"A Practical Guide to Registering an Independent Expenditure Committee for New York State Elections”

August 17, 2012
By Richard Winsten, Thomas Hartnett, and Deanne Braveman 

Labor Press 

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Citizens United v. Federal Election Commission, decided by the United States Supreme Court in 2010,  expanded the ways that unions can participate in elections.  The Court found that restrictions placed on unions and corporations participating in independent expenditures violated the First Amendment’s protection of free speech. Therefore truly independent expenditures cannot be limited in amount as campaign contributions can be limited.  The court, however, has upheld disclosure requirements for permissible independent expenditures in a line of cases. As a practical matter this allows unions to engage in unlimited spending for campaign activity (i.e. spending to support or oppose a candidate), subject to disclosure, where the candidate did not authorize, request, suggest, foster or cooperate with the unauthorized committee.

This article is meant to serve as a practical, nuts and bolts guide for unions interested in establishing and registering an independent expenditure campaign in New York State. Independent expenditures in New York State differ from those in federal elections because they are still subject to the contribution limits applicable to New York State elections as well as those limits placed on contributors. Of course, these limits are not explicit in the NYS election law and regulations and an interpretation can evolve as cases are presented. Also, the interpretation above may present constitutional issues.  Because the State law is newly developing in this area and because New York State Law has severe criminal and civil penalties for missteps with respect to unauthorized committee contact with candidates and campaign, we strongly urge you to consult legal counsel before venturing into these waters.

Unfortunately, as we are seeing in the current Presidential and Congressional campaigns opponents of organized labor have jumped into independent expenditure with both feet. Union friendly candidates are in danger of being overwhelmed by massive negative independent expenditures sponsored by billionaires, anti-union corporations and right-to-work front organizations. Unions cannot afford to sit on the sidelines; but they must participate in strict observance of the New York State laws and rules. Legal caution and prudence must be a priority for unions engaging in independent expenditure campaigns.   

UNAUTHORIZED COMMITTEES   

Independent expenditure committees in New York State are called “unauthorized committees.”  These committees are different from the typical politicalaction committees (PAC) because of the strict requirement that the unauthorized committee not coordinate with a candidate. Again, a candidate cannot authorize, request, suggest, foster or cooperate with an unauthorized committee in any of its activities. 

An unauthorized committee can engage in the activities usually engaged in by PACs other than by making contributions to candidates. They can run advertisements for or against candidates, reach out to voters, etc. These unauthorized committees can use what are commonly thought of as electioneering words such as support or oppose candidate x. They are not limited to non-partisan voter participation or issue oriented messages.  Unauthorized committees must comply with all New York State laws related to registration of the committee and reporting of receipts and spending and activities.  

Unlike independent expenditures in federal elections there are contribution limits on NYS unauthorized committees. The NYS BOE has interpreted the law to apply contribution limits for the primary and general elections of statewide and legislative elections to unauthorized committees. Contribution limits for these elections are set each cycle by the BOE and are available on their website.  Unauthorized committees are subject to these limitations as well as those placed on the contributor. Maximum contributions to an unauthorized committee are based on what elections the unauthorized committee is registered with the BOE to participate in.  If an unauthorized committee is registered to participate in three senate primaries a contributor could give the maximum amount for three senate primaries. Where the contributor has reached the limit of the amount they can give for all elections an unauthorized committee cannot accept more than this limit.

UNAUTHORIZED COMMITTEE REGISTRATION

Registration of unauthorized committees for state elections must be completed before any receipt of funds or spending by the committee. Participants in local elections must also register with the required entity (i.e. New York City Board of Elections).The NYC Campaign Finance Board recently issued rules that purport to define independent expenditures in NYC campaigns and mandate disclosure of spending. These rules are now more specific than NYS election laws and rules. 

This article will focus on state elections (Governor, Lieutenant Governor, Attorney General, Assembly and Senate) and the registration and filings required to be completed with the New York State Board of Elections (BOE). Registration must be done within five days of picking a treasurer and a depository bank.   

Two forms are necessary to register an unauthorized committee. Form CF-02 is the Committee Registration Treasurer and Bank Information form.  When filing this form for a new registration you must indicate what level of government the unauthorized committee will be working on (state or local campaigns). In Section A the name of the committee as well as any acronym associated with it are indicated. Section B asks for the committee type, in the case of an unauthorized committee you would report “9 - unauthorized committee”.

Section C requires information on the treasurer of the unauthorized committee. The person designated here will be individually legally responsible for completing the required filings and ensuring that information is correct on these filings. Personal information for the treasurer such as name, address, mailing address and phone numbers are required. The form asks for the social security number of the treasurer, reporting this information is optional.

Section D requires a depository/bank to be designated. The bank account does not have to be opened prior to registration. Some banks require proof of registration with the BOE prior to opening an account for an unauthorized committee. You must report the bank and the branch you intend to use on your registration. The bank must be licensed to do business in New York and the branch you use must be located in New York State. 

In order to open the bank account for your unauthorized committee you will need a tax id number from the Internal Revenue Service (IRS). The number you need is an “employer identification number” commonly referred to as an “EIN.” This number can be applied for online or by telephone. If you apply online you will receive your number immediately.     

The remainder of the CF-02 requires you to list which elections the unauthorized committee will be working on. Information required includes the candidates to be supported or opposed and the ballot issues to be supported or opposed. Anyone other than the treasurer who is authorized to sign checks must be indicated as well. When completed the form is signed by the treasurer.   

The second form required for registration of an unauthorized committee is a CF-03. This  form designates the committee authorization status. An unauthorized committee would fill out section B of this form indicating that the committee is not authorized by the candidate.  You must include the date of election, office/district, and the candidate’s full name. This form is signed by the treasurer and must be notarized. Both forms must be sent to the BOE with original signatures.

Upon receipt of the forms by the BOE they will be reviewed. If the forms are complete a packet will be issued to the treasurer and mailed to the mailing address provided on the CF-02 form. The usual turn around time is about a week but can be longer, particularly around busy times for the BOE (reporting periods and elections). Your registration packet will contain your filer id number and information on required reporting and filings. You may not spend or receive money until you have received this information acknowledging your registration.

AMENDMENTS   

Amendments to both forms are required when there are any changes to information covered by the form. When amending either form be sure to provide your filer id number.  CF-02 should be amended when there are any changes to contact information for the treasurer or any changes on contact information for individuals authorized to sign checks. An amended CF-03 form is necessary when there are changes to the candidates that your unauthorized committee will be supporting or opposing. When amending the CF-03 to add an election that your unauthorized committee is working on you must list all elections that the committee is working on. It is not sufficient to submit an amendment containing only the new election. When you make changes to the elections your unauthorized committee is working on you will only need to amend the CF-03 and submit with the original signatures of the treasurer and the notary.

REQUIRED REPORTING AND FILINGS 

There are two types of filings associated with unauthorized committees: periodic filings and election related filings.  Both types of filings require you to report activities of the committee related to receipts and expenditures. There are two periodic reports due in January and July of each year. Election related filings include a 32 day pre election filing, 11 day pre election filing, and a post election filing (10 day for primary and 27 day for general election).  Post election filings must include copies of campaign materials purchased or produced. Originals are not required, but pictures of buttons or signs and transcripts of radio and television advertising are acceptable.  In addition there are 24 hour filings that require a committee to report any contribution or loan over $1,000 within 24 hours of receipt. These filings are required after the 11 day filing cut off until the election.

Committees working on campaigns for state office must complete these filings electronically. The BOE has an electronic filing system (EFS) that committees working on state elections must use. The information required by these filings is similar to that on form CF-01. The software doesn’t directly correspond with the form, but the form can help you to keep track of items that need to be reported. Each year the BOE releases a calendar specifying the due dates for each filing that can be found on its webpage. Each period covers the day after the cut off date of the previous report up to and including the cut off date for the report you are making.

Filings are required even when your unauthorized committee has no receipts or expenditures to report. An unauthorized committee is not allowed to file an “in-lieu-of statement” but may file a “no-activity report” (form CF-18) in this case. All filings must be completed, even if there are no receipts or expenditures, until the committee is terminated. The treasurer is responsible for the completion of all reports as well as termination of the committee when necessary. If the treasurer for your unauthorized committee changes you must contact the BOE and complete the required paperwork to change the treasurer. 

Unauthorized committees can be used by unions to effectively participate in elections. Unions must be careful to not coordinate with the candidate.  Unauthorized committees that coordinate with a candidate run the risk of being determined to be authorized which would apply contribution limits to them on what they could accept. An unauthorized committee found to be coordinating with a candidate can face huge fines and potential prosecution.

About the Authors

Richard D. Winsten is Co-Chair of Meyer, Suozzi, English & Klein, P.C.’s Government Relations practice, based in the New York State capital of Albany. Thomas F. Hartnett is Co-Chair of the firm’s Government Relations practice and a part of the firm’s Labor practice in the Albany office. Deanne M. Braveman is an Associate, where she also practices with the firm’s Government Relations group in Albany.  

All NYS BOE forms mentioned in this article, as well as the Campaign Finance Handbook and guides to using the Electronic Filing System, can be found at this website: http://www.elections.ny.gov/CampaignFinanceForms.html

Information on Employer ID Numbers, including where to apply for free online, can be found by going to www.irs.gov and searching for “Employer ID Numbers.” 

The Campaign Finance Filing Calendar can be found on the NYS BOE Campaign Finance website located athttp://www.elections.ny.gov/CampaignFinanceForms.html

U.S. Department of Labor: Office of Labor-Management Standards (OLMS)

Protecting labor: How does the UFT measure up?

Office of Labor-Management Standards (OLMS)

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On This Page Contents Unions covered by the election provisions of the acts Who must be elected and how often Nomination procedures Campaign rules Election procedures Protesting elections Relation of the bill of rights to the election provisions Application of other laws Election procedures checklist Electing union officers by mail: Suggestions and safeguards Excerpts from the Labor-Management Reporting and Disclosure Act Of 1959, as Amended (LMRDA) Excerpts from title VIl of the Civil Service Reform Act of 1978 — Federal Service Labor-Management Relations

Electing Union Officers

Contents

1. Unions covered by the election provisions of the acts

Title IV of the Labor-Management Reporting and Disclosure Act of 1959, as Amended (LMRDA or the act) establishes election procedures that must be followed by all unions covered by the act, regardless of whether their constitution and bylaws so provide. The act does not spell out detailed procedures; rather, it sets minimum requirements. Beyond this, elections are to be conducted according to the constitution and bylaws of each union, as long as the union's rules do not conflict with the provisions of the act.

The LMRDA applies primarily to unions that represent employees in private industry. Under sec. 1209 of the Postal Reorganization Act, unions of U.S. Postal Service employees are also subject to the LMRDA. Most unions of other Federal Government employees are subject to the standards of conduct provisions established in 5 U.S.C. 7120 by the Civil Service Reform Act of 1978 (CSRA). Regulations implementing these provisions have been issued by the Assistant Secretary for Employment Standards in Parts 457-459 of Title 29 of the Code of Federal Regulations (29 CFR Parts 457-459). Sec. 458.29 of the regulations applies the substantive election requirements of title IV of the LMRDA to unions subject to the CSRA, but the regulations establish a different method of enforcing these substantive requirements. (For a more detailed discussion of the unions that are covered by the CSRA, see the pamphletRights and Responsibilities under the LMRDA and the CSRA or Reports Required under the LMRDA and the CSRA.)

The election requirements are not applicable to unions that are subject to neither the LMRDA nor the CSRA, such as unions composed entirely of employees of States and subordinate governmental units such as counties and cities.

The election provisions in title IV apply to national and international unions, except federations of these unions such as the AFL-CIO; to intermediate bodies such as general committees, conferences, system boards, joint boards, or joint councils; and to local unions. These provisions, however, do not apply to State and local central bodies, which are excluded from coverage under the act.

A "mixed" local-one that contains both covered and noncovered members-is subject to the act. An international or national union or an intermediate body that has any mixed or covered locals is likewise subject to the act. Further, while the election requirements generally do not apply to a local union composed entirely of government employees not covered by the act, there is an important exception: When such a local participates in the election of officers of its parent union which is subject to the election requirements, then the title IV election procedures must be followed. The same is true in the case of the election of delegates who elect officers of a national or international union or of an intermediate body covered by the act. A local union composed exclusively of city maintenance employees, for instance, would be required to elect, by secret ballot, delegates to a convention of its international union who participate in the election of the international officers, if the international is subject to the act.

Although the act is limited to the activities of persons and organizations within the territorial jurisdiction of the United States, an international union or intermediate body is not exempt from requirements of the act by virtue of the participation of its foreign locals or foreign membership in its elections. For example, votes received from Canadian members in referendum elections held by an international union with headquarters in the United States must have been cast under procedures meeting the requirements of the act, and delegates from Canadian affiliates participating in conventions where officers of the international body are to be elected must have been elected by secret ballot.

2. Who must be elected and how often

Offices to Be Filled by Election

The act requires that all officers be elected. But what does "officer" mean? The act defines the term as "any constitutional officer, any person authorized to perform the functions of president, vice president, secretary, treasurer, or other executive functions of a labor organization, and any member of its executive board or similar governing body." A constitutional officer is any person holding a position identified as an officer by the constitution and bylaws of the union. All constitutional officers must be elected, even if they do not perform any executive functions. The major union offices (the president, vice president, secretary, treasurer, and members of executive boards or similar governing bodies) must be filled by election. In addition, any person who has executive or policymaking authority or responsibility must be elected even though he may not occupy a position identified as an officer position under the union's constitution and bylaws.

Most shop stewards, for example, are not required to be elected because they normally do not exercise executive functions. However, a shop steward would qualify as an officer (and thus become subject to the act's election requirements) if he were so designated in the union's constitution or if, as a steward, he were a member of the union's executive board. In many cases the business agent or business representative of a union has duties that result in his position falling within the definition of "officer." For example, if he has primary responsibility for the control and management of the union's funds and fiscal operations, he would be considered an officer for purposes of the act.

In addition, any delegate who votes for officers of a national or international union or an intermediate body, such as a conference or a council, must be elected by secret ballot among the members in good standing of the union he represents. If the constitution and bylaws state that one of the functions of a particular elected officer is to be a delegate who votes for officers, a special election of that officer to be a delegate is not necessary if the officer has been elected by secret ballot among the members in good standing of the union he represents.

While all union officers, including members of executive boards or similar governing bodies, must be elected, the act provides a choice for some types of unions between direct secret ballot elections by the members and indirect elections by delegates or officers representing the members.

Thus, officers of a local union must be elected directly by secret ballot among the members in good

standing. Officers of a national or international union, on the other hand, may be elected either by secret ballot among the members in good standing or at a convention of delegates chosen by secret ballot. Officers of an intermediate body may be elected either by secret ballot among the members in good standing of the constituent unions, or by officers of the constituent unions who represent the members and who have been elected by secret ballot.

Professional and other staff members of a union need not be elected if they do not determine policy but are employed only to carry out the union's policy decisions. These persons are subject to the control and direction of the elected officials, and the act does not require such professional or other staff members to be elected.

The act does not require elections for union officials who do not perform executive functions, are not officers under the constitution and bylaws, and are not members of the executive committee or similar governing body of the union. However, the union's constitution and bylaws may require that such positions be filled by election. In this case, the procedures of title IV need not be followed since the holders of these kinds of positions are not considered officers under the act.

Trusteeships-A Special Case

When a union is under trusteeship, it is unlawful under sec. 303 of the act and 29 CFR 458.27 to count votes of delegates of the trusteed union in any convention or election of officers of the parent international union or an intermediate body unless the delegates have been chosen by secret ballot in which all members in good standing of the trusteed union were eligible to vote.

The act does not require that a trusteed union be represented by delegates at a convention of its parent union. However, it may send delegates with full voting powers if they have been elected by a secret ballot election in which all members in good standing were eligible to vote. The trusteed union may also send delegates not elected by secret ballot, but it would be unlawful to count votes cast by these delegates in any election of the parent union officers or on any issue or other resolution presented to the convention.

When a regular election or an election for the purpose of terminating the trusteeship is held during the trusteeship period, the election safeguards of title IV must be applied.

Frequency of Elections

The maximum period allowable between regular elections of officers is stated explicitly in the act. Elections must be held as often as required by the union's constitution and bylaws, but-

• At least every 5 years in all national and international unions;
• At least every 4 years in all intermediate bodies such as general committees, system boards, joint boards, joint councils, and conferences; and
• At least every 3 years in local unions.

These periods are measured from the date of the last election. These requirements do not prohibit incumbent officers from being reelected at the end of their terms of office.

Unexpired Terms of Office

Frequently during the term of office, a union official will resign or a vacancy will occur for some other reason, such as the death of the incumbent. The act is silent on the specific point of what should be done in filling the unexpired term of office. A union may therefore fill such a vacancy by using the procedure provided in its constitution and bylaws. The procedure should comply with the general standards of union procedure set forth in title I (the bill of rights) of the LMRDA or 29 CFR 458.2. The provisions of sec. 504 of the LMRDA, which prohibits persons convicted of certain crimes from holding office for up to 13 years after their conviction or release from imprisonment, also apply to the filling of vacancies, as do the prohibitions of 29 CFR 458.36 for unions subject to the CSRA.*

Questions and Answers

May a local union elect its officers every year? Yes. The act specifies the longest time intervals permitted between elections. They must be held more often if this is provided for in the union's constitution and bylaws.

May the executive committee appoint delegates to the international convention when one of the delegates' duties is to vote in the election of international officers? No. They must be elected by secret ballot among the members in good standing.

Must shop stewards be elected by secret ballot? Not ordinarily, but they must be elected by secret ballot if they exercise executive functions within the local, if they are designated as officers by the constitution and bylaws, or if they serve on the executive board or a similar governing body.

Must the chief shop steward be elected by secret ballot? If he is a constitutional officer or a member of the executive committee by virtue of being chief shop steward, or if he exercises executive functions within the local, he must be elected by secret ballot.

Must the sergeant-at-arms be elected by secret ballot? If the holder of this position is designated an officer by the constitution and bylaws, if he performs any executive functions, or if he is a member of the local union's executive committee by virtue of being sergeant-at-arms, he must be elected by secret ballot.

May the officers of a local be authorized to represent the local at conventions of the parent body by virtue of their election to office, or must the delegates be elected specifically for each convention? The constitutional duties of an officer may include representing the local as a delegate to conventions of the parent body. When this is the case and the officer has been nominated and elected in accordance with the requirements of title IV, his election as an officer fulfills the requirement that convention delegates be elected by secret ballot, and no separate election as a delegate is required. Ballots used in the election for such an officer should contain a statement to the effect that the officer, by virtue of his election to office, will serve as a convention delegate.

Summary

• All officers of local unions must be elected by secret ballot among the members in good standing.
• All members of executive boards or similar governing bodies of local unions must be elected by secret ballot among the members in good standing.
• All delegates to conventions of national or international unions or to intermediate bodies must be elected by secret ballot among the members in good standing if the delegates are to vote in the election of officers of the national or international unions or intermediate bodies.
• All officers of national or international unions and of intermediate bodies must be elected either directly by secret ballot among the members or indirectly through representatives elected by secret ballot.
• Professional and other staff members who do not determine policy and who are subject to the control of elected officials need not be elected.
• Officers must be elected at least every 3 years in local unions, at least every 4 years in intermediate bodies, and at least every 5 years in national and international unions.

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ILO Decision May Offer Opportunity for City Labor

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August 16, 2012
By Marc Bussanich, LaborPress City Reporter

A November 2011 International Labor Organization decision ruled, after the Transport Workers Union Local 100 filed a complaint with the ILO in November 2009 after the union struck in December 2005 and was heavily fined, that New York’s Taylor Law banning and penalizing public worker strikes violates fundamental workers’ rights protected by international law. With 200,000 city public workers without contracts, in some cases over five years, the ILO decision would seem to have presented the city’s public sector unions the economic leverage they have desperately needed to win new contracts.



The ILO is a tri-partite agency of the United Nations made up of governments, employers and unions that was founded in 1919 as part of the Treaty of Versailles that ended the devastation and horrors of World War 1 to “reflect the belief that universal and lasting peace can be accomplished only if it is based on social justice.”

According to Dom Tuminaro, an adjunct professor at the Brooklyn College Graduate Center for Worker Education, the U.S. is one of over 100 countries that have ratified the ILO’s Constitution, but out of 189 ILO Conventions, the U.S. has ratified only two.

Numerous unions around the world have filed complaints with the ILO when they believed that their governments have improperly interfered with their ability to organize, collectively bargain or take concerted action such as a strike. For example, when the Indian government fired 200,000 public school teachers for going out on strike it was urged by the ILO to rehire all of them, and the Indian government complied.

The U.S. track record on complying with ILO recommendations has been a mixed bag. When TWU Local 100 and its international union filed a complaint with the ILO in November 2009 on the grounds that New York’s Taylor Law violates two core conventions that are most focused on workers’ rights to organize and bargain, freedom of association and the right to concerted action such as the strike (Convention Nos. 87 and 98), the U.S. government’s response to the TWU complaint was that the “United States’ unique, decentralized and diverse system of government…establishes a federalist regime in which the national Government exercises only those powers the Constitution expressly affords it. All other powers are reserved to the 50 states or to the people themselves.”

Thus, the U.S. government hasn’t ratified Convention Nos. 87 and 98, while other countries have. The U.S. is a signatory to the ILO Constitution, but it always claims in response to ILO complaints brought forward by unions that it doesn’t have the necessary authority to interfere in the proceedings or disputes between public sector unions and the states where they represent working members.

Although the U.S. hasn’t ratified the two core workers’ rights Conventions, Tuminaro notes by virtue of signing the ILO Constitution, the U.S. has essentially agreed to the principles defined in Convention Nos. 87 and 98.

“When a country becomes a member of the ILO, it signs onto certain fundamental principles [freedom of association, etc.]. The fact that the U.S. didn’t sign onto Convention Nos. 87 and 98 doesn’t mean that the U.S. isn’t bound by those core principles.”

Indeed, the ILO itself says, “Even if they [Member States] have not ratified the Conventions in question, (they) have an obligation arising from the very fact of membership in the Organization, to respect, to promote and to realize, in good faith and in accordance with the Constitution, the principles concerning the fundamental rights which are the subject of those Conventions…”

Tuminaro also noted that when critics say that the U.S. is not bound by the ILO’s recommendations because it hasn’t ratified Convention Nos. 87 and 98, the U.S. government’s ratification by the Senate in 1994 of the International Covenant on Civil and Political Rights (ICCPR), which expands upon the core principles of the two conventions, makes the treaty the law of the land and therefore binds the states to the treaty based on the Supremacy clause of the U.S. Constitution.

Certainly, in response to the TWU complaint that provisions of the Taylor Law [compulsory arbitration which negates the union’s ability to strike] “constitute a serious infringement of Convention Nos. 87 and 98,” the ILO said:

“Noting that the Government’s reference to the Federalist system of constitutional government, the Committee nevertheless requests the Government to take steps aimed at bringing the state legislation, through the amendment of the relevant provisions of the Taylor Law, into conformity with freedom of association principles so that only (1) public servants exercising authority in the name of the state and (2) workers of essential services in the strict sense of the term may be restricted in their right to strike.”

Essentially, the recommendation makes it clear that the vast majority, aside from the Governor, State Comptroller and District Attorney and their staffs, of public workers in New York should be able to exercise the right to strike.

However, since the November 2011 ILO decision regarding the TWU’s complaints, Tuminaro said that there hasn’t been a unified response from the city’s public unions, although 200,000 members are working without contracts.

Tuminaro suspects that because the city unions have long been accustomed to working within a certain framework, such as the legislative process to get what they want, it may be difficult for the unions to think or do things outside the box.

“It could be that the city public sector unions are reluctant because they feel like they're on the defensive and they see what’s happening across the country as collective bargaining is under attack,” said Tuminaro.

Also of potential concern to the unions is that if they push for the right to strike as a result of the ILO decision, then the business community, using the same legislative process as the unions to get what it wants, might say that if the unions are able to strike it might demand an end to the Triborough Amendment, a New York Court decision that the unions deem favorable because the amendment at least preserves the provisions of the previous contract when the two sides can’t agree on a new contract.

As the Taylor Law is the legal regime governing public sector bargaining in New York, the decision by the ILO in November 2011 is “no small matter,” said Tuminaro. At the very least, a discussion can begin about the seemingly golden opportunity presented to New York’s public sector unions. marc@laborpress.org