STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF STATE, )

DIVISION OF ELECTIONS, )

)

Petitioner, )

)

vs. ) CASE NO. 94-6612

)

LYDIA MILLER, )

)

Respondent. )

)

RECOMMENDED ORDER

On February 21-22, 1995, a formal administrative hearing was held in this case in Tampa, Florida, before J. Lawrence Johnston, Hearing Officer, Division of Administrative Hearings.

APPEARANCES

For Petitioner: David R. Westcott, Esquire

Assistant General Counsel Department of State,

Division of Elections The Capitol, Room 2002

Tallahassee, Florida 32399-0250

For Respondent: Ralph C. Stoddard, Esquire

Hampton, Stoddard, Griffin & Runnells 915 Oakfield Drive, Suite F

Brandon, Florida 33511 STATEMENT OF THE ISSUES

The parties filed a Joint Prehearing Stipulation that framed the issues to be determined as follows:

1. Whether the Respondent violated Section 106.05, Florida Statutes, when as treasurer of her 1992 campaign for Hillsborough County Commissioner, she failed to deposit in a campaign depository all funds received by her within five business days of receipt.

   
   

2. Whether the Respondent violated Section 106.07(5), Florida Statutes, when as a candidate for the Hillsborough County Commission in 1992 she certified to the correctness of a campaign treasurer's report while knowing that such report was incorrect, false, or incomplete.

   
   

3. Whether the Respondent violated Section 106.141, Florida Statutes, when as a candidate for the Hillsborough County Commission in 1992 she failed to properly dispose of surplus campaign funds within 90 days after she was eliminated.

4. Whether the Respondent violated Section 106.19(1)(b), Florida Statutes, when during her 1992 campaign for Hillsborough County Commissioner, she failed to report a contribution required to be reported by Chapter 106, Florida Statutes.

   
   

5. Whether the Respondent violated Section 106.19(1)(c), Florida Statutes, when during her 1992 campaign for Hillsborough County Commissioner, she falsely reported or deliberately failed to include information required by Chapter 106, Florida Statutes.

PRELIMINARY STATEMENT

On or about May 8, 1994, during the Respondent's campaign for reelection to the Hillsborough County Commission, the St. Petersburg Times reported allegations that the Respondent had violated election laws during her 1992 campaign for election to the Hillsborough County Commission. The allegations were: (1) that the Respondent had cashed in thousands of dollars in postage stamps contributed to, but not reported as contributions to, her campaign and converted the cash proceeds to her personal use; (2) that her campaign reported a $100 cash contribution from an individual who did not make the contribution; and (3) that two other individuals made cash contributions that were not reported.

The next day, the Respondent asked the State Attorney to investigate the allegations to clear her name. In order to comply with the Respondent's request, the State Attorney filed a complaint with the Florida Elections Commission.

The complaint was investigated by the Department of State, Division of Elections. The investigation cleared the Respondent of the "stamps-for-cash" allegation but concluded that there was evidence to substantiate the other two original allegations, plus several additional charges. On October 7, 1994, the Investigative Report was considered by the Florida Elections Commission, which entered its Order of Probable Cause on October 17, 1994.

On or about October 31, 1994, the Respondent requested formal administrative proceedings under Section 120.57(1), Fla. Stat. (1993). On November 23, 1994, the matter was referred to the Division of Administrative Hearings (DOAH) for assignment to a hearing officer.

In accordance with the parties' Joint Response to Initial Order, final hearing was scheduled for February 21-22, 1995, in Tampa, Florida. The parties filed a Joint Prehearing Stipulation on February 10, 1995.

At final hearing, the Petitioner called four witnesses and had Petitioner's Exhibits 1 through 54 admitted in evidence. (Petitioner's Composite Exhibits A through V simply organize duplicates of Exhibits 1 through 54 to correspond with the presentation of testimony at final hearing.) The Respondent testified in her own behalf, called seven additional witnesses, and had Respondent's Exhibits

2 and 3 admitted in evidence. The Petitioner called one additional witness in rebuttal.

At the conclusion of the hearing, the Petitioner ordered the preparation of a transcript of the final hearing, and the parties were given ten days from the filing of the transcript in which to file proposed recommended orders. The transcript was filed on March 6, 1995.

Explicit rulings on the proposed findings of fact contained in the parties' proposed recommended orders may be found in the Appendix to Recommended Order, Case No. 94-6612.

FINDINGS OF FACT

1. The Respondent, Lydia Miller, ran for election to the Hillsborough County Commission, District 4, in 1992. It was her first campaign for election to public office. She declared her candidacy in September, 1991, and appointed her husband as her campaign treasurer and herself as deputy campaign treasurer. She ran as a Republican and had several Republican opponents in the primary. She did not have the backing of the Republican Party and had difficulty attracting financial support, especially at first. Of necessity, she ran a "grass roots" campaign and spent countless hours going door-to-door in her district asking for support and, when possible, making public appearances. She

   also tried to capitalize on the "grass roots" nature of her campaign. Trying to emulate a campaign technique that worked for Governor Lawton Chiles, she pledged that she would not accept financial contributions in excess of $100 (versus the

   $500 statutory maximum) and would not accept financial contributions (or endorsements) from "special interests." To substantiate the strength of her "grass roots" campaign, the Respondent saw value in her campaign treasurer's reports showing as large a number of relatively small contributions from individuals. In all, the Respondent raised less than $14,000. Yet, she was able to survive the first primary, win the second primary, and beat her Democrat opponent in the general election.

   
   

   Cash Not Deposited or Reported

   
   

2. The Respondent admitted that she accepted a $20 cash contribution from Irene Herring and put it in her campaign's petty cash without reporting it in her campaign treasurer's reports.

   
   

3. Herring made two other cash contributions to the Respondent's campaign-

   -one in the amount of $20 and another in the amount of $30. Neither contribution was reported. Both contributions were given to Susie Farmer, a campaign worker.

   
   

4. Similarly, David Gill contributed between $50 and $100 cash to the Respondent's campaign, but the contribution was not reported. This contribution also was given to Susie Farmer.

   
   

5. The Respondent denied specific knowledge of the two other cash contributions from Herring and the cash contribution from Gill. The only evidence which could support a finding that the Respondent knew of them was testimony of Larry Sweat, an aide the Respondent hired after her election but fired three months later. From an evaluation of the testimony of the Respondent and Sweat, taking into account all of the relevant evidence as well as their demeanor and overall credibility, and it is found that Sweat's testimony was not sufficient to overcome the Respondenet's denials by a preponderance of the evidence.

   
   

6. By her own admission, however, it would not have been unusual for the Respondent to use small cash contributions (or allow and approve their use) to replenish her campaign's petty cash without reporting them in her campaign

   treasurer's reports. It certainly is possible that the other two cash contributions from Herring and the cash contribution from Gill were handled in that manner.

   
   

7. The Respondent was aware that all contributions had to be deposited in her campaign account and reported in her campaign treasurer's report. Yet, for reasons not fully explained in her testimony, the Respondent also thought that it was permissible to use small cash contributions to replenish her campaign's petty cash. It is possible that the Respondent misread or misunderstood the election campaign financing laws dealing with petty cash and the reporting of expenditures from petty cash. See Conclusions of Law 79 through 81, below. The Respondent certainly was not handling the small cash contributions that way to "beef up" her campaign treasurer's reports.

   
   

   Cash Deposited and Reported But Donor Allegedly Unknown

   
   

8. The Respondent's campaign treasurer's reports show the following cash contributions:

   
   

   $100 from Phillip Preston on August 17, 1992

   $ 90 from Robert Preston on August 17, 1992

   $100 from Kelley Preston on August 22, 1992

   
   

   Robert, Kelley, and Phillip are the minor children of Allen and Rosina Preston, aged 16, 4, and 2. It is possible but improbable that Robert donated $100 of his own cash to the Respondent's campaign; it is all but impossible that Kelley or Phillip did.

   
   

9. The Prestons were supporters of the Respondent and contributors to her campaign. The Respondent's Sun City Center campaign headquarters was in office space donated by Allen Preston. The offices of Preston's business also was in the same building. Allen Preston often visited the campaign headquarters and helped with the campaign, in addition to his financial contributions. Yet, Preston denied donating $290 cash in the names of his children. Preston does not think his wife would have done so without telling him, but his wife did not testify.

   
   

10. The Respondent denies any specific knowledge concerning the $290 in cash contributions attributed to the Preston children. But it would not have been unusual for Susie Farmer or other campaign workers to leave cash contributions with "Post-It" notes attached to identify the donors. The campaign treasurer's reports normally would be prepared using the information on the "Post-It" notes. Especially in the days leading up to the three elections, the campaign headquarters became hectic and confused, and it is possible that incorrect information inadvertently was placed on the "Post-It" notes for these cash contributions.

    
    

11. When the Respondent saw cash contributions from the Preston children in preparing or reviewing reports, she would not have questioned the accuracy of the information. She would have assumed that the Prestons had made the donations in the names of their children. She did not think there was anything wrong with adults making campaign contributions in the names of their minor children. She denies intentionally misreporting the contributions in order to hide contributions from Allen and Rosina Preston, or their businesses, or artificially to "beef up" the number of small contributions reflected in her campaign treasurer's reports. The evidence was not sufficient to overcome the Respondenet's denials by a preponderance of the evidence.

12. The Respondent's campaign treasurer's reports also show a $25 cash contribution from Evelyn Ackerman on October 14, 1992. The parties stipulated in their Joint Prehearing Stipulation that Ackerman is an elderly woman on a fixed income and that Ackerman denies making the contribution. But the Respondent has a specific recollection that Ackerman offered the contribution, that the Respondent tried to decline in view of Ackerman's meager financial means, and that Ackerman insisted. It is found that the Respondent's testimony outweighs the statements from Ackerman, who has been know to hallucinate and whose memory may not be trustworthy.

    
    

13. The Respondent's campaign treasurer's reports also showed a $100 cash contribution from Henry Farmer on October 18, 1992. Henry Farmer denies making the contribution and does not believe that his wife, Susie, would have donated

    $100 cash in his name without telling him. Susie did not testify, but she was an enthusiastic supporter, campaign worker and fund-raiser for the Respondent's campaign, and it certainly is possible that she donated the cash in her husband's name without his knowing it. Regardless of the actual source of the cash, the Respondent testified to her recollection of seeing a $100 cash contribution with a "Post-It" notes attached indicating that it was from Henry Farmer. She indicated that she had no reason to think it was not a contribution from Susie's husband, and it would not have been unreasonable for the Respondent to believe, without question, that the information on the "Post-It" note was accurate. The evidence was not sufficient to overcome the Respondent's testimony by a preponderance of the evidence. The evidence did not prove that the Respondent knew her campaign treasurer's report of the $100 cash contribution from Henry Farmer was not accurate.

    
    

14. The Respondent's campaign treasurer's reports also showed a $100 cash contribution from Marie Schrag on October 18, 1992. Neither she nor her husband made the contributions. The Respondent did not testify to any specific recollection about the Schrag contribution. But Schrag was Allen Preston's bookkeeper and worked in the same building of Preston's where the Respondent's Sun City Center campaign headquarters was. Although she was not an active campaign worker for the Respondent, she did type one letter for the campaign, and her husband stuffed envelopes for the campaign on at least one occasion. In addition, she had been friends with Susie Farmer, one of the Respondent's most successful fund-raiser, for over 20 years. If the Respondent saw a $100 cash contribution with a "Post-It" notes attached indicating that it was from Marie Schrag, she would have had no reason not to believe, without question, that the information on the "Post-It" note was accurate. The evidence did not prove that the Respondent knew her campaign treasurer's report of the $100 cash contribution from Marie Schrag was not accurate.

    
    

    Alleged Business Contributions

    
    

    Allegedly Falsely Reported From Individuals

    
    

15. The Respondent's campaign treasurer's reports listed a June 1, 1992, contribution in the amount of $25 from "Phil Boggs, Occupation (if over $100), Boggs Jewelry," when the check was written on the account of Boggs Jewelry, and signed by Phil R. Boggs.

    
    

16. The Respondent reasonably did not think there was anything wrong with the way the Boggs contribution was reported.

17. When the Respondent pledged not to take financial contributions or endorsements from "special interests," she did not intend to indicate that she would not accept financial support from any businesses or corporations. (In her mind, "special interests" meant political action committees, not any and all businesses and corporations.)

    
    

18. The Respondent does not know Phil Boggs, and Boggs Jewelry had no business before the County Commission during the Respondent's term. The Respondent reasonably did not perceive the Boggs contribution to have come from a "special interest," and it was not proven that the Respondent was trying to hide the true source of the Boggs contribution or make it look like it was coming from Boggs, individually, instead of the business, Boggs Jewelry.

    
    

19. The Respondent's campaign treasurer's reports listed a contribution on June 2, 1992, in the amount of $25 from "Charles Hostetter, Occupation (if over

    $100), Fisher Beauty Salon," when the check was written on the account of Fisher's Beauty Salon, and signed by Charles Hostetter.

    
    

20. The Respondent reasonably did not think there was anything wrong with the way the Hostetter contribution was reported.

    
    

21. The Respondent reasonably did not perceive the Hostetter contribution to have come from a "special interest," and it was not proven that the Respondent was trying to hide the true source of the Hostetter contribution or make it look like it was coming from Hostetter, individually, instead of the business, Fisher's Beauty Salon.

    
    

22. The Respondent's campaign treasurer's reports listed a contribution on June 22, 1992, in the amount of $25 from "Charles Bingham, Occupation (if over

    $100), c/o Floral Decor Florist," when the check was written on the account of Floral Decor Florist, and signed by Charles Bingham.

    
    

23. The Respondent reasonably did not think there was anything wrong with the way the Bingham contribution was reported. Bingham is a personal friend of the Respondent and personally gave the check to the Respondent.

    
    

24. The Respondent reasonably did not perceive the Bingham contribution to have come from a "special interest," and it was not proven that the Respondent was trying to hide the true source of the Bingham contribution or make it look like it was coming from Bingham, individually, instead of the business, Floral Decor Florist.

    
    

25. The Respondent's campaign treasurer's reports listed a contribution on June 24, 1992, in the amount of $100 from "John Williams Coppes Kitchen, Occupation (if over $100), Owner," when the check was written on the account of Williams Kitchens & Baths, Inc.

    
    

26. The Respondent reasonably did not think there was anything wrong with the way the John Williams contribution was reported. The Respondent knows Williams's business as "John Williams Coppes Kitchens," the name on the business's signage. (Coppes is the name of the brand Williams sells.)

    
    

27. The Respondent reasonably did not perceive the John Williams contribution to have come from a "special interest," and it was not proven that the Respondent was trying to hide the true source of the John Williams contribution or make it look like it was coming from Williams, individually,

    instead of the business, whether known as Williams Kitchens & Baths, Inc., or as John Williams Coppes Kitchens.

    
    

28. The Respondent's campaign treasurer's reports listed a contribution on August 16, 1992, in the amount of $100 from "Ann Williams, Guys & Dolls," when the check was written on the account of Guys 'N Dolls of Brandon, Inc., and signed by Ann Williams.

    
    

29. The Respondent reasonably did not think there was anything wrong with the way the Ann Williams contribution was reported. Ann Williams is the Respondent's regular hairdresser and personally gave the check to the Respondent at the beauty parlor.

    
    

30. The Respondent reasonably did not perceive the Ann Williams contribution to have come from a "special interest," and it was not proven that the Respondent was trying to hide the true source of the Ann Williams contribution or make it look like it was coming from Ann Williams, individually, instead of the business, Guys 'N Dolls of Brandon, Inc.

    
    

31. The Respondent's campaign treasurer's reports listed a contribution on September 12, 1992, in the amount of $50 from "Martha Simmons, Tropical Fish Farms," when the check was written on the account of Gerald Simmons Tropical Fish Farm, and signed by Martha Simmons.

    
    

32. The Respondent reasonably did not think there was anything wrong with the way the Simmons contribution was reported. The Simmonses were neighbors of the Farmers. The Respondent reasonably did not perceive the Simmons contribution to have come from a "special interest," and it was not proven that the Respondent was trying to hide the true source of the Simmons contribution or make it look like it was coming from Martha Simmons, individually, instead of the business, Gerald Simmons Tropical Fish Farm.

    
    

33. The Respondent's campaign treasurer's reports listed a contribution on September 23, 1992, in the amount of $50 from Tommy Brock, when the check was written on the account of Brock Farms, and signed by Tommy Brock.

    
    

34. The Respondent reasonably did not think there was anything wrong with the way the Tommy Brock contribution was reported. The Respondent reasonably did not perceive the Brock contribution to have come from a "special interest," and it was not proven that the Respondent was trying to hide the true source of the Brock contribution or make it look like it was coming from Tommy Brock, individually, instead of the business, Brock Farms.

    
    

35. The Respondent's campaign treasurer's reports listed a contribution on October 15, 1992, in the amount of $100 from William Stearns, when the check was written on the account of F.E. Stearns Peat Co., Inc., and signed by William Stearns.

    
    

36. If the Respondent had carefully compared check to the report, she probably should have known that the Stearns contribution was not reported properly. The check arrived in the mail, and there was no reason to think it was not from the F.E. Stearns Peat Co., Inc. Nonetheless, the Respondent reasonably did not perceive the Stearns contribution to have come from a "special interest," and it was not proven that the Respondent intentionally was trying to hide the true source of the Stearns contribution or make it look like

    it was coming from Williams Stearns, individually, instead of the business, F.E. Stearns Peat Co., Inc. It just as easily could have been a mistake or oversight.

    
    

37. The Respondent's campaign treasurer's reports listed a contribution on October 15, 1992, in the amount of $100 from "William Bishop, c/o L.L. Corporation," when the check was written on the account of Leslie Land Corporation, signed by William Bishop, with the "memo": "William L. Bishop."

    
    

38. If she had carefully compared check to the report, the Respondent probably should have known that the Leslie Land Corporation contribution was not reported properly. However, the "memo" on the check indicated "William L. Bishop," and the report gave Bishop's address as "c/o L. L. Corporation." It was not proven that the Respondent intentionally was trying to hide the true source of the Leslie Land Corporation contribution or make it look like it was coming from William Bishop, individually, instead of the business, Leslie Land Corporation. It is just as possible that the intention was to include all of the information on the check for full disclosure and that the initials "L. L." were used instead of the full name of the Leslie Land Corporation by mistake or oversight, or to compress all of the information into the limited space allotted on the report form.

    
    

39. The Respondent's campaign treasurer's reports listed a contribution on October 22, 1992, in the amount of $100 from the "Bill Kincaid Company," when the check was written on the account of the Kincaid Company, and signed by William F. Kincaid.

    
    

40. The Respondent reasonably did not think there was anything wrong with the way the Kincaid contribution was reported. All the report did was provide the additional information of Kincaid's first name, along with the company name. It was not proven that the Respondent was trying to hide the true source of the Kincaid contribution or make it look like it was coming from Kincaid, individually, instead of from the Kincaid Company. The Respondent also reasonably did not perceive the Kincaid contribution to have come from a "special interest."

    
    

41. The Respondent's campaign treasurer's reports listed a contribution on October 29, 1992, in the amount of $50 from Kenneth Wetherington, when the check was written on the account of the Morgan and Wetherington Chiropractic, and signed by Kenneth Wetherington.

    
    

42. The Respondent did not think there was anything wrong with the way the Wetherington contribution was reported. She thought that a chiropractor in partnership with other chiropractors acted in his own behalf when making a political contribution, even when writing a partnership check. Although the Respondent probably incorrectly reported this contribution, the Respondent reasonably did not perceive the Wetherington contribution to have come from a "special interest," and it was not proven that the Respondent intentionally was trying to hide the true source of the Wetherington contribution or make it look like it was not coming from the partnership of Morgan and Wetherington Chiropractic.

    
    

43. The Respondent's campaign treasurer's reports listed a contribution on October 28, 1992, in the amount of $100 from Paul Rozeman, when the check was written on the account of the McCaw Communications of Florida, Inc., and signed by someone other than Rozeman. (The signature was illegible, and it could not be identified through testimony.) However, the check was delivered by Rozeman,

    who worked in McCaw's local office, and who introduced himself to the Respondent. Although McCaw Communications is a large corporation, the Respondent was not familiar with it and was willing to assume that the contribution was from Rozeman's company and to decided err on the side of using his name. Obviously, her assumption was incorrect, and the report was in error. In any event, the Respondent probably should have known that the contribution was not reported properly. (See Finding of Fact 36, above.) But the evidence did not prove that the Respondent was lying, and that she actually perceived McCaw Communications to be a "special interest," and intentionally was trying to hide the true source of the contribution and make it look like it was coming from Rozeman, individually, instead of from McCaw Communications.

    
    

44. In all, the Respondent's campaign treasurer's reports that were admitted in evidence listed 216 separate contributions. ($3,052 in cash and check contributions and $1615.80 of in-kind contributions would have been listed in earlier reports that were not admitted in evidence.) Of the 216 separate contributions, 31 (aside from the ones discussed in paragraphs 15 through 43, above) unambiguously and properly listed the contributions as coming from corporations, businesses or organizations.

    
    

    Contributions Allegedly Over $100 And

    
    

    Falsely Reported As Several $100 Contributions

    
    

45. On or about October 5, 1992, the Respondent's campaign received a $500 check on the account of, and signed by Allen Preston, with explicit instructions to consider it and report it as being a $100 contribution from each of the five family members: Allen; his wife, Rosina; and their three children, Robert, Kelley, and Phillip.

    
    

46. On or about September 3, 1992, the Respondent's campaign received a

    $300 check on the account of Aquarius Water Refinery, Inc., and signed by Joe Gaskill, with explicit instructions to consider it and report it as being a $100 contribution from him, another $100 contribution from his wife, and another $100 contribution from his company, Aquarius Water Refinery, Inc.

    
    

47. On or about September 3, 1992, the Respondent's campaign received a

    $200 check on the account of Care Animal Hospital, Inc., and signed by Richard Kane, a veterinarian and the corporation's president, with explicit instructions to consider it and report it as being one $100 contribution from him and another

    $100 contribution from his corporation.

    
    

48. The Respondent did not specifically request that the Preston, Gaskill and Kane contributions be considered and reported as being several contributions of $100. Preston, Gaskill and Kane all were aware of the Respondent's campaign pledge to limit contributions to $100, and it was their desire and intention not to cause the Respondent to violate the pledge.

    
    

49. The Respondent did not think it was improper or illegal or inaccurate to reports the Preston, Gaskill and Kane contributions as requested. It appears that the Petitioner has issued an advisory opinion that contributions in excess of the statutory maximum by check drawn on a joint account only can be divided into smaller contributions from more than one account holder if all of the donors sign the check. (The Petitioner's investigator testified to the existence of such an advisory opinion, but none was admitted in evidence at the hearing. The Petitioner attached to its proposed recommended order a copy of what purports to be its advisory opinion on the subject, designated DE 93-10,

    but technically the advisory opinion still is not in evidence in this case.) But there is no evidence that the advisory opinion was furnished to the Respondent or that she was aware of it.

    
    

50. If the Respondent were aware of the advisory opinion, she should at least have been on notice to inquire whether it was permissible to report the contributions as she did. But it still would not have been clearly impermissible.

    
    

    Allegedly False Termination Report

    
    

    And Improper Disposition of Surplus Funds

    
    

51. The deadline for submission of the Respondent's termination campaign treasurer's report was 90 days after the general election, or Monday, February 1, 1993. As the deadline approached, the Respondent reasonably thought she needed two things in order to file the termination report: first, the January, 1993, bank statement on the campaign account; and, second, the resolution of a dispute she had with the phone company (GTE of Florida, Inc., or GTE) about charges on bills she received after having the campaign headquarters phone disconnected.

    
    

52. On the weekend before the termination report was due, the Respondent attempted to obtain the bank statement but was told that it just had been put in the mail and could not be regenerated by the bank's computer at that time. The bank personnel advised the Respondent to wait until the statement arrived in the mail.

    
    

53. Without the bank statement, the Respondent reasonably could not prepare the termination report before the deadline. She asked officials at the local elections supervisor's office for advice and was told to write a note explaining the reasons why she could not meet the deadline. She wrote a note dated February 1, 1993, stating that she "could not report on the closing of my campaign account until I received the final Banking Statement."

    
    

54. It is found that the note was truthful and that she did not have the January, 1993, bank statement at the time she wrote it. Testimony from Larry Sweat to the effect that the Respondent came into her office that day and gave him the bank statement to hide in a drawer is rejected as false or mistaken. The Respondent did not receive the bank statement in the mail until later that week.

    
    

55. It is possible, as testified by Sweat, that he and the Respondent had a discussion to the effect that it was to the Respondent's advantage that her termination report would not be available for public scrutiny on the deadline, along with the reports of other candidates (assuming they were filed on time). But it is as likely, or more likely, that Sweat thought of the fortuitous side- benefit of filing late. In any event, it is found that the Respondent did not intentionally file late in order to reap the perceived side-benefit that might have been discussed.

    
    

56. It is possible that, when the January, 1993, bank statement was received in the mail, the Respondent brought it into the office and gave it to Sweat to keep in his desk drawer until she was in a position to prepare the termination report. (The dispute with the telephone company still was not resolved.) But it is found that, contrary to Sweat's testimony, the Respondent did not give the bank statement to Sweat to "hide" in his desk drawer.

57. On February 18, 1993, the Respondent filed the termination report. It showed a January 6, 1993, check on the campaign account (check number 1070) in the amount of $88.45, made out to cash. The check memo stated, "petty cash reimbursement," but the report clarified that the cash actually was paid to the Respondent and two others for the purchase of party goods for the celebration of the Respondent's victory in the general election.

    
    

58. The February 18, 1993, termination report also showed that a February 16, 1993, check for $48.95 to GTE of Florida (check number 1072) "on account, balance due in dispute" was written on the campaign account on the day of the report. The report also showed a zero balance in the account.

    
    

59. Check number 1072 never was presented to the bank, and its whereabouts is not known. The Petitioner contends that check number 1072 and the disputed telephone bill were fabrications to cover the improper disbursement of $48.95 of surplus to the Respondent. But the check just as easily could have been lost or, for some reason, simply not presented to the bank for payment. Besides, as reflected in the following Findings of Fact, the evidence was clear both that there was in fact a dispute regarding the GTE bill and that the $48.95 was not disbursed to the Respondent in February, 1993.

    
    

60. The Petitioner presented the GTE telephone records for the Respondent's campaign office telephone account in an apparent attempt to prove that, as of November 10, 1992, there was only a $1.02 balance on the account and that GTE was not pursuing collection of the $1.02. But, while only a $1.02 balance appeared on the campaign telephone account as of November 10, 1992, approximately $154.68 was transferred at that time from the campaign telephone account to the Respondent's personal home telephone account. It was the transferred charges that the Respondent was disputing.

    
    

61. For reasons not apparent from the record, on or about December 10, 1992, GTE reduced the balance transferred to the Respondent's home phone bill to

    $131.37. Apparently, GTE further reduced the transferred balance to $84.09 on December 19, 1992; again, no explanation for the further reduction is apparent. The $84.09 charge remained on the GTE records at least until an entry on one of the records indicating that GTE wrote it off as uncollectible on or about February 12, 1993.

    
    

62. Although the records include the notation dated February 12, 1993, indicating that GTE was writing off the $84.09 charge as being uncollectible, the Petitioner did not call a witness from GTE to explain the GTE records, and the records presented at the hearing do not go beyond the February 12, 1993, entry. It is not clear from the records that GTE stopped soliciting payment of the charge at that time.

    
    

63. On May 12, 1993, the Respondent filed an amended termination report showing a March 30, 1993, disbursement to the Respondent in the amount of $36.95 for reimbursement for partial payment of the campaign's GTE bill. It also attached a copy of the March 31, 1993, bank statement on the campaign account showing a beginning balance as of March 1, 1993, in the amount of $36.95 and one withdrawal/debit in the same amount during the month, for a zero balance at the end of the month.

    
    

64. The Respondent testified that she paid the $84.09 charge in June, 1993. Unfortunately, the Respondent's testimony was not corroborated by any records. But the GTE records presented by the Petitioner did not go beyond

    February 12, 1993, and without testimony from a witness from GTE, they were insufficient to disprove the Respondent's contention that she paid the charge in June, 1993.

    
    

65. If the June, 1993, payment date is correct, the amended termination report filed on or about May 12, 1993, would indicate that the Respondent disbursed the $36.95 balance of the campaign account (representing the $48.95 she thought she had paid to GTE on or about February 16, 1993, less a $12 bank service charge for February, 1993) to herself on or about March 30, 1993, believing that there still was a disputed $84.09 charge to GTE, and that she held the money pending resolution of the disputed charge. When she paid the GTE charge, she considered the March 30, 1993, disbursement to herself to be reimbursement for her payment of the GTE charge.

    
    

66. The Respondent knew or should have known that it was improper to disburse surplus from the campaign account to herself, except to reimburse her own contributions to her campaign. But, according to the Respondent's testimony, she did not consider the $36.95 payment to herself to be "surplus" since she considered there to be an outstanding disputed liability to GTE.

    
    

    CONCLUSIONS OF LAW

    
    

    Burden and Standard of Proof

    
    

67. The burden of proof in an administrative proceeding is on the party asserting the affirmative of the issue. See Dept. of Transportation v. J.W.C. Company, Inc., 396 So.2d 778 (Fla. 1st DCA 1981). In this case, the Petitioner has the burden of proof.

    
    

68. The standard of proof is this case requires that the Petitioner prove the charges alleged by a preponderance of the evidence. Compare Dileo v. School Bd. of Dade County, 569 So. 2d 883 (Fla. 3d DCA 1990), Allen v. School Bd. of Dade County, 571 So. 2d 568 (Fla. 3d DCA 1990), South Florida Water Management Distr. v. Caluwe, 459 So. 2d 390, 394 (Fla. 4th DCA 1984), and Fitzpatrick v. City of Miami Beach, 328 So. 2d 528 (Fla. 3d DCA 1976), with Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987), Ganter v. Dept. of Ins., 620 So. 2d 202,

    205 (Fla. 1st DCA 1993), and Pic N' Save Central Florida, Inc., v. Dept. of Business Reg., etc., 601 So. 2d 245, 249 (Fla. 1st DCA 1992).

    
    

    Requirement of Willfulness

    
    

69. Section 106.25(3), Fla. Stat. (1993), states in pertinent part:

    
    

    (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.

    
    

70. 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.

    
    

71. 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".

    
    

72. 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 with approval 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: "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 alleged violations of other parts of the Florida Elections Code.

    
    

73. Under the Sanders holding, the Respondent must have been more than merely careless and negligent. In order for a violation to be established, she must have acted with some degree of conscious wrong or culpable carelessness.

    
    

    Alleged Failure to Report, and False Reporting of, Contributions

    
    

74. Section 106.05, Fla. Stat. (1993), provides in pertinent part:

    
    

    All funds received by the campaign treasurer of any candidate . . . shall, prior to the end of the 5th business day following the receipt

    thereof, Saturdays, Sundays, and legal holidays excluded, be deposited in a campaign depository designated pursuant to s. 106.021 . . ..

    
    

75. Section 106.19(1)(b), Fla. Stat. (1993), provides in pertinent part:

    
    

    Any candidate . . . or deputy treasurer of any candidate . . . who knowingly and willfully:

    * * *

    (b) Fails to report any contribution required to be reported by this chapter;. . .

    is guilty of a misdemeanor of the first degree, punishable as provided in s. 775.082 or s.

    775.083.

    
    

76. Section 106.07, Fla. Stat. (1993), provides in pertinent part:

    
    

    1. Each campaign treasurer designated by a candidate . . . pursuant to s. 106.021 shall file regular reports of all contributions received, and all expenditures made, by or

       on behalf of such candidate or political committee.

       * * *

       (2)(a) All reports required of a candidate by this section shall be filed with the officer before whom the candidate is required by law

       to qualify. . . . Reports shall contain infor- mation of all previously unreported contributions received and expenditures made as of the preceding Friday . . ..

       (4)(a) Each report required by this section shall contain:

       1. The full name, address, and occupation, if any, of each person who has made one or more contributions to or for such committee or candidate within the reporting period, together with the amount and date of such contributions. However, if the contribution is $100 or less or is from a relative, as defined in s. 112.312, provided that the relationship is reported, the occupation of the contributor need not be listed, and only the name and address are necessary.

          (5) The candidate and his 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 [or] candidate . . . 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.

          
          

77. Section 106.19(1)(c), Fla. Stat. (1993), provides in pertinent part:

    
    

    Any candidate . . . or deputy treasurer of any candidate . . . 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.

    
    

78. It is clear that the Respondent failed to deposit a $20 cash contribution from Irene Herring contribution. She also authorized Susie Farmer to use small cash contributions, like the other Herring cash contributions in the amounts of $20 and $30, to replenish her campaign's petty cash. Although

    the Respondent may not have specifically authorized Farmer to use the Gill cash contribution (which was between $50 and $100) to replenish her campaign's petty cash, it is concluded that she also must be held responsible for Farmer's misuse of the Gill cash because the Respondent allowed cash to be used in that manner and did not set clear limits on how small a cash contribution had to be in order to be used to replenish the campaign's petty cash.

    
    

79. As found, the Respondent thought that it was permissible to use small cash contributions to replenish her campaign's petty cash without depositing them or reporting them. Her testimony did not fully explain exactly why she thought it was permissible, but it is possible that the Respondent misread or misunderstood the election campaign financing laws dealing with petty cash and the reporting of expenditures from petty cash.

    
    

80. Section 106.12, Fla. Stat. (1993), provides in pertinent part:

    
    

    1. Each campaign treasurer designated pursuant to s. 106.021(1) for a candidate . . . is auth- orized to withdraw from the primary campaign account, until the close of the last day for qualifying for office, the amount of $500 per calendar quarter reporting period for the purpose of providing a petty cash fund for the candidate

       . . ..

    2. Following . . . the close of the last day for qualifying and until the election at which such candidate is . . . elected to office . . ., the campaign treasurer of each canditate is authorized to withdraw the following amount each week from the primary depository campaign account for the purposed of providing a petty cash fund for the candidate:

       * * *

       (b) For all other candidates [other than can- didates for nomination or election on a statewide basis] . . ., $100 per week.

    3. The petty cash fund so provided shall be spent only in amounts less than $30 and only for office supplies, transportation expenses, and other necessities. Petty cash shall not be used for the purchase of time, space, or services from communications media as defined in s. 106.011(13).

       
       

81. Section 106.07(4)(a), Fla. Stat. (1993), provides in pertinent part that reports are required to reflect:

    
    

    1. The full name and address of each person to whom expenditures have been made by or on behalf of the . . . candidate within the reporting period; the amount, date, and purpose

       of each such expenditure; and the name and address of, and office sought by, each candidate on whose behalf such expenditure was made. However, expenditures made from the petty cash fund provided by s. 106.12 need not be reported individually.

    2. The full name and address of each person to

       whom an expenditure for personal services, salary, or reimbursement for authorized expenses has been made and which is not otherwise reported, including the amount, date, and purpose of such expenditure. However, expenditures made from the petty cash fund provided for in s. 106.12 need not be reported individually.

    3. The total amount withdrawn and the total amount spent for petty cash purposes pursuant to this chapter during the reporting period.

    
    

    (Emphasis added.)

    
    

82. Although it is not clear exactly why the Respondent thought that it was permissible to use small cash contributions to replenish her campaign's petty cash without depositing them or reporting them, it is clear that the Respondent was not motivated by a desire to "beef up" her campaign treasurer's reports, as the Petitioner argues, and it was found that the Respondent was not using campaign funds for her own personal use and benefit, apart from the election campaign.

    
    

83. As for the allegations that the Respondent willfully falsely reported the identity of donors of cash, falsely reported business contributions as being from individuals, and falsely reported contributions over $100 as being several contributions of $100, those allegations were not proven. See Findings of Fact

    8 through 50, above. Likewise, it was not found that the Respondent willfully filed a false or incomplete termination report. See Findings of Fact 51 through 66, above.

    
    

    Allegedly False Termination Report

    
    

    And Improper Disposition of Surplus Funds

    
    

84. Section 106.141, Fla. Stat. (1993), which limits the disposition of surplus funds to means not used by the Respondent, also provides in pertinent part:

    
    

    1. Each candidate who . . . is . . . 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 . . . is . . . elected.

    2. Any candidate required to dispose of funds pursuant to this section may, prior to such disposition, be reimbursed by the campaign, in full or in part, for any reported contributions by the candidate to the campaign.

       
       

85. In this case, it was not proven that the Respondent willfully filed a false or incomplete termination report. See Findings of Fact 51 through 66, above.

RECOMMENDATION

Based on 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, Lydia Miller.

RECOMMENDED this 6th day of April, 1995, in Tallahassee, Florida.

J. LAWRENCE JOHNSTON 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 6th day of April, 1995.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-6612

To comply with the requirements of Section 120.59(2), Fla. Stat. (1993), the following rulings are made on the parties' proposed findings of fact:

Petitioner's Proposed Findings of Fact.

1. First sentence, accepted but subordinate and unnecessary. The rest is conclusion of law.

2.-3. Last two sentences, rejected as not proven. Otherwise, accepted and incorporated to the extent not subordinate or unnecessary.

1. Last two sentences, rejected as not proven. Otherwise, accepted and incorporated to the extent not subordinate or unnecessary.

2. Accepted and incorporated.

3. Rejected as not proven. (Rather, she complied with the donors' instructions as to the source of the donations and how to report them.)

4. First sentence, rejected as argument. Otherwise, accepted and incorporated to the extent not subordinate or unnecessary.

5. Rejected as not proven that the Respondent willfully filed false reports. As to Ackerman, rejected as not proven that the report was inaccurate. Otherwise, accepted and incorporated.

6. First sentence, rejected as not proven that he admitted his wife did not make the contribution. (He said it was possible that she made it but he does not think she did.) Second sentence, rejected as not proven as to Ackerman but otherwise, accepted and incorporated. Third sentence, rejected as not proven that she said Suzie Farmer was responsible; the Respondent admitted to handling the Ackerman contribution and testified that said that someone, quite possibly Farmer, attached an explanatory "Post-It" note to the other cash contributions. Last sentence, rejected as not proven.

7. Third, fifth and last sentences, rejected as not proven. Otherwise, accepted and incorporated to the extent not subordinate or unnecessary.

8. Rejected as not proven that the Respondent willfully made false reports. Otherwise, accepted and incorporated.

9. First, sixth penultimate and ultimate sentences, accepted but subordinate and unnecessary. The rest is rejected as not proven. (A review shows that she usually followed Barr's advice although not in each and every case.)

10. Penultimate sentence, rejected as not proven as to petty cash. Otherwise, accepted and incorporated.

11. Rejected as not proven.

12. Last sentence, rejected as not proven. Otherwise, accepted and incorporated to the extent not subordinate or unnecessary.

13. Accepted and incorporated.

14. Third sentence, rejected as not proven. Otherwise, accepted and incorporated to the extent not subordinate or unnecessary.

15. Penultimate and ultimate sentences, rejected as not proven. Otherwise, accepted and incorporated to the extent not subordinate or unnecessary.

16. First and last sentences, ejected as not proven. Otherwise, accepted and incorporated to the extent not subordinate or unnecessary.

17. First, sixth, seventh and eighth sentences, rejected as not proven. Otherwise, accepted and incorporated to the extent not subordinate or unnecessary.

18. Last sentence, rejected as not proven as to petty cash. Otherwise, accepted and incorporated to the extent not subordinate or unnecessary.

Respondent's Proposed Findings of Fact.

1. Accepted and incorporated to the extent not subordinate or unnecessary.

2. Accepted and incorporated to the extent not subordinate or unnecessary or argument.

3. Third paragraph, fourth sentence (that the small size of the individual alleged "masked" cash donations makes the allegation "absurd"), rejected as contrary to the greater weight of the evidence. (The point of the Petitioner's argument that a single fairly large cash contribution--which could have been in addition to reported contributions--could have been "masked" by fabricating many small cash contribution.) Otherwise, accepted and incorporated to the extent not subordinate or unnecessary or argument.

4. Second paragraph, first sentence (that the dispute concerned check #1072), rejected as contrary to the greater weight of the evidence. Third paragraph, first sentence, rejected in part (omission of January, 1993, bank statement as a cause of initial delay) as contrary to the greater weight of the evidence and in part (the Respondent's first campaign and the amounts involved) as irrelevant on the issue whether she willfully violated the law. Otherwise, accepted and incorporated to the extent not subordinate or unnecessary or argument.

COPIES FURNISHED:

David R. Westcott, Esquire Assistant General Counsel Department of State,

Division of Elections The Capitol, Room 2002

Tallahassee, Florida 32399-0250

Ralph C. Stoddard, Esquire

Hampton, Stoddard, Griffin & Runnells 915 Oakfield Drive, Suite F

Brandon, Florida 33511

Carlos Alvarez, Chairman Florida Elections Commission Room 1802, The Capitol Tallahassee, FL 32399-0250

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit to the Florida Elections Commission 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 consult with the Florida Elections Commission concerning its rules on the deadline for filing exceptions to this Recommended Order.

Docket for Case No: 94-006612

Orders for Case No: 94-006612