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HomeMy WebLinkAboutCA Independent ExpendituresCITY OF Agenda Item No: 3 b. Meeting Date: August 15, 2011 SAN RAFAEL CITY COUNCIL AGENDA REPORT Department: City Attorney Prepared by: Lisa A. Goldfien City Manager Approval: Deputy City Attorney 11 SUBJECT: 1. Consideration of a Resolution Establishing Procedures for Administrative Hearings on Violations of San Rafael Municipal Code Chapter 1.16 Regulating Disclosure and Reporting of Independent Expenditures in City Elections. 2. Consideration of a Resolution Establishing a Schedule of Administrative Penalties for Violations of San Rafael Municipal Code Chapter 1.16 Regulating Disclosure and Reporting of Independent Expenditures in City Elections. RECOMMENDATION: Staff recommends that the City Council adopt the attached Resolutions. BACKGROUND: On September 7, 2010, the City Council adopted Ordinance No. 1887, which added Chapter 1.16 to the San Rafael Municipal Code. Chapter 1.16 imposes certain disclosure and reporting requirements on persons or committees making "independent expenditures" totaling at least $1,000 in an election for a City office or ballot measure. An "independent expenditure" is defined in Section 1.16.030 as "either 1) an expenditure made by any person or committee in connection with a communication which expressly advocates the election or defeat of a clearly identified City candidate, but which is not made to or at the behest of that candidate or a committee controlled by that candidate; or 2) an expenditure made by any person or committee in connection with a communication which expressly advocates the passage or defeat of a clearly identified City measure, but which is not made at the behest of or reported as a contribution to a committee supporting or opposing that measure." The Ordinance does not regulate campaign communications paid for with independent expenditures on the basis of their content, nor does it attempt in any way to impose local limits on the amount of campaign contributions. The intention of the Ordinance is merely to increase transparency and improve voter access to information about independent expenditures made in connection with City campaigns. The November 8, 2011 election will be the first election to which these new regulations will apply. FOR CITY CLERK ONLY File No.: 1- Council Meeting:'I _ !El Disposition: �LU-16>Av,5 -7 SAN RAFAEL CITY COUNCIL AGENDA REPORT / Page: 2 ANALYSIS: Resolution Establishing Procedures for Administrative Hearings on Violations of San Rafael Municipal Code Chapter 1.16. Although knowing and willful violations of the new disclosure and reporting requirements may be enforced criminally, it is anticipated that enforcement of violations will ordinarily occur through an administrative process administered by the City Clerk. Pursuant to Section 1.16.060, if the City Clerk, upon receiving a complaint or other information indicating a possible violation of Chapter 1.16, determines that there is a prima facie showing of an ordinance violation by an identified party, she may issue a Notice of Violation to the identified party. Section 1. 16.060 provides the alleged violator with the opportunity to request a speedy hearing before an administrative hearing officer to contest the Notice of Violation, and directs the City Attorney to establish a panel of volunteer hearing officers for this purpose. The City Attorney has contacted several local attorneys who have volunteered to constitute the hearing officer panel for these hearings. Section 1. 16.060 also provides that the City Council will adopt guidelines and procedures to apply to such administrative hearings. Therefore, the City Attorney's office has prepared the attached resolution adopting a proposed "Statement of Rights and Procedures for Administrative Hearings under San Rafael Municipal Code Chapter 1.16." The proposed procedures are similar to those currently provided for Code Enforcement hearings, and call for an informal evidentiary hearing and a written decision based upon all the evidence presented. Resolution Establishing a Schedule of Administrative Penalties for Violations of San Rafael MUmCi-0-1 a, Code Chapter 1.16. Enforcement of violations of Chapter 1.16 would be subject to monetary penalties to be set by the Council not to exceed $500 per violation (the limit set by the City's Charter). Staff has prepared the attached resolution establishing the amount of such penalties. In general, staff has recommended a penalty of $250 for the first violation of any requirement of Chapter 1. 16, with second and subsequent penalties within the same election cycle subject to a penalty of $500 per violation. However, for clarity in future administration of the regulations, staff is recommending that violations of Section 1.16.050 be called out separately. Section 1.16.050 requires that specified disclosures be included in television or radio broadcasts, telephone calls, and campaign literature mailings. Therefore, there could be multiple telephone calls or mailings by the same person, each of which has omitted the required disclosures; and the question would arise whether there is one violation of the ordinance, or whether each telephone call and piece of mail constitutes a separate violation. Staff therefore recommends that the penalty schedule expressly state that the penalty will be assessed on each telephone call, television or radio broadcast, or piece of mail, funded by an independent expenditure, but that a maximum limit be set for the total penalty in the amount of $5,000, which is equivalent to 20 individual violations. FISCAL IMPACT: The City will bear the cost of administrative hearings held pursuant to Chapter 1. 16. subject to offset by any penalty amounts imposed and collected. SAN RAFAEL CITY COUNCIL AGENDA REPORT / Page: 3 ,#1" [020 L The City Council has the following options to consider in this matter: 1. Adopt the resolutions as proposed. 2. Continue action on the proposed resolutions and direct staff to make further modifications to the hearing procedures and/or schedule of penalties. 3. Do not adopt the resolutions. ACTION REQUIRED: 1. Adopt the Resolution attached as Attachment 1, Establishing Procedures for Administrative Hearings on Violations of San Rafael Municipal Code Chapter 1.16 Regulating Disclosure and Reporting of Independent Expenditures in City Elections. 2. Adopt the Resolution attached as Attachment 2, Establishing a Schedule of Administrative Penalties for Violations of San Rafael Municipal Code Chapter 1.16 Regulating Disclosure and Reporting of Independent Expenditures in City Elections. ATTACHMENTS: 1. Resolution Establishing Procedures, etc., with attached "Exhibit A." 2. Resolution Establishing a Schedule of Penalties, etc. RESOLUTION NO. 13226 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SAN RAFAEL ESTABLISHING PROCEDURES FOR ADMINISTRATIVE HEARINGS ON VIOLATIONS OF SAN RAFAEL MUNICIPAL CODE CHAPTER 1.16 REGULATING DISCLOSURE AND REPORTING OF INDEPENDENT EXPENDITURES IN CITY ELECTIONS WHEREAS, on September 7, 2010, the San Rafael City Council adopted Ordinance No. 1887 adding Chapter 1.16 to the San Rafael Municipal Code establishing disclosure and reporting requirements for independent expenditures made in City elections; and WHEREAS, San Rafael Municipal Code Section 1.16.060 provides that a person receiving a Notice of Violation of Chapter 1.16 from the City Clerk may request an administrative hearing to contest the Notice of Violation; and WHEREAS, Section 1.16.060 authorizes the City Attorney to establish a panel of volunteers to act as impartial hearing officers for hearings requested under Section 1.16.060; and WHEREAS, the City Council wishes to establish guidelines to be followed by the hearing officers in conducting administrative hearings, pursuant to Section 1.16.060. NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of San Rafael that it hereby approves the "Statement of Rights and Procedures for Administrative Hearings Under San Rafael Municipal Code Chapter 1.16" attached hereto as Exhibit "A" and incorporated herein by reference. I, ESTHER C. BEIRNE, Clerk of the City of San Rafael, hereby certify that the foregoing Resolution was duly and regularly introduced and adopted at a regular meeting of the City Council of the City of San Rafael, held on Monday, the 15`h day of August, 2011, by the following vote, to wit: ALES: COUNCILMEMBERS: ABSENT: COUNCILMEMBERS Brockbank, Connolly, Heller, Levine & Mayor Bora None None ESTHER C. BEIRNE, City Clerk EXHIBIT "A" STATEMENT OF RIGHTS AND PROCEDURES FOR ADMINISTRATIVE HEARINGS UNDER SAN RAFAEL MUNICIPAL CODE CHAPTER 1.16 *At the beginning of the administrative hearing, the Administrative Hearing Officer shall distribute and read aloud the following Statement of Rights and Procedures, which shall be applicable in the proceeding. Each of the Notice of Violation recipients present at the hearing shall be required to sign and return the Statement to the Administrative Hearing Officer at the beginning of his/her case. STATEMENT OF RIGHTS AND PROCEDURES The following shall apply with respect to any administrative hearing that is scheduled upon a contest of Notice of Violation under Chapter 1.16 of the San Rafael Municipal Code: 1. An administrative hearing on a contest of a Notice of Violation will be heard by an Administrative Hearing Officer scheduled to hear the contest, at the time and place indicated on the Notice of Hearing sent to the contesting recipient of the Notice of Violation (hereafter the "Contestant"). 2. A Contestant may request the disqualification of an Administrative Hearing Officer on the grounds of bias, by submitting a written request with the specified grounds for disqualification to the City Clerk no later than two (2) days after the date of the Notice of Hearing. The City Clerk will advise the Contestant in writing if the disqualification request has been granted or denied. If at any time the Administrative Hearing Officer believes that he or she may have a bias for or against a particular Contestant, the Administrative Hearing Officer shall disqualify himself or herself. 3. The administrative hearing is an informal proceeding; formal rules of evidence do not apply. A Contestant may testify and have other witnesses testify on his or her behalf, and may submit any additional evidence, in support of the contest of the Notice of Violation. Such additional evidence includes, but is not limited to, records, documents, and photographs. 4. The Contestant and any other witness appearing at the hearing shall be required to swear an oath or affirmation as to the truthfulness of the testimony under penalty of perjury, and shall give their names and addresses for the record. 5. The Contestant may have a representative make a presentation on his or her behalf at the hearing. 6. The Administrative Hearing Officer shall make a decision based upon all the evidence presented. The Notice of Violation and any staff report submitted to the Administrative Hearing Officer shall constitute prima facie evidence of the respective facts contained in those documents. This means that unless a clear error or defect appears on the face of these documents, a violation will be deemed to exist, subject to the Contestant's evidence. To prevail in the case, the Notice of Violation recipient must present evidence which has a greater weight when weighed against the evidence opposing it, and which has more convincing force or greater probability of truth. 7. The Administrative Hearing Officer's Decision on the contest of the Notice of Violation will be mailed to the Contestant within five (5) days after the conclusion of the hearing. If the Decision indicates that the Notice of Violation will be upheld, the Decision shall indicate a penalty amount and payment schedule for the fine. 8. The Contestant may appeal the Administrative Hearing Officer's Decision, by filing a Notice of Appeal with the Marin County Superior Court pursuant to the procedures specified in Government Code Section 53069.4. ACKNOWLEDGMENT OF RECEIPT The undersigned acknowledges that he/she has been advised and has received a copy of the foregoing Statement of Rights and Procedures. Dated: [Signature of Contestant] [Printed name of Contestant] RESOLUTION NO. 13227 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SAN RAFAEL ESTABLISHING A SCHEDULE OF ADMINISTRATIVE PENALTIES FOR VIOLATIONS OF SAN RAFAEL MUNICIPAL CODE CHAPTER 1.16 CONCERNING DISCLOSURE AND REPORTING OF INDEPENDENT EXPENDITURES IN CITY ELECTIONS THE CITY COUNCIL OF THE CITY OF SAN RAFAEL RESOLVES AS FOLLOWS: WHEREAS, San Rafael Municipal Code Chapter 1.16 imposes certain disclosure and reporting requirements on persons making, and communications funded by, "independent expenditures" as defined in that Chapter; and WHEREAS, San Rafael Municipal Code Section 1.16.060 provides that violations of Chapter 1.16 may be punished by imposition of administrative penalties in a sum not to exceed five hundred dollars ($500) per violation; and WHEREAS, The City Council desires to adopt a schedule of administrative penalties applicable to violations of Chapter 1.16; and WHEREAS, The City Council has determined that the administrative penalties set forth herein are fair and reasonable; and WHEREAS, the City Council finds that approval of a schedule of administrative penalties is categorically exempt under the California Environmental Quality Act pursuant to 14 Cal. Code of Regulations Section 15321 (a), as an action related to the enforcement of regulations administered by the City. NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF SAN RAFAEL RESOLVES THAT the schedule of administrative penalties for violations of San Rafael Municipal Code Chapter 1.16 shall be as follows; Violation of Section 1.16.050, per campaign $250 up to a maximum of $5,000 communication, including but not limited to, each telephone call, television or radio broadcast, or piece of mail, financed with the independent I expenditure. First violation, any other section. $250 Second and subsequent violations related to the $500 � same election, any other section � 1 41- 1, ESTHER C. BEIRNE, Clerk of the City of San Rafael, hereby certify that the foregoing Resolution was duly and regularly introduced and adopted at a regular meeting of the City Council of said City held on the 15`h day of August, 2011 by the following vote, to wit: AYES: COUNCILMEMBERS NOES: COUNCILMEMBERS: ABSENT: COUNCILMEMBERS: Brockbank, Connolly, Heller, Levine & Mayor Boro None None N ESTHER C. BEIRNE, City Clerk ROUTING SLIP FOR APPROVAL OF CONTRACTS / AGREEMENTS / ORDINANCES / RESOLUTIONS INSTRUCTIONS: USE THIS FORM WITH EACH SUBMITTAL OF ORIGINAL, CONTRACT / AGREEMENT / ORDINANCE / RESOLUTION BEFORE APPROVAL BY COUNCIL / AGENCY. SRR -A / SRCC AGENDA ITEM NO: DATE OF MEETING: August 15, 2011 @-- p, r I' FROM: Lisa A. Goldfien tuIVE, DATE: August 9, 2011 .r-.4 ORIGINATING DEPARTMENT: City Attorney TITLE OF DOCUMENT: 1. Consideration of a Resolution Establishing Procedures for Administrative Hearings on Violations of San Rafael Municipal Code Chapter 1.16 Regulating Disclosure and Reporting of Independent Expenditures in City Elections. 2. Consideration of a Resolution Establishing a Schedule of Administrative Penalties for Violations of San Rafael Municipal Code Chapter 1.16 Regulating Disclosure and Reporting of Independent Expenditures in City Elections. Robert F. Eps $ein, City Attorney (LOWER HALF OF FORM FOR APPROVALS ONLY) Review '31 b fCity Manager Executive Director APPROVED AS TO FORM: Q Appr yed'as Coulicifi/ Agency Agenda Item City Attorney (Signat4re) 7 REMARKS: