The Issue The issue for determination is whether Respondent committed the offenses set forth in the Order of Probable Cause issued June 1, 2007, and, if so, what action should be taken.
Findings Of Fact In the 2006 election, Mr. Lunkins was a candidate for the Florida Senate, District 32. On or about April 20, 2005, Mr. Lunkins filed a State of Florida Appointment of Campaign Treasurer and Designation of Campaign Depository for Candidates form (DS-DE-9), designating himself as his campaign treasurer. By letter dated April 26, 2005, and sent on the same date, to Mr. Lunkins from Kristi Reid Bronson, Chief, Bureau of Election Records, Division of Elections, Ms. Bronson provided Mr. Lunkins with a user identification number and initial password, which allowed him to access the Division of Elections’ electronic filing system. The letter from Ms. Bronson was sent to the address provided to the Division of Elections. Further, Ms. Bronson’s letter contained information about filing campaign treasurer reports. She advised Mr. Lunkins that all candidates filing their campaign treasurer’s reports with the Division of Elections were required to file the reports using the electronic filing system. Also, she advised him that Chapter 106, Florida Statutes, the 2005 Calendar of Reporting Dates, and the 2004 Candidate and Campaign Treasurer Handbook were available for printing on the Division of Elections' website. By letter dated July 12, 2006, and sent on the same date, from Ms. Bronson to Mr. Lunkins, she notified him, among other things, that he had failed to file his 2006 Q2 Campaign Treasurer’s Report, which was due on July 10, 2006. By a second letter dated August 30, 2006, and sent the same date by certified mail, from Ms. Bronson to Mr. Lunkins, she notified him, among other things, that he had failed to file his 2006 Q2 Campaign Treasurer’s Report, which was due on July 10, 2006. On September 1, 2006, Mr. Lunkins claimed and received Ms. Bronson’s certified letter dated August 30, 2006. Mr. Lunkins failed to file his 2006 Q2 Campaign Treasurer’s Report, which was due on July 10, 2006. Mr. Lunkins’ failure to file his 2006 Q2 Campaign Treasurer’s Report was willful.
The Issue Whether Petitioner violated the Florida Election Code as alleged in the Order of Probable Cause entered November 25, 2002.
Findings Of Fact Chapters 97 through 106 comprise the Florida Election Code (Code). Pursuant to the Code, the Commission is specifically empowered to enforce the provisions of Chapters 104 and 106, Florida Statutes. Mr. Smith is a principal in Smith Brothers Paint and Body Shop and runs the daily operations of the business. In addition to painting and repairing motor vehicles, he has a wrecker service. He ran for county commission in Escambia County in 1996 but was not elected. He ran again in 2000 and was successful. Allegations of impropriety surrounding the 2000 race caused the Commission to conduct an investigation into Mr. Smith's campaign practices. When Mr. Smith ran for the position of county commissioner in 1996, his campaign treasurer was Lance Simmons. Mr. Simmons was a certified public accountant and Mr. Smith's friend. Mr. Simmons provided this service at no charge. The campaign financing reports prepared by Mr. Simmons were correct and professional. Lynn Kowalchyk, Assistant Supervisor of Elections in Escambia County, who has worked for the Supervisor of Elections in Escambia County for 25 years, opined that the submissions for that campaign were some of the best the Supervisor of Elections has received. Because Mr. Smith lost the election, he felt too embarrassed to ask Mr. Simmons to serve as his campaign treasurer for the 2000 race. He decided that he would serve as his own treasurer. Mr. Smith ran for county commissioner in District 5, which is the largest district in Escambia County, Florida. The district comprised the northern part of the county, which is more sparsely settled than the other districts in the county. In fact, District 5 comprises about 70 percent of the landmass of Escambia County. A great distance must be traveled to get from Mr. Smith's business to most places in the district and from place to place in the district. Mr. Smith decided that it was more important to engage in person-to-person campaigning in his large district than to spend time doing the detailed work of learning the complexities of the election laws, complying with the laws, and submitting correct reports. Mr. Smith received the 2000 edition of the "Candidate Handbook on Campaign Financing," which was published by the Florida Department of State. He had previously received the 1996 handbook. He signed statements in 1995 and 1999 certifying that he had read and that he understood the material presented in the handbooks. His testimony that he did not read either of them is accepted as fact. Mr. Smith had worked on one of his own campaigns and on other campaigns and felt as though he already knew all he needed to know about election laws. He concluded that if he needed additional information, he could get it from staff in the Supervisor of Elections Office. Mr. Smith first filed as a candidate for the 2000 election on October 20, 1999. Subsequent to filing he received at least ten notices from the Supervisor of Elections Office that members of the office staff were available to advise him with regard to the rules governing elections. Mr. Smith's routine during the campaign was to work at his place of business in the morning and then to go to his district and conduct his campaign. He gave documentation recording contributions and expenditures to his elderly mother, a widow of 65 years. His mother kept notes on a legal pad and organized the documents so that they could be reported. Mr. Smith's mother had cancer, heart problems, and arthritis and this may have affected her accuracy in preparing reports. Mr. Smith was unaware of the serious nature of her illnesses during the time she was working on the campaign. Mr. Smith's mother died December 11, 2002. Mr. Smith's brother also helped with the campaign records. He was a schoolteacher, and each evening during the campaign he would help Mr. Smith. His brother died one week after Mr. Smith's electoral victory. Counts 1-4. Allegations involving Section 106.021(3) prohibiting expenditures from other than the campaign treasury (Counts 1-4). (Count 1). On October 10, 2000, Mr. Smith purchased stamps from the U. S. Post Office. A check in the amount of $495 was presented in payment. The check was drawn on the checking account of a company titled Environmentally Friendly Chemicals (EFC), of which Mr. Smith is a part owner. This occurred because Mr. Smith inadvertently picked up the EFC checkbook instead of the campaign checkbook. Mr. Smith's inattention was the cause of the error. The campaign subsequently reimbursed EFC. (Count 2). Campaign check 2088 was written to Frankie Peters in the amount of $50 to reimburse Ms. Peters who had paid for a sign at the Tate High School ballpark. Mr. Smith permitted this because the sign could not have been timely purchased if it had been paid with a check from the campaign treasury. (Count 3). Someone named Nacie Smith paid for postage in the amount of $150 on behalf of the campaign during October 2000. Campaign check number 2115 was used to reimburse Ms. Smith, and Mr. Smith signed this check. (Count 4). Mr. Smith had printing done for the campaign by a firm named Pengraphix pursuant to an order placed October 31, 2000. This order was placed immediately prior to the election. Part of the order was paid from the campaign account in the amount of $852.97. The balance was in dispute but was eventually compromised in the amount of $1,884.92. This amount was paid not from the campaign account, but rather, directly to Pengraphix by a friend named Donald "Mike" Murphy. The payment by Mr. Murphy was effected after the campaign had concluded. Mr. Murphy was a person to whom Mr. Smith had provided a loan several years prior to 2000. These four transactions are expenditures that were not paid from the campaign treasury. However, as will be discussed in the Conclusions of Law in more detail below, the accidental use of the EFC checkbook in Count 1, did not demonstrate willfulness. Count 5. Allegation involving Section 106.021(3) prohibiting a candidate from receiving contributions except through the campaign treasurer. This allegation is supported by the evidence recited above regarding Mr. Murphy, if one concludes that the money provided to Pengraphix represented a contribution as that term is defined in Chapter 106, Florida Statutes. Whether or not the facts support a finding that the cited statute prohibited this transaction is discussed in the Conclusions of Law, below. Counts 6-29. Allegations involving Section 106.05 requiring funds received to be deposited within five days of receipt. Mr. Smith reported 20 contributions on his Campaign Treasurer's Report (CTR), which covered the period October 20, 1999 through December 31, 1999. One of the contributions described by Mr. Smith as being a $500 check, was later reported, in an amended CTR, to be five separate $100 cash contributions. The campaign bank account was not opened until January 7, 2000, and the last contribution reported on the CTR was November 29, 1999. Therefore, 24 contributions were received but not deposited in the campaign account until more than five days subsequent to receipt. Mr. Smith was unaware of the statutory requirement that contributions must be deposited in the campaign treasury within five days of receipt. However, his willful ignorance of the requirement translates into willful violations. Counts 30-79. Allegations involving Section 106.07(5) prohibiting a candidate from certifying to the correctness of a campaign treasurer's report that is incorrect, false, or incomplete. Mr. Smith filed original CTRs for the following periods: (Count 30) October 20, 2000 to December 31, 1999. (Count 31) January 1, 2000 to March 31, 2000. (Count 32) April 1, 2000 to June 30, 2000. d. (Count 33) July 1, 2000 to July 31, 2000. (Count 34) July 29, 2000 to August 11, 2000. (Count 35) August 12, 2000 to August 31, 2000. (Count 36) September 1, 2000 to September 8, 2000. (Count 37) September 9, 2000 to September 28, 2000. (Count 38) September 29, 2000 to October 13, 2000. (Count 39) October 14, 2000 to November 2, 2000. (Count 40) November 2, 2000 to December 31, 2000. He filed amended CTR's on January 12, 2000 (Count 41), April 19, 2000 (Count 42), and August 16, 2000 (Count 43). When a complaint that Mr. Smith had violated the laws governing campaign financing was filed against him in September 2001, he became motivated to try to correct CTR's that he had filed. He filed amended CTRs on September 24, 2001, October 18, 2001, April 2, 2002, April 24, 2002, and June 5, 2002 (Counts 44-79). He filed a total of 11 CTRs and 39 amendments. The parties stipulated, and it is found as a fact, that all of the original CTRs he filed, and all of the amendments he filed, were incomplete or incorrect. Mr. Smith worked diligently with Ms. Kowalchyk to correct the reports, once he discovered in September 2001, that he had been accused of wrongdoing. Ms. Kowalchyk worked on Mr. Smith's CTRs on her own time. Even Bonnie Jones, the Supervisor of Elections, attempted to correct his CTRs, but all were frustrated in the attempt. His reports were in complete disarray. Ms. Jones suggested in a letter dated October 8, 2001, that Mr. Smith refer this matter to his accountant, believing that an accountant might bring order to the chaotic records. He did not act on this advice. As noted above, Mr. Smith relied on his mother and his brother, and perhaps other family members to prepare accurate reports. Nevertheless, he was the campaign treasurer and he personally signed each CTR beneath bold face type which recited, "It is a first degree misdemeanor for any person to falsify a public record (ss.839.13 F.S.)" and despite the words over the signature line, where he placed his signature, which stated, "I certify that I have examined this report and it is true, correct and complete." It is specifically found that Mr. Smith's submission of incorrect CTRs was not motivated by an intention to hide any wrongdoing. His dereliction was due, rather, to a cavalier attitude with regard to complying with the technical aspects of the laws addressing campaign financing. This attitude continued until a complaint was filed. For reasons more fully explained in the Conclusions of Law, it is found as a fact that Mr. Smith is guilty of Counts 30-43, and not guilty of Counts 44-79. Counts 80-81. Allegations involving Section 106.11(3) prohibiting a candidate from incurring an expense for the purchase of goods or services without sufficient funds on deposit in the primary campaign depository. Although the Order of Probable Cause indicates that Mr. Smith was charged under Section 106.11(4), he should have been charged under Section 106.11(3) the Code in effect during the alleged misconduct. The wording of Section 106.11(4), Florida Statutes (2002), is identical to that found in Section 106.11(3). Because all parties understood the nature of the charge, the citation to a later version of the Florida Statutes does not mean that Mr. Smith may not be found to be in violation of it. Reference to the Statement of Findings reveals that the two counts alleged refer to services provided by Pengraphix, which is a printing house. The CTR for the period November 2, 2000 to December 31, 2000, reported two expenditures made to Pengraphix. One was for $864.49 and the other was for $1844.19, and both were reported on the CTR to have been made December 1, 2000. Subsequently, an amended CTR was filed September 24, 2001, which reported only an expenditure of $864.49 to Pengraphix. On June 5, 2002, in the fifth amendment to the termination CTR, Mr. Smith reported an expenditure on December 1, 2000, of an additional $1844.19, to Pengraphix. It is concluded from these reports that two obligations of $864.49 and $1844.19, for a total of $2708.68, were incurred in favor of Pengraphix. Because the bank records of the campaign account subsequent to December 1, 2000, reflect no expenditure in either individual amount, or in the aggregate amount, it may be concluded that the debt was not paid from the campaign account at all. The bank statement for the campaign treasury for the months of December 2000 and January 2001 never had a balance greater than $613.97 in it, so there was no money available from that source to pay the two expenditures. Mr. Smith addressed the foregoing by stating that there was a disputed bill from Pengraphix in the amount of about $2,600, and that he spent almost three months attempting to reach a settlement. The amount was compromised at $1,850. Mr. Smith further stated that when the printing was ordered the cost was not revealed. It must be concluded that until the amount was liquidated, Mr. Smith could not pay the bill. However, Mr. Smith must have known by December 1, 2000, that the liquidated amounts for the two jobs were $864.49 and $1844.19. At the time the jobs were ordered, which cannot be determined from the evidence, funds sufficient to pay the invoices may have been available. The evidence was insufficient to demonstrate with any certainty that the funds were not available. Accordingly, is not found by clear and convincing evidence that the money due and owing Pengraphix was not available in the campaign treasury at the time the debt was incurred. Accordingly, Mr. Smith is not guilty of Counts 80 and 81. Counts 82-83. Allegations involving Section 106.11(3), requiring a candidate to pay for previously incurred expenses for the purchase of goods and services upon delivery and acceptance of the goods and services. Reference to the Statement of Findings reveals that these two counts address the two orders for printed matter placed at Pengraphix. It is clear that these purchases were not paid at the time of delivery and acceptance. However, the proof adduced at the hearing failed to demonstrate when the amounts were liquidated. It is clear, however, that at some point prior to December 1, 2000, the amounts were known, or at least discoverable, and therefore payable. It is found by clear and convincing evidence that Mr. Smith violated the charged portion of Section 106.11(3). Accordingly, he is guilty of Counts 82-83. Count 84. Allegation involving Section 106.141(1) condemning the failure of a candidate to properly dispose of surplus campaign funds subsequent to being elected. The general election that resulted in Mr. White's victory was held November 7, 2000. The ending balance shown on the campaign treasury bank statement on November 30, 2000, was $613.97. The ending balance shown on the campaign treasury bank statement on December 29, 2000, was $597.97. The ending balance shown on the campaign treasury bank statement on January 31, 2001, was $4.78. The imposition of bank fees on February 9, 2001, resulted in a zero balance in the account that was reflected on the February 2001 statement. The ninetieth day following Mr. Smith's election was February 5, 2001. Though de minimis, a violation of the statute occurred, and he is guilty of Count 84. Counts 85-87. Allegations involving Section 106.141(1) prohibiting a candidate from accepting a contribution subsequent to being elected. Bank records of the campaign treasury indicate that a deposit to the account was made on January 2, 2001, in the amount of $187, and on January 3, 2001, in the amount of $100, almost two months after the election. An amendment to the CTR for the period November 2, 2000 to December 31, 2000, which was filed April 24, 2002, indicates that the candidate loaned the campaign $287. Mr. Smith explained that the two deposits were made so that a campaign debt could be paid. The sum of the two contributions plus the amount remaining in the account, $597.97, totaled $884.97 that was sufficient to cover a check for $864.19, which was, in Mr. Smith's words, ". . .payment of the substantial debt, $864.19." To what substantial debt he refers cannot be determined from the evidence of record but it is within 30 cents of the amount of the smaller of the two Pengraphix amounts reported as expenditures on December 1, 2000. In January 2001, a sum of money remained to be paid to Pengraphix. As noted above, this debt was compromised in the amount of $1,850. Mr. Smith did not have personal funds available to pay that amount, or money in the campaign treasury sufficient to pay that amount, so he prevailed upon his friend, Mr. Murphy, to pay the amount for him, and promised to repay Mr. Murphy with interest. Mr. Murphy did in fact pay Pengraphix $1884.92 to settle the debt owed by Mr. Smith. The difference between $1850 and the $1884.92 actually paid, most likely represents accrued interest. This payment was made, according to the Stipulation, on January 11, 2001. Mr. Smith repaid Mr. Murphy, by check in February 2002 in the amount of $1990. The exact day in February was not written on the date line on the check, but it cleared the bank on February 25, 2002. Whether or not these allegations of Counts 85-87 are supported by the cited statute, will be discussed in the Conclusions of Law, below. Count 88. Allegation involving Section 106.19(1)(a), prohibiting a candidate from accepting a contribution in excess of $500. This count addresses the payment by Mr. Murphy to Pengraphix discussed above. Whether or not the cited statute supports these allegations will be discussed in the Conclusions of Law, below. Count 89. Allegation involving Section 106.19(1)(b), condemning the failure of a candidate to report a contribution. This count addresses the payment by Mr. Murphy to Pengraphix discussed above. The transaction was not reported on any CTR with Mr. Murphy's name connected to it. Whether or not the cited statute supports these allegations will be discussed in the Conclusions of Law, below. Count 90. Allegation involving Section 106.19(1)(c), condemning the failure of a candidate to report a contribution. This count addresses the payment by Mr. Murphy to Pengraphix discussed above. The transaction was not reported on any CTR. Whether or not these allegations are supported by the cited statute will be discussed in the Conclusions of Law, below. Counts 91-94. Allegations involving Section 106.19(1)(d), prohibiting a candidate from making an expenditure prohibited by Chapter 106. These counts address the same facts pertinent to the events discussed in paragraphs 11-15, above. These facts support three violations of Section 106.021(3), as well as the three violations of Section 106.19(1)(d), as alleged. They are, however, multiplicious with three of the allegations recited as Counts 2-4. Mr. Smith's assets. Mr. Smith reported a net worth of $707,609, on his "Full and Public Disclosure of Financial Interests 1999." He testified that as a result of criminal charges and the current litigation, his net worth has decreased since 1999. He currently owns two parcels of real property worth more than $200,000 that is subject to mortgages in an unknown amount. He owns several vehicles including a 1995 Chevrolet Tahoe that he drives, and a new Chevrolet Yukon that his wife drives. He also owns a tow truck that is used in his business. His net worth cannot be determined by the evidence before the Administrative Law Judge. However, it is determined that he is not impecunious.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED: That a final order be entered which finds that Mr. Smith committed 44 of the violations alleged in the Order of Probable Cause and that he should be assessed a civil penalty of $5,000. DONE AND ENTERED this 25th day of June, 2003, in Tallahassee, Leon County, Florida. HARRY L. HOOPER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 25th day of June, 2003. COPIES FURNISHED: Robert R. Kimmel, Esquire Kimmel & Batson Post Office Box 12266 Pensacola, Florida 32581-2266 Eric M. Lipman, Esquire Florida Elections Commission 107 West Gaines Street The Collins Building, Suite 224 Tallahassee, Florida 32399-1050 Barbara M. Linthicum, Executive Director Florida Elections Commission 107 West Gaines Street The Collins Building, Suite 224 Tallahassee, Florida 32399-1050 Patsy Ruching, Clerk Florida Elections Commission 107 West Gaines Street Collins Building, Suite 224 Tallahassee, Florida 32399-1050
The Issue The issue for determination is whether Ms. Spence-Jones committed the offenses set forth in the Order of Probable Cause, filed September 1, 2006, and, if so, what action should be taken.
Findings Of Fact FEC received a sworn complaint against Ms. Spence-Jones from Mr. Dunn on or about January 20, 2006. Mr. Dunn alleged the following in his sworn complaint: Michelle Spence-Jones violated F.S. 104.271 with false and malicious charges against and about me on November 26, 27, 28, & 29th [sic] with thousands of campaign literature distributed to residents in the City of Miami, District 5. Along with a radio commercial with slander on radio stations . . . in Miami on November 29th election day by her campaign manager/advisor . . . The Michelle Spence-Jones campaign paid for individuals to vote for Michelle Spence-Jones $50 per vote! . . . F.S. 104.061. The City of Miami, Manager . . . violated F.S. 104.31 as documented in the Miami New Times article attached. Affidavits, campaign literature, and photograph were attached to the sworn complaint. Mr. Dunn’s sworn complaint asserted factually specific violations that Ms. Spence-Jones, in her campaign literature that was distributed on dates certain, made false and malicious charges against and about him; that, on election day, radio commercials by her campaign manager/advisor contained slander; that her campaign paid individuals to vote for her; and that the City of Miami’s Manager violated a specified statutory provision as documented in a news article, attached to his sworn complaint. Further, his sworn complaint cited statutorily specific violations for the factually specific violations— Sections 104.271, 104.061, and 104.31, Florida Statutes. An investigator with FEC investigated Mr. Dunn’s sworn complaint. After the investigation, a Staff Recommendation was prepared. The Staff Recommendation was submitted to FEC. The Staff Recommendation recommended that probable cause be found for the following: two counts for violating Sections 106.12(3), Florida Statutes; three counts for violating Section 106.143(1)(a), Florida Statutes; two counts for violating Section 106.1439(1), Florida Statutes; and one count for violating Section 106.19(1)(d), Florida Statutes. Further, the Staff Recommendation recommended that no probable cause be found for the following: violating Sections 104.061(2),104.271(2), and 106.15(3), Florida Statutes. On September 1, 2006, FEC filed an Order of Probable Cause finding probable cause to charge Ms. Spence-Jones with the following: Count 1: On or about November 28, 2005, [she] violated Section 106.12(3), Florida Statutes, prohibiting a person from spending petty cash on unauthorized items, when [she] spent $22,910 to pay campaign workers with cash. Count 2: On or about November 28, 2005, [she] violated Section 106.12(3), Florida Statutes, prohibiting a person from spending petty cash on unauthorized items, when [she] spent $1,090.75 cash for food and other supplies to several vendors. Count 3: Between November 23 and November 29, 2005, [she] violated Section 106.143(1)(a), Florida Statutes, by failing to mark prominently the political advertisement with the correct disclaimer, when she published the ad “Will a man rob God?” on the radio without the proper disclaimer. Count 4: Between November 23 and November 29, 2005, [she] violated Section 106.143(1)(a), Florida Statutes, by failing to mark prominently the political advertisement with the correct disclaimer, when she published the ad “Michelle Spence-Jones is a strong black woman...” on the radio without the proper disclaimer. Count 5: On or about November 26, 2005, [she] violated Section 106.143(1)(a), Florida Statutes, by failing to mark prominently the political advertisement with the correct disclaimer, when she published the flyer “Don’t Gamble on Rev. Richard Dunn” without the proper disclaimer. (Exhibit 15 attached to Report of Investigation). Count 6: Between November 23 and November 29, 2005, [she] violated Section 106.1439(1), Florida Statutes, by failing to mark prominently the electioneering communication with the correct disclaimer, when she published the ad stating, “... Again, I’m Michelle Spence- Jones, candidate for City of Miami Commission District Five. Happy Thanksgiving. May God continue to bless you and keep you well...” without any disclaimer. Count 7: Between November 23 and November 29, 2005, [she] violated Section 106.1439(1), Florida Statutes, by failing to mark prominently the electioneering communication with the correct disclaimer, when she published the ad stating, “...I’m Michelle Spence-Jones, candidate for City of Miami Commission District Five. As we recover from this year’s hurricane season, we were encouraged by the kindness of others who have given to their neighbors in their time of need...” without any disclaimer. Count 8: On or about November 28, 2005, [she] violated Section 106.19(1)(d), Florida Statutes, by making or authorizing an expenditure prohibited by Chapter 106, Florida Statutes, when [she] authorized her campaign treasurer to spend $24,000 to pay campaign workers and to purchase food with cash and subsequently ratified those cash expenditures by signing the 2005 termination report. Further, the Order of Probable Cause found no probable cause to charge Ms. Spence-Jones with the following: Section 104.061(2), Florida Statutes, prohibiting a person from giving or promising anything of value to a person intending to buy that person’s or another’s vote or to corruptly influence that person or another in casting his vote; Section 104.271(2), Florida Statutes, prohibiting a candidate from making false and defamatory factual statements with malice about an opposing candidate; and Section 106.15(3), Florida Statutes, prohibiting a candidate from using the services or any municipal officer or employee during working hours for furthering her candidacy for nomination or election to public office. Ms. Spence-Jones disputed the Order of Probable Cause and requested a hearing before the Division of Administrative Hearings. On January 16, 2007, Ms. Spence-Jones filed a Motion to Dismiss Proceeding for Lack of Jurisdiction or for Summary Final Order, together with one exhibit. On January 24, 2007, FEC filed a Response in Opposition, together with five exhibits.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Elections Commission enter a final order dismissing the Order of Probable Cause, Counts one through eight, for lack of jurisdiction. DONE AND ENTERED this 21st day of February, 2007, in Tallahassee, Leon County, Florida. S ERROL H. POWELL 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 21st day of February, 2007.
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 The issue is whether Respondent violated various election laws and, if so, what penalty should be imposed.
Findings Of Fact Respondent is a licensed physician. For many years, he practiced as a heart surgeon in Springfield, Illinois. After developing a hand tremor resulting from a medical condition, Respondent relocated to Naples, where he had vacationed for several years. In early 1996, after moving to Naples, Respondent opened a walk-in clinic in Naples. At all material times, Respondent has worked at the clinic about 60 hours weekly. Respondent has never assumed responsibility for financial matters or record-keeping at his home or in his office. At home, these responsibilities are borne by his wife of 28 years. At the office, these responsibilities are assumed by his office manager. Prior to fall 1996, Respondent had never had any significant experience in politics. However, dissatisfied with aspects of the training and qualifications of certain personnel who responded to emergency medical calls, Respondent decided to run in the fall 1996 election for Seat 3 of the North Naples Fire and Rescue Commission. On July 1, 1996, Respondent obtained a "candidate packet" from the Filing Officer of the Office of the Collier County Supervisor of Elections. The packet contained considerable information, including treasurer's report forms; a list of key dates, including filing deadlines; a Division of Elections Candidate Handbook; copies of Chapters 99, 105, and 106, Florida Statutes; itemized contribution forms; and itemized expenditure forms. Without studying any of the information, Respondent signed and filed a Statement of Candidate on the same day that he picked up the candidate packet. The signed Statement of Candidate acknowledges that Respondent received, read, and understood the requirements of Chapter 106, Florida Statutes. On the same day, Respondent signed a form appointing himself as his campaign treasurer and designating The Huntington Bank as his campaign depository. The campaign bank account, which was a checking account, was titled, "Dr. Robert C. McGann Campaign Account for North Naples Fire District" and bore account number 02628208279. The only authorized signatories on the account were Respondent and his wife. The same bank also handled the checking account for Respondent's medical practice. On July 18, 1996, Respondent signed and filed a form titled, "Acknowledgment by Candidate." In this form, Respondent acknowledged that he had reviewed and understood various items, which he initialed. These initialed items included two items concerning the deadlines for filing campaign treasurer reports. On the same day, the Filing Officer provided Respondent with a two-sided document titled, "State of Florida 1996 Calendar and Election Dates." This document summarizes the deadlines for filing election reports and provides report-filing deadlines. For the First Primary, the filing deadlines are: August 2 for the period from July 1 through July 26; August 16 for the period from July 27 through August 9; and August 30 for the period from August 10 through August 29. For the Second Primary, the filing deadlines are: September 13 for the period from August 30 through September 6 and September 27 for the period from September 7 through September 26. The State of Florida 1996 Calendar and Election Dates requires that each candidate whose candidacy terminates as of the Second Primary must file his or her final report by December 30, 1996. Respondent filed six campaign treasurer reports. He signed each of the reports and filed each of the reports on time. The first allegation is that, "on multiple occasions," Respondent failed to timely deposit timely campaign contributions. Petitioner proved that Respondent failed to timely deposit campaign contributions on several occasions. However, Petitioner failed to prove that any of these failures was willful. The modest amounts do not invite a finding of willfulness, nor do the identities of the contributors, none of whom appears to be someone whom Respondent would wish to hide from public scrutiny. The preponderance of the evidence suggests only that Respondent's failures to timely deposit campaign contributions were due to his carelessness, and nothing in the record suggests that this carelessness was studied, purposeful, or otherwise calculated to avoid the requirements of the law. The second allegation is that Respondent failed to include his political party affiliation in a political advertisement. Petitioner proved that Respondent published at least two political advertisements that failed to disclose his political party affiliation. However, Petitioner failed to prove that these nondisclosures were willful. The nondisclosures occurred during the Republican primary elections. Failing to alert potential voters of Respondent's political affiliation could only hurt Respondent, as potential voters who found his campaign literature appealing might not be able to find the particular race in which Respondent was involved. In a larger sense, concealing his Republican affiliation hurt Respondent because he was running in a largely Republican area. The third allegation is that Respondent failed to use, in his political advertisements, the word "for" between his name and the office for which he was running. The stated purpose of this requirement is to alert potential voters that a candidate is not an incumbent. Petitioner proved that Respondent published at least two political advertisements that failed to include the word "for" between his name and the office for which he was running. However, Petitioner failed to prove that the failures were willful. The first advertisement ran during the First Primary, which included Respondent, the incumbent, and another challenger. The advertisement showed the incumbent's name followed by: "Incumbent- committed to the status quo." The advertisement showed the other challenger's name followed by: "Union Candidate." The advertisement showed Respondent's name followed by: "Candidate for Change." The whole thrust of Respondent's campaign in the First Primary was to change the policies of the North Naples Fire and Rescue Commission. Emphasizing his outsider status through the use of "for" would have served this purpose. The omission is thus due to neglect, not willfullness. The second advertisement evidently ran during the Second Primary because it mentions only the challenger, who eventually won this primary. The advertisement again emphasizes the outsider status of Respondent as an agent for change. Given this campaign theme, it is impossible to infer willfulness, rather than carelessness, in the failure of this advertisement to include "for" between Respondent's name and the position that he was seeking. The fourth allegation is that, "on multiple occasions," Respondent made expenditures from campaign funds other than by a check drawn on his campaign depository. Petitioner proved that Respondent made the following expenditures with funds not drawn from his campaign depository: $23 and $110 to Home Depot, $29 to Sam's Club, $6.15 to Mary Morgan, $25 to Office Depot, $30.60 to Office Depot, and $28 to Kinko's. Respondent reported each of these expenditures, but the campaign checking account does not reveal payments of these sums. However, Petitioner failed to prove that these acts were willful. With the exception of $6.15 given to Mary Morgan, the recipients of these sums are commercial establishments that provide goods and services of obvious usefulness to a political campaign. Mary Morgan is the Supervisor of Elections, whose office received $6.15, apparently in payment of some filing fee. Also, these relatively modest sums qualify as petty cash expenditures. The fifth allegation is that, "on multiple occasions," Respondent signed a check drawn on the campaign depository without sufficient funds on deposit in the campaign depository to pay the full amount of the check, to honor all outstanding checks, and to pay all previously authorized but unpaid expenses. Petitioner proved that Respondent's wife, who was an authorized signatory on the campaign checking account, signed a $507.15 check to Sir Speedy. The check is dated August 1, although the evidence does not establish that Sir Speedy received the check on that date. However, the evidence does establish that Sir Speedy presented the check for payment on August 6, at which time the bank honored the check and paid Sir Speedy $507.15. The bank statement for the campaign checking account reveals that the bank credited the account with a $500 deposit on August 2, leaving a balance of $2.30. The next activity was August 6, when the bank debited the account for the Sir Speedy check in the amount of $507.15, leaving a negative balance of $4.85, which increased the next day to a negative balance of $7.35 after the application of monthly checking fees. Although Respondent is responsible for the acts of his wife, as his agent in making this expenditure, Petitioner failed to prove that Respondent or his wife willfully delivered a campaign check without sufficient funds. If this had been their intent, their effort was stymied by the bank's honoring the check. In fact, they had no such intent. Although they probably did not know that this check would cause a negative balance of a few dollars, it is more likely that they delivered the check knowing that the bank would honor the check because the account had sufficient funds or, if it did not, it was short only a few dollars and the bank, consistent with its policy on their accounts, would nonetheless honor the check. Additional evidence that this was bank policy is the absence of any overdraft fee on the August or September bank statement. The sixth allegation is that, "on multiple occasions," Respondent failed to report a contribution required by law to be reported. Petitioner proved that Respondent received numerous contributions that he failed to report, including $500 from himself on August 2, $1000 from himself on August 19, $100 from Barry or Diane Flagg on August 16, $50 from Gordon Radcliff in late September, $50 from Thomas Jewell on September 26, $50 from David Grieder on September 26, and $100 from Peter or Carol Boyd on September 26. The evidence in support of the allegation that Respondent failed to report a contribution consists of seven contributions over a seven-week period. These omissions totaled $1850 out of a total reported contributions of $9414.75 (including $4500 in loans from Respondent); in other words, Respondent failed to report nearly 20 percent of the contributions. Bank records for the campaign checking account record only $6820 in deposits. Reporting contributions is arguably the most basic requirement of the applicable law. Respondent's reports reveal a knowledge of the requirement to report contributions. Respondent even testified that he understood that he was required to report contributions, as well as expenditures. Although he reported numerous contributions, he failed to report a considerable amount of contributions under circumstances that reveal that this failure to report was willful. The seventh and eighth allegations are, respectively, that, "on six occasions" each, Respondent certified to the correctness of a campaign treasurer's report that was incorrect, false, or incomplete and falsely reported or failed to report information required by law. Petitioner has proved numerous inaccuracies and omissions in the campaign reports filed by Respondent. To the extent that the seventh and eighth allegations cover the sixth allegation, Petitioner has proved a willful violation, but the same acts and omissions cannot provide grounds for double discipline under two different statutes. To the extent the seventh and eighth allegations cover other acts and omissions, besides the mere failure to report contributions, Petitioner has failed to prove willfullness. To the contrary, the many inaccuracies and omissions (apart from the violations covered by the sixth allegation) again appear to be the product of Respondent's carelessness, rather than a studied attempt to avoid complying with the reporting requirements imposed by law. Petitioner infers willfullness from Respondent's failure to respond to six certified letters from the County filing officer alerting him to the deficiencies in his previously filed reports. The cited deficiencies consist mostly of 22 contributions or expenditures lacking a date, six contributions or expenditures lacking an address (i.e., one contributor for which Respondent previously supplied an address, Office Depot for which Respondent supplied an address on a later report, the County Supervisor of Elections (twice; this is the employer of the filing officer), Kinko's in Naples, and Desk Top Results in Naples). There are two problems in using the unanswered letters as grounds for inferring willfullness. First, the letters ignore most of the deficiencies on which Petitioner relies. Most of these ignored items are facially evident, and the filing officer's failure to mention them does not assist Petitioner's effort in showing willfullness. Such items include the wrong reporting timeframes; the failure to identify the report as quarterly, first primary, etc.; and the failure to indicate whether the report is an original or amendment. Second, the letters only raise two claimed deficiencies--the failure to disclose dates and addresses for contributions and expenditures. Even as to these matters, the letters provide no basis for an inference of willfullness for several reasons. First, the filing officer sent all of the letters on the same date, December 6. The most recurring failing cited in the letters is the absence of dates for contributions and expenditures. The record suggests that Respondent's carelessness in recordkeeping rendered impossible any accurate amendment of his reports to add the dates. The situation might have been different if the filing officer had sent such a letter after Respondent had filed the first report without the required dates. As to that report, it would have been more likely that Respondent could have reconstructed the dates. As to subsequent reports, it is much more likely that the carelessness defense would have been unavailing, after Respondent would have received a specific demand for this information. Given the outcome of the case, the Administrative Law Judge has examined the sealed exhibit containing copies of Respondent's personal income tax returns for 1996 and 1997. There is no indication in these tax returns that a fine of $1000 would be excessive.
Recommendation It is RECOMMENDED that the Florida Elections Commission enter a final order imposing a $1000 fine against Respondent. DONE AND ENTERED this 14th day of July, 1999, 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 14th day of July, 1999. COPIES FURNISHED: Barbara Linthicum, Executive Director Florida Elections Commission The Capitol, Room 2002 Tallahassee, Florida 32399-1050 Steven Christensen, Clerk Florida Elections Commission The Capitol, Room 2002 Tallahassee, Florida 32399-1050 Michael T. McGuckin Assistant General Counsel Florida Elections Commission The Capitol, Room 2002 Tallahassee, Florida 32399-1050 Robert B. McKay Carney & McKay 1140 Franklin Avenue, Suite 201 Garden City, New York 11530
The Issue Whether Petitioners violated provisions of Chapter 106, Florida Statutes, as alleged in the Order of Probable Cause filed August 23, 2002.
Findings Of Fact Chapters 97 through 106, Florida Statutes, comprise the Florida Election Code (Code). Pursuant to the Code, the Commission is empowered specifically to enforce the provisions of Chapters 104 and 106, Florida Statutes. Mary McCarty was elected to the City Commission of Delray Beach, Florida in 1987. She was elected to the Palm Beach County Commission in 1990. She has been returned to that office in each subsequent election and she is currently a member of the Palm Beach County Commission. In November of 2002, she was elected to her fourth term as Chairman of the Palm Beach County Republican Executive Committee. The Committee to Take Back Our Judiciary was an unincorporated entity. It was a de facto committee, which, for reasons addressed herein, did not ever become a "political committee" as defined in Section 106.011(1), Florida Statutes. Ms. McCarty has run for public office six times and was successful on each occasion. Prior to each election she received from the Florida Secretary of State a handbook addressing campaign financing. She is familiar with the statutes and rules with regard to financing an individual campaign. Sometime before the Thanksgiving Holiday in 2000, Ms. McCarty received a telephone call from Roger Stone of Washington, D.C. Ms. McCarty knew Mr. Stone, who at various times had been a campaign operative for Senator Arlen Specter, had been involved in opposing the sugar tax amendment in Florida, and had been a consultant to Donald Trump, during his short-lived presidential campaign. Ms. McCarty was aware that Mr. Stone and Craig Snyder were principals of IKON Public Affairs, a business entity with offices in Washington, D.C., and Miami Beach, Florida. Roger Stone informed Ms. McCarty that he was forming a committee to raise funds for the purpose of taking action against the Florida Supreme Court. Mr. Stone stated that he had formed The Committee and that he wished for her to be the chairperson. She did not initially commit to undertake this responsibility. A few days after the conversation with Mr. Stone, Ms. McCarty received a facsimile draft of a fundraising letter that The Committee proposed to post. The facsimile was sent by Roger Stone from Washington. She made some suggested changes and returned it to the address in Washington from whence it came. Subsequently, she had a telephone conversation with Lora Lynn Jones of Unique Graphics and Design in Alexandria, Virginia. Ms. Jones was in the business of making mass mailings. Ms. McCarty told Ms. Jones that her name could be used on the fundraising letter although Ms. McCarty did not sign the fundraising letter. Nevertheless, the document was mailed to a large number of people and it bore the printed name, "Mary McCarty, Palm Beach County Commissioner." The first time Ms. McCarty saw The Committee's finished product it was in the form of a "Telepost, high priority communication." She first saw the "Telepost" when it arrived in her mailbox in early December 2000. The wording of the letter was different from the draft Ms. McCarty had seen earlier. Unlike the draft, it targeted specific justices on the Florida Supreme Court. It cannot be determined from the evidence the date the December "Telepost" was posted, but it was posted before Ms. McCarty determined that she had become Chairperson of The Committee. The "Telepost," dated December 2000, solicited funds so that The Committee could, ". . . send a clear message to the Florida Supreme Court that we will not tolerate their efforts to highjack the Presidential election for Al Gore." Later in December 2000, Mr. Stone called Ms. McCarthy and told her that she should be the chairman of The Committee. She agreed. Ms. McCarty signed a "Statement of Organization of Political Committee," which was dated December 19, 2000. This is a form provided by the Division of Elections, which, if properly completed and filed, officially establishes a political committee. She also signed a form entitled "Appointment of Campaign Treasurer and Designation of Campaign Depository for Political Committee." Mr. Stone, or his operatives, provided these forms to Ms. McCarty. She signed them and mailed them to Mr. Stone's address in Washington, D.C., which was the headquarters of the IKON Public Affairs Group. The "Statement of Organization of Political Committee," dated December 19, 2000, was received by the Division of Elections on December 26, 2000. It listed Amber McWhorter as Treasurer. Inez Williams, who works in the document section of the Division of Elections, processed the form. When Ms. Williams received it, she recognized that the form was incomplete because on the face of it the reader could not determine if the committee was an "issue" committee, or a "candidate" committee. Ms. Williams noted that the mailing address on the form dated December 19, 2000, was "c/o VisionMedia," 1680 Michigan Avenue, Suite 900, Miami Beach, Florida. Ms. Williams found a telephone number for that business and dialed it, on December 27, 2000. No one answered so she left a message on VisionMedia's answering machine. In addition to the telephone call, Ms. Williams prepared a letter with the address of, "Mary McCarty, Chairperson, The Committee to Take Back Our Judiciary, 1348 Washington Avenue, Suite 177, Miami Beach, Florida." This letter was dated December 27, 2000, and was signed by Connie A. Evans, Chief, Bureau of Election Records. This is the address found on the "Appointment of Campaign Treasurer and Designation of Campaign Depository for Political Committee," which had also been received by the Division of Elections on December 26, 2000. The letter signed by Ms. Evans on December 27, 2001, informed Ms. McCarty that items 3 and 7 needed to be "rephrased." It further informed Ms. McCarty, that upon receipt of the requested information the committee would be included on the "active" list. The message recorded on The Committee answering machine on December 27, 2001, generated a response from a person who identified himself as Mr. Snyder, on January 2, 2002. Mr. Snyder engaged in a telephone conversation with Ms. Williams. Ms. Williams explained to Mr. Snyder that items 3, 5, 7, and 8, would have to be completed properly as a condition of The Committee's being recognized. A letter dated January 4, 2001, bearing the letterhead of "The Committee to Take Back Our Judiciary," and signed by Amber Allman McWhorter, was faxed to the Division of Elections on January 4, 2001, and received that date. This letter referenced the telephone call between Ms. Williams and Craig Snyder, who was further identified as The Committee's attorney. The letter stated that a corrected Statement of Organization of Political Committee, and a designation of treasurer, would be forwarded to the Division of Elections within the next 72 hours. On January 8, 2001, a filing was received by the Division of Elections that was deemed by the Division to be complete. Subsequently, in a letter dated January 10, 2001, and signed by Connie Evans, informed Ms. McCarty and The Committee that the Statement of Organization and the Appointment of Campaign Treasurer and Designation of Campaign Depository for The Committee complied with the Division of Elections' requirements. The Committee was provided with Identification No. 34261. Posted with the letter was a copy of the "2000 Handbook for Committees," which is published by the Division of Elections. The letter and the handbook were sent to The Committee operation in Miami, not Ms. McCarty, and no one in the Miami Beach operation ever forwarded it to her. Connie Evans, Bureau Chief of Election Records, the entity that supervises the filing of the forms mentioned above, believes that due to a court ruling in Florida Right to Life v. Mortham, Case No. 98-770-Civ-Orl-19A, the language in Section 106.011, Florida Statutes, which defines a "political committee," has been found to be unconstitutional. She believes that a political committee is not required to register with the Division of Elections but that if a committee does register, it must abide by the statutes regulating political committees. Ms. Evans has informed numerous entities of this interpretation of the law in letters. The efficacy of that case, and Ms. Evans' interpretation of it, will be discussed further in the Conclusions of Law, below. Ms. McCarty signed a "Campaign Treasurer's Report Summary"(CTR-Q1) which was filed with the Division of Elections on April 10, 2001. This addressed the period January 1, 2001 until March 31, 2001. Under the certification section of the CTR-Q1 are the words, "It is a first degree misdemeanor for any person to falsify a public record (ss. 839.13, F.S.)." Immediately above her signature are the words, "I certify that I have examined this report and it is true, correct, and complete." The box found immediately above and to the right of her signature, was checked to signify that Ms. McCarty was the chairperson of The Committee. According to Ms. Evans, The Division of Elections regulates several kinds of committees. There are "issues" committees, "candidate" committees," "party executive" committees, and "committees of continuing existence." Depending on the nature of the committee, different rules apply. The Committee was a "candidate" committee so the contribution regulations of a political candidate applied to the committee. That meant that the maximum contribution per person was $500. The CTR-Q1 indicated in the "Itemized Contributions Section" that seven people contributed $1,000 and one person contributed $2,000. Walter Hunter, Neda Korich, Arthur Allen, William Shutze, Caroline Ireland, Henry Allen, and Honore Wansler, contributed $1,000, each. Robert Morgan contributed $2,000. The amounts in excess of $500 were eventually returned to the $1,000 contributors, except that in the case of Henry Allen, the refund was made to Allen Investment corporation. The sum of $1,500 was returned to Robert Morgan, the $2,000 contributor, but the CTR-Q1 listed only a $500 repayment. Therefore, the CTR-Q1 in its expenditures section was incorrect with regard to Mr. Morgan. The CTR-Q1 also listed in the "Itemized Contributions Section" the receipt, on January 2, 2001, of $150,000 for "LOA/INK extension of credit for direct mail services." These words may be interpreted to mean that a loan in the form of an "in kind" service had been provided. This was reported under the name of Creative Marketing, 2760 Eisenhower Avenue, Suite 250, Alexandria, Virginia. The Committee had a bank account at CityBank of Miami, Florida. The sole authorized signatory on the account was Diane Thorne. The Account No. was 3200015694. There was no entry in the bank account of the receipt of $150,000. This indicates that the item was not processed through the bank and it would not have been processed through the bank if it were really an "in kind" contribution. Because the beginning balance was zero on February 8, 2001, it is concluded that the inception date of Account No. 3200015694 was February 8, 2001. Lora Lynn Jones, is the principal of Unique Graphics and Design, which is located in Suite 253, at an address in Alexandria, Virginia, which is not further identified in the evidence of record. Ms. Jones prepared and posted the fundraising letter of December 2000, at the direction of Mr. Stone. Ms. Jones talked on the telephone with Ms. McCarty prior to mailing the fundraising letter and determined that the language in the letter was agreeable to Ms. McCarty. At the direction of Mr. Stone, Ms. Jones requested payment and received payment for her work, but from whom she cannot remember, except that she is sure that Creative Marketing did not pay it. The money for this production was paid in advance by wire transfer. There is no evidence in the record that this was paid from the account of The Committee. In fact, because the payment was made sometime in early December 2000, it could not have been paid from the account because it had not been opened. Ms. Jones is aware of an entity by the name of Creative Marketing Company and she believes it may be located in Northern Virginia, but she is not involved with it. It is found by clear and convincing evidence that the fundraising letter was not paid for by Creative Marketing, 2760 Eisenhower Avenue, Suite 250, Alexandria, Virginia. The bank records of The Committee reflect a $50,000 expenditure made to Unique Graphics and Design, paid with a check dated May 9, 2001. This represents a payment for something other than the fundraising letter dated December 2000. The $50,000 item was reported as an expenditure on the CTR-Q1 that was reported to have been made on March 12, 2001. It was reported as having been made to Creative Marketing as payee. The only check in the amount of $50,000, reflected in The Committee checking account for the period February 8, 2001, to June 30, 2001, was payable to Unique Graphics and Design and was dated May 9, 2001. Therefore, it is found that the CTR-Q1 is incorrect when it was reported as having been made on March 12, 2001, to Creative Marketing. Ms. Jones believes there is a company by the name of Creative Marketing Company, which she believes may be located in Northern Virginia, but she is not involved with it. Contributions remitted in response to the fundraising letter were forwarded to one of Mr. Stone's two addresses. Because the address of 1348 Washington Avenue, Suite 177, in Miami Beach, Florida, is the address listed on the fundraising letter, it is likely that contributions in response to the fundraising letter went to Mr. Stone's Miami Beach operation. In any event, it is found as a fact that Ms. McCarty did not personally receive or have any contact with any of the contributions remitted to The Committee. The people handling the receipt of funds and the deposits were Roger Stone and people paid by his organization, including Diane Thorne, the secretary; Amber McWhorter, the treasurer; and Craig Snyder. Just as Ms. McCarty was not involved in the receipt of income to The Committee, she was also not involved in the disbursement of funds. The CTR-Q1 was completed by The Committee's staff in either Miami Beach or Washington, D.C., but Ms. McCarty had no input into its preparation. When Ms. McCarty signed the CTR-Q1 she was without knowledge as to whether the report was truthful, correct, or complete. It is further found that she made no effort to ascertain whether the report was truthful, correct, or complete. She believed it to be true and correct because she trusted Mr. Stone's operatives to accurately prepare the report. Ms. McCarty, excepting the current litigation, has never been the subject of a Commission action. Ms. McCarty has an income of approximately $80,000. She owns a residence jointly with her husband which is valued at approximately $300,000 and which is subject to a mortgage of approximately $200,000. She owns a vacation home in Maine jointly with her husband that is valued at approximately $25,000. She and her husband own three automobiles. She owns stocks, annuities, mutual funds or certificates of deposit of an indeterminate value.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED: That a final order be entered dismissing the Orders of Probable Cause entered in the case of both Mary McCarty and The Committee to Take Back Our Judiciary. DONE AND ENTERED this 21st day of April, 2003, in Tallahassee, Leon County, Florida. HARRY L. HOOPER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 21st day of April, 2003. COPIES FURNISHED: Kendall Coffey, Esquire Coffey & Wright, LLP 2665 South Bayshore Drive Grand Bay Plaza, Penthouse 2B Miami, Florida 33133 J. Reeve Bright, Esquire Bright & Chimera 135 Southeast 5th Avenue, Suite 2 Delray Beach, Florida 33483-5256 Mark Herron, Esquire Messer, Caparello & Self, P.A. Post Office Box 1876 Tallahassee, Florida 32302-1876 Eric M. Lipman, Esquire Florida Elections Commission 107 West Gaines Street Collins Building, Suite 224 Tallahassee, Florida 32399-1050 Barbara M. Linthicum, Executive Director Florida Elections Commission 107 West Gaines Street Collins Building, Suite 224 Tallahassee, Florida 32399-1050 Patsy Ruching, Clerk Florida Elections Commission 107 West Gaines Street Collins Building, Suite 224 Tallahassee, Florida 32399-1050
