[EL] prohibition on ex parte communication with EAC executive director

Fri Feb 5 05:37:13 PST 2016

The section I highlighted appears to indicate that the Exec Dir needs to
inform Commissioners of any significant issues brought to his attention.
Despite not directly addressing ex parte communication, it appears that the
Exec Dir would have been required to inform the Commissioners if Kobach had
requested the EAC to change registration instructions and the Exec Dir's
intentions to address said request.
On Feb 5, 2016 12:27 AM, "Steve Kolbert" <steve.kolbert at gmail.com> wrote:

> Thanks for the find!
>
> I don't see anything that prohibits ex parte communication, though.
> Perhaps there's another document outlining the  executive director's
> responsibilities with regard to confidentiality?
> On Feb 4, 2016 11:21 PM, "Tyler Culberson" <tylerculberson at gmail.com>
> wrote:
>
>> The Roles and Responsibilities of the Commissioners and Executive
>> Director of the EAC
>> <http://www.eac.gov/assets/1/workflow_staging/Page/348.PDF> states:
>>
>> [image: Inline image 1]
>>
>>
>>
>>
>>
>> On Feb 4, 2016 8:33 PM, "Steve Kolbert" <steve.kolbert at gmail.com> wrote:
>>
>>> MSNBC piece's piece questions whether Newby gave Kobach advance notice
>>> of the changes to the Federal Form's instructions (emphasis mine):
>>>
>>> Lawrence also alleges that Kobach may have known two weeks ago that the
>>>> EAC had decided to make the change, *suggesting improper collusion
>>>> between Kobach and Newby*. Lawrence said that at an appearance before
>>>> a Kansas Senate committee January 21, Kobach was asked about the voter
>>>> registration form controversy, and twice said the federal form would be
>>>> changed before the next elections. Lawrence said those comments suggest *Newby
>>>> may have improperly communicated with Kobach* on the issue without the
>>>> knowledge of the EAC’s commissioners.
>>>>
>>>> “Given Mr. Kobach’s knowledge that this change was coming beforehand
>>>> and his close relationship with Mr. Newby, this has the appearance of a
>>>> closed door deal not done through proper channels.”
>>>>
>>>
>>> Assuming that this in fact happened, I'm curious about the complaint
>>> that Newby's communication with Kobach is itself improper. Is ex parte
>>> communication prohibited between state election officials and the EAC
>>> executive director? Is the EAC executive director required by rule or
>>> internal operating procedure to get permission from the commissioners to
>>> speak with state election officials, or to alert them before he speaks with
>>> them?
>>>
>>> To be clear, giving advance notice of an important and controversial
>>> decision to a former colleague outside your agency without alerting your
>>> agency heads--if that's what happened--certainly seems like a bone-headed
>>> move. But bone-headed does not equal wrongdoing. Is there something else
>>> that makes Newby's alleged communication with Kobach constitute "improper
>>> collusion," as MSNBC puts it?
>>>
>>> (Also to be clear, my questions are not about the executive director's
>>> authority to make these changes--only about the propriety of Newby's
>>> alleged ex parte communication.)
>>>
>>> On Thu, Feb 4, 2016 at 11:08 AM, Rick Hasen <rhasen at law.uci.edu> wrote:
>>>
>>>> EAC’s Brian Newby Defends His Actions Helping His Buddy Kobach
>>>> <http://electionlawblog.org/?p=79575>
>>>> Posted on February 4, 2016 7:38 am
>>>> <http://electionlawblog.org/?p=79575> by Rick Hasen
>>>> <http://electionlawblog.org/?author=3>
>>>>
>>>> Must-read Zach Roth
>>>> <http://www.msnbc.com/msnbc/federal-agency-helps-red-states-make-voter-registration-harder>for
>>>> MSNBC:
>>>>
>>>> Newby’s move sparked instant criticism. In astatement
>>>> <http://electionlawblog.org/?p=79529> posted online Tuesday, the
>>>> panel’s lone Democratic commissioner, Vice Chair Thomas Hicks, wrote that
>>>> Newby had acted “unilaterally,” and that his decision “contradicts policy
>>>> and precedent established by the Commission.” Hicks noted that a 2015
>>>> EAC statement
>>>> <http://www.eac.gov/assets/1/Documents/Organizational%20Management%20Policy%20Statement%20%28final%20adopted%202-24-15-cm%29.pdf%20%20%20%20>
>>>>  makes clear that the executive director lacks the authority to set
>>>> policy, which must be done by the commissioners. Hicks said any change to
>>>> the federal voter registration form would need to be voted on by the
>>>> commissioners after a public comment period, neither of which occurred in
>>>> this case.
>>>>
>>>> “This is a shocking departure from two previous rejections by the EAC
>>>> of requests to change the federal form along these lines, with no
>>>> explanation, and, what’s worse, with no opportunity for public notice and
>>>> comment,” said Dale Ho, the director of the ACLU’s voting rights program,
>>>> which is suing Kobach over the proof-of-citizenship requirement, calling it
>>>> “troubling on a number of levels.”…
>>>>
>>>> In an interview with MSNBC, Newby conceded that he lacks the authority
>>>> to change EAC policy. But he argued that changing the state-specific
>>>> instructions that accompany the federal voter registration form, unlike
>>>> changing the form itself, constituted an administrative matter, rather than
>>>> a policy change— even though the agency had twice rejected Kansas’ requests
>>>> to change the instructions. In fact, Newby said, he believes he’s
>>>> *required* to change the instructions if a state asks him to.
>>>> “If a state requests that we modify the state-specific instructions
>>>> based on their state law, yes, I believe that my role is to put those
>>>> [changes] in our state-specific instructions,” Newby said.
>>>>
>>>> If there’s a meaningful distinction between the federal form and the
>>>> instructions that accompany the federal form, it was lost even on Kobach.
>>>> In his court filing this week seeking to have the lawsuit against him
>>>> dismissed, he referred to Newby’s decision thus: “On January 29, 2015
>>>> (sic), the EAC granted Kansas’s request to modify the Federal Form.”
>>>> William Lawrence, a Kansas lawyer who is challenging Kobach’s effort to
>>>> remove the roughly 30,000 would-be voters who didn’t provide proof of
>>>> citizenship, said the distinction Newby is seeking to draw doesn’t hold
>>>> water….
>>>> Newby admitted to MSNBC he’d been in contact with Kobach on the issue,
>>>> as well as with the secretaries of state of Alabama and Georgia. He said
>>>> there was nothing improper about doing so, or about not including the the
>>>> EAC’s commissioners in his conversations with state officials.
>>>>
>>>> “It wouldn’t have been proper to include the commissioners in any of
>>>> the discussions I had with the secretaries of state,” Newby said. “It was
>>>> really my jurisdiction, my process.”
>>>>
>>>> [image: Share]
>>>> <https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D79575&title=EAC%26%238217%3Bs%20Brian%20Newby%20Defends%20His%20Actions%20Helping%20His%20Buddy%20Kobach&description=>
>>>> Posted in election administration <http://electionlawblog.org/?cat=18>,
>>>>  Election Assistance Commission <http://electionlawblog.org/?cat=34>, The
>>>> Voting Wars <http://electionlawblog.org/?cat=60>
>>>>
>>>
>>> _______________________________________________
>>> Law-election mailing list
>>> Law-election at department-lists.uci.edu
>>> http://department-lists.uci.edu/mailman/listinfo/law-election
>>>
>>
-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://webshare.law.ucla.edu/Listservs/law-election/attachments/20160205/783f3646/attachment.html>
-------------- next part --------------
A non-text attachment was scrubbed...
Name: share_save_171_16.png
Type: image/png
Size: 1504 bytes
Desc: not available
URL: <http://webshare.law.ucla.edu/Listservs/law-election/attachments/20160205/783f3646/attachment.png>
-------------- next part --------------
A non-text attachment was scrubbed...
Name: image.png
Type: image/png
Size: 85034 bytes
Desc: not available
URL: <http://webshare.law.ucla.edu/Listservs/law-election/attachments/20160205/783f3646/attachment-0001.png>