Section .0100 – General

Link to law: http://reports.oah.state.nc.us/ncac/title 30 - state ethics commission/chapter 10 - lobbying/subchapter d/subchapter d rules.html
Published: 2015

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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.