OFFICE OFTHE COMMONWEALTH'S ATTORNEY
COUNTY OF ALBEMARLE DENISE Y. LUNSFORD co\!!lo\\r [AI-TI] s .\Tl oRt\ E\ PHONE:
DARBY G, LOWE
DEPL r\', ( Onl\lON\\'t:ALTH S ATTOR|EY
Kristina Stoney, Senior Assistant Attorney General Office of the Virginia Attorney General 900 East Main Street Richmond, Virginia 23219
Virginia State Board of Elections ATTN: Chris Piper, Election Services 1100 Bank Street
Richmond, Virginia 23219
Michael Menefee, Program Manager Virginia Department of Agriculture Offlce of Charitable & Regulatory Programs
P.O. Box 1163
Richmond, Virginia 23218
Complaint regarding Charlottesville Bypass Truth Coalition
lt Mav Concern:
reviewed Ken Boyd's letter dated october 30,2013, addressed to the Internal Revenue Service, Office of the Attorney General, Virginia State Board of Elections, and Virginia Department of Agriculture. The matter was forwa rded to me for review pursua nt to Virginia Code Annotated Sections 24.2-946.3 and 24.2-1019.1
I have received and
During our initial conversation, Mr. Boyd and ldiscussed an assertion that others (unnamed) had questioned
whether I might have a conflict of interest rega rding this situation. As ldisclosed to Mr. Boyd, ldonothavea position on the western Bypass. Neither I nor anyone in my household has made contributions to the
Charlottesville-Albemarle Transportation Coalition, lnc., nor have we publically supported either side in this debate. Because Mr. Boyd was unable to provide me with specifics, any discussion or contemplation of a perceived conflict would involve pure speculation on my part. In the end, Mr. Boyd indicated that he felt that
would render a fair decision on this matter. Because Mr. Boyd is the complainant in this matter and I am aware of no actual or potential conflict, I have proceeded to investigate and respond to the complaint.
.IIO EAST HICH STREET. CHARLOTTESVILLE. VIRCINIA 22902
Pursuant to Mr. Boyd's letter, my discussions with him, and his report to Detective Elise Espinoza of the Albemarle County Police Department, it is my understanding that Mr. Boyd is concerned regarding advertising by the charlottesville Bypass Truth coalition prior to the November 5, 2013 General Election. Specifically, he requested an "investigation of the tax and registration status of the ,Charlottesville Bvpass Truth Coalition'." As Commonwealth Attorney for Albemarle County, violations must be of Virginia,s campaign Finance Disclosure Act alleged to have occurred in Albemarle county matter is of this my review letter, his reporied to me. Although Mr. Boyd sets forth several questions in law Virginia of limited to a determination of how and whether to proceed with regard to violations
which are or may be criminal in nature. lnvestigation
of the charlottesville-Albemarle Transportation him, Detective Espinoza and I met with representatives
coaIition,Inc.(,,cATco,,).AdditionaIlY,lreviewedadvertisementsthatwerep|acedinVariousmedia level, and information provided by cATco Finally' outlets, filings made both loca ;and on the state of such with the Virginia State Board of reviewed state statutes and discussed the requirements of my investigation is set forth more fully below' Elections. Information concerning the specifics
A 3' 1988' as a Virginia non-stock corporation corporatlon the that state corporation commission reveals review of the onlin" records ot ihe virginia Certificate in the 11' 2013' CATco.filed a Fictitious Name currently is in good standing O" i"pt"tJ"t
August CATCo was incorporated on or about
A|bemar|ecountycircuitcourtsettingforthitsintenttoconductbusinessas,,Char|ottesvi||eBYpass known as the charlottesville i-n hi, l"tt"r, there is no corporation Truth coalition.,, As Mr. Boyd ,t.t", this name ln filing the has decided to do business usinB Bypass Truth coalition. rn,tt"j,inrco FictitiousNamecertificate,cATcosatisfieditsobIigation,pursuanttoVirginiacodeAnnotatedSection 59.1-69,tonotifythepublicthatitwouldbedoingbusinessunderadifferentnameSpecifically'thatit This filing is publicly aypassiruth coalition (the "coalition") would transact business as chJoitesvitte and allows the public iif" with the Albemarle County circuit court o" r"iora, ot review a by discoverable cATco'' do business as the coalition' specifically' to determine the entity and p"""tt *tt"
advertising which contracted for radio and television Thereafter, in late october 2013' CATCo General 2013 November 5, 2013, the date of virginia's ."0 wourd run from rate october "-p a "^ r",. uv Mountain High Media for "Bypass coalition" and by ioniru.i"o was aaue.tising This Erection. Larie, President and Treasurer of CATCo George
I searched the internet for radio' ln undertaking to Investigate this matter' page titled "charlottesville n.u" f!.rrplaced by cATCo. on the Facebook advertisements thu, described on the Facebook an apparent radio advertisement Bypass Truth coalition," rtounJfinlsto in C'ville or The photo of what appears to be a print advertisement a as well as Spot" "Radio page as
television' or print
simplification For the purposes of clarity and
b refer to both '"rrr h^'6rrtAr hereafter refpr will
the Coalition as CATCo'
located what appeared to be a television advertisement on YouTube. The precise wording of the various advertisements is important to my analysis. Accordingly, the language is set forth below.
The voice over for the apparent television advertisement stated as follows: For decades, VDOT studies have shown the proposed Western Bypass won't solve our traffic problems on Route 29. Duane Snow and Rodney Thomas voted to bring the proposed Bypass within 1,800 feet of six local K-12 schools. We need, and our children deserve, a cheaper, safer, and more effective solution. Snow and Thomas reversed decades of policy under darkness, near the stroke of midnight. On November 5, exercise your right to vote in the light of day. We can pursue an alternative to ease traffic on 29 and make our kids proud to call Albemarle County
home. Paid for by the Charlottesville Bypass Truth Coalition.
The Facebook link identified as "Radio Spot" stated: Thanks to a midnight vote thousands of parents across the region are wondering why their kids and every student who will follow in their footsteps face construction of a four lane highway within 600 yards of their schools. Some children would go their whole career, K-12, within the halo of exhaust from the proposed Western Bypass. Even VDOTstudies saythe proposed Bypass won't help ease traffic on Route 29. What we stood to gain from the back room deals Snow and Thomas made in Richmond are anything but clear. The good news is this road is not a done deal. We can take back the power to shape our community. Let's improve 29 where it stands, the cheaper, safer, more effective solution. On November 5th, lets hold Duane snow and Rodney Thomas accountable for their actions. This isn't about politics. lt's about policy. For Charlottesville and Albemarle's future, vote for new leadership on November 5th, people who look to the future, not the past, to solve the challenges facing our community today. Learn more about where the candidates stand at bypasstruth.com. Paid for by the Cha rlottesville BVpass Truth Coalition.
Finally, the print advertisement stated as follows: Take action at the polls on November 5th. The Western Bvoass is not a done deal. For decades we have all known that the proposed Western Bypass isn't a bypass at all. Nor will it improve traffic on Route 29. Even VDOT says so. You can help our community take the first step toward finding a long term alternative solution that serves Charlottesville's needs. Let's hold each other accountable in finding the best traffic solutions for our community. Learn more about where your candidates for supervisor stand on the Bypass.
www.facebook.com/bypass truth or www.bvpasstruth.com
The question I must address is whether CATCo is in violation of the Virginia Campai8n Finance Disclosure Act of 2006 with regard to the above advertisements. My analysis assumes that CATCo contracted with local media outlets for advertising and CATCo spent an aggregate of more than 5200 in placing the advertisements.3 Based on my contact with the State Board of Election ("58E") and the Albemarle Electoral Board, I find that no Independent Expenditure Report, a document available on the
The sales order for WCNR\WINA\WQMZ alone is for a total of 56,048.00
for 138 spots over
a two week period.
website, was filed by CATCo. Further, based on documents provided by CATCo a nd review of the relevant statute and records available online from the Virginia Department of Agriculture and Consumer Services, it appears that CATCo is exempt from annual reBistration with that Department. Finally, I assume that CATCo is properly organized under 501(cxa) of the Internal Revenue Code and documents provided by CATCo indicate as much. My analysis does not address whether CATCo is in good standing with the IRS or other matters related to federal law.
Pursuant to the Campaign Finance Disclosure Act of 20054 (the "Act"), a persons, defined as an individual or corporation, making independent expenditures totaling S200 or more during an election cycle must maintain records and report "independent expenditures made for the purpose of expressly advocating the election or defeat of a clearly identified candidate." Reports are due the earlier of 24 hours from the time the funds were spent or 24 hours from when material is published or broadcast.6 To phrase the matter differently, if CATCo spent more than 5200 during the 2013 election cycle expressly advocating the election or defeat of a candidate, then CATCo must report the expenditure to the Albemarle Electoral Board. Excluded from the filing and reporting requirements of the Act is a 501(cX4) corporation which provides information to voters to the extent that such a corporation "does not advocate or endorse the election or defeat of a particular candidate".T Accordingly, a 501(cX4) corooration which does advocate or endorse the election or defeat of a candidate must report the
The terms used in the Act have very precise definitions. A "contribution" is money, services or other thing of value provided to o condidate, politica I committee or person for the purpose of any expressly advocating the election or defeat of a candidate.E An exa m ple of a contribution includes funds provided to o condidote tor use in his/her campaign or the total value spent for goods and services to host an event for a candidate. Such contributions must be reported by the candidate or political committee. An "expenditure" is money, services, or any other thing of value disbursed by o condidote, politicol committee or person for the purpose of expressly advocating the election or defeat of a candidate. Examples of expenditures include a candidate's purchase of yard signs or television
" Virginia Code Annotated 24.2-945 et seq.
do not find that the Coalition or CATCo is a Political Action Committee. Having been in existence since 1988, find no evidence to support the argument that its primarv purpose is or was to advocate the election or defeat of
clearly identified candidates. This analysis may change, however, based on future activities of the organization. Contrary to the assertions of CATCo in its October 31, 2013 response to Mr. Boyd's complaints, however, this
analvsis is not limited to whether CATCo is a Political Action Committee.
Vlrginia Code Annotated Section 24.2-945.2. Virginia Code Annotated Section 24.2-945.f8.
Aduocacy on some social media sites likeTwitteror Facebook may not involve the disbursement offunds and,
therefore, may not be considered an expenditure under the Act.
advertising. Such expenditures must also be reported by the candidate or political committee. An "independent expenditure" is an expenditure made by a person, corporation, or committee that is not controlled by, coordinated with, or mode with the outhorization of o condidote. For example, if an organization purchased radio advertisements advocating the election of a particular candidate without the candidate's agreement or authorization, the organization is required to file an Independent Expenditure Report. Conversely, an organization which engages in advocacy related to a particular issue, and which does not advocate or endorse the election or defeat of a particular candidate, may not be required to report such expenditures pursuant to the Act.
The question then become whether CATCo's advertisements in late October and early November expressly advocated the election or defeat of a clearly identified candidate. I find that at least one of the advertisements, the "Radio Spot," advocated or endorsed the election or defeat of pa rticula r candidates. The "Radio spot," located in a link from the Facebook page, specifically names Duane Snow and Rodney Thomas. Additionally, the advertisement asks listeners to "hold ltheml accountable for their actions" and "vote for new leadership." In terms of advocating the defeat of particular candidates, an advertisement could hardly be more specific. Although the advertisement does not specifically name Liz Palmer or Brad Sheffield, candidates for the offices held by Snow and Thomas respectfully, the advertisement clearly advocates for "new leadership" and asks that Snow and Thomas be held accountable for previous actions. Accordingly, funds spent for the "Radio Spot" are independent expend itures.e
Contrast the "Radio Spot" with the print advertisement. The print advertisement is more closely akin to what might be described as issue advocacy. That print advertisement provides information to readers/voters about whether the Bypass is a "done deal," asks that readers engage in the dialogue by holding each other accountable, and refers readers to a website for information about the positions of ca ndidates and suoervisors.
Having determined that the "Radio Spot" advocated or endorsed the election or defeat of a particular candidate, I find that it was incumbent on CATCo to file an Independent Expenditure Report. Forms for such filings are found on the State Board of Election website and require only the name ofthe candidate(s) supported or opposed and the amount of the expenditure. Reporting of income or the identity of organizers, a specific complaint of Mr. Boyd, is not required. Failure to file a report or the late filing of a report is a violation of the Act which may result in a civil penalty. Willful violation of the Act is a class one misdemeanor.ro
then turn to the issue of whether the violation was "willful" as a matter of Virginia law. In matters of criminal law and prosecution, the term "willful" is a term of art used throughout the Code of Virginia. An act is willful if done with a bad purpose, or without justifiable excuse, or without ground for believing it is lawful. lt is an act done "designedly, intentionally or perversely." Ferquson v.
There is no information to suggest or support an argument that the expenditures by CATCo for advertisements were coordinated with or authorized by a particular candidate.
virginia Code Annotated section 24.2-953.
Commonwealth, Record Number 0547 -06-3 (Va. App. 2/27/07). A willful act is one that is intentional, or knowing, or voluntary and, in the criminal context, Benerally means an act done with a bad purpose without justifiable excuse and without grounds for believing that the act was lawful. See, e.p., Lambert v. Commonwealth.6 Va. App.360,362 (1988). Correct application of the term will "generally depend upon the character of the act involved and the attending circumstances." ld.; Smith v. Commonwealth, 282Va.449,455 (2011). The mere fact that a required act was not done does not, in this context, give rise to a presumption that the omission was willful. The Act creates a rebuttable presumption that the violation is willful if CATCo had received notice of a need to file and thereafter failed to file the Independent Expenditure Report. CATCo received no such notice."
In makinB my determination of whether to prosecute a violation, I must consider whether the Commonwealth could likely prove that CATCo's violation of the Act was willful. Inmattersof criminal law, the Commonwealth must prove a violation of law beyond a reasonable doubt. While intent may be proved by circumstantial evidence, such proof must exclude all reasonable hypotheses of innocence. I find that in this case on these facts the Commonwealth could not meet its burden and, therefore, decline prosecution. I focus on whether CATCo's failure to file an Independent Expenditure Report was done with the requisite willful intent - whether CATCo had a bad purpose or was without grounds for belief that their failure to file was lawful.
In this consideration, I reviewed the letter and attached documentation provided by CATCo and discussed its failure to file the Independent Expenditure Report with representatives. My investigation revealed CATCo's attempt to negotiate the various requirements of the Act, an apparent desire to comply with the requirements of the various laws applicable to the situation, and a belief that their conclusion was legally accurate. While ignorance of the law is not a legal excuse for a failure to follow the law, in the matter at hand I do not find that CATCo's violation of the Act was done without grounds for its belief that the failure to file the Independent Expenditure Report was lawful.
More fundamental to my analysis was the consideration of whether there was a bad purpose, specifically, whether CATCo was, as Mr. Boyd alleges, attempting to conceal "the identities of its organizers and funders." This consideration is important becausethe effectofthe requirements of the Act is to provide transparency in the financing of campaigns and, therefore, confidence in the election process. Preservation of the integrity of this process is vital to the community's trust in its outcome.
The Independent Expenditure Report which CATCo should have filed requires disclosure of the entity making the expenditure and its contact information. The report also includes a certification assuring that the expenditures were "independent" and not at the request or suggestion of a candidate. Finally, the report requires information about the candidates supported or opposed as well as a description and the amount of any expenditure. The report does not require a disclosure of contributors. The filing of the report would have provided no additional information than that which CATCo would have known was already available publicly. The advertisements included statements that they were paid for by the Coalition. A cursory search of the records available in the Albemarle County Circuit Court Clerk's Office revealed that the Coalition was an assumed or fictitious name being used by
Vir8inia Code Annotated Section 24.2-953D. No such notice was sent in this case.
CATCo. A search of the online records of the State CorDoration Commission established the officers and directors of CATCo. Records provided by Mr. Boyd, which he obtained from the media outlets, revealed the cost of such advertisements. The fact that information required on the Independent Expenditure Report was readily, albeit not conveniently, available to the public from other sources is a strong indication of whether CATCo was willfully attempting to obscure a process that is intended to be transoarent. lfind it was not.
As a result of the foregoing analysis, I find that the Commonwealth could not likely prove bevond a reasonable doubt that CATCo's violation of the Act was willful. lncumbent in my analysis is a carefully weighted consideration of the benefits and likely outcome of a potential prosecution and the likelihood of CATCo complying with the requirements of the Act on notice of a violation. In light of these considerations and the foregoing analysis it is my conclusion that the more responsible approach is to afford CATCo opportunity to comply with the provisions of the Act.
For the foregoing reasons, ldecline prosecution of this matter. Having made this determination, it should be noted that my analysis is fact and time specific and limited to the current allegation of violations. Future allegations ofviolations against CATCo or others may result in a different conclusion. Further, I hereby recommend and request that the Albemarle Electoral Board send written notice of this failure to file to CATCo by certified mail, return receipt requested to its most recent mailing address pursuant to virginia code Annotated section 24.2-953(D).
Thank you for your attention to this matter and please do not hesitate to contact me if you have any questions.
Ken Boyd Lloyd Snook, Esq. Richard J. Washburne