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1993-5: Campaign’s Improper Use of Government to Be Determined By Other Agencies

Thursday, July 07, 2016

Several questions have been raised about whether government resources have been inappropriately used for campaign purposes on behalf of elected officials who are candidates participating in the New York City Campaign Finance Program. Specifically, the use of government resources has been questioned in the following situations:

1) A meeting attended by City officials. It is alleged that the meeting was held to discuss "campaign strategy" and that City officials may have traveled there in City cars, driven by City-employed drivers1.

2) The time that the mayor's press secretary and press office use to comment on campaign issues and to "launch a campaign attack" on an opposing mayoral2 candidate.

3) Television commercials advertising the sale of City bonds, which feature an elected official who is seeking re-election3.

4) Radio advertisements "prominently mentioning" the mayor that are paid for by the Metropolitan Transportation Authority, a public agency4.

No formal complaint has been received concerning any of these matters. See Campaign Finance Board Rule 7-01 (describing the procedures for the submission of formal complaints). The Board has determined to treat these submissions as requests for advisory opinions5 in order that it may clarify the standards applicable under the New York City Campaign Finance Act to government resources that are alleged to be used for campaign purposes.

In Advisory Opinion No. 1989-1 (January 3, 1989), the Board determined that

the expenditure limitations of the New York City Campaign Act were not intended to restrict the use of monies appropriated by the government for expenditures by a person holding public office and these expenditures are therefore outside the jurisdiction of the Board...

The Board elaborated on this conclusion in Advisory Opinion No. 1989-27 (June 27, 1989). This opinion concerned an elected official's use of a City car to travel to events at which the elected official endorsed other candidates. The Board emphasized that the propriety of this use of a government resource was not addressed by the Campaign Finance Act; rather, the Board concluded that the propriety of the use of government resources is a matter to be resolved by other agencies. Nonetheless, if the use, whether proper or improper, requires a reimbursement by the elected official's political committee, the expenditure for the reimbursement would be subject to the Act's limits.

The Board reiterates that the proper use of governmental resources for public purposes is not restricted by the Campaign Finance Act, regardless whether the expenditure arguably has an impact on a political campaign. The question whether government resources have been illegally or improperly used for a political campaign, or for any other private purpose, is addressed in other laws that are interpreted and enforced by other agencies, such as the Conflicts of Interest Board and the office of the District Attorney.

If an agency with the appropriate jurisdiction makes a determination that government resources have been improperly used, the Campaign Finance Board would make a determination, following the receipt of a formal complaint or Board investigation pursuant to Rule 7-01, to what extent the value of those resources have been used to promote or facilitate the nomination or election of a candidate participating in the New York City Campaign Finance Program and therefore should be charged against the participating candidate's spending limit. The improper use of these resources may be in-kind contributions, and thus subject to both the contribution and spending limits of the Act. See Administrative Code §3-702(8) ; 3-703(1)(f); 3-706; Rules 1-02, defining in-kind contribution; 1-04(g).

NEW YORK CITY CAMPAIGN FINANCE BOARD

1Letter of Peter J. Powers, on behalf of Giuliani for New York, dated June 22, 1993, enclosing an article appearing in the New York Post on June 22, 1993.

2 Letter of Peter J. Powers, on behalf of Giuliani for New York, dated June 23, 1993, enclosing an article appearing in New York Newsday on June 19, 1993.

3 Letter of Alan G. Hevesi to Nicole Gordon, dated June 29, 1993, enclosing two other letters and a press release, dated June 29, 1993. A letter from Peter J. Powers, on behalf of Giuliani for New York, dated June 29, 1993, appears to be related to the same facts but makes no allegation that government resources were used to purchase the television commercials. Questions concerning the purported use of private resources for campaign purposes are matters that are beyond the scope of this advisory opinion. Thus, the issues raised by the third Powers letter are addressed in a separate advisory opinion, No. 1993-6, issued today.

4 Letter of Peter J. Powers, on behalf of Giuliani for New York, dated July 2, 1993. No information has been submitted regarding the content of these advertisements. The Innis campaign has also raised questions about these advertisements. Letter of Niger Innis, dated July 2, 1993.

5 Campaign Finance Board advisory opinions do not resolve questions of fact. Rather, Board advisory opinions assume the facts as presented solely for the purpose of showing how the Board will apply the requirements of the Act in a given situation. Administrative Code §3-708(7).