May 2000 Meeting Minutes

Indiana Election Commission

Minutes

MAY 25, 2000

MEMBERS PRESENT: Dudley Cruea, Chairman of the Indiana Election Commission {"IEC"), S. Anthony Long, Butch Morgan, and Joseph M. Perkins, Jr.

MEMBERS ABSENT: None.

STAFF ATTENDING: Spencer Valentine, Co-Director, Election Division, Office of the Indiana Secretary of State ("Election Division"), Candy Marendt, Co-Director, Election Division, Dale Simmons, Co-General Counsel IEC and Election Division, Kristi Robertson, Co-General Counsel IEC and Election Division; Pam Potesta, Co-Director, Campaign Finance, Election Division; and Michelle Thompson, Co-Director, Campaign Finance, Election Division.

ALSO ATTENDING: Tom Dinwiddie, attorney for the Indiana Mortgage Bankers Political Action Committee, Mark Rutherford, Chairman of the Libertarian Party of Indiana, Randal George, representative of the Constitution Party of Indiana, Donna Kavanagh, representative of the Democratic Committee to elect Donna Kavanagh, Brian K. Sims, representative of Committee to Elect Brian K. Sims, and Pat Whalen and Jack Black, representatives of Election Systems and Software, Inc.

1. CALL TO ORDER

The chair called the May 25, 2000 meeting of the IEC to order in Room 233, Indiana State House, 200 West Washington Street, Indianapolis, Indiana. He noted that proper notice of the meeting had been given, as required by state law, and that all Commission members were present except member Butch Morgan. Mr. Valentine indicated that Mr. Morgan was on his way to the meeting. The chair then indicated that the Commission members present would proceed with business on the agenda which could be performed in Mr. Morgan's absence.

Copies of the meeting notice and agenda are 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.)

2. APPROVAL OF THE MARCH 3, 2000 MINUTES

The chair noted that each Commission member had previously received a draft of the proposed Commission minutes for the March 23, 2000 meeting. There being no corrections, Mr. Perkins moved that the March 23, 2000 minutes be approved as submitted. Mr. Long 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), and no member voting "nay", the motion was adopted.

3. REPORT BY CO-DIRECTORS

The chair recognized Ms. Marendt who addressed the Commission on the continuing operations of the Election Division. Ms. Marendt stated that the Election Division certified the election of the state convention delegates to the Republican and Democratic state party organizations pursuant to Indiana statute. She stated that all of Indiana's ninety-two counties submitted the results of the primary election to the Election Division and that the Election Division is in the process of compiling those results. She explained that during the primary election the Election Division maintained a web site that updated election results as they were received from the circuit court clerks through the evening of the primary election and that the web site was being monitored by many people, including those in the media and a United States Senator. She stated that the Election Division's web site maintained the most current information available on election night. She explained that the Election Division sent a note to all the circuit court clerks thanking them for their cooperation in submitting timely reports to the Election Division. Mr. Long stated that he was in one of the Congressional campaign offices during the primary election and that they were monitoring the web site throughout the evening and that they were pleased with the way the web site worked. Ms. Marendt stated the Election Division would continue to put effort into improving the web site. She also stated that the Election Division was making an effort to make more election forms available on the web site. She encouraged the Commission members to review the web site if they had the opportunity. The chair also stated that he had reviewed the web site on election night and was impressed.

4. LITIGATION UPDATE

The chair recognized Mr. Simmons who indicated that the Commission is currently a defendant in two active cases. He stated that between the last meeting and today's meeting there has been no activity on the cases. He reported that there are still Motions for Summary Judgment pending in the Lee versus Able and the Majors versus Indiana Election Commission cases. He stated that the motions in both cases have been fully briefed and the parties are now simply waiting for a decision from the court.

At this point in the meeting, the chair asked the record to reflect that the Commission's fourth member, Butch Morgan, had arrived.

The chair then requested that Mr. Valentine make his report on the progress of his clean up activities in area five in the offices of the Election Division. Mr. Valentine indicated that he would be cleaning up area five during the upcoming week.

Mr. Valentine indicated that the Election Division is still in the process of completing the entry of primary election results into its data base. Mr. Valentine indicated that he will be addressing the Commission on a voting systems issue on the agenda for today. He also indicated that in the last few weeks there have been some campaign finance filing deadlines come and go for pre-convention candidates. He stated that it was his belief that candidates in this group had filed timely campaign finance reports. He indicated that post-convention campaign finance filing deadlines were coming up. He then stated that after the post-convention deadlines, the next deadline that candidates will encounter will be the pre-election campaign finance deadline. Finally, he reported that he and Ms. Marendt were engaged in budget activities to wrap up the end of the fiscal year for the Election Division.

5. CAMPAIGN FINANCE ENFORCEMENT

The chair then announced that the Commission would consider campaign finance enforcement issues and requested that all those present to testify in cases before the Commission stand for the administration of the oath. Ms. Robertson administered the oath to those present to testify.

A. COMMITTEE TO ELECT BRIAN K. SIMS, CASE NO. 00-4491-119

The chair recognized Ms. Potesta who stated that this was case number 00-4491-119. She stated that the Committee to Elect Brian K. Sims filed its report on April 17, 2000 and received notice on May 16, 2000. She stated that this is the first time that the committee has been before the Commission and that the committee has a proposed civil penalty of One Hundred Fifty Two Dollars and Ninety Eight Cents ($152.98).

The chair recognized Mr. Sims who stated that he received a letter that said that this hearing was being called to determine if he should be assessed a civil penalty. He stated that he deserved to be penalized. His stated that his report was late and it was his responsibility. He stated that he was a first time candidate. He stated that he got the campaign finance deadline confused with the income tax filing deadline. He explained that since the tax deadline was on Saturday April 15 he thought that the filing deadline for his campaign finance report would carry over to April 17 and that is why he filed his report on that date. He requested that the Commission consider reducing the proposed fine.

The chair then closed the hearing. Mr. Long moved that the proposed fine be reduced to Thirty Seven Dollars and Fifty Cents ($37.50) plus the investigative costs in the sum of Two Dollars and Ninety Eight Cents ($2.98) for a total of Forty Dollars and Forty Eight Cents ($40.48). Mr. Morgan seconded the motion. There being no further discussion, the chair called the question, and declared that with four members voting "aye" (Mr. Cruea, Mr. Long, Mr. Perkins.and Mr. Morgan), and no member voting "nay", the motion was adopted.

Mr. Sims asked whether he, as a first time candidate, could ask the Commission a question. The chair recognized Mr. Sims who stated that the rules are confusing when you are not used to them. He wanted to know who determines that the weekends count toward the fines. The chair and Mr. Long responded that the filing deadlines were established by Indiana statute.

B. CITIZENS FOR JOHN CARSON COMMITTEE, CASE NO. 00-4513-123

The chair recognized Ms. Potesta who stated that this was case number 00-4513-123. She stated that the Citizens for John Carson Committee filed its report on April 17, 2000 and received its notice on May 12, 2000. She stated that this is the first time that the committee has been before the Commission and that the committee has a proposed civil penalty of One Hundred Fifty Two Dollars and Ninety Eight Cents ($152.98).

The chair recognized Sarah Carson who stated that she was appearing before the Commission on behalf her husband John Carson. Ms. Carson stated that she is the treasurer of the committee and that the letter sent by the Commission was addressed to her. She stated that she received a letter stating that the committee's campaign finance report was late. She stated that she has a receipt from the post office in Terre Haute showing that she mailed the report on April 11, 2000 and that the envelope is post-marked that date. She stated that she didn't make a copy of the post-mark because the post-mark didn't come out on the copy. She stated that when she deposited the report in the mail she asked the post office how long it would take to deliver the report to Indianapolis and they stated it would be one or two days for certified mail. She stated that she was aware that the report was due on April 14 at noon but that this was three business days from the date she deposited the report in the mail. She explained that according to the return receipt card it was received in the office of the Commission on April 17.

Mr. Long indicated that, according to the documents tendered to the Commission, the report was signed April 10 and the mailing shows that it was post-marked as of April 11. Mr. Long then asked for a clarification of the law on the issue of filing. Ms. Robertson stated that the statute that determines when something is filed with the Commission was changed a couple of years ago. She stated that it is no longer determined by the post-mark of the item being filed. She explained that, under current statute, a report must actually be in the Commission's office to be considered filed. Mr. Long stated that he would like to go on record as saying that the filing date should be determined by reference to the post-mark date but he understood that the legislature has provided otherwise. The chair and Mr. Perkins concurred. Mr. Long explained to Ms. Carson that, though the Commissioners believe that reports should be considered filed upon deposit with the mail, the law provides otherwise. Ms. Carson responded by saying that the only other matter she wished the Commission to consider is that this is the first time that she has prepared the reports and that the committee had financial activity until April 7 and that it took her a couple of days to prepare the report and that she got the report in the mail as soon as she could. She stated that the committee faxed its report to the local county election board and that the county election board provided them with a policy stating that they could file by fax. The letter she received from the election division stated that she could file a campaign finance report electronically, however, her committee did not have that capability. In addition, she stated that she did not have the fax number or any information about the policy of the Commission in accepting fax filing.

Mr. Valentine explained that one of the reasons the legislature adopted the filing upon receipt rule is to emphasize the importance of getting the information to the media and to the pubic in a timely fashion.

The chair then closed the hearing. Mr. Long moved that the proposed fine be reduced to Thirty Seven Dollars and Fifty Cents ($37.50) plus the investigative costs in the sum of Two Dollars and Ninety Eight Cents ($2.98) for a total of Forty Dollars and Forty Eight Cents ($40.48). Mr. Morgan seconded the motion. There being no further discussion, the chair called the question, and declared that with four members voting "aye" (Mr. Cruea, Mr. Long, Mr. Perkins.and Mr. Morgan), and no member voting "nay", the motion was adopted.

C. DEMOCRATIC COMMITTEE TO ELECT DONNA KAVANAGH, CASE NO. 00-4325-78

The chair then recognized Ms. Thompson who stated that the Democratic Committee to Elect Donna Kavanagh was case number 00-4325-78. She explained that this case was before the Commission on a Motion to Reconsider filed by Ms. Kavanagh. She explained that the fine imposed by the Commission, in the amount of Two Hundred and Fifty Two Dollars and Seventy Three Cents ($252.73), related to a late 1999 annual report. Ms. Thompson directed the Commission's attention to correspondence and the committees Motion to Reconsider contained in the packet of information provided to the Commission. She stated the first letter is a letter she received from Ms. Kavanagh explaining the money left over in the committee's account. It mentions some of the things that she explained to Ms. Kavanagh to close her committee. She explained that the next document in the packet is the report that Ms. Kavanagh filed in February 2000 which is a final report. She stated that next in the packet is a letter that she received on February 22, 2000 from Ms. Kavanagh that Ms. Kavanagh claims was sent to her in January 1999. Ms. Thompson further explained that in January, 1999, the committee did file an annual report and did not close the committee until February, 2000.

Ms. Kavanagh opened her remarks by thanking the Commission for an opportunity to present her side of the case. She stated that some of the things Ms. Thompson said were not accurate. She stated that she sent her first letter in December of 1998, not in January of 1999. She explained that this letter was intended to close her committee.

Ms. Kavanagh stated that this was the first time that she had run for office. She stated that she ran for state representative in district twenty in the 1998 primary. She stated that she had never run for office before this and had no one to help her. She stated she had some advise from the Election Division. She stated that she appointed her father as treasurer of her committee. She stated that her father was 82 years old and still works full time for a publishing company. She stated that half way through her campaign, her father became ill, before May, 1998. She stated that there was a huge snow storm in March, 1998 and there was a lot of confusion because a lot of papers were coming at her which she had never filed before. She stated that she was on the phone often with the Election Division and appreciated the help that they gave to her.

She stated that her father resigned as treasurer and she sought another treasurer for her committee. This treasurer she selected was a certified accountant with a big firm in Indianapolis and he filed one of the papers incorrectly. She stated that she was unsuccessful in the 1998 primary though she did very well. She said that someone suggested to her that she run again. She stated that she thought about running again but finally decided not to run. She stated that one of the reasons she decided not to run was because her father was diagnosed with Parkinson's disease and she was heavily involved in his medical care. She stated that, at this point, she went to the county commissioners in her county to seek advise about her campaign committee. She stated that they suggested that she close her committee. She said that then in December she suffered some illness and attempted to fax her report and had her father put the report in the mail instead of sending it certified. She stated that this occurred around December 22. She stated that she was surprised a year later when she received a letter in February, 2000 explaining that she was delinquent in filing her annual report.

She further explained that even though the Election Division claims that they did not receive her December 1998 letter, that throughout the course of her campaign she received several certified letters from the election division that were not supposed to be sent to her. She stated that she called the Election Division several times and talked to an attorney named Mr. King who advised her that the mailing to her was a mistake. She stated that there has been confusion over the last two years. She stated that she thought she was closing her committee when she mailed the letter to the Election Division in December, 1998. She stated that she had attempted to follow the rules. She stated that she felt that the penalty imposed upon her was steep; especially in light of the fact that she financed her campaign on her own. She said that she felt that she did what she was supposed to do, she asked for help, and that she was quite surprised when she was notified about the penalty that was imposed.

The chair recognized Mr. Valentine who stated that he wished to address the issue of the mailings that Ms. Kavanagh claimed were not meant for her. Mr. Valentine stated that he believed that she was being copied on correspondence as the complaining party in the Underly case. Ms. Kavanagh acknowledged that this was correct but part of the confusion was that she received the mailings by certified mail and the mailings erroneously advised her to come to the hearing with an attorney to make a presentation.

The chair asked staff to clarify whether the fine related to the 1999 report which was due January 19, 2000. Ms. Thompson stated that this was correct. Ms. Thompson stated that the Election Division received the report January 22, 2000.

Mr. Long asked Ms. Kavanagh why she filed an annual report in January 1999, which was not marked as a final report, after she claims she closed her committee with her December 22, 1998 letter. Ms. Kavanagh responded by stating that she thought by sending the letter and the report she was doing what she was supposed to do.

The chair then closed the hearing. Mr. Long moved that the 75% reduction of the original fine previously ordered by the Commission be affirmed and that Ms.Kavanagh's Motion to Reconsider be denied. Mr. Morgan seconded the motion. There being no further discussion, the chair called the question, and declared that with four members voting "aye" (Mr. Cruea, Mr. Long, Mr. Perkins and Mr. Morgan), and no member voting "nay", the motion was adopted.

D. CONSTITUTION PARTY OF INDIANA STATE COMMITTEE, CASE NO. 00-4416-117

The chair then recognized Ms. Potesta who stated that the next case involves the Constitution Party of Indiana State Committee, case number 00-4416-117. She stated that the committee filed its campaign finance report on April 25, 2000; that notice was sent to the committee on May 15, 2000; that this is the first appearance of the committee before the Commission; and that the proposed fine in this case is Five Hundred and Fifty Two Dollars and Ninety Eight Cents ($552.98).

The chair recognized Randy George who stated that he was the chairman of the committee. He stated that he received a letter which stated that a candidate who was not running in the primary did not have to file a report and believed that this applied to their committee. However, when they found out that the report was late they finished it and faxed it to the Election Division the same day. He stated that the mistake was simply due to a reading comprehension error.

The chair then closed the hearing. Mr. Long moved that the proposed fine be reduced to 25% of the proposed fine, or the sum of One Hundred Thirty Seven Dollars and Fifty Cents ($137.50) plus the investigative costs in the sum of Two Dollars and Ninety Eight Cents ($2.98) for a total of One Hundred Forty Dollars and Forty Eight Cents ($140.48). Mr. Perkins seconded the motion. 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.

E. INDIANA MORTGAGE BANKERS POLITICAL ACTION COMMITTEE, CASE NO. 00-866-101

The chair then recognized Ms. Potesta who stated that the next case involves the Indiana Mortgage Bankers Political Action Committee, case number 00-866-101. She stated that the committee filed its campaign finance report on April 18, 2000; that notice was sent to the committee on May 15, 2000; that this is the second appearance of the committee before the Commission; and that the proposed fine in this case is Two Hundred and Two Dollars and Ninety Eight Cents ($202.98). Ms. Potesta also pointed out that there was a letter from the committee contained in the Commissions' packet of information.

The chair recognized Tom Dinwiddie, attorney for the committee. Mr. Dinwiddie stated that he had an affidavit indicating that the report was mailed on April 10, 2000 at 11:30 a.m. in the post office in Brownsburg, Indiana. He acknowledged the prior discussion of the relevance of the post-mark to the determination of when something is filed. He argued, however, that Indiana statute did not eliminate mailing as a method of filing. He argued that the statute does not define filing as the date a report is received and the statute could easily have stated that. He referred to a memorandum he filed with the Commission setting forth case law that supports the proposition that filing is complete when the report is deposited in the mail.

The chair recognized Ms. Robertson who stated that while it is true that mailing is provided as a valid method of filing a campaign finance report, the statute still clearly provides that it is not considered filed until it is received by the Election Division. She explained that there is a specific code provision, IC 3-5-2-24.5, that says that filing occurs when a document is received by the individual responsible for receiving the document and recorded with the date and time.

The chair indicated to Mr. Dinwiddie that while the affidavit indicates that the report was deposited in the mail on April 10, the post-mark on the envelope is dated April 14, and it was marked received by the Election Division on April 18. Mr. Dinwiddie then indicated that they got a call on April 24 from the Election Division indicating that the Election Division had not received the report and so his committee faxed a copy of the report that day. Ms. Potesta stated that the Election Division records, as reflected on the spreadsheet before the Commission, indicates that the Election Division received the mailed report on April 18.

Mr. Dinwiddie then argued that by interpreting the filing requirement to require that the report be received before it is considered filed eliminates the relevance of the statutorily permissible method of filing by mail. He argued that if the statute requires that the report be in the office by the deadline then it could simply say so. Ms. Robertson responded by saying that the statute does, in fact, say so. Mr. Dinwiddie responded by saying that this definition is in the regulations, not the statute.

The chair then closed the hearing. Mr. Cruea moved that, in light of the fact that this was the committee's second time before the Commission, the proposed fine be reduced to One Hundred Dollars ($100.00) plus the investigative costs in the sum of Two Dollars and Ninety Eight Cents ($2.98) for a total of One Hundred Two Dollars and Ninety Eight Cents ($102.98). Mr. Perkins seconded the motion. 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.

F. INDIANA STATE AFL-CIO COMMITTEE ON POLITICAL EDUCATION, CASE NO. 00-2078-108

The chair then recognized Ms. Potesta who stated that the next case involves the Indiana State AFL-CIO Committee on Political Education, Case No. 00-2078-108. She stated that the committee filed its campaign finance report on April 17, 2000; that this is the committee's third appearance before the Commission; and that the proposed fine in this case is One Hundred Fifty Two Dollars and Ninety Eight Cents ($152.98).

The chair recognized Steve Henderson who stated that he was the co-director of the committee and that his punishment was to appear before the Commission today in that he had tickets to attend activities at the Indianapolis Motor Speedway today. He stated that the committee had no excuse.

The chair then closed the hearing. Mr. Cruea moved that, in light of the fact that this was the committee's third time before the Commission, the proposed fine be reduced to One Hundred Twelve Dollars and Fifty Cents ($112.50) plus the investigative costs in the sum of Two Dollars and Ninety Eight Cents ($2.98) for a total of One Hundred Fifteen Dollars and Forty Eight Cents ($115.48). Mr. Long seconded the motion. 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 then recognized Ms. Thompson who referred the Commission to page 2 of their spreadsheet, the information regarding the Fifth District Democratic Central Committee, case number 00-1529-102. She stated that the report was, in fact, timely filed but that she had assigned the case a case number. She asked the Commission to dismiss the case

Mr. Long moved to dismiss the case against the committee. Mr. Cruea seconded the motion. 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 then opened the discussion as to how to dispose of the remaining campaign finance cases on the Commission's docket for this date for which no person was present. Mr. Long suggested that the disposition of these cases could be made in motions grouping these committees together based on information contained on the record. The chair then closed the hearings on the remainder of the cases listed on the spread sheet, incorporated herein by reference, that had not yet been called for hearing this date. The record showed that these committees have failed to file timely campaign finance reports and further showed the number of prior appearances each committee has had before the Commission for campaign finance violations.

Mr. Long then moved that the actual fine imposed for the following committees be reduced to 25% of the proposed fine as shown on the spread sheet, plus the costs of mailing, for the reason that the committees have no prior appearances before the Commission: Richard D. Bray Campaign Committee, case number 00-719-99, the C& L Indiana PAC, case number 00-3181-109, the Taxpayers for Coates for Representative Committee, cause number 00-4339-114, the Monroe County Building Association PAC, case number 00-4415-116, the Committee to elect Ronier Scott, case number 00-4505-120, the Committee to Elect Jeff Lorenzo, case number 00-4510-121, the Kevin J. Duda Committee, case number 00-4512-122, the Committee for John Aguilera, case number 00-4515-124, Committee to elect Terri Austin, case number 00-4517-125, the Brownsburg Professional Firefighters Committee, case number 00-4536-126, the David White for State Representative Committee, case number 00-4541-127, and Taylor for House District 71, case number 00-4551-128. Mr. Perkins seconded the motion. 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 then disclosed that he would abstain from voting on any penalty to be assessed against the Eigth district Democrat Committee, case number 00-1782-105, other than to vote with the Commission to reduce the fine if the vote was otherwise unanimous.

The chair then moved that the actual fine imposed for the following committees be reduced to 50% of the proposed fine as shown on the spread sheet, plus the mailing costs, for the reason that the committees have had one prior appearance before the Commission: the Laborers Local 795 Political Action Committee, case number 00-1852-107, the Indiana Right to Life PAC, cause number 00-3450-111. The Indiana Association of Mortgage Brokers Political Action Committee, case number 00-4207-113, the Hoosier Osteopathic Political Action Committee, case number 00-4431-118, and the Woolery for State Senate Committee, case number 00-4559-129. Mr. Perkins seconded the motion. 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 then moved that the actual fine imposed for the following committees be reduced to 75% of the proposed fine as shown on the spread sheet, plus the mailing costs, for the reason that the committees have had two prior appearance before the Commission: the Kroger Indiana PAC, case number 00-801-100, the Ironworkers Local # 103 PAC, case number 00-1547-104, the Eighth District Democrat Committee, case number 00-1782-105, the Foot Support PAC, case number 00-3433-110, and Black America's Political Action Committee, case number 00-4173-112. Mr. Perkins seconded the motion. 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 then moved that the actual fine imposed for the following committees be imposed in the full amount of the proposed fine as shown on the spread sheet, plus the mailing costs, for the reason that the committees have had three or move prior appearance before the Commission: the International Brotherhood of Painters and Allied Trades, case number 00-1538-103, the International Chiropractors Association of Indiana, case number 00-1828-106, the Campaign for Hoosier Families, case number 00-4370-115.

The cases were disposed of as specifically set forth in detail below.

H. RICHARD BRAY CAMPAIGN COMMITTEE, CASE NO. 00-719-99

The record showed that the Richard Bray Campaign Committee has had no prior appearance before the Commission and has a proposed fine of One Hundred and Fifty Dollars ($150.00) plus investigative costs in the sum of Two Dollars and Ninety Eight Cents ($2.98).

Mr. Long moved that the proposed fine be reduced to Thirty Seven Dollars and Fifty Cents ($37.50) plus investigative costs in the sum of Two Dollars and Ninety Eight Cents ($2.98) for a total of Forty Dollars and Forty Eight Cents ($40.48). Mr. Perkins seconded the motion. There being no further discussion, the chair called the question, and declared that with four members voting "aye" (Mr. Cruea, Mr. Long, Mr. Perkins and Mr. Morgan), and no member voting "nay", the motion was adopted.

I. C & L INDIANA PAC, CASE NO. 00-3181-109

The record showed that the C & L Indiana PAC, case number 00-3181-109 has had no prior appearance before the Commission and has a proposed fine of Nine Hundred and Fifty Dollars ($950.00) plus investigative costs in the sum of Two Dollars and Ninety Eight Cents ($2.98).

Mr. Long moved that the proposed fine be reduced to Two Hundred and Thirty Seven Dollars and Fifty Cents ($237.50) plus the investigative costs in the sum of Two Dollars and Ninety Eight Cents ($2.98) for a total of Two Hundred and Forty Dollars and Forty Eight Cents ($240.48). Mr. Perkins seconded the motion. There being no further discussion, the chair called the question, and declared that with four members voting "aye" (Mr. Cruea, Mr. Long, Mr. Perkins and Mr. Morgan), and no member voting "nay", the motion was adopted.

J. TAXPAYERS FOR COATES FOR REPRESENATITVE COMMITTEE, CASE NO. 00-4339-114

The record showed that the Taxpayers for Coates for Representative Committee, case number 00-4339-114 has had no prior appearance before the Commission and has a proposed fine of One Hundred and Fifty Dollars ($150.00) plus investigative costs in the sum of Two Dollars and Ninety Eight Cents ($2.98).

Mr. Long moved that the proposed fine be reduced to Thirty Seven Dollars and Fifty Cents ($37.50) plus investigative costs in the sum of Two Dollars and Ninety Eight Cents ($2.98) for a total of Forty Dollars and Forty Eight Cents ($40.48). Mr. Perkins seconded the motion. There being no further discussion, the chair called the question, and declared that with four members voting "aye" (Mr. Cruea, Mr. Long, Mr. Perkins and Mr. Morgan), and no member voting "nay", the motion was adopted.

K. MONROE COUNTY BUILDING ASSOCIATION PAC, CASE NO. 00-4415-116

The record showed that the Monroe County Building Association PAC, case number 00-4415-116, has had no prior appearance before the Commission and has a proposed fine of One Thousand Dollars ($1000.00) plus investigative costs in the sum of Two Dollars and Ninety Eight Cents ($2.98).

Mr. Long moved that the proposed fine be reduced to Two Hundred Fifty Dollars ($250.00) plus investigative costs in the sum of Two Dollars and Ninety Eight Cents ($2.98) for a total of Two Hundred Fifty Two Dollars and Ninety Eight Cents ($252.98). Mr. Perkins seconded the motion. There being no further discussion, the chair called the question, and declared that with four members voting "aye" (Mr. Cruea, Mr. Long, Mr. Perkins and Mr. Morgan), and no member voting "nay", the motion was adopted.

L. COMMITTEE TO ELECT RONIER SCOTT, CASE NO. 00-4505-120

The record showed that the Committee to Elect Ronier Scott, case number 00-4505-120, has had no prior appearance before the Commission and has a proposed fine of Three Hundred Dollars ($300.00) plus investigative costs in the sum of Two Dollars and Ninety Eight Cents ($2.98).

Mr. Long moved that the proposed fine be reduced to Seventy Dollars ($75.00) plus investigative costs in the sum of Two Dollars and Ninety Eight Cents ($2.98) for a total of Seventy Seven Dollars and Ninety Eight Cents ($77.98). Mr. Perkins seconded the motion. There being no further discussion, the chair called the question, and declared that with four members voting "aye" (Mr. Cruea, Mr. Long, Mr. Perkins and Mr. Morgan), and no member voting "nay", the motion was adopted.

M. COMMITTEE TO ELECT JEFF LORENZO, CASE NO. 00-4510-121

The record showed that the Committee to Elect Jeff Lorenzo, case number 00-4510-121, has had no prior appearance before the Commission and has a proposed fine of One Hundred and Fifty Dollars ($150.00) plus investigative costs in the sum of Two Dollars and Ninety Eight Cents ($2.98).

Mr. Long moved that the proposed fine be reduced to Thirty Seven Dollars and Fifty Cents ($37.50) plus investigative costs in the sum of Two Dollars and Ninety Eight Cents ($2.98) for a total of Forty Dollars and Forty Eight Cents ($40.48). Mr. Perkins seconded the motion. There being no further discussion, the chair called the question, and declared that with four members voting "aye" (Mr. Cruea, Mr. Long, Mr. Perkins and Mr. Morgan), and no member voting "nay", the motion was adopted.

N. KEVIN J. DUDA COMMITTEE, CASE NO. 00-4512-122

The record showed that the Kevin J. Duda Committee, case number 00-4512-122, has had no prior appearance before the Commission and has a proposed fine of Eight Hundred and Fifty Dollars ($850.00) plus investigative costs in the sum of Two Dollars and Ninety Eight Cents ($2.98).

Mr. Long moved that the proposed fine be reduced to Two Hundred and Twelve Dollars and Fifty Cents ($212.50) plus investigative costs in the sum of Two Dollars and Ninety Eight Cents ($2.98) for a total of Two Hundred and Fifteen Dollars and Forty Eight Cents ($215.48). Mr. Perkins seconded the motion. There being no further discussion, the chair called the question, and declared that with four members voting "aye" (Mr. Cruea, Mr. Long, Mr. Perkins and Mr. Morgan), and no member voting "nay", the motion was adopted.

O. COMMITTEE FOR JOHN AGUILERA, CASE NO. 00-4515-124

The record showed that the Committee for John Aguilera, case number 00-4515-124, has had no prior appearance before the Commission and has a proposed fine of Five Hundred and Fifty Dollars ($550.00) plus investigative costs in the sum of Two Dollars and Ninety Eight Cents ($2.98).

Mr. Long moved that the proposed fine be reduced to One Hundred and Thirty Seven Dollars and Fifty Cents ($137.50) plus investigative costs in the sum of Two Dollars and Ninety Eight Cents ($2.98) for a total of One Hundred and Forty Dollars and Forty Eight Cents ($140.48). Mr. Perkins seconded the motion. There being no further discussion, the chair called the question, and declared that with four members voting "aye" (Mr. Cruea, Mr. Long, Mr. Perkins and Mr. Morgan), and no member voting "nay", the motion was adopted.

P. COMMITTEE TO ELECT TERRI AUSTIN, CASE NO. 00-4517-125

The record showed that the Committee to Elect Terri Austin, case number 00-4517-125, has had no prior appearance before the Commission and has a proposed fine of One Hundred and Fifty Dollars ($150.00) plus investigative costs in the sum of Two Dollars and Ninety Eight Cents ($2.98).

Mr. Long moved that the proposed fine be reduced to Thirty Seven Dollars and Fifty Cents ($37.50) plus investigative costs in the sum of Two Dollars and Ninety Eight Cents ($2.98) for a total of Forty Dollars and Forty Eight Cents ($40.48). Mr. Perkins seconded the motion. There being no further discussion, the chair called the question, and declared that with four members voting "aye" (Mr. Cruea, Mr. Long, Mr. Perkins and Mr. Morgan), and no member voting "nay", the motion was adopted.

Q. BROWNSBURG PROFESSIONAL FIREFIGHTERS COMMITTEE, CASE NO. 00-4536-126

The record showed that the Brownsburg Professional Firefighters Committee, case number 00-4536-126, has had no prior appearance before the Commission and has a proposed fine of Five Hundred Dollars ($500.00) plus investigative costs in the sum of Two Dollars and Ninety Eight Cents ($2.98).

Mr. Long moved that the proposed fine be reduced to One Hundred and Twenty Five Dollars ($125.00) plus investigative costs in the sum of Two Dollars and Ninety Eight Cents ($2.98) for a total of One Hundred and Twenty Seven Dollars and Ninety Eight Cents ($127.98). Mr. Perkins seconded the motion. There being no further discussion, the chair called the question, and declared that with four members voting "aye" (Mr. Cruea, Mr. Long, Mr. Perkins and Mr. Morgan), and no member voting "nay", the motion was adopted.

R. DAVID WHITE FOR STATE REPRESENTATIVE COMMITTEE, CASE NO. 00-4541-127

The record showed that the David White for State Representative Committee, case number 00-4541-127, has had no prior appearances before the Commission and has a proposed fine of Two Hundred Dollars ($200.00) plus investigative costs in the sum of Two Dollars and Ninety Eight Cents ($2.98).

Mr. Long moved that the proposed fine be reduced to Fifty Dollars ($50.00) plus investigative costs in the sum of Two Dollars and Ninety Eight Cents ($2.98) for a total of Fifty Two Dollars and Ninety Eight Cents ($52.98). Mr. Perkins seconded the motion. There being no further discussion, the chair called the question, and declared that with four members voting "aye" (Mr. Cruea, Mr. Long, Mr. Perkins and Mr. Morgan), and no member voting "nay", the motion was adopted.

S. TAYLOR FOR HOUSE DISTRICT 71 COMMITTEE, CASE NO. 00-4551-128

The record showed that the Taylor for House District 71 Committee, case number 00-4551-128, has had no prior appearance before the Commission and has a proposed fine of Three Hundred Dollars ($300.00) plus investigative costs in the sum of Two Dollars and Ninety Eight Cents ($2.98).

Mr. Long moved that the proposed fine be reduced to Seventy Five Dollars ($75.00) plus investigative costs in the sum of Two Dollars and Ninety Eight Cents ($2.98) for a total of Seventy Seven Dollars and Ninety Eight Cents ($77.98). Mr. Perkins seconded the motion. There being no further discussion, the chair called the question, and declared that with four members voting "aye" (Mr. Cruea, Mr. Long, Mr. Perkins and Mr. Morgan), and no member voting "nay", the motion was adopted.

T. LABORERS LOCAL 795 POLITICAL ACTION COMMITTEE, CASE NO. 00-1852-107

The record showed that the Laborers Local 795 Political Action Committee, case number 00-1852-107, has had one prior appearance before the Commission and has a proposed fine of One Hundred and Fifty Dollars ($150.00) plus investigative costs in the sum of Two Dollars and Ninety Eight Cents ($2.98).

The chair moved that the proposed fine be reduced to Seventy Five Dollars ($75.00) plus investigative costs in the sum of Two Dollars and Ninety Eight Cents ($2.98) for a total of Seventy Seven Dollars and Ninety Eight Cents ($77.98). Mr. Perkins seconded the motion. There being no further discussion, the chair called the question, and declared that with four members voting "aye" (Mr. Cruea, Mr. Long, Mr. Perkins and Mr. Morgan), and no member voting "nay", the motion was adopted.

U. INDIANA RIGHT TO LIFE PAC, CASE NO. 00-3450-111

The record showed that the Indiana Right to Life PAC, case number 00-3450-111, has had one prior appearance before the Commission and has a proposed fine of One Thousand ($1000.00) plus investigative costs in the sum of Two Dollars and Ninety Eight Cents ($2.98).

The chair moved that the proposed fine be reduced to Five Hundred Dollars ($500.00) plus investigative costs in the sum of Two Dollars and Ninety Eight Cents ($2.98) for a total of Five Hundred and Two Dollars and Ninety Eight Cents ($502.98). Mr. Perkins seconded the motion. There being no further discussion, the chair called the question, and declared that with four members voting "aye" (Mr. Cruea, Mr. Long, Mr. Perkins and Mr. Morgan), and no member voting "nay", the motion was adopted.

V. INDIANA ASSOCIATION OF MORTGAGE BROKERS POLITICAL ACTION COMMITTEE, CASE NO. 00-4207-113

The record showed that the Indiana Association of Mortgage Brokers Political Action Committee, case number 00-4207-113, has had one prior appearance before the Commission and has a proposed fine of Five Hundred Dollars ($500.00) plus investigative costs in the sum of Two Dollars and Ninety Eight Cents ($2.98).

The chair moved that the proposed fine be reduced to Two Hundred and Fifty Dollars ($250.00) plus investigative costs in the sum of Two Dollars and Ninety Eight Cents ($2.98) for a total of Two Hundred and Fifty Two Dollars and Ninety Eight Cents ($252.98). Mr. Perkins seconded the motion. There being no further discussion, the chair called the question, and declared that with four members voting "aye" (Mr. Cruea, Mr. Long, Mr. Perkins and Mr. Morgan), and no member voting "nay", the motion was adopted.

W. HOOSIER OSTEOPATHIC POLITICAL ACTION COMMITTEE, CASE NO. 00-4431-118

The record showed that the Hoosier Osteopathic Political Action Committee, case number 00-4431-118, has had one prior appearance before the Commission and has a proposed fine of One Hundred and Fifty ($150.00) plus investigative costs in the sum of Two Dollars and Ninety Eight Cents ($2.98).

The chair moved that the proposed fine be reduced to Seventy Five Dollars ($75.00) plus investigative costs in the sum of Two Dollars and Ninety Eight Cents ($2.98) for a total of Seventy Seven Dollars and Ninety Eight Cents ($77.98). Mr. Perkins seconded the motion. There being no further discussion, the chair called the question, and declared that with four members voting "aye" (Mr. Cruea, Mr. Long, Mr. Perkins and Mr. Morgan), and no member voting "nay", the motion was adopted.

X. WOOLERY FOR STATE SENATE COMMITTEE, CASE NO. 00-4559-129

The record showed that the Woolery for State Senate Committee, case number 00-4559-129, has had one prior appearance before the Commission and has a proposed fine of One Thousand Dollars ($1000.00) plus investigative costs in the sum of Two Dollars and Ninety Eight Cents ($2.98).

The chair moved that the proposed fine be reduced to Five Hundred Dollars ($500.00) plus investigative costs in the sum of Two Dollars and Ninety Eight Cents ($2.98) for a total of Five Hundred and Two Dollars and Ninety Eight Cents ($502.98). Mr. Perkins seconded the motion. There being no further discussion, the chair called the question, and declared that with four members voting "aye" (Mr. Cruea, Mr. Long, Mr. Perkins and Mr. Morgan), and no member voting "nay", the motion was adopted.

Y. KROGER INDIANA PAC, CASE NO. 00-801-100

The record showed that the Kroger Indiana PAC, case number 00-801-100, has had two prior appearances before the Commission and has a proposed fine of Two Hundred and Fifty Dollars ($250.00) plus investigative costs in the sum of Two Dollars and Ninety Eight Cents ($2.98).

The chair moved that the proposed fine be reduced to One Hundred and Eighty Seven Dollars and Fifty Cents ($187.50) plus investigative costs in the sum of Two Dollars and Ninety Eight Cents ($2.98) for a total of One Hundred and Ninety Dollars and Forty Eight Cents ($190.48). Mr. Perkins seconded the motion. There being no further discussion, the chair called the question, and declared that with four members voting "aye" (Mr. Cruea, Mr. Long, Mr. Perkins and Mr. Morgan), and no member voting "nay", the motion was adopted.

Z. IRONWORKERS LOCAL # 103 PAC, CASE NO. 00-1547-104

The record showed that the Ironworkers Local # 103 PAC, case number 00-1547-104, has had two prior appearances before the Commission and has a proposed fine of One Hundred and Fifty Dollars ($150.00) plus investigative costs in the sum of Two Dollars and Ninety Eight Cents ($2.98).

The chair moved that the proposed fine be reduced to One Hundred and Twelve Dollars and Fifty Cents ($112.50) plus investigative costs in the sum of Two Dollars and Ninety Eight Cents ($2.98) for a total of One Hundred and Fifteen Dollars and Forty Eight Cents ($115.48). Mr. Perkins seconded the motion. There being no further discussion, the chair called the question, and declared that with four members voting "aye" (Mr. Cruea, Mr. Long, Mr. Perkins and Mr. Morgan), and no member voting "nay", the motion was adopted.

AA. EIGHTH DISTRICT DEMOCRAT COMMMITTEE, CASE NO. 00-1782-105

The record showed that the Eighth District Democrat Committee, case number 00-1782-105, has had two prior appearances before the Commission and has a proposed fine of One Hundred and Fifty Dollars ($150.00) plus investigative costs in the sum of Two Dollars and Ninety Eight Cents ($2.98).

The chair moved that the proposed fine be reduced to One Hundred and Twelve Dollars and Fifty Cents ($112.50) plus investigative costs in the sum of Two Dollars and Ninety Eight Cents ($2.98) for a total of One Hundred and Fifteen Dollars and Forty Eight Cents ($115.48). Mr. Perkins seconded the motion. There being no further discussion, the chair called the question, and declared that with four members voting "aye" (Mr. Cruea, Mr. Long, Mr. Perkins and Mr. Morgan), and no member voting "nay", the motion was adopted.

BB. FOOT SUPPORT PAC, CASE NO. 00-3433-110

The record showed that the Foot Support PAC, case number 00-3433-110, has had two prior appearances before the Commission and has a proposed fine of Five Hundred and Fifty Dollars ($550.00) plus investigative costs in the sum of Two Dollars and Ninety Eight Cents ($2.98).

The chair moved that the proposed fine be reduced to Four Hundred and Twelve Dollars and Fifty Cents ($412.50) plus investigative costs in the sum of Two Dollars and Ninety Eight Cents ($2.98) for a total of Four Hundred and Fifteen Dollars and Forty Eight Cents ($415.48). Mr. Perkins seconded the motion. There being no further discussion, the chair called the question, and declared that with four members voting "aye" (Mr. Cruea, Mr. Long, Mr. Perkins and Mr. Morgan), and no member voting "nay", the motion was adopted.

CC. BLACK AMERICA'S POLITICAL ACTION COMMITTEE, CASE NO. 00-4173-112

The record showed Black America's Political Action Committee, case number 00-4173-112, has had two prior appearances before the Commission and has a proposed fine of One Hundred and Fifty Dollars ($150.00) plus investigative costs in the sum of Two Dollars and Ninety Eight Cents ($2.98).

The chair moved that the proposed fine be reduced to One Hundred and Twelve Dollars and Fifty Cents ($112.50) plus investigative costs in the sum of Two Dollars and Ninety Eight Cents ($2.98) for a total of One Hundred and Fifteen Dollars and Forty Eight Cents ($115.48). Mr. Perkins seconded the motion. There being no further discussion, the chair called the question, and declared that with four members voting "aye" (Mr. Cruea, Mr. Long, Mr. Perkins and Mr. Morgan), and no member voting "nay", the motion was adopted.

DD. INTERNATIONAL BROTHERHOOD OF PAINTERS AND ALLIED TRADES, CASE NO. 00-1538-103

The record showed that the International Brotherhood of Painters and Allied Trades, case number 00-1538-103, has had four prior appearances before the Commission and has a proposed fine of One Hundred and Fifty Dollars ($150.00) plus investigative costs in the sum of Two Dollars and Ninety Eight Cents ($2.98).

Mr. Long moved that the proposed fine plus investigative costs, in the total sum of One Hundred and Fifty Two Dollars and Ninety Eight Cents ($152.98) be imposed. Mr. Perkins seconded the motion. There being no further discussion, the chair called the question, and declared that with four members voting "aye" (Mr. Cruea, Mr. Long, Mr. Perkins and Mr. Morgan), and no member voting "nay", the motion was adopted.

EE. INTERNATIONAL CHIROPRACTORS ASSOCIATION OF INDIANA, CASE NO. 00-1828-106

The record showed that the International Chiropractors Association of Indiana, case number 00-1828-106, has had four prior appearances before the Commission and has a proposed fine of One Hundred and Fifty Dollars ($150.00) plus investigative costs in the sum of Two Dollars and Ninety Eight Cents ($2.98).

Mr. Long moved that the proposed fine plus investigative costs, in the total sum of One Hundred and Fifty Two Dollars and Ninety Eight Cents ($152.98) be imposed. Mr. Perkins seconded the motion. There being no further discussion, the chair called the question, and declared that with four members voting "aye" (Mr. Cruea, Mr. Long, Mr. Perkins and Mr. Morgan), and no member voting "nay", the motion was adopted.

FF. CAMPAIGN FOR HOOSIER FAMILIES, CASE NO. 00-4370-115

The record showed that the Campaign for Hoosier Families, case number 00-4370-115, has had four prior appearances before the Commission and has a proposed fine of One Thousand Dollars ($1000.00) plus investigative costs in the sum of Two Dollars and Ninety Eight Cents ($2.98).

Mr. Long moved that the proposed fine plus investigative costs, in the total sum of One Thousand and Two Dollars and Ninety Eight Cents ($1002.98) be imposed. Mr. Perkins seconded the motion. There being no further discussion, the chair called the question, and declared that with four members voting "aye" (Mr. Cruea, Mr. Long, Mr. Perkins and Mr. Morgan), and no member voting "nay", the motion was adopted.

GG. ADMINISTRATIVE DISSOLUTION OF COMMITTEES

The chair recognized Mr. Simmons who stated that there was one committee at the last Commission meeting that staff proposed for dissolution but was not dissolved at the meeting. He explained that, at the request of the Commission, staff addressed two issues raised at the Commissions' prior meeting. He explained that the committee at issue was the Committee for Chochos. He advised that one of the issues raised by the Commission was whether the debt to a vendor in the sum of Nine Hundred and Sixty Three Dollars ($963.00), identified on the last report filed by this committee, and entered into the record at the Commission's last meeting, had been paid. He stated that staff contacted the vendor and found that the debt remained unpaid.

He also stated that, given that the debt remained unpaid, the Commission asked staff to look into whether the committee could nonetheless be administratively dissolved. He reviewed the provision in the statute that required the Commission to make findings in support of an order to administratively dissolve a committee. He stated that the statute required the Commission to find that the committee owes no debt other than a debt in the form of a fine imposed by the Commission or a debt the candidate's committee owes to the candidate. He explained that, in his opinion, based upon the required statutory findings, the Commission has no statutory authority to close a committee that owes an outstanding debt to a vendor.

Mr. Long stated that it would appear under the statute that a committee must be kept open indefinitely and indicated that perhaps the legislature should consider allowing the Commission to close such committees after a period of time, perhaps after the statute of limitations runs on the collection of the debt. Otherwise, he stated, the Election Division would be required to keep bringing up the same committees for campaign enforcement before the Commission over and over indefinitely.

Mr. Simmons stated that the campaign finance laws simply recognize committees as accounting entities, they do not give corporate existence to the committees. He explained that, in his opinion, the Commission's decision to administratively dissolve a committee should have no adverse legal affect on the vendor's ability to collect the debt. He further stated that perhaps the legislature simply wanted to keep these committees before the public eye so that the public would know the committee owes money that it hasn't paid.

HH. ADOPTION OF ORDERS 2000-94 THROUGH 2000-101

The chair recognized Ms. Robertson who stated that other than Orders 2000-94 through 2000-101 there were a couple of additional orders provided to the Commission in their packet that the Commission may want to consider and approve. She stated that the first additional order that the Commission may wish to approve is Order 1999-41 which is an order that deals with correcting the fine originally imposed against the Committee to Elect Mark Struble. She stated that the original campaign finance order issued as to this committee was in error and Order 1999-41 corrects that error consistent with the Commission's vote on this matter at its last meeting.

She stated that the second additional order is Order 2000-103 which is an order that dismisses the case as to the Fifth District Democratic Central Committee that was accidently placed upon the list of committees with campaign finance filing violations. Ms. Robertson stated that all of these orders were prepared and are now ready for signature at the pleasure of the Commission.

Mr. Long then moved to approve tendered Orders 1991-41, Order 2000-103, and Orders 2000-94 through 2000-101, inclusive. Mr. Perkins seconded this motion. There being no further discussion, the chair called the question and declared that with four members voting "aye" (Mr. Cruea, Mr. Long, Mr. Perkins and Mr. Morgan), and no member voting "nay", the motion was adopted and the orders where forthwith executed by the Commission.

Copies of said orders are incorporated by reference in these minutes.

6. VOTING SYSTEMS

The chair recognized Mr. Valentine who directed the attention of the Commission to a memo he prepared and signed recommending approval of the ES&S AERO 3.53 software upgrade. He stated that ES&S offered the Election Division a great deal of information about this software upgrade and that he has evaluated that information. He stated that the software upgrade does not change in any way the tabulation function of the voting system but merely changes the format in which information is reported. He stated that, as contained in his memo, this software is used in the ES&S Model PBC 2100 Precinct Tabulator but he also believes it is used in other systems and that he would recommend that the Commission approve ES&S's upgraded software for use in these additional systems. He stated that the software is also used in, for example, ES&S's Model 150 optical scan voting system, its Model 550 voting system and its PBCT voting system.

Mr. Valentine stated that the second half of his memo involves a request by vendor Governmental Business Systems, Inc. ("GBS") to approve its software upgrades. He stated that he assumed that this request is still pending. He stated that GBS sent some information about its proposed upgrade but the information was not sufficient to justify a recommendation to the Commission for approval at this time. He stated that he contacted the GBS and its representative indicated that GBS needed additional time to get information to the Election Division on its proposed software upgrade.

Mr. Valentine stated that he anticipates that other requests for approval of software upgrades will be made and that the Commission will have to determine how to deal with them. He indicated that staff had discussed the issue. He further stated that the Commission has the authority under statute to require additional testing of voting systems that have software changes if it does not feel comfortable with its, or staff's level of expertise, in evaluating software changes. He pointed out that, on the other hand, the Commission may consider what is fair for the vendors and for the counties who desire to use available upgraded software.

Mr. Valentine suggested that it may be time for the Commission to take a comprehensive look at how the Commission is going to deal with software changes and upgrades. He offered to assist the Commission by contacting the Federal Election Commission and other states to determine how they are dealing with such changes and upgrades.

The chair expressed some discomfort in approving software changes and upgrades for voting systems, especially in light of problems experienced during the recent primary election. The chair asked if staff had any detail about the problems occurring during the primary election. He stated that he had heard that election workers in some county somehow erased all the voting information off of a disk in their voting machine. He also heard that this county certified three times the actual vote total to the state before they realized the error.

The chair asked staff to look into the possibility of conducting spot checks on voting systems to make sure that the voting systems in actual use continue to meet the standards for certification that the systems met during the original certification. The chair indicated that the circuit court clerks had expressed some interest in, and support for, such a program.

Mr. Valentine raised the issue of who would pay for the costs of testing in the event such a program were instituted. The chair stated that the Commission might have to bear the costs of testing but that the costs of such a program was certainly an issue that needs to be addressed, that is, whether there would be funds available for that purpose.

Mr. Long asked staff if the Election Division had a listing of the voting systems used by the counties. Mr. Valentine stated that the Election Division does have that information and that the information is posted on the Election Division's web site. Mr. Long indicated that any program for spot check testing should take into account the variety of systems used in Indiana rather than testing the same type of voting system several times. The chair indicated that he envisioned a blind spot check program where the names of the counties, along with the names of the voting system vendors, would be randomly selected separately.

Mr. Long requested that staff address the issue of cost and budgeting for such a program. Ms. Robertson stated that currently there is no appropriation for such a program in the budget for the Election Division and that she does not know what the projected cost of such a program would be. Mr. Valentine indicated that he would investigate the costs of such a program by contacting the independent testing authorities.

Jack Black, representative of ES&S stated that it would be thousands of dollars. He stated that the minimum costs of certifying a system by an independent testing authority runs between thirty thousand and fifty thousand dollars.

Mr. Long stated that the relevant cost at issue is not the cost of initial certification but the cost to re-certify a system that has been previously certified taking into account the software change. He stated that a potential source of funding for the certification of software changes could be fees assessed against a vendor requesting that the Commission approve the software changes for use in Indiana rather than using tax dollars to pay for the certification.

Mr. Black stated that there is a distinction in voting systems between the tabulation function and the reporting function and that the proposed changes relate only to the reporting function part of the voting system. Mr. Long stated that regardless the label attached to the function, his concern is that the readout from a voting system, the document that local officials certify their election results on, be accurate.

The chair asked staff for information about the county that erased the results from their voting system. Ms. Robertson indicated that this occurred in Scott County. She stated that this was a GBS system and that the primary election was the first time that they had used this system. She explained that one of the precinct election boards in the county accidently erased the cartridge that fits in the voting machine prior to delivering the cartridge to the county election board for canvassing, however, the system did correctly tabulate the votes and the precinct election board had printed out the results for the precinct before the cartridge was accidently erased. She stated that the county election board manually tabulated the votes from the precinct since this was an optical scan system. She stated that the manual tabulation matched the print out from the machine. She stated that the county had the vendor manually check the system also.

Ms. Marendt stated that there was a problem in the results reported from Allen County also. She stated that the problem was discovered when a staff member was entering election results and the results did not match up. She stated that, as a result, the county was called and advised that the county's reported totals did not match the results itemized on the canvass sheets. She stated that the error was discovered because someone entering the election results right after the election on a precinct by precinct basis caught it. She stated that, as a result of the error, the county had to submit an amended CEB-23 and 24 to the Election Division. She stated that she had spoken with the FEC and many other state election directors and found that there is no other state that has an audit procedure for voting systems in place at this time. She said that she has received information that reporting functions in certain voting systems that were not supposed to affect the tabulation function in that system did, in fact, affect the tabulation function. She stated that this problem was not discovered until election night. She stated that her knowledge of such potential problems, and her lack of expertise in examining and certifying software, made her hesitant to sign off on a memo recommending approval of software changes to voting systems previously approved by the Commission.

Mr. Valentine stated that another consideration that the Commission should take into account is fairness from vendor to vendor. He stated that the Election Division receives complaints from vendors about other vendors use of unauthorized voting systems, however, the complaining vendor will refuse to go on record by filing a formal complaint with the Commission. The chair stated that that fact that this occurs would provide further support for a program of random audits of voting systems.

The chair then asked staff to also address the issue of remedy or penalty if an audit found that a voting system in use is different than the system that was previously certified by the Commission. The chair mentioned the possibility of fining the vendor and/or decertifying the voting system. Mr. Long stated that another thing to consider, and perhaps this could be addressed by the legislature, is requiring the vendors to provide some kind of surety for the counties that purchase these voting systems to protect the county in the event that a voting system is decertified. He was concerned that a financial impact to a smaller county could be enormous.

Mr. Valentine stated that the Commission has the right to under statute to decertify a system. He also stated that Indiana statute makes it a felony to use an uncertified system. Ms. Marendt mentioned the possibility of also giving a vendor whose system was not in compliance with an approved voting system the option of coming into compliance within a specified period of time. She also stated that there is currently no requirement in place that requires the counties to report election day problems with their voting systems. She further stated that counties may be reluctant to report voting systems problems and, if they don't, then the Election Division and the Commission are not going to be able to identify trouble spots and react proactively. The chair suggested that the counties fill out a form to report such voting system problems. Mr. Long suggested that the Commission could also consider requiring the vendor to report problems so that the county reports and the vendor reports could be cross referenced for consistency and accuracy. Mr. Long stated that he is confident that the vast percentage of voting system vendors are reputable but he is nonetheless concerned about voting systems failing.

Ms. Marendt suggested that the Commission also address the issue of uniformity and consistency in the way election returns are reported to the Election Division. She stated that the different voting systems in use by the counties provide results in different formats. Mr. Valentine agreed that the Election Division has difficulty in getting returns back in a consistent format and some formats are not easily recognizable because of the different systems in use.

Mr. Valentine stated that he would look into the costs associated with conducting an auditing program and the costs associated with having an independent testing authority evaluate a change to a voting system that has already been approved. The chair also suggested that staff look into preparing a form to report voting systems problems to the Commission. The chair also requested staff to explore the potential actions that the Commission may take in fining or imposing other penalties or remedies in the event that a vendor's voting system as audited is not consistent with the voting system previously certified by the Commission.

Mr. Long suggested that the Commission schedule a meeting devoted to these voting systems issues and invite the vendors to participate. The chair asked for some follow up. The chair stated that Allen County was meeting with its vendor over the problems experienced there and he stated that he would like more information about what happened in Scott County.

The chair asked Mr. Valentine to address the current requests for approval for ES&S's AERO 3.53 software. Mr. Valentine stated that he is recommending that the Commission approve this system. He stated that he recognized that the larger issues will have to be addressed at some point. He stated that the information on the proposed software change submitted by ES&S was in a format that he understood and that he feels comfortable in recommending that the Commission approve the change. The chair noted that Mr. Valentine had signed the memo recommending that the Commission approve the software change but that Ms. Marendt had not. The chair asked Ms. Marendt for an explanation of why she did not sign the memo. Ms. Marendt stated that she was uncomfortable in approving the software changes for this voting system at this time.

Mr. Morgan asked for a clarification of the implications of not approving the proposed software change. Mr. Valentine stated that ES&S's system would still be certified to use the previously approved software. Mr. Morgan requested that the vendor, ES&S, address the affect of not approving the software change on the use of their voting systems. Jack Black, a representative of ES&S, stated that if they could not use the proposed software changes then counties like Marion County could not use the previously approved 3.52 system because of the limitations of this software. He stated that the 3.53 software enhances the capability of the voting system to hold larger volumes of information. He stated that this capacity is needed in Marion County. He explained that the 3.53 software offers more reporting options and is both quicker and better for all current customers outside of Marion County. He stated that the newer version could also help in Delaware County where they want to connect the election results directly to cable television.

Mr. Long asked whether software changes that give a voting system the capability for directly linking to cable television is something the Commission needs to evaluate and approve. Mr. Long stated that he did not feel like the Commission should approve that aspect of a voting system because that capability is not required by Indiana law.

Mr. Valentine referred the Commission to IC 3-11-5-5 which reads: "after the Commission has approved a voting machine, if the Election Division or the designated person certifies to the Commission that an improvement or change does not impair the voting machine's accuracy, efficiency or capacity, this chapter does not require a reexamination or reapproval of the machine." He stated that his recommendation is that the changes proposed by ES&S do not constitute an impairment to the accuracy, efficiency or capacity of the voting machine. He stated that his recommendation is based on his conclusion that the proposed changes affect the reporting functions of the software, not the tabulation function. He stated, however, that the Commission may want to set up ground rules to help the Commission determine what kinds of software changes may affect the accuracy, efficiency or capacity of a voting machine. He stated that it may become difficult to determine how a reporting function may affects the tabulation function when such functions are placed together in one unified software system. Mr. Mogan and Mr. Valentine also pointed out instances where the reported problems with election results were not vendor issues but human error.

There being no further discussion the chair asked if any of the Commission wished to make a motion. Mr. Long moved that the Commission make a finding, based upon the provisions of IC 3-11-5-5, and based upon the representations of the vendor and the recommendation of Mr. Valentine, that the software changes contained in ES&S version 3.53, be approved for use in voting systems previously approved by the Commission without further reexamination or reapproval of those voting systems. The chair seconded the motion. There being no further discussion the chair called the question and declared that with four members voting "aye" (Mr. Cruea, Mr. Long, Mr. Perkins and Mr. Morgan), and no member voting "nay", the motion was adopted.

Mr. Black requested that the Commission allow the vendors to participate in the formulation of any legislation should the Commission consider making recommendations regarding voting systems legislation to the legislature.

7. FORMS APPROVAL

The chair recognized Ms. Robertson who directed the Commission to Order 2000-102 in their packets. She stated that there were three forms that had to be updated because of new legislation. First, the ABS-3 form, which is a special write-in ballot that is sent to uniform military voters and overseas voters. She stated that this form had been previously revised for this election, however, the general assembly changed the public question language requiring another revision. She explained that these forms need to be mailed to the counties within the next couple of days. She stated that voters who receive these ballots also get a regular absentee ballot when regular absentee voting begins. She stated that if a voter votes by the special absentee ballot and also by the regular absentee ballot then the counties are instructed to disregard the special absentee ballot and to count the regular absentee ballot.

Ms. Robertson then stated that the CAN-28 form in their packets is a revised form for certification to fill a ballot vacancy for state legislative office. The legislature removed the vice precinct committeemen from those eligible to vote at a caucus called to fill this type of ballot vacancy and this legislative change necessitated a change to the CAN-28 form.

Ms. Robertson also directed the attention of the Commission to IEC 10 form in their packets. She explained that this form is the form used by the counties to certify the completion of required pre-election testing of their ballot card systems. She stated that new legislation made substantive changes to pre-test and post-test procedures for ballot card systems and the new form has been updated to reflect those changes.

There being no further discussion Mr. Long made a motion to approve Order 2000-102. The chair seconded the motion. There being no further discussion the chair called the question and declared that with four members voting "aye" (Mr. Cruea, Mr. Long, Mr. Perkins and Mr. Morgan), and no member voting "nay", the motion was adopted.

8. OTHER BUSINESS

The chair recognized Mr. Simmons who stated that staff prepared a draft advisory opinion in response to the Commission's request to address the issue of establishing filing deadlines for candidate challenges. He stated that, as background, Indiana statute establishes only the date by which the Commission must make a decision on a candidate challenge. He stated that the statute does not address the date by which a candidate challenge must be filed with the Commission. He stated that, after examining the statute, staff also determined that the statute does not even address the date by which the Commission must decide candidate challenges with respect to candidates who are nominated at the primary election and candidates who are nominated at a party convention.

He explained that the way deadlines are structured in the draft advisory opinion was to schedule the hearings for candidate challenges to correspond to the regularly scheduled Commission meeting preceding the deadline set forth in statute for the Commission's decision on the challenge. He stated, for example, that the deadline for the Commission to determine a challenge to a petition candidate is September 8. He stated that, therefore, the hearing for any such challenge was scheduled in the draft advisory opinion to coincide with the Commission's regularly scheduled Thursday August 24 meeting. He explained that the deadline for filing a candidate challenge to be heard on that date was established in the draft advisory opinion to be the Monday preceding the Thursday August 24 meeting, or more specifically, Monday August 21 at noon. He further explained that this was done for each type of candidate and that the candidates nominated at primary and party convention, for which no deadlines exist in statute, were placed with the candidates who filled early ballot vacancies. He stated that the deadline for the Commission to decide candidate challenges for early ballot vacancies was October 2. He stated that, therefore, these challenges were scheduled in the draft advisory opinion for hearing at the Commission's regularly scheduled September 28 meeting. He stated that the deadline for filing such challenges with the Commission was established in the draft advisory opinion as noon Monday September 25. He explained further that under the draft advisory opinion the Commission retains the flexibility to schedule hearings at other times.

The chair asked if there was any discussion. Mr. Long emphasized the importance of providing candidates with sufficient notice of a challenge hearing. He stated that he felt that Monday before the meeting did not give the candidate enough time to get notice from the Election Division and have the opportunity to adequately prepare and meet the challenge. He suggested that the Friday preceding these regularly scheduled Thursday Commission meetings sounded more reasonable to him. The chair agreed.

Mr. Long then moved to approve the tendered draft advisory opinion with the candidate challenge filing deadlines moved to Friday at noon preceding the regularly scheduled meetings of the Commission. The chair seconded the motion. There being no further discussion, the chair called the question and declared that with four members voting "aye" (Mr. Cruea, Mr. Long, Mr. Perkins and Mr. Morgan), and no member voting "nay", the motion was adopted and the order was forthwith executed by the Commission. A copy of the executed advisory opinion, number 2000-01, is incorporated into these minutes by reference.

9. ADJOURNMENT

The chair asked if there was any further business. There being no response, Mr. Long moved that the Commission adjourn. Mr. Perkins seconded the motion. 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 3:30 p.m.

Respectfully submitted,