Campaign Spending Commission

Campaign Spending Commission
Zoom Video Conference
January 6, 2021
10:00 a.m.

Commissioners Present
Bryan Luke, Stanley Lum, Neal Herbert, Vic Bonfiglio

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

Excused
Maryellen Markley, Ph.D.

Guests
Sarah Glendon, Keola Lindsey, Heidi Guth, 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.

Executive Director Izumi-Nitao stated that Commissioner Markley is excused due to a conflict.

Consideration and Approval of Minutes of Meeting on 12/9/20

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 12/9/20 meeting.  Motion seconded by Commissioner Herbert.  Motion carried (4-0).  Commissioner Bonfiglio voted but he was not a Commissioner at the time of the 12/9/20 meeting.

New Business
*Welcome and Introduction of New Commissioner Vic Bonfiglio – Executive Director Izumi-Nitao introduced new Commissioner Vic Bonfiglio.  He was sworn in on 12/10/20, and received an orientation from Commission staff on 12/10/20 and 12/11/20.  Commissioner Bonfiglio’s term expires on 6/30/24.

Executive Director Izumi-Nitao stated that the fourteen (14) 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. 21-83 – In Re the Matter of Mikey Glendon – 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.

Ms. Sarah Glendon was present on behalf of her son, Mr. Michael Glendon.  She stated that Mr. Glendon is not well at this time.  She paid the conciliation agreement fine of $66.67 and will have Mr. Glendon sign the agreement.

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

*Proposed Conciliation Agreement No. 21-84 – In Re the Matter of Friends of Tante Urban – 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 $300 to $100 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 Herbert.  Motion carried (4-0).

*Proposed Conciliation Agreement No. 21-85 – In Re the Matter of Friends of Keola Lindsey – Executive Director Izumi-Nitao explained that this proposed conciliation agreement concerns the failure to file 24 Statements of Information for Electioneering Communications and requests that they assess a reduced fine from $12,000 to $4,000 as it is Respondent’s first violation.

Mr. Keola Lindsey and Ms. Heidi Guth, treasurer for Friends of Keola Lindsey, were present.  Mr. Lindsey stated that he takes full responsibility for the situation and that he now understands the rules and the processes.  He explained that when his campaign started, they had committed to doing everything possible to ensure full compliance and were proud of everything that they had accomplished.  However, what he thought was genius in using Facebook ads to get his messages out backfired as they resulted in violations.  He said it did not dawn on him that Facebook ads would apply to the electioneering communication statute.  Mr. Lindsey continued that as Facebook and other social media becomes widely used as an election platform for candidates, it is important for candidates to be aware of this requirement to make sure they comply with it.  He stated that anyone who is willing to listen to him will hear from him loud and clear that it is not just your pictures and messaging that are important but also complying with the Commission rules.

Mr. Lindsey thanked the Commission staff who had communicated with them about the situation in a firm and clear manner all while being patient with him as he was confused and overwhelmed.

With regards to the conciliation agreement, Mr. Lindsey stated that he appreciated Section VI, number 9, which recognizes that his campaign did not knowingly, intentionally, or recklessly violate the statute.  He said that is a fact in his opinion.  Mr. Lindsey further stated that while he understands that the conciliation agreement fine is already a significant reduction from what the fine should be, he would like the Commission to consider a further reduction of the fine.  He explained that his campaign is small and only has about $20 left.  In addition, Mr. Lindsey asked for an extension to the deadline to pay the conciliation agreement fine.

Chair Luke stated that this is a conciliation agreement which the Commission believed Mr. Lindsey had agreed upon at this fine level.  He explained that if Mr. Lindsey does not agree with the agreement, he should reject the conciliation agreement and move towards a complaint so he can argue his case.  Executive Director Izumi-Nitao further explained that a conciliation agreement is an agreement between the parties that they have resolved all matters and have agreed to a reduced amount of the fine.  If Mr. Lindsey would like a further reduction, the complaint process is the avenue to consider.  This way, it is no longer a settlement agreement, it is a complaint in which the Commissioners can consider moving the fine beyond the amount set forth.  She added that she also understood Mr. Lindsey’s concern about the deadline and that staff can work with him on a payment plan.

Mr. Lindsey responded that he understood.

Chair Luke asked if Mr. Lindsey would like to continue with the conciliation agreement.  Mr. Lindsey responded that he needs some time to think it through.  Chair Luke suggested to come back to this matter to allow Mr. Lindsey and Ms. Guth time to discuss.  Mr. Lindsey agreed and thanked Chair Luke.

*Proposed Conciliation Agreement No. 21-86 – In Re the Matter of Friends of Frederic (Ric) Wirick – 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.

Vice Chair Lum moved to approve the proposed conciliation agreement.  Motion seconded by Commissioner Bonfiglio.  Chair Luke asked if there were any comments or questions.

Commissioner Herbert asked about Mr. Wirick’s email statement.  He asked staff if Mr. Wirick was given any advice to file for termination when he called about the theft of his campaign banners.  Elections Assistant Vendiola responded that when Mr. Wirick called regarding the theft, he did not indicate that he wanted to terminate his registration so he was not advised on the termination process.

Commissioner Herbert stated that he is inclined to dismiss this case.  Chair Luke stated that this is a conciliation agreement which was agreed upon.  Commissioner Herbert said he understood, but that the email came after he had agreed upon the conciliation agreement.

Executive Director Izumi-Nitao stated that staff cannot just terminate committee’s registration unless they are authorized.  If they had filed a report late and there is a fine, it must be resolved.  Thus, once this matter is resolved, we can work toward his termination assuming he wants to terminate.  Commissioner Herbert responded that that was his intent.

Motion carried (3-1).  Commissioner Herbert opposed.

Chair Luke commented that when Elections Assistant Vendiola spoke to Mr. Wirick, he did not indicate what his intentions were so she helped him in the best way she could at the time without leading him in any sort of direction.

Chair Luke also reminded everyone that a conciliation agreement means both parties have agreed to the conciliation agreement.

*Proposed Conciliation Agreement No. 21-88 – In Re the Matter of Friends of Henry Kaaihue, Jr. –
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 Herbert.  Motion carried (4-0).

*Proposed Conciliation Agreement No. 21-91 – In Re the Matter of Friends of John E. Miller – 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 $350 to $175 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 Bonfiglio.  Motion carried (4-0).

*Proposed Conciliation Agreement No. 21-92 – In Re the Matter of Galen Kerfoot Honolulu City Council Dist 1 – 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 (4-0).

*Proposed Conciliation Agreement No. 21-93 – In Re the Matter of Gabriel for Progress – 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 $166.67 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 (4-0).

*Proposed Conciliation Agreement No. 21-94 – In Re the Matter of Bridges for Prosecutor –
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 (4-0).

*Proposed Conciliation Agreement No. 21-95 – In Re the Matter of Friends of Joy San Buenaventura – 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 Bonfiglio.  Motion carried (4-0).

*Chair Luke recognized that Mr. Keola Lindsey and Ms. Heidi Guth were ready to discuss the matter in Proposed Conciliation Agreement No. 21-85 – In Re the Matter of Friends of Keola Lindsey – Ms. Guth stated that she wanted to echo Mr. Lindsey’s gratitude for the staff for being kind and patient in explaining everything to them and walking them through.  She said they had not used Facebook before they decided to use it for their campaign, so it was all new information.  Ms. Guth further stated that they had the best intentions and read all the instructions and thought they were doing a good job.  She said it will never happen again and that they will teach others so that it will not happen to them.  She requested the Commission to help other candidates in reading the instructions because it is not obvious that Facebook fell under this particular requirement.

Chair Luke asked Ms. Guth if she took any of the trainings that were offered.  Ms. Guth responded that she did not and while it is not an excuse, she did not know when they were held.

Associate Director Baldomero stated that an in-person training for candidate committees was held last year in February.  Due to COVID, the training session was recorded and posted on the Commission’s website.  The training videos are broken up into different category by topic such as how to register and about the different types of reporting that needs to be filed including the electioneering communications statements.

Mr. Lindsey stated that he appreciated the conciliation agreement, especially the section which acknowledges that it was not intentional or reckless.  He stated that they are a small group and want to move forward.  Therefore, he will accept the agreement as written and would like the Commission to decide on it.

Vice Chair Lum moved to approve the proposed conciliation agreement.  Motion seconded by Commissioner Bonfiglio.  Motion carried (3-1).  Commissioner Herbert opposed.

*Proposed Conciliation Agreement No. 21-96 – In Re the Matter of Friends of Kevin McDonald –
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 $50 to $25 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 Bonfiglio.  Motion carried (4-0).

*Proposed Conciliation Agreement No. 21-97 – In Re the Matter of Wyndham Vacation Ownership – 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 Herbert.  Motion carried (4-0).

*Proposed Conciliation Agreement No. 21-98 – In Re the Matter of Friends of Keith Kogachi – 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 $166.67 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 (4-0).

*Proposed Conciliation Agreement No. 21-99 – In Re the Matter of Reginald Perry – Executive Director Izumi-Nitao explained that this proposed conciliation agreement concerns an excess contribution of $500 to a candidate committee 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 (4-0).

*Docket No. 21-28 – 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 Final Election Period Report.  However, upon further review, staff would like to take another look at the matter and work with Respondents on procedural defects with the reporting.  She recommended that the Commission withdraw the complaint.

Vice Chair Lum moved to withdraw the complaint.  Motion seconded by Commissioner Bonfiglio.  Motion carried (4-0).

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 that 8 bills have been approved by the Commission at a prior meeting and were submitted to the Legislature for the 2021 Legislative Session.  He reported that meetings occurred with Representative Sylvia Luke (FIN) on 12/7/20; Senator Karl Rhoads (JUD) on 12/11/20; House Speaker Scott Saiki, Representative Mark Nakashima (JUD), and Representative Scott Matayoshi (JUD) on 12/16/20; and Senate President Ron Kouchi on 1/5/21.  A meeting with Senator Donovan Dela Cruz (WAM) was scheduled for 1/4/21, but it was postponed.  Commission staff will be meeting with Common Cause and other interested parties on 1/7/21 to discuss the bills.

Executive Director Izumi-Nitao reported that budget briefings for DAGS were heard on 1/5/21(FIN) and will be heard on 1/7/21 (WAM-GVO).

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

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

• Final Election Period Report was due on 12/3/20:
  • 15 candidate committees and 4 noncandidate committees still have not filed.

With respect to prior reports, there are 1-3 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.

*Certification Process of Candidates Elected in the 2020 Election
Executive Director Izumi-Nitao reported that all candidates who were elected in the county races and OHA have been certified, and thus, sworn into office.  With respect to the candidates elected in the Senate and the House of Representatives, Associate Director Baldomero stated that there are 5 candidates remaining that have not been certified (3 in the Senate and 2 in the House).

Executive Director Izumi-Nitao added that Elections Assistant Vendiola has been and will continue to send certification memorandums to the Office of Elections and County Clerks on Tuesdays.

* Report on the 2021 January CSC Newsletter
Executive Director Izumi-Nitao reported on the contents of the Commission’s January newsletter and stated that the targeted publish date will be 1/8/21.

Commissioner Herbert commented that the website links on the newsletter are an excellent idea.

Ms. Sandy Ma of Common Cause asked about the budget discussions with the legislature and if there were any concerns with the Commission’s budget and the HECF.  She also asked if there are any concerns with the $3 tax check-off and not having enough money in the general fund to transfer funds into the HECF.

Executive Director Izumi-Nitao responded that the Commission did not collect very much through the $3 tax check-off last year and that trend will probably continue.  She said there is about $1.3 million currently in the HECF.  Associate Director Baldomero added that the total revenue from the $3 tax check-off at the end of fiscal year 2020 was about $90 thousand, which was substantially lower than previous fiscal years.  He further added that it was the first time since at least 1991 that the revenue generated was less than $100 thousand.

With regards to the Commission’s budget, Executive Director Izumi-Nitao stated that to her knowledge, the Commission’s budget remains the same and intact, but will most likely be restricted by the Governor by at least 10%.  She said the Commission is doing the best to operate within its means.  Executive Director thanked Ms. Ma for her concern for the Commission’s budget and the HECF.  She also stated that the Commission will do its best to protect the HECF.

Chair Luke asked if there are any more questions or comments about the newsletter.  There were none.

Commissioner Herbert requested that the observations about the COGEL Conference be included on the next agenda.  Executive Director Izumi-Nitao agreed and stated that she will be sure to include it for the next meeting.

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 12/9/20; (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 Herbert.  Motion carried (4-0).

Public Session reconvened at 11:42 a.m.

Vice Chair Lum moved to adjourn the meeting.  Motion seconded by Commissioner Herbert.  Motion carried (4-0).  Meeting adjourned at 11:43 a.m.

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