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STATE OF FLORIDA FLORIDA ELECTIONS COMMISSION

FLORIDA ELECTIONS COMMISSION, PETITIONER,

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Flt.Eo 99 HA y I 7 AM 8: 4 2

Elf J1T~gFC~~?~;~os1oN

v. Case No .. FEC 96-287 F 0 No .. : DOSFEC 99-051-W

MARION COUNTY EDUCATION ASSOCIATION AND BRIAN CHANCE,

RESPONDENTS

FINAL ORDER

This Cause came on to be heard before the Flotida Elections Commission (FEC or

Commission) at a meeting in 1 allahassee on February 10, 1999.

For Petitioner:

For Respondent:

APPEARANCES

Michael McGuckin Assistant General Counsel Room 2002, The Capitol Tallahassee, Florida 32399-0250

Ronald G.. Meyer Meyer and Brooks, PA 2544 Blairstone Pines Drive 1 allahassee, Florida 32302

PRELIMINARY MATTERS

The parties to this case are the Commission, through its staff acting as advocate pursuant

to Section 106 .24( 4), F S ., the Marion County Education Association and Brian Chance, its

President (collectively referred to as MCEA).

An Order of Probable Cause was entered by the Commission on July 19, 1998 charging

MCEA with violating Section 106 15(4), F. S, (1997) by soliciting campaign contributions in a

building owned by a governmental agency After the entry ofthe Order, MCEA requested a

formal hearing, which, after consultation between the parties, was held before the Commission

Both parties were asked to submit hearing briefs on the various factual, statutory and

constitutional issues raised by this case In addition, both parties have entered into a stipulation

of facts with attached exhibits, which is set out below as the Commission's Findings of Fact

FINDINGS OF FACT

1 MCEA is an employee organization as that term is defined in Section 447 203(11),

Florida Statutes (1997), representing education employees employed by the Marion County

School Board in matters relating to their wages, hours, and terms and conditions of employment;

MCEA's current President is Brian Chance The Complainant is a citizen of Marion County,

who ran for the Marion County Commission in 1990 and 1992

2 On October 22, 1996, the Florida Elections Commission received a sworn complaint

alleging that MCEA violated Section 106. 15( 4), Florida Statutes, when it distributed pa)'!Oll

deduction forms to teachers at schools, that if used, required contributions to a political

committee and a committee of continuous existence The Commission staff investigated the

allegations and based on the facts and conclusions oflaw contained in its staffs Statement of

Findings, the Commission entered an Order of Probable Cause on July 19, 1998, finding there

was probable cause to believe that MCEA violated Section, I 06.15( 4), Florida Statutes.

3 Teachers working for the Marion County School Board may join MCEA organization

by paying yearly dues, assessments, and if they choose to, political contributions A teacher may

pay the dues, assessments, and political contributions in cash, or may authorize the School Board

to deduct the fees from his or her salary by payroll deduction. MCEA provides a "Continuous

Payroll Deduction Form," that teachers must execute to authorize payroll deduction. The

authorization continues from year to year unless the teacher affirmatively revokes membership

with MCEA in accordance with Section 447303, Florida Statutes (1997), or leaves employment.

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4 Dming 1996, MCEA's teacher representatives, who are teachers, and thereby

employees of the school board, routinely solicited union membership, and distributed payroll

deduction forms (Exhibit A) av~ilable as part of the solicitation of the membership .. MCEA's

teacher representatives placed the forms in a new teacher's mailbox at the school. At some time

in the day, dming non-instructional hours, teachers would check their mailboxes; new teachers

picking up the forms, who wished to join the union and use payroll deduction, completed the

forms and returned them to the teacher representatives' mailboxes, also at the schools

5 The mailboxes are receptacles located in the school buildings, generally in areas

where teachers do not perform instructional or primary job responsibilities, and may be used by

teachers to receive United States mail, intra-school mail, or to communicate with one another

6. All schools in Marion County are government owned buildings ..

( 7 MCEA's payroll deduction form is itemized to reflect distribution of the payment

amount The amounts are filled in by MCEA's teacher representatives to reflect the cuIIent

assessment of dues to the national teachers' union (the National Education Association), the state

teachers' union (the Florida Teaching Profession-National Education Association, or F TP-NEA),

MCEA local union and a fee assessed for administrative services provided by UniServ. MCEA's

payroll deduction form also includes a set amount for the Florida Teaching Profession Political

Action Council, a committee of continuous existence, and the FIP-NEA United Uniserv Political

Action Committee, a local political committee .. The total amount of these payments is certified

by MCEA to the Marion County School Board as the amount to be deducted from their members'

paychecks, pro-rated over the school year .. MCEA and the Marion County School Board, agreed

in the 1996 collective bargaining agreement, that MCEA certify one standard payroll deduction

( amount for all ofits members

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8.. To become a member ofMCEA union and pay dues and assessments through payroll (

deduction, a teacher must also authorize deduction of the payment to the committee of

continuous existence and the political committee Like the dues and the administrative

assessments, these payments are made based upon a one-time authorization. A teacher is not

required to contribute to the committees unless he or she wants the benefit of payroll deduction ..

However, a teacher can use the payroll deduction system and still prevent the committees from

using his or her funds by making a wiitten request to MCEA for a refund of the amounts paid to

the committees. Such refunds are paid to a teacher requesting one immediately upon receipt of

the request, even though the monies have not been fully collected, since they are being taken

through payroll deduction over the course of the school year. A teacher desiring a refund, must

make that request in wiiting each year

9 At the time of the alleged violation, Section 10615(4), Florida Statutes read:

( 4) No person shall make and no person shall solicit or knowingly accept any campaign contribution in a building owned by a governmental entity. For purposes of this subsection, "accept" means to receive a contribution by personal hand delivery from a contributor or the contributor's agent This subsection shall not apply when a government-owned building or any portion thereof is rented fo1 the specific purpose of holding a campaign fund raiser 1

IO .. Upon receipt of the Finding of Probable Cause, MCEA altered the form (Exhibit B)

used for the membership in the union to delete reference to the collection of the political action

dues

'In 1997 (Chapter 97-223, L 0. F..), the statute was amended to change the term "campaign contribution" to "political contribution "The Commission is uncertain as to the legislative intent behind this change (there is no legislative history}. Nevertheless, as discussed below, because all "contributions" to candidates as well as candidate supporting political committees (such as MCEA) are "campaign" contributions, a fortiori they are therefore encompassed within the possibly broader restrictions on "political" contributions The full ambit of the application of the new term will have to wait for another case

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CONCLUSIONS OF LAW

11 The FEC has jmisdiction over these proceedings under the provisions of Sections

120..569, 120.57(1) and 10626, F .. S .. 2

The Commission Declines to Adopt MCEA's Construction of Section 106.15(4), F. S

12 MCEA makes several argmnents (Brief at 5-16) in support of its position that the

terms of Section 106 15(4), F S, must be construed so as not to apply to its activities Much of

its argument is taken up with its constitutional concerns and will be discussed below Its

arguments, however, also include statutory construction components which, since it is always

more appropriate to refrain from addressing constitutional issues if possible, the FEC will first

examine

13 MCEA resorts (Brief at 12-13) to legislative staff analyses to buttress its position that

the statute was intended only to apply to soliciting or accepting contributions in one's office in a

public building.. This argument flows from Senate Staff analyses (Exhibits 2 and 3 to Brief}. Of

comse, resort to any form oflegislative history is disfavored unless the statute under examination

is ambiguous and the legislative intent and purpose can only be ascertained through resort to

such extrinsic information, Asphalt Pavers, Inc. v. Department of Revenue, 584 So . .2d 55 (Fla

1st DCA 1991); Ellsworth v. Insurance Co. of North America, 508 So.2d 395 (Fla. 1st DCA

1987) Because the FEC is of the opinion that the statute is not ambiguous, it sees no need to

resort to the tools of statutory construction Even if it did, however, it is apparent that MCEA's

interpretation is in error

14. Initially, the assertions made by MCEA are not borne out through a closer analysis

2While Section 10625(5), F .. S., provides that Section 120569 and 120 . .57(1), F. S .. , hearings shall be conducted by DOAH if so elected by a respondent, MCEA has elected to have the Commission itself hear this case.

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of the documents it cites The first snippet oflegislative staff analysis presented by MCEA (

appears to refer to an amendment that was not adopted, or at the least, was inconectly

apprehended by the staff.3 The second analysis simply does not refer to that which MCEA wants

it to refer, LE, that Section 10615(4), F S, was adopted in response to a Florida Supreme

Court decision. The reference to State v. Dodd, 561So.2d263 (Fla. 1990) in the staff analysis

does not address what is now Section 10615(4), F S, but rather refers to another section of the

proposed bill-which was not adopted .. 4

15 MCEA urges the Commission (Brief at 14-16) to construe section 106.15(4), F. S,

so as to not apply to its activities, in order to be consistent with certain otherwise conflicting

provisions oflaw Of course, because the Legislature is considered to know the state of the law

when it enacts a new statute, such a new statute should be read, if at all possible, so as not to be

in conflict with existing law. Thus sometimes it is necessary to construe a statute in a manner

contrary to its apparent plain meaning in order to reconcile such conflicts .. Here MCEA refers to

Sections 104Jl(l)(b)' and 447..509(1), F. S.,6 as being in conflict with Section 106 . .15(4), F .. S.,

3For example, the note states that the statute was intended to apply to leased buildings while the law on its face uses the term "owned by the government"

4MCEA also misapprehends the Dodd Court's overbreadth concerns when it states that "the Legislature could surely not have intended [Section 106.15(4), F S .. ,] to apply to more persons " The Dodd Court was concerned with the broad impact of a complete contribution ban while the Legislature was in session. Section 106 15(4), F S., however, enacts no such ban on contributions or their solicitation. The statute simply limits solicitations at a particular place (governmental buildings) and in no way prohibits MCEA from seeking out like-minded persons in any other venue who may wish to contribute to it

'Political activities of state, county, and municipal officers and employees -

(1) No officer or employee ofthe state, or of any county or municipality thereof, except as hereinafter exempted from provisions hereof; shall: (b) Directly or indirectly coerce or attempt to coerce, command, or advise any other officer or employee to pay, lend, or contribute any

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if that section is applied to foreclose MCEA's activities .. However, a closer reading shows that

neither of these statutes conflicts with the terms of Section 106.15(4), F.. S ..

16.. Section 106 . .15(4), F .. S, prohibits only campaign contribution solicitations in public

buildings .. Thus its terms are easily reconciled with the broader provisions of Section

l 0431(1 )(b ), F .. S , which provide that governmental employees, while prohibited from engaging

in certain coercive acts of political solicitation when directed at other employees, are permitted to

suggest that contributions be voluntaiily made .. Section 106..15(4), F S, does not conflict with

the permission granted to governmental employees to solicit voluntaiy contributions .. It simply

acts to preclude such solicitations in governmentally owned buildings .. The two statutes rue thus

completelyreconcilab!e, with Section l 06.. 15( 4), F S .. , being a nairowly drawn limitation on a

general right of non-coercive solicitation

17 .. Section 447 . .509(1), F .. S, permits the general distribution of union literature

pait of his or her salaiy, or any money, or anything else of value to any paity, committee, organization, agency, or person for political purposes .. Nothing in this paiagraph or in any county or municipal charter or ordinance shall prohibit an employee from suggesting to another employee in a noncoercive manner that he or she may voluntarily contribute to a fund which is administered by a party, committee, organization, agency, person, labor union or other employee organization for political purposes

60ther unlawfol acts .. -

(1) Employee organizations, their members, agents, or representatives, or any persons acting on their behalf are hereby prohibited from: (b) Distributing literature during working hours in areas where the actual work of public employees is performed, such as offices, warehouses, schools, police stations, fire stations, and any similai public installations.. This section shall not be construed to prohibit the distribution of literature during the employee's lunch hour or in such aieas not specifically devoted to the performance of the employee's official duties

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(including solicitations) to public employees at their work sites subject to certain conditions,

School Bd. of Lee County v. Public Employees Relations Com'n, 513 So2d 1286 (Fla !st DCA

1987) By its terms, Section 106 15(4), F. S, adds another limiting factor regarding certain

specific literature-that involving campaign contribution solicitations inside governmentally

owned buildings .. Thus, once again, Section 106 15(4), F S, is a later enacted narrowly drawn

restriction and does not conflict with the eaI!ier enacted broader statute ..

18 .. Finally, MCEA asserts (Brief at 13) that the exemption from the constraints of

Section 10615(4), F S, which is granted when a part of a governmental building has been

rented by persons for a campaign fund raiser, somehow leads to the conclusion that the statute

should not be applied to campaign contribution solicitations by political committees In support

of its position, MCEA cites to Section 106.025(1), F S, which provides that the funds raised in a

campaign fund raiser must be used for a candidate for public office MCEA argues that it would

be umeasonable to assume that political committees would be excluded from renting a

governmental building to raise funds when a candidate could rent a building to do so Thus,

MCEA opines, the Legislature never intended Section 10615( 4), F S, to apply at all to the

activities of political committees.

19 .. MCEA's argument misapprehends the provisions of Section 106.025, F. S While

the funds raised at a campaign fund raiser must be used for a political candidate, there is no

restriction on who may hold such a fund raiser-see Section 106 .. 025(l)(d), F. S, (noting that a

candidate or "person"-a term that includes a political committee-may hold a fund raiser}. Thus,

the "exemption" for political fund raisers is actually available to political committees when the

funds raised will be used for candidates ..

20 .. Next there is a profound difference between a governmental decision to allow the use

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of its buildings for clearly demarcated activities that, one presumes, will be timed so as to not

interfere with the ordinary business that is carried on in the strncture, and MCEA's wish to

engage in on-going solicitations during working hours .. The FEC declines to read into the

existence of the campaign fund raiser exception a silent legislative acquiescence in blanket

campaign contribution solicitations in governmental buildings by groups such as MCEA

MCEA's Claim That to Apply the Plain Terms of Section 106.15(4), F. S., to Its Activities Would Violate

Its Rights to Free Speech and Association is Erroneous,

21 MCEA argues (Brief at 6-12) that the FEC must construe Section 106 15(4),

F. S, to allow the actions ofMCEA-despite their admittedly self~evident conflict with the

provisions of the statute-because otherwise the statute as applied would violate MCEA's rights of

Free Speech and Association MCEA is incorrect

22 .. In essence, MCEA wishes the Commission to invoke the doctrine of"constitutional

doubt" and to construe the statute in order to permit it to continue its activities .. ' MCEA correctly

notes that the right to seek political support through solicitation of"contributions" implicates the

First Amendment guarantees of the rights to Free Speech and Association

23. In support of its position that the statute must be given a narrowing construction and

that Section 106 15(4), F. S, directly operates as an improper restriction upon MCEA's

constitutional rights, MCEA cites to State v. Dodd, supra. In that case, the Florida Supreme

Court struck down a provision in Chapter 106 that forbade candidates from soliciting or

accepting contributions while the Legislature was in session The Court, while acknowledging

'The doctrine has a lengthy and honorable pedigree .. As Justice Holmes stated long ago, "[a] statute must be constrned, if fairly possible, so as to avoid not only the conclusion that it is unconstitutional but also grave doubts upon that score " United State v. Jin Fuey Moy. 241 U .S

1, 394, 401, 36 S Ct 658, 659, 60 LEd 1061 (1916), Almendarez-Torres v. U.S.,118 S Ct 1219,1227 (1998)..

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the state's compelling interest in preventing conuption or the appearance of corruption in the

political process, characterized the statute's infirmity as both its profound overbreadth and

underinclusion (Dodd at 561 So..2d 265-267)..

24. What MCEA has overlooked, however, is that Section 106.15( 4), F S , implicates

another compelling state interest-that of the government's duty to regulate its workforce and

property .. In this vein, restrictions on the speech and associational rights of governmental

workers will be upheld in order to promote the government employer's interest in promoting

efficiency and integrity in the discharge of government operations by maintaining proper

discipline, assming impartial execution of the law, promoting merit-based advancement,

attracting qualified workers by ensming job security, and protecting employees from political

extortion, United Pub. Workers of Am. v. Mitchell, (1947), 330 US .. 75, 96-97, 67 S Ct 556,

568, 91 LEd 754, 770- 771; United States Civ. Serv. Comm. v. Natl. Assn. of Letter Caniers.

(1973), 413 U.S 548, 565-566, 93 S .. Ct 2880, 2890-2891, 37 LEd2d 796, 808- 810; Broadrick

v. Oklahoma, (1973), 413 U.S 601, 606, 93 S.Ct 2908, 2912- 2913, 37 LEd.2d 830, 836

25 .. According to the stipulated facts (FOF 4-5), MCEA's members are directly involved

in political solicitation as part of their union membership solicitation activities MCEA's teacher

members would apparently "leaflet" other teachers by placing the solicitation forms in the

teachers in-school mailboxes located in the school buildings .. In essence, placing the forms in the

mailboxes apparently serves as a proxy for in-person solicitation in the school buildings Such

solicitation of governmental employees by othe1 governmental employees for political

contributions is clearly prohibitable whether it occurs on or off gove1nmental property, see

Mitchell. Letter Caniers . .supra.

26.. However,. Section 106.15(4), F .. S., addresses all solicitation in governmentally

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owned buildings-not only that instituted by other employees .. Therefore the speech and

associational rights of others are implicated-in this case MCEA itself.

27 Soliciting for political contributions falls within the ambit of protected First

Amendment speech, United States v. Kokinda, 497 US .. 720, 725, 110 S Ct 3115, 3118, 111

L Ed 2d 571, 580 (1990).. However, the First Amendment does not guarantee access to all

government property to people who wish to exercise their right to engage in constitutionally

protected speech, Cornelius v. NAACP Legal Defense & Educational Fund, 473 US 788, 799,

105 S Ct 3439, 3447, 87 L Ed.2d 567, 577-578 (1985); Peny Edn. Assn. v. Peny Local

Educators' Assn., 460 U.S 37, 46, 103 S Ct 948, 955, 74 LEd.2d 794, 805 (1983)

28 In recognition of the government's authority to preserve the property under its control

for its lawfully intended use, courts apply a "forum analysis" to determine "when the

/ Government's interest in limiting the use of its property to its intended purpose outweighs the I

interest of those wishing to use the property for other purposes .. " Cornelius, 473 U.S at 800, 105

S.Ct at 3448, 87 LEd.2d at 578-579 .. Under this analysis, the character of the public property at

issue determines the standard under which the question of access is determined and, hence, the

extent to which the government can control access Id at 800, 105 S Ct at 3448, 87 LEd 2d at

578-579; Perry, 460 US. at 44, 103 S Ct at 954, 74 LEd2d at 803-804 ..

29 .. There are three categories of fora: (1) traditional public fora, "places which by long

tradition or by government fiat have been devoted to assembly and debate"; (2) limited, or

designated, public fora, "public property which the State has opened for use by the public as a

place for expressive activity"; and (3) non-public fora, "[p]ublic property which is not by

tradition or designation a forum for public communication" Peny, 460 US. at 45-46, 103 S.Ct

at 954-955, 74 L Ed. 2d at 804-805 .. I

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30 The highest level of scrutiny is applied when the government denies access to

traditional and limited public fora, Kokinda, 497 US .. at 726, 110 S .. Ct at 3119, 111 L Ed 2d at

581 .. Under this standard, the government must establish that content-based exclusions are

necessary to serve a compelling state interest and are narrowly drawn to achieve that end, Perrx,

460 U.S. at 45- 46, 103 S.Ct at 955, 74 LEd.2d at 804-805 The state may enforce content­

neutral time-place-manner regulations upon solicitations that impact such forn only when they

are narrowly tailored to serve a significant government interest and leave open ample alternate

channels of communication Id. at 45-46, 103 S.Ct at 955, 74 LEd.2d at 804-805. However, to

justify denial of access to nonpublic fora, the government need only meet a reasonableness

standard, Kokinda, 497 US at 726, 110 S .Ct. at 3119, 111 L Ed 2d at 581

31 . The initial determination, therefore, that must be made is to define the relevant

forum. Merely identifying the government property at issue does not complete the analysis

Once it is determined that access is sought to public property, the analysis focuses on the access

sought, Id at 801, 105 S Ct at 3448, 87 L Ed2d at 579 .. When general access is sought, the

forum encompasses the entire property; however, when limited access is sought, the perimeters

of the forum are tailored to the access sought Id. at 801, 105 S .. Ct at 3448, 87 L Ed.2d at 579

32. The activity in which MCEA and its members wish to engage and which Section

106 . .15( 4), F. S .. , targets, involves solicitations for campaign contributions in governmentally

owned buildings (here schools) Thus, here the forum is a school building and involves portions

of the school building (teachers' mailboxes) which are plainly not open to the general public at

any time and are (by MCEA's own admission) an extension of the workplace A government

workplace during work hours, like any place of employment, is geared toward accomplishing the

government's business and is a nonpublic forum See Cornelius, 473 U..S.. at 805-806, 105 S .Ct

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at 3450--3451, 87 LEd..2d at 581- 583.. Therefore, if the restriction on solicitation is reasonable,

it is constitutional as applied to MCEA

33.. The restrictions placed upon MCEA's ability to solicit campaign contributions by

Section 106..15(4), F S .. , are reasonable .. It is clear that the statute is intended to keep political

solicitations out of the work place. Therefore, it is hardly umeasonable to prohibit such

solicitations inside governmental buildings .. Such a restriction plainly advances the state's goals

of increasing public worker efficiency and in decreasing the role of politics in the provision of

public services while having a minimal impact upon the employees and the solicitors right to get

together in other non-regulated fora-such as the workers' homes or in traditional areas of public

discourse

The Elements of the Offense and Their Application to MCEA's Activities ..

34 Section 106.15(4), F S., (1997), imposes several restrictions upon political activity

in governmentally owned buildings Initially, it provides that no "person"' shall make any

campaign "contribution"9 in such a building Second no "person" shall solicit or knowingly

accept any campaign "contribution" in such a building.. The law then goes on to define the term

"accept" as receiving a "contribution" by "personal hand delivery from a contributor or the

contributor's agent "

35.. Since MCEA has been charged only with "soliciting" a contribution, the elements

that must be shown for a violation of Section 106 15(4), F .. S, to be proven are (1) that MCEA'0

'Defined in Section 106 .. 011(8), F. S.

9Defined in Section 106 011(5), F S

'0MCEA is a "person" for pmposes of Chapter 106 in that it is an "organization"

representing education employees in matters relating to their terms and conditions of employment (FOF 1)..

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"solicited" (2) a "campaign contribution" (3) in a governmentally owned building and ( 4)

"willfulness .. " 11 In this case, the FEC has imposed a "clear and convincing" evidentiary standard

of proof as to each element .. 12

36. The Payroll Deduction Form utilized by MCEA and made a part of the Record as

Exhibit A can only be characterized as an authorization by each employee who signs it to allow

payroll deductions for, inter alia, the political purposes of MCEA and its parent organizations ..

Since, as the parties have stipulated (FOF 4), MCEA's representatives routinely distributed the

forms as part of the "solicitation of the membership," it is apparent that the distribution of the

forms was part of a calculated "solicitation "13 This element has been proven.

37 .. Next, it is apparent that MCEA solicited "campaign contributions " The form

(Exhibit A) provides that the funds collected from the employees will go to various political

action committees (national, state and local) wherein they will be used for purposes "including,

but not limited to, contributions to and expenditures on behalf of friends of education who are

11"Willfulness" is an element of virtually all violations of Chapter 106-unless the context clearly provides otherwise (see Sections 106.25(3) and 10637, F. S)

12It 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 Stern & Co., 670 So2d 932, 935 (Fla. 1996).. Latham v. Commission on Ethics, 694 So 2d 83 (Fla .. 1st DCA 1997), rev. den, 719 So .. 2d 287 (Fla .. 1998). Nevertheless the Commission finds that the evidence presented in this case meets a "clear and convincing" standard

13 While not defined in Chapter 106, the terms "solicit" and "solicitation" are here given their ordinary meaning Thus the FEC has used the definition set out in National Federation of Retired Persons v. Department ofins., 553 So2d 1289, 1290 (Fla 1st DCA 1989) wherein the court noted that the term '"Solicit' is defined in Webster's Third New International Dictionary, Unabridged (1981) as to 'entice' which is defined as 'to draw on by arousing hope or desire .. "' MCEA's purpose in seeking funds from its membership for political purposes was self-evidently to "draw" on the membership's "hope or desire" that the political agenda of the union would be furthered by the funds solicited and their use in the political process ..

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candidates for federal office " 14 It is apparent that the funds raised were "campaign

contributions" to political committees and thus the second element is proven. 15

38.. The third element is that the actions desc1ibed above occurred in "governmentally

owned buildings .. " The pa1ties have stipulated (FOF 4) that the fo1ms are placed in teachers'

mailboxes in schools in Mruion County by teacher/member volunteers ofMCEA, that the

mailboxes are located inside school buildings (FOF 5), and that all school buildings in Mruion

County are owned by the "government "(FOF 6) .. This element is proven.

39 .. The final element to be addressed is that of"willfolness" It is appruent that MCEA

was well aware of the provisions of Section 106.15(4), F.. S., when it engaged in its political

solicitation activities and was also awrue of the fact that its actions were in contravention of the

terms of the statute if they rue to be given their plain and 01dinary meaning (Brief at 4-5)

40 .. As a result, MCEA acted "willfully" in that it knowingly continued a course of action

that, by its own admission, was in contrnvention of the plain language of the law. It is true that

MCEA believed that it had a good defense for its actions based upon MCEA's reading of its

1ights under the Free Speech and Association provisions of the Flo1ida and Federal Constitutions

and upon its construction of the statute. The FEC does not dispute MCEA's good faith beliefin

its constitutional and textual positions, however, for the reasons set out above, these positions rue

simply not tenable as a matter oflaw.

41 The evidence is therefore overwhelming that MCEA intentionally acted in such a

14The rest of the form notes that the state and local political committees perform "similar function[ s) in connection with elections to state and local office "

"Section 106 15( 4), F.. S , uses the desc1iptive te1m "campaign" which appears to qualify the type of"contribution" covered by the statute .. Howeve1, all funds received by both political committees and candidates ru·e "campaign cont1ibutions" and are deposited by the "cainpaign treasurer" into the "campaign depository" and rue reported as such. (Sections 106.05, 106 .. 06, 106.07, F.. S . .)

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manner that it violated the plain terms of Section 10615(4), F. S While reliance on a good-faith

(though erroneous defense) may serve as mitigation to any monetary penalty under Chapter 106

(see Section 106.265(1)(d), F. S., it does not, under the facts of this case, obviate a finding of

"willfulness .. "

The Penalty

42 .. The FEC is charged with considering several factors in its determination of whether

and to what extent a monetary fine should be imposed (Section 106 265(1)(a)-( d), F S.) As

discussed above, the FEC recognizes as a mitigating factor MCEA's good faith effort to examine

the statute and to seek legal advice as a basis for its actions.. The Commission feels it incumbent

to point out that, however, Chapter 106 provides a "safe harbor" for those in doubt about their

duties under the Election Code through the opinion process which is available through the

Division of Elections (Section 106..23(2), F S.} 16

43 The Commission also recognizes, as further evidence ofMCEA's "good faith," that

it modified its Payroll Deduction Form (Exhibit B) to remove any proscribed solicitations, albeit

under protest, pending the results of these proceedings The Commission therefore declines to

impose any monetary penalty upon MCEA for its past transgressions of Section 10615(4), F.. S,

but by this decision serves notice that future violations will be treated more sternly

WHEREFORE it is hereby ORDERED and ADTUDGED that the Respondents be and the

same are found to be in violation of Section 106.15( 4), F.. S , and are admonished to comply with

16It is also distinctly possible that MCEA could seek a declaratory statement from the Commission .. It is true that Section 106.26(13), F S , precludes the FEC from issuing "advisory opinions .. " Section 120.565, F S , however, provides that "each agency" shall provide for the "prompt disposition" ofrequests for declaratory statements .. The question of the interplay between the two above discussed statutes is not before the Commission at this time, however, there does not appear to be any direct prohibition on the FEC responding to a properly framed request for a declaratory statement

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the statute in the future ..

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

of the Commission on May 17, 1999, in Tallahassee, Florida.

V ALERlE M. CROTTY, CHAIRMAN Florida Elections Commission Room 2002, the Capitol Tallahassee, Florida 32399-1050

NOTICE OF RIGHT TO APPEAL

Pursuant to Section 120 68, 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 foe

Copies furnished to:

Michael T McGuckin, Assistant General Counsel Ronald G Meyer, Attorney for Respondent Chuck Pardee, Complainant Supervisor of Elections, Marion County, Filing Officer

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