The Issue Whether Marvin Couch, the Respondent, should be required to pay attorney's fees and costs to Linda Chapin, the Petitioner, pursuant to Section 112.317(8), Florida Statutes?
Findings Of Fact Linda Chapin's Public Office. Linda Chapin was elected to the Orange County Commission in November, 1990. Ms. Chapin ran for office as a Democrat. At all times relevant to this proceeding, Ms. Chapin served as Chairman of the Orange County Commission. Ms. Chapin was sworn in as a member of the Orlando-Orange County Expressway Authority (hereinafter referred to as the "Authority") on December 19, 1990. Ms. Chapin was automatically considered to be an ex-officio member of the Authority due to her position as Chairman of the Orange County Commission. Ms. Chapin's Treatment of Her Son's Employment with Greiner Engineering. In a letter dated December 18, 1990, Ms. Chapin informed the Chairman of the Authority that her son, Andrew Chapin, was employed by Greiner Engineering (hereinafter referred to as "Greiner"), as a project coordinator on the "Central Connector Interchange at I-4", a project of the Authority. In the December 18, 1990, letter to the Chairman of the Authority Ms. Chapin informed the Chairman that she had requested an opinion of the Orange County Attorney as to whether her son's employment and her public office might create any conflict of interest. A copy of an opinion from Harry A. Stewart, then Orange County Attorney, indicating no conflict of interest, was attached to the letter. The December 18, 1990, letter and the opinion of the Orange County Attorney were provided to the Authority at the meeting of the Authority held on December 19, 1990. Approval of Greiner for the project referenced by Ms. Chapin in her December 18, 1990, letter to the Chairman of the Authority had been approved by the Authority at an August 22, 1990, meeting of the Authority. Greiner was therefore approved by the Authority before Ms. Chapin was elected to the Orange County Commission and before she became an ex-officio member of the Authority. (Stipulated Fact). Ms. Chapin did not vote to retain the services of Greiner while sitting as a member of the Authority between December 19, 1990, and May 22, 1991 or at any other time. (Stipulated Fact). Ms. Chapin has voted on the payment of invoices submitted by Greiner to the Authority. (Stipulated Fact). Andrew Chapin was an employee of Greiner. Andrew Chapin did not, however, hold any position of control of Greiner. Nor did he own a material interest in Greiner. The May 9, 1991, Newspaper Article. On May 9, 1991, an article was printed in The Orlando Sentinel (hereinafter referred to as the "May 9th Article"). (Stipulated Fact). The article was printed under the title "Pignone's interest in connector questioned." The article, as the title suggests, discussed whether another member of the Orange County Commission, Fran Pignone, had a conflict of interest with an Orange County road project. The May 9th Article included the following statement concerning Ms. Chapin: And Chapin noted in her letter that she tries to "tread very carefully" because she sits on the agency proposing to build the road and her son Andrew works for an engineering firm that is designing one of the interchanges. Mr. Couch read the May 9th Article. Based upon the May 9th Article, Mr. Couch believed that Ms. Chapin may have been involved in some impropriety as a member of the Authority. (Stipulated Fact). Mr. Couch's Ethics Complaint. After reading the May 9th Article, Mr. Couch telephoned the Florida Commission on Ethics and requested complaint forms. On May 13, 1991, Mr. Couch filed a Complaint against Ms. Chapin (hereinafter referred to as the "Complaint") with the Florida Commission on Ethics. (Stipulated Fact). The Complaint contained the following allegations: Chairman Chapin violated Part III, Chapter 112, Florida Statutes by serving on the Orlando/Orange County Expressway Authority and voting to retain the services of an engineering company that employs her son as admitted by Chairman Chapin in Orlando Sentinel dated week of May 6-10th. The allegations in the Complaint were based solely upon the information contained in the May 9th Article. In particular, Mr. Couch relied upon the paragraph of the May 9th Article quoted in finding of fact 14. The May 9th Article does not support the allegations contained in the Complaint. The May 9th Article does not indicate that Ms. Chapin voted to retain Greiner. The May 9th Article suggests just the opposite. It is stated in the article that Ms. Chapin "tries to 'tread very carefully' . . ." because of her son's work for Greiner. At the time the Complaint was filed, Mr. Couch did not know when Ms. Chapin had become a member of the Authority or when Greiner was retained by the Authority. (Stipulated Fact). Although Mr. Couch was aware generally of when Ms. Chapin was elected to the Orange County Commission, Mr. Couch was unaware at the time he filed the Complaint when Greiner had been retained by the Authority. Mr. Couch made no effort to obtain information to substantiate his Complaint other than the May 9th Article. (Stipulated Fact). Mr. Couch's Press Release. Simultaneously with the filing of the Complaint, a document (hereinafter referred to as the "Press Release") was provided to several radio and television stations in Orange County, weekly newspapers and The Orlando Sentinel: At the top of the Press Release, the following heading appeared: "Orange County Republican Executive Committee". The heading was followed by an address and telephone number. It was indicated that Mr. Couch should be contacted "for further information" and his telephone number was listed. The Press Release was titled "Republican Party Files Ethics Complaints Against Chapin/Pignone." The Press Release indicated that Mr. Couch had filed complaints with the Florida Commission on Ethics against Ms. Chapin (and Ms. Pignone) and indicated: Orange County Chairman Linda Chapin is being charged with violating the Government in the Sunshine law by meeting with fellow Commissioner Fran Pignone privately and allegedly discussing county business and by serving on the Orlando/Orange County Expressway Authority and voting to retain the services of an engineering company that employs her son. The Press Release contained the following quoted statements from Mr. Couch: "These commissioners have betrayed the public trust by meeting behind closed doors without the benefit of their having either the public or the press present to protect our interests," stated Couch. "Linda Chapin voting for the firm that employs her son represents the very worst type of backroom, financial impropriety I have seen in some time," Couch continued. "We need a full and public investigation of these activities," Couch concluded. Although Mr. Couch appeared to have a difficult time during the final hearing remembering how the Press Release came into being, his deposition testimony and other evidence during the final hearing indicates that he created the first draft of the Press Release on a personal computer. The Press Release was then provided to a public relations consultant and political ally, Douglas M. Guetzloe, of Advantage Consultants, Inc. Mr. Guetzloe finalized and ultimately distributed the Press Release. The precise quotes from Mr. Couch contained in the Press Release were created by Mr. Guetzloe but were based upon general comments from Mr. Couch and were ultimately approved by Mr. Couch. The Press Release was prepared at the request, direction and with the approval of Mr. Couch. Mr. Couch was provided a copy of the Press Release for review before it was distributed. Mr. Couch approved the Press Release or it would not have been distributed. Mr. Couch directed that his name and telephone number be included on the Press Release. Mr. Couch also disclosed the filing of the Complaint with television stations (Channels 2, 6 and 9) in Orange County, radio station WDBO and The Orlando Sentinel. Mr. Couch's Purpose in Filing the Complaint. Mr. Couch testified that he filed the Complaint against Ms. Chapin because he was a concerned citizen who just wanted the proper authorities to check out Ms. Chapin's actions with regard to Greiner and determine if there were any improprieties. This testimony is not credible. Mr. Couch is the Chairman of the Republican Executive Committee in Orange County. He was elected to that position in February, 1991. Mr. Couch has been a member of the Republican Executive Committee since 1988. As characterized by Mr. Guetzloe, Mr. Couch was playing "adversarial politics". Mr. Couch, a Republican, filed the Complaint and issued the Press Release in an effort to criticize a member of the opposition party, a Democrat. Mr. Couch used the Commission for his political purposes, charging Ms. Chapin had committed a violation of Florida law, when there was no basis for his allegations. Mr. Couch was motivated because of his belief that Ms. Chapin was "getting too big for her britches". He believed that "something had to be done about it." Mr. Couch's actions evidenced a malicious intent to injure the reputation of Ms. Chapin. The Complaint was frivolous and without basis in law or fact. Legal Representation of Ms. Chapin and Disposition of the Complaint. The Orange County Attorney's office represented Ms. Chapin before the Commission. There was no written agreement between Ms. Chapin and Orange County concerning her representation by the Orange County Attorney. Mr. Wilkes, the Orange County Attorney at the time the Complaint was filed, determined that the charges against Ms. Chapin in the Complaint arose out of her position on the Orange County Commission. Mr. Wilkes made this determination based upon the fact that Ms. Chapin served on the Authority by virtue of Section 348.753, Florida Statutes, which provides that the Chairman of the Orange County Commission will serve as an ex officio member of the Authority. Mr. Wilkes also concluded that the actions complained of in the Complaint were actions which would have been taken in Ms. Chapin's official position. Based upon the conclusions described in finding of fact 38, Mr. Wilkes concluded that Ms. Chapin was entitled to representation by his office pursuant to Section 706 of the Orange County Code. Ms. Chapin made no request for this representation. Mr. Wilkes' conclusion was reasonable and, although Mr. Couch has questioned the propriety of Orange County providing representation for Ms. Chapin, the evidence on this question was unrefuted. On or about July 16, 1991, after Ms. Chapin received a copy of the Complaint, a Motion for Summary Judgment and Attorney Fees was prepared and filed with the Commission by the Orange County Attorney's Office. On September 18, 1991, the Commission entered a Public Report and Order Dismissing Complaint. Pursuant to this Order the Complaint was determined to be legally deficient and was dismissed. A Petition for Attorney's Fees and Costs dated October 14, 1991, was filed by the Orange County Attorney's Office on behalf of Ms. Chapin. Cost and Attorney's Fees Incurred. The Orange County Attorney at the time, Thomas J. Wilkes, and Joseph L. Passiatore, an Assistant Orange County Attorney, represented Ms. Chapin before the Commission. Ms. Chapin's attorneys performed research (factual and legal), reviewed and initiated correspondence, reviewed orders of the Commission, took the deposition of Mr. Couch and prepared and participated in the final hearing of this matter. Mr. Wilkes invested 22.9 hours through October 14, 1991, and 1 hour subsequent to October 14, 1991, representing Ms. Chapin in this matter. Through September 20, 1991, the date the order dismissing the Complaint was received, Mr. Passiatore invested 25 hours representing Ms. Chapin in this matter. Subsequent to September 20, 1991, Mr. Passiatore spent 20.5 hours through January 6, 1992, representing Ms. Chapin in this matter (preparing a draft of the Petition, conducting discovery and preparing for the final hearing of this case). Between January 6, 1992, and the date of the final hearing of this case, Mr. Passiatore spent 20 hours preparing for the final hearing. Ms. Chapin is seeking reimbursement for 22.9 hours of Mr. Wilkes' services and 45.5 hours of Mr. Passiatore's services. The 22.9 hours spent by Mr. Wilkes and the 45.5 hours spent by Mr. Passiatore in the defense of Ms. Chapin constituted reasonable amounts of time. Motions for summary judgement are neither specifically authorized by the Commission's rules nor prohibited. The filing of the motion for summary judgement was, however, prudent and reasonable in light of the frivolous nature of the Complaint and the potential harm to Ms. Chapin's reputation caused by the issuance of the Press Release. A reasonable hourly rate for Mr. Wilkes' and Mr. Passiatore's services to Ms. Chapin is $175.00 per hour. Based upon an hourly rate of $175.00 per hour, the 22.9 hours invested by Mr. Wilkes and the 45.5 hours invested by Mr. Passiatore would result in total attorney's fees of $11,970.00. Mr. Wilkes and Mr. Passiatore were not paid $175.00 an hour for their services. They received their normal salaries as the Orange County Attorney and an Assistant Orange County Attorney, respectively. Mr. Wilkes and Mr. Passiatore were paid their salaries during the time that they represented Ms. Chapin, and all costs associated with this matter were paid, out of the Orange County General Fund. Any recovery of attorney's fees and costs in this case will deposited in the Orange County General Fund. The evidence failed to prove what Mr. Wilkes' and Mr. Passiatore's salaries were. As of February 11, 1992, reasonable costs of $661.90 had been incurred by the Orange County Attorney's Office in defense of Ms. Chapin. If Ms. Chapin had been determined to have violated the law as alleged in the Complaint, she would have been required to reimburse Orange County for the cost incurred by Orange County in defending her. The evidence failed to prove that, at the time of the final hearing of this matter, Ms. Chapin was liable for or subject to any amount of attorney's fees or costs.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Commission on Ethics enter a Final Order dismissing the Petition for Attorney's Fees and Costs be DISMISSED. DONE and ENTERED this 11th day of May, 1992, in Tallahassee, Florida. LARRY J. SARTIN 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 11th day of May, 1992. APPENDIX TO RECOMMENDED ORDER The parties have submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted. Ms. Chapin's Proposed Findings of Fact Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection 1 4. 2 6. 3 7-8. 4 9. 5-6 10. 7 12. 8 17. 9 13, 18 and 22. 10 14 and 19. 11 19. 12 22. 13 20-21. 14 21. 15-16 Hereby accepted. 17 16. 18-21 Hereby accepted. 22 34. 23 24 and 27-28. 24 25. 25 27-29. 26 27-28. 27 29. 28 28. 29 23. 30 See 23e and 26. 31 Hereby accepted. 32 30. 33 Hereby accepted. 34 37. 35 40. 36 41. 37 42. 38 44-48. 39-40 45. 41 49. 42 46. 43 47. 44 48. 45 49. 46 51. 47 56. 48 Hereby accepted. 49 54. 50 54. Mr. Couch's Proposed Findings of Fact Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection 1 2. 2 4. 3 17. 4 41. 5 42. Not relevant to this proceeding. Not supported by the weight of the evidence. 8 37. COPIES FURNISHED: Virlindia Doss Assistant Attorney General Department of Legal Affairs The Capitol, Suite 101 Tallahassee, Florida 32399-1050 Joseph L. Passiatore Assistant Orange County Attorney Orange County Administration Center Post Office Box 1393 Orlando, Florida 32802-1393 Marvin Couch 974 Pinelli Street Orlando, Florida 32803 Bonnie J. Williams Executive Director Commission on Ethics The Capitol, Room 2105 Post Office Box 6 Tallahassee, Florida 32302-0006 =================================================================
The Issue Whether Petitioner, Grant Maloy, willfully violated Subsection 106.143(4)(a), Florida Statutes.
Findings Of Fact Petitioner, Grant Maloy, is a Seminole County Commissioner. In September 2000, as an incumbent Republican, he won the Republican primary for his commission district which, in Seminole County, is tantamount to election. In November 2000, he was reelected in the general election. In the same September 2000, primary election, Bob West ("West") was the top vote-getter in a three-way primary for Commission District 5 which included incumbent Commissioner Daryl McLain, who finished second. West did not have a majority of the votes; consequently, he and Daryl McLain were in an October second primary. West sought Petitioner's endorsement and, as a result, Petitioner authored a letter endorsing West over the incumbent Commissioner Daryl McLain, seeking campaign contributions for West. Petitioner's endorsement letter stated, in part, "Enclosed is a letter from Bob [West] and a return envelope for your contribution." The endorsement letter was typed by Petitioner's wife, Althea Maloy, on a personal computer. She created a letterhead similar to the Maloy campaign letterhead and, with the permission of Petitioner, signed "Grant" to the endorsement letter. The endorsement letter also contained the following political disclaimer: "PD POL ADV PAID FOR AND APPROVED BY THE GRANT MALOY CAMPAIGN FOR SEMINOLE COUNTY COMMISSION DIST 1, REPUBLICAN." West paid for all paper, envelopes and postage for the endorsement letter mailing. Althea Maloy and other campaign volunteers "stuffed" the endorsement letter and an undated letter from West into the envelopes provided by West. Petitioner's wife, Althea Maloy, was acting as a West campaign volunteer as it relates to her activities regarding the endorsement letter. The undated letter sent by West stated, in part, " . . . Commissioner Grant Maloy would like to join together with me to ask for your financial support in my bid to defeat Daryl McLain." This letter also contained the following political disclaimer: "Pd. pol. adv. approved by Bob West, Paid for by the campaign account of Bob West for County Commissioner, Dist 5, Rep." During the investigation, Respondent requested the envelope in which the endorsement letter and West's undated letter were mailed. The complainant faxed the envelope to the Respondent. The facsimile of the envelope received by Respondent did not contain a political disclaimer. West is a computer software consultant. He testified that every envelope used in his campaign was programmed to have an appropriate political disclaimer on its face; he testified that the envelope used for the endorsement mailing was a oversized envelope. He opined that the facsimile copy of the envelope received by Respondent was too large for the fax machine and, therefore, the political disclaimer did not copy or was turned under to allow transmission and, as a result, was not copied. This testimony is accepted as credible. Mrs. Phyllis Hampton, General Counsel, Florida Elections Commission, was qualified as an expert witness on Florida elections law. Mrs. Hampton opined that Subsection 106.143(4)(a), Florida Statutes, would be satisfied if either the envelope in which the letters were sent contained the appropriate political disclaimer or the September 11, 2000, endorsement letter was sent with another letter which contained the appropriate political disclaimer. Her testimony is accepted as credible. Other than his support, as reflected in the endorsement letter, Petitioner contributed nothing of value to the West campaign. On April 28, 1999, Petitioner signed a Statement Of Candidate indicating that he had received, read, and understood Chapter 106, Florida Statutes. Petitioner knew his endorsement letter would be mailed with a West letter as reflected by the reference to the West letter in the endorsement letter and, therefore, believed that the sponsor of the letter would be clear to the recipient. Petitioner believed that West would ensure compliance with in Chapter 106, Florida Statutes, and had a "good faith" belief that Chapter 106, Florida Statutes, had been complied with.
Recommendation Based upon the foregoing Findings of Facts and Conclusions of Law, it is recommended that the Florida Elections Commission enter a final order finding that Petitioner, Grant Maloy, did not violate Subsection 106.143(4)(a), Florida Statutes, as alleged and dismissing the Order of Probable Cause. DONE AND ENTERED this 4th day of October, 2001, in Tallahassee, Leon County, Florida. JEFF B. CLARK 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 4th day of October, 2001. COPIES FURNISHED: Eric M. Lipman, Esquire Florida Elections Commission The Capitol, Room 2002 Tallahassee, Florida 32399-1050 Frederick Nelson, Esquire The Law Offices of Frederick H. Nelson 1110 Douglas Avenue, Suite 1002 Altamonte Springs, Florida 32714 Barbara M. Linthicum, Executive Director Florida Elections Commission The Capitol, Room 2002 Tallahassee, Florida 32399-1050 Patsy Rushing, Clerk Florida Elections Commission The Capitol, Room 2002 Tallahassee, Florida 32399-1050
The Issue Whether Petitioner may be granted an exemption from employment disqualification, pursuant to Section 435.07(3), Florida Statutes, which would allow him to work in a position of special trust (i.e. youthful offender counseling) for the Department of Juvenile Justice.
Findings Of Fact On February 16, 1999, a request for a Preliminary Florida Criminal Information Center/National Criminal Information Center (FCIC/NCIC) and Division of Highway Safety and Motor Vehicle (DHSMV) Screening Check was submitted on behalf of Petitioner by Dawn Torres of Youth Service International, Cypress Creek Academy. The screening package contained an Affidavit of Good Moral Character signed by Petitioner and notarized on January 11, 1999, in which Petitioner indicated that he did not have a disqualifying criminal history. There is every reason to believe that this affidavit was actually signed by Petitioner on January 8, 1999, at the same time he signed a consent to background screening and a job application which described a prior "misdemeanor" of assault on an ex-girlfriend. (Respondent's Composite Exhibit 1). This means the affidavit was notarized improperly. Cypress Creek Academy is a youth rehabilitation facility located in LeCanto, Florida. On February 19, 1999, Petitioner's preliminary screening was rated as "favorable" based upon an FCIC (Florida) check only. Petitioner was therefore employed by Cypress Creek Academy on April 12, 1999. (Petitioner's Exhibit 1). An FBI Identification Record dated May 9, 1999, indicated Petitioner had pled guilty to, and been found guilty of, assault on June 30, 1994, and that he had been sentenced to six months' jail time (suspended), 12 months' probation, and attendance at the Mens' Anger Program. In a letter dated May 17, 1999, Petitioner was asked by DJJ to provide, within 30 days of receipt of the letter, certified copies of arrest reports and judicial dispositions referencing the assault charge. Petitioner submitted the requested information to DJJ. It showed that Petitioner was arrested on June 3, 1994, by the Fairfax, Virginia, Police Department for abduction and assault and battery on a minor (17 years of age). On June 30, 1994, Petitioner pled guilty to assault and battery in the Fairfax County, Virginia, Juvenile and Domestic Relations District Court and was then found guilty. He was sentenced to a six months' jail sentence (suspended) and 12 months' active probation; ordered to attend the Mens' Anger Program; and instructed to have "no violation towards victim." A Show Cause Summons (Criminal) was issued by Fairfax County, Virginia, on June 23, 1995, to Petitioner concerning his failure to attend the Mens' Anger Program and his failure to contact his probation officer from September 26, 1994, to March 20, 1995. On September 21, 1995, the Fairfax County, Virginia, Juvenile and Domestic Relations District Court found Petitioner guilty of contempt based upon his plea of guilty. He was sentenced to a jail term of 60 days (with 57 days suspended), placed on probation for an additional 12 months, and again ordered to attend the Mens' Anger Program. By departmental letter of June 22, 1999, DJJ notified Petitioner of his ineligibility for continued employment and his right to request a departmental exemption hearing. Simultaneously, Cypress Creek Academy was notified that Petitioner was ineligible/disqualified from employment as a youth counselor and that he must be immediately removed from direct contact with juveniles. However, according to Petitioner's evidence presented at hearing, Petitioner only worked at Cypress Creek Academy from April 12, 1999, until June 3, 1999. (Petitioner's Exhibit 1). Also, the Academy's director was unable to assess Petitioner's performance fully, since he had worked there less than two months, but the director felt Petitioner would be an asset, and if exempted, that Petitioner would be eligible for rehire. (Petitioner's Exhibit 1). Petitioner timely requested an exemption, which was denied by DJJ. He then timely requested this disputed-fact hearing. The circumstances surrounding the June 3, 1994, incident giving rise to disqualification were described by Petitioner as follows: In 1994, Petitioner, who was barely 21 years old, was living with his 17-year-old girlfriend and her mother. He and the girlfriend got into a dispute and she kicked him in the stomach. He instinctively lashed out and hit her, even though intellectually, he knew it was wrong to hit a woman. Petitioner believed that his girlfriend also should have been criminally charged, but that did not happen. Petitioner claimed that although his girlfriend bailed him out of jail and wanted to drop the charges, his public defender made him plead guilty against his own better judgment. Petitioner maintained that his "instinctive" reaction to hit back was due to having been a battered child. His sister confirmed a dysfunctional and abusive family history. Petitioner's NCCI report does not reveal any criminal charges against Petitioner since 1994. Petitioner completed the Mens' Anger Program in Virginia as of June 26, 1996, pursuant to the Court's 1995 suspended sentence, by attending 22 out of 24 sessions. His only excuse for his delay in attending this program (see Finding of Fact 10, above) was that he was trying to straighten himself out. Petitioner testified that he has completed his probation in Virginia, but he presented no corroboration thereof, either from his probation officer or from any other Virginia authority. This defect in Petitioner's presentation is of concern because he has had nearly 10 months since the exemption process began in which to obtain these records, if they exist. Petitioner denied that he attempted to camouflage his prior criminal record from either Cypress Creek Academy or DJJ. He reasonably pointed-out that if he had been actively attempting to hide his prior criminal record when he signed the January 11, 1999, affidavit stating that he had no prior criminal record, he would not also have signed a consent to background screening on January 8, 1999 and on the same date disclosed the details of the assault on his ex-girlfriend to his potential employer, describing it as a misdemeanor. (Respondent's Composite Exhibit 1). I have weighed the fact that Petitioner is a high school graduate who has completed one year of college (Respondent's Exhibit 1) against his representation that he just did not read the good moral character affidavit he signed, and I have compared the lengthy and complex single-spaced disclosure forms involved, including the affidavit, which lists a variety of felonies by their Florida Statute numbers. I have also considered the detail of Petitioner's disclosure of the facts of the assault but mischaracterization of it as a "misdemeanor" rather than a felony. I accept that Petitioner's failure to disclose that his prior criminal history in Virginia was a disqualifying felony was careless and irresponsible rather than a deliberate attempt to conceal his criminal record from the employer and DJJ. On the other hand, his carelessness and lack of responsibility with regard to the affidavit/oath do not speak favorably for his current good character when it applies to a position of counseling young offenders. Since 1995, Petitioner has married and fathered a child. Since leaving Virginia, Petitioner has worked as a security guard in Reno, Nevada, dealing with cash, personal safety of casino patrons, and safety of patrons' vehicles. Currently, Petitioner is a regular church-goer and is working 52 hours a week to support his family. Petitioner's wife testified that he is non-violent toward her, even if she hits him; that he "scares me because he's so religious"; that she gets mad because he does so much for others; and that he is a "real caring person" and a "good father." Petitioner's sister testified to Petitioner's being entirely non-violent since he became a church-goer.
Recommendation Upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Juvenile Justice enter a final order denying Petitioner an exemption at this time and clearly stating therein upon what date it will consider a new application for exemption. DONE AND ENTERED this 30 day of May, 2000, in Tallahassee, Leon County, Florida. ELLA JANE P. DAVIS 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 30th day of May, 2000.
The Issue The issues are whether Respondent accepted campaign contributions and made expenditures before designating a campaign treasurer and campaign depository, signed a check without sufficient funds written on a campaign account with insufficient funds to cover the check, and accepted a campaign contribution in excess of the legal limit in violation of Subsections 106.021(1)(a), 106.11(4), and 106.19(1)(a), Florida Statutes (2005).1
Findings Of Fact Petitioner is the state agency responsible for enforcing the campaign laws of the state. During 2006, Respondent attempted, unsuccessfully, to qualify as a candidate for the United States Congress and then campaigned for election to the state Legislature. Sometime in 2006, Respondent attempted to qualify as a candidate for the United States House of Representatives, District 12. On May 15, 2006, Respondent accepted two checks from Mr. Kent Lilly, an attorney in Bartow, Florida. One check was a campaign contribution of $500.00. Mr. Lilly intended the other check to be a loan of $5,000.00. Although the loan from Mr. Lilly satisfied the definition of a campaign contribution in Subsection 106.011(3)(a), Mr. Lilly and Respondent understood that Respondent was to repay the loan from subsequent campaign contributions. Respondent learned by letter dated May 18, 2006, that he did not qualify as a candidate for federal office because the qualifying papers he filed did not contain an original signature. Respondent decided to campaign as a candidate for the Florida House of Representatives, District 63. Respondent retained the campaign funds contributed by Mr. Lilly in a bank account divided into two sub-accounts. The two sub-accounts are identified in the record as the Sub 1 and Sub 2 accounts. The Sub 1 account contained funds collected for the Congressional campaign, and the Sub 2 account contained funds collected for the state legislative campaign. Respondent did not designate a campaign treasurer and depository for the state legislative campaign until July 19, 2006. Respondent signed the Appointment of Campaign Treasurer and Designation of Campaign Depository for Candidates (the DS-DE 9) form on July 5, 2006. The DS-DE 9 form designated Ms. Shirley Goodwine as the campaign treasurer. Respondent filed the DS-DE 9 form with the state’s Division of Elections on July 13, 2006. The original DS-DE 9 form was insufficient. The original form did not include the name of the political office sought and the date of Ms. Goodwine’s signature. Respondent filed an amended DS-DE 9 form on July 19, 2006. The amended form corrected the errors in the original form and was sufficient to designate a campaign treasurer and depository for state office. On July 6, 2006, Respondent accepted a contribution to his Sub 2 account before designating a campaign treasurer and depository. Respondent transferred $2,000.00 from the Sub 1 account to his Sub 2 account. The funds came from the loan from Mr. Lilly. The $2,000.00 contribution was excessive, within the meaning of Subsection 106.19(1)(a). It exceeded the maximum allowable contribution of $500.00 by $1,500.00. On July 12, 2006, Respondent expended $16.80 from his Sub 2 account before designating a campaign treasurer and depository. The charge to his account in the amount $16.80 was for checks to be used on the account. On July 18, 2006, Respondent signed a check in the amount of $1,859.76, which was drawn on the Sub 2 account. Insufficient funds were available to cover the check. The check was payable to the state Division of Elections and was intended to pay the qualifying fee to run for state office. On July 22, 2006, Respondent signed a check drawn on the Sub 2 account without sufficient funds. The check was payable to Publix Supermarket for $100.00. Respondent has a prior disciplinary history. Petitioner previously fined Respondent for filing campaign treasurer reports late. Respondent has not paid the previous fines. Respondent reports his net worth to be $103,000.00. Respondent has not repaid the loan from Mr. Lilly. Respondent submitted no evidence of mitigating factors that may have reduced the fine proposed by Petitioner. Respondent committed the foregoing acts willfully within the meaning of former Section 106.37, which was in effect at the time Respondent committed the acts. Respondent committed the acts with reckless disregard for whether the acts were prohibited by relevant campaign laws of the state.
The Issue The issue is whether Respondent attempted to obtain his license to practice medicine by fraudulent representations, in violation of Section 458.331(1)(a), Florida Statutes, or if Respondent misrepresented or concealed a material fact during any phase of a licensing or disciplinary process, in violation of Section 458.331(1)(gg), Florida Statutes. If so, an additional issue is what penalty the Board of Medicine should impose.
Findings Of Fact By application dated and acknowledged on December 27, 1993, Respondent applied for a medical license by endorsement. Respondent filed the application with the Board of Medicine on January 12, 1994. Question 6 on the application asks: Have you ever been convicted of a felony? Yes No ; a misdemeanor? Yes No . Have any judgments ever been entered against you? Yes No . Have you ever been sued for malpractice? Yes No . In response, Respondent typed X’s in the “No” boxes for the first two questions in Question 6. Immediately above the signature of Respondent and acknowledgement of the notary public, on the last page of the application, is the statement: I have carefully read the questions in the foregoing application and have answered them completely, without reservations of any kind, and I declare under penalty of perjury that my answers and all statements made by me are true and correct. Should I furnish any false information in this application, I hereby agree that such act shall constitute cause for denial, suspension or revocation of my license to practice medicine/surgery in the State of Florida. In fact, on October 24, 1988, Respondent was found guilty, after a three-day jury trial, of 12 misdemeanor counts of failure to remit a total of over $47,000 in state sales taxes due from November 20, 1985, through December 20, 1986. On December 22, 1988, the court sentenced Respondent to pay a fine of $12,000 on all 12 counts and reasonable court costs, and serve six months’ probation on each of the 12 counts, with the periods of probation to run consecutively. Respondent’s explanation for the omission from the application is that he mistakenly believed that the only misdemeanors covered by the question were those involving the practice of medicine. Respondent’s explanation for the nondisclosure is unreasonable. Nothing in the language of Question 6 limits the scope of the inquiry to misdemeanors involving the practice of medicine. The preceding question in Question 6 asks about felonies without qualification or limitation, and it is absurd to interpret this question as not asking about any felony, such as bank robbery, even though the felony did not involve the practice of medicine. For the same reason, Respondent knew that he was to have disclosed any misdemeanor, even if it did not involve the practice of medicine. Respondent’s explanation for the commission of the crimes is more plausible. Briefly, Respondent testified that he had invested about $100,000 of the total of $250,000 in the acquisition of the Philadelphia franchise of long-distance telephone provider that had emerged immediately following the breakup of AT&T in the mid 1980s. Essentially reselling AT&T long-distance services, the new company paid AT&T at wholesale for the services that it marked up and sold at retail to end users. Respondent explained that he had been an absentee owner for much of the time. Also, the AT&T billing for this new arrangement was confused and irregular. Changes in ownership preceding and following Respondent’s investment in the company further complicated the situation. A Pennsylvania revenue auditor contacted Respondent over a year after he had sold his stock in the company in 1986, gotten married, and been traveling extensively out of state. At this time, Respondent learned of the company’s sales tax problems, which involved a complicated telecommunications excise tax. Respondent’s corporate purchaser was no longer operating the company, which had become bankrupt. Respondent paid the taxes due, but the Commonwealth of Pennsylvania nevertheless prosecuted him for his role in the failure of the company to pay its taxes. After sentencing, Respondent paid the fine and served his probation without incident. He disclosed the misdemeanor convictions to the Pennsylvania agency regulating the practice of medicine and was able to continue practicing medicine there. After consideration of Respondent’s application, the Florida Board of Medicine issued Respondent license number ME 0066606.
Recommendation It is RECOMMENDED that the Board of Medicine enter a final order dismissing the Administrative Complaint against Respondent. DONE AND ENTERED this 4th day of December, 2000, in Tallahassee, Leon County, Florida. ROBERT E. MEALE 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 4th day of December, 2000. COPIES FURNISHED: Tanya Willaims, Executive Director Board of Medicine Department of Health 4052 Bald Cypress Way Bin C03 Tallahassee, Florida 32399-1701 William W. Large, General Counsel Department of Health 4052 Bald Cypress Way Bin A02 Tallahassee, Florida 32399-1701 Theodore M. Henderson, Agency Clerk Department of Health 4052 Bald Cypress Way Bin A02 Tallahassee, Florida 32399-1701 Kim M. Kluck Carol Gregg Senior Attorneys Agency for Health Care Administration Post Office Box 14229 Tallahassee, Florida 32317-4229 Christopher Grillo 1 East Broward Boulevard, Suite 700 Fort Lauderdale, Florida 33301
Findings Of Fact Petitioner and the Florida Elections Commission are responsible for enforcing Chapter 106, Florida Statutes. In 1993, Respondent qualified as a candidate for re- election to Seat Five of the Tallahassee City Commission. She was defeated for this office in the general election on February 22, 1994. On December 27, 1993, Respondent signed a Statement of Candidate indicating that she had received, read and understood the requirements of Chapter 106, Florida Statutes, as required by Section 106.023, Florida Statutes. Respondent has run for public office on four different occasions. Respondent's 1994 campaign staff was made up of volunteers. Some of these volunteers were supporters who had worked in her prior campaigns. Others were supporters who were participating in a political campaign for the first time. In the early days of the campaign, Respondent met with her supporters at weekly campaign committee meetings. As time went on, Respondent's employment and campaign schedule prevented her from attending these meetings. She also found it increasingly difficult to spend much time at her campaign headquarters. In 1994, Respondent used the same system she had used in prior campaigns for registering the names, addresses and telephone numbers of supporters for purposes of organizing the campaign. These cards included a check-list of jobs for which a campaign worker could volunteer. The cards also had a signature line for volunteers who were willing to publicly support Respondent. The cards did not contain a place to indicate the date of the signature. Respondent's campaign headquarters was initially staffed entirely by part-time volunteers including, but not limited to, Vivian Pelham. As a result, the card filing system became disorganized. In many instances, there were duplicate cards for campaign supporters. Some of the cards were misplaced or lost as they were in constant use for campaign work in the neighborhood. In mid-January, Chuck Cyrus began working at Respondent's campaign headquarters on a full-time basis. He unsuccessfully attempted to organize the card filing system. At the conclusion of the campaign, all of the cards that could be located were stored along with other campaign records. On or before January 6, 1994, Respondent's staff decided to prepare a flyer for circulation at a Council of Neighborhood Associations (CONA) meeting. Respondent's husband, Jim Crews, instructed Vivian Pelham and other part-time workers to make telephone calls to people to verify approval of the use of their names on the flyer prior to its distribution. Ms. Pelham did not search for signature cards before she called people because she did not think about it. In retrospect, Ms. Pelham knew it was necessary to have signatures of people willing to publicly support Respondent. However, Ms. Pelham did not know that endorsers had to sign cards at any particular time. She was not aware of a difference between "written" and "verbal" approval before a candidate may use a person's name in a campaign advertisement. Rather, Ms. Pelham thought specific "verbal" approval was better than "written" approval as long as an endorser signed a card at some point in time. One of the people Respondent's staff contacted by phone was Dennis Murphy. Mr. Murphy refused to allow the use of his name on the flyer. Consequently, Respondent's staff did not include him as an endorser on the campaign advertisement. The flyer ultimately contained the names of twenty-two "neighborhood leaders" who endorsed Respondent's candidacy. The flyer listed the neighborhood of each person under their name. The following disclaimer was located at the bottom of the flyer: The above individuals are current or past officers in their neighborhood associations. This document does not represent an endorsement by the Council of Neighborhood Associations nor any individual neighborhood group. This is a paid political advertisement paid for by the campaign treasurer. There is no competent persuasive evidence that the flyer, read in its entirety, misrepresented the personal endorsement of the people named therein as an endorsement by a particular neighborhood group. The only names included on the flyer which are at issue here are Sterling and Rosemarie Bryant and Dorothy Rose. Mr. and Mrs. Bryant were long- time supporters of Respondent. They worked in Respondent's 1994 and previous campaigns. Ms. Rose supported Respondent in 1994 but was not actively involved in the campaign. At the time Respondent circulated the subject flyer, neither the Bryants nor Ms. Rose had signed a 1994 campaign card stating that they were willing to publicly endorse Respondent. Mr. Bryant did not remember receiving a call about the flyer prior to January 6, 1995. However, Ms. Rose did receive such a call. On the evening of January 6, 1994, Respondent arrived at the CONA meeting just before it convened where she reviewed the flyer for the first time. Respondent recognized the name of each person listed on the flyer as a past and/or current supporter. She had no reason to doubt whether the people listed had signed a 1994 campaign card prior to her staff's preparation of the flyer. The document was circulated at the meeting to about thirty-five (35) people, many of whom were listed on the campaign advertisement. Dennis Murphy was present at the January 6, 1994, CONA meeting. He did not see the flyer at that time. Days later Mr. Murphy became aware of the flyer. He went to Respondent's campaign headquarters and got a copy of it. On January 14, 1995, Mr. Murphy filed a sworn complaint with Petitioner alleging that Respondent had violated Section 106.143(3), Florida Statutes. He filed the complaint because he thought Respondent failed to get proper authorization to use the names of the people listed on the flyer. Soon thereafter, Respondent's staff learned about the complaint informally. Jim Crews instructed Vivian Pelham and other campaign workers to locate signature cards for each person listed on the flyer. If a card could not be located, the workers were to call the people and get a duplicate. No one on Respondent's staff advised her about the rumored complaint. Several campaign workers began looking for signature cards. Vivian Pelham could not find a card for Sterling Bryant and called him. Because the Bryants were elderly, Ms. Pelham went to their home where Mr. and Mrs. Bryant signed a card. Ms. Pelham's testimony that she specifically requested the Bryants' signature relative to the flyer and not a subsequent newspaper advertisement is more persuasive than Mr. Bryant's testimony to the contrary. The subsequent newspaper advertisement, published on January 27, 1994, included a picture of Respondent with several neighborhood leaders, including the Bryants. Petitioner sent a letter dated January 19, 1994, to Mr. Murphy informing him that it had initiated an investigation of his complaint. Petitioner's letter to Mr. Murphy also requested information concerning the issue of "willfulness." That same day, Petitioner sent Respondent a letter, by regular United States Mail, enclosing a copy of the complaint. This letter gave Respondent the opportunity to submit a response in the form of a sworn statement. Respondent's staff received the letter on her behalf but did not bring it to her attention or respond to it in any way because they thought cards were available for each of the people listed on the flyer. Petitioner sent Respondent a second letter dated February 21, 1994. This letter was sent certified mail, return receipt requested. Respondent was in her headquarters when the letter arrived on February 23, 1994. She learned about the complaint for the first time when she signed for the letter. Respondent immediately located Petitioner's first letter and initiated a search of her records for the cards in question. Respondent was able to locate a card for everyone listed on the flyer except Dorothy Rose. Consequently, Respondent called Ms. Rose and went to her home where she obtained Ms. Rose's signature on a card. Respondent thought she was obtaining a duplicate card for Ms. Rose. During her 1994 campaign, Respondent continued to work as Mayor and City Commissioner of Tallahassee, Florida. She also worked full-time for Florida State University School in various administrative positions. Because of the demands of her schedule, she relied on her family, friends and volunteers to run her campaign. On the day before the primary, Respondent became ill and was hospitalized due to the intense stress of the campaign and pressure associated with her employment. In a letter to Petitioner dated February 24, 1995, Respondent denied the allegations in the complaint and enclosed copies of signature cards for the people listed in the flyer. The cards did not have dates to indicate when Respondent's supporters signed them. By letter dated June 28, 1994, Petitioner requested Respondent to furnish dates for the signatures and the names of the campaign workers who solicited the signatures. Respondent was unable to furnish this information because it was unavailable. With the exception of Ms. Rose's signature card, Respondent did not know when the cards were signed or which of the cards in her possession might have been duplicates of lost or misplaced cards. She was still under the impression that Ms. Rose's card was a duplicate. C. L. Ivey investigated the complaint for Petitioner. He randomly selected approximately twelve (12) people from the list of names on the flyer and contacted as many of them as he could reach. Most of them could not remember when they signed the cards. No one expressed an objection to Respondent's use of their name. Mr. Ivey subsequently deposed several of Respondent's supporters including Sterling Bryant and Dorothy Rose. The only cards they remembered signing in 1994 were executed after January 6, 1994. Mr. Bryant had not seen the subject flyer before Petitioner deposed him. He would have preferred to see a stronger disclaimer than the one at the bottom of the flyer. In 1994, Mr. Bryant was president of his neighborhood association and did not want to give the impression that the association endorsed a particular candidate. However, he did not object to Respondent publicly representing that he personally endorsed her candidacy. Respondent did not willfully violate Section 106.143(3), Florida Statutes. Neither she nor her campaign staff were aware that the Bryants and Ms. Rose had not signed a card prior to distribution of the flyer. To the contrary, Respondent and her staff knew that each of the people listed on the flyer were Respondent's past and/or current supporters. Their failure to ensure that they had a signature card on file for each person was at most simple negligence. The actions of Respondent and her staff after they learned about the complaint were not motivated by a desire to circumvent the election code. At all times, Respondent and her staff attempted to conduct themselves within the letter of the law. After the election, it was not reasonable to expect Respondent to know when the endorsers signed the cards because they were not dated. There is no competent persuasive evidence that Respondent received an unfair advantage by publishing the flyer without the prior written approval of the Bryants and Ms. Rose. Moreover, there is no competent persuasive evidence that distribution of the flyer resulted in harm to any person. The Bryants and Ms. Rose continue to espouse their friendship and support for Respondent. It did not become clear that the Bryants and Ms. Rose had not timely signed a signature card until after Petitioner completed its investigation. By then, Respondent had no effective means to remedy the situation.
Recommendation Based on the above referenced findings of fact and conclusions of law, the undersigned recommends that the Florida Elections Commission enter a Final Order finding that the Respondent did not willfully violate Section 106.143(3), Florida Statutes and dismissing the charges against her. RECOMMENDED this 14th day of June, 1995, in Tallahassee, Leon County, Florida. SUZANNE F. HOOD, Hearing Officer Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 14th day of June, 1995. APPENDIX The following constitutes the undersigned's specific rulings on the parties' proposed findings of fact pursuant to Section 120.59(2), Florida Statutes. Petitioner's Proposed Findings of Fact Accepted in Findings of Facts (FOF) number 1. Accepted in FOF number 2. Accepted in FOF number 13. Accepted in FOF numbers 12-13. Accepted in FOF numbers 10 and 14 as modified therein. Accepted in FOF numbers 17-18. Accepted in FOF numbers 5 and 21. Accepted in FOF number 22. Accepted in FOF numbers 23-24. Accepted as modified in FOF 6 & 15. Accepted in FOF numbers 12, 16, and 24-25. Rejected. See FOF numbers 16 and 25. Accepted as modified in FOF numbers 12 and 19. Accepted in FOF 3-4. Respondent's Proposed Findings of Fact Respondent did not number her proposed findings of facts. They are included in her proposed recommended order on page 1 through the first whole paragraph of page 6. The undersigned accepts all of Respondent's proposed findings of facts in substance as modified in FOF numbers 1-29 of this Recommended Order except: Mr. Murphy's political opposition to Respondent is not relevant; (2) Reference to any conversation between Mr. Murphy and a Mr. Fulford is uncorroborated hearsay; (3) Mr. Murphy's reason for not reporting the alleged violation to the Leon County Supervisor of Elections is not relevant; and (4) Reference to any newspaper articles that Petitioner's investigator relied upon is not relevant and uncorroborated hearsay. COPIES FURNISHED: David R. Westcott, Esq. The Capitol, Room 2002 Tallahassee, FL 32399-0250 Robert Augustus Harper, Esq. P. O. Box 10132 Tallahassee, FL 32302-2132 Honorable Sandra B. Mortham Secretary of State The Capitol Tallahassee, FL 32399-0250 Don Bell, Esq. Dept. of State The Capitol, PL-02 Tallahassee, FL 32399-0250
The Issue There are seven alleged violations at issue, six of which are related to alleged financial disclosure violations. As stipulated by the parties, at issue is whether Respondent violated: Section 112.313(6), Florida Statutes,1/ by requesting and/or accepting State reimbursement for travel expenses that were paid by campaign accounts and/or State office expense accounts; Article II, section 8, Florida Constitution, by failing to or not properly reporting income; and/or stocks and bonds; and/or secondary source income on his 2005 CE Form 6, Full and Public Disclosure of Financial Interest; Article II, section 8, Florida Constitution, by failing to or not properly reporting income; and/or stocks and bonds; and/or bank accounts; and/or real property; and/or secondary source income on his 2006 CE Form 6, Full and Public Disclosure of Financial Interest; Article II, section 8, Florida Constitution, by failing to or not properly reporting income; and/or stocks and bonds; and/or bank accounts; and/or real property; and/or secondary source income on his 2007 CE Form 6, Full and Public Disclosure of Financial Interest; Article II, section 8, Florida Constitution, by failing to or not properly reporting income; and/or stocks and bonds; and/or bank accounts; and/or real property; and/or secondary source income on his 2008 CE Form 6, Full and Public Disclosure of Financial Interest; Article II, section 8, Florida Constitution, by failing to or not properly reporting income; and/or stocks and bonds; and/or bank accounts; and/or real property; and/or secondary source income on his 2009 CE Form 6, Full and Public Disclosure of Financial Interest; and Section 112.3144, Florida Statutes, by failing to file a CE Form 6F “Final Full and Public Disclosure of Financial Interests” within 60 days of leaving his position with the Florida House of Representatives.
Findings Of Fact Based upon the testimony and documentary evidence presented at hearing, the demeanor and credibility of the witnesses, and on the entire record of this proceeding, the following findings of fact are made: Background At all times material to the Complaint, Respondent was a public officer. Respondent no longer holds public office. Respondent successfully ran for the Florida House of Representatives in 2002, 2004, 2006, and 2008. Respondent briefly ran for election to the Florida Senate in 2010 and opened a campaign account for that purpose. Respondent successfully ran for U.S. House of Representatives in 2010, but was defeated in 2012 for re- election. Respondent also ran for State Committeeman, a private, political party office of the Republican Party of Florida, in 2003, 2004, and 2008, and opened campaign accounts for that purpose. State Reimbursement for Travel Expenses that were Paid from Respondent's Campaign Accounts or State Office Expense Accounts The State of Florida allows reimbursement to employees and elected officials for travel and related expenses incurred during the conduct of official state business. Such expenses include, among other things, airfare, rental cars, hotels, and meals while travelling. The Florida House of Representatives' Office of Legislative Services is responsible for reviewing and approving expense reimbursements for members of the Florida House of Representatives. Respondent's state travel expenses were reimbursed by the Office of Legislative Services when he served as a member of the Florida House of Representatives from 2002- 2010. Kelly Kimsey, at the time a Senior Crime Intelligence Analyst II with the Public Corruption Unit of the Florida Department of Law Enforcement (FDLE), testified that she conducted the forensic analysis for this case utilizing financial records subpoenaed from financial institutions. In doing so, Ms. Kimsey analyzed Respondent's personal bank accounts, as well as his campaign accounts, and compared them against his campaign records. Ms. Kimsey created a summary showing Respondent's Bank of America campaign accounts ending in 1626, 9269, and 0856. The account statements, as well as the actual cancelled checks, reflect payments directly from the campaign accounts to Respondent’s credit card accounts, in payment of the full balance due on Respondent's personal credit cards. Notwithstanding the fact that Respondent had several credit cards, including a Chase Visa, American Express, and U.S. Senate Federal Credit Union Visa Gold, Respondent did not pay for expenses relating to his official duties as a state representative on a designated credit card. Rather, Respondent testified that his personal expenses, political party expenses, state house campaign expenses, and state house official expenses were all comingled among all of his credit cards “because the Florida House of Representatives does not issue credit cards.” On twenty-nine separate occasions throughout the period at issue, Respondent requested and received State of Florida direct-deposit reimbursement into his personal bank account for travel that was paid for by one of his campaign accounts, either his official campaign account or his committeeman account. The total reimbursement Respondent improperly received in this manner totaled tens of thousands of dollars. Three such examples follow. Respondent requested reimbursement of $622.90 for official state travel in March of 2006. Respondent's travel expenses were charged to his Chase credit card. The Chase credit card balance, which included the travel expenses, was paid for by Respondent's Campaign account numbered 1626. The State paid $622.90 for that travel into Respondent's personal bank account. Respondent requested reimbursement of $738.59, also for travel in March of 2006. Respondent's travel expenses were charged to his U.S. Senate Federal Credit Union credit card. The U.S. Senate Federal Credit Union credit card balance, which included the travel expenses, was paid by Respondent's Campaign accounts numbered 9269 and 1626. The state paid $738.59 for that travel into Respondent's personal bank account. Respondent requested reimbursement of $1,692.32 for official state travel in December of 2008. Respondent's travel expenses were charged to his American Express credit card. The American Express credit card balance, which included the travel expenses, was paid by Respondent's Campaign account numbered 9269. The state paid $1,692.32 for that travel into Respondent's personal bank account.2/ The Advocate established by clear and convincing evidence that Respondent received State of Florida reimbursement for travel and related expenses that were in fact paid for by one of his campaign accounts. Thus, Respondent was reimbursed for tens of thousands of dollars of expenses which he did not “incur.” The evidence also clearly and convincingly established that this double-reimbursement was knowing and intentional, since Respondent himself authorized the travel-related credit card charges, and then subsequently personally drafted the campaign account checks used to pay off the credit card balances. He also personally signed and submitted the State of Florida reimbursement requests. The amounts reimbursed by the State of Florida for travel-related expenses that were paid by Respondent’s campaign accounts represent income to Respondent. Respondent characterized the “double-reimbursement” allegation as an “accounting dispute.” Respondent testified that he had loaned his campaigns personal funds, and that the payments made from his campaign accounts directly to his credit card accounts should be considered repayments of his loans to his campaign accounts. However, Respondent provided no corroborative evidence to substantiate personal loans to his campaign accounts, and his testimony in this regard is rejected as not credible. Additional Sources of Income Millennium Marketing, Inc. (Millennium) and Southwest Florida Enterprises entered into a Consulting Agreement (Agreement) effective November 1, 2006. Pursuant to that agreement, Millennium (Consultant) was to provide consulting and strategic advice relative to a Miami-Dade County referendum campaign for approval of slot machine gaming. Respondent acted as the chief strategist and primary provider of services under the Agreement. Indeed, the Agreement expressly stated that Respondent was to be the person primarily responsible for leading the strategic effort to win approval of the referendum: The Consultant agrees, as a condition precedent to this Agreement, that it shall engage David Rivera as the key person to act as the primary provider of service pursuant to the terms and conditions of this Agreement and to act as the intermediary on behalf of the Consultant with the Company for all purposes, and that the failure of David Rivera to act in these capacities shall be grounds to terminate immediately this Agreement, without notice and without the Company's being required to pay any further amounts or damages, except for accrued, payable and incurred amounts due and previously invoiced as the date of termination. The Agreement provided for a base compensation to Millennium of $250,000.00, with an additional bonus of $750,000.00 should the gaming referendum prove successful. The officers of Millennium were Respondent's mother, Daisy Magarino-Rivera, and Ileana Medina. On October 13, 2010, a Miami Herald article was published in which Respondent’s income was questioned. In response to the article, the Florida Department of Law Enforcement (FDLE) immediately began a criminal investigation of Respondent’s sources of income and financial reporting. A subpoena was issued to Millennium on December 2, 2010, requesting any and all financial records from the inception of Millennium to the present concerning any and all payments made to or received from David Rivera and/or Interamerican Government Relations. Millennium supplied documents pursuant to the subpoena in two separate productions. FDLE received the first group of documents on December 17, 2010, and a second group on January 24, 2011. The first response included 11 checks made payable to Respondent, totaling $132,000. The checks have no notation on the “For” line, whether loan, contingent loan, compensation, or otherwise. The following checks were drafted by Millennium, made payable to David M. Rivera, and deposited into Respondent's personal bank account: Check No. 1006, dated January 8, 2007, $25,000 deposited January 10, 2007; Check No. 1007, dated February 20, 2007, $10,000 deposited February 22, 2007; Check No. 1024, dated February 26, 2008, $10,000 deposited March 11, 2009; Check No. 1015, dated June 12, 2008, $20,000 deposited July 10, 2008; Check No. 1025, dated October 2, 2009, $18,000 deposited October 6, 2009; Check No. 1026, dated October 3, 2009, $12,000 deposited October 6, 2009; Check No. 1031, dated February 12, 2010, $10,000 deposited March 16, 2010; Check No. 1032, dated February 26, 2010, $8,000 deposited March 16, 2010; Check No. 1033, dated March 10, 2010, $7,000 deposited March 18, 2010; Check No. 1036, dated August 10, 2010, $8,000 deposited August 16, 2010; Check No. 1038, dated August 12, 2010, $4,000 deposited August 16, 2010. As can be seen, Check No. 1024 is out of check number sequence for the date, and was not deposited until March 11, 2009, more than a year after it is dated. While it is possible that this check was intentionally pulled from the back of the checkbook and drafted, such seems extremely unlikely given that the rest of the check numbers are in numerical order for the dates of issuance. Rather, the more plausible explanation for this anomaly is that the check was actually drafted shortly before it was deposited by Respondent in March 2009, and for some reason intentionally backdated to February 26, 2008. This inference is supported by the fact that with one exception, all of the other checks were deposited by Respondent within 30 days, and most within just a few days, of the check date.3/ Given this inference, the promissory note purporting to correspond to the February 26, 2008, loan was, in all likelihood, also inaccurately dated. Respondent contends that the above payments represent the proceeds of loans made to him by Millennium. In support of this contention, Respondent introduced 11 promissory notes whose dates correspond exactly to the dates of the 11 checks above. Copies of the promissory notes were not included in Millennium’s first document production to FDLE, but rather were included with the second group of documents provided by Millennium on or about January 24, 2011. The promissory note dated February 26, 2008, corresponds directly with check number 1024. As noted, the corresponding proceeds of that purported loan ($10,000) were not actually received by Respondent until the following year when check number 1024 was deposited on March 11, 2009. Respondent testified that he repaid the Millennium loans in November 2010 with two checks from his personal account in the amounts of $29,760.27 and $11,845.21, and the conveyance of ownership of the condominium unit identified as collateral in the promissory notes. Ileana Medina of Millennium and Respondent's mother (Ms. Magarino-Rivera) loaned Respondent the cash to timely repay the loans to Millennium. Specifically, on October 29, 2010, Respondent's personal account received a deposit of $49,000 from Ileana Medina's Bank of America Home Equity Line of Credit (HELOC). The deposit raised his balance to $55,418. That deposit allowed Respondent to clear two checks to Millennium on November 24, 2010, totaling $41,605.48, both checks identified as “loan repayment.” Between December 21 and 24, 2010, Respondent deposited $19,714.72 from his mother's savings bonds into his personal account. On December 22, 2010, Respondent deposited $10,000 into his personal bank account from his Charles Schwab account. These two deposits allowed Respondent to repay nearly $30,000 towards Ms. Medina's HELOC on December 28, 2010. On January 6, 2011, Respondent deposited $20,000 from his inactive campaign account number 92694/ into his personal account. The $20,000 had been deposited into Account No. 9269 by cashier's check, remitter Daisy Rivera. That deposit allowed Respondent to pay off the remaining $18,286 of Ms. Medina's HELOC. Respondent testified that he secured the $49,000 HELOC loan from Ms. Medina for his congressional campaign in case he needed more money than what had been budgeted for media time. However, as of October 2010 (the time of the loan from Ms. Medina), Respondent's congressional campaign account had a balance of $96,645.19. Notably, the campaign had donated $87,000 to charitable organizations just the month before. Brett Lycett was the lead investigator for the FDLE criminal investigation of Respondent. Being skeptical of the legitimacy of the promissory notes, Inspector Lycett asked Millennium for the original promissory notes and the computer on which the promissory notes were prepared in order to conduct a forensic analysis. A forensic analysis of the computer and the original documents would have helped identify when the actual documents were created and/or signed. Ms. Magarino-Rivera (Respondent’s mother) told Investigator Lycett that the computer on which the promissory notes were created had been discarded. Ms. Magarino-Rivera also advised Investigator Lycett that the original promissory notes had been given to Respondent once he had repaid the loans. The Advocate propounded discovery to Respondent in this case requesting the original promissory notes. In response, Respondent stated “[O]nly copies of such promissory notes are in Respondent's possession.” The greater weight of the evidence supports the conclusion that the $132,000 in payments made to Respondent from 2007 through 2010 were compensation paid to Respondent for his consulting work on the gaming referendum, rather than the proceeds of loans from Millennium. This evidence includes: the absence of any notation on the actual checks that they represented a loan to Respondent; the Check No. 1024 anomaly discussed in Finding of Fact 25 above; and the absence of the computer and original promissory notes upon which a forensic analysis could be performed to determine the legitimacy of the dating. That having been said, the evidence of record does not rise to the “clear and convincing standard” required in this proceeding. Respondent testified that repayment of the $132,000 in Millennium loans was contingent on whether Respondent consummated a business relationship with or joined Millennium by January 15, 2011. Thus, for financial disclosure purposes, Respondent treated the loans he received from Millennium as “contingent liabilities,” and did not report the loans on his CE Form 6's for the years 2007-2010. Respondent offered no evidence to support his contention that Millennium considered the loans to Respondent to be contingent on whether Respondent consummated a business relationship with or joined the company. Moreover, Respondent’s contention is belied by the express language of the promissory notes themselves, which make no mention of Respondent’s repayment obligation being contingent on any future event. Respondent’s assertion that the loans from Millennium were contingent liabilities is rejected. Rather, the best evidence of Respondent’s obligation to repay the loans are the promissory notes, which clearly state that Respondent’s obligation to repay the loans was unconditional. Respondent’s Form 6 Financial Disclosures for 2005 through 2009. On his 2005 CE Form 6, Respondent disclosed only his State of Florida, House of Representatives' salary of $29,916. However, review of Respondent's personal bank account records reflects income of approximately $52,473 in 2005, and personal expenditures of approximately $75,000. On his 2006 CE Form 6, Respondent disclosed only his State of Florida, House of Representatives' salary of $30,576. However, review of Respondent's personal bank account records reflects income of approximately $44,968 in 2006, and personal expenditures of approximately $54,000. On his 2007 CE Form 6, Respondent disclosed only his State of Florida, House of Representatives' salary of $31,932. However, review of Respondent's personal bank account records reflects income of approximately $101,000 in 2007, and personal expenditures of approximately $128,000. On his 2008 CE Form 6, Respondent disclosed only his State of Florida, House of Representatives' salary of $30,336. However, review of Respondent's personal bank account records reflects income of approximately $79,789 in 2008, and personal expenditures of approximately $88,000. On his 2009 CE Form 6, Respondent disclosed only his State of Florida, House of Representatives' salary of $29,697. However, review of Respondent's personal bank account records reflects income of approximately $93,000 in 2009, and personal expenditures of approximately $113,000. The Advocate clearly and convincingly established that for reporting years 2005 through 2009, Respondent had income well in excess of what he reported on his CE Forms 6 for those years. Even assuming the $95,000 received from Millennium during 2007, 2008, and 2009 was a loan, not income, Respondent’s other income still exceeded by tens of thousands of dollars the amounts that he reported on his CE Form 6’s for the years at issue. No loans, contingent or otherwise, were disclosed as liabilities in Respondent's 2006, 2007, 2008, or 2009 CE Forms 6. CE Form 6 requires a specific description of each asset valued over $1,000. On his 2005 through 2009 CE Forms 6, Respondent listed “real estate,” “401K,” “stocks and bonds” and “bank accounts.” In his Proposed Recommended Order, Respondent conceded that he did not list certain assets with the level of detail required by the Commission for the years 2006-2009. CE Form 6 asks for major clients under section D as Secondary Sources of Income. For purposes of the CE Form 6, “Secondary Sources” are not second jobs. Rather, the reporter is required to disclose major customers, clients and other sources of income to business entities of which they have an interest. Under “Secondary Sources of Income,” Respondent listed Interamerican Government Relations as a “business entity” with the U.S. Agency for International Development as a “major client” on his 2005-2009 CE Form 6's. According to Respondent, while serving in the Florida House, Respondent was engaged in international democracy building programs with the U.S. Government. Funds paid to the Respondent under these grant programs were nominal and intended to pay only for expenses incurred while Respondent participated in the programs. Respondent also disclosed Millennium as a secondary source of income on his 2005 CE Form 6, but not on his 2006 through 2009 CE Form 6’s. Respondent filed the first set of CE Form 6X, Amendment to Full and Public Disclosure of Financial Interests, on October 15, 2010. These amendments delete the secondary source of income disclosed for 2003 through 2009, but make no other changes. Respondent filed a second set of CE Form 6X on January 4, 2011, for the years 2006 through 2009, which specifically identifies parcels of real estate, provides the address for Respondent's bank account with Bank of America, and lists stocks and bonds with particularity. The amendments for 2007, 2008, and 2009 also list contingent loans from Ileana Medina and/or Millennium for those years. A CE Form 6F, “Final Full and Public Disclosure of Financial Interest” was required to be filed within 60 days from November 2, 2010, the date Respondent left office as a state representative. The significant difference between a CE Form 6 and a CE Form 6X is that the CE Form 6 asks for the financial information as of December 31, or a more current date. The CE Form 6X asks for financial information as of the date the discloser left office. On March 25, 2011, Respondent filed CE Form 6 which refers to an attachment under liabilities. Attached is a United States House of Representatives' Disclosure Statement which lists a “contingent liability/loan” from Ileana Medina and/or Millennium as paid in full in 2010. On August 7, 2012, and August 24, 2012, Respondent filed two CE Forms 6X. The accompanying cover letter refers to the forms as amendments to Respondent's CE Form 6F filed for 2010. The Form filed on August 24, 2012, lists Millennium as a contingent liability and also lists a loan from Ileana Medina for $49,000. Respondent testified that he was not aware that he was required to file a CE Form 6F in January 2011. He stated that he thought the report was due in May or June of the following year. He also testified that he filed the report in March 2011, because he received a call from the Florida House counsel advising him that the report was overdue.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Commission on Ethics issue a Final Order finding that Respondent: Violated section 112.313(6), Florida Statutes, by requesting and accepting State of Florida reimbursement for travel expenses that were not incurred by him, but rather were paid by his campaign fund accounts; Violated Article II, section 8, Florida Constitution, by failing to or not properly reporting income and/or stocks and bonds; and/or secondary source income on his 2005 through 2009 CE Form 6, Full and Public Disclosure of Financial Interest; Violated section 112.3144, Florida Statutes, by failing to file a CE Form 6F “Final Full and Public Disclosure of Financial Interests” within 60 days of leaving his position with the Florida House of Representatives. DONE AND ENTERED this 6th day of June, 2014, in Tallahassee, Leon County, Florida. S W. DAVID WATKINS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 6th day of June, 2014.
The Issue Whether Respondent, John J. Fugate, Sheriff of DeSoto County, willfully violated Subsection 104.31(1)(a), Florida Statutes (2003), which prohibits an officer or employee of the state, or of any county or municipality, from using his or her official authority or influence for the purpose of interfering with an election or a nomination of office or coercing or influencing another person's vote or affecting the results thereof.
Findings Of Fact Based on the oral and documentary evidence adduced at the final hearing and the entire record in this proceeding, the following findings of fact are made: At the time of hearing, Respondent, John J. Fugate, was the incumbent Sheriff of DeSoto County, Florida. He was first elected in November 2000 and took office in January 2001. At the times pertinent to this case, Sheriff Fugate was a candidate for re-election, having filed the initial paperwork appointing a campaign treasurer and naming a depository for campaign contributions on May 20, 2003. Also on May 20, 2003, Sheriff Fugate submitted his signed "Statement of Candidate," pursuant to Section 106.023, Florida Statutes (2003). This document attested that Sheriff Fugate had received, read, and understood "the requirements of Chapter 106, Florida Statutes (2003)." These statutory provisions were included in the "2000 Candidate Handbook On Campaign Financing," published by the state Division of Elections and given to Sheriff Fugate by the local Supervisor of Elections, when Sheriff Fugate filed his paperwork for the 2000 election. The "2004 Candidate and Campaign Treasurer Handbook" was given to Sheriff Fugate when he filed his re-election paperwork with the local Supervisor of Elections and also included the provisions of Chapter 106, Florida Statutes (2003). During the Commission's investigation, Sheriff Fugate admitted that he had also read Chapter 104, Florida Statutes (2003), and believed he understood its provisions. Though Sheriff Fugate had filed the papers establishing his candidacy for re-election, some Sheriff's Office employees openly questioned whether he really intended to stand for re-election. These questions stemmed from the fact that Sheriff Fugate's teenage son had been killed in an automobile accident in 2002. Sheriff Fugate was aware of these questions and was concerned that loyal employees were unsure of his intentions. For some time, Sheriff's Office employees had also been discussing the status of Major William Wise, the second-in- command to Sheriff Fugate. Major Wise had been the chief deputy under Sheriff's Fugate's predecessor, was kept in that position by Sheriff Fugate, and was very popular among the Sheriff's Office employees. Major Wise was a participant in the State of Florida's Deferred Retirement Option Program ("DROP"), which he believed would require him to separate from the Sheriff's Office for one year upon his official retirement in October 2004. However, in October 2003, Major Wise learned that there was a way for him to reduce his separation to 30 days and still retain his full retirement benefit. Sheriff Fugate decided to prepare a letter to all Sheriff's Office employees that would convey both his re-election intentions and the good news concerning the fact that Major Wise would not have to vacate his position. The letter was written on stationery with a header reading, "Re- Elect Fugate for Sheriff," along with Sheriff Fugate's mailing address and phone number. The text of the letter read as follows: It hardly seems possible that the second half of the third year of this term of office is upon us and I can only concur with the saying that "time stands still for no one." For those that have been here for a while, we have made giant strides for the DeSoto County Sheriff's Office in the past two and a half years and for the newer employees, with your help and our combined efforts, I look forward to more success in the future. Thank you for your help and I truly appreciate the service given to the citizens of DeSoto County. In anticipation of running for a second term of office and as legally required, I have opened my official campaign account. This is the first step in any campaign and this announcement is not to be construed as a request for a contribution to my campaign. I, like you, have been in an employment position when the incumbent was seeking another term of office and can personally relate to pressure applied to assist with the campaign. Please understand that I will, and do value your support in any way that you may be inclined to offer. I also encourage anyone that feels that I have not earned your support in any way in the performance of my duty to feel free to talk to me and you can be assured that it will remain professional and will not be made personal. On another note, I know that there has been some question as to what was going to happen to the position of Major due to Major Wise being in the Drop program and it coming to an end. It is with great pleasure that I announce that a way has been found for Major Wise to continue in his position and he has made the decision to do so. Major Wise has contributed a great deal to this office and I am very pleased that he will be staying with us. If anyone has any questions about this letter, I remind you of our "open door" policy and invite you to feel free to stop by and visit with me. Again, thank you and I look forward to our working together to build a better office for the employees and the community. Beneath Sheriff Fugate's signature was the following: "Pd. Pol. Adv. Paid For In-Kind By John J. Fugate. Approved by John J. Fugate (D)." Sheriff Fugate's review of the Candidate Handbooks led him to conclude that he should not use the Sheriff's Office or DeSoto County resources in preparing or distributing his letter and that none of the costs involved in preparing or distributing the letter should be borne by the Sheriff's Office or the County. Thus, Sheriff Fugate drafted the letter on his home computer. He printed approximately 120 copies of the letter on his home printer, using paper and ink that he purchased at Wal- Mart. On his campaign treasurer's report for the third quarter of 2003, Sheriff Fugate reported the cost of ink and paper associated with this letter as an in-kind contribution from himself to his campaign. Sheriff Fugate brought the copies of the letter to the Sheriff's Office and placed one copy in the pay envelope of each Sheriff's Office employee. At the DeSoto County Sheriff’s Office, it was common practice for items other than pay checks to be included in the pay envelopes. Such items had included advertising circulars and public service memoranda, but not political advertisements. The Sheriff's Office had no specific policy setting forth what may or may not be placed in the pay envelopes, nor was there any particular procedure for obtaining approval of what was to be placed in the pay envelopes. Neither Sheriff Fugate, Major Wise, nor payroll supervisor Kathy Willcutts could recall a request to place an item in the pay envelopes ever having been denied. The pay envelopes, including Sheriff Fugate's letter, were distributed to the Sheriff's Office employees in the usual manner, either at the front desk in the Records Division for pickup or in the employee's mail slot. The employees received Sheriff Fugate's letter upon retrieving their paychecks on or about October 2, 2003. Several Sheriff's Office employees testified at the hearing. None of these employees felt that Sheriff Fugate was attempting to influence their vote or pressuring them to make a monetary contribution to his campaign. Lieutenant Carol Williamson is a 28-year Sheriff's Office employee and has worked for five different sheriffs. Lt. Williamson testified that in the past, she has been essentially ordered to campaign for her bosses, but that she did not consider Sheriff Fugate's letter to be anything other than informational. Deputy Mark Lawrence testified that "I read it, said 'okay,' and threw it away." Sheriff Fugate disclaimed any intent to influence his employees' votes or pressure them for campaign contributions. During his career, he had been forced to campaign for his elected superiors. Because of this experience, Sheriff Fugate did not wish to place his own employees in the position of feeling coerced to support him. Sheriff Fugate testified that he used campaign letterhead and included the "paid political advertisement" disclaimer because his reading of the statutes led him to conclude that those items were legally required on any correspondence referencing his campaign. Nevertheless, Sheriff Fugate maintained that his letter was intended solely to convey information, not to coerce or influence anyone's vote. Sheriff Fugate's testimony is supported by the letter itself, which expressly stated that he was not seeking contributions to his campaign and that employees should feel no pressure to support his candidacy. Nonetheless, Sheriff Fugate's letter was clearly an attempt to favorably influence his employees, albeit a low-key one that did not demand support in the apparent manner of previous sheriffs. The letter solicited the support of Sheriff's Office employees, "in any way that you may be inclined to offer." The letter may not have been coercive, but it was disingenuous for Sheriff Fugate to suggest that the letter was not designed to influence his employees in the upcoming election. Sheriff Fugate was cognizant of Section 104.31, Florida Statutes (2003), and its prohibition on the use of "official authority or influence for the purpose of . . . coercing or influencing another person's vote . . . ." However, Sheriff Fugate believed, mistakenly but in all good faith, that his placement of the letters was allowed under another provision of Section 104.31, Florida Statutes (2003): The provisions of this section shall not be construed so as to prevent any person from becoming a candidate for and actively campaigning for any elective office in this state. All such persons shall retain the right to vote as they may choose and to express their opinions on all political subjects and candidates. For reasons expressed in the Conclusions of Law below, Sheriff Fugate's good faith belief that his actions were within the ambit of the statute negates any suggestion that he "willfully" violated Subsection 104.31(1)(a), Florida Statutes (2003). Sheriff Fugate did not seek advice from the local Supervisor of Elections or an advisory opinion from the state Division of Elections pursuant to Subsection 106.23(2), Florida Statutes (2003), because he believed that he understood the application of the relevant statutes to his situation, including Section 104.31, Florida Statutes (2003).
Recommendation Based upon the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that the Florida Elections Commission enter a final order finding that Respondent, John J. Fugate, did not violate Subsection 104.31(1)(a), Florida Statutes (2003), as alleged, and dismissing the Order of Probable Cause. DONE AND ENTERED this 22nd day of December, 2004, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON 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 22nd day of December, 2004.
The Issue The issues are whether the Respondent Department of Revenue, properly determined that Petitioner Robert Swiger's candidacy for property appraiser in Lake County, Florida would be a conflict of interest or an activity which would interfere with his state employment as an Appraiser II in the Property Tax Administration Program, and if so, whether he became a candidate in violation of Section 110.233(4)(a), Florida Statutes, when he filed a form appointing a campaign treasurer and designating a depository.
Findings Of Fact Respondent employed Petitioner in the Property Tax Administration Program as an Appraiser II beginning September 1990. Petitioner worked in Respondent’s regional office located in Leesburg, Lake County, Florida. Petitioner wrote a letter dated June 7, 1995 to John Everton, Petitioner’s Division Director (now Program Director of Respondent’s Property Tax Administration Program). In the letter, Petitioner requested permission to seek the elective office of Lake County property appraiser while continuing his state employment. By letter dated June 22, 1995, Mr. Everton advised Petitioner that he could not seek the office of property appraiser while employed as an Appraiser II in the Property Tax Administration Program. The letter directed Petitioner to offer his resignation before he pre-filed with the supervisor of election if he decided to pursue his candidacy. On July 12, 1995 Petitioner wrote to L. H. Fuchs, Respondent’s Executive Director, requesting permission to seek the Lake County property appraiser's office. Petitioner wanted to continue working for Respondent until July of 1996 when he would either take a leave of absence or resign when he “qualified” to be on the ballot. Mr. Fuchs received the Petitioner's request on July 19, 1995. In a letter dated July 27, 1995 Mr. Fuchs responded to Petitioner's request by stating: It is the Department's position that your campaign for property appraiser would negatively effect: your ability to perform your job responsibilities which include conducting independent evaluation [sic] of local tax roles; and the agency's efforts to maintain its independence from the local administration of ad valorem taxes. The Executive Director's response went on to state: In your letter to me, you request authorization to continue working for the Department until July 1996, and then, either to take leave of absence without pay or to resign when you qualify to be on the ballot. However, it is the Department's position that your campaign activities commence at the time you pre-file your intent to run for office as required by local rules, because it is at that time that your personal interest in pursuing the office of the property appraiser conflicts with the Department's interest in maintaining complete independence from the local administration of ad valorem taxes. Therefore, your request for approval to run for public office while continuing your employment with the Department is again hereby denied. As instructed by your Division Director, you must resign from the Department prior to commencing your campaign by performing the pre-filing requirement. Failure to do so shall result in disciplinary action to dismiss you from your position in accordance with the Department’s disciplinary standards and procedures, and rule chapter 60K-9, F.A.C., on the grounds that you are in violation of the Department’s Code of Conduct, section 110.223, Florida Statutes, and rule 60K-13.002(3), F.A.C. Mr. Fuchs concluded that his decision was final agency action which Petitioner could appeal pursuant to Section 120.57, Florida Statutes. By letter dated August 16, 1995, Petitioner’s counsel requested clarification of Respondent’s position as set forth in the Executive Director's letter of July 27, 1995. On August 18, 1995, Petitioner filed his request for formal hearing with Respondent. Respondent forwarded this request to the Division of Administrative Hearings on September 1, 1995. On September 8, 1995, Respondent's Deputy General Counsel responded to the request of Petitioner’s counsel for clarification of Respondent’s July 27, 1995 denial letter. This letter sets forth the factual and legal basis for Respondent’s conclusions that: (1) Petitioner’s candidacy would involve an interest which conflicts or activity which interferes with his state employment; and (2) Petitioner would have to resign his state employment before filing his “Appointment of Campaign Treasurer and Designation of Campaign Depository, Form DS-DE 9” (Form DS-DE 9). On September 11, 1995, Petitioner filed his Form DS-DE 9 as required by Section 106.021(1), Florida Statutes, with the Supervisor of Elections for Lake County, Florida. Respondent received proof of such appointment and designation on September 13, 1995. On September 13, 1995, Respondent notified Petitioner that he was dismissed under the extraordinary circumstances provisions of Rule 60K-9.0046, Florida Administrative Code. Respondent dismissed Petitioner because he violated Respondent’s Disciplinary Standard Number 14, Insubordination, and Disciplinary Standard Number 29, Violation of the provisions of law or Department of Revenue rules or policies. Respondent took the position that: (1) Petitioner was insubordinate when he disregarded Respondent’s denial letters and proceeded to file his Form DS-DE 9 without first resigning his state employment; and Petitioner became a candidate in violation of Section 110.233(4), Florida Statutes, and Rule 60K-13, Florida Administrative Code, when he filed his Form DS-DE 9. Petitioner requested a predetermination conference pursuant to Rule 60K-9.0046, Florida Administrative Code. Respondent conducted the conference on September 14, 1995 so that Petitioner’s counsel would have an opportunity to participate. After the conference, Respondent provided Petitioner with a Final Disciplinary Action letter dated September 14, 1995. This letter gave Petitioner the right to appeal the dismissal action to the Public Employees Relations Commission. Respondent is the agency charged with enforcing and implementing the state’s taxing authority. Its regulatory authority includes regulatory oversight and the certification process of county ad valorem tax rolls and related tax administration. County property appraisers determine the just value on each parcel of real estate and the assessment on homestead property pursuant to Sections 193.011 and 193.155, Florida Statutes. Respondent has the duty to insure that each county property appraiser assesses all properties at just value, with equity and uniformity. The working relationship between Respondent’s staff and the county property appraiser and his or her staff is naturally tense. To overcome this tension, Respondent strives to achieve statutory compliance through cooperation with the local property appraiser and his or her staff. The primary focus of Respondent’s Property Tax Administration Program is to determine the relevant level of property assessment in each county and to quantify that assessment level as it relates to a statewide average assessment level. In order for Respondent to accomplish its mission, Respondent has to approve the tax roll and certify the assessment level in each county annually. The Department of Education equalizes school funding and disperses general revenue funds to the county school districts based on their relative assessment level. Each county’s relative ranking dictates the amount that it must levy in county school district taxes. Accordingly, Respondent acting through its appraisers must remain impartial in evaluating the tax rolls in all counties. The position of Appraiser II entails the following duties and responsibilities: Assists county property appraiser and employees in the county appraiser's office in property appraisal techniques to arrive at estimated value conclusions of complex commercial, residential properties, and personal property. Administers policies and procedures pertaining to appraisal of real and personal properties set forth in the Florida Statutes, guidelines and other departmental rules and regulations. Consults with all levels of governmental officials, property owners and private appraisers on problems relative to the appraisal of real and personal property in compliance with existing Florida Statutes and guidelines. Investigates and reports on conduct and performance of all county officials involved in ad valorem tax activities. Investigates taxpayers complaints. Applies the appraisal process as defined by the American Institute of Real Estate Appraisers to arrive at an estimate of value for all types of property. This includes using existing Department of Revenue Cost Manual and other cost manuals as required to arrive at an estimate of value by the cost approach in compliance with existing Florida Statutes and guideline. Performs related duties as required. As an Appraiser II, Petitioner did not routinely perform all of the duties described in his job description. He spent the majority of his time performing appraisal studies, sales ratio studies, and final reviews in the counties surrounding Lake County. Petitioner's job duties and responsibilities entailed safeguarding certain confidential tax information pursuant to: Department Directive 0101.10; (b) Sections 6103 and 7213, Internal Revenue Code (IRC); and (c) various internal security procedures and policies for safeguarding confidential information and information sources. Confidential appraisal information generated by county property appraisers is available to Respondent’s appraisers within a particular region. Likewise, confidential appraisal information generated by Respondent’s appraisers for a particular county in that region is available to all of Respondent’s appraisers within that region. Appraisal studies generated by Respondent’s appraisers together with all supporting documents remain confidential and unavailable to the county property appraisers until the year-end review. During the final review, Respondent’s appraisers and the county property appraisers discuss any discrepancies between their work. The findings of the studies do not become public until the final review process is complete. Petitioner claims that he did not have a computer terminal or the necessary computer skills to personally access confidential information which was stored electronically. However, he could request computer printouts from Respondent’s offices in Tallahassee as well as Respondent’s Leesburg office. Printouts for every piece of property which was a sample in the 1995 Lake County in-depth study was stored in the Leesburg office. That study was complete in June of 1995 before Petitioner requested permission from Respondent to run for office. Respondent began gathering confidential information for the 1997 Lake County in-depth study in October of 1996 before the November general election. Respondent’s appraisers often discuss problems in their work and share information informally. Periodically they engage in a “peer review” of each other’s appraisal work. Nothing prohibited Petitioner from gaining access to confidential information contained within a Lake County in-depth study even though he may not have done the appraisal work in that county. Petitioner had access to that information before it was available to the Lake County property appraiser. The incumbent county property appraiser knew that Petitioner had access to confidential information while he was employed by the state. During the campaign, the incumbent believed that Petitioner continued to receive inside information from Respondent’s staff. The local property appraiser’s perception was unfounded but it caused him to believe that Petitioner had an unfair political advantage. The erroneous perception caused conflict between the incumbent and Respondent. This conflict would have been much worse if Petitioner had run for county property appraiser while continuing his state employment. Even if Petitioner did not seek out confidential information or use it in his political campaign, the perception that it might be available to him jeopardized Respondent’s relationship of cooperation and trust with the incumbent Lake County property appraiser. Respondent does not have a set policy as to whether its appraisers can perform appraisal studies or in-depth studies in the county of their residence. Petitioner did not want to perform appraisals in Lake County because he knew from the beginning that he wanted to run for the office of county property appraiser. He thought he could avoid the appearance of impropriety as long as he did not perform appraisals in Lake County. Respondent never required Petitioner to perform an appraisal study in Lake County. However, Respondent assigned Petitioner on occasion to assist Respondent in completing sales ratio studies by verifying randomly selected sales of real property in Lake County. In verifying the sale of a piece of real property, Petitioner was responsible for determining if the sale was made at arm’s length. This involved making a field inspection to compare the property appraiser’s records to the actual property. If Petitioner could not confirm the sale price with the property owner by mail, he would have to contact the owner or seller by phone or in person. When Petitioner verified sales of real property in Lake County, he presented himself to the public as Respondent’s representative. If Petitioner determined that the county property appraiser’s records did not accurately reflect the sale price, his work could result in a change to the county property appraiser’s numbers to reflect the correct sales price. If Petitioner determined that a sale was not conducted at arm’s length, Petitioner could exclude it from Respondent’s sales ratio study. Thus, Petitioner’s work had a direct impact on Respondent’s decisions relative to the Lake County tax roll. Petitioner performed minimal work in and for Lake County. However, at any time, Respondent could have made a legitimate business decision, including budgetary considerations, which would have required Petitioner to perform job assignments in any county in the Leesburg region, including Lake County. For example, Petitioner provided aid and assistance in Respondent’s Lake City regional office during his employment in the Leesburg regional office. If Petitioner had continued to work in surrounding counties while running for office against the Lake County property appraiser, the public would have had difficulty distinguishing between campaign statements that represented the candidate’s personal opinions and statements that appeared to represent Respondent’s official position. This was true in the campaign even though Petitioner ran as former state employee. Such conflicts severely compromise the public’s perception of Respondent’s independence in local tax administration matters in all the counties under its jurisdiction. Petitioner’s continued state employment during the campaign would have placed Respondent in the middle of a political contest over which it had no control and in which it had a duty to remain neutral. It was difficult enough for Respondent to remain neutral with a former employee seeking elective office. Appraisal studies for one county can affect the appraisal assessments in another county. For instance, the appraisal methodology used by Respondent in Dixie County has been introduced into litigation presently occurring in Levy County. In that case, the neighboring county’s methodology for applying and calculating the “base rate” (a unit of measurement per square foot for dollar valuation of structures) has become an issue. Respondent develops a "systematic base rate" for use in the appraisal system from data gathered from a particular region. Data gathered for the Leesburg regional office included data from Lake, Brevard, Indian River, Flagler, Polk, Sumter, Orange, Marion, Manatee, Volusia, Seminole, Citrus, Hillsborough, Hernando, and Pasco Counties. Respondent uses this data to determine what the appropriate base rate would be for any one of those counties. Thus, Petitioner’s appraisal work affected the appraisal assessments in Lake County even though Respondent did not assign him to do appraisal work that county. When a county’s tax role cannot be reconciled within 90 percent of Respondent’s assessment values, Respondent issues review notices or administrative orders directing compliance. Such disputes can eventually result in litigation with Respondent and the local property appraiser as adverse parties. In that circumstance Respondent’s appraiser must defend his work product in court. Respondent is a party defendant to all lawsuits in which a taxpayer challenges a county property appraiser’s assessment. In these lawsuits Respondent must assist the county property appraiser and defend valuation methodologies which the county property appraiser uses as directed by Respondent. When Respondent becomes involved in litigation, Respondent’s property appraisers are required to testify regarding their work as it relates to the subject property. The appraisers also might be required to defend their work product as analogous appraisal methodologies and practices, even though their work was done in and for different counties from the litigating county. Such testimony would be subject to impeachment if Respondent’s appraisers make campaign statements while running for the office of county property appraiser that are contrary to Respondent’s legal position. The resulting conflicts may not become apparent until a case goes to trial years after Respondent’s appraiser participates in a political campaign. Petitioner planned to seek the office of Lake County property appraiser for several years before he actually sought permission from his state employer. He never obtained Respondent’s permission to seek political office. He began his campaign without authorization from the Department of Management Services. Petitioner officially began his campaign for Lake County property appraiser when he filed Form DS-DE 9 with the Lake County supervisor of elections on September 11, 1995. At that time he made his intentions clear to the public. Petitioner could not complete the process of qualifying for office and take the candidate’s loyalty oath until sometime between February and July 17, 1996. He did not want to wait that long to begin his campaign activities which included soliciting campaign funds. Petitioner felt he would be at a disadvantage in the campaign if he did not immediately begin to raise money to fund his campaign. In the political campaign, Petitioner made statements concerning the income approach to valuing property. He characterized the use of income capitalization as valuing household or business income and not property. He also characterized the income approach to appraisal as an income tax. These characterizations were in direct conflict with Respondent’s position in a law suit filed by a cable television company against the incumbent Lake County property appraiser and Respondent over tangible personal property taxes. Petitioner’s characterizations about the income approach methodology called into question any appraisals that he conducted in any county using that methodology. During the political campaign Petitioner also made statements concerning impact fees claiming that they have no affect on the value of real property. Petitioner’s statements on impact fees conflict with Respondent’s position on impact fees. It is foreseeable that, as a result of Petitioner’s comments, a taxpayer will litigate the issue of whether impact fees affect property value. Petitioner’s position on impact fees may adversely affect Respondent’s ability to support its position in court. Petitioner made incorrect statements during the campaign regarding the county property appraiser’s assessed value of Lake County property. For example, he claimed that the county property appraiser had assessed the county’s property at 122 percent of its just value in 1994. This statement conflicted with Respondent’s determination that Lake County’s 1994 level of assessment was 93.4 percent. When Petitioner worked for Respondent, he was a Certified Florida Evaluator (CFE). After the termination of his employment, Petitioner was no longer entitled to claim that designation. Nevertheless, Petitioner continued to identify himself as a CFE during the campaign. This campaign tactic contributed to the perception of the county property appraiser that Respondent was acting with Respondent’s sanction. County property appraisers know how Respondent’s appraisers in other counties apply Respondent’s policy. Likewise, Respondent’s appraisers know how their counterparts assigned to neighboring counties apply appraisal principles in Respondent’s appraisal studies. The county property appraisers would become immediately distrustful and suspicious of Respondent’s motives if one of Respondent’s appraisers were to seek the office of county property appraiser. They would assume that Respondent was attempting to call their appraisal methodologies into question. Such a campaign would be disruptive to the tax administration process. It would destroy the atmosphere of trust and confidence that must exist between Respondent and the county property appraisers. Even though Petitioner was a former employee during the campaign at issue here, Petitioner’s candidacy aroused suspicion and distrust on the part of the county property appraiser towards Respondent's tax administration staff and its appraisers. The incumbent and his staff were suspicious that Respondent was promoting Petitioner’s campaign in order to foster its own ideas and judgments concerning appraisal processes and techniques. They were concerned that Respondent would take punitive measures against them during the next audit. Respondent must maintain a neutral position in any political campaign. Respondent certainly cannot be expected to grant its appraiser permission to seek an office but retain the right to oversee the appraiser’s activities and to censure his or her comments. Thus, Respondent properly follows a policy of not approving its property appraisers' candidacies for the office of county property appraiser. The candidacy for the office of county property appraiser by a still-employed agency appraiser presents a real conflict of interest between Petitioner's state employment and Respondent's statutory mission. The campaign at issue here is the perfect example of how the platform or public statements of a candidate can conflict with Respondent's administration and interpretation of the tax laws under Chapters 192-197, Florida Statutes. If Petitioner had continued his state employment, his campaign would have impaired Respondent’s reputation for impartiality and independent judgment in appraisal work and administration of the tax laws among all of the counties under its jurisdiction. On September 3, 1996, Petitioner was defeated in the Republican Primary for the office of Lake County Property Appraiser.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is RECOMMENDED that Respondent enter a Final Order affirming its decision to terminate Petitioner’s state employment based on findings that his candidacy involved a conflict of interest with his continued state employment and that he became a candidate for the office of Lake County Property Appraiser without proper authorization.DONE AND ENTERED this 7th day of March, 1997, in Tallahassee, Florida.SUZANNE F. HOOD Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 7th day of March, 1997. COPIES FURNISHED: Patrick A. Loebig, Esquire Brian F. McGrail, Esquire Department of Revenue Post Office Box 6668 Tallahassee, Florida 32314-6668 Marie A. Mattox, Esquire 822 North Monroe Street Tallahassee, Florida 32303 Linda Lettera, General Counsel Department of Revenue 204 Carlton Building Tallahassee, Florida 32399-0100 Larry Fuchs, Executive Director Department of Revenue 104 Carlton Building Tallahassee, Florida 32399-0100
The Issue The issue in the case is whether the allegations of the Administrative Complaint are correct and, if so, what penalty should be imposed.
Findings Of Fact At all times material to this case, the Respondent was a licensed Florida real estate sales associate. In September 2001, the Respondent was required to complete a 14-hour credit continuing education course and test from the Bert Rogers Real Estate School in order to renew her license. In December 2001, Tamera L. Burns (Burns) filed a complaint with the Petitioner asserting that she had completed a signed, but otherwise blank answer sheet on behalf of and at the direction of the Respondent, and that she faxed the answer sheet to the real estate school. The Respondent's relationship with Burns began in 2000 when the Respondent placed an advertisement to rent a house the Respondent owned. Burns responded to the ad and rented the house from the Respondent. There were discussions about Burns purchasing the house from the Respondent. During the period of time that Burns rented the home from the Respondent, the two women became friends. Their children played together and spent some nights together. Burns sometimes "babysat" for the Respondent without being paid for her services. Burns began to consider a real estate career, and the two women discussed working together. At the time the Respondent allegedly instructed Burns to complete the answer sheet, Burns was seeking to obtain a real estate sales license of her own and was preparing to take a state real estate test in October 2001. During the summer and fall of 2001, the friendship apparently became strained because of personal disagreements between the women. There were also financial issues between the women. Rental checks written by Burns and given to the Respondent for rent due in May and again in November of 2001, "bounced" because Burns did not have sufficient funds to cover the checks. When the Respondent brought the checks to Burns' attention, Burns gave funds to the Respondent to cover the checks. Burns also began to allow additional persons and pets to reside in the house beyond those authorized by the Respondent at the time the house was rented. The Respondent objected to the additional tenants. Burns apparently vacated the house in November or December of 2001. At the hearing, Burns testified that the Respondent provided the test materials to Burns, and that the Respondent instructed Burns to take the test and to fax the answer sheet to the Bert Rogers Real Estate School. The Respondent testified at the hearing that she personally completed the test answer sheet and that she provided her test materials to Burns after the Respondent had completed and submitted the answer sheet, in order to provide additional material to Burns who was preparing for her own examination. Burns testimony was not persuasive. The Respondent's testimony was persuasive and is credited.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Petitioner enter a Final Order dismissing the Administrative Complaint filed against Respondent Marsha V. Lee. DONE AND ENTERED this 13th day of April, 2004, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM 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 13th day of April, 2004. COPIES FURNISHED: Marsha V. Lee 865 Snow Queen Drive Chuluota, Florida 32766 Alfonso Santana, Esquire Department of Business and Professional Regulation 400 West Robinson Street, Suite 801N Orlando, Florida 32801-1757 Nancy P. Campiglia, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-2202 Jason Steele, Director Division of Real Estate Department of Business and Professional Regulation 400 West Robinson Street, Suite 802N Orlando, Florida 32801
