Chapter 2.90 ELECTIONS

Chapter 2.90
ELECTIONS

Sections:

2.90.010 Write-in candidate affidavit.

A. The city of Gunnison hereby adopts the provisions of Section 31-10-306, C.R.S., and ordains that no write-in vote for any municipal office shall be counted unless an affidavit of intent has been filed with the clerk by the person whose name is written in prior to 64 days before the day of the election indicating that such person desires the office and is qualified to assume the duties of that office if elected.

B. The city of Gunnison adopts the provisions of Section 31-10-306, C.R.S., as such may be amended. (Ord. 3-2017 §§ 1, 2).

2.90.020 Campaign finance complaints.

A. Definitions. For the purposes of this section the following terms, phrases, words, and their derivatives shall have the meanings given in this section:

“Clerk” shall mean the city clerk of the city of Gunnison or that person’s designee.

“Discoverable” shall mean when the complainant knew or should have known, by the exercise of reasonable diligence, of the alleged violation.

“FCPA” shall mean the Fair Campaign Practices Act, Section 1-45-101 et seq., C.R.S., as amended from time to time.

“Hearing officer” shall mean a person retained by the city to conduct hearings.

B. Applicability. This section shall govern the processing and determination of all FCPA complaints related to city of Gunnison elections.

C. Complaints – Duties of the Clerk. Any person who believes a violation of Article 45 of Title 1, C.R.S., commonly known as the “Fair Campaign Practices Act,” has occurred related to a city election may file a complaint with the clerk.

1. File Complaint.

a. A complaint must be filed no later than 30 days after the violation is discoverable. A complaint must be in writing and shall include the following information:

i. The name, address, email address, telephone number and signature of the complainant. If the complainant is represented by counsel, include counsel’s name, registration number, address, email address, telephone number and signature.

ii. Name of each person or agency alleged to have committed a violation.

iii. Details about the alleged violation, including how and when complainant became aware of the alleged violation and what is known about the alleged violation.

iv. Documentation or other evidence supporting the allegations in the complaint.

b. A complaint is deemed filed when all of the information required in subsection (C)(1)(a) of this section has been received by the clerk.

2. Initial Review.

a. The clerk will review the complaint to determine the following:

i. Whether the complaint was timely filed;

ii. Whether the complainant has specifically alleged a violation of the FCPA;

iii. Whether the complainant has alleged sufficient facts and/or provided sufficient information to support a legal and factual basis for the complaint.

b. The clerk shall notify the respondent of the complaint by email or by regular mail if email is not available.

c. Within 15 business days of the complaint being filed, the clerk must take one or more of the following actions:

i. Dismiss the complaint if the clerk determines the complaint was not timely filed, has not specifically identified one or more violations, or the complainant did not assert facts or provide information sufficient to support an alleged violation. The clerk will notify complainant and respondent of the reasons for dismissal in writing, and the clerk’s decision is a final decision.

ii. Issue a notice to cure if the clerk determines that the complaint demonstrates one or more curable violations, described in subsection (C)(3) of this section, and provide a notice and opportunity for the respondent to cure the violation.

iii. Refer the matter to an independent hearing officer per subsection (C)(4) of this section if (A) the clerk determines the complaint alleges one or more violations that are not curable, (B) a hearing is needed to ascertain the facts, applicable law, or other information sufficient to support the alleged violations, (C) the clerk has determined the respondent did not substantially comply with the notice to cure, or (D) the respondent is the city of Gunnison.

iv. Where necessary, the clerk may promulgate any rules necessary for the proper administration of FCPA complaints, cures, and hearings including, but not limited to, any rules necessary to ensure the complaint, cure, and hearing process is a simplified and a scalable process designed to enhance the just, speedy, and efficient determination of complaints.

3. Curing Violations.

a. Upon the clerk’s determination that a complaint alleges a curable violation, the clerk will notify the respondent by email, or by mail if email is unavailable, of the curable deficiencies alleged in the complaint.

i. Respondent shall have 15 business days from the date the notice is emailed or mailed to cure any deficiencies specified in the notice.

ii. The clerk will determine, within five business days of the date specified for cure, whether the respondent cured the violation(s), or whether the respondent(s) substantially complied.

(A) If the clerk determines that the respondent substantially complied to cure the violation, the clerk shall dismiss the complaint.

(B) If the clerk determines that the respondent did not substantially comply, the clerk shall follow the procedure set forth in subsection (C)(4) of this section.

(1) The extent of the respondent’s noncompliance;

(2) The purpose of the provision violated and whether that purpose was substantially achieved despite the noncompliance; and

(3) Whether the noncompliance may properly be viewed as an intentional attempt to mislead the electorate or election officials.

iii. The clerk’s determination is a final decision subject to review under Rule 106, C.R.C.P.

4. Referral for Hearing.

a. When the clerk determines a complaint has alleged sufficient facts and/or provided sufficient information to support an alleged violation that is not curable, the clerk has determined the respondent did not substantially comply with the notice to cure, or the respondent is the city of Gunnison, the clerk shall notify the city manager of the complaint. The city manager, in consultation with the city attorney, shall refer the complaint to an independent hearing officer to hear and determine such complaint.

i. A hearing before the hearing officer will be scheduled as soon as practicable, but no later than 30 business days after referral, unless the hearing officer determines that more time is necessary to properly prepare for and hold the hearing.

ii. Notice of the hearing will be sent to the complainant, respondent and hearing officer, who shall also receive a copy of the entire complaint, within 10 business days of the referral to the hearing officer.

iii. The hearing officer shall set the procedure for the hearing, the schedule for identification and submission of documents, exhibits, and any other matters related to the hearing. The hearing shall be electronically recorded. The complainant and respondent shall be afforded the opportunity to be present. The hearing officer is entitled to request the submission of additional documentation and argument.

iv. Upon conclusion of the hearing, the hearing officer shall endeavor to render a decision in writing within 15 business days.

v. If the hearing officer determines that a violation of the FCPA has occurred, the hearing officer shall issue appropriate orders as follows:

(A) Order the person, agency or entity who made the contribution, received funds, or made an expenditure in violation of the FCPA to pay the city in an amount to be determined. The order shall include the time frame under which any reimbursement must be made. The city shall deposit funds received into its general fund.

(B) If the city is respondent, the city shall not be required to reimburse funds to the city. The hearing officer will enter such further orders as deemed appropriate for the city.

(C) No financial penalty or relief may be required if agreed upon by all parties to the satisfaction of the hearing officer.

(D) The hearing officer’s determination is a final decision subject to review under Rule 106, C.R.C.P.

(E) A party in any action brought to enforce the provisions of the FCPA or this section is entitled to the recovery of the party’s reasonable attorney fees and costs from any attorney or party who has brought or defended the action, either in whole or in part, upon a determination by the hearing officer that the action, or any part thereof, lacked substantial justification or that the action, or any part thereof, was commenced for delay or harassment or if it finds that an attorney or party unnecessarily expanded the proceeding by other improper conduct, including abuses of discovery procedures available under the Colorado Rules of Civil Procedure.

(F) Civil penalties may be collected in any manner authorized by law, included filing a civil action in municipal or state court or using a private collection agency. The city attorney shall be authorized to proceed with all judgment execution and collection procedures authorized by law, including interest if not paid within the time frame established by the hearing officer’s decision. (Ord. 12-2023 § 1).