Michigan election board slams recounts as 'frivolous,' allows them to proceed

Wayne County clerk backtracks on Duggan eligibility for ballot

Christine Ferretti
The Detroit News

Detroit — The Wayne County clerk on Tuesday walked back her finding from a day earlier that Detroit Mayor Mike Duggan had missing campaign finance documents with her office, saying the filings are in order in a move that would allow the city clerk to clear him for the ballot.

Cathy Garrett cited a "miscommunication" in a statement late Tuesday and said she's found that Duggan's campaign finance documents were in order by the filing deadline for the August primary. A legal challenge was filed Monday arguing he was ineligibile for the ballot. 

Garrett said she met with the county's Campaign Finance Division and reviewed communications between the office and Duggan's campaign committee to reach her new finding.

Detroit Mayor Mike Duggan speaks during a press briefing at the White House on Feb. 12, 2021 in Washington.

"I find that as of April 20, 2021, Mike Duggan is in compliance with "all statements, reports, late filing fees, and fines" required of his committee or any candidate committee organized to support his election under the Michigan Campaign Finance Act, PA 388 of 1976," Garrett said. 

Detroit City Clerk Janice Winfrey's office certifies Detroit candidates; Garrett's office maintains campaign finance records. Winfrey has said her office will complete certification of candidates for the ballot by the end of the week.

Alexis Wiley, Duggan's campaign manager, said Tuesday: "We thank Clerk Garrett and her elections staff for their professionalism and due diligence in getting to the facts of this matter."

The county's ruling came hours after Duggan's campaign sent a letter to Garrett's office pushing back on claims from opponent Anthony Adams that Duggan had failed to file an amended fundraising disclosure and is ineligible for the August ballot.

Adams said he'll call for the county to immediately turn over all records produced by Duggan as well as supporting emails from the county's server.

"I find it highly unusual that an error of this magnitude would be committed," he said Tuesday night. "I also find it highly unusual that records are produced by the mayor which were not in the official possession of the campaign finance office. How can anyone have confidence in the process if records are not accurately kept with the entity charged with the responsibility for maintaining accurate records."

In the letter Tuesday to Garrett, the law firm that manages the mayor's campaign filings argued Garrett's office "erroneously reported" Monday that Duggan's campaign committee didn't provide her office with a proper response to a 2018 error notice.

"I respectfully request that your office communicate to Detroit Clerk Janice Winfrey that there was, in fact, no failure of reporting on the part of the Duggan campaign," Dykema attorney W. Alan Wilk wrote in the letter to Garrett that was provided to The News. 

Wilk detailed efforts by the Duggan for Detroit campaign to reconcile issues raised over the paperwork and said that the county's campaign finance manager first delayed providing direction on the required paperwork and later pointed to a glitch in the county's computer system. 

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Lisa Williams, a spokeswoman for the Wayne County Clerk's Office, originally told The News on Monday that Duggan "failed to file an amended July 2018 Quarterly Campaign Statement."

A separate letter was being sent to Winfrey, Duggan's campaign manager Alexis Wiley said. Winfrey could not immediately be reached. 

Under Michigan law, those filing to run for office must submit an affidavit of identity, including "a statement that as of the date of the affidavit, all statements, reports, late filing fees and fines required of the candidate or any candidate committee" have been filed or paid. 

Ballot eligibility for several candidates has been an issue since the April 20 filing deadline.

At-large Detroit Councilwoman Janee Ayers' certification for the primary ballot is being challenged amid allegations of delinquent campaign filings. Taylor City Clerk Cynthia Bower ruled Friday that indicted Mayor Rick Sollars won't appear on the city's election ballot over campaign filing issues, and in Pontiac, election officials disqualified Mayor Deirdre Waterman for failure to submit campaign reports on time. Candidates can challenge a disqualification in court or run as a write-in.

Winfrey's office certifies Detroit candidates, but Garrett's office maintains campaign finance records.

Campaign finance records maintained by the county show that Duggan filed his July 2018 report, which covered Nov. 28, 2017, through July 20, 2018, on July 25, 2018. However, Garrett's office asked his campaign to clarify 22 expenditures totaling $48,287 to Paychex for "wages-employment taxes."

"You may have to report the names of the individuals that you are paying taxes for," a letter from the county clerk's office had said, requesting an amendment to Duggan's report be filed by Aug. 27, 2018. 

Wilk, in his letter to Garrett, noted the campaign reported to the Campaign Finance Division of Garrett's office the same way for six straight reporting periods beginning in August of 2016.

In each, the committee reported fully the net payment to each employee and separately reported the withheld taxes paid to Paychex, Inc.

"In not one case did the Clerk’s Office issue an Error/Omission notice or indicate there was any problem whatever with that reporting," the letter reads. 

Wilk wrote that Duggan's campaign received an error/omission notice on Aug. 20, 2018, for the July 2018 quarterly statement. At that time, Renae Moore, the compliance manager for the Dykema law firm, called Gil Flowers, campaign finance manager for the clerk's office.

Moore told Flowers that six filings from Duggan's campaign had been accepted as proper and complete and asked if new regulations had come into play requiring government withholding taxes to be detailed in vendor reports, according to Wilk's letter.

Flowers wasn't immediately sure, the letter reads, and told Moore he needed to talk with the state. A week later, Moore contacted Flowers again for direction, but he still lacked clarity, the letter adds. 

On Sept. 28, 2018, Moore, "without clear guidance," sent an e-mail to Flowers with the full detail of the Paychex withholding in two different formats, Wilk wrote.

By Oct. 9, 2018, Wilk wrote that Flowers told Moore "not to file electronically because the clerk's system could not accept the tax withholding detail in its system" and that he was "waiting for my IT department to fix the bug."

"In short, as of October 9, 2018, the Campaign Finance Division of the Clerk’s Office had received the complete detailed information Mr. Flowers had requested and held that information in email form in the Campaign Finance Division of the Clerk’s office," it reads. "The only reason there was not an additional uploaded version of that information was that Mr. Flowers directed Ms. Moore not to file it because the online system couldn’t accept it. To this day, no one from the Clerk’s office has ever communicated to Duggan for Detroit that the Clerk’s online system has been successfully modified to accept the upload of that detail.

"It seems clear the Campaign Finance Division of the Clerk’s Office accepted the email submission of the information as having been sufficient to resolve the issue raised," the letter reads. 

Late Tuesday, Garrett said in 2018, the campaign finance system did not allow an upload for memo-itemizing. Duggans' campaign instead sent the information via email. 

On May 30, 2019, the committee was notified that the upload feature for memo-itemization was operational.

"However, the email from the Campaign Finance Manager did not adequately, based on departmental standards, direct the Committee to upload the memo-itemized report for the July 2018 Quarterly that they had previously sent by email into the system," she said. "Therefore, since the Duggan Candidate Committee did provide the necessary report to the Campaign Finance Division through email, the only means available at that time for a memo-itemization."

The paperwork became an issue on Monday when Adams filed a legal challenge in an attempt to have Duggan barred from the August ballot. The former deputy mayor on Monday contended Duggan "failed to follow the law."

It's troubling, Adams said Tuesday night, that the records didn't exist in the county's system.

"This is questionable and we need to see both what was produced at the 11th hour by the mayor and how they verified that this information was even submitted," he added. 

Duggan was forced to run as a write-in in the 2013 mayoral primary. At that time, candidate Tom Barrow, who is also running against the mayor this year, questioned whether Duggan after moving to Detroit from Livonia met City Charter requirements for residency to appear on the Detroit ballot. 

A three-member panel of the Court of Appeals upheld a lower court decision that removed Duggan from the ballot. The judges said Duggan violated Detroit's charter when he filed his paperwork for the post early. He went on to be elected mayor.