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HomeMy WebLinkAboutElection Campaign Regulations Ordinance 2005 FinalLEGISLATIVE DRAFT 1 Chapter 2.40 ELECTION CAMPAIGN REGULATIONS* Sections: 2.40.010 Title. 2.40.020 Purpose and intent. 2.40.030 Definitions. 2.40.040 Campaign treasurer - Appointment required - Compliance with provisions required. 2.40.050 Contributions. 2.40.055 Independent expenditures. 2.40.060 Election campaign accounts. 2.40.070 Campaign statements. 2.40.080 Campaign signs. 2.40.090 Responsibilities of City Clerk. 2.40.100 Criminal misdemeanor actions. 2.40.110 Civil actions. 2.40.120 Injunctive relief. 2.40.130 Cost of litigation. 2.40.140 Disqualification. 2.40.150 Construction of provisions. 2.40.160 Council study committee. 2.40.170 Expiration of provisions. *Prior legislation: Prior code §§ 2800 - 2812, as amended by Ord. 1067 § 1, 1986, Ord. 1191 § 1, 1991, and Ord. 1254 § 1, 1994. 2.40.010 Title. This chapter may be cited as the Election Campaign Regulations of the City. (Ord. 1333 § 1 (part), 1998) 2.40.020 Purpose and intent. A. It is the purpose and intent of this chapter: 1. To promote integrity, honesty and fairness in municipal election campaigns. LEGISLATIVE DRAFT 2 2. To ensure a level of discussion of public issues adequate for a viable campaign by providing voters with the information necessary to make an assessment of each candidate or measure before voting. 3. To require public disclosure of campaign contributions and expenditures, including but not limited to, those made in support of or in opposition to candidates or measures in municipal elections. 4. To place realistic and enforceable limits on the amounts persons may contribute in municipal election campaigns. 5. To ensure that funds contributed to a campaign committee are used solely for campaign purposes. 6. To allow appropriate use of signage in municipal, regional, State and federal campaigns. 7. To provide full and fair enforcement of all the provisions of this chapter. B. By enacting this chapter, the Council does not intend to deprive or restrict any citizen of the exercise of rights guaranteed under the United States Constitution and the California Constitution. (Ord. 1333 § 1 (part), 1998) 2.40.030 Definitions. The following words or phrases shall have the meanings as indicated in this section when used in this chapter: A. “Campaign statement” means a report, made on a form prescribed and supplied by the City Clerk, which provides the information required by this chapter of candidates and committees. Each campaign statement shall reflect all contributions received and expenditures made through the closing date specified in Section 2.40.070. B. “Campaign treasurer” means the duly appointed representative responsible for financial accounting and reporting as required by this chapter. A committee may have only one campaign treasurer and one assistant treasurer. LEGISLATIVE DRAFT 3 C. “Candidate” means any individual listed on the ballot for election to or recall from any City office, or who has otherwise taken action to seek such election to City office. D. “Committee” means any person or combination of persons which directly or indirectly receives contributions or makes expenditures or contributions for the purpose of expressly advocating the election or defeat of a clearly identified candidate(s) or for supporting or opposing the passage of any measure(s) in the City of San Luis Obispo. E. “Contribution”: 1. The term “contribution” includes the following: a. A payment, loan, forgiveness of a loan, payment of a loan by a third party, or an enforceable promise to make a payment except to the extent that full and adequate consideration is received, unless it is clear from the surrounding circumstances that it is not made for campaign purposes. An expenditure made at the behest of a candidate or committee is a contribution to the candidate or committee, unless full and adequate consideration is received for making the expenditure. b. Money or property contributed by the candidate, as well as discounts or rebates granted by television and radio stations and newspapers which are not extended on an equal basis to all candidates for the same office. c. The purchase of ticket(s) for events such as dinners, luncheons, rallies and similar fund-raising events. Contribution reporting requirements shall apply when the total accumulative ticket purchases by any one person exceed the limitations set forth in Section 2.40.050(C)(3). d. Non-monetary contributions such as art objects, furniture, and similar items of value, or anything of value transferred from one committee to another. LEGISLATIVE DRAFT 4 e. The payment of compensation by any person for the personal services or expenses of any other person, if such services are rendered, or expenses incurred on behalf of a candidate or committee without payment of full and adequate consideration by the candidate or committee. f. Funds or professional services donated to assist in election-related litigation. 2. The term “contribution” does not include: amounts received pursuant to an enforceable promise to the extent such amounts have been previously reported as a contribution. However, the fact that such amounts have been received shall be indicated in the appropriate campaign statement. 3. Notwithstanding the definition of “contribution” as set out in this subsection, the term does not include volunteer personal services or payments made by any individual for personal travel expenses, if such payments are made voluntarily without any understanding or agreement which shall be, directly or indirectly, repaid to the person. F. “Election” means any general, special or recall municipal election of the City of San Luis Obispo. G. “Expenditure” means a payment, forgiveness of a loan, payment of a loan by a third party, or an enforceable promise to make payment, unless it is clear from the surrounding circumstances that it is not made for political purposes. When expenses are incurred to support election-related litigation, they are considered expenditures. An expenditure is made on the date the payment is made or on the date consideration, if any, is received, whichever is earlier. H. “Immediate family” means a candidate’s or elected officeholder’s spouse or domestic partner, and/or dependent children. I. “Independent expenditure” means an expenditure made by any person in connection with a communication which expressly advocates the election LEGISLATIVE DRAFT 5 or defeat of a clearly identified candidate(s) or the qualification, passage, or defeat of a clearly identified measure(s) or, taken as a whole and in context, unambiguously urges a particular result in an election but which is not made to or at the behest of the affected candidate or committee. (Government Code Section 82031) J. “Measure” means any Charter amendment or other proposition which is submitted to a popular vote at any municipal election by the City Council, or which is submitted or is intended to be submitted to a popular vote at a municipal election by initiative, referendum or recall procedure whether or not it qualifies for the ballot. K. “Person” means an individual, proprietorship, firm, partnership, joint venture, labor union, syndicate, business trust, company, corporation, association, committee (including both controlled and independent committees), and any other organization or group of persons acting in concert. (Ord. 1407 § 1, 2002; Ord. 1333 § 1 (part), 1998) 2.40.040 Campaign treasurer - Appointment required - Compliance with provisions required. A. Each candidate and/or each committee shall appoint a campaign treasurer. A candidate may serve as the campaign treasurer for his/her campaign or for his/her committee. An assistant treasurer may also be appointed. B. Each campaign treasurer shall be responsible for complying with the requirements of the California Government Code in addition to complying with the provisions of this chapter. (Ord. 1407 § 2, 2002; Ord. 1333 § 1 (part), 1998) 2.40.050 Contributions. A. Transmittal to Campaign Treasurer. All persons who receive contributions on behalf of a candidate or committee shall transmit the contributions in full to the campaign treasurer promptly, together with a list showing the name and address of each contributor and the amount of the contribution, subject to the exceptions provided in this section. LEGISLATIVE DRAFT 6 B. Refusal to Accept. A candidate or a campaign treasurer shall have full authority to refuse and to return any contribution offered, provided the contribution is returned within 14 days of receipt. C. Prohibitions. 1. No person other than a candidate or the candidate’s immediate family members shall make, and no person or campaign treasurer shall solicit or accept, any contribution which will cause the total amount contributed by such person with respect to a single election in support of, or in opposition to, such candidate, including contributions to all committees supporting or opposing such candidate, to exceed $200. 2. The above contribution limitations do not apply to committees formed primarily to support or oppose the qualification or passage of a ballot measure. Ballot measure committees may not make contributions to candidates or to committees which make contributions to candidates. 3. No person shall make a contribution for any other person under an assumed name or under the name of any other person. 4. No candidate or committee shall retain any amount greater than $50 from one person or source without obtaining the name, address, and occupation of that contributor. Any anonymous contribution greater than $50 shall be forwarded to the City Clerk and deposited in the City’s treasury. 5. For the purposes of this section, a contribution shall be deemed received at the time of actual receipt by the campaign treasurer. 6. No person, candidate or candidate’s committee shall make or accept any contribution greater than $50- after 5:00 p.m., Monday, 8 days preceding the day of election, except that a candidate and/or a candidate’s immediate family shall be permitted to make additional contributions to the candidate or to the candidate’s committee. 7. Any contribution of $1,000 or more from a single source which is made to or received by a committee primarily formed to support or LEGISLATIVE DRAFT 7 oppose a ballot measure during the 16 days immediately preceding the election at which the measure is being voted upon must be reported to the City Clerk within 24 hours of the time it is received or contributed. Any contribution of $100 or more from a single source which is made to or received by a committee primarily formed to support or oppose a ballot measure during the 8 days preceding the election at which the measure is being voted upon must be reported to the City Clerk within 24 hours. Late contribution reports must be filed by fax, telegram, mailgram, guaranteed overnight delivery service, or personal delivery (not by regular mail). 8. No person shall deduct or withhold any amount or percentage from any contribution. Any compensation provided to any person for solicitation, collection or other service shall be treated as an election expenditure item. D. Aggregation of Contributions. 1. For the purposes of this section, contributions received from a joint checking account shall be attributed to the individual who signs the check. If two or more individuals sign the check, the contribution is divided equally between or among the signers, unless there is an accompanying document signed by each individual whose name is on the check which clearly indicates a different apportionment. 2. Contributions made by two or more entities must be combined if the same person, or a majority of the same person, directs or controls the contributions. 3. Contributions made by entities in a parent-subsidiary relationship and business entities with the same controlling owner (more than 50%) must be combined unless the entities act completely independently in their decisions to make contributions. A parent- subsidiary relationship exists when one entity owns more than 50% of another business entity. (Ord. 1407 § 3, 2002; Ord. 1333 § 1 (part), 1998) 2.40.055 Independent expenditures. LEGISLATIVE DRAFT 8 A. Contribution Limitations Pertaining to a Candidate Election. Any person who makes independent expenditures supporting or opposing a candidate(s) shall not accept any contribution in excess of the amounts set forth in Section 2.40.050(C). B. Reproduction of Materials. Any person who reproduces, broadcasts or distributes any material which is drafted, printed, prepared or previously broadcast by a candidate(s) or a committee controlled by such candidate shall report such an expenditure as a non-monetary contribution to such candidate or committee. C. Identification of Expenditures. Any person who makes independent expenditures for or against a candidate or a ballot measure shall indicate clearly on any material published, displayed, distributed, or broadcast the name of the person and the fact that the material was paid for by that person. D. Every person accepting or making contributions pertaining to candidate elections shall comply with all of the requirements imposed on candidates and committees by this chapter. Every person making expenditures pertaining to candidate elections shall comply with all reporting requirements of this chapter. (Ord. 1333 § 1 (part), 1998) 2.40.060 Election campaign accounts. A. Candidate Intention Statement and the Campaign Bank Account. 1. Candidate Intention Statement. Any individual who intends to be a candidate for a City elective office must file a statement of intention to run for office prior to soliciting or receiving any contribution or loan. Form 501 (Candidate Intention) is used to comply with this requirement, and is filed with the City Clerk. 2. Candidate Campaign Bank Account. In addition to filing the candidate intention statement, an individual who plans to run for a City elective office and who plans to accept contributions and make campaign related expenditures must set up a campaign bank account at a financial institution with a branch located in the City of San Luis Obispo. LEGISLATIVE DRAFT 9 3. City ballot measure committees must set up a campaign bank account at a financial institution with a branch located in the City of San Luis Obispo. B. Statement of Organization. For each campaign bank account into which contributions totaling $1,000 are received (including the candidate’s personal funds) or within 10 days of receiving contributions of $1,000 or more, a recipient committee Statement of Organization (Form 410) must be filed with the Secretary of State. A copy shall also be filed with the City Clerk. If a recipient committee qualifies during the 16 days prior to an election, it must file, by telegram, fax or personal delivery within 24 hours of qualifying as a committee, the information required to be reported in the Statement of Organization. A copy of this form shall be filed with the City Clerk. C. Deposit of Contributions. All campaign contributions accepted by a campaign treasurer shall be deposited into the election campaign account by the campaign treasurer or his/her authorized agent. D. Expenditures. Campaign expenditures shall be made only by checks drawn against the election campaign account by the campaign treasurer or authorized agent, except that a candidate or committee may establish one petty cash account. 1. No more than $100 may be in the petty cash fund at any time, and no expenditures of more than $25 may be made from a petty cash account. The petty cash account may be used only for expenses associated with the candidate’s election to the specific office for which the petty cash fund was established. 2. Petty cash or funds in the election campaign account shall not be considered for any purpose to be personal funds of a candidate, campaign treasurer or any other person. E. Access to Records by City Clerk. The City Clerk shall have full access at all reasonable hours to the bank’s records concerning all election campaign accounts. F. Disbursement of Unexpended Campaign Funds. If, following the election, the final campaign statement for any committee discloses an LEGISLATIVE DRAFT 10 unexpended campaign surplus, the campaign treasurer shall disburse the whole of the surplus to the City and/or a nonprofit charitable organization (qualified for federal income tax exemption) of the candidate's or campaign treasurer’s choice. This shall be done no later than 90 days after the election. G. Closing of Account. No later than 90 days following the election, the campaign treasurer shall close the election campaign account and file a State Form 460 (Recipient Committee Campaign Statement) with the City Clerk. The campaign treasurer shall also file a State Form 410 (Statement of Organization – Termination).with the Secretary of State, with a copy to the City Clerk. However, should litigation arise as a result of the conduct of the campaign, either during the campaign period or after the conclusion of the campaign, the account may be kept open until such litigation is finally concluded. Within 45 days of such conclusion, a final campaign statement shall be filed with the City Clerk. H. Retention of Records. The campaign treasurer shall retain all campaign statements and all other records required by this chapter for a period of 4 years after the election. (Ord. 1407 §§ 4, 5, 6, 2002; Ord. 1333 § 1 (part), 1998) 2.40.070 Campaign statements. A. Required Filing Schedule. Every campaign treasurer, upon receiving or expending $100 or more, shall file with the City Clerk campaign statements according to the following schedule: 1. State campaign statements shall be filed as required by the provisions of the Government Code. 2. A supplemental City campaign statement shall be filed no later than 12:00 noon, Tuesday, one week before the election. The closing date of this statement shall be 5:00 p.m., Monday, 8 days before the election. B. Contents. 1. Each State campaign statement filed shall contain the information required under the provisions of the Government Code. LEGISLATIVE DRAFT 11 2. The supplemental City campaign statement shall consist of: a. The name, address, occupation, and amount of the contribution for each person who contributes greater than $50. In addition, the name of the employer shall be provided for contributions of $100 or greater . b. The total amount received from all persons who each contribute $50 or less. c. The total expenditures made by each committee. C. Filing. Each document required to be filed in this chapter shall be filed with the City Clerk during business hours, and elsewhere as may be required by the Government Code. D. Filing Fees. Filing fees, if any, shall be established by Council resolution. E. Publication. On the Saturday preceding the election, the City Clerk shall publish in a newspaper of general circulation in the City of San Luis Obispo within the City the following information for each committee: 1. Total receipts. 2. Total expenditures. 3. Contributions; the name of each person contributing greater than $50 4. The notice shall report of any candidate and/or committee that has failed to comply by the required deadline with the campaign statement requirements pursuant to this section. (Ord. 1407 § 7, 2002; Ord. 1333 § 1 (part), 1998) 2.40.080 Campaign signs. A. Severability. This section is a separate and severable provision of the election campaign regulations. LEGISLATIVE DRAFT 12 B. Campaign Signs. Campaign signs shall not exceed three square feet per sign in residential zones and 10 square feet per sign in nonresidential zones, and shall be removed no later than 10 days following the election. C. Definition. “Campaign sign” means a sign intended to draw attention to or communicate a position on any issue, candidate, or measure in any national, state, local, college or university campus election; the placement of which is in conformity with Section 15.40.300 (Prohibited Signs); and which otherwise is not subject to regulation under Chapter 15.40 (Sign Regulations.) D. Violation. Violation of this section shall be an infraction. (Ord. 1407 § 14, 2002) E. Enforcement. Enforcement of this section shall be pursuant to either Chapter 1.12 (General Penalty) or Chapter 1.24 (Administrative Code Enforcement Procedures) of the Municipal Code. 2.40.090 Responsibilities of City Clerk. A. Duties. In addition to any other duties required of the City Clerk under this chapter, the City Clerk shall: 1. Prescribe and furnish, without charge, appropriate forms for all campaign statements, documents and reports required to be filed by this chapter. 2. Determine whether required statements and declarations have been filed and, if so, whether they conform on their face with the requirements of this chapter. 3. Promptly notify all persons who have failed to file a statement in the form and at the time required by this chapter. 4. Report, in writing, apparent violations of this chapter to the City Attorney. 5. Place a timely advertisement(s) in a newspaper of general circulation in the City of San Luis Obispo advising the public that a LEGISLATIVE DRAFT 13 person(s) supporting or opposing a candidate(s) or a measure(s) through newspaper or other advertisements may be subject to City reporting requirements. 6. Compile and maintain a current log of all filed statements pertaining to each reporting committee. 7. Provide an appropriate form, and prescribe a date for submission, which allows any candidate to file a 200-word ballot statement of qualifications and/or description of his/her stand on issues. Such statement shall be on a form provided by the City Clerk in accordance with any other provision as set forth by Elections Code Section 13307 et seq. B. Additional Help or Services. The City Clerk is authorized and directed to hire part-time help, contract for services, and purchase supplies as the City Clerk deems necessary to carry out the additional duties imposed on the City Clerk’s office by this chapter. Within 90 days after each election, the City Clerk shall provide the Council with a detailed report of the total direct and indirect labor, materials and other costs incurred by the City Clerk’s office in performing such additional duties. (Ord. 1407 § 8, 2002; Ord. 1333 § 1 (part), 1998) 2.40.100 Criminal misdemeanor actions. Any person who violates any provision of this chapter is guilty of a misdemeanor. Any person who causes any other person to violate any provision of this chapter, or who aids and abets any other person in the violation of any provision of this chapter, shall be liable under the provisions of this section. (Ord. 1333 § 1 (part), 1998) 2.40.110 Civil actions. A. Any person who intentionally or negligently violates any provision of this chapter shall be liable in a civil action brought by the City Attorney or by a person residing within the City for an amount not more than three times the amount of the unlawful contribution or expenditure. B. If any person files an original City campaign statement after any deadline imposed by this chapter, he or she shall pay, in addition to any LEGISLATIVE DRAFT 14 other penalties provided for under this chapter, the sum of $100 per day after the deadline until the statement or report is filed. Liability may not be enforced if, on an impartial basis, the City Clerk determines that the late filing was not willful and that enforcement of the liability will not further the purposes of this chapter. Liability shall not be waived if the supplemental City campaign statement is not filed within 5 days, of the deadline after the City Clerk has sent specific written notice of the filing requirement. In addition, the City Clerk may assess any applicable fines in accordance with State law. C. If two or more persons are responsible for any violation, they shall be jointly and severally liable. D. Any person, before filing a civil action pursuant to this section, shall first file with the City Attorney a written request for the City Attorney to commence the action. The request shall contain a statement of the grounds for believing a cause of action exists. The City Attorney shall respond within 10 days after receipt of the request indicating whether he or she intends to file a civil action. If the City Attorney indicates in the affirmative and files a suit within 30 days thereafter, no other action may be brought unless the action by the City Attorney is dismissed without prejudice. E. In determining the amount of liability, the court may take into account the seriousness of the violation and the degree of culpability of the defendant. If a judgment is entered against the defendant or defendants in an action, the plaintiff shall receive 50% of the amount recovered. The remaining 50% shall be deposited into the City treasury. In an action brought by the City Attorney, the entire amount shall be paid to the City treasury. F. No civil action alleging a violation of any provision of this chapter shall be filed more than 4 years after the date the violation occurred. (Ord. 1407 § 9, 2002; Ord. 1333 § 1 (part), 1998) 2.40.120 Injunctive relief. The City Attorney or any person residing in the City may sue for injunctive relief to enjoin violations or to compel compliance with the provisions of this chapter. (Ord. 1333 § 1 (part), 1998) 2.40.130 Cost of litigation. LEGISLATIVE DRAFT 15 The court may award to a plaintiff or defendant who prevails in any action authorized by this chapter his or her costs of litigation, including reasonable attorneys’ fees; provided, however, no costs of litigation or attorneys’ fees shall be awarded against the City. (Ord. 1333 § 1 (part), 1998) 2.40.140 Disqualification. In addition to any other penalties prescribed by law, if an official receives a contribution in violation of this chapter, the official shall not be permitted to make, participate in making or in any way attempt to use his or her official position to influence a governmental decision in which the contributor has a financial interest. The provisions of Government Code Section 87100 et seq. and the regulations of the Fair Political Practices Commission shall apply to interpretations of this section. (Ord. 1333 § 1 (part), 1998) 2.40.150 Construction of provisions. A. This chapter shall be in addition to all other City and State laws applicable to municipal elections. Unless the contrary is stated or clearly appears from the context, the definitions and terms set forth in the Government Code shall govern the interpretations of terms used in this chapter. This chapter shall be construed liberally in order to effectuate its purposes. B. If any provision of this chapter, or the application thereof to any person or circumstance, is held invalid, the validity of the remainder of the chapter and the applicability of such provision to other persons and circumstances shall not be affected thereby. (Ord. 1333 § 1 (part), 1998) 2.40.160 Council study committee. A. Appointment. At least 9 months prior to the expiration of this chapter, the Council shall appoint a committee of at least 5 citizens to study the efficacy of this chapter. The committee shall complete its deliberations and report its findings to the City Council on or before January 31, 2010. (Ord. 1407 § 10, 2002: Ord. 1333 § 1 (part), 1998) LEGISLATIVE DRAFT 16 2.40.170 Expiration of provisions. Unless readopted, this chapter shall expire on June 30, 2010. (Ord. 1407 § 11, 2002: Ord. 1333 § 1 (part), 1998) (Moved to subsection 2.40.080.)