Saturday, February 20, 2010

Marion County Election Board Okays Campaigns Using Third Parties to Pay Bills and Conceal Expenditures, Allows Wishard to Hide Nearly $1 Million Spent

Apparently, unbenkownst to me, Patty Hebenstreit, the Treasurer of the Citizen's for Wishard campaign filed an answer to my complaint that Citizens for Wishard had used a third party vendor, the PR firm, Hirons and Associate, to pay campaign bills and thus conceal the true receipient of $845,187.59 paid by C4W to Hirons. Ms. Hebenstreit, who is an attorney, never bothered to send me her response, even though that is standard practice for attorneys and one might say an ethical requirement of practicing law. Of course, neither did the Election Board, which didn't give me a chance to file a reply to the response. Not that there was much to respond to. Here is Ms. Hebenstreit's response:
Dear Mr. Sullivan,

Thank you for the opportunity to respond to questioins regarding the reports of receipts and expenditures filed by Citizens for Wishard. Having received yourinquiry, I reviewed the reports of receipts and expenditures as originally filed by Citizens for Wishard and the law regarding campaign election reports. All orginal filings by Citizens for Wishard were timely, accurate, complete and in full compliance with the law. If you have any additional questions, please let me know.

Patty Hebenstreit
Former Treasurer
Citizens for Wishard (Dissolved 1-19-2010)
Ms. Hebenstreit did not even bother to sign the copy forwarded to me by the Election Board. Yet in a 2 1/2 page letter I received today from Laurel Judkins, Director of Elections, Marion County Election Board, this explanation was deemed sufficient. According to Ms. Judkins, it is perfectly okay for a campaign to use a third party to pay its bills and that only the "direct" payment to the third party need be reported.

Here is the response I will be hand-delivering on Monday:

February 22, 2010

Laurel Judkins
Director of Elections
Marion County Election Board
200 E. Washington Street, Suite W-144
Indianapolis, IN 46204

Re: Complaint Against Citizen for Wishard Political Action Committee

Dear Ms. Judkins:

I am in receipt of your February 18, 2010 letter dismissing my complaint.

First, I would point out that your office never forwarded Citizen for Wishard’s (C4W) response to my original complaint until you provided it with this decision. Having worked at a state agency that took public complaints and processed them, I can report that the best practice is for the agency to provide the original Complainant with the response and allow him or her to provide a reply to that response. That allows the Complainant to address any factual or legal misstatements in the response. Your office failed to afford me that opportunity leaving me completely unaware of Wishard’s response.

Second, I am not sure how the Board has already ruled on my complaint when the Board has not even met since I filed it. There needs to be a vote by the Election Board on my complaint at a public meeting. (I would point out that any administrative appeal would require final, formal Board action to take that appeal). The notion that a complaint can just be summarily dismissed (without any sort of investigation on your part) or without even so much as a vote by the Election Board, is to render the complaint process meaningless.

Finally, I find your interpretation the campaign statutes to be off-base, to say the least. The first step in statutory interpretation is to determine legislative intent. The second step is to effectuate that legislative intent in your interpretation and application of the law. Bushong v. Williamson, 790 N.E. 2d 467, 471 (Ind. 2003); Indiana Family and Social Services Administration v. Pickett, 903 N.E. 2d 171, 176 (Ind. App. 2009). Your letter makes no effort whatsoever to ascertain legislative intent or to effectuate it.

The Indiana Court of Appeals in Shrenger v. Caesers Indiana, 825 N.E. 2d 879, 881 (Ind. Ct. App. 2005), trans. denied, explains the concept well:

When interpreting statutes, our foremost objective is to determine and effect legislative intent. Statutes must be construed to give effect to legislative intent, and we must give deference to such intent whenever possible. We consider the goals of the statute and the reasons and policy underlying its enactment. We examine and interpret a statute as a whole, giving words their common and ordinary meaning and do not overemphasize a strict, literal, or selective reading of individual words. We take words and phrases in their plan, ordinary, and usual meaning unless a different purpose is manifested by the statute. Every word must be given effect and meaning where possible and no part is to be held meaningless if it can be reconciled with the rest of the statute. We ascertain the meaning and intention of the legislature not only from the phraseology of the statute but also consider its nature, design, and the consequences which flow from the reasonable alternative interpretations of the statute.
What is the legislative intent in requiring that a campaign report expenditures? The obvious legislative intent is that the Indiana General Assembly wants public disclosure of who is actually receiving campaign money. When a campaign uses a third party vendor to pay campaign bills, as Wishard clearly did, it undermines the legislature’s intent in passing the campaign expenditure law.

Additionally, your opinion is not only in violation of the obvious legislative intent in passing the law, it is in violation of the express language of IC 3-9-5-14(b) which states:
(b) The report of each committee's treasurer must disclose the following:

(8) The full name, mailing address, occupation, and principal place of business, if any, of each person other than a committee to whom an expenditure was made by the committee or on behalf of the committee.
Contrary to your claim, that provision is not limited to in-kind expenditures. It also covers the situation where a third party is paying bills on behalf of a campaign committee. Under that section, C4W has a duty to report who is really receiving the campaign expenditures it is making. With regard to the C4W report, we are not talking a few thousand dollars. We are talking $845,187.59 in campaign expenditures that C4W has shielded from public scrutiny by using its PR firm to pay its campaign bills. It is clear from your letter that your office did no investigation whatsoever to determine the nature of the nearly one million dollar in expenses listed as going to Hirons on the report.

I will expect the Board to consider my complaint at a public meeting and to vote on it. In the meantime, I would urge the Board to reconsider its decision to condone a campaign practice that would allow candidates and political action committees to conceal campaign expenditures by using a third party to pay campaign bills.


Paul K. Ogden


Gary R. Welsh said...

This really sets a dangerous precedent, Paul. It effectively removes any transparency from the disclosure requirements. That election board is nothing but a bunch of political hacks. I don't know why the hell that Mark Sullivan was ever put in charge of it. He has a very shady past.

Paul K. Ogden said...


You're sets a horrendous precedent. You could do the same thing on the contribution side. In fact, I would say the Wishard people did exactly that - steering contributors to give to non-profits instead of indivdiuals. Then those non-profits bundled the money and paid more than $1 million to the campaign. The effect was to make political contributions tax deductible, something the IRS should be interested in.

Gary R. Welsh said...

Dan Sigler, the special prosecutor in the Matt Kelty case, would take an entirely different view of the law than our worthless election board. I've come to realize that the election board is not interested in enforcing the law; it's simply there to cover up illegal activities by corrupt politicians. An ethical attorney could never conduct business the way that election board operates. Sadly, we have three attorneys on that board who have no respect for the rule of law.

Gary R. Welsh said...

Here's an old story from the Evansville Courier Press:

Two retired Indiana State Police investigators covered up evidence 18 years ago implicating a former Pike County prosecutor in an unsolved murder, according to an indictment.

A grand jury has indicted Larry Eck and James Verle on felony perjury charges. Both men posted $750 cash bond and were released Wednesday from the Pike County Jail.

Rick A. Deffendall, 37, of Petersburg, Ind., was shot several times June 15, 1988, in his Oakland City, Ind., home.

Then-prosecutor Mark Sullivan had an ongoing romantic relationship with Deffendall's ex-wife, according to the indictment filed Tuesday in Pike County Circuit Court. He was never questioned by detectives.

Supervisors at the Evansville post issued orders that

Sullivan "was not to be investigated as a suspect, and/or that certain information regarding Sullivan was not to be documented in the State Police file," the indictment said.

Eck declined comment Thursday. He was a sergeant and supervised the investigation of Deffendall's death.

"Larry Eck's denial of Mark Sullivan's status as a suspect (was) intended to discourage the full and complete investigation of the murder of Rick A. Deffendall by this Grand Jury," the indictment said.

Verle, a lieutenant at the time Deffendall was killed, removed Trooper Frank Coleman from the investigation after he presented a list of people to be interviewed that included Sullivan. Verle cited "the need to 'maintain good relations with the Pike County Prosecutor's office,'" the indictment said

Officials ordered that documents on Sullivan containing a polygraph report, details about a trip to Florida and medical records be kept out of police files.

"The Indiana State Police, through its leadership at the time in question, has willfully covered up numerous items of evidence which implicate Mark Sullivan as either a person with potential motivation to murder Rick Deffendall and/or a person involved in trafficking in illegal drugs with Deffendall and/or persons in common with him," the indictment said.

Verle and Eck are accused of lying during grand jury interviews Sept. 28 and Oct. 6.

Verle and Sullivan, who has since moved to Terre Haute, Ind., could not be reached for comment. Pike County Sheriff Todd Meadors said he did not believe Sullivan had a criminal record in Pike County.

Pike County Chief Deputy Prosecutor Darrin McDonald did not return a phone message.

Marycatherine Barton said...

Beth White, our Clerk up for reelection, needs to explain her stand on these issues you are raising, and speaking for the vast majority, I am sure, wholeheartedly agree with Attorney Ogden, and appreciate his pursuing this complaint on our behalf. If Indianapolis is to be called a first class city, it needs a first class election board.

Marycatherine Barton said...

And here reading that newspaper article AI dug up, gave me chills. I wonder if Ed Treacy or Tom John will call for the resignation of Mark Sullivan as chair of the Marion County Election Board. I can dream, can't I.