Opinion 08-151

December 4, 2008

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.”

Digest:         Unexpended campaign funds may not be donated to any charity. Campaign funds remaining after a bona fide effort to return unexpended funds pro rata to all contributors may be used after the expiration of the window period for any purpose consistent with prior opinions, except that funds remaining after the expiration of the window period may not be used for victory parties or to attend political events.

Rules:          Election Law §14-130; 22 NYCRR 100.0(Q); 100.2; 100.2(A); 100.5(A)(5); Opinions 07-137; 06-162; 93-19 (Vol. X); 91-67 (Vol. VII); 90-04 (Vol. V); 87-02 ([Vol. I)].

Opinion:

         A judge asks whether his/her campaign committee may contribute unexpended campaign funds to a charity. The judge advises that his/her campaign committee has attempted to return the unexpended campaign funds to donors on a pro rata basis, but that several donors have neglected to cash their checks. The judge is no longer in his/her Window Period, and the balance in his/her campaign account is no more than $1,000.

         A judge must avoid impropriety and the appearance of impropriety in all the judge’s activities (see 22 NYCRR 100.2) and must act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary (see 22 NYCRR 100.2[A]). A candidate for judicial office shall not use or permit the use of campaign contributions for the private benefit of his/herself or others (see Election Law §14-130; 22 NYCRR 100.5[A][5]). Therefore, the Committee previously has advised that a judicial candidate’s election campaign committee may not donate unexpended campaign funds to any charity (see Opinion 07-137; 90-04 [Vol. V]; 87-02 [Vol. I]).

         However, the Committee also has advised that a judge who is within his/her Window Period (see 22 NYCRR 100.0[Q]), for whom the effort to return a minimal amount of unexpended campaign funds to contributors on a pro-rata basis has become impracticable, may use such funds to purchase modestly priced items such as a lap top computer that the court system or municipality would not otherwise provide for the judge to use in the performance of his/her judicial duties (see Opinion 06-162).

         Although the judge in the present inquiry is no longer within his/her Window Period, it is the Committee’s view that the judge’s campaign committee also may use the minimal amount of unexpended campaign funds to purchase modestly priced items that the court system or municipality does not otherwise provide for the judge to use in the performance of his/her judicial duties. However, because the judge no longer is in his/her Window Period, the judge’s campaign committee may not use such funds to purchase tickets for political events (see 22 NYCRR 100.0[Q]; Opinion 91-67 [Vol. VII]) or for any post-election victory party (see 22 NYCRR 100.0[Q]; Opinion 93-19 [Vol. X]). And, under no circumstances, may the unexpended campaign funds be donated to charity.