wish to investigate whether there is an alternative method (such as money orders) that could legally be used to return money pro rata to campaign contributors, without depending on the recipients’ active “acceptance” of the money.