STATE OF FLORIDA FLORIDA ELECTIONS COMMISSION AMENDED FINAL ORDER APPEARANCES

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1 STATE OF FLORIDA FLORIDA ELECTIONS COMMISSION Division of Elections, Petitioner, v BROOM Political Committee, Respondent Case No.. : FEC F.O. No.: DOSFEC AMENDED FINAL ORDER THIS CAUSE came on to be heard at a formal hearing held before the Florida Elections Commission on April 5, 1996 in Tampa, Florida.. APPEARANCES For Division: For Respondent: Lynne A Quimby-Pennock Assistant General Counsel Department of State Division of Elections Room 2002 Tallahassee, FL Adrien Waller Helm, Esq th A venue South St Petersburg, Florida STATEMENT OF THE ISSUE Whether the Respondent violated Section (1), Florida Statutes, by failing to place the required disclaimer on political advertisements produced and sponsored by them so as to subject them to penalties for violation of Chapter 106, Florida Statutes, as provided in Section F (1), Florida Statutes.. F AAOOI (12196)

2 / PRELIMINARY STATEMENT On March 15, 1995, the Division of Elections received a sworn complaint alleging violations of Floridas election laws The Division conducted an investigation to dete1mine whether the facts alleged in the complaint constituted prnbable cause to believe that the Respondent violated the following section of Chapter 106, Florida Statutes: Section (1), Florida Statutes, failure of a person to maik all political adve1tisements as a "pd. pol adv.. " or a "paid political advertisement" and to identify the sponsor.. On Januaiy 26, 1996, David A Rancourt Director of the Division of Elections, signed a Statement of Findings dete1mining that there was probable cause to believe that Chapter 106, Florida Statutes, was violated. On Februaiy 9, 1996, the F101ida Elections Commission entered an Order of Probable Cause finding that there was probable cause to believe that the Respondent I violated Section (1), Florida Statutes.. The Respondent timely requested a heaiing and was noticed to appeai before the Commission on April 5, 1996 Prior to the heaiing, the Division sought and received leave to dismiss Edwaid G. Helm, Treasurer of BROOM Political Committee, from the case Also p1ior to the heaiing, BROOM raised a Motion to Dismiss based upon the Divisions alleged failure to respond to Respondents public record request received on Maich 19, This motion is hereby DENIED in light of the representation made by the Division at the heaiing that all material responsive to the request was forwaided to BROOM and was acknowledged as having been received by BROOM through its representative.. BROOM s other grounds for seeking dismissal of the Order of Probable Cause dated Februaiy 9, 1996 aie found to be without merit and ai e hereby DENIED. F \ FAAOOI (02/96)

3 / I At the formal hearing, the Division presented the oral testimony of Babette Husick, Jane Brown, Winifred Foster, and David Flagg. The Division and BROOM offered 10 jointly stipulated exhibits that were admitted into evidence. BROOM presented the testimony of Edward Helm and Timothy Bergmann.. At the close of the hearing both parties made closing arguments and declined their right to submit proposed final orders.. This case was appealed to the Second District Court of Appeals, Case No The Second District reversed the final order as it applies to Pat Fulton and remanded the order to the Commission with instructions to strike from the final order the reference to Ms. Fulton as being responsible for the violation or paying the penalty. This Amended Final Order complies with the order of the court. ( FINDINGS OF FACT L The Commission is charged with enforcing Section and Chapter 106, Florida Statutes, the campaign financing law. 2.. BROOM is a political committee formed in 1993 to assist the voters of St Petersburg, Florida, to understand the charter amendment providing for a "strong mayor" that was voted on and adopted in the 1993 elections. Patricia L Fulton has been the Chair or Co- Chair of the Committee since the Committee was formed Exhibit In 1992, a political committee named St Pete V.OLCE. (VOICE) circulated a petition to force the St Petersburg city council to put on the ballot an issue that would change the citys form of government from a city manager to a strong mayor.. Approximately 15,000 people. signed the petition. FAAOOI (02196)

4 4 Prior to the 1995 city elections, BROOM mailed two political advertisements to some of the 15,000 individuals who signed VOICEs petition in 1993 BROOM took the position that by signing the petition all 15,000 individuals became members of BROOM VOICE circulated the "suong mayor" petition prior to BROOMs creation.. No evidence was inuoduced that any of the 15,000 individuals who signed the petition had any interest in becoming a "member" of BROOM.. 5. Both advertisements circulated by BROOM were one page documents that began with the heading "BROOM" in bold letters and were addressed to "Dear Neighbor.." In the same language, both advertisements recounted BROOMs efforts to change St Petersburgs government and the need to continue that work The first advertisement solicited support for candidates in the primary election for the St Petersburg City Council who supported BROOMs position on the suong mayor issue.. The second advertisement solicited suppoxt for like-minded candidates in the general election. Both advertisements were signed by Tim Bergmann as Cochair and Ed Helm as treasurer of the political committee and displayed a local address. The advertisements did not contain any form of disclosure indicating that they were paid political advertisements.. 6 BROOM also distributed the advextisements to at least two persons who did not sign VOICE s petition supporting the suong mayor issue Winifred Foster is not a member of BROOM, and she received a copy of the first advertisement in February 1995 through the mail. Babette Husick is not a member of BROOM, and she received a copy of the second advertisement at a candidate forum prior to the general election 7 The two political advertisements were separately mailed to the recipients and FAAOOI (02196)

5 I were not part of a newsletter.. No evidence was produced that BROOM has or ever had a newsletter for its members.. 8. Mr. Helm testified that BROOM relied on a statement in a document entitled Candidate Handbook on Campaign Financing, p.. 14, (1992 Ed) (Exhibit 7) that was produced by the Florida State Association of Supervisors of Elections, when determining whether to include a political disclaimer on its political advertisements The statement read in pertinent part as follows:,,--- 1 (2) Any political advertisement and any campaign literature published, displayed or circulated prior to, or on the date of election, must be marked "paid political advertisement" or "pd. pol adv." The political advertisement must identify the persons or organizations sponsoring the advertisement; state whether the advertisement and the cost of production is paid for or provided in-kind by or at the expense of the entity publishing, displaying, broadcasting, or circulating the political advertisement; state who provided or paid for the advertisement and cost of production, if different from the source of sponsorship. This paragraph shall not apply if the source of the sponsorship is patently clear from the content or format of the political advertisement or campaign literature Respondent Fulton has been the Chair or Co-Chair of BROOM since In 1993 Respondent Fulton ran for a city office and signed a Statement of Candidate form indicating that she had "received, read and understood the requirements of Chapter 106, Florida Statutes." Exhibit 5.. At the same time, the City Clerk gave her a copy of Chapter 106, Florida Statutes, and the Candidate Handbook on Campaign Financing. CONCLUSIONS OF LAW L The Commission has jurisdiction over the parties to and subject matter of this F cause, pursuant to Section 10626, Florida Statutes FAAOO! (02196)

6 ,, I 2.. Respondent BROOM is a political committee organized under the provisions of Section , Florida Statutes. Respondent Fulton is the Chair or Co-Chair of the committee.. 3. The term "political advertisement" is defined in Section (17), Florida Statutes, as follows: (17) "Political advertisement" means a paid expression in any communications media prescribed in subsection (13), whether radio, television, newspaper, magazine, periodical, campaign literature, direct mail, or display or by means other than the spoken word in direct conversation, which shall support or oppose any candidate, elected public official, or issue.. However, political advertisement does not include: (a) A statement by an organization, in existence prior to the time during which a candidate qualifies or an issue is placed on the ballot for that election, in support of or opposition to a candidate or issue, in that organizations newsletter, which newsletter is distributed only to the members of that organization.. (b) Editorial endorsements by any newspaper, radio or television station, or other recognized news medium. 4.. BROOM is charged with violating Section (1), Florida Statutes.. To show a violation of this section, the Division must prove the following elements: BROOM published, displayed, broadcast or circulated a political advertisement; the political advertisement was circulated prior to or on the day of any election; the political advertisement failed to contain the wording "pd. pol adv." or "paid political advertisement" and to identify the person 01 organization sponsoring the advertisement, and the act was done willfolly.. 5. The first element to be proved is that BROOM published, displayed, broadcast or circulated a political adve1tisement. Testimony during the hearing established that BROOM created and circulated two documents prior to the 1995 city elections.. The documents are ~ political advertisements because they were paid for by BROOM, distributed by direct mail or at a F AAOOJ (02196)

7 candidates forum, and supported or opposed candidates in an upcoming election.. Exhibits 2 & 3 6 The second element to be proved is that the political advertisements were published, displayed, broadcast or circulated prior to or on the day of an election. Testimony during the hearing established that the political advertisements were circulated through the mail and at a candidate forum prior to the February 1995 primary election and the March 1995 general election for the St. Petersburg City Council. 7 The third element to be proved is that the political advertisements failed to contain the following: "paid political advertisement" or "pd.. pol adv." and the identity of the sponsor of the advertisement A review of Exhibits 2 & 3 reveals that the disclaimer is not present on either advertisement. 8.. The last element to be proved is willfulness.. Willful conduct is an element of every violation of Chapter 106, Florida Statutes The Department of State has adopted a rule outlining the standard for determining "willfulness" at ld (10), Fla. Admin.. Code (1996), that reads: For the purposes of the civil penalties of Chapter 106, Florida Statutes, which require that the Respondent act "willfully" or Commit a "willful" violation: (a) "Willful" means the respondent knew or showed reckless disregard for whether the respondents conduct was prohibited or required by Chapter 106. (b) "Knowingly" or "knew" means the respondent was aware of a provision of Chapter 106, understood the meaning of the provision, and then performed an act prohibited by that provision, or failed to perform an act required by that provision ( c) "Reckless disregard" means: (1) The respondents conduct was marked by careless disregard for F AAOO! (02/96)

8 whether or not the respondent had the right to perform an act prohibited by a provision of Chapter 106, as the respondent did, or (2) The respondents conduct was marked by careless disregard for whether or not the respondent had the right not to perform an act required by a provision of Chapter 106, as the respondent did, or (3) The respondent disregarded a provision of Chapter 106 or was plainly indifferent to its requirements BROOM had been in existence for approximately two years prior to the 1995 elections.. BROOM had actively participated in the community in support of the strong mayor form of government For these reasons, BROOM acted willfully by failing to include the required disclaimers on its political advertisements.. 10 In its defense, BROOM claimed that the advertisements were exempt from the definition of political advertisements, because they were part of a newsletter sent only to ( BROOM s members.. This is not plausible.. These advertisements do not fit any recognizable definition of a "newsletter;" BROOM produced no evidence that the committee ever had any periodical publications or that it regularly distributed information to its members about its activities and positions by any print or electronic media.. In addition, neither of the advertisements contain neither a printed volume or issue number nor any masthead designating them as newspapers, periodicals or "newsletters " In short, the advertisements contain none of the indicia that would normally be found in a regularly published "newsletter" cf. Federal Election Commission v. Massachusetts Citizens for Lifo. 479 U.S. 238, 107 S..Ct 616 (1986) Therefore, the documents circulated by BROOM were not newsletters mailed to its members, but were political advertisements mailed to the public for political pmposes.. 1 L BROOM also claimed in its defonse that the 15,000 individuals who signed VOICEs petition to place the strong mayor issue on the 1993 ballot were its "members." FAAOO! (02196)

9 I Floridas election laws do not provide that a person who signs a petition automatically becomes a member of every organization or committee supporting the same issue.. BROOMs contention that any of those 15,000 individuals could have contacted BROOM and asked to be removed from the mailing list is not plausible A person cannot request to be removed from an organization of which he does not know he is a member 12.. To be a member of an organization requires, at the very least, evidence of an intent to join the organization.. Membership must be shown by objective evidence.. Killian v. U. ~. 368 U S.. 231, 82 S.. Ct 302 (1961).. BROOM has produced no evidence that those who signed VOICEs petition ever intended to join BROOM. "Membership" in an organization cannot be infoxred from simply signing a petition to allow an issue supported by that organization to be placed on the ballot Such a construction would make the conscious act of "joining" / I meaningless and would subject an unknowing individual to be considered a "member" of an organization when the individual had no intention of joining the group BROOM also argued that the political advertisements were exempt from the disclaimer, because the sponsor of the advertisements was "patently clear" on the face of the advertisement. BROOM cites to Section (l)(c)2.., Florida Statutes, which it contends obviates the requirement to include a disclaimer Section (1), Florida Statutes, reads as follows F (1) Any political advertisement and any campaign literature published, displayed, or circulated prior to, or on the day of, any election shall: (a) Be marked "paid political advertisement" or with the abbreviation "pd.. pol adv." (b) Identify the persons or organizations sponsoring the advertisement. F AAOOI (02196)

10 I (c)la.. State whether the advertisement and the cost of production is paid for or provided in kind by or at the expense of the entity publishing, displaying, broadcasting, or circulating the political adve1tisement; m b.. State who provided or paid for the advertisement and the cost of production, if different from the source of sponsorship This paragraph shall not apply if the source of the sponsorship is patently clear from the content or format of the political adve1tisement or campaign literature. This subsection does not apply to campaign messages used by a candidate and his suppo1ters which messages are designed to be worn by a person. 14. BROOMs construction of this statuto1y provision is clearly incmrect This provision states that if a person or group provided the political adve1tisement in-kind to a campaign or a committee or if a person or group provided se1vices to produce or broadcast the I adve1tisement, the political adve1tisement must so state. However, if the identity of the person or group is patently clear from the content of the advertisement, naming the person 01 group is not required This provision does not excuse BROOM from failing to include the standard disclaimer Rather, it requires that under the circumstances described above additional info1mation must be included.. The political disclaimer on BROOM s political adve1tisements did not require the additional info1mation and should have read as follows: "paid political adve1tisement" m "pd pol adv.," "paid for by the campaign account of BROOM " 15.. BROOM violated Section (1), Flo1ida Statutes, by publishing 01 ci1culating p1ior to or on the day of the elections, political advertisements that failed to be maiked "paid political adve1tisement" or "pd. pol adv " and to identify the sponsor of the advertisement F AAOO! (02196)

11 I ORDER Based upon the foregoing facts and conclusions of law, the Floxida Elections Commission finds that BROOM violated Section (1), Flmida Statutes.. Therefore, it is ORDERED that BROOM shall remit a civil penalty in the amount of $500.. The civil penalty shall be paid to the Florida Elections Commission, Room 2002, The Capitol, Tallahassee, Florida , within 30 days of the date this Final Order is received by BROOM.. DONE AND ENTERED by the Florida Elections Commission and filed with the Clerk of the Commission on April 21, 1997 in Tallahassee, Florida Carlos Alvarez, Chai"rrrf<m Florida Elections Co m1ss10n Room 2002, The Capitol Tallahassee, FL NOTICE OF RIGHT TO APPEAL Pursuant to Section , Florida Statutes, the Respondent may appeal the Commissions Final Order to the appropriate disuict comt of appeal by filing a notice of appeal both with the Clerk of the Florida Elections Commission and the Clerk of the disuict comt of appeal. The notice must be filed within 30 days of the date this Final Order was filed and must be accompanied by the appropriate filing fee.. Copies furnished to: Lynne A Quimby-Pennock, Assistant General Counsel Pauicia T. Fulton, Chair, BROOM Political Committee, Respondent Adrien Waller Helm, Attorney for Respondent (certified mail) Babette Husick, Complainant Jane Brown, Filing Officer FAAOO! (02/96)

12 ..:_~<.,... I MANDATE, ((,, } i, ~~.._,. - FROM DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT STYLE: Patricia T. Fulton v. Division of Elections COUNTY: Pinellas APPELLATE CASE NO: TRIAL COURT CASE NO: FEC This cause having been brought to this court by appeal and after due consideration, the court having issued its opinion; YOU ARE HEREBY COMMANDED that further proceedings be had in said cause in accordance with the opinion of this court and with the rules of procedure and laws of the State of Florida. Witness, The Honorable Edward F. Threadgill, Jr., Chief Judge of the District Court of Appeal of the State of Florida, Second District, and the seal of the said court at Lakeland, Florida, on this day. April 8, 1997 = ::--- William A. Haddad Clerk, District Court of Appeal Second District

13 ; I NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED IN THE DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT PATRICIA T FULTON, as Chair of ) BROOM Political Committee, and ) BROOM POLITICAL COMMITTEE, ) ) Appellants, ) ) v.. ) ) DIVISION OF ELECTIONS, ) ) Appellee.. ) ~~~~~~~~~~~~- ) Case No Opinion filed March 12, c.2:<~... o :::.: Appeal from the Florida Elections Commission ~ Adrien W. Helm, St Petersburg, for Appellants. Robert A. Butterworth, Attorney General, and John J.. Rimes, Ill,, Assistant Attorney General, Tallahassee, for Appellee.. PARKER, Acting Chief Judge Patricia T Fulton and Broom Political Committee (BROOM) appeal the F order of the Florida Elections Commission (Commission) finding that BROOM violated

14 I Florida elections laws and imposing a $500 penalty against BROOM. We affirm the order as to BROOM. We reverse the order as to Ms.. Fulton and direct the Commission to strike any reference in its order indicating that Ms Fulton is individually liable for the willful violation of elections laws or for paying the fine.. The Commission properly found that BROOM willfully violated section , Florida Statutes (1995), based on Mr Edward Helms publishing and distributing BROOM literature which did not contain the statement "paid political advertisement" or "pd pol adv " Therefore, we affirm that portion of the order without further discussion As to Ms Fulton, the Commissions order states that "Respondent Fulton and BROOM will be treated as a single entity (BROOM) insofar as their responsibilities I,- are coextensive.." Based upon the evidence in this case, we conclude that the order fixing responsibility for violation of election laws on both Ms Fulton and BROOM was error.. The Commission concedes that under the standard set forth in Sanders v. Florida Elections Commission, 407 So. 2d 1069 (Fla. 4th DCA 1981), Ms.. Fulton was negligent merely in failing to insure that the appropriate disclaimers were placed on the BROOM literature at issue here.. Thus, the Commission, by its own admission, could not have found Ms. Fulton in willful violation of election laws.. There is no provision in chapter 106 which authorizes the Commission to hold an officer of a political committee responsible for paying a civil penalty imposed on the political committee for actions F 1 The stated rationale in this record for the Commission keeping Ms Fulton as a party was so that the Commission could have "a warm body to go after" if there was a fine to be rendered -2-

15 I committed by a different officer. We disagree with the Commissions argument that in section , Florida Statutes (1995), 2 the legislature intended to hold political committee chairs individually liable for civil penalties imposed by the Commission for willful violations of paragraph (c) of subsection (1 ), which appears to encompass the violation at issue here, where other committee members committed the violation 2 The relevant portions of that statute state: Violations by candidates, persons connected with campaigns, and political committees.- (1) Any candidate; campaign manager, campaign treasurer, or deputy treasurer of any candidate; committee chair, vice chair, campaign treasurer, deputy treasurer, or other officer of any political committee; agent or person acting on behalf of any candidate or political committee; or other person who knowingly and willfully: (c) Falsely reports or deliberately fails to include any information required by this chapter; or is guilty of a misdemeanor of the first degree, punishable as provided in s ors (2) Any candidate, campaign treasurer, or deputy treasurer; sny chair, vice chair, or other officer of any political committee; any agent or person acting on behalf of any candidate or political committee; or any other person who violates paragraph (a), paragraph (b), or paragraph (d) of subsection (1) shall be subject to a civil penalty equal to 3 times the amount involved in the illegal act Such penalty may be in addition to the penalties provided by subsection (1) and shall be paid into the General Revenue Fund of this state.. The Division of Elections shall have authority to bring a civil action in circuit court to recover such civil penalty.. F -3-

16 We also reject the Commissions argument that, under Guyton v. Howard, 525 So 2d 948 (Fla.. 1st DCA 1988), the Commission could hold Ms.. Fulton, as Cochair of BROOM, individually liable for paying the fine. We construe Gyyton to be inapplicable here and, even under Gyyton, an individual member of an unincorporated association would not be personally liable for violation of election laws based on actions by other members of the association in which the individual member did not participate or set the action in motion or agree to the action of the other members Here, it was undisputed that Ms. Fulton did not see the literature before it was published or participate in its distribution Consequently, Ms.. Fulton correctly argues that she should not be held liable for the civil penalty.. We affirm the finding of a willful violation by BROOM, reverse the order (- as it applies to Ms Fulton, and remand the order to the Commission with instruction to strike from the final order the reference to Ms Fulton as being responsible for the violation or paying the penalty FULMER and NORTHCUTT, JJ, Concur F -4-

17 (,----, STATE OF FLORIDA FLORIDA ELECTIONS COMMISSION Division of Elections, Petitioner, v. Case No.. : FEC F.O. No: DOSFEC Patticia T. Fulton, Chair, BRO<?M Political Committee, Respondent FINAL ORDER THIS CAUSE came on to be heard at a formal hearing held before the Florida Elections Commission on April 5, 1996 in Tampa, Florida APPEARANCES For Division: For Respondent: Lynne A. Quimby-Pennock Assistant General Counsel Department of State Division of Elections Room2002 Tallahassee, FL Adrien Waller Helm, Esq h A venue South St Petersburg, Florida STA 1EMENT OF THE ISSUE Whether the Respondent violated Section (1), Florida Statutes, by failing to place the required disclaimer on political advertisements produced and sponsored by them so as to subject them to penalties for violation of Chapter 106, Florida Statutes, as F provided in Section (1), Florida Statutes.. FAAOO! (02196)

18 ,. I PRELIMINARY STATEMENT On March 15, 1995, the Division of Elections received a sworn complaint alleging violations of Floridas election laws.. The Division conducted an investigation to determine whether the facts alleged in the complaint constituted probable cause to believe that the Respondent violated the following section of Chapter 106, Florida Statutes: Section (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.. On January 26, 1996, David A. Rancourt Director of the Division of Elections, signed a Statement of Findings determining that there was probable cause to believe that Chapter 106, Florida Statutes, was violated.. On February 9, 1996, the Florida Elections Commission entered an Order of Probable Cause finding that there was probable cause to ( believe that the Respondent violated Section (1), Florida Statutes The Respondent timely requested a hearing and was noticed to appear before the Commission on April 5, Prior to the hearing, the Division sought and received leave to dismiss Edward G. Helm, Treasurer of BROOM Political Committee, from the case. Fox purposes of this order, Respondent Fulton and BROOM will be treated as a single entity (BROOM) insofar as their responsibilities are coextensive, as is noted in Paragraph 2 of the Conclusions of Law set forth below. Also prior to the hearing, BROOM raised a Motion to Dismiss based upon the Divisions alleged failure to respond to Respondents public record request received on March 19, 1996 This motion is hereby DENIED in light of the representation made by FAAOO! (02/96)

19 the Division at the hearing that all material responsive to the request was forwarded to,. I. BROOM and was acknowledged as having been received by BROOM through its representative.. BROOMs other grounds for seeking dismissal of the Order of Probable Cause dated February 9, 1996 are found to be without merit and are hereby DENIED.. At the formal hearing, the Divisiofi presented the oral testimony of Babette Husick, Jane Brown, Winifred Foster, and David Flagg.. The Division and BROOM offered 10 jointly stipulated exhibits that were admitted into evidence.. BROOM presented the testimony of Edward Helm and Timothy Bergmann.. At the close of the hearing both parties made closing arguments and declined their right to submit proposed final orders. L FINDINGS OF FACT The Commission is charged with enforcing Section and Chapter 1 106, Florida Statutes, the campaign financing law BROOM is a political committee formed in 1993 to assist the voters of St Petersburg, Florida, to understand the charter amendment providing for ll "strong mayor" that was voted on and adopted in the 1993 elections. Patricia T. Fulton has been the Chair or Co-Chair of the Committee since the Committee was formed.. Exhibit L 3 In 1992, a political committee named St. Pete V.O..LCE (VOICE) circulated a petition to force the St Petersburg city council to put on the ballot an issue that would change the citys form of government from a city manager to a strong mayor.. Approximately 15,000 people signed the petition.. 4 Prior to the 1995 city elections, BROOM mailed two political FAAOOI (02/96)

20 advertisements to some of the 15,000 individuals who signed VOICEs petition in BROOM took the position that by signing the petition all 15,000 individuals became members of BROOM.. VOICE circulated the "strong mayor" petition prior to BROOMs creation.. No evidence was inttoduced that any of the 15,000 individuals who signed the petition had any interest in becoming a "member" of BROOM. 5.. Both advertisements circulated by BROOM were one page documents that began with the heading "BROOM" in bold letters and were addressed to "Dear Neighbor." In the same language, both advertisements recounted BROOMs efforts to change St Petersburgs government and the need to continue that work The first advertisement solicited support for candidates in the primary election for the St. Petersburg City Council who supported BROOMs position on the sttong mayor issue.. The second advertisement solicited support for like-minded candidates in the general election.. Both advertisements were signed by Tim Bergmann as co-chair and Ed Helm as treasurer of the political committee and displayed a local address The advertisements did not contain any form of disclosure indicating that they were paid political advertisements.. 6 BROOM also distributed the advertisements to at least two persons who did not sign VOICEs petition supporting the strong mayor issue.. Winifred Foster is not a member of BROOM, and she received a copy of the first advertisement in February 1995 through the mail Babette Husick is not a member of BROOM, and she received a copy of the second advertisement at a candidate forum prior to the general election. FAAOOI (02/96)

21 7.. The two political advertisements were separately mailed to the recipients / I, and were not part of a newsletter No evidence was produced that BROOM has or ever had a newsletter for its members. 8.. Mr.. Helm testified that BROOM relied on a statement in a document entitled Candidate Handbook on Campaign Financing, p.. 14, (1992 Ed.) (Exhibit 7) that was produced by the Florida State Association of Supervisors of Elections, when determining whether to include a political disclaimer on its political advertisements. The statement read in pertinent part as follows: I (2) Any political advertisement and any campaign literature published, displayed or circulated prior to, or on the date of election, must be marked "paid political advertisement" or "pd.. pol adv.." The political advertisement must identify the persons or organizations sponsoring the advertisement; state whether the advertisement and the cost of production is paid for or provided in-kind by or at the expense of the entity publishing, displaying, broadcasting, or circulating the political advertisement; state who provided or paid for the advertisement and cost of production, if different from the source of sponsorship.. This paragraph shall not apply if the source of the sponsorship is patently clear from the content or format of the political advertisement or campaign literature.. 9. Respondent Fulton has been the Chair or Co-Chair of BROOM since In 1993 Respondent Fulton ran for a city office and signed a Statement of Candidate form indicating that she had "received, read and understood the requirements of Chapter 106, Florida Statutes.. " Exhibit 5.. At the same time, the City Clerk gave her a copy of Chapter 106, Florida Statutes, and the Candidate Handbook on Campaign FAAOOI (r.t2196)

22 Financing.. CONCLUSIONS OF LAW L The Commission has jmisdiction over the parties to and subject matter of this cause, pursuant to Section 10626, F101ida Statutes 2.. Respondent BROOM is a political committee 01ganized under the provisions of Section , F101ida Statutes Respondent Fulton is the Chair or Co- Chair of the committee and, as such is responsible for its compliance with the provisions of Chapter 106, Flo1ida Statutes The te1m "political adve1tisement" is defined in Section (17), F101ida Statutes, as follows: (17) "Political adve1tisement" means a paid expression in any communications media prescxibed in subsection (13), whether radio, television, newspaper, magazine, pexiodical, campaign literatme, direct mail, or display or by means other than the spoken word in direct conversation, which shall suppo1t or oppose any candidate, elected public official, 01 issue.. However, political adve1tisement does not include: (a) A statement by an 01ganization, in existence piior to the time dming which a candidate qualifies or an issue is placed on the ballot for that election, in suppo1t of or opposition to a candidate or issue, in that organizations newsletter, which newslette1 is distxibuted only to the members of that organization.. (b) Editoiial endorsements by any newspaper, radio or 1 Section 10603(2)(e), Florida Statutes requires the listing of principal officers in a political committees statement of organization and it is apparent that the Legislature intended that such principal officers be held responsible for assuring the compliance of the committee with the provisions of Chapter 106, Florida Statutes.. It is the chair of the political committee who, as provided in Section (l)(c), Florida Statutes, is responsible for including any information required by the provisions of Chapter 106, Florida Statutes.. Further, under Florida law an unincorporated association, such as BROOM, may only be liable at law for its act through its members: Guyton v. Howard, 525 So 2d 948, (Fla. l" DCA 1988).. FAAOO! (02/96)

23 ,, I television station, or other recognized news medium. 4.. BROOM is chaiged with violating Section (1), Florida Statutes.. To show a violation of this section, the Division must prove the following elements: BROOM published, displayed, broadcast or circulated a political advertisement; the political advertisement was circulated prior to or on the day of any election; the political advertisement failed to contain the wording "pd pol. adv." or "paid political advertisement" and to identify the person or organization sponsoring the advertisement, and the act was done willfully The first element to be proved is that BROOM published, displayed, broadcast or circulated a political advertisement. Testimony during the heaiing established that BROOM created and circulated two documents prior to the 1995 city I elections. The documents rue political advertisements because they were paid for by BROOM, distributed by direct mail or at a candidates forum, and supported or opposed candidates in an upcoming election.. Exhibits 2 & 3 6 The second element to be proved is that the political advertisements were published, displayed, broadcast or circulated prior to or on the day of an election. Testimony during the heaiing established that the political advertisements were circulated through the mail and at a candidate forum prior to the Februaiy 1995 primaiy election and the Maich 1995 general election for the St Petersburg City Council 7.. The third element to be proved is that the political advertisements failed to F contain the following: "paid political advertisement" or "pd.. pol adv " and the identity of F AAOOI (02/96)

24 the sponsor of the advertisement A review of Exhibits 2 & 3 reveals that the disclaimer is not present on either advertisement 8.. The last element to be proved is willfolness.. Willfol conduct is an element of every violation of Chapter 106, Florida Statutes.. The Department of State has adopted a rule outlining the standard for determining "willfulness" at ld-10025(10), Fla.. Admin.. Code (1996), that reads: For the purposes of the civil penalties of Chapter 106, Florida Statutes, which require that the Respondent act "willfully" or Commit a "willful" violation: (a) "Willful" means the respondent knew or showed reckless disregard for whether the respondents conduct was prohibited or required by Chapter (b) "Knowingly" or "knew" means the respondent was aware of a provision of Chapter 106, understood the meaning of the prov1s10n, and then performed an act prohibited by that provision, or failed to perform an act required by that provision ( c) "Reckless disregard" means: (1) The respondents conduct was marked by careless disregard for whether or not the respondent had the right to perform an act prohibited by a provision of Chapter 106, as the respondent did, or (2) The respondents conduct was marked by careless disregard for whether or not the respondent had the right not to perform an act required by a provision of Chapter 106, as the respondent did, or (3) The respondent disregarded a provision of Chapter 106 or was plainly indifferent to its requirements. 9 BROOM had been in existence for approximately two years prior to the 1995 elections.. BROOM had actively participated in the community in support of the strong mayor form of government Respondent Fulton was a candidate for city office in FAAOO! (fl2196)

25 the 1993 elections when the "sttong mayor" initiative referendum was placed on the ballot At that time, she signed a Statement of Candidate form (Exhibit 5) and the City Clerk gave her a copy of Chapter 106, Florida Statutes, and the Candidate Handbook on Campaign Financing.. For these reasons, BROOM acted willfully by failing to include the required disclaimers on its political advertisements 10.. In its defense, BROOM claimed that the advertisements were exempt from the definition of political advertisements, because they were part of a newsletter sent only to BROOMs members.. This is not plausible. These advertisements do not fit any recognizable definition of a "newsletter." BROOM produced no evidence that the committee ever had any periodical publications or that it regularly disttibuted information r I \ to its members about its activities and positions by any print or electtonic media.. In addition, neither of the advertisements contain neither a printed volume or issue number nor any masthead designating them as newspapers, periodicals or "newsletters." In short, the advertisements contain none of the indicia that would normally be found in a regularly published "newsletter" cf.. Federal Election Commission v. Massachusetts Citizens for Life, 479 US 238, 107 S Ct 616 (1986).. Therefore, the documents circulated by BROOM were not newsletters mailed to its members, but were political advertisements mailed to the public for political purposes.. 11 BROOM also claimed in its defense that the 15,000 individuals who signed VOICEs petition to place the sttong mayor issue on the 1993 ballot were its "members " Floridas election laws do not provide that a person who signs a petition automatically becomes a member of every organization or committee supporting the same FAAOO! (fj2196)

26 issue.. BROOMs contention that any of those 15,000 individuals could have contacted BROOM and asked to be removed from the mailing list is not plausible. A person cannot request to be removed from an organization of which he does not know he is a member To be a member of an organization requires, at the very least, evidence of an intent to join the organization.. Membership must be shown by objective evidence. Killian v. U. S., 368 U. S.. 231, 82 S Ct. 302 (1961) BROOM has produced no evidence that those who signed VOICEs petition ever intended to join BROOM.. "Membership" in an organization cannot be inferred from simply signing a petition to allow an issue supported by that organization to be placed on the ballot Such a construction would make the conscious act of.joining" meaningless and would subject an unknowing individual to be considered a "member" of an organization when the individual had no intention ofjoining the group BROOM also argued that the political advertisements were exempt from the disclaimer, because the sponsor of the advertisements was "patently clear" on the face of the adve1tisement BROOM cites to Section (1)(c)2., Florida Statutes, which it contends obviates the requirement to include a disclaimer.. Section (1), Florida Statutes, reads as follows (1) Any political adve1tisement and any campaign literature published, displayed, or circulated prior to, or on the day of, any election shall: (a) Be marked "paid political advertisement" or with the abbreviation "pd.. pol adv " (b) Identify the persons or organizations sponsoring the advertisement F AAOOI (02/96)

27 (c)la State whether the advertisement and the cost of production is paid for or provided in kind by or at the expense of the entiw publishing, displaying, broadcasting, or circulating the political advertisement; or b.. State who provided or paid for the advertisement and the cost of prnduction, if diffoxent ftom the source of sponsorship. 2.. This paragraph shall not apply if the source of the sponsorship is patently clear from the content or format of the political advertisement or campaign literature.. This subsection does not apply to campaign messages used by a candidate and his supporters which messages are designed to be worn by a person BROOMs construction of this statutory provision is clearly incorrect This prnvision states that if a person or group provided the political advertisement in-kind to a campaign or a committee or if a person or group provided services to produce or ( broadcast the advertisement, the political advertisement must so state. However, if the identiw of the person or group is patently clear from the content of the advertisement, naming the person or grnup is not required.. This provision does not excuse BROOM from failing to include the standard disclaimer.. Rather, it requires that under the circumstances described above additional information must be included.. The political disclaimer on BROOMs political advertisements did not require the additional information and should have read as follows: "paid political advertisement" or "pd.. pol adv.," "paid for by the campaign account of BROOM.. " 15. BROOM violated Section (1), Florida Statutes, by publishing or circulating prior to or on the day of the elections, political advertisements that failed to be marked "paid political advertisement" or "pd.. pol adv." and to identify the sponsor of the FAAOOI (<Y2196)

28 advertisement 1. ORDER Based upon the foregoing facts and conclusions of law, the Florida Elections Commission finds that BROOM violated Section (1 ), Florida Statutes. Therefore, it is ORDERED that BROOM shall remit a civil penalty in the amount of $500.. The civil penalty shall be paid to the Florida Elections Commission, Room 2002, The Capitol, Tallalrassee, Florida , within 30 days of the date this Final Order is received by BROOM.. DONE AND ENTERED by the Florida Elections Commission and filed with the Clerk of the Commission on April ;:)...,)...,, 1996 in Tallalrassee, Florida.. C z, Chairman Florida Elections Commissi n Room 2002, The Capitol Tallalrassee, FL NOTICE OF RIGHT TO APPEAL Pursuant to Section , Florida Statutes, the Respondent may appeal the Commissions 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 appropriate filing foe.. FAAOO! (W96)

29 Copies famished to: 1 \ Lynne A. Quimby-Pennock, Assistant General Counsel Patricia T. Fulton, Chair, BROOM Political Committee, Respondent (certified mail) Adrien Waller Helm, Attorney for Respondent Babette Husick, Complainant Jane Brown, Filing Officer F AAOOI (CJ2/96)