SUBCHAPTER 10D – LOBBYING COMPLAINTS
SECTION .0100 – GENERAL
30 NCAC 10D .0101 SCOPE
The rules in this Subchapter execute the authority granted
to the State Ethics Commission pursuant to the Lobbying Law, G.S. 120C of the
North Carolina General Statutes regarding lobbying complaints.
History Note: Authority G.S. 120C-101(a); 120C-601;
Eff. June 1, 2014.
30 NCAC 10D .0102 COMPLAINT
rEQUIREMENTS
(a) Complaints shall be initiated in one of the following
ways:
(1) a written complaint. A form is available
on the Commission's website at www.ethicscommission.nc.gov
or by contacting the Commission at (919) 715-2071. The form is not mandatory
for a complaint to be valid and considered;
(2) an oral complaint. Oral complaints shall
be confirmed in writing by Commission staff;
(3) a complaint based upon information through
general notice. Commission staff or a member of the Commission may take
general notice of available information, even if not formally provided to the
Commission in the form of a complaint; or
(4) referrals from a local, state or federal
agency.
(b) Complaints shall include the following information:
(1) the name and other contact information for
the complainant;
(2) the name of the lobbyist, lobbyist
principal, or other individual(s) subject to the Lobbying Law (respondent)
against whom the complaint is filed; and
(3) the allegations and the basis upon which
the complainant believes the allegations to be true, including specific facts
about a potential violation as set forth in G.S. 120C.
History Note: Authority G.S. 120C-101(a); 120C-601;
Eff. June 1, 2014.
30 NCAC 10D .0103 ACKNOWLEDGMENT
Within 10 business days of receipt of a Lobbying Law
complaint from a third party or a referral, the Commission shall provide
written acknowledgment as to the receipt of the complaint to the complainant.
The acknowledgment shall indicate that an investigation has not begun, shall
direct the complainant to preserve any potentially relevant information, and
shall include the confidentiality provisions of G.S. 120C-601(c).
History Note: Authority G.S. 120C-101(a); 120C-601;
Eff. June 1, 2014.
30 NCAC 10D .0104 NOTICE TO THE COMPLAINANT OF REFERRAL
The Commission shall notify the complainant of a referral to
the Secretary of State's Lobbying Compliance Division pursuant to G.S.
120C-601(a).
History Note: Authority G.S. 120C-101(a); 120C-601;
Eff. June 1, 2014.
30 NCAC 10D .0105 PANEL COMPOSITION
The Commission panels referred to under this Subchapter
shall be comprised of two Commission members, who shall not be of the same
political party. The Chair shall appoint members of the panel to serve on a
rotating basis. The Chair may appoint substitute panel members.
History Note: Authority G.S. 120C-101(a); 120C-601;
Eff. June 1, 2014.
SECTION .0200 – PRELIMINARY
INQUIRY
30 NCAC 10D .0201 GENERAL
(a) A preliminary inquiry is conducted to determine whether
the individual against whom the complaint is filed is subject to the Lobbying
Law and whether the facts are sufficient to allege a violation of the Lobbying
Law.
(b) In preparing for a preliminary determination,
Commission staff may take pre-investigative actions, including contacting the
complainant to seek additional information, requesting the identity of the
original source of the information, or contacting the source for further
information. Any additional requested information shall be provided within no
less than ten business days of the request.
History Note: Authority G.S. 120C-101(a); 120C-601;
Eff. June 1, 2014.
30 NCAC 10D .0202 pRELIMINARY INQUIRY PROCEDURE
A preliminary inquiry decision shall be made by:
(1) The full Commission if the complaint is received
from one of the following:
(a) any member of the Commission;
(b) a duly constituted panel of the Commission;
or
(c) Commission staff.
(2) A Commission panel if the complaint is received
from one of the following:
(a) a local, state or federal agency referral;
or
(b) a third-party complainant.
History Note: Authority G.S. 120C-101(a); 120C-601;
Eff. June 1, 2014.
30 NCAC 10D .0203 TIMING
The preliminary inquiry shall conclude within 30 business
days of receipt of the complaint. This provision may be extended by the Chair
when necessary to comply with Rule .0201(b) of this Subchapter.
History Note: Authority G.S. 120C-101(a); 120C-601;
Eff. June 1, 2014.
30 NCAC 10D .0204 PRELIMINARY INQUIRY DECISIONS
(a) Upon completion of the preliminary inquiry, the
following actions may be taken:
(1) an investigation, if the information
alleges a violation over which the Commission has jurisdiction under G.S. 120C.
(2) decline or dismiss a complaint for the
following reasons:
(A) the complaint is not within the Commission's
jurisdiction and authority under G.S. 120C;
(B) the facts are insufficient to constitute a violation
under any provisions within the Commission's jurisdiction under G.S. 120C;
(C) the complaint is determined to be frivolous; or
(D) the respondent and the conduct complained of are the
same actions or conduct that have been the subject of a prior complaint.
(3) refer to one of the following:
(A) the N.C. Secretary of State when a complaint relates
to Article 2, 4, or 8 of G.S. 120C. The complainant shall be notified.
(B) other State, federal or local agencies or law
enforcement authorities. The complainant shall be notified.
(4) stay. If other agencies or authorities are
conducting an investigation of the same actions or conduct, the Commission may
stay its inquiry pending final resolution of the other investigation. This
provision does not prohibit the Secretary of State's Lobbying Compliance
Division from exercising its investigative and enforcement authority for
portions of a complaint subject to Article 2, 4, or 8.
(b) A panel decision to dismiss, decline, refer, or stay a
complaint following a preliminary inquiry shall be considered by the Commission
no later than its next regularly scheduled quarterly meeting. If the
Commission rejects the panel's decision, the complaint shall be investigated.
(c) The following actions shall proceed without Commission
approval upon a decision by the panel to investigate or if the panel members
disagree on whether to investigate:
(1) an investigation; and
(2) a referral pursuant to Part (a)(3)(A) of
this Rule.
(d) Upon receipt of a referral under Part (a)(3)(A) of this
Rule, the Secretary of State may:
(1) investigate; or
(2) resume an investigation referred to the
Commission pursuant to Article 6 of G.S. 120C.
History Note: Authority G.S. 120C-101(a); 120C-600;
120C-601;
Eff. June 1, 2014.
SECTION .0300 – INVESTIGATION
OF AN ACCEPTED COMPLAINT
30 NCAC 10D .0301 NOTICE OF INVESTIGATION TO RESPONDENT
Within 10 business days of a decision by the Commission or a
panel to investigate, the Commission shall notify the respondent in writing of:
(1) the general
allegation(s);
(2) the potential
statutory violations;
(3) the Commission's
subpoena power;
(4) that the
respondent shall retain any relevant information, including documents,
correspondence, notes, electronic communications, electronically stored
information and emails; and
(5) that respondent
may respond within 30 calendar days after receiving the notice. The Executive
Director may extend this deadline for up to 30 calendar days upon good cause
shown.
History Note: Authority
G.S. 120C-101(a); 120C-601;
Eff. June 1, 2014.
30 NCAC 10D .0302 MIXED COMPLAINT INVESTIGATIONS
A mixed complaint is a complaint alleging one or more
violations under Article 1, 3, 5, or 7 of G.S. 120C and one or more violations under
Article 2, 4, or 8 of G.S. 120C. Commission staff shall investigate the
portions of the complaint subject to Article 1, 3, 5, and 7 of G.S. 120C.
Commission staff may investigate the portions of the complaint subject to
Articles 2, 4, and 8 of Chapter 120C as incidental to making a determination on
the Article 1, 3, 5, and 7 allegations.
History Note: Authority G.S. 120C-101(a); 120C-601;
Eff. June 1, 2014.
30 NCAC 10D .0303 INVESTIGATIVE REPORT
Upon completion of the investigation, Commission staff shall
prepare an investigative report that contains the following:
(1) the allegations;
(2) investigative facts and findings;
(3) relevant statutory provisions;
(4) disposition options;
(5) if relevant, possible sanctions; and
(6) any response from the respondent.
History Note: Authority G.S. 120C-101(a); 120C-601;
Eff. June 1, 2014.
section .0400 – Complaint
dispositions
30 NCAC 10D .0401 PANEL REVIEW AND RECOMMENDATION
(a) For complaints initiated pursuant to Rule .0202(2) of
this Subchapter, Commission staff shall present the investigative report to the
same Commission panel that conducted the preliminary inquiry or a substitute
panel appointed pursuant to Rule .0105 of this Subchapter.
(b) The Commission panel shall review the investigative
report and shall take one or more of the following actions regarding the
Article 1, 3, 5, and 7 allegations:
(1) direct Commission staff to conduct further
investigation or obtain additional information;
(2) recommend that the Commission refer the
lobbying complaint to another agency;
(3) recommend that the Commission dismiss the
lobbying complaint or specific allegations within the complaint for lack of a
violation of Article 1, 3, 5, or 7 of G.S. 120C.
(4) recommend that the Commission find a
violation of Article 1, 3, 5, or 7 of G.S. 120C and that a specific sanction or
sanctions should be imposed. A violation shall be shown to exist by a
preponderance of the evidence.
(c) Recommendations shall be presented to the Commission no
later than at the next regularly scheduled quarterly Commission meeting.
(d) If the panel members disagree on a decision under this
Rule, the complaint shall go before the Commission for a decision with the
panel members recusing themselves from voting.
History Note: Authority G.S. 120C-101(a); 120C-601;
Eff. June 1, 2014.
30 NCAC 10D .0402 SETTLEMENT OF COMPLAINTS
(a) At any time, the respondent or his or her legal counsel
may meet by mutual consent with the Commission staff to discuss the possibility
of settlement of the complaint subject to Article 1, 3, 5, or 7 of G.S. 120C.
Settlement of complaints subject to Article 2, 4, or 8 of G.S. 120C is within
the Secretary of State's discretion. Resolution by settlement between the
respondent and the Commission does not impact or impede the Secretary of States
authority to determine that violations of Article 2, 4, or 8 have occurred, to
assess penalties for those violations and to refer to a District Attorney.
(b) If a panel finds that an alleged violation has
occurred, Commission staff shall provide the respondent with the panel's
recommended determination and offer to engage in settlement discussions. Any
recommended determinations provided to the respondent to facilitate settlement
discussions shall redact information regarding Article 2, 4, or 8 to the extent
possible under the circumstances.
(c) Staff shall present any proposed settlement to the
panel. The panel may accept, reject, or modify the terms of the proposed
settlement. The panel shall make a final recommendation regarding the
settlement to the Commission for approval. If the panel members disagree on
acceptance of a proposed settlement, the complaint shall go before the
Commission for a decision with the panel members recusing themselves from
voting.
(d) Upon the Commission's approval of a settlement under
Rule .0404(1)(a) of this Subchapter, the complaint shall be closed as to the
complaints subject to Article 1, 3, 5, or 7, subject to re-opening by the
Commission if the settlement agreement is breached.
(e) The Commission shall only provide written notice of a
settlement to the complainant and the complainant shall not receive a copy of
the settlement agreement.
History Note: Authority G.S. 120C-101(a); 120C-601;
Eff. June 1, 2014.
30 ncac 10D .0403 COMMISSION review
(a) For complaint investigations initiated pursuant to Rule
.0202(1) of this Subchapter, Commission staff shall present the investigative
report to the full Commission, and the Commission shall determine the
appropriate action as set forth in Rule .0404 of this Subchapter.
(b) For complaint investigations initiated pursuant to Rule
.0202(2) of this Subchapter, upon receipt of a recommendation from the panel,
the Commission shall determine the appropriate action as set forth in Rule
.0404 of this Subchapter with the panel members recusing themselves from
voting.
History Note: Authority G.S. 120C-101(a); 120C-601;
Eff. June 1, 2014.
30 NCAC 10D .0404 COMMISSION ACTIONS ON A COMPLAINT
The Commission may take one or more of the following actions
regarding the Article 1, 3, 5, or 7 allegations:
(1) accept, modify or reject any proposed settlement
agreement.
(a) If accepted, the Commission shall notify the
respondent of the Commission's decision.
(b) If modified, staff shall present the
modifications to the respondent for approval.
(c) If rejected, the Commission shall proceed
with any other action under Subparagraphs (2)-(5) of this Rule.
(2) direct Commission staff to conduct further
investigation or obtain additional information;
(3) refer the complaint to another agency, and notify
the respondent and the complainant of the referral.
(4) dismiss the complaint for lack of evidence if a
violation of G.S. 120C is not established by a preponderance of the evidence.
If dismissed, the Commission shall provide the following:
(a) Notice of Dismissal to respondent; and
(b) notice to the complainant that the complaint
was dismissed because a violation was not established by a preponderance of the
evidence. The complainant shall not receive a copy of the Notice of Dismissal.
(5) determine that a violation has occurred and proceed
as appropriate under Rule .0501 of this Subchapter.
History Note: Authority G.S. 120C-101(a); 120C-601;
Eff. June 1, 2014.
30 NCAC 10D .0405 MIXED COMPLAINT DETERMINATIONS
(a) In a mixed complaint, within 10 business days after
determination by the Commission of the Article 1, 3, 5, and 7 portions of the
complaint, Commission staff shall:
(1) provide
the Secretary of State's Lobbying Compliance Division with:
(A) written notice
of the Commission's final disposition, and
(B) access to, and,
if requested, temporary possession and custody of, all investigative materials
in mixed complaint investigations, excluding attorney work-product and items
subject to the attorney-client privilege under current law;
(2) notify
the respondent of a referral and their duty to retain any potentially relevant
information, including documents, correspondence, notes, electronic
communications, electronically stored information, and emails; and
(3) notify
the complainant of a referral and direct them to retain any potentially
relevant information, including documents, correspondence, notes, electronic
communications, electronically stored information, and emails.
(b) Any Commission determinations provided to the
respondent to facilitate settlement discussions shall redact information
regarding Article 2, 4, or 8 to the extent possible under the circumstances.
History Note: Authority G.S. 120C-101(a); 120C-600;
120C-601;
Eff. June 1, 2014.
30 NCAC 10D .0406 NOTIFICATION OF VIOLATION TO
RESPONDENT
If the Commission finds that a violation has occurred, the
respondent shall be notified of the following:
(1) the Commission's decision;
(2) any sanctions imposed pursuant to Rule .0501 of
this Subchapter;
(3) if it is a mixed complaint, the referral to the
Secretary of State's Lobbying Compliance Division and the respondent's duty to
retain any potentially relevant information, including documents,
correspondence, notes, electronic communications, electronically stored
information and emails;
(4) the respondent's right to appeal the determination
by filing a petition with the Office of Administrative Hearings and that the
Commission's determination shall become final upon a failure to appeal within
60 days;
(5) the respondent's opportunity to meet with
Commission staff to discuss post-decision settlement; and
(6) the requirement that pursuant to G.S. 120C-603(a),
apparent violations of G.S. 120C shall be reported to the district attorney.
History Note: Authority G.S. 120C-101(a); 120C-601;
120C-603;
Eff. June 1, 2014.
30 NCAC 10D .0407 NOTIFICATION OF VIOLATION TO
COMPLAINANT
If the Commission determines that a violation occurred,
Commission staff shall notify the complainant that an Order has been entered
and, if relevant that a referral has been made to the Secretary of State under
Rule .0405 of this Subchapter.
History Note: Authority G.S. 120C-101(a); 120C-601;
120C-603;
Eff. June 1, 2014.
SECTION .0500 – SANCTION
CRITERIA AND IMPOSITION OF SANCTIONS
30 NCAC 10D .0501 potential sanctions
Upon finding a violation and taking the criteria in Rule
.0502 of this Subchapter into consideration, the Commission may:
(1) issue a letter of warning;
(2) impose a fine of up to five thousand dollars
($5,000) per violation;
(3) require a respondent to attend lobbying education
as specified by the Commission; and
(4) impose other sanctions as provided in Chapter 120C.
History Note: Authority G.S. 120C-101(a); 120C-300; 120C-601;
120C-602;
Eff. June 1, 2014.
30 NCAC 10D .0502 SANCTION CRITERIA
The Commission may consider one or more of the following
criteria in imposing sanctions:
(1) the length of time the respondent has been engaged
in lobbying for payment;
(2) the length of time the respondent has been paying
an individual to lobby on its behalf;
(3) the length of time the respondent has been
registered as a lobbyist or liaison personnel;
(4) the length of time the respondent has been registered
as a lobbyist principal;
(5) the number of past violations of G.S. 120C by the
respondent;
(6) the number of times the respondent has received a
warning letter;
(7) whether the respondent knew or should have known
that the conduct or activity was a violation of Article 1, 3, 5, or 7 of G.S.
120C;
(8) the nature and number of violations in the
complaint;
(9) the duration of the violation;
(10) whether the respondent attempted to correct the
violation prior to a complaint being filed;
(11) the result or effect of the violation;
(12) whether the violation was inadvertent or
intentional;
(13) whether the respondent has received advice, informal
or formal, from the Commission regarding the conduct or activity giving rise to
the violation;
(14) the scope of the lobbying activity concealed;
(15) the amount of the resources expended to violate the
law;
(16) the amount of expenditures concealed; or
(17) any other criteria that the Commission deems
reasonable to assist with the determination of sanctions.
History Note: Authority G.S. 120C-101(a); 120C-601;
120C-602;
Eff. June 1, 2014.