vs. ) Case No. 98-4130
Respondent. )
Pursuant to notice, a formal hearing was conducted in this case on January 28, 1999, in Tampa, Florida, before Lawrence P. Stevenson, a duly-designated Administrative Law Judge of the Division of Administrative Hearings.
For Petitioner: Michael T. McGuckin
Assistant General Counsel Florida Elections Commission The Capitol, Room 2002 Tallahassee, Florida 32399-1050
The issue presented for decision in this case is whether Respondent committed the violations of Sections 106.07(5) and 106.19(1)(c), Florida Statutes (1995), as set forth in the Order of Probable Cause and accompanying Statement of Findings issued by the Florida Elections Commission on August 13, 1998.
By Order of Probable Cause issued on August 13, 1998, the Florida Elections Commission ("the Commission") found probable cause to believe that Respondent John Morroni violated Sections 106.07(5) and 106.19(1)(c), Florida Statutes (1995). Both alleged violations related to the campaign treasurer’s report for Representative Morroni covering the reporting period of July 1, 1995, through September 31, 1995, and several in-kind contributions listed therein. On September 10, 1998, Representative Morroni filed with the Commission a Petition for Administrative Hearing and a Motion to Dismiss. On September 18, 1998, the Commission forwarded both the Petition for Administrative Hearing and the Motion to Dismiss to the Division of Administrative Hearings for assignment of an Administrative Law Judge to hear Representative Morroni’s Petition pursuant to Sections 120.569 and 120.57, Florida Statutes.
On October 15, 1998, the undersigned issued an Order to Show Cause to the Commission, requiring that agency to show cause why the matter should not be dismissed based upon the allegation in the Motion to Dismiss that the Order of Probable Cause was issued outside of the two-year limitation set forth in Section 106.28, Florida Statutes. On October 26, 1998, the Commission filed a Memorandum of Law in support of its position, to which Representative Morroni filed a responsive Memorandum of Law on November 2, 1998. By Order dated November 12, 1998, the
undersigned denied the Motion to Dismiss. The case was set for hearing on January 28, 1999.
At the final hearing, the Commission presented the testimony of Robert Symanski, a certified public accountant and campaign treasurer for John Morroni’s 1996 campaign; Patricia C. Rowan; Thomas Carey; Samuel "Sandy" Golden, the complainant; Travis Wade, an investigator for the Commission; Representative John Morroni, the Respondent; and, by late-filed deposition, Marilyn Curtis. The Commission offered 34 exhibits which were admitted into evidence without objection. Representative Morroni testified on his own behalf and offered no additional exhibits.
A Transcript of the hearing was filed on February 18, 1999. Leave was granted for the Commission to obtain the testimony of Marilyn Curtis by deposition. That deposition was conducted on
Order on March 10, 1999. Representative Morroni filed a Proposed Recommended Order on March 11, 1999.
Based on the oral and documentary evidence adduced at the final hearing, and the entire record in this proceeding, the following findings of fact are made:
Respondent John Morroni is a member of the Florida House of Representatives, representing District 50. He was first elected in 1992, and has been reelected subsequently. In 1995,
Representative Morroni was serving his second term and beginning his reelection campaign for 1996.
Representative Morroni appointed Robert P. Symanski, a certified public accountant, as his campaign treasurer. Representative Morroni designated himself as deputy treasurer for the campaign.
Prior to the commencement of each campaign, Representative Morroni signed a "Statement of Candidate" form, attesting that "I have received, read, and understand the requirements of Chapter 106, Florida Statutes."
Thomas Carey is a trial lawyer from Clearwater. Representative Morroni had known Mr. Carey before 1992. After Representative Morroni was elected, Mr. Carey served as the liaison between the Florida Academy of Trial Lawyers and Representative Morroni.
Mr. Carey is nationally known as a leader in efforts to prevent drunk driving, having served as a local and a national officer of Mothers Against Drunk Driving. Mr. Carey had worked with Representative Morroni in connection with drunk-driving issues.
Representative Morroni was reelected without opposition in 1994. After that election, Mr. Carey approached Representative Morroni and offered to throw a kick-off party for his next campaign, telling Representative Morroni to let him know when the time was right to plan such a function.
At some point in the summer of 1995, Representative Morroni called Mr. Carey and told him the time was right to plan the kick-off party for the 1996 campaign. Mr. Carey told Representative Morroni that his home could not be used for the party, but that his sister’s house would be ideal for the party. Mr. Carey and Representative Morroni decided that the party would be held on the last week of August.
Mr. Carey obtained the consent of his sister, Patricia Rowan, and her husband, Dr. Patrick Rowan, to use their home on Clearwater Beach for the party. The Rowans also agreed to contribute $500 each as an in-kind contribution to defray the costs of the party.
In July 1995, Mr. Carey was in the midst of a large jury trial, and did not have the time to oversee the details of the party. At this time, Mr. Sandy Golden was working as a volunteer for Mr. Carey on drunk driving issues, and was beginning to take on some paid personal duties for Mr. Carey. Mr. Carey delegated the planning of the party to Mr. Golden and his friend, Marilyn Curtis.
Mr. Golden testified that he had nothing to do with the planning of the party, beyond getting his friend Ms. Curtis involved. Mr. Golden testified that he found Ms. Curtis and that Mr. Carey hired her to coordinate the party. Mr. Carey testified that he had no recollection of "hiring" Ms. Curtis. He testified that he believed Ms. Curtis was volunteering her services, and that it was only after the fact that he agreed to pay her, at the
urging of Mr. Golden. Ms. Curtis testified that she had no discussions with Mr. Carey concerning payment for her services. She testified that Mr. Golden assured her that she would be paid.
Mr. Carey testified that at the outset he established a budget of $1,500 for the party, and that he based this number on the fact that he and each of the Rowans could lawfully provide
$500 as in-kind contributions to the Morroni campaign. Neither Mr. Golden nor Ms. Curtis remembered a firm dollar amount being established before the party.
Ms. Curtis telephoned Representative Morroni to obtain a list of invitees and other information for the party. Representative Morroni testified that he knew Ms. Curtis had planned major events for corporate clients, including the president of Outback Steakhouse, and he was concerned that his campaign kickoff party not be too ostentatious. Representative Morroni cautioned Ms. Curtis that this was
not a fundraiser, but a party for his campaign co-chairs and friends, and that a "fancy" party was not required or wanted.
Ms. Curtis designed and mailed the invitations. She was reimbursed for the printing and mailing of the invitations by personal check from Mr. Carey, in the amount of $106.44, dated August 16, 1995.
The party was held at the Rowans’ house on August 26, 1995. Mr. Carey testified that he arrived early and was presented with invoices from the various vendors who provided goods and services for the party. It is undisputed that Mr.
Carey paid the following amounts by personal checks dated
August 26, 1995: $52.50 for valet parking services; $296.80 for bartending services; and $900 for catering services and dinner buffet; $100 for photography services. By check dated
September 13, 1995, Mr. Carey paid an invoice of $79.18 for floral arrangements.
At Mr. Golden’s urging, Mr. Carey wrote a check for
$300 to Ms. Curtis to compensate her for 15 hours' work on the party, at a rate of $20 per hour. This check was written on August 27, 1995, the day after the party.
Thus, Mr. Carey wrote checks totaling $1834.92 to cover expenses for the party, including the $300 payment to Ms. Curtis and the late payment of $79.18 to the florist.
There was some dispute at the hearing as to how Mr. Carey came to write these checks and whether he was reimbursed for his outlay of all the expenses for the party.
Representative Morroni testified that it was obvious the party cost more than the $500 an individual is allowed by law to contribute, and that he remembered a passing conversation in which he complimented Mr. Carey on the party and expressed the hope that someone was sharing the expenses with him.
Representative Morroni testified that a more detailed discussion as to the division of expenses would have been improper, given that this was a party and there were 28 other campaign people present. He also considered Mr. Carey to be
knowledgeable and experienced in political matters, and thus not in need of a lecture about contribution limits.
Mr. Golden testified that he was present during the brief conversation between Mr. Carey and Representative Morroni. Mr. Golden’s recollection was similar to that of Representative Morroni. Mr. Golden recalled Representative Morroni complimenting Mr. Carey on the party, then reminding Mr. Carey of the $500 limitation and telling Mr. Carey to be sure he "split out" the costs of the party.
Mr. Carey testified that a more detailed conversation took place. As noted above, Mr. Carey testified that he had established a $1,500 budget for the party, based on $500 contributions from him and from each of the Rowans. As the invoices rolled-in during the party, Mr. Carey became concerned that the $1,500 budget was going to be exceeded, and concerned as to the logistics of paying the invoices.
Mr. Carey testified that he discussed these matters with Representative Morroni in the presence of Mr. Golden and Mrs. Rowan. One option discussed was for Mr. Carey and the Rowans to write $500 checks to the Morroni campaign, which would in turn pay the invoices. Another option was to divide each invoice three ways and write three separate checks to cover each one.
Mr. Carey testified that Representative Morroni suggested that, because Mr. Carey had already paid some of the invoices, he keep writing his personal checks to cover them, then
have the Rowans reimburse him. Mr. Carey thought this the most workable option, and so continued paying the invoices by personal check.
Mr. Carey testified that the group still had to deal with the contingency of the expenses exceeding the $1,500 budget. Mr. Carey testified that, at Representative Morroni’s suggestion, Mr. Golden agreed that any amount over $1,500 would be attributed to him, and that Mr. Golden would reimburse Mr. Carey by working for him without pay on drunk-driving issues.
Mr. Golden flatly denied ever agreeing to such an arrangement or agreeing to make a contribution of any kind to the Morroni campaign.
As noted above, Representative Morroni testified that he had no recollection of this detailed conversation taking place, let alone suggesting the payment/reimbursement plan outlined by Mr. Carey. Representative Morroni’s testimony, as corroborated by Mr. Golden's, is credited on this point.
Representative Morroni testified that he had a difficult time getting hold of Mr. Carey to obtain the contribution details for inclusion in his campaign finance report. As the reporting deadline approached, Representative Morroni made several telephone calls to Mr. Carey. At length, he reached Mr. Carey, who gave him the needed information over the telephone. Representative Morroni relayed the information to
Mr. Symanski, his campaign treasurer, who in turn included the
information in the campaign treasurer’s report for the period July 1, 1995 through September 30, 1995, filed October 10, 1995.
Mr. Carey testified that he had no clear recollection of providing the numbers to Representative Morroni, and that he believed Mr. Golden had provided the information to the Morroni campaign. Mr. Carey testified that if he did call Representative Morroni with the information, he simply would have been relaying information provided to him by Mr. Golden. Representative Morroni’s testimony is credited, and it is found that Mr. Carey provided the numbers to Representative Morroni.
It was undisputed that the figures included in the referenced treasurer’s report accurately reflected Mr. Carey’s oral report to Representative Morroni. The relevant figures related to the kick-off party were as follows, all listed as "in-kind contributions" and dated August 26, 1995:
Name Amount Description
Dr. Patrick Rowan $500 Kick-off Party Expenses Mrs. Patrick Rowan $500 Kick-off Party Expenses Mr. Tom Carey $500 Kick-off Party Expenses Ms. Marilyn S. Curtis $79.26 Kick-off Party Expenses Mr. Sandy Golden $300 Kick-off Party Expenses
Thus, the total reported expenses for the party were $1,879.26, as compared to $1,834.92 in actual paid invoices.
Representative Morroni testified that he took these figures from Mr. Carey at face value, seeing no reason to question their accuracy or completeness. He knew that all the
individuals listed as contributors were present at the party and were involved in its organization. Representative Morroni testified that he took down the figures and reported them directly to Mr. Symanski.
Mr. Symanski testified that he had no previous experience serving as a campaign treasurer, and felt that it was not his position to "challenge" someone who claimed to have made an in-kind contribution. His practice was to refer any questions regarding in-kind contributions to Representative Morroni.
Mr. Symanski testified that $1,800 "seemed like a lot more than what we would have spent, but if that’s what they said they spent, that’s what I recorded." He testified that the $500 allocations for the party did not raise concerns in his mind, because he knew beforehand that the costs of the party would have to be split up in some fashion.
Both Representative Morroni and Mr. Symanski testified that, as a general matter, they reported in-kind contributions based upon the word of the contributor. They did not ask for receipts or other verification of the amount claimed by the contributor, provided those amounts seemed reasonable. Neither man was aware of any legal requirement that a candidate or campaign obtain documentation of the value of in-kind contributions.
Other factual issues were raised by the parties that are ultimately tangential to the resolution of this case but nonetheless require resolution to complete the record. First,
the Commission questions the veracity of Mrs. Rowan’s testimony regarding the $500 contributions made by her and her husband, because Dr. and Mrs. Rowan initially executed affidavits, on forms sent by the Commission’s investigator, attesting that they made no contributions to the Morroni campaign.
Mrs. Rowan’s explanation of this seeming contradiction is credited. She testified that her husband has been extremely ill, having been diagnosed with a brain tumor in January 1998. In fact, as of the date of the hearing, Dr. Rowan had already outlived his initial prognosis of one year.
The Rowans learned of Dr. Rowan’s condition at roughly the same time they executed the original affidavits. Mrs. Rowan testified that under the circumstances neither she nor Dr. Rowan paid much attention to the affidavits.
Mrs. Rowan testified that someone later mentioned to her a newspaper article listing her as a contributor to the Morroni campaign. The article jogged her memory regarding the party and caused her to execute a corrected affidavit reflecting her $500 in-kind contribution. She had no explanation as to why the corrected affidavit was not provided to the Commission until the date of the hearing.
On the date of the kick-off party, Mrs. Rowan wrote a check to her brother, Mr. Carey, in the amount of $4,200. She testified that $1,000 of this amount was the contribution of her and her husband to the party expenses, and the remainder was
payment for legal services performed by Mr. Carey. Her testimony is credited on this point.
Respondent presented testimony regarding a subsequent falling-out between Mr. Carey and Mr. Golden over tactics in the crusade against drunk driving, as well as testimony regarding Mr. Golden’s feeling that Representative Morroni had "sold out" on the drunk-driving issue. Respondent’s purpose was to provide an ulterior motive for Mr. Golden’s filing the confidential complaint in this matter some two years after the events occurred, and to at least imply that Mr. Golden is mentally unstable and unreliable as a witness.
It is found that the facts concerning the Carey/Golden feud, all of which occurred after the events here at issue, are irrelevant to this proceeding, except as they provide some indicia that both Mr. Carey and Mr. Golden have reasons, rational or otherwise, to make each other look as bad as possible.
Mr. Golden’s motive in filing the confidential complaint is irrelevant.
As to Mr. Golden’s reliability as a witness, the only relevant point on which his testimony is contradicted concerns whether he agreed to have the party expenses exceeding the purported $1,500 budget attributed to him, to be "worked off" at a later time. For the reasons set forth in the Conclusions of Law below, it makes no difference to the resolution of this case whether Mr. Golden or Mr. Carey is credited as to whether this arrangement was made. The relevant point is whether
Representative Morroni was aware of any such arrangement, such that he could be found to have willfully signed a false or incorrect report. Representative Morroni’s testimony that he was not aware of such an arrangement is credited.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this cause, pursuant to Section 120.57(1), Florida Statutes.
The burden of proof in this administrative proceeding is on the Commission, as the party asserting the affirmative of the issue. Department of Banking and Finance, Division of Securities and Investor Protection v. Osborne Stern & Company, 670 So. 2d 932, 934 (Fla. 1996); Department of Transportation v. J.W.C. Company, Inc., 396 So. 2d 778 (Fla. 1st DCA 1981).
The Commission charges Respondent with violating Section 106.07(5), Florida Statutes (1995), which states in relevant part:
The candidate and his or her campaign treasurer . . . shall certify as to the correctness of each report; and each person so certifying shall bear the responsibility for the accuracy and veracity of each report. Any campaign treasurer, candidate, or political committee chair who willfully certifies the correctness of any report while knowing that such report is incorrect, false, or incomplete commits a misdemeanor of the first degree, punishable as provided in s.
775.082 or s. 775.083.
The Commission also alleges that Respondent violated Section 106.19(1)(c), Florida Statutes (1995), which states in relevant part:
Any candidate . . . or other person who knowingly and willfully:
* * *
(c) Falsely reports or deliberately fails to include any information required by this chapter . . . is guilty of a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083.
The Commission cannot convict a candidate of a criminal infraction. However, pursuant to Section 106.265(1), Florida Statutes (1995), the Commission is empowered to impose civil penalties upon those it finds to have violated the provisions of Chapter 106, Florida Statutes, in the form of fines not to exceed
$1,000 per count.
For purposes of the Commission’s jurisdiction, a violation means the willful performance of an act prohibited by Chapter 106, Florida Statutes, or the willful failure to perform an act required by that chapter. Section 106.25(3), Florida Statutes (1995).
For the Commission to levy a fine against an alleged violator, proof greater than a mere preponderance of the evidence must be submitted. Clear and convincing evidence is required. Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987); Osborne Stern, 670 So. 2d at 935; Latham v. Florida Commission on Ethics, 694 So. 2d 83 (Fla. 1st DCA 1997).
The "clear and convincing" standard requires:
that the evidence must be found to be credible; the facts to which the witnesses testify must be distinctly remembered; the testimony must be precise and explicit and the witnesses must be lacking in confusion as
to the facts in issue. The evidence must be of such weight that it produces in the mind of the trier of fact a firm belief or conviction, without hesitancy, as to the truth of the allegations sought to be established.
In re Davey, 645 So. 2d 398, 404 (Fla. 1994), quoting Slomowitz
v. Walker, 429 So. 2d 797, 800 (Fla. 4th DCA 1983). The findings in this case were made based on the Ferris standard.
Any fine imposed by the Commission must be based upon those violations specifically alleged in the Order of Probable Cause. Cottrill v. Department of Insurance, 685 So. 2d 1371 (Fla. 1st DCA 1996); Kinney v. Department of State, 501 So. 2d 129, 133 (Fla. 5th DCA 1987); Hunter v. Department of Professional Regulation, 458 So. 2d 842, 844 (Fla. 2d DCA 1984).
Because Chapter 106, Florida Statutes, is a penal statute to the extent it authorizes the Commission to impose fines for violations, it must be strictly construed with any doubt resolved in favor of the alleged violator. See, e.g., Whitaker v. Department of Insurance, 680 So. 2d 528, 531 (Fla. 1st DCA 1996); Department of Highway Safety and Motor Vehicles v. Meck, 468 So. 2d 993, 994-95 (Fla. 5th DCA 1984).
In the Order of Probable Cause, the Commission alleges that Representative Morroni submitted a false campaign treasurer’s report, in that the contributions listed for Dr. and Mrs. Rowan, Marilyn Curtis, and Sandy Golden were in fact all made by Tom Carey.
The facts do not establish that the in-kind contributions listed for the Rowans were actually made by Tom
Carey. The Commission correctly argues that it would have been better form had Mr. Carey taken one of the other options allegedly discussed at the party, i.e., making $500 cash contributions to the Morroni campaign and letting the campaign itself pay the various vendor invoices for the party.
However, the Commission points to no provision of Chapter 106, Florida Statutes, that prohibits the course actually taken: Mr. Carey paid the invoices; each of the Rowans reimbursed Mr. Carey to the maximum extent permitted, at the same time the invoices were being paid; and Representative Morroni properly reported the contributions of the Rowans and Mr. Carey as in-kind contributions.
The Rowans could have written checks directly to the vendors totaling $1,000. That they instead used Mr. Carey as a conduit for paying the vendors made no practical difference, so long as Representative Morroni’s treasurer’s report accurately reflected the Rowans as the true source of the funds.
The undersigned rejects the Commission’s argument that the pooling of funds, so that a single source could pay the vendors, established the Rowans and Mr. Carey as a "political committee" under Section 106.011(1), Florida Statutes. The undersigned agrees with the Commission that there were better ways to handle the matter, that might have created a clearer paper trail from the vendors to the Rowans, but also recognizes that the participants were improvising a response to exigent circumstances, not scheming to circumvent the campaign finance
law. There was no effort to disguise the actual source of the funds used to pay the vendors.
The $300 contribution listed for Mr. Golden, which equals the amount Mr. Carey paid Ms. Curtis for her services, is more problematic. Mr. Golden strenuously denied ever agreeing to a scheme whereby the contribution would be attributed to him, and he would subsequently "work it off" by volunteering his services to Mr. Carey.
Mr. Golden’s acquiescence, or lack thereof, is irrelevant. Even assuming such an agreement, the scheme would nonetheless constitute a transparent effort to circumvent the
$500 limit on individual contributions set forth in Section 106.08(1), Florida Statutes. Mr. Carey made the in-kind contribution by paying for the services Ms. Curtis rendered to the Morroni campaign. Mr. Golden’s agreement to perform services for Mr. Carey without pay could not under any circumstance be viewed as a contribution to the Morroni campaign. The Morroni campaign derived no value whatever from any work Mr. Golden may have done for Mr. Carey, and so Mr. Golden could not be the source of the $300 in-kind contribution attributed to him in the treasurer’s report.
The $79.26 in-kind contribution attributed to
Ms. Curtis, which differs from the late-paid florist’s invoice by only eight cents, is similarly problematic. Ms. Curtis, too, denied any intention of making a contribution to the Morroni campaign. Here, it appears that Mr. Carey paid the invoice, then
simply took it upon himself to attribute a like amount to Ms. Curtis so that his own contributions would not appear to exceed the $500 limit.
Thus, it is concluded that there were two items on Representative Morroni’s treasurer’s report that were not accurate: the $300 in-kind contribution attributed to
Mr. Golden, and the $79.26 in-kind contribution attributed to Ms. Curtis, were both in fact contributions by Mr. Carey.
Representative Morroni signed the incorrect report. The only remaining issue is whether Representative Morroni acted "willfully" in signing an incorrect report.
The parties agree that, for purposes of this case, the applicable standard for "willfulness" is that set forth in Division of Elections v. Tanner, Final Order No. DOSFEC 95-130 (August 29, 1995). In Tanner, the Commission concluded that the proper standard for its cases is the "reckless disregard" standard used by the United States Supreme Court to define "willfulness" in civil cases. See, e.g., United States v. Illinois Central Railroad, 303 U.S. 239 (1938); Trans World Airlines v. Thurston, 469 U.S. 111 (1985); Hazen Paper Company v. Biggins, 507 U.S. 604 (1993). In short, a violation is "willful" if the candidate knew his conduct was unlawful, or if he showed reckless disregard for whether his conduct was unlawful.
Tanner acknowledges that such a standard is useless "unless fleshed out by actual application to individual cases." The Commission listed a series of factors to consider in
determining whether a finding of "reckless disregard," and thus "willfulness," is appropriate. These factors are:
The political experience of the respondent;
A previous history of violations of the same or similar provisions of Chapter 106, which may impute knowledge to the respondent;
Previous compliance with a provision of Chapter 106 could also show "willfulness" by imputing knowledge in the same way as a history of previous violations;
A respondent’s having been placed on specific notice of a particular provision of Chapter 106 may justify a finding of willfulness;
A respondent’s failure to establish a procedure in his campaign to ensure the law was complied with may provide evidence of indifference to the law, and thus willfulness; and
"Willful blindness," where the respondent maintains purposeful ignorance of the law to insure he does not act "knowingly" or "willfully," is considered prima facie evidence of willfulness.
Also in Tanner, the Commission set forth some defenses to the charge of "willfulness." Because a provision of
Chapter 106 requires an action, and Respondent read the provision, does not necessarily mean that a failure to take that action constitutes a willful violation. The complexity of the law and Respondent’s actual knowledge of its interpretation should be considered in deciding whether legitimate confusion or misreading of the law eliminates "willfulness." A Respondent’s good faith effort to comply with a statute and honest belief that he had complied might obviate a finding of "willfulness," as
would reasonable reliance on advice from a person qualified to give such advice. Finally, the failure to comply with the law must be determined to be the result of more than simple negligence.
Representative Morroni was an experienced candidate, and was generally familiar with the requirements of Chapter 106, Florida Statutes, including the provisions requiring the candidate to certify the correctness of his reports. Representative Morroni has no previous history of violations. Nothing in the record establishes that Representative Morroni was placed on "specific notice" of the provisions of Sections 106.07(5) and 106.19(1)(c), Florida Statutes (1995), but nothing establishes that there should have been a need to provide specific notice of the prohibitions on filing false reports.
The Commission urges that the key factor establishing Representative Morroni’s willfulness is that he failed to establish a procedure in his campaign to ensure that the law was complied with. The Commission points to Section 106.055, Florida Statutes, which provides:
Any person who makes an in-kind contribution shall, at the time of making such contribution, place a value on such contribution, which valuation shall be the fair market value of such contribution.
The Commission argues that by failing to require contributors to provide documentation for their in-kind contributions, Representative Morroni "passively permitted" those contributors to violate the spirit and intent of Section 106.055,
Florida Statutes. The Commission concedes it is "technically correct" that Representative Morroni was not required to obtain documentation, but argues that Representative Morroni’s failure to do so evidences his "indifference" to the law. The Commission further urges that Representative Morroni be held liable for the failure of the contributors to provide the figures for the contributions until very close to the October 10, 1995, filing date, though the contributors should have placed the value on those contributions when they were made on or about August 26, 1995.
The Commission’s argument is rejected. The plain language of Section 106.055, Florida Statutes, places the responsibility for valuation of in-kind contributions on the contributor, not the candidate. The statute does not require the contributor to provide documentation to support the value placed on the in-kind contribution, nor does it impose a duty on the candidate to secure verification of the value claimed by the contributor. No statute deputizes the candidate to affirmatively prevent other persons from breaking the law, or makes it a violation for a candidate to "passively permit" someone else to break the law or violate its spirit. Representative Morroni cannot be penalized for his "indifference" to a nonexistent legal requirement.
The Commission correctly intuits that it was a contributor who broke the law, but seeks to hold the candidate liable for that violation. Both Representative Morroni and his
campaign treasurer, Mr. Symanski, testified that they essentially applied a rule of reason to in-kind contributions: if the value claimed by a contributor did not strike them as out-of-line with the services they actually saw the campaign receiving, they accepted and reported the claimed value. This was a reasonable practice, and must be counted as a good faith effort to comply with the requirements of Chapter 106, Florida Statutes.
Representative Morroni was unaware that Mr. Carey was the actual source of the contributions claimed for Mr. Golden and Ms. Curtis. Representative Morroni was unaware of any purported "work it off" arrangement between Mr. Carey and Mr. Golden. Representative Morroni had no reason to suspect that Mr. Carey was providing him with incorrect information.
In conclusion, while Representative Morroni submitted a treasurer’s report that contained two inaccuracies, the Commission failed to demonstrate that Representative Morroni’s actions were willful or performed with reckless disregard of the requirements of Chapter 106, Florida Statutes.
Upon the foregoing findings of fact and conclusions of law, it is recommended that the Florida Elections Commission enter a final order dismissing the charges against the Respondent, Representative John Morroni.
DONE AND ENTERED this 28th day of April, 1999, in Tallahassee, Leon County, Florida.
LAWRENCE P. STEVENSON
Filed with the Clerk of the Division of Administrative Hearings this 28th day of April, 1999.
Michael T. McGuckin Assistant General Counsel Florida Elections Commission The Capitol, Room 2002
All parties have the right to submit written exceptions within 15 days from the date of this recommended order. Any exceptions to this recommended order should be filed with the agency that will issue the final order in this case.
