Dykema cleared of wrongdoing in GOP complaint

by susan on December 11, 2012

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Above: Rep. Carolyn Dykema (left) serves lunch to seniors at her annual picnic (contributed photo)

There’s an update this week on a topic that caused much debate here on the blog in the run-up to this year’s election. In September the Massachusetts Republican Party filed a complaint alleging improper corporate contributions were made to the campaign of Representative Carolyn Dykema.

Republicans said Dykema accepted corporate donations as raffle prizes at the senior picnic she hosted over the summer. Massachusetts state law prohibits political campaigns from accepting corporate gifts.

Dykema’s office released a statement this weekend saying she has been cleared of any wrongdoing by the Office of Campaign and Political Finance.

The Massachusetts Office of Campaign & Political Finance (OCPF) has issued its finding in response to a complaint filed this summer by the Massachusetts Republican Party against Rep. Carolyn Dykema. OCPF issued its official finding in a letter dated Nov. 20, 2012. In its letter, OCPF announced it has concluded its review and found that Dykema did not inappropriately benefit from door prizes contributed by local businesses in support of a senior citizen picnic, as alleged.

“I’m glad this issue has been resolved,” said Dykema. “In its finding, OCPF has confirmed what residents of this district have always known: the senior picnic is about our community and our seniors and not about campaign politics. I’m pleased that next year’s picnic can go on as planned and I’m looking forward to continuing to recognize our seniors for all they contribute to our towns.”

The allegation by the GOP came two months before the general election which saw Dykema defeat Republican challenger Marty Lamb. Dykema represents the 8th Middlesex District which includes all three Southborough precincts.

1 Dean Dairy December 12, 2012 at 4:27 AM

Look behind the exculpatory “statement” issued last weekend, seriously, by Rep. Dykema’s own office, no less.

Rather than being “cleared of wrongdoing”, the Mass Office of Campaign & Political Finance (OCPF) gave Rep. Dykema her own ethics do-over — a “mulligan”.

The conclusion, from the OCPF letter:

http://www.hcam.tv/sites/default/files/final_ocpf_letter_2012.pdf

“Such corporate donations could be construed as indirectly aiding or promoting a candidacy in violation of §8. WE BELIEVE, however, that the prizes were donated to benefit the seniors, not to support Representative Dykema’s campaign, and that many of the donors have donated similar prizes in the past, regardless of who was hosting the event. Because the DONORS DID NOT INTEND to benefit Representative Dykema’s campaign, and because the event is a long-standing constituent event that WAS [past tense] not political in nature, the office has concluded that no further action is warranted at this time. The office has reached this conclusion in part because the senior picnic was not a fundraising event, and no money was raised for Representative Dykema’s campaign at-the event or, as a result of the event. [FN:] To avoid even the appearance of an issue under the campaign finance law, the [Dykema] Committee has indicated it will no longer accept merchandise or gift certificates from any entity subject to the restrictions of §8.”

Notice how the OCFP and §8 focus Inspector Clouseau-like on the intent of the donors, not the unethical conduct of the accused politician. Never mind that it was “members of Representative Dykema’s staff that contacted local vendors to request donations to be used as door prizes”. Hard to believe a Republican official would have been treated similarly by the OCPF and with such kid gloves by the local press.

Meanwhile, the OCPF advice to officeholders seems to be that you are best served if you hijack an existing, apolitical event for your political purposes.

“Representative Carolyn Dykema Welcomes Our Seniors”

http://www.sceneinhopkinton.org/p142343344/h47a91386#h47a918f4

Well, doesn’t that just take the cake!

2 Frank Crowell December 12, 2012 at 1:14 PM

Republicans treated fairly in this state or the media – forget it – will never happen.

Good review of the situation though Dean.

I wonder how many tax increases will be passed by the Mass Legislature this year. Or better yet, how many will Ms. Dekema will vote against? Higher gas tax or new road user fee?

3 Kelly Roney December 13, 2012 at 6:13 PM

Hard to believe a Republican official would have been treated similarly by the OCPF and with such kid gloves by the local press.

In fact, this event was previously run by a Republican, Paul Loscocco, who also had prizes donated by local businesses.

And the press printed huge gobs of mud from Marty Lamb throughout 2012.

You guys wanted the press to find Rep. Dykema guilty. She wasn’t. They didn’t.

4 Resident December 14, 2012 at 8:20 AM

This was a bogus charge from day one. No amount of reason will convince them otherwise, Kelly. They don’t like the findings so now there is a problem with the investigation. The Republican party is at an all-time low. They show no signs of ceasing to dig themselves even deeper. Resonable Republicans (if there are any left out there) should just abandon the “brand” altogether and come up with a new one – that is, if they care at all about having REAL Republican values represented in the future.

5 Dean Dairy December 17, 2012 at 12:17 AM

Resident: “They don’t like the findings so now there is a problem with the investigation.”

I completely disagree.

For findings, I know of no other source in the local press that printed the actual OFCP “findings” and linked to the original OFCP letter.

As to the investigation, I objected to Rep. Dykema’s misleading characterization of the outcome.

The OFCP received a de facto voluntary consent decree from Rep. Dykema in low-key terms. I suppose that outcome reflects terms that were negotiated between the OFPC and the Dykema legal team.

Apart from Rep. Dykema’s case, I pointed out how poorly suited §8 of the law seems to investigate this type of infraction.

And the potential for the OFCP to tip the newsworthy outcome based upon personal favorability, which in this state tends to list in one party’s direction.

6 Kelly Roney December 17, 2012 at 12:06 PM

Carolyn characterized the outcome completely correctly, but went even another step further. There is no finding of wrongdoing whatsoever by the OCPF, nor is there any ruling forbidding doing exactly the same again. Nonetheless, Carolyn won’t do the completely innocent thing she – like both the Reps before her – previously did.

She was exonerated by the OCPF from this politically-motivated attempt by her opponent to damage her reputation.

7 Dean Dairy December 23, 2012 at 9:32 AM

Kelly, let me explain in a little more detail.

The outcome of the Dykema campaign ethics investigation shows exactly how political insiders can manipulate the law to broom away an ethics charge. Whether one thinks allegation was small potatoes or not, the Office of Campaign Finance (OCPF) established a truly dangerous precedent.

The OCPF never determined whether Rep. Dykema’s sought to benefit politically from the donations her campaign solicited from private businesses, a violation of law.

Unbelievably, the OCPF avoided the pertinent question — candidate Dykema’s conduct — by basing its ruling on the intent of the donors, before arriving at its rather ambiguous conclusion that “no further action is warranted AT THIS TIME”.

The OCPF letter recites MGL ch 55 §8 as the governing statute, quoting the first paragraph of the law restricting the activity of corporate donors. Yet the OCPF never addressed the more relevant second paragraph of the law that pertains to solicitations by politicians and their campaigns, which was the actual basis of the complaint.

The OCPF letter completely ignores the second paragraph of §8, which states: “No person or persons, no political committee, and no person acting under the authority of a political committee, or in its behalf… shall solicit or receive from such corporation or such holders of stock any gift, payment, expenditure, contribution or promise to give, pay, expend or contribute for any such purpose“.

Link to the concise, three-paragraph §8:
http://www.malegislature.gov/Laws/GeneralLaws/PartI/TitleVIII/Chapter55/Section8

By misdirecting its inquiry, the OCPF was able to avert its eyes from its own factual finding that it was “members of Representative Dykema’s staff that [had] contacted local vendors to request donations”.

Ignoring the most pertinent law and facts, the OCPF letter concluded: “Because the DONORS DID NOT INTEND to benefit Representative Dykema’s campaign, and because the event is a long-standing constituent event that WAS [past tense] not political in nature, the office has concluded that no further action is warranted AT THIS TIME.”

What a ruse! Under the guise of investigating a politician’s conduct, the OCPF ruled instead on the intent of the donors. The OCPF letter did not in any way render a direct finding on whether Rep. Dykema or her campaign itself sought to benefit politically from the corporate donations they solicited from local businesses in violation of §8.

Link to the two-page OCPF letter:
http://www.hcam.tv/sites/default/files/final_ocpf_letter_2012.pdf

Accordingly, the statement issued by Rep. Dykema claiming the OCPF had found that she “did not inappropriately benefit from door prizes contributed by local businesses” was misleading. The OCPF only looked at the irrelevant half of the transaction and failed to address the law as it applied to Rep. Dykema’s campaign for public office.

So, why did the OCPF render such a blinkered finding, and what was the point of the OCPF’s ambiguous words, “at this time”?

I interpreted “no further action…warranted at this time” to express contingency. I assumed that contingency was Rep. Dykema keeping her promise, in the OCPF letter, not to repeat the practice. That is why I described the decision as an ethics “mulligan” for Rep. Dykema and a de facto voluntary consent decree with no admission of wrongdoing.

I suspect Rep. Dykema’s lawyer, a former House Counsel “under five Speakers” from 1986 until 2009, worked-out a deal with the OCPF that accomplished two things, but left a horrible precedent in its wake:

(1) The OCPF letter gave Rep Dykema deceptively plausible cover to claim OCPF found that she “did not inappropriately benefit” — the statement her office crafted and ran with to the press; and

(2) it preserved the OCPF’s ability to back-track later, if need be, that it handled a de minimis ethics violation as a practical matter by securing a promise from the candidate not to do it again.

So, under which shell is the pea hidden? The way it’s done on Beacon Hill.

For good government people of all parties, it’s hard to know what to fear most.

On an agency level, this ruling reveals that the OCPF has wide discretion to make these issues either difficult, or not, for a candidate based upon subjective and collateral criteria. Either the OCPF failed to do its job, applied favoritism, or there is a gaping hole in the ethics law.

Hence, my concern about the potential for the OFCP to shape a newsworthy outcome based upon personal favorability.

8 Kelly Roney December 24, 2012 at 11:12 PM

Tendentious nonsense, thoroughly but wrongly rationalized.

Just one example: Of course the event was in the past. The OCPF looked at an event that happened last summer – at a specific time in the past. Yet you read mere past tense as confirming your bias and your suspicions, which have zero basis in evidence, only your adverse suppositions.

Carolyn was exonerated, and your inability to see that in the plain language of the OCPF letter is your problem, not hers.

9 Dean Dairy January 4, 2013 at 10:11 AM

Video evidence may help readers to decide for themselves whether the 2012 gathering became “political in nature”.

Watch the Hopkinton HCAM TV news clip below. While edited, you can judge whether Rep. Dykema and Hopkinton BOS chair Ben Palleiko used the amplified public address system to steer the event toward promoting her reelection, starting @ 0:47 for about a minute thru 1:35. (Rep. Dykema also appears to be hand-drawing and announcing the winners of the door prizes her campaign solicited from businesses @0:07.)

These aren’t private conversations with attendees that drifted into politics at the request of a constituent, and it appears there was no lack of PR-style “brand” identification between the candidate and the controversial door prizes.

http://www.hcam.tv/videos/rep-dykema-hosts-annual-senior-picnic

I presume similar video evidence was available to the Office of Campaign Finance (OCPF), complete and unedited, if they simply made standard inquiries of the parties or just bothered to Google.

The OCPF letter showed no interest in the likelihood that video from the event might even exist much less provide objective evidence on which to base its findings. Once again, the OCPF seems oblivious to the relevant and factual while remaining preoccupied with the anecdotal and subjective in issuing its decision. (Head meet sand, bury, repeat.)

Meanwhile, Kelly hangs his rebuttal on how I alluded – parenthetically – to the shifting verb tense within the OCPF letter’s concluding sentence. I did so in brackets to note a passing example of the ambiguity throughout the OCPF letter’s tenuous findings, mismatched legal analysis and oddly contingent “no further action is warranted at this time” outcome. It was not part of my substantive argument on the merits of the ethics charge. Yet it is the crux of Kelly’s rebuttal.

Incoherence of the OCPF letter’s kind is of significance prospectively, however, when it’s the basis of a public ethics investigation that will stand as precedent. Underscoring that uncertainty, look at Kelly’s earlier comment: “There is no finding of wrongdoing whatsoever by the OCPF, nor is there any ruling forbidding doing exactly the same again.”

Really? Let the reader decide. Would you advise a candidate to test the Dykema precedent by soliciting corporate donors? Did you reach your opinion because the OCPF established a clear rule likely to be applied equally to all, or an incomprehensibly murky one susceptible to capricious and selective enforcement?

In politics, watch what people do, not what they say. Rep. Dykema shrewdly got the OCPF to publish her informal promise not to repeat her conduct while getting a pass with no admission of wrongdoing.

A very favorable result for Rep. Dykema created a terrible precedent for transparency in public ethics enforcement.

10 Kelly Roney January 4, 2013 at 5:23 PM

You seem to be trying to claim – and not merely parenthetically – that Carolyn unprecedentedly turned this formerly non-political event into a rally. Nope. I’ve been to several of these picnics, so I know there’s not a dime’s difference among the previous Reps’ handling of the event and Carolyn’s. Barbara Gardner and Paul Loscocco handed out door prizes, had politicians of both parties present, and gave constituent reports about events, progress, and plans on Beacon Hill.

By calling this a bad precedent, you acknowledge the plain finding of the OCPF, exonerating Carolyn. If you want to continue to argue that this is a bad precedent, knock yourself out, as that doesn’t contradict anything Carolyn has said or done.

You want different law? Lots of us have laws and regulations we’d like to see changed. I’d like to see Citizens United v. FEC overtuned by new law, but as this case is, Citizens is settled case law, from which there is no further appeal.

At the end, you’ve posed rhetorical questions beyond my claims. I say “no finding of wrongdoing” about this case. You ask about a hypothetical future case that would have been impossible for me to say word one about, since it’s your hypothetical! I say “no ruling forbidding doing exactly the same,” which is plainly true even if, hypothetically, your question about the clarity of the ruling has led to a murky rule. You can’t seem to stay on point. Indeed, let the reader decide.

And you repeat the assertion that the OCPF made a deal with Carolyn. Once again, you have no evidence at all, only your prejudgement of the issue and your appeals to the prejudice of some readers. You call her shrewd with no evidence.

All you have is your just-so story of what happened, which you made up of whole cloth without witnessing any of its alleged narrative. If you have children, you would never permit them to repeat that as if it were a true story.

11 Frank Crowell January 5, 2013 at 7:24 AM

Nice work Dean. You have clearly established that this is a bad precedent for all the citizens of Mass. OCPF clearly gave Rep. Dykema a mulligan.

12 Jim January 4, 2013 at 8:40 PM

Maybe it is time to close this thread.

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