The Issue The issues presented for determination are whether Respondent violated Subsections 106.11(3) and 106.19(1)(d), Florida Statutes, as alleged in the Order of Probable Cause dated May 22, 2001, and the Statement of Findings dated April 3, 2001.
Recommendation It is recommended that the Florida Elections Commission enter a final order dismissing all charges against Petitioner, Bruce Grady. DONE AND ENTERED this 26th day of November, 2001, in Tallahassee, Leon County, Florida. JEFF B. CLARK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 26th day of November, 2001. COPIES FURNISHED: Mark Herron, Esquire Mark Herron, P.A. 215 South Monroe Street, Suite 701 Tallahassee, Florida 32301 Eric M. Lipman, Esquire Florida Elections Commission The Capitol, Room 2002 Tallahassee, Florida 32399-1050 Barbara M. Linthicum, Executive Director Florida Elections Commission The Capitol, Room 2002 Tallahassee, Florida 32399-1050 Patsy Rushing, Clerk Florida Elections Commission The Capitol, Room 2002 Tallahassee, Florida 32399-1050
The Issue Whether Respondent, James Jennings, violated Subsections 106.021(3), 106.07(5), or 106.19(1)(b), Florida Statutes (2002), as alleged in the Amended Order of Probable Cause dated February 20, 2004, and, if so, what is the appropriate penalty.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing, the following findings of facts are made: Respondent has taught in the public schools of Lee County, Florida, for 31 years. He has a bachelor of science degree. Respondent was a first-time candidate for public office, although he had limited political experience as a precinct committeeman and president of the Sanibel-Captiva Republican Club. He had not been actively engaged in any previous campaign as a campaign treasurer or deputy. Incidental to becoming a candidate he met with appropriate municipal and county election officials and received a campaign handbook which included the following: A Compilation of The Election Laws of the State of Florida (2001), published by the Department of State; 2002 Handbook for Candidates, published by the Department of State; 2002 Handbook for Treasurers, published by the Department of State; Chapter 106, Florida Statutes, published by the Department of State; various Sanibel municipal ordinances related to city elections; a calendar listing important dates for filing campaign documents. Respondent signed a Statement of Candidate which advised that he had received a copy of Chapter 106, Florida Statutes, and that he had read and understood same. It is apparent that Respondent did not understand the Florida Election Law as embodied in Chapter 106, Florida Statutes. Respondent designated a campaign treasurer and a deputy campaign treasurer. Notwithstanding the fact that Subsection 106.021(3), Florida Statutes (2002), clearly states that no campaign expenditure shall be made except through the duly- appointed campaign treasurer, Respondent personally signed 30 campaign checks. In fact, he signed all campaign checks with the exception of one check. On that particular check he directed his wife, the deputy campaign treasurer, who was statutorily authorized to sign the campaign check as deputy campaign treasurer, to sign his name. Inexplicably, Respondent believed that he, personally, was obligated to sign all campaign checks because he was the candidate. Respondent prepared his own Campaign Treasurer's Reports. It is suggested that he received some limited assistance from his wife. On February 28, 2003, Respondent was required to file a Campaign Treasurer's Report for the reporting period of February 8, 2003, through February 27, 2003. Two previous Campaign Treasurer's Reports for periods January 1, 2003, through January 24, 2003, and January 25, 2003, through February 7, 2003, had reporting dates which were seven days after the reporting period ended (January 31, 2003, and February 14, 2003). Respondent believed that the Campaign Treasurer's Report due on February 28, 2003, covered the period from February 8, 2003, through February 21, 2003. The campaign calendar presented by a city elections official clearly indicated the accurate reporting period. On February 28, 2003, immediately prior to filing the subject Campaign Treasurer's Report, Respondent discovered that the report should have included activity through February 27, 2003. He did not include appropriate information for February 21, 2003, through February 27, 2003, because he did not have time to return to his home, obtain the additional information, make appropriate inclusions, and file the report before 5:00 p.m. at the Sanibel City Hall. He merely changed the end of the reporting period on the Campaign Treasurer's Report from February 21, 2003, to February 27, 2003, knowing that it was inaccurate. The Campaign Treasurer's Report failed to include 24 contributions that should have been reported. During the telephone conversation in which he discovered the actual reporting period, he testified that he was advised by a Lee County elections official to file the report even though it was inaccurate, and then immediately file an accurate amended report. This is not credible. February 28, 2003, was a Friday. Respondent filed an Amended Campaign Treasurer's Report on Wednesday, March 5, 2003. The election was on Tuesday, March 4, 2003. Unfortunately, the Amended Campaign Treasurer's Report was not accurate. On June 2, 2003, Respondent filed a Second Amended Campaign Treasurer's Report, which included seven previously unreported contributions. This particular inaccuracy was attributed to the fact that two pages in the spiral notebook used to record contributions had stuck together for some unknown reason concealing these seven contributions. Petitioner failed to present evidence in testimony or stipulated facts as to the amount of unreported contributions. Respondent acknowledged his failure to report 24 contributions, but not the amount of each contribution or of a total amount of unreported contributions. While the orders of probable cause contain specific reference to the amount of each unreported contribution, this is not evidence. It may be possible to sift through the Campaign Treasurer's Reports and estimate the unreported amounts by comparing each report. An examination of the various Campaign Treasurer's Reports suggests that obtaining an accurate figure would be problematic and not exact. I find that there is no basis for an administrative fine predicated on the amount of unreported contributions. Respondent's attempts at campaign bookkeeping mirrored his understanding of the election laws. He, at first, attempted to keep contributions and expenditures in a checkbook register. When this proved inadequate, he started recording contributions and expenditures in a spiral notebook and on lined paper. These records were received into evidence. After a cursory examination of these documents, it is easy to understand why there was confusion. Respondent's campaign bookkeeping lacked basic organization. There does not appear to be any ulterior motive for Respondent's glaring errors, in particular his lack of basic understanding as to who should sign campaign checks. No one was deceived by the candidate's signing his name to the campaign checks. Equally as baffling and disappointing is his failure to understand the reporting periods and his response to his discovery of the error in the time covered by the reporting period in question. While it is argued that the voting public is deceived by Respondent's failure to disclose contributions, it is unlikely that any voters were waiting to examine the Campaign Treasurer's Report on the Monday before a Tuesday election. Clearly, Respondent did not comply with Subsection 106.021(3), Florida Statutes (2002), when he signed 30 campaign checks. This failure is obviated by granting the motion to dismiss the counts related to this violation. He also certified the correctness of the Campaign Treasurer's Report for the February 8, 2003, through February 27, 2003, reporting period knowing that the report was inaccurate and did not accurately reflect contributions. The March 5, 2003, Amended Campaign Treasurer's Report was similarly inaccurate. The real issue regarding Respondent's filing inaccurate Campaign Treasurer's Reports is whether or not these activities were "willful" as defined by Section 106.37, Florida Statutes (2002). Notwithstanding his written assertion that he understood the Florida Election Law, he did not. This is demonstrated by the fact that he clearly did not understand the law regarding who could sign campaign checks. The fact that he directed his wife to sign his name to a campaign check when she was a deputy campaign treasurer and an statutorily authorized signer, demonstrates that he just did not understand the law. Signing a Campaign Treasurer's Report, knowing it did not accurately reflect required reportable activity, clearly violates the law, and cannot be attributed to misunderstanding the law. Even if it is believed that he was advised to file an inaccurate report and file an immediate amended report, which is not credible, Respondent knowingly violated the law. He filed an inaccurate report and certified that it was true and correct when it was not. He should have waited until the following Monday, filed an accurate report, and suffered the fine and potential attendant political repercussions. The Amended Campaign Treasurer's Report filed March 5, 2003, failed to report seven campaign contributions that were ultimately reported on the Second Amended Campaign Treasurer's Report filed on June 2, 2003; this inaccuracy was not done knowingly; however, it does reflect reckless disregard for the law. Respondent's excuse that the pages were stuck together by fruit juice is unacceptable. Respondent did an inexcusably sophomoric job in his campaign record keeping; this failure as a record keeper rises to the level of recklessly filing an inaccurate Campaign Treasurer's Report. Respondent's Statement of Financial Interests (CE Form 1) for the 2002 calendar year reflects an annual income of $51,279, from the Lee County School Board, joint-residential home ownership, modest tax sheltered annuities, and typical debt. This is the only financial information presented. In addition, Respondent has no previous history of involvement with Petitioner and was fully cooperative with the investigation.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent be found to have violated Subsections 106.07(5) and 106.19(1)(b), Florida Statutes (2002), and fined $3,900. DONE AND ENTERED this 24th day of September, 2004, 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 24th day of September, 2004.
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 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 Petitioner, as a candidate for the Leon County Commission, District 1, in the 1998 elections, willfully violated Subsection 106.07(5), Florida Statutes, which prohibits a candidate from certifying to the correctness of a campaign treasurer's report that is incorrect, false or incomplete, on 13 separate occasions; and Subsection 106.11(3), Florida Statutes, which prohibits a candidate from authorizing any expenses from the primary campaign account without sufficient funds on deposit in the primary campaign account to pay the full amount of the authorized expenses, to honor all outstanding checks, and to pay all previously authorized but unpaid expenses, on five separate occasions. Whether Petitioner, as a candidate for the Leon County Commission, District 1, in the 1998 elections, knowingly and willfully violated Subsection 106.19(1)(a), Florida Statutes, which prohibits a person from accepting a contribution in excess of $500 for each election, on one occasion; Subsection 106.19(1)(b), Florida Statutes, which prohibits a person or organization from failing to report a contribution required to be reported by Chapter 106, Florida Statutes, on 53 separate occasions; Subsection 106.19(1)(c), Florida Statutes, which prohibits a person or organization from falsely reporting or failing to report information required by Chapter 106, Florida Statutes, on 130 separate occasions; and Subsection 106.19(1)(d), Florida Statutes, which prohibits a person or organization from making or authorizing any expenditure prohibited by Chapter 106, Florida Statutes, on five separate occasions; and, if so, the appropriate penalty.
Findings Of Fact Based on the testimony, documentary evidence, entire record of this proceeding, the following Findings of Fact are made: At the time of the alleged violations, Petitioner was a candidate for re-election to the office for the Leon County Commission, District 1, for the general election in November 1998. Respondent had won the primary, run-off and general election in 1996. He had been a candidate for election to the office of Leon County Superintendent of Schools in 1992. Petitioner has a Bachelor of Arts degree from Howard University (1981), a Doctorate of Jurisprudence from Howard University (1984), and has done advanced studies in Theology and Ethics at Boston University School of Theology. He has been employed as a Legal Assistant and Training Specialist by the State of Florida. In addition, he has served as a Staff Assistant to a United States Senator and a Special Assistant to a Governor of Florida. He serves as an adjunct professor at a local university. Prior to the alleged violations, Petitioner signed a statement indicating that he had a copy of Chapter 106, Florida Statutes, and that he had read and understood same. Petitioner is a highly educated, sophisticated individual and an experienced candidate. The charging document in this case is the Order Of Probable Cause, which set out in unnumbered paragraphs, each statutory provision that Petitioner allegedly violated and the number of times of each alleged statutory violation. Attached to the Order of Probable Cause, and incorporated in the Order of Probable Cause by reference, is a Statement of Findings which lists with specificity each alleged violation. Specifically, it alleged: Probable cause to believe that the Respondent[²] violated Section 106.07(5), Florida Statutes, prohibiting a candidate from certifying to the correctness of a campaign treasurer's report that is incorrect, false, or incomplete, on 13 occasions; Probable cause to believe that the Respondent violated Section 106.11(3), Florida Statutes, prohibiting a candidate from authorizing any expenses from the primary campaign account without sufficient funds on deposit in the campaign account to pay the full amount of the authorized expenses, to honor all outstanding checks, and to pay all previously authorized but unpaid expenses, on six occasions; Probable cause to believe that the Respondent violated Section 106.19(1)(a), Florida Statutes, prohibiting a person or organization from accepting a contribution in excess of $500 for each election, on one occasion; Probable cause to believe that the Respondent violated Section 106.19(1)(b), Florida Statutes, failure of a person or organization to report a contribution required to be reported by this chapter, on 56 occasions; Probable cause to believe that the Respondent violated Section 106.19(1)(c), Florida Statutes, prohibiting a person or organization from falsely reporting or failing to report information required by this [sic], on 131 occasions. Probable cause to believe that the Respondent violated Section 106.19(1)(d), Florida Statutes, prohibiting a person or organization from making or authorizing any expenditure prohibited by this chapter, on seven occasions. Attached to the Order of Probable Cause, and incorporated in the Order of Probable Cause by reference, is a Statement of Findings which lists with specificity each alleged violation. As it relates to the 13 alleged violations of Subsection 106.07(5), Florida Statutes, paragraph 17 of the Statement of Findings lists each of the 13 Campaign Treasurer's Reports and each alleged unreported or incorrectly reported campaign contribution or expenditure. As it relates to the six alleged violations of Subsection 106.11(3), Florida Statutes, paragraphs 19-26 list each check returned for non-sufficient funds and other relevant information to the alleged violations. As it relates to the alleged violation of Subsection 106.19(1)(a), Florida Statutes, it is discussed with specificity in paragraph 34 of the Statement of Findings. As it relates to the 56 alleged violations of Subsection 106.19(1)(b), Florida Statutes, paragraphs 17 and 36 of the Statement of Findings specifically list each of the unreported contributions. As it relates to the 131 alleged violations of Subsection 106.19(1)(c), Florida Statutes, paragraphs 17, 38 and 39 of the Statement of Findings specifically list the 131 unreported or incorrectly reported expenditures. As it relates to the seven alleged violations of Subsection 106.19(1)(d), Florida Statutes, each of the prohibited expenditures is discussed with specificity in paragraphs 19-26 and 41 of the Statement of Findings. In his Petition for Formal Administrative Hearing, Petitioner "disputes issues of material fact" listed in paragraphs 3-6, 8-10, 13-20, 22-28, 30, and 33-43 of the Statement of Findings which is incorporated by reference into the Order Finding Probable Cause. In so doing, Petitioner specifically delineates his denial of each of the specifically alleged violations incorporated in the Order of Probable Cause by the Statement of Findings and demonstrates his awareness of the specific number of alleged violations and that the Commission intended to impose a fine for each violation. On June 17, 1996, Petitioner opened a campaign account at the Florida A & M University Credit Union which was given the account number 9174. This account was opened for Petitioner's 1996 campaign. The only bank signature card on file for the campaign account is the original card dated June 17, 1996. It designates two signatories: William Proctor and Fredrick T. Smith, campaign treasurer. Although account 9174 was inactive after the end of the 1996 campaign, it was activated for the 1998 campaign. On May 19, 1997, on opening his re-election campaign, Petitioner filed form DS-DE 9 designating himself Campaign Treasurer and the Florida A & M University Credit Union as campaign depository. On January 12, 1998, he filed a second form DS-DE 9 designating Thomas Rollins as Campaign Treasurer. None of the campaign checks or deposit slips offered into evidence were signed by Tom Rollins. An examination of records of the campaign account records produced by representatives of the Florida A & M University Credit Union indicate that Petitioner personally handled essentially all campaign banking activities. In his sworn responses to inquiries directed to unreported transfers of funds from the campaign account to Petitioner's personal accounts, unreported cash received by Petitioner at the time he deposited checks payable to the campaign account, cash withdrawals, unreported campaign contributions, and other financial irregularities, Petitioner typically gave the following answer: My campaign staff was instructed to record all expenditures [or contributions ] for reporting purposes. However, this expenditure was not reported because the campaign staff included inexperienced, non- professional clerical and bookkeeping personnel who did not always follow instructions to record the contributions and expenditures for reporting purposes. In addition, the campaign had a high turnover of staff, which further complicated efforts to insure that staff properly followed instructions. The Florida A & M University Credit Union will, at any time during business hours, print-out the last 30 days' account activity for a $3.00 fee. This allows an account holder to keep track of deposits, paid checks, issued checks that have not yet been paid, etc. Campaign account records show that this was done in August 1998. On July 27, 1998, prior to the first primary election, a $500 transfer was made from the account of William Proctor, Sr. and Patricia Proctor, account number 5016, to Petitioner's campaign account. This transfer is not reported in the campaign treasurer's report. Petitioner's campaign account records indicate that a transfer of $1,000 was made to Petitioner's campaign account from the account of William Proctor, Sr., and Patricia Proctor, account number 5016, which was maintained at the Florida A & M University Credit Union, on October 12, 1998, after the first primary and prior to the general election. This transfer is not reported in the campaign treasurer's report. In addition to the $1,500 in unreported contributions that were transferred from an individual account within the Florida A & M University Credit Union mentioned in paragraphs 17 and 18, an examination of the campaign account records reveals an additional $4,900 in unreported contributions was transferred into the campaign account from another account maintained by Petitioner within the Florida A & M University Credit Union. Petitioner's campaign account records indicated that the following 53 contributions totaling $8,075 were received by the campaign but were not reported in the campaign treasurer's reports: DATE CONTRIBUTOR AMOUNT 7-11-97 1996 Bill Proctor Campaign, Account No. 5016 $345.00 10-6-97 Eight Star Land Company $50.00 10-6-97 A. L. Buford, Jr. $50.00 10-9-97 Lewis Buford $100.00 10-19-97 Barbara Rouse $25.00 10-23-97 Charles Lockhart $150.00 10-28-97 Dr. Clinitia Ford $50.00 12-19-97 R & R Corporate Systems $200.00 2-10-98 Rudolf Maloy $100.00 4-13-98 Mitchell Asphalt $450.00 4-14-98 Hannah Plumbing $100.00 4-14-98 Suber & Weaver Equipment Repair $50.00 4-16-98 Tallahassee Mack Sales $250.00 4-16-98 Capital City Lawn Care $100.00 4-22-98 Eli Roberts & Sons, Inc. $100.00 4-27-98 Fort Knox Center $250.00 4-30-98 McKenzie Tank Lines $150.00 5-7-98 Gilbert Brown $50.00 6-5-98 Jimmy R. Jones Construction $250.00 7-17-98 Walter T. Mathis $100.00 7-20-98 Ron and/or Wanda Brafford $125.00 7-24-98 William and/or Deborah Grudice $100.00 7-27-98 Transfer from Patricia Proctor Account No. 1912 $500.00 7-27-98 Transfer from Patricia Proctor Account $400.00 7-27-98 No. 1912 Transfer from William Proctor Account $500.00 7-28-98 No. 5016 Jessie Dennis $100.00 7-29-98 Mary Middlebrooks $300.00 8-1-98 John and/or Phyllis Green $100.00 8-6-98 James H. Tookes $100.00 8-6-98 Charles Lockhart $100.00 8-7-98 Angela McNair $15.00 8-8-98 Marion Camps $100.00 8-9-98 Estate of Reginal Settles-Yolanda Foutz $100.00 8-11-98 Settles Ruby Seymour Bass $100.00 8-12-98 Martin and/or Susan Proctor $100.00 8-13-98 Cherry Bluff $200.00 8-13-98 Realtors PAC of Florida $500.00 8-18-98 Alfreda Blackshear $100.00 8-19-98 Davis Insurance Agency $25.00 8-19-98 John Haughabrook $50.00 8-19-98 Brown's Paint and Body Shop $100.00 8-20-98 Winnie Davis $100.00 8-24-98 Limm-Ann Griffin $50.00 9-4-98 Charles A. Francis $100.00 9-22-98 Allan Franklin $50.00 9-23-98 Marie Roy $50.00 9-24-98 Mitchell Asphalt $500.00 10-8-98 Marcus Robinson $25.00 10-9-98 Michael Moore $150.00 10-17-98 Sharon Durham $15.00 10-27-98 Catherine Gretsch $50.00 10-27-98 Catherine Gretsch $50.00 11-1-98 Rev. Jaycee Oliver $300.00 Petitioner's campaign account records indicated that the following 35 expenditures totaling $11,149.11 were made by campaign check but were not reported in the campaign treasurer's reports: DATE PAYEE AMOUNT 7-24-98 Lamar Advertising (Check No. 1003) $3,930.00 7-24-98 Sears (Check No. 1004) $26.92 8-5-98 Bill Doolin (Check No. 1003) $25.00 8-15-98 Petrandis Realty (Check No. 1004) $700.00 8-6-98 Morrison's (Check No. 1007) $12.38 8-12-98 Sprint (Check No. 514) $280.00 8-18-98 Bethel Family (Check No. 1012) $30.25 8-21-98 Feron Jones (Check No. 1030) $100.00 8-26-98 Gallery Graphics (Check No. 1076) $350.00 8-18-98 Payee Illegible (Check No. 516) $401.25 8-29-98 Jumbo Sports (Check No. 1077) $121.79 8-29-98 Knights of Pythias (Check No. 1078) $85.00 9-2-98 Sprint (Check No. 520) $269.78 9-2-98 Sprint (Check No. 521) $30.00 9-23-98 Zakiya Williams (Check No. 1079) $300.00 9-23-98 Arthur Gaines (Check No. 1080) $50.00 9-27-98 Angelo's Seafood (Check No. 1102) $68.81 9-28-98 Books-A-Million (Check No. 1103) $29.10 9-28-98 Morrison's (Check No. 1093) $10.93 10-2-98 Zakiya Williams (Check No. 1105) $150.00 10-7-98 All-World (Check No. 1106) $565.00 10-8-98 Comcast (Check No. 1107) $350.00 10-8-98 Comcast (Check No. 1108) $2,023.00 10-9-98 Danny Harris (Check No. 1081) $300.00 10-14-98 CUP, Inc. (Check No. 1109) $25.00 10-20-98 Ada Ibraahim (Check No. 1114) $70.00 10-2-98 Zakiya Williams (Check No. 1086) $125.00 10-26-98 Olive Garden (Check No. 1129) $13.67 10-27-98 Morrison's (Check No. 1091) $12.10 11-5-98 Aaron Rental (Check No. 1093) $310.92 11-5-98 Sprint (Check No. 1094) $245.80 11-9-98 Morrison's (Check No. 1115) $22.26 11-17-98 Ming-Tree (Check No. 1095) $20.80 11-24-98 Gene Sutton (Check No. 1116) $75.00 11-28-98 Soft-Touch (Check No. 1098) $20.00 Petitioner's campaign account records indicated that 56 cash withdrawals were made from the campaign account totaling $20,070.10. None of these cash withdrawals were listed on the campaign treasurer's reports. Sixteen "official checks" (i.e., guaranteed payment checks paid for by withdrawals from the campaign account for which his campaign account paid the amount of the check plus a fee of $2 per check, similar to a cashier's check issued by a bank), totaling $9,000.10 were issued by the Florida A & M University Credit Union, and apparently used to pay campaign debts. None of these official checks were reported in the campaign treasurer's reports. A listing of these "official checks" follows: DATE PAYEE AMOUNT 4-21-98 Eugene Stanton (Check No. 144650) $300.00 4-21-98 Ricky Coring (Check No. 144716) $1,750.00 6-28-98 Lamar Advertising $500.00 7-1-98 Gene Sutton (Check No. 145837) $100.00 7-1-98 Lamar Advertising (Check No. 145843) $530.00 7-1-98 Rugenia Speight (Check No. 145844) $200.00 7-7-98 Lamar Advertising (Check No. 146000) $130.00 7-20-98 Augustus Colston (Check No. 146159) $600.00 9-1-98 The Links, Inc. (Check No. 146837) $150.00 9-1-98 Aaron Roberts (Check No. 146838) $675.10 9-30-98 WHBX Radio (Check No. 147256) $1,700.00 10-1-98 M. Feron Jones (Check No. 147305) $210.00 10-1-98 WHBX Radio (Check No. 147306) $70.00 10-14-98 Zakiya Williams (Check No. 147507) $150.00 10-16-98 Zakiya Williams (Check No. 147528) $350.00 11-4-98 Petrandis Realty (Check No. 147835) $1,585.00 Although the evidence is inconclusive, it appears that all or most of the "official checks" were the result of cash withdrawals from the campaign account. Assuming that to be the case, approximately $11,000 in cash withdrawals remain unaccounted for. In connection with making 12 deposits to the campaign account, cash was deducted from each deposit. The amount of cash received totaled $1,460. The use of this cash was not shown in the campaign treasurer's reports. Four transfers totaling $2,900 were made from the campaign account to accounts numbered 9120-2 and 6038-2 which are Petitioner's personal accounts. These transfers were not listed in the campaign treasurer's reports. The records of Petitioner's campaign account indicate that the following checks in the total amount of $4,132.93 were presented and returned for insufficient funds: CHECK NO. PAYEE AMOUNT OF CHECK 1002 Unknown $319.93 1016 WHBX $1,170.00 1017 WHBX $600.00 1108 Comcast $2,023.00 1097 Unknown $20.00 An examination of campaign checking account records reveal that fees were charged by the campaign depository for returned checks and other special banking services, totaling $165.00, which were not listed in the campaign treasurer's reports. In sum, 123 expenditures (excluding bank fees), amounting to $44,579.31 were not listed in Petitioner's campaign treasurer's reports during the 1998 campaign. On March 2, 1999, Petitioner filed an amended campaign treasurer's report for the period October 10, 1998 to October 29, 1998, indicating that he had loaned his campaign $8,000 on October 12, 1998. The campaign account does not reflect such a loan. The original campaign treasurer's report for the period October 10, 1998 to October 29, 1998, reflects "loans $8,000” without further documentation. Petitioner certified the correctness of 13 campaign treasurer's reports each of which was incorrect, false, or incomplete. On October 8, 2001, Petitioner was convicted of 8 counts of violating Section 106.19(1)(a), Florida Statutes (failure to report campaign contributions during the 1998 campaign), adjudicated guilty, and sentenced to 12 months probation, to be served concurrently, and 100 hours of community service.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is Recommended that the Florida Elections Commission enter a final order: Imposing a civil penalty in the amount of $13,000 for 13 violations of Subsection 106.07(5), Florida Statutes. Imposing a civil penalty in the amount of $2,500 for five violation of Subsection 106.011(3), Florida Statutes. Imposing a civil penalty in the amount of $5,300 for 53 violations of Subsection 106.19(1)(b), Florida Statutes. Imposing a civil penalty in the amount of $59,000 for 130 violations of Subsection 106.19(1)(c), Florida Statutes. Not imposing an enhanced penalty, as provided in Subsection 106.19(2), Florida Statutes, for Petitioner's violation of Subsection 106.19(1)(d), Florida Statutes. Dismissing the alleged violations of Subsection 106.19(1)(a), Florida Statutes. DONE AND ENTERED this 25th day of January, 2002, in Tallahassee, Leon County, Florida. JEFF B. CLARK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 25th day of January, 2002.
The Issue Whether Respondent violated the provisions of Section 104.051(2), Florida Statutes (2002), by willfully neglecting to perform her duties as alleged in the 55-count Order of Probable Cause and, if so, the penalties that should be imposed.1
Findings Of Fact THE PARTIES Petitioner is created by Section 106.24, Florida Statutes, and has the authority conferred upon it by the Florida Election Code. Respondent was elected as the Broward County SOE in November 2000. She was sworn into office in January 2001. Respondent was serving as the Broward County SOE for the 2002 Primary. Respondent was suspended from office by Governor Jeb Bush in November 2003. At the time of the final hearing in this proceeding, Respondent was not working, had little equity in any asset, and owed money to her attorneys and to various credit card companies. She was borrowing money from relatives to meet monthly expenses. BCSOE OFFICE At the time of the 2002 Primary, the Broward County SOE Office (BCSOE Office) had a main office in the Broward County Governmental Center (BCGC), six regional offices, and a facility referred to as the Voting Equipment Center (VEC). Respondent had her main office in the BCGC. The VEC was essentially a warehouse at which voting equipment and supplies were stored. The six regional offices were spread throughout Broward County. At the time of the 2002 Primary, there were more that 60 full- time employees of the BCSOE Office.3 Walter Foeman served as Respondent’s Deputy SOE for the 2002 Primary. Respondent replaced the employee who had served as the Deputy SOE for Respondent’s predecessor in office. Pat Nesbit served as chief of the Poll Worker’s Department. Ms. Nesbit had the responsibility of recruiting and training poll workers. Ms. Nesbit was a veteran employee of the BCSOE Office of approximately 12 years.4 Mr. Foeman was Ms. Nesbit’s direct supervisor. Barbara Adams was the chief financial officer for the BCSOE Office. Carol Hill was a director in the BCSOE office. Petitioner attempted to establish that Respondent’s management style and her hiring practices created dissension among the employees of the BCSOE Office so that it became a matter of us (the employees from Respondent’s predecessor in office) versus them (the new employees hired by Respondent). That attitude did exist to a degree within the office and was exacerbated by staff turnover, including supervisors who had served Respondent’s predecessor in office. However, Petitioner did not prove that the negative attitude within the office was a contributing factor to the 23 precincts opening late or the 32 precincts that failed to comply with Governor Bush’s Executive Order. As will be demonstrated below, Respondent’s management style of totally relying on staff contributed to the problems with the 2002 Primary that are at issue in this proceeding. PRE-ELECTION PLANNING The 2002 Primary represented a considerable challenge for Respondent, who was relatively inexperienced. As a result of legislative and congressional redistricting, the number of precincts in Broward County went from 619 for the 2000 election to 809 for the 2002 election. For the 2002 election there were approximately 500 polling places throughout the county.5 New touch-screen voting equipment was utilized for the first time in the primary election, which required training of staff and poll workers. That training was conducted. These voting machines replaced the infamous punch card ballots that had been used in the 2000 Presidential election. For the first time provisional ballots were utilized. A provisional ballot would be issued to an individual when his or her name could not be located in the precinct register. The provisional ballot would be counted only if it was subsequently verified that the voter was in the proper precinct. While the use of provisional ballots required training for poll workers, there was no evidence that the use of provisional ballots delayed the opening of any precincts or contributed to any precinct’s failure to comply with Governor Bush’s Executive Order. Each county is divided geographically into voting precincts. Each precinct has its own poll workers, including a precinct clerk and a deputy precinct clerk. For the 2002 Primary (809 precincts and approximately 500 polling places), Respondent’s staff determined that a total of 4,941 precinct poll workers were needed to conduct the election. Poll worker recruitment and training is an essential part of conducting an election. Ms. Nesbit and her department recruited experienced poll workers using a computer data base of poll workers who had worked prior elections and recruited new poll workers at community functions and from business, educational, and governmental entities. There was insufficient evidence to establish that there were too few poll workers recruited or that the poll workers were inadequately trained. The poll workers were provided appropriate checklists and appropriate instructions as to how and when to report for duty. To prepare for the 2002 Primary, weekly staff meetings were held to assess the BCSOE Office’s readiness for the election. On the Friday before the Tuesday election, Respondent met with all the managers in the office. Based on the reports that were provided, Respondent reasonably concluded that the office was ready for the election. The VEC is responsible for putting together a box of supplies that is referred to as the “gray box.” Included in the gray box are various signs, ballots, envelopes, and other supplies that are needed by the poll workers. The VEC is also responsible for placing additional voting materials into what is referred to as the precinct’s “blue bag”. The blue bag contains materials that are essential to the opening of the poll. Among other items, the blue bag contains the poll register (which is a list of the precinct’s eligible voters), the precinct’s Personal Electronic Ballots (which are necessary to activate the precinct’s voting machines), and a checklist (which the precinct clerks are to follow to make sure that the election is properly conducted). The precinct clerk is in charge of the precinct’s polling place the day of the election, but his or her official duties begin the day before election day. The VEC is responsible for arranging delivery of the voting equipment and the gray box to each precinct at its polling place prior to election day. A trucking company was hired for this purpose for the September 2002 primary election. The precinct clerk is responsible for visiting the polling place the day prior to the election to verify that the equipment and the gray box have been delivered. In the gray box is a white form that the precinct clerk is responsible for taking to the regional office when the clerk picks up the blue bag. The precinct clerk uses the form to verify that the correct number of voting machines and all required materials in the gray box have been delivered to the precinct’s polling place. The precinct clerk also verifies that he or she will be able to open the facility on election day. The VEC is responsible for delivering all blue bags to the appropriate regional site. The precinct clerk is responsible for going to the appropriate regional site to pick up the blue bag the day before the election. The precinct clerk must empty the contents of the blue bag while at the regional center and, using a checklist, verify in front of a regional office staff person that all items that are required to be in the blue bag have been included. If all items are present, the precinct clerk and a regional center staff worker sign the checklist and the precinct clerk keeps the bag until it is time to open the polls the next morning. Any item missing from the blue bag should be secured before the precinct clerk leaves the regional office or arrangements should be made to deliver the missing item(s) to the polling place the next morning in time for the precinct clerk to open the precinct for voting by 7:00 a.m. Pick up of the blue bags for the 2002 Primary was to be between 1:00 p.m. and 4:00 p.m. for one regional center and between 9:00 a.m. and 1:00 p.m. at the other regional centers on the day before the election. The precinct clerk is responsible for opening and closing the poll and for overseeing the vote while the poll is open. The assistant precinct clerk performs the clerk’s duties if the clerk is absent or unable to perform his or her duties. The assistant clerk also answers the phone, deals with the public, and generally assists in the conduct of the election. CANCELLATIONS BY PRECINCT CLERKS On Friday, September 6, 2002, Ms. Nesbit learned that some individuals who had agreed to serve as precinct clerks had subsequently declined to serve. Ms. Nesbit made reasonable efforts to replace the precinct clerks who she knew had cancelled as of that Friday. On the day before the 2002 Primary, Ms. Nesbit and her staff spent the day talking to various poll workers about various problems. Ms. Nesbit heard during the day from more than one precinct clerk that there were long waiting lines at the regional centers (up to two hours) and that some precinct clerks had become frustrated and had left without picking up the precinct’s blue bag from the precinct’s regional site. Ms. Nesbit received no communication from any regional site that blue bags were not being picked up by precinct clerks and she did not know that those blue bags were being returned to the VEC until approximately 9:00 p.m. that evening when Damian Robinson, an employee of the BCSOE Office’s outreach department, told her that approximately 50 blue bags had been returned to the VEC because the blue bag had not been picked up at the regional site by a precinct clerk. Mr. Robinson also told her that a fax had been sent to her with a list of the precincts whose blue bag had not been picked up and a list of the precincts whose blue bag was incomplete when it was picked up. Ms. Nesbit had been working all day in an area that was not close to the fax machine and was unaware that the fax had been sent. Ms. Nesbit retrieved the fax, which was not introduced as an exhibit. Ms. Nesbit testified that there were 30 to 35 precincts listed on the fax, but she did not remember the number of precincts on each list. By midnight, there were approximately 15 blue bags at the VEC that had not been picked up. The total number of incomplete bags that had been picked up was not established and it was not established what was missing from each bag. If an essential item, such as a poll register, was missing from a blue bag, the precinct clerk could not open the precinct’s polling place for voting until someone from the BCSOE Office delivered the missing item to the precinct’s polling place. Ms. Nesbit saw Mr. Foeman and Ms. Adams shortly after she saw Mr. Robinson and read the fax. Ms. Nesbit gave the information she had received to Mr. Foeman and Ms. Adams. Ms. Nesbit proposed to Ms. Adams and Mr. Foeman that sufficient staff of the BCSOE Office be called that night and be ordered to appear at the VEC the following morning at 5:00 a.m. for the purpose of delivering each undelivered bag and missing material to the appropriate precinct. Ms. Nesbit contemplated that poll workers (other than the missing precinct clerk) would be present at the polling place and that one of those workers could substitute as the precinct clerk. Ms. Adams informed Ms. Nesbit that they were not going to call BCSOE Office employees at that time of night. As she and Mr. Foeman turned and left Ms. Nesbit, Ms. Adams said to Mr. Foeman: “We’ll take care of this.” Ms. Nesbit received no further instructions from any of her supervisors that night. Respondent returned to her home at approximately 9:00 p.m. on the day before the 2002 Primary. When she left, she knew that some precinct clerks had cancelled, but she relied totally on Ms. Nesbit and four employees under Ms. Nesbit’s supervision, to resolve the problem. Shortly after Respondent returned home, Mr. Riley informed her by telephone that approximately 15 blue bags had been returned to the VEC and that a news reporter had contacted him about the matter. Respondent’s reaction was to try to contact a fellow SOE for advice. After several calls, Respondent spoke with Gertrude Walker, an experienced SOE from St. Lucie County, Florida. After Respondent told her about the undelivered blue bags, Ms. Walker told Respondent that she had a serious problem and that she should immediately make arrangements to have staff available to deliver the blue bags to the appropriate precinct and to make sure the precinct opened on time. The telephone call between Respondent and Ms. Walker occurred around midnight on the eve of the election. Ms. Walker specifically advised Respondent to wake staff up and have them ready for action the next morning. Respondent knew about the problems with the undelivered bags for almost three hours before she talked to Ms. Walker. Why Respondent felt the need to verify with another SOE that the undelivered blue bags constituted a serious problem was not clear. Why she did not follow Ms. Walker’s advice was also not clear.6 Instead, Respondent tried to contact Mr. Foeman at his office and at his home. When she could not reach him, she left a voice message ordering him to make sure that all precincts opened on time. There was no evidence that Respondent talked to Ms. Adams or Ms. Nesbit that evening. Ms. Adams called Linda Levinson, the BCSOE Office Assistant Director of Finance and Administration, at 4:00 a.m. the morning of the 2002 Primary and ordered her to report to the VEC immediately. Ms. Adams was Ms. Levinson’s direct supervisor. As will be discussed below, Ms. Levinson helped deliver blue bags to precincts that morning. POLLS MUST OPEN AT 7:00 A.M. Section 100.011(1), Florida Statutes, regulates the opening and closing times for polls as follows: The polls shall be open at the voting places at 7:00 a.m. on the day of the election, and shall be kept open until 7:00 p.m., of the same day, and the time shall be regulated by the customary time in standard use in the county seat of the locality. Respondent knew that polls had to be open at 7:00 a.m. on the day of the election. THE EXECUTIVE ORDER On September 10, 2002, Governor Bush entered the following Executive Order Number 02-248: WHEREAS, today, September 10, 2002, is the regularly-scheduled date for the conduct of primary elections throughout the state; and WHEREAS, the Secretary of State has reported to me that there have been substantial delays in the opening of certain polling places in Broward and Miami-Dade Counties; and WHEREAS, today’s election is the first time that many election officials will have had an opportunity to implement the major technological and procedural changes mandated by the recent wholesale revision of our state’s election code; and WHEREAS, under this unique combination of circumstances, there is a possibility that certain residents of our state could be deprived of a meaningful opportunity to vote and that certain election officials will be unable to conduct an orderly election; and WHEREAS, in light of the above-described conditions and in an abundance of caution, the Secretary of State has requested that I order that polling places throughout the state remain open for an additional two hours beyond their regularly-scheduled closing times; and WHEREAS, the Secretary of State has made the request after consultation with the Attorney General of Florida, the President of the Florida State Association of Supervisors of Elections, and the chairmen of the Florida Republican and Democratic parties; NOW, THEREFORE, I JEB BUSH, as Governor of Florida, by virtue of the authority vested in me by Article IV, Section 1(a) of the Florida Constitution, by the Florida Elections Emergency Act, and by all other applicable laws, do hereby promulgate the following Executive Order, to take immediate effect: I hereby declare that, based on the above- described conditions, a state of emergency exists. In order to ensure maximum citizen participation in the electoral process and to protect the integrity of the electoral process, for today’s election all polling places in the state shall remain open for two hours beyond their regularly scheduled closing times. FACTS DEEMED ADMITTED7 A total of 24 precincts in Broward County failed to open by 7:00 a.m. on September 10, 2002. In the list that follows, the precinct number is followed by the time that morning that precinct actually opened with the exception of precinct 5K, whose opening time was unknown. The following list contains 23 precincts, with each listed in the order in which it appears as a separate count in the Petitioner’s Order of Probable Cause. In addition to the precincts listed below, Precinct 13D opened five minutes late. Precinct 13D is not included in the following list because no count in Petitioner’s Order of Probable Cause was based on the failure of that precinct to open at 7:00 a.m. Precinct 50C (8:00 a.m.) Precinct 10D (7:30 a.m.) Precinct 11D (7:30 a.m.) Precinct 5E (7:20 a.m.) Precinct 7E (8:45 a.m.) Precinct 3F (8:30 a.m.) Precinct 5K (unknown) Precinct 15K (7:30 a.m.) Precinct 9M (9:15 a.m.) Precinct 31N (7:55 a.m.) Precinct 38N (7:55 a.m.) Precinct 10R (7:30 a.m.) Precinct 18V (10:00 a.m.) Precinct 23V (8:00 a.m.) Precinct 11W (10:00 a.m.) Precinct 21X (7:15 a.m.) Precinct 22X (9:00 a.m.) Precinct 23X (7:10 a.m.) Precinct 32X (12:20 p.m.) Precinct 37X (8:30 a.m.) Precinct 62X (11:00 a.m.) Precinct 63X (8:30 a.m.) Precinct 65X (11:00 a.m.) The following 32 Broward County precincts failed to comply with Executive Order Number 02-248 by failing to remain open for two hours beyond their regularly scheduled closing time of 7:00 p.m. on September 10, 2002: 13A, 17A, 19C, 22C, 24C, 21E, 1G, 3G, 6G, 11J, 19J, 24J, 15L, 16L, 27M, 38M, 40N, 51Q, 36R, 75R, 1T, 12T, 7U, 34V, 35V, 36V, 44V, 8W, 12Y, 14Y, 7Z, and 23J. These precincts are listed in the order they appear in Counts 24-55 of the Order of Probable Cause. In addition to the foregoing, the following facts were deemed admitted based on Respondent’s failure to respond to Petitioner’s First Request for Admissions: Thirteen precincts opened late due to a lack of election supplies and the remainder opened late due to a lack of personnel. Because of delays in opening the polls in Broward and one other county on September 10, 2002, Governor Bush issued Executive Order Number 02-248 requiring all polling places in the State of Florida to remain open for an additional two hours beyond their regularly-scheduled closing time or until 9:00 p.m. The Broward County SOE Office received Governor Bush’s Executive Order at 3:41 p.m. Miriam Oliphant instructed her staff not to say anything about the Executive Order until she gave further instructions. Respondent, upon receiving the Executive Order at 3:41 p.m., assigned Rick Riley, an independent contractor hired by the SOE’s Office, the task of writing a press release to the person in charge of each precinct. Mr. Riley made the final revisions to the press release at 4:49 p.m. after Walter Foeman completed his last review. It took from 3:41 p.m. until approximately 6:15 p.m. for Miriam Oliphant’s staff and volunteers to begin notifying the [809] precincts.[8] The following problems occurred at various precincts: 19 precincts could not run a zero tape 1 precinct had incorrect time precinct had incorrect date precinct locations were unable to select [political] parties 2 precincts did not have an ADA voting unit 4 precincts did not have a cellular phone 6 precincts did not have registers 23 precinct clerks did not pick up supplies 2 precincts did not receive communication package or activation card BLUE BAG DELIVERY The scene at the VEC was chaotic on the morning of the election with no one, including Respondent, taking charge or attempting to organize the bag delivery in a rational manner. Respondent testified that she panicked that morning because she was very angry with her staff, who she believed had let her down. Shortly before 6:00 a.m., Respondent ordered Mr. Foeman to get the blue bags and other materials delivered without giving further instructions and without devising a rational plan for such delivery. Ms. Levinson delivered three blue bags and opened three precincts in the Pembroke Pines area that morning. She was not instructed where to go and got lost. Ms. Levinson opened her last precinct around noon on the day of the election. Mr. Riley was recruited to deliver blue bags. He could not testify to how many he delivered, where he delivered them, or when he delivered them. He could not testify that the precincts to which he delivered opened by 7:00 a.m. Respondent delivered blue bags that morning. She was in a van with her driver, Mike Lindsay (a representative of the Department of State, Division of Elections), Respondent’s attorney, and Jimmy Davis (an employee of BCSOE Office outreach program). Respondent’s group did not deliver the last blue bag until shortly after noon on the day of the election. There was no evidence as to whether the other three blue bags were delivered in time for the precincts to open at 7:00 a.m. Respondent’s group had difficulty locating at least one precinct. Respondent could not testify whether her group had a map or accurate driving directions to each precinct. Michelle Feinberg was a precinct clerk for a precinct in Plantation for the 2002 Primary. When Ms. Feinberg picked up her precinct’s blue bag from the regional center the day before the election she inventoried the bag and discovered that it lacked essential voting material (including the precinct register). Staff at the regional center told her that the missing material would be delivered to her precinct in time for her to timely open the poll. That voting material was not delivered to the precinct on the morning of the election in time for the precinct to open by 7:00 a.m. The poll opened approximately 30 minutes late because the voting materials were not delivered on time. There was insufficient evidence to identify the other employees who delivered blue bags and other materials to the various precincts. Respondent knew shortly after 9:00 p.m. on September 9, 2002, that approximately 15 blue bags had not been picked up by the precinct clerk. She knew that the precinct could not open without the blue bag. She also should have suspected that each precinct clerk who failed to pick up the precinct’s blue bag would likely not show up for duty the next day. Respondent knew that she was mandated by statute to open all precincts for voting at 7:00 a.m. the next day. After learning of the problem with the blue bags, Respondent failed to take reasonable action either the evening before the election or the morning of the election to ensure that each blue bag and other required voting material would be delivered to the appropriate precinct. Likewise, she failed to take reasonable action either the evening before the election or the morning of the election to ensure that the precincts whose clerk had not picked up the precinct’s blue bag the day prior to the election would be staffed with a precinct clerk. FAILURE TO COMPLY WITH THE EXECUTIVE ORDER The BCSOE Office received Governor Bush’s Executive Order 02-248 at 3:41 p.m. on the day of the election. Respondent immediately instructed Mr. Riley to prepare a memorandum to the poll workers pertaining to the extended hours for the polls and basic instructions on how to close the polls. Respondent further instructed her staff not to call precincts until they had the memorandum. Mr. Riley made the last revision of the memorandum at 4:49 p.m. It was not until 6:04 p.m. that Respondent gave the memorandum to Ms. Nesbit and instructed her and assigned staff to read the memorandum to each precinct clerk. The following is the memorandum (Memorandum): Due to delays in the opening of certain polls, voting for the September 10, 2002, primary election has been extended by Governor Jeb Bush, for all polling locations throughout the State of Florida (pursuant to Executive Order 02-248), for an additional two hours beyond their regularly-scheduled closing time, from 7 pm till 9 pm. After 7 pm the following voting procedures will be in effect. When the Personal Electronic Ballots (PEB) is [sic] inserted, the herein below listed questions will appear: Close menu options, follow the sequence below. Close terminal Lock terminal Press no For each voter after 7 pm, and until 9 pm the poll worker that is activating the ballot shall press the box designated for no, and the ballot page will appear. Please due (sic) not press the close terminal until 9 pm. All terminals should be closed using the green master Personal Electronic Ballot (PEB) at 9 pm. Carol Hill and her staff were responsible for copying the Memorandum and for dividing the precincts into call lists. Each participating staff member was given a copy of the Memorandum and a list of precincts with telephone numbers to call. It took approximately ten minutes for Carol Hill’s staff to copy the memorandum and to make the calling assignments. Errors were made while making the calling assignments. Some of the precincts were on the calling lists more than once while other precincts were omitted. As a result, some precincts received two calls from staff while others received none. After approving the contents of the Memorandum, Respondent had no further involvement with advising the 809 precincts that the Governor had extended the voting day by two hours. Respondent did not participate in the actual calling of the precincts or in making the call assignments. Respondent testified that she did not know that some polls had closed at 7:00 p.m. until the next day. There was no rational explanation for the time that elapsed from the time the BCSOE Office received the Executive Order (3:41 p.m.) until the time staff began contacting poll workers (6:15 p.m.). Respondent knew that she was responsible for ensuring that all precincts complied with the Executive Order. Respondent abdicated that responsibility to her staff without providing any oversight. Petitioner established that some of the 32 precincts that failed to comply with the Executive Order did so because the precinct clerk was not notified of the Executive Order, despite having an operable telephone.
Recommendation Based on the foregoing findings of fact and conclusions of Law, it is RECOMMENDED that Petitioner enter a Final Order that finds Respondent guilty of two violations of Section 104.051(2), Florida Statutes, and imposes against her an administrative fine in the total amount of $2,000.00. DONE AND ENTERED this 29th day of August, 2005, in Tallahassee, Leon County, Florida. S CLAUDE B. ARRINGTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 29th day of August, 2005.
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 Respondent David A. Siegel (Siegel) formed a wholly owned corporation known as Central Florida Investments, Inc., (CFI) in approximately 1970. Thereafter, CFI acquired Investment Industries of Florida, Inc., (IIF) in approximately 1980. Siegel is President of both CFI and IIF and owns one-hundred percent of the stock in both corporations. On or about September 8, 1980, IIF purchased property in Lake County which was divided into Tract A and Tract B. Tract A consisted of approximately 120 acres, was subdivided into 49 lots, and was sold to individual purchasers by Paul W. Cotton and Paul A. Buzzella; real estate salesmen working for Siegel and IIF. Sales in Tract A occurred in 1980 and 1981 to approximately forty purchasers, and only one lot in Tract A was sold after December 1, 1981. The last sale in Tract A took place in February, 1983, was a referral, and did not involve Cotton or Buzzella. Paul W. Cotton formed First Orlando Properties (FOP) on or about September 17, 1981. On or about December 1, 1981 Cotton purchased six lots from IIF and Siegel in Tract B for the purpose of resale to individual purchasers. Tract B consisted of approximately 200 acres, subdivided into 48 lots. Based on the testimony of Cotton and Siegel, it is evident that Siegel had agreed to sell all of Tract B to Cotton in eight, six lot installments. This arrangement was for the financial convenience of Cotton, but an inference is drawn that Respondents benefited from Cotton's sales activity in Tract B through the periodic execution of each additional installment. After his purchase of the first installment consisting of six lots on or about December 1, 1981, Cotton sold no more lots in Tract A. Cotton admits that he "pre-sold" several lots in Tract B prior to FOP acquiring its interest in these lots on December 1, 1981 and while he was still selling lots in Tract A for Siegel and IIF. The Agreement of Purchase and Sale for six lots in Tract B which Cotton received on or about December 1, 1981 incorrectly indicates that CFI was the property owner and seller. Siegel executed the Agreement on behalf of CFI. This was an error which Siegel admits since Tract B was actually owned by his other company, IIF. The same error as to the seller was made in the Agreements for each additional six lot installment executed on or about February 1, 1982, April 1, 1982, August 15, 1982, September 1, 1982, October 6, 1982, December 1, 1982, and April 1, 1983. Siegel has agreed to take whatever action is necessary to correct any title problems which purchasers in Tract B may have as a result of this error. Respondents did not register the land in question located in Lake County with Petitioner at any time material hereto, nor is there evidence that purchasers were afforded a reasonable opportunity to examine a public offering statement concerning such land prior to its sale. There were less than fifty (50) lots each in Tracts A and B at all times material hereto, and these tracts are contiguous. Cotton sold lots in both tracts, and pre-sold approximately thirty-six lots in Tract B while he was selling lots in Tract A and before he acquired any interest in Tract B. There were also several purchasers in common in both tracts. There were less than forty-five (45) purchasers each in Tracts A and B, but combining the purchasers in each tract there were more than forty-five (45) purchasers of the land in question in this case located in Lake County.
Recommendation Based upon the foregoing, it is recommended that Petitioner enter a Final Order which: Dismisses all charges in Case No. 85-0008 against Respondent Central Florida Investments, Inc. Imposes an administrative fine of $5000 each against Respondents Investment Industries of Florida, Inc. and David A. Siegel in Case Nos. 85-0009 and 85-0010 for a total fine of S10, 000. Requires Respondents to correct, within ninety (90) days, any title problems which purchasers in Tract B may have as a result of the matters set forth in Finding of Fact 5. Requires Respondents to cease and desist from offering or disposing of any interest in subdivided land which is subject to this proceeding until a valid order of registration is obtained. DONE and ENTERED this 21st day of April, 1986, at Tallahassee, Florida. DONALD D. CONN, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 Filed with the Clerk of the Division of Administrative Hearings Filed with the Clerk of the Division of Administrative Hearings this 21st day of April, 1986. COPIES FURNISHED: Thomas A. Klein, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Leonard Lubart, Esquire Michael Marder, Esquire 12000 Biscayne Boulevard Suite 204 North Miami, Florida 33181 James Kearney, Secretary Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 APPENDIX Rulings on Petitioner's Proposed Findings of Fact: Adopted in Finding of Fact 1. Although the evidence is consistent with this proposed finding, it is not adopted since it is unnecessary. Adopted in Finding of Fact 2, 3. Rejected in part in Finding of Fact 2, and adopted in part in Finding of Fact 3. Adopted in part in Finding of Fact 3, 4, but rejected in part in Finding of Fact 7 and as otherwise not based on competent substantial evidence. Adopted in part in Finding of Fact 2, but otherwise rejected as irrelevant and unnecessary. Rejected as irrelevant, not based on competent substantial evidence, and as a conclusion of law rather than a finding of fact Adopted in part in Finding of Fact 3, 7, 8. Rulings on Respondents' Proposed Finding of Fact: (Respondent has not numbered its proposed findings of fact, and therefore in order to make a ruling on proposed findings of fact paragraphs on pages 3 through 20 under the heading Findings of Fact have been consecutively numbered.) Adopted in Finding of Fact 2. Adopted in Finding of Fact 1. Adopted in Finding of Fact 5. Rejected as a conclusion of law Adopted in Finding of Fact 2. Adopted in Finding of Fact 3. Adopted in part in Finding of Fact 7, but otherwise rejected as simply a statement of position. 8, 9. Rejected as simply a summary of testimony. Adopted in part in Finding of Fact 2, but rejected in part in Finding of Fact 3. Rejected as simply a statement of position Adopted in Finding of Fact 2. Rejected as irrelevant and unnecessary. 14, 15. Adopted in part and rejected in part in Finding of Fact 3. 16. Adopted in Finding of Fact 2, 3. 17-30. Rejected as simply the party's summation of testimony and evidence, as conclusions of law and otherwise not based on competent substantial evidence. Adopted in Finding of Fact 7 Adopted and rejected in Finding of Fact 8. 33, 34. Rejected as simply an excerpt of testimony. Rejected in part in Finding of Fact 8 Rejected as not a proposed finding of fact.
The Issue Did Respondent, Randy Scott, willfully violate section 106.07(2)(b)1., Florida Statutes (2018)1, by filing an incomplete campaign financial report 1 All citations to Florida Statutes are to the 2018 codification unless otherwise indicated. and failing to file an addendum completing the report within seven days after receiving notice that the report was incomplete?
Findings Of Fact Mr. Scott ran for election to Seat 4 of the governing board for the Lee Memorial Health System. The election for the seat was to be held during the November 6, 2018, general election, not during the August 28, 2018, primary election. The Lee County Supervisor of Elections (Supervisor) oversees and conducts elections. Candidates running for election in Lee County submit their initial paperwork, qualifying paperwork, and electronic financial reports to the Supervisor's filing officer. Cheryl Futch has been the Supervisor's filing officer for six years. Tammy Lipa assists Ms. Futch. On June 20, 2018, Mr. Scott filed to run for Seat 4. On June 28, 2018, Mr. Scott filed an Active Candidate Acknowledgement designating himself as the campaign treasurer. After that filing, Mr. Scott could accept campaign contributions and make campaign expenditures. He was also required by section 106.07(1) to file regular reports of contributions and expenditures. Mr. Scott opened a campaign bank account with SunTrust Bank with a $160.00 cash contribution. He reported the contribution on his Campaign Treasurer's Report Summary for the period June 23 to July 6, 2018, as a loan from himself. For the period August 4 through August 10, 2018, Mr. Scott filed a Waiver of Report with a notification of no activity during the reporting period. On August 10, 2018, he made a withdrawal from his campaign account at an ATM. The records do not show what time of day he made the withdrawal. This case does not involve a charge related to the August 10, 2018, report. Mr. Scott subsequently filed his campaign treasurer's report for August 11 to August 23, 2018. On that report, Mr. Scott reported an expenditure as a payment to himself of $140.00 on August 11, 2018. He identified the purpose of the expenditure as "website." The $140.00 expenditure appears in Block 7 of the form titled "Expenditures This Report" and on an attached itemized expenditure form. Block 8 of the summary form, titled "Other Distributions" does not contain any amounts. In Block 9, titled "Expenditure Type," the letters "RM" appear. (Comm. Ex. F) The evidence does not prove what those letters represent or who placed them there. Ms. Futch accepted the report conditionally. At the hearing, Commission counsel asked Ms. Futch, "Why was Mr. Scott's original 2018 P7 report incorrect or incomplete?" She replied, "He indicated a reimbursement without a distribution in his expenditures." (Tr. P. 118) The record does not reveal why Ms. Futch concluded that Mr. Scott had indicated a reimbursement. The record is clear that Ms. Futch disagreed with Mr. Scott's characterization of the expenditure and thought that it was incorrect. On August 27, 2018, at 8:04 a.m., Ms. Futch sent Mr. Scott an email stating: "Good morning. Your report has the following errors therefore you will be required to amend this report." An image of a campaign treasurer's report, in a different form than the report filed by Mr. Scott was beneath the text. The words "reimbursements must have a distribution recorded" are enclosed in a text box and an arrow points toward the word "Reimbursements" in another box appearing directly below the words "Exp. Type." The email does not state that Mr. Scott's report is incomplete. Mr. Scott called and spoke to Ms. Futch on August 27, 2018. He advised her that he did not agree with her and did not want to identify the $140.00 expenditure as a reimbursement. At 2:20 p.m., Ms. Futch sent Mr. Scott another email. It stated, "Your amended report has the following errors and therefore will be rejected." It does not state that the report is incomplete. An August 27, 2018, email from Ms. Futch stated, "Mr. Scott your report is still incorrect, please make the proper corrections and resubmit." It does not state that the report is incomplete. On August 28, 2018, Ms. Futch emailed Mr. Scott telling him she noticed he was having difficulty filing an amended report using the Supervisor's online filing system. She noted he had attempted to file five amended reports. She adds, "In addition, the amendment you are attempting is still incorrect. If you would like to make an appointment after the election, I would be glad to walk you through deleting the extra reports and show you how to correct your P7." The email does not state that Mr. Scott's report is incomplete. The disagreement between Mr. Scott and Ms. Futch about how to categorize the $140.00 continued. During their communications, Mr. Scott provided Ms. Futch differing theories about how the expenditure should be classified and why. Eventually the Supervisor issued a "Notification of Incomplete Report Filing," received by Mr. Scott on September 17, 2018. The notification states: The Lee County Supervisor of Elections office has determined that one or more campaign reports are incomplete for the following reasons. The P7 report needs to be amended: expenditure type should be Monetary (not reimbursement). Eventually, Ms. Futch executed and filed a Complaint against Mr. Scott with the Commission. More emails between Mr. Scott, Ms. Futch, and Ms. Lipa followed. On October 9, 2018, Ms. Futch sent an email to Mr. Scott stating: Good Afternoon Mr. Scott, Your P7 and previously filed amendments to that report are incorrect and the explanations why have been relayed to you through multiple emails. Our office can not force you to file your report properly we are just under the obligation to report it when you don't. The email does not state that Mr. Scott's report is incomplete. Mr. Scott's response on October 9, 2018, ended: Since you are asking me to fill out a state form contrary to the facts I can not and will not honor your request. Further your rejection is outside the ministerial duties of your job and find that action unbecoming a public official. [sic] At any time Tommy Doyle [the Supervisor] has the ability to pull back the complaint and based on these facts and the law that is exactly what he should order you to do. For now no further communication is needed on the P7 filing. Mr. Scott disagreed repeatedly, vigorously, and contentiously with Ms. Futch about how to characterize the $140.00. In Ms. Futch's view, Mr. Scott repeatedly characterized the expenditure incorrectly on his report and amended reports. The reports were not incomplete.
The Issue Whether Respondent, Arlene Schwartz, willfully violated Subsection 104.31(1)(a), Florida Statutes, which prohibits an officer or employee of the state, or of any county or municipality, from using his or her official authority or influence for the purpose of interfering with an election or a nomination of office, or coercing or influencing another person's vote or affecting the results thereof.
Findings Of Fact Based on the testimony and demeanor of the witnesses, documentary evidence, entire Transcript of Proceedings, and the facts admitted in the Joint Pre-hearing Stipulation, the following findings of fact are made: Respondent, Arlene Schwartz, as Mayor of the City of Margate, Florida, was a municipal officer on October 27, 2000, when she wrote a letter signed by her as Mayor, Margate, Florida, on official City of Margate stationery, endorsing Howard Forman for Clerk of Court, Broward County, Florida. Respondent has 10 years of experience as a candidate, elected official or member of municipal boards. Eugene Steinfeld was City Attorney, City of Margate, for 24 years; as such he gave advice to the Mayor and Commissioners of the City of Margate about their responsibilities under the Florida Ethics Code and Elections Laws. In 1994, in his capacity as City Attorney, Mr. Steinfeld authored a City of Margate Resolution which authorized the Mayor, Vice Mayor and City Commissioners "to use a facsimile of the official seal of the City of Margate in correspondence, promotion, or advertising when they are promoting the City of Margate. " On January 24, 2000, in his capacity as City Attorney, Mr. Steinfeld sent an inter-office memorandum to Respondent and others advising "there is no prohibition for endorsing a candidate for City Commission by another candidate for City Commission . . . ; it is only where a candidate expends money for another candidate or contributes things of value to another candidate that is prohibited, pursuant to FS. 104.071." In September 2000, Mr. Steinfeld had a conversation with Respondent wherein she asked if she would be permitted to endorse a candidate for a board position in a development district. In advising her that she could, he recalled saying, "You do not lose your freedom of speech when you become an elected official." On October 23, 2000, Respondent attended a meeting of the Margate Democratic Club where Howard Forman, a candidate for Clerk of Court, Broward County, spoke. As a State Senator, Mr. Forman had assisted the City of Margate even though Margate was not in his Senate District. Respondent orally endorsed Mr. Forman at the meeting and offered her assistance. On October 25, 2000, Respondent's office received a telephone call from Iris Siple who worked in Mr. Forman's campaign. Respondent returned the call on October 26, 2000, and was asked to write a letter endorsing Mr. Forman on city stationery. The letter was written on October 27, 2000, and later faxed to Mr. Forman's campaign headquarters. Mr. Forman's campaign reproduced the letter and mailed approximately 700 copies to potential voters. Respondent received no remuneration or benefit for writing the endorsement letter. Respondent acknowledged that she had no specific discussion with the City Attorney regarding the appropriateness of using city stationery in the endorsement letter. Nevertheless, she believed that writing the endorsement letter was something that she could do without violating the law. Based on the evidence presented, including the resolution allowing the use of the seal in correspondence promoting the city, the memorandum and advice given by the City Attorney, and her reliance on the request made by Mr. Forman's campaign office for a letter on city stationery, the undersigned finds that Respondent's belief that she had done nothing inappropriate in writing the endorsement letter to be credible.
Recommendation Based upon the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that the Florida Elections Commission enter a final order finding that Respondent, Arlene Schwartz, did not violate Subsection 104.31(1)(a), Florida Statutes, as alleged and dismissing the Order of Probable Cause. DONE AND ENTERED this 31st day of January, 2002, in Tallahassee, Leon County, Florida. JEFF B. CLARK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 31st day of January, 2002. COPIES FURNISHED: J. David Bogenschutz, Esquire Bogenschutz & Dutko 600 South Andrews Avenue Suite 500 Fort Lauderdale, Florida 33301-2802 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 Rushing, Clerk Florida Elections Commission 107 West Gaines Street Collins Building, Suite 224 Tallahassee, Florida 32399-1050
