STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF STATE, DIVISION ) OF ELECTIONS, )

)

Petitioner, )

)

vs. ) CASE NO. 94-4641

)

JOHN TANNER, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, this cause came on for formal hearing before P. Michael Ruff, duly-designated Hearing Officer of the Division of Administrative Hearings, on October 28, 1994, in Tallahassee, Florida.

APPEARANCES

For Petitioner: David R. Westcott, Esquire

Florida Elections Commission The Capitol, Room 2002

Tallahassee, Florida 32399-1007

For Respondent: Christopher R. Haughee, Esquire

AKERMAN, SENTERFITT & EIDSON, P.A.

216 South Monroe Street, Suite 200 Tallahassee, Florida 32301

STATEMENT OF THE ISSUE

The issue to be resolved in this proceeding concerns whether the Respondent willfully violated Section 106.141(1), Florida Statutes, by failing to properly account for and report the expenditure of certain campaign funds.

PRELIMINARY STATEMENT

This cause arose upon the filing of a sworn complaint against the Respondent with the Division of Elections by Shirley Bundy on January 12, 1993. The Division of Elections conducted an investigation of the matter and determined that probable cause existed to believe that the Respondent had violated Section 106.141(1), Florida Statutes. The Florida Elections Commission ultimately entered an order of probable cause on June 28, 1994 finding that there was probable cause to believe that the Respondent had violated the above section by failure to properly dispose of surplus campaign funds within 90 days after he withdraws, becomes unopposed, is eliminated, or elected. The Respondent timely requested a formal hearing to contest the probable cause finding, and the matter was referred to the Division of Administrative Hearings and the undersigned Hearing Officer.

The cause came on for hearing as noticed. The Petitioner presented the testimony of Charles Leonard Ivey, its investigator, and in rebuttal, the testimony of Lynne Quimby-Pennock. The Petitioner offered two exhibits which were admitted into evidence, including a composite exhibit consisting of the investigative report with attached exhibits. The Respondent presented the testimony of Marsha Tanner and John Tanner. One exhibit was admitted in evidence on behalf of the Respondent.

Upon conclusion of the proceeding, the parties obtained a transcript thereof and sought the opportunity to submit proposed findings of fact and conclusions of law in the form of Proposed Recommended Orders. Those pleadings were timely submitted and have been considered in the rendition of this Recommended Order. Specific rulings are made on the proposed findings of fact in the Appendix incorporated by reference herein.

FINDINGS OF FACT

1. The Respondent was elected as State Attorney for the Seventh Judicial Circuit in 1988. He defeated the incumbent at that time, Stephen Boyles. Thereafter, in 1992, the Respondent was a republican candidate for re-election as State Attorney in that circuit. The Respondent was challenged in that republican primary in 1992 by Steve Alexander, a former Assistant State Attorney, under both Mr. Boyles and the Respondent. The campaign was a nasty and personal one, focusing on the Respondent's religious beliefs, including his prison ministry. The Respondent was defeated by 57 votes of more than 40,000 votes cast.

   
   

2. Upon being defeated in the primary, the Respondent elected to support the democratic candidate in the general election, Ted Doran. The Respondent sent letters on his campaign stationery through the law office of Kermit Coble, a partner with the firm of Coble, Woods, Seps, Clayton and Teal. Two groups of letters were sent out: one to supporters of the Respondent in the primary and another to all members of the Florida Bar for the Seventh Judicial Circuit. The postage on these letters was provided through Mr. Coble's postage meter at his law firm and totaled $260.00. There came a time when Mr. Coble and representatives of his law firm called the Respondent to request reimbursement for the postage funds expended, the $260.00.

   
   

3. The Respondent, therefore, wrote a check to reimburse Mr. Coble for the postage early on the morning of October 1, 1992. He used a check drawn on the campaign account. Typically, Mrs. Tanner wrote the check, both on the campaign checkbook and on their personal checkbook. The Respondent did not normally write checks. However, on this occasion, the Respondent did not want to bother Mrs. Tanner with the issuance of the reimbursement check. She was a student at the time, in graduate school, in addition to having to care for two daughters, the youngest of which was causing her parents considerable difficulty.

   
   

4. Although the Respondent had read Chapter 106, Florida Statutes, in connection with embarking on his political campaign, he did not recall a specific prohibition which barred the use of campaign funds for the purpose involved in this proceeding. The use of the campaign checkbook did not trigger any awareness, at the time the Respondent issued the check, of any inappropriateness of using campaign funds in that manner. He did not give his action the thoughtfulness and attention that he should have, by his own admission. He conceded that he was pre-occupied with other duties and responsibilities at the time and failed to adequately consider the legal

   ramifications and consequences of his actions. At about this time, he was heavily involved in the preparation of a "double murder case", one of several significant cases in his office that he was attempting to complete prior to the end of his term of office. In fact, he had just recently completed the trial of serial killer, Aileen Wuornos. He had been keeping very long hours, arising before dawn and working late at night in order to prepare for each day's work and complete it.

   
   

5. Several weeks later, he realized he had made an error in using campaign funds to pay for the postage charge. He requested Mrs. Tanner to reimburse the campaign account from their personal funds. He then relied upon and trusted his wife, Mrs. Tanner, who was also his campaign treasurer, to accomplish the reimbursement payment. He did not actually follow up on his request to her and gave it no further thought, assuming that it had been done. The Respondent and his wife have been married for 25 years, and she served as his campaign treasurer for both of his political campaigns in 1988 and 1992. She collected and deposited contributions to the campaign, wrote checks for campaign expenses, and she was responsible for completing and timely filing campaign reports with the Division of Elections and with local elections officials in her capacity as campaign treasurer.

   
   

6. Mrs. Tanner acknowledged that the Respondent had asked her to reimburse the campaign account from their personal funds and that she had simply forgotten to do it. This time in question was a difficult time for her and her family. She was a student in graduate school and working as the mother of teenage daughters. Their younger teenage daughter was having behavioral problems which made her difficult to manage. Additionally, at the same period of time, the Respondent's mother was ill and required medical attention, including emergency room visits. In summary, it was a stressful, difficult time for the Respondent and his wife. Mrs. Tanner was quite distracted from the orderly, normal performance of her duties as a mother and student, as well as a campaign manager. She simply forgot to make the reimbursement, after being requested to do so by the Respondent.

   
   

7. The Respondent and his wife filed the campaign treasurer's report dated October 5, 1992, which covered the period of August 28, 1992 through October 5, 1992. This report did not include any reference to the expenses related to the letters sent on behalf of Ted Doran. A note attached to the report, however, indicated that an amended report would be filed. The final campaign treasurer's report, covering the period October 5, 1992 through December 12, 1992 did include an expense of $260.00 to reimburse the firm of Coble, Woods, Seps, Clayton and Teal for the postage in question. The report did not note any payment from the Tanners' personal funds to the campaign as reimbursement for that postage.

   
   

8. The Respondent and his wife signed the campaign treasurer's reports, as required by law, certifying the correctness and completeness of the report, which the Respondent believed to be the case at the time he signed it. He testified that he reviewed the report for accuracy, completeness and legal compliance and did not note the lack of an entry showing a personal reimbursement to the campaign account. He stated that the report was accurate and complete and that it contained all financial activities of the campaign for that period in question.

   
   

9. On January 12, 1993, however, a sworn complaint was filed by Shirley Bundy, former chairwoman of the Volusia County Republican Party Executive Committee, against the Respondent. She complained of the use of the Tanner

   republican campaign stationery to support a democratic candidate. The complaint also stated that a "reliable source" had informed Mrs. Bundy that Kermit Coble had paid the postage for the letters the Respondent sent in support of democratic candidate, Ted Doran.

   
   

10. Thereafter, pursuant to statutory authority, the Division of Elections initiated an investigation in response to the Bundy complaint. Investigator,

    C.L. Ivey, was assigned to conduct the investigation. He is an experienced investigator, having over 31 years of experience with the Florida Department of Business Regulation and the Florida Department of Professional Regulation.

    
    

11. On March 8, 1993, the Respondent filed an initial response to the complaint. He attributed the complaint to political retribution by Mrs. Bundy. He stated at that time that the postage cost had been reimbursed to Mr. Coble "with a personal check". He believed that that had, indeed, been done at the time he made that representation.

    
    

12. The Respondent testified at hearing that he summarily put together his initial response to the complaint without reviewing his records or consulting his wife about the matter. He knew that she had been under a lot of stress at the time and did not even mention it to her. He was in the process of re- establishing his private law practice and was very pre-occupied with that and, therefore, relied exclusively on his memory of the facts involved in making the initial response to the complaint.

    
    

13. Shortly thereafter, as part of his investigation, Mr. Ivey sought certain information and records from the 1992 campaign from Mrs. Tanner. She asked the Respondent about the request for information and, after further discussion and review of pertinent records, the Respondent and Mrs. Tanner learned that the Respondent's initial response, indeed, was incorrect. This was the first time that the Tanners had discussed the matter since the Respondent's original request for Mrs. Tanner to reimburse the campaign account from their personal account.

    
    

14. On March 23, 1993, the Respondent filed a notarized, corrected response to the complaint, in which he explained the circumstances of his initial response, as well as explaining the circumstances surrounding the payment of the postage to Mr. Coble's law firm and the failure of Mrs. Tanner to reimburse the campaign funds from their personal funds, as he had requested her to do. The Respondent stated in this corrected response that in the last months of his term as State Attorney, he was pre-occupied with other matters and "was just too busy and did not give this matter my personal attention".

    
    

15. Simultaneously with making this corrected response, the Respondent sought to reimburse the general revenue fund of the state for $260.00 with his personal check. He was informed that he needed to file an amended campaign report and to sent his reimbursement check with that report. He promptly did so and made his reimbursement to the general revenue fund at that time.

    
    

16. Mr. Ivey completed his investigation and submitted his report on April 28, 1993. The report was based solely on documentary evidence. Mr. Ivey did not interview, depose, or otherwise interrogate the Respondent or Mrs. Tanner. Following the completion of his report, Mr. Ivey had no further contact with the case. Mr. Ivey had a case load at that time of 30 or 40 cases assigned to him. Mr. Ivey testified that he tries to complete investigations within a six-month period. He testified at hearing that because of the case load and limited resources available to him, many investigations had to be handled through

    correspondence, without an interview or a deposition. In this case, one of the reasons why an interview or deposition was not conducted, according to Mr. Ivey, was because the Respondent admitted all of the acts necessary to make out a violation of the statute, except for denying the element of willfulness. The investigative report stated that the Respondent had acknowledged the improper payment of the postage and had taken steps to correct it. The report also states that the Respondent did not acknowledge that the violation was willful.

    
    

17. More than one year after Mr. Ivey completed his report, on May 19, 1994, the Division of Elections found probable cause to believe that a willful violation of Section 106.141(1), Florida Statutes, had occurred. A letter from Barbara Linthicum informing the Respondent of that finding was sent on May 19, 1994 to the Respondent. He testified, however, that he had never received that letter. The Florida Elections Commission issued its order of probable cause on June 28, 1994.

    
    

18. It has not been established by sufficient, preponderant evidence of record that the Respondent willfully violated Section 106.141(1), Florida Statutes, as alleged. The probable cause finding was based only on an investigation which consisted of a review of documents and not upon consideration of any testimony or statements by either the Respondent or Mrs. Tanner. The weight of the evidence establishes that the Respondent acted in a careless manner but that his conduct was not "willful", as that term is employed and intended in Section 106.l41(1), Florida Statutes.

    
    

    CONCLUSIONS OF LAW

    
    

19. The Division of Administrative Hearings has jurisdiction over the subject matter of and the parties to this proceeding. Section 120.57(1), Florida Statutes.

    
    

20. The burden of proof in an administrative proceeding is on the party asserting the affirmative of the issue. See, Department of Transportation v.

    J.W.C. Company, Inc., 396 So.2d 778 (Fla. 1st DCA 1981). Thus, the Petitioner herein has the burden of proving that the Respondent willfully violated Section 106.141(1), Florida Statutes. That burden has not been met.

    
    

21. Section 106.141(1), Florida Statutes, provides, in pertinent part, as follows:

    
    

    . . .

    1. Each candidate who withdraws his candidacy, becomes an unopposed candidate, or is eliminated as a candidate or elected to office, shall, within 90 days, dispose of the funds on deposit in his campaign account and file a report reflecting the disposition of all remaining funds. Such

       candidate shall not accept any contributions, nor shall any person accept contributions on behalf of such candidate, after the candidate withdraws his candidacy, becomes unopposed, or is eliminated or elected. . . .

       (4)(a) Except as provided in paragraph (b),

       any candidate required to dispose of funds pursuant to this section shall, at the option of the candidate, dispose of such funds by any of the

       following means, or any combination thereof:

       1. Return pro rata to each contributor the funds which have not been spent, or have not been obligated to be spent, with respect to a campaign which has been conducted.

       2. Donate the funds which have not been spent or have not been obligated to be spent to a charity organization or organizations which meet the qualifications of s.501(c)(3) of the Internal Revenue Code, with respect to a campaign which has been conducted.

       3. Give the funds which have not been spent or have not been obligated to be spent to the political party of which such candidate is a registered member.

       4. Give the funds which have not been spent, or have not been obligated to be spent, with respect to a campaign which has been conducted;

          1. In the case of a candidate for state office, to the state, to be deposited in either the Election Campaign Financing Trust Fund or the General Revenue Fund, as designated by the candidate; or

          2. In the case of a candidate for an office of political subdivision, to such political subdivision, to be deposited in the general fund thereof.

       
       

22. The Respondent has admitted, and the evidence has established, that he committed the acts in question which make out a violation of the above- referenced statute, except for the element of willfulness. The Respondent, that is, after he was no longer a candidate, expended funds from his campaign account for a purpose prohibited by the statute. However, that evidence, alone, does not establish a violation of the statute.

    
    

23. Section 106.25(3), Florida Statutes, states:

    
    

    106.25 Reports of alleged violations to Department of State; disposition of findings.--

    (3) For the purposes of Florida Elections Commission jurisdiction, a violation shall mean the willful performance of an act prohibited by this chapter or the willful failure to perform an act required by this chapter.

    
    

24. Clearly, unless the Respondent's acts were willful in nature, then no violation has been established. Neither the Division nor the Florida Elections Commission has defined the term "willful" by rule. The statute gives no further guidance than that set forth above in terms of the interpretation of willfulness. In a separate case, the Division of Elections has concluded that the mere fact that a candidate has filed a statement under oath that she received, read and understands Chapter 106, Florida Statutes, is not sufficient to consider that actions taken in violation of the election code were done willfully. In Re Sandra Barringer Mortham, Case No. FEC 94-098 (1994). In that case, the candidate in question deposited $50,000.00 from the republican party of Florida into her campaign account in violation of the requirement that a candidate may only receive $25,000.00 of the $50,000.00 contribution prior to 20

    days before the general election. Upon receipt of information that acceptance of the contribution was in excess of the contribution amounts permitted by law, the candidate directed the treasurer to write a check returning the excess contribution to the party. The Respondent's action was consistent or analogous to the actions of the candidate involved in the Mortham case. His directions to correct the error, however, were not carried out by his campaign treasurer.

    
    

25. Webster's Ninth New Collegiate Dictionary, at page 1350, (Merriam- Webster, Inc. 1986), defines willful as "obstinately and often perversely self- willed: 'done deliberately; intentional'". It is provided in Black's Law Dictionary, at page 1773 (Revised Fourth Edition, 1968), that "willful" means "proceeding from a conscious notion of the will; intending the result which actually comes to pass; designed; intentional; conscious; knowing; done with stubborn purpose, but not with malice". In Sanders v. The Florida Elections Commission, 407 So.2d 1069 (Fla. 4th DCA 1981), a city commission candidate appealed a finding by the Florida Elections Commission that he had "willfully" violated a provision of the Elections Code. The candidate had ordered sample ballots to be printed and distributed. The candidate did not inspect the sample ballots before asking his wife to deliver them to a campaign worker for distribution. The ballots failed to contain the statutorily-required "paid political advertisement" disclaimer. In support of its determination of a willful violation, the Florida Elections Commission found the candidate's actions "careless and negligent" and he failed to exercise "reasonable diligence and due care". Id. at 1070. In reversing the Florida Elections Commission, the court quoted approvingly from County Canvassing Board v. Lester, 96 Fla. 484, 118 So.201, 202-203 (Fla. 1928):

    
    

    Every voluntary act of a person is intentional, and therefore in a sense willful, but generally speaking, and usually when considering statutes of the character mentioned, a voluntary act becomes 'willful' in law only when it involves some degree of conscious wrong on the part of the actor, or at least culpable carelessness on his part, something more than a mere omission

    to perform a previously imposed duty.

    
    

    Sanders, supra. at 1070. Accordingly, the court found that "A careless and negligent failure to comply with Section 106.143 Fla.Stat. does not constitute a 'willful' violation as required by the statute." Id. This rule is equally applicable to violations of Section 106.141(1), Florida Statutes.

    
    

26. Under the above-stated holding, the Respondent must have been more than merely careless and negligent. In order for a violation to be established, he must have acted with some degree of conscious wrong or culpable carelessness. Culpability is a concept more often encountered in criminal cases and other punitive proceedings. The FEC is authorized to impose civil penalties and culpability is an appropriate consideration in these circumstances. Culpability is also a factor in civil cases involving claims for punitive damages. One illustrative case provides instruction where the Court of Appeals for the Fourth District in Ojus Industries v. Brannam, 351 So.2d 1055, 1056-1057 (Fla. 4th DCA 1977), stated:

    
    

    Culpable negligence is obviously something more than negligence. A more recent Supreme Court opinion on punitive damages states:

    The intentional infliction of harm, or a reck- lessness which is the result of an intentional act, authorize punishment which may deter future harm to the public by the particular party involved and by others acting similarly. Cases in this category may be likened, in general

    terms, to culpable negligence in criminal proceedings.

    
    

    And culpable negligence as a basis for punitive damages has been defined by the Supreme Court:

    
    

    The character of negligence necessary to sustain an award of punitive damages must be of a 'gross

    and flagrant character, evincing reckless disregard of human life, or of the safety of persons exposed to its dangerous effects, or there is that entire want of care which would raise the presumption of a conscious indifference to consequences, or which shows wantonness or recklessness, or a grossly careless disregard of the safety and welfare of

    the public or that reckless indifference to the rights of others which is equivalent to an intentional violation of them.

    
    

    This definition, boiled down to its simplest elements, is described in the Florida Standard Jury Instructions as involving:

    
    

    . . . malice, moral turpitude, wantonness, willfulness or reckless indifference to the rights of others . . . .

    
    

27. It is clear that egregious conduct is required to sustain a finding of willfulness. No such conduct exists in this case. The Respondent's actions may have been careless, indifferent, and negligent, but they do not evince the deliberation, conscious thought and intent necessary to be "willful", as intended by Section 106.25, Florida Statutes. The Respondent, as demonstrated by the above Findings of Fact, had been through a harsh and trying campaign, coinciding with a stressful period of time involving his work on some difficult capital felony cases. His attentions and efforts were focused on wrapping up essential matters of this nature in the State Attorney's office, since his term was soon to end. He was further occupied by stressful family matters and the later difficulties of establishing his private law practice. Consequently, he did not give this matter the attention it deserved, as he candidly admits.

There was no reckless or conscious disregard of the law but, rather, a failure to abide by the letter of the law through a lack of adequate attention. While his actions were not appropriate, they fall short of the willfulness required to make out a violation of Section 106.141, Florida Statutes. Accordingly, it must be concluded that a violation of that statute has not been established.

RECOMMENDATION

Based on the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is

RECOMMENDED that a Final Order be entered dismissing the complaint against John Tanner for the reasons found and concluded above.

DONE AND ENTERED this 28th day of February, 1995, in Tallahassee, Florida.

P. MICHAEL RUFF Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 28th day of February, 1995.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-4641

Petitioner's Proposed Findings of Fact

1-14. Accepted, but subordinate to the Hearing Officer's findings of fact on this subject matter.

1. Rejected, as not entirely in accord with the weight and credibility of the preponderant evidence of record and subordinate to the Hearing Officer's findings of fact on this subject matter. The Hearing Officer has made the findings of fact on this subject matter after weighing, considering and determining the candor and credibility of the witnesses and evidence.

2. Accepted, in the sense that the Respondent, if he had adequately reflected, would have known that the campaign check written was in violation of the law but not in terms of the violation being willful, intentional and conscious at the time he wrote the check. Consequently, this proposed finding of fact is subordinate to the Hearing Officer's findings of fact on this subject matter.

3. Rejected, as contrary to the Hearing Officer's findings of fact made on this subject matter after determining the candor and credibility of the witnesses and the evidence.

4. Accepted, only in terms of a mere recitation of the attempted proof of the Respondent concerning bias on the part of agency personnel. It has not been found that such bias, if any existed, had an effect on the prosecution of this case by the agency and the Respondent has candidly receded from that position in a post-hearing letter to the Hearing Officer and opposing counsel.

Respondent's Proposed Findings of Fact

The Respondent's proposed findings of fact are accepted, to the extent that they are in accord with the findings of fact made by the Hearing Officer.

Proposed findings number 28 and numbers 30 through 39 are rejected as being immaterial and unnecessary to an adjudication of this dispute.

COPIES FURNISHED:

David R. Westcott, Esq. Florida Elections Commission The Capitol, Room 2002 Tallahassee, FL 32399-1007

Christopher R. Haughee, Esq. AKERMAN, SENTERFITT & EIDSON, P.A.

216 South Monroe Street, Suite 200 Tallahassee, FL 32301

Honorable Sandra B. Mortham Secretary of State

The Capitol

Tallahassee, FL 32399-0250

Don Bell, Esq. General Counsel Department of State The Capitol, PL-02

Tallahassee, FL 32399-0250

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit to the agency written exceptions to this Recommended Order. All agencies allow each party at least ten days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the Final Order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the Final Order in this case.

Docket for Case No: 94-004641

Orders for Case No: 94-004641