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2000-4: Campaign’s Illegal or Improper Use of Government to Be Determined By Other Agencies

Thursday, September 14, 2000

Re: Charter §1136.1; Administrative Code §§§3-702(8); 3-703(1)(f), 3-706; Campaign Finance Board Rules 1-02; 1-04(g); Op. No. 2000-4

New York City Charter Section 1136.1, which became effective on September 25, 1998, makes it a violation of the section for an officer or employee of the City who is a candidate for nomination or election to any elective City office, or the spouse of such officer or employee: (i) to appear in a government funded television, or radio or printed advertisement or on the Internet from January 1st of the election year through the day of the last election that year for that office; (ii) to use government funds for a mass mailing that is placed in the mail less than thirty days prior to the primary or general election; or (iii) to use government funds for a public communication, including information placed on the Internet, that contains an electioneering message urging the election or defeat of a particular candidate for City office, supporting or opposing a particular political party, or supporting or opposing a particular referendum question. New York City Charter §1136.1(1). Section 1136.1 also provides for certain exceptions to these prohibitions, among them, for ordinary communications between elected officials and their constituents. New York City Charter §1136.1(2). The knowing violation of Section 1136.1 is a misdemeanor. New York City Charter §1136.1(4).

A question has been raised about how this new law will be enforced in the case of candidates who choose to participate in the New York City Campaign Finance Program (the "Program"). In Advisory Opinion No. 1989-1 (January 3, 1989), the Campaign Finance Board (the "Board") determined that:

the expenditure limitations of the New York City Campaign Finance 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 Opinions Nos. 1989-27 (June 27, 1989) (elected official's use of a City car to travel to events at which elected official endorsed candidates) and 1993-5 (July 7, 1993) (use of government resources for various campaign activities).

In Advisory Opinion No. 1993-5, the Board reiterated its conclusion 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." (Emphasis added.) The Board also stated that "the question whether government resources have been illegally or improperly used... is addressed in other laws that are interpreted and enforced by other agencies..." If such an agency makes a determination that government resources have been used improperly, the Board would then make a determination to what extent the value of those resources had been used to promote or facilitate the participating candidate's nomination or election, and, therefore, should be charged against the candidate's spending limit. See Advisory Opinion No. 1993-5 (July 7, 1993).

The passage of Charter Section 1136.1 does not change these conclusions, but rather alters the definition of the "proper use of governmental resources." Therefore, the Board reiterates its conclusion that by itself the expenditure of public resources by a person holding office is outside the jurisdiction of the Board.

The question whether government resources have been illegally or improperly used for a political campaign under Section 1136.1 or any other law governing the use of such resources will be interpreted and enforced by other agencies, such as the Conflicts of Interest Board, the Department of Investigation, the New York City Law Department, and the offices of the district attorneys. If an agency with the appropriate jurisdiction makes a determination that government resources have been improperly used, the Board would make a determination, following the receipt of a formal complaint or Board investigation pursuant to Rule 7-01 (procedures for filing complaints and conducting investigations) to what extent the value of those resources has been used to promote or facilitate the nomination or election of a candidate participating in the Program, and, therefore, should be charged against the participating candidate's spending limit. The improper use of government resources may be in-kind contributions, and thus, subject to both the contribution and spending limits of the Campaign Finance Act. See New York City Administrative Code §§3-702(8), 3-703(1)(f), 3-706; and Rules 1-02, 1-04(g).

 

NEW YORK CITY CAMPAIGN FINANCE BOARD