State Ethics Commissioner v. Moore

McMurray, Presiding Judge,

dissenting.

I respectfully dissent as I do not agree with the majority’s view that a candidate for public office or public office holder covered by the Georgia Ethics in Government Act may dodge financial disclosure laws by delegating reporting responsibility to a campaign treasurer who purportedly does not recognize contributions the candidate knows must be reported. It is my view that Georgia’s Ethics in Government Act places ultimate responsibility for accurately reporting information regarding campaign contributions upon candidates applying for public service.

There is no dispute that ample evidence supports the finding of the State Ethics Commission that Karen F. Moore failed to disclose campaign contributions she knew had to be reported under OCGA § 21-5-30 (d). However, the majority affirms reversal of this ruling based on the perception that OCGA § 21-5-34 (a) (3) does not “impose a penalty on Moore for the conduct of her campaign treasurer in filing an inaccurate report.”5 The majority points out that this Code subsection allows either a candidate for public office or the candidate’s campaign treasurer to submit the required disclosure report and thus reasons that Moore was relieved of any obligation to “personally verify or review the contents of that report” because the report was filed by her campaign treasurer. I cannot go along with this *241logic as it allows avoidance of the Ethics in Government Act via delegation (to a subordinate) of the duty imposed by OCGA § 21-5-30 (d).

“ ‘ “It is, of course, fundamental that ‘the cardinal rule to guide the construction of laws is, first, to ascertain the legislative intent and purpose in enacting the law, and then to give it that construction which will effectuate the legislative intent and purpose.’ Ford Motor Co. v. Abercrombie, 207 Ga. 464, 467 (62 SE2d 209) [(1950)]. . City of Jesup v. Bennett, 226 Ga. 606, 608 (176 SE2d 81) (1970).’ Wall v. Board of Elections of Chatham County, 242 Ga. 566, 573-574 (250 SE2d 408) (1978). Although ‘the legislative intent prevails over the literal import of words’ (Drake v. Thyer Mfg. Corp., 105 Ga. App. 20, 22 (123 SE2d 457) (1961)), ‘where a . . . statute is plain and susceptible of but one natural and reasonable construction, the court has no authority to place a different construction upon it, but must construe it according to its terms. (Cits.)’ Rayle Electric Membership Corp. v. Cook, 195 Ga. 734, 735 (25 SE2d 574) (1943). ‘In other words the language being plain, and not leading to absurd or wholly impracticable consequences, it is the sole evidence of the ultimate legislative intent.’ Caminetti v. United States, 242 U. S. 470, 490 (37 SC 192, 61 LE 442) (1917); Samuelson v. Susen, 576 F2d 546, 552 (3d Cir. 1978).” Hollowell v. Jove, 247 Ga. 678, 681 (279 SE2d 430) (1981).

The Georgia General Assembly clearly states that the intent of the Ethics in Government Act is to require public disclosure of information which will allow “the public to determine whether significant private interests of public officers have influenced the state’s public officers to the detriment of their public duties and responsibilities. . . .” OCGA § 21-5-2. To this end, the legislature enacted OCGA § 21-5-34 (a) (3) which requires public disclosure of campaign contributions to a candidate for county office. OCGA § 21-5-3 (3). Such contributions exceeding $101 during a calendar year must be listed in a campaign contribution disclosure report. To avert circumvention of this reporting requirement, OCGA § 21-5-30 (d) provides that “[w]here separate contributions of less than $101.00 are knowingly received from a common source, such contributions shall be aggregated for reporting purposes.” However, the majority provides an avenue for averting the reporting requirements of OCGA § 21-5-30 (d) via a strained interpretation of the conjunctive word, “or,” in OCGA § 21-5-34 (a) (3).

According to the majority, the word, “or,” as applied in OCGA § 21-5-30 (d), means that a candidate for public office may avert responsibility under the Ethics in Government Act by simply delegating responsibility to an unknowing, ineffective or unscrupulous subordinate. In fact, the majority’s interpretation of OCGA § 21-5-30 (d) means that a candidate for public office is not even required to advise *242such a subordinate of facts the candidate knows must be reported. The majority justifies this position by stating that “[f]ine distinctions are drawn from section to section in the [Ethics in Government] Act regarding which persons are authorized to file the required campaign disclosure reports.” It is my view that this “nit picking” logic is unreasonable and that the majority’s reading of OCGA § 21-5-34 (a) (3) renders impotent the purpose of OCGA § 21-5-30 (d), i.e., to provide public access to information which will allow “the public to determine whether significant private interests of public officers have influenced the state’s public officers to the detriment of their public duties and responsibilities. . . .” OCGA § 21-5-2.

Decided July 15, 1994 Reconsideration denied July 29, 1994 Michael J. Bowers, Attorney General, Dennis R. Dunn, Senior Assistant Attorney General, for appellant. Lissner, Killian, Cunningham & Boyd, Robert P. Killian, for ap-pellee. Kathlyn McCluskey, amicus curiae.

*242The majority cites Schloth v. Smith, 134 Ga. App. 529, 530 (2) (215 SE2d 292), in support of the view that a strict reading of OCGA § 21-5-34 (a) (3) allows candidates to foist responsibility under the Ethics in Government Act. This reliance is misplaced. In Schloth, this Court dismissed a judicial candidate’s challenge to the results of an election, holding that the nominee failed to comply with the statutory time period specifically prescribed for contesting such elections. Id. at 530. This holding is not dispositive in the case sub judice as nothing in OCGA § 21-5-34 (a) (3) specifies that candidates for public office (such as Moore) are relieved of responsibility for accurately reporting “common source” campaign contributions. This Code subsection simply provides an avenue for a candidate’s delegation of the duty to file a campaign contribution disclosure report to a subordinate. Any view to the contrary, is inconsistent with the general rule that a principal may authorize an agent to act for the principal but may not thereby foist responsibility to act and the consequences of any failure to so act. See Sta-Power Indus, v. Avant, 134 Ga. App. 952, 956 (216 SE2d 897).

I would reverse the superior court’s order reversing the State Ethics Commission’s finding that Moore knowingly failed to comply with the reporting requirements of OCGA § 21-5-30 (d).

I am authorized to state that Presiding Judge Birdsong, Presiding Judge Beasley, and Senior Appellate Judge Harold R. Banke join in this dissent.

The majority improperly concludes that Moore “inadvertently failed to report certain ‘common source’ campaign contributions . . and that Moore’s campaign treasurer (Robert L. Crouch, Jr.) did not deliberately file false campaign contribution reports. The State Ethics Commission is the sole arbiter of the facts in resolving such issues, not a reviewing court. See Ga. Pub. Svc. Comm. v. Southern Bell, 254 Ga. 244, 247 (327 SE2d 726) (1985). In the case sub judice, the State Ethics Commission made no finding as to whether Moore “inadvertently failed to report certain ‘common source’ campaign contributions . . .” or whether her campaign treasurer knowingly filed false campaign contributions reports. The State Ethics Commission findings of fact simply provide that Moore reviewed the relevant list of campaign contributors; that Moore was aware that this list included reportable “common source” contributions; that “[o]n January 7,1992, Ms. Moore submitted her 1991 year end supplemental disclosure report[; that this] report was prepared by her treasurer, but not reviewed by Ms. Moore prior to filing]; that'this] report did not identify any contributions as being aggregated due to their having a ‘common source’ as defined under O.C.G.A. § 21-5-30 [and that a] subsequent March 23, 1992, amendment to this report also did not identify specifically any ‘common source’ contributions.” It is my view that the majority oversteps this Court’s authority by weighing evidence presented to the State Ethics Commission. However, assuming this Court has such factfinding power, my review of the administrative hearing transcript reveals evidence which authorizes a finding that Moore recklessly disregarded her duty under the Ethics in Government Act by failing to review two campaign contribution reports submitted on her behalf, by failing to make sure that her agent in charge of filing campaign contributions reports was fully apprised of facts she knew were necessary for filing an accurate report and by failing to make sure that her campaign treasurer was versed as to basic requirements of the Ethics in Government Act. This latter omission is demonstrated by Crouch’s testimony that he “wouldn’t know a common source contribution if he saw it. . , .”