The Issue Whether Florida Administrative Code Rule 18-2.031(7)} is an invalid exercise of delegated legislative authority under Subsection 120.56(3), Florida Statutes (2004).
Findings Of Fact 1. Petitioner ACLU-FL is a public interest organization with approximately 22,000 members in Florida. The great, majority of. the ACLU-FL. members are registered Florida, voters. ACLU-FL has an interest .in advancing civil liberty principles, including fair, accurate, .and reliable electoral. processes. 2. As part of its.activities, ACLU-FL is. involved. in litigation concerning voting issues. ; Following the,.2000 presidential. election, .ACLU-FL filed an, amicus. curiae. brief,in, Bush v. Gore.. .In.Siegel v. \LePore, ACLU-FL, intervened, ...,, challenging the butterfly ballot. More recently,,, ACLU-Fb, filed an amieus curiae brief in.litigation filed by Congressman Wexler concerning the manual, xecgynt, of votes. cast.on touchscreen. voting, systems. In. Florida Caucus. of Black. State.. egislators,. Inc. v. Crosby, __ DCA July 14, 2004), ACLU-FL -was, successful. in getting, a,writ of. Mandamus issued against the Department of Corrections, to, require . the Department to provide to. offenders, prior. to their. ,. discharge, an application form and other forms necessary ,to obtain the Governor's review for restoration, of their civil vights and to advise. the offenders that the Department. will assist in the preparation of the forms.at the offenders.' request. 3. ACLU-FL attempts to advance confidence in the voting ) system and the electoral process. The organization strives to ensure that the voting systems used’ in ‘Plorida are ‘aéeurate, reliable, and capable of providing for recounts and audits. 4. CCF is a government reform’ ddvodacy’ gzoup with’a basic interest in good go¥ernmént, including “issués such as campaign finance reform, ethics, reapportionment, and élé¢tion reform. Its members believe that’ éach votes balist- stiduia be cdtatéd as cast and it is impdértant to Be! abié to:verify ‘one's vote’ and have a record of each vote “as cast. CCF had apprd:cimately 90,000 members in: Florida: “ “5. BSCLC is an érgatization founded by the late Dr. “Martin 5 Luther King, ar} 'Raiph Abernathy; and Reverend. K: ‘Steele: ° This organization has:an“interest in election issues ‘and was: instrumental in the: pa#eage’ of the Voting Rights Act in’the 1960's. It is concerned with having: the’ vote of each voter counted as cast." 0°" bebe os “ 6. PFAWF is a civil: rights “and civil libétties ~~ 07 organization, which promotes constitutional rights: and the-.value of the vote. It ‘has“numerous voter registration projects, including the ‘Election Protection Project, which came about as a result of the 2000 presidential election.” ‘The Election Protection Project in Florida involves educating citizens on 2 their rights, the process of voting, and their legal recourse in the event of election irregularities. 7. No evidence was presented concerning the standing of the FVL to bring this rule challenge. . -8. . After the 2000 presidential election, the Committee on. Ethics and Elections prepared a report for the Florida Senate entitled .Review of the Voting Irregularities.of the 2000 ‘Presidential Election (the Report). -Among.other things, the Report generally.discusséd the types of voting .systems, including the Direct .Recording Electronic (DRE) systems and, the optical scan systems., At the time.of the Report,,..the DRE systems, sometimes .called touchscreen. | stems, were not used. in Florida. beter ee mM wo 7 9. In the optical scan systems, , the voter marks a paper ballot, which is fed into .an optical scanning.device which - "reads" the ballot and tabulates.the. results. The, paper ballot is preserved. In a, DRE, system, the voter. indicates his, or, her. choice by the use -of a touchscreen, .pushbuttons, or similar. devices, rather than a paper ballot. The Report, indicated that . most of the DRE systems,do no offer a paper. trail as backup for the vote cast. The evidence presented at. the, final. hearing. established that there. are DRE systems which gan, provide ‘a. paper trail by printing a picture of the screen as, it. appears to the voter when the voter indicates that his voting is completed or “by storing the screen image on microfilm. -However, the DRE -) systems currently certified by Respondent for use in Florida do not provide a paper trail. Ta PGs 10. It is clear from the evidencé at the ‘final hearing, that the -DRE systems do not allow for an-dvervoté: An overvote occurs ‘when a votér designates more namés than there are ‘persons to be elected to an office or designates Moré than oie answer to- a ballot question. ““s 97.021(20), Fla. ‘stat. (2004) DRE ‘systems either yéequiré the voter to Uiseléct a ‘pteviousty a designated ¢andidatebéfore voting for ‘andthér ‘candidate or automatically default“t6 the last candidate seléctéd: “ai. There G4 bean undetvoté using ‘thé’ DRE systems. Aa ~ ) undervote occurs when a voter does not properly designate any ‘ choice for an‘ office or a ballot question? ‘§"$7J021(93)', Fla. Stat. (2004). “pogptniient ‘requires that thé DRE “systems “it certifies mast “provide a notification’ te'the’voter‘of ‘an’ undervote before the voter casts his 6r “her‘Ballot. 12. After the difficult expétieiices "Witli'Ehe 2000 presidential election, the following 15 counties in Florida switched to a touchscreen Voting system: “Broward, Charlotte, Collier, Hillsborough; Indian River, Lake, Lee, Martin, “Miami- Dade, Nassau, Palm’ Beach, Pasco, Pinellas; Sarasota; “and Sumter. The aggregate voting population of the above-listed counties comprises slightly more than 50 percent of Florida's registered voters. Petitioners, ACLU-FL, CCF, and FSCLC, and Intervenor PFAWF have members who are registered voters in all 15 counties _ with touchscreen .voting systems. . 13. Respondent has the statutory responsibility to set the minimum standards for the hardware and software for electronic” ‘and electromechanical voting systems, which include touchscreen. , voting systems. .§ 101.015(1), Fla. Stat., (2004). Respondent must approve electronic .and'electromechanical -voting systems ‘prior to their use in.Florida. §§,101.015 and 101.5605, Fla. Stat. (2004). One of the requirements for approval of an electronic or electromechanical voting .system is, that the system "must immediately reject a.ballot where,..the number. of votes for. an office .or measure exceeds the number, of votes which the voter. -is entitled. to cast.or where the tabulating equipment reads the o “ballot as:-a ballot with no votes cast...". §.101.5606(3), Fla. Stat.. (2004). .If. the,system uses a,paper ballot,, the system must be capable ‘of accepting a ballot rejected pursuant. to. Subsection 101.5606 (3), Florida Statutes. (2004),. and recording a- no vote for any office that has been overvoted or undervoted. 14. Florida law;provides for recounts of votes. in certain situations. -If the margin of victory. for a, candidate or measure ‘in the first.set:of. unofficial returns is one-half of a percent . or less, a recount. of the votes cast is to be ordered by the | board certifying the results on that race or measure. § 102.141(6), Fla. Stat. (2004). If paper ballots are used, the paper ballots are put through the automatic tabulating equipment, and a determination is made whether the returns ; correctly reflect the votes cast. § 102.-147°(6) (a) j Fla. Stat. . (2004). . If no paper ballots are used, the canvassing ‘board examines the counters on the precinct ‘tabulatdrs to: détermine whether the total on the précinct tabullators are equal to the overall election £2eurn. “TE there “Ws “a ‘discrepancy, the: wer counters on the tabuildtors are -prigsuméa 6 Be ‘correct ; § 102.141(6) (b); Flas Stat. (2o0ays'soo . BN we oii 415. If the matgin of victory. in “thé sédond“set of unofficial teturns’is' board responsible fr certifying’ the eredtition #estilts shall. ordér a manual recoutit of the overvétes “aiid iimdervotés cast for that particular office’ or measure. ‘§ '4021166(4), Fla. Stat. (2004). A vote’ is to be counted "if ’théré! isa clear indication on the ballot’ that’. the’ voter has made a'definite: choiée." § 102.166(5) (a), Fla. Stat. “(2004) .° "Réspondént “Has ‘the cot responsibility*to adopt’ rules for each cettified voting. system : stating what constitutes "'a clear: indicatéen’on the-ballot ‘that the voter has wade’ a definite choice.'" -°§0102.166(5) (b); Fla. Stat. (2004). ~ Respondent also has‘ the’ authority to°* promulgate ~ rules which set forth recount procedurés for each: certified fa 10 ofie-quartér Of “dtie :péreéiit Sr “Wess; tHe. voting system in addition to the statutorily mandated recount _ procedures. § 102.166(6)(d), Fla. Stat. (2004). 16. On February 12, 2004, Respondent issued DE 04-02, Division of Elections Opinion on.manual recount procedutes for the touchscreen voting systens. _ Respondent opined: Because it is impossible, fe ra; ‘voter to overvote or make. stray marks. on an, electronic ballot, the manual “recount -provisions of section 102.166, Florida .... Statutes, do not apply and therefore, counties utilizing. touchscreen, voting systems are not required or authorized, to . print.or review the electronic ballot. images of undexvotes occurring in a ‘recolnted race. Be wy Me ye . 17. "During the 2004 legislative session, legislation was filed, SB 3004, which would have renamed paper ‘allots as marksense ballots and would have require on voting ‘systens using ‘marksense ballot, provided that manual recounts may not be conducted oe undervotes on touchscreen machines. The cs for cs SB 3004 deleted the provisions that recounts would be done only on marksense ballots. “the revised proposed legislation died ‘on special calendar. - . . “48. On april 13, 2004, Respondent agGaaed ite rule governing 1 recount procedures, and petitioners have’ challenged the validity of the portion ‘of the rile ‘dealing with recounts of touchscreen votes, Florida Administrative Code Rule 1g-2.031(7), which provides: iL When a manual recount is ordered and ) touchscreen ballots are used, no manual recount of undervotes and overvotes cast on a touchscreen system shall be conducted “since these ‘machines ‘do not allow‘a véter to cast an overvote and since a review of ‘ndetvotes cannot restilt ina détermination of voter intent as required by Section 102.166(5), F.S. In this‘case, ‘the results of the machine recount conducted pursuant to paragraph (5) (c) ‘shall be thé “official totals for the touchscreen ballots. 19. Petitioners, ACLU-EL, CCR,and FSCLC, ‘and Intervenor PPAWF, contend that Florida Administrative ‘Code Rule 18-2. 032.7), prohibiting manual recounts: of undervotes on the touchscreen voting systems, violates the statutory requirement for a manual recount and denies voters a method to oh Pa reset ca insure the accuracy of the votes cast. F a ke pan re 20. Respondent argues that if a. manual recount were to be goat 3 Set conducted of undervotes using the touchscreen voting systens it ra would be useless din determining that there was na clear Say indication on the ballot that the voter has made a "definite choice" because | the Screen would be blank. This. assertion may be true if the software or hardware on the voting machine does not malfunction. Tt does not deal with a } malfunction situation in which what actually appeared on the screen when the vote was cast was not what was actually recorded by the machine. It is not known whether such a malfunction has occurred in Florida because a copy of the screen image is not maintained. ) 12 21. . Respondent's expert, Paul Craft, acknowledged that the touchscreen voting systems have had problems with system software, but pointed out that the touchscreen voting systems certified by Respondent currently have no known system software problens. |
Conclusions For Petitioners: Benjamin R. Patterson, Esquire Jerry G. Traynham, Esquire Patterson & Traynham 315 Beard Street Post Office Box 4289 Tallahassee, Florida 32315- 24289 For Intervenor: Reginald gd. Mitchell, Eequite 1550 Melvin Street Tallahassee, Florida 32301 : For Respondent : George L. Waas, Esquire Office of the Attorney General” The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050
Other Judicial Opinions A party who is adversely affected by this ‘Fin entitled to judicial. review pursuant to Section “I2 Statutes. Review proceedings are governed by the F OF Appellate Procedure. Such proceedings are G ; filing the original Notice of Appeal withthe agéndy ‘chétk “oF”: the Division of Administrative Hearings and a copy, accompanied by filing fees prescribed by law, with the’ District ES Appeal, First District, or with the Dist: the Appellate District where the party xe ; : * appeal must be filed within 30 days ‘Of ‘Kéndition -6f ‘the ‘order ‘to be reviewed. . By Florida | 24 No
Findings Of Fact The petition herein is brought in the name of "Silvia S. Ibanez." It prays that attorneys fees and costs be awarded pursuant to Section 57.111 F.S. to "Petitioner Ibanez . . . as the small business prevailing party in this disciplinary action and any other relief deemed appropriate," in the amounts of $11,252.73 for the services of the Holland & Knight law firm, $13,822.50 for the services of the Moore, Hill and Westmoreland law firm, and $8,563.50 for the services of Robert Shapiro, Esquire. Herein, Ms. Ibanez seeks recovery of attorney's fees and costs incurred in DOAH Case No. 91-4100, styled, Department of Professional Regulation, Board of Accountancy v. Silvia Ibanez. That case involved a recommended order in Ms. Ibanez' favor, a final order against her, a direct appeal to the Florida First District Court of Appeal, a writ of certiorari from the United States Supreme Court, and subsequent remand activity. That disciplinary proceeding was initiated by the agency against Ms. Ibanez, a licensed certified public accountant (CPA), alleging violation of certain Board rules, most prominently the rules which have come to be known as the "holding out" and "fraudulent advertising" rules. Ms. Ibanez was the only respondent named in the July 30, 1991 amended administrative (disciplinary) complaint, the only initiating document provided. The January 15, 1992 recommended order therein shows that Silvia Ibanez was individually charged with disciplinary violations of the certified public accountancy statute and rules for (Count I) practicing public accounting in an unlicensed firm by various personal acts; (Count II) by appending certain designations to her name; and (Count III) by practicing public accounting by holding herself out as a CPA and appending the CPA designation after her name in advertising so as to imply she abided by Chapter 473 F.S. The closest that case came to dealing with any business entity other than Silvia Ibanez individually was an inarticulate phrase drafted into paragraph eleven of Count I of the amended administrative complaint, the thrust of which complaint was to define a violation of the advertising rule. That inarticulate paragraph eleven seemed to charge Ms. Ibanez individually for failing to license her law firm, "Silvia S. Ibanez, P.A.", as a CPA firm. From the Order of Reconsideration dated August 22, 1991, it appears that inarticulate and convoluted paragraph eleven allegation against Ms. Ibanez individually was only intended to address Count I as already framed and was withdrawn to avoid confusing, instead of clarifying, the issues in dispute. The recommended order contains the following findings of fact and conclusions of law which are significant to this fees and costs case: Finding of Fact 9: Neither the CFP nor CPA credential is part of the firm name, "Silvia S.Ibanez, P.A.-Law Offices," which also appears on Ibanez' business card. Ibanez' telephone directory listings and card at issue show the CPA and CFP credentials strictly appended to Respondent's individual name. Findings of Fact 16: Ibanez testified credibly that her intent in appending CPA and CFP credentials solely to her own name is to indicate that she is, in her own right, individually licensed as a CPA and CFP. Conclusion of Law 9: 3/ DPR asserted that Ibanez is engaged in "practicing public accounting" as set forth in one or both of the definitions of that term contained in subparagraphs (a) and (b) of Section 473.302(4) F.S. Ibanez countered to the effect that she was exempt from those statutory definitions on the basis of one or more of the three exclusions to the term "public accounting," which are set forth in Sections (1), (2) and (3) of Rule 21A- 20.011 F.A.C., and therefore, she could not be held to have violated any portion of Chapter 473 F.S. More specifically, Ibanez urged that because she is working as an attorney within a P.A. (which she asserted is an employer not required to be licensed under Chapter 473 F.S.), she falls under exception 21A-20.011(1) F.A.C. The April 23, 1992 final order of the Board and the appellate court orders in the disciplinary case did not alter the foregoing findings of fact or specifically address the foregoing conclusion of law, which does little more than recite a legal position posited by Ms. Ibanez before DOAH in the disciplinary case. At the time of the recommended order in the disciplinary case, Rule 21A-20.011(1) F.A.C. provided: "Practice of, or practicing public accountancy" as defined by Section 473.302(4) F.S., shall exclude any of the following: Services rendered by a licensee as an employee of a governmental unit or an employee rendering accounting services only to his employer as long as that employer is not required to be licensed under F.S. 473,... Ms. Ibanez' law firm was never licensed as a CPA firm, and she did not purport to be the qualifying licensee for a CPA firm. Concurrent with most of the duration of the disciplinary action, Ms. Ibanez was also pursuing a Section 120.56 F.S. rule challenge to another rule, the "holding out" rule, Rule 21A-20.012 F.A.C. She had initiated that challenge in her capacity as a licensed CPA. As Petitioner in that rule challenge, Ibanez et al v. Board of Accountancy et al, DOAH Case No. 3336R, Ms. Ibanez posited herself as a sole practitioner and an employee of the law firm, "Silvia S. Ibanez, P.A.", but the law firm was not a party to, and did not participate in, the rule challenge. "Silvia S. Ibanez, Esquire" appears on the copies list of the final order in the rule challenge. That final order declared the "holding out" rule invalid on January 15, 1992. The agency et al appealed that final order to the First District Court of Appeal, but dismissed the appeal on May 6, 1992. Any fees and costs associated with the rule challenge were disposed of in a November 23, 1992 Final Order of Dismissal entered in Silvia S. Ibanez v. Board of Accountancy DOAH Case No. 92-0427F and may not be recouped in the instant proceeding. Based on all the available evidence, 4/ the law firm of "Silvia S. Ibanez, P.A." also did not participate in the disciplinary case even as a legal representative of Ms. Ibanez, the individual, until after the recommended order was entered. The rule challenge case, DOAH Case No. 91-3336R, was heard on August 1-2, 1991. The disciplinary case, DOAH Case No. 91-4100, was heard on August 27, 1991. Pursuant to a stipulation during the formal hearing of the disciplinary case on August 27, 1991, on September 20, 1991, the parties designated items to be adopted into the record of the disciplinary case from the rule challenge case. For convenience, these items were copied and filed in the disciplinary case. 5/ Because the "holding out" rule had been held invalid, the disciplinary case was considered by the hearing officer to be a case of first impression. Because the "holding out" rule had been held invalid, only the statute utilizing the term, "holding out", was applied to one count of the disciplinary case. However, the other existing rules could still be applied as plead. The January 15, 1992 recommended order in DOAH (disciplinary) Case No. 91-4100 recommended finding Ms. Ibanez was not "holding herself out as a certified public accountant", finding her not guilty of all charges alleged under Counts I through III, and dismissing all counts. Contrary to the conclusions reached in the recommended order in the disciplinary case, the Board of Accountancy's final order found and concluded that Ms. Ibanez was guilty on all three counts and should be disciplined with a reprimand. Ms. Ibanez, in her individual name, appealed that final order to the Florida First District Court of Appeal, which per curiam affirmed the Board's final order by its judgment entered June 9, 1993. The United States Supreme Court granted a writ of certiorari and, after oral argument, issued its opinion in Ms. Ibanez' favor. That appellate case was also styled in her name, individually. By a June 13, 1994 order, the Supreme Court mandated the Florida First District Court of Appeal to act in conformity with the Supreme Court opinion. The First District Court of Appeal issued its own mandate to the Board on October 5, 1994. The Board issued its final order on remand on January 31, 1995. 6/ It is undisputed that Ms. Ibanez is the prevailing party in the underlying disciplinary case, DOAH Case No. 91-4100. Her petition which initiated the present fees and cost case was filed with DOAH on February 13, 1995 and is timely under Section 57.111 F.S. and Rule 60Q-2.035 F.A.C. It did not request an evidentiary hearing. The agency's February 28, 1995 response herein was timely. It disputes whether the Petitioner is a small business party; disputes the amount, rate, and reasonableness of the attorneys' fees claimed; and asserts that the agency's actions were substantially justified at the time the underlying disciplinary case was initiated. It does not specifically request an evidentiary hearing. 7/ By the failure of both parties to request an evidentiary hearing and to respond to the notice and order to show cause entered herein on June 28, 1995, they are deemed to have waived an evidentiary hearing in this cause. Without any supporting documentation, the petition asserts standing upon the following bare allegation: 12. Ibanez meets the prevailing party provisions of F.S. Section 57.111 and is a "small business" party, with her principal place of business in Orlando Florida. Ibanez has no employees other than herself. As of the date the state agency initiated this proceeding, Ibanez was the sole shareholder of her law firm professional association ("P.A.") and the P.A.'s net worth did not exceed $2,000,000.00. The petition alleges in conclusionary terms that the agency's actions were substantially unjustified and that no circumstances exist that would make an award of attorney's fees unjust, but no reason or argument is advanced in support of the allegation. The petition claims the following amounts as fees and costs: Petitioner incurred substantial legal fees and costs at the administrative and appellate levels, as explained below: Fees & Costs Holland & Knight $11,252.73 [Exhibit "H"] Moore, Hill & Westmoreland $13,822.50 [Exhibit "I"] Robert Shapiro, Esq. $ 8,563.50 [Exhibit "J"] Even after considering financial assistance to keep the case alive, Petitioner incurred in excess of $15,000 in attorney fees and costs. (Emphasis supplied) The language just emphasized does not provide any information as to which portions of the fees and costs, if any, constituted "financial assistance to keep the case alive." 8/ Ms. Ibanez' affidavit to the effect that the participation of co- counsel was required is attached to her petition, but her affidavit does not address the reasonableness of the fees claimed by each of the named law firms. Therefore, her affidavit does not meet the requirements of Rule 60Q-2.035(3) F.A.C. "Exhibit H" of the petition addresses the $11,252.73 claimed by Ms. Ibanez on behalf of Holland and Knight. That exhibit does not include the affidavit required by Rule 60Q-2.035 (3) F.A.C. Petitioner also filed an unauthorized "Supplement to Exhibit H" on February 28, 1995. See the Preliminary Statement, above. Although such "supplements" are not authorized by statute or rule and no order permitted it, the Supplement has been considered because it was filed within the 60 days provided by statute and rule for the filing of the original petition and Respondent has not objected to it or moved to strike. Unfortunately, the Supplement also does not include an affidavit executed by any attorney with Holland and Knight. 9/ "Exhibit I" of the petition addresses the $13,822.50 claimed by Petitioner on behalf of Moore, Hill and Westmoreland. It contains an affidavit of J. Lofton Westmoreland on behalf of "Westmoreland, Hook and Bolton, P.A," which substantially complies with Rule 60Q-2.035(3) F.A.C. While it is no small matter that there is a discrepancy in the firm names cited by Petitioner and Mr. Westmoreland, Respondent agency also has not raised this as an issue. Accordingly, the undersigned, being cognizant of the frequent shift and drift of law firm names, infers that regardless of which firm Mr. Westmoreland is now associated with, his affidavit applies to this case. 10/ Therefore, Mr. Westmoreland's affidavit has been considered and found sufficient on its face. This finding does not, however, validate all of the claimed fees and costs. 11/ "Exhibit J" of the petition addresses the $8,563.50 claimed by Petitioner on behalf of Robert Shapiro, Esquire. There is nothing signed by Mr. Shapiro, let alone an affidavit that meets the requirements of the applicable statute and rule. The breakdown provided shows Mr. Shapiro's fees are based on appellate work on the disciplinary case at the United States Supreme Court level, and that he has been paid portions thereof so that the balance owed is $2,300.00. The only cost listed is $28.50 in Federal Express charges. 12/ All the fees and costs claimed herein apply to the period after the recommended order in the disciplinary case and almost all apply after the commencement of the appeal process from the final order altering that recommended order. The courts have already ordered the Department of Business and Professional Regulation, Board of Accountancy to pay Ms. Ibanez $5,028.55 for the printing of the record and $300.00 as clerk's costs. These amounts do not seem to be broken out of the petition's supporting exhibits and none of the documentation provided with the petition discusses whether or not the appellate fees and costs claimed herein could have been requested before the courts and were not requested, were requested and denied, or were not available from the courts. There is an indication that some fees and costs were requested on appeal and denied by the courts, but there is no detail as to which fees and costs were claimed at the appellate level and there is nothing to show the legal reason for denial. Consequently, it is impossible to assess from the documentation provided which fees and costs are still to be decided on remand. 13/ Because the foregoing facts are dispositive of the petition, it is unnecessary to make further findings of fact on the issue of substantial justification vel non of the agency at the time the disciplinary action was initiated.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is ORDERED: The Petition for attorney's fees and costs is denied and dismissed. DONE AND ORDERED this 29th day of August, 1995, in Tallahassee, Florida. ELLA JANE P. DAVIS 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 29th day of August, 1995.
The Issue Whether Rule 22B-1.055(2)(d), Florida Administrative Code, is an invalid exercise of delegated legislative authority?
Findings Of Fact By letter dated April 17, 1985, A. J. McMullian III, State Retirement Director, advised C. H. Wigley, Jr., Acting Executive Director of the Escambia County Utilities Authority (ECUA) that the individual petitioners were eligible for inclusion in the Regular Class, but not the Elected State Officers' Class, of the Florida Retirement System. Respondent's Exhibit No. 8. "The major difference between the Elected State Officers' Class and the Regular Class is the ESOC members . . . receive a higher retirement benefit . . . for the same number of years of service." (T. 38) To finance higher benefits the public employer pays a higher amount, set on "an actuarily sound basis." Deposition of Andrew J. McMullian, III, page 19. A few years back, "Escambia County and the City of Pensacola, felt it was time . . . to combine . . . utilities' systems into one agency. The City had just completed construction of a twenty-million-gallon-a-day treatment plant and had excess capacity. [Unincorporated] Escambia County had the . . . customers but not the facilities . . ." (T. 74) "Escambia County was faced with extending or having to go to the bond market to borrow significant money to buil[d] treatment facilities . . . [but] it was more practical that the City and County get together." (T. 88) By special act the legislature created the ECUA to purchase and operate the water and sewer systems that had belonged to both City and County, and to exercise "all powers with respect to water and sewer, and such other additional utilities as may be hereafter designated . . . which are . . . could be, or could have been but for this act, exercised by the City of Pensacola or Escambia County, Florida." Ch. 81-376, Section 3, Laws of Florida (1981). The ECUA came into existence on October 1, 1981, (T. 90) and now provides natural gas service (T. 95) at least outside the franchised area of the City of Pensacola. Ch. 85-410, Section 5(r), Laws of Florida (1985). The ECUA is authorized to provide utility services to the extent of its capacity to do so even in areas outside Escambia County. Ch. 85-410, Section 5(q), Laws of Florida (1985). By passing a resolution and signing an agreement effective October 1, 1982, (T. 108), the ECUA joined the Florida Retirement System and "decided to purchase past service back to October, '81, for all employees who were employed as of October 1st, '82." (T. 107) See Respondent's Exhibit No. 5. Beginning with the 1984 elections, candidates for the ECUA Board had to meet the same qualifications as candidates for county office and had to live in the county commission district they sought to represent. Each of the five single-member districts has the same boundaries as the corresponding county commission district. Terms of ECUA board members are staggered just as county commissioners' terms are and, beginning in January 1987, all members will be elected for four-year terms, as county commissioners are. Each ECUA board candidate is subject to state election laws governing filing papers, qualifying fees and the like, to the same extent as candidates for county office are; and each takes an oath before entering upon the duties of the office. Petitioners' Exhibit No. 2. The "Florida Retirement System . . . is a statewide consolidated system that covers public programs and employee groups on all levels of government, state, county, school board, cities, special districts Deposition of Andrew J. McMullian, III, page 13. State retirement programs before the Florida Retirement System, which came into existence on December 1, 1970, did not distinguish between elected officials and regular employees. Deposition of Ruth Sansom, page 16. After the Elected State Officers' Class had been created, the law was again amended, effective July 1, 1981, to make "county elected officials, including any sheriff, tax collector, property appraiser, supervisor of elections, clerk of the circuit court, county commissioner, school board member, or elected school board superintendent," Section 121.052(1)(g), Florida Statutes (1985), eligible for participation in the Elected State Officers' Class. Chapter 81-214, Laws of Florida (1981). Aside from holders of the offices named, the Comptrollers of Orange and Escambia Counties and the Mayor of Metropolitan Dade County are enrolled in the Elected State Officers' Class. (T. 40) Respondent viewed the Mayor of Metropolitan Dade County as differing in name only from a county commissioner and allowed participation in the Elected State Officers' Class on that account. (T. 50) With respect to the Orange and Escambia County Comptrollers, "the majority in one case of the duties of the Clerk were transferred to the Comptroller and in the other case, it seems like it gas about a 50/50 split of the prior duties being transferred over to the Comptroller." (T. 50) In these circumstances respondent decided that "based on the functions that they were performing, the duties of the office, that whether the title said Comptroller or Clerk, they essentially fit the definition." (T. 50) In response to a question from respondent's Assistant Director, Lew Dennard, respondent's chief legal officer, Augustus D. Aikens, Jr., wrote a memorandum dated October 20, 1981. Petitioners' Exhibit No. 1. As phrased by Mr. Aikens, the question was whether the statutory language "limits membership in the Elected State Officers' Class to those elected county officers who are enumerated in Section 121.052(1)(g)"? In the memorandum, Mr. Aikens declared himself of the opinion that the language "any county elected officer" was intended to establish the class of individuals eligible for participation in the Elected. State Officers' Class; and the term "including" followed by an enumeration of elected county officers was merely intended to be descriptive of the individuals eligible for inclusion in the Elected State Officers' Class as county elected officers. Accordingly, the class is not exhausted by the enumeration found in subsection (g). Other elected county officers are also includable in the Elected State Officers Class. Petitioner's Exhibit No. 1. On November 6, 1984, however, respondent promulgated Rule 22B-1.05, Florida Administrative Code, which did not make participation in the Elected State Officers' Class of the Florida Retirement System mandatory for any county officer and provided: Effective July 1, 1981, participation in the Elected State Officers' Class of the Florida Retirement System shall be optional for the following elected county officers: sheriff, tax collector, property appraiser, supervisor of elections, clerk of the circuit court, county commissioner, district school board member, and elected district school board superintendent. The elected officer may transfer to and participate in the Elected State Officers' Class by submitting an application to the Administrator within one year from July 1, 1981 if already in office on that date, or within one year from the date of election if elected after July 1, 1981. Officers appointed to fill an unexpired term may join the Elected State Officers Class under this provision. An elected county officer who transfers to the Elected State Officers' Class and who fails to win reelection to an elected office shall cease to be a member of the class. If the member returns to a position covered under the Florida Retirement System he shall receive credit thereafter based on the class of membership of his position. 22B- 1.055(2)(d) In the substantial interest proceedings, Case No. 85-1718, respondent has taken the position that this rule provision, along with the statutory language it implements, preclude petitioners participation in the Elected State Officers' Class of the Florida Retirement System.
The Issue The issue to be determined is whether Petitioner was correctly defaulted into the Florida Retirement System (“FRS”) Investment Plan after he was hired into an FRS-eligible position on November 1, 2019.
Findings Of Fact Petitioner was employed in FRS-eligible positions, with the Florida Department of Corrections and other participating employers, at various times from 1985 through 1998. At all of those times, the Pension Plan was the only retirement program available for eligible employees. In 2002, the Investment Plan became available for employees participating in FRS. Petitioner was not employed in an FRS-eligible position at that time. Petitioner began employment with the Florida Department of Children and Families (“DCF”), an FRS-participating employer, on or about November 1, 2019. Following his return to FRS-eligible employment, Petitioner was provided an initial choice period with a deadline of July 31, 2020, by 4:00 p.m., Eastern Time, to elect the Pension Plan or the Investment Plan. DCF had initially provided an incorrect Social Security number for Petitioner to the Florida Department of Management Services, Division of Retirement, which administers the FRS Pension Plan and also is responsible for review and correction of any Social Security number discrepancies. Upon correction of Petitioner’s Social Security number, Petitioner’s deadline for his initial choice period was extended to October 30, 2020, and emails and other communications were sent to him reflecting the new deadline. At some point prior to Petitioner’s receipt of the first email informing him of the new, later deadline, Petitioner believed he had “logged on to the MyFRS.com website and made the election to remain in the Pension fund.” At the time Petitioner thought he had logged onto the MyFRS.com website from his office computer, Petitioner was in the process of transferring from the DCF office in Bartow to the DCF office in Orlando, where he had accepted a new legal position. Petitioner testified that he “would have made a screen capture of the confirmation [he] would receive after submitting [his Pension Plan election]” but that, “because [he] was using the computer from Bartow, the screen capture … would have been on that particular computer. It didn’t transfer when [he] got [his] new computer in Orlando.” Petitioner also testified that, after he had transferred to Orlando, he never inquired as to whether he or anyone else could access the computer in Bartow and get a copy of the confirmation screenshot he thought he would have captured. Ms. Olson, the Director of Policy, Risk Management, and Compliance in the SBA Office of Defined Contribution Programs, testified that if the Plan Choice Administrator had received an election form from Petitioner, then, in the ordinary course of business, it would have caused a statement to be sent to him confirming that the election was received. On or about August 5, 2020, a “Confirmation of Plan Choice Default – Investment Plan” notice was sent to Petitioner, informing him that he had been defaulted into the FRS Investment Plan. On or about August 10, 2020, a “Confirmation of Plan Choice Election Reversal” notice was sent to Petitioner, confirming reversal of the Investment Plan default election due to the mix-up over Petitioner’s Social Security number. Petitioner was unable to provide any evidence of having logged into MyFRS.com to make the election to the Pension Plan option, either through a screenshot showing he had made the election, a notice or email received from the website of his having made the election, or any communication from the Division of Retirement or SBA stating the election had been made. Moreover, Respondent has no record of Petitioner utilizing an election during his initial choice period, whether ending on the original July 31, 2020, date or the extended date of October 30, 2020. Having no record of Petitioner’s election to participate in the Pension Plan to act otherwise, Petitioner was, therefore, enrolled in the Investment Plan. There is no support or evidence in the record for a finding that Respondent or its agents missed or otherwise failed to properly record an affirmative election of the Pension Plan option by Petitioner. On or about November 30, 2020, Petitioner submitted a Request for Intervention (“RFI”), asserting that he had elected the Pension Plan and requesting that his retirement account be “returned” to the Pension Plan. Petitioner’s RFI was denied. On December 30, 2020, Petitioner filed a PFH, again asserting that he had made an election to participate in the Pension Plan “prior to July 31, 2020.” This proceeding followed. There is credible evidence that Respondent sent numerous reminders to Petitioner during his “choice period” in 2019 and 2020, both via mail and email, that he needed to make an election between the Investment Plan and the Pension Plan before the original, then the extended election deadline. Petitioner, an articulate and thoughtful individual, was unable to provide any competent proof that he affirmatively elected to remain in the Pension Plan. Therefore, Respondent had no choice but to enroll him in the Investment Plan.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the State Board of Administration denying Petitioner’s request for relief. DONE AND ENTERED this 20th day of April, 2021, in Tallahassee, Leon County, Florida. S ROBERT S. COHEN Administrative Law Judge 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 20th day of April, 2021. COPIES FURNISHED: Ruth E. Vafek, Esquire Ausley McMullen 123 South Calhoun Street Tallahassee, Florida 32301 Ash Williams, Executive Director and Chief Investment Officer State Board of Administration 1801 Hermitage Boulevard, Suite 100 Post Office Box 13300 Tallahassee, Florida 32317-3300 Laddie Buholz 8030 Jozee Circle Orlando, Florida 32836 Laddie Buholz 1902 Page Avenue Orlando, Florida 32806
The Issue Case No. 97-3049 Did Respondent conduct business as a private investigative agency during the period of January 1, 1997, through April 7, 1997, without a Class “A” Private Investigative Agency License in violation of Section 493.6118(1)(g), Florida Statutes? Did Respondent perform the services of a private investigator during the period of January 1, 1997 through April 7, 1997, without a Class “C” Private Investigator License in violation of Section 493.6118(1)(g), Florida Statutes? Case No. 97-3096 Did Respondent conduct business as a private investigative agency during the period of January 1, 1997, through April 7, 1997, without a Class “A” Private Investigative Agency License in violation of Section 493.6118(1)(g), Florida Statutes? Did Respondent perform the services of a private investigator during the period of January 1, 1997, through April 7, 1997, without a Class “C” Private Investigator License in violation of Section 493.6118(1)(g), Florida Statutes?
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: The Department is the agency of the State of Florida charged with the responsibility of investigating and enforcing the provisions of Chapter 493, Florida Statutes. Case Number 97-3049 Respondent Dormal Cavilee was not licensed as a private investigator in the State of Florida and did not possess a State of Florida Class “C” Private Investigator license at any time material to this proceeding. Respondent Dormal Cavilee was not licensed as a private investigative agency in the State of Florida and did not possess a State of Florida Class “A” Private Investigative Agency license at any time material to this proceeding. During the period of January 1, 1997, to April 7, 1997, Respondent Dormal Cavilee performed private investigations, as defined in Section 493.6101(17), Florida Statutes, for Geoffrey A. Foster, attorney-at-law and for Dwight M. Wells or Deborah Wells (Wells), attorneys at law. While performing private investigations for Foster and Wells during the period of January 1, 1997 to April 7, 1997, Respondent Dormal Cavilee was under contract and was not solely and exclusively employed by Foster or by Wells. Additionally, an employer-employee relationship did not exist between Foster or Wells and Respondent Dormal Cavilee in that neither Foster nor Wells deducted federal income tax or social security tax, or furnished any health or retirement benefits to Respondent Dormal Cavilee. Case Number 97-3096 Respondent Mary Cavilee was not licensed as a private investigator in the State of Florida and did not possess a State of Florida Class “C” Private Investigator license at any time material to this proceeding. Respondent Mary Cavilee was not licensed as a private investigative agency in the State of Florida and did not possess a State of Florida Class “A” Private Investigative Agency license at any time material to this proceeding. During the period of January 1, 1997, to April 7, 1997, Respondent Mary Cavilee performed private investigations, as defined in Section 493.6101(17), Florida Statutes, for Dwight M. Wells or Deborah Wells (Wells), attorneys at law. While performing private investigations for Wells during the period January 1, 1997, to April 7, 1997, Respondent Mary Cavilee was under contract and was not solely and exclusively employed by Wells. Additionally, an employer-employee relationship did not exist between Wells and Respondent Mary Cavilee in that Wells did not deduct federal income tax or social security tax, or furnish any health or retirement benefits to Respondent Mary Cavilee. Case Numbers 97-3049 and 97-3096 A billing statement from Respondent Dormal Cavilee and Respondent Mary Cavilee dated March 1, 1997, to Dwight M. Wells, shows the date of investigation, the person performing the investigation (either Dormal Cavilee or Mary Cavilee), the amount of time involved in performing the investigation, the hourly rate and the total amount charged. The billing statement shows that the investigations are related to the defense of Grady Wilson in Case Number CF93-5094-A1XX, a criminal case in Polk County, Florida. Nothing on the billing statement indicates that it is a statement for private investigations furnished by a private investigative agency referred to as Criminal Defense Investigations. The Motion for Payment of Costs filed by Dwight M. Bell in Case Number CF93-5094-A1XX provides in pertinent part: That the following expense was incurred during the investigation, discovery process, pre-trial preparation and trial of this cause: Criminal Defense Investigations $2,500.00 Both the Order Approving Additional Funds for Investigation Costs dated March 3, 1997, and the Order Approving Motion for Payment of Costs refer to the payments as payment for investigations performed by criminal defense investigations. Neither Respondent Dormal Cavilee nor Respondent Mary Cavilee advertised as providing, or engaged in the business of furnishing private investigations, notwithstanding language in the motion and orders referred to above which was apparently referring to the type of services being performed rather than private investigations being furnished by a private investigative agency. On April 7, 1997, a Cease and Desist Order was issued to both Respondent Dormal Cavilee and Respondent Mary Cavilee. The record indicates that both Respondent Dormal Cavilee and Respondent Mary Cavilee honored the Cease and Desist Order and cease performing any private investigations other than in an employer-employee relationship with Wells. Chapter 493, Florida Statutes, did not apply to such activity. See Section 493.6102, Florida Statutes. Neither Respondent Dormal Cavilee nor Respondent Mary Cavilee attempted to “cover-up” any of their activities when questioned by the investigator for the Department. Respondents knew or should have known that their activity in regards to investigations for Foster and Wells required that they be licensed under Chapter 493, Florida Statutes. However, there appeared to be some confusion on the part of the Respondents as to whether their relationship with the defense attorneys required that they be licensed under Chapter 493, Florida Statutes.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law and review of Rule 1C-3.113, Florida Administrative Code, concerning disciplinary guidelines, range of penalties, and aggravating and mitigating circumstances, it is recommended that the Department in Case Number 97-3049 enter a final order: (a) dismissing Counts I, II, and IV of the Administrative Complaint; (b) finding Respondent Dormal Cavilee guilty of the violations charged in Count III and V of the Administrative Complaint, assess an administrative fine in the amount of $300.00 for each count for a total of $600.00. It is further recommended that the Department in Case Number 97-3096 enter a final order dismissing Counts I and III of the Administrative Complaint; and finding Respondent Mary Cavilee guilty of the violations charged in Count II of the Administrative Complaint, assess an administrative fine in the amount of $300.00. DONE AND ENTERED this 2nd day of January, 1998, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE 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) 921-6947 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of January, 1998. COPIES FURNISHED: Hon. Sandra B. Mortham Secretary of State The Capitol Tallahassee, Florida 32399-0250 Don Bell General Counsel The Capitol, Plaza Level-02 Tallahassee, Florida 32399-0250 Kristi Reid Bronson, Esquire Department of State, Division of Licensing The Capital, Mail Station Four Tallahassee, Florida 32399-0250 Dormal Dean Cavilee 1900 Queens Terrace Southwest Winter Haven, Florida 33880 Mary Louise Cavilee 2768 Janie Trail Auburndale, Florida 33823
Findings Of Fact The parties to this proceeding were afforded due and proper notice according to law of the final hearing. Petitioner was granted a Mandatory Conditional Release (hereinafter MCR) from a Florida state prison on October 31, 1975. He would have been Supervised in the same manner as a person released on parole until the expiration of his sentence on March 7, 1978. On October 8, 1976, the Petitioner received a directed verdict of acquittal from the Honorable Judge Allen R. Schwartz in Case No. 76-6250, State of Florida v. Walter Thomas, in the Eleventh Judicial Circuit Court in and for Dade County, wherein the Petitioner was charged with the crime of sexual battery against a female in violation of Section 794.011, Florida Statutes. The Respondent Subsequently charged Petitioner with the violation of Condition 8 of his MCR Certificate " . . . by failing to live and remain at liberty without violating the law, in that on or about July 6, 1976, in Dade County, Florida, [he] did unlawfully participate in the involuntarily sexual battery of . . ." a named female. Pursuant to Petitioner's request, Respondent held what it terms a "majority" final revocation hearing on February 4, 1977, with Commissioners Maurice G. Crockett, Ray E. Howard, Annabelle P. Mitchell and Charles J. Scriven present. The Respondent revoked Petitioner's MCR in an Order dated February 10, 1977, signed by Commissioners Roy W. Russell, Ray E. Howard, Maurice G. Crockett and Armond R. Cross. On April 7, 1977, the Commission issued an Amended Order correcting a clerical omission in its original order. Although Respondent had the discretion to grant credit for the time Petitioner spent on MCR no such credit was granted. On July 1, 1977, Petitioner was again released on her to remain thereon until the expiration of his sentence. Since he had not received credit for the time previously spent on NCR his current sentence expiration date has been extended from March 7, 1978 to "November 11, 1978. Section 947.23(1), Florida Statutes, states that: "As soon as Practicable after the arrest of a person charged with violation of the terms and conditions of his parole, such parolee shall appear before the commission [Respondent] in person . . . and a hearing shall be had in which the state and the parolee may introduce such evidence as they may deem necessary and Pertinent to the charge of parole violation." The same section further provides that after the foregoing hearing the Commission shall make findings upon such charge of parole violation and shall enter an order determining whether the charges have been sustained and by that order shall revoke the parole or reinstate the original order of parole or enter such other order as the Commission may deem proper. The evidence in this case establishes that the Respondent has an established procedure and practice by which it implements the foregoing statutory requirement. Rule 23-16.09(3), F.A.C., entitled "Hearings; Revocation of Parole" sets forth, in part, this Procedure and Practice. It does not, however, set forth the complete procedure and Practice. It provides that a parolee can elect to appear either before a majority of the Commission or one Commissioner. Rule 23-16.09(3), F.A.C. Apparently following that Provision Respondent conducts two types of final parole revocation hearings. The great majority of these are referred to as "single member hearings" wherein the alleged violator agrees to have a single member of the Respondent Commission conduct the final hearing. The remainder are referred to as "majority member hearings" where a hearing panel of four members of the Commission conduct the final hearing. The manner in which the foregoing types of hearings are conducted by Respondent and a final order entered pursuant thereto has, by the Practice of the agency, become quite formalized and definite but has not been codified in the Florida Administrative Code. The procedure and practice of Respondent in the conduct of single member parole revocation hearings is well established and inflexible. The single member hearings are held every Friday with one member of the Commission present and conducting the hearing. The Commissioner receives the waiver of the alleged violator to a majority hearing and resolves the question of the alleged violator's right to counsel. The charges are then read, witnesses sworn and permitted to testify, evidence taken and the alleged violator permitted to admit or deny the charges and to testify. The single Commissioner takes notes and fills out a brief one page form which in part contains his recommendation and eight lines for the alleged violator's Statement, mitigating circumstances and witness statements. This form along with all evidence presented at the hearing is placed in the alleged violator's file which is then returned to Tallahassee, Florida, for further action. As soon as possible upon arriving in Tallahassee, usually within the next five (5) working days, the case is placed on the voting panel docket. The Commission maintains a duty roster which requires four members of the Commission to meet in the regularly scheduled voting panel meeting, normally held on Thursday of each week, to review those cases docketed for that panel. This duty roster for the voting panel is compiled without regard to which Commissioner conducted the hearings which are to come before the voting panel. Each Commissioner on the voting panel has had access and opportunity to review individually all information, evidence, recommendations and other matters in the file on the alleged violator and to review the record of the hearing. The evidence, however, establishes that it is rare indeed for any of the members of the voting panel to have read the record of the hearing on which they vote. The evidence further establishes that the Commission has no requirement that those members of the voting panel who did not hear the case read the record. Although a tape recording or court reporter's notes are made of the parole revocation hearing they are seldom transcribed and almost never read by the Commissioners sitting on the voting panel. Usually, the Commissioner who conducted the single member hearing is present at the meeting of the voting panel which is to consider that case. It is further the practice of the agency for that Commissioner who held the hearing to then tell the voting panel the facts as he knew them in addition to the information on the form referred to above. The alleged violator nor his counsel is allowed to appear at the voting panel's meetings. In practice, the members of the voting panel do not read the record of the hearing below nor do they read the entire file made available for their perusal. That file may contain matters not presented in evidence at the parole revocation hearing. After consideration of the file and record as they see fit and having heard the remarks of the Commissioner who conducted the hearing, and engaged in such discussion as they deem appropriate, the voting panel votes on the disposition of the case before it. It is the position of Respondent in considering parole revocations that Section 947.06, Florida Statutes, requires four (4) Commissioners voting together to restore or revoke the alleged violator's mandatory conditional release or to discharge the matter. Therefore, should a split vote occur at the voting panel meeting the Commissioner who held the hearing must then attempt to seek a majority vote from other members of the Commission on whether to restore, revoke or discharge. A typical situation would find four of the seven Commissioners sitting on the voting panel, a fifth Commissioner having conducted the single member hearing, and two remaining Commissioners, who were neither at the parole revocation hearing nor the meeting of the voting panel. If the voting panel is not unanimous in its disposition of the hearing these remaining Commissioners are then lobbied by the Commissioner who held the hearing and perhaps some or all of the Commissioners who sat on the voting panel, to cast their vote in order that there may be four votes together on whether to revoke restore, or discharge. These two members are not required by the practice of the Respondent to read the record of the parole revocation hearing or review the file of Respondent on the alleged violator and, in fact, do not generally read the full record or review the entire file. A majority member parole revocation final hearing is the same as a single member final hearing with the exceptions noted below. Instead of a single member of the Commission being present and conducting the hearing, four members of the Commission are detailed to hold the majority hearings which are held on the first Friday of each month. The four sit and listen to the testimony and evidence, taking notes and filling out a face sheet similar to that form used in a single member hearing. Immediately following the hearing the four members discuss the case and frequently a tentative vote is taken and recorded informally on the face sheet which is then included in the file and returned with the record of the hearing to Tallahassee. Cases which have been heard by four members of the Commission are placed on a voting panel docket just as are cases heard by a single member of the Commission. The voting panel members are rarely, if ever, the same four members of the Commission who attended and held the final revocation hearings, although some members of the voting panel will have sat on the hearing panel. As in a single member hearing coming before the voting panel, the panel discusses and reviews each case on the docket with the file readily available to each member of the Commission at the voting panel meeting. However, just as in the case of the single member hearing reviewed by the voting panel, the members of the voting panel are not required to read the record of the final hearing or fully review the file made available to them on the alleged violator and generally have not done so. Following a review and discussion of the docketed cases a vote is taken by the voting panel. The Respondent takes the position that, pursuant to Section 947.06, Florida Statutes, there must be four votes in agreement to restore, revoke or discharge. Should a split vote occur in the voting panel the remaining three Commissioners are approached by members of the voting panel and their vote recorded to revoke, restore or discharge. This vote is not generally done at a regularly scheduled meeting of any sort and these Commissioners are not required to and generally have not read the record nor fully reviewed the file in the matter. Once four members of the Commission are in agreement to revoke, restore, or discharge, the staff is directed to prepare a final order which order informs the violator of the charges alleged, the decision of the Commission, a brief summary of the evidence relied upon and the effective date of said action. The order further contains the signatures of the members of the Commission who took the action. It is the announced practice of Respondent that when the Commissioners consider and determine whether the alleged violator is guilty of the charges they do not consider information outside the record of the final revocation hearing, although the agency file, which is generally not introduced at the hearing, is available to the Commissioners. However, it is also the announced practice of the Respondent that after determination by the Commission that the alleged violator is guilty of the charges, but before the entry of any final order, the Commissioners will consider matters outside the record of the final revocation hearing. The Respondent does not give the alleged violator or his counsel notice of this evidence or an opportunity to respond to it. This evidence is considered by the Commission after a determination of guilt for the purpose of deciding whether to restore MCR even though the violator was guilty of the charges, to simply revoke, or to grant credit for time on MCR even though it is revoked. The testimony of the Commissioners appearing in this proceeding establish that those Commissioners voting on these revocation matters who were not present at the final hearing get to know the facts presented at the hearing Primarily by word of mouth from the Commissioner or Commissioners who were present at the final hearing. It further establishes that the Commissioners who vote on these revocation matters and who were not present at the final hearing do not generally, though in some cases they may, review all of the evidence presented at the final revocation hearing. Respondent Presently brings revocation charges against a conditional releasee who has been tried for a criminal offense while on conditional release. Further, even though the conditional releasee is found innocent by reason of a directed verdict of acquittal, or a jury verdict of not guilty, or a verdict of not guilty in a non-jury trial, Respondent charges and may revoke said conditional release on the same or similar facts and matters raised at the criminal proceeding if Respondent finds that the terms and conditions of the releasee's MCR were violated. Petitioner has attempted to prove that it is the rule of Respondent to issue final orders affecting substantial interests which do not include findings of fact and conclusions of law separately stated. The evidence presented establishes that, although there may be genuine disagreement on whether a certain final order affecting substantial interests contain proper findings of fact and conclusions of law, nevertheless, it is the policy of the agency to include such findings and conclusions in its final orders. Respondent argues that it has formally promulgated as rules Chapters 23-16 and 23-17, Florida Administrative Code, which chapters establish the practices and procedures utilized by Respondent in the granting and revocation of conditional releases. Further, Respondent points out that Rule 23-16.09, Florida Administrative Code, entitled "Hearings; Revocation of Parole" is the formally promulgated rule dealing with parole revocation hearings. The evidence establishes that the practices and procedure set forth in paragraphs 3, 4, 5, 7 and 8 above are not formally codified by the Respondent and have not been promulgated in accordance with Chapter 120, Florida Statutes. The evidence further establishes that these practiced and procedures apply, without exception, to all final parole revocation hearings and are the practices and procedures used by the Respondent to implement its statutory responsibilities under Chapter 947, Florida Statutes, and specifically Section 947.23, Florida Statutes. These practices and procedures have been in effect for several years and, although not formally codified, the Commissioners, by their testimony and responses to discovery, have stated these practices and procedures to be those of the agency applicable to all final revocation hearings.
Findings Of Fact Richard K. Black submitted his application for a Class "A" Private Investigative Agency license and a Class "C" Private Investigator license to the Department of State on November 11, 1982, together with all the fees. By letter dated November 19, 1982, the Department advised Mr. Black of the approval of the issuance of the Class "A" license subject to certain qualifications, which were not challenged by Mr. Black and are not at issue. By letter dated November 18, 1982, the Department advised Mr. Black that it had denied his application for licensure as a Class "C" Private Investigator because Mr. Black failed to meet the experience requirements of Section 493.306(4), Florida Statutes. Mr. Black made a timely request for a formal hearing pursuant to Section 120.57, Florida Statutes. The parties have stipulated that Mr. Black is qualified to hold a Class "C" Private Investigator license except for his lack of experience. Investigative activities of a private investigator include, but are not limited to, searching records, interviewing witnesses, making personal observations of physical evidence, conducting surveillances, and reporting the results and conclusions of these activities. While a student at Broward Community College during 1974 and 1975, Mr. Black served as a member of the "504 Committee," a volunteer organization whose purpose is to assist persons protected by Section 504 of the Federal Rehabilitation Act of 1973. Mr. Black's primary duties with said committee consisted of receiving complaints of alleged violations of the Rehabilitation Act concerning lack of physical access to public facilities, taking physical measurements of said facilities, performing library research to determine the applicability of the Act to said facility, and attempting to obtain compliance of the owner of the facility when a violation was found. Of these duties, the interviewing process and taking physical measurements would be qualified experience. No evidence was presented by Mr. Black regarding the specific amount of time which he devoted to these functions. While a student at Broward Community College during 1976 and 1977, Mr. Black engaged in a volunteer voter registration project for the handicapped. Mr. Black's primary duties in this regard consisted of obtaining voter registration data from public records, identifying areas in which registration of the handicapped was low, conducting house-to-house registration drives in said areas, writing letters, and arranging car pools. None of these activities qualify as experience for licensure as a private investigator. Mr. Black served as a volunteer firefighter for the North Andrews Volunteer Fire Department from 1972 to 1976. During this time, he attended a bomb and arson investigation seminar and assisted in a few arson investigations. Mr. Black did not document the specific number of investigations which he conducted or the amount of time spent in said investigations. During 1979 and 1980, during the tenure in office of Sheriff Ken Katsaris, Mr. Black served as a volunteer "special deputy" in Leon County. Mr. Black's primary duties consisted of inspecting polling places in the county to determine if proper access existed for the physically handicapped and reporting non-complying conditions to the Sheriff. While not all of Mr. Black's activities were qualified experience, he spent approximately 120 total hours on all activities in this project in 1980. For approximately three months, from August until October 1981, Mr. Black served as a nonpaid intern with the Florida Parole and Probation Services. Approximately 50 percent of this time was devoted to the qualified activities of locating probationers and parolees and assisting in investigations. Mr. Black assisted in processing service-connected or related disability claims for disabled veterans on a volunteer basis in the Leon County area. He assisted on five or six cased during the last several years. No evidence was submitted to document the specific amount of time Mr. Black devoted to the investigation of these claims. Mr. Black assisted the Alburquerque, New Mexico, police in locating the whereabouts of a fugitive from justice. This assistance was as a volunteer, and Mr. Black testified that he spent 20 to 25 hours a week for three months on this project. While attending Florida State University, Mr. Black participated in various programs to assist handicapped students. These activities are similar to the activities in which Mr. Black engaged as described in Paragraph 6 above. No evidence was presented as to the amount of time spent in qualified investigative activities during this time period. Mr. Black completed a four-day course in crisis intervention in 1981. Mr. Black obtained a Bachelor of Science degree in psychology from Florida State University. Although some of his course work in general subjects would be the same as the general course work required for a degree in criminology and some of the psychology courses which Mr. Black took would be helpful to an investigator, none of the course work which Mr. Black took is directly related to training as a private investigator. In evaluating the experience requirement for a Class "C" Private Investigator experience which is substantially identical and equal in force, power, effect and import as the experience gained in actually performing the services of a private investigator as a Class "CC" intern investigator. In evaluating the amount of time spent in investigative activities, the Department applies a standard 40-hour work week to the hours submitted by the applicant. The Department does not count volunteer experience in evaluating whether an applicant has met the time requirement unless the number of hours worked and the supervision exercise can be fully documented. Mr. Black has never been licensed as a Class "CC" intern investigator.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the application of Richard K. Black for licensure as a Class "C" Private Investigator be denied. DONE and RECOMMENDED this 20th day of May, 1983, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN, 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 20th day of May, 1983. COPIES FURNISHED: Mr. Richard K. Black 249 Oakview Drive Tallahassee, Florida 32304 Stephen Nall, Esquire Office of General Counsel Department of State The Capitol Tallahassee, Florida 32301 The Honorable George Firestone Department of State The Capitol Tallahassee, Florida 32301
The Issue What is the appropriate fine for Respondent's 17 violations of Chapter 106, Florida Statutes (1999)?
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing, the following findings of facts are made: Respondent is an elected public official, a State of Florida State Senator; violations of the Florida Elections Law during his election to that high office triggered this case. He has been a state legislator for more than a decade. The Third District Court of Appeal remanded the original case for reconsideration of the penalty after affirming Respondent's 17 violations of Chapter 106, Florida Statutes (1999). The 17 violations affirmed by the Third District Court of Appeal are: two violations of Subsection 106.07(5), Florida Statutes (1999), for certifying as correct, an incorrect campaign treasurer's report; four violations of Subsection 106.19(1)(b), Florida Statutes, for failing to report four personal loans (contributions) to his campaign; five violations of Subsection 106.143(1), Florida Statutes, for advertisements without disclaimers; five violations of Subsection 106.132(2), Florida Statutes, for advertisements that did not contain a party affiliation; one violation of Subsection 106.143(4)(a), Florida Statutes, for failure to state that the candidate approved the campaign advertisement. Respondent's current employment is that of a Florida state senator. His direct income from that employment is $29,916. He receives additional payments from the State of Florida in the form of reimbursements for travel, per diem, and other approved expenses related to his official position. Respondent enjoys a remarkable lifestyle. He owns two homes, one in Miami and the other in Tallahassee. Recently married, the Tallahassee home is jointly-owned with his wife and was purchased for $795,000. While the Miami home was owned by Respondent, individually, prior to the marriage, it is now jointly-owned. The change in title to the Miami home may be the result of refinancing subsequent to his marriage. Respondent leases a Lexus automobile; the monthly lease cost is $755. Respondent maintains a Schwab investment account to which he contributes $150 monthly. In August 2005, the account had a value of approximately $7,200. Respondent maintains an American Express credit card account, jointly with his wife, that had a balance due of $61,000 during the time of the hearings. In September 2004, Respondent loaned his legislative aide $15,000, which at the time of the hearings remained un- repaid. In May 2005, Respondent refinanced his Miami home, which he valued at $210,000 on his 2004 Form 6, for $384,300. At the time of the hearings, Respondent had funds on deposit in Sunshine State Credit Union and Washington Mutual Bank of approximately $3,800. Respondent's personal living expenses exceed his stated income. No reasonable explanation has been offered for his ability to maintain his lifestyle. Respondent's net worth will allow him to pay any fine appropriate for the 17 violations of law affirmed by the Third District Court of Appeal. Respondent had previously violated Subsection 106.57(5), Florida Statutes (1999).
Conclusions For Petitioner: Eric M. Lipman, Esquire Florida Elections Commission Collins Building, Suite 224 107 West Gaines Street Tallahassee, Florida 32399-1050 For Respondent: Mark Herron, Esquire Messer, Caparello & Self, P.A. Post Office Box 1876 Tallahassee, Florida 32302-1876 Benedict P. Kuehne, Esquire Sale & Kuehne, P.A. BankAmerica Tower, Suite 3550 100 Southeast Second Street Miami, Florida 33131-2154
Recommendation Based on the forgoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Election Commission impose a penalty of $8,750 on Respondent, Senator Alex Diaz de la Portilla. DONE AND ENTERED this 6th day of January, 2006, in Tallahassee, Leon County, Florida. S JEFF B. CLARK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 6th day of January, 2006. COPIES FURNISHED: Mark Herron, Esquire Messer, Caparello & Self, P.A. Post Office Box 1876 Tallahassee, Florida 32302-1876 Eric M. Lipman, Esquire Florida Elections Commission Collins Building, Suite 224 107 West Gaines Street Tallahassee, Florida 32399-1050 Benedict P. Kuehne, Esquire Sale & Kuehne, P.A. BankAmerica Tower, Suite 3550 100 Southeast Second Street Miami, Florida 33131-2154 Barbara M. Linthicum, Executive Director Florida Elections Commission The Collins Building, Suite 224 107 West Gaines Street Tallahassee, Florida 32399-1050 Patsy Rushing, Clerk Florida Elections Commission The Collins Building, Suite 224 107 West Gaines Street Tallahassee, Florida 32399-1050
Findings Of Fact On January 16, 1987, Department of Health and Rehabilitative Services notified J. S. By letter that it had received a report of neglect regarding him and advised him of his right to request the report be amended or expunged. J. S. did so but on February 26, 1987, the Department advised him his request for expungement had been denied. Thereafter, J. S. requested a formal hearing which was held by the undersigned on October 27, 1987. After a full, formal hearing on the merits, at which both testimony and documentary exhibits were presented by both parties, the undersigned, on December 1, 1987, entered a Recommended Order in which it was found, as a matter of fact, that while the alleged victim of the neglect was incapable of totally caring for himself, the evidence presented was insufficient to establish that the relationship between the victim and J. S. was a care-giving one or that J. S. had the responsibility to look out for the victim so as to bring him within the purview of the statute. The Department thereafter entered a Final Order consistent with the Recommended Order, amending the classification of the report to "unfounded" and expunging it from the Department records. Evidence introduced at the original formal hearing held herein established that J. S. was an employee, (resident manager) at the Royal Palm Retirement Home in Ft. Myers, Florida. He was not the owner of the facility nor was any evidence introduced to indicate he had any financial interest, other than as an employee, in the facility. Further, he was not engaging in the professional practice of a licensed profession. His relationship with the alleged victim was found to be no more than that of landlord-tenant. The Department's investigation of the alleged neglect, while not completely comprehensive, nonetheless was sufficiently thorough to meet the test of reasonableness.
The Issue In separate cases arising out of the same incidents, the Florida Commission on Ethics found probable cause that Respondent Rice violated Section 112.3143(3), F.S. by voting in her official capacity on a measure which inured to her special private gain; that she violated Section 112.313(6), F.S. by having a memorandum of voting conflict falsified; and that Respondent Thomas violated Section 112.313(6), F.S. by falsifying a memorandum of voting conflict. The issue, therefore, is whether those violations did occur, and if so, what penalty is appropriate.
Findings Of Fact The incorporated municipality of Bunnell is a small community in Flagler County Florida. Opal Rice was a Bunnell City Commissioner for eight consecutive years ending in March 1992. Becky Thomas has been Bunnell City Clerk for "six years come June 1993". She is appointed annually by a majority vote of the City Commission. Earl Rice, as "everyone in Bunnell knows", is Opal Rice's husband. Back in 1989 he owned six or eight contiguous residential lots in Bunnell. Since everything around them except the back was business, he felt they would be a "good place for a little business" and he applied to the city for rezoning. He felt the property value would be enhanced and wanted the flexibility of developing the lots either as residential or business. The rezoning issue came before the commission for first reading on March 21, 1989. Mrs. Rice and three other commissioners voted for its approval, and one commissioner dissented, stating he felt the change was spot zoning. The issue came up for second reading at the April 4, 1989 commission meeting. City Attorney Taylor was asked if the amendment to the zoning ordinance would be spot zoning, and he opined that it would not. There was also some discussion about whether Mrs. Rice should sign a conflict of interest form. She said she did not think she had a conflict because the property was not in her name and she would not get a benefit. The City Clerk said she should file the form and Mrs. Rice agreed, just to be safe. Mrs. Rice then participated in the vote and the rezoning was approved 4-1. Sometime in 1991, a citizen came to the clerk's office and asked to see some records, including those related to the rezoning. Becky Thomas was on the phone and asked her to come back to pick them up later. When Ms. Thomas pulled the records she realized that the voting conflict forms had not been filed. In more recent months, Becky Thomas has become aware that the completion and filing of voting conflict forms is not her responsibility as Clerk, but rather is the responsibility of the individual commissioners. But in 1991, she was chagrined at her oversight on Mrs. Rice's forms and immediately filled them out. Ms. Thomas then called Mrs. Rice and asked her to come sign them. The two forms, styled "Form 8B Memorandum of Voting Conflict for County, Municipal and Other Local Public Officers", are comprised of two pages, including instructions. Becky Thomas prepared the forms to cover the two occasions described above, the first and second readings. Next to the signature line is a line, "Date Filed". On that line Becky Thomas typed the dates the votes were taken: March 21, 1989 and April 4, 1989, thinking that those were the relevant dates. Opal Rice signed each form on the space next to the dates. Mrs. Rice is a retired school teacher. She and her husband receive separate retirement checks. They pay their expenses from a joint account. Mrs. Rice believed that she was required to vote. During other meetings, she recalled, she heard other commissioners being told they had to vote and to file a notice of voting conflict later. She, herself, had previously filed voting conflict forms. She was not certain when the forms were supposed to be filed, but acknowledged that the filing should be rather soon after the vote. At hearing, Mrs. Rice was not particularly familiar with the details on the forms she signed, and she admitted that she did not read the instructions. Nor did she discuss the forms with Ms. Thomas. Although the dates next to her signature were not the dates she signed, she simply thought they were the dates the votes were taken. The printed forms bear the date, 1-91; and the forms in use in 1989 are not in evidence. The printed instructions include a plain prohibition against elected officers voting on measures which inure to their special private gain. The instructions also require that a conflict must be disclosed and abstension explained prior to the vote being taken, and again after the vote by filing the form within fifteen days. Clifford Allen Taylor has been Bunnell's City Attorney, part time, for seven years. He was present for the second reading, but not the first. He has some recollection of the discussion of Commissioner Rice's possible conflict but he did not participate in the discussion. The law, as he understood it back then, was that the commissioner was required to vote and make a disclosure.
Recommendation Based on the foregoing, it is, hereby, RECOMMENDED: That the Commission on Ethics enter its final order and public report finding no violation of Section 112.313(6), F.S. by either Opal Rice or Becky Thomas; finding violations of Section 112.3143, F.S. by Opal Rice when she voted on rezoning her husband's property and neglected to file memoranda of the conflict within fifteen days; and recommending that a civil penalty be assessed in the amount of $100.00. DONE AND RECOMMENDED this 26th day of March, 1993, in Tallahassee, Leon County, Florida. MARY CLARK 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 26th day of March, 1993. COPIES FURNISHED: Craig Willis, Esquire Assistant Attorney General Department of Legal Affairs The Capitol, Suite 1502 Tallahassee, Florida 32399 Opal Rice Post Office Box 696 Bunnell, Florida 32110 Becky Thomas Post Office Box 756 Bunnell, Florida 32110 Bonnie Williams Executive Director Ethics Commission Post Office Box 6 Tallahassee, Florida 32302-0006 Phil Claypool General Counsel Ethics Commission Post Office Box 6 Tallahassee, Florida 32302-0006
