Kentucky Advisory Opinions January 04, 2022: AGO OAG 22-01

Advisory Opinion Text

Subject: Whether a county clerk may reject a candidate’s nomination papers if the candidate does not also file the Statement of Spending Intent and Appointment of Campaign Treasurer form.

Requested by : Jason Denny, Anderson County Clerk President, Kentucky County Clerks Association

Written by: Carmine G. Iaccarino, General Counsel

Syllabus: A clerk may not reject a candidate’s nomination papers if the candidate does not also provide his or her Statement of Spending Intent and Appointment of Campaign Treasurer form.

OPINION OF THE ATTORNEY GENERAL

The filing deadline for 2022 elections is January 7, 2022. See KRS 118.165; KRS 118A.060(2); KRS 83A.045. With that date fast approaching, and in the wake of legislative changes made by the 2019 General Assembly in its Regular Session, the Kentucky County Clerks Association asks whether a county clerk may reject a candidate’s nomination papers—the form required to declare one’s candidacy— without also receiving that candidate’s Statement of Spending Intent and Appointment of Campaign Treasurer form. For the reasons below, a clerk may not reject a candidate’s nomination papers simply because the candidate does not also immediately provide the Statement of Spending Intent and Appointment of Campaign Treasurer form.

First, some background. To seek office in Kentucky, a candidate must file his or her nomination papers with the Secretary of State or the county clerk. See , e.g ., KRS 83A.045; KRS 118.125; KRS 118.165; KRS 118A.060(2). Kentucky’s campaign finance laws also provide that a candidate must “designate a campaign treasurer to act as their agent at the time and at the office with which they file as a candidate or slate of candidates,” KRS 121.160(1), and that an exempt candidate, slate, or political issues committee must file “a form prescribed and furnished by the registry stating that currently no contributions have been received and that contributions will not be accepted or expended in excess of three thousand dollars ($3,000) in any one (1) election,” KRS 121.180(1)(a). Historically, the Kentucky Registry of Election Finance (“Registry”) has required that candidates meet these separate statutory requirements through the filing of one paper form. That paper form, the “Statement of Spending Intent and Appointment of Campaign Treasurer,” KREF 001, is incorporated by reference in the Registry’s administrative regulations in 32 KAR 1:020, Section 3.

In 2019, however, things changed. In that year, the General Assembly required that, beginning “with the primary scheduled in calendar year 2020, and for each subsequent election scheduled thereafter, reports required to be submitted to the registry involving candidates, slates of candidates, committees, contributing organizations, and independent expenditures shall be reported electronically.” KRS 121.180(16); see also KRS 121.120(6)(i) (stating the electronic filing requirement permissively). In the wake of those changes, the Registry moved to an online platform for candidate filings, its Candidate Dashboard, and thereafter required that all forms and reports be filed electronically.

According to the Kentucky County Clerks Association, these legislative changes and the fact that the Registry now requires one electronic form for a candidate to comply with two statutory requirements appears to create a practical problem: How may a candidate comply with the filing requirements stated in statute? And what is a clerk’s role in enforcing compliance? The clerks worry that while the Registry requires electronic submission of its form, KRS 121.160(1) requires that a candidate also submit the form necessary to designate a treasurer “at the time and at the office with which” the candidate files his or her nomination papers. And the form required by KRS 121.180(1)(a) must be filed “with the same office with which a candidate or slate of candidates files nomination papers.” The clerks “are especially worried that potential candidates will show up in clerks’ offices at the filing deadline without an opportunity to create an account in the KREF electronic filing system, submit a KREF 001 electronically to KREF, and print out a copy of the KREF 001 to submit to the county clerk with the Notification and Declaration form.” Thus, the clerks are concerned that these requirements may “threaten ballot access for an otherwise constitutionally eligible candidate.”

Having set forth these initial considerations, this Office provides the following guidance to clerks: A clerk may not reject a candidate’s nomination papers simply because the candidate does not also immediately provide his or her Statement of Spending Intent and Appointment of Campaign Treasurer form. This is so for a few reasons, including:

First , KRS 118.165(3) provides that “[t]he county clerk shall examine the notification and declaration form of each candidate to determine whether it is regular on its face. If there is an error, the proper officer shall notify the candidate by certified mail within twenty-four (24) hours of filing.” KRS 118.165(3) makes no reference to rejecting that form because of a candidate’s failure to file a campaign finance form, the KREF 001.

Second , although KRS 121.160 contains a temporal requirement that a candidate also submit the form necessary to designate a treasurer “ at the time and at the office with which they file” their nomination papers, KRS 121.160(1) (emphasis added), the statute states—and even anticipates—that such filing may not always occur at that time. According to KRS 121.160(1), “until this requirement is met the candidate or slate of candidates shall be listed as their own treasurer and accountable as such.” In this way, KRS 121.160 provides no basis for a clerk to reject a candidate’s nomination papers.

Third , while KRS 121.180(1)(a) requires that the form prescribed by the Registry be filed “with the same office with which a candidate or slate of candidates files nomination papers,” that statute does not provide that such filing must be made at the time the candidate files his or her nomination papers. Compare KRS 121.180(1)(a) with KRS 121.160(1). Accordingly, the separate campaign finance provision in KRS 121.180(1)(a) does not provide a basis to reject a candidate’s nomination papers or to impose additional requirements not otherwise stated in law.

Fourth , although the General Assembly has mandated that all campaign finance reporting be submitted electronically, KRS 121.180(16), the KREF 001 form is not a campaign finance report. Rather, according to the Registry’s own regulation, it is a form or statement used to appoint a campaign treasurer and request a reporting exemption. 32 KAR 1:020, Section 1 and 2. While the Registry’s Candidate Dashboard may provide candidates the option to file this form electronically, the Registry’s governing regulation incorporates by reference the “Statement of Spending Intent and Appointment of Campaign Treasurer Form.” 32 KAR 1:020, Section 3 (incorporating by reference KREF 001, last revised November 2017). If a candidate wishes to file this form at the time and at the office with which he or she files his or her nomination papers, neither a clerk nor the Registry may prohibit the use of that paper form. KRS 13A.110 (“Forms that are required to be submitted by a regulated entity shall be included in an administrative regulation.”); KRS 13A.130(1)(a) (“An administrative body shall not by internal policy, memorandum, or other form of action: . . . (a) Modify a statute or administrative regulation”).

A candidate ignores Kentucky’s campaign finance laws at his or her own risk. See generally KRS 121.990 (providing penalties for the violation of the provisions of KRS Chapter 121). For that reason, a candidate should promptly file the Registry’s forms in a manner that allows the Registry and each candidate to comply with the law. That said, a clerk may not reject a candidate’s nomination papers simply because the candidate does not also provide his or her Statement of Spending Intent and Appointment of Campaign Treasurer form.

DANIEL CAMERON, ATTORNEY GENERAL

CARMINE G. IACCARINO GENERAL COUNSEL

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Notes:

The General Assembly may delay the filing deadline for 2022 elections.

This Office solicited input from the Kentucky County Clerks Association, the Secretary of State, the State Board of Elections, and the Kentucky Registry of Election Finance.

See Kentucky Registry of Election Finance “Notice and Instructions to all Candidates,” available at https://perma.cc/QJ8B-326T .

The appropriate nomination papers, including the Notification and Declaration form, which the clerks reference in their request, are available on the Secretary of State’s website, available here.

As an aside, under state law, “[t]he nomination for, or election to, an office of any candidate or slate of candidates who knowingly violates any provision of KRS 121.150 to 121.220 . . . with the knowledge of that candidate or slate of candidates, shall be void, and, upon a final judicial determination of guilt, the office shall be declared vacant and the officeholder shall forfeit all benefits which he would have been entitled to receive had he continued to serve, and the office or candidacy shall be filled as provided by law for the filling of a vacancy.” KRS 121.990(4).

If the Registry would require that all candidates use an online portal to meet certain reporting and filing requirements, KRS Chapter 13A requires that those requirements be stated in regulation. Here, until the mandates stated in the Registry’s “Notice and Instructions to all Candidates” are reflected in regulation, the “Statement of Spending Intent and Appointment of Campaign Treasurer Form,” KREF 001, last revised November 2017, is the official form that a candidate may use to comply with the requirements stated in KRS 121.160 and KRS 121.180. 32 KAR 1:020.

For ease in reference and given the fast approaching filing deadline, a copy of the form incorporated by reference in 32 KAR 1:020 is available at https://perma.cc/9X62-NQHH .

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