WSR 03-19-053

PROPOSED RULES

PUBLIC DISCLOSURE COMMISSION


[ Filed September 11, 2003, 8:35 a.m. ]

     Original Notice.

     Preproposal statement of inquiry was filed as WSR 03-13-104.

     Title of Rule: Chapter 390-37 WAC, Enforcement procedures -- Investigative hearings.

     Purpose: Updating Public Disclosure Commission (PDC) enforcement hearing (adjudicative proceeding) rules.

     Statutory Authority for Adoption: RCW 42.17.370(1).

     Statute Being Implemented: RCW 42.17.350-42.17.471.

     Summary: The proposed rule amendments address the current Administrative Procedure Act at chapter 34.05 RCW, more closely reflect current practices, and address case law.

     Reasons Supporting Proposal: The rule amendments will provide guidance to the public as well as explain and clarify current practices during adjudicative proceedings.

     Name of Agency Personnel Responsible for Drafting and Implementation: Doug Ellis, Public Disclosure Commission, 711 Capitol Way, Room 206, Olympia, (360) 664-2735; and Enforcement: Phil Stutzman, Public Disclosure Commission, 711 Capitol Way, Room 206, Olympia, (360) 664-8853.

     Name of Proponent: Public Disclosure Commission (PDC), governmental.

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

     Explanation of Rule, its Purpose, and Anticipated Effects: The proposed rule amendments address the current Administrative Procedure Act at chapter 34.05 RCW, more closely reflect current practices, and address case law.

     Proposal Changes the Following Existing Rules: The proposed rule change would update the PDC enforcement hearing (adjudicative proceedings) rules, chapter 390-37 WAC.

     No small business economic impact statement has been prepared under chapter 19.85 RCW. The implementation of this rule does not impact small businesses.

     RCW 34.05.328 does not apply to this rule adoption. 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)(ii) of section 201, and to date JARRC has not made section 201 applicable to this rule adoption.

     Hearing Location: Commission Hearing Room, Evergreen Plaza Building, 711 Capitol Way, Room 206, Olympia, WA, on October 28, 2003, at 9:00 a.m.

     Assistance for Persons with Disabilities: Contact Ruthann Bryant by phone (360) 753-1111.

     Submit Written Comments to: Doug Ellis, Public Disclosure Commission, P.O. Box 40908, Olympia, WA 98504-0908, dellis@pdc.wa.gov, fax (360) 753-1112, by October 24, 2003.

     Date of Intended Adoption: October 28, 2003.

September 9, 2003

Vicki Rippie

Executive Director

OTS-6619.1

Chapter 390-37 WAC

ENFORCEMENT ((PROCEDURES -- INVESTIGATIVE)) HEARING((S)) (ADJUDICATIVE PROCEEDING) RULES


NEW SECTION
WAC 390-37-001   Enforcement cases -- Jurisdiction.   The commission enforces the sections of chapter 42.17 RCW concerning campaign financing, lobbyist reporting, reporting of public officials' financial affairs, reporting by public treasurers, political advertising, and campaign contribution limitations. The commission does not enforce the public records provisions of chapter 42.17 RCW because RCW 42.17.340 provides for direct review by the superior courts.

[]


AMENDATORY SECTION(Amending Order 79, filed 6/25/76)

WAC 390-37-010   Enforcement procedures -- ((Policy)) General.   ((The commission recognizes the need for published uniform rules setting forth commission policies and procedures for cases in which violations or apparent violations of chapter 42.17 RCW are brought to its attention.)) This chapter provides the procedures for adjudicative proceedings (hearings) in compliance cases under the commission's jurisdiction. The procedures are also governed by RCW 42.17.395, 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 42.17.360(5) and 42.17.395(3).

     In addition, the procedures for requesting a hearing on a petition to modify or suspend reporting requirements are provided in RCW 42.17.370(1) and chapters 390-24 and 390-28 WAC.

     The policy of the commission shall be 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 390-37-090, when appropriate. Informal settlements are encouraged by RCW 34.05.060.

[Order 79, § 390-37-010, filed 6/25/76.]


AMENDATORY SECTION(Amending WSR 02-23-001, filed 11/6/02, effective 12/7/02)

WAC 390-37-030   Enforcement procedures -- ((Status of citizen complainant and others)) 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 when no violation is found, may pursue an appropriate remedy under RCW 42.17.400(4).))

[Statutory Authority: RCW 42.17.370. 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.]


AMENDATORY SECTION(Amending Order 84-03, filed 5/25/84)

WAC 390-37-040   Enforcement procedures -- Procedures for filing ((citizen)) complaints with the commission.   (1) A complaint filed with the commission, relating to an elected official or a candidate for elective office, shall be in writing and signed by the complainant under oath.

     (2) A complaint filed with the commission, other than a complaint specified in subsection (1) of this section, ((may)) shall be made ((informally)) in writing.

     (3) A complaint filed under the provisions of either subsection (1) or (2) of this section ((should)) shall include:

     (a) A statement of the nature of the alleged violation or violations, date, time and place of each occurrence and name of person or persons responsible; ((and))

     (b) All available documentation and other evidence which the complainant is able to supply to demonstrate a reason for believing that a violation of the sections of chapter 42.17 RCW that are enforced by the commission has occurred; and

     (c) The name, address, telephone number, and other contact information for the complainant.

[Statutory Authority: RCW 42.17.370(1). 84-12-017 (Order 84-03), § 390-37-040, filed 5/25/84; Order 79, § 390-37-040, filed 6/25/76.]


NEW SECTION
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 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) Initiate an investigation;

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

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

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

[]


AMENDATORY SECTION(Amending Order 79-03, filed 7/19/79)

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.

[Statutory Authority: RCW 42.17.370(1). 79-08-046 (Order 79-03), § 390-37-050, filed 7/19/79; Order 81, § 390-37-050, filed 7/22/76.]


AMENDATORY SECTION(Amending WSR 93-24-003, filed 11/18/93, effective 12/19/93)

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 ((enforcement hearing)) adjudicative proceeding or provide a report to the commission whenever an investigation reveals facts ((which)) 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 ((hearing)) adjudicative proceeding or other consideration by the commission no later than ten calendar days before that date ((pursuant to WAC 10-08-040)). 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 ((which)) 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. 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.]


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

WAC 390-37-070   Enforcement procedures -- Complaints ((dismissible)) dismissed by executive director.   The executive director, with the concurrence of the chair, 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 42.17 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.

[Statutory Authority: RCW 42.17.390. 94-05-010, § 390-37-070, filed 2/3/94, effective 3/6/94. Statutory Authority: RCW 42.17.370(1). 86-04-071 (Order 86-01), § 390-37-070, filed 2/5/86; 84-12-017 (Order 84-03), § 390-37-070, filed 5/25/84; Order 81, § 390-37-070, filed 7/22/76.]


AMENDATORY SECTION(Amending WSR 91-16-072, filed 8/2/91, effective 9/2/91)

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 ((person whose interest in a)) 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. ((If the executive director requires additional information to resolve the matter informally, the executive director shall promptly provide to the person seeking relief an opportunity to supply such information.)) Settlement negotiations shall be informal and without prejudice to rights of a participant in the negotiations.

     (b) When the executive director and respondent agree ((that some or all of the facts are uncontested, a stipulation of fact shall be prepared for the)) to terms of any stipulation of facts, violations, and/or penalty, commission staff shall prepare the stipulation for presentation to the commission.

     (c) ((In the event an early, informal resolution or stipulation of facts is reached, the executive director is responsible for providing a written description of the recommended resolution or stipulation to the person(s) involved.

     (2)(a) If settlement of an enforcement hearing (adjudicative proceeding) may be accomplished by informal negotiation, negotiations shall be commenced at the earliest possible time. Settlement shall be concluded by:

     (i) Stipulation of facts of the parties; or

     (ii) Stipulation of the parties; or

     (iii) Withdrawal of the application for an enforcement hearing by the applicant; or

     (iv) Withdrawal by the executive director of the action which is the subject matter of the enforcement hearing.

     (b))) 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 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, ((then a hearing shall be held. If the commission requests additional facts be presented, the matter shall be referred to the executive director for further investigation)) 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. 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.]


AMENDATORY SECTION(Amending WSR 91-16-072, filed 8/2/91, effective 9/2/91)

WAC 390-37-100   Enforcement procedures -- Conduct of hearings (adjudicative proceedings).   (1) An enforcement hearing (adjudicative proceeding) shall be conducted pursuant to the Administrative Procedure Act (chapter 34.05 RCW) ((and its supporting regulations (chapter 10-08 WAC), shall be followed unless otherwise modified by)). Chapter 390-37 WAC further governs these proceedings, as supplemented by chapter 10-08 WAC. To the extent chapters 390-37 and 10-08 WAC differ, chapter 390-37 WAC controls.

     (2) An ((enforcement hearing)) adjudicative proceeding shall be heard ((either)) by the commission ((or under RCW 34.12.040 or 34.12.050(2), by a duly designated administrative law judge.

     (3) Upon the conclusion of an enforcement hearing heard by an administrative law judge, the judge shall prepare and present to the commission findings of fact, conclusions of law, and a proposed decision determinative of the matter. A copy of the findings of fact, conclusions of law and the proposed decision shall be served upon the executive director and the respondent. Both the respondent and the executive director shall be afforded an opportunity to file exceptions and written argument with the commission. The commission shall review the proposed decision at its next regular meeting or at a special meeting called for that purpose. The commission shall consider the whole record or such portions as shall be cited by the parties. Oral argument may be heard at the discretion of the commission.

     (4) After either a hearing by the commission or review by the commission of the proposed decision of an administrative law judge)), except for brief adjudicative proceedings which are conducted by the chair or commission designee.

     (3) The commission shall have the authority to:

     (a) Determine the order of presentation of evidence;

     (b) Administer oaths and affirmations;

     (c) Rule on procedural matters, objections, and motions;

     (d) Rule on offers of proof and receive relevant evidence;

     (e) Pursuant to RCW 34.05.449(5), close parts of a hearing to public observation or order the exclusion of witnesses upon a showing of good cause;

     (f) Interrogate witnesses called by the parties in an impartial manner to develop any facts deemed necessary to fairly and adequately decide the matter;

     (g) Take official notice of facts pursuant to RCW 34.05.452(5);

     (h) Regulate the course of the hearing and take any appropriate action necessary to maintain order during the hearing;

     (i) Permit or require oral argument or briefs and determine the time limits for submission thereof;

     (j) Issue an order of default pursuant to RCW 34.05.440;

     (k) Take any other action necessary and authorized by any applicable statute or rule;

     (l) Waive any requirement of these rules unless a party shows that it would be prejudiced by such a waiver; and

     (m) The commission chair or designee may conduct the procedural aspects of the adjudicative proceeding under (a) through (l) of this subsection, unless a majority of members present vote to seek a full commission decision on any particular matter.

     (4) The commission may decide dispositive motions, and any other matters referred to it by the presiding officer at a prehearing conference.

     (5) After an adjudicative proceeding by the commission, the commission may find that:

     (a) Respondent did not violate the act, as alleged, and dismiss the case; or

     (b) Respondent violated chapter 42.17 RCW, as alleged, and determine the sanction, if any, to be imposed; or

     (c) Respondent is in apparent violation of chapter 42.17 RCW, its own ((remedy is)) remedies are inadequate and enter its order referring the matter to the appropriate law enforcement agency as provided in RCW 42.17.360 and 42.17.395.

     (((5))) (6) Upon the conclusion of ((a hearing)) and adjudicative proceeding, the commission:

     (a) Shall set forth in writing its findings of fact, conclusions of law and decision on the merits of the case and enter an order; and

     (b) Shall ((deliver, either in person or by mail, to each respondent or the respondent's representative)) serve the respondent a copy of the findings of fact, conclusions of law and decision and order.

     (((6))) (7) The executive director is authorized to sign orders on behalf of the commission.

     (8) When the commission finds an apparent violation and refers the matter to an enforcement agency, the commission shall give to the respondent written notice of such finding and order of referral.

[Statutory Authority: RCW 42.17.370. 91-16-072, § 390-37-100, filed 8/2/91, effective 9/2/91; 90-16-083, § 390-37-100, filed 7/31/90, effective 8/31/90. Statutory Authority: RCW 42.17.370(1). 86-04-071 (Order 86-01), § 390-37-100, filed 2/5/86; 85-15-020 (Order 85-03), § 390-37-100, filed 7/9/85; 84-12-017 (Order 84-03), § 390-37-100, filed 5/25/84; Order 81, § 390-37-100, filed 7/22/76.]


NEW SECTION
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 42.17 RCW that the commission enforces, the commission may:

     (1) Schedule the matter for a hearing (adjudicative proceeding); or

     (2) Issue an order; or

     (3) In lieu of holding an enforcement hearing (adjudicative proceeding), or issuing an order, refer the matter or apparent violations to the attorney general or other enforcement agency pursuant to RCW 42.17.360(5) and 42.17.395.

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

WAC 390-37-105   Prehearing conference -- Rule.   (1) In any prehearing conference prior to an enforcement hearing (adjudicative proceeding), the chair upon his/her own motion or upon request by one of the parties or their qualified representative, may direct the parties to appear at a specified time and place for a conference to consider:

     (a) ((Simplification of)) Identifying and simplifying issues;

     (b) The necessity of amendments to the hearing notice;

     (c) The possibility of obtaining stipulations, admissions of facts and of documents;

     (d) ((Limitation on)) Limiting the number of witnesses; and

     (e) Procedural and such other matters as may aid in the ((disposition)) conduct of the proceeding.

     (2) Prehearing conferences may be presided over by the chair or his/her designee.

     (3) Prehearing conferences may be held by telephone conference call or at a time and place specified by the presiding officer.

     (4) In a prehearing conference, the presiding officer may hear prehearing motions regarding preliminary matters such as motions in limine, discovery motions, and other similar matters. The presiding officer shall not consider dispositive motions in a prehearing conference and such motions will automatically be scheduled for consideration before the commission.

     (5) Following the prehearing conference, the presiding officer shall issue an order reciting the action taken and decisions made at the conference and the date on which objections to the order are to be filed and served. If no objection to the order is timely filed with the presiding officer ((within seven days after the date the order is mailed)), the order shall control the subsequent course of the proceeding unless modified for good cause by subsequent order.

     (((5))) (6) When the chair or his/her designee presides over a prehearing conference, he or she is acting as a quasi-judicial body which relates to a quasi-judicial matter between named parties. Therefore, a prehearing conference is not subject to chapter 42.30 RCW, Open Public Meetings Act.

[Statutory Authority: RCW 42.17.390. 94-05-010, § 390-37-105, filed 2/3/94, effective 3/6/94. Statutory Authority: RCW 42.17.370. 91-16-072, § 390-37-105, filed 8/2/91, effective 9/2/91.]


AMENDATORY SECTION(Amending WSR 91-16-072, filed 8/2/91, effective 9/2/91)

WAC 390-37-120   Enforcement hearings (adjudicative proceedings) -- Subpoenas -- Discovery -- Hearings.   (1) The commission, or presiding officer, may issue subpoenas for discovery, subpoenas to persons to appear and give testimony, and may require the production of any books, papers, correspondence, memorandums, or other records deemed relevant or material and the commission or presiding officer may issue protective orders as a part of an enforcement hearing. The agency or its legal representative may issue subpoenas as may the attorney of the party against whom action is being taken. Upon request of the commission or presiding officer, all subpoenas must be filed with the commission, together with proof of proper service((, at least five days prior to the date of the hearing for which they are issued)). Such subpoenas will issue and may be enforced in the form and manner set forth in RCW 34.05.446 and WAC 10-08-120(4). The subpoena may be personally delivered or sent by certified mail, return receipt requested.

     (2) The commission, or presiding officer, upon motion or before the time specified in the subpoena for compliance therewith, may:

     (a) Quash or modify the subpoena if it is unreasonable and oppressive; or

     (b) Condition denial of the motion upon the advancement by the person in whose behalf the subpoena is issued of the reasonable cost of producing the books, papers, documents, or tangible things.

     (3) The attendance of witnesses and such production of evidence may be required from any place within the state of Washington to any location where a hearing is being conducted.

[Statutory Authority: RCW 42.17.370. 91-16-072, § 390-37-120, filed 8/2/91, effective 9/2/91.]


AMENDATORY SECTION(Amending WSR 91-16-072, filed 8/2/91, effective 9/2/91)

WAC 390-37-130   Enforcement hearings (adjudicative proceedings) -- Depositions and interrogatories -- Right to take.   Unless otherwise provided, any party may take the testimony of any person, including a party, by deposition upon oral examination or written interrogatories for use as evidence in the hearing. The deposition of a commissioner, the executive director, or assistant director, may only be taken upon application to the commission, for good cause shown, and only in those circumstances where the statements or depositions of other staff members would not reveal the information, evidence, or details needed by the party for the case. The attendance of witnesses to a deposition may be compelled by use of a subpoena. Depositions shall be taken only in accordance with this rule and the rules on subpoenas.

[Statutory Authority: RCW 42.17.370. 91-16-072, § 390-37-130, filed 8/2/91, effective 9/2/91.]


AMENDATORY SECTION(Amending WSR 91-16-072, filed 8/2/91, effective 9/2/91)

WAC 390-37-132   Enforcement hearings (adjudicative proceedings) -- Depositions and interrogatories -- Notice.   A party desiring to take the deposition of any person upon oral examination shall give reasonable notice of not less than seven calendar days in writing to the commission and all parties. The notice shall state the time and place for taking the deposition and the name and address of each person to be examined. On motion of a party to whom the notice is served, the commission or its hearing officer may, for cause shown, enlarge or shorten the time. If the parties so stipulate in writing, depositions may be taken at any time or place, upon any notice, and in any manner and when so taken may be used as other depositions.

[Statutory Authority: RCW 42.17.370. 91-16-072, § 390-37-132, filed 8/2/91, effective 9/2/91.]


AMENDATORY SECTION(Amending WSR 91-16-072, filed 8/2/91, effective 9/2/91)

WAC 390-37-136   Production of documents and use at hearing (adjudicative proceeding).   (1) Upon request by either the agency or its legal representative, or the party against whom the enforcement action is being taken or his/her representative, copies of all materials to be presented at the ((enforcement hearing)) adjudicative proceeding shall be provided to the requester within seven calendar days of the request but, for good cause shown, not less than three business days prior to the date of the hearing.

     (2) When exhibits of a documentary character are to be offered into evidence at the ((hearing)) adjudicative proceeding, the party offering the exhibit shall provide a minimum of ((seven)) ten copies((, one for opposing party, one for each member of the commission, and one for the commission's legal advisor)).

     (3) If documentary evidence has not been exchanged prior to the hearing under subsection (1) of this section, the parties shall arrive at the hearing location in sufficient time before the time scheduled for the ((hearing)) adjudicative proceeding for the purpose of exchanging copies of exhibits to be introduced.

[Statutory Authority: RCW 42.17.370. 91-16-072, § 390-37-136, filed 8/2/91, effective 9/2/91.]


AMENDATORY SECTION(Amending WSR 93-15-004, filed 7/7/93, effective 8/7/93)

WAC 390-37-140   Brief enforcement hearings (adjudicative proceedings) -- Authority.   (1) The commission may provide a brief ((enforcement hearing)) adjudicative proceeding for violations of ((provisions in)) the sections of chapter 42.17 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 will be assessed for the violations. Typical matters to be heard in a brief ((enforcement hearing)) 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) ((A brief enforcement hearing is a)) The commission may utilize a penalty schedule for brief adjudicative proceedings.

     (3) Brief adjudicative proceedings ((as)) are set forth in RCW 34.05.482 through 34.05.494 ((and shall be in accordance with those statutes)).

[Statutory Authority: RCW 42.17.370. 93-15-004, § 390-37-140, filed 7/7/93, effective 8/7/93; 91-16-072, § 390-37-140, filed 8/2/91, effective 9/2/91.]


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

WAC 390-37-142   Brief enforcement hearing (adjudicative proceeding) -- Procedure.   (1) A brief ((enforcement hearing)) 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 ((which)) that can be imposed at the hearing, relevant penalty schedules, and the amount of any proposed fine; and

     (c) Person's right to respond((, within ten days,)) either in writing or in person to explain his/her view of the matter.

     (3) At the time of the hearing if the presiding officer believes alleged violations are of such magnitude as to merit penalties greater than $500, the presiding officer shall immediately adjourn the hearing and direct the matter be scheduled for an ((enforcement hearing)) adjudicative proceeding by the full commission.

     (4) 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 ((at the next scheduled commission meeting)). The executive director is authorized to sign the decision on behalf of the presiding officer.

     (5) 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.

[Statutory Authority: RCW 42.17.390. 94-05-010, § 390-37-142, filed 2/3/94, effective 3/6/94. Statutory Authority: RCW 42.17.370. 93-15-004, § 390-37-142, filed 7/7/93, effective 8/7/93; 91-16-072, § 390-37-142, filed 8/2/91, effective 9/2/91.]


AMENDATORY SECTION(Amending WSR 91-16-072, filed 8/2/91, effective 9/2/91)

WAC 390-37-144   Brief ((enforcement hearing)) adjudicative proceeding -- Administrative review procedures.   (1) The commission shall conduct a review of the initial order upon the written or oral request of a party if the commission receives the request within twenty-one business days after the service of the initial order. "Service" is defined as the date the order was deposited in the U.S. mail per RCW 34.05.010(19), or personally served. The party seeking review shall state the reason for the review, and identify what alleged errors are contained in the initial order.

     (2) If the parties have not requested review, the commission may conduct a review of the initial order upon its own motion and without notice to the parties, but it may not take any action on review less favorable to any party than the original order without giving that party notice and an opportunity to explain that party's view of the matter.

     (3) The order on review shall be in writing stating the findings made, and the reasons for the decision, and notice that reconsideration and judicial review ((is)) are available. The order on review shall be entered within twenty business days after the date of the initial order or of the request for review, whichever is later.

     (4) If the commission is not scheduled to meet within twenty business days after the date of the initial order or request for review and therefore cannot dispose of the request within that time period, the request is:

     (a) Deemed denied under RCW 34.05.491(5) and the initial order becomes final;

     (b) Considered a request for reconsideration under WAC 390-37-150; and

     (c) Scheduled for consideration and disposition at the next commission meeting.

[Statutory Authority: RCW 42.17.370. 91-16-072, § 390-37-144, filed 8/2/91, effective 9/2/91.]


AMENDATORY SECTION(Amending WSR 91-16-072, filed 8/2/91, effective 9/2/91)

WAC 390-37-150   Reconsideration and judicial review of decisions.   (1) For purposes of this rule, "decision" means any findings, conclusions, order, or other action by the commission which is reviewable by a court.

     (2) A decision may be reconsidered only upon (a) the written request of ((the person aggrieved)) a party thereby or (b) the motion or written request of a commissioner who voted on the prevailing side when that decision was made.

     (3) Such a request for reconsideration shall be ((served)) filed at the office of the public disclosure commission, or motion made, no later than ((ten)) twenty-one business days after service of the decision of which reconsideration is sought. Copies of the request or motion shall be served on all parties of record at the time the request for reconsideration or motion is filed.

     (4) A request or motion for reconsideration shall specify the grounds therefor. Grounds for reconsideration shall be limited to:

     (a) A request for review was deemed denied in accordance with WAC 390-37-144(4);

     (b) New facts or legal authorities that could not have been brought to the commission's attention with reasonable diligence. If errors of fact are alleged, the requester must identify the specific evidence in the prior proceeding on which the requester is relying. If errors of law are alleged, the requester must identify the specific citation; or

     (c) Significant typographical or ministerial errors in the order.

     (5) Upon being served with a decision, the respondent may treat that decision as final for the purpose of petitioning for judicial review. The commission may not reconsider any decision after being served with a petition for judicial review.

     (6) When a request for reconsideration is served, or motion made, enforcement of the decision of which reconsideration is sought shall be stayed and the decision shall not be final until the commission has acted on the reconsideration.

     (7) The commission is deemed to have denied request for reconsideration or motion if, within twenty business days from the date the request or motion is filed, the commission does not either (a) dispose of the request or motion, or (b) serve the parties with written notice specifying the date if will act upon the request or motion.

     (8) The commission shall act on the reconsideration request or motion, at the next meeting at which it practicably may do so, by:

     (a) Deciding whether to reconsider its decision((,)); and

     (b) If it decides to do so, either:

     (i) Affirming ((or amending)) its decision((:)); or

     (ii) Withdrawing or modifying the final order; or

     (iii) Setting the matter for further hearing.

     Provided, That before a decision may be amended other than by lowering a penalty, the respondent shall be given notice and an opportunity to be heard if, and in the same manner as, required for the original decision.

[Statutory Authority: RCW 42.17.370. 91-16-072, § 390-37-150, filed 8/2/91, effective 9/2/91. Statutory Authority: RCW 42.17.370(1). 79-08-046 (Order 79-03), § 390-37-150, filed 7/19/79.]

OTS-6657.1


NEW SECTION
WAC 390-37-155   Electronic filing brief enforcement hearing penalty schedule.  


Status 1st Occasion 2nd Occasion 3rd Occasion 4th Occasion
Failed to electronically file by date required. $250 $350 $500 Full commission consideration

     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.

     (3) The presiding officer may direct a matter to the full commission if the officer believes five hundred 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 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.

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NEW SECTION
WAC 390-37-160   Statement of financial affairs (F-1) penalty schedule.  


Status 1st Occasion 2nd Occasion 3rd Occasion 4th Occasion
Failed to file report by date of enforcement hearing. $150 $300 $500 Full commission consideration
Filed report after hearing notice but before enforcement hearing. Did not pay settlement amount. $100 $200 $400 Full commission consideration
Filed report after hearing notice but before enforcement hearing. Provided written explanation or appeared at the hearing to explain mitigating circumstances. Did not pay settlement amount. $0 - $100 $100 - $200 $200 - $400 Full commission consideration

     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.

     (3) The presiding officer may direct a matter to the full commission if the officer believes five hundred 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 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.

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NEW SECTION
WAC 390-37-165   Candidate registration statement (C-1)/candidate statement of financial affairs (F-1) penalty schedule.  


Status 1st Occasion 2nd Occasion 3rd Occasion 4th Occasion
Failed to file F-1 and/or C-1 by date of enforcement hearing. $150 per report $300 per report, up to $500 Full commission consideration Full commission consideration
Filed reports after hearing notice but before enforcement hearing. Did not pay settlement amount. $100 per report $200 per report $400 Full commission consideration
Filed report after hearing notice but before enforcement hearing. Provided written explanation or appeared at the hearing to explain mitigating circumstances. Did not pay settlement amount. $0 - $100 per report $100 - $200 per report $200 - $400 Full commission consideration

     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.

     (3) The presiding officer may direct a matter to the full commission if the officer believes five hundred 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 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.

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NEW SECTION
WAC 390-37-170   Lobbyist monthly expense report (L-2) penalty schedule.  


Status 1st Occasion 2nd Occasion 3rd Occasion 4th Occasion
Failed to file report by date of enforcement hearing. $150 $300 $500 Full commission consideration
Filed report after hearing notice but before enforcement hearing. Did not pay settlement amount. $100 $200 $400 Full commission consideration
Filed report after hearing notice but before enforcement hearing. Provided written explanation or appeared at the hearing to explain mitigating circumstances. Did not pay settlement amount. $0 - $100 $100 - $200 $200 - $400 Full commission consideration

     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. 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 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 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.

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NEW SECTION
WAC 390-37-175   Lobbyist employer report (L-3) penalty schedule.  


Status 1st Occasion 2nd Occasion 3rd Occasion 4th Occasion
Failed to file report by date of enforcement hearing. $150 $300 $500 Full commission consideration
Filed report after hearing notice but before enforcement hearing. Did not pay settlement amount. $100 $200 $400 Full commission consideration
Filed report after hearing notice but before enforcement hearing. Provided written explanation or appeared at the hearing to explain mitigating circumstances. Did not pay settlement amount. $0 - $100 $100 - $200 $200 - $400 Full commission consideration

     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.

     (3) The presiding officer may direct a matter to the full commission if the officer believes five hundred 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 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.

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