Citizens Clean Elections Commission investigator Gene Lemon advised Rep. David Burnell Smith in a March 4 letter that he will recommend that Mr. Smith be ordered to forfeit his office for breaking the law that limits spending under the campaign public-funding act.

Mr. Lemon said he also will propose a $10,000 fine and recommend that Mr. Smith be required to repay money he owes the Clean Elections Fund.

Mr. Smith’s attorney, Lee Miller, said the way the Smith campaign spending was aggregated shows the law was not broken to the extent Mr. Lemon believes and the case does not require the so-called “death penalty” – forfeiture of office.

Mr. Lemon said his investigation showed Mr. Smith exceeded the spending limit by more than 10 per cent. The Clean Elections Act says such cases “shall result in disqualification of a candidate or forfeiture of office.”

Whether that language allows the CCEC to impose a lesser punishment is unknown. It never has been tested in court. The question of whether an appointed citizens’ commission can force an elected state official to resign under such circumstances also has not been tested.

The complaint against Mr. Smith originally was filed by Thom von Hapsburg, one of his opponents in the District 7 Republican primary last fall. The commission began looking into Mr. Smith’s finances last October, several weeks after the primary election. Mr. Lemon noted in his letter, which serves as the brief for his position, that after the investigation began, Mr. Smith himself acknowledged campaign overspending, “brought many of the matters under investigation to the commission’s attention” and offered to pay penalties and obligations out of his own pocket.

But that does not alter Mr. Lemon’s report in his March 4 letter that Mr. Smith spent approximately $33,000 in the primary campaign, where the limit was $24,507. The overspending, $8,000-plus, is more than triple the 10 per cent excess-spending “death penalty” margin and also is more than twice the margin for Mr. Smith’s total spending on the campaign, which according to his own auditor was $38,387.57.

Mr. Smith also broke the law, Mr. Lemon wrote, by failing to identify who was paid by his campaign committee and by not paying the Clean Elections Fund all the early and qualifying contributions he was required to pay into the fund.

Mr. Smith has insisted since the beginning that all his violations were unintentional, and that is accepted, Mr. Lemon wrote. But that does not save him, the letter says, because “the Act does not limit the commission’s enforcement actions to the imposition of penalties for intentional violations.”

Mr. Lemon is a former chairman of the CCEC. He was hired as an “external investigative consultant” for this case. —