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Ordinance 1818• ORDINANCE NO. 1818 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF CUPERTINO AMENDING CHAPTER 2.06 OF THE CUPERTINO MUNICIPAL CODE RELATED TO CITY COUNCIL ELECTIONS AND CAMPAIGN FINANCE DISCLOSURE WI-{EREAS, Ordinance No. 1757 was enacted on May 19, 1997, and implemented a number of reforms related to City Council campaign financing; and WHEREAS, the City Council amended those provisions on September 8, 1998, by enacting Ordinance No. 1797 to improve and clarify the procedures; WHEREAS, The City Council wishes to further refine the procedures related to campaign finance disclosure; NOW, THEREFORE, BE IT ORDAINED AS FOLLOWS: Chapter 2.06 of the Cupertino Municipal Code is hereby amended to read as follows: Chapter 2.06 CITY COUNCIL-CAMPAIGN FINANCE 2A6.010 Purposes. A. The proper operation of democratic government requires that elected officials be responsible to the people; that monetary contributions to political campaigns on behalf, or against, a candidate, while a legitimate form of public participation in the political process, should not be so great as to permit particular individuals or organizations to exercise a controlling or undue influence on the election of City Councilpersons. B. This chapter is intended to minimize the potentially corrupting influence and appearance of corruption caused by excessive contributions to City Council campaigns or on behalf of, or against a candidate, by providing for reasonable contribution limits for candidates and "independent committees" as part of the election process. C. This chapter also is intended to lessen the potentially comipting pressures on candidates, officeholders, and committees, for fundraising by establishing sensible time periods for soliciting and accepting campaign contributions. D. This chapter also seeks to enable each City voter to cast an infornted vote by requiring tftat candidates disclose all campaign contributions prior to a City election and by • requiring independent expenditure committees to reveal the source of their funding prior Ordinance No. 1 i;18 Cupertino City Council Page 2 to a City election consistent with free speech principles contained in the Constitution of • the United States and the State of California. (Ord. 1757 § 1 (part), 1997) 2.06.020 Statutory authority Section 8570G(b) of the Califomia Government Code, adopted by the voters of the State of California on November G, 1996, as part of Proposition 20$, authorizes the City to impose lower contribution limitations or other campaign disclosures or prohibitions that arc as, or more, stringent than set forth under the applicable provisions of state law. (Ord. 1757 § I (part), 1997) 2.06.030 Definitions. Unless otherwise provided in this chapter, all words and phrases in this chapter shall have the same meaning as are defined in Title 9 of the California Government Code as then exists on the date of enactment of this chapter or as it may be later amended. Words and phrases not specifically defined shall be constmcd according to the context and approved usage of the language. (Ord. 1757 § 1 (pan), 1997) 2.OG.O~tO Conflicts with provisions of state law. Where conflict occurs behveen any provision established by this chapter and any provision of • applicable state law, the more restrictive or stringent of any such provision shall apply. (Ord. 1757 § 1 (part), 1997) 2.06.050 Constitutionality If any section, subsection, sentence, clause, or phrase of this chapter is for any reason held to be invalid or unconstitutional, such decision shall not affect the validity of the remaining portions of this chapter The Council declares that it would have passed this chapter, and each section, subsection, sentence, clause and phrase thereof, irrespective of the fact that any one or more sections, subsections, sentences, clauses or phrases had been declared invalid or unconstitutional (Ord. 1757 $ 1 (part), 1997) 2.06.060 Construction. The provisions of this chapter, and all proceedings under it are to be construed liberally with a view to effect its purposes and to promote justice. (Ord. 1757 § 1 (part), 1997) 2.06.070 Prohibited acts defined. Whenever in this chapter, any act or omission is made unlawful, it shall include causing, allowing, permitting, aiding, abetting, suffering, or concealing the fact of such act or omission. • (Ord. 1757 § 1 (part), 1997) Ordinance No. 1818 Cupertino City Council Page 3 • 2.O6A80 Penalty for violations. Any person ~vho violates any provision of this chapter is guilty of a misdemeanor punishable by a fine not exceeding one thousand dollars, imprisonment for a term not exceeding six months, or by both such fine and imprisonment. (Ord. 1757 § 1 (part), 1997) ?.06.090 Remedies cumulative. All remedies provided for in this chapter shall be cumulative and not exclusive. All remedies contained Herein shall be in addition to any criminal or civil penalties contained in Section 83116 et seq. of the California Government Code or any other applicable provision of state law. (Ord. 1757 § 1 (part), 1997) 2.06.100 Contribution limits. A. Except as provided hereinafter, no person, other than small contributor committees or political party committees, shall make to any candidate for City Council or to the candidate's controlled committee, and no such candidate or the candidate's controlled committee shall accept from any person, a contribution or contributions totaling more than one hundred dollars for each election in which the candidate is attempting to be on the ballot or is a write-in candidate. • B. No small contributor committee or political party committee shall make to any candidate for City Council or the controlled committee of such a candidate, and no candidate shall accept from a small contributor committee or political party committee, a contribution or contributions totaling more than two hundred dollars for each election in which the candidate is attempting to be on the ballot or is a write-in candidate. C. The forgiveness of any debt constitutes a campaign contribution and any forgiveness greater than the conMbution limits contained herein, either for a candidate or an independent committee, is prohibited. D. The provisions of this section shall not apply to a candidate's contribution of his or her personal funds to his or her own campaign committee. Candidates can contribute to their own campaigns at any time before or after the election. The provisions of this section limiting campaign contributions shall apply to contributions from a spouse. (Ord. 1797 (part), 1998; Ord. 1757 § 1 (part), 1997) E. Nohvithstandingtpe provisions of Section 2.06.100 and except as provided hereinafter, any committee making independent expenditures of one thousand dollars or more shall not accept from any person any contribution in excess of two hundred fifty dollars for each election in which the committee is participating. • 3 Ordinance No. 1818 Cupertino City Council Page 4 . 2.06.1 10 Restrictions on when contributions may be accepted. A. No candidate or committee may accept contributions more than six months prior to the election for which the contributions are to be utilized. B. No candidate may accept contributions later than fourteen days prior to the election. In the event that a candidate incurs more debt in his or her campaign than can be paid by contributions, the candidate must retire the debt from his or her o~vn personal funds prior to January 1 of the year following the election. Failure to retire the debt by that date constitutes a violation of this chapter. C. No committee making independent expenditures of one thousand dollars or more may accept contributions later than four days before the election. Any debt incurred by such committee which is not retired from campaign contributions prior to January 3.3~si 1St of the year following the election constitutes a violation of this chapter. D. This section shall not apply to any funds raised for the purposes described in Section 85305(d} of the California Government Code (related to attomcy's tees, cost of recounts, and other costs described in Section 85305(d). (Ord. 1757 § 1 (part), 1997) 2.06.120 Disclosure statements. i A. Forty days prior to a City Council election, all candidates and independent expenditure committees shall file with the City Clerk two originals of the first pre-election disclosure report required by the Fair Political Practices Commission disclosing the name, address, employer and contribution amount of all persons making contributions exceeding ninety- ninedollars. Contributions requiring disclosure include "in kind" contributions of a fair market value ofninety-nine dollars or more. In addition, committees making independent expenditures of one thousand dollars or more must also disclose the name, address, and employer of all officers of the committee. The filing period for the initial disclosure is January l st of the even numbered year prior to the election through forty-five days prior to the election, and the deadline is 5:00 p.m. in the City Clerk's Office. Facsimiles and postmarks are not acceptable. II. The following disclosure statements must be filed by candidates and independent expenditure committees twelve days prior to a city election: (1) Two originals of the second pre-election disclosure statement required by the Fair Political Practices Commission. The filing period is forty-four days prior through seventeen days prior to the election; and (2) A City of Cupertino disclosure statement must be filed by candidates and committees containing the same information as the disclosure statement required by the Fair Political Practices Commission. The filing period is sixteen days prior through fourteen days prior to the election. The deadline for both of these disclosure statements is 5:00 p.m. in the City Clerk's Office. Facsimiles and postmarks are not acceptable. Ordinance No. 1818 Cupertino City Council Page S • C. The City Clerk shall make all disclosure statements available to the public upon request and by posting them on the Cupertino Internet website by the eighth day prior to the city election. D. Four days prior to a city election, committees making independent expenditures of one thousand dollars or more shall file a City of Cupertino disclosure statement. The filing period for the City of Cupertino disclosure is thirteen days prior to the election through four days prior to the election, and the deadline is 5:00 p.m. in the City Clerk's Office. Facsimiles and postmarks are not acceptable. E. On January 31st of the year following a city election, all candidates and independent expenditure committees shall file semi-annual disclosure statements with the City Clerk as required by the Fair Political Practices Commission. The filing period for the final disclosure is from the sixteenth day prior to the election through December 31 of the year of the election, and the deadline is 5:00 p.m. in the City Clerk's Office. Facsimiles and postmarks are not acceptable. F. The filing of the above-described disclosure statements do not relieve candidates or committees from filing disclosure statements as required by the Fair Political Practices Act. (Ord. 1797 (part), 1998: Ord. 1757 § 1 (pan), 1997) . 2.06.130 Audits, appeals and complaints. A. The City Clerk shall engage the services of an independent auditor who shall review, in detail, all campaign disclosure statements. E3. Within five days aRer the initial disclosure statements proscribed by Section 2.06.130A arc filed with the City Clerk, the auditor shall prepare and submit to the City Clerk a written report describing any and all violations with respect to this chapter which have appeared from the statements on file. The clerk shall disseminate the report to the public forthwith. C. Any person, including a candidate, wishing to contest any portion of the auditor's report regarding any initial disclosure statement or wishing to file a separate complaint against a candidate or committee alleging a violation or violations of this chapter shall do so in writing filed with the City Clerk within five days of the public release of the auditor's report regarding initial disclosure statements. D. Within five days after the filing of any such contest or complaint, a hearing open to the public shall be held by an independent administrative judge engaged by the City, who will decide the merits of any such contest or complaint. Within five days after the completion of the hearing, the judge shall issue a written decision, which will be made available to the public. • 5 Ordinance No. 1818 Cupertino City Council Page 6 • f. Within three days after the second pre-election disclosure period for candidates as described in Section 2.OG.130B has elapsed (nine days prior to the election) the auditor shall prepare and submit to the City Clerk a second report describing violations of this chapter which have occurced since the first reporting period. The Clerk shall disseminate the report to the public forthwith. Any person, including a candidate, wishing to contest the auditor's report regarding any second pre-election disclosure statement by a candidate or wishing to file a separate complaint against a candidate or independent expenditure committee regarding a violation or violations of this chapter which are alleged to have occurred during the second reporting period may do so in the same manner described in subsection C of this section; provided however, that such contest or complaint must be filed within twenty- four hours of the public release of the auditor's report regarding the second disclosure. Within forty-eight hours of the filing of any such contest or complaint (six days prior to the election), a Bearing open to the public will be held by the independent administrative judge regarding the contest or complaint. No later than noon on the fourth day prior to the election, the independent administrative judge will issue and make public a written opinion regarding each appeal or complaint. G. The amendment of any disclosure statement, which is the subject of a violation deterniination, made by the auditor must be filed within forty-eight hours of the auditor's report. • H. whenever any contest or complaint is filed with the City Clerk pursuant to this chapter, or whenever a hearing before the independent administrative judge is set, the Clerk shall provide written notice to the contestant, the complainant, the relevant candidate or independent committee of the filing or hearing through either personal delivery or fax within twenty-four hours of the filing andlor hventy-four hours prior to any hearing, as tlic case may be. Any notice of hearing shall contain the date, time, and place of such hearing and shall have appended to aid notice a copy of this chapter. 1. With respect to any disclosure statement required by this chapter to be filed after an election, the audit and appeal procedure described in Section 2.OG.140B, C and D shall be followed. (Ord. 1757 ~ 1 (part), 1997) 2.06.140 Hearing proceedings. A. The independent administrative judge shall conduct all hearings described in Section 2.06.140 in a manner consistent with the Rules of "Procedure for Conducting Hearing" described in Appendix A attached to this chapter. B. The judge shall use his or her independent judgment as to the evidence presented. • Ordinance No. 1818 Cupertino City Council Page 7 • C. The burden of proof with respect to any contest or complaint shall be on the party making the contest or complaint. The burden of proof of any fact is upon the person asserting the fact. The burden of proof as to any fact is by a preponderance of the evidence. D. Notwithstanding anything to the contrary contained in subsection C of this section, any factual determination or finding of fact made by the City's auditor contained in his or her report shall constitute a rebuttable presumption as to the truth of the determination or finding. E. At the conclusion of the hearing, the judge may, in his or iter discretion, order any party to reimburse the City for any costs associated with the hearing, including audit costs. (Ord. 1757 § 1 (part), 1997} 2.OG.150 Criminal proceedings. Any criminal proceedings against any person for a violation of this chapter will be prosecuted by an independent city prosecutor selected by the Presiding Judge of the Santa Claza County Superior Court. (Ord. 1757 § 1 (part), 1997) ~J 7 Ordinance No. 1818 Cupertino City Council Page 8 • Appendix A Rules of Procedure for Conducting Hearing 1. Parties The parties shall consist of the contestant or appellant, the candidate or officers of the independent committee which are charged with the violation or violations of this Chapter, and the City. 2. Independent Administrative Judge The Judge will have the authority to conduct the hearing and the manner of proceedings, to rule on questions of evidence and the relevancy thereof, to maintain order at the hearing, to interpret and apply these rules of procedure, and to do all other acts necessary [o provide a fair and orderly hearing. 3. Hearing Clerk The City Clerk shall be charged with taking and keeping records, and shall keep in his or her possession any exhibits or documents offered as evidence. The City Clerk shall make • the necessary arrangements for the taking of a stenographic record of the testimony whenever such record is requested by one or more parties. The requesting party shall pay the cost of such a record. 4. Attendance at Hearing The independent administrative judge shall have the power to require the exclusion of any witness or witnesses during the testimony ofother witnesses. i. Oaths Before proceeding with the testimony of any witness, the independent administrative judge shall require witnesses to testify under oath or affirm to the truth. The oath or affinnation shall be administered by the city clerk. G. Order of Proceeding A hearing shall be opened by the judge. The hearing clerk shall record in the minutes the place, time, and date of the convening of the hearing; the presence of the parties, and their respective counsel, if any. Prior to the presentation of any opening statements or the offering of any evidence, there shall be entered into the record for said hearing all exhibits, proofs of service, audit s Ordinance No. 1818 Cupertino City Council Page 9 • reports, affidavits, disclosure statements, or other evidence presented to or Fled with the City Clerk regarding the matter before the judge. At the beginning of the hearing, the judge may ask for statements clarifying the issues involved. The auditor may then present his report and findings and thereafter shall be subject to questions or other examination by the parties. The other parties may then present their claims, proofs, and witnesses, ~vho shall thereafter submit to questions or other examination by all other parties. The judge may, in his or her discretion, vary this procedure, but shall afford all parties a full and fair opportunity to present all material or relevant proofs. Exhibits, when offered, may be received in evidence and when received, shall be numbered and made part of the record of the hearing by the City Clerk. The clerk shall also record a list of names and addresses of all witnesses. Hearing in the Absence of a Party The Bearing may proceed in the absence of any party, who, aRer due notice, fails to be present. S. Evidence • a) Each party shall have these rights: to call and examine witnesses, to introduce exhibits, to cross-examine opposing witnesses on any matter relevant to the issues even though that matter was not covered in the direct examination, to impeach any witness, regardless of which party first called him or her to testify; and to rebut the evidence against him or her. If a party does not testify in his or her o~vn behalf, he or she may be called and examined as if under cross-examination, provided, however, that no witness shall be required to testify if such testimony would tend to incriminate him or her in any subsequent criminal proceeding. b) The hearing need not be conducted according to technical roles relating to evidence and witnesses. Any relevant evidence shall be admitted if it is the sort of evidence on which responsible persons are accustomed to rely in the conduct of serious affairs, regardless of the existence of any common la~v or statutory rule which might make improper the admission of such evidence over objection in civil actions. Hearsay evidence may be used for the purpose of supplementing or explaining other evidence, but shall not be sufficient in itself to support a finding unless it would be admissible over objection in civil actions. The rules of privilege shall be effective to the extent that they are otherwise required by statute to be recognized at the hearing, and irrelevant and unduly repetitious evidence shall be excluded. • Ordinance No. 1818 Cupertino City Council Page 10 • 9. Closing the Hearing The judge shalt require of all parties whether they have further proofs to offeror witnesses to be heard. Upon receiving negative replies, the judge may allow argument by counsel or a party to the proceeding regarding the evidence. After the conclusion of such argument, the hearing shall bFClosed and a minute thereof shall be recorded. The matters shalt then be taken under submission, and the judge shall thereafter announce his or her decision. This ordinance shall take effect and be in force thirty (30) days after its passage. INTRODUCED at a regular meeting of the City Council of the City of Cupertino this 19th day of April, 1999, and ENACTED at a regular meeting of the City Council of the City of Cupertino this 3rd day of May 1999, by the following vote: AYES: Chang, Dean, James, Siatton NOES: Burnett ABSENT: None ABSTAIN: None ATTEST: APPROVED: • / `i ~C't ~~t ~c , ~~-~ ~,~. City Clerk ~~' Mayor> City Cupertino 10 STATE OF CALIFORNIA ) COUNTY OF SANTA CLARA ) CITY OF CUPERTINO ) I, KIMBERLY SMITH, City Clerk and ex-officio Clerk of the City Council of the City of Cupertino, California, do hereby certify the attached to be a true and correct copy of Ordinance No. %~'~ ~ ,~' ,which was enacted on ~ r~~t-`-~ ~:> J l ~~ ~ ,and that it has been published or posted pursuant to law (G.C. 40806). IN WITNESS WHEREOF, I have hereunto set my hand and seal this 5 .~ h day of y7~~~e~ , 19 ~9 . KIMBERLY SMI'CH, City Clerk and Ex-officio Clerk of the City Council of the City of Cupertino, California ordinance cenilicaladnc •