Protest Decisions

IN RE: FRIENDS OF TOM O'DONNELL ELECTION COMMITTEE.
Decision 2001 EAD 253
Issued: March 21, 2001

Pursuant to Article XIII, Section 4 of the Rules for the 2000-2001 IBT International Union Delegate and Officer Election ("Rules"), we have investigated the propriety of a certain monetary contribution to the Friends of Tom O'Donnell Election Committee (the "Committee"). Our investigation has revealed a violation of Article XI, Section 1(b)(1) of the Rules by the Committee, and we accordingly issue this decision under the authority of Article XIII, Section 4 to order a remedy for that violation.

Election Administrator forensic accountant Bruce Dubinsky investigated this matter.

Findings of Fact and Analysis

Tom O'Donnell is a candidate for International Vice-President on the Hoffa 2001 Unity slate ("Hoffa slate"). He has been president of IBT Local 817 for 38 years. He was director of the IBT's Motion Picture and Theatrical Trade Division from 1989 to 1994. The Committee supports his election to the post of International Vice-President.

In its CCER #2, the Committee reported a monetary contribution of $35,735.00. Our inquiry determined that these funds were rolled over to the Committee from contributions made in support of O'Donnell in prior IBT elections.

In the Second Addendum to Advisory on Campaign Contributions and Disclosure issued by this office on December 6, 2000 (the "Addendum"), we noted that our original September 27, 2000 campaign finance advisory had stated that "in certain circumstances candidates, slates or independent committees who had retained surplus funds from a previous election could use those funds in th[e 2000-2001] election."

The Addendum declared that statement to be in error, based on this office's reading of Article XI, Section 1(b)(1) of the Rules, which provides that "[o]nly contributions which are properly solicited, made, accepted and reported under these Rules may be expended or used by candidates, slates or independent committees for the 2000-2001 International Union Delegate and Officer Election." Thus, contributions are proper and may be accepted and used in the 2000-2001 election only if they were solicited, made and accepted for use in that election.

The Addendum noted that this reading of Article XI, Section 1(b)(1) of the Rules is reinforced by the negotiations that led to the Rules. Thus, in those negotiations the IBT specifically proposed language under which surplus funds could have been used. That proposal was not adopted.

The Addendum was circulated to each IBT local union and published on this office's internet website. It directed that all surplus fund contributions be promptly returned and that appropriate affidavits be filed under Article XI, Section 1(b)(13) of the Rules.

Despite this, the Committee has not returned the surplus funds. Accordingly, we find that the Committee has violated Article XI, Section 1(b)(1) of the Rules.

Remedy

When the Rules have been violated, the Election Administrator "may take whatever remedial action is appropriate." Article XIII, Section 4. In fashioning the appropriate remedy, the Election Administrator considers the nature and seriousness of the violation, as well as its potential for interfering with the election process. Based on the foregoing, the Election Administrator orders the following:

1. Within two (2) working days of receipt of this decision, the Committee shall return the $35,735.00 in surplus funds to their source or to a public charity, with interest at the current prime rate. In no event, however, may such funds be made available for O'Donnell's personal use.

2. The Committee shall file an affidavit of compliance with paragraph 1 of this order within three (3) working days of its receipt of this decision. The affidavit shall provide the information required by Article XI, Section 1(b)(13) of the Rules.

3. The Committee shall cease and desist from any further violation of Article XI of the Rules.

Any interested party not satisfied with this determination may request a hearing before the Election Appeals Master within two (2) working days of receipt of this decision. The parties are reminded that, absent extraordinary circumstances, no party may rely upon evidence that was not presented to the Office of the Election Administrator in any such appeal. Requests for a hearing shall be made in writing, shall specify the basis for the appeal, and shall be served upon:

Kenneth Conboy

Election Appeals Master

Latham & Watkins

Suite 1000

885 Third Avenue

New York, New York 10022

Fax: 212-751-4864

Copies of the request for hearing must be served upon all other parties, as well as upon the Election Administrator for the International Brotherhood of Teamsters, 727 15^th Street, N.W., Tenth Floor, Washington, D.C. 20005 (fax: 202-454-1501), all within the time prescribed above.

William A. Wertheimer, Jr.

William A. Wertheimer, Jr.

Election Administrator

cc: Kenneth Conboy

2001 EAD 253

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