The Issue The issues are whether either Respondent committed violations of Chapter 106, Florida Statutes, and, if so, what penalties should be imposed.
Findings Of Fact Ms. Valliere is a county commissioner for Martin County. She was first elected in the fall of 2002 and re- elected in the fall of 2006. The case against her involves the primary campaign for the 2006 election, which was held on September 5, 2006. She won this race and faced no opposition in the general election. Mr. Valliere is the husband of Ms. Valliere. He has a law degree from the University of Chicago. After graduating from law school, he worked as a patent lawyer in Chicago for 15-20 years before joining a private company in Iowa engaged in the manufacture of computer products. Mr. Valliere served for several years as vice-president and general counsel of this small company. He is not a member of The Florida Bar and no longer practices law. In 1988, Mr. and Ms. Valliere, who had been working as a paralegal for the same Iowa computer-product manufacturer, moved to Stuart, combining their families from previous marriages. Mr. Valliere essentially retired, although he attended to some personal litigation after arriving in Florida. Ms. Valliere raised the children and assisted Mr. Valliere in the litigation with which he was involved. As the children aged, Ms. Valliere set up a small business, with which Mr. Valliere assisted. After the children had grown, Ms. Valliere entered local politics, running for a seat on the county commission in 2002. She and her husband had no prior experience in these matters, but Ms. Valliere drew on community support to aid in her effort, and she successfully unseated the incumbent. For two months during the summer of 2002, Ms. Valliere served as the treasurer of her campaign, but she eventually found someone else to assume these duties, although their official roles remained, respectively, treasurer and deputy treasurer. In October 2002, due to problems with their relationship, Ms. Valliere began to live apart from Mr. Valliere, although they are still married. After this separation, persons initiated litigation concerning Ms. Valliere's actual residence, and she formed a trust to fund her legal costs in defending the litigation. In connection with this defense, Ms. Valliere retained local attorneys, Virginia Sherlock and Howard Heims. Approximately 250 supporters contributed $20,000 to $25,000 to Ms. Valliere's legal-defense fund, which was administered by three trustees, none of whom was Mr. Valliere. During the course of the litigation, Mr. Valliere voluntarily performed legal research for use by Ms. Sherlock, with whom he met frequently to discuss the case. Ms. Valliere prevailed in the residency litigation, and she later prevailed in an abuse-of-process action against the persons who had initiated the earlier litigation. This resulted in a cash settlement in May 2005. Ms. Valliere was prepared to return the funds to the 250 contributors to the legal-defense fund, but Mr. Valliere saw this as an opportunity to fund Ms. Valliere's re-election campaign. Ms. Valliere was unsure whether she would run for re- election, but did not stop Mr. Valliere from soliciting the contributors to her legal-defense fund. However, she secured his promise that, if she did not run for re-election, Mr. Valliere would return all of the money. In May 2005, Mr. Valliere formed the political committee, CCMC. Mr. Valliere then contacted the contributors to the legal-defense fund, and 150 of them agreed to allow their contributions to be transferred to CCMC. After this, CCMC received small amounts of money until Mr. Valliere actively solicited funds. Overall, CCMC raised and spent about $34,000, as compared to about $86,000 raised and spent by Ms. Valliere's political campaign. Mr. Valliere appointed himself as the chair and treasurer of CCMC, whose sole purpose was to promote the re- election of Ms. Valliere in the 2006 election. He also named a finance committee, which never met. For all purposes, Mr. Valliere was the sole means through which CCMC acted; he raised funds, completed and filed reports, and made arrangements with vendors for the production of campaign products. About the only thing that Mr. Valliere did not do for CCMC was computer design work. Count 83 against Mr. Valliere alleges that, in May 2005, he falsely reported in the CCMC organizational paperwork that Robert Lennon was a member of the committee when he was not. This allegation is true. It is unlikely that Mr. Valliere incorrectly thought that Mr. Lennon was on the committee when he was not, at least where Mr. Valliere offers no plausible explanation of how the error arose. Moreover, Mr. Valliere's disturbing references to "we" and "I" (Tr., pp. 72-73), which refer to the legal-defense fund, of which he was not even one of the trustees, suggest a disregard for the substance of the entities with which Mr. Valliere was dealing at the time of the formation of CCMC. It is thus clear that the requisite of naming a finance committee was mere paperwork that Mr. Valliere dutifully completed, and the misstatement of the name of an acquaintance as a member of the committee was wilful or, were it not wilful, an act of conscious culpability. In September 2005, tension emerged between Mr. and Ms. Valliere concerning CCMC and Ms. Valliere's plans. As Ms. Valliere explained, she did not finally decide to run until she filed the papers the following April. The tension arose from two sources: her feeling that Mr. Valliere's efforts were premature and his attempt to force her to run and her concern that, if she did run, her campaign and Mr. Valliere's political committee would be competing for the same funds. The latter point proved an issue, as potential contributors felt that they had already contributed to Ms. Valliere's campaign if they had already given to Mr. Valliere's political committee. At this time, Ms. Valliere wrote Mr. Valliere a note that complained that he was pressuring her to run, and she wanted the CCMC money, which had been obtained from the legal defense fund contributors, returned to the contributors. Shortly after delivering this note, Ms. Valliere had an argument with Mr. Valliere about this matter and did not speak to him for at least three weeks, although they agreed at least that CCMC would return the money if Ms. Valliere chose not to run. In October 2005, Mr. and Ms. Valliere had lunch, and she told him he could do what he wanted with CCMC, and she would do what she wanted to do with her political campaign. Mr. Valliere admits to being controlling and manipulative. These admissions are accepted and will largely suffice for purposes of this Final Order. The relationship between Mr. and Ms. Valliere from April through August 2006 is the pivotal issue for the myriad campaign finance violations alleged in these cases. Mr. Valliere obviously tries to control and manipulate, prompting persons dealing with him to document discussions with him. He is intense, hyperactive, apparently accustomed to getting his own way, and likely relentless in bending exchanges or transactions to conform to his will or understanding. In general, the likelihood of a firewall between a husband and wife, so as to preclude attributing the acts and omissions of the husband to the wife, may be low, but the determination depends on the facts of a given case. Here, it is a particularly complex determination because the period in question may not be representative of the longer relationship that has existed between Mr. and Ms. Valliere. It is also a complex determination because, as Mr. Sorenson described the Vallieres' relationship during the campaign, it was "weird," a "love-hate thing." However, two credible, independent witnesses confirm that, in April and late June, Ms. Valliere was upset to the point of tears with her husband about relationship issues that transcended mere differences in whether or how she would run for re-election to a seat on the county commission. Nothing in the record suggests a reconciliation in the ensuing two months, so as to provide a firmer basis on which to infer coordination between the political campaign and the political committee. To the contrary, from Ms. Valliere's perspective, as she testified during her deposition, she decided to go it alone and handle her campaign pretty much herself. After spending many hours in hearing with Mr. Valliere, the Administrative Law Judge finds it highly likely that, at various times during the campaign, Ms. Valliere was fed up with him, aggravated with him, and estranged from him. It is equally unlikely that Mr. Valliere would be deterred by Ms. Valliere's feelings about his actions, ostensibly on his wife's behalf. It is impossible to say on this record that it is likely, but it certainly is plausible, that, except where directly prohibited or ordered to act, as noted in the few instances below, Mr. Valliere was obstinately going to attend to the myriad, detailed tasks that he had set for himself in his political committee, regardless of his wife's desire, consent, or even knowledge. In November 2005, Mr. Valliere entered into a contract with his son, Jonathan, a young adult, who spent considerable time with Mr. and Ms. Valliere separately, but did most of his computer design work at Ms. Valliere's condominium, at least after April 2006. The contract called for Mr. Valliere's son to perform certain computer design work, for which he has a recognized talent, on behalf of CCMC, but prohibited him, under pain of nonpayment, from disclosing any of his work to Ms. Valliere. The work was for large signs, yard signs, vehicle banners, and billboard banners. Over the next couple of months, Jonathan completed the design work, by the agreed-upon deadlines, for all of the items. In February and March 2006, Jonathan completed design work for large campaign signs. Ms. Valliere remained ambivalent about running, but she attended a candidate training session during this period. In March 2006, Jonathan completed design work on small yard signs. In the first week of April, he completed the design work on a sign proclaiming that Ms. Valliere supported a controversial local bridge project, but not advocating the election of Ms. Valliere or defeat of her opponent. April proved to an eventful month for Mr. and Ms. Valliere. On April 23, Ms. Valliere filed the materials necessary to run for re-election, and she designated Kirk Sorenson as her campaign manager or, with her, co-manager. About ten days earlier, Ms. Valliere hosted Mr. Valliere and attorneys Sherlock and Heims for a pizza dinner at her condominium. The purpose of the meeting was mostly to try to enlist the support of Ms. Sherlock and Mr. Heims for Ms. Valliere's re-election. During the course of the meeting, Mr. Valliere showed Ms. Sherlock and Mr. Heims a sign that he and Jonathan had prepared for the campaign and discussed the other signs for which Mr. Valliere had assumed responsibility. Mr. Valliere prided himself in his sign work. He was the first in Martin County to use a sign on material that stretched over an entire motor vehicle. It does not appear that his conversation about the signs established coordination between CCMC and the campaign concerning signs. Design work was complete, although it could still be changed and little production had taken place. However, nothing suggests that the role of Ms. Valliere, while Mr. Valliere proudly described his work to her guests, was any more than that of a dutiful wife listening to her husband extol his own virtues at a party. While it is true that Mr. Valliere's conversation would have communicated to Ms. Valliere that CCMC's efforts would be focused on signs, this hardly qualifies as meaningful coordination for three reasons: first, Mr. Valliere would likely emphasize signs because he viewed them as his specialty; second, Mr. Valliere had already begun posting signs around town and would very soon post many more; and third, Mr. Valliere's emphasis on signs would have been apparent to Ms. Valliere, regardless of the pizza party, because Ms. Valliere was taking a more measured approach to the campaign and had reasonably chosen to start up promotional activities closer to the primary, while Mr. Valliere had hit the ground running. It is as likely as not that the sign in her condominium was actually a point of irritation for Ms. Valliere. Two or three days before the pizza dinner, Mr. Valliere and Jonathan had placed 6-12 campaign signs in various locations, such as a local Wal-Mart, where they could be seen by voters. They placed one against some bushes in the parking lot of Ms. Valliere's condominium. When she saw it, she called Mr. Valliere and, learning of his placement of the other signs, ordered him, ”Get the damn signs down." Within a few days, Mr. Valliere and Jonathan removed all of the signs--Jonathan taking the one by Ms. Valliere's parking spot upstairs into her condominium where Ms. Sherlock and Mr. Heims later saw it. There is no reason to doubt the Vallieres' version of this event. Ms. Valliere believed that local voters would resent a candidate whose signs came out too early, and she was not fully decided about running again, so she viewed the signs as an attempt to manipulate her by Mr. Valliere. Starting in mid to late April, Ms. Valliere and Mr. Sorenson met to discuss her campaign. Her 2002 campaign had involved many volunteers. Although grateful for their efforts, Ms. Valliere wished to avoid the organizational challenges that such a grassroots effort presented, so she did not wish to involve nearly as many volunteers in 2006. In their early meetings at least, Ms. Valliere expressed her frustration that Mr. Valliere's involvement with CCMC prevented his participation with her campaign directly. However, unable to obtain as her treasurer the woman who had served in that role in the 2002 campaign, and evidently unwilling to assume the duties again herself, Ms. Valliere approached Mr. Valliere about serving as the campaign treasurer, after discussing this matter with Mr. Sorenson. Ms. Valliere felt that she had no one else available for the position, and she showed Mr. Sorenson a copy of the statute, discussed below, that permits one person to serve in the campaign and a political committee. After initially expressing reluctance about his ability to serve both entities, Mr. Valliere studied the statute that expressly permits such dual service and agreed to do so, limiting himself, at least initially, to checking the post office box daily for checks, making deposits, writing checks, preparing reports, and similar administrative tasks. As he had done with his son, so he did with his wife: Mr. Valliere drew up a contract for him and his wife that would confirm that his campaign duties would be ministerial. Mr. Valliere agreed with Ms. Valliere and Mr. Sorenson that the statute would allow him to serve as the campaign treasurer as long as he did not get involved in substantive decisionmaking for the campaign. Ms. Valliere and Mr. Sorenson discussed campaign issues, particularly how to raise money. They concentrated on direct mailing with some newspaper ads to solicit funds. Much of the work of Ms. Valliere and Mr. Sorenson involved his review of her ideas, presented in the form of sketches and text for various types of campaign literature and ads. Mr. Sorenson would make suggestions about language and graphics, such as photographs, to be used in ads or campaign literature. They then used Jonathan to produce on his computer finished ad copy, which Ms. Valliere and Mr. Sorenson would then revise, until they agreed upon the final form. When discussing signs, in June, Ms. Valliere and Mr. Sorenson agreed that yard signs would not be needed until about one month prior to the primary election. They worked on a sign design, which featured a yellow background, which contrasted with the blue background on the signs produced by CCMC. However, by early July, Ms. Valliere and Mr. Sorenson saw the CCMC signs that were appearing all over the county, so they decided not to produce any signs. CCMC enlisted the aid of local firefighters who had volunteered their time to place about 150 of the large signs and 500 of the yard signs throughout the county. Although the brunt of their effort resulting in sign deployment in mid to late July, signs were placed in the county prior to that time. Because Mr. Valliere focused his efforts almost exclusively on signs, this clear allocation of tasks--the political committee handling the signs, and the political campaign not using signs--requires close consideration of whether there was coordination between the political committee and political campaign. Obviously, Jonathan would have been a convenient vehicle for communications between the two camps concerning signs. However, two factors militate against coordination on this issue. First, Ms. Valliere and Mr. Sorenson agreed that, as an incumbent, she had name recognition and did not need to rely as much on yard signs. Second, according to the testimony of another local political candidate, who did not use yard signs, local campaigns sometimes do not use yard signs at all. Overall, Ms. Valliere disapproved of the number of signs that Mr. Valliere placed throughout the county. In her discussions with Mr. Sorenson, she consistently stated her desire to emphasize television and newspapers, rather than yard signs. The difficulty in describing the relationship of Mr. and Ms. Valliere, as noted above, extends to trying to determine the extent to which she could control his actions during the campaign, which spanned only the months of May, June, July, and August. As noted above, in early April, before she filed her papers, she could, and did, order him to remove signs that he had already placed in public places. At that time, she had the leverage with Mr. Valliere of possibly deciding not to run. Two other transactions cast additional light on the extent to which Ms. Valliere could cause Mr. Valliere to act. One involves the firefighters, who supported Ms. Valliere due to her support of firefighting issues during her first term. The firefighter who testified stated that they decided to support Ms. Valliere in early June. He then called Ms. Valliere and offered their customary help in assembling and placing signs. One to two weeks later, Mr. Valliere called the firefighter and told them his political committee was handling the signs, and they must not communicate anything about the signs with Ms. Valliere. Working with Mr. Valliere, the firefighters deployed the signs in July. The most likely inference is that Ms. Valliere told Mr. Valliere to call the firefighters due to their offer to help with signs. As in the next transaction, Ms. Valliere could have handled this matter better, such as by telling the firefighters that her campaign was not going to use signs, but they might contact CCMC to see if it was. However, for the reasons noted above in connection with the pizza party, Ms. Valliere already knew, by means not suggestive of unlawful coordination, that CCMC was going to do signs, so a mere mention of the firefighters' offer to her husband, while suggestive of coordination, does not establish the level of coordination that robs the political committee's expenditures of their independent status. The other transaction arises from a home meeting on July 24, 2006, of political candidates and persons traditionally involved in local politics and community issues. Someone asked Ms. Valliere about the placement of her signs in proximity to the signs of another candidate--evidently, given the politics of the other candidate, the physical proximity implied a philosophical proximity with which Ms. Valliere would be uncomfortable. Rather than answer the criticism by saying merely that a political committee had arranged for the placement of those signs and the questioner could take it up with Mr. Valliere, Ms. Valliere replied by saying that the firefighters had erected the signs, but she would speak to Mr. Valliere and Jonathan about separating them. Ms. Valliere's handling of the sign-proximity issue suggests, but it remains necessary to analyze the entire transaction in context. She evidently had the authority to contact Mr. Valliere and tell him to ensure a minimum spacing of her signs from the signs of other candidates. Her leverage in this transaction is harder to find than in the initial transaction, in which she told her husband to take the "damn" signs down with the implied threat of not filing to run, or in the next transaction, in which she called to her husband's attention a potentially serious mistake that he had made with the design of the signs. However, if a firefighter had placed a sign in front of a strip club or abortion clinic, Ms. Valliere could have "coordinated" with Mr. Valliere (i.e., told him to get those "damn" signs down too) without jeopardizing the independence of the expenditures of the political committee in producing and deploying the signs. All of these transactions describe elements of coordination, but not of such an extent as to cause the CCMC expenditures to fail the test of independence. The final transaction between Ms. and Mr. Valliere concerning signs arose in mid to late August. At this time, Ms. Valliere testified that she first noticed that the CCMC signs bore the following disclaimer: "Paid Political Advertisement by Citizens Committee of MC; approved by Susan Valliere, Republican, District #2." She ordered Mr. Valliere to fix the signs because she had not approved them. Jonathan seems to have designed a label that could be placed over the offending disclaimer, and Mr. Valliere, with the help of local firefighters, was able to have about 90 percent of the offending signs, according to Mr. Sorenson, altered to cover up the disclaimer. Jonathan plausibly claims responsibility for adding the disclaimer, borrowing it from the signs used in the 2002 campaign, although Mr. Valliere certainly read the sign language in its entirety prior to production. No evidence suggests that Ms. Valliere approved the signs, although she had read the signs once they were placed in the community. They involved her. They were produced by her husband, with whom she had had sharp differences over his approach to her campaign. They had been out in the community for over two months before she voiced her displeasure with the disclaimer. Ms. Valliere never disapproved of the disclaimer because, as a matter of fact, she did approve of the signs--not in advance of their production and placement, but after they were placed in the community. What changed a couple of weeks before the election is that, as a matter of law, she realized that she risked linking her campaign with Mr. Valliere's political committee by allowing the signs to contain the offending disclaimer. But accepting the benefits of the products of the political committee is not coordinating with it. Any candidate accepts the benefits of the political committee working, independently, to promote the candidate. On occasion, Ms. Valliere would wave a sign produced by CCMC or appear at an event wearing a CCMC-produced T-shirt. Similarly, she could, without establishing coordination, accept the fruits of the unrelated labors of her husband and stepson, as she did at the Stuart's Women's Club in late August 2006, when Mr. Valliere actively campaigned among the crowd and Jonathan photographed the event, presumably for promotional purposes. Neither of these acts, from the perspective of the husband and stepson, had anything to do with CCMC. In its name, CCMC placed orders with vendors for all of the political products, such as signs and T-shirts; vendors invoiced CCMC for all of these items, and CCMC paid these invoices with CCMC checks. All of these transactions were completed without the advance knowledge or approval of Ms. Valliere, directly or indirectly, such as through Jonathan or Mr. Sorenson. Nor did CCMC pay for any of the obligations of the political campaign. As campaign treasurer, Mr. Valliere obtained quotes for the campaign from various vendors, if instructed to do so by Ms. Valliere. He sometimes served as a communications intermediary between vendor representatives and Ms. Valliere or Mr. Sorenson. He even signed off on some proofs of flyers and direct mailings and became intimately involved in the scheduling of some promotional products. Although, in such acts, Mr. Valliere was exercising more than the ministerial authority of a campaign treasurer, he was not coordinating between the political committee and the political campaign; he was only ensuring that the campaign received good value for its expenditures. Likely to the relief of many, CCMC disbanded on October 12, 2006. Ms. Valliere wilfully failed to sign and certify as correct the two campaign treasurer's reports cited in Counts 1 and 2. As noted below in the Conclusions of Law, the wilfulness requirement applies to certifying an incorrect report. From the language of the statute, the failure to sign and certify a report is strict liability, but, in an abundance of caution, the findings address whether the failure to sign and certify was wilful. The campaign treasurer report for 2006 Q2 was due on July 10, 2006, and covered April 1 through June 30, 2006. Due to a problem in the original report, Mr. Valliere had to file an amended campaign treasurer's report and did so on July 26, 2006--without Ms. Valliere's signature because the amended report was prepared in the office of the Supervisor of Elections. Mr. Valliere testified that he never informed Ms. Valliere about the amended report and the requirement that she sign it. This is untrue. First, Ms. Valliere had served as her own treasurer in the previous election and is well-versed in the requirements of Chapter 106, Florida Statutes, so she knew that she had reports due when they were due. Also, a failure to report the amended report would be out of character for Mr. Valliere, who takes obvious pride in his attention to details. He had very little in the way of responsibilities in the political campaign, and the inference is inescapable that he informed Ms. Valliere about this problem. In fact, exactly what he told her is probably revealed by the situation surrounding the other campaign treasurer's report that is missing Ms. Valliere's signature. The campaign treasurer's report for 2006 F3 was due on September 1, 2006. Hurrying out of town on personal business, Mr. Valliere filed this report, again without Ms. Valliere's signature. On his trip, he realized that the filed report had an error in it, so he called Ms. Valliere and instructed her not to sign the report filed on August 31, but to wait for a three- day letter from the Supervisor of Elections, as provided by Section 106.07(2)(b)1, Florida Statutes, which is discussed in the Conclusions of Law. In the meantime, by regular mail, Mr. Valliere mailed a corrected report on August 31, but Ms. Valliere did not sign that one either. On several occasions, the Assistant Supervisor of Elections for Martin County asked Mr. Valliere to have Ms. Valliere come in and sign the reports, but Ms. Valliere never did so until March 2007, after a complaint had been filed. Ms. Valliere testified that she did not sign and certify the reports because her husband said she did not have to, but, on his advice, waited for the three-day letter. Ms. Valliere admitted that she never asked for this letter until after the complaint had been filed against her; by then, the Supervisor of Elections declined to issue the letter. However, this record offers no support for a finding that Ms. Valliere relied on her husband's advice, but instead wilfully declined to sign and certify these two reports. By the time of the second incorrect report that required amendment, Ms. Valliere had discovered that her husband had made a serious error in the preparation of the disclaimer on the signs, as well as two errors that required amending campaign treasurer's reports. Even without this knowledge, Ms. Valliere would not have accepted the advice of her husband because she had cut the strings from her husband during this campaign and was herself handling the campaign responsibilities. As this fact shields her from responsibility for dozens of campaign expenditures, so it exposes her to liability for the two reports that she refused to sign and certify in an act of wilful disobedience to the law and, were it not, an act of conscious culpability (again, assuming that a complete failure to sign and certify a campaign treasurer's reports, as distinguished from certifying incorrect reports, even requires a finding of wilfulness). The sole remaining filing count against Mr. Valliere is Count 1. The 2006 F3 campaign treasurer's report certified by Mr. Valliere to be correct omitted $2014 in two expenditures made during the covered period. Mr. Valliere filed a handwritten amended report, ostensibly to correct a math error, but actually intended to conceal the material omission from the original report, which Mr. Valliere certified was correct when it was not. Mr. Valliere knew that the items were missing when he filed the original report. His certification of correctness of the original 2006 F3 campaign treasurer's report was wilful and, were it not, would have been an act of conscious culpability. Additional evidence of wilfulness and conscious culpability in connection with this transaction are based on Mr. Valliere's attempt to conceal the original omission by claiming a mathematical error, when the actual error was one of omission of these two items. Among aggravating and mitigating circumstances, the Administrative Law Judge accepted the parties' stipulation that findings of the Valliere's finances would present neither aggravating nor mitigating circumstances. Also, neither Mr. nor Ms. Valliere has ever violated any campaign finance law prior to these cases. The violations involving campaign treasurer's reports are serious, as they undermine the reporting obligations that are the cornerstone of Chapter 106, Florida Statutes. Mr. Valliere's violation involving the misnaming of a person who was supposed to serve on the committee that never met was inconsequential, except, of course, that it violates the law. Ms. Valliere's refusal, over one and one-half years, to sign the two campaign treasurer's reports is remarkably contumacious, as is Mr. Valliere's role in this refusal to conform to the requirements of law. Lastly, neither party exhibited good faith in trying to comply with the laws that they have been proved to have violated.
The Issue The issue for determination is whether Respondent committed the offenses set forth in the Order of Probable Cause issued June 1, 2007, and, if so, what action should be taken.
Findings Of Fact In the 2006 election, Mr. Lunkins was a candidate for the Florida Senate, District 32. On or about April 20, 2005, Mr. Lunkins filed a State of Florida Appointment of Campaign Treasurer and Designation of Campaign Depository for Candidates form (DS-DE-9), designating himself as his campaign treasurer. By letter dated April 26, 2005, and sent on the same date, to Mr. Lunkins from Kristi Reid Bronson, Chief, Bureau of Election Records, Division of Elections, Ms. Bronson provided Mr. Lunkins with a user identification number and initial password, which allowed him to access the Division of Elections’ electronic filing system. The letter from Ms. Bronson was sent to the address provided to the Division of Elections. Further, Ms. Bronson’s letter contained information about filing campaign treasurer reports. She advised Mr. Lunkins that all candidates filing their campaign treasurer’s reports with the Division of Elections were required to file the reports using the electronic filing system. Also, she advised him that Chapter 106, Florida Statutes, the 2005 Calendar of Reporting Dates, and the 2004 Candidate and Campaign Treasurer Handbook were available for printing on the Division of Elections' website. By letter dated July 12, 2006, and sent on the same date, from Ms. Bronson to Mr. Lunkins, she notified him, among other things, that he had failed to file his 2006 Q2 Campaign Treasurer’s Report, which was due on July 10, 2006. By a second letter dated August 30, 2006, and sent the same date by certified mail, from Ms. Bronson to Mr. Lunkins, she notified him, among other things, that he had failed to file his 2006 Q2 Campaign Treasurer’s Report, which was due on July 10, 2006. On September 1, 2006, Mr. Lunkins claimed and received Ms. Bronson’s certified letter dated August 30, 2006. Mr. Lunkins failed to file his 2006 Q2 Campaign Treasurer’s Report, which was due on July 10, 2006. Mr. Lunkins’ failure to file his 2006 Q2 Campaign Treasurer’s Report was willful.
The Issue Whether the Respondent committed the violations alleged in the Order of Probable Cause entered August 26, 2009, and, if so, the penalty that should be imposed.
Findings Of Fact Because Ms. Fresen failed to respond to the Petitioner's First Request for Admissions, the matters of which admissions were requested are deemed conclusively established for purposes of this administrative proceeding. See Fla. R. Civ. P. 1.370. The Petitioner's First Request for Admissions is attached to this Final Order, and the matters of which admissions were requested are adopted herein as findings of fact.
The Issue The issues to be determined in this case are whether Respondent, Judy K. Beardslee, violated state election laws by certifying the correctness of a campaign treasurer's report that was incorrect, false, or incomplete, and, if so, what penalty should be imposed.
Findings Of Fact Respondent is a member of the City Council of Edgewood, Florida. She ran successfully for this political office in 2004 and 2006. The alleged offense took place during the 2004 election campaign. The City of Edgewood has approximately 1,200 registered voters, and Respondent's 2004 campaign was very modest by any measure. She received only three direct campaign contributions, totaling $415, and $50 of this sum was from her personal funds. Respondent appointed her mother, Linda Boggs, as her deputy treasurer. Three treasurer's reports were filed for Respondent's 2004 campaign. Ms. Boggs relied on Respondent for the information about contributions and expenditures that appears in the three reports. The reports disclosed $415 in campaign contributions and $415 in campaign expenditures. The treasurer's reports were signed by Ms. Boggs and by Respondent. Respondent's signatures were placed under the following statement that appears on the official campaign treasurer's report form: "I certify that I have examined this report and it is true, correct and complete." It is undisputed that on March 2, 2004, Respondent's husband, Ronald Beardslee, paid $148.56 for the production of 25 yard signs that included the words "Elect Judy Beardslee." Mr. Beardslee paid for the yard signs using a check from a joint personal bank account he owned with Respondent. The yard signs were distributed and displayed before the vote for city council members held on March 9, 2004. Mr. Beardslee's purchase of the yard signs was not reported in Respondent's campaign treasurer's report that covered the period from February 14, 2004, to March 3, 2004, and the purchase was not shown in any subsequent report. In January 2005, the Commission received a confidential complaint, alleging that Respondent's campaign treasurer's reports did not disclose all contributions made to her 2004 campaign. Following the Commission's investigation of the complaint, it issued the December 2, 2005, Order of Probable Cause that is the subject of this case. In its Order of Probable Cause, the Commission charged Respondent with violating Subsection 106.07(5), Florida Statutes, "by certifying the correctness of her [campaign treasurer's report] covering the period from February 14, 2004 to March 3, 2004, when Respondent failed to report an in-kind contribution from her husband, Ron Beardslee, of $148.56 for yard signs." Respondent testified at the hearing that at the time she certified the accuracy of the treasurer's reports, she did not know her husband had purchased the yard signs. She claims she did not know her husband purchased the signs until more than a year after the election. Respondent's husband testified that he did not consult with, coordinate with, or otherwise inform Respondent that he had purchased the yard signs until long after the 2004 election. Respondent first saw the yard signs "a couple of days before election day." Respondent also saw her husband with the yard signs before the election, and she saw the city clerk talking to her husband about the signs on election day. Nevertheless, these events did not cause her to think her husband had paid for the signs. Respondent said she thought the signs had been procured by a homeowners association that supported her candidacy. Respondent made no inquiries to determine who had paid for the yard signs. The Commission argued that Respondent's testimony at the hearing was inconsistent with her testimony in a deposition taken two weeks earlier during which she said that she found out her husband had paid for the signs on "either election day or the night before." Respondent said she was confused by the deposition question and did not mean to say she knew before the election that her husband had paid for the signs. The transcript of the deposition supports Respondent. The question put to Respondent at her deposition about when she found out who paid for the signs followed questions about when she first noticed the signs. When Respondent answered "either election day or the night before," she apparently thought she had been asked again when she found out about the signs. That is indicated by her answer to the follow-up question about how she found out, which was, "I saw them." Seeing the signs is how Respondent could first notice them, not how she could find out her husband paid for them. See Petitioner's Exhibit 15, pp. 54-58. In addition to ordering and paying for the yard signs, Mr. Beardslee distributed the yard signs. When advised to do so by the city clerk, Mr. Beardslee prepared and attached a disclaimer label to the yard signs. He also did some door-to- door campaigning for Respondent. Mr. Beardslee's door-to-door campaigning was primarily for the benefit of another candidate, but Mr. Beardslee used the opportunity to urge people to vote for Respondent. On one or two occasions, Mr. Beardslee hand- delivered Respondent's campaign treasurer's report to the city clerk. When the yard signs were made, they did not identify who paid for them. On the day of the election, the city clerk, Faye Craig, told Mr. Beardslee that the yard signs did not comply with the election laws because they had no disclaimer statement. Mr. Beardslee immediately went home and made labels that contained a disclaimer statement and then attached the labels to the yard signs. It was established that the labels included the words "Paid Political Advertisement" (possibly in another form, such as "Pd. Political Ad"), but Mr. Beardslee testified he was not sure whether the label indicated that the advertisement was paid "for Judy Beardslee" or "by Judy Beardslee." On cross-examination, Mr. Beardslee stated that the disclaimer on the yard signs might have said "by Judy Beardslee." As set forth in the Conclusions of Law that follow, the election laws require a political advertisement to disclose who paid for the advertisement. The elections laws do not require an advertisement to disclose who the advertisement is for, since that would usually be obvious. Because Ms. Craig was very familiar with the election laws, a reasonable inference can be made that she advised Mr. Beardslee to add a disclaimer to the yard signs to indicate who paid for them. It is not credible that after being told to by the city clerk to put a disclaimer statement on the yard signs, and then making the labels himself, Mr. Beardslee would not remember what the labels said in this regard. The photograph of one of the yard signs in the record (Petitioner's Exhibit 4) is not large enough to show the wording of the label clearly. However, by use of a magnifying glass, it appears to the undersigned that the second line of the disclaimer reads "by Judy Beardslee." It is reasonably clear that the first word of the second line is a two-letter word and the second letter of the word is "y."3 Considering the record evidence and the demeanor of Mr. Beardslee during his testimony, it is found that the disclaimer label indicated that the yard signs were paid for "by Judy Beardslee." The labels did not include Mr. Beardslee's name and address or indicate that the signs were paid for by him, independently of Respondent. After the election, the yard signs were put in Respondent's garage where they remained for months.4 When Respondent submitted her qualifying papers for her candidacy for the City Council, she was provided copies of the 2004 Candidate and Campaign Treasurer Handbook (Handbook) and the Florida Election Law Book. Chapter 9 of the Handbook explains the meaning of "contribution" and "independent expenditure" and the reporting requirements associated with each. Respondent admitted that she did not read the Handbook because she was exhausted from campaigning and other responsibilities. Respondent understood that the Handbook was important, because "[she] had to sign for it." Respondent never asked the city clerk about any of her duties under the election laws. Even at the time of her deposition for this case in March 2006, when asked whether she had received a copy of Chapter 106, Florida Statutes, Respondent said she did not know what Chapter 106 was because "[she] was not a lawyer." Mr. Beardslee did not file a report with the Commission to disclose that he had made an independent expenditure during the 2004 Edgewood City Council election campaign. In a letter to a Commission investigator dated May 23, 2005, counsel for Respondent stated that "even including the yard sign expenditure, the total campaign expenses were under $500.00," and suggested that the omission of the yard signs from the treasurer's report was due to inadvertence, rather than because it did not have to be reported.
Recommendation Based upon the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that the Commission enter a final order finding that Respondent, Judy K. Beardslee, willfully violated Subsection 106.07(5), Florida Statutes, and imposing a penalty of $1,000. DONE AND ENTERED this 8th day of May, 2006, in Tallahassee, Leon County, Florida. S BRAM D. E. CANTER 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 8th day of May, 2006.
Findings Of Fact Respondent was licensed as a real estate salesman in November 1979, and renewed her license as required until some time prior to October 12, 1987. A certified copy of Respondent's license record was admitted into evidence as Exhibit 1. The computer printout dated 10/12/87 shows Respondent's license as delinquent (voluntary inactive). It shows she is licensed as a salesman with license effective 11/19/84. On the same line showing 'delinquent' but several spaces therefrom is "renewal period: 2 FEE $.00". On the same line with "license effective" is "RECOVERY FEE PD $.00." Below these lines is Respondent's name below which appears "INVALID." Below which is a "%FRIEDEL BETTE L." and below this is "HOME ADDRESS," presumably that of Respondent. A review of the other documents in Exhibit 1 shows: Notification of License Change dated 2/28/83. A Request for License or Change of Status, undated, with date stamp "received June 15, 1984, Florida Real Estate Commission". This document does not indicate action by the Real Estate Commission on this request. A copy of a marriage certificate. Notification of License Change dated 6/26/84. No action indicated by the Florida Real Estate Commission. A Request for License or Change of Status dated 7/12/84 apparently notifying the Commission of a change in brokers. This document is stamped "Validated and Effective September 4, 1984." An unreadable photocopy of a computer printout similar to that in Finding No. 2 above dated 11/30/84 showing license effective 09/04/84. Below that is hand printed "Cancellation of Certificate as listed below effective date 11/19/84. Reason MIC (or M/C). Batch 2717." Request for License or Change of Status dated 4/23/86. No action on request is shown by the Commission. An undated Request for License or Change of Status received 12/30/86 by Florida Real Estate Commission. No other evidence (other than hearsay) was presented regarding Respondent's license. No copy of any license issued to Respondent is contained in Exhibit 1, and the only document showing Respondent is unlicensed is that computer printout discussed in Finding No. 2 above. In 1985, Respondent and her husband entered into a contract to purchase realty from Mr. and Mrs. Scalo. OMB Form No. 2502-0059, a Veterans' Administration Request for Verification of Employment Form, forwarded to Coldwell Banker Real State office, was signed by the Assistant Manager 11/29/85 certifying that Respondent was employed by Coldwell Banker (Exhibit 6). In the VA Financial Statement (Exhibit 7) submitted by Respondent and her husband, she shows under "employment record" that she worked as a real estate salesman for Coldwell Banker from 3/85 to 11/15/85, the date on Exhibit 7. In purchasing the residence from Scalo, Respondent represented that she was employed as a real estate salesman by Coldwell Banker. In this purchase, Respondent assumed the first mortgage from Scalo, as well as executing a second and third mortgage held by Scalo. To protect himself from Respondent and her husband failing to pay the first mortgage, Scalo provided in the contract that Respondent and her husband would verify payment of the first mortgage when they made the monthly payment on the mortgages held by Scalo. Respondent failed to provide such assurance the first month after the transaction cleared and was reminded of the requirement by Scalo. Thereafter for the next four months, Respondent notified Scalo that the first mortgage payments had been made. This was false and known by Respondent to be false. The fraud on Scalo was discovered when he was notified by the bank holding the first mortgage that the Jones were delinquent in the mortgage payments from February through July, and that payment in excess of $5900.00 was needed to stop the bank from initiating foreclosure proceedings. One of the checks payable to the bank holding the mortgage signed by Respondent (Exhibit 4) was dishonored by the payor for insufficient funds and was not made good by Respondent. Michael Good, Chief Operations Officer at Coldwell Banker, testified without contradiction that Respondent worked as a sales associate at Coldwell Banker from May 24, 1985 until April 23, 1986. On October 2, 1985, Ronald Pike submitted an offer to purchase property in Brandon, and Respondent signed the offer as broker. She also signed the earnest money release agreement dated February 26, 1986, as broker. On another transaction involving Pike, a $5,000.00 earnest money deposit was given by Pike to Respondent. The transaction failed to close, and Respondent did not return the deposit after demand was made by Pike.
The Issue Whether Petitioner, as a candidate for the Leon County Commission, District 1, in the 1998 elections, willfully violated Subsection 106.07(5), Florida Statutes, which prohibits a candidate from certifying to the correctness of a campaign treasurer's report that is incorrect, false or incomplete, on 13 separate occasions; and Subsection 106.11(3), Florida Statutes, which prohibits a candidate from authorizing any expenses from the primary campaign account without sufficient funds on deposit in the primary campaign account to pay the full amount of the authorized expenses, to honor all outstanding checks, and to pay all previously authorized but unpaid expenses, on five separate occasions. Whether Petitioner, as a candidate for the Leon County Commission, District 1, in the 1998 elections, knowingly and willfully violated Subsection 106.19(1)(a), Florida Statutes, which prohibits a person from accepting a contribution in excess of $500 for each election, on one occasion; Subsection 106.19(1)(b), Florida Statutes, which prohibits a person or organization from failing to report a contribution required to be reported by Chapter 106, Florida Statutes, on 53 separate occasions; Subsection 106.19(1)(c), Florida Statutes, which prohibits a person or organization from falsely reporting or failing to report information required by Chapter 106, Florida Statutes, on 130 separate occasions; and Subsection 106.19(1)(d), Florida Statutes, which prohibits a person or organization from making or authorizing any expenditure prohibited by Chapter 106, Florida Statutes, on five separate occasions; and, if so, the appropriate penalty.
Findings Of Fact Based on the testimony, documentary evidence, entire record of this proceeding, the following Findings of Fact are made: At the time of the alleged violations, Petitioner was a candidate for re-election to the office for the Leon County Commission, District 1, for the general election in November 1998. Respondent had won the primary, run-off and general election in 1996. He had been a candidate for election to the office of Leon County Superintendent of Schools in 1992. Petitioner has a Bachelor of Arts degree from Howard University (1981), a Doctorate of Jurisprudence from Howard University (1984), and has done advanced studies in Theology and Ethics at Boston University School of Theology. He has been employed as a Legal Assistant and Training Specialist by the State of Florida. In addition, he has served as a Staff Assistant to a United States Senator and a Special Assistant to a Governor of Florida. He serves as an adjunct professor at a local university. Prior to the alleged violations, Petitioner signed a statement indicating that he had a copy of Chapter 106, Florida Statutes, and that he had read and understood same. Petitioner is a highly educated, sophisticated individual and an experienced candidate. The charging document in this case is the Order Of Probable Cause, which set out in unnumbered paragraphs, each statutory provision that Petitioner allegedly violated and the number of times of each alleged statutory violation. Attached to the Order of Probable Cause, and incorporated in the Order of Probable Cause by reference, is a Statement of Findings which lists with specificity each alleged violation. Specifically, it alleged: Probable cause to believe that the Respondent[²] violated Section 106.07(5), Florida Statutes, prohibiting a candidate from certifying to the correctness of a campaign treasurer's report that is incorrect, false, or incomplete, on 13 occasions; Probable cause to believe that the Respondent violated Section 106.11(3), Florida Statutes, prohibiting a candidate from authorizing any expenses from the primary campaign account without sufficient funds on deposit in the campaign account to pay the full amount of the authorized expenses, to honor all outstanding checks, and to pay all previously authorized but unpaid expenses, on six occasions; Probable cause to believe that the Respondent violated Section 106.19(1)(a), Florida Statutes, prohibiting a person or organization from accepting a contribution in excess of $500 for each election, on one occasion; Probable cause to believe that the Respondent violated Section 106.19(1)(b), Florida Statutes, failure of a person or organization to report a contribution required to be reported by this chapter, on 56 occasions; Probable cause to believe that the Respondent violated Section 106.19(1)(c), Florida Statutes, prohibiting a person or organization from falsely reporting or failing to report information required by this [sic], on 131 occasions. Probable cause to believe that the Respondent violated Section 106.19(1)(d), Florida Statutes, prohibiting a person or organization from making or authorizing any expenditure prohibited by this chapter, on seven occasions. Attached to the Order of Probable Cause, and incorporated in the Order of Probable Cause by reference, is a Statement of Findings which lists with specificity each alleged violation. As it relates to the 13 alleged violations of Subsection 106.07(5), Florida Statutes, paragraph 17 of the Statement of Findings lists each of the 13 Campaign Treasurer's Reports and each alleged unreported or incorrectly reported campaign contribution or expenditure. As it relates to the six alleged violations of Subsection 106.11(3), Florida Statutes, paragraphs 19-26 list each check returned for non-sufficient funds and other relevant information to the alleged violations. As it relates to the alleged violation of Subsection 106.19(1)(a), Florida Statutes, it is discussed with specificity in paragraph 34 of the Statement of Findings. As it relates to the 56 alleged violations of Subsection 106.19(1)(b), Florida Statutes, paragraphs 17 and 36 of the Statement of Findings specifically list each of the unreported contributions. As it relates to the 131 alleged violations of Subsection 106.19(1)(c), Florida Statutes, paragraphs 17, 38 and 39 of the Statement of Findings specifically list the 131 unreported or incorrectly reported expenditures. As it relates to the seven alleged violations of Subsection 106.19(1)(d), Florida Statutes, each of the prohibited expenditures is discussed with specificity in paragraphs 19-26 and 41 of the Statement of Findings. In his Petition for Formal Administrative Hearing, Petitioner "disputes issues of material fact" listed in paragraphs 3-6, 8-10, 13-20, 22-28, 30, and 33-43 of the Statement of Findings which is incorporated by reference into the Order Finding Probable Cause. In so doing, Petitioner specifically delineates his denial of each of the specifically alleged violations incorporated in the Order of Probable Cause by the Statement of Findings and demonstrates his awareness of the specific number of alleged violations and that the Commission intended to impose a fine for each violation. On June 17, 1996, Petitioner opened a campaign account at the Florida A & M University Credit Union which was given the account number 9174. This account was opened for Petitioner's 1996 campaign. The only bank signature card on file for the campaign account is the original card dated June 17, 1996. It designates two signatories: William Proctor and Fredrick T. Smith, campaign treasurer. Although account 9174 was inactive after the end of the 1996 campaign, it was activated for the 1998 campaign. On May 19, 1997, on opening his re-election campaign, Petitioner filed form DS-DE 9 designating himself Campaign Treasurer and the Florida A & M University Credit Union as campaign depository. On January 12, 1998, he filed a second form DS-DE 9 designating Thomas Rollins as Campaign Treasurer. None of the campaign checks or deposit slips offered into evidence were signed by Tom Rollins. An examination of records of the campaign account records produced by representatives of the Florida A & M University Credit Union indicate that Petitioner personally handled essentially all campaign banking activities. In his sworn responses to inquiries directed to unreported transfers of funds from the campaign account to Petitioner's personal accounts, unreported cash received by Petitioner at the time he deposited checks payable to the campaign account, cash withdrawals, unreported campaign contributions, and other financial irregularities, Petitioner typically gave the following answer: My campaign staff was instructed to record all expenditures [or contributions ] for reporting purposes. However, this expenditure was not reported because the campaign staff included inexperienced, non- professional clerical and bookkeeping personnel who did not always follow instructions to record the contributions and expenditures for reporting purposes. In addition, the campaign had a high turnover of staff, which further complicated efforts to insure that staff properly followed instructions. The Florida A & M University Credit Union will, at any time during business hours, print-out the last 30 days' account activity for a $3.00 fee. This allows an account holder to keep track of deposits, paid checks, issued checks that have not yet been paid, etc. Campaign account records show that this was done in August 1998. On July 27, 1998, prior to the first primary election, a $500 transfer was made from the account of William Proctor, Sr. and Patricia Proctor, account number 5016, to Petitioner's campaign account. This transfer is not reported in the campaign treasurer's report. Petitioner's campaign account records indicate that a transfer of $1,000 was made to Petitioner's campaign account from the account of William Proctor, Sr., and Patricia Proctor, account number 5016, which was maintained at the Florida A & M University Credit Union, on October 12, 1998, after the first primary and prior to the general election. This transfer is not reported in the campaign treasurer's report. In addition to the $1,500 in unreported contributions that were transferred from an individual account within the Florida A & M University Credit Union mentioned in paragraphs 17 and 18, an examination of the campaign account records reveals an additional $4,900 in unreported contributions was transferred into the campaign account from another account maintained by Petitioner within the Florida A & M University Credit Union. Petitioner's campaign account records indicated that the following 53 contributions totaling $8,075 were received by the campaign but were not reported in the campaign treasurer's reports: DATE CONTRIBUTOR AMOUNT 7-11-97 1996 Bill Proctor Campaign, Account No. 5016 $345.00 10-6-97 Eight Star Land Company $50.00 10-6-97 A. L. Buford, Jr. $50.00 10-9-97 Lewis Buford $100.00 10-19-97 Barbara Rouse $25.00 10-23-97 Charles Lockhart $150.00 10-28-97 Dr. Clinitia Ford $50.00 12-19-97 R & R Corporate Systems $200.00 2-10-98 Rudolf Maloy $100.00 4-13-98 Mitchell Asphalt $450.00 4-14-98 Hannah Plumbing $100.00 4-14-98 Suber & Weaver Equipment Repair $50.00 4-16-98 Tallahassee Mack Sales $250.00 4-16-98 Capital City Lawn Care $100.00 4-22-98 Eli Roberts & Sons, Inc. $100.00 4-27-98 Fort Knox Center $250.00 4-30-98 McKenzie Tank Lines $150.00 5-7-98 Gilbert Brown $50.00 6-5-98 Jimmy R. Jones Construction $250.00 7-17-98 Walter T. Mathis $100.00 7-20-98 Ron and/or Wanda Brafford $125.00 7-24-98 William and/or Deborah Grudice $100.00 7-27-98 Transfer from Patricia Proctor Account No. 1912 $500.00 7-27-98 Transfer from Patricia Proctor Account $400.00 7-27-98 No. 1912 Transfer from William Proctor Account $500.00 7-28-98 No. 5016 Jessie Dennis $100.00 7-29-98 Mary Middlebrooks $300.00 8-1-98 John and/or Phyllis Green $100.00 8-6-98 James H. Tookes $100.00 8-6-98 Charles Lockhart $100.00 8-7-98 Angela McNair $15.00 8-8-98 Marion Camps $100.00 8-9-98 Estate of Reginal Settles-Yolanda Foutz $100.00 8-11-98 Settles Ruby Seymour Bass $100.00 8-12-98 Martin and/or Susan Proctor $100.00 8-13-98 Cherry Bluff $200.00 8-13-98 Realtors PAC of Florida $500.00 8-18-98 Alfreda Blackshear $100.00 8-19-98 Davis Insurance Agency $25.00 8-19-98 John Haughabrook $50.00 8-19-98 Brown's Paint and Body Shop $100.00 8-20-98 Winnie Davis $100.00 8-24-98 Limm-Ann Griffin $50.00 9-4-98 Charles A. Francis $100.00 9-22-98 Allan Franklin $50.00 9-23-98 Marie Roy $50.00 9-24-98 Mitchell Asphalt $500.00 10-8-98 Marcus Robinson $25.00 10-9-98 Michael Moore $150.00 10-17-98 Sharon Durham $15.00 10-27-98 Catherine Gretsch $50.00 10-27-98 Catherine Gretsch $50.00 11-1-98 Rev. Jaycee Oliver $300.00 Petitioner's campaign account records indicated that the following 35 expenditures totaling $11,149.11 were made by campaign check but were not reported in the campaign treasurer's reports: DATE PAYEE AMOUNT 7-24-98 Lamar Advertising (Check No. 1003) $3,930.00 7-24-98 Sears (Check No. 1004) $26.92 8-5-98 Bill Doolin (Check No. 1003) $25.00 8-15-98 Petrandis Realty (Check No. 1004) $700.00 8-6-98 Morrison's (Check No. 1007) $12.38 8-12-98 Sprint (Check No. 514) $280.00 8-18-98 Bethel Family (Check No. 1012) $30.25 8-21-98 Feron Jones (Check No. 1030) $100.00 8-26-98 Gallery Graphics (Check No. 1076) $350.00 8-18-98 Payee Illegible (Check No. 516) $401.25 8-29-98 Jumbo Sports (Check No. 1077) $121.79 8-29-98 Knights of Pythias (Check No. 1078) $85.00 9-2-98 Sprint (Check No. 520) $269.78 9-2-98 Sprint (Check No. 521) $30.00 9-23-98 Zakiya Williams (Check No. 1079) $300.00 9-23-98 Arthur Gaines (Check No. 1080) $50.00 9-27-98 Angelo's Seafood (Check No. 1102) $68.81 9-28-98 Books-A-Million (Check No. 1103) $29.10 9-28-98 Morrison's (Check No. 1093) $10.93 10-2-98 Zakiya Williams (Check No. 1105) $150.00 10-7-98 All-World (Check No. 1106) $565.00 10-8-98 Comcast (Check No. 1107) $350.00 10-8-98 Comcast (Check No. 1108) $2,023.00 10-9-98 Danny Harris (Check No. 1081) $300.00 10-14-98 CUP, Inc. (Check No. 1109) $25.00 10-20-98 Ada Ibraahim (Check No. 1114) $70.00 10-2-98 Zakiya Williams (Check No. 1086) $125.00 10-26-98 Olive Garden (Check No. 1129) $13.67 10-27-98 Morrison's (Check No. 1091) $12.10 11-5-98 Aaron Rental (Check No. 1093) $310.92 11-5-98 Sprint (Check No. 1094) $245.80 11-9-98 Morrison's (Check No. 1115) $22.26 11-17-98 Ming-Tree (Check No. 1095) $20.80 11-24-98 Gene Sutton (Check No. 1116) $75.00 11-28-98 Soft-Touch (Check No. 1098) $20.00 Petitioner's campaign account records indicated that 56 cash withdrawals were made from the campaign account totaling $20,070.10. None of these cash withdrawals were listed on the campaign treasurer's reports. Sixteen "official checks" (i.e., guaranteed payment checks paid for by withdrawals from the campaign account for which his campaign account paid the amount of the check plus a fee of $2 per check, similar to a cashier's check issued by a bank), totaling $9,000.10 were issued by the Florida A & M University Credit Union, and apparently used to pay campaign debts. None of these official checks were reported in the campaign treasurer's reports. A listing of these "official checks" follows: DATE PAYEE AMOUNT 4-21-98 Eugene Stanton (Check No. 144650) $300.00 4-21-98 Ricky Coring (Check No. 144716) $1,750.00 6-28-98 Lamar Advertising $500.00 7-1-98 Gene Sutton (Check No. 145837) $100.00 7-1-98 Lamar Advertising (Check No. 145843) $530.00 7-1-98 Rugenia Speight (Check No. 145844) $200.00 7-7-98 Lamar Advertising (Check No. 146000) $130.00 7-20-98 Augustus Colston (Check No. 146159) $600.00 9-1-98 The Links, Inc. (Check No. 146837) $150.00 9-1-98 Aaron Roberts (Check No. 146838) $675.10 9-30-98 WHBX Radio (Check No. 147256) $1,700.00 10-1-98 M. Feron Jones (Check No. 147305) $210.00 10-1-98 WHBX Radio (Check No. 147306) $70.00 10-14-98 Zakiya Williams (Check No. 147507) $150.00 10-16-98 Zakiya Williams (Check No. 147528) $350.00 11-4-98 Petrandis Realty (Check No. 147835) $1,585.00 Although the evidence is inconclusive, it appears that all or most of the "official checks" were the result of cash withdrawals from the campaign account. Assuming that to be the case, approximately $11,000 in cash withdrawals remain unaccounted for. In connection with making 12 deposits to the campaign account, cash was deducted from each deposit. The amount of cash received totaled $1,460. The use of this cash was not shown in the campaign treasurer's reports. Four transfers totaling $2,900 were made from the campaign account to accounts numbered 9120-2 and 6038-2 which are Petitioner's personal accounts. These transfers were not listed in the campaign treasurer's reports. The records of Petitioner's campaign account indicate that the following checks in the total amount of $4,132.93 were presented and returned for insufficient funds: CHECK NO. PAYEE AMOUNT OF CHECK 1002 Unknown $319.93 1016 WHBX $1,170.00 1017 WHBX $600.00 1108 Comcast $2,023.00 1097 Unknown $20.00 An examination of campaign checking account records reveal that fees were charged by the campaign depository for returned checks and other special banking services, totaling $165.00, which were not listed in the campaign treasurer's reports. In sum, 123 expenditures (excluding bank fees), amounting to $44,579.31 were not listed in Petitioner's campaign treasurer's reports during the 1998 campaign. On March 2, 1999, Petitioner filed an amended campaign treasurer's report for the period October 10, 1998 to October 29, 1998, indicating that he had loaned his campaign $8,000 on October 12, 1998. The campaign account does not reflect such a loan. The original campaign treasurer's report for the period October 10, 1998 to October 29, 1998, reflects "loans $8,000” without further documentation. Petitioner certified the correctness of 13 campaign treasurer's reports each of which was incorrect, false, or incomplete. On October 8, 2001, Petitioner was convicted of 8 counts of violating Section 106.19(1)(a), Florida Statutes (failure to report campaign contributions during the 1998 campaign), adjudicated guilty, and sentenced to 12 months probation, to be served concurrently, and 100 hours of community service.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is Recommended that the Florida Elections Commission enter a final order: Imposing a civil penalty in the amount of $13,000 for 13 violations of Subsection 106.07(5), Florida Statutes. Imposing a civil penalty in the amount of $2,500 for five violation of Subsection 106.011(3), Florida Statutes. Imposing a civil penalty in the amount of $5,300 for 53 violations of Subsection 106.19(1)(b), Florida Statutes. Imposing a civil penalty in the amount of $59,000 for 130 violations of Subsection 106.19(1)(c), Florida Statutes. Not imposing an enhanced penalty, as provided in Subsection 106.19(2), Florida Statutes, for Petitioner's violation of Subsection 106.19(1)(d), Florida Statutes. Dismissing the alleged violations of Subsection 106.19(1)(a), Florida Statutes. DONE AND ENTERED this 25th day of January, 2002, in Tallahassee, Leon County, Florida. JEFF B. CLARK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 25th day of January, 2002.
The Issue Whether Respondent, 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 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
Findings Of Fact On May 30, 2008, FEC entered an Order of Probable Cause charging Respondent with the following violations: Count 1: On or about January 10, 2007, Respondent violated Section 106.07(1), Florida Statutes, when he failed to file with the filing office his 2006 Q4 CTR due on that date, listing all contributions received and all expenditures made, by or on behalf of the candidate. Count 2: On or about May 7, 2007, Respondent violated Section 106.141(1), Florida Statutes, by failing to properly dispose of surplus campaign funds within 90 days after he was eliminated and to file a report reflecting the disposition of those funds, when Respondent failed to qualify between January 30, 2007 and February 6, 2007, and failed to dispose of funds in his campaign account and file a report reflecting the disposition of the funds on or before May 7, 2007. On or about December 16, 2008, Respondent was personally served with the Order of Probable Cause by process server. Because Respondent neither elected to have a formal or informal hearing conducted before FEC nor elected to resolve the complaint by consent order within 30 days after the date of the filing of FEC's allegations, on January 30, 2009, FEC referred the case to the Division of Administrative Hearings (DOAH), pursuant to Section 106.25(5), Florida Statutes (2007). The case was filed at DOAH on February 2, 2009. On February 6, 2009, Petitioner filed and served its First Requests for Admission upon Respondent. Respondent had 35 days, including time for mailing, to either admit or deny each of the Requests for Admission. Rule 1.370(a), Florida Rules of Civil Procedure provides: Each matter of which an admission is requested shall be separately set forth. The matter is admitted unless the party to whom the request is directed serves upon the party requesting the admission a written answer or objection addressed to the matter within 30 days after service of the request . . Thirty-five days from February 6, 2009, was March 13, 2009. Respondent failed to file a response to FEC's Requests for Admission by March 13, 2009. Additionally, 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. On March 17, 2009, Petitioner filed its Motion for Summary Final Order, based on the unanswered Requests for Admission, and, therefore, based upon the conclusively established admissions of fact. Respondent filed no response in opposition to the Motion for Summary Final Order, as permitted by Florida Administrative Code Rule 28-106.204. On April 3, 2009, an Order to Show Cause was entered, requiring Respondent to show cause by April 10, 2009, why a Summary Final Order should not be entered against Respondent. Respondent did not file any response. The April 3, 2009, Order to Show Cause gave Respondent a final opportunity to dispute any or all facts, to set aside the Requests for Admission, or to otherwise show cause why the Motion for Summary Final Order should not be granted. Respondent has not shown good cause. Respondent's failure to provide a written answer or objection to FEC's Requests for Admission conclusively establishes the following determinative facts, which prove the charges herein:1/ Respondent signed a Statement of Candidate form for Jacksonville City Council, District 7, on June 8, 2005. Respondent filed an Appointment of Campaign Treasurer and Designation of Campaign Depository for Candidates (DS-DE-9) on or about June 8, 2005, designating himself as the treasurer of his campaign. Respondent did not file his 2006 Q4 Campaign Treasurer's report by January 10, 2007. Respondent received a Memorandum from Beth Fleet, Director of Candidate Administration, dated January 12, 2007, notifying him that he failed to file his 2006 Q4 Campaign Treasurer's Report that was due on January 10, 2007. Respondent received an April 27, 2007, Memorandum from Jerry Holland, Duval County Supervisor of Elections, notifying Respondent that he failed to file his 2006 Q4 Campaign Treasurer's Report that was due on January 10, 2007. Respondent's failure to file his 2006 Q4 Campaign Treasurer's Report is a violation of Section 106.07(1), Florida Statutes. Respondent's Termination Report (TR) was due on May 7, 2007. Respondent received a letter dated April 27, 2007, from Jerry Holland, Duval County Supervisor of Elections, notifying him that his TR was due on May 7, 2007. Respondent did not file his TR with the Duval County Supervisor of Elections by May 7, 2007. Respondent's failure to file his TR by May 7, 2007, is a violation of Section 106.141(1), Florida Statutes.
