WSR 13-01-022

PROPOSED RULES

PUBLIC DISCLOSURE COMMISSION


[ Filed December 10, 2012, 1:12 p.m. ]

     Original Notice.

     Preproposal statement of inquiry was filed as WSR 12-21-010.

     Title of Rule and Other Identifying Information: New rule WAC 390-37-182 Penalty factors. The new rule will describe factors the public disclosure commission (PDC) may consider in imposing and suspending penalties for violations of chapter 42.17A RCW (formerly codified at chapter 42.17 RCW), in adjudicative proceedings before the commission and in brief adjudicative proceedings conducted by a single commissioner.

     Hearing Location(s): 711 Capitol Way, Room 206, Olympia, WA 98504, on January 24, 2013, at 9:30 a.m.

     Date of Intended Adoption: January 24, 2013.

     Submit Written Comments to: Nancy Krier, 711 Capitol Way, Room 206, Olympia, WA 98504, e-mail nancy.krier@pdc.wa.gov, fax (360) 753-1112, by December 31, 2012.

     Assistance for Persons with Disabilities: Contact Jana Greer by e-mail at jana.greer@pdc.wa.gov, (360) 586-0544 or (360) 753-1111.

     Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: The PDC implements and enforces chapter 42.17A RCW (formerly codified at chapter 42.17 RCW). The PDC is authorized to impose civil penalties for violations of chapter 42.17/42.17A RCW.

     In assessing a penalty in an enforcement case, the commission has historically and informally taken into consideration various factors or information during the adjudicative proceeding (hearing) on the alleged violations. Those factors have included, for example, comparable penalties assessed in similar cases, cooperation by the respondent, information on prior violations or previously suspended penalties, data (amount of money not disclosed, number of days reports are late, etc.) and similar information. To date, those factors have not been described in a rule. However, in brief adjudicative proceedings conducted by a single commissioner, penalties are assessed by using penalty schedules set out in WAC 390-37-155 through 390-37-175. A commissioner presiding in a brief adjudicative proceeding can also suspend a penalty, or refer a case to the full commission.

     This new rule will describe factors the commission may consider in assessing penalties in enforcement cases, including factors it may take into account when the commission considers suspending penalties or in accepting stipulated penalties.

     This new rule will also provide factors a single commissioner may consider in suspending penalties in brief adjudicative proceedings, or in referring a case to the full commission.

     Reasons Supporting Proposal: This new rule will provide guidance and information to parties in enforcement cases, and to the public, with respect to the penalties that the commission may assess for violations of chapter 42.17/42.17A RCW.

     Statutory Authority for Adoption: RCW 42.17A.110, 42.17A.755.

     Statute Being Implemented: Chapter 42.17A 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: This rule should result in no increased costs to the agency.

     Name of Proponent: PDC, governmental.

     Name of Agency Personnel Responsible for Drafting: Nancy Krier, 711 Capitol Way, Room 206, Olympia, WA 98504, (360) 753-1980; Implementation and Enforcement: Andrea McNamara Doyle, 711 Capitol Way, Room 206, Olympia, WA 98504, (360) 753-1111.

     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 business. The PDC is not subject to the requirement to prepare a school district fiscal impact statement, per RCW 28A.305.135 and 34.05.320.

     A cost-benefit analysis is not required under RCW 34.05.328. The PDC is not an agency listed in RCW 34.05.328 (5)(a)(i). Further, the PDC does not voluntarily make that section applicable to the adoption of these rules pursuant to subsection (5)(a)(ii), and to date, the joint administrative rules review committee has not made the section applicable to the adoption of these rules.

December 10, 2012

Nancy Krier

General Counsel



[NEW SECTION]WAC 390-37-182   Penalty factors.   (1) In assessing a penalty, the commission considers the purposes of RCW 42.17A, including the public's right to know of the financing of political campaigns, lobbying and the financial affairs of elected officials and candidates as declared in the policy of RCW 42.17A.001; and, promoting compliance with the law. The commission also considers and applies RCW 42.17A.755 and may consider any of the additional factors described in (3).

     (2) Under RCW 42.17A.755, the commission:

     (a) May waive a penalty for a first-time violation;

     (b) Shall assess a penalty for a second violation of the same rule by the same person or individual, regardless if the person or individual committed the violation for a different political committee;

     (c) Shall assess successively increased penalties for succeeding violations of the same rule.

     (3) In addition to the requirements of RCW 42.17A.755, the commission may consider the nature of the violation and any relevant circumstances, including the following factors:

     (a) The respondent's compliance history, including whether the non-compliance was isolated or limited in nature, indicative of systematic or on-going problems, or part of a pattern of violations by the respondent;

     (b) The impact on the public, including whether the non-compliance deprived the public of timely or accurate information during a time-sensitive period;

     (c) Sophistication of respondent, or respondent's organization, or size of campaign;

     (d) Amount of financial activity during statement period or election cycle;

     (e) Whether the non-compliance resulted from a knowing or intentional effort to conceal, deceive or mislead, or violate the law;

     (f) Whether the late or unreported activity was significant in amount or duration under the circumstances;

     (g) Whether the respondent or anyone else benefitted economically from the non-compliance;

     (h) Personal emergency or illness of the respondent or member of his or her immediate family;

     (i) Other emergencies such as fire, flood, or utility failure preventing filing;

     (j) Commission staff or equipment error, including technical problems at the agency preventing or delaying electronic filing;

     (k) Corrective action or other remedial measures initiated by respondent prior to enforcement action, or promptly taken when non-compliance brought to respondent's attention (e.g., filing missing reports, amending incomplete or inaccurate reports, returning prohibited or overlimit contributions);

     (l) Whether the respondent is a first-time filer;

     (m) Good faith efforts to comply, including consultation with commission staff prior to initiation of enforcement action and cooperation with commission staff during enforcement action;

     (n) Penalties imposed in factually similar cases; and,

     (o) Other factors relevant to a particular case.

     (4) The commission, and the presiding officer in brief adjudicative proceedings, may consider the factors in (1) - (3) in determining whether to suspend a portion or all of a penalty upon identified conditions, and whether to accept, reject, or modify a stipulated penalty amount recommended by the parties.

     (5) The presiding officer in brief adjudicative proceedings may consider whether any of the factors in (1) - (3) are factors that warrant directing a case to the full commission.

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     Reviser's note: The bracketed material preceding the section above was supplied by the code reviser's office.