Chapter 1.40
DISCLOSURE OF CONTRIBUTIONS AND EXPENDITURES IN CANDIDATE AND BALLOT MEASURE ELECTIONS
Sections:
1.40.040 Additional campaign statements.
1.40.050 Supplemental independent expenditure reports in candidate elections.
1.40.060 Independent expenditures in 45 days preceding election.
1.40.070 Disclaimer requirements for campaign communications funded by independent expenditures.
1.40.080 Disclosures on campaign advertisements.
1.40.090 Ballot measure finance disclosure.
1.40.100 Contributor occupation and employer.
1.40.110 Campaign literature – Filing with city clerk.
1.40.130 Disclaimers on campaign communications.
1.40.150 Duties of city clerk and city attorney.
1.40.010 Purpose.
This chapter is intended to supplement the Political Reform Act of 1974. (Ord. 20-04 § 1 (Att. 1); Ord. 20-02 § 1 (Att. 1); Ord. 09-08 § 1; Ord. 07-18 § 1).
1.40.020 Definitions.
The definitions set forth in the Political Reform Act of 1974 as amended (Government Code Sections 82000 through 82055) shall govern the interpretation of this chapter, unless otherwise specified herein.
“Political action committee” shall mean any political committee organized for the purpose of raising and spending money to elect and defeat candidates, legislation, or ballot measures and initiatives. Political action committees shall include independent expenditure committees, primarily formed recipient committees, and general purpose recipient committees. Political action committees shall not include controlled committees. (Ord. 20-04 § 1 (Att. 1); Ord. 20-02 § 1 (Att. 1); Ord. 09-08 § 1; Ord. 07-18 § 1).
1.40.030 Application.
This chapter shall apply to all election campaigns including campaigns for mayor and city council, citizen initiatives, referenda, recalls and all other city ballot measures. (Ord. 20-04 § 1 (Att. 1); Ord. 20-02 § 1 (Att. 1)).
1.40.040 Additional campaign statements.
A. In addition to the campaign statements required to be filed pursuant to the Political Reform Act, commencing with Government Code Section 8100, as amended, candidates for mayor and city council, their controlled committees and committees primarily formed to support or oppose these candidates shall file an additional pre-election statement by 4:30 p.m. on the Wednesday immediately preceding the election. This statement shall have a closing date of the prior Sunday and shall cover activity and payments occurring from the closing date of the last report filed by the candidate or committee through and including that Sunday.
B. In addition to the campaign statements required to be filed pursuant to the Political Reform Act, commencing with Government Code Section 8100, as amended, candidates for mayor and city council, their controlled committees and committees primarily formed to support or oppose these candidates shall file a post-election statement by 4:30 p.m. on the Friday immediately following the election. This statement shall include all activity and payments occurring from the closing date of the last report filed by the candidate or committee through and including Election Day. (Ord. 20-04 § 1 (Att. 1); Ord. 20-02 § 1 (Att. 1); Ord. 09-08 § 1; Ord. 07-18 § 1. Formerly 1.40.030).
1.40.050 Supplemental independent expenditure reports in candidate elections.
Any person or committee making independent expenditures totaling $1,000 or more in a calendar year, supporting or opposing a candidate for mayor or city council, regardless of where or when it files its campaign reports under the Political Reform Act, the Federal Election Campaign Act, or any similar law, shall file a California Supplemental Independent Expenditure Report (Form 465) with the city clerk at the same time as the mayoral and city council candidates, covering the same period and disclosing the information required by that statement. (Ord. 20-04 § 1 (Att. 1); Ord. 20-02 § 1 (Att. 1); Ord. 09-08 § 1; Ord. 07-18 § 1. Formerly 1.40.040).
1.40.060 Independent expenditures in 45 days preceding election.
A. Disclosure of Expenditures. Any person, including any committee, that makes or incurs independent expenditures of $1,000 or more in support of or in opposition to any city measure or candidate for mayor or city council, in the 45 days before an election in which the measure or candidate appears on the ballot, shall notify the city clerk within 24 hours by personal delivery, fax or email each time one or more expenditures which meet this threshold are made.
B. Contents of Notice.
1. The notice shall specify:
a. Each candidate or measure supported or opposed by the expenditure;
b. The amount spent to support or oppose each candidate or measure;
c. Whether the candidate or measure was supported or opposed;
d. The date and amount of each expenditure;
e. A description of the type of communication for which the expenditure was made;
f. The name and address of the person making the expenditure; and
g. The name and address of the payee.
2. The notice shall include a statement that the expenditure was not made at the behest of any candidate or ballot measure proponent who benefited from the expenditure.
3. The notice shall be signed under penalty of perjury by both a responsible officer and the treasurer of the committee making the expenditure.
C. Notification to Candidates of Expenditures. The city clerk will notify all candidates by fax or email in the affected race within one business day after receiving the notice of independent expenditures of $1,000 or more. The notification will indicate the candidate who was supported or opposed by the expenditure and include a copy of the communication provided by the person or group making the expenditure.
D. Exemption for Regularly Published Newsletters. For purposes of the notification required by subsection (A) of this section, payments by an organization for its regularly published newsletter or periodical, if the circulation is limited to the organization’s members, employees, shareholders, other affiliated individuals and those who request or purchase the publication, shall not be required to be reported. (Ord. 20-04 § 1 (Att. 1); Ord. 20-02 § 1 (Att. 1); Ord. 09-08 § 1. Formerly 1.40.041).
1.40.070 Disclaimer requirements for campaign communications funded by independent expenditures.
A. Campaign communications funded by an independent expenditure supporting or opposing city candidates or city measures shall include the phrase “Not authorized by a candidate,” and shall also include the name of any contributor of $2,500 or more made in the past six months to a committee funding the independent expenditure, in the phrase “Major Funding Provided By [Name of Contributor(s)].” Expenditures of $2,500 or more that are earmarked for any other candidate or ballot measure outside of the city of Benicia need not be disclosed.
B. The disclosures required by this section shall be presented in a clear and conspicuous manner to give the reader, observer or listener adequate notice, as specified below:
1. For printed campaign communications that measure no more than 24 inches by 36 inches, all disclosure statements required by this section shall be printed using a typeface that is easily legible to an average reader or viewer, but is not less than 10-point type in contrasting color to the background on which it appears. For printed campaign communications larger than this size in area, all disclosure statements shall constitute at least five percent of the height of the material and shall be printed in contrasting color.
2. For video broadcasts including television, satellite and cable campaign communications, the information shall be both written and spoken either at the beginning or at the end of the communication, except that if the disclosure statement is written for at least five seconds of a broadcast of 30 seconds or less or 10 seconds of a 60-second broadcast, a spoken disclosure statement is not required. The written disclosure statement shall be of sufficient size to be readily legible to an average viewer and air for not less than four seconds.
3. For audio, telephone call or radio advertisement campaign communications, the disclosures shall be spoken in a clearly audible manner at the same speed and volume as the rest of the telephone call or radio advertisement at the beginning or end of the communication and shall last at least three seconds.
C. For purposes of this section, “campaign communication” means any of the following items:
1. More than 200 substantially similar pieces of campaign literature distributed within a calendar month, including but not limited to mailers, flyers, faxes, pamphlets, door hangers, emails, campaign buttons 10 inches in diameter or larger, and bumper stickers 60 square inches or larger;
2. Posters, yard or street signs, billboards, supergraphic signs and similar items;
3. Television, cable, satellite and radio broadcasts;
4. Newspaper, magazine, Internet website banners and similar advertisements;
5. Two hundred or more substantially similar live or recorded telephone calls made within a calendar month.
D. For purposes of this section, “campaign communication” does not include: small promotional items such as pens, pencils, clothing, mugs, potholders, skywriting or other items on which the statement required by this section cannot be reasonably printed or displayed in an easily legible typeface; communications paid for by a newspaper, radio station, television station or other recognized news medium; and communications from an organization to its members other than a communication from a political party to its members.
E. The disclaimer on campaign communications must be updated when a new person qualifies as a disclosable contributor or when the committee’s name changes. Broadcast advertisement disclosures must be amended within five calendar days after a new person qualifies as a disclosable contributor or a committee’s name changes.
A committee shall be deemed to have complied with this section if the amended advertisement is mailed, containing a request that the advertisement immediately be replaced, to all affected broadcast stations by overnight mail no later than the fifth day. For printed campaign communications and other material, disclosure information must be amended to reflect accurate disclosure information every time an order to reproduce the communication is placed. (Ord. 20-04 § 1 (Att. 1); Ord. 20-02 § 1 (Att. 1); Ord. 09-08 § 1. Formerly 1.40.042).
1.40.080 Disclosures on campaign advertisements.
A. Subject to any additional requirements and exceptions set forth in this chapter, and limited to advertisements concerning city candidates and city measures, the campaign advertising disclosure rules included in the Political Reform Act of 1974, as amended, including but not limited to California Government Code Sections 84305 through 84511, and the regulations of the California Fair Political Practices Commission, as amended, are adopted by reference and incorporated into this code as if fully set forth herein.
B. When a political action committee is required to make a “paid for by” advertising disclosure under state law, the political action committee shall also include a disclosure statement identifying its top three contributors in the following manner:
1. The disclosure statement shall include the text “top contributors” immediately followed by the names of the top three contributors to the political action committee. For purposes of this section “top contributors” means the persons or committees from whom a political action committee has received its three highest cumulative contributions, regardless of contribution amount.
2. The disclosure statement shall be made on campaign literature, visual electronic media communications, and newspaper and periodical advertisements immediately below and in the same font size and format as the “paid for by” disclosure. (Ord. 20-04 § 1 (Att. 1)).
1.40.085 Access to records.
All campaign reports required to be filed by any candidate or committee with the city clerk shall be scanned and stored in .pdf format. The reports shall be posted on the city’s website no later than two working days after filing. (Ord. 20-04 § 1 (Att. 1); Ord. 20-02 § 1 (Att. 1); Ord. 09-08 § 1; Ord. 07-18 § 1. Formerly 1.40.080).
1.40.090 Ballot measure finance disclosure.
Unless otherwise indicated, if a recall, referendum or initiative petition impacting city elected officials or city law is filed, the proponent shall be subject to the same provisions of this chapter as are applicable to candidates for elective city office, and any committee supporting or opposing the measure shall be subject to the same disclosure provisions as are applicable to committees making contributions or expenditures in connection with city candidate elections. (Ord. 20-04 § 1 (Att. 1); Ord. 20-02 § 1 (Att. 1); Ord. 09-08 § 1. Formerly 1.40.060).
1.40.100 Contributor occupation and employer.
No contribution shall be deposited into a campaign checking account of a candidate for mayor or city council unless the name, address, occupation and employer of the contributor are on file in the records of the recipient of the contribution. (Ord. 20-04 § 1 (Att. 1); Ord. 20-02 § 1 (Att. 1); Ord. 09-08 § 1. Formerly 1.40.070).
1.40.110 Campaign literature – Filing with city clerk.
An independent expenditure committee that makes an expenditure for 200 or more recorded telephone calls or any other forms of electronic or facsimile transmission of substantially similar content, or that makes an expenditure of $1,000 or more for a radio or television advertisement, or that mails or otherwise distributes more than 200 substantially similar pieces of campaign literature in support of or opposition to any candidate for mayor or city council, shall give a copy of the literature or script used for each communication to the city clerk within 24 hours of the first time the mailings, calls, transmissions, or advertisements are made or aired. (Ord. 20-04 § 1 (Att. 1); Ord. 20-02 § 1 (Att. 1); Ord. 09-08 § 1. Formerly 1.40.080).
1.40.120 Recordkeeping.
Candidates for mayor and city council, and committee treasurers, shall maintain such detailed accounts, records, invoices and receipts as are necessary to prepare campaign statements and to comply with the Political Reform Act, the regulations of the Fair Political Practices Commission and this chapter. (Ord. 20-04 § 1 (Att. 1); Ord. 20-02 § 1 (Att. 1); Ord. 09-08 § 1. Formerly 1.40.090).
1.40.130 Disclaimers on campaign communications.
Any committee who mails or otherwise distributes more than 200 substantially similar pieces of campaign literature shall print, display or incorporate the following words anywhere within the communication: “Paid for by” immediately followed by the name, address and city of that committee. If the sender of a mass mailing is a controlled committee, the name of the person controlling the committee shall also be included. If an acronym is used to specify a committee name, the full name of any sponsoring organization of the committee shall be included in the campaign communication disclaimer required by this section. (Ord. 20-04 § 1 (Att. 1); Ord. 20-02 § 1 (Att. 1); Ord. 09-08 § 1. Formerly 1.40.100).
1.40.140 Persuasive polls.
A. For purposes of this section, the following terms shall have the following meanings:
1. “Persuasive poll” shall mean any survey or series of surveys made by telephone, mail, text, email or other electronic means that refer to a clearly identified candidate for city elective office and for which two of the following three criteria are true:
a. The survey includes an untrue statement about a candidate for city elective office;
b. The person(s) conducting or responsible for the survey do not collect or tabulate survey results for all of the surveys;
c. The survey is designed or intentionally conducted in a manner calculated to influence the vote of the respondent.
Persuasive polls are expenditures as that term is used in the Political Reform Act of 1974 (the “Act”) and therefore subject to all disclosure requirements, including but not limited to political advertisement disclosure requirements, established by the Act. A scientific poll is not a persuasive poll regardless of whether the poll meets the standards of subsections (A)(1)(a) through (c) of this section.
2. “Scientific poll” shall mean any survey or series of surveys made by telephone, mail, text, email or other electronic means targeted at a random sampling of the population in order to obtain statistical data on opinions regarding a candidate(s) for city elective office.
B. Disclosure Statement Required.
1. Any person who authorizes, administers or makes payment for a persuasive poll shall, within 24 hours after initiation of said persuasive poll, file a disclosure statement with the city clerk of the city of Benicia which statement shall include the following information:
a. The dates during which the persuasive poll was conducted;
b. The complete script used in conducting the persuasive poll, including every question asked in the survey and every statement made to respondents in the survey;
c. Verification, under penalty of perjury, as to the accuracy and completeness of the information provided in the disclosure statement.
2. A person authorizing, administering or making payment for a persuasive poll is not required to file a disclosure statement under this section if the person is aware that another person authorizing, administering or making payment for the same persuasive poll has filed a disclosure statement for the persuasive poll as required by this section.
C. Determination of Persuasive Poll.
1. If, pursuant to a complaint or notification by any person, the city attorney becomes aware that a persuasive poll has been made, and a disclosure statement has not been filed pursuant to subsection (B) of this section, the city attorney may recommend that a qualified independent hearing officer, who is neither an employee nor official of the city, conduct a hearing to determine whether a persuasive poll has been made and a disclosure statement need be filed.
2. The qualified independent hearing officer shall be an attorney with at least five years of experience in political or election law. The qualified independent hearing officer shall be one of the following:
a. A former commissioner of the Fair Political Practices Commission;
b. A former full-time staff member of the Fair Political Practices Commission; or
c. A member in good standing with the California Political Attorneys Association and with at least five years of experience in election law.
3. In making its determination as to whether a persuasive poll has been made and a disclosure statement need be filed, the hearing officer shall make findings, based on evidence presented to it, which findings establish whether or not a poll amounts to a persuasive poll as that term is defined in subsection (A) of this section. Notwithstanding Chapter 1.44 BMC, the determination of the hearing officer shall be final and not subject to appeal. (Ord. 20-04 § 1 (Att. 1); Ord. 20-02 § 1 (Att. 1)).
1.40.150 Duties of city clerk and city attorney.
The city clerk shall administer the provisions of this section. In addition to other duties required under this chapter, the clerk shall:
A. Report apparent violations of this section and applicable state law to the city attorney.
B. Conduct audits of reports and statements filed by candidates and committees supporting or opposing candidates for mayor and city council, as well as proponents and committees supporting or opposing city ballot measures. The city clerk may employ or contract with auditors when necessary to audit reports filed under this chapter.
C. The city attorney and city clerk may subpoena witnesses, compel their attendance and testimony, administer oaths and affirmations, take evidence and require by subpoena the production of any books, papers, records or other items necessary to the audit and investigation of candidates and committees. (Ord. 20-04 § 1 (Att. 1); Ord. 20-02 § 1 (Att. 1); Ord. 09-08 § 1. Formerly 1.40.110).
1.40.160 Enforcement.
A. Criminal Enforcement. Any person who knowingly or willfully violates any provisions of this chapter is guilty of a misdemeanor. Any person who causes any other person to violate any provision of this chapter, or who aids and abets any other person in the violation of any provision of this chapter, shall be liable under the provisions of this section. Prosecution for violation of any provision of this chapter must be commenced within two years after the date on which the violation occurred.
B. Civil Enforcement.
1. Any person who intentionally or negligently violates any provision of this chapter shall be liable in a civil action brought by the city attorney. Where no specific civil penalty is provided, a person may be liable for an amount up to $2,000 for each violation.
2. Any person who intentionally or negligently makes or receives a contribution, or makes an expenditure, in violation of any provision of this chapter shall be liable in a civil action brought by the city attorney for an amount up to three times the amount of the unlawful contribution or expenditure.
3. If two or more persons are responsible for any violation, they shall be jointly and severally liable.
4. In determining the amount of liability under this subsection, the court may take into account any mitigating factors and any aggravating factors.
5. No civil action alleging a violation of this chapter shall commence more than two years after the date of the election for which the funds at issue were contributed or expended. (Ord. 20-04 § 1 (Att. 1); Ord. 20-02 § 1 (Att. 1); Ord. 09-08 § 1. Formerly 1.40.120).
1.40.170 Verification.
All notices, reports and statements filed under this chapter shall be signed and verified by the filer under penalty of perjury. The person signing shall read, know and understand the contents of all such documents. (Ord. 20-04 § 1 (Att. 1); Ord. 20-02 § 1 (Att. 1); Ord. 09-08 § 1. Formerly 1.40.140).
1.40.180 Injunction.
The city attorney on behalf of the people of the city of Benicia may sue for injunctive relief to enjoin violations or threatened violations or to compel compliance with the provisions of this chapter. (Ord. 20-04 § 1 (Att. 1); Ord. 20-02 § 1 (Att. 1); Ord. 09-08 § 1. Formerly 1.40.150).