June 12,2009
Director Karen Osborne
Maricopa County Department of Elections
1118. Third Ave #102
Phoenix, AZ 85003
Ms. Osborne,
Pursuant to ALJ Thomas Shedden’s order issued May 26, 2009, as accepted and adopted by Maricopa County
Elections on May 27, 2009, I submit the following information:
‘The final order in this matter provides in part as follows:
IT IS ORDERED that within 20 days of the effective date of the final order issued in this
matter, Mr. Fox shall pay a fine of $450 for the proven violation of ARS § 16-913(B)(.
IT IS FURTHER ORDERED that Mr. Fox shall have 20 days from the effective date of the
final order issued in this matter to provide the County copies of the Records the County
requested in the December 3%, 2008 ORDER REQUIRING COMPLIANCE, NOTICE OF
CIVIL PENALTIES AND HEARING pursuant to ARS § 16-904.
As to the first item, ARS § 16-913(B) includes subsections 1, 2 and 3, but it does not contain a subsection 4,
As to the second item, at { 34 of the December 3, 2008 Order Requiring Compliance, Notice of Civil Penalties
and Hearing pursuant to A.R.S. § 16-924, Mr. Messing requests the production of records pursuant to ARS §
16-904 sections (D), (F), (G), and (H). Those provisions provide as follows:
D. A political committee shall exercise its best efforts to obtain the required information for any
incomplete contribution received that is required to be itemized on a campaign finance report
pursuant to section 16-915, subsection A, paragraph 3. A political committee will not be
deemed to have exercised best efforts to obtain the required information unless the treasurer or
his agent has made at least one effort after the receipt of the contribution to obtain the missing
information by a written request sent to the contributor or by oral contact with the contributor
documented in writing and shall comply with the follo
1. The request must clearly ask for the missing information and inform the contributor that the
committee is required by law to obtain the mailing address, occupation and employer of each
individual contributor and the mailing address and identification number of each political
committee contributor.
2. Any information required for the identification of a contributor received by the political
committee after the contribution has been disclosed on a campaign finance report required
pursuant to section 16-913 shall be reported on an amended report.
F, Unless specified by the contributor or contributors to the contrary, the treasurer shall record a
contribution made by check, money order or other written instrument as a contribution by the
Person whose signature or name appears on the bottom of the instrument or who endorses the
instrument before delivery to the committee. Ifa contribution is made by more than one person
in a single written instrument, the treasurer shall record the amount to be attributed to each
contributor as specified.
G. All contributions other than in-kind contributions must be made by a check drawn on theaccount of the actual contributor or by a money order or a cashier's check containing the name
of the actual contributor or must be evidenced by a written receipt with a copy of the receipt
given to the contributor and a copy maintained in the contribution records of the recipient.
H. The treasurer shall preserve all records required to be kept by this section and copies of all
finance reports required to be filed by this article for three years after the filing of the finance
report covering the receipts and disbursements evidenced by the records.
‘Thus, in sum, each of these subsections describes procedural matters to guide a political committee treasurer in
the performance of his duties. Specifically, subsection D describes what to do with an incomplete contribution,
subsection F describes how to determine the name of the donor and what to do with a single check from multiple
donors, subsection G establishes the requirement that contributions made by check must bear the name of the
contributor, and subsection H defines the length of time that records must be retained.
With respect to A.R.S. § 16-904(D), SCA did not receive any incomplete contributions. In reference to A.R.S. §
16-904(F), SCA did not receive any contributions or donations consisting of multiple donors on a single
instrument, and did not receive any monies for the purpose of influencing an election, With respect to ARS. §
16-904(G), all of SCA’s donations were made by check or were deposited into the SCA account by the donor
using the SCA account number. No receipts were issued. Finally, in reference to A.R.S. § 16-904(H), I shall
discuss that provision below.
It is my belief that A.R.S. § 16-904(B) requires the treasurer of a political committee to record the names,
addresses and occupations of all contributions. However the County did not request the records pursuant to
subsection E in its compliance order. While it is possible that the reference to the nonexistent ARS § 16-
913(B\4) and the omission of ARS § 16-904(B) in the compliance order’s request for records are errors, this is
the order that was accepted and adopted by Maricopa County Elections as certified by the decision signed by
\da Weedon, Director Designee, on May 27, 2009. The Department of Elections had the opportunity to
modify or reject the ALJ's order, but instead, chose to accept and adopt it; therefore, this is the order to which I
am complying with,
Enclosed please find a personal check in the amount of $450. Despite the non-existence of ARS § 16-
913(BY(4), the Accepted Order still requires a payment in this amount, and 1 wish to comply with the Order.
However, as stated herein, there are no records to create or produce in reference to ARS § 16-904, subsections
D,F,andG.
With respect to A.R.S. § 16-904(H), that subsection uses language that is very difficult to retroactively apply. 1
have not filed campaign finance reports, nor have I been ordered to, and because the time frame for records
retention begins with the filing of a campaign finance report, it is unclear to me why this subsection was
included in the demand for records. If the intention was for SCA to file campaign finance reports, this intention
has not been communicated, and even if SCA did file a campaign finance report, the three-year retention period
would not begin until then. The resolution sought for the alleged failure to file campaign finance reports was
not to file the missing report, but for a fine of $450. The enclosed check should settle this portion
While it has not been requested or ordered according to my understanding, | assume that it is the intention of
County Elections to discover the names of the donors to SCA, and although I have complied with the final order
in this matter, | would be willing to meet and discuss with you the proper method for doing so. My appeal in
this matter has never been due to a desire to keep election contributors a secret; it was due to the outrageous
fine, primarily, and a desire to maintain the privacy of people who were completely unaware of SCA’s donation
to the Republican Party. A recent op-ed piece in the Arizona Republic entitled “Bankrollers of creepy attack ads
to be revealed” (May 28, 2009) illustrates the potential damage and libelous newspaper articles that will likely
be written in the event the names of SCA’s donors are released to the public.It is the improper and unfounded conclusion that SCA donors paid for “creepy” attack ads that requires
particular privacy in this matter, not a desire to avoid the lawful public disclosure of elections contributions.
If I can be allowed to provide the names to you of those who gave money to SCA privately, it will be obvious to,
you that I have been telling the truth the entire time. Specifically, SCA is not a political committee and did not
receive any contributions made for the purpose of influencing an election and no publie disclosure is necessary
or required beyond what has already occurred. I would look forward to that opportunity.
While there are several legal and factual grounds on which to appeal this case to the Superior Court, | would
prefer to conclude this matter to the satisfaction of everyone involved, going beyond what has been required in
the final order. If consideration can be given to those who are involved only because they innocently sent
money to a bank account almost a year or more prior to the election, I believe we can easily do 50.
‘That being said, please treat this letter as compliance with the Order adopted by the Maricopa County Elections
Department.
Ifyou believe that this response is deficient in any way, please contact me at your earliest convenience.
Very truly yours,