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...