16-938. Enforcement authority; investigation; reasonable cause; notice of violation; appeal

A. Notwithstanding section 16-1021, on receipt of a complaint from a third party, a filing officer is the sole public officer who is authorized to initiate an investigation into alleged violations of this article and articles 1, 1.1, 1.2, 1.3, 1.4, 1.5 and 1.6 of this chapter, including the alleged failure to register as a committee. A filing officer shall limit an investigation to violations that are within the filing officer's jurisdiction. If the filing officer declares a conflict of interest, the filing officer may refer the investigation to any other filing officer in this state who agrees to accept the referral.

B. The secretary of state shall establish guidelines in the instructions and procedures manual adopted pursuant to section 16-452 that outline the procedures, timelines and other processes that apply to investigations by all filing officers in this state.

C. If after providing the subject of an investigation a reasonable opportunity to respond, the filing officer has reasonable cause to believe a person violated this article or article 1, 1.1, 1.2, 1.3, 1.4, 1.5 or 1.6 of this chapter, the filing officer shall refer the matter to the enforcement officer as follows:

1. For matters investigated by the secretary of state, the secretary of state shall notify the attorney general.

2. For matters investigated by a county filing officer, the county filing officer shall notify the county attorney.

3. For matters investigated by a city or town filing officer, the city or town filing officer shall notify the city or town attorney.

D. Before a reasonable cause determination is made as prescribed in subsection C of this section, a filing officer, an enforcement officer and any other public officer or employee may not order a person to register as a committee and do not have audit or subpoena powers to compel the production of evidence or the attendance of witnesses concerning a potential campaign finance violation. A filing officer may request the voluntary production of evidence or attendance of witnesses in making a reasonable cause determination.

E. Only after receiving a referral from the filing officer, the enforcement officer may:

1. Conduct an investigation using the enforcement officer's subpoena powers, except that the enforcement officer shall not compel a person to file campaign finance reports unless the enforcement officer has determined that the person is a committee.

2. Serve the alleged violator with a notice of violation. The notice shall state with reasonable particularity the nature of the violation, shall specify the penalty imposed and shall require compliance within twenty days after the date of issuance of the notice. The enforcement officer shall impose a presumptive civil penalty equal to the value or amount of money that has been received, spent or promised in violation of this article and articles 1, 1.1, 1.2, 1.3, 1.4, 1.5 and 1.6 of this chapter, except that after a finding of special circumstances, the enforcement officer may impose a penalty of up to three times the amount of the presumptive civil penalty, based on the severity, extent or wilful nature of the alleged violation. If the notice of violation requires a person to file campaign finance reports, the reports are not required to be filed until the enforcement officer's notice of violation has been upheld after any timely appeal.

3. Keep any nonpublic information gathered by the enforcement officer in the course of the committee status investigation confidential until the final disposition of any appeal of the enforcement order.

F. The enforcement officer has the sole and exclusive authority to initiate any applicable administrative or judicial proceedings to enforce an alleged violation of this article and articles 1, 1.1, 1.2, 1.3, 1.4, 1.5 and 1.6 of this chapter that have been referred by the filing officer.

G. If the alleged violator:

1. Takes corrective action within twenty days after the date of the issuance of the notice of violation by the enforcement officer, the alleged violator is not subject to any penalty.

2. Does not take corrective action within twenty days after the date of issuance of the notice of violation by the enforcement officer, the enforcement officer shall impose the penalty set forth in the notice and shall provide formal notice that the imposition of the penalty may be appealed to the superior court.

H. Within thirty days after receiving the notice of the penalty from the enforcement officer, the alleged violator may file a notice of appeal in the superior court. The alleged violator shall provide a copy of the notice of appeal to the enforcement officer.

I. At the hearing on an appeal filed pursuant to subsection H of this section, the superior court shall conduct a trial de novo and the enforcement officer has the burden of proving any alleged violation by a preponderance of the evidence.