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COMPLAINT PROCESSING PROCEDURE OUTLINE (Updated 2/2/12)

Posted By gaethics On March 3, 2011 @ 7:42 pm In | No Comments

ENFORCEMENT AND COMPLIANCE

It is the duty of the Georgia Government Transparency and Campaign Finance Commission (Commission) to enforce the Campaign Finance Act (Act).

The cases considered by the Commission are initiated in two ways:

1) the filing of sworn, written complaints alleging a violation of the Act;

2) the Commission filing its form of complaint referred to as a probable cause matter.

Complaints investigated by the Commission are either settled, dismissed or proceed to a preliminary hearing before the full Commission. If the Commission finds reasonable grounds to believe a violation of the Act has occurred, the matter proceeds to a hearing before an administrative hearing officer.

By law, the Commission has authority to impose penalties for violations of the Act, which range from assessing civil penalties and administrative costs, orders to take remedial action, suspending or revoking a lobbyist’s registration privileges, to reporting of suspected violations of law to the appropriate law enforcement authority, when necessary.

JURISDICTION

The Georgia Government Transparency and Campaign Finance Commission only has authority to investigate alleged violations of the Georgia Government Transparency and Campaign Finance Act (Act), O.C.G.A. 21-5-1 through 21-5-76. These investigations can be initiated by the Commission on its own motion or by a citizen complaint.

The Act encompasses a number of different types of violations, all of which concern the agency’s core mission of promoting transparency, compliance and disclosure. General types of violations under the Act include:

  • Failure to file required disclosure reports (by Candidates, Public officers, lobbyists, campaign committees, independent committees etc)
  • Filing false, inaccurate, incomplete disclosure reports (by Candidates, Public officers, lobbyists, campaign committees, independent committees etc)
  • Misuse of campaign funds (by Candidates, Public officers)
  • Contributions from prohibited sources or in excess of the contribution limits (by contributors, PACs, Candidates, Public officers)
  • Contributions by a state agency (by state agencies, PACs, Candidates, Public officers)
  • Failure to register as a candidate or committee when required by the Act (by candidate, campaign committee, PACs, independent committees)
  • Failure to register as a Lobbyist (by Lobbyists)

The Commission does NOT have jurisdiction to investigate:

  • Ethical/ moral conduct of candidates/lobbyists/public officers
  • Conflict of interest laws (outside of failure to disclose such interests on proper forms)
  • Misuse of State/ local funds
  • Activities of state employees (outside of failure to file disclosure forms when required)
  • Violations of other provisions of the Elections code
  • Violations of criminal law
  • Judicial behavior or decisions

 

HOW TO FILE A COMPLAINT

All complaints to be considered by the Commission are required be filed in writing with the Commission and shall contain the following:

  • The name and address of the person or persons who file the complaint.
  • The sworn verification and signature of the complainant.
  • The name and address of the party or parties against whom the complaint is filed, and if any such party is a candidate, the office being sought.
  • A clear and concise statement of the facts upon which the complaint is based along with an allegation that such facts constitute one or more violations of law under the jurisdiction of the Commission.
  • A general reference to the statutory provision(s) of the Campaign Finance Act, Vendor Gift Disclosure Law, Commission Rule, or any other statute within the jurisdiction of the Commission allegedly violated.
  • Any further information which might support the allegations in the complaint including, but not limited to, the name and address of all other persons who have firsthand knowledge of the facts alleged in the complaint and any documentary evidence that supports the facts alleged in the complaint. However, it is not necessary to send the Commission copies of disclosure reports that are maintained by the Commission.

Any complaint that does not contain the above requirements will not be accepted by the Commission staff and will be returned to the Complainant. The Commission staff does not accept anonymous complaints.

AFTER THE COMPLAINT HAS BEEN FILED

Once a complaint is filed, it will proceed through a number of steps laid out by the Act:

Commission staff will review the complaint to determine whether the allegations are legally sufficient, that is, whether the allegations indicate a possible violation of the Act.

  1. If the complaint is found not to be legally sufficient, the Commission staff will dismiss the complaint without further investigation.
  2. If the complaint is found to be legally sufficient, a case will be opened and Commission staff must forward a copy of the original sworn complaint to the Respondent within 3 business days of its receipt. Copies of any subsequent sworn amendments to the complaint will also be sent to the Respondent.
  3. The Respondent has 30 days from receipt of the complaint to respond to the complaint in writing, if desired.
  4. The Commission’s staff will conduct an investigation of all complaints. Depending on the date of case filing, type of allegation, the type of case, the degree of evidence provided, the ease of obtaining such evidence and the duration of the complained of conduct, the investigation stage may last for a brief or extended period of time.  The investigation of a complaint typically includes one or more of the following to be conducted:
    1. Audit of applicable reports
    2. Research
    3. Commission staff may conduct interviews
    4. Commission staff may request additional documentation from the Complainant, Respondent, or other government agencies or third party vendors
    5. Commission may issue subpoenas
  5. If the Commission staff should determine that there is no basis for proceeding on a complaint under the Act or any other statute within the jurisdiction of the Commission, the staff shall so notify the Complainant and administratively dismiss the complaint without requiring any formal action by the Commission.
  6. Commission staff may uncover additional potential violations of the Act in the course of investigation. In that event, the Respondent will be given notice as to the additional violations and he/she will then have 14 days from the date of the notice to provide a written response.
  7. In the course of the investigation, the Commission staff will create an Investigative Report, and make recommendations for case resolution, including what further action, if any, should be taken. If necessary, the Commission has the authority to refer the case to law enforcement or a prosecutor’s office for criminal investigation.
  8. After the investigation stage the case is scheduled for a preliminary hearing before the Commission. Both Complainant and Respondent are notified of the scheduled hearing date. At the preliminary hearing, the Commission will hear evidence and make a determination as to whether there are reasonable grounds to believe that a violation has occurred.

10.  If the Commission finds reasonable grounds to believe that the Act has been violated, the case will then proceed to additional hearings pursuant to the Georgia Administrative Procedure Act. However, the Respondent will have 30 days to initiate resolution of the matter with Commission staff prior to an APA hearing.

11.  If the Commission finds no reasonable grounds to believe a violation has occurred, the complaint shall be dismissed, subject to being reopened upon discovery of additional evidence or relevant material.

12.  When the Commission concludes that a violation has been committed, it may recommend one or more penalties to the appropriate disciplinary body or official and issues a public report of its findings.

13.  When the Commission determines that a person has filed a complaint with knowledge that the complaint contains one or more false allegations or with reckless disregard for whether the complaint contains false allegations, the Commission can order the Complainant to pay the attorney fees incurred by the Respondent. The Attorney General’s Office may bring a civil action to recover such fees and costs, if they are not paid willingly.

 

PENALTIES FOR CANDIDATES, COMMITTEES AND PUBLIC OFFICERS

Overall, should the Commission find that any violation within this chapter has taken place, it has authority to issue an order directing the violator:

  • To cease and desist from violating the Act
  • To make public complete statements containing the information required by this chapter (to re-file and correct the reports at issue)
  • To pay a civil penalty of:
    • up to $1000 per violation (for first violation)
    • up to $10,000 per violation (for 2nd violation)
    • Up to $25,000 per violation (for 3rd or subsequent violation)

(For the purposes of the penalties imposed by this division, the same error, act, omission, or inaccurate entry shall be considered a single violation if the error, act, omission, or inaccurate entry appears multiple times on the same report or causes further errors, omissions, or inaccurate entries in that report or in any future reports or further violations in that report or in any future reports) Reference O.C.G.A. § 21-5-6 (14)

In the event that a criminal violation is detected, the Commission has authority to refer cases to the appropriate law enforcement authority for further investigation and prosecution. Reference O.C.G.A. § 21-5-6(11)

While the Commission collects State Business Transaction reports pursuant to O.C.G.A. §45-10-26, the penalties available for violations of that statute can only be enforced by a prosecutor of competent jurisdiction.

EVEN IF THE CANDIDATE/OFFICIAL IS FOUND TO HAVE COMMITTED SERIOUS VIOLATIONS OF THE ACT, THE COMMISSION DOES NOT HAVE THE AUTHORITY TO REMOVE A CANDIDATE FROM THE BALLOT OR REMOVE A PUBLIC OFFICIAL FROM OFFICE.

 

PENALTIES FOR LOBBYIST

In addition, any knowing failure to comply or knowing violation of this chapter constitutes a misdemeanor. Reference O.C.G.A. §21-5-9

With respect to Lobbyists, the Commission has authority to deny, suspend, or revoke the registration of a lobbyist for up to one year and/or impose a civil penalty up to $2,000 per violation , if it finds that the lobbyist:

  1. Has filed an application for registration with the commission which was incomplete in a material respect or contained a statement that was, in light of the circumstances under which it was made, false or misleading with respect to a material fact;
  2. Has willfully violated or willfully failed to comply with this article or a rule promulgated by the Act;
  3. Has failed to comply with the reporting requirements of this article; or
  4. Has engaged in lobbying practices in violation of this article.

Reference O.C.G.A. §21-5-72

 

It should be noted that all of the reports filed with the Commission must be verified and, as such, knowingly filing a false official document under oath with an agency of the state can constitutes a felony, punishable by 1-5 years of imprisonment and/or up to a $1,000 fine. Reference O.C.G.A. §16-10-20 and O.C.G.A. § 16-10-71


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