8 Colo. Code Regs. § 1505-6-23

Current through Register Vol. 47, No. 23, December 10, 2024

Rule 8 CCR 1505-6-23 - [Effective until 1/1/2025] Complaints filed under section 1-45-111.7, C.R.S

23.1 Filing initial complaints

23.1.1 Campaign and political finance complaints must be filed in writing and can be submitted by hardcopy or electronically. Electronic signatures are permitted for any complaint documentation that requires a signature by complaint, respondent, or the elections division.

23.1.2 A complaint must identify both a respondent and a complainant. Anonymous complaints or complaints that fail to identify a complainant and respondent may be rejected and not reviewed by the elections division.

23.1.3 Complaints must meet the plausibility pleadings standard by presenting a plausible basis, based on concrete, non-conclusory allegations of particularized facts, to support the allegations that a potential campaign and political finance violation occurred. The plausibility of an allegation is determined while accepting as true the concrete, non-conclusory assertions of fact upon which the allegation is based.

23.1.4 Complaints that stem from a common set of operative facts as a pending complaint will be consolidated when practicable. When consolidation is not practicable and the outcome of the initial case will be determinative of the later case, a complaint will be stayed until a final agency decision issues on the initial complaint and any appeals are resolved.

23.1.5 Violations stemming from late or missing filings that have had a late filing penalty assigned or the assigned penalty has been waived under Rule 18 are not subject to additional monetary penalties under Rule 23.4 for the late filing violation.

23.1.6 A respondent that fails to preserve potentially relevant information or records concerning its contributions or expenditures or otherwise reportable activity upon receipt of a complaint may be subject to an adverse inference establishing that the information or records that were not preserved after receipt of a complaint would otherwise establish the disputed fact. This adverse inference is subject to the equitable principles applicable under the common law spoliation doctrine.

23.2 Referral of municipal complaints

23.2.1 A municipal complaint may not be directly filed with the division and must be reviewed by the municipal clerk as required by section 1-46-111.7(10)(a)-(b), C.R.S., before being referred to the division.

23.2.2 A municipal complaint may be referred to the division to process and investigate if the complaint meets all of the following conditions:

(a) A complaint meets the grounds for referral:

(1) For statutory and home rule municipalities, the complaint involves an actual or potential conflict for the municipal clerk or the clerk's staff; or

(2) For statutory municipalities, the municipality has not adopted a campaign and political finance complaint and hearing process;

(b) A local ordinance meeting the conditions in section 1-45-111.7(10)(d), C.R.S., and this rule's subsection (c) specifically allows complaints to be referred to the division due to a conflict or because there is no local enforcement process; and

(c) The municipality has adopted the ordinance and provided a copy to the Department 180 days or more prior to the municipal election at issue in the complaint. Once a copy of the ordinance has been provided to the Department, another copy does not need to be provided for additional complaints unless amended or updated.

23.2.3 A municipal complaint referred to the division must include:

(a) The underlying complaint and any documents attached to the complaint;

(b) A municipal complaint cover sheet, available on the Secretary of State's website, with all the required information provided;

(c) The name and contact information for a person within the municipal clerk's office who will assist the division with any questions during the processing of the complaint;

(d) A copy of the local ordinance that allows referral; and

(e) Any relevant campaign and political finance filings, documents, copies of applicable local law, communications with complainant or respondent related to the complaint, determination of the conflict, evidence of the initial review conducted under section 1-45-111.7(10), C.R.S., or other documents relevant to the complaint.

23.2.4 Timeliness

(a) A municipal complaint must be referred to the division within 14 business days of receipt by the municipality and will be processed and reviewed according to the provisions of subsections 1-45-111.7(3) -(10), C.R.S.

(b) For processing deadlines under section 1-45-111.7, C.R.S., the division will process the complaint based on the date the complaint was received by the division from the municipal clerk.

(c) Unless local law provides for a different date, a municipal complaint must be filed no later than 180 days after the date on which the complainant either knew or should have known, by the exercise of reasonable diligence, of the alleged violation. The determination of timeliness is calculated from the date the complaint is filed with the municipality.

23.2.5 The division may reject a referral of a municipal complaint if the clerk did not conduct an initial review as provided in section 1-45-111.7, C.R.S., the complaint was not referred to the division within 14 business days, or the municipality did not have an ordinance in place that allowed referral or otherwise met referral requirements.

23.2.6 The division has no jurisdiction to consider an allegation against a municipality or a municipal clerk that the municipality or clerk improperly failed to refer a municipal campaign finance complaint to the Department. Such claims, if any, may be pursued against the municipality or the clerk in the District Court where the municipality is located pursuant to Rule 106(4) of the Colorado Rules of Civil Procedure. The Department has no liability to a complainant or any other person for the failure of a municipality or a municipal clerk to refer a municipal campaign finance complaint to the Department.

23.3 Documents related to complaints.

23.3.1 The original complaint, notice of initial review, motion to dismiss, an order issued by the Secretary of State's Office, final agency decision, and any complaint filed by the elections division with a hearing officer will be publicly available at the time the document is provided to the respondent.

23.3.2 The elections division may redact any document that it will otherwise make available pursuant to this rule if such redaction is necessary to protect any personal private information or personally identifiable information, is not relevant or material to the determination, or is otherwise required under the Colorado Open Records Act.

23.3.3 Any document the elections division receives under section 1-45-111.7(5)(a)(III), C.R.S., will not be retained after the time necessary to review, investigate, or prosecute a complaint, including any appeal, as applicable.

23.4 Settlement of complaints and fine structure for violations

23.4.1 After a complaint has been filed with a hearing officer the elections division may enter into a settlement agreement with the respondent.

23.4.2 In assessing a fine amount or approving a settlement, the deputy secretary of state or a hearing officer, as applicable, will consider all of the following factors:

(a) Specific fine amounts outlined in Rule 23.4.3;

(b) Any appropriate specific action in Rule 23.4.4;

(c) Whether Rule 18 late filing penalties have been issued and if a waiver was granted;

(d) Sanctions available under section 1-45-111.5, C.R.S.; and

(e) The mitigating and aggravating factors, including those listed in Rule 23.4.5, to increase or decrease the monetary fine or terms.

23.4.3 Fine amounts

(a) Failure to register a committee

(1) Amount of contributions or donations accepted or expenditures made while out of compliance, outlined below:

(A) Less than $1,000 fine is at least $150;

(B) Between $1,001 and up to $5,000 fine is at least $300; or

(C) Greater than $5,000 the fine of at least $300 plus at least 10 percent of total amount of the contributions and expenditures made.

(b) Failure to file complete and accurate affidavits, disclosures, contributions, expenditures, or other finance reports

(1) Failure to file complete and accurate reports is a $100 fine per report plus 5 percent of the activity not accurately or completely reported.

(2) Failure to file an accurate candidate affidavit

(A) If the affidavit is submitted within 14 days of registration deadline, the fine is at least $50; or

(B) If the affidavit is submitted after 14 days post deadline, the fine is at least $100.

(3) Failure to file an accurate or complete initial, updated, or amended personal financial disclosure as required under section 1-45-110, C.R.S., which includes content required by section 24-6-202(2), C.R.S.

(A) If the personal financial disclosure is filed or corrected within 14 days of the applicable filing due date, the fine is at least $50;

(B) If the personal financial disclosure is filed or corrected prior to the filing of any complaint alleging an insufficient filing of a personal financial disclosure, so long as the disclosure is submitted at least 30 days prior to the first election in which the candidate is running, the fine is at least $100;

(C) If the personal financial disclosure is filed or corrected after the filing of any complaint alleging an insufficient filing of a personal financial disclosure, so long as the disclosure is submitted at least 30 days prior to the first election in which the candidate is running, the fine is at least $250;

(D) If the personal financial disclosure is filed or corrected fewer than 30 days before the election in which the candidate is running, the fine is at least $500;

(E) If the candidate or incumbent is defeated or withdraws and the personal financial disclosure was not corrected, the fine will be at least $500; or

(F) If the personal financial disclosure is corrected after the election, and the respondent was not defeated or did not withdraw, the fine is at least $1,000.

(4) Failure to file an initial disclosure report or an annual update as required under section 24-6-202, C.R.S.

(A) If the disclosure report is filed within 14 days of due date, the fine is at least $50;

(B) If the disclosure report is filed within 28 days of due date, the fine is at least $100;

(C) If the disclosure report is filed more than 28 days late but at least 30 days prior to an election in which the official is running, the fine is at least $500; or

(D) If the disclosure report is filed after an election in which the official is running, the fine is at least $1,000.

(5) Filing an inaccurate or incomplete personal financial disclosure or failure to correct an inaccurate or incomplete personal financial disclosure could result in criminal and civil penalties under section 24-6-202(7), C.R.S.

(c) Prohibited contributions, donations, and expenditures

(1) For accepting a prohibited contribution including accepting an amount that exceeds a contribution limit or making prohibited expenditures, the fine is at least $100 and 10 percent of the prohibited activity:

(2) Prohibited use of unspent campaign funds and exceeding voluntary contribution limits

(A) A fine of at least $250 per violation; and

(B) A fine that is up to 25 percent of the amount of the prohibited activity.

(d) Disclaimer and electioneering communications

(1) If noncompliant communication is mitigated prior to the election: a fine of at least 5 percent cost of the noncompliant communication including cost to broadcast;

(2) If noncompliant communication is not mitigated prior to the election: a fine of at least 10 percent of the cost of the communication including cost to broadcast; or

(3) For failure to include a compliant disclosure statement for a deepfake communication, the penalties are outlined under section 1-45-111.5 (1.5)(c.5), C.R.S.

(e) Violations by the state or a political subdivision under section 1-45-117, C.R.S.

(1) If the violation is cured before the election but there was no substantial compliance, the fine will be at least $500;

(2) If the violation is not cured before the election, the fine will be at least $1,000; or

(3) If the amount of funds improperly used is ascertainable, the fine will be at least three times the amount of the improperly used funds.

(f) Other violations of campaign and political finance rules and regulations will be assessed penalties based on the circumstances of the violations and factors outlined in Rule 23.4.4.

23.4.4 Specific action(s)

(a) In addition to monetary fines the deputy secretary of state or assignee may seek a specific action(s) from the respondent. Specific actions may include:

(1) Registering as a committee or candidate in TRACER;

(2) Return or donation of prohibited contribution or disgorgement of the value of the improper conduct;

(3) Filing or amending disclosure reports;

(4) Inclusion or correction of disclaimer on the communication; or

(5) Other specific performance or terms that may be warranted.

23.4.5 The elections division may also consider the follow mitigating and aggravating factors:

(a) Nature and extent of the violation;

(b) Timing of the violation (including proximity to the election);

(c) Ability or effort to mitigate the violation;

(d) Evidence of an intentional act or a pattern or practice of misconduct;

(e) Extent to which the harm cause by the violation or the value of the violation cannot be reasonably calculated; or

(f) Other aggravating or mitigating factors may be taken into consideration in reaching a just and equitable outcome.

8 CCR 1505-6-23

38 CR 13, July 10, 2015, effective 7/30/2015

38 CR 22, November 25, 2015, effective 12/15/2015

39 CR 17, September 10, 2016, effective 9/30/2016

40 CR 22, November 25, 2017, effective 12/15/2017

41 CR 15, August 10, 2018, effective 8/30/2018

41 CR 21, November 10, 2018, effective 11/30/2018

42 CR 01, January 10, 2019, effective 1/30/2019

43 CR 17, September 10, 2020, effective 9/30/2020

45 CR 20, October 25, 2022, effective 11/14/2022

46 CR 06, March 25, 2023, effective 2/15/2023

46 CR 09, May 10, 2023, effective 5/30/2023

46 CR 10, May 25, 2023, effective 4/13/2023

46 CR 12, June 25, 2023, effective 7/15/2023

46 CR 18, September 25, 2023, effective 10/15/2023

47 CR 20, October 25, 2024, effective 11/14/2024