Filed July 19, 2007

In re Dennis Anthony Brennan
Commission No. 05 CH 94

Synopsis of Hearing Board Report And Recommendation

NATURE OF THE CASE: 1) engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation; and 2) engaging in conduct which tends to defeat the administration of justice or to bring the courts or the legal profession into disrepute.

RULES DISCUSSED: 8.4(a)(4) of the Illinois Rules of Professional Conduct, and Supreme Court Rule 770.

RECOMMENDATION: Charges dismissed.

DATE OF OPINION: July 19, 2007

HEARING PANEL: Champ W. Davis, Jr., Chair; George M. Shur; Roberta Parks.

RESPONDENT'S COUNSEL: Samuel J. Manella.

ADMINISTRATOR'S COUNSEL: Meriel R. Coleman.

BEFORE THE HEARING BOARD
OF THE
ILLINOIS ATTORNEY REGISTRATION
AND
DISCIPLINARY COMMISSION

In the Matter of:

DENNIS ANTHONY BRENNAN,

Attorney-Respondent,

No. 6194686.

Commission No. 05 CH 94

REPORT AND RECOMMENDATION OF THE HEARING BOARD

INTRODUCTION

The hearing in this matter was held on October 19 and 20, 2006, at the offices of the Attorney Registration and Disciplinary Commission, Chicago, Illinois, before a Panel of the Hearing Board consisting of Champ W. Davis, Jr., Chair, George M. Shur, lawyer member, and Roberta Parks, public member. The Administrator was represented by Meriel Coleman. The Respondent was present and was represented by Samuel J. Manella.

PLEADINGS

On August 31, 2005, the Administrator filed a one-count Complaint against the Respondent charging that he engaged in dishonesty, fraud, deceit or misrepresentation; and engaged in conduct which tends to defeat the administration of justice or to bring the courts or the legal profession into disrepute.

The charges of misconduct were based upon the following factual allegations:

On various occasions between 1989 and 2001, the Respondent had served as chairman or treasurer of nine political committees. In 2001 the Respondent was employed as the attorney for the School Board of District 229 in Oak Lawn. In February 2001, there were nine candidates for four positions on the school board, to be elected at the April 3, 2001 election.

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In February 2001, the Respondent met with school board president Jerry Vahl and others and discussed a strategy to defeat four candidates for School Board. The four candidates had been endorsed by Vahl's political opponent, Jerry Hurckes. The Respondent was concerned that if Hurckes' candidates were elected, a new majority would be formed, and his employment as school board attorney would be jeopardized.

As a result of the above discussions, the Respondent agreed to pay for the production and distribution of a videotape critical of Hurckes' candidates. The Respondent then agreed to have First Light Productions prepare the videotape. First Light prepared the videotape, entitled, "Protect Our Children," that was critical of Hurckes' candidates, and on March 14, 2001, sent an invoice for $10,115.50 to the Respondent. The invoice was addressed to "The Committee to Stop the Hurckes Four/Dennis Brennan." On March 14, 2001, the Respondent paid the full amount of the invoice with a check from his personal account.

The Respondent hired TC Marketing to mail copies of the above videotape to the residents of School District 229. The videotapes were mailed prior to the April election, and, on about March 23, 2001, the Respondent paid TC Marketing $1,249.60 for doing so.

Under the Illinois Election Code, 10 ILCS 5/9-1.7(a), a local political committee includes any individual or group who accepts contributions or makes expenditures exceeding $3,000 during any 12-month period on behalf of or in opposition to any candidate for public office. As of March 14, 2001, the Respondent had formed a local political committee by having spent more than $3,000 in opposition to candidates for public office. Additionally, the Respondent qualified as a "sponsoring entity," under 10 ILCS 5/9-3, by March 23, 2001, because he had funded 100% of the political committee's expenses for the creation and distribution of the videotape.

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The Election Code, 10 ILCS 5/9-2, provides that every political committee is to designate a chairman and a treasurer; that the treasurer shall be responsible for keeping the records and for filing required reports; and that no expenditure shall be made on behalf of a political committee when there is a vacancy in the office of the chairman or treasurer.

The Election Code, 10 ILCS 5/9-3, provides that a local political committee created within 30 days prior to an election is required to file a Statement of Organization, Form D-1, with the State Board of Elections within 5 business days of its creation, and provide the name and addresses of the committee, name of any sponsoring person who contributed one-third of the committee's total funding, and the name and address of the custodian of the committee's books and accounts. Thus, the Committee to Stop the Hurckes Four was required to file a Statement of Organization by March 21, 2001, which was 5 business days after its formation on March 14, 2001. No such Statement of Organization was filed prior to March 30, 2001.

On March 29, 2001, the Respondent completed a Statement of Organization, Form D-1, which designated David Zapata as chairman and treasurer of the Committee to Stop the Hurckes Four. Zapata signed the form on March 29, 2001. Prior thereto, Zapata had not acted as the chairman or treasurer, and did not have custody of any committee books. The Respondent knew the foregoing facts.

On March 30, 2001, the Respondent filed the Form D-1 with the State Board of Elections. He made the following statements on the Form D-1: that the complete name of the Committee was the "Committee to Stop the Hurckes Four;" that the Committee had been created on March 26, 2001; and that the Committee's books and accounts were in the custody of Zapata. The foregoing statements were false and misleading because the Respondent qualified as a sponsoring entity whose name was required to be disclosed as part of the Committee's complete

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name; the Committee had been formed by, at least, March 14, 2001; and the Respondent had custody of the Committee's books and accounts. Thus, the Respondent knew or should have known that the statements on the Form D-1 were false and misleading.

The Election Code, 10 ILCS 5/9-10, requires the treasurer of a local political committee to report the expenditures of and contributions to the committee within 2 business days if the amount received or expended within 30 days of an election exceeded $500. Thus, the treasurer of the Committee to Stop the Hurckes Four was required to report the Respondent's expenditure of $10,115.50 to First Light Productions by March 16, 2001, and was required to report the Respondent's expenditure of $1,249.60 to TC Marketing by March 27, 2001. The Respondent had retained the records of the foregoing expenditures, but neither the Respondent nor the Committee reported the expenditures prior to June 18, 2001. The Respondent knew or should have known of the above requirements.

On March 29, 2001, the Respondent told Sara Gadola, a reporter for a newspaper circulated in School District 229, that he had not been involved in the creation of the Protect Our Children videotape. The foregoing statement was false because the Respondent had paid for the production and distribution of the videotape. The newspaper contained an article on March 30, 2001, reporting that the Respondent stated he had not created or mailed the videotape.

On April 27, 2001, subsequent to the school board election, the Respondent completed and filed an amended Form D-1 on behalf of the Committee to Stop the Hurckes Four. The amended form designated the Respondent as chairman and treasurer, and reported that he had custody of the books and accounts. The amended Form D-1 contained the same false statements, regarding the complete name of the Committee and date it was created, that were on the original Form D-1.

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On May 23, 2001, the Campaign Disclosure Division of the State Board of Elections filed a complaint against Zapata and the Committee to Stop the Hurckes Four for violations of 10 ILCS 5/9-2 and 5/9-7, based upon the Form D-1 that was filed on March 30, 2001. On June 18, 2001, the Respondent filed a Report of Campaign Contributions and Expenditures, Form D-2, which listed the Respondent's expenditures to First Light Productions and to TC Marketing. He characterized his payments as loans to the committee. On August 7, 2001, based upon the original Form D-1 and the amended Form D-1, the Campaign Disclosure Division of the State Board of Elections filed an amended complaint against Zapata, the Committee, and the Respondent, charging violations of 10 ILCS 5/9-2, 9-3, 9-7, 9-10(b5) and 9-26.

On October 5, 2001, a hearing officer issued a recommended decision, finding that the Respondent willfully committed all the violations charged, and acted "with knowledge that such acts were a violation of Illinois law [and] with the intent to deceive the voters of Oak Lawn High School District 229." The State Board of Elections entered an order adopting the findings of the hearing officer. The Respondent appealed and Appellate Court affirmed on December 26, 2002. Brennan v. Illinois State Board of Elections, 336 Ill. App. 3d 749, 784 N.E.2d 854 (1st Dist.).

On October 5, 2005, the Respondent filed an Answer to the Disciplinary Complaint in which he admitted some of the factual allegations of the Complaint, denied others, and denied all of the charges of misconduct.

THE EVIDENCE

The Administrator presented the testimony of David Zapata and called the Respondent as an adverse witness. The Administrator's Exhibits 1 through 7 and 9 were received into evidence. (Tr. 6, 313-14) The Respondent testified in his own behalf, and he presented the testimony of

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Russell Miller, Robert Streit, Daniel Kelley, Margaret Rose Kelley, Patrick J. O'Malley, and Stephen Joseph Mudjer. The Respondent's Exhibit 1 was received into evidence. (Tr. 7)

The Respondent

The Respondent testified that he was licensed to practice law in 1987. He had a solo practice and then was corporate counsel for Wire Cloth Products. In 1990 he became deputy counsel for the State of Illinois Department of Financial Institutions. He remained in that position until 1998. He was then the managing attorney for Professional National Title Network (PNTN). He remained at PNTN until 2005. In 2001, he was also of counsel at the law firm of Brooks, Adams and Tourilis. From 2005 to the present, he has been employed by Zausa Deveopment Corporation, where he primarily does title work. (Tr. 18-21, 95-96, 120-21)

In the years 2000 and 2001, the Respondent was the attorney for the School Board of District 229, in Oak Lawn. In 2001, his net income from that position was about $10,000 to $12,000. His income from PNTN during that year was about $95,000 to $100,000. He is no longer the attorney for the school board. (Tr. 23-24, 92-93, 115, 124, 129)

The Respondent said he has been "heavily involved in politics," and involved in about 500 to 1000 campaigns. He was the chairman and treasurer of 9 or 10 political committees. While serving it those positions, he filed reports with the State Board of Elections. He noted that there was a "complete rewrite of the Election Code as to disclosures" in about January 2000, and that he did not serve as chairman or treasurer of any political committee from the time of the statutory change until he became chairman and treasurer of the Committee to Stop the Hurckes Four in April 2001. He said he did not consider himself an expert on election law, and was not aware of the exact statutory changes made in about 2000. (Tr. 21-23, 67-68, 89)

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The Respondent explained that in Oak Lawn there are two political factions. In January 2001, the majority of the school board, as well as the Respondent, were in one faction, while a man named Jerry Hurckes, who worked for a Congressman, was in the other. Four seats on the school board were to be elected at the election of April 3, 2001. Four of the candidates were supported by Hurckes. The Respondent believed that if Hurckes' candidates were elected, a majority of the school board would be in Hurckes' political faction, and the Respondent would be replaced as attorney for the School Board. In February 2001, the president of the school board, Jerry Vahl, the Respondent, three favorable candidates for the seats on the school board, and others attended meetings and discussed ways to oppose Hurckes' candidates. A decision was made to have a videotape prepared in opposition to Hurckes' four candidates. (Tr. 25-29, 32)

The Respondent contacted First Light Productions, received a bid for the production of the videotape (Adm. Ex. 7), and then advised First Light to proceed. First Light prepared the videotape along with copies. The videotape was played at a meeting of those opposed to Hurckes' candidates. The Respondent identified the names of some of the people present at that meeting, including Jerry Vahl and Jim Nelepa. On March 14, 2001, First Light submitted a billing invoice for $10,115.50 to the Respondent. (Adm. Ex. 4) On the same day or the following day, the Respondent paid First Light the full amount of the invoice with a check from his personal checking account. (Adm. Ex. 5; Tr. 30-34)

In order to have the videotape distributed, the Respondent contacted TC Marketing. He had a prior relationship with TC, and had an account with the company. TC distributed the videotapes prior to the election, and on about March 23, 2001, the Respondent paid TC $1,249.60. The Respondent said someone from TC told him the amount due, and he authorized

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that amount to be taken out of his account at TC. He also said that he did not receive the actual bill (Adm. Ex. 6) until later. (Tr. 34-36, 41, 69-70, 108, 112, 114)

The Respondent contended that the amounts he paid to First Light and to TC were loans to the political committee. He said "everybody" involved in the meetings, such as Jerry Vahl and Linda Flanagan, knew the funds were a loan from the Respondent. The plan was to repay the loan by having a fundraiser after the election. However, the problems with the Election Board arose and no fundraiser was held. (Tr. 37-38, 55-56, 64, 70-72)

On about March 14, 2001, the Respondent spoke with Jim Nelepa about Nelepa serving as chairman and treasurer of the Committee to Stop the Hurckes Four (Committee). The Respondent said that Nelepa agreed to do so. The Respondent did not turn any records over to Nelepa. He explained that the records consisted of only the bid and invoice from First Light, and that Jerry Vahl had those documents. A few days later, Nelepa called the Respondent and said he did not want to serve as chairman or treasurer. However, Nelepa recommended David Zapata to serve in those positions for the Committee. The Respondent was aware that Zapata had been campaign manager of Nelepa's unsuccessful campaign for congress. (Tr. 38-42, 63, 69-70, 78-81, 107)

On about March 18 or 19, 2001, the Respondent called David Zapata, who was expecting his call. During their conversation Zapata agreed to be chairman and treasurer of the Committee. Zapata asked the Respondent to fill out the Board of Elections Form D-1, Statement of Organization, and bring it to his office. The Respondent filled out the form, except for the signature, date, and Zapata's telephone number, and took it to Zapata's office on March 29, 2001. The Respondent said that Robert Streit accompanied him to Zapata's office. When the Respondent arrived at Zapata's office, Zapata printed his telephone number and the date on the

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form, and signed it. (Adm. Ex. 1) The Respondent also said that he told Zapata about the expenditures made to First Light and TC marketing pertaining to the videotape, but did not provide any documents to Zapata. At the end of their meeting, Zapata asked the Respondent to file the Form D-1, which the Respondent did the following day. (Tr. 45-47, 49, 50, 67, 76-77, 81-84, 112, 124)

The Respondent acknowledged that he did not list himself as a "sponsoring entity" on the above Form D-1. He said that he was not aware of what "sponsoring entity" meant under the Election Code at that time. He explained that he "thought [it] related to corporations and unions who were putting money into campaigns." He is now aware that a "sponsoring entity" means anyone who provides a third of the funding. However, he said he still thinks there is a distinction between someone giving money to a campaign and someone, as in his case, who loans money to a campaign. (Tr. 37-38, 47)

The Respondent also acknowledged that he stated on the Form D-1 that the Committee was created on March 26, 2001 (Adm. Ex. 1, p. 1), and he now understands that the Committee was actually created earlier. In March 2001, he thought the Election Code provided that the "actual formation of a political committee" occurred "ten days after you've actually expended" $3,000 or more. Since the payment to First Light was on March 16, he listed the date the Committee was created as March 26. He was subsequently told by the Election Board that a political committee is formed on the date the money is expended, and then the treasurer has five business days to file the Form D-1. (Tr. 36-37, 47-48, 70, 74-76. 110-11, 121)

According to the Respondent, it was the responsibility of the Committee treasurer, who was David Zapata, to file the Form D-1 and ascertain its accuracy. Nevertheless, he maintained that, at the time he filed the Form D-1 (Adm. Ex. 1), he thought it was accurate. He said he

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wished that he had a better understanding of the Election Code in 2001 and had prepared the form correctly. (Tr. 74-76, 102-03, 105-06)

Sometime in April 2001, David Zapata decided to resign as chairman and treasurer of the Committee. The Respondent then agreed to serve in those positions. On April 27, 2001, the Respondent filed an amended Form D-1, identifying himself as the chairman and treasurer. (Adm. Ex. 2) The Respondent did not make any other changes from the initial Form D-1. Consequently, the amended form contained the same incorrect date for the creation of the Committee and there was no mention of a "sponsoring entity." The Respondent acknowledged that, as the treasurer, he was responsible for the accuracy of the amended Form D-1. He contended that he did not intentionally include any incorrect information on it, but that the incorrect information was simply a "mistake" on his part. (Tr. 53-54, 56-57, 85, 103, 110)

On June 18, 2001, the Respondent filed with the State Board of Elections a Form D-2, a report of campaign contributions and expenditures. (Adm. Ex. 3) On this form, he accurately listed his payments to First Light and to TC Marketing, which totaled $11,365.10, as loans to the Committee. (Tr. 54-55, 75)

Near the end of March 2001, the Respondent received a telephone call from Sarah Gadola, a reporter for the Daily South Town newspaper. He noted that his political faction had an adversarial relationship with the newspaper and Ms. Gadola. He said that, during their telephone conversation, Gadola asked him if he had "produce[d]" the videotape pertaining to the Herckes' candidates. He replied "no, I didn't." He explained that he made the foregoing reply "because I didn't produce it, First Light produced it." He further testified that Ms. Gadola did not asked him if he was involved with the videotape, but only whether he was "involved in the

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production" of it. However, the Respondent acknowledged that he was "playing a game" with the reporter, and should have more "candid" with her. (Tr. 50-53, 85-89)

The State Election Board initially filed a complaint against David Zapata and the Committee to Stop the Hurckes Four, alleging violations of the Election Code. After a preliminary hearing was held, an amended complaint adding the Respondent was filed in August 2001. The Respondent contended that his prosecution by the Election Board was "politically motivated." Following an administrative hearing, where the burden of proof was preponderance of the evidence, the hearing officer found that the Respondent was the "de facto chairman" of the Committee and had "violated the Election Code by not filing the disclosure reports earlier." The hearing officer recommended that the Respondent, Zapata, and the Committee each pay a $10,000 fine. The Respondent said that there is no mention of "de facto chairman" in the Election Code, and that he had never before heard of a "de facto chairman." (Tr. 57-58, 94, 100, 118-19)

The State Board of Elections adopted the findings of the hearing officer, but the recommended fine against him was removed. The Respondent appealed to the Appellate Court, and the decision of the Board of Elections was affirmed. (Brennan v. Illinois State Board of Elections, 336 Ill. App. 3d 749, 784 N.E.2d 854) The Respondent said that he believes the Appellate Court "made a mistake" because there is no such thing as a "de facto chairman." (Tr. 58-59, 94-95, 119-20)

David Zapata

David Zapata testified that he was sent from New York to Illinois "to do field in 1996 for the Republican Congressional Committee from a media standpoint." He became involved in the congressional campaign of Jim Nelepa, who was running against Bill Lipinski. A man named

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Jerry Hurckes was on Lipinski's congressional staff. Zapata's title became "campaign manager" for Nelepa. (Tr. 147-48)

In March 2001, Jim Nelepa called Zapata and asked him to become involved in a school board campaign. Nelepa told him that the Respondent would contact him about it. Zapata acknowledged that he was made aware that Hurckes was involved on the other side of the campaign. Zapata agreed to help on the campaign as a favor to Nelepa. A few days later, the Respondent telephoned Zapata, asked to stop by his office, and brought some documents. Zapata said he did not recall anyone coming to his office with the Respondent. The documents included the Form D-1 for the Committee to Stop the Hurckes Four. (Adm. Ex. 1) Zapata said that the Respondent asked him to sign the form. Zapata acknowledged that he signed the form, and placed the date and a telephone number on the form. (Adm. Ex. 1, p. 2) However, Zapata said the telephone number he placed on the form was not his, and he did not know whose it was. (Tr. 142-44, 146-47, 154, 160-62)

Zapata denied asking the Respondent to fill out the Form D-1 or to file it with the Election Board. Zapata also stated that he and the Respondent did not discuss any expenditures on behalf of the Committee. He further stated that he did not perform any tasks as chairman or treasurer for the Committee and that his entire interaction with the Respondent consisted of "four or five minutes at the most." (Tr. 144-45, 159)

When asked if the Form D-1 (Adm. Ex. 1) had been filled out, except for his signatures, the date and his telephone number, when the Respondent brought it to his office, Zapata replied "I can't answer that. I don't think so." He went on to say that "I believe I did" sign a "blank form." (Tr. 161-62)

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Zapata acknowledged that in March 2001, he resided at 1350 North Wells, apartment C-200, in Chicago. He added that he did not consider himself an Illinois resident because he had just moved from New York and was still voting in New York. (Tr. 145)

On cross-examination, Zapata said that he did not have an opinion about Jerry Hurckes and "I have never met him." Zapata then acknowledged that he told a reporter that "Hurckes represented everything that people have come to resent about political campaigns." (Tr. 149-50)

Finally, Mr. Zapata testified he did not recall calling the Respondent and stating he wanted to be removed as chairman and treasurer of the Committee. (Tr. 155-56)

Robert Streit

Robert Streit testified that he has been a village trustee in Oak Lawn since 1991, having been elected four times. He discussed the politics in Oak Lawn, including the School Board for District 229. (Tr. 167-68, 171-73)

He has known the Respondent since 1989 and they are friends. In 2001, the Respondent was the attorney for the school board in Oak Lawn. A man named Jerry Hurckes, who was chief of staff for a Congressman, "ran a slate of candidates" for the school board positions to be elected at the April 2001 election. The Respondent, as well as Streit, opposed Hurckes' candidates. Streit said it was anticipated that the Respondent would not continue as the attorney for the school board if Hurckes' candidates won. (Tr. 168-73, 178-81)

Streit further stated that he accompanied the Respondent to the office of David Zapata in late March 2001. The Respondent had informed Streit that Zapata was going to be treasurer of the Committee to Stop the Hurckes Four, and the Respondent needed to take a campaign disclosure form to Zapata. At that time, Streit understood that Jim Nelepa was the treasurer of the Committee and had recommended Zapata to replace him. (Tr. 173-74, 184-85)

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Streit said that he was present when the Respondent met with Zapata. He said they discussed the Form D-1 (Adm. Ex. 1), which the Respondent had filled out before they came to the office. Zapata appeared to "read over the form" and then signed it. Streit said that the Respondent mentioned some expenditures. He recalled the mentioning of an expenditure to a "company called TC Marketing" and that "Mr. Zapata would have to report [the expenditures] as the treasurer." Streit also said that, while the Respondent discussed the expenditures, Zapata was writing on a Form D-2 or other type of campaign disclosure form. He acknowledged that he did not know "exactly what the form was." There was a discussion about the need to file the Form D-1 "right away" and that the form listing expenditures "could be filed after the election." Zapata asked the Respondent to file the Form D-1, and the Respondent took the form when he left. The Respondent did not take the form on which Zapata had been writing. (Tr. 174-78, 182, 185-87, 190-91)

On cross-examination, Mr. Streit was asked whether he mentioned Mr. Zapata "writing any expenditures on" any form during his testimony before the State Election Board in 2001. Streit replied that he did not. On redirect examination, Streit stated that "nobody asked me" during his previous testimony what Zapata wrote on at the meeting with the Respondent. (Tr. 190-91)

David Kelley

David Kelley, an attorney since 1989, testified about his background in the area of Illinois election law, and his resume (Resp. Ex. 1) was received into evidence. Mr. Kelley was accepted as an expert witness. (Tr. 7, 194-99)

Kelley discussed pertinent provisions of the Election Code and the Respondent's case before the State Board of Elections, in which the Respondent was found to have willfully

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violated provisions of the Election Code. He voiced the opinion that the entire proceeding against the Respondent was "problematic" and "highly unusual." He noted that the initial complaint was filed in May 2001 against David Zapata and the Committee to Stop the Hurckes Four. It was not until August 2001, after a preliminary hearing was held, that an amended complaint was filed against the Respondent. He said that "some issues of importance" had already been resolved in the Respondent's absence. He mentioned, for example, the possible recusal of the hearing officer and the filing of a motion to get a different hearing officer. He also noted that the record before the Election Board was silent about whether the Board had sent a Form D-5 to the Committee to Stop the Hurckes Four. The Form D-5 is sent to a committee with an "election calendar" that indicates what forms need to be filed and when. In other words, it puts people on notice of the rules. Other concerns voiced by Kelley included that "there seemed to be a very urgent rush to get [the matter] closed;" that there was a factual finding in which "one witness was given total deference in weight and the other person and a half-dozen witnesses [were found] incredible and can't be believed;" and that the hearing officer determined that the Respondent was "de facto chairman" of the Committee even though there was no provision in the Statute or other precedent for a "de facto chairman." (Tr. 203-14, 240, 251-54, 259-60)

Kelley acknowledged that the full State Board of Elections upheld the findings of the hearing officer in the Respondent's case, and that the Appellate Court then affirmed. (Tr. 240-41)

Kelley explained that, under the Election Code, only the treasurer or chairman is responsible for filing forms with the Election Board. He believed that, in regard to the Committee to Stop the Hurckes Four, David Zapata was the treasurer and chairman in March 2001, when the initial Form D-1 (Adm. Ex. 1) was filed, and that Zapata remained in those

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positions until April 27, 2001. The Respondent became treasurer and chairman on April 27, 2001, when he filed the amended Form D-1 (Adm. Ex. 2) listing himself in those positions. Consequently, the Respondent had no responsibility to file any forms prior to April 27, 2001. (Tr. 216-18, 234-35, 244, 261)

Kelley said he had never seen the term "de facto chairman" used in any proceeding under the Election Code prior to the Respondent's case. He said the term is not mentioned in the Election Code and was not used in any Illinois court opinion prior to the Appellate Court opinion pertaining to the Respondent. He also noted that, subsequently, a federal court held there was no such position as "de facto treasurer" under the federal campaign disclosure law (Federal Election Commission v. Tolendano, 317 F.3d 393, 945, 947 (9th Cir. 2002)). Kelley indicated that the federal disclosure law is "not identical," but "analogous" to the Illinois law. (Tr. 213-14, 236-37, 243)

Kelley said that he is aware of about six political committees that have filed a Form D-1 containing incorrect dates for the creation of the committee, and that there was no prosecution by the Election Board. Similarly, Kelley said that Form D-1 is "frequently" filed "late" by political committees, and that, other than in the Respondent's case, he is aware of no prosecution for a late filing by the Election Board. He also noted the Election Board determined that the Respondent's violations were willful, but that there is no definition of willful in the Election Code or in previous Illinois Court opinions. He also said that the Election Board "impute[d]" knowledge of the reporting rules to the Respondent, but "I'm not sure that they proved it." Kelley mentioned a federal court decision that defined willfulness as "some form of trickery, deceit or chicanery" (United States v. Curran, 20 F.3d 560, 566 (3d Cir. 1994)). The foregoing

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decision was not mentioned at the Board of Elections hearing in the Respondent's case. (Tr. 214-15, 223-26, 243, 256)

Kelley explained that, under the Election Code, a political committee is created when there is an expenditure of more than $3,000 to or by the committee, candidate or other group (10 ILCS 5/9-1.7). Once a committee is created, the treasurer is required to file certain reports or forms within certain time periods (10 ILCS 5/9-2). The first form that must be filed is Form D-1, Statement of Organization. The Election Code provides for two time periods for filing the Form D-1, depending on when the committee was created. If a committee is created by accepting a contribution of or expending over $3,000 within then 30-day period before the election, the Form D-1 must be filed within 5 business days of its creation. If the committee was created beyond the 30-day period before the election, the Form D-1 must be filed within 10 business days of its creation (10 ILCS 5/9-3). Thus, Kelley explained, when the Respondent expended over $3,000 on behalf of the Committee to Stop the Hurckes Four on either [Thursday] March 15 or [Friday] March 16, 2001, the Form D-1 (Adm. Ex. 1) was required to be filed by March 22 or 23, which was about 5 or 6 business days before it was actually filed. (Tr. 218-19, 233-34, 256-58)

Kelley emphasized that it is the responsibility of the treasurer to file the forms with the Election Board. A person who makes a contribution or loan to a committee is not required to file a report with the Election Board, but is only required to report it to the committee treasurer (10 ILCS 5/9-6). Kelley also noted that some political committees have filed a Form D-1 before any expenditure has been made, while others wait until over $3,000 has been contributed or expended before doing so. (Tr. 234, 256-57, 261)

The time period for filing the Form D-1 was changed by an amendment to the Election Code, effective January 1, 1998. Prior thereto, the Form D-1 had to be filed within "30 days" of

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the date the committee was created. However, the amendment changed the time period to within "10 business days" for a committee created more than 30 days before the election, and within "5 business days" for a committee "created within 30 days before an election" (P.A. 90-495). Kelley noted that the Respondent had previously served as treasurer of political committees and had filed forms on their behalf. However, all but one of the Respondent's filing had been prior to the above amendment to the Election Code, and the one filed later "didn't seem to be in conflict with any of the statutes as amended." (Tr. 218-22, 237)

Kelley also discussed the provision in the Election Code (10 ILCS 5/9-10(b-5)) that requires the treasurer of a committee to report any contribution of more than $500 within 2 business days after receipt of the contribution. (Tr. 227-29, 246-47, 255)

The Election Code effective in 2001 defined "sponsoring entity" as any person who "contributes 33% of the total funding of the political committee," and required that the name of any "sponsoring entity" be included in the name of the committee on the Form D-1 (10 ILCS 5/9-3). Kelley pointed out that the foregoing definition and requirement were added to the Election Code by an amendment effective on January 1, 1999 (P.A. 90-737). Prior to the amendment, the Election Code did not mention "sponsoring entity." Kelley voiced the opinion that the foregoing provision could apply to loans as well as to contributions. He also noted that the Form D-1 has not been revised following the change in January 1999, and that the Form D-1 itself does not indicate that the name of a "sponsoring entity" is to be listed. (Tr. 231-32, 248-50, 262-63)

The Election Code provides that no contribution shall be accepted by and no expenditure be made by or on behalf of a political committee "at a time when there is a vacancy in the office of chairman or treasurer thereof" (10 ILCS 5/9-2). Kelley said that the applicability of the

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foregoing provision to newly created committees is "nebulous." He explained that a person becomes chairman or treasurer at the time the Form D-1, Statement of Organization, is filed (10 ILCS 5/9-3(d)). The Election Code also provides that a political committee is created when there is a contribution to or expenditure of more than $3,000 by the committee (10 ILCS 5/9-1.7), and that, as applicable to this case, within 5 business days after the contribution or expenditure the Form D-1 must be filed. According to Kelley, "first you have to spend $3,000 to have the law apply, but until you spend the $3,000, you are not looking to have somebody to harness as treasurer;" thus, it is not improper to make an expenditure before the date the Form D-1 is filed naming a treasurer and chairman. Kelley noted that some people "won't file [a Form D-1] until they cross the dollar threshold and now their obligation kicks in." (Tr. 238, 242-44, 256-57)

Finally, Kelley pointed out that Form D-2 was filed by the Respondent, for the Committee to Stop the Hurckes Four, on June 18, 2001 (Adm. Ex. 3), and that it was timely filed. Loans to a committee are to be reported on a Form D-2, and the Respondent did so in this case. (Tr. 226-27, 232-33, 247-48)

Russell Miller

Russell Miller testified that he as been an attorney since 1978 and is in private practice. He said he has known the Respondent for about 17 years and that the Respondent has a good reputation for truth and veracity. (Tr. 131-34)

Margaret Rose Kelley

Margaret Rose Kelley testified that she is an attorney and is employed by the City of Chicago as senior counsel in the Department of Law. She has known the Respondent since 1992, and was his boss for about seven years at the Illinois Department of Financial Institutions. Ms. Kelley said that the Respondent has a very good reputation for truth and veracity. (Tr. 265-69)

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Patrick O'Malley

Patrick O'Malley testified that he has been an attorney since 1986 and is in private practice. He has known the Respondent for over twenty years. Mr. O'Malley said that the Respondent's reputation for truth and veracity is outstanding. (Tr. 270-74)

Stephen Joseph Mudjer

Mr. Mudjer testified that he is the managing partner of Triad Automotive in Oak Park. He has known the Respondent for about seven years. They met when their sons were in little league baseball. Mr. Mudjer described some of the Respondent's activities in the community. (Tr. 275-81)

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The Administrator has the burden of proving the charges of misconduct by clear and convincing evidence. In re Storment, 203 Ill. 2d 378, 390, 786 N.E.2d 963, 969 (2002). This standard of proof requires a high level of certainty, which is greater than a preponderance of the evidence (i.e., more probably true than not true) but not as great as proof beyond a reasonable doubt. Bazydlo v. Volant, 164 Ill. 2d 207, 213, 647 N.E.2d 273, 276 (1995); People v. Williams, 143 Ill. 2d 477, 484-85, 577 N.E.2d 762, 765 (1991).

In determining whether the burden of proof has been satisfied, the Hearing Panel has the responsibility of assessing the credibility and believability of the witnesses, weighing conflicting testimony, drawing reasonable inferences from the evidence, and making factual findings based upon all the evidence. In re Howard, 188 Ill. 2d 423, 435, 721 N.E.2d 1126, 1133 (1999); In re Ring, 141 Ill. 2d 128, 138-39, 565 N.E.2d 983, 987 (1991). In assessing the evidence, the Hearing Panel is not required to be "nave or impractical" or to believe testimony that is "beyond human experience," "an unreasonable story," or "an inherent improbability." In re Discipio, 163

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Ill. 2d 515, 523-24, 645 N.E.2d 906, 910 (1994); In re Holz, 125 Ill. 2d 546, 555, 533 N.E.2d 818, 821 (1989); Tepper v. Campo, 398 Ill. 496, 504-05, 76 N.E.2d 490, 494 (1948).

Also, the Hearing Panel is in a position to judge credibility and weigh conflicting testimony because it is able to "see the witnesses [and] observe their demeanor." In re Samuels, 126 Ill. 2d 509, 526, 535 N.E.2d 808, 814 (1989); In re Spak, 188 Ill. 2d 53, 66, 719 N.E.2d 747, 754 (1999).

With the above principles in mind, and after carefully considering the testimony and exhibits, we make the findings set out below.

The charges of misconduct in this matter arose out of the Respondent's involvement in a political committee relating to a school board election in Oak Lawn in 2001. The undisputed facts are that the Respondent was the attorney for the school board in Oak Lawn. Four members of the school board were to be elected at an election to be held on April 3, 2001. Four candidates were supported by a person named Jerry Hurckes, who was in a political faction that opposed the current majority of the board and the Respondent. The Respondent anticipated that if Hurckes' candidates were successful, the Respondent's faction of the political party would no longer have the majority of seats on the school board and the Respondent would be replaced as the attorney for the school board. Commencing in February 2001, the Respondent, the current president of the school board, and others attended meetings and discussed ways to defeat Hurkes' candidates. A decision was made to have a videotape prepared in opposition to Hurckes' four candidates. The Respondent received a bid from First Light Productions (Adm. Ex. 7), and he then told First Light to proceed with the production of the videotape. First Light prepared the videotape and, on March 14, 2001, sent a bill to the Respondent (Adm, Ex. 4). On the following day, the Respondent paid First Light the full amount of the bill, $10,115.50, with a check from his own

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bank account (Adm. Ex. 5). On March 23, 2001, the Respondent paid another company, TC Marketing, $1, 249.60 for distributing the videotape to voters in the school district.

The Respondent prepared a Form D-1, statement of organization, for the "Committee to Stop the Hurckes Four" (Committee). The form listed David Zapata as chairman and treasurer of the Committee. Zapata signed the Form D-1, placed the date, March 29, 2001 thereon, and placed a telephone number in the box provided for the telephone number of the chairman and treasurer. (Adm. Ex. 1, p. 2) The Respondent then filed the Form D-1 with the State Board of Elections on March 30, 2001.

No other forms or reports were filed with the State Board of Elections on behalf of the Committee until April 27, 2001,when the Respondent filed an amended Form D-1 listing himself as chairman and treasurer (Adm. Ex.2). Except for the change in chairman and treasurer, the amended form contained the same information as the initial form. On June 18, 2001, the Respondent timely filed a Form D-2 that listed the payments he had made to First Light and to TC Marketing, which totaled $11,365.10, and described the payments as loans to the Committee (Adm. Ex. 3).

In May 2001, the State Board of Elections filed a complaint against Zapata and the Committee, alleging violations of the Election Code. In early August 2001, an amended complaint was filed, adding the Respondent and charging him with having violated the Election Code. A proceeding was held before a hearing officer; the hearing officer issued a written report of findings and recommendations on October 5, 2001; the State Board of Elections, in October 2001, adopted the hearing officers findings; the Respondent appealed to the Appellate Court; and, in December 2002, the Appellate Court affirmed the decision of the Elections Board that the

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Respondent had willfully violated certain provisions of the Election Code. See Brennan v. Illinois State Board of Elections, 336 Ill. App. 3d 749, 784 N.E. 854 (1st Dist. 2002).

An attorney convicted of a criminal offense is frequently charged under ethical Rule 8.4(a)(3) with having committed a criminal act that reflects adversely on his or her honesty, trustworthiness, or fitness as an attorney in other respects. (i.e. In re Scarnavack, 108 Ill. 2d 456, 485 N.E.2d 1 (1985) (possession of cocaine); In re Jorgansen, 99 CH 109, M.R. 16996 (November 22, 2000) (battery)). In those situations, the criminal conviction is "conclusive evidence of the respondent's guilt and that grounds for the imposition of discipline exist." In re Ciardelli, 118 Ill. 2d 233, 239, 514 N.E.2d 1006 (1987). A conviction is "conclusive evidence" because the standard of proof in criminal cases (beyond a reasonable doubt) is higher than in disciplinary cases (clear and convincing evidence), and there are sufficient safeguards in criminal proceedings so that the Supreme Court "can more confidently rely on a criminal conviction as resting on accurate factual findings." In re Owens, 125 Ill. 2d 390, 400-01, 532 N.E.2d 248, 252 (1988). However, the Supreme Court has declined to permit the conclusive use of a civil action, including the "factual findings in a civil fraud case," at an attorney disciplinary proceeding. Owens, 125 Ill. 2d at 401, 532 N.E. 2d at 252. Nevertheless, a Hearing Panel is permitted to consider the findings and judgment in a civil case as part of the overall evidence. See In re Owens, 144 Ill. 2d 372, 378-79, 581 N.E.2d 633, 636 (1991).

Consistent with the above principles, the Administrator did not charge in this matter that the findings by the State Board of Elections, that the Respondent willfully violated provisions of the Election Code, in itself, established an ethical violation. Rather, as more specifically described below, the Disciplinary Complaint charged that the Respondent engaged in dishonesty, fraud, and deceit, in violation of Rule 8.4(a)(4), and thereby tended to bring the administration of

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justice or the legal profession into disrepute, by making expenditures not authorized by the Election Code, and by preparing and filing certain forms with the State Board of Elections that contained false or misleading information. (Complaint, par. 30).

In order to establish dishonesty, fraud, or deceit under Rule 8.4(a)(4), the Administrator is required to prove scienter on the part of the attorney. That is, the evidence must clearly and convincingly prove that the attorney knew the statements he or she made were false, or acted so recklessly as to be considered knowing, and that the attorney made the false statements with the intent to defraud or deceive. Thus, "negligence," "carelessness," "lack of attention," or "conscious indifference" is insufficient to prove a violation of Rule 8.4(a)(4). See In re Witt, 145 Ill. 2d 380, 390-91, 583 N.E.2d 526, 531-32 (1991); In re Johnson, 133 Ill. 2d 516, 529, 552 N.E.2d 703, 709 (1990); Gerill v. Hargrove, 128 Ill. 2d 179, 193, 538 N.E.2d 530, 536 (1989); In re Jakabowski, 93 CH 455, Review Board Report at 16-18 (Review Board Report approved in M.R. 12728, September 24, 1996); In re White, 98 CH 42, Review Board Report at 8-9 (leave to file exceptions to Review Board Report denied in M.R. 17246, March 22, 2000); In re Kaplan, 03 CH 84, Review Board Report at 4-5 (petition to file exceptions allowed and the Supreme Court imposed a sanction different than that recommended by the Review Board in M.R. 20441, November 22, 2005).

We note that intent and motive need not be, and seldom are, proved by direct evidence. Rather, they are usually proved by circumstantial evidence, that is, by the reasonable inferences arising from the conduct and surrounding circumstances. See In re D'Angelo, 126 Ill. 2d 45, 56-57, 533 N.E.2d 861, 866 (1988); In re Odom, 01 CH 69, Review Board Report at 6 (leave to file exceptions to Review Board Report denied in M.R 19772, May 19, 2005). However, suspicious

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circumstances are not sufficient to prove misconduct. See In re Winthrop, 219 Ill. 2d 526, 550, 848 N.E.2d 961, 976 (2006).

The asserted motive for the Respondent to omit information from or provide false information on the campaign disclosure forms was to conceal his involvement with the Committee to Stop the Hurckes Four, in order to maintain his position as attorney for the school board in the event the Hurckes candidates were successful. (Tr. 10, 283, 287-88, 302) We agree that the Respondent had motive to want to maintain his position as the attorney for the school board because he received about ten to fifteen per cent of his total annual income from that position. (Tr. 92-93, 129, 283, 302) However, we find that the Respondent had little, if any, motive to conceal his involvement in the above Committee or the campaign to oppose Hurckes' school board candidates in the circumstances of this case.

The evidence showed that the Respondent was "heavily involved in politics" and was in the political faction that opposed the faction that Hurkes was in. The Respondent had been appointed attorney for the school board by the majority of the board, who was aligned with the Respondent. Hurckes was opposed to the majority of the school board and, thus, was supporting four candidates who, if elected, would form a new majority on the board. The Respondent anticipated that he would be replaced as attorney for the board if Hurckes' candidates were successful. This appeared to be well-known in Oak Lawn. (Tr. 26-28, 32, 42, 170-72, 303) For example, Robert Streit, a village trustee, testified that "becoming the attorney for the school board is a political process" and "it was anticipated that if [Respondent's] people lost the election, he would not be the school board attorney any more." (Tr. 172) We also note that the Respondent attended meetings to discuss ways to defeat Hurckes' candidates (Tr. 28-29); he paid for the production of the videotape with a personal check, rather than paying by cash or other

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method not directly traceable to him (Adm. Ex. 5); he filed a Form D-1 in late April 2001 identifying himself as chairman and treasurer of the Committee to Stop the Hurckes Four (Adm. Ex. 2); and in June 2001, he filed a Form D-2 on which he disclosed his payments on behalf of the Committee (Adm. Ex. 3; Tr. 226-27). Based upon the evidence, the Respondent would benefit little by falsifying election disclosure forms.

A. Expenditures on behalf of a political committee when there is a vacancy in the office of chairman or treasurer

In regard to the specific violations of the Election Code, it was first charged that the Respondent engaged in dishonesty and deceit by contributing to or making expenditures on behalf of the Committee to Stop the Hurckes Four at a time when there was a "vacancy" in the office of chairman and treasurer, in violation of 10 ILCS5/9-2. (Complaint, par. 12-13, 30)

The Appellate Court affirmed the Board of Elections finding that the Respondent violated the above provision by making a payment to First Light, on March 15, 2001, and to TC Marketing, on about March 23, 2001. There was a violation because, when the foregoing payments were made, there had been no chairman or treasurer named on the Form D-1, Statement of Organization, which was not filed until March 30, 2001. See Brennan, 336 Ill. App. 3d at 758, 763-64, 784 N.E.2d at 861, 866.

Based upon the testimony presented and the language of the Election Code itself, we find it reasonable for the Respondent to have believed, at the time, that he was not violating the Election Code by making the payments to First Light and TC Marketing. It is apparent that a chairman and treasurer are initially named by the filing of a Form D-1. (10 ILCS 5/9-3; Adm. Ex. 1; Tr. 217) The Election Code also provides that a political committee is created "when it accepts contributions or makes expenditures exceeding $3,000" (10 ILCS 5/9-1.7), and that the political committee "shall file a statement of organization within 10 [or 5] business days

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of the creation of such committee" (10 ILCS 5/9-3). It seems to us that, in the absence of judicial precedent or instructional guideline, a person in the Respondent's position at the time could have reasonably concluded, from the plain language of the Election Code, that it is proper to contribute to or make expenditures for a political committee before a chairman and treasurer are first named by the filing of a Form D-1, Statement of Organization. The Election Code indicates that the Form D-1 can be filed 5 or 10 days after the committee is created, which is when the contribution or expenditure is made. Expert witness Daniel Kelley testified that this is a "nebulous area" and that he did not believe it was improper to make a contribution or expenditure before the Form D-1 is filed. He also noted that political committees have, in fact, waited until after contributions or expenditures were made before filing the Form D-1. (Tr. 242, 244, 257) The Respondent also voiced the belief that an expenditure could properly be made on behalf of a committee before the Form D-1 is filed. (Tr. 47-48, 74)

Consequently, we were not presented with clear and convincing evidence that the Respondent knew, when he made the contribution to or expenditure for a political committee, there was a "vacancy" in the office of chairman or treasurer, or that he made a contribution or expenditure with the intent to deceive.

We recognize that the Election Board found that the Respondent acted "willfully" when he violated the above section, and other sections, of the Election Code. (See Brennan, 336 Ill. App. 3d at 758, 763-64, 784 N.E.2d at 861-62, 866) However, the standard of proof at the proceedings before the Election Board was preponderance of the evidence (Tr. 60, 95), which is significantly less than the clear and convincing standard of proof in disciplinary proceedings. Also, in concluding that the record supported the finding that the Respondent's filing of false or incomplete information was "willful" under section 9-26 of the Election Code, the Appellate

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Court stated "[s]ection 100.90 of the Illinois Administrative Code, which interprets section 9-26, provides the Board will view any attempt to circumvent the clear intentions of the Election Code by means of subterfuge as a violation of the Election Code." (Brennan, 336 Ill. App. 3d at 765, 784 N.E.2d at 867) Thus, the proof required to establish "willful" conduct under the Election Code appears to be significantly less than that required to establish dishonesty, fraud, or deceit under Rule 8.4(a)(4).

B. Disclosure of sponsoring entity

The Complaint also charged that the Respondent engaged in dishonesty and deceit by not disclosing on the Form D-1, which he prepared and filed, that he was a "sponsoring entity," as required by 10 ILCS 5/9-3(a). (Complaint, par. 17-18, 30) The Respondent testified that he had been chairman and treasurer of political committees in the past and had filed forms with the State Board of Elections. He also explained that he had held those positions before the Election Code had been amended, and that he was unaware of what a "sponsoring entity" meant or that it needed to be listed on the Form D-1. (Tr. 21-23, 37-38, 47) As testified by David Kelley, an expert on the Election Code, the definition of "sponsoring entity," which includes any individual who contributes at least 33% of the total funding of the political committee, and the requirement that the "sponsoring entity" be included in the name of the political committee on the Form D-1, were added to the Election Code (10 ILCS 5/9-3) by Public Act 90-737, which became effective on January 1, 1999. He also pointed out that Form D-1 has not been revised since the foregoing amendment, and does not mention "sponsoring entity" or indicate that it is to be listed thereon. (Tr. 231-32, 248-50, 262-63; Adm. Ex. 1) Mr. Kelley also pointed out that, while the Respondent had previously served as treasurer of political committees and had filed forms on their behalf, all but one of his filing were prior to the foregoing amendment. The Respondent's only filing after

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the amendment, and prior to this matter, was not related to the subject of the amendment. (Tr. 218-22, 237)

In light of the evidence, we conclude that the Respondent or anyone acting in good faith in similar circumstances could have mistakenly failed to list a "sponsoring entity" on the Form D-1 or amended Form D-1. Thus, we were not presented with clear and convincing evidence that the Respondent knowingly made the omission or did so with the intent to defraud or deceive.

The Respondent certainly should have reviewed the current provisions of the Election Code at the time he prepared and filed the Form D-1 and amended Form D-1. By doing so, he would have learned that he was a "sponsoring entity" and that he was required to include his name as part of the name of the Committee on the From D-1. However, we do not believe that his failure in this regard constituted dishonesty or deceit. For example, in In re Mason, 122 Ill. 2d 163, 164, 169-70, 522 N.E.2d 1233, 1234, 1236 (1988), the attorney was not aware that, pursuant to statute, a notice of his client's personal injury claim against the Chicago Transit Authority had to be given within six months. While he was charged with neglect and other misconduct, there was no charge that his failure to learn of the requirements of the statute constituted dishonesty. Also, in In re Grigsby, 00 SH 58, M.R. 18695 (May 22, 2003), the attorney was found to be incompetent for his representation of a client in a post-conviction matter and on appeal. The Hearing Board Report pointed out that "any competent attorney" who represented the client at the time "would have known, or would have learned through minimal research that [the] pro se petition was deficient and would be dismissed [unless amended]," whereas the attorney thought the petition was "acceptable" and did not afford his client the opportunity to provide additional information to support the claims. (p. 9-10) Additionally, the attorney filed an appellate brief that failed to comply with the format for briefs as set out in the Supreme Court Rules. The Hearing

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Board Report stated that any competent attorney "would at a very minimum know, or find out, the format required for briefs" and "would know by doing minimal research that a reviewing court may dismiss an appeal when an appellant's brief fails to include citations to the record or an Appendix." (p. 11) However, in Grigsby there was no charge made that the attorney's failure to do minimal research or review the rules for briefs constituted dishonesty.

C. Reporting the date the political committee was created

It was also charged that the Respondent engaged in dishonesty and deceit by stating on the Form D-1 (Adm. Ex. 1) and the amended D-1 (Adm. Ex. 2) that the Committee to Stop the Hurckes Four was created on March 26, 2001. (Complaint, par. 17-18, 30) The Election Code provides that a political committee is created when, as applicable here, any individual "contributes, grants or makes expenditures" of over $3,000 on behalf of or in opposition to a candidate. (10 ILCS 5/9-1.7; Tr. 233-34) It is clear that when the Respondent expended $10,115.50 on March 15, 2001, to pay First Light for the production of the videotape, the Committee was created. (Tr. 234) Thus, as acknowledged by the Respondent, the date of March 26, 2001, on the Form D-1 (Adm. Ex. 1) and the amended Form D-1 (Adm. Ex. 2), as the date for the creation of the Committee was incorrect. (Tr. 39-37, 74, 110)

The Respondent said that he mistakenly placed the incorrect date on the forms. He explained that he believed "the actual formation [of a committee] was ten days after you've actually expended money" and that March 26, 2001, was ten days after the expenditure to First Light. (Tr. 47, 110-11)

In light of the Respondent's previous experience in the preparation and filing of forms with the State Board of Elections (Tr. 21-22, 237), and the fact that the provision in the Election Code pertaining to the creation of a political committee (10 ILCS 5/9-1.7) had not been amended between the time the Respondent had been treasurer of other political committees and his filing

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of the Form D-1 in this matter, we believe the Respondent knew or should have known the difference between the date a political committee is created and the date by which the Statement of Organization, Form D-1, is to be filed. Thus, he should have known that the Committee to Stop the Hurckes Four was created no later than March 15, 2001.

Even though the Respondent knew or should have known that the date of March 26, 2001, for the creation of the Committee was incorrect, we find little motive or reason for him to have listed the incorrect date for the purpose of defrauding or deceiving. We fail to see any connection between the incorrect date the Committee was created and the Respondent's purported motive of concealing his involvement with the Committee. One possible reason for using the date of March 26 for the creation of the Committee would be to show that the Form D-1, filed on March 30, was timely filed - within five business days of the creation of the Committee. (10 ILCS 5/9-3) Again, the Respondent's motive to list the incorrect date for the foregoing reason was slight. According to the expert witness, Mr. Kelley, Form D-1s are filed late "somewhat frequently" and it is merely considered a "housekeeping error." Kelley was not aware of anyone having been prosecuted for filing a Form D-1 late. (Tr. 226) The Respondent had been involved in 500 to 1000 campaigns since the mid 1980s and had served as chairman and treasurer of 10 political committees (Tr. 21-22), yet he, likewise, was not aware of any prosecutions by the State Board of Elections for filing a Form D-1 late. (Tr. 100-01) Thus, the Respondent would have been generally familiar with the adverse effects, if any, of filing a Form D-1 late. We simply were not presented with clear and convincing evidence that the Respondent knowingly listed an incorrect date on the Form D-1 with the intent to defraud or deceive.

Even if an attorney were to intentionally list an incorrect date for the creation of a Committee on a Form D-1, we are doubtful it would be serious enough, in itself, to constitute an

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ethical violation and warrant a disciplinary sanction. While we do not condone the providing of any incorrect information, it is clear from the evidence that the State Board of Elections itself does not consider such a matter to be very serious. Mr. Kelley testified, without contradiction, that he was personally aware of a "half-dozen" Form D-1s that listed the incorrect date for the creation of the committee, and that there had been no prosecutions by the State Board of Elections in those cases. (Tr. 225-26) Kelley further explained that "ordinarily," the Election Board sends a "warning letter" and "they ask you not to do it again." (Tr. 215) Furthermore, even if the listing of an incorrect date for the creation of a committee was a willful violation of the Election Code, it would constitute only a "business offense" (10 ILCS 5/9-26), which is the least serious classification of all criminal offenses (730 ILCS 5/5-1-2 and 5/5-5-1).

D. Identifying the custodian of the political committee records

The Complaint also charged that the Respondent engaged in dishonesty and deceit by falsely stating on Form D-1 (Adm. Ex. 1, p. 2, par. 8) that "the Committee's books and accounts were in Zapata's custody" when, in fact the Respondent himself, not Zapata, had custody of the books and accounts for the Committee's expenditures." (Complaint, par. 17-18, 30)

We do not believe it was proved that the Respondent made a knowingly false statement. We first note that the Respondent did not state on the Form D-1 that the records were in Zapata's "custody," but only that Zapata was the "custodian" of the records. The express language of paragraph 8 of Form D-1 asks for the name of "each custodian of the committee's books and accounts." (Adm. Ex. 1, p. 2) The language on the form does not refer to the physical possession or physical custody of the records. We think it would have been reasonable for the Respondent, or another person acting in good faith in the same circumstances, to believe it appropriate to list the treasurer as the "custodian" of the records even though the treasurer may not have had physical possession of all the records. The Respondent testified, without contradiction, that

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"often" the treasurers of political committees do not possess original documents "but have notes written on how much something cost." (Tr. 41)

Also, there was no evidence showing that the Respondent was in possession of the Committees books and accounts when he prepared or filed the Form D-1. The Respondent testified, without contradiction, that the only Committee records at that time consisted of the bid by First Light (Adm. Ex. 7) and the invoice from First Light (Adm. Ex. 4), and that those documents were in the possession of Jerry Vahl, the school board president. (Tr. 39-40, 69-70) The invoice of TC Marketing was received after March 2001 (Tr. 70), and was not in possession of anyone connected to the Committee when the initial Form D-1 was filed. The Respondent further testified that "I understood that someone else was faxing [the invoice of First Light] to [Zapata]." (Tr. 112) Based upon the evidence before us, we do not believe it was clearly and convincingly established that the Respondent intentionally failed to turn over any documents that were in his possession or knowingly tried to conceal the documents from Zapata, the named Committee treasurer.

We also found no basis in the evidence to conclude that the Respondent had the intent to conceal his expenditures or otherwise be deceitful in filling out paragraph 8 of Form D-1. The Respondent testified that he told Zapata during a telephone conversation and later at a meeting on March 29, 2001, the exact amounts that he had expended on behalf of the Committee to First Light and TC Marketing. (Tr. 81-83, 112, 123-24) Robert Streit, a village trustee in Oak Lawn, testified that he accompanied Respondent to Zapata's office on March 29, 2001, and recalled the Respondent mentioning expenditures, and telling Zapata that Zapata would have to report the expenditures. (Tr. 174-75, 185) We found the foregoing testimony of the Respondent and of Mr. Streit to be credible.

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David Zapata testified that he did not have any discussion with the Respondent about expenditures, and he denied that Mr. Streit accompanied the Respondent to his office. (Tr. 144-45, 153-54) Suffice it to say that we found Zapata to be less than credible and his testimony unbelievable.

E. Timely reporting of contributions

The Complaint also charged the Respondent with engaging in dishonesty and deceit by failing to report to the State Board of Elections his payment of $10,115.50 to First Light (Adm. Ex. 4, 5) or his payment of $1,249.60 to TC Marketing (Adm. Ex. 6), within two business days, in violation of 10 ILCS 5/9-10(b-5). (Complaint, par. 20-21, 30)

The Election Code, 10 ILCS 5/9-10(b-5), requires the treasurer of a political committee to file a report with the State Board of Elections of "any contribution of more than $500 received in the interim between the last date of the period covered by the last report filed and the date of the election," and such report is to be filed "within 2 business days after the receipt of such contribution."

The Respondent presented two reasons for not reporting his payments to First Light and TC Marketing, pursuant to the above statute. One reason was that he did not believe the reporting requirement in 10 ILCS 5/9-10(b-5) was applicable to his payments. He explained that he thought the reporting of a $500 contribution could only be made after a Form D-1, Statement of Organization, has been filed. For example the Respondent stated "I don't believe you can file a report saying you have had an expenditure of over $500 in the last two days if you don't have a D-1 on file." (Tr. 75)

The express language of 10 ILCS 5/9-10(b-5), set out above, states that a contribution of more than $500 received "in the interim between" the "period covered by the last report filed" and the "date of the election" must be reported. In regard to the Committee to Stop the Hurckes

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Four, there had been no report or any form filed prior to the Respondent's payment to First Light, on March 15, 2001, or to TC Marketing, on about March 23, 2001. The initial statement of organization, Form D-1, for the Committee (Adm. Ex. 1) was not filed until March 30, 2001. Because the payments in this matter were not made during any interim period, between any previous report and the election, we believe the Respondent could have reasonably concluded that the reporting provision was not applicable. We were not referred to any precedent, and we found none cited by the Appellate Court (See Brennan, 336 Ill. App. 3d at 763-65, 784 N.E.2d at 865-67), that had applied the foregoing provision in similar circumstances.

The Respondent also testified that he did not believe he had any responsibility to file a report pursuant to 10 ILCS 5/9-10(b-5) because it is solely the responsibility of the treasurer of the political committee to file the report, and he was not the treasurer of the committee to Stop the Hurckes Four until April 27, 2001, which was after the election. (Tr. 74-76) The State Board of Elections, however, determined that the Respondent was "de facto treasurer" and "de facto chairman," and thereby had the responsibility to comply with the reporting requirement in 10 ILCS 5/9-10(b-5), but failed to do so. The Appellate Court affirmed. See Brennan, 336 Ill. App. 3d at 758, 763, 784 N.E.2d at 861-62, 865-66).

The Respondent argued to us that there is no such position as "de facto treasurer" or "de facto chairman." (Tr. 305-06) He also cited a decision from a federal court that held there is no "de facto treasurer" under the federal election disclosure law. (See Federal Election Commission v. Toldedano, 317 F.3d 939, 945 (9th Cir. 2002). (Tr. 305) There was also testimony that the Illinois Election Code does not refer to a "de facto treasurer." Expert witness David Kelley testified that a "de facto" treasurer or chairman is not mentioned in the Election Code and, to his knowledge, it was not used in any State Election Board matter prior to the Respondent's case.

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Kelley also noted the holding in Tolendano. (Tr. 213-14, 236-37, 243) The Respondent testified that he had never heard of a "de facto treasurer or chairman" prior to his proceeding before the State Board of Elections. (Tr. 94, 119)

It is well-established that Illinois courts construe and interpret Illinois statutes. (See In re Lieberman, 201 Ill. 2d 300, 307, 776 N.E.2d 218, 223 (2002)). Also, decisions of the Illinois Appellate Court are binding precedent until and unless the Supreme Court of Illinois rules differently. See People v. Harris, 123 Ill. 2d 113, 128-29, 526 N.E.2d 335, 340-41 (1988). Thus, we believe the holding of the Appellate Court in Brennan v. Illinois State Board of Elections, 336 Ill. App. 3d at 758, 763, 784 N.E.2d at 861, 865, that the Respondent was properly found to be the "de facto" treasurer and "de facto" chairman of the Committee to Stop the Hurckes Four, is to be followed as to the meaning of the Illinois statute, rather than a decision from another jurisdiction interpreting a statute from the other jurisdiction.

Nevertheless, we find the Respondent's testimony, that he believed he had no responsibility to report contributions because he was not the treasurer of the Committee and he was not aware that he could be a "de facto" treasurer, to be plausible and reasonable. As noted above, the Election Code does not mention a "de facto" treasurer and there was uncontradicted testimony that there was no precedent for the office of a "de facto" treasurer in 2001. Thus, even if the Respondent's belief was mistaken, the evidence falls short of proving, clearly and convincingly, that he knowingly violated the Election Code with the intent to defraud or deceive.

F. Alleged false statements to a reporter

Finally, the Complaint charged that the Respondent engaged in dishonesty and deceit by making a false statement to a newspaper reporter. (Complaint, par. 22-24, 30) Specifically, the Complaint alleged that the Respondent told reporter Sara Gadola on March 29, 2001, "he had not been involved in the creation or distribution of the videotape [used in the campaign against

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Hurckes' candidates for school board]." It was further alleged that he knew the foregoing statement was false because "he had paid for the production and distribution of the videotape."

There was simply no evidence that the Respondent told Ms. Gadola he "had not been involved in the creation or distribution of the videotape." Ms. Gadola did not testify, and, consequently, the only evidence of the conversation came from the Respondent. The Respondent testified that, as pertinent to this charge, the only question Ms. Gadola asked him was "did [you] produce it" or "are you involved in the production" of it. (Tr. 51-52) The Respondent answered "no" to her question. He explained that he believed he had not been involved in the "production" of the videotape "because I didn't produce it, First Light Productions produced it." (Tr. 51-52) There was no evidence that Ms. Gadola inquired further about the matter. He also said that Ms. Gadola already knew he was involved in the group that was opposing Hurckes' candidates. However, the Respondent acknowledged that he was "playing games" with the reporter and "could have been more candid with her." (Tr. 88-89)

While we agree that the Respondent could have been more candid with the reporter by, for example, providing a more detailed answer to her question or inquiring about what information she wanted, we do not view the single answer to the reporter's question to have been dishonest or deceitful. The Respondent, in the circumstances presented, could have believed his answer was technically correct, and that he had no duty to provide additional information without further inquiry from the reporter.

In the reinstatement case of In re Parker, 149 Ill. 2d 222, 595 N.E.2d 549 (1992), the Administrator argued that the attorney-petitioner made misstatements to a judge, when she told the judge she had "never been addicted to a narcotic," and later it was shown that she had been addicted to cocaine. The attorney explained at the reinstatement hearing that she had not made a

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misstatement "because she did not believe cocaine to be a narcotic." The Court noted that cocaine "is not a true narcotic," and found no misrepresentation serious enough to deny reinstatement. (Parker, 149 Ill. 2d at 238-39, 242, 595 N.E.2d at 557, 558) Similarly, we find that the Respondent's answer to the reporter's question did not constitute a violation of Rule 8.4(a)(4).

We further find that the cases cited by the Administrator in closing argument (In re Fazioli, 01 CH 19, M.R. 19580 (September 27, 2004); In re Coladarci, 01 CH 20; M.R. 20228 (September 26, 2005); and In re Pancratz, 01 CH 21, M.R. 19582 (September 27, 2004)) to be significantly different than the case before us. (Tr. 291-92) In the foregoing cases one attorney (Fazioli) contributed funds to a judicial campaign in the name of two other attorneys (Coladarci and Pancratz). As stated in Pancratz, the "language of the Election Code is clear and provides that no person shall make a contribution in the name of another." (Hearing Board Report at 20) Nevertheless, "[e]ven if, for the sake of argument, Respondent were not responsible for knowing about the Election Code, he should have known that making contributions in another's name was, at a minimum, deceptive and dishonest." (Pancratz, Hearing Board Report at 21; Fazioli, Hearing Board Report at 23; Coladarci, Hearing Board Report at 22) Also, the section of the Election Code violated in the foregoing cases was a Class A misdemeanor. (Pancratz, Hearing Board Report at 20; Fazioli, Hearing Board Report at 22-23; Coladarci, Hearing Board Report at 22) In the matter before us, as discussed above, the pertinent provisions of the Election Code were not "clear," the nature of the Respondent's conduct was not obviously deceptive or dishonest as in the above cases, and the sections of the Election Code the Respondent violated constituted merely a " business offense," the least serious of all criminal offenses.

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Although we find that the charges of ethical misconduct were not proved by clear and convincing evidence, we do not mean to condone the overall conduct of the Respondent. He displayed a lackadaisical attitude in preparing and filing election disclosure forms. As mentioned above, he should have made a greater effort to review the current version of the Election Code and understand the requirements for the disclosure forms; however, his conduct in that regard was not proved to be dishonest or deceitful. We also believe that his active involvement in the hotly contested school board election while he was serving as the publicly paid attorney for the school board demonstrated a lack of good judgment. By placing himself in that situation, he would likely cause the public, as well as some members of the School Board in Oak Lawn, to question his motives, integrity, and objectivity as the attorney for the school board. However, the lack of good judgment does not necessarily constitute ethical misconduct. See In re Winthrop, 219 Ill. 2d 526, 546, 552, 554, 848 N.E.2d 961, 974, 977, 978 (2206). Nevertheless, we believe the following statement by the Supreme Court is applicable to the Respondent in this matter:

"While respondent's conduct in placing himself in a position where his integrity as a lawyer could be questioned merits criticism, yet we cannot hold that he was thereby guilty of willful professional misconduct." People ex rel. Chicago Bar v. Hansen, 316 Ill. 502, 508, 147 N.E. 431, 433 (1925).

For the reasons set out above, we conclude that the charges of misconduct, specifically that the Respondent engaged in dishonesty, fraud, deceit, or misrepresentation in violation of Rule 8.4(a)(4) of the Illinois Rules of Professional Conduct, and that he engaged in conduct which tends to defeat the administration of justice or to bring the courts or the legal profession into disrepute in violation of Supreme Court Rule 770, were not proved by clear and convincing evidence.

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Therefore, we recommend that the charges against the Respondent be dismissed.

Date Entered: July 19, 2007

Champ W. Davis, Jr., Chair, with Panel Members George M. Shur and Roberta Parks concurring