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1997-13: Restrictions on Post-Election Expenditures

November 25, 1997

Re: Administrative Code § 3-709.5; 3-710(2) (c); Campaign Finance Board Rules 5-01(n) (3); 5-03(e); Op. No. 1997-13

An advisory opinion has been requested on behalf of Albanese for Mayor, City Councilman Sal Albanese's authorized committee for his mayoral campaign (the "Committee") 1. Albanese joined the New York City Campaign Finance Program, placed third in the Democratic mayoral primary election, and received $257,841 in public funds for the primary election. Albanese remained the candidate of the Independence Party for the general election. Following the primary election, Albanese sought to be relieved from the requirement that he participate in the debates for the general election required pursuant to New York City Administrative Code § 3-709.5 (the "debate law") 2. Although his name would appear on the general election ballot as the Independence Party nominee for mayor, the Committee represented that Albanese was no longer campaigning for election and would not be seeking public funds for the general election. Letter from Don Crouch, Campaign Manager, to Laurence Laufer, General Counsel (October 2, 1997). Board staff advised the Albanese campaign that under these circumstances the campaign would not be sanctioned for the candidate's decision not to appear in the general election debates under the debate law.

Between the primary election and the general election, the Committee incurred expenses for: (1) a staff "Thank You" dinner; (2) contributions made to other campaign committees in New York City; and (3) the cost of attendance by Albanese at various events through the date of the general election. The question raised is whether these expenditures were appropriately made before reimbursement of public funds.

When a candidate has received public funds, post-election expenditures by the candidate's authorized committee are restricted to those that are for the previous election, until unspent campaign funds are repaid. See Administrative Code § 3-710(2) (c); Campaign Finance Board Rule 5-03(e) (2). "No such excess funds shall be used for any other purpose, unless the total amount of the payments received from the fund by the authorized committee has been repaid." Administrative Code § 3-710(2) (c). This provision is intended to protect the New York City Election Campaign Finance Fund ("the Public Fund") from being used by authorized committees for expenses other than those made in connection with the election for which the candidate joined the Program and received public funds. See also Rule 1-03.

The expenditures at issue occurred prior to the general election in which the candidate's name appeared on the ballot. Therefore, post-election spending restrictions would not ordinarily apply. In the present case, however, the Committee represented to the Board that Albanese was no longer campaigning to be mayor and that he would not be taking public funds for the general election. Letter from Don Crouch, supra. As a result, the Board notified the campaign that it would not be sanctioned for the candidate's decision not to appear in the general election debates under the debate law, notwithstanding the fact that Albanese's name would appear on the general election ballot. This relief was necessarily premised on the Board's understanding that the candidate and the Committee were then engaged only in activities to wind up the campaign, which other candidates and their committees would not be initiating until after the general election.

When a candidate on the ballot in the general election asserts, in support of a decision not to appear in debates under the debate law, that his or her campaign is operating solely in a post-election manner, to safeguard the Public Fund it follows that the campaign's expenditures become subject to the restrictions that would otherwise first apply only after the general election under Administrative Code § 3-710(2) (c).

Staff "Thank You" Dinner

In Advisory Opinion No. 1989-56 (December 19, 1989), the Board concluded that the mailing of holiday cards to campaign volunteers and contributors immediately following the date of the election, for the purpose of conveying a message of appreciation for assistance provided in the election, is a routine activity involving nominal cost associated with winding up the campaign. Accordingly, unspent campaign funds may be used to pay for the mailing prior to making repayment to the Public Fund under Administrative Code § 3-710(2) (c).

Similarly, a dinner immediately following the date of an election for the purpose of expressing appreciation to campaign staff is a routine activity associated with winding up a campaign. The Board notes, however, that the cost of such a dinner must be reasonable in order for unspent campaign funds to be used to pay for the dinner. Intent by a campaign to use unspent campaign funds for a dinner beyond the scope of what is reasonable would be contrary to Administrative Code § 3-710(2) (c). The participating candidate therefore has the burden to establish that the cost of such a dinner is reasonable.

Political Contributions to Other Committees

Contributions made to other committees cannot be considered a routine activity related to the "winding up" of a political campaign. To permit contributions to be regarded as a winding up cost would undermine the Public Fund. Therefore, contributions may not be made until all required repayments are made under Administrative Code § 3-710(2) (c) 3.

Cost of Attending Events

The Board notes that the request does not specify the nature of the events attended by Albanese. Rather, the request asks for clarification regarding:

the cost of Mr. Albanese attending various events through Election Day which he feels compelled to attend despite having decided not to actively campaign. The total amount involved in these expenditures has not through the date of this letter exceeded $4000.

The Board is unable, given the limited information provided, to evaluate whether these expenditures would be prohibited by Administrative Code § 3-710(2) (c). Such an analysis requires careful examination on a case-by-case basis of the nature of the events, the time period in which the events occurred, the reason the candidate attended, and other relevant information.



1 The request was made by John W. Carroll, counsel to the Committee, by letter dated October 28, 1997.

2 Under the debate law, candidates running for a City-wide office who join the Campaign Finance Program and appear on the ballot are required to participate in two debates prior to the primary election and the first of two debates prior to the general election. The second debate held prior to the general election is limited to "leading contenders," but an "alternate forum" is conducted that includes participating candidates who do not appear in the leading contenders debate. Admin. Code § 3-709.5(1) .

3 In any event, the contributions the Committee made to other committees are presumed to consist entirely of contributions claimed to be matchable, and will therefore be deducted from the public funds payments the Committee is otherwise eligible to receive. Rule 5-01(n) (3).