The Craig City Council voted, 6-0, Tuesday to recommend the city attorney prosecute a former council candidate for spending more money than was allowed on his campaign for the April election.
Craig City Attorney Kenny Wohl said he plans to file a court action against Francisco Reina, who was on the April 2009 ballot.
"I guess you can call that a prosecution," Wohl said.
Reina will be charged with a Class A violation in municipal court. Possible penalties include as much as a $1,000 fine and 180 days in jail.
Councilor Gene Bilodeau was out of town.
Earlier this month, Reina submitted a spending report to City Clerk Shirley Seely declaring he spent $1,512.78, more than three times the $500 limit the Craig City Charter allows political candidates to spend on their own campaign.
The charter states "all amounts of money contributed or spent by him," referring to the candidate, "shall not exceed $500."
Wohl said his interpretation of the charter is that the Colorado Fair Campaign Practices Act covers campaign contributions from third parties.
However, Reina did not declare any contributions on his spending report.
Wohl told the council that although it is clear Reina violated the charter, he did not favor filing a charge against him.
The city attorney has the final decision about whether to prosecute municipal cases, but he said he wasn't sure the ordinance would be held as constitutional in the courts.
The U.S. Supreme Court ruled in 1976 that campaign contributions are at least partially protected by the right to free speech and that a person may spend an unlimited amount of their money on their own campaign.
If that is the law, then the ordinance is unconstitutional, Wohl said.
However, he added that some Supreme Court justices have indicated they would rule differently if the same case were brought before them. That could mean they would think the local ordinance is constitutional.
"At the same time, we don't want a law that isn't enforced," Wohl said.
He recommended the city wait until its next election in 2011 before making a decision to enforce or remove the ordinance. The national court system may produce a clearer opinion at that time, he said.
If it does not, then Wohl recommended the city take extra steps to publicize the spending limit and make it known city officials would prosecute offenders.
"We would, in effect, be letting this individual slide by," he said.
Several council members did not agree with Wohl's recommendation.
"I do not understand even why we're having a conversation about not prosecuting," councilor Joe Herod said. "He violated our charter, he overspent his money and we have a lawyer sitting right there saying he already made a decision for me that we're not going to prosecute. I don't think that's right."
"As a City Council, I don't think we have the right to choose what parts of our charter we enforce and not enforce," councilor Byron Willems said.
"Would it have been different if it had been Terry (Carwile) or Gene (Bilodeau) or me or Byron?" Councilor Jennifer Riley said, referring to the four candidates from the April election who won seats on the Council. "I'm not sure saying, 'Hey, don't do it again,' is really the direction we should take."
Councilor Carwile said it wasn't the constitutionality of the ordinance that most concerned him, but rather the trust of the public in city officials. The voters approved the local campaign spending limit when they voted on the charter in 2006, he said.
Even if the courts declare the ordinance unconstitutional, "we have kept the faith of the formulators of our constitution," Carwile said.
After their discussion, Wohl said he understood the council's points and that he had a clear idea of what he wanted to do.
Craig resident Dave DeRose, who was in the audience, said he did not think the attorney had sufficient direction, however.
From his seat, DeRose said, "This is a charter. You're sworn to protect it. (Wohl) needs to prosecute the case."
After his words, the council agreed to make a formal motion stating their position, a step Wohl encouraged.
Another candidate also may have technically violated the city charter, although that was not discussed at the council meeting.
The charter states candidates must return "an itemized statement" of their expenses to the city within 30 days of an election, which Carwile did not do.
Seely said she received his itemized information last week, about two weeks past the deadline.
Carwile said the form he filled out for the city was the one approved by the Colorado Attorney General's Office and said "that should be sufficient."
Carwile's original spending report does not contain an itemized expense list, but it does show he spent a total of $363.34.
Wohl said an amended spending report probably would not rise to the level of a violation if the original was submitted on time.