STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
MARY MCCARTY,
Petitioner,
vs.
FLORIDA ELECTIONS COMMISSION,
Respondent.
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) Case No. 02-3613
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THE COMMITTEE TO TAKE BACK OUR JUDICIARY,
Petitioner,
vs.
FLORIDA ELECTIONS COMMISSION,
Respondent.
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)
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) Case No. 02-4672
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AMENDED RECOMMENDED ORDER
Notice was provided, and a formal hearing was held on December 10, 2002, and February 18, 2003, in West Palm Beach, Florida, and on February 25, 2003, in Tallahassee, Florida, and conducted by Harry L. Hooper, Administrative Law Judge with the Division of Administrative Hearings.
APPEARANCES
For Petitioner Mary McCarty:
Mark Herron, Esquire
Messer, Caparello & Self, P.A. Post Office Box 1876 Tallahassee, Florida 32302-1876
and
J. Reeve Bright, Esquire Bright & Chimera
135 Southeast 5th Avenue, Suite 2 Delray Beach, Florida 33483-5256
For Respondent Florida Elections Commission:
Eric M. Lipman, Esquire Florida Elections Commission
107 West Gaines Street Collins Building, Suite 224
Tallahassee, Florida 32399-1050
STATEMENT OF THE ISSUE
Whether Petitioners violated provisions of Chapter 106, Florida Statutes, as alleged in the Order of Probable Cause filed August 23, 2002.
PRELIMINARY STATEMENT
Pursuant to a complaint, the Florida Elections Commission (Commission) investigated Petitioner Mary McCarty (Ms. McCarty) and Petitioner The Committee to Take Back Our Judiciary (The Committee). An Order of Probable Cause was filed with the Commission on August 23, 2002.
The Order of Probable Cause charged Mary McCarty and The Committee to Take Back our Judiciary with: (1) one count of violating Section 106.07(5), Florida Statutes, which prohibits a political committee chair from willfully certifying to the correctness of a campaign treasurer's report that is incorrect, false or incomplete; (2) one count of violating Section
106.11(3), Florida Statutes, which prohibits an officer or agent of a political committee from incurring an expense for the purchase of goods or services without sufficient funds on deposit in the primary campaign depository to pay the full amount of the authorized expenses, to honor all outstanding checks, and to pay all previously authorized but unpaid expenses; (3) nine counts of violating Section 106.19(1)(a), Florida Statutes; (4) one count of violating Section 106.19(1)(b), Florida Statutes, which prohibits a person or organization from failing to report a contribution required to be reported by Chapter 106, Florida Statutes; and (5) one count of violating Section 106.19(1)(d), Florida Statutes, which prohibits a person or organization from making or authorizing an expenditure prohibited by Section 106.11(3), Florida Statutes, or otherwise prohibited by Chapter 106, Florida Statutes.
A Petition for Formal Administrative Proceeding was filed in both cases on September 13, 2002. A request for a hearing before the Division of Administrative Hearings (Division), dated September 17, 2002, was filed with the Division on September 18, 2002, in the Mary McCarty case. A request for a hearing before the Division, dated December 2, 2002, was filed with the Division on December 3, 2002, in the case of The Committee.
The Mary McCarty case was set for hearing on November 26 and 27, 2002. Pursuant to a Joint Motion to Schedule Hearing,
the cause was moved to December 10 and 12, 2002. A Joint Motion to Consolidate Cases was filed on December 3, 2002, and the
Mary McCarty case was consolidated with The Committee to Take Back Our Judiciary, in an Order of Consolidation filed on December 4, 2002.
The hearing convened on December 10, 2002; however, due to the emergence of a question with regard to appropriate representation, the cause was continued on an ore tenus motion that resulted in a written Order Granting Continuance.
Thereafter, in an Amended Notice of Hearing, the case was set for February 18, 2003, in West Palm Beach, Florida, to be subsequently heard on February 25, 2003, in Tallahassee, Florida. The hearing was conducted as scheduled.
The Commission offered seven exhibits that were received into evidence. The Commission presented the testimony of
Ms. McCarty, Investigator Aidan Brainard, and Connie Evans.
Ms. McCarty offered 20 exhibits and 19 were admitted. The exhibit, which was not admitted, Exhibit S, was the deposition of Dianne Thorne. It was not admitted because it was hearsay, which was not within any exception. The case was set for hearing in West Palm Beach so that the situs of the hearing would be located within 100 miles of Ms. Thorne. Although
Ms. McCarty attempted to subpoena Ms. Thorne, and a certificate
of nonservice was filed, it is found that Ms. McCarty was not "unable" to procure the attendance of the witness by subpoena.
Counsel for Ms. McCarty made an offer of proof stating that Ms. Thorne would testify as follows: Ms. Thorne was associated with The Committee to Take Back Our Judiciary; she was retained by Mr. Roger Stone; she maintained the office of The Committee in Miami Beach, Florida; she received all correspondence that came to The Committee; she made The Committee's bank deposits; she performed at the direction of an office in Washington, D.C., which is associated with Mr. Snyder; all records of the contributions and expenditures of The Committee were sent to an office in Washington, D.C.; she was directed by the office in Washington, D.C. as to what bills to pay; all of the checks of The Committee were written by her but she was not the treasurer of The Committee; another person was treasurer of The Committee; and all of the operations of her office were directed by persons in Washington, D.C.
Ms. McCarty testified in her own behalf and presented the testimony of Inez Williams.
Counsel for Respondent requested that the record remain open and it was agreed that the record would remain open until March 4, 2003. During that time no additional pleadings or evidence was received. Accordingly the record was closed on March 4, 2003.
The parties both requested at the conclusion of the hearing that they have 30 days subsequent to the filing of the transcript to submit their Proposed Recommended Orders. The request was granted. The Transcript was filed on March 6, 2003. Proposed Recommended Orders were timely filed by both parties and were considered in the preparation of this Recommended Order.
Statutory references used herein are to Florida Statutes (2000), unless otherwise stated.
FINDINGS OF FACT
Chapters 97 through 106, Florida Statutes, comprise the Florida Election Code (Code). Pursuant to the Code, the Commission is empowered specifically to enforce the provisions of Chapters 104 and 106, Florida Statutes.
Mary McCarty was elected to the City Commission of Delray Beach, Florida in 1987. She was elected to the Palm Beach County Commission in 1990. She has been returned to that office in each subsequent election and she is currently a member of the Palm Beach County Commission. In November of 2002, she was elected to her fourth term as Chairman of the Palm Beach County Republican Executive Committee.
The Committee to Take Back Our Judiciary was an unincorporated entity. It was a de facto committee, which, for
reasons addressed herein, did not ever become a "political committee" as defined in Section 106.011(1), Florida Statutes.
Ms. McCarty has run for public office six times and was successful on each occasion. Prior to each election she received from the Florida Secretary of State a handbook addressing campaign financing. She is familiar with the statutes and rules with regard to financing an individual campaign.
Sometime before the Thanksgiving Holiday in 2000, Ms. McCarty received a telephone call from Roger Stone of Washington, D.C. Ms. McCarty knew Mr. Stone, who at various times had been a campaign operative for Senator Arlen Specter, had been involved in opposing the sugar tax amendment in Florida, and had been a consultant to Donald Trump, during his short-lived presidential campaign. Ms. McCarty was aware that Mr. Stone and Craig Snyder were principals of IKON Public
Affairs, a business entity with offices in Washington, D.C., and Miami Beach, Florida.
Roger Stone informed Ms. McCarty that he was forming a committee to raise funds for the purpose of taking action against the Florida Supreme Court. Mr. Stone stated that he had formed The Committee and that he wished for her to be the chairperson. She did not initially commit to undertake this responsibility.
A few days after the conversation with Mr. Stone,
Ms. McCarty received a facsimile draft of a fundraising letter that The Committee proposed to post. The facsimile was sent by Roger Stone from Washington. She made some suggested changes and returned it to the address in Washington from whence it came.
Subsequently, she had a telephone conversation with Lora Lynn Jones of Unique Graphics and Design in Alexandria, Virginia. Ms. Jones was in the business of making mass mailings. Ms. McCarty told Ms. Jones that her name could be used on the fundraising letter although Ms. McCarty did not sign the fundraising letter. Nevertheless, the document was mailed to a large number of people and it bore the printed name, "Mary McCarty, Palm Beach County Commissioner."
The first time Ms. McCarty saw The Committee's finished product it was in the form of a "Telepost, high priority communication." She first saw the "Telepost" when it arrived in her mailbox in early December 2000. The wording of the letter was different from the draft Ms. McCarty had seen earlier. Unlike the draft, it targeted specific justices on the Florida Supreme Court. It cannot be determined from the evidence the date the December "Telepost" was posted, but it was posted before Ms. McCarty determined that she had become Chairperson of The Committee.
The "Telepost," dated December 2000, solicited funds so that The Committee could, ". . . send a clear message to the Florida Supreme Court that we will not tolerate their efforts to highjack the Presidential election for Al Gore."
Later in December 2000, Mr. Stone called Ms. McCarthy and told her that she should be the chairman of The Committee. She agreed.
Ms. McCarty signed a "Statement of Organization of Political Committee," which was dated December 19, 2000. This is a form provided by the Division of Elections, which, if properly completed and filed, officially establishes a political committee. She also signed a form entitled "Appointment of Campaign Treasurer and Designation of Campaign Depository for Political Committee." Mr. Stone, or his operatives, provided these forms to Ms. McCarty. She signed them and mailed them to Mr. Stone's address in Washington, D.C., which was the headquarters of the IKON Public Affairs Group.
The "Statement of Organization of Political Committee," dated December 19, 2000, was received by the Division of Elections on December 26, 2000. It listed Amber McWhorter as Treasurer. Inez Williams, who works in the document section of the Division of Elections, processed the form. When Ms. Williams received it, she recognized that the form was incomplete because on the face of it the reader could
not determine if the committee was an "issue" committee, or a "candidate" committee.
Ms. Williams noted that the mailing address on the form dated December 19, 2000, was "c/o VisionMedia," 1680 Michigan Avenue, Suite 900, Miami Beach, Florida. Ms. Williams found a telephone number for that business and dialed it, on December 27, 2000. No one answered so she left a message on VisionMedia's answering machine.
In addition to the telephone call, Ms. Williams prepared a letter with the address of, "Mary McCarty, Chairperson, The Committee to Take Back Our Judiciary, 1348 Washington Avenue, Suite 177, Miami Beach, Florida." This letter was dated December 27, 2000, and was signed by Connie A. Evans, Chief, Bureau of Election Records. This is the address found on the "Appointment of Campaign Treasurer and Designation of Campaign Depository for Political Committee," which had also been received by the Division of Elections on December 26, 2000.
The letter signed by Ms. Evans on December 27, 2001, informed Ms. McCarty that items 3 and 7 needed to be "rephrased." It further informed Ms. McCarty, that upon receipt of the requested information the committee would be included on the "active" list.
The message recorded on The Committee answering machine on December 27, 2001, generated a response from a person
who identified himself as Mr. Snyder, on January 2, 2002. Mr. Snyder engaged in a telephone conversation with Ms.
Williams. Ms. Williams explained to Mr. Snyder that items 3, 5, 7, and 8, would have to be completed properly as a condition of The Committee's being recognized.
A letter dated January 4, 2001, bearing the letterhead of "The Committee to Take Back Our Judiciary," and signed by Amber Allman McWhorter, was faxed to the Division of Elections on January 4, 2001, and received that date. This letter referenced the telephone call between Ms. Williams and Craig Snyder, who was further identified as The Committee's attorney. The letter stated that a corrected Statement of Organization of Political Committee, and a designation of treasurer, would be forwarded to the Division of Elections within the next 72 hours.
On January 8, 2001, a filing was received by the Division of Elections that was deemed by the Division to be complete. Subsequently, in a letter dated January 10, 2001, and signed by Connie Evans, informed Ms. McCarty and The Committee that the Statement of Organization and the Appointment of Campaign Treasurer and Designation of Campaign Depository for The Committee complied with the Division of Elections' requirements. The Committee was provided with Identification No. 34261. Posted with the letter was a copy of the "2000 Handbook for Committees," which is published by the Division of
Elections. The letter and the handbook were sent to The Committee operation in Miami, not Ms. McCarty, and no one in the Miami Beach operation ever forwarded it to her.
Connie Evans, Bureau Chief of Election Records, the entity that supervises the filing of the forms mentioned above, believes that due to a court ruling in Florida Right to Life v.
Mortham, Case No. 98-770-Civ-Orl-19A, the language in Section 106.011, Florida Statutes, which defines a "political committee," has been found to be unconstitutional. She believes that a political committee is not required to register with the Division of Elections but that if a committee does register, it must abide by the statutes regulating political committees.
Ms. Evans has informed numerous entities of this interpretation of the law in letters. The efficacy of that case, and
Ms. Evans' interpretation of it, will be discussed further in the Conclusions of Law, below.
Ms. McCarty signed a "Campaign Treasurer's Report Summary"(CTR-Q1) which was filed with the Division of Elections on April 10, 2001. This addressed the period January 1, 2001 until March 31, 2001. Under the certification section of the CTR-Q1 are the words, "It is a first degree misdemeanor for any person to falsify a public record (ss. 839.13, F.S.)." Immediately above her signature are the words, "I certify that I have examined this report and it is true, correct, and
complete." The box found immediately above and to the right of her signature, was checked to signify that Ms. McCarty was the chairperson of The Committee.
According to Ms. Evans, The Division of Elections regulates several kinds of committees. There are "issues" committees, "candidate" committees," "party executive" committees, and "committees of continuing existence." Depending on the nature of the committee, different rules apply. The Committee was a "candidate" committee so the contribution regulations of a political candidate applied to the committee. That meant that the maximum contribution per person was $500.
The CTR-Q1 indicated in the "Itemized Contributions Section" that seven people contributed $1,000 and one person contributed $2,000. Walter Hunter, Neda Korich, Arthur Allen, William Shutze, Caroline Ireland, Henry Allen, and Honore Wansler, contributed $1,000, each. Robert Morgan contributed
$2,000.
The amounts in excess of $500 were eventually returned to the $1,000 contributors, except that in the case of Henry Allen, the refund was made to Allen Investment corporation. The sum of $1,500 was returned to Robert Morgan, the $2,000 contributor, but the CTR-Q1 listed only a $500 repayment. Therefore, the CTR-Q1 in its expenditures section was incorrect with regard to Mr. Morgan.
The CTR-Q1 also listed in the "Itemized Contributions Section" the receipt, on January 2, 2001, of $150,000 for "LOA/INK extension of credit for direct mail services." These words may be interpreted to mean that a loan in the form of an "in kind" service had been provided. This was reported under the name of Creative Marketing, 2760 Eisenhower Avenue, Suite 250, Alexandria, Virginia.
The Committee had a bank account at CityBank of Miami, Florida. The sole authorized signatory on the account was Diane Thorne. The Account No. was 3200015694. There was no entry in the bank account of the receipt of $150,000. This indicates that the item was not processed through the bank and it would not have been processed through the bank if it were really an "in kind" contribution. Because the beginning balance was zero on February 8, 2001, it is concluded that the inception date of Account No. 3200015694 was February 8, 2001.
Lora Lynn Jones, is the principal of Unique Graphics and Design, which is located in Suite 253, at an address in Alexandria, Virginia, which is not further identified in the evidence of record. Ms. Jones prepared and posted the fundraising letter of December 2000, at the direction of
Mr. Stone. Ms. Jones talked on the telephone with Ms. McCarty prior to mailing the fundraising letter and determined that the language in the letter was agreeable to Ms. McCarty.
At the direction of Mr. Stone, Ms. Jones requested payment and received payment for her work, but from whom she cannot remember, except that she is sure that Creative Marketing did not pay it. The money for this production was paid in advance by wire transfer. There is no evidence in the record that this was paid from the account of The Committee. In fact, because the payment was made sometime in early December 2000, it could not have been paid from the account because it had not been opened.
Ms. Jones is aware of an entity by the name of Creative Marketing Company and she believes it may be located in Northern Virginia, but she is not involved with it. It is found by clear and convincing evidence that the fundraising letter was not paid for by Creative Marketing, 2760 Eisenhower Avenue, Suite 250, Alexandria, Virginia.
The bank records of The Committee reflect a $50,000 expenditure made to Unique Graphics and Design, paid with a check dated May 9, 2001. This represents a payment for something other than the fundraising letter dated December 2000.
The $50,000 item was reported as an expenditure on the CTR-Q1 that was reported to have been made on March 12, 2001. It was reported as having been made to Creative Marketing as payee. The only check in the amount of $50,000, reflected in The Committee checking account for the period February 8, 2001,
to June 30, 2001, was payable to Unique Graphics and Design and was dated May 9, 2001. Therefore, it is found that the CTR-Q1 is incorrect when it was reported as having been made on
March 12, 2001, to Creative Marketing.
Ms. Jones believes there is a company by the name of Creative Marketing Company, which she believes may be located in Northern Virginia, but she is not involved with it.
Contributions remitted in response to the fundraising letter were forwarded to one of Mr. Stone's two addresses. Because the address of 1348 Washington Avenue, Suite 177, in Miami Beach, Florida, is the address listed on the fundraising letter, it is likely that contributions in response to the fundraising letter went to Mr. Stone's Miami Beach operation. In any event, it is found as a fact that Ms. McCarty did not personally receive or have any contact with any of the contributions remitted to The Committee.
The people handling the receipt of funds and the deposits were Roger Stone and people paid by his organization, including Diane Thorne, the secretary; Amber McWhorter, the treasurer; and Craig Snyder.
Just as Ms. McCarty was not involved in the receipt of income to The Committee, she was also not involved in the disbursement of funds.
The CTR-Q1 was completed by The Committee's staff in either Miami Beach or Washington, D.C., but Ms. McCarty had no input into its preparation. When Ms. McCarty signed the CTR-Q1 she was without knowledge as to whether the report was truthful, correct, or complete. It is further found that she made no effort to ascertain whether the report was truthful, correct, or complete. She believed it to be true and correct because she trusted Mr. Stone's operatives to accurately prepare the report.
Ms. McCarty, excepting the current litigation, has never been the subject of a Commission action.
Ms. McCarty has an income of approximately $80,000.
She owns a residence jointly with her husband which is valued at approximately $300,000 and which is subject to a mortgage of approximately $200,000. She owns a vacation home in Maine jointly with her husband that is valued at approximately
$25,000. She and her husband own three automobiles. She owns stocks, annuities, mutual funds or certificates of deposit of an indeterminate value.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter of and the parties to this proceeding. Sections 106.25(5) and 120.57(1), Florida Statutes.
The burden of proof, absent a statutory directive to the contrary, is on the party asserting the affirmative of the
issue in the proceeding. Department of Transportation v. J.W.C. Company, Inc., 396 So. 2d 778 (Fla. 1st DCA 1981); and Balino v.
Department of Health and Rehabilitative Services, 348 So. 2d 349 (Fla. 1st DCA 1977). In this proceeding, it is the Commission that is asserting the affirmative and, therefore, the Commission has the burden of proof.
The Commission seeks to impose a civil penalty on Petitioner, pursuant to Section 106.265, Florida Statutes, in the form of a fine not to exceed $1,000 per count. The imposition of an administrative fine or a civil penalty, is punitive and penal in nature. Therefore, the Commission must prove its case by clear and convincing evidence. Department of Banking and Finance v. Osborne Stern & Company, 670 So. 2d 932, 935 (Fla. 1996).
Statutes which authorize the imposition of a penal sanction must be strictly construed and any ambiguity must be construed in favor of Petitioner. Elmariah v. Department of Professional Regulation, 574 So. 2d 164, 165 (Fla. 1st DCA 1990). Moreover, Section 775.021(1), Florida Statutes, provides that "offenses" defined by any Florida Statutes must be construed most favorably to the offender if the language is susceptible to different meanings.
Section 106.011(1), Florida Statutes, defines "political committee" as follows:
106.011 Definitions. As used in this chapter, the following terms have the following meanings unless the context clearly indicates otherwise:
(1) "Political committee" means a combination of two or more individuals, or a person other than an individual, the primary or incidental purpose of which is to support or oppose any candidate, issue, or political party, which accepts contributions or makes expenditures during a calendar year in an aggregate amount in excess of $500; "political committee" also means the sponsor of a proposed constitutional amendment by initiative who intends to seek the signatures of registered electors. Organizations which are certified by the Department of State as committees of continuous existence pursuant to s. 106.04, national political parties, and the state and county executive committees of political parties regulated by chapter 103 shall not be considered political committees for the purposes of this chapter. Corporations regulated by chapter 607 or 617 or other business entities formed for purposes other than to support or oppose issues or candidates are not political committees if their political activities are limited to contributions to candidates, political parties, or political committees or expenditures in support of or opposition to an issue from corporate or business funds and if no contributions are received by such corporations or business entities.
In an order entered on December 15, 1999, the U.S. District Court for the Middle District of Florida declared Section 106.011(1), Florida Statutes, to be "overly broad in violation of the First and Fourteenth Amendments to the United States Constitution" and enjoined the Commission, "from
enforcing or taking any action to enforce Section 106.011(1), Florida Statutes." Florida Right to Life, Inc. v. Mortham, 1999 WL 33204523 (M.D. Fla. 1999), at page 7. On appeal, the U.S. Court of Appeals for the 11th Circuit, upheld the district court, stating that, "we find no error in the district court's enjoining the enforcement of Florida Statutes Section 106.011(1) because it is unconstitutionally overbroad under the First Amendment. Florida Right to Life, Inc. v. Lamar, 238 F2d. 1288 (11th Cir. 2001).
Chapter 2002-197, Laws of Florida, enacted in 2002, provided a new definition for "political committee." See Section 106.011(1)(a), Florida Statutes (2002).
A committee is commonly defined as a group of persons formed for a particular purpose. Its scope may be narrow or broad. A committee must consist of two or more persons. Committee's typically make collegial decisions. A political committee is a committee that has a political purpose. Prior to the appointment of Ms. McCarty, the evidence indicates that there was no committee. Instead, an entity controlled by
Mr. Stone, IKON Public Affairs Group, a business, was conducting business as promoters of a committee.
Once Ms. McCarty became chair, on or about
December 19, 2000, a de facto committee political committee came into existence. However, because of the rulings in the Mortham
and Lamar cases, it could not become a committee as defined in Section 106.011(1), Florida Statutes. Because The Committee could not become a committee as defined by Chapter 106, it could not be subject to regulation by the Division of Elections, even though The Committee voluntarily registered with the Division of Elections.
Section 106.03, Florida Statutes, provides as follows:
106.03. Registration of political committees.
Each political committee which anticipates receiving contributions or making expenditures during a calendar year in an aggregate amount exceeding $500 or which is seeking the signatures of registered electors in support of an initiative shall file a statement of organization as provided in subsection (3) within 10 days after its organization or, if later, within 10 days after the date on which it has information which causes the committee to anticipate that it will receive contributions or make expenditures in excess of $500. If a political committee is organized within 10 days of any election, it shall immediately file the statement of organization required by this section.
The statement of organization shall include:
(a) The name and address of the committee;
The name, address, and position of the custodian of books and accounts;
The name, address, and position of other principal officers, including officers and members of the finance committee, if any;
The name, address, office sought, and party affiliation of:
Each candidate whom the committee is supporting;
Any other individual, if any, whom the committee is supporting for nomination for election, or election, to any public office whatever;
Any issue or issues such organization is supporting or opposing;
If the committee is supporting the entire ticket of any party, a statement to that effect and the name of the party;
A statement of whether the committee is a continuing one;
Plans for the disposition of residual funds which will be made in the event of dissolution;
A listing of all banks, safe-deposit boxes, or other depositories used for committee funds; and
A statement of the reports required to be filed by the committee with federal officials, if any, and the names, addresses, and positions of such officials.
The Committee did not comply with Section 106.03, Florida Statutes, until on or about January 8, 2001. Therefore it was not properly registered with the Division of Elections until that date.
Despite the fact The Committee was not registered, it was in existence from at least December 19, 2000, because Section 106.03, Florida Statutes, contemplates a committee being in existence prior to the time it is required to register, and on that date it took a clear action indicating its existence when the chairperson, Ms. McCarty, signed the "Statement of Organization of Political Committee" and the "Appointment of Campaign Treasurer and Designation of campaign Depository for Political Committee."
It is the policy of the Division of Elections, to treat a committee that has not been registered, as a free form entity that is not subject to Chapter 106, Florida Statutes. For purposes of these proceedings it is not necessary to determine if that rationale is correct. In addressing the various counts, The Committee will be deemed to have come into existence on December 19, 2000, and to have become a registered committee subject to Chapter 106, Florida Statutes, on
January 8, 2001. The First Count
The Order of Probable Cause, in the First Count, charged both The Committee and Ms. McCarthy with violating Section 106.07(5), Florida Statutes, which provides as follows:
106.07. Reports; certification and filing
* * *
(5) The candidate and his or her campaign treasurer, in the case of a candidate, or the political committee chair and campaign treasurer of the committee, in the case of a political committee, 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.
Section 106.07(5), Florida Statutes, does not address actions by committees. Therefore, The Committee did not violate the statute.
The first sentence in Section 106.07(5), Florida Statutes is directive in nature. It provides that a committee chair must submit a report and provides that a committee chair shall bear the responsibility for the accuracy and veracity of each report. In other words, this charges the chairperson with accomplishing specific duties.
The second sentence sets forth a substantive offense.
It condemns signing a campaign report willfully while knowing that is "incorrect, false, or incomplete."
The CTR-Q1 signed by Ms. McCarty was incorrect in the following instances:
The expenditure section reported that Robert Morgan was refunded $500 when in fact he was refunded $1,500.
The $150,000 item for direct mail services indicated that an "in kind" contribution, or loan, had been made, when in fact someone other than The Committee paid for the fundraising letter and because this sum was not disbursed to Creative Marketing as reported.
A $50,000 item was listed as a payment to Creative Marketing on March 12, 2001, when in fact no payment was made on that date and the payment was made instead to Unique Graphics
and Design. The payment to Unique Graphics and Design was made via a check dated May 9, 2001.
Having found that the CTR-Q1 signed by Ms. McCarty was incorrect, it is next necessary to determine if her actions were willful, and accomplished while knowing that the report was incorrect.
Section 106.37, Florida Statutes, provides as follows:
106.37. Willful violations.
A person willfully violates a provision of this chapter if the person commits an act while knowing that, or showing reckless disregard for whether, the act is prohibited under this chapter, or does not commit an act while knowing that, or showing reckless disregard for whether, the act is required under this chapter. A person knows that an act is prohibited or required if the person is aware of the provision of this chapter that prohibits or requires the act, understands the meaning of that provision, and performs the act that is prohibited or fails to perform the act that is required.
A person shows reckless disregard for whether an act is prohibited or required under this chapter if the person wholly disregards the law without making any reasonable effort to determine whether the act would constitute a violation of this chapter.
Ms. McCarthy willfully violated Section 106.07(5), Florida Statutes, because, having been duly warned by the language appearing above the signature block of the CTR-Q1, and having had experience in requirements surrounding the preparation and submission of campaign treasurer's reports, she
showed a reckless disregard for whether or not the report was correct. Ms. McCarthy knowingly violated Section 106.07(5), Florida Statutes, because she knew of the requirements surrounding the preparation of campaign treasurer reports, even though she may not have been entirely familiar with the law surrounding political committees. Despite warnings on the face of the document she signed, she nevertheless made no attempt to determine if the report she submitted was correct.
Accordingly, the First Count would be proven as to Ms. McCarty, except that The Committee was not subject to regulation by the Division of Elections because there was at the time, no statutory definition of "political committee."
Ms. McCarty could not have been a "political committee chair," as would be required for her to have violated the statute, because Mortham and Lamar, have made the term "political committee" inoperative.
The Committee cannot be found to have violated this section as alleged because the statute does not proscribe any action of or by The Committee, nor does it penalize The Committee for the actions of any of its officers that violate the statute.
The Second Count
The Second Count in the Order of Probable Cause charged The Committee and Ms. McCarthy with violating Section
106.11(3), Florida Statutes. The Statement of Findings of the Commission alleges the violation occurred when The Committee or Ms. McCarthy incurred an expense for the purchase of goods or services, to wit, the fundraising letter, when there were insufficient funds on deposit in the primary campaign depository to pay the full amount of the incurred expense.
Section 106.11(3), Florida Statutes, provides as follows:
106.11. Expenses of and expenditures by candidates and political committees
Each candidate and each political committee which designates a primary campaign depository pursuant to s. 106.021(1) shall make expenditures from funds on deposit in
such primary campaign depository only in the following manner, with the exception of expenditures made from petty cash funds provided by s. 106.12:
* * *
(3) No candidate, campaign manager, treasurer, deputy treasurer, or political committee or any officer or agent thereof, or any person acting on behalf of any of the foregoing, shall authorize any expenses, nor shall any campaign treasurer or deputy treasurer sign a check drawn on the primary campaign account for any purpose, unless there are sufficient funds on deposit in the primary depository account of the candidate or political committee to pay the full amount of the authorized expense, to honor all other checks drawn on such account, which checks are outstanding, and to meet all expenses previously authorized but not
yet paid. However, an expense may be incurred for the purchase of goods or services if there are sufficient funds on deposit in the primary depository account to pay the full amount of the incurred expense, to honor all checks drawn on such account, which checks are outstanding, and to meet all other expenses previously authorized but not yet paid, provided that payment for such goods or services is made upon final delivery and acceptance of the goods or services; and an expenditure from petty cash pursuant to the provisions of s 106.132 may be authorized, if there is a sufficient amount of money in the petty cash fund to pay for such expenditure. Payment for credit card purchases shall be made pursuant to s. 106.125. Any expense incurred or authorized in excess of such funds on deposit shall, in addition to other penalties provided by law, constitute a violation of this chapter.
The Committee cannot be found to have violated this section as alleged because the statute does not proscribe any action of or by The Committee, nor does it penalize the Committee for the actions of any of its officers that violate the statute.
The expenditure addressed in the Second Count refers to the mailing of the letter of December 2000, sent out under Ms. McCarty's name as Palm Beach County Commissioner.
Ms. McCarty was not the chairperson of The Committee when the expense was incurred. This expense was incurred at the direction of Mr. Stone and his operatives, not by Ms. McCarty. Moreover, Ms. McCarty could not have been a "political committee
chair," as would be required for her to have violated the statute, because Mortham and Lamar, have made the term "political committee" inoperative.
Counts Three through Eleven
The Order of Probable Cause alleges nine separate counts of violating Section 106.19(1)(a), Florida Statutes, addressing the receipt of contributions in excess of $500, as follows:
Count Three, referring to Creative Marketing.
Count Four, referring to Walter Hunter.
Count Five, referring to Neda Korich.
Count Six, referring to Arthur Allen.
Count Seven, referring to Robert Morgan.
Count Eight, referring to William Shutze.
Count Nine, referring to Caroline Ireland.
Count Ten, referring to Henry Allen.
Count Eleven, referring to Honore Wamsler.
Section 106.19(1)(a), Florida Statutes, provides as
follows:
106.19. Violations by candidates, persons connected with campaigns, and political committees
Any candidate; campaign manager, campaign treasurer, or deputy treasurer of any candidate; committee chair, vice chair, campaign treasurer, deputy treasurer, or other officer of any political committee;
agent or person acting on behalf of any candidate or political committee; or other person who knowingly and willfully:
Accepts a contribution in excess of the limits prescribed by s. 106.08;
* * *
. . . is guilty of a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083.
The contribution limit set by Section 106.08(1)(a), Florida Statutes, is $500. On eight occasions, The Committee received contributions of greater than $500. On another occasion, a campaign contribution was accepted which was $1,500, more than the allowable amount. The statute addresses persons acting on behalf of committees; therefore, The Committee cannot violate this statute.
During the time Ms. McCarty served as Chairperson, she was unaware of the amount of the contributions received or the identity of the contributors. The "Telepost" requested that contributions be sent to The Committee address on Washington Avenue in Miami Beach. The contributions were received in the Miami Beach office and were deposited in a bank located in Miami by people who worked for Mr. Stone. Accordingly, it would be incorrect to say that Ms. McCarty accepted contributions.
With regard to whether Ms. McCarty knowingly and willfully violated the statute as alleged, it is
incontrovertible that Ms. McCarty was completely unaware of the amount of the contributions or the identity of the contributors until she received the CTR-Q1 which had been prepared by
Mr. Stone's operatives. She relied entirely on Mr. Stone and his operatives and relied on his knowledge of the law surrounding contribution limits as it applied to committees.
The CTR-Q1, in its expenditure section, reflected the return of excess contributions except in the case of Creative Marketing and Robert Morgan. In the case of the latter a return of the excess contribution was reflected, but in an incorrect amount. Accepting a contribution in excess of the permissible amount and returning it in the same reporting cycle is inconsistent with knowingly and willfully committing an offense. Taken as a whole, the evidence fails to demonstrate that
Ms. McCarty accepted contributions, and even if it were to be concluded that she accepted contributions, the evidence fails to demonstrate that she knew that The Committee had accepted contributions in excess of lawful amounts. If she didn't know that the excess contributions had been accepted, a fortiori, she couldn't have willfully accepted them.
For the foregoing reasons, neither The Committee nor Ms. McCarty violated Section 106.19(1)(a), Florida Statutes, as alleged in Counts Three through Eleven. Moreover, Ms. McCarty could not have been a "political committee chair," as would be
required for her to have violated the statute, because Mortham and Lamar, have made the term "political committee" inoperative. Count Twelve
The Commission alleged in its Order of Probable Cause that The Committee and Ms. McCarthy violated Section 106.19(1)(b), Florida Statutes, by failing to report a contribution required to be reported by Chapter 106, Florida Statutes. Resort to the Statement of Findings reveals that this charge addresses the $150,000 contribution reported as "LOA/INK extension of credit for direct mail services."
Section 106.19(1)(b), Florida Statutes, provides as follows:
106.19. Violations by candidates, persons connected with campaigns, and political committees
(1) Any candidate; campaign manager, campaign treasurer, or deputy treasurer of any candidate; committee chair, vice chair, campaign treasurer, deputy treasurer, or other officer of any political committee; agent or person acting on behalf of any candidate or political committee; or other person who knowingly and willfully:
* * *
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.
The Committee cannot be found to have violated this section as alleged because the statute does not proscribe any action of or by The Committee, nor does it penalize The Committee for the actions of any of its officers that violate the statute.
The Committee and Ms. McCarty reported the $150,000 on the CTR-Q1. The receipt of the $150,000 was reported. It was reported, however, in such an ambiguous manner, that it cannot be determined from the entry whether an in kind contribution was received, or whether a loan was extended. This is incorrect, false or incomplete information because the $150,000 came from Mr. Stone or his organization, not from Creative Marketing as reported. But it is not a failure to report a contribution. This expenditure was made prior to the formation of The Committee. This count is not proved in the case of The Committee, or in the case of Ms. McCarty. Moreover, Ms. McCarty could not have been a "political committee chair," as would be required for her to have violated the statute, because Mortham
and Lamar, have made the term "political committee" inoperative. Count Thirteen
The final count in the Order of Probable Cause alleges a violation of Section 106.19(1)(d), Florida Statutes, in that The Committee or Ms. McCarty made or authorized an expenditure prohibited by Chapter 106.
Section 106.19(1)(d), Florida Statutes, provides as follows:
106.19. Violations by candidates, persons connected with campaigns, and political committees
(1) Any candidate; campaign manager, campaign treasurer, or deputy treasurer of any candidate; committee chair, vice chair, campaign treasurer, deputy treasurer, or other officer of any political committee; agent or person acting on behalf of any candidate or political committee; or other person who knowingly and willfully:
* * *
(d) Makes or authorizes any expenditure in violation of s. 106.11(3) or any other expenditure prohibited by this chapter;
* * *
. . . is guilty of a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083.
In order to determine if a violation of this section has occurred, reference must be made to Section 106.11(3), Florida Statutes, which is quoted in its entirety at paragraph 57, above, and which provides generally that a committee may not incur obligations without having money to meet those obligations.
Reference must be made also to "any other expenditure prohibited by" Chapter 106. The Findings of Fact state that this Count refers to the $150,000 expense to print and
distribute the fund-raising letter. The violation is alleged to have occurred because the expense was incurred when there were no funds in the committee's campaign account. The Commission failed to prove that The Committee was extant when this occurred. Moreover, Ms. McCarty could not have been a "political committee chair," as would be required for her to have violated the statute, because Mortham and Lamar, have made the term "political committee" inoperative. Accordingly, neither The Committee nor Ms. McCarty committed the violation alleged as Count 13.
Ms. McCarty has no previous history of election law violations. She has a substantial income.
Based upon the Findings of Fact and Conclusions of Law, it
is
RECOMMENDED:
That a final order be entered dismissing the Orders of
Probable Cause entered in the case of both Mary McCarty and The Committee to Take Back Our Judiciary.
DONE AND ENTERED this 1st day of May, 2003, in Tallahassee, Leon County, Florida.
HARRY L. HOOPER
Administrative Law Judge
Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, Florida 32399-3060
(850) 488-9675 SUNCOM 278-9675
Fax Filing (850) 921-6847 www.doah.state.fl.us
Filed with the Clerk of the Division of Administrative Hearings this 1st day of May, 2003.
COPIES FURNISHED:
Kendall Coffey, Esquire Coffey & Wright, LLP
2665 South Bayshore Drive Grand Bay Plaza, Penthouse 2B Miami, Florida 33133
J. Reeve Bright, Esquire Bright & Chimera
135 Southeast 5th Avenue, Suite 2 Delray Beach, Florida 33483-5256
Mark Herron, Esquire
Messer, Caparello & Self, P.A. Post Office Box 1876 Tallahassee, Florida 32302-1876
Eric M. Lipman, Esquire Florida Elections Commission
107 West Gaines Street Collins Building, Suite 224
Tallahassee, Florida 32399-1050
Barbara M. Linthicum, Executive Director Florida Elections Commission
107 West Gaines Street Collins Building, Suite 224
Tallahassee, Florida 32399-1050
Patsy Ruching, Clerk
Florida Elections Commission
107 West Gaines Street Collins Building, Suite 224
Tallahassee, Florida 32399-1050
NOTICE OF RIGHT TO SUBMIT EXCEPTIONS
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.
| Issue Date | Document | Summary |
|---|---|---|
| Aug. 22, 2003 | Agency Final Order | |
| May 01, 2003 | Recommended Order | |
| Apr. 21, 2003 | Recommended Order | Petitioners found not to have violated the Florida Election Code. |
ALAN SCHREIBER vs FLORIDA ELECTIONS COMMISSION, 02-004672 (2002)
MARY MCCARTY vs FLORIDA ELECTIONS COMMISSION, 02-004672 (2002)
FLORIDA ELECTIONS COMMISSION vs VIBERT L. WHITE, JR., 02-004672 (2002)
FLORIDA ELECTIONS COMMISSION vs ADRIANNA NARVAEZ, 02-004672 (2002)
FLORIDA ELECTIONS COMMISSION vs BRIAN PITTS, TREASURER, JUSTICE-2-JESUS, 02-004672 (2002)
