Ordinance No. 1757
ORDINANCE NO. 1757
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY
OF CUPERTINO ADDING CHAPTER 2.06 TO THE
CUPERTINO MUNICIPAL CODE RELATED TO
CAMPAIGN FINANCE REGARDING COUNCIL
ELECTIONS
THE CITY COUNCIL OF THE CITY OF CUPERTINO HEREBY ORDAINS AS
FOLLOWS:
1.
Amendment to the Citv Ordinance Code
Chapter 2.06 is hereby added to the City's ordinance code to read as follows:
Sections:
2.06.010
2.06.020
2.06.030
2.06.040
2.06.050
2.06.060
2.06.070
2.06.080
2.06.090
2.06.1 00
2.06.110
2.06.120
2.06.130
2.06.140
2.06.150
2.06.160
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Chapter 2.06
City Council - Campaign Finance
Purposes
Statutory Authority
Definitions
Conflicts with Provisions of State Law
Constitutionality
Construction
Prohibited Acts Defined
Penalty for Violations
Remedies Cumulative
Candidate Contribution Limits
Committee Contribution Limits (Independent Expenditures)
Restrictions on when Contributions may be Accepted
Disclosure Statements
Audits, Appeals and Complaints
Hearing Proceedings
Criminal Proceedings
2.06.010 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 ordinance 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 ordinance also is intended to lessen the potentially corrupting
pressures on candidates, officeholders, and committees, for fundraising by
establishing sensible time periods for soliciting and accepting campaign
contributions.
D. This ordinance also seeks to enable each City voter to cast an informed
vote by requiring that candidates disclose all campaign contributions prior to a
City election and by encouraging committees to reveal the source of their
funding as early as possible in the election process consistent with free speech
principles contained in the Constitution of the United States and the State of
California.
2.06.020 Statutory Authoritv
Section 85706(b) of the California Government Code, adopted by the voters of
the State of California on November 6, 1996, as part of Proposition 208,
authorizes the City to impose lower contribution limitations or other campaign
disclosures or prohibitions that are as, or more, stringent than set forth under
the applicable provisions of state law.
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
construed according to the context and approved usage of the language.
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2.06.040 Conflicts with Provisions of State Law
Where conflict occurs between any provision established by this Chapter and
any provision of applicable state law, the more restrictive or stringent of any
such provision shall apply.
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 anyone or more sections,
subsections, sentences, clauses or phrases had been declared invalid or
unconstitutional.
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.
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.
2.06.080 Penaltv for Violations
Any person who 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.
2.06.090 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.
2.06.100 Candidate 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 ($100) for
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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 Councilor 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 ($200) 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 contribution 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, but shall apply to contributions from a spouse.
2.06.110 Committee Contribution Limits (Independent Expenditures)
a) Notwithstanding the provisions of Section 2.06.100 and except as
provided hereinafter, any committee making independent expenditures of
$1,000 or more shall not accept from any person any contribution in excess of
$250 for each election in which the committee is participating.
b) Notwithstanding the provisions of subsection a) above, any committee
making independent expenditures of$I,OOO or more shall not accept from any
person any contribution of one hundred dollars ($100) or more during the
period fourteen days prior to said election through fourteen days after said
election.
2.06.120 Restrictions on When Contributions mav be Accepted
a) No candidate or committee may accept contributions more than six
months prior to the election for which the contributions are to be utilized.
b) No candidate may accept contributions later than fourteen days prior to
the election. In the event that a candidate incurs more debt in his or her
campaign than can be paid by contributions, the candidate must retire the debt
from his or her own personal funds prior to January 30 of the year following
the election. Failure to retire said debt by that date constitutes a violation of
this Chapter.
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c) No committee making independent expenditures of$I,OOO or more
may accept contributions later than fourteen days after the election. Any debt
incurred by such committee which is not retired from campaign contributions
prior to January 31 of the year following the election constitutes a violation of
iliis Chapter.
d) This section shall not apply to any funds raised for the purposes
described in Section 85305(d)ofthe California Government Code (related to
attorney's fees, cost of recounts, and other costs described in Section 85305( d).
2.06.130 Disclosure Statements
A. Forty days prior to a city council election, all candidates and
committees shall file with the City Clerk initial disclosure statements
disclosing the name, address, employer, and contribution amount of all persons
making contributions exceeding $50. Contributions requiring disclosure
include "in kind" contributions of a fair market value of $50 or more. In
addition, committees making independent expenditures of $1 ,000 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 I of the even
numbered year prior to the election through 45 days prior to the election.
B. Twelve days prior to a city election, a second disclosure statement must
be filed with the City Clerk by candidates and committees containing the same
information as in the initial filing for the period of time since the initial filing.
The filing period for the second disclosure is 44 days prior through 14 days
prior to the election.
C. Sixteen days after a city election, committees making independent
expenditures of $1,000 or more shall file a third disclosure statement. The
filing period for the third disclosure is 13 days prior to the election through 14
days after the election.
D. On January 31 of the year following a city election, all candidates and
committees shall file final disclosure statements with the City Clerk. The
filing period for the final disclosure is from the date of the last reporting period
through January 30 of the year following the election.
E. 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.
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2.06.140 Audits. Appeals and Complaints
a) The City Clerk shall engage the seryices of an independent auditor who
shall review, in detail, all campaign disclosure statements.
b) Within five days after the initial disclosure statements proscribed by
Section 2.06.130(A) are 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
5 days of the public release of the auditor's report regarding initial disclosure
statements.
d) Within 5 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 5 days after the completion of the hearing, the judge shall
issue a written decision which will be made available to the public.
e) Within three days after the second disclosure period as described in
Section 2.06.130(B) has elapsed (9 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 occurred since the first reporting period. The clerk
shall disseminate the report to the public forthwith.
f) Any person, including a candidate, wishing to contest the auditor's report
regarding any second disclosure statement or wishing to file a separate complaint
against a candidate or independent 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 24 hours of
the public release of the auditor's report regarding the second disclosure. Within
48 hours of the filing of any such contest or complaint (6 days prior to the
election), a hearing 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.
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g) The amendment of any disclosure statement which is the subject of a
violation determination made by the auditor must be filed within 48 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 24 hours of said filing
and/or 24 hours prior to any hearing, as the 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.
i) With respect to any disclosure statement required by this Chapter to be
filed after an election, the audit and appeal procedure described in Section
2.06.140(b) (c) and (d) shall be followed.
2.06.150 Hearin¡¡ 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.
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)
above, 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 said determination or finding.
e) At the conclusion of the hearing, the Judge may, in his or her
discretion, order any party to reimburse the City for any costs associated with
the hearing, including audit costs.
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2.06.160 Criminal Proceedin¡¡s
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 Clara
County Superior Court.
Section 2
Effective Date
This ordinance shall take effect thirty (30) days after final adoption.
Section 3
Publication Clause
The City Clerk shall cause this ordinance to be published at least once in a newspaper of
general circulation published and circulated in the City within 15 days after its adoption, in
accordance with Govemment Code Section 36933, shall certifY to the adoption of this ordinance
and shall cause this ordinance and her certification, together with proof of publication, to be
entered in the Cupertino Municipal Code.
INTRODUCED at a regular meeting of the City Council of the City of Cupertino this 5th
day of May, 1997, and ENACTED at a regular meeting of the City Council of the City of
Cupertino this 19th day of May, 1997, by the following vote:
Y!lli:
Members of the City Council
AYES:
NOES:
ABSENT:
ABSTAIN:
Dean, Sorensen, Bautista
Burnett, Chang
None
None
ATTj:
~~ú
ity Clerk
APPROVED:
t --fc~J/~
Appendix A
Rules of Procedure for Conducting Hearing
I.
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
to provide a fair and orderly hearing.
3.
Hearin¡¡ 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 of other witnesses.
5.
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
affirmation shall be administered by the city clerk.
6.
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
reports, affidavits, disclosure statements, or other evidence presented to or filed with the City
Clerk regarding the matter before the judge.
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At the beginning of the hearing, the judge !!ill.Y 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, who 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.
7. Hearinl! in the Absence of a PartY
The hearing may proceed in the absence of any party, who, after due notice, fails to be
present.
8.
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 own 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 rules 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 law 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.
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9.
Closin¡¡ the Hearing
The judge shall require of all parties whether they have further proofs to offer or
witnesses to be heard. Upon receiving negative replies, the judge !lli!Y allow argument by
counselor a party to ilie proceeding regarding the evidence.
After the conclusion of such argument, the hearing shall be closed and a minute
thereof shall be recorded. The matters shall then be taken under submission, and the judge
shall thereafter announce his or her decision.
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