STATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS

In Re ILENE LIEBERMAN, )

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Respondent, ) CASE NO. 91-2831EC

) COMPLAINT NO. 90-19

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RECOMMENDED ORDER

This case came before Larry J. Sartin, a duly designated Hearing Officer of the Division of Administrative Hearings, upon the filing a Motion for Entry of Proposed Recommended Order.

APPEARANCES

For Petitioner: Virlindia Doss

Assistant Attorney General Department of Legal Affairs The Capitol, Suite 1601

Tallahassee, Florida 32399-1050

For Respondent: Samuel S. Goren, Esquire

3099 East Commercial Boulevard Suite 200

Fort Lauderdale, Florida 32308 STATEMENT OF THE ISSUES

Whether the Respondent, Ilene Lieberman, violated Section 112.313(6), Florida Statutes, by using her position to falsely accuse the complainant of sexually harassing a City employee and taking other actions in order to force the complainant to resign his position as Financial Director for the City of Lauderhill?

PRELIMINARY STATEMENT

On or about January 24, 1990, a Complaint was filed with the Florida Commission on Ethics (hereinafter referred to as the "Commission"). The Complaint was filed by Michael Arciola and contained allegations of misconduct by Ilene Lieberman, the Respondent in this case. Based upon a review of the Complaint against the Respondent, the Commission issued a Determination of Investigative Jurisdiction and Order to Investigate on May 15, 1990, ordering the staff of the Commission to conduct a preliminary investigation into whether the Respondent violated Section 112.313(6), Florida Statutes.

Following the Commission's investigation of the Respondent, a Report of Investigation was issued on January 7, 1991. Based upon the Complaint and the Report of Investigation an Advocate for the Commission issued an Advocate's Recommendation on February 4, 1991. The Advocate determined that there was no

probable cause to believe that the Respondent had violated Section 112.313(6), Florida Statutes.

Based upon the Report of Investigation and despite the Advocate's Recommendation, the Commission issued an Order Finding Probable Cause on March 12, 1991. The Commission ordered that a public hearing be conducted.

By letter dated May 8, 1991, the Commission referred this matter to the Division of Administrative Hearings and, in accordance with Rules 34-5.010 and 34-5.014, Florida Administrative Code, requested that the public hearing on the Complaint against the Respondent be conducted by the Division of Administrative Hearings.

The formal hearing of this case was scheduled for August 6, 1991. On July 16, 1991, the Advocate filed a Motion for Continuance. In the Motion, it was represented that the parties believed that they would be able to stipulate to certain facts and file a joint proposed order based upon depositions taken on June 18, 1991, and July 1 and 2, 1991. It was therefore represented that the parties did not believe that a formal hearing would be necessary. The Motion for Continuance was granted by Order entered July 16, 1991.

On September 10, 1991, the Advocate filed a Motion to Accept Depositions and Documents as Evidence. Pursuant to this Motion, the Advocate requested that certain depositions and documents be accepted as the evidence in this case. It was represented that the Respondent had no objection to the Motion.

Additionally, the Advocate and the Respondent filed a Motion for Entry of Proposed Recommended Order in which it was requested that a Recommended Order be entered in this case based upon the undersigned's independent review of the depositions and documents moved into evidence. This Motion was accompanied by a Joint Proposed Recommended Public Report.

The Motion to Accept Depositions and Documents as Evidence and the Motion for Entry of Proposed Recommended Order were granted by Order entered September 11, 1991.

The Joint Proposed Recommended Order filed by the parties contains proposed findings of fact. A ruling on each proposed finding of fact has been made either directly or indirectly in this Recommended Order or the proposed finding of fact has been accepted or rejected in the Appendix which is attached hereto.

FINDINGS OF FACT

1. The Respondent.

   
   

   1. The Respondent, Ilene Lieberman, is the Mayor of the City of Lauderhill, Broward County, Florida (hereinafter referred to as the "City"). The City is a municipal government in the State of Florida.

      
      

   2. The Respondent has served as Mayor of the City since March of 1988.

      
      

   3. For approximately four years prior to her election as Mayor, the Respondent served on the City Council of the City.

      
      

   4. At all times relevant to this proceeding, the Respondent served as Mayor of the City or on the City Council of the City.

2. The Initial Accusation of Sexual Harassment and the Decision to Investigate.

   
   

   1. From approximately 1988 to 1990, Vita Gunther was employed in the Finance Department of the City as a property control clerk.

      
      

   2. While employed in the City Finance Department, Ms. Gunther's immediate supervisor was Michael Arciola.

      
      

   3. Michael Arciola was employed by the City as finance director for the City on March 5, 1981.

      
      

   4. On Tuesday, July 12, 1988, Ms. Gunther requested a meeting with Robert Lee, assistant to the Respondent.

      
      

   5. Mr. Lee served as assistant to the Mayor of the City from 1984 to 1990. Mr. Lee was first hired as assistant to the Mayor by David Kaminsky, the Respondent's immediate predecessor.

      
      

   6. During the July 12, 1988, meeting with Mr. Lee, Ms. Gunther complained about the manner in which Mr. Arciola treated her as an employee. Ms. Gunther was upset and told Mr. Lee that Mr. Arciola's treatment of her made her feel very uncomfortable.

      
      

   7. Mr. Lee asked Ms. Gunther questions and she began to relate specific examples of Mr. Arciola's conduct, which will be described, infra.

      
      

   8. Following the July 12, 1988, meeting, Mr. Lee contacted Attorney Richard Weiss to determine how Ms. Gunther's complaint should be handled. Mr. Lee attempted unsuccessfully to contact Mr. Weiss on July 12, 1988. Mr. Lee speak to Mr. Weiss on July 13, 1988.

      
      

   9. Richard Weiss was an attorney hired by the City to provide legal counsel regarding labor matters. Mr. Weiss had been hired by the Respondent's predecessor in approximately 1987.

      
      

   10. Mr. Lee met with Ms. Gunther again on July 13, 1988. They met at a restaurant during Ms. Gunther's lunch break because Ms. Gunther wanted her complaint to remain confidential.

       
       

   11. During the July 13, 1988, meeting between Ms. Gunther and Mr. Lee, Mr. Lee, upon the advice of Mr. Weiss, took notes of the events which Ms. Gunther related to him.

       
       

   12. Ms. Gunther made the following allegations against Mr. Arciola during the July 13, 1988, meeting with Mr. Lee:

       
       

       Mike Arciola, the City's Finance Director and Vita's immediate supervisor called her at home on numerous occasions since she has worked for the City is working for City approximately one year.

       When Mike called, he asked whether he could come over to her house or go out to dinner with her. The most recent call was approximately 2 to 3 weeks ago. He again asked her out to dinner and when she refused,

       (as she always does), he asked whether he could come over to help her pack, as he knew she was planning to move to another house.

       She again said no, and explained to him that she wants nothing more than an employee/ employer relationship. Since that time, Mike has been very dictatorial, abrupt, and demanding of her work. She has gone home crying the last two nights.

       Up until 2 to 3 weeks ago, he made her feel uncomfortable by saying she smells nice, that she has a nice smile and a great body.

       She says that he has not threatened her job.

       As soon as Mike becomes aware that she is dating, he becomes short and dictatorial.

       She said she has never attended any functions with him, although asked many times.

       She said at Christmas he gave everyone in the department a basket of goodies: hers was the only one that included a stuffed animal.

       She claims she received a card which contained language that should not be given to an employee. She kept card.

       She said that Mike has talked to Valerie, a co-worker of Vita's, and told her that he's not getting to first base with Vita nor getting the time of day.

       Vita said that Valerie told her that this kind of harassment [sic] was the reason Mike's former secretary left.

       Mike also talked to another co-worker, Ruby, about Vita.

       Vita's roommate (female) and Vita's 12 year old daughter know of Mike's calls.

       Vita is afraid of Mike. She's afraid he

       will force her out of her job if she testifies. She's willing, though, to sign statement.

       
       

       The foregoing allegations were included in a document which Ms. Gunther swore to and signed on July 18, 1988. See Exhibit 5.

       
       

   13. The greeting card Ms. Gunther referred to in her statement included the following:

       
       

       In April, you can fool some of the people some of the time, and you can fool all of the people all of the time . . . and you can fool most of the people part of the time, and you can fool a lot of other people most of the time . . . . But you can fool around with me anytime! Happy April Fools' Day!

       
       

       Mr. Arciola acknowledged that he sent this note to Ms. Gunther.

       
       

   14. At the close of the meeting with Ms. Gunther on July 13, 1988, Mr. Lee told Ms. Gunther that the allegations were serious enough to require that he advise the Respondent. Ms. Gunther voiced not objection.

   15. Following the July 13, 1988, meeting with Ms. Gunther, Mr. Lee met with the Respondent and the City personnel director, Fritz Richter. Mr. Lee informed the Respondent of his meetings with Ms. Gunther and her allegations. Mr. Lee read his notes from his meeting with Ms. Gunther to the Respondent.

       
       

   16. During the meeting between Mr. Lee, the Respondent and Mr. Richter, on July 13, 1988, the Respondent spoke with Richard Michelson.

       
       

   17. Richard Michelson is the City Attorney for the City. Mr. Michelson has served as City Attorney since June 1, 1988.

       
       

   18. The Respondent, on advice from Mr. Michelson, also spoke to Mr. Weiss by telephone. Mr. Weiss advised that Ms. Gunther's allegations should be reduced to writing and should be sworn to by Ms. Gunther.

       
       

   19. The allegations made by Ms. Gunther were reduced to writing and were signed under oath by Ms. Gunther on Monday, July 18, 1988. Ms. Gunther's statement has been included in finding of fact 16, supra.

       
       

   20. The Respondent directed that the allegations made by Ms. Gunther be investigated.

       
       

   21. Based upon the information provided to the Respondent on July 13, 1988, she reasonably concluded that the allegations were serious and should be investigated.

       
       

3. The Decision to Suspend Mr. Arciola.

   
   

   1. Because of concerns expressed by Ms. Gunther and Mr. Weiss's advice, the Respondent decided that Ms. Gunther should not be required to return to her normal assignment to Mr. Arciola.

      
      

   2. On or about July 13 or 14, 1988, the Respondent assigned Ms. Gunther to a special project and told Ms. Gunther not to go back to her normal assignment. Ms. Gunther was told to report directly to the Respondent.

      
      

   3. The Respondent also informed Mr. Arciola that Ms. Gunther had been assigned to a special assignment and that Ms. Gunther would not be able to communicate with Mr. Arciola while on the special assignment. Mr. Arciola was not informed of the real reason that Ms. Gunther had been reassigned.

      
      

   4. The Respondent's action in reassigning Ms. Gunther were reasonable in light of the accusations Ms. Gunther had made and based upon the advice of counsel that to leave Ms. Gunther under Mr. Arciola's supervision after officials of the City had been made aware of the accusations would jeopardize the City's liability for any harm Ms. Gunther might be subjected to.

      
      

   5. The Respondent's action in reassigning Ms. Gunther and her instructions to Mr. Arciola were consistent with her power as Mayor.

      
      

   6. On July 14 or 15, 1988, Ms. Gunther informed Mr. Lee that Mr. Arciola had attempted to contact her. Ms. Gunther asked Mr. Lee what she should do.

      
      

   7. Based upon instructions from the Respondent, Mr. Lee met with Ms. Gunther and the City personnel director and instructed Ms. Gunther not to return Mr. Arciola's telephone calls or see him.

   8. Mr. Lee, in the presence of the personnel director, telephoned Mr. Arciola and reminded him of the Respondent's instructions about not contacting Ms. Gunther.

      
      

   9. The Respondent also reminded Mr. Arciola that he had been instructed not to contact Ms. Gunther. Mr. Arciola became abusive and, in blatant disregard for lawful instructions from the Respondent, indicated that he intended to reprimand Ms. Gunther if Ms. Gunther did not follow his instructions.

      
      

   10. On the morning of July 18, 1988, Mr. Arciola was waiting at the time clock when Ms. Gunther arrived at work and he gave her a letter of reprimand. In blatant disregard for the Respondent's orders to Mr. Arciola and, in an extreme case of overreaction, Mr. Arciola formally reprimanded Ms. Gunther for following the Respondent's orders and not his. Mr. Arciola informed Ms. Gunther, in part, as follows:

       
       

       You are charged under Civil Service Rules and Regulations, Separation, Retirement and Disciplinary Action, Section 4, Dismissal for:

       1. Willful violation of any lawful and reasonable regulation, or order or direction made or given by a superior officer where such violation has amounted to insubordination or serious breach of proper discipline or has resulted in loss or injury to the public.

       2. Failure to follow established Personnel Policy and Procedures.

          
          

          Exhibit 8. Mr. Arciola went on to state:

          
          

          I am really disappointed with you in the manner in which you have conducted yourself during the past two days, and I am sorry that the Mayor has created this terrible situation with a member of my staff who I regarded as a trusted employee.

          
          

   11. Mr. Arciola knew that Ms. Gunther had been told not to return his telephone calls and not to obey his orders. Mr. Arciola's action in reprimanding Ms. Gunther, despite his knowledge as to why she had not obeyed him, corroborated Ms. Gunther's allegations about Mr. Arciola.

       
       

   12. Ms. Gunther informed the Respondent of the formal reprimand from Mr. Arciola.

       
       

   13. After learning of Mr. Arciola's reprimand, the Respondent decided to suspend Mr. Arciola with pay on July 18, 1988. The reason why the Respondent suspended Mr. Arciola was explained by the Respondent as follows:

       
       

       A. After Vita had come up that morning with the memo on insubordination, we immediately tried to reach Rick Weiss as what do we do next? We told him to stay away from her. We told him not to have any contact. I

       specifically told him not to cite her for insubordination, which he threatened to do on Friday. He waist for her at the time clock and hands her this memo, which he was told Friday not to do. How am I going to calm Vita down and make sure that she doesn't feel that he's going after her and investigate her allegations when he's not following simple requests like, don't have any contact with her? And Mr. Weiss just said to us, you're not going to be able to do an investigation unless you suspend him.

       We suspended him with pay. We didn't suspend him without pay. Reason being is at that point all we had were allegations. We had not reached a determination as to whether or not the allegations were substantiated.

       So until we did that we suspended him with pay so that he would not be present at his job and we could conduct the investigation. Because Vita was going crazy as he pulled each new stunt.

       
       

       Deposition of the Respondent of July 1, 1991, page 87, lines 4-25 and page 88,

       lines 1-2.

       
       

   14. Mr. Weiss and Mr. Lee both recommended to the Respondent that she suspend Mr. Arciola before she made her decision.

       
       

   15. The Respondent's action in suspending Mr. Arciola was reasonable in light of the information she had at the time and Mr. Arciola's bizarre behavior. The Respondent's action tended to protect Ms. Gunther and the City, and was fair to Mr. Arciola.

       
       

   16. Mr. Arciola met with the Respondent and Mr. Lee sometime on July 18, 1988. Mr. Arciola was given a memorandum from the Respondent informing him that he was being placed on leave with pay, that he had been charged with sexual harassment of a subordinate female employee (Ms. Gunther) and that a pre- termination meeting had been scheduled for July 22, 1988, at which Mr. Arciola could respond to the charges. Exhibit 9.

       
       

   17. At the time that the Respondent gave Mr. Arciola Exhibit 9, the Respondent told Mr. Arciola that she did not know whether the allegations against him were true but that if he wanted an opportunity to resign she would give him such an opportunity. This action was reasonable in light of the aggravation to the City, the individuals involved and others that the Respondent probably anticipated would follow and, in fact, has followed as a result of Mr. Arciola's actions.

       
       

   18. Mr. Arciola ultimately informed the Respondent that he did not intend to resign.

       
       

   19. On July 20, 1988, upon the advice of Mr. Weiss, the Respondent sent Mr. Arciola a letter setting out in more detail the charges against him. Mr. Arciola was again informed that it had been recommended that he be terminated from employment with the City and he was reminded of his opportunity to explain

       his position on July 22, 1988, in person and/or in writing. Exhibit 11. The Respondent's action in sending the July 20, 1988, letter was reasonable.

       
       

4. The Investigation of Mr. Arciola.

   
   

   1. Mr. Weiss essentially directed the course of the investigation ordered by the Respondent.

      
      

   2. Interviews with various employees were conducted.

      
      

   3. On July 13, 1988, at approximately 5:00 p.m., Mr. Lee met with Valerie McCormick, a City employee who worked for Mr. Arciola. Mr. Lee took notes of this meeting. The meeting was also attended by the personnel director.

      
      

   4. During Mr. Lee's meeting with Ms. McCormick, she made the following allegations:

      
      

      Valerie said:

      She's aware of a problem between Mike [Arciola] and Vita [Gunther]. She said it's sexual harassment.

      She said she found out because both Vita and Mike have spoken to her. Valerie says that Mike told her he tries calling Vita at home and that he loved her.

      Valerie says Mike has told her that he's a very unhappy man with his home life (he's married) and that there is trouble between he and his wife.

      Valerie has witnessed Mike being very nasty to Vita since Vita was truthful with him about her feelings.

      Valerie said she witnessed the same sequence of events with Mary Mann, Mike's former secretary.

      Valerie said although she has no trouble with Mike, she feels it's because she won't let him and because she is much older.

      Valerie is willing to sign statement, but she's concerned about what would happen to

      her if Mike keeps his job after she does this.

      
      

      See Exhibit 7. These allegations were included in a statement which Ms. McCormick signed and swore to on July 18, 1988. Ms. McCormick's allegations corroborated some of the allegations against Mr. Arciola made by Ms. Gunther.

      
      

   5. Mr. Lee's involvement in the investigation was diminished after July 14, 1988, because of the City Attorney's involvement. The City Attorney actually carried out the investigation.

      
      

   6. On July 18, 1988, Phyllis Schneps, signed a sworn statement which corroborated Ms. Gunther's allegations concerning Mr. Arciola's rude treatment of female employees, including Ms. Gunther.

      
      

   7. On July 19, 1988, Mr. Michelson and the Respondent spoke with Ruby Levy, an employee of the City. Ms. Levy made the following statement during this meeting which she signed and swore to:

      1. I am the Director of Purchasing of the City of Lauderhill.

      2. Vita Gunther told me of the conduct of Michael Arciola towards here at the Lauderhill City Christmas party in 1987. I did not personally witness any of the incidents.

      3. After the 1987 Lauderhill Christmas party, Michael Arciola asked me to talk to Vita Gunther to attempt to encourage her to socialize with Arciola outside of their City

         employment, in effect to "date" Michael Arciola.

      4. For five years Michael Arciola has talked to me about his unhappiness with his current marriage.

      5. Mary Mann told myself and Valerie McCormick that Michael Arciola wanted to date her. Valerie McCormick told me she witnessed Michael Arciola treating Mary Mann very badly. See Exhibit 10. Ms. Levy's statement corroborated some of the allegations made by Ms. Gunther and Ms. McCormick.

         
         

   8. On or about July 27, 1988, the following statement, which had been signed under oath, was provided to the City Attorney by Mr. Arciola's attorney:

   
   

   BEFORE ME personally appeared Christopher

   1. Cannon, Esquire, who deposes and states:

      1. That I am legal counsel for a respected member of the community, whose name shall remain undisclosed.

      2. That Vita Gunther was employed by my client prior to her employment with the City of Lauderhill.

      3. That my client was charged by Vita Gunther with sexual misconduct and/or sexual harassment on or about February, 1987.

      4. That my client's reputation was extremely damaged as a result of Vita Gunther's mis-accusations. Furthermore, my client's family suffered a great deal of anxiety and damage as a result of Vita Gunther's mis-accusations.

      5. My client, wishes to remain undisclosed as to not cause further damage to himself or his family. However, my client feels compelled to come forward in an effort to inform the City of Lauderhill of Vita Gunther's background.

         
         

         Exhibit 13.

         
         

         1. Mr. Arciola's attorney also provided an affidavit from Mary Mann, a/k/a Mary Jones, a former secretary of Mr. Arciola mentioned in the statements of Ms. Gunther and Ms. McCormick, refuting the allegations Ms. Gunther and Ms. McCormick had mad about Mr. Arciola's treatment of Ms. Mann.

         2. On July 28, 1988, Ms. Gunther gave a sworn statement to the City Attorney. In this statement, Ms. Gunther was asked about the allegations contained in Mr. Cannon's statement. Ms. Gunther gave a reasonable explanation. Based upon this explanation and the lack of reliability of Mr. Cannon's anonymous hearsay accusations, the City Attorney concluded that little weight should be given to Mr. Cannon's statement. The City Attorney informed the Respondent, who had expressed concern about Mr. Cannon's statement, of his conclusions about Mr. Cannon's statement and the Respondent reasonably relied upon the City Attorney's conclusion about the statement.

            
            

         3. In the July 28, 1988, statement, Ms. Gunther also confirmed her previous statements and essentially corroborated previous accusations she and others had made against Mr. Arciola. Ms. Gunther also made additional specific allegations about Mr. Arciola's inappropriate behavior. Those allegations are set out in some detail in the Advocate's and Respondent's proposed finding of fact 25. The summary of the allegations contained in proposed finding of fact

            25 is a fair and reasonable summary and is hereby incorporated into this finding of fact. It is not necessary to decide whether the allegations are true and no such finding is made. What is relevant to this proceeding is that the allegations were made by Ms. Gunther under oath and the Respondent was made aware of the allegations.

            
            

         4. At some point after Mr. Arciola was suspended and during the investigation which followed, Mr. Arciola provided the City Attorney an Affidavit Mr. Arciola had executed on July 27, 1988. The Affidavit was provided in lieu of the pre-termination meeting the Respondent had offered. Exhibit 14.

            
            

         5. In Mr. Arciola's Affidavit, he set out some of the events leading up to the Affidavit, denied the charges against him, addressed some of the specific allegations made by Ms. Gunther, Ms. McCormick, and Ms. Ruby and made accusations against Ms. Gunther's character.

            
            

         6. Some of the statements made by Mr. Arciola corroborated the sexual harassment charges against him. Most, if not all, of the statements in the Affidavit did little to prove that he did not sexually harass Ms. Gunther.

            
            

         7. After Ms. Gunther learned of the accusations Mr. Arciola had made about her in his Affidavit and to the press, Ms. Gunther made allegations about possible illegal gambling activities of Mr. Arciola. Consequently, on August 3, 1988, the City Attorney took another sworn statement from Ms. Gunther and on August 19, 1988, the State Attorney's office took another sworn statement from Ms. Gunther. Exhibits 16 and 17.

            
            

5. Ms. Gunther's Cold Feet.

   
   

   1. At some point in the investigation, after all the accusations between Mr. Arciola and Ms. Gunther began to fly, after various City employees began making statements, favorable and negative, to Ms. Gunther and after the investigation began to proceed in a more serious and formal fashion than Ms. Gunther had anticipated, Ms. Gunther told the City Attorney that she was having doubts about whether she wanted to proceed.

      
      

   2. Ms. Gunther had also been pressured by at least one mutual friend of Mr. Arciola and Ms. Gunther to drop the charges against Mr. Arciola.

      
      

   3. The City Attorney suggested that Ms. Gunther speak to the Respondent. Therefore, Ms. Gunther and the City Attorney met with the Respondent and Ms.

      Gunther expressed her concerns. The Respondent informed Ms. Gunther that she could, of course, now indicate that her accusations against Mr. Arciola were incorrect but that the City could not simply drop its investigation. The Respondent explained to Ms. Gunther the potential liability of the City if it did not proceed with the investigation and the potential harm to other female employees if the charges were not fully investigated.

      
      

   4. The weight of the evidence failed to prove that the Respondent threatened Ms. Gunther in any manner when Ms. Gunther questioned whether the charges against Mr. Arciola could be dropped.

      
      

6. The Decision to Fire Mr. Arciola.

   
   

   1. On August 12, 1988, the Respondent suspended Mr. Arciola's employment with the City. At the time of this action, it was believed that the Respondent's action would require confirmation by the City Council.

      
      

   2. The Respondent's decision to suspend Mr. Arciola was based upon the events and information described in the foregoing findings of fact, all of which the Respondent was aware of at the time of her decision.

      
      

   3. The Respondent's decision was made after consultation with Mr. Weiss, the City Attorney, the personnel director and Mr. Lee. None of these individuals advised the Respondent that suspending Mr. Arciola was inappropriate. Mr. Lee in fact recommended that Mr. Arciola be terminated.

      
      

   4. The weight of the evidence failed to prove that the Respondent's decision on August 12, 1988, to terminate Mr. Arciola's employment with the City or any other action that the Respondent took up to that date was unreasonable.

      
      

   5. The weight of the evidence also failed to prove that the Respondent's decision on August 12, 1988, to terminate Mr. Arciola's employment with the City or any other action that the Respondent took up to that date was based upon any falsified, fabricated or misrepresented allegations against Mr. Arciola.

      
      

7. The City Council's Refusal to Confirm the Decision to Terminate Mr. Arciola.

   
   

   1. Although there is now some doubt as to whether required, the Respondent's decision to terminate Mr. Arciola was scheduled to be considered for confirmation before the City Council.

      
      

   2. Prior to the meeting at which the Respondent's decision was to be reviewed, Mr. Weiss telephoned one of the City Councilmen, John Brown. During this telephone call, Mr. Weiss informed Mr. Brown that Ms. Gunther had told him that she had dated Mr. Brown. Mr. Brown accused Mr. Weiss of attempting to blackmail him. Mr. Weiss contended that he was merely warning Mr. Brown so that he would not be surprised at the City Council meeting. The City Attorney later attempted to convince Mr. Brown that Mr. Weiss was not attempting to blackmail him; that Mr. Weiss had merely wanted to warn him.

      
      

   3. It is doubtful that Mr. Weiss was attempting to blackmail Mr. Brown. Such an attempt would have been incredibly stupid to make, Mr. Weiss would have to somehow control what Ms. Gunther said during the City Council meeting, there was a possible explanation for Ms. Gunther's comments and nothing wrong with any involvement Mr. Brown had had with Ms. Gunther, and there were others who know about the date that Ms. Gunther and Mr. Brown went on (a City picnic).

   4. It is not necessary to decide why Mr. Weiss called Mr. Brown. Regardless of whether Mr. Weiss was attempting to blackmail Mr. Brown, the weight of the evidence failed to prove that the Respondent had anything to do with the telephone conversation or the fact that Mr. Weiss spoke with Mr. Brown.

      
      

   5. On September 1, 1988, the City Council met and considered whether the Respondent's decision to suspend Mr. Arciola should be confirmed.

      
      

   6. The members of the City Council who participated in the decision of whether to confirm the Respondent's decision to terminate were Howard Berger, John Brown, Ben Dansker, Richard Kaplan and Matt Meadows.

      
      

   7. Councilmen Berger, Brown (despite his prior personal relation with Ms. Gunther), and Dansker voted against confirming Mr. Arciola's termination. Therefore, Mr. Arciola was reinstated as the Financial Director of the City.

      
      

   8. The weight of the evidence failed to prove that the City Council failed to confirm the Respondent's decision to terminate because the Respondent had falsely accused Mr. Arciola of sexually harassing Ms. Gunther or because the Respondent had taken any other actions in order to force Mr. Arciola to resign his position as Financial Director for the City.

      
      

   9. At best, the weight of the evidence proved that the City Council failed to confirm the Respondent's decision to terminate for political reasons (at least one City Councilman, Mr. Brown, intensely disliked the Respondent), because some City Councilmen were biased and had a preconceived position about the allegations against Mr. Arciola or because no evidence was presented to the City Council concerning the allegations against Mr. Arciola.

      
      

   10. Mr. Arciola was reinstated to his position with the City as a result of the City Council's action on September 1, 1988. Mr. Arciola remained in his position with the City until approximately September, 1989, when he resigned to take another position.

       
       

8. Arciola's Attempt to Get Even.

1. On January 24, 1990, Mr. Arciola filed a Complaint against the Respondent with the Commission. In the Complaint, Mr. Arciola accused the Respondent of maliciously and falsely accusing him of sexual harassment against Ms. Gunther and other actions in an attempt to force him to resign as Finance Director of the City.

   
   

2. In support of Mr. Arciola's Complaint, he presented an affidavit from Anthony Peccia dated December 21, 1989. Mr. Peccia contended that the Respondent asked him to lie during the City Council meeting of September 1, 1988. Ms. Gunther had made certain allegations about Mr. Peccia's involvement in this matter, i.e., that she told Mr. Peccia that Mr. Arciola was harassing her and that Mr. Gunther asked Mr. Peccia to speak to Mr. Arciola about it. At best, Mr. Peccia's sworn statement indicates that the Respondent and Mr. Weiss believed Ms. Gunther, asked Mr. Peccia to confirm her statements and, when he refused, assumed that he was concerned about being fired.

   
   

3. Mr. Arciola also filed an affidavit from John Brown dated December 21, 1989, with the Complaint. Mr. Brown's affidavit contains allegations concerning the telephone call from Mr. Weiss discussed, supra.

4. Finally, Mr. Arciola filed an affidavit from Ms. Gunther which she signed on December 20, 1989, in which Ms. Gunther stated the following:

   
   

   1. I never accused Michael Arciola of sexual harassment.

   2. Mayor Lieberman threatened me that if I was to drop this case, I would be fired.

      
      

      Exhibit 1.

      
      

5. Ms. Gunther's statement that she never accused Mr. Arciola of sexual harassment is not totally accurate. Ms. Gunther did, in fact, make such an accusation in her sworn statement of July 28, 1988. Ms. Gunther subsequently explained that what she meant when she said that she had not accused Mr. Arciola of sexual harassment was that when she first went to Mr. Lee she had merely attempted to get Mr. Arciola to quite treating her so mean.

   
   

6. Ms. Gunther's statement concerning the Respondent's alleged threat is based upon the events described in findings of fact 60-63. The weight of the evidence failed to prove that any such threat was made by the Respondent. Ms. Gunther's statement is not credible in light of all of the events which led up to Mr. Arciola's termination and the events which have occurred since Ms. Gunther's December 20, 1989, statement.

   
   

7. The Respondent was not aware of Mr. Peccia's statement of December 29, 1989, or Ms. Gunther's statement of December 20, 1989, when she took action against Mr. Arciola. These statements fail to prove that any action taken by the Respondent against Mr. Arciola was unreasonable or that she used her position in any manner to harm Mr. Arciola.

   
   

   1. The Final Word.

      
      

8. On July 1, 1991, Ms. Gunther's testimony was taken by deposition.

   
   

9. Ms. Gunther's testimony on July 1, 1991, corroborates her previous statements, including her statement to Mr. Lee which she signed on July 18, 1988, and she continued to stand by those statements.

   
   

   1. Conclusion.

   
   

10. The weight of the evidence failed to prove that the Respondent maliciously or falsely accused Mr. Arciola of sexual harassment or took any action against Mr. Arciola which was not reasonable or in any way intended to wrongfully force Mr. Arciola to resign his position with the City.

    
    

11. The weight of the evidence failed to prove that the Respondent used her public position to secure a special privilege, benefit or exemption for herself or others, or that she acted with a wrongful intent.

    
    

    CONCLUSIONS OF LAW

    
    

    1. Jurisdiction and Burden of Proof.

       
       

12. The Division of Administrative Hearings has jurisdiction of the parties to and the subject matter of this proceeding. Section 120.57(1), Florida Statutes (1989).

13. The burden of proof, absent a statutory directive to the contrary, is on the party asserting the affirmative of the issue of the proceeding. Antel v. Department of Professional Regulation, 522 So.2d 1056 (Fla. 5th DCA 1988); Department of Transportation v. J.W.C. Co., Inc. 396 So.2d 778 (Fla. 1st DCA 1981); and Balino V. Department of Health and Rehabilitative Services, 348 So.2d

    249 (Fla. 1st DCA 1977). In this proceeding it is the Commission, through the Advocate, that is asserting the affirmative: that the Respondent violated the Code of Ethics for Public Officers and Employees. Therefore, the burden of proving the elements of the Respondent's alleged violation was on the Commission.

    
    

    1. The Respondent's Alleged Violation of Section 112.313(6), Florida Statutes.

    
    

14. Section 112.313(6), Florida Statutes, provides:

    
    

    (6) MISUSE OF PUBLIC POSITION.--No public officer or employee of an agency shall corruptly use or attempt to use his official position or any property or resource which may be within his trust, or perform his official duties, to secure a special privilege, benefit, or exemption for himself or others. This section shall not be construed to conflict with s. 104.31.

    
    

15. A violation of Section 112.313(6), Florida Statutes, requires proof of the following elements:

1. The Respondent must have been either a public officer or a public employee.

2. The Respondent must have used or attempted to use her official position or property or resources within her trust, or performed her official duties:

   1. Corruptly; and

   2. With an intent to secure a special privilege, benefit or exemption for herself or others.

1. The First Element; Public Officer or Public Employee.

1. Section 112.313(1), Florida Statutes, defines the terms "public officer" to included "any person elected . . . to hold office in any agency . .

   . ." An "agency" is defined in Section 112.312(2), Florida Statutes, to include "any state, regional, county, local, or municipal government entity of this state "

   
   

2. The evidence proved that the Respondent was elected to, and did hold, the office of Mayor of the City of Lauderhill, a municipal government in the State of Florida. The Respondent also was elected to the City Council of the City. The Respondent was, therefore, a "public officer" as those terms are defined in Section 112.313(1), Florida Statutes.

2. The Second and Third Elements: Use of Official Position or Property or Resources and Action Corruptly done with an Intent to Secure a Special Privilege, Benefit or Exemption.

1. The second and third elements of a violation of Section 112.313(6), Florida Statutes, when considered together, have not been proved. There was evidence that the Respondent used her official position and performed her official duties to terminate Mr. Arciola's position with the City, but the evidence failed to prove that the Respondent used her official position or performed her official duties in terminating Mr. Arciola with the intent of securing any special privilege, benefit or exemption for herself or others. The evidence, in fact, proved that the Respondent's actions in terminating Mr. Arciola were reasonable and in the best interest of the City.

   
   

2. The evidence also failed to prove that any pertinent action that the Respondent took against Mr. Arciola was taken "corruptly." The term "corruptly" is defined in Section 112.312(7), Florida Statutes, as follows:

   
   

   (7) "Corruptly" means done with a wrongful intent and for the purpose of obtaining, or compensating or receiving compensation for, any benefit resulting form some act or omission of a public servant which is inconsistent with the proper performance of his public duties.

   
   

3. The weight of the evidence failed to prove that the Respondent is guilty of any part of this definition. Again, the Respondent's actions were reasonable and in the best interest of the City.

3. Conclusion.

99. Based upon the foregoing, it is concluded that the weight of the evidence failed to prove that the Respondent violated Section 112.313(6), Florida Statutes.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Commission on Ethics enter a Final Order and Public

Report finding that the evidence failed to prove that the Respondent, Ilene

Lieberman, violated Section 112.313(6), Florida Statutes, as alleged in Complaint No. 90-19.

DONE and ENTERED this 2nd day of October, 1991, in Tallahassee, Florida.

LARRY J. SARTIN

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 2nd day of October, 1991.

APPENDIX TO RECOMMENDED ORDER

The parties have submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted.

The Joint Proposed Findings of Fact

Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection

1 1-2.

2 3.

1. Hereby accepted.

2. 20 and hereby accepted.

3. To the extent relevant, accepted in 8-9.

4. To the extent relevant, accepted in 12.

7 7, 64 and 78.

8 5.

9 8 and 10.

10 12.

11 14.

12, page 5 Hereby accepted.

12, page 6 14-15.

13 17.

14 15-16.

15 87.

16-17 Hereby accepted.

18 25.

19 27.

20 30-31.

21 32-33.

22 34. The reprimand occurred on July 18, 1988, instead of July 28, 1988.

23 37.

24 54.

25 54-55.

26 87.

27 See 82-83.

28 46.

29 48.

30 44.

31 64.

32 68 and 88.

1. 88 and hereby accepted.

2. 89 and hereby accepted.

COPIES FURNISHED:

Virlindia Doss

Assistant Attorney General Department of Legal Affairs The Capitol, Suite 1601

Tallahassee, Florida 32399-1050

Samuel S. Goren, Esquire

3099 East Commercial Boulevard Suite 200

Fort Lauderdale, Florida 33308

Bonnie J. Williams Executive Director Commission on Ethics The Capitol, Room 2105 Post Office Box 6

Tallahassee, Florida 32302-0006

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.

Docket for Case No: 91-002831EC

Orders for Case No: 91-002831EC