S752

SENATE, No. 752

STATE OF NEW JERSEY

INTRODUCED FEBRUARY 15, 1996

By Senators MacINNES, CASEY, Codey, Adler, Lipman, Lynch, Lesniak, Rice, Baer, O'Connor, Kenny, Bryant, McGreevey, McNamara and Schluter

An Act concerning the Election Law Enforcement Commission, amending P.L.1973, c.83, P.L.1974, c.26 and P.L.1981, c.129, supplementing Title 52 of the Revised Statutes, and making an appropriation.

Be It Enacted by the Senate and General Assembly of the State of New Jersey:

1. (New section) The Legislature finds and declares:

a. Fostering public trust in State government and in the electoral process that enables the public to select the leaders of that government is in the forefront of the public's interest.

b. Public trust is strengthened by providing complete and timely access to those public documents that relate to the electoral process in this State.

c. The Election Law Enforcement Commission (ELEC) serves as the repository and monitor of such documents and it is in the public's interest that access to campaign finance reports filed by candidates and their contributors be available for public inspection in a timely manner and in detail.

d. Under ELEC's current system campaign finance reports are generally not available in a timely manner, for the lag between the filing of the reports and their accessibility to the public is often at least a week.

e. Public trust in the electoral process and the public trust in general would thus be well served by establishing a dedicated source of funding to purchase or otherwise acquire such technology and to hire such additional staff as may be necessary to enable ELEC to provide the public with timely access to the campaign finance reports it receives.

2. Section 6 of P.L.1973, c.83 (C.19:44A-6) is amended to read as follows:

6. a. The commission shall appoint a full-time executive director, legal counsel and hearing officers, all of whom shall serve at the pleasure of the commission and shall not have tenure by reason of the provisions of chapter 16 of Title 38 of the Revised Statutes. The commission shall also appoint such other employees as are necessary to carry out the purposes of this act, which employees shall be in the [classified] career service of the civil service and shall be appointed in accordance with and shall be subject to the provisions of Title [11] 11A, Civil Service.

b. It shall be the duty of the commission to enforce the provisions of this act, to conduct hearings with regard to possible violations and to impose penalties; and for the effectual carrying out of its enforcement responsibilities the commission shall have the authority to initiate a civil action in any court of competent jurisdiction for the purpose of enforcing compliance with the provisions of this act or enjoining violations thereof or recovering any penalty prescribed by this act. The commission shall promulgate such regulations and official forms and perform such duties as are necessary to implement the provisions of this act. Without limiting the generality of the foregoing, the commission is authorized and empowered to:

(1) Develop forms for the making of the required reports;

(2) Prepare and publish a manual for all candidates, political committees and continuing political committees, prescribing the requirements of the law, including uniform methods of bookkeeping and reporting and requirements as to the length of time that any person required to keep any records pursuant to the provisions of this act shall retain such records, or any class or category thereof, or any other documents, including canceled checks, deposit slips, invoices and other similar documents, necessary for the compilation of such records;

(3) Develop a filing, coding and cross-indexing system;

(4) Permit copying or photo-copying of any report required to be submitted pursuant to this act as requested by any person;

(5) Prepare and make available for public inspection summaries of all said reports grouped according to candidates, parties and issues, containing the total receipts and expenditures, and the date, name, address and amount contributed by each contributor;

(6) Prepare and publish, prior to May 1 of each year, an annual report to the Legislature;

(7) Ascertain whether candidates, committees, organizations or others have failed to file reports or have filed defective reports; extend, for good cause shown, the dates upon which reports are required to be filed; give notice to delinquents to correct or explain defects; and make available for public inspection a list of such delinquents;

(8) Ascertain the total expenditures for candidates and determine whether they have exceeded the limits set forth in this act; notify candidates, committees or others if they have exceeded or are about to exceed the limits imposed;

(9) Hold public hearings, investigate allegations of any violations of this act, and issue subpenas for the production of documents and the attendance of witnesses;

(10) Forward to the Attorney General or to the appropriate county prosecutor information concerning any violations of this act which may become the subject of criminal prosecution or which may warrant the institution of other legal proceedings by the Attorney General;

(11) Use the moneys disbursed from the Public Access Enhancement Fund, established pursuant to section 6 of P.L. , c. (C. )(now pending before the Legislature as this bill), to purchase or otherwise acquire such technology and to hire such additional staff as may be necessary to enable the commission to provide the public with timely access to the campaign finance reports it receives.

c. The commission shall take such steps as may be necessary or appropriate to furnish timely and adequate information, in appropriate printed summaries and in such other form as it may see fit, to every candidate or prospective candidate for public office who becomes or is likely to become subject to the provisions of this act, and to every treasurer and depository duly designated under the provisions of this act, informing them of their actual or prospective obligations and responsibilities under this act. Such steps shall include, but not be limited to, furnishing to every person on whose behalf petitions of nomination are filed for any public office a copy of such printed summary as aforesaid, which shall be furnished to such person by the commission through the public official charged with the responsibility of receiving and accepting such petitions of nomination, at the time when such petitions are filed. The commission shall also make available copies of such printed summary to any other person requesting the same. The commission shall also take such steps as it may deem necessary or effectual to disseminate among the general public such information as may serve to guide all persons who may become subject to the provisions of this act by reason of their participation in election campaigns or in the dissemination of political information, for the purpose of facilitating voluntary compliance with the provisions and purposes of this act. In the dissemination of such information, the commission shall to the greatest extent practicable enlist the cooperation of commercial purveyors, within and without the State, of materials and services commonly used for political campaign purposes.

d. If the nomination for or election to any public office or party position becomes void under the terms of subsection c. of section 21 of this act, the withholding or revocation of his certificate of election, the omission of his name from the ballot or the vacation of the office into which he has been inducted as a result of such void election, as the case may be, shall be subject to the provisions of chapter 3, articles 2 and 3, of this Title (R.S. 19:3-7 et seq.).

e. The commission shall be assigned suitable quarters for the performance of its duties hereunder.

f. The commission through its legal counsel is authorized to render advisory opinions as to whether a given set of facts and circumstances would constitute a violation of any of the provisions of this act, or whether a given set of facts and circumstances would render any person subject to any of the reporting requirements of this act.

Unless an extension of time is consented to by any person requesting an advisory opinion, the commission shall render its advisory opinion within 10 days of receipt of the request therefor. Failure of the commission to reply to a request for an advisory opinion within the time so fixed or agreed to shall preclude it from instituting proceedings for imposition of a penalty upon any person for a violation of this act arising out of the particular facts and circumstances set forth in such request, except as such facts and circumstances may give rise to a violation when taken in conjunction with other facts and circumstances not set forth in such request.

(cf: P.L.1983, c.579, s.10)

3. Section 22 of P.L.1973, c. 83 (C.19:44A-22) is amended to read as follows:

22. a. (1) Except as provided in subsection e. or f., any person, including any candidate, treasurer, candidate committee or joint candidates committee, political committee, continuing political committee, political party committee or legislative leadership committee, charged with the responsibility under the terms of this act for the preparation, certification, filing or retention of any reports, records, notices or other documents, who fails, neglects or omits to prepare, certify, file or retain any such report, record, notice or document at the time or during the time period, as the case may be, and in the manner prescribed by law, or who omits or incorrectly states or certifies any of the information required by law to be included in such report, record, notice or document, any person who proposes to undertake or undertakes a public solicitation, testimonial affair or other activity relating to contributions or expenditures in any way regulated by the provisions of this act who fails to comply with those regulatory provisions, and any other person who in any way violates any of the provisions of this act shall, in addition to any other penalty provided by law, be liable to a penalty of not more than $3,000.00 for the first offense and not more than $6,000.00 for the second and each subsequent offense.

(2) No person shall willfully and intentionally agree with another person to make a contribution to a candidate, candidate committee, joint candidates committee, political committee, continuing political committee, political party committee, or legislative leadership committee with the intent, or upon the condition, understanding or belief, that the recipient candidate or committee shall make or have made a contribution to another such candidate or committee, but this paragraph shall not be construed to prohibit a county or municipal committee of a political party from making a contribution or contributions to any candidate, candidate committee, joint candidates committee, political committee, continuing political committee, political party committee, or legislative leadership committee. A finding of a violation of this paragraph shall be made only upon clear and convincing evidence. A person who violates the provisions of this paragraph shall be liable to a penalty equal to three times the amount of the contribution which that person agreed to make to the recipient candidate or committee.

b. Upon receiving evidence of any violation of this section, the Election Law Enforcement Commission shall have power to hold, or to cause to be held under the provisions of subsection d. of this section, hearings upon such violation and, upon finding any person to have committed such a violation, to assess such penalty, within the limits prescribed in subsection a. or subsection e. of this section, as it deems proper under the circumstances, which penalty shall be paid forthwith into the State Treasury [for the general purposes of the State] and credited to the Public Access Enhancement Fund, established pursuant to section 6 of P.L. , c. (C. )(now pending before the Legislature as this bill).

c. In assessing any penalty under this section, the Election Law Enforcement Commission may provide for the remission of all or any part of such penalty conditioned upon the prompt correction of any failure, neglect, error or omission constituting the violation for which said penalty was assessed.

d. The commission may designate a hearing officer to hear complaints of violations of this act. Such hearing officer shall take testimony, compile a record and make factual findings, and shall submit the same to the commission, which shall have power to assess penalties within the limits and under the conditions prescribed in subsections b. and c. of this section. The commission shall review the record and findings of the hearing officer, but it may also seek such additional testimony as it deems necessary. The commission's determination shall be by majority vote of the entire authorized membership thereof.

e. Any person who willfully and intentionally makes or accepts any contribution in violation of section 4 of P.L.1974, c.26 (C.19:44A-29) or section 18, 19 or 20 of P.L.1993, c.65 (C.19:44A-11.3, C.19:44A-11.4 or C.19:44A-11.5), shall be liable to a penalty of:

(1) Not more than $5,000.00 if the cumulative total amount of those contributions is less than or equal to $5,000.00;

(2) Not more than $75,000.00 if the cumulative total amount of those contributions was more than $5,000.00 but less than $75,000; and

(3) Not more than $100,000.00 if the cumulative total amount of those contributions is equal to or more than $75,000.00.

f. In addition to any penalty imposed pursuant to subsection e. of this section, a person holding any elective public office shall forfeit that public office if the Election Law Enforcement Commission determines that the cumulative total amount of the illegal contributions was more than $50,000.00 and that the violation had a significant impact on the outcome of the election.

g. Any penalty prescribed in this section shall be enforced in a summary proceeding under "the penalty enforcement law," N.J.S.2A:58-1 et seq.

(cf: P.L.1993, c.65, s.13)

4. Section 16 of P.L.1974, c.26 (C.19:44A-41) is amended to read as follows:

16. a. Any person who willfully and knowingly violates sections 4, 6, 9, 10 or 19 of this act shall in addition to any other penalty provided by law, be liable to a penalty of not more than $1,000.00 for the first offense and not more than $2,000.00 for the second and each subsequent offense.

b. Upon receiving evidence of any violation of sections 4, 6, 9, 10 or 19 of this act, the Election Law Enforcement Commission shall have power to hold, or to cause to be held under the provisions of subsection d. of this section, hearings upon such violation and, upon finding any person to have committed such a violation, to assess such penalty, within the limits prescribed in subsection a. of this section, as it deems proper under the circumstances, which penalty shall be paid forthwith into the State Treasury [for the general purposes of the State] and credited to the Public Access Enhancement Fund, established pursuant to section 6 of P.L. , c. (C. )(now pending before the Legislature as this bill). Such penalty shall be enforceable in a summary proceeding under the "Penalty Enforcement Law" (N.J.S.2A:58-1 et seq.).

d. The commission may designate a hearing officer to hear complaints of violations of this act. Such hearing officer shall take testimony, compile a record and make factual findings, and shall submit the same to the commission, which shall have power to assess penalties within the limits and under the conditions prescribed in subsection b. of this section. The commission shall review the record and findings of the hearing officer, but it may also seek such additional testimony as it deems necessary. The commission's determination shall be by majority vote of the entire authorized membership thereof.

(cf: P.L.1974, c.26, s.16)

5. Section 8 of P.L.1981, c.129 (C.19:44B-8) is amended to read as follows:

8. a. Any candidate charged with the responsibility under the terms of this act for the filing of any reports or other documents required to be filed pursuant to this act who fails, neglects or omits to file any such report or document at the time and in the manner prescribed by law, or who omits or incorrectly states any of the information required by law to be included in such report or document, shall, in addition to any other penalty provided by law, be liable to a penalty of not more than $1,000.00 for the first offense and not more than $2,000.00 for the second and each subsequent offense.

b. Upon receiving evidence of any violation of this section, the Election Law Enforcement Commission shall have power to hold, or to cause to be held, hearings upon such violation and, upon finding any person to have committed such a violation, to assess such penalty, within the limits prescribed in subsection a. of this section, as it deems proper under the circumstance which penalty shall be paid forthwith into the State Treasury [for the general purposes of the State] and credited to the Public Access Enhancement Fund, established pursuant to section 6 of P.L. , c. (C. )(now pending before the Legislature as this bill). Such penalty shall be enforceable in a summary proceeding under the "Penalty Enforcement Law" (N.J.S.2A:58-1 et seq.).

c. In assessing any penalty under this section, the Election Law Enforcement Commission may provide for the remission of all or any part of the penalty conditioned upon the prompt correction of any failure, neglect, error or omission constituting the violation for which the penalty was assessed, provided the correction is made on a date prior to the election for which the candidate has filed a declaration of candidacy or petition to appear on the ballot.

(cf: P.L.1981, c.129, s.8)

6. (New section) a. There is created in the Department of the Treasury a revolving, nonlapsing fund to be known as the Public Access Enhancement Fund. The fund shall be credited with all penalties collected by the State Treasury pursuant to section 22 of P.L.1973, c.83 (C.19:44A-22), section 41 of P.L.1974, c.26 (C.19:44A-41) and section 8 of P.L.1981, c.129 (C.19:44B-8). The commission shall also deposit into the fund all fees collected annually from providing photocopies and computer printouts and any moneys as may hereafter be donated by members of the public or appropriated to the fund by law.

b. The moneys in the fund shall be disbursed to the commission upon approval of the Director of the Office of Management and Budget in the Department of Treasury and the Joint Budget Oversight Committee or its successor.

c. All moneys held in the fund and not disbursed shall be administered by the State Treasurer and may be invested or reinvested, at the discretion thereof, in legal obligations of this State or of the United States. Any income or interest earned by, or increment to, moneys so invested or reinvested shall be added to the moneys held in the fund.

7. (New section) The Election Law Enforcement Commission shall enter into a contract for a study of the ways and means necessary to enable: a. campaign finance reports to be available to the public no later than 48 hours after filing; b. computerized summaries to be available (1) with respect to an election for member of the Legislature, for a county office, or for a municipal office in the 25 most populous municipalities, no later than 60 days after such an election, and (2) with respect to the State committee of a political party, a legislative leadership committee, a county committee of a political party, and the municipal committee of a political party in the 25 most populous municipalities, no later than 60 days after the filing of each quarterly report by each such committee; and c. electronic access to be available through the State Library network and an Internet web site. No later than 180 days after the effective date of this act, the commission shall report to the Legislature and the Governor on the findings and recommendations of the study and on the commission's plan to implement those recommendations.

8. (New section) The Election Law Enforcement Commission shall, within 90 days after the effective date of P.L. , c. (C. ) (now pending before the Legislature as this bill), develop and make available computer software that permits any filing entity to file reports with the commission by electronic means.

9. (New section) There is appropriated to the Election Law Enforcement Commission from the Productive and Efficiency Program in the Department of the Treasury such sum as may be necessary to conduct the study required pursuant to section 7 of this act.

10. This act shall take effect immediately.

STATEMENT

This bill establishes the Public Access Enhancement Fund for the Election Law Enforcement Commission (ELEC). Its purpose is to provide ELEC with a dedicated source of money to purchase or acquire such technology and to hire such additional staff as may be necessary to enable the commission to provide the public with timely access to the campaign finance reports it receives. The current system is not working, for those reports are not generally available in a timely manner.

Specifically, the bill provides that the fund shall be revolving and nonlapsing and shall be credited with all penalties collected by the State Treasury from any person, committee, corporation or labor organization found to be in violation of the "New Jersey Campaign Contributions and Expenditures Reporting Act" (P.L.1973, c.83; C.19:44A-1 et seq.), the gubernatorial public financing statutes (P.L.1974, c.26; C.19:44A-27 et seq.) or the statutes requiring financial disclosure by every candidate for the office of Governor and every candidate for the office of member of the Legislature (P.L.1981, c.129; C.19:44B-1 et seq.). All fees collected by ELEC for providing photocopies and computer printouts would also be deposited into the fund.

Under the bill, the moneys in the fund would be disbursed to the commission upon approval of the Director of the Office of Management and Budget in the Department of Treasury and the Joint Budget Oversight Committee or its successor.

The bill also provides for ELEC to enter into a contract for a study of the ways and means necessary to enable (1) campaign finance reports to be available to the public no later than 48 hours after filing; (2) computerized summaries to be available (a) with respect to an election for member of the Legislature, for a county office, or for a municipal office in the 25 most populous municipalities, no later than 60 days after such an election, and (b) with respect to the State committee of a political party, a legislative leadership committee, a county committee of a political party, and the municipal committee of a political party in the 25 most populous municipalities, election, no later than 60 days after the filing of each quarterly report by each such committee; and (3) electronic access to be available through the State Library network and an Internet web site. No later than 180 days after the effective date of this act, ELEC shall report to the Legislature and the Governor on the findings and recommendations of the study and on the commission's plan to implement those recommendations.

Finally, the bill includes a provision that requires the commission to develop and make available computer software that permits any filing entity to file reports with the commission by electronic means.

Establishes Public Access Enhancement Fund for ELEC; appropriates such sum as necessary to conduct study to enhance public access.