Campaign Spending Commission

Draft

Campaign Spending Commission Meeting
Zoom Video Conference
March 13, 2024
10:00 a.m.

Commissioners Present
Neal Herbert, David Chee, Vic Bonfiglio, Jon Itomura, Stanley Lum

Staff Present
Kristin E. Izumi-Nitao, Tony Baldomero, Gary Kam, Terence Lau, Anthony Diep
Deputy Attorney General Candace Park

Guests
Chad Blair, Kaniela Ing, “V”, “TNH”

Call to Order
Chair Herbert called the meeting to order at 10:06 a.m.

Chair Herbert went over the procedures for the remote meeting via Zoom and introduced the Commissioners and Commission staff who were present.

Consideration and Approval of Minutes of Meeting on 2/14/24
Chair Herbert submitted an amendment to the 7^th paragraph on page 3 under Old Business, Docket No. 23-29 – In Re the Matter of Mark Ing and Friends of Kaniela Ing, to read:  “Chair Herbert asked about the fine and the Standard Fine Guidelines as well as the possibility of a payment plan.  General Counsel Kam stated that the fine recommendation was in accordance with the Standard Fine Guidelines which has not changed for the violations at issue in the complaint.  Further, that a payment plan is possible by agreement by the parties.”

Commissioner Bonfiglio moved to approve the amended minutes of the meeting held on 2/14/24.  Motion seconded by Vice-Chair Chee.  Motion carried (5-0).

New Business
*Welcome and Introduction of New Administrative Assistant Anthony Diep – Executive Director Izumi-Nitao introduced Anthony Diep as the Commission’s new Administrative Assistant.  She stated that he started on 11/16/23 and briefly described his personal and educational background.

Executive Director Izumi-Nitao stated that the following Conciliation Agreement(s) 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 the 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 each of the proposed agreements.

*Proposed Conciliation Agreement No. 24-05 – In Re the Matter of Tulungan Nac Man (Help Me) for Maurice Morita – Executive Director Izumi-Nitao explained that this proposed conciliation agreement concerns the late filing of the Supplemental Report and requested that they assess a reduced fine from $200 to $100 as it is Respondent’s second violation.  Chair Herbert asked if there were any comments or questions.

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

*Proposed Conciliation Agreement No. 24-06 – In Re the Matter of Committee to elect Veamoniti Lautaha – Executive Director Izumi-Nitao explained that this proposed conciliation agreement concerns the late filing of the Supplemental Report and requested that they assess a reduced fine from $200 to $100 as it is Respondent’s second violation.  Chair Herbert asked if there were any comments or questions.

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

*Proposed Conciliation Agreement No. 24-07 – In Re the Matter of Family & Friends of Mark Talaeia – Executive Director Izumi-Nitao explained that this proposed conciliation agreement concerns the late filing of the Supplemental Report and requested that they assess a reduced fine from $200 to $100 as it is Respondent’s second violation.  Chair Herbert asked if there were any comments or questions.

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

*Proposed Conciliation Agreement No. 24-08 – In Re the Matter of Friends of Clyde McClain Lewman aka Mac Lewman – Executive Director Izumi-Nitao explained that this proposed conciliation agreement concerns the late filing of the Supplemental Report and requested that they assess a reduced fine from $200 to $100 as it is Respondent’s second violation.  Chair Herbert asked if there were any comments or questions.

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

*Proposed Conciliation Agreement No. 24-09 – In Re the Matter of Friends of Kapono Hawaii – Executive Director Izumi-Nitao explained that this proposed conciliation agreement concerns the late filing of the Supplemental Report and requested that they assess a reduced fine from $200 to $66.67 as it is Respondent’s first violation.  Chair Herbert asked if there were any comments or questions.

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

*Proposed Conciliation Agreement No. 24-10 – In Re the Matter of Kanzo Nara for US – Executive Director Izumi-Nitao explained that this proposed conciliation agreement concerns the late filing of the Supplemental Report and requested that they assess a reduced fine from $200 to $66.67 as it is Respondent’s first violation.  Chair Herbert asked if there were any comments or questions.

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

*Proposed Conciliation Agreement No. 24-11 – In Re the Matter of Sue Martin – Executive Director Izumi-Nitao explained that this proposed conciliation agreement concerns an excess contribution of $1,000 to a candidate committee (Friends of Ernest Z. Kanamu Balinbin) and requested that they assess a reduced fine from $350 to $116.67 as it is Respondent’s first violation.

However, since staff has not received the $1,000 escheat to the Hawaii Election Campaign Fund from the candidate committee, she recommended that the matter be continued to the 4/10/24 Commission meeting.

Commissioner Bonfiglio moved to continue the proposed conciliation agreement to the 4/10/24 Commission Meeting.  Motion seconded by Vice-Chair Chee.  Motion carried (5-0).

Old Business
*Docket No. 23-29 – In Re the Matter of Mark Ing and Friends of Kaniela Ing – General Counsel Kam reported that this matter was continued by the Commissioners at the 2/14/24 meeting to permit Respondent Ing to consult with his attorney.  To date, no attorney has contacted General Counsel Kam.  As such, General Counsel Kam recommended that the Commission make a preliminary determination, pursuant to HRS §11-405(a), that there is probable cause to believe that the Hawaii campaign finance law has been violated by Respondents, assess an administrative fine in the amount of $18,250 against Respondents, as follows:

Count I (Failure to Keep Records):  $1,000
Count II (False Report):  $750
Count III (False Report):  $750
Count IV (False Report):  $750
Count V (False Report):  $750
Count VI (False Report):  $750
Count VII (False Report):  $750
Count VIII (False Report):  $750
Count IX (False Report):  $750
Count X (False Report):  $750
Count XI (False Report):  $750
Count XII (False Report):  $750
Count XIII (False Report):  $750
Count XIV (False Report):  $750
Count XV (False Report):  $750
Count XVI (False Report):  $750
Count XVII (False Report):  $750
Count XVIII (False Report):  $750
Count XIX (False Report):  $750
Count XX (False Report):  $750
Count XXI (False Report):  $750
Count XXII (False Report):  $750
Count XXIII (False Report):  $750
Count XXIV (False Report):  $750

Further, General Counsel Kam recommended that the Commission order that any and all administrative fines be paid within thirty days of Respondent Ing’s receipt of the order and that the fines be deposited in the general fund, pursuant to HRS § 11-410(e).  Lastly, he recommended that Respondents be placed on inactive status with the Commission (as long as Respondents do not trigger the campaign finance laws to file mandatory disclosure reports) pending payment of the fine.  He stated that staff believes that it would be pointless to again order Respondents to correct or amend their inaccurate disclosure reports, and thus, does not recommend an order requiring them to do so.

Respondent Kaniela Ing was present by zoom and stated that he has not heard from his attorney Bill Harrison and could not confirm whether he will represent him pro bono.  He further stated that he tried to contact four other attorneys and they declined.  Respondent Ing requested a continuance to respond to the complaint and look at the records more comprehensively.

General Counsel Kam stated that a lot of time has passed that Respondent Ing could have provided any information.  In 2021, when General Counsel Kam had concerns regarding the amended reports, he asked Respondent Ing for any records.  He then got a call from Respondent Ing’s attorney, Bill Harrison, who told him that he instructed his client not to produce anything because there was a federal investigation involving the same matters.  As such, the Commission’s investigation of Respondent Ing’s amended reports was put on hold for over a year.  When the federal investigation was completed, General Counsel Kam renewed his request for records from Respondent Ing in 2022 but did not receive them.

Vice-Chair Chee asked Respondent Ing how much time he needed to respond to this complaint.  Respondent Ing stated that he wants to show that this was a mistake, that he did not intentionally file false reports, and as such, ask that the Commission drop the fine amount since he has paid over $20,000 in fines.

Vice-Chair Chee asked if there was any time limit for the Commission to make a decision.  General Counsel Kam replied no.

Vice-Chair Chee asked Respondent Ing if 6 weeks, or until the Commission’s meeting in May 2024, would be sufficient time for him to respond.  Respondent Ing stated that that would be sufficient time and even permit him time to get an attorney.

Commissioner Itomura asked when the investigation started.  General Counsel Kam replied that it started in 2016 and that the 1^st complaint was issued in 2018, and a 2^nd complaint was issued in 2023.  Commissioner Itomura asked if the complaints involved the same records or documents.  General Counsel Kam stated that the documents are different to which Executive Director Izumi-Nitao commented that both complaints concerned the same disclosure reports and the same bank records.

Commissioner Itomura asked if Respondent Ing responded to any of the counts in the complaint in writing.  Respondent Ing replied no.

Commissioner Itomura asked when Respondent Ing received the complaint.  General Counsel Kam stated that the complaint being considered today is the same complaint that was given to Respondent Ing in February 2023.  The only difference is the remedy (i.e., criminal prosecution versus civil administrative fines).  Respondent Ing stated that he thought that when the complaint was referred for criminal prosecution in 2023, and then declined, he thought the matter was settled.

General Counsel Kam stated that the law requires that Respondent Ing file true, accurate, and complete reports, and that intent is not considered because the Commission is now considering the assessment of civil administrative fines.

Commissioner Itomura commented that 6 weeks is a lot of time for a continuance and that the underlying complaint contains the same records which were considered back when the matter was referred for prosecution and that Respondent Ing has not submitted any other records.

Chair Herbert stated that the complaint was referred back to the Commission to handle as a civil matter when criminal prosecution was declined, and that intent is not an element of this decision.  He said that Respondent Ing’s comments about intent are not persuasive, but may be taken into consideration for mitigation rather than exoneration from the civil process.

Respondent Ing stated that HRS §11-340 mentions intent, filing substantially defective reports, and the implication of reckless conduct rather than purposefully filing false reports.

Commissioner Lum stated that this complaint was continued from the last meeting so that Respondent Ing could contact his attorney which seems he has not resolved.  He stated that inaccuracy is inaccuracy regardless of the magnitude.

Chair Herbert stated that the only issue is whether a false report was filed and not whether there was an intent to file a false report.

Respondent Ing referred to HRS §11-340 with a comment about filing a substantially defective report.  General Counsel Kam stated that this section was not charged and applies to reports close to when they are due, when an amendment would likely be more germane to an election, unlike the reports at issue here.

Chair Herbert stated that unless Respondent Ing had meaningful evidence to show that the reports he filed were not false, he did not want to waste more time.

Commissioner Bonfiglio commented that they should permit Respondent Ing 6 weeks to respond and disagreed with the acceleration of the complaint being heard by the Commission.

Vice-Chair Chee moved to go into 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.  Motion seconded by Commissioner Itomura.  Motion carried (4-1; Commissioner Bonfiglio opposed).

*Commission went into Executive Session at 11:03 a.m.  Executive Director Izumi-Nitao, General Counsel Kam, and Associate Director Baldomero were excused.

*Commission returned into public session at 11:15 a.m.  Executive Director Izumi-Nitao, General Counsel Kam, and Associate Director Baldomero returned.

Vice-Chair Chee moved to continue the matter for the last time until the Commission’s next meeting on 5/8/24 to permit Respondent Ing to provide any written materials to the Commission by 4/24/24 (or 2 weeks before the meeting).  Motion seconded by Commissioner Itomura.  Motion carried (5-0).

Vice-Chair Chee asked if Respondent Ing understood that these deadlines were hard and non-negotiable.  Respondent Ing said yes.

*Commissioner Lum left the meeting at 11:18 a.m.

*Consideration, Discussion, Approval, and/or Update of Commission Legislation and Other Related Bills/Resolutions for the 2024 Legislative Session – General Counsel Kam reported on the status of the Commission’s bills as well as other campaign finance related bills.  Of the Commission’s bills submitted this session, only 1 is alive in the House (H.B. 1845) and 1 is alive in the Senate (S.B. 2213), both of which have crossed over.  There are 4 House bills moving and 6 Senate bills moving that affect campaign finance.

Report from Executive Director
*Report on Compliance of Filing Timely Disclosure Reports – Executive Director Izumi-Nitao provided an update on compliance of past disclosure reports.  She stated that many of the non-filers represent the same committees that have failed to file prior reports and have been referred to the Attorney General’s Office – Civil Recoveries Division for enforcement proceedings.

*Vice-Chair Chee left the meeting at 11:32 a.m.

Executive Session
*Consideration and Approval of Executive Session Minutes of Meeting on 2/14/24 – Chair Herbert moved to approve the executive session minutes on 2/14/24.  Motion seconded by Commissioner Bonfiglio.  Motion carried (3-0).

Next Meeting:
Scheduled for Wednesday, April 10, 2024.

Chair Herbert asked for a motion to adjourn the meeting.  Commissioner Itomura moved to adjourn the meeting.  Motion seconded by Commissioner Bonfiglio.  Motion carried (3-0).

Meeting Adjourned at 11:35 a.m.