Albemarle Electoral Board, February 27, 2014

The Charlottesville Albemarle Transportation Coalition will pay a civil penalty of $100 for failing to file a timely campaign expenditure report for a radio advertisement that advocated for the defeat of two supporters of the U.S. 29 Western Bypass.

“A complaint was made to the State Board of Elections and they referred to it to the Commonwealth’s Attorney,” said Albemarle County Registrar Jake Washburne. “[Denise Lunsford] investigated it and concluded that the [radio] advertisements had violated one of the provisions of the Virginia Campaign Disclosure Act.”

The penalty is a result of a complaint filed last October by Albemarle County Supervisor Kenneth C. Boyd to state and federal agencies.

At the time, Boyd claimed that newspaper and radio ads paid for by the organization, also known as the Bypass Truth Coalition, violated the state’s campaign finance law because the group had not registered with either the Virginia Corporation Commission or the State Board of Elections.

CATCO’s need to pay the penalty was confirmed at an emergency meeting of the Albemarle County Electoral Board that was called at the request of its two Republican members. The make-up of the board will change on Saturday.

“It was a decision I made because as of tomorrow the make-up of the board will change,” said Alan Swinger, a Republican whose term will expire at midnight.

Members of the CATCO asked why the emergency meeting was required given that a meeting is also scheduled for next week.  

“Since [the violation] happened on this board’s watch, I wanted to take the action and not bring the new guy intro it,” Swinger added.

Democrat Jim Heilman was not able to attend the meeting, which was convened at the request of Swinger and Clara Belle Wheeler.

The partisan make-up of the board is determined by which party controls the Governor’s Mansion. The Albemarle County Democratic Committee Chair nominated Bill Love to replace Swinger, and his term begins on Saturday

Earlier this month, Lunsford found that CATCO should have filed an independent expenditure report for the purchase of a radio advertisement because it clearly called for the defeat of Duane Snow and Rodney Thomas.

“Failure to file a report or the late filing of a report is a violation of the [Campaign Finance] Act which may result in a civil penalty,” Lunsford said in a February letter to Boyd. “Willful violation of the Act is a class one misdemeanor.”

However, Lunsford said her interpretation is that CATCO did not willfully violate the law. She said allowing CATCO to comply with the law was a “more responsible approach” than prosecution.

On Wednesday, CATCO filed an independent expenditure report with the State Board of Elections.

This report states that CATCO president George Larie spent $5,140 on the radio ads and $514 to Charlottesville-based Mountain High Media to produce and place them. The report also indicates that the ads were intended to oppose the election of Snow and Thomas.

“If you name a candidate by name and advocate the election or defeat of that candidate, then you have crossed over a line from issue advocacy to candidate advocacy,” Washburne said.

The two electoral board members both claimed at the meeting that they felt CATCO acted as a political action committee, even though that question is not part of their scope.

“It is my understanding if you have tax exempt status, you may campaign on issues but not against specific candidates,” Wheeler said.  “Having seen the advertisements and heard the advertisements, names of candidates were mentioned. That’s a clear violation of tax law and election law.”

CATCO’s entire Board of Directors also attended the meeting.

“In no way have we become a political action committee and we don’t intend to characterize ourselves as one,” said Ann Rooker, a CATCO member and spouse of former Supervisor Dennis S. Rooker. Instead, the organization is registered with the Internal Revenue Service as a “social welfare” non-profit.

“Since 1988 when we were organized, we have dealt with transportation issues in our community,” Rooker said. “That is our focus and it will continue.”

Swinger said that was not germane to Thursday’s action.

“I do think you are a PAC but that is immaterial,” Swinger said.

That issue could be determined by the Internal Revenue Service, as Boyd has also asked that agency to investigate into the legality of the ads.

Chris Piper, election services manager for the State Board of Elections, said the fact that CATCO has filed an expenditure report does not mean they must file as a PAC.

CATCO members asked for the penalty to be waived, but Washburne said that would only apply if the delay had been due to a family emergency among the CATCO board members.

“Because the report is late, they are subject to the penalty,” Washburne said.

In a follow-up complaint, Boyd has asked the State Board of Elections to conduct another investigation of the radio ad’s legality.

“The Board should determine whether Bypass Truth met the voice-over requirement — and if it wasn’t, impose an additional civil penalty not to exceed $2,500.00 per broadcast,” Boyd wrote.

Washburne said he has referred that question to the State Board of Elections.

In an interview, Boyd said he did not know about the electoral board meeting. He said he will forward Lunsford’s information and the CATCO’s expenditure report to IRS.

“My intent all along is to make sure this doesn’t happen in the future and that people clearly identify who they are,” Boyd said.