STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

In Re: WILLIAM "BILL" HARRISON CASE NO. 94-1787EC

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RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Susan B. Kirkland, held a formal hearing in this case on November 7, 1994, in Crestview, Florida.

APPEARANCES

For Advocate: Marty E. Moore

Assistant Attorney General PL-01, The Capitol

Tallahassee, Florida 32399-1050

For Respondent: John C. Cooper, Esquire

Cooper, Coppins & Monroe, P.A. Post Office Drawer 14447

3303 Thomasville Road

Tallahassee, Florida 32317-4447 STATEMENT OF THE ISSUES

Whether Respondent violated Section 112.313(6), Florida Statutes, and if so, what penalty is appropriate.

PRELIMINARY STATEMENT

On December 7, 1993, the Florida Commission on Ethics (Commission) entered an Order Finding Probable Cause to believe that Respondent, William "Bill" Harrison (Harrison), as a member of the City Council of the City of Laurel Hill, Florida, violated Section 112.313(6), Florida Statutes, by obtaining or receiving reimbursement from the City of Laurel Hill (City) for allegedly traveling to the Florida Department of Law Enforcement in Pensacola to report threatening phone calls, and by obtaining or receiving reimbursement from the City for three trips to the Okaloosa County Supervisor of Elections office to file campaign documents. On April 6, 1994, this case was forwarded to the Division of Administrative Hearings for assignment to a Hearing Officer.

The final hearing was originally scheduled for September 2, 1994 and was rescheduled for November 7, 1994. At the final hearing the Advocate called three witnesses: Shirley Simmons, Patricia Hollarn, and Larry Hill. The Advocate Exhibits A1-A18 were admitted in evidence. Respondent testified in his own behalf and called James Dunn as a witness. Respondent Exhibits 1-3 were admitted in evidence.

The parties stipulated to the facts set forth in Section E of the Joint Prehearing Stipulation and stipulated that at all times material to this proceeding, Respondent was subject to Part III, Chapter 112, Florida Statutes, the Code of Ethics for Public Officers and Employees.

A transcript was not ordered. The parties agreed to file proposed recommended orders on or before November 17, 1994. The parties timely filed their proposed recommended orders. The parties' proposed findings of fact are addressed in the Appendix of this Recommended Order.

FINDINGS OF FACT

1. Respondent, William "Bill" Harrison (Harrison) served as a member of the City of Laurel Hill City Council (Council) from July 1989 to April 1992. The population of Laurel Hill (City) is approximately 600 people.

   
   

2. At the present time, Harrison is an Okaloosa County Commissioner.

   
   

3. Harrison's take-home pay as a member of the Council was less than $25 monthly.

   
   

4. At the July 6, 1989, meeting of the Council--Harrison's first Council meeting as an elected member of the Council--Harrison moved, and the Council voted, that the City reimburse Council members who used their personal vehicles for City business at the rate of 22.5 cents per mile. The Council had previously authorized the reimbursement for mileage for Council members using their personal vehicles.

   
   

5. There was no requirement to receive advance permission from the Council before a member took a trip on official business. There was no written policy for handling mileage reimbursements. In practice, the party seeking reimbursement submitted a written request, which would be circulated at the next Council meeting for approval.

   
   

6. In late 1989 or early 1990, Harrison became Chairman of the Council. He was also the City's representative to the Okaloosa County League of Cities (League of Cities) and was the President of the Laurel Hill Volunteer Fire Department which was under the supervision of the Council. As a result of his duties as a member of the Council, representative to the League of Cities, and president of the volunteer fire department, Harrison was required to travel.

   
   

7. In September and October, 1989, the Council engaged in a series of discussions concerning reestablishing a police department. This was a controversial issue and was the source of considerable debate and confrontation in the community.

   
   

8. Harrison submitted an expense reimbursement request for a trip on February 28, 1990, to the Florida Department of Law Enforcement office in Pensacola, Florida. His reimbursement request was for $35.32, which represented

   157 miles at 22.5 cents per mile.

   
   

9. The council approved the request for reimbursement, and Harrison received a check for $35.32.

   
   

10. An ethics complaint was filed against Harrison, alleging violations of Section 112.313(6), Florida Statutes, in connection with his travel reimbursement from the City. The Florida Commission on Ethics sent Investigator Larry Hill to interview Harrison concerning the alleged violations.

11. When Investigator Hill questioned Harrison about the trip to FDLE in Pensacola, Harrison indicated that he had gone to the FDLE office and talked to someone there.

    
    

    Hill: You just went down and talked to someone at FDLE, there at the office, the big office down there?

    Harrison: Yes. Yes, exactly right, we talked.

    
    

12. When Investigator Hill asked Harrison why he went to the FDLE office, Harrison stated that he had received anonymous, threatening telephone calls relating to a complaint that he had filed against his predecessor on the Okaloosa County Commission, Ferrin Campbell.

    
    

13. Investigator Hill made further investigations and learned that Harrison never went to the FDLE office and that Harrison filed his complaint against Mr. Ferrin almost a year after Harrison's alleged trip to the FDLE office. Investigator Hill issued his Report of Investigation on August 9, 1993, including these findings. Harrison was sent a copy of the Report of Investigation.

    
    

14. By letter dated August 17, 1993, Harrison notified the Commission on Ethics that he had intended to go to the FDLE office but changed his mind and went to the University of West Florida Resource Library. However, he put on his expense report that the trip was to FDLE because he wanted people in the community to know that he had been in contact with the FDLE. Harrison did not clearly explain in his letter what he was doing at the library.

    
    

15. At the final hearing, Harrison stated that he went to the library to research the reestablishing of the police department in Laurel Hill, and that he made a telephone call to FDLE while at the library. He stated that he had originally intended to go to FDLE because he had received threats concerning the police department issue.

    
    

16. Having observed the demeanor of Harrison and having judged Harrison's credibility, I find that his testimony concerning doing research at the University of West Florida Resource Library not to be credible.

    
    

17. On May 2, 1991, Harrison submitted an expense reimbursement request to the City, which included a request for mileage of 32 miles for a trip to the Supervisor of Elections office in Crestview on April 19, 1991, and for mileage of 31 miles for a trip to the Supervisor of Elections office in Crestview on April 25, 1991. The Council approved his request and reimbursed him for the mileage at 20 cents per mile.

    
    

18. On June 6, 1991, Harrison submitted a voucher for reimbursement of traveling expenses to the City, which included a request for mileage reimbursement of 31 miles for a trip to the Supervisor of Elections office on May 3, 1991. The Council approved his request and reimbursed him for the mileage at 20 cents per mile.

    
    

19. His total reimbursement for the three trips to the Supervisor of Elections office was $18.80.

    
    

20. On April 19, 1991 Harrison went to the Supervisor of Elections office and filed a Statement of Financial Interests 1990, an acknowledgement that he

    received a notice of the preelection test of the voting equipment, a receipt for a copy of Chapter 106, and an Appointment of Campaign Treasurer.

    
    

21. On April 25, 1991, Harrison went to the Supervisor of Elections office and filed a Statement of Candidate.

    
    

22. On May 3, 1991, Harrison went to the Supervisor of Elections office and filed a Campaign Treasurer's Report.

    
    

23. The documents which he filed on April 19, April 25, and May 3 related to his campaign for reelection to the Council.

    
    

24. When Investigator Hill interviewed Harrison about the trips to the Supervisor of Elections Office, Harrison told him that he did not have any documentation of the purpose of the trips. When asked about the filing of the campaign documents, Harrison stated that the reason for the trips was not entirely related to the filing of the documents. He indicated that he may have discussed the Sunshine Law with someone at the Supervisor of Elections office.

    
    

25. Harrison did acknowledge that he filed the campaign documents at the Supervisor of Elections office on the dates at issue but he can not specifically recall what else he did there. He speculates that he may have discussed the Data Vote machine and the uniform election day issue with someone at the Supervisor of Elections office on those dates but he is not sure. He also thinks that he may have visited the Director of the County Emergency Medical Service on May 3, in response to a request by the Council made at the Council meeting on May 2, but he had no documentation of such a visit. Having judged the credibility of Harrison, I find that his trips to Crestview on April 19, 25 and May 3, 1991 were for the sole purpose of filing his campaign documents.

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

27. The burden of proof, absent a statutory directive to the contrary, is on the party asserting the affirmative of the issue of the proceedings. 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

    349 (Fla. 1st DCA 1977). In this proceeding, it is the Commission, through its Advocate, that is asserting the affirmative: that the Respondent twice violated Section 112.313(6), Florida Statutes. Therefore, the burden of establishing by a preponderance of the evidence the elements of the Respondent's violation is on the Commission.

    
    

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

    
    

    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.

    
    

29. The term "corruptly" is defined by Section 112.312(9), Florida Statutes, to mean:

    
    

    [D]one with a wrongful intent and for the purpose of obtaining, or compensating or receiving compen- sation for, any benefit resulting from some act or omission of a public servant which is inconsistent with the proper performance of his public duties.

    
    

30. In order for it to be concluded that Respondent violated Section 112.313(6), Florida Statutes, the Advocate must establish the following elements:

    
    

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

    2. The Respondent must have:

       1. used or attempted to use his official position or any property or resources within his trust, or

       2. performed his official duties.

    3. The Respondent must have acted to secure a special privilege, benefit, or exemption for himself or others.

    4. In so doing, the Respondent must have acted corruptly, that is, with wrongful intent and for the purpose of benefiting himself or another person from some act or omission which was inconsistent with proper performance of his public duties.

       
       

31. The parties have stipulated that Harrison, as an elected member of the Council, was subject to the requirements of Part III, Chapter 112, Florida Statutes.

    
    

32. The Advocate has established by a preponderance of the evidence that Harrison violated Section 112.313(6), Florida Statutes, when he submitted and received reimbursement for the alleged trip to FDLE in Pensacola. Harrison used his position as a Council member to secure reimbursement for travel expenses which he did not incur in the performance of his duties as a Council member.

    
    

33. Harrison knew that he did not go the FDLE office, but stated on his expense submittal that he had gone to FDLE so that the community would think that he had. He lied to Investigator Hill under oath when he indicated that he had gone to the FDLE office. He told Investigator Hill that he went to FDLE because he had received threats in connection with a complaint he had filed against Mr. Ferrin. When Investigator Hill could not confirm Harrison's explanation for the trip, Harrison changed his story, saying that he went to the library and that he had intended to go to FDLE because of threats he received in connection with the police department issue. However, based on the minutes of the Council meetings the heated discussions that took place concerning the police department occurred in September and October, 1989. Its difficult to see why Harrison would have received threats in early 1990 when the controversy had occurred three or four months prior to that or if he did receive threats in 1989 why he waited so long before he decided to contact the FDLE. Based on the

    totality of these factors, I conclude that Harrison did corruptly use his position as a member of the City Council to get reimbursement for travel expenses which he did not incur.

    
    

34. The Advocate has established by a preponderance of the evidence that Harrison violated Section 112.313(6), Florida Statutes, when he requested and received reimbursement for travel expenses in connection with his trips to the Supervisor of Elections Office on April 19 and 25 and May 3, 1991. Harrison did go to the Supervisor of Elections office on those dates for the purpose of filing campaign documents related to his bid for reelection to the Council which purpose he knew would not qualify as a public purpose for travel reimbursement.

    
    

35. Travel for the purpose of filing campaign documents is not an expense for which Harrison could receive reimbursement pursuant to Section 112.061, Florida Statutes. Such expenses were incurred for his personal benefit and were not incurred in the "performance of a public purpose authorized by law to be performed by the agency." Section 112.061(3)(b), Florida Statutes. Harrison conceded at the final hearing that filing campaign documents is not a public purpose.

    
    

36. There is no direct evidence to establish that Harrison went to Crestview on the dates in question to do anything but file the campaign documents. Harrison testified that he may have gone to Crestview for other purposes which would qualify for travel reimbursement as a public purpose, but he is not sure what he did on those dates other than file the campaign documents. Having judged Harrison's credibility, it is concluded that Harrison did not make the trips to Crestview for a public purpose.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order and Public Report be entered finding that

William "Bill" Harrison violated Section 112.313(6), Florida Statutes, imposing

a civil penalty of $1,000 per allegation for a total of $2,000; requiring restitution of $52.12, and issuing a public censure and reprimand.

DONE AND ENTERED this 7th day of December, 1994, in Tallahassee, Leon County, Florida.

SUSAN B. KIRKLAND

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 7th day of December, 1994.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-1787EC

To comply with the requirements of Section 120.59(2), Florida Statutes (1993), the following rulings are made on the parties' proposed findings of fact:

Advocate's Proposed Findings of Fact.

1. Paragraphs 1-3: Accepted.

Findings of Fact Based on Evidence At Hearing.

1. Paragraphs 1-4: Accepted in substance.

2. Paragraph 5: The last sentence is rejected as constituting argument. The remainder is accepted in substance.

3. Paragraph 6: Accepted in substance that Harrison's explanation of his trip to Pensacola is not credible. The remainder of the paragraph is rejected as constituting argument.

4. Paragraphs 7-8: Accepted in substance.

5. Paragraph 9: Accepted in substance to the extent that Harrison maintained that he could have been in Crestview on City business but he does not remember exactly what it was and speculates on what it may have been. The remainder of the paragraph is rejected as constituting argument.

6. Paragraph 10: Rejected as constituting argument.

7. Paragraph 11: Accepted in substance.

Respondent's Proposed Findings of Fact Stipulated Facts

1. Paragraphs 1-3: Accepted.

Facts Based on the Record

1. Paragraph 1: Accepted in substance.

2. Paragraphs 2-4: Rejected as subordinate to the facts actually found.

3. Paragraphs 5-8: Accepted in substance.

4. Paragraphs 9-14: Rejected as subordinate to the facts actually found.

5. Paragraph 15: The first sentence is accepted in substance as to 1989 but not as to early 1990 based on the minutes of the Council meetings. The second sentence is accepted in substance.

6. Paragraph 16: Accepted in substance that Harrison received threats concerning the police department issue but rejected to the extent that these threats were received in early 1990. The minutes of the meetings show that the police issue was discussed in the fall of 1989.

7. Paragraph 17: Having judged the credibility of Harrison, the paragraph is rejected .

8. Paragraph 18: Accepted in substance to the extent that

   Harrison told Mr. Dunn that he had received threats and that he had done some research at the library on police issues, but rejected to the extent that it implies that Dunn's testimony confirms that Harrison went to Pensacola to the library on February 28, 1990, to do research and that Harrison was going to the FDLE office because he had recently received threats.

9. Paragraph 19: The first sentence is accepted in substance. The remainder is rejected as subordinate to the facts actually found.

10. Paragraph 20: Rejected as constituting argument.

11. Paragraph 21: The portion of the first sentence that Harrison did not go to FDLE is accepted in substance. The portion of the first sentence that Harrison did research is rejected as not credible. The remainder of the paragraph is rejected as constituting a conclusion of law.

12. Paragraph 22: Rejected as constituting argument.

13. Paragraph 23: The first and second sentences are accepted in substance. The remainder of the paragraph is rejected as constituting argument.

14. Paragraphs 24-26: Rejected as subordinate to the facts actually found.

15. Paragraphs 27-29: Rejected as constituting argument.

COPIES FURNISHED:

Carrie Stillman Complaint Coordinator Commission on Ethics Post Office Box 15709

Tallahassee, Florida 32317-5709

Marty E. Moore, Esquire Advocate for the Commission

on Ethics

The Capitol, PL-01

Tallahassee, Florida 32399-1050

John C. Cooper, Esquire COOPER, COPPINS & MONROE, P.A.

Post Office Drawer 14447 Tallahassee, Florida 32317-4447

Bonnie Williams Executive Director

Florida Commission On Ethics Post Office Drawer 15709 Tallahassee, Florida 32317-5709

Phil Claypool, Esquire General Counsel

Ethics Commission

2822 Remington Green Circle, Suite 101 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 ten 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: 94-001787EC

Orders for Case No: 94-001787EC