02 FEB - I PH 4: 26 STATE OF FLORIDA FLORIDA ELECTIONS COMMISSI.Q~TATE Of FLORIDA FINAL ORDER

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1 Fil= ED 02 FEB - I PH 4: 26 STATE OF FLORIDA FLORIDA ELECTIONS COMMISSI.Q~TATE Of FLORIDA ELECTIONS COHMISS!ON FLORIDA ELECTIONS COMMISSION, Petitioner, vs. ALAN SCHREIBER, Respondent. FEC Case No DOAH Case No F.O. No.: DOSFEC W FINAL ORDER On November 8, 2001, this cause came on to be heard before the Florida Elections Commission (FEC or Commission). At that meeting, the Commission reviewed the Recommended Order entered by Administrative Law Judge (ALJ) Jeff B. Clark on September 19, 2001, and addressed the Exceptions to the Recommended Order filed by the Petitioner. 1 APPEARANCES For Petitioner: Eric Lipman, Esquire Florida Elections Commission The Capitol, Room 2002 Tallahassee, FL For Respondent: Mark Herron, Esquire Mark Herron, P.A. Post Office Box 1701 Tallahassee, FL The FEC counsel. has reviewed the entire record and heard arguments of

2 RULINGS ON THE EXCEPTIONS 1. The Commission agrees with Petitioner's Exception #1. The ALJ erroneous ruled (COL ~67-68) that the burden of proof in Commission cases, brought under the willful standard in Chapter 106, Florida Statutes, requires clear and convincing evidence. As the Commission has ruled on numerous occasions, administrative enforcement actions involving Chapter 106, Florida Statutes, are "remedialn in nature and thus are subject to the lesser preponderance of the evidence standard. See FEC v. Harris, Case No.: ; FEC v. Morroni, Case No.: FEC , FEC v. Boczar, Case No.: FEC , Division of Elections v. Diaz de la Portilla, Case No.: FEC The Commission takes this position because the legislative purpose behind the regulations contained in Chapter 106, Florida Statutes, is to preserve the electoral system from corruption and the appearance of corruption, as opposed to merely punishing wrongdoers. Moreover, since the Commission is the agency with substant1ve jurisdiction over proceedings to enforce Chapter 106, Florida Statutes, it is clear, unless and until judicially determined otherwise, that the Division of Administrative Hearings (DOAH) must defer to the Commission's position on this question of law. See Purvis v. Marion County School Bd., 766 So.2d 492, 498 (Fla. 5th DCA 2000). 2

3 2. The Commission agrees with Petitioner's Exception #2. The ALJ's Conclusion of Law (COL,56) that Respondent's campaign reports complied with the requirements of Section (4) (a)7., Florida Statues, is clearly erroneous. The statute provides that all reports of reimbursed expenses must contain "the amount, date and purpose of such expenditure [for which the reimbursement is claimed]." In this case, the ALJ found that the Respondent, on his campaign report, lumped together expenditures for more than one purpose in the same reimbursement making it "impossible to tell the actual expense for which reimbursement is made" (FOF,7). The Respondent's report did not delineation the dates, amounts and purposes of the individual expenditures made by Respondent for which he was reimbursed by his campaign. Therefore, the method of reporting used by the Respondent did not comply with the requirements of Section (4) (a) 7., Florida Statues. 3. The Commission also agrees with Petitioner's Exception #3. The-C-ommission rejects the ALJ's Conclusion of Law (COL,53) that says there is an "apparent conflict" between Sections ( 3) and ( 4) (a) 7., Florida Statutes, requiring that the two sections be read in pari materia (COL,57-58). The Commission finds that the sections are independent of each other and should be read in that manner. While a candidate, under certain circumstances, may be reimbursed by a check written from 3

4 his campaign, Section (4) (a)7., Florida Statutes, requires that he report more than his own name and the date and amount of the reimbursement check on his campaign report. As discussed above, the section requires that the candidate individually list each expenditure and the amount, date, and purpose of each expenditure for which he was reimbursed. The Commission also rejects the ALJ's conclusion in paragraph 58 to the extent that it implies that a candidate can use a credit card, personal or otherwise, to incur campaign expenses and then be reimbursed by his campaign. A candidate can only use a credit card as provided in Section , Florida Statutes. In addition, the Commission neither accepts nor rejects the ALJ's conclusion in paragraph 56 regarding the applicability of Division of Elections opinions. However, the Commission does wish to point out that Section (13), Florida Statutes, provides that the Commission "must, in all its deliberations and decisions, adhere to statutory law and advisory opinions l)'"f the di vision." 4. The Commission rejects Petitioner's Exceptions #4 and #5. The Commission found in FEC v Katherine Harris, FEC Case No , DOAH Case No , F.O. No. DOSFEC , that when a case turns upon the "knowing" prong of "willfulness" that the "reliance defense" is available under the appropriate circumstances. Section , Florida Statutes, requires that a 4

5 candidate acts are "knowing" and therefore "willful" when the candidate "... is aware of the provision of [Chapter 106] which prohibits or requires the act, understands the meaning of that provision, and performs the act that is prohibited or fails to perform the act that is required." Although a candidate signs a Statement of Candidate form indicating he was aware of and understood the requirements of Chapter 106, he should be able to rebut the presumption of willful conduct if he, in good faith, sought and followed the advice of a qualified attorney. Thus, the Commission recognizes that a candidate may rebut the presumption of "willful" conduct, premised under the "knowing" prong of the definition, if he or she relied upon advice of a qualified attorney under the following circumstances: (l)the Respondent sought the advice of an attorney before he acted. (2)The Respondent acted in good faith when he or she sought the advice of the attorney. (3)The Respondent made a complete and accurate statement of all material facts to the attorney before he renderea his advice. (4) The attorney was qualified to render advice to the Respondent on election law issues. (S)The Respondent followed the advice of the attorney. In the instant case, the facts found by the ALJ meet all of the aforementioned conditions. The ALJ found that the Respondent's actions were legitimately based upon advice given him by counsel and, under the facts of this case, the FEC finds no reason to disturb this 5

6 conclusion. The FEC, however, does wish to point out that the defense recognized in Harris presupposed that the legal advice upon which a respondent grounds his or her defense must be advice gained from an attorney "qualified" to render advice in election law issues. While the FEC has concerns about the qualifications of at least one of the attorneys consulted by Respondent, as knowledgeable in election law, especially in light of that attorney's candid statements (FOF ~14), the Commission cannot state that the ALJ abused his discretion in determining that the attorney was sufficiently knowledgeable in election law issues to be an attorney upon whose advice Respondent could have reasonably relied. The FEC does wish to make it clear, however, that the defense recognized in Harris presupposes that the attorney whose advice forms the basis for the candidate's reliance has been consulted in a professional capacity and not merely in a social or other casual context. 2 2 Candidates and others should be aware that consulting the Division of Elections and receiving an opinion as per s , Fla. Stat., provides a much more certain basis for obviating a charge of violating Chapter 106 than having to meet the onerous burden of showing the type of acceptable reliance discussed in Harris. 6

7 CONCLUSION AND DISPOSITION The FEC accepts the ALJ's Proposed Findings of Fact, in toto, and, except as modified herein, accepts his Recommended Conclusions of Law and Disposition. Therefore, it is ORDERED and ADJUDGED that Respondent did not violate Section , Florida Statutes, and that charge against him is hereby DISMISSED. DONE and ORDERED this day of February SUSAN MACMANUS, Chairman Florida Elections Commission NOTICE OF RIGHT TO APPEAL Pursuant to Section , Florida Statutes, the Respondent may appeal the Commission's Final Order to the appropriate district court of appeal by filing a notice of appeal both with the Clerk of the Florida Elections Commission and the Clerk of the district court of appeal. The notice must be filed within 30 days of the date this Final Order was filed and must be accompanied by the approprica...t.~ filing fee. Copies furnished to: Eric Lipman, Assistant General Counsel Alan Schreiber, Respondent Mark Herron, Attorney for Respondent Helen Ferris, Complainant Supervisor of Elections, Broward County, Filing Officer 7

8 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a copy of the foregoing has been furnished by U.S. Mail to counsel for Respondent, Mark Herron, Esquire, Mark Herron, P.A., Post Office Box 1701, Tallahassee, FL , Barbara M. Linthicum, Executive Director, and Eric Lipman, Assistant General Counsel, 107 W. Gaines Street, Collins JS+ Building, Suite 224, Tallahassee, Florida this day of February, Patsy Cammi 8

STATE OF FLORIDA FLORIDA ELECTIONS COMMISSION ST.:\i[ OI' FLCR:O.I\ FINAL ORDER. On May 22 and August 13, 2003, this cause came on to be

$STATE OF FLORIDA FLORIDA ELECTIONS COMMISSION ST.:\i[ OI' FLCR:O.I\ FINAL ORDER. On May 22 and August 13, 2003, this cause came on to be$ r ----\ 03 AUG 22 AM II: 57 STATE OF FLORIDA FLORIDA ELECTIONS COMMISSION ST.:\i[ OI' FLCR:O.I\ ELECTilli:S COHillSSIOfl FLORIDA ELECTIONS COMMISSION, 1 vs. Petitioner, MARY McCARTY AND THE COMMITTEE TO