OPINION NUMBER - 146
ADOPTED - 1994/07/08
SUBJECT - Campaign Financing/Use of Campaign Funds
REQUESTED BY: The Honorable Eric Will, State Senator, District #8.
QUESTION: May campaign funds be used to hire someone to assist with preparation and cleaning for a campaign function?
A state senator occasionally entertains campaign workers and constituents at his home. Those attending these gatherings are approximately thirty in number. The state senator wishes to know if campaign funds may be used to hire someone to assist with preparation and cleaning for the event.
Section 49-1419 generally defines the term expenditure as "a payment, donation, loan, pledge, or promise of payment of money or anything of ascertainable monetary value . . . in assistance of, or opposition to, the nomination or election of a candidate . . ." Section 49-1446.01 generally provides that a committee (including a candidate committee) may transfer funds to make an expenditure as defined in Section 49-1419. A committee may also transfer funds for certain other purposes set forth in Section 49-1446.01. Section 49-1446.01(1)(b) permits the transfer of committee funds for "social events primarily for the benefit of campaign workers and volunteers or constituents."
Section 49-1446.02 generally provides that committees may not expend campaign funds for certain enumerated purposes. Subsection 5 prohibits the use of campaign funds for personal services except those services which are provided to the campaign.
Having established the general proposition that campaign funds may be used for social events for campaign workers and constituents, it is still necessary to look at individual expenditures associated with such an event and analyze those expenditures in a manner consistent with past practices.
In past Advisory Opinions the Commission has stated that "the intent behind Sections 49-1446.01 to 49-1446.03 was to restrict the use of campaign funds to activities reasonably related to campaigning and to prohibit their conversion to other uses." See Advisory Opinions #60 and #88. In Advisory Opinion #88 the Commission noted the "clear intent behind Section 49-1446.02 of the Accountability Act is to prohibit the personal use of campaign funds."
In order to determine what is "reasonably related to campaigning" the Commission has adopted the "but for" test.
Consider these examples of the application of the "but for" test:
A. But for his candidacy, he would not have purchased the yard signs. The statement is true since there is no purpose in purchasing yard signs unless one is a candidate.
B. But for his candidacy, he would not have had the dental work done. The statement is not true since people normally have dental work done as a matter of personal health rather than as a campaign matter. Even if a candidate attempts to state the dental work is being done so that he has better looking teeth and wishes to enhance his appearance for the purpose of furthering his candidacy, dental work is still primarily personal in nature and the benefit is still primarily personal.
C. But for his candidacy, he would not have attended the seminar regarding legislation required in order to be eligible for federal matching funds. The statement is not true. The legislator is attending a seminar so that he can better carry out his legislative duties. While being a good officeholder may enhance one's acceptability as a candidate, the seminar is primarily related to the holding of public office and not to the candidacy.
There are expenditures associated with social events which clearly would not occur "but for" the social event. These would include the cost of food and beverages, the hiring of individuals to assist in preparing and serving food and beverages, the cost of decorations, music, rental of tables, rental of chairs, etc. On the other hand, a social event is not an excuse to make expenditures which are primarily personal in nature. For example, one could not use campaign funds to pay for landscaping at one's personal residence so that a campaign garden party could be held.
Using campaign funds to hire someone to clean up after a permissible campaign event at a senator's home is reasonable. The goal is to place the home in its pre-party condition. Using campaign funds to clean up an individual's home in advance of a campaign event is not as clear a matter. Conceivably, a home needs to be cleaned occasionally regardless of whether campaign events are held there. A question arises as to whether a pre-event cleanup is more personal in nature than campaign related. It is our position that the circumstances surrounding an event determine whether or not a pre-event cleanup is campaign related or personal.
Having an individual come to the home on a regular basis for the purpose of cleaning when there are no other expenditures for a campaign event at the home would lead the Commission to conclude that the expenditure is personal in nature and may not be paid for with campaign funds. However, using campaign funds to pay someone to occasionally clean the house, when there are other expenditures for campaign events at the home, would lead the Commission to conclude on the face of the matter that the payment is a legitimate campaign expense. These are examples of the types of circumstances which the Commission would consider and are not meant to be an expression of the only circumstances which the Commission would consider. Other circumstances could include matters such as which rooms in the home were cleaned. If the cleaning included parts of the house which are not meant to be accessible to guests, this would be another circumstance which would tend to indicate that the expense was personal in nature rather than campaign related.
A state senator may use campaign funds to hire a person to assist with the preparation of a social event for campaign workers and constituents to be held at the senator's home. A state senator may expend campaign funds to hire an individual to clean his home following a social event for campaign workers and constituents. Finally, a state senator may expend campaign funds to hire an individual to assist with the cleaning of his home in advance of a social event for campaign workers and constituents if the surrounding circumstances indicate that the cleaning is truly connected with the social event and not primarily personal in nature.