SB-0113, As Passed Senate, May 19, 2009

 

 

 

 

 

 

 

 

 

 

 

 

SUBSTITUTE FOR

 

SENATE BILL NO. 113

 

 

 

 

 

 

 

 

 

 

     A bill to amend 1976 PA 388, entitled

 

"Michigan campaign finance act,"

 

by amending section 15 (MCL 169.215), as amended by 2001 PA 250.

 

THE PEOPLE OF THE STATE OF MICHIGAN ENACT:

 

     Sec. 15. (1) The secretary of state shall do all of the

 

following:

 

     (a) Make available through his or her offices, and furnish to

 

county clerks, appropriate forms, instructions, and manuals

 

required by this act.

 

     (b) Develop a filing, coding, and cross-indexing system for

 

the filing of required reports and statements consistent with the

 

purposes of this act, and supervise the implementation of the

 

filing systems by the clerks of the counties.

 

     (c) Receive all statements and reports required by this act to

 

be filed with the secretary of state.

 

     (d) Prepare forms, instructions, and manuals required under

 

this act.

 

     (e) Promulgate rules and issue declaratory rulings to

 

implement this act in accordance with the administrative procedures

 

act of 1969, 1969 PA 306, MCL 24.201 to 24.328.

 

     (f) Upon receipt of a written request and the required filing,

 

waive payment of a late filing fee if the request for the waiver is

 

based on good cause and accompanied by adequate documentation. One

 

or more of the following reasons constitute good cause for a late

 

filing fee waiver:

 

     (i) The incapacitating physical illness, hospitalization,

 

accident involvement, death, or incapacitation for medical reasons

 

of a person required to file, a person whose participation is

 

essential to the preparation of the statement or report, or a

 

member of the immediate family of these persons.

 

     (ii) Other unique, unintentional factors beyond the filer's

 

control not stemming from a negligent act or nonaction so that a

 

reasonably prudent person would excuse the filing on a temporary

 

basis. These factors include the loss or unavailability of records

 

due to a fire, flood, theft, or similar reason and difficulties

 

related to the transmission of the filing to the filing official,

 

such as exceptionally bad weather or strikes involving

 

transportation systems.

 

     (2) A declaratory ruling shall be issued under this section

 

only if the person requesting the ruling has provided a reasonably

 

complete statement of facts necessary for the ruling or if the

 

person requesting the ruling has, with the permission of the

 

secretary of state, supplied supplemental facts necessary for the

 

ruling. A request for a declaratory ruling that is submitted to the

 

secretary of state shall be made available for public inspection

 

within 48 hours after its receipt. An interested person may submit

 

written comments regarding the request to the secretary of state

 

within 10 business days after the date the request is made

 

available to the public. Within 45 business days after receiving a

 

declaratory ruling request, the secretary of state shall make a

 

proposed response available to the public. An interested person may

 

submit written comments regarding the proposed response to the

 

secretary of state within 5 business days after the date the

 

proposal is made available to the public. Except as otherwise

 

provided in this section, the secretary of state shall issue a

 

declaratory ruling within 60 business days after a request for a

 

declaratory ruling is received. If the secretary of state refuses

 

to issue a declaratory ruling, the secretary of state shall notify

 

the person making the request of the reasons for the refusal and

 

shall issue an interpretative statement providing an informational

 

response to the question presented within the same time limitation

 

applicable to a declaratory ruling. A declaratory ruling or

 

interpretative statement issued under this section shall not state

 

a general rule of law, other than that which is stated in this act,

 

until the general rule of law is promulgated by the secretary of

 

state as a rule under the administrative procedures act of 1969,

 

1969 PA 306, MCL 24.201 to 24.328, or under judicial order.

 

     (3) Under extenuating circumstances, the secretary of state

 

may issue a notice extending for not more than 30 business days the

 

period during which the secretary of state shall respond to a

 

request for a declaratory ruling. The secretary of state shall not

 

issue more than 1 notice of extension for a particular request. A

 

person requesting a declaratory ruling may waive, in writing, the

 

time limitations provided by this section.

 

     (4) The secretary of state shall make available to the public

 

an annual summary of the declaratory rulings and interpretative

 

statements issued by the secretary of state.

 

     (5) A person may file with the secretary of state a complaint

 

that alleges a violation of this act. Within 5 business days after

 

a complaint that meets the requirements of subsection (6) is filed,

 

the secretary of state shall give notice to the person against whom

 

the complaint is filed. The notice shall include a copy of the

 

complaint. Within 15 business days after this notice is provided,

 

the person against whom the complaint was filed may submit to the

 

secretary of state a response. The secretary of state may extend

 

the period for submitting a response an additional 15 business days

 

for good cause. The secretary of state shall provide a copy of a

 

response received to the complainant. Within 10 business days after

 

receiving a copy of the response, the complainant may submit to the

 

secretary of state a rebuttal statement. The secretary of state may

 

extend the period for submitting a rebuttal statement an additional

 

10 business days for good cause. The secretary of state shall

 

provide a copy of the rebuttal statement to the person against whom

 

the complaint was filed.

 

     (6) A complaint under subsection (5) shall satisfy all of the

 

following requirements:

 

     (a) Be signed by the complainant.

 

     (b) State the name, address, and telephone number of the

 

complainant.

 

     (c) Include the complainant's certification that, to the best

 

of the complainant's knowledge, information, and belief, formed

 

after a reasonable inquiry under the circumstances, each factual

 

contention of the complaint is supported by evidence. However, if,

 

after a reasonable inquiry under the circumstances, the complainant

 

is unable to certify that certain factual contentions are supported

 

by evidence, the complainant may certify that, to the best of his

 

or her knowledge, information, or belief, there are grounds to

 

conclude that those specifically identified factual contentions are

 

likely to be supported by evidence after a reasonable opportunity

 

for further inquiry.

 

     (7) The secretary of state shall develop a form that satisfies

 

the requirements of subsection (6) and may be used for the filing

 

of complaints.

 

     (8) A person who files a complaint with a false certificate

 

under subsection (6)(c) is responsible for a civil violation of

 

this act. A person may file a complaint under subsection (5)

 

alleging that another person has filed a complaint with a false

 

certificate under subsection (6)(c).

 

     (9) The secretary of state shall investigate the allegations

 

under the rules promulgated under this act. Every 60 days after a

 

complaint that meets the requirements of subsection (6) is filed

 

and until the matter is terminated, the secretary of state shall

 

Senate Bill No. 113 as amended May 14, 2009

 

mail to the complainant and to the alleged violator notice of the

 

action taken to date by the secretary of state, together with the

 

reasons for the action or nonaction.

 

     (10) If No later than 60 business days after receipt of a

 

rebuttal statement submitted under subsection (5), or if no

 

response or rebuttal is received under subsection (5), the

 

secretary of state determines that shall post on the secretary of

 

state's internet website whether or not there may be reason to

 

believe that a violation of this act has occurred. If the secretary

 

of state determines that there may be reason to believe that a

 

violation of this act occurred, the secretary of state shall,

 

within 5 business days of that determination, post on the secretary

 

of state's internet website any complaint, response, or rebuttal

 

statement received under subsection (5) regarding that violation <<and

any correspondence regarding that violation between the secretary of state and the complainant or the person against whom the complaint was filed>>.

 

If the secretary of state determines that there may be reason to

 

believe that a violation of this act occurred, the secretary of

 

state shall endeavor to correct the violation or prevent a further

 

violation by using informal methods such as a conference,

 

conciliation, or persuasion, and may enter into a conciliation

 

agreement with the person involved. Unless violated, a conciliation

 

agreement is a complete bar to any further action with respect to

 

matters covered in the conciliation agreement. If, after 30

 

business days, the secretary of state is unable to correct or

 

prevent further violation by these informal methods, the secretary

 

of state may refer shall do either of the following:

 

     (a) Refer the matter to the attorney general for the

 

enforcement of a any criminal penalty provided by this act. or

 

commence If the secretary of state refers a matter to the attorney

 

general under this subsection, the attorney general may refer the

 

matter to the prosecuting attorney of the county where the

 

violation occurred for the enforcement of any criminal penalty

 

provided by this act.

 

     (b) Commence a hearing as provided in subsection (11) for

 

enforcement of any civil violation.

 

     (11) The secretary of state may shall commence a hearing to

 

determine whether a civil violation of this act has occurred. A

 

hearing shall not be commenced during the period beginning 30 days

 

before an election in which the committee has received or expended

 

money and ending the day after that election except with the

 

consent of the person suspected of committing a civil violation.

 

The hearing shall be conducted in accordance with the procedures

 

set forth in chapter 4 of the administrative procedures act of

 

1969, 1969 PA 306, MCL 24.271 to 24.287. If after a hearing the

 

secretary of state determines that a violation of this act has

 

occurred, the secretary of state may shall issue an order requiring

 

the person to pay a civil fine equal to triple the amount of the

 

improper contribution or expenditure plus not more than $1,000.00

 

for each violation.

 

     (12) A final decision and order issued by the secretary of

 

state is subject to judicial review as provided by chapter 6 of the

 

administrative procedures act of 1969, 1969 PA 306, MCL 24.301 to

 

24.306. The secretary of state shall deposit a civil fine imposed

 

under this section in the general fund. The secretary of state may

 

bring an action in circuit court to recover the amount of a civil

 

fine.

 

     (13) When a report or statement is filed under this act, the

 

secretary of state shall review the report or statement and may

 

investigate an apparent violation of this act under the rules

 

promulgated under this act. If the secretary of state determines

 

that there may be reason to believe a violation of this act has

 

occurred and the procedures prescribed in subsection (10) have been

 

complied with, the secretary of state may refer the matter to the

 

attorney general for the enforcement of a criminal penalty provided

 

by this act, or commence a hearing under subsection (11) to

 

determine whether a civil violation of this act has occurred.

 

     (14) No later than 60 business days after a matter is referred

 

to the attorney general or county prosecuting attorney for

 

enforcement of a criminal penalty, the attorney general or county

 

prosecuting attorney shall determine whether to proceed with

 

enforcement of that penalty.

 

     (15) (14) Unless otherwise specified in this act, a person who

 

violates a provision of this act is subject to a civil fine of not

 

more than $1,000.00 for each violation. A civil fine is in addition

 

to, but not limited by, a criminal penalty prescribed by this act.

 

     (16) (15) In addition to any other sanction provided for by

 

this act, the secretary of state may require a person who files a

 

complaint with a false certificate under subsection (6)(c) to do

 

either or both of the following:

 

     (a) Pay to the secretary of state some or all of the expenses

 

incurred by the secretary of state as a direct result of the filing

 

of the complaint.

 

     (b) Pay to the person against whom the complaint was filed

 

some or all of the expenses, including, but not limited to,

 

reasonable attorney fees incurred by that person in proceedings

 

under this act as a direct result of the filing of the complaint.

 

     (17) (16) There is no private right of action, either in law

 

or in equity, under this act. The remedies provided in this act are

 

the exclusive means by which this act may be enforced and by which

 

any harm resulting from a violation of this act may be redressed.

 

     (18) (17) The secretary of state may waive the filing of a

 

campaign statement required under section 33, 34, or 35 if the

 

closing date of the particular campaign statement falls on the same

 

or a later date as the closing date of the next campaign statement

 

filed by the same person, or if the period that would be otherwise

 

covered by the next campaign statement filed by the same person is

 

10 days or less.

 

     (19) (18) The clerk of each county shall do all of the

 

following:

 

     (a) Make available through the county clerk's office the

 

appropriate forms, instructions, and manuals required by this act.

 

     (b) Under the supervision of the secretary of state, implement

 

the filing, coding, and cross-indexing system prescribed for the

 

filing of reports and statements required to be filed with the

 

county clerk's office.

 

     (c) Receive all statements and reports required by this act to

 

be filed with the county clerk's office.

 

     (d) Upon written request, waive the payment of a late filing

 

fee if the request for a waiver is based on good cause as

 

prescribed in subsection (1)(f).