Election Board Denies Overstepping Authority

ALEXANDRIA, Va.- Election officials say candidates are allowed to use campaign funds for personal spending—but that’s not how they interpreted Virginia law last year.

In June 2009, the Virginia State Board of Elections asked Del. Onzlee Ware, D-Roanoke, for receipts and documentation of his campaign purchases. The request was prompted by a complaint from Mark Powell, who had managed the unsuccessful race of Ware’s primary opponent.

Powell outlined what he saw as irregularities in Ware’s spending reports, including incomplete addresses of persons paid and suspiciously round numbers. He also pointed out that Ware spent campaign funds on expenses like a YMCA membership and art framing—which, if they were personal expenses, would have been illegal according to the SBE’s interpretation of state law.

An October 2008 summary of Virginia election law put together by the SBE and posted on its website states that it’s illegal to use campaign funds for personal expenses.

But when the SBE enacted no penalties upon Ware, it was because Virginia law allows candidates to spend their campaign finances any way they wish, said SBE deputy secretary James Alcorn. The SBE based that interpretation on an informal opinion the board requested from the attorney general when Powell sent his complaint, Alcorn said.

But some say the SBE never had the authority to ask Ware for receipts and documents in the first place.

Del. Jim Scott, D-Fairfax, has filed a bill for three years in a row that would give the SBE authority to audit campaign reports—something that’s not allowed right now. According to state code, the SBE can only make sure reports are filed, make sure they’re filed on time and make sure they’re complete.

After his bill never made it past committee in 2006, 2007 and 2008, Scott didn’t file it this year. But he says he’s going to try again in next year’s session. His bill includes a requirement for the SBE to conduct sporadic audits of campaign funds, he says.

“The current usage is no, they don’t have the authority to do it,” Scott said. “It just seems to me if the state board does not have any way to figure out if there are any problems, then that’s a shortcoming and they at least ought to have the statutory authority to do it.”

House Minority Leader Ken Plum said that the fact that legislative attempts to give the SBE audit authority have failed highlights the fact that the SBE cannot request documentation from candidates—and so may have been overstepping its authority by requesting receipts from Ware.

“I know there have been instances in the past when there has been an effort to get a law passed to get them audited,” Plum said.

Alcorn said the SBE didn’t have the authority to investigate many items in Powell’s complaint.

“There were numerous things in the complaint and the board didn’t have the authority to investigate,” Alcorn said. “The board’s authority in this area is quite limited.”

But when asked if the SBE was overstepping its authority by asking Ware to produce documentation, Alcorn said the SBE’s action was “well within the definition of the statutes.” He said he wouldn’t characterize the SBE’s requests as investigating or auditing.

And a possible overstep of authority was not why the SBE halted its investigation of Ware, Alcorn said. He said it was due to the SBE’s interpretation of Virginia election law—that how candidates spend their campaign funds are up to them.

But that’s not how the SBE defined the law in its October 2008 summary. And in the October 2009 summary—written after the Ware investigation—the definition had changed. Now, candidates are prohibited from using campaign funds for personal reasons only after they close their campaign bank accounts.

Alcorn said he has no knowledge of the changes made to the 2009 summary. Staff members, and not the board, put the summaries together, he said.

Reprinted with permission from the Virginia Watchdog. Photo credit, Virginia Democrats

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