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Oregon Bulletin

February 1, 2012

 

Secretary of State,
Elections Division
Chapter 165

Rule Caption: Amending Rules Regarding Contested Case Hearings.

Adm. Order No.: ELECT 1-2012

Filed with Sec. of State: 1-3-2012

Certified to be Effective: 1-3-12

Notice Publication Date: 12-1-2011

Rules Amended: 165-001-0015, 165-001-0016, 165-001-0025, 165-001-0034

Subject: OAR 165-001-0015 is proposed for amendment to update the method by which a person subject to a penalty under ORS 260.232 or ORS 260.995 will be notified of that penalty and to require that the notification include notice that a political committee may be represented by any officer identified in the most recent statement of organization filed with the filing officer.

      OAR 165-001-0016 is proposed for amendment to require an individual requesting a contested case hearing in person or by telephone to submit to the Secretary of State Elections Division a signed Hearing Request Form. Additionally the rule is proposed for amendment to provide that if a person fails to indicate their preference for the type of hearing to be conducted, the hearing will be held by telephone.

      OAR 165-001-0025 is proposed for amendment to clarify the deadline to request a hearing.

      OAR 165-001-0034 is proposed for amendment to incorporate references to a Hearing Request Form when an individual is submitting notarized testimony in lieu of a contested case hearing.

Rules Coordinator: Brenda Bayes—(503) 986-1518

165-001-0015

Notice of Opportunity for Hearing

When the Secretary of State proposes to impose a civil penalty or find a violation of an election law, or both, under ORS 260.232 or 260.995, the Secretary of State shall cause a notice to be served on the person(s) subject to the penalty. For a violation under ORS 260.232 the notice shall be served by first class mail; for a violation under ORS 260.995 the notice shall be served by certified mail The notice shall include:

(1) A statement of the person’s right to a hearing before an Administrative Law Judge with the Office of Administrative Hearings.

(2) A statement that if the person desires a hearing, the agency must be notified within the number of days provided by statute from the date of receiving the notice.

(3) A statement of the authority and jurisdiction under which the hearing is to be held.

(4) A reference to the particular sections of the statutes and rules involved.

(5) A short and plain statement of the matters asserted or charged as a violation.

(6) A statement of the amount of penalty that may be imposed.

(7) A statement that the person may be represented by counsel at the hearing.

(8) If the person is an agency, corporation or an unincorporated association, that such person must be represented by an attorney licensed in Oregon.

(9) If the person is a political committee subject to a civil penalty under ORS 260.995, that person may be represented by any officer identified in the most recent statement of organization filed with the filing officer. “Officer” means any person identified as a director on the most recent statement of organization for a political committee.

(10) A statement that the record of the proceeding to date, including the agency file or files on the subject of the contested case, automatically become part of the contested case record upon default for the purpose of proving a prima facie case.

(11) A statement that the person against whom a penalty may be assessed need not appear in person at a hearing held under ORS 260.232 or 260.995, but instead may submit written testimony and other evidence, sworn to before a notary public, to the Secretary of State for entry in the hearing record. Such documents must be received by the Secretary of State not later than three business days prior to the hearing as provided by ORS 260.232(6) and 260.995(5).

(12) A statement that unless precluded by law, informal disposition may be made of any contested case by stipulation, agreed settlement, consent order or default.

Stat. Auth.: ORS 183.090, 183.470 & 246.150

Stats. Implemented: ORS 183.341, 183.470, 260.232 & 260.995

Hist.: ELECT 15-1988(Temp), f. & cert. ef. 1-27-88; ELECT 26-1988, f. & cert. ef. 8-1-88; ELECT 27-1993, f. & cert. ef. 7-1-93; ELECT 9-1999, f. & cert. ef. 9-29-99; ELECT 7-2003, f. & cert. ef. 9-3-03; ELECT 19-2009, f. & cert. ef. 12-31-09; ELECT 7-2011, f. & cert. ef. 4-8-11; ELECT 10-2011, f. & cert. ef. 7-12-11; ELECT 1-2012, f. & cert. ef. 1-3-12

165-001-0016

Requesting a Hearing

(1) If a party wishes to request an in-person or telephone hearing to contest the allegations in the charging document, they must submit to the Agency a signed Hearing Request Form and an “answer,” to the allegations in the charging document not later than the deadline to request a hearing stated in the charging document.

(a) The answer must include an admission or denial of each factual matter alleged in the charging document and a statement of each relevant defense to the allegations, including any relevant mitigating circumstance that may apply and indicate specifically what facts or transactions the mitigating circumstance applies to.

(b) A general denial is not sufficient to constitute an answer.

(c) The person must choose whether they want the hearing by telephone or in-person. If no choice is indicated on the form, the hearing will be held by telephone.

(d) Any evidence of a mitigating circumstance or other relevant evidence may be submitted with the answer as exhibits.

(2) An answer not including the information required by this rule may be disregarded and a notice of default may be issued in accordance with OAR 165-001-0025 as if no answer had been filed.

(3) Except for good cause shown to the administrative law judge, factual matters alleged in the charging document and not denied in the answer will be deemed admitted by the party.

(4) The failure of the party to raise a mitigating circumstance in the answer is a waiver of such mitigating circumstance.

(5) The party bears the burden of proof to show that all or part of the penalty should be mitigated based on a mitigating circumstance.

(6) Any new facts or defenses alleged in the answer will be deemed denied by the Agency.

(7) Evidence will not be taken at the contested case hearing on any factual or legal issue not raised in the charging document or the answer as filed.

(8) The Secretary of State hereby adopts by reference and designates the SEL 853 as the Hearing Request Form to be used to request an in-person or telephone hearing to contest campaign finance violations.

(9) The Secretary of State hereby adopts by reference and designates the SEL 852 as the Hearing Request Form to be used to request an in-person or telephone hearing to contest non-campaign finance violations.

Stat. Auth.: ORS 246.150

Stats. Implemented: ORS 260.232 & 260.995

Hist.: ELECT 7-2011, f. & cert. ef. 4-8-11; ELECT 1-2012, f. & cert. ef. 1-3-12

165-001-0025

Orders When No Hearing Requested or Failure to Appear

(1) When a party has been given an opportunity to request a hearing and fails to request a hearing in writing within the specified time, or having requested a hearing fails to appear at the specified time and place, the agency shall, subject to section (2) of this rule, enter an order by default which supports the agency action.

(2) The time provided by statute to request a hearing under ORS 260.995 is calculated from the delivery date indicated on the certified letter’s postal confirmation. If the certified letter is refused or left unclaimed at the post office, the time shall be calculated from the date the post office indicates it has given first notice of a certified letter. If the certified card is not returned to the Secretary of State by the United States Postal Service (USPS), the Secretary shall use the date recorded on the official USPS website utilizing the Track and Confirm delivery service.

(3) The time provided by statute to request a hearing under ORS 260.232 is 20 calendar days after the service date on the charging document.

(2) An order adverse to a party may be issued on default only if the agency record demonstrates a prima facie case justifying the order. The Administrative Law Judge will declare a party to be in default if the party which requested the hearing does not appear within 15 minutes of the time set for the hearing, unless the party gives notice of a reason for the inability to appear at the designated time and requests and receives a continuance. A continuance shall be granted only if the reason for the inability to appear is beyond the reasonable control of the party.

(3) The prima facie record upon default may be made at a scheduled hearing on the matter, or, if the notice of intended action states that the order will be issued or become effective upon the failure of the party to timely request a hearing, when the order is issued.

(4) The record may consist of oral (transcribed, recorded, or reported) or written evidence or a combination of oral and written evidence. When the record is made at the time the notice or order is issued, the agency file may be designated as the record. In all cases, the record must contain substantial evidence to support the findings of fact.

(5) When the Administrative Law Judge has set a specified time and place for a hearing and the party subsequently notifies the agency or the Administrative Law Judge assigned to the case that the party will not appear at such specified time and place, the agency may cancel the hearing and follow the procedure described in subsections (2), (3) and (4) of this rule.

(6) When a party requests a hearing after the time specified by the agency, but before entry of a final order by default, or, if a final order by default is entered, on or before 30 calendar days after entry of the order, the agency may accept the late request only if the cause for failure to timely request the hearing was beyond the reasonable control of the party. In determining whether to accept a late hearing request, the agency may require the request to be supported by an affidavit and may conduct such further inquiry, including holding a hearing, that it deems appropriate. The agency shall enter an order granting or denying the request.

(7) When a party requests a hearing after entry of a default order, the party must file the request within a reasonable time. If the request is received more than 30 days after the agency mailed the default order to the party or the party’s attorney (based on the service date of the order), it is presumed that the request is not timely. The request shall state why the party should be relieved of the default order. If the request is allowed by the agency, it shall enter an order granting the request and schedule the hearing in due course. If the request is denied, the agency shall enter an order setting forth its reasons for the denial.

(8) The agency shall notify a defaulting party of the entry of a default order by mailing a copy of the order as required by ORS 183.470.

(9) Notwithstanding the provisions of this rule relating to late requests for a hearing, no hearing may be held if the timing of the request would cause the agency to miss the statutory deadlines established for the conduct of hearings in ORS 260.232(4) or 260.995(6).

Stat. Auth.: ORS 183.090, 183.470, 246.150, 260.232 & 260.995

Stats. Implemented: ORS 183.470, 260.232 & 260.995

Hist.: ELECT 15-1988(Temp), f. & cert. ef. 1-27-88; ELECT 26-1988, f. & cert. ef. 8-1-88; ELECT 27-1993, f. & cert. ef. 7-1-93; ELECT 15-1994, f. & cert. ef. 7-26-94; ELECT 7-2003, f. & cert. ef. 9-3-03; ELECT 19-2009, f. & cert. ef. 12-31-09; ELECT 1-2012, f. & cert. ef. 1-3-12

165-001-0034

Notarized Testimony in lieu of Hearing

(1) If a party wishes to contest the allegations in the charging document, but does not wish to request an in person or telephone hearing, the party may submit notarized testimony in lieu of a hearing.

(2) The notarized testimony must be filed with the Agency not later than the deadline to request a hearing stated in the charging document.

(3) The notarized testimony must:

(a) Include an admission or denial of each factual matter alleged in the charging document and a statement of each relevant defense to the allegations, including any relevant mitigating circumstance. A general denial is not sufficient. Notarized testimony not including the information required by this rule may be disregarded and a notice of default may be issued in accordance with OAR 165-001-0025 as if no notarized testimony had been filed.

(b) Include a signed and completed Hearing Request Form.

(c) Be notarized by a commissioned Notary Public.

(4) After the party submits notarized testimony, the Agency may submit notarized testimony and any exhibits to the Office of Administrative Hearings and to the individual who submitted notarized testimony. If the Agency submits notarized testimony, it will be transmitted via e-mail to the Office of Administrative Hearings and the party. The Agency may mail its notarized testimony to the party’s last known address if the party’s e-mail address is unknown or the e-mail is returned as undeliverable.

(5) The party may, but is not required to, respond to the Agency testimony by submitting rebuttal notarized testimony.

(a) Rebuttal notarized testimony is limited to issues raised in the original notarized testimony and the Agency’s testimony.

(b) Rebuttal notarized testimony must be notarized by a commissioned Notary Public.

(c) The rebuttal notarized testimony must be received by the Agency not later than five business days from the date of service of the Agency’s testimony (the date the testimony was e-mailed or mailed).

(d) The notarized testimony hearing record is deemed closed the day after the deadline for the person to submit rebuttal testimony.

(6) If a person submits notarized testimony in lieu of requesting an in person or telephone hearing, the person is waiving their right to an in person or telephone hearing.

Stat. Auth.: ORS 246.150

Stats. Implemented: ORS 260.232 & 260.995

Hist.: ELECT 7-2011, f. & cert. ef. 4-8-11; ELECT 1-2012, f. & cert. ef. 1-3-12

 

Rule Caption: Amendment of Secret Ballot Waiver Form and Process to Allow for Receipt by Email.

Adm. Order No.: ELECT 2-2012

Filed with Sec. of State: 1-3-2012

Certified to be Effective: 1-3-12

Notice Publication Date: 12-1-2011

Rules Amended: 165-007-0300

Subject: This rule is proposed for amendment to incorporate changes made by the 2011 Legislative Assembly that allow a long term absent elector who is serving in or has been discharged for not more than 30 days from the Armed Forces or the Merchant Marine to use to waive their right to a secret ballot when casting a ballot using electronic mail.

Rules Coordinator: Brenda Bayes—(503) 986-1518

165-007-0300

Facsimile Vote Secret Ballot Waiver Form

(1) The Secretary of State designates form SEL 531, Email or Facsimile Vote Secret Ballot Waiver Form, as the form to be used by a long term absent elector who is serving in or has been discharged for not more than 30 days from the Armed Forces or the Merchant Marine when casting a ballot using electronic mail or a facsimile machine.

(2) The ballot will not be counted unless the completed SEL 531 is received in the office of the county clerk not later than 8 pm on the day of the election, accompanied by a return identification envelope, transmitted by electronic mail or facsimile, containing the signature of the elector and the signature is matched against the signature on the elector’s most current voter registration card.

(3) County clerks shall incorporate into their Security Plan, required to be filed with the Secretary of State not later than January 31st of every year, methods for ensuring the secrecy of ballots cast using electronic mail or a facsimile machine to the greatest extent possible. Acceptable methods include but are not limited to:

(a) Using a separate dedicated electronic mailbox or facsimile machine with limited staff access;

(b) Assigning a dedicated employee to monitor the electronic mailbox or facsimile machine; or

(c) Adjusting the facsimile machine settings to store items until a set time, rather than automatically printing.

Stat. Auth.: ORS 246.150

Stats. Implemented: OL 2009 Ch. 619 (HB 2511)

Hist.: ELECT 18-2009, f. & cert. ef. 12-4-09; ELECT 2-2012, f. & cert. ef. 1-3-12

 

Rule Caption: Repeal of Rule Regarding Multiple Political Party Designations on General Election Ballot.

Adm. Order No.: ELECT 3-2012

Filed with Sec. of State: 1-3-2012

Certified to be Effective: 1-3-12

Notice Publication Date: 12-1-2011

Rules Repealed: 165-007-0320

Subject: This rule is being repealed because some of the specific circumstances that led to the rule’s adoption have changed. Changes in voting systems have occurred in some counties in the state. Additionally, questions remain as to whether any county will be able to strictly comply with the cross-nomination law as written. The Secretary of State will be seeking legislative changes to the cross-nomination law during the 2012 legislative session.

Rules Coordinator: Brenda Bayes—(503) 986-1518

 

Rule Caption: Updating Candidate and Minor Party Manuals and Procedures for Filling a Legislative Vacancy.

Adm. Order No.: ELECT 4-2012

Filed with Sec. of State: 1-3-2012

Certified to be Effective: 1-3-12

Notice Publication Date: 12-1-2011

Rules Amended: 165-010-0005, 165-010-0060

Rules Repealed: 165-010-0085

Subject: OAR 165-010-0005 is proposed for amendment to designate the 2012 Candidate’s Manual and associated forms as the procedures and forms used by candidates filing and running for elected office. In addition this rule designates the 2012 Minor Political Party Formation and Candidate Nomination Manual as the procedures and forms to be used to form a Minor Political Party and nominate candidates for elective office.

      OAR 165-010-0060 is proposed for amendment to incorporate changes made to the forms that a nominee to fill a legislative vacancy would file indicating their willingness to serve if appointed.

      OAR 165-010-0085 is proposed for repeal because it has been incorporated into OAR 165-010-0060.

Rules Coordinator: Brenda Bayes—(503) 986-1518

165-010-0005

Designating the State Candidates Manuals, County Candi­date’s Manual and Forms

(1) The Secretary of State designates the 2012 Candidate’s Manual and associated forms as the procedures and forms to be used by candidates filing and running for elective office.

(2) The Secretary of State designates the 2012 Minor Political Party Formation and Candidate Nomination and associated forms as the procedures and forms to be used to form a Minor Political Party and nominate candidates for elective office.

[Publications: Publications referenced are available from the agency.]

Stat. Auth.: ORS 246.120, 246.150 & 249.009

Stats. Implemented: ORS 246.120, 246.150 & 249.009

Hist.: SD 35-1980, f. & ef. 3-6-80; SD 31-1983, f. & ef. 12-20-83; SD 5-1986, f. & ef. 2-26-86; ELECT 9-1992(Temp), f. & cert. ef. 4-9-92; ELECT 32-1992, f. & cert. ef. 10-8-92; ELECT 33-1993, f. & cert. ef. 11-1-93; ELECT 1-1996, f. & cert. ef. 1-3-96; ELECT 8-1997, f. & cert. ef. 10-3-97; ELECT 3-1998, f. & cert. ef. 2-11-98; ELECT 6-1998, f. & cert. ef. 5-8-98; ELECT 10-1999, f. & cert. ef. 10-18-99; ELECT 3-2002, f. & cert. ef. 3-13-02; ELECT 18-2003, f. & cert. ef. 12-5-03; ELECT 2-2004(Temp), f. & cert. ef. 4-9-04 thru 10-6-04; Administrative correction 10-22-04; ELECT 9-2005, f. & cert. ef. 12-14-05; ELECT 11-2007, f. & cert. ef. 12-31-07; ELECT 25-2009, f. & cert. ef. 12-31-09; ELECT 1-2011, f. & cert. ef. 2-4-11; ELECT 16-2011(Temp), f. & cert. ef. 8-16-11 thru 12-31-11; ELECT 4-2012, f. & cert. ef. 1-3-12

165-010-0060

Procedure for Conduct of Meeting to Fill Vacancy in Legis­lative Assembly

The following procedures govern the conduct of a meeting of a county court or board of commissioners (hereafter, county governing body(ies)) to fill a vacancy in the Legislative Assembly These meeting procedures apply to appointments made under either ORS 171.060(1) (vacancy to be filled by nominee affiliated with a major political party) or ORS 171.060(2) (vacancy need not be filled by member of a particular major political party).

(1) A meeting of the members of the county governing body(ies) shall convene at the time designated by the Secretary of State. If the legislative district includes more than one county, the Secretary of State shall also name the temporary chairperson for the meeting and designate its location, which shall be within the legislative district. The Secretary of State shall also notify the county governing body(ies) of the nominees and of the number of votes apportioned to each member of the county governing body(ies) under ORS 171.062 and 171.064.

(2) The chairperson conducting the meeting shall open the meeting at the time designated by the Secretary of State. The chairperson shall announce that the purpose of the meeting is to appoint a person to fill the vacancy in the Legislative Assembly. If applicable, the appointment will be made from the list of nominees from the major political party as furnished by the Secretary of State.

(3) Members of the county governing body eligible to vote on the selection are those physically or electronically present at the meeting, who are currently holding office by election or appointment.

(4) The county governing body(ies), in making its determination, may allot time for interviewing nominees or applicants and for other pertinent deliberations prior to voting.

(5) The vote shall be taken in a manner specified by a majority of those present and eligible to vote on the selection. The person receiving the highest number of votes shall be the appointee. However, in any case, the vote of each member of the governing body(ies) shall be recorded and included in the written statement required by ORS 171.060(3).

(6) The Secretary of State hereby adopts form SEL 145, Statement of Nominee’s Willingness to Serve, as the form to be used to accept a nomination to fill a legislative vacancy. The form shall contain:

(a) Nominee’s name;

(b) Office and district number, if any, for which candidate would accept appointment;

(c) Candidate’s residence address;

(d) Candidate’s home and work telephone numbers;

(e) Mailing address where all correspondence will be sent;

(f) Statement that candidate will accept appointment; and

(g) Candidate’s signature and date signed.

Stat. Auth.: ORS 171.051, 171.060 & 249.200

Stats. Implemented: ORS 171.060(1)

Hist.: ELECT 7-1993, f. & cert. ef. 2-16-93; ELECT 10-1999, f. & cert. ef. 10-18-99; ELECT 18-2003, f. & cert. ef. 12-5-03; ELECT 4-2012, f. & cert. ef. 1-3-12

 

Rule Caption: Amends Rules Regarding Campaign Finance
Regulation and Repeals Rule Regarding Slate Mailer Organizations.

Adm. Order No.: ELECT 5-2012

Filed with Sec. of State: 1-3-2012

Certified to be Effective: 1-3-12

Notice Publication Date: 12-1-2011

Rules Amended: 165-012-0005, 165-012-0240

Rules Repealed: 165-012-0060

Subject: OAR 165-012-0005 is proposed rule amendment designates the 2012 Campaign Finance Manual and associated forms as the procedures and forms used for compliance with campaign finance regulations.

      OAR 165-012-0240 is proposed for amendment to add reference to petition committees, as well as incorporate technical changes made by the 2011 Legislative Assembly to the process of administratively discontinuing a political committee.

      OAR 165-012-0060 is proposed for repeal because the 2011 Legislative Assembly repealed ORS 260.735 and 260.737 requiring slate mailer organizations to file a statement of organization and the requirement of specific disclosures on a slate mailer.

Rules Coordinator: Brenda Bayes—(503) 986-1518

165-012-0005

Designating the Campaign Finance Manual and Forms; Late Penalty Matrix

(1) Pursuant to ORS 260.156, the Secretary of State designates the 2012 Campaign Finance Manual and associated forms as the procedures and guidelines to be used for compliance with Oregon campaign finance regulations.

[Publications: Publications and Forms referenced are available from the agency.]

Stat. Auth.: ORS 246.120, 246.150, 260.156 & 260.200

Stats. Implemented: ORS 246.120, 246.150, 260.156 & 260.200

Hist.: SD 101, f. & ef. 12-3-75; SD 120, f. & ef. 12-21-77; SD 34-1980, f. & ef. 3-6-80; SD 28-1983, f. & ef. 12-20-83; SD 3-1986, f. & ef. 2-26-86; ELECT 32-1988(Temp), f. & cert. ef. 8-26-88; ELECT 22-1989(Temp), f. & cert. ef. 11-9-89; ELECT 19-1990, f. & cert. ef. 6-4-90; ELECT 14-1992 (Temp), f. & cert. ef. 6-10-92; ELECT 37-1992, f. & cert. ef. 12-15-92; ELECT 34-1993, f. & cert. ef. 11-1-93; ELECT 1-1995(Temp), f. & cert. ef. 2-23-95; ELECT 15-1995, f. & cert. ef. 12-18-95; ELECT 9-1996, f. & cert. ef. 7-26-96; ELECT 5-1997, f. & cert. ef. 3-24-97; ELECT 6-1997(Temp), f. & cert. ef. 4-18-97; ELECT 15-1997, f. & cert. ef. 12-31-97; ELECT 5-1998, f. & cert. ef. 2-26-98; ELECT 8-1998, f. & cert. ef. 6-2-98; ELECT 9-1998, f. & cert. ef 9-11-98; ELECT 13-1998(Temp), f. & cert. ef. 12-15-98 thru 6-13-99; ELECT 2-1999(Temp), f. & cert. ef. 1-15-99 thru 7-14-99; ELECT 3-1999, f. & cert. ef. 3-1-99; ELECT 1-2000, f. & cert. ef. 1-3-00; ELECT 3-2002, f. & cert. ef. 3-13-02; ELECT 23-2003, f. & cert. ef. 12-12-03; ELECT 13-2005, f. & cert. ef. 12-30-05; ELECT 1-2007, f. & cert. ef. 1-5-07; ELECT 2-2007(Temp), f. & cert. ef. 5-2-07 thru 10-29-07; ELECT 4-2007(Temp), f. & cert. ef. 7-16-07 thru 12-31-07; ELECT 13-2007, f. & cert. ef. 12-31-07; ELECT 8-2009, f. & cert. ef. 5-4-09; ELECT 16-2009, f. & cert. ef. 7-30-09; ELECT 27-2009, f. & cert. ef. 12-31-09; ELECT 3-2010, f. & cert. ef. 4-22-10; ELECT 8-2011, f. & cert. ef. 4-8-11; ELECT 12-2011, f. & cert. ef. 7-12-11; ELECT 21-2011(Temp), f. & cert. ef. 9-30-11 thru 12-30-11; ELECT 5-2012, f. & cert. ef. 1-3-12

165-012-0240

Administrative Discontinuation of a Political Committee

(1) The Elections Division may administratively discontinue a political or petition committee when:

(a) The committee has not filed any transactions under ORS 260.057 for one calendar year; and

(b) The committee’s ending cash balance reflected in ORESTAR is not more than $3000.

(2) Not later than 30 days before administratively discontinuing a committee under this section, the Elections Division shall attempt to notify the committee of the proposed discontinuation.

(a) For a candidate committee:

(A) By first class mail sent to the mailing address reported on the most recent Statement of Organization for the candidate and by first class mail to the most recent mailing address for the candidate reported in the Oregon Centralized Voter Registration System. If both addresses are the same, only one letter shall be sent; and

(B) By first class mail to the mailing address reported on the most recent Statement of Organization for the treasurer, if applicable.

(b) For a political committee notice will be sent by first class mail sent to the mailing address reported on the most recent Statement of Organization for the treasurer and by first class mail to the most recent mailing address for the treasurer reported in the Oregon Centralized Voter Registration System. If both addresses are the same, only one letter shall be sent.

(c) For a petition committee:

(A) By first class mail sent to the mailing address reported on the most recent Statement of Organization for the chief petitioner and by first class mail to the most recent address for the chief petitioner in the Oregon Centralized Voter Registration System. If both addresses are the same, only one letter shall be sent; and

(B) By first class mail to the mailing address reported on the most recent Statement of Organization for the treasurer, if applicable.

(3) The notice shall inform the committee that it will be discontinued by the Elections Division unless the committee informs the Elections Division of reasons why the committee does not meet the criteria of this rule for administrative discontinuation. The committee must inform the Elections Division in writing of the reasons not later than 20 days after the service date of the letter. The written notice shall also include:

(a) Notification that the statement of organization will be administratively discontinued 30 days from the date of the letter; and

(b) The applicable reasons for discontinuation listed in subsection (1) of this section.

Stat. Auth.: ORS 246.150, 260.046

Stats. Implemented: ORS 260.046

Hist.: ELECT 14-2005, f. & cert. ef. 12-30-05; ELECT 6-2007, f. & cert. ef. 8-27-07; ELECT 29-2009, f. & cert. ef. 12-31-09; ELECT 5-2012, f. & cert. ef. 1-3-12

 

Rule Caption: Amendment to Penalty Matrices for Non-Campaign Finance Violations and Other Campaign Finance Violations.

Adm. Order No.: ELECT 6-2012

Filed with Sec. of State: 1-3-2012

Certified to be Effective: 1-3-12

Notice Publication Date: 12-1-2011

Rules Amended: 165-013-0010, 165-013-0020

Subject: OAR 165-013-0010 is proposed for amendment to remove from the Penalty Matrix for Campaign Finance Civil Penalty Election Law Violation the penalty for a slate mailer organization to file a statement of organization. This provision was repealed by the 2011 Legislative Assembly.

      OAR 165-013-0020 is proposed for amendment to clarify the penalty for violating ORS 260.567 to $250 for each occurrence.

Rules Coordinator: Brenda Bayes—(503) 986-1518

165-013-0010

Penalty Matrix for Other Campaign Finance Violations

(1) This penalty matrix applies to civil penalties for campaign finance violations not covered by the penalty matrices in the Campaign Finance Manual.

(2)(a) Spot Check Review. The Secretary of State, Elections Division, will hold exempt from disclosure as a public record any bank account number(s), credit card number(s) or social security number(s) received as required documentation in response to a request for documentation necessary to perform a spot check review in accordance with ORS 260.215(3).

(b) If a committee fails to provide documentation or provides insufficient documentation in response to a request for documentation necessary to perform a spot check review, each omitted or insufficient item is a violation of ORS 260.055(3).

(c) If the committee fails to provide sufficient documentation for a transaction by the deadline stated in the first spot check review letter, the Elections Division shall send a second review letter notifying the committee which transaction(s) lack sufficient documentation. The second review letter shall provide the committee a deadline for response.

(d) Omitted or insufficient information submitted after the deadline provided in the second review letter, but prior to the deadline for a candidate or treasurer to request a hearing will result in a 50% per item reduction of the penalty. If a public hearing is requested, the omitted or insufficient documentation may be submitted up to the date of the hearing. In such an event, the candidate or treasurer will be entitled to a 50% per item reduction of the assessed penalty.

(e) The candidate or treasurer of record at the time the first spot check review letter is generated, along with the candidate if applicable, is responsible for submitting documentation for all transactions selected in the spot check review.

(f) For the purpose of imposing a civil penalty for a violation of ORS 260.055(3), the candidate of the principal campaign committee; and the treasurer of a political or petition committee are the parties responsible for the payment of any civil penalty.

(3) Mitigating Circumstances. Except as specifically provided in paragraph (2)(d), the only mitigating circumstances that will be considered in a campaign finance violation covered by this rule include:

(a) The violation is a direct result of a valid personal emergency of the candidate or treasurer. A valid personal emergency is an emergency, such as a serious personal illness or death in the immediate family of the candidate or treasurer which caused the violation to occur. Personal emergency does not include a common cold or flu, or a long-term illness where other arrangements could have been made. In this case, independent written verification must be provided;

(b) The violation is the direct result of an error by the elections filing officer;

(c) The violation is the direct result of clearly-established fraud, embezzlement, or other criminal activity against the committee, committee treasurer or candidate, as determined in a criminal or civil action in a court of law or independently corroborated by a report of a law enforcement agency or insurer or the sworn testimony or affidavit of an accountant or bookkeeper or the person who actually engaged in the criminal activity;

(d) The violation is the direct result of fire, flood or other calamitous event, resulting in physical destruction of, or inaccessibility to, committee records. (“Calamitous event” means a phenomenon of an exceptional character, the effects of which could not have been reasonably prevented or avoided by the exercise of due care or foresight);

(e) The violation is the direct result of failure of a professional delivery service to deliver documents in the time guaranteed for delivery by written receipt of the service provider (this does not include delivery by fax); or

(f) The violation is the direct result of negligent record keeping by a former treasurer. Former treasurer refers to the person who was the treasurer of record at the time the transaction was filed or should have been filed.

(4)(a) Penalty Matrix. These mitigating circumstances may be considered in reducing, in whole or in part, the civil penalty. If the violation is a direct result of an error by the elections filing officer, the violation is waived and no penalty is assessed.

(b) Omitted or insufficient information for a violation of ORS 260.039(4), 260.042(4) or 260.118(3) submitted prior to the deadline for a candidate or treasurer to request a hearing will result in a 50% reduction of the penalty. If a public hearing is requested, the omitted or insufficient information may be submitted up to the date of the hearing. In such an event, the candidate or treasurer will be entitled to a 50% reduction of the assessed penalty.

(c) For purposes of determining penalty amounts for violations of campaign finance violations covered by this rule Appendix A of this rule will apply. [Appendix not included. See ED. NOTE.]

[ED. NOTE: Appendix referenced is available from the agency.]

Stat. Auth.: ORS 246.150, 260.200

Stats. Implemented: ORS 260.200, 260.215, 260.232, 260.995

Hist.: ELECT 13-2000, f. 7-31-00, cert. ef. 8-4-00; ELECT 22-2003, f. & cert. ef. 12-5-03; ELECT 1-2004, f. & cert. ef. 2-13-04; ELECT 16-2005, f. & cert. ef. 12-30-05; ELECT 10-2006(Temp), f. & cert. ef. 7-6-06 thru 1-2-07; ELECT 17-2006, f. & cert. ef. 12-29-06; ELECT 14-2007, f. & cert. ef. 12-31-07; ELECT 30-2009, f. & cert. ef. 12-31-09; ELECT 9-2011, f. & cert. ef. 4-8-11; ELECT 6-2012, f. & cert. ef. 1-3-12

165-013-0020

Penalty Matrix for Non-Campaign Finance Civil Penalty Election Law Violations

(1)(a) This penalty matrix applies to civil penalties for violations of election laws that are not covered by the penalty matrices in the Campaign Finance Manual (late and insufficient campaign finance reports and new transactions to campaign finance reports), or other campaign finance violations as outlined in 165-013-0010.

(b) The penalty amount will be calculated against the same person, candidate or entity as described below for a period of four years from the date the violation occurs, for any election law violation, other than campaign finance violations covered in the penalty matrices in the Campaign Finance Manual and other campaign finance violations as outlined in 165-013-0010. In determining whether the offense is to be considered against the same person, candidate or entity, the following factors are to be considered:

(A) A person is considered the same candidate, regardless of the office(s) for which the person runs within this state, or whether there is a lapse in time between candidacies.

(B) A political committee is considered the same, regardless of who the treasurer is, or if the political committee has changed names but is established by the same group of persons.

(C) The same individual.

(D) One occurrence is considered one violation.

(E) Not withstanding (F) or (G), if a violation is the first on record for the person, and multiple occurrences of the same statutory provision are described in an election law complaint, the occurrences will be combined (to be considered as one violation) and considered a first violation of the statutory provision, except in such cases where specific circumstances warrant separating the occurrences to impose fines for each violation. This would be appropriate when different persons were affected by the election law offense. Each subsequent occurrence of violation of the same statutory provision after the issuance of a notification letter or a determination of election law violation, within the four-year cycle, may be considered as separate violations.

(F) Violations of Article IV, Section 1(b) will be calculated by deeming each individual signature sheet that contains signatures that were collected in violation of Section 1(b) as a single occurrence with a minimum civil penalty of $2,500.

(G) Violations of ORS 260.569, will be calculated by deeming each individual signature sheet that contains a signature a violation of ORS 260.569 or each signed voter registration card in violation of ORS 260.569 as a single occurrence with a minimum civil penalty of $100.

(2) Mitigating Circumstances: The burden is on the person alleged to have committed the election law violation to show that a mitigating circumstance exists and caused the election law violation. The only mitigating circumstances which will be considered, if applicable to the specific situation, include:

(a) The violation is a direct result of a valid personal emergency of the involved person(s). A valid personal emergency is an emergency such as a serious personal illness or death in the immediate family of the involved person(s). Personal emergency does not include a common cold or flu, or a long-term illness where other arrangements could have been made. In this case, independent written verification must be provided;

(b) The violation is the direct result of an error by an elections officer;

(c) The violation is the direct result of fire, flood or other calamitous event, resulting in physical destruction of, or inaccessibility to, any records required to be kept to document compliance with Oregon election law. (“Calamitous event” means a phenomenon of an exceptional character, the effects of which could not have been reasonably prevented or avoided by the exercise of due care or foresight);

(d) The violation of ORS 260.432 occurred after a publication produced and distributed by a governing body relating to a ballot measure was reviewed by the governing body’s legal counsel before its distribution. The legal counsel must have advised the governing body in writing or by email that the draft publication was impartial information that the governing body could legally produce and distribute;

(e) The violation of ORS 260.432 occurred after a publication produced and distributed by a governing body relating to a ballot measure was reviewed by the Secretary of State’s office, Elections Division. The Secretary of State must have advised the governing body in writing that the publication as drafted was impartial information that the governing body could legally produce and distribute or for which suggestions were provided towards the goal of assuring the publication was impartial information regarding the ballot measure. If the Secretary of State issued an advice letter with suggested changes, the governing body must have substantially followed the advice provided. However, this mitigating factor may be disallowed, even if such an advice letter was issued, if a complaint and investigation indicates sufficient evidence that the public body presented inaccurate or unbalanced information, not within the purview of this office to have knowledge of prior to the complaint, which has the effect of promoting or opposing the adoption of the measure;

(f) The violation of ORS 260.432(2) occurred, but the public employee had voiced their objection to the person who coerced, commanded or required the employee to perform the prohibited campaign activity during their work time. Despite the stated objection, the person was still required to perform the activity that violated ORS 260.432(2); or

(g) The violation of ORS 260.432(2) occurred when a supervisor asked the public employee to perform the prohibited campaign activity, consisting of clerical tasks, as a part of the public employee’s job duties during work time. A “request” made by a supervisor is considered a command or requirement within the meaning of ORS 260.432(1). If the violation involves a written document, the public employee performed clerical tasks only and is not the author of the material.

(3)(a) Penalty Matrix. These mitigating circumstances may be considered in reducing, in whole or in part, the civil penalty. If the violation is a direct result of an error by an elections officer, the violation is waived and no penalty is assessed.

(b) For purposes of determining penalty amounts for violations of non-campaign finance civil penalty election law violations, Appendix B of this rule will apply. [Appendix not included. See ED. NOTE.]

[ED. NOTE: Appendices referenced are available from the agency.]

Stat. Auth.: ORS 246.150

Stats. Implemented: ORS 260.995

Hist.: ELECT 14-2000, f. 7-31-00, cert. ef. 8-4-00; ELECT 22-2003, f. & cert. ef. 12-5-03; ELECT 16-2005, f. & cert. ef. 12-30-05; ELECT 15-2007, f. cert ef. 12-31-07; ELECT 9-2009, f. & cert. ef. 5-4-09; ELECT 31-2009, f. & cert. ef. 12-31-09; ELECT 6-2012, f. & cert. ef. 1-3-12

 

Rule Caption: Adopts the 2012 Initiative and Referendum Manuals, Recall Manual and Referral Manual.

Adm. Order No.: ELECT 7-2012

Filed with Sec. of State: 1-3-2012

Certified to be Effective: 1-3-12

Notice Publication Date: 12-1-2011

Rules Amended: 165-014-0005

Subject: This proposed rule amendment designates the 2012 State Initiative and Referendum Manual; 2012 Recall Manual; and the 2012 County, City and District Initiative and Referendum Manual and associated forms as the procedures and forms used to be used or the initiative, referendum and recall processes. In addition, this proposed rule amendment designates the 2012 County, City and District Referral Manual to be used for the local referral process.

Rules Coordinator: Brenda Bayes—(503) 986-1518

165-014-0005

Designating the Initiative, Referendum and Recall Manuals and Forms

(1) The Secretary of State designates the 2012 State Initiative and Referendum Manual and associated forms as the procedures and forms to be used for the state initiative and referendum process.

(2) The Secretary of State designates the 2012 Recall Manual and associated forms as the procedures and forms to be used for the recall process.

(3) The Secretary of State designates the 2012 County, City and District Initiative and Referendum Manual and associated forms as the procedures, except where state law permits the procedure to be otherwise under local charter or ordinance, and forms to be used for the county initiative and referendum process.

(4) The Secretary of State designates the 2012 County, City and District Referral Manual and associated forms as the procedures, except where state law permits the procedure to be otherwise under local charter or ordinance, and forms to be used for the local referral process.

[Publications: Publications referenced are available from the agency.]

Stat. Auth.: ORS 264.120, 246.150 & 250.015

Stats. Implemented: ORS 246.120, 246.150 & 250.015

Hist.: SD 120, f. & ef. 12-21-77; SD 7-1979(Temp), f. & ef. 11-5-79; SD 31-1980, f. & ef. 3-6-80; SD 10-1984, f. & ef. 6-19-84; SD 21-1984(Temp), f. & ef. 10-8-84; SD 4-1986, f. & ef. 2-26-86; ELECT 33-1988(Temp), f. & cert. ef. 8-26-88; ELECT 4-1989(Temp), f. & cert. ef. 8-11-89; ELECT 4-1991 (Temp), f. & cert. ef. 3-18-91; ELECT 10-1992(Temp), f. & cert. ef. 4-9-92; ELECT 19-1992(Temp), f. & cert. ef. 7-1-92; ELECT 39-1992, f. & cert. ef. 12-17-92; ELECT 3-1993 (Temp), f. & cert. ef. 1-22-93; ELECT 10-1993, f. & cert. ef. 3-25-93; ELECT 35-1993, f. & cert. ef. 11-1-93; ELECT 1-1996, f. & cert. ef. 1-3-96; ELECT 8-1997, f. & cert. ef. 10-3-97; ELECT 3-1998, f. & cert. ef. 2-11-98; ELECT 10-1999, f. & cert. ef. 10-18-99; ELECT 3-2002, f. & cert. ef. 3-13-02; Elect 9-2002(Temp), f. & cert. ef. 12-5-02 thru 6-3-03; ELECT 4-2003, f. & cert. ef. 4-25-03; ELECT 20-2003, f. & cert. ef. 12-5-03; ELECT 10-2005, f. & cert. ef. 12-14-05; ELECT 3-2007(Temp), f. & cert. ef. 5-14-07 thru 11-10-07; Administrative correction 11-17-07; ELECT 16-2007, f. & cert. ef. 12-31-07; ELECT 32-2009, f. & cert. ef. 12-31-09; ELECT 7-2012, f. & cert. ef. 1-3-12

 

Rule Caption: Revises Rule on Insufficient and Sufficient Circulator Certifications.

Adm. Order No.: ELECT 8-2012

Filed with Sec. of State: 1-3-2012

Certified to be Effective: 1-3-12

Notice Publication Date: 10-1-2011

Rules Amended: 165-014-0270

Subject: This proposed rule amendment would update the list of sufficient circulator certification to allow a circulator who has crossed out their own signature and certification date to re-sign and re-date the circular certification.

Rules Coordinator: Brenda Bayes—(503) 986-1518

165-014-0270

Circulator Certification

(1) The purpose of this rule is to incorporate into administrative law previously enforced standards on what constitutes a sufficient circulator certification on Initiative, Referendum, Recall, and Candidate Nominating petitions.

(2) A petition signature sheet will be rejected for insufficient circulator certification if:

(a) No signature whatsoever appears below the certification;

(b) No date appears next to circulator’s signature or the date is crossed out;

(c) The date of the circulator certification is earlier than the date of the electors’ signatures, unless the circulator and the only signer are the same person;

(d) Original date is crossed out, and a new date is provided, but the circulator failed to re-sign;

(e) Any part of the original date is overwritten with a different date;

(f) Date information is insufficient or ambiguous. Date must be provided in month, day, year order if written in all numeric characters;

(g) The original signature of a circulator has been crossed out, and a different circulator’s signature is inserted;

(h) Two individuals sign and date as circulator, unless the only signers and the circulators are the same people;

(i) White out appears on the signature or date line;

(j) The circulator has signed using only initials, unless the circulator’s use of initials as a signature is verified by exemplar under paragraph (5) of this rule;

(k) The circulator has signed using a signature stamp, unless use of a signature stamp has been approved under ORS 246.025;

(l) Circulator’s signature is photocopied, carbon-copied, or otherwise appears on the face of the document to be a replicated and not original signature except as provided for in ORS 250.043;

(m) Signature, printed name, and address are all illegible;

(n) Signature alone is illegible, unless the circulator’s use of the apparently illegible signature is verified by exemplar under paragraph (5) of this rule;

(o) Circulator’s signature is in printed script rather than cursive script, unless the circulator’s use of a printed signature is verified by exemplar under paragraph (5) of this rule;

(p) If for any other reason, from the face of the signature sheet, the circulator’s identity cannot be determined or it otherwise cannot be determined that the circulator executed the certification after witnessing the electors’ signatures.

(3) If a petition signature sheet contains elector signatures dated both on or before the date of the circulator’s effective certification and after the date of the circulator’s effective certification, the signature sheet will be accepted with regard to the elector signatures dated on or before the date of the certification, but elector signatures dated after the date of the certification will not be accepted.

(4) The following defects in the circulator certification will not result in rejection of the signature sheet:

(a) The circulator’s signature appears on the printed name line instead of on the signature line;

(b) Signature consists of full last name and at least the first name initial;

(c) The circulator has signed and dated the certification, but has not provided an address or printed name; or

(d) The circulator has re-signed and re-dated the certification.

(5) If a preliminary determination is made under paragraph (2)(j), (n) or (o) of this rule that a certification is insufficient, the certification signature may be verified by exemplar in the following manner:

(a) If the circulator is required to be registered under ORS 250.048 Section 2 the Elections Division will compare the certification signature only to the circulator’s signature supplied by the circulator on the circulator’s SEL 308, Circulator Registration. If the certification signature matches the signature on the SEL 308 that was in effect at the time that the signature sheet was certified, the petition signature sheet will be accepted. If the certification signature does not match the signature on the SEL 308 that was in effect at the time that the signature sheet was certified, the petition signature sheet will be rejected for insufficient certification. A certification signature may consist at a minimum of a first name initial and full last name and still be accepted even if the signature on the circulator’s most recent SEL 308 contains a full first name and full last name.

(b) For circulators not required to be registered under ORS 250.048, the Elections Division will compare the certification signature to the circulator’s current Oregon voter registration card signature, if available. If the certification signature matches the voter registration signature, the petition signature sheet will be accepted.  If the certification signature does not match the voter registration signature, the petition signature sheet will be rejected for insufficient certification.

(c) If the circulator is not required to be registered under ORS 250.048 and an Oregon voter registration card bearing the circulator’s signature is not available as an exemplar, the Elections Division will compare the certification signature to an alternative exemplar filed with the Elections Division or retained on file by the Elections Division under section (6) of this rule. If the certification signature does not match the alternative exemplar provided or retained under section (6) and (7) of this rule, the petition signature sheet will be rejected for insufficient certification.

(d) If the circulator is not required to be registered under ORS 250.048 and an Oregon voter registration card bearing the circulator’s signature is not available as an exemplar, and an alternative exemplar has not been filed with or retained on file by the Elections Division under section (6) and (7) of this rule, the Elections Division will notify the chief petitioner or the chief petitioner’s designee by telephone and electronic mail, if available, and provide the chief petitioner or designee an opportunity to submit an alternative exemplar of the circulator’s signature.

(A) If an alternative exemplar is requested by the Elections Division not later than the 20th day after signatures are submitted for verification, the chief petitioners or the chief petitioner’s designee must provide the alternative exemplar within 2 days of notification for the alternative exemplar to be considered.

(B) If an alternative exemplar is requested by the Elections Division after the 20th day after signatures are submitted for verification, the chief petitioners or the chief petitioner’s designee must provide the alternative exemplar within 1 day of notification for the alternative exemplar to be considered.

(C) The alternative exemplar must be a signature on an official government-issued document such as a driver’s license or passport, and must have been executed before the date of the attempted certification of the petition signature sheet. If the certification signature matches the alternative exemplar, the petition signature sheet will be accepted. If the certification signature does not match the alternative exemplar, the petition signature sheet will be rejected for insufficient certification.

(D) The alternative exemplar may be physically delivered to the Elections Division or may be delivered by facsimile transmission or electronic mail. If delivered by electronic mail, the document must be reproduced in .gif or .pdf format. The alternative exemplar must be received at the office of the Secretary of State not later than 5 p.m. of the day it is due.

(6) Chief petitioners may submit alternative exemplars of petition circulators’ signatures at the same time they submit petition signature sheets for signature verification. The alternative exemplar must comply with the requirements of paragraph (5)(c)(C) of this rule. When submitting alternative exemplars, chief petitioners must provide a list of circulators for whom they are submitting alternative exemplars. If no list accompanies the alternative exemplars submitted under this section, those alternative exemplars will not be accepted or used to compare the circulator’s signature to the certification. If an alternative exemplar is omitted from the list, that alternative exemplar will not be accepted or used to compare the circulator’s signature to the certification. Chief petitioners may still be offered the opportunity to submit alternative exemplars under paragraph (5)(c).

(7) Alternative exemplars received and accepted by the Elections Division under paragraphs (5) and (6) of this rule, will be retained on file for two years from the date of receipt.

Stat. Auth.: ORS 246.150, 249.008, 250.105, 250.215, 250.315 & 255.175

Stats. Implemented: ORS 249.008, 249.061, 249.740, 249.865, 249.875, 250.045, 250.105, 250.215, 250.315 & 255.175

Hist.: ELECT 4-2005, f. & cert. ef. 4-8-05; ELECT 23-2007, f. & cert. ef. 12-31-07: ELECT 8-2012, f. & cert. ef. 1-3-12

 

Rule Caption: Repeals the City and District Elections Manuals.

Adm. Order No.: ELECT 9-2012

Filed with Sec. of State: 1-3-2012

Certified to be Effective: 1-3-12

Notice Publication Date: 12-1-2011

Rules Repealed: 165-020-0005

Subject: This rule is proposed for repeal because the contents of the City Elections Manual and the District Elections Manual as well as associated forms have been incorporated into either in the 2012 Candidates Manual or the 2012 County, City and District Initiative and Referendum Manual which are adopted under OAR 165-010-0005 and OAR 165-014-0005.

Rules Coordinator: Brenda Bayes—(503) 986-1518

Notes
1.) This online version of the OREGON BULLETIN is provided for convenience of reference and enhanced access. The official, record copy of this publication is contained in the original Administrative Orders and Rulemaking Notices filed with the Secretary of State, Archives Division. Discrepancies, if any, are satisfied in favor of the original versions. Use the OAR Revision Cumulative Index found in the Oregon Bulletin to access a numerical list of rulemaking actions after November 15, 2011.

2.) Copyright 2012 Oregon Secretary of State: Terms and Conditions of Use

Oregon Secretary of State • 136 State Capitol • Salem, OR 97310-0722
Phone: (503) 986-1523 • Fax: (503) 986-1616 • oregon.sos@state.or.us

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