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Oregon Bulletin

May 1, 2011

Secretary of State,
Elections Division
Chapter 165

  • Rule Caption: Adopting and amending rules involving contested case hearings.
  • Adm. Order No.: ELECT 7-2011
  • Filed with Sec. of State: 4-8-2011
  • Certified to be Effective: 4-8-11
  • Notice Publication Date: 3-1-2011
  • Rules Adopted: 165-001-0009, 165-001-0016, 165-001-0034, 165-001-0036
  • Rules Amended: 165-001-0015, 165-001-0040
  • Subject: OAR 165-001-0009 is proposed for adoption to incorporate into rule definitions of “Charging Document” and “Agency” when used in division 1.
  •       OAR 165-001-0015 is proposed for amendment to clarify and make uniform the rule language.
  •       OAR 165-001-0016 is proposed for adoption to require an individual requesting a contested case hearing in person or by telephone to submit to the Secretary of State Elections Division a written response to the allegations in the charging document.
  •       OAR 165-001-0034 is proposed for adoption to require an individual submitting notarized testimony in lieu of a contested case hearing to submit to the Secretary of State Elections Division a written response to the allegations in the charging document.
  •       OAR 165-001-0036 is proposed for adoption to allow an Election Division employee to represent the agency in certain contested case hearings.
  •       OAR 165-001-0040 is proposed for amendment to prohibit any evidence from being presented at a contested case hearing that was not raised in the charging document or in the written response to the charging document.
  • Rules Coordinator: Brenda Bayes—(503) 986-1518
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  • 165-001-0009
  • Definitions
  • Unless the context requires otherwise, the following definitions apply to this Division:
  • (1) “Charging document” means any document issued by the Secretary of State, Elections Division stating that any person or government agency has violated the laws or rules within this Agency’s jurisdiction.
  • (2) “Agency” means Secretary of State, Elections Division and any employee thereof.
  • Stat. Auth.: ORS 246.150
  • Stats. Implemented: ORS 260.232 & 260.995
  • Hist.: ELECT 7-2011, f. & cert. ef. 4-8-11
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  • 165-001-0015
  • Notice of Opportunity for Hearing
  • When the Secretary of State proposes to impose a civil penalty or find a violation of an election law, or both, under ORS 260.232 or 260.995, the Secretary of State shall cause a notice to be served by certified mail and regular mail on the person(s) subject to the penalty. The notice shall include:
  • (1) A statement of the person’s right to a hearing before an Administrative Law Judge with the Office of Administrative Hearings.
  • (2) A statement that if the person desires a hearing, the agency must be notified within the number of days provided by statute from the date of receiving the notice.
  • (3) A statement of the authority and jurisdiction under which the hearing is to be held.
  • (4) A reference to the particular sections of the statutes and rules involved.
  • (5) A short and plain statement of the matters asserted or charged as a violation.
  • (6) A statement of the amount of penalty that may be imposed.
  • (7) A statement that the person may be represented by counsel at the hearing.
  • (8) If the person is an agency, corporation or an unincorporated association, that such person must be represented by an attorney licensed in Oregon, unless the person is a political committee which may be represented by any individual identified as the candidate, treasurer, alternate transaction filer, person designated as the correspondence recipient or director in the most recent statement of organization filed with the filing officer.
  • (9) A statement that the record of the proceeding to date, including the agency file or files on the subject of the contested case, automatically become part of the contested case record upon default for the purpose of proving a prima facie case.
  • (10) A statement that the person against whom a penalty may be assessed need not appear in person at a hearing held under ORS 260.232 or 260.995, but instead may submit written testimony and other evidence, sworn to before a notary public, to the Secretary of State for entry in the hearing record. Such documents must be received by the Secretary of State not later than three business days prior to the hearing as provided by 260.232(6).
  •  (11) A statement that unless precluded by law, informal disposition may be made of any contested case by stipulation, agreed settlement, consent order or default.
  • Stat. Auth.: ORS 183.090, 183.470 & 246.150
  • Stats. Implemented: ORS 183.341, 183.470, 260.232 & 260.995
  • Hist.: ELECT 15-1988(Temp), f. & cert. ef. 1-27-88; ELECT 26-1988, f. & cert. ef. 8-1-88; ELECT 27-1993, f. & cert. ef. 7-1-93; ELECT 9-1999, f. & cert. ef. 9-29-99; ELECT 7-2003, f. & cert. ef. 9-3-03; ELECT 19-2009, f. & cert. ef. 12-31-09; ELECT 7-2011, f. & cert. ef. 4-8-11
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  • 165-001-0016
  • Requesting a Hearing
  • (1) If a party wishes to request an in person or telephone hearing to contest the allegations in the charging document, they must submit to the Agency a written response, referred to as an “answer,” to the allegations in the charging document not later than the deadline to request a hearing stated in the charging document.
  • (a) The answer must include an admission or denial of each factual matter alleged in the charging document and a statement of each relevant defense to the allegations, including any relevant mitigating circumstance.
  • (b) A general denial is not sufficient to constitute an answer.
  • (2) An answer not including the information required by this rule may be disregarded and a notice of default may be issued in accordance with OAR 165-001-0025 as if no answer had been filed.
  • (3) Except for good cause shown to the administrative law judge, factual matters alleged in the charging document and not denied in the answer will be deemed admitted by the party.
  • (4) The failure of the party to raise a mitigating circumstance in the answer is a waiver of such mitigating circumstance.
  • (5) The party bears the burden of proof to show that all or part of the penalty should be mitigated based on a mitigating circumstance.
  • (6) Any new facts or defenses alleged in the answer will be deemed denied by the Agency.
  • (7) Evidence will not be taken at the contested case hearing on any factual or legal issue not raised in the charging document or the answer as filed.
  • Stat. Auth.: ORS 246.150
  • Stats. Implemented: ORS 260.232 & 260.995
  • Hist.: ELECT 7-2011, f. & cert. ef. 4-8-11
  •  
  • 165-001-0034
  • Notarized Testimony in lieu of Hearing
  • (1) If a party wishes to contest the allegations in the charging document, but does not wish to request an in person or telephone hearing, the party may submit notarized testimony in lieu of a hearing.
  • (2) The notarized testimony must be filed with the Agency not later than the deadline to request a hearing stated in the charging document.
  • (3) The notarized testimony must:
  • (a) Include an admission or denial of each factual matter alleged in the charging document and a statement of each relevant defense to the allegations, including any relevant mitigating circumstance. A general denial is not sufficient. Notarized testimony not including the information required by this rule may be disregarded and a notice of default may be issued in accordance with OAR 165-001-0025 as if no notarized testimony had been filed.
  • (b) Include a signed and completed Notarized Testimony form.
  • (c) Be notarized by a licensed Notary Public.
  • (4) After the party submits notarized testimony, the Agency may submit notarized testimony to the Office of Administrative Hearings and the party. If the Agency submits notarized testimony, it will be transmitted via email to the Office of Administrative Hearings and the party. The Agency may mail its notarized testimony to the party’s last known address if the party’s email address is unknown or does not accept the Secretary of State’s email.
  • (5) The party may, but is not required to, respond to the Agency testimony by submitting rebuttal notarized testimony.
  • (a) Rebuttal notarized testimony is limited to issues raised in the original notarized testimony and the Agency’s testimony.
  • (b) Rebuttal notarized testimony must be notarized by a licensed Notary Public.
  • (c) The rebuttal notarized testimony must be received by the Agency not later than five business days from the date of service of the Agency’s testimony (the date the testimony was emailed or mailed).
  • (d) The notarized testimony hearing record is deemed closed the day after the deadline for the person to submit rebuttal testimony.
  • (6) If a person submits notarized testimony in lieu of requesting an in person or telephone hearing, the person is waiving their right to an in person or telephone hearing.
  • Stat. Auth.: ORS 246.150
  • Stats. Implemented: ORS 260.232 & 260.995
  • Hist.: ELECT 7-2011, f. & cert. ef. 4-8-11
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  • 165-001-0036
  • Employee Representation at Contested Case Hearings
  • (1) The Agency’s goal in contested case hearings is to have a full and accurate record upon which the Agency can make the best decision. To help ensure a full record, the Agency allows employees to represent the Agency in certain contested case hearings. The employee representative’s role is to represent the Agency in a way that supports objective fact finding and encourages an open, fair, and efficient process.
  • (2) An Agency employee may represent the Agency in contested case hearings involving violations of ORS 260.035, 260.039, 260.041, 260.042, 260.044, 260.054, 260.055, 260.057, 260.076, 260.078, 260.083, 260.102, 260.112, 260.118, and 260.735.
  • (3) The representative’s responsibilities include, but are not limited to:
  • (a) Presenting evidence;
  • (b) Asking questions of all witnesses;
  • (c) Presenting information about the facts, and advocating for staff’s position surrounding the facts;
  • (d) Presenting information on how the facts apply to the statutes or rules directly related to the issues in the contested case;
  • (e) Presenting information comparing Agency actions in similar situations;
  • (f) Presenting information about the literal meaning of the statutes or rules that apply to the issues in the contested case; and
  • (g) Presenting information about the admissibility of evidence or the correctness of procedures being followed.
  • (4) The employee representative may not make legal arguments. “Legal arguments” include arguments on:
  • (a) The jurisdiction of the Agency to hear the contested case;
  • (b) The constitutionality of a statute or rule or the application of a constitutional requirement to the Agency; and
  • (c) The application of court precedent to the facts of the particular contested case proceeding.
  • (5) When an employee represents the Agency in a contested case hearing, the presiding officer will advise the employee representative of the way in which objections may be made. This advice is of a procedural nature and does not change applicable law on waiver or the duty to make timely objections. If the objections involve legal argument, the presiding officer will provide reasonable opportunity for the employee representative to consult legal counsel and permit legal counsel to file written legal argument within a reasonable time after the conclusion of the hearing.
  • Stat. Auth.: ORS 246.150
  • Stats. Implemented: ORS 260.232 & 260.995
  • Hist.: ELECT 7-2011, f. & cert. ef. 4-8-11
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  • 165-001-0040
  • Evidentiary Rules
  • (1) Evidence of a type commonly relied upon by reasonably prudent persons in the conduct of their serious affairs shall be admissible.
  • (2) Irrelevant, immaterial or unduly repetitious evidence shall be excluded.
  • (3) All offered evidence, not objected to, will be received by the administrative law judge subject to the administrative law judge’s power to exclude irrelevant, immaterial or unduly repetitious matter.
  • (4) Evidence objected to may be received by the administrative law judge. If the administrative law judge does not rule on its admissibility at the hearing, the administrative law judge shall do so either on the record before a proposed order is issued or in the proposed order.
  • (5) The administrative law judge shall accept an offer of proof made for excluded evidence. The offer of proof shall contain sufficient detail to allow the agency or court to determine whether the evidence was properly excluded. The administrative law judge shall have discretion to decide whether the offer of proof is to be oral or written and at what stage in the proceeding it will be made. The administrative law judge may place reasonable limits on the offer of proof, including the time to be devoted to an oral offer or the number of pages in a written offer.
  • (6) Pursuant to OAR 165-001-0016, evidence may not be taken at the contested case hearing on any factual or legal issue not raised in the charging document or the answer.
  • Stat. Auth.: ORS 246.150, 260.232 & 260.995
  • Stats. Implemented: ORS 183.450, 183.470, 260.232 & 260.995
  • Hist.: ELECT 15-1988(Temp), f. & cert. ef. 1-27-88; ELECT 26-1988, f. & cert. ef. 8-1-88; ELECT 9-1999, f. & cert. ef. 9-29-99; ELECT 7-2003, f. & cert. ef. 9-3-03; ELECT 19-2009, f. & cert. ef. 12-31-09; ELECT 7-2011, f. & cert. ef. 4-8-11
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  • Rule Caption: Amendment to the 2010 Campaign Finance Manual.
  • Adm. Order No.: ELECT 8-2011
  • Filed with Sec. of State: 4-8-2011
  • Certified to be Effective: 4-8-11
  • Notice Publication Date: 3-1-2011
  • Rules Amended: 165-012-0005
  • Subject: This proposed amendment revises the 2010 Campaign Finance Manual by updating the hearing procedures used for a late or insufficient filing to require an individual requesting a contested case hearing in person or by telephone to submit to the Secretary of State Elections Division a written response to the allegations in the charging document. Additionally, the hearing procedures are proposed for amendment to require an individual submitting notarized testimony in lieu of a contested case hearing to submit to the Secretary of State Elections Division a written response to the allegations in the charging document.
  • Rules Coordinator: Brenda Bayes—(503) 986-1518
  •  
  • 165-012-0005
  • Designating the Campaign Finance Manual and Forms; Late Penalty Matrix
  • (1) Pursuant to ORS 260.156, the Secretary of State designates the 2010 Campaign Finance Manual and associated forms as the procedures and guidelines to be used for compliance with Oregon campaign finance regulations.
  • (2) The following amendments to the 2010 Campaign Finance Manual will apply to all ORESTAR late and insufficient penalty cases under ORS 260.232. The amendments to this rule with the exception of sections (7) and (9) go into effect upon the adoption of this rule. Sections (7) and (9) apply to late or insufficient cases occurring May 2011 forward.
  • (3) Page 64 right column, replace all paragraphs under the heading Late and Insufficient Penalty Cases (ORS 260.232) with the following:
  • (a) If the Secretary of State determines that a committee is in violation of Oregon election law for a late or insufficient filing, the treasurer, and candidate, if applicable, of the committee is sent a notice of proposed civil penalty (the charging document) that informs them of the potential civil penalty and provides them with an opportunity to request a hearing. This notice is sent by both certified and regular mail to the committee treasurer or, in the case of a candidate committee, by both certified and regular mail to the candidate with a copy by regular mail to the treasurer, and correspondence recipient, if applicable.
  • (b) Late and insufficient violations will be processed by calendar month. Each case for a given month will include late violations (transactions that are filed late in that particular month) and insufficient violations (transactions that are not sufficiently corrected by the exam response due date in that particular month.)
  • (c) For example, a transaction is due on April 15, 2009. The transaction isn’t filed until May 1, 2009. This violation will be part of the May case.
  • (d) A transaction is identified as insufficient on an exam letter, with a response due date of May 10, 2009. The transactions isn’t corrected until May 15, 2009, this violation will also be part of the May case.
  • (e) If the total calculated penalty for a case is less than $50, a proposed penalty will not be issued and there will be no violation found.
  • (f) If a person is not going to contest the proposed penalty, payment may be made payable to the Secretary of State and mailed to the Elections Division prior to the issuance of a default final order or not later than 60 days after the default final order is issued.
  • (4) Page 65 left column, replace all language beginning with heading Request for Hearing through the language under the heading Hearing by Telephone located in the right column with the following:
  • (a) STEP ONE: RESPONDING TO PROPOSED PENALTY NOTICE.
  • (A) When a person receives a proposed penalty notice, they can either pay the penalty, or contest the charges by submitting notarized testimony in lieu of a hearing or requesting an in person or telephone hearing.
  • (B) To pay the penalty the following must occur:
  • (i) Payment is made payable to the Secretary of State.
  • (ii) Payment may be mailed to the Elections Division prior to the issuance of the default final order, at any time after the proposed penalty notice is issued.
  • (iii) Payment must be received not later than 60 days after the default final order is issued.
  • (iv) If necessary, the person may contact the Elections Division at 503-986-1518 to discuss payment plan options.
  • (C) To submit notarized testimony in lieu of an in person or telephone hearing to contest the case the following must occur:
  • (i) The person must submit a signed Hearing Request Form and an answer to the violations within 20 days of the receipt of the certified mail notice of proposed civil penalty. If the certified letter is refused or left unclaimed at the post office, the 20 day period begins on the day the post office indicates it has given first notice of the certified letter.
  • (ii) The answer must include an admission or denial of each factual matter alleged in the proposed penalty notice.
  • (iii) The answer must identify any mitigating circumstance that applies and indicate specifically what facts or transactions the mitigating circumstance applies to.
  • (iv) If the person has evidence of a mitigating circumstance, or other relevant evidence, this can be submitted with the answer as exhibits.
  • (v) Except for good cause shown to the administrative law judge, factual matters alleged in the penalty notice and not denied in the answer will be deemed admitted by the party.
  • (vi) The testimony must be notarized by a licensed Notary Public.
  • (vii) A worksheet is available on the back of the Hearing Request Form and may be used to complete the answer. Additional copies may be obtained by emailing your request to elec-hearings@sos.state.or.us or by contacting the Elections Division at 503-986-1518.
  • (viii) The testimony may be mailed to the Elections Division at 255 Capitol St NE, Ste 501, Salem OR 97310 or may be faxed to 503-373-7414.
  • (D) To request an in person or telephone hearing to contest the case the following must occur:
  • (i) The person must submit a signed Hearing Request Form and an answer to the violations within 20 days of the receipt of the certified mail notice of proposed civil penalty. If the certified letter is refused or left unclaimed at the post office, the 20 day period begins on the day the post office indicates it has given first notice of a certified letter.
  • (ii) The person must elect whether or not they want the hearing by telephone or in person on the Hearing Request Form, and sign where indicated.
  • (iii) The answer must include an admission or denial of each factual matter alleged in the proposed penalty notice.
  • (iv) The answer must identify any mitigating circumstance that applies and indicate specifically what facts or transactions the mitigating circumstance applies to.
  • (v) If the person has evidence of a mitigating circumstance, or other relevant evidence, this can be submitted with the answer as exhibits.
  • (vi) Except for good cause shown to the administrative law judge, factual matters alleged in the penalty notice and not denied in the answer will be deemed admitted by the party.
  • (b) STEP TWO: CONTESTED CASE PROCESS — If a person submits the Hearing Request Form, the hearing will be conducted by an administrative law judge with the Office of Administrative Hearings through one of the following processes:
  • (A) NOTARIZED TESTIMONY PROCESS — If the person has timely submitted the signed Hearing Form designating the submission of notarized testimony, the Elections Division will refer the case and forward the person’s notarized testimony to the Office of Administrative Hearings. The following process then applies:
  • (i) When the Elections Division Submits Testimony — The Elections Division may submit notarized testimony (and any exhibits) to the Office of Administrative Hearings and to the person that filed the notarized testimony. The Elections Division’s notarized testimony will be sent via email to the email address provided on the request form. The Secretary of State, Elections Division may mail its notarized testimony to the party’s last known address if the party’s email address is unknown or does not accept the Secretary of State’s email.
  • (ii) Opportunity for Rebuttal Testimony — The person may, but is not required to, respond to the Elections Division testimony by submitting rebuttal notarized testimony. The rebuttal testimony is limited to issues raised in the person’s original testimony and the Elections Division’s testimony. The rebuttal testimony must be received not later than five business days from the date of service of the Division’s testimony (the date the testimony was emailed or mailed). The notarized testimony “hearing” is deemed closed the day after the deadline for the person to submit rebuttal testimony.
  • (B) IN PERSON OR TELEPHONE HEARING PROCESS — If the person has timely submitted the signed Hearing Form designating an in person or telephone hearing, the following process applies:
  • (i) Scheduling a Hearing — The Elections Division will refer the hearing request, including the party’s answer and hearing request form, to the Office of Administrative Hearings. The Office of Administrative Hearings will schedule a hearing not later than 45 days after the deadline for requesting a hearing. A 15 day extension may be granted if requested in writing by the person subject to the civil penalty.
  • (ii) Submitting Exhibits Not less than five business days prior to the commencement of the hearing, each party, including the Elections Division, must deliver copies of the exhibits it intends to offer into evidence at the hearing. Exhibits must be delivered to the Administrative Law Judge, all parties, and the Elections Division. Delivery of the exhibits may be accomplished by any of the following means, or by other means of similar nature: Hand delivery; First class or certified mail; Facsimile; Professional delivery service; or Emailed in a pdf format to elec-hearings@sos.state.or.us. Nothing precludes any party or the Elections Division from seeking to introduce documentary evidence in addition to evidence described above during a telephone or in person hearing. The Administrative Law Judge shall receive such evidence, subject to the applicable rules of evidence, only if inclusion of the evidence in the record is necessary to conduct a full and fair hearing.
  • (iii) Conduct of In Person or Telephone Hearing — If the hearing is in person, it will be conducted at the time scheduled and held in a hearing room at the Office of Administrative Hearings in Salem. If the hearing is by telephone, the parties will call the phone number provided in the Notice of Hearing sent by the Office of Administrative Hearings. The hearing will be presided over by an Administrative Law Judge. The Administrative Law Judge will describe the hearing process at the beginning of each hearing. The parties will then be given the opportunity to give opening statements, present and examine witnesses, and give closing statements.
  • (iv) Opportunity to Opt Out of In Person or Telephone Hearing — If a person requests an in person or telephone hearing and the hearing is scheduled by the Office of Administrative Hearings, then subsequently decides they do not want to appear at the hearing, but still wants to contest the penalty, the person may submit notarized testimony and other evidence for entry into the hearing record before the Administrative Law Judge. The Elections Division must receive the testimony no later than three business days before the day of the scheduled hearing. The Elections Division may submit notarized testimony. The testimony must be received by the Office of Administrative Hearings not later than 5:00 pm on the hearing scheduled date. If the Elections Division does not submit notarized testimony, the Agency file will become a part of the case file and establish the basis for liability. This process is separate and distinct from the Notarized Testimony process discussed above and applies only when a party requests an in person or telephone hearing and later decides not to appear at the hearing and instead provide notarized testimony and evidence.
  • (c) STEP THREE: PROPOSED AND FINAL ORDERS.
  • (A) Proposed Order — After the hearing is closed, the Office of Administrative Hearings sends the treasurer, candidate, and the Elections Division the administrative law judge’s proposed order. The administrative law judge’s proposed order will provide a deadline to file written exceptions to the proposed order. If the Elections Division chooses to amend the proposed order issued by the administrative law judge, the Elections Division will send an amended proposed order which will provide a deadline to file written exceptions to the amended proposed order.
  • (B) Final Order —After reviewing and considering the written exceptions, the Elections Division will issue a final order no later than 90 days after the hearing is closed. If the order imposes a civil penalty, the party has 60 days to pay the penalty or file an appeal. If necessary, the person may contact the Elections Division at 503-986-1518 to discuss payment plan options.
  • (d) Judicial Review of a Final or Default Order — After the issuance of a final order or default final order, a candidate or treasurer is entitled to judicial review of the order. Judicial review may be obtained by filling a petition for review with the Oregon Court of Appeals within 60 days of the service date of the order.
  • (5) Page 65 right column, under heading Mitigating Circumstances, replace the first paragraph with the following: If an in person, telephone or notarized testimony hearing is requested and testimony is provided regarding the mitigating circumstance that directly caused the late or insufficient filing, the Administrative Law Judge and the Secretary of State may consider reducing in whole or in part, the civil penalty, based on the facts presented by the testimony.
  • (6) Page 66 right column, delete all language under headings Final Order and Default Final Order.
  • (7) Page 67 left column under the heading Penalties for Late Transactions, replace the paragraph with: The treasurer responsible for a late filed transaction is the treasurer of record at the time the transaction is due. The liability for the civil penalty remains with the treasurer, and the candidate, if applicable, even if the late transaction is filed by the designated alternate transaction filer.
  • (8) Page 68 left column under the heading Penalty Matrix Late Filings should be replaced with the following: Penalties may be assessed for any contribution or expenditure transaction that is filed late or any cash balance adjustment transaction. A transaction is considered late in any of the following circumstances:
  • (a) a transaction is not filed by the due date for the transaction;
  • (b) a change is made to the name of the contributor or payee after the transaction due date, resulting in an entirely different contributor or payee being associated with the transaction (the transaction is considered late from the transaction due date to the date the amended transaction changing the contributor or payee is filed);
  • (c) a change is made to the date of the transaction resulting in a due date that is prior to the date the transaction was originally filed (the transaction is considered late from the date the transaction should have been filed to the date the transaction was originally filed);
  • (d) a change (increase or decrease) is made to the amount of a previously reported transaction after the transaction due date (the amount of the change is late from the transaction due date to the date the amended transaction changing the amount is filed) no penalty will be imposed for a change in the amount of an expenditure made by an agent transaction;
  • (e) a previously reported transaction is deleted after the transaction due date (the transaction is considered late from the transaction due date to the date the transaction deletion is filed);
  • (f) a cash balance adjustment transaction is filed because the committee is unable to reconcile the calculated cash balance based on transactions filed with the Secretary of State with the committee’s bank balance; or
  • (g) The transaction type is amended from any transaction type other than a contribution or expenditure to a contribution or expenditure, and the original transaction was filed after the deadline (the transaction is considered late from the transaction due date to the date the original transaction is filed).
  • (9) Page 69 under the heading Maximum Penalties should be replaced with the following:
  • (a) The maximum penalty for each late transaction, except for a change in a transaction amount, is 10% of the amount of the transaction. The maximum penalty for a change in a transaction amount is 10% of the change in amount.
  • (b) The maximum penalty for a late Certificate of Limited Contributions and Expenditures is $100.
  • (c) The maximum penalty for each cash balance adjustment is 10% of the amount of the transaction.
  • (d) The maximum penalty for a late Statement of Independent Expenditures (form PC 10) is 10% of the total amount reported on form PC 10.
  • (10) Page 71 right column under the heading Penalties should be replaced with the following:
  • (a) for all missing or insufficient items, other than those listed below: $10 per item;
  • (b) failure to provide the terms of a loan: 1% of the loan;
  • (c) Omitted or insufficient information submitted after the amendment deadline but prior to the deadline for a candidate or treasurer to request a hearing will result in a 50% per item reduction of the penalty, if the information is deemed sufficient. If a public hearing is requested, the omitted or insufficient information may be submitted up to the date of the hearing and if deemed sufficient will result in a 50% per item reduction of the penalty.
  • (11) Amend all references in the 2010 Campaign Finance Manual regarding the requirement for a candidate to file a candidate committee from $350 to $750, including Pages 13, 41, 59 and form SEL 220, Statement of Organization for Candidate Committee.
  • [Publications: Publications and Forms referenced are available from the agency.]
  • Stat. Auth.: ORS 246.120, 246.150, 260.156 & 260.200
  • Stats. Implemented: ORS 246.120, 246.150, 260.156 & 260.200
  • Hist.: SD 101, f. & ef. 12-3-75; SD 120, f. & ef. 12-21-77; SD 34-1980, f. & ef. 3-6-80; SD 28-1983, f. & ef. 12-20-83; SD 3-1986, f. & ef. 2-26-86; ELECT 32-1988(Temp), f. & cert. ef. 8-26-88; ELECT 22-1989(Temp), f. & cert. ef. 11-9-89; ELECT 19-1990, f. & cert. ef. 6-4-90; ELECT 14-1992 (Temp), f. & cert. ef. 6-10-92; ELECT 37-1992, f. & cert. ef. 12-15-92; ELECT 34-1993, f. & cert. ef. 11-1-93; ELECT 1-1995(Temp), f. & cert. ef. 2-23-95; ELECT 15-1995, f. & cert. ef. 12-18-95; ELECT 9-1996, f. & cert. ef. 7-26-96; ELECT 5-1997, f. & cert. ef. 3-24-97; ELECT 6-1997(Temp), f. & cert. ef. 4-18-97; ELECT 15-1997, f. & cert. ef. 12-31-97; ELECT 5-1998, f. & cert. ef. 2-26-98; ELECT 8-1998, f. & cert. ef. 6-2-98; ELECT 9-1998, f. & cert. ef 9-11-98; ELECT 13-1998(Temp), f. & cert. ef. 12-15-98 thru 6-13-99; ELECT 2-1999(Temp), f. & cert. ef. 1-15-99 thru 7-14-99; ELECT 3-1999, f. & cert. ef. 3-1-99; ELECT 1-2000, f. & cert. ef. 1-3-00; ELECT 3-2002, f. & cert. ef. 3-13-02; ELECT 23-2003, f. & cert. ef. 12-12-03; ELECT 13-2005, f. & cert. ef. 12-30-05; ELECT 1-2007, f. & cert. ef. 1-5-07; ELECT 2-2007(Temp), f. & cert. ef. 5-2-07 thru 10-29-07; ELECT 4-2007(Temp), f. & cert. ef. 7-16-07 thru 12-31-07; ELECT 13-2007, f. & cert. ef. 12-31-07; ELECT 8-2009, f. & cert. ef. 5-4-09; ELECT 16-2009, f. & cert. ef. 7-30-09; ELECT 27-2009, f. & cert. ef. 12-31-09; ELECT 3-2010, f. & cert. ef. 4-22-10; ELECT 8-2011, f. & cert. ef. 4-8-11
  •  
  • Rule Caption: Amendment to Penalty Matrix for other campaign finance violations.
  • Adm. Order No.: ELECT 9-2011
  • Filed with Sec. of State: 4-8-2011
  • Certified to be Effective: 4-8-11
  • Notice Publication Date: 3-1-2011
  • Rules Amended: 165-013-0010
  • Subject: This rule is proposed for amendment to update the Penalty Matrix for Campaign Finance Civil Penalty Election Law Violations to reflect that the maximum penalties allowed under ORS 260.995 will be assessed for violations contained in the penalty matrix. The proposed amendment also provides for a 50% reduction in penalty assessed if omitted or insufficient information for a violation of ORS 260.039(4), 260.042(4) or 260.118(3) is submitted.
  • Rules Coordinator: Brenda Bayes—(503) 986-1518
  •  
  • 165-013-0010
  • Penalty Matrix for Other Campaign Finance Violations
  • (1) This penalty matrix applies to civil penalties for campaign finance violations not covered by the penalty matrices in the Campaign Finance Manual.
  • (2)(a) Spot Check Review. The Secretary of State, Elections Division, will hold exempt from disclosure as a public record any bank account number(s), credit card number(s) or social security number(s) received as required documentation in response to a request for documentation necessary to perform a spot check review in accordance with ORS 260.215(3).
  • (b) If a committee fails to provide documentation or provides insufficient documentation in response to a request for documentation necessary to perform a spot check review, each omitted or insufficient item is a violation of ORS 260.055(3).
  • (c) If the committee fails to provide sufficient documentation for a transaction by the deadline stated in the first spot check review letter, the Elections Division shall send a second review letter notifying the committee which transaction(s) lack sufficient documentation. The second review letter shall provide the committee a deadline for response.
  • (d) Omitted or insufficient information submitted after the deadline provided in the second review letter, but prior to the deadline for a candidate or treasurer to request a hearing will result in a 50% per item reduction of the penalty. If a public hearing is requested, the omitted or insufficient documentation may be submitted up to the date of the hearing. In such an event, the candidate or treasurer will be entitled to a 50% per item reduction of the assessed penalty.
  • (e) The candidate or treasurer of record at the time the first spot check review letter is generated, along with the candidate if applicable, is responsible for submitting documentation for all transactions selected in the spot check review.
  • (f) For the purpose of imposing a civil penalty for a violation of ORS 260.055(3), the candidate of the principal campaign committee; and the treasurer of a political or petition committee are the parties responsible for the payment of any civil penalty.
  • (3) Mitigating Circumstances. Except as specifically provided in paragraph (2)(d), the only mitigating circumstances that will be considered in a campaign finance violation covered by this rule include:
  • (a) The violation is a direct result of a valid personal emergency of the candidate or treasurer. A valid personal emergency is an emergency, such as a serious personal illness or death in the immediate family of the candidate or treasurer which caused the violation to occur. Personal emergency does not include a common cold or flu, or a long-term illness where other arrangements could have been made. In this case, independent written verification must be provided;
  • (b) The violation is the direct result of an error by the elections filing officer;
  • (c) The violation is the direct result of clearly-established fraud, embezzlement, or other criminal activity against the committee, committee treasurer or candidate, as determined in a criminal or civil action in a court of law or independently corroborated by a report of a law enforcement agency or insurer or the sworn testimony or affidavit of an accountant or bookkeeper or the person who actually engaged in the criminal activity;
  • (d) The violation is the direct result of fire, flood or other calamitous event, resulting in physical destruction of, or inaccessibility to, committee records. (“Calamitous event” means a phenomenon of an exceptional character, the effects of which could not have been reasonably prevented or avoided by the exercise of due care or foresight);
  • (e) The violation is the direct result of failure of a professional delivery service to deliver documents in the time guaranteed for delivery by written receipt of the service provider (this does not include delivery by fax); or
  • (f) The violation is the direct result of negligent record keeping by a former treasurer. Former treasurer refers to the person who was the treasurer of record at the time the transaction was filed or should have been filed.
  • (4)(a) Penalty Matrix. These mitigating circumstances may be considered in reducing, in whole or in part, the civil penalty. If the violation is a direct result of an error by the elections filing officer, the violation is waived and no penalty is assessed.
  • (b) Omitted or insufficient information for a violation of ORS 260.039(4), 260.042(4) or 260.118(3) submitted prior to the deadline for a candidate or treasurer to request a hearing will result in a 50% reduction of the penalty. If a public hearing is requested, the omitted or insufficient information may be submitted up to the date of the hearing. In such an event, the candidate or treasurer will be entitled to a 50% reduction of the assessed penalty.
  • (c) For purposes of determining penalty amounts for violations of campaign finance violations covered by this rule Appendix A of this rule will apply. [Appendix not included. See ED. NOTE.]
  • [ED. NOTE: Appendix referenced is available from the agency.]
  • Stat. Auth.: ORS 246.150, 260.200
  • Stats. Implemented: ORS 260.200, 260.215, 260.232, 260.995
  • Hist.: ELECT 13-2000, f. 7-31-00, cert. ef. 8-4-00; ELECT 22-2003, f. & cert. ef. 12-5-03; ELECT 1-2004, f. & cert. ef. 2-13-04; ELECT 16-2005, f. & cert. ef. 12-30-05; ELECT 10-2006(Temp), f. & cert. ef. 7-6-06 thru 1-2-07; ELECT 17-2006, f. & cert. ef. 12-29-06; ELECT 14-2007, f. & cert. ef. 12-31-07; ELECT 30-2009, f. & cert. ef. 12-31-09; ELECT 9-2011, f. & cert. ef. 4-8-11

Notes
1.) This online version of the OREGON BULLETIN is provided for convenience of reference and enhanced access. The official, record copy of this publication is contained in the original Administrative Orders and Rulemaking Notices filed with the Secretary of State, Archives Division. Discrepancies, if any, are satisfied in favor of the original versions. Use the OAR Revision Cumulative Index found in the Oregon Bulletin to access a numerical list of rulemaking actions after November 15, 2010.

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