An opinion has been requested whether a candidate, who participated in the New York City Campaign Finance Program in the 1989 elections, may transfer funds from his 1989 campaign committee to a newly authorized committee. The following facts have been presented:
An incumbent Councilmember was re-elected at the 1989 general election. At the conclusion of that election his campaign committee (the "Campaign Committee") had a deficit.
In April 1990, the Councilmember was in need of funds to pay for 1990 expenses incidental to the holding of his public office in connection with acts undertaken in an official capacity and not for the purpose of promoting or facilitating his nomination or election or the defeat of his opponent. To that end, a new committee was formed to raise such funds and pay such expenses (the "Incidental Expense Committee"). Contributions for that purpose were orally solicited.
Several contributors responded. However, their checks were made payable to the Campaign Committee instead of to the Incidental Expense Committee.
Rather than return the contributions and ask that they be replaced by new checks made payable to the Incidental Expense Committee, the Campaign Committee would like to accept and report the contributions and then disburse the proceeds to the Incidental Expense Committee.
The New York City Campaign Finance Act (New York City Administrative Code §3-701, et seq.) does not, in general, restrict the transfer of monies between political committees authorized by the same candidate. Candidates are prohibited, however, from using excess campaign funds for non-campaign purposes prior to reimbursing the New York City Election Campaign Finance Fund ("the Fund") for any public funds received in the preceding election campaign. Administrative Code §3-710(2) (b). In Advisory Opinion No. 1989-55, dated December 5, 1989, the Board noted that a "candidate carries a heavy burden in demonstrating that undeposited contributions received by the 1989 campaign committee...were not in fact received for the 1989 elections...for purposes of...Administrative Code §3-710(2) (c)." (Emphasis in original.) See also Campaign Finance Board Rule 102(t) (prohibiting expenditures or transfers of campaign receipts until the candidate has made all required repayments to the Fund) 1.
To the extent that the Campaign Committee's receipt of the new contributions was inadvertent, and to the extent that it was not the intent of the candidate to solicit or use any of these contributions to pay outstanding liabilities from the 1989 election campaign, the Board would not consider the contributions to have been received for the candidate's 1989 campaign. The Fund reimbursement requirement of Administrative Code §3-710(2) (c) would therefore not apply to these contributions, and they could be transferred to the Incidental Expense Committee. Compare Advisory Opinion No. 1989-57, dated December 19, 1989 (listing other examples of contributions not subject to this requirement).
NEW YORK CITY CAMPAIGN FINANCE BOARD
1 For purposes of this opinion, the Board assumes that the candidate is not subject to the other Fund repayment requirements of Administrative Code §3-710(2) (a) (excess Fund payments), (2) (b) (use of public funds for purposes other than qualified campaign expenditures), and (3) (disqualification from the ballot because of fraudulent acts).