IN RE: STEFAN OSTRACH, Protestor.
Protest Decision 2006 ESD 366
Issued: October 4, 2006
OES Case No. P-06-337-092206-HQ
Stefan Ostrach, member of Local Union 206 and treasurer of the Tom Leedham Strong Contracts Good Pensions slate, filed a pre-election protest pursuant to Article XIII, Section 2(b) of the Rules for the 2005-2006 IBT International Union Delegate and Officer Election ("Rules"). The protest alleged that the Hoffa-Kane campaign did not timely file a Campaign Contribution Expenditure Reports ("CCER"), in violation of Article XI, Section 2(d)(1)(v) of the Rules.
Election Supervisor representatives Maureen Geraghty, Paul Dever and Jeffrey Ellison investigated this protest.
Findings of Fact and Analysis
Article XI, Section 2(a)(2) of the Rules requires each candidate and slate to file CCER reports on a periodic basis. Article XI, Section 2(d)(1)(v) established September 15, 2006 as the CCER filing deadline for the 5th reporting period of June 1 through August 31, 2006.
Daniel J. Kane is a candidate for IBT Eastern Region vice president on the Hoffa 2006 slate and is the head of the Hoffa-Kane campaign. Kane first became a candidate for International office when his name was placed in nomination at the IBT convention on June 27, 2006. Accordingly, the first CCER Kane was required to file was for the 5th reporting period.
The Hoffa-Kane CCER for the 5th reporting period was filed on September 20, 2006, and therefore was untimely filed as no request was made or granted to permit the late filing. This protest followed.
Investigation of the electronic records of the CCER system showed that a CCER account was established for the Hoffa-Kane campaign on August 16, 2006. However, the first date thereafter that anyone from the Hoffa-Kane campaign, including candidate Kane, attempted to log onto the account to enter data or prepare a report was September 19. The electronic records show that, in the September 19 log-in attempt, the user requested to re-set the password, as he had apparently forgotten the password he had created in August. The system re-set the password automatically and log-in was successful one minute later.
The electronic CCER report was submitted September 20. It showed contributions and expenditures of $0. Counsel for the Hoffa 2006 campaign told our investigator that the Hoffa-Kane campaign raised funds directly for the Hoffa 2006 campaign and that the Hoffa 2006 campaign reported the activities of Hoffa-Kane on its own CCER.
In Hoffa 2006, 06 EAM 55 (July 11, 2006), the Election Appeals Master held that imposing no penalty on candidates who fail to file CCERs timely "sends the unfortunate message that the CCER filing requirement of the Rules is nominal, trivial and not especially material to the integrity of the election process." Since that date, the Election Supervisor has imposed a monetary penalty on each candidate who fails to file timely, unless that candidate demonstrated active and diligent effort to meet the filing deadline but failed to meet the filing deadline at least in part because of circumstances beyond the candidate's control. Where the candidate failed to file timely and had no acceptable excuse for the untimely filing, we have imposed monetary penalties equal to a percentage of the contributions shown on the untimely filed CCER report. See Hoffa 2006, 2006 ESD 331 (July 19, 2006); Leedham Slate, 2006 ESD 339 (August 29, 2006).
Here, the untimely Hoffa-Kane report showed $0 contributions. As such, our previous decisions setting the monetary penalty at a percentage of the contributions reported have no application to this case.
The 5th CCER report is due a mere 3 weeks before ballots are mailed. Given the close proximity to the election, untimely filing of the report for this period has the potential to impose greater disadvantage on competing candidates because tactical decisions of the various campaigns are made at a much quicker pace closer to the mailing of ballots, and those candidates are effectively denied timely information about the tardy opponent's contributions and expenditures.
For that reason, even though the Hoffa-Kane campaign untimely report showed $0 in contributions, we order the following remedy. We order Hoffa-Kane to meet each CCER filing deadline for the balance of the electoral period, unless the campaign applies to our office for an extension of time in advance of the filing deadline. Such extension will be granted only for good cause shown. Further, we impose a monetary penalty on the Hoffa-Kane campaign for the untimely filing of CCER #5 in the amount of $100. Such monetary penalty must be paid to the Office of the Election Supervisor within 5 business days of receipt of this decision. The campaign, by its counsel, has consented to this remedy. For this reason, we deem this protest RESOLVED on this basis.
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 366
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
Stefan Ostrach
1863 Pioneer Parkway East, #217
Springfield, OR 97477-3907
saostrach@gmail.com
Daniel Kane, President
Teamsters Local 111
1308 Pierce Street
Rahway, N.J. 07065
Maureen Geraghty
The Geraghty Law Firm
426 Old Salem Road
Winston-Salem, NC 27101
mg@geraghtylawfirm.com
Bruce Dubinsky
Keith Neus
Klausner Dubinsky & Associates
4520 East West Hwy, Suite 640
Bethesda, MD 20814
bdubinsky@kd-cpa.com
Jeffrey Ellison
510 Highland Avenue, #325
Milford, MI 48381
EllisonEsq@aol.com