Alabama Advisory Opinions August 10, 2006: AGO 2006-125 (August 10, 2006)

AGO 2006-125.

Dear Judge Davis:

This opinion of the Attorney General is issued in response to your request.

1. Under section 17-22A-10(b) of the Code of Alabama, if a statement or report required to be filed under the Fair Campaign Practices Act ("FCPA") is sent by certified or registered mail on the day it is to be filed and postmarked before the election, is it deemed filed before the election?

2. Under section 17-22A-10(b), is a statement or report required by section 17-22A-8(a)(1), which is postmarked five days before the election but stamped "Received" by the Secretary of State's Office on the day of the election, deemed filed before the election?

Your request states as follows:

Prior to the June 6, 2006, Republican Primary, a candidate for Mobile County Circuit Judge sent, via certified mail, her 10-5 day report required by section 17-22A-8(a)(1) of the Code of Alabama to the Secretary of State's Office. The postmark on the envelope reflects the date of June 1, 2006. The report was stamped "Received" by the Secretary of State's Office on June 6, 2006. The candidate won the Republican Primary and has been certified as the nominee for the November general election.

The FCPA requires the filing of the following financial disclosure statement by a candidate:

(a) The treasurer of each principal campaign committee or other political committee shall file with the Secretary of State or judge of probate, as designated in Section 17-22A-9, reports of contributions and expenditures at the following times in any year in which an election is held:

(1) Forty-five days before and between 10 and five days before the date of any election for which a political committee receives contributions or makes expenditures with a view toward influencing such election's result.

Ala. Code § 17-22A-8(a)(1) (1995) (emphasis added).

This Office has specifically addressed the filing of a 10-5 day report under circumstances similar to those in this case. Opinion to Honorable Albert O. Howard, Probate Judge, Probate Court of Russell County, dated August 23, 2004, A.G. No. 2004-206. See also , opinions to Honorable Robert M. Martin, Probate Judge, Chilton County Office of Probate Court, dated July 10, 2002, A.G. No. 2002-284; and to Honorable Jim Bennett, Secretary of State, dated October 3, 2000, A.G. No. 2001-001. The Howard opinion concluded that filing on the day of the election was not filing before the election.

In the Howard opinion, however, unlike this case, there was no question regarding the date of filing. Section 17-22A-10 of the FCPA governs the date of receipt by the Secretary of State of a statement or report required to be filed under the FCPA. Section 17-22A-10(b) states as follows:

(b) The date of filing of a report or statement filed pursuant to this chapter shall be deemed to be the date of receipt by the Secretary of State or judge of probate, as the case may be; provided , that any report or statement filed by certified or registered mail shall be deemed to be filed in a timely fashion if the date of the United States postmark stamped on such report or statement is at least two days prior to the required filing date , and if such report or statement is properly addressed with postage prepaid.

Ala. Code § 17-22A-10(b) (1995) (emphasis added).

Here, the candidate was required to file her 10-5 day report for the June 6, 2006, primary election by June 1, 2006. Because the report was postmarked June 1, 2006, rather than two days earlier, it was not timely filed under the second part of section 17-22A-10(b). Therefore, the first part of the section controls, which states that the date of filing is the date of receipt by the Secretary of State. The Secretary of State received the report on June 6, 2006. Because the report was filed on the day of the election, as in the Howard opinion, it was not filed before the election.

A 10-5 day report required by the Fair Campaign Practices Act filed by certified or registered mail that is postmarked five days before the primary election and received on the day of the election is not filed before the election.

I hope this opinion answers your questions. If this Office can be of further assistance, please contact Ward Beeson of my staff.

Sincerely,

TROY KING

Attorney General

By: BRENDA F. SMITH

Chief, Opinions Division

TK/GWB

166433/98012