January 16, 1998
VIA UPS OVERNIGHT
James P. Hoffa Slate
January 16, 1998
Page 1
James P. Hoffa Slate
c/o Patrick J. Szymanski, Esq.
Baptiste & Wilder
1150 Connecticut Avenue, NW
Suite 500
Washington, DC 20036
Ron Carey Slate
c/o Susan Davis, Esq.
Cohen, Weiss and Simon
330 West 42nd Street
New York, NY 10036
Gail Sullivan
405 E Street, NE
Washington, DC 20002
Ken Paff
Teamsters for a Democratic
Union
7435 Michigan Avenue
Detroit, MI 48210
Paul Alan Levy, Esq.
Public Citizen Litigation
Group
1600 20th Street, NW
Washington, DC 20009
James P. Hoffa
2593 Hounds Chase
Troy, MI 48098
Bradley T. Raymond, Esq.
Finkel, Whitefield, Selik,
Raymond, Ferrara & Feldman
32300 Northwestern Highway
Suite 200
Farmington Hills, MI 48334
Craig Merrilees
35 E Street, NW, No. 101
Washington, DC 20001
James P. Hoffa Slate
January 16, 1998
Page 1
Re: Election Office Case No. PR-047-IBT-EOH [CORRECTED]
Dear Mr. Hoffa:
The Hoffa Slate filed a pre-election protest pursuant to Article XIV, Section 2(b) of the Rules for the 1995-1996 IBT International Union Delegate and Officer Election (“Rules”). The protester alleges multiple violations of the Rules, Rerun Plan and Advisory on Campaign Contributions and Disclosure (“Advisory”) on the first Campaign and Expenditure Report (“CCER”) filed by the Ron Carey Slate for the period ending November 19, 1997. The alleged violations will be addressed separately below.
1. The protest was investigated by Election Office Representative Kathryn Naylor.
James P. Hoffa Slate
January 16, 1998
Page 1
Allegations of Non-Member Contributions
The protester alleges that Gail Sullivan, a contributor reported on the CCER, is not a member of Local Union 174 or any other local union and therefore cannot contribute to the Carey campaign.
Under the Rerun Plan and Advisory, only active members can make campaign contributions to candidates or slates. The Carey slate’s CCER reports Ms. Sullivan as a member of Local Union 174 who made a contribution of $250 to the slate on October 22, 1997. The investigation confirmed that Ms. Sullivan was an active member of Local Union 174 when she made the contribution to the Carey slate. Therefore, her contribution is permissible under the Rerun Plan and Advisory.
Accordingly, this aspect of the protest is DENIED.
The protester alleges that the Carey slate’s CCER fails to indicate any contribution by or expenditure to Craig Merrilees for his campaign activities on behalf of the Carey slate.
The investigation revealed the following. Mr. Merrilees, a non-IBT member, is a Communications Coordinator employed by the IBT. In this position, he works on IBT publications, deals with the media and advises IBT officials and members on how to handle the media. During the period October 16, 1997 through November 23, 1997, Mr. Merrilees worked full-time for the Carey campaign in charge of media and communications.[1] Mr. Merrilees was on unpaid leave from the IBT while he worked for the campaign. Mr. Merrilees had an oral agreement with Ron Carey that he would be paid $3,500 per month for his services. In light of the disqualification of Ron Carey as a candidate in the rerun election, Mr. Merrilees decided not to bill the Carey campaign for his services. In this regard, the campaign considered Mr. Merrilees’ donation as volunteer services, and concluded that the campaign was not obligated to report it.
The Advisory provides that:
James P. Hoffa Slate
January 16, 1998
Page 1
If a non-member donates goods or services that are within the non-member’s regular business, work or income-producing activity, the non-member must bill for the fair market value or the normal commercial rate for those goods or services. If not, the contribution is prohibited under the Rerun Plan. If a non-member donates services that are outside the non-member’s regular business, work or income producing activity, the donation may be considered as volunteer services and generally will not constitute a contribution.
Advisory, page 3.
Since Mr. Merrilees is a non-member and the services he provided to the campaign are within his regular business or area of work, the campaign must compensate him for these services. The Carey campaign has agreed to pay Mr. Merrilees $4,000 for his services based on the his prior agreement with Mr. Carey. Before working for the IBT, Mr. Merrilees served as a consultant to several public interest organizations in a similar capacity handling media and communications and billed these organizations at a comparable rate. On this basis, the Election Officer finds that $4,000 is an acceptable fair market value or commercial rate for Mr. Merrilees’ services. The Carey campaign has amended its CCER to indicate that $4,000 was owed to Mr. Merrilees at the end of the reporting period. This amendment has been submitted to the opposing slate representatives.
Accordingly, this aspect of the protest is RESOLVED.
2. Reporting Contributions or Expenditures by TDU
The protester alleges that the Carey Slate’s CCER fails to indicate any contribution by or expenditure to Teamsters for a Democratic Union (“TDU”) for its campaign activities on behalf of the Carey slate. The protester did not identify any campaign contribution to the Carey Slate.
James P. Hoffa Slate
January 16, 1998
Page 1
The protester has not provided any evidence to substantiate the allegation. Nevertheless, in 1991 and during the initial phase of the 1996 election, former Election Officer Michael Holland and Election Officer Barbara Zack Quindel, found that TDU is a caucus or group of union members, participating in the election process in support of candidates on the Carey slate, but not controlled or governed by any candidate or slate. TDU accepts campaign contributions, as defined by the Rules, and/or makes expenditures, where the purpose, object or foreseeable effect of the contribution or expenditure is to influence the election of International Officer candidates. In Re: Gully, 91 - Elec.App. - 158 (SA) (June 12, 1991), aff’g, Sargent, Case No. P-249-LU283-MGN (May 21, 1991); Halberg, P-019-LU174-PNW (December 14, 1995) (decision on remand). However, the fact that the Carey Slate or any of its slate members may benefit from certain activities undertaken by TDU does not mean that the Carey Slate or its members are responsible for reporting on their CCERs: 1) expenditures made by TDU to operate or perform certain activities, or 2) the contributions received by TDU that support its activities[2]. In accordance with the Advisory, TDU files CCERs with the Election Office that report contributions received and expenditures made by TDU.
Accordingly, this aspect of the protest is DENIED.
3. Incomplete CCER
The protester claims that the Carey slate’s CCER is not accompanied by the records required by the Rerun Plan and the Instructions. Specifically, a Vendor Disclosure form for Cohen, Weiss and Simon was not attached to the CCER.
The Advisory states that:
A candidate or slate that pays or contracts for goods and services for the rerun election in an aggregate amount of $5,000 or more from a vendor that has performed work for the IBT or any of its subordinate bodies within the past 12 months, shall file a “Statement of Vendor Disclosure” form provided by the Election Officer. The candidate or slate must state the terms of the agreement regarding work related to the rerun election and identify the IBT bodies for which the vendor has worked. Candidates or slates shall file this disclosure form with the Election Officer and shall send it to all opposing slate representatives and independent candidates . . .
James P. Hoffa Slate
January 16, 1998
Page 1
By letter dated December 16, 1997, which was sent to all candidates, the Election Officer determined that although vendor disclosure forms would still be required of attorneys and/or law firms that met the $5,000 threshold as described above, only the Election Officer would receive and review the information regarding the identity of IBT bodies which the attorney/firm had worked with in the last 12 months, without such information being provided to other candidates and the public. In accordance with this determination, Cohen, Weiss and Simon has submitted a vendor disclosure form to the Election Office and slate representatives for the Hoffa and Stand-up slates. The Carey campaign has stated that other than Cohen, Weiss and Simon, neither the slate nor any candidate on the slate has paid or contracted for goods or services for the rerun election in an aggregate amount of $5,000 or more from a vendor that has performed work for the IBT or any subordinate body within the past 12 months.
Accordingly, this aspect of the protest is RESOLVED.
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:
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, NW, Suite 445, Washington, DC 20001, Facsimile
(202) 624-3525. A copy of the protest must accompany the request for a hearing.
Sincerely,
Michael G. Cherkasky
Election Officer
MGC:chh
cc: Kenneth Conboy, Election Appeals Master
[1]Although Mr. Merrilees was hired to handle primarily media and communications, he also did a myriad of administrative tasks (e.g., filing, answering phones, preparing mailings, helping volunteers, etc.) that were necessary to maintain the operation of the Carey campaign office.
[2] If TDU makes a monetary or in-kind contribution directly to a candidate or slate, the candidate or slate is responsible for reporting such contributions on their CCER. The investigation revealed that TDU has not made any monetary or in-kind contributions directly to the Carey slate during the reporting period.