The Issue The issue is whether Respondent willfully has failed or refused to file a CE Form 1, Statement of Financial Interests (Form 1), for 2015, in violation of section 112.3145(8)(c), Florida Statutes (2018).
Findings Of Fact Respondent is presently employed by Miami-Dade County as a Purchasing Specialist in the Water and Sewer Department. She has worked for Miami-Dade County continuously since 1997 when she was hired as a clerical worker in the Water and Sewer Department. She assumed procurement duties when she earned a promotion in 2006 to her present position. In 2011, changes in internal operations in the Water and Sewer Department resulted in the assignment to Respondent of spending authority of up to $25,000, and Respondent has filed Forms 1, evidently without litigation, for 2011, 2012, 2013, 2014, and 2016. In her job, Respondent routinely documents whether county vendors have performed their contractual obligations. When a vendor fails to perform, Respondent contacts the vendor in an attempt to secure performance. If the vendor's nonperformance persists, Respondent places the vendor on probation. Prior to her employment with Miami-Dade County, Respondent worked for 17 years as a clerical worker with AT&T. By May 15, 2016, the Commission transmitted to the Miami-Dade County Supervisor of Elections a list of persons, including Respondent, who were required to file a Form 1 for 2015 by the deadline of July 1, 2016. On February 26, March 25, and April 22, 2016, the Supervisor of Elections emailed Respondent reminders to file timely her 2015 Form 1, and Respondent received each of these email reminders. On May 27, 2016, the Supervisor of Elections mailed Respondent a detailed letter reminding her of the obligation to file a Form 1 by July 1, supplying the necessary form, and indicating how to file the completed form. Respondent received this letter. Respondent testified that, in the spring of 2016, she was under considerable stress from a marital separation that had commenced when her husband had moved out of the marital home in February 2015. Undoubtedly, Respondent was distraught over the prospect of the failure of a marriage of 35 years' duration, but she timely filed her 2014 Form 1 shortly after the separation had taken place. Three factors are important for determining whether Respondent's failure to file from July 2, 2016, through August 30, 2017, was willful. First, Respondent's employment history includes many years of clerical work and 12 years of managing contracts for the Water and Sewer Department. Clearly, Respondent understands the importance of paperwork, knows how to complete and file forms, and recognizes that there are consequences for failing to file completed forms timely. Second, Respondent had filed four Forms 1 for the four years preceding 2015, so she was well aware of her annual duty to file this financial disclosure and of the general timeframe for when the form was due. Third, the Commission and Respondent's Supervisor of Elections showered Respondent with notices to file the 2015 Form 1. In addition to the above-noted communications prior to July 1, on July 29, 2016, the Supervisor of Elections mailed Respondent, by certified mail, a detailed letter advising that she was delinquent in filing a Form 1, but could file within a grace period that ended on September 1, 2016. This letter warns that a fine of $25 per day, up to $1500, would begin to accrue if the form is not filed by September 1 and, if Respondent fails to file the form within 60 days after the expiration of the grace period on September 1, "you will also be subject to penalties provided in Florida Statute 112.317." Respondent received this delinquency notice. On August 17, 2016, the Commission issued a courtesy notice, in the form of a bright orange postcard, advising Respondent that the grace period for filing the 2015 Form 1 would expire on September 1, 2016, and warning that she would accrue a fine of $25 per day (Automatic Fine) until she filed the form or accrued a total of $1500 in fines (Maximum Automatic Fine). On September 7, 2016, the Commission sent a courtesy letter advising Respondent that the grace period had expired on September 1, and the Automatic Fine was accruing and would continue to accrue until it reached the Maximum Automatic Fine. Respondent received these courtesy communications. On March 2, 2017, the Commission issued to Respondent a Notice of Assessment of Automatic Fine, which is the Maximum Automatic Fine. The notice advises how to appeal the Maximum Automatic Fine and even identifies acceptable grounds for setting aside the fine. The notice concludes that, if Respondent failed to appeal or pay the Maximum Automatic Fine within 30 days, a default order would be issued that could refer the matter to a collection agency or her employer for withholding a portion of her salary until the fine was paid. The notice also warns that the Commission could impose "[a]n additional civil penalty . . . if . . . a complaint is filed against you pursuant to Section 112.324, Florida Statutes." Respondent received this notice. On May 23, 2017, the Commission issued a Final Notice of Assessment of Automatic Fine for Failure to Timely File Form 1, Statement of Financial Interests. This letter advises that Respondent had waived her right to appeal the Maximum Automatic Fine and restates the rights of the Commission to obtain payment of the fine. Respondent received this notice. On August 2, 2017, the Commission issued a Notification of Issuance of Default Final Order advising Respondent that, if she failed to pay the Maximum Automatic Fine by September 7, 2017, the Commission would refer the matter to a collection agency. This letter warns that a failure to pay or arrange to pay the fine by the deadline would result in a copy of the Default Final Order being sent to Respondent's agency head. Respondent received this notice. On August 31, 2017, Respondent filed her 2015 and 2016 Forms 1. Based on the above-cited facts, Respondent's failure to file the 2015 Form 1 from July 2, 2016, through August 30, 2017, was intentional and, thus, willful. Addressing solely the collection of the Maximum Automatic Fine, on September 7, 2017, the Commission sent Respondent a letter stating that a recent statutory change required the Commission to notify her agency head to implement withholding from her salary. On October 11, 2017, the Commission sent a letter to the Finance Manager of the Miami-Dade County Finance Department. The letter states that, "[t]o timely resolve this matter," which refers to the Maximum Automatic Fine, the Commission requested that the manager withhold a portion of Respondent's salary and remit it to the Commission. The Finance Manager implemented salary withholding, typically $174.11 per month, as of November 6, 2017, and the Commission received the final payment on March 6, 2018, for a total of $1500. None of Respondent's Forms 1 for the years 2011 through 2016 discloses financial interests above the disclosure thresholds. At this point, as she explained tearfully at the hearing, Respondent is merely trying to keep her job so she can work a few more years and retire with a pension on which she can live.
Recommendation It is RECOMMENDED that the Commission enter a final order dismissing the Order Finding Probable Cause and this section 112.3145(8)(c) proceeding. DONE AND ENTERED this 8th day of October, 2018, in Tallahassee, Leon County, Florida. S ROBERT E. MEALE 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 8th day of October, 2018.
