michele smith for alderman.org breaks election law complaint-chicago.board.of.elections

8/7/2019 Michele Smith For Alderman.org Breaks Election Law Complaint-Chicago.Board.of.Elections

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BEFORE THE ILLINOIS STATE BOARD OF ELECTIONSDecember 16 , 2010

at10 oclock a.m.

BARBARA GUTTMANN and )FRIENDS OF VI DALEY, )

Petitioners, )vs. ) No. 10 CD 074

FRIENDS OF MICHELLE SMITH, )Respondent. )

STENOGRAPHIC REPORT OF PROCEEDINGS had in theabove-entitled cause held at the James R. ThompsonCenter, 100 West Randolph Street, Room 14-100,Chicago, Ill inois, MR . MARK GREBEN, Hearing Examiner.

Reported by: Anna M. Morales, CSR, RMRLicense No. : 084-002854

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I APPEARANCES:2 ADDUCCI DORF LEHNER MITCHELL3 & BLANKENSHIP, P.C.4 BY: MR . MICHAEL C. DORF5 150 North Michigan Avenue, Suite 21306 Chicago, Illinois 606017 (312) 781-28068 [email protected] Representing the Petitioners;1011 LAW OFFICES OF RICHARD K. MEANS12 BY: MR . RICHARD K. MEANS13 806 Fair Oaks Avenue14 Oak Park, Illinois 6030215 (708) 386-112216 [email protected] Representing the Respondent.1819 ALSO PRESENT:20 Ms. Barbara Guttmann21222324 2



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I HEARING EXAMINER GREBEN: My name is2 Mark Greben. I am the Hearing Examiner thats been3 appointed to the matter of Barbara Guttmann and4 Friends of Vi Daley -- G-u-t-t-m-a-n-n -- versus5 Friends of Michelle Smith, respondent, Case Number6 10 CD 074.7 This is a public hearing thats been held8 as a result of a complaint that was filed on9 July 21, 2010. Subsequent to the filing of the10 complaint, a closed preliminary hearing was held;11 and, at the conclusion of this hearing, the Hearing12 Examiner made a recommendation to the Board that13 the complaint was filed on justifiable grounds and14 that a public hearing be held.15 Subsequent to this recommendation, the16 Board gave the matter due consideration and, in17 fact, issued an order for an open public hearing,18 and thats why we are here today.19 At this time, I would like to inform all20 parties specifically since we have a nonattorney21 here and we have the complainant here that, as the22 Hearing Examiner, I merely make a recommendation,23 and its not a judgment, its not an order. The24 recommendation goes to both the Board and the 3



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I General Counsel and, ultimately, it is the Boards2 decision to decide whether or not theyre going to3 find that a violation has occurred.4 I recognize that the attorneys here are5 very familiar with the procedure, but I wanted you6 to understand that as well.7 MS. GUTTMANN: Thank you.8 HEARING EXAMINER GREBEN: Also, at this time, I9 would like all parties to announce their presence10 and on whose behalf they are appearing.11 MR. DORF: Good morning, Mr. Hearing Examiner.12 Michael Dorf, D-o-r-f, on behalf of complainant,13 Friends of Vi Daley, and Im accompanied by14 Ms. Barbara Guttmann, G-u-t-t-m-a-n-n, the15 Treasurer of Friends of Vi Daley.16 MR . MEANS: Good morning, Mr. Greben.17 Richard Means, M-e-a-n-s, representing Friends of18 Michelle Smith.19 HEARING EXAMINER GREBEN: Since this matter is20 limited to a single issue, and its not very21 complicated, aside from any evidence thats going22 to be introduced, its not as if there is multiple23 issues that overlap and need to be considered, Im24 going to ask if -- what I would like is if for the 4



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1 complainant to proceed and present their case and2 their witnesses. At the conclusion, I would ask3 for the respondent, Mr. Means, for you to present4 your case and submit any evidence that you deem5 necessary and appropriate, and well kind of go6 back and fo rth until such a point in time that I7 think to the extent that you want to make a closing8 argument, the closing arguments would be in order.9 Theyre not required.10 But I just wanted you to be aware that11 well keep the matter conducted in that format.12 Are there any objections?13 MR . DORF: No, sir.14 MR . MEANS: No.15 MR . DORF: Mr. Hearing Examiner, may I ask one16 procedural question? Is the report of the examiner17 in the closed preliminary hearing part of the18 public record at this time?19 HEARING EXAMINER GREBEN: At this time, yes.20 Can you clarify what you mean by for the21 record?22 MR . DORF: Basically our case is stated in the23 prior Hearing Examiners statement of the24 complainants case-in-chief, and without having to

5]



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1 read it into the record, is it already in the2 record?3 HEARING EXAMINER GREBEN: No because should4 this case go up on appeal, I think it would be5 appropriate, not to mention the fact that acting as6 a quasi finder of fact, I might need to elicit more7 information from either of the parties.8 I think it would be appropriate,9 especially given the fact that there are not a lo t10 of issues, for you to present the case as briefly11 as you can or take as much time as you need because12 I dont know if theres any one issue in the closed13 hearing that I would like to know more about. In14 fact, there might be information that I need to15 consider to make my recommendation that did not16 come to light at the closed hearing.17 So to that extent, we need to function18 de novo.19 MR . DORF: I will try to be very brief then.20 HEARING EXAMINER GREBEN: I dont mean to21 interrupt, but I have reviewed the record and I am22 familiar with the case.23 MR . DORF: I am happy to introduce --24 MR . MEANS: I just checked my f i le. I dont 6

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I have a copy of that. If I could get a copy of it,2 Ive got no objection. I think its properly in3 the open hearing f i le, but I would like to have a4 copy because youre going to be referring to it.5 If we could take a very brief break unless, Mark,6 you have two copies in your f i le.7 HEARING EXAMINER GREBEN: I have only one copy8 I believe.9 MR. MEANS: If we could take a quick break and10 get that copied?11 HEARING EXAMINER GREBEN: Please note were in12 recess.13 (Recess taken.)14 HEARING EXAMINER GREBEN: Back on record.15 Mr. Dorf, would you like to proceed at16 this time?17 MR. DORF: Thank you, Mr. Hearing Examiner.18 Complainant, Friends of Vi Daley, allege19 that three names which were on the complainants20 D-2 financial disclosure report were used by the21 respondent, Friends of Michelle Smith, for22 fund-raising purposes in order to solicit campaign23 contributions which have proven would have been24 violation of Section 9-17 of the Illinois Election 7



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1 Code, and the three individuals identified in the2 complaint were Louise Guttmann, G-u-t-t-m-a-n-n,3 who also is the mother of the treasurer of the4 committee, Barbara Guttmann, Mr. David Domovic,5 D-o-m-o-v-i-c, and Pa t Berns, B-e-r-n-s.6 In the course of the preliminary closed7 hearing, the respondent acknowledged that with8 respect to Ms. Louise Guttmann, it did appear that9 the name on the fund-raising solicitation had come10 from the D-2. With respect to the other two11 individuals, the respondent was unable to12 demonstrate that the two names did not come from13 the D-2.14 Given that acknowledgment that in fact --15 from respondent -- that a violation did exist, we16 saw no need to present any further evidence, and17 that really is our case-in-chief.18 HEARING EXAMINER GREBEN: Mr. Means, any time19 you wish to respond.20 MR . MEANS: Are you resting?21 MR . DORF: Well , subject to rebuttal22 HEARING EXAMINER GREBEN: Right. Again,23 procedurally, as I said earlier, allow the24 complainant to present its case, respondent to

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I present theirs and then --2 MR. MEANS: If hes done, thats fine. But Im3 not required to answer until hes done.4 HEARING EXAMINER GREBEN: Hes done presenting5 his opening.6 MR . DORF: Then I would formally request that7 the -- either two paragraphs comprising8 complainants case-in-chief and the report of the9 Hearing Examiner in the closed preliminary hearing10 be entered into the record or that I may just11 simply read the two -- those and the findings of12 the Hearing Examiner.13 HEARING EXAMINER GREBEN: Ill accept --14 MR . MEANS: The complainants case-in-chief15 paragraph and the respondents case-in-chief16 paragraph.17 MR . DORF: I would really request that the18 entire report of the Hearing Examiner be entered19 into the record. I think its a fair statement of20 what occurred at the hearing and really what I21 believe to be our case.22 MR . MEANS: There are conclusions in here that23 I believe are not supported by the evidence. The24 facts that she cites I agree are the facts that 9

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1 were presented and uncontroverted - -2 MR. DORF: Yes. Yes.3 MR. MEANS: -- at the closed preliminary4 hearing.5 MR. DORF: I would agree with that. The two6 statements of the cases in chief be entered into7 the record. The conclusions would be those of8 Mr. Greben.9 HEARING EXAMINER GREBEN: All right. Just so I10 can identify where these are. I presume this is11 under the respondents case-in-chief?12 MR. MEANS: Complainants case-in-chief and13 respondents case-in-chief pretty much recites what14 the evidence was. The evidence was not disputed.15 I didnt dispute his evidence. He didnt dispute16 my evidence.17 HEARING EXAMINER GREBEN: Okay. So for all18 intents and purposes -- I mean, what are you19 telling me? Are you telling me that -- which of20 these three people essentially admitted to --21 MR. DORF: I know that I cant put words in22 Richs mouth, so I wont, but it is my23 understanding the respondent acknowledged that24 Louise Guttmanns name was taken from the D-2, but

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1 it said it was an accident.2 MR . MEANS: We dont know that it was taken3 from the D-2, but we had the D-2 and we didnt have4 the name any other place. And so it is a fair5 conclusion, and we have no contest with regard to6 that.7 HEARING EXAMINER GREBEN: Mr. Means, thats8 something for the Hearing Examiner to decide. All9 Im going to ask is that the complainant present10 their evidence, respondent present their evidence,11 and then I will reach the conclusion and put that12 conclusion in my recommendation.13 MR . MEANS: Okay.14 HEARING EXAMINER GREBEN: Its a question of15 how much weight Im going to give to the evidence16 in terms of reliability, veracity, whatever term17 you want to use. And then I will make a conclusion18 and formulate that in my recommendation.19 For the sake of argument, why dont I20 just -- would you like to submit the closed -- the21 Hearing Examiners report in the closed hearing as22 an exhibit?23 MR . DORF: Yes, I would.24 MR . MEANS: I object. I dont object to the



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I facts recited in the Hearing Examiners report, but2 I quarrel with the conclusions.3 HEARING EXAMINER GREBEN: Again, Im not4 assigning any weight necessarily at this time.5 MR . MEANS: You can overrule me.6 HEARING EXAMINER GREBEN: The only reason Im7 suggesting that it be submitted as an exhibit is8 for reference purposes. Im not going to weigh --9 attach any degree of veracity or reliability10 regarding what is contained therein. Its just11 that there is something that can be referred to.12 Thats all Im doing it for.13 Exhibit -- in other words, I will even14 make the suggestion, if you would both agree,15 Complainants Exhibit Number 1 entitled Report of16 Hearing Examiner in the closed preliminary hearing.17 Thats it. Its merely for identification18 purposes, not to assign any degree of weight to it.19 MR . MEANS: Over my objection, if you wish, but20 Im not going to agree to the propriety of two21 sentences or three sentences of the conclusion of22 the Hearing Officer which I think are not supported23 by the evidence.24 MR . DORF: I think what might be appropriate is

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I would request that the report be entered into therecord as an exhibit. I would concur withMr. Means that only the statement of the facts andthe recommendation of the Hearing Officer beadopted as part of the record. And I say thelatter because the order of the Board of ElectionCommissioners officially adopted the recommendationof the Hearing Officer.

MR . MEANS:and that it go

MR . DORF:MR . MEANS:MR . DORF:

recommendati onMR . MEANS: I agreeSMR . DORF: But I do request that the entire

report of the Hearing Examiner be included in therecord as an exhibit.

HEARING EXAMINER GREBEN: Mr. Means?MR . MEANS: I believe that the only thing

properly in evidence are what we agree on whichleave out a couple of sentences in the conclusionof the Hearing Officer. So I object. You canoverrule me.


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That justifiable grounds be foundto a public hearing.Right.I agree.Not the conclusion language, but thehas been adopted.


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I HEARING EXAMINER GREBEN: I understand.2 fIR. MEANS: But I object.3 HEARING EXAMINER GREBEN: I understand that,4 but Im trying to find -- this is why --5 ironically, this is exactly why were having this6 hearing today and why I thought it was necessary to7 go on record. I was trying to find a happy medium8 so that we didnt have an objection.9 But, at this particular point, I10 rightfully, or wrongfully, am going to overrule11 your objection, and Im going to -- Im going to12 allow the Hearing Examiners report in the closed13 preliminary hearing to be admitted into the record14 for merely the purpose of having an object or piece15 of evidence to identify certain part ies or certain16 information that the complainant and the respondent17 may wish to argue for or against.18 So that in combination with what both19 counsels have agreed should -- that this document20 should be used for, I think it is fairly clear that21 the document is being admitted but for very limited22 purposes.23 Now where were we? Mr. Means and24 Mr. Dorf. Mr. Means, I think you need to proceed.



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1 MR . DORF: I think Mr. Means was asking me if I2 was totally finished.3 MR . MEANS: Yes.4 HEARING EXAMINER GREBEN: Structurally,5 say this. Thats the way the hearing -- by6 thats not the way the hearing is conducted.7 complainant -- I can look up the rule, but I8 think its necessary.9 MR. MEANS: This is opening statements.10 HEARING EXAMINER GREBEN: I didnt identi11 as an opening statement. Opening statements

closing statementsoptional I believe.I really dont recallopening statement be given.

MR . MEANS:presented hisand present fu

MR . DORF:table because,and then take i

22 like to see if we can resolve this.23 If Mr. Means is agreeable that the24 statement of facts contained in complainants

le t merule,Thedont

Dfy itand

areInot mandatory. Itscould check the record,it being mandatory that

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butan

Okay.evidencerther eviAnd I wias is myt over.

The question is has heor is he going to come backdence other than rebuttal?11 put all my cards on thewont, if -- le t me finishI apologize, because Id


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1 case-in-chief, the statement of facts contained in2 respondents case-in-chief are accurate and3 sufficient, I have nothing more to present. If4 Mr. Means presents additional facts, then I reserve5 the right to subpoena Mr. Means campaign -- his6 clients campaign staff.7 I am satisfied with the way the facts are8 presented here. I would have no additional9 evidence unless you provide additional facts.10 MR . MEANS: Of course. Okay. Thats fine.

11 HEARING EXAMINER GREBEN: Im going to work off12 the assumption that after you present -- Mr. Means,13 after you present your evidence that --14 MR . MEANS: If I present any, he can answer.15 HEARING EXAMINER GREBEN: Thats right. Or16 which includes his desire to swear in his witness17 to testify, if so be it.18 MR . MEANS: No, no, no.19 HEARING EXAMINER GREBEN: He does not have to20 do that now.21 MR . MEANS: If so be it?22 HEARING EXAMINER GREBEN: If he didnt deem it23 so necessary. Lets cross that bridge if we come24 toit.



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I Mr. Means, all you have to do is present2 your evidence.3 MR . MEANS: I dont have to present any of it.4 HEARING EXAMINER GREBEN: Well, you dont have5 to present the evidence.6 MR. MEANS: Thats right, and then theres no7 rebuttal8 MR. DORF: If Mr. Means is going to withdraw9 his prior statement I believe was for the record10 both in front of the hearing officer and in front11 of the Board of Elections when we had this that12 they acknowledge on Louise Guttmann that there was13 a violation, although it was by accident that there14 was a violation, thats going to be withdrawn, then15 Im going to want to bring everybody in.16 MR . MEANS: I dont want to withdraw that.17 HEARING EXAMINER GREBEN: And to be --18 honestly, you know, to address what you said, you19 said you dont have to present any evidence, I20 wouldnt advise that. I dont think the21 respondent -- its certainly your decision, but if22 you, as the respondent, wish to come in either as23 counsel or your client and not respond to --24 especially, at the point, its reached a public



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1 hearing thats already been determined that the2 complained was filed on justifiable grounds.3 MR . MEANS: We stipulate that its filed on4 justifiable grounds.5 HEARING EXAMINER GREBEN: Okay.6 MR . MEANS: Were ready to take our medicine.7 HEARING EXAMINER GREBEN: And the respondent --8 this is a procedure where both sides are allowed to9 -- Mr. Means, you have gone through this.10 MR . MEANS: I am not required to present11 anything.12 HEARING EXAMINER GREBEN: You are absolutely13 not required, and if you dont want to do so --14 MR . MEANS: Fine.15 MR. DORF: Can we go off the record?16 HEARING EXAMINER GREBEN: Yeah, please.17 (Discussion off the record.)18 HEARING EXAMINER GREBEN: Back on record.19 Pursuant to the conversations we had regarding the20 validity or the value, I should say, of the closed21 Hearing Examiners report in the closed preliminary22 hearing, once again, Im going to ask Mr. Means --23 would you wish to go first?24 MR . DORF: Mr. Means can go.

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I MR. MEANS: Let me try it this way. Im2 suggesting and I believe Mr. Dorf will agree that3 the complainant and the respondents agree that the4 facts in this case are the facts found by and in5 the report of closed preliminary hearing in the6 paragraph, complaints case-in-chief and7 respondents case-in-chief, after which the Hearing8 Officer recommended that justifiable grounds be9 found and that a closed preliminary hearing -- that10 an open hearing be held. Is that stipulated?11 MR . DORF: Yes. We stipulate.12 MR . MEANS: I think that provides the factual13 basis that the hearing officer needs in this case.14 HEARING EXAMINER GREBEN: Okay. And, Mr. Dorf,15 just so were on the record with more than a yes,16 you agree in total with what Mr. Means has just17 said or is there anything else you would like to18 say in response?19 MR . DORF: No, I am in agreement with that.20 HEARING EXAMINER GREBEN: With that being said,21 does anybody want to make closing arguments?22 Theyre not necessary. Its up to you.23 MR . MEANS: Complainant goes first.24 MR . DORF: Thank you, Mr. Hearing Examiner, and



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I I appreciate your patience as we try to work this2 out in an a cordial manner. None of us sitting at3 this table which to be punitive in any way. We4. wish just to see that the election law be5 fulfi l led.6 HEARING EXAMINER GREBEN: May I interrupt?7 Thank you, fir. Dorf, and I would never interpret8 that any of the fine gentlemen here that I work9 with on a regular basis was to be punitive because10 youre all fine gentlemen.11 MR . DORF: Thank you.12 HEARING EXAMINER GREBEN: Pleasant people to13 work with. Please. Please continue.14 MR . DORF: The complainants allege that its15 believed that the three names had been mined from16 its D-2. It appears from the stipulation of facts17 that respondent was unable to find another place18 that the name of Louise Guttmann might have come19 and acknowledged that it may have been by accident20 but that a violation did occur.21 With respect to the other two names, there22 remains a question which has not been resolved.23 However, we are satisfied showing that the24 violation had occur, that the committee has -- the

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I respondent committee has expressed regret on this2 and, as you understand, taken some action against3 personnel involved in it. We believe our case has4 been made. A violation has been made. The5 complaint was justifiably filed and we have nothing6 further.7 HEARING EXAMINER GREBEN: Thank you, Mr. Dorf.8 Mr. Means, please proceed.9 MR . MEANS: And we agree that at least as to10 Louise Guttmann, the complaint was filed on11 justifiable grounds. We can conclude no12 possibility of any source for that name other than13 the D-2.14 As the testimony was in the closed15 preliminary hearing and as is outlined in what we16 have stipulated to, we looked at the D-2 for proper17 purposes because it was the D-2 of an incumbent who18 at that time, at the time we looked at the D-2, we19 believed was running again. And so a traditional20 issue raised in a campaign is where did they get21 their money, local developers, et cetera?22 And then at a later time, it turned out23 that the same people were involved -- who looked at24 that D-2 were involved in fundraising. There were

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three people about whom the complaint was made. Wehave no idea, and there was testimony previouslyand weve incorporated it into the record in thishearing, that we cant show where those other twonames came from. We have them, but we also havethem from the D-2. And so -- and we have nomemory. The only person who did the picking of thenames was the person who was here and testified.

And so we came in to this case essentiallypleading guilty or at least no contest. And aftershe concluded her testimony, we kept her on thepayroll until we got her to testify here, then wedischarged her. In addition, as she testified, wetook steps in the fund-raising operation to makesure that that D-2 was segregated and had a bigsign on it, on that f i le, you know, saying do notuse for fund-raising.

And so we saw no reason at all for an openpublic hearing, but the Board ordered it. So weare here. And we do not contest the facts. We donot contest the finding of justifiable grounds.Were ready to take our medicine because we know,at least as to Louise Guttmann, we cant figure anyway that name could have come but in an improper

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1 way. The other two, we just dont know.2 But in any case, were ready to take our3 medicine; and, under the circumstances, we believe4 that the fine or probation or whatever penalty is5 suggested should contemplate the fact that we knew6 we shouldnt have done it, which is part of the7 stipulation that our fund-raising people knew they8 shouldnt have done it, and they didnt do it9 intentionally, but they apparently did it. And so10 were ready to take our medicine. We believe11 thats the end of the case.12 HEARING EXAMINER GREBEN: At this point in13 time, I will presume that neither parties have any14 further -- anything further to offer in this15 proceeding? Closed hearings be heard and here, I16 will end this proceeding.17 MR . DORF: Thank you.18 MR . MEANS: Thank you.19 (0ff the record at 10:45 a.m.)20 (Which were all the proceedings21 had in the above cause this date22 and time.)2324

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1 STATE OF ILLINOIS)2 ) SS:3 COUNTYOFWI LL45 ANNA M. MORALES, as an Officer of the6 Court, says that she is a shorthand reporter doing7 business in the State of Ill inois; that she8 reported in shorthand the proceedings of said9 hearing, and that the foregoing is a true and10 correct transcript of her shorthand notes so taken11 as aforesaid, and contains the proceedings given at12 said hearing.13 IN TESTIMONY WHEREOF: I have hereunto set14 my verified digital signature this 20th day of15 December, 2010.

Jjt /y~~Illinois Certified Shorthand Reporter

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michele smith for alderman.org breaks election law complaint-chicago.board.of.elections

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