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2010-3: Application of The Doing Business Contribution Limits to a Candidate Who Has Not Yet Declared an Office

Thursday, September 16, 2010

Re: New York City Administrative Code ("Admin. Code") §§ 3-702(16)-(20), 3-703(1)(c)(i), (1-a), (1-b); New York City Campaign Finance Board Rules ("Rules") 1-04(a), (b), (c); 1-11; 2-01; 2-11(b)(4); 3-03(c)(1); Op. No. 2010-3.

The New York City Campaign Finance Board (the "Board") has received an inquiry regarding the application of the doing business contribution limits to a candidate who, at the time a contribution is received, has not yet declared an office.  Because this inquiry raises matters of general public interest, the Board has determined to issue an advisory opinion.   

Relevant Law 

A participating candidate may not accept contributions above a set limit from a contributor that has "business dealings with the city."1 These limits are:  $250 for a candidate for City Council, $320 for a candidate for borough president, and $400 for a candidate for mayor, comptroller, or public advocate.2  See Admin. Code § 3-703(1-a), (1-b).  As with all contributions, candidates must report contributions from contributors having business dealings with the city to the Board in the next disclosure statement after they are received.  See Admin. Code § 3-703(1-b); Rule 1-04.  Following the filing of each disclosure statement, the Board must notify the campaign of any contributions over the applicable doing business contribution limit within twenty days, and the campaign must refund the amount in excess of that limit within twenty days. 3  Id.  If the campaign fails to return the overage within twenty days, the amount may be withheld from public fund payments, and the campaign may be subject to a penalty.  Id.  If the Board fails to notify a candidate that a contribution is in excess of the limits within the deadlines, the contribution is deemed to be compliant.4  Id.  Therefore, if a candidate who has not yet declared an office5 reports a doing business contribution over $250, the Board's policy is to notify the candidate that he or she may be in violation of the lowest doing business contribution limit, i.e., the $250 limit for City Council candidates.  See Admin. Code § 3-703(1-a), (1-b).      

Requirements for Undeclared Candidates

Undeclared candidates are advised to refund any doing business contributions over $250 (the lowest doing business contribution limit), in order to avoid the need to refund the overage (and risk non-compliance if the refund is not timely), in the event they choose not to run for an office with a higher doing business contribution limit.  However, a candidate who is undeclared will not be penalized for accepting a doing business contribution in the amount permitted for a city-wide office, which is $400.  Once the candidate declares that he/she is running for a City Council position ($250 limit) or a borough president position ($320 limit), however, the candidate must return the excess portion ($150 or $80 respectively) within twenty days of the date of the declaration of office.6  If a candidate returns the appropriate overage within twenty days of the declaration, the Board will not withhold the overage amount from the candidate's public fund payments or assess penalties.7  However, if a candidate fails to return the overage within twenty days of the date of the declaration of office, the Board may withhold the overage amount from any public funds payment and may assess penalties.8

NEW YORK CITY CAMPAIGN FINANCE BOARD

1 See Admin. Code § 3-702(18). 

2 These contributions are also not eligible to be matched with public funds.  See Admin. Code § 3-702(3)(h).

3 In the case of a contribution reported during the six weeks preceding the candidate's next covered election, Board staff must provide notification within three business days, although the candidate still has twenty days to refund the excess.  See Admin. Code § 3-703(1-b); Rule 1-04(c)(1). 

4 The contributions are still not eligible to be matched.   See Admin. Code § 3-703(1-b).

5 Though many candidates declare which office they are running for in the Filer Registration form, some candidates do not declare until the certification deadline.  See Rules 1-11 and 2-01.  The certification deadline for the 2013 elections is June 10, 2013.  See Admin. Code § 3-703(1)(c)(i). 

6 A candidate must declare which office he/she is running for by filing a Filer Registration form and/or a Certification form with the Board, or by filing an amendment to either of these two forms.  See Rules 1-11 and 2-01.

7 Pursuant to Admin. Code § 3-703(1-b), the Board will send undeclared candidates a notification letter within twenty days of the reporting of the transaction using the lowest limit; it will not send out an additional notification letter when a candidate declares the office for which he/she will be running.  See also Rule 1-04(c)(1).  

8 Candidates are advised to declare an office as early as possible as this provides candidates with an opportunity to receive information regarding a candidate's threshold requirement and the application of contribution limits (both regular and doing business), and expenditure limits.