Re: New York City Administrative Code §3-710(2) (c); Campaign Finance Board Rules 1-02; 1-07(a),(b),(c); 1-08(d); 3-02; 3-03(a); 5-03(e); Op. No. 1994-1.
On February 10, 1994, it was announced that Council member Alfred Cerullo, III will resign as Council member for the fifty-first Council District to accept the position of Consumer Affairs Commissioner. When Council member Cerullo resigns, the mayor will proclaim a special election to fill the vacancy in the fifty-first district. New York City Charter §25(b). In addition, primary and general elections will be held for this office later this year. Id. This advisory opinion outlines certain disclosure and expenditure limit requirements that will apply to candidates in the special election who choose to participate in the New York City Campaign Finance Program1.
The First Disclosure Statement. Committees raising and/or spending funds for the special election ("special election committees") must first file disclosure statements with the Campaign Finance Board 32 days before the special election is held. Campaign Finance Board Rule 3-02(a). The closing date of the first reporting period for every special election committee will be the thirty-sixth day before the special election. Rule 3-03(a). The opening date will be January 12, 1994 or the day the committee was first authorized, whichever is later. Id. The amount of surplus funds from any previous election in which the committee was involved must be determined, reported, and attributed in the first disclosure statement based on the committee's cash balance and outstanding debts as of the opening date. See Rule 1-07(a), (c).
The Last Disclosure Statement. If a special election committee does not raise or spend funds for the primary or general election that will be held for the fifty-first district in 1994, its last Campaign Finance Board disclosure statement for the special election will be due no later than July 15, 1994.
For those special election committees that go on to raise or spend funds for the primary or general election to be held later this year, the last disclosure statement for the special election will be the 27 day post-special election statement. Rule 3-02(d). The disclosure statement these committees must then file on July 15, 1994 will be for the 1994 primary and general elections. See Rule 3-02. The July 15, 1994 statement must cover the period from the closing date of the 27 day post-special election statement through July 11, 1994. All transactions reported in this July 15 statement will be presumed to be subject to the Program limits and other requirements for the primary and general elections. This July 15 statement must also report the amount of surplus funds from the special election, if any. This amount is based on the committee's cash balance and outstanding debt as of the closing date of the 27-day post-special election statement. See Rule 1-07(a), (b).
A committee must repay unspent campaign funds, if any, when it files its last disclosure statement for the special election, as described above. See Administrative Code §3-710(2) (c) and Rule 1-02, defining "unspent campaign funds"; 5-03(e). Until unspent campaign funds are repaid, special election committees may not make expenditures for the primary or general elections. Id. Furthermore, matchable contribution claims may not be made for the special election after the committee's last disclosure statement for the special election.
Expenditures will be presumed to be subject to the special election expenditure limit once a special election was reasonably anticipated. See Advisory Opinion No. 1992-3 (December 16, 1992). In this case, unless information to the contrary is brought to the Board's attention, the Board will consider that a special election was reasonably anticipated as of February 10, 1994. The expenditure limit covers all expenditures made to promote or facilitate the candidate's election, Rule 1-08(d), including expenditures made to "test the waters". See Advisory Opinion No. 1989-9 (January 25, 1989).
Participating candidates carry the burden of demonstrating that any expenditures incurred after the special election were, in fact, for the special election. This demonstration is necessary not only to avoid coverage by any primary and general election expenditure limits, if the special election committee takes part in those elections, but also because special election committees may not make expenditures for a primary or general election until any unspent campaign funds from the special election are repaid. See Administrative Code §3-710(2) (c) and Rule 5-03(e) (2), discussed above.
NEW YORK CITY CAMPAIGN FINANCE BOARD
1 This advisory opinion does not summarize all Campaign Finance Program requirements that apply to candidates in a special election to fill the vacancy pending in the fifty-first Council district. See, generally, New York City Administrative Code §§3-701, et seq.; New York City Campaign Finance Board Rules (52 RCNY §§1-01, et seq.). The requirements outlined in this advisory opinion may or may not apply in future special elections, depending on when the vacancy occurs in relation to regularly scheduled primary and general elections for the same office. The analysis in this advisory opinion does not apply to committees that do not raise or spend any funds for the special election.