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SUPERIOR COURT OF THE DISTRICT OF COLUMBIA CIVIL DIVISION District of Columbia Board of Elections and Ethics, Petitioner, v. Civil Action No. 0007439-05 PETITIONER DISTRICT OF COLUMBIA BOARD OF ELECTIONS AND ETHICS' DESIGNATION OF RECORD ON REVIEW The Petitioner, District of Columbia Board of Elections and Ethics (hereinafter "the Board"), hereby certifies to the Court, pursuant to D.C. Official Code § 11103.05(4), the official record of the proceedings before the Board in the above-captioned case. STATEMENT OF PROCEEDINGS BEFORE THE BOARDAfter nine days of hearings conducted in July 2004 (BOEE Exhibit #1), the Board rejected the petitions collected for Initiative Measure No. 68, "The Video Lottery Terminal Initiative of 2004" for its failure to meet the citywide signature requirements in its August 13, 2004 Memorandum Opinion and Order (BOEE Exhibit #2). Upon appeal to the District of Columbia Court of Appeals by the Committee for the D.C. Video Lottery Terminal Initiative ("the Committee"), the Court remanded the matter back to the Board for a clarification of the Board's Opinion in its Order dated September 13,. 2004. in its Clarification Memorandum Opinion on September 20, 2004 (BOEE Exhibit #3), the Board relied on the "pervasiveness of the irregularities associated with the false signings and the accompanying pollution of the process that those irregularities fostered" as the basis upon which to invalidate the petition sheets. On September 28, 2004, the D.C.. Court of Appeals issued an opinion affirming the Board's decision, to reject the petition submitted in support of Initiative Measure No. 68. Citizens Committee for the D.C. Video Lottery Terminal Initiative v. District of Columbia Board of Elections and Ethics, et al., 860 A.2d 813 (D.C. 2004). (BOEE Exhibit #4). Administrative hearings commenced in the penalty phase of the July 2004 proceedings to determine whether civil penalties should be assessed for the election violations found to exist by the Board and if so, to whom. The hearings were conducted March 10-18, 2005. (BOEE Exhibit #5a-5g). On December 30, 2004, copies of the Withdrawal and Acceptance of position. of.. Treasurer were submitted for the Citizens Committee on behalf of the outgoing treasurer Vickey Wilcher and the incoming treasurer Johnny Clinton Hyatt. (BOEE Exhibit #6). A number of resignations were submitted December 27, 2004 to December 30, 2004 from the following persons: Margaret Gentry from the position of Custodian of Books and Records for the Citizens Committee; Vickey M. Wilcher from the position of Treasurer; Pedro Alfonso from the position of Chairman of the Citizens Committee; and John Ray as counsel for the Citizens Committee. (BOEE Exhibit #7). On February 14, 2005, a Statement of Mitigation of the Citizens Committee and Johnny Clinton Hyatt was generated. The Statement provided reasoning why neither the Citizens Committee nor Hyatt should be assessed civil penalties. (BOEE Exhibit #8). On February 16, 2005, a Statement in Mitigation of Pedro Alfonso, Vickey M. Wilcher, and Margaret Gentry was drafted which detailed a number of mitigating factors as to why the individuals who comprised the Citizens Committee should not be assessed fines. Mainly, the Statement details the difficulties of the Citizens Committee in collecting signatures and implementing an adequate review process within a limited amount of time. (BOEE Exhibit #9). On February 25, 2005, Challenger Ronald Drake formally requested the issuance of subpoenas for certain witnesses and documents. (BOEE Exhibit #10). On February 28, 2005, Ronald Drake drafted a response to the Proponents' Statements in Mitigation in which he rejected each of the statements in mitigation and recommended that the Citizens Committee, Manatt Phelps, LLP, Robert Newell, Shawn Scott, and other off-shore associates be held jointly and severally liable and fined over 8 million dollars. (BOEE Exhibit #11). On February 28, 2005, Donna Brizill, Executive Director of D.C. Watch, drafted a Response to Statements in Mitigation and Statement of Factors in Exacerbation. (BOEE Exhibit #12). On March 2, 2005, the Citizens Committee responded to Ronald Drake's request for subpoenas by objecting on several grounds. (BOEE #13). On March 3, 2005, the Board drafted a request to Ronald Drake to articulate the relevance of each requested witness so as to determine whether they could be subjected to its subpoena power. (BOEE Exhibit # 14). Mr. Drake responded the same day (BOEE Exhibit 14a) On March 7, 2005, the Citizens Committee and Johnny Clinton Hyatt, submitted a .Reply Statement in Mitigation whereby they denied liability and requested that the-Board. not assess any civil penalties against the Citizens Committee, its officers, or the.. proponents of Initiative Measure No. 68. (BOEE Exhibit #15). On March 7, 2005, Pedro Alfonso, Vickey Wilcher, and Margaret Gentry filed a reply to the responses of Challengers D.C. Watch and Ronald Drake to their Statements' in Mitigation., (BOEE Exhibit #16). On March 8 and 10, 2005, the Board issued subpoenas to Vickey Wilcher, Johnny Clinton Hyatt, and Pedro Alfonso. (BOEE Exhibit #17). On March 8, 2005; the Citizens Committee responded to the subpoena issued to it by asserting that it was unable to locate any additional documents beyond those already submitted to the Board in prior phases of the proceeding. (BOEE Exhibit #18). During the proceedings, the Challengers introduced the July 1, 2004 BOEE Special Board Meeting transcript, (BOEE Exhibit# 19); the memorandum from the Registrar of Voters to the Board's General Counsel, (BOEE Exhibit #20); the-Consulting Agreement between North Atlantic Investment, LLC and Pedro Alfonso on behalf of the Citizens Committee, (BOEE Exhibit #21); an email from Pedro Alfonso to Margaret. Gentry and Vickey Wilcher regarding the reinitiating of the collection of petitions, (BOEE Exhibit #22); and, an email dated January 3, 2005 written by Pedro Alfonso to Robert Newell of North Atlantic Investments, LLC informing him of his resignation., The email illustrates Mr. Alfonso's perceived or actual status with the Citizens . Committee. (BOEE Exhibit #23) The Board rendered its decision assessing a penalty in the amount of Six Hundred Twenty-Two Thousand Eight Hundred and Eighty Dollars ($622,880.00) against the Citizens Committee for the D.C. Video Lottery Terminal Initiative of 2004 and Pedro Alfonso, former Chairman of the Citizens Committee, Vickey Wilcher, former Treasurer of the Citizens Committee, and. Margaret Gentry, former Custodian of Records of the Citizens Committee in their official capacities (collectively "Respondents"). (BOEE Exhibit #24). On August 3, 2005 the Respondents requested a 30-day extension for action presribed in the July 29, 2005 Memorandum Opinion and Order (BOEE Exhibit # 25), which was, denied by the board on August 8, 2005. (BOEE Exhibit #26) Respectfully submitted, September 13, 2005 |
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