Re: Charter §§1052(b); 1053; Administrative Code §§3-703(1) (c), (f), (i); 3-705(2) (b); 3-706(1) (a), (e), (2), (3); 3-801; 3-802; Campaign Finance Board Rules 1-04(f); 1-05(h); 1-07(a); 1-08(c) (1), (j); 7-03(c); 11-01 - 11-05; Advisory Opinion Nos. 1991-2, 1992-3; Op. No. 2000-6.
On November 7, 2000, Councilman Jose Rivera was elected to the New York State Assembly, thereby leaving an anticipated vacancy in the 15th City Council District. When that vacancy occurs, the Mayor "shall proclaim," within three days of the vacancy, a date for a special election to fill the vacancy which is approximately 45 days after the date of the announcement. See NYC Charter §25(b), et seq. This Opinion outlines the requirements of the New York City Campaign Finance Program (the "Program") for this anticipated special election (the "Special Election") and the subsequent 2001 primary and general elections.1
Deadline to Join the Program
The New York City Campaign Finance Act (the "Act") provides that "the deadline for filing such certification for a special election to fill a vacancy shall be on the seventh day after the proclamation of such special election." New York City Administrative Code ("Administrative Code") §3-703(1) (c). Following the Special Election, there will be a subsequent primary and general election in September and November 2001. See NYC Charter §25(b) (5). The deadline for filing a certification for the primary and general election is June 1, 2001. Administrative Code §3-703(1) (c).
Contribution Limit, Expenditure Limit, and Maximum Public Funds Payment
The following limits would apply to candidates joining the Program for the Special Election:
Contribution limit : $1,250;
Expenditure limit: $137,000;2
Public funds maximum: $75,350.
Administrative Code §§3-703(1) (f), (i); 3-705(2) (b); 3-706(1) (a), (e).
Public Funds Payments
To be eligible for public matching funds, a participant in the Special Election must meet the same threshold eligibility requirement as candidates in a primary or general election. See Administrative Code §3-703(1) (j), (2) (a). See also Advisory Opinion No. 1991-2 (April 9, 1991). The Act, however, contains definitions for the "matchable contributions" that comprise the special election threshold that are different from the definitions for those that comprise the primary and general election threshold. The special election threshold may include only contributions of up to five hundred dollars, while contributions of up to one thousand dollars may be applied to the primary and general election threshold. See Administrative Code §3-702(3).
Previous Financial Transactions
For candidates running for City Council in the Special Election, disclosure statements filed with the Board and the Board of Elections through January 15, 2001 will be considered to be for the Special Election, as provided in Rules 1-04(f), 1-05(h), 1-08(c) (1), and 7-03(c), notwithstanding any original intent that these statements pertained to the 2001 primary and general elections.
According to Rule 1-04(f), a contribution is presumed to be accepted for the first election in which the participant is a candidate following the day that it is received. Thus, all contributions received prior to the Special Election are presumed to be for that election. Because some of these contributions will have been accepted with the reasonable belief that they were to be used for the 2001 elections, however, the Board will consider that presumption to be rebutted for any contribution:
- received on or before November 7, 2000,3 and
- not exceeding the contribution limit in effect for the 2001 elections.
The candidates however, must abide by the applicable contribution limit for the Special Election. Therefore, for any contributions accepted on or before November 7, 2000 which are in excess of the contribution limit for the Special Election, the candidates may:
- refund the excess portion to the contributor, or
- attribute the excess of each contribution to the 2001 primary and general elections.4
Matchable contributions previously claimed in disclosure statements filed with the Campaign Finance Board through January 15, 2001 may be matchable with public funds for the special election.5 These contributions will be matchable at a rate of four dollars for each one dollar of matchable contributions up to five hundred dollars in public funds per contributor. Administrative Code §3-705(2) (b). The portion of contributions accepted in excess of the contribution limit for the Special Election that the candidate has attributed in the manner described above will be eligible to be claimed as matching contributions for the 2001 elections.
Pursuant to Rule 1-08(c) (1), expenditures are presumed to be for the candidate's next following election. Therefore, all expenditures made prior to the Special Election will be presumed to be made for that election and subject to the Special Election expenditure limit. In addition, participating candidates may not make expenditures after the Special Election except for narrowly defined Special Election purposes until unspent campaign funds from the Special Election are repaid. See Administrative Code §3-710(2) (c); Rule 5-03(e) (2). Further, any post-Special Election expenditures made by the Special Election committee will be presumed to be for the next following primary and general elections and covered by the expenditure limits applicable for those elections. See Rules 1-08(c) (1); 5-03(e) (2).
Transition and Inaugural Activities
The winner of the Special Election, whether a Program participant or a non-participant, is subject to the limitations and disclosure requirements for the financing of transition or inauguration into office activities. See Administrative Code §§3-801; 3-802; Rules 11-01 - 11-05.
NEW YORK CITY CAMPAIGN FINANCE BOARD
1 While the special election has not yet been announced and will not be announced before January 1, 2001 (when the vacancy will occur), the Board is issuing this Advisory Opinion at this time for the convenience of individuals who may be affected by its conclusions. When the Mayor proclaims the date for the Special Election, the Board will set forth the actual deadlines for candidates to join the Program and for the filing of disclosure statements for the Special Election.
2 The separate $24,000 expenditure limit for calendar years 1998 and 1999 (Campaign Finance Board ("Board") Rule 1-08(j)), and the separate $40,000 expenditure limit for calendar year 2000 (Administrative Code §3-706(2)), are applicable only to regularly scheduled elections and are not available for the Special Election. Advisory Opinion No. 1992-3 (December 16, 1992).
3 After this date, the date Councilman Rivera was elected to the New York State Assembly, candidates had knowledge that a special election would likely occur and, thus, that all contributions accepted after that date would be presumed by the Board to be for the Special Election. Therefore, any contribution accepted after November 7, 2000 which exceeds the contribution limit for the Special Election will be considered a violation of the Campaign Finance Act.
4 The Board will assist candidates in making any required attribution. Candidates will be required to transfer the excess contributions they choose to keep to a bank account other than that being used for the Special Election. The Board will provide candidates with individual guidance on disclosure, recordkeeping, and maintenance of separate committees and bank accounts.
5 The Rule 1-07(a) prohibition against matching contributions originally received for a different election does not apply to contributions originally received for a future election to an office covered by the Program that, pursuant to Rule 1-04(f), are ultimately used for an intervening election to fill a vacancy in an office covered by the Program.