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In re Petition to Audit Campaign Fin. Reports of Jason Dawkins Candidate for the 179th Legis. Dist.

Commonwealth Court of Pennsylvania

August 27, 2014

In Re: Petition to Audit Campaign Finance Reports of Jason Dawkins Candidate for the 179th Legislative District. Petition of: Shakeya Gray, Tyree Campbell, Rev. James W. Clay, Sr., Phylicia Judge, Henry Watkins, Edward Webb and Thomas Neilson

Heard August 6, 2014

Publication Ordered September 16, 2014.

Court of ORIGINAL JURISDICTION.

Alexander Z. Talmadge, Jr., Philadelphia, for petitioners.

Robert T. Vance, Jr., Philadelphia, for respondents.

BEFORE: HONORABLE ANNE E. COVEY, Judge. OPINION BY JUDGE COVEY.

OPINION

ANNE E. COVEY, Judge

Jason Dawkins (Dawkins) won the May 2014 Democratic primary election for state representative of the 179th Legislative District over James W. Clay, Jr. (Clay). Shakeya Gray, Tyree Campbell, Rev. James W. Clay, Sr., Phylicia Judge, Henry Watkins, Edward Webb and Thomas Neilson (Neilson) (collectively, Petitioners) filed a Petition to Audit Campaign Finance Reports of Dawkins, " Friends of Jason Dawkins," " Moving Frankford Forward 527" and " Moving Frankford Forward" (Petition)[1] in this Court's original jurisdiction pursuant to Section 1636 of the Pennsylvania Election Code (Election Code),[2] 25 P.S. § 3256. Petitioners claim tat: (1) Dawkins, Thompson and Moving Frankford Forward willfully and fraudulently violated the Election Code by committing numerous campaign reporting violations as

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" Friends of Jason Dawkins" ; (2) Dawkins, Thompson and Moving Frankford Forward willfully and fraudulently violated the Election Code by committing numerous campaign reporting violations as " Moving Frankford Forward 527" ; and, (3) Moving Frankford Forward's union printing seal commonly known as the " union bug" was counterfeit and a fraudulent attempt to have voters believe the campaign paid for and used a union printing company to print Dawkins' campaign literature.

Dawkins and Moving Frankford Forward's treasurer Kisha Thompson (Thompson) (collectively, Respondents) answered the Petition. Respondents denied Petitioners' allegations, although they admitted that Moving Frankford Forward originally existed as an Internal Revenue Service (IRS) tax exempt 527 organization and stated that they had no knowledge of a campaign or political action committee under the name " Friends of Jason Dawkins."

Pursuant to this Court's June 30, 2014 order, Pennsylvania's Department of State (Department) certified that Moving Frankford Forward filed the following campaign finance reports:

a. 2014 24-Hour Campaign Finance Report (Cert. No. 2014-125B);
b. 2014 24-Hour Campaign Finance Report (Cert. No. 2014-126B);
c. 2014 2nd Friday Pre-Primary Campaign Finance Report (Cert. No. 2014-123B);
d. 2014 30-Day Post-Primary Campaign Finance Report (Cert. No. 2014-111B); and,
e. 2013 Annual Campaign Finance Report (Cert. No. 2014-122B).

Department's July 9, 2014 Certification (Dep't Cert.) at 1. The Department further certified that " [n]o campaign finance reports for Jason Dawkins, 'Friends of Jason Dawkins,' or 'Moving Frankford Forward []527[]' ha[d] been filed with the [Department]" as of July 9, 2014. Dep't Cert. at 2.

Campaign Finance Report Audit

The Pennsylvania Supreme Court has explained:

[T]he audit is the instrument that triggers the enforcement mechanism of the Election Code. The scope of these audits is not limited to whether the candidate's return is arithmetically correct; but extends to a determination of whether 'any person, whether a candidate or not, has accepted contributions or incurred expense or has expended or disbursed money in contravention of this act, or has otherwise violated any of the provisions of this act.' [Section] 1611(c) [of the Election Code], 25 P.S. [§ ] 3231(c)[3] (emphasis added).

Brunwasser v. Fields, 487 Pa. 283, 409 A.2d 352, 354 (Pa. 1979). This Court has made clear:

The Election Code reporting requirements carry out the evident legislative intent that expense accounts of candidates for public office be subject to the closest scrutiny. . . . In Commonwealth v. Beck, 810 A.2d 736 (Pa. Cmwlth. 2002), we explained:
The importance of campaign reporting requirements is obvious: by preserving public access to the manner in which campaign money is received and spent, public confidence in the election process is maintained. [Candidate's]

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willful refusal to comply with the registration and reporting requirements prevents verification of campaign receipts and expenses, thereby imperiling confidence in the election. This is the mischief the Legislature sought to avoid. . . .
Id
An audit is the enforcement mechanism used to carry out that intent. . . . If a trial court determines upon reviewing the audit that any person has accepted contributions, incurred expenses, expended or disbursed money in contravention of the Election Code or otherwise violated any provision of the Election Code, the trial court shall certify its decision to the appropriate prosecutorial officer who shall institute criminal proceedings as deemed necessary. [ See Section 1636(b) of the Election Code, 25 P.S. § 3256(b).] If a candidate is found by any court of this Commonwealth in criminal proceedings to have willfully accepted contributions or made any expenditure in contravention of the Election Code, the candidate may be subject to such penalties as forfeiture of office. [ See Section 1637 of the Election Code, 25 P.S. § 3257.] However, '[i]t can fairly be said that the legislature did not intend all violations--e.g., minor or trivial infractions--of the Election Code to be the basis for such harsh penalties as forfeiture of office or criminal prosecutions.' Brunwasser, . . . 409 A.2d at 356.

In re: Petition to Audit Campaign Fin. Reports of Cartwright, 900 A.2d 448, 453 (Pa. Cmwlth. 2006) (citations and footnotes omitted).

This Court conducted a hearing on August 6, 2014 in Philadelphia at which time Petitioners' counsel presented evidence in support of Petitioners' claims. Petitioners first called Thompson as a witness. Thompson confirmed Petitioners' claim that Moving Frankford Forward was originally formed in June 2013 as a " 527." Thompson testified that on June 10, 2013, she filed on Moving Frankford Forward's behalf IRS Form 8871 (Political Organization Notice of Section 527 Status) for exemption from filing IRS Form 990 (Return of Organization Exempt from Income Tax). Petition Ex. B. Moving Frankford Forward, with IRS 527 status, filed its initial Political Committee Registration Statement with the Department on June 14, 2013. Petition Ex. C.

Thompson explained that on January 14, 2014, after she received information from the Department regarding Moving Frankford Forward supporting a specific candidate, she filed an amended Political Committee Registration Statement with the Department designating Moving Frankford Forward as candidate Dawkins' authorized campaign committee. Moving Frankford Forward's authorized chairperson is D'Andra Lewis. Thompson is its authorized treasurer. See Hearing Exs. R-1, R-2. Thompson stated that, thereafter, Moving Frankford Forward did not exist as a 527. She also represented that Moving Frankford Forward did not coordinate with any candidate's campaign before it became candidate Dawkins' authorized campaign committee in January 2014. Thompson testified that she attended campaign finance report training, and regularly contacted the Department when she had recording and reporting questions.

Thompson recounted that Moving Frankford Forward received a loan from Joanna McClain (McClain) in the amount of $5,000.00, which was recorded as an unpaid debt on Schedule IV of Moving Frankford Forward's 2014 2nd Friday Pre-Primary Report. See Petition Ex. D; Dep't Cert. at 26. Thompson also acknowledged

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that Moving Frankford Forward received a loan from Dawkins in the amount of $5,006.39, which was recorded as an unpaid debt on Schedule IV of Moving Frankford Forward's 2014 2nd Friday Pre-Primary Report. See Petition Ex. D; Dep't Cert. at 26. Thompson explained that the Moving Frankford Forward expenses for which Dawkins' loan was made were recorded and itemized.

According to Thompson, she issued 3 or 4 checks on behalf of Moving Frankford Forward to Dynagraphix Media for Dawkins' print advertising. See Dep't Cert. at 23, 25, 39-40. She confirmed that Dynagraphix Media is a union printer and that its print advertising for Dawkins' campaign literature contained the union bug. She declared that there is not and has never been a candidate authorized committee known as " Friends of Jason Dawkins," and at no time was she treasurer of any such committee. Thompson admitted that Moving Frankford Forward's original advertising on mailing cards and pamphlets reflected that it was " Paid for by Friends of Jason Dawkins -- Kisha Thompson, Treasurer." Petition Ex. A. She explained that the Friends of Jason Dawkins reference on those materials was a printer's error, and that they should have reflected that they were " Paid for by Moving Frankford Forward -- Kisha Thompson, Treasurer."

Thompson stated that the inaccurate campaign advertising materials were mailed to voters' homes in the 179th Legislative District, and others were distributed by hand before the error was detected. Thompson acknowledged that although she issued the checks for the erroneous campaign advertising materials, she did not design the ads, approve the copy or examine their accuracy before they were distributed because that was beyond her responsibilities as committee treasurer. Thompson testified that she was not aware the materials were incorrect until she received the Petition in this litigation because she did not read the literature's fine print.

Thompson maintained that she attempted at all times to perform her duties as treasurer to the best of her ability, that Moving Frankford Forward's campaign finance reports were accurate, and that she did not have any intent to and did not believe she violated the Election Code. This Court found Thompson to be open and honest throughout her testimony. Accordingly, this Court deems credible Thompson's testimony relating to her training; the amendment of " Moving Frankford Forward 527" to Moving Frankford Forward as a candidate authorized committee; the printing error depicting " Friends of Jason Dawkins -- Kisha Thompson, Treasurer" ; and, Moving Frankford Forward's campaign finance reporting, specifically relating to the McClain and Dawkins' loans.

Petitioners next called Dawkins as a witness. Dawkins testified that when he decided to run for office, he attended Election Code and campaign reporting training at City Hall. He also explained that he conducted online research to familiarize himself with the law. Dawkins acknowledged his responsibility to abide by the Election Code.

Dawkins confirmed that he loaned Moving Frankford Forward $5,006.39 at its inception in January 2014 to cover up-front costs (i.e., volunteer and office expenses) until contributions were received. He described that Thompson kept receipts and an itemized list of the committee's expenses covered by his loan. He stated that his loan was properly reported on Moving Frankford Forward's campaign finance reports. See Petition Ex. D; Dep't Cert. at 26. He also testified that he reported

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the loan on his candidate campaign finance reports.

Dawkins acknowledged that his Cycle 2 and Cycle 3 candidate reports were filed on July 17, 2014,[4] after the Department notified him that his reports were overdue, and that he owed late fees. He admitted that he disregarded the first Department notice because he thought that since Moving Frankford Forward had reported the loan, he did not also have to report it. However, after he received the second late notice, he realized he was required to separately report the loan on an individual candidate's report, which he did immediately. Dawkins' Cycle 2 and Cycle 3 candidate filings are public records maintained on the Department's website. This Court takes judicial notice that the Department's website substantiates ...


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