June 18, 1996
VIA UPS OVERNIGHT
James P. Hoffa
June 18, 1996
Page 1
James P. Hoffa
2593 Hounds Chase
Troy, MI 48098
Paul Alan Levy
Public Citizen Litigation Group
1600 20th Street, N.W.
Washington, DC 20009
Bradley T. Raymond
Finkel, Whitefield, Selik, Raymond
Ferrara & Feldman, P.C.
32300 Northwestern Highway, Suite 200
Farmington Hills, MI 48334
James P. Hoffa
June 18, 1996
Page 1
Re: Election Office Case No. P-788-IBT-EOH
Gentlemen:
A pre-election protest was filed pursuant to Article XIV, Section 2(b) of the Rules for the 1995-1996 IBT International Union Delegate and Officer Election (“Rules”) by
James P. Hoffa, a candidate for general president. The protester alleges that Attorney
Paul Alan Levy, and his employer, Public Citizen Litigation Group, violated Article XII, Section 2(e) of the Rules. The protester claims that Mr. Levy was not entitled to examine his Campaign Contribution and Expenditure Reports (“CCERs”) because Mr. Levy obtained access to inspect the CCERs under “false pretenses” as a representative of an individual candidate on the Carey slate and the Carey campaign. Mr. Levy has otherwise taken the position that he does not represent the Carey campaign.
James P. Hoffa
June 18, 1996
Page 1
Mr. Levy responds that the protest is untimely because it has “been months since Hoffa has been told, or at least should have known, that I do not represent the Carey campaign.” On the merits, Mr. Levy argues that the protester mischaracterizes the dictum of the Election Officer in Hoffa, P-743-IBT-SCE (May 23, 1996) when he states that the Election Officer has “unequivocally found that Mr. Levy does not represent any candidate or candidate slates.” Further, Mr. Levy argues that the fact that he does not represent the Carey campaign does not bar him from acting as the representative of an individual candidate from time to time with the performance of a particular function. Therefore, Mr. Levy argues that in inspecting CCERs on behalf of an individual candidate on the Carey slate, he did not directly represent the Carey slate, was not employed by the slate, nor did he become an agent of the slate.
The protest was investigated by Election Office Representative Kathryn Naylor.
On May 6, 1996, Joseph Rockstroh, member of Local Union 355, and Mr. Levy inspected the CCERs of various International union officer candidates, including those of the protester. Mr. Rockstroh and Mr. Levy had been designated as candidate representatives of an individual candidate on the Carey slate. Mr. Levy has inspected the CCERs of the protester on a prior occasion, also as a representative of an individual candidate on the Carey slate.
The protester’s argument rests on the language of the Election Officer in Hoffa, supra, that neither Mr. Levy nor any other members of the board of directors of the Association for Union Democracy directly represent, are employed by or are agents of the Carey campaign. The protester contends that this finding regarding Mr. Levy’s status directly conflicts with the role of candidate representative Mr. Levy is deemed to assume when he is allowed access to inspect the CCERs of International union officer candidates, including those of the protester. The protester asserts that the August 3, 1995 memorandum from the Election Officer to candidates for International union office regarding the inspection of CCERs, provides that the only way Mr. Levy is permitted to examine CCERs would be as counsel to an IBT member designated by an International officer candidate(s) as his/her representative. Moreover, since the Election Officer’s August 3, 1995 memorandum also states that “Each candidate on the slate shall be deemed to be represented by each and every other candidate on the slate and by all representatives and professionals authorized by any candidate on the slate,” the protester asserts, in accordance with this language, that when inspecting the CCERs, Mr. Levy would be deemed a representative of: (1) the member designated by the International union officer candidate; (2) the candidate who authorized the inspection; and (3) all of the other candidates on the authorizing candidate’s slate. Therefore, Mr. Levy would be deemed to be a representative of: (1) Mr. Rockstroh; (2) the individual candidate on the Carey slate who designated Mr. Rockstroh to inspect the CCERs; and (3) all other candidates on the Carey slate.
James P. Hoffa
June 18, 1996
Page 1
Article XIV, Section 2(b) of the Rules requires protesters to file “within two (2) working days of the day when the protestor becomes aware or reasonably should have become aware of the action protested.” The short time limits are important to ensuring that alleged violations of the Rules are quickly brought to the attention of the Election Officer in order to afford the greatest opportunity for applying an effective remedy if a violation is found. Here, Mr. Levy argues that since at least January 3, 1996, he has repeatedly stated in protest appeal arguments in which the protester has been a party that he does not represent the Carey slate. Therefore, he argues that the protester cannot rely on receipt of the Election Officer’s decision in Hoffa, supra, to start the running of the statute of limitations. The Election Officer recognizes that Mr. Levy’s arguments on the timeliness of the instant protest may have merit. Nevertheless, the Election Officer has not treated time limits as an absolute jurisdictional requirement, but rather as a prudential restriction. The Election Officer has determined that she will address this protest on the merits because it raises an important issue concerning the interpretation of the Election Officer’s memorandum on CCERs.
Article XII, Section 2(e) of the Rules provides that “Each candidate for International Office shall have the right to inspect, but not copy, any other candidate’s campaign financing and expenditure reports at the Office of the Election Officer in Washington, D.C., once after each report is filed before the International Officer election and once after said election, by appointment made with the Election Officer.” In an August 3, 1995 memorandum to Candidates for International union office regarding the inspection of candidates’ CCERs, the Election Officer stated that:
While the Rules specify that the right to inspect is the right of the candidate, the Election Officer has determined, consistent with other provisions of the Rules and the Labor-Management Reporting and Disclosure Act, that a candidate may designate a representative to act in his/her stead. See Rules, Article VIII, section 12.[1] Pursuant to this provision, the representative must be an IBT member and authorized to act on behalf of the candidate.
Because of the nature of these reports, the Election Officer will permit the candidate or his/her representative to be accompanied by someone--whether or not an IBT member--trained in accounting and/or law. The determination in this regard by the Election Officer is in accord with rights afforded Union members when otherwise inspecting Union books and records pursuant to the provisions of the Labor Management and Disclosure Act.
To the extent that the candidate will be accompanied by a legal or accounting “expert” or if the inspection is to be accomplished by a representative appointed by the candidate, written notification shall be provided to the Election Officer by the candidate prior to the date and time for the inspection.
James P. Hoffa
June 18, 1996
Page 1
In response to this protest, and consistent with the Election Officer’s findings in Hoffa, supra, Mr. Levy has declared that he does not represent the Carey campaign, but acknowledges that he has represented individual candidates on the Carey slate when inspecting CCERs and in connection with discrete protests.[2]
The Election Officer does not find that Mr. Levy has violated the Rules by seeking access to inspect the CCERs of International union officers as a representative of an individual candidate on the Carey slate. The Election Officer notes that an attorney representing an individual candidate on a slate for the limited purpose of inspecting the CCERs does not convert him into the attorney for the slate’s campaign.
The protester’s reliance on the language of the Election Officer’s August 3, 1995 memorandum that deems a representative of an individual candidate as a representative of all candidates on the same slate is an inappropriate basis for the protester’s argument that
Mr. Levy represents the entire Carey slate or Carey campaign. The August 3, 1995 memorandum provides that:
Given the space limitations of the Office of the Election Officer, the Election Officer may if necessary and appropriate, limit, for candidates who are members of a slate, the number of candidates or candidate representatives who are entitled to inspect. All slates of candidates shall be treated equitably. Each candidate on the slate shall be deemed to be represented by each and every other candidate on the slate and by all representatives and professionals authorized by any candidate on the slate.
(Emphasis supplied.) This language addresses a potential problem the Election Office would face if all or a majority of individual candidates made requests to inspect the CCERs and the Election Office could not accommodate all of these requests, due to the space limitations of the Election Office. In accordance with this language, the Election Office would limit access to inspect the CCERs so that all slates were treated equally. Thus, the Election Officer has retained the authority, if necessary, to treat the inspection by an individual candidate on a slate as an inspection opportunity for the entire slate. That is, an attorney representing an individual candidate, such as Mr. Levy, would be deemed a representative of the entire slate only for purposes of affording or denying other candidates on the same slate an opportunity to inspect CCERs. To date, the Election Officer has not found it necessary to limit CCER inspections by candidates or designated representatives because of space or staff constraints.
Therefore, the Election Officer does not find that inspection of CCERs was based on false pretenses or was otherwise improper.
James P. Hoffa
June 18, 1996
Page 1
Accordingly, the protest is DENIED.
Any interested party not satisfied with this determination may request a hearing before the Election Appeals Master within one day of receipt of this letter. The parties are reminded that, absent extraordinary circumstances, no party may rely upon evidence that was not presented to the Office of the Election Officer in any such appeal. Requests for a hearing shall be made in writing and shall be served on:
Kenneth Conboy, Esq.
Latham & Watkins
885 Third Avenue, Suite 1000
New York, NY 10022
Fax (212) 751-4864
Copies of the request for hearing must be served on the parties listed above as well as upon the Election Officer, 400 N. Capitol Street, Suite 855, Washington, DC 20001, Facsimile
(202) 624-3525. A copy of the protest must accompany the request for a hearing.
Sincerely,
Barbara Zack Quindel
Election Officer
cc: Kenneth Conboy, Election Appeals Master
[1]Article VIII, Section 12 provides that “[e]ach International Officer candidate may authorize any member(s) of the Union to serve as his credentialed representative . . . The credentialed representative(s) shall, in that candidate’s absence, have the same rights as are permitted the candidate in this Article [VIII].
[2]In Hoffa, supra, the Election Officer did not, as alleged by the protester, “unequivocally [find] that Mr. Levy does not represent any candidate or candidate slates.” In that case, the Election Officer refers to Mr. Levy not representing, being employed by or being an agent of “the Carey campaign.”