Advisory Opinion 05-06
This Advisory Opinion responds to an elected official who asked whether County funds received by the official to “reimburse” the official for a personal cellular phone used primarily for County business are contributions under the Hawaii campaign spending law.1
The Campaign Spending Commission (Commission) responds that the “reimbursement” received is a contribution to the extent that the “reimbursement” includes amounts for calls made or received for express advocacy (express advocacy calls).
We understand that the Hawaii County government reimburses Council members for the cost of a personal cellular phone plan if the phone is used primarily for County business.2 The members are reimbursed the lesser of $75 or the cost of the phone plan.
The official has a personal cellular phone plan, but has not yet requested reimbursement from the County. The official stated that:
· Eighty to one hundred fifty calls are made per month.
· During eighteen months of the official’s twenty four month election cycle, two-thirds of the calls are for County business and one-third of the calls are for personal use. There may be one or two express advocacy calls.
· During six months of the election cycle, express advocacy calls may “increase to 30 or more calls a month.”
It appears that the official would qualify for the reimbursement because the phone is used “primarily”3 for County business (“two-thirds” of the calls are for County business).
The official may receive a contribution from the County because the County is not in the class of prohibited contributors.4 However, the Commission expresses no opinion regarding the ramifications of the county contributing to a campaign under Hawaii Revised Statutes outside of the Chapter 11, Part XII, Subpart B, and County ethics laws because those issues are not within its jurisdiction.
A “contribution” includes any gift, deposit of money, or anything of value made by any person for the purpose of influencing an election for a Hawaii elective public or constitutional office.5 The Commission interprets this term broadly and anything of value is a contribution, unless an exemption exists.
Further, even though the County may not have intended a contribution, reimbursement for express advocacy phone calls would be considered a contribution of the calls made or received by the candidate for that purpose.6
The official’s receipt of County funds, therefore, is a contribution to the extent that the reimbursement includes amounts for express advocacy calls. The portion reported as a contribution is the reasonable value of the express advocacy calls. The receipt of County funds is not a contribution if the reimbursement received does not include amounts for express advocacy calls (i.e., the reimbursement is limited to amounts for County business and personal use).7 Though the elected official may stay within the parameters of the phone plan for County business, personal business, and express advocacy calls, a contribution, nonetheless, exists.
The Commission uses the following test for express advocacy:
When read as a whole, and with limited reference to external events, be susceptible to no other reasonable interpretation but as an exhortation to vote for or against a specific candidate.8
The Commission provides this Advisory Opinion as a means of stating its current interpretation of the Hawaii Campaign Spending laws provided under HRS section 11-191, et seq. and the administrative rules of the Commission provided in chapter 2-14, Hawaii Administrative Rules. The Commission may adopt, revise, or revoke this Advisory Opinion upon the enactment of amendments to the Hawaii Revised Statutes or the adoption of administrative rules by the Commission.
Dated: Honolulu, Hawaii, November 10, 2005.
CAMPAIGN SPENDING COMMISSION
Steven E. Olbrich
Michael E. Weaver
1 We have taken the liberty of rephrasing the original inquiry (“whether county reimbursements for council members personal cell phones is an appropriate use of county funds or not”).
2 While we understand that a County phone is provided to Council members if the phone is used “primarily” for county business, the official that requested this opinion has a personal cellular phone plan. We express no opinion regarding the use of a County phone for express advocacy. There may be other laws outside the Commission’s jurisdiction (e.g., ethics laws) which address the use of a County phone for express advocacy.
3 The term “primarily” is not defined in the County memorandum that the official provided to us.
4 See section 11-201, HRS (anonymous contributions unlawful); section 11-202, HRS (false name contributions prohibited); and section 11-204, HRS (contributions from foreign nationals prohibited).
5 “Contribution” means:
(1) A gift, subscription, deposit of money or anything of value, or cancellation of a debt or legal obligation and includes the purchase of tickets to fundraisers for the purpose of:
(A) Influencing the nomination for election, or election, of any person to office:
(B) Influencing the outcome of any question or issue that appears or is reasonably certain to appear on the ballot at the next applicable election described in subparagraph (A); or
(C) Use by any party or committee for the purposes set out in subparagraph (A) or (B);
(2) The payment, by any person political party, or any other entity other than a candidate or committee, of compensation for the personal services or services of another person that are rendered to the candidate or committee without charge or at an unreasonably low charge for the purposes set out in paragraph (1)(A), (1)(B), or (1)(C);
(3) A contract, promise, or agreement to make a contribution; provided that notwithstanding this paragraph and paragraphs (1) and (2), the term “contributions” shall not include services or portions thereof voluntarily provided without reasonable compensation by individuals to or in behalf of a candidate or committee; or
(4) Notwithstanding paragraphs (1), (2), and (3), a candidate’s expenditure of the candidate’s own funds or the making of a loan or advance in the pursuit of the candidate’s campaign shall not be a contribution for the purpose of this subpart but shall nevertheless be reportable as a campaign receipt. See section 11-191, HRS.
6 In Advisory Opinion No. 00-04, the Commission opined that even where the contributor (broadcaster) “did not intend to influence a nomination or election, the radio or television time would be considered a contribution if it was used by the candidate for that purpose.”
7 It is suggested that if, for example, the express advocacy calls comprise 10% of the total phone calls, that the elected official seek reimbursement for only 90% of the elected official’s phone calls.
8 Federal Election Commission v. Furgatch, 807 F.2d 857 (9th Cir. 1987); Advisory Opinions 98-12; 00-04; and 02-10.