Alabama Advisory Opinions December 03, 2013: AGO 2014-021 (December 03, 2013)

Advisory Opinion Text

Honorable Jim Bennett

Secretary of State

Post Office Box 5616

Montgomery, Alabama 36103-5616

Secretary of State - Fair Campaign Practices Act - Penalties - Civil Remedies

The Secretary of State is not authorized to assess the civil penalty set forth in section 17-5-19(d) of the Code of Alabama.

Dear Mr. Bennett:

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

QUESTION

Does the Secretary of State have the authority to assess a civil penalty pursuant to section 17-5-19(d) of the Code of Alabama?

FACTS AND ANALYSIS

Act 2013-311, which became effective August 1, 2013, made substantial changes to campaign finance reporting in Alabama. 2013 Ala. Acts 2013-311. Included therein, the Legislature provided an additional penalty in the form of a civil fine to be assessed against persons who fail to timely or accurately file reports. Id. The relevant portion of the act is now codified in section 17-5-19 of the Code and states as follows:

(d) A person who fails to timely or accurately file any report required by this chapter shall be assessed a civil penalty of the greater of three hundred dollars ($300) or ten percent of the amount not properly reported for a first offense in an election cycle, six hundred dollars ($600) or 15 percent of the amount not properly reported for a second offense in an election cycle, and one thousand two hundred dollars ($1200) or 20 percent of the amount not properly reported for a third or subsequent offense in an election cycle. A fourth failure to timely or accurately file a report in an election cycle shall create a rebuttable presumption of intent to violate the reporting requirements of this chapter. Civil penalties shall be paid to the appropriate filing official. All penalties collected by a judge of probate shall be distributed to that county's general fund, and all penalties collected by Secretary of State shall be distributed to the State General Fund. A person who voluntarily files an amended report to correct an error in an otherwise timely filed report, without being prompted by a filing official shall not be subjected to a civil penalty under this subsection, so long as, in the case of a candidate, the corrected report is filed prior to the election at issue, and so long as, in the case of a political action committee, the corrected report is filed prior to the election which the contribution was given to influence.

Ala. Code § 17-5-19(d) (Supp. 2013). As pointed out in your request, although the statute mandates that penalties collected by the Secretary of State be distributed to the state general fund, it does not specifically authorize the Secretary of State to assess the civil penalty.

The Office of Secretary of State is a constitutional office. Ala. Const. art. V, § 112. The duties of the Secretary of State are set forth in section 134 of the Constitution, which provides as follows:

The secretary of state shall be the custodian of the great seal of the state, and shall authenticate therewith all official acts of the governor, except his approval of laws, resolutions, appointments to office, and administrative orders. He shall keep a register of the official acts of the governor, and when necessary, shall attest them, and lay copies of same together with copies of all papers relative thereto, before either house of the legislature, when required to do so, and shall perform such other duties as may be prescribed by law.

Ala. Const, art. V, § 134 (emphasis added). In addition to its constitutional duties, the Legislature has designated the Secretary of State as the chief elections official of the state. Ala. Code § 17-1-3 (2006). Accordingly, by legislative authority, the Secretary of State is tasked with numerous administrative duties related to elections.

It is settled law in Alabama that an administrative agency is purely a creature of the Legislature and has only those powers conferred upon it by the Legislature. Jefferson County v. Ala. Criminal Justice Info. Ctr. Comm'n, 620 So.2d 651, 658 (Ala. 1993); Ethics Comm'n of Ala. v. Deutsch, 494 So.2d 606, 608 (Ala. 1986). Under the established rules of statutory construction, words used in a statute must be given their natural, plain, ordinary, and commonly understood meaning, and where plain language is used, a court is bound to interpret that language to mean exactly what it says. Ex parte Cove Properties, Inc., 796 So.2d 331, 333-34 (Ala. 2000). To "collect" means to "receive, gather, or exact from a number of persons or other sources." Webster's Third New International Dictionary 444 (2002). To "assess, " on the other hand, means to "determine the amount of and impose [a fine] according to an established rate or apportionment." Webster's Third New International Dictionary 131 (2002).

Various agencies of the state have been granted the authority to assess fines. See, e.g., Ala. Code § 4-2A-6(35) ("[Alabama Airport Authority may] assess and collect fines . . . ."); Ala. Code § 5-2A-12(b) (Supp. 2013) ("[State Banking] superintendent to issue an order that imposes civil money penalties . . . ."); Ala. Code § 8-6-19(j) (2002) ("[Securities Commission] may by order . . . impose an administrative assessment . . . ."); Ala. Code § 22-22A-5(18) (Supp. 2013) ("[Department of Environmental Management may] issue an order assessing a civil penalty"); Ala. Code § 28-3A-24(c) (2003) ("[The Alcoholic Beverage Control Board] is authorized to fine . . . ."); Ala. Code § 36-25-27(b) (Supp. 2013) ("[Ethics Commission] may levy an administrative penalty . . . .").

Unlike the statutory authority for those agencies, however, nothing within Act 2013-311 authorizes the Secretary of State to assess this civil penalty. Had the Legislature intended to grant the Secretary of State the authority to assess the civil penalty, it could have easily so stated.

It is also noted that section 17-5-19 of the Code is the penalty section of the Fair Campaign Practices Act. The authority to prosecute violations of the Fair Campaign Practices Act is vested with the Attorney General or the district attorney for the appropriate jurisdiction. Ala. Code § 17-5-19(e) (Supp. 2013). Like the other penalty provisions in this section, the civil penalty authorized in section 17-5-19(d) should be assessed by a court of competent jurisdiction after a successful, albeit civil, prosecution by the Attorney General or district attorney, as appropriate.

CONCLUSION

The Secretary of State is not authorized to assess the civil penalty set forth in section 17-5-19(d) of the Code.

Because the answer to your first question is determined in the negative, your remaining questions are moot.

I hope this opinion answers your question. If this Office can be of further assistance, please contact Ben Baxley of my staff.

Sincerely,

LUTHER STRANGE Attorney General.

BRENDA F. SMITH Chief, Opinions Division.