IN RE: Hoffa Unity Slate,
Protest Decision 2001 EAD 380
Issued: June 4, 2001
OEA Case Nos. PR103002NA, PR030713NA and PR030714NA
The Hoffa Unity slate filed the above-captioned pre-election protests pursuant to Article XIII, Section 2(b) of the Rules for the 2000-2001 IBT International Union Delegate and Officer Election ("Rules"). Protest No. PR103002NA was the subject of our recent decision in 2001 EAD 370 (May 16, 2001), appeal pending. The other protests allege several violations of the campaign finance reporting provisions of the Rules by Teamsters for a Democratic Union ("TDU"), the Teamster Rank and File Education and Legal Defense Fund ("TRF"), the Tom Leedham Rank and File Power Slate ("Leedham slate") and by Leedham slate members Ashley McNeely and Jeff Cederbaum.
Election Administrator representatives Bruce Dubinsky and Lisa Sonia Taylor investigated the protests.
Findings of Fact and Analysis
We address the merits of the protests seriatim. Part 2.C & D of this decision also relates to the questions raised by Protest Case No. PR103002NA, and resolved in 2001 EAD 370, supra. We begin with our resolution of claims by TDU and TRF that the protests against them are untimely.
1. Timeliness. The Hoffa slate filed these two protests on March 7, 2001.[1] TDU and TRF assert that the protests are untimely, noting that their CCER reports for the third CCER filing period ending January 31, 2001 ("CCER 3") were filed on February 22, 2001.
Article XIII, Section 2(b) of the Rules states, "Except as otherwise provided . . . all other pre-election protests . . . must be filed within two (2) working days of the day the protester becomes aware or reasonably should have become aware of the action protested or such protests shall be waived."
The time limits established by the Rules for filing protests are not absolute jurisdictional requirements, but rather prudential restrictions. See Ruscigno, P144 (October 4, 1995), aff'd, 95 EAM 25 (October 18, 1995). Here, the Hoffa slate received copies of the TDU's and TRF's CCER 3 reports on February 26, 2001. Its protests were not filed until March 7, 2001, seven working days later. The protests are thus untimely under Article XIII, Section 2(b). However, we will not dismiss these protests based on their untimeliness, and will instead resolve them due to the likelihood that similar allegations may arise with respect to future CCER filings, and in light of the need to provide the parties with continuing guidance and oversight in this important area.
2. Allegations in PR030713NA.
A. The first of the two Hoffa slate protests alleges that TDU's CCER 3 improperly fails to identify the individuals or entities to which refunds were given for TDU "Convention registration." These refunds were the subject of our decision in Taylor, 2000 EAD 75 (December 29, 2000). TDU argues that the identities of the attendees at TDU's convention should not be subject to disclosure because the identities of conference attendees should be kept confidential.
We concur with this argument and DENY this protest allegation. On September 15, 2000, the Election Administrator submitted a letter to Patrick Szymanski, IBT General Counsel, and Karen Konigsberg, Assistant U.S. Attorney in the Southern District of New York, regarding the disclosure requirements for independent committees. That letter recognized the important interest in non-disclosure of TDU supporters/members. It stated:
Independent committees should file the schedules which accompany the summary reports in two forms -- filled out in full and redacted. In redacting the schedules, independent committees should delete references to the identity of contributors or their local unions and the amount of each contribution…. Independent committees should also redact from the expenditure schedules any reference to the identity of their members or their local unions. All unredacted materials will be made available to nominated or accredited candidates for international office as provided in Article XI, § 2(e) of the Rules.
TDU properly followed this approach, and is not required to publicly identify its members on its redacted CCER that is available for distribution under the Rules.
B. The first Hoffa slate protest further alleges that TDU's CCER 3 improperly failed to report the mailing addresses for vendors identified as "I-CAT ONLINE" and "Travel Services." TDU claims that I-CAT ONLINE is an online vendor for which TDU has no mailing address. We have determined that I-CAT Online is a division of Intel Online Services, 2200 Mission College Blvd., Santa Clara, CA 95052. We have been unable to determine an address for Travel Services.
All entities that are required to submit a CCER must provide the full name and mailing address of the vendors paid, the date of payment, the purpose of the disbursement, the total disbursement for that period, and the total disbursements to date. Because TDU failed to provide this information in the manner alleged, we GRANT this protest allegation and order TDU to file an amendment to its CCER report by June 14, 2001 stating the mailing addresses for I-CAT ONLINE and Travel Services.
C. The first Hoffa slate protest next alleges that TRF failed to report any travel by TDU staff or members that may have been financed through Northwest Airlines companion passes provided by Northwest employee Ashley McNeely. That travel was addressed in our decisions in 2001 EAD 204 (March 1, 2001), aff'd on other grounds, 01 EAM 54 (March 28, 2001), and 2001 EAD 370 (May 16, 2001), appeal pending. In 2001 EAD 370, we found that McNeely provided companion passes to certain individuals affiliated with TDU, but that the evidence did not establish that those passes were used for campaign purposes. Accordingly, we held that "the donations of those passes were not campaign contributions under the Rules." We reaffirm that finding and accordingly DENY this protest allegation.
D. The first Hoffa slate protest next alleges that McNeely, an International officer candidate on the Leedham slate, reported no contributions or expenditures in her CCER 3 (covering the period from October 1, 2000 through January 31, 2001) and to date has reported only $940.00 in expenditures. The slate alleges that "[a]s was clearly made clear in [the] decision in 200[1] EAD 204, McNeely was involved in the extensive misuse for campaign purposes of her employer provided travel privileges provided by NWA [Northwest Airlines]" and failed "to report her involvement in providing extensive campaign related travel to herself, members of the Leedham slate and others in her CCERs." The protest also alleges that Cederbaum's CCER does not reflect his travel expenses or in-kind contribution of travel passes from McNeely.
The Leedham slate's amended CCER 3 reports in-kind contributions from McNeely to the slate for her payment of her cost for three campaign round-trips for Leedham, one campaign round-trip for Leedham slate candidate Cederbaum, and one campaign round-trip for Leedham slate candidate Willie Hardy.[2] The amounts so reported on the Leedham slate CCER do not include the amount subsidized by Northwest, an amount determined in our decision in 2001 EAD 370, and promptly repaid by the Leedham slate to Northwest. The order in that decision further required the Leedham slate to "amend its CCER filings to reflect the receipt and repayment of the improper contributions" from Northwest and to file the affidavits required by Article XI, Section 1(b)(13) of the Rules. The matter of the Northwest contributions was thus resolved in 2001 EAD 370.
The Hoffa slate has appealed that decision to the Election Appeals Master. It asserts in a supplement to its appeal that the matter should be remanded in order to provide "a more detailed accounting identifying each and every trip and how the Election Administrator arrived at the [reimbursement] numbers." In order to preclude any need for such a remand, we provide the following table of campaign trips subsidized by McNeely's Northwest companion passes, explaining the calculations that resulted in the order to reimburse Northwest the amounts set forth in 2001 EAD 370 [3]:
June 15-18, 2000: Leedham, Portland-Detroit-Portland, Northwest internet fare[4] = $434.50; amount charged to McNeely and repaid by Leedham on July 11, 2000 = $192.00[5]; value of Northwest contribution returnable to Northwest = $242.50.
July 13-16, 2000: Leedham, Portland-Minneapolis-Portland, Northwest internet fare = $420.00; amount charged to McNeely and paid by Minnesota Tom Leedham Campaign Committee through a payment to McNeely, who in turn paid Northwest = $154.00; value of Northwest contribution returnable to Northwest = $266.00.
September 8-10, 2000: Leedham, Portland-Chicago-Portland, Northwest internet fare = $306.50; amount charged to McNeely and paid by her = $206.00; value of Northwest contribution returnable to Northwest = $100.50.
October 7-10, 2000: Cederbaum, Hartford-Minneapolis-Hartford, Northwest internet fare = $370.00; amount charged to McNeely and paid by her = $156.00; value of Northwest contribution returnable to Northwest = $214.00.
October 13-15, 2000: Leedham, Portland-Chicago-Portland, Northwest internet fare = $306.50; amount charged to McNeely and paid by her = $206.00; value of Northwest contribution returnable to Northwest = $100.50.
November 2-5, 2000: Leedham, Portland-Cleveland-Portland, Northwest internet fare = $505.00; amount charged to McNeely and paid by her = $198.00; value of Northwest contribution returnable to Northwest = $307.00.
November 17-19, 2000: Hardy, Memphis-New York and Philadelphia-Memphis, Northwest internet fare = $326.75; amount charged to McNeely and paid by her = $128.00; value of Northwest contribution returnable to Northwest = $198.75.
Total Leedham reimbursement due Northwest = $1016.50 ($242.50 + $266.00 + $100.50 + $100.50 + $307.00 = $1016.50).
Total Hardy reimbursement due Northwest = $198.75.
Total Cederbaum reimbursement due Northwest = $214.00.
The Leedham slate's CCER 3 properly reported as in-kind contributions from McNeely her payment of the non-Northwest subsidized portion of the cost of five of the seven campaign trips listed above.[6] In addition, as indicated above, McNeely was reimbursed her share of two of the seven campaign trips listed above (the June 15-18, 2000 trip and the July 13-16, 2000 trip), the first by Leedham himself and the second by the Minnesota Tom Leedham Campaign Committee.[7] Northwest billed McNeely for her liability for the employee cost of those two trips after the trips had been completed. However, McNeely's liability for the employee share of the cost of those trips accrued on the date the trips commenced (June 15 and July 13, 2000, respectively), not on the later billing dates. The question thus presented is whether the repayments to McNeely after the liability accrual date resulted in a CCER reportable extension of credit by McNeely.
In Leedham Slate, 2001 EAD 355 (May 9, 2001) we held that so long as an accrued liability for goods or services is paid by the end of the month following the month in which those goods or services are received or rendered, it need not be reported as an extension of credit. We also held there that when goods or services are received or rendered and not paid for by a campaign by the end of the month following the month in which they are received or rendered, the obligation accrued by the campaign for those goods or services must be reported by the campaign as an extension of credit.[8]
Here, the liability for the employee share of the two Leedham trips not ultimately paid for by McNeely was in each case repaid to McNeely before the end of the month following the month in which those trips commenced, and in which the liability thus accrued. Thus, Leedham repaid the employee share of the June 15 trip on July 11, 2000, and the Minnesota committee repaid the employee share of the July 13 trip on August 12, 2000. Under Leedham Slate, therefore, there was no reportable extension of credit by McNeely and thus no CCER violation for failure to report such an extension of credit.
Similarly, there is no reporting violation concerning Leedham's payment to McNeely for the employee share of the cost of the June 15 trip. Leedham paid for that trip from his personal funds and included the amount paid to McNeely in his CCER 2 as part of his own in-kind contribution of $442.00 for the cost of the June 15 trip.[9] That report is what is required in this instance, where the candidate paid for his own travel costs from his personal funds. See Advisory on Campaign Contributions and Disclosure, Part II.B(3) (September 27, 2000).
As for McNeely's contributions of the unreimbursed employee share for five round-trip companion pass travel itineraries to her slate mates, the contributed amounts as reported on amended Leedham slate CCER 3 count towards the contribution limits applicable to McNeely under Article XI, Section 1(b)(12)(B) of the Rules. However, we DENY the Hoffa slate's allegation that McNeely should have reported these contributions to her slate mates on her own CCER, since the contributions were made from McNeely's personal funds, not her campaign funds. The amounts she contributed were properly reported on the Leedham slate CCER 3. For the reasons stated above, we also DENY the Hoffa slate's allegations of additional CCER violations by Leedham or the Leedham slate based on the Northwest companion pass campaign trips. Leedham's reporting failure concerned the employer-subsidized portion of the companion passes for campaign purposes. That was addressed in our remedy in 2001 EAD 370.
E. The first Hoffa slate protest last alleges that refunds to various individuals listed in the Leedham slate's CCER 3 were not previously reported on any of the slate's earlier CCERs, which the Hoffa slate suggests raises a suspicion of prior improper reporting in violation of the Rules. This allegation is without merit and is DENIED. Our investigation confirmed that the Leedham slate refunds were of surplus funds from the previous election period that were returned pursuant to the Election Administrator's directive in our December 6, 2000 Second Addendum to Advisory on Campaign Contributions and Disclosure.
3. Allegation in Protest PR030714NA
This protest alleges that TDU failed to file an amended CCER disclosing pre-May 1, 2000 contributions and expenditures as required by our order in 2000 EAD 75 (December 29, 2000).
TDU did in fact fail to file an amended CCER 1, although it did submit in unredacted form the data required by 2000 EAD 75. Counsel for TDU and TRF has informed us that the amended report was held in her office pending the resolution of the decision in 01 EAM 59 (May 24, 2001), concerning the funding of legal and accounting services by non-professionals. This is an insufficient reason to avoid filing the amended CCER. We accordingly GRANT this protest allegation and order the filing to be accomplished by no later than June 14, 2001. TDU and TRF will also be required to review the Election Administrator's Third Addendum to Advisory on Campaign Contributions and Disclosure dated May 31, 2001, and to file amended CCERs, if necessary to comply with the directives in that Addendum. Any such amended CCERs must also be filed by TDU and TRF in both redacted and unredacted form.
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 15th Street, N.W., 10th Floor, Washington, D.C. 20005 (fax: 202-454-1501), all within the time prescribed above. A copy of the protest must accompany the request for hearing.
William A. Wertheimer, Jr.
William A. Wertheimer, Jr.
Election Administrator
cc: Kenneth Conboy
2001 EAD 380
DISTRIBUTION LIST (BY UPS NEXT DAY AIR UNLESS OTHERWISE SPECIFIED):
|
Patrick J. Szymanski Bradley T. Raymond J. Douglas Korney Barbara Harvey Tom Leedham Todd Thompson |
Betty Grdina Teamsters for Democratic Union Bruce G. Dubinsky IBT Local 2000 Teamster Rank & File Education and Legal Defense Fund Ashley McNeely Jeff Cedarbaum Willie Hardy |
[1] In 01 EAM 59 (May 24, 2001), the Election Appeals Master followed the recommendation of the Election Administrator and reversed 2001 EAD 256 (March 23, 2001), holding that "[l]egal and accounting services provided by non-professional [TDU/TRF] staff may be funded through legal and accounting funds as long as the services come under the definition of "legal services" and "accounting services" as outlined by the EA in his advisory." (The reference to an advisory is to the advisory discussed in 2001 EAD 256, which has since been issued in the Election Administrator's May 31, 2001 Third Addendum to Advisory on Campaign Contributions and Disclosure (the "Third Addendum"), and is discussed below.) 01 EAM 59 and 2001 EAD 256 thus addressed allegations by the Hoffa slate made in PR030713NA that TRF had improperly reported expenditures for services of non-professionals as legal and accounting expenditures, and improperly funded those expenditures from legal and accounting funds. The Election Appeals Master's decision in 01 EAM 59 ordered TDU and TRF "to provide the EA the necessary details of the alleged legal and accounting services" claimed to be subject to payment from TDU/TRF legal and accounting funds. As part of its compliance with this order, TDU and TRF will be required to ensure that their CCERs for all reporting periods are consistent with 01 EAM 59 and the analysis of legal and accounting fund expenditures set out in the Third Addendum. As a result, the legal and accounting expenditure allegations of Hoffa slate protest PR030713NA will be dealt with as compliance issues following the order in 01 EAM 59.
[2] The single round-trips by Cederbaum and Hardy were the only campaign-related companion pass travel by them.
[3] 2001 EAD 370 ordered an overreimbursement by Hardy of $28.00. The total to be reimbursed by Hardy should have been $198.75 rather than $226.75.
[5] Leedham overpaid McNeely $6.00. His July 11, 2000 check to her was for $198.00.
[6] The Leedham slate listed the wrong dates for the in-kind donation for the five trips for which McNeely bore the non-Northwest subsidized portion of the cost. Four of the five in-kind contributions from McNeely were listed as January 27, 2001, apparently the billing date, while the fifth contribution date listed was November 13, 2000. In each case, the Leedham campaign should have listed the in-kind contribution as having been made on the date the trip commenced. It should correct its CCER 2 to reflect this.
[7] Leedham's payment to McNeely for the June 15-18, 2000 trip was reported by him in his individual CCER 2 as part of an in-kind contribution by Leedham of $442.00 from his own funds for travel on June 15-18, 2000, since the cost of that trip was paid for by Leedham from his own personal funds. The Minnesota Tom Leedham Campaign Committee reported its August 12, 2000 payment to McNeely of $184.00 for her share of Leedham's July 13-16, 2000 trip from Portland to Minneapolis and back as an expenditure to Northwest, rather than to McNeely. In addition, McNeely was only charged $154.00 by Northwest for this fare, rather than the $184.00 paid to her by the Minnesota Committee. If she has retained that additional $30.00 she should return it to the Minnesota Committee.
[8] This is so even where the campaign subsequently pays for those goods and services after the end of the month following the month in which they are received or rendered, but before the closing date of the CCER reporting period in which the payment is made. 2001 EAD 355, supra.
[9] No CCER reporting protest was filed against the Minnesota Committee.