Feds Seek Input On National Voting Problems

 

A revitalized federal commission on election oversight invites public input just as a major national study predicts massive problems in 2016 because of outmoded election tabulation software.

The much-embattled and belittled U.S. Election Assistance Commission wants public comments to help guide its work following appointment in January of three commissioners and renewed funding after GOP congressional critics sought to shut it down.

U.S. Election Assistance Commission logoMeanwhile, U.S. localities face a crisis in tabulating votes accurately and securely because many of them are using outdated software that can fail or even be hacked. That’s according to America’s Voting Technology Crisis, a study by the Brennan Center, which announced its findings last month at the National Press Cluband in an Atlantic Magazine article.

"The 2016 campaign is already underway, with nearly two dozen candidates vying to be the next president," wrote study co-authors Lawrence Norden and Christopher Famighetti. "Americans may have no idea who they will vote for next year, but they are likely confident that when they show up at the polls, their votes will count. And for the vast majority, of course, they will. But with rapidly aging voting technology, the risk of machines failing is greater than it has been in many years."

This column is part of the Justice Integrity Project's extensive coverage of election-tampering strategies. These include both the kinds of financial and technology snafus decried by the Brennan Center and also the more partisan if not sinister plans by elections operatives to thwart wins by the opposition.

Democrats emphasize restrictions on registration and access to polls, including limits on voting hours and absentee ballots. Republicans claim "voting fraud" of ineligible voters casting ballots, thereby justifying tighter restrictions.

Independent analysts, including our JIP, allege also that polling and election tabulation software have been corrupted at key locales and times to swing important elections. My 2013 book Presidential Puppetry: Obama, Romney and Their Masters (revised and updated this month) summarizes the compelling evidence for such corrupt practices while noting also the reasons why the Election Assistance Commission, similar authorities, the major political parties, and the mainstream media (including foundations) are extremely reluctant to probe the evidence.

Indeed, Congress failed to name any members of the EAC for years and withheld funding, thereby thwarting its original mission upon its creation in 2002 of helping states administer honest elections.

Therefore, the reconstituted EAC's invitation for public input ideally enables more focus on the full range of threats to fair elections. This would go beyond those problems that a politically fragile federal body is likely to probe — or even the important dangers that the Brennan Center has been highlighting. 

Today's column is a news analysis (rather like our report last spring on the success of Nigeria's election due to vigorous anti-fraud measures) and our overview of election fraud allegations, first published in 2011 and since updated.

Backgrounder: Election Assistance Administration

As summarized by a Wikipedia entry and news reports:

The Election Assistance Commission (EAC) is an independent agency of the United States government created by the Help America Vote Act of 2002 (HAVA). The Commission serves as a national clearinghouse and resource of information regarding election administration. It is charged with administering payments to states and developing guidance to meet HAVA requirements, adopting voluntary voting system guidelines, and accrediting voting system test laboratories and certifying voting equipment. It is also charged with developing and maintaining a national mail voter registration form.

History: The HAVA dictates the EAC will create voluntary guidelines for voting systems, maintaining a clearinghouse of information regarding election administration procedures including testing and certification of election equipment, and administering the Election Assistance and Help America Vote Programs. In 2003, Congress appropriated US$1.5 billion for HAVA. In 2010, the EAC lost its quorum of Commissioners, preventing many normal operational duties, and bills were subsequently drafted to end the Commission. Specifically, United States Representative Gregg Harper introduced a bill to end the EAC and transfer some of its authority to the Federal Election Commission. On 16 December 2014, the U.S. Senate confirmed three Commissioners (Thomas Hicks, Matthew V. Masterson, and Christy A. McCormick), giving the EAC back the quorum of Commissioners it needs to operate.

Hicks and Masterson attended the Brennan Center forum Sept. 17 at the National Press Club. They noted that the ECA welcome public input on what the EAC should be doing. The commission's site for comments is here, although few topics are currently open for feedback aside from the section on grants.

Brennan Center Report

The Brennan Center report focused on budget and technology challenges facing local officials, not the half dozen or so more partisan controversies of voter fraud, vote restriction, and vote tabulation tampering.

"In a close election," the Brennan Center authors Norden and Christopher Famighetti, "the performance of that old equipment will come under a microscope. Fifteen years after a national election trauma in Florida that was caused in significant measure by obsolete voting equipment — including hanging chads and butterfly ballots — it may be hard for many Americans to believe that the U.S. could face such a crisis again. But unless the right precautions are taken today and in the coming months and years, there is a significant risk that the story on Election Day will be less about who won or lost, and more about how voting systems failed."

The looming crisis in America’s voting technology was first brought to national attention last year by President Obama’s bipartisan Presidential Commission on Election Administration (PCEA), which offered a stern warning about the “widespread wearing out of voting machines purchased a decade ago.” Over the past 10 months, the Brennan Center, where we work, surveyed more than 100 specialists familiar with voting technology, including machine vendors, independent technology experts, and election officials in all 50 states, to study how widespread this looming crisis really was.

We found bad news and good. First, the bad: The problem of aging voting technology reaches nearly every corner of the United States. Unlike voting machines used in past eras, today’s systems were not designed to last for decades. In part this is due to the pace of technological change. No one expects a laptop to last 10 years. And although today’s machines debuted at the beginning of this century, many were designed and engineered in the 1990s.

"Even worse," they continued, "while many jurisdictions acknowledge that their machines need to be replaced, they haven’t sorted out who should pay for it. Counties often argue the states should pay, while many states argue this has always been a local responsibility. In many cases, both hold out hope that they can get some federal support, but that seems very unlikely. “Some jurisdictions seem to be saying we’re just going to wait until another catastrophe and then maybe Congress will pay for it,” Tammy Patrick, a senior adviser with the Bipartisan Policy Center, told us. “This is not a good plan.”

On the other hand, the PCEA’s report spurred conversations, and in many cases, spending on new equipment. Several counties and states will have new machines before the 2016 election, and some counties are even developing their own voting systems, which offer the hope of technology that is designed around the needs of voters.

While it is impossible to say how long any particular machine will last, experts agree that for machines purchased since 2000, the expected lifespan for the core components of electronic voting machines is generally between 10 and 15 years. The majority of machines in use in the United States are perilously close to or exceed these estimates. In 43 states, the oldest machines will be at least 10 years old next November. In 14 states they will be more than 15 years old.

Separately, the Brennan Center has advocated for Voter Registration Modernization, which it describes as a comprehensive plan to automatically register every eligible American to vote. "It would update our country’s outdated and error-prone voting system, which blocks millions of eligible citizens from the polls. Research shows the policy could add up to 50 million eligible voters while saving money, increasing efficiency and accuracy, and curbing the potential for fraud." The center described its plan as having four components:

  1. It requires states to adopt electronic systems and take responsibility for registering citizens so they are automatically added to the voter rolls when they interact with government agencies.
  2. It makes sure that once citizens are signed up, they remain registered when they move within their states.
  3. It allows citizens to register to vote online.
  4. Finally, it gives people the opportunity to register or update their information at the polls.

What's Next?

As the 2016 elections draw closer, our project will continue to report on major developments.

In the meantime, excerpted below are two of our previous reports, each containing extensive background. DC Experts Hail Historic Nigerian Elections As Success, But Note Challenges Ahead reported on the innovations that helped bring widespread internal and global praise to Nigerians for what was generally regarded as a successful presidential election and succession last April under difficult conditions.  Cutting Through Hype, Hypocrisy of Vote Fraud Claims was our 2011 backgrounder, since updated, documenting the menace of electronic voting machine tampering.

Estimates are that parties, candidates and "independent" committees will spend more than two billion dollars on the 2016 elections. So, it's worth examining early and often how they can be conducted fairly. The column above about an academic study and small federal agency with less than modest clout may seem out of keeping our usual fare on this site, which often focuses upon political scandal and even  crime. Yet there is no contradiction. All things are possible when the stakes are high.

On a more hopeful note, a Gallup survey of some 190 nations announced last year indicated that residents of Nigeria self-evaluated their nation as one of the world's most corrupt, including in government practices. Nonetheless, they worked hard to hold a highly regarded election transferring power to a reform administration, according to both local and international evaluators. Yes, all things are possible.

 
 
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Justice Integrity Project Backgrounders

Justice Integrity Project, DC Experts Hail Historic Nigerian Elections As Success, But Note Challenges Ahead, Andrew Kreig, April 10, 2015. Nigeria’s first-ever transfer of power between parties via a presidential election marks a great success April 1, according experts at two conferences April 9 in Washington, DC.  “When power alternates between parties the likelihood of coups goes down and confidence in democracy goes up,” said American University Professor Carl LeVan, speaking at a forum organized by former U.S. Ambassador to Nigeria Robin Sanders. “This will be good for competitive democracies and those other issues like security and corruption.”

Justice Integrity Project, Cutting Through Hype, Hypocrisy of Vote Fraud Claims, Andrew Kreig, Aug. 13, 2011. Recent events show why election theft deserves much more scrutiny than it receives from either Michael Connellgovernment officials or news reporters. Most dramatically, a federal judge has released the 2008 testimony of GOP IT guru Michael Connell, right, as shown on a campaign website. The Ohio resident died in a mysterious plane crash that year after anonymous warnings he would be killed if he testified about his work helping the Bush-Cheney ticket win in 2000 and 2004.

 

Related News Coverage

The Brennan Center, America’s Voting Technology Crisis, Lawrence Norden and Christopher Famighetti, Sept. 15, 2015. Cross-posted on The Atlantic.  The 2016 campaign is already underway, with nearly two dozen candidates vying to be the next president. Americans may have no idea who they will vote for next year, but they are likely confident that when they show up at the polls, their votes will count. And for the vast majority, of course, they will. But with rapidly aging voting technology, the risk of machines failing is greater than it has been in many years. In a close election, the performance of that old equipment will come under a microscope. Fifteen years after a national election trauma in Florida that was caused in significant measure by obsolete voting equipment—including hanging chads and butterfly ballots—it may be hard for many Americans to believe that the U.S. could face such a crisis again. But unless the right precautions are taken today and in the coming months and years, there is a significant risk that the story on Election Day will be less about who won or lost, and more about how voting systems failed.

Brennan Center, America's Voting Technology Crisis: 2016 and Beyond, Sept. 17, 2015. The Brennan Center hosted a discussion about the challenges with today's voting machine technologies. Experts discussed current risks, changing technologies, and possible solutions and paths for reform.

 

Marta SteeleOpEdNews, Brennan Center for Justice Panel, Press Club, 9/17: "America's Voting Technology Crisis,"  Marta Steele, Sept. 19, 2015. The Brennan Center's held a stimulating event, America's Voting Technology Marta SteeleCrisis, at the National Press Club announcing a September 15 report published by the Center. Panelists: NPR correspondent and elections specialist Pam Fessler; Edgardo Cortes, Commissioner of Elections, Virginia Department of Elections; Neal Kelley (via Skype), Registrar of Voters, Orange County, California; and Doug Lewis, recently retired, long-time executive director of The Election Center, an umbrella organization that educates, trains, and brings together election officials from throughout the country. (Marta Steele, shown at left, is the author of Grassroots, Geeks, Pros, and Pols: The Election Integrity Movement's Rise and Nonstop Battle to Win Back the People's Vote, 2000-2008.)

BradCast via Pacifica syndicated radio stations, Hand-Counting Paper Ballots in Columbia County, NY, Brad Friedman, Oct. 3 and 4. On today's BradCast: Our interview with Virginia Martin and Jason Nastke, the Democratic and Republican Election Commissioners (respectively) of Columbia County, NY, where they refuse to certify results until every hand-marked paper ballot is publicly counted by hand after each election.

The two Commissioners joined me to respond to a recent Brennan Center study warning that the nation's voting computers and tabulators are aging and failing and should be replaced as soon as possible with new computer systems. I agree with the first part of their findings, not so much with the second part, both of which we discussed in a recent BradCast with Lawrence Norden, co-author of that well-reported study. Martin and Nastke don't seem to agree either, finding that hand-marked paper ballots, publicly hand-counted by human beings, remain the best way to assure that every voter's intent is accurately and transparently tallied. "In reality, computing is maybe 50 years old," the Republican Nastke tells me on today's program. "We use paper ballots and paper is hundreds, if not thousands of years old. Historical documents continue to exist to this day. So, what we know is that when a voter votes on a paper ballot that there is an absolute way for the voter's intent to be determined, and properly counted."

 

 

Jonathan Simon "Code Red"University of the District of Columbia Clarke School of Law, Video of Code Red: Computerized Election Fraud Panel, produced by Joe Libertelli, May 22, 2015 (video: 179 mins.). On May 20, 2015, the UDC Clarke School of Law hosted a book talk on CODE RED: Computerized Election Theft and the New American Century  by Jonathan Simon, a Boston-based attorney and co-founder and director of the Election Defense Alliance. The program was kicked off by Andrea Miller, Director of  People Demanding Action, who provided a brief history of politics and methods used to suppress votes and voters starting with slavery. She is shown at left in the photo. Simon spoke not only on the facts and history of computerized election fraud -- which he described as a "rolling coup" -- but also on the difficult challenge of maintaining optimism in the face of the massive inertia that he and other election integrity activists have faced.  He spoke of the clear need for a mass movement in protection of democracy against the forces of anti-democracy.

After Simon's frank and sobering talk, Virginia Martin, Co-Election Commissioner of Columbia County, NY, described her own very positive experience, working with a Republican co-commissioner, to assure 100% hand-counted, completely transparent, observable audits of voted ballots since optical-scan voting machines were introduced in her county, providing a national model for optical-scan using jurisdictions nationwide. All three speakers then responded to numerous questions from the audience.  Of particular interest was the potential for the use of Ms. Martin's auditing technique nationally and the enormous potential to ally "traditional" groups working against voter suppression with the election integrity movement. 

USA Today, House panel OKs ending Election Assistance Commission, Deborah Barfield Berry, June 5, 2013. Republicans moved a step forward Tuesday in their continuing effort to eliminate the Election Assistance Commission, which was created to help states run elections. A House committee approved legislation Tuesday to shut down the federal commission set up more than 10 years ago to help states improve their election systems. "This agency needs to go,'' said Mississippi Republican Rep. Gregg Harper, who introduced the bill to eliminate the Election Assistance Commission. "This agency has outlived its usefulness and to continue to fund it is the definition of irresponsibility.''

The House Administration Committee approved the legislation by voice vote. This marks Harper's third attempt in four years to close the bipartisan independent commission, which he called a "bloated bureaucracy.'' It is not clear when the full House will vote on the measure. Harper said he's working to persuade a senator to introduce a companion measure in that chamber. The chairwoman of the Administration Committee, Republican Rep. Candice Miller of Michigan, called the Election Assistance Commission "a prime example of waste shielded by bureaucracy." She said the agency no longer helps voters or election officials. "There's just no need for this agency to exist," she said. "We need to shut it down.''

Voting rights advocates counter that the commission is still needed, particularly since some states still experience long lines at polls and other problems on Election Day. "There's a great need for it,'' said Hilary Shelton, director of the Washington Bureau of the NAACP. "There's a need for those responsibilities that the EAC was given by statute ... We want to see the EAC strengthened so it can do what it was designed to do.'' Congress created the Election Assistance Commission in 2002 as part of the Help America Vote Act to help states improve their voting systems. The commission serves as a source of election-related information and data. Since 2004, it has provided states with technical advice in running elections and has disbursed more than $3.2 billion in federal funds to help them upgrade voting machines, train poll workers and buy new equipment. About $18 million remains.

Wikipedia, Election Assistance Commission, The Election Assistance Commission (EAC) is an independent agency of the United States government created by the Help America Vote Act of 2002 (HAVA). The Commission serves as a national clearinghouse and resource of information regarding election administration. It is charged with administering payments to states and developing guidance to meet HAVA requirements, adopting voluntary voting system guidelines, and accrediting voting system test laboratories and certifying voting equipment. It is also charged with developing and maintaining a national mail voter registration form.

Responsibilities: The EAC is tasked with performing a number of election-related duties including:

    1. Creating and maintaining the Voluntary Voting System Guidelines
    2. Creating a national program for the testing, certification, and decertification of voting systems
    3. Maintaining the National Mail Voter Registration Form required by the National Voter Registration Act of 1993 (NVRA)
    4. Reporting to Congress every two years on the effects of the NVRA on elections
    5. Administering federal funds to States for HAVA requirements
    6. Administering federal funds for the development of innovative election technology, including pilot programs to test election technology
    7. Studying and reporting best practices of effective administration
    8. Communicating information on laws, technologies, procedures, studies, and data related to the administration of federal elections to those responsible for formulating or implementing election law and procedures, to the media, and to other interested persons

EAC Commissioners: On December 16, 2014, the U.S. Senate voted unanimously to confirm EAC nominees Thomas Hicks, Matthew V. Masterson, and Christy A. McCormick as members of the commission. One vacancy remains on the four-member commission.

  • Thomas Hicks served as the Senior Elections Counsel and Minority Elections Counsel on the U.S. House of Representatives Committee on House Administration from 2003 to 2014, where he oversaw all Committee matters relating to Federal elections and campaign finance. Prior to that, he was a Policy Analyst for Common Cause, a non-profit, public advocacy organization working in support of election and campaign finance reform. He also previously served as a Special Assistant in the Office of Congressional Relations at the U.S. Office of Personnel Management. He received his J.D. from the Catholic University of America, Columbus School of Law and his B.A. in Government from Clark University (Worcester, MA).
  • Matthew V. Masterson served as Deputy Chief of Staff and Chief Information Officer for the Ohio Secretary of State until this year. He previously served as Deputy Director of Elections from 2011 to 2013. He held multiple roles at EAC from 2006 to 2011, including Deputy Director for the Testing and Certification Division, Attorney and Advisor, and Special Assistant and Counsel to Chair Paul DeGregorio. He received a B.S. and a B.A. from Miami University and a J.D. from the University of Dayton School of Law.
  • Christy A. McCormick served as a Senior Trial Attorney in the Voting Section of the Civil Rights Division at the U.S. Department of Justice, a position she held from 2006 until this year. She was detailed by the Deputy Attorney General to be Senior Attorney Advisor and Acting Deputy Rule of Law Coordinator in the Office of the Rule of Law Coordinator at the U.S. Embassy in Baghdad, Iraq from 2009 to 2010. From 2003 to 2006, she served as a Judicial Clerk to the Honorable Elizabeth A. McClanahan in the Court of Appeals of Virginia. She was an Assistant Attorney General and Assistant to the Solicitor General in the Office of the Attorney General of Virginia from 2001 to 2003. She was a Judicial Law Clerk in the Seventh Judicial Circuit Court of Virginia from 1999 to 2001. She received a B.A. from the University of Buffalo and a J.D. from the George Mason University School of Law.

Brennan Center, Myth of Voter Fraud. It is important to protect the integrity of our elections. But we must be careful not to undermine free and fair access to the ballot in the name of preventing voter fraud. The Brennan Center’s ongoing examination of voter fraud claims reveal that voter fraud is very rare, voter impersonation is nearly non-existent, and much of the problems associated with alleged fraud in elections relates to unintentional mistakes by voters or election administrators. Our report "The Truth About Voter Fraud" reveals most allegations of fraud turn out to be baseless — and that of the few allegations remaining, most reveal election irregularities and other forms of election misconduct. Click here for additional resources on fraud. Voter fraud is not acceptable in our elections, but we must find a balance and not impose solutions that make it harder for millions of eligible Americans to participate in our democracy.

National Press Club, ACLU and Heritage Foundation speakers clash over voter identification laws, Lorna Aldrich, Feb. 23, 2012. Laura Murphy of the American Civil Liberties Union (ACLU) and Hans von Spakovsky of the Heritage Foundation clashed repeatedly over the effects of state laws that require voters to show government-issued photo identification at a Feb. 23 National Press Club Newsmakers news conference. Both speakers are portrayed at right in a photo by Noel St. John of the Press Club including also moderator Tejinder Singh. The National Conference of State Legislatures reports that 15 states now require voters to show photo IDs before voting. In 2012, 31 states have legislation pending that would add or strengthen voter-ID laws, according to the state legislatures conference.

Von Spakovsky opened by saying that the key principle of any election is to make sure who is voting by requiring identification and determining citizenship. “Those kinds of requirements also increase public confidence in our election process,” he said. Voter-identification requirements not only prevent fraud by individuals but also prevent double voting and voting in the names of dead people still on the rolls," Spakovsky said. Murphy responded that the statistics were flawed because they did not account for African-American migration to Georgia and Indiana. She added that the statistics could only count people who voted and could not address the number of people prevented from voting because of the laws. Minorities, low income people and rural people faced hardships acquiring photo IDs even in states that issue them for free, Murphy said. She reasoned that many people do not have a birth certificate or other required documentation to support issuance of a photo ID. They may not have the money, time off from jobs, or transportation to acquire the supporting documents, she added. “There are hundreds of polling places but there are not hundreds of places issuing photo IDs,” Murphy said.

New Yorker, The Voter-Fraud Myth, Jane Mayer, Oct. 29, 2012. The man who has stoked fear about impostors at the polls: Hans von Spakovsky, a Republican lawyer who served in the Bush Administration, has promoted strict voter-I.D. laws. Mainstream election experts say that Spakovsky has had an improbably large impact. Richard L. Hasen, a law professor at the University of California at Irvine, and the author of a recent book, The Voting Wars, says, “Before 2000, there were some rumblings about Democratic voter fraud, but it really wasn’t part of the main discourse. But thanks to von Spakovsky and the flame-fanning of a few others, the myth that Democratic voter fraud is common, and that it helps Democrats win elections, has become part of the Republican orthodoxy.” In December, Reince Priebus, the chairman of the Republican National Committee, wrote, “Election fraud is a real and persistent threat to our electoral system.” He accused Democrats of “standing up for potential fraud — presumably because ending it would disenfranchise at least two of its core constituencies: the deceased and double-voters.” Hasen believes that Democrats, for their part, have made exaggerated claims about the number of voters who may be disenfranchised by Republican election-security measures. But he regards the conservative alarmists as more successful. “Their job is really done,” Hasen says. “It’s common now to assert that there is a need for voter I.D.s, even without any evidence.” 

 

Catching Our Attention on other Justice, Media & Integrity Issues

Washington Post, Deadly blasts in Turkey point to worsening instability, Erin Cunningham, Oct. 10, 2015. Twin explosions at a peace rally killed at least 95 people and injured 246 more as people gathered to call for an end to violence between Turkey's security forces and Kurdish separatists.

YouTube, Peach protesters secure rescue route, Turkish police block ambulances from getting to the scene of the bombing in Ankara targeting Kurdish peace protesters. But the crowd beats the police out of the way of ambulance drivers seeking to rescue victims in the Turkish capital. The demonstration was to demand the end to Turkish leaders' military offensive against Kurdish organizations, which has been escalating since the end of July. Turkish President Recep Erdogan began bombing the YPG and PKK Kurdish military units while ostensibly striking ISIS. The bombings came in the last stages of an election campaign.

Turks go to the polls on Nov. 1. Erdogan’s AKP Party seeks the votes to change the constitution to concentrate more power in the his hands. ‘HDP leader Selahattin Demirtas blamed the government. He said the attack was part of the same campaign as the bombing of an HDP rally in the southeastern city of Diyarbakir on the eve of June elections and a suicide bombing blamed on Islamic State in Suruc near the Syrian border in July, which killed 33 mostly young pro-Kurdish activists.

Washington Post, U.S. refuses to provide full details on hospital strike that killed 22, Tim Craig, Missy Ryan and Thomas Gibbons-Neff, Oct. 10, 2015. The military has said that the hospital was “mistakenly struck” in an attempt to support Afghan security forces but holes remain in its narrative of the worst example of errant U.S. air power in recent years.

Washington Post, GOP staffer fired from House panel investigating Benghazi attacks, Tom Hamburger and Carol D. Leonnig, Oct. 10, 2015. A Republican staffer from the House Select Committee on Benghazi has been fired after he says he developed concerns about the politicized nature of the panel’s investigation. The criticism from an experienced Republican intelligence investigator comes amid growing Democratic Party complaints that the special committee was on a mission to undermine former secretary of state Hillary Rodham Clinton as she launched her bid for the presidency. A spokesman for the committee denied the allegations from the former staffer, Bradley Podliska, a major in the Air Force Reserve.

Podliska issued a formal statement through his lawyer Saturday afternoon. “My non-partisan investigative work conflicted with the interests of the Republican leadership, who focused their investigation primarily on Secretary Clinton and her aides,” Podliska said, especially after reports surfaced in March that Clinton has used a private e-mail server. “The families of the Americans who died in the Benghazi attacks deserve to find out the truth about Benghazi, but to do that a thorough, non-partisan investigation must be conducted of all agencies and officials involved in Benghazi,” the statement said. In a news release Saturday, the committee called Podliska’s claims “transparently false,” stating that he “was terminated for cause.” The written statement, attributed to a committee spokesman, did not mention Podliska by name but said the former employee had shown poor judgment.