Legal Corner: Understanding the Fair Campaign Practices Act

During election season, questions about the Fair Campaign Practices Act (FCPA) are at their height. This state law governs campaign fundraising and expenditures and restricts the use of public funds in connection with election campaigns at both the local and state levels. FCPA restrictions on the use of public funds apply to all statutory municipalities and home rule municipalities that have not adopted provisions addressing campaign finance; applicability may vary for all other home rule municipalities. Accordingly, it is important for municipal officials to understand FCPA applicability, restrictions, and the complaint process.

The FCPA and public funds

Section 117 of the FCPA prohibits the use of public funds or supplies to support or oppose a proposed candidate or measure. In addition, a municipality cannot use or permit use of municipal facilities or equipment for a campaign, employees cannot use working hours to work on a campaign, and employees cannot provide transportation to influence the outcome of any particular issue. The prohibition on the use of public funds includes campaign donations and contributions.

FCPA restrictions are implicated for:

• A statewide ballot issue that has been submitted for title setting under C.R.S. § 1-40-106(1), or that has had a title set;
• A local ballot issue that has been submitted for title setting under C.R.S. § 31-11-111, or has had a title set;
• A referred measure; and
• A measure for the recall of any officer that has been certified by the appropriate election official.

While not fully settled, municipalities that conduct multiple ordinance readings or that have advance discussion of ballot measures should consider when FCPA restrictions might be implicated in the process.

Certain activities remain permissible under the FCPA. Municipalities can spend public money to compile and distribute factual summaries of ballot measures that include arguments for and against the measure; the summaries must be neutral and cannot express a certain position on the measure. It is advisable to seek legal review of any summaries prior to distribution. Municipal governing bodies can also adopt a resolution supporting or opposing an issue. The adoption of the resolution can be reported through regular, established channels such as a monthly newsletter or email.

Furthermore, municipal employees and officials can respond to unsolicited questions about ballot measures, can spend personal money or use personal time to campaign on particular measures, and elected officials can express a personal opinion on an issue in their official capacity. Finally, the FCPA allows certain employees with policy making responsibilities to spend no more than $50 of public money on activities incidental to expressing their opinion on any ballot issue, such as letters or phone calls, but such money cannot be used on candidate campaigns.

Campaign finance complaints

Contrary to the language of Article XXVIII of the Colorado Constitution, a 2019 law provided that complaints arising out of a municipal campaign finance matter must be filed with the clerk of the municipality in question. In 2024, the General Assembly passed HB24-1283, which established minimum procedures for filing municipal campaign finance complaints with a municipal clerk but fortunately also provided a process for modification of the complaint process through local law.

Unless complaint standards and procedures are modified locally, municipal FCPA complaints must be in writing, signed, and identify one or more respondents. The default standard requires a municipal clerk to review an FCPA complaint for compliance with the law within 10 business days; if the complaint doesn’t comply with the legal requirements, the clerk must dismiss the complaint.

The 2024 state law established that a statutory or home rule municipality can adopt an ordinance authorizing municipal FCPA complaints to be referred to the Colorado Secretary of State (SOS) when the clerk determines that investigating or ruling on the complaint presents an actual or potential conflict of interest for the clerk or clerk’s staff. Additionally, any statutory municipality is authorized to adopt an ordinance to refer FCPA complaints to the SOS if it does not have a campaign finance complaint and hearing process. When using this process, municipalities must provide the SOS with a copy of the applicable ordinance and must file any eligible complaints with the SOS within 14 days of receipt. Only complaints involving elections at least 180 days after the ordinance is provided to the SOS are eligible. C.R.S. § 1-45-111.7(10)(d) lays out specific requirements that must be included in any municipal ordinance that authorizes the municipality to refer FCPA complaints to the SOS.

If a home rule municipality refers FCPA complaints to the SOS pursuant to an authorizing ordinance, the SOS must apply the substantive provisions of the home rule municipality’s local law in processing, investigating, and resolving the complaint. In contrast, statutory municipalities must authorize the SOS to use state statutory provisions for processing, investigating, and resolving municipal FCPA complaints referred to the SOS.

If a municipality is handling any FCPA complaints internally, it should ensure that it has established clear processes and standards, including timelines for submitting a complaint, listing the information that must be contained in a complaint, identifying which municipal employees are involved in each step of the process, and laying out clear review, dismissal, and hearing procedures. Municipalities may also wish to establish penalties and a third-party evaluator or adjudicator to protect staff from claims of bias. The process for initial review of complaints should include some sort of screening system to filter out unjustified complaints. Holland v. Williams, 457 F. Supp. 3d 969 (D. Colo. 2018). Additionally, if a municipality provides for a process to cure violations, it should do so with great specificity including the time frames for a cure, the process for submitting information necessary to cure, and the process for determining whether all deficiencies have been cured. While clearly defined procedures are important, each municipality should ultimately tailor the process to best suit its own needs. 

This column is not intended and should not be taken as legal advice. Municipal officials are always encouraged to consult with their own attorneys.