20-003599EC
In Re: Dustin Daniels vs.
*
Status: Closed
Recommended Order on Friday, February 19, 2021.
Recommended Order on Friday, February 19, 2021.
1S TATE OF F LORIDA
6D IVISION OF A DMINISTRATIVE H EARINGS
13I N R E : D USTIN D ANIELS , Case No. 20 - 3599EC
27Respondent .
29/
30R ECOMMENDED O RDER
34On October 29, 2020, Administrative Law Judge Ro bert J. Telfer III, of the
48Florida Division of Administrative Hearings (Division), conducted an evidentiary
57hearing pursuant to section 120.57(1), Florida Statutes (2020), in Tallahassee,
67Florida, via Zoom web - conference .
74A PPEARANCES
76For Advocate : Elizabeth A. Miller, Esquire
83Office of the Attorney General
88The Capitol, Plaza Level 01
93Tallahassee, Florida 32399
96For Respondent: Jennifer S. Blohm, Esquire
102Meyer, Brooks, Blohm & Hearn, P.A.
108P ost O ffice Box 1547
114Tallahassee, Florida 32302
117S TATEM ENT OF T HE I SSUE S
126W hether Respondent Dustin Daniels, while serving as Chief of Staff for the Mayor
140of Tallahassee, violated section 112.313(6), Florida Statutes, by corruptly using or
151attempting to use his official position or any property or resource whic h may have
166been within his trust, or performed his official duties, to secure a special privilege,
180benefit, or exemption for himself or others; and, if so, the appropriate penalty.
193P RELIMINARY S TATEMENT
197On January 30, 2019, the Florida Commission on Ethic s (Commission) issued an
210Order Finding Probable Cause to believe that Mr. Daniels, while serving as Chief of
224Staff for the Mayor of Tallahassee, violated section 112.313(6). The Commission
235forwarded the case to the Division on August 14, 2020.
245On August 2 0, 2020, the undersigned noticed this matter for a final hearing, via
260Zoom web - conference, for October 29, 2020.
268The Advocate filed a Motion in Limine or, in the Alternative, Notice of Intent to
283Introduce Evidence of Other Crimes, Wrongs, or Acts (William s Rule), on October 19,
2972020 (Motion). On October 20, 2020, Mr. Daniels filed a Response in Opposition to
311the AdvocateÔs Motion. The undersigned conducted a telephonic hearing on the
322Motion on October 26, 2020, and deferred ruling on the Motion until the f inal
337hearing.
338The undersigned conducted the final hearing on October 29, 2020, by Zoom web -
352conference. The Commission presented the testimony of Mr. Daniel s ; Max Kamin -
365Cross, the vice president of corporate development and strategic projects for Every
377Act ion, Inc. ; Andre Libroth, the former procurement services manager for the City of
391Tallahassee ; Tyler Epstein, a Sergeant with the Leon County SheriffÔs Office ; and
403Andrew Gillum, the former Mayor of Tallahassee. Additionally, Mr. Daniels testified
414on his o wn behalf. The undersigned admitted Joint Exhibits 1 through 8,
427CommissionÔs Exhibit P1 through P14, and RespondentÔs Exhibits R1 through R9
438into evidence.
440The two - volume Transcript of the final hearing was filed with the Division on
455December 1, 2020. On December 7, 2020, Mr. Daniels filed an Unopposed Motion for
469Extension of Time to File Post - Hearing Submittal. On December 7, 2020, the
483undersigned entered an Order Granting Extension of Time to File Post - Hearing
496Submittal, extending the deadline for filin g proposed recommended orders to
507January 15, 2021. The parties timely submitted proposed recommended orders on
518January 15, 2021, which the undersigned has considered in the preparation of this
531Recommended Order.
533All statutory references are to the 2016 co dification of the Florida Statutes, unless
547otherwise indicated.
549F INDINGS OF F ACT
5541. Mr. Daniels served as the Chief of Staff to the Mayor of Tallahassee,
568Mr. Gillum, from November 2014 through April 2018.
5762. Mr. Daniels previously served as Mr. GillumÔs campaign manager for his
588mayoral campaign.
5903. As Chief of Staff, Mr. Daniels managed the day - to - day responsibilities of the
607M ayorÔs O ffice, supervised the M ayorÔs staff, advocated on behalf of the M ayorÔs
623initiatives, and approved purchases made using city - issued credit cards (p - cards).
637NGP VAN
6394. NGP VAN is a cloud computing software suite that describes itself as:
652[T]he leading technology provider to Democratic and
659progressive campaigns and organizations, as well as
666nonprofits, municipalities, and other groups, offering
672clients an integrated platform of the best fundraising,
680compliance, field, organizing, digital, and social networking
687products.
6885. In February 2015, the MayorÔs Office entered into a contract with NGP VAN for
703a subscription to its service s, and used funds from the M ayorÔs Ñoffice account,Ò i.e.,
720leftover funds from his campaign account, to pay for the NGP VAN subscription for
734the remaining 11 months of that year. See § 106.141(5)(d), Fl a . Stat . , (providing a
751candidate elected to local offi ce the opportunity to transfer from a campaign account
765to an office account certain amounts of remaining funds from the campaign account,
778provided that such office account funds are used Ñonly for legitimate expenses in
791connection with the candidateÔs publ ic office.Ò). From January 2016 through the end
804of 2017, the City of Tallahassee, rather than the MayorÔs Office account, paid for the
819NGP VAN subscription; specifically, Mr. Daniels used a p - card to make these
833payments.
8346. Mr. Daniels explained the M ayorÔ s OfficeÔs use of NGP VAN as follows:
849NGP VAN is a set of online Ï itÔs a company that provides
862online communication services, digital communication
867services, in various forms. For the purposes of what I have
878used it for, what I use it for in the city was basically as a
893Client Relationship Management, or whatÔs commonly
899known as a CRM. ItÔs basically a system that allows for
910mass communications with large numbers of people via
918email, as well as social media in some cases.
927But for the most part, it was bas ically Ï itÔs a system that
941allows kind of two - way feedback. So instead of just sending
953emails, it allowed for you to understand how effective the
963communication was that you were sending. So it would
972provide you information about open rates, click - through
981rates È how engaged the audience was, how effective the
991message of the emails actually was. And so things thatÔs
1001essentially what we used it for.
10077. Mr. Gillum provided additional context for the M ayorÔs OfficeÔs use of NGP
1021VAN. Mr. Gillum became familiar with NGP VAN during his work for what he
1035labeled as a progressive organization, and then used it during subsequent campaigns
1047for city commission, mayor, and, most recently, governor of Florida. As a member of
1061the city commission, Mr. Gillum stated that on e of his Ñbig frustrationsÒ was the
1076Ñabsence of a real communication toolÒ with voters. He recalled that, during this time
1090period, Ñthere were no newsletters being sent from commissioners to their residents.Ò
11028. Mr. Gillum testified that prior to his elect ion as M ayor, the M ayorÔs OfficeÔs
1119method of electronic communication consisted of taking contact information from an
1130Excel spreadsheet and transferring that information to the City of TallahasseeÔs
1141Outlook email program, and then sending out a mass email with that contact
1154information. NGP VAN was a Ñcompletely new and dynamic way of being in
1167communicationÒ that allowed his office to determine whether communications it sent
1178were being opened and read, as well as Ña way for us to organize information through
1194our offices as well.Ò
11989. Mr. Kamin - Cross testified that NGP VAN had a subscription account with the
1213ÑOffice of Andrew Gillum.Ò He stated that this subscription was used as a CRM Ñfor
1228tracking interactions with people[.]Ò He stated that more than two - thi rds of NGP
1243VANÔs revenue is from subscriptions to elected officials and municipalities; the
1254remaining subscribers are candidates who identify as Democrats or progressives, as
1265NGP VANÔs parent company Ñoperates on a set of business ethics outlined in our
1279te rms of service that generally prohibits us from working with Republican campaigns
1292based off of our business ethics.Ò
129810. Mr. Daniels also testified concerning the M ayorÔs OfficeÔs use of NGP VAN as
1313follows:
1314So we would mass email folks of a variety of dif ferent
1326things that we were working on, and then we would look
1337at, again, the information or the key performance
1345indicators that each one of those messages would create for
1355us about, again, click - through rates, open rates, essentially
1365telling us a story beh ind all of that[.]
1374Like how effective was that email? You know, could we
1384make changes that would make it more appealing for
1393people to want to stay engaged with the things that we
1404were doing? We used it solely for that purpose, as well as to
1417maintain, obvi ously, our large database of contacts. And
1426outside of that, no other services were used.
143411. NGP VAN offers more than a CRM for managing various forms of
1447communications. Mr. Kamin - Cross mentioned that Ñ[t]here are add - on modules for
1461things like donations or compliance filings[,]Ò as well as another campaign - related
1475tool known as ÑVote Builder.Ò Mr. Gillum testified as to NGP VANÔs useful ness in a
1491campaign with respect to fundraising, including tracking contributions and
1500generating campaign finance reports.
150412. However, the version of NGP VAN utilized in the MayorÔs Office between
1517February 2015 and the end of 2017 did not utilize any of these campaign - related add -
1535ons; rather, the Mayor Ôs O ffice utilized NGP VAN solely as a CRM for managing
1551communications Ð nam ely, mass emails.
155713. Both Mr. Daniels and Mr. Gillum testified that the NGP VAN subscription
1570utilized by the MayorÔs Office served the public purpose of establishing accountability
1582to the citizens of Tallahassee by effectively communicating the Mayor Ôs in itiatives
1595and priorities, while also digitally organizing information that encouraged public
1605engagement beyond what previous mayors had accomplished.
1612Purchase of NGP VAN Subscription
161714. At the beginning of his employment with the City of Tallahassee, Mr. Daniels
1631received training on the use of the p - card, which primarily focused on the different
1647spending limits for different levels of city employees, and improper uses of p - cards,
1662such as the purchase of alcohol or other personal pur chas es.
167415. In January 2 016, the Mayor Ôs Ñoffice accountÒ no longer paid for the NGP VAN
1691subscription. From January 2016 through April 2018 (the duration of Mr. DanielsÔs
1703employment as Chief of Staff), Mr. Daniels used his p - card to pay for the NGP VAN
1721subscription. Mr. Daniels m ade four payments to NPG VAN with the p - card, as
1737follows: (a) $1,050.00; (b) $750.00; (c) $1,050.00; and (d) $2,115.00. These four
1752payments total $4.965.00.
175516. P - Card Procedures #603 (Procedure 603) , found in the City of TallahasseeÔs
1769Administrative Proce dures Manual, establishes Ñdepartmental procedures for the
1778procurement of supplies and services with a City of Tallahassee credit card (Purchase
1791Card) that has been implemented for small purchase transactions less than $25,000.Ò
1804P - Card Procedure 603.09, en titled ÑPROGRAM REQUIREMENTS/LIMITATIONS,Ò
1814provides, in part:
1817All purchases that exceed $1,000 shall be supported by at
1828least three - documented phone or written quotes; evidence
1837of contract; sole source, etc. (See Administrative Policy and
1846Procedure #242CP ).
184917. At least three of the purchases of the NGP VAN subscription (totaling
1862$4,965) with the p - card were subject to Procedure 603, and specifically, P - Card
1879Procedure 603.09.
188118. Mr. Libroth, who was the City of TallahasseeÔs procurement services manage r
1894during the time Mr. Daniels served as Chief of Staff, testified as to the City of
1910TallahasseeÔs purchasing procedures, and confirmed that any purchase above
1919$1,000.00 required three quotes, or documentation that it was from a sole source.
1933Mr. Libroth ad ditionally testified that the City of TallahasseeÔs procurement policies
1945require not only three quotes for any p - card purchase above $1,000.00 (that is not
1962from a sole source), but also that the purchaser must ultimately purchase the goods
1976or services from the vendor with the least expensive price quote.
198719. Mr. Daniels testified that his understanding of the procedures for purchasing
1999goods or services above $1,000.00 with a p - card:
2010[M]y understanding of the process that we had to
2019essentially go and get at least three quotations from those
2029Ï from different vendors to basically try to understand not
2039only pricing for those services, but also quality of services
2049and utility of services; and that we would basically keep a
2060record of those instances where we soug ht a quote; that we
2072had to basically keep records of the fact that we did that.
208420. The undersigned has reviewed Procedure 603 and specifically, P - Card
2096Procedure 603.09, and has not located any requirement that, for p - card purchases
2110above $1,000.00, the purchaser must purchase the goods or services from the vendor
2124with the least expensive price quote.
213021. When asked if he recalled whether Mr. Daniels followed P - Card Procedure
2144603.09 with respect to the purchase of the NGP VAN subscription with the p - card Ð
2161i.e., procuring three documented quotes Ð Mr. Libroth stated, ÑI canÔt with 100
2174percent certainty.Ò He testified that after receiving a public records request for this
2187information, he searched for this information, but again, stated that he could not
2200recall if he had a discussion with someone in the MayorÔs Office , or observed
2214something written concerning the MayorÔs Office seeking the documentation, and
2224requested (during the final hearing) if he could consult with another city employee to
2238confirm this. 1 The undersigned finds that Mr. LibrothÔs testimony was unclear and
2251confusing on this important point.
225622 Despite this uncertainty, Mr. Libroth stated that Mr. Daniels failed to follow
2269Procedure 603, in particular, Ñ[c]ompetition and proper documentation.Ò He f urther
2280testified that the Ñthree documented quotesÒ that would accompany this purchase, as
2292required under P - Card Procedure 603.09, would be found in the City of TallahasseeÔs
2307ÑOn Base system,Ò but for the purchase of NGP VAN, he could not find these three
2324quotes in the ÑOn Base system.Ò
233023. The undersigned has reviewed Procedure 603, and has found no requirement
2342that a user of a p - card include the required three documented quotes in the City of
2360TallahasseeÔs ÑOn Base system.Ò To the contrary, in a Procedure 603 subsection
2372entitled ÑDocumentation Retention Requirements,Ò Procedure 603 states:
2380A filing system that promotes quick and easy retrieval is
2390required. One method is to attach all supporting
2398documentation to a copy of the cardholderÔs monthly
2406statement . However, any method that is consistent with
2415departmental procedures and maintains an adequate
2421retrieval system is satisfactory.
242524. Mr. Daniels testified that, in 2015, he received quotes from three other
2438vendors that provided CRM services: Salsa Labs; Mailchimp; and iConstituent. With
2449respect to iConstitutent, Mr. Daniels stated that he utilized a free trial of its CRM
2464system. Mr. Daniels provided evidence, in the form of a Ñscreen shot,Ò of
2478communications with a representative from Salsa Labs, one of w hich was entitled
2491ÑPricing Request Lead Alert.Ò He also provided more written substantial evidence
25021 That other city employee was Matt Lutz, who the Commission did not timely list or disclose as a
2521witness, as required under the August 20, 2020, Order of Pre - hearing Instructions. However, during
2537the final hearing, and during i ts case - in - chief, the Commission attempted to call Mr. Lutz as a
2558witness, claiming he was a rebuttal witness. The undersigned declined to allow Mr. Lutz to be called
2575as a rebuttal witness during the CommissionÔs case - in - chief, and the Commission did not la ter attempt
2595to call Mr. Lutz after Mr. Daniels rested.
2603that reflected the trial period, and cost, for the iConstituent service. Mr. Daniels did
2617not provide any written evidence concerning a ÑquoteÒ from Mailchi mp, but testified
2630that he received one. However, Mr. Libroth testified that he could not recall whether
2644he had a verbal discussion with the MayorÔs Office , or saw some type of written
2659documentation with respect to other CRM systems, concerning this issue, while
2670responding to a public records request, which occurred in 2017.
268025. Mr. Daniels further testified that he maintained these ÑquotesÒ in the MayorÔs
2693Office , and ultimately determined that NGP VAN was Ñone of the most cost effectiveÒ
2707CRMs that the Mayo rÔs Office reviewed, and decided to use it as a CRM. The
2723undersigned finds Mr. DanielsÔs belief that he followed Procedure 603 credible, while
2735Mr. LibrothÔs testimony on the issue of whether Mr. Daniels followed Procedure 603
2748in procuring and paying for NG P VAN with a p - card unclear, confusing, and at least
2766with respect to the retention of the written quotes, contrary to Procedure 603. 2
278026. The Commission also questioned Mr. Libroth concerning other, unrelated
2790p - card transactions that Mr. Daniels made, as Ñsimilar fact evidenceÒ under
2803sections 90.404(2) and 120.57(1)(d) , Florida Statutes , to establish that Mr. DanielÔs
2814used the p - card for other unauthorized purchases, and to show intent or indifference
2829with respect to non - official City government related e xpenses. And again, Mr.
2843LibrothÔs testimony was less than clear on this issue. For example, when asked if it
2858was appropriate to use the p - card for charitable donations Ð something the
2872Commission contends
2874Mr. Daniels did, improperly Ð he stated that as long as it was not an organization
2890that had been red - lined as an unacceptable vendor, it would be an allowable charge
2906(unless determined otherwise during an audit). When asked about a p - card charge
2920related to an expense for a political protest or rally, Mr. Libro th stated that he did
29372 In its P roposed R ecommended O rder, the Commission contends that Mr. Daniels violated Procedure
2954603Ôs requirement that Ñ[p]urchase card purchases of assets that exceed $1000 must be recorded in the
2970f ixed asset system to ensure that the item is properly safeguarded. Departmental representatives
2984shall prepare the appropriate documents to ensure the item is added to the fixed asset inventory.Ò The
3001Commission presented no evidence at the final hearing whe ther the NGP VAN CRM was recorded in
3018the City of TallahasseeÔs Ñfixed asset systemÒ and did not question either Mr. Daniels or Mr. Libroth
3035on this contention.
3038not know, an d could not find it during a quick review of Procedure 603. When asked
3055if he saw problems with the Mayor Ôs OfficeÔs use of the p - cards during this time
3073period, he stated, Ñat certain times, yes. I mean, I canÔt put my fing er on a particular
3091transaction . . . .Ò When asked on cross - examination about the p - card charges for
3109charitable donations (to organizations that allowed use of their facilities for
3120meetings), and for the Ñpolitical protest or rallyÒ (to rent a table and cha irs at an
3137event in the courtyard of the Florida Legislature), Mr. Libroth admitted that such
3150charges could comport with Procedure 603. And, with respect to issues the
3162Commission also raised concerning catering charges, Mr. Libroth admitted that if
3173such cha rges were later reimbursed with grant funds, then the charges were
3186appropriate, so long as proper procedures were followed, although he would prefer to
3199see Ñgood documentation.Ò
3202MayorÔs OfficeÔs Use of NGP VAN and Investigation
321027. Mr. Daniels and the Mayo r Ôs communications director, Jamie Van Pelt, were
3224the only two employees of the MayorÔs Office who had passwords, and thus access to,
3239the Mayor Ôs OfficeÔs NGP VAN account.
324628. The Mayor Ôs OfficeÔs NGP VAN subscription account resided in Ñthe cloud,Ò as
3261opp osed to the City of TallahasseeÔs servers.
326929. Mr. Daniels, and other employees of the MayorÔs Office , added individualÔs
3281contact information to the NGP VAN account in numerous ways. Beginning in
3293February 2015, the mayor had approximately 5,937 contact rec ords that were
3306migrated to the NGP VAN system. The MayorÔs Office also added contact information
3319to NGP VAN from any person who contacted the MayorÔs Office , as well as contact
3334information volunteered from individuals who attended various initiative events .
3344Additionally, the MayorÔs Office requested all of the email addresses from the City of
3358TallahasseeÔs utilities department, which Mr. Daniels believed would be residents of
3369or connected to the City of Tallahassee.
337630. During the course of Mr. DanielÔs emp loyment as Chief of Staff, the contact
3391list in the MayorÔs Office Ôs NGP VAN account grew to approximately 31,282
3405individual contacts.
340731. From the time period between February 2015 to the end of 2017, the MayorÔs
3422Office sent out 106 emails using NGP VANÔs CRM system to the individual contacts
3436in the NGP VAN system. These emails are numerous and varied. Many of these
3450emails included information concerning such initiatives from the MayorÔs Office as
3461the Longest Table, regular meetings of the Faith Leaders Net work, the Community
3474Summit on Children, the Tallahassee Innovation Partnership, and Tallahassee
3483Forward. At the final hearing, the Commission questioned Mr. Daniels and
3494Mr. Gillum concerning a small number of these and other emails, which will be
3508discusse d separately below. With respect to the categories of emails previously
3520mentioned, Mr. Daniels testified that the MayorÔs Office used these emails to
3532communicate the initiatives and work of the MayorÔs Office , and to Ñusher in . . . a
3549change of strategy fo r the city as a whole as it relates to how we engage with people
3568digitally[.]Ò
356932. In 2017, Mr. Daniels became aware of an internet blog post that raised
3583questions about the Mayor Ôs OfficeÔs use of NGP VAN for these emails. Soon
3597thereafter, he became aware of a press inquiry and then a public records request for
3612these emails. Mr. Daniels testified that he worked with the City of Tallahassee and
3626NGP VAN to ensure that all of the emails sent from the MayorÔs Office were
3641available for production. Mr. Daniels n oted that the database of individual contacts
3654in the NGP VAN CRM was also located in the C ity of Tallahassee Ôs server. He also
3672noted that he believed that most of the emails sent using the NGP VAN CRM were
3688also on the City of TallahasseeÔs server as well; as Mr. Daniels and other city
3703employees were recipients of these emails, these emails would necessarily be found
3715on the City of TallahasseeÔs server. Mr. Daniels also testified that the MayorÔs Office
3729often saved drafts of these emails on the City of Talla hasseeÔs server, prior to sending
3745them to the individual contacts through the NGP VAN.
375433. The undersigned finds that all of the records related to the Mayor Ôs OfficeÔs
3769use of the NGP VAN subscription between February 2015 and 2017 appear to have
3783been prod uced pursuant to (at least) a public records request and a law enforcement
3798subpoena, and were admitted into evidence in this proceeding. During the course of
3811this matter, the Commission did not file any pleadings with the undersigned that
3824indicated that it was unable to obtain any of documentation related to the NGP VAN
3839subscription, and, as discussed below, law enforcement did not appear to have any
3852issues procuring it from the city as well.
386034. On March 2, 2017, M r. Gillum reimbursed the City of Tallahass ee for the C ity
3878of Tallahassee Ôs cost of the NGP VAN CRM subscription, plus an additional amount
3892to cover a credit card fee. At that time, Mr. Gillum had announced his intention to
3908run for Governor of Florida. Mr. Gillum explained:
3916I purchased the system NGP and all of its data when I Ï
3929when this became an issue Ï it wasnÔt an issue until I guess
3942someone had made a complaint, and when this thing got
3952into sort of controversial territory, I purchased the system,
3961and you know, I havenÔt touched it again. I ne ver re -
3974subscribed or anything like that.
397935. Mr. Gillum stated that he did not use the M ayorÔs OfficeÔs NGP VAN CRM for
3996his gubernatorial campaign. He further stated that his gubernatorial campaign
4006advisers suggested that he purchase the M ayorÔs OfficeÔs NGP VAN CRM because:
4019It was an expense that I made for the benefit of the fact
4032that my folks wanted to move on to another issue and
4043didnÔt want me going out there having to make the case as
4055to why a contact management system was necessary for the
4065Office o f the Mayor in the eighth largest city in the third
4078largest state in all of America.
408436. On March 6, 2017, the State AttorneyÔs Office of the Second Judicial Circuit
4098received a complaint that Mr. Gillum had committed grand theft and Ñofficial
4110misconduct b y falsifying official document or recordÒ while serving as m ayor of
4124Tallahassee. The State Attorney referred this matter to the Leon County SheriffÔs
4136Office (LCSO), who assigned this matter to Sergeant Epstein, who at that time was a
4151detective with LCSO.
41543 7. Sergeant Epstein testified that he obtained records from both the City of
4168Tallahassee (via subpoena) and NGP VAN (via an electronic search warrant),
4179concerning Mr. GillumÔs time as m ayor of Tallahassee. He received roughly 3500
4192emails from NGP VAN, as w ell as payment records, and a contact list. He also
4208received a large number of documents from the City of Tallahassee, including p - card
4223records, and approximately 1,628 emails. 3 He then reviewed these emails under the
4237ÑscopeÒ of Ñwere there elements of gra nd theft, and were there any elements for
4252official conduct.Ò He further looked at how the MayorÔs Office used the NGP VAN
4266system, and whether Ñthere was any political advertisement sent through that
4277program during the time frame that the city was paying fo r it.Ò
429038. Sergeant Epstein also analyzed the 31,282 contacts within the Mayor Ôs OfficeÔs
4304NGP VAN CRM. Of these contacts, Sergeant Epstein confirmed that 5,626 contained
4317the word ÑTallahasseeÒ in the ÑcityÒ field of the contact list, or had a zip code
4333asso ciated with Leon County, and concluded that this number of contacts were
4346Tallahassee residents. When he analyzed contacts that identified anything other
4356than ÑTallahasseeÒ in the ÑcityÒ field of the contact list, he found 2,083 contacts that
4372he concluded w ere not Tallahassee residents. Another 23,370 contacts did not contain
4386anything in the ÑcityÒ field of the contact list, or an associated zip code; Sergeant
4401Epstein determined that these contacts had an Ñunknown location.Ò
441039. Sergeant Epstein looked at em ails that were sent from the MayorÔs Office
4424using NGP VAN Ð through comparing the emails produced by the City of Tallahassee
4438and NGP VAN Ð and verified that the MayorÔs Office sent a total of 106 emails using
4455NGP VAN. Sergeant Epstein testified:
4460The majority of those emails were around city events Long
4470Table, I think the 1,000 Mentor program, just different
4480community service programs that when you Ð and I read
4490every single one of those fliers; of the 106, only four were
4502identified as being political in nature.
45083 Sergeant Epstein explained that the subpoena to the City of Tallahassee requested emails with
4523ÑNGP VANÒ in the email; in response, he received some Ñrandom political advertisementsÒ unrelated
4537to Mr. Gillum in which a political candidate had utilized NGP VAN for that candidateÔs race, and to
4555which a city employee had subscribed, which he explained was a reason for the relatively large
4571number of responsive emails (compared to the 106 NGP VAN - utilized emails sent from the mayorÔs
4588office). However, Sergeant Epstein stated that the 106 emails received from NGP VAN matched the
4603same 106 emails received fr om the City of Tallahassee.
461340. Sergeant Epstein stated that he turned these four emails he identified as
4626being Ñpolitical in natureÒ to the state attorney for consideration by a grand jury. 4
4641These four emails can be described as follows:
4649a. A n email that stated ÑJoin Vice President Joe Biden and Dr. Jill Biden in
4665Tallahassee[,]Òfor a free event would take place at Florida A&M University, with a
4679further message from Mr. Gillum touting this event as the last major Ñget out the
4694voteÒ effort in Tallahassee;
4698b. A n email from Mr. Gillum st ating that he will be representing Florida at the
4715Democratic National Convention in a speaking role, and included a link to an article
4729in the Tallahassee Democrat;
4733c. A n email from Mr. GillumÔs wife, R. Jai Gillum, stating that Mr. Gillum was the
4750only Flor idian to have a speaking role at the Democratic National Convention, that
4764she was proud of him, and provided a link to a video of that speech, as well as
4782excerpts from several news articles about Mr. GillumÔs speech; and
4792d. A 2015 invitation to ÑJoin Us fo r an Evening With a Special Guest,Ò indicating
4809that the Ñspecial guestÒ was ÑUnited States Senator Bill NelsonÒ and ÑChairwoman
4821Allison Tant,Ò that this event was chaired by ÑFlorida Democratic Party Vice Chair &
48364 Sergeant Epstein relied on the definition of Ñpolitical advertisementÒ that he found in the Leon
4852County Supervisors of Elections handbook, which referenced section 106.011(15) , Florida Statutes , in
4864making this determination. S ection 106.011(15) provides:
4871ÑPolitical advertisementÒ means a paid expression in a communications
4880medium prescribed in subsection (4), whether radio, television,
4888newspaper, magazine, periodical, campaign literature, direct mail, or
4896display or by means ot her than the spoken word in direct conversation,
4909which expressly advocates the election or defeat of a candidate or the
4921approval or rejection of an issue. However, political advertisement does
4931not include:
4933(a) A statement by an organization, in existence before the time during
4945which a candidate qualifies or an issue is placed on the ballot for that
4959election, in support of or opposition to a candidate or issue, in that
4972organizationÔs newsletter, which newsletter is distributed only to the
4981members of that or ganization.
4986(b) Editorial endorsements by a newspaper, a radio or television
4996station, or any other recognized news medium.
5003Tallahassee Mayor Andrew Gillum,Ò that the event was in support of the Florida
5017Democratic Party, and which provided various monetary sponsorship levels for this
5028event.
502941. Sergeant EpsteinÔs report of investigation included the following conclusion:
5039Over the course of this investigation the follow ing was
5049learned. Andrew Gillum originally purchased the NGP
5056VAN program for use in his campaign for City
5065Commissioner. After his election, then - City Commissioner
5073Gillum did not utilize the NGP VAN software program as a
5084CRM tool while on the City Commission . In 2014, City
5095Commissioner Gillum again utilized the NGP VAN
5102program during his campaign for Mayor of Tallahassee.
5110After winning the election and being sworn into office,
5119Mayor Gillum along with Chief of Staff Daniels made the
5129decision to use the NGP VAN program in the mayorÔs office
5140as a CRM. The decision was made by Chief of Staff Daniels
5152È to use the NGP VAN program in the mayorÔs office as a
5165CRM. The decision was made by Chief of Staff Daniels to
5176initially pay for this program out of the converted off ice
5187account, then out of the mayorÔs office budget. The use of
5198this program as a CRM was widely known in the mayorÔs
5209office and was utilized as a contact database list. Based on
5220the evidence provided, the fundraising component built
5227into the NGP VAN progra m was not utilized in the mayorÔs
5239office. Obtained documents suggest, Chief of Staff Daniels
5247did evaluate other CRM vendors (Salsa Labs, Mailchimp,
5255iConstituent), but ultimately decided to stay with NGP
5263VAN due to familiarity with the program. Of the 106 m ass
5275emails sent through the NGP VAN program while it was in
5286the MayorÔs Office, four emails were identified as Ñpolitical
5295advertisement.Ò In his testimony Mayor Gillum
5301acknowledges that one of the four emails should not have
5311been sent out through the NGP V AN program and labels
5322the decision a Ñhuman error.Ò Mayor Gillum continued to
5331support his decision to use the NGP VAN program in the
5342mayorÔs office as a CRM, however Mayor Gillum made the
5352decision to reimburse the City of Tallahassee because by
5361his own adm ission, he did not want this to be an issue in
5375his run for the governorÔs office.
538142. On August 7, 2017, the State Attorney presented the criminal complaint to the
5395grand jury, to determine whether Mr. Gillum committed the crimes of grand theft or
5409official misconduct Ñby paying for this software with public funds when he believed
5422they served no public purpose to the taxpayer.Ò On that same date, the grand jury
5437issued a No True Bill Presentment, and made numerous findings, including:
5448The software here was o nly utilized as a CRM or Client
5460Relations Management System. Such a system is
5467commonly used in government and industry to manage
5475communications with clients or constituents. NGP Van [sic]
5483software also holds the ability to track responses and assist
5493in fun draising. There is no evidence that this fundraising
5503option was utilized during the relevant period.
5510* * *
5513The investigation never revealed any evidence of public
5521records being destroyed, altered, or mutilated.
5527Furthermore, there is no evidence of advant age or
5536detriment to any person through manipulation of public
5544records.
5545* * *
5548We conclude that governmental bodies at all levels spend
5557vast monies communicating to their constituents as so the
5566use of this software to announce city affairs does not
5576constit ute a crime. While the investigation shows that this
5586software was capable of fundraising and other activities
5594that might not serve a legitimate interest, the only way it
5605was utilized was as a client relations management system
5614distributing mass emails. The wisdom or waste of
5622governmental officials in deciding which tools to use is a
5632political issue and not one for criminal prosecution.
5640* * *
5643Finally, we decide whether this governmentally leased
5650software was used for personal or political purposes outside
5659the scope of legitimate communication with constituents.
5666We find it was. There is no question that the advertisement
5677for Florida DEMS fundraising was outside the duties of the
5687Mayor of Tallahassee and served no public interest.
5695We find the other three ema ils more questionable. While
5705the investigator concluded they were political speech, we
5713are not as sure. One any mayorÔs duties is to be the City of
5727TallahasseeÔs representative when interacting with other
5733political leaders. Whether speaking at the Democrat ic
5741National Committee [sic] or introducing the current Vice
5749President of the United States, the voters of Tallahassee
5758chose Mayor Gillum to be the person invited. The
5767dissemination of his appearance at each may constitute an
5776appropriate use of the software .
5782* * *
5785Two persons, Jamie Van Pelt and Dustin Daniels, had the
5795password for the system. È Hence, only these staffers
5804could hold criminal liability for inappropriately sending out
5812political emails. The system was lawfully utilized to
5820communicate the publ ic actions of Mayor Gillum. To be
5830guilty of misappropriation, the State would have to prove
5839that these staffers had a criminal intent to steal when they
5850utilized this system to distribute each of these questionable
5859emails. We donÔt find such evidence. Thes e men sent 102
5870emails announcing the MayorÔs Longest Table and the
5878Faith Leadership Network. Our issue is when they also
5887announced the MayorÔs participation and support of
5894candidates and fundraising. We find that a less than 4%
5904error rate in determining wh ether the Mayor was acting in
5915furtherance of his position as Mayor, or as a private
5925political fundraiser, cannot support a conclusion of criminal
5933intent.
593443. No criminal charges have been filed against Mr. Daniels, Mr. Gillum, or any
5948other person involved with this criminal investigation.
595544. In April 2018, Mr. Daniels resigned from his position as Chief of Staff and
5970declared his candidacy for Mayor of Tallahassee. Mr. Daniels did not take or use any
5985of the information from the M ayorÔs OfficeÔs NGP VAN CRM , nor did he use this
6001information in his unsuccessful run for mayor.
600845. The Commission correctly notes, in its Proposed Recommended Order , that its
6020scope in this proceeding is different than the grand juryÔs scope.
603146. With respect to three of the four em ails that were the subject of the criminal
6048investigation, Mr. Daniels offered credible testimony as to his intent in sending these
6061emails using the Mayor Ôs OfficeÔs NGP VAN system. For example, with respect to the
6076email concerning then - Vice President Biden Ôs visit to FAMU, he stated that the Vice
6092PresidentÔs visit to Tallahassee was a Ñbig deal,Ò that he was visiting a Ñmajor
6107institution of public learning in this community,Ò and that Ñcitizens deserved to know
6121that t his was happening.Ò With respect to the two emails concerning Mayor GillumÔs
6135speech at the Democratic National Convention, he stated that Ñanything the mayor
6147was involved with in a leadership capacity, in his official capacity as mayor, then
6161that was something that was fair g ame for citizens to both know about an d engage
6178with[,]Ò and that Ñhe was invited as m ayor of the City of Tallahassee, he represented
6195the city on a very large, national Ð maybe international stage, and we felt like that Ð
6212again, it was worthwhile for folks to know about that.Ò The undersigned credits
6225Mr. DanielsÔs explanation for these three emails, and finds that his sending, or
6238authorizing to send, these emails using the Mayor Ôs OfficeÔs NGP VAN CRM was
6252consistent with the performance of his public duties as chief of staff, and did not
6267otherwise violate Florida law.
627147. With respect to the remaining email that was the subject of the criminal
6285investigation, which was the fundraising event held to benefit the Florida Democratic
6297Party Ð which Mr. Gillum admitted to Sergeant Epstein wa s a Ñhuman errorÒ Ð
6312Mr. Daniels testified that he has some ÑremorseÒ because it had Ñbecome a
6325distraction,Ò but also stated, ÑI still believe that the mayor was involved in his official
6341capacity, and at the time it made sense to me that this was something t hat the
6358citizens of Tallahassee ought to know about.Ò The undersigned finds Mr. DanielsÔs
6370justification for this particular email to be less than credible; a person of
6383Mr. DanielsÔs position Ð the Chief of Staff to the mayor of a large Florida city Ð should
6401k now that sending an advertisement for a partisan fundraiser to contacts and
6414constituents from a public email was inconsistent with the performance of his public
6427duties and would be violative of Florida law.
643548. In its Proposed Recommended Order , the Commis sion details many other
6447emails ( i.e., other than the four emails that Sergeant Epstein identified as Ñpolitical
6461in natureÒ in paragraph 40 above, and which the grand jury reviewed) sent from the
6476Mayor Ôs OfficeÔs NGP VAN system that it contends are Ñself ag grandizing,Ò that
6491identify Mr. Gillum as the m ayor of the City of Tallahassee, and that (at least some)
6508include the seal of the M ayorÔs O ffice, which do not constitute a public purpose. The
6525Advocate questioned Mr. Daniels about one of these ÑotherÒ emails, which advertised
6537the opening of the Edison restaurant; Mr. Daniels stated that the Edison restaurant
6550was formerly the City of TallahasseeÔs old electricity building, that it was a project
6564that utilized Community Redevelopment Agency funds, and that it was appropriate
6575to alert the public of its grand opening. And, at the final hearing, Mr. Daniels
6590mentioned one email concerning Mr. Gillum receiving the Small Business Advocate
6601award from the Conference of Mayors, and an event at City Hall commemorating this
6615award. And, as found previously in paragraph 31 above, Mr. Daniels and Mr. Gillum
6629testified as to the emails that included information initiatives from the MayorÔs
6641Office , such as the Longest Table, regular meetings of the Faith Leaders Network,
6654the Commun ity Summit on Children, the Tallahassee Innovation Partnership, and
6665Tallahassee Forward.
666749. The Commission did not question Mr. Daniels Ð or any witness Ð at the final
6683hearing concerning these other ÑunexaminedÒ emails it argues in its Proposed
6694Recommended Or der do not constitute a public purpose, except for what is discussed
6708above. Other than successfully moving into evidence all 106 emails sent from the
6721NGP VAN system in the MayorÔs Office , the Commission, which h as the burden in
6736this matter, presented no co mpetent, substantial evidence on these other,
6747unexamined emails from which the undersigned could make a factual finding that
6759Mr. Daniels acted corruptly in the sending of these other, unexamined emails. 5
67725 Nor should a finding of corrupt intent be implied with respect to these other, unexamined emails. See
6790Robinson v. CommÔn on Ethics , 242 So. 3d 467, 471 n.4 (Fla. 1st DCA 2018).
6805Findings of Ultimate Fact
680950. Based on the foregoin g, the undersigned finds, as a matter of ultimate fact,
6824that the Commission did not prove, by clear and convincing evidence, that
6836Mr. DanielsÔs purchase of the NGP VAN subscription with the City of Tallahassee
6849p - card constituted a violation of section 11 2.313(6).
685951. Additionally, based on the foregoing, the undersigned finds, as a matter of
6872ultimate fact, that the Commission did not prove, by clear and convincing evidence,
6885that Mr. DanielsÔs use of the NGP VAN CRM constituted a violation of FloridaÔs
6899Sun shine Law, see chapter 119 , Florida Statutes , and thus, the commission did not
6913prove that the use of the NGP VAN CRM constituted a violation of
6926section 112.313(6).
692852. The undersigned finds, of the 106 mass emails sent from the M ayorÔs OfficeÔs
6943NGP VAN CR M system, the Commission proved, by clear and convincing evidence,
6956that one email Ð which is described in paragraph 40d. above, an invitation to a
6971fundraiser for the Florida Democratic Party, which listed Mr. Gillum as both ÑFlorida
6984Democratic Party Vice Cha irÒ and ÑMayor of Tallahassee,Ò and which listed various
6998contribution levels Ð constituted an improper use of his and the M ayorÔs OfficeÔs
7012resources . The dissemination of that email was not consistent with the performance
7025of his public duties, as a partisan fundraising email from the M ayorÔs OfficeÔs public
7040account constitutes an improper political advertisement, and thus constituted a
7050violation of section 112.313(6).
705453. With respect to the remaining 105 mass emails sent from the M ayorÔs OfficeÔs
7069NGP VAN CR M, the undersigned finds, as a matter of ultimate fact, that the
7084Commission did not prove, by clear and convincing evidence, that Mr. DanielsÔs mass
7097emailing of these various other emails constituted a violation of section 112.313(6).
7109C ONCLUSIONS OF L AW
71145 4. The Division has jurisdiction over the subject matter and the parties to this
7129proceeding in accordance with sections 120.569 and 120.57(1).
713755. Section 112.322 and Florida Administrative Code Rule 34 - 5.0015 authorize
7149the Commission to conduct investigat ions and to make public reports on complaints
7162concerning violations of chapter 112 , part III , the Code of Ethics for Public Officers
7176and Employees.
717856. The burden of proof, absent a statutory directive to the contrary, is on the
7193Commission, the party asser ting the affirmative of the issue of these proceedings.
7206DepÔt of Transp. v. J.W.C. Co., Inc., 396 So. 2d 778 (Fla. 1st DCA 1981); Balino v.
7223DepÔt of Health & Rehab. Servs., 348 So. 2d 349 (Fla. 1st DCA 1977). In this
7239proceeding, it is the Commission, throu gh its Advocate, that is asserting the
7252affirmative: that Mr. Daniels violated section 112.313(6). Commission proceedings
7261which seek recommended penalties against a public officer or employee require proof
7273of the alleged violation(s) by clear and convincing evidence. See Latham v. Florida
7286CommÔn on Ethics, 694 So. 2d 83 (Fla. 1st DCA 1977). Therefore, the Commission has
7301the burden of establishing, by clear and convincing evidence, the elements of Mr.
7314DanielsÔs violations.
731657. Clear and convincing evidence Ñr equires more proof than a Ópreponderance of
7329the evidenceÔ but less than Óbeyond and to the exclusion of a reasonable doubt.ÔÒ In re
7345Graziano , 696 So. 2d 744, 753 (Fla. 1997). The Florida Supreme Court further held:
7359This intermediate level of proof entails both a qualitative
7368and quantitative standard. The evidence must be credible;
7376the memories of the witnesses must be clear and without
7386confusion; and the sum total of the evidence must be of
7397sufficient weight to convince the trier of fact without
7406hesitancy. Clear and convincing evidence requires that the
7414evidence must be found to be credible; the facts to which
7425the witnesses testify must be distinctly remembered; the
7433testimony must be precise and lacking in confusion as to
7443the facts in issue. The evidence mu st be of such a weight
7456that it produces in the mind of the trier of fact a firm belief
7470or conviction, without hesitancy, as to the truth of the
7480allegations sought to be established.
7485In re Davey , 645 So. 2d 398, 404 (Fla. 1994)(quoting Slomowitz v. Walker, 429 So. 2d
7501797, 800 (Fla. 4th DCA 1983)).
750758. Section 112.313(6), provides:
7511MISUSE OF PUBLIC POSITION. Ð No public officer,
7519employee of an agency, or local governmental attorney
7527shall corruptly use or attempt to use his or her official
7538position or any prop erty or resource which may be within
7549his or her trust, or perform his or her official duties, to
7561secure a special privilege, benefit, or exemption for himself,
7570herself, or others. This section shall not be construed to
7580conflict with s. 104.31.
758459. Section 112.312(9) defines ÑcorruptlyÒ as follows:
7591ÑCorruptlyÒ means done with a wrongful intent and for the
7601purpose of obtaining, or compensating or receiving
7608compensation for, any benefit resulting from some act or
7617omission of a public servant which is inconsi stent with the
7628proper performance of his or her public duties.
763660. Courts have provided further direction on what constitutes acting ÑcorruptlyÒ
7647under section 112.313(6). In Blackburn v. Commission on Ethics, 589 So. 2d 431, 434
7661(Fla. 1st DCA 1991), the F irst District held that to satisfy the ÑcorruptlyÒ statutory
7676element, the Commission must prove that a respondent acted Ñwith reasonable notice
7688that her conduct was inconsistent with the proper performance of her public duties
7701and would be a violation of t he law or code of ethics in part III of chapter 112.Ò; S ee
7722also Siplin v. CommÔn on Ethics, 59 So. 3d 150, 151 - 52 (5th DCA 2011).
773861. To establish a violation of section 112.313(6), the Commission must prove, by
7751clear and convincing evidence, that:
7756a. Mr. Daniels is or was a public officer or employee;
7767b. Mr. Daniels: (i) used or attempted to use his official position or any property or
7783resources within his trust; or (ii) performed his official duties;
7793c. Mr. DanielsÔs actions must have been taken to secure a special privilege,
7806benefit, or exemption for himself or others; and
7814d. Mr. Daniels must have acted corruptly, that is, with wrongful intent and for the
7829purpose of obtaining any benefit, which is inconsistent with the proper performance
7841of his public dut ies.
784662. The evidence established that Mr. Daniels, who served as chief of staff for the
7861City of Tallahassee MayorÔs Office , was, at all relevant times, an Ñemployee of an
7875agencyÒ as provided in sections 112.313(2) and (6), and was thus a public employee
7889s ubject to the requirements of chapter 112, part III, at the time of the alleged
7905violations.
790663. The evidence also established that Mr. Daniels, by virtue of his position as
7920chief of staff, had access to certain property or resources of the City of Tallahas see,
7936such as the p - card, computers, internet service, and employees. Additionally, as chief
7950of staff, Mr. Daniels performed his official duties, which included advocating on
7962behalf of the mayorÔs initiatives, in sending mass emails utilizing the NGP VAN
7975CR M.
7977Purchase of NGP VAN
798164. The undersigned concludes that the evidence failed to establish, by clear and
7994convincing evidence, that the MayorÔs Office Ôs purchase of the NGP VAN subscription
8007for use as a CRM Ð either through the use of the office account or la ter with the p -
8028card Ð was done to secure a special privilege or benefit for Mr. Daniels or the MayorÔs
8045Office , or that Mr. Daniels acted corruptly. Both Mr. Daniels and Mr. Gillum credibly
8059testified that NGP VAN was selected as a CRM to better engage with in dividuals
8074concerning various initiatives from the MayorÔs Office , which allowed for more
8085accountability.
808665. The Commission also failed to establish, through clear and convincing
8097evidence, that Mr. DanielsÔs purchase of the NGP VAN subscription, and his us e of
8112the p - card to pay for the NGP VAN subscription, violated Procedure 603 or the City
8129of TallahasseeÔs record documentation requirements. Mr. DanielsÔs credible
8137testimony established that he reasonably believed the purchase of the NGP VAN
8149subscription, a nd subsequent use of the p - card to pay for it, was consistent with city
8167procurement policies, while Mr. Libroth offered unclear and confusing testimony on
8178this issue.
818066. Additionally, the evidence presented at the final hearing established that the
8192MayorÔ s Office only used the NGP VAN subscription as a CRM for mass emails, and
8208not for any other purpose, such as fundraising, and that neither Mr. Daniels nor Mr.
8223Gillum subsequently used any of the contacts from the NGP VAN CRM contact list
8237for their races fo r mayor or governor. Mr. DanielsÔs purchase and use of a CRM to
8254improve the ability to provide communications from the MayorÔs Office did not create
8267a special privilege, benefit, or exemption for himself or others, and was not done so
8282corruptly.
82836 7 . Despit e the CommissionÔs contentions to the contrary, the undersigned cannot
8297conclude that the MayorÔs OfficeÔs transfer from his campaign account to an office
8310account to pay for some of the NGP VAN subscription was violative of Florida law,
8325and, therefore, cann ot conclude that it constitute d misuse of position under section
8339112.313(6). Section 106.141(5)(d) plainly authorizes such a transfer, and section
8349106.141(5) further provides that such funds Ñshall be used only for legitimate
8361expenses in connection with th e candidateÔs public office.Ò With the exception of one
8375email, to be discussed further below, the undersigned concludes that the use of the
8389office account, and later, the use of the p - card, to purchase and pay for the NGP VAN
8408subscription as a CRM, constit uted a legitimate public purpose, as opposed to an
8422improper purpose that created a special privilege, benefit, or exemption for Mr.
8434Daniels or others.
8437Use of NGP VAN
844168 . The Commission failed to establish, through clear and convincing evidence,
8453that Mr. Da niels Ôs use of NGP VAN constituted a violation of the FloridaÔs public
8469records law, see chapter 119, and thus, a violation of section 112.313(6). Mr. DanielsÔs
8483credible testimony established that the emails sent using the NGP VAN CRM were
8496located on the Ci ty of TallahasseeÔs server. Additionally, Sergeant EpsteinÔs
8507testimony and investigation confirmed that all of the emails, as well as the list of
8522contacts, located with the City of Tallahassee (and provided through a subpoena) ,
8534matched those emails and con tacts provided by NGP VAN pursuant to an electronic
8548search warrant.
855069 . A contention of the Commission is that the MayorÔs Office set up the NGP
8566VAN CRM to establish a contact list that did not necessarily consist of local
8580constituents, and to send out Ñse lf aggrandizingÒ messages to these contacts that
8593were intended to further Mr. GillumÔs candidacy for Governor, which did not serve a
8607public purpose. The CommissionÔs attempt to Ñconnect the dotsÒ to establish this
8619contention was unsuccessful. The evidence established that Mr. Gillum did not
8630transfer, or otherwise use, the MayorÔs OfficeÔs NGP VAN subscription in his
8642subsequent campaign (and, nor did Mr. Daniels use it in his campaign for mayor).
8656The evidence established that the MayorÔs Office only used the NGP VAN system as
8670a CRM, and did not utilize any available Ñadd - insÒ that might be considered more
8686political in nature.
86897 0 . And, with the exception of one email (to be discussed below), Mr. DanielsÔs
8705sending, or authorizing to send, the mass emails sent u sing the MayorÔs OfficeÔs NGP
8720VAN CRM from the MayorÔs Office , that were examined at final hearing, was
8733consistent with the performance of his public duties as chief of staff, and did not
8748otherwise violate Florida law. With respect to 105 of 106 of these e mails sent using
8764the NGP VAN CRM, the undersigned concludes that the Commission failed to
8776establish, by clear and convincing evidence, that Mr. Daniels Ôs actions secured a
8789special privilege, benefit, or exemption for himself or others, and was not done so
8803corruptly. 6
88056 The undersigned has not ignored the CommissionÔs argument concerning its advisory opinion CEO
881991 - 37, which considered whether a city commissioner would encounter a prohibited conflict of interest
8835if he were to mail an informational newsletter to constituents, where a private organization would pay
8851for the cost of mailing. In CEO 91 - 37, the Commission suggested that the newsletterÔs stationery
8868would contain the City of TallahasseeÔs logo, and to advised the ci ty commissioner to include a
8885disclaimer indicating no public funds were used to pay the cost of the newsletter to avoid a violation of
8904section 112.313(6). The undersigned finds this advisory opinion distinguishable from the case at bar,
8918as (a) the examined emails in the case at bar were not newsletters, but instead, as found by the
8937undersigned, concerned initiatives in the M ayorÔs O ffice and other events that had a public purpose
8954(with the exception of one email); and (b) the advisory opinion was provided i n the context of gift laws .
8975S ee §§ 112.312(9) and 112.3148 , Fla. Stat .
89847 1 . In clear contrast to the 105 emails discussed above , Mr. Daniels, as chief of
9001staff, oversaw the sending of an email, utilizing the MayorÔs OfficeÔs NGP VAN CRM,
9015that was an invitation to a 2015 fundraising event to support the Florida Demo cratic
9030Party, that was chaired by ÑFlorida Democratic Party Vice Chair & Tallahassee
9042Mayor Andrew Gillum,Ò which provided various monetary sponsorship levels for this
9054event. At this time, the MayorÔs Office account paid for the NGP VAN CRM
9068subscription. Se ction 106.141(5), which allows for a candidate to transfer funds from
9081a campaign account to an office account, expressly states that Ñ[a]ny funds so
9094transferred by a candidate shall be used only for legitimate expenses in connection
9107with the candidateÔs pu blic office.Ò Section 106.141(5) further provides that these
9119office account funds can be used to produce and mail various forms, so long as Ñsuch
9135correspondence does not constitute a political advertisement, independent
9143expenditure, or electioneering commu nication as provided in s. 106.011 . . . .Ò The
9158email invitation to a fundraiser for a political party , a political advertisement,
9170pursuant to section 106.011(15), cannot be considered to be a legitimate expense of
9183the MayorÔs Office . The undersigned conclu des that Mr. DanielsÔs overseeing of this
9197email constituted an improper use of his and the MayorÔs OfficeÔs resources, which
9210was not consistent with the performance of his public duties, and that Mr. Daniels
9224should have known that sending this particular e mail from the public office of the
9239mayor was violative of Florida law. Accordingly, the undersigned concludes that the
9251Commission established, by clear and convincing evidence, that this single email (out
9263of a total of 106), constituted a violation of sect ion 112.313(6).
9275Recommended Penalty
92777 2 . The penalties available for a former public employee who violated the Code of
9293Ethics include, pursuant to section 112.317(1)(d): (a) public censure and reprimand;
9304(b) a civil penalty not to exceed $10,000; and (c) re stitution of any pecuniary benefits
9321received because of the violation committed.
93277 3 . Neither the Code of Ethics or chapter 34 - 5, recognize any mitigating or
9344aggravating factors to consider when determining the appropriate penalty.
93537 4 . The Commission argues , in its Proposed Recommended Order , for a significant
9367civil penalty. The undersigned has reviewed the two cases it uses as comparison: In
9381re: Renee Lee , DOAH Case No. 11 - 6063EC (DOAH July 11, 2012) ; CommÔn on Ethics
9397Sep t . 12, 2019), which recommended a $5 ,000 fine, as well as a public censure and
9415reprimand; and In re: Stephan Carter, DOAH Case No. 16 - 3637EC (DOAH Jan. 3,
94302017 ; CommÔn on Ethics Mar. 15, 2017), in which the Commission recommended a
9443$10,00 0 fine, as well as a public censure and reprimand. In the two cases provided by
9461the Commission, the respondents used their positions to secure additional
9471compensation for themselves, in the forms of salary increases or severance packages.
94837 5 . In the instant matter, Mr. Daniels did not use his position for an y type of
9502pecuniary gain. Rather, the undersigned has concluded that one, out of a total of 106
9517emails from the MayorÔs Office that used the NGP VAN system, was improper, and
9531constituted a violation of section 112.313(6). The Commission concedes in its
9542Pro posed R ecommended O rder that restitution is not requested because the full cost
9557of the NGP VAN subscription was reimbursed to the City of Tallahassee. The
9570undersigned concludes that the two cases provided by the Commission do not provide
9583an appropriate bas is for its requested fine of $5,000.
95947 6 . The undersigned recommends the imposition of a $250 fine as the appropriate
9609penalty for Mr. DanielsÔs violation of section 112.313(6). This penalty effectively
9620addresses both the frequency and severity of this viola tion.
9630R ECOMMENDATION
9632Based upon the foregoing Findings of Fact and Conclusions of Law, the
9644undersigned hereby R ECOMMEND S that the Commission enter a final order finding
9657that Respondent, Dustin Daniels, violated section 112.313(6), and that Respondent
9667be s ubject to a $250 fine.
9674D ONE A ND E NTERED this 19th day of February, 2021 , in Tallahassee, Leon
9689County, Florida.
9691S
9692R OBERT J. T ELFER III
9698Administrative Law Judge
97011230 Apalachee Parkway
9704Tallahassee, Florida 32399 - 3060
9709(85 0) 488 - 9675
9714www.doah.state.fl.us
9715Filed with the Clerk of the
9721Division of Administrative Hearings
9725this 19th day of February, 2021 .
9732C OPIES F URNISHED :
9737Millie Wells Fulford, Agency Clerk Elizabeth A. Miller, Esquire
9746Florida Commission on Ethics Office of the Attorney General
9755Post Office Drawer 15709 The Capitol, Plaza Level 01
9764Tallahassee, Flo rida 32317 - 5709 Tallahassee, Florida 32399
9773Jennifer S. Blohm, Esquire Advocates for the Commission
9781Meyer, Brooks, Blohm & Hearn, P.A. Office of the Attorney General
9792P ost O ffice Box 1547 The Capitol, Plaza Level 01
9803Tallahassee, Florida 32302 Tallahassee, Florida 32399 - 1050
9811C. Christopher Anderson, III, Executive
9816Director and General Counsel
9820Florida Commission on Ethics
9824Post Office Drawer 15709
9828Tal lahassee, Florida 32317 - 5709
9834N OTICE OF R IGHT T O S UBMIT E XCEPTIONS
9845All parties have the right to submit written exceptions within 15 days from the date
9860of this Recommended Order. Any exceptions to this Recommended Order should be
9872filed with the agency that will issue th e Final Order in this case.
- Date
- Proceedings
- PDF:
- Date: 02/19/2021
- Proceedings: Recommended Order cover letter identifying the hearing record referred to the Agency.
- PDF:
- Date: 12/07/2020
- Proceedings: Unopposed Motion for Extension of Time to File Post-Hearing Submittal filed.
- Date: 12/01/2020
- Proceedings: Transcript of Proceedings (not available for viewing) filed.
- Date: 10/29/2020
- Proceedings: CASE STATUS: Hearing Held.
- Date: 10/28/2020
- Proceedings: Petitioner's Proposed Exhibits filed (exhibits not available for viewing).
- Date: 10/26/2020
- Proceedings: CASE STATUS: Motion Hearing Held.
- PDF:
- Date: 10/22/2020
- Proceedings: Notice of Telephonic Motion Hearing (motion hearing set for October 26, 2020; 10:00 a.m., Eastern Time).
- Date: 10/22/2020
- Proceedings: Respondent's and Joint Proposed Exhibits filed (exhibits not available for viewing).
- PDF:
- Date: 10/20/2020
- Proceedings: Respondent's Response in Opposition to Advocate's Motion in Limine or, in the Alternative, Notice of Intent to Introduce Evidence of Other Crimes, Wrongs, or Acts (Williams Rule) filed.
- PDF:
- Date: 10/19/2020
- Proceedings: Motion in Limine or, in the alternative, Notice of Intent to Introduce Evidence of other Crimes, Wrongs, or Acts (Williams Rule) filed.
- PDF:
- Date: 09/15/2020
- Proceedings: Respondent's Notice of Service of First Set of Interrogatories filed.
- PDF:
- Date: 08/20/2020
- Proceedings: Notice of Hearing by Zoom Conference (hearing set for October 29, 2020; 9:00 a.m.; Tallahassee).
Case Information
- Judge:
- ROBERT J. TELFER III
- Date Filed:
- 08/14/2020
- Date Assignment:
- 08/14/2020
- Last Docket Entry:
- 08/11/2021
- Location:
- Tallahassee, Florida
- District:
- Northern
- Agency:
- ADOPTED EXCEPT FOR PENALTY
- Suffix:
- EC
Counsels
-
Jennifer S Blohm, Esquire
Address of Record -
Millie Wells Fulford, Agency Clerk
Address of Record -
Elizabeth A. Miller, Esquire
Address of Record