The Issue Were the procedures followed by the Department of Labor and Employment Security (DLES) in evaluating the proposals for Diversity Training fraudulent, illegal or arbitrary?
Findings Of Fact In January 1994, the Department issued a request for proposals to provide diversity training. The Petitioners, Hallas and Lyca, and the Intervenor, Davis, all submitted proposals to DLES for evaluation. Intervenor, J. Davis and Associates represented by Julius Davis its principal officer, had presented proposals and bids earlier on previous Request for Proposals, and had complained informally to the Department about the procedures used which he had identified as unfair and potentially illegal. The Department posted the scores of its evaluation of the proposals and awarded the contract to New Day. Gail Hallas discovered that the scoring of the various elements of the proposals was not in accord with values established in the RFP. She also determined there were errors in the totalling of the scores in Hallas' evaluation. She brought this to the attention of Barbara Chance who was the procurement chief for the contract. Although Ms. Chance was initially incredulous, DLES determined there were errors, reevaluated the proposals and reposted the results. Hallas and Lyca both filed timely protests of the Department's conduct in evaluating the proposals and awarding the contract. The diversity training project manager was Aaron Weeks. Mr. Weeks participated in the conference held by the Department to present the RFP and answer questions. The daughter of Geraldine Thompson, the president of New Day which was awarded the contract, is or was engaged to Aaron Weeks. This relationship was made known previously to the contracting and procurement representative of DLES by Julius Davis, the Intervenor, and was the subject of articles in the local paper. Hallas also introduced a report of the Inspector General which brought this matter to the attention of the DLES. New Day included a portion of a letter from the Secretary of Labor on Department letterhead which was a testimonial about New Day's performance on prior contracts. When the evaluators reevaluated the proposals using the scale published in the RFP, the scores of evaluators Berryman and Branton differed inexplicably from their original evaluations, and were not a mathematical interpolation of the original scores. See Petitioner's Exhibit V, which is attached* and made a part of this order. *NOTE: Exhibits V is not a part of this ACCESS document but is available for review in the Division's Clerk Office. Lyca was the second lowest qualified bidder on the project. Lyca was an experienced diversity trainer and had experience in bidding for such projects. As part of its post bid process, Lyca sought certain information to which it was entitled to refine and improve its bidding/proposal process. Lyca was unable to obtain easily information generally provided to bidders. Hallas did the same thing and met with the same or similar impediments. When Lyca and Hallas sought to protest the award, they both got erroneous information from representatives of DLES and were unable to get appropriate information about filing a protest. Hallas accidently discovered the second posting and was able to timely file its protest. Ms. Carter's review of the evaluations forms of her proposal indicated that she was not a minority business enterprise. This was a scored point of evaluation. The forms did not indicate whether the evaluators had considered whether a business was a minority business enterprise. Evaluation of responses appeared to be based upon evaluation sheets and not on criteria in the RFP. There were numerous transpositions and similar arithmetic errors made by the evaluators. None of the errors inured to the benefit of the Petitioner Hallas. Lyca lost revenues and had expenses in filing the RFP. Hallas submitted a detailed proposal containing 111 pages. Her staff represented all areas of diversity, racial, gender, sexual orientation, disability and age. The RFP reflected that diversity of trainers was to be considered, however, Hallas scored lower than New Day which had only racial and gender diversity differences. The reevaluation was suppose to be conducted on the same proposals using the same criteria. Only the number of points assigned each element changed. Gail Hallas obtained copies of the evaluator's first evaluations and their reevaluations, and prepared an extract of their scores comparing the results. See Petitioner's Exhibit V, attached. This extract revealed that three of the evaluators made a mathematical conversion of their first scores to arrive at their second scores, one without error and the other two with minor errors. The evaluations of Berryman and Branton were significantly different on the reevaluation. A review of Exhibit V reveals, for example, that on the second evaluation, Branton evaluated Davis, Human X, and L.O. Wilson as having a total of 35, when Davis and Human X had 40 and L.O. Wilson had a 45 on the first evaluation. On the other hand, the scores for Hallas and Lyca remained almost identical: 27 vs. 29 and 67 vs. 67 respectively. More importantly, Branton's evaluation of Hallas on both occasions was much lower than the rating of the other evaluators (27 and 29), less than one half of score given Lyca (67) by Branton. While this may appear good for Lyca, it virtually eliminated Hallas from consideration. However, Berryman, whose scores of all the proposals were markedly lower than the other evaluators, scored Lyca as her third highest, but so low (28) as to eliminate Lyca. Only New Day received high scores from all the evaluators in both evaluations. All of the other competitors received at least one very low score, which effectively eliminated them from consideration, and the single low scores given by to Lyca and Hallas respectively by Berryman and Branton were inconsistent with their other assessments as indicated above. This technique had been used previously to insure that awards went to New Day, and had been the cause of Davis' earlier informal protest to the Department.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is, RECOMMENDED that: The subject contract not be awarded to New Day, The contract not be awarded to the next highest bidder which was Lyca because the manner in which the proposals were evaluated was tainted, and That prior to reinstituting the RFP, the process be sanitized and insulated from persons having any conflicting interests regarding this RFP and its evaluation. DONE and ENTERED this 19th day of July, 1994, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of July, 1994. APPENDIX CASE NO. 94-2354BID Petitioners' proposed findings were read and considered. The following list indicated which findings were adopted, and which were rejected and why: Paragraphs 1 through 6 Adopted Paragraph 7 Rejected as preliminary statement. Respondent's proposed findings were read and considered. The following list indicated which findings were adopted, and which were rejected and why: Paragraphs 1 through 4 Adopted. COPIES FURNISHED: Lyca Associates, Inc. Lynda V. Carter, President Suite B-6 4403 Vineland Road Orlando, FL 32811 The Hallas Group Gail Hallas, Owner 6822 22nd Avenue N, Suite 329 St. Petersburg, FL 33710 Mr. Julius Davis J. Davis and Associates, Inc. Human Resources Management Consultants 2371 Sunderland Avenue, Suite 4 Wellington, Florida 33414 Edward A. Dion, General Counsel Department of Labor and Employment Security 307 Hartman Building 2012 Capital Circle, S.E. Tallahassee, FL 32399-2189 and Carolyn Davis Cummings, Esquire Department of Labor and Employment Security 307 Hartman Building 2012 Capital Circle, S.E. Tallahassee, FL 32399-2189 Honorable Bob Crawford Commissioner of Agriculture The Capitol, PL-10 Tallahassee, FL 32308
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
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.
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 Whether Respondent discriminated against Petitioner on the basis of her race or color in violation of Chapter 760, Florida Statutes (2003); and whether Respondent retaliated against Petitioner in violation of Chapter 760, Florida Statutes.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing, the following findings of facts are made: Respondent, whose correct name is AIG Marketing, Inc. is a subsidiary of American International Group, Inc. ("AIG"). Respondent supplies marketing services for AIG. Respondent is an employer as defined by Subsection 760.02(7), Florida Statutes (2003). Petitioner is an African-American female. She began working for Respondent as an "insurance consultant" on April 22, 2003. Petitioner resigned her employment by letter dated February 17, 2004. Petitioner's last day at work for Respondent was March 2, 2004. Petitioner worked at Respondent's facility in Seminole County, Florida. An insurance consultant's primary job responsibility is to answer incoming telephone calls from prospective customers seeking information concerning automobile insurance. Respondent has an anti-discrimination and anti- retaliation policy. Respondent has a published policy specifically prohibiting discrimination and retaliation. The policy states that discrimination, including that based upon race and color "is strictly prohibited." The policy states that any employee found to have engaged in any form of discriminatory harassment will be subject to appropriate disciplinary action, up to and including termination. The policy states that Respondent will not tolerate any retaliation against any employee for making a complaint, bringing inappropriate conduct to the Respondent's attention, or for participating in an investigation of an alleged act of harassment. Respondent's management employees support and enforce its policies against discrimination and retaliation. After she was hired in April 2003, Petitioner received training for a period of approximately 10 weeks. Thereafter, on approximately July 1, 2003, she was placed on a "team" with other insurance consultants. The Petitioner's immediate supervisor was Melody Garcia-Muniz. While on Ms. Garcia-Muniz' team, Petitioner also received instruction, also called "coaching," from Nirmala Sookram. Ms. Garcia-Muniz is an Asian female. Ms. Sookram is an Indian female. Approximately one month after she was placed on Ms. Garcia-Muniz' team, on or about August 2, 2003, Petitioner had a confrontation with Ms. Sookram. Thereafter, by correspondence dated August 2, 2003, Petitioner wrote Respondent's Human Resources Office and Ms. Garcia-Muniz complaining of "the work condition, I have been experiencing with team leader Nirmala Sookram." As a result of Petitioner's August 2, 2003, letter, Respondent replaced Ms. Sookram as the team coach with another coach. Respondent also immediately investigated the allegations contained in Petitioner’s August 2, 2003, correspondence. This investigation was conducted by Ms. Garcia-Muniz and another management employee Dawn Bronwnlie. No evidence of discrimination was revealed. In approximately September or October 2003, Petitioner was transferred from Ms. Garcia-Muniz' team to a team supervised by Beverly Swanson. Ms. Swanson is a Caucasian female. This transfer was done pursuant to a reorganization of Respondent's shifts. Respondent had two business practices which are relevant to this matter and which are acknowledged by Petitioner. First, Respondent requires that its insurance consultants respond to in-bound calls from customers as soon as possible. Respondent has a policy prohibiting insurance consultants from making out-bound calls if there are in-bound calls waiting. Out-bound calls would typically be follow-up calls between an insurance consultant and a prospective customer. Second, Respondent has a policy prohibiting one insurance consultant from accessing an insurance quote being worked on by another insurance consultant. This policy is intended to prevent one insurance consultant from "stealing" a customer from another insurance consultant. Petitioner consistently violated Respondent's policy against making out-bound calls when in-bound calls were waiting. She was counseled with respect to this policy on August 5, 2003. Petitioner continued to violate this policy and received a verbal warning on September 19, 2003. The verbal warning confirmed Petitioner had been counseled in August with respect to this policy. The verbal warning confirms that for a 14-day period Petitioner made 649 out-bound calls while only receiving 444 in-bound calls. The verbal warning stated that at no time should Petitioner's out-bound calls exceed her in-bound calls. With respect to Respondent's policy prohibiting one insurance consultant from accessing a quote for a customer of another insurance consultant, Petitioner was advised on November 7, 2003, about the proper procedures to handle such situations. Though Petitioner claimed that she did not know accessing a quote for another insurance consultant's customer was inappropriate until November 7, 2003, she admits that on that date she was so advised and from that date forward knew that it was a violation of Respondent's policies. Nonetheless, on December 10, 2003, Petitioner's then supervisor Ms. Swanson was advised that Petitioner had accessed a quote for another insurance consultant's customer in violation of Respondent's policies. This occurred on December 9, 2003. Two days later on December 12, 2003, another insurance consultant, Steve Mintz advised Ms. Swanson that Petitioner had also accessed one of his insurance quotes. Ms. Swanson investigated and determined that Petitioner had, in fact, violated Respondent's policies by accessing the quote of another insurance consultant's customers. As part of that investigation, Ms. Swanson interviewed Petitioner and reviewed reports. Petitioner's statements were inconsistent with the reports, and Ms. Swanson ultimately determined that Petitioner had been untruthful with her during the investigation. As a result of Petitioner's violation of the policy, on December 16, 2003, Ms. Swanson issued Petitioner a written warning for inappropriate sales conduct. The written warning noted that Ms. Swanson had thoroughly investigated "several" complaints about Petitioner's sales conduct and confirmed that Petitioner had processed sales incorrectly despite several discussions with other supervisors as well as Ms. Swanson. The written warning also confirmed that Petitioner had been untruthful with Ms. Swanson during Ms. Swanson's investigation into this matter. As a result, Ms. Swanson placed Petitioner on a written warning which advised her that should her practices continue, her employment would be terminated. In accordance with Respondent's policies, Petitioner was ineligible to post for a position, switch shifts, or work overtime. Immediately after the December 16, 2003, meeting during which Ms. Swanson issued the written warning, Petitioner contacted Respondent's Human Resources department. As a result, Louisa Hewitt, Respondent's Human Resources professional, undertook an independent investigation to determine the accuracy or inaccuracy of Ms. Swanson's findings which formed the basis for the written warning. Ms. Hewitt is a Hispanic female. Ms. Hewitt's independent investigation determined that Petitioner had, in fact, improperly processed sales and inappropriately accessed quotes. Accordingly, Ms. Hewitt met with Petitioner on December 31, 2003. In attendance was another of Respondent's managers Patricia Brosious. During this meeting, Ms. Hewitt advised Petitioner that the written warning was appropriate. Despite the fact that the December 16, 2003, written warning prohibited Petitioner from switching shifts, Respondent allowed Petitioner to switch shifts in order to allow her to care for an ill relative. This request was received on or about December 21, 2003, and granted on December 22, 2003. Dawn Bronwnlie (one of the Respondent's assistant managers who investigated Petitioner's August 2003 complaint) requested the accommodation on Petitioner's behalf by e-mail dated December 21, 2003, sent to, among others, Petitioner's immediate supervisor Ms. Swanson. Petitioner and Respondent management employee Patricia Brosious were copied on the e-mail. Approximately one month later, Petitioner again requested a shift change. By e-mail dated January 26, 2004, Respondent's management employee Patricia Brosious informed Petitioner of all of the shifts that were open at that time to which a transfer was possible. Ms. Brosious copied Ms. Hewitt and Timothy Fenu on this e-mail. Mr. Fenu is the manager of Respondent's facility in Lake Mary, Florida, and the highest- ranking employee of Respondent at that facility. On January 27, 2004, Petitioner responded to Ms. Brosious' e-mail, which had advised Petitioner of the shifts that were available. In response, Mr. Fenu sent an e-mail to Petitioner advising her that the shifts offered to her were based on business need and current unit sizes. Mr. Fenu advised Petitioner that her response was inappropriate and requested her to advise Respondent if she desired to change shifts. After initially scheduling a meeting with Mr. Fenu, Petitioner canceled the meeting by e-mail dated February 10, 2004. Petitioner resigned her employment February 17, 2004. Petitioner presented no direct evidence of discrimination or statistical evidence of discrimination.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Florida Commission on Human Relations enter a final order dismissing Petitioner's Petition for Relief. DONE AND ENTERED this 12th day of January, 2006, in Tallahassee, Leon County, Florida. S JEFF B. CLARK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 12th day of January, 2006. COPIES FURNISHED: Denise Crawford, Agency Clerk Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Cynthia McGee Post Office Box 550423 Orlando, Florida 32855 Daniel C. Johnson, Esquire Carlton Fields, P.A. Post Office Box 1171 Orlando, Florida 32802 Cecil Howard, General Counsel Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
Findings Of Fact On March 19, 1985 petitioner, Michael Scott Symons, became employed as a financial manager with the brokerage firm of Easter Guthmann & Kramer Securities, Inc. (EGK) at 7200 West Camino Real Street, Suite 200, Boca Raton, Florida. In connection with his employment Symons filed an application for registration as an associated person of EGK with respondent, Department of Banking & Finance, Division of Securities (Division). The application was received by the Division on or about March 19, 1985 and was deemed to be complete on April 18, 1985. On that portion of the application entitled "Personal History" Symons gave 5700 Grillet Place, S.W., Fort Myers, Florida 33907 as his home address. He identified EGK's address as being 7200 West Camino Real, Suite 200, Boca Raton, Florida 33433. Although Symons signed the application he stated that EGK had actually submitted the application on his behalf since it was a common practice for brokerage firms to do administrative work on behalf of their employees. This is consistent with an agency rule (3E-600.02(3), F.A.C.) which requires that a securities dealer file and countersign the application for registration on behalf of an associated person. On March 24, 1985, or shortly after he began employment with EGK, Symons moved into an apartment at 6091 Boca Colony Drive, Boca Raton, Florida 33427. Approximately one month later, he began renting Post Office Box 3299 in Boca Raton. Symons did not inform the Division of these changes in address, or otherwise amend his application. On or about July 12, 1985 a Division bureau chief spoke by telephone with the chief financial officer of EGK and asked if EGK would voluntarily withdraw Symons' application. Later that same day, an EGK vice-president telephoned the bureau chief and advised him the firm would not withdraw the application. On July 16, 1985, the Division prepared and dated an Order Denying Application for Registration as an Associated Person. The next day a Division attorney sent a copy by certified mail to Symons' at 5700 Grillett Place, S.W., Fort Myers, Florida. Because Symons' wife had previously provided the post office with a change of address form the envelope containing the order was forwarded from Fort Myers to Post Office Box 3229 in Boca Raton. Certified mail notices were thereafter placed in the box on July 24 and July 31. However, the mail was never claimed. On August 8, 1985 the envelope was returned to the Division. It was received in Tallahassee on August 12, 1985. There is no evidence that Symons was aware the order had been mailed or that he deliberately failed to claim the letter. The agency attorney similarly assumed that Symons had not received a copy. Accordingly, it is found that at this point in time Symon had no knowledge that the July 16 order-was entered, and had been mailed to him in Fort Myers and Boca Raton. On August 19, 1985 the Division attorney again sent a copy of the July 16 order by certified mail to 7200 West Camino Real, Suite 200, Boca Raton. This was the address of EGK. According to the attorney, it was her intention to mail the order to Symons, and not his employer. The order contained the following pertinent language on page 5: Respondent is advised that Respondent may request a hearing to be conducted in accordance with the provisions of Section 120.57, Florida Statutes. A request for such hearing must comply with the provisions of Rule 28-5.201, Florida Administrative Code, and must be filed within twenty-one (21) days after receipt of this order. Otherwise, Respondent will be deemed to have waived all rights to such hearing. The certified mail receipt for the envelope containing the order was apparently signed for by Charlie Shields, an EGK employee. 1/ It eventually reached the desk of EGK's chief financial officer, James Weber, in an unopened envelope on August 23, 1985. Weber opened the envelope and read the enclosed order. He noticed on page five of the order that there was a twenty-one day time frame in which an appeal of the agency denial could be made. Believing that the twenty-one day time frame began on July 16, Weber erroneously concluded that the time to request a hearing had already expired. This was probably because he had never before seen a denial order, and was not familiar with the procedures under Chapter 120, F.S. Weber then showed the order to Edward Guthmann, a principal and vice- president of EGK. Guthmann telephoned an out- of-state attorney seeking advice on how to proceed, and sent a copy of the order to the attorney on August 23. The attorney did not take any action, and returned the order to Guthmann on an undisclosed dated between late August and the middle of September. On September 17 Weber "came to the realization" that under any interpretation of the order the time frame in which to request a hearing had run. He then contacted petitioner's present counsel on September 17 to discuss obtaining legal representation for Symons. Symons has continued using that counsel since that time. A petition for hearing was eventually filed with respondent on October 1, 1985. This petition was denied by agency order entered on October 16, 1985 on the ground Symons had "constructive receipt and notice of the Denial Order at the time of its delivery by U.S. Certified Mail to Respondent's personal address on July 24 1985, and furthermore, deems Respondent to have received actual notice. . . on August 25, 1985, when the Denial Order was claimed and signed for at EGK's address as listed on the application." Neither Weber or Guthmann informed Symons prior to September 15 that they had received the Division order, or that the document even existed. They also did not advise him that they had contacted an out-of-state attorney in August in an effort to obtain advice. In this regard, petitioner had not authorized them to take any action with respect to the denial order, or to seek the advice of an attorney. Symons was unaware of the existence of the denial order prior to September 20, 1985 when he was shown a copy of the order by his employer. Had he been aware of the order prior to September 15, he would have filed a request for a hearing. Even though he did not specifically voice an objection to his employer opening his mail, Symons did not expressly authorize his employer to accept the order or any other notices from respondent. Indeed, Symons considered certified mail to be "a personal thing," and something that "an employer has (no) right to open."
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered finding that petitioner timely requested an administrative hearing to contest respondent's denial of his application for registration as an associated person. DONE and ORDERED this 4th day of December, 1986 in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 4th day of December, 1986.
The Issue The issues to be resolved in this proceeding concern whether the Respondent willfully violated Section 106.07(5), Florida Statutes, by filing a campaign treasurer's report which was allegedly incorrect, false or incomplete, and whether the Petitioner agency had jurisdiction to proceed against the Respondent.
Findings Of Fact The Respondent, Catherine King, was Clerk of the Circuit Court in Walton County, Florida, from her first elected term of office beginning January 1, 1981, continuously until December 31, 1996, when she was deposed in an election. The Respondent is a member of the Democratic party and ran for re-election for the office of Clerk of the Court in the 1996 elections. She was opposed by one Newton Peters in the Democratic party primary. On August 29, 1996, a political advertisement supporting the Respondent appeared in the DeFuniak Herald newspaper. Photographs and comments of thirteen employees of the clerk's office appeared in that advertisement in support of the Respondent. A Mr. Harry Riley saw that advertisement in the newspaper and accosted the Respondent at two separate political functions concerning the content and import of the newspaper advertisement, as he perceived it. He told the Respondent that he intended filing a complaint against her based on this advertisement. Mr. Riley apparently has a penchant for filing numerous complaints against public officials in Walton County, all of whom are members of the Democratic party. Mr. Riley is a Republican. He did not express any complaint or concern to the Respondent about any matter other than the advertisement in question. On September 2, 1996, Mr. Riley indeed filed a Sworn Complaint against the Respondent with the Florida Elections Commission, the Petitioner, and a similar complaint with the Florida Ethics Commission. In the complaints he alleged that the employees whose photographs and comments appeared in the August 29, 1996 political advertisement in the newspaper had been coerced into participating in the advertisement. His complaint was investigated by both commissions and both the Florida Ethics Commission and the Petitioner, the Florida Elections Commission, found his complaint to be unfounded. In fact, all of the evidence showed that the employees whose photographs and comments were used in the advertisement participated freely and voluntarily and that Mr. Riley never spoke to any of them concerning their participation in the advertisement. On October 7, 1996, Mr. Riley sent an un-sworn letter to the Petitioner agency in which he referenced the Respondent's campaign treasurer's report of July 1, 1996 through July 26, 1996. He suggested that that report might contain a violation of campaign finance laws. The issue raised in this report was the reporting of an "in-kind contribution" of T-shirts. Prior to sending this letter to the Petitioner, Mr. Riley had not spoken to any persons about their involvement in the production, purchase or sale of the T-shirts, nor the circumstances in which it was done. He had not spoken with the Respondent even to voice a complaint about that activity, nor to any individual who participated in the concept of purchase of campaign T-shirts or their production. Mr. Riley, nor any other person, has ever filed any sworn complaint with the Petitioner agency concerning any campaign treasurer's report filed by the Respondent or the Respondent's campaign treasurer. The specific item or items in the campaign treasurer's report at issue because of Mr. Riley's un-sworn letter to the commission involved the reporting of $562.14, for payment for campaign T-shirts and another $71.16, for additional campaign shirts. All the evidence is clear and consistent to the effect that a group of supervisors in the Clerk of Court's office, including Martha Ingle, Janice Anderson, Cindy Reddick and Louise Pippen, had a meeting in which they discussed ways to assist in the Respondent's campaign. They had seen individuals wearing T- shirts supportive of other candidates at political rallies and concluded among themselves that it would be a good idea for their group to show their support for the Respondent by obtaining such T-shirts. Janice Anderson volunteered to follow-up on the concept by contacting a silk screen T-shirt production shop near her residence. The Respondent did not attend that meeting of supervisors concerning the T-shirt issue and had no role in the conceptualization or acquisition of the T-shirts, nor the circumstances under which they were acquired. In fact, Janice Anderson went to James King Sr. of Westville, Florida (no relation to the Respondent), and ordered the T-shirts. Mr. King then billed Ms. Anderson $562.14 for the T-shirts. Ms. Anderson subsequently ordered several more shirts from Mr. King which were of a different type, and Mr. King billed her $71.16, for these shirts. The Respondent was unaware at the time of either of the shirt orders, or the whole concept. The T-shirts were ultimately delivered to the Walton County Courthouse. Employees were advised by Ms. Anderson, or Martha Ingle that they were there and that the employees could pick up their T-shirts. Ms. Anderson collected the money from those employees who wished to purchase T-shirts. The Respondent had no involvement in the ordering, receiving, selling, or payment for any of the T-shirts. The Respondent neither collected nor received any money for T-shirts. The Respondent did not sell any of her employees a shirt or T-shirt during her re-election campaign in 1996. After the supervisors ordered, received, paid for and distributed the T-shirts for those employees who wished to purchase them, it became apparent to them that they would have to report their activity in some manner pursuant to the provisions of Chapter 106, Florida Statutes. These employees approached the Respondent concerning their belief that their activity needed to be reported. The Respondent told the employees she would report the T-shirts on her campaign treasurer's report form. When she filled out her treasurer's report form (exhibit 3), she first listed the amount Janice Anderson collected, the $562.14, as cash and showed a corresponding expenditure to King Enterprises, the maker of the T-shirts. Respondent was uncertain that this was the correct way to report the item, however, because she had had no involvement in the T-shirts being ordered, paid for or sold and had never actually received the $562.14, as cash in her campaign. Additionally, she had never had any situation arise before similar to this one in any earlier election she was involved in. Because of this she sought the advice of the Supervisor of Elections, Miss Nellie Thompson, concerning how to properly account for and report the T-shirts effort. The Respondent knew that Miss Thompson had been Supervisor of Elections for fourteen years and felt that she had the knowledge and expertise to advise her if she had entered these items on her campaign treasurer's report correctly. The Respondent went to Miss Thompson's office shortly after lunch on August 22, 1996, showed Miss Thompson the report she had prepared and explained what the employees in the clerk's office had done with respect to the issue of T-shirts. Near the end of that day Miss Thompson called the Respondent who returned to Miss Thompson's office. Miss Thompson advised the Respondent to strike through the letters "CAS" (meaning cash) in column (9) of "itemized contributions" and insert "T-shirts" in column (10). She also advised the Respondent to strike through "King Enterprises" and its address in column (7) of itemized expenditures. The Respondent then suggested to Miss Thompson that she would take her report back upstairs to her office and rewrite it. Miss Thompson told her to just mark through it and leave it like it was. Miss Thompson concedes that her memory of the conversation with the Respondent and the sequence of events concerning submittal of the report, when it was "stamped in" and when the corrections or adjustments to the report were done at her suggestion by the Respondent is unclear. She believes that she did not talk to the Respondent until after 4:18 o'clock that afternoon because the report shows, according to Miss Thompson's testimony, that it was stamped in at 4 o'clock, and that such reports are always stamped in immediately upon their receipt. She professed to not have any recollection of the nature and time of any conversation had with Miss King, the Respondent. The Respondent, on the other hand, appeared to have a clear memory of events that day surrounding her contact and communication with Miss Thompson and testified in a clear, logical, forthright fashion about them. The Respondent's testimony was not contradicted by any other evidence and by her own admission, Miss Thompson's recollection of events that day is either non-existent or not clear. Accordingly, the Respondent's testimony in these particulars is fully credited and accepted in making the foregoing Findings of Fact. It can thus be inferred that the fact that the document in question was stamped as received after 4:00 p.m., that day could just as easily have resulted from the document not being considered "filed" and not "stamped in" until Miss Thompson's suggested adjustments had been made. It can easily be inferred that when the Respondent made the change in Miss Thompson's presence and then handed the report back to her that it would have logically been then stamped as filed in final form. The evidence is clear and uncontradicted that the Respondent never intended to submit an inaccurate or incomplete report nor did she intend to submit a false report. There is no evidence to show that the Respondent willfully submitted an inaccurate, incomplete or false report. On the contrary, the Respondent clearly intended to disclose all facts concerning her campaign finances and events, for the time period to which the report related. In fact she did fully disclose them in terms of reporting the T-shirts on her report form and the value of the campaign contribution they represented. Even if the report is technically incorrect for the Respondent's failure to itemize an individual dollar amount per T-shirt per employee contributing that amount instead of simply giving the total amount involved in the T-shirt "in kind contribution" there was no intent to submit a false, inaccurate or misleading report and the Respondent did not willfully do so. The Respondent did not report the expenditure of $71.16, for the collared campaign shirts because she had no knowledge of that expenditure. She could not have reported the expenditure when she was unaware that it had occurred. There was no evidence adduced to indicate that the Respondent intended to evade, avoid or conceal any campaign contribution or expenditure. No evidence was offered to say that she intended to submit an inaccurate, false or incomplete report and all of the evidence shows that she made an extra effort to be sure that she reported the T-shirt situation correctly by consulting with the Walton County Supervisor of Elections before she filed the report. In conducting its investigation, the Petitioner simply relied upon phone calls to several employees of the clerk's office, Miss Thompson and James King, Sr., the maker of the shirts, by a commission representative. That person, Ms Fuchs, never conversed or attempted to converse with any witness in person and never conversed with the Respondent or, for instance, the Respondent's husband at all. She never conferred with a number of employees who had purchased the T-shirts. In an investigation involving a purported violation of a statute involving the element of willfulness and intent on the part of such a Respondent, an interview of the Respondent and persons who might best be able to give information relevant to her intent underlying the submittal of such a campaign treasurer's report would seem to be well-advised. Such was not done, however. Moreover, the Petitioner never dispatched an investigator or any other officer or agent of the Petitioner to Walton County to conduct an investigation, including conversations with other employees and persons who might have knowledge of this situation, as the Florida Ethics Commission had done in its own investigation. Hence the investigation was conducted in a cursory fashion and facts revealed by the testimony and evidence adduced at the formal hearing were unknown to the Petitioner but could have been known to it had it more thoroughly investigated the case before issuing the Statement of Findings. There is a substantial likelihood that if a more thorough investigation had been conducted by the Petitioner, that probable cause would not have been found, as with the case of the complaint against the Respondent which Mr. Riley had filed with the Florida Ethics Commission and which was determined by it and by the Elections Commission to be unfounded. The testimony presented in this case establishes that the Respondent is a truthful and honest person. Her testimony which was largely uncontradicted by any other evidence, is therefore fully credited and accepted in making the foregoing Findings of Fact.
Findings Of Fact Bernard M. Tully, M.D. served by mail his Motion to Tax Attorney's Fees and Costs pursuant to Chapter 57, Florida Statutes, on May 19, 1987; same was filed with the Division of Administrative Hearings on May 21, 1987 and was assigned DOAH Case No. 87-2265F. This instant cause is a fee and costs case pursuant to Chapter 57, Florida Statutes, arising out of Department of Professional Regulation, Board of Medical Examiners v. Bernard M. Tully, M.D.; DOAH Case No. 85-3175. The Department of Professional Regulation has moved to dismiss Tully's Motion to Tax Attorney's and Costs, (hereafter, "Fees and Costs Petition") upon allegations that the claim was not filed in a timely manner pursuant to Section 57.111(4)(b)2, Florida Statutes, and upon allegations that the Fees and Costs Petition did not comply with the requirements of Section 57.111(4)(b), Florida Statutes, in that the claimant had not submitted an itemized affidavit of the nature and extent of the services rendered as well as the costs incurred. A Voluntary Dismissal was served by mail by Petitioner Department of Professional Regulation in DOAH Case No. 85-3175 on March 6, 1987, and filed with the Division of Administrative Hearings on March 10, 1987. The Order closing the Division file in that case was entered March 18, 1987, but is largely superfluous since a Voluntary Dismissal by the party bearing the burden of proof dismisses a cause by operation of law as of the date of filing of the Voluntary Dismissal. Tully's Fees and Costs Petition was served (May 19, 1987) and filed (May 21, 1987) well beyond the 60 day timeframe (May 11, 1987) provided in Section 57.111(4)(b)2, Florida Statutes, for the filing of such claims. Tully's Fees and Costs Petition attached schedules itemizing costs incurred and pleadings filed in DOAH Case No. 85-3175. The Petition was not verified and no affidavits are attached. In these respects, the Fees and Costs Petition failed to comply with Section 57.111(4)(b)1, Florida Statutes, and Rule 22I-6.35, Florida Administrative Code. Neither does the Fees and Costs Petition or any accompanying affidavit allege whether or not Tully requests an evidentiary hearing; that he is a small business party; where his domicile and principal office are located; how many employees he has; whether or not he is a sole proprietor of an unincorporated business, and, if so, whether or not his net worth exceeds $2,000,000; whether or not he operates as a partnership or corporation i.e. professional practice, and, if so, whether or not the net worth exceeds $2,000,000; whether the agency's actions were substantially unjustified; and whether or not circumstances exist that would make the award unjust; or whether or not the agency was a nominal party only. There were also no documents upon which the claim was predicated attached to the Fees and Costs Petition. in these respects, the Petition failed to comply with virtually all of Section 57.111(4)(b), Florida Statutes, and Rule 22I-6.035(1)(2), and (3), Florida Administrative Code. Tully timely filed a Response to Order to Show Cause wherein he acknowledged as true and accurate the dates as found in Finding of Fact 4, supra. Moreover, his Response concedes that pursuant to Section 57.111(4)(b)2, Florida Statutes, the application for an award of attorney's fees must be made within 60 days after the date that a small business party becomes a prevailing small business party, but his Response asserts that nothing in the applicable statute provides that an application for costs must be made within 60 days, and therefore at least his application for costs must be deemed timely. The Response further sets out an itemization of costs incurred and is sworn to by Tully's attorney of record. No leave to amend the Petition was granted by the Order to Show Cause.
