Current through Register Vol. 48, No. 12, March 22, 2024
a) A
report required to be filed within a specified time pursuant to Code Section
9-10 is delinquent if not received by the Board on or before the due date.
Reports received via U.S. mail are deemed received by the Board as of the date
stamped by Board staff on the documents submitted.
b) If a report is or continues to be
delinquent, it is subject to a civil penalty as set out in subsection
(d).
c) When a report required by
Code Section 9-10(b) is delinquent, the Board will provide the committee a
notice of delinquency. For all violations of Code Section 9-10, within 365 days
of the violation, the Board will send by first class mail a notice of violation
to the chair and the treasurer of each delinquent political committee with an
order assessing a civil penalty calculated in accord with subsection (d). The
notice of violation and order shall also be sent by certified mail to that
committee's address. The notice of violation shall state that the Board has
issued a civil penalty that will be final unless the committee shows cause
during an appeal in accord with subsection (g) why the penalty should not be
assessed.
d) The Board will
calculate the civil penalty for delinquent filings under Code Section 9-10 and
subsection (c) of this Section as follows:
1)
If the committee's total receipts, total expenditures, and balance remaining at
the end of the reporting period for which the delinquent report was due are
each $10,000 or less, the political committee will be assessed a fine of $10
per business day for the first violation, $25 per business day for the second
violation, $50 per business day for the third violation, and $75 per business
day for the fourth and each subsequent violation, to a maximum of $250 for the
first violation, $500 for the second violation, $1,000 for the third violation,
and $1,500 for the fourth and each subsequent violation.
2) If the committee's total receipts, total
expenditures, or balance remaining at the end of the reporting period for which
the delinquent report was due exceeds $10,000, the political committee will be
assessed a fine of $20 per business day for the first violation, $50 per
business day for the second violation, $100 per business day for the third
violation, and $150 for the fourth and each subsequent violation, to a maximum
of $500 for the first violation, $1,000 for the second violation, $2,000 for
the third violation, and $3,000 for the fourth and each subsequent
violation.
3) For the purposes of
subsection (d)(1)-(2):
A) calculation of a
committee's total receipts shall include in-kind contributions in addition to
monetary contributions; and
B)
calculation of a committee's balance remaining at the end of the reporting
period shall include the value of any investments held by the
committee.
4) If the
delinquent filing is a quarterly report, the Board will assess a civil penalty
even if a committee has no receipts or expenditures to disclose on the
quarterly report. No civil penalty shall be assessed against a committee if the
quarterly report is mailed and postmarked at least 3 days prior to the filing
deadline unless the committee has been previously notified by the Board it must
file its reports electronically under Code Section 9-28.
5) If the report at issue is a Schedule A-1
(report of contributions of $1,000 or more), a civil penalty for a violation of
Code Section 9-10(c) may not exceed the amount of the contribution.
6) If the report at issue is a Schedule B-1
(report of independent expenditures of $1,000 or more), a civil penalty for a
violation of Code Section 9-10(e) may not exceed the amount of the independent
expenditure.
e) The Board
will calculate other civil penalties as follows:
1) If the delinquently filed report is a
Statement of Organization (Form D-1), the Board will assess a civil penalty of
$50 for each business day that the report remains unfiled after its due date.
The penalties shall not exceed $5,000.
2) If a committee receives a contribution or
transfer in violation of Code Section 9-8.5, the civil penalty will be
calculated as 150% of the amount of the contribution or transfer that exceeded
the contribution limitations, except that if in the Board's opinion the
violation was committed inadvertently or negligently, the civil penalty will be
reduced to 10% of the calculated civil penalty for a first violation and 50% of
the calculated civil penalty for a second violation.
3) If an independent expenditure committee
makes a contribution in violation of Code Section 9-8.6(d), the Board will
assess a fine equal to the amount of any contributions received in excess of
the contribution limits for that particular contributor, during the two years
preceding the date of the first contribution made in violation of the Act
during a given quarterly reporting period.
f) In addition to the civil penalties
provided for in Code Section 9-10(g), a committee or organization required to
report under the Election Code may, for violations of provisions of Article 9
of the Election Code other than delinquent filing, be assessed a civil penalty
under the provisions of Code Section 9-23 and this subsection (f). The Board
will calculate civil penalties in accordance with subsections (d) and (e). A
committee that violates both Code Section 9-10 and an order of the Board may be
liable for separate penalties for each violation. In cases of alleged violation
of an order of the Board brought under the provisions of Code Section 9-23, the
Board will mail to each committee or organization alleged to be in violation of
a Board order notice of a proposed civil penalty calculated in accord with the
terms of this Part, which proposed penalty shall become effective without
further proceedings unless the committee or organization receiving the notice
appeals the proposed civil penalty.
g) Appeals. A political committee assessed a
civil penalty under Code Sections 9-3, 9-8.15, 9-8.5, 9-8.6, 9-8.10, or 9-10 or
that has received notice of a proposed civil penalty for violation of a Board
order under Code Section 9-23 may:
1) submit,
within 30 calendar days after the mailing of the assessment notice, a request
for waiver of appearance and either a written notice of appeal, if submitted by
an attorney for the committee, or an appeal affidavit, if submitted by the
candidate, chair, or treasurer of the committee, in the form provided by the
Board. The notice of appeal or appeal affidavit must state with specificity the
reasons for the late filing or violation of the Board order, as the case may
be, to show why a civil penalty should not be assessed. Any basis for appeal
not stated in the notice of appeal or appeal affidavit may be deemed waived. An
appeal affidavit shall either be in writing, made under oath and upon penalty
of perjury sworn to before a notary public or any person authorized to
administer oaths, or be made pursuant to Section 1-109 of the Code of Civil
Procedure [735 ILCS 5 ]. A Committee
submitting a waiver of appearance must submit all evidence supporting its
appeal with its notice of appeal or appeal affidavit; or
2) submit, within 30 calendar days after the
mailing of the assessment notice, a request for hearing and either a written
notice of appeal, if submitted by an attorney for the committee, or an appeal
affidavit, if submitted by the candidate, chair, or treasurer of the committee,
in the form provided by the Board, stating with specificity the reasons for the
late filing or violation of the Board order, as the case may be, to show why a
civil penalty should not be assessed. Any basis for appeal not stated in the
notice of appeal or appeal affidavit may be deemed waived. An appeal affidavit
shall either be in writing, made under oath and upon penalty of perjury sworn
to before a notary public or any person authorized to administer oaths, or be
made pursuant to Section 1-109 of the Code of Civil Procedure; or
3) pay, within 30 days after the mailing of
the assessment notice, the civil penalty assessed. If notice of appeal or
appeal affidavit is filed, with or without waiver of appearance, the civil
penalty shall not be due until the appeal is determined by the Board.
4) to be considered timely, an appeal must
either be received by the Board within 30 calendar days after the date on the
assessment notice or mailed to the Board and postmarked within 30 calendar days
after the date on the assessment notice. If the envelope containing an appeal
is received after the 30 day period and lacks a postmark, or if the postmark is
illegible, the appeal shall not be considered timely filed and will be returned
to the sender, if possible.
h) An appeal filed pursuant to subsection
(g)(1) or (g)(2) by the political committee shall be assigned to a Hearing
Officer, who will provide notice and a hearing to the committee, if requested,
or if the Hearing Officer determines a hearing is necessary to understand the
applicable facts. A Hearing Officer may seek clarification or supporting
evidence from the committee regarding the basis for appeal, provided such
clarification or evidence is limited and specific to the scope of the defense
contained within the notice of appeal or appeal affidavit. Upon the conclusion
of the hearing, the Hearing Officer shall issue a written report that includes
findings of fact, conclusions of law, and a recommendation whether or not to
grant the appeal. If the committee waived its right to hearing, and no hearing
was held, the Hearing Officer's report, findings of fact, conclusions of law,
and recommendation shall be based solely upon the notice of appeal or appeal
affidavit and any supplementary evidence simultaneously submitted with
it.
i) The standard of review for
an appeal filed pursuant to subsection (g)(1) or (g)(2) is whether the
committee has demonstrated by a preponderance of the evidence that the
assessment was in error. Error may be shown by proving the committee did not
violate Article 9, the Board's assessment was incorrect, an affirmative defense
is applicable, or other meritorious basis exists to grant the appeal.
j) Post-Appeal Hearing Defense or Evidence
1) Any defense and any accompanying evidence
upon which the appeal is based that is presented to the Board following an
appeal hearing, either by personal appearance before or a written appeal
submitted to a Hearing Officer, shall be limited to the defense and evidence
that was presented at the appeal hearing. The defense and evidence shall
include, but not be limited to, interpretation of statute and rules,
consideration of written or oral testimony tendered at the appeal hearing and
consideration of documentary evidence tendered at the hearing.
2) Any defense and accompanying evidence that
was not known, and could not reasonably be expected to have been known, by the
respondent at the time of the appeal hearing may be presented to the Board. The
Board may, upon motion or on its own motion, remand the defense and evidence
back to the original Hearing Officer, or may submit it to a new Hearing Officer
for consideration. If an issue exists as to the applicability of this
exception, the Board will rule upon the issue immediately after presentation of
the disputed defense and evidence. The respondent in the case shall be given an
opportunity to demonstrate to the Board that the disputed defense and evidence
was not known at the time of the appeal hearing and the respondent should not
have been expected to have been aware of the defense and evidence at the time
of the appeal hearing.
3) Nothing
in this Part shall be construed to prevent the respondent from being
represented by counsel at the presentation before the Board when the counsel
did not represent the respondent at the appeal hearing. Counsel shall be
licensed to practice law in the State of Illinois as required by Section
125.60.
k) In addition to deciding whether to grant
the appeal using the standard in subsection (i), the Board will consider the
following factors in determining whether to waive or reduce a fine:
1) Whether the committee made an attempt to
disclose the contribution, and any attempts made to correct the
violation;
2) Whether the violation
was inadvertent, knowing, or intentional;
3) Whether the violation is attributed to a
clerical or computer error;
4) The
amount of the contribution or total contributions in the report;
5) Whether the violation arose from a
discrepancy between the date the contribution was reported and the date the
contribution was received by a political committee;
6) The number of days the report was
submitted late; and
7) Any prior
violations, including past violations of any committee composed of the one or
more of the same officers, or for the same purpose or for the support of the
candidacy of the same person, irrespective of office, as the committee
currently being assessed a civil penalty.
l) If a political committee or organization
required to report under the provisions of Article 9 that is subject to a civil
penalty fails, within the time required, to make payment in full of the
assessed civil penalty, then the Board will work with the Attorney General to
proceed with efforts at collection pursuant to the Illinois State Collection
Act of 1986 [30 ILCS 210 ]. The Board will
not hear an appeal of a civil penalty imposed for delinquent filing or the
violation of a Board order if neither a request for waiver of appearance and
notice of appeal or appeal affidavit nor a request for hearing and notice of
appeal or appeal affidavit is filed within the time required. If notice of
appeal or appeal affidavit is received and is not accompanied by either a
request for hearing or waiver of appearance, a hearing may be scheduled at the
Hearing Officer's discretion.
m)
Notwithstanding any provision of this Section to the contrary, the Board will
stay the enforcement of any civil penalty in cases of first time violation of a
filing deadline. If a committee that has not violated Code Section 9-10 in more
than two years is assessed a penalty for multiple Schedule A-1 violations that
the committee confirms were part of a single deposit, the violations may be
stayed. The stay shall continue only so long as no subsequent violations of
Article 9 or of Board orders occur. Violation of Article 9 or a Board order
will cause the civil penalty otherwise stayed to become due and may expose the
committee or organization to further liability in accord with this
Section.
n) For the purpose of this
Section, second and subsequent violations are deemed to occur with reference to
the time the first violation occurred, not when a hearing, if any is required,
concerning the first violation is held. The Board may consider two or more
allegations of violations at the same hearing, treating the first as an initial
violation and the remaining as subsequent violations, imposing appropriate
civil penalties for each. For the purposes of this Section, a violation is
considered to have occurred on the first day a report is delinquent (see
subsection (a)).
o) Notwithstanding
any other provision of this Section:
1) if an
active political committee or organization violates Code Section 9-10 no more
than once during a two year period, it shall, after two years have lapsed
following the violation date, be considered as never having violated Code
Section 9-10. For a single violation, the two year period begins to run with
the date of the violation. If an active political committee or organization is
assessed more than one civil penalty and has paid all assessed civil penalties,
it shall be considered for assessment purposes as not having violated Code
Section 9-10 if it is assessed no other civil penalty during a two year period
following receipt of payment by the Board;
2) if a committee or organization is assessed
a single penalty under Code Section 9-10 and subsequently files a final report
pursuant to Code Section 9-5 or has filed a final report pursuant to Code
Section 9-5 prior to the assessment, during the two year period beginning with
the date of the violation, any successor committee or organization shall be
considered, for assessment purposes, as not having violated Code Section 9-10
if it is assessed no other penalty;
3) if a committee or organization is assessed
more than one penalty under Code Section 9-10 and subsequently files a final
report pursuant to Code Section 9-5 or has filed a final report pursuant to
Code Section 9-5 prior to the assessment, and the political committee or
organization has not paid the civil penalties, any successor committee or
organization that subsequently pays all civil penalties due shall be considered
as never having violated Code Section 9-10 if, for two years from the date of
receipt of payment by the Board, the successor committee or organization is
assessed no other civil penalty;
4)
if a committee or organization is assessed more than one penalty under Code
Section 9-10 and subsequently files a final report pursuant to Code Section 9-5
or has filed a final report pursuant to Code Section 9-5 prior to the
assessment, and the political committee or organization has not paid the civil
penalties, the two year period shall begin with the date of the final Board
order, unless the final report is filed subsequent to the date of the final
Board order, in which case the two year period shall begin with the date the
final report is received by the Board. If no successor committee is formed
during that period, the committee shall be considered for assessment purposes
as not having violated Code Section 9-10.
p) Upon notice by the Hearing Officer or upon
request by any party, the Hearing Officer may direct parties or their attorneys
to appear at a specified time and place for a conference, either during or
prior to any hearing, for purposes including, but not limited to:
1) the formulation and simplification of
issues;
2) the necessity or
desirability of amending the assessment notice for the purpose of clarification
or correction;
3) the possibility
of stipulations concerning material facts;
4) the limitations of the number of
witnesses;
5) other matters as may
aid in the simplification of evidence and the disposition of the
proceeding.