STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

IN RE: JAN PARTIN, )

) CASE NO. 92-7318EC

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Mary Clark, held a formal hearing in the above- styled case on July 8, 1993, in Winter Haven, Florida.

APPEARANCES

For the Advocate, Claire D. Dryfuss, Esquire Florida Commission on Acting Advocate

Ethics: Commission on Ethics

Office of the Attorney General The Capitol, PL-01

Tallahassee, Florida 32399-1050

For Respondent: Robert H. Grizzard, II, Esquire

Post Office Box 992

Lakeland, Florida 33802-0992 STATEMENT OF THE ISSUES

On December 6, 1991 the Florida Commission on Ethics found probable cause that Jan Partin, while employed as Administrative Assistant to the Winter Haven Housing Authority's Executive Director violated section 112.313(6), F.S. by coercing a Mr. and Mrs. Carrerou into making a loan to a potential witness in a federal court trial involving the Housing Authority and by representing to the Carrerous that the Housing Authority would repay the loan.

The issue for disposition in this proceeding is whether that violation occurred, and if so, what penalty is appropriate.

PRELIMINARY STATEMENT

The order finding probable cause was forwarded to the Division of Administrative Hearings on December 7, 1992 with a request to conduct a public hearing and provide a recommended order to the Commission.

After consultation with the parties, the hearing was scheduled for April 22, 1993. It was cancelled, at the parties' request, when settlement appeared likely, but the hearing was reset when the informal resolution did not materialize. The hearing then proceeded as set forth above.

At the hearing the Acting Advocate presented testimony of the following: Timothy Keaton, Oswald Carrerou, Leah Carrerou and Katherine Reddick. The following Advocate's exhibits were received in evidence: #P-1, #P-4, #P-6 through #P-10.

Respondent testified in her own behalf and presented the testimony of Katherine Reddick, Sylvia Ibanez, James Lear, Herbert Lopez and Lovett Johnson. Respondent's exhibits #1, #2, #3, #4, #13 and #19 were received in evidence.

The transcript was filed on August 2, 1993 and the Acting Advocate filed a proposed recommended order on September 2, 1993. Her proposed findings of fact are substantially adopted here.

FINDINGS OF FACT

1. Respondent, Jan Partin (Partin), during all times relevant to this proceeding, was the administrative assistant to the executive director of the Winter Haven Housing Authority, in Winter Haven, Florida. In that capacity she exercised responsible administrative, supervisory and technical management functions in assisting the executive director. In the absence of the executive director, she was totally responsible for the operation of the housing authority.

   
   

2. Oswald and Leah Carrerou, husband and wife, owned rental property in Winter Haven, and in 1989 and 1990 were landlords in the housing authority's Section 8 program, a program funded by the U.S. Department of Housing and Urban Development (HUD) to provide rental assistance to eligible tenants. The Carrerous were the second landlords brought into the authority's program, and in late 1989, early 1990, had more tenants than other landlords in the program.

   
   

3. As Section 8 landlords, the Carrerous received monthly checks from the housing authority. In January and February 1990, those checks were $3,512.00 and $3,810.00, respectively, representing approximately sixty percent of the Carrerou's total rental income at that time.

   
   

4. The Carrerou's primary staff contact with the housing authority with regard to the Section 8 Program was Jan Partin. This included contacts regarding tenants, leases, landlord/housing authority contracts, and rental payments. As it was a new program, the contacts were frequent, several times a week, by telephone and in person at the housing authority office.

   
   

5. As executive director, Ash Ahmad was the formal administrator of the Section 8 Program. Ahmad trained Partin and another staff person in the program and Partin's contacts with the Carrerous were part of her routine functions.

   The Carrerou's perception that she had some control over their continued participation and receipt of rents was reasonable, even if not technically nor legally correct.

   
   

6. In early 1990, Partin called Oswald Carrerou and asked if he would consider making a loan to a person who was very important to the housing authority, a witness in a federal case involving a tenant. Partin said the person needed money to pay his lawyer in a child custody dispute. Carrerou was concerned about the appearance and legitimacy of the transaction. He was not in the business of making personal loans, except in the context of his buying and selling real estate, in which cases the loans were secured by a mortgage. When he asked about collateral, Partin said something about a CD coming due and that he would be paid off then. Partin suggested that a note would be prepared, but did not say who would sign the note. Reluctantly, and with the concern that he had little choice, given his financial circumstances and reliance on the Section

   8 rents, Carrerou agreed to the loan.

7. Timothy Keaton was the person who was to receive the loan. Keaton met Partin in 1988 when his girlfriend, April Marshall, was living in a Winter Haven Housing Authority housing project. Keaton lived with Marshall off and on without being included in the lease; the couple had two children together. Keaton and Partin developed a close personal relationship and they began dating; Partin loaned and gave him money. Partin became involved in a custody dispute regarding the Keaton/Marshall children, a case which also involved the Department of Health and Rehabilitative Services. Partin urged Keaton to hire a lawyer to get custody away from Marshall and she recommended a lawyer to him. This was the lawyer to whom the loan money was to be paid.

   
   

8. At the same time that the custody dispute was pending, the housing authority was sued in federal court by Keaton's sometime girlfriend, Marshall, and other plaintiffs who were contesting their evictions. Partin was the legal liaison for the housing authority and worked closely with Sylvia Ibanez, the attorney for the housing authority in the Marshall lawsuit and other litigation.

   
   

9. Keaton agreed to testify against Marshall and on behalf of the housing authority in the federal case. He gave a deposition attended by Partin, Attorney Ibanez and Marshall's attorney. This was around the same time that Partin sought the loan to pay Keaton's lawyer.

   
   

10. Keaton and another man appeared at Carrerou's office with a note signed by Keaton's mother, Oreatha K. Ogletree, dated February 16, 1990. The note stated that she would be responsible for the loan of $1200 to her son, and that she would make the payment in March 1990, when her CD matured. After assuring himself that the lawyer was indeed representing Keaton, and that Oreatha K. Ogletree was Timothy Keaton's mother, Oswald Carrerou gave Keaton a check for $1200 payable to Robert Doyel, the attorney. The check is dated February 16, 1990. Carrerou had never met nor seen Keaton before that day. Because of cash flow problems, Carrerou borrowed the $1200 from his wife's VISA credit card account at 18 percent interest in order to make the loan to Keaton.

    
    

11. Keaton did not sign the note, although there was a space on the note for his signature and social security number. Moreover, instead of taking the check to the lawyer's office that afternoon as was arranged, he tore it into three pieces. He did not want to be responsible for the money and did not want his mother to be responsible either.

    
    

12. Sometime later, but before the end of February 1990, Partin called Leah Carrerou and told her that the Keaton children had spilled something on the check or had torn it, and that another check was needed immediately. Keaton had an appointment with the lawyer that afternoon and the lawyer would not see him without the check. Partin said she would send someone over to pick it up, and someone from the Housing Authority did come to get the check from Mrs. Carrerou. Later, Mrs. Carrerou realized her check was written on the wrong account and, after speaking to the lawyer's secretary for approval, she mailed a substitute check for $1200, dated February 28, 1990, to Robert Doyel.

    
    

13. The Carrerous were never repaid their $1200. After the end of thirty days, Leah Carrerou called Partin, who assured that she would get her money. After about five or six subsequent similar calls, the Carrerous sued Oreatha Ogletree on the note. A final judgement in favor of Oswald Carrerou was entered on July 9, 1990, by Polk County Judge, Harvey A. Kornstein. Later, Oswald Carrerou filed a satisfaction of that judgement when he learned that Timothy Keaton had torn up his original check to avoid binding himself or his mother.

    Keaton believed that Jan Partin had come up with the money for the lawyer. Keaton did not know that Partin had obtained another check from the Carrerous.

    
    

14. The federal case was eventually settled without the need for Keaton to testify at a trial. Meanwhile, Keaton got back together with April Marshall and appeared at the custody hearing on her side.

    
    

15. Commonly, and within the Housing Authority's function of providing services to tenants or other members of the public, housing authority staff make referrals to other social services agencies or resources. The referral of Timothy Keaton to a landlord in a housing authority program was not within the scope of that appropriate function. The greater weight of evidence established that it was Partin's romantic relationship with Keaton, rather than any eleemosynary impulse that motivated her misguided efforts on his behalf.

    
    

    CONCLUSIONS OF LAW

    
    

16. The Division of Administrative Hearings has jurisdiction in this proceeding pursuant to section 120.57(1), F.S., and Florida Commission on Ethics rule 34-5.010, F.A.C.

    
    

17. Section 112.313(6), F.S., 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 be not construed to conflict with s. 104.31.

    
    

    "Corruptly" is defined in Section 112.312(9), F.S.:

    
    

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

    
    

18. Jan Partin was, at the time of the incident at issue, an "employee of an agency" as provided in sections 112.313(6), F.S., and 112.312(2), F.S.

    
    

19. The greater weight of credible evidence established that Jan Partin used her official position in order to obtain a loan from the Carrerous to benefit a man with whom she was intimately involved. That he was also a witness for the housing authority provided the excuse, but not the lawful justification, for her pressure on the Carrerous. Her wrongful intent is determined from the circumstances surrounding her relationship with Keaton and the Carrerou's relationship with the housing authority. The Acting Advocate proved the first violation of section 112.313(6), F.S., by Jan Partin.

    
    

20. The order finding probable cause states also that Partin represented to the Carrerous that the Housing Authority would repay the loan. That was not

    proven. At most, the evidence established that Jan Partin kept assuring the landlords that the loan would be repaid. The Carrerous could have inferred that the housing authority itself was going to provide the payment, but no evidence established that Jan Partin made that specific representation.

    
    

21. The acting advocate has suggested a penalty of restitution and a fine of $5000 for each violation. Section 112.317, F.S., establishes the types of penalties which may be imposed for violations of the code of ethics, which penalties vary in some regard, depending on whether the individual is still employed or is a public officer. The evidence here did not establish Ms. Partin's current status, but only her status during the relevant period. The penalties suggested by the Acting Advocate are appropriate under section 112.317, F.S., for both existing and former officers or employees and are, therefore, incorporated in this recommendation.

RECOMMENDATION

Based on the foregoing, it is, hereby, RECOMMENDED:

That the Commission on Ethics enter its final order finding that Jan Partin violated section 112.313(6), F.S., and recommending restitution in the amount of

$1200 and a civil penalty of $5000.

DONE AND RECOMMENDED this 22nd day of December, 1993, in Tallahassee, Leon County, Florida.

MARY CLARK

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 December, 1993.

COPIES FURNISHED:

Claire D. Dryfuss, Esquire Acting Advocate

Commission on Ethics

Office of the Attorney General The Capitol, PL-01

Tallahassee, Florida 32399-1050

Robert H. Grizzard, II, Esquire Post Office Box 992

Lakeland, Florida 33802-0992

Bonnie Williams, Executive Director Ethics Commission

Post Office Drawer 15709 Tallahassee, Florida 32317-5709

Phil Claypool, General Counsel Ethics Commission

Post Office Drawer 15709 Tallahassee, Florida 32317-5709

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.

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AGENCY FINAL ORDER

=================================================================

BEFORE THE STATE OF FLORIDA

COMMISSION ON ETHICS

In re JAN PARTIN, Complaint No. 91-29

Final Order No. COE 94-12

Respondent. DOAH No. 92-7318EC

/

FINAL ORDER AND PUBLIC REPORT

This matter came before the Commission on Ethics on the Recommended Order rendered in this matter on December 22, 1993, by the Division of Administrative Hearings' Hearing Officer. The Hearing Officer recommends that the Commission issue its public report and final order finding that Respondent violated Section 112.313(6), Florida Statutes. She also recommends a penalty of $1,200 restitution and $5,000 civil penalty, for a total of $6,200. The Respondent telefaxed his exceptions to the Commission on January 14, 1994, at 6:02 p.m.

They were filed with the Commission on January 18, 1994--its next business day.

Having reviewed the Recommended Order, the Respondent's Exceptions, and the record of the public hearing of this complaint, and having heard arguments of counsel for the Respondent and the Commission's Advocate, the Commission makes the following findings, conclusions, rulings, and recommendations:

STANDARDS FOR REVIEW

Under Section 120.57(1)(b)10, Florida Statutes, an agency may reject or modify the conclusions of law and interpretations of administrative rules contained in the recommended order. However, the agency may not reject or modify findings of fact made by the Hearing Officer unless a review of the entire record demonstrates that the findings were not based on competent, substantial evidence or that the proceedings on which the findings were based did not comply with the essential requirements of law. See, e.g., Freeze v. Dept. of Business Regulation, 556 So.2d 1204 (Fla. 5th DCA 1990); and Florida Department of Corrections v. Bradley, 510 So.2d 1122 (Fla. 1st DCA 1987).

Competent, substantial evidence has been defined by the Florida Supreme Court as such evidence as is "sufficiently relevant and material that a reasonable mind would accept it as adequate to support the conclusions reached." DeGroot v.

Sheffield, 95 So.2d 912, 916 (Fla. 1957).

The agency may not reweigh the evidence, resolve conflicts therein, or judge the credibility of witnesses, because those are matters within the sole province of the hearing officer. Heifetz v. Dept. of Business Regulation, 475 So.2d 1277, 1281 (Fla. 1st DCA 1985). Consequently, if the record of the DOAH proceedings discloses any competent, substantial evidence to support a finding of fact made by the Hearing Officer, the Commission is bound by that finding.

RULINGS ON RESPONDENT'S EXCEPTIONS TO FINDINGS OF FACT

1. Respondent excepts to the last sentence of the Hearing Officer's finding which states: "In the absence of the Executive Director, she was totally responsible for the operation of the Housing Authority." Respondent argues that although the record would support that Respondent would be in the office and take calls, etc., the record also is clear that she did not have full responsibility or authority to act in the absence of the Executive Director.

   
   

   Respondent's exception is rejected. See Respondent's Exhibit No. 19. As stated by the court in Heifetz v. Department of Business Regulation, Division of Alcoholic Beverages & Tobacco, 475 So.2d 1277, 1281 (Fla. 1st DCA 1985):

   
   

   It is the hearing officer's function to consider all the evidence presented, resolve conflicts, judge credibility of witnesses, draw permissible inference from the evidence, and reach ultimate findings of fact based on competent substantial evidence. State Beverage Department v. Ernal. Inc., 115 So.2d

   566 (Fla. 3d DCA 1959). If, as is often the case, the evidence presented supports two inconsistent findings, it is the hearing officer's role to decide the issue one way or the other.

   
   

   It is not our function to reweigh the evidence or to rewrite the Hearing Officer's finding as long as there is competent substantial evidence to support the finding, as there is here.

   
   

2. Respondent excepts to the Hearing Officer's findings in paragraph 2 of her Findings of Fact. Respondent argues that the conclusion is not supported by the record. For the reasons stated in paragraph 1 above, Respondent's exception is rejected.

3. Respondent excepts to the Hearing Officer's findings in paragraph 4 of her Findings of Fact. Respondent argues that while the record would support that the Carrerous had frequent contact with the Respondent, the record also clearly shows that Respondent did not sign any of the leases with them nor was she the primary person in charge of the Section 8 program for the Housing Authority.

   
   

   For the reasons set forth in paragraph 1 above, Respondent's exception is rejected. See also Transcript pp. 66-69 and 115- 119.

   
   

4. Respondent excepts to the Hearing Officer's finding in paragraph 5 of her Findings of Fact. Respondent argues that the record does not support the "implication" of the fact finder that Mr. Ahmad's control of the Section 8 program was merely "formal," nor that the Carrerous' perception was reasonable. Respondent asserts that the Carrerous were told many times that Respondent was not in charge of the Section 8 program.

   
   

   Initially, we note that the finding states: "As Executive Director, Ash Ahmad was the formal administrator of the Section 8 program." We do not glean any other "implication" from that statement. We find that statement also is supported by competent substantial evidence of record. See Tr. pp. 277-278.

   For the reasons stated in paragraph 1 above, we reject Respondent's exceptions.

   
   

5. Respondent excepts to paragraph 6 of the Hearing Officer's Findings of Fact. Respondent argues that the record does not support the finding that Respondent called Mr. Carrerou, and that the remaining findings are "seriously contradicted" in the record. Respondent contends that there is no evidence that Respondent prepared the "note in question," and the record also is clear that because Mr. Carrerou received the note given by Mr. Keaton's mother mentioning her certificate of deposit, he believed that he had security for his loan.

   
   

   For the reason stated in paragraph 1 above, Respondent's exception is rejected. As stated above, it is the function of the hearing officer to resolve conflicts, to judge credibility of witnesses, to draw permissible inferences from the evidence, and to reach ultimate findings of fact based on competent substantial evidence, as she did here. It is not our function to reweigh the evidence as there is competent substantial evidence to support the Hearing Officer's findings. Inasmuch as the Hearing Officer fulfilled her function of weighing the evidence, judging the credibility of witnesses, and drawing permissible inferences from the evidence, Respondent's exceptions are rejected.

   
   

6. Respondent excepts to paragraph 7 of the Hearing Officer's Findings of Fact. Respondent asserts that the record is disputed and that there is no "extrinsic evidence" to support a finding that there was any "untoward relationship" between the Respondent and Mr. Keaton. Respondent asserts that she loaned and gave monies to others besides Mr. Keaton, and no illicit relationship was implied thereby. Respondent also contends that the record reflects that HRS became involved in the custody dispute. She claims that at a later hearing Mr. Keaton and Ms. Marshall acted together, contrary to Respondent's belief as to what was in the best interests of the children, and that Mr. Keaton was not happy with Respondent for supporting HRS in the matter. She claims that the Hearing Officer's findings are not supported by the record.

   
   

   For the reasons stated in paragraph 1 and 6 above, Respondent's exceptions are rejected.

7. Respondent excepts to paragraph 9 of the Hearing Officer's Findings of Fact. Respondent claims that Mr. Keaton asked to testify in the Federal law suit. She claims that the "implication" emanating from the Hearing Officer's use of "agree" is not supported by the record. She asserts that Ms. Ibanez, the Housing Authority's attorney, did not find Mr. Keaton to be a good witness and had no intention of using him.

   
   

   For the reason stated in paragraphs 1 and 6 above, Respondent's exception is rejected. See Tr. 23. Inasmuch as the Hearing Officer fulfilled her function of weighing the evidence, judging the credibility of the witnesses, and drawing permissible inferences from the evidence, we are not free to supplement her findings. As the Court stated in Manasota-88, Inc. v. Tremor, 545 So.2d 439 (Fla. 2d DCA 1989):

   
   

   Agency fact-finding independent of and supplementary to DOAH proceedings has been specifically disapproved. See e.g. Friends of Children v. Department of Health and Re- habilitative Services, 504 So.2d 1345 (Fla.

   1st DCA 1987).

   
   

   Whether or not Attorney Ibanez intended ultimately to use Mr. Keaton's testimony in the Federal proceeding, as Respondent contends, is immaterial to the Hearing Officer's finding.

   
   

8. Respondent excepts to paragraph 13 of the Hearing Officer's Findings of Fact and, presumably, specifically with the Hearing Officer's finding that the Carrerous were never repaid their $1200. Respondent claims that the record indicates that judgment was entered in favor of the Carrerous when they sued Mrs. Oglegtree and her son, Mr. Keaton. She argues that "the law is clear that entry of a judgment pays the underlying debt and converts it into a judgment lien," and the fact that Mr. Carrerou decided to forgive the lien does not reinstate the underlying debt. [Emphasis added.]

   
   

   The Hearing Officer's findings are supported by substantial competent evidence of record, therefore, Respondent's exception is rejected. We also note that Respondent is incorrect in her statement of the law. "A debt reduced to judgment merges with it, and a judgment is sometimes characterized as a debt."

   32 Fla. Jur. 2d, Judgments and Decrees, sec. 80. The entry of a judgment does not, in and of itself, "pay" anything.

   
   

9. Respondent excepts to paragraph 14 of the Hearing Officer's Findings of Fact. Respondent argues that although the Hearing Officer's finding technically is correct, the record does not reflect any intention for Mr. Keaton be a witness in the federal case.

   
   

   For the reasons stated in paragraph 1 and 6 above, Respondent's exception is rejected. There is competent substantial evidence of record to support the Hearing Officer's findings.

   
   

10. Respondent excepts to paragraph 15 of the Hearing Officer's Findings of Fact. Respondent argues that the greater weight of the evidence does not establish that Respondent had any motive beyond that of helping one of the residents or the children of the client. She argues further that Respondent was concerned for the children of April Marshall far more than she was concerned for Mr. Keaton. She claims that Mr. Keaton had not wanted to take the children from Ms. Marshall, but that, she felt that he was a better parent than their mother.

    Because there is competent substantial evidence of record to support the Hearing Officer's findings and, in making her findings, the Hearing Officer properly fulfilled her function of judging the credibility of the witnesses, weighing the evidence, and drawing permissible inferences therefrom, Respondent's exception is rejected.

    
    

    RULING ON RESPONDENT'S EXCEPTIONS TO CONCLUSIONS OF LAW

    
    

11. Respondent excepts to the Hearing Officer's conclusion at paragraph 19 of the Recommended Order that the greater weight of "credible" evidence established that Respondent used her official position in order to obtain a loan from the Carrerous to benefit a man with whom she was intimately involved. Respondent argues initially that the conclusion that Respondent was motivated by any relationship to Mr. Keaton is not supported by the facts. Because Respondent attempts to reargue the facts as found by the Hearing Officer in paragraph 15 of her Findings of Fact, which we already have determined to be supported by competent substantial evidence of record and from which permissible inferences were derived by the Hearing Officer, Respondent's exception is rejected.

    
    

    Next, Respondent argues that there is no basis to believe that Respondent had any corrupt intent. Here, Respondent confuses the terminology of Section 112.313(6), Florida Statutes. An element of a Section 112.313(6), Florida Statutes, violation is that the public officer or employee "corruptly" used or attempted to use her official position. "Corruptly" is defined at Section 112.312(9), Florida Statutes, to mean

    
    

    done with a wrongful intent and for the pur- pose of obtaining, or compensating or re- ceiving compensation for, any benefit result- ing from some act or omission of a public ser- vant which is inconsistent with the proper performance of his public duties.

    
    

    We find that the Hearing Officer correctly concluded that the "wrongful intent" required for Respondent to have acted "corruptly" is determined from "the circumstances surrounding [Respondent's] relationship with Keaton and the Carrerous' relationship with the Housing Authority." Therefore, Respondent's exception is rejected.

    
    

    Respondent also argues that Respondent received no personal gain. However, for a violation of Section 112.313(6), Florida Statutes, to exist, the Respondent would have to corruptly use or attempt to use her official position or any property or resource which may be within her trust, or perform her official duties, to secure a special privilege, benefit, or exemption for herself others. Inasmuch as the Hearing Officer concluded that Respondent used her official position to secure a loan for the benefit of Mr. Keaton, "a man with whom she was intimately involved," we find that the Hearing Officer correctly concluded that the element of Respondent's actions having been done to secure a special privilege, benefit, or exemption for herself or others was proved. Respondent's exception, therefore, is rejected.

    
    

    Respondent argues further that the definition of "corruptly" does not disallow helping others. She argues that the Hearing Officer's conclusion does not find Respondent's acts to have been "inconsistent with the proper

    performance" of her public duties. This exception also is rejected. Contrary to Respondent's assertion is the Hearing Officer's finding in paragraph 15 of her Findings of Fact that the referral of Timothy Keaton for a loan to a landlord in a housing authority program was not within the scope of the appropriate function of the Housing Authority staff to refer tenants and other members of the public to other social service agencies or resources. In light of this finding, we conclude that Respondent's arranging a loan for Mr. Keaton from Mr. Carrerou was inconsistent with the proper performance of her public duties. Therefore, inasmuch as the Hearing Officer found that Respondent acted with wrongful intent to obtain a benefit (the loan from Mr. Carrerou for Mr. Keaton) and that her actions were inconsistent with the proper performance of her public duties, we conclude that Respondent acted "corruptly" within the meaning of Section 112.312(9), Florida Statutes, and that the Hearing Officer correctly concluded that the Respondent violated Section 112.313(6), Florida Statutes.

    
    

    Respondent's remaining exceptions to this conclusion also are rejected because they are attempts to reargue facts and inferences derived from those facts which we have found to have been supported by competent substantial evidence of record.

    
    

12. Respondent excepts to paragraph 21 of the Hearing Officer's conclusion that under Section 112.317, Florida Statutes, the suggested penalty of restitution and a $5,000 fine are appropriate. Respondent argues that the penalty is out of proportion to any offense that may have been proved. She also argues that requiring her to pay "restitution" when the debt has been paid by judgment is unconscionable. She argues that Mr. Carrerou elected his remedy by suing on the note.

We disagree. See paragraph 8 above. Respondent's exception therefore is rejected.

FINDINGS OF FACT

Upon review of the record before us, we conclude that the findings of the Hearing Officer are based upon competent substantial evidence and that the DOAH proceedings complied with the essential requirements of law. Therefore, the Findings of Fact set forth in the Recommended Order are approved, adopted, and incorporated herein by reference.

CONCLUSIONS OF LAW

The conclusions of law, except as modified in paragraph 11 above to add the conclusion that Respondent's actions were inconsistent with the proper performance of her public duties, are approved, adopted, and incorporated herein by reference.

Accordingly, the Commission on Ethics finds that the Respondent violated Section 112.313(6), Florida Statutes.

RECOMMENDED PENALTY

The Hearing Officer recommended that Respondent be required to pay a penalty of $1,200 restitution and a civil penalty of $5,000, for a total of

$6,200. We find her recommendation to be appropriate.

Having found that the Respondent, Jan Partin, as Administrative Assistant to the Winter Haven Housing Authority's Executive Director, violated Section 112.313(6), Florida Statutes, it is the recommendation of the Commission on Ethics that a penalty of restitution of $1,200 and a civil penalty of $5,000 be imposed upon the Respondent, for a total of $6,200.

ORDERED by the State of Florida Commission on Ethics meeting in public session on March 10, 1994.

March 15, 1994 Date Rendered

Joel K. Gustafson Chairman

THIS ORDER CONSTITUTES FINAL AGENCY ACTION. ANY PARTY WHO IS ADVERSELY AFFECTED BY THIS ORDER HAS THE RIGHT TO SEEK JUDICIAL REVIEW UNDER SECTION 120.68, FLORIDA STATUTES, BY FILING A NOTICE OF ADMINISTRATIVE APPEAL PURSUANT TO RULE 9.110, FLORIDA RULES OF APPELLATE PROCEDURE, WITH THE CLERK OF THE COMMISSION ON ETHICS, 2822 REMINGTON GREEN CIRCLE, SUITE 101, P.O. DRAWER 15709, TALLAHASSEE, FLORIDA 32317-5709; AND BY FILING A COPY OF THE NOTICE OF APPEAL ACCOMPANIED BY APPROPRIATE FILING FEES WITH THE APPROPRIATE DISTRICT COURT OF APPEAL. THE NOTICE OF ADMINISTRATIVE APPEAL MUST BE FILED WITHIN 30 DAYS OF THE DATE THIS ORDER IS RENDERED.

cc: Mr. Robert H. Grizzard, II, Attorney for Respondent Ms. Claire Dryfuss, Acting Commission Advocate

Mr. and Mrs. Oswald Carrerou, Complainants Honorable Mary Clark, Hearing Officer, Division of

Administrative Hearings

Docket for Case No: 92-007318EC

Orders for Case No: 92-007318EC