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An issue closely related to the official/personal capacity distinction is whether a
successor treasurer may be substituted for a predecessor treasurer in a matter under review.
Often the specific individual who was the treasurer at the time of a violation is no longer the
treasurer during the enforcement process. Whether the successor treasurer or the predecessor
treasurer should be named as the respondent depends on whether the Commission is pursuing
the treasurer in his or her official capacity, personal capacity, or both.

Currently, when OGC discovers that a committee has changed treasurers after the
date of the activity on which the finding was based, OGC typically notes the change of
treasurer, the date of the change, the former treasurer’s name, and indicates whether an
amendment was made to the Statement of Organization in OGC’s next report to the
Commission. If a treasurer change is made after a finding of reason to believe, then OGC
typically includes the new treasurer and notes the change in its next report on the matter. If
a treasurer change is made after a finding of probable cause to believe, OGC sends the new
treasurer a supplemental probable cause brief (incorporating the prior probable cause brief),
which states that the Commission found probable cause to believe against the committee and
the treasurer’s predecessor and will recommend probable cause against the new treasurer.
After receiving a response or waiting until the expiration of the response period, OGC
typically returns to the Commission with a recommendation as to the new treasurer.

When the Commission pursues a current treasurer in his or her official capacity,
successor treasurers will be substituted for the predecessor treasurer. In such cases, the
Commission is pursuing the official position (and, therefore, the entity), not the individual
holding the position. See Will, 491 U.S. at 71. Because an official capacity action is an

action against the treasurer’s position, the Commission may summarily substitute a new


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person to provide notice to and/or to attach liability to, the Commission may find itself at a
significant disadvantage in protecting the public interest and in ensuring compliance with the
laws it is responsible for enforcing. By virtue of their authority to disburse funds and file
disclosure reports and to amend those reports, treasurers of committees are in the best
position to carry out the requirements of a conciliation agreement such as paying a civil
penalty, refunding or disgorging contributions, and amending reports.

The Act designates treasurers to play a unique role ina political committee; indeed,
a treasurer is the only office a political committee is required to fill. 2 U.S.C. § 432(a).
Without a treasurer, committees cannot undertake the host of activities necessary to carry out
their mission, including receiving and disbursing funds and publicly disclosing their finances
in periodic reports filed with the Commission. Jd.; 2 U.S.C. § 434(a)(1). Given this
statutory role, especially the authority to receive and disburse funds (e.g., pay a civil penalty,
refund improper contributions, disgorge ill-gotten funds) on behalf of the committee,
designating the treasurer as the representative of the committee for purposes of compliance
with the Act makes sense.

«the Commission will consider treasurers parties to enforcement proceedings in their
personal capacities where information indicates that the treasurer violated an obligation that
the Act or regulations specifically impose on treasurers, In these circumstances, the _
Commission ordinarily will decide to find reason to believe the treasurer has violated the Act
in his or her personal capacity, as well as finding reason to believe the committee violated the
Act.

This statement of policy is intended to provide clearer notice to respondents and the

public as to the nature of the Commission’s enforcement actions, improve the perception of

‘{ Deleted: may

may be entitled to take action as to a
treasurer in both an official and
individual capacity, in the typical
enforcement matter the Commission

| expects that it will proceed against

! teasurers only in their official capacities.
(However, t

Deleted: knowingly and willfully

| recklessly failed to fulfill the duties

| imposed by law, or where the treasurer
has intentionally deprived himself or

| herself of the operative facts giving rise

(Deleted: or where the treasurer }



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The Act places certain legal obligations on committee treasurers, the violation of
which makes them personally liable.’ See, £.g., 2 U.S.C. 432(c) (keep an account of various
committee records), 432(d) (preserve records for three years), 434(a)(1) (file and sign reports
of receipts and disbursements). The Commission’s regulations further require treasurers to
examine and investigate contributions for evidence of illegality. See 11 CFR 103.3. Due to
their “pivotal role,” treasurers may be held personally liable for failing to fulfill their
responsibilities under the Act and the Commission’s regulations. See Toledano, 317 F.3d at
947 (“The Act requires every political committee to have a treasurer, 2 U.S.C. 432(a), and
holds him personally responsible for the committee’s recordkeeping and reporting duties,

id. 432(c)-(d), 434(a).... Federal law makes the treasurer responsible for detecting [facial
contribution] illegalities, 11 CFR 103.3(b), and holds him personally liable if he fails to
fulfill his responsibilities, see 2 U.S.C. 437g(d) . . ..”) (emphasis added); see also FEC v.
John A. Dramesi for Cong. Comm., 640 F. Supp. 985 (D.N.J. 1986) (holding treasurer
responsible for failing to “make . . . best efforts to determine the legality of” an excessive

contribution); FEC v. Gus Savage for Cong. ’82 Comm., 606 F. Supp. 541, 547 (N.D. Il.

1985) (“It is the treasurer, and not the candidate, who becomes the named defendant in
federal court, and subjected to the imposition of penalties ranging from substantial fines to
imprisonment.”); 104.14(d) ("Each treasurer of a political committee, and any other person

required to file any report or statement under these regulations and under the Act shall be

” Ifa past or present treasurer violates a prohibition that applies generally to individuals, the
treasurer may be named as a respondent in his or her personal capacity, and findings may be
made against the treasurer in that capacity. In this way, a treasurer would be treated no
differently than any other individual who violates a provision of the Act. The Act and the
Commission’s regulations apply to any “person,” which includes individuals. See €.g..2
U.S.C. 432(b) (forward contributions to the committee’s treasurer), 441e (receipt of
contributions from foreign nationals), and 441 (making and knowingly accepting
contributions in the name of another).


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In the seminal case of Kentucky v. Graham, 473 U.S. 159 (1985), the United States
Supreme Court discussed the distinction between official capacity and personal capacity
suits. The Court determined that a suit against an officer in her official capacity “generally
tepresent[s] only another way of pleading an action against an entity of which an officer is an
agent.” Id. at 165. In other words, an official capacity proceeding “is not a suit against the
official but rather is a suit against the official’s office.” Will v. Mich. Dept. of State Police,
491 U.S. 58, 71 (1989). Accordingly, “an official-capacity suit is, in all respects other than

name, to be treated as a suit against the entity.” Graham, 473 U.S. at 166. Therefore, in an

official capacity suit, the plaintiff seeks a remedy from the entity, not the particular officer
personally.

A “personal-capacity action is . . . against the individual defendant, rather than. . . the
entity that employs him.” Id. at 167-68. Since a “[p]ersonal-capacity suit[] seek[s] to
impose personal liability upon” a particular individual, the individual is the true party in
interest. Id. Liability lies with the particular officer personally, not with the officer’s
position. See id. at 166 n.11 (“Should the official die pending final resolution of a personal-
capacity action, the plaintiff would have to pursue his action against the decedent’s estate.”);
see also Hafer v. Melo, 502 U.S. 21, 27 (1991) (“officers sued in their personal capacity
come to court as individuals”).

The “distinction between claims aimed at a defendant in his individual as opposed to
Tepresentative capacity can be found across the law.” McCarthy, 22 F.3d at 360 (citing

numerous Supreme Court, lower court, and state cases referencing differences between


fairness throughout the regulated community, and merge the Commission’s treasurer
designation into conceptually familiar legal principles for the federal judiciary The
statement first surveys the law on the official/personal capacity distinction; next, addresses
when the Commission will proceed as to treasurers in their official or personal capacity or
both; and finally, resolves the reoccurring issues of successor treasurers and substitution.

The Commission’s Proposed Statement of Policy Regarding Naming of Treasurers in
Enforcement Matters was published in the January 28, 2004 Federal Register. 69 Federal
Register 4092 (January 28, 2004). One comment was received. The commenter stated that
the Commission’s effort to clarify its treasurer naming policy is welcome, but he made
several recommendations for how the Commission could assist treasurers to better
understand their potential personal liability, such as requiring separate notices in instances
where a treasurer was named in his or her individual and official capacities, and by enacting
the policy’s proposals through a rulemaking, rather than a policy statement. The
commenter’s suggestions were considered, but in order to allow the Commission to retain
flexibility in processing its cases, and because the policy statement combined with existing
laws and Commission regulations provide sufficient notice to treasurers of their

responsibilities, the suggested changes were not implemented.

I. The Official/Personal Capacity Distinction

3 As discussed infra Part IL, the phrases “official capacity” and “personal capacity” are legal
terms of art that permeate such fields as sovereign immunity, bankruptcy, corporations, and
federal procedure. Their usage instantaneously identifies for the judiciary when the
Commission is pursuing treasurers by virtue of their position, rather than by product of their
actions.


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committee, not personally. The practice also ensures that a named individual who signs the
conciliation agreement on behalf of the committee (or obtains legal representation on behalf
of the committee) is the one empowered by law to disburse committee funds to pay a civil
penalty, disgorge funds, make refunds, and carry out other monetary remedies that the
committee agrees to through the conciliation agreement.’ Also, naming a treasurer (in his or
her official capacity), as opposed to naming simply the office of treasurer or just the
committee, not only provides the Commission with an individual in every instance to serve
with notices throughout the proceeding, but also results in more accountability on behalf of
the committee — that is, a particular person who will ensure that a committee is responsive to
Commission findings.° Finally, specifying whether a treasurer is a party to an enforcement
proceeding in his or her official or personal capacity is consistent with use of these terms as
pleading conventions in court actions. A probable cause finding against a treasurer in his or
her official capacity makes clear to a district court in enforcement litigation that the
Commission is seeking relief against the committee, and would only entitle the Commission

to obtain a civil penalty from the committee. See Graham, 473 U.S. at 165.

IV. Treasurers in Their Personal Capacities

5 In the absence of a treasurer, “the financial machinery of the campaign grinds to a halt . . .
.” FEC v. Toledano, 317 F.3d 939, 947 (9" Cir. 2003), reh’g denied; see 2 U.S.C. 432(a)
(“No expenditure shall be made . . . without the authorization of the treasurer or his or her
designated agent.”); 11 CFR 102.7(a) (designation of assistant treasurer).

Such accountability may be especially helpful in matters involving committees that tend to
be ephemeral — existing for only a short time before permanently disbanding operations.


AGENDA DOCUMENT NO. 04-115-A

[LIVED
XAL ELECTION
COMMISSION

FEDERAL ELECTION COMMISSION SECRETARIAT

WASHINGTON, D.C. 20463 wu DEC 1S P 2:02

December 15, 2004

AGENDA ITEM
For Meeting of L2-|6—o4

MEMORANDUM SUBMITTED LATE

TO: The Commission

FROM: Scott E. Thomas
Commissioner

SUBJECT: Alternative re Treasurer Policy

Ihave concerns about the approach that has emerged in the document produced
by the Office of General Counsel. In my view, the Commission should be pursuing
treasurers in their personal capacity where the violation relates to a specific responsibility
of the treasurer under the law. The statute, as well as Commission regulations and court
precedent, place particular duties on treasurers and, in my view, this has led to the high
degree of voluntary compliance we have seen to date. To announce that treasurers
generally will not have personal responsibility may undermine this success.

I attach a marked-up version of the Office of General Counsel document that
would go in the direction I prefer.


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or her personal capacity agrees to pay a civil penalty through a conciliation agreement, or is
ordered to pay a civil penalty by a district court, a personal obligation exists to pay the civil
penalty. (A separate civil penalty would likely be assessed against the committee itself.)
Likewise, a cease and desist provision (negotiated through conciliation) or an injunction
(imposed by a district court) against a treasurer in his or her personal capacity will still apply
to that treasurer in the event he or she subsequently becomes treasurer with another
committee. Cf. Sec’y Exch. Comm’n v. Coffey, 493 F.2d 1304, 1311 n.11 (Cn Cir. 1974)
(“The significance of naming an officer . . . personally is that ‘otherwise he is bound only as
long as he remains an officer . . ., whereas if he is named [personally] he is personally
enjoined without limit of time.””) (quoting 6 L. Loss, Securities Regulation 4113 (1969,

supp. to 2d ed.)).

Vv. Treasurers in Both Capacities

There will likely be cases in which the treasurer is subject to Commission action in
both his or her official and personal capacity, as explained in supra sections II. and IV. In
such cases, the Commission will clearly designate that the findings are being made against
the treasurer in both capacities. See, e.g., United States v. Johnson, 541 F.2d 710, 711 (8"
Cir. 1976) (applying a similar standard in an action involving the Federal Trade Commission
when finding that “[t]he propriety of including a person both as an individual and as a
corporate officer in a cease and desist order has consistently been upheld in instances where
the person included was instrumental in formulating, directing and controlling the acts and

practices of the corporation”) (citing Fed. Trade Comm’n v. Standard Ed. Soc’y, 302 U.S.

ll


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personally responsible for the timely and complete filing of the report or statement and for
the accuracy of any information or statement contained in it") (emphasis added).

Thus, the statutory language, Commission regulations, and court prededent indicate a

treasurer should be named as a respondent in a Matter Under Review in his or her personal

MUR involves the treasurer’s violation of a legal obligation that the statute or regulations

impose specifically on committee treasurers,® In practi

to consider a treasurer the subject of an enforcement proceeding in his or her personal
capacity only when available information (or inferences fairly derived therefrom) indicates

that the treasurer knew or should have known about the conduct that constituted a violation, .

If, at any time in the proceeding, the Commission is persuaded that the treasurer did not act
with the requisite state of mind, subsequent findings against the treasurer will only be made
in his or her official capacity.”

Should the Commission file suit in district court following a finding of probable
cause against a treasurer in his or her personal capacity, judicial relief, including an
injunction and payment of a civil penalty, could be obtained against the treasurer personally.

Graham, 473 U.S. at 166-168. Likewise, when the Commission obtains relief from a

treasurer personally, the obligation will follow the individual. Thus, when a treasurer in his

5 Indeed, if FECA were construed to impose liability on treasurers only in their official
capacities, it would effectively mean that only committees are liable for violations under the
Statute - which would have been easy enough for Congress to accomplish by writing the Act
to impose reporting, recordkeeping, and other duties on "committees" rather than
"treasurers." In fact, in some instances, the Act and the Commission’s regulations
specifically impose obligations on committees and committee officers and candidates. See,
e.g.,2 U.S.C. 441a(f) (receipt of excessive contributions), 11 C.F.R. 104.7(b) (best efforts).

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!} treasurer in his or her official capacity

{ Deleted: or when a reasonable
| inference from the alleged violation is
| that the treasurer knew, or should have
| known, about the facts constituting a |
| violation,

| Deleted: had knowledge that his or her |

| conduct violated a duty imposed by law,

or where the treasurer recklessly failed to |
fulfill his or her duties under the act and
regulations, or intentionally deprived
himself or herself of facts giving rise to

(the violations.

{ Deleted: * Conversely, when a reason-
to-believe finding is made against a

‘only, but the potential violations at issue
involve obligations specifically imposed
by the Act or regulations on treasurers,
the notice of the finding will be
accompanied by a letter advising that the
Commission could later decide to pursue
the treasurer in a personal capacity if
information shows that the treasurer
knowingly and willfully violated the Act, |
or recklessly failed to fulfill the duties
imposed by law, or intentionally deprived
himself or herself of the operative facts
giving rise to the violation.



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individual and official capacity claims in multiple fields of law).’ The official
capacity/individual capacity distinction also carries societal significance. As the McCarthy
court explained:

The ubiquity of the [official capacity/individual capacity] distinction is a

reflection of the reality that individuals in our complex society frequently act

on behalf of other parties—a reality that often makes it unfair to credit or

blame the actor, individually, for such acts. At the same time, the law strikes

a wise balance by refusing automatically to saddle a principal with total

responsibility for a representative’s conduct, come what may, and by

declining mechanically to limit an injured party’s recourse to the principal

alone, regardless of the circumstances.

Ii. Treasurers in Their Official Capacity

Clearly indicating that the current treasurer is a party to an enforcement proceeding in
his or her official capacity will improve the Commission’s enforcement of the law ina
number of ways. Most importantly, it clarifies that findings by the Commission (whether
“Reason To Believe” or “Probable Cause To Believe”) or the signing of a conciliation

agreement only concerns the treasurer in his or her capacity as representative of the

* See Graham, 473 U.S. at 165 (42 U.S.C. 1983); Stafford v. Briggs, 444 U.S. 527, 544
(1980) (venue determination); Ex Parte Young, 209 U.S. 123, 159 (1908) (Eleventh
Amendment); Northeast Fed. Credit Union v. Neves, 837 F.2d 531, 534 (1st Cir. 1988)
(jurisdictional purposes); Pelkoffer v. Deer, 144 B.R. 282, 285-86 (W.D. Pa. 1992)
(bankruptcy); Estabrook v. Wetmore, 529 A.2d 956, 958 (N.H. 1987) (applying doctrine that
acts of a corporate employee performed in his corporate capacity generally do not form the
basis for personal jurisdiction over him in his individual capacity).



named as a respondent in his or her official capacity. In these circumstances, reason-to-
believe and probable cause findings against the committee will also be accompanied by
findings against the current treasurer in his or her official capacity. When the complaint

asserts allegations that involve a past or present treasurer’s violation of obligations that the

~| Deleted: may, in the circumstances |
| described be

or her personal capacity, and findings will be made against the treasurer in that capacity.
Thus, in some matters the current treasurer could be named in both official and personal
capacities. Maintaining the Commission’s ability to pursue a treasurer as a respondent in
either official or personal capacity allows the Commission discretion to fashion an
appropriate remedy for violations of the Act.”

Notably, political committees are artificial entities that can act only through their
agents, such as their treasurers, and often can be, by their very nature, ephemeral entities that
may exist for all practical purposes for a limited period, such as during a single election
cycle. Due to these characteristics, identifying a live person who is responsible for

representing the committee in an enforcement action is particularly important. Without a live

2 In any scenario, the Commission will, of course, remain free to exercise its prosecutorial
discretion not to pursue a respondent. For example, the Commission, in some cases, may
decide not to pursue a predecessor treasurer who technically has personal liability where the
committee, through its current treasurer, has agreed to pay a sufficient civil penalty and to
cease and desist from further violations of the Act.


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treasurer in his or her official capacity at any stage prior to a finding of probable cause to
believe.'°

When a predecessor treasurer may personally liable, the Commission could pursue
the predecessor treasurer individually, and not substitute the successor treasurer for the
predecessor treasurer individually. See fn. 7; Graham, 473 U.S. at 167-68. There would be
no legal basis for imputing personal liability from a predecessor treasurer’s misconduct to a
Successor treasurer who did not personally engage in the misconduct.

If the Commission were to pursue a treasurer both officially and personally and this
treasurer is later replaced, the Commission could pursue the predecessor treasurer for any
violations for which he or she is personally liable, and substitute the successor treasurer for
official capacity violations. Absent some independent basis of liability, the Commission
does not intend to pursue intermediate treasurers.!! See Cal. Democratic Party v. FEC, 13
F. Supp. 2d 1031, 1037 (E.D. Cal. 1998) (dismissing individual capacity claims against a
former treasurer because “there is no allegation that [the treasurer] violated any personal

obligation” and dismissing official capacity claims against him “since [he] is no longer

© Pursuant to the final policy, the Commission is not legally obligated to undertake the
requirements of 2 U.S.C. 437g(a)(3) when a successor treasurer begins his or her position;
although not legally required to do so, the Commission would intend to inform a new
treasurer of the pending action and make copies of the briefs available to the successor
treasurer.

"| For example, while Treasurer A is the treasurer for Joe Smith for Congress, a violation
occurs that subjects A to official liability and potentially to individual liability. Treasurer A
would be named in his official capacity and notified in a reason-to-believe notification of the
potential for personal liability. After the enforcement action has begun, Treasurer A resigns
and Treasurer B takes over. The Commission would pursue Treasurer B in her official
capacity, and if the circumstances warranted, Treasurer A in his individual capacity. If
Treasurer B resigns and is succeeded by Treasurer C prior to the conclusion of the
enforcement matter, the Commission would then continue to pursue Treasurer A in his
individual capacity and pursue Treasurer C in her official capacity. Treasurer B would no
longer be named in her official capacity.


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treasurer may be subject to Commission action in both an official and personal

capacity.

4. When the Commission makes findings as to a treasurer in his or her official capacity

successor treasurers will be substituted as if the findings had been made as to the

successor.

5._In enforcement proceedings involving provisions of the Act or regulations that apply

generally to individuals (¢.g., prohibitions against the making of an excessive

contribution), the treasurer will be subject to Commission action in his or her personal

capacity the same as any other individuals.

Bradley A. Smith

Chairman

Federal Election Commission
DATED:
BILLING CODE: —6715-01-U

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Commission action in both their official and personal capacities, and
situations where successor treasurers are named.

The goal in adopting this policy is to clarify when a treasurer
is subject to Commission action in a personal or official capacity,
while at the same time preserving the Commission’s ability to obtain
an appropriate remedy that will satisfactorily resolve enforcement
matters, or to seek relief in court, if necessary, against a live person.
Importantly, the policy is grounded in the statutory obligations
specifically imposed on treasurers and well-established legal

distinctions between official and personal capacity proceedings.

DATE: December 16, 2004.

FOR FURTHER

INFORMATION

CONTACT: Peter G. Blumberg, Attorney, 999 E Street, NW, Washington, D.C.

20463, (202) 694-1650 or (800) 424-9530.

SUPPLEMENTARY
INFORMATION:

L Introduction.

The Commission is modifying its current practices to specify more clearly when a
treasurer is subject to a Commission enforcement proceeding in his or her “official” and/or
“personal” capacity.! Specifically, when a complaint asserts sufficient allegations to warrant

naming a political committee as a respondent, the committee’s current treasurer will also be

' The terms “official capacity” and “representative capacity” are generally interchangeable,
as are the terms “personal capacity” and “individual capacity.” See McCarthy v. Azure, 22
F.3d 351, 359 n.12 (1* Cir. 1994),


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FEDERAL ELECTION COMMISSION
11 CFR Part 111
[NOTICE 2004 -]

STATEMENT OF POLICY REGARDING

TREASURERS SUBJECT TO ENFORCEMENT PROCEEDINGS

AGENCY:
ACTION:

SUMMARY:

Federal Election Commission.

Statement of Policy.

The Commission is issuing a Policy Statement to clarify when, in the
course of an enforcement proceeding (known as a Matter Under
Review or “MUR”), a treasurer is subject to Commission action in his
or her official or personal capacity, or both. Under this policy, when
the Commission investigates alleged violations of the Federal Election
Campaign Act, as amended, the Presidential Election Campaign Fund
Act, and the Presidential Primary Matching Payment Account Act

(collectively “the Act” or “FECA”) involving a political committee,

the current treasurer will typically be subject to Commission action jn

his or her official capacity. However, when the alleged violation

stems from a duty specifically imposed on the treasurer, like

Deleted: information indicates thata__|
° sao A foci 5 A ~~ | treasurer has knowingly and willfully
recordkeeping or reporting functions, the Commission will consider 7 | Violated a provision of te Act or
| regulations, or has recklessly failed to
ble A p fulfill duties specifically imposed on
the responsible treasurer to have acted in a personal capacity and make | treasurers by the Act, or has intentionally
| deprived himself or herself of the
| operative facts giving rise to the
(violation,

findings (and pursue conciliation) accordingly. This Policy Statement

also addresses situations in which treasurers are subject to


112 (1937); Standard Distrib. v. Fed. Trade Comm’n, 211 F.2d 7 (2d Cir. 1954); Benrus

Watch Co. v. Fed. Trade Comm’n, 352 F.2d 313 (3 Cir. 1965)).
For example, if a complaint alleges a violation such as receipt of a coordinated
communication or receipt of contributions in the name of another during the tenure of the

Current trea:

his or her official capacity. Even though, in these cases a reporting violation would stem,

from the same operative facts as the principal violation, knowing acceptance of these t ypes of

contributions by the treasurer is not to be assumed. Only if the Commission leams later that

the treasurer had knowledge of the operative facts -- for example, the treasurer knew that an

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in-kind contribution stemming from coordination went unreported — or acted recklessly, or
intentionally deprived himself or herself of the relevant facts, might the Commission make

findings against the treasurer in his or her personal capacity.

personal capacities, the respondents could be named as “John Doe for Congress and Joe
Smith, in his official capacity as treasurer and in his personal capacity.” Alternatively, the
respondents could be named as “John Doe for Congress and Joe Smith, in his official
capacity as treasurer” and “Joe Smith, in his personal capacity.” Regardless of the form of
the notification, where a treasurer has been named in both his or her official and personal
capacities, any resulting conciliation agreement would be signed by the treasurer on behalf of

both the committee and the treasurer in his or her personal capacity.

VL.

In cases where the treasurer is subject to Commission action in both official and

Successor Treasurers/Substitution



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treasurer . . . and thus, is not the appropriate person against whom an official capacity suit

can be maintained . . . .”).'

VII.___ Final Statement of Policy

In light of the considerations explained above and after carefully reviewing the
comment submitted on this matter, the Commission hereby announces that, from the date of
publication of this notice, it intends to exercise its discretion in enforcement matters by
naming treasurers as follows:

1. In enforcement actions where a political committee is a respondent, the

Commission will name as respondents the committee and its current treasurer

1, official capacity as treasurer, _

inhis o

2. In enforcement actions where information indicates that treasurer may have
violated a provision of the Act or regulations that applies specifically to

treasurers and knew or should have known of the conduct constituting the

Violation, the Commission will consider the treasurer a subject to the action jn

his or her personal capacity,

3._In enforcement proceedings where information indicates that a treasurer of a political ~

committee is subject to findings in both an official and personal capacity, the current

"? A deeper examination of the court file indicates that—despite the California Democratic
Party court’s assertion to the contrary—the Commission never actually pled that the treasurer
in this case was personally liable. Rather, the complaint references the treasurer “as
treasurer” and the Commission’s response to the treasurer’s motion to dismiss indicates that
the Commission was pursuing the treasurer “in his official capacity.” Compl., paragraphs 8,
58-59, Prayer paragraphs 1-5; Resp. to Def. Mot. to Dismiss, p. 21. However, the court’s
statement in California Democratic Party underscores the need for the Commission to
delineate more clearly the capacity in which it pursues treasurers.

{ Deleted: or a provision that applies
(generally to individuals,
( generally to individual