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DISTRICT OF COLUMBIA
BOARD OF ELECTIONS AND ETHICS
NOTICE OF EMERGENCY AND PROPOSED RULEMAKING
The District of Columbia Board of Elections and Ethics pursuant to the authority set forth in D.C. Code § 1-1001.05 (a)(14) hereby gives notice of emergency and proposed rulemaking action to adopt the following amendments to 3 DCMR Chapter 99, “Definitions.” These amendments clarify, revise, or establish definitions which are applicable to chapters 1-20, District of Columbia Municipal Regulations, Title 3.
In order for these amendments to be in place prior to the September 14, 2010 Primary Election, it was necessary for the Board to adopt the following emergency amendments to the rules. The Board took such action at a special meeting which took place on Thursday, August 12, 2010, at which time the amendments became effective.
The emergency amendments to the rules will expire on Monday, December 20, 2010, one hundred twenty (120) days after the emergency rulemaking takes effect, or upon publication of the Notice of Final Rulemaking in the D.C. Register, whichever occurs first.
The Board hereby gives notice of its intent to take final rulemaking action to adopt these amendments in not fewer than 30 days from the date of publication of this notice in the D.C. Register.
All persons desiring to comment on the subject matter of this proposed rulemaking should file comments in writing not later than thirty (30) days after the date of publication of this notice in the D.C. Register. Comments should be filed with the Office of the General Counsel, Board of Elections and Ethics, 441 4th Street, N.W., Suite 270N, Washington, D.C. 20001. Copies of the proposed rules may be obtained at cost from the above address, Monday through Friday, between the hours of 9:00 a.m. and 5:00 p.m.
Section 9900 of Chapter 99 of 3 DCMR, “Definitions,” shall be amended to read as follows:
9900 DEFINITIONS
9900.1 The terms and phrases used in this title shall have the meanings set forth in the Election Act, the Campaign Finance Act, and this section unless the text or context of the particular chapter, section, subsection, or paragraph provides otherwise.
Activity - acts or functions of an agency or its authorized agent and the methods of performing them.
Address - personal residence, principal place of business, campaign office, political committee office and citizen-service program office.
Administrative action – the execution of policies relating to persons or things as previously authorized, or required by official action of the agency, adopted at an open meeting of the agency. The term does not include the deliberation of agency business or taking official action. Examples of administrative action include the review of an agenda, setting witness testimony time limitations, and other such procedural discussions.
Anything of value - gift, favor, service, loan gratuity, discount, hospitality, political contribution, reward, or promise of future employment based on any understanding that a public official’s official actions or judgment or vote would be influenced, or if it could be reasonably be inferred that the thing of value would influence the public official in the discharge or his or her duties.
Authorized officer or agent - one who has the actual or apparent authority to bind the principal.
Ballot - a sheet of paper, or electronic card, filmstrip or other device on which votes are recorded and stored. See also, “official ballot.”
Ballot card – see “ballot.”
Ballot measure – a specific category of ballot question, including initiatives, referenda, and recalls.
Ballot question – a direct vote in which the electorate is asked to either accept or reject a particular proposal, including ballot measures (initiatives, referenda, and recalls) and Charter Amendments.
Beneficial interest - a present or future financial interest. The term includes interests held in the person’s own name, in trust, or in the name of a nominee.
Board - the District of Columbia Board of Elections and Ethics, as established under section 3 of the District of Columbia Election Act, approved August 12, 1995 (69 Stat. 699; D.C. Code § 1-1301 et seq. (1992 Repl. Vol.), and redesignated by D.C. Code §§ 1-1001.03 and 1-1103.05(a) (2006 Repl.).
Board’s office – the Board’s principal place of business, and for purposes of registration only, any voter registration agency (VRA) or early voting center location that the Board shall designate.
Campaign Finance Act - the District of Columbia Campaign Finance Reform and Conflict of Interest Act (D.C. Code § 1- 1101.01 et seq. (2006 Repl.) which shall be the governing law as to how candidates finance their campaigns for elective office and as to whether public officials disclose their financial assets and liabilities.
Candidate for election - an individual who has won a party primary; or who has survived the challenge period (D.C. Code §§ 1-1001.08(o) and 1-1101.1(2) (2006 Repl.) after filing a petition to have his or her name printed directly on the general election ballot.
Candidate for nomination - an individual who is seeking to win a party primary; or an individual who is seeking ballot access in a general or special election by having registered voters sign a nominating petition to have the candidate’s name printed directly on the ballot.
Citizen - Service Program - constituent services fund.
Close of business - 4:45 p.m. Monday through Friday, excluding District of Columbia legal holidays, unless where otherwise indicated in this title.
Communication directly - any oral or written communication by a lobbyist to an official, agent or representative in the legislative or executive branch of the Government of the District of Columbia for the purpose of lobbying.
Compensation - anything of value regardless of services rendered.
Contest - the aggregate of candidates who run against each other among themselves for a particular nomination or number of nominations, or a particular office or number of offices. The write-in options for each of the positions to be filled by the election are also part of the contest.
Council - Council of the District of Columbia ("Council").
D. C. Code - the 2001 Edition of the Code, as amended.
D.C. Official Code - the 2001 Edition of the Code, as amended.
Days - calendar days, unless stated otherwise.
De minimis - financial gain no greater than one thousand dollars ($1,000) per year from any one (1) source.
Directly related - immediately or approximately connected to, allied to, or affiliated with.
Duly registered voter - a registered voter who resides at the address listed on the Board’s records.
Effective date (of registration) – the date from which a registered voter’s information is valid
Effort to realize personal gain - any attempt by a public official to profit or obtain an advantage or an addition to that which official lawfully receives in his or her official capacity. No actual gain is necessary.
Elected officials - the following local public officials:
(a) The Delegate to the United States House of Representatives from the District of Columbia, as provided for in the District of Columbia Delegate Act of 1970 (D.C. Code § 1-401 (2006 Repl.);
(b) The Mayor of the District of Columbia, as provided for in D.C. Code §§ 1-204.21 and 1-204.22 (2006 Repl.);
(c) The Chairperson and Members of the Council of the District of Columbia, as provided for in D.C. Code § 1-204.01 (2006 Repl.);
(d) The Members of the State Board of Education, as provided for in D.C. Code § 38-2651 (2006 Repl.);
(e) Electors of President and Vice President of the United States and the officials of political parties as provided for in D.C. Code § 1-1001.01 (2006 Repl.) and
(f) Members of Advisory Neighborhood Commissions, as provided for in D.C. Code § 1-1001.02(13) (2006 Repl.).
Election Act - the District of Columbia Election Act, as amended (D.C. Code § 1-1001.01 et seq. (2006 Repl.)), which governs the administration of all elections in the District of Columbia.
Election Day worker – see “polling place official”
Election observer – an individual who has received proper credentials from the Board to witness the administration of elections, including members of nonpartisan or bipartisan, domestic or international organizations, who are not affiliated with a candidate or ballot measure.
Election official – any employees of the Board and polling place officials, excluding poll watchers and election observers.
Election year - the calendar year in which there is held an election, where a political committee is engaged in promoting or opposing a political party, nomination or election of an individual to office, or any initiative, referendum, or recall measure.
Electronic filing - as provided by the Office of Campaign Finance in chapters 30-37, the procedure by which filers may process required forms online though the world wide web at www.ocf.dc.gov.
Eligible candidate - and individual who is not ineligible to be a candidate pursuant to D.C. Code § 1-1001.15(6) (2006 Repl.) and who meets or is capable of meeting those statutory requirements necessary to serve in a particular office by the date of the election in which he or she seeks the office.
Employee (of the Board) - as distinguished from a "polling place official,” an individual who is employed by the District of Columbia Board of Elections and Ethics to perform personal services for the Board either as a permanent, temporary, intermittent or trainee and includes employees on leave, leave without pay, or on furlough or leave of absence for educational purposes.
Employer - any person who compensates the registrant.
Entrusted position - an elective and public office which is a public trust in which the citizenry reposes special confidence in the officeholder for the execution of duties or services which inure to the benefit of the citizenry.
Fair market value - the fair and reasonable cash price for which the property can be sold in the market at the time of alleged violation, or at the time of filing of the financial statement.
Fictitious ballot – a ballot which shows the design and layout of a ballot in an upcoming election, and does not contain the names of nominees or candidates actually seeking office or ballot questions actually to appear on an official ballot.
File, filed and filing – in chapters 30-37, delivery in person or by mail to the OCF by 5:30 p.m. of the prescribed date.
Financial interest - any monetary advantage or claim.
Government photo identification – a card issued by the District of Columbia government which bears a photograph of the face of the voter and the voter’s current, District of Columbia residential address.
Honorarium - any monetary fee paid for services rendered when there is no legal obligation for payment.
Identification - in the case of an individual, the full name, including first name, middle name or initial, if available, last name of an individual, and full address of the principal place of residence; and in the case of partnership, committee, corporation, labor organization, and any other organization, full name and mailing address.
Incidental expenses - any unreimbursed payment from a volunteer’s personal funds for usual and normal local travel and subsistence expenses incident to volunteer activity under D.C. Code § 1-1101.01(7)(d) (2006 Repl.).
Independent expenditures - an expenditure for communications by a person expressly advocating the election or defeat of a clearly identified candidate, which is made without cooperation or consultation with any candidate, or any authorized committee or agent of the candidate under D.C. Code § 1-1101.01(7) (2006 Repl.).
In-kind contribution - a contribution of goods, services or property by the contributor to a political committee, candidate, citizen-service program, or Statehood fund.
Legal tender - currency and coins of the United States; ready money.
Logic and accuracy testing (“L&A testing”) – validation of the mathematical accuracy of vote recording and tabulation equipment for internal and external consistencies.
Made with cooperation or consultation with any candidate - any arrangement, coordination, or direction by the candidate or his or her agent prior to the publication, distribution, display, or broadcast of the communication. An expenditure will be presumed to be so made when it is as follows:
(a) Based on information about the candidate’s plans, projects, or needs provided to the expending person by the candidate, or by candidate’s agent, with a view toward having an expenditure made; and
(b) Made by or through any person who is, or has been, authorized to raise or expend funds; who is, or has been, an officer of an authorized committee; or who is, or has been receiving any form of compensation or reimbursement from the candidate, the candidate’s committee or agent.
Mass collections - the receipt of contributions by a committee, candidate or individual, at dinners, luncheons, rallies, and other fundraising events organized by a committee, candidate or individual, pursuant to D.C. Official Code, §1-1102.06(b)(6).
Mass sales - to make available for purchase by a committee, candidate or individual, at dinners, luncheons, rallies, and other fundraising events organized by such committee, candidate or individual, items in bulk such as political campaign pins, buttons, badges, flags, emblems, hats, banners, literature and similar materials, pursuant to D.C. Official Code, §1-1102,06(b)(6).
Non-postmarked – not bearing the postal cancellation imprint on letters flats and parcels that shows the date, name, state, and ZIP Code of the post office or sectional center facility that accepted the mail.
Non-support year - any calendar year in which a political committee is not engaged in promoting or opposing a political party, the nomination or election of an individual to office, or any initiative, or referendum, or recall measure.
Occupation - the principal job title or position, and type of business, or whether self- employed for the purposes of D.C. Code § 1-1102.06 (2006 Repl.).
Official ballot – a sheet of paper, or electronic card, filmstrip or other device that has been approved by the Board for use during an election on which votes are recorded and stored. For DRE machines, the official ballot shall be the electronic card which records and stores the elector’s votes, except that the voter-verified paper audit trail (“VVPAT”) shall be the official ballot of record during all occurrences of manual tabulation, including audits and recounts.
Ordinary course of business - Transacting business according to customary and reasonable business practices.
Overvote – instance in which a voter casts a vote for a greater number of candidates or positions than the number for which he or she was lawfully entitled to vote and no vote shall be counted with respect to that office or question.
Party affiliation status – for registration and registration update purposes, the elector’s choice of “Democratic Party,” “Republication Party,” “D.C. Statehood Green Party,” “no party (independent),” or any other minor party.
Poll watcher – a qualified elector who has received proper credentials from the Board to monitor voting or ballot counting activity on behalf of a qualified candidate, or proponent or opponent of a proposed initiative, referendum, recall measure, or Charter amendment.
Polling place official - an individual who is employed by the District of Columbia Board of Elections and Ethics on those dates when elections and early voting are conducted in the District of Columbia or any subsequent dates upon which the counting or recounting of ballots occurs and includes, but is not limited to, precinct captains, precinct workers, counters or area representatives.
Postmarked – bearing the postal cancellation imprint on letters flats and parcels that shows the date, name, state, and ZIP Code of the post office or sectional center facility that accepted the mail.
Principal place of business - full name under which the business is conducted and the addresses, city, and state in which the person is employed or conducts business.
Qualified elector – a registered voter who resides at the address listed on the Board’s records.
Qualified registered elector – a registered voter who resides at the address listed on the Board’s records.
Registered qualified elector - a registered voter who resides at the address listed on the Board’s records.
Sample/specimen ballot – a representation of an original official ballot used for demonstration purposes only.
Submission – the voter’s act of returning a voted ballot to the Board.
Surplus funds - residual or unexpended monies remaining in a candidate, citizen-service program, Statehood fund or political committee account in excess of the amount necessary to defray expenses.
Testimonial committee - any committee, association, or organization organized and operated exclusively for the purpose of publicly acknowledging an official’s services, character, attainments, conduct, qualifications, or contributions while holding office. A testimonial committee is not a political committee.
Timely completed – the information given and signature made on or prior to the date required pursuant to the D.C. Official Code and the D.C. Code of Municipal Regulations, title 3.
To cause to be undertaken - an actual writing, drawn up by an executive agency, intended to initiate a rulemaking proceeding. The phrase is not intended to include discussion among members of the agency or the public prior to their submission of the writing.
To obtain financial gain - to realize any monetary profit, or any benefit on which a monetary value can be fixed, by the public official, any member of his or her household, or any business with which the official or a member of the official’s household is associated other than that compensation provided by law for that public official.
Transmission – the Board’s act of sending a ballot to the voter.
To propose legislation - an actual written proposal signed by the head of a proposing agency and submitted to the Mayor, Council, President of the United States, or the United States Congress. It does not refer to discussion among members of the proposing agency before submission of the written request, nor does it refer to oral communications between the proposing agency and the Mayor, President, or members of the Council or the U. S. Congress.
Undervote – an instance in which a voter casts a vote for a lesser number of candidates or positions than the number for which he was lawfully entitled to vote
Voter registration application – a form meeting federal requirements pursuant to the National Voter Registration Act (“NVRA”) (42 U.S.C. § 1973gg et seq.) and the Help America Vote Act (“HAVA”) (42 U.S.C. § 15301 – 15545) with which a qualified elector registers to vote or update registration information.
Voter Registration Application – the official voter registration application approved by the Board.
Voting system – any equipment or software used to tabulate ballots.
Write-in nominee - an individual whose name is written on or imprinted upon the ballot by a voter, in a primary, general, or special election and whose eligibility as a candidate in the election has not been determined by the Executive Director.
Write-in candidate (“qualified write-in candidate”) – as distinguished from a “write-in nominee,” an individual who is seeking nomination or election by the electorate and whose eligibility as a candidate in the election has been determined by the Executive Director.
