Ord 737ORDINANCE NO. 737
AN ORDINANCE OF THE CITY OF POWAY, CALIFORNIA, REPEALING
CHAPTER 2.28 OF THE POWAY MUNICIPAL CODE AND ADDING A NEW
CHAPTER 2.28 OF THE POWAY MUNICIPAL CODE REGULATING CAMPAIGN
CONTRIBUTIONS AND REPORTING IN MUNICIPAL ELECTIONS
NOW THEREFORE, THE CITY COUNCIL OF THE CITY OF POWAY DOES
ORDAIN AS FOLLOWS:
Section 1: Chapter 2.28 of the Poway Municipal Code is hereby repealed.
Section 2: Chapter 2.28, "Campaign Contributions and Expenditures," is hereby added
to Title 2 of the Poway Municipal Code to read as follows:
Chapter 2.28
CAMPAIGN CONTRIBUTIONS AND EXPENDITURES
2.28.010 Intent and purpose.
It is the intent of the City Council in enacting the ordinance codified in this
chapter to place realistic and enforceable limits on the amount individuals
may contribute to political campaigns in municipal elections, as well as to
supplement the requirements of State law with regard to the making and
reporting of campaign contributions and expenditures, for the purpose of
preventing the exercise by campaign contributors of potential undue or
improper influence over elected officials and to inform the public of the
sources and objects of campaign contributions and expenditures. The City
Council finds that municipal elections are municipal affairs and that the
regulation of campaign expenditures and contributions in municipal
elections is not preempted by general State law and is the proper subject
of municipal regulation under authority granted to cities by Article XI,
Section 7 of the California Constitution and Government Code Section
81013. The contribution limitations of this chapter shall not apply to ballot
measure elections or to that portion of a recall election in which the
electorate determines whether or not to recall an officeholder, but shall
apply to all candidate elections, including the candidate election portion of
a consolidated recall election. It is the intent of the City Council that this
chapter be interpreted in a manner consistent with Constitutional
requirements. Should any provision of this chapter be determined to be
invalid for any reason, the remainder shall be severed therefrom and shall
remain in full force and effect.
2.28.020 Definitions.
For the purposes of this chapter, the words and phrases used herein shall
have the meanings respectively ascribed to them by the Political Reform
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Act of 1974, as amended, Government Code Sections 82000 et seq.,
except as follows:
A. "Charitable organization" shall mean any bona fide charitable,
educational, civic, religious, or similar tax exempt nonprofit organization.
B. "Committee" shall have the meaning set forth in Government Code
Section 82013 as amended from time to time, except that all dollar limits
set forth therein shall be 1100.00 or more."
C. "Contribution" shall have the meaning set forth in Government Code
Section 82015, as amended from time to time, except that the exclusion
set forth therein for costs of a meeting or fund - raising event in the home or
office of the occupant shall be limited to costs of "$100.00 or less."
D. "Election" means any City general, special, initiative, referendum or
recall election.
E. "Entity" means any corporation, company, association, or other
organization other than an individual or a political party.
F. "Independent committee" means any committee which receives
contributions or makes expenditures for the purpose of influencing or
attempting to influence a City election which is neither controlled by a
candidate nor coordinates its expenditures with the expenditures of a
candidate or a committee controlled by a candidate.
G. "Individual" means a sole human being.
H. "Political party" means any organization qualified to participate in any
primary election in the State of California as set forth in California
Elections Code section 5100, or such law as may replace section 5100.
2.28.030 Limitations.
A. Contributions Generally.
1. Except as expressly provided in this section, no individual or political
party (including any controlled committee or independent committee) shall
make, nor shall any person solicit or accept, any contribution in aid of
and/or in opposition to the nomination or election of a candidate which will
cause the total amount contributed to (a) the candidate and any controlled
committee of such candidate, or to (b) any independent committee, by
such individual or political party in a single election to exceed $100.00.
2. The prohibition of subsection (A)(1) of this section shall not apply to any
independent committee which receives contributions to be expended in
the elections of more than one city.
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3. The $100.00 limitation of subsection (A)(1) of this section is not a
limitation upon expenditures and shall not limit the expenditures by any
candidate or any committee.
4. Spouses are two separate individuals for purposes of the contribution
limitation of subsection (A)(1) of this section.
5. a. Joint funding of campaign expenditures by two or more committees
shall not be deemed a contribution by any such committee to any
candidate provided that each such committee contributes equal amounts
to each such expenditure.
b. Any such joint expenditure shall cause any theretofore independent
committee participating therein to be deemed a controlled committee of
any and all candidates for whose benefit such joint expenditure is made.
c. Any independent committee which becomes a controlled committee by
reason of subsection (A)(5)(b) of this section shall be deemed a controlled
committee for purposes of the $100.00 limitation on contributions to the
committee, effective retroactive to the date upon which the first
contribution to such committee was received by such committee.
6. The $100.00 limitation of subsection (A)(1) of this section shall not
apply to a candidate in aid of himself or herself, or to any committee which
makes expenditures solely for the purpose of advocating the adoption or
defeat of a ballot measure or to any committee advocating or opposing the
recall of an officeholder. Said limitation shall apply to the candidate
election portion of a recall.
7. Subject to subsections (A)(5)(b) and (c) of this section, the $100.00
limitation of subsection (A)(1) of this section shall not apply to any
independent committee composed solely of:
a. One individual; or
b. One other person organized principally for a purpose other than
participating in or influencing an election or elections.
8. No person shall make a contribution anonymously or under an assumed
name. No person shall make a contribution on behalf of another person,
whether as agent, intermediary, or otherwise.
9. Contributions are not permitted to be retained by a candidate or any
committee when received from anonymous sources or from persons who
do not consent to having their name made known. Any such contributions
shall be refunded to the donor (if known) or (if unknown) shall be turned
over to the City Clerk and deposited to the City's treasury, in any event
within 72 hours of receipt.
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10. No committee shall make any expenditures to influence or attempt to
influence the voters in a City election if such committee has not complied
with the contribution limitations imposed by this chapter upon such
committees' receipt of funds.
B. Prohibited Activities.
1. No person or entity, other than an individual or political party, shall
make a contribution to any candidate or committee; provided, however,
that this section shall not apply to contributions made to a committee
which is organized solely for the purpose of supporting or opposing the
qualification for the ballot or adoption of one or more City measures.
2. No officer, employee, agent or attorney or other representative of a
person covered by this subsection shall aid, abet, advise, or participate in
a violation of this section.
3. No person shall knowingly accept a payment or contribution made in a
violation of this section.
4. If a committee treasurer is offered a contribution which would be in
excess of the limitation, the treasurer must refuse the contribution. If,
however, a contribution is deposited into the campaign trust account which
is in violation of this section, the treasurer shall report in writing within five
days of learning of the illegal nature of the contribution to the City Clerk
the facts surrounding such contribution. Any such contribution so
deposited shall be paid promptly, from available campaign funds, if any, to
the City, and shall be deposited in the general fund of the City.
2.28.040 Identification of expenditures by independent committees.
Independent committees which make expenditures for or against a
candidate shall indicate clearly on any material published, displayed or
broadcast the name of the independent committee and the fact that the
material was paid for by an independent committee, and the true name of
any person on whose behalf the expenditure is made if made as the agent
or intermediary of another. Every independent committee shall comply
with all of the reporting requirements imposed on candidates and
committees by this chapter, including both the contributions and the
expenditures made by such committee.
2.28.050 Election campaign accounts.
A. Election Campaign Account. Each candidate's campaign treasurer and
every committee, whether composed of the candidate alone, another
single individual, or otherwise, that receives or expends more than
$200.00, shall open a checking account at a State or Federally chartered
bank or savings and loan association. The account shall be identified as
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the election campaign account. The account number of each such account
shall be provided to the City Clerk in writing within 10 days of the opening
of such account. Any committee that receives or expends more than
$200.00 shall file with the City Clerk a statement of organization in
substantially the form required by State law not later than 10 days
following the opening of the election campaign account.
B. Deposit of Contributions. All campaign contributions accepted by a
campaign treasurer or committee shall be deposited within five days of
receipt into the election campaign account by the campaign treasurer,
committee or authorized agent thereof.
C. Expenditures. Campaign expenditures made after a checking account
is required to be opened shall be made only by checks drawn against the
election campaign account by the campaign treasurer, committee, or
authorized agent.
1. No campaign treasurer, committee, or authorized agent shall draw
checks against the election campaign account by the campaign treasurer,
committee, or authorized agent.
2. Funds in the election campaign account shall not be considered for any
purpose to be personal funds of a candidate, campaign treasurer, or any
other person. The funds shall be held in trust.
3. For purposes of this section, an expenditure shall be deemed made by
check drawn against the election campaign account if, (a) the maker of the
expenditures is reimbursed by such check, and (b) the expenditure is
reported by the candidate or committee, both within the time limits
required for reporting as provided in PMC 2.28.060(A).
D. Access to Records by City Clerk. The City Clerk shall have full access
during business hours to the bank's or savings and loan association's
records concerning all election campaign accounts.
E. Disbursements of Unexpended Campaign Funds. If the final campaign
statement for a candidate or any committee discloses an unexpended
surplus, the candidate or committee shall before the end of the post-
election reporting period, which is:
June 30 for elections held between January 1 and June 30;
December 31 for elections held between July 1 and December 31
disburse the whole of the surplus to a charitable organization provided,
however, that the candidate or committee shall not claim the donation as a
deduction from income for tax purposes. The candidate or committee, or
authorized agent thereof, shall file a campaign statement with the City
Clerk before the end of the post - election reporting period, verifying the
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closure and listing the donees of all disbursements authorized by this
section and the dollar amounts given to each donee. If the deadline is not
met, the campaign funds will become "surplus" at the end of the post-
election reporting period and may not be used to run for office.
F. Retention of Records. The candidate, committee or authorized agent
thereof, shall retain all campaign records for a period of four years after
the election.
2.28.060 Statements generally.
A. Required. Subject to Government Code Section 81009.5, each
candidate and each committee, including all independent committees,
shall file as a public record with the City Clerk, campaign statements
showing the amounts of contributions received and expenditures made
with respect to such election at the time required by the Political Reform
Act of 1974, as amended. The statements are to be completed on
campaign statement forms required to be filed by State law. Such
statements shall contain a declaration by the candidate or committee
chairperson that the candidate or committee has neither accepted nor
solicited any campaign contribution in excess of the limitations of or in
contravention of PMC 2.28.030. All such statements filed by independent
committees shall, in addition to all other requirements, identify each
candidate or measure for or against whom each reported expenditure was
made. Statements filed by independent committees shall be required to
report only those expenditures in connection with communications that
expressly advocate the election or defeat of a clearly identified candidate
or ballot measure.
B. Contributions. Each campaign statement shall show I the total
cumulative amount of contributions received during the period covered by
the statement from persons who have given $25.00 or less and the total
cumulative amount of contributions received during the period covered by
the statement from persons who have given a total of more than $25.00.
Each person who has contributed more than $25.00 shall be listed by
name, address, occupation, employer and amount contributed. The total
amount received from anonymous sources and for persons who have not
consented to publication shall be listed. In the event that any portion of the
contributions was received in connection with a fundraiser event, then the
statement shall list the gross receipts, the date and location of each event.
C. Expenditures Generally. Each campaign statement shall show the total
amount of expenditures made during the period covered by the statement
to persons who have received $25.00. Each person who has received a
total of more than $25.00 shall be listed by name and address, together
with a brief description of the purpose of the expenditures. Any
expenditure made on behalf of another person, whether as agent or
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intermediary or otherwise, shall be reported as such, including the true
name of the individual on whose behalf the expenditure was made.
D. Exemption. Nothing in this section shall impose upon any committee
which participates in elections in jurisdictions in addition to the City any
filing requirements additional to or different from those set forth in Chapter
4 of the Political Reform Act of 1974, so long as Government Code
Section 81009.5(b) prohibits the imposition of such different or additional
requirements on such committees.
2.28.070 Reporting threshold amount.
A candidate or committee need not file a campaign statement if neither the
cumulative receipts nor the cumulative expenditures exceed $200.00.
2.28.080 Media exemptions.
The provisions of this chapter shall not apply to any publication or
broadcast or to any news story, commentary or editorial distributed
through the facilities of a broadcasting station or bona fide newspaper,
magazine or other periodical publication. A news story, commentary or
editorial is not considered to be distributed through a bona fide
newspaper, magazine, or other periodical publication if:
A. Such publication is primarily for distribution to individuals affiliated by
membership or stock ownership with the person (other than an individual)
distributing it or causing it to be distributed; or
B. Such publication is not primarily for purchase by the public at
newsstands or paid by subscription; or
C. The news story, commentary or editorial is distributed by a person
(other than an individual) who devotes a substantial part of his activities to
attempting to influence the outcome of City elections, or to influence public
opinion with respect to matters of City policy or concern.
2.28.090 Suppliers of goods and services — Disclosure of records
required.
No person who supplies goods or services, or both goods and services, to
a candidate or committee for use in connection with the campaign of the
candidate or for or against a measure shall refuse to divulge or disclose to
the enforcement authority the record of any expenditures made by the
candidate or committee in payment for such goods or services, or both.
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2.28.100 Late filing of campaign statement.
A. If any person files a campaign statement after any deadline imposed by
this chapter, he or she shall, in addition to any other penalties or remedies
established in this chapter, be liable to the City Clerk in amounts as set
forth by State guidelines until the statement is filed.
B. The City Clerk shall deposit any funds received under this section into
the general fund of the City to defray the cost of municipal elections.
2.28.110 Enforcement.
A. The City Attorney shall not investigate or prosecute any alleged
violation of this chapter, but shall defend the constitutionality and legality
of this chapter in any civil proceeding in which the City or the City Council
is a party.
B. Review of complaints of violation of this chapter and criminal
prosecution thereof shall be commenced only by special counsel who
shall be the District Attorney, the Attorney General, or such other qualified
and independent special counsel or combination of the foregoing as may
be appointed by the City Attorney. Such special counsel shall also
commence and prosecute civil litigation to compel compliance with this
chapter or to enjoin conduct in violation of this chapter. At least 90 days
prior to a City election, a special counsel shall be appointed for that
election. Should the appointment of additional special counsel become
necessary or appropriate, the City Attorney shall appoint such additional
special counsel as may be required. No enforcement or prosecution or
action of special counsel shall be subject to the review or control of the
City Council or the City Attorney.
C. Any person residing in the City who believes that a violation of this
chapter has occurred may file a written complaint requesting investigation
of such violation by the special counsel. If the special counsel determines
that there is reason to believe a violation of this chapter has occurred, it
shall conduct an investigation and may commence such administrative,
civil or criminal legal action as it deems necessary for the enforcement of
this chapter. Special counsel shall decline to investigate any alleged
violation hereof which is also an alleged violation of State law and is the
subject of a complaint filed with the Fair Political Practices Commission,
until the investigation of that complaint is complete.
D. The special counsel shall have such investigative powers as are
necessary for the performance of duties described in this chapter and may
demand and be furnished records of campaign contributions and
expenditures of any person or committee at any time. In the event that
production of such records is refused, the special counsel may commence
civil litigation to complete such production.
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E. The special counsel shall be immune to liability for its enforcement of
this chapter.
F. Any action alleging violation of this chapter must be commenced within
two years of the time the alleged violation occurred.
2.28.120 Violation — Penalty.
A. Any knowing or willful violation of any provision of this chapter may be
prosecuted, either as an infraction or as a misdemeanor, at the discretion
of the prosecutor. The maximum fine which may be imposed for each
misdemeanor conviction shall be $1,000. The chairperson and treasurer of
any committee shall be both criminally and civilly responsible for any
violation of this chapter by the committee. In addition, the candidate shall
be both criminally and civilly responsible for any violation of this chapter by
the committee. In addition, the candidate shall be both criminally and
civilly responsible for any violation by a committee controlled by the
candidate.
B. If a candidate is convicted of a willful violation of PMC 2.28.030, the
election to office of such candidate shall be void and such office shall
immediately become vacant. In such event the vacancy shall be filled in
accordance with the procedures as set forth in the Government Code.
2.28.130 Civil liability and penalties.
A. Any person who violates any provision of this chapter shall be liable in
a civil action brought by the special counsel for an amount up to $1,000. In
addition thereto, such person shall be liable for the reasonable attorney's
fees and costs incurred by the special counsel in any civil proceeding filed
to enforce the provisions hereof.
B. Enforcement of this chapter through civil action may be filed as an
alternative to criminal enforcement pursuant to PMC 2.28.120. Civil
enforcement shall not require that the violation be knowing or willful. All
discovery provisions of State law shall be available to the special counsel
in the civil enforcement of this chapter. Special counsel shall have the
power to subpoena documents_ and other materials as may be necessary
to conduct the investigation. No civil action alleging a violation of this
chapter shall be filed against a person pursuant to this section if the
special counsel is maintaining a criminal action against that person
pursuant to PMC 2.28.120.
C. Each violation of this chapter shall be a separate offense subject to the
civil penalty provided in subsection A of this section.
D. The special counsel is authorized to settle any civil enforcement hereof
prior or subsequent to the filing of a civil action by the imposition of a civil
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penalty in an amount which does not exceed the potential civil liability,
including attorney's fees, set forth in subsection A of this section. Upon
payment in full of such civil penalty, the special counsel shall agree to
forbear from filing civil or criminal action or, if action has already been
filed, shall agree to dismiss such action. The imposition of all civil
penalties shall be made a matter of public record.
E. All civil fines shall be deposited into the general fund.
2.28.140 Officeholder accounts prohibited.
Pursuant to the authority of Government Code Section 81013 and 85706,
and notwithstanding the permissive provisions of Government Code
Section 85313, the City Council finds that officeholder accounts are
unnecessary in the City, and have the potential in such a small jurisdiction
to provide incumbent officeholders with unfair political advantage and give
a corrupt appearance to the political process. Officeholder accounts are
prohibited.
2.28.150 Application of Government Code Section 83116.5.
To the greatest extent permitted by law, Government Code Section
83116.5 shall not be applied to any person who is an employee or under
contract to the City and is giving advice interpreting the campaign,
disclosure, or conflict of interest provisions of the Political Reform Act of
1974 or of this chapter as part of that person's government contract or
employment.
Section 3: The City Council finds that pursuant to Title 14 of the California Code of
Regulations, Section 15061(b)(3), this Ordinance is exempt from the requirements of
the California Environmental Quality Act (CEQA) in that it can be seen with certainty
that there is no possibility that the activity in question may have a significant effect on
the environment, the activity is not subject to CEQA.
Section 4: This Ordinance shall take effect thirty (30) days after the date of this
passage, and before the expiration of fifteen (15) days from the passage thereof shall
be published at least once with names and members voting for and against the same in
the Poway News Chieftain, a newspaper of general circulation, published and circulated
in the City of Poway and thenceforth and thereafter the same shall be in full force and
effect.
Section 5: This Ordinance shall be codified.
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EFFECTIVE DATE: This Ordinance shall take effect and be in force thirty (30)
days after its adoption.
CERTIFICATION /PUBLICATION: The City Clerk shall certify the adoption of
this Ordinance and cause it or a summary of it, to be published with the names of the
City Council members voting for and against the same in the Poway News Chieftain, a
newspaper of general circulation in the City of Poway within fifteen (15) days after its
adoption and shall post a certified copy of this Ordinance in the Office of the City Clerk
in accordance with Government Code § 36933.
Introduced and first read at a regular meeting of the City Council of the City of
Poway this 7th day of February 2012, and thereafter PASSED AND ADOPTED at a
regular meeting of said City Council held on the 21 st day of February 2012.
Don Higginson, Ma
ATTEST:
Lin . Troyan, MMC, City CIA
STATE OF CALIFORNIA )
) SS
COUNTY OF SAN DIEGO)
I, Linda A. Troyan, MMC, City Clerk of the City of Poway, do hereby certify, under
penalty of perjury, that the foregoing Ordinance No. 737 was duly adopted by the City
Council at a meeting of said City Council held on the 7th day of February 2012, and that
it was so adopted by the following vote:
AYES: BOYACK, GROSCH, MULLIN, CUNNINGHAM, HIGGINSON
NOES: NONE
ABSENT: NONE
DISQUALIFIED: NONE
daA. Troyan, MMC, City Clerk
of Poway