ELECTION APPEALS MASTER
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IN RE
MOTION TO DISMISS 2015-2016 EAM 22 (KAR)
APPEALS BY SAM BUCALO AMENDED DECISION RE
2016 ESD 185, 186, 188, 189,
190, 191, 192, 193 and 196
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This decision addresses a motion by the Election Supervisor to dismiss appeals of protest decisions 2016 ESD 185, 186, 188, 189, 190, 191, 192, 193 and 196, filed by Sam Bucalo, Secretary-Treasurer of Local 100, and to deny his request for the Election Supervisor’s investigative files.
Protest decisions 2016 ESD 185, 186, 188, 189, 190, 191, 192, 193 and 196 were issued by the Election Supervisor on May 4, 2016. On May 6, 2016, Mr. Bucalo sent emails to the Election Appeals Master with respect to each of these appeals that stated:
Please let this serve as timely notice of my intention to appeal this erred decision by the Election Supervisor and in order to prepare for the appeal hearing, I request a complete copy of any and all evidence, documents and/or statements collected by the Election Supervisors in their investigation of this complaint.
I will need a reasonable time to review these documents with counsel prior to an appeal hearing.
Upon review of the investigation documents requested, I will file a pre-hearing brief with your office.
On May 9, 2016, the Election Supervisor moved to dismiss each of these appeals on the ground that they fail to comply with Article XIII, Sections 2(i) and 3(f) of the Rules, which require that “[t]he appeal shall be made in writing and shall specify the basis for the appeal.” The Election Supervisor also requested that the Election Appeals Master deny Mr. Bucalo’s request for the Election Supervisor’s investigative files.
On May 16, 2016, Mr. Bucalo submitted emails purporting to amend his appeals with respect to 2016 ESD 185, 186, 188, 189, 191, 192, 193 and 196, which included evidence supporting the appeals. Mr. Bucalo also submitted on May 16, 2016, a statement in opposition to the motion to dismiss. Mr. Bucalo withdrew his appeal of 2016 ESD 190.
A telephonic hearing with respect to the Election Supervisor’s motion was held on May 25, 2016, which was attended by Mr. Bucalo, Jeffrey J. Ellison, Esq., on behalf of the Election Supervisor, Lia Lockert (Office of the Election Supervisor); David Webster (Principal Officer, Local 100), Brian Sizemore (Business Agent, Local 100); David Hibbard (Business Agent, Local 100), David Couch (Business Agent, Local 100), and Sarah MacFarland (Clerical, Local 100).
During the telephonic hearing on May 25, 2016, Mr. Bucalo affirmed his withdrawal of the appeal of 2016 ESD 190 and also withdrew his appeal of 2016 ESD 185. Mr. Bucalo presented in specific detail the basis of his remaining appeals. Mr. Bucalo also acknowledged the authority supporting the Election Supervisor’s motion for denial of his request for the Election Supervisor’s investigative files.
Failure to Specify Basis for Appeal
Election Appeals Master Conboy explained the rationale underlying the appeal statement rule when he dismissed the appeal in Webb, 11 EAM 16 (February 4, 2011):
An appellant in protest proceedings must identify in writing in advance of the scheduling of hearing the substance of his complaint about the record, conduct or analysis underlying the disposition of a protest by the Election Supervisor under the Election Rules. To deviate from this prudent and time honored requirement would render appeals hearings excessively imprecise, interminable and ultimately unfair. (Original emphasis.)
In Gammon, 2011 EAM 19 (February 16, 2011), the Election Supervisor moved to dismiss the appeal because the appeal’s mere statement that “the ruling is contradictory to the facts” did not specify any “complaint about the record, conduct or analysis” underlying the Election Supervisor’s protest decision on which the appeal was based; accordingly, the Election Supervisor argued that he could not effectively respond to or prepare for an appellate hearing on such a vague statement. The Election Appeals Master agreed, dismissing the appeal because it “indisputably fails to set forth an adequate statement explaining why the case was wrongly decided.”
Appellant Bucalo’s May 6, 2016 emails do not meet the Rules’ appeal statement requirement. Moreover, based on his Mr. Bucalo’s May 16, 2016 “amendments” to his appeals (filed only in response to the motion to dismiss), and his presentation at the telephonic hearing, I find that none of the evidence cited by Mr. Bucalo was unavailable to him at the time he filed his appeals on May 6, 2016, and could therefore have been submitted at that time. Mr. Bucalo offered no explanation or excuse for his failure to do so. Notably, Mr. Bucalo has previously filed appeals of protest decisions in which he has specified the basis for his appeals.
The appeals of ESD 186, 188, 189, 191, 192, 193 and 196 are dismissed.
Request for Investigative Files
Mr. Bucalo’s request for the investigative files for the protests he seeks to appeal is denied for the reasons stated in the Election Supervisor’s motion to dismiss.
SO ORDERED.
/s/___________________________________
KATHLEEN A. ROBERTS
ELECTION APPEALS MASTER
DATED: May 31, 2016