The Issue There are seven alleged violations at issue, six of which are related to alleged financial disclosure violations. As stipulated by the parties, at issue is whether Respondent violated: Section 112.313(6), Florida Statutes,1/ by requesting and/or accepting State reimbursement for travel expenses that were paid by campaign accounts and/or State office expense accounts; Article II, section 8, Florida Constitution, by failing to or not properly reporting income; and/or stocks and bonds; and/or secondary source income on his 2005 CE Form 6, Full and Public Disclosure of Financial Interest; Article II, section 8, Florida Constitution, by failing to or not properly reporting income; and/or stocks and bonds; and/or bank accounts; and/or real property; and/or secondary source income on his 2006 CE Form 6, Full and Public Disclosure of Financial Interest; Article II, section 8, Florida Constitution, by failing to or not properly reporting income; and/or stocks and bonds; and/or bank accounts; and/or real property; and/or secondary source income on his 2007 CE Form 6, Full and Public Disclosure of Financial Interest; Article II, section 8, Florida Constitution, by failing to or not properly reporting income; and/or stocks and bonds; and/or bank accounts; and/or real property; and/or secondary source income on his 2008 CE Form 6, Full and Public Disclosure of Financial Interest; Article II, section 8, Florida Constitution, by failing to or not properly reporting income; and/or stocks and bonds; and/or bank accounts; and/or real property; and/or secondary source income on his 2009 CE Form 6, Full and Public Disclosure of Financial Interest; and Section 112.3144, Florida Statutes, by failing to file a CE Form 6F “Final Full and Public Disclosure of Financial Interests” within 60 days of leaving his position with the Florida House of Representatives.
Findings Of Fact Based upon the testimony and documentary evidence presented at hearing, the demeanor and credibility of the witnesses, and on the entire record of this proceeding, the following findings of fact are made: Background At all times material to the Complaint, Respondent was a public officer. Respondent no longer holds public office. Respondent successfully ran for the Florida House of Representatives in 2002, 2004, 2006, and 2008. Respondent briefly ran for election to the Florida Senate in 2010 and opened a campaign account for that purpose. Respondent successfully ran for U.S. House of Representatives in 2010, but was defeated in 2012 for re- election. Respondent also ran for State Committeeman, a private, political party office of the Republican Party of Florida, in 2003, 2004, and 2008, and opened campaign accounts for that purpose. State Reimbursement for Travel Expenses that were Paid from Respondent's Campaign Accounts or State Office Expense Accounts The State of Florida allows reimbursement to employees and elected officials for travel and related expenses incurred during the conduct of official state business. Such expenses include, among other things, airfare, rental cars, hotels, and meals while travelling. The Florida House of Representatives' Office of Legislative Services is responsible for reviewing and approving expense reimbursements for members of the Florida House of Representatives. Respondent's state travel expenses were reimbursed by the Office of Legislative Services when he served as a member of the Florida House of Representatives from 2002- 2010. Kelly Kimsey, at the time a Senior Crime Intelligence Analyst II with the Public Corruption Unit of the Florida Department of Law Enforcement (FDLE), testified that she conducted the forensic analysis for this case utilizing financial records subpoenaed from financial institutions. In doing so, Ms. Kimsey analyzed Respondent's personal bank accounts, as well as his campaign accounts, and compared them against his campaign records. Ms. Kimsey created a summary showing Respondent's Bank of America campaign accounts ending in 1626, 9269, and 0856. The account statements, as well as the actual cancelled checks, reflect payments directly from the campaign accounts to Respondent’s credit card accounts, in payment of the full balance due on Respondent's personal credit cards. Notwithstanding the fact that Respondent had several credit cards, including a Chase Visa, American Express, and U.S. Senate Federal Credit Union Visa Gold, Respondent did not pay for expenses relating to his official duties as a state representative on a designated credit card. Rather, Respondent testified that his personal expenses, political party expenses, state house campaign expenses, and state house official expenses were all comingled among all of his credit cards “because the Florida House of Representatives does not issue credit cards.” On twenty-nine separate occasions throughout the period at issue, Respondent requested and received State of Florida direct-deposit reimbursement into his personal bank account for travel that was paid for by one of his campaign accounts, either his official campaign account or his committeeman account. The total reimbursement Respondent improperly received in this manner totaled tens of thousands of dollars. Three such examples follow. Respondent requested reimbursement of $622.90 for official state travel in March of 2006. Respondent's travel expenses were charged to his Chase credit card. The Chase credit card balance, which included the travel expenses, was paid for by Respondent's Campaign account numbered 1626. The State paid $622.90 for that travel into Respondent's personal bank account. Respondent requested reimbursement of $738.59, also for travel in March of 2006. Respondent's travel expenses were charged to his U.S. Senate Federal Credit Union credit card. The U.S. Senate Federal Credit Union credit card balance, which included the travel expenses, was paid by Respondent's Campaign accounts numbered 9269 and 1626. The state paid $738.59 for that travel into Respondent's personal bank account. Respondent requested reimbursement of $1,692.32 for official state travel in December of 2008. Respondent's travel expenses were charged to his American Express credit card. The American Express credit card balance, which included the travel expenses, was paid by Respondent's Campaign account numbered 9269. The state paid $1,692.32 for that travel into Respondent's personal bank account.2/ The Advocate established by clear and convincing evidence that Respondent received State of Florida reimbursement for travel and related expenses that were in fact paid for by one of his campaign accounts. Thus, Respondent was reimbursed for tens of thousands of dollars of expenses which he did not “incur.” The evidence also clearly and convincingly established that this double-reimbursement was knowing and intentional, since Respondent himself authorized the travel-related credit card charges, and then subsequently personally drafted the campaign account checks used to pay off the credit card balances. He also personally signed and submitted the State of Florida reimbursement requests. The amounts reimbursed by the State of Florida for travel-related expenses that were paid by Respondent’s campaign accounts represent income to Respondent. Respondent characterized the “double-reimbursement” allegation as an “accounting dispute.” Respondent testified that he had loaned his campaigns personal funds, and that the payments made from his campaign accounts directly to his credit card accounts should be considered repayments of his loans to his campaign accounts. However, Respondent provided no corroborative evidence to substantiate personal loans to his campaign accounts, and his testimony in this regard is rejected as not credible. Additional Sources of Income Millennium Marketing, Inc. (Millennium) and Southwest Florida Enterprises entered into a Consulting Agreement (Agreement) effective November 1, 2006. Pursuant to that agreement, Millennium (Consultant) was to provide consulting and strategic advice relative to a Miami-Dade County referendum campaign for approval of slot machine gaming. Respondent acted as the chief strategist and primary provider of services under the Agreement. Indeed, the Agreement expressly stated that Respondent was to be the person primarily responsible for leading the strategic effort to win approval of the referendum: The Consultant agrees, as a condition precedent to this Agreement, that it shall engage David Rivera as the key person to act as the primary provider of service pursuant to the terms and conditions of this Agreement and to act as the intermediary on behalf of the Consultant with the Company for all purposes, and that the failure of David Rivera to act in these capacities shall be grounds to terminate immediately this Agreement, without notice and without the Company's being required to pay any further amounts or damages, except for accrued, payable and incurred amounts due and previously invoiced as the date of termination. The Agreement provided for a base compensation to Millennium of $250,000.00, with an additional bonus of $750,000.00 should the gaming referendum prove successful. The officers of Millennium were Respondent's mother, Daisy Magarino-Rivera, and Ileana Medina. On October 13, 2010, a Miami Herald article was published in which Respondent’s income was questioned. In response to the article, the Florida Department of Law Enforcement (FDLE) immediately began a criminal investigation of Respondent’s sources of income and financial reporting. A subpoena was issued to Millennium on December 2, 2010, requesting any and all financial records from the inception of Millennium to the present concerning any and all payments made to or received from David Rivera and/or Interamerican Government Relations. Millennium supplied documents pursuant to the subpoena in two separate productions. FDLE received the first group of documents on December 17, 2010, and a second group on January 24, 2011. The first response included 11 checks made payable to Respondent, totaling $132,000. The checks have no notation on the “For” line, whether loan, contingent loan, compensation, or otherwise. The following checks were drafted by Millennium, made payable to David M. Rivera, and deposited into Respondent's personal bank account: Check No. 1006, dated January 8, 2007, $25,000 deposited January 10, 2007; Check No. 1007, dated February 20, 2007, $10,000 deposited February 22, 2007; Check No. 1024, dated February 26, 2008, $10,000 deposited March 11, 2009; Check No. 1015, dated June 12, 2008, $20,000 deposited July 10, 2008; Check No. 1025, dated October 2, 2009, $18,000 deposited October 6, 2009; Check No. 1026, dated October 3, 2009, $12,000 deposited October 6, 2009; Check No. 1031, dated February 12, 2010, $10,000 deposited March 16, 2010; Check No. 1032, dated February 26, 2010, $8,000 deposited March 16, 2010; Check No. 1033, dated March 10, 2010, $7,000 deposited March 18, 2010; Check No. 1036, dated August 10, 2010, $8,000 deposited August 16, 2010; Check No. 1038, dated August 12, 2010, $4,000 deposited August 16, 2010. As can be seen, Check No. 1024 is out of check number sequence for the date, and was not deposited until March 11, 2009, more than a year after it is dated. While it is possible that this check was intentionally pulled from the back of the checkbook and drafted, such seems extremely unlikely given that the rest of the check numbers are in numerical order for the dates of issuance. Rather, the more plausible explanation for this anomaly is that the check was actually drafted shortly before it was deposited by Respondent in March 2009, and for some reason intentionally backdated to February 26, 2008. This inference is supported by the fact that with one exception, all of the other checks were deposited by Respondent within 30 days, and most within just a few days, of the check date.3/ Given this inference, the promissory note purporting to correspond to the February 26, 2008, loan was, in all likelihood, also inaccurately dated. Respondent contends that the above payments represent the proceeds of loans made to him by Millennium. In support of this contention, Respondent introduced 11 promissory notes whose dates correspond exactly to the dates of the 11 checks above. Copies of the promissory notes were not included in Millennium’s first document production to FDLE, but rather were included with the second group of documents provided by Millennium on or about January 24, 2011. The promissory note dated February 26, 2008, corresponds directly with check number 1024. As noted, the corresponding proceeds of that purported loan ($10,000) were not actually received by Respondent until the following year when check number 1024 was deposited on March 11, 2009. Respondent testified that he repaid the Millennium loans in November 2010 with two checks from his personal account in the amounts of $29,760.27 and $11,845.21, and the conveyance of ownership of the condominium unit identified as collateral in the promissory notes. Ileana Medina of Millennium and Respondent's mother (Ms. Magarino-Rivera) loaned Respondent the cash to timely repay the loans to Millennium. Specifically, on October 29, 2010, Respondent's personal account received a deposit of $49,000 from Ileana Medina's Bank of America Home Equity Line of Credit (HELOC). The deposit raised his balance to $55,418. That deposit allowed Respondent to clear two checks to Millennium on November 24, 2010, totaling $41,605.48, both checks identified as “loan repayment.” Between December 21 and 24, 2010, Respondent deposited $19,714.72 from his mother's savings bonds into his personal account. On December 22, 2010, Respondent deposited $10,000 into his personal bank account from his Charles Schwab account. These two deposits allowed Respondent to repay nearly $30,000 towards Ms. Medina's HELOC on December 28, 2010. On January 6, 2011, Respondent deposited $20,000 from his inactive campaign account number 92694/ into his personal account. The $20,000 had been deposited into Account No. 9269 by cashier's check, remitter Daisy Rivera. That deposit allowed Respondent to pay off the remaining $18,286 of Ms. Medina's HELOC. Respondent testified that he secured the $49,000 HELOC loan from Ms. Medina for his congressional campaign in case he needed more money than what had been budgeted for media time. However, as of October 2010 (the time of the loan from Ms. Medina), Respondent's congressional campaign account had a balance of $96,645.19. Notably, the campaign had donated $87,000 to charitable organizations just the month before. Brett Lycett was the lead investigator for the FDLE criminal investigation of Respondent. Being skeptical of the legitimacy of the promissory notes, Inspector Lycett asked Millennium for the original promissory notes and the computer on which the promissory notes were prepared in order to conduct a forensic analysis. A forensic analysis of the computer and the original documents would have helped identify when the actual documents were created and/or signed. Ms. Magarino-Rivera (Respondent’s mother) told Investigator Lycett that the computer on which the promissory notes were created had been discarded. Ms. Magarino-Rivera also advised Investigator Lycett that the original promissory notes had been given to Respondent once he had repaid the loans. The Advocate propounded discovery to Respondent in this case requesting the original promissory notes. In response, Respondent stated “[O]nly copies of such promissory notes are in Respondent's possession.” The greater weight of the evidence supports the conclusion that the $132,000 in payments made to Respondent from 2007 through 2010 were compensation paid to Respondent for his consulting work on the gaming referendum, rather than the proceeds of loans from Millennium. This evidence includes: the absence of any notation on the actual checks that they represented a loan to Respondent; the Check No. 1024 anomaly discussed in Finding of Fact 25 above; and the absence of the computer and original promissory notes upon which a forensic analysis could be performed to determine the legitimacy of the dating. That having been said, the evidence of record does not rise to the “clear and convincing standard” required in this proceeding. Respondent testified that repayment of the $132,000 in Millennium loans was contingent on whether Respondent consummated a business relationship with or joined Millennium by January 15, 2011. Thus, for financial disclosure purposes, Respondent treated the loans he received from Millennium as “contingent liabilities,” and did not report the loans on his CE Form 6's for the years 2007-2010. Respondent offered no evidence to support his contention that Millennium considered the loans to Respondent to be contingent on whether Respondent consummated a business relationship with or joined the company. Moreover, Respondent’s contention is belied by the express language of the promissory notes themselves, which make no mention of Respondent’s repayment obligation being contingent on any future event. Respondent’s assertion that the loans from Millennium were contingent liabilities is rejected. Rather, the best evidence of Respondent’s obligation to repay the loans are the promissory notes, which clearly state that Respondent’s obligation to repay the loans was unconditional. Respondent’s Form 6 Financial Disclosures for 2005 through 2009. On his 2005 CE Form 6, Respondent disclosed only his State of Florida, House of Representatives' salary of $29,916. However, review of Respondent's personal bank account records reflects income of approximately $52,473 in 2005, and personal expenditures of approximately $75,000. On his 2006 CE Form 6, Respondent disclosed only his State of Florida, House of Representatives' salary of $30,576. However, review of Respondent's personal bank account records reflects income of approximately $44,968 in 2006, and personal expenditures of approximately $54,000. On his 2007 CE Form 6, Respondent disclosed only his State of Florida, House of Representatives' salary of $31,932. However, review of Respondent's personal bank account records reflects income of approximately $101,000 in 2007, and personal expenditures of approximately $128,000. On his 2008 CE Form 6, Respondent disclosed only his State of Florida, House of Representatives' salary of $30,336. However, review of Respondent's personal bank account records reflects income of approximately $79,789 in 2008, and personal expenditures of approximately $88,000. On his 2009 CE Form 6, Respondent disclosed only his State of Florida, House of Representatives' salary of $29,697. However, review of Respondent's personal bank account records reflects income of approximately $93,000 in 2009, and personal expenditures of approximately $113,000. The Advocate clearly and convincingly established that for reporting years 2005 through 2009, Respondent had income well in excess of what he reported on his CE Forms 6 for those years. Even assuming the $95,000 received from Millennium during 2007, 2008, and 2009 was a loan, not income, Respondent’s other income still exceeded by tens of thousands of dollars the amounts that he reported on his CE Form 6’s for the years at issue. No loans, contingent or otherwise, were disclosed as liabilities in Respondent's 2006, 2007, 2008, or 2009 CE Forms 6. CE Form 6 requires a specific description of each asset valued over $1,000. On his 2005 through 2009 CE Forms 6, Respondent listed “real estate,” “401K,” “stocks and bonds” and “bank accounts.” In his Proposed Recommended Order, Respondent conceded that he did not list certain assets with the level of detail required by the Commission for the years 2006-2009. CE Form 6 asks for major clients under section D as Secondary Sources of Income. For purposes of the CE Form 6, “Secondary Sources” are not second jobs. Rather, the reporter is required to disclose major customers, clients and other sources of income to business entities of which they have an interest. Under “Secondary Sources of Income,” Respondent listed Interamerican Government Relations as a “business entity” with the U.S. Agency for International Development as a “major client” on his 2005-2009 CE Form 6's. According to Respondent, while serving in the Florida House, Respondent was engaged in international democracy building programs with the U.S. Government. Funds paid to the Respondent under these grant programs were nominal and intended to pay only for expenses incurred while Respondent participated in the programs. Respondent also disclosed Millennium as a secondary source of income on his 2005 CE Form 6, but not on his 2006 through 2009 CE Form 6’s. Respondent filed the first set of CE Form 6X, Amendment to Full and Public Disclosure of Financial Interests, on October 15, 2010. These amendments delete the secondary source of income disclosed for 2003 through 2009, but make no other changes. Respondent filed a second set of CE Form 6X on January 4, 2011, for the years 2006 through 2009, which specifically identifies parcels of real estate, provides the address for Respondent's bank account with Bank of America, and lists stocks and bonds with particularity. The amendments for 2007, 2008, and 2009 also list contingent loans from Ileana Medina and/or Millennium for those years. A CE Form 6F, “Final Full and Public Disclosure of Financial Interest” was required to be filed within 60 days from November 2, 2010, the date Respondent left office as a state representative. The significant difference between a CE Form 6 and a CE Form 6X is that the CE Form 6 asks for the financial information as of December 31, or a more current date. The CE Form 6X asks for financial information as of the date the discloser left office. On March 25, 2011, Respondent filed CE Form 6 which refers to an attachment under liabilities. Attached is a United States House of Representatives' Disclosure Statement which lists a “contingent liability/loan” from Ileana Medina and/or Millennium as paid in full in 2010. On August 7, 2012, and August 24, 2012, Respondent filed two CE Forms 6X. The accompanying cover letter refers to the forms as amendments to Respondent's CE Form 6F filed for 2010. The Form filed on August 24, 2012, lists Millennium as a contingent liability and also lists a loan from Ileana Medina for $49,000. Respondent testified that he was not aware that he was required to file a CE Form 6F in January 2011. He stated that he thought the report was due in May or June of the following year. He also testified that he filed the report in March 2011, because he received a call from the Florida House counsel advising him that the report was overdue.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Commission on Ethics issue a Final Order finding that Respondent: Violated section 112.313(6), Florida Statutes, by requesting and accepting State of Florida reimbursement for travel expenses that were not incurred by him, but rather were paid by his campaign fund accounts; Violated Article II, section 8, Florida Constitution, by failing to or not properly reporting income and/or stocks and bonds; and/or secondary source income on his 2005 through 2009 CE Form 6, Full and Public Disclosure of Financial Interest; Violated section 112.3144, Florida Statutes, by failing to file a CE Form 6F “Final Full and Public Disclosure of Financial Interests” within 60 days of leaving his position with the Florida House of Representatives. DONE AND ENTERED this 6th day of June, 2014, in Tallahassee, Leon County, Florida. S W. DAVID WATKINS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 6th day of June, 2014.
The Issue This is a proceeding pursuant to the Florida Equal Access to Justice Act, Section 57.111, Florida Statutes, in which the parties have stipulated 1/ that the only disputed issues to be resolved by the Hearing Officer are: Whether the Petitioner qualifies as a small business party as defined by Section 57.111, Florida Statutes. Whether the agency's actions were substantially justified. Whether special circumstances exist that would make an award of attorney's fees unjust.
Findings Of Fact The Petitioner, Stephen S. Spector, M.D., has at all times material to this proceeding been licensed in the State of Florida as a physician. At all times material to this proceeding the Petitioner has engaged in the practice of medicine specializing in ophthalmology and ophthalmic surgery. In connection with his medical practice, the Petitioner also owns and operates, directly or indirectly, at least one outpatient surgery center where he performs most of his surgical procedures. In the normal course of events, when the Petitioner performs surgery at the outpatient surgery center he owns, the patient, or the patient's insurance carrier, is billed separately for the Petitioner's professional services as surgeon and for the use of the outpatient facility. 3/ In the course of his professional practice as a physician/surgeon and the operation of his outpatient surgery center, the Petitioner does business under a variety of business names or business entities, including the following: 4/ Steve S. Spector, M.D., P.A.; Presidential SurgiCenter, Inc.; Presidential Optical, Inc.; and Presidential Eye Center, P.A. At all times material, the Petitioner owned 100 percent of the stock in each of the four corporate entities listed immediately above. At all times material, the Petitioner was employed by Presidential Eye Center, P.A., as a physician/surgeon specializing in ophthalmology, and has been so employed for a period of approximately fourteen or fifteen years. In recent years, the Petitioner's estimated monthly income from his employment by Presidential Eye Center, P.A., was $10,000.00 per month. In some recent years, his income from his employment by Presidential Eye Center, P.A., was somewhat higher. 5/ The Petitioner also receives monthly rental payments from Presidential Eye Center, P.A., Presidential SurgiCenter, Inc., and Presidential Optical, Inc., of approximately $9,500.00. As of the date on which the Administrative Complaint was filed, the Petitioner's net worth was approximately $691,000.00. The evidence in the case does not reveal the number of Petitioner's employees or the number of people employed by the corporate entities through which the Petitioner does business. 6/ The evidence in this case does not clearly reveal which professional and/or business activities are engaged in by the Petitioner in his individual capacity and which are engaged in through each of the four corporate entities of which he is the 100 percent owner. 7/ The Case of Department of Professional Regulation, Board of Medicine v. Stephen S. Spector, M.D., DOAH Case No. 93-1307, DPR Case No. 92-0666, had its genesis in a September 17, 1991 letter from Marc Freeman, M.D., Medical Director of the Family Medical Centers, to the Department of Professional Regulation 8/ (Department) alleging that the Petitioner had made false representations related to billing practices regarding five cataract surgeries and that the Petitioner also made a practice of submitting bills for services and facilities that were allegedly covered by a capitation contract. The case was assigned to DPR Investigator Robert Herron, who notified Petitioner of the complaint and investigation by letter of February 6, 1992. Investigator Herron obtained copies of the medical records for four of the patients indicated in Dr. Freeman's complaint letter, which included records from Humana Hospital and Presidential SurgiCenter, Petitioner's surgical center. Investigator Herron interviewed Dr. Freeman, interviewed the Petitioner through his attorney, and interviewed the attorney representing Humana Health Care Plan. The Petitioner, through counsel, represented that any overbilling to Humana occurred due to errors in bookkeeping and accounting, and not through any fraud on the part of the Petitioner. Other documents obtained as part of this investigation included, but were not limited to, capitation agreements between Petitioner and Humana Medical Plan, Inc., and related court documents from civil litigation which transpired as a result of Petitioner's alleged breach of contract and unjust enrichment. Investigator Herron did not interview the employees of the Petitioner who handled the Petitioner's billing for professional services and for use of facilities. Humana's civil complaint against Petitioner, Case No. CL 90-8421 A B, alleged that Petitioner breached his contract with Humana and profited unfairly as a result, by performing surgeries and billing for same contrary to the provision of capitation agreements between the Petitioner and Humana. Humana claimed that the overbilling by the Petitioner totaled almost $400,000.00. On or about May 21, 1992, Investigator Herron compiled a report which was reviewed and approved by his supervisor on the same date. Settlement of the case between Humana and Petitioner was reached, and an Order of Dismissal was filed in that cause on September 23, 1991. The settlement called for Petitioner to pay Humana Medical Plan, Inc., a total sum of $210,000.00 over an approximate four-year period of time. This settlement was also to include a letter by Humana indicating that this case involved a contractual dispute based upon accounting procedures, and was not based upon allegations of fraud. 9/ Prior to the Probable Cause Panel meeting of July 29, 1992, the Department forwarded to the panel members copies of the complete investigative file regarding the Petitioner, along with a copy of the Department's recommendation in the form of a draft Administrative Complaint. Each panel member received and reviewed the materials related to this case prior to the Probable Cause Panel meeting. DPR Case No. 92-0666 was forwarded to the Probable Cause Panel with a recommendation that probable cause be found for an Administrative Complaint. Present at the July 29, 1992, Probable Cause Panel meeting were panel members Richard McEven, Chairman; Gerard Kaiser, M.D.; and Edward Dauer, M.D. Also present were M. Catherine Lannon, Esquire, from the Attorney General's office, Carlos J. Ramos, attorney for the Department of Professional Regulation, and Teresa Corley, also from the Department. Probable cause was found to exist unanimously by the Panel members, with Dr. Dauer noting that the proposed Administrative Complaint accurately represented "the facts of law at issue." Probable cause was found to exist that Petitioner violated the following statutory provisions: Section 458.331(1)(h), (k) and (n), Florida Statutes. On or about August 7, 1992, the Department initiated action against the Petitioner's license to practice medicine as directed by the Probable Cause Panel of the Board in DPR Case No. 92-0666, later DOAH Case No. 93-1307, through the filing of an Administrative Complaint. The Administrative Complaint filed on August 7, 1992, charged Petitioner with the following violations: filing false reports which the licensee knew to be false in that Petitioner billed patients' insurance carriers for use of his private surgical facility when, in fact, he did not use the facility to perform the surgeries and had agreed to provide services under a capitation agreement; by making deceptive, untrue, or fraudulent representations in or related to the practice of medicine or employing a trick or scheme in the practice of medicine in that Petitioner billed patients' insurance carriers for use of his private surgical facility when, in fact, he did not use the facility to perform the surgeries and had agreed to provide service under a capitation agreement; and exercising influence on a patient or client in such a manner as to exploit the patient or client for financial gain of the licensee or of a third party in that Petitioner billed patients' insurance carriers for use of his private surgical facility when, in fact, he did not use the facility to perform the surgeries and had agreed to provide services under a capitation agreement. At the time of the four surgeries that form the basis for the underlying Administrative Complaint, there was no capitation agreement between the Petitioner and Humana, because Humana had terminated the agreement. The materials presented to the original Probable Cause Panel included several documents, all apparently overlooked, which showed that the capitation agreement had been terminated and that the effective date of the termination was prior to the date of the four surgeries at issue in the Administrative Complaint. At the time of the four surgeries at issue in the underlying Administrative Complaint, an employee of Petitioner, Jeanne Gold, had the responsibility of billing for Petitioner's services and for the Presidential SurgiCenter facility fee. For each patient listed in the Administrative Complaint, Ms. Gold billed Humana a surgical facility fee for surgeries purportedly rendered by Petitioner at the Presidential SurgiCenter, even though the surgeries were actually performed at Humana Hospital. There were logical explanations for how the errors occurred, which explanations are set forth in affidavits from Jeanne Gold, Brenda Gruber, and Stephen Cohen. These affidavits which explain how the errors in billing occurred were not part of the materials reviewed by the original Probable Cause Panel, but the information contained in these affidavits could have been obtained prior to the original Probable Cause Panel meeting if the case has been adequately investigated. When the Petitioner was told that Humana believed he had incorrectly billed for the four surgeries at issue, he instructed his staff to inquire into the matter and take any necessary corrective action. The Petitioner subsequently made appropriate reimbursements to correct the subject billing errors. On or about September 14, 1993, Department legal counsel presented DPR Case No. 92-0666 to the Probable Cause Panel for reconsideration based upon information which indicated that Petitioner did not have a capitation agreement with Humana at the time of the subject surgeries and that the incorrect billing was simply an error, not an intentional or fraudulent act. Based upon the recommendation of Department legal counsel, the second Probable Cause Panel dismissed all charges against the Petitioner. The evidence presented to the original Probable Cause Panel was an insufficient basis upon which to find probable cause for the violations asserted in the Administrative Complaint. That evidence failed to contain evidence that would reasonably support a belief that the Respondent acted intentionally or fraudulently, and the evidence also affirmatively showed that some of the facts asserted in the Administrative Complaint were incorrect. Adequate investigation would have revealed that all of the incorrect billing alleged in the Administrative Complaint resulted from unintentional error, for which there was a logical explanation.
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 This is a rule challenge proceeding pursuant to Section 120.56, Florida Statutes, in which the Petitioner has challenged the validity of Rule 22A- 13.002(2), (3), and (4), Florida Administrative Code, as an invalid exercise of delegated legislative authority. The final hearing in this case was consolidated, for purposes of hearing only, with the final hearing in two related cases; namely, Case Nos. 87-5321 and 87-5437. At the final hearing all parties presented testimony and the Petitioner also offered six exhibits, all of which were received without objection. At the conclusion of the hearing, all parties agreed to a ten-day deadline for the filing of proposed orders. All parties have filed proposed orders containing proposed findings of fact and conclusions of law. The parties' proposed orders have been carefully considered during the preparation of this final order and specific rulings on all proposed findings are contained in the Appendix which is attached to and incorporated into this final order.
Findings Of Fact The Petitioner, Mr. Parsons, is employed by the Department of Health and Rehabilitative Services ("DHRS") as an "Assistant Mental Health Hospital Administrator." He is a career Service employee of the State of Florida. By memorandum dated October 23, 1987, Mr. Parsons submitted a "Notice Of Intent To Run For Local Political Office." The memorandum was directed to Mr. Parsons' supervisor, Mr. Britton D. Dennis. The memorandum sought approval from DHRS and from the Department of Administration ("DOA"), described the nature of the political office Petitioner is seeking, and described the working hours of the position and the salary. In the memorandum, Mr. Parsons stated that he would not campaign on job time, and would not make use of any of the state's facilities in regard to campaign activities. He also stated his intention to request a leave of absence and that he would resign from his current position with DHRS, if elected. The District Administrator of DHRS denied Mr. Parson's request for approval to become a candidate by letter dated October 30, 1987. The Administrator stated that the request was being denied "... because your candidacy would be in violation of Chapter 22A-13.002, Personnel Rules and Regulations, Florida Administrative Code, and Section 110.233(4), Florida Statutes." On October 30, 1987, Mr. Parsons' supervisor, Mr. Britton D. Dennis, indicated that he would deny the request for leave of absence because he felt that the position held by Mr. Parsons could not be vacant for an extended period of time. Mr. Parsons responded that he nonetheless desired to be a candidate for the local political office, and that he would not campaign on the job, nor use state facilities for campaign purposes. By letter dated November 5, 1987, the Secretary of DOA stated that she was unable to approve Mr. Parsons' request because it had been denied by DHRS, and because, if elected, the duties would be performed during assigned working hours. The Secretary of DOA cited DOA Rule 22A-13.002(4)(a) and (b), Florida Administrative Code. This proceeding ensued. Mr. Parsons filed a petition challenging the denial of his request by DHRS, a petition challenging the denial of his request by DOA, and a petition challenging the validity of the DOA rules that had been cited in support of the denials. Mr. Parsons is seeking to stand for election to the position of County Judge in Gadsden County, Florida. The position of County Judge is a full-time position. If elected, Mr. Parsons could not continue in his employment with DHRS. He has clearly stated that if elected he would resign from his employment with DHRS. The challenged rule provisions read as follows: 22A-13.002 Statements of Policy Section 110.233(4)(a) further provides that no employee shall hold or be a candidate for public or political office while in the employment of the state unless: The employee is seeking or holding a local public office and; Such candidacy and office is authorized by the employee's agency head and approved by the Department of Administration as involving no interest which conflicts or activity which interferes with his/her state employment. Candidacy for or holding a local public office shall be presumed to involve an interest which conflicts with an employee's state employment when the campaign or the office, if elected, is likely to give rise to a situation in which regard for a private or local interest tends to lead to a disregard of the employee's duty as a state employee. Candidacy for or holding local public office shall be presumed to involve activities which interfere with an employee's state employment in the following instances: The office is a full-time office. Campaign or, if elected, office activities are performed during the employee's assigned working hours with the State. Campaign or, if elected, office activities will involve the use of State space, personnel, time, equipment, or supplies. In its application of the challenged rule provisions, DOA reads those provisions in conjunction with Rule 22A-13.0031, Florida Administrative Code, regarding procedures. DOA has interpreted and applied the presumptions in the challenged rule provisions as rebuttable presumptions, rather than as conclusive presumptions. On at least one prior occasion since the challenged rule provisions went into effect, the DOA and the DHRS granted approval for an employee of DHRS to become a candidate for the office of County Judge without requiring resignation from state employment.
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 The issue in this proceeding is whether the Petitioner is entitled to recover attorney's fees and costs incurred in this proceeding pursuant to the provisions of Section 112.317(8), Florida Statutes, and if so, the amount of such attorney's fees and costs.
Findings Of Fact Petitioner, Gordon Sands (Petitioner or Mayor Sands), is and at all times material to this proceeding was mayor of the Town of Welaka, Florida (Town or Town of Welaka), having served in that position for four years. Initially, Petitioner was appointed mayor in May 1996, after the then-mayor resigned. In 1997, Petitioner ran unopposed for mayor and, in March 1999, he was re-elected. Respondent, Caron Speas (Respondent), is and has been a resident of the Town of Welaka for two years. Respondent, who has practiced law since 1981, considers herself a "watchdog" of the actions of the Town's local government. She is chair of and has been active in a local "political committee" currently known as Concerned Citizens for Public Integrity, Inc. Respondent's brother, Rand Speas, is also a resident of the Town of Welaka. During January to March 1999, Mr. Speas was running for a position on the Town Council at the request of his sister, Respondent. Mr. Speas lost his election campaign on March 3, 1999. During Mr. Speas' unsuccessful 1999 election campaign, Mayor Sands was running for re-election. Respondent was opposed to Petitioner's re-election bid and had actively opposed many of the official actions taken by Mayor Sands. Moreover, Respondent had openly expressed her dislike and dissatisfaction with the manner in which the Town of Welaka was governed and her opposition to the administration of Mayor Sands. On April 9, 1999, Respondent filed an amended ethics complaint (Amended Complaint) against Mayor Sands alleging that the mayor violated Section 112.313(6), Florida Statutes, by orchestrating a willful and deliberate violation of the public records laws in order to aid his re-election campaign. After an investigation and consideration of the Complaint and the Amended Complaint, the Ethics Commission issued an order finding that there was no probable cause to believe that the mayor had violated the Code of Ethics as alleged by Respondent and dismissing both the Complaint and the Amended Complaint. In this case, Petitioner asserts a right to attorney's fees and costs by reason of Respondent's filing the Amended Complaint. In the Amended Complaint made against Mayor Sands, Respondent submitted an Amended Statement of Facts, which stated: AMENDED STATEMENT OF FACTS During the months from January 1999 to March 1999, said party [Mayor Sands] did violate Florida Statute [sic] 112.313(6) by orchestrating a willful and deliberate violation of the public records laws for the purpose of aiding his re-election campaign. Said party did use his position as Mayor of the Town of Welaka (population approximately 600) to instruct the town clerk not to provide his political opponents with public records that contained information relating to campaign issues. On January 13, 1999, The Concerned Citizen's Group, a political committee opposing Mayor Sands [sic] bid for re-election, requested copies of very specific public records. The town clerk produced records which were wholly incomplete--rather than producing the audited financial statements that were requested, she produced only the balance sheets taken from the audited financial statements. When the deficiency was pointed out to her, she wrote a letter on February 16, 1999, improperly requesting a $100.00 deposit for the "extensive labor" involved in locating the records. When it was pointed out that she had already located the records because she copied the balance sheets from them, she finally had to accede to copying the audited financial statements that day. Over one month after they were requested. [sic] On January 22, 1999, The Concerned Citizen's Group, served a second written request for copies of very specific public records, to wit: grant applications. On February 16, 1999, the town clerk wrote the above- referenced letter improperly requesting a $100.00 deposit but did not object to the public nature of the records requested. When the $100.00 deposit was paid under protest, the records were nevertheless not forthcoming. One day before the election, The Concerned Citizen's Group was contacted and told it could pick up the records that afternoon. The records consisted of 11 pages for which the Concerned Citizen's Group was charged $66.50, or $6.60 per page. On January 22, 1999 Philip J. Cobb, campaign manager for Rand Speas, requested a copy of the Absentee Ballot Voter's List for the last two Welaka elections and did not receive the requested document until one day before the election. It was three pages long and he was charged 45 cents. On January 28, 1999, Edna Moore, a political opponent of the mayor, made a request for public records, (specifically: two ordinances, a permit, a receipt for equipment purchase, Minutes of a town council meeting, and employee work sheets for 4 months). Ms. Moore also received a letter requesting a $100.00 deposit, which she was unable to pay. The day after the election, Ms. Moore was told that her public records were ready for pick up. She was charged $39.75 for 115 copies, or 35 cents per page. On February 15, 1999, May Nigh, a member of the Concerned Citizen's Group, made a request for specific public records. Ms. Nigh also received a letter requesting a $100.00 deposit, which she was unable to pay. Ms. Nigh received the requested records a week after the election. The records consisted of 19 pages for which she was charged $31.25, or $1.64 per page. The excuses and explanations given for the delays in producing the above records were totally lacking in plausibility. Each of the persons who requested public records were [sic] told that the requests were either voluminous or could not be located and that the town clerk would have to work on the weekends to provide the records. The records that were ultimately produced were not "voluminous" and a former town employee, Irene Perrins, (who has a lifetime of experience in office work) has indicated verbally to the complainant that there is not enough work at town hall to keep the town clerk busy for more than 3 hours a day, let alone on the weekends. The statute cited by Respondent and the facts alleged in support of her charges comprise a specific accusation by Respondent that Mayor Sands, a public officer of the Town of Welaka, corruptly used his official position by orchestrating a willful and deliberate violation of public records laws in order to secure a special privilege or benefit for himself by directing the Town Clerk not to provide his political opponents with requested records. At the time Respondent completed and filed the Amended Complaint, she had no personal knowledge that Mayor Sands had, in fact, "orchestrated a willful and deliberate violation of the public records laws for the purpose of aiding his re-election campaign." Respondent relied on statements of three individuals in making the charge against Mayor Sands contained in the Amended Complaint. First, according to Respondent, Grace Evans, a former member of the Town Council of the Town of Welaka, told Respondent that Mayor Sands totally controls and directs the activities of the Town Clerk, Renee Peterson. Next, Virgil Posetti, a political ally of Rand Speas and the political opponent of Mayor Sands in the 1999 election, allowed Respondent to tape a statement in which Posetti stated that Mayor Sands controls what goes on in Town Hall and supervises the Town Clerk. Finally, in a telephone conversation initiated by Respondent, Eileen Perrins, a former town employee who was fired, told Respondent that the Town Clerk had only three or four hours of work to do during the work day. Respondent put credence in Ms. Evans' statements because Respondent believed that Ms. Evans knew Mayor Sands well. Respondent testified that Ms. Evans had formerly served on the Town Council under Mayor Sands but resigned from the Council "saying that Mayor Sands violates the Sunshine Laws regularly." Respondent apparently believed the statements made by Posetti because he had been a former member of the Town Council. However, it is significant that at the time the public records requests were made to the Town Clerk, Posetti was not a member of the Town Council, was not active in Town Hall, and did not work in Town Hall. Moreover, prior to and at the time Respondent filed the Amended Complaint, she was aware that Posetti was running against Mayor Sands for mayor of the Town of Welaka. Lastly, Respondent apparently believed the statements of Ms. Perrins because Perrins had previously worked in Town Hall as an employee of the Town. Respondent relied on Ms. Perrins' statements although she knew or believed that Perrins had been fired from her job with the Town. Respondent's reliance on any statements made by Evans, Posetti, or Perrins was not well-founded. By her own testimony, Respondent was aware that the statements by these individuals should be weighed carefully in light of their likely biases against Mayor Sands. Moreover, there was no evidence that Evans, Posetti, or Perrins worked at Town Hall or were aware of or had any knowledge of what was going on in Town Hall at the time the subject public records request were made. Finally, Respondent acknowledged that none of the aforementioned individuals ever told her that Mayor Sands had orchestrated a willful and deliberate violation of the public records laws. Respondent also based the charges in the Complaint on the chronology--the dates the public requests were made; the information that was requested; the length of time she believed it reasonably should have taken to produce the documents; the time it actually took to produce the documents; and the dates that the records were actually produced. In summary, Respondent testified that the basis for the charges she made in the Amended Complaint was as follows: [W]hat I was hearing around town, what I was hearing from former council people, what I heard from Irene Perrins in the telephone conversation I had with her and the timing of the requests, the demands for $100 deposits, and the actual production of documents and what was produced. The totality of the circumstances is the reason this complaint was filed. (Transcript, pages 71-71). Respondent was "upset" and "outraged" when some of the public records requests were not responded to in the time frame and manner that she thought was reasonable. As a result, after the March 1999 election, she filed the Complaint against Mayor Sands. Respondent chose to file the Complaint against Mayor Sands although she knew that all the subject public records requests had been directed to the Town Clerk and/or the Town Custodian of Records. The only Town official with whom Respondent communicated regarding the subject public records requests was Renee Peterson. However, Respondent believed Mayor Sands was a "dictator" in that he "controls" and "runs everything" at Town Hall. In light thereof, Respondent believed that Ms. Peterson was delaying and withholding production of documents at the direction of Mayor Sands. Despite Respondent's belief that Mayor Sands controlled everything at Town Hall, including responses to public records requests, she never communicated with him about the delay in the Town Clerk's responding to the subject public records requests. In fact, Respondent has never had a conversation with Mayor Sands. At all times material to this proceeding, Renee Peterson was the Town Clerk and Custodian of Records for the Town of Welaka, having been employed in that position since September 1998. Among her various duties, Ms. Peterson was responsible for keeping and providing public records for review and copying such records upon request. In that connection, the Town of Welaka has a duly-adopted ordinance establishing a procedure for Ms. Peterson to follow. At all times relevant to this proceeding, Mayor Sands was charged with supervising the Town Clerk, Ms. Peterson. When Ms. Peterson was first employed, Mayor Sands instructed Ms. Peterson to refer any questions about public records to the Town's attorney or to use the "Sunshine Manual." However, the mayor was not involved in and did not direct the day-to-day work activities of Ms. Peterson. Ms. Peterson used her discretion in establishing and accomplishing her job priorities. Between approximately January 13 and March 9, 1999, Ms. Peterson received at least 13 public records requests from the Concerned Citizens Group and several individuals. Ten of the thirteen public records requests were made in January 1999 and some required research back to 1990. In January 1999, when ten of the public records requests were made, Ms. Peterson had been employed as Town Clerk for only three or four months. Given her varied responsibilities as Town Clerk, the number and the volume of the public records request, and the extensive research required to comply with some of the public records requests, Ms. Peterson took several weeks to respond to several of the public records requests. In instances when Ms Peterson determined that there would be some delay in fully responding to the requests, she wrote letters to the appropriate individuals and informed them of the status of their public records requests. Subsequently, with the help of two other people, Ms. Peterson worked seven hours one Saturday to satisfactorily respond to the public records requests. Respondent testified that the public records requests were relevant to campaign issues in the March 1999 election. However, none of the persons who had made the subject public records requests ever complained to Ms. Peterson about the time frame within which she responded to their public records requests. Furthermore, when the requests were made and after they received letters advising them of the status of their requests, none of the individuals advised Ms. Peterson that the requested records were needed by a date certain. Ms. Peterson did not think in terms of the subject public requests as related to the election. She simply thought of them as public records requests. Under all the circumstances, there was no unreasonable delay in her response to those public records requests. Ms. Peterson testified credibly that she never told Mayor Sands that the subject public records requests had been made; that Mayor Sands never orchestrated any willful or deliberate violation of the public records law; and that the mayor never instructed her not to provide his political opponents with public records that contained information relating to campaign issues or to delay providing such records to his political opponents. Mayor Sands' credible testimony was that Ms. Peterson never advised him that she had received the subject public records requests and that he never instructed her not to provide his political opponents with public records or to delay providing such records to his political opponents. Mayor Sands' credible testimony was that he first heard about problems concerning an individual's obtaining public records at a political rally two weeks before the March 1999 election. While at that rally, he heard Posetti, his opponent in the election, and Edna Moore, make statements that Ms. Moore could not get public records that she desired. Neither Posetti nor Ms. Moore accused Mayor Sands of interfering with Ms. Moore's getting the records. However, after hearing these complaints, Mayor Sands asked the former Town Clerk and a former Town Council member who had served as assistant records keeper to assist Ms. Peterson in responding to the public records requests. Soon thereafter, all records were produced. Respondent acknowledged that no one told her that Mayor Sands orchestrated a willful and deliberate violation of the public records law to assist his re-election campaign. Rather, in filing the Amended Complaint, Respondent relied on statements made to her by individuals who were obviously biased against Mayor Sands and whose statements, even if true, do not support the charge that the mayor orchestrated a willful and deliberate violation of the public records law for the purpose of aiding his re-election efforts. Respondent had no first-hand knowledge of any facts that would reasonably support the charge she made against Mayor Sands in the Amended Complaint. In absence of such knowledge, Respondent relied on the statements of Ms. Evans, Ms. Perrins, and Mr. Posetti and on Respondent's conclusion that the chronology of events related to the public records was evidence that Mayor Sands: (1) orchestrated a willful and deliberate violation of the public records law for the purpose of aiding his re-election campaign; and (2) instructed the Town Clerk not to provide his political opponents with public records that contained information relating to campaign issues. Contrary to Respondent's beliefs, the aforementioned statements and the chronology of events relative to the public records requests do not support or provide a reasonable basis for charges against Mayor Sands in the Amended Complaint. The allegations and statements of fact in the Amended Complaint are mere conjecture and surmise. Based on the foregoing, Respondent filed the Amended Complaint with a malicious intent to injure the reputation of Mayor Sands and with reckless disregard for whether said Amended Complaint contained false allegations material to a violation of the Code of Ethics. In defending himself against the allegations in the Complaint and in this proceeding, Petitioner has been represented by Allen C. D. Scott, II, Esquire. Mr. Scott's hourly rate is $125.00. Prior to the final hearing, Mr. Scott expended 43 hours on this matter and a related case, McGuire v. Speas, DOAH Case No. 00-0267FE, Recommended Order issued August 24, 2000. One- half of that time is attributable to the instant case. The hourly rate of $125.00 billed by Mr. Scott is reasonable. Likewise, the pretrial time of 21.80 hours expended in this matter is reasonable. Accordingly, the attorney's fee of $2,725.00 incurred is reasonable. Judith Ginn, Esquire, an attorney who has practiced law in the state of Florida since 1974, testified as an expert witness in this case. Ms. Ginn's hourly rate of $150.00 is reasonable. The reasonable cost of Ms. Ginn's expert witness services in this case and in the companion case is $650.00.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that: The Ethics Commission enter a final order finding that Respondent, Caron Speas, is liable for attorney's fees of $2,725.00 and costs of $325.00; and The Ethics Commission award fees and costs which were incurred on the day of and after the administrative hearing. DONE AND ENTERED this 5th day of September, 2000, in Tallahassee, Leon County, Florida. CAROLYN S. HOLIFIELD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 5th day of September, 2000. COPIES FURNISHED: Allen C. D. Scott, II, Esquire Scott & Scott 101 Orange Street St. Augustine, Florida 32084 Peter Ticktin, Esquire Scholl, Ticktin, Rosenberg, Glatter & Litz, P.A. Net First Plaza 5295 Town Center Road, Third Floor Boca Raton, Florida 33486-1080 Sheri L. Gerety, Complaint Coordinator and Clerk Commission on Ethics 2822 Remington Green Circle, Suite 101 Post Office Drawer 15709 Tallahassee, Florida 32317-5709 Bonnie J. Williams, Executive Director Commission on Ethics 2822 Remington Green Circle, Suite 101 Post Office Drawer 15709 Tallahassee, Florida 32317-5709 Philip C. Claypool, General Counsel Commission on Ethics 2822 Remington Green Circle, Suite 101 Post Office Drawer 15709 Tallahassee, Florida 32317-5709
The Issue The issues presented for determination are whether Respondent violated Subsections 106.11(3) and 106.19(1)(d), Florida Statutes, as alleged in the Order of Probable Cause dated May 22, 2001, and the Statement of Findings dated April 3, 2001.
Recommendation It is recommended that the Florida Elections Commission enter a final order dismissing all charges against Petitioner, Bruce Grady. DONE AND ENTERED this 26th day of November, 2001, in Tallahassee, Leon County, Florida. JEFF B. CLARK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 26th day of November, 2001. COPIES FURNISHED: Mark Herron, Esquire Mark Herron, P.A. 215 South Monroe Street, Suite 701 Tallahassee, Florida 32301 Eric M. Lipman, Esquire Florida Elections Commission The Capitol, Room 2002 Tallahassee, Florida 32399-1050 Barbara M. Linthicum, Executive Director Florida Elections Commission The Capitol, Room 2002 Tallahassee, Florida 32399-1050 Patsy Rushing, Clerk Florida Elections Commission The Capitol, Room 2002 Tallahassee, Florida 32399-1050
