On appeal from the Election Law Enforcement Commission.
The opinion of the court was delivered by: Reisner, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Reisner, Sapp-Peterson and Alvarez.
Former New Jersey State Senator Wayne Bryant (Senator Bryant) appeals from an advisory opinion of the Election Law Enforcement Commission (ELEC) that he cannot use campaign funds from his single candidate committee to pay legal expenses incurred in defending himself against federal criminal charges.*fn1 We affirm.
Senator Bryant's inquiry arose in the following context. In March 2007, he was indicted on federal charges alleging, among other things, that he obtained essentially "no show" jobs at the University of Medicine and Dentistry and Rutgers Law School-Camden, in exchange for using his official position to obtain public funding for those institutions. He was also accused of increasing his public pension by obtaining a position as counsel to a local board of social services but failing to personally perform the required legal work. He did not run for re-election and his last term as Senator ended in January 2008.
On December 21, 2007, Senator Bryant's counsel filed a request with ELEC for an advisory opinion as to whether campaign funds could be used to pay for his legal defense against the federal criminal charges.*fn2 On January 25, 2008, ELEC issued Advisory Opinion No. 01-2008, addressing the following question, as the agency phrased it: "May an elected officeholder use campaign funds from his single candidate committee to pay for legal expenses incurred in defense of a criminal indictment issued by the United States Attorney's office?" ELEC answered the question in the negative, concluding that Senator Bryant's criminal defense costs were not "ordinary and necessary expenses of holding public office," N.J.S.A. 19:44A-11.2(a)(6), and that spending campaign funds for those costs would contravene a prohibition on expending campaign monies for legal fees that constitute "personal use." N.J.A.C. 19:25-6.10(b). See also N.J.A.C. 19:25-6.5(c)
The New Jersey Campaign Contributions and Expenditures Reporting Act (Act), N.J.S.A. 19:44A-1 to --47, limits the use of campaign funds to certain specified purposes:
a. All contributions received by a candidate, candidate committee, a joint candidates committee or a legislative leadership committee shall be used only for the following purposes:
(1) the payment of campaign expenses;
(2) contributions to any charitable organization . . . except any charitable organization of which the candidate or a member of the candidate's immediate family is a paid officer, director or employee or receives compensation for goods or services provided to the organization;
(3) transmittal to another candidate, candidate committee, or joint candidates committee, or to a political committee, continuing political committee, legislative leadership committee or political party committee, for the lawful use by such other candidate or committee;
(4) the payment of the overhead and administrative expenses related to the operation of the candidate committee or joint candidates committee of a candidate or a legislative leadership committee;
(5) the pro rata repayment of contributors; or
(6) the payment of ordinary and necessary expenses of holding public office. [N.J.S.A. 19:44A-11.2a (emphasis added).]
These limitations on the use of campaign funds were adopted in response to a report issued in 1990 by the Ad Hoc Commission on Legislative Ethics and Campaign Finance. The Commission was created to address "certain problems and public concerns" with the then-current system of campaign finance, which the Commission found had led to "a slow, yet insidious erosion of public confidence in the system which is harmful not only to the reputation of the Legislature, but also to the democratic tradition in this State." Among the problems the Commission identified were: "The allowable uses of political contributions are unclear and potentially open to abuse;" and "A public perception that legislators use their official positions to further their personal interests."
The Commission Report also expressed the members' conclusion that political contributions were donated to a candidate or officeholder for one purpose only: to get that person elected or reelected. Hence, any other use of this money must be carefully controlled. Permitting funds to be converted for personal use poses clear ethical and legal difficulties.
The Commission recognized that, while the Act at that time did not address permissible uses of campaign contributions, ELEC had adopted regulations (then codified as N.J.A.C. 19:25-7.2 and -7.4) prohibiting candidates from converting campaign contributions to their personal use.*fn3 However, the Commission recommended that the issue also be addressed by statute. For that reason, the Commission recommended that legislation be adopted to restrict the use of political contributions to five purposes: payment of campaign-related expenses, charitable ...