The Issue Whether Petitioners violated provisions of Chapter 106, Florida Statutes, as alleged in the Order of Probable Cause filed August 23, 2002.
Findings Of Fact Chapters 97 through 106, Florida Statutes, comprise the Florida Election Code (Code). Pursuant to the Code, the Commission is empowered specifically to enforce the provisions of Chapters 104 and 106, Florida Statutes. Mary McCarty was elected to the City Commission of Delray Beach, Florida in 1987. She was elected to the Palm Beach County Commission in 1990. She has been returned to that office in each subsequent election and she is currently a member of the Palm Beach County Commission. In November of 2002, she was elected to her fourth term as Chairman of the Palm Beach County Republican Executive Committee. The Committee to Take Back Our Judiciary was an unincorporated entity. It was a de facto committee, which, for reasons addressed herein, did not ever become a "political committee" as defined in Section 106.011(1), Florida Statutes. Ms. McCarty has run for public office six times and was successful on each occasion. Prior to each election she received from the Florida Secretary of State a handbook addressing campaign financing. She is familiar with the statutes and rules with regard to financing an individual campaign. Sometime before the Thanksgiving Holiday in 2000, Ms. McCarty received a telephone call from Roger Stone of Washington, D.C. Ms. McCarty knew Mr. Stone, who at various times had been a campaign operative for Senator Arlen Specter, had been involved in opposing the sugar tax amendment in Florida, and had been a consultant to Donald Trump, during his short-lived presidential campaign. Ms. McCarty was aware that Mr. Stone and Craig Snyder were principals of IKON Public Affairs, a business entity with offices in Washington, D.C., and Miami Beach, Florida. Roger Stone informed Ms. McCarty that he was forming a committee to raise funds for the purpose of taking action against the Florida Supreme Court. Mr. Stone stated that he had formed The Committee and that he wished for her to be the chairperson. She did not initially commit to undertake this responsibility. A few days after the conversation with Mr. Stone, Ms. McCarty received a facsimile draft of a fundraising letter that The Committee proposed to post. The facsimile was sent by Roger Stone from Washington. She made some suggested changes and returned it to the address in Washington from whence it came. Subsequently, she had a telephone conversation with Lora Lynn Jones of Unique Graphics and Design in Alexandria, Virginia. Ms. Jones was in the business of making mass mailings. Ms. McCarty told Ms. Jones that her name could be used on the fundraising letter although Ms. McCarty did not sign the fundraising letter. Nevertheless, the document was mailed to a large number of people and it bore the printed name, "Mary McCarty, Palm Beach County Commissioner." The first time Ms. McCarty saw The Committee's finished product it was in the form of a "Telepost, high priority communication." She first saw the "Telepost" when it arrived in her mailbox in early December 2000. The wording of the letter was different from the draft Ms. McCarty had seen earlier. Unlike the draft, it targeted specific justices on the Florida Supreme Court. It cannot be determined from the evidence the date the December "Telepost" was posted, but it was posted before Ms. McCarty determined that she had become Chairperson of The Committee. The "Telepost," dated December 2000, solicited funds so that The Committee could, ". . . send a clear message to the Florida Supreme Court that we will not tolerate their efforts to highjack the Presidential election for Al Gore." Later in December 2000, Mr. Stone called Ms. McCarthy and told her that she should be the chairman of The Committee. She agreed. Ms. McCarty signed a "Statement of Organization of Political Committee," which was dated December 19, 2000. This is a form provided by the Division of Elections, which, if properly completed and filed, officially establishes a political committee. She also signed a form entitled "Appointment of Campaign Treasurer and Designation of Campaign Depository for Political Committee." Mr. Stone, or his operatives, provided these forms to Ms. McCarty. She signed them and mailed them to Mr. Stone's address in Washington, D.C., which was the headquarters of the IKON Public Affairs Group. The "Statement of Organization of Political Committee," dated December 19, 2000, was received by the Division of Elections on December 26, 2000. It listed Amber McWhorter as Treasurer. Inez Williams, who works in the document section of the Division of Elections, processed the form. When Ms. Williams received it, she recognized that the form was incomplete because on the face of it the reader could not determine if the committee was an "issue" committee, or a "candidate" committee. Ms. Williams noted that the mailing address on the form dated December 19, 2000, was "c/o VisionMedia," 1680 Michigan Avenue, Suite 900, Miami Beach, Florida. Ms. Williams found a telephone number for that business and dialed it, on December 27, 2000. No one answered so she left a message on VisionMedia's answering machine. In addition to the telephone call, Ms. Williams prepared a letter with the address of, "Mary McCarty, Chairperson, The Committee to Take Back Our Judiciary, 1348 Washington Avenue, Suite 177, Miami Beach, Florida." This letter was dated December 27, 2000, and was signed by Connie A. Evans, Chief, Bureau of Election Records. This is the address found on the "Appointment of Campaign Treasurer and Designation of Campaign Depository for Political Committee," which had also been received by the Division of Elections on December 26, 2000. The letter signed by Ms. Evans on December 27, 2001, informed Ms. McCarty that items 3 and 7 needed to be "rephrased." It further informed Ms. McCarty, that upon receipt of the requested information the committee would be included on the "active" list. The message recorded on The Committee answering machine on December 27, 2001, generated a response from a person who identified himself as Mr. Snyder, on January 2, 2002. Mr. Snyder engaged in a telephone conversation with Ms. Williams. Ms. Williams explained to Mr. Snyder that items 3, 5, 7, and 8, would have to be completed properly as a condition of The Committee's being recognized. A letter dated January 4, 2001, bearing the letterhead of "The Committee to Take Back Our Judiciary," and signed by Amber Allman McWhorter, was faxed to the Division of Elections on January 4, 2001, and received that date. This letter referenced the telephone call between Ms. Williams and Craig Snyder, who was further identified as The Committee's attorney. The letter stated that a corrected Statement of Organization of Political Committee, and a designation of treasurer, would be forwarded to the Division of Elections within the next 72 hours. On January 8, 2001, a filing was received by the Division of Elections that was deemed by the Division to be complete. Subsequently, in a letter dated January 10, 2001, and signed by Connie Evans, informed Ms. McCarty and The Committee that the Statement of Organization and the Appointment of Campaign Treasurer and Designation of Campaign Depository for The Committee complied with the Division of Elections' requirements. The Committee was provided with Identification No. 34261. Posted with the letter was a copy of the "2000 Handbook for Committees," which is published by the Division of Elections. The letter and the handbook were sent to The Committee operation in Miami, not Ms. McCarty, and no one in the Miami Beach operation ever forwarded it to her. Connie Evans, Bureau Chief of Election Records, the entity that supervises the filing of the forms mentioned above, believes that due to a court ruling in Florida Right to Life v. Mortham, Case No. 98-770-Civ-Orl-19A, the language in Section 106.011, Florida Statutes, which defines a "political committee," has been found to be unconstitutional. She believes that a political committee is not required to register with the Division of Elections but that if a committee does register, it must abide by the statutes regulating political committees. Ms. Evans has informed numerous entities of this interpretation of the law in letters. The efficacy of that case, and Ms. Evans' interpretation of it, will be discussed further in the Conclusions of Law, below. Ms. McCarty signed a "Campaign Treasurer's Report Summary"(CTR-Q1) which was filed with the Division of Elections on April 10, 2001. This addressed the period January 1, 2001 until March 31, 2001. Under the certification section of the CTR-Q1 are the words, "It is a first degree misdemeanor for any person to falsify a public record (ss. 839.13, F.S.)." Immediately above her signature are the words, "I certify that I have examined this report and it is true, correct, and complete." The box found immediately above and to the right of her signature, was checked to signify that Ms. McCarty was the chairperson of The Committee. According to Ms. Evans, The Division of Elections regulates several kinds of committees. There are "issues" committees, "candidate" committees," "party executive" committees, and "committees of continuing existence." Depending on the nature of the committee, different rules apply. The Committee was a "candidate" committee so the contribution regulations of a political candidate applied to the committee. That meant that the maximum contribution per person was $500. The CTR-Q1 indicated in the "Itemized Contributions Section" that seven people contributed $1,000 and one person contributed $2,000. Walter Hunter, Neda Korich, Arthur Allen, William Shutze, Caroline Ireland, Henry Allen, and Honore Wansler, contributed $1,000, each. Robert Morgan contributed $2,000. The amounts in excess of $500 were eventually returned to the $1,000 contributors, except that in the case of Henry Allen, the refund was made to Allen Investment corporation. The sum of $1,500 was returned to Robert Morgan, the $2,000 contributor, but the CTR-Q1 listed only a $500 repayment. Therefore, the CTR-Q1 in its expenditures section was incorrect with regard to Mr. Morgan. The CTR-Q1 also listed in the "Itemized Contributions Section" the receipt, on January 2, 2001, of $150,000 for "LOA/INK extension of credit for direct mail services." These words may be interpreted to mean that a loan in the form of an "in kind" service had been provided. This was reported under the name of Creative Marketing, 2760 Eisenhower Avenue, Suite 250, Alexandria, Virginia. The Committee had a bank account at CityBank of Miami, Florida. The sole authorized signatory on the account was Diane Thorne. The Account No. was 3200015694. There was no entry in the bank account of the receipt of $150,000. This indicates that the item was not processed through the bank and it would not have been processed through the bank if it were really an "in kind" contribution. Because the beginning balance was zero on February 8, 2001, it is concluded that the inception date of Account No. 3200015694 was February 8, 2001. Lora Lynn Jones, is the principal of Unique Graphics and Design, which is located in Suite 253, at an address in Alexandria, Virginia, which is not further identified in the evidence of record. Ms. Jones prepared and posted the fundraising letter of December 2000, at the direction of Mr. Stone. Ms. Jones talked on the telephone with Ms. McCarty prior to mailing the fundraising letter and determined that the language in the letter was agreeable to Ms. McCarty. At the direction of Mr. Stone, Ms. Jones requested payment and received payment for her work, but from whom she cannot remember, except that she is sure that Creative Marketing did not pay it. The money for this production was paid in advance by wire transfer. There is no evidence in the record that this was paid from the account of The Committee. In fact, because the payment was made sometime in early December 2000, it could not have been paid from the account because it had not been opened. Ms. Jones is aware of an entity by the name of Creative Marketing Company and she believes it may be located in Northern Virginia, but she is not involved with it. It is found by clear and convincing evidence that the fundraising letter was not paid for by Creative Marketing, 2760 Eisenhower Avenue, Suite 250, Alexandria, Virginia. The bank records of The Committee reflect a $50,000 expenditure made to Unique Graphics and Design, paid with a check dated May 9, 2001. This represents a payment for something other than the fundraising letter dated December 2000. The $50,000 item was reported as an expenditure on the CTR-Q1 that was reported to have been made on March 12, 2001. It was reported as having been made to Creative Marketing as payee. The only check in the amount of $50,000, reflected in The Committee checking account for the period February 8, 2001, to June 30, 2001, was payable to Unique Graphics and Design and was dated May 9, 2001. Therefore, it is found that the CTR-Q1 is incorrect when it was reported as having been made on March 12, 2001, to Creative Marketing. Ms. Jones believes there is a company by the name of Creative Marketing Company, which she believes may be located in Northern Virginia, but she is not involved with it. Contributions remitted in response to the fundraising letter were forwarded to one of Mr. Stone's two addresses. Because the address of 1348 Washington Avenue, Suite 177, in Miami Beach, Florida, is the address listed on the fundraising letter, it is likely that contributions in response to the fundraising letter went to Mr. Stone's Miami Beach operation. In any event, it is found as a fact that Ms. McCarty did not personally receive or have any contact with any of the contributions remitted to The Committee. The people handling the receipt of funds and the deposits were Roger Stone and people paid by his organization, including Diane Thorne, the secretary; Amber McWhorter, the treasurer; and Craig Snyder. Just as Ms. McCarty was not involved in the receipt of income to The Committee, she was also not involved in the disbursement of funds. The CTR-Q1 was completed by The Committee's staff in either Miami Beach or Washington, D.C., but Ms. McCarty had no input into its preparation. When Ms. McCarty signed the CTR-Q1 she was without knowledge as to whether the report was truthful, correct, or complete. It is further found that she made no effort to ascertain whether the report was truthful, correct, or complete. She believed it to be true and correct because she trusted Mr. Stone's operatives to accurately prepare the report. Ms. McCarty, excepting the current litigation, has never been the subject of a Commission action. Ms. McCarty has an income of approximately $80,000. She owns a residence jointly with her husband which is valued at approximately $300,000 and which is subject to a mortgage of approximately $200,000. She owns a vacation home in Maine jointly with her husband that is valued at approximately $25,000. She and her husband own three automobiles. She owns stocks, annuities, mutual funds or certificates of deposit of an indeterminate value.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED: That a final order be entered dismissing the Orders of Probable Cause entered in the case of both Mary McCarty and The Committee to Take Back Our Judiciary. DONE AND ENTERED this 21st day of April, 2003, in Tallahassee, Leon County, Florida. HARRY L. HOOPER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 21st day of April, 2003. COPIES FURNISHED: Kendall Coffey, Esquire Coffey & Wright, LLP 2665 South Bayshore Drive Grand Bay Plaza, Penthouse 2B Miami, Florida 33133 J. Reeve Bright, Esquire Bright & Chimera 135 Southeast 5th Avenue, Suite 2 Delray Beach, Florida 33483-5256 Mark Herron, Esquire Messer, Caparello & Self, P.A. Post Office Box 1876 Tallahassee, Florida 32302-1876 Eric M. Lipman, Esquire Florida Elections Commission 107 West Gaines Street Collins Building, Suite 224 Tallahassee, Florida 32399-1050 Barbara M. Linthicum, Executive Director Florida Elections Commission 107 West Gaines Street Collins Building, Suite 224 Tallahassee, Florida 32399-1050 Patsy Ruching, Clerk Florida Elections Commission 107 West Gaines Street Collins Building, Suite 224 Tallahassee, Florida 32399-1050
The Issue Whether Freda Sherman Stevens (Respondent), a candidate in the 2008 primary for a seat in the Florida House of Representatives, willfully violated section 106.07(5), Florida Statutes (2008), by certifying that six of her campaign reports were true, correct, and complete when they were not. Whether Respondent willfully violated section 106.19(1)(c), Florida by falsely reporting, or deliberately failing to report information required to be reported by chapter 106, Florida Statutes (2008).1/
Findings Of Fact Respondent was a candidate for the House of Representatives, District 100, in the August 26, 2008, primary election. As a candidate for the Florida Legislature, the Division of Elections of the Florida Department of State (the Division), was Respondent's filing office, and Respondent was required to file all her reports electronically. On October 30, 2007, Respondent filed with the Division her Appointment of Campaign Treasurer and Designation of Campaign Depository form listing herself as treasurer for her 2008 campaign. On November 1, 2007, Ms. Bronson sent Respondent a letter acknowledging that Respondent had been placed on the 2008 active candidate list. The letter advised Respondent that all candidates filing reports with the Division were required to use the electronic filing system (EFS) and provided Respondent with a personal identification number (PIN) and initial password to grant access to the EFS. The user was expected to change the initial password after logging on for the first time. Ms. Bronson's letter included the following information: You, your campaign treasurer, and deputy treasurers are responsible for protecting these passwords from disclosure and are responsible for all filings using these credentials, unless the Division is notified that your credentials have been compromised. * * * Each campaign treasurer's report filed by means of the EFS is considered to be under oath by the candidate and campaign treasurer and such persons are subject to the provisions of Section 106.075(5), Florida Statutes. * * * An online guide is available to you on the EFS to assist with navigation, data entry, and submission of reports. The Division of Elections will also provide assistance to all users by contacting the EFS Help Desk at (850) 245-6240. All of the Division's publications and reporting forms are available on the Division of Election's web site at http://election.dos.state.fl.us. It is your responsibility to read, understand, and follow the requirements of Florida's election laws. Therefore, please print a copy of the following documents: Chapters 104 and 106, Florida Statutes; Candidate and Campaign Treasurer Handbook (September 2007 edition); 2007-2008 Calendar of Reporting Dates; and Rule 1S-2.017, Florida Administrative Code. When a campaign report is submitted electronically through the EFS, both the candidate and treasurer's PINs must be entered into the website. Though it is possible for either the candidate or the treasurer to give their PINs to another individual to enter the report on their behalf, the candidate remains responsible for the PINs and the filed reports. Respondent did little to educate herself as to her responsibilities as a candidate and as the treasurer for her campaign. She could not even remember whether she read Ms. Bronson's letter, and she did not remember whether she had read the handbook referred to by Ms. Bronson. Respondent did not attend any candidate trainings offered by the Broward County Supervisor of Elections Office. On November 21, 2007, Respondent resigned as treasurer and appointed her mother, Clementine Sherman, as her new treasurer. On December 5, 2007, Ms. Bronson sent a letter to Ms. Sherman, with a copy to Respondent, acknowledging Ms. Sherman's appointment as treasurer and providing the same information contained in Ms. Bronson's letter to Respondent dated November 1, 2007 (and discussed above). On January 29, 2008, the Division accepted Respondent's appointment of herself as her deputy treasurer. Respondent did not have a system for keeping track of campaign contributions or expenditures. Pursuant to section 106.07, Florida Statutes (2008), Respondent was required to file periodic reports listing "all contributions received, and all expenditures made, by or on behalf of her candidacy." At all times relevant to this proceeding, Respondent has been the owner of Prodigal S & D Corporation, which does business as Green Apple Association of Christian Schools (Green Apple). Respondent was authorized to issue and sign checks on the bank account owned by Green Apple. In August 2008, shortly before the primary election, Respondent placed an order with WPLG-TV for airtime to disseminate political advertisement for her campaign. The script used in the advertisement aired on WPLG included the following: "Please vote Freda Stevens for State Representative District 100 on August 26. Thank you."2/ On August 6, 2008, Respondent signed two checks made payable to WPLG. Both checks were drawn on the same bank account owned by Green Apple. Check 1050 was in the amount of $13,812.50. Check 1051 was in the amount of $680.00. Both checks were made payable to WPLG in payment for political advertising that Respondent had purchased from WPLG. When Respondent signed those checks to WPLG, she knew, or should have known, that there were insufficient funds in both the Green Apple account and her campaign account to cover the checks. On August 15, 2008, Respondent signed check number 1053 payable to WPLG that was drawn on the same bank account owned by Green Apple as checks 1050 and 1051. Check number 1053 was in the amount of $7,161.25 and was used to pay for political advertising that Respondent bought from WPLG prior to the primary election. When Respondent signed check numbered 1053 to WPLG, she knew, or should have known, that there were insufficient funds in both the Green Apple account and her campaign account to cover the check. Check numbered 1050 and 1051 were returned to WPLG for non-sufficient funds. WPLG did not deposit check numbered 1053. Respondent filed an original and five amended 2008 F3 Reports. Respondent certified that each report was true, correct, and complete. All reports were filed electronically utilizing the PIN number given to Respondent by Ms. Bronson. On August 22, 2008, Respondent filed her "Original Report." That report listed no campaign contribution from Green Apple, and it failed to list campaign expenditures to WPLG or other media. Because of those omissions, the report was not accurate, and it was not complete. On August 23, 2008, Respondent filed a first "Amended Report." That report listed five in-kind contributions from Respondent with the descriptor "media" under each contribution. The amounts of the in-kind contributions were $13,812.50; $680.00; $3,185.85; $7,161.25; and $3,187.00. That report was inaccurate because the in-kind contributor for three of the in- kind contributions ($13,812.50; $680.00; and $7,161.25) was Green Apple, not the Respondent.3/ Respondent lost the primary election. After the election, on August 30, 2008, Respondent filed a second "Amended Report." The five in-kind contributions from Respondent with the descriptor "media" that had been on the first "Amended Report" were deleted from the report and were replaced with the following four in-kind contributions with the reported date of the contribution in parentheses: $13,812.50 (August 6); $3,187.50 (August 20); $3,128.85 (August 18); and $680.00 (August 6). That report was inaccurate because the in-kind contributor was Green Apple, not the Respondent. That report also failed to report the check in the amount of $7,161.25 that Green Apple had issued to WPLG on August 15. On November 24, 2008, Respondent filed a third "Amended Report", a fourth "Amended Report", and a fifth "Amended Report." The third "Amended Report" deleted the in- kind contribution from Respondent dated August 6, in the amount of $13,812.50, and with the descriptor "media." The fourth "Amended Report" and the fifth "Amended Report" reflected no contributions, only expenditures, none of which was for media. These "Amended Reports" were incomplete and inaccurate. WPLG attempted to collect the monies owed by Respondent's campaign. Clementine Sherman remitted a payment (by cashier's check) in the amount of $6,000.00 on August 27, 2008.4/ Respondent remitted three money orders that were deposited September 28, October 15, and December 22, 2009, respectively. These money orders were in the amounts of $200.00, $200.00, and $680.00. These payments were not reflected on any report filed by Respondent.
The Issue The issue in this case is whether the Petitioner's request to become a candidate for election to the office of County Judge while retaining his state employment should be granted or denied. The final hearing in this case was consolidated, for purposes of hearing only, with the final hearing in two related cases; namely, Case Nos. 87-5313R and 87-5437, At the final hearing all parties presented testimony and the Petitioner also offered six exhibits, all of which were received without objection. At the conclusion of the hearing, all parties agreed to a ten-day deadline for the filing of proposed orders. All parties have filed proposed orders containing proposed findings of fact and conclusions of law. The parties' proposed orders have been carefully considered during the preparation of this recommended order and specific rulings on all proposed findings are contained in the Appendix which is attached to and incorporated into this recommended order.
Findings Of Fact The Petitioner, Mr. Parsons, is employed by the Department of Health and Rehabilitative Services ("DHRS") as an "Assistant Mental Health Hospital Administrator." He is a career service employee of the State of Florida. By memorandum dated October 23, 1987, Mr. Parsons submitted a "Notice Of Intent To Run For Local Political Office." The memorandum was directed to Mr. Parsons' supervisor, Mr. Britton D. Dennis. The memorandum sought approval from DHRS and from the Department of Administration ("DOA"), described the nature of the political office Petitioner is seeking, and described the working hours of the position and the salary. In the memorandum, Mr. Parsons stated that he would not campaign on job time, and would not make use of any of the state's facilities in regard to campaign activities. He also stated his intention to request a leave of absence and that he would resign from his current position with DHRS if elected. The District Administrator of DHRS denied Mr. Parson's request for approval to become a candidate by letter dated October 30, 1987. The Administrator stated that the request was being denied ". . . because your candidacy would be in violation of Chapter 22A-13.002, Personnel Rules and Regulations, Florida Administrative Code, and Section 110.233(4), Florida Statutes." On October 30, 1987, Mr. Parsons' supervisor, Mr. Britton D. Dennis, indicated that he would deny the request for leave of absence because he felt that the position held by Mr. Parsons could not be vacant for an extended period of time. Mr. Parsons responded that he nonetheless desired to be a candidate for the local political office, and that he would not campaign on the job, nor use state facilities for campaign purposes. By letter dated November 5, 1987, the Secretary of DOA stated that she was unable to approve Mr. Parsons request because it had been denied by DHRS, and because, if elected, the duties would be performed during assigned working hours. The Secretary of DOA cited DOA Rule 22A-13.002(4)(a) and (b), Florida Administrative Code. This proceeding ensued. Mr. Parsons filed a petition challenging the denial of his request by DHRS, a petition challenging the denial of his request by DOA, and a petition challenging the validity of the DOA rules that had been cited in support of the denials. Mr. Parsons serves as the Administrator of Forensic Services at Florida State Hospital in Chattahoochee, Florida. Mr. Parsons has administrative responsibility for the day-to-day operations of the Forensic Unit. The Forensic Unit houses psychiatric patients who have been placed in the hospital in connection with criminal charges. These patients have been found incompetent to stand trial on criminal charges, have been committed as "mentally disordered sex offenders," or have been hospitalized after having been found not guilty of criminal charges by reason of insanity. Mr. Parsons answers directly to the Administrator of Florida State Hospital. Mr. Parsons supervises approximately 700 employees. Mr. Parsons has performed his job duties in an exemplary manner. He has always received the highest evaluations and he has been an innovative leader of the Forensic Unit. Mr. Parsons is seeking to stand for election to the position of County Judge in Gadsden County, Florida. The position of County Judge is a full-time position. If elected, Mr. Parsons could not continue in his employment with DHRS. He has clearly stated that if elected he would resign from his employment with DHRS. Mr. Parsons will conduct his campaign activities in such a manner as not to interfere with his employment with DHRS. If DHRS prefers, he will take a leave of absence without pay from his employment during the course of the campaign. If his supervisor does not wish for him to take a leave of absence, Mr. Parsons will conduct his campaign without a leave of absence. In either event, Mr. Parsons will conduct no campaign activities while on the job and he will utilize no state facilities in his campaign. It is possible that Mr. Parsons' job with DHRS would make it difficult for him to campaign at certain times. In the event of such conflicts, Mr. Parsons will give precedence to his job responsibilities and will forego campaign activities to the extent they conflict with the fulfillment of his job responsibilities. There are limited times during which Mr. Parsons serves as the Administrative Officer of the Day for Florida State Hospital, as well as limited times when he serves as the Administrative Officer of the Day for the Forensic Unit. During these times he is required to be in contact with the hospital by "beeper" on a twenty-four hour basis. The beeper service used by the hospital for Administrative Officers of the Day allows the officer to be contacted at any location in Gadsden or Leon County. Mr. Parsons' campaign activities would be conducted in Gadsden County only and he would be available to respond as Administrative Officer of the Day to the same extent that he and other employees who share this duty are presently available. Mr. Parsons' campaign activities would not conflict with his job responsibilities with DHRS. Indicative of his ability to conduct outside activities without interfering with his job responsibilities at DHRS is the fact that Mr. Parsons has conducted a part-time private practice of law during the past three years without any conflict with his DHRS job responsibilities. The Department of Administration has adopted rules regarding requests to run for or hold local public office. Those rules provide, in pertinent part, as follows: 22A-13.002 Statements of Policy Section 110.233(4)(a) further provides that no employee shall hold or be a candidate for public or political office while in the employment of the state unless: The employee is seeking or holding a local public office and; Such candidacy and office is authorized by the employee's agency head and approved by the Department of Administration as involving no interest which conflicts or activity which interferes with his/her state employment. Candidacy for or holding a local public office shall be presumed to involve an interest which conflicts with an employee's state employment when the campaign or the office, if elected, is likely to give rise to a situation in which regard for a private or local interest tends to lead to a disregard of the employee's duty as a state employee. Candidacy for or holding local public office shall be presumed to involve activities which interfere with an employee's state employment in the following instances: The office is a full-time office. Campaign or, if elected, office activities are performed during the employee's assigned working hours with the State. Campaign or, if elected, office activities will involve the use of State space, personnel, time, equipment, or supplies. In its application of the foregoing rule provisions, DOA reads those provisions in conjunction with Rule 22A-13.0031, Florida Administrative Code, regarding procedures. DOA has interpreted and applied the presumptions in the foregoing rule provisions as rebuttable presumptions, rather than as conclusive presumptions. On at least one prior occasion since the challenged rule provisions went into effect, the DOA and the DHRS granted approval for an employee of DHRS to become a candidate for the office of County Judge without requiring resignation from state employment.
Recommendation For all of the foregoing reasons, it is recommended that the Department of Health and Rehabilitative Services enter a final order denying the Petitioner's request to become a candidate for election to the office of County Judge DONE AND ENTERED this 19th day of February, 1988, at Tallahassee, Florida. Michael M. Parrish, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of February, 1988.
The Issue Whether Petitioner violated the Florida Election Code as alleged in the Order of Probable Cause entered November 25, 2002.
Findings Of Fact Chapters 97 through 106 comprise the Florida Election Code (Code). Pursuant to the Code, the Commission is specifically empowered to enforce the provisions of Chapters 104 and 106, Florida Statutes. Mr. Smith is a principal in Smith Brothers Paint and Body Shop and runs the daily operations of the business. In addition to painting and repairing motor vehicles, he has a wrecker service. He ran for county commission in Escambia County in 1996 but was not elected. He ran again in 2000 and was successful. Allegations of impropriety surrounding the 2000 race caused the Commission to conduct an investigation into Mr. Smith's campaign practices. When Mr. Smith ran for the position of county commissioner in 1996, his campaign treasurer was Lance Simmons. Mr. Simmons was a certified public accountant and Mr. Smith's friend. Mr. Simmons provided this service at no charge. The campaign financing reports prepared by Mr. Simmons were correct and professional. Lynn Kowalchyk, Assistant Supervisor of Elections in Escambia County, who has worked for the Supervisor of Elections in Escambia County for 25 years, opined that the submissions for that campaign were some of the best the Supervisor of Elections has received. Because Mr. Smith lost the election, he felt too embarrassed to ask Mr. Simmons to serve as his campaign treasurer for the 2000 race. He decided that he would serve as his own treasurer. Mr. Smith ran for county commissioner in District 5, which is the largest district in Escambia County, Florida. The district comprised the northern part of the county, which is more sparsely settled than the other districts in the county. In fact, District 5 comprises about 70 percent of the landmass of Escambia County. A great distance must be traveled to get from Mr. Smith's business to most places in the district and from place to place in the district. Mr. Smith decided that it was more important to engage in person-to-person campaigning in his large district than to spend time doing the detailed work of learning the complexities of the election laws, complying with the laws, and submitting correct reports. Mr. Smith received the 2000 edition of the "Candidate Handbook on Campaign Financing," which was published by the Florida Department of State. He had previously received the 1996 handbook. He signed statements in 1995 and 1999 certifying that he had read and that he understood the material presented in the handbooks. His testimony that he did not read either of them is accepted as fact. Mr. Smith had worked on one of his own campaigns and on other campaigns and felt as though he already knew all he needed to know about election laws. He concluded that if he needed additional information, he could get it from staff in the Supervisor of Elections Office. Mr. Smith first filed as a candidate for the 2000 election on October 20, 1999. Subsequent to filing he received at least ten notices from the Supervisor of Elections Office that members of the office staff were available to advise him with regard to the rules governing elections. Mr. Smith's routine during the campaign was to work at his place of business in the morning and then to go to his district and conduct his campaign. He gave documentation recording contributions and expenditures to his elderly mother, a widow of 65 years. His mother kept notes on a legal pad and organized the documents so that they could be reported. Mr. Smith's mother had cancer, heart problems, and arthritis and this may have affected her accuracy in preparing reports. Mr. Smith was unaware of the serious nature of her illnesses during the time she was working on the campaign. Mr. Smith's mother died December 11, 2002. Mr. Smith's brother also helped with the campaign records. He was a schoolteacher, and each evening during the campaign he would help Mr. Smith. His brother died one week after Mr. Smith's electoral victory. Counts 1-4. Allegations involving Section 106.021(3) prohibiting expenditures from other than the campaign treasury (Counts 1-4). (Count 1). On October 10, 2000, Mr. Smith purchased stamps from the U. S. Post Office. A check in the amount of $495 was presented in payment. The check was drawn on the checking account of a company titled Environmentally Friendly Chemicals (EFC), of which Mr. Smith is a part owner. This occurred because Mr. Smith inadvertently picked up the EFC checkbook instead of the campaign checkbook. Mr. Smith's inattention was the cause of the error. The campaign subsequently reimbursed EFC. (Count 2). Campaign check 2088 was written to Frankie Peters in the amount of $50 to reimburse Ms. Peters who had paid for a sign at the Tate High School ballpark. Mr. Smith permitted this because the sign could not have been timely purchased if it had been paid with a check from the campaign treasury. (Count 3). Someone named Nacie Smith paid for postage in the amount of $150 on behalf of the campaign during October 2000. Campaign check number 2115 was used to reimburse Ms. Smith, and Mr. Smith signed this check. (Count 4). Mr. Smith had printing done for the campaign by a firm named Pengraphix pursuant to an order placed October 31, 2000. This order was placed immediately prior to the election. Part of the order was paid from the campaign account in the amount of $852.97. The balance was in dispute but was eventually compromised in the amount of $1,884.92. This amount was paid not from the campaign account, but rather, directly to Pengraphix by a friend named Donald "Mike" Murphy. The payment by Mr. Murphy was effected after the campaign had concluded. Mr. Murphy was a person to whom Mr. Smith had provided a loan several years prior to 2000. These four transactions are expenditures that were not paid from the campaign treasury. However, as will be discussed in the Conclusions of Law in more detail below, the accidental use of the EFC checkbook in Count 1, did not demonstrate willfulness. Count 5. Allegation involving Section 106.021(3) prohibiting a candidate from receiving contributions except through the campaign treasurer. This allegation is supported by the evidence recited above regarding Mr. Murphy, if one concludes that the money provided to Pengraphix represented a contribution as that term is defined in Chapter 106, Florida Statutes. Whether or not the facts support a finding that the cited statute prohibited this transaction is discussed in the Conclusions of Law, below. Counts 6-29. Allegations involving Section 106.05 requiring funds received to be deposited within five days of receipt. Mr. Smith reported 20 contributions on his Campaign Treasurer's Report (CTR), which covered the period October 20, 1999 through December 31, 1999. One of the contributions described by Mr. Smith as being a $500 check, was later reported, in an amended CTR, to be five separate $100 cash contributions. The campaign bank account was not opened until January 7, 2000, and the last contribution reported on the CTR was November 29, 1999. Therefore, 24 contributions were received but not deposited in the campaign account until more than five days subsequent to receipt. Mr. Smith was unaware of the statutory requirement that contributions must be deposited in the campaign treasury within five days of receipt. However, his willful ignorance of the requirement translates into willful violations. Counts 30-79. Allegations involving Section 106.07(5) prohibiting a candidate from certifying to the correctness of a campaign treasurer's report that is incorrect, false, or incomplete. Mr. Smith filed original CTRs for the following periods: (Count 30) October 20, 2000 to December 31, 1999. (Count 31) January 1, 2000 to March 31, 2000. (Count 32) April 1, 2000 to June 30, 2000. d. (Count 33) July 1, 2000 to July 31, 2000. (Count 34) July 29, 2000 to August 11, 2000. (Count 35) August 12, 2000 to August 31, 2000. (Count 36) September 1, 2000 to September 8, 2000. (Count 37) September 9, 2000 to September 28, 2000. (Count 38) September 29, 2000 to October 13, 2000. (Count 39) October 14, 2000 to November 2, 2000. (Count 40) November 2, 2000 to December 31, 2000. He filed amended CTR's on January 12, 2000 (Count 41), April 19, 2000 (Count 42), and August 16, 2000 (Count 43). When a complaint that Mr. Smith had violated the laws governing campaign financing was filed against him in September 2001, he became motivated to try to correct CTR's that he had filed. He filed amended CTRs on September 24, 2001, October 18, 2001, April 2, 2002, April 24, 2002, and June 5, 2002 (Counts 44-79). He filed a total of 11 CTRs and 39 amendments. The parties stipulated, and it is found as a fact, that all of the original CTRs he filed, and all of the amendments he filed, were incomplete or incorrect. Mr. Smith worked diligently with Ms. Kowalchyk to correct the reports, once he discovered in September 2001, that he had been accused of wrongdoing. Ms. Kowalchyk worked on Mr. Smith's CTRs on her own time. Even Bonnie Jones, the Supervisor of Elections, attempted to correct his CTRs, but all were frustrated in the attempt. His reports were in complete disarray. Ms. Jones suggested in a letter dated October 8, 2001, that Mr. Smith refer this matter to his accountant, believing that an accountant might bring order to the chaotic records. He did not act on this advice. As noted above, Mr. Smith relied on his mother and his brother, and perhaps other family members to prepare accurate reports. Nevertheless, he was the campaign treasurer and he personally signed each CTR beneath bold face type which recited, "It is a first degree misdemeanor for any person to falsify a public record (ss.839.13 F.S.)" and despite the words over the signature line, where he placed his signature, which stated, "I certify that I have examined this report and it is true, correct and complete." It is specifically found that Mr. Smith's submission of incorrect CTRs was not motivated by an intention to hide any wrongdoing. His dereliction was due, rather, to a cavalier attitude with regard to complying with the technical aspects of the laws addressing campaign financing. This attitude continued until a complaint was filed. For reasons more fully explained in the Conclusions of Law, it is found as a fact that Mr. Smith is guilty of Counts 30-43, and not guilty of Counts 44-79. Counts 80-81. Allegations involving Section 106.11(3) prohibiting a candidate from incurring an expense for the purchase of goods or services without sufficient funds on deposit in the primary campaign depository. Although the Order of Probable Cause indicates that Mr. Smith was charged under Section 106.11(4), he should have been charged under Section 106.11(3) the Code in effect during the alleged misconduct. The wording of Section 106.11(4), Florida Statutes (2002), is identical to that found in Section 106.11(3). Because all parties understood the nature of the charge, the citation to a later version of the Florida Statutes does not mean that Mr. Smith may not be found to be in violation of it. Reference to the Statement of Findings reveals that the two counts alleged refer to services provided by Pengraphix, which is a printing house. The CTR for the period November 2, 2000 to December 31, 2000, reported two expenditures made to Pengraphix. One was for $864.49 and the other was for $1844.19, and both were reported on the CTR to have been made December 1, 2000. Subsequently, an amended CTR was filed September 24, 2001, which reported only an expenditure of $864.49 to Pengraphix. On June 5, 2002, in the fifth amendment to the termination CTR, Mr. Smith reported an expenditure on December 1, 2000, of an additional $1844.19, to Pengraphix. It is concluded from these reports that two obligations of $864.49 and $1844.19, for a total of $2708.68, were incurred in favor of Pengraphix. Because the bank records of the campaign account subsequent to December 1, 2000, reflect no expenditure in either individual amount, or in the aggregate amount, it may be concluded that the debt was not paid from the campaign account at all. The bank statement for the campaign treasury for the months of December 2000 and January 2001 never had a balance greater than $613.97 in it, so there was no money available from that source to pay the two expenditures. Mr. Smith addressed the foregoing by stating that there was a disputed bill from Pengraphix in the amount of about $2,600, and that he spent almost three months attempting to reach a settlement. The amount was compromised at $1,850. Mr. Smith further stated that when the printing was ordered the cost was not revealed. It must be concluded that until the amount was liquidated, Mr. Smith could not pay the bill. However, Mr. Smith must have known by December 1, 2000, that the liquidated amounts for the two jobs were $864.49 and $1844.19. At the time the jobs were ordered, which cannot be determined from the evidence, funds sufficient to pay the invoices may have been available. The evidence was insufficient to demonstrate with any certainty that the funds were not available. Accordingly, is not found by clear and convincing evidence that the money due and owing Pengraphix was not available in the campaign treasury at the time the debt was incurred. Accordingly, Mr. Smith is not guilty of Counts 80 and 81. Counts 82-83. Allegations involving Section 106.11(3), requiring a candidate to pay for previously incurred expenses for the purchase of goods and services upon delivery and acceptance of the goods and services. Reference to the Statement of Findings reveals that these two counts address the two orders for printed matter placed at Pengraphix. It is clear that these purchases were not paid at the time of delivery and acceptance. However, the proof adduced at the hearing failed to demonstrate when the amounts were liquidated. It is clear, however, that at some point prior to December 1, 2000, the amounts were known, or at least discoverable, and therefore payable. It is found by clear and convincing evidence that Mr. Smith violated the charged portion of Section 106.11(3). Accordingly, he is guilty of Counts 82-83. Count 84. Allegation involving Section 106.141(1) condemning the failure of a candidate to properly dispose of surplus campaign funds subsequent to being elected. The general election that resulted in Mr. White's victory was held November 7, 2000. The ending balance shown on the campaign treasury bank statement on November 30, 2000, was $613.97. The ending balance shown on the campaign treasury bank statement on December 29, 2000, was $597.97. The ending balance shown on the campaign treasury bank statement on January 31, 2001, was $4.78. The imposition of bank fees on February 9, 2001, resulted in a zero balance in the account that was reflected on the February 2001 statement. The ninetieth day following Mr. Smith's election was February 5, 2001. Though de minimis, a violation of the statute occurred, and he is guilty of Count 84. Counts 85-87. Allegations involving Section 106.141(1) prohibiting a candidate from accepting a contribution subsequent to being elected. Bank records of the campaign treasury indicate that a deposit to the account was made on January 2, 2001, in the amount of $187, and on January 3, 2001, in the amount of $100, almost two months after the election. An amendment to the CTR for the period November 2, 2000 to December 31, 2000, which was filed April 24, 2002, indicates that the candidate loaned the campaign $287. Mr. Smith explained that the two deposits were made so that a campaign debt could be paid. The sum of the two contributions plus the amount remaining in the account, $597.97, totaled $884.97 that was sufficient to cover a check for $864.19, which was, in Mr. Smith's words, ". . .payment of the substantial debt, $864.19." To what substantial debt he refers cannot be determined from the evidence of record but it is within 30 cents of the amount of the smaller of the two Pengraphix amounts reported as expenditures on December 1, 2000. In January 2001, a sum of money remained to be paid to Pengraphix. As noted above, this debt was compromised in the amount of $1,850. Mr. Smith did not have personal funds available to pay that amount, or money in the campaign treasury sufficient to pay that amount, so he prevailed upon his friend, Mr. Murphy, to pay the amount for him, and promised to repay Mr. Murphy with interest. Mr. Murphy did in fact pay Pengraphix $1884.92 to settle the debt owed by Mr. Smith. The difference between $1850 and the $1884.92 actually paid, most likely represents accrued interest. This payment was made, according to the Stipulation, on January 11, 2001. Mr. Smith repaid Mr. Murphy, by check in February 2002 in the amount of $1990. The exact day in February was not written on the date line on the check, but it cleared the bank on February 25, 2002. Whether or not these allegations of Counts 85-87 are supported by the cited statute, will be discussed in the Conclusions of Law, below. Count 88. Allegation involving Section 106.19(1)(a), prohibiting a candidate from accepting a contribution in excess of $500. This count addresses the payment by Mr. Murphy to Pengraphix discussed above. Whether or not the cited statute supports these allegations will be discussed in the Conclusions of Law, below. Count 89. Allegation involving Section 106.19(1)(b), condemning the failure of a candidate to report a contribution. This count addresses the payment by Mr. Murphy to Pengraphix discussed above. The transaction was not reported on any CTR with Mr. Murphy's name connected to it. Whether or not the cited statute supports these allegations will be discussed in the Conclusions of Law, below. Count 90. Allegation involving Section 106.19(1)(c), condemning the failure of a candidate to report a contribution. This count addresses the payment by Mr. Murphy to Pengraphix discussed above. The transaction was not reported on any CTR. Whether or not these allegations are supported by the cited statute will be discussed in the Conclusions of Law, below. Counts 91-94. Allegations involving Section 106.19(1)(d), prohibiting a candidate from making an expenditure prohibited by Chapter 106. These counts address the same facts pertinent to the events discussed in paragraphs 11-15, above. These facts support three violations of Section 106.021(3), as well as the three violations of Section 106.19(1)(d), as alleged. They are, however, multiplicious with three of the allegations recited as Counts 2-4. Mr. Smith's assets. Mr. Smith reported a net worth of $707,609, on his "Full and Public Disclosure of Financial Interests 1999." He testified that as a result of criminal charges and the current litigation, his net worth has decreased since 1999. He currently owns two parcels of real property worth more than $200,000 that is subject to mortgages in an unknown amount. He owns several vehicles including a 1995 Chevrolet Tahoe that he drives, and a new Chevrolet Yukon that his wife drives. He also owns a tow truck that is used in his business. His net worth cannot be determined by the evidence before the Administrative Law Judge. However, it is determined that he is not impecunious.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED: That a final order be entered which finds that Mr. Smith committed 44 of the violations alleged in the Order of Probable Cause and that he should be assessed a civil penalty of $5,000. DONE AND ENTERED this 25th day of June, 2003, in Tallahassee, Leon County, Florida. HARRY L. HOOPER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 25th day of June, 2003. COPIES FURNISHED: Robert R. Kimmel, Esquire Kimmel & Batson Post Office Box 12266 Pensacola, Florida 32581-2266 Eric M. Lipman, Esquire Florida Elections Commission 107 West Gaines Street The Collins Building, Suite 224 Tallahassee, Florida 32399-1050 Barbara M. Linthicum, Executive Director Florida Elections Commission 107 West Gaines Street The Collins Building, Suite 224 Tallahassee, Florida 32399-1050 Patsy Ruching, Clerk Florida Elections Commission 107 West Gaines Street Collins Building, Suite 224 Tallahassee, Florida 32399-1050
The Issue The issue is whether Respondent willfully violated Section 106.07(5), Florida Statutes (2004), by certifying to the correctness of five campaign treasurer's reports (CTRs), which did not disclose payments that Respondent's media consultant made to two television stations on Respondent's behalf.
Findings Of Fact Petitioner has jurisdiction to investigate and enforce Chapter 106, Florida Statutes. Respondent was an unsuccessful candidate for the Walton County Commission in 2004. Respondent was defeated in the August 31, 2004, primary election. Respondent is not an experienced politician. The 2004 campaign was his first and only attempt to run for public office. Respondent's campaign was entirely self-funded. Guy Davidson was the political consultant for Respondent's opponent. On or about August 22, 2004, Mr. Davidson filed a sworn complaint with Petitioner against Respondent. The complaint alleged that Respondent was running television ads (requiring cash in advance) although no expenditures to stations for airtime appeared on Respondent's CTRs. On March 10, 2004, Respondent signed a Statement of Candidate form as required by Section 106.023, Florida Statutes (2003). The statement indicates that Respondent had received, read, and understood the requirements of Chapter 106, Florida Statute (2003). On March 10, 2004, Respondent filed his Appointment of Campaign Treasurer and Designation of Campaign Depository for Candidates. Respondent appointed his personal and business bookkeeper, Iris Schipper, to serve as his campaign treasurer. Respondent had confidence in Ms. Schipper, who had accounting experience, but no experience with political campaigns. On July 15, 2004, Respondent appointed himself as his deputy campaign treasurer. In the spring of 2004, Respondent hired Steven Petermann, the owner of Petermann Corporation, as his campaign media consultant for the purpose of creating, producing, distributing and disseminating political advertisements for Respondent's campaign. Mr. Petermann was in charge of all media aspects concerning Respondent's campaign. Respondent had known Mr. Petermann for years. Prior to the 2004 campaign, Respondent employed Mr. Petermann for advertising services concerning business ventures unrelated to Respondent's campaign. Mr. Petermann was experienced in providing campaign advertising for local political races. He had done so for approximately 30 campaigns. Mr. Petermann provided Respondent with advertising services which were similar to the services that Mr. Petermann provided to other political candidates. Respondent never specified to Mr. Petermann what advertising to buy or how much to spend. Respondent and Mr. Petermann had no specific payment or billing terms in mind when Mr. Petermann agreed to act as Respondent's media consultant or at anytime during the campaign. Generally, Mr. Petermann did not expect his political clients to pay him until the end of their campaigns. However, Respondent attempted to pay Mr. Petermann in full in accordance with the balance due on Petermann Corporation statements or in advance on those occasions when Respondent knew about projected campaign costs. In other words, Respondent tried to make sure that Mr. Petermann was paid in advance or promptly reimbursed for campaign expenses. In this regard, Respondent acted consistently with his prior private business relationship with Mr. Petermann. With regard to Respondent's campaign advertising budget, Respondent told Mr. Petermann to do "whatever it took to run a successful campaign." Respondent trusted Mr. Petermann's professional judgment as to how much advertising was needed and in which mediums the advertising was to run. Respondent knew Mr. Petermann was making expenditures on behalf of the campaign. Respondent was aware of each and every expenditure his campaign made to Mr. Petermann because he was very involved in his campaign finances. Mr. Petermann wrote the following checks on his business account directly to WJHG-TV and WBBM-TV for advertising time on behalf of Respondent's campaign: Date of Check Check Number Payee Television Station Amount of Petermann Expenditure for Perry 06-11-04 025246 WMBB-TV $442.00 06-14-04 025247 WJHG-TV $450.50 06-29-04 025294 WJHG-TV $450.50 06-29-04 025297 WMBB-TV $446.25 07-26-04 025405 WJHG-TV $743.75 07-26-04 025406 WMBB-TV $956.25 08-12-04 025491 WJHG-TV $743.75 08-12-04 025492 WMBB-TV $956.25 08-30-04 025548 WJHG-TV $331.50 Respondent made no expenditures from his campaign account directly to a television station. Additionally, no expenditures to television stations were listed on Respondent's CTRs. Mr. Petermann purchased all of the television airtime on behalf of Respondent's campaign. Mr. Petermann periodically sent Respondent statements for campaign services and expenses. The statements did not itemize each expenditure for television airtime. The statements did list television advertising and various other advertising purchases in general. Respondent did not list the checks that Mr. Petermann paid directly to WJHG-TV and WMBB-TY for Respondent's television airtime on any CTR during his 2004 campaign. A member of the public could not look at Respondent's CTRs and determine the following: (a) which television stations Respondent paid for campaign advertising; (b) how much Respondent paid for television advertising; and (c) how much Respondent paid for Mr. Petermann's professional services. During the course of the campaign, Respondent reported making several payments to Petermann Advertising or Petermann Corporation. Respondent listed each payment made to Mr. Petermann on his CTRs. Respondent did not break down the expenditures and itemize the components of the expenditures on his CRTs, including how much was paid to Mr. Petermann for his professional services. In a letter dated June 24, 2004, Mr. Beasley, Walton County Supervisor of Elections, advised all candidates, including Respondent, to read an enclosed memorandum from Phyllis Hampton, Chief of the Bureau of Election Records for the Department of State, Division of Elections. Mr. Beasley requested all candidates to sign an enclosed statement and return the statement to his office in the enclosed stamped and addressed envelope. Ms. Hampton's memorandum was dated June 17, 2004. It specifically referred to "2004 Campaign Finance Legislative Changes." The memorandum discussed the disclaimer that candidates were required to use on campaign advertising effective July 1, 2004. The last two paragraphs of Ms. Hampton's memorandum stated as follows: Enclosed is a copy of Chapter Law 2004- 252 (CS/SB 2346 &516). Section 5 of this law amends Section 106.143, Florida Statutes. We are also enclosing a handout that contains Section 106.143, Florida Statutes, as amended, as well as examples of political disclaimers under the new law. There are other changes in this law that affect campaign financing for candidates and a summary of those changes is enclosed. The Division of Elections of the Department of State has posted all enacted legislation that affect The Florida Election Code, Chapters 97-106, Florida Statutes, on its web site. That web site is http://election.dos.state. fl.us. If you have any questions, please feel free to call us at 850-245-6240. When Mr. Beasley received Ms. Hampton's memorandum, it included a copy of Public Law 2004-252. Mr. Beasley did not duplicate the law when he sent Ms. Hampton's memorandum to candidates in Walton County. If any candidate had requested a copy of the new law, Mr. Beasley would have obtained a copy for the candidate or referred the candidate to the Internet. Respondent received Ms. Hampton's memorandum regarding the changes in the law, but he did not read it over in detail. Instead, Respondent continued to direct his attention to campaign issues. There is no evidence that Respondent took any affirmative steps to inquire which sections of the law were amended in addition to the requirements for political disclaimers. Respondent did not go to the Department of State, Division of Elections' website to review the law or a copy of the updated candidate's handbook. All Respondent did was to send a copy of the letter to Mr. Petermann. Respondent did not give Ms. Schipper a copy of Ms. Hampton's June 17, 2004, memorandum during the campaign. Ms. Schipper received the memorandum and filed it in one of Respondent's campaign files after the campaign ended. Respondent wrote a personal check dated June 30, 2004, made payable to Peterman Corp. in the amount of $7,500. The check does not state its purpose. Mr. Petermann deposited this check in his business account on July 1, 2004. Respondent wrote the June 30, 2004, personal check to Petermann Corp. because he was in Mr. Petermann's office and wanted to make sure Mr. Petermann was paid promptly for his services and expenses on Respondent's behalf. On June 30, 2004, Respondent had not yet appointed himself as his deputy campaign treasurer and did not have a campaign check signed by Ms. Schipper. Respondent's Q2 CTR, which covered the period from April 1, 2004, to June 30, 2004, was due to be filed on July 12, 2004. The report listed no expenditure to Mr. Petermann. The report did not disclose that Mr. Petermann had spent $1,789.25 on behalf of Respondent's campaign to pay for advertisements on two television stations during the reporting period. On July 24, 2004, Respondent, as deputy campaign treasurer, wrote a check on his campaign account. The check was payable to Petermann Advertising in the amount of $10,000. The check did not state its purpose. On August 5, 2004, Ms. Schipper wrote a check on Respondent's campaign account. The check was payable to Respondent in the amount of $7,500. The purpose of the check was to reimburse Respondent for the amount Respondent paid to Mr. Petermann out of Respondent's personal account on June 30, 2004. On August 6, 2004, Ms. Schipper wrote a check on Respondent's campaign account. The check was payable to Petermann Advertising in the amount of $10,000. The check states that its purpose was advertising. Respondent's F2 CRT, which covered the period from July 24, 2004, through August 6, 2004, was due to be filed on August 13, 2004. The F2 CRT listed the following payments as expenditures: (a) a check dated July 24, 2004, to Petermann Advertising for campaign advertising in the amount of $10,000; (b) a check dated August 5, 2004, to Petermann Advertising/mlp (Respondent's initials) for campaign advertising in the amount of $7,500; and (c) a check dated August 6, 2004, to Petermann Advertising for campaign advertising in the amount of $10,000. The August 5, 2004, check, listed as payable to Petermann Advertising/mlp, was a reimbursement to Respondent for the personal check he wrote on June 30, 2004. Respondent's F2 CTR did not disclose that Mr. Petermann spent $1,700 on behalf of Respondent's campaign to pay for advertisements on two television stations during the reporting period. Ms. Schipper contacted someone in Mr. Beasley's office in Santa Rosa Beach, Florida, by telephone on August 13, 2004, before she filed Respondent's F2 CRT. Ms. Schipper inquired about the proper method of reporting the August 5, 2004, payment of campaign funds to reimburse Respondent for his personal check dated June 30, 2004, to Mr. Petermann. During the hearing, Ms. Schipper testified as follows: Okay. I called the -- there was a question about this particular expense because the nature of the check that I just explained because I wasn't sure. I knew I had to report it, but I wasn't sure how I should report it. So I called the supervisor of elections office and I told them what had happened, including the fact that Lee Perry was totally self-funding his campaign and that he had a paid check personally that we need to record as an expenditure on the campaign account and I told her that I had to -- to fund the campaign account and then pay it back to Lee and it was just like an in and out transaction, but I had to report it, but it was to Petermann Advertising. We had other checks to Petermann Advertising. It was all the campaign advertising. How did I need to do that. After speaking with an unidentified female in Mr. Beasley's office, Ms. Schipper was not comfortable with the answer to her inquiry. Ms. Schipper decided to list the check as payable to Petermann Advertising/mlp. Ms. Schipper did not call anyone else regarding the proper method of reporting the June 30, 2004, check, which reimbursed Respondent for reimbursing Mr. Petermann for advertising services and advertising expenses paid to television stations. On August 20, 2004, Ms. Schipper wrote a campaign check payable to Petermann Advertising for campaign advertising in the amount of $15,000. Respondent's F3 CTR, covering the period from August 7, 2004, through August 26, 2004, was due to be filed on August 27, 2004. Respondent's F3 CTR listed one expenditure to Petermann Advertising for campaign advertising in the amount of $15,000. Respondent's F3 CTR did not disclose that Mr. Petermann had spent $1,700 on behalf of Respondent's campaign to pay for advertisements on two television stations during the reporting period. On September 10, 2004, Ms. Schipper wrote a campaign check payable to Petermann Advertising for campaign advertising in the amount of $11,422.23. Respondent's G1 CTR, covering the period from August 27, 2004, through September 10, 2004, was due to be filed on September 17, 2004. Respondent's G1 CTR listed a check payable to Petermann Advertising as an expenditure. The check, dated September 10, 2004, was for campaign advertising in the amount of $11,422.23. Respondent's G1 CTR did not disclose that Mr. Petermann spent $331.50 on behalf of Respondent's campaign to pay for advertisements on one television station during the reporting period. On October 19, 2004, Ms. Schipper wrote a campaign check payable to Petermann Advertising for the "Perry Campaign" in the amount of $9,100. After filing Respondent's F3 CTR, Ms. Schipper realized that Mr. Petermann never received the August 20, 2004, campaign check in the amount of $15,000. Therefore, Ms. Schipper cancelled the check and filed an Amended F3 CTR on October 22, 2004. Respondent's Amended F3 CTR indicated that $15,000 was subtracted from Respondent's expenditures. The Amended F3 CTR listed the October 19, 2004, check as an expenditure. The check was payable to Petermann Advertising for campaign advertising in the amount of $9,100. Mr. Beasley has two offices. The main office is located in Defuniak Springs, Florida. The satellite office is located in Santa Rosa Beach, Florida. Neither office has a written record of inquiries concerning the reporting of expenditures for Respondent's campaign. As a general office practice, Mr. Beasley's staff does not make notes or records of telephone conversation with candidates or other individuals who call regarding campaign issues. Ms. Schipper called Mr. Beasley's office in Santa Rose Beach, Florida, when she had a question about her duties as campaign treasurer. If she could not get an answer to her question, Ms. Schipper called Mr. Beasley's office in Defuniak Springs, Florida. Ms. Schipper's office during the 2004 campaign was in Respondent's residence, which had two telephone lines. During the hearing, Respondent presented telephone records showing seven telephone calls from the residence to Mr. Beasley's main office in Defuniak Springs, Florida, on the following dates: July 1, 2004; July 7, 2004; July 16, 2004; July 17, 2004; August 27, 2004; August 30, 2004; and September 9, 2004. The telephone records do not show any calls made to Mr. Beasley's office in Santa Rosa Beach, Florida. Ms. Schipper called Mr. Beasley's Santa Rosa Beach office to inquire about reimbursing Respondent for the June 30, 2004, personal payment to Mr. Petermann. However, there is no evidence that Ms. Schipper called either of Mr. Beasley's offices to inquire specifically about the proper method of reporting campaign expenditures, paid directly to Mr. Petermann, part of which included indirect payments or reimbursements for advertising on television stations. Mr. Beasley has no independent recollection of speaking with Ms. Schipper during the campaign. There is no evidence that anyone on Mr. Beasley's staff remembers speaking with Respondent or Ms. Schipper about campaign finance reports during the 2004 campaign. Mr. Beasley's office provided Respondent with a copy of the 2004 Candidate and Campaign Treasurer Handbook (published November 2003)(handbook) and Chapter 106, Florida Statutes (2003). Respondent and Ms. Schipper referred to these resources from time to time during the campaign on an as needed basis. The handbook did not specifically require a candidate to "itemize" expenditures to media consultants. The handbook contains the following statement on the first page: Important Notice The information contained in this publication is intended as a quick reference guide only and is current upon publication. Chapter 97-106, Florida Statutes, the Constitution of the State of Florida, Division of Elections' opinions and rules, Attorney General opinions, county charters, city charters and ordinances, and other sources should be reviewed in their entirety for complete information regarding campaign financing and qualifying. In addition, the following publication produced by the Florida Department of State, Division of Elections should be reviewed for further information regarding candidates and committees: 2004 Federal Qualifying Handbook 2004 Committee and Campaign Treasurer Handbook 2004 Handbook on Filing Campaign Reports 2004 Election Cycle Calendar of Reporting Dates for Candidates, Political Committees and Committees of Continuous Existence 2004 Election Cycle Calendar of Reporting Dates for Political Party Executive Committees. All forms and publications provided by the Division of Elections are available on our web site at http://election.dos.state.fl.us. Please direct any questions to either your county supervisor or elections or the Florida Department of State, Division of Elections at (850) 245-6240. (Emphasis included) Chapter 7 of the handbook states as follows regarding the duties and responsibilities of campaign treasurers: IMPORTANT: No contribution or expenditure, including contributions or expenditures of a candidate or of the candidate's family, shall be directly or indirectly made or received in furtherance of the candidacy of any person for nomination or election to political office in the state except through the duly appointed campaign treasurer of the candidate. (Emphasis included) Chapter 10 of the handbook states as follows regarding campaign expenditures: An expenditure is a purchase, payment, distribution, loan, advance, transfer of funds by a campaign treasurer or deputy campaign treasurer between a primary depository and a separate interest-bearing account or certificate of deposit, or gift of money or anything of value made for the purpose of influencing the results of an election. * * * A candidate shall: 1. Pay all campaign expenditures by a check drawn on the campaign account (except petty cash); (emphasis included) Chapter 14 of the handbook states as follows regarding the filling of campaign reports: Reporting Expenditures Form DS-DE 14, Itemized Expenditures is used to report all expenditures made, regardless of the amount and must contain: Full name an address of each person to whom expenditures have been made along with the amount, date and clear purpose of the expenditure. Name, address and office sought by each candidate on whose behalf such expenditure was made. Full name and address of each person to whom an expenditure for personal services, salary or reimbursed expenses was made along with the amount, date and clear purpose of the expenditure. A candidate or any other individual may be reimbursed for expenses incurred for travel, food and beverage, office supplies, and mementoes expressing gratitude to campaign supporters as provided for in section 106.021(3), F.S. * * * 5. Amount and nature of debts and obligations owed by or to the candidate, which relate to the conduct of any political campaign. (Emphasis included) On July 1, 2004, amendments to Chapter 106, Florida Statutes (2004), became effective, including the addition of Section 106.07(4)(a)13., Florida Statutes (2004), which states as follows: (4)(a) Each report required by this section shall contain: * * * 13. The primary purpose of an expenditure made indirectly through a campaign treasurer for goods and services such as communications media placement or procurement services, campaign signs, insurance, and other expenditures that include multiple components as part of the expenditure. The primary purpose of an expenditure shall be that purpose, including integral and directly related components that comprises 80 percent of such expenditure. After July 1, 2004, the Department of State, Division of Elections, revised and published the 2004 Candidate and Campaign Treasurer Handbook (effective July 2004)(amended handbook). The preface to the amended handbook states as follows: "This publication has been amended in July of 2004 to reflect changes as provided by Chapter Law 2004-252. New language is displayed in red." The notice on the first page of the amended handbook was not revised. Chapter 7 of the amended handbook states as follows regarding the duties and responsibilities of campaign treasurers: IMPORTANT: No contribution or expenditure, including contributions or expenditures of a candidate or of the candidate's family, shall be directly or indirectly made or received in furtherance of the candidacy of any person for nomination or election to political office in the state except through the duly appointed campaign treasurer of the candidate, subject to the following exceptions: * * * Reimbursements to a candidate or any other individual for expenses incurred in connection with the campaign by a check drawn upon the campaign account and reported pursuant to Section 106.07(4), F.S. After July 1, 2004, the full name and address of each person to whom the candidate or other individual made payment for which reimbursement was made by check drawn upon the campaign account shall be reported pursuant to Section 106.07(4), F.S., together with the purpose of such payment; Expenditures made indirectly through a treasurer for goods or services, such as communications media placement or procurement services, campaign signs, insurance or other expenditures that include multiple integral components as part of the expenditure and reported pursuant to Section 106.07(4)(a)13 . . . . (Emphasis included) Chapter 10 of the amended handbook states as follows regarding campaign expenditures: An expenditure is a purchase, payment, distribution, loan, advance, transfer of funds by a campaign treasurer or deputy campaign treasurer between a primary depository and a separate interest-bearing account or certificate of deposit, or gift of money or anything of value made for the purpose of influencing the results of an election or making an electioneering communication. An expenditure for an electioneering communication is made when the earliest of the following occurs:A person executes a contract for applicable goods or services;A person makes payment, in whole or in part, for applicable goods or services ; orThe electioneering communication is publicly disseminated. * * * A candidate or other individual may be reimbursed for expenses incurred in connection with the campaign by a check drawn on the campaign account and reported pursuant to section 106.07(4), F.S. After July 1, 2004, the full name and address of each person to whom the candidate or other individual made payment for which reimbursement was made by check drawn upon the campaign account shall be reported pursuant to Section 106.07(4), F.S., together with the purpose of such payment. * * * A candidate shall: 1. Pay all campaign expenditures by a check drawn on the campaign account (except petty cash); (Emphasis included) Chapter 14 of the amended handbook states as follows regarding the filling of campaign reports: Reporting Expenditures Form DS-DE 14, Itemized Expenditures is used to report all expenditures made, regardless of the amount and must contain: Full name an address of each person to whom expenditures have been made along with the amount, date and clear purpose of the expenditure. Name, address and office sought by each candidate on whose behalf such expenditure was made. Full name and address of each person to whom an expenditure for personal services, salary or reimbursed expenses was made along with the amount, date and clear purpose of the expenditure. A candidate or any other individual may be reimbursed for expenses incurred for travel, food and beverage, office supplies, and mementoes expressing gratitude to campaign supporters as provided for in section 106.021(3), F.S. (Emphasis included) * * * 5. Amount and nature of debts and obligations owed by or to the candidate, which relate to the conduct of any political campaign. * * * 7. The primary purposes of an expenditure made indirectly through a campaign treasurer for goods and services such as communications media placement or procurement services, campaign signs, insurance, and other expenditures that include multiple components as part of the expenditure. The primary purpose of an expenditure shall be that purpose, including integral and directly related components, that comprises 80 percent of such expenditure. (Emphasis included) For the 2004 campaign, reporting forms applicable to candidates did not provide for "itemization" of payments made by media consultants to various component providers of goods and services. In contrast, forms applicable to political parties and committees required and provided a reporting mechanism for itemizing payments made by third party consultants to the providers of the component services. Those forms did not specifically apply to individual candidates. At the time of the hearing, the Department of State, Division of Elections, was in the rulemaking process to develop standards and reporting forms for candidates to use when itemizing component parts of an expenditure made to a campaign consultant or vendor. Respondent and Ms. Schipper never called the Florida Department of State, Division of Elections, to make campaign finance report inquiries. After reviewing the handbook as published in November 2003, Ms. Schipper believed she had a fair understanding of campaign reporting requirements. Ms. Schipper did not review Chapter 106.07(4), Florida Statutes (2004), or the amended handbook. Respondent also reviewed Chapter 106, Florida Statutes (2003), and the handbook as published in November 2003. He did not review Section 106.07(4)(a), Florida Statutes (2004), but primarily relied on Ms. Schipper to properly report campaign expenditures. All checks written on Respondent's campaign account were reported on Respondent's CTRs. Respondent's CTRs reflect that Respondent's total campaign account receipts equaled his total expenditures. During the hearing, the parties stipulated that Respondent had the ability to pay the maximum fine possible if it was determined that he committed the violations charged.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That Petitioner enter a final order finding that Respondent violated Section 106.07(5), Florida Statutes (2004), as charged in Counts 1-5 of the Order of Probable Cause, dismiss Count 6 of the Order of Probable Cause, and impose a civil penalty in the amount of $5,000. DONE AND ENTERED this 30th day of June, 2006, in Tallahassee, Leon County, Florida. S SUZANNE F. HOOD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of June, 2006.
The Issue The issues are whether Petitioner effectively elected to move her retirement account from the Florida Retirement System (“FRS”) Pension Plan to the FRS Investment Plan prior to her retirement from state employment or, if not, whether Respondent, State Board of Administration (“SBA”) is estopped from claiming that Petitioner did not successfully elect to move her retirement account into the FRS Investment Plan.
Findings Of Fact Based on the evidence adduced at hearing, and the record as a whole, the following Findings of Fact are made: Petitioner, Adrian Wagner began her state employment on April 22, 1994, with the Department of Health and Rehabilitative Services, which was renamed the Department of Children and Family Services after a 1996 reorganization. Since 2012, the agency has been named the Department of Children and Families. Upon her hiring, Ms. Wagner was enrolled in the Pension Plan, which was the only retirement program available for eligible employees in 1994. In 2002, the Investment Plan was made available for employees participating in the FRS. Ms. Wagner was provided a three month window, from December 1, 2002, through February 28, 2003, to switch to the Investment Plan. The Plan Choice Administrator did not receive an election from Ms. Wagner during the three month period. Therefore, Ms. Wagner remained in the Pension Plan by statutory default. See § 121.4501(4)(a), Fla. Stat. Ms. Wagner changed employers but remained in the FRS system until her last day of employment on April 3, 2019. At the time of her retirement from FRS-eligible employment, Ms. Wagner was working for the Alachua County Sheriff’s Office. On March 4, 2019, Ms. Wagner logged onto the FRS website, MyFRS.com, from her home computer. Her intention was to use the second election opportunity afforded by section 121.4501(4)(f), Florida Statutes, to move from the Pension Plan to the Investment Plan. Ms. Wagner recalled clicking a green button to change her plan, which took her to a page that read, “ready to make a decision” to change from the Pension Plan to the Investment Plan. It set out the steps needed to make the change. Ms. Wagner testified that she clicked on a green arrow that said, “change your plan,” which took her to a page that set forth the amount of money she would have in the Investment Plan. She continued to a page showing the different plans available to participants in the Investment Plan. The website advised her to contact an Ernst and Young (“EY”) financial planner to discuss her plan options. Ms. Wagner testified that a few minutes later she used the phone number provided by the MyFRS.com website to contact the EY financial planners. She testified that the EY planner with whom she spoke was named “Josh.” The EY call summary log for Ms. Wagner was entered into evidence. The log is a record of every phone call between EY and Ms. Wagner. It includes the date and time of the call, the name of the EY employee who spoke to Ms. Wagner, and a brief summary of their discussion. The EY call summary log identified the EY planner who spoke with Ms. Wagner at 12:10 p.m., on March 4, 2019, as Joshua Kantrowitz. Ms. Wagner testified that Mr. Kantrowitz told her that he could not see in his computer that she had made the switch to the Investment Plan. While Mr. Kantrowitz waited, Ms. Wagner clicked several “back” buttons on the MyFRS.com website. She then went through the same page progression she had done previously to make her plan selection. Ms. Wagner recalled finalizing her decision by clicking a button that read “send,” or “submit,” or “continue.” Ms. Wagner testified that Mr. Kantrowitz told her that he could now see that she had elected to change her retirement from the Pension Plan to the Investment Plan. They discussed fund options, tax questions, and penalties for taking funds out of the Investment Plan. Mr. Kantrowitz verified Ms. Wagner’s email address so that he could send her an FRS Investment Beneficiary Form. Ms. Wagner understood Mr. Kantrowitz to say that she would not be able to see that she had changed to the Investment Plan on the website for about a month. The conversation was interrupted when the phone connection was lost. Ms. Wagner testified that it was her understanding that she had successfully changed her retirement from the Pension Plan to the Investment Plan, and that this change had been confirmed by Mr. Kantrowitz. A transcript of the conversation between Ms. Wagner and Mr. Kantrowitz was entered into evidence. The transcript does not confirm every aspect of Ms. Wagner’s recollection. The transcript records that Ms. Wagner told Mr. Kantrowitz that she “just switched over from the FRS Pension Plan to the Investment Plan.” Mr. Kantrowitz asked when she made the switch. Ms. Wagner responded, “I just hit it today. Did it today.” She added that she made the election “about ten minutes ago.” The transcript clarifies that Mr. Kantrowitz accepted, but did not confirm, Ms. Wagner’s statement that she made the switch to the Investment Plan. After Ms. Wagner told him that she made the switch only 10 minutes ago, Mr. Kantrowitz stated: Okay. And you did it by--basically, you know, if you do--you know, it’s still being processed at the moment. Basically, you know, in the next month, it’s going to make that conversion. In order to, you know, switch and make that choice, you know, the types of investments you’re putting into. Okay. So I do want to keep you aware of that if you did fill it out today, okay. Mr. Kantrowitz never confirmed that the second election had been completed nor did he state whether he could or could not see the change on his computer. Mr. Kantrowitz simply accepted Ms. Wagner’s word and went on to tell her what would happen next if she indeed made the change. Mr. Kantrowitz did state that the conversion would be made in the next month, confirming in part Ms. Wagner’s recollection that she was told that it would be a month before she could see the switch to the Investment Plan on the website. Again, however, this statement was contingent: if Ms. Wagner made the change, the conversion would take about a month. The EY call summary log entry for the March 4, 2019, conversation, presumably completed by Mr. Kantrowitz, records Ms. Wagner’s “Question or Problem” as “made a switch to the FRS IP. [D]oesn’t plan to work in the FRS anymore.” The log records the “Resolution” with a series of four bullet points: talked about IP. taxation, timelines, HIS. says she spoke with admin and they said she would hit NRA at April 1 for 25 YOS SR. she did the 2nd election online and was defaulted into the FRS RDF. needs to set up beneficiaries sending out beneficiary form It could be argued that the second bullet point confirms that Ms. Wagner successfully completed the second election into the Investment Plan. However, when read in tandem with the transcript, Mr. Kantrowitz’s notes clearly set forth his summary of the conversation as it occurred, not his independent conclusion that Ms. Wagner had completed the second election. After the call with Mr. Kantrowitz was dropped, Ms. Wagner called back to inquire as to her exact retirement date. She spoke briefly with another EY planner, Zach Brown, who told her that the Division of Retirement keeps the record of official years of service for employees. Mr. Brown transferred the call to the Division of Retirement. The transcript indicates that Ms. Wagner remained on hold for some time, then hung up before speaking with a Division of Retirement representative. Ms. Wagner testified that on March 18, 2019, she again contacted the EY financial planners. She spoke for roughly a half-hour with a woman whose name she did not recall. The woman verified Ms. Wagner’s personal account information. After being verified, Ms. Wagner asked tax and health care subsidy questions and stated that she planned eventually to move her Investment Plan account from EY to an outside investment firm. Ms. Wagner testified that the EY planner never stated that she was not enrolled in the Investment Plan. The EY call summary log does not show a phone call from Ms. Wagner on March 18, 2019. Ms. Wagner testified that on March 19, 2019, she met with Shawn Powers, the human resources manager for the Alachua County Sheriff’s Office, to discuss Ms. Wagner’s impending retirement. As Ms. Powers filled out a retiree insurance data sheet, Ms. Wagner told her that she had enrolled in the Investment Plan. Ms. Powers cautioned her about the risks involved in the Investment Plan. Ms. Wagner assured her that she understood the risks. Ms. Powers checked the “Investment Plan” box on the insurance form. Ms. Wagner signed the form, attesting to her understanding that she had made the election to move from the Pension Plan to the Investment Plan. Ms. Wagner testified that, after the March 4, 2019, conversation with Mr. Kantrowitz, she received several emails from EY financial planners. She understood these emails as indirect confirmation that she had successfully elected to move to the Investment Plan. During cross-examination, Ms. Wagner conceded that none of these communications affirmatively stated that she was now in the Investment Plan. The third-party Plan Choice Administrator for the Investment Plan is Alight Solutions. FRS members who wish to utilize their second election have multiple options: they may complete and mail in a hard copy form; they may submit a second election form on the MyFRS.com website; or they may log into their account on the MyFRS.com website and go through the process of submitting and confirming their second election online. Fla. Admin. Code R. 19-11.007(3). If an FRS member successfully utilizes the online MyFRS.com process for submitting a second election, an “election confirmation” page appears that informs the member that the election has been received by Alight Solutions. Ms. Wagner had no specific recollection of receiving an electronic confirmation that her election to move to the Investment Plan had been successfully submitted or that it had been received by Alight Solutions. If an FRS member successfully submits an election form to Alight Solutions, a hard copy letter is mailed to the member confirming receipt. Ms. Wagner had no specific recollection of receiving any type of correspondence confirming receipt of her Investment Plan election via conventional mail. Ms. Wagner retired from the Alachua County Sheriff’s Office on April 3, 2019. The parties stipulated that the SBA has no record of receiving a second election from Ms. Wagner during her term of employment with an FRS-participating employer. On April 8, 2019, Ms. Wagner logged onto the MyFRS.com website and saw that she was still enrolled in the Pension Plan. Ms. Wagner immediately phoned the number for the EY financial planners and was transferred to a “solutions person” named Nichole. Ms. Wagner explained to Nichole that on March 4, 2019, she had elected to move her retirement account from the Pension Plan to the Investment Plan via the MyFRS.com website. She provided Nichole with the chronology of events from March 2019 as she remembered them. Nichole told Ms. Wagner that she would research the matter and get back to her within two weeks. Ms. Wagner testified that on or about April 22, 2019, Nichole phoned her to say that she could find no record of anything Ms. Wagner claimed to have done on the MyFRS.com website. Nicole told Ms. Wagner that she would need more time, possibly another two weeks, to do further research on the matter. Ms. Wagner told Nichole how upset she was. Nichole assured Ms. Wagner that she would do her best to find out what happened. Nichole also stated that she would send Ms. Wagner a form to request that the SBA intervene. Ms. Wagner subsequently filed a Request for Intervention, which was received by the SBA on May 17, 2019. Ms. Wagner testified that after she filed her Request for Intervention, but before the SBA responded, she attempted to contact Nichole. Her call was answered by an unnamed EY planner who stated that he would remain on the line while putting her through to a solutions person. Ms. Wagner began speaking with the solutions person but was interrupted by the EY financial planner, who stated that he had found notes by Mr. Kantrowitz indicating that she had changed from the Pension Plan to the Investment Plan. It is highly likely that the unnamed EY financial planner was referencing the EY call summary log notes quoted at Finding of Fact 18. As found above, Mr. Kantrowitz’s contemporary notes reflected what he was told by Ms. Wagner. The notes do not constitute an independent confirmation that Ms. Wagner successfully completed her second election. The SBA submitted into evidence a spreadsheet titled “Participant Web Activity Detail.” SBA witness Allison Olson testified that this document was produced by Alight Solutions in response to her request for all records of Ms. Wagner’s March 4, 2019, activity on the MyFRS.com website. Ms. Olson is the Director of Policy, Risk Management, and Compliance in the Office of Defined Contribution Programs. She credibly testified that she is familiar with reading the Alight Solutions spreadsheets and that she saw nothing on Ms. Wagner’s page indicating that Alight Solutions received her Investment Plan election. Petitioner’s information technology expert, Philip Schwartz, testified that the document provided by Alight Solutions was a “program log,” a high level program that runs to handle a particular task such as an accounting function. Mr. Schwartz testified that he suggested to his client that she request the “server log” for the relevant date. The server log captures every keystroke and click made by a user such as Ms. Wagner, even in situations in which the server is too busy to complete the requested function. Mr. Schwartz believed the program log was insufficient because it showed only which page of the website Ms. Wagner was on at a given moment, not which buttons she clicked or whether she had hit the “send” button. Mr. Schwartz’s suggestion was that Ms. Wagner might have done everything necessary to complete the second election but that the MyFRS.com server may not have recorded her election. The server log would have provided a more accurate representation of Ms. Wagner’s intentions. Ms. Olson testified that, after an informal hearing attempting to resolve the case, she requested a server log from Alight Solutions. The company responded that it did not have the server log. Ms. Olson testified that the program log would indicate the second election had it been completed by Ms. Wagner. Ms. Olson stated that FRS members are always advised to follow through and make sure their election has been received. Mr. Schwartz testified that there is no industry standard as to the length of time a program log should be kept. He has known companies to hold them for as long as a year, but has also known companies to keep them for only 90 days. Mr. Schwartz testified that there is no legal requirement for a company such as Alight Solutions to maintain a program log at all. Mr. Schwartz testified that he did not have enough knowledge of Alight Solutions’ terminology to state whether the program log indicated that Ms. Wagner’s election had been received. Thus, there is no evidence to contradict Ms. Olson’s credible testimony that the Alight Solutions program log did not indicate receipt of Ms. Wagner’s Investment Plan election. The preponderance of the evidence establishes that Ms. Wagner intended to make her second election on March 4, 2019, and to move her retirement account from the Pension Plan to the Investment Plan. The preponderance of the evidence also establishes that Ms. Wagner failed to complete her second election and that Alight Solutions, the Plan Choice Administrator for the Investment Plan, did not receive her election.1/ The evidence was insufficient to show that the SBA or any entity or person acting on its behalf or as its agent made any representation to Ms. Wagner that her second election had been received by the Plan Choice Administrator.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the State Board of Administration enter a final order dismissing Petitioner’s Florida Retirement System Investment Plan Petition for Hearing. DONE AND ENTERED this 8th day of January, 2020, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 8th day of January, 2020.
Findings Of Fact By its Invitation to Bid, RFP #84-012-PS, Respondent sought proposals for the production of public service announcements for statewide distribution for both television and radio broadcast. The Invitation to Bid contained five criteria for evaluating proposals. Four of these were "narrative" criteria worth a maximum of 25 points per category. The fifth category, price, was worth a maximum of 50 points. The dispute in this case concerns Respondent's interpretation of the narrative criteria contained in paragraph X, A., 1 which was used to evaluate: [t]he experience and evident capa- bility of the offeror to perform the work required including the background of the offeror's organi- zation. In response to the Invitation to Bid, Cowles and Petitioner submitted proposals for consideration by Respondent. In response to the narrative criteria requirement contained in paragraph X, A., 1, quoted above, Cowles submitted the following: Bill Cowles was for more than fifteen years employed in the radio and tele- vision industries in Ohio and Florida. For many of those years he was actively in charge of the production and direction of hundreds of public service announce- ments, commercials and news and public affairs programs. For an additional eight years while engaged in political campaigns and the direction of the Republican Party of Florida, he was responsible for innumer- able commercials (all media) for individual candidates, party promotions, get-out-the- vote campaigns, etc. For the past five years, as co-owner of his own business, he has worked closely with many state agencies in a variety of communication related situations. During all these years, the offeror assembled many "teams" of talent representing all the disciplines required in order to most effec- tively complete the task at hand In preparation for the project outlined in this RFP, Cowles has used his vast knowledge and experience to bring together a "team" that is particularly qualified. Working with him to successfully complete the requirements of the RFP will be a staff of experts who will be directed by Cowles and the following professionals: Roy Nilson who is the President/Owner of WRENPRO Corporation has spent his entire career in the electronic media. He has held positions as Program Director, Producer, Operations Manager and Executive Producer of radio and television stations in Minnesota, New Mexico and Tampa-St. Petersburg. He formed WRENPRO, a consulting and production company, in 1971. Nilson is credited with the innovation of the "do-nut" and "pretzel" commercials that are now commonplace in the industry. He has served as consultant to over 100 radio and television stations; written several books on electronic media contests, history and radio auto- mation and has produced and syndicated radio programs and contests. His pro- duction of OPUS, an annual review of the top records of the year, is aired on more than 300 stations. OPUS has been the recipient of two BILLBOARD "Silver Mikes". The public service announcements, com- mercials and programs produced by Nilson number in the thousands. The creativity of Cowles and Nilson will be augmented by the technical expertise of: Dan Lunin who is currently the General Manager of WRENPRO and is also the Production Engineer of Production Associ- ates of Tampa. Lunin in the cast twenty-five years has served as Production Engineer, Channel 40, Sarasota; Production and Chief Engineer, Channel 28, Tampa; Chief and Production Engineer, WLCY AM & FM, Tampa-St. Petersburg and General Manager of TV-9 (Group W), Tampa-St. Petersburg. Mr. Lunin will be in charge of the technical direction of the tasks to be performed at the studios of WRENPRO (radio) and Pro- duction Associates (television) Petitioner contends that the information quoted above from Cowles' proposal was not responsive to the narrative criterion in that Cowles submitted no evidence to show that he had entered into any joint venture agreement or contractual relationship with the associates named in the proposal. Petitioner contends further that Cowles' proposal should have been evaluated on his individual qualifications, and that no consideration should have been given to the background, experience, and capabilities of Messrs. Nilson and Lunin since they were neither employed by nor under contract with Cowles. Petitioner also contends that the inclusion of the experience and qualifications of Messrs. Nilson and Lunin was misleading in that they were not actually "offerors" on the proposal, but were instead only independent contractors who were to be utilized by Cowles. Finally, Petitioner contends that the inclusion of the qualifications and experience of Nilson and Lunin resulted in the award of higher point totals under narrative criteria X, A., 1 than would have been awarded had Cowles been measured on his individual qualifications. The gist of Petitioner's objection to Cowles' proposal is that Cowles does not own a production company, but instead proposes to produce the public service announcements to be furnished to Respondent with associates who are in essence independent contractors. There is, however, no requirement in the Invitation to Bid that the public service announcements be produced by means of an inhouse production company. The means by which the announcements are to be produced is left to the discretion of the offeror, so long as he can demonstrate, in accordance with the terms of the Invitation to Bid, "experience and evident capabilities" to perform the work. In fact, the narrative criteria at issue in this proceeding clearly require a demonstration of "experience and evident capability" to perform the work of both the "offeror" and the "offeror's organization." In this regard, Cowles' response to this narrative criteria, as outlined above, was clearly responsive to the provisions of the Invitation to Bid. Further, nothing in Cowles' response could be misleading, since there is no representation that Messrs. Nilson and Lunin are anything other than independent contractors who would be utilized by Cowles in the production of public service announcements. Cowles has extensive experience in the radio and television industry. In addition, he has produced radio and television announcements and commercials while employed by the Florida Republican Party. There are no facts of record in this proceeding from which it can be concluded that Cowles is either unqualified to perform the work required in the Invitation to Bid, or that he is unable for any reason to successfully produce the work called for in that document. In fact, this record supports the conclusion that Cowles has the requisite experience and evident capability to perform the required work, and that he has, in fact, successfully completed similar projects for other state agencies in the recent past. Finally, Petitioner's contention that Cowles was awarded more points on narrative criteria X, A., 1 than would otherwise have been the case had the qualifications of Messrs. Nilson and Lunin been omitted from his proposal, is without merit in that the record in this proceeding contains no evidence of the points actually awarded to either Cowles or Petitioner in the bid evaluation process. Even had Cowles' proposal been determined in this proceeding to have been unresponsive, there are insufficient facts of record in this cause from which any recommendation could have been made to award the contract to Petitioner. Although the petition alleged that Petitioner was the second lowest bidder, there are no facts of record to substantiate that allegation. In fact, there is no evidence of record in this cause regarding the "cost" portion of the bid submitted by Cowles or Petitioner, which would allow a comparison of those proposals to those of any of the other bidders.
