Minutes for January 9, 2019 Meeting

Posted in Minutes

Campaign Spending Commission
Leiopapa A Kamehameha Building, Room 204
January 9, 2019
9:00 a.m.

Commissioners Present
Bryan Luke, Gregory Shoda, Stanley Lum, Maryellen Markley, Ph.D.

Staff Present
Kristin Izumi-Nitao, Tony Baldomero, Gary Kam, Yayoi Tumamao
Deputy Attorney General Valri Kunimoto

Excused
Kenneth Goodenow

Call to Order
Chair Luke called the meeting to order at 9:08 a.m.

Consideration and Approval of Minutes of Meeting on 12/19/18
Chair Luke asked for comments or changes to the minutes.  There were none.  Chair Luke called for a motion to approve the minutes.

Commissioner Markley moved to approve the minutes of the 12/19/18 meeting.  Motion seconded by Commissioner Lum.  Motion carried (4-0).

New Business
*Chair Luke asked if there was any objection to taking Docket No. 19-22 out of order of business on the agenda. There was none.

Chair Luke asked for a motion to amend the agenda to go into Executive Session pursuant to HRS section 92-5(a)(4) – To consult with the Commission’s attorney on questions and issues pertaining to the Commission’s powers, duties, privileges, immunities, and liabilities concerning Docket No. 19-22 – In Re the Matter of Maui County Council.

Commissioner Lum moved to go into Executive Session for the aforementioned reason. Motion seconded by Commissioner Markley. Motion carried (4-0).

*Executive Director Izumi-Nitao, Associate Director Baldomero, General Counsel Kam, and the public were excused.

*Public Session reconvened at 9:25 a.m.

*Docket No. 19-22 – In Re the Matter of Maui County Council
General Counsel Kam reported that a complaint by the Executive Director had been filed against Respondent Maui County Council for the failure to register as a noncandidate committee in violation of HRS §11-321.

Respondent Maui County Council is the legislative and policy-making body of Maui County.

In October 2018, a resident of Maui County sent Commission staff a copy of a mailer identifying Respondent and its members, and complained that they used taxpayer money to advocate against an issue that was to appear on the ballot. The question:  “Shall the legislature be authorized to establish, as provided by law, a surcharge on investment real property to be used to support public education?”  was to be placed on the General Election ballot and has been referred to as the “ConAm.”  After the investigation commenced, Commission staff received a second mailer sent out by Respondent from another resident of Maui County advocating against the ConAm.  The mailers were sent to residents of Maui County in October 2018.

The content of both mailers was discussed.  The mailers included questions and answers about the ballot issue.  General Counsel Kam stated that if the mailers were looked at as a whole, it was not likely that a reader would be inclined to support the ConAm as they raise too many questions and did not include any points that would have been made by someone who supported the ConAm.  They also included a list of ways in which the Respondent already provides educational services to its taxpayers.  He asked why that was necessary unless it was done to discourage people from voting “yes” to the ConAm.  Both mailers referred readers to Respondent’s website and social media accounts for more information on the ballot issue. One of the mailers (Exhibit 1) directs the readers to review council documents online in addition to the website and social media information.

Respondent appropriated $50,000 from the Maui County budget to be used for “the public education on real property tax.”

Minutes from Respondent’s Policy, Economic Development, and Agricultural Committee meeting as well as Respondent’s Budget & Finance Committee meeting were discussed which contained testimony and statements against the ConAm from the public, Maui County councilmembers, and other government officials.  In the Budget & Finance Committee meeting, the Mayor of Maui also spoke against the ConAm. The general impression from these meetings was that the ConAm needed to be defeated.  These minutes were available on Respondent’s website and were accessible to readers of the mailers.

Respondent spent more than $1,000 on the mailers.  Commission staff was told in a telephone conference meeting with a staff member of the Budget & Finance committee and Deputy Corporation Counsel Jeffrey Ueoka that the amount spent on these two mailers was about $26,000.

General Counsel Kam stated that if the mailers were looked at on their own without any reference to the materials on the Respondent’s website, he did not think that anyone could come to any other conclusion that they were seeking to influence the outcome of the ballot question and not in a positive way.

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 $100, order that any and all administrative penalties be deposited into the general fund pursuant to HRS §11-410(e), and order that Respondents register as a noncandidate committee and file the necessary reports.

Deputy Corporation Counsels from the County of Maui, Mr. Jeffrey Ueoka and Mr. Brian Bilberry, were present and introduced themselves.  Deputy Corporation Counsel Ueoka clarified that Respondent is being cited for not registering as a noncandidate committee.  He stated that Respondent’s position is that it is not a noncandidate committee, and therefore, there is no reason to register or file any reports.  Deputy Corporation Counsel Ueoka stated that no one has been able to definitively identify exactly what in the mailers advocated for or against the ConAm.  He stated that while common sense interpretation of “for or against” is an overt statement to vote one way or another, there is no guidance in the HRS with regard to what “for or against” means.  He argued that it is entirely unfair to interpret what “for or against” means without guidelines or policies, and that it is difficult to defend this issue lacking any analysis as to what the Respondent did wrong.  He emphasized that to comply with it moving forward is essentially saying that Respondent is in violation because someone said so.

Deputy Corporation Counsel Ueoka described how the Hawaii Supreme Court invalidated the ballot question.  He also stated that the councilmembers were very opinionated on the issue and numerous statements were made relaying their personal feelings on the ConAm.  However, it was not on the councilmembers’ statements on which the public funds were spent—it was the mailers.  Therefore, he argued that there is no trigger for the Respondent to register because no money was spent on councilmembers’ statements.

Deputy Corporation Counsel Ueoka addressed General Counsel Kam’s statement about the Maui Mayor speaking at the Budget and Finance committee meeting.  He stated that the mayor is not part of the legislative body on Maui and that he is with the executive branch.  As such, he had no say in these mailers.

Deputy Corporation Counsel Ueoka further explained that the Office of Council Services (administrative staff to the county council) consulted with his office when the mailers were being drafted.  During their consultation, the issue of registering as a ballot issue committee (noncandidate committee) had indeed come up.  However, his office told them it was unnecessary to register due to the Rees v. Carlisle decision, and that they were not allowed to take a position for or against the ConAm.  As a result, they crafted the mailers to be educational—stating facts surrounding the issues and questions relating to the ConAm.

Deputy Corporation Counsel Ueoka asserted that Respondent is now faced with a situation where the clear language for or against is being misconstrued and perhaps even misinterpreted to mean the presentation of facts surrounding an issue is for or against something.  He further maintained that he believes the Supreme Court of Hawaii would support the legitimacy of the presentation of facts in the mailers.  He explained that every point brought up in the mailer was something to which the Supreme Court also questioned about the ballot measure and that the Court emphasized the importance of informed voters.  As such, he insisted that the purpose of the mailers was to inform the voters in Maui County on the issues for which the Supreme Court of Hawaii found to be misleading and deceptive, and cited that it is fundamental to provide voters with sufficient information to make an informed decision about the true nature of the proposed ConAm.  He went on to address the questions stated in the mailers and claimed that they were all educational.

Deputy Corporation Counsel Ueoka added that the language of the mailers are being unfairly cast in a light of being negative toward the ConAm, and that it is unfortunate that these statements are not being subjectively interpreted.

Deputy Corporation Counsel Ueoka addressed General Counsel Kam’s statement about Respondent not putting any statement that supported the ConAm.  He argued that Respondent did not put anything that was against the ConAm either because it was purely educational.

Regarding the statements made by councilmembers about the ConAm, Deputy Corporation Counsel Ueoka explained that they are their personal opinions and what they said were not covered in the mailers. He stated that he cannot stop councilmembers from stating their opinion.

Deputy Corporation Counsel Ueoka stated that this may seem rather insignificant and that the county should just register and pay the fine. However, doing so would be an admission against the county’s interest in regard to the Rees v. Carlisle decision.  He also emphasized that Respondent intentionally stayed away from being for or against the ConAm in the mailers. Therefore, he asked that the Commission dismiss the complaint as no funds were expended on a statement that was for or against the ConAm in the mailers.

Executive Director Izumi-Nitao wanted the minutes to reflect that Commission staff received an email from Deputy Corporation Counsel Bilberry on January 8, 2019 as well as a statement from Mr. Justin Hughey on the morning of January 9, 2019, and that these materials were distributed to all parties including the Commissioners to which the Deputy Corporation Counsels acknowledged.

Deputy Corporation Counsel Bilberry stated that the Rees v. Carlisle decision involved a ruling that prohibited the use of public funds for advocating a particular election result.  He argued that if the Respondent was to register as a noncandidate committee, it would be an admission under that case that Respondent used public funds to advocate one way or another on the ConAm.  He added that that was the fundamental reason why the registration did not occur.  He stated that to be asked now to do that would be putting the Respondent in a position of violating the law.

Commissioner Shoda asked when the Rees v. Carlisle case occurred.  Deputy Corporation Counsel Bilberry responded that it was in 2007.

General Counsel Kam stated that when you are looking for express advocacy and its functional equivalent in an advertisement, as it states in the rules, there are no special words to look for.  The advertisement needs to be looked at as a whole to determine whether it is advocacy.  He argued that the fact that it does or does not expressly state vote for/against should not be a factor.

Chair Luke asked whether Respondent reviewed the mailers before they went out.  Deputy Corporation Counsel Ueoka responded that they reviewed them and determined that the mailers were completely factual.

Deputy Corporation Counsel Bilberry stated that he does not disagree with what General Counsel Kam said about looking at the mailer as a whole.  He insisted that statements that were made by councilmembers and the two bubbles referring to the council website should be put aside and that the 4 corners of the mailers should be looked at.  He explained that that was the approach that the Respondent took and believes that the circuit court would also take that approach in looking at the mailers if this case were to be reviewed.  He also pointed out that this complaint was initiated by a party who was advocating for the ConAm, and that the complaint with the Commission did not come out until the Supreme Court invalidated the amendment.

Commissioner Shoda stated that he had concerns about the Commission citing another government entity for a campaign violation.

General Counsel Kam responded that Commission staff treated this case like any other mailer case.  He also stated that Commission staff had at least two telephone conversations with the Deputy Corporation Counsels and members of the Budget and Finance staff.  Executive Director Izumi-Nitao added that HRS §11-302 definition of a noncandidate committee does not exempt government bodies or entities.  As such, Commission staff looked at this case as it would look at any organization that spends over a $1000 to support or oppose a ballot measure.

Commissioner Shoda shared a concern that, according to their statement, there were funds authorized for public education, but did not say it was authorized for advocacy.  He stated that this was a gray case, and that in a gray case, the Commission should vote in favor of dismissing the complaint.

Discussion ensued about the purpose of the funds and the interpretation of Respondent’s intent. Executive Director Izumi-Nitao pointed out that while it was clear what the funds were for, there were other comments, statements, and references that suggested an intent that was up for interpretation. Deputy Corporation Counsel Bilberry argued that he believes the point on the intent is where it is gray.  He stated that intent is expressed in a committee report which states that the purpose was to educate. However, he did not think that intent mattered in this case because the real question is what was within the 4 corners of the mailers.

Chair Luke asked if another organization said that they were just trying to educate the public and they created a piece that stated things that people were asking about and included random quotes of other people, how should the Commission handle such a case.  General Counsel Kam responded that educating is advertising.  Discussion ensued about education and advertisement involving ballot issues and normal government functions which involve educating the public.

Executive Director Izumi-Nitao commented that the mailer came in from a resident of Maui who read the mailers very differently – he believed that they did not appear to educate but rather opposed the ConAm. Granted, said resident is a teacher.  Deputy Corporation Counsel Bilberry mentioned that the resident is actually more than a teacher because he is also a board member for HSTA who advocated for the ConAm.

Commissioner Markley expressed her concerns about how the statements in the mailers were worded.  She explained that after reading the mailers, she immediately got the same impression that this Maui resident got.  She further stated that if the council had strong feelings about this issue one way or another, it should not come out so clear in something that is being paid for by taxpayer money.

Deputy Corporation Counsel Bilberry stated that the impression he got after reading the mailers might not have been dissimilar from what Commissioner Markley had described.  However, he believed it had less to do with the wording of the mailer and more to do with the problems of the ballot measure language. Commissioner Markley asked if a reasonable person who is completely unfamiliar with the situation with ConAm read the mailers, what his or her impression would be.  Deputy Corporation Counsel Bilberry responded that his hope would be that they would want to read the ballot amendment to see what it said, and then want to learn more about it.

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

Commissioner Shoda moved to dismiss the complaint.  Motion seconded by Commissioner Lum.  Motion carried (4-0)

*Chair Luke returned to the order of business on the agenda.

Executive Director Izumi-Nitao stated that the five (5) Conciliation Agreements 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. 19-133 – In Re the Matter of John Carroll for Governor
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.  Chair Luke asked if there were any comments or questions.

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

*Proposed Conciliation Agreement No. 19-134 – In Re the Matter of Abolghassem Abraham Sadegh
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.  Chair Luke asked if there were any comments or questions.  There were none.  Chair Luke called for a vote.

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

*Proposed Conciliation Agreement No. 19-135 – In Re the Matter of Friends of Eileen Ohara
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 $150.44 to $50.15.  Chair Luke asked if there were any comments or questions.  There were none.  Chair Luke called for a vote.

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

*Proposed Conciliation Agreement No. 19-136 – In Re the Matter of Friends of Raina Whiting
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.  Chair Luke asked if there were any comments or questions.  There were none.  Chair Luke called for a vote.

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

*Proposed Conciliation Agreement No. 19-137 – In Re the Matter of Friends of Daniel Kanahele
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.  Chair Luke asked if there were any comments or questions.  There were none.  Chair Luke called for a vote.

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

*Docket No. 19-24 – In Re the Matter of Debra Kekaualua and Debra Kekaualua
Executive Director Izumi-Nitao reported that a complaint by the Executive Director had been filed against Debra Kekaualua and Debra Kekaualua for failing to file the Final Election Period Report.

Respondent Kekaualua filed nomination papers to be a 2018 candidate for the Mayor of Kauai.  In the Organizational Report filed with the Commission, Respondent Kekaualua is listed as the candidate and treasurer of the candidate committee called Debra Kekaualua.

Pursuant to HRS §11-334(a)(3), Respondents were required to file the Final Election Period Report for the period covering 1/1/18 through 11/6/18 by 11:59 p.m. Hawaii standard time on 12/6/18.  Respondents did not file this report by the deadline.

On 12/7/18, Commission staff notified Respondents via first class mail of their failure to file this report and that a fine would be imposed.  Respondents have not filed this report.

On 12/31/18, Commission staff sent Respondents a copy of the complaint and set the matter on the 1/9/19 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, order that any and all administrative penalties be deposited into the general fund pursuant to HRS §11-410(e), and order that Respondents file the Final Election Period Report within two (2) weeks of receipt of this order.

Commissioner Shoda 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 Lum.  Motion carried (4-0).

Chair Luke expressed concerns about candidate committees that sometimes argue they did not receive the Commission’s notices because they did not check their mail, and asked if Commission staff could use different means, such as emails, to notify candidate committees regarding their failure to file reports. Executive Director Izumi-Nitao responded that the law states the Commission needs to notify committees via first-class mail.

Associate Director Baldomero stated that for this particular case, Commission staff called Respondents about the report on December 21, 2018 and December 27, 2018 and left voicemails with no response. Executive Director Izumi-Nitao added that because Respondents indicated that they will stay within the $1,000 threshold in receiving contribution and making expenditures, the Final Election Period Report was their first and only report that needed to be filed for the 2018 election.

*Docket No. 19-25 – In Re the Matter of Cecelia Napohaku-Hoffman, Marciana Nishida, and Cecelia K. Napohaku-Hoffman
Executive Director Izumi-Nitao reported that a complaint by the Executive Director had been filed against Cecelia Napohaku-Hoffman, Marciana Nishida, and Cecelia K. Napohaku-Hoffman for failing to file the Final Election Period Report.

Respondent Napohaku-Hoffman filed nomination papers to be a 2018 candidate for Kauai County Council.  In the Organizational Report filed with the Commission, Respondent Nishida is listed as the treasurer of the candidate committee called Cecelia K. Napohaku-Hoffman.

Pursuant to HRS §11-334(a)(3), Respondents were required to file the Final Election Period Report for the period covering 1/1/18 through 11/6/18 by 11:59 p.m. Hawaii standard time on 12/6/18.  Respondents did not file this report by the deadline.

On 12/7/18, Commission staff notified Respondents via first class mail of their failure to file this report and that a fine would be imposed.  Respondents have not filed this report.

On 12/31/18, Commission staff sent Respondents a copy of the complaint and set the matter on the 1/9/19 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, order that any and all administrative penalties be deposited into the general fund pursuant to HRS §11-410(e), and order that Respondents file the Final Election Period Report within two (2) weeks of receipt of this order.

Associate Director Baldomero stated that Commission staff called Respondents on December 21, 2018 and December 27, 2018. Commission staff spoke to Respondents on December 21, 2018 and left Respondents a voicemail on December 27, 2018.

Commissioner Markley 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 Shoda.  Motion carried (4-0).

*Docket No. 19-26 – In Re the Matter of 808 News Hawaii and Jason Skaggs
Executive Director Izumi-Nitao reported that a complaint by the Executive Director had been filed against 808 News Hawaii and Jason Skaggs for failing to file the Final Election Period Report.

Respondent is a noncandidate committee registered with the Commission.  In the Organizational Report filed with the Commission, Respondent Skaggs is listed as the chairperson and treasurer of the noncandidate committee.

Pursuant to HRS §11-336(c), Respondents were required to file the Final Election Period Report for the period covering 1/1/18 through 11/6/18 by 11:59 p.m. Hawaii standard time on 12/6/18.  Respondents did not file this report by the deadline.

On 12/7/18, Commission staff notified Respondents via first class mail of their failure to file this report and that a fine would be imposed.  Respondents have not filed this report.

On 12/31/18, Commission staff sent Respondents a copy of the complaint and set the matter on the 1/9/19 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 any and all administrative penalties be deposited into the general fund pursuant to HRS §11-410(e), and order that Respondents file the Final Election Period Report within two (2) weeks of receipt of this order.

Commissioner Shoda 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 Lum.  Motion carried (4-0).

*Docket No. 19-27 – In Re the Matter of Defend Hawaii Now and Ernie Moritomo
Executive Director Izumi-Nitao reported that a complaint by the Executive Director had been filed against Defend Hawaii Now and Ernie Moritomo for the late filing of the 2nd Preliminary General Report and for failing to itemize expenditures for consultants, advertising agencies and similar firms in the Final Primary Report.

Respondent is a noncandidate committee that only makes independent expenditures that is registered with the Commission.  In the Organizational Report filed with the Commission, Respondent Moritomo is listed as the chairperson and treasurer of the noncandidate committee.

Pursuant to HRS §11-336(a)(2), Respondents were required to file the 2nd Preliminary General Report for the period covering 9/27/18 through 10/22/18 by 11:59 p.m. Hawaii standard time on 11/29/18.  Respondents did not file this report by the deadline.

On 10/30/18, Commission staff notified Respondents via first class mail of their failure to file this report and that a fine would be imposed.  On 11/14/18, Respondent Moritomo called Commission staff to seek assistance and electronically filed the 2nd Preliminary General Report.

On 11/15/18, Commission staff notified Respondents via first class mail that a fine of $300 would be assessed for the late filing of the report.  Respondents have not paid this fine.

Upon review of Respondents’ Final Primary Report for the period covering 7/28/18 through 8/11/18, Commission staff informed Respondent Moritomo that 2 expenditures on “Schedule B2 – Expenditures Made” had to be itemized.  Specifically, there were 2 expenditures to Media Maven LLC for advertising on 7/30/18 for $90,000 and on 7/31/18 for $21,181.69 in support of “TV Air Time Colleen Hanabusa.”  Pursuant to HRS §11-335(b)(3)(B), expenditures for consultants, advertising agencies and similar firms, must be itemized to permit a reasonable person to determine the ultimate intended recipient of the expenditure and its purpose.  Commission staff informed Respondent Moritomo on 11/27/18 of this requirement to itemize or breakdown these expenses.  Respondents have not itemized these expenditures.

On 1/2/19, Commission staff sent Respondents a copy of the complaint and set the matter on the 1/9/19 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 for failing to timely file the 2nd Preliminary General Report and $500 for failing to itemize its expenditures in the Final Primary Report, order that any and all administrative penalties be deposited into the general fund pursuant to HRS §11-340(g) and §11-410(e), and order that Respondents amend the Final Primary Report within two (2) weeks of receipt of this order.

Executive Director Izumi-Nitao noted that the $500 fine is the Commission staff’s recommendation and that the Commission has not fined for this violation before.

Discussion ensued about the requirement to breakdown the expenses for money spent on advertisement agencies and consultants.  Commissioner Shoda asked why it was necessary if they already report what caused the money to be spent.  Executive Director Izumi-Nitao explained that while it is apparent that the money was spent on airtime, the public need to know exactly how the money was dispersed (i.e., how much was spent on which TV stations).  Commissioner Markley added that getting itemized information from consultants should not be difficult.

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 Lum.  Motion carried (4-0).

Old Business
*Docket No. 19-23 – In Re the Matter of William Budd Dickinson, Jeff Turner, and Green Party of Hawaii
Executive Director Izumi-Nitao reported that a complaint by the Executive Director had been filed against William Budd Dickinson, Jeff Turner, and Green Party of Hawaii for the late filing of the Final Primary Report and for failing to timely report a contribution in the Preliminary Primary Report.

Respondent is a noncandidate committee that is registered with the Commission.  In the Organizational Report filed with the Commission, Respondent Dickinson is listed as the chairperson and Respondent Turner is the treasurer of the noncandidate committee.

Pursuant to HRS §11-331(b), all reports required to be filed by a noncandidate committee shall be certified as complete and accurate by the chairperson and treasurer.  HRS §11-335(a) and §11-336 require the treasurers of noncandidate committees to timely file accurate preliminary, final, and supplemental reports.  HRS §11-335 requires the authorized person in the case of a party to file preliminary, final, and supplemental reports that disclose all contributions received.

Respondents’ Final Primary Report for the period covering 7/28/18 through 8/11/18 was due no later than 11:59 p.m. Hawaii standard time on 8/31/18.  Respondents did not file the Final Primary Report by the deadline.

On 9/4/18, Commission staff notified Respondents via first class mail of their failure to file this report and that a fine would be imposed.

On 9/18/18, Respondent Turner called the Commission to inform Commission staff that when he filed the Preliminary Primary Report for the period covering 1/1/18 to 7/27/18 on 8/8/18, he did not have the committee’s bank statement.  Later, when he received the bank statement, he found an automatic deposit or contribution of $20 (i.e., $19.05 with a $0.95 service fee) from a contributor which he previously did not report.  Commission staff assisted Respondent Turner in amending his committee’s report to account for this contribution.  Respondent Turner filed an amended Preliminary Primary Report on 9/24/18.

On 9/24/18, Respondents electronically filed the Final Primary Report.

On 9/25/18, Commission staff notified Respondents via first class mail that a fine of $200 would be assessed for the late filing of the report.  Respondents have not paid this fine.

On 11/8/18, Commission staff notified Respondents via first class mail that a fine of $250 would be assessed for the unreported contribution in the original filing of the Preliminary Primary Report.  Respondents have not paid this fine.

Commission staff spoke with Respondent Turner on multiple occasions regarding payment of the fines and the complaint process.

On 12/4/18, Commission staff sent Respondents a copy of the Complaint and set the matter on the 12/19/18 Campaign Spending Commission Agenda.  At the 12/19/18 Commission meeting, the matter was continued to 1/9/19 to permit Respondents time to respond to the complaint.

In an email dated 1/3/19, Respondent Turner apologized for the errors and asked that the fine be reduced from $200 to $100 for the late filing of the Final Primary Report and from $250 to $50 for the failure to report a contribution for a total fine amount of $150.  With respect to the late filing of the Final Primary Report, Respondent Turner stated that he was overwhelmed at work, his advancing mental decline at nearly 75 years of age, and that he was late in reporting 32 cents in interest.  With respect to the failure to report a $20 contribution, Respondent Turner stated that he did not have access to an online funding site that someone else had set up so he did not know about the contribution and that now their system is set up so that they are properly notified.  Respondent Turner concluded that his proposed fine reductions are reasonable in relation to the dollar infractions involved and that the current fine total of $450 amounts to 25% of all the money the Green Party has in its bank account.  In an email dated 1/3/19, Respondent Dickinson requested that the fines be reduced to $150.

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 in Count I for the late filing of Final Primary Report, assess an administrative fine of $250 in Count II for the failure to report a contribution in the Preliminary Primary Report, and order that any and all administrative penalties be deposited into the general fund pursuant to HRS §11-340(g) and §11-410(e).

Discussion ensued about whether Respondent Turner could have accessed the online funding site to report the $20 contribution on time. Commissioner Shoda pointed out that if Respondent Turner did not have access to the online funding site, how could he have reported his $20 contribution on time. Associate Director Baldomero stated that he reported $410 in contribution within the same reporting period, which suggests that he had access to report that portion of the contribution. The Commissioners generally agreed that Respondent Turner could have accessed the online funding site in time to report the $20 contribution.

Commissioner Shoda 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 Lum.  Motion carried (4-0).

*Consideration, Discussion, Approval, and Update of Commission Legislation for the 2019 Legislative Session
General Counsel Kam reported that meetings with the legislature have commenced concerning the Commissions four (4) bills.  Recent meetings include meetings with Representative Sylvia Luke, Senate President Ron Kouchi, House Speaker Scott Saiki, and Senator Breene Harimoto.  General Counsel Kam stated that none of the legislators had concerns about the bills and hoped that they will support them.  Executive Director Izumi-Nitao reported that there have not been any other bills that has been introduced that could potentially impact the Commission.

Executive Director Izumi-Nitao and Associate Director Baldomero will be attending the budget briefings with Senate Ways and Means and House Finance on 1/14/19.

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

  • Final Election Period Report → 2 candidate committees & 6 noncandidate committees have not filed (4 of the 6 noncandidate committees have Attorney General referrals)
  • Preliminary General Report → 1 candidate committee has not filed
  • 2nd Preliminary General Report → 5 noncandidate committees have not filed (4 have Attorney General referrals)
  • 1st Preliminary General Report → 4 noncandidate committees have not filed (4 have Attorney General referrals)
  • Final Primary Report → 4 noncandidate committees have not filed (4 have Attorney General referrals)
  • Supplemental Report → 5 candidate committees have not filed (4 have Attorney General referrals)
  • Preliminary Primary Report → 4 noncandidate committees have not filed (4 have Attorney General referrals)

The next report due will be the Supplemental Report (reporting period 7/1/18 to 12/31/18 or 11/7/18 to 12/31/18) due on 1/31/19 for both candidate and noncandidate committees.

Executive Director Izumi-Nitao had no new updates on the Commission’s referrals to the Attorney General’s Office – Civil Recoveries Division.

With respect to compliance on prior matters before the Commission, General Counsel Kam reported the following:

  • Eric Ching – Defendant’s motion to dismiss was continued to 1/22/19
  • Alan Arakawa – Respondent has signed the settlement agreement
  • Kaniela Ing – Respondent has not made his January 2019 payment, but otherwise, has been paying his monthly fine payments and staff has yet to review his amended reports
  • Trinette Furtado – Respondent has requested a HRS chapter 91 contested case hearing. The Commission expressed interest in hiring a hearings officer. Commission staff will inquire with the Respondent again on what she did with the $1,900 in question as she has not provided any documentation explaining what she did with the money.

Update on Certification with Office of Elections and County Clerks
Associate Director Baldomero reported that Commission staff has been in communication with the Office of Elections and the county clerks concerning certification of elected officials.  To date, all elected officials who have been sworn in have been certified.  The remaining 64 Senate and House candidates still needed to be approved for certification by the Commission prior to being sworn in on 1/16/19.

Report on the 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 1/10/19.

EXECUTIVE SESSION
Chair Luke asked for a motion to convene Executive Session to consider and approve Executive Session minutes from the Commission meeting on 12/19/18.

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

Public Session reconvened at 11:07 a.m.

Chair Luke moved to adjourn the meeting.  Motion seconded by Commissioner Lum.  Motion carried (4-0).  Meeting adjourned at 11:10 a.m.

Next Meeting:
Rescheduled from Wednesday, February 13, 2019 to February 20, 2019 at 10 a.m.