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HomeMy WebLinkAboutSection 2.40 of Municipal Code Original DocumentChapter 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 Responsibilities of city clerk. 2.40.090 Criminal misdemeanor actions. 2.40.100 Civil actions. 2.40.110 Injunctive relief. 2.40.120 Cost of litigation. 2.40.130 Disqualification. 2.40.140 Construction of provisions. 2.40.150 Council study committee. 2.40.160 Expiration of provisions. 2.40.170 Campaign signs. *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; 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; and 6. 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. Comment [AH1]: At this time, we have not reviewed the "Sections" section. This can be modified if necessary later in the process. 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 disclosure 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 assistance treasurer. 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). Committees shall be in one of two categories: 1. “Recipient committee” – one which receives contributions totaling one hundred dollars or more in a calendar year; or 2. “Independent expenditure committee” – one which makes independent expenditures totaling one hundred dollars or more in a calendar year but not to or at the behest of a candidate or committee. 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. Nonmonetary contributions such as art objects, furniture, and similar items of value, or anything of value transferred from one committee to another. 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: a. 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. Comment [AH2]: Is there anyway we can clarify this language - I am not quite sure what it means. Comment [AH3]: Clarification re enforceable promise? b. A payment made by an occupant of a home or office for costs related to any meeting or fund-raising event held in the occupant’s home or office if the costs for the meeting or fund- raising events are two hundred fifty dollars or less. 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 and dependent children. I. “Independent expenditure” means an expenditure made by any person in connection with a communication which expressly advocates the election 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 Title 9 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. 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 fourteen days of receipt. Comment [AH4]: "Person" needs to be defined so as to include organization or other group or it is not broad enough. Perhaps this would best work as a separate definition??? 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 one hundred dollars. 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 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 nor any committee shall retain any amount of twenty-five dollars or more from one person or source without obtaining the name, address, occupation, and name of employer of that contributor. Any anonymous contribution of twenty-five dollars or more 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 of twenty-five dollars or more after five p.m., Monday, eight days preceding the day of election, except that 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 one thousand dollars 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 sixteen days immediately preceding the election at which the measure is being voted upon must be reported to the city clerk within twenty-four hours of the time it is received or contributed. Any contribution of one hundred dollars 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 eight days preceding the election at which the measure is being voted upon must be reported to the city clerk within twenty-four hours. Late contribution reports must be filed by 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 husband and wife shall be treated as if received one-half from each unless otherwise designated by the contributor. 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 fifty percent) 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 fifty percent of another business entity. (Ord. 1407 § 3, 2002; Ord. 1333 § 1 (part), 1998) 2.40.055 Independent expenditures. A. Contribution Limitations. 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 nonmonetary contribution to such candidate or committee. C. Identification of Expenditures. Any person who makes independent expenditures for or against a candidate 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. Every person shall comply with all of the requirements imposed on candidates and committees by this chapter, including both contributions to, and expenditures by, such person. (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 Secretary of State. A copy shall be 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 located in San Luis Obispo. 3. City ballot measure committees must set up a campaign bank account at a financial institution within the city of San Luis Obispo. B. Statement of Organization. For each campaign bank account into which contributions totaling one thousand dollars are received (including the candidate’s personal funds) or within ten days of receiving contributions of one thousand dollars or more, a recipient committee statement of organization (Form 410) must be filed with the Secretary of State. A copy shall be filed with the city clerk. If a recipient committee qualifies during the sixteen days prior to an election, it must file, by telegram, facsimile or personal delivery within twenty-four hours of qualifying as a committee, the information required to be reported in the statement of organization. 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 one hundred dollars may be in the petty cash fund at any one time, and no expenditures totaling twenty-five dollars or more 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. Comment [AH5]: Again, "person" needs to be defined so as to include organization or other group. Perhaps this would best work as a separate definition??? Comment [AH6]: This section must be reviewed/revised for constitutionality. Comment [AH7]: Reword 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 unexpended campaign surplus, the campaign treasurer shall disburse the whole of the surplus to the city and/or a nonprofit charitable (qualified for federal income tax exemption) organization of the campaign treasurer’s choice. This shall be done no later than the state’s third campaign disclosure statement deadline. G. Closing of Account. Following the election and no later than the state’s third campaign disclosure statement deadline, the campaign treasurer shall close the election campaign account and file a second city campaign statement (Form 101 or 102) with the city clerk. State Form 410, Statement of Termination, is required if the campaign account totals one thousand dollars or more and is filed with the Secretary of State (a copy shall be filed with the city clerk) verifying the closure. and listing of donees of all disbursements authorized by subsection E of this section, and the dollar amounts given to each donee; provided, hhowever, 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 forty-five 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 four 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 one hundred dollars or more, shall file with the city clerk campaign disclosure statements according to the following schedule: 1. State campaign disclosure statements shall be filed as required by the provisions of Title 9 of the California Government Code. 2. A city campaign statement (Form 101 or 102) shall be filed no later than twelve noon, Tuesday, one week before the election. The closing date of this statement shall be five p.m., Monday, eight days before the election. B. Contents. 1. Each state campaign statement filed shall contain the information required under the provisions of Title 9 of the California Government Code. 2. The city campaign statement (Form 101 or 102) shall consist of: a. The name, address, occupation, and name of employer and amount of the contribution for each person who contributes twenty-five dollars or more. b. The total amount received from all persons who each contribute less than twenty-five dollars. c. The name, address, occupation and name of employer of each person expending twenty- five dollars or more if qualifying as an independent expenditure committee. d. 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 Title 9 of the California 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 within the city the following information for each committee: Comment [AH8]: Info re donees is contained in Form 461 not 410. Comment [AH9]: The reference to the State deadline in this section is not valid. There is no such thing. Additionally, I'm concerned with whether the City can mandate the termination of a committee and the closing of an account - particularly ballot measure committee - if there are still outstanding payments that need to be made. This may be legal, but I'm not sure we could enforce this provision for the April 26th special election. Comment [AH10]: If Committee agrees w/Council action re budget, this entire section should be deleted and replaced with language related to posting State forms on the website. This would also mean any references to the City's forms 101 and 102 should probably be deleted throughout the document. 1. Total receipts; 2. Total expenditures; 3. Contributions; the name of each person contributing twenty-five dollars or more with the amount contributed; 4. The name of each person(s) expending twenty-five dollars or more if filing as an independent expenditure committee; 5. A statement, if necessary, that a candidate and/or committee 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 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 advising the public that a 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 list 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 four hundred 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 ninety 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) 2.40.090 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) 2.40.100 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 disclosure statement after any deadline imposed by this chapter, he or she shall pay, in addition to any other penalties provided for under this chapter, the sum of one hundred dollars per day after the deadline until the statement or Comment [AH11]: The State allows a late fine of $10 per day up to $5,000. Perhaps we should say "may pay" rather than "shall pay" since there is flexibility. 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 first city pre-election campaign statement is not filed within five days, and the second and final city campaign statement is not filed within ten days of the deadline after the city clerk has sent specific written notice of the filing requirement. 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 ten 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 thirty 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 fifty percent of the amount recovered. The remaining fifty percent 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 four years after the date the violation occurred. (Ord. 1407 § 9, 2002; Ord. 1333 § 1 (part), 1998) 2.40.110 Injunctive relief. Any person residing in the city, including the city attorney, may sue for injunctive relief to enjoin violations or to compel compliance with the provisions of this chapter. (Ord. 1333 § 1 (part), 1998) 2.40.120 Cost of litigation. 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) 2.40.130 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) 2.40.140 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 Title 9 of the California 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) 2.40.150 Council study committee. A. Appointment. At least nine months prior to the expiration of this chapter, the council shall appoint a committee of at least five 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, 2006. (Ord. 1407 § 10, 2002: Ord. 1333 § 1 (part), 1998) 2.40.160 Expiration of provisions. Unless readopted, this chapter shall expire on June 30, 2006. (Ord. 1407 § 11, 2002: Ord. 1333 § 1 (part), 1998) 2.40.170 Campaign signs. A. Severability. This section is a separate and severable provision of the election campaign regulations. B. Campaign Signs. Campaign signs shall not exceed three square feet per sign in residential zones and ten square feet per sign in nonresidential zones, and shall be removed no later than ten 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, or university campus election. D. Violation. Violation of this section shall be an infraction. (Ord. 1407 § 14, 2002) Comment [AH12]: Tim Girvin also recommended that this section be added, but I'm not sure how much of Section 1.12 we'd want to insert or do we just want to make a reference to it?