WAS THAT WRONG? What Every County Attorney Needs to Know About The - - PowerPoint PPT Presentation

RONALD G. MEYER, ESQ.

MEYER, BROOKS, DEMMA AND BLOHM, P.A. 131 NORTH GADSDEN STREET TALLAHASSEE, FLORIDA 32301 WWW.MEYERBROOKSLAW.COM

WAS THAT WRONG?

What Every County Attorney Needs to Know About The Florida Election Code

Provisions Affecting Public Agencies

• Section 106.15 – “Certain Acts Prohibited”

– No candidate in furtherance of his or her election may use the services of any state, county, municipal, or district officer or employee during working hours – No person shall make and no person shall solicit or knowingly accept a political contribution in a governmentally owned building.

Provisions Affecting Public Agencies

• Section 106.113 – “Expenditures by local

governments”

– A local government or a person acting on behalf of a local government may not expend or authorize the expenditure of funds for a political advertisement or electioneering communication concerning an issue, referendum or amendment subject to vote of electors

Provisions Affecting Public Agencies

• Section 106.113 (cont’d)

– This section does not preclude an elected

• fficial of the local government from

expressing an opinion on any issue at any time – “Public funds” means all moneys under the jurisdiction or control of the local government

Provisions Affecting Public Agencies

• Section 104.31 – “Political activities of

state, county, and municipal officers and employees”

– No officer or employee may use official authority or influence for the purpose of interfering with or influencing another person’s vote

Provisions Affecting Public Agencies

• Section 104.31 (cont’d)

– May not directly or indirectly coerce any other

• fficer or employee to contribute any part of his
• r her salary or any money or anything else of

value to any party, committee, organization, agency or person for political purposes – However, contributions may be solicited in a non-coercive manner outside of government buildings

Provisions Affecting Public Agencies

• Section 104.31 (cont’d)

– A county employee may not participate in any political campaign for elective office while on duty – County employees may express opinions on any candidate or issue and participate in campaigns during the employee’s off-duty hours

Advisory Opinions

• DE 10-06

– Interprets Section 106.113 and states permissible activities

• DE 10-07

– Clarifies that statute only applies to political advertisements

• DE 12-05

– Describes lawful communications

If a Complaint is Filed

• Respondent, but not Complainant, is bound

by confidentiality unless waived in writing

• An early response and notice of appearance

is generally desirable

• Be aware that timelines in initial

correspondence may be enlarged upon request

If a Complaint is Filed

• The process followed by FEC is:

– Legal sufficiency is determined – Investigation is conducted – Report of investigation is issued and may be replied to – Recommendation of whether there is probable cause is made and may be replied to – Commission determines probable cause

If a Complaint is Filed

• If no probable cause is found, the case ends

and file materials become public

• If probable cause is found:

– Settlement options are available – Formal or informal trial is available – ALJ has final order authority if a formal hearing is requested

Ronald G. Meyer, Esquire Meyer, Brooks, Demma and Blohm, P.A. 131 North Gadsden Street Tallahassee, Florida 32302 850/878-5212 www.meyerbrookslaw.com

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WAS THAT WRONG?

What Every County Attorney Needs to Know About The Florida Election Code

Ronald G. Meyer, Esquire Meyer, Brooks, Demma and Blohm, P.A. 131 North Gadsden Street Tallahassee, Florida 32301 www.meyerbrookslaw.com I. Section 106.15, Florida Statutes (“Certain acts prohibited”), states as follows: (1) No person shall pay money or give anything of value for the privilege of speaking at a political meeting in the furtherance of his or her candidacy, nor shall anyone speaking for such a person pay money or give anything of value for such privilege. (2) No candidate, in the furtherance of his or her candidacy for nomination or election to public office in any election, shall use any state-owned aircraft or motor vehicle, as provided in chapter 287, solely for the purpose of furthering his or her candidacy. However, in the event a candidate uses any state-owned aircraft or motor vehicle to conduct official state business and while on such trip performs any function in the furtherance of his or her candidacy for nomination or election to public office in any election, the candidate shall prorate the expenses incurred and reimburse the appropriate agency for any trip not exclusively for state business and shall pay either a prorated share

• f all fixed and variable expenses related to the ownership, operation, and use of such

aircraft or one-half of the total fixed and variable expenses related to the ownership,

• peration, and use of such aircraft, whichever is greater. The reimbursement shall be

made from the campaign account of the candidate. (3) A candidate may not, in the furtherance of his or her candidacy for nomination or election to public office in any election, use the services of any state, county, municipal,

• r district officer or employee during working hours.

(4) No person shall make and no person shall solicit or knowingly accept any political 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 for the specific purpose of holding a campaign fund raiser. (5) Any person violating the provisions of this section commits a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083.

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II. Section 106.113, Florida Statutes (“Expenditures by local governments”), states as follows: (1) As used in this section, the term: (a) “Local government” means:

• 1. A county, municipality, school district, or other political subdivision in this

state; and

• 2. Any department, agency, board, bureau, district, commission, authority, or

similar body of a county, municipality, school district, or other political subdivision of this state. (b) “Public funds” means all moneys under the jurisdiction or control of the local government. (2) A local government or a person acting on behalf of local government may not expend

• r authorize the expenditure of, and a person or group may not accept, public funds for a

political advertisement or electioneering communication concerning an issue, referendum, or amendment, including any state question, that is subject to a vote of the

• electors. This subsection does not apply to an electioneering communication from a local

government or a person acting on behalf of a local government which is limited to factual information. (3) With the exception of the prohibitions specified in subsection (2), this section does not preclude an elected official of the local government from expressing an opinion on any issue at any time. III. Advisory Opinions from the Division of Elections Relating to Section 106.113, Florida Statutes are attached as an Appendix to this Outline A. DE 10-06 - Interprets Section 106.113 and describes permissible activities. B. Prohibitions are, generally, tied to the definition of a “political advertisement” set forth in Section 106.011(15), Florida Statutes, which provides: (15) “Political advertisement” means a paid expression in a communications medium prescribed in subsection (4), whether radio, television, newspaper, magazine, periodical, campaign literature, direct mail, or display or by means other than the spoken word in direct conversation, which expressly advocates the election or defeat of a candidate or the approval or rejection of an

• issue. However, political advertisement does not include:

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(a) A statement by an organization, in existence before the time during which a candidate qualifies or an issue is placed on the ballot for that election, in support

• f or opposition to a candidate or issue, in that organization’s newsletter, which

newsletter is distributed only to the members of that organization. (b) Editorial endorsements by a newspaper, a radio or television station, or any

• ther recognized news medium.

C. DE 10-07 – Confirms that the law no longer applies to non-candidate “electioneering communications” but clarifies that statute does apply to “political advertisements” D. DE 12-05 - Describes lawful communications which may be disseminated and sets forth the words which must be used for a message to constitute “express advocacy” which is an element of a “political advertisement” 1. In Buckley v. Valeo, 424 U.S. 1 (1976) the court held that Aexpress advocacy@ may be regulated and listed the words which establish express advocacy: Avote for,@ Aelect,@ Asupport,@ Acast your ballot for,@ ASmith for Congress,@ Avote against,@ Adefeat,@ Areject@ 2. The Florida Division of Elections, in Advisory Opinion DE 05-06 (September 21, 2005) adopted the Buckley standard in conjunction with Chapter 106, Fla. Stat. IV. Florida Elections Commission case alleging violation of Section 106.113, Florida Statutes (legal insufficiency determination attached as Appendix to this Outline) City of Coconut Creek Mayor Marilyn Gerber’s monthly column in a local magazine relating to the defeat of the “Hometown Democracy” amendment was deemed to be beyond the reach of the FEC since it did not constitute a “political advertisement.” V. Section 104.31, Florida Statutes (“Political activities of state, county, and municipal

• fficers and employees”), states as follows:

(1) No officer or employee of the state, or of any county or municipality thereof, except as hereinafter exempted from provisions hereof, shall: (a) Use his or her official authority or influence for the purpose of interfering with an election or a nomination of office or coercing or influencing another person’s vote or affecting the result thereof.

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(b) Directly or indirectly coerce or attempt to coerce, command, or advise any other

• fficer or employee to pay, lend, or contribute any part of his or her salary, or any money,
• r anything else of value to any party, committee, organization, agency, or person for

political purposes. Nothing in this paragraph or in any county or municipal charter or

• rdinance 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. (c) Directly or indirectly coerce or attempt to coerce, command, and advise any such

• fficer or employee as to where he or she might purchase commodities or to interfere in

any other way with the personal right of said officer or employee. The provisions of this section shall not be construed so as to prevent any person from becoming a candidate for and actively campaigning for any elective office in this state. All such persons shall retain the right to vote as they may choose and to express their

• pinions on all political subjects and candidates. The provisions of paragraph (a) shall not

be construed so as to limit the political activity in a general, special, primary, bond, referendum, or other election of any kind or nature, of elected officials or candidates for public office in the state or of any county or municipality thereof; and the provisions of paragraph (a) shall not be construed so as to limit the political activity in general or special elections of the officials appointed as the heads or directors of state administrative agencies, boards, commissions, or committees or of the members of state boards, commissions, or committees, whether they be salaried, nonsalaried, or reimbursed for

• expense. In the event of a dual capacity of any member of a state board, commission, or

committee, any restrictive provisions applicable to either capacity shall apply. The provisions of paragraph (a) shall not be construed so as to limit the political activity in a general, special, primary, bond, referendum, or other election of any kind or nature of the Governor, the elected members of the Governor’s Cabinet, or the members of the

• Legislature. The provisions of paragraphs (b) and (c) shall apply to all officers and

employees of the state or of any county or municipality thereof, whether elected, appointed, or otherwise employed, or whether the activity shall be in connection with a primary, general, special, bond, referendum, or other election of any kind or nature. (2) An employee of the state or any political subdivision may not participate in any political campaign for an elective office while on duty. (3) Any person violating the provisions of this section is guilty of a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083. (4) Nothing contained in this section or in any county or municipal charter shall be deemed to prohibit any public employee from expressing his or her opinions on any candidate or issue or from participating in any political campaign during the employee’s

• ff-duty hours, so long as such activities are not in conflict with the provisions of

subsection (1) or s. 110.233.

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VI. Complaints filed with the Florida Elections Commission (FEC) A. Respondent, but not Complainant, is bound by confidentiality unless waived in writing B. An early response and notice of appearance is generally desirable C. Be aware that timelines in initial correspondence may be enlarged upon request VII. Process followed by the FEC in processing complaints A. Legal sufficiency is determined B. Investigation is conducted C. Report of investigation is issued and may be replied to D. Recommendation of whether there is probable cause is made and may be replied to E. Commission determines probable cause 1. If no probable cause is found, the case ends and file materials become public 2. If probable cause is found: a) Settlement options are available b) Formal or informal trial is available c) ALJ has final order authority if a formal hearing is requested