DISCUSSION
This
precise question whether
an elected judge may use
unspent campaign
contributions to pay
attorney fees incurred
in the defense of an
ethics complaint against
the judge is a matter of
first impression in
Nevada and, apparently,
in other states. Because
of its significance and
importance, it was
considered by all of the
judicial and attorney
members of the Standing
Committee, with the
exception of one judge
and one attorney member,
each of whom were unable
to participate. This
question arises at a
time when what once
seemed to be accepted
differences between the
campaign activities of
judicial candidates and
candidates seeking
political office have
been blurred by judicial
rulings involving First
Amendment issues. It
also arises at a time
when the manner in which
funds are raised for
judicial campaigns is
under scrutiny. The
answer to the question
has the potential to
further complicate these
issues. Nevertheless, it
is the Committee’s
obligation to consider
the relevant provisions
of the Code, and render
an advisory opinion
based upon their express
language.
Although
Canon 5C(2) allows a
judicial candidate to
solicit and accept
campaign contributions,
it expressly prohibits
the use of such
contributions "for the
private benefit of the
candidate or others."
That prohibition
provides limited help
here, because it is
Canon 5C(3) which
controls the disposition
of campaign
contributions that were
not spent or committed
for expenditure as a
result of a judicial
campaign. That Canon
authorizes the
disposition of such
unspent campaign funds
in any combination as
provided in subsections
(a) through (d) of the
Canon. It also provides
that "any other
disposition of the money
is prohibited."
Therefore, the use of
unspent campaign funds
to pay attorney fees
incurred in the defense
of an ethics complaint
must be authorized
within one or more of
the alternatives in
subsections (a) through
(d), or it is
prohibited. Only one of
the four alternatives is
relevant to the
question. In applicable
part, Canon 5C(3)(c)
provides that a judge
may "use the money...for
the payment of other
expenses related
to the judge’s public
office or the judge’s
campaigns." [Emphasis
added].
From
December 1991 through
1999, Canon 5C(3)(c)
provided that a
candidate may "use the
money for the payment of
expenses directly
related to the
candidate’s public
office other than
campaigning, including
attendance at public,
civic, and charitable
functions." Although the
present language in
Canon 5C(3)(c) appears
somewhat broader than
that language, the
changes were not
significant to the
conclusions reached in
this Advisory Opinion.
The
Commentary to Canon
5C(3) "encourages"
candidates "to be
responsive to the
desires of the
contributors concerning
the disposition of such
funds with the available
5C(3) options, to the
extent such desires are
known to the candidate
or the candidate’s
campaign committees."
The Committee strongly
recommends that that
"encouragement" be
followed here. The
Committee is of the
general view that
contributors do not
expect that their
contributions will be
used to pay attorney
fees incurred in
defending an ethics
complaint, particularly
one which is later found
to be valid and to
involve a breach of the
Code of Judicial
Conduct. However, in
spite of that
"encouragement," the
Commentary states that
"it is entirely ethical
to use or dispose of
such funds in accordance
with the provisions of
Section 5C(3)."
The Commentary to
Canon 5C(3) also
states:
The
1999 amendments to
Section 5C(3)
conform the Code
more closely to
N.R.S. 294A.160.
Because a judge's
position in society
is unique compared
to other office
holders the Code is
more restrictive
than the statutes
governing candidates
for other offices.
A
comparison of the
relevant provisions of
N.R.S. 294A.160 to Canon
5C(3)(a) through (d)
provides an
understanding of what is
meant in connection with
a judge’s unique
position, and how the
Code is more restrictive
than the provisions of
that statute. The Code
is more restrictive
because it does not
permit the contribution
of such funds to the
campaigns of other
candidates for public
office, or for the
payment of debts related
to other candidate’s
campaigns, or to a
political party, or to a
person or group of
persons advocating the
passage or defeat of a
question or group of
questions on the ballot,
as does N.R.S.
294A.160(2)(c). The
omission of those
provisions is also
indicative that judges
are to be independent,
impartial and
substantially removed
from many political
activities.
However,
the Code uses language
in subsection (c) which
is nearly identical to
the language in N.R.S.
294A.160(2)(b). The
relevant part of that
portion of the statute
provides that the
official may "use the
money...for the payment
of other expenses
related to public office
or his campaign...."
Because that provision
in N.R.S. 294A.160(2)(b)
is nearly identical to
the relevant provision
in the Code, and because
the Code was revised in
1999 to "conform more
closely to N.R.S.
294A.160," the Committee
assumed that the Nevada
Supreme Court intended
the Code to be
interpreted and applied
in a manner similar, if
not identical, to the
manner in which N.R.S.
294A.160(2)(b) is
applied. Therefore, the
Committee examined a
Nevada Attorney General
Opinion interpreting
that statute.
Nevada
Attorney General Opinion
No. 2002-23 considered
whether the personal use
of campaign funds, which
is prohibited by N.R.S.
294.160(1), includes the
payment of attorney fees
associated with
defending a public
officer against an
ethics charge. The
question was apparently
posed in that fashion
because N.R.S.
294A.160(1), similar to
Canon 5C(2), prohibits
the personal use of
campaign funds. The
Nevada Attorney General
first considered the
scope of the phrase
"personal use of
campaign funds" as used
in N.R.S. 294A.160, and
determined that it
provided "limited
assistance in
determining what the
Legislature intended
would constitute the
personal use of campaign
funds." The Attorney
General also undertook
an extensive review of
the issue at the federal
level and among the
states. As a result of
that extensive review,
the Attorney General
concluded that the
Nevada Legislature
intended to enact a
standard which
prohibited the use of
campaign funds under the
so-called federal
"irrespective test."
Under that test, if the
use of funds fulfills a
commitment, obligation
or expense that would
exist "irrespective" of
a person’s duties as an
office holder, the use
is a "personal use" of
the funds.
The
Attorney General next
considered whether "the
use of campaign funds to
pay attorney fees for
defending a public
officer against an
ethics charge [is]
considered ‘personal
use’ or ‘the payment of
other expenses related
to public office or his
campaign’?" In answering
that question, the
Attorney General again
considered federal
advisory opinions and
attorney general
opinions from other
states. As a result of
that survey, the
Attorney General
concluded that "the
federal government and
most states are likely
to find on a
case-by-case basis,
campaign funds used to
pay attorney fees for
defending against an
ethics charge are
expenses related to the
public office or
campaign."
In the
end, however, the
Attorney General,
applying the
"irrespective test"
concluded: "it is the
opinion of this office
that the use of campaign
funds to pay attorney
fees to defend against
ethics violations would
not constitute the
personal use of campaign
funds in violation of
N.R.S. 294A.160."
Presumably, implicit in
that conclusion is also
the conclusion that the
use of campaign funds to
pay attorney fees to
defend against ethics
violations constitutes
"payment of other
expenses related to
public office or his
campaign."
In
connection with this
advisory opinion, the
Committee also
considered two cases,
one from Ohio, and one
from Colorado. In
State v. Ferguson,
709 N.E. 2d 887 (Ohio
App. 1998), the payment
of attorney fees with
campaign funds in
connection with a
dismissed indictment was
found allowable under
Ohio law. The relevant
statute allowed campaign
funds to be used for
"legitimate and
verifiable, ordinary,
and necessary prior
expenses incurred...in
connection with duties
as the holder of a
public office...." The
Ohio Election
Commission, in prior
advisory opinions, had
determined that an
expenditure for legal
fees to defend against
criminal charges was an
inappropriate use of
such funds. The Ohio
Election Commission
concluded that an
expense must be related,
according to recognized
principles or accepted
standards, to a duty of
the public office. It
concluded that the
office holder’s duties
do not include defending
himself against charges
of criminal conduct. On
the other hand, the Ohio
Election Commission had
determined that the
statute allowed the
payment of attorney fees
with campaign funds for
representation against
charges brought before
the Ohio Election
Commission itself, and
in connection with
criminal charges which
had been dropped before
trial.
In
Williams v. Teck,
113 P.3d 1255 (Colo.
App. 2005), the Colorado
court construed a
Colorado statute that
allowed unexpended
campaign contributions
to be used to pay
expenses that are
directly related to such
person’s official duties
as an elected official.
In that case, the issue
was whether it was
appropriate for a
senator to use
unexpended campaign
funds to pay legal fees
associated with the
defense of a complaint
before the Colorado
Secretary of State
alleging violations of
the Colorado Fair
Campaign Practices Act.
In that case, Colorado
court said:
The
activities involved
in complying with
[the Fair Campaign
Practices Act] are
particularly public
activities brought
about by the legal
requirement that
candidates for
public office act in
accordance with
these laws.
The filing of a
complaint against a
candidate or
committee is the
primary mechanism to
enforce the campaign
finance and
disclosure laws.
[Citation] A
candidate and a
candidate committee
that are charged
with violating these
laws may not be able
to establish their
compliance with
legal requirements
without
participating in a
hearing of the
complaint.
* * *
Here,
the legal fees
properly may be
characterized as
directly related to
Teck's official
duties. Teck's
duties include
filing periodic
reports with the
Secretary of State,
and the fees were
reasonably necessary
to demonstrate that
Teck and his
committee had
properly performed
this duty.
113
P.3d at 1258-59.
The
precise language of
Canon 5C(3)(c) allows
the use of unexpended
campaign funds for the
payment of other
expenses "related
to the judge’s public
office or the judge’s
campaign." Here, the
Advisory Committee
considered the plain and
ordinary meaning of
"related." The other
expenses must be
"connected" to or
"associated" with the
judge’s office or the
judge’s campaigns.
Although
the "irrespective test"
used by the Nevada
Attorney General in
Opinion No. 2002-23 is
helpful in identifying
prohibited "personal
use" of campaign funds,
the Committee determined
that it was not helpful
in determining whether
the use of such funds
was "related to the
judge’s public office or
the judge’s campaigns."
In that context, the
"irrespective test"
sweeps too broadly. It
would allow for the use
of such excess campaign
funds to pay legal
expenses associated with
all ethics complaints
simply because persons
who are not judges are
not subject to such
judicial ethics
complaints and,
therefore, the expense
could not exist
"irrespective" of their
position as a judicial
office holder.
Although
the precise words
construed in Ferguson
and Teck are
arguably more
restrictive than those
in Canon 5C(3)(c), it is
the Committee’s view
that the expenses must
be "related" or
connected to the judge’s
campaign, and for such
expenses to be "related
to the judge’s public
office," they must be
connected to the
performance of judicial
duties. For that
connection to be
established, there must
be some nexus between
the alleged ethics
violation and either the
judge’s official duties
or the judge’s election
campaign. Indeed, some
members of the Committee
were of the view that
there could never be
such a connection unless
the ethics violation was
ultimately determined to
be unfounded. To an
extent, there is a
logical inconsistency in
concluding that a
successful defense of an
ethics complaint is
"related" to the judge’s
public office, while an
unsuccessful defense is
not. Although a majority
of the Committee could
not read that limitation
into the words of Canon
5C(3)(c) the entire
Committee is very aware
of, and concerned about,
the perception which is
created by such use of
unspent campaign funds
on the public’s
confidence in the
integrity of the
judiciary. However, if
such a limitation is to
be imposed, it must come
from an amendment to
Canon 5C(3)(c), and not
from this Committee.
