March 19, 1998
VIA UPS OVERNIGHT
Ken Mee
March 19, 1998
Page 1
Ken Mee
42356 Greenbrier Park Drive
Fremont, CA 94538
James P. Hoffa
2593 Hounds Chase
Troy, MI 48098
Susan Davis, Esq.
Cohen, Weiss and Simon
330 West 42nd Street
New York, NY 10036
Bradley T. Raymond, Esq.
Finkel, Whitefield, Selik,
Raymond, Ferrara & Feldman
32300 Northwestern Highway
Suite 200
Farmington Hills, MI 48334
John Travin, President
Trade Union Courier
215 Lexington Avenue
New York, NY 10016
Ken Mee
March 19, 1998
Page 1
Re: Election Office Case No. PR-045-JHC-PNW
Decision on Remand
Gentlepersons:
The protester alleged that The Trade Union Courier (“Courier”) violated the Rules for the 1995-1996 IBT International Union Delegate and Officer Election (“Rules”) by publishing and circulating articles which supported the candidacy of James P. Hoffa. The investigation established that the Courier published a series of articles containing campaign materials produced by the Hoffa campaign. The Election Officer concluded that the articles were campaign contributions but, with one exception, did not violate the Rules.
In his decision dated February 18, 1998, the Election Officer found that the Courier was a publication disseminated to the general public specifically targeting those interested in labor news. Thus, the “media exception” to the regulation of campaign contributions was determined to be applicable to the articles protested. Under the “media exception,” the Election Officer does not exercise jurisdiction over “newspaper or magazine articles published by entities which are not owned or whose editorial policies are not controlled by candidates or committees acting on behalf of candidates.” Pressler, P-365-LU705-CHI (February 22, 1996); Brennan, P-971-IBT (October 16, 1991); Scott, P-969-IBT (October 18, 1991); Sauwoir, P-041-LU41-EOH, et. seq. (August 16, 1995). The Election Officer found that the Courier was not owned or controlled by Mr. Hoffa or any other candidate.
Ken Mee
March 19, 1998
Page 1
However, the Election Officer further concluded that the “media exception” specifically did not apply to the “Hoffa’s Corner” article contained in the October/November 1997 issue of the Courier. The article appearing in that issue contained a verbatim reprint of a solicitation by the Hoffa Campaign for contributions of time and money. The “media exception” does not apply to solicitations for campaign assistance, but is limited only to publications functioning as a provider of news, commentary, or editorial comment. Rockstroh, P-1003-JHC-EOH (November 5, 1996). Since the solicitations were not protected by the “media exception,” the Election Officer determined that the Rules were violated at Article XII, Section 1(b)(1).
The Election Officer ordered Mr. Hoffa and his campaign to “immediately cease and desist from the acceptance or use of improper employer contributions” and ordered the Courier specifically to refrain from publishing future solicitations produced by the Hoffa Campaign or otherwise contributing to any other candidate for IBT international office. Further, the Hoffa Campaign was ordered to pay to the Courier the sum of $10.00, representing an amount equal to the cost of purchasing an advertisement of similar size.
The matter was appealed to the Election Appeals Master and was heard on February 24, 1998. On February 27, 1998, before the decision on appeal had been issued, the Election Officer requested that the matter be remanded for reconsideration. This request was granted by the Election Appeals Master.
The request for remand was due to information received by the Election Officer that the remedy may have been based on an error concerning the Courier’s advertising rates. The Election Officer’s order requiring the Hoffa Campaign to remit the sum of $10.00 to the Courier was based upon notes of a statement of Jay Travin, the owner of the company that publishes the Courier. Notes of a January 23, 1998 interview of Mr. Travin recorded that although advertising rates vary from customer to customer, a full-page black-and-white advertisement in the Courier generally costs approximately $40.00.
Mr. Travin was telephoned by the Election Appeals Master’s office prior to the date of the hearing in order to determine whether or not he wished to participate. During that telephone conversation, Mr. Travin stated to the Election Appeals Master’s representative that he “could not understand” the Election Officer’s remedy, since the advertising rates in the Courier were thousands of dollars per page. Mr. Travin’s statement to the Election Appeals Master’s representative was reported to the Election Office on February 27, 1998.
Ken Mee
March 19, 1998
Page 1
On March 2, 1998, the Election Officer conducted an additional investigation including an examination of the Courier’s 1997 rate card, excerpts from its “receipts journal,” bank statements and several signed contracts. According to the rate card, the Courier’s adverting rates range from $13,900 for a cover page color advertisement to $4,950 for a half-page black-and-white advertisement. The half-page rate is based on an area measuring either 10 X 7 inches or 8 X 8 3/4 inches. These standard charges as set forth on the rate card were further verified by contacting several agencies representing Courier advertisers.
The Election Officer’s original findings concerning advertising rates were erroneous. The “Hoffa’s Corner” column appearing in the October/November 1997 issue of the Courier is 8 X 7 3/4 inches or 89 percent of a full half-page ad. The Election Officer finds therefore that the value of the Courier’s improper contribution to Mr. Hoffa’s campaign is $4,405.50.
Accordingly, the Election Officer confirms the decision in Mee, PR-045-JHC-PNW (February 18, 1998) in its entirety except for the amount that the Hoffa Campaign was ordered to pay the Courier. The Election Officer orders the Hoffa Campaign to pay the Courier the sum of $4,405.50 and corrects paragraph 3 of the remedy as follows:
3. Within five (5) days of receipt of this decision, the Hoffa Campaign shall pay to the Courier the sum of $4,405.50. Further, within five (5) days of receipt of this decision, Mr. Hoffa will file an affidavit with the Election Officer establishing his compliance with this order.
An order of the Election Officer, unless otherwise stayed, takes immediate effect against a party found to be in violation of the Rules. In Re: Lopez, 96 - Elec. App. - 73 (KC) (February 13, 1996).
Any interested party not satisfied with this determination may request a hearing before the Election Appeals Master within one (1) day of the 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
Ken Mee
March 19, 1998
Page 1
Copies of the request for hearing must be served on the parties listed above as well as upon the Election Officer, 444 North Capitol Street, NW, Suite 445, Washington, DC 20001, Facsimile (202) 624-3525. A copy of the protest must accompany the request for a hearing.
Sincerely,
Michael G. Cherkasky
Election Officer
MGC:chh
cc: Kenneth Conboy, Election Appeals Master
Christine M. Mrak, Regional Coordinator