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2007-6: Use of Campaign Funds or Personal Funds for Certain Advertisements and Inclusion of City Office Contact Information in Such Advertisements

Friday, December 21, 2007

Re: New York City Charter §§ 1136.1(1)(b), 1136.1(2)(a), 1136.1(2)(b), 1136.1(3), 1136.1(4), 2604(b)(9), 2604(b)(11); Administrative Code §§ 3-702(1), 3-702(2), 3-702(8), 3-702(13), 3-702(14), 3-703(1)(h), 3-703(1)(f), 3-704(1), 3-706, 3-710(2)(c); Campaign Finance Board Rule Nos. 1-02, 1-03(a), 1-03(a)(2), 1-04, 1-04(g), 1-08, 1-08(g), 1-08(g)(2), 5-01(n), 5-03(e), 5-03(e)(1), 5-03(e)(2)(ii); City Council Resolution No. 1168-2007; City Council Rule No. 2.65; Advisory Opinion Nos. 1989-1, 2000-4, 2006-1, 2007-1, 2007-3, Op. No. 2007-6.

The New York City Campaign Finance Board (the "Board") has received an inquiry from City Council Member Peter F. Vallone, Jr.,1 as to whether advertisements in a newspaper or journal, or information on a Council member's campaign website, in each case paid for with campaign funds, may include City office contact information.  Subsequently, the Council passed Resolution No. 1168-2007, which added new Rule 2.65, entitled "Prohibition Against Using Funds from Operating Expenses for Certain Advertisements" ("City Council Rule 2.65").2 The Board then received a telephone inquiry from counsel to the City Council as to whether campaign funds or personal funds may be used for certain advertisements and whether such advertisements may contain City office contact information or campaign office contact information. Because these inquiries concerning advertising 3 raise matters of general public interest, the Board has determined to issue an advisory opinion.  These questions implicate core Board values including, but not limited to, the importance of (1) leveling the playing field between candidates who are elected officials and candidates who are not; and (2) directing candidates who also are City elected officials to keep City business and campaign business as separate and distinct as possible.

Candidates Who are Public Servants May Use Government Resources for Advertising Which Serves a Public Purpose

The Charter Allows Use of Government Resources for Advertising with a Public Purpose

The New York City Charter (the "Charter") allows use of government resources for advertising with a public purpose, with certain restrictions. The Charter prohibits public servants who are candidates for nomination or election from using government resources for advertising from January of an election year until the day after the elections.4 The Charter also prohibits public servants' use of government resources for a mass mailing sent less than 90 days prior to any primary or general election, subject to certain exceptions.5 The Board has the power to investigate and determine whether a violation of the mass mailing prohibition has occurred.6

Government funds and resources may be used for advertisements required by law; communications necessary to safeguard public health and safety; standard communications in response to inquiries or requests; ordinary communications between public servants and members of the public, or between elected officials and their constituents; bona fide news coverage in print and electronic media; and debates among candidates or other public education forums.7

City Council Rules Allow Use of Government Funds for Advertising with a Public Purpose

City Council Rule 2.65 permits Council members to use Council funds for advertising which has a public purpose, and sets forth the proper uses for these funds.8  The City Council Rule restricts advertising paid for with Council funds (City funds appropriated to the Council) to that which informs the public about a government function or a government-sponsored event. The Rule:

  • Prohibits advertisements from being published in organization newsletters, journals or bulletins unless published at least quarterly and distributed beyond membership (Rule 2.65(a));
  • Restricts advertisements to "informational or educational content relating to a governmental function or a government-sponsored event" (Rule 2.65(b)(i));
  • Prohibits holiday, seasonal, commemorative, and congratulatory advertisements (Rule 2.65(b)(ii)); and
  • Prohibits use in advertisements of a Council Member's likeness, picture, or voice (Rule 2.65(b)(iii)).9

Candidates May Not Use Campaign Funds for Advertisements for Which Government Resources May Be Used

Campaign funds may not be used for advertisements for which government resources may be used.10 We recognize that City Council Rule 2.65 is designed to limit the expenditure of government resources more than under previous law. However, campaign funds cannot be used to bridge any perceived gap. While some campaign funds come from private sources, i.e., campaign contributions, campaign funds are not private money. They therefore cannot be spent to promote City resources. See "Use of Candidates' Personal Funds," below. Campaign funds may only be used for expenditures, including advertisements, that further a candidate's nomination or election. Because of the need to ensure that campaign funds – and public funds in particular – are spent properly, the New York City Campaign Finance Act (the "Act") (New York City Administrative Code ("Admin. Code") §§ 3-701, et seq.) and New York City Campaign Finance Board Rules (the "Rules") provide that a candidate's principal committee may make expenditures only to further a candidate's nomination or election.11

Once a candidate establishes a campaign committee, campaign-related expenditures must be made with campaign funds. No other expenditures may be made with campaign funds. Making an expenditure with campaign funds for a non-campaign-related purpose is a violation of the Act and Rules and may result in a penalty being assessed by the Board.12 In addition, where expenditures have been made with campaign funds for a non-campaign-related purpose, the non-campaign-related expenditures will be excluded from the expenditures of the campaign when making the "unspent campaign funds" calculation, possibly creating a repayment obligation for a participating candidate.13

As noted above, City Council Rule 2.65 allows City funds to be used for advertisements that consist of "informational or educational content relating to a governmental function or a government-sponsored event."14 In addition, the Charter provides that governmental funds may be used for advertisements required by law; communications necessary to safeguard public health and safety; standard communications in response to inquiries or requests; ordinary communications between public servants and members of the public or between elected officials and their constituents; bona fide news coverage in print and electronic media; and debates among candidates or other public education forums.15 These types of communications do not further a candidate's nomination or election, and therefore they may not be paid for with campaign funds.16 Campaign Finance Board Advisory Opinion No. 2007-3 states that:

Candidates who are elected officials should be particularly careful
that any expenditures by their principal committees are strictly in furtherance of their campaign, and are not constituent services
that may provide some ancillary or tenuous campaign benefit.17

Receipts, which include all monetary and in-kind contributions received by a candidate, may only be used to pay expenses incurred in a particular election.18 Thus, campaign funds, including public funds, may not be used for advertisements which could have been paid for with government funds, including constituent services advertisements.19

Candidates Must Use Campaign Funds for Campaign-Related Advertisements, Including Congratulatory, Seasonal, and Commemorative Advertisements, and Journal Ads

Candidates must use campaign funds to pay for congratulatory, seasonal, or commemorative advertisements and journal ads ordered for placement prior to an election. These are campaign-related expenditures that promote a candidate and therefore further the candidate's nomination or election.20 Other ads which can be construed as self-promotional may also be construed as campaign-related and therefore are subject to regulation under the Act.21

The Board, therefore, is amplifying the Constituent Services/Community Outreach section of Advisory Opinion No. 2007-3 to make clear that congratulatory, seasonal, and/or commemorative advertisements, including invitations to congratulatory, seasonal, and/or commemorative gatherings, are campaign-related expenditures,22 and that expenditures of campaign funds for advertising count toward the expenditure limits established by the Act.23

Post-election congratulatory, seasonal or commemorative advertisements and journal ads are governed by the Board's rules which permit post-election expenditures only for routine activities involving nominal spending associated with winding up a campaign.24 Post-election expenditures may include a "holiday card mailing to contributors" and "thank you notes for contributors, campaign volunteers, and staff."25 Accordingly, the terms "holiday card" and "thank you notes" may not be construed to include advertisements.

Use of Candidates' Personal Funds

Advertisements That Could Have Been Paid For with Government Funds

Candidates may use their personal funds for advertising that could have been paid for with government funds. This is, in effect, a gift to the City. Since the expenditure limits set forth in the Act do not apply to use of monies appropriated by the government for expenditures by a person holding public office,26 they do not apply to candidates' expenditures of personal funds for advertisements for which governmental funds might have been used.

Campaign-Related Advertisements

Candidates may not use their personal funds, or funds contributed by others, for campaign-related advertising (advertising to further a candidate's nomination or election), except in compliance with the Act, including its rules concerning contribution and expenditure limits.27 Personal funds may be contributed to a campaign pursuant to the contribution limits and used for campaign-related expenditures, including advertising, up to the expenditure limits established by the Act.28

Contact Information Included in Advertisements

Campaign Office Contact Information in Advertisements that May be Paid for with Government Funds

Candidates may not place campaign office contact information in advertisements and other materials that are paid for with government funds, or that could have been paid for with government funds, including constituent services materials.29

If advertising materials which otherwise have a public purpose contain campaign office contact information or other information related to a campaign, they become campaign-related materials furthering a candidate's nomination or election, subject to regulation under the Act.30

City Office Contact Information in Campaign-Related Advertisements, Including Congratulatory, Seasonal, and Commemorative Ads

Campaign-related advertisements or materials are regulated by the Act. Candidates may not place City office contact information, or the City (or City office) crest, seal, or logo, on any campaign-related advertisement. Candidates who are elected officials may, however, use their City titles in advertisements.

To place City office contact information or any City logo on a campaign-related advertisement would create a situation in which members of the public might call City offices, encouraging City employees to respond to campaign-related inquiries while at work in violation of the Charter.31 The Charter prohibits a public servant from using his or her City position to help a political candidate or a political campaign.32

Furthermore, to include an elected official's City office contact information in an advertisement or on a campaign website transforms the ad from an expenditure furthering a campaign into an expenditure providing constituent services – a reminder to constituents of the name and contact information of the elected official. Advertisements related to constituent services may not be paid for with campaign funds.

Finally, including an elected official's City office contact information in an advertisement or on a campaign website runs contrary to the Campaign Finance Program's purpose of leveling the playing field between candidates who are elected officials and candidates who are not. Prospective voters might interpret such information as conferring special status on an incumbent candidate.

In sum, campaign-related advertisements, including congratulatory, seasonal, and commemorative ads, may include only a candidate's campaign office (and not City office) contact information.33

NEW YORK CITY CAMPAIGN FINANCE BOARD

1 The inquiry was dated October 17, 2007.  Mr. Vallone has filed a Filer Registration with the Board for the 2009 elections. 

2 City Council Resolution Prohibiting Use of City Funds for the Purchase of Certain Advertisements, Res. No. 1168-2007 (Nov. 15, 2007).

3 Advertisements, as discussed herein, include communications in all media, including electronic media, and specifically include websites.  See Advisory Opinion 2007-1 (Feb. 8, 2007) at n.3, 4 (concerning the meaning of the terms "mass communication" and "delivered").

4 Charter § 1136.1(2)(a).  

5 Charter § 1136.1(2)(b) ("the mass mailing prohibition").

6 Charter §§ 1136.1(2)(b), 1136.1(4); Advisory Opinion No. 2007-1 (Feb. 8, 2007).  In Advisory Opinion No. 2007-1, the Board found that the term "government resources" includes, but is not limited to, government-provided funds or resources such as personnel, e-mail lists, stamps, bulk rate mail permits, and equipment.

7 Charter § 1136.1(3).

8 See also, Citizens Union, Tax Dollars at "Work" – City Council Spending on AdvertisementsReport on New York City Council Advertising Dollars (Oct. 2007).

9 City Council Res. No. 1168-2007, Rule 2.65.

10 Where the City Conflicts of Interest Board or other controlling government body has determined that government resources may not be expended for an advertisement because the advertisement is for a non-City purpose, campaign funds may be used only if the expenditure is campaign-related. The particulars of this issue are outside the scope of this Advisory Opinion. For more guidance, see Advisory Opinion 2007-3 (March 7, 2007).

11 The term "candidate" includes "participating candidate," "limited participating candidate" and "non-participating candidate" as defined in the Admin. Code and Rules.  Admin. Code §§ 3-702(1), (13), (14); Rule 1-02; see also Advisory Opinion No. 2006-1 (Jun. 13, 2006) (interpreting "candidate for elective office" under Charter § 1136.1).  The term "committee" includes "principal committee" and "authorized committee" as defined in the Code and Rules.  Admin. Code §§ 3-702(2), (7); Rule 1-02.

12 Admin. Code §§ 3-702(8), 3-704(1), 3-710(2)(c); Rules 1-03(a), 1-08(g), 5-03(e); Advisory Opinion No. 2007-3 (March 7, 2007).

13 Admin. Code § 3-710(2)(c); Rule 5-03(e)(1).

14 City Council Res. No. 1168-2007, Rule 2.65(b)(i).

15 Charter § 1136.1(3).

16 Admin. Code §§ 3-704(1), 3-710(2)(c); Rules 1-03(a), 1-08(g), 5-03(e).

17 Advisory Opinion No. 2007-3.

18 Admin. Code § 3-704(1); Rules 1-02, 1-03(a)(2), 1-08(g)(2).

19 Constituent services include, but are not limited to, communications necessary to safeguard public health and safety, standard communications in response to inquiries or requests, and ordinary communications between public servants and members of the public or between elected officials and their constituents. See Charter § 1136.1(3).

20 Admin. Code §§ 3-704(1), 3-710(2)(c); Rules 1-03(a), 1-08(g), 5-03(e).

21Id.

22Advisory Opinion No. 2007-3 stated in part that the Board would closely examine the use by a candidate who is also an elected official of campaign funds for "community outreach activities" and "constituent services" to ensure that the funds were used only for campaign-related purposes.

23 Admin. Code § 3-706; Rule 1-08.

24 Admin. Code § 3-710(2)(c); Rule 5-03(e)(2)(ii).

25 Rule 5-03(e)(2)(ii).

26See Advisory Opinion No. 1989-1 (Jan. 3, 1989).

27 Admin. Code §§ 3-702(8), 3-710(2)(c); Rules 1-03(a), 1-04(g), 1-08, 5-03(e); Advisory Opinion No. 2007-3.

28 Admin. Code §§ 3-703(1)(f), 3-703(1)(h), 3-706; Rules 1-04, 1-08. Participating candidates may contribute up to three times the contribution limit to their own campaigns. Admin. Code §§ 3-703(1)(f), 3-703(1)(h).

29 Campaign office contact information may not be placed on materials paid for with government funds, as the campaign information does not serve a City purpose. But see Advisory Opinion No. 2000-4 (Sep. 14, 2000) (superseded in part by amendments to Charter § 1136.1 contained in Local Law No. 58 of 2004) in which the Board concluded that "the question whether government resources have been illegally or improperly used for a political campaign... will be interpreted and enforced by other agencies." The Conflicts of Interest Board determines whether there has been a misuse of City resources.

30 Admin. Code §§ 3-702(8), 3-704(1), 3-710(2)(c); Rules 1-03(a), 1-04, 1-08, 5-03(e); Advisory Opinion No. 2007-3.

31 Charter §§ 2604(b)(9), 2604(b)(11) (which the Conflicts of Interest Board interprets and enforces).

32Id.

33 As with any advisory opinion, to the extent that this Advisory Opinion reflects any new interpretation of the Act and Rules, it is applicable to candidates only from the date of this Advisory Opinion.