ELECTION APPEALS MASTER
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IN RE FRED ZUCKERMAN and
HOFFA-HALL 2016,
2015-2016 EAM 35 (KAR) (ESD 340) PROTESTORS.
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Protest Decision 2016 ESD 340 (ESD 340) was issued on December 12, 2016. ESD 340 addresses two protests: the first, filed by Fred Zuckerman, candidate for IBT General President on the Teamsters United slate, alleged that Alex Moran, a supporter of Hoffa-Hall 2016, struck Richard Galvan, while Mr. Galvan was leafleting on behalf of Teamsters United; the second, filed by Hoffa-Hall 2016, alleged that Mr. Galvan provoked the incident and made aggressive physical contact with Mr. Moran. The two protests were consolidated for decision.
Decisions of the Election Supervisor
The Election Supervisor denied both protests.
Appeal of ESD 340
Mr. Zuckerman, represented by David Suetholz, Esq., timely appealed ESD 340, stating:
- The decision is not supported by the substantial evidence presented to the investigator.
Mr. Zuckerman requests the opportunity to present either affidavits or testimony to the Appeals Master in support of this appeal. In so doing, it should be noted that Mr. Zuckerman has not availed himself of the opportunity to rely on evidence not presented to the Election Supervisor until now. The extraordinary circumstance that justifies this request are statements from material witnesses allegedly quoted in the decision who disagree with statements attributed to them.
Mr. Zuckerman intends to file a pre-hearing submission more fully explaining the basis of his appeal.
On December 20, the Hoffa Campaign objected to “Mr. Suetholz’ request to add evidence to the record not presented at the time the protest was filed or investigated. The rules are clear that new evidence is barred on appeal. There are no ‘extraordinary circumstances’ that would merit new information, especially given that this protest is from July.”
On December 29, 2016, the Election Supervisor submitted a motion to dismiss the appeal for failure to comply with the terms of Article XIII, Section 2(i) of the Rules, which requires that “[t]he appeal shall be made in writing and shall specify the basis for the appeal.” The Election Supervisor argued that the appeal does not comply with the Rules because it does not “identify with particularity any error it claimed the Election Supervisor made.”
Mr. Suetholz replied on December 29, asserting that the notice of appeal complied with the Rules, and stating:
The protest decided in 2016 ESD 340 against Fred Zuckerman concerned threats and actual violence by Alex Moran, a Hoffa-Hall 2016 supporter against Ricard Galvan, an announced candidate for International Vice President for the Western Region on the fred Zuckerman/Teamsters United slate. The Election Supervisor summarized statements from witnesses to the July 22, 2016 incident and ultimately concluded that though Moran admittedly ‘raised his right forearm’ and made physical contact with Galvan, it was Galvan who initiated the contact.
The Election Supervisor quoted two witnesses, Edgar Esquivel and Leslie Garrett and attributed statements that supported its conclusion that Galvan was the aggressor. Both individuals read the summaries contained in 2016 ESD 340 and do not recognize the stories they recounted. Both wanted the opportunity to tell the Appeals Master that their testimony was incorrectly summarized in the decision and to ask that the protest be remanded for further investigation in light of their misconstrued testimony.
The Appeal of 2016 ESD 340 is rooted in witnesses who participated in and reject the summaries of their testimony. To the extent that the Election Supervisor needed clarification to respond, he now has the specific challenges provided in advance of the hearing.
A telephonic hearing was held on January 3, 2017, which was attended by: Jeffrey J. Ellison, Esq., on behalf of the Election Supervisor; Peter Marks, Michael Miller and Deborah Schaaf (OES Investigators); David Suetholz, Esq., David J. Hoffa, Esq., attorney for the Hoffa Campaign, Alex Moran, Leslie Garrett, Richard Galvan, Jay Phillips, Edgar Esquivel, and Dennis Corrigan.
At the hearing, witnesses Leslie Garrett and Edgar Esquivel denied telling the OES Investigator that Mr. Galvan “charged” Mr. Moran. Mr. Galvan reiterated his denial of being the aggressor. Counsel for Mr. Zuckerman acknowledged that the substance of this evidence was known to him at the time of the appeal.
Decision of the Election Appeals Master
I agree with the Election Supervisor that the appeal failed to comply with the Rules. Viewed in the light most favorable to the appellant, the appeal asserted that certain unnamed witnesses disagreed with unidentified statements attributed to them by the Election Supervisor. The Election Supervisor cannot effectively respond to or prepare for an appellate hearing on such vague assertions. Bucalo, 2016 EAM 22 (May 31, 2016); Webb, 11 EAM 16 (February 4, 2011). Here, as in Bucalo, based upon the response to the motion to dismiss and the presentation at the telephonic hearing, none of the evidence presented by appellant was unavailable to him when he filed his appeal and could have been submitted at that time. The failure to do so is inexcusable. Nor is the deficiency in the appeal adequately remedied by providing additional information in response to a motion to dismiss.
Conclusion
For the foregoing reasons, the appeal of ESD 340 is DISMISSED.
SO ORDERED.
/s/____________________________________
KATHLEEN A. ROBERTS
ELECTION APPEALS MASTER
DATED: January 13, 2017