May 10, 2018
Digest: Subject to the fair value rule, a judicial candidate who has only de minimis remaining unexpended campaign funds may use such funds to attend legal education conferences to enhance his/her judicial competence.
Rules: 22 NYCRR 100.0(Q); 100.3(B)(1); 100.5(A)(5)-(6); Opinions 16-29/16/50; 07-126; 93-20.
A judicial candidate nearing the end of his/her post-election window period has less than $2,500 in campaign funds remaining. The candidate asks if he/she may use these funds to pay for two legal education conferences offering multiple continuing legal education and/or continuing judicial education (CLE/CJE) classes. One is a bar association conference for $700 and the other a judicial conference for $1,500.
A judge or non-judge seeking 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 restrictions, 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]) 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]).
In Opinion 16-29/16-50 (citations omitted), we said a candidate may use campaign funds during the post-election window period to attend non-political events provided that:
the candidate’s “attendance is in furtherance of his/her campaign for judicial office” and the candidate “determines that he/she will receive fair value for the expenditure.”
We have not previously addressed whether a candidate may use campaign funds to attend legal education programs. Such expenditures are not a traditional campaign expense, and it is unclear how attendance as an audience member could reasonably further the candidate’s campaign.
Here, by contrast, the candidate has only a de minimis amount of campaign funds remaining (i.e. $2,500 or less total) as his/her post-election window period ends.1 A judicial candidate must “dispose of any remaining campaign funds and close his/her campaign account as soon as practicable following the end of the window period” (Opinion 16-29/16-50). In general, unless an exception applies, once the window period ends, the candidate must direct his/her campaign committee to return any unexpended campaign funds to the donors pro rata (see id.). However, if the funds remaining after conclusion of the window period total $2,500 or less, the candidate may treat them as de minimis and use them for any lawful non-political purpose connected to judicial office (see id.).2
We believe that attending CLE/CJE programs is a lawful non-political purpose connected to judicial office (cf. 22 NYCRR 100.3[B] [a judge must “maintain professional competence in” the law]; Opinion 07-126 [“participation in bar associations and other legal organizations is to be encouraged”]). It is therefore a permissible use of a judicial candidate’s remaining de minimis unexpended campaign funds on close of the window period.
Accordingly, we conclude this candidate may use his/her de minimis unexpended campaign funds to attend such programs, subject to the fair value rule (see 22 NYCRR 100.5[A]). On these facts, we believe the fair value rule will be met as long as the candidate concludes (a) these CLE/CJE programs relate to his/her judgeship, and (b) he/she will receive fair value for the $700 and $1,500 expenditures to attend these legal education conferences.
1 Because the candidate was on the ballot for the general election on November 7, 2017, the last day of his/her window period is May 6, 2018 (see 22 NYCRR 100.0[Q]; Opinion 93-20).
2 However, even de minimis unexpended campaign funds may not simply be donated to charity, except as expressly permitted by a Committee opinion (see Opinion 16-29/16-50 [carving out a very narrow exception]).