Re: New York City Administrative Code ("Admin. Code") §§ 3-703(1)(d), (e), (f), (g), (14), 3-705, 3-706, 3-708(7)(a), 3-708(11), 3-710(2)(c), 3-718, 3-719; Local Law No. 51 (Nov. 3, 2008); New York City Campaign Finance Board Rule Nos. 1-04(f), 1-07, 1-08(c), (o), 3-03(c)(2), 4-01; Advisory Opinion Nos. 1997-6 (June 24, 1997), 2008-7 (Nov. 3, 2008); Op. No. 2009-2.
The New York City Campaign Finance Board (the "Board") has received an inquiry from City Council Member Peter F. Vallone, Jr.,1 regarding Option 1-A as described in Advisory Opinion No. 2008-7 ("AO 2008-7") and "Term Limits Extension and the Campaign Finance Board: Candidate Guidance Document on Advisory Opinion No. 2008-7."2 Because this inquiry concerning AO 2008-73 raises matters of general public interest, and in order that all candidates receive the same guidance, the Board has determined to issue an advisory opinion pursuant to Admin. Code § 3-708(7)(a).
Due to the enactment of Local Law No. 51 of 2008, which extended term limits for current elected officials from two terms to three, the Board issued AO 2008-7 to address the impact of this legislation on candidates—both incumbents and challengers. AO 2008-7 provides an option (Option 1-A) that allows candidates with reported activity who now will seek re-election to their incumbent offices in 2009, instead of the higher offices they anticipated seeking in 2009, to "restart" the 2009 election by "freezing" their current committee until the 2013 election cycle, and opening up a new committee for the 2009 election. Candidates who choose this option may not use the funds in the "frozen" committee during the 2009 election cycle.
Mr. Vallone seeks guidance as to whether a candidate, after choosing Option 1-A, can later access the funds in this "frozen" committee if s/he later decides to run for higher office instead of his/her incumbent seat because the current incumbent – after the January 15, 2009 deadline - decides not to seek reelection. This inquiry is appropriate, and indeed AO 2008-7 invited candidates to seek such guidance. However, the request involves an event that, at this point, is highly speculative and involves numerous unknown variables. The Board does not believe it is appropriate to provide detailed guidance on this hypothetical event at this time. In any event, it is possible that the Campaign Finance Act and Board Rules would require the Board to permit candidates who no longer choose to run for their incumbent seat to "unfreeze" these accounts. How that will be accomplished and the consequences for the financial activity of both the "frozen" and the new committee will depend on the timing and circumstances of a more concrete request. In the event such a situation develops, the Board would welcome a further request for guidance on the matter.
If a candidate believes that this advice is insufficient, s/he should consider choosing Option 1-B, described in AO 2008-7, as this option does not require "freezing" one's initial higher office committee and allows for the current committee to be used for the 2009 election cycle.
In sum, the Board will not provide detailed guidance regarding whether a candidate in a hypothetical situation, after choosing Option 1-A, can access the funds in this "frozen" committee if s/he decides to run for higher office instead of his/her incumbent seat.4
2 The Board released a plain language document on November 13, 2008 that explains AO 2008-7 and gives detailed guidance to candidates on how to implement the advice in AO 2008-7 for their campaigns. This guidance document is available on the Board's website at www.nyccfb.info.
3 AO 2008-7 was issued by the Board on November 3, 2008 and is available on the Board's website at www.nyccfb.info.