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Divy Agnihotri/Megan Fleming Disqualified From 2016 UPUA Election

Our disclaimer regarding Onward State’s coverage of the 2016 UPUA elections — which we now use, God willing, for the final time.

The verdict is in: Divy Agnihotri and Megan Fleming have been disqualified from the 2016 UPUA election for racking up enough campaign violations to put them over the spending limit.

Agnihotri and Fleming had their day in “court” yesterday at an Elections Commission hearing in the HUB for the five elections code violations the campaign pled not guilty to earlier in the week. The most serious charges stem from the leaked campaign Groupme messages, first published on PSU Underground, that have beleaguered the candidates for the last week, which showed numerous current UPUA members privately conspiring to violate the elections code and disparage their opponents.

At the 90-minute hearing, the Elections Commission moved through each of the five violations, explaining the code, questioning witnesses, and giving Agnihotri and Fleming (well, primarily Fleming, who, despite being second on the ticket, probably did 95% of the talking) the opportunity to defend their case and ask questions. It took the Commission more than three hours to reach a verdict.

The sanctions imposed by the Elections Commission are as follows:

  • Early Campaigning (two counts) — 8 percent reduction of spending limit
  • Slander — 17 percent reduction in spending limit
  • Sabotage by Obstruction to Fair Campaigning — 10 percent reduction of spending limit

Each vote was unanimous by the five Commissioners. The Commission uses the preponderance of the evidence standard to evaluate violations — which means that they were found guilty because the Commission believed that it was “more likely than not” that a violation occurred.

UPUA does not actually extract money from candidates, but fines are taken off the top of each candidate’s $600 spending limit. These four violations add up to a 35 percent reduction in the campaign’s spending limit. Agnihotri/Fleming was reduced to a $390 cap by the violations. According to the Commission, the Agnihotri/Fleming campaign has already spent $431.50 — it is likely their election day t-shirts made up the bulk of that expense — putting them $41.50 over the limit and subsequently resulting in a disqualification.

The Slander violation — the most serious of all the charges — was addressed last, but it seemed to be the easiest for the Commission to prove. The Groupme message revealed that Agnihotri and Fleming conspired with former UPUA ID Chair Ryan Belz (now the Students for Trump president) and former UPUA Speaker John Wortman to shop around a column to Onward State and the Daily Collegian accusing the Ford campaign of trying to remove the four Greek seats in the Assembly. This, according to the Commission, constituted the encouragement of defamatory remarks.

“Personally I think it’s worth [writing the op-ed] and then we deny any relation to them,” Agnihtori said in the Groupme while sharing a screenshot of a text message sent to Wortman where he, according to the Commission’s ruling, encouraged the column to be written.

Although the Groupme messages also reveal the campaign was worried about a potential slander charge, Fleming argued that discussing a negative column alone was just the campaign “weighing their options” and was not acted upon. Fleming also argued that such a column had been in the works for the year prior and was unrelated to the campaign — a fact that Belz testified to at the hearing.

“We reject the respondents’ rationale that because no article was written against the Ford/Jordan Executive Ticket there was no violation,” the Commission wrote in its ruling. “The encouragement of defamatory remarks, regardless of the outcome or the origin, is a violation of the Elections Code.”

The Commission did not consider other potential attempts to defame, such as the investigation of Ford’s criminal history and discussions about leaking information to the media about an underage drinking charge — although Fleming did address those as well.

“All the information, like Terry’s charge, is available, we were just looking at it all to see what our options are, investigate the other ticket and see what’s on the table,” she said. “Looking up public records is not defamatory.”

Sabotage, the next most serious charge, was a little more difficult to prove. The Groupme messages revealed an attempt to distract now-write in candidate Anthony Mitchell from turning in his elections packet by the 5 p.m. deadline. The Groupme dialogue in question went like this:

Abby Baker (Agnihtori/Fleming campaign manager, current UPUA rep): If anyone is in the HUB, district Anthony Mitchell. Now.
Rachel Harrison (UPUA At-Large candidate): ?
Alexandra Leventis (Agnihotri/Fleming supporter, current UPUA Rep): He needs 200 sigs.
Harrison: In 20 minutes?
Fleming: Yes. And we’re worried Joe [Arias, Head Elections Commissioner] will make an exception for him.
Harrison: Fuck ok I’ll look for him.

Harrison admitted to going to the HUB to look for Mitchell after these messages but says she never saw him and would not have acted upon Baker’s request anyway.

“I didn’t want to go to the HUB, but I felt pressured,” Harrison said during her hearing testimony. “It’s not part of my character at all to do something like that. It’s not who I am.”

Mitchell testified that he did, in fact, pass by Harrison on the way to class, but she did not attempt to talk to him and he was not aware of any attempts at the time to sabotage his campaign.

Fleming insisted that the only reason Harrison was sent to the HUB was to monitor the Elections Commission’s office to make sure Mitchell was not permitted to turn his form in after the 5 p.m. deadline (hence the comment about the Head Elections Commissioner making an exception).

The Commission actually found the candidates not guilty of this charge because Sabotage, as it is defined in the Elections Code, only relates to the destruction of another candidate’s campaign materials. However, the Commission used what amounted to sua sponte review power and tacked on a similar charge called “Sabotage By Obstruction to Fair Campaigning” which includes vague language about elections being “proper, fair, efficient, and standard.” Essentially, the Commission viewed the campaign’s pressure on Harrison to attempt to undermine Mitchell’s potential campaign as an affront to fairness and deemed it necessary to add on this charge.

“The Commission has determined that the evidence we were provided supports the charge that the Divy/Fleming Executive Ticket had an intent to prevent Mr. Mitchell from fairly seeking candidacy and by virtue, to pursue a fair campaign,” the ruling read.

Moments after the ruling was handed down, the campaign fired back in a slew of emails to the media questioning the Commission’s decision to use broad power to tack on an additional violation. These emails continue to come in as of 2 p.m. on March 26.

“The only violation regarding Anthony Mitchell was sabotaging his campaign,” the email, sent from Fleming’s account, read. “At no point throughout this process were we charged with a violation for SABOTAGE BY OBSTRUCTION TO FAIR CAMPAIGNING, however we were found guilty of that charge. The commission does not have the authority to add additional violations after the initial review hearing, and subsequent hearing with the commission.”

The two early campaigning violations — the most minor of the charges, and the most common UPUA elections code violation over the years — involved the campaign’s social media accounts and website. Evidence showed that the campaign’s Twitter and Facebook pages were live before the campaigning period officially began, complete with campaign logos and banners on the page.

Fleming argued that they only launched the social media pages to ensure that the name they wanted was booked. When presented with a timestamped screenshot showing the live website, Fleming argued that it could be a forgery — anyone can change the date and timestamp on their computer to make it look like they found the live website before the campaigning period, she insisted.

“As you can see this is very easy to do,” Fleming said while showing the Commission how to do it on her own laptop. The Commission mentioned in its ruling that five witnesses, including two members of the Elections Commission, saw the live website before the official campaigning period.

The now-only presidential candidate Terry Ford is also being charged with one count of early campaigning. It is unlikely this will put him over the spending limit, and he will appear on the ballot next Wednesday barring any future violations.

Although it didn’t matter in the end, Agnihotri/Fleming was found not guilty of a mutual endorsement violation. Anthony Zarzycki, who is running for At-Large Rep., said he intended to sign a mutual endorsement form for fellow At-Large candidate Michael Straw. He signed two forms, and somehow, one of those forms ended up in the hands of the Agnihtori/Fleming campaign which it turned in to the Commission. Zarzycki claims he was surprised to see his name appear on their endorsement page.

“I signed two forms but I thought both were to endorse [Straw],” Zarzycki said. “I hadn’t met with both candidates yet and I wanted to keep my options open.”

Fleming argued that Zarzycki ‘s “ignorance” should not result in a violation. Zarzycki was added to the Fleming/Aghnihotri campaign Groupme shortly after he signed the mutual endorsement forms, which Fleming suggested, for lack of his objection, meant he knew and had intended to endorse the ticket.

There was conflicting testimony on whether the mutual endorsement form included Agnihotri’s name at the top of it when Zarzycki signed it.

“The Elections Commission found that the testimonies given during the hearing were conflicting and unclear,” the ruling read. “Therefore, The Commission has ruled that the evidence provided was insufficient to support a violation and subsequent sanction.”

Fleming, a journalist and former Managing Editor of Onward State, used her closing remarks to announce that the ticket was considering legal action against the media for “invasion of privacy’ in publishing the Groupme messages. Onward State and PSU Underground, which first broke the story and published the leaked messages, are the only two outlets to publish the actual messages, while the Daily Collegian has referred only in vague terms to “the Groupme messages.”

“We have grounds for legal action,” Fleming said. “We have grounds and have had conversations and are continuing to have conversations that we can get these messages taken down for the fact that it is, by law, a violation of privacy to publish highly personal and embarrassing information about another, even if completely true.”

“The fact that these messages were slid under the door, the fact that they were published in a number of media outlets is an invasion of our privacy.”

The Commission didn’t buy the admissibility argument, however, and ended its ruling with straightforwardness.

“As result, the above mentioned sanctions have resulted in the Divy/Fleming Executive Ticket exceeding their spending limit,” the ruling concluded. “Pursuant to Sec. 7.5 of the Elections Code, the Divy/Fleming Executive Ticket’s candidacy has been disqualified.”

The Agnihotri/Fleming campaign (well, mostly Fleming) fought back as soon as the ruling was released, shooting off a slew of emails to the media and publishing a blog post, called “An Explanation” on the campaign website.

“Given the testimony and subsequent ruling the hearing should be deemed inadmissible because the witnesses were able to watch the hearing,” an email sent from the campaign email account stated. “As everyone knows the witnesses were deliberately left out of the room. Megan pointed out at the beginning of the hearing that while we opened the hearing to the public, we didn’t not open it to everyone on the internet. Onward State live streamed (using an app called Periscope) and anyone was able to watch it online.”
“A member of our campaign sent us [a screenshot] showing that Anthony Zarzycki was watching the live stream despite the fact he wasn’t allowed in the hearing.”

With the permission of the Elections Commission, Onward State did indeed Periscope the hearing and it shows Zarzycki as a viewer. The Elections Code does not address sequestering of witnesses, and its unclear how this would have affected the rulings.

The emails continued.

“It was clearly stated at the end of the hearing that the media would only receive what we were found guilty and not guilty of, and they would not know the explanations or the vote totals,” another campaign email read. “You can watch the Periscope online and hear this at the end. We were told by a member of the media the explanations were included in the email they received. I ask that you clarify with the media as soon as possible that they can only report on what we were and were not found guilty of, and that given that we were over our total. The explanations and vote totals were explicitly supposed to remain private.”
Onward State has chosen to report on the explanations and vote totals as they were provided to us in the Commission’s ruling, which is part of the public record of UPUA.

“​​While making all of this information public will not change the verdict, we thought it was important to tell the full story regarding the decisions leading up to our disqualification,” the candidates wrote on their explanation page. “We have dozens of shirts and stickers that can’t be returned. If you’re interested, let us know. Thank you for all of your continued support throughout this process.”

Divy Agnihotri now becomes only the second presidential candidate in UPUA history to be disqualified from an election, and the first since UPUA’s 1st ever Assembly, joining the eccentric Jay Bundy in this distinction.

As it currently stands, there is one official ticket running for executive consideration in Ford/Jordan. However there are also two declared write-in campaigns vying for office against the duo: Patric Cines and Michael Straw and Anthony Mitchell and Ziko Khayat.

Election Day is Wednesday, March 30.

Here is the full Elections Commission ruling written by Deputy Commissioner for Candidacy Eric Love:

About the Author

Lexi Shimkonis

Lexi is an editor-turned-staff writer who can often be found at either Irving's or the Phyrst (with the chances she'll have her backpack being the same). Lexi is a senior hailing from Spring City, PA (kind of) and studying Civil Engineering. Please email questions and/or pleas for an Instagram caption to [email protected], or for a more intimate bond, follow her on Twitter @lexshimko.

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