COUNCIL OF THE CITY OF PHILADELPHIA COMMITTEE ON LAW AND GOVERNMENT - - - Room 400, City Hall Philadelphia, Pennsylvania Thursday, October 19, 2006 9:00 a.m. - - - PRESENT: COUNCILMAN JAMES F. KENNEY, CHAIR COUNCILMAN W. WILSON GOODE, JR. COUNCILMAN JACK KELLY COUNCILMAN FRANK RIZZO BILL 060629 - An ordinance amending and clarifying the campaign finance provisions of Chapter 20-1000 of The Philadelphia Code; in particular, defining, for purposes of the Chapter, what it means to be a "candidate" for City elective office... - - - V A R A L L O Incorporated Litigation Support Services Eleven Penn Center 1835 Market Street, Suite 600 Philadelphia, Pennsylvania 19103 215.561.2220 215.567.2670 2
Good morning, ladies and gentlemen. I lost my voice this morning, so the Clerk is going to read the bill for the Law and Government Committee, which has a quorum with members Goode, Kelly and Kenney.
Bill No. 060629, an ordinance amending and clarifying the campaign finance provisions of Chapter 14 20-1000 of The Philadelphia Code; in particular, defining, for purposes of the Chapter, what it means to be a "candidate" for City elective office; prohibiting the acceptance of contributions in excess of the contribution limits; prohibiting candidates from spending the amount of any contribution in excess of the contribution limits, including any excess contributions made before a person became a candidate; providing that if one 3 10/19/06 - LAW - BILL 060629 candidate makes contributions of his or her own resources in excess of a specified amount to his or her own campaign, then the contribution limits for all other candidates will be increased; providing for enforcement, including the imposition of civil penalties, by the Board of Ethnics; and making certain technical changes; all under certain terms and conditions.
Thank you very much. The Chair recognizes Councilman Goode.
Thank you, Mr. Chairman. I have some brief remarks about this proposed amendment to the campaign finance provisions to The Philadelphia Code. First allow me to describe the amendments. Number one, this bill defines what it means to be a candidate for City elective office consistent with legal opinion offered by the City Law 4 10/19/06 - LAW - BILL 060629 Department. Two, this bill prohibits the acceptance of contributions in excess of the contribution limits. Three, this bill prohibits candidates from spending the amount of any contribution in excess of contribution limits, including any excess contributions made before a person became a candidate. Four, this bill provides a Millionaires' Amendment that if one candidate contributes at least $250,000 of his or her own resources, then the contribution limits for all the candidates will be doubled. Five, this bill provides for enforcement, including the imposition of civil penalties by the Board of Ethics. It's a good bill, much better than the landmark legislation I sponsored in 2003. I remain convinced that the veto-proof majority that passed, the 2003 5 10/19/06 - LAW - BILL 060629 law, would not have remained intact for some of the provisions that deal with specific prohibitions, enforcement and penalties. I believe this body has matured since then on the issue of ethics. The main purpose for this bill 9 is the Millionaires' Amendment, which is not a new concept. The Millionaires' Amendment became part of federal campaign finance reform in the Bipartisan Campaign Reform Act of a few years ago. A summary from the Federal Election Commission is contained in the Committee packets. The 2001 New York City mayoral election points to the need for this local amendment. New York City enacted campaign finance reform in the late 1980s, but in 2001, Michael Bloomberg opted out of campaign contribution limits and poured $73 million of his own money into his campaign, outspending his opponent five to one. I would hate to see a new 6 10/19/06 - LAW - BILL 060629 municipal candidate, any municipal candidate, pour tons of personal resources into next year's campaign at a time when other municipal candidates with limited personal resources are facing contribution limits for the first time in the City's history. It will be a smack in the face to those who have fought hard to keep big money out of local politics. This bill clarifies and strengthens the 2003 landmark legislation. Thank you.
Thank you very much. I understand we have a panel of witnesses, so if they could all come forward. Identify yourself and proceed.
I'd like the Law Department to come forward, not to testify. I asked them to essentially comment on the legality of the bill. They've done so through a legal opinion that is contained within the Committee 7 10/19/06 - LAW - BILL 060629 packet. So I would like them to take questions, along with the Committee of Seventy, but they will not be offering testimony on behalf of the Administration.
That's fine. Please come forward. Good morning. Please identify yourself for the record.
Good morning, Mr. Chairman and members. My name is Ned Dunham and I'm the current Chair of the Committee of Seventy.
My name is Lewis Rosman. I'm a senior attorney at the City Law Department.
Thank you, first of all, for inviting us here to discuss the pending bill. We very much appreciate the opportunity. We're here this morning to advise this Committee and the Council 8 10/19/06 - LAW - BILL 060629 against adoption of the Bill 060629 in its current form and to hopefully present a viable alternative. " There are other provisions of the bill that we're not going to address, but we feel very strongly that if you're going to define that term, then you need to do it with a broad inclusive commonsense definition. That is the only way for the bill to become truly effective and to accomplish the purpose that you passed it in the first place. In our view, to pass the ordinance as it's currently worded and currently stands would be to nullify much of the good you've accomplished to date. Maybe to just take a minute and put our testimony in context, the current law, as you are well aware, limits the amount of money individuals and organizations can contribute to a candidate for certain offices, including that of Mayor. When you pass 9 10/19/06 - LAW - BILL 060629 legislation, it's apparent to us that two things were at the front of your mind, and, that is, first of all, that money buys influence, and by limiting the money, you limit the influence, and the second is that, fairly self-evident, that a disproportionate amount of money acts to give far greater weight to the giver's vote than to the vote of those who cannot afford to give so lavishly. Your bill is an attempt -- and we think a very good one -- to level the playing field. You passed the bill during a perfect storm of wonderful pay-to-play events, indictments, trials, investigations and an FBI bug in the office of the Mayor. What you did not do in the bill 19 was to spell out when an individual seeking elective office becomes a candidate for the purpose of triggering the limitations. Predictably then after the bill was passed, candidates for Mayor took various positions as to their obligations to abide by the limits. It 10 10/19/06 - LAW - BILL 060629 soon became apparent that one of the goals of the bill, which was to level the playing field, was being compromised. Allan Schimmel, who is a former Chair of the Committee of Seventy and a current member, filed a lawsuit that you all are aware of. Mr. Schimmel seeks a declaration from the court that all of the potential mayoral candidates, regardless of their declared or undeclared status, are under an obligation to abide by the limits that you had set. In the early stages of the litigation, four of the candidates, Messrs. Knox, Saidel, Evans and Nutter, agreed to your limits and further agreed to have a consent judgment entered against them to that effect. The court subsequently found that your bill was both constitutional and valid. What remains for the court to resolve is the question of candidacy. Mr. Schimmel argues, through 11 10/19/06 - LAW - BILL 060629 his very able counsel, that although you did not define the term "candidate," you did not need to for your intended restrictions to be effective. The basis of Mr. Schimmel's argument, and the argument that we join in, is that the Commonwealth had done it for you in the broad definition in the Pennsylvania Election Code. If you are to pass the ordinance that you're considering now, you will blow that argument completely out of the water and make it crystal clear that you really mean the limits you impose not to kick in until somebody either declared publicly that he was a candidate for Mayor -- and at least one candidate has done that -- or filed his nominating papers. Nobody has done that. By doing so, you'll guarantee a very unlevel playing field, in our view, giving those candidates with deep-pocket resources a distinct advantage over the lesser well-healed candidates. We would 12 10/19/06 - LAW - BILL 060629 suggest that that's not your intention.
In the alternative, if you're going to define the term at all and thus determine when your limitations become effective, we suggest that the law, commonsense and the intent of this body is to define the candidate in a very broad language of the Pennsylvania Election Code. That, just to paraphrase it, kicks in the -- one becomes a candidate as one takes positive steps to run for office: You begin to raise money, you have others raise money for you, you spend money or you actually file 16 your nominating papers. You're all familiar with the definition. I won't go into that now, but we feel very strongly that we're right on the law and that it's correct to apply this very broad definition to your original bill. Mr. Schimmel's counsel has done some strong and in-depth research that's a matter of the public record in that 13 10/19/06 - LAW - BILL 060629 court filing, and we can make it available to you. We are also aware, of course, that our learned colleague, Mr. Romy Diaz, has taken a contrary position in favor of a very narrow definition of the term "candidate" that would have your campaign finance limits kick in only when a candidate formally declares or files his nominating papers. With all due respect to Mr. Diaz's opinion, we, quite frankly, think he got it wrong, and we've discussed this with him, on this particular issue when he relies on a "resign to run" case that was handed down by the Commonwealth court in 1990. From the commonsense standpoint, the Pennsylvania Election Code broad definition is just that, it's just plain commonsense. I don't want to be flippant, but if it looks like a duck and walks like a duck and quacks like a duck, then maybe it is a duck, or a candidate. 14 10/19/06 - LAW - BILL 060629 This is a definition that voters can understand. If you pass the ordinance before you so that candidates would be permitted to raise as much money as they wanted to prior to publicly declaring their candidacy or filing their nominating papers, they could raise unlimited amounts, giving rise to the opportunity for wealthy donors to buy a certain level of influence. The playing field would not only not be level, but your original intent would be frustrated. As a third factor in support of the broad definition of "candidate," we had the intent of this body. We recognize that intentions are often difficult to discern with real precision, but in this case, you've made the task a little bit easier. Councilman Goode, in a very nice op-ed piece in the Daily News earlier this year, noted that you did not define the term "candidate" because the State Election Code had done it for you. 15 10/19/06 - LAW - BILL 060629 To quote Mr. Goode, "We would all prefer a national or even state remedy for low voter participation, but the State Election Code is silent on the issue of campaign contribution limits as it relates to that matter, but the State Election Code is not silent on the definition of 'candidate' for elective office. So the local law did not seek to locally define it. In the end, the local law cannot be preempted by nothing from the state, but has to be preempted by something. " That was an op-ed piece in the Daily News in April of this year. We say amen to that and that it was well said. We take that to mean that very sensibly this body did not attempt to define "candidate" because the Commonwealth had already done it for you. You were right then. We'd suggest that if you continue on this course, you will still be right, and if you decide to define the term 16 10/19/06 - LAW - BILL 060629 "candidate" at all, it will be the very broad definition that's found in the Pennsylvania Election Code. Thank you very much.
Thank you. Let me start with the Law Department response to what Mr. Dunham has said and specifically as it relates to the definition of "candidate." And actually if you could just review the legal opinion in totality and then speak specifically to the term "candidate."
You'd like me to review the opinion most recently on this, on your current bill?
Because as you know, Councilman, the opinion regarding the definition of the term "candidate" goes well back to -- there was an opinion issued in December of 2005 to the Ethics 17 10/19/06 - LAW - BILL 060629 Board that itself was based on opinion that was provided in 2004 to Councilman Mariano. The Law Department has, since the inception of the campaign finance law, understood the term "candidate" must mean someone who has declared that they are running for Philadelphia office. Primarily that's because it's fairly clear that the City cannot regulate someone who is raising money that might be used to run for something other than City office. In other words, if someone is raising money and they have not decided what they're going to use it for, they may run for state office, they might run for City office, they might run for federal office, that the City does not have the power to regulate someone in that position until it is known that what they intend to use the money for is in fact a run for City office. And that is why the Law Department has consistently since 2004 viewed the ordinance as 18 10/19/06 - LAW - BILL 060629 regulating those who have declared that they are running for City office, and that's in line with the City Charter's use of the word "candidate" in the provision, the "resign to run" provision, that says you cannot become a candidate for elective office unless you resign from your City office or employment. And the courts had said what that means to become a candidate under the Charter provision is if you have declared publicly that you are running for an office or you have filed papers to do so. The opinion that's been provided several days ago regarding Bill 17 060629 reiterates that view of the Law Department and says that this bill would make that explicit. Our understanding of the implicit meaning of the word would be explicit in the Code, which, of course, is helpful to everyone to know if the terms are explicitly defined and it puts it right out on the table, it would, as Mr. Dunham said, end the litigation over 19 10/19/06 - LAW - BILL 060629 what the term means, which the Law Department is not taking a policy view on with respect to what the law should be, but with respect to having clarity in the law so that everybody knows what the rules are, that is obviously a good thing. There's another important provision of 060629 which in many respects addresses the policy concerns that Mr. Dunham is expressing about the way the term "candidate" is defined, and, that is, the opinion of the Solicitor to the Ethics Board in December 9, 2005, which is available on the Ethics Board website, explains that the understanding of the Law Department is if you are not yet a candidate and you are raising funds in excess of the limits set forth in the ordinance, in the Code, once you become a candidate, the Law Department's understanding is that you would be limited in how you could spend the money that you received before you became a 20 10/19/06 - LAW - BILL 060629 candidate. Call those pre-candidacy excess contributions. So if you raised from somebody more than what you would be allowed to raise if you were a candidate, once you become a candidate, you could only spend the portion of that money that would be within the limits on your candidacy. The rest of the money you would have to use somehow else.
Just one clarification. If I'm raising money and I'm not a candidate, the money has to go into some type of fund, it has to have some title, name on it.
If I declare my candidacy for Mayor and form a mayoral campaign committee, how do I legally transfer the money from there to that committee without violating existing City law?
Because 21 10/19/06 - LAW - BILL 060629 there's a limitation on PAC contributions of $10,000. If I raise 200,000 in an exploratory committee, how do I get that 200,000 into my mayoral committee without violating the law?
I'm not sure I can give an opinion on what are the permissible ways to do that.
Well, I think there's been an assumption, although I don't want to give an opinion about whether this is okay or not. I think there's an assumption built into our December 2005 opinion that you could simply change the name from your Joe Smith 2007 to --
You can't just change the name. You'd have to make one defunct or create another one. You couldn't just simply change the name of it, because that's basically creating a new PAC. 22 10/19/06 - LAW - BILL 060629
Perhaps if you change the name, that you could transfer that money and that it would not count as a PAC to fund contribution. Maybe it would, but the assumption here is that it would not.
Right. But if you transferred that money, you would still be limited in spending the portions of that money on your campaign to the portions that you could have raised under the limits, and the rest of the money that would be in excess of the limits you would have to use for some other purpose.
My assumption is that the court would make that decision, because that's something that would be argued.
I guess so, if that were challenged the way that the money were transferred from fund to fund.
I actually 23 10/19/06 - LAW - BILL 060629 think the Chair is very clear, that you cannot change the name of a committee without forming a new committee. I believe that is impossible. You can change treasurers, you can change chairmen, you can change any number of things on a committee, but once you change the name of a committee, you're actually changing committees. So I think that the law is pretty clear and solid in terms of you cannot transfer money from one committee to another committee in excess of the contribution limits. But whatever was unclear about the 2003 ordinance is made clear by this ordinance. And so my first question for Mr. Dunham is, regardless of when someone becomes a candidate, whether you're using a broad definition or whether you're using a narrow definition, the other provisions of this bill that prohibit the acceptance of contributions in excess of contribution limits, that prohibit the spending of the amount of 24 10/19/06 - LAW - BILL 060629 any contribution in excess of the contribution limits, including excess contributions made before a person became a candidate, does that or does that not make the issue moot?
Well, Mr. Councilman, I don't think it makes the issue moot because I think that there are -- and we all know that there are ways of spending the money in advance of the time when the limits actually kick in. I agree that --
You mean in advance of when someone becomes a candidate.
Well, when someone becomes a candidate, but that's always the question. That puts the rabbit in the hat. I think that you've raised a very good question about transferring the funds, I mean, changing the name on the bag. I think that's a real legitimate issue that needs to be addressed. And 25 10/19/06 - LAW - BILL 060629 fundamentally --
It's an issue you mean that needs to be addressed legislatively?
I think legislatively if you're going to -- because otherwise you've got a perception out there that somebody --
There is no 11 misperception. The original legislation says you can only have one committee.
Well, you can't change the name of the committee under the State Election Code.
So there's no confusion here. The legislation says you can only have one committee.
I think the Chairman raised a good question, though. How do you get the money that you've collected in advance. 10/19/06 - LAW - BILL 060629
You can't, because -- this is why the Law Department doesn't like to testify at a hearing, because essentially the Chairman asked them how to do it. He can't suggest how to do it legally because it can't be done legally. That's why his answer is the way it is. But let me ask you a few other questions.
You have alluded to the fact that you believe that candidates are candidates when they begin to raise money that might be used for a race.
Well, it comes from, I think, the definition of the Pennsylvania Election Code, which is, I think, pretty clear. When you either personally raise money or you authorize the committee to do it, to raise it and 27 10/19/06 - LAW - BILL 060629 spend it, then you're a candidate.
So that opinion does not come from this current bill or the previous ordinance.
But doesn't the previous ordinance essentially define election cycle within the year in which a covered election occurs?
It does, but if you take the current position where you've got candidates out there raising considerable sums and at least --
I'm asking you to restrict your comments to either the current ordinance or the current bill, and I'm asking you, doesn't the current ordinance, the law, define the election cycle as the calendar year in which the covered election takes place?
Then that's the election cycle, the calendar year in 28 10/19/06 - LAW - BILL 060629 which a covered election takes place.
That is the election cycle by the law. You can't change it. I mean, you've taken a lot of liberties here with my original legislative intent and the intent of Council with regard to the original ordinance. I mean, you spoke about it here today, you spoke about it before today. Clearly, we are the sole arbiters of our legislative intent, and I am the sole arbiter of the intent of why I drafted it the way I drafted it. You simply can't tell me why I drafted it that way.
Well, I was only using what you said in the op-ed piece, which we thought was very well done, and it looked to us like that's what you intended, that --
That's absolutely what I intended in the 29 10/19/06 - LAW - BILL 060629 original ordinance.
I'm intending to amend the original ordinance 7 for the purpose of the Millionaires' Amendment and I'm attempting to narrow the definition now, particularly as it remains to the Millionaires' Amendment, and in doing so, I believe the Law Department agrees that, in our view, which I've shared with you, it causes less confusion, not more confusion. Now, if you disagree with that, that's fine, but our legal opinion says that the clarification that exists within this bill takes away the ambiguity, takes away the confusion, actually offers clarity, and probably diffuses some of the litigation. Not the litigation in regard to constitutionality, but the litigation with regard to the definition of "candidate."
Well, I would 30 10/19/06 - LAW - BILL 060629 certainly agree with you that it removes any ambiguity. It knocks the pins out from under the argument that the Pennsylvania Election Code definition should be used, but I think that when you remove the ambiguity, I think you create the unlevel playing field that you were trying not to do.
Let me ask you a couple questions, Mr. Dunham. How did you become Chair of the Committee of Seventy?
Through the nominating process. I stuck my hat in the ring and they choose to elect me.
So you were 31 10/19/06 - LAW - BILL 060629 on the Board?
I was invited to join the Board in, I think, about 1995 by then a current member of the Board who I happened to know.
Under the current Board membership policy, is there a dues structure?
There is an obligation of $1,200 per year for the members and then there's an expectation that they will help us raise an additional $1,300. So the total obligation is $2,500.
I do, and I think most of the members do. 32 10/19/06 - LAW - BILL 060629
Are you associated with any particular law firm in this City?
Does that law firm represent any of the potential mayoral candidates on the issues of campaign finance?
So your law firm actually represents one of the potential mayoral candidates.
On the issue of campaign finance? 33 10/19/06 - LAW - BILL 060629
I don't think it is. I have never acted in my capacity as a Duane Morris partner. My capacity is as a Chairman of the Committee of Seventy, and the lawsuit itself is not brought by the Committee of Seventy.
Perception is that Seventy decides to sue potential mayoral candidates, people who I don't believe are necessarily mayoral candidates, but Seventy decides to sue potential mayoral candidates. Your law firm chooses to defend one of those potential candidates. Seventy then releases that person from the suit. That's not a conflict of interest?
We released four 34 10/19/06 - LAW - BILL 060629 people from the suit in exchange for their agreement to abide by the campaign finance limits. I don't think it's a conflict of interest at all.
Is your law firm politically backing the candidate that you represent?
Our policy generally is that individual partners back whoever they want to back, and we have a PAC and that goes to certain candidates, and I'm just not aware of the details.
But it's not uncommon for your law firm to choose particular candidates?
It's not uncommon for us to choose several candidates. I don't think that we in the past have been known to pick a particular candidate and focus our efforts on that one candidate.
The candidate that your law firm currently represents, where do they stand in the 35 10/19/06 - LAW - BILL 060629 polls?
The candidate that your law firm currently represents, where do they stand in the polls?
You mean where does Mr. Evans stand? I'm not aware. And, incidentally, I mean, our law firm's involvement in that lawsuit was terminated when Mr. Evans got out of the lawsuit, and I have no idea where he stands in the polls.
When Seventy released Mr. Evans from the lawsuit, he no longer then needed a lawyer.
But my question is, where -- I'll change my question. Where did the candidate that 36 10/19/06 - LAW - BILL 060629 your law firm represented stand in the polls when you represented that candidate?
And what if I told you that the candidate is a front-runner you did not release from the lawsuit?
Well, I guess I'd like to know front-runner by whose poll? I don't know who you're talking about.
I'm asking you if the candidate that your law firm represented was released from a lawsuit and was second in the polls and Seventy 37 10/19/06 - LAW - BILL 060629 still continues to sue other candidates, is that not a conflicts of interest?
I don't see it. I understand the question. I don't see it as a conflict.
I'll finish up, and this is in no way meant to offend you or to attack your character, but you would understand why I would rely upon the Law Department's legal opinion before I rely upon yours?
Thank you very much. Mr. Dunham, I just want to know, candidates running for state 38 10/19/06 - LAW - BILL 060629 offices, do they have any limits?
Under the Election Code, Pennsylvania Election Code, I do not believe they do.
And yet you're saying that we should use or abide by the state regulations concerning our candidates.
Now, I know that candidates for federal office have limits.
In other words, if a person who is presently a candidate or presently a legislator could possibly be probably raising a substantial amount of money. Now, can that person, if he decides to run for a City position, use that money in his 39 10/19/06 - LAW - BILL 060629 election?
Well, I think, as Councilman Goode pointed out, I think there's a real restriction on that. I think that if he's raised money in excess of City Council limits, then he is restricted from --
Well, it seems to be very hazy as to transferring this money out of, I would say, an old account or a previous account that the person had and then transfer it over to a new account or a new committee, whatever you want to call it. I don't know. That's questionable. I don't see the real drawback here of being explicit and by really defining when a person is a candidate, and that's by filing petitions or coming out with a statement saying you're definitely running for an office. You're saying that we should abide by the state regulations. Well, in my opinion, they constantly want to just, 40 10/19/06 - LAW - BILL 060629 I think, eliminate this Council completely the way they've been going over the years. I don't know what we're doing here sometimes, because I think that they just want to usurp our authority all over the place. In my opinion, these are City offices, and I think we have the right to be involved in the process. That's all I wanted to say at this time. I don't see any drawback to being explicit in defining a candidate.
Well, I wouldn't disagree with you that there's no 16 drawback to being explicit. Where you and I would have our conversation is, what are we going to say. And I would say that the state has put a good definition on your plate and you don't need to go any further. You don't need to amend the bill with that respect, because you already got a good definition. And you and I could have a much longer conversation about what the 41 10/19/06 - LAW - BILL 060629 intent of the state is. That's a conversation for another day.
Under this bill, if someone attempted to transfer money from a state account to a local account, an individual could file a complaint with the Board of Ethics, who would then make a determination on whether that happened or not and act accordingly with civil penalties and bad publicity for that candidate. So you can do it, but you have to at least explain it or be called on the carpet for it at some point in time.
42 10/19/06 - LAW - BILL 060629 Mr. Chairman, I just have a question.
Would you have to dissolve your committee and then form a new committee if you want to transfer the funds?
No. You can keep that committee forever. You can just form a new committee and try to transfer it, but you'd be in violation of the City ordinance.
Any other questions for these witnesses? (No response.)
Thank you. Is there anyone else to testify? (No response.)
Thank you very much. I guess in closing I would say that we're all on the same page here. 43 10/19/06 - LAW - BILL 060629 We're all trying to reach the same objective. We're just having a dialogue about how we get there. Thank you.
Thank you. That concludes the public hearing. We will now convene the public meeting. The Chair recognizes Councilmember Goode for a motion on Bill 11 No. 060629.
Thank you, Mr. Chairman. I move that Bill 060629 be reported out of Committee with a favorable recommendation, that the rules of Council be suspended so as to permit first reading at our next Council session. (Duly seconded.)
There are none opposed. 44 10/19/06 - LAW - BILL 060629 The chair recognizes Councilmember Goode for a motion to suspend the rules for first reading.
Thank you, Mr. Chairman. I move that the rules of Council be suspended so as to permit first reading at our next Council session. (Duly seconded.)
Bill No. 16 060602 is reported out of this Committee favorably and a request made for a rules suspension to allow first reading at our next Council session. That ends our business, thank God. Thank you. (Committee on Law and Government adjourned at 9:35 a.m.) - - - 45 CERTIFICATE I HEREBY CERTIFY that the proceedings, evidence and objections are contained fully and accurately in the stenographic notes taken by me upon the foregoing matter on October 19, 2006, and that this is a true and correct transcript of same. ______________________________ MICHELE L. MURPHY RPR-Notary Public (The foregoing certification of this transcript does not apply to any reproduction of the same by any means, unless under the direct control and/or supervision of the certifying reporter.)