Current through Register 2024 Notice Reg. No. 12, March 22, 2024
The Chief of Enforcement may include or exclude any filer
from receiving a Tier Two streamline penalty based upon mitigating or
aggravating circumstances and the totality of the circumstances, including
situations where an exclusion may apply. Violations excluded from Tier One
Streamline Program can be considered for Tier Two Streamline penalties if
aggravating circumstances do not result in the exclusion from the program based
on the criteria below. Excluded violations will be processed as Mainline
Stipulations. A Mainline Stipulation generally results in a higher penalty and
includes a full description of the violation and surrounding events.
(a) Types of Violations Eligible.
(1) Late Statements and Reports, including
Campaign, Statements of Economic Interests, and Lobbying.
(2) Unreported Economic Interest(s) on a
Statement of Economic Interests.
(3) Unreported Lobbying Activity,
Contributions or Expenditures.
(4)
Cash Contribution(s) or Expenditure(s) of $100 or More.
(5) Campaign Bank Account.
(6) Committee Naming.
(7) Advertising and Mass Mailing
Disclosures.
(8)
Recordkeeping.
(9) Gift
Limit.
(10) Major Donor
Filers.
(11) Behested Payment
Reports.
(b) Penalty
Amount. The streamline penalty for each violation is found in Regulation
18360.2.
(c) General Requirements
for Eligibility, Considerations, Factors, and Exclusions.
(1) General Eligibility Requirements:
(A) Sign and submit to the Commission a
streamline stipulation, decision, and order on a form provided by the
Commission, and
(B) Pay a proposed
penalty by cashier's check, electronic payment, or money order in an amount as
determined in Regulation 18360.2.
(2) Considerations and Factors.
(A) Exclusions from Tier Two Streamline
Program include:
(i) Any evidence of an intent
to conceal or violate the Political Reform Act or regulations relating to the
Act.
(ii) Presented the FPPC false
or altered evidence.
(iii) Made
false statements to the FPPC regarding material facts.
(iv) Evidence of intentional interference
with a witness in the FPPC matter.
(v) The extent and gravity of the public harm
in the aggregate is more than minimal.
(vi) Has other violations under review for
prosecution that do not qualify for a streamline penalty.
(B) Violations eligible for possible
inclusion in the Tier Two Streamline Program include:
(i) The same candidate, committee, or
principal officer has paid a Tier One penalty to the Commission or received a
Warning Letter from the Commission for the same type of violation occurring
within the last five years.
(ii)
For late statements and reports, history of not timely filing statements or
reports.
(d) Specific Requirements for Eligibility.
(1) Late Statements and Reports.
(A) To enter into a streamline settlement, an
individual who failed to timely file a campaign statement or report, lobbying
report, or Statement of Economic Interests must file the late statement or
report with the appropriate agency unless the relevant information was reported
by the person elsewhere or the FPPC determines that the information has been
sufficiently disclosed in the stipulation and/or other filings.
(B) Statement of Economic Interests --
Considerations and Factors.
(i) Violations
eligible for possible inclusion in the Tier Two Streamline Program include:
a. The public official has paid a Tier One
penalty to the Commission or received a Warning Letter from the Commission for
the same type of violation occurring within the last five years.
b. The undisclosed economic interests were
from a source that was regulated by or had business before the filer's agency
but did not cause a conflict of interest violation under Sections
1090 or
87100.
(C) Campaign Statement or Report --
Considerations and Factors.
(i) Violations
eligible for possible inclusion in the Tier Two Streamline Program include:
a. Committees excluded from Tier One as a
result of the limits based on population for the Tier One Streamline Program
but limited to a maximum of $100,000 in activity for the relevant statement or
report.
b. A 24-Hour Report
required to be filed by a committee as defined in Section
82013 (a) and (b)
during the last 16 days before the election and not filed before the election
unless the amount required to be reported was $50,000 or greater.
c. Any 24-Hour Report required to be filed by
a committee as defined in Section
82013 (a) and (b)
and not filed before the election and the contribution or expenditure was not
reported on another report or statement filed by the committee before the
election, unless the subject contribution or expenditure would have disclosed
an advertisement or mass mailing paid for or sent by the committee, and the
advertisement or mass mailing failed to disclose the name of the committee in
accordance with Section
84502 or
84305.
(ii) Exclusions from the Tier Two Streamline
Program include:
a. The late filed report was
filed more than five business days after it was due and the timely reporting of
the contribution would have required a change to the disclosure of the
committee's top contributors, as required by Sections
84501, subdivision (c) and
84503.
(D)
Lobbying Reports Required under Chapter 6 of the Political Reform Act --
Considerations and Factors.
(i) Exclusions
from the Tier Two Streamline Program include:
a. Evidence that the filer tried to conceal
lobbying activity.
b. An individual
lobbied without registering.
c.
There was evidence of a substantial amount of activity not disclosed in
connection with legislative or administrative actions actively lobbied during
the period.
d. The undisclosed
activity included campaign contributions.
(ii) Violations eligible for possible
inclusion in the Tier Two Streamline Program include:
a. The total required activity to be reported
for that reporting period is greater than $50,000 but less than
$100,000.
b. Multiple reports not
timely filed.
(2) Unreported Economic Interest(s) on a
Statement of Economic Interests.
(A)
Eligibility Requirements: File an amended Statement of Economic Interests with
the appropriate agency disclosing the previously undisclosed economic
interest.
(B) Considerations and
Factors.
(i) Exclusions from the Tier Two
Streamline Program include:
a. The undisclosed
economic interest caused a conflict of interest violation under Sections
1090 or
87100.
(ii) Violations eligible for possible
inclusion in the Tier Two Streamline Program include:
a. The undisclosed gift(s) or income received
from a source that was regulated by or had business before the filer's
agency.
(3) Unreported Lobbying Activity,
Contributions or Expenditures.
(A) Eligibility
Requirements: File an amended campaign statement or report that includes all
required information including contributions received, expenditures made, or
other activity.
(B) Considerations
and Factors.
(i) Violations eligible for
possible inclusion in the Tier Two Streamline Program include:
a. Campaign Reporting: The total amount
unreported is greater than the applicable population-based limit per reporting
period on the committee otherwise found in Regulation 18360.1 but less than
$100,000.
b. Lobbying Reporting:
The total unreported activity to be reported for that reporting period is less
than $100,000.
(4) Cash Contribution(s) or Expenditure(s) of
$100 or More. Cash means legal tender and cashier's checks or similar
instruments not drawn on the contributor's account and that does not include
the name of the contributor on its face.
(A)
Eligibility Requirements: Refund to the source of the contribution or the State
of California General Fund, if the source of a contribution cannot be
determined. Disclose the source of the contribution(s) or recipient(s) of the
expenditure(s) on the appropriate campaign statement(s) or report(s).
(B) Considerations and Factors.
(i) Exclusions from the Tier Two Streamline
Program include:
a. The person made personal
use of campaign funds.
(ii) Violations eligible for possible
inclusion in the Tier Two Streamline Program include:
a. Failure to disclose the cash
contribution(s) or expenditure(s) on campaign statement(s) or report(s) if the
total amount of cash is $1,000 or less for that statement or report.
b. The percentage of cash contributions and
expenditures of $100 or more exceeds 25% but is not greater than 50% of total
compaign contributions and expenditures of the committee for the reporting
period.
c. The total amount of cash
contributions and expenditures for the reporting period exceeds $10,000 but is
not greater than $25,000.
(5) Campaign Bank Account.
(A) Eligibility Requirements: Disclose the
contribution(s) or expenditure(s) on the appropriate campaign statement(s) or
report(s).
(B) Considerations and
Factors.
(i) Exclusions from the Tier Two
Streamline Program include:
a. The person made
personal use of campaign funds.
b.
The campaign records were insufficient to determine if use of another account
concealed other violations.
(ii) Violations eligible for possible
inclusion in the Tier Two Streamline Program include:
a. The total amount of all contributions not
deposited in a campaign bank account during the statement period exceeds 10%
but is less than 40% of the total contributions received for that period or the
total amount exceeds $10,000 but is less than $25,000.
b. The total amount of all campaign
expenditures not from the campaign bank account during the statement period
exceeds 10% but is less than 40% of the total amount of all campaign
expenditures for that period or the total amount exceeds $10,000 but is less
than $25,000.
(6) Committee Naming.
(A) Eligibility Requirements: Committee name
must be amended to comply with committee naming requirements.
(B) Consideration and Factors.
(i) Exclusions from the Tier Two Streamline
Program include:
a. Name was intentionally
misleading or ambiguous.
(ii) Violations eligible for possible
inclusion in the Tier Two Streamline Program include:
a. Incorrect name caused advertisements to be
incorrect.
b. Incorrect name failed
to disclose a single major contributor, major donor, or sponsor.
c. The committee had activity over $10,000
but less than $50,000 for the reporting period during which the committee name
was incorrect.
(7) Advertising and Mass Mailing Disclosures.
(A) Eligibility Requirements: Correction of
the advertisement or mass mailing, if feasible, was done.
(B) Considerations and Factors.
(i) Violations eligible for possible
inclusion in the Tier Two Streamline Program include:
a. The violation resulted from a lack of
committee formation through ignorance of the requirements and the committee
raised less than $25,000 and spent less than $25,000.
b. The violation was inadvertent or negligent
and was disclosed on a campaign statement or report of the committee but is
likely to result in confusion regarding the identity of a top contributor,
sponsor, controlling candidate, or ballot measure supported or opposed or
whether the advertisement is an independent expenditure.
c. The advertisement or mass mailing contains
less than four missing or incorrect disclosures or display requirements in the
disclaimer and included in those errors is no more than two of the following:
(1) "ad paid for by" or "paid for by"
requirement,
(2) top contributor
information (top contributor must be substantially correct),
(3) the statement that the advertisement was
not authorized by a candidate or committee controlled by a candidate,
or
(4) the committee name
requirement. Only one of the errors can be a top contributor, and the top
contributor must be substantially correct to be included in the Tier Two
Streamline Program. A disclosure that fails to meet sizing requirements to the
extent that the disclosure is not legible to the average viewer is considered a
"missing or incorrect disclosure" and not "substantially
correct."
(8) Recordkeeping (as required by Section
84104 and Regulation 18401).
(A) Considerations and Factors.
(i) Exclusions from the Tier Two Streamline
Program include:
a. The lack of recordkeeping
appears to be intentional.
(ii) Violations eligible for possible
inclusion in the Tier Two Streamline Program include:
a. The inadvertent or negligent lack of
recordkeeping inhibited audit efforts.
b. The inadvertent or negligent lack of
recordkeeping made it impracticable to determine if a person substantially
complied with the Act's campaign reporting requirements.
c. The inadvertent or negligent lack of
recordkeeping may have inhibited discovery of other
violations.
(9) Gift Limit (contained within Sections
86203 or
89503).
(A) Eligibility Requirements: If a person
receives a gift over the limit, they must return the gift or reimburse the
giver for the difference between the gift's fair market value and the
applicable gift limit.
(B)
Considerations and Factors.
(i) Violations
eligible for possible inclusion in the Tier Two Streamline Program include:
a. The gift giver is a named party in, or the
subject of, a governmental decision before the gift recipient or the gift
recipient's agency but did not cause a conflict of interest.
b. Failure to report the gift on a Statement
of Economic Interests, if required.
c. The fair market value of the gift is more
than $200 over the gift limit but less than $1,000 over the gift
limit.
(10) Major Donor Filers.
(A) Eligibility Requirements. To enter into a
streamline settlement, an individual who failed to timely file a campaign
statement or report as a major donor committee must file the late statement or
report with the appropriate agency unless the relevant information was reported
by the person elsewhere or the FPPC determines that the information has been
sufficiently disclosed in the stipulation and/or other filings.
(B) Considerations and Factors.
(i) Exclusions from the Tier Two Streamline
Program include:
a. The contribution also
required 24-Hour Reports to be filed within the last 16 days before the
relevant election and the recipient of the contribution did not file a 24-Hour
Report before the relevant election.
(ii) Violations eligible for possible
inclusion in the Tier Two Streamline Program include:
a. Contributions for the calendar year were
less than $150,000 and less than three statements or reports were late during
that calendar year.
(11) Behested Payment Reports.
(A) Eligibility Requirements. To enter into a
streamline settlement, an individual who failed to timely file a behested
payment report must file the late report with the appropriate agency unless the
FPPC determines that the information has been sufficiently disclosed in the
stipulation and/or other filings.
(A) Considerations and Factors.
(i) Exclusions from the Tier Two Streamline
Program include:
a. A perceived or actual
personal benefit. A "perceived personal benefit" means the Enforcement Chief
believes the evidence sufficiently supports a reasonable belief or strong
suspicion that the official received a benefit, which includes evidence of a
direct benefit to a family member of the official.
b. The maker of the payment is a named party
in, or the subject of, a governmental decision before the behestor or the
behestor's agency while the decision is pending and within three months before
and for three months following the date a final decision is rendered. "Maker"
includes the individual, the entity and any agent acting as an intermediary.
For governmental decisions regarding legislation, "governmental decision"
includes only nongeneral legislation as defined in Section
87102.6.
c. The amount to be reported on the behested
payment report exceeded $150,000.
d. The amount required to be reported, when
divided by the number of public officials participating in the behest, was
$150,000 or more.
1. New section
filed 2-22-2021; operative 3-24-2021 pursuant to Cal. Code Regs., tit. 2,
section 18312(e).
Submitted to OAL for filing pursuant to Fair Political Practices Commission v.
Office of Administrative Law, 3 Civil C010924, California Court of Appeal,
Third Appellate District, nonpublished decision, April 27, 1992 (FPPC
regulations only subject to 1974 Administrative Procedure Act rulemaking
requirements and not subject to procedural or substantive review by OAL)
(Register 2021, No. 9).
Note: Authority cited: Section
83112,
Government Code. Reference: Sections
1090,
84104 and
87100,
Government Code.