STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
In Re: ROBERT M. JOHNSON ) CASE NO. 94-2390EC
)
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 January 26, 1995, in Sarasota, Florida.
APPEARANCES
For Advocate: John E. Griffin, Esquire
Special Advocate for the Commission 3840 North Monroe Street, Suite 304
Tallahassee, Florida 32303
For Respondent: Mark Herron, Esquire
Post Office Box 10555 Tallahassee, Florida 32302
STATEMENT OF THE ISSUES
Whether Respondent violated Section 112.313(6), Florida Statutes.
PRELIMINARY STATEMENT
On June 16, 1993, the Florida Commission on Ethics (Commission) issued an Order Finding Probable Cause to believe that Respondent, Robert M. Johnson (Johnson), violated Article II, Section 8(e), Florida Constitution and Section 112.313(9)(a)3, Florida Statutes, and that Johnson violated Section 112.313(6), Florida Statutes, by submitting fraudulent travel claims for reimbursement. On April 29, 1994, the case was forwarded to the Division of Administrative Hearings for assignment to a hearing officer.
The case was scheduled for final hearing on August 3, 1994. On July 26, 1994, the Special Advocate filed a Motion for Continuance which was granted. The case was rescheduled for final hearing on January 26, 1995. On September 14, 1994, the Special Advocate filed a Motion for Temporary Relinquishment of Jurisdiction. The motion was granted. On October 13, 1994, the Commission granted Respondent's Motion to Dismiss that portion of the probable cause order relating to a violation of Article II, Section 8(e), Florida Constitution and
Section 112.313(9)(a)3, Florida Statutes. The issue remaining for final hearing was whether Johnson violated Section 112.313(6), Florida Statutes.
At the final hearing the Special Advocate called Martha Hetrick and Donna Peacock as witnesses. The Special Advocate's Exhibit Nos. 1-5 were admitted into evidence. Johnson testified on his own behalf and called Linda Sue Mineer and Gary Wells as witnesses. Johnson's Exhibit No. 1 was admitted in evidence. The parties stipulated to the facts contained in Section V of the Prehearing Stipulation submitted by the parties.
The parties agreed to file proposed recommended orders within ten days of the filing of the transcript. The transcript was filed on February 14, 1995. Respondent filed a proposed recommended order on March 1, 1995. The Special Advocate did not file a proposed recommended order. Respondent's findings of fact are addressed in the appendix to this Recommended Order.
FINDINGS OF FACT
Respondent, Robert M. Johnson (Johnson) served as Florida State Senator for District 25 from 1984 to 1992. His local legislative office was located in Sarasota.
From 1988 through 1992, Martha Hetrick, Roma Issacs and Donna Peacock were employed by Johnson as executive secretaries. Included among their duties was the preparation of travel reimbursement vouchers.
Martha Hetrick, Johnson's executive secretary from December 1984 until June 1988, had previously worked for the state and was familiar with how to complete travel vouchers. She reviewed Johnson's legislative calendar to identify legislative trips. The legislative calendar did not contain any mileage figures for any specific trip or for travel to or from any specific destination. The mileage amounts for a new destination were initially calculated by her by using a street and highway map, together with a ruler. Once a mileage amount for a destination was calculated, it was not remeasured. Instead, previously prepared travel vouchers were used for specific mileages, and recurring destinations and their mileage were put on a chart. This procedure for preparing vouchers for local legislative travel was passed on by Ms. Hetrick to her successor, Roma Issacs, who in turn passed this procedure to her successor, Donna Peacock.
When Ms. Hetrick completed a travel reimbursement, it contained information identifying the date, destination, purpose and mileage for each trip. The completed voucher would be placed in Johnson's "to sign" folder.
Johnson never asked Ms. Hetrick to falsify any mileage on the travel vouchers when she prepared them for him. Johnson told her to be careful and accurate in the completion of the travel vouchers.
Donna Peacock served as Johnson's executive secretary from January of 1990 until April 30, 1992. Her duties included the preparation of travel reimbursement vouchers.
Her predecessor, Roma Issacs, trained Ms. Peacock in completing Johnson's travel vouchers. Ms. Issacs gave Ms. Peacock a list of destinations and mileage figures and showed her where the old travel vouchers were kept.
Ms. Peacock reviewed Johnson's calendar to determine the destinations for his trips and prepared the voucher with the date and mileage. The mileage utilized came from the list of destinations and mileage figures which were given to her by Ms. Issacs. She placed the completed travel vouchers in a folder for Johnson to take home and sign.
Neither Johnson nor anyone in his office asked Ms. Peacock to do anything improper with respect to travel vouchers.
From 1988 to 1992, Johnson signed travel reimbursement vouchers and submitted them to the Joint Legislative Management Committee for payment for
local legislative travel. These vouchers routinely listed inflated mileage claims for Johnson's local legislative travel. Johnson never personally prepared any travel voucher nor did he provide the specific mileage amounts to his legislative staff to be placed on the individual vouchers.
On 22 occasions from July 1988 to December 1990, Johnson submitted travel vouchers for payment listing the round-trip distance from his local legislative office to the Mote Marine Laboratory as 38 miles when the actual round-trip distance is just under nine miles.
Between July 1988 and June 1990, Johnson's vouchers contained six round-trips between his local legislative office and St. Armands Circle with distance ranging from 32 miles to 38 miles, while the actual mileage is six miles.
Two of Johnson's travel vouchers listed six miles as the round-trip distance between his local legislative office and the Sarasota City Hall. The actual distance is less than one-half mile.
Twelve of Johnson's travel vouchers were for trips from his local legislative office to the Asolo Performing Arts Center, the Ringling Museum, and the Sudakoff Center. Johnson's travel vouchers listed the round-trip mileage as 17, 18, and 22 miles, respectively, for those destinations. The farthest trip was to the Sudakoff Center which involves an 8.8 mile round trip from Johnson's office.
On 14 occasions, Respondent traveled from his local legislative office to Longboat Key and back. Johnson's travel reimbursement vouchers claimed
round-trip mileage ranging from 32 to 35 miles when the actual round-trip mileage from Johnson's office to Longboat Key's Town Hall and back is just over
16 miles.
Two of Johnson's travel reimbursement vouchers listed the round-trip mileage between Johnson's office and the Gulf Gate Mall as 22 miles when it is actually only 13 miles.
Each travel voucher contained the following statement:
I hereby certify or affirm that above expenses were actually incurred by me as necessary traveling expenses in the performance of my official duties; attendance at a conference
or convention was directly related to official duties of the agency; any meals or lodging included in a conference or convention registration fee have been deducted from
this travel claim; and that this claim is true and correct in every material matter and same confirms in every respect with the
requirements of Section 112.061, Florida Statutes.
Johnson reviewed the travel vouchers by looking at the "left column of the travel voucher" to make sure that the trips listed related to Senate business. If he noted a trip which involved a political or personal activity, Johnson directed that the trip be deleted from the travel voucher. He did not specifically review the dates listed. Johnson assumed that the mileages listed were correct. His assumption was based on the fact that every employee of the
Senate were required to read the Joint Legislative Management Committee policy manual which includes travel policies.
In the latter part of 1990, Donna Peacock noticed a discrepancy between the claimed mileage and the actual mileage as a result of driving Johnson to various events and locations. She told Johnson, and he advised her to "fix it." Thereafter Ms. Peacock corrected the travel voucher and her master list of mileages whenever she noted a discrepancy.
Sometime in 1991, Johnson told Ms. Peacock not to include claims for less than four miles on the travel vouchers. From mid-year 1991 to the end of 1991, Johnson's claims for local travel claims did decrease; however, his actual travel did not decrease.
On September 5, 1992, during Johnson's reelection campaign, a story appeared in the Sarasota Herald Tribune stating that during the period of 1988 through 1990, Johnson routinely filed travel reimbursement vouchers containing erroneous local mileage. The day before the article appeared, Johnson received correspondence from his political opponent, indicating that the voters would not appreciate knowing about the travel vouchers.
Johnson thereafter instructed his legislative aides, to review all of his travel vouchers for the years 1987 through 1992 for local mileage accuracy.
Johnson instructed his aides to review all claims for local travel, and to identify for refund any inaccuracies. He also instructed his aides to identify for refund any trip shorter than four miles, and to resolve any uncertainties in favor of the State.
In a check payable to the Joint Legislative Management Committee, and dated September 11, 1992, Johnson voluntarily remitted the sum of $2,331.16 to reimburse the State for erroneous local travel payments received by him during the years of 1988 through 1992.
The State Attorney's office for the Twelfth Judicial Circuit, at Johnson's request, investigated whether there was sufficient evidence to file criminal charges against him for violating Section 112.61(10), Florida Statutes, by submitting fraudulent mileage claims. Although expressing the opinion that Johnson's record keeping and voucher preparation were unquestionably sloppy, the State Attorney's office concluded that there was no evidence to demonstrate that Johnson knowingly committed a criminal act.
CONCLUSIONS OF LAW
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).
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
Special Advocate, that is asserting the affirmative: that the Respondent 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.
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.
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 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.
In order to determine that Johnson violated Section 112.313(6), Florida Statutes, it must be determined that he acted with "specific intent" to misuse his public position.
An essential element of the charged offense under section 112.313(6) is the statutory requirements that appellant acted with wrongful intent, that is, that she acted with reasonable notice that her conduct was inconsistent with the proper performance of her public duties and would be in violation of the law or the Code of Ethics in part III of Chapter 112.
Blackburn v. Commission on Ethics, 589 So.2d 431, 434 (Fla. 1st DCA 1991).
The Special Advocate has failed to establish by a preponderance of the evidence that Johnson violated Section 112.313(6). Johnson did not direct anyone to prepare a false travel voucher. Johnson did not prepare the travel vouchers himself but relied upon staff to do so. Ms. Hetrick, Johnson's executive secretary, incorrectly calculated the mileages used in preparing the travel vouchers. The error was not an intentional error. She complied a mileage list of frequently traveled destinations and included the erroneous mileage information. Unfortunately, Ms. Hetrick and her successors relied on the miscalculated mileage in preparing the travel vouchers. Johnson did not review the travel voucher for the correct mileage, thinking that his staff could accurately compute the mileage. In his review of the travel vouchers, Johnson concentrated on whether the trip claimed was for a legislative purpose. The Special Advocate has not established that Johnson corruptly used his official position or performed his official duties to gain a special benefit.
Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED a Final Order and Public Report be entered finding that Robert
Johnson did not violate Section 112.313(6), Florida Statutes, and dismissing the compliant filed against him.
DONE AND ENTERED this 13th day of March 1995, 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 13th day of March 1995.
APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-2390EC
To comply with the requirements of Section 120.59(2), Florida Statutes (1993), the following rulings are made on the Respondent's Proposed findings of fact:
Respondent's Proposed Findings of Fact.
Paragraphs 1-7: Accepted in substance.
Paragraph 8: The first half of the first sentence is rejected as subordinate to the facts actually found. The remainder is accepted in substance.
Paragraph 9: Accepted in substance.
Paragraph 10: Rejected as subordinate to the facts actually found.
Paragraphs 11-14: Accepted in substance.
Paragraph 15: The second sentence is rejected as subordinate to the facts actually found. The remainder is accepted in substance.
Paragraphs 16-18: Accepted in substance.
Paragraph 19: Rejected as unnecessary.
Paragraphs 20-22: Accepted in substance.
Paragraphs 23-24: Rejected as unnecessary.
Paragraph 25: The first sentence is accepted in substance. The remainder is rejected as unnecessary.
Paragraph 26: Accepted in substance.
Paragraph 27: The first sentence is rejected as unnecessary. The remainder is accepted in substance.
Paragraph 28: The first sentence is rejected as unnecessary. The second, third, and fourth sentences are rejected as not supported by credible testimony.
The fifth and sixth sentences are accepted in substance. The seventh sentence is rejected as not supported by the greater weight of the evidence. The last sentence is accepted in substance.
Paragraph 29: The first sentence is accepted in substance to the extent that there was a reduction in the travel claimed from mid 1991 to the end of 1991. The second and third sentences are rejected as not necessary. The fourth and fifth sentences are accepted in substance. The last sentence is rejected as not supported by the greater weight of the evidence.
Paragraph 30: The last sentence is rejected as unnecessary. The remainder is accepted in substance.
Paragraph 31: Rejected as subordinate to the facts actually found.
COPIES FURNISHED:
John E. Griffin, Esquire Special Advocate Commission on Ethics
3840 North Monroe Street, Suite 304
Tallahassee, Florida 32303
Mark Herron, Esquire Post Office Box 10555
Tallahassee, Florida 32302-2555
Carrie Stillman Complaint Coordinator Commission on Ethics Post Office Box 15709
Tallahassee, Florida 32317-5709
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 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.
================================================================= ORDER OF REMAND TO THE DIVISION OF
ADMINISTRATIVE HEARINGS
=================================================================
BEFORE THE STATE OF FLORIDA
COMMISSION ON ETHICS
In re ROBERT M. JOHNSON, DOAH CASE NO. 94-2390EC
COMPLAINT NO. 92-158
Respondent.
/
ORDER OF REMAND TO THE DIVISION OF ADMINISTRATIVE HEARINGS
Upon consideration of the Special Advocate's Motion to relinquish Jurisdiction and To Remand To Division of Administrative Hearings, the Commission on Ethics, pursuant to Fla. Admin. Code Rule 34-5.0183 find as follows:
At the close of the formal hearing in this matter which was held before Hearing Officer Susan Kirkland of the Division of Administrative Hearings ("DOAH") on January 26, 1995, the Special Advocate and the Respondent were given an opportunity pursuant to Section 120.5(1)(b)4, Florida Statutes, to submit proposed findings of fact, conclusions of law, and closing argument.
Although the Special Advocate's Legal Assistant states under oath that she hand delivered/timely filed with DOAH the Special Advocate's Proposed Recommended Order (attached hereto) on March 1, 1995, in her Recommended Order issued on March 13, 1995, the Hearing Officer indicates that the Special Advocate did not file a Proposed Recommended Order. Therefore, his was not considered by the Hearing Officer in issuing her Recommended Order and no rulings were made on his proposed findings of fact, as is required by Section 120.59(2), Florida Statutes.
Fundamental fairness dictates that this matter be remanded to the Hearing Officer so that she can consider the Special Advocate's Proposed Recommended Order and issue an amended Recommended Order.
Respondent, who has no objection to the remand, would not be prejudiced thereby.
WHEREFORE, the Commission on Ethics remands this case to the Division of Administrative Hearings in order for the Hearing Officer to consider the Special Advocate's Proposed Recommended Order and to issue an Amended Recommended Order in which she rules on the Special Advocate's proposed findings as required by Section 120.59(2), Florida Statutes.
ORDERED by the State of Florida Commission on Ethics meeting in public session on Thursday, April 20, 1995.
April 25, 1995 Date
R. Terry Rigsby Chairman
cc: Mr. Mark Herron, Attorney for Respondent
Mr. John E. Griffin, Special Advocate for the Commission
=================================================================
AMENDED RECOMMENDED ORDER
=================================================================
STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
In Re: ROBERT M. JOHNSON ) CASE NO. 94-2390EC
)
AMENDED 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 January 26, 1995, in Sarasota, Florida.
APPEARANCES
For Advocate: John E. Griffin, Esquire
Special Advocate for the Commission 3840 North Monroe Street, Suite 304
Tallahassee, Florida 32303
For Respondent: Mark Herron, Esquire
Post Office Box 10555 Tallahassee, Florida 32302
STATEMENT OF THE ISSUES
Whether Respondent violated Section 112.313(6), Florida Statutes.
PRELIMINARY STATEMENT
On June 16, 1993, the Florida Commission on Ethics (Commission) issued an Order Finding Probable Cause to believe that Respondent, Robert M. Johnson (Johnson), violated Article II, Section 8(e), Florida Constitution and Section 112.313(9)(a)3, Florida Statutes, and that Johnson violated Section 112.313(6),
Florida Statutes, by submitting fraudulent travel claims for reimbursement. On April 29, 1994, the case was forwarded to the Division of Administrative Hearings for assignment to a hearing officer.
The case was scheduled for final hearing on August 3, 1994. On July 26, 1994, the Special Advocate filed a Motion for Continuance which was granted. The case was rescheduled for final hearing on January 26, 1995. On September 14, 1994, the Special Advocate filed a Motion for Temporary Relinquishment of Jurisdiction. The motion was granted. On October 13, 1994, the Commission granted Respondent's Motion to Dismiss that portion of the probable cause order relating to a violation of Article II, Section 8(e), Florida Constitution and
Section 112.313(9)(a)3, Florida Statutes. The issue remaining for final hearing was whether Johnson violated Section 112.313(6), Florida Statutes.
At the final hearing the Special Advocate called Martha Hetrick and Donna Peacock as witnesses. The Special Advocate's Exhibit Nos. 1-5 were admitted into evidence. Johnson testified on his own behalf and called Linda Sue Mineer and Gary Wells as witnesses. Johnson's Exhibit No. 1 was admitted in evidence. The parties stipulated to the facts contained in Section V of the Prehearing Stipulation submitted by the parties.
The parties agreed to file proposed recommended orders within ten days of the filing of the transcript. The transcript was filed on February 14, 1995. Respondent filed a proposed recommended order on March 1, 1995. The Division of Administrative Hearings did not have a record of the filing of Special Advocate's proposed recommended order prior to the issuance of the Recommended Order on March 13, 1995. Respondent's proposed findings of fact were addressed in the appendix to the Recommended Order. After the Recommended Order was issued, the Special Advocate advised the Division that he had filed a proposed recommended order with the Division on March 1, 1995.
On April 25, 1995, the Commission issued an Order of Remand to the Division of Administrative Hearings, requesting that the Hearing Officer consider the Special Advocate's Proposed Recommended Order. The Special Advocate's findings of fact are addressed in the appendix to this Amended Recommended Order.
FINDINGS OF FACT
Respondent, Robert M. Johnson (Johnson) served as Florida State Senator for District 25 from 1984 to 1992. His local legislative office was located in Sarasota.
From 1988 through 1992, Martha Hetrick, Roma Issacs and Donna Peacock were employed by Johnson as executive secretaries. Included among their duties was the preparation of travel reimbursement vouchers.
Martha Hetrick, Johnson's executive secretary from December 1984 until June 1988, had previously worked for the state and was familiar with how to complete travel vouchers. She reviewed Johnson's legislative calendar to identify legislative trips. The legislative calendar did not contain any mileage figures for any specific trip or for travel to or from any specific destination. The mileage amounts for a new destination were initially calculated by her by using a street and highway map, together with a ruler. Once a mileage amount for a destination was calculated, it was not remeasured. Instead, previously prepared travel vouchers were used for specific mileages, and recurring destinations and their mileage were put on a chart. This procedure for preparing vouchers for local legislative travel was passed on by
Ms. Hetrick to her successor, Roma Issacs, who in turn passed this procedure to her successor, Donna Peacock.
When Ms. Hetrick completed a travel reimbursement, it contained information identifying the date, destination, purpose and mileage for each trip. The completed voucher would be placed in Johnson's "to sign" folder.
Johnson never asked Ms. Hetrick to falsify any mileage on the travel vouchers when she prepared them for him. Johnson told her to be careful and accurate in the completion of the travel vouchers.
Donna Peacock served as Johnson's executive secretary from January of 1990 until April 30, 1992. Her duties included the preparation of travel reimbursement vouchers.
Her predecessor, Roma Issacs, trained Ms. Peacock in completing Johnson's travel vouchers. Ms. Issacs gave Ms. Peacock a list of destinations and mileage figures and showed her where the old travel vouchers were kept.
Ms. Peacock reviewed Johnson's calendar to determine the destinations for his trips and prepared the voucher with the date and mileage. The mileage utilized came from the list of destinations and mileage figures which were given to her by Ms. Issacs. She placed the completed travel vouchers in a folder for Johnson to take home and sign.
Neither Johnson nor anyone in his office asked Ms. Peacock to do anything improper with respect to travel vouchers.
From 1988 to 1992, Johnson signed travel reimbursement vouchers and submitted them to the Joint Legislative Management Committee for payment for local legislative travel. These vouchers routinely listed inflated mileage claims for Johnson's local legislative travel. Johnson never personally prepared any travel voucher nor did he provide the specific mileage amounts to his legislative staff to be placed on the individual vouchers.
On 22 occasions from July 1988 to December 1990, Johnson submitted travel vouchers for payment listing the round-trip distance from his local legislative office to the Mote Marine Laboratory as 38 miles when the actual round-trip distance is just under nine miles.
Between January 1988 and September 1990, Johnson's vouchers contained
14 round-trips between his local legislative office and St. Armands Circle with distances ranging from 10 miles to 38 miles, while the actual mileage is 5.4 miles.
Two of Johnson's travel vouchers listed six miles as the round-trip distance between his local legislative office and the Sarasota City Hall. The actual distance is less than one-half mile.
From June 1988 through February 1991, Johnson claimed mileage for 20 trips to the Asolo Center for Performing Arts. From June 1988 to August 1990, Johnson claimed 17 miles for seven trips, ten miles for one trip, eleven miles for one trip, and fourteen miles for three trips. Beginning in December, 1990, Johnson claimed eight miles. The actual mileage is 7.6 miles.
From August 1988 to July 1990, Johnson claimed mileage for eight trips to Sudakoff Hall. Johnson claimed 18 miles for two trips and 14 miles for the remaining trips. The actual mileage was approximately 8.8 miles.
From January 1988 to December 1990, Johnson claimed mileage for 26 trips to the Hyatt. The actual mileage was approximately two miles. Johnson claimed mileage ranging from four to eleven miles.
On 14 occasions, Respondent traveled from his local legislative office to Longboat Key and back. Johnson's travel reimbursement vouchers claimed
round-trip mileage ranging from 32 to 35 miles when the actual round-trip mileage from Johnson's office to Longboat Key's Town Hall and back is just over
16 miles.
Two of Johnson's travel reimbursement vouchers listed the round-trip mileage between Johnson's office and the Gulf Gate Mall as 22 miles when it is actually only 13 miles.
From January 1988 to September 1990, Johnson claimed mileage for 12 round trips to the Ringling Museum. The actual distance is 7.6 miles. For ten of the trips, Johnson claimed 17 miles for reimbursement. For the other two trips, he claimed 14 and 12 miles.
Each travel voucher contained the following statement:
I hereby certify or affirm that above expenses were actually incurred by me as necessary traveling expenses in the performance of my official duties; attendance at a conference
or convention was directly related to official duties of the agency; any meals or lodging included in a conference or convention regis- tration fee have been deducted from this travel claim; and that this claim is true and correct in every material matter and same conforms in every respect with the requirements of Section 112.061, Florida Statutes.
Johnson reviewed the travel vouchers by looking at the "left column of the travel voucher" to make sure that the trips listed related to Senate business. If he noted a trip which involved a political or personal activity, Johnson directed that the trip be deleted from the travel voucher. He did not specifically review the dates listed. Johnson assumed that the mileages listed were correct. His assumption was based on the fact that every employee of the Senate was required to read the Joint Legislative Management Committee policy manual which includes travel policies.
In the latter part of 1990, Donna Peacock noticed a discrepancy between the claimed mileage and the actual mileage as a result of driving Johnson to various events and locations. She told Johnson, and he advised her to "fix it." Thereafter Ms. Peacock corrected the travel voucher and her master list of mileages whenever she noted a discrepancy. Johnson did not specifically tell Ms. Peacock to go back and retabulate his old travel vouchers.
Sometime in 1991, Johnson told Ms. Peacock not to include claims for less than four miles on the travel vouchers. From mid-year 1991 to the end of
1991, Johnson's claims for local travel claims did decrease; however, his actual travel did not decrease.
On September 5, 1992, during Johnson's reelection campaign, a story appeared in the Sarasota Herald Tribune stating that during the period of 1988 through 1990, Johnson routinely filed travel reimbursement vouchers containing erroneous local mileage. The day before the article appeared, Johnson received correspondence from his political opponent, indicating that the voters would not appreciate knowing about the travel vouchers.
Johnson thereafter instructed his legislative aides, to review all of his travel vouchers for the years 1987 through 1992 for local mileage accuracy.
Johnson instructed his aides to review all claims for local travel, and to identify for refund any inaccuracies. He also instructed his aides to identify for refund any trip shorter than four miles, and to resolve any uncertainties in favor of the State.
In a check made payable to the Joint Legislative Management Committee, and dated September 11, 1992, Johnson voluntarily remitted the sum of $2,331.16 to reimburse the State for erroneous local travel payments received by him during the years 1988 through 1992.
The State Attorney's office for the Twelfth Judicial Circuit, at Johnson's request, investigated whether there was sufficient evidence to file criminal charges against him for violating Section 112.61(10), Florida Statutes, by submitting fraudulent mileage claims. Although expressing the opinion that Johnson's record keeping and voucher preparation were unquestionably sloppy, the State Attorney's office concluded that there was no evidence to demonstrate that Johnson knowingly committed a criminal act.
CONCLUSIONS OF LAW
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).
The burden of proof, absent a statutory directive to the contrary, is on the party asserting the affirmative of the issue in 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 Special Advocate, that is asserting the affirmative: that the Respondent 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.
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.
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 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.
In order to determine that Johnson violated Section 112.313(6), Florida Statutes, it must be determined that he acted with "specific intent" to misuse his public position.
An essential element of the charged offense under section 112.313(6) is the statutory requirement that appellant acted with wrongful intent, that is, that she acted with reasonable notice that her conduct was inconsistent with the proper performance of her public duties
and would be in violation of the law or the Code of Ethics in part III of Chapter 112.
Blackburn v. Commission on Ethics, 589 So.2d 431, 434 (Fla. 1st DCA 1991).
The Special Advocate has failed to establish by a preponderance of the evidence that Johnson violated Section 112.313(6). Johnson did not direct anyone to prepare a false travel voucher. Johnson did not prepare the travel vouchers himself but relied upon staff to do so. Ms. Hetrick, Johnson's executive secretary, incorrectly calculated the mileages used in preparing the travel vouchers. The error was not an intentional error. She complied a mileage list of frequently traveled destinations and included the erroneous mileage information. Unfortunately, Ms. Hetrick and her successors relied on the miscalculated mileage in preparing the travel vouchers. Johnson did not review the travel voucher for the correct mileage, thinking that his staff could accurately compute the mileage. In his review of the travel vouchers, Johnson concentrated on whether the trip claimed was for a legislative purpose. The Special Advocate has not established that Johnson corruptly used his official position or performed his official duties to gain a special benefit.
RECOMMENDATION
Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED a Final Order and Public Report be entered finding that Robert
M. Johnson did not violate Section 112.313(6), Florida Statutes, and dismissing the compliant filed against him.
DONE AND ENTERED this 16th day of August 1995, 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 16th day of August, 1995.
APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-2390EC
To comply with the requirements of Section 120.59(2), Florida Statutes (1993), the following rulings are made on the parties' findings of fact.
Special Advocate's Proposed findings of fact:
Paragraph 1: The first sentence is accepted. The second sentence is rejected as unnecessary.
Paragraphs 2-3: Rejected as subordinate to the facts actually found.
Paragraphs 4-5: Accepted.
Paragraph 6: Accepted in substance.
Paragraph 7: Accepted.
Paragraph 8: Accepted in substance.
Paragraph 9: Rejected as subordinate to the facts actually found.
Paragraph 10: The first and second sentences are rejected as not supported by the greater weight of the evidence.
Advocate Exhibit 4 showed 30 round trips to Mote Marine. The remainder is rejected as subordinate to the facts found.
Paragraph 11: Accepted in substance.
Paragraph 12: The first and last sentences are rejected as not supported by the greater weight of the evidence. Advocate's Exhibit 4 showed 12 trips. The second and third sentences are accepted in substance.
Paragraph 13: The first and last sentences are rejected as not supported by the greater weight of the evidence. The second and third sentences are accepted in substance.
Paragraphs 14-15: Accepted in substance.
Paragraph 16: Accepted.
Paragraph 17: Rejected as unnecessary.
Paragraph 18: Accepted in substance.
Paragraph 19: Rejected as subordinate to the facts found.
Paragraph 20: Sentences 1-6 are accepted in substance. Sentence 7 is accepted in substance except the evidence established that it was four miles rather than one or two. Sentence 8 is rejected as subordinate to the facts found.
Paragraph 21: Accepted.
Paragraph 22: Accepted in substance.
Paragraph 23: Rejected as unnecessary.
Paragraph 24: Accepted.
Paragraph 25: Rejected as unnecessary.
Paragraph 26: Accepted.
Paragraph 27: Accepted in substance.
Paragraph 28: Accepted to the extent that that was Johnson's testimony.
Paragraphs 29-30: Rejected as constituting argument.
Paragraph 31: Rejected a subordinate to the facts found.
Paragraphs 32-34: Rejected as constituting argument.
Respondent's Proposed Findings of Fact.
Paragraphs 1-7: Accepted in substance.
Paragraph 8: The first half of the first sentence is rejected as subordinate to the facts actually found. The remainder is accepted in substance.
Paragraph 9: Accepted in substance.
Paragraph 10: Rejected as subordinate to the facts actually found.
Paragraphs 11-14: Accepted in substance.
Paragraph 15: The second sentence is rejected as subordinate to the facts actually found. The remainder is accepted in substance.
Paragraphs 16-18: Accepted in substance.
Paragraph 19: Rejected as unnecessary.
Paragraphs 20-22: Accepted in substance.
Paragraphs 23-24: Rejected as unnecessary.
Paragraph 25: The first sentence is accepted in substance. The remainder is rejected as unnecessary.
Paragraph 26: Accepted in substance.
Paragraph 27: The first sentence is rejected as unnecessary. The remainder is accepted in substance.
Paragraph 28: The first sentence is rejected as unnecessary. The second, third, and fourth sentences are rejected as not supported by credible testimony. The fifth and sixth sentences are accepted in substance. The seventh sentence is rejected as not supported by the greater weight of the evidence. The last sentence is accepted in substance.
Paragraph 29: The first sentence is accepted in substance to the extent that there was a reduction in the travel claimed from mid 1991 to the end of 1991. The second and third sentences are rejected as not necessary. The fourth and fifth sentences are accepted in substance. The last sentence is rejected as not supported by the greater weight of the evidence.
Paragraph 30: The last sentence is rejected as unnecessary. The remainder is accepted in substance.
Paragraph 31: Rejected as subordinate to the facts actually found.
COPIES FURNISHED:
John E. Griffin, Esquire Special Advocate Commission on Ethics
3840 North Monroe Street, Suite 304
Tallahassee, Florida 32303
Mark Herron, Esquire Post Office Box 10555
Tallahassee, Florida 32302-2555
Carrie Stillman Complaint Coordinator Commission on Ethics Post Office Box 15709
Tallahassee, Florida 32317-5709
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 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.
| Issue Date | Proceedings |
|---|---|
| Oct. 18, 1995 | Final Order and Public Report filed. |
| Aug. 21, 1995 | Letter to Bonnie Williams from SBK sent out. (RE: enclosing Advocate's exhibit 5 which was omitted from the record transmitted on 8/16/95) |
| Aug. 16, 1995 | Amended Recommended Order sent out. CASE CLOSED. Hearing held 1-26-95. |
| Aug. 02, 1995 | Letter to Sharyn Smith from Bonnie J. Williams Re: Amended Recommended Order filed. |
| May 05, 1995 | Letter to SBK from B. Williams (RE: returning exhibits and transcript of case) filed. |
| Apr. 26, 1995 | Motion to Relinquish Jurisdiction and to Remand to Division of Administrative Hearings filed. |
| Apr. 26, 1995 | Order of Remand to The Division of Administrative Hearings filed. |
| Mar. 14, 1995 | Letter to Hearing Officer from John E. Griffin Re: Filing Proposed Recommended Order filed. |
| Mar. 14, 1995 | (John E. Griffin) Proposed Recommended Order (for Hearing Officer Signature) filed. |
| Mar. 13, 1995 | Recommended Order sent out. CASE CLOSED. Hearing held 1-26-95. |
| Mar. 01, 1995 | Notice of filing Proposed Recommended Order filed. |
| Feb. 14, 1995 | Transcript of Hearing filed. |
| Jan. 26, 1995 | CASE STATUS: Hearing Held. |
| Jan. 18, 1995 | (Commission on Ethics and Robert M. Johnson) Prehearing Stipulation filed. |
| Dec. 12, 1994 | (Commission On Ethics) Notification Of Action In Response To Order Temporarily Relinquishing Jurisdiction filed. |
| Nov. 10, 1994 | Order Granting Motion for Extension of Temporary Relinquishment of Jurisdiction sent out. |
| Nov. 01, 1994 | Amended Second Notice of Hearing sent out. (hearing set for 1/26/95; 10:00am; Sarasota) |
| Oct. 27, 1994 | (Commission on Ethics) Motion for Extension of Temporary Relinquishment of Jurisdiction filed. |
| Sep. 15, 1994 | Order Temporarily Relinquishing Jurisdiction sent out. (parties shall notify the hearing officer in writing by 11/14/94, whether the parties have resolved the issues) |
| Sep. 14, 1994 | (Commission on Ethics) Motion for Temporary Relinquishment of Jurisdiction filed. |
| Aug. 26, 1994 | Notice of Taking Deposition filed. (From John E. Griffin) |
| Aug. 17, 1994 | Second Notice of Hearing sent out. (hearing set for 1/26/95; at 10:00am; in Sarasota) |
| Aug. 16, 1994 | (Commission on Ethics) Response to Order Continuing Hearing filed. |
| Aug. 08, 1994 | Notice of Taking Deposition (from J. Griffin) filed. |
| Aug. 08, 1994 | Notice of Taking Deposition (from J. Griffin) filed. |
| Jul. 29, 1994 | Order Continuing Hearing and Requiring Response sent out. (hearing cancelled; parties to file status report by 8/12/94) |
| Jul. 26, 1994 | Motion for Continuance filed. (John E. Griffin) |
| Jul. 05, 1994 | Notice of Deposition Duces Tecum filed. (From John E. Griffin) |
| Jun. 17, 1994 | Notice of Production From Non-Party filed. (From John E. Griffin) |
| Jun. 16, 1994 | 2nd Amended Notice of Taking Deposition filed. (From John E. Griffin) |
| Jun. 14, 1994 | Amended Notice of Taking Deposition filed. (From John E. Griffin) |
| Jun. 13, 1994 | Notice of Taking Deposition (from J. Griffin) filed. |
| May 17, 1994 | Order of Prehearing Instructions sent out. |
| May 17, 1994 | Notice of Hearing sent out. (hearing set for 8/4/94; 10:00am; Sarasota) |
| May 13, 1994 | Joint Response to Initial Order filed. |
| May 04, 1994 | Initial Order issued. |
| Apr. 29, 1994 | Agency Referral letter; Complaint; Determination of Investigative Jurisdiction and Order to Investigate; Report of Investigation; Interdepartmental Memorandum from H. Lee (re: fraudulent mileage claims); Advocate`s Recommendation; Order Finding Probable C |
| Issue Date | Document | Summary |
|---|---|---|
| Oct. 12, 1995 | Agency Final Order | |
| Apr. 25, 1995 | Remanded from the Agency | |
| Mar. 13, 1995 | Recommended Order | RO: Senator did not corruptly submit erroneous travel vouchers. Amended RO: Senator did not corruptly submit erroneous travel vouchers. |
