18-000017EC In Re: Kashamba L. Miller-Anderson vs. * Status: Closed Recommended Order on Thursday, June 7, 2018.

Summary: The Advocate did not demonstrate a violation of section 112.3145(8)(c) because Respondent ultimately filed the form, and her tardiness was not willful.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

IN RE: KASHAMBA L. MILLER - Case No. 18 - 0017EC

ANDERSON,

Respondent.

_______________________________/

RECOMMENDED ORDER

On March 22, 2018, Administrative Law Judge Lisa Shearer

Nelson condu cted a hearing pursuant to section 120.57(1), Florida

Statutes (2017), in Tallahassee, Florida.

APPEARANCES

For Advocate : Melody A. Hadley, Esquire

Office of the Attorney General

The Capitol, Plaza Level 01

Tallahassee, Florida 32399 - 1050

For R espondent: Ronald G. Meyer, Esquire

Meyer, Brooks, Demma and Blohm, P.A.

131 North Gadsden Street (32301)

Post Office Box 1547

Tallahassee, Florida 32302

STATEMENT OF THE ISSUE S

The issues for determination in this proceeding are whether

Respond ent, KaShamba Miller - Anderson, violated section

112.3145(8)(c), Florida Statutes (2016) , by willfully failing to

file a 2015 CE F orm 1, Ð Statement of Financial Interests Ñ ; and ,

if so, what penalty should be imposed.

PRELIMINARY STATEMENT

On October 2 5 , 2 017, Petitioner, the Florida Commission on

Ethics (Petitioner or the Commission) , filed an Order Finding

Probable Cause against Respondent, alleging that she willfully

failed or refused to file an annual CE Form 1, Statement of

Financ ial Interests for the year 2015, in violation of section

112.3145(8)(c). At Respondent Ó s request, the matter was referred

to the Division of Administrative Hearings (Division) on

January 3, 2018, for assignment of an administrative law judge.

The case was docketed as Case No. 18 - 0017EC and originally

assigned to Judge Robert S. Cohen.

By notice issued January 11, 2018, the case was scheduled

for hearing on March 22, 2018. On March 12, 2018, the parties

filed a Joint Prehearing Stipulation that contained stipulated

facts fo r which no evidence would be required at hearing. Those

facts have been incorporated into the Findings of Fact below. On

March 15, 201 8 , the case was transferred to the undersigned.

At hearing, the Advocate presented the testimony of Kimberly

Holmes and A. Keith Powell. Joint Exhibits 1 through 3 and

Advocate Ó s Exhibits 1 through 11 were admitted into evidence .

Respondent testified on her own behalf, but did not submit any

additional exhibits.

The Transcript of the hearing was filed with the Divisio n on

April 16, 2018. At the parties Ó request, the deadline for the

submission of proposed recommended orders was extended to May 10,

2018 . Both submissions were timely filed and have been

considered in the preparation of this Recommended Order. All

refe rences to the Florida Statutes are to the 2016 codification ,

unless otherwise specified.

FINDING S OF FACT

1. Respondent is currently a member of the Riviera Beach

City Council.

2. As a member of the Riviera Beach City Council,

Respondent served as a Ð loc al officer Ñ as defined in section

112.3145(1)(a), throughout the year 2015.

3. Respondent was aware that she was required to file a CE

Form 1 every year, including for the year 2015.

4. Financial disclosures are filed in order to allow the

public to moni tor public officials and employees for any

conflicts of interest that may arise. The requirement that

financial disclosures be filed is intended to deter corruption

and increase the public Ó s confidence in government.

5 . In 2016, Respondent received e - mai ls at the address

[e-mail] . She received regular mail at the address

430 West 28 th Street, Riviera Beach, Florida 33404.

6 . The CE Form 1, Ð Statement of Financial Interests, Ñ for

calendar year 2015 was required to be filed on or before July 1,

2016. There is a grace period for filing the form that expired

on September 1, 2016. After the expiration of the grace period,

an automatic fine of $25 per day was imposed for each day the

f orm is late, up to a maximum fine of $1,500. The maximum fi ne

accrued on October 31, 2016.

7 . The Palm Beach County Supervisor of Elections (Palm

Beach SOE) office sent Respondent the original blank 2015

financial disclosure form, along with the requirements for filing

the form, before June 1, 2016. She was inst ructed to file her

completed form no later than July 1, 2016.

8 . Respondent faile d to file her 2015 CE Form 1 by either

July 1, 2016, or September 1, 2016.

9 . Respondent received notice from the Commission regarding

her failure to file her 2015 CE Form 1 .

10 . On July 31, 2016, t he Palm Beach SOE sen t a delinquency

memorandum to Respondent at 430 West 28 th Street, Riviera Beach,

Florida 33404 by certified mail. The mail was unclaimed.

1 1 . Th e July 31, 2016, memorandum included the following

statement:

Pursuant to State law, please be advised that

although you are delinquent in filing Form 1,

a grace period is in effect until

September 1, 2016. If your form is not

received by September 1, 2016, we will be

required by law to notify the Commission on

Eth ics of the delinquency. A fine of $25 for

each day late will be imposed, up to the

maximum penalty of $1500. In addition,

pursuant to enacted legislation, the

Commission on Ethics must initiate

investigations of delinquent filers in

certain circumstances . This can result in

you being removed from your public office or

employment.

1 2 . Respondent took no action to file her form by

September 1, 2 01 6. If she had done so, it would have been

considered timely.

1 3 . Commission staff sent Respondent a courtes y letter on

September 7, 201 6 , and advised her that she was accruing a fine

of $25 per day for failure to file her 2015 CE Form 1. The

Commission also e - mail ed Respondent on September 20, 2016, using

the e - mail address [e-mail] .

1 4 . Respon dent accrued the maximum fine of $1,500 as of

October 31, 2016, as authorized by section 112.3145(7)(f), for

failing to file her CE Form 1 for the year 2015. On November 4,

201 6 , the Commission again e - mail ed Respondent at the same e - mail

address, advisin g her that the maximum fine had accrued and she

still needed to file her 2015 CE Form 1.

15. The November 4, 2016, e - mail attached a blank 2 01 5 CE

Form 1 and a form to appeal her fine. Respondent did not avail

herself of the opportunity to appeal the fin e that had accrued.

1 6 . On February 21, 2017, the Commission sent Respondent a

Notice of Assessment of Automatic Fine by certified mail, using

the 430 West 28 th Street address. Respondent acknowledged

receipt of the February 2017 notice. This e - mail als o provided

the appeal process for contesting the maximum fine.

1 7 . Respondent did not pay the fine at that time because

she did not have the funds to do so. She believed, in error,

that she now could not file the 2015 CE Form 1 until she paid the

fine. Her belief, however misplaced, was sincere.

1 8 . On June 16, 2017, the Commission mailed Respondent a

Notification of Issuance of Default Final Order at the 430 West

28 th Street address . The Notice was not returned to the

Commission as undeliverable.

1 9 . On June 22, 2017, Respondent paid the $1,500 fine.

20 . On June 28, 2017, Respondent filed her CE Form 1 for

calendar year 2015.

2 1 . Respondent did not have a particularly compelling

reason for not timely filing her 2015 CE Form 1. Her position on

the c ity council is a part - time position, for which she is not

assigned an assistant. She admitted at hearing that the notice

and the form simply got lost on her desk, and she did not make it

a priority. However, Respondent claims that while filing her

2015 C E Form 1 was not the priority it should have been, she

never intended not to file the form, and she never indicated to

anyone that she would not do so.

2 2 . Respondent filed her 2015 CE F orm 1 and paid the fine

prior to the finding of probable cause in thi s case.

2 3 . There are some differences between the financial

disclosure Respondent filed when she initially ran for office and

the one filed for 2015. Those differences however, are not so

great as to support an inference or finding that she was

attempt ing to hide something by not filing timely.

2 4 . The term for which Respondent was elected expired on

March 21, 201 8. She was re - elected for another term which began

March 21, 2018.

CONCLUSIONS OF LAW

2 5 . The Division of Administrative Hearings has

juri sdiction over the parties and the subject matter of this

proceeding pursuant to section 120.569 and 120.57(1).

2 6 . The Commission is authorized to conduct investigations

and to make public reports on complaints concerning violations of

chapter 112, part III, Florida Statutes, which is referred to as

the Code of Ethics for Florida Public Officers and Employees.

2 7 . The Advocate has the burden to establish the

allegations in the Order Finding Probable Cause by clear and

convincing evidence. Latham v. F la. Comm Ó n on Ethics , 694 So. 2d

83 (Fla. 1st DCA 1997); see also Dep Ó t of Banking & Fin. v.

Osborne Stern & Co. , 670 So. 2d 932 (Fla. 1996); Ferris v.

Turlington , 510 So. 2d 292 (Fla. 1987).

2 8 . Clear and convincing evidence requires more than a

prepond erance of the evidence and less than the criminal standard

of beyond a reasonable doubt. In re : Graziano , 696 So. 2d 744,

753 (Fla. 1997).

2 9 . As stated by the Supreme Court of Florida :

Clear 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 testimony must

be precise and lacking in confusion as to the

facts in issue. The evidence must be of such

a weight that it produces in the mind of the

trier of fact a firm belief or conviction,

without hesitancy, as to the truth of the

allegations sought to be established.

In re : Henson , 913 So. 2d 579, 590 (Fla. 2005) ( quoting

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

30 . The Order F inding Probable Cause finds that :

[T] here is probable cause to believe the

Respondent, as a local officer required to

file financial disclosure, violated Section

112.3145(8)(c) , Florida Statutes, by

willfully failing or refusing to file an

annual CE Form 1 , Statement of Financial

Interests for the year 2015, required to be

filed by her due to her service as a member

of the City Council of the City of Riviera

Beach.

3 1 . Section 112.3145(8)(c) provides:

If a person holding public office or public

employm ent fails or refuses to file an annual

statement of financial interests for any year

in which the person received notice from the

commission regarding the failure to file and

has accrued the maximum automatic fine

authorized under this section, regardless of

whether the fine imposed was paid or

collected, the commission shall initiate an

investigation and conduct a public hearing

without receipt of a complaint to determine

whether the person Ó s failure to file is

willful. . . . Except as provided in

s. 112. 324(4), if the commission determines

that the person willfully failed to file a

statement of financial interests, the

commission shall enter an order recommending

that the officer or employee be removed from

his or her public office or public

employment.

3 2 . Both parties agree that in order to find a violation of

section 112.3145(8)(c), the foll owing elements must be proven:

that 1 ) Respondent is a public officer or employee holding office;

2 ) Respondent either failed or refused to file an annual statem ent

of financial interests; 3 ) Respondent received notice from the

C ommission regarding the failure to file for the corresponding

year; 4 ) the maximum fine authorized for failing to file has

accrued; and 5) Respondent Ó s failure to file is willful.

3 3 . In this case, there is no real dispute as to the first,

third, and fourth elements. Respondent is a member of the Riviera

Beach City Council; she received multiple notices regarding the

need to file; and the maximum fine accrued for failing to file.

3 4 . The Commission did not prove, however, that she failed

or refused to file her 2015 CE Form 1. Instead, the evidence

demonstrated that she filed the form, woefully late, but filed it

nonetheless.

3 5 . In TR & SNF, Inc. v. Ag ency for Health Care

Admin istr ation , 238 So. 3d 934 (Fla. 1 st DCA 2018), the First

District considered whether the agency had the authority to revoke

a nursing home Ó s license for violating section 410.810(8), Florida

Statutes (2014) , by not Ð timely providing Ñ requested proof of

financi al ability to operate. The c ourt noted that section

410.810(8) requires the submission of proof of financial ability

to operate, but does not specify a time requirement. The c ourt

determin ed that while failure to provide the information would be

a basis for revocation, the failure to Ð timely Ñ provide it would

not.

3 6 . To be sure, there are differences between TR & SNF and

the situation here: there is a timeframe for filing one Ó s

statem ent of financial interests form specified in statute, and a

penalt y that accrues on a daily basis when the deadline for filing

and the grace period both pass. However, section 112.3145(8)(c),

the section charged here, provides for a recommendation of removal

from office where the officer or employee willfully fails to f ile

a statement at all , as opposed to willfully failing to timely

file.

3 7 . Given the penal nature of this proceeding, section

112.3145 (8)(c) must be strictly construed, with any ambiguity

interpreted in favor of Respondent. Ocampa v. Dep Ó t of Health ,

806 So. 2d 633, 634 - 35 (Fla. 1 st DCA 2002); Elmariah v. Dep Ó t of

Prof Ó l Reg. , 574 So. 2d 164, 165 (Fla. 1 st DCA 1990). Here, the

language is not ambiguous: it penalizes the willful failure to

file, as opposed to filing after the maximum fine is due.

3 8 . The conclusion that the Advocate failed to prove that

Respondent failed or refused to file her 2015 CE Form 1 requires

dismissal of the charge against her. The evidence also did not

demonstrate that the late filing was willful.

3 9 . Willfulness is a question of fact. It is generally

defined as Ð one that is voluntarily and intentionally performed

with specific intent and bad purpose to violate or disregard the

requirements of the law. Ñ Fugate v. Fla. Elec . Comm Ó n , 924 So. 2d

74, 75 (Fla. 1 st DCA 20 06).

40 . The question of willfulness in this case is a close

call. Given the high burden of proof however, the evidence does

not support that Respondent Ó s admittedly late filing of her 2015

CE Form 1 was willful as opposed to negligent .

RECOMMENDATI ON

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Florida Commission on Ethics

enter a f inal o rder and p ublic r eport finding that no violation

of section 112.3145(8)(c) has been demonstrated .

DONE AND ENTERED th is 7th day of June , 2018 , in Tallahassee,

Leon County, Florida.

S

LISA SHEARER NELSON

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 306 0

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 7th day of June , 2018 .

COPIES FURNISHED:

Millie Wells Fulford, Agency Clerk

Florida Commission on Ethics

Post Office Drawer 15709

Tallahassee, Florida 32317 - 5709

(eServed)

Melody A. Hadley, Esquire

Office of the Attorney General

The Capitol, Plaza Level 01

Tallahassee, Florida 32399 - 1050

(eServed)

Ronald G. Meyer, Esquire

Meyer, Brooks, Demma and Blohm, P.A.

131 Nort h Gadsden Street (32301)

Post Office Box 1547

Tallahassee, Florida 32302

(eServed)

C. Christopher Anderson, III, General Counsel

Florida Commission on Ethics

Post Office Drawer 15709

Tallahassee, Florida 32317 - 5709

(eServed)

Virlindia Doss, E xecutive Director

Florida Commission on Ethics

Post Office Drawer 15709

Tallahassee, Florida 32317 - 5709

(eServed)

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Ord er. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.