O'Brien-Zuckerman 2021, 2021 ESD 176
OFFICE OF THE ELECTION SUPERVISOR
for the
INTERNATIONAL BROTHERHOOD OF TEAMSTERS
IN RE: O'Brien-Zuckerman 2021, ) Protest Decision 2021 ESD 176
) Issued: November 7, 2021
Protestor. ) OES Case No. P-193-102021-NE
____________________________________)
In O'Brien-Zuckerman 2021, 2021 ESD 169 (October 30, 2021), we ordered candidate Bernadette Kelly no later than Friday, November 5, 2021, to show cause why contributions of 102 contributors should not be deemed impermissible contributions from nonmembers. In the interim, we ordered Kelly to remove those contributions totaling $3,002.50 from her campaign’s general account and place them in her campaign’s escrow account.
Kelly complied with both orders, timely moving the designated funds to her escrow account, where it remains, and timely responding to the show cause order.
As we stated in the initial decision, Article XI, Section 1(b)(1) mandates that “[o]nly contributions which are properly made, accepted, and reported under these Rules may be expended or used by candidates” in the election. Only members may make campaign contributions, Article XI, Section 1(b)(8), and candidates and slates are barred from soliciting or accepting campaign contributions from nonmembers, Article, Section 1(b)(4). “Nonmember” is a person who is not a “member,” Definition 33; “nonmember” also includes “any former member of the IBT (including a retiree),” Article XI, Section 1(b)(4).
We also noted in the initial decision that OES maintains a CCERS system by which candidates may determine member eligibility instantaneously by entering the person’s name, local union number, SSN4, and contribution amount into the CCERS system. When a candidate finds that a person claiming to be a member does not appear in the CCERS database, the candidate is required to reject the contribution, unless the candidate verifies with the TITAN operator for the local union in which membership is claimed that the person is indeed a member.
In the initial decision, we found that the 4 contributions identified by the protestor were made by persons the CCERS system identified as nonmembers and for whom Kelly was to obtain confirmation of membership status before she could accept their contributions. We found Kelly did not do so. Rather, she relied on the assertions of the contributors themselves as to their membership status and then manually added each name to the CCERS system database. Based on that manual addition, she then verified the sums, totaling $750, as campaign contributions permitted by the Rules. We found her action with respect to those contributions was improper and violated the Rules. We ordered her either to refund the contributions to those persons or to obtain their consent to accept the contributions into her campaign’s legal and accounting account. Kelly timely refunded the contributions.
We also found 102 contributions totaling $3,002.50 that CCERS indicated were made by nonmembers. We directed Kelly to show cause why those contributions should not also be refunded. Kelly investigated each of the contributions by contacting TITAN operators at the local unions the contributors stated they were members of. Her investigation showed that 87 of the contributors were members at the time they made their contributions, and she documented this investigation to OES. Based on this investigation, we hereby release Kelly of the order requiring that she maintain in her campaign’s escrow account the aggregate sum of those 87 contributions, totaling $2,322.50.
Kelly’s investigation concluded that 11 contributors who told her they were members at the time they contributed to her campaign indeed were not. She has informed us that she intends to refund those contributions, totaling $340.00. We direct that she do so no later than Tuesday, November 9, 2021, and provide proof by the same date to OES by declaration that she has done so.
Finally, Kelly reports that she has been unable to determine, to date, whether the remaining 4 contributors, who contributed an aggregate amount of $340, were qualified to contribute at the time they did so. We direct that Kelly complete her investigation and report such to OES no later than Tuesday, November 9, 2021, either by establishing the contributors were qualified to contribute or by refunding the contributions by that date.
We reserve further remedy on this protest, including possible sanctions for accepting impermissible contributions, pending Kelly’s response to the show cause order.
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 176
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
Bernadette Kelly
Bkelly.teamsterpower@gmail.com
James Donovan
Jdonovan.ne@gmail.com
Terry Flick
tflick@ibtvote.org
Jeffrey Ellison
EllisonEsq@gmail.com