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Willfulness Rule in Election Law May Pose Problem

A little-noticed rule challenge could have big consequences for the appointed panel responsible for enforcing the state’s election laws.

Attorneys for a former Hillsborough County commissioner have asked a state administrative judge to throw out a rule currently being used by the Florida Elections Commission. The rule attempts to define the circumstances in which someone can be found to have violated election laws.

Unlike criminal laws, the election laws overseen by the commission require proof that someone must have willfully broken them. The commission rule states that in order for a violation to be “willful” someone must have known they were breaking the law, or showed “reckless disregard” to the law, which can include being “plainly indifferent” to legal requirements.

But attorneys for Brian Blair, a former professional wrestler who was defeated in his re-election bid last year, contend that the Elections Commission has overstepped its legal authority in relying on the rule, especially since it mirrors a provision that was removed from state law in 2007.

The current rule was adopted just days before the repeal was set to take effect.

Blair is fighting charges that in 2008 he accepted two campaign contributions beyond the legal limit, saying the mistake was due to a glitch with campaign software.

One veteran election law attorney predicts that if the rule is thrown out it could impact the ability of the commission to move forward on election law cases.

“It’s a big deal,’’ said Tallahassee attorney Ron Meyer. “That rule contains the only definition of willfulness that is there. If the rule were to be determined invalid, it certainly would pose problems with the commission.’’

Bucky Mitchell, the former staff director for the House Ethics and Elections Committee and who is now working for Blair in the case, refused to comment on the pending rule challenge.

Over the last several years state lawmakers have changed how the elections commission can pursue election law cases, including a controversial change in 2007 that required that election law complaints be based on “personal knowledge.”

But Jorge Cruz-Bustillo, a Miami attorney and current chairman, said he wasn’t sure if the rule challenge would impact the work of the panel in the future.

He said the commission could still attempt to define what a “willful’’ violation of the law is even if the rule is thrown out. Cruz-Bustillo said that the commission could rely on other civil rulings as it moves forward, even though he concedes that could lead to another legal challenge.

“I think we are doing a great job at trying to do our best,’’ he said.

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