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Division of Elections,

Petitioner,

v.

James J Boczar,

Respondent

STATE OF FLORIDA FLORIDA ELECTIONS COMMISSION

FINAL ORDER

Case No .. : FEC 95-053 DOSFEC 98-087-W

This cause came on to be heard at a formal hearing held before the Florida Elections

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Commission (Commission) on April 4, June 17, and August 11, 1997, in Tampa, Tallahassee,

and Orlando, Floiida. 1

For Division:

For Respondent:

APPEARANCES

Bar barn M. Linthicum, Esq .. Elections Advocate Room 2002, the Capitol Tallahassee, Florida 32399-0250

James J.. Boczar, Esq .. , pro se 1709 Flower Drive Sarasota, Florida 34239, and 4821 N.. Meridian Street Indianapolis, Indiana 46208; and

'With the passage of Chapter 97-13, LOF the Commission's strnctUie and membership have undergone substantial changes .. As a result thereof, and in an abundance of caution, the present Commisionmembers who were not members of the Commission dUiing 1997 have, before voting on the entry of the final order in this case, reviewed the transcripts of the proceedings before the Commission prior to the effective date of their appointments and have also reviewed all pleadings and exhibits admitted into evidence.

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Kenneth E. Brooten, Jr, Esq .. 631 West Fairbanks Avenue Winter Pruk, Florida 32789

Tracy l. Sumner, Esquire 1330 Thomasville Road I allahassee, Florida

STATEMENT OF THE ISSUES

1 .. Whether the Respondent violated Section 106.11 (3), Florida Statutes, by writing a

check for $12,282.50 from his campaign account without sufficient funds on deposit in his

account to pay the full amount of the check, to honor all outstanding checks, and to pay all

previously authorized but unpaid expenses.

2 .. Whether the Respondent violated Section 106 .. 07(5), Florida Statutes, by certifying

to the correctness of his campaign treasurer's report (CTR) that failed to list $38,265.56 worth of

in-kind contributions from the Florida Democratic Party (FDP)..

PRELIMINARY STATEMENT

On April 5, 1995, the Division of Elections (Division) filed a sworn complaint alleging

violations of Florida's election laws. The Division conducted an investigation to determine

whether the facts alleged in the complaint constituted probable cause to believe that the

Respondent violated Section 106 .. 07(5), Florida Statutes ..

On July 29, 1996, the staff of the Division drafted a Statement of Findings

recommending to the Commission that there was probable cause to believe that the Respondent

violated Sections 106 11(3) and 106 .07(5), Florida Statutes .. On August 9, 1996, the

Commission entered an Order of Probable Cause and on October 31, 1996, entered an Amended

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Order of Probable Cause, finding that there was probable cause to believe that the Respondent

violated Sections I 06.11 (3) and I 06 .. 07( 5), Florida Statutes.. The Respondent timely requested a

formal hearing and was noticed to appear before the Commission

At the formal hearing, the Division presented the 01al testimony of two witnesses and

offered six exhibits that were admitted into evidence.. The Respondent presented the testimony

of one witness and offered one exhibit The Commission also called one witness ..

At the formal hearing, the Respondent also made two oral motion to dismiss: the first

motion alleged that the Statement of Findings was inadequate as a matter of Jaw, because it did

not contain sufficient facts for the Commission to find probable cause .. The second motion to

dismiss alleged that the Commission's organization and procedures failed to adequately separate

its prosecutorial and judicial functions, resulting in a violation of due process .. The Commission

( DENIED both motions ..

During the hearing, the Division called the Respondent to testify .. 2 Respondent,

however, refused to testify claiming that he was protected from being called or from being forced

to testify against his will by his Fifth Amendment right against self-incrimination The

2 The Respondent has repeatedly asserted that he was never called as a witness by the Division .. This statement is incouect. While he never actually testified and was never subpoenaed to appear, he was announced as a Division witness at the April 4, 1997, portion of the hearing, (T 1-92) a fact that was confirmed by the Commission at the August 11, 1997, proceeding (T2-4) After an ol:Jjection was raised by Respondent to being called as a witness on April 4, based upon his perceived Fifth Amendment rights to decline to be called or to testify, the Commission ordered briefing on the issue and did not take any testimony from the Respondent The Respondent did not personally appear at the August 11 proceeding and, not being under subpoena, was under no obligation to appear and, of course, did not testify ..

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Commission recessed the heating and requested that the patties and the Commission's counsel

brief the issue ..

After reviewing the briefS and heating the azguments of counsel, the Commission

entered an order on July 11, 1997, finding that the proceedings before the Commission rue not

penal but rue remedial in nature and that the Respondent cannot refuse to testify if called and if

properly before the Commission. Respondent filed a Petition for Writ of Certiorazi from this

Order with the Second District Court of Appeal (Case# 97-03423) which was Denied by Order

dated Februazy 19,1998 ..

On October 10, 1997, after the heating was completed, the Respondent filed a third

Motion to Dismiss On October 20, 1997, the Division filed a Response and a Motion for

Attorney Fees asserting that the Respondent's Motion was factually and legally without merit

1, On October 31, 1997, the Commission issued an order that reserved ruling on the Respondent's

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third Motion to Dismiss until its meeting on December 12, 1997

Respondent's third Motion to Dismiss alleged (Motion at 1-6) that the Division has

engaged in improper "selective prosecution" for "political purposes." Respondent presented no

evidence upon which to base such a charge-even though he was been afforded complete rights of

discovery.. Despite the heavy burden necessazy to prove such a charge no iota of evidence upon

which such a claim can be supported has been proffored by Respondent.3

3In order to constitute a denial of equal protection the selective enforcement must be delibeiately based on an unjustifiable standazd such as race, religion or other arbitrazy classification .. Oyler v. Boles, 368 U.S 448, 82 S .. Ct 501, 7 L..Ed.2d 446 (1962); Bell v. State, 369 So2d 932 (Fla.1979); King v. State, 557 So.2d 899 (Fla .. 5th DCA 1990), rev. denied, 564 So.2d 1086 (Fla.1990). The mere failure to prosecute all offenders is not grounds for a claim of denial of equal protection . .!kll; see also Moss v. Hornig, 314 F2d 89 (2d CirJ963).

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Respondent also persisted in his third Motion in rearguing his position regarding the

applicability of the Fifth Amendment to his case (Motion at 6-8) and to his compelled testimony ..

The Commission had already ruled on this issue and finds that Respondent's continual rearguing

of the matte1 is inappropriate ..

Respondent also set fcnth in his third Motion certain allegations of "prosecutmial

misconduct" aveIIing that: (1) that the Division and its counsel had engaged in unethical

conduct by intentionally delaying prosecution of his case (Motion at 9); (2) the Division's

counsel had suborned the fabrication of a false affidavit and made false statements to the

Commission (Motion at 9-11); (3) the Division's counsel had intentionally withheld documents

fiom the Respondent and failed to notify him of a deposition (Motion at 11-12)..

Respondent's allegations of"prosecutmial misconduct" are devoid of any evidentiaiy

( foundation and include scmrilous attacks on the Division's counsel's ethics without any

legitimate predicate 4

4 The motion includes the use of a scatological term and accuses the Division's counsel of criminal conduct, to whit, the suborning of perjmy .. This was not the first use of grossly inappropriate language by Respondent in his pleadings and in his communications with the Commission (see lette1 of August 21, 1996 attached to the Division's Response to the third Motion to Dismiss). These types of unprofessional and unfounded statement has been consistently condemned and sanctioned by comts when encountered, see Martin v. Marko, 651 So2d 819 (Fla .. 4th DCA 1995), Weiss v. Trust Under Will of Pollak, 595 So..2d 1035 (Fla .. 3rd DCA 1992).. Such conduct is even more unacceptable when engaged in by a member of the bar­as is Respondent; The Florida Bar. In re Shimek, 284 So2d 686 (FlaJ973)..

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The Division's Response to Respondent's Motion to Dismiss at J-16 adequately

rebutted and refuted the allegations and fully set out the inapprop1iate nature of Respondent's

third Motion. The Commission fully adopts and suppoxts the Division's position-as much ofit

comes from the records of the Commission's previous actions .. The Commission finds that the

Respondent's allegations are meritless and scuxrilous, are unsuppo1ted by the facts or the Jaw,

and constitute an abuse of the 1ight to file pleadings ..

The Division sought an award of attomeys fees and costs for the attomey time and

litigation costs which were expended in responding to the third Motion to Dismiss .. The statuto1y

basis fo1 the Motion for Attomeys Fees is found in the provisions of Section 120 . .569(2)(c),

Florida Statutes, which provides that:

All pleadings, motions, or other papers filed in the proceeding must be signed by the paxty, the paxty's attomey, or the paxty's qualified representative.. The signature constitutes a certificate that the person has read the pleading, motion, 01 other pape1 and that, based upon reasonable inquiiy, it is not inte1posed for any improper puxposes, such as to haxass or to cause unnecessaxy delay, or fox frivolous puxpose or needless increase in the cost of litigation.. If a pleading, motion, or othex paper is signed in violation of these requirements, the presiding officer shall impose upon the person who signed it, the represented paxty, or both, an appropriate sanction, which may include an ordex to pay the other paxty or paxties the amount of reasonable expenses incuxred because of the filing of the pleading, motion, or other pape1, including a reasonable attomey's fee .. 5

5The Commission can not entextain a motion to awaxd fees under Section 120 595(1), Florida Statutes, insofar as this provision (commonly refoned to as the "improper paxticipation" attomeys fees provision-foxmer!y Section 120.59(6)(1995))-is limited to administrative proceedings which are conducted by an administrative Jaw judge .. As is noted in Section 120 . .595(l)(a), Flo1ida Statutes, howevex, the provisions contained in that section axe supplementaxy to other attomeys foes provisions and axe not intended to abxogate such provisions .. Therefore the Commission's authority to awaxd fees under Section 120.569(2)(c), Floxida Statutes, is undiminished ..

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The Commission, as the "presiding officer" (see Sections 106.24(5), 106.26 and 120.57

(1), Florida Statutes (1996 Supp), is authorized to award expenses and attorneys fees under this

section if it is shown a party has engaged in repetitive litigation on the sa.'11e issue, asserted

"vacuous" factual allegations or has made legal argument which has no basis, see Davis,

Attorneys Fees and Costs in Administrative Proceedings, VoL XIII, No 3, The Florida Bar

Administrative Law Section Newsletter; Dolphins Plus v. Residents of Key Largo, 598 So. 2d

324 (Fla. 3rd DCA 1992), Burke v. Harbor Estates Associates, 591 So .. 2d 1034 (Fla. 1st DCA

1991) ..

In Mercedes Lighting v. Dep't of Gen. Serv., 560 So . .2d 272 (Fla. 1st DCA 1990), the

court held that in considering what constitutes an "improper purpose" under Section.

120 .. 569(2)(c)-formerly Section !20.57(1)(b)5-," the courts should not delve into an attorney's or

party's su~jective intent or into a good faith-bad faith analysis .. " Id .. at 278 ..

Instead, if a reasonably clear legal justification can be shown for the filing of the paper in question, improper purpose cannot be found and sanctions are inappropriate.. As an example, .. improper purpose may be manifested by excessive persistence in pursuing a claim or defense in the face ofrepeated adverse rulings, or by obdurate resistance out of proportion to the amounts or issues at stake

See also Procacci Commercial Realty Inc. v. Diwt. of Health and Rehabilitative

Services, 690 So .. 2d 60.3, 610 (Fla. 1st DCA 1997) at Ftn 9

While, as was held in Mercedes Lighting, fil!l2ill, Section 120.569(2)(c), Florida Statutes,

does not fully encompass the strictures contained in Rule 11, Federal Rules of Civil Procedure, it

is clear that filing "frivolous" pleadings (in the sense of not being legally meaningful) is not the

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only grounds for the imposition of sanctions. Abuse of the light to file motions or to initiate

proceedings, in light of clearly established facts or law, may also justify an award of fees and

expenses, see Good Samaritan Hospital v. Dept of Health and Rehabilitative Services, 582 So ..

2d 722 (Fla. 4th DCA 1991).. The Respondent has clearly engaged in such sanctionable conduct

An award of attorneys fees is thus appropriate ..

The third Motion to Dismiss is therefore DENIED and, for the reasons set forth above,

the Division's Motion for Attorneys Fees is GRANTED ..

At its meeting on June 10, 1998, the Commission heard testimony (that of Assistant

Attorney General George Waas, Esq .. , who was accepted by the Commission as an expert in

elections law litigation) and received two affidavits from the attorneys engaged inb preparing the

Response to the Third Motion to Dismiss as to a reasonable attorneys fee .. Respondent, who was

( represented by counsel, produced no evidence in opposition .. The Commission therefore, after

hearing the testimony, reviewing the evidence, and hearing argument of counsel finds that a

reasonable attorneys fee for preparing the Response to Response to the Third Motion to Dismiss

and arguing the same would be $2937.50 and the same is hereby awarded .. 6

6Insofar as the activities of the Division of Elections in prosecuting the cases before the Commission now reside in the Commission itself per Chapter 97-13 LOF, the payment for the attorneys fees award should be made to the Florida Elections Commission for appropriate deposit

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FINDINGS OF FACT'

1 .. James l. Boczar, the Respondent, was a State Senator from District 24 who ran

unsuccessfully forreelection in 1994 .. (Tl-121, T2-61) Cathy Hrut served as BocZaI's campaign

treasurer. (T 1-121) Cathy Hrut worked exclusively for the BocZaJ campaign during the 1994

elections. (Tl-160) The election occwred on November 8, 1994 (T2-55)

2 The Respondent listed his home address and the home add!ess of his spouse, Linda

BocZaJ, as 1708 Flower Street Drive, Sruasota, FL 34239, on his campaign treasurer's report

(Exhibit D-3, pp. 40, 42, & 46) The Respondent listed his campaign office as 6360 S. Tamiami

Trail, Sruasota, Florida, on his CTRs for the period of October 15 to November 3, 1994 .. (Exhibit

D-3, pJ5)

3 .. The Respondent maintained his campaign account at West Coast Bank in Sruasota,

( Florida.. (Exhibit D-2.A) The address listed for the Jim BocZaJ Campaign on the bank

documents was the Respondent's home add!ess at 1708 Flower Street Drive and not his

campaign office .. (Exhibits D-2A & D-2 .. B)

4 .. On October 31, 1997, check No .. 144 was issued from the Jim BocZaJ Campaign

account to station WBBH. (Exhibits D-2.B) The check was in the amount of$12,282.50 and

7Each statement of facts in this section cites the sowce of the facts .. The notation "Tl-#" refers to the transcript of the heruing held on April 4, 1997, and the page number of the transcript The notation "I2-#" refers to the transcript of the heruing held on August 11, 1997, and the page nwnber of the transcript Finally, if the facts rue contained in an exhibit, it is listed as "Exhibit-#, p.#" with the appropriate exhibit nwnber and the page number of the exhibit, if necessary..

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signed by James J. Boczar, the Respondent (Exhibit D-2 .. B) This check was the largest check

wzitten by the Boczar campaign in the two repmting periods before the election. (Exhibit D-3,

pJ-41)

5 .. There are no entiies on Respondent's CTR for the period of October 15, through

November 3, 1994, showing an expenditwe made on October 31, 1994, or made to WBBH

(Exhibit D-3, pp .. 15-40) There is one entry showing an expenditwe for $12,28250.. (Exhibit D­

. 3, p..20) The entiy indicates that the expenditwe was made on October 28, 1994, to "Ditto" for

an "ad " (Exhibit D-3, p 20)

6 .. On November 2, 1994, when check No .. 144 was presented to the bank for payment,

there were insufficient funds in the Jim Boczar - Campaign account to cover the amount of the

check. (Exhibit D2A) Check No 144 resulted in an overdraft of the campaign account in the

( amount of $7948 .. 75 and an overdraft fee of $25 .. (Exhibit D2.A) There were no entiies on

Respondent's CTRs showing the $25 overdraft fee charged by West Coast Bank. (Exhibit D-3)

7.. Although the Respondent failed to list the $25 overdraft fee on his CTRs, he listed

the $60 of deposit adjustments charged his account that were listed on the same bank statement

(Exhibit D-3, p. 45)

8 .. Cathy Hart, the Respondent's campaign treaswer testified that she received a call

from the bank that a check (identified as check# 144) had been retwned for insufficient funds

(T 1-132) She stated that she immediately notified the Respondent and funds were tiansfoned

into the campaign account to cover the check.(! 1-133)

9 .. Hart noted that the issuance of the check with insufficient funds was a result of her

own accounting error and that the Respondent would only have known of the insufficiency as a

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result of being told by Hart and that she had never told Respondent of any deficiency in the

account. (T 1-132-134) While she had no specific knowledge of the particular transaction, Hart

testified that typically the Respondent would ask if there were sufficient funds in the account to

cover a check before he signed it (Tl-137) ..

10 .. Sylnovia Holt was the accountant for the FDP during the 1994 elections. (Exhibit

D-1, T 1-65) In 1994, Holt was responsible for all accounts receivable, for accounts payable, and

for telling the candidates of the amount of the in-kind contributions made to their campaigns by

the FDP .. (TJ-65) The first step in the procedure that Holt followed to tell candidates of the

amount of the in-kind contributions was to prepar·e a list of all expenditur·e made by the FDP on a

candidate's behalf at the end of each reporting period .. (Exhibit D-1) Once the list was

completed, Holt forwarded the list to Pat Maloy, Finance Director of Victory 94, for verification ..

( (Exhibit D-1)

10. The list prepared for the Boczar campaign shows that the FDP made a total of $38,

265 .56 worth of expenditures on behalf of Jim Boczar for the period covering September 30

through November 4, 1994 (Exhibits D-1 & D-1 A) The list includes campaign expenditures

for rent, phones, and the salary of campaign personnel (Exhibit D-1.A)

11 The itemized expenditure list shows that the FDP made an expenditure on October

4, 1995, of $267 . .50 to South Trail Professional Building at 6360 South T amiami Trail, Sarasota,

Florida .. (Exhibit D-LA) 6360 Tarniami Trail was also the address of the Jim Boczar campaign

office .. (Exhibit D-3, p .. 15) The Respondent's CTRs do not show an expenditure for the rent of

his campaign office.. (Exhibit D-1)

12 The itemized expenditure list shows that the PDP made an expenditure on October

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17, 1994, of $206.42 to Cellular One for telephones, and expenditures on October 17, 1994, of

$177.51 to GTE Florida and of$149 .. 76 to United Telephone of Florida. (Exhibit D-LA)

Although Cathy Hart testified (Tl-152) that the Respondent's campaign had phones and utilized

phone service, his CTRs for the reporting period of September 30 to October 14, 1994, and

October 15 to November 3, 1994, do not show any expenditures for telephones by his campaign

(Exhibit D-3, ppJ-41)

13.. The itemized expenditure list shows that the FDP made an expenditure on October

18 and November 2, 1994, of $500 on each date to Sally Milliken for contract services. (Exhibit

D-1.A). Cathy Hart testified that she knew that Sally Milliken was a worker for the Boczar

campaign in Chariotte County and that her salary was paid fo1 by the FDP .. (Tl-139) The

Respondent's CTRs do not report any in-kind contribution from the FDP for the salary paid to

' I Milliken to work on the Boczar campaign. (Exhibit D-3)

14. Pat Maloy testified that he had a conversation with the Respondent in which Maloy

told the Respondent that the FDP agreed to pay the salary of Cathy Hart for her work on his

campaign. (T2-62) Maloy also testified that the Respondent knew that the FDP had agreed to

pay for goods and services besides the salary of Cathy Hart (T2-72-75) The bank records from

Cathy Hart's personal account show that the FDP paid her every other week from the first

primary until the general election .. (Exhibit D-4, T2-21)

15 The itemized expenditure list for the period of September 30 through November 4,

1994, shows that the FDP made an expenditure on October 4, 1994, of $1000 and on November

2, 1994, of $1500 to Cathy Hart (Exhibit D-LA) Although it is not listed on the itemized

expenditure list, the FDP also wrote a check to Cathy Hart dated October 18, 1994, for $1000 ..

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(Exhibit D-5)

16.. Cathy Hart received the checks dated Octobe1 18, 1994, and November 2, 1994

(Exhibits D-4 & D-5) The back of the October 18, 1994, check shows that Cathy Hart endmsed

the check and the bank records show that she deposited the check into the joint account with her

spouse, Barry D. Hart, on October 24, 1994. (Exhibits D-4, p .. 10 & D-5; T2-29) The back of the

November 2, 1994, check shows that Cathy Hart and Barry D Hart endorsed the check, and the

check was cashed on November 7, 1994. (Exhibit D-5, T2-29)

17 .. After Sylnovia Holt completed the itemized expenditure list for each repo1ting

period, it was her usual practice to draft and sign Pat Maloy' s name to a letter addressed to each

candidate informing the candidate of the total in-kind contributions made to the candidate's

campaign by the F DP.. (Exhibit D-1, Tl-66) Holt also testified that once the letter was

( completed, it was he1 normal practice to fax the letter to the candidate.. (T 1-67) The letter was

produced, however, the FAX cover sheet for the letter to the Boczar campaign for the last

reporting pe1iod could not be found in the FDP's records although other covers were produced ..

(Il-67)

18.. The letter to Tim Boczar for the last reporting period was dated November 4, 1994,

and stated that the FDP had made in-kind contributions to his campaign in the amount of

$38,265..56, the same amount as the total on the itemized list of expenditures .. (Exhibits D-1 A &

D-LB)

19 .. Cathy Hart testified that she 1emembers the campaign receiving several letters that

the FDP faxed to the Respondent indicating the amount of the in-kind contributions made by the

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FDP to the Boczar campaign. (Tl-126-7; R-1) Hru:t testified that she used the information

contained in the letters to complete her CTRs .. (Tl-126-8)

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20. The first letter Hru:t identified was dated August 4, 1994, and reported $6,552 .50 of

in kind contributions for the reporting period of July 1 through July 29, 1994 .. (Exhibit R-1, p.2)

According to the fax cover sheet, the letter was faxed to Boczru: on August 4, 1994.. (Exhibit R­

I, p.I) The second letter was dated August 16, 1994, and reported $3,687.90 of in kind

contributions for the repotting period of July 30 thiough August 12, 1994 .. (Exhibit R-1, pA)

According to the fax cover sheet, the letter was faxed to Boczru: on August 16, 1994. (Exhibit R-

1, p3)

21. The third letter Hru:t identified was dated September 1, 1994, and reported

$22,99846 of in-kind contributions for the reporting period of August 13 through September 1,

( 1994 .. (Exhibit R-1, p .6) According to the fax cover sheet, the letter was faxed to Boczru: on

September I, 1994 (Exhibit R-1, p .5) The fourth letter was dated September 14, 1994, and

reported $4,957 .. 79 of in-kind contributions for the reporting period of September 2 through

September 9, 1994. (Exhibit R-1, p .. 8) According to the fax cover sheet, the letter was faxed to

Boczru: on September 14, 1994. (Exhibit R-1, p .. 7)

22 The fifth letter was dated September 28, 1994, and reported $12,500 of in-kind

contributions for the reporting period of September 10 through September 29, 1994 (Exhibit R­

I, p .. 10) According to the fax cover sheet, the letter was faxed to Boczru: on September 29, 1994.

(Exhibit R-1, p .. 9) The sixth letter Hru:t identified was dated October 20, 1994, and repotted

$9,320 64 of in-kind contribution for the reporting period of September 30 through October 14,

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' ' 1994 .. (Exhibit R-1, p.12) According to the fax cover sheet, the Jetter was faxed to Boczar on

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October 20, 1994. (Exhibit R-1, pJ 1)

23.. The FDP listed its fax number on its letterhead and on the fax cover sheets

accompanying the six letters as (904) 222-0916 (T2-3 l, R-1) Cable and Wireless, Inc, was the

Jong distance caHier for the FDP's fax telephone line in 1994. (T2-31) The billing statements

for phone number (904) 222-0916 show that on August 4, August 16, September 1, September

14, September 29, and October 20, 1994, the FDP faxed a document to Jim Boczar .. (Exhibit D-

6, pp18, 26, 39, 46, 55, & 67; T2-36-41)

24. The billing statements of Cable and Wireless, Inc , also show that on November 4,

1994, at 4:47 pm .. and again at 5:18 p.m .. , the FDP from its fax number (904) 222-0916 sent a

document to Jim Boczar .. (Exhibit D-6, p .. 79; 12-41) The time of the transmission was nine-

{ tenths of a minute (Exhibit D-6, p .. 79) The letter informing the Respondent that the FDP had '

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made in-kind contributions in the amount of $38,265 . .56 to his campaign for the reporting period

of September 30 through November 4, 1994, was dated November 4, 1994 (Exhibit D-6) The

Commission thus finds that the weight of the evidence shows that the FDP faxed and the

Respondent's campaign received the letter of notification of contributions from the FDP. Hart's

statements to the contrary to the extent that it is asserted that the campaign was not sent the

information by the FDP (T 1-128-129) are not credible .. 8

8In light of the extrinsic evidence that faxes from the FDP to the Boczar campaign were sent and received on November 4, 1994, precisely when Holt said they would have under the FDP's normal procedures, it is apparent that the wrangling over the meaning of Holt's statement in her affidavit(s) ( D-1) is immaterial The Commission takes Holt's testimony that her normal procedure was to fax the contribution total to the candidate and that she had no reason to believe that her procedure was any different in the instant case as being consistent with Holt's

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25 .. The Respondent did not report any in-kind contributions from the FDP on his CTR

for the reporting period of October 15 through November 3, 1994, or on his termination report.

(Exhibit D-3, p 15-47) The Summary Sheet of the CTR for the reporting period of October 15

through November 3, 1994, shows that the Respondent received "O" in-kind contributions for

that reporting period (Exhibit D-3, p . .16).

26 .. The Respondent signed his CTRs .. (Exhibit D-3, ppJ, 15, & 42; Tl-157) His

signature is directly below a printed statement that reads: "I certify that I have examined this

report and it is true, conect, and complete .. " (Exhibit D-3) Hart testified that when she was

present the Respondent reviewed the CT Rs before signing them. (T 1-157)

27. Hart testified that she made no attempt to contact the FDP, Pat Maloy, or anyone

else prior to or after filing the last CTR covering the period of October 15 through November 3,

1994 or during the next 90 days before filing the termination report to determine the amount of

in-kind contributions made by the FDP to the campaign. (Tl-154-6) There was no evidence

presented that the Respondent made any such attempt

28 .. The Commission finds that the Respondent was personally aware that his campaign

received material and evident support in the form of campaign worker salaries, rent and phone

support and consultant services up to the end of the campaign .. The Commission finds Maloy's

testimony that he personally told the Respondent that the FDP would contribute such items and

services to the Respondent's campaign to be compelling.

29 .. Finally the Commission finds that the testimony of Hart (Tl-138-155) not credible

understanding of the statement at if7 of her affidavit

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to the extent that it contradicts the Commission's finding herein that the campaign and the

candidate were clearly aware that the FDP was contributing to the campaign throughout the

campaign. The Commission finds that the candidate and the campaign were well aware that the

FDP had made material in-kind contributions in goods and services between the October 20,

1994, report to the campaign from the party and the November 4, 1994, closing date for the

acceptance of contributions. Hart's testimony (Tl-139-141, 144-145, and the Exhibits (R-1 and

D-1) evidence the continuous and open nature of the FDP's support and make such a conclusion

inescapable. The Commission further finds that the lack ofreporting such contributions on the

campaign reports made the reports materially deficient.

CONCLUSIONS OF LAW

1. The Commission has jurisdiction over the parties to and subject matter of this cause,

r ) pursuant to Section 106.26, Florida Statutes.

2. The Respondent was charged with violating two sections of Chapter 106, Florida

Statutes. The first is Section 106.11(3), Florida Statutes, that provides as follows:

No candidate ... shall authorize any expenses ... unless there are sufficient funds on deposit in the primary depository account of the candidate ... to pay the full amount of the authorized expense, to honor all other checks drawn on such account, which checks are outstanding, and to pay all expenses previously authorized but not yet paid.9

9This provision exists to prohibit campaigns from entering into agreements for goods and services which can not be financed from the campaign's existing resources. Such a provision is necessary to protect vendors insofar as seeking recompense from a campaign is at best problematic and may not even be possible, see Guyton v. Howard 525 So. 2d 948, 955-956 (Fla. 1st DCA 1988). In addition, because Florida, unlike the federal system does not permit the acceptance of contributions after the campaign to retire debts occurred during the campaign or

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3. To find a violation ofthis section, the evidence must show that the Respondent

committed the following elements of this offense.10 The Respondent: (I) authorized an

expenditure, (2) there were insufficient funds in the campaign account to pay the authorized

expenditure, and (3) "willfulness.

4. The Commission adopted a definition of"willfulness" in Division of Elections v.

Tanner, DOSFEC 95-130 (August 29, 1995). A Respondent acts willfully for purposes of the

civil penalty under Chapter I 06, Florida Statutes, when he knew or showed reckless disregard for

whether his conduct was prohibited by law. A Respondent who shows reckless disregard is one

who disregards a provision of Chapter 106, Florida Statutes, or who is plainly indifferent to its

requirements. 11

5. Although the Commission in Tanner held that a person's conduct is willful when he

( \ acts inconsistent with a known law, it also recogru· zed that there are defenses to "willfulness" \ J

even under these circumstances. Among the defenses to finding of "willfulness" recognized by

the extension of credit to a campaign, cf. U. S. v. Sun-Diamond Growers of California, 941 F. Supp. 1277, 1280-1281 (D. D. C. 1996) there may be no way for a candidate to repay a debt after the campaign even it the candidate is so inclined.

10It is uncertain under Florida law whether the evidentiary standard needed to prove a violation of Chapter 106 need meet a "clear and convincing" or "preponderance" standard, see Department of Bank. and Fin .. Div. of Securities & Investor Protection v. Osborne Stem & Co., 670 So.2d 932, 935 (Fla.1996) Latham v. Commission on Ethics, 694 So. 2d 83 (Fla. 1st DCA 1997), rev. pending, Nevertheless the Commission finds that the evidence presented in this case fails to meet the lesser standard as to the allegations surrounding Section 106.11 (3), Fl;orida Statutes, and meets a "clear and convincing" standard as to the allegations involving Section 106.07(5), Florida Statutes.

11 A definition that has now been substantially set forth in Florida Statutes, see Section 1, Chapter 97-13 LOF (Eff. January 1, 1998).

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the Commission is a reasonable reliance on incorrect advice from an appropriate source-such as a

supervisor of elections.

6. Turning to the issue at hand, it is clear that the Respondent did authorize and sign a

check for campaign expenses at a time when there were insufficient funds in the bank to cover

the amount. It is also clear that the Respondentwas aware of and tried to adhere to the statutory

prohibition against issuing checks when sufficient funds were not in the campaign account. The

testimony of his treasurer, Hart, that the issuance df check # 144 when funds were not available

was a result of her personal accounting error is accepted by the Commission.

7. There was no evidence that any vendor ever went unpaid or that the Respondent was

regularly or intentionally running his campaign in deficit. The situation appeared to be an

isolated instance which was quickly and properly remedied. The evidence thus does not warrant

( ) the finding of "willfulness" necessary to sustain a violation. The Commission also takes into

account the fact that upon receipt of the information that check # 144 was returned, the

Respondent and his treasurer immediately took steps to place sufficient monies in the campaign

account and then properly reported these contributions.

8. The Respondent was also charged with violating Section 106.07(5), Florida Statutes,

which provides as follows:

The candidate and his or her campaign treasurer, in the case of a candidate, or the political committee chair and campaign treasurer of the committee, in the case of a political committee, shall certify as to the correctness of each report; and each person so certifying shall bear the responsibility for the accuracy and veracity of each report. Any campaign treasurer, candidate, or political committee chair who willfully certifies the correctness of any report

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( while knowing that such report is incorrect, false, or incomplete commits a misdemeanor of the first degree, punishable as provided ins. 775.082 ors. 775.083.

9. For the Commission to find a violation of this section, the evidence must show that

the Respondent committed the following elements of this offense. The Respondent: (1) signed

the campaign treasurer's report, (2) the report was incorrect, false, or incomplete, and (3)

"willfulness." As was discussed at the hearing, it unnecessary to prove that the Respondent acted

knowingly, because knowledge is only an element if the person is charged with a misdemeanor. 12

10. The Respondent violated this section when he failed to include in the last reporting

period $38,265.56 worth of in-kind contributions made by the FDP to the Jim Boczar campaign.

The Respondent did not dispute that he signed all of his CTRs or that the CTRs were inaccurate

(- ) in that they failed to report the $38,265.56. The only issue therefore was whether the

Respondent's conduct in signing an inaccurate campaign report was willful. The Commission

finds that it was.

11. The Respondent was aware that the FDP had committed to and was, in fact,

contributing goods, services and monies to his campaign throughout the 1994 election. The

testimony is clear and uncontradicted that Pat Maloy, Finance Director of Victory 94 for the

12 As noted above, the initial sentence of Section 106.07(5), Florida Statutes, requires that a candidate must certify to the correctness of the report and bear the responsibility for its accuracy. This requirement is independant of the criminal provisions of the section. The Commission, under Section 106.25(3), Florida Statutes, has concurrent jurisdiction to determine violations for the "willful" performance of an act prohibited by Chapter 106. Thus "willfully" certifying to a false campaign report subjects a candidate to Commission jurisdiction while "willfully and knowingly" certifying to a false report subjects a candidate to criminal sanctions.

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FDP, told the Respondent that the FDP would pay the salary of Cathy Hart and that the FDP

would provide other goods and services to his campaign along with Hart's salary.

12. Beginning on August 4, 1994, the FDP faxed a letter to the Respondent on the last

day of each reporting period telling him the value of the in-kind contributions made to his

campaign by the FDP. The Respondent's campaign treasurer regularly made the Respondent

aware that the campaign had received the FDP contribution information.

13. While the treasurer testified that she did not see the November 4, 1994, letter, the

phone records of the FD P's fax machine obtained from Cable and Wireless, Inc., show that the

FDP sent a fax to the Boczar campaign on the afternoon of November 4, 1994. The Commission

thus accepts that the FDP did follow its normal practices and notified the Boczar campaign of its

contributions on November 4, 1994. Even ifthe fax were misplaced, however, the Commission

( ) finds that the evidence is clear and convincing that, because of the history of the continuous,

ongoing, FDP contributions to his campaign, the Respondent was or should have been aware

when he signed the report that failing to report any contributions from the FDP on the November

4, 1994, report for the period reporting period made that report inaccurate and erroneous.13

14. In support of this finding it is undisputed that throughout the campaign many of the

ongoing expenses of the Boczar campaign were paid for by the FDP and not by the campaign.

For example, the rent for Respondent's campaign office, the salary of Cathy Hart, the salary of

Sally Milliken, and the expenses for the campaign's phones were all continuing contributions

from the FDP. The Respondent was well aware of these facts.

"The treasurer testified that the Respondent reviewed the CTRs before signing them.

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15. Even though the Respondent had personal knowledge of some or all the

contributions from the FDP, he failed to report any in-kind contributions on his CTR for the

period of October 15 through November 3, 1994. To have reviewed the report and then signed it

when the Summary Sheet had a "O" had been entered in the column reporting the value of all in-

kind contributions for the reporting period, when it was apparent that the FDP had made sizeable

"in-kind" contributions during the reporting period, is clear evidence of, at best, a "reckless

disregard" of the duties placed upon a candidate by Chapter 106.

16. In addition to the filing of an obviously inaccurate report, the Respondent made no

attempt to contact the FDP, Pat Malloy, or anyone else prior to or after filing the CTR or during

the days before the filing of the campaign's termination report. As was noted in the

Commission's decision in the initial issue before it ('117, supra) prompt attempts at corrective

( ' action can mitigate against the imposition of a harsh penalty. Here, however, even giving the }

Respondent the benefit of the assumption that he may not have been personally aware of the

FDP's November 4 fax when he signed the CTR, he made no effort to contact the FDP after the

campaign or to amend his reports. This is especially troubling because the evidence is clear that

the Respondent knew that the FDP had consistently notified his campaign of its contributions at

the end of each previous reporting period and that the campaign was continuing to receive

contributions during the last reporting cycle.

Disposition

Based upon the foregoing facts and conclusions oflaw, the Florida Elections Commission

finds that the Respondent willfully violated Section 106.07(5), Florida Statutes. It is further found

that Respondent did not violate the provisions of Section 106.11(3), Florida Statutes.

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( )

Wherefore it is hereby Ordered and Adjudged that the Respondent shall remit a civil

penalty in the amount of $1,000. The civil penalty shall be paid to the Florida Elections

Commission, Room 2002, The Capitol, Tallahassee, Florida 32399-0250, within 30 days of the date

this Final Order is received by the Respondent.

Respondent is also reqUired to pay attorneys fees in the amount of $2937.50. The fees shall

also be paid to the Florida Elections Commission, Room 2002, The Capitol, Tallahassee, Florida

32399-0250, within 30 days of the date this Final Order is received by the Respondent.

DONE AND ORDERED by the Florida Elections Commission and filed with the Clerk

of the Commission on this 19 th day of __ J_u_n_e ____ ~ 1998, in Tallahassee, Florida.

&~a;;// V ALERlE CROTTY, CHAIR FLORIDA ELECTIONS COMMISSION

CERTIFICATE OF SERVICE

I HEREBY CERTIFICATE that a true and correct copy of the forgoing Final Order has

been sent by U.S. Mail to James J. Boczar, Esquire, prose, 1709 Flower Drive, Sarasota, Florida

34239, and 4821 N. Meridian Street, Indianapolis, Indiana 46208, Barbara M. Linthicum, Assistant

General Counsel, Room 2002, The Capitol, Tallahassee, Florida 32399-0250, and Tracy J. Sumner,

Esquire, 1330 Thomasville Road, Tallahassee, Florida on thisl9thday of_Ju_n_e ___ _, 1998.

F:\USERS\ADMIN\JOHN\FEC\BOCZAR\ORDER.DFT

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STEV;N ::~ ENSEN COMMISSION CLERK