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Closing Statement in Board of Elections and Ethics Penalty Hearing
March 21, 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, Video Lottery Terminal of 2004

Administrative Hearing No. 04-020

Closing Statement by DCWatch

In the District of Columbia, average citizens are given the privilege of legislating directly, of proposing laws and presenting them to the people of the District for their vote. These laws can involve the form of our government; they can involve political and social issues that the proposers believe will benefit the people of the District; or, as in this case, and unlike laws passed by the city council, they can even be purely self-interested laws written to enrich their proposers and funders. But in exchange for this ability to legislative directly, the election laws of the District of Columbia impose certain duties on the proposers of initiatives and on initiative committees.

In this case, the proponents and the initiative committee failed to live up to their duties and responsibilities. They allowed and turned a blind eye to the systematic breaking of the District’s election laws and regulations. Even today, they do not accept responsibility for the wholesale violations that occurred. Instead, they plead that they were willfully ignorant of the violations of law that occurred, and ask that the Board of Elections and Ethics absolve them for their failure to supervise and oversee the petition circulation process that they initiated. The respondents in this case, the proponents of Initiative 68 and the Citizens Committee for Video Lottery Terminals of 2004, allowed the violations to occur, and even today do not accept or even seem to understand their responsibility for them. The Board must impose a severe penalty in this case, not only to warn and to educate future initiative proponents and committees about their duty to follow the law, but also to reprimand and educate the respondents in this case, who still, to this day, do not seem to understand that they bear the responsibility for the violations that they allowed.

Under DC Code 1-1001.16 and Chapter 10 of Volume 3 of the DC Municipal Regulations, the DC Board of Elections and Ethics allows initiative proponents to file the text of an initiative with the Board and to go through the Board’s public hearing process and review of that text. The Board issues petition sheets to the proponents with instructions regarding the required number of signatures and the requirements of DC election law with respect to the circulation of petitions. The Code and Regulations make the proponents responsible for the filing of petitions with the BOEE, and they require the proponents to establish a campaign committee and file with the Office of Campaign Finance for the purpose of raising and expanding funds.

Under these provisions of the law and regulations, the initiative proponents and campaign committee are responsible for adherence to election law. In this case, the proponents/committee members retained their responsibility for compliance with DC election law, despite the committee’s unsigned contract with a company for its work in circulating the petition. That responsibility cannot be assigned or contracted away. If the committee actually interpreted its contract as abrogating or negating its responsibility under the law, as it has at times argued in its briefs and at this hearing, then it should never have entered into that contract. But there has been ample testimony and evidence here that, at the time of circulation, the committee did not believe and did not act as though it were unable under the terms of its unsigned contract to exercise its powers.

All the committee members, Mr. Alfonso, Ms. Wilcher, and Ms. Gentry, had extensive political backgrounds and experience with political campaigns and petition circulation drives in the District. All the committee members acknowledged their personal understanding of DC election laws with regard to the circulation of petitions, based on their experience. And during the course of this hearing, all committee members testified that they understood that an initiative committee was responsible for adherence to DC election laws. The committee members were familiar with the case decided by this Board in the previous general election, In the Matter of Hon. Mayor Anthony Williams, Candidate, in which a $277,000 penalty was assessed in this board’s Administrative Hearing No. 02-019. Two of the committee members also testified that they attended the July 1, 2004, special Board of Elections meeting held to issue the petitions for Initiative 68, and that they heard and understood, and did not have any questions or reservations about, the instructions given by the Board’s Chair and General Counsel at that meeting. This hearing has established conclusively that the proponents, the committee members, were responsible to circulate the petitions for their initiative in compliance with DC election law; that they were aware of that responsibility, and that that they were given notice of that responsibility and of the potential penalties for failure to comply.

The committee contends that it entered in an unsigned contract with Progressive Campaigns, Inc., PCI, to circulate the petitions. Even if the Board accepts that contract as an executed contract, no provisions of that contract can abrogate the committee’s legal responsibility to supervise the circulation of the initiative petition. Indeed, there was ample evidence during the hearing that the committee members and its legal counsel did not act as though they were powerless under the contract to exercise control over the circulation of petitions -- up to and including Ms. Wilcher’s testimony that she wasn’t even aware during the circulation period that there was a contract, or that that contract restricted the committee’s powers in any way.

The respondents in this case undermined their own argument by simultaneously arguing a contradictory case, that they did assume the power to supervise petition circulation and that they exercised adequate control over that process. The respondents presented extensive testimony in the matters of the T-shirts, the Hyatt memorandum, and the July 2nd meeting. The committee testified about its "spotters" in the field, who seem to have been limited to watching petition circulators associated with the Manatt Phelps law firm, and about its concern about petitions that were submitted by Augusteen Cowan and Jumhariyah Latanrang, which it directed PCI to withdraw and not to submit, even though they were submitted to the Board and defended by the committee during last summers’ hearing.

Although the statements in mitigation stressed that the committee’s powers were so limited by its contract with PCI that it was unable to supervise petition circulation and address problems that occurred, it is clear from the testimony that the committee never felt or acted as though its power or authority was limited during the circulation process. But it was also clear from the testimony of the committee members that the actions that they took were so circumscribed and their knowledge of the petition circulation process undertaken by PCI was so minimal that they were completely ineffective in addressing the actual problems that occurred.

The committee had the benefit of legal counsel, Mr. Ray of the law firm of Manatt Phelps, throughout the entire process, from the drafting of the text of the initiative, through the Board hearings on that text, the Superior Court hearing on the challenge to the initiative’s text, and throughout the petition circulation process. That counsel and his law firm also played an administrative and policy advisory role in the initiative process far beyond the role of legal counsel, up to and including recruiting and negotiating employment contracts with the proponents and committee members. That counsel had a duty and obligation to advise his clients on DC election law and on any penalty or liability they faced should the committee violate the law. Moreover, since he had firsthand knowledge of the operations of the committee, and participated in the day-to-day management of its operations, and since his law firm functioned as the administrative headquarters of the committee and of its portion of the petition circulation process, he was also in a position to provide immediate instructions and direction to the committee and its contractors as problems or issues arose during the circulation of petitions.

Professional petition circulation firms, although they will never admit it publicly, and even though Mr. Paparella of PCI denied it in this forum, deliberately bury Boards of Elections and potential petition challengers with a mountain of petition submissions, including good and bad petition signatures alike. In this case, some 56,000 signatures were submitted. The strategy is to make the task of checking and validating petition signatures so daunting, so overwhelming, that it is beyond the capability of impecunious challengers and even beyond the capability of understaffed and time-limited Boards of Elections. (Of course professional circulation firms such as PCI also have a financial incentive to submit signatures that they know to be bad; they are paid on a per-signature basis, and the more signatures they turn in, good or bad, the more they are paid.) In this instance, the committee and PCI, under the direction of the initiative‘s funder, Mr. Newell, decided to submit more than 56,000 signatures to the Board of Elections and Ethics on July 6. It did so even though PCI knew that it could not verify that more than 30,00 of those names were on the roll of registered voters, and it did so with the flimsy excuse that some infinitesimal portion of those people may have registered to vote in the brief period after the version of the voters’ roll that they had had been generated. Among those sheets were petition sheets submitted by petitioners whose validity rates, as determined by PCI, were below 20 percent. Among those sheets were 79 petition sheets signed by Mr. Cowan and 12 petition sheets signed by Ms. Latanrang, petition sheets that committee members testified they had directed PCI not to submit, although they never took any affirmative steps to ensure that those petition sheets were among those that were submitted.

In the statement of mitigation filed on behalf of the initiative proponents and committee members as individuals, great attention was paid to the fact that the petition circulation was done within a 5½ day period, and to the difficulties that that short period presented to the committee. But the committee members were all aware, and testified that they were aware, that DC election law gave them a full 180 days from the date that the petition was issued to circulate petition sheets. Before the committee members were recruited, the decision had been made in April 2004 to place the initiative on the November 2004 ballot, and therefore to submit the petitions by the July 6, 2004, deadline. Regardless of who made that decision, or how it was made, only the proponents could submit petitions on behalf of the initiative. It was the committee’s ultimate decision not to defy the instructions from those who controlled and directed them, but to collect and submit petitions within that constricted 5½ day period. That choice was theirs, and any difficulties that it imposed on them were of their own making. It is no excuse for the violations that occurred, or for the committee’s failure to supervise the process.

In the matter of assessing penalties for these violations, the Board has clear guidance from the precedent setting August 15, 2002, Memorandum Opinion and Order in the Matter of Hon. Mayor Anthony Williams, in Administrative Hearing No. 02-019. Many of the issues raised by the respondents in this case were considered and settled by the Board of Elections and Ethics in that case. The Board considered that two factors weighed in mitigation in that case: the first mitigating factor was that the Williams campaign withdrew, after they were challenged and at the beginning of the challenge hearing, a large number of petition sheets that contained obvious forgeries. The factor of careful cooperation with the Board of Elections and Ethics in its investigation operates, with regard to Initiative 68, to exacerbate the severity of the offense. Not only did the committee withdraw only a small portion of the challenged petition sheets that were in violation; at the challenge hearing it actively defended the challenged petition sheets signed by Mr. Cowan, petition sheets that it disclosed at this hearing it believed to contain numerous violations.

Secondly, the Board found as a mitigating factor in the Williams case that no evidence had been presented to prove that the candidate "personally encouraged or directed any circulators or other persons . . . to fail to comply with the requirements set out by our laws and regulations." That mitigating factor does bear a superficial resemblance to the facts in this case. However, we would argue that it does not apply here in the same way. There was no candidate whose campaign committee was operating at some distance. This was only an initiative committee. In the Williams case, the forgeries and violations of law became apparent to the public only after the circulation process was completed and the petitions were turned in, and the members of the campaign committee could advance a plausible argument that they were unaware of them prior to that time. In this case, the members of the initiative committee were put on notice during the course of the circulation period by the challengers themselves, by The Washington Post and The Washington Times, by several television and radio articles, that extensive violations of the election law were taking place. They cannot plausibly argue that they failed to act because they were unaware or ignorant. During the course of the circulation period, the challengers were able to uncover the violations through their own investigations, as well as through the press accounts -- and the challengers did not have access to any privileged information that was available to the members of the committee. If the committee was ignorant of the violations, it was deliberate, willful ignorance, in itself an exacerbating rather than a mitigating factor. As the Williams opinion notes in a footnote on page 9, ". . . Had there been evidence that the Mayor was aware of said forgeries but failed to take action to prevent their submission on behalf of the campaign, the Board would have been compelled to assess a greater fine." In this hearing, with respect to Initiative 68, the respondents offered evidence that exactly that situation did occur, at least in the case of petitions signed by Mr. Cowan.

Finally, the Williams opinion sets forth the major grounds for finding the committee members and proponents in this case liable for penalties for violations of the law: ". . . there was an obvious lack of institutional control and supervision by senior Williams campaign officials. . . . The administrative record is completely devoid of any consistent affirmative steps taken by the campaign to ensure the authenticity of the signatures appearing on the nominating petition. . . . There was no evidence that the Mayor acted in an illegal manner, but as the candidate, he remains ultimately responsible for the veracity of the nominating petition submitted to support his candidacy, and for the work of others."

With regard to Initiative 68, other exacerbating factors include the continuing failure by the committee members or their counsels, on their behalf, to apologize to DC voters or the Board for the violations that they caused to occur and the continuing failure to admit any responsibility for those violations. The committee submitted to the Board more than 30,000 signatures that it had no reason to believe were valid -- except for the hope that some small portion of them may have been signed by voters who registered in the brief period after their version of the voters roll had been generated. It was informed of, amply informed of, serious violations in how signatures were collected, and it took no action to stop those violations. It knew of specific individual petition sheets that it itself believed contained violations, and it took no effective steps to prevent those sheets from being submitted to the Board.

DCWatch believes that the heaviest fine -- the maximum fine of $200 per violation -- should be levied against each signature on those petitions signed by Mr. Cowan and Ms. Latanrang, petitions that the committee admitted it knew not to be good but yet submitted. Additionally a fine should be levied against all petitions gathered by the Stars and Stripes operation that the Board rejected, another 6,590 signatures. As we have explained above, we believe that the extent of the committee’s responsibility for these violations is much greater than that proven against the Committee to Reelect Tony Williams in the Williams case, and therefore the amount of the fine per violation should be much greater. In addition, we believe that it is within the Board’s authority and power to issue a fine for all of the approximately 30,000 rejected signatures, whether gathered by the Stars and Stripes operation or not. The committee’s submission of this massive number of signatures that they knew were almost certainly invalid was a deliberate attempt by the committee and its agents to prevent a complete and thorough examination and validation by the Board or by potential challengers.

All citizens have a duty to obey the law. Citizens who aspire to become lawmakers, as proponents of an initiative or members of an initiative committee, have an ever higher duty to the law. These citizens, if they fail in their duty to ensure that the integrity of the elections laws is upheld, cannot claim ignorance of the law, or that they never knew there would be a penalty, or that they signed away their duty to a company that they hired. They must accept their duties and their responsibilities, and bear the penalty if they fail to uphold them.

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