By Kyle Lovern
September 11, 2013
CHARLESTON - Natalie Tennant, the WV Secretary of State, has issued documentation clearing the Mingo County PAC of any election violations, and has dismissed the charges and allegations that were brought against them as of August 28th.
The letter mailed from Tennant to Mingo County PAC Treasurer, Greg “Hootie” Smith, reads as follows:
This is to inform you that this office has concluded its investigation of the formal complaints alleging election law violation by Team Mingo, 2012. The complaint only alleged a violation for the receipt by the PAC of contributions by a few named candidates’ campaign funds.
Except for four specifically identified circumstances, West Virginia Code does not make it a violation for a PAC to receive money which may have been improperly donated. The prohibited transactions are:
1. No person (which includes a PAC) may accept an anonymous contribution,
2. No person may receive a currency contribution of more than $50,
3. A PAC may not receive a contribution from another PAC, and
4. 527(e)(1)’s may not receive more than $1,000 from any contributor during an election period.
The latter section was recently challenged in federal court for the Southern District of West Virginia and the judge has issued a permanent order allowing contributions of more than $1,000 to a PAC which is only making independent expenditures.
None of the four specific prohibitions apply to Team Mingo 2102. These are the only prohibitions applicable to the receipt of contributions by a PAC in code. Changes or additions to the list can only be made by the Legislature. This office is without legal authority to create additional Prohibitions.
Accordingly, we find that the PAC committed no violation and the complaint is dismissed.
As noted above, the receipt of the contributions was not illegal under current state law. Yet, we are troubled by the absence of Code or Regulation covering the circumstances. Although the code does not specifically address receipt of a prohibited contribution, it is difficult to conclude that the recipient should be allowed to benefit from a prohibited contribution. Federal regulation apparently covers this and requires repayment once the prohibited status is brought to the attention of the recipient. We intend to study the federal model and possibly clarify our Regulations and Code with amendment. In the meantime, we commend your committee for voluntarily refunding the improper contributions once they were brought to the PAC’s attention.
W.Va. Code prohibits this office from disclosing the fact that a complaint was filed or any other related facts. The Code says that “no person” may make such a disclosure. However, a Circuit Court Judge last year ruled that the Code unconstitutionally restricts the right of free speech of any persons except employees of the Secretary of State. So, while this office will make no disclosure to the press, you may comment on this subject to any source that you see fit.
The letter was signed by Timothy G. Leach, who serves as the Assistant General Counsel for the WV Secretary of State’s Office.
Leach also penned a letter to WV House of Delegate Justin Marcum, which was dated on August 26, which stated that “the complainant has withdrawn his complaint involving the allegedly illegal contribution to your 2012 campaign from a PAC, Team Mingo 2012. The complainant decided that your amended filing listing the “contribution” as a “reimbursement” made his complaint moot. Accordingly, the complaint is hereby dismissed.”