ALJDEC

01-200002346-AAG · Office of the Attorney General · 2001-09-27

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: September 24, 2001. APPEARANCES: The Appellant, District 23 Democrats, was represented by its Treasurer, Betty Thompson. The Office of the Attorney General was represented by Assistant Attorney General Joseph Kanefield. ADMINISTRATIVE LAW JUDGE: Brian Brendan Tully _____________________________________________________________________ Evidence and testimony were presented and, based upon the entire record, the following Findings of Fact, Conclusions of Law and Recommended Order are made:

FINDINGS OF FACT

1. This matter came on for hearing the appeal of the Office of Attorney General’s Determination of Partial Good Cause wherein that office determined that Appellant failed to timely file its 2000 post-primary, pre-general and post-general reports and, therefore, liable for late fees and penalties in the amount of $450.00. 2. The Appellant, District 23 Democrats, is a political committee which filed a Statement of Organization with the Arizona Secretary of State on or about September 28, 2000. 3. Appellant’s Statement of Organization listed Frank Otero as chairman and Betty J. Thompson as treasurer. The Appellant’s official address was listed as PO Box 90396, Phoenix, Arizona 85066. 4. Appellant is a small organization who raised funds by “passing the hat” among the handful of attendees at its monthly meetings. 5. The undisputed evidence presented at the hearing indicated that, pursuant to A.R.S. § 16-913 (C), Appellant’s 2000 post-primary report for the period covering from August 24, 2000 to October 2, 2000 was required to be filed with the Secretary of State no later than October 12, 2000 at 5:00 p.m. 6. Appellant did not timely file its post-primary report. 7. As a result of Appellant’s failure to timely file its post-primary report, the Office of the Secretary of State sent a letter to Appellant, in care of Betty J. Thompson, at its address of record with that office. That written notification advised Appellant of its failure to timely file its post-primary report and of the ongoing accrual of a daily penalty in the amount of $10.00 from the deadline date for filing until paid, up to a maximum of $450.00. The notice also advised, among other things, that, pursuant to A.R.S. § 16-918(B), the Secretary of State was not permitted to accept Appellant’s post-primary report without full payment of the late fee. 8. The written delinquency notification mailed to Appellant’s address of record was returned to the Secretary of State as undeliverable. 9. Appellant was required to file its 2000 pre-general report with the Secretary of State on or before October 26, 2000 at 5:00 p.m. covering the period from October 3, 2000 to October 18, 2000. 10. Appellant did not timely file its pre-general report. 11. After the statutory due date, a written delinquency notification dated November 1, 2000 was sent by U.S. mail to Appellant’s address of record specifically advising Appellant of its failure to file its pre-general report and the ongoing accrual of a daily penalty in the amount of $10.00 from the deadline date for filing until paid, up to a maximum of $450.00. The notice also advised, among other things, that, pursuant to A.R.S. § 16-918(B), the Secretary of State was not permitted to accept Appellant’s post-primary report without full payment of the late fee. 12. The written delinquency notification for Appellant’s pre-general report was mailed to Appellant’s address of record was returned to the Secretary of State as undeliverable. 13. Appellant was required to file its 2000 post-general report with the Secretary of State on or before December 7, 2000 at 5:00 p.m. covering the period from October 19, 2000 to November 17, 2000. 14. Appellant did not timely file its post-general report. 15. After the statutory due date, a written delinquency notification dated November 1, 2000 was sent by U.S. mail to Appellant’s address of record specifically advising Appellant of its failure to file its pre-general report and the ongoing accrual of a daily penalty in the amount of $10.00 from the deadline date for filing until paid, up to a maximum of $450.00. The notice also advised, among other things, that, pursuant to A.R.S. § 16-918(B), the Secretary of State was not permitted to accept Appellant’s post-primary report without full payment of the late fee. 16. On or about December 15, 2000, J. Brian Finnell, Campaign Finance Supervisor at the Office of the Secretary of State, telephoned Frank Otero, Appellant’s chairman, to discuss Appellant’s failure to timely file its three reports. 17. On or about December 15, 2000, Mr. Otero wrote a letter to Mr. Finnell stating that he had not received any notice from the office. He advised that he did not know what, if anything, was filed by Mrs. Thompson on behalf of Appellant. 18. Apparently the Appellant’s address had changed to 339 E. Monte Way, Phoenix, Arizona 85040. Appellant failed to advise the Secretary of State that its address of record had changed. 19. On or about March 13, 2001, Ms. Thompson telephoned Mr. Finell to discuss bringing Appellant into compliance. 20. In response to Mrs. Thompson’s telephone call, Mr. Finell wrote a letter to her that same day confirming their conversation. Mr. Finell explained that the Appellant owed its 2000 post-primary, pre-general and post-general reports. He further advised Mrs. Thompson that due to the extreme lateness in filing those reports, Appellant owed the maximum penalty of $450.00 for each period for a total amount of $1,350.00. Mrs. Thompson was informed that a possibility existed for forgiveness of late fees should the Appellant make a “good cause” request to the Secretary of State. 21. Appellant did file a “good cause” request for waiver of the imposed penalties. 22. Appellant attempted to file its tardy reports but they were not recorded by the Secretary of Sate because Appellant had not submitted payment for the acquired late penalties. 23. The Office of the Attorney General is the statutory authority for the review and determination of “good cause” claims for campaign finance reports. 24. The Office of the Attorney General reviewed Appellant’s request and subsequently issued a Determination of Partial Good Cause and reduced the outstanding penalties to the amount of $450.00. 25. The Appellant, through its Treasurer, filed an appeal of the Office of the Attorney General’s decision imposing the $450.00 penalty. Mr. Otero is no longer Appellant’s chairman. Mrs. Thompson argued her ignorance of the campaign finance laws as the reason the required reports were not timely filed and she requested a waiver of the $450.00 penalty. 26. Appellant is found to have failed to timely file the above-described reports. 27. The evidence of record supports the imposition of the $450.00 penalty imposed by the Office of the Attorney General.

CONCLUSIONS OF LAW

1. Pursuant to the provisions of A.R.S. § 16-924, the Office of the Attorney General is the duly constituted authority to consider the assessment of a civil penalty for violations of A.R.S. § 16-901 et seq. 2. A.R.S. § 16-918(B) authorizes and mandates the imposition of a late penalty of $10.00 per day for each day that the required that a required campaign finance report remains unfiled, subject to a maximum amount of $450.00 per report. 3. Appellant violated the provisions of A.R.S. § 16-913 by failing to timely file its 2000 post-primary, pre-general and post-general campaign finance reports with the Arizona Secretary of State. 4. Pursuant to the provisions of A.R.S. § 16-924, Appellant is subject to the imposition of penalties for each of the above-described reports for failing to timely file those reports as required by A.R.S. § 16-913. 5. The Arizona Attorney General’s reduction of the imposed total penalty from $1,350.00 to $450.00 is found to be appropriate based upon the Attorney General’s finding that good cause exists for reducing the total penalty. However, insufficient evidence exists for either further reducing or eliminating the $450.00 penalty. 6. Appellant’s appeal in this matter should be dismissed.

RECOMMENDED ORDER

In view of the foregoing, it is recommended that Appellant’s appeal in this matter be dismissed, and that the Attorney General’s imposition of a penalty in the amount of $450.00 upon Appellant for failing to timely summit its above-described campaign finance reports be upheld and affirmed.

Done this day, September 27, 2001

______________________________________ Brian Brendan Tully Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 2001, to:

Office of the Attorney General Janet Napolitano, Attorney General ATTN: Jan McLemore 1275 West Washington Phoenix, AZ 85007

By ___________________________

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Office of Administrative Hearings 1400 West Washington, Suite 101 Phoenix, Arizona 85007 (602) 542-9826