STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

In Re STEPHEN A. WITKOWSKI, )

)

Respondent, ) CASE NO. 91-7980EC

) COMPLAINT NO. 90-93

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RECOMMENDED ORDER

Pursuant to written notice, a formal hearing was held in this case before Larry J. Sartin, a duly designated Hearing Officer of the Division of Administrative Hearings, on April 14, 1992.

APPEARANCES

For Petitioner: Virlindia Doss

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

Tallahassee, Florida 32399-1050

For Respondent: Stephen A. Witkowski, pro se District 1

Cudjoe Substation

Cudjoe Key, Florida 33042 STATEMENT OF THE ISSUES

Whether the Respondent, Stephen A. Witkowski, violated Section 112.313(3), Florida Statutes, by, in his official capacity, purchasing goods from a company of which he was a director and a stockholder; and

Whether Mr. Witkowski violated Section 112.313(7), Florida Statutes, by serving on the Board of Directors of, and owning stock in, Caribbean Computers, Inc., a company doing business with the Monroe County Sheriff's Office, while simultaneously being employed by the Monroe County Sheriff's Office.

PRELIMINARY STATEMENT

On or about May 25, 1990, a Complaint against the Respondent, Stephen A. Witkowski, was filed with the Florida Commission on Ethics (hereinafter referred to as the "Commission"). Based upon a review of the Complaint, the Commission issued a Determination of Investigative Jurisdiction and Order to Investigate on September 10, 1990, ordering the staff of the Commission to conduct a preliminary investigation into whether Mr. Witkowski violated Sections 112.313(3) and 112.313(7), Florida Statutes.

Following the Commission's investigation of the allegations against Mr.

Witkowski, a Report of Investigation was released on March 29, 1991. Based upon

the Complaint and the Report of Investigation the Advocate issued an Advocate's Recommendation on May 3, 1991. The Advocate determined that there was probable cause to believe that Mr. Witkowski had violated Sections 112.313(3) and 112.313(7), Florida Statutes.

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

By letter dated December 11, 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 Mr. Witkowski be conducted by the Division of Administrative Hearings.

The hearing was scheduled for April 14, 1992, in Key West, Florida. On April 8, 1992, the Advocate filed a Motion to Conduct Hearing by Telephone. The Advocate represented that she did not intend to call any witnesses and that Mr. Witkowski did not intend to present any testimony other than his own. The Advocate also represented that Mr. Witkowski had agreed that the hearing should be conducted by telephone. An Order Granting Motion to Conduct Hearing By Telephone was entered on April 9, 1992, and the parties were informed by telephone that the hearing would be conducted by telephone.

The Advocate and the undersigned participated in the final hearing from a public hearing room of the Division of Administrative Hearings in Tallahassee, Florida. Mr. Witkowski and the court reporter participated from the offices of the court reporter in Key West, Florida.

Prior to the formal hearing the parties filed a pre-hearing statement containing stipulated findings of fact. Those facts have been accepted in this Recommended Order.

At the formal hearing the Advocate presented the deposition testimony of Mr. Witkowski. The Advocate also offered eight exhibits (including Mr.

Witkowski's deposition) which were accepted into evidence. Mr. Witkowski testified on his own behalf. Mr. Witkowski offered no exhibits.

The parties stipulated that no transcript of the hearing would be ordered and that they would not file proposed recommended orders.

FINDINGS OF FACT

I. GENERAL.

1. The Respondent.

   
   

   1. The Respondent, Stephen A. Witkowski, has been employed by the Monroe County, Florida, Sheriff's Office (hereinafter referred to as the "Sheriff's Office"), since June 28, 1982. [Stipulated Fact.]

      
      

   2. At all times relevant to this proceeding, Mr. Witkowski served as an "employee" subject to Sections 112.313(3) and 112.313(7), Florida Statutes.

      
      

   3. Mr. Witkowski was promoted to Captain and Jail Commander on September 14, 1988. [Stipulated Fact.]

   4. Mr. Witkowski's immediate supervisor while serving as Jail Commander was Major Michael Somberg. [Stipulated Fact.]

      
      

2. Caribbean Computers, Inc.

   
   

   1. Articles of Incorporation for Caribbean Computers, Inc., (hereinafter referred to as "Caribbean"), were filed with the Florida Secretary of State's Office on February 16, 1988. [Stipulated Fact.]

      
      

   2. On March 18, 1988, Mr. Witkowski purchased ten shares of Caribbean and was elected to the Board of Directors of Caribbean. [Stipulated Fact.]

      
      

   3. Mr. Witkowski purchased the ten shares of Caribbean for ten dollars at one dollar a share. [Stipulated Fact.]

      
      

   4. Mr. Witkowski made inquiry with legal counsel for the Sheriff's Office concerning possible conflicts of interest which might be caused by his participation in Caribbean.

      
      

3. Purchase of Equipment from Caribbean.

   
   

   1. During 1988 the Sheriff's Office had extra funds to purchase equipment.

      
      

   2. In September, 1988, four days after being designated as Jail Commander, Mr. Witkowski requested in writing of Major Somberg, his immediate supervisor, that the Sheriff's Office purchase a computerized telephone answering system for the jail. [Stipulated Fact.]

      
      

   3. Major Somberg had authority to approve the requested purchase. [Stipulated Fact.]

      
      

   4. On September 20, 1988, Mr. Witkowski completed a requisition form to purchase $2,093.95 of computer/telephone equipment from Caribbean. [Stipulated Fact.] The Sheriff's Office received full value for the purchase.

      
      

   5. In September, 1988, Mr. Witkowski was aware that Caribbean had made other sales to the Sheriff's Office.

      
      

   6. The September 20, 1988, requisition was approved and the Sheriff's Office received delivery of, and made payment for, the equipment. [Stipulated Fact.]

      
      

   7. Between February 16, 1988, and May 8, 1990, the Sheriff's Office purchased various other products from Caribbean which Mr. Witkowski was not directly involved in. [Stipulated Fact.]

      
      

4. Mr. Witkowski's Disposition of His Interest in Caribbean.

1. In December, 1989, after an investigation of Caribbean, Mr. Witkowski resigned from the Board of Directors of Caribbean. In May, 1989, Mr. Witkowski sold his stock in Caribbean. [Stipulated Fact.]

   
   

2. Mr. Witkowski sold his Caribbean stock for $500.00, resulting in a profit of $490.00. [Stipulated Fact.] Mr. Witkowski did not otherwise profit from his interest in Caribbean.

3. The proceeds of the sale for the Caribbean stock were forwarded to the former Mrs. Witkowski.

   
   

   CONCLUSIONS OF LAW

   
   

   1. Jurisdiction and Burden of Proof.

      
      

4. The Division of Administrative Hearings has jurisdiction of the parties to and the subject matter of this proceeding. Section 120.57(1), Florida Statutes (1991). Section 112.322, Florida Statutes, and Rule 34-5.0015, Florida Administrative Code, authorize the Commission to conduct investigations and make public reports on complaints concerning violations of Part III, Chapter 112, Florida Statutes (the "Code of Ethics for Public Officers and Employees").

   
   

5. 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 Mr. Witkowski violated Sections 112.313(3) and 112.313(7), Florida Statutes. Therefore, the burden of proving the elements of Mr. Witkowski's alleged violations was on the Commission.

   
   

   1. Mr. Witkowski's Alleged Violation of Sections 112.313(3) and 112.313(7), Florida Statutes.

      
      

6. Section 112.313(3), Florida Statutes, provides, in pertinent part, the following:

   
   

   (3) DOING BUSINESS WITH ONE'S AGENCY.--No employee of an agency acting in his official capacity as a purchasing agent, or public officer acting in his official capacity, shall either directly or indirectly purchase, rent, or lease any realty, goods, or services for his own agency from any business entity of which he . . . is an . . . director . . . or in which such officer or employee . . . has a material interest. Nor shall a public officer or employee, acting in a private capacity, rent, lease, or sell any realty, goods, or services to his own agency, if he is a state officer or employee, or to any political subdivision or any agency thereof, if he is serving as an officer or employee of that political subdivision. . . .

   
   

7. Section 112.313(7), Florida Statutes, provides, in pertinent part, the following:

   
   

   1. CONFLICTING EMPLOYMENT OR CONTRACTUAL RELATIONSHIP.--

      1. No public officer or employee of an agency shall have or hold any employment or contractual relationship with any business

         entity or any agency which is subject to the regulation of, or is doing business with, an agency of which he is an officer or employee, excluding those organizations and their officers who, when acting in their official capacity, enter into or negotiate a collective bargaining contract with the state or any municipality, county, or other political subdivision of the state; nor shall an officer or employee of an agency have or hold any employment or contractual relationship that will create a continuing or frequently recurring conflict between his private interests and the performance of his public duties or that would impede the full and faithful discharge of his public duties.

         . . . .

         
         

8. The term "agency" is defined in Section 112.312(2), Florida Statutes, to mean "any state, regional, county, local, or municipal government entity of this state, whether executive, judicial, or legislative . . . ." The Sheriff's Office is an "agency" for purposes of Sections 112.313(3) and 112.313(7), Florida Statutes.

   
   

9. Although the term "employee" is not specifically defined in Section 112.313, Florida Statutes, the evidence proved that Mr. Witkowski was employed by the Monroe County, Florida, Sheriff's Office. Therefore, Mr. Witkowski was an "employee" for purposes of Sections 112.313(3) and 112.313(7), Florida Statutes.

   
   

10. The evidence also proved that Mr. Witkowski was the director and held an ownership interest in Caribbean, a private business doing business with the agency that employed Mr. Witkowski.

    
    

11. Turning to the alleged violation of Section 112.313(3), Florida Statutes, this Section prohibits public employees who serve as purchasing agents for their employers from purchasing from their own business interests. It also prohibits employees, regardless of whether they are purchasing agents, from representing their private interests by selling goods from their own business interests to their employers.

    
    

12. The evidence in this case proved that Mr. Witkowski was involved in the purchase by the Sheriff's Office of equipment from a business in which he was a director. Although the evidence failed to prove that Mr. Witkowski purchased the equipment from Caribbean in the capacity as a purchasing agent for the Sheriff's Office, the evidence did prove that Mr. Witkowski, as an employee of the Sheriff's Office, acted in his private capacity to sell the equipment on behalf of Caribbean to his own agency while he served as a director of Caribbean. See Commission on Ethics Opinion 76-115. Mr. Witkowski violated Section 112.313(3), Florida Statutes.

    
    

13. The evidence also proved that Mr. Witkowski violated Section 112.313(7), Florida Statutes. The Commission has previously determined that corporate stock ownership creates a contractual relationship. Commission on Ethics Opinion 81-73 and Commission on Ethics Opinion 79-16, citing Douglas v. State Bank of Orlando, 52 So. 593 (Fla. 1919). Therefore, Mr. Witkowski held a

    contractual relationship with Caribbean while Caribbean was doing business with the agency that employed Mr. Witkowski.

    
    

    1. Penalty.

    
    

14. Section 112.317, Florida Statutes, provides penalties which may be imposed for a violation of the Code of Ethics for Public Officers and Employees. Section 112.317, Florida Statutes, provides, in pertinent part, the following:

    
    

    (1) Violation of any provision of this part . . . shall, pursuant to applicable constitutional and statutory procedures, constitute grounds for, and may be punished by, one or more of the following:

    . . . .

    1. In the case of an employee . . .:

       1. Dismissal from employment.

       2. Suspension from employment for not more than 90 days without pay.

       3. Demotion.

       4. Reduction in salary level.

       5. Forfeiture of no more than one-third salary per month for no more than 12 months.

       6. A civil penalty not exceed $5,000.

       7. Restitution of any pecuniary benefits received because of the violation committed.

       8. Public censure and reprimand.

       
       

       The Advocate, during closing argument, recommended that a civil penalty of

       $500.00 be imposed on Mr. Witkowski for each violation.

       
       

15. The Advocate agreed that Mr. Witkowski had been very cooperative in the handling of this case, that the Sheriff's Office had received full value for the purchases made from Caribbean and that Mr. Witkowski had not retained the proceeds from the sale of his stock in Caribbean. The Advocate took these mitigating circumstances into consideration in recommending a $1,000.00 civil penalty.

    
    

16. Mr. Witkowski contended during his closing argument that he had asked an attorney about possible conflicts of interest, that he had only been in charge of the jail for four days before recommending the purchase from Caribbean and that he had not profited from his association with Caribbean. Mr. Witkowski did, however, profit from his association with Caribbean. He realized a gain on the sale of his stock of $490.00 even though he did not get to keep it.

    
    

17. All of the foregoing mitigating circumstances have been taken into account. Based upon consideration of the nature of the offenses and the mitigating circumstances it is concluded that Mr. Witkowski should be required to pay a total fine of $750.00.

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 Respondent, Stephen A. Witkowski, violated Sections 112.313(3) and 112.313(7), Florida Statutes, as alleged in Complaint No. 90-93. It is further

RECOMMENDED that Mr. Witkowski be required to pay a civil penalty of

$750.00.

DONE and ENTERED this 22nd day of April, 1992, 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 22nd day of April, 1992.

COPIES FURNISHED:

Virlindia Doss

Assistant Attorney General Department of Legal Affairs The Capitol, Suite 101

Tallahassee, Florida 32399-1050

Stephen A. Witkowski District 1

Cudjoe Substation

Cudjoe Key, Florida 33042

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

Tallahassee, Florida 32302-0006

Docket for Case No: 91-007980EC

Orders for Case No: 91-007980EC