Report Title:

Elections; campaign spending commission; penalties

Description:

Clarifies regulations regarding the filing of campaign spending reports and provides for and establishes a graduated schedule of fines for failure to file a report. (HB1660 HD1)

HOUSE OF REPRESENTATIVES

H.B. NO.

1660

TWENTY-SECOND LEGISLATURE, 2003

H.D. 1

STATE OF HAWAII

 


 

A BILL FOR AN ACT

 

RELATING TO ELECTIONS.

 

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:

SECTION 1. Section 11-193, Hawaii Revised Statutes, is amended by amending subsection (a) to read as follows:

"(a) The duties of the commission under this subpart are:

(1) To develop and adopt reporting forms required by this subpart;

(2) To adopt and publish a manual for all candidates and committees, describing the requirements of this subpart, including uniform and simple methods of recordkeeping;

(3) To preserve all reports required by this subpart for at least ten years from the date of receipt;

(4) To permit the inspection, copying, or duplicating of any report required by this subpart pursuant to rules adopted by the commission; provided that no information or copies from the reports shall be sold or used by any person for the purpose of soliciting contributions or for any commercial purpose;

(5) To ascertain whether any candidate, committee, or party has failed to file a report required by this subpart or has filed a substantially defective or deficient report, and to notify these persons by first class mail that their failure to file or filing of a substantially defective or deficient report must be corrected and explained[. The correction or explanation shall be submitted in writing to the commission not later than 4:30 p.m. on the fifth day after notification of the failure to file or deficiency has been mailed to these persons. The commission shall publish in the newspaper, and on its website, the names of all candidates, committees, and parties who have failed to file a report or to correct their deficiency within the time allowed by the commission. Failure to file or correct a report when due, as required by this subpart, shall result in a penalty of $50. Failure to respond after a newspaper notification or website publication shall result in an additional penalty of $50 for each day a report remains overdue or uncorrected. All penalties collected under this section shall be deposited in the Hawaii election campaign fund];

(6) To hold public hearings;

(7) To investigate and hold hearings for receiving evidence of any violations;

(8) To adopt a code of fair campaign practices as a part of its rules;

(9) To establish rules pursuant to chapter 91;

(10) To request the initiation of prosecution for the violation of this subpart pursuant to section 11-229;

(11) To administer and monitor the distribution of public funds under this subpart;

(12) To suggest accounting methods for candidates, parties, and committees, as the commission may deem advisable, in connection with reports and records required by this subpart;

(13) To employ or contract, without regard to chapter 76 and section 28-8.3, and, at pleasure, to dismiss persons it finds necessary for the performance of its functions, including a full-time executive director, and to fix their compensation;

(14) To do random audits, field investigations, as necessary;

(15) To file for injunctive relief when indicated;

(16) To censure any candidate who fails to comply with the code of fair campaign practices; and

(17) To render advisory opinions upon the request of any candidate, candidate committee, noncandidate committee, or other person or entity subject to this chapter, as to whether the facts and circumstances of a particular case constitute or will constitute a violation of the campaign spending laws. If no advisory opinion is rendered within ninety days after all information necessary to issue an opinion has been obtained, it shall be deemed that an advisory opinion was rendered and that the facts and circumstances of that particular case do not constitute a violation of the campaign spending laws. The opinion rendered or deemed rendered, until amended or revoked, shall be binding on the commission in any subsequent charges concerning the candidate, candidate committee, noncandidate committee, or other person or entity subject to this chapter, who sought the opinion and acted in reliance on it in good faith, unless material facts were omitted or misstated by the persons in the request for an advisory opinion."

SECTION 2. Section 11-195, Hawaii Revised Statutes, is amended to read as follows:

"§11-195 Filing of reports, generally. (a) All reports required to be filed under this subpart by a candidate or those committees directly associated with the candidate's candidacy shall be certified by the candidate and treasurer. Reports required to be filed under this subpart by a party or committee that supports more than one candidate shall be certified by a person authorized to sign the reports. All reports required to be filed under this subpart shall be open for public inspection in the office of the commission.

(b) The original and one copy of all reports required under this subpart shall be filed at the office of the commission. In the case of counties having less than two hundred thousand voters, the filing shall be accomplished by filing an original and two copies of the required report with either the commission or the clerk of the county in which the candidate resides. The clerk shall then immediately mail the original and one copy of the report to the commission.

(c) The commission or county clerk shall give each person filing a report a receipt stating the type of report filed and the date and time of filing.

(d) All reports filed with the county clerk's office shall be preserved by that office for ten years.

(e) All reports required to be filed under this subpart shall at all times be available to the general public.

(f) If a candidate, committee, or party fails to file a report, or files a substantially defective or deficient report required under this subpart by the date and time specified for the filing of the report, the commission shall notify the candidate, committee, or party of it's failure to file a report or the filing of a substantially defective or deficient report and require the submission of an explanation for the reasons why the candidate, committee, or party should not be fined. Notification to the address of record shall be sent within three working days excluding Saturdays, Sundays, and holidays, after the date of the applicable filing deadline by certified mail, registered mail, or first class mail with a certificate of mailing obtained as evidence of service to the candidate. A candidate, committee, or party that fails to comply with the filing requirements shall be fined in accordance with section 11-228(b). However, if after reviewing any explanation offered by the candidate, committee, or party for the candidate's, committee's, or party's failure to file a timely or correct report, the commission determines that good faith efforts were made by the candidate, committee, or party to meet the requirements of this subpart and that the reason for failing to file or filing a defective or deficient report was caused by unforeseen circumstances beyond the person's control, the commission may waive any amount of the fine in excess of $50 upon receipt of the report or correction. In no event shall the candidate, committee, or party be excused from filing the reports required by this subpart. Any candidate, committee, or party adversely affected by a decision rendered by the commission pursuant to this subsection may contest the decision in accordance with chapter 91.

[(f)](g) For purposes of this subpart, whenever a report is required to be filed with the commission, "filed" means received in the office of the commission or county clerk, whichever is applicable, by the date and time specified for the filing of the report; except that a candidate or the committee of a candidate who is seeking election to the office of:

(1) Governor;

(2) Lieutenant governor;

(3) Mayor;

(4) Prosecuting attorney; or

(5) County council;

shall file by electronic means in the manner prescribed by the commission. Candidates for the offices named in this subsection with contributions or expenditures of less than $5,000 need not file by electronic means."

SECTION 3. Section 11-228, Hawaii Revised Statutes, is amended to read as follows:

"§11-228 Administrative fines; relief. (a) [In the performance of its required duties,] Except as otherwise provided in subsection (b), the commission may render a decision or issue an order affecting any person violating any provision of this subpart or section 281-22 that shall provide for the assessment of an administrative fine in the manner prescribed as follows:

(1) If a natural person, an amount not to exceed $1,000 for each occurrence or an amount equivalent to three times the amount of an unlawful contribution or expenditure, whichever is greater; or

(2) If a corporation, organization, association, or labor union, it shall be punished by a fine not exceeding $1,000 for each occurrence; and

(3) Whenever a corporation, organization, association, or labor union violates this subpart, the violation shall be deemed to be also that of the individual directors, officers, or agents of the corporation, organization, association, or labor union, who have knowingly authorized, ordered, or done any of the acts constituting the violation.

(b) Subject to section 11-195(f), the commission shall fine the candidate, committee, or party as follows:

(1) If the report or correction is received by the commission after the deadline but before 4:30 p.m. on the thirtieth day after service, $50 for each day that the candidate, committee, or party fails to comply with the filing requirements; provided that the total fine levied for this period shall not exceed $500;

(2) If the report or correction is received by the commission during the period beginning at 4:30 p.m. on the thirtieth day after service and ending at 4:30 p.m. on sixtieth day after service, $100 for each day that the candidate, committee, or party fails to comply with the filing requirements; provided that the total fine levied for this period shall not exceed $1,500;

(3) If the report or correction is received by the commission after 4:30 p.m. on the sixtieth day after service, $500 for each day that the candidate, committee, or party fails to comply with the filing requirements; provided that the total fine levied for this period shall not exceed $5,000; and

(4) Fines levied for each period shall be accrued cumulatively.

[ b ](c) Any order for the assessment of an administrative fine may not be issued against a person without providing the person written notice and an opportunity to be heard at a hearing conducted under chapter 91. A person may waive these rights by written stipulation or consent. If an administrative fine is imposed upon a candidate, the commission may order that the fine, or any portion, be paid from the candidate's personal funds.

[(c)](d) If an order issued by the commission is not complied with by the person to whom it is directed, the first circuit court, upon application of the commission, shall issue an order requiring the person to comply with the commission's order. Failure to obey such a court order shall be punished as contempt.

[(d)](e) Any administrative fine collected by the commission shall be deposited in the Hawaii election campaign fund.

[(e)](f) Any person or the commission may sue for injunctive relief to compel compliance with this subpart.

[(f)](g) The provisions of this section shall not be construed to prohibit prosecution under any appropriate provision of the Hawaii Penal Code or section 11-229.

[(g)](h) The provisions of this section shall not apply to any person who, prior to the commencement of proceedings under this section, has paid or agreed to pay the penalties prescribed by sections 11-193(a)(5) and 11-215(c)."

SECTION 4. This Act does not affect rights and duties that matured, penalties that were incurred, and proceedings that were begun, before its effective date.

SECTION 5. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.

SECTION 6. This Act shall take effect upon its approval.