STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

In Re: TERESA GOMILLION CASE NO. 94-2067EC

/

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 June 3, 1994, in DeFuniak Springs, Florida.

APPEARANCES

For Advocate: Michael Ingram, Esquire

Steven Grigas, Esquire Assistant Attorney Generals

Department of Legal Affairs, PL-01 The Capitol

Tallahassee, Florida 32399

For Respondent: E. Allan Ramey, Esquire

13 Circle Drive Post Office Box 369

DeFuniak Springs, Florida 32433-0369 STATEMENT OF THE ISSUES

Whether Respondent, Teresa Gomillion, violated Section 112.313(6), Florida Statutes, and, if so, what penalty should be imposed.

PRELIMINARY STATEMENT

On February 2, 1993, the Florida Commission on Ethics (Commission) filed an Order Finding Probable Cause to believe that Respondent, Teresa Gomillion, as an employee of the Walton County Tax Collector's Office, violated Section 112.313(6), Florida Statutes, by soliciting votes for her preferred candidate for tax collector from the users of the tax collector's office. The case was forwarded to the Division of Administrative Hearings on April 18, 1994, for assignment to a hearing officer.

At the final hearing the Advocate called the following witnesses: Teresa Gomillion, Pam Dyess, Pat Pollard, Rodney Ryals, and James Engles. Advocate's Exhibit 1 was admitted in evidence. Respondent testified in her own behalf and called the following witnesses: Mike Stanley, Sue Carter, and Tammy Day. At the final hearing the parties agreed to file proposed recommended orders by July 6, 1994. On July 1, 1994, the Advocated filed a Joint Motion for Extenstion of Time to File Proposed Recommended Orders. The motion was granted and the time for filing proposed recommended orders was extended to July 13, 1994. The parties timely filed proposed recommended orders. The parties' proposed findings of fact are addressed in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. In the fall of 1992, there were several Democratic candidates for the office of Tax Collector for Walton County. Among the Democratic candidates was Sue Carter who had been employed in the Walton County Tax Collector's Office prior to resigning to run for tax collector.

   
   

2. The first Democratic primary was held in September, 1992, resulting in a runoff primary between Sue Carter and Sue Rushing in October, 1992. Ms. Carter defeated Ms. Rushing. In November, 1992, Sue Carter won the general election.

   
   

3. Respondent, Teresa Gomillion (Gomillion), was employed in the Walton County Tax Collector's Office in 1992. Pat Pollard, Tammy Day, Patty Lynch, and Sylvia Rushing were also employed in the tax collector's office during the 1992 election campaign. Ms. Lynch and Gomillion supported Ms. Carter. Ms. Day did not support Ms. Carter. Ms. Rushing was related to Sue Rushing, Ms. Carter's opponent. Ms. Pollard did not support any candidate for the office of tax collector.

   
   

4. Pat Pollard's work station was located about three feet away from Gomillion's work station. She overheard Gomillion ask a customer of the tax collector's office for whom he was going to vote. This was the only time that Ms. Pollard heard Gomillion talk to a customer concerning the race for tax collector.

   
   

5. Gomillion and other employees in the tax collector's office did discuss the race for tax collector during office hours.

   
   

6. Pam Dyess has been employed at a car dealership in DeFuniak Springs for

   16 years. During 1992, her job responsibilities required her to go to the tax collector's office to handle the tag and title work for the dealership. After the first primary, Ms. Dyess went to the tax collector's office during working hours and while she was there the subject of the first primary was discussed. Ms. Dyess stated that she had voted for Harley Henderson. Ms. Gomillion joined the conversation and asked Ms. Dyess why she had voted for Harley Henderson and made some disparaging remarks about Mr. Henderson's qualifications.

   
   

7. Rodney Ryals is now and was an employee of the City of DeFuniak Springs during the fall of 1992. During the election, Mr. Ryals spent a great deal of time at the tax collector's office taking care of city business and visiting with his friend Ms. Pollard. While Ryals was at the tax collector's office Gomillion told him, "You better vote for Sue Carter, she's the only qualified candidate."

   
   

8. Ryals had told Gomillion and Ms. Lynch that they should not campaign on the job because it was illegal. Both women told him that if they did not politick that they might lose their jobs.

   
   

9. Both Jack Little, the tax collector, and Ms. Carter had advised Gomillion not to politick in the tax collector's office.

   
   

10. Having judged the credibility and demeanor of the witnesses, I find that Gomillion did not hand out campaign literature while she was on the job at the tax collector's office.

    CONCLUSIONS OF LAW

    
    

11. 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").

    
    

12. The burden of proof, absent a statutory directive to the contrary, is on the party asserting the affirmative of the issue in the proceeding. Department of Transportation v. J.W.C. Co., Inc., 396 So.2d 778 (Fla. 1st DC 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 Gomillion violated Section 112.313(6), Florida Statutes. Therefore, the burden of establishing the elements of Gomillion's alleged violation is on the Commission.

    
    

13. Section 112.313(6), Florida Statutes, provides as follows:

    
    

    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.

    
    

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

    
    

    "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.

    
    

15. In order to establish a violation of Section 112.313(6), Florida Statutes, the following elements must be proved:

    
    

    1. The Respondent must be either a public officer or a public employee.

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

    3. The Respondent's actions in element two must have been done with an intent to secure a special privilege, benefit, or exemption for himself or others.

    4. The Respondent's action and intent in elements

       two and three must have been done corruptly, i.e.,

       1. done with a wrongful intent, and

       2. done for the purpose of benefiting from some act or omission which is inconsistent with the proper performance of public duties.

          
          

16. Section 104.31(1)(a), Florida Statutes, provides:

    
    

    1. No officer or employee of the state, or of any county or municipality thereof, except

       as hereinafter exempted from provisions hereof shall:

       1. Use his official authority or influence for the purpose of interfering with an election or a nomination of office or coercing or influencing

    another person's vote or affecting the result thereof.

    
    

17. The Advocate has established by a preponderance of the evidence that Gomillion, as an employee of the Walton County Tax Collector's Office, is a public employee subject to the Code of Ethics for Public Officers and Employees, Part III of Chapter 112, Florida Statutes.

    
    

18. The Advocate has established by a preponderance of the evidence that Gomillion performed her duties with the tax collectors office to secure a special benefit for herself and for Sue Carter, Gomillion's preferred candidate. While she was on duty in the tax collector's office Gomillion told Ryals that he had better vote for Ms. Carter because she was the only qualified candidate.

    She made remarks to a customer who was at the tax collector's office on business, disparaging the candidate for whom the customer had voted. She also asked a customer for whom he was going to vote for tax collector. The special benefit which Gomillion sought was votes for her preferred candidate to secure the election for Carter and thereby securing Gomillion's continued employment in the tax collector's office.

    
    

19. The Advocate has established that Gomillion's actions were done with a wrongful intent. She had been advised by Mr. Little and Ms. Carter not to politick on the job. Mr. Ryals had also informed Gomillion that he thought her actions were illegal and that she should refrain from politicking while on duty in the tax collector's office. Gomillion continued engaging in political discussions because she thought that if someone other than Ms. Carter were elected tax collector her job could be in jeopardy.

    
    

20. The Advocate has established by a preponderance of the evidence that Gomillion's actions were inconsistent with her duties as an employee of the tax collector's office. Mr. Little had expressly prohibited politicking in the tax collector's office. Her duties as an employee did not include asking customers for whom they were going to vote nor did it include telling customers to vote for Ms. Carter because she was the best candidate. Ms. Gomillion's actions were not passive political expressions which were exempted from the prohibitions set forth in Section 104.31(1)(a), Florida Statutes. See AGO 072-62, March 1, 1972.

    
    

21. The Advocate has established by a preponderance of the evidence that Gomillion violated Section 112.313(6), Florida Statutes.

    
    

22. Section 112.317(1)(b), Florida Statutes, sets forth the following penalties which may be imposed for a violation by an employee of the Code of Ethics for Public Officers and Employers:

    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 to exceed $5,000.

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

    8. Public censure and reprimand.

       
       

23. It is my recommendation that Teresa Gomillion receive a civil penalty of $500 and be publicly censured and reprimanded.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Commission on Ethics enter a final order finding that

Teresa Gomillion violated Section 112.313(6), Florida Statutes, and recommending a civil penalty of $500 and a public censure and reprimand.

DONE AND ENTERED this 19th day of August, 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 19th day of August, 1994.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-2067EC

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 1-10: Accepted in substance.

2. Paragraph 11: Accepted to the extent that Ms. Gomillion had solicited Mr. Ryals' vote but rejected as far as Mr. Ryals observing Ms. Gomillion soliciting other customers.

3. Paragraph 12: Having judged the credibility of the witnesses, I find that Mr. Ryals testimony that Ms. Gomillion handed out campaign literature not to be credible.

4. Paragraph 13: Accepted in substance.

5. Paragraph 14: Rejected as constituting recitation of testimony.

6. Paragraphs 15-16: Rejected as subordinate to the facts actually found.

Respondent's Proposed Findings of Fact.

1. Paragraphs 1-2: Accepted in substance.

2. Paragraph 3: The first sentence is rejected as unnecessary. The remainder of the paragraph is rejected as constituting recitation of testimony.

3. Paragraph 4: The first sentence is accepted in substance. The second sentence is rejected as constituting both recitation of testimony and argument.

4. Paragraph 5: The first sentence is accepted in substance. The remainder of the paragraph is rejected to the extent that it implies that Ms. Gomillion properly performed her duties. The greater weight of the evidence shows that Ms. Gomillion's actions were prohibited by the tax collector and were not part of her duties.

5. Paragraphs 6-8: Rejected as constituting recitation of testimony.

6. Paragraph 9: The first sentence is accepted in substance except as it relates to Ms. Gomillion's solicitation of Mr. Ryals. The remainder of the paragraph is rejected as unnecessary.

7. Paragraph 10: Rejected as unnecessary.

8. Paragraphs 11-12: Rejected as recitation of testimony.

9. Paragraph 13: The first sentence is rejected as unnecessary. The remainder of the paragraph is rejected as constituting recitation of testimony.

10. Paragraph 14: Rejected as subordinate to the facts actually found.

11. Paragraphs 15-16: Rejected as constituting recitation of testimony.

12. Paragraph 17: Rejected as unnecessary.

13. Paragraphs 18-19: Rejected as constituting recitation of testimony.

14. Paragraph 20: The first sentence is rejected as unnecessary. The remainder of the paragraph is rejected as constituting recitation of testimony.

15. Paragraphs 21-22: Rejected as constituting recitation of testimony.

16. Paragraph 23: The first sentence is rejected as constituting recitation of testimony. The remainder of the paragraph is rejected as subordinate to the facts actually found.

17. Paragraph 24: The first sentence is rejected as unnecessary. The remainder of the paragraph is rejected as constituting recitation of testimony.

18. Paragraph 25: The first sentence is rejected as

constituting recitation of testimony. The remainder of the paragraph is accepted in substance.

COPIES FURNISHED:

Carrie Stillman Complaint Coordinator Commission on Ethics Post Office Box 15709

Tallahassee, Florida 32317-5709

Michael E. Ingram Assistant Attorney General

Department of Legal Affairs, PL-01 The Capitol

Tallahassee, Florida 32399

E. Allan Ramey, Esquire

13 Circle Drive Post Office Box 369

Defuniak Springs, Florida 32433-0369

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.

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

AGENCY FINAL ORDER

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

BEFORE THE STATE OF FLORIDA COMMISSION ON ETHICS

In re TERESA GOMILLION, DOAH Case No. 94-2067EC

Complaint No. 92-146

Respondent. Final Order No. 94-43

/

FINAL ORDER AND PUBLIC REPORT

This matter came before the Commission on Ethics on the Recommended Order rendered in this matter on August 19, 1994 by the Division of Administrative Hearings (DOAH) [a copy of which is attached and incorporated by reference].

The Hearing Officer recommends that the Commission enter a final order and public report finding that the Respondent violated Section 112.313(6), Florida Statutes, recommending that a civil penalty of $500 be imposed upon the Respondent, and recommending that the Respondent be publicly censured and reprimanded.

Neither the Respondent nor the Advocate filed exceptions to the Recommended Order. The complete record of this matter under Section 120.57(1)(b)6, Florida Statutes, was not placed before the Commission. Both the Respondent and the Advocate, pursuant to notice, appeared at the Commission's final consideration of this matter and both made argument concerning the Commission's penalty recommendation.

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.

Having reviewed the Recommended Order and having considered the arguments of the Respondent and the Advocate made before the Commission at its final

consideration of this matter, the Commission makes the following findings, conclusions, rulings, and recommendations:

FINDINGS OF FACT

The Findings of Fact set forth in the Recommended Order are approved, adopted, and incorporated herein by reference.

CONCLUSIONS OF LAW

1. The Conclusions of Law set forth in the Recommended Order are approved, adopted, and incorporated herein by reference, except for conclusion of law 23 (essentially a penalty recommendation), which is modified as herein specified in the penalty section of this Final Order and Public Report.

   
   

2. The Commission finds that the Respondent, Teresa Gomillion, as an employee of the Walton County Tax Collector's Office, violated Section 112.313(6), Florida Statutes, by soliciting votes for her preferred candidate for Walton County Tax Collector from users of the Tax Collector's Office.

RECOMMENDED PENALTY

Pursuant to Sections 112.317 and 112.324, Florida Statutes, the Commission on Ethics hereby recommends that a civil penalty of $100.00 (one hundred dollars) be imposed upon the Respondent and that she be publicly censured and reprimanded. The civil penalty is reduced from the amount recommended by the Hearing Officer because the Respondent's statements to the Commission at its final consideration of this matter indicate that the Respondent is no longer employed by the Tax Collector's Office and that the Respondent has already been "penalized" in a monetary manner through her expenditure of legal fees in defense of this ethics matter.

ORDERED by the State of Florida Commission on Ethics meeting in public session on Thursday, October 13, 1994.

October 18, 1994. Date Rendered

R. Terry Rigsby 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, TALLAHASSEE, FLORIDA 32308; OR

P. O. DRAWER 15709, TALLAHASSEE, FLORIDA 32317-5709; AND BY FILING A COPY OF THE NOTICE OF APPEAL ACCOMPANIED BY THE APPLICABLE 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.

COPIES FURNISHED:

Mr. E. Allan Ramey, Attorney for Respondent

Mr. Michael E. Ingram, Special Commission Advocate Mr. James C. Rushing, Complainant

Ms. Teresa Gomillion, Respondent Division of Administrative Hearings

Docket for Case No: 94-002067EC

Orders for Case No: 94-002067EC