Minutes for February 10, 2021 Meeting

Posted in Main, Minutes

Campaign Spending Commission
Zoom Video Conference
February 10, 2021
10:00 a.m.

Commissioners Present
Bryan Luke, Stanley Lum, Maryellen Markley, Ph.D., Neal Herbert, Vic Bonfiglio

Staff Present
Kristin Izumi-Nitao, Tony Baldomero, Gary Kam, Yayoi Tumamao, Ellisa Vendiola
Deputy Attorney General Candace Park

Guests
Karl Dicks, Charlotte Rosecrans, Sandy Ma (Common Cause)

Call to Order
Chair Luke called the meeting to order at 10:02 a.m.

Chair Luke went over the rules for this video conference meeting.

Consideration and Approval of Minutes of Meeting on 1/6/21
Chair Luke asked for comments or changes to the minutes.  There were none.  Chair Luke called for a motion to approve the minutes.

Vice Chair Lum moved to approve the minutes of the 1/6/21 meeting.  Motion seconded by Commissioner Markley.  Motion carried (4-0).  Commissioner Markley seconded and voted, but she was not at the 1/6/21 meeting.

New Business
Executive Director Izumi-Nitao stated that the ten (10) Conciliation Agreements on the agenda were a result of investigations initiated by Commission staff pursuant to HRS §11-314(7) to determine whether there had been a violation of the Hawaii campaign spending laws.  She stated that Respondents have been informed in a letter from Commission staff of the violation and have been notified of today’s meeting as well as received a copy of the proposed conciliation agreement.  She recommended that the Commission make a preliminary determination of probable cause that a violation had been committed, waive further proceedings, and approve the settlement amounts stated in each of the proposed agreements.

*Proposed Conciliation Agreement No. 21-100 – In Re the Matter of Kawano for Mayor of Hawaii County – Executive Director Izumi-Nitao explained that this proposed conciliation agreement concerns the late filing of the Final Election Period Report and requests that they assess a reduced fine from $200 to $66.67 as it is Respondent’s first violation.  Chair Luke asked if there were any comments or questions.

Vice Chair Lum moved to approve the proposed conciliation agreement.  Motion seconded by Commissioner Markley.  Motion carried (5-0).

*Proposed Conciliation Agreement No. 21-101 – In Re the Matter of Supporters of Warland Kealoha – Executive Director Izumi-Nitao explained that this proposed conciliation agreement concerns the late filing of the Final Election Period Report and requests that they assess a reduced fine from $200 to $66.67 as it is Respondent’s first violation.  Chair Luke asked if there were any comments or questions.

Vice Chair Lum moved to approve the proposed conciliation agreement.  Motion seconded by Commissioner Markley.  Motion carried (5-0).

*Proposed Conciliation Agreement No. 21-102 – In Re the Matter of Vote Vanderpool – Executive Director Izumi-Nitao explained that this proposed conciliation agreement concerns the late filing of the Final Election Period Report and requests that they assess a reduced fine from $200 to $66.67 as it is Respondent’s first violation.  Chair Luke asked if there were any comments or questions.

Vice Chair Lum moved to approve the proposed conciliation agreement.  Motion seconded by Commissioner Bonfiglio.  Motion carried (5-0).

*Proposed Conciliation Agreement No. 21-103 – In Re the Matter of U’i Kahue-Cabanting – Executive Director Izumi-Nitao explained that this proposed conciliation agreement concerns the late filing of the Final Election Period Report and requests that they assess a reduced fine from $200 to $100 as it is Respondent’s second violation.  Chair Luke asked if there were any comments or questions.

Commissioner Bonfiglio moved to approve the proposed conciliation agreement.  Motion seconded by Vice Chair Lum.  Motion carried (5-0).

*Proposed Conciliation Agreement No. 21-104 – In Re the Matter of Timothy Lee – Executive Director Izumi-Nitao explained that this proposed conciliation agreement concerns an excess contribution of $3,000 to a candidate committee and requests that they assess a reduced fine from $500 to $166.67 as it is Respondents’ first violation.  Chair Luke asked if there were any comments or questions.

Vice Chair Lum moved to approve the proposed conciliation agreement.  Motion seconded by Commissioner Bonfiglio.  Motion carried (5-0).

*Proposed Conciliation Agreement No. 21-105 – In Re the Matter of Lorraine for Hawaii – Executive Director Izumi-Nitao explained that this proposed conciliation agreement concerns the failure to file a Statement of Information for Electioneering Communications and requests that they assess a reduced fine from $500 to $250 as it is Respondent’s second violation.  Chair Luke asked if there were any comments or questions.

Vice Chair Lum moved to approve the proposed conciliation agreement.  Motion seconded by Commissioner Herbert.  Motion carried (5-0).

*Proposed Conciliation Agreement No. 21-106 – In Re the Matter of Friends of Micah Pregitzer for Office -Executive Director Izumi-Nitao explained that this proposed conciliation agreement concerns the late filing of the Final Election Period Report and requests that they assess a reduced fine from $200 to $66.67 as it is Respondent’s first violation.  Chair Luke asked if there were any comments or questions.

Vice Chair Lum moved to approve the proposed conciliation agreement.  Motion seconded by Commissioner Bonfiglio.  Motion carried (5-0).

*Proposed Conciliation Agreement No. 21-107 – In Re the Matter of Friends of Council District 9
Executive Director Izumi-Nitao explained that this proposed conciliation agreement concerns the late filing of the Final Election Period Report and requests that they assess a reduced fine from $200 to $66.67 as it is Respondent’s first violation.  Chair Luke asked if there were any comments or questions.

Vice Chair Lum moved to approve the proposed conciliation agreement.  Motion seconded by Commissioner Bonfiglio.  Motion carried (5-0).

*Proposed Conciliation Agreement No. 21-108 – In Re the Matter of Hanakahi for OHA – Executive Director Izumi-Nitao explained that this proposed conciliation agreement concerns the late filing of the Final Election Period Report and requests that they assess a reduced fine from $200 to $66.67 as it is Respondent’s first violation.  Chair Luke asked if there were any comments or questions.

Vice Chair Lum moved to approve the proposed conciliation agreement.  Motion seconded by Commissioner Bonfiglio.  Motion carried (5-0).

*Proposed Conciliation Agreement No. 21-109 – In Re the Matter of Feena Bonoan Campaign – Executive Director Izumi-Nitao explained that this proposed conciliation agreement concerns the failure to file 4 Statement of Information for Electioneering Communications and requests that they assess a reduced fine from $2,000 to $666.67 as it is Respondent’s first violation.  Chair Luke asked if there were any comments or questions.

Vice Chair Lum moved to approve the proposed conciliation agreement.  Motion seconded by Commissioner Bonfiglio.  Motion carried (5-0)

General Counsel Kam joined the meeting at 10:16 a.m. due to testifying at a legislative hearing concerning Commission bills.

Chair Luke moved to amend the agenda to change the wording under Docket No. 21-29.  He explained that it currently reads “Final Election Period Report” on the agenda but should be “2nd Preliminary General Report” as correctly stated on the complaint.  Seconded by Vice Chair Lum.  Motion carried (5-0).

*Docket No. 21-29 – In Re the Matter of Kristina Kim-Marshall and Friends of Kristina Kim-Marshall – Executive Director Izumi-Nitao reported that a complaint by the Executive Director had been filed against Kristina Kim-Marshall and Friends of Kristina Kim-Marshall for the late filing of the 2nd Preliminary General Report and the failure to file an amended Organizational Report.

She reported that in the Organizational Report filed with the Commission, Respondent Kim-Marshall is listed as the candidate and Danielle Takei is the chairperson and treasurer of the candidate committee called Friends of Kristina Kim-Marshall.

On 9/22/20, Danielle Takei submitted a letter informing the Commission that she resigned as chairperson and treasurer of the committee.  Commission staff called Respondent Kim-Marshall to inform her about Ms. Takei’s resignation and that she must appoint new officers for her committee. Respondent Kim-Marshall stated that she will appoint herself as her own chairperson and treasurer and requested a copy of Ms. Takei’s letter by email. Commission staff emailed Respondent Kim-Marshall a copy of Ms. Takei’s letter with a direct link to the eSign version of the Candidate Committee Electronic Filing Form.

Pursuant to HRS §11-334(a), Respondents were required to file the 2nd Preliminary General Report for the period covering 9/27/20 through 10/19/20 by 11:59 p.m. Hawaii standard time on 10/26/20.  Respondents did not file the report by the deadline.

On 10/27/20, Commission staff notified Respondents via first class mail of their failure to file the report and that a fine would be imposed.

On 10/30/20, Respondents filed the report.

On 11/4/20, Commission staff notified Respondents via first class mail that a fine of $300 would be assessed for the filing of the 2nd Preliminary General Report 4 days late.  Respondents did not pay the late report fine.

On 11/16/20, Respondent Kim-Marshall requested a Conciliation Agreement for the late filing of the 2nd Preliminary General Report which would reduce the fine amount of $300 to $100.  Proposed Conciliation Agreement No. 21-71 was prepared and mailed to Respondents as well as approved by the Commission at a meeting on 12/9/20.

On 12/9/20, Commission staff informed Respondents via first class mail to sign the agreement and remit the reduced fine assessment of $100 by 12/23/20.  Pursuant to the terms of Conciliation Agreement No. 21-71, Respondents were informed that “[i]f this assessment is not paid by the deadline, the Commission will consider Respondent to be in breach of this Agreement and will then assess Respondent the original amount of the fine pursuant to appropriate proceedings.”

On 11/27/20, Commission staff informed Respondents via first class mail that they need to submit an amended Candidate Committee Electronic Filing Form to appoint a new chairperson and treasurer, and to amend their Organizational Report.  Respondents did not comply by the deadline of 12/11/20.

On 12/17/20, Commission staff informed Respondents via first class mail that a fine of $50 will be assessed against them for failing to amend their Organizational Report. The letter informed Respondents that they could avoid the complaint process by waiving their rights to be heard at a HRS chapter 92 public meeting and a HRS chapter 91 contested case hearing, and voluntarily paying the fine amount, submitting an amended Candidate Committee Electronic Filing Form and filing an amended Organizational Report by 12/31/20.

Respondents did not voluntarily pay the $100 fine under Conciliation Agreement No. 21-71 or the $50 fine assessed for failing to amend their Organizational Report.  Further, Respondents did not submit an amended Candidate Committee Electronic Filing Form and did not file an amended Organizational Report.

On 12/28/20, Commission staff called Respondent Kim-Marshall and left a voicemail to follow up on the $100 fine under Conciliation Agreement No. 21-71 which was due on 12/23/20 and informed her that if she does not pay the fine, it will revert back to the original amount of $300.  Respondent Kim-Marshall did not return Commission staff’s call.

On 1/4/21, Commission staff called Respondent Kim-Marshall about the fine under Conciliation Agreement No. 21-71 and the fine assessed for failing to amend the Organizational Report.  Respondent Kim-Marshall stated that she did not know about the letters that were mailed to her or about the deadlines and provided her email address to send a copy of the letters. Commission staff emailed her a copy of the letters and informed her that the letters were mailed to the address listed on her Organizational Report and that if an amended Organizational Report is not filed and payment of the outstanding fines are not submitted by 1/8/21, a complaint will be filed. Respondents have not amended their Organizational Report or paid the fines.

On 1/12/21, Commission staff sent Respondents a copy of the complaint and set the matter on the 2/10/21 Commission agenda.

Executive Director Izumi-Nitao recommended that the Commission make a preliminary determination, pursuant to HRS §11-405(a), that probable cause exists to believe that a violation of the campaign spending law has been committed, assess an administrative fine of $300 for failure to timely file the 2nd Preliminary General Report and $50 for failure to amend the Organizational Report, order that the fines be paid from the candidate’s personal funds, if the candidate committee’s funds are insufficient to pay the fines, or if the Commission so orders that the fines, or any portion, be paid from the candidate’s funds, order that any and all administrative penalties be deposited into the general fund pursuant to HRS §11-340(g), and order that Respondents file an amended Organizational Report within two (2) weeks of receipt of this order.

Vice Chair Lum moved to make a preliminary determination that probable cause exists that a violation had been committed and to accept the fine and terms stated in the complaint.  Motion seconded by Commissioner Markley.

Chair Luke asked if there were any questions or comments.  There were none.

Motion carried (5-0).

*Docket No. 21-32 – In Re the Matter of Karl Dicks, Shirley Castillo, and Karl Dicks for Mayor
Executive Director Izumi-Nitao reported that a complaint by the Executive Director had been filed against Karl Dicks, Shirley Castillo, and Karl Dicks for Mayor for the late filing of the 1B Preliminary Primary Report, 2nd Preliminary Primary Report, Final Primary Report, and the Final Election Period Report.

She reported that in the Organizational Report filed with the Commission, Respondent Dicks is listed as the candidate and Respondent Castillo as the treasurer of the candidate committee called Karl Dicks for Mayor.  Respondent Dicks ran for Honolulu mayor, but lost in the primary election on 8/8/20.

For the 2020 election, Respondents declared that Respondent Dicks was a candidate whose aggregate contributions and aggregate expenditures for the election period would total $1,000 or less pursuant to HRS §11-339 by checking off the $1,000 or less box on their Organizational Report, and therefore, need only file the Final Election Period Report for the period covering 1/1/20 through 11/3/20 by 11:59 p.m. Hawaii standard time on 12/3/20.  On 12/4/20, Commission staff notified Respondents via first class mail of their failure to file this report and that a fine would be imposed.  On 12/16/20, Respondents filed the report.  On 12/17/20, Commission staff notified Respondents via first class mail that a fine of $307.68 would be assessed for the filing of the report 13 days late.  Respondents did not pay the late report fine.  On 12/21/20, Respondent Dicks informed Commission staff that he would like to pursue a complaint.  On 12/23/20, Commission staff sent Respondents a copy of the complaint Docket No. 21-28 and set the matter on the 1/6/21 Commission agenda.  At this meeting, staff recommended that this complaint be withdrawn to permit staff to look further into the matter.

Upon further review, Commission staff discovered that Respondents exceeded the $1,000 threshold on 6/30/20, and therefore, pursuant to HRS §§11-333(a) and 11-334(a) were required to timely file:  (1) The 1st Preliminary Primary Report for the period covering 1/1/20 through 4/25/20 which was due no later than 11:59 p.m. Hawaii standard time on 4/30/20; (2) The 1B Preliminary Primary Report for the period covering 4/26/20 through 6/30/20 which was due no later than 11:59 p.m. Hawaii standard time on 7/9/20; (3) the 2nd Preliminary Primary Report for the period covering 7/1/20 through 7/24/20 which was due no later than 11:59 p.m. Hawaii standard time on 7/29/20; (4) the Final Primary Report for the period covering 7/25/20 through 8/8/20 which was due no later than 11:59 p.m. Hawaii standard time on 8/28/20; and (5) the Final Election Period Report for the period covering 8/9/20 through 11/3/20 (which is a new reporting period because Respondents were supposed to file the earlier reports) which was due no later than 11:59 p.m. Hawaii standard time on 12/3/20.

On 1/6/21, Commission staff sent Respondents a letter via first class mail informing them that all of the aforementioned reports were not filed and that a fine would be imposed (except for the 1st Preliminary Primary Report because Respondents had not exceeded the $1,000 threshold).  This letter was addressed to Respondents at the addresses listed on their Organizational Report.

On 1/6/21, Respondents electronically filed the aforementioned reports.

On 1/7/21, Commission staff sent Respondents a letter via first class mail notifying them that a fine in the total amount of $951.14 will be assessed against them for the late filing of the reports (i.e., $251.14 for the late filing of the 1B Preliminary Primary Report which is 25% of the total amount of expenditures for the period, $300 for the late filing of the 2nd Preliminary Primary Report which is the minimum fine, $200 for the late filing of the Final Primary Report which is the minimum fine, and $200 for the late filing of the Final Election Period Report which is the minimum fine).  The letter informed Respondents that they could avoid the complaint process by waiving their rights to be heard at a HRS chapter 92 public meeting and a HRS chapter 91 contested case hearing, and voluntarily paying the fine amount by 1/21/21.  This letter was addressed to Respondents at the addresses listed on their current Organizational Report.

Respondents did not voluntarily pay the late report fines.

On 1/25/21, Respondent Dicks informed Commission staff that he is contesting the fine despite being eligible for a conciliation agreement which would reduce the fine because these were Respondents’ first late reports.

On 1/27/21, Commission staff sent Respondents a copy of the complaint and set the matter on the 2/10/21 Commission agenda.

Executive Director Izumi-Nitao recommended that the Commission make a preliminary determination, pursuant to HRS §11-405(a), that probable cause exists to believe that a violation of the campaign spending law has been committed, assess an administrative fine total of $951.14 for the late filing of 4 reports, order that the fine be paid from the candidate’s personal funds, if the candidate committee’s funds are insufficient to pay the fine, or if the Commission so orders that the fine, or any portion, be paid from the candidate’s funds, and order that any and all administrative penalties be deposited into the general fund pursuant to HRS §11-340(g) within two (2) weeks of receipt of this order.

Executive Director Izumi-Nitao stated that Respondent Dicks submitted documents via email which were given to the Commissioners.

Respondent Karl Dicks was present and stated that he is new to the process and a bit confused.  He explained that he called the Commission office regarding the 1st Preliminary Primary Report on the date it was due and was told he did not need to file the report because there were only two candidates running for Mayor at the time, and thus, he would go directly to the general election.  That soon changed when additional candidates were added to the ballot.  He said he is not sure if that is why he was not being penalized for not filing this report on time.

With regard to the $1,000 limit, Respondent Dicks stated it was his misunderstanding that it only applied to contributions.  He only received $900 in contributions.  Respondent Dicks stated that his expenditures was where he exceeded the $1,000 limit and he was unaware of that.  He said he only brought in $900, so anything over that was his own money which he did not think would count.  He further explained that he was told the contributions and expenditures are combined, but the statutes address them separately.

Respondent Dicks argued that it seems odd that he is being fined more than what he received in contributions.  He stated that HRS §11-340 provides that the maximum fine is 25% of the total contributions or expenditures reported, whichever is greater.  He argued that the fines should be 25% of what was reported for each late report.  Respondent Dicks said his main point is that the fine is excessive for a first-time candidate and this being his first offense of anything.

Chair Luke informed Respondent Dicks that he is eligible for a 2/3rd reduction of this fine through a conciliation agreement.  He stated that the Commission can defer this matter to the next meeting if he would like to work with the staff on a conciliation agreement.  Executive Director Izumi-Nitao further explained that the conciliation agreement would reduce the fine amount from $951.14 to $317.05, which can be paid through a payment plan.

Respondent Dicks responded in agreement, but asked for explanation on how the penalties compound and where the maximum 25% and minimum fines were applied.

Associate Director Baldomero stated that the penalties do not compound and explained how each of the fines were computed as provided by HRS §11-340:

(1) 1B Preliminary Primary Report – the late filing of this report starts with a daily fine of $50 a day for the first 7 days then a minimum fine of $200 a day thereafter not to exceed 25% of the total contributions or expenditures, whichever is greater.  Respondent Dicks reported $600 in total contributions and $1,004.56 in total expenditures during this reporting period.  Since the report was filed in January 2021 and the daily fine was really high, the 25% cap was applied to the total expenditures reported.  25% of $1,004.56 is $251.14 hence the $251.14 fine.

(2) 2nd Preliminary Primary Report – HRS §11-340 specifies that the daily fine for the late filing of the 2nd Preliminary Primary Report starts at $300 a day, not to exceed 25% of the total contributions or expenditures, whichever is greater.  The minimum fine for filing this report late is $300.  Respondent Dicks reported $100 in contributions and $226.15 in expenditures.  The 25% of these numbers are less than the minimum fine of $300. Therefore, the minimum fine of $300 was assessed.

(3) Final Primary Report – the law provides for a daily fine of $50 a day for the first 7 days then a minimum fine of $200 a day thereafter not to exceed 25% of the total contributions or expenditures, whichever is greater.  The minimum fine for filing this report more than 4 days late is $200.  Respondent Dicks reported $0 contributions and expenditures, but filed well after the deadline in January 2021.  Therefore, a minimum fine of $200 was assessed.

(4) Final Election Period Report – the law provides for a daily fine of $50 a day for the first 7 days then a minimum fine of $200 a day thereafter not to exceed 25% of the total contributions or expenditures, whichever is greater.  The minimum fine for filing this report more than 4 days late is $200.  Respondent Dicks reported $0 contributions and expenditures, but filed in January 2021.  Therefore, a minimum fine of $200 was assessed.

Respondent Dicks stated that he would have to further investigate because 25% of $0 is $0.  He said this seems rather odd to him and hardly seems correct because he is facing fines and penalties in excess of his contributions which was less than $1,000.  He said the fine is excessive.

Chair Luke asked Respondent Dicks if he would like to continue working with the staff on computing the fines and hopefully work out a conciliation agreement which would reduce the fine by 2/3rd.  Respondent Dicks responded in agreement.

Respondent Dicks shared that his main goal before the Commission was to share that there are a lot of problems with the election systems and operations.  He said he tried to work with the Office of Elections, but they refused.  He stated he would like to work with the Commission to address those problems and to understand how things work, not just for his benefit but for other people’s benefit.  Executive Director Izumi-Nitao responded that she would discuss his concerns with him, but recommended that he take care of his complaint first.

Chair Luke moved to defer this matter to the next Commission meeting so that staff can work with Respondent to sort out the fines and hopefully come up with a conciliation agreement.  Vice Chair Lum seconded.

Chair Luke asked if there were any further questions or comments.  There were none.

Motion carried (5-0).

*Docket No. 21-33 – In Re the Matter of Kevin McDonald and Friends of Kevin McDonald
Executive Director Izumi-Nitao reported that a complaint by the Executive Director had been filed against Kevin McDonald and Friends of Kevin McDonald for the late filing of the Final Election Period Report.

She reported that in the Organizational Report filed with the Commission, Respondent McDonald is listed as the candidate and treasurer of the candidate committee called Friends of Kevin McDonald.

Pursuant to HRS §11-334(a), Respondents were required to file the Final Election Period Report for the period covering 8/9/20 through 11/3/20 by 11:59 p.m. Hawaii standard time on 12/3/20.  Respondents did not file the report by the deadline.

On 12/4/20, Commission staff notified Respondents via first class mail of their failure to file the report and that a fine would be imposed.

On 12/4/20, Respondents filed the report.

On 12/7/20, Commission staff notified Respondents via first class mail that a fine of $50 would be assessed for the filing of the Final Election Period Report late.  Respondents did not pay the late report fine.

On 12/30/20, Respondent McDonald requested a Conciliation Agreement for the late filing of the Final Election Period Report which would reduce the fine amount of $50 to $25 because this was Respondents’ second violation of filing a late report.  Proposed Conciliation Agreement No. 21-96 was prepared and mailed to Respondents as well as approved by the Commission at a meeting on 1/6/21.

On 1/6/21, Commission staff informed Respondents via first class mail to sign the agreement and remit the reduced fine assessment of $25 by 1/20/21.  Pursuant to the terms of Conciliation Agreement No. 21-96, Respondents were informed that “[i]f this assessment is not paid by the deadline, the Commission will consider Respondent to be in breach of this Agreement and will then assess Respondent the original amount of the fine pursuant to appropriate proceedings.”

Respondents did not voluntarily pay the $25 fine under Conciliation Agreement No. 21-96.

On 1/25/21, Commission staff called Respondent McDonald and left him a voicemail regarding compliance of Conciliation Agreement No. 21-96.  He was reminded that if he does not submit payment for the reduced assessment of $25 and sign the agreement, the fine amount will revert back to the original amount of $50 and a Complaint may be filed for the nonpayment of the fine.  Respondents did not comply with the terms of Conciliation Agreement No. 21-96 by not paying the reduced assessment of $25 or signing the agreement.

On 1/29/21, Commission staff sent Respondents a copy of the complaint and set the matter on the 2/10/21 Commission agenda.

Executive Director Izumi-Nitao recommended that the Commission make a preliminary determination, pursuant to HRS §11-405(a), that probable cause exists to believe that a violation of the campaign spending law has been committed, assess an administrative fine of $50 for failure to timely file the Final Election Period Report, order that the fines be paid from the candidate’s personal funds, if the candidate committee’s funds are insufficient to pay the fines, or if the Commission so orders that the fines, or any portion, be paid from the candidate’s funds, and order that any and all administrative penalties be deposited into the general fund pursuant to HRS §11-340(g) within two (2) weeks of receipt of this order.

Vice Chair Lum moved to make a preliminary determination that probable cause exists that a violation had been committed and to accept the fine and terms stated in the complaint.  Motion seconded by Commissioner Bonfiglio.

Chair Luke asked if there were any questions or comments.  There were none.

Motion carried (5-0).

Old Business
*Consideration, Discussion, and/or Update of Commission Legislation and Other Campaign Finance Related Bills/Resolutions for the 2021 Legislative Session
General Counsel Kam reported about the status of the Commission’s 8 bills as well as other bills impacting Commission operations/business for the 2021 Legislative Session.

With regard to S.B. 635, Chair Luke asked if the bill affects the Commission’s ability to assess a fine in matters that gets referred to the prosecuting authority.  General Counsel Kam responded that the bill covers prosecutors’ independent decision to prosecute for campaign finance violations but would not prohibit the Commission from its Chapter 11 activities.  He further confirmed that under this bill, a person can be fined by the Commission and be prosecuted through the prosecuting authority.

With regard to S.B. 981, Commissioner Herbert stated that he is concerned about the impact it will have on the Hawaii Election Campaign Fund (“HECF”).  He asked if the Commission should recommend a cap on the increases.  General Counsel Kam responded that he is not sure if we are prepared to recommend a number on the increase.  He also stated that while he understands that the law should be updated, if they are going to increase the maximum public funding amount then that should be done for all races, not just the selected few.  Commissioner Herbert commented that his main concern was how the increases may lead to depletion of the HECF.  General Counsel Kam responded that he shares his concern.

With regard to S.B. 1350 and S.B. 1351, General Counsel Kam stated there are many problems with these bills and will be testifying in opposition.  He said something similar was done in Wisconsin and Connecticut and did not work.  Executive Director Izumi-Nitao further explained that when it was done in Wisconsin and Connecticut, it was dismantled within 5-10 years and were left with weakened government watchdog agencies.  She further explained the issues of conflict of interest, confusion with hierarchy, and maintaining independence.  Chair Luke commented that while it sounds like a good thing, it may create larger government and confusion.  Ms. Sandy Ma of Common Cause also commented that they will be objecting to this bill.

Chair Luke asked if there were any more comments or questions.  There were none.

Report from the Executive Director
Executive Director Izumi-Nitao reported the following:

  • Supplemental Report was due on 2/1/21:
    • 430 candidate committees and 257 noncandidate committees were required to file.
    • 342 (81%) candidate committees and 238 (94%) noncandidate committees filed on time.
    • 77 (18%) candidate committees and 14 (5%) noncandidate committees failed to file.
    • 3 (1%) candidate committees and 1 (1%) noncandidate committees filed late.
    • As of today, 39 candidate committees and 8 noncandidate committees have not filed.
  • Final Election Period Report was due on 12/3/20:
    • 10 candidate committees and 4 noncandidate committees still have not filed.
  • Termination of Ballot Issue Committees was due on 2/1/21:
    • All 3 ballot issue committees terminated.

With respect to prior reports, there are 1-5 candidate committees and 4 noncandidate committees that have not filed their reports.  They have been referred to the Attorney General – Civil Recoveries Division (“AG-CRD”).   Executive Director Izumi-Nitao reported that 14 candidates have been referred to AG-CRD.  The case against 4 noncandidate committees that was referred to AG-CRD was dismissed with prejudice and awaiting order.

*Report on the 2020 Virtual COGEL Conference
Commissioner Herbert shared that he appreciated the bluebooks and the summaries.  He explained that when things are in writing, you can always go back to it.  He also shared that he liked the format of this year’s conference as it was done virtually and would support it being held this way for future conferences.

Chair Luke agreed that bluebooks are very useful.  He also stated that while virtual conferences are helpful, it is better to be there in person to experience the back-and-forth dialogue between the participants.  He shared that in the past conferences, he received a lot of information from speaking with other participants from other states after the sessions.

Commissioner Markley agreed and said she learned a lot more when she attended the conference in Philadelphia.  She also said it was fascinating and an incredible educational experience being able to speak to the speakers both during the meeting and afterwards and finding out what other states were doing such as what worked for them and what was not working for them and why.

Vice Chair Lum stated this year’s virtual conference was tough for him as he had some connection issues.  He commented that he agreed with Chair Luke and Commissioner Markley that there is nothing like it in person.  He encouraged Commissioner Bonfiglio and Commissioner Herbert to attend the upcoming conferences in person, if possible.  Executive Director Izumi-Nitao stated that the next COGEL conference will be held on December 5-8, 2021 in Denver, Colorado.

Executive Director Izumi-Nitao shared that the networking series held on the last day of the conference was a great way to talk to other participants.  She wished it were held earlier.  Executive Director Izumi-Nitao further stated that she agreed that there is nothing like going to the conference in person and explained that the value of these conferences is to network and gauge for yourself where Hawaii stands in campaign finance.  She said if it were not for the COGEL conferences, she would not have the information she has now to deal with the consolidation bills that were discussed earlier.

EXECUTIVE SESSION
Chair Luke asked for a motion to convene in Executive Session to: (1) Consider and approve Executive Session minutes from the Commission meeting on 1/6/21; (2) Pursuant to HRS §92-5(a)(4), to consult with the Commission’s attorneys on questions and issues pertaining to the Commission’s powers, duties, privileges, immunities, and liabilities regarding McGee v. Campaign Spending Commission and Friends of Calvin Say; and (3) Pursuant to HRS §92-5(a)(4), to consult with the Commission’s attorneys on questions and issues pertaining to the Commission’s powers, duties, privileges, immunities, and liabilities regarding the imposition of fines.

Vice Chair Lum moved to convene in Executive Session for the aforementioned reasons.  Motion seconded by Commissioner Markley.  Motion carried (5-0).

Public Session reconvened at 1:28 p.m.

Commissioner Herbert moved to adjourn the meeting.  Motion seconded by Vice Chair Lum.  Motion carried (5-0).  Meeting adjourned at 1:28 p.m.

Next Meeting:
Scheduled for Wednesday, March 10, 2021 at 10 a.m.