Campaign Spending Commission

Campaign Spending Commission Meeting
Leiopapa A Kamehameha Building, Room 204
December 17, 2008
12:00 p.m.

Members Present:
Paul Kuramoto, Steven Olbrich, Gino Gabrio, Dean Robb, Michael Weaver

Staff Present:
Barbara Wong, Tony Baldomero, Grant Tanimoto, Ellen Kojima
Russell Suzuki, Deputy Attorney General
Robyn Chun, Deputy Attorney General

Call to Order:
Meeting convened at 12:00 p.m. with Chairperson Kuramoto presiding.

Consideration of Minutes:
Commissioner Olbrich moved to approve the minutes of November 12, 2008, as amended (by removing the reference to motion to adjourn the meeting).  Motion seconded by Commissioner Weaver.  Motion carried unanimously.

Old Business:
No old business to discuss.

New Business:
Docket 08-08 In Re Tercia Ku, Tercia Ku Campaign Committee
Complaint by the Executive Director of the Commission against Tercia Ku and her campaign committee for failure to file 6 disclosure reports between September 13, 2006 and January 31, 2008.  After sending letters and publishing her name in the newspaper and on the website late filing penalties totaled $7,800.  An initial $50 is assessed when the report is not filed on time.  If the name is published, a daily $50 penaltyis assessed for every day the report is late.  Because of the concern that there is no cap on the daily penalty, and it may become excessive, the Commission staff aggregated penalties for each unfiled report up to $1,500. In Count 1, the penalty is $50 because her name was not published.  In each of Counts 2-6, the penalty is $1,500 plus the initial $50.  Staff recommends that there be a determination that probable cause exists that the campaign spending law has been violated and that respondent be assessed $7,800 in administrative penalties for filing 6 reports late.

Commissioner Olbrich recused – business relationship

Discussion regarding the late filing penalty statute.  The law regarding the $50 late filing penalty and the $50 daily penalty without a cap has been in place for many years, but it was not fully enforced.  The law was changed in 2008, to include a cap on the penalty.  Commissioner Gabrio expressed concern regarding the amount of the late filing penalties and what discretion the Commission has regarding the waiver or reduction of penalties.

Commissioner Gabrio moved to convene to executive session to consult with attorney regarding the Commission’s discretion to waive or reduce penalties.

Public session reconvened at 12:35 p.m.

Chairperson Kuramoto stated that the Commission will be seeking a legal opinion from the Attorney General’s office on the Commission’s authority to waive or reduce a penalty.  Until the opinion is received the following matters will be deferred:  Docket 08-08 In Re Tercia Ku, Tercia Ku Campaign Committee, Docket 08-09 In Re Henry Kahula, Jr, Friends of Kahula, In Re the Matter of Carpent Linoleum & Soft Tile Local Union 19256 Market Recovery Fund PAC, In Re the Matter of Michael Moore, Citzens for Moore, In Re the Matter of Marlene Purdy, Friends of Waipa Purdy, In Re the Matter of Toy Takumi and In Re the Matter of Gil Riviere, Friends for Gil Riviere.  Parties will be informed via mail when the matters are re-scheduled.

Commissioner Robb moved that all matters (as previously stated) be re-scheduled until an opinion regarding late filing penalty waivers or reductions is received.  Motion seconded by Commissioner Weaver.  Motion carried. (aye-Kuramoto, Gabrio, Robb, Weaver / recused-Olbrich)

Docket 08-06 Sarah Hunt v. Kurt Fevella
Complaint filed by Sarah Hunt alleging faulty endorsements on candidate Kurt Fevella brochures.  The issue of faulty endorsements in Mr. Fevella’s brochures is not within the jurisdiction of the campaign spending law.  Staff recommended dismissal of the complaint as the complaint failed to provide statements to support a claim that a law or rule had been violated.

Sarah Hunt questioned whether it was a misuse of campaign funds to send out a brochure with faulty endorsements.  Commissioner Gabrio pointed out that from information received, it did not apepar that any campaign spending law or rule had been violated, but that she had the opportunity to prove otherwise.

Commissioner Gabrio moved to dismiss the complaint for lack of jurisdiction.  Motion seconded by Chair Kuramoto.

Discussion on whether the complaint should be dismissed for lack of jurisdiction.

Commissioner Gabrio withdrew previous motion and moved to dismiss the complaint.  Motion seconded by Chair Kuramoto.  Motion carried. (aye-Kuramoto, Gabrio, Robb, Weaver / no-Olbrich)

Docket 08-07 Sarah Hunt v. Kurt Fevella
Complaint filed by Sarah Hunt against candidate Kurt Fevella alleging Fevella campaigned for other candidates in violation of HRS, section 11-200, by holding a sign post with multiple signs.  Executive Director Wong stated that candidate Kymberly Pine asked whether multiple signs on one pole is allowable.  She was advised that it was as long as each sign was paid for by each candidate.  Mr. Fevella said that his campaign funds paid for only his signs.  There is no law prohibiting multiple signs on one pole and there is no evidence that Mr. Fevella purchased signs for any other candidate.  Staff recommended dismissal of the complaint.

Commissioner Gabrio moved to dismiss complaint.  Motion seconded by Commissioner Weaver.  Motion carried unanimously.

Communication to Commission:
Proposed Legislation for 2009
Staff presented 4 bills to the Commission for consideration.

CSC 01
  -recodification of the campaign spending law with minimal substantive changes

CSC 02
 -reinstates partial public funding for the office of prosecutor;
 -increases partial public funding by 4%; and
 -repeals equalizing funds for the comprehensive public funding program for Hawaii County Council
Regarding testimony on the repeal of equalizing funds, commissioners asked that the emphasis be made upon court opinions making equalizing funds unconstitutional.

CSC 03
 -includes robocalls in the definition of advertisement;
 -requiring noncandidate committees to file a July 31 report, currently first report during an election year is filed in September;
 -repeals short form reporting; and
 -repeals non-resident contribution limits
Regarding non-resident contribution limits, Executive Director Wong presented several court opinions which indicated that the limits maybe unconstitutional.  Also noted for commissioners information that an AG opinion was requested in 2006, which is still attorney-client privileged.

Commissioner Robb moved to convene executive session to consult with counsel.  Motion seconded by Commissioner Weaver.  Motion carried unanimously.

Public session reconvened at 1:45 p.m.

Discussed that robocalls may be better addressed by amending section 11-215 to require disclaimers, instead of amending the definition of advertisement.  Regarding non-resident contribution limits commissioners requested that the language be modified to include a return period for excess contributions received.

CSC 04
 -prohibits a candidate from filing nomination papers until outstanding campaign spending reports and fines are taken care of.
Will need to work with the Office of Elections to see whether this can be done.

Next Meeting:
Scheduled for Wednesday, January 14, 2009 at 10:00 a.m.

Commissioner Robb moved to convene executive session to consult with counsel regarding pending litigation.  Motion seconded by Commissioner Olbrich.  Motion carried unanimously.

Public session reconvened – 2:15 p.m.

Commissioner Gabrio moved to adjourn meeting.  Motion seconded by Commissioner Olbrich.  Motion carried unanimously.  Meeting adjourned at 2:18 p.m.