WSR 15-17-133 PROPOSED RULES PUBLIC DISCLOSURE COMMISSION [Filed August 19, 2015, 11:38 a.m.]
Original Notice.
Preproposal statement of inquiry was filed as WSR 15-09-101.
Title of Rule and Other Identifying Information: Proposed new rules: WAC 390-37-055 Alternatives to adjudicative proceedings in response to noncompliance, 390-37-056 Alternative responses to noncompliance—Goals and objectives—Factors to be considered, 390-37-057 Notices of correction—process, and 390-37-058 Deferred enforcement—Process.
Proposed amended rules: WAC 390-37-010 Enforcement procedures—General, 390-37-050 Enforcement procedures—Respondent's notice of complaint, 390-37-060 Enforcement procedures—Alternative responses to noncompliance—Investigation of complaints—Initiation of hearing (adjudicative proceeding), 390-37-070 Enforcement procedures—Complaints dismissed by executive director, 390-37-090 Informal settlement—Cases resolvable by stipulation prior to an enforcement hearing (adjudicative proceeding), or by other alternative dispute mechanisms, 390-37-103 Commission options following receipt of a staff report on alleged violations, 390-37-140 Brief enforcement hearings (adjudicative proceedings)—Authority, 390-37-142 Brief enforcement hearings (adjudicative proceeding)—Procedure, 390-37-155 Electronic filing brief enforcement hearing penalty schedule, 390-37-160 Statement of financial affairs (F-1) penalty schedule, 390-37-165 Candidate registration statement (C-1) candidate statement of financial affairs (F-1) penalty schedule, 390-37-170 Lobbyist monthly expense report (L-2) penalty schedule, 390-37-175 Lobbyist employer report (L-3) penalty schedule, 390-37-182 Penalty factors, and 390-32-030 Complaint publication—Fair Campaign Practices Code—Alternative to investigation or adjudicative proceeding.
Hearing Location(s): 711 Capitol Way, Room 206, Olympia, WA, on September 24, 2015, at 9:30 a.m.
Date of Intended Adoption: September 24, 2015.
Submit Written Comments to: Lori Anderson, P.O. Box 40908, Olympia, WA 98504-0908 (mail), 711 Capitol Way, Room 206, Olympia, WA (physical), e-mail lori.anderson@pdc.wa.gov, fax (360) 753-1112, by September 16, 2015.
Assistance for Persons with Disabilities: Contact Jana Greer by phone (360) 586-0544.
Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: Proposed new and amended rules will establish alternatives to adjudicative proceedings for enforcing chapter 42.17A RCW and Title 390 WAC. The proposed alternatives are intended to provide customer friendly, effective, and efficient options for resolving minor violations of laws and rules. Proposals adjust the penalty authority for brief adjudicative hearings from $500 to $1,000 and increase the penalty schedules for brief adjudicative hearings.
Reasons Supporting Proposal: The commission believes these alternatives (1) allow for speedier resolution for a majority of the complaints received than current rules provide; (2) afford the commission enforcement options to resolve minor noncompliance that does not warrant a formal investigation or for which conducting an enforcement hearing is an unnecessary or inefficient use of public resources; and (3) establish consequences for persons who commit minor violations of law or rule which do not merit significant penalties. Increasing the penalty authority for brief adjudicative hearings expands the commission's capacity to use brief adjudicative procedures.
Statutory Authority for Adoption: RCW 42.17A.110(1).
Statute Being Implemented: RCW 42.17A.105(8).
Agency Comments or Recommendations, if any, as to Statutory Language, Implementation, Enforcement, and Fiscal Matters: No increased costs to the agency are expected.
Name of Agency Personnel Responsible for Drafting, Implementation, and Enforcement: Tony Perkins, 711 Capitol Way, Room 206, Olympia, WA 98504, (306) 586-1042.
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. The public disclosure commission (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 subsection (5)(a)(i) of RCW 34.05.328. 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.
August 17, 2015
Lori Anderson
Communications and
Training Officer
AMENDATORY SECTION (Amending WSR 85-22-029, filed 10/31/85)
WAC 390-32-030 Complaint((s)) publication—Fair Campaign Practices Code—Alternative to investigation or adjudicative proceeding.
(1) Written and signed complaints alleging a violation of one or more specific provisions of ((the Fair Campaign Practices Code for candidates and political committees (WAC 390-32-010))) WAC 390-32-010. The Fair Campaign Practices Code may be submitted to the ((public disclosure)) commission by any person.
(((2) Upon)) (a) Subject to the limitations in subsection (4) of this section, upon receipt of a complaint under subsection (1) of this section, the executive director shall forward a copy of the complaint to the ((complainee)) respondent within twenty-four hours, accompanied by a request for a response to the complaint returned within five days from the date of mailing.
(((3))) (b) Upon receipt of ((the complainee's)) any response, the executive director shall forward a copy of the response to the complainant. A copy of the complaint and the response shall be sent to news media at the expiration of the five days for response. The complaint and the response shall be available at the commission office for public inspection and copying. If ((the complainee does not respond)) no response is received within five days, the complaint shall be made public without a response.
(c) The commission will not issue comments or opinions about complaints or responses received under this subsection.
(2) As provided by WAC 390-37-055, and considering the factors set forth in WAC 390-37-056, the executive director may authorize the processing of a complaint alleging violations of chapter 42.17A RCW or Title 390 WAC according to the complaint publication process provided in this section.
(a) Subject to the limitations in subsection (4) of this section, upon receipt of a complaint authorized by the executive director for processing under this subsection, the executive director shall forward a copy of the complaint to the respondent, accompanied by a request for a response to the complaint to be returned within five days from the date of mailing.
(b) Complaints authorized by the executive director for processing under this subsection shall be forwarded to the respondent within ten business days of receipt, or eight days prior to the date that ballots must be available under RCW 29A.40.070(1), whichever is earlier.
(c) Upon receipt of any response, the executive director shall forward a copy of the response to the complainant. A copy of the complaint and the response shall be sent to news media at the expiration of the five days for response. The complaint and the response shall be available at the commission office for public inspection and copying. If no response is received within five days, the complaint shall be made public without a response.
(d) Except as provided under (a) or (b) of this subsection, the publication of complaints or responses under this subsection shall constitute the final disposition of complaints authorized by the executive director for processing under this section.
(3) Following the processing of a complaint under subsection (2) of this section, the executive director shall review the complaint and any response received. Whenever a complaint and response indicate that a material violation of chapter 42.17A RCW may have occurred and/or the respondent may not be in substantial compliance with the relevant statutes and rules, considering the factors set forth in WAC 390-37-056, the executive director may:
(a) Dispose of the complaint through an additional alternative response as provided in WAC 390-37-055; or
(b) Direct a formal investigation be conducted.
(4) The commission will make no attempt to secure a reply to and will make no public release of complaints received within eight days of ((an election)) the date that ballots must be mailed to voters under RCW 29A.40.070(1).
(5) ((The commission will not issue comments or opinions about complaints or responses.
(6) In the absence of any contrary intention as expressed by the complainant,)) The filing of a complaint with the commission under this section or any provision of chapter 390-37 WAC constitutes implied consent to have the complainant's identity disclosed.
AMENDATORY SECTION (Amending WSR 12-03-002, filed 1/4/12, effective 2/4/12)
WAC 390-37-010 Enforcement procedures—General.
This chapter provides the procedures for adjudicative proceedings (enforcement hearings) in compliance cases under the commission's jurisdiction. The procedures are also governed by RCW 42.17A.755, and the adjudicative proceedings provisions of chapter 34.05 RCW. Unless they differ or are otherwise specifically addressed in this chapter, the procedure, are supplemented by the model rules of procedure in chapter 10-08 WAC. In lieu of holding an adjudicative proceeding or issuing an order as a result of such a proceeding, the commission may refer the matter to the attorney general or other law enforcement agency pursuant to RCW 42.17A.105(5) and 42.17A.755.
In addition, the procedures for requesting a hearing on a petition to modify or suspend reporting requirements are provided in RCW 42.17A.120 and chapters 390-24 and 390-28 WAC.
The policy of the commission ((shall be)) is to facilitate the resolution of compliance matters in a fair and expeditious manner. The commission encourages the parties to consider alternative resolution or partial resolution procedures ((such as stipulations under WAC)) as set forth in WAC 390-37-057, 390-37-058, or 390-37-090, when appropriate. Informal settlements are encouraged by RCW 34.05.060.
AMENDATORY SECTION (Amending WSR 03-22-065, filed 11/4/03, effective 12/5/03)
WAC 390-37-050 Enforcement procedures—Respondent's notice of complaint.
Within ten business days of receipt by the commission of a complaint which on its face appears to have merit, the commission shall notify the respondent that a complaint has been filed. The notice shall set forth the nature of the complaint and its origin (citizen complaint, commission or other) and the statutory provision alleged to have been violated. If commission staff has issued an alternative response to the alleged violation as provided by this chapter, the notice shall also describe that response, including any conditions the respondent is required to meet.
AMENDATORY SECTION (Amending WSR 12-18-015, filed 8/24/12, effective 9/24/12)
WAC 390-37-060 Enforcement procedures—Alternative responses to noncompliance—Investigation of complaints—Initiation of ((hearing ())adjudicative proceeding(())).
(1) Upon receipt of a complaint the following will occur:
(a) The executive director will conduct an initial review of the complaint to determine if it is obviously unfounded or frivolous or appears on its face to have merit. An initial review is a preliminary investigation to determine if there is sufficient ground indicating that a material violation of chapter 42.17A RCW may have occurred ((and/))or the respondent may not be in substantial compliance with the relevant statutes and rules.
(b) Whenever an initial review of a complaint indicates that a material violation of chapter 42.17A RCW may have occurred ((and/))or the respondent may not be in substantial compliance with the relevant statutes and rules, the executive director may ((direct a formal investigation be conducted.
(c))):
(i) Resolve the complaint through an alternative response as provided in WAC 390-37-055; or
(ii) Direct a formal investigation be conducted.
(2) If the executive director determines a formal investigation will require the expenditure of substantial resources, the executive director may request review and concurrence by the commission before proceeding.
(((2))) (3) The executive director shall initiate an adjudicative proceeding or provide a report to the commission whenever ((an)) a formal investigation reveals facts that the executive director has reason to believe are a material violation of chapter 42.17A RCW and do not constitute substantial compliance.
(((3))) (4) The respondent and complainant shall be notified of the date of the adjudicative proceeding or a report on an enforcement matter 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)), the staff investigative report, and any charges to be adjudicated. The notice, whenever possible, will be delivered electronically.
(((4))) (5) 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 42.56.240(1).
(a) The records are exempt until:
(i) ((The enforcement matter is scheduled for an adjudicative proceeding;
(ii) After receiving a report on an enforcement matter, the commission accepts the investigation as complete and moves the matter forward to an adjudicative proceeding, or dismisses the complaint, or refers the matter to law enforcement authorities under RCW 42.17A.105 or 42.17A.755(3);
(iii) The commission or chair concur in a dismissal by the executive director; or
(iv) The commission or executive director otherwise finally disposes of the complaint.)) A final staff investigative report is submitted; or
(ii) The executive director issues a final disposition of the complaint through an alternative response as provided in this section.
(b) Without waiving any exemptions from public disclosure that are otherwise available for pending investigations, the commission may make public:
(i) A copy of a complaint filed with or submitted to the commission, including any attachments; and
(ii) Materials concerning an enforcement matter that are placed on the commission's web site with a commission meeting agenda.
(c) If a request is made for any such record that implicates the privacy of an individual as defined in RCW 42.56.050, written notice of the records request may be provided to the individual in order that such individual may request a protective order from a court under RCW 42.56.540.
(d) Certain documents provided to the commission shall be returned to candidates, campaigns, or political committees as required by RCW 42.17A.105 within seven calendar days of the commission's final action upon completion of an audit or field investigation.
AMENDATORY SECTION (Amending WSR 12-03-002, filed 1/4/12, effective 2/4/12)
WAC 390-37-070 Enforcement procedures—Complaints dismissed by executive director.
The executive director, ((with the concurrence of the chair or the chair's designee,)) at any time prior to consideration by the commission, may dismiss a complaint which on its face, or as shown by investigation, does not show reason to believe that a material violation of the sections of chapter 42.17A RCW that are enforced by the commission has occurred ((and/or)), shows that the respondent is in substantial compliance with the relevant statutes or rules, or shows that formal enforcement action is not warranted.
The dismissal may occur:
(1) Following an initial review, through an alternative response authorized by the executive director as provided by WAC 390-37-060; or
(2) Following a formal investigation, with the concurrence of the chair or the chair's designee.
AMENDATORY SECTION (Amending WSR 06-14-057, filed 6/29/06, effective 7/30/06)
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. Any stipulation to facts ((and)), violations, or penalty shall be provided ((prior to or at the hearing. Stipulations to penalty shall be provided)) by 4:00 p.m. ((the)) three business days preceding the hearing. 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.
AMENDATORY SECTION (Amending WSR 12-01-047, filed 12/14/11, effective 1/14/12)
WAC 390-37-103 Commission options following receipt of a staff report on alleged violations.
Upon receipt of a staff report concerning alleged violations of those sections of chapter 42.17A RCW that the commission enforces, the commission may:
(1) Schedule the matter for a hearing (adjudicative proceeding); or
(2) Issue an order; or
(3) Direct the executive director to issue an alternative response as provided in WAC 390-37-060; or
(4) Refer the matter or apparent violations to the attorney general or other enforcement agency pursuant to RCW 42.17A.105(5) and 42.17A.750.
AMENDATORY SECTION (Amending WSR 12-03-002, filed 1/4/12, effective 2/4/12)
WAC 390-37-140 Brief enforcement hearings (adjudicative proceedings)—Authority.
(1) The commission may provide a brief adjudicative proceeding for violations of the sections of chapter 42.17A RCW that it enforces in which the facts are undisputed, the violations appear to be relatively minor in nature, and a penalty no greater than $((500)) 1,000 will be assessed for the violations. Typical matters to be heard in a brief adjudicative proceeding include, but are not limited to, the following:
(a) Failure to file or late filing of required reports((,));
(b) Failure to report or accurately report campaign contributions or expenditures or funds spent in lobbying((,));
(c) Use of public office facilities in election campaigns when the value of public funds expended was minimal((,));
(d) Infractions of political advertising law regarding sponsor identification or political party identification.
(2) The commission may utilize a penalty schedule for brief adjudicative proceedings.
(3) Brief adjudicative proceedings are set forth in RCW 34.05.482 through 34.05.494.
AMENDATORY SECTION (Amending WSR 03-22-065, filed 11/4/03, effective 12/5/03)
WAC 390-37-142 Brief enforcement hearing (adjudicative proceeding)—Procedure.
(1) A brief adjudicative proceeding may be presided over by the chair, or a member of the commission designated by the chair.
(2) When a violation, as described in WAC 390-37-140, is alleged, before taking action, the executive director shall send the alleged violator notice, which shall include:
(a) Alleged violation;
(b) The maximum amount of the penalty that can be imposed at the hearing, relevant penalty schedules, and the amount of any proposed fine; and
(c) Person's right to respond either in writing or in person to explain his/her view of the matter.
(3) As provided in RCW 34.05.050, a respondent who has been notified of a brief adjudicative proceeding may waive the hearing by providing the following prior to the hearing:
(a) A signed statement of understanding;
(b) Any missing required reports; and
(c) A penalty payment specified by the executive director in accordance with the penalty authority of WAC 390-37-140 and the brief enforcement hearing penalty schedules of this chapter.
(4) As used in this section, the term "statement of understanding" means a written statement signed by the respondent that:
(a) Acknowledges a violation of chapter 42.17A RCW and any relevant rules; and
(b) Expresses the respondent's understanding that the commission will not hold any adjudicative proceeding concerning the violation.
(5) At the time of the hearing if the presiding officer believes alleged violations are of such magnitude as to merit penalties greater than $((500)) 1,000, the presiding officer shall immediately adjourn the hearing and direct the matter be scheduled for an adjudicative proceeding by the full commission.
(((4))) (6) At the time any unfavorable action is taken, within ten business days the presiding officer shall serve upon each party a written statement describing the violation, the reasons for the decision, the penalty imposed, and their right to request review by the commission. The executive director is authorized to sign the decision on behalf of the presiding officer.
(((5))) (7) The written decision of the presiding officer is an initial order. If no review is taken of the initial order, the initial order shall be the final order.
AMENDATORY SECTION (Amending WSR 03-22-065, filed 11/4/03, effective 12/5/03)
WAC 390-37-155 Electronic filing brief enforcement hearing penalty schedule.
Provisos:
(1) The presiding officer has authority to suspend all or a portion of relevant penalty under the conditions to be determined by that officer including, but not limited to, payment of the nonsuspended portion of the penalty within five business days of the date of entry of the order in that case.
(2) If on the 3rd occasion, a filer has outstanding penalties or judgments, the matter will be taken to the full commission for consideration.
(3) The presiding officer may direct a matter to the full commission if the officer believes ((five hundred)) one thousand dollars would be an insufficient penalty or the matter warrants consideration by the full commission.
(4) If previously imposed penalties remain unpaid and exceed the amount this penalty schedule would otherwise prescribe for the current violation, the presiding officer may impose a penalty not to exceed the amount of the outstanding penalty, up to ((five hundred)) one thousand dollars.
(5) "Occasion" means established violation. At the 4th occasion, among other factors, the commission may consider if any prior violations and penalties were stipulated to by the respondent, in determining the amount of the penalty.
AMENDATORY SECTION (Amending WSR 05-04-038, filed 1/27/05, effective 2/27/05)
WAC 390-37-160 Statement of financial affairs (F-1) penalty schedule.
Provisos:
(1) The presiding officer has authority to suspend all or a portion of relevant penalty under the conditions to be determined by that officer including, but not limited to, payment of the nonsuspended portion of the penalty within five business days of the date of entry of the order in that case.
(2) If on the 3rd occasion, a filer has outstanding penalties or judgments, the matter will be taken to the full commission for consideration.
(3) The presiding officer may direct a matter to the full commission if the officer believes ((five hundred)) one thousand dollars would be an insufficient penalty or the matter warrants consideration by the full commission.
(4) If previously imposed penalties remain unpaid and exceed the amount this penalty schedule would otherwise prescribe for the current violation, the presiding officer may impose a penalty not to exceed the amount of the outstanding penalty, up to ((five hundred)) one thousand dollars.
(5) "Occasion" means established violation. At the 4th occasion, among other factors, the commission may consider if any prior violations and penalties were stipulated to by the respondent, in determining the amount of the penalty.
(6) Cases will automatically be scheduled before the full Commission for an enforcement action when the person:
(a) Was found in violation during a previous reporting period((,));
(b) The violation remains in effect following any appeals((,)); and
(c) The person has not filed the disclosure forms that were the subject of the prior violation at the time the current hearing notice is being sent.
AMENDATORY SECTION (Amending WSR 05-04-038, filed 1/27/05, effective 2/27/05)
WAC 390-37-165 Candidate registration statement (C-1)/candidate statement of financial affairs (F-1) penalty schedule.
Provisos:
(1) The presiding officer has authority to suspend all or a portion of relevant penalty under the conditions to be determined by that officer.
(2) If on the 3rd occasion, a filer has outstanding penalties or judgments, the matter will be taken to the full commission for consideration including, but not limited to, payment of the nonsuspended portion of the penalty within five business days of the date of entry of the order in that case.
(3) The presiding officer may direct a matter to the full commission if the officer believes ((five hundred)) one thousand dollars would be an insufficient penalty or the matter warrants consideration by the full commission.
(4) If previously imposed penalties remain unpaid and exceed the amount this penalty schedule would otherwise prescribe for the current violation, the presiding officer may impose a penalty not to exceed the amount of the outstanding penalty, up to ((five hundred)) one thousand dollars.
(5) "Occasion" means established violation. At the 4th occasion, among other factors, the commission may consider if any prior violations and penalties were stipulated to by the respondent, in determining the amount of the penalty.
(6) Cases will automatically be scheduled before the full Commission for an enforcement action when the person:
(a) Was found in violation during a previous reporting period((,));
(b) The violation remains in effect following any appeals((,)); and
(c) The person has not filed the disclosure forms that were the subject of the prior violation at the time the current hearing notice is being sent.
AMENDATORY SECTION (Amending WSR 05-04-038, filed 1/27/05, effective 2/27/05)
WAC 390-37-170 Lobbyist monthly expense report (L-2) penalty schedule.
Provisos:
(1) The presiding officer has authority to suspend all or a portion of relevant penalty under the conditions to be determined by that officer including, but not limited to, payment of the nonsuspended portion of the penalty within five business days of the date of entry of the order in that case. Except in rare circumstances, the nonsuspended portion of the penalty will not be less than the original settlement offer.
(2) If on the 3rd occasion, a filer has outstanding penalties or judgments, the matter will be taken to the full commission for consideration.
(3) The presiding officer may direct a matter to the full commission if the officer believes ((five hundred)) one thousand dollars would be an insufficient penalty or the matter warrants consideration by the full commission.
(4) If previously imposed penalties remain unpaid and exceed the amount this penalty schedule would otherwise prescribe for the current violation, the presiding officer may impose a penalty not to exceed the amount of the outstanding penalty, up to ((five hundred)) one thousand dollars.
(5) "Occasion" means established violation. At the 4th occasion, among other factors, the commission may consider if any prior violations and penalties were stipulated to by the respondent, in determining the amount of the penalty.
(6) Cases will automatically be scheduled before the full Commission for an enforcement action when the person:
(a) Was found in violation during a previous reporting period((,));
(b) The violation remains in effect following any appeals((,)); and
(c) The person has not filed the disclosure forms that were the subject of the prior violation at the time the current hearing notice is being sent.
AMENDATORY SECTION (Amending WSR 05-04-038, filed 1/27/05, effective 2/27/05)
WAC 390-37-175 Lobbyist employer report (L-3) penalty schedule.
Provisos:
(1) The presiding officer has authority to suspend all or a portion of relevant penalty under the conditions to be determined by that officer including, but not limited to, payment of the nonsuspended portion of the penalty within five business days of the date of entry of the order in that case.
(2) If on the 3rd occasion, a filer has outstanding penalties or judgments, the matter will be taken to the full commission for consideration.
(3) The presiding officer may direct a matter to the full commission if the officer believes ((five hundred)) one thousand dollars would be an insufficient penalty or the matter warrants consideration by the full commission.
(4) If previously imposed penalties remain unpaid and exceed the amount this penalty schedule would otherwise prescribe for the current violation, the presiding officer may impose a penalty not to exceed the amount of the outstanding penalty, up to ((five hundred)) one thousand dollars.
(5) "Occasion" means established violation. At the 4th occasion, among other factors, the commission may consider if any prior violations and penalties were stipulated to by the respondent, in determining the amount of the penalty.
(6) Cases will automatically be scheduled before the full Commission for an enforcement action when the person:
(a) Was found in violation during a previous reporting period((,));
(b) The violation remains in effect following any appeals((,)); and
(c) The person has not filed the disclosure forms that were the subject of the prior violation at the time the current hearing notice is being sent.
AMENDATORY SECTION (Amending WSR 13-05-014, filed 2/7/13, effective 3/10/13)
WAC 390-37-182 Penalty factors.
(1) In assessing a penalty, the commission considers the purposes of chapter 42.17A RCW, 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 subsection (3) of this section.
(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 noncompliance was isolated or limited in nature, indicative of systematic or ((on-going)) ongoing problems, or part of a pattern of violations by the respondent, or in the case of a political committee or other entity, part of a pattern of violations by the respondent's officers, staff, principal decision makers, consultants, or sponsoring organization;
(b) The impact on the public, including whether the noncompliance deprived the public of timely or accurate information during a time-sensitive period, or otherwise had a significant or material impact on the public;
(c) Sophistication of respondent((, or respondent's organization, or size of campaign)) or the financing, staffing, or size of the respondent's campaign or organization;
(d) Amount of financial activity by the respondent during the statement period or election cycle;
(e) Whether the noncompliance resulted from a knowing or intentional effort to conceal, deceive or mislead, or violate the law or rule, or from collusive behavior;
(f) Whether the late or unreported activity was significant in amount or duration under the circumstances, including in proportion to the total amount of expenditures by the respondent in the campaign or statement period;
(g) Whether the respondent or ((anyone else benefitted)) any person, including an entity or organization, benefited politically or economically from the noncompliance;
(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) The respondent's demonstrated good-faith uncertainty concerning staff guidance or instructions;
(l) Corrective action or other remedial measures initiated by respondent prior to enforcement action, or promptly taken when noncompliance brought to respondent's attention (e.g., filing missing reports, amending incomplete or inaccurate reports, returning prohibited or overlimit contributions);
(((l))) (m) Whether the respondent is a first-time filer;
(((m))) (n) Good faith efforts to comply, including consultation with commission staff prior to initiation of enforcement action and cooperation with commission staff during enforcement action, and a demonstrated wish to acknowledge and take responsibility for the violation;
(((n))) (o) Penalties imposed in factually similar cases; and((,
(o))) (p) 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))) subsections (1) through (3) of this section 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))) subsections (1) through (3) of this section are factors that warrant directing a case to the full commission.
AMENDATORY SECTION (Amending WSR 12-03-002, filed 1/4/12, effective 2/4/12)
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. The presiding officer has the discretion to allow comment by a person other than the respondent during the consideration of a complaint by the commission. Any person who wishes to comment should notify staff at least three business days before the 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 42.17A.765(4).
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WAC 390-37-055 Alternatives to adjudicative proceedings in response to noncompliance.
(1) Considering the factors set forth in WAC 390-37-056(3), the executive director may authorize an alternative response to noncompliance in lieu of a formal investigation, adjudicative proceeding, or both.
(2) Alternative responses to noncompliance authorized under this section include:
(a) Technical assistance, including assistance in filing or correcting required reports;
(b) Formal written warnings;
(c) Notices of correction as provided in WAC 390-37-057;
(d) Deferred enforcement as outlined in WAC 390-37-058; and
(e) The complaint publication and review process provided in WAC 390-32-030.
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WAC 390-37-056 Alternative responses to noncompliance—Goals and objectives—Factors to be considered.
(1) In considering appropriate responses to noncompliance with chapter 42.17A RCW or Title 390 WAC, the commission considers whether a formal investigation or adjudicative proceeding constitutes an efficient and effective use of public funds; or whether an alternative response better meets the commission's mission and public expectations by allowing the expedited resolution of minor complaints, and the focusing of staff and commission resources on major alleged violations of chapter 42.17A RCW and Title 390 WAC.
(2) In authorizing an alternative response to noncompliance for minor violations as provided by WAC 390-37-055, the executive director may consider the nature of the alleged violation and any relevant circumstances including, but not limited to, the factors described in subsection (3) of this section: Provided, That, if after weighing the relevant circumstances and factors, the executive director determines that there is evidence of complex or significant violations, the allegations shall be addressed through a formal investigation as provided by WAC 390-37-060.
(3) The factors the executive director may consider in authorizing an alternative response to noncompliance, a formal investigation, or an adjudicative proceeding include, but are not limited to:
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WAC 390-37-057 Notices of correction—Process.
(1) As provided by WAC 390-37-055, and considering the factors set forth in WAC 390-37-056(3), following an initial review of a complaint under WAC 390-37-060, the executive director may authorize a notice of correction as an alternative response to noncompliance in lieu of a formal investigation.
(2) A notice of correction recites available facts and information from staff's review of a complaint, confirms staff's determination that the respondent is not in substantial compliance with the relevant statutes and rules, and states the necessary corrective action(s) the respondent has taken or agrees to take. If the corrective action is completed, no further response to the complaint is necessary and staff may close the complaint.
(3) If the corrective action is not completed, the executive director may direct a formal investigation be conducted as provided in WAC 390-37-060.
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WAC 390-37-058 Deferred enforcement—Process.
(1) As provided by WAC 390-37-055, and considering the factors set forth in WAC 390-37-056(3), the executive director may authorize deferred enforcement as an alternative response to noncompliance in lieu of a formal investigation, adjudicative proceeding, or both.
(2) The executive director may authorize deferred enforcement:
(a) Following an initial review of a complaint, when minor or technical violations by the respondent are readily apparent; or
(b) Following a formal investigation, in lieu of a notice of administrative charges for an adjudicative proceeding; or
(c) After a notice of administrative charges, prior to an adjudicative proceeding.
(3) The conditions of deferred enforcement shall be clearly defined and agreed to by the respondent, along with the consequences for failure to meet the conditions of the deferral. Negotiations regarding deferred enforcement shall be informal and without prejudice to rights of a participant in the negotiations.
(4) With an agreement between the respondent and commission staff, the executive director or designee (commission staff) shall memorialize the pertinent facts and the conditions of the deferral in writing to the respondent, together with the consequences for failure to meet the conditions of the deferral. The agreement shall be signed by staff and the respondent. Staff shall notify the respondent that any administrative charges issued in the matter are stayed pending satisfaction of the deferral conditions.
(5) Once the deferral conditions are met, the complaint shall be dismissed with no further investigation or action as provided by WAC 390-37-070.
(6) If the deferral conditions are not met, the complaint shall proceed in accordance with WAC 390-37-060.
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