The Issue Whether Petitioner violated the Florida Election Code as alleged in the Order of Probable Cause entered November 25, 2002.
Findings Of Fact Chapters 97 through 106 comprise the Florida Election Code (Code). Pursuant to the Code, the Commission is specifically empowered to enforce the provisions of Chapters 104 and 106, Florida Statutes. Mr. Smith is a principal in Smith Brothers Paint and Body Shop and runs the daily operations of the business. In addition to painting and repairing motor vehicles, he has a wrecker service. He ran for county commission in Escambia County in 1996 but was not elected. He ran again in 2000 and was successful. Allegations of impropriety surrounding the 2000 race caused the Commission to conduct an investigation into Mr. Smith's campaign practices. When Mr. Smith ran for the position of county commissioner in 1996, his campaign treasurer was Lance Simmons. Mr. Simmons was a certified public accountant and Mr. Smith's friend. Mr. Simmons provided this service at no charge. The campaign financing reports prepared by Mr. Simmons were correct and professional. Lynn Kowalchyk, Assistant Supervisor of Elections in Escambia County, who has worked for the Supervisor of Elections in Escambia County for 25 years, opined that the submissions for that campaign were some of the best the Supervisor of Elections has received. Because Mr. Smith lost the election, he felt too embarrassed to ask Mr. Simmons to serve as his campaign treasurer for the 2000 race. He decided that he would serve as his own treasurer. Mr. Smith ran for county commissioner in District 5, which is the largest district in Escambia County, Florida. The district comprised the northern part of the county, which is more sparsely settled than the other districts in the county. In fact, District 5 comprises about 70 percent of the landmass of Escambia County. A great distance must be traveled to get from Mr. Smith's business to most places in the district and from place to place in the district. Mr. Smith decided that it was more important to engage in person-to-person campaigning in his large district than to spend time doing the detailed work of learning the complexities of the election laws, complying with the laws, and submitting correct reports. Mr. Smith received the 2000 edition of the "Candidate Handbook on Campaign Financing," which was published by the Florida Department of State. He had previously received the 1996 handbook. He signed statements in 1995 and 1999 certifying that he had read and that he understood the material presented in the handbooks. His testimony that he did not read either of them is accepted as fact. Mr. Smith had worked on one of his own campaigns and on other campaigns and felt as though he already knew all he needed to know about election laws. He concluded that if he needed additional information, he could get it from staff in the Supervisor of Elections Office. Mr. Smith first filed as a candidate for the 2000 election on October 20, 1999. Subsequent to filing he received at least ten notices from the Supervisor of Elections Office that members of the office staff were available to advise him with regard to the rules governing elections. Mr. Smith's routine during the campaign was to work at his place of business in the morning and then to go to his district and conduct his campaign. He gave documentation recording contributions and expenditures to his elderly mother, a widow of 65 years. His mother kept notes on a legal pad and organized the documents so that they could be reported. Mr. Smith's mother had cancer, heart problems, and arthritis and this may have affected her accuracy in preparing reports. Mr. Smith was unaware of the serious nature of her illnesses during the time she was working on the campaign. Mr. Smith's mother died December 11, 2002. Mr. Smith's brother also helped with the campaign records. He was a schoolteacher, and each evening during the campaign he would help Mr. Smith. His brother died one week after Mr. Smith's electoral victory. Counts 1-4. Allegations involving Section 106.021(3) prohibiting expenditures from other than the campaign treasury (Counts 1-4). (Count 1). On October 10, 2000, Mr. Smith purchased stamps from the U. S. Post Office. A check in the amount of $495 was presented in payment. The check was drawn on the checking account of a company titled Environmentally Friendly Chemicals (EFC), of which Mr. Smith is a part owner. This occurred because Mr. Smith inadvertently picked up the EFC checkbook instead of the campaign checkbook. Mr. Smith's inattention was the cause of the error. The campaign subsequently reimbursed EFC. (Count 2). Campaign check 2088 was written to Frankie Peters in the amount of $50 to reimburse Ms. Peters who had paid for a sign at the Tate High School ballpark. Mr. Smith permitted this because the sign could not have been timely purchased if it had been paid with a check from the campaign treasury. (Count 3). Someone named Nacie Smith paid for postage in the amount of $150 on behalf of the campaign during October 2000. Campaign check number 2115 was used to reimburse Ms. Smith, and Mr. Smith signed this check. (Count 4). Mr. Smith had printing done for the campaign by a firm named Pengraphix pursuant to an order placed October 31, 2000. This order was placed immediately prior to the election. Part of the order was paid from the campaign account in the amount of $852.97. The balance was in dispute but was eventually compromised in the amount of $1,884.92. This amount was paid not from the campaign account, but rather, directly to Pengraphix by a friend named Donald "Mike" Murphy. The payment by Mr. Murphy was effected after the campaign had concluded. Mr. Murphy was a person to whom Mr. Smith had provided a loan several years prior to 2000. These four transactions are expenditures that were not paid from the campaign treasury. However, as will be discussed in the Conclusions of Law in more detail below, the accidental use of the EFC checkbook in Count 1, did not demonstrate willfulness. Count 5. Allegation involving Section 106.021(3) prohibiting a candidate from receiving contributions except through the campaign treasurer. This allegation is supported by the evidence recited above regarding Mr. Murphy, if one concludes that the money provided to Pengraphix represented a contribution as that term is defined in Chapter 106, Florida Statutes. Whether or not the facts support a finding that the cited statute prohibited this transaction is discussed in the Conclusions of Law, below. Counts 6-29. Allegations involving Section 106.05 requiring funds received to be deposited within five days of receipt. Mr. Smith reported 20 contributions on his Campaign Treasurer's Report (CTR), which covered the period October 20, 1999 through December 31, 1999. One of the contributions described by Mr. Smith as being a $500 check, was later reported, in an amended CTR, to be five separate $100 cash contributions. The campaign bank account was not opened until January 7, 2000, and the last contribution reported on the CTR was November 29, 1999. Therefore, 24 contributions were received but not deposited in the campaign account until more than five days subsequent to receipt. Mr. Smith was unaware of the statutory requirement that contributions must be deposited in the campaign treasury within five days of receipt. However, his willful ignorance of the requirement translates into willful violations. Counts 30-79. Allegations involving Section 106.07(5) prohibiting a candidate from certifying to the correctness of a campaign treasurer's report that is incorrect, false, or incomplete. Mr. Smith filed original CTRs for the following periods: (Count 30) October 20, 2000 to December 31, 1999. (Count 31) January 1, 2000 to March 31, 2000. (Count 32) April 1, 2000 to June 30, 2000. d. (Count 33) July 1, 2000 to July 31, 2000. (Count 34) July 29, 2000 to August 11, 2000. (Count 35) August 12, 2000 to August 31, 2000. (Count 36) September 1, 2000 to September 8, 2000. (Count 37) September 9, 2000 to September 28, 2000. (Count 38) September 29, 2000 to October 13, 2000. (Count 39) October 14, 2000 to November 2, 2000. (Count 40) November 2, 2000 to December 31, 2000. He filed amended CTR's on January 12, 2000 (Count 41), April 19, 2000 (Count 42), and August 16, 2000 (Count 43). When a complaint that Mr. Smith had violated the laws governing campaign financing was filed against him in September 2001, he became motivated to try to correct CTR's that he had filed. He filed amended CTRs on September 24, 2001, October 18, 2001, April 2, 2002, April 24, 2002, and June 5, 2002 (Counts 44-79). He filed a total of 11 CTRs and 39 amendments. The parties stipulated, and it is found as a fact, that all of the original CTRs he filed, and all of the amendments he filed, were incomplete or incorrect. Mr. Smith worked diligently with Ms. Kowalchyk to correct the reports, once he discovered in September 2001, that he had been accused of wrongdoing. Ms. Kowalchyk worked on Mr. Smith's CTRs on her own time. Even Bonnie Jones, the Supervisor of Elections, attempted to correct his CTRs, but all were frustrated in the attempt. His reports were in complete disarray. Ms. Jones suggested in a letter dated October 8, 2001, that Mr. Smith refer this matter to his accountant, believing that an accountant might bring order to the chaotic records. He did not act on this advice. As noted above, Mr. Smith relied on his mother and his brother, and perhaps other family members to prepare accurate reports. Nevertheless, he was the campaign treasurer and he personally signed each CTR beneath bold face type which recited, "It is a first degree misdemeanor for any person to falsify a public record (ss.839.13 F.S.)" and despite the words over the signature line, where he placed his signature, which stated, "I certify that I have examined this report and it is true, correct and complete." It is specifically found that Mr. Smith's submission of incorrect CTRs was not motivated by an intention to hide any wrongdoing. His dereliction was due, rather, to a cavalier attitude with regard to complying with the technical aspects of the laws addressing campaign financing. This attitude continued until a complaint was filed. For reasons more fully explained in the Conclusions of Law, it is found as a fact that Mr. Smith is guilty of Counts 30-43, and not guilty of Counts 44-79. Counts 80-81. Allegations involving Section 106.11(3) prohibiting a candidate from incurring an expense for the purchase of goods or services without sufficient funds on deposit in the primary campaign depository. Although the Order of Probable Cause indicates that Mr. Smith was charged under Section 106.11(4), he should have been charged under Section 106.11(3) the Code in effect during the alleged misconduct. The wording of Section 106.11(4), Florida Statutes (2002), is identical to that found in Section 106.11(3). Because all parties understood the nature of the charge, the citation to a later version of the Florida Statutes does not mean that Mr. Smith may not be found to be in violation of it. Reference to the Statement of Findings reveals that the two counts alleged refer to services provided by Pengraphix, which is a printing house. The CTR for the period November 2, 2000 to December 31, 2000, reported two expenditures made to Pengraphix. One was for $864.49 and the other was for $1844.19, and both were reported on the CTR to have been made December 1, 2000. Subsequently, an amended CTR was filed September 24, 2001, which reported only an expenditure of $864.49 to Pengraphix. On June 5, 2002, in the fifth amendment to the termination CTR, Mr. Smith reported an expenditure on December 1, 2000, of an additional $1844.19, to Pengraphix. It is concluded from these reports that two obligations of $864.49 and $1844.19, for a total of $2708.68, were incurred in favor of Pengraphix. Because the bank records of the campaign account subsequent to December 1, 2000, reflect no expenditure in either individual amount, or in the aggregate amount, it may be concluded that the debt was not paid from the campaign account at all. The bank statement for the campaign treasury for the months of December 2000 and January 2001 never had a balance greater than $613.97 in it, so there was no money available from that source to pay the two expenditures. Mr. Smith addressed the foregoing by stating that there was a disputed bill from Pengraphix in the amount of about $2,600, and that he spent almost three months attempting to reach a settlement. The amount was compromised at $1,850. Mr. Smith further stated that when the printing was ordered the cost was not revealed. It must be concluded that until the amount was liquidated, Mr. Smith could not pay the bill. However, Mr. Smith must have known by December 1, 2000, that the liquidated amounts for the two jobs were $864.49 and $1844.19. At the time the jobs were ordered, which cannot be determined from the evidence, funds sufficient to pay the invoices may have been available. The evidence was insufficient to demonstrate with any certainty that the funds were not available. Accordingly, is not found by clear and convincing evidence that the money due and owing Pengraphix was not available in the campaign treasury at the time the debt was incurred. Accordingly, Mr. Smith is not guilty of Counts 80 and 81. Counts 82-83. Allegations involving Section 106.11(3), requiring a candidate to pay for previously incurred expenses for the purchase of goods and services upon delivery and acceptance of the goods and services. Reference to the Statement of Findings reveals that these two counts address the two orders for printed matter placed at Pengraphix. It is clear that these purchases were not paid at the time of delivery and acceptance. However, the proof adduced at the hearing failed to demonstrate when the amounts were liquidated. It is clear, however, that at some point prior to December 1, 2000, the amounts were known, or at least discoverable, and therefore payable. It is found by clear and convincing evidence that Mr. Smith violated the charged portion of Section 106.11(3). Accordingly, he is guilty of Counts 82-83. Count 84. Allegation involving Section 106.141(1) condemning the failure of a candidate to properly dispose of surplus campaign funds subsequent to being elected. The general election that resulted in Mr. White's victory was held November 7, 2000. The ending balance shown on the campaign treasury bank statement on November 30, 2000, was $613.97. The ending balance shown on the campaign treasury bank statement on December 29, 2000, was $597.97. The ending balance shown on the campaign treasury bank statement on January 31, 2001, was $4.78. The imposition of bank fees on February 9, 2001, resulted in a zero balance in the account that was reflected on the February 2001 statement. The ninetieth day following Mr. Smith's election was February 5, 2001. Though de minimis, a violation of the statute occurred, and he is guilty of Count 84. Counts 85-87. Allegations involving Section 106.141(1) prohibiting a candidate from accepting a contribution subsequent to being elected. Bank records of the campaign treasury indicate that a deposit to the account was made on January 2, 2001, in the amount of $187, and on January 3, 2001, in the amount of $100, almost two months after the election. An amendment to the CTR for the period November 2, 2000 to December 31, 2000, which was filed April 24, 2002, indicates that the candidate loaned the campaign $287. Mr. Smith explained that the two deposits were made so that a campaign debt could be paid. The sum of the two contributions plus the amount remaining in the account, $597.97, totaled $884.97 that was sufficient to cover a check for $864.19, which was, in Mr. Smith's words, ". . .payment of the substantial debt, $864.19." To what substantial debt he refers cannot be determined from the evidence of record but it is within 30 cents of the amount of the smaller of the two Pengraphix amounts reported as expenditures on December 1, 2000. In January 2001, a sum of money remained to be paid to Pengraphix. As noted above, this debt was compromised in the amount of $1,850. Mr. Smith did not have personal funds available to pay that amount, or money in the campaign treasury sufficient to pay that amount, so he prevailed upon his friend, Mr. Murphy, to pay the amount for him, and promised to repay Mr. Murphy with interest. Mr. Murphy did in fact pay Pengraphix $1884.92 to settle the debt owed by Mr. Smith. The difference between $1850 and the $1884.92 actually paid, most likely represents accrued interest. This payment was made, according to the Stipulation, on January 11, 2001. Mr. Smith repaid Mr. Murphy, by check in February 2002 in the amount of $1990. The exact day in February was not written on the date line on the check, but it cleared the bank on February 25, 2002. Whether or not these allegations of Counts 85-87 are supported by the cited statute, will be discussed in the Conclusions of Law, below. Count 88. Allegation involving Section 106.19(1)(a), prohibiting a candidate from accepting a contribution in excess of $500. This count addresses the payment by Mr. Murphy to Pengraphix discussed above. Whether or not the cited statute supports these allegations will be discussed in the Conclusions of Law, below. Count 89. Allegation involving Section 106.19(1)(b), condemning the failure of a candidate to report a contribution. This count addresses the payment by Mr. Murphy to Pengraphix discussed above. The transaction was not reported on any CTR with Mr. Murphy's name connected to it. Whether or not the cited statute supports these allegations will be discussed in the Conclusions of Law, below. Count 90. Allegation involving Section 106.19(1)(c), condemning the failure of a candidate to report a contribution. This count addresses the payment by Mr. Murphy to Pengraphix discussed above. The transaction was not reported on any CTR. Whether or not these allegations are supported by the cited statute will be discussed in the Conclusions of Law, below. Counts 91-94. Allegations involving Section 106.19(1)(d), prohibiting a candidate from making an expenditure prohibited by Chapter 106. These counts address the same facts pertinent to the events discussed in paragraphs 11-15, above. These facts support three violations of Section 106.021(3), as well as the three violations of Section 106.19(1)(d), as alleged. They are, however, multiplicious with three of the allegations recited as Counts 2-4. Mr. Smith's assets. Mr. Smith reported a net worth of $707,609, on his "Full and Public Disclosure of Financial Interests 1999." He testified that as a result of criminal charges and the current litigation, his net worth has decreased since 1999. He currently owns two parcels of real property worth more than $200,000 that is subject to mortgages in an unknown amount. He owns several vehicles including a 1995 Chevrolet Tahoe that he drives, and a new Chevrolet Yukon that his wife drives. He also owns a tow truck that is used in his business. His net worth cannot be determined by the evidence before the Administrative Law Judge. However, it is determined that he is not impecunious.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED: That a final order be entered which finds that Mr. Smith committed 44 of the violations alleged in the Order of Probable Cause and that he should be assessed a civil penalty of $5,000. DONE AND ENTERED this 25th day of June, 2003, in Tallahassee, Leon County, Florida. HARRY L. HOOPER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 25th day of June, 2003. COPIES FURNISHED: Robert R. Kimmel, Esquire Kimmel & Batson Post Office Box 12266 Pensacola, Florida 32581-2266 Eric M. Lipman, Esquire Florida Elections Commission 107 West Gaines Street The Collins Building, Suite 224 Tallahassee, Florida 32399-1050 Barbara M. Linthicum, Executive Director Florida Elections Commission 107 West Gaines Street The Collins Building, Suite 224 Tallahassee, Florida 32399-1050 Patsy Ruching, Clerk Florida Elections Commission 107 West Gaines Street Collins Building, Suite 224 Tallahassee, Florida 32399-1050
Findings Of Fact On May 30, 2008, FEC entered an Order of Probable Cause charging Respondent with the following violations: Count 1: On or about January 10, 2007, Respondent violated Section 106.07(1), Florida Statutes, when he failed to file with the filing office his 2006 Q4 CTR due on that date, listing all contributions received and all expenditures made, by or on behalf of the candidate. Count 2: On or about May 7, 2007, Respondent violated Section 106.141(1), Florida Statutes, by failing to properly dispose of surplus campaign funds within 90 days after he was eliminated and to file a report reflecting the disposition of those funds, when Respondent failed to qualify between January 30, 2007 and February 6, 2007, and failed to dispose of funds in his campaign account and file a report reflecting the disposition of the funds on or before May 7, 2007. On or about December 16, 2008, Respondent was personally served with the Order of Probable Cause by process server. Because Respondent neither elected to have a formal or informal hearing conducted before FEC nor elected to resolve the complaint by consent order within 30 days after the date of the filing of FEC's allegations, on January 30, 2009, FEC referred the case to the Division of Administrative Hearings (DOAH), pursuant to Section 106.25(5), Florida Statutes (2007). The case was filed at DOAH on February 2, 2009. On February 6, 2009, Petitioner filed and served its First Requests for Admission upon Respondent. Respondent had 35 days, including time for mailing, to either admit or deny each of the Requests for Admission. Rule 1.370(a), Florida Rules of Civil Procedure provides: Each matter of which an admission is requested shall be separately set forth. The matter is admitted unless the party to whom the request is directed serves upon the party requesting the admission a written answer or objection addressed to the matter within 30 days after service of the request . . Thirty-five days from February 6, 2009, was March 13, 2009. Respondent failed to file a response to FEC's Requests for Admission by March 13, 2009. Additionally, Rule 1.370(b), Florida Rules of Civil Procedure, provides: Any matter admitted under this rule is conclusively established unless the court on motion permits withdrawal or amendment of the admission. On March 17, 2009, Petitioner filed its Motion for Summary Final Order, based on the unanswered Requests for Admission, and, therefore, based upon the conclusively established admissions of fact. Respondent filed no response in opposition to the Motion for Summary Final Order, as permitted by Florida Administrative Code Rule 28-106.204. On April 3, 2009, an Order to Show Cause was entered, requiring Respondent to show cause by April 10, 2009, why a Summary Final Order should not be entered against Respondent. Respondent did not file any response. The April 3, 2009, Order to Show Cause gave Respondent a final opportunity to dispute any or all facts, to set aside the Requests for Admission, or to otherwise show cause why the Motion for Summary Final Order should not be granted. Respondent has not shown good cause. Respondent's failure to provide a written answer or objection to FEC's Requests for Admission conclusively establishes the following determinative facts, which prove the charges herein:1/ Respondent signed a Statement of Candidate form for Jacksonville City Council, District 7, on June 8, 2005. Respondent filed an Appointment of Campaign Treasurer and Designation of Campaign Depository for Candidates (DS-DE-9) on or about June 8, 2005, designating himself as the treasurer of his campaign. Respondent did not file his 2006 Q4 Campaign Treasurer's report by January 10, 2007. Respondent received a Memorandum from Beth Fleet, Director of Candidate Administration, dated January 12, 2007, notifying him that he failed to file his 2006 Q4 Campaign Treasurer's Report that was due on January 10, 2007. Respondent received an April 27, 2007, Memorandum from Jerry Holland, Duval County Supervisor of Elections, notifying Respondent that he failed to file his 2006 Q4 Campaign Treasurer's Report that was due on January 10, 2007. Respondent's failure to file his 2006 Q4 Campaign Treasurer's Report is a violation of Section 106.07(1), Florida Statutes. Respondent's Termination Report (TR) was due on May 7, 2007. Respondent received a letter dated April 27, 2007, from Jerry Holland, Duval County Supervisor of Elections, notifying him that his TR was due on May 7, 2007. Respondent did not file his TR with the Duval County Supervisor of Elections by May 7, 2007. Respondent's failure to file his TR by May 7, 2007, is a violation of Section 106.141(1), Florida Statutes.
The Issue Whether or not Petitioner, James P. Appleman, "willfully" violated Subsections 106.021(3), 106.07(5), and Section 106.1405, Florida Statutes, as alleged by Respondent, Florida Elections Commission, in its Order of Probable Cause; and whether or not Petitioner, James P. Appleman, "knowingly and willfully" violated Subsections 106.19(1)(c) and (d), Florida Statutes, as alleged by Respondent, Florida Elections Commission, in its Order of Probable Cause.
Findings Of Fact Based on the testimony and demeanor of the witnesses, documentary evidence, record of proceedings, and the facts agreed to by the parties in the Joint Pre-hearing Stipulation, the following Findings of Fact are made: In 2000, Petitioner was reelected to the office of State Attorney, Fourteenth Judicial Circuit. Prior to his reelection in 2000, Petitioner had been elected to the same office in 1980, 1984, 1988, 1992, and 1996. Petitioner, on February 1, 1999, signed a Statement of Candidate indicating that he had received, read, and understood Chapter 106, Florida Statutes. During the 2000 campaign, Petitioner made the following purchases using his personal funds in the form of cash, check or charge upon his personal credit card: a. Purchase 1: 7/12/99 Down payment/purchase of vehicle- $525.00 b. Purchase 2: 7/12/99 Purchase of vehicle/tax and title-$602.85 c. Purchase 3: 1/07/00 Bay Pointe Properties-$100.35 d. Purchase 4: 1/13/00 Delchamps Liquors-$58.50 e. Purchase 5: 1/22/00 Delchamps Liquors-$135.10 f. Purchase 6: 1/22/00 Cafe? Thirty A-$144.11 g. Purchase 7: 1/30/00 Pineapple Willy's-$17.45 h. Purchase 8: 5/05/00 Skirt/Jones of New York-$104.00- blouse/Jones of New York-$63.00 i. Purchase 9: 5/09/00 Tie/Dillards-$30.00-tie/Dillards- $40.00-misc. Big & Tall/Dillards- $8.75 j. Purchase 10: 5/23/00 Blazer/Polo Store-$199.99-short sleeve shirt/Polo Store-$39.99- short sleeve shirt/Polo Store- $39.99-short sleeve shirt/Polo Store-$39.99-shorts/Polo Store- $29.99 k. Purchase 11: 5/05/00 Casual bottoms/Brooks Brothers- $34.90-casual bottoms/Brooks Brothers-$34.90 casual bottoms/Brooks Brothers-$34.90 l. Purchase 12: 5/05/00 Shorts/Geoffrey Beene-$24.99- shorts/Geoffrey Beene-$24.99 m. Purchase 13: 5/05/00 Sport coat/Dillards-$195.00 n. Purchase 14: Telephone expense-$23.49 o. Purchase 15: 8/11/00 Tie down/Wal-Mart-$19.96-security chain/Wal-Mart-$19.26 p. Purchase 16: 8/11/00 Trailer hitch ball-$16.99 q. Purchase 17: 8/12/00 Event admission-$60.00 r. Purchase 18: 8/23/00 Liquor purchase/Delchamps-$37.41 s. Purchase 19: 8/30/00 Gas purchase/Shop a Snack-$20.00 t. Purchase 20: 8/30/00 Event admission-$40.00 u. Purchase 21: 8/30/00 Event admission/DEC-$15.00 v. Purchase 22: 8/26/00 Sign charge-$20.64 w. Purchase 23: 8/30/00 Auto insurance charge-$100.00 x. Purchase 24: 9/02/00 Gas purchase/Happy Stores-$34.00 y. Purchase 25: 9/02/00 Campaign staff/meal/food-$140.00 z. Purchase 26: 9/04/00 Ice purchase/Winn Dixie-$6.36 aa. Purchase 27: 9/05/00 Gas purchase/Swifty Store-$25.00 bb. Purchase 28: 9/06/00 Meal purchase/ St. Andrews Seafood House-$27.52 cc. Purchase 29: 9/08/00 Posthole digger-$42.90 dd. Purchase 30: 9/08/00 Lunch for sign crew-$20.14 None of these purchases were individually listed on Petitioner's Campaign Treasurer's Reports. Petitioner was reimbursed for each of the above- referenced expenditures by a check written on the campaign account, which was listed as an expenditure on Petitioner's Campaign Treasurer's Reports filed with the Division of Elections as follows: Date Name and Address of Person Receiving Reimbursement Purpose Amount 07-17-99 Appleman, Jim PO Box 28116 Panama City, FL 32411 02-11-00 Appleman, Jim PO Box 28116 Panama City, FL 32411 Reimb. Cmpgn. Vehicle Expenses Reimb. Cmpgn. Expenses $1,127.85 $830.81 06-10-00 Appleman, Jim PO Box 28116 Panama City, FL 32411 08-07-00 Appleman, Jim PO Box 28116 Panama City, FL 32411 Reimb. Cmpgn. Expenses Reimburse vehicle & Phone exp. $1,000.00 $400.00 08-30-00 Appleman, Jim PO Box 28116 Panama City, FL 32411 09-08-00 Appleman, Jim PO Box 28116 Panama City, FL 32411 Reimbursement/ Campaign Expense Reimbursement Camp. Expense $670.51 $295.92 On July 18, 2000, a campaign check for $140.99 was written to Winn Dixie. This check was reported on Petitioner's Campaign Treasurer's Report with the purpose listed as being "Campaign Social Supplies." The Winn Dixie purchase included the following items: A cat pan liner. 4 cans of cat food. A box of dryer sheets. A package of kitty litter. f. A jug of laundry detergent. The total cost of these items was $33.88. Petitioner signed all of his Campaign Treasurer's Reports, certifying as to their accuracy. The July 18, 2000, purchases at Winn Dixie were made by Mrs. Appleman, Petitioner's wife, and were a result of an inadvertent error. Immediately realizing that she had purchased personal items with campaign funds, she brought the matter to Petitioner's attention. Petitioner took possession of the Winn Dixie cash register receipt for the purchases; on the receipt he circled the inappropriate purchases with a pen, noted the total amount of inappropriate purchases on the receipt adding his initials, submitted the cash register receipt to his campaign treasurer, and several days later wrote a check reimbursing the campaign for the inappropriate purchases. During the campaign, Petitioner made 30 purchases listed in paragraph 3, supra, with personal funds, i.e., cash, personal check, or personal credit card, for which he provided receipts, and sought and received reimbursement from campaign funds by campaign check. These 30 purchases were not individually reported as expenditures on Campaign Treasurer's Reports during the reporting periods during which the purchases were made, but were reported as reimbursements as reflected in paragraph 4, supra. No evidence was presented that suggested that Purchases 3-7, Purchase 14, Purchases 17-22, or Purchases 24-30 listed in paragraph 3, supra, were not for campaign-related purposes. During the April 1 through June 30, 2000, campaign reporting period, Petitioner purchased 16 items of clothing (listed in paragraph 3, supra, as Purchases 8-13) for which he received reimbursement from campaign funds by campaign check. Petitioner and his wife testified that these items of clothing were used exclusively for campaign functions and purposes. Admittedly, each of the items of clothing could be used for non- campaign functions and purposes. However, the Campaign Treasurer's Reports reflect that in excess of $1,100 of "campaign shirts" were purchased during the campaign, supporting Petitioner's contention that he, his wife and campaign workers were all attired, while campaigning, in a color-coordinated "uniform of the day": red shirts, and tan/khaki trousers or walking shorts. This is further supported by photographs admitted into evidence. I find credible and accept the testimony of Petitioner and his wife that the items of clothing in the questioned purchases were used exclusively for campaign functions and purposes and not to "defray normal living expenses." During the August 12 through August 31, 2000, campaign reporting period, Petitioner purchased the following items for which he received reimbursement from campaign funds by campaign check: trailer hitch ball, trailer security chain, and sign tie-downs (listed in paragraph 3, supra, as Purchases 15 and 16). These three items were clearly used for campaign purposes and not to "defray normal living expenses." On August 30, 2001, Petitioner received a campaign check from the campaign treasurer reimbursing him for several campaign expenses he had paid. Among these campaign expenses, Petitioner sought reimbursement for $100 for "auto insurance" (listed in paragraph 3, supra, as Purchase 23). From the onset of his campaign, Petitioner had consistently either paid his automobile liability insurer, United Services Automobile Association, directly with a campaign check or sought reimbursement for payments he personally made for liability insurance on his personal vehicle or the "campaign Jeep" for automobile liability insurance cost attributable to the use of the motor vehicles in the campaign. Automobile liability insurance expense is a legitimate campaign expense and can reasonably be considered an actual transportation expense exempt from the statutory prohibition against payments made to "defray normal living expenses." On July 12, 1999, Petitioner purchased a 1997 Jeep to be used as a campaign vehicle (the down payment, tax and tag are listed in paragraph 3, supra, as Purchases 1 and 2); thereafter, loan payments to Tyndall Federal Credit Union and automobile liability insurance payments to United Services Automobile Association for the campaign vehicle were paid by the campaign treasury. On December 7, 1999, the 1997 Jeep was sold/traded to a third party for a 1999 Honda which was not used as a campaign vehicle. The Tyndall Federal Credit Union lien was transferred to the 1999 Honda. After December 7, 1999, the 1999 Honda was driven by Petitioner's adult stepdaughter. At the time of the transfer of the vehicles, Petitioner and his wife agreed that she would reimburse the campaign $800 which was determined to be the value lost by the campaign when the 1997 Jeep was traded. Petitioner later determined that he should reimburse the campaign an additional $525, the amount of the down payment paid when the 1997 Jeep was purchased in July 1999. On June 2, 2000, Petitioner's wife tendered a personal check drawn on her personal account to the campaign account for $800, which was reported under an entry date of June 5, 2000, on the Campaign Treasurer's Report for the period ending June 30, 2000, as a "REF" made by Petitioner. On March 14, 2001, Petitioner tendered a personal check to the campaign account for $617. This included $525 for the 1999 Jeep down payment reimbursement and an automobile liability insurance refund. Prior to the June 5, 2000, "REF" entry on the Campaign Treasurer's Report, there had been no report reflecting the sale of the campaign vehicle. The sale of the 1999 Jeep should have been reported on the Campaign Treasurer's Report for the period ending December 31, 1999; it was not. Petitioner certified that he had examined the subject Campaign Treasurer's Report and that it was "true, correct and complete" when, in fact, it was not as it did not reflect the sale of the campaign vehicle or the failure of Petitioner to pay the campaign treasury either $800 or $1,325, the amount Petitioner ultimately determined the campaign treasury should have been reimbursed as reflected by his late reimbursements.
Recommendation Based upon the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that the Florida Elections Commission enter a final order finding that Petitioner, James P. Appleman, violated Subsection 106.07(5), Florida Statutes, on one occasion and Subsection 106.19(1)(c), Florida Statutes, on one occasion and assess a civil penalty of $1,000 for the violation of Subsection 106.07(5), Florida Statutes, and a civil penalty of $2,400 for violation of Subsection 106.19(1)(c), Florida Statutes; and dismissing the remaining alleged violations of Chapter 106, Florida Statutes, against him as asserted in the Order of Probable Cause. DONE AND ENTERED this 15th day of April, 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 15th day of April, 2002. COPIES FURNISHED: David F. Chester, Esquire Florida Elections Commission 107 West Gaines Street Collins Building, Suite 224 Tallahassee, Florida 32399-1050 Mark Herron, Esquire Messer, Caparello and Self, P.A. Post Office Box 1876 Tallahassee, Florida 32302-1876 Barbara M. Linthicum, Executive Director Florida Elections Commission The Collins Building, Suite 224 107 West Gaines Street Tallahassee, Florida 32399-1050 Patsy Rushing, Clerk Florida Elections Commission The Collins Building, Suite 224 107 West Gaines Street Tallahassee, Florida 32399-1050
Findings Of Fact On November 3, 2015, Petitioner filed and served its First Request for Admissions upon Respondent by U.S. Mail and electronic mail. Florida Rule of Civil Procedure 1.370(a), which is adopted in Florida Administrative Code Rule 28-106.206, provides: Each matter of which an admission is requested shall be separately set forth. The matter is admitted unless the party to whom the request is directed serves upon the party requesting the admission a written answer or objection addressed to the matter within 30 days after service of the request . . . . Additionally, rule 1.370(b) provides that “[a]ny matter admitted under this rule is conclusively established unless the court on motion permits withdrawal or amendment of the admission.” Respondent neither responded to Petitioner’s First Request for Admissions nor sought relief from the matters deemed admitted by operation of law. Respondent’s failure to provide a written answer or objection to the Commission’s request for admissions conclusively establishes the following facts: Justice-2-Jesus is a political committee registered with the Division of Elections; Brian Pitts is the chairman and treasurer of Justice-2-Jesus; By letter dated December 14, 2007, Kristi Reid Bronson, Chief, Bureau of Election Records of the Division sent Brian Pitts, as chairperson of Justice- 2-Jesus, an acknowledgement that the organization, Justice-2-Jesus, had been placed on Petitioner’s list of active political committees that support issues; Brian Pitts, as chairperson of Justice-2-Jesus, received Kristi Reid Bronson’s December 14, 2007, acknowledgment letter; The 2013 Calendar of Reporting Dates was available on-line to Brian Pitts, as chairman and treasurer of Justice-2- Jesus, on the Division of Election’s website; The 2014 Calendar of Reporting dates for Political Committees/Independent Expenditures-Only Organizations that file with the Division of Elections was available on-line to Brian Pitts, as chairman and treasurer of Justice-2- Jesus, on the Division of Election’s website; Justice-2-Jesus’ 2013 Q1 Report was due on April 10, 2013; Brian Pitts, as chairman and treasurer of Justice-2-Jesus failed to file Justice-2-Jesus’ 2013 Q1 Report on April 10, 2013; Brian Pitts, as chairman and treasurer of Justice-2-Jesus failed to notify the filing officer in writing on April 10, 2013, that Justice-2-Jesus would not be filing a report for the 2013 Q1 reporting period; Justice-2-Jesus’ 2013 M11 Report was due on December 10, 2013; Brian Pitts, as chairman and treasurer of Justice-2-Jesus failed to file Justice-2-Jesus’ 2013 M11 Report on December 10, 2013; Brian Pitts, as chairman and treasurer of Justice-2-Jesus failed to notify the filing officer in writing on December 10, 2013, that Justice-2-Jesus would not be filing a report for the 2013 M11 reporting period; Justice-2-Jesus’ 2014 P5 Report was due on August 8, 2014; Brian Pitts, as chairman and treasurer of Justice-2-Jesus failed to file Justice-2-Jesus’ 2014 P5 Report on August 8, 2014; Brian Pitts, as chairman and treasurer of Justice-2-Jesus failed to notify the filing officer in writing on August 8, 2014, that Justice-2-Jesus would not be filing a report for the 2014 P5 reporting period; Justice-2-Jesus’ 2014 P6 Report was due on August 15, 2014; Brian Pitts, as chairman and treasurer of Justice-2-Jesus failed to file Justice-2-Jesus’ 2014 P6 Report on August 15, 2014; Brian Pitts, as chairman and treasurer of Justice-2-Jesus failed to notify the filing officer in writing on August 15, 2014, that Justice-2-Jesus would not be filing a report for the 2014 P6 reporting period; Justice-2-Jesus’ 2014 D2 Report was due on October 26, 2014; Brian Pitts, as chairman and treasurer of Justice-2-Jesus failed to file Justice-2-Jesus’ 2014 D2 Report on October 26, 2014; Brian Pitts, as chairman and treasurer of Justice-2-Jesus s failed to notify the filing officer in writing on October 26, 2014, that Justice-2-Jesus would not be filing a report for the 2014 D2 reporting period; Justice-2-Jesus’ 2014 D4 Report was due on October 28, 2014; Brian Pitts, as chairman and treasurer of Justice-2-Jesus failed to file Justice-2-Jesus’ 2014, D4 Report on October 28, 2014; Brian Pitts, as chairman and treasurer of Justice-2-Jesus failed to notify the filing officer in writing on October 28, 2014, that Justice-2-Jesus would not be filing a report for the 2014 D4 reporting period; Justice-2-Jesus’ 2014 M12 Report was due on January 12, 2015; Brian Pitts, as chairman and treasurer of Justice-2-Jesus failed to file Justice-2-Jesus’ 2014 M12 Report on January 12, 2015; and aa. Brian Pitts, as chairman and treasurer of Justice-2-Jesus failed to notify the filing officer in writing on January 12, 2015, that Justice-2-Jesus would not be filing a report for the 2014 M12 reporting period. One of the purposes of the disclosure requirements that Respondent failed to adhere to is to ensure that the public is appropriately informed that Respondent had no reportable contributions or expenditures during the 2013 Q1, 2013 M11, 2014 P5, 2014 P6, 2014 D2, 2014 D4, and 2014 M12 reporting periods. Respondent’s filing history with the Division of Elections (Division) demonstrates that Respondent knows how to use the Division’s electronic filing system (EFS), as it has previously filed documents using the system. See, e.g., Fla. Elec. Comm’n v. Brian Pitts, Treasurer for Justice-2-Jesus, Case No. 09-2806 (Fla. DOAH Oct. 7, 2009)(“Respondent testified that he has assisted several other persons in preparing and filing their electronic reports to the Division.”). In Florida Elections Commission v. Brian Pitts, Treasurer, Justice-2-Jesus, Case No. 10-9927 (Fla. DOAH Jan. 3, 2011; Fla. Elec. Comm’n May 24, 2011), the Commission entered a Final Order Imposing Fine in the amount of $1,000 due to Respondent’s failure to file a quarterly report of all contributions received. Through this case, Respondent was again reminded of the Division’s filing requirements. In both DOAH cases referenced above, the Commission filed in the Circuit Court of the Second Judicial Circuit, in and for Leon County Florida, petitions to enforce the final orders. On January 13, 2011, and October 1, 2012, the Circuit Court entered Final Judgments in favor of the Commission and against Brian Pitts, Justice-2-Jesus, for $2,362.50 and $2,426.30, respectively. Respondent has failed to satisfy the final judgments. Given Respondent’s previous course of dealings with the Division and the Commission, Respondent knew or should have known that it was required to notify the filing officer in writing on the prescribed due date that it would not be filing a report when Respondent had no reportable transactions during the applicable reporting periods. Respondent’s actions in this case were willful. At the hearing on the Amended Motion for Summary Final Order, Respondent asserted that Justice-2-Jesus is indigent, but offered no financial data to support the assertion.
The Issue Whether Freda Sherman Stevens (Respondent), a candidate in the 2008 primary for a seat in the Florida House of Representatives, willfully violated section 106.07(5), Florida Statutes (2008), by certifying that six of her campaign reports were true, correct, and complete when they were not. Whether Respondent willfully violated section 106.19(1)(c), Florida by falsely reporting, or deliberately failing to report information required to be reported by chapter 106, Florida Statutes (2008).1/
Findings Of Fact Respondent was a candidate for the House of Representatives, District 100, in the August 26, 2008, primary election. As a candidate for the Florida Legislature, the Division of Elections of the Florida Department of State (the Division), was Respondent's filing office, and Respondent was required to file all her reports electronically. On October 30, 2007, Respondent filed with the Division her Appointment of Campaign Treasurer and Designation of Campaign Depository form listing herself as treasurer for her 2008 campaign. On November 1, 2007, Ms. Bronson sent Respondent a letter acknowledging that Respondent had been placed on the 2008 active candidate list. The letter advised Respondent that all candidates filing reports with the Division were required to use the electronic filing system (EFS) and provided Respondent with a personal identification number (PIN) and initial password to grant access to the EFS. The user was expected to change the initial password after logging on for the first time. Ms. Bronson's letter included the following information: You, your campaign treasurer, and deputy treasurers are responsible for protecting these passwords from disclosure and are responsible for all filings using these credentials, unless the Division is notified that your credentials have been compromised. * * * Each campaign treasurer's report filed by means of the EFS is considered to be under oath by the candidate and campaign treasurer and such persons are subject to the provisions of Section 106.075(5), Florida Statutes. * * * An online guide is available to you on the EFS to assist with navigation, data entry, and submission of reports. The Division of Elections will also provide assistance to all users by contacting the EFS Help Desk at (850) 245-6240. All of the Division's publications and reporting forms are available on the Division of Election's web site at http://election.dos.state.fl.us. It is your responsibility to read, understand, and follow the requirements of Florida's election laws. Therefore, please print a copy of the following documents: Chapters 104 and 106, Florida Statutes; Candidate and Campaign Treasurer Handbook (September 2007 edition); 2007-2008 Calendar of Reporting Dates; and Rule 1S-2.017, Florida Administrative Code. When a campaign report is submitted electronically through the EFS, both the candidate and treasurer's PINs must be entered into the website. Though it is possible for either the candidate or the treasurer to give their PINs to another individual to enter the report on their behalf, the candidate remains responsible for the PINs and the filed reports. Respondent did little to educate herself as to her responsibilities as a candidate and as the treasurer for her campaign. She could not even remember whether she read Ms. Bronson's letter, and she did not remember whether she had read the handbook referred to by Ms. Bronson. Respondent did not attend any candidate trainings offered by the Broward County Supervisor of Elections Office. On November 21, 2007, Respondent resigned as treasurer and appointed her mother, Clementine Sherman, as her new treasurer. On December 5, 2007, Ms. Bronson sent a letter to Ms. Sherman, with a copy to Respondent, acknowledging Ms. Sherman's appointment as treasurer and providing the same information contained in Ms. Bronson's letter to Respondent dated November 1, 2007 (and discussed above). On January 29, 2008, the Division accepted Respondent's appointment of herself as her deputy treasurer. Respondent did not have a system for keeping track of campaign contributions or expenditures. Pursuant to section 106.07, Florida Statutes (2008), Respondent was required to file periodic reports listing "all contributions received, and all expenditures made, by or on behalf of her candidacy." At all times relevant to this proceeding, Respondent has been the owner of Prodigal S & D Corporation, which does business as Green Apple Association of Christian Schools (Green Apple). Respondent was authorized to issue and sign checks on the bank account owned by Green Apple. In August 2008, shortly before the primary election, Respondent placed an order with WPLG-TV for airtime to disseminate political advertisement for her campaign. The script used in the advertisement aired on WPLG included the following: "Please vote Freda Stevens for State Representative District 100 on August 26. Thank you."2/ On August 6, 2008, Respondent signed two checks made payable to WPLG. Both checks were drawn on the same bank account owned by Green Apple. Check 1050 was in the amount of $13,812.50. Check 1051 was in the amount of $680.00. Both checks were made payable to WPLG in payment for political advertising that Respondent had purchased from WPLG. When Respondent signed those checks to WPLG, she knew, or should have known, that there were insufficient funds in both the Green Apple account and her campaign account to cover the checks. On August 15, 2008, Respondent signed check number 1053 payable to WPLG that was drawn on the same bank account owned by Green Apple as checks 1050 and 1051. Check number 1053 was in the amount of $7,161.25 and was used to pay for political advertising that Respondent bought from WPLG prior to the primary election. When Respondent signed check numbered 1053 to WPLG, she knew, or should have known, that there were insufficient funds in both the Green Apple account and her campaign account to cover the check. Check numbered 1050 and 1051 were returned to WPLG for non-sufficient funds. WPLG did not deposit check numbered 1053. Respondent filed an original and five amended 2008 F3 Reports. Respondent certified that each report was true, correct, and complete. All reports were filed electronically utilizing the PIN number given to Respondent by Ms. Bronson. On August 22, 2008, Respondent filed her "Original Report." That report listed no campaign contribution from Green Apple, and it failed to list campaign expenditures to WPLG or other media. Because of those omissions, the report was not accurate, and it was not complete. On August 23, 2008, Respondent filed a first "Amended Report." That report listed five in-kind contributions from Respondent with the descriptor "media" under each contribution. The amounts of the in-kind contributions were $13,812.50; $680.00; $3,185.85; $7,161.25; and $3,187.00. That report was inaccurate because the in-kind contributor for three of the in- kind contributions ($13,812.50; $680.00; and $7,161.25) was Green Apple, not the Respondent.3/ Respondent lost the primary election. After the election, on August 30, 2008, Respondent filed a second "Amended Report." The five in-kind contributions from Respondent with the descriptor "media" that had been on the first "Amended Report" were deleted from the report and were replaced with the following four in-kind contributions with the reported date of the contribution in parentheses: $13,812.50 (August 6); $3,187.50 (August 20); $3,128.85 (August 18); and $680.00 (August 6). That report was inaccurate because the in-kind contributor was Green Apple, not the Respondent. That report also failed to report the check in the amount of $7,161.25 that Green Apple had issued to WPLG on August 15. On November 24, 2008, Respondent filed a third "Amended Report", a fourth "Amended Report", and a fifth "Amended Report." The third "Amended Report" deleted the in- kind contribution from Respondent dated August 6, in the amount of $13,812.50, and with the descriptor "media." The fourth "Amended Report" and the fifth "Amended Report" reflected no contributions, only expenditures, none of which was for media. These "Amended Reports" were incomplete and inaccurate. WPLG attempted to collect the monies owed by Respondent's campaign. Clementine Sherman remitted a payment (by cashier's check) in the amount of $6,000.00 on August 27, 2008.4/ Respondent remitted three money orders that were deposited September 28, October 15, and December 22, 2009, respectively. These money orders were in the amounts of $200.00, $200.00, and $680.00. These payments were not reflected on any report filed by Respondent.
Findings Of Fact The Respondent, Lydia Miller, ran for election to the Hillsborough County Commission, District 4, in 1992. It was her first campaign for election to public office. She declared her candidacy in September, 1991, and appointed her husband as her campaign treasurer and herself as deputy campaign treasurer. She ran as a Republican and had several Republican opponents in the primary. She did not have the backing of the Republican Party and had difficulty attracting financial support, especially at first. Of necessity, she ran a "grass roots" campaign and spent countless hours going door-to-door in her district asking for support and, when possible, making public appearances. She also tried to capitalize on the "grass roots" nature of her campaign. Trying to emulate a campaign technique that worked for Governor Lawton Chiles, she pledged that she would not accept financial contributions in excess of $100 (versus the $500 statutory maximum) and would not accept financial contributions (or endorsements) from "special interests." To substantiate the strength of her "grass roots" campaign, the Respondent saw value in her campaign treasurer's reports showing as large a number of relatively small contributions from individuals. In all, the Respondent raised less than $14,000. Yet, she was able to survive the first primary, win the second primary, and beat her Democrat opponent in the general election. Cash Not Deposited or Reported The Respondent admitted that she accepted a $20 cash contribution from Irene Herring and put it in her campaign's petty cash without reporting it in her campaign treasurer's reports. Herring made two other cash contributions to the Respondent's campaign- -one in the amount of $20 and another in the amount of $30. Neither contribution was reported. Both contributions were given to Susie Farmer, a campaign worker. Similarly, David Gill contributed between $50 and $100 cash to the Respondent's campaign, but the contribution was not reported. This contribution also was given to Susie Farmer. The Respondent denied specific knowledge of the two other cash contributions from Herring and the cash contribution from Gill. The only evidence which could support a finding that the Respondent knew of them was testimony of Larry Sweat, an aide the Respondent hired after her election but fired three months later. From an evaluation of the testimony of the Respondent and Sweat, taking into account all of the relevant evidence as well as their demeanor and overall credibility, and it is found that Sweat's testimony was not sufficient to overcome the Respondenet's denials by a preponderance of the evidence. By her own admission, however, it would not have been unusual for the Respondent to use small cash contributions (or allow and approve their use) to replenish her campaign's petty cash without reporting them in her campaign treasurer's reports. It certainly is possible that the other two cash contributions from Herring and the cash contribution from Gill were handled in that manner. The Respondent was aware that all contributions had to be deposited in her campaign account and reported in her campaign treasurer's report. Yet, for reasons not fully explained in her testimony, the Respondent also thought that it was permissible to use small cash contributions to replenish her campaign's petty cash. It is possible that the Respondent misread or misunderstood the election campaign financing laws dealing with petty cash and the reporting of expenditures from petty cash. See Conclusions of Law 79 through 81, below. The Respondent certainly was not handling the small cash contributions that way to "beef up" her campaign treasurer's reports. Cash Deposited and Reported But Donor Allegedly Unknown The Respondent's campaign treasurer's reports show the following cash contributions: $100 from Phillip Preston on August 17, 1992 $ 90 from Robert Preston on August 17, 1992 $100 from Kelley Preston on August 22, 1992 Robert, Kelley, and Phillip are the minor children of Allen and Rosina Preston, aged 16, 4, and 2. It is possible but improbable that Robert donated $100 of his own cash to the Respondent's campaign; it is all but impossible that Kelley or Phillip did. The Prestons were supporters of the Respondent and contributors to her campaign. The Respondent's Sun City Center campaign headquarters was in office space donated by Allen Preston. The offices of Preston's business also was in the same building. Allen Preston often visited the campaign headquarters and helped with the campaign, in addition to his financial contributions. Yet, Preston denied donating $290 cash in the names of his children. Preston does not think his wife would have done so without telling him, but his wife did not testify. The Respondent denies any specific knowledge concerning the $290 in cash contributions attributed to the Preston children. But it would not have been unusual for Susie Farmer or other campaign workers to leave cash contributions with "Post-It" notes attached to identify the donors. The campaign treasurer's reports normally would be prepared using the information on the "Post-It" notes. Especially in the days leading up to the three elections, the campaign headquarters became hectic and confused, and it is possible that incorrect information inadvertently was placed on the "Post-It" notes for these cash contributions. When the Respondent saw cash contributions from the Preston children in preparing or reviewing reports, she would not have questioned the accuracy of the information. She would have assumed that the Prestons had made the donations in the names of their children. She did not think there was anything wrong with adults making campaign contributions in the names of their minor children. She denies intentionally misreporting the contributions in order to hide contributions from Allen and Rosina Preston, or their businesses, or artificially to "beef up" the number of small contributions reflected in her campaign treasurer's reports. The evidence was not sufficient to overcome the Respondenet's denials by a preponderance of the evidence. The Respondent's campaign treasurer's reports also show a $25 cash contribution from Evelyn Ackerman on October 14, 1992. The parties stipulated in their Joint Prehearing Stipulation that Ackerman is an elderly woman on a fixed income and that Ackerman denies making the contribution. But the Respondent has a specific recollection that Ackerman offered the contribution, that the Respondent tried to decline in view of Ackerman's meager financial means, and that Ackerman insisted. It is found that the Respondent's testimony outweighs the statements from Ackerman, who has been know to hallucinate and whose memory may not be trustworthy. The Respondent's campaign treasurer's reports also showed a $100 cash contribution from Henry Farmer on October 18, 1992. Henry Farmer denies making the contribution and does not believe that his wife, Susie, would have donated $100 cash in his name without telling him. Susie did not testify, but she was an enthusiastic supporter, campaign worker and fund-raiser for the Respondent's campaign, and it certainly is possible that she donated the cash in her husband's name without his knowing it. Regardless of the actual source of the cash, the Respondent testified to her recollection of seeing a $100 cash contribution with a "Post-It" notes attached indicating that it was from Henry Farmer. She indicated that she had no reason to think it was not a contribution from Susie's husband, and it would not have been unreasonable for the Respondent to believe, without question, that the information on the "Post-It" note was accurate. The evidence was not sufficient to overcome the Respondent's testimony by a preponderance of the evidence. The evidence did not prove that the Respondent knew her campaign treasurer's report of the $100 cash contribution from Henry Farmer was not accurate. The Respondent's campaign treasurer's reports also showed a $100 cash contribution from Marie Schrag on October 18, 1992. Neither she nor her husband made the contributions. The Respondent did not testify to any specific recollection about the Schrag contribution. But Schrag was Allen Preston's bookkeeper and worked in the same building of Preston's where the Respondent's Sun City Center campaign headquarters was. Although she was not an active campaign worker for the Respondent, she did type one letter for the campaign, and her husband stuffed envelopes for the campaign on at least one occasion. In addition, she had been friends with Susie Farmer, one of the Respondent's most successful fund-raiser, for over 20 years. If the Respondent saw a $100 cash contribution with a "Post-It" notes attached indicating that it was from Marie Schrag, she would have had no reason not to believe, without question, that the information on the "Post-It" note was accurate. The evidence did not prove that the Respondent knew her campaign treasurer's report of the $100 cash contribution from Marie Schrag was not accurate. Alleged Business Contributions Allegedly Falsely Reported From Individuals The Respondent's campaign treasurer's reports listed a June 1, 1992, contribution in the amount of $25 from "Phil Boggs, Occupation (if over $100), Boggs Jewelry," when the check was written on the account of Boggs Jewelry, and signed by Phil R. Boggs. The Respondent reasonably did not think there was anything wrong with the way the Boggs contribution was reported. When the Respondent pledged not to take financial contributions or endorsements from "special interests," she did not intend to indicate that she would not accept financial support from any businesses or corporations. (In her mind, "special interests" meant political action committees, not any and all businesses and corporations.) The Respondent does not know Phil Boggs, and Boggs Jewelry had no business before the County Commission during the Respondent's term. The Respondent reasonably did not perceive the Boggs contribution to have come from a "special interest," and it was not proven that the Respondent was trying to hide the true source of the Boggs contribution or make it look like it was coming from Boggs, individually, instead of the business, Boggs Jewelry. The Respondent's campaign treasurer's reports listed a contribution on June 2, 1992, in the amount of $25 from "Charles Hostetter, Occupation (if over $100), Fisher Beauty Salon," when the check was written on the account of Fisher's Beauty Salon, and signed by Charles Hostetter. The Respondent reasonably did not think there was anything wrong with the way the Hostetter contribution was reported. The Respondent reasonably did not perceive the Hostetter contribution to have come from a "special interest," and it was not proven that the Respondent was trying to hide the true source of the Hostetter contribution or make it look like it was coming from Hostetter, individually, instead of the business, Fisher's Beauty Salon. The Respondent's campaign treasurer's reports listed a contribution on June 22, 1992, in the amount of $25 from "Charles Bingham, Occupation (if over $100), c/o Floral Decor Florist," when the check was written on the account of Floral Decor Florist, and signed by Charles Bingham. The Respondent reasonably did not think there was anything wrong with the way the Bingham contribution was reported. Bingham is a personal friend of the Respondent and personally gave the check to the Respondent. The Respondent reasonably did not perceive the Bingham contribution to have come from a "special interest," and it was not proven that the Respondent was trying to hide the true source of the Bingham contribution or make it look like it was coming from Bingham, individually, instead of the business, Floral Decor Florist. The Respondent's campaign treasurer's reports listed a contribution on June 24, 1992, in the amount of $100 from "John Williams Coppes Kitchen, Occupation (if over $100), Owner," when the check was written on the account of Williams Kitchens & Baths, Inc. The Respondent reasonably did not think there was anything wrong with the way the John Williams contribution was reported. The Respondent knows Williams's business as "John Williams Coppes Kitchens," the name on the business's signage. (Coppes is the name of the brand Williams sells.) The Respondent reasonably did not perceive the John Williams contribution to have come from a "special interest," and it was not proven that the Respondent was trying to hide the true source of the John Williams contribution or make it look like it was coming from Williams, individually, instead of the business, whether known as Williams Kitchens & Baths, Inc., or as John Williams Coppes Kitchens. The Respondent's campaign treasurer's reports listed a contribution on August 16, 1992, in the amount of $100 from "Ann Williams, Guys & Dolls," when the check was written on the account of Guys 'N Dolls of Brandon, Inc., and signed by Ann Williams. The Respondent reasonably did not think there was anything wrong with the way the Ann Williams contribution was reported. Ann Williams is the Respondent's regular hairdresser and personally gave the check to the Respondent at the beauty parlor. The Respondent reasonably did not perceive the Ann Williams contribution to have come from a "special interest," and it was not proven that the Respondent was trying to hide the true source of the Ann Williams contribution or make it look like it was coming from Ann Williams, individually, instead of the business, Guys 'N Dolls of Brandon, Inc. The Respondent's campaign treasurer's reports listed a contribution on September 12, 1992, in the amount of $50 from "Martha Simmons, Tropical Fish Farms," when the check was written on the account of Gerald Simmons Tropical Fish Farm, and signed by Martha Simmons. The Respondent reasonably did not think there was anything wrong with the way the Simmons contribution was reported. The Simmonses were neighbors of the Farmers. The Respondent reasonably did not perceive the Simmons contribution to have come from a "special interest," and it was not proven that the Respondent was trying to hide the true source of the Simmons contribution or make it look like it was coming from Martha Simmons, individually, instead of the business, Gerald Simmons Tropical Fish Farm. The Respondent's campaign treasurer's reports listed a contribution on September 23, 1992, in the amount of $50 from Tommy Brock, when the check was written on the account of Brock Farms, and signed by Tommy Brock. The Respondent reasonably did not think there was anything wrong with the way the Tommy Brock contribution was reported. The Respondent reasonably did not perceive the Brock contribution to have come from a "special interest," and it was not proven that the Respondent was trying to hide the true source of the Brock contribution or make it look like it was coming from Tommy Brock, individually, instead of the business, Brock Farms. The Respondent's campaign treasurer's reports listed a contribution on October 15, 1992, in the amount of $100 from William Stearns, when the check was written on the account of F.E. Stearns Peat Co., Inc., and signed by William Stearns. If the Respondent had carefully compared check to the report, she probably should have known that the Stearns contribution was not reported properly. The check arrived in the mail, and there was no reason to think it was not from the F.E. Stearns Peat Co., Inc. Nonetheless, the Respondent reasonably did not perceive the Stearns contribution to have come from a "special interest," and it was not proven that the Respondent intentionally was trying to hide the true source of the Stearns contribution or make it look like it was coming from Williams Stearns, individually, instead of the business, F.E. Stearns Peat Co., Inc. It just as easily could have been a mistake or oversight. The Respondent's campaign treasurer's reports listed a contribution on October 15, 1992, in the amount of $100 from "William Bishop, c/o L.L. Corporation," when the check was written on the account of Leslie Land Corporation, signed by William Bishop, with the "memo": "William L. Bishop." If she had carefully compared check to the report, the Respondent probably should have known that the Leslie Land Corporation contribution was not reported properly. However, the "memo" on the check indicated "William L. Bishop," and the report gave Bishop's address as "c/o L. L. Corporation." It was not proven that the Respondent intentionally was trying to hide the true source of the Leslie Land Corporation contribution or make it look like it was coming from William Bishop, individually, instead of the business, Leslie Land Corporation. It is just as possible that the intention was to include all of the information on the check for full disclosure and that the initials "L. L." were used instead of the full name of the Leslie Land Corporation by mistake or oversight, or to compress all of the information into the limited space allotted on the report form. The Respondent's campaign treasurer's reports listed a contribution on October 22, 1992, in the amount of $100 from the "Bill Kincaid Company," when the check was written on the account of the Kincaid Company, and signed by William F. Kincaid. The Respondent reasonably did not think there was anything wrong with the way the Kincaid contribution was reported. All the report did was provide the additional information of Kincaid's first name, along with the company name. It was not proven that the Respondent was trying to hide the true source of the Kincaid contribution or make it look like it was coming from Kincaid, individually, instead of from the Kincaid Company. The Respondent also reasonably did not perceive the Kincaid contribution to have come from a "special interest." The Respondent's campaign treasurer's reports listed a contribution on October 29, 1992, in the amount of $50 from Kenneth Wetherington, when the check was written on the account of the Morgan and Wetherington Chiropractic, and signed by Kenneth Wetherington. The Respondent did not think there was anything wrong with the way the Wetherington contribution was reported. She thought that a chiropractor in partnership with other chiropractors acted in his own behalf when making a political contribution, even when writing a partnership check. Although the Respondent probably incorrectly reported this contribution, the Respondent reasonably did not perceive the Wetherington contribution to have come from a "special interest," and it was not proven that the Respondent intentionally was trying to hide the true source of the Wetherington contribution or make it look like it was not coming from the partnership of Morgan and Wetherington Chiropractic. The Respondent's campaign treasurer's reports listed a contribution on October 28, 1992, in the amount of $100 from Paul Rozeman, when the check was written on the account of the McCaw Communications of Florida, Inc., and signed by someone other than Rozeman. (The signature was illegible, and it could not be identified through testimony.) However, the check was delivered by Rozeman, who worked in McCaw's local office, and who introduced himself to the Respondent. Although McCaw Communications is a large corporation, the Respondent was not familiar with it and was willing to assume that the contribution was from Rozeman's company and to decided err on the side of using his name. Obviously, her assumption was incorrect, and the report was in error. In any event, the Respondent probably should have known that the contribution was not reported properly. (See Finding of Fact 36, above.) But the evidence did not prove that the Respondent was lying, and that she actually perceived McCaw Communications to be a "special interest," and intentionally was trying to hide the true source of the contribution and make it look like it was coming from Rozeman, individually, instead of from McCaw Communications. In all, the Respondent's campaign treasurer's reports that were admitted in evidence listed 216 separate contributions. ($3,052 in cash and check contributions and $1615.80 of in-kind contributions would have been listed in earlier reports that were not admitted in evidence.) Of the 216 separate contributions, 31 (aside from the ones discussed in paragraphs 15 through 43, above) unambiguously and properly listed the contributions as coming from corporations, businesses or organizations. Contributions Allegedly Over $100 And Falsely Reported As Several $100 Contributions On or about October 5, 1992, the Respondent's campaign received a $500 check on the account of, and signed by Allen Preston, with explicit instructions to consider it and report it as being a $100 contribution from each of the five family members: Allen; his wife, Rosina; and their three children, Robert, Kelley, and Phillip. On or about September 3, 1992, the Respondent's campaign received a $300 check on the account of Aquarius Water Refinery, Inc., and signed by Joe Gaskill, with explicit instructions to consider it and report it as being a $100 contribution from him, another $100 contribution from his wife, and another $100 contribution from his company, Aquarius Water Refinery, Inc. On or about September 3, 1992, the Respondent's campaign received a $200 check on the account of Care Animal Hospital, Inc., and signed by Richard Kane, a veterinarian and the corporation's president, with explicit instructions to consider it and report it as being one $100 contribution from him and another $100 contribution from his corporation. The Respondent did not specifically request that the Preston, Gaskill and Kane contributions be considered and reported as being several contributions of $100. Preston, Gaskill and Kane all were aware of the Respondent's campaign pledge to limit contributions to $100, and it was their desire and intention not to cause the Respondent to violate the pledge. The Respondent did not think it was improper or illegal or inaccurate to reports the Preston, Gaskill and Kane contributions as requested. It appears that the Petitioner has issued an advisory opinion that contributions in excess of the statutory maximum by check drawn on a joint account only can be divided into smaller contributions from more than one account holder if all of the donors sign the check. (The Petitioner's investigator testified to the existence of such an advisory opinion, but none was admitted in evidence at the hearing. The Petitioner attached to its proposed recommended order a copy of what purports to be its advisory opinion on the subject, designated DE 93-10, but technically the advisory opinion still is not in evidence in this case.) But there is no evidence that the advisory opinion was furnished to the Respondent or that she was aware of it. If the Respondent were aware of the advisory opinion, she should at least have been on notice to inquire whether it was permissible to report the contributions as she did. But it still would not have been clearly impermissible. Allegedly False Termination Report And Improper Disposition of Surplus Funds The deadline for submission of the Respondent's termination campaign treasurer's report was 90 days after the general election, or Monday, February 1, 1993. As the deadline approached, the Respondent reasonably thought she needed two things in order to file the termination report: first, the January, 1993, bank statement on the campaign account; and, second, the resolution of a dispute she had with the phone company (GTE of Florida, Inc., or GTE) about charges on bills she received after having the campaign headquarters phone disconnected. On the weekend before the termination report was due, the Respondent attempted to obtain the bank statement but was told that it just had been put in the mail and could not be regenerated by the bank's computer at that time. The bank personnel advised the Respondent to wait until the statement arrived in the mail. Without the bank statement, the Respondent reasonably could not prepare the termination report before the deadline. She asked officials at the local elections supervisor's office for advice and was told to write a note explaining the reasons why she could not meet the deadline. She wrote a note dated February 1, 1993, stating that she "could not report on the closing of my campaign account until I received the final Banking Statement." It is found that the note was truthful and that she did not have the January, 1993, bank statement at the time she wrote it. Testimony from Larry Sweat to the effect that the Respondent came into her office that day and gave him the bank statement to hide in a drawer is rejected as false or mistaken. The Respondent did not receive the bank statement in the mail until later that week. It is possible, as testified by Sweat, that he and the Respondent had a discussion to the effect that it was to the Respondent's advantage that her termination report would not be available for public scrutiny on the deadline, along with the reports of other candidates (assuming they were filed on time). But it is as likely, or more likely, that Sweat thought of the fortuitous side- benefit of filing late. In any event, it is found that the Respondent did not intentionally file late in order to reap the perceived side-benefit that might have been discussed. It is possible that, when the January, 1993, bank statement was received in the mail, the Respondent brought it into the office and gave it to Sweat to keep in his desk drawer until she was in a position to prepare the termination report. (The dispute with the telephone company still was not resolved.) But it is found that, contrary to Sweat's testimony, the Respondent did not give the bank statement to Sweat to "hide" in his desk drawer. On February 18, 1993, the Respondent filed the termination report. It showed a January 6, 1993, check on the campaign account (check number 1070) in the amount of $88.45, made out to cash. The check memo stated, "petty cash reimbursement," but the report clarified that the cash actually was paid to the Respondent and two others for the purchase of party goods for the celebration of the Respondent's victory in the general election. The February 18, 1993, termination report also showed that a February 16, 1993, check for $48.95 to GTE of Florida (check number 1072) "on account, balance due in dispute" was written on the campaign account on the day of the report. The report also showed a zero balance in the account. Check number 1072 never was presented to the bank, and its whereabouts is not known. The Petitioner contends that check number 1072 and the disputed telephone bill were fabrications to cover the improper disbursement of $48.95 of surplus to the Respondent. But the check just as easily could have been lost or, for some reason, simply not presented to the bank for payment. Besides, as reflected in the following Findings of Fact, the evidence was clear both that there was in fact a dispute regarding the GTE bill and that the $48.95 was not disbursed to the Respondent in February, 1993. The Petitioner presented the GTE telephone records for the Respondent's campaign office telephone account in an apparent attempt to prove that, as of November 10, 1992, there was only a $1.02 balance on the account and that GTE was not pursuing collection of the $1.02. But, while only a $1.02 balance appeared on the campaign telephone account as of November 10, 1992, approximately $154.68 was transferred at that time from the campaign telephone account to the Respondent's personal home telephone account. It was the transferred charges that the Respondent was disputing. For reasons not apparent from the record, on or about December 10, 1992, GTE reduced the balance transferred to the Respondent's home phone bill to $131.37. Apparently, GTE further reduced the transferred balance to $84.09 on December 19, 1992; again, no explanation for the further reduction is apparent. The $84.09 charge remained on the GTE records at least until an entry on one of the records indicating that GTE wrote it off as uncollectible on or about February 12, 1993. Although the records include the notation dated February 12, 1993, indicating that GTE was writing off the $84.09 charge as being uncollectible, the Petitioner did not call a witness from GTE to explain the GTE records, and the records presented at the hearing do not go beyond the February 12, 1993, entry. It is not clear from the records that GTE stopped soliciting payment of the charge at that time. On May 12, 1993, the Respondent filed an amended termination report showing a March 30, 1993, disbursement to the Respondent in the amount of $36.95 for reimbursement for partial payment of the campaign's GTE bill. It also attached a copy of the March 31, 1993, bank statement on the campaign account showing a beginning balance as of March 1, 1993, in the amount of $36.95 and one withdrawal/debit in the same amount during the month, for a zero balance at the end of the month. The Respondent testified that she paid the $84.09 charge in June, 1993. Unfortunately, the Respondent's testimony was not corroborated by any records. But the GTE records presented by the Petitioner did not go beyond February 12, 1993, and without testimony from a witness from GTE, they were insufficient to disprove the Respondent's contention that she paid the charge in June, 1993. If the June, 1993, payment date is correct, the amended termination report filed on or about May 12, 1993, would indicate that the Respondent disbursed the $36.95 balance of the campaign account (representing the $48.95 she thought she had paid to GTE on or about February 16, 1993, less a $12 bank service charge for February, 1993) to herself on or about March 30, 1993, believing that there still was a disputed $84.09 charge to GTE, and that she held the money pending resolution of the disputed charge. When she paid the GTE charge, she considered the March 30, 1993, disbursement to herself to be reimbursement for her payment of the GTE charge. The Respondent knew or should have known that it was improper to disburse surplus from the campaign account to herself, except to reimburse her own contributions to her campaign. But, according to the Respondent's testimony, she did not consider the $36.95 payment to herself to be "surplus" since she considered there to be an outstanding disputed liability to GTE.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Florida Elections Commission enter a final order dismissing the charges against the Respondent, Lydia Miller. RECOMMENDED this 6th day of April, 1995, in Tallahassee, Florida. J. LAWRENCE JOHNSTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 6th day of April, 1995. APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-6612 To comply with the requirements of Section 120.59(2), Fla. Stat. (1993), the following rulings are made on the parties' proposed findings of fact: Petitioner's Proposed Findings of Fact. 1. First sentence, accepted but subordinate and unnecessary. The rest is conclusion of law. 2.-3. Last two sentences, rejected as not proven. Otherwise, accepted and incorporated to the extent not subordinate or unnecessary. Last two sentences, rejected as not proven. Otherwise, accepted and incorporated to the extent not subordinate or unnecessary. Accepted and incorporated. Rejected as not proven. (Rather, she complied with the donors' instructions as to the source of the donations and how to report them.) First sentence, rejected as argument. Otherwise, accepted and incorporated to the extent not subordinate or unnecessary. Rejected as not proven that the Respondent willfully filed false reports. As to Ackerman, rejected as not proven that the report was inaccurate. Otherwise, accepted and incorporated. First sentence, rejected as not proven that he admitted his wife did not make the contribution. (He said it was possible that she made it but he does not think she did.) Second sentence, rejected as not proven as to Ackerman but otherwise, accepted and incorporated. Third sentence, rejected as not proven that she said Suzie Farmer was responsible; the Respondent admitted to handling the Ackerman contribution and testified that said that someone, quite possibly Farmer, attached an explanatory "Post-It" note to the other cash contributions. Last sentence, rejected as not proven. Third, fifth and last sentences, rejected as not proven. Otherwise, accepted and incorporated to the extent not subordinate or unnecessary. Rejected as not proven that the Respondent willfully made false reports. Otherwise, accepted and incorporated. First, sixth penultimate and ultimate sentences, accepted but subordinate and unnecessary. The rest is rejected as not proven. (A review shows that she usually followed Barr's advice although not in each and every case.) Penultimate sentence, rejected as not proven as to petty cash. Otherwise, accepted and incorporated. Rejected as not proven. Last sentence, rejected as not proven. Otherwise, accepted and incorporated to the extent not subordinate or unnecessary. Accepted and incorporated. Third sentence, rejected as not proven. Otherwise, accepted and incorporated to the extent not subordinate or unnecessary. Penultimate and ultimate sentences, rejected as not proven. Otherwise, accepted and incorporated to the extent not subordinate or unnecessary. First and last sentences, ejected as not proven. Otherwise, accepted and incorporated to the extent not subordinate or unnecessary. First, sixth, seventh and eighth sentences, rejected as not proven. Otherwise, accepted and incorporated to the extent not subordinate or unnecessary. Last sentence, rejected as not proven as to petty cash. Otherwise, accepted and incorporated to the extent not subordinate or unnecessary. Respondent's Proposed Findings of Fact. Accepted and incorporated to the extent not subordinate or unnecessary. Accepted and incorporated to the extent not subordinate or unnecessary or argument. Third paragraph, fourth sentence (that the small size of the individual alleged "masked" cash donations makes the allegation "absurd"), rejected as contrary to the greater weight of the evidence. (The point of the Petitioner's argument that a single fairly large cash contribution--which could have been in addition to reported contributions--could have been "masked" by fabricating many small cash contribution.) Otherwise, accepted and incorporated to the extent not subordinate or unnecessary or argument. Second paragraph, first sentence (that the dispute concerned check #1072), rejected as contrary to the greater weight of the evidence. Third paragraph, first sentence, rejected in part (omission of January, 1993, bank statement as a cause of initial delay) as contrary to the greater weight of the evidence and in part (the Respondent's first campaign and the amounts involved) as irrelevant on the issue whether she willfully violated the law. Otherwise, accepted and incorporated to the extent not subordinate or unnecessary or argument. COPIES FURNISHED: David R. Westcott, Esquire Assistant General Counsel Department of State, Division of Elections The Capitol, Room 2002 Tallahassee, Florida 32399-0250 Ralph C. Stoddard, Esquire Hampton, Stoddard, Griffin & Runnells 915 Oakfield Drive, Suite F Brandon, Florida 33511 Carlos Alvarez, Chairman Florida Elections Commission Room 1802, The Capitol Tallahassee, FL 32399-0250
Findings Of Fact Petitioner and the Florida Elections Commission are responsible for enforcing Chapter 106, Florida Statutes. In 1993, Respondent qualified as a candidate for re- election to Seat Five of the Tallahassee City Commission. She was defeated for this office in the general election on February 22, 1994. On December 27, 1993, Respondent signed a Statement of Candidate indicating that she had received, read and understood the requirements of Chapter 106, Florida Statutes, as required by Section 106.023, Florida Statutes. Respondent has run for public office on four different occasions. Respondent's 1994 campaign staff was made up of volunteers. Some of these volunteers were supporters who had worked in her prior campaigns. Others were supporters who were participating in a political campaign for the first time. In the early days of the campaign, Respondent met with her supporters at weekly campaign committee meetings. As time went on, Respondent's employment and campaign schedule prevented her from attending these meetings. She also found it increasingly difficult to spend much time at her campaign headquarters. In 1994, Respondent used the same system she had used in prior campaigns for registering the names, addresses and telephone numbers of supporters for purposes of organizing the campaign. These cards included a check-list of jobs for which a campaign worker could volunteer. The cards also had a signature line for volunteers who were willing to publicly support Respondent. The cards did not contain a place to indicate the date of the signature. Respondent's campaign headquarters was initially staffed entirely by part-time volunteers including, but not limited to, Vivian Pelham. As a result, the card filing system became disorganized. In many instances, there were duplicate cards for campaign supporters. Some of the cards were misplaced or lost as they were in constant use for campaign work in the neighborhood. In mid-January, Chuck Cyrus began working at Respondent's campaign headquarters on a full-time basis. He unsuccessfully attempted to organize the card filing system. At the conclusion of the campaign, all of the cards that could be located were stored along with other campaign records. On or before January 6, 1994, Respondent's staff decided to prepare a flyer for circulation at a Council of Neighborhood Associations (CONA) meeting. Respondent's husband, Jim Crews, instructed Vivian Pelham and other part-time workers to make telephone calls to people to verify approval of the use of their names on the flyer prior to its distribution. Ms. Pelham did not search for signature cards before she called people because she did not think about it. In retrospect, Ms. Pelham knew it was necessary to have signatures of people willing to publicly support Respondent. However, Ms. Pelham did not know that endorsers had to sign cards at any particular time. She was not aware of a difference between "written" and "verbal" approval before a candidate may use a person's name in a campaign advertisement. Rather, Ms. Pelham thought specific "verbal" approval was better than "written" approval as long as an endorser signed a card at some point in time. One of the people Respondent's staff contacted by phone was Dennis Murphy. Mr. Murphy refused to allow the use of his name on the flyer. Consequently, Respondent's staff did not include him as an endorser on the campaign advertisement. The flyer ultimately contained the names of twenty-two "neighborhood leaders" who endorsed Respondent's candidacy. The flyer listed the neighborhood of each person under their name. The following disclaimer was located at the bottom of the flyer: The above individuals are current or past officers in their neighborhood associations. This document does not represent an endorsement by the Council of Neighborhood Associations nor any individual neighborhood group. This is a paid political advertisement paid for by the campaign treasurer. There is no competent persuasive evidence that the flyer, read in its entirety, misrepresented the personal endorsement of the people named therein as an endorsement by a particular neighborhood group. The only names included on the flyer which are at issue here are Sterling and Rosemarie Bryant and Dorothy Rose. Mr. and Mrs. Bryant were long- time supporters of Respondent. They worked in Respondent's 1994 and previous campaigns. Ms. Rose supported Respondent in 1994 but was not actively involved in the campaign. At the time Respondent circulated the subject flyer, neither the Bryants nor Ms. Rose had signed a 1994 campaign card stating that they were willing to publicly endorse Respondent. Mr. Bryant did not remember receiving a call about the flyer prior to January 6, 1995. However, Ms. Rose did receive such a call. On the evening of January 6, 1994, Respondent arrived at the CONA meeting just before it convened where she reviewed the flyer for the first time. Respondent recognized the name of each person listed on the flyer as a past and/or current supporter. She had no reason to doubt whether the people listed had signed a 1994 campaign card prior to her staff's preparation of the flyer. The document was circulated at the meeting to about thirty-five (35) people, many of whom were listed on the campaign advertisement. Dennis Murphy was present at the January 6, 1994, CONA meeting. He did not see the flyer at that time. Days later Mr. Murphy became aware of the flyer. He went to Respondent's campaign headquarters and got a copy of it. On January 14, 1995, Mr. Murphy filed a sworn complaint with Petitioner alleging that Respondent had violated Section 106.143(3), Florida Statutes. He filed the complaint because he thought Respondent failed to get proper authorization to use the names of the people listed on the flyer. Soon thereafter, Respondent's staff learned about the complaint informally. Jim Crews instructed Vivian Pelham and other campaign workers to locate signature cards for each person listed on the flyer. If a card could not be located, the workers were to call the people and get a duplicate. No one on Respondent's staff advised her about the rumored complaint. Several campaign workers began looking for signature cards. Vivian Pelham could not find a card for Sterling Bryant and called him. Because the Bryants were elderly, Ms. Pelham went to their home where Mr. and Mrs. Bryant signed a card. Ms. Pelham's testimony that she specifically requested the Bryants' signature relative to the flyer and not a subsequent newspaper advertisement is more persuasive than Mr. Bryant's testimony to the contrary. The subsequent newspaper advertisement, published on January 27, 1994, included a picture of Respondent with several neighborhood leaders, including the Bryants. Petitioner sent a letter dated January 19, 1994, to Mr. Murphy informing him that it had initiated an investigation of his complaint. Petitioner's letter to Mr. Murphy also requested information concerning the issue of "willfulness." That same day, Petitioner sent Respondent a letter, by regular United States Mail, enclosing a copy of the complaint. This letter gave Respondent the opportunity to submit a response in the form of a sworn statement. Respondent's staff received the letter on her behalf but did not bring it to her attention or respond to it in any way because they thought cards were available for each of the people listed on the flyer. Petitioner sent Respondent a second letter dated February 21, 1994. This letter was sent certified mail, return receipt requested. Respondent was in her headquarters when the letter arrived on February 23, 1994. She learned about the complaint for the first time when she signed for the letter. Respondent immediately located Petitioner's first letter and initiated a search of her records for the cards in question. Respondent was able to locate a card for everyone listed on the flyer except Dorothy Rose. Consequently, Respondent called Ms. Rose and went to her home where she obtained Ms. Rose's signature on a card. Respondent thought she was obtaining a duplicate card for Ms. Rose. During her 1994 campaign, Respondent continued to work as Mayor and City Commissioner of Tallahassee, Florida. She also worked full-time for Florida State University School in various administrative positions. Because of the demands of her schedule, she relied on her family, friends and volunteers to run her campaign. On the day before the primary, Respondent became ill and was hospitalized due to the intense stress of the campaign and pressure associated with her employment. In a letter to Petitioner dated February 24, 1995, Respondent denied the allegations in the complaint and enclosed copies of signature cards for the people listed in the flyer. The cards did not have dates to indicate when Respondent's supporters signed them. By letter dated June 28, 1994, Petitioner requested Respondent to furnish dates for the signatures and the names of the campaign workers who solicited the signatures. Respondent was unable to furnish this information because it was unavailable. With the exception of Ms. Rose's signature card, Respondent did not know when the cards were signed or which of the cards in her possession might have been duplicates of lost or misplaced cards. She was still under the impression that Ms. Rose's card was a duplicate. C. L. Ivey investigated the complaint for Petitioner. He randomly selected approximately twelve (12) people from the list of names on the flyer and contacted as many of them as he could reach. Most of them could not remember when they signed the cards. No one expressed an objection to Respondent's use of their name. Mr. Ivey subsequently deposed several of Respondent's supporters including Sterling Bryant and Dorothy Rose. The only cards they remembered signing in 1994 were executed after January 6, 1994. Mr. Bryant had not seen the subject flyer before Petitioner deposed him. He would have preferred to see a stronger disclaimer than the one at the bottom of the flyer. In 1994, Mr. Bryant was president of his neighborhood association and did not want to give the impression that the association endorsed a particular candidate. However, he did not object to Respondent publicly representing that he personally endorsed her candidacy. Respondent did not willfully violate Section 106.143(3), Florida Statutes. Neither she nor her campaign staff were aware that the Bryants and Ms. Rose had not signed a card prior to distribution of the flyer. To the contrary, Respondent and her staff knew that each of the people listed on the flyer were Respondent's past and/or current supporters. Their failure to ensure that they had a signature card on file for each person was at most simple negligence. The actions of Respondent and her staff after they learned about the complaint were not motivated by a desire to circumvent the election code. At all times, Respondent and her staff attempted to conduct themselves within the letter of the law. After the election, it was not reasonable to expect Respondent to know when the endorsers signed the cards because they were not dated. There is no competent persuasive evidence that Respondent received an unfair advantage by publishing the flyer without the prior written approval of the Bryants and Ms. Rose. Moreover, there is no competent persuasive evidence that distribution of the flyer resulted in harm to any person. The Bryants and Ms. Rose continue to espouse their friendship and support for Respondent. It did not become clear that the Bryants and Ms. Rose had not timely signed a signature card until after Petitioner completed its investigation. By then, Respondent had no effective means to remedy the situation.
Recommendation Based on the above referenced findings of fact and conclusions of law, the undersigned recommends that the Florida Elections Commission enter a Final Order finding that the Respondent did not willfully violate Section 106.143(3), Florida Statutes and dismissing the charges against her. RECOMMENDED this 14th day of June, 1995, in Tallahassee, Leon County, Florida. SUZANNE F. HOOD, Hearing Officer Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 14th day of June, 1995. APPENDIX The following constitutes the undersigned's specific rulings on the parties' proposed findings of fact pursuant to Section 120.59(2), Florida Statutes. Petitioner's Proposed Findings of Fact Accepted in Findings of Facts (FOF) number 1. Accepted in FOF number 2. Accepted in FOF number 13. Accepted in FOF numbers 12-13. Accepted in FOF numbers 10 and 14 as modified therein. Accepted in FOF numbers 17-18. Accepted in FOF numbers 5 and 21. Accepted in FOF number 22. Accepted in FOF numbers 23-24. Accepted as modified in FOF 6 & 15. Accepted in FOF numbers 12, 16, and 24-25. Rejected. See FOF numbers 16 and 25. Accepted as modified in FOF numbers 12 and 19. Accepted in FOF 3-4. Respondent's Proposed Findings of Fact Respondent did not number her proposed findings of facts. They are included in her proposed recommended order on page 1 through the first whole paragraph of page 6. The undersigned accepts all of Respondent's proposed findings of facts in substance as modified in FOF numbers 1-29 of this Recommended Order except: Mr. Murphy's political opposition to Respondent is not relevant; (2) Reference to any conversation between Mr. Murphy and a Mr. Fulford is uncorroborated hearsay; (3) Mr. Murphy's reason for not reporting the alleged violation to the Leon County Supervisor of Elections is not relevant; and (4) Reference to any newspaper articles that Petitioner's investigator relied upon is not relevant and uncorroborated hearsay. COPIES FURNISHED: David R. Westcott, Esq. The Capitol, Room 2002 Tallahassee, FL 32399-0250 Robert Augustus Harper, Esq. P. O. Box 10132 Tallahassee, FL 32302-2132 Honorable Sandra B. Mortham Secretary of State The Capitol Tallahassee, FL 32399-0250 Don Bell, Esq. Dept. of State The Capitol, PL-02 Tallahassee, FL 32399-0250
Findings Of Fact The supporting and counterveilling evidence relevant to the objections may be classified as evidence going to the allegation that Petitioner engaged in objectionable conduct by offering to waive initiation fees for employees joining the union prior to the election; evidence surrounding the allegation that Petitioner engaged in objectionable conduct by telling employees they would extend superior treatment to members as opposed to non-members; and evidence surrounding the allegation that Petitioner engaged in objectionable conduct by threatening employees with loss of jobs if they did not join and vote for Petitioner. The Employer presented Rick J. R. Wilson who testified that James Carpenter, Petitioner's business agent, explained to those employees who attended union meetings that initiation costs would increase after the ground floor was established. He testified that this statement most probably was made during the fall of 1974. However, he later testified that it was made throughout the organizational campaign. On another occasion he testified that the statement could have occurred within seven (7) days preceding the day of the election, but that it most likely occurred during the fall of 1974. He testified that the pre-election atmosphere was not tense and that he was not threatened nor did he hear of any other threats being made to any other employee. Richard Jackson, an employee was also presented and testified that he spoke to fellow employee Ralph Holbrook who told him that the initiation fee to join prior to the election would be $10.00 and that thereafter it would be increased to $75.00. Jackson did not take that statement seriously or as a threat nor did he become a union member prior to or after the election. He assumed that he would be treated fairly. According to him, Holbrook is not a union official. Samuel Griffin also testified that he heard rumors that if the union got in, and he did not join, it would cost him more to join after the election. J. C. Pryor also stated that he passed by a group of men and over heard a conversation that if the union came in, it would cost more to join later. Paul Mason, an employee of approximately 8 years, voted in the election, attended union meetings and testified that Carpenter spoke at the meetings and said it would cost non-union members more at "the eventual time." He heard the statement at one time, and to the best of his recollection, the only meeting that he attended was in the fall of 1974. Tom Reed was also called and testified that during a meeting sometime in 1974, Carpenter told those in attendance that employees who joined the union would pay less prior to the election than those who joined subsequent thereto. He testified that Carpenter gave Mary Lawrence approximately $50.00 to pay off her bills that she had incurred during the organizing drive. In cross-examination, he testified that it was the employees who gave money to Mrs. Lawrence and others who are laid off and not, as it was rumored, that union funds were given to the laid off employees. Guy D. Pettis testified that it was possibly Carpenter who spoke of union costs and also that for employees who join now, it would be less than those employees who join subsequent to the election. He testified that Carpenter made the statement during June, 1974, at a union organizational meeting. Lamar Adams testified that to the best of his recollection, Carpenter made the statement of the increased initiation fee sometime in December of 1974 and that he heard no further statement from Carpenter on this point. He testified that he heard from other employees approximately 2 weeks prior to the election that employees better join the union now or that they would "pay dearly after the election". He attended no union meetings subsequent to December of 1974, and that he paid no credence to the statement that employees would have to pay dearly. Howard Wright was also called, and testified that he was told by Carpenter that there would be an increased initiation fee for those employees who join after the election. He was uncertain as to when these statements were made, however, he did testify that Carpenter told him that union as well as non- union members must be treated equally. According to Wright, Carpenter made the statement that during layoffs union men would receive preferential treatment with regard to recall as well as to other problems. He further testified that employee Holbrook told him that non-union employees would be looking for a job presumably after the election. He later testified that the County caused to be issued a letter to employees to advise them that they would not lose their jobs, and that Pappy Myers, the City Manager, held a meeting approximately thirty to sixty days prior to the election to advise all employees that they could vote for or against the Union. He explained their rights and advised that all employees would be treated equally. Pat Faircloth was called and testified that Carpenter told employees that he could only bargain for those employees based on Judge Faircloth's ruling in a decision respecting another matter involving the same parties. (During a meeting held within the past two months, Carpenter did not explain what would occur at this hearing, and that he made different comments about initiation fees for union and non-union members. Kevin Sullivan, an employee, was called and testified that union costs were discussed at union meetings and that at a meeting approximately one month prior to the election, it was stated that costs would be more to join the union after the election than it would be prior thereto. He substantiated the earlier testimony that Myers held a meeting shortly before the election and that he did not join the Union because he did not think much of the rumors of increased initiation fees. He testified that he did not hear of the increased initiation fees at a Union meeting. Jodie Sapp was called and testified that she did not hear Carpenter tell employees that initiation fees would increase after the election. Bill Howell testified that sometime during 1974, Carpenter spoke about the cost of initiation fees for late joiners. He recalled a meeting held by Pappy Myers who informed the employees that nothing would be held for or against anyone for voting in the election, for further that employees were free to vote their freedom of choice. The lead case in this area is N.L.R.B. v. Savair Mfg. Co. 414 U.S. 270, 84 LRRM 2929 (decided December 17, 1973). In Savair, the union won an election by a vote of 22 to 20, and the Employer filed objections. The critical objection alleged: That the union, and persons acting in its behalf, through misrepresentation, trickery and threats deceived certain employees into believing that if they failed or refused to sign a card requesting an election and the union was successful, they would be fined from $20 to $200 before they could become members of that union, which acts interfere with the employees' right to exercise a free choice. Evidence adduced at a hearing showed that prior to the filing of the petition an employee of the union, in obtaining signatures from employees ". . . told employees that they would be subject to a fine or an assessment fee if they did not sign the card in the eventuality that the union won the election". There was a great deal of discussion among the employees as to whether they would sign the union authorization cards, in view of the fact that, regardless of their desires and how they would actually vote, they could save themselves some money in the event the union was successful. Subsequent to the filing of the petition, the union officer addressed employees at a meeting. An employee asked this officer if there would be an initiation fee. He responded that there would be a small fee for those employees who failed to sign an authorization card prior to the election. The Board (NLRB), adopting the hearing officer's recommendations, concluded that conduct predating the filing of the petition did not constitute grounds for setting aside the election, relying on Goodyear Tire and Rubber Company, 138 NLRB 453. With respect to the conduct occurring after the petition was filed, the Board determined that it would not affect the results of the election, relying on DIT-MCO, Inc., 163 NLRB 1019. The Employer refused to bargain, and the Board in a summary judgement proceeding found a violation of s8(a)(5) and (1) of the National Labor Relations Act. 29 U.S.C. 151 et seq. The Sixth Circuit refused to grant enforcement stating: "We simply refuse to believe that the waiver of initiation fees, contingent upon the outcome of an election, whether it is referred to as a fine, an assessment, or a waiver of initiation fees, is not coercive in the context of a union election." 470 F. 2d 305; 82 LRRM 2085. The Sixth Circuit's rationale in Savair was essentially that set forth in Lobue Brothers, 109 N.L.R.B. 1182, wherein the Board found that a waiver of initiation fees was objectionable because it was contingent upon the results of the election. The Sixth Circuit rejected the Board's later decision in DIT-MCO, 163 N.L.R.B. 1019, 1021, in which the Board said: In subsequent cases the Board gave the Lobue rule a strictly limited construction ... There's no pub- lished decision subsequent to Lobue in which the Board found that the facts of the case warranted application of the Lobue rule. We are now of the opinion that no real distinction exists between a situation where the union offers to waive or reduce the initiation fees, but nothing is said about the election result, and one where, as in Lobue, the waiver is expressly conditioned on the outcome of the election. For whether expressly told so or not, an employee must recognize as a practical matter the way a reduced initiation fee can be- come of value to him only if the union wins the election. The Supreme Court affirmed the judgement of the Sixth Circuit finding that waiver of initiation fees only for those signing authorization cards prior to the election impermissibly interferes with the election. It does not necessarily follow that the Supreme Court intended to reinstate the Lobue rule in Savair for it cited that case for the broader proposition that "the Board originally took the position that pre-election solicitation of memberships by a union with a promise to waive the initiation fee of the union was not consistent with a fair and free choice of bargaining (slip opinion, P.S)." Since the Supreme Court did not specifically approve or even mention the distinction made in Lobue between offers which were expressly conditioned on the result of the election and those which were not, it may not have rejected the Board's later reasoning in DIT-MCO supra, that, practically speaking, all waivers are 5/ implicitly conditioned on the result of the election, and hence, that a distinction between waivers expressly conditioned on the result of the election and other waivers is meaningless for the purpose of assessing their impact upon the election. The Supreme Court's decision supplies no rationale which would support a distinction drawn on the basis of whether or not a waiver is conditioned on the result of the election; it rather appears to rationalize the distinction among waivers on the basis of whether or not there are forced conditions on pre-election support for the union. Using this standard, virtually all cases could be affected by the offer being conditioned on the election results. In such a case, the issue presented is whether an offer contingent on the result of the election is an improper inducement to vote for the union. The theory there might be that employees desirous of becoming union members could do so more cheaply by voting yes in the election. The problem with such a theory is that employees desirous of joining the union would more than likely be those who would vote yes regardless of the waiver, so that it could hardly be said that the offer affected those employees' free choice in the election. Arguably the offer could affect the employees' free choice in the election to the extent that those employees, whose only reservation about the union was based on the high cost of joining, would presumably be persuaded to vote for the union after the initiation fees were waived. However, the Supreme Court in Savair recognized that unions have a legitimate interest in removing the artificial barrier to employees' support imposed by the initiation fee (slip opinion p.4-51 note 4). The Supreme Court in its decision in Savair relied on various factors including employees' right to refrain from union activities. The NLRB has itself recognized in another context that promising or conferring benefits may unduly influence representational elections. See, for example, Wagner Electric Corporation, 167 N.L.R.B. 532 (grant of life insurance policies to those who sign with the union before representation election "subjects the donees to a constraint to vote for the donor union"); General Cable Corporation, 170 N.L.R.B. 1682 ($5 gift to employees by union before election, even when not conditioned on outcome of election was inducement to cast ballot favorable to union) Teletype Corporation, 122 N.L.R.B. 1594 (payment of money by rival union to those attending pre-election meetings). (slip opinion p.9-10). This suggest that the Supreme Court considered the employees' right to refrain from union activity to include the right to be free from monetary inducements which encourage the pre-election signing of authorization cards, it also apparently presumes that an employee would be induced into signing a card by a union promise to waive initiation fees only for those who sign cards prior to the election. While an employee could vote against the union in the election, he would have no assurance that the union would not win and negotiate a union security clause. In reflecting on these factors and the rationale utilized by the Supreme Court and subsequent NLRB cases, we first must turn to an examination of the fact that in this case we are dealing with a right to work state wherein the problems of many of the membership restrictions are not present. Thus, employees need not fear the effects of union security clauses. Therefore, it must next be considered to what extent the employees' free choice was affected, if at all, by the offer to waive the initiation fees. This of course assumes that the offer was in fact made. Turning to the facts in this case, and looking at the evidence in the most favorable light of the objecting party, the Employer, the undersigned is of the opinion that insufficient showing has been made that the employees' free choice has been affected in this election. The evidence surrounding the offer is at best sketchy and for those who heard the offer, the evidence as to their action thereon is unconvincing to establish that they acted out of fear in executing their authorization cards, or that their free choice was unlawfully affected. Most of the employees who had any testimony on the offer indicated that the initiation fee waiver was made sometime in the fall of 1974. There was other evidence that the employees heard of this waiver in and around the yard but none tied the offer to any union official responsible for or otherwise so close to the union so as to tie their actions to the union's responsibility. Also the test in these cases is whether there is a present or immediate impact on the employees. In this respect, the evidence falls short. Even the several employees who testified about the waiver, indicated by their testimony that they did not act on the union's alleged offer because several of them refused to join even after hearing the so called waiver of initiation fees. There was also other evidence that the employees freely and openly discussed the affects of the union and that the pre- election atmosphere surrounding the employer's facility was anything but tense. Other evidence established that Pappy Myers, the City Manager, called a meeting of employees to explain their rights which had the effect of rebutting any statements made by the union which arguably transgressed impermissible pre- election conduct. This meeting occurred approximately one week prior to the election. Based on these circumstances and the entire record in this case, the undersigned concludes that there was no waiver of initiation fees which, in and of itself, constituted objectionable conduct affecting the election. Consequently, the undersigned recommends that the objection be overruled. The next objection is that: Petitioner engaged in questionable conduct by telling employees it would extend superior treatment to members as opposed to non-members. By way of background, in this case the Petitioner filed an action in the Circuit Court in and for Bay County (Case No. 74-944) Petitioning for issuance of a writ of mandamus; for declaratory judgement; and for temporary and permanent injunctive relief. In the decision in that case, the court ruled that the defendant, Bay County, has no obligation to, indeed Bay County had no legal authority to, recognize the plaintiff or any other labor union, as an exclusive bargaining agent for all County employees with any given group on the basis of consent of less than all employees within said group. Relying on Dade County Classroom Teachers Association v. Ryan, 225 So.2d 903 (Fla. 1969). (Emphasis added). The Court went on to rule as a matter of law that Petitioner's complaint for declaratory judgement was granted to the extent that the defendant, Bay County, is presently obligated to bargain collectively with plaintiff, International Brotherhood of Teamsters, Local No. 991, on behalf, and only on behalf of those employees of defendant, Bay County, designating plaintiff as their collective bargaining agent. This ruling in the undersigned's opinion set the stage for Carpenter's remarks regarding the union's obligation to represent those employees who were members of that organization. In fact, of those employees who testified, the record reveals that employees consistently testified that these remarks were made based on Judge Faircloth's ruling. Illustrative of this point is the testimony of Drake Wilson, J. Pryor and Pat Faircloth. Significantly enough, all the employees testified that there was open and frank discussion regarding the benefits of unionization and others testified that Carpenter explained to them that union and non-union members must be treated fairly. See for example the testimony of Howard Wright. Based on the above findings, the undersigned concludes that the Petitioner did not engage in questionable conduct as alleged, by telling employees that it would extend superior treatment to members as opposed to non- members. In fact, the evidence on the other hand establishes the fact that there was open and frank discussion throughout the campaign; no employee testified that he felt threatened by any remarks made by any union officials during the campaign and additionally Carpenter explained to employees that all employees, both union and non-union members, would be treated equally and that Pappy Myers, the City Manager, explained to employees at a meeting approximately 30 to 60 days prior to the election that all employees would be treated alike. 6/ PERC's intervention should be limited to instances where, because of unique circumstances - such as the use of intentional deception or trickery - even an ordinarily skeptical voter would have had no reason to suspect that a given campaign statement was untrue and no way to check on it if he did have suspicion. This approach would accord with the NLRB's approach and view of its scope of responsibility under the election procedures under the NLRA. 29 U.S.C. 151 et seq. This would put PERC in the role, not of paternalistically protecting employees from any misstatement they might rely on, but merely of overseeing the election process to ensure that no breach of fundamental fairness occurred. Such limited intervention would encourage voters to apply the same critical powers in representation elections they are expected to apply in other types of elections if they wish to make a reasoned choice. At the same time, it would encourage the parties to engage in the sort of "uninhibited, robust and wide open" debate which both the first amendment and Section 447.501(3), F.S., contemplates and which the United State's Supreme Court has recognized is essential to the effective functioning of the election process. See e.g., Linn v. United Plant Guards, Local 114, 383 U.S. 53, 61 L.R.R.M. 2345 (1966). In conclusion, I recommend that this objection be overruled. The next objection is that: Petitioner engaged in objectionable conduct by threatening employees with loss of jobs if they did not join and vote for Petitioner. Several employees testified about rumors that they heard threats that they would lose their job if they did not become union members. Most of these remarks or rumors were made several months prior to the election and the evidence is clear that approximately one month prior to the election, the County put out a letter to employees that they would not lose their jobs based on their membership or non-membership in the Petitioner. In fact, Pappy Myers, the City Manager, called a meeting prior to the election and explained to employees their rights to become members of or refrain from becoming members of the Petitioner and further explained to them that all employees would be treated alike. Most of the employees hearing such rumors testified that they did not feel intimidated by such rumors and all testified that there were rumors pro and con regarding the labor organization. Further, Wright testified that Carpenter made the statement that union and non-union members must be treated equally. In assessing this objection, it is also worthy to note that the prior court order involving these parties on another matter made the express finding that the Employer was not obligated to recognize Petitioner for those employees who were, in fact, not members of that organization absent their express designation as such. After consideration of all of these factors including the fact that all the employees testified that there was open and frank discussion in regard to the pros and cons of unionization and the fact that elections, while they are to be conducted in an atmosphere free of coercion and interference, common sense dictates that they should not be set aside based on bald allegations that some employees voiced a rumor that some threats were made, directed to non-union members in a situation where as here, the parties engaged in a lengthy organizational drive including court litigation. No employee testified that he joined the union because he feared that he would lose his job and when expressly asked that question, all denied that they felt threatened by such rumors. Further, of those who testified about having heard such rumors, testimony reveals that they never joined frankly because they considered the rumors as such, simply yard rumors. See for example the testimony of A. C. Wilson. Accordingly, the undersigned recommends that this objection be overruled. Another objection alleged that: Petitioner engaged in objectionable conduct by mis- representing to employees that they could strike. The evidence on this point is that Carpenter told employees that under the law, they could not strike but that there were ways of avoiding the express provisions of the law by, among other things, calling in sick. No employee testified that such statements were made subsequent to the filing of the petition and the Employer concedes in its brief that these statements, when made, were voiced prior to the critical period. Accordingly, the undersigned recommends that this objection be overruled. In summary, the undersigned recommends that the employer's objections be overruled in their entirety and that a certification of representative be issued. DONE and ORDERED in Tallahassee, Florida, this 29th day of June, 1976. JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675
The Issue Whether the Respondent committed the violations alleged in the Order of Probable Cause entered August 26, 2009, and, if so, the penalty that should be imposed.
Findings Of Fact Because Ms. Fresen failed to respond to the Petitioner's First Request for Admissions, the matters of which admissions were requested are deemed conclusively established for purposes of this administrative proceeding. See Fla. R. Civ. P. 1.370. The Petitioner's First Request for Admissions is attached to this Final Order, and the matters of which admissions were requested are adopted herein as findings of fact.
The Issue Whether Respondent's action to reject all bids submitted in response to ITB DOH 11-004, relating to a multi-year contract to provide laboratory services to state and local government agencies in the State of Florida, is illegal or arbitrary, as alleged in the Petition.
Findings Of Fact Respondent Department of Health is an agency of the State of Florida that requires a broad range of clinical laboratory testing services for the diagnosis, treatment, or monitoring of diseases, illnesses, and hazards to human health. Petitioner LabCorp is a for-profit corporation providing nationwide laboratory testing services. It is authorized to conduct business and operates in the State of Florida. On December 20, 2011, Respondent advertised an Invitation to Bid (ITB) to solicit competitive bids for the award of a three-year statewide contract to provide clinical laboratory services to the Department of Health, primarily through its county health departments. Petitioner is the incumbent contractor, and has been providing Respondent with services substantially similar to those solicited in the ITB since 2005. In the ITB, the contract was estimated to require approximately 861,000 tests annually and to produce approximately $9,300,000 in annual sales. In fiscal year (FY) 2010-11, the total amount received under the existing contract was $9,320,522. A Special Condition of the ITB, Section 6.10, entitled "Basis of Award," provided: The Department anticipates making a single or multiple Contractor awards based on services provided. Any award shall be based on the rates for service requested herein. The determination shall be based on a comparative analysis of submitted bids and existing pricing. The Department reserves the right to award to either a single or multiple Contractors to meet the needs and to serve the State of Florida's best interest. Bids shall be evaluated on the price submitted and whether the requirements of the bid are met the multiple awards may be allowed if the bids are within 10% of the lowest bid for the services. The Department reserves the right to make awards as determined to be in the best interest of the State of Florida, and to accept or reject any and all offers, or separable portions, and to waive any minor irregularity, technicality, or omission if the Department determines that doing so will serve the State of Florida's best interest. Bid price shall include all necessary supplies and equipment to allow proper collection, preparation, and transportation of specimens and meet all specifications and conditions. All cost for transportation for pick-up/delivery must be included in the unit cost per test. Attachment I to the ITB, entitled "Specifications of Clinical Laboratory Services" included at page 21: Staffing Levels Each prospective offeror shall include their proposed staffing for technical, administrative, and clerical support. A Contract Representative, Quality Control Manager, Staff Pathologist, Project Manager, Technical Support Manager, Technical Support Staff and statewide field representatives shall be required. The offeror is encouraged to provide on an as needed basis, as an option to the contract, an on-site Phlebotomist. The successful offeror shall maintain an adequate administrative organizational structure and support staff sufficient to discharge its contractual responsibilities. In the event the Department determines that the successful offeror's staffing levels do not conform to those promised in the proposal, it shall advise the successful offeror in writing and the successful offeror shall have 30 days to remedy the identified staffing deficiencies. The successful offeror shall replace any employee whose continued presence would be detrimental to the success of the project as determined by the Department with an employee of equal or superior qualifications. The Department's contract manager will exercise exclusive judgment in this matter. Attachment III, entitled the "Bid Price Page," consisted of five pages. Following a certification page, it contained three and one-half pages listing 119 "core tests" in a table format. The table contained columns filled with information as to the "CPT Codes," the laboratory test name, and the estimated quantity of that test, as well as two columns labeled "Price per Test" and "Extended Price" which contained no information, only blank squares. The blank columns allowed a bidder to fill in the price of the test, and then multiply that value times the estimated quantity of that test that had been provided by the Department to determine the Extended Price. On the bottom half of the final page was a notation of "Grand Total" with an empty square underneath the Extended Price column, to allow a bidder to compute the Grand Total by adding together all of the Extended Prices. Below the term Grand Total were additional notations. There was the phrase "Balance of Line Tests" followed by "Minimum fixed volume discount off current published price list for balance of tests/non-core tests:" In the same row as this phrase, in the empty square of the Extended Price column, was a percentage sign, allowing a bidder to enter a percentage in that space. Below this, there was a phrase, "Phlebotomy Services:" followed by "$ HOURLY RATE" in the same row in the empty square of the Extended Price column. The price of a particular test as entered in the Price per Test column only applied to instances in which the Department itself would pay for the test, if a third-party payer was involved, they would pay their customary rate. The Basis of Award as published omitted a sentence from the second paragraph which the Department had intended to include. The sentence "Single award will be made to the responsive, responsible bidder offering the lowest grand total for the core tests on attachment III" was supposed to be inserted, but was not. Neither Quest nor any other bidder filed a notice of protest to the terms, conditions, or specifications contained in the solicitation, including the Basis of Award provision or the Bid Price Page, within 72 hours of the posting of the solicitation. As provided in the ITB, on January 3, 2012, Quest submitted questions to the Department to be answered prior to bidding, which the Department answered in writing on January 6, 2012. Relevant questions and answers read as follows: Q1) The third party payer bill mix percentages for major payer groups (Medicare, Medicaid, Private Insurance, Capitation, Patient, Client bill and other) so contractor can confirm and evaluate the payers with whom we will need to process claims. A: STATEWIDE PERCENTAGES UNKNOWN SINCE IT IS HANDLED BY CURRENT VENDOR. HOWEVER, THE MAJOR PAYER GROUPS ARE MEDICARE AND MEDICAID. Q2) A list of Private Insurance payers so contractor can verify certification with those payers. A: VARIOUS INSURANCE PAYERS, WILL NEED TO DETERMINE AFTER THE BID IS AWARDED. * * * Q4) The Department's annual spend on send- out testing for the each of the past five years. A: FISCAL YEAR DEPARTMENT DEPARTMENT/THIRD PARTY FY 10/11 $4,680,833.00 $9,320,522.00 FY 0910 $4,401,298.00 $9,471,529.00 FY 08/09 $3,897,406.00 NOT AVAILABLE FY 07/08 $5,376,868.00 NOT AVAILABLE FY 06/07 $5,565,934.00 NOT AVAILABLE As the manager for the laboratory services contract, Ms. Cheryl Robinson prepared or gave the responses to both the written pre-bid questions and subsequent verbal questions posed at the pre-bid conference on behalf of the Department. The Department's written answer to question 1 was not completely responsive. Quest had asked for bill mix percentages for the major third-party payers. The Department stated that statewide percentages were unknown. As it turned out later, the Department did have historical information as to percentages from fiscal year 2009-2010, information that was a bit dated, but Ms. Robinson did not realize this when she responded. However, the Department did note in its response that the major payer groups were Medicare and Medicaid, which, based on historical data, the Department anticipated would continue to be the major third-party payers. While this response did not indicate what percentage either of these two third-party payers constituted, it did indicate that these were the two largest. The Department's answer to question 2 was, in one sense, a technically accurate response to an ambiguous question. The question asks for a list of Private Insurance payers. As the answer noted, until after the contract was awarded, and individuals began utilizing laboratory services under it, it would be impossible to know what private insurance providers would be involved prospectively. This answer provided no useful information. The question did not explicitly ask for a list of historic private insurance payers under the existing contract, though it this was the information actually sought by Quest, which the Department should have realized. The Department's answer to question 3 was completely responsive. It provided exact figures for the amounts of money spent by the Department under the contract for the previous 5 years. In fact, it also provided additional information not actually requested –- specifically, the total amount of money spent by the Department and third parties combined for each of the previous two fiscal years. At the pre-bid conference for the ITB, conducted on January 6, 2012, vendors verbally posed questions to the Department, to which the Department verbally responded. Quest asked, in essence, "Is it possible to get a breakdown of the third-party payers from LabCorp?" The Department responded, in substance, "No, it is not possible at this time, but the answer to Q&A #4 should help you determine what the Department and third-party spend is under the contract." Since Quest was asking for information from LabCorp, it again was requesting historical information, not future projections, as the Department understood. The question posed by Quest at the pre-bid conference was similar to its earlier question regarding bill mix percentages for the major third-party payers. Again, the Department did actually have some historical information responsive to the question at the time it was asked, but Ms. Robinson was not aware of that. The Bureau of Laboratories of the Department of Health was the program office and was responsible for making the determination as to which bidder would be awarded the contract. Dr. Max Salfinger is the Bureau Chief of the Bureau of Laboratories, Florida Department of Health. Neither Quest nor LabCorp had any information as to the pricing methodology that the Department would apply in assessing bids submitted in response to the ITB that was different from, or in addition to, that set forth in the Basis of Award and the Bid Price Page of the ITB. On January 18, 2012, both Quest and LabCorp submitted bids that the Department accepted as responsive to the ITB. LabCorp's bid package did not include the required staffing plan. The Department applied the same pricing methodology when assessing both Quest and LabCorp's bids. After reviewing both Quest and LabCorp's bids, the Department determined that LabCorp was the low bidder. The bid tabulation sheet dated January 20, 2012, only shows the "Grand Total" values submitted by the bidders. It lists three bidders, one of whom, CentreWell, has a notation indicating that it was "non-responsive – did not attend pre-bid conference." The bid tabulation sheet does not indicate any figures for volume discount pricing for the Balance of Line tests. It does not contain any reference to an hourly rate for phlebotomy services. The bid tabulation compared only the "Grand Total" amounts, reflecting the total of the bids to provide the 119 core tests. The Grand Total of LabCorp's bid was $6,235,265.99. The Grand Total of Quest's bid was $7,922,533.36. On January 20, 2012, the Department announced its intent to award the contract subject to the ITB to LabCorp. On January 25, 2012, Quest served the Department with a notice of intent to protest the Department's decision to award the contract to LabCorp. On January 26, 2012, Quest served the Department with a public records request seeking 19 categories of information relating to the ITB and the then-existing laboratory services contract between the Department and LabCorp. Quest's January 26, 2012 public records request sought more information from the Department than the pre-bid questions that it had asked the Department. Between approximately January 26, 2012, and February 2, 2012, the Department provided documents to Quest that were responsive to Quest's public records request. One of the documents the Department provided to Quest in response to its public records request was LabCorp's complete bid submitted in response to the ITB, which included the test- specific pricing that LabCorp had offered to the Department. Another document the Department provided to Quest in response to its public records request was a lengthy electronic Excel spreadsheet document. Ms. Robinson located the Excel document in an archive folder, using the computer system to which she has routine access, only after looking for more than a day. The Excel document was not a regular utilization report received from LabCorp, but had been received by the Department on August 10, 2010, as part of a submission from LabCorp in support of a proposed price increase. It contained detailed records of specific payments from various third-party payers under the contract for FY 2009-2010 and consisted of some 698 pages when printed out. It also contained a summary of these individual payments, both in actual dollar amounts paid and as percentages, for major payer groups (Medicare, Medicaid, and Private Insurance, for example) on a month-by-month basis. The payers identified in the Excel Document did not necessarily reflect all the same payers that would be responsible for the reimbursement of tests ordered pursuant to the contract that would be awarded under the ITB. It was only historical data, and not even the most recent historical data. However, the historic information it contained was responsive to Quest's first written pre-bid question and its first question at the pre-bid conference. Ms. Robinson immediately turned the Excel document over to the Office of the General Counsel because she had not recalled having it, and was concerned that the information should have been given to Quest in response to its pre-bid questions. The Excel document was the only document or written record in the Department's possession, custody, or control at the time Quest submitted its pre-bid questions which the Department believes should have been, but was not, produced in response to those requests. Ms. Robinson testified that she would have given it to Quest when the questions were asked if she had been aware of it at that time. Any failure of the Department to provide Quest with public records responsive to its pre-bid questions was unintentional. All public records provided to Quest were simultaneously provided, as requested, to LabCorp. On February 6, 2012, Quest served the Department with a formal Bid Protest claiming, among other things: that LabCorp's bid was non-responsive because it did not include a staffing plan; that the Department violated the public records law by failing to produce certain documents, including the Excel Document, in response to its pre-bid questions; and that the Department's pricing evaluation was inconsistent with the terms of the ITB. LabCorp sought and was granted permission to intervene in Quest's Bid Protest proceeding. On or about February 10, 2012, the Department held a meeting to consider the options available to it in responding to the Quest bid protest. This was the only meeting at which it discussed whether to reject all bids submitted in response to the ITB. Dr. Max Salfinger, Ms. Jodi Bailey, Ms. Renee Gregory, as well as Ms. Jan Myrick and some staff from the Office of the General Counsel attended the meeting. Prior to the meeting, Dr. Salfinger reviewed Quest's bid protest, and reviewed some documents relating to the drafts of the ITB before it was posted. In addition, Dr. Salfinger was generally familiar with the utilization data under the current contract. As Ms. Gregory later testified, the problems that had been raised by Quest in its Bid Protest were discussed at the meeting. The Department considered: LabCorp's failure to include a staffing plan; core pricing v. balance of line, and failure to comply with a public records request. At hearing, there was no testimony regarding LabCorp's failure to submit a staffing plan and it is clear that this issue played little, if any, role in the Department's decision to reject all bids. The failure of the Department to provide the Excel document in response to Quest's pre-bid requests for third-party payer bill mix percentages for the major payer groups was also discussed. The fact that the Department might have violated the public records law was of great concern. The Department concluded that there may have been a violation of the public records law, and that the Department failed to provide all of the information Quest had asked for in its pre-bid questions. Dr. Salfinger did not personally review the Excel document. Dr. Salfinger did not personally consider whether or not the Excel Document should have been given to Quest in response to its pre-bid request, and there was no discussion about whether or not the Department's failure to provide it made the competition more difficult for Quest. Prior to rejecting all bids, the Department made no effort to determine whether the information provided in response to Quest's public records request dated January 26, 2012, would have had any impact on Quest's ability to submit a competitive bid in response to the ITB had that information been provided earlier, in response to the pre-bid questions. A failure, or perceived failure, to comply with the public records law is a collateral issue. A violation of the public records law, or concern that the Department might suffer legal consequences for that violation, could only provide a rational basis to support a decision regarding the solicitation to the extent it was relevant to the solicitation. Documents that were not provided in response to pre-bid questions might be relevant to the solicitation whether or not there was a violation of the public records law. A failure to provide documents to Quest could be rationally related to the solicitation only if the failure was rationally related to Quest's ability to submit a competitive bid. A failure to even consider whether there is any rational connection between facts that are found and the choice that is then made is illogical and arbitrary. Had Respondent considered no other factors relevant to the solicitation, but decided to reject all bids solely because of its failure to provide documents to Quest, without even considering if that failure was rationally connected to the solicitation, the decision would have been arbitrary. The "quality" of the ITB, specifically including the missing sentence in the Basis of Award and the ambiguity in the Bid Price Page, was another topic discussed at the meeting. The Department made no effort to determine whether, or to what degree, the Balance of Line testing prices that Quest and LabCorp offered in their respective bids would have affected the total cost of their respective bids. Analysis of legal counsel indicated that the Department had failed to post a high quality bid document that clearly explained the criteria that would be used in awarding the contract. Prior to the meeting, Dr. Salfinger had reviewed documents relating to the drafts of the ITB before it was published, and he also relied upon legal counsel's analysis. Dr. Salfinger was aware that what he considered to be the "major sentence" in the Basis of Award provision had been inadvertently omitted. He had concern with "the overall message we [were] sending" in the solicitation. The language in the Basis of Award and the structure of the Bid Price Page made it unclear that the Department intended to award a single contract solely on the basis of the grand total bid for providing the core tests and would not be awarding separate contracts for individual core tests. While there was language in other portions of the ITB that suggested that only a single contract would be awarded, taken as a whole the ITB was not entirely clear on this point because of the omitted sentence. The ITB similarly was unclear as to how the percentage discount for Balance of Line tests or the hourly rate for phlebotomy services would be considered in the award of the contract, if at all. There was no discussion as to whether the alleged flaws in the ITB had actually harmed Quest's ability to provide a competitive bid. However, a reasonable person could conclude that the language in the Basis of Award and the structure of the Bid Price Page could have been a source of confusion to potential bidders even if it did not affect the bids of either LabCorp or Quest. Potential bidders may not have bid due to these uncertainties, which could have affected the solicitation. Petitioner did not prove that these factors were not considered by the Department. During the meeting, there was some discussion about whether the Department should reject all bids. There was no discussion regarding whether LabCorp would be harmed in any re- solicitation if all bids were rejected. There was no discussion as to what the impact on competition generally would be in any re-solicitation. Dr. Salfinger made the decision to reject all bids. The Department did not act arbitrarily in its decision to reject all bids. As stipulated, Respondent did not act dishonestly or fraudulently in rejecting all bids in response to the ITB. Aside from its contentions that Respondent acted arbitrarily, Petitioner did not allege that the Department's action in rejecting all bids was otherwise illegal, and Petitioner provided no evidence indicating that it was. LabCorp would likely be harmed in any re-solicitation of bids relative to its position in the first ITB, because potential competitors would have detailed information about LabCorp's earlier bid that was unavailable to them during the first ITB. The State of Florida would likely benefit in any re- solicitation of bids, because all new bidders would be aware of the bids that were submitted in response to the first ITB, and would probably try to lower their bids from these levels to improve their chances of being awarded the contract. On February 13, 2012, the Department, as required by section 120.57(3)(d), Florida Statutes, convened a meeting of the parties to the Quest Bid Protest proceeding. At the beginning of the meeting of the parties, Department counsel announced the Department intended to reject all bids unless Quest and LabCorp could reach a voluntary, amicable resolution of the issues raised by Quest. At the meeting of the parties, counsel for LabCorp expressed concerns over the possibility of the Department rejecting all bids due to the unduly prejudicial effect of the disclosure of LabCorp's pricing on its ability to compete in any future re-solicitation of bids for the contract. At the same meeting, LabCorp's counsel also expressed concern that Quest's Bid Protest had raised non-meritorious arguments hoping that the Department would reject LabCorp's bid or would reject all bids. In the absence of an agreed-upon resolution of Quest's bid protest between Quest and LabCorp, on February 14, 2012, the Department noticed its intent to reject all bids and to re-solicit bids for the relevant contract at a later date. Quest's protest, which remained pending, had not been referred to DOAH for a formal hearing. As the bidder initially notified that it would be awarded the contract, Petitioner's substantial interests were affected by the Department's subsequent decision to reject all bids. On February 16, 2012, LabCorp filed a Notice of Protest of the Department's decision to reject all bids, and filed its formal Bid Protest on February 24, 2012.
Recommendation Upon consideration of the above findings of fact and conclusions of law, it is RECOMMENDED: That the Department of Health enter a final order finding that the rejection of all bids submitted in response to ITB DOH 11-004 was not illegal, arbitrary, dishonest, or fraudulent, and dismissing LabCorp's protest. DONE AND ENTERED this 7th day of May, 2012, in Tallahassee, Leon County, Florida. S F. SCOTT BOYD 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 7th day of May, 2012.
