Minutes for September 9, 2020 Meeting

Posted in Main, Minutes

Campaign Spending Commission
Zoom Video Conference
September 9, 2020
10:00 a.m.

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

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

Guests
Michael Golojuch, Jr., Nathan Okubo (Amemiya for Mayor), Becky Gardner, Lanakila Mangauil, Israel Silva, Everett Ohta, Esq. (OHA), Yama Kaholoaa, Annalise Arle (Ganaden for Hawaii), BN (member of the public), Sandy Ma (Common Cause), Blaze Lovell

Call to Order
Chair Luke called the meeting to order at 10:09 a.m.

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

Consideration and Approval of Minutes of Meeting on 8/12/20
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 8/12/20 meeting.  Motion seconded by Commissioner Herbert.  Motion carried (3-0).  (*Commissioner Markley excused)

Chair Luke asked for a motion to move out of order of business on the agenda.

Vice Chair Lum moved to move out of order of business on the agenda.  Motion seconded by Commissioner Herbert.  Motion carried (3-0).

New Business
*Docket No. 21-02 – In Re the Matter of Michael Golojuch, Jr. v. Amemiya for Mayor
Complainant Michael Golojuch, Jr. was present and stated that his complaint stems from the July 22, 2020 edition of the Midweek “pay-for-play” cover article which began on page 16 and ended on page 21.  The disclaimer was found on page 21.  The July 22, 2020 Midweek also included a full-page ad on page 3 with the required disclaimer.  Complainant Golojuch added that there was also an online version of the paid campaign ad article.

Complainant Golojuch asserted that there was a total of 5 violations–3 were in violation of HRS §11-391 and 2 in violation of HRS §11-392(a)(2).  He said he was not the only one who did not realize the Midweek article was a paid campaign ad until he found out about it through social media.

Complainant Golojuch stated that this all comes down to lack of transparency.  He explained that the intent of the campaign spending laws is for transparency to the general public, i.e., the potential voters, and all campaigns are to follow the same set of laws and rules so the public is not misled and the voters know who paid for the campaign ads they see.  He further explained that Midweek knew they were doing something outside of their normal procedure by selling their cover to a campaign for the first time in its 36-year history.  Complainant Golojuch argued that Respondent Amemiya for Mayor had a due diligence to the voters to make sure that they knew they were looking at a paid campaign ad and not a normal Midweek cover story.

Complainant Golojuch stated that the Commission needs to be concerned about this because without a disclaimer on every page of that ad, or series of ads, the public is not given the information they need to make an informed decision—in this case, the decision whether to read the paid advertisement or not.

Complainant Golojuch stated that Respondent Amemiya for Mayor ignored the alleged violations to the Midweek’s online version of the ad in their response.  He explained that there were no campaign disclaimers on any of the displayed ads on the website and you would not know that you were reading a campaign advertisement until you clicked through and read the entire ad.  Complainant Golojuch also stated that he disagreed with Respondent’s assertion in its response that they only needed one disclaimer in the July 22, 2020 Midweek article because it was a single purchase for a single issue.  He maintained that the disclaimer needed to appear on every paid campaign ad that appeared on Midweek—on the cover, page 3, page 16, and page 21.

Complainant Golojuch added that this Midweek edition landed in the public’s mailboxes with their ballots.  He argued that had this paid campaign story landed a week or two earlier, it would have allowed time for the facts to come out to the public that it was not an endorsement or a regular cover story that they were used to seeing over the past 36 years.  Complainant Golojuch requested the Commission to take his statements into advisement and get justice to the people.

Mr. Nathan Okubo, Treasurer for Respondent Amemiya for Mayor, was present and addressed the Commission.  He stated that there was a lot of transparency because Respondent Amemiya for Mayor filed electioneering and campaign spending reports at least a month before the Midweek advertisement was published.  He also stated that they complied with all the requirements to disclose the advertisement.  Mr. Okubo further explained that this concerned one advertisement paid through one invoice as reported on the Respondent Amemiya for Mayor’s electioneering communication filing.

With regards to HRS §11-391(a)(1), Mr. Okubo explained that the statute requires the disclaimer to have the name and address of the candidate committee and Respondent complied with that requirement.  He further argued against the assertion that Respondent violated HRS §11-391(a)(2) because that requirement in its expressed terms does not apply to candidate committees.  Nonetheless, Mr. Okubo stated that Respondent still placed a disclaimer in a prominent location which was at the end of the ad just like any other television or radio advertisement.  In addition, the disclaimer disclosed that it was published with the approval and authority of the candidate which was beyond the scope of what was required.  He added that even if the prominent location requirement applied to Respondent, he feels that it was complied with.  Mr. Okubo concluded that although he agreed with Complainant Golojuch about transparency, he disagreed that there was any violation committed by Respondent Amemiya for Mayor.

Commissioner Markley joined the meeting at 10:24 a.m.

Chair Luke asked if there were any questions.

Commissioner Herbert asked Mr. Okubo if the advertisement that was submitted to the Midweek included the cover picture.  Mr. Okubo responded yes, he said it was a package deal and they were given an opportunity to submit their materials.

Chair Luke asked for a motion to convene in Executive Session 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 ­­Docket No. 21-02 – In Re the Matter of Michael Golojuch, Jr. v. Amemiya for Mayor.

Vice Chair Lum moved to convene in Executive Session for the aforementioned reason.  Motion seconded by Commissioner Herbert.  Motion carried (4-0).

Before going into Executive Session, Executive Director Izumi-Nitao recommended that the Commission address Docket No. 21-03 – In Re the Matter of Dorothy Sakamoto v. Amemiya for Mayor along with ­­Docket No. 21-02 – In Re the Matter of Michael Golojuch, Jr. v. Amemiya for Mayor because it alleged the same issue.  Executive Director Izumi-Nitao stated that Complainant Sakamoto’s complaint was provided to the Commissioners.  Commission staff had reached out to Complainant Dorothy Sakamoto days prior about attending this meeting, but she did not respond and was not present.

Chair Luke moved to amend the motion to convene in Executive Session 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 ­­Docket No. 21-02 – In Re the Matter of Michael Golojuch, Jr. v. Amemiya for Mayor and Docket No. 21-03 – In Re the Matter of Dorothy Sakamoto v. Amemiya for Mayor.  Motion seconded by Vice Chair Lum.

General Counsel Kam asked if Mr. Okubo had any comments about Docket No. 21-03 before the Commission goes into Executive Session.  Mr. Okubo responded that he stood by his earlier comments and he had nothing further to add.

Amended motion carried (4-0).

Public Session reconvened at 11:13 a.m.

Chair Luke asked if there was any questions or comments for further discussion.  There was none.

Commissioner Herbert moved to dismiss the complaint because the ad was in compliance with the applicable laws.  Commissioner Markley seconded.  Motion carried (4-0).

*Docket No. 21-03 – In Re the Matter of Dorothy Sakamoto v. Amemiya for Mayor
Chair Luke stated that although Complainant Dorothy Sakamoto was not present, the Commission had the written complaint submitted by Complainant Sakamoto.  He asked Mr. Okubo if he would like to comment.  Mr. Okubo responded he would not at this time.

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

Vice Chair Lum moved to dismiss the complaint because there was proper disclosure.  Commissioner Herbert seconded.  Motion carried (4-0).

*Docket No. 21-06 – In Re the Matter of Pua Ishibashi v. Lanakila Mangauil
Executive Director Izumi-Nitao stated that Complainant Pua Ishibashi was not present but he submitted testimony right before the meeting.  It was submitted late but was provided to the Commissioners.

Chair Luke read Complainant Ishibashi’s testimony dated 9/9/20.

Mr. Israel Silva, Lanakila for OHA’s campaign chairperson and treasurer, was present and introduced himself and Respondent Lanakila Mangauil who was also present.

Mr. Silva stated that Complainant Ishibashi’s complaint is entirely inaccurate and without merit.  He explained that Lanakila for OHA and Respondent Mangauil have not participated in any unlawful conduct or violated any campaign finance laws or rules.  He said they have honestly and accurately reported all campaign contributions and expenditures with the Commission and filed all required financial disclosures with the ethics commission.

Mr. Silva stated that Complainant Ishibashi alleged that the E Ho’okanaka video produced by OHA that was recorded and published in December 2019 should have been treated as a contribution.  However, the video pre-dated Respondent Mangauil’s filing and announcing of his candidacy for OHA, the formation of his candidate committee, and any other campaign activities.

Mr. Silva argued that Complainant Ishibashi’s claim that Respondent Mangauil violated HRS §11-341 is false and has no standing.  He explained that Lanakila for OHA did not pay for any advertisements and has made no electioneering communications.

Mr. Silva described the video as part of a series of videos sharing the stories of young ‘oiwi leaders who are making positive impacts in their communities and those who are taking a fresh approach to addressing the issues and challenges facing Hawaii.  Mr. Silva stated that the content of the video and social media posts did not give any appearance or representation that OHA endorsed Respondent Mangauil as a candidate for OHA.

Mr. Silva added that Respondent Mangauil received no compensation for this video recorded interview and that no coordinated activity existed between Lanakila for OHA, Respondent Mangauil, and OHA.  Mr. Silva further stated that Respondent Mangauil conducted many cultural workshops locally and abroad and that Complainant Ishibashi’s statement that OHA sent Respondent Mangauil throughout the island chain is false.

In response to Complainant Ishibashi’s testimony submitted just before the meeting, Mr. Silva commented that the Hawaiian Cultural Center of Hamakua has not received any contributions or funding from OHA.  He concluded that Complainant Ishibashi’s complaint is entirely without merit and he asked that the Commission summarily dismiss it.

Mr. Everett Ohta, Esq., on behalf of OHA, was present and stated that OHA stands by its written response that was submitted to the Commission.

Chair Luke asked if there was any questions or comments.

Vice Chair Lum asked Mr. Ohta to summarize OHA’s position.  Mr. Ohta stated that OHA’s position largely reflects that of Respondent Mangauil’s position in that there was no campaign spending that occurred in this case.  The E’ Hookanaka video was produced as a series of 6 videos and accompanying articles that featured emerging native Hawaiian leaders.  As it was stated earlier, the video was published in December 2019—prior to any announcement of Respondent Mangauil’s intention to run as a candidate.  Mr. Ohta further explained that workshops that were identified in the complaint took place between October 2019 and December 2019.  He emphasized that none of the videos, workshops, or any accompanying articles referenced Respondent Mangauil’s intention to run as a candidate or his candidacy for elected office. 

Chair Luke asked for a motion to convene in Executive Session 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 Docket No. 21-06 – In Re the Matter of Pua Ishibashi v. Lanakila Mangauil

Vice Chair Lum moved to convene in Executive Session for the aforementioned reason.  Motion seconded by Commissioner Herbert.  Motion carried (4-0).

Public Session reconvened at 11:46 a.m.

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

Vice Chair Lum moved to dismiss the complaint because there appears to have been no violation.  He explained that Respondent Mangauil was not a candidate at the time the video was made, and the video had no content of his candidacy.  In fact, the video was about Hawaiian leadership and not Respondent Mangauil’s campaign.  Commissioner Markley seconded.  Motion carried (4-0).

*Docket No. 21-07 – In Re the Matter of William Yama Kaholoaa, Sr. v. Walter Ritte
Complainant Yama Kaholoaa, Sr. was present but due to technical difficulties, the Commission could not hear Complainant Kaholoaa.  Respondent Walter Ritte was not present.

Commissioner Herbert recommended that the Commission move on to the next matter and address this matter once Complainant Kaholoaa’s technical difficulties were resolved.  The Commission agreed.

*Docket No. 21-10 – In Re the Matter of William Espero, Jason Espero, and Friends of William Espero
Executive Director Izumi-Nitao reported that a complaint by the Executive Director had been filed against William Espero, Jason Espero, and Friends of William Espero for the late filing of the Statement of Information for Electioneering Communications.

In the Organizational Report filed with the Commission, Respondent William Espero is listed as the candidate and Respondent Jason Espero is listed as the treasurer of the candidate committee called Friends of William Espero.

Pursuant to HRS §11-341, Respondents were required to file the Statement of Information for Electioneering Communications (“Statement”) within 24 hours of executing a contract for an electioneering communication as defined under HRS §11-341.

On 8/5/20, Respondents filed a Statement reporting a contract with Pinoy Power/KPRP Radio executed on 8/3/20 for $261.78 and a contract with KNDI Radio executed on 8/3/20 for $445.03.  Respondents had previously exceeded the $2,000 expenditure requirement.

On 8/6/20, Commission staff notified Respondents via first class mail of the late filing of the Statement and that a fine of $500 would be imposed pursuant to HRS §11-410.  Respondents did not pay the fine amount.

On 8/11/20, Respondent Espero phoned Commission staff and requested a Conciliation Agreement.  Commission staff informed Respondent Espero that he was not eligible for a Conciliation Agreement because Respondents previously failed to timely file two prior Statements in the 2018 election.

On 8/20/20, Commission staff sent Respondents a copy of the complaint and set the matter on the 9/9/20 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 $500, 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 order 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 §11-410 within two (2) weeks of receipt of this order.

Respondent William Espero was present and addressed the Commission.  He said he is not disputing the fact that the statement was filed late, and that he had filed electioneering communication statements late before.  He stated that the law is such that it is cumulative, and he believes it should start all over again in every election cycle.  Respondent Espero asked for some relief because there was no malice or ill intent.  He explained that the form was submitted only about 12-15 hours late.  He reasoned that in the heat of an election, it was easy to have something like this drop.  While he understood that the statements should have been filed on time for transparency, he felt that $500 was excessive and asked the Commission to lower the fine especially since his electioneering communication expenses only totaled to about $706.

Commissioner Herbert asked why the fine amount was written as $250 on paragraph 9 on page 6 of the complaint.  Executive Director Izumi-Nitao explained that it was a typo and should have said $500 as correctly written on item B under relief requested.  She added that all communications with the Respondents have described the fine as $500. Respondent Espero acknowledged that he understood the fine to be $500.

Commissioner Markley asked if this was Respondent Espero’s first violation and why the fine was so high.  Chair Luke stated that there were two other instances of this violation in the 2018 election and Respondents were given conciliation agreements then.  He explained that that was the reason why Respondents were told they were not eligible this time.  The Commission’s practice has been that after two violations, you are not afforded another conciliation agreement for the same violation.  Executive Director Izumi-Nitao added that staff is following the Commission’s standard fine guidelines and the staff has no ability to change this.

Chair Luke asked how many electioneering communication statements were filed for this election so far.  Associate Director Baldomero stated that for the primary election, there were over 700 electioneering communication statements.  Chair Luke asked if majority of the statements were filed on time or if there were many late filers who resolved the matter by paying the fine.  Executive Director Izumi-Nitao stated that there seems to be more compliance this year because there were a lot of violations in the 2018 election.  Commissioner Herbert commented that there were many conciliation agreements involving electioneering communications in this meeting as well as the last month’s meeting.

Executive Director Izumi-Nitao stated that Commission staff has for the last few legislative sessions been trying to change the electioneering communications law, but unfortunately, it has not been passed and they are therefore stuck enforcing the law the way it is.

Deputy Attorney General Park asked if the aggregate of more than $2,000 is for one election year.  General Counsel Kam responded that it is for one calendar year.

Commissioner Herbert asked Commission staff if there have been similar situations which allowed for some kind of leniency for this violation.  Executive Director Izumi-Nitao responded that she was not aware of any mitigating circumstances with respect to electioneering communication violations and cautioned that allowing exceptions may create a new standard deviating from what the Commission has been doing.  She stressed that the Commission had wanted conciliation agreements to accrue rather than clear for the next election period.

Respondent Espero insisted that it should be reset every election year due to the lack of change in the law.  Chair Luke argued that the Commission often sees the same names of people who continually violate the rules.  Whether it was intentional or not, he thinks the rule limiting 2 conciliation agreements is a valid one.

Vice Chair Lum asked whether payment plan could be an option.  Respondent Espero responded that that he would pay the full amount if he is fined the full amount.

Chair Luke stated that he would like the Commission to review the standard fine guidelines after the 2020 election.  Executive Director Izumi-Nitao agreed that this would be more prudent rather than changing the rules midway through an election.

Chair Luke 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 Herbert.  Motion carried (4-0).

*Docket No. 21-08 – 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 1B Preliminary Primary Report.

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 1B Preliminary Primary Report for the period covering 4/26/20 through 6/30/20 by 11:59 p.m. Hawaii standard time on 7/9/20.  Respondents did not file this report by the deadline.

On 7/10/20, Commission staff notified Respondents via first class mail of their failure to file this report and that a fine would be imposed.

On 7/23/20, Respondents filed the report.

On 7/23/20, Commission staff notified Respondents via first class mail that a fine of $793.75 would be assessed for the late filing of the report.  Respondents did not pay the late report fine.

On 8/12/20, Respondent McDonald informed Commission staff that he would like to contest the fine.

On 8/17/20, Commission staff sent Respondents a copy of the complaint and set the matter on the 9/9/20 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 $793.75, 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 order 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.

Commissioner Herbert asked how the fine amount was calculated.  Associate Director Baldomero responded that the fine amount is 25% of the total contributions reported in the report.

Vice Chair Lum asked what the last communication from Respondent McDonald was.  Associate Director Baldomero responded that Respondent McDonald did not submit any written response to the complaint but he spoke to Respondent McDonald on a number of occasions and he relayed that he wanted the fine waived because he cannot afford it.

Commissioner Herbert 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.  Motion carried (4-0).

*Docket No. 21-07 – In Re the Matter of William Yama Kaholoaa, Sr. v. Walter Ritte
Complainant Yama Kaholoaa was able to resolve the technical issues and addressed the Commission.  He stated that Respondent Ritte violated HRS §11-391 and a fine of $25 per sign should be imposed.  He explained that the signs have been posted prior to 8/1/20, around mid-July 2020.  He said that he submitted proof of these signs and Respondent Ritte also admitted that the signs posted were illegal under the statute.

Chair Luke stated that while Respondent Ritte is not present, he submitted a written response.

Commissioner Herbert asked if the disclaimer requirement applied to all signs including those that may have been hand-made.  General Counsel Kam responded that the ads had to have been paid for.  Therefore, if it was free, then the disclaimer requirement does not apply.

Vice Chair Lum asked General Counsel Kam if there were any violations committed.  General Counsel Kam stated that there were 5 signs at issue.  According to Respondent Ritte’s response, 4 of them were hand-made by family members and 1 was paid for by Respondent Ritte’s committee.  He stated that the sign that was paid for by Respondent Ritte’s committee is a violation, but those that were hand-made by family members are not because they did not incur any cost.

General Counsel Kam 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 $25, 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 accept staff’s recommendation and assess an administrative fine of $25.  Motion seconded by Commissioner Markley.  Motion carried (4-0).

Chair Luke asked if there were any other people present on the Commission’s agenda.  Becky Gardner responded that she was present.  Executive Director Izumi-Nitao commented that her matter concerns a conciliation agreement.  Chair Luke then proceeded to address the conciliation agreements under New Business.

Executive Director Izumi-Nitao stated that the fifteen (15) 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. 21-16 – In Re the Matter of Rebecca Shute Villegas for Hawaii County Council District 7
Executive Director Izumi-Nitao explained that this proposed conciliation agreement concerns the late filing of the Statement of Information for Electioneering Communications and requests that they assess a reduced fine from $750 to $250.  Chair Luke asked if there were any comments or questions.

Commissioner Markley moved to approve the proposed conciliation agreement.  Motion seconded by Vice Chair Lum.  Motion carried (4-0).

*Proposed Conciliation Agreement No. 21-17 – In Re the Matter of Committee to Elect Julia Allen
Executive Director Izumi-Nitao explained that this proposed conciliation agreement concerns the late filing of the Statement of Information for Electioneering Communications and requests that they assess a reduced fine from $250 to $83.33.  Chair Luke asked if there were any comments or questions.

Commissioner Markley moved to approve the proposed conciliation agreement.  Motion seconded by Commissioner Herbert.  Motion carried (4-0).

*Proposed Conciliation Agreement No. 21-18 – In Re the Matter of Jaerick-Lee Keali’i Medeiros-Garcia
Executive Director Izumi-Nitao explained that this proposed conciliation agreement concerns the late filing of the 2nd Preliminary Primary Report and requests that they assess a reduced fine from $300 to $100.  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 (4-0).

*Proposed Conciliation Agreement No. 21-19 – In Re the Matter of Friends of Colehour Bondera
Executive Director Izumi-Nitao explained that this proposed conciliation agreement concerns the late filing of the 2nd Preliminary Primary Report and requests that they assess a reduced fine from $1,500 to $500.  She added that Colehour Bondera submitted a letter dated 8/14/20 to the Commission requesting for the conciliation agreement.  Chair Luke asked if there were any comments or questions.

Commissioner Herbert moved to approve the proposed conciliation agreement.  Motion seconded by Commissioner Markley.  Motion carried (4-0).

*Proposed Conciliation Agreement No. 21-20 – In Re the Matter of Aloha Aina Oiaio
Executive Director Izumi-Nitao explained that this proposed conciliation agreement concerns the late filing of the Preliminary Primary Report and requests that they assess a reduced fine from $300 to $100.  Chair Luke asked if there were any comments or questions.

Commissioner Herbert moved to approve the proposed conciliation agreement.  Motion seconded by Commissioner Markley.  Motion carried (4-0).

*Proposed Conciliation Agreement No. 21-21 – In Re the Matter of Velasco Campaign 2018
Executive Director Izumi-Nitao explained that this proposed conciliation agreement concerns the late filing of the Supplemental Report and requests that they assess a reduced fine from $200 to $100.  Chair Luke asked if there were any comments or questions.

Commissioner Herbert moved to approve the proposed conciliation agreement.  Motion seconded by Commissioner Markley.  Motion carried (4-0).

*Proposed Conciliation Agreement No. 21-22 – In Re the Matter of Friends of Neil Azevedo
Executive Director Izumi-Nitao explained that this proposed conciliation agreement concerns the late filing of the Statement of Information for Electioneering Communications and requests that they assess a reduced fine from $1,750 to $583.33.  Chair Luke asked if there were any comments or questions.

Commissioner Herbert moved to approve the proposed conciliation agreement.  Motion seconded by Commissioner Markley.  Motion carried (4-0).

*Proposed Conciliation Agreement No. 21-23 – In Re the Matter of Friends of Jay Ishibashi
Executive Director Izumi-Nitao explained that this proposed conciliation agreement concerns the late filing of the Statement of Information for Electioneering Communications and requests that they assess a reduced fine from $1,500 to $500.  Chair Luke asked if there were any comments or questions.

Commissioner Herbert moved to approve the proposed conciliation agreement.  Motion seconded by Commissioner Markley.  Motion carried (4-0).

*Proposed Conciliation Agreement No. 21-24 – In Re the Matter of Aloha Aina Oiaio
Executive Director Izumi-Nitao explained that this proposed conciliation agreement concerns the late filing of the Statement of Information for Electioneering Communications and requests that they assess a reduced fine from $500 to $166.67.  Chair Luke asked if there were any comments or questions.

Commissioner Herbert moved to approve the proposed conciliation agreement.  Motion seconded by Commissioner Markley.  Motion carried (4-0).

*Proposed Conciliation Agreement No. 21-25 – In Re the Matter of Friends of Mokihano Maldonado
Executive Director Izumi-Nitao explained that this proposed conciliation agreement concerns the late filing of the Statement of Information for Electioneering Communications and requests that they assess a reduced fine from $500 to $166.67.  Chair Luke asked if there were any comments or questions.

Commissioner Herbert moved to approve the proposed conciliation agreement.  Motion seconded by Commissioner Markley.  Motion carried (4-0).

*Proposed Conciliation Agreement No. 21-26 – In Re the Matter of Friends of David Matsushita
Executive Director Izumi-Nitao explained that this proposed conciliation agreement concerns the late filing of the Supplemental Report and requests that they assess a reduced fine from $200 to $66.67.  Chair Luke asked if there were any comments or questions.

Commissioner Herbert moved to approve the proposed conciliation agreement.  Motion seconded by Commissioner Markley.  Motion carried (4-0).

*Proposed Conciliation Agreement No. 21-27 – In Re the Matter of Kanealii-Kleinfelder Committee
Executive Director Izumi-Nitao explained that this proposed conciliation agreement concerns the late filing of the Statement of Information for Electioneering Communications and requests that they assess a reduced fine from $250 to $83.33.  Chair Luke asked if there were any comments or questions.

Commissioner Herbert moved to approve the proposed conciliation agreement.  Motion seconded by Commissioner Markley.  Motion carried (4-0).

*Proposed Conciliation Agreement No. 21-28 – In Re the Matter of Friends of Becky Gardner
Executive Director Izumi-Nitao explained that this proposed conciliation agreement concerns the late filing of the Statement of Information for Electioneering Communications and requests that they assess a reduced fine from $250 to $83.33.

Ms. Becky Gardner was present and stated that the electioneering communication was for a Facebook boost that was ordered on 8/6/20 right before the primary election.  She explained that her campaign chairperson notified her campaign treasurer to submit paperwork for the electioneering communication via text.  However, the text message did not get through to her treasurer because she did not update her iPhone and all of her text messages were suspended until the update was done.  Ms. Gardner explained that due to the unanticipated glitch with the text messages, the statement was not filed on time.

Ms. Gardner also shared the recent changes with how Facebook does political ads.  She explained that Facebook does not take money out of the campaign’s account for the ads until certain amount has been incurred and the campaign has no idea when that will be until it happens.  It is also on a “rolling basis” which makes it hard to know when an ad will start running due to their approval process.  As a result, campaigns are basically just guessing the amount and date ranges in the electioneering communication statements because that is all that they could do with the way Facebook’s system is set up.

Chair Luke thanked Ms. Gardner for staying online for the meeting.  He commented that the Commission had tried to update the law but explained that it needs to enforce the law as it is currently written.

Commissioner Herbert asked if the legislation requests include specific examples of the problems that the Commission has faced with electioneering communication reporting.  General Counsel Kam responded no, but the reason for the request is always provided.  Commissioner Herbert asked if he provides them the number of violations.  Executive Director Izumi-Nitao responded that staff had provided that information in the past.

Chair Luke asked if there were any comments or questions.

Commissioner Herbert moved to approve the proposed conciliation agreement.  Motion seconded by Commissioner Markley.  Motion carried (4-0).

*Proposed Conciliation Agreement No. 21-29 – In Re the Matter of Team Hana Hou Harry
Executive Director Izumi-Nitao explained that this proposed conciliation agreement concerns the late filing of the Late Contributions Report and requests that they assess a reduced fine from $500 to $166.67.  Chair Luke asked if there were any comments or questions.

Commissioner Herbert moved to approve the proposed conciliation agreement.  Motion seconded by Commissioner Markley.  Motion carried (4-0).

*Proposed Conciliation Agreement No. 21-30 – In Re the Matter of Friends of Aloha Aina
Executive Director Izumi-Nitao explained that this proposed conciliation agreement concerns the late filing of the 1B Preliminary Primary Report and requests that they assess a reduced fine from $200 to $66.67.  Chair Luke asked if there were any comments or questions.

Commissioner Herbert moved to approve the proposed conciliation agreement.  Motion seconded by Commissioner Markley.  Motion carried (4-0).

*Proposed Conciliation Agreement No. 21-31 – In Re the Matter of Friends of Aloha Aina
Executive Director Izumi-Nitao explained that this proposed conciliation agreement concerns the late filing of the 2nd Preliminary Primary Report and requests that they assess a reduced fine from $300 to $150.  Chair Luke asked if there were any comments or questions.

Commissioner Herbert moved to approve the proposed conciliation agreement.  Motion seconded by Commissioner Markley.  Motion carried (4-0).

Break at 12:57 p.m.

*Docket No. 21-09 – In Re the Matter of Justin Hughey and Friends of Justin for Education
Executive Director Izumi-Nitao reported that a complaint by the Executive Director had been filed against Justin Hughey and Friends of Justin for Education for the late filing of the Supplemental Report.

In the Organizational Report filed with the Commission, Respondent Hughey is listed as the candidate and treasurer of the candidate committee called Friends of Justin for Education.

Pursuant to HRS §11-334(b), Respondents were required to file the Supplemental Report for the period covering 1/1/20 through 6/30/20 by 11:59 p.m. Hawaii standard time on 7/31/20.  Respondents did not file this report by the deadline.

On 8/3/20, Commission staff notified Respondents via first class mail of their failure to file this report and that a fine would be imposed.

On 8/6/20, Respondents filed the report.

On 8/7/20, Commission staff notified Respondents via first class mail that a fine of $200 would be assessed for the late filing of the report.  Respondents did not pay the late report fine.

On 8/13/20, Respondent Hughey called the Commission to request a fine reduction.  On 8/14/20, Commission staff informed Respondent Hughey that he was not eligible for a Conciliation Agreement because he had several prior late reports.  Respondent Hughey said that he would like to contest the fine because he is not able to pay the fine.

On 8/18/20, Commission staff sent Respondents a copy of the complaint and set the matter on the 9/9/20 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 $200, 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 order 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 Hughey and Ms. Linda Puppolo, who helps Respondent Hughey with his campaign spending reports but is not a named officer in the organizational report, submitted written responses which were provided to the Commissioners.

Commissioner Herbert asked how many prior late report violations are involved in this case.  Elections Assistant Vendiola responded that there were 4 prior late report violations.

Commissioner Herbert 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.  Motion carried (4-0).

*Docket No. 21-11 – In Re the Matter of Ernesto Ganaden, Thane Perish, and Ganaden for Hawaii
Executive Director Izumi-Nitao reported that a complaint by the Executive Director had been filed against Ernesto Ganaden, Thane Perish, and Ganaden for Hawaii for the late filing of the 2nd Preliminary Primary Report.

In the Organizational Report filed with the Commission, Respondent Ganaden is listed as the candidate and Respondent Perish is the treasurer of the candidate committee called Ganaden for Hawaii.

Pursuant to HRS §11-334(a), Respondents were required to file the 2nd Preliminary Primary Report for the period covering 7/1/20 through 7/24/20 by 11:59 p.m. Hawaii standard time on 7/29/20.  Respondents did not file this report by the deadline.

On 7/30/20, Commission staff notified Respondents via first class mail of their failure to file this report and that a fine would be imposed.

On 7/30/20, Respondents filed the report.

On 7/30/20, Commission staff notified Respondents via first class mail that a fine of $300 would be assessed for the late filing of the report.  Respondents did not pay the late report fine.

On 8/14/20, Respondent Perish called Commission staff to request a Conciliation Agreement and left a voicemail.  Commission staff returned the call and left a message informing Respondents that they were not eligible for a Conciliation Agreement due to the late filing of two prior reports.

On 8/25/20, Commission staff called Respondents to inquire about the fine payment and were informed that Respondents would like to contest the fine.

On 8/25/20, Commission staff sent Respondents a copy of the complaint and set the matter on the 9/9/20 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, 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 order 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 the Respondents submitted written testimony dated 9/8/20 which was provided to the Commissioners.

Commissioner Herbert 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.  Motion carried (4-0).

*Docket No. 21-12 – In Re the Matter of Eric Ryan and HIRA Action
General Counsel Kam reported that a complaint by the Executive Director had been filed against Eric Ryan and HIRA Action for a prohibited expenditure in violation of HRS §§ 11-302 and 11-410.

In the Organizational Report filed with the Commission, Respondent Ryan is listed as the chairperson and treasurer of the noncandidate committee called HIRA Action, an independent expenditure committee.

In Schedule B2 of the Preliminary Primary Report filed with the Commission, Respondents reported a $500 expenditure made on May 1, 2020 to Honolulu Police Department (“HPD”) for “bail money for unlawful arrest of HIRA protester.”

In Schedule C of the Preliminary Primary Report filed with the Commission, Respondents reported an “Other Receipt” in the amount of $500 on May 5, 2020 from Kai Lorinc for “refund of bail for false HPD arrest of HIRA protester.”

On 8/6/20, Commission staff sent Respondents a Notice of Fine for Prohibited Expenditure informing Respondents that the $500 expenditure made to HPD was a prohibited expense.  The letter also informed Respondents that a fine of $250 would be assessed and that Respondent Ryan must use personal funds to reimburse Respondent $500.  Respondents did not provide a response to the 8/6/20 letter.

On 9/3/20, Commission staff sent Respondents a copy of the complaint and set the matter on the 9/9/20 Commission agenda to the address listed on Respondents’ Organizational Report.

Under HRS §11-302, a noncandidate committee has the purpose of “making expenditures or incurring financial obligations to influence the nomination for election, or the election, of any candidate to office, or for or against any question or issue on the ballot.”

Under HRS §11-302, an expenditure is “any purchase or transfer of money or anything of value” for the purpose of “influencing the nomination for election, or the election, of any person seeking nomination for election or election to office” or for the “influencing the outcome of any question or issue that has been certified to appear on the ballot at the next applicable election.”

Respondents’ use of committee funds to pay bail money was not for the purpose of influencing the nomination for election or the election to office of any person, nor for the purpose of supporting or opposing a ballot issue.  The $500 expenditure made to HPD was thus a prohibited expenditure.

General Counsel Kam 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 $250 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.

Commissioner Herbert 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.  Motion carried (4-0).

Old Business – None

Report from the Executive Director
*Report on Compliance of Filing Timely Disclosure Reports
Executive Director Izumi-Nitao reported the following:

  • Final Primary Report was due on 8/28/20:
    • 264 candidate committees were expected to file
    • 216 noncandidate committees were expected to file
    • 244 (93%) candidate committees filed on time
    • 192 (91%) noncandidate committees filed on time
    • 10 (4%) candidate committees failed to file on time
    • 17 (8%) noncandidate committees failed to file on time
    • 9 (3%) candidate committees filed late
    • 3 (1%) noncandidate committees filed late
    • As of today, 5 candidate committees and 10 noncandidate committees still have not filed
  • Expenditures of Public Funds Report was due on 8/28/20
    • 8 candidate committees were expected to file
    • 8 (100%) candidate committees filed on time
  • Supplemental Report was due on 7/31/20
    • 13 candidate committees have not filed yet

With respect to prior reports, there are 1-3 candidate committees and 4 noncandidate committees that have not filed their reports.  All have been referred to the Attorney General – Civil Recoveries Division (“AG-CRD”).

Ms. Sandy Ma of Common Cause asked if this information was listed somewhere.  Executive Director Izumi-Nitao responded that the names of candidates and noncandidate committees that have failed to file reports are published on the Commission’s website as required by law.

*Update on the Status of the Appointment of New Commissioners
Executive Director Izumi-Nitao reported that no new updates were received from Sharon Ibarra, Boards & Commissions.  Ms. Ibarra was also invited to this meeting but could not attend.

*Update on the 2020 Primary Election
Executive Director Izumi-Nitao reported that on 8/17/20, memorandums were mailed to provide guidance to 129 candidates who were unsuccessful in the primary election and 35 candidates who won outright as a result of the primary election.

*Discussion of the 2020 State and County Ballot Measures
Associate Director Baldomero reported the following:

  • State of Hawaii: No Constitutional amendment questions
  • City & County of Honolulu – 4 ballot measures
  • County of Hawaii – 16 ballot measures
  • County of Maui – 7 ballot measures
  • County of Kauai – 6 ballot measures

Associate Director Baldomero further reported that there are 2 ballot issue committees registered with the Commission concerning Maui ballot measures.

*Discussion of the 2020 Special Election
Associate Director Baldomero reported that 2 candidates are running in the 2020 Special Election for the State Senate, District 16 seat to replace Senator Breene Harimoto:  Senator Bennette Misalucha (appointed interim) representing the Democratic Party and Kelly Kitashima representing the Republican Party.  He stated that this election will take place on 11/3/20 along with the general election.

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 8/12/20; and (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.

Commissioner Herbert moved to convene in Executive Session for the aforementioned reasons.  Motion seconded by Commissioner Markley.  Motion carried (4-0).

Public Session reconvened at 1:32 p.m.

Vice Chair Lum moved to adjourn the meeting.  Motion seconded by Commissioner Herbert.  Motion carried (4-0).  Meeting adjourned at 1:35 p.m.

Next Meeting:
Scheduled for Wednesday, October 14, 2020 at 10 a.m.