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.

Sincerely,


Paul K. Ogden