DISTRICT OF COLUMBIA

BOARD OF ELECTIONS

)
Elissa for DC, )
and )
Elissa Caren Silverman ) Administrative Hearing Order No. 22-028
Petitioners, )
) Review of OCF Order in OCF 2022 FI 006
v. )
)
The Office of Campaign Finance )
Respondent. )

RESPONDENT’S MOTION FOR RECONSIDERATON

Respondent, the Office of Campaign Finance moves the Board of Elections for the District of
Columbia pursuant to 3 DCMR §429 to reconsider its January 6, 2023, Memorandum Opinion
and Order reversing the Office of Campaign Finance’s (OCF) October 27, 2022, Order in OCF
Docket No. 2022-FI-006.

Supporting Memorandum of Law accompanies the motion for reconsideration and is attached
hereto.

Dated: January 20, 2023

Respectfully submitted,

/s/ William O. SanFord

William O. SanFord, General Counsel

Office of Campaign Finance
1015 Half Street SE Suite 775
Washington, DC 20003
 DISTRICT OF COLUMBIA
BOARD OF ELECTIONS

)
Elissa for DC, )
and )
Elissa Caren Silverman ) Administrative Hearing Order No. 22-028
Petitioners, )
) Review of OCF Order in OCF 2022 FI 006
v. )
)
The Office of Campaign Finance )
Respondent. )

RESPONDENT’S MEMORANDUM OF POINTS AND AUTHORITIES

IN SUPPORT OF THE MOTION FOR RECONSIDERATON

In moving for reconsideration of the Board of Election’s (Board) January 6, 2023,

Memorandum and Order reversing OCF’s October 27, 2022, Order in OCF Docket 2022-FI-006,
the OCF contends that the Board committed a reversable error by imposing the Burden of Proof
on the Respondent (OCF), instead of the Petitioners (Elissa for DC and Elissa Silverman).

3 DCMR §424.1 provides that “the party who asserts the claim bears the affirmative duty
of establishing the truth of the assertion.” In the instant case, the Petitioner requested a De Novo
Hearing based upon their assertion that the OCF order was issued in error and abridged
Petitioners’ First Amendment and Due Process rights. Accordingly, in adjudicatory proceedings,
the applicant for a de novo proceeding has the burden of proof. Despite the fact that § 2.509(b) of
the District of Columbia Administrative Procedure Act provides “In contested cases, except as
may otherwise be provided by law, other than this chapter, the proponent of a rule or order shall
have the burden of proof.” The Board’s rule set forth above clearly establishes that the party
asserting the claim bears the burden of proof.

As the Respondent explains below, the only occasion when the Board has imposed the
Burden of Proof on the Office of Campaign Finance (OCF) following the issuance of an
Administrative Order, occurred when OCF issued an order requesting that the Board make a
referral to the Office of the US Attorney for the District of Columbia for possible criminal
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charges. The underlying purpose of the pertinent Statute is to ensure that justice and fundamental
fairness are achieved.

In addition, the Board did not impose the burden of proof on the OCF during the
Silverman v. OCF Due Process hearing on November 4, 2022. Nor did the Board impose the
burden of proof on the OCF during the Kathy Henderson v. OCF hearing, Administrative Order
No: 22-027, Landry et al v. OCF hearing, Administrative Order No: 20-027 in which the
Petitioners were facing fines in the amount of $4,000.00. Specifically, during the Landry et al. v.
OCF hearing, the Board’s General Counsel informed the Petitioner on the record that the
Petitioner has the burden of proof. Finally, in all aspects of legal proceedings, the burden of
proof is on the Petitioner, not the Respondent. Thus, the Board’s application is fatally flawed.

While the Board serves as an appellate body for the OCF and the Board of Elections, the
Board’s decision does not resolve the administrative complaint which precipitated the
investigation that was conducted by the OCF because restrictions on the expenditure of public
funds under the Fair Elections Act require a greater degree of scrutiny and the Board failed to
provide an interpretation of the regulations that addresses the contested issues that will
undoubtedly arise from this decision. Thus, the Board’s order will severely undermine Campaign
Finance in the District of Columbia and the Fair Elections Program in particular, by diminishing
the enforcement authority of the OCF to an extent that the agency cannot effectively safeguard
public funds.

The Board erroneously concluded that the OCF’s order determined that the violations
committed by the Petitioner were due to the polling conducted when in reality the violations
cited in the OCF’s order were a result of the use of the polls to alter the outcome of the
Democratic Primary Election in Ward 3. While the Petitioner has asserted that the polls were
conducted to enable her to make an informed decision regarding whom she would endorse, she
went beyond that stated goal and used the poll results to engage in discussions with two
candidates regarding vote splitting and those candidates withdrew and endorsed the same
candidate the Petitioner endorsed . Moreover, Petitioner failed to inform one of the two
candidates who subsequently withdrew from the Democratic Primary Election, that she was
actually polling higher than the candidate the Petitioner endorsed in one of the polls.

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 The Board’s reliance on the Petitioner’s three alleged reasons for conducting the polls is
clearly erroneous because they do not meet any objective standard for the expenditure. Taken in
sequence, the Petitioner provided the following justifications:

1. She wanted to endorse a winning Ward 3 progressive candidate;

2. She wanted to support a candidate who could defeat the DFER endorsed
candidate; and
3. She wanted to test the usefulness of a cheaper automated polling service.

None of the above noted reasons are credible justifications for the Petitioner’s activity.
The Petitioner’s theory that endorsing a candidate who failed to capture the Democratic
Nomination for Ward 3 Councilmember would adversely impact her own At Large campaign is
not plausible because by her own admission, without the withdrawal from the campaign by
candidates Bergman and Duncan, it was unlikely that based upon the Petitioner’s poll that
candidate Frumin would have defeated candidate Goulet.

Additionally, the Petitioner’s claim that she wanted to support a candidate who could
defeat the DFER endorsed candidate also fails the credibility test because if the Petitioner was so
certain about the outcome of that contest, why did she feel a need to discuss vote splitting with
the 2 candidates whom she chose not to endorse.

Finally, the testing of a cheaper automated polling service falls far short of justifying the
expenditure, especially in view of the fact that polling was not related to the Petitioner’s own At
Large campaign and the actual results were not accurately disclosed to at least one candidate.

The Board’s adoption of the Petitioner’s self-serving statements without applying an

objective standard fails to justify the reversal of OCF’s order because no evidence was presented
to substantiate any of the Petitioner’s alleged reasons for the polls. Even when viewed in the
light most favorable to the Petitioner, the Board’s conclusions lack justification because the
Board failed to closely examine how the Petitioner used the poll results. In the instant case, the
Petitioner went far beyond her stated reasons for the poll and used the results to manipulate the
outcome of an election in which she was not on the ballot, involving a political party she is not
affiliated with and in a ward where she does not reside. Therefore, the Board failed to examine
the totality of the circumstances which culminated with separate discussions between the

3
Petitioner and the two FEP candidates she did not endorse (Bergman and Duncan) regarding the
dangers of vote splitting where the poll results projected as the winner the candidate with whom
she did not align, and did not want to see as the nominee for the Ward 3 Council Seat, and
intimated to Bergman and Duncan, a candidate that they would also be unable to support.
Moreover, after their discussion with the Petitioner, candidate Duncan withdrew and candidate
Bergman followed suit and also dropped out of the contest one week before the election,
although they both had achieved ballot access and received a combined amount of over
$300,000.00 in public financing.

The Board’s failure to discuss what exactly the Petitioner did after receiving the polling
results has enabled the Petitioner to remain unaccountable for the expenditure of public funds for
which there is no evidence of a connection to the campaign through which the Fair Elections
certification was received. As the Respondent’s counsel explained during the hearing on
December 12, 2022, the Respondent cannot effectively fulfill its obligations as a regulatory and
enforcement agency with responsibility to educate and inform members of the public without the
Board providing a clear analysis of matters, they decide. We submit that the expenditure of
campaign funds must not be viewed in a vacuum when determining whether the expenditure
made did in fact support the election of a candidate for office. Simply stated, the Board did not
explore beyond the candidate’s engagement of the poll.

While the Board completely misread OCF’s order and concluded that OCF’s position was
that the polls alone represented the violation, OCF opined that the violation occurred because the
polls were neither issue oriented nor directly or indirectly related to a Fair Elections candidates’
Independent At Large campaign. Additionally, neither the Board nor the Petitioner explicitly
described how the polls were related to the Fair Elections candidate’s At Large campaign.

Finally, the standard for reversal of Administrative Orders issued by an agency is a

finding that the Order’s issuance was arbitrary and capricious. In the instant case, there is no
evidence that OCF’s issuance of the order falls within that category.

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 CONCLUSION

In view of the foregoing and information included in the case files, the Respondent
respectfully requests that the Board reconsider its January 6, 2023, Order and reinstate OCF’s
October 27, 2022, Order.

Dated: January 20, 2023

Respectfully submitted,

/s/ William O. SanFord

William O. SanFord, General Counsel

Office of Campaign Finance

CERTIFICATE OF SERVICE
THIS IS TO CERTIFY that a true copy of the Respondents Motion for Reconsideration and the
Memorandum of Points and Authorities in support of the Motion for Reconsideration have been
served on Terri Stroud via electronic mail at Tstroud@dcboe.org, Elissa Silverman, Robert Price
and Jason Downs, Esq. via electronic mail at elissasilverman@gmail.com, bob@the-acorn.com,
and jdowns@bhfs.com; and first class mail to 692 4th Street, NE Washington, DC 20002 on this
20th day of January 2023.

___Natasha Alexander____