STATE OF FLORIDA FLORIDA ELECTIONS COMMISSION FLORIDA ELECTIONS COMMISSION, PETITIONER, v. NANCY SIMON, RESPONDENT. AGENCY CASE No.: FEC 04-009 F.O. No.: DOSFEC 04-213 W FINAL ORDER THIS CAUSE came on to be heard at an informal hearing held before the Florida Elections Commission (Commission) on November 17, 2004, in Tallahassee, Florida. APPEARANCES For Commission For Respondent Charles A. Finkel General Counsel 107 W. Gaines Street Collins Building, Suite 224 Tallahassee, FL 32399 Mark Herron Messer, Caparello & Self, P.A. P.O. Box 1876 Tallahassee, Florida 32302-1876 STATEMENT OF THE ISSUE Whether the Respondent violated Section 106.021(3), Florida Statutes, when she made several reimbursement to herself; Section 106.07(5), Florida Statutes, when she failed to include the full name and address of the vendor and the amount, date, and purpose for each check when she reported a $707.35 miscellaneous expense reimbursement to herself; and Section 106.141(8), Florida Statutes, when she failed to timely file her office account reports and certified to the correctness of office account reports that were incorrect, false, or incomplete. Faa004 (8/03)
PRELIMINARY STATEMENT On January 9, 2004, the Commission received a sworn complaint alleging violations of Florida's election laws. The 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 May 5, 2004, the staff drafted a Statement of Findings recommending to the Commission that there was probable cause to believe that The Florida Election Code was violated. On May 28, 2004, the Commission entered an Order of Probable Cause finding that there was probable cause to charge the Respondent with the following violations: Count 1: On December 30, 2002, Respondent violated Section 106.021(3), Florida Statutes, by prohibiting a person from making an expenditure except through the campaign treasurer when the Respondent reimbursed herself $50.00 for a loan, $83.06 for flyers for a picnic, and $280.00 for two tables for a luncheon/debate at the Miami Lakes Chamber of Commerce. Count2: On or about January 10, 2003, Respondent violated Section 106.07(5), Florida Statutes, by certifying to the correctness of a CTR that was incorrect, false, or incomplete, when she failed to include the full name and address of the vendor and the amount, date, and purpose for each check written to a vendor, and when she incorrectly reported on her Q4 report $707.35 misc. expense reimbursement to herself. Count 3: On or about January 10, 2002, Respondent violated Section 106.141 (8), Florida Statutes, when the Respondent failed to file timely with the filing officer her office account reports due on January 10, 2002. Count 4: On or about April 10, 2002, Respondent violated Section 106.141 (8), Florida Statutes, when the Respondent failed to file timely with the filing officer her office account reports due on Faa004 (7104) 2
April 10, 2002. Count 5: On or about July 10, 2002, Respondent violated Section 106.141(8), Florida Statutes, when the Respondent failed to file timely with the filing officer her office account reports due on Julyl 0, 2002. Count 6: On or about August 22, 2002, Respondent violated Section 106.141 (8), Florida Statutes, by certifying to the correctness of her office account reports that were incorrect, false, or incomplete when the report failed to disclose a $400.00 deposit to the office account on August 3, 2001, revealed an incorrect amount of the expenditure to "Costco" on October 16, 2001, and failed to reveal an expenditure to Respondent on November 14, 2001 for $325.09 to close the account. Respondent timely requested an informal hearing and was noticed to appear before the Commission on November 17, 2004. At the informal hearing, the staff presented the undisputed facts contained in the Statement of Findings. The Respondent and her attorney appeared at the hearing. FINDINGS OF FACT 1. The Respondent, Nancy Simon, is a councilwoman for Group 6 in the Town of Miami Lakes, Florida. Respondent was first elected to office on February 27, 2001; she was reelected to office on October 8, 2002. The Complainant was a local activist; she was not a candidate for public office. 2. Respondent's termination report for the period covering October 4, 2002, through January 6, 2003, shows an expenditure to Respondent in the amount of $707.35 on December 30, 2002, for the purpose of "Misc. expenses reimbursement." Respondent failed to include the full name and address of the vendor and the amount, date, and purpose for each check written to a vendor on her termination report. Section 106.021(3), Florida Statutes (2003), allowed an Faa004 (7 /04) 3
individual to be reimbursed for travel, food and beverages, office supplies, and campaign mementos if the expenditures were reported pursuant to Section 106.07(4), Florida Statutes. That section requires reporting the amount, date, and purpose for each expenditure made by the individual for which he was reimbursed. Effective July 1, 2004, and operating retroactively to January 1, 2002, Section 106.021(3), Florida Statutes (2004), permits a candidate to be reimbursed for any expenses incurred in connection with the campaign. The amended statute also provides that after July 1, 2004, the full name and address of each person to whom the candidate made payment for which reimbursement was made shall be reported pursuant to Section 106.07( 4), Florida Statutes, together with the purpose of such payment. 3. Respondent had designated an office account on April 26, 2001. Pursuant to Section 106.141(8), Florida Statutes, she was required to file forms, DS-DE 48, "OFFICE ACCOUNT REPORT," and DS-DE 48A, "OFFICE ACCOUNT DISBURSEMENT OR DEPOSIT INFORMATION," on the tenth day following the end of each calendar quarter until the account was closed. A report should have been filed on January 10, 2002, April 10, 2002, and another report should have been filed on July 10, 2002, but none of these reports were filed until August 22, 2002. 4. There were discrepancies between Respondent's office account report for the period covering July 1, 2001, through September 30, 2001, and the bank records. Respondent's bank records disclosed a $400 deposit to the office account on August 3, 2001, that is not reflected in the office account report. The final reporting period, October 1, 2001, through December 31, 2001,, revealed two discrepancies. Respondent reported an expenditure to "Costco" on October 16, 2001, in the amount of $106.13; however, bank records revealed a check issued to "Costco" on October 16, 2001, in the amount of $181.04. Additionally, Respondent's bank records revealed an expenditure to "Nancy Simon" on November 14, 2001, F aa004 (7104) 4
in the amount of $325.09 "to close account." This expenditure was not reflected in the office account report. According to the bank records, all funds in the office account had been dispensed by November 15, 2001, as opposed to the date of October 16, 2001, which was reflected on the office account report CONCLUSIONS OF LAW 5. The Commission has jurisdiction over the parties to and subject matter of this cause, pursuant to Section 106.26, Florida Statutes. 6. The Respondent committed three counts of violating Section 106.141 (8), Florida Statutes, when she failed to file timely with the filing officer her office account reports due on January 10, 2002, April 10, 2002, and July 10, 2002; and Respondent committed one count of violating Section 106.141(8), Florida Statutes, when she failed to disclose a $400.00 deposit to the office account on August 3, 2001, revealed an incorrect amount of the expenditure to "Costco" on October 16, 2001, and failed to reveal an expenditure to Respondent on November 14, 2001 for $325.09 to close the account. 7. Due to the amendment to Section 106.021(3), Florida Statutes, and its retroactive application, Respondent did not violate Section 106.021(3) or Section 106.07(5), Florida Statutes. 8. In determining the amount of the civil penalty, the Commission considered the mitigating and aggravating circumstances set forth in Section 106.265, Florida Statutes. 9. Respondent's actions were willful. Respondent was provided with a "Municipal Candidate Packet," which includes the 2002 Candidate Handbook on Campaign Financing and Chapter 106, Florida Statutes. Respondent chose to open and maintain an office account after her initial election. The requirements for reporting were clearly stated in the 2002 Candidate Handbook. Faa004 (7/04) 5
ORDER WHEREFORE the Commission finds that Respondent has violated the following provisions of Chapter 106, Florida Statutes, and imposes the following fines: A) Respondent violated Section 106.141(8), Florida Statutes, on three occasions for failure to timely file her office account reports. Respondent is fined $100 for each of the three counts for a total of $300 B) Respondent violated Section 106.141 (8), Florida Statutes, on one occasion for certifying that an office account report was correct when it was incorrect or false. Respondent is fined $100 for that count. C) Respondent did not violate Section 106.021(3) or Section 106.07(5), Florida Statutes. Therefore, it is ORDERED that the Respondent shall remit a civil penalty in the amount of $400. 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 the Respondent. DONE AND ENTERED by the Florida Elections Commission and filed with the Clerk of the Commission on December 3, 2004, in Tallahassee, Florida. Chance Irvine, Chairman Florida Elections Commission Faa004 (7 /04) 6
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. Copies furnished to: Charles Finkel, General Counsel Nancy Simon, Respondent (certified mail) Mark Herron, Attorney for Respondent (certified mail) Angela Garrison, Complainant Miami Lakes Town Clerk, Filing Officer Faa004 (7/04) 7