Secretary of State confirms legal right to review recall signatures

Note the recall signatures were filed January 8, and citizens have 40 days to file a protest challenging their validity. That would be until February 17. On January 27, the city council prematurely put the recall election on the April 7 ballot, disregarding the legal right of citizens to protest, and creating a likely mess. What if the protest proves the signatures were insufficient? Does that invalidate the election? Does the city tell citizens "Your votes don't count?" Do the recallers still have the right to collect added signatures? Will City Hall allow a new protest of those signatures? If sufficient, will that lead to a second election? Will the recallers have to collect double the signatures for a special election, as required by the city charter?  WHAT A MESS!  All because City Council (7-to-2) wants to railroad Helen Collins into retirement. Why? She is too conservative for them and won't go along with Council's corrupt and illegal policies. Read more under Illegal Election menu items.

Subject:     Your questions regarding the applicability of certain Colorado Springs campaign finance and elections ordinances
Date:     Fri, 23 Jan 2015 17:59:22 +0000
From:     Troy Bratton <Troy.Bratton@SOS.STATE.CO.US>
To:     'taxcutter@msn.com' <taxcutter@msn.com>
CC:     Wayne Williams <Wayne.Williams@SOS.STATE.CO.US>

Mr. Bruce,

First, I apologize for the delayed response. We are in receipt of your questions and want to provide you with a brief response. As a preliminary matter, please understand that we do not give legal advice and nothing in this email is binding on the Secretary of State or the office. Rather, we are treating your email as a request for an advisory opinion. Additionally, the subject matter of your questions falls entirely within Colorado Springs’ municipal code and this office has no authority to interpret or enforce that code. It is unusual for us to take steps to interpret local provisions, but we have done so here in an effort to be responsive to your request. As such, you may want to consult an attorney if you require more specific answers.

Though more in-depth responses are included below, here are your two basic questions and short answers to each:

1.Does the Colorado Springs City Code require an entity to disclose money spent on a recall effort before it files a recall petition with the City Clerk? (Notably, you state that you don’t see any such exemption in article XXVIII of the Colorado Constitution.)

Short Answer:   No. An issue committee (the entity you describe in your email) need not file disclosure statements until it accepts or expends more than $200 during the election cycle. Because the City Code classifies a recall election as a “special election,” the election cycle does not begin until the date the city council calls the election. As such, an issue committee that accepts or expends more than $200 need not file disclosure statements before the election is called. And because Colorado Springs is a home-rule municipality, the provisions of Article XXVIII of the state constitution do not apply.

2.Does any law allow access to, and a challenge of, signatures on a recall petition and, if so, what are the related time frames?

Short Answer:   Yes. Except for the time period during which the City Clerk is examining the sufficiency of the recall petition (which may not exceed 30 days), the petition is a public document. Also, any person may file a protest within 40 days after the petition is filed. Again, because Colorado Springs is a home-rule municipality, state law does not apply.

*Campaign Finance Disclosure Requirements*

/An issue committee need not file disclosure statements until it accepts or expends more than $200 after the City Council calls the election./

The definition of the term “ballot question” in the Colorado Springs City Code includes matters “related to the recall of an elected official.” Further, the Code defines “issue committee” as:

Any person, other than a natural person, or any group of two (2) or more persons, including natural persons: a) that has a major purpose of supporting or opposing any ballot question or b) that has accepted or made contributions or expenditures in excess of two hundred dollars ($200.00) to support or oppose any ballot question. The term does not include political committees or candidate committees. An issue committee shall be considered open and active until affirmatively closed by the committee.

The Code requires an issue committee to file a disclosure statement “once it has accepted contributions of two hundred dollars or greater during the election cycle or has made expenditures of two hundred dollars or greater during the election cycle.” For a recall election, the charter defines the election cycle as “the period between the date the City Council calls the special election and the date that is thirty-one days after the election. (A recall election is a special election because it is not repeatedly held on the first Tuesday in April of odd-numbered years.)

So, when the definitions of “ballot question,” “issue committee,” and “election cycle,” are read in conjunction with the Code’s disclosure requirements, it becomes clear that an entity supporting or opposing a recall election need only file disclosure statements if it accepts or expends more than two hundred dollars during an election cycle. Because the election cycle for a recall doesn’t begin until the City Council calls the election date, the entity does not qualify as an issue committee before the election date is set.

/The campaign finance disclosure requirements in the Colorado Constitution do not apply to the City of Colorado Springs./

In your email, you state with regard to disclosure requirements that you “don’t see that exemption in Article XXVIII or anywhere in state law.” But Article XXVIII’s disclosure requirements are not relevant here, as Colorado Springs is a home-rule municipality.

Section 1-45-116, C.R.S., states specifically that “[t]he requirements of article XXVIII of the state constitution and of this article shall not apply to home rule counties or home rule municipalities that have adopted charters, ordinances, or resolutions that address the matters covered by article XXVIII or this article.” Because Colorado Springs is a home-rule municipality that has adopted a City Code with specific campaign finance provisions, state law does not apply. (See the attached Colorado Court of Appeals case stating the same.)

*Recall Petition Signatures*

In Colorado Springs, recall petitions are public documents and may be inspected by members of the public at any time after filing with one exception: the Colorado Springs City Code states that “[d]uring the period a petition is being examined by the City Clerk for sufficiency, the petition shall not be available to the public. Such period of unavailability shall not exceed thirty (30) days.” /Section 5.1.511 B./ So, after the clerk verifies the sufficiency or insufficiency of the petition, you may examine the signatures.

Also, if you wish to protest the sufficiency or any other aspect of the petition, you may do so within 40 days after the petition is filed with the clerk. Specifically, the Code states:

A protest in writing, under oath, to a petition may be filed in the Office of the City Clerk by any registered elector of the City, within forty (40) days after the petition is filed with the City Clerk. The protest shall set forth with particularity the grounds of the protest and the names, if any, protested. The City Clerk shall mail a copy of the protest to the Petition Committee. The City Clerk shall also mail to the protestors and to the Petition Committee a notice fixing a time for hearing the protest not less than five (5) days nor more than fifteen (15) days after the protest is filed. /Section 5.1.511 A./

*State Law*

Finally, despite the fact that your questions fall squarely under the campaign finance and petition provisions of Colorado Springs’ City Code, we wanted to provide you a brief analysis of applicable state law. Similar to the Colorado Springs Code, under state law, a recall question is a ballot question. But unlike in Colorado Springs, an entity becomes an issue committee when it has a major purpose of supporting or opposing the recall question, or when it accepts or expends more than $200 to support or oppose the recall question.

Further, under state law, an issue committee whose purpose is to recall an officer must register within ten days  accepting or spending more than $200 to support or oppose the recall. The issue committee must then file disclosure reports within fifteen days of registering. So the question then becomes, “when does the recall matter actually become a ballot question?”.

Section 1-45-108 (7), C.R.S., states in relevant part:

A matter shall be considered to be a ballot issue or ballot question for the purpose of determining whether an issue committee has been formally established, thereby necessitating compliance with any disclosure and reporting requirements of this article and article XXVIII of the state constitution, at the earliest of the following:

(IV)        A petition concerning the [recall] has been circulated and signed by at least one person; except that, where a [recall] becomes a ballot question or issue upon such signing, any person opposing the [recall] shall not be considered to be an issue committee…until one such person knows or has reason to know of the circulation; or

(V)          A signed petition has been submitted to the appropriate officer in accordance with law.

In sum, in a hypothetical state recall election, an issue committee supporting a recall must register and subsequently disclose once it circulates a petition and obtains one signature. An issue committee opposing a recall must register and subsequently disclose once a member of the committee knows or has reason to know of the circulation. In any event, an issue committee must register once the petition is filed with the appropriate officer.

Mr. Bruce, I hope you find this information helpful. Again, because Colorado Springs is a home-rule municipality that has adopted a City Code addressing the subject matter of your questions, this office has neither the authority or jurisdiction to interpret or enforce the local recall and campaign finance provisions. But we did want to be responsive and attempt to answer your questions, both under the municipal code and as a hypothetical state-level recall election. If you have any additional questions or require more information, we recommend you contact an attorney or your city clerk.

Thank you.
_____________________________
Troy Bratton
Legal and Policy Manager
Colorado Secretary of State’s Office
1700 Broadway, Suite 200
Denver, Colorado 80290
(303) 869-4904
troy.bratton@sos.state.co.us