Berkeley Municipal Code Art. 8 Berkeley Fair Elections Act of 2016

This Article shall be known as the Berkeley Fair Elections Act of 2016. Its purposes are to:

A. Diminish the public perception of corruption and strengthen public confidence in the governmental and election processes.

B. Eliminate the danger of actual corruption of Berkeley officials caused by the private financing of campaigns.

C. Help reduce the influence of private campaign contributions on Berkeley government.

D. Reduce the impact of wealth as a determinant of whether a person becomes a candidate.

E. Foster more meaningful participation in the political process.

F. Provide candidates who participate in the program with sufficient resources with which to communicate with voters.

G. Increase the accountability of elected officials to the constituents who elect them, as opposed to the contributors who fund their campaigns.

H. Free candidates from the time needed to raise campaign money, and allow officeholders more time to carry out their official duties. (Ord. 7524-NS § 3.6 (part), 2016)

Candidates for the offices of Mayor, City Council, Auditor, Board of Education, and Rent Stabilization Board shall be eligible to participate in the public campaign financing program established by this chapter. (Ord. 7793-NS § 2, 2021; Ord. 7524-NS § 3.6 (part), 2016)

A. To be eligible to be certified as a participating candidate, a candidate must:

1. During the qualifying period for the election involved, choose to participate in the Fair Elections program by filing with the City a written application for certification as a participating candidate in such form as may be prescribed by the Commission, containing the identity of the candidate, the office that the candidate seeks, and the candidate’s signature, under penalty of perjury, certifying that:

a)The candidate has complied with the restrictions of this chapter during the election cycle to date;

b)The candidate’s campaign committee has filed all campaign finance reports required by law during the election cycle to date and that they are complete and accurate; and

c)The candidate will comply with the requirements of this Act during the remainder of the election cycle and, specifically, if certified an eligible participating candidate, will comply with the requirements applicable to participating candidates.

2)Meet all requirements to be eligible to hold the office sought:

a)For the office of Mayor, Councilmember, Auditor, or School Director, the requirements as set forth in Sections 9 and 10 of Article V of the Charter of the City of Berkeley; or

b)For the office of Commissioner of the Rent Stabilization Board, the requirements as set forth in Section 121 of Article XVII of the Charter of the City of Berkeley.

3)Before the close of the qualifying period, collect and submit at least 30 qualified contributions, from at least 30 unique contributors, of at least ten dollars ($10)*, for a total dollar amount of at least five-hundred dollars ($500)*.

a)Each qualified contribution shall be acknowledged by a receipt to the contributor, with a copy retained by the candidate. The receipt shall include the contributor’s signature, printed name, home address, and telephone number, if any, and the name of the candidate on whose behalf the contribution is made. In addition, the receipt shall indicate by the contributor’s signature that the contributor understands that the purpose of the qualified contribution is to help the candidate qualify for Fair Elections campaign funding and that the contribution is made without coercion or reimbursement.

b)A contribution for which a candidate has not obtained a signed and fully completed receipt shall not be counted as a qualified contribution.

4)Maintain such records of receipts and expenditures as required by the Commission;

5)Obtain and furnish to the Commission or City staff any information they may request relating to his or her campaign expenditures or contributions and furnish such documentation and other proof of compliance with this chapter as may be requested by such Commission or City staff;

6)Not make expenditures from or use his or her personal funds or funds jointly held with his or her spouse, domestic partner, or unemancipated children in connection with his or her election except as a monetary or non-monetary contribution to his or her controlled committee of $250* or less. Contributions from a participating candidate to his or her own controlled committee are not eligible for matching funds.

7)Not accept contributions in connection with the election for which Fair Elections funds are sought other than qualified contributions, contributions not greater than fifty dollars ($50)* made by a natural person non-resident of Berkeley, or non-monetary contributions with a fair market value not greater than fifty dollars ($50)*. The aggregate value of all contributions from any individual must not be greater than fifty dollars ($50)*;

8)Not solicit or direct contributions in connection with any election during the election cycle in which Fair Elections funds are sought other than qualified contributions, contributions not greater than fifty dollars ($50)* made by a natural person non-resident of Berkeley, or non-monetary contributions with fair market value not greater than fifty dollars ($50)* to such candidate’s-controlled committee.

9)Not accept loans from any source.

10)The City has the authority to approve a candidate’s application for public financing, despite a violation by the candidate related to participation and qualification in the public financing program, if the violation is minor in scope and the candidate demonstrates a timely, good-faith effort to remedy the violation. The Commission shall adopt regulations setting forth guidelines for what constitutes a minor violation under this provision.

*The dollar amounts in this code section are adjusted for inflation every two years. The current dollar amounts are posted online.

B. At the earliest practicable time after a candidate files with the City a written application for certification as a participating candidate, the City shall certify that the candidate is or is not eligible. Eligibility can be revoked if the Commission determines that a candidate has committed a substantial violation of the requirements of this Act, in which case all Fair Elections funds shall be repaid.

C. At the discretion of the Commission or at the applying candidate’s request, the City’s denial of eligibility is subject to review by the Commission. The Commission’s determination is final except that it is subject to a prompt judicial review pursuant to Section 2.12.235.

D. If the City or Commission determines that a candidate is not eligible, the candidate is not required to comply with provisions of this Act applicable only to participating candidates. (Ord. 7793-NS § 3, 2021; Ord. 7723-NS § 1, 2020; Ord. 7691-NS § 2, 2020; Ord. 7674-NS § 1, 2019; Ord. 7564-NS § 7, 2017; Ord. 7524-NS § 3.6 (part), 2016)

A. A candidate who is certified as an eligible participating candidate shall receive payment of Fair Elections funds equal to six-hundred percent (600 percent) of the amount of qualified contributions received by the candidate during the election cycle with respect to a single election subject to the aggregate limit on the total amount of Fair Elections funds payments to a candidate specified in Section 2.12.505.B.

B. The aggregate amount of Fair Elections funds payments that may be made to a participating candidate during an election cycle may not exceed:

1)$129,000* for a candidate running for the office of Mayor;

2)$43,000* for a candidate running for the office of City Council;

3)$20,000* for a candidate running for the office of Auditor;

4)$20,000* for a candidate running for the office of Board of Education;

5)$8,000* for a candidate running for the office of Rent Stabilization Board.

*The dollar amounts in this code section are adjusted for inflation every two years. The current dollar amounts are posted online.

C. A participating candidate’s application for Fair Elections funds, including an initial request submitted with an application for certification as a participating candidate, shall be made using a form prescribed by the Commission and shall be accompanied by qualified contribution receipts and any other information the Commission deems necessary. This application shall be accompanied by a signed statement from the candidate indicating that all information on the qualified contribution receipts is complete and accurate to the best of the candidate’s knowledge.

1)All Qualified Contributions, of any dollar amount, eligible for matching Fair Elections funds must be publicly disclosed with the contributor information required under Sections 2.12.280 and 2.12.283.

2)All campaign filings must be current in order for a Participating Candidate to receive a disbursement of Fair Elections funds and the Participating Candidate and a Participating Candidate’s controlled committee must not have any outstanding fines related to campaign filings or violations of municipal, state or federal election law. All applications for Fair Elections funds shall include a certification by the Participating Candidate that the Participating Candidate or his or her controlled committee does not have any outstanding fines or penalties related to campaign filings. Upon submission of outstanding campaign filings and payment of any outstanding fines, withheld Fair Elections funds will be disbursed at the next regularly scheduled distribution for that election cycle.

D. The City shall verify that a candidate’s qualified contributions meet all of the requirements and restrictions of this Act prior to the disbursement of Fair Elections funds to the candidate. A participating candidate who receives a qualified contribution that is not from the person listed on the qualified contribution receipt shall be liable to pay the Fair Elections Fund the entire amount of the inaccurately identified contribution, in addition to any penalties.

E. The City shall make an initial payment of Fair Elections funds within seven business days of the City’s certification of a participating candidate’s eligibility, or as soon thereafter as is practicable. City staff shall report a certification or denial to the Commission no later than the Commission’s next regular meeting, consistent with the Brown Act.

F. The Commission shall establish a schedule for the submission of Fair Elections funds payment requests, permitting a candidate to submit a Fair Elections funds payment request at least once per month. However, the Commission shall schedule a minimum of three payment request submission dates within the thirty days prior to an election.

G. The City shall provide each participating candidate with a written determination specifying the basis for any non-payment of Fair Elections funds. The Commission shall provide participating candidates with a process by which they may immediately upon receipt of such determination petition the Commission for reconsideration of any such non-payment and such reconsideration shall occur within seven business days of the filing of such petition. In the event that the Commission denies such petition then it shall immediately notify the candidate of his or her right to seek judicial review of the Commission’s denial pursuant to Section 2.12.235.

H.

1. Unspent campaign funds of any Participating Candidate who does not qualify as a candidate for the ballot at the election for which the funds were distributed, up to the total amount of funds that the participating candidate received as Fair Election Funds distributions in that election cycle and after accounting for campaign debts and expenditures, must be returned to the City no later than the date of the election for which the funds were distributed. All funds returned under this paragraph must be accompanied by any required supporting documentation. In such cases, the participating candidate must return the unspent funds to the City, up to the total amount of funds that the participating candidate received as Fair Election Funds distributions, prior to refunding any contributions to individual contributors.

2. Any campaign funds that remain unspent by a Participating Candidate following the date of the election for which they were distributed, up to the total amount of funds that the Participating Candidate received as Fair Elections Funds distributions in that elections cycle and after accounting for campaign debts and expenditures, must be returned to the City, no later than the close of the semi-annual reporting period immediately following the date of the election. All funds returned under this paragraph must be accompanied by any required supporting documentation.

3. All unspent campaign funds returned to the City shall be deposited in the Fair Elections Fund pursuant to the City Charter.

4. Following the deadline for filing the semi-annual campaign statement occurring immediately after the election, the City Clerk shall refer to the Commission for enforcement any participating candidate who has not returned unspent funds as required by this subsection.

5. After the deadline to return unspent funds in 2.12.505.H.2, a participating candidate may continue to raise funds in accordance with Article 8 of Chapter 2.12 to pay campaign-related debt from the most recent election. Any such contributions received shall not be eligible for matching funds.

I. Any request by a Participating Candidate for a refund of any amount of unspent campaign funds previously repaid to the City, for a qualified campaign expenditure or other permissible campaign purpose, shall be submitted to the Commission to approve, in whole or in part, or deny. The Commission shall make a final determination on the refund within 45 days of receipt.

J. Requests for matching funds may be submitted no later than 30 days after Election Day for the election at which the participating candidate qualified as a candidate.

K. Upon approval of a participating candidate’s Initial Qualifying Request, the candidate is prohibited from withdrawing from the Public Financing Program and receiving contributions pursuant to Section 2.12.415 for the same office at the same election for which they are a participating candidate. (Ord. 8004-NS § 2, 2026; Ord. 7875-NS §§ 6--8, 2023; Ord. 7793-NS § 4, 2021; Ord. 7723-NS § 2, 2020; Ord. 7691-NS § 3, 2020; Ord. 7674-NS § 2, 2019; Ord. 7564-NS § 8, 2017; Ord. 7524-NS § 3.6 (part), 2016)

A. Notwithstanding the requirements in Section 2.12.505.H.1, if a participating candidate returns a qualified contribution for which they have requested and received matching funds, they must immediately return all said matching funds to the City.

B. Notwithstanding the requirements in Section 2.12.505.H.1, a participating candidate may return a non-qualified contribution to the contributor at any time without triggering any requirement that they return matching funds. (Ord. 7875-NS § 9, 2023)

A candidate certified as a Fair Elections program participant shall be identified as such by a notice prominently posted on the City website. (Ord. 7875-NS § 10, 2023; Ord. 7524-NS § 3.6 (part), 2016)

During the first election cycle that occurs after Council implementation of this Act, a candidate may be certified as a participating candidate, notwithstanding the acceptance of contributions other than qualified contributions before the date of enactment that would, absent this Section, disqualify the candidate as a participating candidate, provided that any funds other than qualified contributions accepted but not expended before the effective date of this Act shall be:

A. Returned to the contributor;

B. Held in a special campaign account and used only for retiring a debt from a previous campaign; or

C. Submitted to the City for deposit in the Fair Elections Fund. (Ord. 7524-NS § 3.6 (part), 2016)

The provisions of this chapter apply to special municipal elections as defined in City Charter Article III Section 4. The Commission shall adjust the deadlines in this Act to account for the circumstances of the special municipal election. (Ord. 7524-NS § 3.6 (part), 2016)

A. During an election cycle, each participating candidate shall conduct all campaign financial activities through a single campaign expenditure and contribution account as required by Section 2.12.250.

B. A participating candidate may maintain a campaign account other than the campaign account described in subsection A if the other campaign account is for the purpose of retiring a campaign debt that was incurred during a previous election campaign in which the candidate was not a participating candidate.

C. Contributions for the purposes of a retiring a previous campaign debt that are deposited in the kind of "other campaign account" described in subsection B shall not be considered "contributions" to the candidate’s current campaign.

D. Participating candidates shall file reports of financial activity related to the current election cycle separately from reports of financial activity related to previous election cycles. (Ord. 7524-NS § 3.6 (part), 2016)

A. A participating candidate shall use Fair Elections funds and contributions only for direct campaign purposes to further the candidate’s own campaign for the relevant office and election cycle.

B. A participating candidate shall not use Fair Elections funds or contributions for:

1)Costs of legal defense in any campaign law enforcement proceeding under this Act, or penalties arising from violations of any local, state, or federal campaign laws;

2)The candidate’s personal support or compensation to the candidate the candidate’s family, or a business in which the candidate or candidate’s immediate family member has a ten (10) percent or greater ownership interest;

3)Indirect campaign purposes, including but not limited to:

a)Any expense that provides a direct personal benefit to the candidate, including clothing and other items related to the candidate’s personal appearance;

b)Capital assets having a value in excess of five hundred dollars ($500)* and useful life extending beyond the end of the current election period determined in accordance with generally accepted accounting principles;

c)A contribution or loan to the campaign committee of another candidate or to a party committee or other political committee;

d)An independent expenditure as defined in Berkeley Municipal Code Section 2.12.142 as may be amended;

e)Any payment or transfer for which compensating value is not received.

*The dollar amounts in this code section are adjusted for inflation every two years. The current dollar amounts are posted online.

C. Notwithstanding any provision of this Chapter, a candidate may use campaign materials, including campaign signs, mailers, posters, door hangers and similar items, purchased by a committee for the same candidate during a previous election so long as the campaign materials were purchased with the intention of being used in the previous campaign, in the following circumstances:

a. A candidate may use campaign materials paid for with Fair Elections funds in a previous election provided that the candidate submits payment to the City in an amount equivalent to the fair market value of such items for deposit in the Fund.

b. A participating candidate may use campaign materials purchased by a committee for the same candidate in a previous election provided that the candidate submits payment to the City in an amount equivalent to the fair market value of such items for deposit in the Fund.

D. For the purposes of subsection C of this section, the fair market value shall be the purchase price of the campaign materials at the time they were initially purchased for the previous campaign minus any cost to affix updated disclaimer language to the campaign materials. All campaign materials must comply with Section 2.12.335 and any other applicable disclaimer requirements.

E. The term "Contribution" is defined in 2.12.100 and includes "Qualified Contributions" as defined in 2.12.167 and contributions from non-residents of Berkeley as described in 2.12.500.A.7.

F. The dollar amounts in Section 2.12.530.B.3.b may be adjusted for cost-of-living changes by the Commission through regulation, pursuant to Section 2.12.545. (Ord. 8004-NS § 3, 2026; Ord. 7793-NS § 5, 2021; Ord. 7691-NS § 4, 2020; Ord. 7674-NS § 3, 2019; Ord. 7564-NS § 9, 2017; Ord. 7524-NS § 3.6 (part), 2016)

Notwithstanding any provision in this chapter to the contrary, the Commission may alter any of the time periods or deadlines listed herein if it finds that they are impracticable, so long as the readjusted period or deadline meets the objectives of this chapter. (Ord. 7524-NS § 3.6 (part), 2016)

If the Commission determines that there are insufficient funds in the Fair Elections Fund to fund adequately all participating candidates, the Commission shall notify participating candidates that the Commission will not likely be capable of distributing to all participating candidates the maximum aggregate amount of Fair Elections funds payments permissible under Section 2.12.505.B. Under such circumstances, at such time as the Commission is unable to fulfill a valid application for Fair Elections funds submitted by a participating candidate pursuant to Section 2.12.505.C, the participating candidate may solicit for such candidate’s controlled committee and accept any contributions permissible under City law and shall no longer be subject to the restriction on use of personal funds established by Section 2.12.500.A.6. (Ord. 7524-NS § 3.6 (part), 2016)

A. The Commission shall adjust the dollar amounts specified in Sections 2.12.167, 2.12.271, 2.12.335, 2.12.500.A.3, 2.12.500.A.6, 2.12.500.A.7, 2.12.500.A.8, 2.12.505.B and 2.12.530.B.3.b for cost of living changes pursuant to Section 2.12.075 in January of every odd-numbered year following Council implementation. All such adjustments shall be rounded to the nearest ten dollars ($10), except for adjustments to the amount specified in Section 2.12.505.B, which shall be rounded to the nearest one thousand dollars ($1,000).

B. As soon as practicable after adoption of the amendments providing for the adjustment of Sections 2.12.271 and 2.12.335, but no later than December 31, 2024, the Commission shall perform an initial adjustment of the dollar amounts in those sections. (Ord. 8004-NS § 4, 2026; Ord. 7889-NS § 1, 2023; Ord. 7875-NS § 11, 2023; Ord. 7857-NS § 2, 2023; Ord. 7691-NS § 5, 2020; Ord. 7564-NS § 10, 2017; Ord. 7524-NS § 3.6 (part), 2016)

In addition to other enforcement and penalty provisions of this Article:

A. It is a violation of the law for candidates to accept more Fair Elections Act benefits than those to which they are entitled or misuse such benefits or Fair Elections funding.

B. If a participating candidate knowingly or willfully accepts or spends Fair Elections funding in violation of this Act, then the candidate shall repay to the Fair Elections Fund an amount equal to twice the value of Fair Elections funding unlawfully accepted or spent.

C. The Commission shall, after a hearing held pursuant to Section 2.12.230, have the authority to impose the fine created by this section upon a two-thirds vote. (Ord. 7524-NS § 3.6 (part), 2016)

No person who commits a substantial violation of this chapter shall be eligible to receive public funds for a period of four years from and after the date that the Commission determines, upon a two-thirds vote, that such a violation has occurred, following a hearing held pursuant to Section 2.12.230. The Commission shall by regulation state the criteria to be satisfied in order to make a finding of a substantial violation. (Ord. 7524-NS § 3.6 (part), 2016)

After each of the first two election cycles that occur after Council implementation of this Act, the Commission shall review the Fair Elections program and make recommendations to Council for policy changes to improve and refine the program. (Ord. 7524-NS § 3.6 (part), 2016)