State cracks down on campaign reporting
Secretary of State considers options to boost compliance as efforts to collect fines catch some candidates off guard
All Desmond Tome wanted from the Secretary of State’s Office was a little leniency.
The campaign manager for former Navajo Nation President Ben Shelly in Shelly’s failed bid for a House of Representatives seat in last year’s Democratic primary, Tome had missed two campaign reporting deadlines that resulted in $7,600 in fines.
“It’s more money than we spent on the campaign,” Tome said in an interview.
Tome and Shelly protested the fines and entered into arbitration with the Secretary of State’s Office, which argued through its attorney that Shelly had been given a chance to voluntarily comply and was required, “as a candidate for office,” to follow state law.
“They were very steadfast about it,” Tome recalled. “The new secretary and her deputy, there was just no leniency whatsoever.”
Shelly finished last in a four-way race. He also lost the appeal and was ordered to pay the entire amount — illustrating the beginnings of a crackdown on violations of the Campaign Reporting Act under Secretary of State Maggie Toulouse Oliver, a Democrat who has been in office since December. Fines collected by the secretary of state go to the state’s general fund.
While fines for campaign reporting violations have quadrupled from 201617, records for previous years, including under disgraced former Secretary of State Dianna Duran, are unavailable. Duran, a Republican, resigned from office and then pleaded guilty to felony corruption charges for embezzling campaign contributions.
Former Secretary of State Brad Winter, an Albuquerque city councilor appointed to the job by Gov. Susana Martinez after Duran resigned, did not return messages seeking comment. But he showed leniency in at least one case while he was in office: In October 2016, Winter waived an
unspecified amount of fines for Shelly for a different late filing.
One employee of the office said it’s impossible to know how much enforcement has changed.
“We don’t have any documents responsive to showing any type of comparison,” said Kari Fresquez, elections director and chief information office for the secretary of state. “Anything that goes back too far back, it’s hard to even have any confidence of whether it really is still an outstanding fine. They’re outdated spreadsheets, so I don’t want to send you things that are potentially inaccurate or outdated.”
Fresquez declined to say whether the sloppy record keeping was a reflection on Duran, a Republican who twice was elected secretary of state.
“I think it’s just better to look forward than fret about the past,” Fresquez said.
According to an investigation by the Farmington Daily Times, Duran collected only 4 percent of the nearly 2,000 fines her office assessed during the 2012 and 2014 primary and general elections. The analysis also found that Duran waived about one-third of the fines and hadn’t collected another 62 percent.
Collections increased to about 12 percent this year under Toulouse Oliver, who told state lawmakers recently that voluntary compliance was up.
“We began undergoing arbitrations in the last year over fines and penalties that have been levied by our office,” Toulouse Oliver said during a meeting in August of the Legislative Courts, Corrections and Justice Committee.
“We’re also seeing those fines and penalties start to actually come in where, in the past, they may be levied and then they may be ignored for long periods of time,” she said. “We’re actually seeing a little bit of trickle into state coffers from those late and incorrect reports.”
While the Secretary of State’s Office says it doesn’t have accurate records to back up Toulouse Oliver’s claim, her spokesman said his boss was speaking anecdotally.
“I believe Maggie was speaking in general terms about a greater commitment to enforcing fines,” Joey Keefe said in an email. “Elections staff have expressed a noticeable shift in terms of candidates, parties, and PACs [political action committees] all being more willing to pay their fines before arbitration is even necessary given Maggie’s harder stance on campaign reports.”
While the Secretary of State’s Office has collected thousands of dollars in campaign reporting fines during the past two years, including more than $20,000 in arbitration-ordered fines, documents obtained under an openrecords request show more than $70,000 in outstanding fines.
Keefe and Fresquez said the secretary is considering her options.
“We can chase these people again and possibly offer a payment plan,” Fresquez said. “I know some of the dollar amounts are kind of high, so maybe we’ll get higher compliance if we offer them a monthly payment plan.”
Frequez said another option is to refer all the candidates or groups with outstanding fines to the Attorney General’s Office.
“Or, I suppose we could file a judgment in court directly to receive those fines,” Fresquez said. “We are kind of at a point where there’s a fork in the road of which path may be the best to proceed down in order to try to get a higher compliance on those outstanding fines.”
Collection of outstanding fines isn’t always easy, Fresquez said.
“From what we hear when we’re taking phone calls from a lot of these folks, they’re not necessarily familiar with the law,” she said. “Our fine letters shock them, and they don’t know how to move forward. They don’t have a thousand dollars. I think they’re hoping and looking for a way out and a way to get compliant, but they’re feeling stuck with this hefty fine.”
While $70,000 is a lot of money, and “we want to get every dime that’s due,” Fresquez said, “I feel like it’s going to take a while to get there.”
Keefe said candidates with outstanding fines will have to pay up before running for statewide office again.
“According to state statue, if these candidates are running again and they have not paid their fines, they cannot be on the next general election ballot,” he said. “That’s something that we’re really trying to stress to people.”
Still, Fresquez and Keefe said the list of candidates and groups who are out of compliance is low compared to the number in compliance.
“I know this isn’t a perfect situation, but in comparison to those who are in compliance at the moment, this is pretty much fractional,” Keefe said.
“The fine is on the candidate, so I think they also need to get serious about complying with the law when they choose to be a candidate,” Fresquez said.
Fresquez said the Secretary of State’s Office is working to make compliance with the Campaign Reporting Act easier. Last year, the office implemented a compliance tracking system, though “we still see even a deficiency in that methodology of tracking.” Fresquez said the office will make another request in the next legislative session for a modernized campaign finance system that includes compliance tracking. The budget request is for $985,000, she said.
“This will be the second year that the current secretary has asked for funding for a modernized campaign finance system,” Fresquez said. “That will really help us keep tabs and help filers understand, too, when they fall out of compliance.”
Tome, Shelly’s campaign manager, said the campaign tried to file campaign finance reports on time but encountered various obstacles, including an “extremely unfriendly” website. In addition, Tome said, the Secretary of State’s Office was sending letters threatening fines to the wrong address.
“The Secretary of State’s Office was going off of the information furnished to them by the McKinley County Clerk’s Office, the voter clerk office, which was antiquated information,” he said. “When Ben Shelly went to Santa Fe sometime in February or March 2016 to file his declaration of candidacy for House District 69, he put all the current information on that candidacy for declaration.”
The arbitrator in the case seemed to acknowledge that letters from the Secretary of State’s Office had gone to the wrong address but noted that Shelly still had not filed his past-due campaign reports by the time of the arbitration hearing.
“Using October 5, 2016 as an end date, the third primary report was 88 working days late,” the arbitrator wrote in his decision. “A penalty of $50 per working day thus totals $4,400. The fourth primary report was 64 working days late for a total penalty of $3,200.”
Tome said he and Shelly “painstakingly went through the process to appeal the fines,” hoping for a sympathetic secretary of state.
“I thought, especially when we had gone [from Thoreau] to Santa Fe to make a plea, for some kind of understanding, but there was none, and that was a little surprising to me,” he said. “But of course, Maggie, however you say her name, she is a brand-new elected official. She wants to show that she’s doing it right, and I respect that. I respect that she’s doing her job, and she’s doing it to the letter of the law.”