Advisory Opinion 1989-51¹ (October 19, 1989)

SUMMARY

Whether a candidate in the general election may use contributions accepted for the primary election to pay for certain “winding down” expenses incurred after the date of the general election.

FULL TEXT

An advisory opinion has been requested whether an authorized committee of a candidate participating in the Campaign Finance Program, who is a candidate in the general election, may use contributions accepted for a primary election to pay for the following expenses incurred after the date of the general election:

1) Gathering information for and filing the post-election disclosure reports due December 4, 1989 and January 15, 1990.

2) Staff expenses relating to gathering and reporting information, selling assets, and storage of documents.

3) Rent, supplies, and telephone incident to the above expenses.

4) Fees to a professional consultant in connection with gathering and reporting information and any audits.

In general, contributions accepted for a primary election may not be expended in the general election, and those accepted for the general election may not be expended in a primary. Campaign Finance Board Rule 402(a), (c) ². The Campaign Finance Act provides that expenditures made prior to or on the date of the primary election are deemed to have been made for the primary election. Administrative Code §3-706(1) (c). In the case of a primary election candidate who is also a candidate in the general election, the Board will presume that disbursements made after the date of the primary are for the general election. Campaign Finance Board Rule 102(e). The candidate may overcome this presumption by demonstrating that post-primary disbursements were made for expenses incurred in the primary election and not in the general election. Id.

The post-general election “winding down” expenses, described above, may be associated with both the primary and general elections. Indeed, it is likely that many of these expenses would have been incurred even if the primary election candidate had not become a candidate in the general election. The candidate may therefore reasonably apportion these “winding down” expenses between the primary and general elections. Primary election contributions may be used to pay any expenses that could reasonably have been attributed to “winding down” after the primary election, had there been no participation in the general election; or may use general election contributions to pay any expenses that are reasonably attributed to “winding down” after the general election; or may reasonably apportion primary and general election contributions to pay “winding down” expenses apportioned between the primary and general elections³.

NEW YORK CITY CAMPAIGN FINANCE BOARD

¹ SUPERSEDED BY LOCAL LAW NO. 69 OF 1990.

² The Campaign Finance Act and rules issued by the Board permit the “carrying over” of contributions for expenditure in a subsequent election and the “carrying back” of contributions for expenditures in a previous election. See New York City Administrative Code §3-706(3); Campaign Finance Board Rules 102(o); 108; 401(a) (4). These exceptions to the general rule are not applicable to the question addressed in this opinion.

³ Neither primary nor general election contributions may be used in other elections, however, unless and until the candidate has made all required repayments to the New York City Election Campaign Finance Fund and paid any fines or civil penalties pursuant to the Campaign Finance Act. Campaign Finance Board Rule 102(t).

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