01-003652 Florida Elections Commission vs. Arlene Schwartz Status: Closed Recommended Order on Thursday, January 31, 2002.

Summary: Respondent accused of violating Section 104.31(1)(a), Florida Statutes, found not guilty.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA ELECTIONS COMMISSION, )

)

Petitioner, )

)

vs. ) Case No. 01 - 3652

)

ARLENE SCHWARTZ, )

)

Respondent. )

)

RECOMMENDED ORDER

On November 13, 2001, a formal administrative hearing was

held in this case in Fort Lauderdale, Florida, before Jeff B.

Clark, Administrative Law Judge, Division of Administrative

Hearings.

APPEARANCES

For Petitioner: Eric M. Lipman, Esquire

Florida Elections Commission

107 West Gaines Street

Collins Building, Suite 224

Tallahassee, Florida 32399 - 1050

For Respondent: J. David Bogenschutz, Esquire

Bo genschutz & Dutko

600 South Andrews Avenue

Suite 500

Fort Lauderdale, Florida 33301 - 2802

STATEMENT OF THE ISSUES

Whether Respondent, Arlene Schwartz, willfully violated

Subsection 104.31( 1)(a), Florida Statutes, which prohibits an

officer or employee of the state, or of any county or

municipality, from using his or her official authority or

influence for the purpose of interfering with an election or a

nomination of office, or coercing or influencing another

person's vote or affecting the results thereof.

PRELIMINARY STATEMENT

On March 7, 2001, Petitioner, Florida Elections Commission

(Commission), received a sworn complaint alleging that

Respondent, Arlene Schwartz, violated Chapter 104, F lorida

Statutes. On June 22, 2001, after an investigation, the

Commission staff recommended finding probable cause that

Respondent violated Subsection 104.31(1)(a), Florida Statutes.

On August 7, 2001, the Commission issued an Order of Probable

Cause fin ding probable cause to believe Respondent violated

Subsection 104.31(1)(a), Florida Statutes.

On August 30, 2001, Respondent, through counsel, filed a

Petition for Formal Hearing and on September 17, 2001, the

Division of Administrative Hearings received t he case for

assignment of an Administrative Law Judge to conduct a formal

hearing. On October 5, 2001, the case was set for final hearing

in Fort Lauderdale, Florida, on November 13 through 15, 2001.

At the final hearing held on November 13, 2001, the

Com mission presented three witnesses: Keith Smith, a Commission

investigator; Debra Thomas, City Clerk, City of Margate,

Florida; and Iris Siple, Chief Administrator to the Clerk of

Court, Broward County, Florida. The Commission introduced three

exhibits in evidence, numbered Exhibits 1, 2, and 3.

Respondent presented seven witnesses: Eugene Steinfeld,

City Attorney, City of Margate, Florida; Lori Parrish, County

Commissioner, Broward County, Florida; Howard Forman, Clerk of

Court, Broward County, Florida; John Borden - Kircher; Jack Tobin;

Robert Crawford; and Respondent, herself. Respondent offered

five exhibits numbered exhibits 1 through 5 which were received

in evidence.

The Transcript of Proceedings, which bears the Court

Stenographer's Certificate date d December 9, 2001, was filed

with the Division of Administrative Hearings on January 11,

2002; the parties requested and received leave to the submit

proposed recommended orders on or before January 11, 2002. Both

parties timely filed Proposed Recommende d Orders.

FINDINGS OF FACT

Based on the testimony and demeanor of the witnesses,

documentary evidence, entire Transcript of Proceedings, and the

facts admitted in the Joint Pre - hearing Stipulation, the

following findings of fact are made:

1. Respondent, A rlene Schwartz, as Mayor of the City of

Margate, Florida, was a municipal officer on October 27, 2000,

when she wrote a letter signed by her as Mayor, Margate,

Florida, on official City of Margate stationery, endorsing

Howard Forman for Clerk of Court, Bro ward County, Florida.

Respondent has 10 years of experience as a candidate, elected

official or member of municipal boards.

2. Eugene Steinfeld was City Attorney, City of Margate,

for 24 years; as such he gave advice to the Mayor and

Commissioners of t he City of Margate about their

responsibilities under the Florida Ethics Code and Elections

Laws.

3. In 1994, in his capacity as City Attorney,

Mr. Steinfeld authored a City of Margate Resolution which

authorized the Mayor, Vice Mayor and City Commission ers "to use

a facsimile of the official seal of the City of Margate in

correspondence, promotion, or advertising when they are

promoting the City of Margate. . . ."

4. On January 24, 2000, in his capacity as City Attorney,

Mr. Steinfeld sent an inter - offi ce memorandum to Respondent and

others advising "there is no prohibition for endorsing a

candidate for City Commission by another candidate for City

Commission . . . ; it is only where a candidate expends money

for another candidate or contributes things o f value to another

candidate that is prohibited, pursuant to FS. 104.071."

5. In September 2000, Mr. Steinfeld had a conversation

with Respondent wherein she asked if she would be permitted to

endorse a candidate for a board position in a development

dis trict. In advising her that she could, he recalled saying,

"You do not lose your freedom of speech when you become an

elected official."

6. On October 23, 2000, Respondent attended a meeting of

the Margate Democratic Club where Howard Forman, a candidate for

Clerk of Court, Broward County, spoke. As a State Senator,

Mr. Forman had assisted the City of Margate even though Margate

was not in his Senate District. Respondent orally endorsed

Mr. Forman at the meeting and offered her assistance.

7. On Octo ber 25, 2000, Respondent's office received a

telephone call from Iris Siple who worked in Mr. Forman's

campaign. Respondent returned the call on October 26, 2000, and

was asked to write a letter endorsing Mr. Forman on city

stationery. The letter was wri tten on October 27, 2000, and

later faxed to Mr. Forman's campaign headquarters.

8. Mr. Forman's campaign reproduced the letter and mailed

approximately 700 copies to potential voters. Respondent

received no remuneration or benefit for writing the endo rsement

letter.

9. Respondent acknowledged that she had no specific

discussion with the City Attorney regarding the appropriateness

of using city stationery in the endorsement letter.

Nevertheless, she believed that writing the endorsement letter

was s omething that she could do without violating the law.

Based on the evidence presented, including the resolution

allowing the use of the seal in correspondence promoting the

city, the memorandum and advice given by the City Attorney, and

her reliance on th e request made by Mr. Forman's campaign office

for a letter on city stationery, the undersigned finds that

Respondent's belief that she had done nothing inappropriate in

writing the endorsement letter to be credible.

CONCLUSIONS OF LAW

10. The Division of Administrative Hearings has

jurisdiction over the parties and the subject matter in this

case. Subsections 106.25(5) and 120.57(1), and Section 120.569,

Florida Statutes.

11. The Commission in its Order of Probable Cause asserts

that: "Respondent viola ted Section 104.31(1)(a), Florida

Statutes, prohibiting an officer or employee of the state, a

county, or a municipality from using his official authority or

influence for the purpose of interfering with an election,

interfering with a nomination for offic e, coercing or

influencing another person's vote, or affecting the results of

an election on one occasion."

12. Section 104.31, Florida Statutes, reads as follows:

Political activities of state, county, and

municipal officers and employees. –

(1) No officer or employee of the state,

or of any county or municipality thereof,

except as hereinafter exempted from

provisions hereof, shall:

(a) Use his or her official authority or

influence for the purpose of interfering

with an election or a nominati on of office

or coercing or influencing another person's

vote or affecting the result thereof.

* * *

The provisions of this section shall not

be construed so as to prevent any person

from becoming a candidate for and actively

campaigning for an y elective office in this

state. All such persons shall retain the

right to vote as they may choose and to

express their opinions on all political

subjects and candidates. The provisions of

paragraph (a) shall not be construed so as

to limit the politica l activity in a

general, special, primary, bond, referendum,

or other election of any kind or nature, of

elected officials or candidates for public

office in the state or of any county or

municipality thereof; . . .

* * *

(3) Nothing contained in this section or

in any county or municipal charter shall be

deemed to prohibit any public employee from

expressing his or her opinions on any

candidate or issue or from participating in

any political campaign during the employee's

off - duty hours, so lo ng as such activities

are not in conflict with the provisions of

subsection (1) or s. 110.233.

13. Subsection 106.265(1), Florida Statutes, reads as

follows:

(1) The commission is authorized upon the

finding of a violation of this chapter or

chapter 104 to impose civil penalties in the

form of fines not to exceed $1,000 per

count. In determining the amount of such

civil penalties, the commission shall

consider, among other mitigating and

aggravating circumstances:

(a) The gravity of the act or omi ssion;

(b) Any previous history of similar acts

or omissions;

(c) The appropriateness of such penalty

to the financial resources of the person,

political committee, committee of continuous

existence, or political party; and

(d) Whether the person, political

committee, committee of continuous

existence, or political party has shown good

faith in attempting to comply with the

provisions of this chapter or chapter 104.

14. Subsection 106.25(3), Florida Statutes, reads as

follows:

(3) For the pur poses of commission

jurisdiction, a violation shall mean the

willful performance of an act prohibited by

this chapter or chapter 104 or the willful

failure to perform an act required by this

chapter or chapter 104.

15. Section 106.37, Florida Statutes, r eads as follows:

A person willfully violates a provision of

this chapter if the person commits an act

while knowing that, or showing reckless

disregard for whether, the act is prohibited

under this chapter, or does not commit an

act while knowing that, or showing reckless

disregard for whether, the act is required

under this chapter. A person knows that an

act is prohibited or required if the person

is aware of the provision of this chapter

which prohibits or requires 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 of this

chapter.

16. The burden of proof, absent a statutory directive to

the contrary, is on the party asserting the affirmative of the

issue in the proceeding. Department of Banking and Finance v.

Osborne Stern and Company , 670. So. 2d 932, 934 (Fla. 1996);

Department of Transportation v. J.W.C. Company, Inc. , 396 So. 2d

778 (Fla. 1st DCA 1981); and Balino v. Department of Health and

Rehabilitative Services , 348 So. 2d 349 (Fla. 1st DCA 1977).

17. While Subsection 106.265(1), Florida Statutes,

authorizes a $1,000 civil penalty per "count," the Order of

Probable Cause, which is the charging document in this case,

does not contain "counts." Instead, it contains a single

par agraph which alleges that there is probable cause to believe

that Respondent violated Subsection 104.31(1)(a), Florida

Statutes, on one occasion. Therefore, Respondent faces a

potential civil penalty of $1,000 if the Commission proves its

case. In additi on to the civil penalty, the ruinous effect of a

determination that a political official has violated the Florida

Elections Law has on an individual's reputation for personal

integrity makes the penalty in this case punitive and penal in

nature.

18. Su bsection 120.57(1)(j), Florida Statutes, reads as

follows:

(1) Additional Procedures Applicable to

Hearings Involving Disputed Issues of

Material Fact. –

* * *

(j) Findings of fact shall be based upon

a preponderance of the evidence, except in

penal or licensure disciplinary proceedings

or except as otherwise provided by statute,

and shall be based exclusively on the

evidence of record and on matters officially

recognized.

19. In addition, existing case law establishes that the

Commission has the burden of proving by clear and convincing

evidence that Petitioner willfully violated Subsection

104.31(1)(a), Florida Statutes. Department of Banking and

Finance v. Osborne Stern and Company , 670 So. 2d 932 (Fla.

1996); Ferris v. Turlington , 510 So. 2d 292 (Fla. 1987); Latham

v. Florida Commission on Ethics , 694 So. 2d 83 (Fla. 1st DCA

1997).

20. As noted by the Florida Supreme Court:

[C]lear and convincing evidence requires

that the evidence must be found to be

credible; the facts to which the witne sses

testify must be distinctly remembered; the

testimony must be precise and explicit and

the witnesses must be lacking in confusion

as to the facts in issue. The evidence must

be of such weight that it produces in mind

of the trier of fact a firm belief or

conviction, without hesitancy, as to the

truth of the allegations sought to be

established.

In re Davey , 645 So. 2d 398, 404 (Fla. 1994), quoting Slomowitz

v. Walker , 429 So. 2d 797, 800 (Fla. 4th DCA 1983).

21. Respondent authored an endorsemen t letter on City of

Margate stationery using her appropriate title, Mayor. In

performing this activity, she was aware of a municipal

resolution allowing the use of the city seal to promote the City

of Margate and she believed that the endorsed candidate w ould

promote the City of Margate as he had done in the past; she was

aware of a memorandum from the City Attorney, who was her legal

advisor on Florida Elections Law, that it was appropriate for

her to endorse other candidates; several weeks before this

in cident, she had specifically discussed endorsement of a

candidate with the City Attorney and had been advised that her

political rights to free expression had not been diminished

because she was an elected official; and, in good faith, had

relied on a requ est from the campaign staff of a seasoned and

highly - regarded candidate for an endorsement on city stationery.

There is no demonstration of knowledgeable or reckless

commission of an act prohibited or required by the Florida

Elections Law. Respondent cle arly had a "good faith" belief

that the endorsement letter was appropriate and not in violation

of the Florida Elections Law.

RECOMMENDATION

Based upon the foregoing Findings of Facts and Conclusions

of Law, it is

RECOMMENDED that the Florida Elections Co mmission enter a

final order finding that Respondent, Arlene Schwartz, did not

violate Subsection 104.31(1)(a), Florida Statutes, as alleged

and dismissing the Order of Probable Cause.

DONE AND ENTERED this 31st day of January, 2002, in

Tallahassee, Leon C ounty, Florida.

___________________________________

JEFF B. CLARK

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675 SUNCOM 278 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 31st day of January, 2002.

COPIES FURNISHED :

J. David Bogenschutz, Esquire

Bogenschutz & Dutko

600 South Andrews Avenue

Suite 500

Fort Lauderdale, Florid a 33301 - 2802

Eric M. Lipman, Esquire

Florida Elections Commission

107 West Gaines Street

Collins Building, Suite 224

Tallahassee, Florida 32399 - 1050

Barbara M. Linthicum, Executive Director

Florida Elections Commission

107 West Gaines Street

Collins Bu ilding, Suite 224

Tallahassee, Florida 32399 - 1050

Patsy Rushing, Clerk

Florida Elections Commission

107 West Gaines Street

Collins Building, Suite 224

Tallahassee, Florida 32399 - 1050

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.