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Back to Video Lottery Terminal Initiative of 2004

Frank Carter, Reply of Pedro Alfonso, Vickey Wilcher, and Margaret Gentry to the
responses of challengers to the statements in mitigation
March 7, 2005




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In re: Challenges Filed to Initiative No. 68, "The Video Lottery Terminal Initiative of 2004"

Administrative Hearing No. 04-020


The Challengers charge the Citizens Committee for the D.C. Video Lottery Terminal Initiative ("Citizens Committee"), and perhaps Mr. Alfonso, Ms, Wilcher and Ms. Gentry, with all sorts of sordid actions. One Response does so in rather shrill tones. But the Challengers, nowhere in their Responses, cite specific and articulable facts to demonstrate that Mr. Alfonso, Ms. Wilcher and Ms. Gentry, individually and collectively, committed, condoned, authorized or had any advance knowledge of any acts which could be construed as violations of the District of Columbia Election Laws_ Neither the Challengers nor the Board of Elections and Ethics ("BOEE") has identified any specific D.C. election law violation for which they hold Mr. Alfonso, Ms. Wilcher and Ms. Gentry responsible.

Mr. Alfonso, Ms. Wilcher and Ms. Gentry are all long time residents of this city who have worked with numerous people of various persuasions of political perspective to better the conditions in the city and the lives of those who reside here. There is not the slightest hint that any of the then members of the Citizens Committee sought to harm the city or its political process_ One would hope that in a democratic republic differing views on issues could be aired and either accepted or rejected through the voting process, rather than litigation. But that is not the case here. It was never the intent of the then members of the Citizens Committee to cause this confusion and subsequent dispute over the processing of Initiative No. 68. While each individually, and all collectively, believe that they did nothing wrong, they deeply regret the lengthy and complex review, hearings and examination this Board has undertaken. Initiative No, 68 did not start, was not conducted by them, and did not end with any intent to cause confusion, consternation or animosity.

The BOEE in its written Memorandum Opinion and order of August 13, 2004 ("BOEE Aug 13 Order") concluded:

"Notwithstanding allegations of a scheme or plot to violate the District's election laws, the Board found no evidence in the context of these procedures that the proponents set out to intentionally flout the District's election laws, or that they encouraged Stars and Stripes to do so."

BOEE Aug 13 Order, p. 3.

Thus, the BOEE must answer with regard to Respondents Alfonso, Wilcher and Gentry in the penalty proceedings is this: What specific violations of law did they commit? The answer is: None, as evidenced by the testimony and documentation in the record. The then members of the Citizens Committee have well established records of integrity in their professional and political activities. There is nothing in the record of these proceedings that suggests in any way that Respondents Alfonso, Wilcher and Gentry uncut or circumvented the requirements of the D.C. election laws. To the contrary, the record shows they did everything within their power, under difficult circumstances and in a fast-paced situation, to make sure the petition process was carried out in accordance with the District's laws and regulations.

Mr. Alfonso, Ms. Wilcher and Ms. Gentry readily acknowledge that, despite their best and most vigilant efforts, the Initiative No. 68 petition circulation process was tarnished by wrongdoing carried out by certain individuals under contract with, and supervised by, the Stars and Stripes business entity. Mr. Alfonso, Ms. Wilcher and Ms. Gentry had no supervisory authority over the Stars and Stripes, and no knowledge of the illegal and corrupt activities engaged in by Stars and Stripes personnel until the facts were disclosed in testimony by individuals under grants of immunity offered by the BOEE and the Attorney General for the District of Columbia.

Mr. Alfonso, Ms. Wilcher and Ms. Gentry were just as appalled as the Board was that these illegal and corrupt activities had taken place. Moreover, they were and are deeply and personally regretful and apologetic to the WEE and the citizens of this city that such activities occurred, and deeply and personally embarrassed that such activities occurred in an endeavor they vouched for and led, in good faith, and with rigorous commitment to compliance with the letter and the spirit of the governing laws and regulations. When the extent of these illegal and corrupt activities began to emerge during the BOEE hearings, Mr. Alfonso, speaking as Chairman of the Committee at that time, publicly stated that those who personally committed forgeries and other fraudulent and illegal petition activities should be criminally prosecuted and punished to the full extent of the law.

The BOEE condemns the fraudulent activities that occurred. So do the Respondents. So does the Committee. So do the Challengers. So do all right-thinking District of Columbia citizens who count on the D.C. election laws and regulations, and the BOEE, to protect the integrity of the initiative and petition process for their use and benefit.

Based on the BOEE Aug 13 Order and the evidence in the record, we submit that Respondents Alfonso, Wilcher and Gentry did not commit, condone, or authorize any violations of law or regulations, took all reasonable and prudent precautions to prevent any such violations, and acted as quickly and effectively as possible to put an immediate end to any questionable activities as soon as they learned about them.

The BOEE Aug 13 Order clearly and explicitly identified the Stars and Stripes business entity, and its operations at the Red Roof Inn, as the source of the violations that occurred. The BOEE's conclusion is supported by extensive testimony and evidence in the record, in large part from petition circulators who were retained and paid by Stars and Stripes and who testified under grants of immunity extended by the BOEE and the Attorney General of the District of Columbia. As immunized witnesses, these individuals were completely free to tell the truth and implicate anyone and everyone who was even remotely involved in suggesting that they commit illegal acts. Under immunity, they implicated Stars and Stripes personnel as promoting and/or condoning illegal acts. But none spoke of having any contact whatsoever with Mr. Alfonso, Ms. Wilcher and Ms. Gentry.


The Board, in the BOEE Aug 13 Order and in the recorded comments of Board Members during these proceedings, has been critical of the Committee and Respondents Alfonso, Wilcher and Gentry for their decision to attempt to qualify Initiative No. 68 for the November 2004 ballot with only a five-day window (from late afternoon July I until late afternoon of July 6) to circulate petitions and collect the necessary number of valid petition signatures. The BOEE, as well as the Challengers, think this was an unwise decision.

But, the BOEE cannot impose penalties against Mr. Alfonso, Ms, Wilcher and Ms. Gentry - or indeed anyone - for choosing to accomplish the petition-collection efforts within five days.

The issue is not whether five days, or any fixed number of days, is sufficient. The issue is whether there were violations of the law. The vast majority of Initiative No. 68 circulators demonstrated full compliance with the law, despite the short time period. Individuals willing to break the law may well do so no matter how much time is allowed. 


Challengers DC Watch correctly states that the BOEE has heard ample evidence regarding the efforts made by Mr. Alfonso, Ms. Wilcher and Ms. Gentry to monitor and control the petition-collection process to assure compliance with D.C. laws and regulations. Some facts, however, bear repeating and elaboration for the BOEE's ready reference. We do not agree with DC Watch's assertion that Mr. Alfonso, Ms. Wilcher and Ms. Gentry are liable and punishable pursuant to law from wrongful acts committed by persons under contract to Stars and Stripes over whom they had no direct supervisory authority and control.

Soon after the then Committee members filed the necessary documents as Proponents of the Initiative and officers of the Committee on April 22, 2004, they recognized the petitioncollection effort would have to be carried out at a fast pace, with the assistance of an experienced firm with high-tech rapid-turnaround capabilities. They considered local firms, but found none with the capability to take on the assignment.

After researching national firms specializing in petition drives, they selected Progressive Campaign Incorporated ("PCI"). In an 1998 article appearing in the Washington Post, political columnist David Broder wrote, "Angelo Paprella, owner of Progressive Campaigns in Santa Monica, is a onetime Nader's Raider who made his mark in a celebrated 1988 struggle in which the Naderities were outspent by insurance companies and trial lawyers but won passage of their auto insurance initiative. Paparella says his work force and agenda reflect his liberal origins."

Mr. Paparella was a member of the Board of Directors of the Initiative & Referendum Research Institute of the University of Southern California, a position also demonstrating his expertise and the respect he is accorded within his profession. Moreover, PCI had recent experience in the District of Columbia, having managed the 2002 petition drive for Initiative No. 62, which dealt with treatment rather than jail for drug offenders.

PCI was known to have the experience, expertise, and computer technology to manage petition drives in accordance with the law. On its website, PCI advertises its strengths.1 Based upon research and due diligence, the Citizens Committee reasonable believed that PCI had the requisite expertise to conduct its work in an ethical mariner, and was well-versed in the District of Columbia elections laws and regulations. PCI has successfully completed petition drives in several states and the District of Columbia.

To supplement the work of PCI and provide an extra measure of effort for the five-day period, Mr. Alfonso, Ms. Wilcher and Ms. Gentry organized a group of D.C. political activists working out of the offices at 1501 M Street, N.W. ("1501 Group"), to also collect signatures and work directly with the Citizens Committee.

Petition sheets turned in daily by the 1501 Group were reviewed by Robert Grocholski, a PCI employee experienced in this process, sitting along side the staff of the Citizens Committee. The Citizens Committee was assured that PCI had put the same review procedure in place where all signature collectors turned in petitions. This turned out not to be the case.

PCI staff sent copies of all petitions collected daily by overnight delivery to its headquarters in Santa Monica, California. There the voters signatures were cross-checked by computer with the District's voter rolls.

The petitions were submitted on July 6, 2004. Copies of the petitions were provided by the BOEE staff on Saturday, July 10". On Sunday, July 11 h, using a team of 18 petition review assistants, Ms. Wilcher oversaw the scrutiny of every petition sheet in a process that consumed more than 700 man-hours in barely more than two weeks. Through this process, the staff of the Citizens Committee were able to identify a large number of petition sheets with various irregularities, ranging from a missing date to a mistaken address. The Citizens Committee, through counsel, conceded the withdrawal of 89 petition sheets at the beginning of the July 21 BOEE Hearing. An additional 378 petition sheets were so removed on July 29th. The Citizens Committee's in-house petition review process was an integral factor in determining which petition sheets we withdrew without further consideration.

The Citizens Committee also had staff it termed "petition watchers" who sat with the BOEE staff as they examined the petition sheets. Through this process another group of petition sheets were withdrawn.

Finally, the Citizens Committee did not receive the computerized check from FCZ until well after the petitions were submitted. This document was used for yet another review procedure. Under this process, the Citizens Committee withdrew additional petition sheets which had no valid signatures.

No system can totally prevent people bent on mischief. Thus, despite the checks and balances put in place by the Citizens Committee in addition to hiring a very experienced company to shoulder the major portion of this task, wrongdoing occurred. No one, however, asserts that Mr. Alfonso, Ms. Wilcher or Ms_ Gentry were personally involved with actions which sought to subvert the initiative process. Their collective efforts were aimed at bringing about a successful conclusion for Initiative No. 68.


In determing who should be fined for the wrongdoing that occurred during the Initiative No. 68 petition drive, the BOEE should look to the individuals who engaged in the wrongful conduct and the business entity which employed and supervised them. The BOEE, in its Aug 13 Order, concluded that Stars and Stripes was the employer and supervisor of those who committed wrongful acts.

To the best of our knowledge, everyone implicated by the immunized witnesses was affiliated with Stars and Stripes. Not one of the immunized witnesses presented any evidence or even a suggestion that Mr. Alfonso, Ms. Wilcher or Ms. Gentry and the Citizens Committee were involved in any way or had knowledge about the wrongful acts that occurred. None of the immunized witnesses was a part of the 1501 Group. Moreover, the BOEE found no wrongdoing involving the 1501 Group.

The Citizens Committee, through Mr. Alfonso, Ms_ Wilcher and Ms. Gentry, entered into a contract with PCI, which provided, among other things, that "PCI shall comply with all applicable federal, local and state laws and regulations, including employment and election laws." The contract further provided, "In selecting employees and/or contractors to undertake the services under this Agreement, PCI will select only those persons with the necessary qualifications to provide the services and fulfill PCI's obligations under this Agreement."

Mr. Alfonso, Ms. Wilcher and Ms. Gentry did not individually, and did not collectively, commit any acts which could be construed a violations of the District of Columbia elections laws or regulations.

Respectfully submitted,

Francis D. Carter, Esq. 
D.C. Bar No. 164376 
Counsel for Pedro Alfonso, Vickey M. Wilcher and Margaret Gentry 
Zuckermarn Spaeder LLP 
1201 Connecticut Avenue, N.W. 
Washington, D.C. 20036-2638 
(202) 778-1856
(202) 822-8106 (Facsimile) 


This is to certify that a copy of the foregoing Reply of Pedro Alfonso, Vickey M. Wilcher and Margaret Gentry to the Responses of Challengers DC Watch and Ronald L. Drake to our Statements in Mitigation was hand delivered this 7`h day of March, 2005 to the offices of:

General Counsel 
District of Columbia Board of Elections and Ethics 
441 Fourth Street, N.W. Suite 280 NORTH 
Washington, D.C. 20001-2745

Counsel for the Citizens Committee 
Sidley Austin Brown & Wood, LLP 
1501 K Street, N.W_ Suite 500
Washington, D.C. 20005-1401

Copies were also mailed, first class postage prepaid, to:

333 A Street, N_E. 
Washington, D.C_ 20002

1363 Adams Street, N.E. 
Washington, D.C. 20018

Finally, copies were sent by facsimile to:

5 P Street, S.W. 
Washington, D.C. 20024

1327 Girard Street, N.W. 
Washington, D.C. 20009

1. See, www.progcamp.corr/services.htm.

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