Should One Kent have registered

September 25, 2011
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According to the Michigan Campaign Finance Act, a committee that either supports or opposes a ballot question in a single county has to file its campaign statement with the clerk’s office in that county. Also according to Public Act 388 of 1976, a committee has to make that filing within 10 days of its formation or after it receives contributions or makes expenditures of at least $500 in a single calendar year.

The state statute also requires a local government to make copies of the filing available for public inspection as soon as practicable, but no later than three days after it is received.

According to the Kent County Clerk’s office, One Kent Coalition hasn’t registered as a ballot-question committee, after making its intention publically known in February that it planned to lead a drive to bring a ballot question before county voters to merge the governments of Kent County and the city of Grand Rapids into a metropolitan government, if voters approve.

One Kent spokesman Nyal Deems recently told the Business Journal that the coalition was looking into whether it was necessary for the group to register at this point. “We have asked a party who specializes in such registering to let us know if we need to register and, if we do, to do that for us,” he wrote in an e-mail.

Deems told the Business Journal in July the coalition had received about $50,000 in cash contributions and a few hundred thousand dollars of in-kind support. He also said the coalition engaged the Dykema Gossett law firm in Lansing to write the necessary legislation that could bring the question before voters in November 2012 if state legislators and Gov. Rick Snyder approve the bill, which may be introduced in Lansing soon.

The state law defines an expenditure as a payment, donation, loan, or promise of payment, or anything of an ascertainable monetary value for goods, materials, services, or facilities in assistance of, or in opposition to the qualification, passage, or defeat of a ballot question. The law defines a contribution in much the same manner, but excludes volunteer personal services provided without compensation or travel payments of less than $500 in a calendar year if that expense wasn’t initially planned to be repaid.

The MCFA defines a ballot-question committee as a committee that acts in support of, or in opposition to, the qualification, passage, or defeat of a ballot question. The law also defines a ballot question as a question that is submitted or is intended to be submitted to a popular vote at an election, whether or not the question actually qualifies for the ballot.

Under the law, a committee can be as small as a single person who receives contributions or makes expenditures for a ballot proposal.

And, according to a ruling from the Department of State when former Kent County Clerk Terri Lynn Land led the office, a precise ballot question doesn’t have to exist for the law’s requirements to be followed. The ruling comes from a 2009 challenge the Michigan Chamber of Commerce made to the MCFA. The chamber argued that expenditures for items like surveying, marketing, staffing and attorney fees could be made before a ballot question was finalized and should be excluded because those payments were “front loaded” before a ballot question was formed.

But Brian DeBano, then Land’s CEO and chief of staff, cited a MCFA section that reads: “A ballot question is distinguished from a mere idea by the proponents’ intention to submit the question to a popular vote, regardless of their success in securing qualification and enactment of the ballot question. An intention to submit a ballot question to a popular vote is evident when the proponents perform an act that is reasonably calculated to result in the qualification or passage of a ballot question.”

When Deems addressed the county commission last February, he said One Kent began promoting its consolidation issue in the fall of 2009, the coalition had draft legislation that was being written and it was put on a fast track for approval this year, and One Kent wanted a ballot question to come before voters next year. Perhaps the intention factor that DeBano referred to in the state chamber’s challenge may also exist here. But the coalition’s situation also may differ from the chamber’s.

The Business Journal contacted three attorneys it hadn’t previously contacted and forwarded them the ruling from the Secretary of State’s office to get their takes as to whether One Kent has to register and should have done so by now.

One attorney said the group didn’t have to register at this point because it was still in the draft-legislation stage. A second attorney said it should have done so by now because the coalition has made expenditures to influence the placement of a proposal on a ballot. A third didn’t respond. So the “jury” is hung.

The law’s penalties for filing late aren’t severe. According to the MCFA, a fine for filing late can’t exceed $300 for being up to 30 days late. But a late filing can result in a misdemeanor and a maximum fine of $1,000 if a filing is more than 30 days late.

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