Ethics Opinion Search

February 16, 1995


Opinion No. 1995-5


Steve Brown
Executive Director
Kansas Republican Party
2348 S. Topeka Blvd.
Topeka, Kansas 66611-1286

Dear Mr. Brown:

This opinion is in response to your letter of December 20, 1994 in which
you request an opinion from the Kansas Commission on Governmental Standards
and Conduct concerning the Campaign Finance Act (K.S.A. 25-4142 et seq.)
and the state conflict of interest laws (K.S.A. 46-215 et seq.).

FACTUAL STATEMENT

We understand that you ask for this opinion in your capacity as Executive
Director for the Kansas Republican Party. You request our opinion
regarding financial transactions which take place for the purpose of paying
legal fees associated with court challenges to the seating of individuals
elected to serve in the Kansas Legislature.

QUESTIONS

You ask the following questions:

1. When a candidate who has been defeated in a general election contests
the certification of election of his opponent through the courts, is he or
she still considered a candidate for the purposes of soliciting and
accepting contributions to pay his or her legal fees associated with such a
contest?

2. When a candidate who has been defeated in a general election contests
the certification of election of his opponent through the courts, would the
solicitation and acceptance of contributions for the purpose of paying
legal fees be considered campaign contributions and if not, what limits
would apply?

3. If the legal proceedings associated with such a challenge take place in
a non-election year, would the challenging candidate be considered as a
candidate for the next election cycle?

Opinion No.
February 16, 1995
Page 2



OPINION

First, we note that the definition of "candidate" depends on which section
of Chapter 25 applies. For purposes of the Campaign Finance Act, K.S.A.
25-4142 et seq., an individual becomes a "candidate" by doing one of the
following: appointing a treasurer or candidate committee, making a public
announcement, making any expenditure or accepting any contribution towards
becoming a candidate, or filing a declaration of intent or a nomination
petition (See K.S.A. 25-4143(a)). However, an individual becomes a
"candidate" for purposes of being placed on the election ballot only by
filing a declaration of intent or a nomination petition pursuant to K.S.A.
25-205. Therefore, an individual can become a "candidate", but never
appear on the election ballot.

Similarly, an individual ceases to be a "candidate" under the Campaign
Finance Act when all residual funds are expended, the position of treasurer
or candidate committee is dissolved and a termination report is filed (See
K.S.A. 25-4157 and K.S.A. 25-4157a). However, under the remainder of
Chapter 25, an individual ceases to be a candidate upon withdrawing the
declaration of intent or nomination petition, or when the Board of
Canvassers announces the winner and loser of each election (See K.S.A. 25-
306a and K.S.A. 25-701). Therefore, an individual can withdraw from the
ballot or lose an election, but still be a "candidate" under the Campaign
Finance Act.

In answer to your first question, when a candidate who has been defeated in
a general election contests the certification of his or her opponent, we
believe the individual is still a "candidate" until a termination report is
filed.

The same situation applies to your third question. When the challenge to
the certification takes place during a non-election year, so long as the
candidate's campaign account is open and no termination report is filed,
that individual remains a "candidate" for purposes of the Campaign Finance
Act. However, he or she would not become a "candidate" for purposes of
appearing on the primary election ballot until a new declaration of intent
or a nomination petition is filed with the Secretary of State.

The answer to your second question depends, in part, on how the individual
chooses to pay for his or her legal fees. First, we note that K.S.A. 25-
4143(d)(1) defines "contribution" in pertinent part to mean:

"Any advance, conveyance, deposit, distribution, gift, loan or
payment of money or any other thing of value made for the purpose
of influencing the nomination or election of any individual to
state or local office..."
Opinion No.
February 16, 1995
Page 3




The issue then is the intent of the donor. Anyone donating money to a
defeated candidate contesting the election certification is giving such
money "for the purpose of influencing the nomination or election of any
individual to state or local office". Any such donation would clearly be a
contribution and would need to be reported as such. We believe that the
use of campaign funds to contest an election certification is "for
legitimate campaign purposes or for expenses of holding political office"
and therefore could be used by the candidate to contest the certification
(See K.S.A. 25-4157a(a)). However, the campaign contribution limitations
found in K.S.A. 25-4153 would apply, and beginning January 1, 1995, the
primary election cycle for the 1996 primary election began (see K.S.A. 25-
4149). Since there is a chance that the defeated candidate may win the
election certification or, if not, file a new declaration of intent or
nomination petition to be placed on the 1996 ballot, the state party needs
to be aware that a contested primary has a $500 limit per recipient. We
suggest the state party not contribute more than $500 to help in the
contested certification in the event there is a contested primary in 1996.
Also, since the individual contesting the election certification is still a
"candidate", contributions from any registered lobbyist or political
committee from January 1 through May 15 could not be accepted (See K.S.A.
25-4153a).

If the candidate wanted to set up an independent fund rather than use
campaign funds to pay for the legal costs associated with the contested
certification, the state conflict of interest laws K.S.A. 46-215 et seq.
would apply.

K.S.A. 46-236 states:

"No state officer or employee or candidate for state office shall
solicit any economic opportunity, gift, loan, gratuity, special
discount, favor, hospitality, or service from any person known to
have a special interest, under circumstances where such officer,
employee or candidate knows or should know that a major purpose
of the donor in granting the same could be to influence the
performance of the official duties or prospective official duties
of such officer, employee or candidate."

Therefore, the candidate could not solicit donations to this fund from
anyone known to have a "special interest".

If the candidate were to receive unsolicited donations to this independent
fund, K.S.A. 46-237(a) would apply. That section states:
Opinion No.
February 16, 1995
Page 4




"No state officer or employee or candidate for state office shall
accept, or agree to accept any economic opportunity, gift, loan,
gratuity, special discount, favor, hospitality, or service having
an aggregate value of $40 or more in any calendar year from any
one person known to have a special interest, under circumstances
where such person knows or should know that a major purpose of
the donor is to influence such person in the performance of their
official duties or prospective official duties."

Anyone donating to this fund known to have a "special interest" would be
subject to the $40 per calendar year limitation.

In closing, we note that the solicitation prohibition in K.S.A. 46-236 and
the $40 limitation on unsolicited donations in K.S.A. 46-237 do not apply
if the candidate receives the donations as campaign contributions and
properly reports them as such. Thus, we suggest that any donations
received by the candidate to be used for legal fees associated with the
contested certification be received as campaign funds.

Sincerely,



Richard C. Loux, Chairman

By Direction of the Commission

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