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HomeMy WebLinkAboutCOUNCIL - AGENDA ITEM - 07/17/2018 - ELECTION CODE AMENDMENTSDATE: STAFF: July 17, 2018 Delynn Coldiron, City Clerk Rita Knoll, Chief Deputy City Clerk Ryan Malarky, Legal Carrie Daggett, City Attorney WORK SESSION ITEM City Council SUBJECT FOR DISCUSSION Election Code Amendments. EXECUTIVE SUMMARY The purpose of this item is to discuss proposed amendments to the City’s election campaign code provisions that will raise the threshold requirement for reporting of independent expenditures, ensure that the campaign violation complaint process applies to reporting of independent expenditures, and require “paid for by” disclaimers on campaign communications for registered committees. GENERAL DIRECTION SOUGHT AND SPECIFIC QUESTIONS TO BE ANSWERED 1. What concerns or questions does Council have regarding the proposed Code amendments? 2. Should staff bring the proposed Code amendments forward for Council consideration on July 24, 2018? BACKGROUND / DISCUSSION In 2015, Council formed an ad hoc committee to review, discuss and recommend changes to the City Code and Charter regarding elections and other related matters. In 2017, Council made the ad hoc committee a standing committee of the Council for the purpose of identifying and evaluating ideas for improvements to City election laws and practices and anticipating adjustments that may be needed to adapt to a rapidly changing legal and technological environment. Councilmembers Cunniff, Overbeck, and Stephens have continuously served in this capacity since 2015. Since the original formation of the ad hoc Committee, Council has considered and adopted four Ordinances amending various provisions of Chapter 7. This Ordinance represents a continuation of the work to make improvements. Most of the amendments contained in this Ordinance are considered to be noncontroversial, and enacting them at this time will be advantageous as preparations begin for the 2019 City Election. A summary of the proposed amendments, in the order they appear in the ordinance follows: Increased Threshold for Reporting Independent Expenditures: This Ordinance will change the threshold requirements for reporting independent expenditures from $100 to $1,000. Staff research has found that there is some movement by courts to scrutinize more closely burdens on political speech. As well, staff research found that other Colorado jurisdictions have higher thresholds ranging from $250 to $1,000, with $1,000 being the most prevalent limit. Similarly, the State of Colorado requires certain report regulations for independent expenditures exceeding $1,000. This change has been recommended by the Election Code Committee to more appropriately align the City’s reporting requirements for independent expenditures with applicable law and other jurisdictions. July 17, 2018 Page 2 Extension of Campaign Violation Provisions to Independent Expenditures Staff has identified that the current Code provisions establishing the complaint process for campaign violations do not specifically cover violations by persons regarding independent expenditures. This Ordinance provides a change to add independent expenditure violations to the list of actions subject to the citizen complaint process. NOTE: The need for correction was discovered after the last meeting of the Committee, and the Committee has not had an opportunity to discuss it. “Paid for By” Disclaimer on Campaign Communications This Ordinance requires a “paid for by” disclaimer on campaign communications for all registered committees. Because registered committees are already subject to reporting and other process requirements, it was determined that this added step would not be unreasonably burdensome and would provide important transparency to the voting public in connection with local campaign literature and advertising. Staff is not recommending at this time that the City require “paid for by” disclaimers for communications by others that are not registered committees, such as those paid for as independent expenditures, pending updated direction from the courts on this issue. This change has been recommended by the Election Code Committee. Next Steps If Council supports consideration of the proposed Code amendments, staff requests they be considered on First Reading on July 24, with Second Reading on August 21, so that any proposed changes that are adopted can be included in election materials in September. City Clerk staff is striving to have all election materials available to the public in September. One candidate is already registered for the April 2019 election and is awaiting candidate guidelines and related forms. ATTACHMENTS 1. Proposed Code Amendments (draft) (DOCX) 2. July 5, 2018 minutes (draft) (PDF) 3. Powerpoint presentation (PPTX) DRAFT FOR DISCUSSION PURPOSES ONLY -1- ORDINANCE NO. ___, 2018 OF THE COUNCIL OF THE CITY OF FORT COLLINS AMENDING CHAPTER 7 OF THE CODE OF THE CITY OF FORT COLLINS TO AMEND REQUIREMENTS AND PROCEDURES RELATED TO CAMPAIGNS AND CAMPAIGN FINANCE IN CITY ELECTIONS WHEREAS, Chapter 7 of the City Code sets out procedures and requirements for redistricting of Council districts, for the conduct of City elections, for disclosure of campaign finance information, and other related matters; and WHEREAS, in 2015, the City Council formed an ad hoc committee, including Councilmembers Cunniff, Overbeck and Stephens, to review, discuss and recommend the most beneficial changes to the Code and City Charter regarding elections and other related matters; and WHEREAS, in January 2017, Council made the ad hoc Committee a standing committee of the Council for the purpose of identifying and evaluating ideas for improvements to City election laws and practices and anticipating adjustments that may be needed to adopt to a changing legal and technological environment, for Council consideration; and WHEREAS, as a result of the Committee’s work (as both an ad hoc committee and a standing committee), Ordinance No. 021, 2016, Ordinance No. 005, 2017, Ordinance No. 045, 2018, and Ordinance No. 077, 2018, were considered and adopted by the Council to update various provisions of Chapter 7; and WHEREAS, the Committee continued to meet in 2017 and 2018, and has recommended additional clarifications and amendments to Chapter 7; and WHEREAS, the Committee has recommended that the threshold for reporting independent expenditures be raised from $100 to $1,000; and WHEREAS, the Committee has recommended the creation of a new requirement that committees otherwise required to register with the City also be required to include disclaimers on campaign communications to identify the committee making the communication, whether the communication is coordinated with a candidate, and the source of funding for the communication; and WHEREAS, staff has recommended that the citizen complaint process for campaign violations be changed to also apply to violations committed by individual persons, including violations related to independent expenditures; and WHEREAS, these amendments generally improve and clarify the City’s campaign finance disclosure and election requirements and processes; and DRAFT FOR DISCUSSION PURPOSES ONLY -2- WHEREAS, these amendments further the City’s interest in shedding light for the public on the expenditure of money to influence the outcome of City elections, while balancing the speakers’ interest in freedom of political speech; and WHEREAS, the Council desires to enact the recommendations of the Committee and staff in order to clarify and improve the various provisions of Chapter 7, as set forth below. NOW, THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE CITY OF FORT COLLINS as follows: Section 1. That the City Council hereby makes and adopts the determinations and findings contained in the recitals set forth above. Section 2. That Section 7-139 of the Code of the City of Fort Collins is hereby amended to read as follows: Sec. 7-139. Independent expenditures. Any person or political committee making independent expenditures totaling more than one hundred dollars ($100.) one thousand dollars ($1,000.) shall deliver notice in writing of such independent expenditures to the City Clerk no later than three (3) business days after the day that such funds are obligated. Said notice shall include the following information: . . . Section 3. That reserved Section 7-140 of the Code of the City of Fort Collins is hereby amended to read as follows: Sec. 7-140. Responsibility for communications. (a) Whenever a candidate, candidate committee, issue committee, or political committee makes an expenditure for the purpose of financing communications expressly advocating a particular result in an election, or solicits any contribution or contribution in- kind through any broadcasting station, newspaper, magazine, outdoor advertising facility, direct mailing or any other type of general public political advertising, such communication if paid for or authorized by a candidate, candidate committee, issue committee, or political committee or their agents, shall clearly state that the communication is paid for by that candidate, candidate committee, issue committee, or political committee. (b) In regard to the different forms of communication set forth in subsection (a) of this Section 7-140, “communication” shall include, but shall not be limited to: (1) Websites of a candidate, candidate committee, political committee, or issue committee available to the general public; and DRAFT FOR DISCUSSION PURPOSES ONLY -3- (2) Advertisements placed for a fee on another person’s website. (c) The statement required by this Section 7-140 must be clear and conspicuous in the communication. The statement required herein shall not apply to communications where including the statement would be impractical, such as: (1) Bumper stickers, pins, buttons, pens and similar small items upon which the disclaimer cannot be conveniently printed; (2) Skywriting, water towers, wearing apparel, or other means of displaying an advertisement of such a nature that the inclusion of a disclaimer would be impracticable; or (3) Checks, receipts, and similar items of minimal value that are used for purely administrative purposes and do not contain a political message. (d) Nothing herein shall be deemed to alleviate any person from complying with federal campaign finance law, as applicable. Section 4. That Section 7-145 of the Code of the City of Fort Collins is hereby amended to read as follows: Sec. 7-145. Allegation of campaign violation. (a) Any candidate or registered elector of the City ("complainant") who has reason to believe a violation of Chapter 7, Article V, of this Code, has occurred by any person, candidate, candidate committee, issue committee, small-scale issue committee or political committee may file a written complaint to the City Clerk, no later than sixty (60) days after the alleged violation has occurred. . . . Introduced, considered favorably on first reading, and ordered published this 17th day of June, A.D. 2018, and to be presented for final passage on the 21st day of August, A.D. 2018. __________________________________ Mayor ATTEST: _____________________________ City Clerk Passed and adopted on final reading on this 21st day of August, A.D. 2018. DRAFT FOR DISCUSSION PURPOSES ONLY -4- __________________________________ Mayor ATTEST: _____________________________ City Clerk City of Fort Collins Page 1 July 5, 2018 ELECTION CODE COMMITTEE MEETING 12:00 PM PRESENT: Overbeck, Stephens, Coldiron, Malarky, Knoll, Gonzales, Daggett (Councilmember Cunniff was absent) CITIZENS PRESENT: Marge Norskog, Jody Deschenes, Sam Houghteling 1. CALL MEETING TO ORDER Councilmember Stephens called the meeting to order. 2. CITIZEN COMMENT Marge Norskog thanked the Committee for its thoughtful approach to evaluating and recommending changes to the Election Code. She discussed a meeting she and others had with Councilmembers Martinez and Summers wherein two outstanding issues were discussed: “paid for by” statements and adding resources to the City Clerk’s Office budget for election support. She stated both Councilmembers seemed supportive of a “paid for by” statement on all election communications and were both open to the possibility of adding resources to the Clerk’s Office; however, they were unable to commit support without having the context of how it fits into the budget. She requested the Committee add an item to the agenda to provide an update on the City Clerk’s budget offer for additional resources and to discuss what assistance citizens might offer in advocating for increasing election funding before the citizen comment period closes on July 8. City Clerk Coldiron stated all offers have been submitted and the Budget Lead Team will start its work this week. Councilmember Stephens noted citizens have the ability to comment on the budget process beyond July 8 in the form of emails or other correspondence, work sessions, and two public hearings. Councilmember Overbeck stated citizen comments are most effective throughout the budget evaluation process. City Attorney Daggett noted the City Manager makes a formal budget recommendation to Council in early September; therefore, it may be difficult for Councilmembers to effectively respond to citizen comments until after that time. 3. APPROVAL OF MAY 3, 2018 COMMITTEE MEETING MINUTES Councilmember Overbeck made a motion, seconded by Councilmember Stephens, to adopt the May 3, 2018 Committee meeting minutes. The motion was adopted by unanimous consent. 4. ELECTION-RELATED CHANGES FOR DISCUSSION a. Independent Expenditures – Expenditure Amount Triggering Reporting Requirement City Attorney Daggett stated staff has discussed the possible benefit in asking the Committee to consider an increase in the triggering threshold for independent expenditures. She noted the existing threshold of $100 is quite low and is a strict requirement. Longmont and Loveland both have slightly higher thresholds and Denver and the State have $1000 thresholds. City Attorney Daggett stated staff has suggested a $200 threshold, which matches the initial threshold for small-scale issue committees. Councilmembers Overbeck and Stephens supported the $200 threshold as recommended. Malarky stated the important issue is to capture significant expenditures while being mindful of not being too stringent. ATTACHMENT 2 City of Fort Collins Page 2 b. “Paid for By” Statements Malarky noted staff has provided a detailed memo regarding some of the legal issues around a “paid for by” requirement. He stated staff has provided a suggested Code revision that would apply a “paid for by” statement requirement to candidates, candidate committees, issue committees, political committees, as well as independent expenditures for a qualifying communication. Malarky stated this requirement mirrors that of the City and County of Denver and includes language similar to federal language regarding the form and technical aspects of the disclaimer. Councilmember Overbeck requested additional clarity related to what materials should require the disclaimer. Malarky stated messages within envelopes should have the disclaimer and City Attorney Daggett suggested the possibility of the exterior envelope requiring the disclaimer. Councilmember Stephens suggested the main issue is with large fliers with a great deal of text and statements represented as fact rather than with simple messages such as “Vote for Bob Overbeck.” Councilmember Overbeck asked if the City and County of Denver’s Code language was written recently. Malarky replied some language changes have been made recently; however, the general disclaimer requirement has been in its Code since the 1990s or early 2000s. Councilmember Stephens stated she would consider holding an executive session to seek legal advice concerning this topic. Councilmember Overbeck made a motion, seconded by Councilmember Stephens, that the Election Code Committee go into Executive Session for the purpose of meeting with the City Attorney and staff to discuss specific legal questions related to the manner in which particular policies, practices, or regulations of the City related to campaign finance disclosures and disclaimers may be affected by existing or proposed provisions of federal, state, or local law, as permitted under Section 2-31(a)(2) of the City Code and Colorado Revised Statute Section 24-6-402(4)(b). The motion was adopted by unanimous consent. (Secretary’s Note: The Committee went into Executive Session at this point in the meeting.) After the executive session, Councilmember Stephens made a motion to change the “paid for by” disclosure requirement to apply only to registered committees. City Attorney Daggett and Malarky discussed necessary language changes. Councilmember Overbeck agreed with the proposed change. Independent Expenditures (continued) Councilmember Overbeck made a motion, seconded by Councilmember Stephens, to reconsider Section 7-139, Independent Expenditures. The motion was adopted by unanimous consent. Councilmember Stephens stated it may be better for the City to be in line with the state on independent expenditures, which has a $1000 threshold. Councilmember Overbeck agreed and bringing the change forward for Council consideration was supported by unanimous consent. 5. EDUCATION/ORIENTATION City Clerk Coldiron stated dialogue from the last meeting included the suggestion of having some type of educational class for voters, potential candidates, or heads of issue committees. The Clerk’s Office would like to consider this possibility; however, there may not be enough resources to make it happen for the 2019 election. The Clerk’s Office would like to invite people in for some type of City Works 101-type class on elections, perhaps in January. City of Fort Collins Page 3 Councilmember Overbeck stated the Secretary of State’s office provides orientations for County and State candidates. He suggested the creation of a video informing citizens and potential candidates of the new changes prior to gaining necessary resources for a more detailed orientation. Chief Deputy City Clerk Knoll stated the Clerk’s Office is planning to provide handouts highlighting changes when committees register. City Attorney Daggett stated using a form of communication wherein everyone receives the same information is preferable. 6. OTHER BUSINESS City Attorney Daggett stated staff will work on an Ordinance to be presented before Council for First Reading on July 17. Chief Deputy City Clerk Knoll stated staff would like to have new guidelines available in September. Committee members discussed the timeline and necessity for upcoming meetings and opted to cancel the remaining meetings scheduled for 2018 and to meet after the April 2019 election. 7. ADJOURNMENT The meeting adjourned by unanimous consent at 1:40 PM. July 17, 2018 Election Code Amendments Delynn Coldiron, City Clerk; Rita Knoll, Chief Deputy City Clerk Carrie Daggett, City Attorney Changes Discussed • Independent Expenditure Reporting • Independent Expenditure Violations • “Paid for By” Disclaimers 2 General Direction/Questions 1. What concerns or questions does Council have regarding the proposed Code amendments? 2. Should staff bring the proposed Code amendments forward for Council consideration on July 24, 2018? 3 Proposed Code Amendments 4 Issue Recommended Action 1. Independent Expenditure Reporting Threshold 2. Independent Expenditure Violations Adopt Code language changing threshold requirement from $100 to $1,000. Adopt Code language to ensure failure to report independent expenditures is covered under complaint process provisions. Proposed Code Amendments 5 Issue Recommended Action 3. Paid for By Disclaimer • Require for registered committees • Reporting and other requirements • Independent expenditures not included • Incremental approach will allow review of impacts before expanding requirement Enforcement 6 Image from showmeinstitute.org Options/Next Steps 1. No further changes recommended due to significant changes already made and not yet tested. 2. Move forward with these changes. 1. First Reading – July 24, 2018 2. Second Reading – August 21, 2018 7 General Direction/Questions 1. What concerns or questions does Council have regarding the proposed Code amendments? 2. Should staff bring the proposed Code amendments forward for Council consideration on July 24, 2018? 8 Questions THANK YOU! 9