IN RE: HOFFA 2006, Protestor.
Protest Decision 2006 ESD 331
Issued: July 19, 2006
OES Case Nos. P-06-252-040506-HQ & P-06-298-062406-HQ
Hoffa 2006 filed 2 pre-election protests pursuant to Article XIII, Section 2(b) of the Rules for the 2005-2006 IBT International Union Delegate and Officer Election ("Rules"). The protests alleged that candidate Don DiLeo failed to file CCERs as required by the Rules.
We issued our decision granting these protests in Hoffa 2006, 2006 ESD 313 (June 28, 2006). As remedy, we ordered the following:
We order DiLeo to file the required CCER for reporting periods 3 and 4 no later than Wednesday, July 12, 2006. Should DiLeo fail to make the filings we order by that date, we will assess a fine of $250.00 for each working day until he has completed both filings. We further order DiLeo to meet each CCER filing deadline for the balance of the International officer election, unless he applies to our office in advance of any such deadline for an extension of time to file. Any such application for extension of time may be granted only for good cause.
Hoffa 2006 appealed our determination, arguing that candidate DiLeo should be disqualified from seeking office and his nomination to the ballot rendered null and void because of his failure to file the 2 CCERs timely.
The Election Appeals Master rejected the requested remedy of Hoffa 2006. Nonetheless, the Election Appeals Master vacated the remedy, writing as follows:
The Election Supervisor imposed no penalty, and during the Hearing expressed a surprising indifference to the violations he found. This outcome sends the unfortunate message that the CCER filings requirement of the Rules is nominal, trivial and not especially material to the integrity of the election process. Accordingly, the decision must be reversed and vacated.
The matter is remanded for imposition of an appropriate penalty.
Hoffa 2006, 06 EAM 55 (July 11, 2006).
DiLeo filed his CCER reports for periods 3 and 4 on July 11, 2006, in advance of the extension we granted in 2006 ESD 313. CCER #3 showed total contributions of $197.92. All of these contributions were in-kind; none was monetary. CCER #3 showed no expenditures. CCER #4 showed total contributions of $334.19. Again, all of these contributions were in-kind; none was monetary. CCER #4, like the previous report, showed no expenditures. The total value of contributions to support DiLeo's candidacy, as specified on the reports DiLeo was required to make, was $532.11, all of which was in-kind. The reported in-kind services consisted of donated printing, copying, faxing, and cell phone usage. DiLeo's CCER, signed electronically by him and declared under penalty of perjury to be true, correct and complete, stated that he had not, as of the last reporting period, opened a campaign bank account, accepted monetary contributions from anyone, or had any campaign expenditures. Our office has no knowledge of any such contributions or other activity. A protest ruling issued in March 2006 related to DiLeo's distribution of a piece of campaign material by fax, Hoffa 2006, 2006 ESD 160 (March 28, 2006), and the activity discussed there is consistent with the nature, amount and timing of the in-kind activities reported on his CCERs. No other protests have been filed that reference field campaign activity on DiLeo's part.
The Election Appeals Master has directed us to impose an appropriate penalty on DiLeo to correct his failure to file his CCER reports timely. In fashioning the appropriate remedy, the Election Supervisor views the nature and seriousness of the violation as well as its potential for interfering with the election process.
We devote substantial resources to policing the financial integrity of the election process. Our activities in this regard include providing technical assistance to known candidates in satisfying their reporting requirements in a timely fashion and conducting forensic audits of the reports filed. We frequently grant brief extensions of time in which to file reports when candidates state a good reason for needing additional time, but we do not believe that permitting untimely filings signals indifference to the filing requirement or the financial integrity of the process. Our objective in granting extensions is to allow candidates a fair opportunity to submit reports that are complete and in compliance. In most cases where extensions are granted, the candidate or committee files by the extended date. In the rare circumstance in which the candidate fails to satisfy the filing requirement by the extended date, we have made contact with the candidate's CCER preparer and provided the technical assistance necessary to insure an expeditious filing. Thus, in Ostrach, 2006 ESD 154 (March 20, 2006), Hoffa slate member Fred Gegare failed to file by the deadline set forth in the Rules or by an extension we granted; we responded by guiding Gegare's report preparer through the filing process, and the report was filed 30 days late, and 11 days after expiration of our extension. We deemed the protest filed by Ostrach resolved and imposed no penalty. In that circumstance, we were aware of the technical difficulties the preparer faced in completing the report, and knew that the preparer was working diligently day by day to complete the report. We further note that we have denied requests for extensions of more than one day when the request was based on nothing more than the personal convenience of the candidate, such as a claimed inability to access the internet.
The Election Appeals Master directed us to impose a penalty in this case. We do so as directed. While DiLeo met our extended deadline as imposed, on pain of financial penalties, he was an active candidate during the months before the convention, knew that there were filing obligations (indeed, his fax distribution of campaign literature was the subject of a protest) and took no steps in that time to make the required filings. In imposing a penalty, however, we consider it significant that DiLeo had only in-kind contributions through May 31, 2006 and did not receive monetary contributions from anyone.
Accordingly, we order DiLeo, within 3 working days of receipt of this decision, to pay a fine to the Office of the Election Supervisor equivalent to 15% of the amount of contributions reported on the untimely reports. As noted, those contributions total $532.11; the fine, therefore, is $80.00. We further order DiLeo to meet each CCER filing deadline for the balance of the International officer election, unless he applies to our office in advance of any such deadline for an extension of time to file. Any such application for extension of time may be granted only for good cause.
This decision will serve notice that similarly situated candidates will be treated similarly.
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 Supervisor 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
885 Third Avenue, Suite 1000
New York, New York 10022
Fax: (212) 751-4864
Copies of the request for hearing must be served upon the parties, as well as upon the Election Supervisor for the International Brotherhood of Teamsters, 1725 K Street, N.W., Suite 1400, Washington, D.C. 20006-1416, all within the time prescribed above. A copy of the protest must accompany the request for hearing.
Richard W. Mark
Election Supervisor
cc: Kenneth Conboy
2006 ESD 331
DISTRIBUTION LIST (BY EMAIL UNLESS OTHERWISE SPECIFIED):
Bradley T. Raymond, General Counsel
International Brotherhood of Teamsters
25 Louisiana Avenue, NW
Washington, DC 20001-2198
braymond@teamster.org
David J. Hoffa
Hoffa 2006
30300 Northwestern Highway, Suite 324
Farmington Hills, MI 48834
David@hoffapllc.com
Barbara Harvey
645 Griswold Street
Suite 3060
Detroit, MI 48226
blmharvey@sbcglobal.net
Ken Paff
Teamsters for a Democratic Union
P.O. Box 10128
Detroit, MI 48210
ken@tdu.org
Daniel E. Clifton
Lewis, Clifton & Nikolaidis, P.C.
275 Seventh Avenue, Suite 2300
New York, NY 10001
dclifton@lcnlaw.com
Stephen Ostrach
1863 Pioneer Parkway East, #217
Springfield, OR 97477-3907
saostrach@gmail.com
Don DiLeo
P.O. Box 2025
Union, NJ 07083
Steven Newmark
Office of the Election Supervisor
International Brotherhood of Teamsters
1725 K Street, N.W., Suite 1400
Washington, DC 20006
snewmark@ibtvote.org
Jeffrey Ellison
510 Highland Avenue, #325
Milford, MI 48381
EllisonEsq@aol.com