November 20, 2020 Brian G. Svoboda 

D. 

F. +1.202.654.9150 

BY EMAIL AND U.S. MAIL 

Federal Election Commission 

Audit Division 

Mr. Kendrick Smith 

1050 First Street, NE 

Washington, DC 20002 

Email: audit@fec.gov;

Re: Response to the Draft Final Audit Report on Dr. Raul Ruiz for Congress 

Dear Mr. Smith: 

On behalf of our client, Dr. Raul Ruiz for Congress ("the Committee''), we write to respond to 

the Draft Final Audit Report (the “DFAR”) of the Audit Division. 

After fieldwork, the response to the Exit Conference, and the response to the Interim Audit 

Report, the auditors have finally concluded that the Committee’s “financial activity for the audit 

period is materially correct and no further action is warranted.” See DFAR at 3. The only issue 

remaining is a lone, proposed finding of $5,899, claiming potential personal use of campaign 

funds through “[p]ersonal vehicles ... used by committee staff for both personal and campaign 

activities.”1

 Virtually all of the payments at issue were to gas stations,2 in a campaign for office 

in a district spanning nearly 6,000 square miles.3 

Like the misstatement finding, the potential personal use finding should be removed. The 

Commission should issue a final audit report that makes clear that the audit ended with no 

adverse finding against the Committee. 

A. The Proposed Personal Use Finding Is Plainly Erroneous and Should Be Vacated 

The proposed finding of potential personal use remains plainly erroneous. The auditors took 

special rules written for the purchase or lease of a campaign vehicle—not at issue here—and 

applied them generally to staff gas purchases, which are routine expenses on campaigns, 

especially in large, sprawling jurisdictions like California’s 36th District. By the auditors’ 

1

 DFAR at 7. 

2 Id. at 7; see also email from William A. Antosz to Marty Kuest (May 4, 2020). 3 See https://www2.census.gov/geo/maps/cong_dist/cd113/cd_based/ST06/CD113_CA36.pdf. The remainder were a 

$22.11 disbursement identified as for parking, and two $7.95 disbursements identified as made to Anchor General 

Insurance. See Email from William A. Antosz to Marty Kuest (May 4, 2020). 
 

 

 

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November 20, 2020 

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reckoning, every time a campaign employee buys gas for campaign travel in a personal vehicle, 

the campaign must keep a contemporaneous log to document dates and expenses related to 

personal use, because the gas purchases are “vehicle expenses.” See DFAR at 7.4 

However, there exists no clear precedent or advance notice to the regulated community stating 

that 11 C.F.R. § 113.1(g)(8)’s log requirement applies to gas purchases. For example, when the 

Commission published an interpretive rule that expressly addressed the reporting of 

reimbursements to individuals for travel expenses, it did not indicate the potential application of 

the “log” requirement.5

 The October 19, 2020 memorandum from the Office of General Counsel 

(“OGC”), which accompanies the DFAR, contains no citation to any matter under review, audit, 

advisory opinion, or other authority that would purport to apply the eighteen-year-old log 

requirement to gas purchases, as the DFAR now purports to do. 

OGC’s memorandum asserts that the log requirement extends beyond campaign-purchased 

vehicles, citing the 2002 rulemaking that created it. However, that same rulemaking said that the 

log requirement “is based on the analysis in AO 2001–3,” which involved the campaign purchase 

of a vehicle.6

 Plainly, section 113.1(g)(8)’s log requirement was meant to cover the unusual 

situation of buying or leasing a campaign vehicle—not to cover common occurrences like when 

staff buy gas or rent cars for campaign travel. 

While not at issue in this audit, the auditors’ interpretation of the log requirement would reach 

campaign rental cars, also. Section 113.1(g)(1)(ii)(D)’s substantive personal use restriction 

contains a carve-out for when a vehicle is used for de minimis personal activities. However, 

section 113.1(g)(8)’s log requirement does not: it applies whenever the vehicle is used for “both 

personal use and either campaign or office-holder use ...”7 Thus, under the auditors’ 

interpretation, whenever a campaign rents a car, and the staffer takes a detour to go to the store, 

the log requirement would apply. This would significantly and confoundingly increase the 

compliance burdens for presidential and other major campaigns that extensively use rental cars. 

Even if one were to suppose that the log requirement applies every time a staffer buys gas for 

campaign travel in a personal vehicle or makes a personal stop in a campaign rental car, the 

DFAR still makes a critical error. It treats the absence of a log under 11 C.F.R. § 113.1(g)(8) as 

if it were a substantive violation of § 113.1(g)(1)(ii)(D)’s personal use prohibition. But section 

4

 The DFAR does not explain how the $22.11 identified as for parking, nor the two $7.95 disbursements identified 

as for insurance, can be presumed to “involve both personal use and either campaign or office-holder activity,” and 

thus could be subject to the log requirement. See DFAR at 7. 5 See Reporting Ultimate Payees of Political Committee Disbursements, 78 Fed. Reg. 40,625 (2013). 6

 Disclaimers, Fraudulent Solicitation, Civil Penalties, and Personal Use of Campaign Funds, 67 Fed. Reg. 76,962, 

76,974 (2002). 

7

 11 C.F.R. § 113.1(g)(8). See also Advisory Op. 2001-03 (imposing log requirement even when campaignpurchased vehicle is used only for de minimis personal travel). 
 

 

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November 20, 2020 

Page 3 

113.1(g)(8) is a recordkeeping requirement, while section 113.1(g)(1)(ii)(d) is an expenditure 

limitation. While the campaign manager’s declaration in this audit may not have provided the 

same specific “dates and expenses” that a contemporaneous log would have provided, see OGC 

Memorandum at 8, his declaration is still probative evidence that no personal use occurred. 

The Commission should remove the personal use finding from the report. If that finding stands, 

then the Committee would continue to face a charge that neither the law nor Commission 

precedent supports. For the first time in eighteen years, the regulated community would learn 

that the mileage log requirement, commonly understood to apply to campaign-purchased 

vehicles, is triggered every time a staffer buys a tank of gas, or rents a car and uses it for de 

minimis personal travel. The Commission should not use this audit as the occasion to put a wide 

swath of campaigns into sudden, purported non-compliance, advancing a novel interpretation of 

a rule that has been in place for nearly two decades. 

B. The Full Commission Should Revise the Draft Final Audit Report to Make It 

Completely Clear That There Is No Adverse Finding Against the Committee 

The Draft Final Audit Report comes to the Commission in an unusual way: no quorum of 

Commissioners appears to have weighed in on its findings. Normally, the Commission considers 

an interim audit report involving matters like these “in executive session prior to the report being 

sent to the committee being audited.”8

 Here, the auditors provided the Committee with the 

Interim Audit Report on May 1, 2020, when there were only three Commissioners; a fourth 

Commissioner to establish quorum arrived on June 5.9 The auditors transmitted the DFAR on 

November 2, 2020, when the Commission again lacked quorum. 

Under recent practice, this gap in oversight would permit the auditors to take subsequently 

rejected findings and place them on the public record. Recently, when an audit has concluded, 

the Commission has published all audit-related documents from the interim audit report onward 

on the Commission website.10 Here, that practice would result in the publication of two key 

documents—the Interim Audit Report and the Draft Final Audit Report—that no quorum of four 

Commissioners appears ever to have reviewed. The first document contains a misstatement 

finding that the auditors have since reversed, and both documents contain a spurious personal use 

finding. 

Also, the format in which the auditors draft and publish the report can create the mistaken 

impression that a committee committed violations, even when the final report asserts none. 

8 Procedural Rules for Audit Hearings, 74 Fed. Reg. 33,140, 33,141 (2009). 

9 See https://www.fec.gov/updates/week-june-1-5-2020/. 10 See, e.g., https://transition.fec.gov/audits/2016/AuditReport_2016_MarshaBlackburnforCongress.shtml (most 

recent example of published audit documents). This was not always the case, as a review of audits released in 2009 

and before reflects. See https://www.fec.gov/legal-resources/enforcement/audit-search/. 
 

 

 

 

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Because the auditors treat the audit report as a “living document,” starting with an interim audit 

report and supplementing it at each stage of the process, the Commission—or even the 

auditors— might reject a finding, and yet the report will still present that finding. For example, 

in this Draft Final Audit Report, the reader twice sees the phrase, “Misstatement of Financial 

Activity” in bold, oversized text.11 One must read closely to find the key phrase: “[T]he Audit 

staff determined that RRFC’s financial activity for the audit period is materially correct and 

no further action is warranted.”12 

The Commission should ensure that the final audit report in this matter fully and fairly reflects 

the actual findings of the Commission itself. Instead of presenting adverse findings in bold type 

and noting in the “fine print” that they were later rejected, the Commission should say simply 

and clearly that there ultimately were no findings—as past audits have done. 

CONCLUSION 

We respectfully request that the Commission issue a final audit report that reflects the 

Committee’s material compliance with the Act.13 

We appreciate the Commission's consideration of this response. 

Very truly yours, 

Brian G. Svoboda 

Varoon Modak 

Counsel to Dr. Raul Ruiz for Congress 

BGS:tcb 

11 See DFAR at 3, 4. 12 See id.. 13 The Committee would not seek an audit hearing at this time, hoping that the Commission might appropriately 

resolve these matters without further burden.