The Issue Whether Petitioner's Renewed Second Amended Motion for Summary Final Order should be granted.
Findings Of Fact On June 11, 2008, Petitioner, Florida Elections Commission (Petitioner or Commission) forwarded this case to the Division of Administrative Hearings for formal proceedings. Along with the referral the Commission filed two Orders of Probable Cause dated November 30, 2007, and May 26, 2006, together with the Staff Recommendations. An Initial Order was entered on June 11, 2008, and was provided to Bruce Calvin Trask (Respondent). On June 30, 2008, a Notice of Hearing was issued setting the final hearing for September 16, 2008. Neither was returned undeliverable. On July 11, 2008, Petitioner filed a Motion for Summary Final Order. Subsequently, on July 24, 2008, Petitioner filed an Amended Motion for Summary Final Order. Consequently, on August 12, 2008, the undersigned entered an Order to Show Cause that directed Petitioner to clarify some issues. More specifically, the Order to Show Cause provided: No later than August 25, 2008, Petitioner shall respond to this order to show cause in writing as to why the case shall not be held in abeyance until Petitioner demonstrates Respondent has received the appropriate service. No later than August 25, 2008, Petitioner shall notify the undersigned if the Amended Motion contains a scrivener's error and correct it for the record, if necessary. On August 25, 2008, Petitioner Responded to the Order to Show Cause and requested that the case be placed in abeyance. On November 20, 2008, Petitioner served Respondent with Petitioner's First Request for Admissions and filed Petitioner's Second Amended Motion for Summary Final Order. Consequently, on January 8, 2009, the undersigned entered an Order to Show Cause that directed Respondent to file a response to the allegations. More specifically, The Order to Show Cause provided: The ruling on Petitioner's Motion for Summary Final Order is reserved. No later than January 16, 2009, Respondent shall file, with the Division of Administrative Hearings, a written answer or other pleading setting forth the disputed issues of fact with reference to the factual allegations of the two counts of the Orders of Probable Cause dated May 26, 2006, and November 30, 2007, and/or the factors in Section 106.265(1), Florida Statutes, which include, but are not limited to, mitigation issues. Respondent's answer or other pleading shall simultaneously be served upon Petitioner's counsel of record. The failure to file a response to this order will be deemed an admission of the information set forth in the Order of Probable Cause and can result in the Motion for Summary Final Order being granted. If the motion is granted, the Respondent can be found guilty of the two violations charged in the Orders of Probable Cause, and a civil penalty up to an amount of $2,000 can be imposed against Respondent. The Order to Show Cause was provided to Respondent's correct address of record. The Order was not returned undeliverable. It is presumed Respondent received a copy of the Order. To date, Respondent has not responded to the Order to Show Cause. On February 6, 2009, Petitioner filed a Renewed Second Amended Motion for Summary Final Order. Petitioner confirmed contact with Bruce Trask through Respondent's brother who gave Respondent documents related to the instant case, which had been served. Respondent has never responded to the Motion for Summary Final Order, Amended Motion for Summary Final Order, the Second Amended Motion for Summary Final Order, or the Renewed Second Amended Motion for Summary Final Order. Respondent has not disputed any of the material facts at issue in this proceeding. Notice of the allegations was provided to Respondent. Respondent has not responded to Petitioners First Request for Admissions. Rule 1.370(b), Florida Rules of Civil Procedure provides: Any matter admitted under this rule is conclusively established unless the court on motion permits withdrawal or amendment of the admission.
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
Conclusions An Administrative Law Judge of the Division of Administrative Hearings has entered at Order Closing File in this proceeding. A copy of the Order is attached to this Final Order as Exhibit A.
Other Judicial Opinions OF THIS FINAL ORDER PURSUANT TO SECTION 120.68, FLORIDA STATUTES, AND FLORIDA RULES OF APPELLATE PROCEDURE 9.030(b)(1)(C) AND 9.110. TO INITIATE AN APPEAL OF THIS ORDER, A NOTICE OF APPEAL MUST BE FILED WITH THE DEPARTMENT’S AGENCY CLERK, 2555 SHUMARD OAK BOULEVARD, TALLAHASSEE, FLORIDA 32399-2100, WITHIN 30 DAYS OF THE DAY | THIS ORDER IS FILED WITH THE AGENCY CLERK. THE NOTICE OF APPEAL MUST BE SUBSTANTIALLY IN THE FORM PRESCRIBED BY FLORIDA RULE OF APPELLAT PROCEDURE 9.900(a). A COPY OF THE NOTICE OF APPEAL MUST BE FILED WITH | THE APPROPRIATE DISTRICT COURT OF APPEAL AND MUST BE ACCOMPANIED BY THE FILING FEE SPECIFIED IN SECTION 35.22(3), FLORIDA STATUTES. YOU WAIVE YOUR RIGHT TO JUDICIAL REVIEW IF THE NOTICE OF APPEAL TS NOT TIMELY FILED WITH THE AGENCY CLERK AND THE APPROPRIATE DISTRICT COURT OF APPEAL. MEDIATION UNDER SECTION 120.573, FLA. STAT., IS NOT AVAILABLE WITH RESPECT TO THE ISSUES RESOLVED BY THIS ORDER. FINAL ORDER NO. DCA09-GM-232 CERTIFICATE OF FILING AND SERVICE I HEREBY CERTIFY that the original of the foregoing has been filed with the undersigned Agency Clerk of the Department of Community Affairs, and that true and correct _ copies have been furnished to the persons listed below in the manner described, on this ve day of September, 2009. . an = / W% Paula Ford Agency Clerk Florida Department of Community Affairs 2555 Shumard Oak Boulevard Tallahassee, Florida 32399-2100 U.S. Mail: The Honorable Bram D. E. Canter Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-3060 William e. Reischmann, Jr., Esq. Brown, Garganese, Weiss, & D’Agresta 111 North Orange Avenue, Suite 2000 Orlando, Florida 32801-2327 Hand Delivery: Matthew Davis, Esq. Assistant General Counsel Department of Community Affairs 2555 Shumard Oak Blvd. Tallahassee, Florida 32399
The Issue What is the appropriate fine for Respondent's 17 violations of Chapter 106, Florida Statutes (1999)?
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing, the following findings of facts are made: Respondent is an elected public official, a State of Florida State Senator; violations of the Florida Elections Law during his election to that high office triggered this case. He has been a state legislator for more than a decade. The Third District Court of Appeal remanded the original case for reconsideration of the penalty after affirming Respondent's 17 violations of Chapter 106, Florida Statutes (1999). The 17 violations affirmed by the Third District Court of Appeal are: two violations of Subsection 106.07(5), Florida Statutes (1999), for certifying as correct, an incorrect campaign treasurer's report; four violations of Subsection 106.19(1)(b), Florida Statutes, for failing to report four personal loans (contributions) to his campaign; five violations of Subsection 106.143(1), Florida Statutes, for advertisements without disclaimers; five violations of Subsection 106.132(2), Florida Statutes, for advertisements that did not contain a party affiliation; one violation of Subsection 106.143(4)(a), Florida Statutes, for failure to state that the candidate approved the campaign advertisement. Respondent's current employment is that of a Florida state senator. His direct income from that employment is $29,916. He receives additional payments from the State of Florida in the form of reimbursements for travel, per diem, and other approved expenses related to his official position. Respondent enjoys a remarkable lifestyle. He owns two homes, one in Miami and the other in Tallahassee. Recently married, the Tallahassee home is jointly-owned with his wife and was purchased for $795,000. While the Miami home was owned by Respondent, individually, prior to the marriage, it is now jointly-owned. The change in title to the Miami home may be the result of refinancing subsequent to his marriage. Respondent leases a Lexus automobile; the monthly lease cost is $755. Respondent maintains a Schwab investment account to which he contributes $150 monthly. In August 2005, the account had a value of approximately $7,200. Respondent maintains an American Express credit card account, jointly with his wife, that had a balance due of $61,000 during the time of the hearings. In September 2004, Respondent loaned his legislative aide $15,000, which at the time of the hearings remained un- repaid. In May 2005, Respondent refinanced his Miami home, which he valued at $210,000 on his 2004 Form 6, for $384,300. At the time of the hearings, Respondent had funds on deposit in Sunshine State Credit Union and Washington Mutual Bank of approximately $3,800. Respondent's personal living expenses exceed his stated income. No reasonable explanation has been offered for his ability to maintain his lifestyle. Respondent's net worth will allow him to pay any fine appropriate for the 17 violations of law affirmed by the Third District Court of Appeal. Respondent had previously violated Subsection 106.57(5), Florida Statutes (1999).
Conclusions For Petitioner: Eric M. Lipman, Esquire Florida Elections Commission Collins Building, Suite 224 107 West Gaines Street Tallahassee, Florida 32399-1050 For Respondent: Mark Herron, Esquire Messer, Caparello & Self, P.A. Post Office Box 1876 Tallahassee, Florida 32302-1876 Benedict P. Kuehne, Esquire Sale & Kuehne, P.A. BankAmerica Tower, Suite 3550 100 Southeast Second Street Miami, Florida 33131-2154
Recommendation Based on the forgoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Election Commission impose a penalty of $8,750 on Respondent, Senator Alex Diaz de la Portilla. DONE AND ENTERED this 6th day of January, 2006, in Tallahassee, Leon County, Florida. S JEFF B. CLARK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 6th day of January, 2006. COPIES FURNISHED: Mark Herron, Esquire Messer, Caparello & Self, P.A. Post Office Box 1876 Tallahassee, Florida 32302-1876 Eric M. Lipman, Esquire Florida Elections Commission Collins Building, Suite 224 107 West Gaines Street Tallahassee, Florida 32399-1050 Benedict P. Kuehne, Esquire Sale & Kuehne, P.A. BankAmerica Tower, Suite 3550 100 Southeast Second Street Miami, Florida 33131-2154 Barbara M. Linthicum, Executive Director Florida Elections Commission The Collins Building, Suite 224 107 West Gaines Street Tallahassee, Florida 32399-1050 Patsy Rushing, Clerk Florida Elections Commission The Collins Building, Suite 224 107 West Gaines Street Tallahassee, Florida 32399-1050
Conclusions An Administrative Law Judge of the Division of Administrative Hearings has entered an Order Closing File in this proceeding. A copy of the Order is attached to this Final Order as Exhibit A.
Other Judicial Opinions REVIEW OF THIS FINAL ORDER PURSUANT TO SECTION 120.68, FLORIDA STATUTES, AND FLORIDA RULES OF APPELLATE PROCEDURE 9.030(b)(1)(C) AND 9.110. TO INITIATE AN APPEAL OF THIS ORDER, A NOTICE OF APPEAL MUST BE FILED WITH THE DEPARTMENT’S AGENCY CLERK, 2555 SHUMARD OAK BOULEVARD, TALLAHASSEE, FLORIDA 32399-2100, WITHIN 30 DAYS OF THE DAY THIS ORDER IS FILED WITH THE AGENCY CLERK. THE NOTICE OF APPEAL MUST BE SUBSTANTIALLY IN THE FORM PRESCRIBED BY FLORIDA RULE OF APPELLATE PROCEDURE 9.900(a). A COPY OF THE NOTICE OF APPEAL MUST BE FILED WITH THE APPROPRIATE DISTRICT COURT OF APPEAL AND MUST BE ACCOMPANIED BY THE FILING FEE SPECIFIED IN SECTION 35.22(3), FLORIDA STATUTES. YOU WAIVE YOUR RIGHT TO JUDICIAL REVIEW IF THE NOTICE OF APPEAL IS NOT TIMELY FILED WITH THE AGENCY CLERK AND THE APPROPRIATE DISTRICT COURT OF APPEAL. MEDIATION UNDER SECTION 120.573, FLA. STAT., IS NOT AVAILABLE WITH RESPECT TO THE ISSUES RESOLVED BY THIS ORDER. FINAL ORDER NO. DCA11-GM-051 CERTIFICATE OF FILING AND SERVICE I HEREBY CERTIFY that the original of the foregoing has been filed with the undersigned Agency Clerk of the Department of Community Affairs, and that true and correct copies have been furnished to the persons listed below manner described, on this V7 4 day of March, 2011. U.S. Mail: The Honorable Bram D.E. Canter Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-3060 Julia Cole City of Tampa Attorney’s Office 315 East Kennedy Boulevard, 5" Floor Tampa, FL 33602 Mark Bentley Attorney for Intervenors 201 N. Franklin St., Suite 1650 Tampa, FL 33602-5167 Hand Delivery: Matthew Davis Assistant General Counsel Department of Community Affairs 2555 Shumard Oak Bivd. Tallahassee, Florida 32399 hala nf Paula Ford Agency Clerk Florida Department of Community Affairs 2555 Shumard Oak Boulevard Tallahassee, Florida 32399-2100
Other Judicial Opinions OF THIS FINAL ORDER PURSUANT TO SECTION 120.68, FLORIDA STATUTES, AND FLORIDA RULES OF APPELLATE PROCEDURE 9.030(b)(1)(C) AND 9.110. TO INITIATE AN APPEAL OF THIS ORDER, A NOTICE OF APPEAL MUST BE FILED WITH THE DEPARTMENT'S AGENCY CLERK, 2555 SHUMARD OAK BOULEVARD, TALLAHASSEE, FLORIDA 32399-2100, WITHIN 30 DAYS OF THE DAY THIS ORDER IS FILED WITH THE AGENCY CLERK. THE NOTICE OF APPEAL MUST. BE SUBSTANTIALLY IN THE FORM PRESCRIBED BY FLORIDA RULE OF APPELLATE PROCEDURE 9.900(a). A COPY OF THE NOTICE OF APPEAL MUST BE FILED WITH THE APPROPRIATE DISTRICT COURT OF APPEAL AND MUST BE ACCOMPANIED BY THE FILING FEE SPECIFIED IN SECTION 35.22(3), FLORIDA STATUTES. YOU WAIVE YOUR RIGHT TO JUDICIAL REVIEW IF THE NOTICE OF APPEAL IS NOT TIMELY FILED WITH THE AGENCY CLERK AND THE APPROPRIATE DISTRICT COURT OF APPEAL. MEDIATION UNDER SECTION 120.573, FLA. STAT., IS NOT AVAILABLE WITH RESPECT TO THE ISSUES RESOLVED BY THIS ORDER. FINAL ORDER NO. DCA09-GM-333 CERTIFICATE OF FILING AND SERVICE I HEREBY CERTIFY that the original of the foregoing has been filed with the undersigned Agency Clerk of the Department of Community Affairs, and that true and corrgct copies have been furnished to the persons listed below in the manner described, on this 20 day of September, 2009. 4 Z gency Clerk Florida Department of Community Affairs 2555 Shumard Oak Boulevard Tallahassee, Florida 32399-2100 U.S. Mail: The Honorable Bram D. E. Canter Brenna M. Durden, Esq. Administrative Law Judge Lewis, Longman & Walker, P.A. Division of Administrative Hearings 245 Riverside Avenue, Suite 150 The DeSoto Building Jacksonville, Florida 32202 1230 Apalachee Parkway Tallahassee, FL 32399-3060 Kenneth B. Hutchins 22645 Fishcreek Highway Conrad C. Bishop, Jr., Esq. Perry, Florida 32384 The Bishop Law Firm, P.A. P.O. Box 167 Perry, Florida 32348 Hand Delivery: Matthew Davis, Esquire Assistant General Counsel Department of Community Affairs 2555 Shumard Oak Blvd. Tallahassee, Florida 32399
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.
