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1989-34: Treatment of Certain Organization Payments as Contributions or Expenditures

Wednesday, July 19, 1989

An opinion has been requested whether the cost of events paid for by organizations, other than a candidate's authorized committee, are contributions to or expenditures by the candidate, in circumstances in which the candidate makes an appearance at the event. The Board has addressed the subject of candidate appearances in Advisory Opinions Nos. 1989-18, dated May 2, 1989, and 1989-26, dated June 12, 1989, and 1989-36, issued today. The following example has been described:

A local development corporation (LDC), a non-profit community organization, is sponsoring a series of breakfast meetings with the various mayoral candidates. All mayoral candidates are invited to speak to the LDC's Board members on issues of concern to the community. Each candidate will make a 20-25 minute address, followed by a 30 minute question and answer session.

The LDC does not make contributions and will not endorse any candidate. At the forum views will be expressed on a wide array of issues, solely for the purpose of enlightening Board members and guests.

Consolidated Edison is providing the space and refreshments for the breakfast series.

New York City Administrative Code §3-702(8) includes within the definition "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,... provided however, that none of the foregoing shall be deemed a contribution if it is made, taken or performed by a person or a political committee independent of the candidate or his or her agents or political committees authorized by such candidate pursuant to section 14-112 of the election law. For purposes of this subdivision, the term "independent of the candidate or his or her agents or political committees authorized by such candidate pursuant to section 14-112 of the election law&rquo; shall mean that the candidate or his or her agents or political committees so authorized by such candidate did not authorize, request, suggest, foster or cooperate in any such activity...

In Advisory Opinion No. 1989-26, dated June 12, 1989, the Board stated:

An appearance by a candidate at a campaign event paid for by the Committee clearly indicates that the candidate has "cooperated in" the activity. This is precisely the kind of activity that is conclusively not "independent." The cost of the event would be an in-kind contribution by the Committee and an expenditure by the candidate.

(Emphasis added.) The issues raised in the example described above require a determination whether an event is a "campaign" event, in other words whether payments for the event by persons other than the candidate or the candidate's authorized committees were "made in connection with the nomination for election, or election, of any candidate." If an event is not related to the candidate's campaign for office, payment for its costs would not be a contribution to, or expenditure by, a candidate appearing at the event.

The New York State Board of Elections has determined that the payments made by Consolidated Edison for the breakfast series to be held by the LDC are not contributions within the meaning of New York Election Law §14-100(9). See Letter of John Ciampoli, Deputy Counsel, State Board of Elections to Robert W. Walsh, Executive Director, 14th Street — Union Square Local Development Corporation (June 29, 1989). The Deputy Counsel of the State Board emphasized that the breakfast series was a "non-partisan educational program" administered by "a group which is not a political committee." Id.

The definition of "contribution" under Administrative Code §3-702(8) is derived from the definition set forth in New York Election Law §14-100(9). The Board notes that in enacting the Campaign Finance Act, the City Council intended to create "a voluntary system of public financing of local election campaigns... consistent with state law." Local Law No. 8 of 1988, §1. The Board views the State Board's interpretation of the term "contribution" to be persuasive precedent for resolving the issues raised about Consolidated Edison's payments for the LDC educational program and concludes that Consolidated Edison's provision of space and refreshments for the event described in example number 1 is likewise not a contribution under Administrative Code §3-702(8).

 

NEW YORK CITY CAMPAIGN FINANCE BOARD