STATE OF FLORIDA FLORIDA ELECTIONS COMMISSION~L'G - 7 ;~./1 CONSENT ORDER. The Respondent, The Barrier Island Coalition; William G. Glynn, Chairman, &

Transcription

1 ;,.;1 STATE OF FLORIDA FLORIDA ELECTIONS COMMISSION~L'G - 7 ;~./1 8: 5 J In Re: The Barrier Island Coalition; William G. Glynn, Chairman, & William C. Johnson, Treasurer Case No.: FEC F.O. No.: DOSFEC w CONSENT ORDER The Respondent, The Barrier Island Coalition; William G. Glynn, Chairman, & William C. Johnson, Treasurer, 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 oflaw, and order: ( FINDINGS OF FACT 1. On May 16, 2001, the staff of the Commission issued a Statement of Findings, recommending to the Commission that there was probable cause to believe that the Respondent violated Section(s) (1), Florida Statutes, on one occasion; (2), Florida Statutes, on four occasions; and (1)(a), Florida Statutes, on three occasions. 2. The facts set forth in the Statement of Findings, which is attached hereto and incorporated by reference, are deemed admitted as true. 3. On May 22, 2001, the Commission entered an Order of Probable Cause finding there was probable cause to believe that the Respondent violated Section(s) 16.08(1), Florida Statutes, on one occasion; (2), Florida Statutes, on four sions; and (l)(a), Florida Statutes, on three occasions.

2 _.., On May 24, 2001, the Respondent was served by certified mail with a copy of the Order of Probable Cause. 5. The Respondent requested a hearing before the Commission within 30 days of receiving the Order of Probable Cause. CONCLUSIONS OF LAW 6. The Commission has jurisdiction over the parties to and subject matter of this cause, pursuant to Section , Florida Statutes. 7. The Commission staff and the Respondent stipulate to the facts set forth in the Statement of Findinps and to the ability of the Commission to impose a civil penalty in - accordance with Section , Florida Statutes. ORDER 8. The Respondent and the staff of the Commission have entered into this Consent Order voluntarily and upon advice of counsel. 9. The Respondent and the staff of the Commission agree that this Consent Order and the terms contained herein shall not constitute an admission against interest or acknowledgement of guilt as to any criminal charge that might arise from the allegations that form the basis of the complaint filed on October 20, 2000, against Respondent and this Consent Order. 10. The Respondent shall bear his own attorney fees and costs that are in anyway associated with this case. 11. The Respondent understands that before the Consent Order is final agency action, the Commission must approve it at a public meeting. 12. After it is approved by the Commission, this Consent Order constitutes

3 final agency action on the violations charged in the Order of Probable Cause The Respondent voluntarily waives the right to any further proceedings under Chapters 106 and 120, Florida Statutes, and the right to appeal the Consent Order. 14. This Consent Order is enforceable under Sections and , Florida Statutes. The Respondent expressly waives any venue privileges and agrees that if enforcement of this Consent Order is necessary, venue shall be in Leon County, Florida. 15. The Respondent shall remit to the Commission a civil penalty in the amount of $2500 for violating Section(s) (1), Florida Statutes, on one occasion; (2), Florida Statutes," on four occasions; and (1)(a), Florida Statutes, on three occasions. The civil penalty shall be paid to the Florida Elections Commission, Room 2002, The Capitol, 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 _c:::y_o_-../--"---'l"-'""'-'--"'-= ' ommission staff hereby agrees and consents to the terms of this Consent

4 ( Florida Elections Commission Room 2002, The Capitol Tallahassee, FL Approved by the Florida Elections Commission at its regularly scheduled meeting held on July 25 ~ at Tampa, Florida and filed with the Clerk of the Commission on August 7, 2001, in Tallahassee, Florida. SJzM~:::~ Florida Elections Commission Room 2002, The Capitol Tallahassee, FL Copies furnished to: Phyllis Hampton, General Counsel The Barrier Island Coalition; William G. Glynn, Chairman, &'William C. Johnson, Treasurer, Respondent Mark Herron, Attorney for Respondent Frank L. Zorc, Complainant Vero Beach City Clerk, Filing Officer Attachment: Statement of Findings Faa020 (5/00)

5 MARK HERRON, P.A. 01-1s-9s Trust Account 216 S Monroe St, Suite 200 A Tallahassee, Fl /631 SuNTRUST SunTrust Bank, Tallahassee, N,A. Tallahassee, FL.

6 ( I: l 1? (<I v Mi\'!?? p:ijj 1 1 ihl ~.r :' STATE OF FLORIDA ~T'.T;:"' i~-- :,, L~:;C;_\ FLORIDA ELECTIONS COMMISSIO~i!if,::~. c ;; ;i:;:_;'.;_: In Re: The Barrier Island Coalition, William Glynn, Chairman and William C. Johnson, Treasurer Case No.: FEC ORDER OF PROBABLE CAUSE THIS CAUSE came on to be heard before the Florida Elections Commission at its meeting held on May 9 and 10, 2001, in Orlando, Florida. Based on the facts set forth in the Complaint, Report of Investigation, and Statement of Findings, that are incorporated as a part of this order, the Commission finds that there is: Probable cause to believe that the Respondent violated Section (1), Florida Statutes, prohibiting a person from making contributions to a candidate in excess of $500 for each election on. one occas10n; Probable cause to believe that the Respondent violated Section (2), Florida Statutes, failure of a person to mark the political advertisement of a candidate running for partisan office with the candidate's political party affiliation or to indicate that he is running with no party affiliation on four occasions; and Probable cause to believe that the Respondent violated Section (1 )(a), Florida Statutes, prohibiting a person or organization from accepting a contribution in excess of $500 for each election on three separate occasions. DONE AND ENTERED by the Florida Elections Commission and filed with the Clerk of the Commission on May 22, 2001, in Tallahassee, Florida. P_COOI (2/01)

7 SUSfil1A MacManus, Chairman Florida Elections Commission Room 2002, The Capitol Tallahassee, FL NOTICE OF RIGHT TO A HEARING As the Respondent, you are entitled to a hearing before the Florida Elections Commission or the Division of Administrative Hearings on those violations of the Florida Statutes on which the Commission has found probable cause. The hearing is held according to Chapter 120, Florida Statutes, and Chapters 2B-l and , Florida Administrative Code. To obtain a hearing, you must send a written petition that complies with the rules to the Commission Clerk requesting a hearing. The address of the Cdmmission Clerk is Room 2002, The Capitol, Tallahassee, Florida The Clerk must receive your petition within 30 days of the date that you received this order. In the petition, you may request either a formal or an informal hearing before the Commission or a formal hearing before the Division of Administrative Hearings. If you request a formal hearing, the Commission reserves the right to refer the case to the Division of Administrative Hearings, To determine whether to request a forrilal or an informal hearing, review Chapter , Florida Administrative Code. No mediation is available. To request an informal hearing, you must include in the petitiqn requesting the hearing all the information listed in Rule (2), Florida Administrative Code. At the informal hearing, you will have the right to make written or oral arguments to the Commission concerning the legal issues related to the violation and the potential fine. Live witness testimony is unnecessary at an informal hearing. To request a formal hearing, you must include in the petition requesting the hearing all the information listed in Rule (2), Florida Administrative Code, including a statement of all issues of material fact in the Stat~ment of Findings that you dispute. At the formal hearing, you will have the right to present evidence relevant to the violation(s) listed in this order, to cross-examine opposing witnesses, to impeach any witness, and to rebut the evidence presented against you. If you do not timely file a written petition requesting a hearing, you will have waived your right to both a formal and an informal hearing. This case will be scheduled for a Commission meeting, and the Commission will consider this document, the Statement of Findings, and the Report of Investigation and issue a final order that may include a substantial fine. Copies furnished to: P roo1 f7/01)

8 Phyllis Hampton, General Counsel John R. Capra, Attorney for Respondent (certified mail) Frank Zorc, Complainant Department of State, Division of Elections, Filing Officer -- Attachment: Statement of Findings

9 FLORIDA ELECTIONS COMMISSION AMENDED STATEMENT OF FINDINGS Case Number: FEC Respondent: The Barrier Island Coalition, William Glynn, Chairman, and William C. Johnson, Treasurer Complainant: Frank L. Zorc On October 20, 2000, 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 of law contained in the Complaint, the Report of Investigation, and this statement, the staff recommends that the Commission find that there is: Pr-obable cause to believe that the Respondent violated Section (1), Florida Statutes, prohibiting a person from making contributio'ns to a candidate in excess of $500 for each election on one occasion; Probable cause to believe that the Respondent violated Section (2), Florida Statutes, failure of a person to mark the political advertisement of a candidate running for partisan office with the candidate's political party affiliation or to indicate that he is running with no party affiliation on four occasions; and Probable cause to believe that the Respondent' violated Section (1)(a), Florida Statutes, prohibiting a person or organization from accepting a contribution in excess of $500 for each election on three separate occasions. Summary of Facts and Conclusions of Law 1. Respondent in this case includes a political committee, the committee's chairman, and the committee's treasurer. Because Respondent committee planned to endorse candidates for both state and local elections, its statement of organization was filed with both the Division of Elections and the Indian River County Supervisor of Elections office. The statement of organization was filed on July 27, Complainant was a candidate for Indian River County Commission. He was defeated on October 3, Complainant submitted copies of Barrier Island Coalition's campaign treasurer's reports that show various contributions to the coalition and expenditures by 1 An amended statement of organization was filed with both offices on August 4, 2000 that included the word "none" in two spaces that were previously left blank

10 the coalition. Complainant also included copies of two political advertisements that were.paid for by the coalition that endorsed his opponent. Complainant advised that he was defeated in his bid for county commission by 70 votes. He attributes his defeat to the advertisements that were published by Respondent opposing his candidacy and supporting his opponent Commission staff investigated whether the Respondent violated Section (1), Florida Statutes, when Respondent made contributions exceeding $ to candidates. 4. Complainant submitted a copy of two political advertisements. Both ads endorsed the same two candidates for public office. Complainant also submitted copies of Respondent's treasurer's reports that disclose two expenditures exceeding $4100 on September 26, 2000 for postage and printing of the advertisements. 5. The first advertisement was distributed by mail prior to the primary runoff election on October 3, The second advertisement was included as an insert in the Vero Beach Press Journal in the four daily editions of the paper from September 30, 2000 through October 3, 2000:.. Both advertisements contain a disclaimer identifying Respondent as the sponsor of the advertis~ment, and a statement that both candidates have approved the advertisement. 6. Respondent's attorney, John Capra, submitted a written response on behalf of Respondent, dated December 5, He stated that ''the facts do not indicate that the Barrier Island Coalition at any time gave in excess of $ to any candidate for election or to any other political committee supporting or opposing one or more candidates." Respondent's attorney advised that prior to filing Respondent's statement of organization, Respondent's President met with attorney Bruce Barkett to discuss forming an organizatio;n to endorse candidates for public office. Mr. Barkett issued an opinion letter advising the requirements of Section , Florida Statutes, concerning an organization intending to support or oppose one or more candidates. The letter does not discuss contribution limits. 7. Respondent's attorney was interviewed by telephone on February 21, Mr. Capra stated that Respondent relied on the advice given to them in Mr. Barkett's letter. When asked why Respondent published advertisements that cost in excess of $500 per candidate endorsed in the ads, he stated that Respondent and its chairman understood that they could endorse candidates as a political committee. He stated that Respondent did not know that they were restricted to a $500 contribution limit as a political committee. He stated that members of the North Beach Civic Association of Indian River County, Inc., and its President, Bill Glynn, met with attorney Bruce Barkett to discuss forming an organization to support candidates. The organization that was later formed was the Barrier Island Coalition. Mr. Glynn later became the chairman of the Barrier Island Coalition. 8. Complainant filed related complaints against the North Beach Civic Association of Indian River County, Inc.; Save Our Shores, Inc.; and the Barrier Island Coalition. The four organizations, their officers, and dates of formation are as follows: 2

11 ORGANIZATION S. BEACH PROPERTY SAVE OUR SHORES, N. BEACH CIVIC BARRIER ISLAi'ID OWNER'S ASS'N INC. INC. ASS'N OF INDIAN COALITI~ RIVER CO., INC. FEC CASE NUMBER FEC FEC FEC FEC PRES./CHR. JAMES DODDS RALPH SEXTON WILLIAM GLYNN WILLIAM GLYNN TREASURER DAVID WORKUM JEANRADLET KAREN AMBRUN WILLIAM JOHNSON DATE FORMED AMJ'. OF CONT. TO $1,500 $5,000 $1,500 BARRIER ISLAND COALITION DATE OF CONT Respondent's attorney, John Capra, enclosed a copy of the letter Mr. Barkett wrote after the meeting advising the group of the requirements of Section , Florida Statutes, as it relates to organizations endorsing or opposing the candidacy of one or more candidates. "' 10. The letter written by Mr. Barkett is addressed to Bill Glynn, President of the North Beach Civic Association of Indian River County, Inc., and to Ralph Sexton, President of Save Our Shores, Inc. The letter is dated May 5, 2000 and states that Mr. Barkett was asked whether Save Our Shores, Inc.; the North Beach Civic Association of Indian River County, Inc.; and the South Beach Property Owner's Association could, "as a group endorse a slate of officers for political office in Indian River County." 11. The letter advises Mr. Glynn and Mr. Sexton: Section , Florida Statutes, requires any group, club, association, or other organization which intends to endorse or oppose the candidacy of one or more candidates for political office, to file a statement before publishing, issuing, broadcasting, or otherwise distributing such advertisement. The contents of the statement are enumerated in the Statute, a copy of which is enclosed for your review. In addition, Section , a copy of which is also enclosed for your review, lists certain requirements for all political advertisements circulated prior to election. For example, they must be marked "paid political advertisement"; they must identity the person or organizations sponsoring the advertisement; and they must state how the advertisement was funded. Section goes on to describe numerous requirements for political advertisements. Therefore, the short answer to your question is that the group you described can, under the law, endorse or oppose the candidacy of one or more candidates provided the requirements statement is 3

12 filed with the Supervisor of Elections prior to the endorsement or advertisement, and the content of the endorsement or advertisement and the manner in which it is distributed is consistent with Chapter 106, Flmida Statutes. Coordination with the Supervisor of Elections is mandatory. 12. Attorney Bruce Barkett was interviewed by telephone on February 19, Mr. Barkett stated that he was approached by Ralph Sexton and William Glynn approximately two weeks prior to the date of the letter. He said that the two gentlemen were asking if the three not for profit corporations could endorse a slate of candidates. He stated that the issue of contributions or contribution limits was never raised by any member of the group. Mr. Barkett also stated that he did not advise them to speak with the filing officer or the Division of Elections; however, he stated that he did verify the information in his letter with an employee of the supervisor of elections' office. 13. Respondent's chairman returned a sworn affidavit questionnaire, dated February 6, Respondent's chairman stated that Respondent published a total of three political advertisements. He submitted a-copy of a third advertisement that was published by Respondent as an insert in the Vero B,each Press Journal from September 2, 2000 through September 5, Respondent's attorney later provided a fourth political advertisement published by the committee. 14. The following table summarizes the four political advertisements: FORM OF HOW DATE OF #OF DISCLAIMER TOTAL ADVERTISMENT DISTRIBUTED DISTRIBUTION CAND. DEFECTS COST OF AD 3 PAGE LETTER BY MAIL AUGUST 29, NO PARTY $3, AFFILIATION FOR CANDIDATES PALM CARDS BY NEWPAPER SEPT. 2,.3, 4, & 5, NO PARTY $ AFFILIATION FOR CANDIDATES FLIER BY NEWPAPER SEPT. 30-0CT. 3, NO PARTY $ AFFILIATION FOR CANDIDATES FLIER BY MAIL PRIORT02ND 2 NO PARTY $4, PRIMARY, 2000 AFFILIATION FOR CANDIDATES 15. The first ad was distributed by mail on August 29, 2000 prior to the September 5, 2000 primary election. Respondent's attorney provided copies of four checks totaling $3, that Respondent issued. to pay for the ad. The ad consisted of a three-page letter that solicits new members for Respondent and endorses six candidates. Section (3), Flmida Statutes, provides that any expenditure by a political committee for obtaining time, space or services in or by any communications medium for the purpose of jointly endorsing three or more candidates shall not be considered a contribution or expenditure to, or on behalf of any such candidate. The advertisement contains a disclaimer but fails to mention the candidates' party affiliation. 16. The second ad was an insert in the newspaper, covering five precincts, on 4

13 ( September 2, 3, 4, and 5, Respondent's attorney provided a copy of _check numb~.!) 005 to the Vero Beach Press Journal for $ for the ad. The ad was printed as palm cards, with two cards printed on one 8" x 11" sheet. The ad endorses six candidates for state legislature, county sheriff, and county commission and contains a disclaimer but fails to mention the candidates' party affiliation. 17. The third ad by Respondent was also an insert in the newspaper, covering five precincts, on September 30, 2000 through October 3, Respondent's attorney provided a copy of check number 1010 to the Vero Beach Press Journal for $ for the ad. Given the cost of the ad, and the fact that it endorsed two candidates, the total cost per candidate would be $ each. The advertisement endorses two candidates: one candidate for county commission and one candidate for state legislature. The ad contains a disclaimer but fails to mention the candidates' party affiliation. Review of the campaign treasurer's reports for each candidate reveals that neither candidate reported any contributions or in-kind contributions from Respondent during this reporting period. 18. The fourth ad was distributed by mail prior to the October 3, 2000 primary runoff election. The advertisement endorsed the same two candidates that were endorsed in the third advertisement. Again, the, ad contains a disclaimer but fails to mention the candidates' party affiliation. Respondent's attorney provided copies of three checks, totaling $4, that were issued by Respondent to pay for the publication of this ad. Given the cost of the ad and the fact that it endorsed two candidates, the total cost per candidate would be $2, each. Review of the campaign treasurer's reports for each candidate reveals that neither candidate reported any contributions or in-kind contributions from Respondent during this reporting period. 19. Under these circumstances, it appears that the first two ads, described in Paragraphs 15 and 16, do not violate Section (1), Florida Statutes, since the ads supported six candidates. Section (3), Florida Statutes, provides that any expenditure by a political committee for obtaining time, space or services in or by any communications medium for the purpose of jointly endorsing three or more candidates shall not be considered a contribution or expenditure to, or on behalf of any such candidate. The third ad described in Paragraph 17 was for two candidates and cost $637.43, or $ per candidate. This ad did not violate Section (1 ), Florida Statutes, since the ad did not cost more than $500 per candidate. 20. However, the fourth ad, described in Paragraph 18, did not comply with Section (1), Florida Statutes, since the ad cost $4, or $2, per candidate. While the Respondent is a new political committee and its organizers sought legal advice from attorney Bruce Barkett prior to the forming of the political committee, it does not appear that the organizers asked the attorney whether there was a limit on the amount of money that could be spent on a political advertisement for candidates by a political committee. Under these circumstances, it appears that the Respondent's non-compliance is willful, 2 and I recommend 2 Section , Florida Statutes, provides that a person willfully violates Chapter 106, Flmida 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 cr\l:'f\f\1 tl')/f'lf\\ 5

14 ( that the Commission find probable cause that a violation of Section 106.0~(1), Floridl:l.tatutes, occurred. 21. Commission staff investigated whether the four ads sponsored by the Respondent violated Section (2), Florida Statutes, by failure to include in the political advertisement the candidates' political party affiliations. All six candidates that were endorsed by Respondent were Republican candidates. 22. Respondent's attorney, John Capra, stated that the Respondent's political advertisements did not include the party affiliation of six candidates. He advised that all carididates were running as Republican candidates in Republican primary elections. He stated that the purpose of Section (2), Florida Statutes, is to avoid confusion on behalf of the voter; however, when all of the candidates on the ballot are of the same party, there can be no confusion. Mr. Capra added, "[T]his action was taken inadvertently and without willful intent." However, in the letter written by Attorney Barkett to Mr. Glynn and Mr. Sexton, Mr. Barkett specifically told Mr. Glynn and Mr. Sexton that the requirements of Section , Florida Statutes, must be complied with and the attorney enclosed a copy of Section , Florida Statutes. ~, 23. Under these circumstances, it appears that the noncompliance with Section , Florida Statutes, was willful. While the committee is a new committee, it was specifically advised by its attorney that the requirements of Section , Florida Statutes, must be complied with and was given a copy of Chapter , Florida Statutes, by the attorney. 24. Commission staff investigated whether the Respondent violated Section (1)(a), Florida Statutes, when it accepted contributions in excess of $5_00 on three occasions from the three not for profit organizations. Coq:iplainant provided copies of Respondent's campaign treasurer's reports that disclose the following contributions: Date Contributor Amount July 15, 2000 Save Our Shores, Inc. $5, July 27, 2000 North Beach Civic Association of $1,500 Indian River County, Inc. September 6, 2000 South Beach Property Owner's $1,500 Association, Inc. 26. Respondent's attorney, John Capra, stated in his written response:... The facts indicate that contributions in excess of $500 were 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... SOFOOI (12100) 6

15 accepted. This alleged violation of the election laws, as well as every other provision being investigated by your office, was done mistakenly, inadvertently and without willful intent.... The Coalition, as well as its President and Treasurer, at all times acted on the advice of counsel, which legal advise was incomplete and allegedly inaccurate. 27. William Glynn, the Barrier Island Coalition's chairman, returned a sworn affidavit questionnaire dated February 6, When asked ifthe committee returned any of the contributions that were accepted from the North Beach Civic Association of Indian River County, Inc.; the South Beach Property Owner's Association, Inc.; or Save Our Shores, Inc., he stated that they had not. He said that the money that was contributed by the groups had already been spent. When asked when he first became aware of the contribution limits of a political committee, he stated that he was contacted by the local media on October 4 or 5, 2000, and advised that the contributions had exceeded the $500 limit. 28. While the Respondent did not comply with the requirements of Section (1)(a), Florida Statutes, it does not appear that the non-compliance was willful for the same reasons expressed in paragraph 20. Respectfully submitted, Copy furnished to: Barbara M. Linthicum, Executive Director Travis Wade, Investigator Specialist Enclosure: Committee Handbook SOFOO! (12/00) 7