STATE OF FLORIDA 02 NOV 25 PH 3: 47 FLORIDA ELECTIONS COMMISSION STAiE OF FLORIDA CONSENT ORDER

Size: px

Start display at page:

Download "STATE OF FLORIDA 02 NOV 25 PH 3: 47 FLORIDA ELECTIONS COMMISSION STAiE OF FLORIDA CONSENT ORDER"

Jonathan McGee
5 years ago
Views:

1 In Re: Charles H. Colvin F;t.. ED STATE OF FLORIDA 02 NOV 25 PH 3: 47 FLORIDA ELECTIONS COMMISSION STAiE OF FLORIDA CONSENT ORDER ELECTIONS COMMISSION Case No.. : FEC F..O No.. : DOSFEC w The Respondent, Charles H. Colvin, who was a candidate for the Greenville City Council, and the Florida Elections Commission (Commission) agree that this Consent Order resolves all of the issues between the parties. The parties jointly stipulate to the following facts, conclusions of law, and order. FINDINGS OF FACT 1 On June 18, 2002, the staff of the Commission issued a Statement of Findings, recommending to the Commission that there was probable cause to believe that the Respondent ( I, violated Section(s), (1) & (4)(a), Florida Statutes, when Respondent published a political advertisement that did not contain a political disclaimer that stated: a) it was a paid political advertisement, b) the name of the sponsor, c) the content of the advertisement was approved by the candidate, and d) the identity of the person who paid for the advertisement 2.. On August 23, 2002, the Commission entered an Order of Probable Cause finding there was probable cause to believe that the Respondent violated Section(s) (1) & (4)(a), Florida Statutes CONCLUSIONS OF LAW 3 The Commission has jurisdiction over the parties to and subject matter of this cause, pursuant to Section , Florida Statutes 4.. The Respondent neither admits nor denies that he violated Section(s) (1) & (4)(a), Florida Statutes P_COlS (3101)

2 ORDER 5.. The Respondent and the staff of the Commission have entered into this Consent Order voluntaiily and upon advice of counsel 6. The Respondent shall bear his own attorney fees and costs that are in anyway associated with this case.. 7 The Respondent understands that before the Consent Order is final agency action the Commission at a public meeting must approve it After approval, the Consent Order is final agency action of the Commission on the violations listed in the Order of Probable Cause The Respondent voluntaii!y waives the right to any further proceedings under Chapters 106 and 120, Florida Statutes, and the right to appeal the Consent Order.. 9 The Respondent will carefolly review Chapter 106, Florida Statutes, and avoid any future violation of the chapter 10 The Respondent shall remit to the Commission a fine in the amount of $400 The fine shall be paid to the Florida Elections Commission, 107 West Gaines Street, The Collins Building, Suite 224, Tallahassee, Florida, , as a condition precedent to the Commission's execution of this Consent Order The Respondent hereby agrees and consents to the terms of this Consent Order on _? z&~f t)~,2002

3 The Commission st~ffhereby agree and consent to the terms of this Consent Order on --'l(),.l..<.~d<"'-"".l.la:..<"""'---' '---'., 2002 Phyllis mpton General Counsel Florida Elections Commission 107 West Gaines Street The Collins Building, Suite 224 Tallahassee, FL Approved by the Florida Elections Commission at its regularly scheduled meeting held on November 14 & 15, 2002 in Tampa, Florida and filed with the Clerk of the Commission on,_(),_~'-'"-'/~'.:..:.,,,,,,,,.)""--'~'-'-""'s"-----' 2002, in Tallahassee, Florida.. Copies furnished to: Phyllis Hampton, General Counsel Charles Colvin, Respondent (certified mail w OPC), Sus acmanus, Chairman Florida Elections Commission 107 West Gaines Street The Collins Building, Suite 224 Tallahassee, FL , P _COl5 (3/01)

5 ' I FLORIDA ELECTIONS COMMISSION STATEMENT OF FINDINGS Case Number: FEC Respondent: Charles H. Colvin Complainant: Kenneth D Knight On March 26, 2002, the Florida Elections Commission received a sworn complaint alleging that the Respondent violated Chapter 106, Florida Statutes. The Commission staff investigated the allegations and based on the facts and conclusions oflaw contained in the Complaint, the Report ofinvestigation, and this statement, the staff recommends that there is probable cause to charge the Respondent with: One count of violating Section I (1 ), Florida Statutes, failure of a person to mark all political advertisements as a "pd.. pol adv " or a "paid political advertisement" and to identify the sponsor; and ( One count of violating Section (4)(a), Florida Statutes, failure of a person to state on a political advertisement by a candidate that the content of the advertisement was approved by the candidate and the identity of the person who paid for the advertisement The staff also recommends that there is no pr obable cause to charge the Respondent with violating: Section , Florida Statutes, failure of a candidate to include a political disclaimer on a message placed on an information system accessible by computer by more than one person.. Summary of Facts and Conclusions of Law.. 1 Respondent was a first-time candidate for the Greenville City Council He was defeated on March 12, 2002 Respondent received 39 votes, and his opponent received Complainant is a concerned citizen. I.. Sections (1) & (4)(a), Florida Statutes (Count 1 & 2) 3.. Commission staff investigated whether Respondent violated these sections of the election laws by publishing and distributing political advertisements that were not marked as a paid political advertisement and did not identify the sponsor SofOll (3/02) 1

6 ' I 4 The Complainant submitted three items which did not contain a political disclaimer: a political flyer, a newsletter, and a copy of a web page.. The "Patriots" flyer 5 The Sliz'' x 11" one-page flyer is entitled "Patriots" and criticizes Greenville's elected council members and the Respondent's opponent, Ms.. Pritchett The flyer does not have any political disclaimer.. The flyer reads as follows: ( PATRIOTS "let the people be heard" VOTE, VOTE, VOTE TOWN OF GREENVILLE ELECTIONS Tuesday, March 12, 2002 Senior Citizens Bldg VOTE Charles H. Colvin for Council For nine ).. cars, my fellow poor Citizens of Greenville we have taken a beating from our elected council membci s \Vith the "better than thou" attitude, arc mistreated in I<nvn Council Meetings, told that we arc lying, dirty, nasty drug uses and drunks.. Are we to Jock ourselves in oui houses afraid to come out and sec what life is really like or do we board up and only associate with the cream of the crop? For nine years, my fellow poor Citizens of Greenville our taxes have gone up, water and sewer r atcs up, garbage fees up and almost one million dollars in debt. For nine years, my fellow poor Citizens of Greenville our Council Person Ms. Pritchett has been a leading force in give-a-ways on the backs of us.. She has voted for water and sewer rate inereases, loans to put us in debt, waving environmental impact fees for Greenville Hills Academy master water meters ($50,000), r enting land from Greenville Hills Academy at $60,000, waving water and sewer impact fees ($2,000) for two house at 'Third and Main Street All the time not telling us that she is a member of the Board of Directors at Greenville Hills Academy, Greenville Hills Academy, football field, out door covered basketball goals all at public expense Yet our kids play in the street! Shame on her!!!!! For nine: ):cars, my fellow poor Citizens of Greenville not one neighborhood play ground, not one sidewalk, not one new sewer for us but expansion of sewer plant 4 times, and a driving force behind "KING TIM." Get up and get out and vote!! If you don't then another hvo years of the same old give-a-ways and twenty years of obligated debt. The To,vn is close to dying, just ask State Auditor General!! VOTE! VOTE! CHARLES H. COLVIN FOR TOWN COUNCIL VOTE! VOTE! 6 In his written response to Commission staff, the Respondent stated, "I only printed the flyer [Patriots] because in another race the candidate had handed out his flyers at church. I was told I needed to do that " Soro 11 (3/02) 2

7 ( ' 7.. It is unknown who told the Respondent he needed to hand out flyers The town clerk, Cindy Hutto, told Commission staff that the Respondent did not seek her assistance before handing out the flyer The flyer, which asks people to vote for the Respondent, is a political advertisement which needed a political disclaimer The following example would have complied with the law: Paid Political Advertisement" or "PD.. POL.. ADV." Paid for by the Charles H. Colvin Campaign and Approved by Charles H. Colvin 9 Under these circumstances, I recommend that the Commission find probable cause to charge the Respondent with one count of violating Section (1), Florida Statutes, for not stating the flyer was a paid political advertisement or marking it "pd.. pol adv" I farther recommend that the Commission find probable cause to charge the Respondent with one count of violating Section (4)(a), Florida Statutes, by not stating the advertisement was approved by the Respondent and the identity of the person who paid for the advertisement The Greenville Citizen IO The newsletter the Complainant submitted is dated January 28, 2002 and states "Vol. 2, First edition" at the top of a one-page publication named the Greenville Citizen. The publication appears to be a newsletter, which contains local news.. However, the stories are primarily critical of the Town Manager, refened to as "King Timmy" and the town council. The publication also has an article about the candidates for city council supposedly written by a Sebastian Ibis. 1 In this article, it is stated,". when Colvin [Respondent] was asked what his slogan was, 'Colvin said it would be either from lyrics of Pink Floyd's The Wall, Teacher, leave us Kids alone or Vote Charlie, For money in your pocket'.." There is no disclaimer 11 The Respondent told Commission staff in an April 12, 2002 telephone interview that he writes all of the Greenville Citizen's articles However, in a written response to Commission staff two weeks later, he said that "Myself and three other people write the Greenville Citizen. " When the City Clerk was interviewed by Commission staff; she said there is no such person in Greenville as Sebastian Ibis.. She also told staff that the Greenville Citizen was the Respondent's publication, which he has written and distributed for some time, and that he has no employees. 12. In response, Respondent stated that the quotation was not a political advertisement, but a campaign slogan It appears the Respondent is correct in that the newsletter does not contain words of "express advocacy" such as "Vote for Charles H Colvin for Greenville City Council" The newsletter article, pmportedly written by Sebastian Ibis, states" 1 We note that Sebastian the Ibis is the name of the mascot of the Miami Hmricanes football team We make no determination as to whom this article should be attributed Softll l (3/02) 3

8 ( when Colvin [Respondent] was asked what his slogan was, 'Colvin said it would be either from lyrics of Pink Floyd's The Wall, Teacher, leave us Kids alone or Vote Charlie, For money in your pocket'.. " 13 Under these circumstances, I recommend that the Commission find that the newsletter does not violate Section (1) or Section (4)(a), Florida Statutes.. IL Section Florida Statutes The Greenville Citizen on line 14.. Complainant submitted three printed pages from an Internet site sponsored by the Respondent These pages appear to be an Internet version of the Greenville Citizen, however, the only article submitted by the Complainant from the on-line newsletter is the one quoted above which states," when Colvin [Respondent] was asked what his slogan was, 'Colvin said it would be either from lyrics of Pink Floyd's The Wall, Teacher, leave us Kids alone or Vote Charlie, For money in your pocket'" The Internet version of the Greenville Citizen is also void of any type of disclaimer 15. At the end of the Internet article, there is an "announcement" button, which according to the Complainant, was linked to Respondent's political ad which explained why the voter should vote for him. The Respondent admitted that he posted this "announcement" on his Internet cite and explained in his written response to Commission staff; "Town of Greenville ( assistant Town Clerk instructed all candidates to write or she would write an announcement for office that was posted on the front brick wall under glass at I own Hall. I also posted this same announcement on my Earthlink web pages. " 16 The Internet address is Respondent's web page On March 27, 2002, the Commission staff checked the web site and discovered the announcement link was no longer there The city clerk was asked by Commission staff about the "announcement requirement " She stated that each candidate was required to write an introduction to announce his or her candidacy and was to include the seat and group for which he or she was running The clerk acknowledged that she had not considered these announcements political advertisements; thus, she did not know whether they were required to contain a disclaimer 18 The clerk submitted three different announcement letters from other candidates to demonstrate that none had a disclaimer. 19 Respondent admitted that he posted his "candidacy announcement" on his web site Neither Complainant nor Respondent provided a copy of the announcement link on the Internet. However, the city clerk provided a copy of the Respondent's announcement paper, which was posted on Respondent's web site Ms Hutto stated that Respondent's "announcement" also was posted at the town hall The announcement read as follows: Sot1>1 I (3/02) 4

9 ' I ' Charles H Colvin I should have been born in Missouri, along way away instead of in Madison, then I could claim "Show me" by birthright instead of a [sic] intelligent Florida Cracker wanting to put 30 years of public service into the other realm, "Politics". Politician, doesn't it make you immediately think "Dirty" I don't want to be told the story; I want to be shown what is best I want to infuse confidence in our use of resources that we get from the people of Greenville and the respect for what we get from others not in our community.. We should all realize that someone, somewhere paid the money for us to get that grant We should be good stewards of the gifts that were given because in all our best effort, we still needed help! I, Charles (Charlie) H Colvin, announce my Candidacy for Council Person of the Town of Greenville Group 2 A vote for Chailie is a vote for money in your pocket through responsible, competent. ef!icient government. 20. It appea1s the Respondent's "announcement" contains words of "express advocacy" since it states, "!, Charles (Charlie) H Colvin, announce my Candidacy for Council Person of the Town of Greenville Group 2 A vote for Cha1lie is a vote for moneyjn_your pocket through responsible. competent. efficient government." 2 L However, while the Respondent received a copy of Chapter 106, Florida Statutes, and the Candidate Handbook on January 23, 2002, and signed the Statement of Candidate, ce1tifying that he had received, read and understood Chapter 106, Florida Statutes, he was not instructed by the city clerk to put a disclaimer on announcement of candidacy which the city cle1k 1equiied of all candidates When Commission staff spoke with the city clerk, she confirmed that she had not considered these announcements to be political adve1tisements. 22 Unde1 these circumstances, I recommend that the Commission find that while the Respondent's "announcement" did not comply with the requirements of Section , Flodda Statutes, the Respondent's action was not willfully committed as defined in Section , Florida Statutes. 2 2 Section 10637, Florida Statutes, ptovides that a person willfolly violates Chapter 106, Florida Statutes, if the person:. commits an act while knowing that, or showing reckless disregard for whether, the act is prohibited... or does not commit an act while knowing that, or showing reckless disregard for whether the act is required A person knows that an act is prohibited or required if the person is aware of the provision.. which prohibits or required the act, understands the meaning of that provision, and performs the act that is prohibited or fails to perform the act that is required.. A person shows reckless disregard for whether an act is prohibited or required under this chapter if the person wholly disregards the law without making any reasonable effort to determine whether the act would constitute a violation So!Oll (3/02) 5

10 ( IIL Conclusion 23 Respondent has been uncooperative with Commission staff dming this investigation. Commission staff spoke to Respondent only once, on April 12, 2002, when he called the Commission's business office to negate the "minor violation" offer.. Respondent also responded to the complaint with a letter received by Commission staff on April 23, All future attempts to interview Respondent were unsuccessful. Respondent told Commission staff not to call him. 24. Commission staff sent Respondent a statement of background information form to be completed by the Respondent According to the United States Postal Service, three attempts were made to deliver the letter: April 26, 2002; May 1, 2002; and May 11, 2002 The letter was returned to the Commission "unclaimed " 25. Pmsuant to Rule 2B-L003, Florida Administrative Code, this case was originally categorized as minor violation and a consent order with a fine of $650 was available Mr.. Colvin opposed the minor violation determination. He chose not to enter into a consent order in which case the Commission staff proceeded with an investigation that required approximately 32 hours to complete In summary, I recommend that the Commission find probable cause to charge the Respondent with one count of violating Section (1), Florida Statutes, for not stating the flyer was a paid political advertisement or marking it "pd pol adv " I fmther recommend that the Commission find probable cause to charge the Respondent with one count of violating Section (4)(a), Florida Statutes, by not stating the advertisement was approved by the Respondent and the identity of the person who paid for the advertisement Respectfully submitted on June 18, 2002, Copy famished to: Barbara M Linthicum, Executive Director Faye Basiri, Investigator Specialist soro11 (3/02) 6

After considering the Statement of Findings and the recommendations of counsel, the

After considering the Statement of Findings and the recommendations of counsel, the STATE OF FLORIDA f': i!,~y ~,? PH 2: 55 FLORIDA ELECTIONS COMMISSION"'.... - - In Re: HarTell Harrison Case No.: FEC 00-397 F.O. No.: DOSFEC 01-178 W : 1-..- -.I:""! l : i ;:i ;~- i ~.~ ORDER OF NO PROBABLE