Article 26 — CAMPAIGN FINANCE AND ETHICS COMMISSION

Editor's note— Ord. No. 16-004, § 2, adopted June 7, 2016, set out provisions intended for use as §§ 1-2- 100—1-2-116. To preserve the style of this Code, and at the editor's discretion, these provisions have been included as §§ 1-2-350—1-2-366.

There shall be established a Campaign Finance and Ethics Commission (the "Commission") that shall have the powers, duties and responsibilities set forth in this article.

The purpose of the Campaign Finance and Ethics Commission is to provide oversight of the County's Campaign Reform Ordinance, Lobbyist Registration and Reporting Ordinance, the Gift Ban Ordinance and Sections 6 and 9 of the County Code of Ethics and Commitment to Public Service ("Code of Ethics"). Ancillary to these purposes, the Commission will ensure that ethics training is provided to newly elected and appointed County officials in those areas for which the Commission has training responsibility.

(Ord. No. 16-004, § 2, 6-7-16)

The Commission's jurisdiction covers elective County officers and County candidates as defined in the Orange County Campaign Reform Ordinance, County officers as defined in the Orange County Gift Ban Ordinance, every member of a board, commission or committee under the jurisdiction of the Board of Supervisors, and County lobbyists and County lobbying firms as defined in the County of Orange Lobbyist Registration and Reporting Ordinance.

(Ord. No. 16-004, § 2, 6-7-16; Ord. No. 16-008, § 1, 7-12-16)

(a)

The Commission shall consist of five (5) appointed members.

(b)

Appointments to the Commission shall be made by each Board District and confirmed by a majority vote of the Board of Supervisors.

(Ord. No. 16-004, § 2, 6-7-16)

(a)

Commissioners shall serve three-year terms which shall be staggered. Accordingly, the initial Commissioners shall be appointed to terms of one (1), two (2) and three (3) years respectively. Two (2) of the initial Commissioners shall be selected by random lot to serve a three-year term; two (2) Commissioners shall be selected by random lot to serve a two-year term; and one (1) initial Commissioner shall be selected to serve a one-year term. Thereafter, all Commissioners shall serve a term of three (3) years, except that members selected to fill a vacancy caused by other than the regular expiration of a term shall serve only for the remainder of that term.

(b)

Commissioners may not serve more than two (2) full terms. A full term shall be defined as a remaining term of five hundred forty-eight (548) days or more. No member who has served two (2) terms shall be eligible for reappointment.

(c)

Chairperson and Vice-Chairperson of the Commission shall be selected by majority vote of the members of the Commission. The Chairperson and Vice-Chairperson shall each be elected for a one-year term and may be re-elected for not more than a second one-year term.

(Ord. No. 16-004, § 2, 6-7-16)

(a)

Each Commissioner shall be a registered voter of the County.

(b)

During his or her tenure, a member of the Commission and the Executive Director may not hold an elected or appointed public office, including, without limitation, any elective office in any jurisdiction and shall not be an employee of any holder of an elected or appointed public office, any member of a public body whose members are appointed by an elected official, or any employee of such public body.

(c)

If a Commissioner, during their term of office, desires to participate in the campaign of, or publicly support or oppose, a County candidate or elective County officer, such Commissioner shall first resign from the Commission. Failure to resign before such participation or support shall be grounds for removal from the Commission.

(d)

No Commissioner shall during their term as Commissioner or during the previous ten (10) years prior to their commencement of their term employ or be employed by a person who is acting as a County lobbyist, as that term is defined in the County Lobbyist Registration and Reporting Ordinance or have been a registered State Lobbyist or Federal Lobbyist.

(e)

No Commissioner shall have been, during the previous ten (10) years, an elective County officer, a County Agency/Department Head, or a County Executive Manager.

(f)

No Commissioners shall have been, during the previous ten (10) years, an elected or appointed official of a national, state or local partisan political (central) committee.

(g)

A person who has been convicted of a felony or misdemeanor involving dishonesty, untruthfulness, or any crime involving an election law violation is disqualified from serving as a Commissioner.

(h)

No person may serve as a Commissioner whose profession, occupation, or employment consist of (1) providing services to candidates for public office or to elected officials within the County of Orange; (2) engaging in public affairs or legislative liaison services for an employer doing business with the County of Orange, or with any Joint Powers Authority or with any Special District operating within the County of Orange; and (3) employment within the past ten (10) years with the County of Orange, or with any Joint Powers Authority or with any Special District operating within Orange County, or with any employee representative organization whose members are employees of the County of Orange.

(i)

No Commissioner who has served on the Orange County Grand Jury may serve on the Commission for ten (10) years from the date of this article's enactment.

(j)

No person who proposed, sponsored or co-sponsored the measure establishing the Commission may serve on the Commission for ten (10) years from the date of this article's enactment.

(Ord. No. 16-004, § 2, 6-7-16)

Commissioners may be removed for substantial neglect of duty, misconduct in office, inability to discharge the powers and duties of the office or violation of the provisions of this article. A Commissioner who is the subject of a removal proceeding will be given an opportunity to address the Commission at a public hearing after written notice of the grounds on which the removal is sought and an opportunity for the Commissioner to present his or her case against removal to the Commission. If the Commission votes in favor of removal,

the Commission will recommend to the Board of Supervisors that the subject Commissioner be removed. Upon recommendation of the Commission, the Board of Supervisors may remove a Commissioner by a majority vote.

Notwithstanding the foregoing provision, if the Commission fails to hold a removal hearing as described in this section, the Board of Supervisors may, by a four-fifths (⅘) vote, remove a Commissioner at any time, with or without cause.

(Ord. No. 16-004, § 2, 6-7-16)

Appointments to fill vacancies shall be for the unexpired term of the member whom the appointee succeeds.

(Ord. No. 16-004, § 2, 6-7-16)

Three (3) members present shall constitute a quorum, and the affirmative vote of not less than three (3) members shall be required to take any action.

(Ord. No. 16-004, § 2, 6-7-16)

The members of the Commission shall serve without compensation and shall be reimbursed for travel and other expenses incurred in the performance of their official duties in accordance with Board of Supervisors policy, as amended from time to time.

(Ord. No. 16-004, § 2, 6-7-16)

(a)

The Board of Supervisors shall appoint an Executive Director. The salary of the Executive Director shall be set by the Board of Supervisors and shall be based on a recommendation submitted by the County Executive Officer after a review and analysis of the responsibilities and authority vested in his or her employment.

(b)

The Executive Director shall enforce the County Campaign Reform Ordinance, Lobbyist Registration and Reporting Ordinance, the Gift Ban Ordinance and Sections 6 and 9 of the Code of Ethics and may investigate alleged violations of the County Campaign Reform Ordinance, Lobbyist Registration and Reform Ordinance, the Gift Ban Ordinance and Sections 6 and 9 of the Code of Ethics.

(c)

The Executive Director may receive written complaints alleging possible violations of County Campaign Reform Ordinance, the Lobbyist Registration and Reporting Ordinance, the Gift Ban Ordinance and Sections 6 and 9 of the Code of Ethics.

(d)

The Executive Director shall obtain copies of candidates' campaign statements and any other reports required by the Political Reform Act and the County's Campaign Reform Ordinance pertaining to County Candidates and County Elective Officers and to persons making independent expenditures supporting or opposing County Candidates and County Elective Officers from the Registrar of Voters.

(e)

The Executive Director may prescribe forms for reports, statements, notices and other documents required by the County Campaign Reform Ordinance and the Lobbyist Registration and Reporting Ordinance.

(f)

The Executive Director shall receive documents required to be filed pursuant to, and to otherwise administer, the provisions of the Lobbyist Registration and Reporting Ordinance.

(g)

The Executive Director shall maintain an independent tracking system of each contributor's total cumulative and aggregated contributions in an Election Cycle (as that term is defined in County Campaign Reform Ordinance) to County Candidates and County Elective Officers.

(h)

The Executive Director shall review all reports submitted pursuant to the County Campaign Reform Ordinance and the Lobbyist Registration and Reporting Ordinance, and reports from persons making independent expenditures supporting or opposing County Candidates and County Elective Officers for completeness, accuracy, and any potential violations of the County Campaign Reform Ordinance and the Lobbyist Registration and Reporting Ordinance.

(i)

The Executive Director shall have authority, if delegated by the Board of Supervisors by resolution, to issue subpoenas duces tecum for bank records of campaign accounts of County elective officers and County candidates.

(j)

The Executive Director shall be responsible for reviewing County Conflict of Interest Code Amendments proposed by County departments and agencies before such amendments are presented to the Board of Supervisors for review and approval.

(k)

The Executive Director shall prepare a quarterly report that will provide a general overview of activity. The Executive Director shall submit this report to the Commission for review before submission to the Board of Supervisors.

(l)

The Executive Director is responsible for providing county-wide bi-annual AB 1234 ethics training.

(m)

The Executive Director shall develop an annual training program for newly elected and appointed County elective officers and their staff members to familiarize such individuals with the County Campaign Reform Ordinance, the Gift Ban Ordinance and Section 6 and 9 of the Code of Ethics. Such training seminars shall be mandatory for each newly elected County Elective Officer and each newly appointed staff member of a County Elective Officer.

(n)

The Executive Director shall develop a manual that summarizes, in simple, non-technical language, reporting requirements applicable to County elective officers and County candidates, instructions for completing required forms, questions and answers regarding common problems and situations, and information regarding sources of assistance in resolving questions. The manual shall be updated on an annual basis to reflect changes in applicable County laws governing campaign financing, including, without limitation, the County Campaign Reform Ordinance.

(o)

The Executive Director shall submit the annual training program and manual to the Commission for review before submission to the Board of Supervisors.

(p)

The Executive Director may cause an audit to be performed of County elective officers and County candidates' campaign accounts to ensure compliance with the County Campaign Reform Ordinance and Lobbyist Registration and Reporting Ordinance.

(q)

In accordance with section 1-2-363, the Executive Director shall provide advice to any person concerning the requesting party's duties under this article.

(r)

The Executive Director may hire staff as necessary to assist him or her in the performance of his or her duties. The Executive Director may utilize support services of the Clerk of the Board.

(Ord. No. 16-004, § 2, 6-7-16)

The Commission shall have responsibility for the impartial and effective administration and implementation of the provisions of the County Campaign Reform Ordinance, Lobbyist Registration and Reporting Ordinance, the Gift Ban Ordinance and Sections 6 and 9 of the Code of Ethics. The Commission shall be a "legislative body" within the meaning of Government Code Section 54952, subdivision (b). All meetings of the Commission shall be open and public in accordance with Government Code section 54953. Specifically, the Commission shall have the following duties, powers, and responsibilities:

(a)

Notwithstanding anything herein to the contrary, the Commission shall only have jurisdiction over alleged violations by a person of the County Campaign Reform Ordinance, the Lobbyist Registration and Reporting Ordinance, the Gift Ban Ordinance and Sections 6 and 9 of the Code of Ethics.

(b)

The Commission shall serve as the appellate body for Statement of Decisions as described in section 1-2- 362 of this article.

(c)

The Commission shall review the Executive Director's quarterly reports of activity before submission to the Board of Supervisors.

(d)

The Commission shall review the Executive Director's annual training program and manual before submission to the Board of Supervisors.

(e)

The Chair of the Commission shall prepare an annual report summarizing Commission activities. This report shall be reviewed and approved by a majority vote of the Commission and presented to Board of Supervisors as an agenda item at a regularly scheduled Board meeting.

(f)

A Commissioner shall not initiate, permit, or consider ex parte communications, that is, any communications to or from the Commissioner outside the presence of the parties concerning a pending or impending investigation, enforcement proceeding, or appeal, and shall make reasonable efforts to avoid such communications.

(Ord. No. 16-004, § 2, 6-7-16)

Any person who knowingly submits a false complaint under this article shall be guilty of a misdemeanor and may be subject to a one thousand dollar ($1,000.00) fine. In this subsection, "false complaint" means a complaint that is knowingly false and brought for the purpose of harassment, intimidation or embarrassment.

(Ord. No. 16-004, § 2, 6-7-16)

The Executive Director shall conduct investigations of alleged violations of the County Campaign Reform Ordinance, the Lobbyist Registration and Reporting Ordinance, the Gift Ban Ordinance and Sections 6 and 9 of the Code of Ethics. Any person who violates any provision of the aforementioned, or who causes any other person to violate any provision, or who aids and abets any other person in a violation, shall be subject to the provisions of this section.

(a)

Definitions.

(1)

Administrative hearing means an administrative hearing, closed to the public unless, otherwise requested by the party accused, for the purpose of ascertaining whether a violation of the County Campaign Reform Ordinance, the Lobbyist Registration and Reporting Ordinance, the Gift Ban Ordinance or Sections 6 and 9 of the Code of Ethics has been committed by the party accused.

(2)

Hearing officer means an individual who is part of the group of attorneys maintained by the Clerk of the Board, as authorized by the Board of Supervisors, to serve as hearing officers for administrative hearings.

(3)

Letter of resolution means a letter advising the party accused, and any person who, in writing informed or complained to the Executive Director concerning any such violation, that the alleged violation has been resolved and the manner by which it was resolved.

(4)

Notice of violation means a document prepared by the Executive Director that identifies the laws allegedly violated by the party accused, the acts or omissions with which the party accused is charged, and the penalties the Executive Director is seeking to impose for each violation listed.

(5)

Preponderance of the evidence means that evidence sufficient has been presented to conclude that it is more likely than not a violation of County Campaign Reform Ordinance, the Lobbyist Registration and Reporting Ordinance, the Gift Ban Ordinance and/or Sections 6 and 9 of the Code of Ethics has been committed and that the party accused committed or caused the violation.

(6)

Remedial measures may include but is not limited to the following:

a.

File any and all reports, statements or other documents or information required by law;

b.

Amend any and all reports, statements or other documents or information found deficient;

c.

Return any and all amounts found to be unauthorized;

d.

Pay any assessed fines.

(7)

Statement of decision means a writing that includes a summary of evidence presented at the administrative hearing and findings of fact and conclusions of Hearing Officer.

(b)

Investigations.

(1)

Any person may file a complaint with the Executive Director for alleged violations of County Campaign Reform Ordinance, the Lobbyist Registration and Reporting Ordinance, the Gift Ban Ordinance and Sections 6 and 9 of the Code of Ethics. The Executive Director shall investigate alleged violations if he or she determines that the complaint contains sufficient facts to conduct an investigation. The Executive Director shall not be required to investigate a complaint filed unless the complaint is in writing, identifies the specific alleged violation which forms the basis for the complaint and is signed by the complainant, under penalty of perjury. The Executive Director shall issue a Notice of Violation to the party accused if the investigation concludes that a violation of the County Campaign Reform Ordinance, the Lobbyist Registration and Reporting Ordinance, the Gift Ban Ordinance or Sections 6 and 9 of the Code of Ethics has been committed.

(2)

The investigation shall be conducted in a confidential manner. To the extent permitted by applicable law, including the California Public Records Act, Government Code Section 6250, et seq., records of any investigation shall be considered confidential information until all deliberations have concluded.

(c)

Remedial measures.

(1)

The Executive Director shall endeavor to resolve as many allegations as possible using Remedial Measures. If Executive Director issues a Notice of Violation, the Executive Director may, at his or her sole discretion,

advise the person of Remedial Measures which may be taken to avoid further action. When feasible, the Executive Director shall offer Remedial Measures to any accused party before initiating any administrative enforcement.

(2)

If a person is offered and, within fifteen (15) calendar days, timely performs the Remedial Measure to the satisfaction of the Executive Director, the Executive Director shall issue a Letter of Resolution. A person may also refuse to perform any Remedial Measures offered and request a hearing on the conclusions of the investigation pursuant to section 1-2-362(d).

(3)

Excess contributions which the Executive Director determines have been accepted by mistake or accident shall be refunded to the contributor in accordance with Section 1-6-28 of the County Campaign Reform Ordinance. The number of returned contributions throughout the year shall be included in the quarterly report referenced in section 1-2-359(k). In the case of such returned contributions, the Executive Director shall not be required to issue a Letter of Resolution, so long as such return is included in the quarterly report referenced in section 1-2-359(k).

(4)

If a Letter of Resolution is issued, no further proceedings, civil action or referrals shall be pursued relating to such alleged violation, and no further action by the Executive Director is required. The Executive Director shall provide a copy of each Letter of Resolution to each member of the Commission.

(5)

Any offer of Remedial Measures shall remain confidential. To the extent permitted by applicable law, including the California Public Records Act, Government Code Section 6250, et seq., records concerning Remedial Measures, if any, shall be considered confidential information until all deliberations have concluded.

(d)

Administrative hearing.

(1)

A party accused of any violation of the County Campaign Reform Ordinance, the Lobbyist Registration and Reporting Ordinance, the Gift Ban Ordinance or Sections 6 and 9 of the Code of Ethics may request an administrative hearing. Unless otherwise stipulated, the Executive Director and the party accused shall have an administrative hearing before a Hearing Officer selected by the Clerk of the Board within twenty- one (21) calendar days of such request.

(2)

The party accused shall be given a notice of the alleged violation and the date, time and location of the administrative hearing by certified mail with return receipt requested. The notice shall inform the party

accused that they have a right to attend the hearing, and may be represented by legal counsel or any other representative of their choosing.

(3)

Administrative hearings shall be conducted by a Hearing Officer who will determine whether the Executive Director has proved, by preponderance of the evidence, that the alleged violation(s) occurred and that the party accused committed or caused the violation(s). The Hearing Officer may issue subpoenas to compel the attendance of persons and things at the administrative hearing. Each party shall have the right to call and examine witnesses, to introduce exhibits, to cross-examine opposing witnesses, impeach any witness, and present any relevant evidence to rebut the evidence presented against him or her. The hearing need not be conducted according to technical rules relating to evidence and witnesses. Any relevant evidence shall be admitted if it is the sort of evidence on which responsible persons are accustomed to rely in the conduct of serious affairs, regardless of the existence of any common law or statutory rule which might make improper the admission of such evidence over objection in civil actions. However, hearsay evidence may only be used for the purpose of supplementing or explaining other evidence and shall not be sufficient in itself to support a finding unless it would be admissible over objection in a civil or criminal action.

(4)

The Hearing Officer shall determine, on all the evidence presented to him or her, whether by preponderance of the evidence, an alleged violation(s) occurred and that the party accused committed or caused the violation(s) within fifteen (15) days following the conclusion of the hearing. The Hearing Officer shall notify all parties of his or her decision in writing through a Statement of Decision. In the event that the Hearing Officer determines that no violation has occurred, no further proceedings, civil action or referrals shall thereafter be filed or maintained relating to such alleged violation, and no further action by the Commission is required.

(5)

The administrative hearing shall be conducted in a confidential manner unless otherwise requested by the party accused. To the extent permitted by applicable law, including the California Public Records Act, Government Code Section 6250, et seq., records concerning the administrative hearing, shall be considered confidential information until all deliberations have concluded.

(e)

Administrative appeal—Commission.

(1)

The party accused may appeal the Hearing Officer Statement of Decision to the Commission. The Commission shall hold a de novo hearing within twenty-one (21) days of receiving a written demand to appeal the Statement of Decision to determine whether, by preponderance of the evidence, the party accused committed an alleged violation or violations. The notice of the administrative appeal shall contain the Statement of Decision as supporting evidence for the violation. The notice shall contain the date, time and location of the appeal. The notice shall also inform the party accused that they have a right to attend

the administrative appeal, and may be represented by legal counsel or any other representative of their choosing.

(2)

Each party shall have the right to call and examine witnesses, to introduce exhibits, to cross-examine opposing witnesses, impeach any witness, and present any relevant evidence to rebut the evidence against him or her. The Chair of the Commission may issue subpoenas to compel the attendance of persons and things at the administrative appeal. The administrative appeal need not be conducted according to technical rules relating to evidence and witnesses. Any relevant evidence shall be admitted if it is the sort of evidence on which responsible persons are accustomed to rely in the conduct of serious affairs, regardless of the existence of any common law or statutory rule which might make improper the admission of such evidence over objection in civil actions. However, hearsay evidence may only be used for the purpose of supplementing or explaining other evidence and shall not be sufficient in itself to support a finding unless it would be admissible over objection in a civil or criminal action.

(3)

The Commission shall determine, within twenty (20) days of the conclusion of the administrative appeal whether, based on the preponderance of the evidence, that an alleged violation(s) occurred and that the party accused committed or caused the violation(s). The Commission shall notify all parties of its decision in writing including a summary of evidence presented at the administrative appeal and findings of fact and conclusions of the Commission. The Commission's determination shall be deemed final.

(4)

If the Commission concludes that a violation of the County Campaign Reform Ordinance, the Lobbyist Registration and Reporting Ordinance, the Gift Ban Ordinance and/or Sections 6 and 9 of the Code of Ethics has occurred and the party accused committed or caused the violations, it shall, in its writing, issue an administrative order. Such administrative order may require the offending party to perform the following actions:

a.

Comply with the penalties found in the Notice of Violation;

b.

Cease and desist the violation;

c.

File any reports, statements or other documents or information required by law;

d.

Perform Remedial Measures;

e.

Pay a monetary penalty to the General Fund of the County of up to five thousand dollars ($5,000.00) for each violation or three (3) times the amount which the violator failed to report properly or unlawfully contributed, expended, gave or received, whichever is greater.

The enforcement provisions found in section 1-1-84 of the Lobbying Registration and Reporting Ordinance for failure to file a County lobbying firm report are not superseded by this section.

(5)

If two (2) or more persons are responsible for any violation of any provision of this article, then they shall be jointly and severally liable.

(6)

No administrative action brought alleging a violation of any provision of this article shall be commenced more than four (4) years after the date on which the violation occurred.

(f)

Petition to the Court. Judicial review may be had by filing a petition for a writ of mandate in accordance with the provisions of the Code of Civil Procedure. The ninety (90) day statute of limitations contained in California Code of Civil Procedure Section 1094.6 shall apply to judicial review of enforcement decisions made by the Commission.

(g)

Civil action to collect debt and obtain other relief. The County may file and prosecute a civil action in Superior Court to recover any amount(s) due and owed by any person pursuant to this section, or to enjoin any violation or otherwise compel compliance with the requirements found herein. In the event of any civil action is within the jurisdictional amount of small claims court, the County may designate the Executive Director to bring such action on its behalf.

(h)

Cost of litigation. In the event that either the County brings a civil action against a person who is the subject of a Commission final determination, or such person brings a petition described in Section 1-2-362(f) above, the court may award to the prevailing party in any such action authorized by this article, the costs of litigation, which costs shall include reasonable attorney's fees.

(i)

Referrals to other agencies. The Executive Director may refer matters to other agencies for purposes of enforcing section 1-2-362(g) of this article or Section 1-6-15 of the County Campaign Reform Ordinance and Section 1-1-84(c) of the Lobbyist Registration and Reporting Ordinance.

(Ord. No. 16-004, § 2, 6-7-16)

Any person may request the Executive Director to provide advice with respect to the requesting party's duties under this article. The Executive Director shall, within fourteen (14) days, either issue the advice or inform the requesting party whether advice will be issued. No person who acts in good faith in accordance with advice issued to him or her by the Executive Director shall be subject to civil penalties under this article for so acting, provided that the material facts are as stated in the advice request. The Executive Director's advice shall be public record and may from time to time be published.

(Ord. No. 16-004, § 2, 6-7-16)

The County Counsel shall provide legal services to the Commission.

(Ord. No. 16-004, § 2, 6-7-16)

This article is adopted pursuant to California Government Code Sections 25303 and 31000.1.

(Ord. No. 16-004, § 2, 6-7-16)

(a)

No substantive repeal of any provision of this article shall be effective unless a proposition shall first have been submitted to the electors of the County and approved by a majority vote.

(b)

Nothing in this article prevents the Orange County Board of Supervisors by majority vote from amending this article to make technical non-substantive changes or by a four-fifths (⅘) vote from making substantive amendments to further the purposes of this article.

(Ord. No. 16-004, § 2, 6-7-16)