Re: Charter § 81(e); Administrative Code §§ 3-702(3), 3-703(1)(c), (f), (i), (j), (1-a), (1-b), (2)(a)(iv); 3-705(2)(a), (b); 3-706(1)(a), (2); 3-710(2)(c); 3-710.5; 3-711; 3-719(2)(b); 3-801; Campaign Finance Board Rules 1-04(f); 1-05(h); 1-07(a); 1-08(c)(1), (d)(1); 5-03(e)(2); 7-03(c); 11-01 – 11-05; Advisory Opinion Nos. 1991-2, 2000-6, 2007-2, 2008-3, 2009-1; Op. No. 2009-3.
Bronx Borough President Adolfo Carrion, Jr. resigned on March 1, 2009.1 As a result, a special election will be held to fill the vacancy. Under the City Charter, when a 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 New York City Charter § 81(e), et seq. On March 2, 2009, the Mayor proclaimed that a special election to fill this vacancy will be held on April 21, 2009. This Opinion outlines the general requirements of the New York City Campaign Finance Act (the "Act") and the requirements for participation in the New York City Campaign Finance Program (the "Program") for this anticipated special election.2
Deadline to Join the Program
The New York City Campaign Finance Act provides that "the deadline for filing a certification for a special election to fill a vacancy shall be on the seventh day after the proclamation of such election." The deadline to file the Certification was March 9, 2009.3 New York City Administrative Code ("Administrative Code") § 3-703(1)(c). Late Certifications were not accepted. Following the special election, there will be a subsequent primary4 and general election in September and November 2009. See NYC Charter § 81(e)(5). The deadline for filing a Certification for the 2009 primary and general elections will be June 10, 2009. Administrative Code § 3-703(1)(c).
Candidates who already have been raising funds for the 2009 elections may use their existing committees and bank accounts in the special election provided they amend their registration with the Board of Elections to reflect the change in election. See Advisory Opinion Nos. 2007-2 (March 6, 2007), 2008-3 (April 10, 2008), 2009-1 (January 8, 2009). However, all candidates wishing to participate in the Program for the special election were required to file a Certification with the Board specifically for the special election. Candidates who did not wish to participate in the Program were not required to file a Certification, but were required to file a new Filer Registration with the Board.5 All candidates were required to attend compliance training designed specifically for this special election. Board Rule 1-06(c).
Contribution Limit, Expenditure Limit, and Maximum Public Funds Payment
The following limits apply to candidates in the special election.
- Contribution limit6: $1,925 all candidates
- Maximum matchable contribution7: $87 Program participants only
- "Doing Business" contribution limit8: $160 all candidates
- Expenditure limit9: $1,386,000 Program participants only
- Public funds maximum10: $762,300 Program participants only
Public Funds Payments
To be eligible for public matching funds, participants in the special election must meet the same threshold eligibility requirements as participants in a primary or general election. See Administrative Code §§ 3-703(1)(j), (2)(a)(iii). See also Advisory Opinion Nos. 1991-2 (April 9, 1991), 2008-3, 2009-1. Only valid matchable contributions11 are eligible to be counted toward the threshold. See Administrative Code § 3-705(2), Board Rule 3-04. Under the Act, however, the definition of "matchable contribution" for the special election is different from the definition of "matchable contribution" for a regularly scheduled election. For the special election, only contributions of up to $87 (approximately one-half of the amount of a matchable contribution in a regularly scheduled election) will be matchable and count toward threshold. SeeAdministrative Code §§ 3-702(3), 3-705(2)(a). The threshold for eligibility for public funding for candidates running for Bronx Borough President is the receipt of at least $26,653 in valid matchable contributions and at least one hundred matchable contributions of $10 or more from residents of the Bronx. Administrative Code § 3-703(2)(a)(iii). After meeting the threshold and other eligibility requirements in the special election, the first $87 of a contribution will be matched at a rate of $6-to-$1 up to $522 in public funds per contributor. Administrative Code § 3-705(2)(a). Participants who owe repayments of public funds from an earlier election, or who have significant unresolved compliance issues, will not be eligible to receive public funds for the special election, and were notified by the Board accordingly. See Advisory Opinion Nos. 2008-3, 2009-1; Administrative Code §3-703(1)(n).
Previous Financial Transactions12
For candidates running in the special election, disclosure statements filed with the Board after the candidate's most recent election13 will be considered to be for the special election, as provided in Board 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 2009 primary and general elections.14
According to Board Rules 1-04(f) and 1-08(c)(i), contributions and expenditures are presumed to be accepted or made for the first election in which the participant is a candidate following the day that it is received. Thus, all contributions received and expenditures made prior to the special election are presumed to be for that election. Because some contributions will have been accepted with the reasonable belief that they were to be used for the 2009 primary and general elections, the Board will not find a violation for any contribution over the special election limit that meets these criteria:
- it was received on or before the date the special election was first reasonably anticipated,15
- it does not exceed the contribution limit in effect for the 2009 election, and
- the excess portion of the contribution is refunded and the refund transaction is included in the first disclosure statement due after the Mayor's proclamation.
Candidates, whether or not participating in the Program, however, must abide by the applicable contribution limit for the special election. Therefore, any contribution accepted after March 1, 2009, which exceeds the contribution limit for the special election will be considered a violation of the Campaign Finance Act, and may be subject to financial penalty. See Administrative Code §§ 3-710.5, 3-711, Advisory Opinion Nos. 2008-3, 2009-1.
Transition and Inaugural Activities
The winner of the special election, whether a Program participant or 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; Board Rules 11-01 – 11-05.
NEW YORK CITY CAMPAIGN FINANCE BOARD
2 This advisory opinion is being issued at a later date in the election cycle than previous advisory opinions for special elections because the mayor's proclamation was issued seventeen days before the Board's next scheduled meeting date. Candidates for this special election already have been advised of the requirements set forth in this advisory opinion which are consistent with past advisory opinions.
9 See Administrative Code § 3-706(1)(a). The separate $129,000 expenditure limit pursuant to Administrative Code § 3-706(2) for the three calendar years preceding the year of the election applies only to regularly scheduled elections and is not available for the special election. See also Advisory Opinion Nos. 2007-2 (March 6, 2007), 2008-3, 2009-1.
12 The Board 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 Board Rule 1-04(f), are ultimately used for an intervening special election to fill a vacancy in an office covered by the Program.
15 The Board finds that the special election was first reasonably anticipated on December 13, 2008 (Haberman, Bronx Pol Adolfo Carrion will head Urban Policy, New York Post, December 13, 2008). See Advisory Opinion Nos. 2008-3, 2009-1.