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1989-18: Treatment of Luncheons as Contributions or Expenditures

Tuesday, May 02, 1989

An opinion has been requested whether particular activities constitute contributions and expenditures under the New York City Campaign Finance Act. Six examples have been described:

1) Candidate X telephones citizen A, whose endorsement X seeks, for the purpose of arranging a meeting with X to discuss campaign issues and X's candidacy. A invites X to lunch and picks up the check. Is the cost of the lunch a contribution by A to X's campaign? Is a portion of the cost of lunch a contribution to the campaign? Is the cost of lunch or a portion of the cost of lunch an expenditure by the campaign?

2) The same facts as in example 1, except A invites ten of his professional colleagues to join A and X for lunch. A again picks up the check. X is not informed prior to the lunch that others will be attending.

3) The same facts as in example 2, except that X is informed beforehand that A has invited a number of colleagues.

4) The same facts as in examples 2 or 3. In addition, A rents a private dining room for the lunch.

5) The same facts as in example 1, except that X is invited by A to a regular meeting of the latter's professional association at which lunch is served. X makes a short presentation.

6) The same facts as in examples 1 through 5, except that A is a member of X's campaign finance committee.

New York City Administrative Code §3-702(8) includes within the term "contribution":

(a) any gift, subscription, advance, or deposit of money or any thing of value, made in connection with the nomination for election, or election, of any candidate; ...

(c) any payment, by any person other than a candidate or a political committee authorized by the candidate, made in connection with the nomination for election, or election, of any candidate...

An "independent" activity is not a contribution, if the candidate or his or her agents did not "authorize, request, suggest, foster or cooperate in... the activity."

§3-702(8) 1. See also Campaign Finance Board Regulation §105(b) (3).

In each example described, it appears that at least a portion of the payment for lunch was "made in connection with the nomination for election, or election," of X, because the lunch was conducted for the purpose of discussing campaign issues and X's candidacy. The question in each case is whether, and to what extent, candidate X authorized, requested, suggested, fostered or cooperated in the activity for which payment was made by A.

1) X "cooperated in" the activity by accepting A's invitation to lunch. The portion of the lunch bill which represents the cost of X's lunch is thus a contribution by A and an expenditure by X. The remainder of the lunch bill, the cost of A's lunch, is neither a contribution by A nor an expenditure by X, since presumably A would have incurred that cost regardless of the meeting with X.

2, 3) The issue whether X was informed prior to the lunch that any of A's colleagues would be attending is not determinative because prior knowledge is not the only measure of "cooperating in" an activity. If X participates in a discussion of campaign issues and his or her candidacy with the larger group, X has "cooperated in" the activity and A's payment for the lunch costs of X and A's ten colleagues would be a contribution by A and an expenditure by X. If each of the ten colleagues pays his or her own lunch costs, A's contribution and X's expenditure would be the cost of X's lunch only.

4) A's payment for the dining room rental would be a contribution by A and an expenditure by X, if X "cooperated in" the renting of the private dining room. In this circumstance, X or his or her agents have cooperated in the activity if any of them has reason to know that a private room has been rented by another person, and X nonetheless proceeds to attend the lunch and discuss campaign issues and his or her candidacy.

5) It is unclear from the example described whether A regularly pays the lunch costs of the regular meeting of A's professional organization. Assuming that this is the regular procedure, A's payment of the professional association's lunch costs would not be a contribution by A or an expenditure by X since A would have incurred that cost regardless of X's presentation. A's payment of the cost of X's lunch, however, would be a contribution by A and an expenditure by X.

If A's payment of the lunch costs is not the usual practice of the professional association, then the payment would be a contribution by A and an expenditure by X if X or his or her agents had any reason to know that A was paying the lunch costs. See response to example 4 above.

6) If A is a member of X's campaign finance committee, A is an agent of X. Payments made by an agent of a candidate are not independent expenditures. See Campaign Finance Board Regulation §105(c) (1). Thus, A's use of his or her personal funds for the private room rental described in example 4 would be a contribution by A and an expenditure by X.

 

NEW YORK CITY CAMPAIGN FINANCE BOARD

1 For purposes of this opinion, it is assumed that the other statutory exceptions to the definition of "contribution", including volunteer services, events on residential premises, and certain travel expenses, are not applicable.