Opinion 87-02


January 28, 1988


Please Note: This opinion is modified by Opinion 16-29/16-50.  In particular, “on conclusion of the window period, once the candidate’s remaining campaign funds are eligible to be treated as ‘de minimis’ as described [in Opinion 16-29/16-50], such funds may, in the candidate’s discretion and to the extent legally permitted, be donated to the Catalyst Public Service Fellowship Program and/or used to purchase specific books or reference items requested by Unified Court System law librarians, which will then be donated to the Unified Court System, subject to any necessary administrative approvals.”


 

Topic:          Unexpended Campaign Funds of a Committee for the Re-election of a Candidate for Judicial Office.

 

Digest:         Unexpended funds for Judicial Candidate may not be donated to a political party, general fund, or political committee; nor to any special non-campaign fund fo any political entity; nor to any charitable fund or organization of any kind.

 

Rules:          Code of Judicial Conduct, Canon 5 (B), 7 (A) [2], 7 (B)[1][b], and 7 (B) [2]; 22 NYCRR § 100.7 (b); Election Law §§ 14-130, 17-162; 50 NY Jur. 2d Elections, § 844; US v. Pisani, 590 F. Supp. 1326.


Opinion:


         This is in response to a letter dated October 23, 1987 requesting an opinion regarding the following three issues:

 

1 ~ May a political committee operating to aid the election of a candidate for judicial office dispose of campaign funds received, but not expended, during the course of the campaign by transferring the funds to the general fund or treasury of a political party or of a political party committee?

 

2 ~ May a political committee operating to aid in the election of a candidate for judicial office dispose of campaign funds received, but not expended during the campaign, by transferring such funds to a non-campaign (i.e., housekeeping ) fund of a political party or of a political party committee?

 

3. ~ May a political committee operating to aid in the election of a candidate for judicial office dispose of campaign funds received, but not expended during the course of the campaign, by transferring such funds to a bona fide charitable organization?


         The Committee responds to each question as follows:

 

 

1. ~ Neither a candidate for judicial office nor his or her election committee may make contributions to any political party, to any political campaign, nor for any political activity, except to finance his or her own campaign for election or re-election or for the exception set forth in 22 NYCRR Section 100.7 (a) [2] [ii]. Therefore, the committee answers the first question in the negative. Election Law Section 17-162 and 22 NYCRR Section 100.7, 100.7 (a) and (b).

 

2. ~ The foregoing response applies equally to the second question posed in inquiry # 87-02.

 

3. ~ While there exist opinions to the contrary (See, 50 N.Y. Jur. 2d Elections, Section 844 and n. 50), it is the opinion of this committee that unexpended campaign funds left in the treasury of a committee for the election or re-election of a judge or justice may not be donated to any charity. It is believed that there is a private and personal benefit flowing from the donation of money. Code of Judicial Conduct, Canon 7 (B) [2]. In reaching this conclusion we have not considered the question of law posed by Sections 14-130 and 17-162 of the Election Law.

 

Apart from the notion that the donors have presumably donated their moneys for a very specific purpose (i.e., necessary campaign expenditures for a particular judicial candidate), it is reasonable to suggest that donating campaign funds to a charity would enure to the personal benefit of the candidate which has no bearing upon his or her competence or integrity as a judge or justice. This is especially so when such a candidate is especially so when such a candidate is running for election unopposed. Therefore, the committee answers the third question in the negative, and further suggests that the appropriate method of disposing of unexpended campaign funds is to return them to the donors on a pro rata basis.