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 Respondent, James Jennings, violated Subsections 106.021(3), 106.07(5), or 106.19(1)(b), Florida Statutes (2002), as alleged in the Amended Order of Probable Cause dated February 20, 2004, and, if so, what is the appropriate penalty.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing, the following findings of facts are made: Respondent has taught in the public schools of Lee County, Florida, for 31 years. He has a bachelor of science degree. Respondent was a first-time candidate for public office, although he had limited political experience as a precinct committeeman and president of the Sanibel-Captiva Republican Club. He had not been actively engaged in any previous campaign as a campaign treasurer or deputy. Incidental to becoming a candidate he met with appropriate municipal and county election officials and received a campaign handbook which included the following: A Compilation of The Election Laws of the State of Florida (2001), published by the Department of State; 2002 Handbook for Candidates, published by the Department of State; 2002 Handbook for Treasurers, published by the Department of State; Chapter 106, Florida Statutes, published by the Department of State; various Sanibel municipal ordinances related to city elections; a calendar listing important dates for filing campaign documents. Respondent signed a Statement of Candidate which advised that he had received a copy of Chapter 106, Florida Statutes, and that he had read and understood same. It is apparent that Respondent did not understand the Florida Election Law as embodied in Chapter 106, Florida Statutes. Respondent designated a campaign treasurer and a deputy campaign treasurer. Notwithstanding the fact that Subsection 106.021(3), Florida Statutes (2002), clearly states that no campaign expenditure shall be made except through the duly- appointed campaign treasurer, Respondent personally signed 30 campaign checks. In fact, he signed all campaign checks with the exception of one check. On that particular check he directed his wife, the deputy campaign treasurer, who was statutorily authorized to sign the campaign check as deputy campaign treasurer, to sign his name. Inexplicably, Respondent believed that he, personally, was obligated to sign all campaign checks because he was the candidate. Respondent prepared his own Campaign Treasurer's Reports. It is suggested that he received some limited assistance from his wife. On February 28, 2003, Respondent was required to file a Campaign Treasurer's Report for the reporting period of February 8, 2003, through February 27, 2003. Two previous Campaign Treasurer's Reports for periods January 1, 2003, through January 24, 2003, and January 25, 2003, through February 7, 2003, had reporting dates which were seven days after the reporting period ended (January 31, 2003, and February 14, 2003). Respondent believed that the Campaign Treasurer's Report due on February 28, 2003, covered the period from February 8, 2003, through February 21, 2003. The campaign calendar presented by a city elections official clearly indicated the accurate reporting period. On February 28, 2003, immediately prior to filing the subject Campaign Treasurer's Report, Respondent discovered that the report should have included activity through February 27, 2003. He did not include appropriate information for February 21, 2003, through February 27, 2003, because he did not have time to return to his home, obtain the additional information, make appropriate inclusions, and file the report before 5:00 p.m. at the Sanibel City Hall. He merely changed the end of the reporting period on the Campaign Treasurer's Report from February 21, 2003, to February 27, 2003, knowing that it was inaccurate. The Campaign Treasurer's Report failed to include 24 contributions that should have been reported. During the telephone conversation in which he discovered the actual reporting period, he testified that he was advised by a Lee County elections official to file the report even though it was inaccurate, and then immediately file an accurate amended report. This is not credible. February 28, 2003, was a Friday. Respondent filed an Amended Campaign Treasurer's Report on Wednesday, March 5, 2003. The election was on Tuesday, March 4, 2003. Unfortunately, the Amended Campaign Treasurer's Report was not accurate. On June 2, 2003, Respondent filed a Second Amended Campaign Treasurer's Report, which included seven previously unreported contributions. This particular inaccuracy was attributed to the fact that two pages in the spiral notebook used to record contributions had stuck together for some unknown reason concealing these seven contributions. Petitioner failed to present evidence in testimony or stipulated facts as to the amount of unreported contributions. Respondent acknowledged his failure to report 24 contributions, but not the amount of each contribution or of a total amount of unreported contributions. While the orders of probable cause contain specific reference to the amount of each unreported contribution, this is not evidence. It may be possible to sift through the Campaign Treasurer's Reports and estimate the unreported amounts by comparing each report. An examination of the various Campaign Treasurer's Reports suggests that obtaining an accurate figure would be problematic and not exact. I find that there is no basis for an administrative fine predicated on the amount of unreported contributions. Respondent's attempts at campaign bookkeeping mirrored his understanding of the election laws. He, at first, attempted to keep contributions and expenditures in a checkbook register. When this proved inadequate, he started recording contributions and expenditures in a spiral notebook and on lined paper. These records were received into evidence. After a cursory examination of these documents, it is easy to understand why there was confusion. Respondent's campaign bookkeeping lacked basic organization. There does not appear to be any ulterior motive for Respondent's glaring errors, in particular his lack of basic understanding as to who should sign campaign checks. No one was deceived by the candidate's signing his name to the campaign checks. Equally as baffling and disappointing is his failure to understand the reporting periods and his response to his discovery of the error in the time covered by the reporting period in question. While it is argued that the voting public is deceived by Respondent's failure to disclose contributions, it is unlikely that any voters were waiting to examine the Campaign Treasurer's Report on the Monday before a Tuesday election. Clearly, Respondent did not comply with Subsection 106.021(3), Florida Statutes (2002), when he signed 30 campaign checks. This failure is obviated by granting the motion to dismiss the counts related to this violation. He also certified the correctness of the Campaign Treasurer's Report for the February 8, 2003, through February 27, 2003, reporting period knowing that the report was inaccurate and did not accurately reflect contributions. The March 5, 2003, Amended Campaign Treasurer's Report was similarly inaccurate. The real issue regarding Respondent's filing inaccurate Campaign Treasurer's Reports is whether or not these activities were "willful" as defined by Section 106.37, Florida Statutes (2002). Notwithstanding his written assertion that he understood the Florida Election Law, he did not. This is demonstrated by the fact that he clearly did not understand the law regarding who could sign campaign checks. The fact that he directed his wife to sign his name to a campaign check when she was a deputy campaign treasurer and an statutorily authorized signer, demonstrates that he just did not understand the law. Signing a Campaign Treasurer's Report, knowing it did not accurately reflect required reportable activity, clearly violates the law, and cannot be attributed to misunderstanding the law. Even if it is believed that he was advised to file an inaccurate report and file an immediate amended report, which is not credible, Respondent knowingly violated the law. He filed an inaccurate report and certified that it was true and correct when it was not. He should have waited until the following Monday, filed an accurate report, and suffered the fine and potential attendant political repercussions. The Amended Campaign Treasurer's Report filed March 5, 2003, failed to report seven campaign contributions that were ultimately reported on the Second Amended Campaign Treasurer's Report filed on June 2, 2003; this inaccuracy was not done knowingly; however, it does reflect reckless disregard for the law. Respondent's excuse that the pages were stuck together by fruit juice is unacceptable. Respondent did an inexcusably sophomoric job in his campaign record keeping; this failure as a record keeper rises to the level of recklessly filing an inaccurate Campaign Treasurer's Report. Respondent's Statement of Financial Interests (CE Form 1) for the 2002 calendar year reflects an annual income of $51,279, from the Lee County School Board, joint-residential home ownership, modest tax sheltered annuities, and typical debt. This is the only financial information presented. In addition, Respondent has no previous history of involvement with Petitioner and was fully cooperative with the investigation.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent be found to have violated Subsections 106.07(5) and 106.19(1)(b), Florida Statutes (2002), and fined $3,900. DONE AND ENTERED this 24th day of September, 2004, in Tallahassee, Leon County, Florida. S JEFF B. CLARK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 24th day of September, 2004.
The Issue Whether Respondent, John J. Fugate, Sheriff of DeSoto County, willfully violated Subsection 104.31(1)(a), Florida Statutes (2003), which prohibits an officer or employee of the state, or of any county or municipality, from using his or her official authority or influence for the purpose of interfering with an election or a nomination of office or coercing or influencing another person's vote or affecting the results thereof.
Findings Of Fact Based on the oral and documentary evidence adduced at the final hearing and the entire record in this proceeding, the following findings of fact are made: At the time of hearing, Respondent, John J. Fugate, was the incumbent Sheriff of DeSoto County, Florida. He was first elected in November 2000 and took office in January 2001. At the times pertinent to this case, Sheriff Fugate was a candidate for re-election, having filed the initial paperwork appointing a campaign treasurer and naming a depository for campaign contributions on May 20, 2003. Also on May 20, 2003, Sheriff Fugate submitted his signed "Statement of Candidate," pursuant to Section 106.023, Florida Statutes (2003). This document attested that Sheriff Fugate had received, read, and understood "the requirements of Chapter 106, Florida Statutes (2003)." These statutory provisions were included in the "2000 Candidate Handbook On Campaign Financing," published by the state Division of Elections and given to Sheriff Fugate by the local Supervisor of Elections, when Sheriff Fugate filed his paperwork for the 2000 election. The "2004 Candidate and Campaign Treasurer Handbook" was given to Sheriff Fugate when he filed his re-election paperwork with the local Supervisor of Elections and also included the provisions of Chapter 106, Florida Statutes (2003). During the Commission's investigation, Sheriff Fugate admitted that he had also read Chapter 104, Florida Statutes (2003), and believed he understood its provisions. Though Sheriff Fugate had filed the papers establishing his candidacy for re-election, some Sheriff's Office employees openly questioned whether he really intended to stand for re-election. These questions stemmed from the fact that Sheriff Fugate's teenage son had been killed in an automobile accident in 2002. Sheriff Fugate was aware of these questions and was concerned that loyal employees were unsure of his intentions. For some time, Sheriff's Office employees had also been discussing the status of Major William Wise, the second-in- command to Sheriff Fugate. Major Wise had been the chief deputy under Sheriff's Fugate's predecessor, was kept in that position by Sheriff Fugate, and was very popular among the Sheriff's Office employees. Major Wise was a participant in the State of Florida's Deferred Retirement Option Program ("DROP"), which he believed would require him to separate from the Sheriff's Office for one year upon his official retirement in October 2004. However, in October 2003, Major Wise learned that there was a way for him to reduce his separation to 30 days and still retain his full retirement benefit. Sheriff Fugate decided to prepare a letter to all Sheriff's Office employees that would convey both his re-election intentions and the good news concerning the fact that Major Wise would not have to vacate his position. The letter was written on stationery with a header reading, "Re- Elect Fugate for Sheriff," along with Sheriff Fugate's mailing address and phone number. The text of the letter read as follows: It hardly seems possible that the second half of the third year of this term of office is upon us and I can only concur with the saying that "time stands still for no one." For those that have been here for a while, we have made giant strides for the DeSoto County Sheriff's Office in the past two and a half years and for the newer employees, with your help and our combined efforts, I look forward to more success in the future. Thank you for your help and I truly appreciate the service given to the citizens of DeSoto County. In anticipation of running for a second term of office and as legally required, I have opened my official campaign account. This is the first step in any campaign and this announcement is not to be construed as a request for a contribution to my campaign. I, like you, have been in an employment position when the incumbent was seeking another term of office and can personally relate to pressure applied to assist with the campaign. Please understand that I will, and do value your support in any way that you may be inclined to offer. I also encourage anyone that feels that I have not earned your support in any way in the performance of my duty to feel free to talk to me and you can be assured that it will remain professional and will not be made personal. On another note, I know that there has been some question as to what was going to happen to the position of Major due to Major Wise being in the Drop program and it coming to an end. It is with great pleasure that I announce that a way has been found for Major Wise to continue in his position and he has made the decision to do so. Major Wise has contributed a great deal to this office and I am very pleased that he will be staying with us. If anyone has any questions about this letter, I remind you of our "open door" policy and invite you to feel free to stop by and visit with me. Again, thank you and I look forward to our working together to build a better office for the employees and the community. Beneath Sheriff Fugate's signature was the following: "Pd. Pol. Adv. Paid For In-Kind By John J. Fugate. Approved by John J. Fugate (D)." Sheriff Fugate's review of the Candidate Handbooks led him to conclude that he should not use the Sheriff's Office or DeSoto County resources in preparing or distributing his letter and that none of the costs involved in preparing or distributing the letter should be borne by the Sheriff's Office or the County. Thus, Sheriff Fugate drafted the letter on his home computer. He printed approximately 120 copies of the letter on his home printer, using paper and ink that he purchased at Wal- Mart. On his campaign treasurer's report for the third quarter of 2003, Sheriff Fugate reported the cost of ink and paper associated with this letter as an in-kind contribution from himself to his campaign. Sheriff Fugate brought the copies of the letter to the Sheriff's Office and placed one copy in the pay envelope of each Sheriff's Office employee. At the DeSoto County Sheriff’s Office, it was common practice for items other than pay checks to be included in the pay envelopes. Such items had included advertising circulars and public service memoranda, but not political advertisements. The Sheriff's Office had no specific policy setting forth what may or may not be placed in the pay envelopes, nor was there any particular procedure for obtaining approval of what was to be placed in the pay envelopes. Neither Sheriff Fugate, Major Wise, nor payroll supervisor Kathy Willcutts could recall a request to place an item in the pay envelopes ever having been denied. The pay envelopes, including Sheriff Fugate's letter, were distributed to the Sheriff's Office employees in the usual manner, either at the front desk in the Records Division for pickup or in the employee's mail slot. The employees received Sheriff Fugate's letter upon retrieving their paychecks on or about October 2, 2003. Several Sheriff's Office employees testified at the hearing. None of these employees felt that Sheriff Fugate was attempting to influence their vote or pressuring them to make a monetary contribution to his campaign. Lieutenant Carol Williamson is a 28-year Sheriff's Office employee and has worked for five different sheriffs. Lt. Williamson testified that in the past, she has been essentially ordered to campaign for her bosses, but that she did not consider Sheriff Fugate's letter to be anything other than informational. Deputy Mark Lawrence testified that "I read it, said 'okay,' and threw it away." Sheriff Fugate disclaimed any intent to influence his employees' votes or pressure them for campaign contributions. During his career, he had been forced to campaign for his elected superiors. Because of this experience, Sheriff Fugate did not wish to place his own employees in the position of feeling coerced to support him. Sheriff Fugate testified that he used campaign letterhead and included the "paid political advertisement" disclaimer because his reading of the statutes led him to conclude that those items were legally required on any correspondence referencing his campaign. Nevertheless, Sheriff Fugate maintained that his letter was intended solely to convey information, not to coerce or influence anyone's vote. Sheriff Fugate's testimony is supported by the letter itself, which expressly stated that he was not seeking contributions to his campaign and that employees should feel no pressure to support his candidacy. Nonetheless, Sheriff Fugate's letter was clearly an attempt to favorably influence his employees, albeit a low-key one that did not demand support in the apparent manner of previous sheriffs. The letter solicited the support of Sheriff's Office employees, "in any way that you may be inclined to offer." The letter may not have been coercive, but it was disingenuous for Sheriff Fugate to suggest that the letter was not designed to influence his employees in the upcoming election. Sheriff Fugate was cognizant of Section 104.31, Florida Statutes (2003), and its prohibition on the use of "official authority or influence for the purpose of . . . coercing or influencing another person's vote . . . ." However, Sheriff Fugate believed, mistakenly but in all good faith, that his placement of the letters was allowed under another provision of Section 104.31, Florida Statutes (2003): The provisions of this section shall not be construed so as to prevent any person from becoming a candidate for and actively campaigning for any elective office in this state. All such persons shall retain the right to vote as they may choose and to express their opinions on all political subjects and candidates. For reasons expressed in the Conclusions of Law below, Sheriff Fugate's good faith belief that his actions were within the ambit of the statute negates any suggestion that he "willfully" violated Subsection 104.31(1)(a), Florida Statutes (2003). Sheriff Fugate did not seek advice from the local Supervisor of Elections or an advisory opinion from the state Division of Elections pursuant to Subsection 106.23(2), Florida Statutes (2003), because he believed that he understood the application of the relevant statutes to his situation, including Section 104.31, Florida Statutes (2003).
Recommendation Based upon the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that the Florida Elections Commission enter a final order finding that Respondent, John J. Fugate, did not violate Subsection 104.31(1)(a), Florida Statutes (2003), as alleged, and dismissing the Order of Probable Cause. DONE AND ENTERED this 22nd day of December, 2004, 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 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 22nd day of December, 2004.
The Issue Whether Petitioner willfully violated Section 106.021(3), Florida Statutes, which prohibits a candidate from making an expenditure except through the campaign treasurer on 66 separate occasions, and, if so, what is the appropriate penalty.
Findings Of Fact Based on the testimony, documentary evidence, entire record of the proceedings, and facts admitted to in the Joint Pre-Hearing Stipulation, the following Findings of Fact are made: Petitioner, Alan Schreiber, was the incumbent candidate for Public Defender, 17th Judicial Circuit, in the 2000 election. Petitioner was unopposed for reelection when qualifying ended on July 21, 2000. Petitioner is an experienced politician serving his seventh term as Public Defender. During the 2000 campaign qualifying period, Petitioner made sixty-six expenditures for which he submitted receipts and received reimbursement from his campaign account. The expenditures for which Petitioner was reimbursed are as follows: Date Merchant Amount 05-01-00 Andrew's Tallahassee $261.00 04-04-00 Andrew's Tallahassee $225.61 12-13-99 Bar Amici/ Cathode Ray $50.40 10-29-99 Bar at Embassy Suite $51.41 06-30-00 Big Louie's $265.01 06-20-00 Big Louie's $145.72 06-27-00 Bimini Boatyard $64.82 05-31-00 Bimini Boatyard $316.49 05-21-00 Bimini Boatyard $70.08 05-18-00 Bimini Boatyard $43.26 12-08-99 Bimini Boatyard $71.66 10-20-99 Bimini Boatyard $47.92 05-04-00 Bravo Italiano $63.86 02-24-00 Bravo Italiano $232.43 02-15-00 Bravo Italiano $52.79 01-31-00 Bravo Italiano $62.86 01-27-00 Bravo Italiano $86.83 06-19-00 Café de Paris $113.34 05-24-00 Café de Paris $70.04 05-16-00 Café de Paris $154.99 05-12-00 Café de Paris $160.94 05-06-00 Café de Paris $136.11 04-13-00 Café de Paris $146.65 03-18-00 Café de Paris $113.09 03-04-00 Café de Paris $144.47 02-23-00 Café de Paris $280.10 02-07-00 Café de Paris $73.27 01-17-00 Café de Paris $193.51 12-27-99 Café de Paris $66.47 11-29-99 Café de Paris $145.60 11-26-99 Café de Paris $230.51 11-24-99 Café de Paris $133.57 11-15-99 Café de Paris $183.97 10-31-99 Café de Paris $105.68 10-22-99 Café de Paris $99.43 10-19-99 Café de Paris $130.76 03-31-00 Café de Paris $182.64 03-15-00 Costco Wholesale $140.96 12-14-99 Costco Wholesale $267.61 10-27-99 Costco Wholesale $231.02 Costco Wholesale $256.87 05-23-00 French Quarter $499.24 11-09-99 French Quarter $81.25 11-09-99 French Quarter $85.02 06-08-00 Georgio's Food and Spirits $193.14 05-11-00 Greek Islands $89.73 06-03-00 Greek Islands $75.25 01-04-00 Greek Islands $70.49 10-29-99 Heavenly Ham $349.66 03-22-00 Houston's $75.54 10-28-99 Mayhue's Liquors $70.02 06-14-00 Mezzanot $102.02 12-01-99 Padrino's Restaurant $61.21 03-17-00 Publix $235.32 12-16-99 Publix $235.32 10-29-99 Publix $212.00 Publix $149.41 05-07-00 Restaurante Botin $146.39 01-04-00 Sage $79.85 12-28-99 Sage $107.89 10-29-99 Salute-Embassy Suites $211.26 03-01-00 TGI Fridays $47.08 05-25-00 Things Remembered $79.49 05-24-00 Things Remembered $296.69 05-21-00 Things Remembered $386.22 01-03-00 Wolfgang Puck Café $138.87 While Petitioner's personal decision to "wine and dine potential donors, supporters and campaign volunteers" at upscale restaurants may have been the genesis of the complaint that caused the Commission's investigation, no evidence was offered that suggested this to be an inappropriate expenditure of campaign funds. Sixteen checks were written by the campaign treasurer from the campaign account to Petitioner to reimburse him for the above expenditures. The campaign treasurer acknowledged that he had misdated one of the sixteen checks. Each check was written on the campaign accounts, was dated, was made payable to Petitioner, and each check listed that the purpose of the expenditure was to reimburse for non- specific campaign expense(s) as follows: Date Check No. Purpose Amount 10-29-99 1003 Reimb.-Campaign party expenses 11-02-99 1004 Reimb.-misc. campaign lunches 11-16-99 1005 Reimb.-misc. campaign lunches $968.38 $536.68 $350.24 11-30-99 1006 Reimb.-misc. campaign dinners 01-06-00 1008 Reimb.-camp. party expenses $509.68 $502.93 01-07-00 1009 Reimb.-misc. camp. dinners $496.50 03-03-00 1015 Reimb.-misc. camp. dinners $566.81 04-04-00 1019 Reimb.-camp. meeting expenses $565.32 04-11-00 1020 Reimb.-camp. party exp. $376.28 04-27-00 1021 Reimb.-misc. camp. dinners $799.23 5-16-00 1023 Reimb.-misc. camp. dinners $679.69 5-18-00 1024 Reimb.- misc. camp. lunches $462.58 5-22-00 1025 Reimb.-novelty items $368.22 5-24-00 1051 Reimb.-misc. camp. lunches $612.58 5-26-16 1054 Reimb.-camp. novelty items $376.16 06-09-00 1055 Reimb.-camp. meals/lunches $386.53 Each of the above-noted reimbursements to Petitioner was listed as an expenditure on Petitioner's campaign treasurer's reports filed with the Division of Elections as follows: Date Name and Address of Purpose Amount Person Receiving Reimbursement 10-29-99 Alan H. Schreiber 855 Orchid Drive Plantation, FL 33317 Reimbursement for campaign party expenses $968.38 11-02-99 Alan H. Schreiber 855 Orchid Drive Plantation, FL 33317 Reimbursement misc. campaign lunches $536.68 11-16-99 Alan H. Schreiber 855 Orchid Drive Plantation, FL 33317 Reimbursement misc. campaign lunches $320.24 11-30-99 Alan H. Schreiber 855 Orchid Drive Plantation, FL 33317 Reimbursement misc. campaign dinners $509.68 01-06-00 Alan H. Schreiber 855 Orchid Drive Plantation, FL 33317 Reimbursement for campaign party expenses $502.93 01-07-00 Alan H. Schreiber 855 Orchid Drive Plantation, FL 33317 Reimbursement misc. campaign dinners $496.50 03-03-00 Alan H. Schreiber 855 Orchid Drive Plantation, FL 33317 Reimbursement misc. campaign dinners $566.81 04-04-00 Alan H. Schreiber 855 Orchid Drive Plantation, FL 33317 Reimbursement campaign meeting expenses $565.32 04-11-00 Alan H. Schreiber 855 Orchid Drive Plantation, FL 33317 Reimbursement for campaign party expenses $376.28 04-27-00 Alan H. Schreiber 855 Orchid Drive Plantation, FL 33317 Reimbursement misc. campaign dinners $799.23 05-16-00 Alan H. Schreiber 855 Orchid Drive Plantation, FL 33317 Reimbursement misc. campaign dinners $697.69 05-18-00 Alan H. Schreiber 855 Orchid Drive Plantation, FL 33317 Reimbursement misc. campaign lunches $462.58 05-22-00 Alan H. Schreiber 855 Orchid Drive Plantation, FL 33317 Reimbursement campaign novelty items $386.22 05-24-00 Alan H. Schreiber 855 Orchid Drive Plantation, FL 33317 Reimbursement misc. campaign lunches $612.58 05-26-00 Alan H. Schreiber 855 Orchid Drive Plantation, FL 33317 Reimbursement misc. campaign novelty dinners $376.16 06-09-00 Alan H. Schreiber 855 Orchid Drive Plantation, FL 33317 Reimbursement misc. campaign lunches $386.53 While the campaign treasurer's report accurately reports reimbursements to Petitioner, because the reimbursements are non-specific and aggregated, it is impossible to determine the actual expense for which reimbursement is made. Stephen Michaelson served as the campaign treasurer for Petitioner's 2000 reelection campaign and had served as deputy treasurer of Petitioner's 1996 campaign. Mr. Michaelson has served a number of candidates in a similar fashion. Prior to filing papers to open the 2000 reelection campaign account, Mr. Michaelson and Petitioner discussed whether it was permissible under Florida law for a candidate to be reimbursed from his campaign account for legitimate, campaign-related expenditures made by him personally in the course of the campaign. Petitioner had experienced difficulty writing campaign checks at restaurants during the 1996 campaign. After the 1996 campaign, Mr. Michaelson had researched the issue and informed Petitioner that he had discovered a "reimbursement statute." Mr. Michaelson also found a 1994 Division of Elections opinion that he believed "to be right on all fours," i.e., the opinion dealt specifically with the issue. The 1994 Division of Elections opinion [DE 94-07] referred to by Mr. Michaelson provides, in pertinent part, as follows: It is also permissible for a candidate to make a purchase with his own personal check or currency if the candidate intends to seek reimbursement from his campaign. However, the purchase does not become a campaign expenditure until such time as the reimbursement is made by campaign check or petty cash through the candidate's campaign treasurer. In 1999, prior to opening his campaign account, Petitioner and Mr. Michaelson again discussed the "reimbursement issue." Mr. Michaelson checked Chapter 106, Florida Statutes, that had been in effect when the 1994 Division of Elections opinion [DE 94-07] had been issued and noted no changes in the statute. In addition, he did a computer search on Florida Statutes Annotated of District and Supreme Court cases and found nothing dealing with the subject that, in his opinion, would warrant a change in the Division of Elections opinion. He checked the Division of Elections website to see if the 1994 opinion was still there and concluded that it was. He did a computer check to see if there were any subsequent Division of Elections opinions that referred to expenditures; finding none, he concluded that the 1994 opinion was still in effect. Based on his review, he advised Petitioner that Petitioner could seek reimbursement from the campaign account for legitimate campaign expenditures that he paid with personal funds. Mr. Michaelson has been a campaign treasurer or deputy campaign treasurer on seven occasions, has, himself, been a candidate, is a lawyer who has practiced criminal defense law for 23 years, and, during his testimony at this formal hearing, demonstrated competency and understanding of the Florida election law/campaign financing law. He gave Petitioner advice on Florida election law/campaign financing law knowing that Petitioner would rely on his advice. Petitioner's reliance on Mr. Micahelson's advice was warranted. In the same general time period during which he opened his reelection campaign account, Petitioner spoke to David Bogenschutz, an attorney in Fort Lauderdale, and asked whether a candidate could incur campaign expenses and then seek reimbursement from his campaign account. Mr. Bogenschutz is a lawyer who has known Petitioner since 1971, whose practice is devoted largely to criminal defense, who had previously advised and represented candidates and public officials in proceedings related to the Florida's election law/campaign financing law, had himself been a candidate, and was believed by Petitioner to be knowledgeable regarding Florida election law/campaign financing law. While Mr. Bogenschutz was reluctant to acknowledge that he was an "expert" in Florida election law, his testimony at this formal hearing demonstrated a satisfactory working knowledge of Florida election law/campaign financing law; it was appropriate for Petitioner to seek his counsel and to be guided by his advice. Mr. Boganschutz advised Petitioner that he saw nothing wrong with his reimbursing himself from his campaign treasury for authorized campaign expenses. He further advised that he would research the matter and advise if he saw anything wrong. Mr. Boganschutz reviewed Section 106.021(3) and Subsection 106.07(4)(a)7, Florida Statutes, and Florida Statutes Annotated. He concluded that Subsection 106.07(4)(a)7, Florida Statutes, permitted a candidate to be reimbursed for authorized campaign expenditures from the campaign account and so advised Petitioner. In giving his advise, he did not review Division of Elections Opinion DE 94-07 or a later opinion, DE 97-06, because, while other Division of Elections opinions are found in Florida Statutes Annotated, neither of the referenced opinions is listed in Florida Statutes Annotated. In addition, he felt that the statute regarding reimbursement was so clear that there was no need to do further research. In addition to his discussions with Mr. Michaelson and Mr Bogenschutz, Petitioner conducted his own research and concluded that it was appropriate to pay vendors personally for campaign-related expenses and then be reimbursed from his campaign account for those campaign-related expenses. The qualifying period ended on July 21, 2000, with Petitioner having drawn no opposition. At about the same time, a local newspaper article questioned Petitioner's campaign spending habits and quoted a Division of Elections official saying Petitioner should have been using campaign checks. After reading the newspaper article, Mr. Michaelson called the local Supervisor of Elections who advised him that Division of Elections opinion DE 94-07 had been rescinded by Division of Elections opinion DE 97-06. This caused Mr. Michaelson obvious concern; the qualifying period had ended and, for Petitioner, the election was over. It appeared that he had incorrectly advised Petitioner regarding the propriety of paying campaign-related expenses personally and then seeking reimbursement. Mr. Michaelson then checked his research in an effort to understand how he had missed the rescission of Division of Elections opinion DE 94-07 and discovered that the Division of Elections website did not indicate that opinion DE 94-07 had been rescinded. The Division of Elections, Department of State, maintains a website which includes "Formal Opinions of the Division of Elections." This website lists all opinions from 1987-2000. Intermittently throughout the list of opinions is the notation "rescinded" in highlighted type, indicating that the particular opinion has been rescinded. No such notation appeared in reference to opinion DE 94-07. The 1997 Division of Elections opinion DE 97-06 indicates "Rescinding DE 76-16, 78-2, 88-32, 90-16, and 94-7." This is presented in the same type as the rest of the text and is not highlighted. Mr. Michaelson then used his web browser to search the Division of Elections website that lists these advisory opinions for the words "expenditure" or "reimbursement," the website did not direct him to the 1997 opinion DE 97-06. Division of Elections opinion DE 97-06, which, in part, rescinds Division of Elections opinion DE 94-07, provides in pertinent part, as follows: We held that candidates could make unlimited purchases by personal check as long as they intended for such expenditures to be reported as in-kind contributions. The opinion also stated that the "candidate cannot make such purchases as a campaign expenditure except by means of a campaign check . . . made through the candidate's campaign treasurer." This reasoning has resulted in some confusion as to when and under what circumstances a campaign expenditure or in-kind contribution occurs. Therefore, we rescind DE 94-07. Except for petty cash expenditures allowed under section 106.12, Florida statutes (1995), the only way that a candidate may make a campaign expenditure is by means of bank check drawn on the primary campaign depository, pursuant to section 106.11(1), Florida Statutes (1995). Having said this, we recognize the applicability of section 106.07(4)(a)7, Florida Statutes (1995), which requires that candidates report any reimbursements of authorized expenses from the campaign accounts to themselves. We believe that the purpose of this provision is to cover rare occurrences where the campaign must make an expenditure, but the campaign check book is not available. Such a situation could occur when a bill must be paid and the campaign has not received its first order of checks from the bank, or where, during the course of campaign travel, tolls or other miscellaneous expenses must be paid in cash and the candidate has failed to take the money out of his petty cash fund for such purposes. During the 2000 campaign, Mr. Michaelson maintained possession of the campaign checkbook which was usually kept at his home. On occasion, he would have one or two campaign checks on his person. If Petitioner asked for a campaign check, and Mr. Michaelson had one on his person, he would give it to Petitioner. On occasion, Petitioner would return a campaign check to Mr. Michaelson, indicating that the check was not accepted by a particular vendor. Most of the reimbursements at issue are a result of Petitioner's not having a campaign check with him at the time of a transaction or the vendor's unwillingness to accept a check or campaign check. In most instances the transaction involved purchases by Petitioner at restaurants. TGI Friday's located in Plantation, Florida, does not accept checks. Petitioner made one campaign-related purchase at TGI Friday's for which he was reimbursed from the campaign account. Bimini Boatyard does not generally permit patrons to pay with checks, although exceptions have been made. Petitioner made six campaign related-purchases at Bimini Boatyard for which he was reimbursed from the campaign account. During his 1996 campaign, Petitioner wrote 15 checks directly to Bimini Boatyard for campaign expenditures from the campaign account. Café de Paris and French Quarter have a policy of not accepting checks except when personally approved by the owner or for a special party. The owner indicated he would not accept a campaign check. Petitioner made 20 campaign related-purchases at Café de Paris and three campaign-related purchases at French Quarter for which he was reimbursed from the campaign account. The Sage Restaurant accepts only cash, MasterCard and Visa from restaurant patrons; checks are accepted for catering. The owner opined that had Petitioner called ahead and advised that campaign laws required him to pay by campaign check, she would accept that form of payment. Petitioner made two campaign-related purchases at Sage Restaurant for which he was reimbursed from the campaign account. Bar Amici and Cathode Ray do not accept checks; however, if a candidate advised that the law required payment by campaign check, a check would be reluctantly accepted. Petitioner made one campaign-related purchase at Bar Amici and Cathode Ray for which he was reimbursed from the campaign account. Greek Island Taverna does not accept checks. Petitioner sought reimbursement for three campaign-related expenditures at Greek Island Taverna for which he was reimbursed from the campaign account. Padrino's Restaurant does not accept checks. The owner, who is seldom at the restaurant, indicated that he would accept Petitioner's check. Petitioner made one campaign-related purchase at the Padrino's Restaurant for which he was reimbursed from the campaign account. Andrew's, a Tallahassee restaurant, does not accept checks from restaurant patrons. The manager opined that, if prior arrangements were made, a campaign check might possibly be accepted, but an out-of-town campaign check made it more problematic. Petitioner made two campaign-related expenditures at Andrew's for which he was reimbursed from the campaign account. Connie Evans, Chief, Bureau of Election Records, Division of Elections, Department of State, who has been employed by Division of Elections for 22 years and a bureau chief for five years, was qualified as an expert witness "in the area of Chapter 106 of Florida Statutes," without objection. She opined that Chapter 106, Florida Statutes, requires full disclosure of all contributions and expenditures for the public benefit. Ms. Evans further opined that Division of Elections advisory opinions are only binding on the candidate or organization who sought the opinion. Ms. Evans further opined that the Division of Elections, in applying Division of Elections opinion DE 97-06, considers that it is appropriate for a candidate to seek reimbursement for personal payment of a campaign-related expense at a restaurant when the restaurant refuses to take a check, but that the candidate should not return to the same restaurant knowing that the restaurant will not accept a campaign check in payment. She acknowledged that there is no statutory authority in Chapter 106, Florida Statutes, for this opinion. Ms. Evans further acknowledged that Division of Elections opinion DE 97-06 refers to Subsection 106.07(4)(a)(7), Florida Statutes (which allows reimbursement for campaign- related expenses), and that both DE 97-06 and DE 94-07 advise that it is permissible for candidate to reimburse himself for campaign-related expenses. Ms. Evans opined that the Division of Elections website should have indicated that Division of Elections opinion DE 94-07 had been rescinded in bold type, as is done with the other rescinded opinions. Ms. Evans further opined that, if a candidate were to reimburse himself or another person for authorized campaign- related expenses, it is the position of the Division of Elections that the reimbursement must be made by a campaign check, must be reported on the campaign treasurer's report as an expenditure, and the amount, date, and the purpose of the expenditure must be reported.
Recommendation Based upon the foregoing Findings of Facts and Conclusions of Law, it is recommended that the Florida Elections Commission enter a final order finding that Petitioner, Alan Schreiber, did not violate the Florida Campaign Financing Law as alleged and dismissing the Order of Probable Cause. DONE AND ENTERED this 19th day of September, 2001, in Tallahassee, Leon County, Florida. JEFF B. CLARK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 19th day of September, 2001. COPIES FURNISHED: Mark Herron, Esquire Mark Herron, P.A. Post Office Box 1701 Tallahassee, Florida 32301-1701 Eric M. Lipman, Esquire Florida Elections Commission The Capitol, Room 2002 Tallahassee, Florida 32399-1050 Barbara M. Linthicum, Executive Director Florida Elections Commission The Capitol, Room 2002 Tallahassee, Florida 32399-1050 Patsy Rushing, Clerk Florida Elections Commission The Capitol, Room 2002 Tallahassee, Florida 32399-1050
The Issue Whether Respondent violated the provisions of Section 104.051(2), Florida Statutes (2002), by willfully neglecting to perform her duties as alleged in the 55-count Order of Probable Cause and, if so, the penalties that should be imposed.1
Findings Of Fact THE PARTIES Petitioner is created by Section 106.24, Florida Statutes, and has the authority conferred upon it by the Florida Election Code. Respondent was elected as the Broward County SOE in November 2000. She was sworn into office in January 2001. Respondent was serving as the Broward County SOE for the 2002 Primary. Respondent was suspended from office by Governor Jeb Bush in November 2003. At the time of the final hearing in this proceeding, Respondent was not working, had little equity in any asset, and owed money to her attorneys and to various credit card companies. She was borrowing money from relatives to meet monthly expenses. BCSOE OFFICE At the time of the 2002 Primary, the Broward County SOE Office (BCSOE Office) had a main office in the Broward County Governmental Center (BCGC), six regional offices, and a facility referred to as the Voting Equipment Center (VEC). Respondent had her main office in the BCGC. The VEC was essentially a warehouse at which voting equipment and supplies were stored. The six regional offices were spread throughout Broward County. At the time of the 2002 Primary, there were more that 60 full- time employees of the BCSOE Office.3 Walter Foeman served as Respondent’s Deputy SOE for the 2002 Primary. Respondent replaced the employee who had served as the Deputy SOE for Respondent’s predecessor in office. Pat Nesbit served as chief of the Poll Worker’s Department. Ms. Nesbit had the responsibility of recruiting and training poll workers. Ms. Nesbit was a veteran employee of the BCSOE Office of approximately 12 years.4 Mr. Foeman was Ms. Nesbit’s direct supervisor. Barbara Adams was the chief financial officer for the BCSOE Office. Carol Hill was a director in the BCSOE office. Petitioner attempted to establish that Respondent’s management style and her hiring practices created dissension among the employees of the BCSOE Office so that it became a matter of us (the employees from Respondent’s predecessor in office) versus them (the new employees hired by Respondent). That attitude did exist to a degree within the office and was exacerbated by staff turnover, including supervisors who had served Respondent’s predecessor in office. However, Petitioner did not prove that the negative attitude within the office was a contributing factor to the 23 precincts opening late or the 32 precincts that failed to comply with Governor Bush’s Executive Order. As will be demonstrated below, Respondent’s management style of totally relying on staff contributed to the problems with the 2002 Primary that are at issue in this proceeding. PRE-ELECTION PLANNING The 2002 Primary represented a considerable challenge for Respondent, who was relatively inexperienced. As a result of legislative and congressional redistricting, the number of precincts in Broward County went from 619 for the 2000 election to 809 for the 2002 election. For the 2002 election there were approximately 500 polling places throughout the county.5 New touch-screen voting equipment was utilized for the first time in the primary election, which required training of staff and poll workers. That training was conducted. These voting machines replaced the infamous punch card ballots that had been used in the 2000 Presidential election. For the first time provisional ballots were utilized. A provisional ballot would be issued to an individual when his or her name could not be located in the precinct register. The provisional ballot would be counted only if it was subsequently verified that the voter was in the proper precinct. While the use of provisional ballots required training for poll workers, there was no evidence that the use of provisional ballots delayed the opening of any precincts or contributed to any precinct’s failure to comply with Governor Bush’s Executive Order. Each county is divided geographically into voting precincts. Each precinct has its own poll workers, including a precinct clerk and a deputy precinct clerk. For the 2002 Primary (809 precincts and approximately 500 polling places), Respondent’s staff determined that a total of 4,941 precinct poll workers were needed to conduct the election. Poll worker recruitment and training is an essential part of conducting an election. Ms. Nesbit and her department recruited experienced poll workers using a computer data base of poll workers who had worked prior elections and recruited new poll workers at community functions and from business, educational, and governmental entities. There was insufficient evidence to establish that there were too few poll workers recruited or that the poll workers were inadequately trained. The poll workers were provided appropriate checklists and appropriate instructions as to how and when to report for duty. To prepare for the 2002 Primary, weekly staff meetings were held to assess the BCSOE Office’s readiness for the election. On the Friday before the Tuesday election, Respondent met with all the managers in the office. Based on the reports that were provided, Respondent reasonably concluded that the office was ready for the election. The VEC is responsible for putting together a box of supplies that is referred to as the “gray box.” Included in the gray box are various signs, ballots, envelopes, and other supplies that are needed by the poll workers. The VEC is also responsible for placing additional voting materials into what is referred to as the precinct’s “blue bag”. The blue bag contains materials that are essential to the opening of the poll. Among other items, the blue bag contains the poll register (which is a list of the precinct’s eligible voters), the precinct’s Personal Electronic Ballots (which are necessary to activate the precinct’s voting machines), and a checklist (which the precinct clerks are to follow to make sure that the election is properly conducted). The precinct clerk is in charge of the precinct’s polling place the day of the election, but his or her official duties begin the day before election day. The VEC is responsible for arranging delivery of the voting equipment and the gray box to each precinct at its polling place prior to election day. A trucking company was hired for this purpose for the September 2002 primary election. The precinct clerk is responsible for visiting the polling place the day prior to the election to verify that the equipment and the gray box have been delivered. In the gray box is a white form that the precinct clerk is responsible for taking to the regional office when the clerk picks up the blue bag. The precinct clerk uses the form to verify that the correct number of voting machines and all required materials in the gray box have been delivered to the precinct’s polling place. The precinct clerk also verifies that he or she will be able to open the facility on election day. The VEC is responsible for delivering all blue bags to the appropriate regional site. The precinct clerk is responsible for going to the appropriate regional site to pick up the blue bag the day before the election. The precinct clerk must empty the contents of the blue bag while at the regional center and, using a checklist, verify in front of a regional office staff person that all items that are required to be in the blue bag have been included. If all items are present, the precinct clerk and a regional center staff worker sign the checklist and the precinct clerk keeps the bag until it is time to open the polls the next morning. Any item missing from the blue bag should be secured before the precinct clerk leaves the regional office or arrangements should be made to deliver the missing item(s) to the polling place the next morning in time for the precinct clerk to open the precinct for voting by 7:00 a.m. Pick up of the blue bags for the 2002 Primary was to be between 1:00 p.m. and 4:00 p.m. for one regional center and between 9:00 a.m. and 1:00 p.m. at the other regional centers on the day before the election. The precinct clerk is responsible for opening and closing the poll and for overseeing the vote while the poll is open. The assistant precinct clerk performs the clerk’s duties if the clerk is absent or unable to perform his or her duties. The assistant clerk also answers the phone, deals with the public, and generally assists in the conduct of the election. CANCELLATIONS BY PRECINCT CLERKS On Friday, September 6, 2002, Ms. Nesbit learned that some individuals who had agreed to serve as precinct clerks had subsequently declined to serve. Ms. Nesbit made reasonable efforts to replace the precinct clerks who she knew had cancelled as of that Friday. On the day before the 2002 Primary, Ms. Nesbit and her staff spent the day talking to various poll workers about various problems. Ms. Nesbit heard during the day from more than one precinct clerk that there were long waiting lines at the regional centers (up to two hours) and that some precinct clerks had become frustrated and had left without picking up the precinct’s blue bag from the precinct’s regional site. Ms. Nesbit received no communication from any regional site that blue bags were not being picked up by precinct clerks and she did not know that those blue bags were being returned to the VEC until approximately 9:00 p.m. that evening when Damian Robinson, an employee of the BCSOE Office’s outreach department, told her that approximately 50 blue bags had been returned to the VEC because the blue bag had not been picked up at the regional site by a precinct clerk. Mr. Robinson also told her that a fax had been sent to her with a list of the precincts whose blue bag had not been picked up and a list of the precincts whose blue bag was incomplete when it was picked up. Ms. Nesbit had been working all day in an area that was not close to the fax machine and was unaware that the fax had been sent. Ms. Nesbit retrieved the fax, which was not introduced as an exhibit. Ms. Nesbit testified that there were 30 to 35 precincts listed on the fax, but she did not remember the number of precincts on each list. By midnight, there were approximately 15 blue bags at the VEC that had not been picked up. The total number of incomplete bags that had been picked up was not established and it was not established what was missing from each bag. If an essential item, such as a poll register, was missing from a blue bag, the precinct clerk could not open the precinct’s polling place for voting until someone from the BCSOE Office delivered the missing item to the precinct’s polling place. Ms. Nesbit saw Mr. Foeman and Ms. Adams shortly after she saw Mr. Robinson and read the fax. Ms. Nesbit gave the information she had received to Mr. Foeman and Ms. Adams. Ms. Nesbit proposed to Ms. Adams and Mr. Foeman that sufficient staff of the BCSOE Office be called that night and be ordered to appear at the VEC the following morning at 5:00 a.m. for the purpose of delivering each undelivered bag and missing material to the appropriate precinct. Ms. Nesbit contemplated that poll workers (other than the missing precinct clerk) would be present at the polling place and that one of those workers could substitute as the precinct clerk. Ms. Adams informed Ms. Nesbit that they were not going to call BCSOE Office employees at that time of night. As she and Mr. Foeman turned and left Ms. Nesbit, Ms. Adams said to Mr. Foeman: “We’ll take care of this.” Ms. Nesbit received no further instructions from any of her supervisors that night. Respondent returned to her home at approximately 9:00 p.m. on the day before the 2002 Primary. When she left, she knew that some precinct clerks had cancelled, but she relied totally on Ms. Nesbit and four employees under Ms. Nesbit’s supervision, to resolve the problem. Shortly after Respondent returned home, Mr. Riley informed her by telephone that approximately 15 blue bags had been returned to the VEC and that a news reporter had contacted him about the matter. Respondent’s reaction was to try to contact a fellow SOE for advice. After several calls, Respondent spoke with Gertrude Walker, an experienced SOE from St. Lucie County, Florida. After Respondent told her about the undelivered blue bags, Ms. Walker told Respondent that she had a serious problem and that she should immediately make arrangements to have staff available to deliver the blue bags to the appropriate precinct and to make sure the precinct opened on time. The telephone call between Respondent and Ms. Walker occurred around midnight on the eve of the election. Ms. Walker specifically advised Respondent to wake staff up and have them ready for action the next morning. Respondent knew about the problems with the undelivered bags for almost three hours before she talked to Ms. Walker. Why Respondent felt the need to verify with another SOE that the undelivered blue bags constituted a serious problem was not clear. Why she did not follow Ms. Walker’s advice was also not clear.6 Instead, Respondent tried to contact Mr. Foeman at his office and at his home. When she could not reach him, she left a voice message ordering him to make sure that all precincts opened on time. There was no evidence that Respondent talked to Ms. Adams or Ms. Nesbit that evening. Ms. Adams called Linda Levinson, the BCSOE Office Assistant Director of Finance and Administration, at 4:00 a.m. the morning of the 2002 Primary and ordered her to report to the VEC immediately. Ms. Adams was Ms. Levinson’s direct supervisor. As will be discussed below, Ms. Levinson helped deliver blue bags to precincts that morning. POLLS MUST OPEN AT 7:00 A.M. Section 100.011(1), Florida Statutes, regulates the opening and closing times for polls as follows: The polls shall be open at the voting places at 7:00 a.m. on the day of the election, and shall be kept open until 7:00 p.m., of the same day, and the time shall be regulated by the customary time in standard use in the county seat of the locality. Respondent knew that polls had to be open at 7:00 a.m. on the day of the election. THE EXECUTIVE ORDER On September 10, 2002, Governor Bush entered the following Executive Order Number 02-248: WHEREAS, today, September 10, 2002, is the regularly-scheduled date for the conduct of primary elections throughout the state; and WHEREAS, the Secretary of State has reported to me that there have been substantial delays in the opening of certain polling places in Broward and Miami-Dade Counties; and WHEREAS, today’s election is the first time that many election officials will have had an opportunity to implement the major technological and procedural changes mandated by the recent wholesale revision of our state’s election code; and WHEREAS, under this unique combination of circumstances, there is a possibility that certain residents of our state could be deprived of a meaningful opportunity to vote and that certain election officials will be unable to conduct an orderly election; and WHEREAS, in light of the above-described conditions and in an abundance of caution, the Secretary of State has requested that I order that polling places throughout the state remain open for an additional two hours beyond their regularly-scheduled closing times; and WHEREAS, the Secretary of State has made the request after consultation with the Attorney General of Florida, the President of the Florida State Association of Supervisors of Elections, and the chairmen of the Florida Republican and Democratic parties; NOW, THEREFORE, I JEB BUSH, as Governor of Florida, by virtue of the authority vested in me by Article IV, Section 1(a) of the Florida Constitution, by the Florida Elections Emergency Act, and by all other applicable laws, do hereby promulgate the following Executive Order, to take immediate effect: I hereby declare that, based on the above- described conditions, a state of emergency exists. In order to ensure maximum citizen participation in the electoral process and to protect the integrity of the electoral process, for today’s election all polling places in the state shall remain open for two hours beyond their regularly scheduled closing times. FACTS DEEMED ADMITTED7 A total of 24 precincts in Broward County failed to open by 7:00 a.m. on September 10, 2002. In the list that follows, the precinct number is followed by the time that morning that precinct actually opened with the exception of precinct 5K, whose opening time was unknown. The following list contains 23 precincts, with each listed in the order in which it appears as a separate count in the Petitioner’s Order of Probable Cause. In addition to the precincts listed below, Precinct 13D opened five minutes late. Precinct 13D is not included in the following list because no count in Petitioner’s Order of Probable Cause was based on the failure of that precinct to open at 7:00 a.m. Precinct 50C (8:00 a.m.) Precinct 10D (7:30 a.m.) Precinct 11D (7:30 a.m.) Precinct 5E (7:20 a.m.) Precinct 7E (8:45 a.m.) Precinct 3F (8:30 a.m.) Precinct 5K (unknown) Precinct 15K (7:30 a.m.) Precinct 9M (9:15 a.m.) Precinct 31N (7:55 a.m.) Precinct 38N (7:55 a.m.) Precinct 10R (7:30 a.m.) Precinct 18V (10:00 a.m.) Precinct 23V (8:00 a.m.) Precinct 11W (10:00 a.m.) Precinct 21X (7:15 a.m.) Precinct 22X (9:00 a.m.) Precinct 23X (7:10 a.m.) Precinct 32X (12:20 p.m.) Precinct 37X (8:30 a.m.) Precinct 62X (11:00 a.m.) Precinct 63X (8:30 a.m.) Precinct 65X (11:00 a.m.) The following 32 Broward County precincts failed to comply with Executive Order Number 02-248 by failing to remain open for two hours beyond their regularly scheduled closing time of 7:00 p.m. on September 10, 2002: 13A, 17A, 19C, 22C, 24C, 21E, 1G, 3G, 6G, 11J, 19J, 24J, 15L, 16L, 27M, 38M, 40N, 51Q, 36R, 75R, 1T, 12T, 7U, 34V, 35V, 36V, 44V, 8W, 12Y, 14Y, 7Z, and 23J. These precincts are listed in the order they appear in Counts 24-55 of the Order of Probable Cause. In addition to the foregoing, the following facts were deemed admitted based on Respondent’s failure to respond to Petitioner’s First Request for Admissions: Thirteen precincts opened late due to a lack of election supplies and the remainder opened late due to a lack of personnel. Because of delays in opening the polls in Broward and one other county on September 10, 2002, Governor Bush issued Executive Order Number 02-248 requiring all polling places in the State of Florida to remain open for an additional two hours beyond their regularly-scheduled closing time or until 9:00 p.m. The Broward County SOE Office received Governor Bush’s Executive Order at 3:41 p.m. Miriam Oliphant instructed her staff not to say anything about the Executive Order until she gave further instructions. Respondent, upon receiving the Executive Order at 3:41 p.m., assigned Rick Riley, an independent contractor hired by the SOE’s Office, the task of writing a press release to the person in charge of each precinct. Mr. Riley made the final revisions to the press release at 4:49 p.m. after Walter Foeman completed his last review. It took from 3:41 p.m. until approximately 6:15 p.m. for Miriam Oliphant’s staff and volunteers to begin notifying the [809] precincts.[8] The following problems occurred at various precincts: 19 precincts could not run a zero tape 1 precinct had incorrect time precinct had incorrect date precinct locations were unable to select [political] parties 2 precincts did not have an ADA voting unit 4 precincts did not have a cellular phone 6 precincts did not have registers 23 precinct clerks did not pick up supplies 2 precincts did not receive communication package or activation card BLUE BAG DELIVERY The scene at the VEC was chaotic on the morning of the election with no one, including Respondent, taking charge or attempting to organize the bag delivery in a rational manner. Respondent testified that she panicked that morning because she was very angry with her staff, who she believed had let her down. Shortly before 6:00 a.m., Respondent ordered Mr. Foeman to get the blue bags and other materials delivered without giving further instructions and without devising a rational plan for such delivery. Ms. Levinson delivered three blue bags and opened three precincts in the Pembroke Pines area that morning. She was not instructed where to go and got lost. Ms. Levinson opened her last precinct around noon on the day of the election. Mr. Riley was recruited to deliver blue bags. He could not testify to how many he delivered, where he delivered them, or when he delivered them. He could not testify that the precincts to which he delivered opened by 7:00 a.m. Respondent delivered blue bags that morning. She was in a van with her driver, Mike Lindsay (a representative of the Department of State, Division of Elections), Respondent’s attorney, and Jimmy Davis (an employee of BCSOE Office outreach program). Respondent’s group did not deliver the last blue bag until shortly after noon on the day of the election. There was no evidence as to whether the other three blue bags were delivered in time for the precincts to open at 7:00 a.m. Respondent’s group had difficulty locating at least one precinct. Respondent could not testify whether her group had a map or accurate driving directions to each precinct. Michelle Feinberg was a precinct clerk for a precinct in Plantation for the 2002 Primary. When Ms. Feinberg picked up her precinct’s blue bag from the regional center the day before the election she inventoried the bag and discovered that it lacked essential voting material (including the precinct register). Staff at the regional center told her that the missing material would be delivered to her precinct in time for her to timely open the poll. That voting material was not delivered to the precinct on the morning of the election in time for the precinct to open by 7:00 a.m. The poll opened approximately 30 minutes late because the voting materials were not delivered on time. There was insufficient evidence to identify the other employees who delivered blue bags and other materials to the various precincts. Respondent knew shortly after 9:00 p.m. on September 9, 2002, that approximately 15 blue bags had not been picked up by the precinct clerk. She knew that the precinct could not open without the blue bag. She also should have suspected that each precinct clerk who failed to pick up the precinct’s blue bag would likely not show up for duty the next day. Respondent knew that she was mandated by statute to open all precincts for voting at 7:00 a.m. the next day. After learning of the problem with the blue bags, Respondent failed to take reasonable action either the evening before the election or the morning of the election to ensure that each blue bag and other required voting material would be delivered to the appropriate precinct. Likewise, she failed to take reasonable action either the evening before the election or the morning of the election to ensure that the precincts whose clerk had not picked up the precinct’s blue bag the day prior to the election would be staffed with a precinct clerk. FAILURE TO COMPLY WITH THE EXECUTIVE ORDER The BCSOE Office received Governor Bush’s Executive Order 02-248 at 3:41 p.m. on the day of the election. Respondent immediately instructed Mr. Riley to prepare a memorandum to the poll workers pertaining to the extended hours for the polls and basic instructions on how to close the polls. Respondent further instructed her staff not to call precincts until they had the memorandum. Mr. Riley made the last revision of the memorandum at 4:49 p.m. It was not until 6:04 p.m. that Respondent gave the memorandum to Ms. Nesbit and instructed her and assigned staff to read the memorandum to each precinct clerk. The following is the memorandum (Memorandum): Due to delays in the opening of certain polls, voting for the September 10, 2002, primary election has been extended by Governor Jeb Bush, for all polling locations throughout the State of Florida (pursuant to Executive Order 02-248), for an additional two hours beyond their regularly-scheduled closing time, from 7 pm till 9 pm. After 7 pm the following voting procedures will be in effect. When the Personal Electronic Ballots (PEB) is [sic] inserted, the herein below listed questions will appear: Close menu options, follow the sequence below. Close terminal Lock terminal Press no For each voter after 7 pm, and until 9 pm the poll worker that is activating the ballot shall press the box designated for no, and the ballot page will appear. Please due (sic) not press the close terminal until 9 pm. All terminals should be closed using the green master Personal Electronic Ballot (PEB) at 9 pm. Carol Hill and her staff were responsible for copying the Memorandum and for dividing the precincts into call lists. Each participating staff member was given a copy of the Memorandum and a list of precincts with telephone numbers to call. It took approximately ten minutes for Carol Hill’s staff to copy the memorandum and to make the calling assignments. Errors were made while making the calling assignments. Some of the precincts were on the calling lists more than once while other precincts were omitted. As a result, some precincts received two calls from staff while others received none. After approving the contents of the Memorandum, Respondent had no further involvement with advising the 809 precincts that the Governor had extended the voting day by two hours. Respondent did not participate in the actual calling of the precincts or in making the call assignments. Respondent testified that she did not know that some polls had closed at 7:00 p.m. until the next day. There was no rational explanation for the time that elapsed from the time the BCSOE Office received the Executive Order (3:41 p.m.) until the time staff began contacting poll workers (6:15 p.m.). Respondent knew that she was responsible for ensuring that all precincts complied with the Executive Order. Respondent abdicated that responsibility to her staff without providing any oversight. Petitioner established that some of the 32 precincts that failed to comply with the Executive Order did so because the precinct clerk was not notified of the Executive Order, despite having an operable telephone.
Recommendation Based on the foregoing findings of fact and conclusions of Law, it is RECOMMENDED that Petitioner enter a Final Order that finds Respondent guilty of two violations of Section 104.051(2), Florida Statutes, and imposes against her an administrative fine in the total amount of $2,000.00. DONE AND ENTERED this 29th day of August, 2005, in Tallahassee, Leon County, Florida. S CLAUDE B. ARRINGTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 29th day of August, 2005.
The Issue The issue for consideration in this case is whether Respondent, Katherine Harris, violated the provisions of Section 106.08, Florida Statutes, by making payments of organizational dues from her campaign account prior to the 1998 election.
Findings Of Fact As to the Merits: At all times pertinent to the issues herein the Commission was the state agency responsible for the oversight of public elections in this state. Respondent was a candidate for public office whose activities were subject to scrutiny by the Commission. The Division of Elections (Division) was a branch of the office of the Secretary of State. Respondent initially notified the Division on June 8, 1997 that she was seeking re-election to the Florida Senate seat she then held. However, on November 19, 1997, she filed the appropriate forms with the Division to signify her candidacy for the office of Florida Secretary of State. At or near each filing, Respondent filed with the Division a "Statement of Candidate" in which she stated she had received, read, and understood the requirements of Section 106, Florida Statutes. From April 1997, through mid-March 1998, 21 separate checks were written by her campaign treasurer on Respondent's campaign account with the Barnett Bank for dues payments to organizations. This is the issue here. The organizations to which the checks were written are organizations established for the public good. The checks in issue are as follows: CH # DATE PAYEE AMT 0101 04/03/97 Charlotte County 9.00 Republican Club 0102 04/03/97 Peace River Federated 5.00 Republican Women 0103 04/03/97 Manasota Republican 11.00 Women's Club Fed. 0104 04/03/97 Venice-Nokomis Fed. 11.00 Women's Club 0105 04/03/97 Sarasota Bay Republican 5.00 Women's Club 0106 04/03/97 West Charlotte 5.00 Republican Club 0108 06/05/97 Bernice Furrow 25.00 0109 07/03/97 Venice Area C of C 50.00 0110 08/06/97 Charlotte County C of C 65.00 0111 08/11/97 Republican Women's Club 10.00 of Sarasota 0112 09/04/97 Sarasota Bay Republican 15.00 Women's Club 0114 10/29/97 Taxpayer's Association of Sarasota County 12.00 0120 11/30/97 Sarasota Republican Club 15.00 0162 02/11/98 Mid-County Republican 15.00 0163 02/11/98 Club Venice-Nokomis Federated 7.50 0164 02/11/98 Republican Club West County Republican 5.00 0165 02/11/98 Club Siesta Key Republican 6.00 0189 03/03/98 Club Sarasota County Young 30.00 0199 03/09/98 Republicans Republican Women's Club 10.00 of Sarasota 0204 03/16/98 Republican Women's Club 15.00 0206 03/16/98 of Lakeland Federate Manasota Republican 10.00 Women's Club Federate All of the checks except number 0108 were for dues to the organization shown, and totaled $325.00. Check number 0108, in the amount of $25.00, was made to Bernice Furrow, and the memo space on the instrument indicates it was issued in reimbursement of dues to the Peace River Forum. These checks were written at the direction of Respondent. Clifford M. King, the maker of the checks in question, is an attorney admitted to practice in Florida in 1988. He served as campaign treasurer for Respondent during her successful campaign for the Florida Senate in 1994, and was her attorney and campaign treasurer during her campaign for Secretary of State. His major areas of practice include business transactions, estate planning, and probate. He has not worked for any other candidate nor has he ever been employed by any other client to give advice on elections law. Nonetheless, he considered himself to be qualified to advise Respondent on the Florida Election Code during her campaigns. It is so found. To prepare for giving that advice, Mr. King reviewed the Florida Statutes pertinent to elections and the campaign handbook prepared and issued by the Division of Elections. However, he did not read any opinions issued by the Division or opinions of the Attorney General dealing with elections law. When issues arose with which he did not feel comfortable, he would seek the advice of the Division of Elections. Mr. King cannot recall whether it was Respondent or one of her campaign workers who asked him if it were permissible to spend campaign funds for dues, but he is sure the question was asked. In response, he advised that to do so was a permissible expenditure of the campaign. Mr. King recalls that this same issue arose during the 1994 campaign at which time, based on his research of the statutes and the Division's campaign handbook, and after consultation with individuals involved in other campaigns, he concluded that expenditures for dues were permissible and he so advised Respondent. Though Mr. King recalls having discussed with Respondent the issue of the permissibility of writing these checks, he did not advise her of the specific provisions of the elections statute in issue here. He was satisfied at the time he advised Respondent and wrote the checks in issue, that it was lawful and permissible to do so. The Division's investigator, Mr. Smith, contacted representatives of most, if not all of the organizations to whom the checks in issue were written. All checks except the one to Ms. Furrow, were in payment of membership dues paid by all members. Mr. Young could find no instance where a specific benefit accrued to Respondent as a result of her payment of dues which was not received by every other member of the organization, candidate for public office or not. It is so found. As to the Motion for fees: After the Order of Probable Cause involving Respondent was served on Respondent, she requested a formal hearing. This hearing was initially denied by the Commission on the grounds that Respondent had failed to identify issues of fact requiring formal hearing. However, this decision was subsequently reversed and the matter was referred for formal hearing before the Division of Administrative Hearings. While the discovery process was being carried out, it became known that Respondent had twice been advised by Mr. King, her attorney, that the donations/dues payments from campaign funds in issue were permissible expenditures. When this information became known to the Commission's counsel, counsel prepared a Motion to Dismiss the Order of Probable Cause and recommended that action to the Commission. The basis for the recommendation was a lack of evidence to demonstrate that Respondent's actions were willfully illegal. Notwithstanding its counsel's advice, the Commission determined to proceed with the action on the basis that a majority of the Commissioners considered Respondent's counsel/campaign treasurer, the individual who had given the advice to Respondent, a "straw man" whose testimony by deposition was for the sole purpose of exonerating Respondent. That conclusion is not supported by the evidence of record, however.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Florida Elections Commission enter a final order dismissing its Order of Probable Cause in this matter. An award of attorney's fees and costs to Respondent is unwarranted and rejected. DONE AND ENTERED this 30th day of October, 2000, in Tallahassee, Leon County, Florida. ARNOLD H. POLLOCK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6947 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of October, 2000. COPIES FURNISHED: Phyllis Hampton, Esquire David F. Chester, Esquire Florida Elections Commission The Capitol, Room 2002 Tallahassee, Florida 32399-1050 Richard E. Coates, Esquire Christopher B. Lunny, Esquire Katz, Kutter, Alderman, Bryant & Yon, P.A. 106 East College Avenue Post Office Box 1877 Tallahassee, Florida 32302-1877 Barbara M. Linthicum, Executive Director Florida Elections Commission The Capitol, Room 2002 Tallahassee, Florida 32399-1050 Steven K. Christensen, Clerk Florida Elections Commission The Capitol, Room 2002 Tallahassee, Florida 32399-1050
The Issue 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 Whether the Respondent violated Section 106.09(1), Florida Statutes, by accepting four cash contributions in excess of the legal limit.
Findings Of Fact 1. Respondent was a candidate for the Orlando City Commission, District 5, in the March 2010 election. 2. On July 13, 2009, Respondent filed his 2009 Q2 campaign treasurer’s report covering the period of April 1, 2009, through June 30, 2009. Respondent certified that the report was true, correct, and complete. Respondent’s report listed four $100 cash contributions received on May 15, 2009.' The four cash contributions were from Virginia Howell, Enrique Howell, Judith White, and Sam Cahman. 3. On July 20, 2009, Alana Brenner, the Orlando City Clerk, sent Respondent a letter notifying him that she discovered what appeared to be several items on his 2009 Q2 report which may be election law violations. Ms. Brenner listed the four excessive cash contributions as possible violations. . 4. On the bottom of page 23 of the June 2008 Candidate’s Handbook (Handbook), it states in bold letters that effective January 1, 2008, the maximum contribution a person can accept in cash or by means of a cashier’s check is $50. 5. Respondent testified in his November 5, 2009, affidavit that he possessed and had read the Handbook. | 6. On August 29, 2009, Respondent sent the Commission’s investigator, Cedric Oliver, a letter that stated: In response to Commission Daisy Lynum’s complaint to the election office in regards to the acceptance of four cash contribution[s] of $100.00, the Vibert White Campaign committee has taken steps to reverse this benign and small error. Due to our mistake in following the guidelines of an older election manuscript that allows for $100.00 cash gifts we failed to consult the newer " Respondent mislabeled the 2009 Q2 report as a G1 report. Faa004 (7/09) instructional guide that allows for only $50.00 cash offerings. Thus, we are sending the contributions back to the donors. 7. Despite Respondent’s promise to send back the excessive cash contributions, there was no record of the cash being returned to the contributors. 8. On October 12, 2009, after the complaint was filed in this case, Respondent filed an amended 2009 Q2 campaign report. Respondent certified the report was true, correct, and complete. On the report, Respondent changed the four May 15, 2009, $100 cash contributions to four August 11, 2009, $100 check contributions. 9. There was no record of the four checks being deposited in Respondent’s campaign bank account. 10. Respondent’s conduct was willful. Respondent accepted the four excessive cash contributions while showing reckless disregard for whether he was prohibited from accepting cash contributions in excess of $50.
Conclusions For Commission Eric M. Lipman General Counsel 107 W. Gaines Street Collins Building, Suite 224 Tallahassee, FL 32399 For Respondent Frederic O’Neal - PO Box 842 Windermere, FL 34786
Appeal For This Case This order is final agency action. Any party who is adversely affected by this order has the right to seek judicial review pursuant to Section 120.68, Florida Statutes, by filing a notice of administrative appeal pursuant to Rule 9.110, Florida Rules of Appellate Procedure, with the Clerk of the Florida Elections Commission at 107 West Gaines Street, Suite 224, Collins Building, Tallahassee, Florida 32399-1050, and by filing a copy of the notice of appeal with the appropriate district court of appeal. The party must attach to the notice of appeal a copy of this order and include with the notice of appeal filed with the district court of appeal the applicable filing fees. The notice of administrative appeal must be filed within 30 days of the date of this order is filed with the Commission. ‘The date this order was filed appears in the upper right-hand corer of the first page of the order. Copies furnished to: Eric M. Lipman, General Counsel Vibert White, Respondent (certified mail) Frederic O’Neal, Attorney for Respondent (certified mail) Daisy W. Lynum, Complainant Florida Division of Elections, Filing Officer Faa004 (7/09) ae
The Issue Whether Petitioner is entitled to recover attorney's fees and costs against Respondent and, if so, in what amount.
Findings Of Fact Petitioner, Eileen McGuire (Petitioner), is now and at all times material to this proceeding has been a member of the Town Council (Town Council or Council) of the Town of Welaka, Florida (Town or Town of Welaka). Petitioner was appointed to the Town Council in 1994, ran for election in 1995, and has continued on the Council since that time. Currently, Petitioner is president of the Town Council. Respondent, Caron Speas (Respondent), is and has been a resident of the Town of Welaka for two years. Respondent, who has practiced law since 1981, considers herself a "watchdog" of the actions of the Town's local government. She is chair of and has been active in a local "political committee" known as Concerned Citizens for Public Integrity, Inc. Respondent's brother, Rand Speas, is also a resident of the Town of Welaka. During January to March 1999, Mr. Speas was running for a position on the Town Council. Rand Speas lost his election campaign on March 3, 1999. During Mr. Speas' unsuccessfu1 1999 election campaign, Gordon Sands was the Mayor of Welaka and Petitioner was a member of the Town Council. Petitioner was not running for re-election in 1999, but she supported Mayor Sands who was running for re- election at that time. Respondent was opposed to Mayor Sands' re-election bid and had actively opposed many of the official actions taken by both Petitioner and Mayor Sands. Moreover, Respondent had expressed her dislike and dissatisfaction with the manner in which the Town of Welaka was governed and her opposition to the administration of Petitioner and Mayor Sands. During the 1999 election campaign, Petitioner received complaints from the code enforcement officer of the Town of Welaka regarding political signs that were on Town property. At the time Petitioner received the complaints, she also served as maintenance supervisor, having been appointed to that position by the Town Council. As maintenance supervisor, Petitioner was responsible for directing the day-to-day activities of Town employees, Charles Henderson and Charlie Yarbrough. Henderson was the wastewater treatment caretaker for the Town and Yarbrough was the Town's maintenance man. Soon after Petitioner received the complaints from the Town's code enforcement officer, she met Henderson and Yarbrough at Town Hall one morning when they reported for work. Petitioner gave Henderson and Yarbrough copies of the Town's applicable sign ordinance (ordinance). The ordinance prohibited the placement of signs in the Town's rights-of-way and on utility poles. Consistent with the provisions of the ordinance, Petitioner instructed Henderson and Yarbrough to remove non- conforming political signs from public rights-of-way. Moreover, Petitioner stressed that enforcement of the ordinance should apply to the signs of all candidates, including those of the mayor. Henderson and Yarbrough complied with McGuire's instructions concerning the removal of illegally placed political signs. The men drove around the Town of Welaka in a Town vehicle and began removing signs which they perceived to be in the public rights-of-way and those which were on utility poles. After Henderson and Yarbrough removed the signs, they placed them in the Town vehicle. Some of the signs retrieved by Henderson and Yarbrough were placed in the Town's maintenance yard. Respondent observed Henderson and Yarbrough as they were removing Rand Speas' political signs from what she perceived to be private property. Respondent became very upset and immediately proceeded to her brother's, Mr. Speas', place of business. Once there, Respondent told Mr. Speas that she had observed the Town employees remove his political signs and those of Virgil Posetti, a political opponent of Mayor Gordon Sands. Mr. Speas and Respondent then got in her car, located Henderson and Yarbrough who were still driving the Town vehicle and removing political signs, and began following them. Based on Respondent's observation, she believed that Henderson and Yarbrough were "stealing" political signs. Respondent eventually flagged down Henderson and Yarbrough and asked what they were doing. Henderson explained that they were taking down signs that were in the Town's rights- of-way. Because Respondent was not satisfied with Henderson's explanation, he told her to follow them to Petitioner's house. Respondent and Mr. Speas then followed Henderson and Yarbrough to McGuire's home (also her place of business, a beauty shop). When Henderson, Yarbrough, Mr. Speas, and Respondent arrived at Petitioner's house and place of business, Petitioner went outside to see what they wanted. By this time, Respondent was visibly angry and upset. Respondent began yelling and screaming at Petitioner and threatened to have the her arrested by the "federal marshal." Initially, Petitioner did not know why Respondent was so upset; however, after Petitioner understood Respondent's complaint, she gave Respondent a copy of the Town's political sign ordinance and explained that Rand Speas' political signs should not have been put in the Town's rights-of-way. Petitioner also talked to Rand Speas and gave him the same explanation. After Petitioner's explanation, she allowed Respondent and Mr. Speas to retrieve Rand Speas' signs from the trunk of the Town vehicle and from the Town's maintenance yard. However, Petitioner warned Respondent and her brother that if any of Mr. Speas' signs were found in the Town's rights-of-way, the signs would be removed again. When Respondent and Rand Speas retrieved the political signs of Mr. Speas, the only signs that they saw were those belonging to Mr. Speas and those of Virgil Posetti, the political opponent of Mayor Gordon Sands. Petitioner never indicated to Rand Speas or Respondent that she had told Henderson and Yarbrough to remove anything other than signs that were in the Town's rights-of-way or on utility poles. Moreover, the credible testimony of Rand Speas was that Henderson and Yarbrough told him that their instructions from Petitioner were only to remove signs that were in the way of traffic or placed illegally. Notwithstanding the explanation of Petitioner and that of the Town employees, Respondent remained convinced that Petitioner had instructed Henderson and Yarbrough to remove only the political signs of Rand Speas and Virgil Posetti. Respondent based her belief on her own observations. First, when Respondent observed Henderson and Yarbrough, they were removing only the political signs of Rand Speas and Posetti. Second, when Respondent and her brother were retrieving the political signs of Rand Speas, the only signs she saw in the trunk of the Town vehicle and at the Town storage yard were those of Rand Speas and Posetti. At some point after Henderson and Yarbrough removed the political signs, Rand Speas filed a complaint concerning the incident with the State Attorney's Office. After an investigation and/or review of the matter, the State Attorney's Office advised Mr. Speas that it would take no action on the complaint. Enclosed in the correspondence from the State Attorney's Office to Mr. Speas, advising him of its decision, was an Ethics Complaint form. Mr. Speas gave the Ethics Complaint form to Respondent. Several weeks after the incident involving removal of political signs and approximately two weeks after the 1999 election, Respondent signed an Ethics Commission Complaint (Complaint) against Petitioner on March 18, 1999. In the Complaint made against Petitioner, Respondent stated in pertinent part as follows: Eileen McGuire is a member of the town council for the Town of Welaka and a political supporter of the Mayor, Gordon Sands. Ms. McGuire used her position as town council member to obtain political benefit for the re-election efforts of Mayor Sands by directing two employees of the town to remove the political signs of Mayor Sands' political opponents in violation of Florida Statute 112.313(6). The statute cited by Respondent and the facts alleged in support of the charge made comprise a specific accusation by Respondent that Petitioner, a public officer of the Town of Welaka, corruptly used her official position to secure a special privilege or benefit for Mayor Sands by directing two employees of the Town to remove the political signs of the Mayor's political opponents. At the time Respondent completed and filed the Complaint, she knew that the Town of Welaka had an ordinance prohibiting the posting of political signs on public rights-of-way. Moreover, on the day of the incident, Petitioner explained to Respondent that she had directed the Town employees to take down all signs in the rights-of-way. However, Respondent did not believe Petitioner. Instead, Respondent believed that Petitioner had "ordered town employees to go around and take political signs of the opponent of Mayor Sands", and that the Town employees "were stealing [signs] from private property." Respondent's observations, standing alone, do not support her conclusion that Petitioner directed Town employees to "steal" the signs of Rand Speas and Virgil Posetti. However, the allegations set forth in the Complaint were based on Respondent's observations and perceptions and the inferences drawn therefrom. Notwithstanding Respondent's beliefs to the contrary, the evidence supports the conclusion that Petitioner instructed Henderson and Yarbrough to remove any and all signs that were illegally placed in the Town's rights-of-way. Henderson testified credibly that on the day of the alleged ethical violation, Petitioner gave him a copy of the Town ordinance prohibiting political signs in public rights-of-way and instructed him to remove all nonconforming political signs that were on public rights-of-way without preferential treatment for any candidate. Yarbrough corroborated the testimony of Henderson and confirmed that Petitioner's instructions to enforce the political sign ordinance of the Town of Welaka were non-preferential and included instructions to remove any offending signs of Mayor Sands as well. In defending herself against the allegations in the Complaint and in this proceeding, Petitioner has been represented by Allen C. D. Scott, II, Esquire. Mr. Scott's hourly rate is $125.00. Prior to the final hearing, Mr. Scott expended forty- three hours on this matter and a related case, Sands v. Speas, DOAH Case No. 00-0268FE. One-half of that time is attributable to the instant case. The hourly rate of $125.00 billed by Mr. Scott is reasonable. Likewise, the pretrial time of 21.80 hours expended in this matter is reasonable. Accordingly, the attorney fees of $2,725.00 incurred is reasonable. Judith Ginn, Esquire, an attorney who has practiced law in the state of Florida since 1974, testified as an expert witness in this case. Ms. Ginn's hourly rate of $150.00 is reasonable. The reasonable cost of Ms. Ginn's expert witness services in this case is $650.00.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby: RECOMMENDED that a Final Order be entered finding that Respondent, Caron Speas, is not liable for attorney's fees and costs and dismissing the Petition for Costs and Attorney's Fees. DONE AND ENTERED this 24th day of August, 2000, in Tallahassee, Leon County, Florida. CAROLYN S. HOLIFIELD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 24th day of August, 2000. COPIES FURNISHED: Allen C. D. Scott, II, Esquire Scott & Scott 101 Orange Street St. Augustine, Florida 32084 Peter Ticktin, Esquire Scholl, Ticktin, Rosenberg, Glatter & Litz, P.A. Net First Plaza 5295 Town Center Road, Third Floor Boca Raton, Florida 33486-1080 Sheri L. Gerety, Complaint Coordinator and Clerk Commission on Ethics 2822 Remington Green Circle, Suite 101 Post Office Drawer 15709 Tallahassee, Florida 32317-5709 Bonnie J. Williams, Executive Director Commission on Ethics 2822 Remington Green Circle, Suite 101 Post Office Drawer 15709 Tallahassee, Florida 32317-5709 Philip C. Claypool, General Counsel Commission on Ethics 2822 Remington Green Circle, Suite 101 Post Office Drawer 15709 Tallahassee, Florida 32317-5709
The Issue The issues for determination are whether Respondent, Frank Moore, violated section 112.313(6), Florida Statutes (2008), by misusing his position and/or resources within his trust to help Lonnie Evans in his 2008 re-election campaign for Mayor of Coleman; whether Respondent violated section 112.313(6) by engaging in a traffic stop of Timothy Brunson to discuss a pending ethics complaint; and if either or both violations are proven, what penalties should be imposed?
Findings Of Fact Frank Moore was an officer with the City of Coleman Police Department prior to Lonnie Evans' first election as Mayor, and became the Coleman Chief of Police at some point after Evans' first election as mayor. Chief Moore retired in 2010, but remains employed by the City of Coleman as a reserve officer. Lonnie Evans served as mayor of the City of Coleman for twelve years. Prior to his service as mayor, he was on the City Council for 24 years. Respondents Moore and Evans were, at all times relevant to this proceeding, subject to the requirements of chapter 112, part III, Florida Statutes, otherwise known as the Code of Ethics for public officers and employees. Lonnie Evans ran for re-election as mayor in 2008, and was defeated by Eve Carruthers. The election was held on December 8, 2008. Coleman is a small town in Sumter County, Florida, with approximately 600 residents and 200 registered voters. Because of the size of the community and the nature of their jobs, Frank Moore and Lonnie Evans know each other fairly well, and are, in turn, well-known in the community. At the time relevant to this case, the police department in the City of Coleman consisted of three officers: the police chief, one additional full-time patrol officer, and one reserve officer. During at least part of the time relevant to these proceedings, the full-time patrol officer was James Dingle. Mr. Dingle was hired in December of 2007. He was interviewed by Chief Moore and Mayor Evans, and Mayor Evans hired him on a conditional basis until his employment could be approved by the City Council, consistent with the town's charter. Mr. Dingle was on probationary status for the first year of his employment. In October 2008, Frank Moore and Lonnie Evans determined that his probation should be extended, and in December 2008, his employment was terminated by vote of the City Council. At the heart of Mr. Dingle's termination was his handling of traffic tickets and refusal to change the manner in which he handled them, after counseling by Chief Moore, and his unwillingness to follow orders given to him by his superiors. Mr. Dingle would routinely write tickets indicating that the offending driver was going less than his or her actual speed. The actual speed would be listed under "comments," whereas the speed Mr. Dingle fabricated would be listed on the ticket as the speed the offender was driving. Mr. Dingle felt it was a matter of officer discretion, and that it was "unethical" not to give drivers a break. Frank Moore, on the other hand, directed Mr. Dingle to use the actual speed when writing tickets, leaving the discretion up to the judge. After counseling by Chief Moore, Mr. Dingle continued to write tickets for the lower speed. Because he felt Chief Moore's direction to use the actual speed was unethical, he did not feel he needed to follow it. On July 24, 2009, some seven months after Mr. Dingle was fired and eight months after the mayoral election, the Florida Commission on Ethics received a complaint by Mr. Dingle against Frank Moore, alleging that Moore was campaigning for Lonnie Evans while on duty (COE Case No. 09-100). No corresponding complaint was received from Mr. Dingle with respect to Mr. Evans. Specifically, the complaint stated: On November 18, 2008, at or about 9:00 A.M. Chief Frank Moore failed to show for traffic court which he was subpoena to appear. . . . After I (James Dingle) completed traffic court, I went to the Coleman Police Department and observed Frank Moore and the current mayor Lonnie G. Evans inside the Chief's office with several copies of campaign (flyers) laying on his desk, I also observed a voters list of the residence of Coleman who were registered to vote in the city election and phone numbers. On two separate occasions, when I walked into the police station I overheard the Mayor talking to an unknown person asking them to vote for him. Note: that the Mayor Evans and Chief Moore were inside the City of Coleman Police Station and using the City office supplies for Mayor Evens' campaign. On one occasion I observed the Mayor hang the phone up in the middle of his conversation when I walked back into Chief Moore's office. Since Chief Moore is hard of hearing, I heard Chief Moore say to Mayor Evans "who else we can call." Note: that Chief Moore was on full uniform and on duty. I made contact with two of Coleman residences who advised me that Chief Moore was driving the Mayor around in the City's vehicle asking residences to vote for him. The following residences are willing to speak to any investigator in this matter: (1) Lucy Burnette . . . . (2) Ronnie Owens . . . At hearing, Mr. Dingle acknowledged that he had no personal knowledge regarding the allegation that Chief Moore and Mayor Evans were campaigning in a city-owned vehicle, and had never witnessed them doing so. Mr. Dingle's Coleman Police Department Daily Activity/Log Report for November 18, 2008, indicates that Mr. Dingle started his work shift at 12:30 p.m. and was in traffic court from 1:00 to 2:00 p.m. He claimed that he had stated the wrong time for the events because there were other days that week where he had appeared in traffic court in the morning. The time records do not support this statement. Mr. Dingle testified that on November 18, 2008, he entered the police station three times. The first time, he did not observe or hear anything unusual. The second time he entered, however, he claims that he heard Mayor Evans tell Chief Moore to "hush" or "be quiet." He also testified that he saw campaign flyers, envelopes and stamps on Chief Moore's desk. In addition, he saw a list that he believed to be a voter registration list on the desk. The third time he entered the police station, Mr. Dingle stated that he heard Chief Moore ask Mayor Evans "who else can you call to help him." He also claimed that the mayor again told the chief to be quiet because someone else was in the building. Contrary to his written complaint, Mr. Dingle did not testify that he saw Mayor Evans use the police station telephone and did not testify that he heard anyone asking for a vote. Mayor Evans owns and uses a cell phone. There is no clear and convincing evidence that any conversation that Mr. Dingle overheard took place using a city telephone. Mr. Evans' testimony that he did not use a city phone to campaign is credible and accepted. The door of the police station locks when it is shut, and must be opened either with a key from the outside, or by someone opening it from the inside. In addition, there is a pass-through window in Chief Moore's office through which he can observe people coming in and out of the police station. While Chief Moore is hard of hearing, he is not deaf, and he would have been able to see and hear people entering the building. His testimony that Evans at no time asked him to be quiet is credited. Moreover, overhearing the comment "who else can you call" and concluding that the comment was campaign-related requires a leap that the undersigned is unwilling to take. There are a variety of city-related tasks and events that could require the mayor and the chief of police to work together that have nothing to do with campaigning for office. This comment, standing alone or in connection with the other observations Mr. Dingle recounted, is not clear and convincing evidence of campaigning using city resources or during work hours. At some point, Mr. Dingle saw fit to remove a page from the typewritten list, along with a campaign flyer, from his supervisor's desk, presumably after Chief Moore left for the day. He did so at after his probation had been extended by Evans and Moore, and after he had received one if not two memos criticizing his performance. The list consists of a list of names and the designation "Coleman" under a column titled "City_Name." There is no title or heading on the document. There are no addresses, telephone numbers, or voter registration numbers on the list. There is no clear and convincing evidence indicating the nature of the list or whether it actually depicted registered voters.1/ Moreover, even if Mr. Dingle's testimony is credited, the presence of campaign flyers in the police station, standing alone, is not clear and convincing evidence of using city resources to campaign. The flyer was the same type of flyer posted in places all over town. Mrs. Moore testified that she had volunteered to stuff envelopes and print flyers for Mr. Evans, and did so at home over a period of several days. Mayor Evans supplied the stamps and envelopes. She then gave the envelopes and a box of flyers to her husband so that he could deliver the flyers to Mr. Evans and mail the envelopes from the post office adjacent to the police station. The Advocate offered no evidence to rebut this testimony. Moreover, as confirmed by the city clerk, the computer and printer in Chief Moore's office did not belong to the City of Coleman, but instead belonged to Chief Moore. Based on the totality of the evidence presented, clear and convincing evidence did not establish that Chief Moore and Lonnie Evans were engaged in campaign activities in the police station on November 18, 2008. On December 9, 2009, an Order Finding Probable Cause in COE Case No. 09-100, which forms the basis for DOAH Case No. 10- 1284, was filed by the Commission on Ethics. The finding was reported in a local newspaper in January of 2010. Cynthia Martin, a City of Coleman Council member, showed the newspaper article to Timothy Bronson. Ms. Martin had run against Lonnie Evans in a previous election for mayor, and lost. As a result of Ms. Martin's encouragement, both Timothy Bronson and his mother, Gloria Bronson, filed complaints with the Commission against Chief Moore on January 22, 2010, nearly fourteen months after the last election in which Mr. Evans was a candidate (COE Complaint No. 10-016). Both complaints stated that the mayor and the chief of police had, for each election, come to their house and asked them to vote for Mayor Evans. Both indicated that Chief Moore had stated that if Evans was not elected, then he would lose his job. The mayor of Coleman does not have the authority to hire or fire the police chief. Only the city council can take that action. Frank Moore continued to serve as police chief for the City of Coleman for well over a year after the election, until sometime in 2010, when he retired. Cynthia Martin visited the Bronson's in their home and brought a notary with her so that the Bronsons could complete the complaints against Moore and Evans. The Bronsons claimed that Chief Moore would drive by their home and pull into their driveway. They would come out to the fence and speak to him. From their position on the other side of the fence from the car, they claimed that they could see campaign signs for Lonnie Evans in the back floorboard of the patrol car. Timothy Bronson also testified that on one occasion, Lonnie Evans was in the patrol car with Chief Moore, and asked his mother to vote for him. Mrs. Bronson did not testify to any such request by Lonnie Evans, and testified that when Frank Moore came to the house, Lonnie Evans was not with him. Timothy claimed in his taped interview that Chief Moore was driving a white unmarked car, but at hearing insisted that the car Chief Moore drove on these occasions was gray. Mrs. Bronson, testified that the car was either white or "brownish." Chief Moore acknowledges that he sometimes drove by the Bronson home, usually in response to a complaint by Mrs. Bronson, such as people speeding on her street. He agrees that he sometimes stopped and spoke to her and her son, but denies talking about the mayoral race. He also flatly denies ever having Lonnie Evans in his patrol car at the Bronson home. The patrol cars have dark tinted windows in the back, and the view is obstructed by both the tint and the barrier separating the front and back seats. It is unlikely that either of the Bronsons would be able to see signs in the floorboard of the backseat from a location on the other side of the fence from the car. Mrs. Bronson admitted at hearing that she suffers from short term memory loss as a result of a medical event. Timothy Bronson filed a second complaint alleging the same thing on March 3, 2010, against Lonnie Evans (COE Case No. 10-043). He and his mother also filed amendments to their first complaint on March 17, 2010. Timothy Bronson alleged that Respondent pulled him over in order to talk to him about his complaint. Mrs. Bronson claimed that he followed her closely for a mile or so, and it intimidated her.2/ Clear and convincing evidence did not support Timothy Bronson's allegation. On April 14, 2010, Lucy Burnette also filed a complaint with the Commission on Ethics, against Lonnie Evans. In her complaint (Ethics Complaint 10-074), she claimed that Mayor Evans came with Chief Moore to the local fruit stand, in the police car while Chief Moore was in uniform, asking her to vote for him. Ms. Burnette did not file a complaint against Chief Moore. The complaint was written out by Cynthia Martin, while Ms. Burnette volunteered at the fruit stand. She acknowledged at hearing that some of the statements contained in the written statement were not true, and she wished that she had read the statement more closely before she signed it. For example, the statement in her complaint that "the former mayor asked me to vote for him while he was with the chief of police, in uniform" was not true. According to Ms. Burnette, Mr. Evans did not get out of the car and did not speak to her. Ms. Burnette testified that Chief Moore and Mayor Evans came to the fruit stand in a gray city police car. Mayor Evans was in the passenger seat. Chief Moore got out of the car, according to Ms. Burnette, and told her she needed to talk to Mayor Evans about what she wanted and she could possibly get it. The only indication as to when this incident supposedly occurred was that it happened just before the 2008 election. Ms. Burnette had an ongoing issue with the City of Coleman over her attempts to run a deli or barbeque on her property. At one point, while she claimed she was not a resident of Coleman, Chief Moore had been directed to "shut her down." She claimed that she wanted, but did not need, a license to operate, and that Chief Moore told her to talk to the mayor and he could help her get the license she sought. Although the record is unclear, it appears that her licensure problem exists because her property is not zoned for commercial use, and that in order for her to get a license, she would have to seek a variance from the city council. In any event, Mayor Evans does not issue licenses or direct them to be issued. While he may have had some influence on the decision- making process, the comment made by Chief Moore, if in fact he made it, made no reference to the election or voting for Mayor Evans. Ms. Burnette simply made the assumption that Chief Moore was implying that a vote for Mayor Evans would help Ms. Burnette's efforts to receive a license. She even referred to Chief Moore's statement as some sort of bribe by Mayor Evans, delivered through Chief Moore. Chief Moore often stopped by the fruit stand on his way home from work to buy some fruit. Lucy Burnette often complained to him about her problems related to getting a license when he stopped by. He testified that he told her, on more than one occasion, that she should talk to Mayor Evans or members of the city council about her problem, but did not talk to her about the election or ask her for votes. His testimony is credited. Lucy Burnette's written complaint indicates that there were witnesses to Chief Moore and Mayor Evans coming to the fruit stand in the police car. Investigator Maolli from the Commission on Ethics was unable to locate any witnesses to corroborate her account. On April 14, 2010, Ronnie Owens filed complaints with the Commission on Ethics against both Chief Moore and Mayor Evans (COE Complaint Nos. 10-075 and 10-076). Cynthia Martin approached Mr. Owens and told him about "the election thing," and asked him if he saw Chief Moore and Lonnie Evans in the car together. She asked him to file complaints with the Commission on Ethics, and actually wrote out the complaints for him to sign. Prior to Ms. Martin approaching him, Mr. Owens was not aware that there was any problem with the mayor and the police chief campaigning while on duty. He admitted that he filed the complaint after he had a "run-in" with Chief Moore over an incident that took place at a local store. The City of Coleman is bisected by a railroad track. Residents living in the neighborhood on the west side of the track are predominately African-American. This area of the town is sometimes referred to as "the quarters." It is not unusual for some residents of the quarters to sit at a table in a lot on the corner, or on someone's front porch, and play cards or dominos. Mr. Owens claims that prior to the election, he and some other men were sitting at Mr. Robert T's house playing dominos. Mayor Evans and Chief Moore drove up in the gray Crown Vic and walked over to the men, and Chief Moore asked them to support Lonnie Evans in his election. One of the men asked Evans for a campaign sign, and Evans indicated he did not have any with him, but would bring one back. Mr. Owens testified that Lonnie Evans later returned, in his truck, and gave a campaign sign to one of the men. Mr. Owens stated that there were five men present when Mayor Evans and Chief Moore came by the quarters. None of the other men testified at hearing, and Investigator Maolli was unable to find any who could corroborate that Evans and Moore came to the quarters in the police car while Moore was in uniform. Each incident reported by the Bronsons, Ms. Burnette, and Mr. Owens involved the use of a city-owned police car while campaigning. The City of Coleman owns three police cars: a marked patrol car, a white Crown Victoria, and a gray Crown Victoria. The passenger compartment of the police cars contains a computer, printer, video system, radar unit, and other equipment. By necessity, this equipment takes up space not normally filled in a regular vehicle. The City Council had approved Chief Moore's use of a car as a "take home" vehicle, and he used the white Crown Victoria almost exclusively. He drove the white police car back and forth to work from his home in Cedar Hill. He testified credibly that he was allowed to make stops in the city car, for example to pick up a grocery item, on his way to and from work. It was not permissible to use the car for personal entertainment or trips. Chief Moore also drove his personal car, a Buick Lucerne. Lonnie Evans stopped driving, at the urging of his wife and son, by either September or early October of 2008 because of his declining eyesight. As a consequence, he did not drive during the 2008 campaign. He was driven to campaign by his wife, Carolyn, in their red Jeep SUV, by a member of the City Council and former postmistress Vergie Everett (who passed away in February of 2010) in her Cadillac, or on one occasion, by Chief Moore in his privately-owned Buick. Both men testified credibly that when Chief Moore drove Mr. Evans, it was on a weekend and Chief Moore was dressed in jeans and a t-shirt. Both men also testified that there was one occasion when Lonnie Evans rode in the front seat of the white police car while it was driven by Chief Moore. A benefit was held to help Cleveland Williams, a former member of the city council, who had become disabled. After the benefit, the proceeds were counted at City Hall and placed in an envelope for delivery. Mayor Evans accompanied Chief Moore to deliver the funds raised at the benefit. The two men rode past the location in the quarters where the men played dominos on their way to Mr. Williams' home, but did not stop. Because of the amount of equipment and the "accumulated mess" in the police car, Mayor Evans found it exceedingly uncomfortable and was emphatic that he would not repeat the experience. With the exception of one of the men in the quarters requesting a sign, there is no claim that at any time signs or flyers or campaign literature of any kind was distributed. There was one occasion when, according to Chief Moore, campaign signs for both candidates were placed in a patrol car. On the one occasion when this occurred, teenagers had vandalized some campaign signs for both candidates. They were transported in the white police car to where the kids were congregated, and then placed in the marked patrol car and taken to the police station where the parents of the suspected were contacted and shown the signs. His testimony is credited. Based on the totality of the evidence presented, there is not clear and convincing evidence that Mayor Evans or Chief Moore ever used a city vehicle to campaign during the December 2008 election, and there is not clear and convincing evidence that Chief Moore campaigned on Lonnie Evans' behalf while on duty. Bob and Carolyn Bolesta also testified to a conversation with Chief Moore that they believed occurred shortly before the 2008 election. Both denied ever seeing Chief Moore and Mayor Evans riding in a police car together. However, they both testified that, on occasion, Chief Moore would come by their home to check on them, as Mr. Bolesta had suffered from some significant heath issues. On one occasion, the Bolestas testified that Bob Bolesta and Chief Moore discussed the election and Mr. Bolesta (who supported Eve Carruthers) expressed the view to Chief Moore that Mayor Evans "was in trouble." He stated that Chief Moore then said he would have to go see some people about the votes, and believed that Chief Moore initiated the conversation. Frank Moore acknowledged going out to the Bolestas to check on them, and enjoyed speaking with them. He denied, however, asking them to support Lonnie Evans for mayor. Chief Moore did admit politics may have been discussed with Mr. Bolesta, as Mr. Bolesta liked to talk about Coleman and what was going on in the town. Chief Moore denied initiated the discussion regarding the election and denied asking for votes. The Bolestas were also often visited by James Dingle when he was with the police department. Mr. Bolesta often attended city council meetings, and was disturbed about James Dingle's termination from the police department. The more credible evidence demonstrates that the Bolestas and Chief Moore did discuss politics as part of a general discussion, but that the discussion did not rise to the level of campaigning for Mayor Evans.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED that the Florida Commission on Ethics enter a Final Order and Public Report finding that no violation of section 112.313(6) has been demonstrated. DONE AND ENTERED this 16th day of February, 2011, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON 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 16th day of February, 2011.
