An advisory opinion has been requested on behalf of the Committee for David Dinkins II, Inc. (the "Committee") whether certain expenditures associated with a proposed "Youth Respect Campaign" that are paid by private entities constitute contributions to or expenditures by the Committee under the New York City Campaign Finance Act. The request describes the following relevant circumstances:
Following a number of reported incidents of extraordinarily serious sexual molestations and assaults on girls and young women at New York City swimming pools by groups of boys and young men in an activity referred to as "Whirlpooling," representatives of the Mayor's office, the Department of Youth Services and a private sector advertising company formulated a Youth Respect Campaign to establish a long term education strategy to instill self respect and to promote respect and tolerance for others.
A prototype button and a small quantity of flyers were conceived and created by Korey, Kay & Partners ("Korey"), a New York City advertising agency, without charge to the City. The flyers and buttons were exhibited at the announcement of the Youth Respect Campaign. The buttons and flyers have not been distributed to the public... Each of the flyers contains a "NYC" logo which includes the phrase, "David N. Dinkins, Mayor."
A Youth Speak Up Campaign is tentatively planned to begin in mid-September, immediately after the start of the new school year. The Youth Speak Up Campaign would provide youths the opportunity to speak up and to engage in dialogues with New York City officials on issues such as "Whirlpooling" in forums around the city. The purpose of the Youth Speak Up Campaign is to promote discussions about tolerance and respect for others while instilling a sense of self respect among the participants. The Youth Speak Up Campaign would provide give-away materials for the young people involved, including T-shirts and buttons... In addition the location of each forum would be decorated by a banner... The design for the proposed Youth Speak Up Campaign materials has been contributed by Korey who will bill the City only for their actual out of pocket expenses for materials. A corporate sponsor will pay for the cost of production of the T-shirts, buttons and banners in return for which its corporate logo will appear on each item produced. Each of the items produced will include the "NYC" logo with the phrase, "David N. Dinkins, Mayor."
A series of public service advertisements has also been planned by Korey. The 60 second radio advertisements are intended to discourage physical and verbal abuse and to encourage respect and tolerance for others. The advertising copy has been written by Korey... The advertisements would be aired by radio stations as public service advertisements at no cost. Each of the proposed advertisements includes the tag line, "A public service message brought to you by the City of New York, David N. Dinkins, Mayor."
Another series of advertisements would utilize professional athletes, musicians and other entertainers to present the message about respect and tolerance. The advertisements could be print, television or radio ads. The "stars" of the advertisements would appear at various events related to the Youth Respect Campaign and would contribute their time doing so. Copy for the ads has not been created. It is anticipated that the athletes, musicians and entertainers would donate their time as would those involved in the production of the ads. The ads would be run as public service advertisements at no cost to the City. Each of the ads would contain the logo or tag line as above1.
The request asks whether any of the following would be contributions to or expenditures by the Committee:
1) The value of the services provided by Korey, Kay and Partners in connection with the Youth Respect Campaign including the conceptualization and creation of artwork and/or copy for the flyers, T-shirts, buttons, banners and the various advertisements referred to above;
2) The costs donated by the corporate sponsor for the production of the T-shirts, buttons and flyers for the Youth Speak Up Campaign;
3) The costs and the value of the services provided by those involved in producing the advertisements as described above;
4) The value of the air time or newspaper space for the running of the various advertisements as described above.
In general, the manner in which the City chooses to perform public services of the kind described in the request is not regulated by the New York City Campaign Finance Act. Indeed, the Board has concluded that "the proper use of governmental resources for public purposes is not restricted by the... Act, regardless whether the expenditure arguably has an impact on a political campaign." Advisory Opinion No. 1993-5 (July 7, 1993); see also Advisory Opinions Nos. 1989-1 (January 3, 1989) and 1989-27 (June 27, 1989) 2. Because in this case private rather than governmental resources are at issue, the Board will examine the content of the Youth Respect Campaign to determine whether its relationship to the mayoral race is such that the private entities funding this public service campaign are actually making contributions to the mayor, a candidate participating in the New York City Campaign Finance Program, in his bid for re-election.
Unless found to be an independent expenditure3, the Act treats as a contribution any gift or payment "made in connection with the nomination for election, or election" of a candidate. New York City Administrative Code §3-702(8); see also Campaign Finance Board Rules 1-02, defining "in-kind contribution"; 1-04(g) (1) .
In determining whether private expenditures for public service campaign materials are "made in connection with the nomination for election, or election" of a public official, the Board will first consider:
1. whether the materials involve the solicitation of campaign contributions; or
2. whether the materials expressly advocate the election of the public official, or the defeat of his or her opponent.
See Advisory Opinion No. 1989-36 (July 19, 1989). If either circumstance exists, the private expenditures are in-kind contributions.
In the absence of these dispositive factors, the Board will consider other factors to determine whether the private expenditures are nonetheless "made in connection with" the election and, thus, are in-kind contributions. Among these factors are:
1.the purpose of the materials, including evidence that the purpose is to promote or facilitate the election of the public official;
2.whether the public service campaign is consistent with the public official's governmental powers and duties and how the use and prominence of the public official's name or likeness reflects this;
3.whether the materials are an expression by the public official of his or her views on public policy issues or issues brought up during the election campaign;
4. the timing of the public service campaign in relation to an election;
5.whether the distribution of the materials is targeted to the public official's electorate; and
6. the amount of control the public official has over the materials.
See Federal Election Commission Advisory Opinions Nos. 1989-32 (July 2, 1990); 1990-5 (April 27, 1990); 1982-15 (April 9, 1982); 1981-37 (October 13, 1981); 1978-88 (December 2, 1978).
The payments made by Korey and the corporate sponsor, and the broadcast time or newspaper space that would be donated for the public service announcements, do not appear to be "made in connection with the nomination for election, or election" of Mayor Dinkins on the basis of the two dispositive factors described above. Each of the promotional materials and advertisements proposed for the Youth Respect Campaign includes a routine and not particularly prominent reference to "David N. Dinkins, Mayor."4 This reference by itself, however, cannot be construed as soliciting contributions for or expressly advocating Dinkins' re-election or the defeat of his opponent. Thus, the Board must consider whether other relevant circumstances nonetheless show that the private funding of the Youth Respect Campaign are "in connection with" the mayoral election.
In the promotions and advertisements described in the request, the use of the Mayor's name is incidental to the purpose of the Youth Respect Campaign, the purpose of which is to combat a serious problem in a manner consistent with the Mayor's official governmental powers and duties. The materials, in the Board's view, are not themselves an expression of views on election campaign issues. While arguably the Mayor may have considerable control over the content of the materials and advertisements, which indeed will be distributed within an election campaign period, the target audience appears to be New York City youth, most of whom are not eligible to vote because they are under 18 years of age. Accordingly, the use of the Mayor's name in the manner described does not provide a sufficient basis for a conclusion that the private funding of the Youth Respect Campaign is made "in connection with" his bid for re-election5.
The conclusion of this opinion applies only to the facts and specific materials submitted concerning the Youth Respect Campaign as described in the advisory opinion request. If the actual conduct of the Youth Respect Campaign or the content of the materials deviates from what has been presented to the Board, the conclusion of this opinion may not be controlling. The result of this opinion should not be construed as controlling in all situations in which privately-funded advertisements or other material released during the election season may identify a public official, particularly if that identification is more prominent than in the instant case. If, in light of the factors outlined above, the Board determines in a given case that the identification of a public official in advertisements or other material is in connection with an upcoming election, the amount of private funds donated for the materials, or a part thereof, may be treated as an in-kind contribution by the private entity to the public official's election campaign.
NEW YORK CITY CAMPAIGN FINANCE BOARD
1 Submitted with the request as exhibits are copies of the flyers (two in English and one in Spanish), tentative designs for the T-shirt, button, and banner, and proposed language for the 60- second radio announcements. Letter of Henry T. Berger, dated August 24, 1993.
2 Where allegations are made that governmental resources are being improperly used for campaign purposes, the Board has declined to rule whether in-kind contributions have been made pending a determination by an agency with appropriate jurisdiction whether governmental funds were properly used. Advisory Opinion No. 1993-5 (July 7, 1993).
3 The request notes that representatives of the Mayor's office participated in the formulation of the Youth Respect Campaign. The request does not argue that the payments at issue constitute independent expenditures within the meaning of the Act and Campaign Finance Board rules, and this opinion therefore does not address that question. See Administrative Code §3-702(8); Rule 1-08(f).
4 Because the Mayor's picture or voice are not used in the Youth Respect Campaign promotion, it cannot be said that the candidate has made an "appearance" in these advertisements. Cf. Advisory Opinion No. 1993-6 (July 7, 1993) (the Board's most recent discussion of whether costs incurred by private entities in connection with a candidate's appearance constitute in-kind contributions and expenditures) and advisory opinions cited therein.
5 A formal complaint filed on behalf of the Giuliani and Badillo campaigns urges that the expenditures for the Youth Respect Campaign be treated as in-kind contributions to the Mayor's re-election campaign. Verified Complaint of John Gross and William Holzman, dated July 28, 1993. The Board will render a decision on that complaint in light of this advisory opinion.