Campaign Spending Commission

Campaign Spending Commission Meeting
Leiopapa A Kamehameha Building, Room 204
March 9, 2011
10:30 a.m.

Commissioners Present:
Chair Paul Kuramoto, Vice-Chair Steven Olbrich, Gino Gabrio, Dean Robb, Michael Weaver

Staff Present:
Kristin Izumi-Nitao, Tony Baldomero, Gary Kam, Ellen Kojima

Deputy Attorney General Robyn Chun

Call to Order:
Meeting convened at 10:30 a.m. with Chair Kuramoto presiding.

Consideration of Minutes:
February 9, 2011 minutes corrections – Pages 1 and 4, add Vice Chair Olbrich’s name and to note that Commissioner Gabrio recused from the discussion and decision regarding the Chun Wah Kam Noodle Factory proposed conciliation agreement (page 4).

Commissioner Gabrio moved to approve the minutes of the January 12, 2011 as corrected.  Motion seconded by Commissioner Weaver.  Motion carried unanimously.

Old Business:
None

New Business:
Executive Director Izumi-Nitao noted that the following proposed conciliation agreements are the result of investigations initiated by herself pursuant to HRS section 11-314(7) to determine whether there had been violations of the Hawaii campaign spending laws.

She further stated that the Respondents in each matter had been notified of the meeting and received a copy of the proposed conciliation agreement that commissioners would be considering, and waived the opportunity to explain or otherwise respond to the notice of violation.

She then recommended that the Commission make a preliminary determination of probable cause that a violation has been committed for the following proposed conciliation agreements and that the Commission approve the settlement amounts which have been discussed with the Respondents who, have by way of the agreement, waived findings of fact and conclusions of law as well as any further proceedings including a contested case hearing to remedy or correct the violation.

Proposed Conciliation Agreement 11-06 – In Re the Matter of Friends of Rowena Akana
Proposed Conciliation Agreement is offered to settle a claim regarding the late filing of the Supplemental Report in violation of Hawaii Revised Statutes (“HRS”) sections 11-334 and 11-340.

Respondent is the candidate committee for Rowena Akana, a candidate for the Office of Hawaiian Affairs, a four-year office.  The Supplemental Report was due no later than 11:59 p.m. on January 31, 2011.  Respondent’s report was filed on February 9, 2011.

Commissioner Gabrio moved to find that probable cause exists that Respondent committed a violation.  Motion seconded by Commissioner Weaver.  Motion carried unanimously.

Respondent agrees to a fine of $70.  Executive Director Izumi-Nitao recommends acceptance of proposed Conciliation Agreement 11-06 with an assessed fine of $70.

Commissioner Gabrio moved to accept proposed Conciliation Agreement 11-06.  Motion seconded by Commissioner Robb.  Motion carried.  (aye-Kuramoto, Gabrio, Robb, Weaver / no-Olbrich)

Proposed Conciliation Agreement 11-07 – In Re the Matter of Friends of Roland Sagum
Proposed Conciliation Agreement is offered to settle a claim regarding the late filing of the Supplemental Report in violation of HRS sections 11-334 and 11-340.

Respondent is the candidate committee for Roland Sagum, a candidate for the State House of Representatives, a two-year office.  The Supplemental Report was due no later than 11:59 p.m. on January 31, 2011.  Respondent’s report was filed on February 9, 2011.

Commissioner Gabrio moved to make a preliminary determination that probable cause of a violation exists.  Motion seconded by Commissioner Robb.  Motion carried unanimously.

Respondent agrees to a fine of $125.  Executive Director Izumi-Nitao recommends acceptance of proposed Conciliation Agreement 11-07 with an assessed fine of $125.

Commissioner Weaver moved to accept proposed Conciliation Agreement 11-07.  Motion seconded by Commissioner Robb.  Motion carried.  (aye-Kuramoto, Gabrio, Robb, Weaver / no-Olbrich)

Proposed Conciliation Agreement 11-08 – In Re the Matter of Friends of Michael Doyle
Proposed Conciliation Agreement is offered to settle a claim regarding the late filing of the Supplemental Report in violation of HRS sections 11-334 and 11-340.

Respondent is the candidate committee for Michael Doyle a candidate for the State House of Representatives, a two-year office.  The Supplemental Report was due no later than 11:59 p.m. on January 31, 2011.  Respondent’s report was filed on February 8, 2011.

Commissioner Robb moved to make a preliminary determination that probable cause of a violation exists.  Motion seconded by Commissioner Gabrio.  Motion carried unanimously.

Respondent agrees to a fine of $70.  Executive Director Izumi-Nitao recommends acceptance of proposed Conciliation Agreement 11-08 with an assessed fine of $70.

Commissioner Gabrio moved to accept proposed Conciliation Agreement 11-08.  Motion seconded by Commissioner Robb.  Motion carried unanimously.

Proposed Conciliation Agreement 11-09 – In Re the matter of Friends of Chris Lewis
Proposed Conciliation Agreement is offered to settle a claim regarding the late filing of the Final Special Election Period Report and and Supplemental Report in violation of HRS sections 11-334 and 11-340.

Respondent is the candidate committee for Chris Lewis, a candidate for the Honolulu City Council, District 1.  The  reports were both due no later than 11:59 p.m. on January 31, 2011..  Respondent’s reports were filed on February 14, 2011.

Commissioner Gabrio moved to make a preliminary determination that probable cause of a violation exists.  Motion seconded by Commissioner Robb.  Motion carried unanimously.

Respondent agrees to a fine of $135.  Executive Director Izumi-Nitao recommends acceptance of proposed Conciliation Agreement 11-09 with an assessed fine of $135.

Commissioner Weaver moved to accept proposed Conciliation Agreement 11-09.  Motion seconded by Commissioner Robb.  Motion carried unanimously.

Proposed Conciliation Agreement 11-10 – In Re the Matter of Friends of Guy Enriques
Proposed Conciliation Agreement is offered to settle a claim regarding the late filing of the Supplemental Report in violation of HRS sections 11-334 and 11-340.

Respondent is the candidate committee for Guy Enriques, a candidate for the Hawaii County Council, a two-year office.  The Supplemental Report was due no later than 11:59 p.m. on January 31, 2011.  Respondent’s report was filed on February 9, 2011.

Commissioner Robb moved to make a preliminary determination that probable cause of a violation exists.  Motion seconded by Commissioner Weaver.  Motion carried unanimously.

Respondent agrees to a fine of $70.  Executive Director Izumi-Nitao recommends acceptance of proposed Conciliation Agreement 11-10 with an assessed fine of $70.

Commissioner Weaver moved to accept proposed Conciliation Agreement 11-10.  Motion seconded by Commissioner Gabrio.  Motion carried unanimously.

To shorten the process further, Commissioner Gabrio suggested the following statement: In accordance with the written conciliation agreements presented to the Commission it is recommended that you make a preliminary determination that probable cause of a violation exists.

Docket No. 11-01 – In Re the Matter of Johnathan E. Able
Complaint filed alleging the late filing of the Final Election Period Report which was due on December 2, 2010 and filed on February 2, 2011, 62 days late. Minimum fine is $200.  Staff recommends the Commission make a preliminary determination that there is probable cause that a violation has been committed and that the Respondent be assessed a fine of $200.

Commissioner Robb moved to make a preliminary determination that probable cause of a violation exists.  Motion seconded by Commissioner Weaver.  Motion carried unanimously.

General Counsel Gary Kam stated that the Respondent can appeal the Commission’s finding by requesting a contested case hearing within 20 days of receiving the Commission’s preliminary determination.  If no request or payment of assessed of fine is made, he can take it to first circuit court for a judgment.

Commissioner Robb moved to assess the minimum fine of $200.  Motion seconded by Commissioner Weaver.  Motion carried unanimously.

Docket No. 11-02 – In Re the Matter of Michael W. Hale
Complaint filed alleging the late filings of the Preliminary General Report which was due on October 25, 2010 and filed on January 27, 2011, 94 days late, and the Final Election Period Report which was due on December 2, 2010 and filed on January 27, 2011, 56 days late.  The minimum final for the Preliminary General Report is $300 and the Final Election Period Report is $200.  Staff recommends the Commission make a preliminary determination that there is probable cause that a violation has been committed and that Respondent be assessed a fine of $500.

Commissioner Gabrio moved for relief as stated in the complaint.  Motion seconded by Vice-Chair Olbrich.  Motion carried unanimously.

Legislation Update
Executive Director Izumi-Nitao, reported that HB 257 and HB 258 have crossed over to the Senate and both have been referred to the Senate Judiciary committee.

Commissioner Terms and Chair & Vice-Chair Positions
Executive Director Izumi-Nitao noted the terms for each commission member and reviewed the process for the appointment of new commission members.  Vacancies on the commission are filled from a list of nominees by the judicial council.  Names are added to the list whenever the number of eligible nominees falls below five, and commission appointments are not subject to senate approval.

Executive Director Izumi-Nitao spoke with someone from the Judicial Council and was informed that there are currently nine candidates on the list, and in the past new members are usually appointed at the last minute.  If a commission member plans to resign before their term is up, we will need to let the Governor and Judicial Council know.

Discussion regarding the selection of a new chairperson and vice-chair.  Because of the possible mass transition of commission members and for succession planning as well as continuity of the programming, it was suggested that Commissioner Weaver assume the chairperson role as of the next meeting.  As an alternative, Commissioner Weaver suggested that Commissioner Olbrich step down as Vice-Chair and he assume the vice-chair role.

Commissioner Olbrich resigned from the vice-chair position and with consensus of the commissioners named Commissioner Weaver the new Vice-Chair.

Report from Executive Director
Failure to File Reports
Executive Director Izumi-Nitao reported that there will potentially be complaints similar to the Able and Hale complaints discussed earlier, filed against at least 28 other candidates.  Fifteen will be against those who have not filed any disclosure reports, and thirteen will be against those who have filed their report but have not paid the fine.  For those who have not filed any reports and the fine cannot be calculated, staff intends to apply HRS section 11-410(a) which allows for an administrative fine up to $1,000.

General Counsel Kam reported that the upcoming complaints will also name the treasurer if there is one.  HRS sections 11-333 and 11-334 provide that both the candidate and treasurer are responsible for the filing of the reports.  If the commission makes a preliminary determination of probable cause, the respondent has the right to request a contested case hearing.  If there is no response or compliance the order becomes final and can take it to first circuit court, and if an order is obtained from the circuit court enforcing the commission’s decision and the respondent fails to pay the fine, the respondent may be found in contempt of court.

McComish v. Bennett
Oral argument will be before the U.S. Supreme Court on 3/28/11.  Lower court held that the matching funds provision of Arizona’s Citizens Clean Elections Act did not violate the 1^stamendment and so it was not unconstitutional.  The court held that the matching funds provision imposed only a minimal burden on 1^st amendment rights and it survived intermediate scrutiny because it bears a substantial relation to the state’s interest in reducing quid pro quo political corruption.  The Hawaii Attorney General’s Office will not be submitting amicus brief.

CSC Furloughs
When Governor Abercrombie signs the executive order furloughs for the office will end April 1, 2011.

Commissioner Robb moved to convene executive session to consult with attorney on Yamada et al v. Kuramoto et al.  Motion seconded by Commissioner Weaver.  Motion carried unanimously.

Public session reconvened at 12:09 p.m.

Next Meeting:
Scheduled for Wednesday, April 13, 2011 at 10:30 a.m.

Chair Kuramoto asked for a motion to adjourn meeting.  Commissioner Weaver moved to adjourn meeting.  Motion seconded by Vice Chair Olbrich.  Motion carried unanimously.

Meeting adjourned at 12:10 p.m.