19-003376FEC Florida Elections Commission vs. Randy Scott Status: Closed DOAH Final Order on Wednesday, March 4, 2020.

Summary: Section 106.07(2)(b)1. applies to incomplete reports, those missing information, not incorrect reports, those with errors. A report mischaracterizing the purpose of an expenditure is incorrect not incomplete. FEC cannot fine reporter under ?106.07(2)(b)1.

and failing to file an addendum completing the report within seven days after

receiving notice that the report was incomplete?

P RELIMINARY S TATEMENT

On May 31, 2019, Petitioner, Florida Elections Commission (Commission ) ,

entered an Order of Probable Cause charging Mr. Scott with violating section

106.07(2)(b)1. Mr. Scott filed a request for a formal administrative hearing to contest the Order. The Commission denied it without prejudice. Mr. Scott

filed an Amended Petiti on for Formal Hearing. On June 20, 2019, the

Commission referred th e matter to the Division to conduct the requested

formal hearing.

The undersigned set the final hearing for August 29, 2019, a date

requested by the parties. After granting two continuance s for good cause on

motions of the Commission , which were not opposed , the undersigned

scheduled the final hearing for December 10, 2019. The hearing was conducted as notice d .

At the hearing, the Commission presented testimony from Cheryl Futch,

Tammy Li pa, Mr. Scott, and Keith Smith. Commission Exhibits A through X

were admitted into evidence. Mr. Scott testified on his own behalf. He did not

offer exhibits.

The Commission moved to extend the deadline for filing a proposed final

order until 30 days afte r the transcript was filed. Without objection, the

motion was granted. The transcript of the hearing was f iled January 9, 2020.

The parties timely filed proposed orders. They have been considered in the

preparation of this Order.

F INDINGS O F F ACT

1. Mr. Scott ran for election to Seat 4 of the governing board for the Lee

Memorial Health System. The election for the seat was to be held during the

November 6, 2018, general election, not during the August 28, 2018, pr i mary

election.

2. The Lee County Supervi sor of Elections ( Supervisor ) oversees and

conducts elections . Candidates running for electi o n in Lee County submit

their in i tial paperwork, qualifying paperwork, and electronic financial

reports to the Supervisor's filing officer. Cheryl Futch has been th e

Supervisor's filing officer for six years. Tammy Lipa assists Ms. Futch.

3. On June 20, 2018, Mr. S cott filed to run for Seat 4. On June 28, 2018,

Mr. Scott filed an Active Candidate Acknowledgement designating himself as

the campaign treasurer. After th at filing, Mr. Scott could accept campaign

contributions and make campaign expenditures. He was also required by

section 106.07(1) to file regular reports of contributions and expenditures.

4. Mr. Scott opened a campaign bank account with SunTrust Bank wit h a

$160.00 cash contribution. He reported the contribution on his Campaig n

Treasu r er's Report Summary for the period June 23 to July 6, 2018, as a loan

from himself.

5. For the period August 4 through Au gust 10, 2018, Mr. Scott filed a

Waiver of R eport w ith a notification of n o activity during the reporting

period. On August 10, 2018, he made a withdraw a l from his campaign

account at an ATM. The records do not show what time of day he made the

withdrawal. This case does not involve a charge related to th e August 10,

2018 , report.

6. Mr. Scott subsequently filed his campaign treasurer's report for

August 11 to August 23, 2018. On that report, Mr. Scott reported an

expenditure as a payment to himself of $140.00 on August 11, 2018 . He

identified the purpose o f the expenditure as "website." The $140.00

expenditure appears in B lock 7 of t he form titled "Expenditures This Report"

and on an attached itemized expenditure form. Block 8 of the summary form,

titled "Other Distributions" does not contain any amounts. I n B lock 9, titled

"Expenditure Type," the letters "RM" appear. (Comm. Ex. F) The evidence

does not prove what those letters represent or who placed them there .

7. Ms. F utch accepted the report conditionally . At the hearing,

Commission counsel asked Ms. Fu tch, "Why was Mr. Scott's original 2018 P7

report incorrect or incomplete?" She replied, "He indicated a reimbursement

without a distribution in his expenditures." (Tr. P. 118) The record does not

reveal why Ms. Futch concluded that Mr. Scott had indicated a

reimbursement. The record is clear that Ms. Futch disagreed with Mr. Scott's

characterization of the expenditure and thought that it was incorrect.

8. On August 27, 2 0 18, at 8:04 a.m., Ms. Futch se nt Mr. Scott an email

stating: "Good morning. Your repor t has the following erro r s therefore you

will be required to amen d this report." A n image of a campaign treasurer's

report, in a different form than the report filed by Mr. Scott was beneath the

te x t . T he words " reimbursements must have a distribution reco rded" are

enclosed in a text box and an arrow point s toward the word

" Reimbursements " in another box appearing directly below the words "Exp.

Type." The email does not state that Mr. Scott's report is incomplete.

9. Mr. Scott called and spoke to Ms. Futch on August 27, 2018. He advised

her that he did not agree with her and did not want to identify the $140.00

expenditure as a reimbursement.

10. At 2:20 p.m. , Ms. Futch sent Mr. Scott another email. It stated, "Your

amended report has the following errors an d therefore will be rejected." It

does not state that the report is incomplete.

11. An August 27, 2018, email from Ms. Futch stated, "Mr. Scott your

report is still incorrect, please make the proper corrections and resubmit." It

does not state that the rep ort is incomplete.

12. On August 28, 2018 , Ms. Futch emailed Mr. Scott telling h i m she

notice d he was having difficulty filing an amended report using the

Supe rvisor's online filing system. She noted he had attempte d to file five

amended reports. She adds, " In addition, the amendment you are attempting

is still incorrect. If you would like to make an appointment after the election ,

I would be glad to walk you through deleting the extra reports and show you

how to correct your P7." The email does not state t hat Mr. Scott's report is

incomplete.

13. The disagreement between Mr. Scott and Ms. Futch about how to

categorize the $140.00 continued . During their communications, Mr. Scott

provided Ms. Futch differing theories about how the expenditure should be

class ified and why.

14. Eventually the Supervisor issued a "Notification of Incomplete Report

Filing ," received by Mr. Scott on September 17, 2018. The notification states:

The L ee County Supervisor of Elections office has

determined that one or more campaign reports are

incomplete for the following reasons.

The P7 report needs to be amended: expenditure

type should be Monetary ( not reimbursement ) .

15. Eventually, Ms. Futch executed and filed a Complaint against

Mr. Scott with the Commission .

16. M ore emails between Mr. Scott , Ms. Futch , and Ms. Lipa fo llowed. On

October 9, 2 018, Ms. Futch sent an ema i l to Mr. Scott stating :

Good Afternoon Mr. Scott,

Your P7 and previously filed amendments to that report are incorrect and the explanations why have been relayed to you through multiple emails. Our

office can not force you to file your report properly we are just under the obligation to report it when you don't.

17. The email does not state that Mr. Scott's report is in complete .

18. Mr. Scott's response on Octobe r 9, 2018, ended:

Since you are asking me to fill out a state form contrary to the facts I can not and will not honor

your request. Further your rej e ction is outside the

ministerial duties of your job and find that action

unbecoming a public official. [sic ]

At any time Tommy Doyle [the Supervisor] has the

ability to pull back the complaint and based on these facts and the law that is exactly what he

should order you to do.

For now no further communication is needed on the

P7 filing.

19. Mr. Scott disagre ed repeatedly, vigorously, and contentiously with

Ms. Futch about how to characterize the $140.00. In Ms. Futch's view,

Mr. Scott repeatedly characterized the expenditure incorrectly on his report

and amended reports .

20. The reports were not incomplete.

C ONCLUSIONS O F L AW

21. Section s 106.25(5), 120. 569 , and 120.57(1), Florida Statutes (2019) ,

grant the Division jurisdiction over this matter.

22. The Commission charges Mr. Scott with violating section

106.07(2)(b)1. It seeks to impose the statutory max imum penalty of $1,000 for

the alleged violation. 2 Because it seeks to impose a penalty, the Commission

must prove its charge by clear and convincing evidence. Diaz de la Portilla v.

Fla. Elections Comm'n , 857 So. 2d 913 (Fla. 3d DCA 2003) .

23. Clear and convinc ing evidence must be credible. The memories of

witnesses must be clear and not confused. The evidence must produce a firm

belief that the truth of allegations has been established. Slomowitz v. Walker ,

429 So. 2d 797, 800 (Fla. 4th DCA 1983). Eviden ce that conflicts with other

evidenc e may be clear and convincing. The trier of fact must resolve conflicts

in the evidence. G.W.B. v. J.S.W. (in Re Baby E.A.W.) , 658 So. 2d 961, 967

2 The Commission may impose a civil penalty not to exceed $1,000 per count. §106.25(1), Fla.

Stat.

(Fla. 1995). Here Ms. Futch's repeated description of Mr. Scott's reports as

incorrect and the fact that there was no information missing from the report

eliminate the possibility of a firm belief that they were incomplete.

24. Section 106.07 requires each campaign treasurer for a candidate to

"file regular reports of all cont ributions received, and all expenditures made,

by or on behalf of such candidate . " The section that the Commission

accuses Mr. Scott of violating, section 106.07(2)(b)1., reads:

Any report that is deemed to be incomplete by the

officer with whom the can didate qualifies must be

accepted on a conditional basis. The campaign

treasurer shall be notified by certified mail or by

another method using a common carrier that

provides a proof of delivery of the notice as to why

the report is incomplete and within 7 days after

receipt of such notice must 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.

25. The statute is clear and unambiguous. It says "incomplete" reports . It

does not say " incorrect " reports . Consequently , it should be interpreted and

applied as the Legislature enacted it. Wheaton v. Wheaton , 261 So. 3d 1236 ,

1242 (Fla. 2019) ; Dep't of Rev. v. Graczyk , 206 So. 3d 157 , 159 (Fla. 1st DCA

2016) . This means that in order to prove Mr. Scott violated the statute the

Commission must prove by clear and convincing evidence that Mr. Scott filed

an incomplete report. It did not do so. This conclusi on conforms with the

Supervisor's demands of Mr. Scott. Ms. Futch repeatedly directed M r. Scott to

"amend" his report. "Amend" means to change or modify.

https://www.merriam - webster.com/dictio nary/amend

(last visited Feb. 29,

2020). This is consistent with correcting an incorrect report; it is not consistent with adding missing information to an incomplete report.

26. "Addendum," the word the statute uses to describe what must be done

to remed y an incomplete report , means addition. https://www.merriam -

webster.com/dictionary/addendum (last visited Feb. 29, 2020). This is

consistent with adding to something that is incomplete. So , the Supervisor's

requests themselves demonstrate that the office did not view Mr. Scott's

report as missing information (incomplete) but as having incorrect

information.

27 . T he fact that the Legislature differentiated between incorrect and

incomplete in section 106.07(5) reinforce s this conclusion. S ection 106.07(5) ,

which does impose sanctions for filing an incorrect report, makes it a

misdemeanor to willfully certify "the correctness of any report while knowing

that such report is incorrect, false, or incomplete … . " It differentiates

between "incomplete" and "incorrect." When the Legislature uses a term in

one section of a statute but does not in another, courts view the difference as

intentional and assign significance to the distinction. Smith v. Smith , 224 So.

3d 740 , 747 (Fla. 2017) . Application of that principle a lso mandates a

conclusion that section 106.07(2)(b)1. applies to incomplete reports , not

incorrect reports. The principle that s tatutes which impose penalties must be

strictly construed , further buttresses this conclusion . City of Miami Beach v.

Galbut , 626 So. 2d 192, 194 (Fla. 1993); Turbeville v. Dep't of Fin. Servs. , 248

So. 3d 194, 197 (Fla. 1st DCA 2018); Roche Sur. & Cas. Co. v. Dep't of Fin.

Servs., Office of Ins. Reg. , 895 So. 2 d 1139, 1141 (Fla. 2d DCA 2005) .

28 . In sum mary , the Commission did not prove by clear and convincing

e vidence that Mr. Scott filed an incomplete report. Therefore, he did not violate section 106.07(2)(b)1.

O RDER

Based on the foregoing Findings of Fact an d Conclusions of Law, it is

O RDERED that The Order of Probable Cau se entered against Randy Scott in

Case No. FEC 18 - 304 is D ISMISSED .

D ONE A ND O RDERED this 4th day of March , 2020 , in Tallahassee, Leon

County, Florida.

J OHN D. C. N EWTON , II

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Divis ion of Administrative Hearings

this 4th day of March , 2020 .

C OPIES F URNISHED :

Eric M. Lipman, General Counsel

Florida Elections Commission

107 West Gaines Street , Suite 224

Tallahassee, Florida 32399 - 1050

(eServed)

Randy Scott

343 Hazelwood Avenue Sou th

Lehigh Acres, Florida 33936 - 5876

(eServed)

St ephanie Jane Cunningham, Assistant General Counsel

Florida Elections Commission

Collins Building, Suite 224

107 West Gaines Street

Tallahassee, Florida 32399 - 1050

(eServed)

Amy McKeever Toman, Executi ve Director

Florida Elections Commission

Collins Building, Suite 224

107 West Gaines Street

Tallahassee, Florida 32399 - 1050

(eServed)

Donna Malphurs, Agency Clerk

Florida Elections Commission

Collins Building, Suite 224

107 West Gaines Street

Tallahassee , Florida 32399 - 1050

(eServed)

N OTICE O F R IGHT T O J UDICIAL R EVIEW

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 administrative appeal with the agency clerk of the Division of Administrative Hearings within 30 days of

rendition of the order to be reviewed, and a copy of the notice, a ccompanied

by any filing fees prescribed by law, with the clerk of the d istrict c ourt of

a ppeal in the appellate district where the agency maintains its headquarters

or where a party resides or as otherwise provided by law.