WSR 04-08-086

PROPOSED RULES

PUBLIC DISCLOSURE COMMISSION


[ Filed April 6, 2004, 12:18 p.m. ]

Original Notice.

Preproposal statement of inquiry was filed as WSR 04-05-070 and 04-01-147.

Title of Rule: Title 390 WAC, rules relating to sample ballots and slate cards (WAC 390-17-030); status of citizen complaints (WAC 390-37-030); exemptions from political advertising (WAC 390-18-030); explanation and reporting of in-kind contributions (WAC 390-16-207); promise or promise to pay (WAC 390-05-295); personal use of contributions (WAC 390-16-238); citizen action letters (WAC 390-37-041); and PDC regular meetings (WAC 390-12-010).

Purpose: To clarify reporting requirements for candidates and political committees, conform to recent case law and update commission's regular meeting schedule.

Statutory Authority for Adoption: RCW 42.17.370.

Statute Being Implemented: Chapter 42.17 RCW.

Summary: The proposed amendment to WAC 390-17-030 conforms to updated statute by removing the requirement that federal political committees file C-5 reports if they are currently filing reports with the Federal Election Commission. The proposed amendment to WAC 390-37-030 reinstates subsection (3) as a result of recent case law. The proposed amendment to WAC 390-37-041 removes reference to the tolling language and conforms to recent case law. The proposed amendment to WAC 390-18-030 exempts political tickers from the "top five contributor" requirement. The proposed amendment to WAC 390-16-207 indicates that in-kind contributions are to be treated the same as cash contributions. A new rule, WAC 390-05-295, defines promise or promise to pay. The proposed amendment to WAC 390-16-238 further defines personal use. The proposed amendment to WAC 390-12-010 updates the location and schedule of regular meetings.

Reasons Supporting Proposal: The proposed amendments and new rule will clarify the statutory requirements under chapter 42.17 RCW and provide guidance to those entities required to disclose campaign contributions and expenditures.

Name of Agency Personnel Responsible for Drafting and Implementation: Susan Harris, 711 Capitol Way, Room 206, Olympia, (360) 753-1981; and Enforcement: Phil Stutzman, 711 Capitol Way, Room 206, Olympia, (360) 664-8853.

Name of Proponent: Public Disclosure Commission, governmental.

Rule is not necessitated by federal law, federal or state court decision.

Explanation of Rule, its Purpose, and Anticipated Effects: See Summary and Reasons Supporting Proposal above.

Proposal Changes the Following Existing Rules: [No information supplied by agency.]

No small business economic impact statement has been prepared under chapter 19.85 RCW. The implementation of these rules has minimal impact on small businesses.

RCW 34.05.328 does not apply to this rule adoption. The Public Disclosure Commission (PDC) is not an agency listed in subsection (5)(a)(i) of section 201. Further, the PDC does not voluntarily make section 201 applicable to this rule adoption pursuant to subsection (5)(a)(i) of section 201, and, to date, JARRC has not made section 201 application to this rule adoption.

Hearing Location: Commission Meeting Room, Evergreen Plaza Building, 711 Capitol Way, Room 206, Olympia, WA, on May 27, 2004, at 9:00 a.m.

Assistance for Persons with Disabilities: Contact Ruthann Bryant by May 13, 2004, (360) 753-1111.

Submit Written Comments to: Susan Harris, Public Disclosure Commission, P.O. Box 40908, Olympia, WA 98504-0908, fax (360) 753-1112, sharris@pdc.wa.gov, by May 20, 2004.

Date of Intended Adoption: May 27, 2004.

April 6, 2004

Susan Harris

Assistant Director

OTS-7075.1


NEW SECTION
WAC 390-05-295   Definition -- Promise or promise to pay.   For the purposes of the definition of "expenditure" found in RCW 42.17.020, "promise" or "promise to pay" includes any oral or written order placed, debt or obligation to purchase goods or services or anything of value, or any offer to purchase advertising space, broadcast time or other advertising related product or service.

[]

OTS-7087.1


AMENDATORY SECTION(Amending WSR 94-05-010, filed 2/3/94, effective 3/6/94)

WAC 390-12-010   Public disclosure commission -- Regular meetings.   Pursuant to RCW 42.30.075, regular meetings of the public disclosure commission ((shall)) are scheduled to be held on the fourth Tuesday of each ((calendar)) month at 9:00 a.m. unless a different time is noted on an agenda, except November and December when ((they shall be held on the third Tuesday)) a combined meeting is scheduled to be held during the first or second week of December. The meetings shall be held in the ((Second Floor Conference Room)) commission meeting room, second floor, Evergreen Plaza Building, 711 Capitol Way, Olympia, Washington, unless circumstances require relocating to another site. If relocating is required, the meeting shall be held at a place designated by the ((chair)) executive director of the commission.

[Statutory Authority: RCW 42.17.390. 94-05-010, 390-12-010, filed 2/3/94, effective 3/6/94. Statutory Authority: RCW 42.17.370(1). 85-15-020 (Order 85-03), 390-12-010, filed 7/9/85; 82-05-001 (Order 82-01), 390-12-010, filed 2/4/82; 80-06-119 (Order 80-06), 390-12-010, filed 5/30/80; 79-10-070 (Order 79-06), 390-12-010, filed 9/19/79; Order 62, 390-12-010, filed 8/26/75; Order 14, 390-12-010, filed 7/31/73.]

OTS-7076.1


AMENDATORY SECTION(Amending WSR 98-12-034, filed 5/28/98, effective 6/28/98)

WAC 390-16-207   In-kind contributions -- Explanation and reporting.   (1) An in-kind contribution occurs when a person provides goods, services or anything of value, other than money or its equivalent, to a candidate or political committee free-of-charge or for less than fair market value, unless the item or service given is not a contribution according to RCW 42.17.020 (14)(b) or WAC 390-17-405.

(2) An in-kind contribution also occurs when a person makes an expenditure that

Supports or opposes a candidate or a ballot measure,
Meets the definition of contribution in RCW 42.17.020(14) or WAC 390-05-210, and
Is other than a monetary contribution made directly to a candidate or political committee.
For example, an in-kind contribution occurs when a person, after collaborating with a candidate or a candidate's agent, purchases space in a newspaper for political advertising supporting that candidate or opposing that candidate's opponent.

(3) According to RCW 42.17.095(8) and WAC 390-16-238, a candidate may not use his or her campaign funds to make a contribution, including an in-kind contribution, to another candidate or a political committee. However, under RCW 42.17.095(3), a candidate may use surplus funds as defined in RCW 42.17.020 to make a contribution to a political party or caucus political committee.

(4) In-kind contributions to recipients who have limits.

(a) If a state office candidate receives in-kind contributions from any person valued at more than $25 in the aggregate during an election cycle, the contribution is reportable by the giver and the recipient pursuant to chapter 42.17 RCW and is subject to the applicable contribution limit provided in RCW 42.17.640.

(b) If a bona fide political party or legislative caucus committee receives in-kind contributions from any person valued at more than $25 in the aggregate during a calendar year, the contribution is reportable by the giver and the recipient pursuant to chapter 42.17 RCW and is subject to the applicable contribution limit provided in RCW 42.17.640.

(c) If a state official against whom recall charges have been filed or a political committee supporting the recall of a state official receives in-kind contributions from any person valued at more than $25 in the aggregate during a recall campaign, the contribution is reportable by the giver and the recipient pursuant to chapter 42.17 RCW and is subject to the applicable contribution limits provided in RCW 42.17.640.

(5) Political committees that make in-kind contributions. A political committee that makes in-kind contributions to a candidate or political committee totaling more than $50 in the aggregate during a reporting period must identify the recipient and the amount of the contribution as part of its C-4 report covering that period.

If the in-kind contribution is in the form of an expenditure that has been obligated, but not yet paid, the identity of the recipient candidate or political committee, along with a good faith estimate of the value of the contribution, must be disclosed in part 3 of Schedule B, in addition to the other information required by the form. When the expense is paid, the recipient's name and the amount of the contribution must be disclosed on Schedule A, along with the other information required by the form.

If a political committee provides equipment, property or anything else of value owned, leased or controlled by it to a candidate or political committee, the contributing committee must attach a statement to its C-4 report showing the name of the candidate or political committee to whom the contribution was made and the date, description and fair market value of the in-kind contribution.

(6) Reporting by recipients. Except as provided in subsection (4), in-kind contributions from one source are not reportable by the recipient candidate or political committee until the aggregate value of all in-kind contributions received from that source during a reporting period is more than $50. If this threshold is met, the in-kind contributions must be reported in part 1 of Schedule B to the C-4 report covering that reporting period.

(7) Valuing in-kind contributions.

(a) For purposes of determining the value of goods or services provided as in-kind contributions, refer to WAC 390-05-235, Definition--Fair market value.

(b) If an expenditure that constitutes an in-kind contribution is made, the value of the in-kind contribution to a particular candidate or political committee is the portion of the expense that benefits the candidate or political committee.

(8) Application of RCW 42.17.105(8) -- Last-minute contributions.

(a) If an expenditure that constitutes an in-kind contribution is made no later than twenty-two days before a general election and written notice of the in-kind contribution is in the possession of the recipient candidate committee or political committee twenty-two or more days before that general election, the contribution is not subject to the respective $5,000 or $50,000 maximum amounts specified in RCW 42.17.105(8).

(b) If an in-kind contribution is in the form of personal services donated to a campaign for the duration of the twenty-one days before a general election, and if written notice of the value of this donation is in the possession of the recipient candidate or political committee twenty-two or more days before the election, that in-kind contribution is not subject to the respective $5,000 or $50,000 maximum amounts specified in RCW 42.17.105(8).

[Statutory Authority: RCW 42.17.370(1). 98-12-034, 390-16-207, filed 5/28/98, effective 6/28/98. Statutory Authority: RCW 42.17.390. 94-11-016, 390-16-207, filed 5/5/94, effective 6/5/94. Statutory Authority: RCW 42.17.370. 93-22-002, 390-16-207, filed 10/20/93, effective 11/20/93; 93-16-064, 390-16-207, filed 7/30/93, effective 8/30/93. Statutory Authority: RCW 42.17.370(1). 86-04-071 (Order 86-01), 390-16-207, filed 2/5/86; 82-14-016 (Order 82-04), 390-16-207, filed 6/28/82; Order 79, 390-16-207, filed 6/25/76.]

OTS-7077.1


AMENDATORY SECTION(Amending WSR 94-07-141, filed 3/23/94, effective 4/23/94)

WAC 390-16-238   Personal use of contributions -- Standard.   (1) Except as specifically allowed by chapter 42.17 RCW, any expenditure of a candidate's campaign funds that is not directly related to the candidate's election campaign is a ((prohibited)) personal use of campaign funds prohibited under RCW 42.17.125.

(2) An expenditure of a candidate's campaign funds shall be considered personal use if it fulfills or pays for any commitment, obligation or expense that would exist irrespective of the candidate's election campaign.

(3) If an activity or expenditure is both personal and campaign related, the campaign may pay no more than the fair market value of its share of the activity or expenditure. For example, if a candidate uses a personal vehicle for campaign purposes, the campaign may reimburse the candidate for:

(a) The prorated share of documented gasoline, maintenance and insurance costs directly related to the campaign's usage of the vehicle; or

(b) The standard mileage rate established by the Internal Revenue Service for those documented miles directly related to the campaign's usage.

(4) Examples of expenditures presumed to be for personal use include, but are not limited to:

(a) Mortgage, rent, utility or maintenance expenses for personal living accommodations;

(b) Clothing purchases and maintenance expenses not related to the campaign;

(c) Automobile expenses not related to the campaign;

(d) Travel expenses not related to the campaign;

(e) Household food items;

(f) Restaurant expenses except for in-person fund-raising or campaign organizational activities;

(g) Tuition payments not related to the campaign;

(h) Admission to sporting events, concerts, theaters, or other forms of entertainment unless the event is primarily related to the candidate's campaign;

(i) Country club membership fees, dues and payments;

(j) Health club or recreational facility membership fees, dues and payments;

(k) Social, civic, fraternal, or professional membership dues, fees and payments unless the expenditure occurs during an election year and membership is required to gain access to the organization's mailing list for campaign purposes or other facilities for the candidate's campaign;

(l) Home or business internet service provider costs;

(m) Home or business newspaper and periodical subscriptions;

(n) Greeting cards to persons who would customarily receive such cards (e.g., family, friends and business associates).

[Statutory Authority: RCW 42.17.390. 94-07-141, 390-16-238, filed 3/23/94, effective 4/23/94.]

OTS-7078.1


AMENDATORY SECTION(Amending WSR 02-12-007, filed 5/23/02, effective 6/23/02)

WAC 390-17-030   Sample ballots and slate cards.   (1) Intent. The commission finds that, under certain conditions, expenditures for slate cards and other candidate listings fall within the scope of RCW 42.17.640 (14)(a) and are, therefore, exempt from contribution limits and eligible for payment with a bona fide political party's exempt funds. Slate cards and other candidate listings remain reportable under chapter 42.17 RCW and subject to the political advertising provisions of the law.

The purpose of this exemption from the contribution limits is to allow political parties and other sponsors to tell the general public which candidates they support. The exemption is not intended as a device to circumvent the contribution limits and full reporting requirements by undertaking any degree of significant campaigning on behalf of candidates.

(2) For purposes of RCW 42.17.640 (14)(a), "sample ballots" means slate cards, or other candidate listings, whether written or oral, that satisfy the qualifying criteria specified in subsection (10) of this section.

(3) Sample ballots constitute political advertising for a slate or list of candidates and must be properly identified and otherwise in compliance with the political advertising provisions, RCW 42.17.505 through 42.17.550.

(4)(a) A bona fide political party may use contributions it receives pursuant to RCW 42.17.640(14) to produce and distribute sample ballots.

(b) Expenditures for sample ballots do not count against a bona fide political party's contribution limit to the candidates listed on the sample ballot. Further, when reporting sample ballot expenditures, a bona fide political party is not required to attribute a portion of the expenditure to each of the candidates listed on the sample ballot, but the names of the candidates must be reported along with the other information required by chapter 42.17 RCW and chapter 390-17 WAC.

(5) Any person, as defined by RCW 42.17.020, who makes an expenditure for sample ballots has made an expenditure that does not count against that person's contribution limit to the candidates listed.

(6) An in-state political committee, when disclosing expenditures for sample ballots as part of its C-4 report, is not required to attribute a portion of the expenditure to the candidates listed on the sample ballot, but the names of the candidates and their respective party affiliations must be reported along with other information required by chapter 42.17 RCW and chapter 390-17 WAC.

(7) An out-of-state ((or federal)) committee, when disclosing expenditures for sample ballots on a C-5 report, is not required to allocate a portion of the expenditure to the candidates listed on the sample ballot, but must report that an expenditure for sample ballots was made, the name and address of the person to whom the expenditure was made, the full amount of the expenditure, and the name, office sought and party affiliation of each candidate listed on the sample ballot. The report is due ((within ten days of the date the sample ballot is received by recipients)) no later than the 20th day of the month following the month in which the expenditure was made.

(8) If a lobbyist or lobbyist employer makes expenditures for sample ballots, those expenditures are required to be reported in detail on the lobbyist's monthly L-2 report. Itemization of these expenditures must include the names and respective party affiliations of the candidates listed on the sample ballot, but no portion of the expenditure need be allocated to individual candidates listed on the sample ballot.

(9) The candidates listed on a sample ballot are not required to report any portion of the expenditure as an in-kind contribution to their campaigns.

(10) Qualifying criteria for sample ballots, slate cards and other candidate listings. In order not to count against a person's contribution limit to the candidates listed on a sample ballot and, in the case of a bona fide political party, in order to be eligible for payment with contributions received pursuant to RCW 42.17.640(14), a sample ballot must satisfy all of the criteria in (a) through (d) of this subsection.

(a) The sample ballot must list the names of at least three candidates for election to public office in Washington state and be distributed in a geographical area where voters are eligible to vote for at least three candidates listed. The candidate listing may include any combination of three or more candidates, whether the candidates are seeking federal, state or local office in Washington.

(b) The sample ballot must not be distributed through public political advertising; for example, through broadcast media, newspapers, magazines, billboards or the like. The sample ballot may be distributed through direct mail, telephone, electronic mail, Web sites, electronic bulletin boards, electronic billboards or personal delivery by volunteers.

(c) The content of a sample ballot is limited to:

The identification of each candidate (pictures may be used);

The office or position currently held;

The office sought;

Party affiliation; and

Information about voting hours and locations.

Therefore, the sample ballot must exclude any additional biographical data on candidates and their positions on issues as well as statements about the sponsor's philosophy, goals or accomplishments. The list must also exclude any statements, check marks or other indications showing support of or opposition to ballot propositions.

(d) The sample ballot is a stand-alone political advertisement. It must not be a portion of a more comprehensive message or combined in the same mailing or packet with any other information, including get-out-the-vote material, candidate brochures, or statements about the sponsor's philosophy, goals or accomplishments. On Web sites, electronic bulletin boards or electronic billboards, the sample ballot must be a separate document.

[Statutory Authority: RCW 42.17.370(1). 02-12-007, 390-17-030, filed 5/23/02, effective 6/23/02; 99-12-066, 390-17-030, filed 5/27/99, effective 6/27/99; 96-05-001, 390-17-030, filed 2/7/96, effective 3/9/96. Statutory Authority: RCW 42.17.370. 93-16-064, 390-17-030, filed 7/30/93, effective 8/30/93.]

OTS-7079.1


AMENDATORY SECTION(Amending WSR 95-01-074A, filed 12/16/94, effective 1/16/95)

WAC 390-18-030   Political advertising -- Exemptions from identification.   (1) Pursuant to RCW 42.17.510(4), the following forms of political advertising need not include the sponsor's name and address, the "notice to voters" or the "top five contributors" information as otherwise required by RCW 42.17.510 (1) and (2) because such identification is impractical: Ashtrays, badges and badge holders, balloons, bingo chips, brushes, bumper stickers -- size 4" x 15" or smaller, buttons, cigarette lighters, clothes pins, clothing, coasters, combs, cups, earrings, emery boards, envelopes, erasers, frisbees, glasses, golf balls, golf tees, hand-held signs, hats, horns, ice scrapers, inscriptions, key rings, knives, labels, letter openers, magnifying glasses, matchbooks, nail clippers, nail files, newspaper ads of one column inch or less, noisemakers, paper and plastic cups, paper and plastic plates, paper weights, pencils, pendants, pennants, pens, pinwheels, plastic tableware, pocket protectors, political tickers, pot holders, reader boards where message is affixed in moveable letters, ribbons, 12-inch or shorter rulers, shoe horns, skywriting, staple removers, stickers -- size 2-3/4" x 1" or smaller, sunglasses, sun visors, swizzle sticks, state or local voters pamphlets published pursuant to law, tickets to fund raisers, water towers, whistles, yard signs -- size 4' x 8' or smaller, yo-yos, and all other similar items.

(2) Political tickers are text messages that scroll across a television screen during scheduled programming.

[Statutory Authority: RCW 42.17.390. 95-01-074A, 390-18-030, filed 12/16/94, effective 1/16/95. Statutory Authority: RCW 42.17.370(1). 85-15-020 (Order 85-03), 390-18-030, filed 7/9/85.]

OTS-7080.1


AMENDATORY SECTION(Amending WSR 03-22-065, filed 11/4/03, effective 12/5/03)

WAC 390-37-030   Enforcement procedures -- Citizen complaints filed with the commission.   (1) When a citizen complaint has been filed with the agency pursuant to WAC 390-37-040, neither the complainant nor any other person shall have special standing to participate or intervene in the investigation or consideration of the complaint by the commission. However, the staff shall give notice to the complainant of any open commission hearings on the matter and the complainant may be called as a witness in any enforcement hearing or investigative proceeding.

(2) The complainant or any other person may submit documentary evidence and/or written factual or legal statements to the staff at any time up to and including the fifth calendar day before the date of any enforcement hearing or proceeding.

(3) A person not satisfied with the dismissal of a complaint by the commission or its executive director may pursue an appropriate remedy under RCW 42.17.400(4).

[Statutory Authority: RCW 42.17.370. 03-22-065, 390-37-030, filed 11/4/03, effective 12/5/03; 02-23-001, 390-37-030, filed 11/6/02, effective 12/7/02. Statutory Authority: RCW 42.17.370(1). 86-04-071 (Order 86-01), 390-37-030, filed 2/5/86; 84-12-017 (Order 84-03), 390-37-030, filed 5/25/84; Order 79, 390-37-030, filed 6/25/76.]

OTS-7081.1


AMENDATORY SECTION(Amending WSR 03-22-065, filed 11/4/03, effective 12/5/03)

WAC 390-37-041   Enforcement procedures -- Allegations submitted to the attorney general's office and/or prosecuting attorneys.   (((1))) When a person has notified the attorney general or prosecuting attorney under RCW 42.17.400(4) that there is reason to believe a violation of the sections of chapter 42.17 RCW enforced by the commission has occurred, ((the statutory time periods are tolled when)) and the attorney general or prosecutor forwards the complaint to the commission((.

(2) After the allegations have been forwarded to the commission)), commission staff may:

(((a))) (1) Initiate an investigation;

(((b))) (2) Submit a report to the commission that may include a recommendation;

(((c))) (3) Schedule the matter for an adjudicative proceeding before the commission following investigation; and/or

(((d))) (4) Take any other steps consistent with the agency's authority and resources.

[Statutory Authority: RCW 42.17.370. 03-22-065, 390-37-041, filed 11/4/03, effective 12/5/03.]

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