SPECIAL ELECTION BOARD MEETING AGENDA
SPECIAL ELECTION BOARD MEETING AGENDA
MARCH 10, 2017 - 4:00 P.M. CITY HALL CONFERENCE ROOM 15 LOOCKERMAN PLAZA DOVER, DELAWARE
AGENDA ADDITIONS/DELETIONS 1. OFFICIAL NOTIFICATION TO THE BOARD OF ELECTIONS FROM THE STATE OF DELAWARE ELECTION COMMISSIONER’S OFFICE - FAILURE TO COMPLY WITH 15 DELAWARE CODE §7555 (D) (CERTIFICATE OF INTENTION OR STATEMENT OF ORGANIZATION) 2. ADJOURNMENT /tm S:\AGENDAS-MINUTES-PACKETS-PRESENTATIONS-ATT&EXH\Misc-Agendas\ELECTION BOARD\03-10-2017 Special Election Board Agenda.wpd
THE AGENDA ITEMS AS LISTED MAY NOT BE CONSIDERED IN SEQUENCE. PURSUANT TO 29 DEL. C. §10004(E)(2), THIS AGENDA IS SUBJECT TO CHANGE TO INCLUDE THE ADDITION OR THE DELETION OF ITEMS, INCLUDING EXECUTIVE SESSIONS, WHICH ARISE AT THE TIME OF THE MEETING.
From: To: Cc: Subject: Date: Importance:
McDowell, Kenneth "Bo" (Elect_COE) Stein, Jody; City Clerks Office COE_CampaignFinance; McDowell, Kenneth "Bo" (Elect_COE); Greenhow, Robin (Elect_COE); Webb, Cheryl (Elect_COE); Bueno, Millianie T (Elect_COE) City of Dover- Failure to Comply Friday, February 24, 2017 11:40:01 AM High
Dear Ms. Stein: Please forward this email to the members of the Board of Elections for the City of Dover. This email serves as an official notification to the Board of Elections for the City of Dover that the following candidates for City Council have failed to comply with Delaware Title 15 §7555 (d) in that they failed to file a Certification of Intention or a Statement of Organization with this office no later than 7 days after filing their candidacy. Candidates not in compliance with Title 15 §7555 (d) include: · Tanner Polce ·
Timothy Slavin
·
Fred Neil
Title 15 §7555 (f) requires, "Excepting candidacies otherwise provided for in the town charter and which have complied with the provisions of subsection (d) of this section within 5 days after the election, the Board of Elections of a municipality shall declare a candidate who has failed to comply with the provisions of subsection (d) of this section ineligible to be a candidate and shall order that candidate's name removed from the ballot subject to the appeal provisions of § 7552 of this title. Administrative errors or oversights by municipal or state officials shall not be grounds for declaring a person ineligible to be a candidate." If you have any questions or concerns, please do not hesitate to contact our office. The Campaign Finance Team: Office of the State Election Commissioner 905 S. Governors Ave, Suite 170 Dover, DE 19904 Phone: (302) 739-4277 Fax: (302) 739-6794 Email: [email protected] Respectfully, Kenneth "Bo" McDowell Campaign Finance, Manager IMPORTANT NOTICE TO E-MAIL RECIPIENT: This e-mail communication may contain or attach confidential information related to individuals and intended solely for the addressee. Please do not read, copy, or disseminate this communication (other than to return it to the sender) unless you are the intended addressee. If you have received this message in error, please return the e-mail to the sender or call the sender, and delete the message from you e-mailbox. If you are the intended recipient, federal and/or state law or contractual agreements with the
employer might require you to take steps to ensure the confidentiality of the information, whether retained electronically or reduced to hardcopy. If you have questions about your confidentially obligations you should speak to your organization's Privacy Official or legal counsel.
§ 7555 Candidates; eligibility; declaration of candidacy. (a)
Candidate eligibility shall be established in the town charter.
(b)
The procedure for declaration of candidacy shall be established in the town charter or by ordinance.
(c)
Unless otherwise specified in the town charter: (1)
A candidate for municipal government shall not have been convicted of a felony;
(2)
A candidate for the chief executive of a municipality shall have been a qualified elector of the municipality for at least 1 year prior to the date of the election and shall be at least 21 years of age on or before the date of the election; and
(3)
A candidate for a municipality's legislative body and all other elective offices shall have been a qualified elector of the municipality for at least 1 year prior to the date of the election, and shall be at least 21 years of age on or before the date of the election.
(d)
A candidate for municipal office shall file a Certificate of Intention or a Statement of Organization establishing a campaign committee with the State Election Commissioner no later than 7 days after declaring that candidate's candidacy. A Certificate of Intention is submitted by a candidate when the yearly salary for the office for which that candidate has filed a Declaration of Candidacy is less than $1,000 or who does not intend to receive more than $2,000 in contributions or expend more than $2000 for campaign expenses during the campaign pursuant to § 8004 of this title. Otherwise, no later than 7 days after making expenditures or receiving contributions on behalf of the candidate or committee, the candidate shall notify the Commissioner and file a Statement of Organization.
(e)
The State Election Commissioner shall notify a municipality's Board of Elections when a candidate has failed to comply with the provisions of subsection (d) of this section above.
(f)
Excepting candidacies otherwise provided for in the town charter and which have complied with the provisions of subsection (d) of this section within 5 days after the election, the Board of Elections of a municipality shall declare a candidate who has failed to comply with the provisions of subsection (d) of this section ineligible to be a candidate and shall order that candidate's name removed from the ballot subject to the appeal provisions of § 7552 of this title. Administrative errors or oversights by municipal or state officials shall not be grounds for declaring a person ineligible to be a candidate.
(g)
Officials receiving any document required in this section shall provide the person filing the document with a receipt showing the date and time that the document was filed and the name of the person who received the document.
(h)
Officials receiving any document required in this section shall immediately notify the person submitting the document of any deficiency in the submission. The person submitting the document shall have 2 business days to correct the deficiency even if the extension extends beyond the applicable deadline. If the person does not correct the deficiency by the end of the second business day, the municipality shall reject it.
(i)
All documents filed in accordance with this section are public records and a municipality shall make them available for inspection by the public in accordance with the Delaware Freedom of Information Act [Chapter 100 of Title 29].
(j)
Where the number of qualified candidates for an office is equal to or less than the number of seats up for election, the Board of Elections shall declare the candidate or candidates elected.
(k)
The State Election Commissioner shall prepare a package of Municipal Candidate Forms required by this section and instructions for completing and filing the forms. The Commissioner shall provide each municipality copies of the Municipal Candidate Forms package and publish the package on the State Election Commissioner's website. Municipalities and the Departments of Elections shall publish the Municipal Candidate Forms package on their websites, should such websites exist. Municipalities shall maintain a sufficient supply of Municipal Candidate Forms packages to meet demand.
(l)
A municipality shall submit the names of candidates for each office up for election to the Department of Elections no later than 1 business day following the filing deadlines for the elected positions.
(m)
A person may withdraw as a candidate by filing the form promulgated by the State Election Commissioner for that purpose with the municipality. (1)
If there are 2 or more candidates remaining on the ballot for the office and there are 14 or more days prior to the date of the election, the municipality shall mail new absentee ballots to all persons to whom it had issued absentee ballots. If an absentee voter does not return the replacement absentee ballot before 12 noon the day before the election, the municipality shall count the original ballot.
(2)
Any votes cast for a person who has withdrawn that person's own candidacy are invalid and the municipality shall not tally, canvass nor report such votes.
75 Del. Laws, c. 342, § 2; 70 Del. Laws, c. 186, § 1; 77 Del. Laws, c. 227, § 2.;
LAW OFFICES F. MICIIAEL I'ARh:OWSKI
I. BARin' G!iERh:J·:
PARKOWSKI, GuERKE
DA VII) S. SWAYZE CLAY T •• JESTER ,JOliN C. ANDRADE MAilK F. [)!INKLE I"'"'GA& I' A) WILLIAM A. DENMAN MICIIAEL W. ARRINGTON!"'"'""& no CIIIUSTINE 1'. SCIIILTZ MICHAEL W. TEICIIMAN
116 WEST W /\TEll STREET
P.O. Box 598 DOVER, DELAWARE 19903
302-678-3262 FAX: 302-678-9415 WEBPA(;E: www.pgslegal.com
1\:ASIIIF I. CIIO\VlliiRY ;"'"'""' .JAI\IES [), N!dTER ,JAMES[), GIHFFIN VINOXI' G. ROilERTSON ELIO BATTISTA, .IR .l!iDY M •• JONES WILLIAM
& SwAYZE
PRO!"ESSIONAL ASSOCIATION WILMINGTON OFFICE
1105 NORTII iVIARKET STREET, 19'" FLOOR WILMINGTON.I)E 19801 302-654-3300 FAX: 302-654-3033 REIIOilOTII BEACII OFFICE 1935-tC MILLER IWAD REIIOBOTII BEACII, DE 19971
302-226-87112 FAX: 302-226-8704
,J. \VALLS, .IR.I"''"''"l
1\:EITII II. ELLIS r""'"'CJ CAROLYN M. MCNEICE SilANE C.IIEilERLING
March 6, 2017 VIA EMAIL Councilman Timothy A. Slavin 24 Hazel Road Dover, DE 19901 RE: Compliance with 15 Del. C. §7555(d) Dear Councilman Slavin: At your request I have reviewed 15 Del. C. §7555 and in particular subpart (d) as well as official forms prepared by the Delaware Department of Elections and posted on the Department's website as a Municipal Candidate Guideline, as well as that certain email prepared by Kenneth "Bo" McDowell, Campaign Finance Manager at the State Department of Elections dated February 24, 2017 notifying the City of Dover Clerk and the City of Dover Board of Elections that you, along with two other City Council candidates, failed to comply with 15 Del. C. §7555( d) "in that they failed to file a Certification of Intention or a Statement of Organization with this ofTice no later than 7 days after filing their candidacy." I have also reviewed the entire Delaware Elections Code and the applicable portions of the Charter of the City of Dover and relevant ordinances.
In my opinion, you have timely and fully complied with 15 De/.C. §7555(d). I am also confirming that in my opinion under the applicable provisions of the Charter of the City of Dover, Article II, Section 5 (attached), since your seat was unopposed, you have properly retained your seat as the at large City Councilperson until the next general election in April 2021. Under this Section of the City Charter, sitting office holders retain their seat "until their successors have been duly elected and qualified." Since no one timely filed to oppose you in the April, 2017 election, your term continues until May 10, 2021 or until a successor is elected in 2021. In support of this opinion, I ofTer the following analysis:
Councilman Timothy A. Slavin Page 2 The Delaware Department of Elections, Campaign Finance Section, provides to the public and municipal candidates official guidance interpreting such candidate's compliance responsibilities under 15 Del. C. §7555. That guidance is a one page document which I note was formally submitted to you by Elaine Manlove, State Election Commissioner, as the official direction published on the State Elections website and supplied to municipalities for distribution to municipal candidates (the "Municipal Candidate Guideline" attached). The Municipal Candidate Guideline finds only one circumstance requiring a candidate to file a Certification of Intention: "When the elective office pays less than $1,000 per year and the candidate intends or expects to receive or spend no more than $2,000 in their campaign." Since the OfTice of Dover City Council person at large pays more than $1,000 annually there is no circumstance under which you would file a Certification of Intention under the Municipal Candidate Guideline and its interpretation of 15 Del. C. §7555(d). Therefore any reference in Mr. McDowell's email of February 24, 2017 citing a failure to file a Certification of Intention cannot apply to you since the position pays more than $1,000 annually under the directions promulgated by the Department of Elections in its Municipal Candidate Guideline. If the elective office pays more than $1,000 annually then the guidance requires the filing of a Statement of Organization by the candidate. Therefore, the only filing applicable to the City of Dover Councilperson at large seat is the Statement of Organization. Again Mr. McDowell's email contains an understandable error in the required time frame within which a Statement of Organization must be filed because the Statute contains conflicting filing deadlines and is most likely the root cause of the confusion in interpreting this provision by the Department of Elections. Mr. McDowell's February 24, 2017 notice incorrectly states that the Statement of Organization must be filed "no later than 7 days after filing" your candidacy. While the time frame of 7 days is accurate, the timing for when the 7 days commences to run in Mr. McDowell's notice is incorrect under a complete reading ofthe Statute. 15 Del. C. §7555( d) specifically states that the 7-day filing deadline for the Statement of Organization only commences "after making expenditures or receiving contributions on behalf of the candidate." (See attached highlighted excerpt from 15 Del.C. §7555(d)). In other words, the deadline to file the Statement of Organization with the Commissioner of Elections is 7 days after a candidate receives money or spends money on behalf of the candidate and no sooner. Since the triggering ofthe 7-day deadline is directly tied to whether or not a candidate receives or spends any money, the only factual question regarding your timely compliance with this provision is on what date, if any, did you receive or spend money for your candidacy. If you received no money and spent no money in furtherance of your candidacy then under a plain reading of this provision you would have no obligation to file a Statement of Organization with the Department of Elections. As discussed in detail below, the statute itself contains ambiguities on the applicable seven (7) day deadline which is the root cause of the confusion at the Commissioner of Elections and among candidates since the Statue contain two conflicting filing deadlines. The chronology of facts related to your candidacy are as follows:
Councilman Timothy A. Slavin Page 3 A. On January 10, 2017 you obtained fifteen signatures on the required City of Dover Nominating Petition nominating you for the Office of Councilman at large for the regular municipal election to be held on April 18, 2017 (Nominating Petition attached).
B. The next day on January 11, 2017 you acknowledged receipt from the City Clerk of the notice that you were to file forms required by the State Election Commissioner's office certifying that you had received the Municipal Candidate Guideline on that date (the same Municipal Candidate Guideline discussed above). C. On that same date, January 11, 2017, the City Clerk communicated a notification to the Filing Petition Notice Distribution List which included Elaine Manlove, State Commissioner of Elections at 6:20 p.m. In turn, Commissioner Manlove forwarded your Nominating Petition Notice to Kenneth "Bo" McDowell of her office at 6:43p.m. on January 11, 2017. D. Because you are a sitting City Council person you had not determined as of January 11, 2017 whether you would receive or expend any money in connection with your candidacy particularly in the event that no opponent filed for the same seat before the filing deadline. If no opponent filed prior to the filing deadline, under Article II, Section 5 of the Municipal Charter of the City of Dover you would automatically retain your seat for another term and there would be no election in connection with your seat and therefore no reason to expend funds or take in contributions on your behalf. Therefore, as of January 11, 2017, you took in no funds and expended no funds, and had no obligation to file a Statement of Organization with the Commissioner of Elections under 15 Del. C. §7555(d) for the reasons stated above and because the office pays more than $1 ,000, you never would have an obligation to file a Certification of Intention form. E. The deadline to file as a candidate for the Dover City Council seat at large was Friday, February 10, 2017, 4:30p.m. and indeed no opponent timely filed to contest the scat. Therefore, after 4:30 p.m. February 10, 2017 you had no expectation and indeed no reason to expend campaign funds or receive campaign funds since you had no opponent and under the provisions of the City Charter there would be no election for your seat and you would retain your seat for another term until at least May 10, 2021 or until replaced by an elected successor. I believe at that moment you were no longer a candidate for office. You were a sitting at large council person who retained his office for another full term.
The confusion on the 7-day filing requirement is found both in §7555(d) and the interpretation provided by the Commissioner of Elections Office. In effect, the Department of Elections is adding an extra filing requirement that is not properly specified under §7555(d). This confusion is caused by two contradictory timing provisions in subsection (d) which are irreconcilable as they are applied to the filing deadline for the Statement of Organization. In the first sentence of §7555(d) the code provides in pertinent part that a Certificate of Intention or a Statement of Organization shall be filed "no later than 7 days after declaring that candidate's candidacy." This is directly in conflict with the last sentence of the same paragraph which only requires the filing of a Statement of Organization "no later than 7 days after making expenditures or receiving contributions." For §7555(d) to
Councilman Timothy A. Slavin Page 4 make sense and to reconcile the two conflicting provisions, the only consistent way to read this section is to apply the "no later than 7 days after declaring that candidate's candidacy" deadline only to the filing of a Certificate of Intention. This makes sense because the Certificate of Intention is not tied to campaign spending since it is already capped at $2000 so it can be filed immediately. With that interpretation, then the separate timing test related to campaign financing properly is involved only for the filing of a Statement of Organization. In other words, if the 7-day rule requiring filing of either the Certificate of Intention or the Statement of Organization was an iron clad requirement timed only by the declaration of a candidacy, then the last sentence of §7555(d) would have absolutely no purpose whatsoever and be superfluous. Since legislative enactments are always interpreted to be purposeful and not nonsensical, separating the filing deadlines and distinguishing the Certificate ofintention filing deadline from the Statement of Organization deadline is proper statutory interpretation and makes sense.
There is a further reason for concluding that you have fully complied with the provisions of §7555 and that Mr. McDowell's February 24, 2017 notification is in error. An exemption is provided under §7555(£) which is applicable to your elected office: " (f) Excepting candidacies otherwise provided for in the Town Charter and which have complied with the provisions of subsection (d) of this section within five days after the election." This exception confirms that you are in full compliance with §7555 because as an unopposed sitting Councilperson, the Town Charter has provided that you no longer need to remain a candidate for office and indeed retain your seat due to lack of opposition. Also, because you filed both the Certificate of Intention and the Statement of Organization on February 10, 2017, a date which is more than five days from the election date of April 18, 2017, you have fully qualified for this (f) exemption and should not be before the City of Dover Board of Elections whatsoever. In conclusion, §7555(d) requires modification by the General Assembly because of its inconsistent provisions that do not properly provide clear guidance on the seven (7) day filing requirement for the circumstance of a municipal candidate for an office that pays more than $1 ,000 annually but who does not expend or receive campaign funds and ultimately has no opponent and retains his seat as is yo ur case. Also, because you are retainiug your Council seat as an unopposed sitting co unci lperson per the City Charter, the City Board of Elections has no jurisdiction in connection with your elective office. Very truly yours,
~ MARK F. DUNKLE MFDcl Encl. r-:\0\S iavin\slavi n letter 3-3- 17. docx
CHARTER OF THE CITY OF DOVER
3
plan adopted shall be deemed to be mandatory by the City of Dover and made a condition of employment and continuing employment. The city counci l shall have power to enact ordinances for a pension or retirement system for the police of the City of Dover, and to set aside a specia l fund for that purpose which fund sha ll be administered in accordance with ordinances made and provided in that behalf and the laws of the State of Delaware. Notwithstanding any statute to the contrary, the City of Dover sha ll have the power by ordinance to impose and coll ect a tax, to be paid by the transferor or transferee as determined by council, upon the transfer of real property within the city not to exceed one and a half percent (1.5%) or as amended by State law of the value of the real property as represented by the document transferring the property. The provisions of Section 5401 and Section 5403 of Chapter 54, Title 30 of the Delaware Code shall apply with respect to any realty transfer tax imposed by the City of Dover pursuant to the authority granted herein. The Council of the City of Dover may adopt an ordinance or ordinances to provide for the effective administration and regulation of any tax adopted pursuant to the authority conferred herein . If the taxing power and authority granted herein shall be exercised by way of a stamp affixed to a document, the recorder of deeds in and for Kent County shall not receive for record documents subject to said tax unless stamps provided by the City of Dover are affixed thereto showing payment of the tax . 77 Del. Laws, c. 130, § 4
ARTICLE II. MAYOR AND COUNCIL Section 4. General Powers and Duties. All powers of the city shall be vested in the city council, except as otherwise provided by law or this Charter, and the council shall provide for the exercise thereof and for the performance of all duties and obligations imposed on the city by law. 77 Del. Laws, c. 130, § 5 Sec. 5. Council to be legislative body; size; districts; terms of mayor and councilmen; qualifications. The council shall be the leg islative body of the city and composed of nine (9) members nominated and elected as herein provided . The city shall be divided into four (4) election districts, the boundaries of which shall be establi shed by council so that they are nearly equal in population based on the latest federal decennial census information. The district boundaries established for municipal elections shall be used for the next regular municipal election and shall continue in effect until the next succeeding federa l decennial census is made avai lable for use by municipalities in the State of Delaware. At the regu lar municipal election held in April of 2012, the mayor sha ll be elected at-large. The term of mayor elected at the April 2012 regu lar municipal election sha ll be for a period of three years, commencing on the second Monday in May following his/her election and continuing for a term of three years until the second Monday in May 2015, or until his/her successor has been duly elected and qualified. Thereafter, commencing with the regular municipal election to be held in April of 2015, the term of mayor shall be for a period of four years commencing on the second Monday in May following his/her election and continuing for a term of four years until the second Monday in May, or until his/her successor has been duly elected and qualified. At the regular municipal election held in April of 2012, four councilmen shall be elected by district voting from each of the districts of the city. The term of the councilmen elected at the April 2012 regular municipal election shall be for three years , commencing on the second Monday in May following their election and continuing for a term of three years until the second Monday in May 2015, or until their successors have been duly elected and qualified. At the regular municipal election held in April of 2013, five councilmen shall be elected, four by district voting being from the districts and one at-large. The term of the councilmen elected at the April 2013 regular municipal election shall be for a period of four years, commencing on the second Monday in May following their election and continuing for a period of four ~ay, or until tM 1r successors have bee11 dcrly-eleeteEl-a-Ad-q.ualifi.eJ....,.' " - - - - - - - ---..., years until the seco Thereafter, commencing with the regular municipal election to be held in April of 2013, the terms of the counci lmen shall be for a period of four years , commencing on the second Monday in May following their election and continuing for a term of four years until the second Monday in May, or until their successors have been duly elected and qualified . The · mayor and at-large councilman shall be elected at altemating b1enn1al regular municipal elections. In order to be el igible to be e ecte as mayor or as a member of council, t e person must as of the date of the election be: (1) A citizen of the United States and of the State of Del?.ware; (2) A resident of the city and having continuously resided therein or in an area annexed to the city during the two (2) years immediately preced ing the day of the election;
Delaware Campaign Fin:mcc Section Municipal Camlidaic Guideline
Welcome to Municipal Elections! In compliance w·ith the Delaware Campaign Finance law, all municipal candidates must either file a Cet'tificalion oflntenlion or fim11 a Candidate Committee no later than seven (7) days after declaring camlidacy. Please refer to the I)cJ
MARCH 10, 2017 - 4:00 P.M. CITY HALL CONFERENCE ROOM 15 LOOCKERMAN PLAZA DOVER, DELAWARE
AGENDA ADDITIONS/DELETIONS 1. OFFICIAL NOTIFICATION TO THE BOARD OF ELECTIONS FROM THE STATE OF DELAWARE ELECTION COMMISSIONER’S OFFICE - FAILURE TO COMPLY WITH 15 DELAWARE CODE §7555 (D) (CERTIFICATE OF INTENTION OR STATEMENT OF ORGANIZATION) 2. ADJOURNMENT /tm S:\AGENDAS-MINUTES-PACKETS-PRESENTATIONS-ATT&EXH\Misc-Agendas\ELECTION BOARD\03-10-2017 Special Election Board Agenda.wpd
THE AGENDA ITEMS AS LISTED MAY NOT BE CONSIDERED IN SEQUENCE. PURSUANT TO 29 DEL. C. §10004(E)(2), THIS AGENDA IS SUBJECT TO CHANGE TO INCLUDE THE ADDITION OR THE DELETION OF ITEMS, INCLUDING EXECUTIVE SESSIONS, WHICH ARISE AT THE TIME OF THE MEETING.
From: To: Cc: Subject: Date: Importance:
McDowell, Kenneth "Bo" (Elect_COE) Stein, Jody; City Clerks Office COE_CampaignFinance; McDowell, Kenneth "Bo" (Elect_COE); Greenhow, Robin (Elect_COE); Webb, Cheryl (Elect_COE); Bueno, Millianie T (Elect_COE) City of Dover- Failure to Comply Friday, February 24, 2017 11:40:01 AM High
Dear Ms. Stein: Please forward this email to the members of the Board of Elections for the City of Dover. This email serves as an official notification to the Board of Elections for the City of Dover that the following candidates for City Council have failed to comply with Delaware Title 15 §7555 (d) in that they failed to file a Certification of Intention or a Statement of Organization with this office no later than 7 days after filing their candidacy. Candidates not in compliance with Title 15 §7555 (d) include: · Tanner Polce ·
Timothy Slavin
·
Fred Neil
Title 15 §7555 (f) requires, "Excepting candidacies otherwise provided for in the town charter and which have complied with the provisions of subsection (d) of this section within 5 days after the election, the Board of Elections of a municipality shall declare a candidate who has failed to comply with the provisions of subsection (d) of this section ineligible to be a candidate and shall order that candidate's name removed from the ballot subject to the appeal provisions of § 7552 of this title. Administrative errors or oversights by municipal or state officials shall not be grounds for declaring a person ineligible to be a candidate." If you have any questions or concerns, please do not hesitate to contact our office. The Campaign Finance Team: Office of the State Election Commissioner 905 S. Governors Ave, Suite 170 Dover, DE 19904 Phone: (302) 739-4277 Fax: (302) 739-6794 Email: [email protected] Respectfully, Kenneth "Bo" McDowell Campaign Finance, Manager IMPORTANT NOTICE TO E-MAIL RECIPIENT: This e-mail communication may contain or attach confidential information related to individuals and intended solely for the addressee. Please do not read, copy, or disseminate this communication (other than to return it to the sender) unless you are the intended addressee. If you have received this message in error, please return the e-mail to the sender or call the sender, and delete the message from you e-mailbox. If you are the intended recipient, federal and/or state law or contractual agreements with the
employer might require you to take steps to ensure the confidentiality of the information, whether retained electronically or reduced to hardcopy. If you have questions about your confidentially obligations you should speak to your organization's Privacy Official or legal counsel.
§ 7555 Candidates; eligibility; declaration of candidacy. (a)
Candidate eligibility shall be established in the town charter.
(b)
The procedure for declaration of candidacy shall be established in the town charter or by ordinance.
(c)
Unless otherwise specified in the town charter: (1)
A candidate for municipal government shall not have been convicted of a felony;
(2)
A candidate for the chief executive of a municipality shall have been a qualified elector of the municipality for at least 1 year prior to the date of the election and shall be at least 21 years of age on or before the date of the election; and
(3)
A candidate for a municipality's legislative body and all other elective offices shall have been a qualified elector of the municipality for at least 1 year prior to the date of the election, and shall be at least 21 years of age on or before the date of the election.
(d)
A candidate for municipal office shall file a Certificate of Intention or a Statement of Organization establishing a campaign committee with the State Election Commissioner no later than 7 days after declaring that candidate's candidacy. A Certificate of Intention is submitted by a candidate when the yearly salary for the office for which that candidate has filed a Declaration of Candidacy is less than $1,000 or who does not intend to receive more than $2,000 in contributions or expend more than $2000 for campaign expenses during the campaign pursuant to § 8004 of this title. Otherwise, no later than 7 days after making expenditures or receiving contributions on behalf of the candidate or committee, the candidate shall notify the Commissioner and file a Statement of Organization.
(e)
The State Election Commissioner shall notify a municipality's Board of Elections when a candidate has failed to comply with the provisions of subsection (d) of this section above.
(f)
Excepting candidacies otherwise provided for in the town charter and which have complied with the provisions of subsection (d) of this section within 5 days after the election, the Board of Elections of a municipality shall declare a candidate who has failed to comply with the provisions of subsection (d) of this section ineligible to be a candidate and shall order that candidate's name removed from the ballot subject to the appeal provisions of § 7552 of this title. Administrative errors or oversights by municipal or state officials shall not be grounds for declaring a person ineligible to be a candidate.
(g)
Officials receiving any document required in this section shall provide the person filing the document with a receipt showing the date and time that the document was filed and the name of the person who received the document.
(h)
Officials receiving any document required in this section shall immediately notify the person submitting the document of any deficiency in the submission. The person submitting the document shall have 2 business days to correct the deficiency even if the extension extends beyond the applicable deadline. If the person does not correct the deficiency by the end of the second business day, the municipality shall reject it.
(i)
All documents filed in accordance with this section are public records and a municipality shall make them available for inspection by the public in accordance with the Delaware Freedom of Information Act [Chapter 100 of Title 29].
(j)
Where the number of qualified candidates for an office is equal to or less than the number of seats up for election, the Board of Elections shall declare the candidate or candidates elected.
(k)
The State Election Commissioner shall prepare a package of Municipal Candidate Forms required by this section and instructions for completing and filing the forms. The Commissioner shall provide each municipality copies of the Municipal Candidate Forms package and publish the package on the State Election Commissioner's website. Municipalities and the Departments of Elections shall publish the Municipal Candidate Forms package on their websites, should such websites exist. Municipalities shall maintain a sufficient supply of Municipal Candidate Forms packages to meet demand.
(l)
A municipality shall submit the names of candidates for each office up for election to the Department of Elections no later than 1 business day following the filing deadlines for the elected positions.
(m)
A person may withdraw as a candidate by filing the form promulgated by the State Election Commissioner for that purpose with the municipality. (1)
If there are 2 or more candidates remaining on the ballot for the office and there are 14 or more days prior to the date of the election, the municipality shall mail new absentee ballots to all persons to whom it had issued absentee ballots. If an absentee voter does not return the replacement absentee ballot before 12 noon the day before the election, the municipality shall count the original ballot.
(2)
Any votes cast for a person who has withdrawn that person's own candidacy are invalid and the municipality shall not tally, canvass nor report such votes.
75 Del. Laws, c. 342, § 2; 70 Del. Laws, c. 186, § 1; 77 Del. Laws, c. 227, § 2.;
LAW OFFICES F. MICIIAEL I'ARh:OWSKI
I. BARin' G!iERh:J·:
PARKOWSKI, GuERKE
DA VII) S. SWAYZE CLAY T •• JESTER ,JOliN C. ANDRADE MAilK F. [)!INKLE I"'"'GA& I' A) WILLIAM A. DENMAN MICIIAEL W. ARRINGTON!"'"'""& no CIIIUSTINE 1'. SCIIILTZ MICHAEL W. TEICIIMAN
116 WEST W /\TEll STREET
P.O. Box 598 DOVER, DELAWARE 19903
302-678-3262 FAX: 302-678-9415 WEBPA(;E: www.pgslegal.com
1\:ASIIIF I. CIIO\VlliiRY ;"'"'""' .JAI\IES [), N!dTER ,JAMES[), GIHFFIN VINOXI' G. ROilERTSON ELIO BATTISTA, .IR .l!iDY M •• JONES WILLIAM
& SwAYZE
PRO!"ESSIONAL ASSOCIATION WILMINGTON OFFICE
1105 NORTII iVIARKET STREET, 19'" FLOOR WILMINGTON.I)E 19801 302-654-3300 FAX: 302-654-3033 REIIOilOTII BEACII OFFICE 1935-tC MILLER IWAD REIIOBOTII BEACII, DE 19971
302-226-87112 FAX: 302-226-8704
,J. \VALLS, .IR.I"''"''"l
1\:EITII II. ELLIS r""'"'CJ CAROLYN M. MCNEICE SilANE C.IIEilERLING
March 6, 2017 VIA EMAIL Councilman Timothy A. Slavin 24 Hazel Road Dover, DE 19901 RE: Compliance with 15 Del. C. §7555(d) Dear Councilman Slavin: At your request I have reviewed 15 Del. C. §7555 and in particular subpart (d) as well as official forms prepared by the Delaware Department of Elections and posted on the Department's website as a Municipal Candidate Guideline, as well as that certain email prepared by Kenneth "Bo" McDowell, Campaign Finance Manager at the State Department of Elections dated February 24, 2017 notifying the City of Dover Clerk and the City of Dover Board of Elections that you, along with two other City Council candidates, failed to comply with 15 Del. C. §7555( d) "in that they failed to file a Certification of Intention or a Statement of Organization with this ofTice no later than 7 days after filing their candidacy." I have also reviewed the entire Delaware Elections Code and the applicable portions of the Charter of the City of Dover and relevant ordinances.
In my opinion, you have timely and fully complied with 15 De/.C. §7555(d). I am also confirming that in my opinion under the applicable provisions of the Charter of the City of Dover, Article II, Section 5 (attached), since your seat was unopposed, you have properly retained your seat as the at large City Councilperson until the next general election in April 2021. Under this Section of the City Charter, sitting office holders retain their seat "until their successors have been duly elected and qualified." Since no one timely filed to oppose you in the April, 2017 election, your term continues until May 10, 2021 or until a successor is elected in 2021. In support of this opinion, I ofTer the following analysis:
Councilman Timothy A. Slavin Page 2 The Delaware Department of Elections, Campaign Finance Section, provides to the public and municipal candidates official guidance interpreting such candidate's compliance responsibilities under 15 Del. C. §7555. That guidance is a one page document which I note was formally submitted to you by Elaine Manlove, State Election Commissioner, as the official direction published on the State Elections website and supplied to municipalities for distribution to municipal candidates (the "Municipal Candidate Guideline" attached). The Municipal Candidate Guideline finds only one circumstance requiring a candidate to file a Certification of Intention: "When the elective office pays less than $1,000 per year and the candidate intends or expects to receive or spend no more than $2,000 in their campaign." Since the OfTice of Dover City Council person at large pays more than $1,000 annually there is no circumstance under which you would file a Certification of Intention under the Municipal Candidate Guideline and its interpretation of 15 Del. C. §7555(d). Therefore any reference in Mr. McDowell's email of February 24, 2017 citing a failure to file a Certification of Intention cannot apply to you since the position pays more than $1,000 annually under the directions promulgated by the Department of Elections in its Municipal Candidate Guideline. If the elective office pays more than $1,000 annually then the guidance requires the filing of a Statement of Organization by the candidate. Therefore, the only filing applicable to the City of Dover Councilperson at large seat is the Statement of Organization. Again Mr. McDowell's email contains an understandable error in the required time frame within which a Statement of Organization must be filed because the Statute contains conflicting filing deadlines and is most likely the root cause of the confusion in interpreting this provision by the Department of Elections. Mr. McDowell's February 24, 2017 notice incorrectly states that the Statement of Organization must be filed "no later than 7 days after filing" your candidacy. While the time frame of 7 days is accurate, the timing for when the 7 days commences to run in Mr. McDowell's notice is incorrect under a complete reading ofthe Statute. 15 Del. C. §7555( d) specifically states that the 7-day filing deadline for the Statement of Organization only commences "after making expenditures or receiving contributions on behalf of the candidate." (See attached highlighted excerpt from 15 Del.C. §7555(d)). In other words, the deadline to file the Statement of Organization with the Commissioner of Elections is 7 days after a candidate receives money or spends money on behalf of the candidate and no sooner. Since the triggering ofthe 7-day deadline is directly tied to whether or not a candidate receives or spends any money, the only factual question regarding your timely compliance with this provision is on what date, if any, did you receive or spend money for your candidacy. If you received no money and spent no money in furtherance of your candidacy then under a plain reading of this provision you would have no obligation to file a Statement of Organization with the Department of Elections. As discussed in detail below, the statute itself contains ambiguities on the applicable seven (7) day deadline which is the root cause of the confusion at the Commissioner of Elections and among candidates since the Statue contain two conflicting filing deadlines. The chronology of facts related to your candidacy are as follows:
Councilman Timothy A. Slavin Page 3 A. On January 10, 2017 you obtained fifteen signatures on the required City of Dover Nominating Petition nominating you for the Office of Councilman at large for the regular municipal election to be held on April 18, 2017 (Nominating Petition attached).
B. The next day on January 11, 2017 you acknowledged receipt from the City Clerk of the notice that you were to file forms required by the State Election Commissioner's office certifying that you had received the Municipal Candidate Guideline on that date (the same Municipal Candidate Guideline discussed above). C. On that same date, January 11, 2017, the City Clerk communicated a notification to the Filing Petition Notice Distribution List which included Elaine Manlove, State Commissioner of Elections at 6:20 p.m. In turn, Commissioner Manlove forwarded your Nominating Petition Notice to Kenneth "Bo" McDowell of her office at 6:43p.m. on January 11, 2017. D. Because you are a sitting City Council person you had not determined as of January 11, 2017 whether you would receive or expend any money in connection with your candidacy particularly in the event that no opponent filed for the same seat before the filing deadline. If no opponent filed prior to the filing deadline, under Article II, Section 5 of the Municipal Charter of the City of Dover you would automatically retain your seat for another term and there would be no election in connection with your seat and therefore no reason to expend funds or take in contributions on your behalf. Therefore, as of January 11, 2017, you took in no funds and expended no funds, and had no obligation to file a Statement of Organization with the Commissioner of Elections under 15 Del. C. §7555(d) for the reasons stated above and because the office pays more than $1 ,000, you never would have an obligation to file a Certification of Intention form. E. The deadline to file as a candidate for the Dover City Council seat at large was Friday, February 10, 2017, 4:30p.m. and indeed no opponent timely filed to contest the scat. Therefore, after 4:30 p.m. February 10, 2017 you had no expectation and indeed no reason to expend campaign funds or receive campaign funds since you had no opponent and under the provisions of the City Charter there would be no election for your seat and you would retain your seat for another term until at least May 10, 2021 or until replaced by an elected successor. I believe at that moment you were no longer a candidate for office. You were a sitting at large council person who retained his office for another full term.
The confusion on the 7-day filing requirement is found both in §7555(d) and the interpretation provided by the Commissioner of Elections Office. In effect, the Department of Elections is adding an extra filing requirement that is not properly specified under §7555(d). This confusion is caused by two contradictory timing provisions in subsection (d) which are irreconcilable as they are applied to the filing deadline for the Statement of Organization. In the first sentence of §7555(d) the code provides in pertinent part that a Certificate of Intention or a Statement of Organization shall be filed "no later than 7 days after declaring that candidate's candidacy." This is directly in conflict with the last sentence of the same paragraph which only requires the filing of a Statement of Organization "no later than 7 days after making expenditures or receiving contributions." For §7555(d) to
Councilman Timothy A. Slavin Page 4 make sense and to reconcile the two conflicting provisions, the only consistent way to read this section is to apply the "no later than 7 days after declaring that candidate's candidacy" deadline only to the filing of a Certificate of Intention. This makes sense because the Certificate of Intention is not tied to campaign spending since it is already capped at $2000 so it can be filed immediately. With that interpretation, then the separate timing test related to campaign financing properly is involved only for the filing of a Statement of Organization. In other words, if the 7-day rule requiring filing of either the Certificate of Intention or the Statement of Organization was an iron clad requirement timed only by the declaration of a candidacy, then the last sentence of §7555(d) would have absolutely no purpose whatsoever and be superfluous. Since legislative enactments are always interpreted to be purposeful and not nonsensical, separating the filing deadlines and distinguishing the Certificate ofintention filing deadline from the Statement of Organization deadline is proper statutory interpretation and makes sense.
There is a further reason for concluding that you have fully complied with the provisions of §7555 and that Mr. McDowell's February 24, 2017 notification is in error. An exemption is provided under §7555(£) which is applicable to your elected office: " (f) Excepting candidacies otherwise provided for in the Town Charter and which have complied with the provisions of subsection (d) of this section within five days after the election." This exception confirms that you are in full compliance with §7555 because as an unopposed sitting Councilperson, the Town Charter has provided that you no longer need to remain a candidate for office and indeed retain your seat due to lack of opposition. Also, because you filed both the Certificate of Intention and the Statement of Organization on February 10, 2017, a date which is more than five days from the election date of April 18, 2017, you have fully qualified for this (f) exemption and should not be before the City of Dover Board of Elections whatsoever. In conclusion, §7555(d) requires modification by the General Assembly because of its inconsistent provisions that do not properly provide clear guidance on the seven (7) day filing requirement for the circumstance of a municipal candidate for an office that pays more than $1 ,000 annually but who does not expend or receive campaign funds and ultimately has no opponent and retains his seat as is yo ur case. Also, because you are retainiug your Council seat as an unopposed sitting co unci lperson per the City Charter, the City Board of Elections has no jurisdiction in connection with your elective office. Very truly yours,
~ MARK F. DUNKLE MFDcl Encl. r-:\0\S iavin\slavi n letter 3-3- 17. docx
CHARTER OF THE CITY OF DOVER
3
plan adopted shall be deemed to be mandatory by the City of Dover and made a condition of employment and continuing employment. The city counci l shall have power to enact ordinances for a pension or retirement system for the police of the City of Dover, and to set aside a specia l fund for that purpose which fund sha ll be administered in accordance with ordinances made and provided in that behalf and the laws of the State of Delaware. Notwithstanding any statute to the contrary, the City of Dover sha ll have the power by ordinance to impose and coll ect a tax, to be paid by the transferor or transferee as determined by council, upon the transfer of real property within the city not to exceed one and a half percent (1.5%) or as amended by State law of the value of the real property as represented by the document transferring the property. The provisions of Section 5401 and Section 5403 of Chapter 54, Title 30 of the Delaware Code shall apply with respect to any realty transfer tax imposed by the City of Dover pursuant to the authority granted herein. The Council of the City of Dover may adopt an ordinance or ordinances to provide for the effective administration and regulation of any tax adopted pursuant to the authority conferred herein . If the taxing power and authority granted herein shall be exercised by way of a stamp affixed to a document, the recorder of deeds in and for Kent County shall not receive for record documents subject to said tax unless stamps provided by the City of Dover are affixed thereto showing payment of the tax . 77 Del. Laws, c. 130, § 4
ARTICLE II. MAYOR AND COUNCIL Section 4. General Powers and Duties. All powers of the city shall be vested in the city council, except as otherwise provided by law or this Charter, and the council shall provide for the exercise thereof and for the performance of all duties and obligations imposed on the city by law. 77 Del. Laws, c. 130, § 5 Sec. 5. Council to be legislative body; size; districts; terms of mayor and councilmen; qualifications. The council shall be the leg islative body of the city and composed of nine (9) members nominated and elected as herein provided . The city shall be divided into four (4) election districts, the boundaries of which shall be establi shed by council so that they are nearly equal in population based on the latest federal decennial census information. The district boundaries established for municipal elections shall be used for the next regular municipal election and shall continue in effect until the next succeeding federa l decennial census is made avai lable for use by municipalities in the State of Delaware. At the regu lar municipal election held in April of 2012, the mayor sha ll be elected at-large. The term of mayor elected at the April 2012 regu lar municipal election sha ll be for a period of three years, commencing on the second Monday in May following his/her election and continuing for a term of three years until the second Monday in May 2015, or until his/her successor has been duly elected and qualified. Thereafter, commencing with the regular municipal election to be held in April of 2015, the term of mayor shall be for a period of four years commencing on the second Monday in May following his/her election and continuing for a term of four years until the second Monday in May, or until his/her successor has been duly elected and qualified. At the regular municipal election held in April of 2012, four councilmen shall be elected by district voting from each of the districts of the city. The term of the councilmen elected at the April 2012 regular municipal election shall be for three years , commencing on the second Monday in May following their election and continuing for a term of three years until the second Monday in May 2015, or until their successors have been duly elected and qualified. At the regular municipal election held in April of 2013, five councilmen shall be elected, four by district voting being from the districts and one at-large. The term of the councilmen elected at the April 2013 regular municipal election shall be for a period of four years, commencing on the second Monday in May following their election and continuing for a period of four ~ay, or until tM 1r successors have bee11 dcrly-eleeteEl-a-Ad-q.ualifi.eJ....,.' " - - - - - - - ---..., years until the seco Thereafter, commencing with the regular municipal election to be held in April of 2013, the terms of the counci lmen shall be for a period of four years , commencing on the second Monday in May following their election and continuing for a term of four years until the second Monday in May, or until their successors have been duly elected and qualified . The · mayor and at-large councilman shall be elected at altemating b1enn1al regular municipal elections. In order to be el igible to be e ecte as mayor or as a member of council, t e person must as of the date of the election be: (1) A citizen of the United States and of the State of Del?.ware; (2) A resident of the city and having continuously resided therein or in an area annexed to the city during the two (2) years immediately preced ing the day of the election;
Delaware Campaign Fin:mcc Section Municipal Camlidaic Guideline
Welcome to Municipal Elections! In compliance w·ith the Delaware Campaign Finance law, all municipal candidates must either file a Cet'tificalion oflntenlion or fim11 a Candidate Committee no later than seven (7) days after declaring camlidacy. Please refer to the I)cJ
