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2006-1: Public Servant Candidates Prohibited From Using Government Resources to Distribute Mass Mailings within 90 Days of an Election for any Elective Office, Including Party District Leader, Subject to Certain Exceptions

Tuesday, June 13, 2006

Re: N.Y. Election Law §§ 1-104(5), (9); New York City Charter §§ 1136.1(1)(d), (g), (2)(b), (4); Administrative Code § 3-702(10); Advisory Opinions Nos. 1989-1, 1989-27, 1993-5, 1993-9, 2000-1, 2000-4; Op. No. 2006-1.

The New York City Campaign Finance Board (the "Board") has received an inquiry from the counsel to the City Council asking whether the New York City Charter ("Charter") § 1136.1(2)(b) would prohibit Council members who are running for the position of party district leader in the September 12, 2006 primary election from sending mass mailings less than ninety days prior to the election. The Board is the proper governmental body to resolve this question because the Charter lodges power in the Board to interpret and enforce Charter § 1136.1(2)(b). Because the inquiry raises a matter of general public interest, the Board has determined to issue an advisory opinion to provide clarification to candidates concerning the relevance of Charter § 1136.1(2)(b) to elections for party offices.

Charter § 1136.1(2)(b) (the "Ninety-Day Rule"), as amended by the City Council in December 2004, prohibits a public servant from using government resources to distribute mass mailings within ninety days of an election in which he or she is a candidate for any elective office, subject to certain exceptions, providing that:

No public servant who is a candidate for nomination or election to any elective office or the spouse of such public servant shall use, cause another person to use, or participate in the use of governmental funds or resources for a mass mailing that is postmarked, if mailed, or delivered, if by other means, less than ninety days prior to any primary or general election for any elective office for which office such person is a candidate for nomination or election..

Charter § 1136.1(2)(b).

The City Council, in its December 2004 amendments, lodged power in the Board to enforce Charter § 1136.1(2)(b) and gave the Board jurisdiction to regulate all "public servants" who run for "elective office," as defined by Charter § 1136.1(1)(g) and (d), in connection with the Ninety-Day Rule.1Charter § 1136.1(4).2

The purpose of Charter § 1136.1(2)(b) is to create a more level playing field in local elections by limiting an office-holder's use of public resources for mass mailings in the months preceding an election. By prohibiting the mass distribution of literature at government expense during the election season, the Ninety-Day Rule prevents potential mailings by office-holders at public expense to influence voters as an election campaign advances.

Whether the Ninety-Day Rule applies to City Council members who are running for a party office depends on: (1) whether a City Council member is a "public servant" pursuant to Charter § 1136.1(1)(g); and (2) whether the position of district leader is an "elective office" pursuant to Charter § 1136.1(1)(d).

Charter § 1136.1(1)(g) defines a "public servant" as including "all officials, officers and employees of the city, including members of community boards and members of advisory committees, except unpaid members of advisory committees shall not be public servants." Because City Council members are officers of the City, they are "public servants" and subject to the Ninety-Day Rule.

Charter § 1136.1(1)(d) defines "elective office" as "any elective office, including federal, state and local offices." (Emphasis added.) The section is drafted broadly to encompass all elective offices, regardless whether the offices are covered by the Act, and to authorize the Board to regulate candidates for all such offices.3 A party district leader is elected by all voters in his or her district who are enrolled in the relevant political party. If an election for district leader is contested, the names of qualifying candidates for the office appear on the primary election ballot. Because a district leader is elected in the party's primary election by direct vote, the position falls within the definition of "elective office" provided in Charter § 1136.1(1)(d). Whether an office is "public" is not relevant to the determination whether the office falls within the Charter's broad definition of "elective office." The dispositive characteristic is whether an office is elected.

State law and considerations of public policy also support this interpretation of Charter § 1136.1(1)(d). New York State election law defines a "primary election" as the "mandated election at which enrolled members of a party may vote for the purpose of nominating party candidates and electing party officers," indicating that party officers are "elected" in a primary election. Election Law § 1-104(9) (emphasis added). State election law also states that a "party officer" is one who "holds any party position or any party office whether by election, appointment or otherwise," confirming that the law contemplates that some party officers are indeed "elected." Election Law § 1-104(5). Further, applying the Ninety-Day Rule to prohibit mass mailings in the period preceding elections for party district leaders would effectuate the purpose of Charter § 1136.1 by preventing the use of City taxpayer funds to enhance the political campaigns of public servants. Under Charter § 1136.1, the use of City funds for mailings should not create an advantage for an office-holder during the course of a campaign, whether it is for a party office or public office.

For the foregoing reasons, the Board concludes that the Ninety-Day Rule, Charter § 1136.1(2)(b), does apply to City Council members who choose to run for elective party office.

NEW YORK CITY CAMPAIGN FINANCE BOARD

1 The Board had not sought – indeed counseled against – the expansion of its jurisdiction in connection with the Ninety-Day Rule. Until the December 2004 amendments to the Charter and the New York City Campaign Finance Act (the "Act"), Administrative Code § 3-701, et seq., the Board had determined that the Charter did not give the Board jurisdiction to regulate the use of government resources by public officials, and that other agencies, such as the Conflicts of Interest Board, had jurisdiction over this area. See New York City Campaign Finance Board Advisory Opinion No. 2000-4 at 2 (September 14, 2000) ("the expenditure of public resources by a person holding office is outside the jurisdiction of the Board"); Advisory Opinion No. 2000-1, at n. 4 (March 7, 2000); Advisory Opinion No. 1993-9 (September 9, 1993); Advisory Opinion No. 1993-5 (July 7, 1993); Advisory Opinion No. 1989-27 (June 27, 1989); Advisory Opinion No. 1989-1 (January 3, 1989). The Board's traditional role has been to address campaign finance issues as raised in the cases of candidates running for the five City offices covered under the Act. See Administrative Code § 3-702(10). Nonetheless, having been given jurisdiction by the City Council to rule on the instant matter, the Board of course must address it.

2 Charter § 1136.1(4) provides in pertinent part that: "The campaign finance board shall have the power to investigate and determine whether any use of governmental funds or resources pursuant to paragraph (b) of subdivision two of this section is a violation of such paragraph and, if such violation is found, whether such use of government resources also violates or constitutes a contribution and/or expenditure under chapter seven of title three of the administrative code of the city of New York or any rule promulgated thereunder. The campaign finance board may assess civil penalties, upon giving written notice and the opportunity to appear before the board, against candidates for offices covered by the system of campaign finance reform, in an amount not in excess of ten thousand dollars for each such violation."

It does not appear that the Board can assess penalties against a public servant who is running for an "elective office" that is not covered by the Act, however, because Charter § 1136.1(4) states that civil penalties may be assessed only "against candidates for offices covered by the system of campaign finance reform." Charter § 1136.1(4).

This advisory opinion determines only the question presented and does not address whether a public servant's particular mass mailing would be a contribution or expenditure under the Act or whether a violation of the Charter or Act would be found.

3 Prior to the 2004 amendments, Charter § 1136.1 and its prohibition of mass mailings in the 30 days before an election applied to only officers and employees of the City who were candidates for elective City office.