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1997-3: Candidate Eligibility to Participate in Debates

May 15, 1997

Re: Administrative Code §3-703(1) (a); 3-709(7); 3-709.5(1), (8); Campaign Finance Board Rules 2-07(b), (c); 5-02(b); Op. No. 1997-3.

The Board has determined to issue an advisory opinion to clarify when a participating candidate is considered to be on the ballot for purposes of determining when that candidate is eligible and required to participate in debates as provided in New York City Administrative Code §3-709.5.

Under Administrative Code §3-709.5, the Board must select sponsors to conduct mandatory debates for participating candidates running for mayor, public advocate, and comptroller. The Board is required to provide the debate sponsors it has selected with a list of candidates for City-wide office who must participate in the debates. Administrative Code §3-709.5(8). To participate in a debate held under Administrative Code §3-709.5, a candidate must be on the ballot in the relevant election. Administrative Code §3-709.5(1). Similarly, Administrative Code §3-703(1) (a) provides that to be eligible for public financing, a candidate who joins the New York City Campaign Finance Program must meet all the requirements of law to have his or her name on the ballot. Section 3-709(7) further provides that public funds shall not be paid to any participating candidate who has been finally disqualified from the ballot or whose designating or nominating petitions have been finally declared invalid by the New York City board of elections or a court of competent jurisdiction.

Under Campaign Finance Board Rule 5-02(b), the Board considers a participating candidate to be finally disqualified from the ballot on the day of a court decision or administrative determination from which there is no appeal as of right or the day of the election, whichever is earlier. The candidate must provide written notice to the Board if he or she is disqualified from the ballot. See Rule 2-07(b) . It has also been the Board's practice to consider the candidate to be off the ballot if the candidate has not provided written notice, pursuant to Rule 2-07(c), that an appeal or other legal action is being taken to remedy the disqualification. See Campaign Finance Board, 1997 Campaign Finance Handbook at 31-32.

The Board's standards for determining whether a candidate is on the ballot for purposes of making public funds payments will also apply in determining whether the candidate is on the ballot for purposes of the debate provisions. Thus, when a candidate has been initially disqualified from the ballot by administrative or judicial determination, the candidate will not be included in a subsequent debate for that election held under the Campaign Finance Act, unless and until the candidate has given the Board written notice that he or she is seeking to appeal or otherwise remedy the disqualification. Furthermore, if a candidate has been declared disqualified from the ballot as a result of a judicial determination from which there is no appeal as of right, the candidate will not be included in a subsequent debate for that election, unless and until the disqualification has been reversed by a subsequent administrative or judicial determination.