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In re Election Law Enforcement Commission Advisory Opinion No. 01-2008

March 8, 2010

IN RE ELECTION LAW ENFORCEMENT COMMISSION ADVISORY OPINION NO. 01-2008


On certification to the Superior Court, Appellate Division, whose opinion is reported at 404 N.J. Super. 29 (2008).

SYLLABUS BY THE COURT

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).

The issue in this appeal is whether the New Jersey Election Law Enforcement Commission (ELEC) properly construed the New Jersey Campaign Contributions and Expenditures Reporting Act, N.J.S.A. 19:44A-1 to -47 (Campaign Contributions Act), and the regulations implementing that Act, in determining that payments in defense of federal criminal corruption charges are not "ordinary and necessary expenses of holding public office."

Wayne R. Bryant served in the New Jersey Senate from 1995 until January 8, 2008. He had designated "Friends of Senator Wayne R. Bryant" as his single candidate committee fund for the 2007 primary election. As of January 2008, the fund retained $640,221 in campaign deposits. In March 2007, a federal grand jury returned an indictment charging Senator Bryant with crimes of corruption and fraud. After a trial that ended in November 2008, Bryant was found guilty. Meanwhile, in December 2007, Friends of Senator Wayne R. Bryant (referred to as "Bryant" for ease of reference) sought an advisory opinion from ELEC that would allow it to pay the costs of defending against the criminal charges. Bryant argued that those costs were "ordinary and necessary expenses of holding public office" under N.J.S.A. 19:44A-11.2(a)(6).

ELEC ruled that the use of campaign funds to cover the costs of a defense to a federal criminal indictment would violate N.J.S.A. 19:44A-11.2 and regulations promulgated to enforce that statute, N.J.A.C. 19:25-6.5 to -6.10. ELEC determined that expenses related to the defense of a criminal indictment were not "ordinary" because they are not "normally incurred by an officeholder." ELEC noted that Bryant's intended use of campaign funds did not meet the regulatory definition of "ordinary and necessary expenses of holding public office," which is "any expense that reasonably promotes or carries out the responsibilities of a person holding elective public office," N.J.A.C. 19:25-6.7(a). ELEC also deemed the use of campaign funds in defense of an indictment to be different from other permitted uses, such as covering the defense of a defamation lawsuit brought against a candidate or officeholder.

The Appellate Division affirmed. In re Election Law Enforcement Comm'n Advisory Op. No. 01-2008, 404 N.J. Super. 29 (App. Div. 2008). The panel recognized that courts should defer to a state agency's interpretation of statutes and implementing regulations that the agency is charged with construing and enforcing, unless the agency's interpretation is "plainly unreasonable." The panel found nothing "plainly unreasonable" in ELEC's construction of the Campaign Contributions Act or in the agency's interpretation of its own regulation.

The Court granted Bryant's petition for certification. 198 N.J. 473 (2009).

HELD: The Election Law Enforcement Commission's interpretation of N.J.S.A. 19:44A-11.2(a)(6) is not plainly unreasonable. An "ordinary" expense of holding public office does not include legal costs incurred defending against an indictment charging official corruption.

1. The Legislature delegated to ELEC the authority to promulgate regulations to implement the Campaign Contributions Act, and to render advisory opinions on whether a given set of facts would violate the Act. The Court defers to an agency's interpretation of a statute and its implementing regulations, unless the interpretation is "plainly unreasonable." (pp. 9-10)

2. To determine whether ELEC's interpretation was plainly unreasonable, the Court first examines the relevant provision of the Campaign Contributions Act. N.J.S.A. 19:44A-11.2(a)(6) permits Bryant to use campaign funds to pay "ordinary and necessary expenses of holding public office." The issue here is whether defraying legal expenses related to defending against a federal criminal indictment alleging official corruption is an "ordinary and necessary expense of holding public office." "Ordinary" has been defined as "customary, usual, normal," and "occurring in the regular course of events." Also, ELEC has promulgated a regulation defining "ordinary and necessary expense of holding public office" to mean "any expense that reasonably promotes or carries out the responsibilities of a person holding elective public office." N.J.A.C. 19:25-6.7(a). (pp. 10-12)

3. Defending a criminal indictment alleging corrupt practices is not an "ordinary" expense of holding public office. A grand jury indictment is not a customary, or usual, or normal incident of holding public office, nor does it occur in the regular course of events. Most elected public officials carry out their duties honestly and honorably and will not be the target of a criminal prosecution. The Court cannot conclude that the Legislature intended that defending against a criminal indictment would be an ordinary incident of holding public office, or that the use of campaign funds to cover such defense costs would be an expense that "reasonably promotes" an officeholder's responsibilities, N.J.A.C. 19:25-6.7(a). (pp. 12-13)

4. None of the regulations implementing the Campaign Contributions Act support Bryant's argument. For example, N.J.A.C. 19:25-6.10 permits the use of campaign funds for "legal fees and expenses" in specified instances, but none include the defense of a criminal indictment. Also, the legislative history of N.J.S.A. 19:44A-11.2 is not inconsistent with ELEC's commonsense interpretation of that statute. The overriding objective of N.J.S.A. 19:44A-11.2 was to restore public confidence by ensuring that campaign funds were not used for purposes unrelated to an election or holding office. (pp. 14-17)

5. The Court must defer to ELEC's decision. ELEC's interpretation of N.J.S.A. 19:44A-11.2(a)(6), which prohibited Bryant's use of campaign funds to finance a legal defense against a federal indictment charging corruption, was not plainly unreasonable. Expenditures in defense of a criminal indictment are not "ordinary and necessary expenses of holding public office" under N.J.S.A. 19:44A-11.2(a)(6). (pp. 17-20)

The judgment of the Appellate Division is AFFIRMED.

JUSTICES LONG, LaVECCHIA and HOENS and JUDGE STERN (temporarily assigned) join in JUSTICE ALBIN's opinion. CHIEF JUSTICE RABNER and JUSTICES WALLACE and RIVERA-SOTO did not participate.

The opinion of the court was delivered by: Justice Albin

Argued November 9, 2009

Former State Senator Wayne R. Bryant sought an advisory opinion from the New Jersey Election Law Enforcement Commission (ELEC) to allow him to use campaign funds to defray expenses related to his defense of criminal corruption charges returned by a federal grand jury. ELEC determined that the use of campaign funds for that purpose did not constitute "the payment of ordinary and necessary expenses of holding public office" and therefore would violate N.J.S.A. 19:44A-11.2(a)(6) of the New Jersey Campaign Contributions and Expenditures Reporting Act (Campaign Contributions Act), N.J.S.A. 19:44A-1 to -47. The Appellate Division upheld ELEC's ruling, finding that its interpretation of the statute was not "plainly unreasonable." In re Election Law Enforcement Comm'n Advisory Op. No. 01-2008, 404 N.J. Super. 29, 39 (App. Div. 2008).

We affirm. ELEC's interpretation of N.J.S.A. 19:44A-11.2(a)(6) is not plainly unreasonable. We thus conclude that an "ordinary" expense of holding public office does not include legal costs incurred defending against criminal ...


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