STATE OF FLORIDA FLORIDA ELECTIONS COMMISSION FINAL ORDER. THIS CAUSE came on to be heard at an informal hearing held before the Florida APPEARANCES

Transcription

1 STATE OF FLORIDA FLORIDA ELECTIONS COMMISSION Pii 11: I 9 ": s l (J ~~ l ~ ;'0. r"" '' -\ :_:~ FLORIDA ELECTIONS COMMISSION, PETITIONER, v. ROBERT CHUNN, JR., RESPONDENT.! AGENCY CASE No.: FEC F.O. No.: DOSFEC W FINAL ORDER THIS CAUSE came on to be heard at an informal hearing held before the Florida Elections Commission (Commission) on February 17, 2006, in Tallahassee, Florida. APPEARANCES For Commission For Respondent Charles A. Finkel General Counsel 107 W. Gaines Street Collins Building, Suite 224 Tallahassee, FL Robert Chunn, Jr. 18 Phippen-Waiters Road, Apt. 3 Dania Beach, Florida STATEMENT OF THE ISSUE Whether the Respondent violated Section (1)(b), Florida Statutes, when he failed to properly report all contributions received from a campaign fund raiser, and Section (5), Florida Statutes, when he certified to the correctness of campaign treasurer's reports that were incorrect, false, or incomplete. PRELIMINARY STATEMENT On March 2, 2005, the Commission received a sworn complaint alleging violations of Florida's election laws. Staff of the Commission conducted an investigation to determine F aa004 (11/05)

2 whether the facts alleged in the complaint constituted probable cause to believe that the Respondent violated The Florida Election Code. On October 11, 2005, staff drafted a Staff Recommendation recommending to the Commission that there was probable cause to believe that The Florida Election Code was violated. On December 2, 2005, the Commission entered an Order of Probable Cause finding that there was probable cause to charge the Respondent with the following violations: Count 1: (1 )(b), Florida Statutes, when the Respondent received an in kind contribution from Paolo's 3 's Company at the campaign fund raiser held on December 11, 2004, in the amount of $250, and failed to report it on his Original 2004 Q4 CTR. Count 2: (1)(b), Florida Statutes, when the Respondent received a contribution from Rosetta Brown at the campaign fund raiser held on December 11, 2004, in the amount of $100, and failed to report it on his Original 2004 Q4 CTR. Count 3: (1 )(b), Florida Statutes, when the Respondent received a contribution from Alonzo Ellis at the campaign fund raiser held on December 11, 2004, in the amount of$50, and failed to report it on his Original 2004 Q4 CTR. Count 4: (1 )(b), Florida Statutes, when the Respondent received a contribution from Jennifer Gearings at the campaign fund raiser held on December 11, 2004, in the amount of $10, and failed to report it on his Original 2004 Q4 CTR. Count 5: Faa004 (1/06) 2

3 (5), Florida Statutes, by certifying to the correctness of his 2004 Q4 CTR that was incorrect, false, or incomplete, when the Respondent failed to report an in kind contribution and three cash contributions received at the campaign fundraiser held on December 11, Count 6: On or about January 24, 2005, Respondent violated Section (5), Florida Statutes, by certifying to the correctness of his first Amended 2004 Q4 CTR that was incorrect, false, or incomplete, when the Respondent failed to report an in kind contribution and three cash contributions received at the campaign fundraiser held on December 11, Count 7: On or about February 14, 2005, Respondent violated Section (5), Florida Statutes, by certifying to the couectness of his second Amended 2004 Q4 CTR that was incorrect, false, or incomplete, when the Respondent failed to report an in kind contribution and three cash contributions received at the campaign fundraiser held on December 11, Count 8: On or about March 4, 2005, Respondent violated Section (5), Florida Statutes, by certifying to the correctness of his third Amended 2004 Q4 CTR that was incouect, false, or incomplete, when the Respondent failed to report three cash contributions received at the campaign fundraiser held on December 11, Respondent timely requested an informal hearing and was noticed to appear before the Commission on February 17, At the informal hearing, staff presented the undisputed facts contained in the Staff Recommendation. Staff also introduced a report of Respondent's financial resources and Respondent's financial affidavit. Respondent appeared at the hearing along with his wife, Denise Chunn, who served as Respondent's campaign treasurer. FINDINGS OF FACT 1. The Respondent, Robert Chunn, Jr., was a candidate for re-election to the Dania Beach City Commission; he was defeated in the March 8, 2005 election. The Complainant was a Faa004 (1106) 3

4 community activist and a resident of Dania Beach; she was not a candidate during the March 8, 2005 election. According to the city clerk, Complainant currently served on the "Airport Advisory Board" as well as another city appointed board. 2. As part of her complaint, Complainant submitted a newspaper photograph from the January 2005 issue of the Dania Beach Press. The photograph shows two pictures of Respondent with a number of individuals surrounding him. The caption underneath each picture alludes to a breakfast held at a local restaurant for Respondent's campaign. At the top of the newspaper article is a handwritten notation, "Dec " 3. Complainant included a copy of Respondent's 2004 Q4 report, a report covering the reporting period of October 1, 2004 through December 31, The summary page identified it as an amended report filed on February 14, A review of the report indicates that it is void of any reference to the fundraiser. 4. In a response to the complaint, Respondent stated that a fundraiser was held for him at a local restaurant but that neither he nor his campaign organized the event and he was unsure whether someone paid for the event or if it was provided to his campaign as an in-kind contribution. Respondent said that it wasn't until after the Q4 report was due that he was able to determine that the fundraiser was an in-kind contribution from the restaurant's owner. 5. Dania Beach City Clerk Louise Stilson, in her response to a questionnaire, stated: Mr. Chunn telephoned me to say that he forgot to report the fundraiser at Three's Company. He never mentioned what date the fundraiser was held. He said he thought C.K. Mac McElyea paid for the event, but later found out he had not. He said Paolo, owner of Three's Company, told him he could list it as a fundraiser in his report. When Mr. Chunn told me of the event, I told him if his original report was incorrect he could file an amended report, which he did on March 4, Respondent's amended Q4 report filed with the city clerk's office on March 4, 2005, shows that Respondent reported the campaign fundraiser as an in-kind contribution Faa004 (1/06) 4

5 received from "Paolo's Three's Company" on " ," with a value of $250. Respondent's previously amended 2004 Q4 reports, filed on January 24 and February 14, 2005, failed to list any disclosure of the fundraiser in-kind contribution valued at $ Complainant alleged that contributions Respondent might have received at the fundraiser were not reported in his campaign report. However, during an initial telephone interview, Complainant was unable to provide specific knowledge of any contributions received at the fundraiser that were not reported in Respondent's campaign treasurer's reports. 8. Respondent did not address Complainant's concern about not reporting contributions as part of his response to the complaint. However, as part of his response to a questionnaire-affidavit, Respondent stated that the contributions received during the fundraiser were reported as part of an amended Q4 report. 9. Records from the filing officer reveal that Respondent's campmgn filed the original Q4 report on January 7, 2005, and subsequently filed five amended Q4 reports. Amended reports were filed on: January 24, 2005; February 14, 2005; March 4, 2005; May 20, 2005; and June 14, Respondent's wife, Denise Chunn, served as Respondent's campaign treasurer. In a cover letter with Respondent's response to the questionnaire-affidavit, she stated, "After the fundraiser I placed the contributions in what I thought was a safe place. I did this because I am [a] full time student and had a study group meeting that afternoon. Later I discovered them and immediately made the deposits and made the amendment." The campaign treasurer added, "As I stated earlier any contributions received from the fundraiser was reported in the amended in [sic] treasurer's report, Report Type Q4." 11. The campaign treasurer identified three contributions in the amended Q4 report filed on May 20, 2005 that were not reported in the original Q4 report. In a telephone interview, Faa004 (1106) 5

6 Ms. Chunn was asked how she could make a distinction between the contributions received at the fundraiser and other contributions. Ms. Chunn said because the fundraiser, to the best ofher recollection, was held on December 18, 2004, contributions reported with a contribution date of December 18 are the contributions that were received at the fundraiser event that she neglected to report in the original Q4 report. 12. Respondent's wife acknowledged that she omitted the contributions received at the fundraiser from the original Q4 report. Respondent certified that the report was true, correct and complete. The following table details the missing information from Respondent's 2004 original Q4 report: MISSING AND INCORRECT INFORMATION ON RESPONDENT'S CTR Date Filed Reporting Period Missing Information Incorrect Information 10/01/04 to 12/31/04 Did not report the $250 in-kind contribution from "Paolo's Three's 01/07/ Q4 _Original Company" restaurant Later reported in an amended Q4 report filed on March 4, 01124/ Q4- Amended /14/ Q4- Amended Did not report three contributions 03/04/ Q4- Amended received at the fundraiser held at the restaurant: Rosetta Brown $1 00 Alonzo Ellis $50 Jennifer Gearings $10 (Later reported the three contributions in an amended Q4 report filed on 5/20/05) 13. Respondent failed to provide any reason for not including the three contributions in the amended reports filed on January 24, 2005, February 14, 2005, and March 4, As part of an affidavit of filing officer, Ms. Stilson attested that Respondent Faa004 (1/06) 6

7 served as the vice mayor from March 2001 through March 2002, and mayor from March 2002 through March Respondent also served as a city commissioner from March 2003 through March Additionally, Ms. Stilson reported that Respondent was provided with a copy of Chapter 106, Florida Statutes, and the Candidate and Campaign Treasurer Handbook. 15. Respondent admitted that he has been a candidate in the past and that he does possess and has read Chapter 106, Florida Statutes, as well as the Candidate and Campaign Treasurer Handbook. As part of the questionnaire-affidavit, Respondent was asked to explain what action had he taken to determine his responsibilities under Florida's election laws. Respondent stated, "Read the laws." 16. Respondent appointed his wife, Denise Chunn, to serve as the campmgn treasurer for his 2005 campaign. According to the city clerk, Ms. Chunn has not previously served as the campaign treasurer for a candidate or political committee in the past. During his previous campaign, 2001, Respondent served as his own campaign treasurer and appointed his wife to serve as the deputy treasurer. Respondent certified to the completeness and accuracy of all ofhis campaign treasurer's reports. CONCLUSIONS OF LAW 17. The Commission has jurisdiction over the parties to and subject matter of this cause, pursuant to Section , Florida Statutes. 18. The Respondent committed four counts of violating Section (1)(b), Florida Statutes, when he received an in kind contribution of $250 and cash contributions of $100, $50, and $10 and failed to report them on his original 2004 Q4 CTR; and committed four counts of violating Section (5), Florida Statutes, by certifying to the correctness of his 2004 Q4 CTR and three amendments thereto that were incorrect and incomplete, when he failed to report the four contributions from the fund raiser. Faa004 (1/06) 7

8 19. Respondent's conduct was willful. Respondent committed the acts while knowing that, or showing reckless disregard for whether, the acts were prohibited or failed to commit an act while knowing that, or showing reckless disregard for whether, the acts were required. 20. In determining the amount of the civil penalty, the Commission considered the mitigating and aggravating circumstances set forth in Section , Florida Statutes. Respondent's financial affidavit showed that his monthly expenses nearly equaled his monthly income and that his total assets were insufficient to support a significant penalty. 21. The Commission finds that Respondent has sufficient financial resources to pay the fine imposed by the Commission. ORDER WHEREFORE the Commission finds that Respondent has violated the following provisions of Chapter 106, Florida Statutes, and imposes the following fines, inclusive of fees and costs: A) Respondent violated Section (1 )(b), Florida Statutes, on four occasions. Respondent is fined $25 for each ofthe four counts for a total of$100. B) Respondent violated Section (5), Florida Statutes, on four occaswns. Respondent is fined $100 for each of the four counts for a total of$100. C) Therefore, it is ORDERED that Respondent shall remit a civil penalty in the amount of $200. The civil penalty shall be paid to the Florida Elections Commission, 107 W. Gaines Street, Collins Building, Suite 224, Tallahassee, Florida, , within 30 days of the date this Final Order is received by Respondent. Faa004 (1106) 8

9 DONE AND ENTERED by the Florida Elections Commission and filed with the Clerk of the Commission on February 24, 2006, in Tallahassee, Florida. Chance Irvine, Chairman Florida Elections Commission NOTICE OF RIGHT TO APPEAL Pursuant to Section , Florida Statutes, the Respondent may appeal the Commission's Final Order to the appropriate district court of appeal by filing a notice of appeal both with the Clerk of the Florida Elections Commission and the Clerk of the district court of appeal. The notice must be filed within 30 days of the date this Final Order was filed and must be accompanied by the appropriate filing fee. Copies furnished to: Charles A. Finkel, General Counsel Robert Chunn, Jr., Respondent (certified mail) Beulah Lair, Complainant Dania Beach City Clerk, Filing Officer Faa004 (1/06) 9