05-001352 Florida Elections Commission vs. Thomas L. Wills, Jr. Status: Closed Recommended Order on Friday, December 2, 2005.

Summary: Petitioner failed to prove by clear and convincing evidence that Respondent used his authority to influence the votes of subordinate police officers or to affect the Palm Beach sheriff`s election.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA ELECTIONS COMMISSION, )

)

Petitioner, )

)

vs. ) Case No. 05 - 1352

)

THOMAS L. WILLS, JR., )

)

Respondent. )

_________________________________)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case

on Augus t 10 and 11, 2005, with the parties appearing by video

teleconference in West Palm Beach, Florida, before Patricia M.

Hart, the duly - designated Administrative Law Judge of the

Division of Administrative Hearings, who presided in

Tallahassee, Florida.

APPEA RANCES

For Petitioner: Eric M. Lipman, Esquire

Florida Elections Commission

Collins Building, Suite 224

107 West Gaines Street

Tallahassee, Florida 32399 - 1050

For R espondent: G. Hal Johnson, Esquire

Florida Police Benevolent

Association, Inc.

Post Office Box 11239

Tallahassee, Florida 32301

STATEMENT OF THE ISSUE

Whether th e Respondent committed the violations alleged in

the Order of Probable Cause entered March 4, 2005, and, if so,

the penalty that should be imposed.

PRELIMINARY STATEMENT

In an Order of Probable Cause entered March 4, 2005, the

Florida Elections Commission ("FEC") notified Thomas L. Wills,

Jr., a lieutenant with the City of West Palm Beach Police

Department, that it had found probable cause to charge him with

two violations of Florida's election laws. In Count 1, the FEC

alleged that Lieutenant Wills asked employees under his

supervision to attend a political rally for Ric Bradshaw, a

candidate for Palm Beach County Sheriff; in Count 2, the FEC

alleged that Lieutenant Wills threatened a police officer

because the officer had, a week earlier, made a comment about

joining a group of Bradshaw's opponents at the rally. In both

Counts 1 and 2 of the Order of Probable Cause, the FEC charged

that Lieutenant Wills had used "his official authority or

influence for the purpose of attempting to coerce or influence

ano ther persons' vote or affecting the results of an election,"

in violation of Section 104.31(1)(a), Florida Statutes (2003). 1

Lieutenant Wills timely filed an Amended Petition for Formal

Administrative Hearing Involving Disputed Issues of Fact, and

the FEC transmitted the petition to the Division of

Administrative Hearings for assignment of an administrative law

judge.

The final hearing was held on August 10 and 11, 2005. The

FEC presented the testimony of Officer Paul Creelman,

Lieutenant Wills, Captain M aria Olsen, and Captain Allen Wesley

Ortman; Petitioner's Exhibits 9 through 11 were offered and

received into evidence. Lieutenant Wills testified in his own

behalf, and Respondent's Exhibits 12 through 15 were offered and

received into evidence. In add ition, Joint Exhibits 1 through 7

and 16 through 24 were offered and received into evidence. 2

Joint Exhibits 16 through 24 consist of the transcripts of the

depositions of Sergeant Joseph Luciano, Sergeant John Kelly,

Sergeant Louis Peneque, Officer Bryan Williams, Officer Ronald

Robbins, Lieutenant Daniel Sargent, Captain Brett Patterson,

Sergeant John Riddle, and Officer Kevin Harrell. The deposition

transcripts were offered and received in lieu of the live

testimony of these witnesses. Finally, offici al recognition was

given to the Order of No Probable Cause entered by the FEC in a

case involving William McCray, FEC 04 - 214; the Order of No

Probable Cause entered by the FEC in a case involving Calvin

Bryant; and the Final Order of the FEC in Florida Ele ctions

Commission v. John J. Fugate , DOAH Case No. 04 - 1178

(February 19, 2005).

The two - volume transcript of the proceedings was filed with

the Division of Administrative Hearings on September 7, 2005.

The parties timely filed proposed findings of fact an d

conclusions of law, and these proposals have been considered in

the preparation of this Recommended Order.

FINDINGS OF FACT

Based on the oral and documentary evidence presented at the

final hearing, the stipulation of the parties, and on the entire

reco rd of these proceedings, the following findings of fact are

made:

1. The FEC is the statutory entity that is responsible for

investigating complaints and enforcing Florida's election laws,

Chapters 104 and 106, Florida Statutes. See § 106.25, Fla.

Stat.

2. Lieutenant Wills has been employed by the West Palm

Beach Police Department for approximately 23 years and has

served as a lieutenant for approximately three years.

3. At the time he was promoted to lieutenant,

Lieutenant Wills was serving as the p res ident of the West Palm

Beach Police Benevolent Association, Inc. ("PBA"), which is a

police union for officers, sergeants, and lieutenants employed

by the West Palm Beach Police Department. Lieutenant Wills

resigned this position when he was promoted. In May 2004, the

time material to this proceeding, Lieutenant Wills served as a

representative to the PBA.

4. In May 2004, Lieutenant Wills worked the night shift,

from 5:00 p.m. to 6:30 a.m. He supervised a uniformed patrol

squad of 10 - to - 12 police office rs and two sergeants. The squad

was divided into two units; the first night - shift unit began

work at 5:00 p.m., and the second night - shift unit began work at

7:00 p.m. Sergeant Riddle supervised the first night - shift

unit, and Sergeant Kapper supervised the second night - shift

unit, under Lieutenant Wills's command.

5. The police officers in Lieutenant Wills's squad were

required to attend a briefing or "line - up" before they began

their patrol or other duties. During the line - up, the officers

were briefe d on arrest information, bulletins, training, work

assignments, and other employment - related matters. The

briefings were conducted by Sergeant Kelly, an administrative

sergeant who was not under the direct supervision of

Lieutenant Wills. Lieutenant Will s often participated with

Sergeant Kelly in conducting the briefings for his squad.

6. Officers in the first night - shift unit went on duty at

5:00 p.m., and the briefing for this shift began promptly at

5:00 p.m.; an officer was considered late for work i f he or she

arrived in the briefing room after 5:00 p.m.

7. The officers in Lieutenant Wills's first night - shift

unit routinely began congregating in the briefing room 15 or

20 minutes before the 5:00 p.m. briefing began. They watched

television; talked about many different topics, including

politics; and generally interacted informally until briefings

began at 5:00 p.m.

8. When a police officer was on the police department

premises, the officer was expected to obey a direct order from a

superior officer , even if he or she was not on duty. If an

officer was given an order by a superior officer to carry out

work - related duties prior to the beginning of his or her shift,

the officer was eligible for overtime pay for the time spent

performing these work - rel ated duties. An off - duty officer was

not, however, expected to obey anything but a direct order from

a superior officer.

9. In an e - mail dated May 4, 2004, Sergeant Peneque, who

was the president of the PBA, advised that the PBA planned to

endorse Ric Br adshaw, a former chief of the West Palm Beach

Police Department, as a candidate for Palm Beach County Sheriff

and that the endorsement would be announced at a press

conference to be held on May 25, 2004. Sergeant Peneque related

in the e - mail that the "ch ief" was asking that the members of

the police department support him by coming to the press

conference. Sergeant Peneque sent this e - mail out on the West

Palm Beach Police Department "Lotus notes" e - mail system, and it

appeared on all of the police depar tment computers.

10. The PBA routinely sent e - mails regarding union

business through the police department e - mail system, and the

information was generally disseminated to the assembled police

officers prior to the start of shift briefings.

11. On May 10 , 2004, about 10 or 15 minutes before the

beginning of the briefing for the 5:00 p.m. shift, Sergeant

Kelly read Sergeant Peneque's e - mail to the officers who had

congregated in the briefing room. There were about five or six

officers present at that time , and few of them indicated to

Sergeant Kelly that they would attend the Bradshaw rally.

Sergeant Kelly was upset by this lackluster response and made

several remarks to the officers in the briefing room to the

effect that they should support "Chief" Brad shaw, that Bradshaw

had hired most of them, and that they should show their loyalty

by supporting his candidacy for sheriff.

12. Lieutenant Wills came into the briefing room in time

to hear Sergeant Kelly's remarks about the lack of support for

the Bradsh aw candidacy, between 5 and 10 minutes before 5:00

p.m. By that time, more officers had assembled in the briefing

room. Before the 5:00 p.m. briefing began, Lieutenant Wills

read the PBA e - mail to the officers in the briefing room.

Lieutenant Wills aske d how many officers planned to attend the

Bradshaw rally. Lieutenant Wills was disappointed when only a

few officers indicated that they were going to attend the rally,

and he said something to the effect that "Chief" Bradshaw had

done a lot for the West Palm Beach Police Department. 3

13. A police officer named Paul Creelman spoke up when

Lieutenant Wills told the assembled officers about the Bradshaw

rally, after one of the officers in the briefing room made a

remark that a group of anti - Bradshaw officer s were planning to

show up for the rally. Officer Creelman remarked , "What time do

they get there." 4 Officer Creelman meant his remark as a joke.

14. At the time he made the remark, Officer Creelman was

sitting in the back of the briefing room; he was e avesdropping

on the discussion between Lieutenant Wills and the officers at

the front of the briefing room but was not one of the officers

engaged in the discussion with Lieutenant Wills.

15. Lieutenant Wills heard Officer Creelman's remark, but

he did no t respond to the remark. He went on to discuss other

matters.

16. In May 2004, Officer Creelman was assigned to the

Neighborhood Enhancement Team ("NET"). Officer Creelman and the

other NET officers were not members of Lieutenant Wills's squad

and atten ded the 5:00 p.m. briefing as guests, primarily to

gather officer safety information. Sergeant Luciano was the

sergeant in charge of the night - shift NET officers, and

Lieutenant Sargent supervised Sergeant Luciano and the NET

officers. Lieutenant Wills h ad no direct supervisory authority

over Officer Creelman.

17. Officer Creelman was present at the 5:00 p.m. briefing

for Lieutenant Wills's squad on May 17, 2004. During the

briefing, Sergeant Kelly discussed problems that the squad was

having with offic ers abusing sick leave by calling in sick when

they wanted a few days off. Lieutenant Wills joined the

discussion, and he was emphatic that he would not tolerate the

abuse of sick leave by the officers in his squad because it left

the squad short - handed a nd caused safety concerns.

Lieutenant Wills discussed the police department's policies

regarding sick leave, and, at one point, Lieutenant Wills stated

that he had been the president of the PBA; that he knew how

things worked; and that he would "fuck over " anyone who "fucked"

with him about sick leave.

18. Officer Creelman interjected a comment under his

breath, saying "That's sad." 5 Lieutenant Wills asked Officer

Creelman to repeat his comment, and Officer Creelman did so.

Lieutenant Wills demanded to know what Officer Creelman meant by

the remark, and Officer Creelman told Lieutenant Wills that he

considered his comment about using what he had learned as PBA

president against his subordinate officers to be inappropriate.

19. Lieutenant Wills was angry about Officer Creelman's

remark and told Sergeant Luciano that he wanted to see him and

Officer Creelman in his office after the briefing. When Officer

Creelman and Sergeant Luciano came into his office,

Lieutenant Wills expressed his anger about what he considered

Officer Creelman's derogatory and disrespectful conduct towards

him during the briefing. Lieutenant Wills told Officer Creelman

that he did not want him "mouthing off" during his squad's

briefing and that he thought Officer Creelman was a "sma rt

aleck. " To make the point that the incident on May 17, 2004,

was not the first time Officer Creelman had "smarted off" to

him, Lieutenant Wills told Officer Creelman that he had not

forgotten his remark about the anti - Bradshaw rally.

Lieutenant Wills then told Officer Creelman and Sergeant Luciano

to leave his office.

20. According to Officer Creelman, the reason

Lieutenant Wills called him into his office was to address

Officer Creelman's conduct in making inappropriate comments

during the briefing o f Lieutenant Wills's squad. 6 Officer

Creelman described Lieutenant Wills's manner during the time he

was in Lieutenant Wills's office as "normal" and stated that

Lieutenant Wills spoke in a low tone of voice. 7

21. In a memorandum dated May 18, 2004, to A ssistant Chief

Van Reeth, Officer Creelman set out his version of the events

that took place on May 10, 2004, regarding Lieutenant Wills's

discussion of the Bradshaw rally; his version of

Lieutenant Wills's conduct during the May 17, 2004, briefing;

and hi s version of the meeting in Lieutenant Wills's office on

May 17, 2004. 8 In the May 18, 2004, memorandum, Officer Creelman

requested permission to speak with Assistant Chief Van Reeth and

the Chief of Police "so that we can all resolve this matter."

22. O n May 21, 2004, Officer Creelman filed a complaint

against Lieutenant Wills regarding "the manner in which the

Lieutenant spoke to officers in briefing." Officer Creelman's

complaint was that Lieutenant Wills used "inappropriate

language." A copy of Offi cer Creelman's May 18, 2004,

memorandum was attached to the complaint form.

23. Captain Olsen conducted the investigation of Officer

Creelman's complaint against Lieutenant Wills, and she concluded

that Lieutenant Wills used inappropriate language during the

May 17, 2004, briefing when discussing the abuse of sick leave

by members of his squad. Lieutenant Wills was disciplined for

this misconduct with a verbal reprimand documented in his

personnel file.

24. Captain Olsen concluded after her investigation that

Lieutenant Wills read the PBA e - mail before the May 10, 2004,

briefing began, when Lieutenant Wills and the police officers he

supervised were off duty. Because of this, Captain Olsen

concluded that Lieutenant Wills did not violate any of the rules

or policies of the West Palm Beach Police Department with

respect to his remarks about the Bradshaw rally.

25. Neither Lieutenant Wills nor any other member of the

West Palm Beach Police Department is expected to enforce

Florida's election laws as part of their duties as police

officers, and no training with respect to the provisions of

Florida's election laws is provided for police officers by the

West Palm Beach Police Department or the Florida Department of

Law Enforcement. Lieutenant Wills is not fami liar with the

provisions of Florida's election laws in his professional

capacity as a law enforcement officer.

26. Lieutenant Wills has never run for public office or

served as a committee chair, a committee treasurer, or a

campaign treasurer for a candid ate in a municipal, county, or

state political campaign. Lieutenant Wills is not familiar with

the provisions of Florida's election laws in his personal,

individual capacity.

27. Lieutenant Wills was provided with a copy of the rules

and regulations of t he West Palm Beach Police Department, and he

was aware in May 2004 that it was against the police

department's rules and regulations for an officer to engage in

or discuss political activities during work hours.

28. Notwithstanding this policy, Bradshaw's candidacy for

Palm Beach County Sheriff generated a lot of interest among the

police officers and was a topic of general discussion at the

police department, even when officers were on duty, because

Bradshaw had been the Chief of the West Palm Beach Polic e

Department until he retired in early 2004.

Summary

29. The evidence presented by the FEC is not sufficient to

establish with the requisite degree of certainty that

Lieutenant Wills willfully used his supervisory position,

authority, or influence for th e purpose of coercing or

influencing the vote of any of the officers present during the

discussion of Bradshaw's candidacy before the May 10, 2004,

briefing or of affecting the result of the election for Palm

Beach County Sheriff.

30. The evidence present ed reflects that none of the

officers present in the briefing room prior to the May 10, 2004,

briefing had a clear memory of the specific statements made by

Lieutenant Wills, and the evidence is not sufficiently

persuasive to support a finding of fact that Lieutenant Wills

told the police officers assembled in the briefing room that

they should support Bradshaw's candidacy for sheriff or that

they should attend the Bradshaw rally. It cannot reasonably be

inferred from the evidence presented that Lieutenant Wills's

purpose in reading the PBA e - mail or in making the statement to

the officers that Bradshaw had done a lot for the West Palm

Beach Police Department was to coerce or influence anyone

present in the briefing room to attend the Bradshaw rally, to

vot e for Bradshaw, or to effect the results of the election for

sheriff. 9

31. Even if the evidence were sufficient to support a

finding that Lieutenant Wills's purpose was to coerce or

influence the officers to attend the Bradshaw rally or to

support or vote for Bradshaw for sheriff, the evidence presented

by the FEC is not sufficient to support a finding that

Lieutenant Wills was aware that his actions violated Florida's

elections laws or that he acted in disregard of the law.

Evidence that Lieutenant Wills knew that the West Palm Beach

Police Department rules and regulations prohibited him from

engaging in political activities while on duty is not sufficient

to support an inference that Lieutenant Wills should have been

on notice that he should consult Flor ida's election laws prior

to reading the PBA e - mail or making any remarks about Bradshaw's

candidacy for sheriff.

32. Finally, the evidence presented by the FEC is not

sufficient to support a finding that Lieutenant Wills's purpose

in telling Officer Cree lman on May 17, 2004, that he remembered

his remark about the anti - Bradshaw rally was to coerce or

influence Officer Creelman's vote for sheriff or the affect the

result of the election for sheriff. It is uncontroverted that

Lieutenant Wills's purpose in calling Officer Creelman and

Sergeant Luciano into his office on May 17, 2004, was to talk to

Officer Creelman about his making disrespectful comments during

the briefings of Lieutenant Wills's squad, and it cannot

reasonably be inferred from the evidence presented that

Lieutenant Wills's purpose in reminding Officer Creelman of his

remark was other than to illustrate Lieutenant Wills's point

that Officer Creelman had been disrespectful during briefings on

more than one occasion.

CONCLUSIONS OF LAW

33. Th e Division of Administrative Hearings has

jurisdiction over the subject matter of these proceedings and of

the parties pursuant to Sections 120.569 and 120.57(1), Florida

Statutes (2005).

34. Section 104.31, Florida Statutes, provides in

pertinent part:

( 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 nomin ation of office

or coercing or influencing another person's

vote or affecting the result thereof.

35. On its face, Section 104.31(1)(a), Florida Statutes,

requires proof that a public employee (1) "use his or her

official authority or influence"; (2) "fo r the purpose of"; (3)

"interfering with an election" or "coercing or influencing

another person's vote" or "affecting the result" of an election.

Section 106.25(3), Florida Statutes, adds an additional element

to the proof required to establish a violati on of

Section 104.31(1)(a), Florida Statutes. Section 106.25(3),

Florida Statutes, provides: "For the purposes of commission

jurisdiction, a violation shall mean the willful performance of

an act prohibited by this chapter or chapter 104 or the willful

f ailure to perform an act required by this chapter or chapter

104."

36. "Willful performance of an act" is defined in

Section 106.37, Florida Statutes, which provides:

A person willfully violates a provision of

this chapter if the person commits an act

whi le 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

a ct 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 pe rson 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.

The defin ition of "willful" found in Section 106.37, Florida

Statutes, applies to violations of Section 104.31, Florida

Statutes.

37. The FEC has the burden of proving by clear and

convincing evidence that Lieutenant Wills violated

Section 104.31(1)(a), Florida St atutes. See Diaz de la Portilla

v. Florida Elections Commission , 857 So. 2d 913 (Fla. 3d DCA

2003).

38. In Evans Packing Co. v. Department of Agriculture and

Consumer Services , 550 So. 2d 112, 116, n. 5 (Fla. 1st DCA

1989), the court explained:

[C]l ear and convincing evidence

requires that the evidence must be found to

be credible; the facts to which the

witnesses testify must be distinctly

remembered; the evidence 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 the mind of the trier of fact

the firm belief of conviction, without

hesitancy, as to the truth of the

allegations sought to be established.

Slomowitz v. Walker , 429 So. 2d 797, 800

(Fla. 4th DCA 1983).

Judge Sharp, in her dissenting opinion in Walker v. Florida

Department of Business and Professional Regulation , 705 So. 2d

652, 655 (Fla. 5th DCA 1998)(Sharp, J., dissenting), reviewed

various pronouncements on clear and convincing ev idence and

observed:

Clear and convincing evidence requires more

proof than preponderance of evidence, but

less than beyond a reasonable doubt. In re

Inquiry Concerning a Judge re Graziano ,

696 So. 2d 744 (Fla. 1997). It is an

intermediate level of pr oof that entails

both qualitative and quantative [sic]

elements. In re Adoption of Baby E.A.W. ,

658 So. 2d 961, 967 (Fla. 1995), cert.

denied , 516 U.S. 1051, 116 S. Ct. 719, 133

L. Ed. 2d 672 (1996). The sum total of

evidence must be sufficient to convin ce the

trier of fact without any hesitancy. Id.

It must produce in the mind of the trier of

fact a firm belief or conviction as to the

truth of the allegations sought to be

established. Inquiry Concerning Davie , 645

So. 2d 398, 404 (Fla. 1994).

39. Ba sed on findings of fact herein, the FEC has failed

to prove by clear and convincing evidence that Lieutenant Wills

willfully used his authority as a police lieutenant for the

purpose of influencing another person's vote in the election for

Palm Beach Count y Sheriff or for the purpose of affecting that

election either in his remarks before the briefing on May 10,

2004, or in his remark to Officer Creelman during the meeting in

Lieutenant Wills's office on May 17, 2004.

RECOMMENDATION

Based on the foregoing F indings of Fact and Conclusions of

Law, it is RECOMMENDED that the Florida Elections Commission

enter a final order dismissing in its entirety the Order of

Probable Cause entered against Thomas L. Wills on March 4, 2005.

DONE AND ENTERED this 2nd day of De cember, 2005, in

Tallahassee, Leon County, Florida.

S

___________________________________

PATRICIA M. HART

Administrative Law Judge

Divi sion 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 2nd day of December , 2005.

ENDNOTES

1 / All references to the Florida Statutes herein are to the 2003

edition unless otherwise indicated.

2 / It is noted that all of the exhibits received into evidence

in this case, except for the d eposition transcripts, were

consecutively numbered by the parties and included in a single

notebook. For ease in handling the record, the exhibits have

been separated into Joint Exhibits, Petitioner's Exhibits, and

Respondent's Exhibits.

3 / Lieutenant W ills's testimony regarding his remarks about the

Bradshaw rally is credited. A careful review of the evidence

reveals that none of the witnesses precisely and distinctly

remembered the sequence of events that occurred before the

May 10, 2004, briefing or the statements Lieutenant Wills made

during the discussion relating to Bradshaw's candidacy.

Sergeant Kelly read the PBA e - mail before Lieutenant Wills

entered the briefing room. By his own admission, Sergeant Kelly

made several strongly worded comments about the loyalty that the

police officers owed to Bradshaw, but his testimony indicated

that he did not distinctly remember Lieutenant Wills's specific

comments. In addition, the persuasiveness of the testimony of

other officers who attributed to Lieuten ant Wills the comments

that Bradshaw hired them and that they should support Bradshaw's

candidacy is significantly diminished because these officers did

not appear to distinguish between the comments made by Sergeant

Kelly and the comments made by Lieutena nt Wills.

4 / Transcript at page 94.

5 / Transcript at page 89.

6 / Transcript at page 107.

7 / Transcript at page 91.

8 / The FEC offered Officer Creelman's May 18, 2004, memorandum

into evidence as Petitioner's Exhibit 10. Lieutenant Wills

objected on the grounds that the memorandum was hearsay and that

the contents of the memorandum were irrelevant to the issues

presented in the Order of Probable Cause. After hearing

argument from counsel and requesting a written memorandum on the

issue of whether the memorandum would be admissible over

objection in a civil proceeding, the undersigned received the

memorandum into evidence subject to the limitations on the use

of hearsay in Section 120.57(1)(c), Florida Statutes, which

provides: "Hearsay evidence m ay be used for the purpose of

supplementing or explaining other evidence, but it shall not be

sufficient in itself to support a finding unless it would be

admissible over objection in civil actions."

The FEC argued in its Proposed Recommended Order t hat the

memorandum was admissible over a hearsay objection in a civil

action because the statements attributed to Lieutenant Wills by

Officer Creelman in the memorandum fell within exceptions to the

general rule that hearsay is inadmissible. S ee § 90.802, Fla.

Stat. The FEC argued that the statements were admissions by

Lieutenant Wills; that the statements were excited utterances on

the part of Lieutenant Wills; and that the statements were

statements by Lieutenant Wills relating to his mental,

emotional, or physical condition. The FEC's arguments that the

statements attributed by Officer Creelman to Lieutenant Wills in

the memorandum are admissible as exceptions to the hearsay rule

are, however, rejected.

It is apparent from the discussion of counse l regarding the

admissibility of Petitioner's Exhibit 10 ( see transcript at

pages 79 - 83), the arguments made by the FEC in its Proposed

Recommended Order, and the testimony elicited from Officer

Creelman that the FEC's intent in introducing the memorandum

into evidence was to prove that Lieutenant Wills uttered the

statements attributed to him, not that the statements were true.

The statements attributed to Lieutenant Wills in the memorandum

do not, therefore, constitute hearsay because hearsay is defined

in Section 90.801, Florida Statutes, as "a statement, other than

one made by the declarant while testifying at the trial or

hearing, offered in evidence to prove the truth of the matter

asserted ." (Emphasis added.)

There is, however, an additional c onsideration with respect

to the admissibility of Petitioner's Exhibit 10 over a hearsay

objection. The memorandum itself is an out - of - court statement

made by Officer Creelman that the FEC offered to prove that the

matters asserted in the memorandum are t rue, that is, that

Lieutenant Wills made the statements and conducted himself in

the manner attributed to him in the memorandum. To be

considered in this proceeding as independent evidence of the

matters asserted in the memorandum, the memorandum must fal l

within an exception to the hearsay rule. This issue has not

been addressed by the FEC, but it would appear that the only

exception to the hearsay rule that could possibly apply is the

exception relating to recorded recollections.

Section 90.803, F lorida Statutes, provides that the

following is one type of out - of - court statement that is not

inadmissible as hearsay:

(5) RECORDED RECOLLECTION. -- A memorandum or

record concerning a matter about which a

witness once had knowledge, but now has

insuffici ent recollection to enable the

witness to testify fully and accurately,

shown to have been made by the witness when

the matter was fresh in the witness's memory

and to reflect that knowledge correctly. A

party may read into evidence a memorandum or

record when it is admitted, but no such

memorandum or record is admissible as an

exhibit unless offered by an adverse party.

In this case, the FEC failed to prove the predicate to the

admissibility of the memorandum because it did not establish

that Officer Cre elman had insufficient recollection of the

events in May 2004 to testify "fully and accurately" to the

incidents recorded in the memorandum. Furthermore, the

memorandum itself is not admissible into evidence pursuant to

Section 90.803(5), Fla. Stat., beca use it was not offered by

Lieutenant Wills, the adverse party.

Even though the memorandum would not be admissible over

objection in a civil action, Section 120.57(1)(c), Florida

Statutes, only prohibits the use of the memorandum as

independent suppor t for a finding of fact. The contents of the

memorandum can, however, be considered if the matters asserted

in the memorandum supplement or explain other, non - hearsay

evidence in the record of this proceeding. In this respect, the

material acts and state ments attributed to Lieutenant Wills in

the memorandum are not supported by other evidence in the

record.

Even if the May 18, 2004, memorandum were admissible over

objection in a civil action and could itself form the basis for

a finding of fact, the memorandum has virtually no evidentiary

value in this proceeding because the memorandum lacks

credibility in all material respects: Officer Creelman's

testimony at the hearing was inconsistent in a number of

particulars with the assertions he made in the memorandum;

Officer Creelman's testimony regarding Lieutenant Wills's

comments about Bradshaw and the rally was equivocal and prefaced

by "I believe" and "he said something to the effect of," despite

having been asked several times during his testimony to read and

re - read portions of the May 18, 2004, memorandum; and Officer

Creelman wrote the memorandum because he believed that

Lieutenant Wills had reported "the incident" to Assistant Chief

Van Reeth.

9 / None of the police officers who were present in t he briefing

room before the May 10, 2004, briefing and whose testimony was

presented as evidence in this proceeding felt that his or her

decision to support or not support Bradshaw was affected by

Lieutenant Wills's comments.

COPIES FURNISHED:

Eric M. Lipman, Esquire

Florida Elections Commission

Collins Building, Suite 224

107 West Gaines Street

Tallahassee, Florida 32399 - 1050

G. Hal Johnson, Esquire

Florida Police Benevolent

Association, Inc.

Post Office Box 11 239

Tallahassee, Florida 32301

Barbara M. Linthicum, Executive Director

The Collins Building, Suite 224

107 West Gaines Street

Tallahassee, Florida 32399 - 1050

Patsy Rushing, Clerk

The Collins Building, Suite 224

107 West Gaines Street

Tallahassee, Flor ida 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 R ecommended O rder. Any exceptions

to this R ecommended O rder should be filed with the agency that

will issu e the F inal O rder in this case.