08-000138 Florida Elections Commission vs. Susan Valliere Status: Closed DOAH Final Order on Tuesday, June 30, 2009.

Summary: Petitioner proved two counts of report violations against candidate and one count of same against campaign treasurer who also served as chair of political committee supporting candidate for which they are fined $2000 and $1000, respectively.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA ELECTIONS COMMISSION, )

)

Petitioner, )

)

vs. ) Case No. 08-0138

)

SUSAN VALLIERE, )

)

Respondent. )

________________________________)

FLORIDA ELECTIONS COMMISSION, )

)

Petitioner, )

)

vs. ) Case No. 08-0140

)

A. JAMES VALLIERE, )

)

Respondent. )

________________________________)

CORRECTED FINAL ORDER

Robert E. Meale, Administrative Law Judge of the Division

of Administrative Hearings, conducted the final hearing in

Stuart, Florida, on January 12-16, 2009.

APPEARANCES

For Petitioner: Charles A. Finkel, General Counsel

Eric M. Lipman, Assistant General Counsel

Florida Elections Commission

107 West Gaines Street

Collins Building, Suite 224

Tallahassee, Florida 32399-1050

For Respondent Susan Valliere:

Mark Herron, Esquire

Messer, Caparello & Self, P.A.

2618 Centennial Place

Tallahassee, Florida 32308

For Respondent A. James Valliere:

A. James Valliere, pro se

79 South River Road

Stuart, Florida 34996

STATEMENT OF THE ISSUES

The issues are whether either Respondent committed

violations of Chapter 106, Florida Statutes, and, if so, what

penalties should be imposed.

PRELIMINARY STATEMENT

By Order of Probable Cause entered November 30, 2007,

Petitioner found probable cause that Respondent Susan Valliere

(Ms. Valliere) committed 28 violations of Chapter 106, Florida

Statutes.

Count 1 alleges that, on July 26, 2006, Ms. Valliere

violated Section 106.07(5), Florida Statutes, by failing to

certify the correctness of the amended campaign treasurer's

report for 2006 Q2. Count 2 alleges that, on August 31, 2006,

Ms. Valliere violated Section 106.07(5), Florida Statutes, by

failing to certify the correctness of the campaign treasurer's

report for 2006 F3.

Counts 3-28 allege violations of Section 106.19(1)(a),

Florida Statutes, when Ms. Valliere accepted 26 contributions in

excess of the legal limit by accepting specifically identified

contributions on given dates from the Citizens Committee of

Martin County (CCMC) in the form of its payments to third

parties. For example, Count 3 alleges that, on April 10, 2006,

Ms. Valliere accepted an in-kind contribution of $1166.41 from

CCMC, which paid this sum by check to Ampersand Graphics.

By Order of Probable Cause entered November 30, 2007,

Petitioner found probable cause that Respondent A. James

Valliere (Mr. Valliere) committed 83 violations of Chapter 106,

Florida Statutes.

Count 1 alleges that, on September 6, 2006, Mr. Valliere

violated Section 106.07(5), Florida Statutes, by certifying to

the correctness of CCMC's campaign treasurer's report for F3

2006 when it omitted a $1325 expenditure to Ampersand Graphics

and a $689 expenditure to Craig's Design. Count 2 alleges that,

on September 25, 2006, Respondent violated Section 106.07(5),

Florida Statutes, by certifying to the correctness of CCMC's

campaign treasurer's report for G1 2006 when it incorrectly

reported an expenditure of $464.30 to Peggy Hart for the

Reimbursement Rally and omitted the full name and address of

each person to whom the expenditure was made with the amount,

date, and purpose of the expenditure.

Counts 3-28 allege violations of Section 106.08(1), Florida

Statutes, when Mr. Valliere made contributions in excess of $500

per election by making in-kind contributions to Ms. Valliere's

campaign from CCMC to third parties. For example, Count 3

alleges that, on April 10, 2006, Mr. Valliere made a

contribution in excess of $500 per election when he made an in-

kind contribution of $1166.41 from CCMC to Ms. Valliere's

campaign when CCMC paid this sum to Ampersand Graphics.

Counts 29-54 allege violations of Section 106.19(1)(a),

Florida Statutes, when Mr. Valliere accepted in-kind

contributions in excess of the legal limit when, on behalf of

Ms. Valliere's campaign, he accepted in-kind contributions from

CCMC when it paid third parties. For example, Count 29 alleges

that, on April 10, 2006, Mr. Valliere accepted a contribution in

excess of the legal limit when he accepted an in-kind

contribution of $1166.41 from CCMC for the campaign when CCMC

paid this sum to Ampersand Graphics.

Counts 55-80 allege violations of Section 106.19(1)(b),

Florida Statutes, when, on behalf of Ms. Valliere's campaign,

Mr. Valliere failed to report contributions when he accepted in-

kind contributions from CCMC when it paid third parties. For

example, Count 55 alleges that, on April 10, 2006, Mr. Valliere

accepted a contribution required to be reported when he accepted

an in-kind contribution of $1166.41 from CCMC for the campaign

when CCMC paid this sum to Ampersand Graphics.

Count 81 alleges that, in July 2006, Mr. Valliere violated

Section 106.143(1)(b), Florida Statutes, when he published a

political advertisement for CCMC without identifying the address

of the sponsor. Count 82 alleges that, in July 2006,

Mr. Valliere violated Section 106.143(1)(b), Florida Statutes,

when he published a political advertisement for CCMC without

identifying the address of the sponsor.

Count 83 alleges that, on May 13, 2005, Mr. Valliere

violated Section 106.19(1)(c), Florida Statutes, by falsely

reporting on CCMC's Statement of Organization of Political

Committee that Robert Lennon was a member of the committee.

Respondents filed motions to dismiss based on amendments to

Section 106.25(2), Florida Statutes, and a claim of a resulting

lack of jurisdiction by Petitioner to investigate these matters.

On February 6, 2008, the Administrative Law Judge issued a

detailed order, which granted the motion to dismiss Counts 2 and

81-83 against Mr. Valliere.

By Order of Consolidation entered January 22, 2008, the

Administrative Law Judge consolidated the two cases.

At the hearing, Petitioner called 11 witnesses,

Mr. Valliere called 10 witnesses, and Ms. Valliere called no

witnesses. The exhibits were admitted as shown in the

transcript.

The court reporter filed the Transcript on February 11,

2009. The parties filed proposed final orders on March 18,

2009.

FINDINGS OF FACT

1. Ms. Valliere is a county commissioner for Martin

County. She was first elected in the fall of 2002 and re-

elected in the fall of 2006. The case against her involves the

primary campaign for the 2006 election, which was held on

September 5, 2006. She won this race and faced no opposition in

the general election.

2. Mr. Valliere is the husband of Ms. Valliere. He has a

law degree from the University of Chicago. After graduating

from law school, he worked as a patent lawyer in Chicago for

15-20 years before joining a private company in Iowa engaged in

the manufacture of computer products. Mr. Valliere served for

several years as vice-president and general counsel of this

small company. He is not a member of The Florida Bar and no

longer practices law.

3. In 1988, Mr. and Ms. Valliere, who had been working as

a paralegal for the same Iowa computer-product manufacturer,

moved to Stuart, combining their families from previous

marriages. Mr. Valliere essentially retired, although he

attended to some personal litigation after arriving in Florida.

Ms. Valliere raised the children and assisted Mr. Valliere in

the litigation with which he was involved. As the children

aged, Ms. Valliere set up a small business, with which

Mr. Valliere assisted.

4. After the children had grown, Ms. Valliere entered

local politics, running for a seat on the county commission in

2002. She and her husband had no prior experience in these

matters, but Ms. Valliere drew on community support to aid in

her effort, and she successfully unseated the incumbent. For

two months during the summer of 2002, Ms. Valliere served as the

treasurer of her campaign, but she eventually found someone else

to assume these duties, although their official roles remained,

respectively, treasurer and deputy treasurer.

5. In October 2002, due to problems with their

relationship, Ms. Valliere began to live apart from

Mr. Valliere, although they are still married. After this

separation, persons initiated litigation concerning

Ms. Valliere's actual residence, and she formed a trust to fund

her legal costs in defending the litigation. In connection with

this defense, Ms. Valliere retained local attorneys, Virginia

Sherlock and Howard Heims. Approximately 250 supporters

contributed $20,000 to $25,000 to Ms. Valliere's legal-defense

fund, which was administered by three trustees, none of whom was

Mr. Valliere. During the course of the litigation, Mr. Valliere

voluntarily performed legal research for use by Ms. Sherlock,

with whom he met frequently to discuss the case.

6. Ms. Valliere prevailed in the residency litigation, and

she later prevailed in an abuse-of-process action against the

persons who had initiated the earlier litigation. This resulted

in a cash settlement in May 2005. Ms. Valliere was prepared to

return the funds to the 250 contributors to the legal-defense

fund, but Mr. Valliere saw this as an opportunity to fund

Ms. Valliere's re-election campaign.

7. Ms. Valliere was unsure whether she would run for re-

election, but did not stop Mr. Valliere from soliciting the

contributors to her legal-defense fund. However, she secured

his promise that, if she did not run for re-election,

Mr. Valliere would return all of the money.

8. In May 2005, Mr. Valliere formed the political

committee, CCMC. Mr. Valliere then contacted the contributors

to the legal-defense fund, and 150 of them agreed to allow their

contributions to be transferred to CCMC. After this, CCMC

received small amounts of money until Mr. Valliere actively

solicited funds. Overall, CCMC raised and spent about $34,000,

as compared to about $86,000 raised and spent by Ms. Valliere's

political campaign.

9. Mr. Valliere appointed himself as the chair and

treasurer of CCMC, whose sole purpose was to promote the re-

election of Ms. Valliere in the 2006 election. He also named a

finance committee, which never met. For all purposes,

Mr. Valliere was the sole means through which CCMC acted; he

raised funds, completed and filed reports, and made arrangements

with vendors for the production of campaign products. About the

only thing that Mr. Valliere did not do for CCMC was computer

design work.

10. In September 2005, tension emerged between Mr. and

Ms. Valliere concerning CCMC and Ms. Valliere's plans. As

Ms. Valliere explained, she did not finally decide to run until

she filed the papers the following April. The tension arose

from two sources: her feeling that Mr. Valliere's efforts were

premature and his attempt to force her to run and her concern

that, if she did run, her campaign and Mr. Valliere's political

committee would be competing for the same funds. The latter

point proved an issue, as potential contributors felt that they

had already contributed to Ms. Valliere's campaign if they had

already given to Mr. Valliere's political committee.

11. At this time, Ms. Valliere wrote Mr. Valliere a note

that complained that he was pressuring her to run, and she

wanted the CCMC money, which had been obtained from the legal

defense fund contributors, returned to the contributors.

Shortly after delivering this note, Ms. Valliere had an argument

with Mr. Valliere about this matter and did not speak to him for

at least three weeks, although they agreed at least that CCMC

would return the money if Ms. Valliere chose not to run. In

October 2005, Mr. and Ms. Valliere had lunch, and she told him

he could do what he wanted with CCMC, and she would do what she

wanted to do with her political campaign.

12. Mr. Valliere admits to being controlling and

manipulative. These admissions are accepted and will largely

suffice for purposes of this Final Order. The relationship

between Mr. and Ms. Valliere from April through August 2006 is

the pivotal issue for the myriad campaign finance violations

alleged in these cases. Mr. Valliere obviously tries to control

and manipulate, prompting persons dealing with him to document

discussions with him. He is intense, hyperactive, apparently

accustomed to getting his own way, and likely relentless in

bending exchanges or transactions to conform to his will or

understanding.

13. In general, the likelihood of a firewall between a

husband and wife, so as to preclude attributing the acts and

omissions of the husband to the wife, may be low, but the

determination depends on the facts of a given case. Here, it is

a particularly complex determination because the period in

question may not be representative of the longer relationship

that has existed between Mr. and Ms. Valliere. It is also a

complex determination because, as Mr. Sorenson described the

Vallieres' relationship during the campaign, it was "weird," a

"love-hate thing."

14. However, two credible, independent witnesses confirm

that, in April and late June, Ms. Valliere was upset to the

point of tears with her husband about relationship issues that

transcended mere differences in whether or how she would run for

re-election to a seat on the county commission. Nothing in the

record suggests a reconciliation in the ensuing two months, so

as to provide a firmer basis on which to infer coordination

between the political campaign and the political committee. To

the contrary, from Ms. Valliere's perspective, as she testified

during her deposition, she decided to go it alone and handle her

campaign pretty much herself.

15. After spending many hours in hearing with

Mr. Valliere, the Administrative Law Judge finds it highly

likely that, at various times during the campaign, Ms. Valliere

was fed up with him, aggravated with him, and estranged from

him. It is equally unlikely that Mr. Valliere would be deterred

by Ms. Valliere's feelings about his actions, ostensibly on his

wife's behalf. It is impossible to say on this record that it

is likely, but it certainly is plausible, that, except where

directly prohibited or ordered to act, as noted in the few

instances below, Mr. Valliere was obstinately going to attend to

the myriad, detailed tasks that he had set for himself in his

political committee, regardless of his wife's desire, consent,

or even knowledge.

16. In November 2005, Mr. Valliere entered into a contract

with his son, Jonathan, a young adult, who spent considerable

time with Mr. and Ms. Valliere separately, but did most of his

computer design work at Ms. Valliere's condominium, at least

after April 2006. The contract called for Mr. Valliere's son to

perform certain computer design work, for which he has a

recognized talent, on behalf of CCMC, but prohibited him, under

pain of nonpayment, from disclosing any of his work to

Ms. Valliere. The work was for large signs, yard signs, vehicle

banners, and billboard banners. Over the next couple of months,

Jonathan completed the design work, by the agreed-upon

deadlines, for all of the items.

17. In February and March 2006, Jonathan completed design

work for large campaign signs. Ms. Valliere remained ambivalent

about running, but she attended a candidate training session

during this period. In March 2006, Jonathan completed design

work on small yard signs. In the first week of April, he

completed the design work on a sign proclaiming that

Ms. Valliere supported a controversial local bridge project, but

not advocating the election of Ms. Valliere or defeat of her

opponent.

18. April proved to an eventful month for Mr. and

Ms. Valliere. On April 23, Ms. Valliere filed the materials

necessary to run for re-election, and she designated Kirk

Sorenson as her campaign manager or, with her, co-manager.

19. About ten days earlier, Ms. Valliere hosted

Mr. Valliere and attorneys Sherlock and Heims for a pizza dinner

at her condominium. The purpose of the meeting was mostly to

try to enlist the support of Ms. Sherlock and Mr. Heims for

Ms. Valliere's re-election. During the course of the meeting,

Mr. Valliere showed Ms. Sherlock and Mr. Heims a sign that he

and Jonathan had prepared for the campaign and discussed the

other signs for which Mr. Valliere had assumed responsibility.

20. Mr. Valliere prided himself in his sign work. He was

the first in Martin County to use a sign on material that

stretched over an entire motor vehicle. It does not appear that

his conversation about the signs established coordination

between CCMC and the campaign concerning signs. Design work was

complete, although it could still be changed and little

production had taken place. However, nothing suggests that the

role of Ms. Valliere, while Mr. Valliere proudly described his

work to her guests, was any more than that of a dutiful wife

listening to her husband extol his own virtues at a party.

While it is true that Mr. Valliere's conversation would have

communicated to Ms. Valliere that CCMC's efforts would be

focused on signs, this hardly qualifies as meaningful

coordination for three reasons: first, Mr. Valliere would

likely emphasize signs because he viewed them as his specialty;

second, Mr. Valliere had already begun posting signs around town

and would very soon post many more; and third, Mr. Valliere's

emphasis on signs would have been apparent to Ms. Valliere,

regardless of the pizza party, because Ms. Valliere was taking a

more measured approach to the campaign and had reasonably chosen

to start up promotional activities closer to the primary, while

Mr. Valliere had hit the ground running.

21. It is as likely as not that the sign in her

condominium was actually a point of irritation for Ms. Valliere.

Two or three days before the pizza dinner, Mr. Valliere and

Jonathan had placed 6-12 campaign signs in various locations,

such as a local Wal-Mart, where they could be seen by voters.

They placed one against some bushes in the parking lot of

Ms. Valliere's condominium. When she saw it, she called

Mr. Valliere and, learning of his placement of the other signs,

ordered him, ”Get the damn signs down." Within a few days,

Mr. Valliere and Jonathan removed all of the signs--Jonathan

taking the one by Ms. Valliere's parking spot upstairs into her

condominium where Ms. Sherlock and Mr. Heims later saw it.

22. There is no reason to doubt the Vallieres' version of

this event. Ms. Valliere believed that local voters would

resent a candidate whose signs came out too early, and she was

not fully decided about running again, so she viewed the signs

as an attempt to manipulate her by Mr. Valliere.

23. Starting in mid-to-late April, Ms. Valliere and

Mr. Sorenson met to discuss her campaign. Her 2002 campaign had

involved many volunteers. Although grateful for their efforts,

Ms. Valliere wished to avoid the organizational challenges that

such a grassroots effort presented, so she did not wish to

involve nearly as many volunteers in 2006.

24. In their early meetings at least, Ms. Valliere

expressed her frustration that Mr. Valliere's involvement with

CCMC prevented his participation with her campaign directly.

However, unable to obtain as her treasurer the woman who had

served in that role in the 2002 campaign, and evidently

unwilling to assume the duties again herself, Ms. Valliere

approached Mr. Valliere about serving as the campaign treasurer,

after discussing this matter with Mr. Sorenson. Ms. Valliere

felt that she had no one else available for the position, and

she showed Mr. Sorenson a copy of the statute, discussed below,

that permits one person to serve in the campaign and a political

committee.

25. After initially expressing reluctance about his

ability to serve both entities, Mr. Valliere studied the statute

that expressly permits such dual service and agreed to do so,

limiting himself, at least initially, to checking the post

office box daily for checks, making deposits, writing checks,

preparing reports, and similar administrative tasks. As he had

done with his son, so he did with his wife: Mr. Valliere drew

up a contract for him and his wife that would confirm that his

campaign duties would be ministerial. Mr. Valliere agreed with

Ms. Valliere and Mr. Sorenson that the statute would allow him

to serve as the campaign treasurer as long as he did not get

involved in substantive decisionmaking for the campaign.

26. Ms. Valliere and Mr. Sorenson discussed campaign

issues, particularly how to raise money. They concentrated on

direct mailing with some newspaper ads to solicit funds. Much

of the work of Ms. Valliere and Mr. Sorenson involved his review

of her ideas, presented in the form of sketches and text for

various types of campaign literature and ads. Mr. Sorenson

would make suggestions about language and graphics, such as

photographs, to be used in ads or campaign literature. They

then used Jonathan to produce on his computer finished ad copy,

which Ms. Valliere and Mr. Sorenson would then revise, until

they agreed upon the final form.

27. When discussing signs, in June, Ms. Valliere and

Mr. Sorenson agreed that yard signs would not be needed until

about one month prior to the primary election. They worked on a

sign design, which featured a yellow background, which

contrasted with the blue background on the signs produced by

CCMC. However, by early July, Ms. Valliere and Mr. Sorenson saw

the CCMC signs that were appearing all over the county, so they

decided not to produce any signs. CCMC enlisted the aid of

local firefighters who had volunteered their time to place about

150 of the large signs and 500 of the yard signs throughout the

county. Although the brunt of their effort resulting in sign

deployment in mid to late July, signs were placed in the county

prior to that time.

28. Because Mr. Valliere focused his efforts almost

exclusively on signs, this clear allocation of tasks--the

political committee handling the signs, and the political

campaign not using signs--requires close consideration of

whether there was coordination between the political committee

and political campaign. Obviously, Jonathan would have been a

convenient vehicle for communications between the two camps

concerning signs. However, two factors militate against

coordination on this issue. First, Ms. Valliere and

Mr. Sorenson agreed that, as an incumbent, she had name

recognition and did not need to rely as much on yard signs.

Second, according to the testimony of another local political

candidate, who did not use yard signs, local campaigns sometimes

do not use yard signs at all.

29. Overall, Ms. Valliere disapproved of the number of

signs that Mr. Valliere placed throughout the county. In her

discussions with Mr. Sorenson, she consistently stated her

desire to emphasize television and newspapers, rather than yard

signs.

30. The difficulty in describing the relationship of

Mr. and Ms. Valliere, as noted above, extends to trying to

determine the extent to which she could control his actions

during the campaign, which spanned only the months of May, June,

July, and August. As noted above, in early April, before she

filed her papers, she could, and did, order him to remove signs

that he had already placed in public places. At that time, she

had the leverage with Mr. Valliere of possibly deciding not to

run.

31. Two other transactions cast additional light on the

extent to which Ms. Valliere could cause Mr. Valliere to act.

One involves the firefighters, who supported Ms. Valliere due to

her support of firefighting issues during her first term. The

firefighter who testified stated that they decided to support

Ms. Valliere in early June. He then called Ms. Valliere and

offered their customary help in assembling and placing signs.

One to two weeks later, Mr. Valliere called the firefighter and

told them his political committee was handling the signs, and

they must not communicate anything about the signs with

Ms. Valliere. Working with Mr. Valliere, the firefighters

deployed the signs in July.

32. The most likely inference is that Ms. Valliere told

Mr. Valliere to call the firefighters due to their offer to help

with signs. As in the next transaction, Ms. Valliere could have

handled this matter better, such as by telling the firefighters

that her campaign was not going to use signs, but they might

contact CCMC to see if it was. However, for the reasons noted

above in connection with the pizza party, Ms. Valliere already

knew, by means not suggestive of unlawful coordination, that

CCMC was going to do signs, so a mere mention of the

firefighters' offer to her husband, while suggestive of

coordination, does not establish the level of coordination that

robs the political committee's expenditures of their independent

status.

33. The other transaction arises from a home meeting on

July 24, 2006, of political candidates and persons traditionally

involved in local politics and community issues. Someone asked

Ms. Valliere about the placement of her signs in proximity to

the signs of another candidate--evidently, given the politics of

the other candidate, the physical proximity implied a

philosophical proximity with which Ms. Valliere would be

uncomfortable. Rather than answer the criticism by saying

merely that a political committee had arranged for the placement

of those signs and the questioner could take it up with

Mr. Valliere, Ms. Valliere replied by saying that the

firefighters had erected the signs, but she would speak to

Mr. Valliere and Jonathan about separating them.

34. Ms. Valliere's handling of the sign-proximity issue

suggests, but it remains necessary to analyze the entire

transaction in context. She evidently had the authority to

contact Mr. Valliere and tell him to ensure a minimum spacing of

her signs from the signs of other candidates. Her leverage in

this transaction is harder to find than in the initial

transaction, in which she told her husband to take the "damn"

signs down with the implied threat of not filing to run, or in

the next transaction, in which she called to her husband's

attention a potentially serious mistake that he had made with

the design of the signs. However, if a firefighter had placed a

sign in front of a strip club or abortion clinic, Ms. Valliere

could have "coordinated" with Mr. Valliere (i.e., told him to

get those "damn" signs down too) without jeopardizing the

independence of the expenditures of the political committee in

producing and deploying the signs. All of these transactions

describe elements of coordination, but not of such an extent as

to cause the CCMC expenditures to fail the test of independence.

35. The final transaction between Ms. and Mr. Valliere

concerning signs arose in mid to late August. At this time,

Ms. Valliere testified that she first noticed that the CCMC

signs bore the following disclaimer: "Paid Political

Advertisement by Citizens Committee of MC; approved by Susan

Valliere, Republican, District #2." She ordered Mr. Valliere to

fix the signs because she had not approved them. Jonathan seems

to have designed a label that could be placed over the offending

disclaimer, and Mr. Valliere, with the help of local

firefighters, was able to have about 90 percent of the offending

signs, according to Mr. Sorenson, altered to cover up the

disclaimer.

36. Jonathan plausibly claims responsibility for adding

the disclaimer, borrowing it from the signs used in the 2002

campaign, although Mr. Valliere certainly read the sign language

in its entirety prior to production. No evidence suggests that

Ms. Valliere approved the signs, although she had read the signs

once they were placed in the community. They involved her.

They were produced by her husband, with whom she had had sharp

differences over his approach to her campaign. They had been

out in the community for over two months before she voiced her

displeasure with the disclaimer. Ms. Valliere never disapproved

of the disclaimer because, as a matter of fact, she did approve

of the signs--not in advance of their production and placement,

but after they were placed in the community. What changed a

couple of weeks before the election is that, as a matter of law,

she realized that she risked linking her campaign with

Mr. Valliere's political committee by allowing the signs to

contain the offending disclaimer.

37. But accepting the benefits of the products of the

political committee is not coordinating with it. Any candidate

accepts the benefits of the political committee working,

independently, to promote the candidate. On occasion,

Ms. Valliere would wave a sign produced by CCMC or appear at an

event wearing a CCMC-produced T-shirt. Similarly, she could,

without establishing coordination, accept the fruits of the

unrelated labors of her husband and stepson, as she did at the

Stuart's Women's Club in late August 2006, when Mr. Valliere

actively campaigned among the crowd and Jonathan photographed

the event, presumably for promotional purposes. Neither of

these acts, from the perspective of the husband and stepson, had

anything to do with CCMC.

38. In its name, CCMC placed orders with vendors for all

of the political products, such as signs and T-shirts; vendors

invoiced CCMC for all of these items, and CCMC paid these

invoices with CCMC checks. All of these transactions were

completed without the advance knowledge or approval of

Ms. Valliere, directly or indirectly, such as through Jonathan

or Mr. Sorenson. Nor did CCMC pay for any of the obligations of

the political campaign.

39. As campaign treasurer, Mr. Valliere obtained quotes

for the campaign from various vendors, if instructed to do so by

Ms. Valliere. He sometimes served as a communications

intermediary between vendor representatives and Ms. Valliere or

Mr. Sorenson. He even signed off on some proofs of flyers and

direct mailings and became intimately involved in the scheduling

of some promotional products. Although, in such acts,

Mr. Valliere was exercising more than the ministerial authority

of a campaign treasurer, he was not coordinating between the

political committee and the political campaign; he was only

ensuring that the campaign received good value for its

expenditures.

40. Likely to the relief of many, CCMC disbanded on

October 12, 2006.

41. Ms. Valliere wilfully failed to sign and certify as

correct the two campaign treasurer's reports cited in Counts 1

and 2. As noted below in the Conclusions of Law, the wilfulness

requirement applies to certifying an incorrect report. From the

language of the statute, the failure to sign and certify a

report is strict liability, but, in an abundance of caution, the

findings are that Ms. Valliere's failure to sign and certify

both reports was wilful, as in an intentional wrongful act at

the time of the filing of these reports. As defined in the

Conclusions of Law, her failure to sign and certify both reports

was also, in the alternative, an act of conscious culpability.

42. The campaign treasurer report for 2006 Q2 was due on

July 10, 2006, and covered April 1 through June 30, 2006. Due

to a problem in the original report, Mr. Valliere had to file an

amended campaign treasurer's report and did so on July 26, 2006-

without Ms. Valliere's signature because the amended report was

prepared in the office of the Supervisor of Elections.

43. Mr. Valliere testified that he never informed

Ms. Valliere about the amended report and the requirement that

she sign it. This is untrue. First, Ms. Valliere had served as

her own treasurer in the previous election and is well-versed in

the requirements of Chapter 106, Florida Statutes, so she knew

that she had reports due when they were due. Also, a failure to

report the amended report would be out of character for

Mr. Valliere, who takes obvious pride in his attention to

details. He had very little in the way of responsibilities in

the political campaign, and the inference is inescapable that he

informed Ms. Valliere about this problem. In fact, exactly what

he told her is probably revealed by the situation surrounding

the other campaign treasurer's report that is missing

Ms. Valliere's signature.

44. The campaign treasurer's report for 2006 F3 was due on

September 1, 2006. Hurrying out of town on personal business,

Mr. Valliere filed this report, again without Ms. Valliere's

signature. On his trip, he realized that the filed report had

an error in it, so he called Ms. Valliere and instructed her not

to sign the report filed on August 31, but to wait for a three-

day letter from the Supervisor of Elections, as provided by

Section 106.07(2)(b)1, Florida Statutes, which is discussed in

the Conclusions of Law. In the meantime, by regular mail,

Mr. Valliere mailed a corrected report on August 31, but

Ms. Valliere did not sign that one either.

45. On several occasions, the Assistant Supervisor of

Elections for Martin County asked Mr. Valliere to have

Ms. Valliere come in and sign the reports, but Ms. Valliere

never did so until March 2007, after a complaint had been filed.

Ms. Valliere testified that she did not sign and certify the

reports because her husband said she did not have to, but, on

his advice, waited for the three-day letter. Ms. Valliere

admitted that she never asked for this letter until after the

complaint had been filed against her; by then, the Supervisor of

Elections declined to issue the letter.

46. However, this record offers no support for a finding

that Ms. Valliere relied on her husband's advice, but instead

wilfully declined to sign and certify these two reports. By the

time of the second incorrect report that required amendment,

Ms. Valliere had discovered that her husband had made a serious

error in the preparation of the disclaimer on the signs, as well

as two errors that required amending campaign treasurer's

reports. Even without this knowledge, Ms. Valliere would not

have accepted the advice of her husband because she had cut the

strings from her husband during this campaign and was herself

handling the campaign responsibilities. As this fact shields

her from responsibility for dozens of campaign expenditures, so

it exposes her to liability for the two reports that she refused

to sign and certify in an act of wilful disobedience to the law

and, were it not, an act of conscious culpability (again,

assuming that a complete failure to sign and certify a campaign

treasurer's reports, as distinguished from certifying incorrect

reports, even requires a finding of wilfulness).

47. The sole remaining count against Mr. Valliere is

Count 1. The 2006 F3 campaign treasurer's report certified by

Mr. Valliere to be correct omitted $2014 in two expenditures

made during the covered period. Mr. Valliere filed a

handwritten amended report, ostensibly to correct a math error,

but actually intended to conceal the material omission from the

original report, which Mr. Valliere certified was correct when

it was not. Thus, the finding is that Mr. Valliere's false

certification of the correctness of the report was wilful, as in

an intentional wrongful act at the time of the filing of the

report. As defined in the Conclusions of Law, his failure to

sign and certify both reports was also, in the alternative, an

act of conscious culpability.

48. Mr. Valliere knew that the items were missing when he

filed the original report. His certification of correctness of

the original 2006 F3 campaign treasurer's report was wilful and,

were it not, would have been an act of conscious culpability.

Additional evidence of wilfulness and conscious culpability in

connection with this transaction are based on Mr. Valliere's

attempt to conceal the original omission by claiming a

mathematical error, when the actual error was one of omission of

these two items.

49. Among aggravating and mitigating circumstances, the

Administrative Law Judge accepted the parties' stipulation that

findings of the Valliere's finances would present neither an

aggravating nor mitigating circumstance. Also, neither Mr. nor

Ms. Valliere has ever violated any campaign finance law prior to

this case. However, the violations involving campaign

treasurer's reports are serious, as they undermine the reporting

obligations that are the cornerstone of Chapter 106, Florida

Statutes. Ms. Valliere's refusal to sign the two campaign

treasurer's reports, at the time and over the ensuing one and

one-half years, is contumacious, as is Mr. Valliere's role in

this refusal to conform to the requirements of law and his

intentional wrongdoing in connection with the filing violation

of which he has been found guilty. Obviously, neither party

exhibited good faith in trying to comply with the laws that they

have been proved to have violated.

CONCLUSIONS OF LAW

50. The Division of Administrative Hearings has

jurisdiction over the subject matter. §§ 106.25(5), 120.569,

and 120.57(1), Fla. Stat. (2008).

51. Respondents dispute the jurisdiction in this case for

nearly all the counts. They contend that Petitioner lacked

jurisdiction to investigate the complaints underlying Counts

3-28 against Ms. Valliere and Counts 3-80 and 83 against

Mr. Valliere because the complaints were based on hearsay. By

Order entered February 6, 2008, the Administrative Law Judge

dismissed Counts 2, 81, and 82 against Mr. Valliere because they

exceeded the scope of the complaints, dismissed Count 83 because

it was based on Mr. Lennon's hearsay denial of involvement in

the CCMC finance committee that would not likely be admissible,

and denied the remainder of the motion.

52. In contesting the jurisdiction of Petitioner,

Respondents argue that an amendment to Section 106.25(2),

Florida Statutes, limits Petitioner's jurisdiction to

investigate complaints to those "based upon personal information

or information other than hearsay." This is the holding of

Jennings v. Florida Elections Commission , 932 So. 2d 609 (Fla.

2d DCA 2006), so the jurisdictional change was retroactive.

53. The more difficult task is to give meaning to this new

limitation on Petitioner's jurisdiction to investigate

complaints. An agency's interpretation of a statute that it

must apply is given great weight, Arza v. Florida Elections

Commission , 907 So. 2d 604 (Fla. 3rd DCA 2005), but a penal

statute is construed against the agency. Diaz de la Portilla v.

Florida Elections Commission , 857 So. 2d 913 (Fla. 3d DCA 2003),

rev. denied 872 So. 2d 899 (Fla. 2004). A more helpful case on

statutory interpretation is Englewood Water District v. Tate ,

334 So. 2d 626, 628 (Fla. 2d DCA 1976), in which the court

stated:

It is well settled that in construing a

statute the court should consider its

history, evil to be corrected, the intention

of the law-making body, subject regulated

and the object to be obtained. Smith v.

Ryan , Fla.1949, 39 So.2d 281. It is also a

rule of statutory construction that it is

the duty of the court to examine the statute

as a whole in order to determine its meaning

and if the intent of the legislature is

clear and unmistakable from the language

used, it is the court's duty to give effect

to that intent. Rules of statutory

construction should be used only in case of

doubt and should never be used to create

doubt, only to remove it. State v. Egan,

Fla.1973, 287 So.2d 1, and Scenic Hills

Utility Company v. City of Pensacola,

Fla.App.1st 1963, 156 So.2d 874. It was

held in State v. Sullivan, 1928, 95 Fla.

191, 116 So. 255, at page 261:

. . . In statutory construction

legislative intent is the pole

star by which we must be guided,

and this intent must be given

effect even though it may appear

to contradict the strict letter

of the statute and well settled

canons of construction. The

primary purpose designated

should determine the force and

effect of the words used in the

act and no literal

interpretation should be given

that lends to an unreasonable or

ridiculous conclusion or a

purpose not designed by the

lawmakers.

54. The purpose of the new limitation on Petitioner's

jurisdiction was to raise the bar on what complaints would spawn

an investigation of a candidate for elective office. Few, if

any, meritorious prosecutions would be lost by a prohibition

against an investigation based on a report from a customer in a

barbershop who overheard another customer complain to his barber

that Candidate X is wilfully circumventing Florida's campaign

finance law. On the other hand, many meritorious prosecutions

would be lost by a construction of the new prohibition that bars

Petitioner from investigating a complaint from Candidate X's

neighbor, to whom the candidate admitted that he wilfully

violated Florida's campaign finance law.

55. Of course, the Legislature is free to choose to deny

Petitioner investigatory jurisdiction of the latter case, in

which Candidate X admits to another person that the candidate

has wilfully violated the law. The point of statutory

construction is not to engage in some form of remedial

lawmaking, but to ensure that subsequent interpretations of the

actual legislation do not force upon the Legislature a policy

choice that it likely did not make when enacting the subject

legislation.

56. Respondents argue that the new statutory prohibition

bars all hearsay-based complaints, but do not claim that the

complaints concerning the campaign treasurer's reports are

subject to dismissal on this ground. However, those reports are

hearsay, just as is a candidate's out-of-court statement

admitting that he wilfully violated the campaign finance laws.

Section 90.801(1)(c), Florida Statutes, defines "hearsay" 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." But Respondents tacitly concede that

the new prohibition was never intended to bar prosecutions

arising from citizen complaints based on campaign treasurer's

reports.

57. The campaign treasurer's reports and the candidate's

admission are distinguishable from the overheard barber shop

conversation. The reports and admission will be admissible

because they are well-established exceptions to hearsay--Section

90.803(6) and (18), Florida Statutes--but the barber shop

conversation will not be admissible because it is not an

exception to hearsay. The distinction in the treatment of these

hearsay statements lies in the levels of their reliability--

exactly what the Legislature was addressing in the new

limitation upon Petitioner's jurisdiction. Interestingly,

Respondents' failure to challenge Petitioner's jurisdiction as

to the campaign treasurer's reports implies acceptance of the

necessity of two sources of hearsay to the complaint: the

report itself and underlying financial information, such as bank

records, invoices, and canceled checks--all admissible hearsay

under Section 90.801(6), Florida Statutes--to prove that

statements in the campaign treasurer's reports are incorrect.

58. Superficially appealing, Respondents' interpretation

of the new statutory limitation on Petitioner's jurisdiction

comes dangerously close to rendering the Legislature's attempt

to require more reliability from citizen complaints to a

prohibition against citizen complaints.

59. The better interpretation of the new statutory

limitation preserves the distinction between, on the one hand,

hearsay that will never be admissible--e.g., the overheard

barber shop conversation--and, on the other hand, hearsay that,

by itself, is admissible--e.g., the admission of the candidate--

or will likely be admissible--e.g., with the testimony of a

records custodian, the campaign treasurer's report, as provided

by Section 90.806(6)(a), Florida Statutes. This interpretation,

distinguishing between admissible hearsay and inadmissible

hearsay, governs the acceptance of affidavits in summary-

judgment practice under Rule 1.510, Florida Rules of Civil

Procedure, which requires that affidavits be based on "personal

knowledge [and] shall set forth such facts as would be

admissible in evidence . . .." Courts have construed this or

similar language to exclude inadmissible hearsay, Department of

Financial Services v. Associated Industries Insurance Company,

Inc. , 868 So. 2d 600 (Fla. 1st DCA 2004), but not hearsay that

will later prove admissible at trial. Ham v. Heintzelman's

Ford, Inc. , 256 So. 2d 264 (Fla. 4th DCA 1971) (motor vehicle

certificate of title attached to affidavit, which would later be

admissible as public record, considered in ruling on motion for

summary judgment).

60. Section 106.07(1), (2), and (5), Florida Statutes,

provides, in relevant part:

(1) Each campaign treasurer designated by a

candidate or political committee pursuant to

s. 106.021 shall file regular reports of all

contributions received, and all expenditures

made, by or on behalf of such candidate or

political committee. Reports shall be filed

on the 10th day following the end of each

calendar quarter from the time the campaign

treasurer is appointed, except that, if the

10th day following the end of a calendar

quarter occurs on a Saturday, Sunday, or

legal holiday, the report shall be filed on

the next following day which is not a

Saturday, Sunday, or legal holiday.

Quarterly reports shall include all

contributions received and expenditures made

during the calendar quarter which have not

otherwise been reported pursuant to this

section.

(2)(a)1. All reports required of a

candidate by this section shall be filed

with the officer before whom the candidate

is required by law to qualify. All

candidates who file with the Department of

State shall file their reports pursuant to

s. 106.0705. Except as provided in

s. 106.0705, reports shall be filed not

later than 5 p.m. of the day designated

. . ..

* * *

(b)1. Any report which is deemed to be

incomplete by the officer with whom the

candidate qualifies shall be accepted on a

conditional basis, and the campaign

treasurer shall be notified by registered

mail as to why the report is incomplete and

be given 3 days from receipt of such notice

to file an addendum to the report providing

all information necessary to complete the

report in compliance with this section.

Failure to file a complete report after such

notice constitutes a violation of this

chapter.

2. In lieu of the notice by

registered mail as required in subparagraph

1., the qualifying officer may notify the

campaign treasurer by telephone that the

report is incomplete and request the

information necessary to complete the

report. If, however, such information is

not received by the qualifying officer

within 3 days after the telephone request

therefore, notice shall be sent by

registered mail as provided in subparagraph

1.

* * *

(5) The candidate and his or her campaign

treasurer, in the case of a candidate, or

the political committee chair and campaign

treasurer of the committee, in the case of a

political committee, shall certify as to the

correctness of each report; and each person

so certifying shall bear the responsibility

for the accuracy and veracity of each

report. Any campaign treasurer, candidate,

or political committee chair who willfully

certifies the correctness of any report

while knowing that such report is incorrect,

false, or incomplete commits a misdemeanor

of the first degree, punishable as provided

in s. 775.082 or s. 775.083.

61. Respondents contend that the filing violation cannot

occur until after the expiration of the three days following

written notice, by registered mail, from the qualifying officer,

as specified in Section 106.07(2)(b)1, Florida Statutes. Under

this theory, persons covered by Section 106.07(5), Florida

Statutes, are not required to certify the correctness of each

report until after three days following receipt of certified

mail notifying them that the report is incomplete or unfiled.

62. This contention misconstrues the cited portions of

Section 106.07, Florida Statutes. The cited provisions require

timely filed reports with the obligatory certifications. If the

qualifying officer receives incomplete or no reports, the cited

provisions require the filing of complete reports within three

days after written notice, by registered mail, from the

qualifying officer. The failure to file a timely report, the

failure to include the required certifications, and the failure

to file a complete report within three days after written notice

are separate violations.

63. All this is clear in Section 106.07(8)(d), Florida

Statutes, which states:

The appropriate filing officer shall notify

the Florida Elections Commission of the

repeated late filing by a candidate or

political committee, the failure of a

candidate or political committee to file a

report after notice, or the failure to pay

the fine imposed. The commission shall

investigate only those alleged late filing

violations specifically identified by the

filing officer and as set forth in the

notification. Any other alleged violations

must be separately stated and reported by

the division to the commission under

s. 106.25(2).

64. An officer is required to notify Petitioner of

repeated late filings of reports or the failure to file a report

after notice; these are separate violations. Jurisdictionally,

the mere fact of late filing requires "repeated" incidents

before Petitioner may acquire jurisdiction to investigate;

inferentially, this statute imposes no such requirement when a

third party complains of a single late filing. Either way,

though, contrary to Respondents' arguments, the written notice

does not serve as a condition precedent to an alleged violation

of an untimely filing or, here, a filing that omitted a required

certification.

65. Section 106.08(1)(a), Florida Statutes, provides in

material part:

Except for political parties, no person,

political committee, or committee of

continuous existence may, in any election,

make contributions in excess of $500 to any

candidate for election to or retention in

office or to any political committee

supporting or opposing one or more

candidates. . . .

66. Section 106.08(7), Florida Statutes, provides that a

person who "knowingly and willfully" makes or accepts one or

more contributions in excess of the limits of Section 106.08(1)

commits a criminal violation, and such person, pursuant to

Section 106.08(8), Florida Statutes, shall pay the state double

the amount of the unlawful contribution.

67. Section 106.19(1)(a) and (b), Florida Statutes,

provides:

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:

(a) Accepts a contribution in excess of

the limits prescribed by s. 106.08; [or]

(b) Fails to report any contribution

required to be reported by this chapter

. . .

* * *

is guilty of a misdemeanor of the first

degree, punishable as provided in s. 775.082

or s. 775.083.

68. Another issue concerning the effective date of recent

statutory amendments arises with respect to the meaning of

"wilful." This word was defined in former Section 106.37,

Florida Statutes, which predicated a violation on a person

committing an act "while knowing that, or showing reckless

disregard for whether, the act is prohibited . . .." The now-

repealed statute added, "A person shows reckless disregard for

whether an act is prohibited or required . . . if the person

wholly disregards the law without making any reasonable effort

to determine whether the act would constitute a violation

. . .."

69. Relying on Metropolitan Dade County v. Chase Federal

Housing Corporation , 737 So. 2d 494 (Fla. 1999), the

Administrative Law Judge ruled that fairness required the

retroactive application of this change to the required state of

mind, so that the repealed statutory definition would not apply

to these cases. See also McGann v. Florida Elections

Commission , 803 So. 2d 763 (Fla. 1st DCA 2001). But see

Adelsperger v. Riverboat , 573 So. 2d 80 (Fla. 2d DCA 1990).

This issue is addressed at greater length in a separate order

issued during the pendency of these proceedings.

70. Giving retroactive effect to the repeal of the

statutory definition of "wilful," the question arises as to the

meaning of this word. Clearly, a knowing act satisfies the

requirement. In County Canvassing Board v. Lester , 96 Fla. 484,

489-90, 118 So. 201, 202-03 (1928), the Florida Supreme Court

stated:

The word "willfull," like many other words

in our language, is elastic and is of

somewhat varied signification according to

the context in which it is found and the

nature of the subject matter to which it

refers. Sometimes "willfully" is used

synonymously with "voluntarily." In

construing statutes of a penal or quasi-

penal nature, however, a clear distinction

is recognized between a mere "failure" and a

"willfull failure." As used in such

statutes, a "willful failure" to obey is

almost universally held to mean something

more than a mere inattentive, inert or

passive omission. "Willful," when used in

such statutes, denotes some element of

design, intention, or deliberation, a

failure resulting from an exercise of the

will, or a purpose to fail. A "willful

failure" denotes a conscious purpose to

disobey, a culpable omission, and not merely

innocent neglect. A failure without any

element of intention, design or purpose, and

resulting merely from innocent neglect, is

not a "willfully" [sic] failure. Every

voluntary act of a person is intentional,

and therefore in a sense willful, but

generally speaking, and usually when

considering statutes of the character

mentioned, a voluntary act becomes "willful"

in law only when it involves some degree of

conscious wrong on the part of the actor, or

at least culpable carelessness on his part,

something more than a mere omission to

perform a previously imposed duty. Shuman

v. State, 62 Fla 84, 56 So. R. 694; State v.

Meek, 172 N.. R. 1023; Ann. Cas. 1912C,

1075; Felton v. U.S., 96 U.S. 702, 24 L. Ed.

875; Roberts v. U.S., 126 Fed. 897, 904;

State v. Edmunds, 104 N.W.R. 1115; Brown v.

State, 119 N.W.R. 338; Potter v. U.S., 155

U.S. 437; 39 L. Ed. 214; Spurr v. U.S. 174

U.S. 728; 43 L. Ed. 1150.

71. Petitioner established an intentional wrongful act in

each of the three proved violations. Additionally, Petitioner

also proved the lesser state of mind allowed by Lester . The

repeal of Section 106.37, Florida Statutes, suggests that the

mere failure to make a reasonable effort to inform oneself about

the requirements of the law is, standing alone, insufficient to

establish wilfulness, although it may be a factor in determining

wilfulness. The use in the Findings of Fact of "an act of

conscious culpability" is intended to mean both alternative

Lester elements: culpable omission and conscious wrong. Again,

though, the evidence in these cases is sufficient to prove an

intentional act of wrongdoing under the more straightforward

meaning of willful.

72. Other important statutory definitions cover

"contributions," "expenditures," and "independent expenditures."

Section 106.011(3)(a)-(c), Florida Statutes, defines

"contribution" as:

(a) A gift, subscription, conveyance,

deposit, loan, payment, or distribution of

money or anything of value, including

contributions in kind having an attributable

monetary value in any form, made for the

purpose of influencing the results of an

election or making an electioneering

communication.

(b) A transfer of funds between political

committees, between committees of continuous

existence, between electioneering

communications organizations, or between any

combination of these groups.

(c) The payment, by any person other than a

candidate or political committee, of

compensation for the personal services of

another person which are rendered to a

candidate or political committee without

charge to the candidate or committee for

such services.

* * *

73. Section 106.011(4), Florida Statutes, provides:

(a) "Expenditure" means a purchase,

payment, distribution, loan, advance,

transfer of funds by a campaign treasurer or

deputy campaign treasurer between a primary

depository and a separate interest-bearing

account or certificate of deposit, or gift

of money or anything of value made for the

purpose of influencing the results of an

election or making an electioneering

communication. However, "expenditure" does

not include a purchase, payment,

distribution, loan, advance, or gift of

money or anything of value made for the

purpose of influencing the results of an

election when made 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, for the

purpose of printing or distributing such

organization's newsletter, containing a

statement by such organization in support of

or opposition to a candidate or issue, which

newsletter is distributed only to members of

such organization.

(b) As used in this chapter, an

"expenditure" for an electioneering

communication is made when the earliest of

the following occurs:

1. A person enters into a contract

for applicable goods or services;

2. A person makes payment, in whole

or in part, for the production or public

dissemination of applicable goods or

services; or

3. The electioneering communication

is publicly disseminated.

74. Section 106.011(5)(a), Florida Statutes, states:

"Independent expenditure" means an

expenditure by a person for the purpose of

expressly advocating the election or defeat

of a candidate or the approval or rejection

of an issue, which expenditure is not

controlled by, coordinated with, or made

upon consultation with, any candidate,

political committee, or agent of such

candidate or committee. An expenditure for

such purpose by a person having a contract

with the candidate, political committee, or

agent of such candidate or committee in a

given election period shall not be deemed an

independent expenditure.

75. The distinction between "contributions" and

"expenditures," on the one hand, and "independent expenditures,"

on the other hand, is that the candidate must report the former,

under Section 106.07, Florida Statutes, but the person making

the independent expenditure must report the latter, pursuant to

Section 106.071, Florida Statutes. See Beardslee v. Florida

Elections Commission , 962 So. 2d 390 (Fla. 5th DCA 2007).

76. The Beardslee decision discusses the agency

relationship that will preclude an independent expenditure. The

court noted that the requisite agency relationship between a

candidate and her husband who had bought campaign yard signs

could be inferred from past dealings between the parties and the

facts and circumstances. Sustaining a finding that the

husband's yard-sign expenditures were not independent from the

wife's campaign, the court noted that the husband had used funds

from a joint checking account to acquire the signs, the husband

had been active in his wife's campaign, and, before the

election, the wife had seen her husband and the signs, which

bore the legend, "Paid Political Advertisement by Judy

Beardslee."

77. However, the Legislature has precluded the use of one

factor, in itself, to establish the agency relationship.

Section 106.025(1)(c), Florida Statutes, states: "An individual

may be appointed and serve as campaign treasurer of a candidate

and a political committee . . .." By authorizing one person to

serve in this capacity in a campaign and a political committee,

the legislature impliedly precluded reliance on this factor,

without more, to establish the agency relationship to preclude

independent expenditures.

78. Petitioner must prove the material allegations by

clear and convincing evidence. Diaz de la Portilla v. Florida

Elections Commission , 857 So. 2d 913 (Fla. 3d DCA 2003).

79. Section 106.265, Florida Statutes, authorizes

Petitioner to impose fines of not more than $1000 per count and

identifies several aggravating and mitigating circumstances.

The reference to "Petitioner" in this statute is an inadvertent

remnant from the period, prior to January 1, 2008, when

Petitioner, not the Division of Administrative Hearings, entered

the final orders in these cases. Pursuant to Section 106.25(5),

Florida Statutes, the Administrative Law Judge now enters the

final order in these cases.

80. Petitioner has proved by clear and convincing evidence

the violations in Counts 1 and 2 against Ms. Valliere and the

violation in Count 1 against Mr. Valliere.

81. Most of the claims in these cases turn on whether

expenditures by the CCMC are independent expenditures, which

turns on whether CCMC's expenditures are controlled by,

coordinated with, or made on consultation with the political

campaign. (As used in this Final Order, "coordination"

encompasses these three actions.) The evidence fails to

establish that the political campaign--in the form of

Ms. Valliere or Mr. Sorenson--had any of these relationships on

the expenditures of CCMC, or that Mr. Valliere served as the

conduit between the two entities for the purpose of establishing

coordination. Clearly, some elements of coordination existed,

as when Ms. Valliere demanded that Mr. Valliere remove the signs

in April, move the signs in July, and fix the signs' disclaimer

in August. Also, Ms. Valliere referred the firefighters to

Mr. Valliere's CCMC so they could help with the signs. But none

of these acts is direct evidence of coordination of

expenditures, nor are the several instances in which

Ms. Valliere made use of CCMC-produced campaign items, like

signs or T-shirts.

82. The closest direct evidence of coordination of

expenditures is the pizza party, in which Mr. Valliere described

the signs that he was making to promote his wife's re-election

efforts. However, for the reasons stated above, this does not

constitute coordination of expenditures. Further, nothing

suggests that Mr. Valliere detailed a production schedule,

rather than extolled his virtues in sign design and production.

83. The common involvement of Jonathan and Mr. Valliere in

the activities of both entities was suspicious, but nothing

more. (Just as Petitioner may not make its case entirely on

Mr. Valliere's service as treasurer to both the campaign and the

committee, neither can respondents seize the statute as some

sort of safe harbor.) Also, if the record suggested a long

queue of contributors eager to double up on their maximum

contributions by contributing to Ms. Valliere and to

Mr. Valliere, perhaps the inferences on which Petitioner's cases

rely would have met the formidable standard of proof involved in

cases such as these.

84. But, ultimately, Petitioner's direct and inferential

evidence of coordination of expenditures cannot overcome the

fact that, although ostensibly united in the goal of

Ms. Valliere's re-election, CCMC and the political campaign were

in competition, and, strangely, this fact does not seem at odds

with the intent of both spouses or the nature of their

relationship.

85. The fines for the two counts that Petitioner has

proved against Ms. Valliere and one count against Mr. Valliere

should be the maximum allowed by law, given the seriousness of

three of the violations, and the lack of good faith.

FINAL ORDER

Based on the foregoing,

It is

ORDERED that Ms. Valliere is guilty of Counts 1 and 2 of

the Order of Probable Cause and is fined $2000; Mr. Valliere is

guilty of Count 1 of the Order of Probable Cause and is fined

$1000; and the remaining counts, not already dismissed, are

dismissed.

DONE AND ORDERED this 1st day of July, 2009, in

Tallahassee, Leon County, Florida.

___________________________________

ROBERT E. MEALE

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 1st day of July, 2009.

COPIES FURNISHED:

Mark Herron, Esquire

Messer, Caparello & Self, P.A.

2618 Centennial Place

Post Office Box 15579

Tallahassee, Florida 32317

Charles A. Finkel, General Counsel

Eric M. Lipman, Assistant General Counsel

Florida Elections Commission

Collins Building, Suite 224

107 West Gaines Street

Tallahassee, Florida 32399

A. James Valliere, Esquire

79 South River Road

Stuart, Florida 34996

Barbara M. Linthicum, Executive Director

Florida Elections Commission

The Collins Building, Suite 224

107 West Gaines Street

Tallahassee, Florida 32399-1050

Patsy Rushing, Clerk

Florida Elections Commission

The Collins Building, Suite 224

107 West Gaines Street

Tallahassee, Florida 32399-1050

NOTICE OF RIGHT TO JUDICIAL REVIEW

A party who is adversely affected by this Final Order is

entitled to judicial review pursuant to Section 120.68, Florida

Statutes. Review proceedings are governed by the Florida Rules

of Appellate Procedure. Such proceedings are commenced by filing

the original Notice of Appeal with the agency clerk of the

Division of Administrative Hearings and a copy, accompanied by

filing fees prescribed by law, with the District Court of

Appeal, First District, or with the District Court of Appeal in

the Appellate District where the party resides. The notice of

appeal must be filed within 30 days of rendition of the order to

be reviewed.