ADVISORY OPINION NO. 99-06

     A candidate has asked for an opinion as to whether campaign contributions can be used for a legal defense fund to defend themselves in an impeachment proceeding in a court of law. Specifically, the questions were phrased as follows:

1.  Can candidates use campaign funds to defend themselves from impeachment proceedings; and/or

2.  Must the candidates set a Legal Defense Fund to protect themselves from impeachment proceedings?

     Section 11-200(a)(1), Hawaii Revised Statutes ("HRS") provides in pertinent part as follows:

(a)  A candidate, campaign treasurer, or candidate's committee shall not receive any contributions or receive or make any transfer of money or anything of value:
(1)  For any purpose other than that directly related:

(A)  In the case of the candidate, to the candidate's own campaign: or
(B)  In the case of a campaign of the candidate, question, or issue with which they are directly associated;…

     Section 11-206(c), HRS provides in pertinent part as follows:

(b)  Such contributions may be used after a general or special election for any fundraising activity, for any other politically related activity sponsored by the candidate, for any ordinary and necessary expenses incurred in connection with the candidate's duties as a holder of an elected state or county office, or for any contribution to any community service, educational, youth, recreational, charitable, scientific, or literary organization, or any other organization which the commission by rules adopted pursuant to chapter 91, deems appropriate.

     Hawaii Administrative Rules section 2-14.1-15, provides in pertinent part as follows:

(a)  No candidate, committee, candidate committee, or noncandidate committee shall use any campaign contribution for any personal expense, including without limitation the following:

(9)  Legal expenses not related to the nomination or election of a candidate.

     Hawaii Administrative Rules section 2-14.1-16, provides in pertinent part as follows:

(a)  A candidate, committee, or candidate committee may use campaign contributions to pay for necessary expenses that are predominantly and directly related to a candidate's campaign to influence the nomination or election to the candidate.

     The department of attorney general, in 1984, opined that campaign funds could not be used for a candidate's legal defense. In that case, a candidate asked whether campaign funds could be used to pay attorney fees in defense of a criminal lawsuit where the elected official had been accused of voter fraud. The Commission has consistently applied this legal basis in similar questions, which have arisen.

     The statute and administrative rules provide a clear basis for this advisory opinion. The statute prohibits the use of campaign contributions for legal fees or costs which arise from an action directed toward an elected official acting in that officials capacity as an elected official, or in any other capacity not directly related to influencing the outcome of the election. Furthermore, the use of surplus campaign funds for legal fees is prohibited where the expense is not an "ordinary and necessary" expense.

     The Commission cannot answer the question on the legality of a Legal Defense Fund. However, where funds are received by a candidate as legal fees, such funds may need to be reported as a campaign contribution.

     This Advisory Opinion is provided by the Commission as a means of stating its current interpretation of the Hawaii Election Campaign Contributions and Expenditures 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 9, 1999.

CAMPAIGN SPENDING COMMISSION

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A. Duane Black
Chairperson

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Della Au
Commissioner

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Clifford Muraoka
Commissioner

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Andrea Low
Commissioner

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E. Elizabeth Lee
Commissioner