DENVER—The Administrative Hearing Officer (“AHO”) in the Colorado Secretary of State’s office handed down an initial decision on October 15, 2024, in the matter of Donna Okray- Parman. This case remains open through the period of potential appeal and review by the Deputy Secretary, according to the decision document.

According to the facts of the case as written in the decision, “On June 1, 2024, Respondent Donna Okray-Parman mailed 2,700 postcards to “almost all residential addresses in Gilpin County.” The postcards unambiguously refer to Jessica Kays as a candidate for Gilpin County Commissioner, District 1, in 2024. Kays filed a Campaign Finance Complaint against Okray-Parman, received by the Elections Division on June 6, 2024.

The Division went through the normal investigation process, which led to the filing of an administrative complaint on August 7, 2024. “Under Colorado law, an electioneering communication is one that (I) unambiguously refers to any candidate for public office, (II) is mailed within thirty days before a primary election, and (III) is mailed to an audience including members of the electorate for such public office.”

“[T]he electorate was concerned with regulating. . . speech designed to influence the outcome of Colorado elections. When a person expends $1,000 or more per calendar year on electioneering communications—in this case postcards—those communications must include a statutorily compliant disclaimer telling recipients who paid for the communication.”  

The expenditure must also be reported to the Secretary of State. The postcards sent by the respondent cost $1,015.88 to print, and $565.56 to mail, for a total expenditure by Okray-Parman of $1,581.44.

“The 2,700 postcards refer to Kays and Kays’ candidacy for County Commissioner and would tend to influence the outcome of Colorado elections. Respondent mailed the postcards on June 1, 2024, twenty-four days before the June 25, 2024, Republican primary election….  

“The postcards did not include a compliant disclaimer, and Respondent did not report the $1,581.44 expenditure to the Secretary of State….

“The proponent of a request for remedy or relief shall have the burden of proof. But Respondent bears the burden of proving any affirmative defenses….”

Okray-Parman violated the law by failing to include a disclaimer on the postcards that includes a clear “paid for by” disclaimer, identifying who was responsible for the communication.

“The postcards do not contain this disclaimer. The information on the disclaimer would have provided transparency by telling voters who is behind…the information they received. Without such a disclaimer, voters receiving the Okray-Parman postcard were deprived of additional data that could have helped them evaluate the credibility of, and process the assertions in, the postcard.

“Ms. Okray-Parman readily admits to the facts that support a finding that these violations occurred. Her defenses to the violations seem to be these: she was unaware of these campaign finance laws; she is not a ‘campaign committee’ and therefore not subject to the disclaimer and reporting requirements; she should not have to ask permission of the government to send information to voters,” states the decision.

According to the decision, Parman had two reporting obligations: She must report to the Secretary of State her own name and address, the method of communication, the amount spent on the electioneering communication, and the name of the candidate referred to in the communication. She must report to the Secretary of State the names and addresses of any person who contributed $250 or more toward the electioneering communications that targeted Kays.

“The violations have been proved by a preponderance of the evidence.”

For the disclaimer violation, Okray-Parman spent a total of $1,581.44 to print and distribute the postcards. The fine for such a violation is “at least 10 percent of the cost of the communication including cost to broadcast…. Respondent is hereby fined $158.14 for the disclaimer violation.”

For failure to report, she so far has failed to report the total expenditure of $1,581.44. The fine for that violation is $100 plus 5 percent of the amount not reported. “Respondent is hereby fined $179.08 for the violation. The total fine assessed to Respondent is $337.22, which must be paid to the Secretary of State.”

According to the decision, “Respondent Donna Okray-Parman is hereby ordered on or before November 13, 2024, to use the Tracer system of the Colorado Secretary of State to report the money that she spent to create and distribute the electioneering communication at issue here, and to report on the Tracer system the name and address of any person that contributed more than two hundred fifty dollars for or in support of the communication.”

Furthermore, “The Deputy Secretary has initiated review on his own motion, and as a result, the Deputy Secretary has discretion to issue a Final Agency Order with a different result than that recommended in the Initial Decision.” To challenge the Initial Decision, either party must file exceptions with the Deputy Secretary.

“The Deputy Secretary may affirm, set aside, or modify any, all, some, or no parts of the Initial Decision….Under most circumstances, the Deputy Secretary will issue a Final Agency Order at the conclusion of his review.”

On occasion, however, the Deputy Secretary may conclude that either the factual basis or legal analysis, or both, in the initial decision are insufficient to complete an appropriate review of the case. In that situation, there is a lengthy appeal process.

At the conclusion of any appeal, the ultimate Final Agency Order is subject to judicial review.

The exceptions deadline is November 4. 2024.