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2007-2: Requirements for Potential Second Special Election and Subsequent 2007 Primary and General Elections (City Council, 40th District)

Tuesday, March 06, 2007

Re:  Administrative Code §§ 3-702(3); 3-703(1)(c), (f), (i), (j), (2)(a)(iv); 3-705(2)(a); 3-706(1)(a), (e), (2), (3); 3-710(2)(c); 3-801; 3-802; Campaign Finance Board Rules 1-04(f); 1-05(h); 1-07(a); 1-08(c)(1), (j); 5-03(e)(2); 7-03(c); 11-01—11-05; Advisory Opinion Nos. 1991-2, 2000-6; Op. No. 2007-2.

On February 20, 2007, Mathieu Eugene received the most votes in the special election held to fill the vacancy in the 40th Council District created by Councilmember Yvette D. Clarke's election to Congress on November 7, 2006. However, Mr. Eugene's eligibility to take office has been cast into doubt due to questions concerning his residency. If Mr. Eugene is found ineligible to take office, a second special election will likely be held. This Opinion outlines the requirements of the New York City Campaign Finance Program (the "Program") for this possible special election (the "New Special Election") and the subsequent 2007 primary and general elections.1

Deadline to Join the Program

Candidates who wish to join the Program for the New Special Election will have to file a new certification. 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 New Special Election, there will be a primary and general election in September and November 2007. See NYC Charter § 25(b)(2). The deadline for filing a certification for the primary and general election is June 1, 2007. Administrative Code § 3-703(1)(c). Candidates who participated in the February 20, 2007 special election must create a new committee and open a new bank account for the New Special Election.2

Contribution Limit, Expenditure Limit, and Maximum Public Funds Payment

The following limits would apply for the New Special Election:

Contribution limit:   $1,375;3
Expenditure limit: $150,000;4
Public funds maximum:  $82,500.

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, candidates in the New Special Election must meet the threshold requirements for eligibility for public funds, regardless whether they previously met these requirements for the February 20, 2007 special election.5  These threshold eligibility requirements are the same as those for a primary or general election.  See Administrative Code § 3-703(1)(j), (2)(a)(iv)See also Advisory Opinion No. 1991-2 (April 9, 1991).  The Act, however, provides a definition for the "matchable contributions" that comprise the special election threshold that is different from the definition for those that comprise the primary and general election threshold: the special election threshold may include only contributions of up to one hundred twenty-five dollars, while contributions of up to two hundred fifty dollars may be applied to the primary and general election threshold.  See Administrative Code § 3-702(3).

Previous Financial Transactions

For candidates running in the New Special Election, disclosure statements filed with the Board after the candidate's most recent election – in most cases this will have been the February 20, 2007 special election – will be considered to be for the New 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 2007 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 after the candidate's last election – again, in most cases this will have been the February 20, 2007 special election – are presumed to be for the New Special Election.  Because some of these contributions will have been accepted with the reasonable belief that they were to be used for the 2007 primary and general elections, however, the Board will consider that presumption to be rebutted for any contribution:

  • received on or before the earlier of: (i) the date Mr. Eugene is determined to be ineligible to take office; or (ii) the date the New Special Election is announced,6 and
  • not exceeding the contribution limit in effect for the 2007 elections.

The candidates however, must abide by the applicable contribution limit for the New Special Election. Therefore, for any contributions in excess of the contribution limit for the New Special Election, the candidates may:

  • refund the excess portion to the contributor, or
  • attribute the excess of each contribution to the 2007 primary and general elections.7

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)(a).8  The portion of contributions accepted in excess of the contribution limit for the New Special Election that the candidate has attributed in the manner described above will be eligible to be claimed as matching contributions for the 2007 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 New Special Election after the candidate's last election – and again, in most cases this will have been the February 20, 2007 special election – are presumed to be for the New Special Election and will be subject to the New Special Election expenditure limit.  In addition, participating candidates who received public funds may not make expenditures after the New Special Election except for narrowly defined New Special Election purposes until unspent campaign funds from the New Special Election are repaid.  See Administrative Code § 3-710(2)(c); Rule 5-03(e).  Further, any post-New Special Election expenditures made by the New Special Election committee will be presumed to be for the 2007 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 New Special Election, whether a Program participant or a non-participant, will be subject to the limitations and disclosure requirements for the financing of transition and inauguration activities.  See Administrative Code §§ 3-801; 3-802; Rules 11-01—11-05.

NEW YORK CITY CAMPAIGN FINANCE BOARD

1 While the New Special Election may not occur, the Board is issuing this Advisory Opinion at this time for the convenience of individuals who may be affected by its conclusions. In the event the New Special Election does take place, the Board will set forth the actual deadlines for candidates to join the Program and for the filing of disclosure statements after the Mayor announces the date of the election.

2 Candidates who intended to run in the February 20, 2007 special election but who were not on the ballot and did not run as write-in candidates may use their existing bank accounts and their existing committees provided they amend their registration with the Board of Elections to reflect the new election cycle. However, such candidates must file a new Filer Registration and a new Certification with the Board.

3 The $1,375 contribution limit applies to both participating and non-participating candidates. See § 3-719(2)(b).

4 The separate $40,000 expenditure limit for the three calendar years preceding the year of the election applies only to regularly scheduled elections and is not available for the New Special Election. See Administrative Code § 3-706(2).

5 In addition, candidates who owe repayments of public funds from an earlier election, including the February 20, 2007 special election, or who have significant unresolved compliance issues, will not be eligible to receive public funds for the New Special Election. The Board will notify candidates of such issues.

6 Any contribution accepted after this date which exceeds the contribution limit for the New Special Election will be considered a violation of the Campaign Finance Act.

7 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 New Special Election. The Board will provide candidates with individual guidance on disclosure, recordkeeping, and maintenance of separate committees and bank accounts.

8 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.