October 1998 Meeting Minutes

INDIANA ELECTION COMMISSION

MINUTES

OCTOBER 14, 1998

MEMBERS PRESENT: Dudley Cruea, Chairman of the Indiana Election Commission [IEC]; S. Anthony Long, Vice-Chairman; Butch Morgan; Joseph M. Perkins, Jr.

MEMBERS ABSENT: None.

STAFF ATTENDING: Laurie P. Christie, Co-Director, Election Division, Office of the Indiana Secretary of State ("Election Division"); J. Bradley King, Co-General Counsel, IEC and Election Division; Kristi Robertson, Co-General Counsel, IEC and Election Division; Annette Craycraft, Co-Director, Campaign Finance, Election Division; Michelle Thompson, Co-Director, Campaign Finance, Election Division; Bruce Northern, NVRA and Precincts Coordinator.

ALSO ATTENDING: Ms. Tracy Mackey, Office of the Attorney General;

Dr. Ralph Anderson, of Logansport; Mr. Doug Arambule, of Hammond; Mr. Thomas E. Barnes, of Indianapolis; Mr. Paul T. Berkowitz, of Chicago; Ms. Diana M.H. Brenner, of Indianapolis; Ms. Jo R. Coleman, of Indianapolis; Mr. Steve Corey (Governmental Business Systems); Mr. Jack Halloran, of Indianapolis; Mr. John R. Helms, CPA, of Indianapolis; Mr. Wally Howard, of Indianapolis; Mr. Chuck McLean, of Indianapolis; Mr. Pat Whalen (Election Systems & Software); Mr. Brett Wineinger, of Indianapolis; and Mr. A. Brenner (?), an individual from Indianapolis representing SACKPAC (signature illegible).

1. CALL TO ORDER:

The chair called the October 14, 1998 meeting of the Indiana Election Commission to order at 10:10 a.m. in State House Room 233, 200 West Washington Street, Indianapolis, Indiana. He noted that proper notice of the meeting had been given, as required by state law, and that a quorum of Commission members was present. The chair noted that Mr. Morgan was absent, but was expected to arrive shortly.

A copy of the meeting notice and agenda is incorporated by reference in these minutes. [Copies of all documents incorporated by reference are available for public inspection and copying at the Election Division office.]

Indiana Election Commission Minutes

October 14, 1998

2. APPROVAL OF AUGUST 18, 1998 MINUTES:

The chair said that each Commission member had previously received a draft of the proposed Commission minutes for August 18, 1998 meeting. There being no additions or corrections, Mr. Perkins moved that the minutes be approved as presented. Mr. Cruea seconded the motion. There being no further discussion, the chair called the question, and declared that with three members voting "aye" (Mr. Cruea, Mr. Long, and Mr. Perkins), one member absent (Mr. Morgan), and no member voting "nay", the motion was adopted.

3. VOTING SYSTEM CERTIFICATIONS:

The chair recognized Mr. King, who noted that Commission members had received a copy of a letter dated September 4, 1998 from the Co-Directors to Mr. McGinnis of ES&S concerning the recertification of this voting system at the last Commission meeting. A copy of the letter is incorporated by reference in these minutes.

Mr. King stated that the PC-BT voting system had been recertified by the Commission pending receipt and Commission approval of the escrow agreement between ES&S and Granite City Record & Security Storage. He noted that on October 9, 1998, the Election Division had received an "Authorization for Access" form from Ms. Bonnie Cuellar of ES&S, but that he had not yet received a copy of the escrow agreement. A copy of this form is incorporated by reference in these minutes.

Mr. King remarked that since the Election Division had not yet received this escrow agreement, staff did not recommend further action by the Commission to approve the agreement at this time, but would present the agreement to the Commission at the first meeting following receipt of the agreement. Mr. King noted that Mr. Pat Whalen was present on behalf of ES&S.

The chair recognized Mr. Whalen, who said he had been working with Mr. King on this matter, and anticipated getting this document to the Election Division very shortly.

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October 14, 1998

The chair recognized Mr. King, who noted that this voting system had also been recertified by the Commission earlier this year. He added that the Election Division has not yet received the text of the escrow agreement between GBS and Fort Knox Escrow Services, Inc. and noted that Mr. Steve Corey of GBS was present to discuss this issue.

The chair recognized Mr. Corey, who stated that GBS has submitted all of the software for this voting system to Fort Knox for escrow. He indicated that he hoped that Mr. King had received a copy of this agreement from Fort Knox Escrow before this meeting, but indicated that Mr. King should expect to receive this agreement within the next seven to ten days. Mr. Corey stated that he anticipated that this matter could be resolved before the next Commission meeting.

The chair recognized Mr. Long, who asked what would result if one or both vendors did not supply these escrow agreements before the next Commission meeting. Mr. King responded that although the voting system statute did not address escrow agreements specifically, the statute does require that a vendor to continuously and diligently participate in the voting system recertification process. He stated that the Commission would have the right to reconsider a vendor's application for voting system recertification if a problem of this sort occurred. Mr. Long requested that the escrow agreements be included on the agenda of the next Commission meeting.

The chair recognized Mr. Perkins, who reminded the Commission that he had expressed his concern at the August 18 Commission meeting that the escrow requirements be complied with. He stated that it would be irresponsible for him to not to ask whether it would take another month and a half to resolve this matter. He indicated to both vendors that he had expected that this matter would be completed by this time, since more than six weeks had passed since the last Commission meeting, and that he definitely wished for this matter to be completed before the next Commission meeting.

The chair recognized Mr. Long, who expressed his agreement with Mr. Perkins's remarks. He noted that it was important to protect the Election Division's access to this escrowed software, and indicated that it might be preferable to require that the approval of the escrow agreement be part of the recertification package, and that recertification not be approved unless the escrow agreement has already been provided to the Election Division. He remarked that in his experience escrow agreements should be quickly obtainable. Mr. Long stated that he did not understand why it would take more than a day for the escrow depository to supply this contract. The chair directed that this item be included on the next Commission meeting agenda.

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October 14, 1998

The chair recognized Mr. King the application for the certification of this new voting system was still pending before the Commission. He noted that GBS representatives had indicated at a previous meeting that a revised voting system would be submitted to the Commission in the near future, rather than the version of the voting system included in the initial application.

The chair recognized Mr. Corey, who stated that GBS had decided to wait until after January 1, 1999 to conduct a demonstration of the direct recording electronic voting system before the Commission. He noted that the last several months had been a hectic time for GBS as it worked to prepare its Indiana county customers for the November 1998 general election, and that this work had also delayed finalization of the voting system escrow. Mr. Corey advised Mr. King that he would follow up with him during the coming week, and that he should expect to receive the Fort Knox escrow agreement by week's end. Mr. King thanked Mr. Corey for his cooperation.

The chair recognized Mr. King, who stated that Commission members had received the following documents: (1) a memorandum dated August 25, 1998 from the Election Division to the counties using ballot card voting systems, which set forth the statutory requirements and Commission's position on enforcement of the law as it currently exists; (2) a letter dated August 25, 1998 from Mr. Whalen of ES&S to Mr. King, with an enclosed sample letter from ES&S to its county customers concerning this requirement; and (3) a list dated July 9, 1998 from the National Association of State Election Directors (NASED) setting forth the voting systems qualified by NASED. Copies of these documents are incorporated by reference in these minutes.

Mr. King indicated that the Election Division had worked with the voting system vendors to ensure that the counties using ballot cards would comply with the statutory requirements during the 1998 general election. He added that the Census Data Advisory Committee, which is composed primarily of state legislators, had endorsed legislation for the 1999 session that would exempt optical scan ballot card voting systems from the current requirement to contain dual security numbered stubs. The chair thanked Mr. King, and asked staff to continue to work with the legislature for the enactment of this legislation.

Indiana Election Commission Minutes

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4. CANDIDATE ELIGIBILITY DETERMINATION:

The chair recognized Ms. Robertson, who stated that Commission members had received a copy of a correction to the Final Order previously adopted in this matter. She noted that the designation of the Final Order was corrected to read "Final Order 1998-106." Mr. Long moved, seconded by Mr. Perkins, that the correction to this Final Order be adopted. There being no further discussion, the chair called the question, and declared that with three members voting "aye" (Mr. Cruea, Mr. Long, and Mr. Perkins), one member absent (Mr. Morgan), and no member voting "nay", the motion was adopted.

The chair recognized Ms. Robertson, who stated that Commission members had been provided with a draft of the proposed Findings of Fact and Final Order 1998-108 in this matter. A copy of the Findings of Fact and Final Order are incorporated by reference in these minutes. After reviewing these documents, Mr. Cruea moved, seconded by Mr. Perkins, that the proposed Findings of Fact and Final Order in this matter be adopted. There being no further discussion, the chair called the question, and declared that with three members voting "aye" (Mr. Cruea, Mr. Long, and Mr. Perkins), one member absent (Mr. Morgan), and no member voting "nay", the motion was adopted.

The chair recognized Ms. Robertson, who stated that Commission members had received a copy of a correction to the Final Order previously adopted in this matter. She noted that the designation of the Final Order was corrected to read "Final Order 1998-107." Mr. Long moved, seconded by Mr. Perkins, that the correction to this Final Order be adopted. There being no further discussion, the chair called the question, and declared that with three members voting "aye" (Mr. Cruea, Mr. Long, and Mr. Perkins), one member absent (Mr. Morgan), and no member voting "nay", the motion was adopted.

Indiana Election Commission Minutes

October 14, 1998

The chair recognized Mr. King, who stated that Commission members had received a copy of the letter dated September 10, 1998 from the Co-Directors to Mr. Phillips concerning this matter. A copy of the letter is incorporated by reference in these minutes.

5. CAMPAIGN FINANCE ENFORCEMENT:

The chair remarked that individuals who wished to make an opening statement in these matters should limit their statements to three minutes. He noted that any questions asked by Commission members would not count against the time allowed for opening remarks. The chair asked all individuals who wished to testify before the Commission today to stand for the administration of the oath. Mr. King then administered the oath to these individuals.

The chair recognized Ms. Thompson, who presented a two page spread sheet to Commission members summarizing the Election Division's information concerning this and other campaign finance enforcement causes. The Commission accepted this document into evidence in these matters by consent. A copy of this spread sheet is incorporated by reference in these minutes.

Ms. Thompson stated that the proposed civil penalty in this matter was One Thousand Eleven Dollars and Eight Cents ($1,011.08), being One Thousand Dollars ($1,000) for a delinquent annual report due on January 21, 1998, and Eleven Dollars and Eight Cents ($11.08) in certified mail costs. She added that this committee had not previously been brought before the Commission for a campaign finance enforcement cause.

Ms. Thompson noted that at the previous Commission meeting when this cause was considered, the matter had been continued to permit this candidate to file the necessary documents to close this committee. She reported that she had sent a memorandum dated June 26, 1998 to this committee concerning the Commission's action at its June 25, 1998, and added that the committee had been closed on October 13, 1998. Ms. Thompson noted that Commission members had also received a letter from Marty Pieratt, dated October 13, 1998. A copy of the memorandum and letter are incorporated by reference in these minutes.

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The chair asked if any individual was present to testify regarding this matter. There was no response. There being no further discussion, Mr. Cruea moved, seconded by Mr. Perkins, that the hearing in this matter be closed. The Commission adopted this motion by consent.

Mr. Long and the chair noted that in previous cases, the Commission had reduced the amount of the proposed fine when a candidate's committee had not raised or spent any funds, and when the candidate had subsequently disbanded the committee. Mr. Long noted that this candidate had financed his own campaign.

Mr. Long moved, seconded by Mr. Cruea, that the Commission find that the imposition of the proposed civil penalty under Indiana Code 3-9-4-16 would be unjust under these circumstances, that the civil penalty be reduced to the amount of Two Hundred Fifty Dollars ($250), plus Eleven Dollars and Eight Cents ($11.08) for investigative costs incurred and documented by the Election Division, and that a total civil penalty of Two Hundred Sixty One Dollars and Eight Cents ($261.08) be imposed against the committee in this cause. Noting that a unanimous vote of all Commission members would be required under the statute for this motion to pass, the Commission consented to Mr. Long's request to table this motion until Mr. Morgan arrived.

Upon the subsequent arrival of Mr. Morgan, and after according him an opportunity to review the evidence in this matter, the Commission consented to take this motion off the table. There being no further discussion, the chair called the question, and declared that with four members voting "aye" (Mr. Cruea, Mr. Long, Mr. Morgan, and Mr. Perkins), and no member voting "nay", the motion was adopted.

The chair recognized Ms. Thompson, who stated that the proposed civil penalty in this matter was Nine Hundred Five Dollars and Fifty Four Cents ($905.54), being Nine Hundred Dollars ($900) for a delinquent pre-primary report due April 17, 1998, and Five Dollars and Fifty-Four Cents ($5.54) in certified mail costs. She added that this committee had previously been brought before the Commission for one campaign finance enforcement cause. Ms. Thompson also submitted a copy of the CFA-4 form filed by this committee on May 5, 1998. The Commission consented to the introduction of this document as evidence in this cause. A copy of the form is incorporated by reference in these minutes.

The chair recognized Ms. Diana Brenner, who stated that she served as secretary of this committee. Ms. Brenner said that she had volunteered to serve in this position, and had delegated the responsibility for filing these reports to her newly hired business manager. She testified that she assumed that the report had been filed until she was notified that the report was delinquent. Ms. Brenner stated that her business manager had incorrectly assumed that because the PAC had

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not received contributions nor made expenditures that there was no requirement to file a pre-primary report. She indicated that she filed the report immediately upon learning that a report was required, and that the committee had a cash balance of less than $150 at that time.

Ms. Brenner testified that the committee filed its most recent report before the deadline, and that the committee now had a balance of approximately $700. She added that she had advised the manager that since this committee is a volunteer organization, she did not expect the PAC to pay any penalty, but would dock his pay. She noted that the manager would not quickly forget this matter since he is also her husband. In response to a question from the chair, Ms. Brenner stated that she was unaware that the committee had been late in filing a previous report.

There being no further discussion, Mr. Cruea moved, seconded by Mr. Perkins, that the hearing in this matter be closed. The Commission adopted this motion by consent. The chair noted that since the committee had been delinquent in filing a report on one previous occasion, he believed that the Commission should reduce the proposed fine in this matter, but not to the same extent as committees which had no previous delinquencies. Mr. Cruea then moved, seconded by Mr. Long, that the Commission find that the imposition of the proposed civil penalty under Indiana Code 3-9-4-16 would be unjust under these circumstances, that the civil penalty be reduced to the amount of Five Hundred Dollars ($500), plus Five Dollars and Fifty Four Cents ($5.54) for investigative costs incurred and documented by the Election Division, and that a total civil penalty of Five Hundred Five Dollars and Fifty Four Cents ($505.54) be imposed against the committee in this cause. Noting that a unanimous vote of all Commission members would be required under the statute for this motion to pass, the Commission consented to Mr. Cruea's request to table this motion until Mr. Morgan arrived.

Upon the subsequent arrival of Mr. Morgan, and after according him an opportunity to review the evidence in this matter, the Commission consented to take this motion off the table. There being no further discussion, the chair called the question, and declared that with four members voting "aye" (Mr. Cruea, Mr. Long, Mr. Morgan, and Mr. Perkins), and no member voting "nay", the motion was adopted.

The chair recognized Ms. Thompson, who stated that the proposed civil penalty in this matter was One Thousand Five Dollars and Fifty Four Cents ($1,005.54), being One Thousand Dollars $1,000) for a delinquent pre-primary report due on April 17, 1998, and Five Dollars and Fifty Four Cents ($5.54) in certified mail costs. She added that this committee had previously been brought before the Commission for one campaign finance enforcement cause. Ms. Thompson also submitted a copy of a letter dated June 9, 1998 from Mr. Boerger, the treasurer of this committee. The Commission consented to the introduction of this document as evidence in this cause. A copy

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of the form is incorporated by reference in these minutes.

The chair recognized Mr. John Earnest, chairman of this committee. Mr. Earnest stated that he was not an attorney, just a health care administrator. He stated that just before the last Commission meeting which was to consider this cause, he was advised that the committee's report had been filed late.

Mr. Earnest stated that he had since discussed this matter with the committee's treasurer, and that the committee's 1998 pre-election report had already been completed and would be filed before the deadline. He said he understood that the committee had been delinquent in filing a report on one previous occasion before March 1997. Mr. Earnest stated that he and Mr. Boerger had become chairman and treasurer during 1997, and that their predecessors had been incapacitated by a stroke and a heart attack, respectively. He testified that the committee had erred and would accept its penalty in this matter.

There being no further discussion, Mr. Cruea moved, seconded by Mr. Perkins, that the hearing in this matter be closed. The Commission adopted this motion by consent. Mr. Long moved, seconded by Mr. Perkins, that the Commission find that the imposition of the proposed civil penalty under Indiana Code 3-9-4-16 would be unjust under these circumstances, that the civil penalty be reduced to the amount of Five Hundred Dollars ($500), plus Five Dollars and Fifty Four Cents ($5.54) for investigative costs incurred and documented by the Election Division, and that a total civil penalty of Five Hundred Five Dollars and Fifty Four Cents ($505.54) be imposed against the committee in this cause. Noting that a unanimous vote of all Commission members would be required under the statute for this motion to pass, the Commission consented to Mr. Cruea's request to table this motion until Mr. Morgan arrived.

Upon the subsequent arrival of Mr. Morgan, and after according him an opportunity to review the evidence in this matter, the Commission consented to take this motion off the table. There being no further discussion, the chair called the question, and declared that with four members voting "aye" (Mr. Cruea, Mr. Long, Mr. Morgan, and Mr. Perkins), and no member voting "nay", the motion was adopted.

The chair recognized Ms. Thompson, who stated that the proposed civil penalty in this matter was One Thousand Five Dollars and Fifty Four Cents ($1,005.54), being One Thousand Dollars $1,000) for a delinquent pre-primary report due on April 17, 1998, and Five Dollars and Fifty Four Cents ($5.54) in certified mail costs. She added that this committee had not previously been brought before the Commission for a campaign finance enforcement cause. Ms. Thompson also submitted a copy of a facsimile transmission dated May 21, 1998 from "Marlene, Local #374."

Indiana Election Commission Minutes

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The Commission consented to the introduction of this document as evidence in this cause. A copy of the form is incorporated by reference in these minutes. Mr. Morgan arrived at this time.

The chair recognized Mr. Paul Berkowitz, who noted that the chairman of this committee was also present. He stated that the committee had no excuse, and apologized for its late filing. He stated that the committee's upcoming report had already been prepared and would be filed later today with the Election Division.

There being no further discussion, Mr. Cruea moved, seconded by Mr. Perkins, that the hearing in this matter be closed. The Commission adopted this motion by consent. Mr. Long noted that the committee had no previous penalties assessed for filing delinquent reports.

Mr. Long moved, seconded by Mr. Perkins, that the Commission find that the imposition of the proposed civil penalty under Indiana Code 3-9-4-16 would be unjust under these circumstances, that the civil penalty be reduced to the amount of Two Hundred Fifty Dollars ($250), plus Five Dollars and Fifty Four Cents ($5.54) for investigative costs incurred and documented by the Election Division, and that a total civil penalty of Two Hundred Fifty Five Dollars and Fifty Four Cents ($255.54) be imposed against the committee in this cause. There being no further discussion, the chair called the question, and declared that with four members voting "aye" (Mr. Cruea, Mr. Long, Mr. Morgan, and Mr. Perkins), and no member voting "nay", the motion was adopted.

The chair recognized Ms. Thompson, who stated that this committee had filed a motion to reconsider in the form of a letter from Ms. Shari Cannon, Controller, dated July 6, 1998, a copy of which had been provided to Commission members. The Commission consented to the introduction of this document as evidence in this cause. A copy of the form is incorporated by reference in these minutes.

After Commission members reviewed this letter, Mr. Cruea asked if any individual was present to speak on this cause. There was no response. Mr. Cruea then moved, seconded by Mr. Perkins, that the motion to reconsider be denied. There being no further discussion, the chair called the question, and declared that with four members voting "aye" (Mr. Cruea, Mr. Long, Mr. Morgan, and Mr. Perkins), and no member voting "nay", the motion was adopted.

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The chair recognized Ms. Thompson, who stated that this committee had filed a motion to reconsider in the form of a letter from Mr. John R. Helms, C.P.A., dated August 21, 1998, a copy of which had been provided to Commission members. The Commission consented to the introduction of this document as evidence in this cause. A copy of the letter is incorporated by reference in these minutes. After Commission members reviewed this letter, Mr. Cruea asked if any individual was present to speak on this cause.

The chair recognized Mr. Helms, who requested that the committee's civil penalty be waived in this case. He noted that the committee had been late once before, but only by a matter of hours, and had paid its proposed penalty at the same time that the committee filed its report. Mr. Helms stated that the committee had not received the required forms before this filing deadline date. He remarked that the treasurer of the committee had been advised by the Election Division staff that some of these forms had not been mailed out to committees. Mr. Helms stated that the committee had the good fortune to discover this delinquency shortly after the filing deadline and had already prepared the report due this coming Friday.

There being no further discussion, Mr. Cruea moved, seconded by Mr. Perkins, that the hearing in this matter be closed. The Commission adopted this motion by consent. Mr. Long noted that the general assembly had made significant changes in the penalties and filing requirements since the last delinquency experienced by this committee. He added that the Commission had probably already mitigated the proposed civil penalty.

Mr. Long moved, seconded by Mr. Perkins, that the motion to reconsider be denied. There being no further discussion, the chair called the question, and declared that with four members voting "aye" (Mr. Cruea, Mr. Long, Mr. Morgan, and Mr. Perkins), and no member voting "nay", the motion was adopted.

The chair recognized Ms. Thompson, who stated that this committee had filed a motion to reconsider in the form of a letter from Ms. Jo R. Coleman, treasurer, dated July 15, 1998, a copy of which had been provided to Commission members. The Commission consented to the introduction of this document as evidence in this cause. A copy of the letter is incorporated by reference in these minutes. After Commission members reviewed this letter, Mr. Cruea asked if any individual was present to speak on this cause.

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The chair recognized Ms. Coleman, who requested that the committee's civil penalty be waived in this case. Ms. Coleman stated that the Reform Party was a new regular party committee, and had understood that it would not be required to file a campaign finance report during 1998.

Mr. Long requested that legal staff address the filing requirements for regular party committees set forth in Indiana Code 3-9-5-6, and addressed in Ms. Coleman's letter. Mr. King responded that it was correct to say that the changes made by the legislature in 1997 to IC 3-9-5-6 have resulted in some confusing statutory language. He noted that the Census Data Advisory Committee had also endorsed legislation for the 1999 session to clarify the definition of "nomination date" as it relates to political parties which nominate candidates by petition. He added that beginning with the enactment of the Indiana Campaign Finance Act in 1977 and for the twenty year period following that date, regular party committees have been required to file reports twice a year in the election cycle, before the primary and before the general election. Mr. King noted that the practice of the State Election Board and the Election Commission over this twenty year period had been to advise all political parties, including the Libertarian Party and other minor parties, that these types of parties were required to file pre-primary reports.

The chair noted that the proposed civil penalty had already been reduced by the Commission. Mr. King added that this committee had also entered into a consent agreement with the Election Division for the payment of this penalty in installments, and that the Commission had approved this agreement at its last meeting. Mr. Long stated that he did not understand why this committee was confused concerning its requirement to file a pre-primary report. Ms. Coleman responded that the confusion occurred because the committee assumed that the filing requirement did not apply to the party, and did not contact the Election Division soon enough concerning this matter. Mr. Long stated that if reasonable people could be confused regarding a filing requirement, he favored some relief in such cases. In response to a question from the chair, Ms. Thompson stated that five other regular party committees were registered with the Election Division, and that all of these committees had filed this pre-primary report on time.

There being no further discussion, Mr. Cruea moved, seconded by Mr. Perkins, that the hearing in this matter be closed. The Commission adopted this motion by consent. Mr. Long moved, seconded by Mr. Cruea, that the motion to reconsider be denied. There being no further discussion, the chair called the question, and declared that with four members voting "aye" (Mr. Cruea, Mr. Long, Mr. Morgan, and Mr. Perkins), and no member voting "nay", the motion was adopted.

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The chair recognized Ms. Thompson, who stated that this committee had filed a motion to reconsider in the form of a letter from Mr. A. Brenner (sp?), assistant treasurer, dated June 12, 1998, a copy of which had been provided to Commission members. The Commission consented to the introduction of this document as evidence in this cause. A copy of the letter is incorporated by reference in these minutes. After Commission members reviewed this letter, Mr. Cruea asked if any individual was present to speak on this cause.

The chair recognized Mr. Howard, chairman of this committee, who respectfully requested that the Commission waive the penalty against this committee. Mr. Howard stated that he had intended to close out the SACK PAC state fund, but had not checked the "Final/Disbands" box when he completed the final report. He said that the committee thought it had done everything it was supposed to for the committee to be closed, but was subsequently notified that the committee had done something wrong and was assessed a fine. Mr. Howard stated that the committee then revised the filing to cover the period from January 1, 1997 to December 31, 1997.

Mr. Howard noted that this amended report again showed all zeroes, indicating that the committee had not received contributions or made expenditures during this period. He stated that he had since been advised by Ms. Thompson that the committee is shown as "closed" in the records of the Election Division. He repeated his request for a waiver of penalty due to the administrative error in completing the final report for this committee. In response to a question from Mr. Howard, Ms. Thompson stated that she understood this information to be correct, and noted that the committee had been closed when it filed its 1998 pre-primary report. In response to a question from Mr. Long, Ms. Thompson stated that the committee had amended its 1997 annual report at the same time that it filed the 1998 pre-primary report.

Mr. Cruea noted that the committee had been late in filing its 1993 annual, 1994 pre-primary, 1995 annual, 1996 pre-primary, 1996 pre-election, and the 1998 pre-primary reports. Mr. Howard responded that he was unaware of the earlier delinquencies. Mr. Cruea stated that the Commission had voted to impose the full civil penalty since this was the sixth delinquent report from this committee. Mr. Howard stated that he did not know how the previous delinquencies had been resolved, but that the report before the Commission today was delinquent due to the failure of the committee to indicate "Final/Disbands" on the form. In response to a question from Mr. Morgan, Mr. Howard stated that there were no plans for further activity by the committee at this time.

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There being no further discussion, Mr. Cruea moved, seconded by Mr. Perkins, that the hearing in this matter be closed. The Commission adopted this motion by consent. Mr. Long moved, seconded by Mr. Cruea, that the motion to reconsider be denied due to the multiple late filings by this committee in the past. There being no further discussion, the chair called the question, and declared that with four members voting "aye" (Mr. Cruea, Mr. Long, Mr. Morgan, and Mr. Perkins), and no member voting "nay", the motion was adopted.

In response to a question from Mr. Howard, the chair stated that the full proposed fine stood, and had been assessed due to the committee's repeated delinquencies in the past. Mr. Howard stated that the committee had a zero balance. The chair reminded Mr. Howard that the hearing in this cause had been closed.

The chair recognized Ms. Thompson, who stated that this committee had filed a motion to reconsider in the form of a letter from Mr. Thomas E. Barnes, CPA, dated July 8, 1998, a copy of which had been provided to Commission members. The Commission consented to the introduction of this document as evidence in this cause. A copy of the letter is incorporated by reference in these minutes. After Commission members reviewed this letter, Mr. Cruea asked if any individual was present to speak on this cause.

The chair recognized Mr. Barnes, who stated that he served as CPA for the services corporation which puts on the convention for this organization. He respectfully requested that the Commission waive the penalty against this committee, and noted that this committee had not been active in recent times. The chair noted that this committee had been organized in 1996. In response to a question from the chair, Mr. Barnes stated that he had been involved with this committee since November 1997. The chair remarked that this committee was late on its 1996 annual report, 1996 pre-primary, 1996 pre-election report, and the 1998 pre-primary report. Mr. Barnes stated that he was unaware of the pre-1997 delinquencies. In response to a question from the chair, Mr. Barnes stated that the committee did not plan to disband and was aware of the requirement to file a 1998 pre-election report. Mr. Barnes added that the committee had not received any information or forms concerning the requirement to file the 1998 pre-primary report.

There being no further discussion, Mr. Cruea moved, seconded by Mr. Perkins, that the hearing in this matter be closed. The Commission adopted this motion by consent. Mr. Perkins moved, seconded by Mr. Morgan, that the motion to reconsider be denied. There being no further discussion, the chair called the question, and declared that with four members voting "aye" (Mr. Cruea, Mr. Long, Mr. Morgan, and Mr. Perkins), and no member voting "nay", the motion was adopted.

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The chair recognized Ms. Thompson, who stated that this committee had filed a motion to reconsider in the form of a letter from Mr. David L. Copenhaver dated March 26, 1998, which had been provided to Commission members. The Commission consented to the introduction of this document as evidence in this cause. A copy of the letter is incorporated by reference in these minutes.

After Commission members reviewed this letter, Mr. Cruea asked if any individual was present to speak on this cause. There was no response. Mr. Cruea then moved, seconded by Mr. Perkins, that the motion to reconsider be denied. There being no further discussion, the chair called the question, and declared that with four members voting "aye" (Mr. Cruea, Mr. Long, Mr. Morgan, and Mr. Perkins), and no member voting "nay", the motion was adopted.

The chair recognized Ms. Thompson, who stated that this committee had filed a motion to reconsider in the form of a letter from Ms. Lynne C. Hengle, Chief Deputy Liquidator of the P.I.E. Mutual Insurance Company, dated July 10, 1998, which had been provided to Commission members. The Commission consented to the introduction of this document as evidence in this cause. A copy of the letter is incorporated by reference in these minutes.

After Commission members reviewed this letter, Mr. Cruea asked if any individual was present to speak on this cause. There was no response. Mr. Cruea then moved, seconded by Mr. Perkins, that the motion to reconsider be denied. There being no further discussion, the chair called the question, and declared that with four members voting "aye" (Mr. Cruea, Mr. Long, Mr. Morgan, and Mr. Perkins), and no member voting "nay", the motion was adopted.

The chair recognized Ms. Thompson, who stated that this committee had filed a motion to reconsider in the form of a letter from Mr. Jeff Quyle, treasurer, dated July 2, 1998, which had been provided to Commission members. The Commission consented to the introduction of this document as evidence in this cause. A copy of the letter is incorporated by reference in these minutes.

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After Commission members reviewed this letter, Mr. Cruea asked if any individual was present to speak on this cause. There was no response. Mr. Cruea then moved, seconded by Mr. Perkins, that the motion to reconsider be denied. There being no further discussion, the chair called the question, and declared that with four members voting "aye" (Mr. Cruea, Mr. Long, Mr. Morgan, and Mr. Perkins), and no member voting "nay", the motion was adopted.

The chair recognized Ms. Thompson, who stated that this committee had filed a motion to reconsider in the form of a letter from Ms. Lynne T. Moistner, assistant executive director, dated June 4, 1998, which had been provided to Commission members. The Commission consented to the introduction of this document as evidence in this cause. A copy of the letter is incorporated by reference in these minutes. Ms. Robinson also noted that an error had been made in the omission of this committee from part of the Final Order in this cause.

After Commission members reviewed this letter, Mr. Cruea asked if any individual was present to speak on this cause. There was no response. Mr. Cruea then moved, seconded by Mr. Perkins, that the motion to reconsider be denied. There being no further discussion, the chair called the question, and declared that with four members voting "aye" (Mr. Cruea, Mr. Long, Mr. Morgan, and Mr. Perkins), and no member voting "nay", the motion was adopted.

The chair recognized Ms. Thompson, who stated that this committee had filed a motion to reconsider in the form of a letters from Ms. Tobey J. Chappell, executive officer, Home Builders Association of St. Joseph Valley, dated October 1, 1998 and May 29, 1998, which had been provided to Commission members. The Commission consented to the introduction of these documents as evidence in this cause. Copies of the letters are incorporated by reference in these minutes.

After Commission members reviewed this letter, Mr. Cruea asked if any individual was present to speak on this cause. There was no response. Mr. Cruea then moved, seconded by Mr. Perkins, that the motion to reconsider be denied. There being no further discussion, the chair called the question, and declared that with four members voting "aye" (Mr. Cruea, Mr. Long, Mr. Morgan, and Mr. Perkins), and no member voting "nay", the motion was adopted.

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The chair recognized Ms. Thompson, who stated that this committee had filed a motion to reconsider in the form of a letter from Mr. Jason D. Dunstan, treasurer, received by the Election Division June 9, 1998, which had been provided to Commission members. The Commission consented to the introduction of this document as evidence in this cause. A copy of the letter is incorporated by reference in these minutes.

After Commission members reviewed this letter, Mr. Cruea asked if any individual was present to speak on this cause. There was no response. Mr. Cruea then moved, seconded by Mr. Perkins, that the motion to reconsider be denied. There being no further discussion, the chair called the question, and declared that with four members voting "aye" (Mr. Cruea, Mr. Long, Mr. Morgan, and Mr. Perkins), and no member voting "nay", the motion was adopted.

The chair recognized Ms. Thompson, who stated that the proposed civil penalty in this matter was Two Hundred Two Dollars and Seventy Seven Cents ($202.77), being Two Hundred Dollars ($200) for a delinquent pre-convention report due on May 18, 1998, and Two Dollars and Seventy Seven Cents ($2.77) in certified mail costs. She added that this committee had not previously been brought before the Commission for a campaign finance enforcement cause.

Ms. Thompson stated that this committee had filed a letter with the Election Division, and presented a copy of a facsimile transmission from Dr. Ralph Anderson, dated May 22, 1998, which she provided to Commission members. The Commission consented to the introduction of this document as evidence in this cause. Copies of the letter are incorporated by reference in these minutes.

After Commission members reviewed this letter, the chair asked if any individual was present to testify regarding this matter. The chair recognized Dr. Anderson, who stated that the 1998 Campaign Finance Manual indicated that a hand delivered report could be timely filed by a convention candidate seven days before the convention. He noted that the Manual indicated that the deadline for mailing reports might be changed by the 1998 session of the general assembly, but did not refer to possible changes in the deadline for hand delivered reports.

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Dr. Anderson said that the Saturday morning after the convention filing deadline, one of the statewide candidates mentioned to him that he had not filed his campaign finance report. Dr. Anderson stated that he then re-examined his calendar and the Manual, and believed that his committee's report was not past due, since a hand delivered report was due seven days before the convention. He added that the Manual did advise candidates to contact the Election Division during 1998 since the deadline for mailing reports might be changed by the General Assembly.

Dr. Anderson stated that on Tuesday, October 27, he was advised by the Republican State Committee that he had not filed a campaign finance report, and was told that the filing deadline had changed. He added that he had not received any forms or notice concerning the changed deadline from the Election Division. Dr. Anderson testified that within two hours after this conversation, he sent a report by FAX to the Election Division, and simultaneously mailed a copy of the report to the Election Division. He remarked that he did miss the filing deadline, but had mistakenly relied on the information concerning hand delivery of reports as set forth in the Manual.

Dr. Anderson inquired whether his committee would be required to file another report before the end of 1998, or whether the committee's next filing deadline would be in January 1999. At the request of the chair, Mr. King responded by stating that Indiana Code 3-9-5-9(c) provided that a candidate defeated at a nominating convention, and who will therefore not appear on the general election ballot, is not required to file a pre-election report in October 1998, but would file a year-end report in January 1999, and that this information is set forth in the Manual.

In response to a question from Mr. Long concerning the attachment to his facsimile transmission, Dr. Anderson stated that the attachment consisted of pages 12 and 13 of the 1998 Edition of the Manual. He noted that page 12 indicates that Indiana law requires that the Election Division provide the appropriate forms and notify all candidates at least twenty-one days before each applicable report filing deadline that a report is due. Dr. Anderson stated that his committee did not receive these forms or notice.

In response to a question from the chair concerning the Manual, Mr. King noted that the Commission had conducted hearings earlier in 1998 in several causes concerning the pre-primary reports filed by candidates and regular party committees in which candidates or committee treasurers had testified that the delinquency occurred due to confusion regarding the text in the Manual and legislative changes to the campaign finance filing statute. He stated that the text on page 12 of the Manual did not correctly state the filing requirements in effect on the filing deadline date. Mr. King added that page 1 of the Manual does explicitly state that this publication reflects Indiana law in effect as of January 1, 1998, and that it is important for committees to contact the Election Division to determine if there have been any changes. He remarked that the Election Division had attempted to alert candidates that statutory changes might be made, and to urge them to contact the Election Division.

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There being no further discussion, Mr. Cruea moved, seconded by Mr. Perkins, that the hearing in this matter be closed. The Commission adopted this motion by consent.

Mr. Long moved, seconded by Mr. Perkins, that the Commission: (1) find that this committee had made a good faith effort to comply with the filing requirements set forth in the Manual; (2) find that the assessment of the proposed civil penalty and documented costs would be unjust under these circumstances since the committee's failure to comply was the result of legislative changes to filing statute; and (3) dismiss this cause as a result, with the proposed fine and costs not being assessed against the committee. There being no further discussion, the chair called the question, and declared that with four members voting "aye" (Mr. Cruea, Mr. Long, Mr. Morgan, and Mr. Perkins), and no member voting "nay", the motion was adopted.

The chair recognized Ms. Thompson, who stated that the proposed civil penalty in this matter was Two Hundred Two Dollars and Seventy Seven Cents ($202.77), being Two Hundred Dollars ($200) for a delinquent pre-convention report due on May 18, 1998, and Two Dollars and Seventy Seven Cents ($2.77) in certified mail costs. She added that this committee had not previously been brought before the Commission for a campaign finance enforcement cause.

The chair asked if any individual was present to testify regarding this matter. The chair recognized Mr. Jim Higgins, a principal in the certified public accounting firm of London Witte Group in Indianapolis, who said that he had volunteered to assist the committee's treasurer in the preparation of this report. Mr. Higgins stated that he believed this committee's situation was very similar to that just addressed by Dr. Anderson. He stated that in defense of the Election Division staff, he noted that he did receive a memorandum from the Election Division concerning this filing deadline, which was sent on April 8, 1998, and addressed the pre-primary supplemental filing reports. He stated that this notice contained text in bold print, prominently titled "IMPORTANT NOTICE", which stated that the Election Division had tried to limit this mailing to candidates who will appear on the May 1998 primary ballot, and added that if the candidate's name will not appear on the primary ballot to please disregard this memorandum. Mr. Higgins said that as a result of this notice, he disregarded the content of the memo when he received it. He added that he had also relied on the 1998 Campaign Finance Manual in believing that the report was required to be filed seven days before the convention.

Mr. Higgins stated that he was advised shortly after the revised filing date that the report was delinquent. He said that the committee then immediately sent a copy of the report by facsimile transmission to the Election Division, and apologized for the confusion. He added that the committee had filed its previous reports on time, and that the pre-election report due on the

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following Friday has already been prepared for filing in advance of the deadline.

There being no further discussion, Mr. Cruea moved, seconded by Mr. Perkins, that the hearing in this matter be closed. The Commission adopted this motion by consent.

Mr. Long moved, seconded by Mr. Perkins, that the Commission: (1) find that this committee had made a good faith effort to comply with the filing requirements set forth in the Manual; (2) find that the assessment of the proposed civil penalty and documented costs would be unjust under these circumstances since the committee's failure to comply was the result of legislative changes to filing statute; and (3) dismiss this cause as a result, with the proposed fine and costs not being assessed against the committee. There being no further discussion, the chair called the question, and declared that with four members voting "aye" (Mr. Cruea, Mr. Long, Mr. Morgan, and Mr. Perkins), and no member voting "nay", the motion was adopted.

The chair recognized Ms. Thompson, who stated that the proposed civil penalty in this matter was Fifty Two Dollars and Seventy Seven Cents ($52.77), being Fifty Dollars ($50) for a delinquent pre-convention supplemental report due by noon June 2, 1998, and Two Dollars and Seventy Seven Cents ($2.77) in certified mail costs. She added that this committee had not previously been brought before the Commission for a campaign finance enforcement cause.

The chair asked if any individual was present to testify regarding this matter. There was no response. The chair recognized Mr. King, who stated that Mr. Bishop had contacted him by telephone about two days previously, and had asked Mr. King to convey to the Commission that Mr. Bishop acknowledged that this report was filed after the noon deadline on June 2, and that he accepted responsibility for the late filing.

In response to a question from Mr. Long, Ms. Thompson stated that this report had been received by facsimile transmission. There being no further discussion, Mr. Cruea moved, seconded by Mr. Perkins, that the hearing in this matter be closed. The Commission adopted this motion by consent.

Mr. Perkins moved, seconded by Mr. Cruea, that the Commission assess the proposed civil penalty of Fifty Dollars ($50), plus Two Dollars and Seventy Seven Cents ($2.77) for investigative costs incurred and documented by the Election Division. There being no further discussion, the chair called the question, and declared that with four members voting "aye" (Mr. Cruea, Mr. Long, Mr. Morgan, and Mr. Perkins), and no member voting "nay", the motion was adopted.

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The chair recognized Ms. Craycraft, who provided Commission members with a memorandum dated October 13, 1998 and copies of the following documents concerning this matter: (1) a one page undated complaint filed by Ms. Donna J. Kavanagh; (2) an eleven page copy of the 1998 pre-primary report filed by Citizens for Anthony Underly dated April 15, 1998; (3) a seven page copy of the 1997 annual report filed by Citizens for Anthony Underly dated January 17, 1998; (4) an eight page copy of the 1996 annual report filed by Citizens for Anthony Underly dated January 13, 1997; (5) a fourteen page copy of the 1996 pre-election report filed by Citizens for Anthony Underly dated August 23, 1996; (6) a one page copy of a letter dated July 22, 1998 from Ms. Craycraft and Ms. Thompson to this committee; (7) a five page letter dated July 30,1998 from this committee to the Election Division with enclosed amendments to the committee's 1997 annual and 1998 pre-primary reports; (8) a six page facsimile transmission and letter dated October 7, 1998 to the Co-Directors from Mr. James A. Masters of Nemeth, Feeney & Masters, consisting of the entry of an appearance and a motion for a continuance; (9) a ten page facsimile transmission and letter dated October 13, 1998 to the Co-Directors from Mr. James A. Masters of Nemeth, Feeney & Masters, which withdrew the motion for a continuance filed on October 7; (10) a copy of a six page facsimile transmission to Mr. King from Ms. Donna J. Kavanagh received by the Election Division on October 13, 1998. Copies of these documents are incorporated by reference in these minutes.

Mr. Long noted that Mr. Masters had withdrawn his motion for a continuance based on his understanding that the Commission would not be conducting a factfinding hearing on this matter at today's meeting. After reviewing these documents, the Commission consented to Mr. Masters's request to withdraw the motion for a continuance of this cause. The chair asked if any individual was in attendance on behalf of either Mr. Underly or Ms. Kavanagh. There was no response.

The chair asked if Mr. King or Ms. Robertson had a comment regarding this matter. Mr. King responded that Indiana Code 3-9-3-4 was the state law in contention here. He noted that this statute limits the use of cash received as contributions to certain purposes set forth on page 3 of Ms. Kavanagh's facsimile transmission, namely to defray expenses related to a person's campaign for office, continuing political activity, or service in an elected office, or to transfer funds to other political committees, and for additional purposes when a committee is disbanding. He added that Indiana Code 3-9-3-4 does not specifically address the issue raised in this matter other than by prohibiting the use of money received as a contribution for "primarily personal purposes." Mr. King remarked that this issue had arisen in 1997 and earlier this year concerning allegations that certain political committees had used funds for primarily personal purposes. He noted that the statute does not provide guidance regarding the meaning of "primarily personal purposes." He indicated that this statute clearly permits expenditures involving incidental personal uses, such

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as the case where a candidate's committee leases or purchases a vehicle for use in a campaign, and the candidate stops the vehicle at a dry cleaning to pick up a suit or a dress, this would result in an incidental personal use of the vehicle, but not in a violation of the statute's prohibition against primarily personal use of the vehicle.

Mr. King stated that the particular issue addressed in this case involved the payment by the candidate committee's to the candidate of amounts in reimbursement of lost wages. He noted that similar issues had been addressed in advisory opinions issued by the Federal Election Commission. He remarked that the FEC had been wrestling, to some extent unsuccessfully with this issue. Mr. King indicated that the FEC has advised that the federal law, which resembles Indiana Code 3-9-3-4, does permit a committee to employ relatives of the candidate to perform work for the committee at a reasonable wage, with payment for work actually performed. However, he added that the FEC had deadlocked three votes to three votes on several occasions concerning whether a candidate's committee could pay the candidate a salary, whether or not work is performed on an hourly basis with itemized reporting. He stated that there is no clear guidance from the FEC opinions regarding the issue in this case, and certainly no clear statutory authority or administrative rules in Indiana that state whether reimbursement of lost wages or a committee's payment of a salary to a candidate under a contract would be permitted under Indiana law. Mr. King added that the FEC opinions had indicated that there must be a written contract between the committee and the candidate concerning the payment of wages to relatives or a salary to the candidate. Mr. King concluded by noting that since Indiana Code 3-9-3-4 provides for penalties that are not criminal, but certainly penal in nature since an infraction subjects a person to liability for a judgment, the burden falls on the state to prove that there has been a primarily personal use of campaign funds, and that the burden is not on the candidate or the candidate's committee to prove that a use of funds is not primarily personal.

Mr. Long inquired whether since the penalty for a violation of this statute is an infraction, the Commission would have jurisdiction in this matter. Mr. King responded that in addition to the infraction penalty, which was enacted in 1988, the legislature empowered the Election Commission in 1996 to impose a civil penalty for a violation of IC 3-9-3-4. He indicated that the Commission would therefore be authorized to impose a civil penalty under IC 3-9-4-16 if it found that a violation of the statute had occurred, but that enforcement of the infraction penalty could only be pursued by a prosecuting attorney, and not by the Commission.

Mr. Long said that after reading the material, he believed there might be one factual issue relating to the enforcement position adopted by the Federal Election Commission, namely the "reasonable value of the services rendered." He stated that as he understood some of the presentations today, there were charges made for services to the campaign that would have had to have been performed by volunteers or paid staff. Mr. Long said that he saw no information presented today concerning the rate of compensation, but that this could be a factual matter for the Commission if the Commission adopted the FEC position. Mr. King responded that this question was a key Indiana Election Commission Minutes

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issue in the FEC Advisory Opinions that he had cited earlier, and that the FEC had made it clear that there must be some reasonable correlation between the actual work performed and the value of that work in the marketplace. Mr. King added that with regard to any facts available on that issue in this case, he would have to defer to the Campaign Finance staff for any additional information. Ms. Craycraft stated that she did not have any additional information concerning the rate of compensation in this case.

Mr. Long stated that since a complaint has been filed, he believed that it was the Commission's duty to have an investigation performed and to conduct a hearing to resolve this matter. He said that the Election Division staff needs to investigate the factual issue in this particular case with regard to the rate of compensation paid, and how this rate was determined. Mr. Long noted that the Election Division frequently receives question concerning this statute, and the Election Division staff quite properly gives advice about this requirement. He said that since the General

Assembly has not defined "primarily personal use" in the statute, the Commission may need to determine what this term means for the Commission's enforcement purposes. He indicated that the Commission could adopt an Advisory Opinion, send a copy to the legislature, and if the legislature disagrees with the Commission's approach, the legislature can act to change the law. Mr. Long then moved that this matter be tabled until the next meeting of the Commission, at which time the matter would be set for hearing, with the Election Division staff being directed to present any additional information possible regarding this matter. He added that he hoped the Commission could not only deal with this case, but address this matter prospectively for future consideration. Mr. Cruea seconded the motion.

Mr. Long requested that if an Advisory Opinion defining "primarily personal purposes" was prepared by staff for Commission consideration, that a copy be furnished to the legislative committees dealing with this issue, as well as the majority and minority leaders of both chambers. In response to a question from Mr. Morgan, Mr. King stated that there were no reported cases construing this statute, but that he was aware that the 1988 statute had been enacted partially in response to allegations made earlier concerning former Superintendent of Public Instruction Harold Negley. Mr. Long requested additional information concerning the history of the law, and any other reasonable amount of information which could be compiled by staff regarding statutes from other states. Mr. Long added that although this issue did not involve the use of public funds, he believed it was important to establish a reasonable simple standard for Commission enforcement of this requirement.

In response to a question from Mr. King, the Commission directed staff to assign a cause number to this matter for the next Commission hearing, with the cause to be heard in the same fashion as similar matters presented to the Commission. With the consent of the Commission, Mr. Long amended his motion to provide this matter to be heard at a future meeting of the Commission when staff is ready to proceed with this cause, rather than the next Commission meeting, since the Commission might be required to meet with short notice concerning the general election.

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There being no further discussion, the chair called the question, and declared that with four members voting "aye" (Mr. Cruea, Mr. Long, Mr. Morgan, and Mr. Perkins), and no member voting "nay", the motion was adopted.

Outstanding Civil Penalties and Referrals to the Attorney General; June 26, 1998 enforcement letter to committees.

The chair recognized Ms. Craycraft, who noted that Commission members had received copies of the following documents: (1) an undated two page document entitled "Attorney General's List"; and (2) a memorandum dated June 26, 1998 from the Election Division to Committees

Subject to Campaign Finance Enforcement Orders From the June 9, 1998 Indiana Election Commission Meeting. Copies of these documents are incorporated by reference in these minutes. Ms. Craycraft stated that these committees would be referred to the Attorney General at this time if this was the will of the Commission.

Mr. Cruea moved, seconded by Mr. Perkins, that the committees on the list be turned over to the Office of the Attorney General for collection. There being no further discussion, the chair called the question, and declared that with four members voting "aye" (Mr. Cruea, Mr. Long, Mr. Morgan, and Mr. Perkins), and no member voting "nay", the motion was adopted.

Mr. Long requested that the Attorney General supply the Commission with a report concerning collection matters referred to that office in the past. Ms. Thompson stated that the Attorney General's office had collected some civil penalties referred by the Commission.

Campaign Finance Database Audit Functions:

The chair recognized Ms. Craycraft, who reported that the audit functions were working on the Election Division's campaign finance database, and that staff had been able to print out a couple of audit reports to check committee files. She added that after the next campaign finance report filings, these audit functions will assist investigations by the Election Division staff.

Information on the Internet:

The chair recognized Ms. Craycraft, who said that all campaign finance reports received by the Election Division since January 1, 1998 have been published on the Internet, including the pre-primary, supplemental pre-primary, and pre-convention reports. In response to a question from Mr. Long, Ms. Craycraft stated that the Internet address for these reports was "www.indianacampaignfinance.com". She noted that these reports were also published on the Election Division home page.

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Memo to Counties and Political Parties Concerning Campaign Finance Deadlines:

The chair recognized Ms. Craycraft, who noted that Commission members had received a copy of a ten page memorandum dated July 6, 1998 from Campaign Finance staff to the Circuit Court Clerks and County Election Board members of all counties concerning campaign finance report filing requirements for certain general election candidates. A copy of this memorandum is incorporated by reference in these minutes.

Ms. Craycraft remarked that this memorandum advised the counties concerning the filing campaign finance filing requirements for candidates selected to fill ballot vacancies, minor party candidates, and write-in candidates, and included a copy of the Advisory Opinion adopted by the Commission concerning this matter.

6. VOTER REGISTRATION REPORTS:

The chair recognized Mr. Northern, who provided Commission members with a five page document dated May 14, 1998, from Mr. Northern to Jim Staples of the Bureau of Motor Vehicles, titled "Post Primary NVRA Issues". A copy of this document is incorporated by reference in these minutes.

Mr. Northern stated that when Mr. and Mrs. Blazier, of Martinsville in Morgan County, went to the polls to vote at the May 1998 primary election, Mr. Blazier's name appeared on the poll list, but Mrs. Blazier's name did not. He indicated that both had applied for voter registration at a BMV branch, and had been instructed by BMV staff to retain their voter registration application receipts. Mr. Northern said that as a result, Mrs. Blazier was permitted to vote in the May 1998 primary. He indicated that he had contacted Mr. Staples, who investigated the matter.

Mr. Northern reported that since there is no way to track individual registration applications, the problem appeared to be the result of a clerical error in misplacing the application. Mr. Northern indicated that problems of this type were almost inevitable, but since the BMV employee did instruct the Blaziers to keep their receipts, the system did work pretty well. He stated that the Blazier matter was the only instance of this type arising from the May 1998 primary election. Mr. Northern thanked BMV for their assistance in this regard.

Mr. Northern stated that the Election Division had completed the 1998 Duplicate Voter Registration Elimination Program. Members of the Commission were provided with a document dated August 26, 1998, from the Election Division to All Circuit Court Clerks and Boards of Voter Registration. A copy of this document is incorporated by reference in these minutes.

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Mr. Northern said that the Election Division had received its final deliverable for this program from its vendor, Quest Information Systems, Inc, and that this program had been performed on schedule.

Mr. Northern stated that last month the Election Division hosted a meeting with Quest and many county voter registration officials to discuss ideas for improving this program. He indicated that he planned to present several suggestions and comments from county voter registration officers regarding this program at the next Commission meeting. The chair thanked Mr. Northern for his reports.

7. STATEWIDE VOTER REGISTRATION FILE FEE:

The chair recognized Ms. Christie, who recalled that the Commission had last discussed this matter during the summer of 1997. She noted that the statewide voter registration file tape is compiled by a contractor retained by the Election Division to produce a computer file in a standardized format, based on various formats submitted by county voter registration offices.

Ms. Christie said that before she began serving as Co-Director, the State Election Board staff had charged a fee of $5,000 for supplying copies of this tape, but that she had not been able to discover the documentation for setting this fee. She noted that in 1997, the Election Division staff had prepared an order, which was adopted by the Commission, setting the fee for this file at $5,000. Ms. Christie stated that some confusion existed regarding the question of pro rating this fee. She noted that some of Indiana's 92 counties do not submit their data to the Election Division. She added that although this submission is required by state law, there is no penalty for a county which fails or refuses to comply, other than a provision permitting the Election Division to compile the information itself and charge the county its costs for doing so, which in many cases is impractical. Ms. Christie noted that when the Election Division attempts to update the statewide voter file to reflect information obtained from the Duplicate Voter Registration Elimination Program postcards, some counties supply an updated data file, while other counties do not.

Ms. Christie indicated that as a result of these problems, frequently the Election Division's statewide voter registration file does not contain data from all ninety-two counties. She noted that some purchasers of this incomplete file had asked to pay a pro rata fee based on the $5,000, or to obtain a copy of the voter file submission compiled in a previous or in a following year. She indicated that the Election Division staff believed the latter approach would be too complicated since it would require tracking what submissions an individual had received in previous years. Ms. Christie indicated that the staff sought guidance from the Commission concerning whether a pro rata fee should be charged in these cases, and if so, how that fee should be computed.

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Ms. Christie reported that all ninety-two counties had submitted data in February 1998, which permitted the compilation of a file that was accurate as of January 31, 1998. She indicated that after the Duplicate Voter Registration Elimination Program and the National Change of Address Program (NCOA) had been completed, the counties were given an opportunity to correct and update their voter registration records, but that some counties did not do so. She added that only about sixty counties had supplied the Election Division with an updated voter registration computer file in September 1998 reflecting these changes. Ms. Christie stated that the point was raised whether it was fair to charge entities wishing to purchase the statewide voter registration file the full $5,000 fee to obtain a partially updated list from only part of the counties.

Ms. Christie stated that the Election Division staff's recommendation to the Commission was that an application to purchase the statewide voter registration file not be carried over from year to year. She noted that under this recommendation, a purchaser who paid $5,000 for the file at the beginning of a year would be entitled to obtain copies of "cleaned up" tapes during that year, but would not carry over to the next year, which would constitute a new filing period. She added that the current voter file request form specifies that this voter registration information may not be used for commercial purposes.

Mr. Long stated that he did not understand how the Election Division could charge a pro rata fee on the updated tapes. He noted that the rate could be based on number of counties included in the file or percentage of registered voters included in the file. He added that this might require rebates in some cases. Mr. Morgan suggested letting purchasers know that the $5,000 fee will not be increased until there is a better method of updating the statewide file.

Ms. Christie stated that there is no way to rebate funds already paid to the Election Division. She said that she thought the confusion had arisen because the Election Division's bipartisan staff may not have started out on the same page when advising the state party committees about this matter, and that their expectation regarding the fee for this file may have been different. Ms. Christie stated that the Election Division had agreed internally that an entity making the $5,000 payment in 1998 is entitled to the February submission, plus any updates. She added that the Election Division hoped to clarify that there is no guarantee that the file will contain updated information from all ninety-two counties until the General Assembly establishes penalties for counties which fail to comply with the current voter file law. She remarked that the February 1998 submission was the first that contained information from all ninety-two counties. In response to a question from Mr. Long, Ms. Christie stated that all Indiana counties now have computerized voter registration information, but there is great disparity between the counties.

The chair suggested that the Election Division suggest legislation to provide for penalties for counties which fail to comply with current law. Ms. Christie stated that the current process requires a great deal of follow-up communication by Election Division staff with the counties to ensure that submissions are made. Mr. Long suggested that a financial incentive could be

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provided to counties to upgrade their current voter registration systems to permit the counties to come on line with the Election Division and transmit this information automatically. In response to a question from the chair, Ms. Christie stated that she believed that both political party state committees have paid the $5,000 fee this year.

Mr. Long said that it seemed to him that $5,000 was a reasonable price to pay for this statewide voter file list containing the names of 3,500,000 registered voters. Ms. Christie noted that the current statute provides that the Election Division may charge up to $200 per county (meaning approximately $18,000), and that the $5,000 fee was already a significant discount. She added that it has been confusing to try to establish an acceptable pro rata fee. Mr. Long stated that the Election Commission might want to raise this fee when the list is perfected.

The chair recognized Mr. Northern, who stated that the failure of some of the larger counties to submit corrected voter registration lists had been a problem in this area since a substantial group of voters were not included in the file. Mr. Long responded that these counties had the worst excuse for not performing this work since he imagined that larger counties had the most sophisticated voter registration computer data systems.

In response to a question from the chair, Ms. Christie stated that an entity wishing to purchase this file must sign and file an Election Commission prescribed form, the IEC-3. Mr. King noted that the current version of the IEC-3 form contains language alerting the potential purchaser that the statewide voter registration file information may not complete.

Mr. Long stated that although a strict interpretation of the statute would permit the Election Division to charge a purchaser to obtain any revision to a voter registration file within the same calendar year, he believed it was fair to provide revised files to purchasers who had already paid the fee for an earlier version of the same file prepared during the same calendar year. The chair, Mr. Morgan, and Mr. Perkins concurred with Mr. Long's opinion in this matter.

The chair recognized Ms. Christie, who reported that Ms. Tippett apologized for her absence from this meeting due to another appointment this morning which Ms. Tippett could not change.

Ms. Christie stated that the Election Division staff was extremely busy preparing for the November 1998 general election, and answering many telephone inquiries. She added that staff was working on some legislative issues, and had presented the legislative concerns raised by the Commission to the Census Data Advisory Committee. She noted that these included the cleanups to the campaign finance filing requirements discussed at earlier Commission meetings, and noted

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that the staff would provide copies of these proposed drafts to any Commission member who wished to review them. Copies of Preliminary Drafts 3450, 3451, 3452, 3453, 3454, and 3455 are incorporated by reference in these minutes. Mr. Long requested that he be mailed copies of these drafts.

Ms. Christie announced that Ms. Craycraft would be leaving the Election Division staff on Friday, October 16 to take another position in state government. She remarked that the staff was sorry to lose Annette, but has enjoyed working with her and appreciated her expertise.

Ms. Christie noted that the December 9, 1998 Election Administrators' Conference will be conducted the Hyatt Regency in downtown Indianapolis, and that participants will be arriving the night of December 8. She said that the Election Division would be happy to make room arrangements for any Commission member who wished to attend the Conference. Ms. Christie welcomed any Commission member who wished to participate in this one day meeting, which will focus on the 1999 city and town elections. She added that this meeting would be presented in cooperation with the Indiana Association of Cities and Towns. The chair thanked Ms. Christie for her report.

The chair recognized Ms. Robertson, who stated that there was no news concerning either the BAPAC case or the Anderson case since the last Commission meeting, and that staff would advise the Commission of any developments in these cases. The chair thanked Ms. Robertson for her report.

The chair recognized Ms. Mackey, a deputy attorney general with the Office of the Attorney General, who stated that she had been assigned to the Election Commission. Commission members welcomed Ms. Mackey. The chair added that it had been nice to go without being sued for several months.

The chair recognized Mr. King, who noted that Commission members had received a copy of proposed Order 1998-105. A copy of this Order is incorporated by reference in these minutes. Mr. King stated that this Order contains all of the forms staff is required to prepare for distribution at the December conference.

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Mr. King remarked that for the first time, the Election Division is a little bit ahead of the curve with regard to the updating of forms, with all of the form revisions necessary for the municipal elections next year having been made. He added that since the legislature required that campaign finance report filing deadlines be included on each candidate filing forms, a new set of candidate forms has been developed for the 1999 municipal elections. Mr. King noted that the forms for the 2000 general election have also been updated since staff began receiving requests for forms for the 2000 presidential election the morning after the 1996 election. He stated that the Order included the revised IEC-3 statewide voter file request form alluded to earlier, and the election return forms CEB-23, 24, and 25, which are filed by counties with the Election Division during the week after an election to assist with the data entry for election returns.

In response to a question from the chair concerning the CAN-29 form, Mr. King said that the reference to the selection of a candidate to fill a ballot vacancy by the "officers of the county committee" referred to all four county central committee officers, namely the chairman, vice-chairman, secretary, and treasurer. Mr. King added that this language on the CAN-29 form reflected the requirements of current statutes. The chair suggested that this language could be revised to refer to a majority of the four officers of the committee. Mr. King responded that he would be happy to prepare this revision for Commission consideration. Mr. Long noted that most county political party central committees have passed resolutions to authorize a majority of the county committee officers to appoint candidates to fill ballot vacancies. The chair agreed that this was true in Fountain County. Mr. Long thanked the Election Division staff for furnishing him with a set of these forms, which had proven very useful when the county committee had to fill a vacancy in a local office.

Mr. Cruea moved, seconded by Mr. Long, that Order 1998-105 be approved as presented. There being no further discussion, the chair called the question, and declared that with four members voting "aye" (Mr. Cruea, Mr. Long, Mr. Morgan, and Mr. Perkins), and no member voting "nay", the motion was adopted.

The chair recognized Ms. Christie, who introduced Ms. Wendy Davis of the Marion County Election Board. Ms. Christie noted that Order 1998-105 included a revision to the ABS-1 absentee ballot application for use in Marion County only. She indicated that Marion County had requested a small addition to this application form to specify the absentee ballot deadlines applicable in Marion County, which differ from the deadlines in the other ninety-one counties. Ms. Christie noted that this was important information since a voter who misses the application deadline cannot vote by absentee ballot. She added that the Election Division staff had contacted Commission members before giving Marion County tentative approval to use this application when absentee ballot voting began earlier this month, subject to the approval of this form by the Commission at this meeting.

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The chair recognized Ms. Davis, who thanked the Commission for approving this requested form. She stated that the Marion County Election Board had received several telephone inquiries before the 1996 presidential election and the May 1998 primary concerning the deadline for absentee ballot applications. She added that unfortunately the Board had received several applications after the deadline, which were denied as required by law, and that it was difficult for the Board to notify the voter shortly before the election that the application had been denied due to the late filing.

Ms. Davis remarked that the Election Board believed it would be a courtesy to the voters to include this deadline on the absentee ballot application, and that the Board had received favorable feedback from several appreciative voters and both of the major political parties regarding this form revision.

The chair thanked Ms. Davis, and requested that "Marion County" be printed on these applications to prevent confusion regarding the deadline if this form happened to be distributed in another county. Mr. Morgan thought that this was a good idea, and suggested that other counties who wished to make a similar revision to the absentee ballot application be encouraged to bring this proposal forward at another meeting. Commission members concurred with this suggestion.

The chair recognized Ms. Davis, who stated that Marion County had also requested Commission approval for an ABS-6 absentee ballot affidavit envelope form for use in Marion County only. She indicated that Marion County uses ballot labels for each voter, which includes voter registration information, such as the voter's ward and precinct and residence address. Ms. Davis noted that the label also includes a bar code to permit processing returned absentee ballots by using a bar code wand, which automatically updates the Board's computerized records. She stated that this ABS-6 envelope form revision had been very useful for the Board.

Ms. Davis also noted that the Marion County Election Board had instituted a new feature on its web site to permit a voter to obtain a street map and address listing for the voter's precinct polling place by typing in the voter's address on the web site. She remarked that this program also includes candidate and ballot question information stating the names that will appear on the ballot in each precinct, along with listing the legislative districts that the voter resides in. Ms. Davis said that this information has proven very helpful both to voters and to organizations seeking to determine which legislative districts their Marion County members reside in.

Ms. Davis stated that this web site feature eliminates the need for Election Board staff to research paper records to provide this information to voters and other members of the public. She remarked that the Election Board is very excited about this development, and several favorable comments have been submitted to this web site commending the Board for implementing this program.

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Ms. Davis encouraged Commission members to view the Polling Place Locator program at the Marion County Circuit Court Clerk's web address: www.indygov.org/mclk

She noted that the site is still under some construction, but is working well. Ms. Davis remarked that the Marion County Election Board is very proud of this new program. She said that the Election Division staff has also expressed its appreciation for this web site, and indicated that the Locator will prove very useful in answering telephone inquiries from Marion County voters on election day.

The chair recognized Ms. Christie, who invited Commission members to visit the Election Division office following the meeting, where Ms. Davis would conduct a demonstration of this program. In response to a question from Mr. Morgan, Ms. Davis indicated that this program was the first of its type in Indiana. Commission members congratulated the Marion County Election Board for this remarkable innovation.

The chair recognized Mr. King, who stated that the Election Division had provided Commission members with a copy of a memorandum dated September 15, 1998 from Ms. Robertson and himself to the Circuit Court Clerks and Lake County Combined Board Chief Deputy concerning Recount Commission Guidelines. A copy of this memorandum is incorporated by reference in these minutes.

Mr. King noted that this memorandum included a copy of the revised State Recount Commission Guidelines that he and Ms. Robertson had developed when assisting the State Recount Commission earlier this year. He noted that the revised Guidelines reflected changes in state election law during the last twelve years, and that staff had thought it would be useful to provide these Guidelines to all counties. Mr. King remarked that local recounts are conducted by a local commission appointed by a trial court judge, and that commission members often ask the circuit court clerks for assistance in developing recount procedures. Commission members thanked staff for providing this document to county officials.

The chair recognized Mr. King, who stated that the Election Division staff continued to make progress with Access Indiana in publishing 1998 general election candidate information on the Internet. He added that this information concerning general election candidates would be available for the first time on the Internet. Mr. King noted that the following documents were available to Commission members and the public: (1) Certification of Candidates Who Have Filed a

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Declaration of Intent to be a Write-In Candidate for Federal Office at the November 3, 1998 Indiana General Election, certified by the Co-Directors on September 15, 1998; (2) Amendment #1 to the Certification of Candidates for Election or Retention, Ballot Devices Submitted for Printing on the Ballot, and Constitutional Amendments Submitted for Ratification at the November 3, 1998 Indiana General Election, certified by the Co-Directors on September 2, 1998; (3) Certification of Candidates for Election or Retention, Ballot Devices Submitted for Printing on the Ballot, and Constitutional Amendments Submitted for Ratification at the November 3, 1998 Indiana General Election, certified by the Co-Directors on August 19, 1998; (4) the Canvass of the Votes Cast for Candidates for the Nomination of the Indiana Democratic Party or the Indiana Republican Party to Federal Office, State Legislative Office, Judicial Office, and Prosecuting Attorney at the May 5, 1998 Indiana Primary Election, certified by the Co-Directors on July 17, 1998, along with revised information dated September 15, 1998, reflecting the contests, recounts, and Election Commission candidate eligibility determinations concluded before that date; and (5) the Certification of Candidates Nominated by the Voters of the Indiana Democratic Party and the Indiana Republican Party at the May 5, 1998 Indiana Primary Election, signed by Secretary of State Gilroy on July 17, 1998. Copies of these documents are incorporated by reference in these minutes.

The chair recognized Mr. King, who stated that Commission members had received a Motion to Withdraw Exhibit in this matter filed by Mr. Brent Welke on September 15, 1998. A copy of this Motion is incorporated by reference in these minutes.

Mr. King noted that at a previous Commission meeting the Election Division staff had reported that Mr. Welke had submitted a letter to staff requesting that this videotape be returned to him. Mr. King indicated that the Election Division staff had responded that since the videotape had been presented into the public record in the Burgher proceeding, the videotape could not be returned to Mr. Welke, but that the staff would work with Mr. Welke to arrange to copy this video for his use. Mr. King noted that Mr. Welke had instead submitted the Motion to Withdraw.

The chair recognized Mr. Long, who suggested that staff contact the Indiana Commission on Public Records to determine how long exhibits of this type should be retained. He indicated that this could be a growing problem due to the number of hearings conducted by the Election Commission. He added that the Supreme Court Clerk microfilms records and notifies parties that exhibits will be disposed of unless the party wishes to obtain the exhibit for use in appellate

proceedings. Mr. Long stated that there should be some uniform procedure for disposing of these

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items. The chair requested that staff contact the Indiana Commission on Public Records concerning this matter.

Mr. Long moved, seconded by Mr. Cruea, that the Motion to Withdraw be denied. There being no further discussion, the chair called the question, and declared that with four members voting "aye" (Mr. Cruea, Mr. Long, Mr. Morgan, and Mr. Perkins), and no member voting "nay", the motion was adopted.

The chair recognized Ms. Christie, who stated that the Co-Directors had discussed the possibility of establishing a schedule of regular meeting dates for the Commission in 1999. She noted that the Commission could always cancel a regular meeting due to insufficient business. Ms. Christie indicated that there will be less business for the Commission to conduct in 1999 than in 2000, and that a date every other month in 1999 might be sufficient.

Mr. Long stated that setting regular Commission meeting dates would be a tremendous asset for him in setting his schedule. Mr. Long suggested that the Election Division staff submit a proposal for standing meeting dates to the next Commission meeting, which would be Commission meeting dates unless cancelled. The chair agreed with Mr. Long's suggestion. In response to a question from Ms. Christie concerning whether particular days of the week would be preferable to Commission members, Mr. Perkins suggested that the proposed meeting schedule be very easy to follow.

The chair recognized Mr. Long, who stated that he had read the minutes of the last Commission meeting, including Mr. Perkins's comments. He said that he was not privy to what was said which caused the feelings which it generated, but would like to say for the record that he was proud to serve on the Election Commission and that it is a real pleasure for him to serve on the Commission with Mr. Perkins. Mr. Long remarked that Mr. Perkins represented the people of the State of Indiana admirably. Mr. Perkins thanked Mr. Long for his remarks.

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16. ADJOURNMENT:

There being no further business to come before the Commission, Mr. Perkins moved, seconded by Mr. Morgan, that the Commission do now adjourn. There being no further discussion, the chair called the question, and declared that with four members voting "aye" (Mr. Cruea, Mr. Long, Mr. Morgan, and Mr. Perkins), and no member voting "nay", the motion was adopted. The Commission then adjourned at 12:12 p.m.

Respectfully submitted,

APPROVED,

_________________________

Dudley R. Cruea, Chair