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Colorado Statutes § 1-45-111.7 Campaign finance complaints - initial review - curing violations - investigation and enforcement - hearings - advisory opinions - document review - collection of debts resulting from campaign finance penalties - definitions

⤴ Up to Article 45: Fair Campaign Practices Act

Statute Text

(1) Definitions. As used in this section, unless the context otherwise requires:
(a) "Article XXVIII" means article XXVIII of the state constitution.
(b) "Deputy secretary" means the deputy secretary of state appointed pursuant to section 24-21-105 or the deputy secretary's designee.
(c) "Division" means the division within the office of the secretary responsible for administering the state's laws governing campaign and political finance.
(d) "Hearing officer" means a person authorized to conduct a hearing under section 24-4-105 (3) .
(e) "Rules" means the rules of the secretary concerning campaign and political finance.
(f) "Secretary" means the secretary of state or the secretary's designate.
(2) Filing complaints.
(a) Any person who believes that a violation has occurred of article xxviii , this article 45, article 46 of this title 1, or the rules may file a complaint with the secretary.
(b) A complaint must be filed no later than one hundred eighty days after the date on which the complainant either knew or should have known, by the exercise of reasonable diligence, of the alleged violation.
(c) Any complaint must be filed in writing and signed by the complainant on the form provided by the secretary. The complaint must identify one or more respondents and include the information required to be provided on the form.
(d) Upon receipt of a complaint, the division shall notify the respondent of the complaint by e-mail or by regular mail if e-mail is unavailable.
(e) The division shall forward any complaint made against a candidate for secretary or the secretary to the department of law for the review of the complaint by the attorney general to act on behalf of the division in accordance with applicable requirements of this section.
(3) Initial review.
(a) The division shall conduct an initial review of a complaint filed under subsection (2) of this section to determine whether the complaint:
(I) Was timely filed under subsection (2)(b) of this section;
(II) Specifically identifies one or more violations of article XXVIII, this article 45, or the rules; and
(III) Alleges sufficient facts to support a factual and legal basis for the violations of law alleged in the complaint.
(b) Within ten business days of receiving a complaint, the division shall take one or more of the actions specified in this subsection (3)(b):
(I) If the division makes an initial determination that the complaint was not timely filed, has not specifically identified one or more violations of article XXVIII, this article 45, or the rules, or does not assert facts sufficient to support a factual or legal basis for an alleged violation, the division shall prepare and file with the deputy secretary a motion to dismiss the complaint. The deputy secretary shall make a determination on the motion to dismiss within five business days, which must be provided to the complainant and the respondent by e-mail or by regular mail if e-mail is unavailable. If the deputy secretary denies the motion, the division shall determine whether to conduct a review under subsection (3)(b)(II) or (3)(b)(III) of this section. The final determination by the deputy secretary on the motion to dismiss constitutes final agency action and is subject to judicial review by a state district court under section 24-4-106 .
(II) If the division makes an initial determination that the complaint alleges one or more curable violations as addressed in subsection (4) of this section, the division shall notify the respondent and provide the respondent an opportunity to cure the violations.
(III) If the division makes an initial determination that the complaint has specifically identified one or more violations of article XXVIII, this article 45, or the rules, and has alleged facts sufficient to support a factual or legal basis for each alleged violation, and that either a factual finding or a legal interpretation is required, the division shall conduct additional review under subsection (5) of this section within thirty days to determine whether to file a complaint with a hearing officer.
(4) Curing violations.
(a) Upon the division's initial determination that a complaint alleges a failure to file or otherwise disclose required information, or alleges another curable violation, the division shall notify the respondent by e-mail or by regular mail if e-mail is unavailable of the curable deficiencies alleged in the complaint.
(b) The respondent has ten business days from the date the notice is e-mailed or mailed to file an amendment to any relevant report that cures any deficiencies specified in the notice.
(c) The respondent shall provide the division with notice of the respondent's intent to cure on the form provided by the secretary and include a copy of any amendments to any report containing one or more deficiencies.
(d) Upon receipt of the respondent's notice of an intent to cure, the division may ask the respondent to provide additional information and may grant the respondent an extension of time to file an amended notice of intent to cure in order to respond to any such request.
(e)
(I) After the period for cure has expired, the division shall determine whether the respondent has cured any violation alleged in the complaint and, if so, whether the respondent has substantially complied with its legal obligations under article XXVIII, this article 45, and the rules in accordance with subsection (4)(f) of this section.
(II) If the division determines that the respondent has substantially complied with its legal obligations, the division shall prepare and file with the deputy secretary a motion to dismiss the complaint. The motion must be accompanied by a draft order specifying the manner in which the respondent has satisfied the factors specified in subsection (4)(f) of this section. The deputy secretary shall make a determination on the motion to dismiss, which must be provided to the complainant and the respondent by e-mail or by regular mail if e-mail is unavailable. If the deputy secretary denies the motion, the division shall determine whether to conduct a review under subsection (3)(b)(II) or (3)(b)(III) of this section. The determination by the deputy secretary under this subsection (4)(e)(II) is final agency action and is subject to judicial review by a state district court under section 24-4-106 .
(III) If the division determines that the respondent has failed to substantially comply under subsection (4)(f) of this section, the division shall conduct an additional review under subsection (5)(a) of this section to determine whether to file the complaint with a hearing officer.
(f) In determining whether an entity substantially complied with its legal obligations under article XXVIII, this article 45, or the rules the division must consider:
(I) The extent of the respondent's noncompliance;
(II) The purpose of the provision violated and whether that purpose was substantially achieved despite the noncompliance; and
(III) Whether the noncompliance may properly be viewed as an intentional attempt to mislead the electorate or election officials.
(g) If the division determines that the respondent failed to cure any alleged deficiency, the division shall conduct an additional review under subsection (5)(a) of this section to determine whether to file a complaint with a hearing officer.
(5) Investigations and enforcement.
(a)
(I) The division shall investigate each complaint that was not dismissed during either its initial review or by means of the cure proceedings in accordance with subsection (3) or (4) of this section to determine whether to file a complaint with a hearing officer. The division may also initiate an investigation under subsection (7)(b) of this section.
(II) For the purpose of an investigation relating to a complaint filed under subsection (2)(a) of this section or an investigation initiated by the division under subsection (7)(b) of this section, the division may request the production of any documents or other tangible things that are believed to be relevant or material to the investigation, and shall establish the relevance and materiality in writing. Notwithstanding any other provision of law, documents or other tangible things provided to the division during the course of an investigation under this subsection (5) are not subject to inspection or copying under the "Colorado Open Records Act", part 2 of article 72 of title 24. Notwithstanding any other provision of law, documents or other tangible things provided to the division during the course of an investigation under this subsection (5) and other materials prepared or assembled to assist the secretary's designee in reaching a decision are work product as defined in section 24-72-202 (6.5)(a) and are not public records subject to inspection under part 2 of article 72 of title 24.
(III) If the division receives a person's membership list or donor list during the course of the division's initial review under subsection (3) of this section, investigation under this subsection (5), or the cure process, including the determination of substantial compliance, as described in subsection (4) of this section, the division shall not disclose such list or the identity of any member or donor to any person. Notwithstanding any other provision of law, any such membership or donor list is not a public record subject to inspection, copying, or any other form of reproduction under part 2 of article 72 of title 24.
(IV) The division shall determine whether it will file a complaint with a hearing officer within thirty days after initiating an investigation. If the division makes a determination that a complaint should not be filed with a hearing officer because there is not sufficient information to support the allegations contained in the complaint or for any other reason, it shall prepare and file with the deputy secretary a motion to dismiss the complaint. The deputy secretary shall make a determination on the motion to dismiss within thirty-five days of the initial determination of the division under this subsection (5)(a)(IV), or the initiation of an investigation by the division under subsection (7)(b) of this section, which must be provided to the complainant and the respondent by e-mail or by regular mail if e-mail is unavailable. If the deputy secretary denies the motion, the division has fourteen business days to file a complaint with a hearing officer under this subsection (5).
(V) If the division files a complaint with a hearing officer under this subsection (5), it is responsible for conducting such discovery as may be necessary for effectively prosecuting the complaint, supplementing or amending the complaint with such additional or alternative claims or allegations as may be supported by the division's investigation, amending the complaint to strike allegations or claims that are not supported by the division's investigation, and in all other respects prosecuting the complaint.
(b) A complainant or any other nonrespondent is not a party to the division's initial review, cure proceedings, investigation, or any proceedings before a hearing officer as described in this section. A complainant may seek permission from the hearing officer to file a brief as an amicus curiae. A person's status as a complainant is not sufficient to establish that he or she may be affected or aggrieved by the secretary's action on the complaint. To the extent this subsection (5)(b) conflicts in any respect with section 24-4-105 or 24-4-106 , this subsection (5)(b) controls. A complainant may also seek judicial review by a state district court of a final agency action under section 24-4-106 .
(6) Conduct of hearings.
(a) Any hearing conducted by a hearing officer under this section must be in accordance with section 24-4-105 ; except that a hearing officer shall schedule a hearing within thirty days of the filing of the complaint, which hearing may be continued upon the motion of any party for up to thirty days or a longer extension of time upon a showing of good cause.
(b) Any initial determination made by a hearing officer must be made in accordance with section 24-4-105 and is subject to review by the deputy secretary. The final agency decision is subject to review under section 24-4-106 .
(7) Document review.
(a) In addition to any other powers and duties it possesses under law, the division may also review any document the secretary receives for filing under article XXVIII, this article 45, or the rules.
(b) In connection with the review of other available information regarding a potential violation under this subsection (7):
(I) If the division determines that a person violated or potentially violated any of the provisions of article XXVIII, this article 45, or the rules, the division shall either notify the person of his or her opportunity to cure the identified deficiencies in accordance with subsection (4) of this section or notify the person that the division is initiating an investigation under subsection (5) of this section. The division shall send the notification by e-mail or by regular mail if e-mail is unavailable.
(II) If the division initiates an investigation or files a complaint with a hearing officer in connection with its review, the procedures described in subsections (5) and (6) of this section apply.
(c) As used in this subsection (7), "review" means the factual inspection of any document required to be filed with the secretary for campaign finance registration, reporting, or disclosure in order to assess the document's accuracy and completeness and the timeliness of the document's filing.
(8) Advisory opinions.
(a) Any person seeking guidance on the application of article XXVIII, this article 45, or the rules may request that the secretary issue an advisory opinion regarding that person's specific activity.
(b) The secretary shall determine, at the secretary's discretion, whether to issue an advisory opinion under subsection (8)(a) of this section. In making this determination, the secretary shall consider factors including whether:
(I) The advisory opinion will terminate a controversy or remove one or more uncertainties as to the application of the law to the requestor's situation;
(II) The request involves a subject, question, or issue that concerns a formal or informal matter or investigation currently pending before the secretary or a court; and
(III) The request seeks a ruling on a moot or hypothetical question.
(c) A person may rely on an advisory opinion issued by the secretary as an affirmative defense to any complaint filed under this section.
(d) A refusal by the secretary to issue an advisory opinion does not constitute a final agency action that is subject to appeal.
(9) Miscellaneous matters - debt collection - municipal complaints.
(a) The secretary may pursue collection of any outstanding debt resulting from a campaign finance penalty that the secretary deems collectible.
(b) [Repealed by 2024 Amendment.]
(10) Municipal complaints.
(a) A complaint alleging that a violation of article XXVIII of the state constitution, this article 45, or the rules has occurred in connection with a municipal campaign finance matter must be filed with the clerk of the applicable municipality. Unless otherwise provided by local law, a complainant must file the complaint in writing, sign the complaint, and identify one or more respondents. The complaint shall be filed and processed in accordance with local law unless referred to the secretary as specified in subsection (10)(c)(I) or (10)(c)(II) of this section .
(b) The clerk shall conduct an initial review of a campaign finance complaint within ten business days of receiving the complaint or within the time specified in local law to determine whether the complaint satisfies the requirements of subsection (10)(a) of this section or the requirements of local law, as applicable. If, after initially reviewing a complaint pursuant to this subsection (10)(b), the clerk determines that a complaint does not satisfy the requirements of subsection (10)(a) of this section, the clerk shall dismiss the complaint .
(c)
(I) If, after initially reviewing a campaign finance complaint pursuant to subsection (10)(b) of this section, the clerk determines that the complaint satisfies the requirements of subsection (10)(a) of this section and local law, as applicable, but presents an actual or potential conflict for the clerk or the clerk's staff, the clerk shall refer the complaint to the secretary, in a form and manner determined by the secretary, within fourteen business days of receiving the complaint if the municipality has adopted an ordinance that authorizes the municipality to refer a campaign finance complaint to the secretary based on an actual or potential conflict of the clerk or the clerk's staff, as determined in writing by the clerk .
(II) If the clerk of a statutory municipality that does not have a campaign finance complaint and hearing process determines, after initially reviewing a campaign finance complaint pursuant to subsection (10)(b) of this section, that a complaint satisfies the requirements of subsection (10)(a) of this section, the clerk shall refer the complaint to the secretary, in a form and manner determined by the secretary, within fourteen business days of receiving the complaint if the municipality has adopted an ordinance that authorizes the municipality to refer a campaign finance complaint to the secretary because the municipality does not have a campaign finance complaint and hearing process .
(d) To refer a campaign finance complaint to the secretary pursuant to this subsection (10), a municipality must have an ordinance that authorizes the municipality to refer such a complaint to the secretary and must provide a copy of the ordinance to the secretary. A municipality is not authorized to refer a campaign finance complaint to the secretary pursuant to this subsection (10) for an election that is fewer than one hundred and eighty days after the ordinance is provided to the secretary. A municipal ordinance that authorizes the a municipality to refer a campaign finance complaint to the secretary must :
(I) Authorize the secretary to use the provisions of subsections (3) to (7) of this section to process, investigate, and resolve the campaign finance complaint; except that the determination of whether the complaint was timely filed pursuant to subsection (3)(a)(I) of this section shall consider the time for filing a complaint under local law ;
(II) Permit the filing of a campaign finance complaint no more than one hundred eighty days after the date on which the complainant either knew or should have known, by the exercise of reasonable diligence, of the alleged violation ;
(III) Require the filing of a campaign finance complaint to be in writing and signed by the complainant on a form provided by the secretary, including identification of one or more respondents and including the information required to be provided on the form ;
(IV) Direct the municipality to cooperate with the secretary in the processing and investigation of the campaign finance complaint; and
(V) Disclaim any interest of the municipality in fines collected in connection with a referred campaign finance complaint .
(e) Upon dismissing a complaint or referring a complaint to the secretary pursuant to this section, the clerk shall notify the complainant of the clerk's action by e-mail or by regular mail if e-mail is unavailable .
(f) A municipality must cooperate with the secretary in the review, investigation, and determination of any campaign finance complaint referred to the secretary pursuant to this section .
(g) If the secretary receives a campaign finance complaint referred by a clerk pursuant to subsection (10)(c)(I) or (10)(c)(II) of this section, the secretary shall deem the complaint filed pursuant to subsection (2) of this section on the date of receipt from the clerk, and the secretary shall ensure that the complaint is addressed in accordance with the requirements of this section. The determination that a conflict exists is not reviewable by the secretary .
(h) The secretary shall apply the substantive provisions of a home rule municipality's local law in processing, investigating, and resolving a campaign finance complaint referred to the secretary pursuant to this section .
(i) All fines collected in connection with a referred campaign finance complaint are payable to the secretary .
(j) The adoption of a local law authorizing the referral of a campaign finance complaint to the secretary pursuant to this section is not a waiver of the application of any provisions of article XX or XXVIII of the state constitution or section 1-45-116. Nothing in this subsection (10) requires a municipality to repeal an ordinance or resolution establishing a campaign finance complaint and hearing process .
(k) As used in this subsection (10):
(I) " Conflict" means the actual or reasonably perceived inability to process a campaign finance complaint or impose a remedy in a fair and impartial manner, including an actual or reasonably perceived bias or other factors that may impact the independence of the decision-maker regarding the complainant or a candidate .
(II) " Clerk" means the clerk of a municipality or the person or entity designated to review campaign finance complaints under a local law .
(III) " Local law" means a municipal charter, ordinance, or resolution that address the matters covered by article XXVIII of the state constitution and this article 45.

History

Amended by 2024 Ch. 338 , § 1 , eff. 8/7/2024 , app. to municipal campaign finance complaints filed on or after the applicable effective date .

Amended by 2024 Ch. 250 , § 2 , eff. 7/1/2024 , app. to communications distributed on or after 7/1/2024 .

Amended by 2021 Ch. 12 , § 2 , eff. 3/21/2021 .

Added by 2019 Ch. 330 , § 1 , eff. 7/1/2019 .

L. 2019: Entire section added, (SB 19-232), ch. 3059, p. 3059, § 1, effective July 1.

Editor's Note

Section 6(1) of chapter 330 (SB 19-232), Session Laws of Colorado 2019, provides that the act adding this section applies to complaints filed with the secretary of state on or after July 1, 2019.

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