special election board
SPECIAL ELECTION BOARD A Special Election Board meeting was held on March 10, 2017 at 4:00 p.m. with Interim Chair Raymond presiding. Members present were Mr. Caldwell, Dr. Matthews, Mrs. McDowell Boyer, and Mrs. McDowell. Members of Council present were Mr. Neil and Mr. Lewis (arrived at 4:11 p.m.). Deputy City Solicitor Pepper was also present. AGENDA ADDITIONS/DELETIONS Dr. Matthews moved for approval of the agenda, seconded by Mrs. McDowell Boyer and unanimously carried. 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) Members were provided the following documents: 1) an email from Mrs. Traci McDowell, City Clerk, dated March 8, 2017 regarding City of Dover - Failure to Comply (Attachment #1); 2) Filings Required by the State Election Commissioners Office memorandum and Delaware Elections Campaign Finance Section Municipal Candidate Guidelines (Attachment #2); 4) a memorandum dated March 10, 2017 from Mr. Fred A. Neil regarding State Election Board Notice of a Violation (Attachment #3); an email dated Wednesday, March 8, 2017 from Mr. Fred A. Neil regarding City of Dover - Failure to Comply (Attachment #4); and an email dated March 1, 2017 from Mr. Fred A. Neil regarding Special Election Board Meeting to Consider Failure to Comply (Attachment #5). Mr. William Pepper, Deputy City Solicitor, referred to the email from Mr. Kenneth “Bo” McDowell, Campaign Finance, Manager, Office of the State Election Commissioner, to the City Clerk’s Office dated February 24, 2017 regarding City of Dover - Failure to Comply, which alleged that three (3) candidates for the upcoming election were not in compliance and therefore must be removed from the ballot. Referring to Mrs. McDowell’s email dated March 8, 2017 regarding City of Dover Failure to Comply, Mr. Pepper noted that this email included Mr. Pepper’s reply to Mr. McDowell. Mr. Pepper stated that, in his reply, he suggested that he did not think that the filing requirements had been triggered because, as he read 15 Delaware Code §7555 (d), these requirements are triggered by one (1) of three (3) things: the office pays less than $1,000, the candidate intends to or does receive more than $2,000 in campaign contributions, or the candidate intends to spend or does spend more than $2,000 in campaign expenses. Mr. Pepper advised that the offices of members of Council are paid more than $1,000 per year, and he had seen no suggestion that any of the candidates received contributions or had expenses in excess of $2,000. Mr. Raymond stated that he was wondering why members were discussing this matter at all in light of the first letter received from Mr. McDowell, because Mr. Raymond stated this would be of an evidentiary nature. He questioned if this discussion would be beyond the purview of the current meeting, noting that it was not a hearing. In response, Mr. Pepper advised that it was a hearing, to some extent, to hear from the candidates. Mr. Raymond stated that he was not sure that he agreed, noting that members had received the first letter from Mr. McDowell that said that these candidates had been found not in compliance, unless there was a misunderstanding, and Mr. Raymond had not seen anything to counter-indicate that from the State. He advised that the State had not disagreed and had just sent amending materials. He quoted from Mr. McDowell’s email dated
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February 24, 2017, which stated that “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.” Mr. Raymond questioned if these were matters that the State needed to discuss on appeal. Dr. Laws asked if someone was present to represent the State Board of Elections. Responding, Mr. Pepper stated that he did not believe so and noted that the State had not submitted anything to the Board. Mr. Raymond indicated that the exception was the two (2) letters that were received, and stated that one (1) letter instructed members clearly on what to do. He advised that he was open to new ideas; however, taking evidence or trying to decide who did what and when was not in the Board’s purview. Mr. Raymond noted that the State had stated that the candidates were not in compliance and the remedy. Mr. Pepper stated that the issue before the Board was whether or not they were in compliance. Mr. Caldwell asked if it would be appropriate for the Board to hear Mr. Neil’s, Mr. Polce’s, and Mr. Slavin’s cases all together or individually. In response, Mr. Raymond indicated that he was having trouble because this was not the members’ function in the meeting. Responding, Mr. Caldwell stated that members must make a decision. Mr. Raymond indicated that members did not have to make a decision since this had already been decided, noting that the email stated that, “These candidates are not in compliance.” Mr. Pepper advised that he thought the State Elections Department was mistaken by saying that they were not in compliance, but it would be the Election Board’s decision as to whether they are struck from the ballot. Dr. Laws stated that she found it strange that this was occurring to three (3) people at the same time and questioned what it was that was not clear. She questioned how a council president could not know when the date was, noting that she was not saying that he was guilty or not guilty; however, this was not the first time he had run. Dr. Laws asked why there was confusion, unless there was something in the State code that misleads people or was omitted. Mr. Mark Dunkle, Attorney, Parkowski, Guerke & Swayze, stated that he was representing Council President Slavin. He referred to his letter dated March 6, 2017 to Mr. Slavin regarding Compliance with 15 Del.C. §7555(d), stating that he had tried to analyze the statute. Mr. Dunkle indicated that the State Department of Elections publishes guidance for municipal candidates, and that guidance was prepared by that office and distributed to municipal candidates on the list. He noted that, on the past Monday, they changed this guidance significantly and materially and, by changing it, they changed the rules. Mr. Dunkle stated that the rules that they published for two (2) years before last Monday were wrong and were giving incorrect guidance to candidates, which he stated related to Dr. Laws’ point about something being wrong. He indicated that the guidance that was published coincided with Mr. Pepper's advice in the beginning. Mr. Dunkle stated that, in his opinion, the way that guidance was published, none of these candidates were in violation.
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Mr. Raymond asked Mr. Dunkle to cease presenting evidence, noting that Mr. Dunkle had answered the question about a conflict, which members understood. Mr. Raymond indicated that this was a State matter. Mr. Dunkle stated that Mr. Raymond’s comment was duly noted; however, he needed to make a record and proceed. Mr. Raymond asked Mr. Dunkle not to present evidence at this meeting, stating that it was not, and would not be, an evidentiary proceeding. Mr. Dunkle stated that his submissions had been made for the record and he noted that there was also an affidavit. He requested that he be permitted to present his client’s case and, if not permitted, it would be a denial of due process. Mr. Raymond reiterated that this was not an evidentiary hearing. Mr. Dunkle responded that it had not been made clear to him that it was not an evidentiary hearing. Mr. Dunkle advised that in the law that the Chairman had cited and read verbatim, he did not read the last sentence in §7555(f), which stated that “Administrative errors or oversights by municipal or state officials shall not be grounds for declaring a person ineligible to be a candidate.” Mr. Raymond stated that members were acting on the letter from the State, which advised that three (3) candidates from Dover were not in compliance. He noted that in a letter that followed, the State had outlined that the appeal procedure would be “a walk in the park” because their appeals would be accepted. Mr. Dunkle stated that the State Election Commissioner had not advised the Board that they changed the guidance on which they based their decision. Responding, Mr. Raymond stated that it was beyond the Board’s purview to question what was in the first letter because it had not been overturned. Mr. Dunkle asked if there was an appeal from the Election Board’s decision in this matter. Mr. Raymond stated that there was and noted that there were administrative errors at the State level. He stated that, because they were not made at the City level, the Election Board members did not have any power. Mr. Dunkle stated that if there was an appeal from this Board, then this Board needed to hear evidence. Mr. Raymond responded that the Board just needed to take a vote and did not need to hear evidence. Mr. Dunkle stated that he respectfully disagreed. Mr. Raymond indicated that members had the evidence in front of them and the State had instructed what to do. Mr. Pepper advised that the Board must determine whether or not the candidates should be disqualified. Responding, Mr. Raymond stated that he did not see it that way. Mr. Pepper stated that this was his advice, as the Election Board’s lawyer. Mr. Raymond asked if there was precedent. In response, Mr. Pepper indicated that the statute provides that the matter comes before the Election Board. He noted that the Election Board was not a rubber stamp of the State Elections Commission and it needed to make a determination as to whether these candidates were not in compliance. Mr. Raymond advised that the State Election Commissioner had made that determination. Mr. Pepper indicated that the Board must make that determination. Mr. Raymond asked what the determination would be based upon and if it would be evidence from all the people gathered in the room. Mr. Pepper responded that evidence should be gathered from the candidates. Mr. Raymond stated that he strongly disagreed and that this would come up at the appeal level. He asked if he was the lone vote or if members should vote. Mr. Raymond indicated that he thought this matter was straightforward. Mr. Caldwell expressed his understanding that the members’ responsibility was to make a decision as to whether the candidates would stay on the ballot or not. He advised that the issue with the State would have to go to the General Assembly to resolve; however, the Election Board had the
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responsibility of determining whether two (2) of the three (3) candidates could stay on the ballot. Mr. Caldwell indicated that he did not know why the third candidate would be concerned in the first place because he was not opposed. Mr. Dunkle indicated that his final point was that Mr. Slavin was not a candidate because he had no opposition and, under the City charter, is simply a holdover and stays in office until there is someone elected to replace him. Mr. Caldwell indicated that discussions of the Certificate of Intention or Statement of Organization were irrelevant to him. He expressed concern regarding whether the candidates can stay on the ballot because of the seven-day issue with the State, noting that there were flaws and problems. Mr. Caldwell advised that Newark, Middletown, and other cities had experienced problems with the State issue that members were dealing with; however, the Board’s responsibility was simply to determine whether these candidates can stay on the ballot and that was what they were present to do. Mr. Raymond stated that all the arguments that could be made in favor of the individual candidates were still beyond members’ purview to either verify or to get corroborating testimony or evidence of any kind. He advised that members could start a procedure, but he thought that this was beyond the Board’s purview. Mr. Raymond indicated that the letter from the State and the second follow-up letter from the State indicated that the appeals would be given the correct consideration because the State thought they made administrative errors. He noted that he thought it would be fair to have the State hear the appeals; however, members could not act on things that could not be determined at the meeting. Mr. Raymond pointed out that members cannot determine exactly when somebody handed in a form, what they were thinking, or what the rules were. He reiterated that this matter was beyond the Election Board’s purview. He stated that members could act on a motion to disqualify the candidates and vote it up or down. Mr. Raymond noted that, under the law, the Board of Elections shall declare the candidate who has failed to comply and suggested that the Board was supposed to accept the recommendation of the State. He advised that these candidates were not in compliance. Mr. Pepper stated that the Board had to determine if the candidates were in compliance. He noted that the Board would make the determination as to whether the candidates were not in compliance with §7555(d), stating that the State had suggested that they were not in compliance. Mr. Raymond asked how compliance would be determined and if members would take sworn testimony at the meeting. Mr. Pepper responded that they would take testimony. Mr. Raymond asked about the rebuttal witnesses who do not know of about this procedure. Responding, Mr. Pepper noted that the State had been informed of this hearing. Mr. Raymond indicated that the State had asked to declare these candidates non-compliant. Mr. Pepper noted that all the State’s emails and letters were prior to these proceedings. Mr. Pepper reiterated that the State was notified of the hearing. Mr. Raymond indicated that he did not see a valid way to start considering three (3) separate cases before the Election Board, which was not in their mandate. He stated that their mandate was to follow the code which had been laid out, stating that there had no letter from the State contravening the statement of non-compliance. In response, Mr. Pepper respectfully disagreed. He reiterated that the Election Board is not a mere rubber stamp for the State Elections Commission. Mr. Raymond asked if there had been anything contravening that the candidates were not in compliance.
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Mr. Pepper advised that the candidates had submitted information. Mr. Raymond questioned if there had been anything from the State, and Mr. Pepper stated that there had not, noting that the State had not replied or attempted to rebut his analysis of the statute. Mr. Raymond indicated that he would attempt to rebut it from what he had read; however, this was not the place for that. Referring to the Delaware Elections Campaign Finance Section Municipal Candidate Guideline, he stated that he could make the argument, from what is stated under “Form a Candidate Committee,” that there is an “or” which states when a candidate committee must be formed, and to him this was black and white. Mr. Pepper stated that this was not what the statute says. Mr. Raymond stated that he was not qualified to interpret the statute, but was qualified to see that the candidates are found in non-compliance, as required by the Code. Mr. Pepper advised that there had been no hearing before the State Elections Commission, and the hearing was before the City’s Election Board. Mr. Raymond stated that he disagreed with Mr. Pepper that the meeting was an evidentiary hearing. Dr. Laws indicated that the State had some responsibility to provide members with additional information if it was true that they changed something at the last minute. She noted that members did not know exactly when the candidates filed their paperwork and asked how she could vote without having all the facts. Mr. Raymond stated that some material was coming in hourly, and that members had not had as much chance as they might need to review all of it. He noted that he had gone over all of the material that he had the previous night and found that it was several more pages when he arrived at the meeting. Dr. Laws stated that the State was remiss by not being here, noting that they knew of the meeting, sent the letter, helped to cause the confusion, and were not present to clarify anything. Mr. Caldwell stated that he had been able to review the emails that were sent earlier in the week and had thoroughly reviewed all of the material, each case, what was stated, as well as what was in the media, to determine what needed to be done. Mr. Caldwell noted that the State was not present; however, he indicated that he would like to hear the arguments from the candidates and from Mr. Dunkle. He noted that these were all separate situations dealing with Title 15 §7555 and that members needed to hear the arguments in all of these documents. Mr. Caldwell stated that this issue could be confusing and maybe that was why the State was not present; however, members needed to do their jobs to vote and determine if these candidates could continue on the ballot. He indicated that the Board was not present to prevent them from running in the City of Dover election and that members should let the State work its issues out, noting that this was not the City’s issue. Mr. Caldwell stated he thought that members needed to listen to the arguments and hear what happened. He indicated that the Deputy City Solicitor would present, and Ms. Elaine Manlove, State Election Commissioner, would be able to know what was discussed, what took place, and what needs to be rectified and then make a determination. He noted that the Town of Middletown took care of their business and all three (3) candidates were put back on the ballots. Mr. Caldwell reiterated that Mr. Slavin was unopposed and he did not know why members were discussing him, stating that discussion about him was irrelevant to Mr. Caldwell. Mr. Caldwell indicated that he was
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unsure why members were looking at documents, stating that, from what he read, members would be discussing the problem of the seven-day registration deadline and Mr. Neil’s cell phone number. Mr. Neil stated that the issue regarding his cell phone was unconstitutional. Mr. Caldwell concurred and indicated that the cell phone issue reflected discrimination, noting that he does not want people to have his own cell phone number. He reiterated the need to hear the arguments and clarify what Mr. Neil had to deal with, noting that this was the Board’s job. Mr. Caldwell asked Mr. Polce if he had known about the seven-day situation. Responding, Mr. Polce indicated that he did not know. Mr. Caldwell asked if Mr. Polce was informed or if they put something in writing. Dr. Laws commented that they had told Mr. Polce that everything looked good. Mr. Polce stated that this was a major issue. Responding, Mr. Caldwell indicated that this may not be an error but this was a problem that needed to be rectified. He indicated that if communities all over the State were dealing with the same issues as the City of Dover, the Election Board must present it back to the State, whether or not they are present, and go forth. Mr. Caldwell advised that these candidates should be allowed on the ballot and he suggested letting the rest of the State do their job and correct the situation so that there would not be a continual problem, noting that it would continue in the future if not corrected now. He indicated that he did not want to limit candidates from running in the City of Dover, stating that the people need choices. Mr. Caldwell questioned if the Department of Elections asked Mr. Polce to sign anything saying that he understood. Responding, Mr. Polce indicated that he absolutely did not, and Mr. Caldwell indicated that Mr. Polce should not be eliminated. In regard to cell phones, Mr. Caldwell advised that he does not like to give his cell phone out to everybody and this was an issue that should be erased and not even talked about. He noted that he would not even give his phone number. Mr. Caldwell reiterated that Mr. Slavin was unopposed on February 10, 2017 at 5:00 p.m. and would be on Council until 2021. He stated that he did not know why members would have to debate Mr. Slavin’s situation. Mr. Caldwell indicated that the issues were relatively simple and that members had an obligation to vote these candidates on the ballot and move forward, noting that the State and the candidates want to know. He expressed the desire to vote and clear this up so that this problem does not continue. Mr. Caldwell stated that he would like the candidates to be on the ballot for the people to make their decisions. Mr. Raymond advised that he agreed with nearly everything Mr. Caldwell had said, including the need to deal with this situation. He indicated that he would like to see all of these candidates running; however, members were talking about procedure. Mr. Caldwell indicated that this was why the Election Board should resolve it. Mr. Raymond expressed concern about accepting statements from individuals at the meeting, stating that members could not make a determination. He felt members should just take a vote.
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Mr. Caldwell questioned how members could vote when they did not know what had taken place, and Dr. Laws concurred. Mr. Raymond indicated that by accepting statements, members would get answers but would still not know exactly what went on and would be hearing one side of the story. Mr. Caldwell advised that the Election Board was not the State and could not resolve the situation, but at least they could get an idea of what these candidates had to go through. Mr. Raymond expressed his belief that testimony would muddy the waters. Mr. Caldwell asked if Mr. Neil filed his papers on time, and Mr. Neil responded that he had. Mr. Caldwell commented that this should have been the end of it. Mr. Raymond advised that members were not lawyers and that this was not an evidentiary hearing. Responding to Mr. Caldwell, Mr. Pepper advised Mr. Slavin would not have been on the ballot since his office was unopposed, so members would be considering removing the other two (2) candidates. Mr. Raymond asked if Mr. Slavin would still be considered a candidate. Mr. Pepper responded that Mr. Slavin was not a candidate because he was re-elected when he was unopposed at the filing deadline. Mr. Caldwell moved to declare Mr. Polce, Mr. Slavin, and Mr. Neil eligible as candidates and to allow them to remain on the ballot for the City of Dover election. The motion was seconded by Dr. Laws and unanimously carried. Mr. Caldwell moved for adjournment, seconded by Ms. McDowell Boyer and unanimously carried. Meeting adjourned at 4:29 p.m.
Curtis Raymond Interim Chair CR/TM/js S:\AGENDAS-MINUTES-PACKETS-PRESENTATIONS-ATT&EXH\Misc-Minutes\ELECTION BOARD\03-10-2017 Election Board.wpd
Attachments Attachment #1 - Email from Mrs. Traci McDowell, City Clerk, dated March 8, 2017 regarding City of Dover - Failure to Comply Attachment #2 - Filings Required by the State Election Commissioner’s Office Memorandum and Municipal Candidate Guideline Attachment #3 - Memorandum dated March 10, 2017 from Mr. Fred A. Neil regarding State Election Board Notice of a Violation Attachment #4 - Email dated March 8, 2017 from Mr. Fred Neil regarding City of Dover - Failure to Comply Attachment #5 - Email dated March 1, 2017 from Mr. Fred Neil regarding Special Election Board Meeting to Consider Failure to Comply
ATTACHMENT #1 Election Board Meeting of 03/10/2017 Stein, Jody From: Sent: To: Cc: Subject:
McDowell, Traci Wednesday, March 08, 2017 2:08 PM City Clerks Office Pepper, William W. FW: City of Dover- Failure to Comply
Please see the below correspondence related to the Failure to Comply issue being considered at the Election Board meeting on Friday, March 10, 2017 at 4:00 p.m. Thank you,
Traci A. McDowell, MMC
City Clerk City of Dover, Delaware e-mail: [email protected] Ph: (302) 736-7009 Fax: (302) 736-5068
This e-mail has been blind copied to the members of the Election Board In order to prevent a serial meeting, please do not respond to, nor discuss, this information with a quorum of Council or any committee prior to the meeting.
From: Bill Pepper [mailto:[email protected]] Sent: Monday, February 27, 2017 3:05 PM To: 'McDowell, Kenneth "Bo" (Elect_COE)'; McDowell, Traci Cc: 'COE_CampaignFinance'; 'Greenhow, Robin (Elect_COE)'; 'Webb, Cheryl (Elect_COE)'; 'Bueno, Millianie T (Elect_COE)'; City Clerks Office Subject: RE: City of Dover- Failure to Comply
Mr. McDowell, Thank you for your prompt response to the City Clerk. The matter has been referred to me for response as I advise the Dover Board of Elections as the Deputy City Solicitor. As I read 15 Del. C. §7555(d), a filing requirement is triggered by one of three things: (1) The office pays less than $1,000;
(2) The candidate intends to or does receive more than $2,000 in campaign contributions; or (3) The candidate intends to spend or does spend more than $2,000 in campaign expenses. Your email suggests that the statute is triggered when the office pays more than $1,000, but that it is contrary to the plain language of the statute. Chapter 80 requires a filing if the office pays more than $1,000 per year. But §7555 is self‐contained. Subsection (e) requires you to notify Dover’s Board if a candidate fails to comply with subsection (d). Subsection (f) requires Dover’s Board to disqualify candidates who do not comply with subsection (d). I do not see a failure to comply with subsection (d) as written. Perhaps the DAG assigned to the Elections Commissioner can contact me. 1
William W. Pepper Sr., Esquire Schmittinger and Rodriguez, P.A. 414 South State Street P.O. Box 497 Dover DE 19903 Voice 302.674.0140 [email protected] From: McDowell, Kenneth "Bo" (Elect_COE) [mailto:[email protected]] Sent: Monday, February 27, 2017 2:06 PM To: McDowell, Traci Cc: COE_CampaignFinance ; Greenhow, Robin (Elect_COE) ; Webb, Cheryl (Elect_COE) ; Bueno, Millianie T (Elect_COE) <[email protected]>; City Clerks Office ; Pepper, William W. <[email protected]> Subject: RE: City of Dover‐ Failure to Comply Ms. McDowell, Absolutely. This was brought to our attention by a candidate's treasurer that is in the race. Upon researching the situation, our office is required to notify the Board of Elections for the City of Dover. We are only concerned with the amount of time that passed between declaring candidacy (filling out candidate filing form) and registering a candidate committee with our office. All offices that make $1,000.00 or more are required to register a candidate committee according to state law. However, this isn't the question at hand and I responded to that inquiry from the City of Dover in the past. We are simply notifying the Board that these individuals didn't meet the 7 day requirement as prescribed by DE Code. Please let me know if you have further questions. Thanks, Bo From: McDowell, Traci [mailto:[email protected]] Sent: Monday, February 27, 2017 1:56 PM To: McDowell, Kenneth "Bo" (Elect_COE) Cc: COE_CampaignFinance; Greenhow, Robin (Elect_COE); Webb, Cheryl (Elect_COE); Bueno, Millianie T (Elect_COE); City Clerks Office; Pepper, William W. Subject: RE: City of Dover- Failure to Comply
Mr. McDowell: Would you please advise what triggered the requirement for Messrs. Polce, Neil and Slavin to file documents in accordance with 15 Del.C. §7555(d)? 15 Del. C. §7555(d) provides: “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 2
making expenditures or receiving contributions on behalf of the candidate or committee, the candidate shall notify the Commissioner and file a Statement of Organization.” (emphasis added) The yearly salary of a member of the City of Dover Council is not less than $1000. We have no evidence that suggests that any of the candidates have received more than $2000 in campaign contributions or have spent more than $2,000 for campaign expenses. Please reply to all. Thank you,
Traci A. McDowell, MMC
City Clerk City of Dover, Delaware e-mail: [email protected] Ph: (302) 736-7009 Fax: (302) 736-5068
From: McDowell, Kenneth "Bo" (Elect_COE) [mailto:[email protected]] Sent: Friday, February 24, 2017 11:40 AM To: Stein, Jody; City Clerks Office Cc: COE_CampaignFinance; McDowell, Kenneth "Bo" (Elect_COE); Greenhow, Robin (Elect_COE); Webb, Cheryl (Elect_COE); Bueno, Millianie T (Elect_COE) Subject: City of Dover- Failure to Comply Importance: 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: 3
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.
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ATTACHMENT #2 Election Board Meeting of 03/10/2017
FILINGS REQUIRED BY THE STATE ELECTION COMMISSIONER’S OFFICE All candidates for elected office in the City of Dover must meet campaign finance requirements as specified in Title 15 of the Delaware Code and as required by the Office of the State Election Commissioner. IF YOU FAIL TO FILE THE REQUIRED FORMS WITH THE OFFICE OF THE STATE ELECTION COMMISSIONER, YOUR MUNICIPAL BOARD OF ELECTIONS WILL BE INFORMED OF YOUR FAILURE TO FILE AND YOU MAY BE DENIED A POSITION ON THE BALLOT. If you have any questions, please contact the Office of the State Election Commissioner. Contact information is provided below: Office of the State Election Commissioner, Campaign Finance 905 S. Governors Avenue, Suite 170 Dover, DE 19904 Phone: (302) 739-4277 https://cfrs.elections.delaware.gov
I
, a candidate in the April 18, 2017 City of Dover Regular Municipal Election, (Name of Candidate)
received a copy of the Campaign Finance Section Municipal Candidate Guideline (CFFM033 V2.0 2015/04/21) on , 20
and I understand that I must file any forms required under Title 15 of the Delaware Code.
I also understand that failure to do so may result in removal of my name from the ballot.
CANDIDATE’S SIGNATURE
CLERK’S OFFICE SIGNATURE
S:\ELECTIONS - MUNICIPAL\2017 04-18 Election\NOMINATING PETITION & FILING DOCUMENTS\Municipal Campaign Finance Guidelines Memo-Rev. 12-05-2016.wpd
Campaign Finance Section Municipal Candidate Guideline
Welcome to Municipal Elections! In compliance with the Delaware Campaign Finance law, all municipal candidates must either file a Certification of Intention or form a Candidate Committee no later than seven (7) days after declaring candidacy. Please refer to the Delaware Code, Title 15, §7555(d)(e)(f) and §8004 for details. File a Certification of Intention
Office pays less than $1,000 per year and you intend or expect to receive or spend no more than $2,000 in your campaign. → How to file a Certification of Intention:
Go to https://cfrs.elections.delaware.gov Select ‘Certification of Intention’ Complete the application online Print, sign, and mail the document to: Office of the State Election Commissioner Attention: Campaign Finance 905 S. Governors Ave., Suite 170, Dover, DE 19904
NOTE: If you subsequently receive or spend over $2,000, you must then form a Candidate Committee within seven (7) days of exceeding $2,000, and you will be required to file Campaign Finance reports. 15 Del. C. §8004
Form a Candidate Committee
Office pays $1,000 or more; or
Office pays less than $1,000 and you intend or expect to receive or spend more than $2,000 during your campaign. → How to form a Candidate Committee:
Go to https://cfrs.elections.delaware.gov Select ‘Register a Candidate Committee’ Complete the registration online. This will create a Statement of Organization. Print the Statement of Organization, sign the document in the presence of a notary, and mail to: Office of the State Election Commissioner Attention: Campaign Finance 905 S. Governors Ave., Suite 170, Dover, DE 19904
Failure to comply with 15 Del. C. §7555(d)(e)(f) will require the State Election Commissioner to notify your municipality's Board of Elections and may result in the removal of your name from the ballot. Contact the Campaign Finance Team at (302) 739-4277 if you have questions or need assistance. Page 1 of 1
CFFM033 V2.0 2015/04/21
ATTACHMENT #3 Election Board Meeting of 03/10/2017
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3 rd
Disfrid, City Council
P. 0. Box 475, Dover, Delaware 19903 + 302-736-7009 March 10, 2017 To: The Members of the City of Dover Election Board From: Fred A. Neil Re: State Election Board Notice of a Violation The violation notice of the failure to register a Campaign Committee within 7 days of being accepted as a candidate for re-election is draconian and may be unconstitutional. While, the failure to register a committee within that 7 day period could result in my being removed from the ballot, I have received an email from the State Election Office that my committee has been registered. If I fail to file a financial report on March 21, 2017, I could be fined, but not banished. The law calls for the State Election Board to provide the campaign committee filing material to the City Clerk for the candidates. They don't, instead they require candidates to sign a document saying they will go on the internet to the State Election Board website and register on line. Thanks to the Dover Public Library, an eligible indigent candidate could register, but would be stymied, as I was, in filing the information because they may not have a Cell Phone. By requiring a Cell Phone, not only for the candidate, but the candidate' s committee members as well. After being stymoied by this for several days, and not having an opponent, I thought I may not need a committee if I were to run unopposed. When 2 opponents filed on the last day to file, I mailed my committee information to the State Board. It was rejected! The only way I could register electronically, I was given permission by Robin Greenhow, of the State Election Office, to use the committee members, all retirees, home phone numbers already listed on the form. Where it called for Cell Phones. While I am not a lawyer, I believe requiring a candidate to have a Cell Phone and the financial cost of Service to operate it is unconstitutional. I could not find the use of a Cell Phone in the law. Therefore, if it is a requirement of State Election Board for their convenience, I can understand why they want this, but is it legal? Questions have also been raised as to exactly when the 7 day period begins. You have a legal brief on this, I believe. I also believe in not soliciting or accepting campaign contributions for this office. I did not in the 2015 campaign and I will not in 2017. To date, as duly reported on March 8, 2017 to the State Election Office, I paid $10.20 for labels to add to Lawn Signs I purchased for the 2015 election which say "Paid for by the Committee to Re-Elect Fred Neil." I pray that you will not make me "Walk the Plank to elected Oblivion" in this 2017 election.
ATTACHMENT #4 Election Board Meeting of 03/10/2017 McDowell, Traci From:
Sent: To:
Subject:
FRED Neil Wednesday, March 08, 2017 5:19 PM McDowell, Traci Fwd: RE: City of Dover- Failure to Comply
Please provide this to Attorney Bill Pepper. I hope he is feeling better on Friday.
Fred ---------- Original Message ---------From: "Manlove, Elaine M (Elect_COE)" <[email protected]> To: FRED Neil , "Lynn, Sean M (LegHall)" <[email protected]> Cc: Tim Slavin , Tanner Polee , COE_CampaignFinance Date: February 24, 2017 at 3:25 PM Subject: RE : City of Dover- Failure to Comply All of your documentation is complete .
From: FRED Neil [mailto:[email protected]] Sent: Friday, February 24, 2017 2:30 PM To: Manlove, Elaine M (Elect_COE); Lynn, Sean M (LegHall) Cc: Tim Slavin; Tanner Polee; COE_CampaignFinance Subject: Re: City of Dover- Failure to Comply
In my case it should be moot as I personally hand carried the required documents to the election office and received emails with a password, since changed to my personal password, which said that I was registered. I received a copy of the document I brought to the office. Unless they can't find a record of it, the problem may be with the staff at the office on S. Governor's. Fred Neil
On February 24, 2017 at 1:57 PM "Lynn, Sean M (LegHall)" <[email protected]> wrote: Gotcha. So if they DONT intend or spend more more than $2k, they are obligated to file a Certificate of Intention.
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If they do intend to raise or spend more than $2k they are not obligated to file one.
The jobs pay more than $1000.00, so that alone doesn't mean they have to file one.
Right? I was reading it backwards!
Sent from my iPhone
On Feb 24, 2017, at 1:54 PM, Manlove, Elaine M (Elect_COE) <[email protected]> wrote: This is from Title 15, Chapter 75:
(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 .
We must have the Certificate of Intention, however, w don't need the Statement of Organization unless the dollar figures come into play.
From: Lynn, Sean M (LegHall) Sent: Friday, February 24, 2017 1:45 PM To: Manlove, Elaine M (Elect_COE) Cc: COE_CampaignFinance; Fred Neil; Tanner Polee; Tim Slavin Subject: Re: City of Dover- Failure to Comply
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It looks like they can file either a Certificate of Intention OR a statement of organization within 7 days?
The requirement to file a Certificate of Intention looks like it's if the job pays less than $1 k or they raise or spend more than $2k?
Right?
Seems the problem may have been the timely filing of the Statement of Organization, but I am having trouble understanding why a Certification of Intention needs or needed to be filed?
Sent from my iPhone
On Feb 24, 2017, at 1:37 PM, Manlove, Elaine M (Elect_COE) <[email protected]> wrote : We need a Certificate of Intention within 7 days regardless. Then, a Statement of Organization if they plan to raise or spend $2,000.
The th ree listed have candidate committees at this point. Howeve r, they didn 't register them with us until after seven day period . They are currently in compliance but the code states that we have to ale rt the Board of Elections for the Municipality when candidates do not register a Certification of Intention or Candidate Committee within the seven day time frame .
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----- From: Lynn, Sean M (LegHall) Sent: Friday, February 24, 2017 1:07 PM To: COE_CampaignFinance; Manlove, Elaine M (Elect_COE) Cc: Fred Neil; Tanner Polee; Tim Slavin Subject: Fwd: City of Dover- Failure to Comply
To Whom It May Concern
I am writing with confusion relative to the below email and was hopeful the DoE can clarify same.
How does 15 Del. C. 7552(d) apply to Mr. Neil, Mr. Polee or Mr. Slavin, given the position for which they are running for pays more than $1000 and if they don't intend to raise more than $2000. 00 in contributions or expend more than $2000.00 for campaign expenses?
It seems that a Certificate oflntention is not required if they don't intend to raise more than $2k or expend more than $2k in campaign expenses. Am I incorrect?
Please advise.
Best regards, Sean Sent from my iPhone
Begin forwarded message: From: Tanner Polee Date: February 24, 2017 at 12:28:51 PM EST To: "Councilman Sean M. Lynn" , "Sean M. Lynn" <[email protected]> Subject: Fwd: FW: City of Dover- Failure to Comply 4
---------- Forwarded message ---------From: McDowell, Traci Date: Fri, Feb 24, 2017 at 12:17 PM Subject: FW: City of Dover- Failure to Comply To : City Clerks Office Cc: "Tanner Wm. Polee ([email protected])" , "Slavin, Timothy" , "Neil, Fred" , "Pepper, William W." <[email protected]> This e-mail has been blind copied to the City of Dover Election Board.
T~ A.
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February 24, 2017, which stated that “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.” Mr. Raymond questioned if these were matters that the State needed to discuss on appeal. Dr. Laws asked if someone was present to represent the State Board of Elections. Responding, Mr. Pepper stated that he did not believe so and noted that the State had not submitted anything to the Board. Mr. Raymond indicated that the exception was the two (2) letters that were received, and stated that one (1) letter instructed members clearly on what to do. He advised that he was open to new ideas; however, taking evidence or trying to decide who did what and when was not in the Board’s purview. Mr. Raymond noted that the State had stated that the candidates were not in compliance and the remedy. Mr. Pepper stated that the issue before the Board was whether or not they were in compliance. Mr. Caldwell asked if it would be appropriate for the Board to hear Mr. Neil’s, Mr. Polce’s, and Mr. Slavin’s cases all together or individually. In response, Mr. Raymond indicated that he was having trouble because this was not the members’ function in the meeting. Responding, Mr. Caldwell stated that members must make a decision. Mr. Raymond indicated that members did not have to make a decision since this had already been decided, noting that the email stated that, “These candidates are not in compliance.” Mr. Pepper advised that he thought the State Elections Department was mistaken by saying that they were not in compliance, but it would be the Election Board’s decision as to whether they are struck from the ballot. Dr. Laws stated that she found it strange that this was occurring to three (3) people at the same time and questioned what it was that was not clear. She questioned how a council president could not know when the date was, noting that she was not saying that he was guilty or not guilty; however, this was not the first time he had run. Dr. Laws asked why there was confusion, unless there was something in the State code that misleads people or was omitted. Mr. Mark Dunkle, Attorney, Parkowski, Guerke & Swayze, stated that he was representing Council President Slavin. He referred to his letter dated March 6, 2017 to Mr. Slavin regarding Compliance with 15 Del.C. §7555(d), stating that he had tried to analyze the statute. Mr. Dunkle indicated that the State Department of Elections publishes guidance for municipal candidates, and that guidance was prepared by that office and distributed to municipal candidates on the list. He noted that, on the past Monday, they changed this guidance significantly and materially and, by changing it, they changed the rules. Mr. Dunkle stated that the rules that they published for two (2) years before last Monday were wrong and were giving incorrect guidance to candidates, which he stated related to Dr. Laws’ point about something being wrong. He indicated that the guidance that was published coincided with Mr. Pepper's advice in the beginning. Mr. Dunkle stated that, in his opinion, the way that guidance was published, none of these candidates were in violation.
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Mr. Raymond asked Mr. Dunkle to cease presenting evidence, noting that Mr. Dunkle had answered the question about a conflict, which members understood. Mr. Raymond indicated that this was a State matter. Mr. Dunkle stated that Mr. Raymond’s comment was duly noted; however, he needed to make a record and proceed. Mr. Raymond asked Mr. Dunkle not to present evidence at this meeting, stating that it was not, and would not be, an evidentiary proceeding. Mr. Dunkle stated that his submissions had been made for the record and he noted that there was also an affidavit. He requested that he be permitted to present his client’s case and, if not permitted, it would be a denial of due process. Mr. Raymond reiterated that this was not an evidentiary hearing. Mr. Dunkle responded that it had not been made clear to him that it was not an evidentiary hearing. Mr. Dunkle advised that in the law that the Chairman had cited and read verbatim, he did not read the last sentence in §7555(f), which stated that “Administrative errors or oversights by municipal or state officials shall not be grounds for declaring a person ineligible to be a candidate.” Mr. Raymond stated that members were acting on the letter from the State, which advised that three (3) candidates from Dover were not in compliance. He noted that in a letter that followed, the State had outlined that the appeal procedure would be “a walk in the park” because their appeals would be accepted. Mr. Dunkle stated that the State Election Commissioner had not advised the Board that they changed the guidance on which they based their decision. Responding, Mr. Raymond stated that it was beyond the Board’s purview to question what was in the first letter because it had not been overturned. Mr. Dunkle asked if there was an appeal from the Election Board’s decision in this matter. Mr. Raymond stated that there was and noted that there were administrative errors at the State level. He stated that, because they were not made at the City level, the Election Board members did not have any power. Mr. Dunkle stated that if there was an appeal from this Board, then this Board needed to hear evidence. Mr. Raymond responded that the Board just needed to take a vote and did not need to hear evidence. Mr. Dunkle stated that he respectfully disagreed. Mr. Raymond indicated that members had the evidence in front of them and the State had instructed what to do. Mr. Pepper advised that the Board must determine whether or not the candidates should be disqualified. Responding, Mr. Raymond stated that he did not see it that way. Mr. Pepper stated that this was his advice, as the Election Board’s lawyer. Mr. Raymond asked if there was precedent. In response, Mr. Pepper indicated that the statute provides that the matter comes before the Election Board. He noted that the Election Board was not a rubber stamp of the State Elections Commission and it needed to make a determination as to whether these candidates were not in compliance. Mr. Raymond advised that the State Election Commissioner had made that determination. Mr. Pepper indicated that the Board must make that determination. Mr. Raymond asked what the determination would be based upon and if it would be evidence from all the people gathered in the room. Mr. Pepper responded that evidence should be gathered from the candidates. Mr. Raymond stated that he strongly disagreed and that this would come up at the appeal level. He asked if he was the lone vote or if members should vote. Mr. Raymond indicated that he thought this matter was straightforward. Mr. Caldwell expressed his understanding that the members’ responsibility was to make a decision as to whether the candidates would stay on the ballot or not. He advised that the issue with the State would have to go to the General Assembly to resolve; however, the Election Board had the
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responsibility of determining whether two (2) of the three (3) candidates could stay on the ballot. Mr. Caldwell indicated that he did not know why the third candidate would be concerned in the first place because he was not opposed. Mr. Dunkle indicated that his final point was that Mr. Slavin was not a candidate because he had no opposition and, under the City charter, is simply a holdover and stays in office until there is someone elected to replace him. Mr. Caldwell indicated that discussions of the Certificate of Intention or Statement of Organization were irrelevant to him. He expressed concern regarding whether the candidates can stay on the ballot because of the seven-day issue with the State, noting that there were flaws and problems. Mr. Caldwell advised that Newark, Middletown, and other cities had experienced problems with the State issue that members were dealing with; however, the Board’s responsibility was simply to determine whether these candidates can stay on the ballot and that was what they were present to do. Mr. Raymond stated that all the arguments that could be made in favor of the individual candidates were still beyond members’ purview to either verify or to get corroborating testimony or evidence of any kind. He advised that members could start a procedure, but he thought that this was beyond the Board’s purview. Mr. Raymond indicated that the letter from the State and the second follow-up letter from the State indicated that the appeals would be given the correct consideration because the State thought they made administrative errors. He noted that he thought it would be fair to have the State hear the appeals; however, members could not act on things that could not be determined at the meeting. Mr. Raymond pointed out that members cannot determine exactly when somebody handed in a form, what they were thinking, or what the rules were. He reiterated that this matter was beyond the Election Board’s purview. He stated that members could act on a motion to disqualify the candidates and vote it up or down. Mr. Raymond noted that, under the law, the Board of Elections shall declare the candidate who has failed to comply and suggested that the Board was supposed to accept the recommendation of the State. He advised that these candidates were not in compliance. Mr. Pepper stated that the Board had to determine if the candidates were in compliance. He noted that the Board would make the determination as to whether the candidates were not in compliance with §7555(d), stating that the State had suggested that they were not in compliance. Mr. Raymond asked how compliance would be determined and if members would take sworn testimony at the meeting. Mr. Pepper responded that they would take testimony. Mr. Raymond asked about the rebuttal witnesses who do not know of about this procedure. Responding, Mr. Pepper noted that the State had been informed of this hearing. Mr. Raymond indicated that the State had asked to declare these candidates non-compliant. Mr. Pepper noted that all the State’s emails and letters were prior to these proceedings. Mr. Pepper reiterated that the State was notified of the hearing. Mr. Raymond indicated that he did not see a valid way to start considering three (3) separate cases before the Election Board, which was not in their mandate. He stated that their mandate was to follow the code which had been laid out, stating that there had no letter from the State contravening the statement of non-compliance. In response, Mr. Pepper respectfully disagreed. He reiterated that the Election Board is not a mere rubber stamp for the State Elections Commission. Mr. Raymond asked if there had been anything contravening that the candidates were not in compliance.
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Mr. Pepper advised that the candidates had submitted information. Mr. Raymond questioned if there had been anything from the State, and Mr. Pepper stated that there had not, noting that the State had not replied or attempted to rebut his analysis of the statute. Mr. Raymond indicated that he would attempt to rebut it from what he had read; however, this was not the place for that. Referring to the Delaware Elections Campaign Finance Section Municipal Candidate Guideline, he stated that he could make the argument, from what is stated under “Form a Candidate Committee,” that there is an “or” which states when a candidate committee must be formed, and to him this was black and white. Mr. Pepper stated that this was not what the statute says. Mr. Raymond stated that he was not qualified to interpret the statute, but was qualified to see that the candidates are found in non-compliance, as required by the Code. Mr. Pepper advised that there had been no hearing before the State Elections Commission, and the hearing was before the City’s Election Board. Mr. Raymond stated that he disagreed with Mr. Pepper that the meeting was an evidentiary hearing. Dr. Laws indicated that the State had some responsibility to provide members with additional information if it was true that they changed something at the last minute. She noted that members did not know exactly when the candidates filed their paperwork and asked how she could vote without having all the facts. Mr. Raymond stated that some material was coming in hourly, and that members had not had as much chance as they might need to review all of it. He noted that he had gone over all of the material that he had the previous night and found that it was several more pages when he arrived at the meeting. Dr. Laws stated that the State was remiss by not being here, noting that they knew of the meeting, sent the letter, helped to cause the confusion, and were not present to clarify anything. Mr. Caldwell stated that he had been able to review the emails that were sent earlier in the week and had thoroughly reviewed all of the material, each case, what was stated, as well as what was in the media, to determine what needed to be done. Mr. Caldwell noted that the State was not present; however, he indicated that he would like to hear the arguments from the candidates and from Mr. Dunkle. He noted that these were all separate situations dealing with Title 15 §7555 and that members needed to hear the arguments in all of these documents. Mr. Caldwell stated that this issue could be confusing and maybe that was why the State was not present; however, members needed to do their jobs to vote and determine if these candidates could continue on the ballot. He indicated that the Board was not present to prevent them from running in the City of Dover election and that members should let the State work its issues out, noting that this was not the City’s issue. Mr. Caldwell stated he thought that members needed to listen to the arguments and hear what happened. He indicated that the Deputy City Solicitor would present, and Ms. Elaine Manlove, State Election Commissioner, would be able to know what was discussed, what took place, and what needs to be rectified and then make a determination. He noted that the Town of Middletown took care of their business and all three (3) candidates were put back on the ballots. Mr. Caldwell reiterated that Mr. Slavin was unopposed and he did not know why members were discussing him, stating that discussion about him was irrelevant to Mr. Caldwell. Mr. Caldwell indicated that he was
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unsure why members were looking at documents, stating that, from what he read, members would be discussing the problem of the seven-day registration deadline and Mr. Neil’s cell phone number. Mr. Neil stated that the issue regarding his cell phone was unconstitutional. Mr. Caldwell concurred and indicated that the cell phone issue reflected discrimination, noting that he does not want people to have his own cell phone number. He reiterated the need to hear the arguments and clarify what Mr. Neil had to deal with, noting that this was the Board’s job. Mr. Caldwell asked Mr. Polce if he had known about the seven-day situation. Responding, Mr. Polce indicated that he did not know. Mr. Caldwell asked if Mr. Polce was informed or if they put something in writing. Dr. Laws commented that they had told Mr. Polce that everything looked good. Mr. Polce stated that this was a major issue. Responding, Mr. Caldwell indicated that this may not be an error but this was a problem that needed to be rectified. He indicated that if communities all over the State were dealing with the same issues as the City of Dover, the Election Board must present it back to the State, whether or not they are present, and go forth. Mr. Caldwell advised that these candidates should be allowed on the ballot and he suggested letting the rest of the State do their job and correct the situation so that there would not be a continual problem, noting that it would continue in the future if not corrected now. He indicated that he did not want to limit candidates from running in the City of Dover, stating that the people need choices. Mr. Caldwell questioned if the Department of Elections asked Mr. Polce to sign anything saying that he understood. Responding, Mr. Polce indicated that he absolutely did not, and Mr. Caldwell indicated that Mr. Polce should not be eliminated. In regard to cell phones, Mr. Caldwell advised that he does not like to give his cell phone out to everybody and this was an issue that should be erased and not even talked about. He noted that he would not even give his phone number. Mr. Caldwell reiterated that Mr. Slavin was unopposed on February 10, 2017 at 5:00 p.m. and would be on Council until 2021. He stated that he did not know why members would have to debate Mr. Slavin’s situation. Mr. Caldwell indicated that the issues were relatively simple and that members had an obligation to vote these candidates on the ballot and move forward, noting that the State and the candidates want to know. He expressed the desire to vote and clear this up so that this problem does not continue. Mr. Caldwell stated that he would like the candidates to be on the ballot for the people to make their decisions. Mr. Raymond advised that he agreed with nearly everything Mr. Caldwell had said, including the need to deal with this situation. He indicated that he would like to see all of these candidates running; however, members were talking about procedure. Mr. Caldwell indicated that this was why the Election Board should resolve it. Mr. Raymond expressed concern about accepting statements from individuals at the meeting, stating that members could not make a determination. He felt members should just take a vote.
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Mr. Caldwell questioned how members could vote when they did not know what had taken place, and Dr. Laws concurred. Mr. Raymond indicated that by accepting statements, members would get answers but would still not know exactly what went on and would be hearing one side of the story. Mr. Caldwell advised that the Election Board was not the State and could not resolve the situation, but at least they could get an idea of what these candidates had to go through. Mr. Raymond expressed his belief that testimony would muddy the waters. Mr. Caldwell asked if Mr. Neil filed his papers on time, and Mr. Neil responded that he had. Mr. Caldwell commented that this should have been the end of it. Mr. Raymond advised that members were not lawyers and that this was not an evidentiary hearing. Responding to Mr. Caldwell, Mr. Pepper advised Mr. Slavin would not have been on the ballot since his office was unopposed, so members would be considering removing the other two (2) candidates. Mr. Raymond asked if Mr. Slavin would still be considered a candidate. Mr. Pepper responded that Mr. Slavin was not a candidate because he was re-elected when he was unopposed at the filing deadline. Mr. Caldwell moved to declare Mr. Polce, Mr. Slavin, and Mr. Neil eligible as candidates and to allow them to remain on the ballot for the City of Dover election. The motion was seconded by Dr. Laws and unanimously carried. Mr. Caldwell moved for adjournment, seconded by Ms. McDowell Boyer and unanimously carried. Meeting adjourned at 4:29 p.m.
Curtis Raymond Interim Chair CR/TM/js S:\AGENDAS-MINUTES-PACKETS-PRESENTATIONS-ATT&EXH\Misc-Minutes\ELECTION BOARD\03-10-2017 Election Board.wpd
Attachments Attachment #1 - Email from Mrs. Traci McDowell, City Clerk, dated March 8, 2017 regarding City of Dover - Failure to Comply Attachment #2 - Filings Required by the State Election Commissioner’s Office Memorandum and Municipal Candidate Guideline Attachment #3 - Memorandum dated March 10, 2017 from Mr. Fred A. Neil regarding State Election Board Notice of a Violation Attachment #4 - Email dated March 8, 2017 from Mr. Fred Neil regarding City of Dover - Failure to Comply Attachment #5 - Email dated March 1, 2017 from Mr. Fred Neil regarding Special Election Board Meeting to Consider Failure to Comply
ATTACHMENT #1 Election Board Meeting of 03/10/2017 Stein, Jody From: Sent: To: Cc: Subject:
McDowell, Traci Wednesday, March 08, 2017 2:08 PM City Clerks Office Pepper, William W. FW: City of Dover- Failure to Comply
Please see the below correspondence related to the Failure to Comply issue being considered at the Election Board meeting on Friday, March 10, 2017 at 4:00 p.m. Thank you,
Traci A. McDowell, MMC
City Clerk City of Dover, Delaware e-mail: [email protected] Ph: (302) 736-7009 Fax: (302) 736-5068
This e-mail has been blind copied to the members of the Election Board In order to prevent a serial meeting, please do not respond to, nor discuss, this information with a quorum of Council or any committee prior to the meeting.
From: Bill Pepper [mailto:[email protected]] Sent: Monday, February 27, 2017 3:05 PM To: 'McDowell, Kenneth "Bo" (Elect_COE)'; McDowell, Traci Cc: 'COE_CampaignFinance'; 'Greenhow, Robin (Elect_COE)'; 'Webb, Cheryl (Elect_COE)'; 'Bueno, Millianie T (Elect_COE)'; City Clerks Office Subject: RE: City of Dover- Failure to Comply
Mr. McDowell, Thank you for your prompt response to the City Clerk. The matter has been referred to me for response as I advise the Dover Board of Elections as the Deputy City Solicitor. As I read 15 Del. C. §7555(d), a filing requirement is triggered by one of three things: (1) The office pays less than $1,000;
(2) The candidate intends to or does receive more than $2,000 in campaign contributions; or (3) The candidate intends to spend or does spend more than $2,000 in campaign expenses. Your email suggests that the statute is triggered when the office pays more than $1,000, but that it is contrary to the plain language of the statute. Chapter 80 requires a filing if the office pays more than $1,000 per year. But §7555 is self‐contained. Subsection (e) requires you to notify Dover’s Board if a candidate fails to comply with subsection (d). Subsection (f) requires Dover’s Board to disqualify candidates who do not comply with subsection (d). I do not see a failure to comply with subsection (d) as written. Perhaps the DAG assigned to the Elections Commissioner can contact me. 1
William W. Pepper Sr., Esquire Schmittinger and Rodriguez, P.A. 414 South State Street P.O. Box 497 Dover DE 19903 Voice 302.674.0140 [email protected] From: McDowell, Kenneth "Bo" (Elect_COE) [mailto:[email protected]] Sent: Monday, February 27, 2017 2:06 PM To: McDowell, Traci Cc: COE_CampaignFinance ; Greenhow, Robin (Elect_COE) ; Webb, Cheryl (Elect_COE) ; Bueno, Millianie T (Elect_COE) <[email protected]>; City Clerks Office ; Pepper, William W. <[email protected]> Subject: RE: City of Dover‐ Failure to Comply Ms. McDowell, Absolutely. This was brought to our attention by a candidate's treasurer that is in the race. Upon researching the situation, our office is required to notify the Board of Elections for the City of Dover. We are only concerned with the amount of time that passed between declaring candidacy (filling out candidate filing form) and registering a candidate committee with our office. All offices that make $1,000.00 or more are required to register a candidate committee according to state law. However, this isn't the question at hand and I responded to that inquiry from the City of Dover in the past. We are simply notifying the Board that these individuals didn't meet the 7 day requirement as prescribed by DE Code. Please let me know if you have further questions. Thanks, Bo From: McDowell, Traci [mailto:[email protected]] Sent: Monday, February 27, 2017 1:56 PM To: McDowell, Kenneth "Bo" (Elect_COE) Cc: COE_CampaignFinance; Greenhow, Robin (Elect_COE); Webb, Cheryl (Elect_COE); Bueno, Millianie T (Elect_COE); City Clerks Office; Pepper, William W. Subject: RE: City of Dover- Failure to Comply
Mr. McDowell: Would you please advise what triggered the requirement for Messrs. Polce, Neil and Slavin to file documents in accordance with 15 Del.C. §7555(d)? 15 Del. C. §7555(d) provides: “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 2
making expenditures or receiving contributions on behalf of the candidate or committee, the candidate shall notify the Commissioner and file a Statement of Organization.” (emphasis added) The yearly salary of a member of the City of Dover Council is not less than $1000. We have no evidence that suggests that any of the candidates have received more than $2000 in campaign contributions or have spent more than $2,000 for campaign expenses. Please reply to all. Thank you,
Traci A. McDowell, MMC
City Clerk City of Dover, Delaware e-mail: [email protected] Ph: (302) 736-7009 Fax: (302) 736-5068
From: McDowell, Kenneth "Bo" (Elect_COE) [mailto:[email protected]] Sent: Friday, February 24, 2017 11:40 AM To: Stein, Jody; City Clerks Office Cc: COE_CampaignFinance; McDowell, Kenneth "Bo" (Elect_COE); Greenhow, Robin (Elect_COE); Webb, Cheryl (Elect_COE); Bueno, Millianie T (Elect_COE) Subject: City of Dover- Failure to Comply Importance: 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: 3
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.
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ATTACHMENT #2 Election Board Meeting of 03/10/2017
FILINGS REQUIRED BY THE STATE ELECTION COMMISSIONER’S OFFICE All candidates for elected office in the City of Dover must meet campaign finance requirements as specified in Title 15 of the Delaware Code and as required by the Office of the State Election Commissioner. IF YOU FAIL TO FILE THE REQUIRED FORMS WITH THE OFFICE OF THE STATE ELECTION COMMISSIONER, YOUR MUNICIPAL BOARD OF ELECTIONS WILL BE INFORMED OF YOUR FAILURE TO FILE AND YOU MAY BE DENIED A POSITION ON THE BALLOT. If you have any questions, please contact the Office of the State Election Commissioner. Contact information is provided below: Office of the State Election Commissioner, Campaign Finance 905 S. Governors Avenue, Suite 170 Dover, DE 19904 Phone: (302) 739-4277 https://cfrs.elections.delaware.gov
I
, a candidate in the April 18, 2017 City of Dover Regular Municipal Election, (Name of Candidate)
received a copy of the Campaign Finance Section Municipal Candidate Guideline (CFFM033 V2.0 2015/04/21) on , 20
and I understand that I must file any forms required under Title 15 of the Delaware Code.
I also understand that failure to do so may result in removal of my name from the ballot.
CANDIDATE’S SIGNATURE
CLERK’S OFFICE SIGNATURE
S:\ELECTIONS - MUNICIPAL\2017 04-18 Election\NOMINATING PETITION & FILING DOCUMENTS\Municipal Campaign Finance Guidelines Memo-Rev. 12-05-2016.wpd
Campaign Finance Section Municipal Candidate Guideline
Welcome to Municipal Elections! In compliance with the Delaware Campaign Finance law, all municipal candidates must either file a Certification of Intention or form a Candidate Committee no later than seven (7) days after declaring candidacy. Please refer to the Delaware Code, Title 15, §7555(d)(e)(f) and §8004 for details. File a Certification of Intention
Office pays less than $1,000 per year and you intend or expect to receive or spend no more than $2,000 in your campaign. → How to file a Certification of Intention:
Go to https://cfrs.elections.delaware.gov Select ‘Certification of Intention’ Complete the application online Print, sign, and mail the document to: Office of the State Election Commissioner Attention: Campaign Finance 905 S. Governors Ave., Suite 170, Dover, DE 19904
NOTE: If you subsequently receive or spend over $2,000, you must then form a Candidate Committee within seven (7) days of exceeding $2,000, and you will be required to file Campaign Finance reports. 15 Del. C. §8004
Form a Candidate Committee
Office pays $1,000 or more; or
Office pays less than $1,000 and you intend or expect to receive or spend more than $2,000 during your campaign. → How to form a Candidate Committee:
Go to https://cfrs.elections.delaware.gov Select ‘Register a Candidate Committee’ Complete the registration online. This will create a Statement of Organization. Print the Statement of Organization, sign the document in the presence of a notary, and mail to: Office of the State Election Commissioner Attention: Campaign Finance 905 S. Governors Ave., Suite 170, Dover, DE 19904
Failure to comply with 15 Del. C. §7555(d)(e)(f) will require the State Election Commissioner to notify your municipality's Board of Elections and may result in the removal of your name from the ballot. Contact the Campaign Finance Team at (302) 739-4277 if you have questions or need assistance. Page 1 of 1
CFFM033 V2.0 2015/04/21
ATTACHMENT #3 Election Board Meeting of 03/10/2017
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P. 0. Box 475, Dover, Delaware 19903 + 302-736-7009 March 10, 2017 To: The Members of the City of Dover Election Board From: Fred A. Neil Re: State Election Board Notice of a Violation The violation notice of the failure to register a Campaign Committee within 7 days of being accepted as a candidate for re-election is draconian and may be unconstitutional. While, the failure to register a committee within that 7 day period could result in my being removed from the ballot, I have received an email from the State Election Office that my committee has been registered. If I fail to file a financial report on March 21, 2017, I could be fined, but not banished. The law calls for the State Election Board to provide the campaign committee filing material to the City Clerk for the candidates. They don't, instead they require candidates to sign a document saying they will go on the internet to the State Election Board website and register on line. Thanks to the Dover Public Library, an eligible indigent candidate could register, but would be stymied, as I was, in filing the information because they may not have a Cell Phone. By requiring a Cell Phone, not only for the candidate, but the candidate' s committee members as well. After being stymoied by this for several days, and not having an opponent, I thought I may not need a committee if I were to run unopposed. When 2 opponents filed on the last day to file, I mailed my committee information to the State Board. It was rejected! The only way I could register electronically, I was given permission by Robin Greenhow, of the State Election Office, to use the committee members, all retirees, home phone numbers already listed on the form. Where it called for Cell Phones. While I am not a lawyer, I believe requiring a candidate to have a Cell Phone and the financial cost of Service to operate it is unconstitutional. I could not find the use of a Cell Phone in the law. Therefore, if it is a requirement of State Election Board for their convenience, I can understand why they want this, but is it legal? Questions have also been raised as to exactly when the 7 day period begins. You have a legal brief on this, I believe. I also believe in not soliciting or accepting campaign contributions for this office. I did not in the 2015 campaign and I will not in 2017. To date, as duly reported on March 8, 2017 to the State Election Office, I paid $10.20 for labels to add to Lawn Signs I purchased for the 2015 election which say "Paid for by the Committee to Re-Elect Fred Neil." I pray that you will not make me "Walk the Plank to elected Oblivion" in this 2017 election.
ATTACHMENT #4 Election Board Meeting of 03/10/2017 McDowell, Traci From:
Sent: To:
Subject:
FRED Neil Wednesday, March 08, 2017 5:19 PM McDowell, Traci Fwd: RE: City of Dover- Failure to Comply
Please provide this to Attorney Bill Pepper. I hope he is feeling better on Friday.
Fred ---------- Original Message ---------From: "Manlove, Elaine M (Elect_COE)" <[email protected]> To: FRED Neil , "Lynn, Sean M (LegHall)" <[email protected]> Cc: Tim Slavin , Tanner Polee , COE_CampaignFinance Date: February 24, 2017 at 3:25 PM Subject: RE : City of Dover- Failure to Comply All of your documentation is complete .
From: FRED Neil [mailto:[email protected]] Sent: Friday, February 24, 2017 2:30 PM To: Manlove, Elaine M (Elect_COE); Lynn, Sean M (LegHall) Cc: Tim Slavin; Tanner Polee; COE_CampaignFinance Subject: Re: City of Dover- Failure to Comply
In my case it should be moot as I personally hand carried the required documents to the election office and received emails with a password, since changed to my personal password, which said that I was registered. I received a copy of the document I brought to the office. Unless they can't find a record of it, the problem may be with the staff at the office on S. Governor's. Fred Neil
On February 24, 2017 at 1:57 PM "Lynn, Sean M (LegHall)" <[email protected]> wrote: Gotcha. So if they DONT intend or spend more more than $2k, they are obligated to file a Certificate of Intention.
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If they do intend to raise or spend more than $2k they are not obligated to file one.
The jobs pay more than $1000.00, so that alone doesn't mean they have to file one.
Right? I was reading it backwards!
Sent from my iPhone
On Feb 24, 2017, at 1:54 PM, Manlove, Elaine M (Elect_COE) <[email protected]> wrote: This is from Title 15, Chapter 75:
(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 .
We must have the Certificate of Intention, however, w don't need the Statement of Organization unless the dollar figures come into play.
From: Lynn, Sean M (LegHall) Sent: Friday, February 24, 2017 1:45 PM To: Manlove, Elaine M (Elect_COE) Cc: COE_CampaignFinance; Fred Neil; Tanner Polee; Tim Slavin Subject: Re: City of Dover- Failure to Comply
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It looks like they can file either a Certificate of Intention OR a statement of organization within 7 days?
The requirement to file a Certificate of Intention looks like it's if the job pays less than $1 k or they raise or spend more than $2k?
Right?
Seems the problem may have been the timely filing of the Statement of Organization, but I am having trouble understanding why a Certification of Intention needs or needed to be filed?
Sent from my iPhone
On Feb 24, 2017, at 1:37 PM, Manlove, Elaine M (Elect_COE) <[email protected]> wrote : We need a Certificate of Intention within 7 days regardless. Then, a Statement of Organization if they plan to raise or spend $2,000.
The th ree listed have candidate committees at this point. Howeve r, they didn 't register them with us until after seven day period . They are currently in compliance but the code states that we have to ale rt the Board of Elections for the Municipality when candidates do not register a Certification of Intention or Candidate Committee within the seven day time frame .
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----- From: Lynn, Sean M (LegHall) Sent: Friday, February 24, 2017 1:07 PM To: COE_CampaignFinance; Manlove, Elaine M (Elect_COE) Cc: Fred Neil; Tanner Polee; Tim Slavin Subject: Fwd: City of Dover- Failure to Comply
To Whom It May Concern
I am writing with confusion relative to the below email and was hopeful the DoE can clarify same.
How does 15 Del. C. 7552(d) apply to Mr. Neil, Mr. Polee or Mr. Slavin, given the position for which they are running for pays more than $1000 and if they don't intend to raise more than $2000. 00 in contributions or expend more than $2000.00 for campaign expenses?
It seems that a Certificate oflntention is not required if they don't intend to raise more than $2k or expend more than $2k in campaign expenses. Am I incorrect?
Please advise.
Best regards, Sean Sent from my iPhone
Begin forwarded message: From: Tanner Polee Date: February 24, 2017 at 12:28:51 PM EST To: "Councilman Sean M. Lynn" , "Sean M. Lynn" <[email protected]> Subject: Fwd: FW: City of Dover- Failure to Comply 4
---------- Forwarded message ---------From: McDowell, Traci Date: Fri, Feb 24, 2017 at 12:17 PM Subject: FW: City of Dover- Failure to Comply To : City Clerks Office Cc: "Tanner Wm. Polee ([email protected])" , "Slavin, Timothy" , "Neil, Fred" , "Pepper, William W." <[email protected]> This e-mail has been blind copied to the City of Dover Election Board.
T~ A.
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