Findings Of Fact ae On June 11, 2009, the staff of the Commission issued a Staff Recommendation, recommending to the Commission that there was probable cause to believe that The Florida Election Code was violated. 2. On September 1, 2009, the Commission entered an Order of Probable Cause finding that there was probable cause to charge the Respondent with the following violations: Count 1: Respondent violated Section 106.07(2)(b)1., Florida Statutes, when the Respondent failed to file with the candidate’s filing officer an addendum to the candidate’s 2008 Q1 incomplete campaign report due on April 10, 2008, after receiving notice from the filing officer. 3. On September 3, 2009, the Respondent was served by certified mail with a copy of the Order of Probable Cause. 4. The Respondent and the staff stipulate to the following facts: C_0 045 (12/08) 1 Consent Order at its next available meeting. 10. | The Respondent voluntarily waives the right to any further proceedings under Chapters 104, 106, and 120, Florida Statutes, and the right to appeal the Consent Order. 11. This Consent Order is enforceable under Sections 106.265 and 120.69, Florida Statutes. The Respondent expressly waives any venue privileges and agrees that if enforcement of this Consent Order is necessary, venue shall be in Leon County, Florida, and Respondent shall be responsible for all fees and costs associated with enforcement. 12. If the Commission does not receive the signed Consent Order within 20 days of the date Respondent receives this order, the staff withdraws this offer of settlement and will proceed with the case. 13. Payment of the civil penalty is a condition precedent to the Commission’s consideration of the Consent Order. PENALTY WHEREFORE, based upon the foregoing facts and conclusions of law, the Commission finds that the Respondent has violated Section 106.07(2)(b)1., Florida Statutes, and imposes a fine of $500 for the violation. Therefore it is ORDERED that the Respondent shall remit to the Commission a civil penalty in the amount of $500 inclusive of fees’ and costs. The civil penalty shall be paid to the Florida Elections Commission, 107 W. Gaines Street, Collins Building, Suite 224, Tallahassee, Florida, 32399-1050, The Respondent hereby agrees and consents to the terms of this Order on , 2009. C_o 045 (12/08) 3 a. The Respondent was a candidate for the Florida House of Representatives- District 115 in the 2008 election. b. Section 106.07(2)(b)1., Florida Statutes, requires a candidate to file an addendum to an incomplete campaign report within three days after receiving notice from the filing officer. c. Respondent filed his 2008 QI campaign treasurer’s report listing campaign contributions and expenditures between January 1, 2008 and March 31, 2008 on April 11, 2008. The report was incomplete, and the filing officer requested the Respondent to file an addendum to his report d. Respondent did not file an addendum to his 2008 QI report within three days.
The Issue Whether the Petitioner, American Amateur Mixed Martial Arts, (AAMMA or Petitioner) is entitled to an award of attorney’s fees and costs pursuant to section 57.111, Florida Statutes.
Findings Of Fact AAMMA is a not-for-profit corporation, incorporated under the laws of Florida. It has no full-time employees and utilizes volunteers to conduct its business. Evidence in the record as to AAMMA’s net worth throughout its existence and at the time the case was initiated by the Department of Business and Professional Regulation, State Boxing Commission (Department), demonstrated that AAMMA sustains itself through personal donations from members and fees from a variety of registrations. Evidence further demonstrated that the association was very small with few members and registrations. In fact, AAMMA uses a home gym located on property owned by founders and members Larry and Alice Downs to operate a mixed martial arts/boxing and training school. Mr. Downs’ plumbing business and the Downs’ residence are also located on this property. There was no evidence of the value of the home gym. Additionally, there was no evidence that demonstrated that AAMMA has any ownership interest in the home gym owned by the Downs’ or in any training equipment associated with that gym. More importantly, there was no substantially credible evidence that demonstrated AAMMA was not a separate entity from any of the Downs’ interests or that any of the Downs’ finances should be included in the net worth of AAMMA. On the other hand, the testimony, while not specific, was sufficient to infer that AAMMA’s net worth is well below the $2,000,000.00 threshold for a business to be considered a small business for purposes of section 57.111, Florida Statutes. Moreover, as indicated earlier, AAMMA has no full-time employees. Based on these facts, AAMMA is a small business as defined under section 57.111. The underlying action in this case was initiated by the Department when it filed an Amended Administrative Complaint against AAMMA in DOAH Case No. 12-0142.2/ Additionally, after a lengthy multi-day hearing during which both sides vigorously litigated their side of the case and after both parties filed Proposed Recommended Orders in the matter, AAMMA was the prevailing party in DOAH Case No. 12-0142. In case 12-0142, the Amended Administrative Complaint was based on evidence that was obtained through investigation by the Department both before and after the filing of the Administrative Complaints in the related DOAH Case No. 11-5102.3/ The amended complaint in case 12-0142 alleged in Count I that Respondent allowed minors under the age of 18 to engage in mixed martial arts (MMA) matches on January 28, 2011; February 26, 2011; May 6, 2011; July 16, 2011; and August 3, 2011, in violation of sections 548.006(4), and 548.071(1), Florida Statutes, and Florida Administrative Code Rule 61K1- 1.0031(1)(c), by failing to enforce the ISKA Overview as Respondent’s minimum health and safety standards and engaging in unprofessional conduct. The ISKA Overview contained age limits for participants in amateur MMA matches. The evidence in the underlying case demonstrated that AAMMA allowed athletes under the age of 18 years to participate in MMA matches on the dates alleged in the Amended Administrative Complaint. Clearly, such evidence constitutes a reasonable basis in fact for which the Department may proceed with an administrative action. The Department alleged in Count II of the Amended Administrative Complaint that Respondent was aware of, and allowed, amateur fighters to compete outside the appropriate weight class on July 16, 2011, in violation of sections 548.006(4) and 548.071(1) Florida Statutes, and Florida Administrative Code Rule 61K1-1.0031(1)(c), by failing to enforce the health and safety standards in Respondent’s Rules and ISKA Overview Guidelines, specifically regarding weight classes, as well as, engaging in unprofessional or unethical conduct. Again, the evidence presented in DOAH Case No. 12-0142 showed that Robert Birge, a heavyweight, and Travis Grooms, a super heavyweight, competed against each other at the July 16, 2011, event with a weight difference of 61 pounds. Again, there was a reasonable basis in fact for the Department to proceed with an administrative action. The Department alleged in Count III of the Amended Administrative Complaint that Respondent misled American Legion Post #75 into signing a letter that incorrectly stated the American Legion was the sole sponsor of Respondent’s May 6, 2011, amateur event, thereby violating section 548.071(4), by engaging in unprofessional or unethical conduct. The Department’s evidence showed that Alice Downs, Larry Downs, Jr., and his secretary had access to AAMMA’s letterhead. While the evidence eventually showed that the event held on May 6, 2011, was not sponsored by AAMMA or the American Legion, the Department’s evidence clearly established that the letter to the Department attempting to exempt the May 6, 2011, event from regulation was on AAMMA’s letterhead. From these facts, it was reasonable for the Department to conclude that the letter came from AAMMA at the time it initiated the underlying action and was an attempt to mislead the American Legion into signing the letter in order to gain an exemption under the statutes for the May 6 event. Given these facts, there was a reasonable basis for the Department to proceed with an administrative action. In conjunction with the factual basis of the underlying administrative action, the Department’s legal position in that action was based on its authority to regulate amateur sanctioning organizations and the rules the boxing commission had promulgated under the authority granted to it in chapter 548, Florida Statutes. Ultimately, AAMMA prevailed because the rules of the boxing commission were so vague that they could not be enforced against AAMMA based on the law governing enforcement of such rules. However, the Department, at the initiation of the underlying proceeding and throughout this process, had reasonable legal arguments which it posited to support its interpretation that the ISKA Overview contained the health and safety standards AAMMA was required to follow and that the Department was required to enforce. The fact that the Department did not prevail in its legal position does not support a finding that its position did not have a reasonable legal basis. Given these facts, the Department had a reasonable basis in law to proceed with an administrative action against AAMMA. Finally, the undersigned has reviewed the affidavit as to Attorney’s Fees and Costs filed on September 23, 2013, and the corrections thereto, and finds the fees and costs contained therein to be reasonable. However, since the Department was substantially justified in initiating the underlying proceeding in this action, Petitioner is not entitled to an award of attorney’s fees or costs in this matter.
The Issue The issue for consideration in this case is whether Respondent, Katherine Harris, violated the provisions of Section 106.08, Florida Statutes, by making payments of organizational dues from her campaign account prior to the 1998 election.
Findings Of Fact As to the Merits: At all times pertinent to the issues herein the Commission was the state agency responsible for the oversight of public elections in this state. Respondent was a candidate for public office whose activities were subject to scrutiny by the Commission. The Division of Elections (Division) was a branch of the office of the Secretary of State. Respondent initially notified the Division on June 8, 1997 that she was seeking re-election to the Florida Senate seat she then held. However, on November 19, 1997, she filed the appropriate forms with the Division to signify her candidacy for the office of Florida Secretary of State. At or near each filing, Respondent filed with the Division a "Statement of Candidate" in which she stated she had received, read, and understood the requirements of Section 106, Florida Statutes. From April 1997, through mid-March 1998, 21 separate checks were written by her campaign treasurer on Respondent's campaign account with the Barnett Bank for dues payments to organizations. This is the issue here. The organizations to which the checks were written are organizations established for the public good. The checks in issue are as follows: CH # DATE PAYEE AMT 0101 04/03/97 Charlotte County 9.00 Republican Club 0102 04/03/97 Peace River Federated 5.00 Republican Women 0103 04/03/97 Manasota Republican 11.00 Women's Club Fed. 0104 04/03/97 Venice-Nokomis Fed. 11.00 Women's Club 0105 04/03/97 Sarasota Bay Republican 5.00 Women's Club 0106 04/03/97 West Charlotte 5.00 Republican Club 0108 06/05/97 Bernice Furrow 25.00 0109 07/03/97 Venice Area C of C 50.00 0110 08/06/97 Charlotte County C of C 65.00 0111 08/11/97 Republican Women's Club 10.00 of Sarasota 0112 09/04/97 Sarasota Bay Republican 15.00 Women's Club 0114 10/29/97 Taxpayer's Association of Sarasota County 12.00 0120 11/30/97 Sarasota Republican Club 15.00 0162 02/11/98 Mid-County Republican 15.00 0163 02/11/98 Club Venice-Nokomis Federated 7.50 0164 02/11/98 Republican Club West County Republican 5.00 0165 02/11/98 Club Siesta Key Republican 6.00 0189 03/03/98 Club Sarasota County Young 30.00 0199 03/09/98 Republicans Republican Women's Club 10.00 of Sarasota 0204 03/16/98 Republican Women's Club 15.00 0206 03/16/98 of Lakeland Federate Manasota Republican 10.00 Women's Club Federate All of the checks except number 0108 were for dues to the organization shown, and totaled $325.00. Check number 0108, in the amount of $25.00, was made to Bernice Furrow, and the memo space on the instrument indicates it was issued in reimbursement of dues to the Peace River Forum. These checks were written at the direction of Respondent. Clifford M. King, the maker of the checks in question, is an attorney admitted to practice in Florida in 1988. He served as campaign treasurer for Respondent during her successful campaign for the Florida Senate in 1994, and was her attorney and campaign treasurer during her campaign for Secretary of State. His major areas of practice include business transactions, estate planning, and probate. He has not worked for any other candidate nor has he ever been employed by any other client to give advice on elections law. Nonetheless, he considered himself to be qualified to advise Respondent on the Florida Election Code during her campaigns. It is so found. To prepare for giving that advice, Mr. King reviewed the Florida Statutes pertinent to elections and the campaign handbook prepared and issued by the Division of Elections. However, he did not read any opinions issued by the Division or opinions of the Attorney General dealing with elections law. When issues arose with which he did not feel comfortable, he would seek the advice of the Division of Elections. Mr. King cannot recall whether it was Respondent or one of her campaign workers who asked him if it were permissible to spend campaign funds for dues, but he is sure the question was asked. In response, he advised that to do so was a permissible expenditure of the campaign. Mr. King recalls that this same issue arose during the 1994 campaign at which time, based on his research of the statutes and the Division's campaign handbook, and after consultation with individuals involved in other campaigns, he concluded that expenditures for dues were permissible and he so advised Respondent. Though Mr. King recalls having discussed with Respondent the issue of the permissibility of writing these checks, he did not advise her of the specific provisions of the elections statute in issue here. He was satisfied at the time he advised Respondent and wrote the checks in issue, that it was lawful and permissible to do so. The Division's investigator, Mr. Smith, contacted representatives of most, if not all of the organizations to whom the checks in issue were written. All checks except the one to Ms. Furrow, were in payment of membership dues paid by all members. Mr. Young could find no instance where a specific benefit accrued to Respondent as a result of her payment of dues which was not received by every other member of the organization, candidate for public office or not. It is so found. As to the Motion for fees: After the Order of Probable Cause involving Respondent was served on Respondent, she requested a formal hearing. This hearing was initially denied by the Commission on the grounds that Respondent had failed to identify issues of fact requiring formal hearing. However, this decision was subsequently reversed and the matter was referred for formal hearing before the Division of Administrative Hearings. While the discovery process was being carried out, it became known that Respondent had twice been advised by Mr. King, her attorney, that the donations/dues payments from campaign funds in issue were permissible expenditures. When this information became known to the Commission's counsel, counsel prepared a Motion to Dismiss the Order of Probable Cause and recommended that action to the Commission. The basis for the recommendation was a lack of evidence to demonstrate that Respondent's actions were willfully illegal. Notwithstanding its counsel's advice, the Commission determined to proceed with the action on the basis that a majority of the Commissioners considered Respondent's counsel/campaign treasurer, the individual who had given the advice to Respondent, a "straw man" whose testimony by deposition was for the sole purpose of exonerating Respondent. That conclusion is not supported by the evidence of record, however.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Florida Elections Commission enter a final order dismissing its Order of Probable Cause in this matter. An award of attorney's fees and costs to Respondent is unwarranted and rejected. DONE AND ENTERED this 30th day of October, 2000, in Tallahassee, Leon County, Florida. ARNOLD H. POLLOCK 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) 921-6947 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of October, 2000. COPIES FURNISHED: Phyllis Hampton, Esquire David F. Chester, Esquire Florida Elections Commission The Capitol, Room 2002 Tallahassee, Florida 32399-1050 Richard E. Coates, Esquire Christopher B. Lunny, Esquire Katz, Kutter, Alderman, Bryant & Yon, P.A. 106 East College Avenue Post Office Box 1877 Tallahassee, Florida 32302-1877 Barbara M. Linthicum, Executive Director Florida Elections Commission The Capitol, Room 2002 Tallahassee, Florida 32399-1050 Steven K. Christensen, Clerk Florida Elections Commission The Capitol, Room 2002 Tallahassee, Florida 32399-1050
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 to be determined is whether Petitioners, William Guererro and Christina Bang, a/k/a Christina Guerrero, are entitled to attorney’s fees pursuant to section 57.105, Florida Statutes, from Respondents, Bernard Spinrad and Marien Spinrad, related to litigation between the parties in DOAH Case No. 13- 2254.
Findings Of Fact The Recommended Order in DOAH Case No. 13-2254, including the Preliminary Statement, the Findings of Fact, and the Conclusions of Law contained therein, and the Department of Environmental Protection’s Consolidated Final Order in OGC Case No. 13-0858 are incorporated herein by reference as the facts underlying this Final Order.
The Issue Whether Rule 22B-1.055(2)(d), Florida Administrative Code, is an invalid exercise of delegated legislative authority?
Findings Of Fact By letter dated April 17, 1985, A. J. McMullian III, State Retirement Director, advised C. H. Wigley, Jr., Acting Executive Director of the Escambia County Utilities Authority (ECUA) that the individual petitioners were eligible for inclusion in the Regular Class, but not the Elected State Officers' Class, of the Florida Retirement System. Respondent's Exhibit No. 8. "The major difference between the Elected State Officers' Class and the Regular Class is the ESOC members . . . receive a higher retirement benefit . . . for the same number of years of service." (T. 38) To finance higher benefits the public employer pays a higher amount, set on "an actuarily sound basis." Deposition of Andrew J. McMullian, III, page 19. A few years back, "Escambia County and the City of Pensacola, felt it was time . . . to combine . . . utilities' systems into one agency. The City had just completed construction of a twenty-million-gallon-a-day treatment plant and had excess capacity. [Unincorporated] Escambia County had the . . . customers but not the facilities . . ." (T. 74) "Escambia County was faced with extending or having to go to the bond market to borrow significant money to buil[d] treatment facilities . . . [but] it was more practical that the City and County get together." (T. 88) By special act the legislature created the ECUA to purchase and operate the water and sewer systems that had belonged to both City and County, and to exercise "all powers with respect to water and sewer, and such other additional utilities as may be hereafter designated . . . which are . . . could be, or could have been but for this act, exercised by the City of Pensacola or Escambia County, Florida." Ch. 81-376, Section 3, Laws of Florida (1981). The ECUA came into existence on October 1, 1981, (T. 90) and now provides natural gas service (T. 95) at least outside the franchised area of the City of Pensacola. Ch. 85-410, Section 5(r), Laws of Florida (1985). The ECUA is authorized to provide utility services to the extent of its capacity to do so even in areas outside Escambia County. Ch. 85-410, Section 5(q), Laws of Florida (1985). By passing a resolution and signing an agreement effective October 1, 1982, (T. 108), the ECUA joined the Florida Retirement System and "decided to purchase past service back to October, '81, for all employees who were employed as of October 1st, '82." (T. 107) See Respondent's Exhibit No. 5. Beginning with the 1984 elections, candidates for the ECUA Board had to meet the same qualifications as candidates for county office and had to live in the county commission district they sought to represent. Each of the five single-member districts has the same boundaries as the corresponding county commission district. Terms of ECUA board members are staggered just as county commissioners' terms are and, beginning in January 1987, all members will be elected for four-year terms, as county commissioners are. Each ECUA board candidate is subject to state election laws governing filing papers, qualifying fees and the like, to the same extent as candidates for county office are; and each takes an oath before entering upon the duties of the office. Petitioners' Exhibit No. 2. The "Florida Retirement System . . . is a statewide consolidated system that covers public programs and employee groups on all levels of government, state, county, school board, cities, special districts Deposition of Andrew J. McMullian, III, page 13. State retirement programs before the Florida Retirement System, which came into existence on December 1, 1970, did not distinguish between elected officials and regular employees. Deposition of Ruth Sansom, page 16. After the Elected State Officers' Class had been created, the law was again amended, effective July 1, 1981, to make "county elected officials, including any sheriff, tax collector, property appraiser, supervisor of elections, clerk of the circuit court, county commissioner, school board member, or elected school board superintendent," Section 121.052(1)(g), Florida Statutes (1985), eligible for participation in the Elected State Officers' Class. Chapter 81-214, Laws of Florida (1981). Aside from holders of the offices named, the Comptrollers of Orange and Escambia Counties and the Mayor of Metropolitan Dade County are enrolled in the Elected State Officers' Class. (T. 40) Respondent viewed the Mayor of Metropolitan Dade County as differing in name only from a county commissioner and allowed participation in the Elected State Officers' Class on that account. (T. 50) With respect to the Orange and Escambia County Comptrollers, "the majority in one case of the duties of the Clerk were transferred to the Comptroller and in the other case, it seems like it gas about a 50/50 split of the prior duties being transferred over to the Comptroller." (T. 50) In these circumstances respondent decided that "based on the functions that they were performing, the duties of the office, that whether the title said Comptroller or Clerk, they essentially fit the definition." (T. 50) In response to a question from respondent's Assistant Director, Lew Dennard, respondent's chief legal officer, Augustus D. Aikens, Jr., wrote a memorandum dated October 20, 1981. Petitioners' Exhibit No. 1. As phrased by Mr. Aikens, the question was whether the statutory language "limits membership in the Elected State Officers' Class to those elected county officers who are enumerated in Section 121.052(1)(g)"? In the memorandum, Mr. Aikens declared himself of the opinion that the language "any county elected officer" was intended to establish the class of individuals eligible for participation in the Elected. State Officers' Class; and the term "including" followed by an enumeration of elected county officers was merely intended to be descriptive of the individuals eligible for inclusion in the Elected State Officers' Class as county elected officers. Accordingly, the class is not exhausted by the enumeration found in subsection (g). Other elected county officers are also includable in the Elected State Officers Class. Petitioner's Exhibit No. 1. On November 6, 1984, however, respondent promulgated Rule 22B-1.05, Florida Administrative Code, which did not make participation in the Elected State Officers' Class of the Florida Retirement System mandatory for any county officer and provided: Effective July 1, 1981, participation in the Elected State Officers' Class of the Florida Retirement System shall be optional for the following elected county officers: sheriff, tax collector, property appraiser, supervisor of elections, clerk of the circuit court, county commissioner, district school board member, and elected district school board superintendent. The elected officer may transfer to and participate in the Elected State Officers' Class by submitting an application to the Administrator within one year from July 1, 1981 if already in office on that date, or within one year from the date of election if elected after July 1, 1981. Officers appointed to fill an unexpired term may join the Elected State Officers Class under this provision. An elected county officer who transfers to the Elected State Officers' Class and who fails to win reelection to an elected office shall cease to be a member of the class. If the member returns to a position covered under the Florida Retirement System he shall receive credit thereafter based on the class of membership of his position. 22B- 1.055(2)(d) In the substantial interest proceedings, Case No. 85-1718, respondent has taken the position that this rule provision, along with the statutory language it implements, preclude petitioners participation in the Elected State Officers' Class of the Florida Retirement System.
The Issue Whether the Respondent committed the violation alleged in the Order of Probable Cause entered November 18, 2010, and, if so, the penalty that should be imposed.
Findings Of Fact Because Mr. Horan failed to respond to the Petitioner's First Request for Admissions, the matters of which admissions were requested are deemed conclusively established for purposes of this administrative proceeding. See Fla. R. Civ. P. 1.370. The Petitioner's First Request for Admissions is attached to this Final Order, and the matters of which admissions were requested are adopted herein as findings of fact.
The Issue Whether Respondent violated the provisions of Section 104.051(2), Florida Statutes (2002), by willfully neglecting to perform her duties as alleged in the 55-count Order of Probable Cause and, if so, the penalties that should be imposed.1
Findings Of Fact THE PARTIES Petitioner is created by Section 106.24, Florida Statutes, and has the authority conferred upon it by the Florida Election Code. Respondent was elected as the Broward County SOE in November 2000. She was sworn into office in January 2001. Respondent was serving as the Broward County SOE for the 2002 Primary. Respondent was suspended from office by Governor Jeb Bush in November 2003. At the time of the final hearing in this proceeding, Respondent was not working, had little equity in any asset, and owed money to her attorneys and to various credit card companies. She was borrowing money from relatives to meet monthly expenses. BCSOE OFFICE At the time of the 2002 Primary, the Broward County SOE Office (BCSOE Office) had a main office in the Broward County Governmental Center (BCGC), six regional offices, and a facility referred to as the Voting Equipment Center (VEC). Respondent had her main office in the BCGC. The VEC was essentially a warehouse at which voting equipment and supplies were stored. The six regional offices were spread throughout Broward County. At the time of the 2002 Primary, there were more that 60 full- time employees of the BCSOE Office.3 Walter Foeman served as Respondent’s Deputy SOE for the 2002 Primary. Respondent replaced the employee who had served as the Deputy SOE for Respondent’s predecessor in office. Pat Nesbit served as chief of the Poll Worker’s Department. Ms. Nesbit had the responsibility of recruiting and training poll workers. Ms. Nesbit was a veteran employee of the BCSOE Office of approximately 12 years.4 Mr. Foeman was Ms. Nesbit’s direct supervisor. Barbara Adams was the chief financial officer for the BCSOE Office. Carol Hill was a director in the BCSOE office. Petitioner attempted to establish that Respondent’s management style and her hiring practices created dissension among the employees of the BCSOE Office so that it became a matter of us (the employees from Respondent’s predecessor in office) versus them (the new employees hired by Respondent). That attitude did exist to a degree within the office and was exacerbated by staff turnover, including supervisors who had served Respondent’s predecessor in office. However, Petitioner did not prove that the negative attitude within the office was a contributing factor to the 23 precincts opening late or the 32 precincts that failed to comply with Governor Bush’s Executive Order. As will be demonstrated below, Respondent’s management style of totally relying on staff contributed to the problems with the 2002 Primary that are at issue in this proceeding. PRE-ELECTION PLANNING The 2002 Primary represented a considerable challenge for Respondent, who was relatively inexperienced. As a result of legislative and congressional redistricting, the number of precincts in Broward County went from 619 for the 2000 election to 809 for the 2002 election. For the 2002 election there were approximately 500 polling places throughout the county.5 New touch-screen voting equipment was utilized for the first time in the primary election, which required training of staff and poll workers. That training was conducted. These voting machines replaced the infamous punch card ballots that had been used in the 2000 Presidential election. For the first time provisional ballots were utilized. A provisional ballot would be issued to an individual when his or her name could not be located in the precinct register. The provisional ballot would be counted only if it was subsequently verified that the voter was in the proper precinct. While the use of provisional ballots required training for poll workers, there was no evidence that the use of provisional ballots delayed the opening of any precincts or contributed to any precinct’s failure to comply with Governor Bush’s Executive Order. Each county is divided geographically into voting precincts. Each precinct has its own poll workers, including a precinct clerk and a deputy precinct clerk. For the 2002 Primary (809 precincts and approximately 500 polling places), Respondent’s staff determined that a total of 4,941 precinct poll workers were needed to conduct the election. Poll worker recruitment and training is an essential part of conducting an election. Ms. Nesbit and her department recruited experienced poll workers using a computer data base of poll workers who had worked prior elections and recruited new poll workers at community functions and from business, educational, and governmental entities. There was insufficient evidence to establish that there were too few poll workers recruited or that the poll workers were inadequately trained. The poll workers were provided appropriate checklists and appropriate instructions as to how and when to report for duty. To prepare for the 2002 Primary, weekly staff meetings were held to assess the BCSOE Office’s readiness for the election. On the Friday before the Tuesday election, Respondent met with all the managers in the office. Based on the reports that were provided, Respondent reasonably concluded that the office was ready for the election. The VEC is responsible for putting together a box of supplies that is referred to as the “gray box.” Included in the gray box are various signs, ballots, envelopes, and other supplies that are needed by the poll workers. The VEC is also responsible for placing additional voting materials into what is referred to as the precinct’s “blue bag”. The blue bag contains materials that are essential to the opening of the poll. Among other items, the blue bag contains the poll register (which is a list of the precinct’s eligible voters), the precinct’s Personal Electronic Ballots (which are necessary to activate the precinct’s voting machines), and a checklist (which the precinct clerks are to follow to make sure that the election is properly conducted). The precinct clerk is in charge of the precinct’s polling place the day of the election, but his or her official duties begin the day before election day. The VEC is responsible for arranging delivery of the voting equipment and the gray box to each precinct at its polling place prior to election day. A trucking company was hired for this purpose for the September 2002 primary election. The precinct clerk is responsible for visiting the polling place the day prior to the election to verify that the equipment and the gray box have been delivered. In the gray box is a white form that the precinct clerk is responsible for taking to the regional office when the clerk picks up the blue bag. The precinct clerk uses the form to verify that the correct number of voting machines and all required materials in the gray box have been delivered to the precinct’s polling place. The precinct clerk also verifies that he or she will be able to open the facility on election day. The VEC is responsible for delivering all blue bags to the appropriate regional site. The precinct clerk is responsible for going to the appropriate regional site to pick up the blue bag the day before the election. The precinct clerk must empty the contents of the blue bag while at the regional center and, using a checklist, verify in front of a regional office staff person that all items that are required to be in the blue bag have been included. If all items are present, the precinct clerk and a regional center staff worker sign the checklist and the precinct clerk keeps the bag until it is time to open the polls the next morning. Any item missing from the blue bag should be secured before the precinct clerk leaves the regional office or arrangements should be made to deliver the missing item(s) to the polling place the next morning in time for the precinct clerk to open the precinct for voting by 7:00 a.m. Pick up of the blue bags for the 2002 Primary was to be between 1:00 p.m. and 4:00 p.m. for one regional center and between 9:00 a.m. and 1:00 p.m. at the other regional centers on the day before the election. The precinct clerk is responsible for opening and closing the poll and for overseeing the vote while the poll is open. The assistant precinct clerk performs the clerk’s duties if the clerk is absent or unable to perform his or her duties. The assistant clerk also answers the phone, deals with the public, and generally assists in the conduct of the election. CANCELLATIONS BY PRECINCT CLERKS On Friday, September 6, 2002, Ms. Nesbit learned that some individuals who had agreed to serve as precinct clerks had subsequently declined to serve. Ms. Nesbit made reasonable efforts to replace the precinct clerks who she knew had cancelled as of that Friday. On the day before the 2002 Primary, Ms. Nesbit and her staff spent the day talking to various poll workers about various problems. Ms. Nesbit heard during the day from more than one precinct clerk that there were long waiting lines at the regional centers (up to two hours) and that some precinct clerks had become frustrated and had left without picking up the precinct’s blue bag from the precinct’s regional site. Ms. Nesbit received no communication from any regional site that blue bags were not being picked up by precinct clerks and she did not know that those blue bags were being returned to the VEC until approximately 9:00 p.m. that evening when Damian Robinson, an employee of the BCSOE Office’s outreach department, told her that approximately 50 blue bags had been returned to the VEC because the blue bag had not been picked up at the regional site by a precinct clerk. Mr. Robinson also told her that a fax had been sent to her with a list of the precincts whose blue bag had not been picked up and a list of the precincts whose blue bag was incomplete when it was picked up. Ms. Nesbit had been working all day in an area that was not close to the fax machine and was unaware that the fax had been sent. Ms. Nesbit retrieved the fax, which was not introduced as an exhibit. Ms. Nesbit testified that there were 30 to 35 precincts listed on the fax, but she did not remember the number of precincts on each list. By midnight, there were approximately 15 blue bags at the VEC that had not been picked up. The total number of incomplete bags that had been picked up was not established and it was not established what was missing from each bag. If an essential item, such as a poll register, was missing from a blue bag, the precinct clerk could not open the precinct’s polling place for voting until someone from the BCSOE Office delivered the missing item to the precinct’s polling place. Ms. Nesbit saw Mr. Foeman and Ms. Adams shortly after she saw Mr. Robinson and read the fax. Ms. Nesbit gave the information she had received to Mr. Foeman and Ms. Adams. Ms. Nesbit proposed to Ms. Adams and Mr. Foeman that sufficient staff of the BCSOE Office be called that night and be ordered to appear at the VEC the following morning at 5:00 a.m. for the purpose of delivering each undelivered bag and missing material to the appropriate precinct. Ms. Nesbit contemplated that poll workers (other than the missing precinct clerk) would be present at the polling place and that one of those workers could substitute as the precinct clerk. Ms. Adams informed Ms. Nesbit that they were not going to call BCSOE Office employees at that time of night. As she and Mr. Foeman turned and left Ms. Nesbit, Ms. Adams said to Mr. Foeman: “We’ll take care of this.” Ms. Nesbit received no further instructions from any of her supervisors that night. Respondent returned to her home at approximately 9:00 p.m. on the day before the 2002 Primary. When she left, she knew that some precinct clerks had cancelled, but she relied totally on Ms. Nesbit and four employees under Ms. Nesbit’s supervision, to resolve the problem. Shortly after Respondent returned home, Mr. Riley informed her by telephone that approximately 15 blue bags had been returned to the VEC and that a news reporter had contacted him about the matter. Respondent’s reaction was to try to contact a fellow SOE for advice. After several calls, Respondent spoke with Gertrude Walker, an experienced SOE from St. Lucie County, Florida. After Respondent told her about the undelivered blue bags, Ms. Walker told Respondent that she had a serious problem and that she should immediately make arrangements to have staff available to deliver the blue bags to the appropriate precinct and to make sure the precinct opened on time. The telephone call between Respondent and Ms. Walker occurred around midnight on the eve of the election. Ms. Walker specifically advised Respondent to wake staff up and have them ready for action the next morning. Respondent knew about the problems with the undelivered bags for almost three hours before she talked to Ms. Walker. Why Respondent felt the need to verify with another SOE that the undelivered blue bags constituted a serious problem was not clear. Why she did not follow Ms. Walker’s advice was also not clear.6 Instead, Respondent tried to contact Mr. Foeman at his office and at his home. When she could not reach him, she left a voice message ordering him to make sure that all precincts opened on time. There was no evidence that Respondent talked to Ms. Adams or Ms. Nesbit that evening. Ms. Adams called Linda Levinson, the BCSOE Office Assistant Director of Finance and Administration, at 4:00 a.m. the morning of the 2002 Primary and ordered her to report to the VEC immediately. Ms. Adams was Ms. Levinson’s direct supervisor. As will be discussed below, Ms. Levinson helped deliver blue bags to precincts that morning. POLLS MUST OPEN AT 7:00 A.M. Section 100.011(1), Florida Statutes, regulates the opening and closing times for polls as follows: The polls shall be open at the voting places at 7:00 a.m. on the day of the election, and shall be kept open until 7:00 p.m., of the same day, and the time shall be regulated by the customary time in standard use in the county seat of the locality. Respondent knew that polls had to be open at 7:00 a.m. on the day of the election. THE EXECUTIVE ORDER On September 10, 2002, Governor Bush entered the following Executive Order Number 02-248: WHEREAS, today, September 10, 2002, is the regularly-scheduled date for the conduct of primary elections throughout the state; and WHEREAS, the Secretary of State has reported to me that there have been substantial delays in the opening of certain polling places in Broward and Miami-Dade Counties; and WHEREAS, today’s election is the first time that many election officials will have had an opportunity to implement the major technological and procedural changes mandated by the recent wholesale revision of our state’s election code; and WHEREAS, under this unique combination of circumstances, there is a possibility that certain residents of our state could be deprived of a meaningful opportunity to vote and that certain election officials will be unable to conduct an orderly election; and WHEREAS, in light of the above-described conditions and in an abundance of caution, the Secretary of State has requested that I order that polling places throughout the state remain open for an additional two hours beyond their regularly-scheduled closing times; and WHEREAS, the Secretary of State has made the request after consultation with the Attorney General of Florida, the President of the Florida State Association of Supervisors of Elections, and the chairmen of the Florida Republican and Democratic parties; NOW, THEREFORE, I JEB BUSH, as Governor of Florida, by virtue of the authority vested in me by Article IV, Section 1(a) of the Florida Constitution, by the Florida Elections Emergency Act, and by all other applicable laws, do hereby promulgate the following Executive Order, to take immediate effect: I hereby declare that, based on the above- described conditions, a state of emergency exists. In order to ensure maximum citizen participation in the electoral process and to protect the integrity of the electoral process, for today’s election all polling places in the state shall remain open for two hours beyond their regularly scheduled closing times. FACTS DEEMED ADMITTED7 A total of 24 precincts in Broward County failed to open by 7:00 a.m. on September 10, 2002. In the list that follows, the precinct number is followed by the time that morning that precinct actually opened with the exception of precinct 5K, whose opening time was unknown. The following list contains 23 precincts, with each listed in the order in which it appears as a separate count in the Petitioner’s Order of Probable Cause. In addition to the precincts listed below, Precinct 13D opened five minutes late. Precinct 13D is not included in the following list because no count in Petitioner’s Order of Probable Cause was based on the failure of that precinct to open at 7:00 a.m. Precinct 50C (8:00 a.m.) Precinct 10D (7:30 a.m.) Precinct 11D (7:30 a.m.) Precinct 5E (7:20 a.m.) Precinct 7E (8:45 a.m.) Precinct 3F (8:30 a.m.) Precinct 5K (unknown) Precinct 15K (7:30 a.m.) Precinct 9M (9:15 a.m.) Precinct 31N (7:55 a.m.) Precinct 38N (7:55 a.m.) Precinct 10R (7:30 a.m.) Precinct 18V (10:00 a.m.) Precinct 23V (8:00 a.m.) Precinct 11W (10:00 a.m.) Precinct 21X (7:15 a.m.) Precinct 22X (9:00 a.m.) Precinct 23X (7:10 a.m.) Precinct 32X (12:20 p.m.) Precinct 37X (8:30 a.m.) Precinct 62X (11:00 a.m.) Precinct 63X (8:30 a.m.) Precinct 65X (11:00 a.m.) The following 32 Broward County precincts failed to comply with Executive Order Number 02-248 by failing to remain open for two hours beyond their regularly scheduled closing time of 7:00 p.m. on September 10, 2002: 13A, 17A, 19C, 22C, 24C, 21E, 1G, 3G, 6G, 11J, 19J, 24J, 15L, 16L, 27M, 38M, 40N, 51Q, 36R, 75R, 1T, 12T, 7U, 34V, 35V, 36V, 44V, 8W, 12Y, 14Y, 7Z, and 23J. These precincts are listed in the order they appear in Counts 24-55 of the Order of Probable Cause. In addition to the foregoing, the following facts were deemed admitted based on Respondent’s failure to respond to Petitioner’s First Request for Admissions: Thirteen precincts opened late due to a lack of election supplies and the remainder opened late due to a lack of personnel. Because of delays in opening the polls in Broward and one other county on September 10, 2002, Governor Bush issued Executive Order Number 02-248 requiring all polling places in the State of Florida to remain open for an additional two hours beyond their regularly-scheduled closing time or until 9:00 p.m. The Broward County SOE Office received Governor Bush’s Executive Order at 3:41 p.m. Miriam Oliphant instructed her staff not to say anything about the Executive Order until she gave further instructions. Respondent, upon receiving the Executive Order at 3:41 p.m., assigned Rick Riley, an independent contractor hired by the SOE’s Office, the task of writing a press release to the person in charge of each precinct. Mr. Riley made the final revisions to the press release at 4:49 p.m. after Walter Foeman completed his last review. It took from 3:41 p.m. until approximately 6:15 p.m. for Miriam Oliphant’s staff and volunteers to begin notifying the [809] precincts.[8] The following problems occurred at various precincts: 19 precincts could not run a zero tape 1 precinct had incorrect time precinct had incorrect date precinct locations were unable to select [political] parties 2 precincts did not have an ADA voting unit 4 precincts did not have a cellular phone 6 precincts did not have registers 23 precinct clerks did not pick up supplies 2 precincts did not receive communication package or activation card BLUE BAG DELIVERY The scene at the VEC was chaotic on the morning of the election with no one, including Respondent, taking charge or attempting to organize the bag delivery in a rational manner. Respondent testified that she panicked that morning because she was very angry with her staff, who she believed had let her down. Shortly before 6:00 a.m., Respondent ordered Mr. Foeman to get the blue bags and other materials delivered without giving further instructions and without devising a rational plan for such delivery. Ms. Levinson delivered three blue bags and opened three precincts in the Pembroke Pines area that morning. She was not instructed where to go and got lost. Ms. Levinson opened her last precinct around noon on the day of the election. Mr. Riley was recruited to deliver blue bags. He could not testify to how many he delivered, where he delivered them, or when he delivered them. He could not testify that the precincts to which he delivered opened by 7:00 a.m. Respondent delivered blue bags that morning. She was in a van with her driver, Mike Lindsay (a representative of the Department of State, Division of Elections), Respondent’s attorney, and Jimmy Davis (an employee of BCSOE Office outreach program). Respondent’s group did not deliver the last blue bag until shortly after noon on the day of the election. There was no evidence as to whether the other three blue bags were delivered in time for the precincts to open at 7:00 a.m. Respondent’s group had difficulty locating at least one precinct. Respondent could not testify whether her group had a map or accurate driving directions to each precinct. Michelle Feinberg was a precinct clerk for a precinct in Plantation for the 2002 Primary. When Ms. Feinberg picked up her precinct’s blue bag from the regional center the day before the election she inventoried the bag and discovered that it lacked essential voting material (including the precinct register). Staff at the regional center told her that the missing material would be delivered to her precinct in time for her to timely open the poll. That voting material was not delivered to the precinct on the morning of the election in time for the precinct to open by 7:00 a.m. The poll opened approximately 30 minutes late because the voting materials were not delivered on time. There was insufficient evidence to identify the other employees who delivered blue bags and other materials to the various precincts. Respondent knew shortly after 9:00 p.m. on September 9, 2002, that approximately 15 blue bags had not been picked up by the precinct clerk. She knew that the precinct could not open without the blue bag. She also should have suspected that each precinct clerk who failed to pick up the precinct’s blue bag would likely not show up for duty the next day. Respondent knew that she was mandated by statute to open all precincts for voting at 7:00 a.m. the next day. After learning of the problem with the blue bags, Respondent failed to take reasonable action either the evening before the election or the morning of the election to ensure that each blue bag and other required voting material would be delivered to the appropriate precinct. Likewise, she failed to take reasonable action either the evening before the election or the morning of the election to ensure that the precincts whose clerk had not picked up the precinct’s blue bag the day prior to the election would be staffed with a precinct clerk. FAILURE TO COMPLY WITH THE EXECUTIVE ORDER The BCSOE Office received Governor Bush’s Executive Order 02-248 at 3:41 p.m. on the day of the election. Respondent immediately instructed Mr. Riley to prepare a memorandum to the poll workers pertaining to the extended hours for the polls and basic instructions on how to close the polls. Respondent further instructed her staff not to call precincts until they had the memorandum. Mr. Riley made the last revision of the memorandum at 4:49 p.m. It was not until 6:04 p.m. that Respondent gave the memorandum to Ms. Nesbit and instructed her and assigned staff to read the memorandum to each precinct clerk. The following is the memorandum (Memorandum): Due to delays in the opening of certain polls, voting for the September 10, 2002, primary election has been extended by Governor Jeb Bush, for all polling locations throughout the State of Florida (pursuant to Executive Order 02-248), for an additional two hours beyond their regularly-scheduled closing time, from 7 pm till 9 pm. After 7 pm the following voting procedures will be in effect. When the Personal Electronic Ballots (PEB) is [sic] inserted, the herein below listed questions will appear: Close menu options, follow the sequence below. Close terminal Lock terminal Press no For each voter after 7 pm, and until 9 pm the poll worker that is activating the ballot shall press the box designated for no, and the ballot page will appear. Please due (sic) not press the close terminal until 9 pm. All terminals should be closed using the green master Personal Electronic Ballot (PEB) at 9 pm. Carol Hill and her staff were responsible for copying the Memorandum and for dividing the precincts into call lists. Each participating staff member was given a copy of the Memorandum and a list of precincts with telephone numbers to call. It took approximately ten minutes for Carol Hill’s staff to copy the memorandum and to make the calling assignments. Errors were made while making the calling assignments. Some of the precincts were on the calling lists more than once while other precincts were omitted. As a result, some precincts received two calls from staff while others received none. After approving the contents of the Memorandum, Respondent had no further involvement with advising the 809 precincts that the Governor had extended the voting day by two hours. Respondent did not participate in the actual calling of the precincts or in making the call assignments. Respondent testified that she did not know that some polls had closed at 7:00 p.m. until the next day. There was no rational explanation for the time that elapsed from the time the BCSOE Office received the Executive Order (3:41 p.m.) until the time staff began contacting poll workers (6:15 p.m.). Respondent knew that she was responsible for ensuring that all precincts complied with the Executive Order. Respondent abdicated that responsibility to her staff without providing any oversight. Petitioner established that some of the 32 precincts that failed to comply with the Executive Order did so because the precinct clerk was not notified of the Executive Order, despite having an operable telephone.
Recommendation Based on the foregoing findings of fact and conclusions of Law, it is RECOMMENDED that Petitioner enter a Final Order that finds Respondent guilty of two violations of Section 104.051(2), Florida Statutes, and imposes against her an administrative fine in the total amount of $2,000.00. DONE AND ENTERED this 29th day of August, 2005, in Tallahassee, Leon County, Florida. S CLAUDE B. ARRINGTON 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 29th day of August, 2005.
