Merrill, 020819 ALAGO, AGO 2019-21

Case DateFebruary 08, 2019
CourtAlabama
Honorable John H. Merrill
AGO 2019-21
No. 2019-021
Alabama Attorney General Opinion
State of Alabama Office of the Attorney General
February 8, 2019
         Honorable John H. Merrill          Secretary of State          State Capitol Suite S-105          600 Dexter Avenue          Montgomery, Alabama 36130-4650          Secretary of State - Ethics Commission -Fair Campaign Practices Act - Penalties -Civil Remedies          Discussion of the authority of the Secretary of State and Ethics Commission regarding civil penalties under the Fair Campaign Practices Act.          Dear Mr. Merrill:          This opinion of the Attorney General is issued in response to your request.          QUESTIONS          (1) What are the Secretary of State's obligations under the Fair Campaign Practices Act ("FCPA") in light of Advisory Opinion No. 2018-11 of the Ethics Commission ("Commission")?          (2) Pursuant to section 17-5-19.1 of the Code of Alabama, the Secretary of State is required to inform the Attorney General and district attorney of a political action committee's or candidate committee's violation of the filing requirements of the FCPA four or more times in an election cycle. Where the number of past violations has been reduced by the Commission pursuant to its opinion, does the Secretary of State still have an obligation to notify upon an additional violation?          (3) Under section 17-5-19.1(e) of the Code of Alabama, is the "finality of review" for purposes of the requirement to pay a penalty/institute proceeding to collect the penalty the date the Commission acts on the review or the date its final order is entered?          FACTS AND ANALYSIS          You request guidance on how to perform the Secretary of State's statutory duties under the civil penalties provision of the FCPA in light of recent actions by the Alabama Ethics Commission. Some background is necessary before addressing your specific questions.          Under the FCPA, non-local candidates and committees must file campaign finance reports with the Secretary of State. See Ala. Code § 17-5-9 (Supp. 2018). It is a Class A misdemeanor for a person to intentionally fail to file a required report. Ala. Code § 17-5-19(b) (Supp. 2018). In addition to this criminal penalty, the FCPA provides civil or "administrative penalt[ies] against any person who fails to timely file a report required by [the FCPA] and who does not remedy the filing of the report" under the FCPA's terms. Ala. Code § 17-5-19.1(a) (Supp. 2018). The statute creates a schedule of escalating civil penalties based on the number of violations committed in a single election cycle: a "first offense" is at least $300, a "second offense" is at least $600, and a "third or subsequent offense" is at least $1,200. See ALA. Code § 17-5-19.1(b)(l)-(3) (Supp. 2018). A "fourth failure to timely or accurately file a report in an election cycle shall create a rebuttable presumption of intent to violate the reporting requirements" in a prosecution. Ala. Code...

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