STATE OF FLORIDA FLORIDA ELECTIONS COMMISSION,,. ~"-,- f'e'i1,... ~: ') ;.~' ~! f : i ~ ~- L... ~- "",J ' FLORIDA ELECTIONS COMMISSION, PETITIONER, v. ORESTES J. JIMENEZ, RESPONDENT../ AGENCY CASE No.: FEC 05-094 05-118 F.O. No.: DOSFEC 06-038W FINAL ORDER THIS CAUSE came on to be heard at an informal hearing held before the Florida Elections Commission (Commission) on May 19, 2006, in Tallahassee, Florida. APPEARANCES For Commission For Respondent Charles A. Finkel General Counsel 107 W. Gaines Street Collins Building, Suite 224 Tallahassee, FL 32399 Orestes J. Jimenez 9032 Garland A venue Surfside, Florida 33154 STATEMENT OF THE ISSUE Whether the Respondent violated Section 104.071(1)(c), Florida Statutes, when he made a purchase for the five-member slate of candidates; Section 106.07(5), Florida Statutes, when he certified to the correctness of campaign treasurer's reports that were incorrect, false, or incomplete; and Section 106.143(1), Florida Statutes, when he published a political advertisement that failed to contain the correct disclaimer; and Section 106.19(1 )(b), Florida Statutes, when he accepted and failed to report an in-kind contribution. Faa005 (5/06)
PRELIMINARY STATEMENT On March 18 and 24, 2005, the Commission received sworn complaints alleging violations of Florida's election laws. Staff of the Commission conducted an investigation to determine whether the facts alleged in the complaint constituted probable cause to believe that the Respondent violated The Florida Election Code. On January 13, 2006, staff drafted Staff Recommendations recommending to the Commission that there was probable cause to believe that The Florida Election Code was violated. On February 24, 2006, the Commission entered an Order of Probable Cause finding that there was probable cause to charge the Respondent with the following violations in FEC 05-094: Count 1: n or about February 11, 2004, Respondent violated Section 104.071(1)(c), Florida Statutes, by giving, paying, expending, or contributing money or other thing of value to another candidate when he purchased $185.00 of postage for the five-member slate of candidates. Count 2: On or about February 27, 2004, Respondent violated Section 106.07(5), Florida Statutes, by certifying to the correctness of his 2004 G3 report that was incorrect, false, or incomplete, when he reported $15.00 in-kind contribution from Ruben Coto as "Copies/Envelopes," but did not record a specific value for each item; and reported $14.11 in-kind contribution from Frank MacBride as "Labels/Supplies," but did not record a specific value for each item; and reported $44.40 contribution from Ruben Coto as "Postage," but did not record a specific value for each item. Count 3: On or about March 12, 2004, Respondent violated Section 106.07(5), Florida Statutes, by certifying to the couectness of his 2004 G4 report that was incorrect, false, or incomplete, when he failed to report three in-kind contributions from Tim Will, one inkind contribution from Frank MacBride, and one in-kind contribution from Steven Levine; reported two $25.00 in-kind Faa006 ( 5/06) 2
contributions from Paul Novack as "Copies/Postage," but did not record specific value for each item; reported $25.00 in-kind contribution from Alan Rubin as "Postage/Labels," but did not record specific value for each item; and reported $30 in-kind contribution from Mickey Novack as "Copies/Postage," but did not record specific value for each item. Count 4: On June 14, 2004, Respondent violated Section 106.07(5), Florida Statutes, by certifying to the correctness of his Amended 2004 G4 report that was incorrect, false, or incomplete, when he failed to report one in-kind contribution from Steven Levine. Count 5: On or about March 8, 2004, Respondent violated Section 106.143(1), Florida Statutes (2002), by failing to mark prominently the political advertisement with the correct disclaimer, when the political advertisement failed to state who paid for the ad. (Exhibit 11 attached to Report of Investigation). Count 6: On or about March 12, 2004, Respondent violated Section 1 06.19(1 )(b), Florida Statutes, by failing to report a contribution required to be reported by Chapter 106, Florida statutes, when he accepted an in-kind contribution in the amount of $66.55 from Steven Levine and failed to report it on his 2004 G4 Report. On February 24, 2006, the Commission entered an Order of Probable Cause finding that there was probable cause to charge the Respondent with the following violations in FEC 05-118 1 : Count 1: On or about February 27, 2004, Respondent violated Section 106.07(5), Florida Statutes, by certifying to the correctness of his 2004 G3 report that was incorrect, false, or incomplete, when he reported $15.00 in-kind contribution from Ruben Coto as "Copies/Envelopes," but did not record a specific value for each item; and reported $14.11 in-kind contribution from Frank MacBride as "Labels/Supplies," but did not record a specific value 1 The Order of Probable Cause was amended on Aptil26, 2006, to correct a scrivener's enor Faa006 ( 5/06) 3
for each item; and reported $44.40 contribution from Ruben Coto as "Postage," but did not record a specific value for each item. Count 2: On or about March 12, 2004, Respondent violated Section 106.07(5), Florida Statutes, by certifying to the conectness of his 2004 G4 report that was incorrect, false, or incomplete, when he failed to report three in-kind contributions from Tim Will, one inkind contribution from Frank MacBride, and one in-kind contribution from Steven Levine; reported two $25.00 in-kind contributions from Paul Novack as "Copies/Postage," but did not record specific value for each item; reported $25.00 in-kind contribution from Alan Rubin as "Postage/Labels," but did not record specific value for each item; and reported $30 in-kind contribution from Mickey Novack as "Copies/Postage," but did not record specific value for each item. Count 3: On June 14, 2004, Respondent violated Section 106.07(5), Florida Statutes, by certifying to the correctness of his Amended 2004 G4 report that was incorrect, false, or incomplete, when he failed to report one in-kind contribution from Steven Levine. Count 4: On or about March 12, 2004, Respondent violated Section 1 06.19( 1 )(b), Florida Statutes, by failing to report a contribution required to be reported by Chapter 106, Florida statutes, when he accepted an in-kind contribution in the amount of $66.55 from Steven Levine and failed to report it on his 2004 G4 Report. Respondent timely requested an informal hearing and was noticed to appear before the Commission on May 19, 2006. At the informal hearing, staff presented the undisputed facts contained in the StaffRecommendation. Respondent did not appear at the hearing. FINDINGS OF FACT 1. The Respondent, Orestes Jimenez, was elected to the Surfside Town Commission, Seat Four, on March 16, 2004. Respondent was a first-time candidate. Respondent's term of office is two-years. As a member of the town commission, his compensation is $1 a year. Respondent is retired. F aa006 ( 5/06) 4
2. The Complainant in FEC 05-094, Martin Wiescholek, supported the candidates that ran as a "slate" opposing Respondent. He paid for a banner, carried by an airplane, which supported his favored candidates. Additionally, Complainant is an officer with "Friends of Surfside Cats, Inc.," a non-profit corporation that, according to a newspaper article, has been at odds with the Surfside Town Commission regarding the feeding of stray cats. 3. The Complainant in FEC 05-118, Jay Senter, is a resident of North Miami, Florida; he was not a candidate in the election. Complainant is an officer of "Victims for Truth, Inc.," an independent non-profit corporation that uses nonviolent methods to expose abuse at the local government level and to ensure transparency in governmental decisions. 4. Respondent and four other candidates for public office in Surfside campaigned as a five-member "slate" of candidates. Campaign literature, such as campaign signs and flyer advertisements, was published and distributed in support of the five-member slate of candidates. 5. Respondent's 2004 G3 report listed an expenditure to the U.S. Postal Service for $185.00 and two expenditures to Board of County Commissioners for $36 and $25.32 on February 11, 2004. Respondent failed to designate the purpose of the expenditures. In his response to the complaint, Respondent did not specifically address this allegation, but he acknowledged that he purchased stamps, public records and a voters' list. In his affidavit, Respondent acknowledged that he purchased postage used to send out advertisements. 6. The 2004 G3 CTRs for candidates Will, Jimenez, Levine, and MacBride list an in-kind contribution of $49.20 on February 11, 2004, from Orestes Jimenez for "postage/voter list." There is no evidence that Respondent was reimbursed by the other candidates for these expenditures. 7. Complainant alleged that Respondent failed to report the in-kind value of campaign signs paid for by two members of the five-member slate, Steven Levine and Tim Will. Faa006 (5/06) 5
Additionally, Complainant alleged that Respondent inaccurately reported in-kind contributions and that Respondent's CTRs showed that Respondent and the other members of the five-member slate of candidates did not share equally in the cost of items such as postage, copies, labels and envelopes. 8. In an affidavit, Steven Levine stated that he personally paid for the signs at issue and that none of the other candidates reimbursed him for the expense. Mr. Levine added, "We just divided the cost by five and each one took his share as an in-kind contribution." Mr. Levine further said that he ordered approximately 150 "blank" signs and the signs were painted and designed by the candidates and some of the candidates' own children. 9. Respondent's original and amended 2004 G4 reports were void of any expenditure to or in-kind contribution from Steven Levine and Tim Will regarding signs. Respondent certified that both reports were true, correct and complete. Respondent stated that he did not expend any money toward the cost of the signs. In his response to the complaint, Respondent stated, "To the best of my knowledge the information in my Treasure's [sic] report was accurately stated based in [sic] the information available to me at the time I submitted my final report." Respondent added that at the time of filing the final report he had not received any information from Mr. Levine regarding the cost of signs. 10. Respondent's 2004 G4 report did not report in-kind contributions that appeared on the 2004 G4 reports of some of the other candidates, most notably candidates Will, Co to and MacBride. Mr. Will reported that his campaign absorbed the cost of the in-kind contributions, reported on his own report but not reported on Respondent's campaign reports, rather than to distribute and assign "immaterial" dollar increments to the other candidates. Mr. Coto reported that some of the items he paid for and used were for his own purposes but that another item, the $64.10 in-kind contribution for "Postcard paper," was purchased by him and used for the five- Faa006 ( 5/06) 6
member slate. 11. Information that was either falsely reported or not reported on Respondent's CTRs is summarized in Table 1: TABLE 1: MISSING AND INCORRECT INFORMATION ON RESPONDENT'S CTRs Date Reporting Missing Information Incorrect Information Filed Period 02/27/04 02/09/04 to Reported $15.00 in-kind 02/20/04 contribution from Ruben Coto as 2004 G3- "Copies/Envelopes." Did not record Original a specific value for each item Reported $14.11 in-kind contribution from Frank MacBride as "Labels/Supplies." Did not record a specific value for each item. Reported $44.40 in-kind contribution from Ruben Coto as "Postage." Did not record a specific value for each item. Faa006 (5/06) 7
03/12/04 02/21104 to Did not report the $2.14 in- Reported $25 in-kind 03/11/04 kind contribution from Frank contribution :fi:'om Paul Novack as MacBride for "paper." Mr. "Copies/Postage.." Did not record 2004 G4- MacBride has said that he was specific value for each item Original unsure why the in-kind Reported $25 in-kind contribution was reported on contribution from Alan Rubin as his report but not the reports of "Postage/Labels." Did not record Respondent and the other specific value for each item. candidates.. Reported $25 in-kind Did not report the $2.01 incontribution from Paul Novack as kind contribution from Tim "Postage/Copies.." Did not record Will for "Envelopes." Mr.. specific value for each item. Will acknowledged that the envelopes were used for Reported $30 in-kind political flyers that contained contr ibution from Mickey Novack the name of each candidate as "Copies/Postage." Did not and added his campaign record specific value for each item. absorbed the cost rather than distribute and assign immaterial $2.00 increments. Did not report the $3.37 inkind contribution :fi:'om Tim Will for "Signs, supplies, paint, etc." Mr. Will acknowledged that the signs contained the name of each candidate and added that his campaign absorbed the cost rather than distr ibute and assign $3.50 increments to the other candidates. Did not report the $2.52 inkind contribution :fi:'om Tim Will for "Signs, supplies, paint, etc." Mr. Will acknowledged that the signs contained the names of each candidate and added that his campaign absorbed the cost rather than distribute and assign $2.50 increments to the other candidates. Did not report a $66.55-kind contribution :fi: om Steven Levine for "Signs." Faa006 ( 5/06) 8
06/14/04 02/21/04 to Did not disclose in-kind contribution N/A 03/11/04 of campaign signs. 2004 G4- Amended 12. When asked how he was made aware of the in-kind value, Respondent said that each contributor advised him of the value. Additionally, Respondent said that he did not inquire as to the specific value of each in-kind contribution. 13. When Respondent was asked to explain the system or procedure he had in place when reviewing his campaign reports to determine the accuracy of each report, Respondent stated that he "revised" each line item in the report and verified contributions and expenditures. Respondent added that he made sure the in-kind contributions were documented. 14. Respondent's wife, Maria Jimenez, served as his campaign treasurer during the 2004 campaign. When asked, Respondent said that his wife had not served as the campaign treasurer for any candidate or political committee in the past. When asked to describe what experience or background his wife had that made him feel comfortable designating her as the campaign treasurer, Respondent said that she was a former manager of a financial institution for a number of years and he found her to be more than qualified. 15. Complainant submitted a number of political advertisements in the form of flyers, and a picture of a sign, that advocated the election of Respondent and the other members of the slate for public office. The table below summarizes the advertisements that were distributed during the months of February and March 2004: Faa006 ( 5/06) 9
TABLE 2: POLITICAL ADVERTISEMENTS DISTRIBUTED IN FEBRUARY & MARCH 2004 Description of advertisement Political disclaimer 1. Two-sided flyer reads, "STOP "Paid political adv. By Tim Will Campaign; OVERDEVELOPMENT.." Approved by Tim Will." 2. Two-sided flyer address to "VOTERS: IT IS "Pd. Pol. Ad. Tim Will For Mayor Campaign, VITAL TO KNOW THE FACTS." Approved by the Candidate." 3 One-sided flyer reads, "STOP "Paid Political adv. By Tim Will Campaign; OVERDEVELOPMENT." Approved by Tim Will and candidates listed.." 4. Two-sided flyer headed, "PRIORITIES" "Pd. Pol. Ad. Approved by the named candidates." 5. Two-sided flyer headed. "FOR THE "Pd. Pol. Ad.. Approved by each of the named FUTURE OF SURFSIDE." candidates." 6. Postcard advertisement "Pd. Pol. Ad.. Approved by the named candidates." 7. One-page flyer headed, "THEY'LL TELL Flyer is void of any political disclaimer YOU EVERYTHING BUT THE TRUTH." 8. Campaign yard sign "PAID Pol. Ad. approved by the named candidates." 16. Tim Will acknowledged that he was solely responsible for the wording of the political disclaimer for the flyers listed as numbers 1-5 in the above chart. Mr. Will stated that he looked for pertinent examples in the candidate's packet that was given to him but found no samples for candidates running as a slate. 17. Ruben Coto acknowledged that he was responsible for creating and designing the postcard advertisement (number 6). He stated that he was solely responsible for the wording of the postcard advertisement. Mr. Coto said that he used the same type of political disclaimer that had been used in other advertisements, had asked Mr. Will and a former commissioner about the political disclaimer, and believed it was good. 18. Respondent stated that he did not assist with the creation or design of the advertisement and that he became aware of it on the day of the election when it was being distributed. When asked whether he assisted with the wording of the political disclaimer, Faa006 (5/06) 10
Respondent stated, "Early in the campaign I and all members of the slate discussed and agreed on the wording on the political disclaimers." Respondent said that he was made aware his name would be included in the advertisement prior to its creation and distribution. Respondent acknowledged that he did approve of the advertisement. Respondent reported that he did not expend any money toward the cost of printing or reproducing the flyer. 19. In his affidavit, Respondent said that he did not assist with the creation, design, wording of the disclaimer, or distribution of the one-page flyer headed, "THEY'LL TELL YOU EVERYTHING BUT THE TRUTH," (number 7). Additionally, the other members of the fivemember slate attested that they did not create, design or distribute the flyer advertisement. 20. Respondent acknowledged that he assisted with the creation and design of the yard signs in that he "cut the signs in order to comply with Town Ordinance" and spray-painted the signs using stencils. Respondent further stated, "I had a group of supporters/volunteers to hand write the political disclaimers on each sign." 21. Regardless of whether the cost of the advertisements was equally shared by the five candidates or whether some or all of them constituted in-kind contributions, the various advertisements that are the subject of this complaint and are attached as exhibits to the Report of Investigation fail to meet the requirements of Section 106.143(1 ), Florida Statutes (2002). Advertisements number 1, 2, and 3 in the above chart endorsing and exhorting the electorate to vote for the five named candidates indicated that the ad was paid by the Tim Will Campaign. The three advertisements failed to state that MacBride, Jimenez, Levine, and Coto approved the ad. 22. Advertisements number 4, 5, 6, and 8 in the above charted indicated that all of the candidates approved the ad, but failed to state who paid for the ad. 23. Respondent participated in the production of the campaign yard sign. He is Faa006 (5/06) 11
equally responsible for the improper disclaimer. 24. Table 3 lists alleged unreported contributions received by Respondent during his 2004 campaign: TABLE 3: ALLEGED UNREPORTED CONTRIBUTIONS RECEIVED BY RESPONDENT Date Received Contributor Contribution Type AMOUNT 03/04/04 Steven Levine In-Kind, Signs $66.55 03/02/04 Tim Will In-Kind, Envelopes $2.01 03/06/04 Tim Will In Kind, Sign Supplies $3.37 03/07/04 Tim Will In-Kind, Sign Supplies $2.52 TOTAL $76.59 25. The items in Table 3 are in-kind contributions because Respondent failed to reimburse Levine, Will, and MacBride for his share of the expenditures. However, with the exception of the in-kind contribution from Levine for the signs, the amounts involved were too small to warrant an additional civil penalty. 26. Respondent willfully violated Sections 106.07(5), 106.143(1),and 106.19(1)(b) Florida Statutes. 2 27. Included in each of the candidate's package received from the Surfside Town Clerk, was the 2004 Qualifying Handbook for Municipal Candidates, which includes Chapter 106, Florida Statutes, as well as the 2004 Candidate and Campaign Treasurer Handbook. The 2 106.37, Fla. Stat., provides that a person willfully violates Ch. 106, Fla.. Stat.: 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. Faa006 ( 5/06) 12
handbook was accompanied by a letter from Penelope Townsley, an assistant director of operations with the Miami-Dade Supervisor of Elections office, which advised the candidate that the booklet was an informational package compiled by the Miami-Dade County Supervisor of Elections and was not intended as a complete digest of the election laws. The letter further advised the candidate that it was the candidate's responsibility to become familiar with the election code. The letter also notified the candidate of the internet address of both the Miami Dade Elections Department and the Division of Elections and reminded the candidate that a copy of the "State of Florida Election Law" may be viewed from the Division of Elections website. CONCLUSIONS OF LAW 28. The Commission has jurisdiction over the parties to and subject matter of this cause, pursuant to Section 106.26, Florida Statutes. 29. Section 104.071(1)(c), Florida Statutes, prohibits a candidate from directly or indirectly contributing any money or thing of value for the furtherance of the candidacy of another candidate. Candidates may voluntarily form a slate of candidates, but they must share equally in the cost of any joint advertisement. For example, a joint advertisement by three candidates that costs $300 must be paid and reported as a $100 expenditure frum each of the candidates. Each candidate should pay for his share directly to the vendor providing the service. See DE 98-07. 30. Section 106.143(1 ), Florida Statutes (2002) reqmres that any political advertisement circulated prior to any election shall identify the persons or organizations sponsoring the advertisement or must state who provided or paid for the advertisement if different from the source of sponsorship. The requirements contained in Section 106.143(1 ), Florida Statutes, related to political advertising, apply to each of the candidates included in the slate. See DE 98-07. Faa006 (5/06) 13
31. The Respondent committed three counts ofviolating Section 106.07(5), Florida Statutes, when he certified to the correctness of his 2004 G3, G4, and Amended G4 reports that were incorrect, false or incomplete; Respondent committed one count of violating Section 106.143(1 ), Florida Statutes (2002), when he failed to mark prominently the political advertisement with the coitect disclaimer; and Respondent committed one count of violating Section 106.19(1)(b), Florida Statutes, when he accepted an in-kind contribution and failed to report it on his 2004 G4 report. 32. Respondent's conduct was willful. Respondent committed the acts while knowing that, or showing reckless disregard for whether, the acts were prohibited or failed to commit an act while knowing that, or showing reckless disregard for whether, the acts were required. 33. Respondent did not violate Section 104.071(1)(c), Florida Statutes, as charged in Count 1 of the Order of Probable Cause in FEC 05-094. 3 Additionally, the four counts charged in FEC 05-118 are duplicative and will not be the subject of Respondent's civil penalty. 34. In determining the amount of the civil penalty, the Commission considered the mitigating and aggravating circumstances set forth in Section 106.265, Florida Statutes. The Commission finds that Respondent has sufficient financial resources to pay the fine imposed by the Commission. ORDER WHEREFORE the Commission finds that Respondent has violated the following provisions of Chapter 106, Florida Statutes, and imposes the following fines, inclusive of fees and costs: 3 Because of Fugate v. Florida Elections Commission, 924 So..2d 74 (Fla.. 1st DCA 2006), the Commission could not use Section 106.37, Flmida Statutes, as the "willfulness" standard dming this hearing. Faa006 (5/06) 14
A) Respondent violated Section 106.07(5), Florida Statutes, on three occasions. Respondent is fined $20 for each ofthe three counts for a total of$60. B) Respondent violated Section 106.14.3(1 ), Florida Statutes, on one occasion. Respondent is fined $20 for this count. C) Respondent violated Section 106.19(1 )(b), Florida Statutes, on one occasion. Respondent is fined $20 for this count. Therefore, it is ORDERED that Respondent shall remit a civil penalty in the amount of $100. The civil penalty shall be paid to the Florida Elections Commission, 107 W. Gaines Street, Collins Building, Suite 224, Tallahassee, Florida, 32399-1050, within 30 days of the date this Final Order is received by Respondent. It is further, ORDERED that Count 1 of the Order of Probable Cause m FEC 05-094 IS DISMISSED. DONE AND ENTERED by the Florida Elections Commission and filed with the Clerk of the Commission on May 26, 2006, in Tallahassee, Florida. Chance Irvine, Chairman Florida Elections Commission NOTICE OF RIGHT TO APPEAL Pursuant to Section 120.68, 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 appropriate filing fee. Faa006 ( 5/06) 15
Copies furnished to: Charles A. Finkel, General Counsel Orestes J. Jimenez, Respondent (certified mail) Martin Wiescholek, Complainant Jay Senter, Complainant Town of Surfside, Filing Officer Faa006 (5/06) 16