Teamster Power, 2021 ESD 151
OFFICE OF THE ELECTION SUPERVISOR
for the
INTERNATIONAL BROTHERHOOD OF TEAMSTERS
IN RE: TEAMSTER POWER, ) Protest Decision 2021 ESD 151
) Issued: October 5, 2021
Protestor. ) OES Case No. P-177-100121-NA
____________________________________)
Teamster Power, a slate of candidates for International office, filed a pre-election protest pursuant to Article XIII, Section 2(b) of the Rules for the 2020-2021 IBT International Union Delegate and Officer Election (“Rules”). The protest alleged that O'Brien-Zuckerman 2021, an opposing slate of candidates for International office, violated the Rules by failing to disclose anticipated campaign expenditures fully.
Election Supervisor representative Jeffrey Ellison investigated this protest.
Findings of Fact and Analysis
This protest arises from the disclosure requirement of Article XI, Section 2(d)(3) of the Rules, which provides the following:
Four weeks prior to the date on which the ballots are to be mailed to members …, each candidate, slate and independent committee shall submit a budget of fund raising and expenditures anticipated through the end of the campaign on a form to be promulgated by the Election Supervisor. Thereafter and until the deadline established by the Election Supervisor for the receipt of ballots, each candidate, slate and independent committee shall report deviations from the submitted budget of more than $1,000 with respect to any budgeted item within 48 hours of learning of such deviation by submitting an amended budget of fund raising and expenditures to the Election Supervisor, who shall promptly notify every other candidate, slate and independent committee of the filing of such amended budget.
The purpose of this provision is to enhance campaign finance integrity by mandating an advance report of anticipated campaign expenditures 4 weeks before ballots are to be mailed, together with prompt reporting of deviations from that report. Such reporting seeks to minimize the risk that late and unannounced expenditures – and the provenance of the funds used to pay those expenditures – may affect the outcome of the election.
Both slates duly filed the reports required by the quoted section, on CCERS Addendum 2, a form created by OES for this purpose. The O'Brien-Zuckerman 2021 slate’s Addendum 2 listed anticipated expenditures totaling $848,432, to be made between the date of filing in September 2021 and the end of the campaign in November 2021. On the same date it filed the Addendum 2 report, the O'Brien-Zuckerman 2021 slate filed its Period #5 CCER report, documenting campaign contributions and expenditures for the period June 1, 2021 through August 31, 2021. The total fund balances on hand as of the end of Period #5 showed $1,106,182.97, a figure greater than the total reported on Addendum 2 by the sum of $257,750.97.
Subsequently, on October 5, 2021, O'Brien-Zuckerman 2021 filed a deviation report, effectively amending the Addendum 2 with respect to 3 anticipated expenditures: 1) it raised a particular printing cost by the sum of $527.79, changing a previous estimate to reflect the balance shown on an invoice for the services; 2) it increased a separate printing cost estimate by $40,000, a 6 2/3% increase over the previous estimate, to pay for additional GOTV mailings, a decision it reached because of a discrete campaign development; and 3) it added a new entry not previously included, for website construction and maintenance and web hosting, in the amount of an invoice for $2,489 just received. The figures in the deviation report raised the total anticipated expenditures reported in Addendum 2 by $43,016.79, to $891,448.79.
The apparent motivation for Teamster Power’s protest is its suspicion that O'Brien-Zuckerman 2021 has not fully disclosed its anticipated expenditures. The sole basis for the protestor’s suspicion is that O'Brien-Zuckerman 2021 has more money on hand – after the deviation report is considered, a sum approaching $215,000 – than its Addendum 2 reports it anticipates spending through the end of the campaign. As the protest puts it, O'Brien-Zuckerman 2021 “cannot hide anticipated expenditures by understating anticipated expenditures and then submitting amendments making significant expenditures after the fact.”
A candidate or slate subject to Article XI, Section 2(d)(3) may not evade that provision’s requirements by failing to disclose expenditures it anticipates making. There is no evidence on this record that O'Brien-Zuckerman 2021 has done so. Representatives of the slate have attested that the items identified in the original Addendum 2 and the deviation report just filed are the campaign’s best estimates of the expenditures it intends to make. Variances from these estimates reported in any subsequent deviation report – or expenditures reported in a CCER filing for Periods 6 through 10 or otherwise discovered – that substantially deviate from totals shown on the Addendum 2 will be given close scrutiny to determine whether the Section 2(d)(3) mandate was honored.
The remedy the protestor seeks is to lock O'Brien-Zuckerman 2021 into its Addendum 2 estimates and bar it from spending more than the disclosed amounts. It proposes to do so by requiring – now – that O'Brien-Zuckerman 2021 either refund to contributors or donate to charity the amount that exceeds the Addendum estimates. The Rules require disposition of excess funds that remain after the election has concluded, Article XI, Section 1(b)(14), but such a remedy is not warranted at a time when ballots have just been mailed to members and no Rules violation established.
For these reasons, we DENY this protest.
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. Any party requesting a hearing must comply with the requirements of Article XIII, Section 2(i). All parties are reminded that, absent extraordinary circumstances, no party may rely in any such appeal upon evidence that was not presented to the Office of the Election Supervisor. Requests for a hearing shall be made in writing, shall specify the basis for the appeal, and shall be served upon:
Barbara Jones
Election Appeals Master
IBTappealsmaster@bracewell.com
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, all within the time prescribed above. Service may be accomplished by email, using the “reply all” function on the email by which the party received this decision. A copy of the protest must accompany the request for hearing.
Richard W. Mark
Election Supervisor
cc: Barbara Jones
2021 ESD 151
DISTRIBUTION LIST (BY EMAIL UNLESS NOTED):
Bradley T. Raymond, General Counsel
International Brotherhood of Teamsters
braymond@teamster.org
Edward Gleason
egleason@gleasonlawdc.com
Patrick Szymanski
szymanskip@me.com
Will Bloom
wbloom@dsgchicago.com
Tom Geoghegan
tgeoghegan@dsgchicago.com
Rob Colone
rmcolone@hotmail.com
Barbara Harvey
blmharvey@sbcglobal.net
Fred Zuckerman
fredzuckerman@aol.com
Ken Paff
Teamsters for a Democratic Union
ken@tdu.org
Scott Jenkins
scott@oz2021.com
Jeffrey Ellison
EllisonEsq@gmail.com