STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

In Re: PATTY LYNCH CASE NO. 94-2068EC

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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 June 2, 1994, in DeFuniak Springs, Florida.

APPEARANCES

For Advocate: Michael E. Ingram, Esquire

Steven Grigas, Esquire Assistant Attorney General 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, Patty Lynch, violated Section 112.313(6), Florida Statutes, and, if so, what penalty should be imposed.

PRELIMINARY STATEMENT

On January 28, 1993, the Florida Commission on Ethics (Commission) issued an Order Finding Probable Cause to believe that Respondent, Patty Lynch (Lynch), 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. On April 18, 1994, the case was referred to the Division of Administrative Hearings for assignment to a Hearing Officer.

At the final hearing, the Advocate called Pat Pollard, Pamela Dyess, Sylvia Burke, Rodney Ryals, Patty Lynch, and Sherry Sylvester as witnesses. Advocate's Exhibit 1 was admitted into evidence. Respondent testified on her behalf and presented the testimony of Jack Little, Sue Carter, Tammy Day and Teresa Gomillion.

No transcript was filed. The parties agreed to file proposed recommended orders on or before July 6, 1994. On July 1, 1994, the Advocate filed a Joint Motion for Extension 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 their proposed recommended orders. The parties' proposed findings of fact are addressed in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. After serving 32 years as Tax Collector for Walton County, Jack Little decided to retire in 1992.

   
   

2. There were several Democratic candidates and one Republican candidate who ran for Tax Collector. 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.

   
   

3. 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.

   
   

4. In November 1992, Sue Carter won the general election. Respondent, Patty Lynch (Lynch), was employed in the tax collector's office in 1992 as a title clerk. As title clerk, Lynch dealt with the public in issuing vehicle license renewals, registering titles for vehicles, and issuing handicap parking permits.

   
   

5. Pat Pollard, Teresa Gomillion, Tammy Day and Sylvia Rushing were also employed in the tax collector's office during the 1992 election campaign. Ms. Gomillion and Lynch 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 anyone for the office of Tax Collector.

   
   

6. Pat Pollard was a title clerk, and her work station was located about ten feet away from Lynch's work station. Before the first and second Democratic primaries, Ms. Pollard heard Lynch discuss politics with customers. Lynch would encourage nonregistered voters to register to vote and to vote for Carter. She saw Lynch hand out palm cards for Carter to customers during office hours. Palm cards are used by political candidates to advertise their candidacy. The cards are usually small and may feature a picture of the candidate and information concerning the qualifications of the candidate.

   
   

7. Pamela 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. Between the first and second primaries, Ms. Dyess went to the tax collector's office 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 in the conversation. Later Lynch joined in the conversation and told Ms. Dyess that she needed to vote for Carter. Ms. Dyess was upset by Ms. Gomillion's and Lynch's comments and felt that they were telling her how to cast her vote.

   
   

8. Sylvia Burke, a lifelong resident of DeFuniak Springs, supported Sue Rushing in the race for tax collector. During the runoff, Ms. Burke went to the tax collector's office to renew her car tag. She teased Lynch saying that she was going to politick for Ms. Rushing. Her remark set off an argument between Lynch and Ms. Burke on the candidates for tax collector.

   
   

9. Rodney Ryals has been an employee for the City of DeFuniak Springs for the last ten years. During 1992, Mr. Ryals spent a great deal of time at the tax collectors's office taking care of city business and visiting with his friend Ms. Pollard. While at the tax collector's office, Ryals saw Lynch hand out campaign cards for Carter depicting Carter's picture and listing Carter's

   qualifications. Lynch tried to give Mr. Ryals campaign literature. Mr. Ryals did not support Carter in the tax collector's race.

   
   

10. During Ryals' visits to the tax collector's office, Lynch would tell him, "You better vote for Sue Carter, she's the only qualified candidate." Mr. Ryals advised Lynch that she should not politick on the job and she responded that she had to politick on the job because she might lose her job if anyone else got elected.

    
    

11. Sherry Sylvester sold merchandise for House of Lloyd as a side line. She would get persons to hostess demonstration parties or silent parties. The customers would place orders with the hostess of the party, who in turn would transmit the orders to Ms. Sylvester and receive free merchandise for being a hostess. Lynch had given several House of Lloyd parties for Ms. Sylvester. Either before or after the first primary, Ms. Sylvester went to the tax collector's office to see Lynch concerning House of Lloyd business. While Ms. Sylvester was at the tax collector's office, Lynch, aware that Ms. Sylvester supported Ms. Rushing, tried to get Ms. Sylvester to switch to supporting Carter. Lynch tried to give Ms. Sylvester one of Carter's palm cards.

    
    

12. Mr. Little had advised his employees that they should not politick during office hours. Ms. Carter had also warned Lynch about campaigning in the office.

    
    

    CONCLUSIONS OF LAW

    
    

13. 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").

    
    

14. 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 Lynch violated Section 112.313(6), Florida Statutes. Therefore, the burden of establishing the elements of Lynch's alleged violation is on the Commission.

    
    

15. 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.

16. 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.

    
    

17. 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.

          
          

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

    
    

19. The Advocate has established by a preponderance of the evidence that Lynch performed her duties as a title clerk with the Walton County Tax Collector's Office to secure a special benefit for herself and for Sue Carter, Ms. Lynch's preferred candidate in the tax collector political race. Ms. Lynch passed out Ms. Carter's palm cards to customers of the tax collector's office while she was on duty in the tax collector's office and told customers that they should vote for Sue Carter. The special benefit which Lynch sought was votes for her preferred candidate to secure the election of Ms. Carter and thereby securing Lynch's continued employment with the tax collector's office.

    
    

20. The Advocate has established that Lynch's actions were done with a wrongful intent. Lynch had been advised by Mr. Little and Ms. Carter that she should not politick on the job. When Mr. Ryals was confronted with Lynch's handing out palm cards and telling customers to vote for Ms. Carter, he advised her that her actions were illegal. Lynch continued her actions because she thought that if Ms. Carter were not elected tax collector that her job as title clerk could be in jeopardy.

    
    

21. The Advocate has established that Lynch's actions were done to influence another person's votes and as such was inconsistent with her duties as title clerk for the Walton County Tax Collector's Office.

22. 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 influenc- ing another person's vote or affecting the result thereof.

    
    

23. In AGO 072-62, March 7, 1972, the Attorney General opined that Section

    104.31 does not prohibit passive political expressions during working hours. In the instant case, Lynch's actions went beyond passive political expressions. Lynch's official duties did not include handing out palm cards for her candidate nor did it include telling the customers of the tax collector's office for whom they should vote. These actions were expressly prohibited by Mr. Little, the tax collector, and went much further than having a bumper sticker on one's car or wearing a lapel button.

    
    

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

    
    

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

    
    

    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.

       
       

26. It is my recommendation that Patty Lynch 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

Patty Lynch violated Section 112.313(6) 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. 94-2068EC

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. (Revised Proposed Recommended Order)

1. Paragraphs 1-5: Accepted in substance.

2. Paragraph 6: The first sentence is accepted in substance. The second sentence is accepted except as to the distance between Ms. Pollard's work station and Ms. Lynch's work station. The greater weight of the evidence demonstrated that the work stations were located about ten feet apart.

3. Paragraph 7: Accepted in substance.

4. Paragraphs 8-11: Rejected to the extent that they are not findings of fact but rather recitation of testimony.

5. Paragraph 12: Accepted in substance. Ms. Pollard did not support any candidate for Walton County Tax Collector.

6. Paragraphs 13-16: Rejected to the extent that they are not findings of fact but rather recitation of testimony.

7. Paragraph 17: The second sentence is accepted in substance. The remainder of the paragraph is rejected to the extent that they are not findings of fact but rather recitation of testimony.

8. Paragraphs 18-19: Rejected to the extent that they are not findings of fact but rather recitation of testimony.

9. Paragraph 20: The first sentence is rejected as not constituting a finding of fact but rather recitation of testimony. The second sentence is rejected as constituting argument.

10. Paragraph 21: The first three sentences are accepted in substance. The remainder of the paragraph is rejected as constituting recitation of testimony.

11. Paragraph 22: Rejected as constituting recitation of testimony.

12. Paragraph 23: The first sentence is accepted in substance. The second sentence is rejected as constituting recitation of testimony.

13. Paragraph 24: Rejected as constituting recitation of testimony.

14. Paragraph 25: The first sentence is rejected as constituting argument. The second sentence is rejected as constituting recitation of testimony.

15. Paragraphs 26-33: Rejected as recitation of testimony.

16. Paragraph 34: Rejected as unnecessary.

17. Paragraphs 35-41: Rejected as recitation of testimony.

18. Paragraph 42: The first sentence is rejected as unnecessary. The last sentence is rejected as recitation of testimony.

Respondent's Proposed Findings of Fact

1. Paragraphs 1-3: Accepted in substance.

2. Paragraphs 4-7: Rejected as constituting recitation of testimony.

3. Paragraph 8: Rejected as constituting argument.

4. Paragraph 9: The first sentence is rejected as unnecessary. The remainder of the paragraph is rejected as subordinate to the facts actually found.

5. Paragraphs 10-14: Rejected as constituting recitation of testimony.

6. Paragraph 15: Rejected as constituting argument.

7. Paragraph 16: The first sentence is rejected as constituting recitation of testimony. The second sentence is rejected as constituting argument.

8. Paragraph 17: The first sentence is rejected as constituting recitation of testimony. The remainder of the paragraph is accepted in substance.

9. Paragraphs 18-20: Rejected as constituting recitation of testimony.

10. Paragraph 21: The first sentence is rejected as unnecessary. The remainder is rejected as constituting recitation of testimony.

11. Paragraphs 22-23: Rejected as constituting recitation of testimony.

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

13. Paragraphs 25-26: Rejected as constituting recitation of testimony.

14. Paragraph 27: Rejected as unnecessary.

15. Paragraphs 28-29: Rejected as recitation of testimony.

16. Paragraph 30: The first sentence is rejected as recitation of testimony. The second sentence is rejected as subordinate to the facts actually found.

17. Paragraph 31: The first sentence is rejected as unnecessary. The remainder of the sentence is rejected as constituting recitation of testimony.

18. Paragraph 32: The first sentence is rejected as subordinate to the facts actually found. The second sentence is accepted in substance.

19. Paragraph 33: The last sentence is rejected as constituting argument. The remainder of the paragraph is rejected as recitation of testimony.

20. Paragraph 34: The first sentence is rejected as unnecessary. The last sentence is rejected as constituting recitation of testimony.

21. Paragraph 35: The first part of the sentence is accepted in substance. The second part of the sentence is rejected as not supported by the greater weight of the evidence.

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

1. Allan Ramey, Esquire 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

   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.

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   AGENCY FINAL ORDER

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   BEFORE THE STATE OF FLORIDA COMMISSION ON ETHICS

   
   

   In re PATTY LYNCH, DOAH Case No. 94-2068EC

   Complaint No. 92-147

   Respondent. Final Order No. COE 94-44

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   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 26 (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, Patty Lynch, 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 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 13th, 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 Rainey, Attorney for Respondent

Mr. Michael E. Ingram, Special Commission Advocate Ms. Sherry Sylvester, Complainant

Ms. Patty Lynch, Respondent Division of Administrative Hearings

Docket for Case No: 94-002068EC

Orders for Case No: 94-002068EC