32 Ky. Admin. Regs. 2:040

Current through Register Vol. 51, No. 5, November 1, 2024

Section 32 KAR 2:040 - Investigatory procedures

RELATES TO: KRS 121.140, 121.180

NECESSITY, FUNCTION, AND CONFORMITY: KRS 121.120(1)(g) authorizes the Registry of Election Finance to promulgate administrative regulations necessary to carry out KRS Chapter 121. This administrative regulation establishes a procedure for investigations into complaints or internally generated matters and is necessary to ensure a consistent procedure.

Section 1. Investigations.

(1) An investigation shall be conducted if the general counsel finds reason to believe that a violation of a campaign finance law may have occurred or is about to occur, or at the direction of the registry if the general counsel's recommendation of dismissal is rejected.

(2) In its investigation, the registry may utilize the provisions of Sections 2 to 5 of this administrative regulation. The investigation may include field investigations, audits, and other methods of information gathering.

Section 2. Written Question Under Oath. The registry may authorize its chairman or general counsel to issue an order requiring any person to submit sworn written answers to written questions and may specify a date by which the answers shall be submitted.

Section 3. Subpoenas; Depositions.

(1) The registry may authorize its chairman or general counsel to issue subpoenas requiring the attendance and testimony of any person by deposition or at a hearing. The registry may issue subpoenas duces tecum for the production of documentary or other tangible evidence in connection with an investigation, deposition, or a hearing.

(2) If oral testimony is ordered to be taken by deposition or documents are ordered to be produced, the subpoena shall so state and shall advise the deponent or person subpoenaed that all testimony shall be given under oath. A deposition may be taken before any person having the power to administer oaths.

(3) The Kentucky Rules of Civil Procedure, Rule 30.05, shall govern the opportunity to review and sign depositions taken pursuant to this section.

Section 4. Service of Subpoenas, Orders, and Notifications.

(1) Service of a subpoena, order, or notification upon a person named therein shall be made by delivering a copy to that person in the manner prescribed by this section.

(2) If service is to be made upon a person who has advised the registry of representation by an attorney, the service shall be made upon the attorney by any of the methods specified in subsection (3) of this section and a copy shall be sent to the individual.

(3)

(a) Delivery of subpoenas, orders, and notifications to a natural person may be made by:

1. Handing a copy to the person;

2. Leaving a copy at the person's dwelling place or usual place of abode with a person of suitable age and discretion residing therein;

3. Mailing a copy by registered or certified mail to the person's last known address; or

4. Another method if actual notice is given.

(b) If the person to be served is not a natural person, delivery of subpoenas, orders, and notifications may be made by:

1. Mailing a copy by registered or certified mail to the person at its place of business;

2. Handing a copy to a registered agent for service, or to any officer, director, or agent in charge of any office of the person;

3. Mailing a copy by registered or certified mail to the representative at the representative's last known address; or

4. Another method by which actual notice is given.

Section 5. Motions to Quash or Modify a Subpoena.

(1) A person to whom a subpoena is directed may, prior to the time specified therein for compliance, but no later than five (5) days after the date of receipt of the subpoena, move the registry to quash or modify the subpoena, accompanying the motion with a brief statement of the reasons therefore. Motions to quash shall be filed with the general counsel, Registry of Election Finance, 140 Walnut Street, Frankfort, Kentucky 40601.

(2) The registry may deny the motion, quash the subpoena, or modify the subpoena.

(3) The person subpoenaed and the general counsel may agree to change the date, time, or place of a deposition or the conditions for the production of documents without affecting the force and effect of the subpoena, but any modifications shall be confirmed in writing.

Section 6. Briefing Procedures.

(1)

(a) Upon completion of the investigation, the general counsel shall make a report of the findings of the registry.

(b) If the registry determines that the information obtained in the course of the investigation is insufficient to support a finding of probable cause or to provide a basis for dismissal of the action, it may direct the general counsel to prepare a brief setting forth his or her position on the alleged factual and legal issues of the case.

(c) The registry may request the respondent to appear to present additional information, or the respondent may request he or she be allowed to present additional evidence.

(d) The decision as to whether the respondent may present additional evidence shall be within the determination of the registry.

(2) The general counsel shall provide a copy of the brief to the respondent who may, within fifteen (15) days of receipt of the general counsel's brief, file a brief with the registry setting forth the respondent's position on the factual and legal issues of the case.

Section 7. Probable Cause Finding; Notification.

(1) If the registry determines that there is probable cause to believe that a respondent may have or is about to violate campaign finance law, the general counsel shall notify the respondent and complainant by letter.

(2) If the registry finds no probable cause or otherwise orders a termination of its proceedings, the general counsel shall notify respondent and complainant by letter.

Section 8. Noncompliance with Reporting Requirements; Probable Cause Determination.

(1) Prima facie evidence that probable cause to believe that a violation has occurred exists and the general counsel and executive director may immediately enter into conciliation negotiations with a respondent if:

(a) Any person subject to the provisions of KRS 121.180 fails to comply with any reporting requirement contained in that section; or

(b) Any candidate or slate of candidates does not revoke a request for exemption in a timely manner as described in KRS 121.180(1)(b), making the candidate or slate of candidates subject to the $500 penalty imposed in KRS 121.180(1)(k).

(2) A candidate or slate of candidates shall be deemed to have not revoked a request for exemption in a timely manner for purposes of subsection (1)(b) of this section if:

(a) The candidate or slate of candidates electronically files an amended Statement of Spending Intent beyond the deadlines established in KRS 121.180; or

(b) Reports the receipt of contributions or the expenditures of funds in excess of $3,000 once the time to amend the Statement of Spending Intent has passed.

(3) The notice required by KRS 121.140(2) shall be issued when the registry's staff concludes any applicable deadlines related to the filing of required reports or revocation of a request for exemption made under KRS 121.180(1)(b) have passed.

(4) A conciliation agreement pertaining to a violation of KRS 121.180 shall not be binding upon either party until it is signed by the respondent, the general counsel, and the executive director, and approved by the registry.

32 KAR 2:040

19 Ky.R. 1234; 1526; eff. 1-4-1993; Crt eff. 9-27-2019; 50 Ky.R. 405, 1046; eff. 1/30/2024.

STATUTORY AUTHORITY: KRS 121.120(1)(g)