Protest Decisions

March 1, 1996

VIA UPS OVERNIGHT

Jack Cipriani, et al.

March 1, 1996

Page 1

Jack Cipriani, President

Teamsters Local Union 391

3100 Sandy Ridge Road

Colfax, NC 27235

C. Sam Theodus, President

Teamsters Local Union 407

3150 Chester Avenue

Cleveland, OH 44114

James P. Hoffa

2593 Hounds Chase

Troy, MI 49098

Jim Cianciolo, President

Teamsters Local Union 243

2741 Trumbull Avenue

Detroit, MI 48216

Ron Carey Slate

35 E Street, N.W. #110

Washington, DC 20001

Ron Carey, General President

International Brotherhood of Teamsters

25 Louisiana Avenue, N.W.

Washington, DC 20001

Teamsters for a Democratic Union

7437 Michigan Avenue

Detroit, MI 48210

Alex Adams

14968 Carol Drive

Maple Heights, OH 44137

Jeff Chambers

45578 Yeager Drive

East Liverpool, OH 43920

Frank Dennis

18863 Leslie Drive

Brook Park, OH 44142

Tom Lavelle

5875 Lear Nagle

North Ridgeville, OH 44039

Lillian Morisky

1209 Clay Court

Brunswick, OH 44212

Jim Collum

602 Lindberg Boulevard

Berea, OH 44017

Melvin May

P.O. Box 27161

Akron, OH 44319

Ben Sizemore

25091 Garden Road

Oakwood Village, OH 44146

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Gary Clark

270 Kerry Lane

Highland, MI 48357

Susan Davis

Cohen, Weiss & Simon

330 W. 42nd Street

New York, NY 10036

Paul A. Levy

Public Citizen Litigation Group

1600 20th Street, N.W.

Washington, DC 20009

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Re:              Election Office Case Nos.              P‑420‑LU391‑SEC

P‑437‑LU407-SCE

P‑468‑TDU‑SCE

P‑512‑LU243-MGN

Gentlepersons:

Related pre‑election protests have been filed pursuant to the Rules for the 1995-1996 IBT International Union Delegate and Officer Election (“Rules”).  On February 8, 1996,

Jack Cipriani, president of Local Union 391, filed a protest (P‑420) alleging that a slate of candidates for delegate in Local Union 391 supporting General President Ron Carey obtained mailing labels for local members from Teamsters for a Democratic Union (“TDU”), the IBT and/or the Carey campaign, in violation of the IBT Constitution, the local bylaws, the consent decree, and various rules of the Election Officer.

By letter dated February 9, 1996, C. Sam Theodus, a member of Local Union 407, filed a protest (P‑437), alleging that members of a pro‑Carey slate in Local Union 407 unlawfully obtained phone lists of local members; he suspects that it was received from TDU or the IBT.

By letter dated February 15, 1996, James P. Hoffa, filed a protest (P‑468), alleging a violation of Article VIII, Section 3 of the Rules against the Ron Carey slate and TDU.  The protest alleges that TDU had improperly obtained a copy of the IBT membership list because TDU, as an independent committee under Article XII, Section 2(a)(3) of the Rules, is a “third party” that is specifically prohibited from having access to the list.  As a remedy, the protester requests that Mr. Carey be disqualified from running, that delegate slates that used the list be disqualified from running, and that contempt proceedings be filed before Judge Edelstein.

By letter dated February 21, 1996, Jim Cianciolo, president of Local Union 243, filed a protest (P‑512) alleging that candidate for delegate, Gary Clark, and TDU violated the Rules.  The protest alleges that Mr. Clark obtained a copy of the local union's membership list from TDU, a third party which is prohibited from having possession of the list.  As a remedy, the protester seeks to have Mr. Clark and his slate disqualified from running or holding office, and to have contempt proceedings brought against Mr. Clark and TDU. 

The protests have been consolidated for decision.  Regional Coordinators Joyce Goldstein, J. Griffin Morgan and Bruce Boyens conducted the investigations.     

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Article VIII, Section 3(a) of the Rules allow accredited or nominated candidates for International officer to obtain a copy of the IBT membership list through the Election Officer.  Use and dissemination of the membership list is controlled as described below.

The evidence shows that Diana Kilmury, International vice president and current candidate for re‑election on the Ron Carey slate, requested and received from the Election Officer a copy of the IBT's membership list in the form of a computerized data base on tape.  In order to be eligible to receive the list, she signed an affidavit which stated:

I swear and aver, upon pain of contempt, that  I will not permit inspection or copying of  any membership lists I receive from the  Election Officer to any other third parties.  I agree and understand that the term “third  parties” includes each and every person other  than myself or members or employees of my campaign or campaign organization. 

Ms. Kilmury is a long‑time member of TDU and currently serves as co‑chair of the organization.  TDU has been previously recognized by the Election Officer as an independent caucus of IBT members, which is funded through volunteer contributions by IBT members, and which, among other activities, supports candidates for International office.  Halberg, P-019-LU174-PNW, et seq. (Decision on Remand) (December 14, 1995).

Ken Paff is the Organizer of TDU and works for the group full‑time.  Mr. Paff was one of the founders and early leaders of TDU and is one of the individuals most identified with the organization.  He is not currently a member of the IBT. 

In late Fall 1995, Ms. Kilmury asked Mr. Paff to assist her in using the IBT membership list by disseminating it to candidates for delegate to the IBT convention who would be supporters of the Carey slate.  According to Ms. Kilmury, she wanted Mr. Paff's political and technical expertise in making effective and legal use of the list.  She asserts that at all times she was designating Mr. Paff individually to act on her behalf, and was neither designating TDU to act on her behalf nor Paff to act on behalf of TDU.  However, Mr. Paff states that Ms. Kilmury provided the list to TDU, albeit for the lawful purpose of assisting pro‑Carey slates of delegates. 

Ms. Kilmury states that she asked Mr. Paff to assist her in identifying delegate candidates who supported the Carey campaign, arrange for a U.S. mail house capable of converting the computer tapes into lists and labels, collect money from the candidates to reimburse costs associated with making the list available, and oversee the actual transfer of the lists.  She further asserts that she instructed Mr. Paff on the procedures to follow which would conform to restrictions in the Rules--namely, that the lists be used only for campaigns for Carey delegates and alternates; that she give prior approval for access to any candidate; that Mr. Paff would be personally responsible for safeguarding the list; that TDU as an entity would have no access to the list or any copies of it; and that copies of the list would go only to candidates who could be trusted to comply with the Rules. 

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It is undisputed that Mr. Paff arranged for the computerized data base to be delivered to American Mailers of Detroit, for the purpose of converting it, at least for certain local unions, into mailing labels and/or lists with telephone numbers to be used for phone banking.[1]  For example, Pete George, a member of Local Union 391 and head of a pro‑Carey slate of candidates for delegate, received through Mr. Paff a set of mailing labels and a list of all Local Union 391 members with addresses and telephone numbers.  Mr. George and his slate sent out a campaign mailing with the labels and used the list for phone banking.  Mr. George made out a check to TDU in the amount of $336.68 for the labels and list, and apparently understood that he was obtaining the materials from TDU. 

Alex Adams is a member of a pro‑Carey slate in Local Union 407 called the “Green Team.”  He stated that he received a copy of the Local Union 407 list from Mr. Paff, who had gotten it from Ms. Kilmury.  The Green Team purchased the list for $192, with a check made out to Mr. Paff.  The Green Team then divided the list into segments and distributed it to 15‑18 volunteers in order to make telephone calls supporting the Green Team. 

It is undisputed that in disseminating the list to various candidates in different local unions, Mr. Paff has used TDU resources.  Some of the work was performed during work hours for which he was compensated by TDU, and Mr. Paff utilized TDU offices and equipment. In addition, Mr. Paff’s technical assistant at TDU, Alan Jacobson, has also worked on this project.  Finally, TDU funds were used in the provision of the list to various candidates, subject to reimbursement from the candidates and from Ms. Kilmury.[2]

Both Mr. George and Mr. Adams signed affidavits in which they agreed to use the lists only for the purposes of the 1996 International delegate and officer elections, and not to retain any copies, extractions or other duplications of the list.  They further agreed to return any lists, labels, tapes, disks, or other variations of the list not consumed in the mailing process to the campaign.  Ms. Kilmury states that all candidates who received a copy of the list signed similar affidavits. 

Article VIII, Section 3(a) of the Rules provides, in pertinent part: 

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No membership list may be used for any purpose other than advancing the accredited or nominated candidate’s campaign for  nomination and/or election.  Use of a membership list in support of the election of delegate and/or alternate delegate candidates shall not constitute misuse of the list, provided that the list is used solely to advance the accredited or nominated candidate’s campaign for nomination and/or election.  

The section further prohibits the distribution of the membership list to any candidate who fails to promise by affidavit that “he/she will not use or permit use of the membership list for any purpose other than advancing that candidate's campaign for nomination and/or election and that he/she will not provide the list to nor permit inspection or copying of the list by any third parties.”  The section further warns that “[A] violation of this paragraph is punishable by contempt, pursuant to the Opinion and Order of the United States District Court for the Southern District of New York (Hon. David N. Edelstein), dated August 22, 1995.”  

In order to truly understand the rule, one must trace its origins back to the 1991 election.  In 1990, the Election Officer filed an application with the District Court, seeking approval of the Rules for the IBT International Union Delegate and Officer Election (“1990‑91 Rules”). 

Article VIII, Section 2(a) of the 1990‑91 Rules provided for only a limited disclosure of the IBT membership list to candidates.  Tracking applicable regulations of the Department of Labor, the rule allowed candidates to inspect and compare the membership lists with their own records within 30 days of a particular election.  In his commentary, the Election Officer stated his belief that he was constrained by case law under the Labor‑Management Reporting and Disclosure Act (“LMRDA”), holding that more liberal access to a union's membership list required a judicial finding that the union had misused its membership list in the same election. 

While generally approving the Election Officer's rules as promulgated, the District Court in 1990 found Article VIII, Section 2 flawed as written.  United States v. IBT, 742 F. Supp. 94, 101 (S.D.N.Y. 1990), aff’d as modified, 931 F.2d 177 (2d Cir. 1991).  The District Court found that the traditional protection afforded a union membership list should be overridden in this case because extraordinary measures were necessary to effectuate the permanent injunction barring IBT association with organized crime.  Id.  742 F. Supp. at 102.  Further, the District Court found that the IBT had misused its membership list by its attacks against the court officers, the government, and the Court in seeking to prevent implementation of the Consent Decree.  Id. 

In response to IBT concerns about the membership list being used for improper purposes, the Court found that release of the membership list in the election “furthers the interests of the IBT rank and file for the purpose of ensuring full, fair and free elections.”  Id. at 104.  Further, the Court noted that such release would “only be to IBT members seeking office, minimizing any potential dangers.”  Id.  The Court concluded, “Misuse of the election lists by candidates would be punishable upon pain of contempt.”  Id.  

In its conclusion, the District Court ordered that Article VIII, Section 2(a) be amended to provide as follows:

(1) that the IBT prepare a current membership list before September 1, 1990, (2) transfer that list to the Election Officer,

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(3) the Election Officer is authorized to release a copy of the appropriate membership list to an accredited candidate 30 days before the date of an election, (4) in order to obtain a copy of the membership list, the accredited candidate must submit an affidavit averring that he would not permit inspection or copying of the list to any other third parties.  A violation of this order would be punishable by contempt. 

Although the Court of Appeals concluded that no findings by the District Court satisfied the LMRDA standard regarding discriminatory access, it nevertheless agreed that the consent decree clearly contemplated some use of the membership list beyond that permitted by LMRDA.  Id. 931 F.2d at 188‑189. 

In response to the District Court's decision, the Election Officer, on August 23, 1990, issued a campaign advisory entitled, “Advisory on Membership List Distribution to Accredited Candidates.”  Using the District Court's order as a basis, the campaign advisory set forth the conditions and limitations under which the IBT membership list or parts thereof would be provided to accredited and nominated candidates.  Attached to the campaign advisory was a form affidavit which each candidate would be required to sign as a condition of obtaining the list.    

The 1990 campaign advisory envisioned that the list could and would be used by accredited candidates to support candidates for delegate and alternate to the International convention who would, once elected, support that candidate.  In practice, the lists were not only used to support candidates for delegate and alternate, but were distributed to candidates for delegate and alternate for the purposes of campaigning.  

In In Re: Dalton, 91 ‑ Elec. App. ‑ 79 (SA) (February 27, 1991), the Independent Administrator held that the dissemination of the membership list to candidates for delegate pledged to Mr. Carey did not violate the 1990‑91 Rules.  The Independent Administrator further stated that release of the membership list to an uncommitted candidate did not violate the rule if the accredited candidate believed that such release would ultimately further his/her own campaign.  The decision clearly understood and envisioned that candidates for delegate would have access to the list, and made no mention of the requirement that only members of the campaign staff may have such access.  See Naslanic, Case No. P-195-LU243-MGN, Post-21-LU243-MGN (April 4, 1991); Aceves, Case No. P-629-LU542-CLA (March 8, 1991); Lichtman, Case No. P-410-LU769-SEC, Post-16-LU769-SEC (March 15, 1991); aff’d, 91 - Elec. App. - 109 (SA) (March 26, 1991).

In preparing the current version of the Rules, the Election Officer took the revised rule from 1990‑91 and added language from the 1990 campaign advisory.  In her commentary on the Rules, the Election Officer rejected the suggestion that local union membership lists should be made available to all delegate candidates:

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To provide the Local Union membership list to a potentially unlimited number of delegate “candidates,” who may or may not be serious candidates, would create a substantial risk of misuse of the list, the confidentiality of which is normally well‑guarded.  Misuse can be prohibited in theory but, given the large number of persons who could obtain access under the suggested rule, effective enforcement of that prohibition in practice would be dubious at best.  

On its face, the current rule would seem to contain two prohibitions:  one against dissemination of the list to anyone except a candidate's campaign organization, and one against misuse of the list.  The prohibition against dissemination is designed to achieve the real goal of the rule, that of preventing improper usage.  If there are not strict controls on who gets the list, it will be impossible to prevent misuse later on.  Still, as the rule is written, even if the membership list is scrupulously used only for the intended purpose, the rule would be violated if the list is given to any third party.   

As demonstrated by the short history above, there are also certain contradictory aspects of the current rule.  The language of the rule would seem to disallow dissemination of the list to anyone but the candidate for International office.  Clearly, however, a candidate for International office is not required to personally peel and affix address labels on campaign mailings.  In the Election Officer’s 1990 campaign advisory, an accredited candidate's campaign or campaign organization is not considered a third party.  However, the terms “campaign” and “campaign organization” in this context cannot mean every supporter of a candidate; that would, as a practical matter, mean that there is no control at all over the list.

The Election Officer concludes that dissemination of the list may only be made to agents of the candidates--that is, persons appointed by the candidate for this purpose, who have the specific authority to act for the candidate in connection with the list.  Agents for these purposes could be an outside mail house or computer firm responsible for converting the list into labels, or another business entity that acts on behalf of the candidate, provided appropriate controls and safeguards are taken and affidavits are obtained.  It could be individual persons who are not formally part of the campaign staff but are designated by the candidate as an agent for the purpose of handling the list on behalf of the candidate--for example, a professional campaign manager.  

Based on the above, the Election Officer concludes that an International candidate may, assuming the use of appropriate safeguards, allow the IBT membership list to be handled or used by the candidate's duly designated agents for the purpose of advancing the candidate's campaign.  The question in this case is, was Ms. Kilmury, by transmitting the computer tapes to Mr. Paff in the manner stated above, giving the list to a member of her campaign or campaign staff, or was she giving it to a “third party?”  Based on the evidence above, the Election Officer concludes that the transmittal of the list to Mr. Paff constituted an improper distribution of the list to a third party in violation of the rule.  

TDU is a caucus of union members that has filed as an “independent committee” under Article XII, Section 2(a)(3) of the Rules.  Definition No. 22 of the Rules define an “independent committee” as:

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[a]ny person or entity not controlled by a candidate or slate who/which has accepted any campaign contributions, as defined by the Rules, or who/which has made any expenditure, where the purpose, object or foreseeable effect of the contribution or expenditure is to influence the election of International officer candidate(s).  

It is undisputed that it was not just Mr. Paff personally who came into custody and control of the list, but TDU as well.  The list was kept under lock and key in the TDU office. 

Mr. Paff used TDU equipment and facilities in handling and processing the list on TDU‑paid time.  He also used the services of another full-time TDU employee to handle the list.  Mr. Paff is the principal officer of TDU.  At least one of the recipients of the list, the pro‑Carey slate from Local Union 391, understood that they were receiving the list from TDU.    

Ms. Kilmury and TDU argue that while Mr. Paff may be an agent of TDU for most purposes, he was acting solely and exclusively as an agent of Ms. Kilmury and her campaign for the purposes of handling the list.  The Election Officer has serious reservations that given

Mr. Paff's unique position with TDU, he could ever act as an agent for a candidate independent of his responsibilities toward TDU.  It may be true, as TDU argues, that union officers can frequently wear two hats and keep different roles they play separately and independently.  That does not mean that every individual can wear two hats, or multiples thereof, in every situation.  

However, the Election Officer does not have to decide on that issue here, since the facts demonstrate that it was TDU, not just Mr. Paff, who had possession and custody of the list.  

TDU further argues that Ms. Kilmury did not handle the list any differently than it was handled in the previous election in 1991.  However, while TDU members and officers were active in the 1991 election and had access to the membership list in their various roles as supporters of Mr. Carey, it does not appear that there were any protests decided in the last election which directly addressed the issue of possession of the list by TDU or another caucus.  

TDU attempts to argue that TDU itself could take possession of the list as an agent for Ms. Kilmury, provided the list was used solely for Ms. Kilmury’s campaign and not for any improper purpose.  In effect, TDU is arguing that it can be an independent committee within the meaning of Definition 22 of the Rules, but not a third party within the meaning of Article VIII, Section 3(a).  Such an argument cannot prevail.  By definition, an independent committee is one independent of the control of the candidates.  If TDU was subject to the orders from Mr. Carey or Ms. Kilmury, it would, by definition, not be independent.  However, if the committee is in fact independent of the candidate, it must be a third party with respect to the candidate’s campaign.  

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Ms. Kilmury acknowledges in her submission to the Election Officer that TDU is not synonymous with the Carey campaign, that TDU has other issues and concerns, and does not always agree with the decisions of Mr. Carey.  Were TDU to now state that it was simply part of the Kilmury or Carey campaigns, TDU would lose its status as an independent committee under the Rules, with all of the consequences that would follow.  The Election Officer does not interpret the violation here as an indication that TDU desires to forego its current status as an independent committee.  

Finally, both Ms. Kilmury and TDU argue that TDU’s possession of the list on behalf of Ms. Kilmury is not possession by a third party because the costs of TDU’s services in connection with the list are reimbursed.  They assert that it is the same as the campaign contribution issue, in which TDU is not tainted by the use of money from Teamsters Rank and File--which comes from prohibited foundation sources-‑because shared costs are carefully allocated and reimbursed on a regular basis.  This argument is simply irrelevant.  The rule in question here has nothing to do with allocations of costs or use of improper funds.  It is a simple prohibition of a physical object:  the list in any of its forms.  If TDU has possession of the list, the violation has occurred. 

Although TDU and Ms. Kilmury state that they are relying on the precedent of the previous election, neither mention the 1990 campaign advisory which was distributed to all accredited candidates, including Ms. Kilmury.  In that advisory, the Election Officer stated:

In accordance with the definitions contained in the Rules (Definition 17), an accredited candidate’s campaign or campaign organization will not be considered another third party.  However, a caucus or group of Union members is another third party to whom distribution, inspection, or copying of the membership list is prohibited.  Nothing prohibits a caucus participant who is an IBT member from also being a part of the campaign organization of an accredited candidate. 

Thus, any precedent in this matter clearly establishes that a caucus or group of union members like TDU is a third party, and dissemination of the list to it is prohibited.[3] 

The protestors in P‑420 and P‑468 specifically allege a violation of the Rules by

Mr. Carey and his slate of candidates.  However, there is no evidence that Mr. Carey or his campaign has disseminated the list to TDU, Ms. Kilmury, or anyone else.  Indeed, to the contrary, the evidence shows that the Carey campaign has not given their copy of the list, received from the Election Officer, to anyone else.  Candidates for delegate who support the Carey slate and want a mailing done on their behalf submit the literature to the Carey campaign, which in turn produces the labels without disseminating the list to the candidates in question.  Accordingly, there is no evidence of any violation by Mr. Carey or his campaign.  Similarly, there is no evidence that the IBT itself has disseminated the membership list to anybody for campaign purposes.  

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Although the discussion above is adequate to decide the merits of the present case, the contradictory aspects of the current rule and its history suggest the usefulness of providing additional guidelines for candidates on the use of the list during the remainder of the election process.

As recognized in Dalton and the other cases cited above, a candidate’s agent for possession of the list could also be the candidates for delegate and alternate.  The text of

Article VIII, Section 3(a) addresses only the question of the use of the list, not its dissemination.  However, to the extent the rule reflects the usage and understanding of the last election, it also permits dissemination--with appropriate safeguards-‑by candidates for International office to candidates for delegate and alternate whose election will advance the election of the International candidates.  Distribution to a discrete group of delegate/alternate candidates through the accredited International candidate is distinguishable from Election Officer Amy Gladstein’s rejection of a rule modification which would have made the list available through her office to all candidates for delegate and alternate.  Under the present rule, International candidates may make the list available only to those candidates for delegate who are being designated as their agents; although such candidates for delegate may not be formally declared for that International candidate.  Those International candidates will remain strictly liable for any misuse or improper dissemination of the list.

Phone banking is one of the uses made of the list by delegate candidates who obtain the list from accredited candidates, as in P-437 herein.  A question arises whether it is permissible for volunteer supporters who conduct phone banking on behalf of a slate of candidates for delegates and alternates to possess the list or parts thereof.  Such possession may attenuate the control of the original candidate possessor, but it is possibly the only way phone banking could be done without going to the prohibitive expense of creating a “boiler room” with commercially installed phone lines.  Thus, this limited possession by volunteers is permitted under the rule provided the accredited candidate and his/her intermediate agents (i.e., delegate/alternate candidates) remain responsible for instructing  all volunteers in the requirements imposed by the rule, and scrupulously recovering all portions of the list from the volunteers.  Given the severe penalties for misuse of the list and strict liability of the accredited candidate for anyone who obtains the list through such candidate, it is for the accredited International candidates to decide whether to expose themselves such liability and sanctions for misuse of the list by such volunteers.

These guidelines demonstrate that the protection to be afforded the IBT membership list must give way to some extent to the goal of encouraging member outreach and participation in the campaign.  However, this in no way sanctions misuse of the list of any kind, or improper dissemination of the list to anyone not appointed as an agent of the candidate or his/her campaign.  Candidates who obtain the list from the Election Officer will continue to remain strictly liable for any misuse or improper dissemination of the list. 

For the foregoing reasons, the protests in Case Nos. P‑420, P‑437, P‑468, and P‑512 are GRANTED as to Ms. Kilmury, Mr. Paff, and TDU; and DENIED as to the IBT, Mr. Carey and his campaign.

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              REMEDY  

When the Election Officer determines that Rules have been violated, she “may take whatever remedial action is appropriate.”  Article XIV, Section 4.  In fashioning the appropriate remedy, the Election Officer views the nature and seriousness of the violation, as well as its potential for interfering with the election process.

Violations of Article VIII, Section 3 are potentially serious.  It may be the only rule which specifically warns that a violation thereof is punishable by contempt.  That language, which also appeared in the 1990 campaign advisory, serves as a warning to all candidates and members that this rule will be strictly enforced.  

The Election Officer believes, however, that there are two important factors which mitigate both the seriousness of the violation and the severity of the penalty.  First, is the undisputed fact that, notwithstanding the strictness of the campaign advisory in 1990, broader dissemination of the list was tolerated by the Election Officer and the Independent Administrator during the last election.  That Ms. Kilmury reasonably relied upon the previous practice is demonstrated by the relative openness with which she acted in this regard, and with which both she and TDU have responded to the Election Officer's inquiries in this matter. 

Second, while the list was improperly disseminated, there is no evidence that the list has been misused in any way.  The use of affidavits by Ms. Kilmury and Mr. Paff provided further safeguards to the integrity of the list.  

Considering the above factors, the Election Officer finds the appropriate remedy to be as follows:  

First, Ms. Kilmury, her campaign, her campaign staff and her agents are hereby ordered to immediately cease and desist from any further dissemination of the IBT membership list received from the Election Officer, in whatever form or manner, to TDU, Mr. Paff, or to anyone else who acts as an agent on behalf of TDU.

Second, TDU is ordered to cease and desist from any further dissemination of the IBT membership list and information received from Ms. Kilmury, her campaign, campaign staff, or agents, in whatever form or manner, and to cease and desist from any use of any kind of said list and information.  

          Third, Mr. Paff, Mr. Jacobson, and TDU must, within two (2) working days, return to the Election Officer each and every list, data base, list derivative, mail labels, and any other information or material obtained through the original computer data bases which is in their possession, custody or control.  This includes the responsibility to find and reacquire any labels, lists, or portions thereof, which may be in the hands of any mail houses, computer firms, or other outside entity which were distributed to them by Mr. Paff, Mr. Jacobson, TDU, or any other agent of TDU.

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Fourth, Mr. Paff, Mr. Jacobson and TDU as an organization must certify to the Election Officer that they have made an exhaustive investigation to ensure that all lists, labels, computer tapes, and any portion thereof have been returned to the Election Officer, and that none of the information in any form whatsoever remains in the possession, custody, or control of themselves, of anyone to whom they made the list available, or of anyone else.  These certifications shall be made in the course of sworn interviews with designated agents of the Election Officer.   

Fifth, Ms. Kilmury, Mr. Paff, and TDU shall also provide to the Election Officer within two (2) working days a complete list of names, addresses and telephone numbers of each and every person to whom the list or any portion thereof has been distributed to date.

Sixth, in order to ensure that no misuse or unauthorized dissemination of the list takes place, the Election Officer shall send a notice to each person of whom it has knowledge has received a copy of the list or a portion thereof, warning them of the serious consequences of attempting to use the list in the future for any purpose other than supporting Ms. Kilmury and the Carey slate, and directing them to promptly return the list to Ms. Kilmury as soon as the delegate election for that local has ended.

The Election Officer considered whether to require the candidates for delegate to immediately return all pages of the list to the Election Officer.  This remedy was rejected since those candidates have not violated the Rules by accepting the list and have apparently not misused the list.  The only entity whose possession of the list violates the Rules is TDU, and that has been remedied.  The Election Officer does not believe that the purpose behind the rule requires candidates to forgo a campaign aid to which they can obtain lawful access because it is in some way “fruit of the poisonous tree.”

This decision and the remedy it orders is effective immediately.  The parties are directed to comply with this decision and order regardless of any appeal which may be taken, and no stay of this remedy will be granted.

The protester in P‑468 has requested that the Election Officer disqualify Mr. Carey from office and institute appropriate contempt proceedings before Judge Edelstein.  Since there is no evidence of any wrongdoing by Mr. Carey, no remedy against him is appropriate.  The Election Officer considered whether Ms. Kilmury should be disqualified from running for International office, and whether contempt proceedings are warranted against Ms. Kilmury, Mr. Paff, and/or TDU.  For the reasons stated above, the Election Officer has concluded that such extreme measures are not warranted on the facts of this case.      

Any interested party not satisfied with this determination may request a hearing before the Election Appeals Master within one day of receipt of this letter.  The parties are reminded that, absent extraordinary circumstances, no party may rely upon evidence that was not presented to the Office of the Election Officer in any such appeal.  Requests for a hearing shall be made in writing and shall be served on:

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Kenneth Conboy, Esq.

Latham & Watkins

885 Third Avenue, Suite 1000

New York, NY 10022

Fax (212) 751-4864

Copies of the request for hearing must be served on the parties listed above as well as upon the Election Officer, 400 North Capitol Street, Suite 855, Washington, D.C. 20001, Facsimile (202) 624-3525.  A copy of the protest must accompany the request for a hearing.

Sincerely,

Barbara Zack Quindel

Election Officer

cc:               Kenneth Conboy, Election Appeals Master

Regional Coordinators