FLORIDA ELECTIONS COMMISSION

FLORIDA ELECTIONS COMMISSION, PETITIONER,

V.

MARION COUNTY EDUCATION ASSOCIATION AND BRIAN CHANCE, RESPONDENTS,
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Case No. FEC 96-287
F.O. No.: DOSFEC 99-051-W
FINAL ORDER

This Cause came on to be heard before the Florida Elections Commission (FEC or Commission) at a meeting in Tallahassee, on February 10, 1999.

APPEARANCES
For Petitioner:
Michael McGuckin
Assistant General Counsel
Room 2002, The Capitol
Tallahassee, Florida 32399-0250

for Respondent:
Ronald G, Meyer
Meyer and Brooks, P.A.
254-4 Blairstone Pines Drive
Tallahassee, 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 violatin1g, Section 106.15(4), F S., (1997) by soliciting campaign contributions in a building owned by a governmental agency. After the, entry of the 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 pay-roll 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 of law contained in its staff's 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, 106.15(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 continuos from year to year unless the teacher affirmatively revokes membership with MCEA in accordance with Section 447.303, Florida Statutes (1997), or leaves employment.

4. During 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) available 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, during 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 current assessment of dues to the National teachers' union (the National Education Association), the state teachers' union (the Florida Teaching Profession-National Education Association, or FTP-KEA), MCEA local union and a fee assessed for administrative services provided by UniServ. MCEA's pay-roll deduction form also includes a set amount for the Florida Teaching Profession Political Action Council, a committee of continuous existence, and the FTP-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 of its members.

8. To become a member of MCEA 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 written 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 pay-roll deduction over the course of the school year. A teacher desiring a refund, must make that request in writing each year.

9. At the time of the alleged violation, Section 106.15(4),
Florida Statutes read:

18. Finally, MCEA asserts (Brief at 13) that the exemption from the constraints of Section 106-15(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(l), 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 unreasonable 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 106.15(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 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 structure, 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.

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. ⁽⁷⁾ MCEA correctly notes that the right to seek political support through solicitation of "contributions" implicates the First Amendmentguarantees 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 state's compelling interest in preventing corruption 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, assuring impartial execution of the law, promoting merit-based advancement, attracting qualified workers by ensuring job security, and protecting employees from political extortion, United Pub. Workers of Am. v. Mitchell, (1947), 330 U.S. 75, 96-97, 67 S.Ct, 556, 568, 91 L.Ed. 754, 770- 771; United States Civ. Serv. Comm. v. Natl. Assn. of Letter Carriers, (1973), 413 U.S. 548, 565-566, 93 S.Ct. 2880, 2890-2891, 37 L.Ed.2d 796, 808- 810; Broadrick v. Oklahoma, (1973), 413 US. 601, 606, 93 S.Ct. 2908, 2912-2913, 37 L.Ed.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 other governmental employees for political contributions is clearly prohibitable whether it occurs on or off governmental property, see Mitchell, Letter Carriers, supra.

26. However, Section 106.15(4), F. S., addresses all solicitation in governmentally 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 U.S. 720, 725, 110 S.Ct. 3115, 3118, 111 L.Ed,2d 571, 590 (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 y. NAACP Legal Defense &,. Educational Fund, 473 U.S. 788, 799, 105 S.Ct. 343 9, 3447, 87 L.Ed.2d 567, 577-578 (1985); Perry Edn. Assn. v. Perry Local Educators' Association, 460 U.S. 37, 46, 103 S.Ct. 948, 955, 74 L.Ed,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 interest of those wishing to use the property for other purposes." Cornelius, 473 U.S. at 800, 105 S.Ct, at 3448, 87 L.Ed.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 L.Ed.2d at 579-579; Perry, 460 U.S. at 44,103 S.Ct, at 954, 74 L.Ed.2d. 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." Perry, 460 U.S. at 45-46, 103 S.Ct. at 954-955, 74 L.Ed.2d at 804-805.

30. The highest level of scrutiny is applied when the government denies access to traditional and limited public fora, Kokinda, 497 U.S. at 726, 110 S.Ct. at 3119, 111 L.Ed.2d at 581. Under this standard, the government must establish that context-based exclusions are necessary to serve a compelling state interest and are narrowly drawn to achieve that end, Perry, 460 U.S. at 45-46, 103 S.Ct. at 955, 74 L.Ed.2d at 804-805. The state may enforce content-neutral time-place-manner regulations upon solicitations that impact such fora 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 L.Ed.2d at 804-805. However, to justify denial of access to nonpublic fora, the government need only meet a reasonableness standard, Kokinda, 497 U.S. 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.Ed.2d 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. at 3450-3451, 87 L.Ed.2d at 561-583. 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 unreasonable 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 got together in other non-regulated fora-such as the workers' homes or in traditional areas of public discourse.

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 ⁽¹⁰⁾ "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 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 described above occurred in "governmentally owned buildings." The parties have stipulated (FOF 4) that the forms are placed in teachers' mailboxes in schools in Manion County by teacher/member volunteers of MCEA, that the mailboxes are located inside school buildings (FOF 5), and that all school buildings in Marion County axe owned by the "government." (FOF 6). This element is proven.

40. As a result, MCEA acted "willfully" in that it knowingly continued a course of action that, by its own admission, was in contravention 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 rights under the Free Speech and Association provisions of the Florida and Federal Constitutions and upon its construction of the statute. The FEC does not dispute MCEA's good faith belief in its constitutional and textual positions, however, for the reasons set out above, these positions are simply not tenable as a matter of law.

41. The evidence is therefore overwhelming that MCEA intentionally acted in such a manner that it violated the plain terms of Section 106.15(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(l)(d), F. S., it does not, under the facts of this case, obviate a finding of "willfulness."

43. The Commission also recognizes, as further evidence of MCEA'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 106.15(4), F. S., but by this decision serves notice that future violations will be treated more sternly.

WHEREFORE it is hereby ORDERED and ADJUDGED 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 the statute in the future.

DONE AND ORDERED by the Florida Mcctions Commission and filed with the Clerk of the Commission on May 17, 1999, in Tallahassee, Florida.

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

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

1. 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.

2. While Section 106,25(5), F. S., provides that Section 120.569 and 120.57(l), 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.

3. For 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."

4. MCEA 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.

5. Political activities of state, county, and municipal
officers and employees. -
(1) No officer or employee of the state, or of any county or municipality thereof, except as hereinafter exempted from provisions hereof, shall:
(b) Directly or indirectly coerce or at tempt to coerce, command, or advise any other officer or employee to pay, lend, or contribute any part of his or her salary, or any money, or 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 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.

6. Other unlawful 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 similar public installations. This section shall not be construed to prohibit the distribution of literature during the
employee's lunch hour or in such areas not specifically devoted to the, performance of the employee's official duties.

7. The doctrine has a lengthy and honorable pedigree. As Justice Holmes stated long ago, "[a] statute must be construed, 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. 394, 401, 36 S.Ct. 658, 659, 60 L.Ed. 1061 (1916), Almendarez-Torres v. U.S., 118 S.Ct. 1219,1227 (1998).

8. Defined in Section 106.011 (8), F. S.

9. Defined in Section 106.011(5), F. S.

10. MCEA is a "Person" for purposes of Chapter 106 in that it is an "organization" representing education employees in matters relating to their terms and conditions of employment FOF 1).

11. "Willfulness" is an element of virtually all violations of Chapter 106-unless the context clearly provides otherwise (see Sections 106.25(3) and 106,37, F.S.)

12. It 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. Osbourne Stern & Co., 670 So.2d 932, 935 (Fla. 1996). Latham v. Commission on Ethics, 694 So. 2d 83 (Fla. 1^st 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 of Ins., 553 So.2d 120, 1290 (Fla 1^st 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.

14. The 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."

15. Section 106.15(4), F. S,, uses the descriptive term "campaign" which appears to qualify the type of "contribution" covered by tho statute. However, all funds received by both political committees and candidates are "campaign contributions" and are deposited by the "campaign treasurer" into the "campaign depository" and are reported as such. (Sections 100.03, 100.06, 106.07, F. S.)

16. It 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" of requests 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.