vs.
Respondent.
) Case No. 04-1999
The Florida Elections Commission (FEC) remanded DOAH Case No. 04-1999 to the Division of Administrative Hearings (DOAH) by its order styled “Order Remanding Cause to the Division of Administrative Hearings” dated June 26, 2006 (Order of Remand). The stated purpose of the remand is for DOAH to make “. . . a factual finding on the issue of willfulness unconstrained by the Commission’s prior decisions in which it used Section 106.37[1] as the standard for willfulness in Chapter 104 cases.”
Following the Order of Remand, the parties agreed that no additional evidence would be presented, but they were afforded the opportunity to submit proposed recommended orders on the issues raised by the Order of Remand. The parties thereafter submitted proposed recommended orders, which have been considered by the undersigned in the preparation of this
order. No additional evidence was been taken following the Order of Remand.
A brief recitation of the history of DOAH Case No. 04-1999 will help put the stated issue in context.
On February 24, 2004, the FEC entered an Order of Probable Cause which alleged certain facts and, based on those alleged facts, charged Respondent with multiple violations of Section 104.051(2), Florida Statutes. The referenced statute provided as follows:
(2) Any official who willfully refuses or willfully neglects to perform his or her duties as prescribed by this election code is guilty of a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083.
A formal hearing based on the Order of Probable Cause was conducted in DOAH Case 04-1999 on January 11, 12, and 20, 2005.
On August 29, 2005, the undersigned entered a Recommended Order in DOAH Case No. 04-1999 (the RO). On November 18, 2005, Petitioner entered a Final Order (the initial FO) in DOAH Case No. 04-1999. As a result of the opinion issued by the court in Fugate v. Florida Elections Commission, 924 So. 2d 74 (Fla. 1st DCA 2006) (the Fugate opinion), the FEC vacated its initial FO in DOAH Case No. 04-1999 and entered the Order of Remand referenced above.
In reaching the conclusion that Respondent had violated Section 104.021(2), Florida Statutes, both the RO and the initial FO entered in DOAH Case 04-1999 applied the definition of the term “willful” set forth in Section 106.37, Florida Statutes, to the offense(s) proscribed by Section 104.021(2). The RO and the initial FO reached different conclusions as to the scope of the violations, but those differences are not presently at issue.
As reflected by the RO in DOAH Case 04-1999, the undersigned felt constrained to follow the FEC’s Final Order in Florida Elections Commission v. John J. Fugate, DOAH Case
No. 04-1178 (December 22, 2004) (the Fugate FO), which held that the Section 106.37 definition of the term “willful” should be used to determine whether Section 104.021(2) had been violated.
The FEC also relied on the Fugate FO when it entered its initial FO in DOAH Case No. 04-1999.
The First District Court of Appeal reversed the Fugate FO by its Fugate opinion.
The court in the Fugate opinion observed the following, at page 75 of the opinion:
[T]he ALJ relied on Metropolitan Dade County v. Dep’t of Envtl. Prot., 714 So. 2d 512, 516-17 (Fla. 3d DCA 1998), as well as the cases, treatises, and dictionaries cited therein, to define a willful act as one that is voluntarily and intentionally performed with specific intent and bad purpose to
violate or disregard the requirements of the law. In the absence of a statute or properly promulgated rule defining the term, the case-law derived definition used by the ALJ was reasonable.
Paragraphs 62 and 63 of the RO entered in DOAH Case No. 04-1999 are as follows:
In support of its position that intent is an essential element of the alleged offenses and that the definition in Section 106.37, Florida Statutes, is inapplicable, Respondent posits an argument that is consistent with the reasoning of the Recommended Order in Florida Elections Commission v. John J. Fugate, DOAH 04-1178 (December 22, 2004). There, the ALJ concluded that the definition of “willful neglect” contained in Section 106.37, Florida Statutes, did not apply to a violation arising under Chapter 104, Florida Statutes. ...
After concluding that the determination of “willfulness” is a question of fact, citing McGann v. Florida Elections Commission, 803 So. 2d 763 (Fla. 2001), the ALJ in Fugate reviewed various definitions of the term “willful” and concluded that the plain meaning of the term included an element of intent.
On June 26, 2006, in response to the Fugate opinion, the FEC entered a second Final Order in the DOAH Fugate case, wherein it vacated the Fugate FO entered June 3, 2005, and accepted all findings of fact and conclusions of law set forth by Judge Stevenson in his Recommended Order. The second Final Order entered by the FEC in the DOAH Fugate case is the FEC’s most recent pronouncement on the meaning of “willful” when the
term is referring to a violation of Chapter 104, Florida Statutes.
Unconstrained by the FEC’s prior decisions that used Section 106.37 as the standard for willfulness in Chapter 104 cases, the undersigned concurs with the analysis of the term “willful” set forth by Judge Stevenson in DOAH Case 04-1178.
The undersigned also concurs with the Fugate opinion’s characterization of Judge Stevenson’s definition of “willful” as being reasonable. The undersigned further concurs with the FEC’s second Final Order in the DOAH Fugate case wherein it accepted all findings of fact and conclusions of law set forth by Judge Stevenson in the Recommended Order he entered in that proceeding.
The undersigned has carefully considered the analysis set forth by the FEC in its pleading styled “Petitioner’s Memorandum Regarding Willfulness After Remand.” FEC urges that the standard for the term “willful” should be construed to include acts or omissions in “reckless disregard” of the official duties of an elected supervisor of elections. Under its analysis, FEC would not be required to prove the Respondent’s intent. The undersigned concludes that the FEC’s analysis is less persuasive than that set forth by Judge Stevenson in his Recommended Order in the DOAH Fugate case.
In reaching the foregoing conclusion, the undersigned is mindful that Section 104.051(2) is a penal statute. As such, the statute must be strictly construed so that no conduct is to be regarded as included within it that is not reasonably proscribed by it. See Lester v. Department of Professional and Occupational Regulation, 348 So. 2d 923, 925 (Fla. 1st DCA 1977). Any doubt as to conduct proscribed by the subject penal statute should be resolved against the FEC and in favor of the Respondent. See Whitaker v. Department of Insurance and Treasurer, 680 So. 2d 528, 531 (Fla. 1st DCA 1996) and Elmariah
v. Department of Professional Regulation, Board of Medicine, 574 So. 2d 164, 165 (Fla. 1st DCA 1990).
The FEC argues that it has filed a proposed rule, patterned on the definition of “willful” found in Section 106.37 and asserts that it is entitled to rely on that proposed rule in this proceeding. The FEC has no authority to adopt a rule that would broaden the scope of the subject penal statute so as to proscribe acts or omissions that were not proscribed by the penal statute prior to the enactment of the rule. See
§ 120.52(8)(c), Fla. Stat. (2006); Childers v. Department of Environmental Protection, 696 So. 2d 962, 964 (Fla. 1st DCA 1997); and Life Care Centers v. Sawgrass Care Center, 683 So. 2d 609, 613 (Fla. 1st DCA 1996). Such a broadening of the penal
statute is precisely what the FEC is attempting to accomplish by its proposed rule.
The undersigned agrees with Judge Stevenson’s conclusion that the plain meaning of the term “willful,” as used in the subject penal statute, includes an element of intent.
Specifically, the undersigned concludes that as used in Section 104.051(2), Florida Statutes, proof of an official’s “willful” refusal or “willful” neglect to perform his or her official duties requires clear and convincing evidence that the refusal or neglect was voluntarily performed with specific intent to violate or disregard the requirements of law.
The evidence presented by FEC at the formal hearing in this proceeding did not prove Respondent’s intent. Paragraph 61 of the RO entered in DOAH Case 04-1999 is as follows:
61. If it is determined that intent is an essential element of the offense proscribed by Section 104.051(2), Florida Statutes, as argued by Respondent, it must be concluded that Respondent is not guilty of the alleged offenses because Petitioner did not prove Respondent’s intent.
The undersigned finds that Respondent did not “willfully” refuse or neglect to perform her official duties in violation of Section 104.051(2), Florida Statutes, as alleged in the Order of Probable Cause entered by the FEC on February 24, 2004.
Based on the Findings of Fact and Conclusions of Law set forth above the undersigned recommends that the FEC enter a final order dismissing all charges against Respondent.
DONE AND ENTERED this 29th day of August, 2006, in Tallahassee, Leon County, Florida.
CLAUDE B. ARRINGTON
Filed with the Clerk of the Division of Administrative Hearings this 29th day of August, 2006.
1/ Unless otherwise noted, all statutory references are to Florida Statutes (2002).
Messer, Caparello & Self, P.A. Post Office Box 1876 Tallahassee, Florida 32302-1876
Eric M. Lipman, Esquire Florida Elections Commission Collins Building, Suite 224
Henry Hunter & Associates, Inc.
Kay Starling, Agency Clerk Florida Commission on Ethics 3600 Macclay Boulevard, South Suite 201
Bonnie J. Williams, Executive Director Florida Commission on Ethics
Philip C. Claypool, General Counsel Florida Commission on Ethics
Office of the Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050
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.
