Recreation/Senior Center and Aquatic Center Expansion Task Force Agenda and Packet 2016 05 25

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Malcolm Fleming. City Manager Heather A. Balser, Deputy City Manager May 2, 2016 Page 4 of 5 A second question concerning ballot issue elections concerns the interplay between the FCPA prohibition and activities incident to formulating a TABOR ballot issue proposal for capital facilities. Specifically, how does the FCPA regulate the gathering or dissemination of information about a capital program being put on the ballot? On one hand the timing rule under the FCPA is fairly straight forward —no moneys may be expended after the ballot issue is submitted for fixing of the ballot title. On the other hand, specific timelines and activities present problems to be avoided. This is illustrated in Skruch v. Highlands Ranch Metro. Districts Nos. 2 and 3, 107 P.3d. 1140 (Colo. App. 2004). In this case, the Districts formed a citizens panel to consider a bond election to fund community improvements. In July 2002, the Districts approved expenditures for preparing, printing and mailing of a brochure to explain the proposed improvements. The brochure was mailed on August 22. On August 27, the ballot title for the ballot issue was fixed. Thereafter, the Districts paid the bills for the brochure. The Court of Appeals held that while the brochure did not expressly advocate for a yes or no vote on the measure, it did impermissibly "urge" electors to vote for the measure, particularly because the brochure specifically mentioned the bond election measure, "did not present arguments for or against the measure...took a position exclusively in favor of the issue, presented no contrary argument, and expressly advocated the passage of the bond initiative that was titled only days after the mailing of the brochure." 107 P.3d. at 1142 -43. In addition, the Court held that even though the brochure was mailed before fixing of the ballot title, the subsequent expenditure was enough to trigger the FCPA. In contrast to Skruch, there are administrative law decisions holding that various activities to disseminate information did not violate the FCPA, on grounds that they met the factual summary requirements, were outside the period when the prohibition applies, and/or did not urge a voter to vote for or against the measure within the meaning of the statute. See, e.g., Beer v. Loveland, Secretary of State ALJ Case No. 2001 -012 (Section 117 does not regulate expenditures before a title is fixed; therefore, because City expenditures for advocacy occurred prior to then, the city did not violate Section 117). III, ENFORCEMENT/PENALTIES The Secretary of State has jurisdiction over a complaint of an FCPA violation. Any person believing a violation has occurred may file a complaint, and a hearing before an administrative law judge is held. Any violation of C.R.S. § 1-45 -117 is "subject to the provisions of sections 9(2) and 10(1)5 of article XXVIII of the state constitution or any appropriate order or relief, including an order directing the person making a contribution or expenditure in violation of this section to reimburse the fund of the state or political subdivision, as applicable, from which such moneys were Pursuant to Article XXVIII § 10(1), any person who violates any provision of this article relating to contribution or voluntary spending limits shall be subject to a civil penalty of at least double and up to five times the amount contributed, received, or spent.... "' Light 1 Kelly, P.C. 101 University Boulevard, Suite 210, Denver, CO 80206 www.lightkelly.com 8