GOVERNMENT OF THE DISTRICT OF COLUMBIA
BOARD OF ELECTIONS AND ETHICS
In re: Challenges Filed to Initiative No. 68,
"The Video Lottery Terminal Initiative of 2004"
Administrative Hearing No. 04-020
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
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
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
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 ATTEMPT TO QUALIFY INITIATIVE NO. 68.
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
COMPLAINACE CONTROL EFFORTS.
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
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
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
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
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.
WHETHER PENALTIES SHOULD BE IMPOSED.
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.
Francis D. Carter, Esq.
D.C. Bar No. 164376
Counsel for Pedro Alfonso, Vickey M. Wilcher and Margaret Gentry
Zuckermarn Spaeder LLP
Connecticut Avenue, N.W.
Washington, D.C. 20036-2638
(202) 822-8106 (Facsimile)
CERTIFICATE OF SERVICE
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:
KENNETH J. McGHIE, ESQ.
District of Columbia Board of
Elections and Ethics
441 Fourth Street, N.W. Suite 280 NORTH
GEORGE W. JONES, JR., ESQ,
Counsel for the Citizens Committee
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:
REV. DEAN SNYDER
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:
RONALD DRAKE, ESQ.
5 P Street, S.W.
Washington, D.C. 20024
1327 Girard Street, N.W.
Washington, D.C. 20009