STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

In Re: GARY LATHAM ) CASE NO. 95-3717EC

)

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 October 2 and 3, 1995, in Tallahassee, Florida.

APPEARANCES

For Petitioner: Virlindia Doss

Assistant Attorney General Attorney General's Office The Capitol, PL-01

Tallahassee, Florida 32399-1050

For Respondent: Mark Herron, Esquire

Akerman, Senterfitt & Eidson

216 South Monroe Street, Suite 200 Tallahassee, Florida 32301-0503

STATEMENT OF THE ISSUES

Whether Respondent violated Section 112.313(6), Florida Statutes, by engaging in unsolicited and unwanted sexually or romantically oriented behavior toward a subordinate female employee, and if so, what penalty should be imposed.

PRELIMINARY STATEMENT

On July 18, 1995, the Florida Commission on Ethics entered an Order Finding Probable Cause to believe that Respondent, Gary Latham, as a member of the Florida Parole Commission, violated Section 112.313(6), Florida Statutes. On July 25, 1995 the case was forwarded to the Division of Administrative Hearings for assignment to a Hearing Officer.

At the final hearing, the Advocate called the following witnesses: Claretha Billingslea Walker, Brenda Burkhalter, Jon Kraus, Kenneth Simmons, Edward Spooner, Gene Strickland, Linda Summers, Carolyn Tibbetts, Frank Trueblood, and Judith Wolson. Advocate's Exhibits 1, 3, 4, 6-8, 13, 14, 18, 19 and 21 were

admitted in evidence. Advocate's Exhibits 17 and 20 were proffered.

At the final hearing, the Respondent testified in his own behalf and called the following witnesses: Sharon Latham, Brenda Henry, Linda Summers, Mary Pons, and Murlene Amison.

Respondent's Exhibits 3A, 3B, 3C, 4-8 and 10 were admitted in evidence.

At the final hearing the parties agreed to file proposed recommended orders within 15 days of the date of the filing of the transcript. The transcript was filed on October 23, 1995. The parties requested an extension of time to file their proposed recommended orders. The request was granted. The parties filed their Proposed Recommended Orders on November 13, 1995. The parties' proposed findings of fact are addressed in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. Respondent, Gary Latham (Latham), has served as a member of the Florida Parole Commission (Parole Commission) since July 24, 1992.

   
   

2. Claretha Billingslea Walker started to work for the Parole Commission on May 1, 1991, as an Administrative Secretary to the General Counsel's Office. At all times pertinent to this Complaint, she was known as Claretha Billingslea and will be so referred to for purposes of this Complaint.

   
   

3. Effective May 27, 1994, Ms. Billingslea was promoted to the position of Executive Secretary to Commissioner Judith Wolson.

   
   

4. On July 1, 1994, Ms. Wolson became Chairman of the Parole Commission. Ms. Billingslea was promoted to the position of Senior Executive Secretary to the Chairman.

   
   

5. When a potential opening arose, Latham and Ms. Billingslea discussed the possibility of Ms. Billingslea accepting a position as the Executive Secretary to Latham. Latham had previously interviewed Ms. Billingslea for an Executive Secretary position in his office approximately two years before. Ms. Billingslea was interested in coming to work for Latham because a number of her duties had been eliminated when Ms. Wolson was made Chairman, but she was concerned about making such a move because she had been with Chairman Wolson's office such a short time.

6. Latham discussed the possibility of transferring Ms. Billingslea to his office with Chairman Wolson and her administrative assistant, Gene Strickland. Both Chairman Wolson and Mr. Strickland agreed that it would be a good opportunity for Ms. Billingslea to learn more about the duties in a Commissioner's office because the work in the Chairman's office was more administrative than that in a Commissioner's office. Neither Mr. Strickland nor Chairman Wolson was dissatisfied with Ms. Billingslea's work.

   
   

7. Prior to hiring Ms. Billingslea, Latham also discussed the hiring with his future administrative assistant, Brenda Henry, and with his wife.

   
   

8. Effective August 5, 1994, Ms. Billingslea was reassigned to the position of Executive Secretary to Latham. Because there is only one position of Senior Executive Secretary in the Parole Commission (the Chairman's Secretary) this reassignment was nominally a demotion. It did not act as a demotion, however, because Ms. Billingslea's salary and benefits remained unchanged.

   
   

9. In her capacity as Executive Secretary to Latham, Ms. Billingslea reported directly to Latham. As a career service employee, Ms. Billingslea could not be unilaterally fired by Latham, but as her direct supervisor Latham could set the wheels in motion for her termination. Ms. Billingslea understood that the Chairman would have to approve her termination. Latham had the authority to assign tasks to Ms. Billingslea and to grant or deny her leave or flex time.

   
   

10. From the start of Ms. Billingslea's employment in Latham's office, Latham engaged in comments and behavior of questionable propriety. He told her that he would not be able to get any work done with such a pretty secretary. Ms. Billingslea took this as a joke.

    
    

11. On another occasion, one of Ms. Billingslea's male friends complained to her that Latham had been rude to him when he called. She thought Latham might have been upset that she was receiving too many personal calls, but when she asked Latham about it, he told her no, and said, "I guess I'll just have to get used to guys calling all the time with such a pretty secretary."

    
    

12. Latham often stared at Ms. Billingslea, looking her up and down. In describing these looks, Ms. Billingslea stated, "The way he looks at me, it is really weird. And it makes me feel uncomfortable, the way he kind of stares and looks me up and down. It will almost be as if he's going to say something, but he never said anything." Once when he was looking at her in this

    strange way, Ms. Billingslea asked him whether there was something he wanted to say, to which he responded, "No, that was my sexy look." At the time she took it as a joke.

    
    

13. One day Latham told Ms. Billingslea that he had been on his way to a friend's house and had gotten lost and ended up on her street. He said that he had gone by her house and that she had a nice place. He asked her why she kept her blinds closed so tightly.

    
    

14. Whenever the Florida Parole Commission denies parole, a "947.18" report is completed, justifying the decision not to grant the parole. Procedurally, the Parole Commission will make a decision to grant or deny parole at a meeting. The case is then assigned to a commissioner to prepare a 947.18 report. The report is prepared in the office of the commissioner and two weeks after the initial consideration the case is placed back on the agenda for review and acceptance of the 947.18 report.

    
    

15. At its meeting on September 21, 1994, the Parole Commission denied parole for an inmate who had been convicted of sexually abusing his daughters. Latham had been assigned to prepare the 947.18 report. Ms. Henry drafted the report for Ms. Billingslea to type. The report was very sexually explicit. After the report was typed, Ms. Billingslea took it to Latham for his review. Both Latham and Ms. Billingslea commented that it was an interesting case. Latham closed his eyes and in a low voice began to describe the graphic details of the sexual abuse to Ms. Billingslea. Ms. Billingslea later asked Ms. Henry if the file contained any pictures.

    
    

16. On September 27, 1994, Latham went into Ms. Billingslea's office and sat down in front of her desk. He informed her that he had "the hots" for her. He told Ms. Billingslea she had done nothing to make him approach her in this way, but that he did not know what had come over him lately, he had been attracted to a lot of young pretty women, and she was just "such a doll." He told her that he had nasty thoughts about her while he taught Sunday School. When she told him that she could not work for him if she were to be with him sexually, he responded that she wouldn't be working for him that he would be working for her. When she told him that she was not interested, he became defensive, stating that he had a lot of political power. His last words to her in that encounter were, "I might not be able to keep my hands to myself."

    
    

17. Later the same day, as Ms. Billingslea was preparing to leave work, Latham asked her to stay late. Over and over, he asked her to stay and "be with him," initially standing behind her chair, preventing her from pushing back.

18. Ms. Billingslea took Latham's remarks and actions on September 27 as an invitation to a sexual or romantic relationship, which she had neither solicited or encouraged. Ms. Billingslea did not misunderstand Latham or his intentions.

    
    

19. Ms. Billingslea was afraid that her rejection of Latham's advances would cost her her job. She believed that Latham could cause her to be fired.

    
    

20. On September 28, 1994, Ms. Billingslea was ill. She called her doctor's office and requested that the doctor call in a prescription for her to a local pharmacy. The doctor's office did call in a prescription. Ms. Billingslea advised Latham that she felt ill to which Latham responded that she had just "better be to work." Ms. Billingslea took this remark as an admonishment not to take sick leave.

    
    

21. On October 3, 1994, Ms. Billingslea was late for work. She had tried to call the office to advise that she would be late but no one answered the telephone. On October 3, 1994, Latham expressed concern to Ms. Billingslea that she was abusing or not accurately reporting her leave time.

    
    

22. Ms. Billingslea perceived that Latham's attitude toward her became cool after their conversation on September 27. Although Latham had never said anything to Ms. Billingslea about being tardy or being absent from work prior to September 27 because he did not think that it was a big deal, he began to voice his dissatisfaction with her work hours after she had spurned his advances.

    
    

23. Ms. Billingslea went to the Parole Commission's personnel officer, Frank Trueblood. She wanted to take time off from work to look for another job and asked Mr. Trueblood if there was any type of leave request that she could take which could not be denied by Latham.

    
    

24. Mr. Trueblood questioned Ms. Billingslea about the underlying nature of her problems and she told him about Latham's actions. Ms. Billingslea did not want to create a problem but wanted to find another job.

    
    

25. Mr. Trueblood told Ms. Billingslea that she could file an informal complaint against Latham and that it would remain confidential.

    
    

26. On October 5, 1994, Ms. Billingslea filed an informal complaint against Latham. About 5:00 p.m. that day she met with Chairman Wolson, Mr. Strickland and Clay Phillips to discuss the

    situation. Chairman Wolson told Ms. Billingslea that she would be transferred to another section. Ms. Billingslea did not display eagerness to file a formal complaint against Latham.

    
    

27. Latham saw Ms. Billingslea in Chairman Wolson's office and after Ms. Billingslea had left, he asked to speak with Chairman Wolson. Latham wanted to know what was going on but Chairman Wolson would only tell him that Ms. Billingslea was being transferred to Clemency and that Murlene Amison would be transferred to his office as his secretary.

    
    

28. At first Latham was upset at the news of the transfer and told Chairman Wolson that it would be setting a dangerous precedent to make the transfer. Latham told Chairman Wolson that he would like to "save face" in the matter and be the one who would offer the transfer to Ms. Amison. Latham then became

    exuberant about the transfer, closing his fist, punching up with it in a victory signal and saying "yes." He left Chairman's Wolson's office.

    
    

29. A few minutes later, Latham returned to Chairman Wolson's office and told her that he thought he had figured out what had happened. He said that Ms. Billingslea had been sexually harassing him and that he had talked with her and explained that he did not want to have an affair with her. This was the first time anyone at the Parole Commission had heard Latham's claim of sexual harassment by Ms. Billingslea.

    
    

30. On October 6, 1994, Ms. Billingslea filed a formal complaint against Latham. Latham tried to find out from Mr. Trueblood whether Ms. Billingslea had filed a sexual harassment complaint against him but Mr. Trueblood would not tell him.

    
    

31. Effective October 7, 1994, Ms. Billingslea was reassigned to the position of Executive Secretary for the Clemency Section.

    
    

32. On October 7, 1994, Latham called Mr. Strickland to his office and thanked Mr. Strickland for the personnel move, indicating that it had "sav[ed] his butt." Latham asked Mr. Strickland to close the door and then told him that he had been attracted to Ms. Billingslea but nothing had happened, and now, because of the move, nothing would happen. Latham wanted to know what was on the paperwork regarding the transfer. Mr. Strickland told him that it indicated a lateral transfer.

    
    

33. Latham knew that it was wrong for a supervisor to invite a subordinate employee into a sexual or romantic relationship.

    
    

34. Since she has been at the Parole Commission, Ms. Billingslea has never received formal discipline relevant to any fact or issue in this case.

    
    

    CONCLUSIONS OF LAW

    
    

35. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding. Section 120.57(1), Florida Statutes.

    
    

36. Section 112.322, Florida Statutes, and Rule 34-5.0015, Florida Administrative Code, authorize the Commission on Ethics to conduct investigations and to make public reports on complaints concerning violations of Part III, Chapter 112, Florida Statutes.

37. 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 on Ethics, through its Advocate, that is asserting the affirmative: that Latham violated Section 112.313(6), Florida Statutes. Therefore, the burden of establishing by a preponderance of the evidence the elements of Latham's violation is on the Commission on Ethics.

38. 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.

    
    

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

    
    

    [D]one with a wrongful intent and for the purpose of obtaining, or compensating or receiving compen- sation for, any benefit resulting from some act

    or omission of a public servant which is inconsistent with the proper performance of his public duties.

    
    

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

    
    

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

    2. The Respondent must have:

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

       2. performed his official duties.

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

    4. In so doing, the Respondent must have acted corruptly, that is, with wrongful intent and for the purpose of benefiting himself or another

       person from some act or commission which was inconsistent with proper performance of his public duties.

       
       

41. Section 112.313(6), Florida Statutes, includes within its proscriptions sexual harassment of an employee or an attempt to obtain sexual favors from a subordinate employee. Garner v. Commission on Ethics, 415 So.2d 68 (Fla. 1st DCA 1982); Commission on Ethics v. Lancaster, 421 So.2d 711 (Fla. 1st DCA 1982); and Commission on Ethics v. Bruner, 384 So.2d 1339 (Fla. 1st DCA 1980).

    
    

42. The parties have stipulated that Latham as a Florida Parole Commissioner was subject to the requirements of Chapter 112, Florida Statutes. Latham attempted to use his official position as a Florida Parole Commissioner and supervisor to Ms. Billingslea to make sexually charged remarks to her for his own sexual gratification. Although Latham did not have the ability to outright fire Ms. Billingslea, he did have the authority to recommend her termination, to assign her duties, and to evaluate her work performance. In short, Latham had the ability to make the workplace very uncomfortable for Ms. Billingslea.

    
    

43. Having judged the credibility of the witnesses, I find that Latham did make sexual remarks to Ms. Billingslea. He admitted to Gene Strickland that he was attracted to Ms. Billingslea and that the transfer had "saved his butt." Latham knew that it was wrong to make the sexual remarks to Ms. Billingslea and that a romantic or sexual relationship with Ms. Billingslea would be inconsistent with the proper performance of his duties as a Florida Parole Commissioner. His remarks to Ms. Billingslea were intentional. Latham corruptly used his position as a Florida Parole Commissioner to attempt to gain sexual favors from Ms. Billingslea. Thus, Latham violated Section 112.313(6), Florida Statutes.

    
    

44. The Advocate has argued that remarks that Latham had made to various employees of the Parole Commission after the employees had talked to investigators concerning allegations of sexual harassment constitute evidence of guilt on Latham's part as it relates to the issues concerning Ms. Billingslea. The Advocate's argument is rejected. See, Keller v. State, 586 So. 2d 1258 (Fla. 5th DCA 1991). The employees had already spoken to the investigators and from the record it appears that Latham was concerned about allegations that the employees had made concerning his actions toward them not his actions toward Ms. Billingslea.

45. Section 112.317, Florida Statutes, provides penalties which may be imposed for a violation of the Code of Ethics for Public Officers and Employees. Section 112.317(1)(a), provides:

    
    

    1. Violation of any provision of this part

       . . . shall, pursuant to applicable constitutional and statutory procedures, constitute grounds for, and may be punished by, one or more of the following:

       1. In the case of a public officer:

    1. Impeachment.

    2. Removal from office.

    3. Suspension from office.

    4. Public censure and reprimand.

    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.

    
    

46. Sexual harassment of a subordinate employee is a serious offense. However, Latham's behavior is less egregious than some that the Commission on Ethics has addressed. Therefore, I recommend that Latham be given a public censure and reprimand and be fined $4,000.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is

RECOMMENDED that a Final Order be entered finding that Gary Latham violated Section 112.313(6), Florida Statutes, and recommending a civil penalty of $4,000 be imposed and public censure and reprimand.

DONE AND ENTERED this 5th day of January, 1996, 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 5th day of January, 1996.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-3717E

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. Paragraph 1: The first sentence is accepted. The remainder is rejected as unnecessary.

2. Paragraph 2: Rejected as unnecessary.

3. Paragraphs 3-5: Accepted.

4. Paragraph 6: The first sentence is accepted in substance. The second sentence is accepted.

5. Paragraphs 7-8: Accepted in substance.

6. Paragraph 9: Accepted.

7. Paragraph 10: The first two sentences are accepted in substance. The last sentence is rejected as unnecessary.

8. Paragraph 11: Accepted.

9. Paragraphs 12-19: Accepted in substance.

10. Paragraph 20: Rejected as subordinate to the facts found.

11. Paragraph 21: Accepted in substance.

12. Paragraphs 22-25: Accepted.

13. Paragraphs 26-30: Accepted in substance.

14. Paragraph 31: The first two sentences are accepted in substance. The remainder is rejected as subordinate to the facts found.

15. Paragraphs 32-33: Accepted in substance.

16. Paragraph 34: Accepted.

17. Paragraph 35: Accepted in substance.

18. Paragraph 36: Accepted.

19. Paragraph 37: Accepted in substance.

20. Paragraph 38: Rejected as unnecessary.

21. Paragraphs 39-45: Accepted in substance.

22. Paragraphs 46-59: Rejected as irrelevant.

23. Paragraph 60: Rejected as not supported by the evidence.

24. Paragraphs 61-64: Accepted in substance. Respondent's Proposed Findings of Fact.

1. Paragraph 1: Accepted.

2. Paragraph 2: Accepted.

3. Paragraph 3: Accepted.

4. Paragraph 4: The first two sentences are accepted. The last sentence is accepted in substance.

5. Paragraphs 5-6: Accepted in substance.

6. Paragraph 7: Accepted.

7. Paragraph 8: The third and fourth sentences are rejected as subordinate to the facts found. The remainder is accepted in substance.

8. Paragraph 9: The last sentence is accepted. The remainder is accepted in substance. Latham voiced his concerns after the conversation that he had with Ms. Billingslea on September 27.

9. Paragraphs 10-11: Accepted in substance.

10. Paragraphs 12-13: Rejected as unnecessary.

11. Paragraph 14: Accepted in substance.

12. Paragraph 15: Rejected as irrelevant.

13. Paragraph 16: The first sentence is accepted in substance. The remainder is rejected as unnecessary.

14. Paragraph 17: Accepted in substance.

15. Paragraph 18: Rejected as unnecessary.

16. Paragraph 19: The last sentence is accepted in substance except the portion about sexual innuendo. The evidence did establish that he did make sexual innuendos to Ms. Billingslea. The remainder is rejected as subordinate to the facts found.

17. Paragraph 20: The first sentence is rejected as not supported by the record. The second sentence is accepted to the extent that he never directly asked Ms. Billingslea for sex, but he did imply that he wanted a romantic liaison when he asked her to stay after work and be with him. The third, fourth, and fifth sentences are rejected as subordinate to the facts found. The last sentence is rejected as not supported by the record. Latham did tell Ms. Billingslea that he had a lot of political influence.

18. Paragraph 21: The first sentence is rejected as argument. The second sentence is accepted in substance. The third sentence is accepted to the extent that that is what she thought at the time the incident occurred but later she realized that it was not a joke. The third sentence is accepted to the extent that Latham denied the incidents but rejected to the extent that it implies that the incidents did not happen. Having judged the credibility of the witnesses, I find that the incidents did happen. The last sentence is rejected as not supported by the evidence.

19. Paragraph 22: The first four sentences are accepted in substance. The fifth sentence is rejected as subordinate to the facts found. The last sentence is rejected as not supported by the evidence.

20. Paragraph 23: Accepted in substance.

21. Paragraph 24: The first sentence is accepted in substance as that is what Latham testified but rejected to the extent that it implies that the conversation did not take place. Accepted in substance that Latham got lost while going to a fund raiser but rejected that he did not go by her house and that he did not comment that she had a nice house and that her blinds were shut.

22. Paragraph 25: The first two sentences are rejected as not supported by the evidence. The third sentence is rejected as unnecessary. The last two sentences are rejected as not supported by the evidence.

23. Paragraph 26: The first four sentences are accepted in substance. The last two sentences are rejected as subordinate to the facts found.

24. Paragraphs 27-28: Accepted in substance.

25. Paragraph 29: The first sentence is accepted in substance. The second sentence is accepted in substance as that was Latham's testimony but rejected to the extent that it implies that he did not describe the graphic sexual details of the case. The third sentence is rejected as not supported by the evidence based on the credibility of the witnesses. The fourth sentence

    is accepted to the extent that Latham made a comment to Ms. Henry that Ms. Billingslea was interested in the case. The last sentence is accepted in substance.

26. Paragraph 30: Rejected as irrelevant.

27. Paragraph 31: Having judged the credibility of the witnesses, the paragraph is rejected.

28. Paragraph 32: Accepted that Latham disputes Ms. Billingslea's allegations but rejected that Latham's version is credible.

29. Paragraph 33: Accepted in substance.

30. Paragraphs 34-37: Having judged the credibility of the witnesses, the paragraphs are rejected.

31. Paragraph 38: The first and second sentences are accepted in substance. The last sentence is accepted to the extent that Latham did not intentionally restrain Ms. Billingslea but rejected to the extent that it implies that Latham was not asking Ms. Billingslea to stay after work for the purpose of seeking sexual gratification or favors. The remainder is rejected as subordinate to the facts found.

32. Paragraph 39: The first sentence is rejected as constituting argument. The last sentence is rejected as not supported by the evidence.

33. Paragraphs 40-41: Accepted in substance.

34. Paragraph 42: Rejected as constituting argument.

35. Paragraph 43: The first sentence is accepted in substance. The second sentence is rejected as constituting argument.

36. Paragraph 44: The first sentence is accepted in substance. The second sentence is rejected as constituting argument.

37. Paragraph 45: Accepted in substance.

38. Paragraph 46: Rejected as irrelevant.

39. Paragraph 47: Rejected as constituting argument.

40. Paragraphs 48-49: Rejected as irrelevant.

41. Paragraph 50: Rejected as constituting argument.

42. Paragraphs 51-53: Rejected as irrelevant.

43. Paragraph 54: Rejected as constituting argument.

44. Paragraph 55: Rejected as irrelevant.

45. Paragraph 56: Rejected as constituting argument.

46. Paragraph 57: The first two sentences are accepted in substance. The third sentence is accepted as that is what Latham said but rejected as being true. Given other witnesses accounts of Ms. Billingslea's appearance on that date, it is inconceivable that Latham could not have known that she was not sick. The last two sentences are subordinate to the facts found.

47. Paragraph 58: Rejected as constituting argument.

COPIES FURNISHED:

Carrie Stillman Complaint Coordinator Commission on Ethics Post Office Box 15709

Tallahassee, Florida 32317-5709

Mark Herron, Esquire Post Office Box 10555

Tallahassee, Florida 32302-2555

Virlindia Doss

Advocate For the Florida Commission on Ethics

Department of Legal Affairs PL-01, The Capitol

Tallahassee, Florida 32399-1050

Bonnie Williams Executive Director

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

Phil Claypool 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 GARY D. LATHAM, Complaint No. 94-174

DOAH Case No. 95-3717EC

Respondent. Final Order No. COE 96-03

/

FINAL ORDER AND PUBLIC REPORT

This matter came before the Commission on Ethics on the Recommended Order rendered in this matter on January 5, 1996 by the Division of Administrative Hearings (DOAH), a copy of which is attached hereto and incorporated herein 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, by engaging in unsolicited and unwanted sexually or romantically oriented behavior toward a subordinate female employee. As to this violation, the Hearing Officer recommended that a civil penalty of $4,000 be imposed upon the Respondent, and that he be publicly censured and reprimanded.

BACKGROUND

This matter began with the filing of a complaint by Deborah

K. Kearney, alleging that the Respondent, as a member of the Florida Parole Commission, had violated the Code of Ethics for Public Officers and Employees. The allegations were found to be legally sufficient to allege a possible violation of Section 112.313(6), Florida Statutes, and Commission staff undertook a preliminary investigation to aid in the determination of probable cause. On July 18, 1995, the Commission on Ethics issued an order finding probable cause to believe that the Respondent had violated Section 112.313(6), Florida Statutes, by engaging in unsolicited and unwanted sexually or romantically oriented behavior toward a subordinate female employee. The formal hearing before the Hearing Officer was held on October 2 and 3, 1995. The Recommended Order was transmitted to the Commission and the parties on January 5, 1996, and the parties were notified of their right to file exceptions with the Commission by February 1, 1996 in accordance with Rule 34-5.023(3), Florida

Administrative Code. Respondent thereafter sought and received an extension of time to file his exceptions, up to and including February 12, 1996. On February 2, 1996, Respondent filed a Motion for Rehearing. The Advocate's Response to Respondent's Motion for Rehearing was apparently misfiled with the Division of Administrative Hearings on February 13, 1996, and not filed with the Commission until February 26, 1996. Respondent's Exceptions to Recommended Order were filed on February 12, 1996. Having reviewed the Recommended Order, Respondent's Motion for Rehearing, the Advocate's Response, Respondent's Exceptions, and the complete record herein, 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.

STANDARDS FOR REVIEW

Under Section 120.57(1)(b)10, Florida Statutes, an agency may reject or modify the conclusions of law and interpretations of administrative rules contained in the recommended order.

However, the agency may not reject or modify findings of fact made by the Hearing Officer unless a review of the entire record demonstrates that the findings were not based on competent, substantial evidence or that the proceedings on which the findings were based did not comply with the essential requirements of law. See, e.g., Freeze v. Dept. of Business Regulation, 556 So.2d 1204 (Fla. 5th DCA 1990); and Florida Department of Corrections v. Bradley, 510 So.2d 1122 (Fla. 1st DCA 1987). Competent, substantial evidence has been defined by the Florida Supreme Court as such evidence as is "sufficiently relevant and material that a reasonable mind would accept it as adequate to support the conclusions reached." DeGroot v.

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

The agency may not reweigh the evidence, resolve conflicts therein, or judge the credibility of witnesses, because those are matters within the sole province of the hearing officer. Heifetz

1. 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.

   
   

   Similarly, Section 120.57(1)(b)10, Florida Statutes, prohibits the Commission from increasing or decreasing the recommended penalty without reviewing the complete record and stating with particularity its reasons therefore in the order, by citing to the record to justify its action.

   
   

   RULING ON RESPONDENT'S MOTION FOR REHEARING

   The Respondent moves the Commission to investigate and rehear facts not presented by the Respondent's counsel and the Commission's Advocate in the formal hearing before the Hearing Officer. As grounds therefore, the Respondent argues that the victim's health was made an issue at the hearing but that he was precluded from pursuing any examination of her mental condition. He also argues that the victim's medical records had been subpoenaed and were available to the Respondent and the Advocate, and that he now believes the records should have been admissible at hearing. Additionally, he contends that there is new information that tends to support his case but that was not previously known; and that because his former attorney and the Advocate had improper access to certain privileged material, they should have been disqualified from participating in the proceedings.

   
   

   Respondent's Motion for Rehearing is denied. There is no statutory authority to rehear a case for the purpose of hearing new evidence. In fact, in Fla. Dept. of Transportation v. J.W.C. Inc., 396 So.2d 778 (Fla. 1st DCA 1981), the court held:

   
   

   Substantial authority holds that there is no abuse of discretion in denying a rehearing (or remand) sought for the purpose of introducing evidence that could, in the exercise of due diligence, have been offered at the original hearing. Id at 786.

   
   

   Even more persuasive is the case Henderson Signs v. Fla. Dept. Of Transportation, 397 So.2d 769 (Fla. 1st DCA 1981), where the agency attempted to remand a case to the Division of Administrative Hearings for the introduction of a critical piece of evidence. In denying the remand due to the lack of statutory authority for that procedure, the hearing officer wrote:

   
   

   It is as inherent in the administrative process as it is in the judicial process that eventually proceedings must come to an end.

   It works a substantial and unfair hardship on a Respondent to permit the agency by trial and error to perfect piecemeal its case against a Respondent. It is a denial of due process for

   the agency to proceed in such a manner. Id. at 771.

   
   

   It has been the Commission's practice in other proceedings to deny such requests for remand or for the introduction of additional evidence, where the evidence sought to be admitted could have been introduced during the initial hearing before the

   Hearing Officer. In re Rubin DeLeon, 15 F.A.L.R. 2402 (1993); In re Jimmy Bilbo, 17 F.A.L.R. 2637 (1994).

   
   

   Here, Respondent has made no showing why the evidence he now wishes to introduce could not have been introduced at the original hearing before the Hearing Officer. Further, the Commission notes that in the Joint Prehearing Stipulation filed with the Hearing Officer, the Respondent (through his attorney) and the Advocate stipulated to certain facts as not needing to be proved at the hearing. Inasmuch as the majority of the issues the Respondent now seeks to provide additional evidence on were originally stipulated to, it would seem that Respondent's Motion for Rehearing is nothing more than a means to repudiate the factual stipulations he made in advance of the hearing.

   Accordingly, under the reasoning of J.W.C., supra, and Henderson Signs, supra, Respondent's Motion for Rehearing is denied.

   RULINGS ON EXCEPTIONS

   
   

   1. In his first exception, the Respondent excepts to Finding of Fact 5, arguing that it is not based on competent substantial evidence in the record. The finding itself addresses the circumstances that led to Ms. Billingslea coming to work in the Respondent's office. Our review of the record reveals competent substantial evidence to support Finding of Fact 5. [T.25] Further, Heifetz, supra, reminds us that:

      
      

      It is the hearing officer's function to consider all the evidence presented, resolve conflicts, judge credibility of witnesses, draw permissible inferences from the evidence, and reach ultimate findings of fact based upon

      competent substantial evidence. Supra. at 1281.

      
      

      The Hearing Officer ably carried out this function. Thus, Respondent's first exception is denied.

      
      

   2. Respondent's Exception Number 2 is directed to Finding of Fact 6, particularly that portion of the finding discussing Chairman Wolson and Mr. Strickland's view of why Ms. Billingslea would be more interested in working in Mr. Latham's office than the Chairman's, and that neither of them were dissatisfied with her job performance. Respondent argues that the record shows that these findings are conflicting and inconsistent. Our review of the record establishes that the Hearing Officer's finding is based upon competent substantial evidence. [T.56- 57,92- 93,106,118,120-121] Heifetz, supra. Accordingly, Respondent's Exception Number 2 is denied.

   3. Respondent's third exception is directed to the second sentence of Finding of Fact 9. Respondent contends that there is no competent substantial evidence to support the finding that as a career service employee, Ms. Billingslea could not be unilaterally fired by Respondent but that he could set the wheels in motion. Our review of the record reveals competent substantial evidence on which to base this finding. [T.91] Accordingly, Respondent's Exception Number 3 is denied.

      
      

   4. Respondent's fourth exception is directed to Finding of Fact 10, which he submits is unsubstantiated by the record. Our review of the record establishes that there is competent substantial evidence upon which to base this finding. [T.25- 26,31] Accordingly, Respondent's Exception Number 4 is denied.

      
      

   5. In his fifth exception, directed to Finding of Fact 11, the Respondent contends that Ms. Blllingslea's allegations concerning the Respondent's reaction to answering a call for her from a male friend were "hearsay and speculative." However, the record reflects that Ms. Billingslea testified about the incident on direct without objection [T. 26-27], and then Respondent's attorney cross-examined Ms. Billingslea about the incident [T.73- 75]. However, even if her statements about her friend's characterization of the Respondent as "rude" was hearsay, it was not offered to prove that the Respondent was, in fact, rude, but instead, further described the office environment and their working relationship. The weight to ascribe to the testimony was a function of the Hearing Officer, which she ably carried out. Because there is competent substantial evidence to support the finding, Respondent's Exception Number 5 is denied.

      
      

   6. The sixth exception filed by the Respondent excepts to Finding of Fact 12, which he claims is not based upon competent substantial evidence. He objects especially to the Hearing Officer's characterization of his looking at Ms. Billingslea as "strange." We have reviewed the record, and it appears that this finding is based upon Ms. Billingslea's testimony. [T.26,31] Because there is competent substantial record evidence to support the Hearing Officer's finding of fact, Respondent's Exception Number 6 is denied.

      
      

   7. His next exception is directed to Finding of Fact 13, which the Respondent argues is irrelevant. The finding itself concerned the incident where the Respondent drove by Ms. Billingslea's house. The appropriate standard of review at this juncture in the proceedings is whether there is competent substantial evidence to support the finding. If there is, then the weight that the Hearing Officer assigned to that evidence is solely within her province. Our review of the record reveals that there is competent substantial evidence to support Finding

      of Fact 13. [T.27-28,78-80] Accordingly, Respondent's Exception Number 7 is denied.

      
      

   8. Respondent's eighth exception concerns Finding of Fact

1. It is the Respondent's contention that the incident described in the finding is irrelevant and contains no competent substantial evidence of sexual harassment. Respondent's eighth exception is denied. The issue before us is not whether this one finding, in and of itself, is sufficient to conclude that the Respondent violated Section 112.313(6), Florida Statutes. Instead, the issue we must address is whether this finding of fact is supported by competent substantial evidence, and our review of the record reveals the existence of such evidence. [T.28-29,66; Advocate's Exhibit No. 3, p. 62] Accordingly, Respondent's Exception Number 8 is denied.

   
   

   1. In his ninth exception, directed to Finding of Fact 16, the Respondent essentially takes issue with the fact that the Hearing Officer believed Ms. Billingslea's version of the events over that of the Respondent's. That is the Hearing Officer's prerogative. Heifetz, supra. Because there is competent substantial evidence to support this finding [T.31-35,70-71; Advocate's Exhibit Nos. 7 and 8], Respondent's Exception Number 9 is denied.

      
      

   2. In his tenth exception, the Respondent excepts to Finding of Fact 17. For the same reasons discussed in the preceding paragraph, Respondent's Exception Number 10 is denied.

      
      

   3. Respondent's eleventh exception, addressed to Finding of Fact 18, attacks Ms. Billingslea's credibility and argues that the finding itself is irrelevant and "fails as competent substantial evidence." As previously stated, credibility determinations are for the Hearing Officer to make, and where the finding is, as here, supported by competent substantial evidence, we are constrained to accept the finding. Therefore, Respondent's Exception Number 11 is denied.

      
      

   4. Next, Respondent assails Finding of Fact 19. Nonetheless, the finding is based upon competent substantial evidence. [T.34,86] Accordingly, Respondent's Exception Number

      12 is denied.

      
      

   5. In his thirteenth exception, the Respondent excepts to Finding of Fact 20. Again, this finding of fact is a clear example of the Hearing Officer crediting the testimony of Ms. Billingslea over that of the Respondent. Notwithstanding, the Respondent has asked us to reweigh the evidence and reach a different conclusion. We are compelled to decline his invitation and, therefore, deny Exception Number 13.

   6. In his exception to Finding of Fact 21, the Respondent contends that the finding "does not constitute competent substantial evidence toward harassment. It constitutes competent substantial evidence of Mr. Latham's innocence." For the reasons expressed in our denial of Respondent's eighth exception, Respondent's Exception Number 14 is denied.

      
      

   7. In his fifteenth exception, the Respondent excepts to Finding of Fact 22 on the grounds that "it is completely false and is rejected by Mr. Latham.", Pursuant to Section 120.57(1)(b)10, Florida Statutes, the grounds for an agency's lawful rejection of a Hearing Officer's finding of fact are much narrower. Our review of the record reveals that there is competent substantial evidence to support Finding of Fact 22. [T.37-39,4445] Therefore, Respondent's Exception Number 15 is denied.

      
      

   8. Exception Number 16 is directed at Finding of Fact 23. Respondent does not give any legal basis for rejecting this finding of fact, but instead, attempts to supplement the Hearing Officer's finding of fact with additional facts concerning Ms. Billingslea's alleged pattern of filing similar complaints. Additional fact-finding by the Commission is not permitted at this juncture in the proceedings, and there is competent substantial evidence to support Finding of Fact 23. [T.38-39] Accordingly, Respondent's Exception Number 16 is denied.

      
      

   9. Although unnumbered, Respondent's next exception is directed to Finding of Fact 26. Stating that he "conditionally accepts Finding of Fact number 26," and that "the complainant's statements are contradicted by Chairman Wolson," it appears that the Respondent is suggesting that the finding is somehow suspect. Nonetheless, our review of the record reveals competent substantial evidence to support Finding of Fact 26 [T.4243,95], and the Respondent's unnumbered exception is denied.

      
      

   10. Next, in his Exception Number 17, the Respondent excepts to Finding of Fact 28, claiming that it is "irrelevant to the allegation of sexual harassment" and that it "produces no competent substantial evidence to any finding of fact." As we have stated previously, the weight assigned to the evidence is within the Hearing Officer's province. Moreover, our review of the record reveals that Finding of Fact 28 is supported by competent substantial evidence. [T.97- 98,111,114,270] Therefore, on this basis, Respondent's Exception Number 17 is denied.

       
       

   11. In Exception Number 18, the Respondent excepts to Finding of Fact 29 wherein he writes that the Hearing Officer

       ignored certain evidence favorable to the Respondent, and that her failure to weigh the evidence of the complete record is "unreasonable and makes a finding of competent substantial evidence incredible." The challenged finding concerns the Respondent's assertion that Ms. Billingslea had been sexually harassing him. The Hearing Officer fulfilled her role as it is described in Heifetz, supra, and its progeny. Moreover, the record reveals competent substantial evidence to support Finding of Fact 29 [T.98-99; Advocate's Exhibit 3, p. 66, 120], thus, Respondent's Exception Number 18 is denied.

       
       

   12. In his Exception Number 19, the Respondent excepts to Finding of Fact 30, arguing that it does not go to competent substantial evidence and that it is irrelevant. Notwithstanding, our review of the record discloses competent substantial evidence to support Finding of Fact 30 [T.138; Advocate's Exhibit 4, p.

       94-95], and on that basis, Respondent's exception is denied.

       
       

   13. In challenging Finding of Fact 32, Respondent's Exception Number 20 attempts to put a different "spin" on the evidence as found by the Hearing Officer. We are neither permitted nor inclined to join Respondent in reweighing the evidence to reach a result different than that found by the Hearing Officer. There being competent substantial evidence to support Finding of Fact 32 [T.123-125], Respondent's Exception Number 20 is denied.

       
       

   14. Similarly, Respondent's Exception Number 21 takes issue with Finding of Fact 33, where the Hearing Officer found that the Respondent knew it was wrong for a supervisor to invite a subordinate employee into a sexual or romantic relationship. Because there is competent substantial evidence to support this finding of fact [Advocate's Exhibit 4, p. 37], Respondent's Exception Number 21 is denied.

       
       

   15. In his last exception to a finding of fact, the Respondent excepts to Finding of Fact 34. The evidentiary basis for this finding of fact appears to be the Joint Prehearing Stipulation, as modified at hearing [T.5], wherein the parties stipulated: "Since she has been at the Parole Commission, Ms. Billingslea has never received formal discipline relative to any fact or issue in this case." Notwithstanding, the Respondent now attempts to supplement this finding with additional evidence contradicting the Hearing Officer's finding. Because there is no legal basis to consider additional evidence at this time, Respondent's Exception Number 22 is denied.

       
       

   16. In Exception Number 23, the Respondent excepts to Conclusion of Law 36, arguing that sexual harassment alone is not a violation of Chapter 112, Part III, Florida Statutes, and is an

       overbroad application of legislative intent. As support for his argument, the Respondent miss cites Blackburn v. Commission on Ethics, 589 So.2d 431 (Fla. 1st DCA 1991). We disagree. As correctly stated by the Advocate in her Proposed Recommended Order, infliction of sexually charged remarks, gestures, and actions on subordinate employees has supported findings of violations of Section 112.313(6), Florida Statutes, in a number of cases before this Commission. In re Lawrence R. Hawkins, (Final Order No. COE 95-28, entered December 5, 1995); In re Alfred Welch, 14 F.A.L.R. 4274 (1992); In re E. "Walt" Pellicer, 9 F.A.L.R. 4387 (1987); In re L. H. Lancaster, 5 F.A.L.R. 1567-A

       (1983); and In re Raymond Bruner, 2 F.A.L.R. 1034 (1980). Moreover, in Garner v. Florida Commission on Ethics, 415 So.2d 67 (Fla. 1st DCA 1982), the court specifically considered and rejected that respondent's contention that Section 112.313(6), Florida Statutes, was unconstitutionally vague, where he was alleged to have violated Section 112.313(6) by sexually harassing two subordinate female employees. We therefore deny Respondent's Exception Number 23.

   17. Next, the Respondent excepts to Conclusion of Law 37, arguing that the standard of proof that should have been applied to him was the "clear and convincing evidence" standard rather than the "preponderance of the evidence" standard generally used in ethics complaint proceedings. It is the Respondent's contention that since the "clear and convincing evidence" standard is applicable in judicial discipline proceedings and in license revocation proceedings, he deserved no less. He advanced a similar argument in his Proposed Recommended Order, which was evidently rejected by the Hearing Officer. We find no error in the Hearing Officer's application of the "preponderance of the evidence" standard. This is the proper standard of proof applicable to proceedings such as these and is consistent with our precedent. Accordingly, Respondent's Exception Number 24 is denied.

       
       

   18. In his Exception Number 25, Respondent excepts to the Recommended Order's Conclusion of Law 38. This paragraph merely recites the statutory language contained in Section 112.313(6), Florida Statutes. Nonetheless, it appears that the Respondent is suggesting that sexual harassment alone does not constitute an abuse of office under Section 112.313(6), Florida Statutes. We reject this contention. As even the Respondent's own attorney noted in his Proposed Recommended Order (paragraph 65):

       
       

       Section 112.313(6), Fla. Stat., includes within its proscriptions sexual harassment

       of an employee or an attempt to obtain sexual favors from a subordinate employee. Garner v. Commission on Ethics, 415 So.2d 68

       (Fla. 1st DCA 1982); See also Commission on Ethics v. Lancaster, 421 So.2d 711

       (Fla. 1st DCA 1982) and Commission on Ethics

       v. Bruner, 384 So.2d 1339 (Fla. 1st DCA 1980). Determinations of whether a public official's conduct of a sexual nature is violative of Section 112.313(6), Fla. Stat., is whether such conduct was done for the purpose of seeking his own sexual gratification. In re Lawrence R. Hawkins, Case No. 94-4715EC (DOAH Recommended Order, September 28, 1995); In re Alfred Welch, 14 FALR 4274 (Ethics 1992); In

       re E. Walt Pellicer, 9 FALR 4387 (Ethics 1987); In re L. H. Lancaster, 5 FALR 1567-A (Ethics 1983); and In re Raymond Bruner, 2 FALR 1034

       (Ethics 1980).

       
       

       Because we perceive no error on the part of the Hearing Officer in her application of Section 112.313(6), Florida Statutes, to the facts she found, Respondent's Exception Number 25 is denied.

       
       

   19. Next, Respondent excepts to Conclusion of Law 39, wherein the Hearing Officer quoted the statutory definition of "corruptly." In this exception, numbered 26, the Respondent apparently contends that the statutory definition of "corruptly" is unconstitutionally vague. As stated previously, a similar argument was considered and rejected in Garner v. Florida Commission on Ethics, supra. We see no constitutional infirmities in Section 112.312(9), Florida Statutes, or its application in the proceeding before us. Therefore, Respondent's Exception Number 26 is denied.

       
       

   20. In his Exception Number 27, directed at Conclusion of Law 40, the Respondent is apparently arguing that the elements of proving a violation of Section 112.313(6) are unconstitutionally vague. We view the holding in Garner v. Florida Commission on Ethics, supra, as dispositive of this issue and, therefore, deny Respondent's Exception Number 27.

       
       

   21. In Exception Number 28, which is directed at Conclusion of Law 41, the Respondent attempts to distinguish the facts in his case from other proceedings where the public officer faced similar charges alleging a violation of Section 112.313(6), Florida Statutes. While the Respondent's behavior may have been more subtle and less egregious than other respondents who have been before us, the Hearing Officer nonetheless concluded as ultimate findings that the Respondent attempted to use his official position as a Florida Parole Commissioner and supervisor to Ms. Billingslea to make sexually charged remarks to her for his own sexual gratification, and that he corruptly used his

       position to attempt to gain sexual favors from her. Because the Hearing Officer's ultimate findings of fact are so closely tied to the credibility determinations she made, and because the underlying basis for those factual findings is supported by competent substantial evidence in the record, we find no error in Conclusion of Law 41. Respondent's Exception Number 28 is denied.

       
       

   22. The next exception takes issue with Conclusion of Law 42, where the Hearing Officer concluded that the Respondent attempted to use his position to make sexually charged remarks to Ms. Billingslea for his own sexual gratification. The Respondent argues that the record contains no such remarks made by him and that the allegation itself is vague and speculative. The remainder of Exception Number 29 is an effort on the part of the Respondent to have us reweigh the evidence in order to reach a contrary conclusion to that reached by the Hearing Officer. In denying this exception, we note that the Hearing Officer's findings of fact clearly detail the type and tenor of Respondent's comments to his secretary. Moreover, applying those facts to the law, the Hearing Officer concluded that the Respondent's actions violated Section 112.313(6), Florida Statutes. Because we find no error in the Hearing Officer's legal conclusion as excepted to by Respondent, his Exception Number 29 is denied.

       
       

   23. Respondent's Exception Number 30 is directed at Conclusion of Law 43' wherein the Hearing Officer concludes that the Respondent violated Section 112.313(6), Florida Statutes. The Respondent contends that the acts described in the complaint and the findings of fact made by the Hearing Officer do not

       constitute an abuse of office. Respondent also suggests that the Commission reject the Hearing Officer's conclusions of law as being findings of fact labeled as conclusions of law. We were reversed in Goin v. Commission on Ethics, 658 So.2d 1131 (Fla.

       1st DCA 1995), for doing precisely what Respondent is urging us to do. As the Goin court noted, the question of whether the facts, as found in the recommended order, constitute a violation of a rule or statute, is a question of ultimate fact which the agency may not reject without adequate explanation. Id, at 1138. Here, where the Hearing Officer's findings of fact are supported by competent substantial evidence, and where she has, in our view, correctly applied the law to those facts, we are bound by law to adopt the Hearing Officer's recommendation as our own.

       Accordingly, Respondent's Exception Number 30 is denied.

       
       

   24. In his last exception, Number 31, the Respondent excepts to the Hearing Officer's recommended penalty as being disproportionate to the actual conduct at issue. The Hearing Officer recommended a civil penalty of $4,000, as well as public

censure and reprimand. In that the penalty the Hearing Officer recommended is within the range of penalties provided for in Section 112.317, Florida Statutes, Respondent's Exception 31 is denied.

FINDINGS OF FACT

The Findings of Fact set forth in the Recommended 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.

   
   

2. Accordingly, the Commission on Ethics concludes that the Respondent, as a member of the Florida Parole Commission, violated Section 112.313(6), Florida Statutes, by engaging in unwanted sexually or romantically oriented behavior toward a subordinate female employee.

RECOMMENDED PENALTY

We have reviewed the entire record and are familiar with our precedents involving cases of a similar nature. Based upon that review, we believe that there are facts present which support reducing the amount of the recommended civil penalty from $4000 to $2500. This amount is more consistent with penalties we have recommended in other cases and is appropriate to the nature and extent of the Respondent's actions. Therefore, to that limited extent, the Hearing Officer's penalty recommendation is modified for Respondent's violation of Section 112.313(6), Florida Statutes.

In consideration of the foregoing and pursuant to Sections

112.317 and 112.324, Florida Statutes, the Commission recommends that the Governor impose a civil penalty upon the Respondent, Gary D. Latham, in the amount of $2500, and that he receive a public censure and reprimand.

ORDERED by the State of Florida Commission on Ethics meeting in public session on Thursday, March 7, 1996.

March 12, 1996

William J. Rish Chairman

NOTICE OF RIGHT TO JUDICIAL REVIEW

PARTY WHO IS ADVERSELY AFFECTED BY THIS FINAL ORDER IS ENTITLED TO JUDICIAL REVIEW PURSUANT TO SECTION 120.68, FLORIDA STATUTES. REVIEW PROCEEDINGS ARE GOVERNED BY THE FLORIDA RULES OF APPELLATE PROCEDURE. SUCH PROCEEDINGS ARE COMMENCED BY FILING ONE COPY OF A NOTICE OF APPEAL WITH THE AGENCY CLERK OF THE DIVISION OF ADMINISTRATIVE HEARINGS AND A SECOND COPY, ACCOMPANIED BY FILING FEES PRESCRIBED BY LAW, WITH THE DISTRICT COURT OF APPEAL, FIRST DISTRICT, OR WITH THE DISTRICT COURT OF APPEAL IN THE APPELLATE DISTRICT WHERE THE PARTY RESIDES. THE NOTICE OF APPEAL MUST BE FILED WITHIN 30 DAYS OF RENDITION OF THE ORDER TO BE REVIEWED.

NOTICE OF ADMINISTRATIVE APPEAL MUST BE FILED WITHIN 30 DAYS OF THE DATE THIS ORDER IS RENDERED.

cc: Mr. Gary D. Latham, Respondent

Ms. Virlindia Doss, Commission's Advocate Division of Administrative Hearings

Ms. Deborah K. Kearney, Complainant

================================================================= AGENCY FINAL ORDER APPEALED AND REMANDED TO DOAH.

DOAH CASE NO. 97-2954EC ESTABLISHED

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

Docket for Case No: 95-003717EC

Orders for Case No: 95-003717EC