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2001-11: Treatment of Applications for Public Funds Grant When Official Results of Primary Election Are Unduly Delayed

September 07, 2001

Re: Administrative Code §§3-704, 3-705(5), 3-709.5(1); Campaign Finance Board Rules 1-03(b), 1-04(c), 1-08(d), 2-06(c), 5-01(i)(2), 5-01(j); Advisory Opinions Nos. 1997-2, 1997-3, 1997-10, 1999-1; Op. No. 2001-11.

The Campaign Finance Board (the "Board") has determined to issue the following Advisory Opinion to clarify when public funds payments will be made to Campaign Finance Program (the "Program") participants in the event of a runoff primary election.

Program participants in a runoff election are eligible to receive public funds grants equal to 25% of the public funds payments they received for the primary election, if any. New York City Administrative Code (the "Administrative Code") §3-705(5); Board Rule 5-01(j); Advisory Opinion No. 1997-10 (September 18, 1997). Pursuant to Board Rule 5-01(j), the Board shall make these runoff primary public funds grants "within four business days after the date of the preceding election or as soon thereafter as practicable." Rule 5-01(j). The Board of Elections of the City of New York (the "BOE") may not complete the canvass of the election returns for competitive citywide primaries until a week or longer after election day.1  There has been serious public concern about the possible delays in the canvass, given the large number of candidates and the physical challenge of tallying results. A long delay in making grants to participants in a runoff primary election may unduly hinder candidates who legitimately expect to be in the race. The Board is also, however, obligated to protect the Public Fund against distributions of taxpayer dollars to Program participants who are not entitled to receive them.

Thus, the Board has determined to entertain applications to issue public funds grants pursuant to Administrative Code §3-705(5) and Rule 5-01(j) to those Program participants on the ballot in a primary election who show that they reasonably anticipate that they will be on the ballot for a runoff primary election, if the official results of the primary election are unduly delayed. Cf. Rule 5-01(i)(2). These grants will be issued by the Board as soon as the Board determines who, if anyone, is reasonably anticipated to be in a runoff primary. Rule 5-01(j). Relevant considerations for the Board's determination will include the number of candidates whose status is uncertain and the apparent closeness of the primary election results. If the BOE determines that a participant who has already received a runoff primary public funds grant is not on the runoff primary ballot (or that a runoff primary will not be held), the participant must return to the Public Fund the portion of any grant received that exceeds qualified campaign expenditures incurred for the runoff primary up to the date of the BOE determination.2 Advisory Opinion No. 1997-10; see also Administrative Code §3-704.

Runoff election public funds grants must be deposited in a segregated runoff election account. Disbursements, withdrawals, or transfers from a runoff election account may not be made until the day after the primary election for which the runoff primary is held.3 Rule 2-06(c); Advisory Opinion No. 1999-1 (January 7, 1999). If a runoff primary is not held, or a participant is not on the ballot for a runoff election, the runoff primary election account will be treated like an account established for an election not subject to the Campaign Finance Act, so that its use in the primary and general elections is prohibited, and the use of the account is frozen until the first January 12 after the election. Advisory Opinion No. 1997-2 (May 15, 1997); see also Rules 1-03(b), 2-06(c)(1)(ii). Further, expenditures incurred after the primary will be subject to the general election spending limit if the participant is in the general election.4 Contributions received for a runoff primary may not be returned to contributors after the participant receives public funds for the runoff primary unless the runoff primary is not held or the participant is not on the ballot for the runoff primary. Rules 1-04(c)(2), 2-06(c); Advisory Opinion No. 1997-10, fn. 2.

Participants who receive public funds grants for a runoff primary election must also participate in two runoff election debates unless the BOE determines that a participant who has received a runoff primary public funds grant is not on the runoff primary ballot (or that a runoff primary will not be held). Administrative Code §3-709.5(1); Advisory Opinions Nos. 1997-3 (May 15, 1997), 1997-10.


1 The BOE has until September 20, 2001 to do so. New York State Election Law §9-200.

2 In 1997 the Board made a similar determination when it issued public funds to Mayoral candidate Ruth Messinger based on the likelihood of a Democratic Party primary runoff election with Al Sharpton. When the BOE determined that there would be no runoff primary, Ms. Messinger became obligated to return to the Public Fund any portion of the public funds grant she received that exceeded her qualified campaign expenditures incurred for the runoff primary after the primary election and before the BOE announced that the runoff primary would not take place.

3 To the extent these restrictions on the timing of permitted runoff primary disbursements, withdrawals, or transfers conflict with prior statements of the Board in Advisory Opinion No. 1999-1 or elsewhere, those statements are hereby overruled by this Opinion. Board statements and Opinions remain in full force and effect in all other respects.

Otherwise, no spending limit will apply (except as otherwise provided in the Campaign Finance Act and the Rules for an expenditure that is an in-kind contribution to another participant. Rule 1-08(d)). Advisory Opinion No. 1997-2.