June 8, 2018

Campaigns and the public will see changes to the way the Public Disclosure Commission handles complaints alleging violations of RCW 42.17A and WAC 390 under a new law that took effect this week.

The modified process was prescribed by Engrossed Substitute House Bill 2938, which was signed into law March 28. 

Preliminary review of complaints
Under the new law, the PDC has 90 days in which to resolve or advance complaints alleging violations of the requirements in RCW 42.17A, including those governing campaign finance disclosure, political advertising, lobbying, personal financial affairs statements, and the use of public facilities to support or oppose a candidate or ballot proposition.

During that time, the PDC must determine whether a complaint is: 

  • Unfounded or frivolous;
  • Appropriate for resolution as a minor violation, remedial violation or technical correction;  
  • Appropriate for investigation; or
  • Appropriate for referral to the attorney general.

Remedial violations and technical corrections
Two new alternative resolutions to campaign finance complaints were created by ESHB 2938: remedial violations and technical corrections. Resolving matters as remedial violations or technical corrections are additions to the other tools – such as warning letters and statements of understanding – available to the PDC to resolve complaints short of a formal investigation. 

A number of factors will determine whether a complaint might qualify for resolution as a remedial violation, among them: the harm to the public interest, the amount of expenditures involved, the timing of the alleged violation, whether the candidate won the election, how much the campaign received in contributions and corrective steps taken by the respondent.

Technical corrections are simpler to define: minor or ministerial errors on required PDC reports that did not materially impact the public interest. To qualify for resolution as a remedial violation or a technical correction, the identified deficiencies in reports must be timely corrected. 

Case status reviews
ESHB 2938 also institutes a new step for complaints that become investigations. Matters being investigated will be scheduled for an initial hearing (known as a case status review) within the first 90 days after the complaint was filed. Case status reviews will help ensure investigations are conducted expeditiously and will provide staff an opportunity to discuss possible resolutions with individuals being investigated. 

The executive director will give an overview of the case status reviews to the commission at its regular meetings. Following further investigation, the director has the option of initiating enforcement proceedings and taking cases to the commission for hearing. Cases may also be resolved by stipulation, subject to approval by the commission. The commission’s penalty authority is $10,000 per violation. 

Citizen Actions
The new law preserves the rights of a member of the public to bring a lawsuit alleging violations of RCW 42.17A on behalf of the state, but only after the PDC has had a chance to assess the complaint. If the PDC hasn’t resolved a complaint, opened a formal investigation or referred the matter to the Attorney General’s Office within 90 days, a member of the public can file a 10-day notice with the PDC and Attorney General signaling his or her intent to go to court.

Questions?
This guide is intended as a resource to aid compliance with ESHB 2938, and is not intended to replace applicable RCW or WAC provisions. The PDC encourages the public to consult ESHB 2938 and the emergency rules adopted by the Commission to implement ESHB 2938, which are available at our website: www.pdc.wa.gov/ESHB_2938_news

PDC staff are available to answer questions. Email pdc@pdc.wa.gov with your questions or suggestions for how we might continue to improve our filer assistance resources.