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COUNTY OF RICHMOND
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In the Matter of the Application of JAMES :
THOMSON, MEGHAN THOMSON, JAMES :
REYES SALAZAR, BRANDON LINKER, and : Index No. 080319/09
JAMES HART, :
: Special Election Part
Petitioners, :
: Justice Giacobbe
- against - :
:
DATA AND FIELD SERVICES, INC., DAVID :
THOMAS, as the Treasurer of Debi Rose 4 City STIPULATION OF
:
Council, BOARD OF ELECTIONS IN THE CITY : SETTLEMENT AND ORDER
OF NEW YORK, and NEW YORK STATE :
BOARD OF ELECTIONS, :
:
Respondents. :
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WHEREAS, Petitioners James Thomson, Meghan Thomson, James Reyes Salazar, Brandon
Linker and James Hart (collectively, “Petitioners”) filed a petition, alleging that Respondent Data
and Field Services, Inc. (“DFS”) made undisclosed in-kind contributions to Debi Rose 4 City
Council, Rose’s campaign committee for the 2009 primary and general elections (the “Rose
Campaign”), by either failing to charge or undercharging the Rose Campaign in multiple respects, in
violation of Article 14 of the New York State Election Law (the “State Election Law”), and then
a. $5,600.00 in costs for the services of DFS employees Vonda McKeithan, Bryan
c. $800.00 in tolls for transporting its canvass workers to Staten Island to canvass for
d. $1,125.00 for access to the Voter Activation Network (the “VAN”); and
e. $5,000.00 for failing to collect, prior to commencing work for the Rose Campaign,
that amount still owed to it for its services to Friends of Debi Rose, Rose’s campaign
WHEREAS, DFS and David Thomas, as the Treasurer of Debi Rose 4 City Council (the
“Rose Campaign”) (together, “Respondents”), answered the petition and opposed the motion in
WHEREAS, Petitioners and Respondents wish to resolve this action on a consensual basis,
thereby obviating the need for any finding whether Respondents violated the State Election Law;
and
WHEREAS, Respondent New York State Board of Elections (the “State Board”) has
previously informed the Court that it “takes ‘no position’ on the merits” of this special proceeding
IT IS HEREBY STIPULATED AND AGREED, by and between the attorneys for the
1. DFS shall immediately issue a supplemental invoice in the sum of $8,525.00 to Debi Rose 4
City Council; and DFS shall immediately reissue an invoice in the sum of $5,000.00 to
Friends of Debi Rose as the amount still owed to DFS for its services to Rose’s campaign
during the February 2009 special election. Debi Rose 4 City Council shall promptly amend
its public financial disclosure reports filed with the State Board and the New York City
Campaign Finance Board to reflect this liability and its obligation to pay the aforesaid sum of
$8,525.00. And Friends of Debi Rose, immediately upon receipt of the reissued invoice,
2. Debi Rose 4 City Council shall also review in good faith all of the other allegations raised in
this special proceeding and make any other disclosures required by law when it re-files,
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consistent with its obligations under, and subject to the provisions of, Article 14 of the State
Election Law. The amendments to its public financial disclosure reports shall occur in any
event within 30 days of the date of entry of this stipulation and order.
3. In addition, as soon as practicable but, in any event, by no later than 90 days from the date
of entry of this stipulation and order, Debi Rose 4 City Council shall pay the aforesaid sum
4. DFS shall promptly implement reforms in its corporate structure and corporate governance
to ensure that it adheres to proper corporate formalities and operates independently and not
under the control of the Working Families Party, the Working Families Organization, and
implement procedures, best practices and by-laws intended to ensure that DFS is
operated in a manner that complies with all applicable state and local campaign
finance laws, and is operated independently and not under the control of the WFP.
period of at least two years prior to appointment, they have not themselves been:
(i) employed by, a member of, or a contributor to the WFP; or (ii) employed by, a
member of, or a contributor to any contributor to the WFP; provided, however, that
b. DFS shall establish management, administrative, and employment structures that are
independent of and not controlled by the WFP. In this regard, DFS should cause its
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payroll system, finance record keeping, IT department, and its full-time
administrative staff to be reviewed to assure that they are independent of and not
c. DFS shall engage at its expense going forward a certified public accounting firm,
different from any such firm that has provided or is providing such services to the
WFP, to audit its books and records, and then issue audited financials each year;
d. DFS shall engage at its expense going forward a law firm, different from any such
firm that has provided or is providing such services to the WFP, to ensure DFS’s
compliance with all applicable state and local campaign finance laws;
e. DFS shall change its standard contract with candidate-clients or their committees to
provide express terms identifying: (i) the DFS employee(s), or in the case of
canvassers, the type of employee, who will perform services under the contract;
(ii) the services such employee(s) will perform; (iii) the estimated total hours, or in
the case of canvassers, total shifts, expected to be worked by the employee(s); and
(iv) the amount that DFS will charge for each such employee’s services. The charges
shall be based on either a specified hourly rate or shift charge or flat rate, as the case
may be, for the services to be provided by each such employee or type of employee
under the contract. For canvassing contracts, that contract shall set forth the
number of canvassing shifts that DFS agrees to provide. DFS shall charge its
candidate-clients (or their committees) fair market value for the actual services
f. DFS shall review in good faith its practices and procedures to date, in light of the
allegations made in this special proceeding, to determine the extent to which it may
have undercharged the campaigns for which it provided services, and thereby
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effectively given those campaigns in-kind contributions, and to change its fee
structure going forward as warranted based on that review to ensure that DFS
charges all future campaigns for the fair market value of the actual services DFS
provides;
g. DFS shall not provide access to the VAN to its candidate-clients or their committees
the actual fair market value of the VAN to its candidate-clients (or their committees)
for whom or which DFS provides services. DFS shall provide Petitioners, through
their attorneys, with prior notice of any candidate it proposes to serve as the
proposed candidate shall then have to be approved by the Court in order to serve.
DFS shall charge its candidate-clients and their committees the amount determined
by the independent expert to be the actual fair market value of the VAN.
5. DFS reserves the right to apply to this Court, on notice to Petitioners, through their
attorneys, for an order modifying any provision set forth in paragraph 4 above, for good
6. In exchange for the foregoing, Petitioners agree to discontinue this special proceeding.
admission by either Respondent that there has been a violation of the State Election Law or
8. The parties have entered into a confidentiality agreement, pursuant to which DFS has
Exhibit A, is incorporated by reference into this stipulation and order, but shall survive.
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9. This Court shall retain jurisdiction over this special proceeding to oversee, implement and
enforce the terms of this stipulation and order, and to render any further decisions required
hereunder.
10. For purposes of this stipulation and order, the parties, through their counsel, shall be
permitted to sign in counterpart, which shall be deemed good and effective execution of this
agreement, and faxed or scanned signatures shall be deemed to be originals. This stipulation
and order shall be binding on the parties so long as executed by at least one counsel of
record for each party hereto (Petitioners, the Rose Campaign and DFS).
By: By:
Randy M. Mastro Alexander Rabb
Kevin Blake
Timothy D. Swain 80 Eighth Avenue, Floor 8
Eric Yuen New York, New York 10011
Telephone: (212) 627-8100
200 Park Avenue, 47th Floor Facsimile: (212) 627-8182
New York, New York 10166-0193 arabb@levyratner.com
Telephone: (212) 351-4000
Facsimile: (212) 351-4035 – and –
rmastro@gibsondunn.com
KANTOR, DAVIDOFF, WOLFE,
– and – MANDELKER, TWOMEY &
GALLANTY, P.C.
RALPH J. PORZIO, ESQ.
By:
By: Lawrence A. Mandelker
Ralph J. Porzio
51 East 42nd Street, 17th Floor
686 Forest Avenue New York, New York 10017
Staten Island, New York 10310 Telephone: (212) 682-8383
Telephone: (718) 448-4000 Facsimile: (212) 949-5206
Facsimile: (718) 876-9302 mandelker@kantorlawonline.com
Attorneys for Petitioners Attorneys for Respondent Data and Field Services, Inc.
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HENRY T. BERGER
By:
Henry T. Berger
– and –
STUDIO LEGALE
By:
Robert A. Mulhall
So Ordered:
____________________________________________
Hon. Anthony I. Giacobbe, J.S.C.