STATE OF FLORIDA FLORIDA ELECTIONS COMMISSION ORDER OF NO PROBABLE CAUSE

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1 STATE OF FLORIDA FLORIDA ELECTIONS COMMISSION....~,,,-~ t.)'._.-_.1! ~ :; ; -, i ~~ "-'I IN RE: LEONARD D. BATES CASE No.: FEC F.O. No.: DOSFEC W I ~ ORDER OF NO PROBABLE CAUSE THIS CAUSE came on to be heard by the Florida Elections Commission at its regularly scheduled meeting held on February 17 & 18, 2005, in Tallahassee, Florida. Based on the complaint, report of investigation, statement of findings submitted by the staff, written statements submitted by the Respondent, and any oral statements made at the probable cause hearing, the Commission finds that there is no probable cause to charge the Respondent with the following violations: Section (1), Florida Statutes, prohibiting a person from falsely swearing or affirming an oath or procuring another to falsely swear or affirm an oath in connection with or arising out of voting or elections; and Section (2), Florida Statutes, prohibiting a person from submitting false voter registration information. Therefore, it is ORDERED that this case is DISMISSED. DONE AND ENTERED by the Florida Elections Commission and filed with the Clerk of the Commission on March 4, 2005, in Tallahassee, Florida. Chance Irvine, Chairman Florida Elections Commission 107 W. Gaines Street Collins Building, Suite 224 Tallahassee, FL P _ C007 (8/04)

2 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 appeals by filing a notice of appeal both with the Clerk of the Florida Elections Commission and the Clerk of the district court of appeals. The notice must be filed within 30 days of the date this final order was filed with the Clerk of the Commission and must be accompanied by the appropriate filing fee. Copies furnished to: Charles A. Finkel, General Counsel Leonard D. Bates, Respondent Colleen Fournier, Complainant Attachment: Statement offindings P_C007 (8/04)

3 FLORIDA ELECTIONS COMMISSION STATEMENT OF FINDINGS CASE NUMBER: FEC RESPONDENT: Leonard D. Bates COMPLAINANT: Colleen Fournier On July 13, 2004, the Florida Elections Commission received a sworn complaint alleging that the Respondent violated Chapter 104, Florida Statutes. The Commission staff investigated the allegations and based on the facts and conclusions of law contained in the Complaint, the Report of Investigation, and this statement, the staff recommends that there is no probable cause 1 to charge the Respondent with violating: Section (1), Florida Statutes, prohibiting a person from falsely swearing or affirming an oath or procuring another to falsely swear or affirm an oath in connection with or arising out of voting or elections; and Section (2), Florida Statutes, prohibiting a person from submitting false voter registration information. SUMMARY OF FACTS AND CONCLUSIONS OF LAW. 1. Respondent, Leonard D. Bates registered to vote in Lake County, Florida, on December 3, Respondent ran for the office of Selectmen for the Town of Monmouth, Maine on May 11, 2004, and again on August 10, He won both of those elections. Upon his request, his name was removed from the voter registration books of Lake County on June 14, Respondent states that he once supervised the Complainant's husband when the Respondent served as a sergeant in the Winthrop, Maine Police Department. 2. Complainant has been a resident of Monmouth, Maine since August 29, She states that she has never run for public office and has never served as a campaign treasurer. Her husband was an opponent of the Respondent in the May 2004 and August 2004 municipal elections held in Monmouth, Maine. 1 The term probable cause means a reasonable ground of suspicion supported by circumstances sufficiently strong to wanant a cautious person in the beliefthat the person has committed the offense charged.. Schmitt v. State, 590 So.2d 404,409 (Fla. 1991).. Probable cause exists where the facts and circumstances, of which an [imestigator] has reasonably trustworthy information, are sufficient in themselves for a reasonable man to reach the conclusion that an offense has been committed. Department of Highway Safety and Motor Vehicles v. Favino, 667 So 2d 305, 309 (Fla.. 1st DCA 1995). SofO 11 (8/04) 1

4 I. Section (1), Florida Statutes. 3. Investigator Malcolm Chellman examined whether the Respondent violated this section of the election laws by falsely swearing or affirming an oath and omitting information when he filed a Florida voter registration application. 4. Complainant alleges Respondent falsified his oath when submitting an application dated December 3, 2003 to register to vote in Lake County, Florida. She states Respondent was a registered voter in both Florida and Maine at the time he participated in a May 11, 2004 municipal election held in Monmouth, Maine. She states Respondent applied for a homestead exemption in both states as well, questions Respondent's residency status, and suggests that if the Town of Monmouth, Maine had access to information regarding these Florida activities, Respondent would not have been allowed to quali~y as a candidate for Town Selectmen in the state of Maine. 5. Emogene W. Stegall, Supervisor of Elections in Lake County, Florida, certified that Respondent was registered as a qualified elector in Lake County, Florida on December 3, 2003, and that he has not voted in Lake County, Florida. Included with Ms. Stegall's certificate was a copy of Respondent's December 3, 2003 voter registration application, and certification that Respondent's name was removed from the Lake County registration books on June 14, 2004 as requested by Respondent. A review of Respondent's Florida voter registration application revealed that Respondent affirmed through the act of signing the application that he was "a legal resident of Florida," and that Respondent did not respond to the application question asking for the address where the applicant was last registered to vote. Ms. Stegall's certificate clarified that "a voter registration application that does not contain the address where a voter was previously registered to vote is not rejected or treated as incomplete" by her office. 6. Investigator Chellman received a cover letter and certified copies of documents related to Respondent's Florida homestead exemption status from Ginger Casburn, exemptions supervisor in the Lake County Property Appraisers office. Respondent's application for a Florida homestead exemption was dated February 2, In this application, Respondent affirmed that he is a permanent resident of the state of Florida, and that he owns and occupies the Leesburg, Florida property listed on the application. Ms. Casburn stated that following a call from Respondent later that year, Respondent's application was voided on June 6, 2004 as requested. She states the exemption was voided before the tax bills were printed, and that no exemption was granted for Respondent's Florida property. The homestead application requested various items as proof of an owner's residence status, including a Florida voter registration number. 7. With the complaint filed in this case, Complainant submitted copies of the Respondent's Maine homestead exemption application dated April 29, 1998, and Respondent's Maine voter registration application dated February 10, A review of Respondent's Maine homestead exemption application revealed that he affirmed at that time that he was a legal resident of the state of Maine, and that his Maine homestead was his permanent place of residence. A review of the February 10, 1998 voter registration application revealed that this filing served to request a change of address to the address Respondent listed in his April 29, 1998 Maine homestead exemption application. SolD II (8/04) 2

5 8. Investigator Chellman received a packet of information pertammg to Respondent's 2004 candidacies and voting record from Steven A. Dyer, Town Manager of Monmouth, Maine. Mr. Dyer stated that Respondent was elected to a three-year term as a town selectmen on May 11, 2004, receiving 29% of the vote in a race for two seats. Following some local controversy in Monmouth related to whether Respondent met the residency qualifications to be elected and serve as a town selectmen, the town Board of Selectmen requested and received a July 12, 2004 legal opinion regarding the issues raised.. At the board's July 14, 2004 meeting, it was decided that the best course of action would be to set aside Respondent's May 11, 2004 election, vacate the selectmen seat at issue, and conduct a special election to refill the seat on August 10, Mr.. Dyer stated that Respondent won this special election, receiving approximately 46% of the vote.. Additionally, Mr. Dyer stated that Respondent voted in each of these 2004 Monmouth, Maine elections. 9. In a telephone interview, Richard Flewelling, an attorney with the Maine Municipal Association, stated that a candidate for municipal office in Maine is not required to be a resident of Maine, but is required to be a qualified resident of the municipality and a registered voter in Maine at the time of taking office. He stated that to be a registered voter in a Maine municipality an individual must be a resident of that municipality. He stated there is no fixed period of time required to establish Maine residency, and that an individual could rent an apartment and register to vote on the same day and would be considered a qualified resident for voting purposes. Mr. Flewelling also stated that Maine allows only one residency, but clarified that if a resident were to leave a Maine residency with the intention of returning at some point, the individual would still be considered a resident of Maine. He stated this distinction would cover "snowbirds," or individuals who visit other states for extended periods of time during winter. 10. Investigator Chellman received a copy of a July 27, 2004 letter written to the Complainant from the Florida Department of State (FDOS) regarding the results of their review of issues detailed in her complaint against Respondent for Alleged Voter Fraud in Voter Registration or Voting. In the complaint filed with FDOS, Complainant essentially lists the same facts and provides the same attachments as she submitted with her complaint filed with the Commission. The letter from FDOS to the Complainant states in pertinent part: Upon preliminary investigation, we do not find legal sufficiency for a potential violation of the Florida Election Code, based on the following: The state of Florida does not have a provision expressly prohibiting dual registration.. Mr. Bates' voter registration application contained solely the legally minimum required information, and thus satisfied the requirements of section (5), Florida Statutes. Mr. Bates never voted in Lake County, Florida, since he registered in December Mr. Bates' name is no longer on the voter registration rolls in Lake County, Florida, per his recent request to remove his name. SofOII (8/04) 3

6 11. In his response, Respondent stated that following his October 2002 retirement, he and his wife had "pretty much" decided to make Florida their residence and obtain a homestead exemption in Florida. Respondent stated that he and his wife completed one of the required tasks associated with applying for a homestead exemption in Florida when they registered to vote in Florida on December 3, He stated that at the time their Florida homestead exemption application was completed, February 2, 2004, he and his wife intended to become Florida residents. He stated that he was told by his contact in the Lake County Property Appraiser's office that he would be notified should his application be approved, and said that he intended to withdraw his Maine homestead exemption upon receiving notification. 12. Respondent stated that he was never notified of the status of his Florida homestead exemption application, and began to entertain the idea of running for a seat on the Board of Selectmen in Monmouth, Maine. He stated that during the nomination process he had not given much thought of his residency or homestead status knowing that he had never voted in Florida, and said that if he would be elected he would withdraw his Florida homestead exemption application. He stated that following his successful May 11, 2004 election, he withdrew his Florida homestead exemption application on June 9, That was verified in the June 14, 2004 letter from Lake County, Florida. 13. Respondent further stated that he used no specific criteria to determine that he was a legal resident of Florida. He stated that the voter registration application was just one of many things he was required to file for a Florida homestead exemption. He said that he would never have accepted homestead exemptions in both Maine and Florida, and that it would never be his intent to vote in both states. Respondent stated that he never consulted with anyone regarding the process of changing his residence from one state to another. He also stated that he has taken various steps to clearly re-establish Maine as his permanent residency, including completing a new Maine voter registration application, and re-registering his primary vehicle. Respondent stated that he served as a police officer approximately 21 years, the last 13 as a captain and deputy chief of a department in Maine, and that his integrity was never challenged during that time. 14. The term "legal residence" is not defined in the Florida Election Code? However, in FEC v.. Hutcheson, Case Number FEC , the Commission adopted the Administrative Law Judge's (ALJ) interpretation of legal residence, "The term 'legal residence' is a term which has an ordinary meaning which is understood by citizens to mean the place where a person lives." The available objective evidence in this case is insufficient to support a conclusion that Respondent did not live in this state when he registered to vote in Lake County, Florida on December 3, 2003, and when he applied for a homestead exemption on February 2, Chapters 97 through 106, Fla. Stat 3 ~ 62 of the ALJ's Reconunended Order in Hutcheson SotD II (8/04) 4

7 16. Under these circumstances, I recommend that the Commission find no probable cause that Respondent violated this section. II. Section (2), Florida Statutes. 17. Investigator Chellman examined whether the Respondent violated this section of the election laws by falsely swearing or affirming an oath and omitting information when he filed a Florida voter registration application. 18. As fully explained above, the available objective evidence in this case is insufficient to support a conclusion that Respondent did not live in this state when he registered to vote in Lake County, Florida on December 3, 200.3, and when he applied for a homestead exemption on February 2, 2004, 19. Under these circumstances, I recommend that the Commission find no probable cause that Respondent violated this section. III. Summary of Charges. 20. Under these circumstances, I recommend that the Commission find no probable cause that Respondent violated Chapter 104, Florida Statutes. Respectfully submitted on January 28, 2005, Charles A. Finkel General Counsel Copy furnished to: Barbara M. Linthicum, Executive Director Malcolm Chellman, Investigator Specialist SofO 11 (8/04) 5