STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA DEPARTMENT OF STATE, ) DIVISION OF ELECTIONS, )

)

Petitioner, )

)

V. ) CASE NO. 94-6409

)

DOROTHY INMAN-CREWS, )

)

Respondent, )

)

RECOMMENDED ORDER

THIS CAUSE came on for formal hearing before Suzanne F. Hood, a Hearing Officer with the Division of Administrative Hearings, on April 21, 1995, in Tallahassee, Florida.

APPEARANCES

For Petitioner: David R. Westcott, Esquire

Assistant General Counsel Florida Department of State Division of Elections

Room 2002, The Capitol Tallahassee, Florida 32399-0250

For Respondent: Robert Augustus Harper, Esquire

300 West Park Avenue Post Office Box 10132

Tallahassee, Florida 32302-2132 STATEMENT OF THE ISSUE

The issue in this case is whether Respondent violated Section 106.143(3), Florida Statutes, by willfully representing in a political advertisement that a person supported her candidacy before obtaining the written permission of that person.

PRELIMINARY STATEMENT

On January 14, 1994, Petitioner Division of Elections (Petitioner) received a sworn complaint from Dennis Murphy alleging that Respondent Dorothy Inman- Crews (Respondent) violated Section 106.143(3), Florida Statutes, during her 1994 re-election campaign for Seat Five of the City Commission of Tallahassee, Florida. Dorothy W. Joyce, Petitioner's Director, signed a Statement of Findings, dated September 26, 1994, finding probable cause that Respondent had willfully violated Section 106.143(3), Florida Statutes. On October 17, 1994, the Florida Elections Commission entered an order finding probable cause that Respondent violated said statute.

On October 31, 1994, Respondent filed a petition for formal hearing pursuant to Section 120.57(1), Florida Statutes. Respondent simultaneously filed a Motion to Dismiss. Carlos Alvarez, Chairman of the Florida Elections Commissions, referred Respondent's petition and motion to the Division of Administrative Hearings on November 10, 1994, for assignment of a Hearing Officer.

Hearing Officer David Maloney originally noticed this case for hearing on March 6, 1995. However, on March 3, 1995, Respondent's counsel filed a Notice of Potential Conflict and a Motion for Continuance. After a telephonic conference call, the undersigned granted Respondent's motion and rescheduled the hearing for April 21, 1994.

As a preliminary matter prior to the hearing, the undersigned heard argument of counsel on Respondent's Motion to Dismiss. This motion was denied.

Petitioner presented the testimony of five (5) witnesses and offered six

1. exhibits which the undersigned admitted into evidence. Respondent testified on her own behalf and presented the testimony of three (3) other witnesses. She offered two (2) exhibits which the undersigned admitted into evidence.

   
   

   Neither of the parties ordered a transcript of the proceedings. At the conclusion of the hearing, the parties elected to file proposed findings of fact and conclusions of law within fifteen (15) days of the hearing. The proposed recommended orders were due on May 8, 1995, because the fifteenth day, May 6, 1995, fell on a Saturday. Respondent timely filed her proposed recommendations on May 8, 1995. Petitioner did not file its proposed recommendations until May 15, 1995. The Appendix to this Recommended Order contains the undersigned's specific rulings on the parties' proposed findings of fact.

   
   

   On May 18, 1995, Respondent filed Objections to Petitioner's Proposed Recommended Order. These objections refer neither to the untimely submission of Petitioner's Proposed Recommended Order nor to the unfair advantage that Petitioner had in making its late filing. Instead, Respondent's objections improperly attempt to dispute certain of Petitioner's proposed findings of fact and conclusions of law. Consequently, the undersigned has given no weight to Respondent's Objections to Petitioner's Proposed Recommended Order.

   
   

   On June 6, 1995, Petitioner filed a Motion to Strike Objections to Petitioner's Proposed Recommended Order and a Notice of Supplemental Authority. Petitioner's motion to strike is moot for the reasons set forth above. The undersigned has given no weight to Petitioner's Notice of Supplemental Authority to the extent it contains legal argument to which Respondent has no opportunity to respond.

   
   

   FINDINGS OF FACT

   
   

   1. Petitioner and the Florida Elections Commission are responsible for enforcing Chapter 106, Florida Statutes.

      
      

   2. In 1993, Respondent qualified as a candidate for re- election to Seat Five of the Tallahassee City Commission. She was defeated for this office in the general election on February 22, 1994.

      
      

   3. On December 27, 1993, Respondent signed a Statement of Candidate indicating that she had received, read and understood the requirements of

      Chapter 106, Florida Statutes, as required by Section 106.023, Florida Statutes. Respondent has run for public office on four different occasions.

      
      

   4. Respondent's 1994 campaign staff was made up of volunteers. Some of these volunteers were supporters who had worked in her prior campaigns. Others were supporters who were participating in a political campaign for the first time. In the early days of the campaign, Respondent met with her supporters at weekly campaign committee meetings. As time went on, Respondent's employment and campaign schedule prevented her from attending these meetings. She also found it increasingly difficult to spend much time at her campaign headquarters.

      
      

   5. In 1994, Respondent used the same system she had used in prior campaigns for registering the names, addresses and telephone numbers of supporters for purposes of organizing the campaign. These cards included a check-list of jobs for which a campaign worker could volunteer. The cards also had a signature line for volunteers who were willing to publicly support Respondent. The cards did not contain a place to indicate the date of the signature.

      
      

   6. Respondent's campaign headquarters was initially staffed entirely by part-time volunteers including, but not limited to, Vivian Pelham. As a result, the card filing system became disorganized. In many instances, there were duplicate cards for campaign supporters. Some of the cards were misplaced or lost as they were in constant use for campaign work in the neighborhood.

      
      

   7. In mid-January, Chuck Cyrus began working at Respondent's campaign headquarters on a full-time basis. He unsuccessfully attempted to organize the card filing system. At the conclusion of the campaign, all of the cards that could be located were stored along with other campaign records.

      
      

   8. On or before January 6, 1994, Respondent's staff decided to prepare a flyer for circulation at a Council of Neighborhood Associations (CONA) meeting. Respondent's husband, Jim Crews, instructed Vivian Pelham and other part-time workers to make telephone calls to people to verify approval of the use of their names on the flyer prior to its distribution. Ms. Pelham did not search for signature cards before she called people because she did not think about it.

      
      

   9. In retrospect, Ms. Pelham knew it was necessary to have signatures of people willing to publicly support Respondent. However, Ms. Pelham did not know that endorsers had to sign cards at any particular time. She was not aware of a difference between "written" and "verbal" approval before a candidate may use a person's name in a campaign advertisement. Rather, Ms. Pelham thought specific "verbal" approval was better than "written" approval as long as an endorser signed a card at some point in time.

      
      

   10. One of the people Respondent's staff contacted by phone was Dennis Murphy. Mr. Murphy refused to allow the use of his name on the flyer. Consequently, Respondent's staff did not include him as an endorser on the campaign advertisement.

       
       

   11. The flyer ultimately contained the names of twenty-two "neighborhood leaders" who endorsed Respondent's candidacy. The flyer listed the neighborhood of each person under their name. The following disclaimer was located at the bottom of the flyer:

       
       

       The above individuals are current or past officers in their neighborhood associations.

       This document does not represent an endorsement by the Council of Neighborhood Associations nor any individual neighborhood group. This is a paid political advertisement paid for by the campaign treasurer.

       
       

       There is no competent persuasive evidence that the flyer, read in its entirety, misrepresented the personal endorsement of the people named therein as an endorsement by a particular neighborhood group.

       
       

   12. The only names included on the flyer which are at issue here are Sterling and Rosemarie Bryant and Dorothy Rose. Mr. and Mrs. Bryant were long- time supporters of Respondent. They worked in Respondent's 1994 and previous campaigns. Ms. Rose supported Respondent in 1994 but was not actively involved in the campaign. At the time Respondent circulated the subject flyer, neither the Bryants nor Ms. Rose had signed a 1994 campaign card stating that they were willing to publicly endorse Respondent. Mr. Bryant did not remember receiving a call about the flyer prior to January 6, 1995. However, Ms. Rose did receive such a call.

       
       

   13. On the evening of January 6, 1994, Respondent arrived at the CONA meeting just before it convened where she reviewed the flyer for the first time. Respondent recognized the name of each person listed on the flyer as a past and/or current supporter. She had no reason to doubt whether the people listed had signed a 1994 campaign card prior to her staff's preparation of the flyer. The document was circulated at the meeting to about thirty-five (35) people, many of whom were listed on the campaign advertisement.

       
       

   14. Dennis Murphy was present at the January 6, 1994, CONA meeting. He did not see the flyer at that time. Days later Mr. Murphy became aware of the flyer. He went to Respondent's campaign headquarters and got a copy of it. On January 14, 1995, Mr. Murphy filed a sworn complaint with Petitioner alleging that Respondent had violated Section 106.143(3), Florida Statutes. He filed the complaint because he thought Respondent failed to get proper authorization to use the names of the people listed on the flyer.

       
       

   15. Soon thereafter, Respondent's staff learned about the complaint informally. Jim Crews instructed Vivian Pelham and other campaign workers to locate signature cards for each person listed on the flyer. If a card could not be located, the workers were to call the people and get a duplicate. No one on Respondent's staff advised her about the rumored complaint.

       
       

   16. Several campaign workers began looking for signature cards. Vivian Pelham could not find a card for Sterling Bryant and called him. Because the Bryants were elderly, Ms. Pelham went to their home where Mr. and Mrs. Bryant signed a card. Ms. Pelham's testimony that she specifically requested the Bryants' signature relative to the flyer and not a subsequent newspaper advertisement is more persuasive than Mr. Bryant's testimony to the contrary. The subsequent newspaper advertisement, published on January 27, 1994, included a picture of Respondent with several neighborhood leaders, including the Bryants.

       
       

   17. Petitioner sent a letter dated January 19, 1994, to Mr. Murphy informing him that it had initiated an investigation of his complaint. Petitioner's letter to Mr. Murphy also requested information concerning the issue of "willfulness." That same day, Petitioner sent Respondent a letter, by regular United States Mail, enclosing a copy of the complaint. This letter gave

       Respondent the opportunity to submit a response in the form of a sworn statement. Respondent's staff received the letter on her behalf but did not bring it to her attention or respond to it in any way because they thought cards were available for each of the people listed on the flyer.

       
       

   18. Petitioner sent Respondent a second letter dated February 21, 1994. This letter was sent certified mail, return receipt requested. Respondent was in her headquarters when the letter arrived on February 23, 1994. She learned about the complaint for the first time when she signed for the letter. Respondent immediately located Petitioner's first letter and initiated a search of her records for the cards in question.

       
       

   19. Respondent was able to locate a card for everyone listed on the flyer except Dorothy Rose. Consequently, Respondent called Ms. Rose and went to her home where she obtained Ms. Rose's signature on a card. Respondent thought she was obtaining a duplicate card for Ms. Rose.

       
       

   20. During her 1994 campaign, Respondent continued to work as Mayor and City Commissioner of Tallahassee, Florida. She also worked full-time for Florida State University School in various administrative positions. Because of the demands of her schedule, she relied on her family, friends and volunteers to run her campaign. On the day before the primary, Respondent became ill and was hospitalized due to the intense stress of the campaign and pressure associated with her employment.

       
       

   21. In a letter to Petitioner dated February 24, 1995, Respondent denied the allegations in the complaint and enclosed copies of signature cards for the people listed in the flyer. The cards did not have dates to indicate when Respondent's supporters signed them.

       
       

   22. By letter dated June 28, 1994, Petitioner requested Respondent to furnish dates for the signatures and the names of the campaign workers who solicited the signatures. Respondent was unable to furnish this information because it was unavailable. With the exception of Ms. Rose's signature card, Respondent did not know when the cards were signed or which of the cards in her possession might have been duplicates of lost or misplaced cards. She was still under the impression that Ms. Rose's card was a duplicate.

       
       

   23. C. L. Ivey investigated the complaint for Petitioner. He randomly selected approximately twelve (12) people from the list of names on the flyer and contacted as many of them as he could reach. Most of them could not remember when they signed the cards. No one expressed an objection to Respondent's use of their name.

       
       

   24. Mr. Ivey subsequently deposed several of Respondent's supporters including Sterling Bryant and Dorothy Rose. The only cards they remembered signing in 1994 were executed after January 6, 1994.

       
       

   25. Mr. Bryant had not seen the subject flyer before Petitioner deposed him. He would have preferred to see a stronger disclaimer than the one at the bottom of the flyer. In 1994, Mr. Bryant was president of his neighborhood association and did not want to give the impression that the association endorsed a particular candidate. However, he did not object to Respondent publicly representing that he personally endorsed her candidacy.

       
       

   26. Respondent did not willfully violate Section 106.143(3), Florida Statutes. Neither she nor her campaign staff were aware that the Bryants and

       Ms. Rose had not signed a card prior to distribution of the flyer. To the contrary, Respondent and her staff knew that each of the people listed on the flyer were Respondent's past and/or current supporters. Their failure to ensure that they had a signature card on file for each person was at most simple negligence.

       
       

   27. The actions of Respondent and her staff after they learned about the complaint were not motivated by a desire to circumvent the election code. At all times, Respondent and her staff attempted to conduct themselves within the letter of the law. After the election, it was not reasonable to expect Respondent to know when the endorsers signed the cards because they were not dated.

       
       

   28. There is no competent persuasive evidence that Respondent received an unfair advantage by publishing the flyer without the prior written approval of the Bryants and Ms. Rose. Moreover, there is no competent persuasive evidence that distribution of the flyer resulted in harm to any person. The Bryants and Ms. Rose continue to espouse their friendship and support for Respondent.

       
       

   29. It did not become clear that the Bryants and Ms. Rose had not timely signed a signature card until after Petitioner completed its investigation. By then, Respondent had no effective means to remedy the situation.

       
       

       CONCLUSIONS OF LAW

       
       

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

       
       

   31. Petitioner has the burden of proving by clear and convincing evidence that Respondent willfully violated Section 106.143(3), Florida Statutes. Ferris

       v. Turlington, 510 So. 2d 292 (Fla. 1987); In re: A. Earl Cheal, FEC 91-007 (1994). The only competent persuasive evidence indicates that Petitioner has not met its burden in this case.

       
       

   32. Section 106.143, Florida Statutes, states in pertinent part:

       
       

       (3) It is unlawful for any candidate or person on behalf of a candidate to represent that any person or organization supports such candidate, unless the person or organization so represented has given specific approval in writing to make such representation. . . .

       * * *

       (7) Any person who willfully violates the provisions of this section is subject to the civil penalties prescribed in s. 106.265.

       
       

   33. Neither Petitioner nor the Florida Elections Commission has defined the term "willful" by rule. Likewise, they have not promulgated a rule requiring candidates to document the date an endorser gives his or her "specific approval in writing" pursuant to Section 106.143(3), Florida Statutes.

       
       

   34. Respondent signed a sworn statement that she received, read and understood Chapter 106, Florida Statutes. However, this statement, without more, is insufficient to find that she or her staff willfully violated the election code. In re: Sandra Barringer Mortham, FEC 94-098 (1994).

   35. Willfulness in the context of Chapter 106, Florida Statutes, "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 v. The Florida Elections Commission, 407 So. 2d 1069, 1070 (Fla. 4th DCA 1981) quoting County Canvassing Board v. Lester, 96 Fla. 484, 118 So. 201, 202-203 (Fla. 1928).

       
       

   36. In Everett v. Gillespie, 63 So. 2d 903 (Fla. 1953), the Florida Supreme Court found insufficient record evidence to revoke a land surveyor's license on grounds of malpractice, malfeasance, gross carelessness, and gross incompetence in the practice of land surveying. This opinion discusses "gross carelessness" as follows:

       
       

       Gross carelessness implies that which is wrong or culpable. It is not necessarily that which is criminal. It has to do with that which is wrong or reprehensible. Culpable implies fault rather than guilt and may not imply malice or guilty purpose.

       
       

       Gillespie, at 903. The Gillespie court concluded that, "[l]ack of what [the Board of Engineer Examiners] may consider as proper degree of alertness absent fraud, criminal neglect or intentional wrong is not sufficient predicate for canceling one's certificate to practice land surveying." Id., at 904.

       
       

   37. Gillespie is not analogous here. The standards for judging the competence of a professional land surveyor are not equivalent to the standards used in determining whether a candidate "willfully" violated the election code. Gillespie does not discuss "culpable carelessness." Its discussion of "gross carelessness" does not arise in the context of a willful statutory violation.

       
       

   38. Sanders and Gillespie read together do not relieve Petitioner from its prima facie burden of proving that Respondent willfully violated the election code. To hold otherwise creates a presumption of willfulness any time experienced candidates or their staffs fail to follow the letter of the law regardless of the circumstances.

       
       

   39. Only the courts and the legislature may create a presumption. Chandler v. Dept. of Health and Rehab. Serv., 593 So. 2d 1183, 1184 (Fla. 1st DCA 1992). Statutes that give an administrative agency authority to apply an

       evidentiary presumption in a disciplinary action are very specific. McDonald v. Dept. of Professional Regulation, 582 So. 2d 660, 663 (Fla. 1st DCA 1991).

       Section 106.143(7), Florida Statutes, does not give Petitioner this authority.

       
       

   40. The courts have also been very specific in this regard. In Ojus Industries v. Brannam, 351 So. 2d 1055, 1056-1057 (Fla. 4th DCA 1977), the court likened culpable negligence as a basis for punitive damages to culpable negligence in criminal proceedings, i.e., that degree of gross, reckless or wanton indifference which raises a presumption of conscious disregard of the rights of others. The courts in Sanders and Gillespie do not create such a presumption for Petitioner's benefit regardless of the difficulty it has in proving an element of an election code violation.

       
       

   41. This case is distinguishable from In re: A. Earl Cheal, FEC 91-007 (1994). In that case, Mr. Cheal ran successfully for the office of County Commissioner of Monroe County. The Florida Elections Commission found that he

       willfully violated Section 106.07(5), Florida Statutes, by personally certifying incorrect and inaccurate campaign reports. In these reports, Mr. Cheal failed to report certain checks he signed and disbursements he authorized.

       
       

   42. In the instant case, Respondent was not involved directly in the preparation of the flyer. She had no reason to doubt whether a signature card was on file for the Bryants or Ms. Rose. Her stressful work and campaign schedule prevented her from maintaining a close inter-relationship with her campaign staff and eventually resulted in her hospitalization. Under these circumstances, Respondent is not responsible for the inadvertent actions of her staff. Johnson v. Harris, 188 So. 2d 888 (Fla. 1st DCA 1966).

       
       

   43. Neither Respondent nor her staff willfully violated Section 106.143(3), Florida Statutes. They knew that each of the people listed on the flyer were past and/or current supporters of Respondent's re-election. The staff did not think about needing signatures on cards before distributing the flyer. Respondent incorrectly assumed that a signature card was on file for each of the endorsers when she reviewed the flyer before its distribution. This assumption was careless and negligent but not "something more than a mere omission to perform a previously imposed duty." Sanders, at 1070.

       
       

   44. Some of the people listed on the flyer signed duplicate cards. The cards of other endorsers were lost or misplaced during the campaign. After learning about the complaint, Vivian Pelham could not find a card for the Bryants. When she visited their home to get their signature, she still was not aware of the need to have specific written approval before a candidate could use an endorser's name publicly.

       
       

   45. Respondent learned of the complaint after the election. At that time, it was not reasonable to expect her to know when the endorsers signed the cards because they were not dated. When she could not locate a card for Dorothy Rose, she went to Ms. Rose's home to get what she thought was a duplicate card.

       
       

   46. After Petitioner completed its investigation, it was clear that the Bryants and Ms. Rose had not signed a card prior to the distribution of the flyer. By then, Respondent had no effective means to remedy the situation.

       
       

   47. There is no competent persuasive evidence that publication of the flyer unfairly benefitted Respondent or harmed any endorser. Respondent's failure to get specific written approval from each of the people listed in the flyer did not involve any degree of conscious wrong or culpable carelessness. Rather, the only competent persuasive evidence indicates that Respondent and her staff attempted to conduct themselves according to the law at all times.

RECOMMENDATION

Based on the above referenced findings of fact and conclusions of law, the undersigned recommends that the Florida Elections Commission enter a Final Order finding that the Respondent did not willfully violate Section 106.143(3), Florida Statutes and dismissing the charges against her.

RECOMMENDED this 14th day of June, 1995, in Tallahassee, Leon County, Florida.

SUZANNE F. HOOD, Hearing Officer 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 14th day of June, 1995.

APPENDIX

The following constitutes the undersigned's specific rulings on the parties' proposed findings of fact pursuant to Section 120.59(2), Florida Statutes.

Petitioner's Proposed Findings of Fact

1. Accepted in Findings of Facts (FOF) number 1.

2. Accepted in FOF number 2.

3. Accepted in FOF number 13.

4. Accepted in FOF numbers 12-13.

5. Accepted in FOF numbers 10 and 14 as modified therein.

6. Accepted in FOF numbers 17-18.

7. Accepted in FOF numbers 5 and 21.

8. Accepted in FOF number 22.

9. Accepted in FOF numbers 23-24.

10. Accepted as modified in FOF 6 & 15.

11. Accepted in FOF numbers 12, 16, and 24-25.

12. Rejected. See FOF numbers 16 and 25.

13. Accepted as modified in FOF numbers 12 and 19.

14. Accepted in FOF 3-4.

    
    

    Respondent's Proposed Findings of Fact

    
    

    Respondent did not number her proposed findings of facts. They are included in her proposed recommended order on page 1 through the first whole paragraph of page 6. The undersigned accepts all of Respondent's proposed findings of facts in substance as modified in FOF numbers 1-29 of this Recommended Order except:

    1. Mr. Murphy's political opposition to Respondent is not relevant; (2) Reference to any conversation between Mr. Murphy and a Mr. Fulford is uncorroborated hearsay; (3) Mr. Murphy's reason for not reporting the alleged violation to the Leon County Supervisor of Elections is not relevant; and (4) Reference to any newspaper articles that Petitioner's investigator relied upon is not relevant and uncorroborated hearsay.

COPIES FURNISHED:

David R. Westcott, Esq. The Capitol, Room 2002 Tallahassee, FL 32399-0250

Robert Augustus Harper, Esq.

P. O. Box 10132 Tallahassee, FL 32302-2132

Honorable Sandra B. Mortham Secretary of State

The Capitol

Tallahassee, FL 32399-0250

Don Bell, Esq.

Dept. of State

The Capitol, PL-02 Tallahassee, FL 32399-0250

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 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.

================================================================= AGENCY FINAL ORDER

=================================================================

STATE OF FLORIDA FLORIDA ELECTIONS COMMISSION

DIVISION OF ELECTIONS,

Petitioner,

v. CASE NO.: 94-009

DOAH CASE NO.: 94-6409

DOROTHY INMAN-CREWS, F.O. NO.: DOS FEC 95-155

Respondent.

/

FINAL ORDER

THIS CAUSE came on to be heard before the Florida Elections Commission at a regularly scheduled meeting held in Tallahassee, Florida on October 6, 1995, pursuant to a Recommended Order entered by Hearing Officer Suzanne F. Hood on June 14, 1995. No exceptions have been filed to the Hearing Officer's proposed findings of fact, however, the Petitioner has filed argument in opposition to the Hearing Officer's conclusions of law and disposition.

The Florida Elections Commission hereby accepts the findings of fact and recommended disposition of the Hearing Officer, however, as set forth below, the Commission modifies the conclusions of law, so as to conform with recent Commission precedent (which was not available to the Hearing Officer at the time the Recommended Order was entered).

Subsequent to the entry of the Recommended Order in the above styled cause, the Florida Elections Commission decided the case of Division of Elections v.

John Tanner, FEC Case No. 93-003 on August 29, 1995. (Attached hereto). In the Tanner case, the Commission adopted a "knowing" or "reckless disregard" standard for determining whether a willful violation of Chapter 106 has occurred. The Division of Elections argues in its exceptions that applying this standard to the facts in the instant cause, would justify finding that the provisions of Section 106.143(3), F.S., were willfully violated by Respondent. The Commission, however, when reviewing the facts as found by the Hearing Officer and accepted by the parties as well as the Commission, concludes that even under the standard of "willfulness" discussed in Tanner, Respondent did not engage in any degree of conscious wrongdoing, or recklessly disregarded the provisions of Chapter 106. The evidence, as found by the Hearing Officer, is clear that Respondent and her campaign staff attempted to abide by the provisions of Chapter 106. Any failure to comply with the provisions of Section 106.143(3), F.S., was inadvertent or, at most, the result of excusable neglect.

In passing, the Commission does note that the Hearing Officer improperly cited a determination by the Division to find no probable cause in the case of In re: Sandra Barringer Mortham, FEC 94-098, (1994) as precedent for the position that Respondent's signing the sworn statement that she had received, read and understood Chapter 106, is insufficient (without more) to find that a violation of Chapter 106 has occurred whenever the provisions of the Florida Elections Code are not complied with.

Since the Commission agrees with the Hearing Officer that there is not substantial evidence to prove "willfulness" of any violation of Chapter 106 in the instant cause, the citation to Mortham supra, has no bearing on the ultimate outcome. The Commission, however, does find it appropriate to reiterate as it stated in Tanner supra, that:

In Re Mortham should not be used as precedent in this or any other case. As provided in Section 106.25(4), F.S., the Division of Elections investigates all sworn complaints and determines whether or not probable cause exists. If the Division determines that probable cause does not exist, and the matter

is not appealed to the Commission, then the case is closed, and was never heard by the Commission. The Commission in no way approved or disapproved of the Division's action in Mortham. Since it

is the Commission, and not the Division, which is empowered to adjudicate violations of Chapter 106, only a Commission decision, not a Division decision, can be used as a legal precedent.

Thus, a determination by the Division of Elections that no probable cause exists, should not be considered as Commission precedent when determining whether, under a particular fact situation, a willful violation of Chapter 106 has occurred.

Wherefore, based upon the foregoing, it is hereby determined that Respondent committed no willful violation of Chapter 106, and the complaint filed against her be and the same is hereby DISMISSED.

DONE AND ORDERED this 4th day of December, 1995.

CARLOS ALVAREZ, CHAIRMAN FLORIDA ELECTIONS COMMISSION

cc: David R. Westcott, Esquire Robert Augustus Harper, Esquire

Docket for Case No: 94-006409

Orders for Case No: 94-006409