State Ethics Commissioner v. Moore

Smith, Judge.

This is a discretionary appeal from an order of the Superior Court of Glynn County reversing a decision of the State Ethics Commission under the Ethics in Government Act, OCGA § 21-5-1 et seq. The Commission found that Moore, a candidate for a commissioner’s post in Glynn County, inadvertently failed to report certain “common source” campaign contributions as required by OCGA § 21-5-30 (d) on the financial disclosure reports made pursuant to OCGA § 21-5-34 (a) (3), and assessed a fine of $250 against Moore. The superior court reversed the Commission on the basis of an error of law, and we affirm. OCGA § 50-13-19 (h) (4). OCGA § 21-5-30 (d) provides: “Where separate contributions of less than $101.00 are knowingly received from a common source, such contributions shall be aggregated for reporting purposes. For purposes of fulfilling such aggregation requirement, members of the same family, firm or partnership or employees of the same person . . . shall be considered to be a common source.” This Code section must be read in pari materia with OCGA § 21-5-34, governing disclosure reports, which provides: “A candidate for county office or the chairperson or treasurer of such candidate’s campaign committee shall file the required campaign contribution disclosure reports with the election superintendent in the respective county of election.” OCGA § 21-5-34 (a) (3). The Commission found that Moore received contributions at a fundraising reception from several persons who were connected by blood, marriage or business contacts with others who attended the event. While Moore knew of these relationships, her campaign treasurer testified that he did not, and therefore did not list them as “common source” contributions. Contrary to the dissent’s assertions, the treasurer testified specifically that he was unaware of the family or business relationships of the contributors as well as the definition of what constituted a “common source” at the time he filed the report, and at least one member of the Commission noted that the treasurer did not intentionally violate the law.1

In its order, the superior court correctly noted the specific wording of OCGA § 21-5-34 (a) (3). Other provisions of the Act require that the candidate or officer make the required report. See, e.g., OCGA §§ 21-5-50; 21-5-34 (d), (e).2 In contrast, subsection (a) (3) permits financial disclosure reports to be filed by the candidate, a campaign chairperson or a campaign treasurer. In this case, the campaign treasurer filed and signed the reports. There was no evidence that Moore prepared or reviewed the reports, and there was no evidence that the campaign treasurer had any knowledge regarding the common source contributions.

“The election law is in derogation of the common law and must be strictly construed.” Schloth v. Smith, 134 Ga. App. 529, 530 (3) (215 SE2d 292) (1975). Moreover, when a statute imposes a fine or penalty, strict construction is required in favor of the person penalized. “The applicable rule of statutory construction is that forfeitures and penalties are not favored and statutes relating to them must be strictly construed, and in a manner as favorable to the person against whom the forfeiture or penalty would be exacted as is consistent with fair principles of interpretation.” (Citations and punctuation omitted.) Georgian Art &c. v. Gwinnett County Bd. of Tax Assessors, 211 Ga. App. 510, 511 (439 SE2d 687) (1993). While asserting the general rule that statutes should be construed in order to give effect to legislative intent, the dissent ignores the case law requiring that those who will be subjected to criminal or quasi-criminal penalties be given fair warning of what constitutes punishable conduct.3

Strictly construing the Act as we must, we find no authority under the language of OCGA § 21-5-34 (a) (3) to impose a penalty on Moore for the conduct of her campaign treasurer in filing an inaccurate report. A campaign committee or treasurer may make the financial report under that subsection, and there is no corresponding requirement that the candidate personally verify or review the contents of that report. Since the treasurer was authorized to file and sign the reports, and based his disclosure of common source contributions on his own personal knowledge, only he could be the “violator” for the purpose of imposition of penalties under OCGA § 21-5-6 (b) (14).

Contrary to the dissent’s assertion that a “dodge” was involved, the trial court and three members of the Commission noted that there was no evidence of fraud, intentional concealment, or misrepresentation on the part of Moore. We need not consider here whether an intentional or fraudulent effort to circumvent the provisions of the Act would produce a different result. Nor do we reach the issue of whether or to what extent the conduct charged to Moore was in fact a violation of the provisions of the Act.

The decision of Sta-Power Indus, v. Avant, 134 Ga. App. 952, 956 (216 SE2d 897) (1975), cited by the dissent, is wholly inapposite. That case involves the imposition of the civil sanction of dismissal for failure to obey a court order to respond to discovery under OCGA § 9-11-37. Moreover, it addresses the authority of an attorney to act on behalf of his client and the client’s obligation to provide information to his attorney. We find no authority in Sta-Power for extending the duties inherent in the attorney-client relationship to the relationship of candidate and campaign worker. If imputed knowledge is to be made the basis of a fine or penalty, the intent of the. legislature must be made abundantly clear. Such is not the case here.

The dissent’s complaint that the Commission made no official finding with respect to Moore’s campaign treasurer simply demonstrates the difficulties inherent in imputing, after the fact, quasi-criminal responsibility based on the actions of another who is not charged. Moreover, without such a finding of knowledge on the part of the treasurer, there is no basis upon which the charge against Moore can stand under the agency theory advocated by the dissent.

Disclosure of the sources of a political candidate’s campaign funds is an important part of the legislative purpose of the Ethics in Government Act, and the stated purpose of the Act is to ensure fair elections and protect the integrity of the democratic process by placing candidates under scrutiny during the campaign. OCGA § 21-5-2. However, as the dissent concedes, where the language of the statute is plain and unequivocal, judicial construction is not only unnecessary but forbidden. City of Jesup v. Bennett, 226 Ga. 606, 609 (2) (176 SE2d 81) (1970). We cannot, as the dissent contends, use a general statement of intent from another part of the Act to change the clear language and plain meaning of OCGA § 21-5-34, particularly in a case involving the imposition of a fine or penalty. See Caminetti, supra at n. 3.

The language of the statute is facially reasonable and capable of a logical construction. The legislature may well have determined that the elections for county office provided for under OCGA § 21-5-34 (a) (3) call for a different level of reporting requirements than the municipal and other elections provided for elsewhere in the Act. Fine distinctions are drawn from section to section in the Act regarding which persons are authorized to file the required campaign disclosure reports. We must assume, in the absence of evidence to the contrary, that these distinctions are intended by the General Assembly, and construe them as written.4 If there is a need for change in the filing requirements under OCGA § 21-5-34 (a) (3), the responsibility for clarification or correction of explicit provisions of the statute must rest with the legislature, not the courts. Snapper Power Equip. Co. v. Crook, 206 Ga. App. 373, 375 (1) (425 SE2d 393) (1992). We therefore must affirm the ruling of the superior court.

Judgment affirmed.

Pope, C. J., Andrews, Johnson and Blackburn, JJ., concur. McMurray, P. J., Birdsong, P. J., Beasley, P. J., and Senior Appellate Judge Harold R. Banke dissent.

1 The dissent complains that the Commission made no official finding with respect to the treasurer. This is not surprising because he was charged with no offense, was not a party to the proceedings, and was not required to refute a charge which was never made against him.

2 On motion for reconsideration before the superior court, the Commission attempted to present evidence of violation of a different provision of the Act, OCGA § 21-5-34 (e). As noted by the superior court, the relevant facts and the applicable statutory provision were not raised in the original charge nor argued before the Commission, and cannot be addressed upon petition for review under OCGA § 50-13-19 (c). Ga. Power Co. v. Ga. Pub. Svc. Comm., 196 Ga. App. 572, 573 (1) (396 SE2d 562) (1990).

3 In fact, Caminetti v. United States, 242 U. S. 470, 490 (37 SC 192, 61 LE 442) (1917), cited in one of the dissent’s cases, clearly holds that “the meaning of a statute must, in the first instance, be sought in the language in which the act is framed, and if that is plain . . . the sole function of the courts is to enforce it according to its terms.” 242 U. S. at 485. Contrary to the dissent’s position here, the Caminetti court declined to amend the plain language of a criminal statute, despite a differing general statement of intent in the preamble. 242 U. S. at 489-490. It is instructive to note that none of the other decisions cited by the dissent for its proposition involve the imposition of criminal or quasi-criminal penalties.

4 The Act has been amended on numerous occasions since its enactment, most recently in 1994. See Ga. L. 1994, pp. 258, 277. Had the legislature intended to change the provisions of OCGA § 21-5-34 (a) (3), it has had ample opportunity to do so. See State v. Peters, 213 Ga. App. 352 (444 SE2d 609) (1994).