IN RE: HOFFA-HALL 2011, Protestor.
Protest Decision 2011 ESD 194
Issued: March 30, 2011
OES Case Nos. P-165-022211-NA & P-225-031511-NA
In Hoffa-Hall 2011, 2011 ESD 166 (March 18, 2011), we stated that four candidates for International office on the Hoffa-Hall 2011 slate - Jim Kabell, George Miranda, Gordon Sweeton and George Tedeschi - did not timely file one or both of the required Campaign Contribution and Expenditure Reports ("CCER") by the February 15, 2011 deadline for reporting period #3. Because these facts were found in the course of investigating a protest filed concerning the timeliness of other candidates' CCER filings, the protest decision was the first notice to these four that their late filing presented an issue under the Rules. We invited the four candidates "to submit facts or argument to OES concerning their late filing, and the appropriateness of any remedy for that conduct." We issue this decision on remedy, based on the facts concerning each candidate's filing and the consideration of counsel's submission on their behalf.
Findings of Fact and Analysis
A. Jim Kabell
Kabell initiated his candidacy during reporting period #3, and this marks his first ever CCER filing. He timely filed the CCER but erred in not also filing Supplemental Form #1. We have recognized that candidates new to the CCER system "need time to familiarize themselves with its operation, and gain experience using it." Hoffa-Hall 2011, 2011 ESD 166 at n.4 (March 18, 2011). Kabell showed an effort to meet the deadline by timely filing the CCER. Consistent with the approach we have taken in the past (and particularly because he is a first time filer), Kabell will not be assessed a penalty for the late filing of the Supplemental Form #1.
B. George Miranda
Miranda had filed CCERs in previous reporting periods. For reporting period #3, Miranda timely filed his CCER, but filed his Supplemental Form #1 on February 22, 2011. Counsel represents that there were no technical issues or other obstacles to Miranda's filing both forms and that Miranda believed both forms had been timely filed. The February 22 filing occurred promptly after the omission was called to Miranda's attention.
Similar to Brad Slawson, Sr.'s case, the CCERs program shows that Miranda's account was active, with several logins on February 15, 2011. In Slawson's case, we recognized that activity as evidence of intent to timely file and did not impose any late filing penalty, even though Slawson did not actually complete his filing until after the deadline date. Hoffa-Hall 2011, 2011 ESD 175 (March 23, 2011). Unlike Slawson, Miranda actually accomplished one of the two filings by the deadline date. Consistent with the determination in Slawson's case, and considering the evidence that Miranda actually filed the CCER by the deadline, Miranda will not be assessed a penalty for the late filing of the Supplemental Form #1.
C. Gordon Sweeton
Sweeton filed his CCER and Supplemental Form #1 two days after the deadline, not having requested any extension of time. He had made CCER filings before. The CCERs program shows activity in his accounts up to February 11, 2011 and the next login as February 17, 2011. The explanation offered is simply that the candidate forgot to file, due to personal circumstances, and that the error was unintentional.
The filing deadlines are set out in the Rules, and Sweeton had made filings before. Given the importance of timely filing, see Hoffa 2006, EAM 55 (July 11, 2006), we cannot overlook an unexcused late submission. We accept that Sweeton had no intent to hide information, but our decisions require that candidates under the filing obligation engage with OES to discuss any problems or obstacles to timely filing, or take other concrete steps that show actual effort at timely filing. Applying the rule as set out in Hoffa-Hall 2011, 2011 ESD 166 at 4 (March 18, 2011), Sweeton is directed to pay a $250 late filing penalty to OES.
D. George Tedeschi
Tedeschi's circumstances are similar to Sweeton's in that he had made filings for earlier reporting periods but, for reporting period #3, he let the filing deadline pass before contacting OES. Tedeschi contacted OES on or about February 18, asking how to handle a contribution that could not be verified because the individual had already contributed the maximum amount allowed under the Rules. Thus, Tedeschi's issue reflected CCERs working properly, and did not involve a system error. In the course of that contact, Tedeschi was informed that he had missed the deadline for timely filing his campaign finance reports for the third period.
Although Tedeschi only completed his filings on March 13, he was actively engaged with OES to complete his filings from the date he called to address his contribution verification issue, and we will deem him to have an extension to file as of that date. His filings will be treated as made as of the extension date, or, less than one week past the deadline. Accordingly, applying the rule as set out in Hoffa-Hall 2011, 2011 ESD 166 at 4 (March 18, 2011), Tedeschi is directed to pay a $250 late filing penalty to OES.
During this investigation, OES was asked whether CCERs could provide some evidence or confirmation to filers that a report is received. We reiterate here that the program does provide that information:
Upon the successful filing of a CCER or Supplemental Form #1, the screen displays the message "This report has been submitted." That can be doubly confirmed by the filer. When a candidate selects the "Create CCER" or "Create Supplemental Form 1" under the reports tab, and then selects a reporting period, the screen will display the message "This report has not been submitted" if the CCER database has no record of submission. If a report has been submitted, the screen will display the message "Print Original Report" (and "Print Amended Report" if there is an amended filing) on an active button that allows viewing of the report as submitted with the date of submission on it.
Hoffa-Hall 2011, 2011 ESD 175 at 2 (March 23, 2011). After the filing deadline, OES posts a list of reports received and outstanding on the CCERs "welcome" screen. These four features - which include information displayed to the user directly at the time of filing - provide a candidate with evidence of filing. We believe these notices are sufficient to alert filers to their actual filing status.
In this investigation, there was no evidence that a candidate had actually received notice of a filing when it had not in fact occurred. If any candidate has such a problem, that should be brought to the attention of OES. If a candidate believes that a filing has been made but the candidate does not see it confirmed by any of the four indicators referenced, the candidate should contact OES immediately and resolve any issues.
Remedy
Sweeton and Tedeschi are each required to pay $250 to OES. The payment shall be sent to OES within two working days of receipt of this decision.
Any interested party not satisfied with this determination may request a hearing before the Election Appeals Master within two (2) working days of receipt of this decision. The parties are reminded that, absent extraordinary circumstances, no party may rely upon evidence that was not presented to the Office of the Election Supervisor in any such appeal. Requests for a hearing shall be made in writing, shall specify the basis for the appeal, and shall be served upon:
Kenneth Conboy
Election Appeals Master
Latham & Watkins
885 Third Avenue, Suite 1000
New York, New York 10022
Fax: (212) 751-4864
Copies of the request for hearing must be served upon the parties, as well as upon the Election Supervisor for the International Brotherhood of Teamsters, 1801 K Street, N.W., Suite 421 L, Washington, D.C. 20006, all within the time prescribed above. A copy of the protest must accompany the request for hearing.
Richard W. Mark
Election Supervisor
cc: Kenneth Conboy
2011 ESD 194
DISTRIBUTION LIST (BY EMAIL UNLESS OTHERWISE SPECIFIED):
Bradley T. Raymond, General Counsel
International Brotherhood of Teamsters
25 Louisiana Avenue, N.W.
Washington, D.C. 20001
braymond@teamster.org
David J. Hoffa
Hoffa Hall 2011
1100 Connecticut Avenue, N.W., Ste. 730
Washington, D.C. 20036
hoffadav@hotmail.com
Ken Paff
Teamsters for a Democratic Union
P.O. Box 10128
Detroit, MI 48210-0128
ken@tdu.org
Barbara Harvey
1394 E. Jefferson Avenue
Detroit, MI 48207
blmharvey@sbcglobal.net
Fred Gegare
P.O. Box 9663
Green Bay, WI 54308-9663
kirchmanb@yahoo.com
Scott D. Soldon
3541 N. Summit Avenue
Shorewood, WI 53211
scottsoldon@gmail.com
Fred Zuckerman, President
Teamsters Local Union 89
3813 Taylor Blvd.
Louisville, KY 40215
fredzuckerman@aol.com
Robert M. Colone, Esq.
P.O. Box 272
Sellersburg, IN 47172-0272
rmcolone@hotmail.com
Carl Biers
Box 424, 315 Flatbush Avenue
Brooklyn, NY 11217
info@SandyPope2011.org
Julian Gonzalez
Lewis, Clifton & Nikolaidis, P.C.
350 Seventh Avenue, Suite 1800
New York, NY 10001-5013
jgonzalez@lcnlaw.com
Terry Jones
11479 Alspach Road
Canal Winchester, OH 43110
gonefishing413@gmail.com
Brad Slawson, Sr.
4502 176th Avenue, N.E.
Ham Lake, MN 55304
harleyrider0777@hotmail.com
Robert M. Ryder
2080 Clinton Road
Huntingdon Valley, PA 19006
bobmryder@gmail.com
Teresa Finke
11542 Southerland Drive
Walton, KY 41094
tresaa@hotmail.com
Lawrence Brennan
5252 Norton Road
Howell, MI 48843-9628
laurie337@sbcglobal.net
Jerry Conner
3113 Southland Road
Decatur, IL 62521
Gegareconner2011@gmail.com
Jim Kabell
4094 Highway UU
Miller, MO 65707
jkabell@millertel.net
George Miranda
65 Central Park West
Apartment 10 G
New York, NY 10023
bfmcculloch@aol.com
Gordon Sweeton
17718 West 86th Street
Lenexa, KS 66219
Sweeton2011@yahoo.com
George Tedeschi
3907 Arbor Crest Way
Rockville, MD 20853
geotedeschi@gmail.com
Paul Dever
Office of the Election Supervisor
1801 K Street, N.W., Suite 421 L
Washington, D.C. 20006
pdever@ibtvote.org
Maria S. Ho
Office of the Election Supervisor
1801 K Street, N.W., Suite 421 L
Washington, D.C. 20006
mho@ibtvote.org
Kathryn Naylor
Office of the Election Supervisor
1801 K Street, N.W.
Washington, D.C. 20006
knaylor@ibtvote.org
Jeffrey Ellison
214 S. Main Street, Ste. 210
Ann Arbor, MI 48104
EllisonEsq@aol.com
