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Response to proponents’ statements in mitigation
February 28, 2005




Dorothy Brizill
Bonnie Cain
Jim Dougherty
Gary Imhoff
Phil Mendelson
Mark David Richards
Sandra Seegars


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Before the
District of Columbia Board of Elections and Ethics

In re: Initiative No. 68, Administrative Hearing No. 04-020
Video Lottery Terminal Initiative of 2004

Response to Statements in Mitigation and Statement of Factors in Exacerbation by DCWatch

Reply to Statements in Mitigation

The statements in mitigation submitted by the parties on February 14 and February 16 attempt to reopen and retry the case heard by the Board of Elections with regard to the Video Lottery Terminal Initiative of 2004, Initiative No. 68, and to refute the conclusions that the Board reached during that hearing -- conclusions that were affirmed by the DC Court of Appeals. They restate the major arguments made by the proponents during the hearing -- both that they should not be held responsible for the actions of their contractors and subcontractors, and that there were numerous petition circulators who circulated petitions properly and who did not break the law. These arguments, however, have been settled by the Board and the Court, and do not need to be reargued at this time.

The proponents of an initiative and the initiative committee are and must be considered to be the responsible parties; that is the purpose of having an initiative committee, and of requiring it to register with the Board as the party proposing the initiative. And the fact that some or many petition circulators behaved properly does not have any bearing on the wrongdoing that was committed by many others. This response, therefore, will not reargue issues that have already been settled by the Board and the Court.

The statement filed on behalf of the Citizens Committee for the D.C. Lottery Terminal Initiative and Johnny Clinton Hyatt, hereafter referred to as the Jones statement, argues that, "Absent evidence that the Proponents or the Committee directed or approved improper conduct or that the Proponents or the Committee were guilty of other blameworthy conduct, assessing civil penalties would impermissibly burden constitutionally protected conduct and unreasonably discourage District of Columbia voters from participating in the initiative process as proponents or officers of a political committee." (Jones, p. 15) The proponents argue that punishing illegal activity discourages legal activity. On the contrary, assessing a fine for the outrageous conduct that has been proven in this case would discourage initiative committees from submitting fraudulent, forged, and improperly gathered petitions. It would not discourage anyone from conducting a legitimate and proper initiative drive.

Furthermore, the proponents argue that, "The proponents of an initiative or officers of a political committee cannot reasonably be held to be insurers against improper conduct by independent contractors who participate in the signature gathering or other aspects of the efforts." (Jones, p. 15) In other words, the proponents of the initiative argue that they have escaped any responsibility for the conduct of their initiative effort simply by hiring a contractor to carry out the work. The truth is exactly the opposite. In law, a company is responsible for the product that it builds and sells, even though many of its component parts may have been built by subcontractors. The same principle applies here.

The initiative committee is responsible for the actions of its contractors, who are acting on its behalf and at its behest. It is especially responsible for ensuring that the gathering of voters’ signatures is done properly. If the members of the committee do not perform the work themselves, they are responsible for supervising and overseeing the work, whether it is done by volunteers, by workers paid directly by the committee, or by companies that are contracted to perform the work. The initiative committee cannot insulate itself from responsibility by contracting out the work or even, as in this case, by having multiple layers of subcontractors.

Proponents state that, "The evidence shows that the Proponents and the Committee took reasonable steps to assure compliance with District law and to remedy any improper conduct of which they became aware during the course of the campaign." (Jones, p. 16) That is not what the evidence showed. The evidence showed that the initiative committee did almost nothing to supervise Stars and Stripes and the other contractors and subcontractors who worked on the petition gathering drive. The evidence showed that the committee members were aware of and followed press accounts on the radio and television stations and in both major newspapers. They knew that there were reports of major, systemic irregularities during the time of the petition circulation drive, and they nevertheless still took almost no steps to observe the activities of these contractors personally and directly. The evidence on the record shows that during the six-day period in which signatures were collected, the committee’s treasurer, Vickey Wilcher, spent one hour on the streets observing petition circulation activities. Beyond that, it shows that the committee did nothing to exercise its responsibility and to supervise the work of the companies the initiative’s funder had contracted to circulate the petitions.

The proponents assert that, "None of the Proponents was in the business of gathering signatures for initiatives." (Jones, p. 17) On the contrary, an initiative committee is in the business of gathering signatures. The members of the committee were all paid employees of the initiative‘s financial backer. Their job was to get the initiative on the ballot by getting it approved by the Board of Elections and Ethics and by gathering the required signatures.

The proponents attempt to shift all responsibility for complying with the law to the individual circulators who were DC residents: "In light of the clearly stated requirements of law, the Proponents reasonably presumed that each District resident would attempt to comply in good faith with the requirements as he committed to do when he was hired, no matter what he or she might have been told by any nonresident and whatever the position of the nonresident, if for no other reason than to avoid the prospect of criminal prosecution." (Jones, p. 20) This completely misstates the legal position of the committee, its contractors and subcontractors, and the District residents who were hired to front for the nonresident circulators of the petition. A company’s upper management does not escape responsibility for the illegal actions of its employees by claiming that it assumes that its lowest level employees will act legally, even if its middle management orders them to commit illegal acts. In this instance, the committee is claiming that it should be allowed to assume that District residents who sign as petition circulators will act legally, even if the committee’s contractors and subcontractors suggest that they act illegally, order them to act illegally, and pay them to act illegally.

The statement in mitigation submitted on behalf of Pedro Alfonso, Vickey M. Wilcher, and Margaret Gentry, hereinafter referred to as the Carter statement, argues that the short time period during which the signatures were collected as the primary mitigating factor explaining the violations of election law. (Carter, pp. 2-4) As admitted by the committee, the funder of the initiative contracted with professional petition circulation companies with which he had worked in the past on similar violations of election laws in other states. These companies have reputations for having frequently engaged in similar conduct in other states, and because of the long association between these companies and the initiative‘s funder, it is very unlikely that their reputations were unknown to the funder. Aside from the pro forma actions taken by the contracting companies, actions that were transparently designed to shield the committee and its contractors from blame and to displace all responsibility for misconduct onto those individual petition circulators who resided in the District of Columbia, the proponents can point to no real activities taken by the committee to prevent or to correct misconduct. The committee members did not train resident DC circulators or supervise the "training sessions," that were really recruitment sessions, that circulators were given. They did not go to the Red Roof Inn at any time. They kept that operation at a distance so that they could claim ignorance of the activities there.

The initiative committee claims that the problems in circulation can be blamed on the short time that it had in which to circulate the petitions. It still refuses to admit the point stressed by the Board in its findings and by the Court of Appeals in its hearing, that the short time period was not imposed by the laws of the District of Columbia or the Board of Elections and Ethics or by the challengers of the initiative. The committee had a full 180 days in which to circulate its petition, like any other initiative committee. The "deadline" that the committee faced was self-imposed and of its own choosing, and the difficulties that it posed for the committee were unnecessary and of its own making.

Factors in Exacerbation

DCWatch accepts the findings of the Board in its memorandum and opinion on August 13, 2004, and its supplemental filing with the Court of Appeals on September 10, 2004, as the baseline statement of the violations of election law committed by the initiative committee. The following factors exacerbate the gravity, seriousness, and extent of those violations.

1) All initiative committees have the duty and responsibility to attempt to submit "clean" petition sheets that are not flagrantly fraudulent. It is understood that all petitions will contain some errors and mistaken signatures, many of them due to voters’ confusion over their registration status. But all committees bear the same responsibility to attempt to check their petition sheets for flagrant and systematic errors. In this case, testimony established that the committee had unusual resources available to it, resources that are not commonly available to initiative committees that are usually staffed by volunteers and reliant upon volunteer petition circulators. The professional company contracted to gather the signatures, Progressive Campaigns, Inc., was able to check the petitions that were gathered each day for invalid, mistaken, and fraudulent signatures. The proponents refer to this as a "quality assurance" process. (Jones, p. 9) Testimony established that the company found an unusually high number and proportion of bad signatures. It identified these signatures and, for purposes of its own relating to payments to circulators, it identified circulators whom it believed had submitted petitions with an extraordinarily high proportion of bad signatures. But it continued to employ circulators whom it knew to be submitting bad petitions. It did not fire them and it did not give them additional training or supervision to improve their performance -- instead, it just did not pay them as high a rate as it paid some other circulators. And, even though it individually identified tens of thousands of bad signatures, even though it went through what it referred to as a "quality assurance" process, it kept the results of that that process internal. It did not purge the signatures that it knew to be invalid from the petitions that it submitted to the Board, and it did not alert the Board of Elections and Ethics to its findings. Instead, it submitted those signatures to the Board of Elections and Ethics, and it kept its finding secret until it was disclosed in examination during the hearing.

The petitions submitted to the Board by the committee contained over 56,000 signatures, and PCI’s own purging process showed that just over 21,000 of those signatures were those of registered DC voters. Instead of submitting just those potentially good signatures, it deliberately buried the good signatures that it had collected in a mass of invalid, mistaken, and fraudulent signatures that it could have eliminated. It deliberately created additional verification work for the Board, prolonging its work and making it unnecessarily difficult and expensive. Because of its continuing discussions with the contractors, the initiative committee was aware of and approved of the contractor’s policy not to strike signatures from the petitions that it submitted and not to identify for the Board the tens of thousands of signatures that it knew to be invalid.

2) This entire process imposed an unusually high burden on the Board of Elections and Ethics and its staff, who at the time were also preparing for both the September 2004 primary election and the November 2004 general election. The hearing on the challenges to the petition lasted more than eighty hours over nine days. A conservative estimate of the cost to the Board of the signature verification process and the hearing process would be $52,480.02 for overtime costs (for the signature verification process alone), court reporter costs, rental of audio equipment, random sampling costs, and copying costs. This figure does not include the staff hours of professional and support staff during normal working days that were devoted to these processes, and the overtime hours spent on the hearing. It also does not include any of the staff costs for the court appeal.

3) The same process also placed an extraordinarily high burden on citizen challengers. Under DC law, the Board of Elections and Ethics cannot itself challenge an initiative petition; a challenge can be brought only by a citizen and registered voter in the District of Columbia. The citizen challengers, all unpaid volunteers, had to review the petition sheets themselves, had to do their own investigations, and had to represent themselves during the hearing.

4) The structure of the petition gathering effort for Initiative 68 presents itself as a deliberate attempt to create deniability and avoid responsibility. The initiative committee claims that it is not responsible for the actions of PCI, because PCI was a contractor. PCI itself did not collect any signatures, but subcontracted to three other companies, including Stars and Stripes, to do the actual collection, and it denies responsibility for the actions of these "independent" contractors. Stars and Stripes, as the subcontractor, itself claims that it did not employ individuals to collect signatures, but instead merely contracted with independent managers. Those sub-subcontracting managers did not hire employees to collect signatures, but engaged in contracts with independent sub-sub-subcontractors to collect signatures; and those sub-sub-subcontractors then contracted with DC citizens -- now five levels removed from the initiative committee -- to sign petition sheets as circulators and to do some of the circulation of petitions themselves.

The elaborateness of this structure does not serve, as the proponents argue, to distance the committee from its responsibility to manage and oversee petition circulation activities. It emphasizes the lengths to which the committee and its associated companies went to evade that responsibility, and it raises the likelihood and creates the presumption that this elaborate distancing structure was created in anticipation that laws and regulations would be broken and in order to ensure that there would be plausible deniability at every step in the process.

5) The major factor that exacerbates the violations of election law now is that the proponents and initiative committee still do not admit them and do not admit their responsibility for them. The proponents are far from showing an understanding of and remorse for the violations that occurred and the problems that they created for the Board of Elections and Ethics, for its staff, for the challengers, and most of all for the citizens of the District of Columbia.

Instead, the proponents merely argue that they have already been sufficiently punished by the failure of their efforts to submit invalid petitions: "Further, supporters of initiative 68 already have incurred substantive and completely unnecessary additional expense because of the false certification of signatures. Because of that conduct, the prospect for successful consideration of a video lottery terminal initiative in the District of Columbia has been seriously damaged, perhaps irretrievably. At a minimum, the effort has been made much more difficult and much more expensive because of the false certification of signatures." (Jones, p. 17)

The proponents and the initiative committee still do not exhibit any concern for the integrity of the election laws and the election process in the District of Columbia, or express any regret for their violations of the integrity of those laws and that process. Because the proponents and the committee still do not understand and acknowledge the nature and seriousness of their violations, it is incumbent on the Board to impose the largest possible fine on them, to attempt to finally bring them to such an understanding and acknowledgment.

Respectfully submitted,

Dorothy A. Brizill, Executive Director, DCWatch
Gary Imhoff, Vice President, DCWatch
1327 Girard Street, NW
Washington, DC 20009
202-234-6982, phone and fax


Regina James
1363 Adams Street, NE
Washington, DC 20018

Certificate of Service

This is to certify that a copy of the foregoing Response to Statements in Mitigation and Statement of Factors in Exacerbation was hereby delivered on this 28th day of February 2005 to the following:

Kenneth J. McGhie, Esq.
General Counsel
District of Columbia Board of Elections and Ethics
441 4th Street, NW, Suite 280N
Washington, DC 20001-2745
By FAX to 202-628-5952

George W. Jones, Jr., Esq.
Council for the Citizens Committee
Sidley Austin Brown & Wood, LLP
1501 K Street, NW, Suite 500
Washington, DC 2005-1401
By E-mail to gjones@sidley.com

Francis D. Carter, Esq.
Counsel for Pedro Alfonso, Vickey M. Wilcher, and Margaret Gentry
Zuckerman Spaeder, LLP
1201 Connecticut Avenue, NW
Washington, DC 20036-2638
By E-mail to fcarter@zuckerman.com

Ronald Drake, Esq.
5 P Street, SW
Washington, DC 20024
By E-mail to rondrakeatty@msn.com

Rev. Dean Snyder
333 A Street, NW
Washington, DC 20002
By E-mail to dsnyder@foundryumc.org

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