OPINION NUMBER - 085

ADOPTED - 1986/02/07

SUBJECT - Campaign Expenditures

REQUESTED BY: Committee to Elect William E. Nichol

QUESTION: May campaign funds be used to lease an automobile for the duration of a campaign for election to office.

CONCLUSION

Yes, under circumstances outlined in the analysis.

ANALYSIS

You state that it is your intention to lease an automobile for the duration of your campaign for lieutenant governor. You state that you do not have adequate personal cars for the amount of travel required in such a campaign. You indicate an intention to use the vehicle for personal matters as well as campaign activities. You further indicate that you will be attending to the duties of your current office as state senator from about January 8th to the middle of April and you intend to drive to various locations until May 13th. You intend to lease a small van to haul campaign materials and to transport two or three people with you.

We have addressed the issue of the use of campaign funds in three prior opinions. In all opinions we cited the definition of expenditures contained in Neb. Rev. Stat. 49-1419 Reissue 1984; that is: . . .{A} payment, donation, loan, pledge, or promise for the payment of money or anything of ascertainable monetary value for goods, materials, services or facilities in assistance of, or in opposition to the nomination or election of a candidate, or the qualification, passage or defeat of a ballot question.

We have further referred to those provisions of the Nebraska Political Accountability and Disclosure Act contained in Neb. Rev. Stat. Section 49-1446.01 and Section 49-1446.02 Reissue 1984.

Section 49-1446.01 generally deals with the expenditure of funds after an election. It sets forth several categories of approved expenditures.

Section 49-1446.02 is a list of prohibitions which outline those matters for which campaign funds cannot be spent. We particularly point out to you those provisions of 49-1446.02(2). That section in part provides:

Notwithstanding any other provisions of the Nebraska Political Accountability and Disclosure Act, no committee shall expend or transfer funds for the purchase or payment of: . . .(2) installment payments for an automobile owned by the candidate; . . .

It is our understanding that this vehicle will not be owned by you. Rather, we understand that you intend to lease the vehicle.

It is apparent that Section 49-1446.02 is generally intended to exclude the expenditure of campaign funds for items which can be characterized as expenses normally encountered in daily life such as clothing, medical expenses, payments on residences, personal debts, and personal services not connected to a campaign. The prohibitions are stated so that expenditures made for the purpose of advancing a campaign, except as prohibited, are appropriate.

It would be difficult to come up with a comprehensive list of approved expenditures that may arise during a campaign. Human ingenuity is generally sufficient to come up with ideas which cannot be foreseen in the drafting process and thus general language is used in connection with attempting to control behavior. Section 49-1419 is exactly that sort of general language. What may be of assistance to your campaign will, of course, vary. You believe that it would be of assistance for you to have an automobile available for use in your campaign. We do not believe that your belief is unfounded. Certainly, one who is engaged in a state wide campaign will on occasion need transportation to make appearances around the state.

Any number of ways can be devised to see to this need. One may hire transportation to particular location; reimburse expenses incurred by someone providing such transportation; or reimburse a candidate for such costs. Thus, faced with the simple question whether or not one may use campaign funds to secure transportation in a campaign, the answer, obviously, is yes.

The problem we perceive in this situation has to do with your use of such vehicle for non-campaign purposes. To the extent you may be using the vehicle for personal use such as trips to the grocery store, driving to and from work or trips for noncampaign activities payment from campaign funds would be prohibited.

We perceive your position to be that you intend to treat this as your personal vehicle and have it as your primary vehicle during the entire period from the date of the lease until the campaign has been concluded. To that extent we believe that payments on a lease are within the prohibition of Section 49-1446.02(2).

Texas, while under a different statutory scheme has said:

However, when the automobile is also used for a personal use, the officer must be able to differentiate between political and personal use and ensure that contributions are being expended only for the apportioned political use. (See State Ethics Advisory Opinion 1984-3, Feb. 24,1984)

We believe the above is a sound approach. You must keep detailed records. We propose the following alternative methods from which you may choose.

1. You may pay the cost of that portion of use attributable to your campaign from campaign funds supported by detailed records, the remainder must be paid from your personal funds.

2. When the vehicle is used for campaign purposes you may pay a standard mileage rate of 20 1/2 per mile for the first 15,000 miles and 11 per mile for each additional mile above that use from campaign funds, all other costs must be paid from your own funds. We should point out here that the standard mileage rate is not allowed by the IRS on a leased vehicle. We, however, do not believe that restriction should be applicable for the purpose of allocating the cost to campaign funds.

3. You may pay for actual campaign related expenses including the cost of gas, oil, repairs, insurance, depreciation, interest, taxes, licenses, garage rent, parking fees, and tolls from campaign funds. You may allocate your expenses by applying the percentage of total miles to campaign miles to your lease payments.

Alternatives 2 X 3 are derived from IRS guidelines, we would refer you to publications 463 and 572 which explain the provisions of the tax code relating to automobile deductions.

Regardless of the method of record keeping or allocation you choose, you may pay the cost of that portion of use attributable to your campaign from campaign funds; the remaining part must be paid from your personal funds. While these alternatives do not answer all the questions, we find they are reasonable methods of allocating costs.

We do not have sufficient information now to advise you concerning the specific terms of the lease. However, there would appear to be fewer potential problems regarding the use of campaign funds where the lease was owned by your committee rather than yourself. We believe that if the vehicle were purchased at the end of the lease period by your committee, and then sold, either to yourself or another, the fair market value of the vehicle must be returned to the committee. Should you have further questions regarding the specifics of the lease, please contact the Commission.