Clean Elections

The Citizens Clean Elections Commission has determined state representative David Burnell Smith must forfeit his office. Smith says he’ll appeal.

Transcript:

>> Michael Grant:
Tonight on "Horizon," the Citizens Clean Elections Commission has determined state representative David Burnell Smith must forfeit his office. Smith says he'll appeal. We'll talk about that issue with Representative Smith and Marcia Busching of the Commission. Also a schoolhouse in Wickenburg has played an integral role in the history of that town, the Garcia little red schoolhouse, tonight on Arizona stories.

>> Michael Grant:
Good evening. I'm Michael Grant. Welcome to "Horizon." By a 5-nothing vote, citizens Clean Elections Commission has ruled the state representative David Burnell Smith overspent his public campaign limits and must forfeit his office. That historic decision is the first time a legislator has been ordered to give up his office for such a violation. The commission's decision upheld the actions recommended by Clean Elections Investigator Gene Lemon last Thursday.

>> Gene Lemon:
In formulating my recommendation to you, I chose to utilize paragraph C, which requires a finding that a knowing violation of the act occurred and the commission would have to judge a knowing violation occurred if it agrees with the recommendation. That would, paragraph C, would lead to, and does lead to, my recommendation that the commission find that a forfeiture of office is required. I chose not to find a penalty under A but chose to recommend return of all of the money because of this issue of, was it a knowing violation? And I based the determination that there was a knowing violation on the fact that the respondent himself signed all of the checks that disbursed money from the fund. So, he knew what he was doing. I finally recommend a penalty of $10,000.

>> Michael Grant:
Also on Thursday Smith's accountant, Robert Hubbard, claimed some of the problem was due to Smith's campaign being overcharged for campaign mailers.

>> Robert Hubbard:
I took a 10-key adding machine and added them up, what were the expenditures in those periods, and I set those out in a report that I previously followed. They totaled 26,000. That's 2,000 -- a little more than 2,000 over the primary limit. But as you well know, we were overcharged for campaign literature of 24 or 2800 dollars. That money should be offset against the primary money, because a refund or an overpayment does not meet the definition of an expenditure. It's a mistake. If someone come along and stole half of your primary money, would that be to influence an election? Absolutely not. If they -- overpay a bill by a certain amount and it's a mistake and they get the money back, the fellow says, yeah, I overcharged you, was that to influence an election? Definitely not. It doesn't meet the second criteria of what an expenditure is. So we believe that 24 hundred dollars would offset the primary expenditure.

>> Michael Grant:
Joining me to respond to the commission's ruling is State Representative David Burnell Smith and also here is the commission's chair Marcia Busching. Representative Smith, what about Gene Lemon's point that there you -- you personally signed those checks. So he concluded that the violation had to be knowing and warranted the penalties. How do you respond to that?

>> David Smith:
Well, first of all, let me address this issue. We did not overspend, Michael. I think Mr. Hubbard in his letters to Mr. Lemon, in his addressing the commission, showed that we did not overspend the campaign budget. In fact, the state law requires that you overspend in the primary and the general election by 10%. In the general election we were $2,000 under. So there's no way that we overspent in both the primary and general because the statute says primary and general. In regard to signing the checks, yes, I did sign the checks. But, you know, on a daily basis we had that campaign account, and the account at the end of the day balanced, but the problem was that we had an overpayment to Mr. -- to Mr. Constantine Cuellar which he has refunded and clean elections has accepted and negotiated that check.

>> Michael Grant:
What about the accountant's point that there was, in fact, an inadvertent overpayment and that shouldn't count against the primary spending limit? Why didn't the commission find that a compelling argument?

>> Marcia Busching:
Well, when a candidate runs, he's obviously -- he or she is going to spend monies during the election, and it would not be fair for opponents if a candidate could just go out and spend as much as they wanted and then claim that they were going to get a refund later. I mean, the notion is that they're given a certain amount of funds and they have to stay within that fund limit, and that's what they've sworn in an affidavit to before -- when they agree to run for election.

>> Michael Grant:
If the payment, though, was by mistake, I mean, if it didn't go for purposes -- I think that was the point being made by Hubbard - to influence an election, instead it went because of some sort of a clerical or accounting mistakes, and incidentally, if you don't believe this, that's fine, but getting to that point, does that fall inside the letter and spirit of the law?

>> Marcia Busching:
I think so. The fact of the matter is that the money was spent for campaigning and whether it was a mistake or not, it was spent for the election and to go towards the election.

>> Michael Grant:
Representative Smith, that's the problem that I think this case presents. That's if you believe too many mistakes, you really gut this law. I mean, a candidate could run around spending theoretically as much money as they wanted and just later on say, I'm sorry, that was a mistake.

>> David Smith:
Well, mistakes are made. Every day people make mistakes. But here in this case, let me address the commission -- her argument about the spending. The statute says an expenditures must be used to influence an election. As Mr. Lemon said to me, he said that money just sat in that account. It wasn't used by anybody to do anything. So that was money that was not used to influence an election, it was not used, as she said, for the campaign. It was an overpayment, and when we added up, as Mr. Hubbard added up all the receipts and the checks, Constantine Cuellar owed the campaign or clean elections 27 or almost $2800. We wrote that letter, he returned it, they accepted it. That should be end of story.

>> Michael Grant:
I guess one of the problems I'm having is the basic math of it. I thought that $2800 wouldn't tip this one way or the other. Aren't we well over arguing about 2000 or $2500.

>> Marcia Busching:
Mr. Lemon, the investigator, found that the campaign was over by more than $6,000, which was approximately 17% in excess of the spending limits.

>> Michael Grant:
And Representative Smith, I could have sworn I saw one of your presentations by your campaign that, in fact, admitted that you had exceeded the limit, although you were arguing whether or not it was by 10%.

>> David Smith:
What it was, I can tell you right now the problem goes down to this, Mr. Lemon did not use the seed money, $3190, as an offset in this matter. We're allowed to spend during the qualifying period the 3190 that my contributors gave me. Every single penny that went into that account was accounted for. He even said that. Every single expenditure came out of that account. He said that. Now the question is, should we be charged with the 3190, which was expenditures -- I mean, which was donation made to my seed account during the qualified period? My accountant says yes, the statute says yes. Secondly, the money we paid back to clean election, $1450 for the $5 contributions, he offset that too. That also should be there. Then the money we paid to Constantine Cuellar, that's almost $3,000. That's what he's talking about. Those are the issues. When we get to the administrative law judge, we'll say this is the hard evidence. I've got a manual here, which we presented to the clean elections which shows every single dollar that was spent and yet they ignored it. They have not looked at it. And I submit that I ask the commission, hey, send this back, send this back to your investigating auditors and let them look at it. They had some questions, which they didn't present to us. If they had presented those questions to me, or to Mr. Hubbard or to whoever we used, every single question that clean election has Mr. Lemon has, would be answered.

>> Michael Grant:
I was certainly left with the impression, having followed this admittedly from afar from the past two or three months, that the commission was quite thorough in its examination, including but not limited to, I think, bringing Gene Lemon on to make sure that there were no errors. Is there any doubt in your mind about these numbers or some of the points that Rpresentative Smith has just made?

>> Marcia Busching:
Well, you're absolutely right. This matter, and all matters that come before the Commission, are taken very seriously. When they first come before the Commission, we have a meeting to determine whether there's a reason to believe appear violation may have occurred. After that, it then goes to an investigator who investigates the matter thoroughly and writes up a recommendation. Sometimes there will even be an outside auditor brought in to audit the matter, and then after all of that is done, a lot of times the investigator will sit down with the candidate themselves and go over these issues, and I know in this case there was at least one conversation with either Mr. Smith or his representatives with the investigator. After that, and only after that, does it come back for -- in front of the commission for a question of whether there was probable cause that a violation occurred, which is what happened last Thursday. The commissioners take their role very seriously. There are five commissioners on the commission, and we have large briefing books and we have a lot of materials to study before we make a decision.

>> Michael Grant:
Did you have Mr. Hubbard's materials in front of you?

>> Marcia Busching:
We did.

>> Michael Grant:
And had he done a thorough job in attempting to dissect this? Obviously unsuccessful job, but was he given an opportunity to present his information to the commission?

>> Marcia Busching:
He definitely was. He presented his information both in writing and at the hearing on Thursday.

>> Michael Grant:
And Representative Smith, you're just saying that -- seems to me that there's no meeting it. It seems almost like two different completely sets of numbers.

>> David Smith:
They have fuzzy math. That's what Mr. Lemon in the clean elections has. If you look at the record, the record is clear. We have the books here. They did balance. But the fact of the matter is, even Mr. Lemon, I think, would admit that we did not overspend. Using his figures he said we overspent in the primary but we did not overspend in the general election because we were $2,000 under. Now, in addition, they accepted an agreement with me back -- at least when we first started here, we had an agreement that I would pay $2500. That was going to the commission. We signed it in good faith and said we made a mistake. They rejected it based upon some other reasons. But we have done everything in this case, Michael, to be forthright and honest with them. We've given every single thing they have asked for and I have been available to talk with Mr. Lemon, I couldn't go to the commission because I was in judiciary hearing last week, but they can't remove me from office. It's unconstitutional. The constitution says only the legislature can do it.

>> Michael Grant:
Is this a tough vote for the commission to remove a legislator?

>> Marcia Busching:
Absolutely. We don't like doing that any more than anybody else would, but at the same time, the voters did pass the clean elections act in 1998, and the way they passed it included a provision that a candidate would be removed from office if in fact he spent more than 10% of the funds -- in excess of over 10% of the amounts that he was allowed to, and under the circumstances, we felt that that's what had happened and that's what we did.

>> Michael Grant:
Commission Chairman Marcia Busching, thanks for joining us, Representative David Burnell Smith, good to see your participation as well. It is a beloved national icon, it is the one room schoolhouse, that image conjuring up feelings of warmth and nostalgia for the days of long ago. Although the sight of this slice of Americana is on the decline, a few one room schoolhouses can still be spotted in towns where the pioneer spirit still lives on. One in Wickenburg has become a symbol of the past touching the present. Producer Merry Lucero and Videographers Richard Torruellas and Scot Olson bring us this week's Arizona story.

>>Merry Lucero:
At the turn of the century in the town of Wickenburg 50 miles northwest of Phoenix mining had created a boom. The population was nearing 600, and the children of the town needed a school. So Ygnacio Garcia, a pioneer landowner, deeded parcel of land to Wickenburg for that purpose. Joe Garcia is his grandson.

>> Joe Garcia:
That's why you don't use the land in the first place, because you want people to learn and go to school and learn what's going on in the world.

>> Merry Lucero:
A makeshift wooden schoolhouse was brought in.

>> Penny Pietre:
The school was in somebody's house up until then. They decided they needed a larger one so for $50 I think they bought -- and set up a schoolhouse here. It was drafty and full of rodents and it wasn't very comfortable. But it lasted 10 years.

>> Merry Lucero:
Then in 1905 the school board passed bonds to fund a new school. Soon after, this red brick schoolhouse was built. That was a long time ago, but in Wickenburg, things seem to put down roots and so do people.

>> Dana Burden:
After here you go onto high school, right? Then onto college and onto life. And then you come back. And here I am. Sitting where I started.

>> Merry Lucero:
Many one-time students of this school still call Wickenburg home. The schoolhouse brings back rich memories of their days in pigtails and dungarees.

>> Alicia Quesada:
If you were good you got to clean the blackboard, and if you were good, you got to feed -- we had a big pot stove, that was our heating, and you had to feed it coal or wood. So whenever that stove needed to be fed, well, if you were one of the good students, you got that privilege.

>> Royce Kardinal:
I remember in the afternoons you went to school all day in first grade and I remember if we were tired and we had to bring towels to take our -- we actually had a nap period, and you had to lay out on this floor, take your little nap.

>> Merry Lucero:
Eugene Quesada was a first grader here in 1933.

>> Eugene Quesada:
For instance, one time I was asked to go up to the chalkboard and write out the alphabet, and at a certain point she asked me to write it backwards. So I wrote it backwards. You know, showing off. And I don't remember how she knew I could do it, but she knew I could do it.

>> Royce Kardinal:
I remember they used to ring the bell when it was time to come in from the playground.

>> Joe Garcia:
Yeah, I -- somebody was pulling the cord, the rope, the bell to start school or change classes.

>> Alicia Quesada
The other privilege you got was to ring the bell. When it was time to ring the bell, you got to do that.

>> Owen Black:
The bell is there, and with the cord hanging down, it was always a thought of just ringing that thing without them asking you to.

>> Merry Lucero:
The schoolhouse was later divided into two rooms, many memories of school teachers remained, some fond --

>> Royce Kardinal:
bee this side Mrs. Mitchell was the teacher and the other side was --

>> Eugene Quesada:
Miss Anderson was my first grade teacher. Most beautiful woman that lived. At the end of the year she ran off and got married.

>> Joe Garcia:
She was a big, nice, tall lady, my teacher, and she liked to sing, she had a harp before we started classes, we would sing good morning.

>> Merry Lucero:
Others not so fond.

>>Leonard Hershkowitz:
Not the fondest. Not the fondest but being sent out for causing a disturbance, about every day, talking, pinching the girls, slapping somebody. And I know they were glad to get rid of me, Mrs. Reyes was. She was awful glad to get rid of me.

>> Jorja Beal:
My first grade teacher was an old maid, Miss Anne Marie RADES, and the day we graduated from first grade she had us file single file out that door right there and we had to all kiss her on the cheek. She was standing by the stairs, so we were about the same level because we were up on the stair, and she was on the ground, and we had to kiss her on the cheek and I do remember that vividly, and it was like her cheek sunk in.

>> Merry Lucero:
1920s, 1930s, 1940s, Wickenburg continued to grow. A larger school building was built next door for the upper grades. Later, the little red schoolhouse was reduce to do a storeroom but it still held a fascination for students.

>> Dana Burden:
So it was kind of a mystery place for us that we all wished we could get into. So during recess time one of our sports was myself and a couple friend, we would get sticks and start to dig between the rocks that are holding this thing up, trying to dig our way into the basement of this thing because we knew it was full of wonderful treasures.

>> Merry Lucero:
But in 1978 the new school building caught fire and was a complete loss. Progress brought change to the area, but the little red schoolhouse remained. Word of its demolition buzzed around town but instead the building was bought by a bank, renovated, and used as such. Until it was donated in 2003 to the Wickenburg chamber orchestra.

>> Penny Pietre:
This building was built for the town and the children of this town, and it was -- served that purpose for many years and became a commercial bank, and I feel that way exactly, that it's come back to the town, that it belongs to the town again.

>> Merry Lucero:
The WCO dedicates much of its resources to the children of Wickenburg and the surrounding rural areas like Yarnell where the members of this quartet live.

>> Marina Rauh:
We're rural, we're 45 minutes away from Prescott, we're 45 minutes away from Wickenburg, there's nothing for these kids to do and music has become a huge part of their lives.

>> Kendra Delano:
And it doesn't feel, I believe, is ready to work with the children in this building so that when children visit the WCO can identify the gifted and talented musicians and make sure that all of those children have instruments to play if they'd like to.

>> Merry Lucero:
So the little red schoolhouse has come full circle, back to its children and back to the ones who were once its children.

>> Michael Grant:
Here to tell us about the celebration of the schoolhouse's centennial April 16th is a member of the Wickenburg cultural organization is penny Pietre. It's good to see you. That's heart warming.

>> Penny Pietre:
It is.

>> Michael Grant:
Coming full circle, really.

>> Penny Pietre:
We've been doing this for 10 years, you know, serving the kids of Wickenburg and five other towns, as a matter of fact.

>> Michael Grant:
Now, it is on the national register stir of historic places, right?

>> Penny Pietre:
It is.

>> Michael Grant:
Can people just visit?

>> Penny Pietre:
It's open 10 to 4, every day we get lots of tourists, some of them say I went to school in a little schoolhouse like this or want to walk around. We have a wall of history that shows the history of the schools in Wickenburg from 1884 to the present day.

>> Michael Grant:
Now, we touched on this inside the tape piece but I want to go back to it again. It was scheduled for demolition in the 1980s?

>> Penny Pietre:
1983. It was going to be torn down, so we hear, and the Georgia Beale, who you saw in the piece, said she was threatening to chain herself to the schoolhouse if that happened, and she got the bank, she got Gary Johnson, a trustee of the community bank, to buy it and lease it to the bank, and it was a bank for 20 years.

>> Michael Grant:
Well, it looks like it's been wonderfully restored.

>> Penny Pietre:
The bank took it down to the studs and really renovated it. They didn't renovate it, they restored it to its original condition, and put the hardwood floors in, the wood tongue and groove ceilings. They did enlarge the basement.

>> Michael Grant:
It sounds like it didn't help the foundation that you had kids scraping away the mortar there trying to get into what they thought were a lot of treasures underneath it.

>> Penny Pietre:
Those little kids are from Morris town and I can assure you all of Morris town is watching you tonight because those are their children and those little boys had the best time digging into the foundation.

>> Michael Grant:
I bet. It was nicely put together. Well, the centennial is coming up --

>> Penny Pietre:
16th --

>> Michael Grant:
Tell us about what's going on.

>> Penny Pietre:
16th of April. We're inviting the whole State of Arizona to come and see one of the most beautiful little school houses around. There will be lots of free events, stagecoach rides, a quilt show, performances, and I just lost my microphone.

>> Michael Grant:
You did. Just hold it up like that.

>> Penny Pietre:
The presentation of our oral history project, we got a grant from the Arizona humanities foundation, and we're exploring on the heels of the museum that started it some years ago the stores of the descendants of the pioneers, and there are many, many of them who still live in the area. So we're interviewing them and we'll present that on the 16th.

>> Michael Grant:
This will be part of it?

>> Penny Pietre:
10 to 4 all days long. Loads of stuff to do.

>> Michael Grant:
Penny Pietre, pass fascinating --

>> Penny Pietre:
We hope you'll be there, Michael Grant.

>> Michael Grant:
We appreciate you joining us and talking about it. Every Monday on "Horizon" we feature a new Arizona story. These stories feature the qualities that are unique to our Grand Canyon state. Next Monday on "Horizon" we're going to travel to walnut canyon to tell you about the contributions of the civilian conservation corps.

>> Paul Atkinson:
Public housing, utility assistance, college entrance and financial aid would all be denied to illegal immigrants under a bill passed by the house. Plus, how well is the department of juvenile corrections doing after federal investigators found numerous problems last fall? These issues Tuesday at 7 on "Horizon.".

>> Michael Grant:
Wednesday we will be taking a look at plans for the new Rio Salado Audubon center. On Thursday we'll be talking to Jay Smith, the author of a new biography about congressman John Rhodes entitled "man of the house." Of course, on Friday, please join us for the Journalists Roundtable where journalists join me to talk about the news events. We appreciate very much you joining us on a Monday evening. I'm.

>> Michael Grant:
-- I'm Michael Grant. Hope you have a great one. Good night.