WSR 05-06-068

PROPOSED RULES

PUBLIC DISCLOSURE COMMISSION


[ Filed March 1, 2005, 3:46 p.m. ]

Original Notice.

Preproposal statement of inquiry was filed as WSR 05-01-027.

Title of Rule and Other Identifying Information: Title 390 WAC, rules relating to enforcement hearings, informal settlement-cases resolved by stipulation prior to an enforcement hearing, electronic filing thresholds and mini campaign reporting.

Hearing Location(s): Commission Hearing Room, 711 Capitol Way, Room 206, Olympia, WA 98504, on April 26, 2005, at 9:00 a.m.

Date of Intended Adoption: April 26, 2005.

Submit Written Comments to: Doug Ellis, Public Disclosure Commission (PDC), P.O. Box 40908, Olympia, WA 98504-0908, e-mail dellis@pdc.wa.gov, fax (360) 753-1112, by April 22, 2005.

Assistance for Persons with Disabilities: Contact Ruthann Bryant by phone (360) 586-0544.

Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: Possible rule amendments to remove the requirement to read stipulations into the record, to apply the ten-day notification requirement to respondents only for actual hearings under the Administrative Procedure Act, to exempt last minute in-kind contributions from the expenditure threshold for mandatory electronic filing, to provide clarification and guidance to candidates and political committees as to when a change in reporting option from mini reporting to full reporting is allowed and what provisions of chapter 42.17 RCW are not applicable when selecting the reporting option.

Reasons Supporting Proposal: To clarify and provide guidance to candidates and political committees concerning enforcement proceedings, electronic filing and reporting options.

Statutory Authority for Adoption: RCW 42.17.370.

Statute Being Implemented: Chapter 42.17 RCW.

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

Agency Comments or Recommendations, if any, as to Statutory Language, Implementation, Enforcement, and Fiscal Matters: The rule amendments are needed to provide clarity, guidance and direction to candidates and political committees.

Name of Proponent: Public Disclosure Commission, governmental.

Name of Agency Personnel Responsible for Drafting: Doug Ellis, 711 Capitol Way, Room 206, Olympia, WA 98504, (360) 664-2735; Implementation: Susan Harris, 711 Capitol Way, Room 206, Olympia, WA 98504, (360) 753-1981; and Enforcement: Phil Stutzman, 711 Capitol Way, Room 206, Olympia, WA 98504, (360) 664-8853.

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

A cost-benefit analysis is not required under RCW 34.05.328. The 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, the Joint Administrative Rules Review Committee has not made section 201 application [applicable] to the adoption of these rules.

March 1, 2005

Susan Harris

Assistant Director

OTS-7753.1


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

WAC 390-37-090   Informal settlement -- Cases resolvable by stipulation prior to an enforcement hearing (adjudicative proceeding), or by other alternative dispute mechanisms.   (1) RCW 34.05.060 authorizes agencies to establish by rule specific procedures for attempting and executing informal settlement of matters. The following procedures are available for informal dispute resolution prior to an adjudicative proceeding that may make more elaborate proceedings under the Administrative Procedure Act unnecessary.

(a) Any enforcement matter before the commission which has not yet been heard in an adjudicative proceeding may be resolved by settlement. The respondent shall communicate his or her request to the executive director or designee (commission staff), setting forth all pertinent facts and the desired remedy. Settlement negotiations shall be informal and without prejudice to rights of a participant in the negotiations.

(b) When the executive director and respondent agree to terms of any stipulation of facts, violations, and/or penalty, commission staff shall prepare the stipulation for presentation to the commission.

(c) Any proposed stipulation shall be in writing and signed by each party to the stipulation or his or her representative. The executive director shall sign for commission staff. The stipulation shall be ((recited on the record)) provided at the hearing((, although attached or referenced documents may be stated by reference and incorporated as a result)). The commission has the option of accepting, rejecting, or modifying the proposed stipulation or asking for additional facts to be presented. If the commission accepts the stipulation or modifies the stipulation with the agreement of the opposing party, the commission shall enter an order in conformity with the terms of the stipulation. If the commission rejects the stipulation or the opposing party does not agree to the commission's proposed modifications to the stipulation, and if no revised stipulation or staff report is presented to the commission, then an adjudicative proceeding shall be scheduled and held.

(2) Parties are encouraged to be creative in resolving cases without further litigation where appropriate.

(3) Following a stipulation of facts or law, if the commission determines certain sanctions or other steps are required by the respondent as a result of the alternative dispute resolution including stipulations and that it intends to enter an order, and the respondent does not timely raise an objection at the hearing, it shall be presumed that the respondent has waived objections and appeals, and agrees to the entry of the order.

[Statutory Authority: RCW 42.17.370. 03-22-065, 390-37-090, filed 11/4/03, effective 12/5/03; 91-16-072, 390-37-090, filed 8/2/91, effective 9/2/91. Statutory Authority: RCW 42.17.370(1). 86-04-071 (Order 86-01), 390-37-090, filed 2/5/86; 84-12-017 (Order 84-03), 390-37-090, filed 5/25/84; Order 81, 390-37-090, filed 7/22/76.]

OTS-7752.1


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

WAC 390-37-060   Enforcement procedures -- Investigation of complaints -- Initiation of hearing (adjudicative proceeding).   (1) Upon receipt of a complaint not obviously unfounded or frivolous, the executive director shall direct an investigation be conducted. If after an initial review of the complaint it is determined that a complete and thorough investigation will require the expenditure of substantial resources, the executive director may request review and concurrence by the commission before continuing the investigation.

(2) The executive director shall initiate an adjudicative proceeding or provide a report to the commission whenever an investigation reveals facts that the executive director has reason to believe are a material violation of the sections of chapter 42.17 RCW under the commission's jurisdiction, and do not constitute substantial compliance.

(3) The respondent shall be notified of the date of the adjudicative proceeding ((or other consideration by the commission)) no later than ten calendar days before that date. The notice shall contain the information required by RCW 34.05.434. The complainant shall also be provided a copy of this notice.

(4) It is the policy of the commission during the course of any investigation that all records generated or collected as a result of that investigation are exempt from public inspection and copying under RCW 42.17.310 (1)(d). If a request is made for any such record that implicates the privacy of an individual, written notice of the records request will be provided to the individual in order that such individual may request a protective order from a court under RCW 42.17.330. Certain documents shall be returned to candidates, campaigns, or political committees as required by RCW 42.17.365 within seven calendar days of the commission's final action upon completion of an audit or field investigation.

[Statutory Authority: RCW 42.17.370. 03-22-065, 390-37-060, filed 11/4/03, effective 12/5/03; 93-24-003, 390-37-060, filed 11/18/93, effective 12/19/93; 91-16-072, 390-37-060, filed 8/2/91, effective 9/2/91. Statutory Authority: RCW 42.17.370(1). 86-04-071 (Order 86-01), 390-37-060, filed 2/5/86; 84-12-017 and 84-12-029 (Orders 84-03 and 84-03A), 390-37-060, filed 5/25/84 and 5/29/84; Order 81, 390-37-060, filed 7/22/76.]

OTS-7913.1


AMENDATORY SECTION(Amending WSR 04-01-130, filed 12/18/03, effective 1/18/04)

WAC 390-19-030   Electronic filing -- Reporting threshold.   (1) The "electronic reporting threshold" that requires electronic filing of all contribution and expenditure reports is met when a candidate or political committee has expended $10,000 or more in the preceding calendar year or expects to expend $10,000 or more in the current calendar year.

(2) It is presumed that a filer "expects to expend" $10,000 or more when any one of the following first occurs:

(a) A filer spends at least $10,000;

(b) A filer is a candidate for the same office last sought, the filer's election is in the current calendar year, and his or her campaign expenditures in the previous election for the same office were $10,000 or more;

(c) A filer's expenditures meet or exceed $2,500 on or before March 31 of the current calendar year;

(d) A filer's expenditures meet or exceed $5,000 on or before June 30 of the current calendar year;

(e) A filer's expenditures meet or exceed $7,500 on or before September 30 of the current calendar year; or

(f) A filer otherwise projects that $10,000 or more will be spent during the current calendar year.

(3) The following expenditures or transactions are excluded from the electronic reporting threshold calculation:

(a) Expenditures made to pay outstanding debts carried forward from a previous election; ((and))

(b) Surplus funds disposed of in accordance with RCW 42.17.095; and

(c) The value of in-kind contributions pledged or received within eight days of a special or general election.

(4) Candidate committees or political committees supporting or opposing ballot propositions that meet, exceed or expect to meet or exceed the electronic reporting threshold shall report electronically for the duration of the campaign.

(5) A report that is filed with the commission electronically need not also be filed with the county auditor or elections officer pursuant to RCW 42.17.080.

[Statutory Authority: RCW 42.17.370(1). 04-01-130, 390-19-030, filed 12/18/03, effective 1/18/04. Statutory Authority: RCW 42.17.370. 01-22-052, 390-19-030, filed 10/31/01, effective 1/1/02.]

OTS-7912.1


AMENDATORY SECTION(Amending WSR 01-22-051, filed 10/31/01, effective 1/1/02)

WAC 390-16-125   Mini campaign reporting -- Exceeding limitations.   ((Whenever there is reason to believe that any of the limitations specified in WAC 390-16-105 or 390-16-111 will or may be exceeded, the)) (1) A candidate or political committee ((may)) shall apply in writing to the commission for authorization to change reporting options((.

(1) If the application is made more than thirty days prior to the date of the election, the application will be considered approved without further action by the commission if the person making application submits)) before the limitations specified in WAC 390-16-105 are exceeded. A complete application shall include all of the following documents:

(a) ((A PDC form C-1 or C-1pc indicating the intention of using)) An amended registration statement (Form C-1 for candidates, Form C-1pc for political committees) selecting the full reporting ((system)) option as provided ((by)) in RCW ((42.17.040)) 42.17.065 - 42.17.090;

(b) ((A)) PDC forms C-3 and ((form)) C-4 with ((appropriate)) relevant schedules and attachments disclosing all contributions and expenditures to date reportable under RCW 42.17.090 for the election campaign, or in the case of continuing political committees, for the calendar year((.)); and

(c)(i) If the applicant is a candidate, a statement affirming that all ((known)) candidates registered with the commission for the office being sought have been notified personally in writing of the application ((stating)), and the manner and date of such notification((. In the case of));

(ii) If the applicant is the treasurer of a political committee supporting or opposing a ballot proposition, ((the)) a statement ((shall affirm)) affirming that ((the committee)) all treasurers of all political committees ((identifiable from the records of the county elections officer or public disclosure)) registered with the commission ((to be opposing or)) as supporting or opposing the proposition have been notified personally in writing of the application ((stating)), and the manner and date of such notification; or

(iii) If the applicant is a county or legislative district party committee, a statement affirming that the treasurer of that party committee's counterpart in any other major political party has been notified personally in writing of the application, and the manner and date of such notification.

(2) An application that is submitted without the required documents described in subsection (1) of this section is incomplete and will not be processed or approved. If the applicant provides the missing documents, the application will be determined to be complete on the date the documents are postmarked or delivered to the commission.

(3) If ((the)) a complete application is ((made within thirty days of)) postmarked or delivered to the commission on or before thirty business days prior to the date of the election, the application shall be approved ((only)) by ((authorization of)) the ((commission)) executive director.

(((a) Prior to such approval being granted, the executive director shall determine that the application contains those documents shown in subsection (1)(a), (b) and (c) above.

(b) The commission staff shall investigate why the applicable requirements were not complied with in the first instance and whether or not the probability of exceeding such limitations was reasonably foreseeable. If the investigation shows that the declaration by the candidate, committee or other person filed under WAC 390-16-115 was made in good faith and that the probability of exceeding such limitations was not reasonably foreseeable, the executive director will approve the reporting option change conditioned upon full future compliance with all applicable requirements of chapter 42.17 RCW.

(3))) (4) If a complete application is postmarked or delivered to the commission on or after twenty-nine business days prior to the election, the application shall be approved by the executive director only if one or more of the following factors are present:

(a) The commission staff did not send to the applicant's campaign in a timely and proper manner, either electronically or by other mail delivery service, a notice that the thirtieth business day deadline for unrestricted changes in reporting options is approaching. To be timely and proper, this notice must be sent at least forty business days before the election to the campaign's electronic mail address or postal service mailing address specified on the registration statement;

(b) The applicant is a candidate and, within thirty business days of the election, a write-in opponent has filed for office in accordance with chapter 29A.24 RCW;

(c) Within thirty business days of the election, an independent expenditure as defined in RCW 42.17.020 is made in support of the applicant's opponent or in opposition to the applicant; or

(d) When ((one)) a candidate or political committee on ((either)) one side of an election campaign or proposition has been approved to change reporting options under ((subsection (1) above, all other candidates and/or committees may change reporting options by meeting the requirements of subsection (1)(a), (b) and (c).

(4) Any person who knowingly or negligently causes or permits the limitations specified in these regulations to be exceeded shall be deemed to have violated the applicable provisions of RCW 42.17.040 - 42.17.090)) this section, each opponent of that candidate or political committee is approved to change options as of the date that opponent postmarks or delivers a complete application to the commission.

(5) Exceeding the aggregate contributions or aggregate expenditures specified in WAC 390-16-105 without complying with the provisions of this section shall constitute one or more violations of chapter 42.17 RCW or 390-17 WAC.

[Statutory Authority: RCW 42.17.370 and 42.17.690. 01-22-051, 390-16-125, filed 10/31/01, effective 1/1/02. Statutory Authority: RCW 42.17.370. 92-18-002, 390-16-125, filed 8/20/92, effective 9/20/92; 92-05-079, 390-16-125, filed 2/18/92, effective 3/20/92; 90-16-083, 390-16-125, filed 7/31/90, effective 8/31/90; 89-20-068, 390-16-125, filed 10/4/89, effective 11/4/89. Statutory Authority: RCW 42.17.370(1). 86-04-071 (Order 86-01), 390-16-125, filed 2/5/86; Order 91, 390-16-125, filed 7/22/77; Order 67, 390-16-125, filed 1/16/76; Order 62, 390-16-125, filed 8/26/75.]

OTS-7911.1


AMENDATORY SECTION(Amending WSR 02-03-018, filed 1/4/02, effective 2/4/02)

WAC 390-16-105   Mini campaign reporting -- Eligibility.   (1) A candidate or candidate's authorized committee, as those terms are defined in RCW 42.17.020, shall not be required to comply with the provisions of RCW ((42.17.060)) 42.17.065 through 42.17.090 except as otherwise prescribed in WAC 390-16-038, 390-16-115, and 390-16-125 when neither aggregate contributions nor aggregate expenditures exceed the amount of the candidate's filing fee provided by law plus a sum not to exceed three thousand five hundred dollars and no contribution or contributions from any person other than the candidate within such aggregate exceed three hundred dollars. However, a bona fide political party may pay the candidate's filing fee provided by law without that payment disqualifying that candidate from eligibility under this section.

(2) A political committee, as that term is defined in RCW 42.17.020, shall not be required to comply with the provisions of RCW ((42.17.060)) 42.17.065 through 42.17.090 except as otherwise prescribed in WAC 390-16-038, 390-16-115, and 390-16-125 when neither aggregate contributions nor aggregate expenditures exceed three thousand five hundred dollars and no contribution or contributions from any person exceed three hundred dollars.

(3) A continuing political committee, as that term is defined in RCW 42.17.020, shall not be required to comply with the provisions of RCW ((42.17.060)) 42.17.065 through 42.17.090 except as otherwise prescribed in WAC 390-16-038, 390-16-115, and 390-16-125 when neither aggregate contributions nor aggregate expenditures during a calendar year exceed three thousand five hundred dollars and no contribution or contributions from any person exceed three hundred dollars.

(4) Candidates and political committees are required to comply with all applicable provisions of chapter 42.17 RCW including, but not limited to, false political advertising, sponsor identification and public inspection of campaign books of account unless specifically exempted under subsections (1) through (3) of this section.

[Statutory Authority: RCW 42.17.370(1). 02-03-018, 390-16-105, filed 1/4/02, effective 2/4/02. Statutory Authority: RCW 42.17.370. 01-10-050, 390-16-105, filed 4/26/01, effective 6/1/01. Statutory Authority: RCW 42.17.370(1). 86-04-071 (Order 86-01), 390-16-105, filed 2/5/86; Order 91, 390-16-105, filed 7/22/77; Order 62, 390-16-105, filed 8/26/75.]

Washington State Code Reviser's Office