)
RECOMMENDED ORDER
Pursuant to notice, the Division of Administrative Hearings, by its duly designated Administrative Law Judge, Suzanne F. Hood, held a formal hearing in the above-styled case on November 22, 1996, in Eustis, Florida.
APPEARANCES
For Petitioner: Marie A. Mattox, Esquire
822 North Monroe Street Tallahassee, Florida 32303
For Respondent: Patrick A. Loebig, Esquire
Brian F. McGrail, Esquire Post Office Box 6668
Tallahassee, Florida 32314-6668
STATEMENT OF THE ISSUES
The issues are whether the Respondent Department of Revenue, properly determined that Petitioner Robert Swiger's candidacy for property appraiser in Lake County, Florida would be a conflict of interest or an activity which would interfere with his state employment as an Appraiser II in the Property Tax Administration
Program, and if so, whether he became a candidate in violation of Section 110.233(4)(a), Florida Statutes, when he filed a form appointing a campaign treasurer and designating a depository.
PRELIMINARY STATEMENT
On or about July 12, 1995, Petitioner Robert Swiger (Petitioner) submitted a written request to Respondent Department of Revenue (Respondent) for authorization to seek political office as property appraiser of Lake County, Florida. Respondent denied Petitioner’s request by letter dated July 27, 1995.
On August 18, 1996, Petitioner filed an Appeal of Final Agency Action with Respondent requesting a formal hearing.
Respondent forwarded this request to the Division of Administrative Hearings on September 1, 1995.
On September 27, 1995, Respondent filed a Motion to Relinquish Jurisdiction and/or, in the alternative, Motion to Dismiss. The undersigned heard oral argument on this motion on November 13, 1995. Petitioner filed a Motion for Leave to File Amended Appeal of Agency Action on November 27, 1995. The undersigned entered an order dated December 4, 1995 denying both motions and scheduling this matter for hearing on February 8, 1996.
On January 19, 1996, Petitioner filed a Motion to Continue. The undersigned granted this motion and rescheduled the hearing for April 19, 1996.
On February 12, 1996, the parties filed an Agreed Motion to Hold Case in Abeyance. An order dated February 13, 1996 placed
the case in abeyance until after the primary election in Lake County, Florida.
On October 23, 1996, the undersigned entered an order scheduling this matter for final hearing on November 22, 1996.
At the final hearing, Petitioner offered 18 exhibits which were received into evidence. The Respondent offered 22 exhibits which were received into evidence.
Petitioner testified on his own behalf and presented the testimony of seven other witnesses. Respondent presented the testimony of six witnesses.
On December 11, 1996, the undersigned entered an order granting Petitioner’s Motion for Enlargement of Time to File Recommended Order. A transcript of the final hearing was filed with the Division of Administrative Hearings on December 16, 1996. The parties filed their proposed findings of fact and conclusions of law on January 6, 1997.
FINDINGS OF FACT
Respondent employed Petitioner in the Property Tax Administration Program as an Appraiser II beginning September 1990. Petitioner worked in Respondent’s regional office located in Leesburg, Lake County, Florida.
Petitioner wrote a letter dated June 7, 1995 to John Everton, Petitioner’s Division Director (now Program Director of Respondent’s Property Tax Administration Program). In the
letter, Petitioner requested permission to seek the elective office of Lake County property appraiser while continuing his state employment.
By letter dated June 22, 1995, Mr. Everton advised Petitioner that he could not seek the office of property appraiser while employed as an Appraiser II in the Property Tax Administration Program. The letter directed Petitioner to offer his resignation before he pre-filed with the supervisor of election if he decided to pursue his candidacy.
On July 12, 1995 Petitioner wrote to L. H. Fuchs, Respondent’s Executive Director, requesting permission to seek the Lake County property appraiser's office. Petitioner wanted to continue working for Respondent until July of 1996 when he would either take a leave of absence or resign when he “qualified” to be on the ballot. Mr. Fuchs received the Petitioner's request on July 19, 1995.
In a letter dated July 27, 1995 Mr. Fuchs responded to Petitioner's request by stating:
It is the Department's position that your campaign for property appraiser would negatively effect:
your ability to perform your job responsibilities which include conducting independent evaluation [sic] of local tax roles; and
the agency's efforts to maintain its independence from the local administration of ad valorem taxes.
The Executive Director's response went on to state:
In your letter to me, you request authorization to continue working for the Department until July 1996, and then, either to take leave of absence without pay or to resign when you qualify to be on the ballot. However, it is the Department's position that your campaign activities commence at the time you pre-file your intent to run for office as required by local rules, because it is at that time that your personal interest in pursuing the office of the property appraiser conflicts with the Department's interest in maintaining complete independence from the local administration of ad valorem taxes.
Therefore, your request for approval to run for public office while continuing your employment with the Department is again hereby denied. As instructed by your Division Director, you must resign from the Department prior to commencing your campaign by performing the pre-filing requirement.
Failure to do so shall result in disciplinary action to dismiss you from your position in accordance with the Department’s disciplinary standards and procedures, and rule chapter 60K-9, F.A.C., on the grounds that you are in violation of the Department’s Code of Conduct, section 110.223, Florida Statutes, and rule 60K-13.002(3), F.A.C.
Mr. Fuchs concluded that his decision was final agency action which Petitioner could appeal pursuant to Section 120.57, Florida Statutes.
By letter dated August 16, 1995, Petitioner’s counsel requested clarification of Respondent’s position as set forth in the Executive Director's letter of July 27, 1995.
On August 18, 1995, Petitioner filed his request for formal hearing with Respondent. Respondent forwarded this request to the Division of Administrative Hearings on September
1, 1995.
On September 8, 1995, Respondent's Deputy General Counsel responded to the request of Petitioner’s counsel for clarification of Respondent’s July 27, 1995 denial letter. This letter sets forth the factual and legal basis for Respondent’s conclusions that: (1) Petitioner’s candidacy would involve an interest which conflicts or activity which interferes with his state employment; and (2) Petitioner would have to resign his state employment before filing his “Appointment of Campaign Treasurer and Designation of Campaign Depository, Form DS-DE 9” (Form DS-DE 9).
On September 11, 1995, Petitioner filed his Form DS-DE 9 as required by Section 106.021(1), Florida Statutes, with the Supervisor of Elections for Lake County, Florida. Respondent received proof of such appointment and designation on September 13, 1995.
On September 13, 1995, Respondent notified Petitioner that he was dismissed under the extraordinary circumstances provisions of Rule 60K-9.0046, Florida Administrative Code. Respondent dismissed Petitioner because he violated Respondent’s Disciplinary Standard Number 14, Insubordination, and Disciplinary Standard Number 29, Violation of the provisions of law or Department of Revenue rules or policies. Respondent took the position that: (1) Petitioner was insubordinate when he disregarded Respondent’s denial letters and proceeded to file his
Form DS-DE 9 without first resigning his state employment; and
Petitioner became a candidate in violation of Section 110.233(4), Florida Statutes, and Rule 60K-13, Florida Administrative Code, when he filed his Form DS-DE 9.
Petitioner requested a predetermination conference pursuant to Rule 60K-9.0046, Florida Administrative Code. Respondent conducted the conference on September 14, 1995 so that Petitioner’s counsel would have an opportunity to participate. After the conference, Respondent provided Petitioner with a Final Disciplinary Action letter dated September 14, 1995. This letter gave Petitioner the right to appeal the dismissal action to the Public Employees Relations Commission.
Respondent is the agency charged with enforcing and implementing the state’s taxing authority. Its regulatory authority includes regulatory oversight and the certification process of county ad valorem tax rolls and related tax administration.
County property appraisers determine the just value on each parcel of real estate and the assessment on homestead property pursuant to Sections 193.011 and 193.155, Florida Statutes. Respondent has the duty to insure that each county property appraiser assesses all properties at just value, with equity and uniformity. The working relationship between Respondent’s staff and the county property appraiser and his or her staff is naturally tense. To overcome this tension,
Respondent strives to achieve statutory compliance through cooperation with the local property appraiser and his or her staff.
The primary focus of Respondent’s Property Tax Administration Program is to determine the relevant level of property assessment in each county and to quantify that assessment level as it relates to a statewide average assessment level. In order for Respondent to accomplish its mission, Respondent has to approve the tax roll and certify the assessment level in each county annually. The Department of Education equalizes school funding and disperses general revenue funds to the county school districts based on their relative assessment level. Each county’s relative ranking dictates the amount that it must levy in county school district taxes. Accordingly, Respondent acting through its appraisers must remain impartial in evaluating the tax rolls in all counties.
The position of Appraiser II entails the following duties and responsibilities:
Assists county property appraiser and employees in the county appraiser's office in property appraisal techniques to arrive at estimated value conclusions of complex commercial, residential properties, and personal property.
Administers policies and procedures pertaining to appraisal of real and personal properties set forth in the Florida Statutes, guidelines and other departmental rules and regulations.
Consults with all levels of governmental officials, property owners and private
appraisers on problems relative to the appraisal of real and personal property in compliance with existing Florida Statutes and guidelines.
Investigates and reports on conduct and performance of all county officials involved in ad valorem tax activities.
Investigates taxpayers complaints.
Applies the appraisal process as defined by the American Institute of Real Estate Appraisers to arrive at an estimate of value for all types of property. This includes using existing Department of Revenue Cost Manual and other cost manuals as required to arrive at an estimate of value by the cost approach in compliance with existing Florida Statutes and guideline.
Performs related duties as required.
As an Appraiser II, Petitioner did not routinely perform all of the duties described in his job description. He spent the majority of his time performing appraisal studies, sales ratio studies, and final reviews in the counties surrounding Lake County.
Petitioner's job duties and responsibilities entailed safeguarding certain confidential tax information pursuant to:
Department Directive 0101.10; (b) Sections 6103 and 7213, Internal Revenue Code (IRC); and (c) various internal security procedures and policies for safeguarding confidential information and information sources.
Confidential appraisal information generated by county property appraisers is available to Respondent’s appraisers within a particular region. Likewise, confidential appraisal information generated by Respondent’s appraisers for a particular county in that region is available to all of Respondent’s appraisers within that region.
Appraisal studies generated by Respondent’s appraisers together with all supporting documents remain confidential and
unavailable to the county property appraisers until the year-end review. During the final review, Respondent’s appraisers and the county property appraisers discuss any discrepancies between their work. The findings of the studies do not become public until the final review process is complete.
Petitioner claims that he did not have a computer terminal or the necessary computer skills to personally access confidential information which was stored electronically. However, he could request computer printouts from Respondent’s offices in Tallahassee as well as Respondent’s Leesburg office.
Printouts for every piece of property which was a sample in the 1995 Lake County in-depth study was stored in the Leesburg office. That study was complete in June of 1995 before Petitioner requested permission from Respondent to run for office. Respondent began gathering confidential information for the 1997 Lake County in-depth study in October of 1996 before the November general election.
Respondent’s appraisers often discuss problems in their work and share information informally. Periodically they engage in a “peer review” of each other’s appraisal work. Nothing prohibited Petitioner from gaining access to confidential information contained within a Lake County in-depth study even though he may not have done the appraisal work in that county. Petitioner had access to that information before it was available to the Lake County property appraiser.
The incumbent county property appraiser knew that Petitioner had access to confidential information while he was employed by the state. During the campaign, the incumbent believed that Petitioner continued to receive inside information from Respondent’s staff. The local property appraiser’s perception was unfounded but it caused him to believe that Petitioner had an unfair political advantage. The erroneous perception caused conflict between the incumbent and Respondent. This conflict would have been much worse if Petitioner had run for county property appraiser while continuing his state employment. Even if Petitioner did not seek out confidential information or use it in his political campaign, the perception that it might be available to him jeopardized Respondent’s relationship of cooperation and trust with the incumbent Lake County property appraiser.
Respondent does not have a set policy as to whether its appraisers can perform appraisal studies or in-depth studies in the county of their residence. Petitioner did not want to perform appraisals in Lake County because he knew from the beginning that he wanted to run for the office of county property appraiser. He thought he could avoid the appearance of impropriety as long as he did not perform appraisals in Lake County.
Respondent never required Petitioner to perform an appraisal study in Lake County. However, Respondent assigned
Petitioner on occasion to assist Respondent in completing sales ratio studies by verifying randomly selected sales of real property in Lake County. In verifying the sale of a piece of real property, Petitioner was responsible for determining if the sale was made at arm’s length. This involved making a field inspection to compare the property appraiser’s records to the actual property. If Petitioner could not confirm the sale price with the property owner by mail, he would have to contact the owner or seller by phone or in person. When Petitioner verified sales of real property in Lake County, he presented himself to the public as Respondent’s representative.
If Petitioner determined that the county property appraiser’s records did not accurately reflect the sale price, his work could result in a change to the county property appraiser’s numbers to reflect the correct sales price. If Petitioner determined that a sale was not conducted at arm’s length, Petitioner could exclude it from Respondent’s sales ratio study. Thus, Petitioner’s work had a direct impact on Respondent’s decisions relative to the Lake County tax roll.
Petitioner performed minimal work in and for Lake County. However, at any time, Respondent could have made a legitimate business decision, including budgetary considerations, which would have required Petitioner to perform job assignments in any county in the Leesburg region, including Lake County. For example, Petitioner provided aid and assistance in Respondent’s
Lake City regional office during his employment in the Leesburg regional office.
If Petitioner had continued to work in surrounding counties while running for office against the Lake County property appraiser, the public would have had difficulty distinguishing between campaign statements that represented the candidate’s personal opinions and statements that appeared to represent Respondent’s official position. This was true in the campaign even though Petitioner ran as former state employee. Such conflicts severely compromise the public’s perception of Respondent’s independence in local tax administration matters in all the counties under its jurisdiction. Petitioner’s continued state employment during the campaign would have placed Respondent in the middle of a political contest over which it had no control and in which it had a duty to remain neutral. It was difficult enough for Respondent to remain neutral with a former employee seeking elective office.
Appraisal studies for one county can affect the appraisal assessments in another county. For instance, the appraisal methodology used by Respondent in Dixie County has been introduced into litigation presently occurring in Levy County.
In that case, the neighboring county’s methodology for applying and calculating the “base rate” (a unit of measurement per square foot for dollar valuation of structures) has become an issue.
Respondent develops a "systematic base rate" for use in
the appraisal system from data gathered from a particular region. Data gathered for the Leesburg regional office included data from Lake, Brevard, Indian River, Flagler, Polk, Sumter, Orange, Marion, Manatee, Volusia, Seminole, Citrus, Hillsborough, Hernando, and Pasco Counties. Respondent uses this data to determine what the appropriate base rate would be for any one of those counties. Thus, Petitioner’s appraisal work affected the appraisal assessments in Lake County even though Respondent did not assign him to do appraisal work that county.
When a county’s tax role cannot be reconciled within 90 percent of Respondent’s assessment values, Respondent issues review notices or administrative orders directing compliance. Such disputes can eventually result in litigation with Respondent and the local property appraiser as adverse parties. In that circumstance Respondent’s appraiser must defend his work product in court.
Respondent is a party defendant to all lawsuits in which a taxpayer challenges a county property appraiser’s assessment. In these lawsuits Respondent must assist the county property appraiser and defend valuation methodologies which the county property appraiser uses as directed by Respondent.
When Respondent becomes involved in litigation, Respondent’s property appraisers are required to testify regarding their work as it relates to the subject property. The appraisers also might be required to defend their work product as
analogous appraisal methodologies and practices, even though their work was done in and for different counties from the litigating county. Such testimony would be subject to impeachment if Respondent’s appraisers make campaign statements while running for the office of county property appraiser that are contrary to Respondent’s legal position. The resulting conflicts may not become apparent until a case goes to trial years after Respondent’s appraiser participates in a political campaign.
Petitioner planned to seek the office of Lake County property appraiser for several years before he actually sought permission from his state employer. He never obtained Respondent’s permission to seek political office. He began his campaign without authorization from the Department of Management Services. Petitioner officially began his campaign for Lake County property appraiser when he filed Form DS-DE 9 with the Lake County supervisor of elections on September 11, 1995. At that time he made his intentions clear to the public.
Petitioner could not complete the process of qualifying for office and take the candidate’s loyalty oath until sometime between February and July 17, 1996. He did not want to wait that long to begin his campaign activities which included soliciting campaign funds. Petitioner felt he would be at a disadvantage in the campaign if he did not immediately begin to raise money to fund his campaign.
In the political campaign, Petitioner made statements concerning the income approach to valuing property. He characterized the use of income capitalization as valuing household or business income and not property. He also characterized the income approach to appraisal as an income tax. These characterizations were in direct conflict with Respondent’s position in a law suit filed by a cable television company against the incumbent Lake County property appraiser and Respondent over tangible personal property taxes. Petitioner’s characterizations about the income approach methodology called into question any appraisals that he conducted in any county using that methodology.
During the political campaign Petitioner also made statements concerning impact fees claiming that they have no affect on the value of real property. Petitioner’s statements on impact fees conflict with Respondent’s position on impact fees. It is foreseeable that, as a result of Petitioner’s comments, a taxpayer will litigate the issue of whether impact fees affect property value. Petitioner’s position on impact fees may adversely affect Respondent’s ability to support its position in court.
Petitioner made incorrect statements during the campaign regarding the county property appraiser’s assessed value of Lake County property. For example, he claimed that the county property appraiser had assessed the county’s property at 122
percent of its just value in 1994. This statement conflicted with Respondent’s determination that Lake County’s 1994 level of assessment was 93.4 percent.
When Petitioner worked for Respondent, he was a Certified Florida Evaluator (CFE). After the termination of his employment, Petitioner was no longer entitled to claim that designation. Nevertheless, Petitioner continued to identify himself as a CFE during the campaign. This campaign tactic contributed to the perception of the county property appraiser that Respondent was acting with Respondent’s sanction.
County property appraisers know how Respondent’s appraisers in other counties apply Respondent’s policy. Likewise, Respondent’s appraisers know how their counterparts assigned to neighboring counties apply appraisal principles in Respondent’s appraisal studies. The county property appraisers would become immediately distrustful and suspicious of Respondent’s motives if one of Respondent’s appraisers were to seek the office of county property appraiser. They would assume that Respondent was attempting to call their appraisal
methodologies into question. Such a campaign would be disruptive to the tax administration process. It would destroy the atmosphere of trust and confidence that must exist between Respondent and the county property appraisers.
Even though Petitioner was a former employee during the campaign at issue here, Petitioner’s candidacy aroused suspicion
and distrust on the part of the county property appraiser towards Respondent's tax administration staff and its appraisers. The incumbent and his staff were suspicious that Respondent was promoting Petitioner’s campaign in order to foster its own ideas and judgments concerning appraisal processes and techniques.
They were concerned that Respondent would take punitive measures against them during the next audit.
Respondent must maintain a neutral position in any political campaign. Respondent certainly cannot be expected to grant its appraiser permission to seek an office but retain the right to oversee the appraiser’s activities and to censure his or her comments. Thus, Respondent properly follows a policy of not approving its property appraisers' candidacies for the office of county property appraiser.
The candidacy for the office of county property appraiser by a still-employed agency appraiser presents a real conflict of interest between Petitioner's state employment and Respondent's statutory mission. The campaign at issue here is the perfect example of how the platform or public statements of a candidate can conflict with Respondent's administration and interpretation of the tax laws under Chapters 192-197, Florida Statutes. If Petitioner had continued his state employment, his campaign would have impaired Respondent’s reputation for impartiality and independent judgment in appraisal work and administration of the tax laws among all of the counties under
its jurisdiction.
On September 3, 1996, Petitioner was defeated in the Republican Primary for the office of Lake County Property Appraiser.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this proceeding. Section 120.57(1), Florida Statutes.
Respondent argues that Petitioner has no standing to challenge the denial of his request for authorization to seek elective office. According to Respondent, Petitioner can no longer prove that he is substantially affected by this decision because he disobeyed direct orders and ran for the office of county property appraiser. Respondent also claims that the case is moot because Petitioner failed to file an appeal with the Public Employees Relations Commission after Respondent terminated him.
Respondent terminated Petitioner’s employment for insubordination and for violating provisions of law or Respondent’s rules or policies. Respondent’s Standards for Disciplinary Action provide as follows in pertinent part:
14. Insubordination
An employee’s unwillingness or deliberate refusal to comply with a direct order or any established work assignment of the immediate or higher-level supervisor, provided it is not contrary to statute, regulation, or creates an unsafe working condition.
Insubordination also includes an expressed refusal to obey a proper order as well as willful or direct failure to do an assigned job or to follow orders. Gross insubordination or willful neglect of duties is defined as a constant or continuing intentional refusal to obey a direct order, reasonable in nature, and given by and with proper authority. (Major)
First Occurrence Written Reprimand to
Dismissal
Second Occurrence Suspension to Dismissal Third Occurrence Dismissal
29. Violation of the provisions of law or Department of Revenue rules or policies
The failure to abide by Department rules, policies, division directives or statutes governing employment by the State of Florida. This may include, but is not limited to, divulging confidential information, moonlighting without permission or management knowledge, misuse of position, giving or accepting a bribe, discrimination in employment, illegal campaigning, or actual knowledge of and failure to take corrective action or report sexual harassment. (Major) (Emphasis added)
First Occurrence Oral Reprimand to
Dismissal
Second Occurrence Written Reprimand to
Dismissal
Third Occurrence 3 Workday Suspension to
Dismissal Fourth Occurrence Dismissal
Respondent’s argument that Petitioner has no standing and that the case is moot is without merit. Rule 60K- 4.010(3)(b), Florida Administrative Code, provides in part as follows:
An employee who becomes ineligible for continued employment pursuant to Section 110.233(4), Florida Statutes, shall be entitled to review in accordance with Section 120.57, Florida Statutes, or Section 60K- 13.032, F.A.C. If the office is a local public office, the employee shall be notified in writing by certified mail, return receipt requested, and such notification shall include a statement as to the employee’s right to review under Chapter 60K-13, F.A.C.
Rule 60K-9.005(4), Florida Administrative Code, states that:
(4) An employee shall be deemed to have resigned from the Career Service and shall not have appeal rights to the Public Employees Relations Commission if the employee seeks or holds office contrary to or without complying with the provisions of Section 110.233(4), Florida Statutes.
Rule 60K-13.0032, Florida Administrative Code, contains the following:
(1) If the agency head denies an employee’s request submitted in accordance with this chapter, the employee shall have the right to a Section 120.57, Florida Statutes, proceeding . . . .
* * *
In proceedings pursuant to this section, the employee shall bear the burden of establishing that his/her candidacy or the duties of the local public office will not involve a conflict of interest or interfere with his/her state employment. If the agency head or Secretary of Management Services determines that approval was withheld unreasonably by the agency or Department, respectively, the employee may become a candidate for the requested local public office or continue to hold the public office without terminating his/her state employment.
An agency or an employee who is adversely affected by final agency action, shall be entitled to judicial review pursuant to Section 120.68, Florida Statutes. The employee shall not have the right to appeal such action to the Public Employees Relations Commission.
Rule 60K-13.004, Florida Administrative Code, states as follows:
An employee who qualifies as a candidate for or holds public office without obtaining prior approval according to this chapter shall be ineligible for continued state employment and shall be deemed to have
resigned without the right to appeal to the Public Employees Relations Commission. In addition, the employee may be subject to penalties set forth in Section 110.127, Florida Statutes.
In Department of Admin. V. Nelson, 424 So.2d 852 (Fla. 1st DCA 1982) (Nelson I) a firefighter for the Department of Agriculture and Consumer Services, Division of Forestry, sent a letter to his supervisor requesting permission to become a candidate for the school board less than two weeks before the last day to qualify. The Division of Forestry orally denied the firefighter’s request on two occasions. Nevertheless, the firefighter took affirmative steps to qualify for office. The Division of Forestry then denied the firefighter’s request in writing. The agency attempted to persuade the firefighter to withdraw from the race. When the firefighter refused to withdraw, the agency sent him a letter stating that he was deemed to have resigned pursuant to Section 110.233(4)(a), Florida Statutes, and Rule 22A-13.04, Florida Administrative Code, (currently Rule 60K-13.004, Florida Administrative Code). This letter advised the firefighter that he was ineligible to continue his state employment but could request an administrative hearing pursuant to Section 120.57(1), Florida Statutes. Nelson I, at 855.
The court in Nelson I states as follows:
the critical issue arising under section 110.233(4)9a)—whether an employee’s candidacy or holding of local public office involves an
“interest which conflicts or activity which interferes” with state employment—should if possible be determined prospectively.
* * *
DOA’s rules provide, and were required by statute to provide, the clear and only point of entry to proceedings for determining the critical point in issue, whether authorization to run should be given.
The hearing officer correctly points out that DOA’s rules, envisioning as they do prospective decisions by the agency and DOA allowing an employee to run for or accept public office, do not in terms provide a forum for determining the potential issue of whether the employee having been denied authorization to become a candidate, nevertheless did so. If that is a disputed fact (it is not disputed by Nelson), we know of no reason why agency section 120.57 processes, subject to section 120.68 judicial review, cannot fairly determine the issue in determining the substantial interest of the employee.
Nelson I, at 858-859 (citations omitted).
In Nelson v. Department of Agriculture, Etc., 424 So. 2d 860 (Fla. 1st DCA 1982) (Nelson II), the court determined that the firefighter was entitled to an administrative remedy even though he qualified as a candidate before he requested the administrative hearing. The firefighter did not lose his right to administrative proceedings just because they were not “completed, or begun, by the dead-line for qualifying as a candidate. . . .” Nelson II, at 862. The court in Nelson II states as follows:
Nelson was entitled to qualify as a candidate, to take his opportunity to change the agency’s mind in section 120.57 proceedings, and to assume the risk of failure.
Thus we find that the hearing officer erred in concluding that Nelson, by qualifying as a
candidate in the face of Agriculture’s free- form refusal to authorize it, either waived entitlement to APA remedies to obtain that authorization or rendered those remedies “moot,” as the hearing officer put it . . . .
* * *
We find, to the contrary, that Agriculture offered Nelson unrestricted APA proceedings to determine retrospectively whether authorization for his candidacy should have been granted; that Nelson understood the offer to be as comprehensive as it was, and he under took to show that there was neither “conflict” nor “interference” sufficient for Agriculture to deny him authorization to run
. . . .
Nelson II, at 862.
In the instant case, Petitioner did not take any affirmative steps to become a candidate until after he requested a formal hearing to contest the denial of his request to run for office. He does not lose standing merely because the administrative proceeding to determine the critical conflict issue was not complete by the time he filed his DS-DE 9. The issues do not become moot until there has been a determination whether his candidacy involved a conflict of interest or an activity that interfered with his state employment.
The instant case is distinguishable from Floyd L. Hylton v. Department of Revenue, DOAH Case No. 96-1973, where the agency gave its employee permission to run for elective office on the day before the last day to qualify. Mr. Hylton elected not to exercise that option. He did not lose his job. At the time of the formal hearing, it was impossible to grant Mr. Hylton any
effectual relief. Montgomery v. Department of Health and Rehabilitative Services, 468 So.2d 941, 943 (Fla. 1st DCA 1993).
In the instant case, Respondent should have given Petitioner permission to seek office unless his candidacy involved a conflict of interest or an activity that interfered with his state employment. Section 110.233(4)(a), Florida Statutes; Chapter 60K-13.0032, Florida Administrative Code; Rule 60K-4.010(3), Florida Administrative Code. If there was no conflict then Respondent’s denial of authorization to seek office was unreasonable.
The Division of Administrative Hearings does not have jurisdiction to determine whether Petitioner was properly terminated for insubordination. Jenkins v. Dept. of Health and Rehab. Serv., 618 So.2d 749 (Fla. 1st DCA 1993); Tomlinson v. Dept. of Health and Rehab. S., 558 So. 2d 62 (Fla. 2nd DCA 1990). However, a proceeding pursuant Section 120.57, Florida Statutes, is the exclusive remedy to determine whether he violated Section 110.233(4)(a), Florida Statutes. Nelson I, at 859; Nelson v. Florida Department of Agriculture and Consumer Services, 424 So. 2d 864 (Fla. 1st DCA 1982) (Nelson III). An employee is not entitled to appeal such action to the Public Employees Relations Commission. Rules 60K-4.010(3)(b), 60K-9.005(4), 60K-13.0032, and 60K-13.004, Florida Administrative Code.
Petitioner bears the burden of establishing by a preponderance of the evidence that his candidacy or the duties of
the local public office did not involve a conflict of interest or an activity that interfered with his state employment. Rule 60K- 13.0032(3), Florida Administrative Code. He has not met this burden.
Section 110.233(4)(a), Florida Statutes (1995), provides as follows:
As an individual, each employee retains all rights and obligations of citizenship provided in the Constitution and laws of the state and the Constitution and laws of the United States. However, no employee in the career service shall:
Hold, or be a candidate for, public office while in the employment of the state or take any active part in a political campaign while on duty or within any period of time during which the employee is expected to perform services for which he or she receives compensation from the state. However, when authorized by his or her agency head and approved by the Department of Management Services as involving no interest which conflicts or activity which interferes with his or her state employment, an employee in the career service may be a candidate for or hold local public office. The Department of Management Services shall prepare and make available to all affected personnel who make such request a definite set of rules and procedures consistent with the provisions herein.
Rule 60K-13.002, Florida Administrative Code, sets forth the following presumption:
(3) Candidacy for or holding a local public office shall be presumed to involve an interest which conflicts with an employees state employment when the campaign or the office, if elected, is likely to give rise to a situation in which regard for a private or
local interest tends to lead to a disregard of the employee’s duty as a state employee.
The preponderance of the evidence in this case fully supports a finding that Petitioner’s candidacy created a conflict with his state employment without resort to any presumption. If Petitioner had continued his state employment while campaigning, the spirit of cooperation and trust between Respondent and the county property appraisers would have been severely damaged or destroyed. This is due in part to the perception by the incumbent and his staff that Petitioner had access to confidential “inside” information. The incumbent property appraiser thought Respondent’s staff would take punitive measures during the next audit because of the heated campaign. Even as a former employee, Petitioner’s campaign placed Respondent in a compromising position.
According to the Appraiser II position description, Petitioner would be required to investigate and report on the conduct and performance of the county property appraiser’s office in the counties where he worked. Respondent could have assigned Petitioner to work in Lake County at any time.
Petitioner’s candidacy could have influenced his appraisal work in his assigned counties because “. . .the appraisal of real estate is an art, not a science.” Powell v. Kelly, 223 So. 2d 305, 309 (Fla. 1969). In turn, Petitioner’s appraisals in those counties would impact property assessments in
the entire region including Lake County.
A conflict results when an employee’s political campaign calls Respondent’s methodologies and policies into question. In the event of litigation, Respondent would be prejudiced if its appraisers could be impeached by statements they made during a campaign. During the subject campaign, Petitioner criticized the incumbent property appraiser’s work and his past tax rolls which Respondent had approved. Petitioner’s campaign statements were in conflict with Respondent’s position in one law suit and may result in additional litigation.
Petitioner asserts that he would not have made certain campaign statements or engaged in mud-slinging tactics if he had been allowed to continue his employment. However, Respondent must remain neutral and impartial at all times. The agency could not place restrictions on Petitioner’s campaign platform or censure his campaign statements. On several occasions Petitioner made statements which were erroneous and/or contradictory to Respondent’s position without realizing what he had done. Respondent could not be expected to guard against conflict it cannot control.
Respondent properly determined that Petitioner could not seek the office of county property appraiser because his candidacy involved a conflict of interest with his state employment. The next issue must also be answered in the affirmative. Petitioner became a candidate in violation of
Section 110.233(4)(a), Florida Statutes, when he filed the form DS-DE 9.
In Humphries v. Department of Highway Safety and Motor Vehicles, 400 So. 2d 1311 (Fla. 1st DCA 1981), a highway patrolman began his candidacy in violation of Section 110.233(4)(a), Florida Statutes. The court rejected the argument that his dismissal was premature because he had not yet become a candidate. Instead, the court recognized that campaign activities often pre-date qualifying by months and that Mr. Humphries was seeking public office even though he had not yet officially qualified. Humphries, at 1314.
Sections 97.021(3) and 106.011(16), Florida Statutes, state that a candidate is any person who seeks to “qualify for nomination” or “qualify for election,” or any person who appoints a treasurer and designates a primary depository. Candidates often begin their campaign by soliciting funds months before they complete the qualification process and take the candidate’s loyalty oath. In this case, Petitioner fully intended to begin raising campaign funds as soon as he filed his DS-DE 9. He became a candidate at that time.
Respondent provided Petitioner with a point of entry to a Section 120.57, Florida Statutes, proceeding pursuant to Rule 60K-13.0032(1), Florida Administrative Code. The Department of Management Services never considered the questions at issue here because Respondent did not approve Petitioner’s request to seek
elective office. See Rules 60K-13.0031(2), 60K-13.0031(3) and 60K-13.0032(2), Florida Administrative Code. Consequently, the ultimate disposition of this case resides with Respondent.
Respondent properly terminated Petitioner’s employment because there was a conflict of interest between Petitioner’s state employment and the elective office he sought and because he became a candidate without obtaining prior approval as required by Section 110.233(4)(a), Florida Statutes, and Chapter 60K-13, Florida Administrative Code. See Rule 60K-13.004, Florida Administrative.
RECOMMENDATION
Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is
Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, Florida 32399-3060
(904) 488-9675 SUNCOM 278-9675
Fax Filing (904) 921-6847
Filed with the Clerk of the Division of Administrative Hearings this 7th day of March, 1997.
Patrick A. Loebig, Esquire Brian F. McGrail, Esquire Department of Revenue
Post Office Box 6668 Tallahassee, Florida 32314-6668
Marie A. Mattox, Esquire 822 North Monroe Street Tallahassee, Florida 32303
Linda Lettera, General Counsel Department of Revenue
204 Carlton Building Tallahassee, Florida 32399-0100
Larry Fuchs, Executive Director Department of Revenue
104 Carlton Building Tallahassee, Florida 32399-0100
All parties have the right to submit written exceptions within 15 days from the date of 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 |
|---|---|
| Apr. 17, 1997 | Final Order filed. |
| Mar. 07, 1997 | Recommended Order sent out. CASE CLOSED. Hearing held 11/22/96. |
| Jan. 06, 1997 | Respondent`s Proposed Recommended Order; Disk filed. |
| Jan. 06, 1997 | (Proposed) Petitioner`s Recommended Order filed. |
| Dec. 16, 1996 | (3 Volumes) Transcript filed. |
| Dec. 11, 1996 | Order Granting Motion for Enlargement of Time to File Recommended Order sent out. (PRO`s due 1/6/97 or 10 days after filing of hearing transcript) |
| Dec. 09, 1996 | Respondent`s Objection to Petitioner`s Motion for Enlargement of Time to File Recommended Order filed. |
| Dec. 06, 1996 | (Respondent) Notice of Filing; Petitioner`s Exhibit #12 and #13 filed. |
| Nov. 25, 1996 | Letter to M. Mattox from P. Loebig Re: Facsimile on 11/20/96 filed. |
| Nov. 22, 1996 | CASE STATUS: Hearing Held. |
| Nov. 21, 1996 | Respondent`s Objections to Taken Deposition and Testimony by Telephone filed. |
| Nov. 21, 1996 | Respondent`s Motion to Quash Subpoena; and or Motion for Protective Order; Respondent`s Renewed Motion to Compel Discovery and Request for Sanctions filed. |
| Nov. 21, 1996 | Letter to SFH from Marie Mattox (RE: notification that witness, Ronnie Hawkins is on vacation) (filed via facsimile). |
| Nov. 21, 1996 | CC: Letter to Marie Mattox from Patrick Loebig (RE: transmittal dates for exhibits) (filed via facsimile). |
| Nov. 21, 1996 | Petitioner`s Request That Witness(es) Appear by Telephone and Motion to Compel Attendance of DOR Witnesses at Final Hearing; Notice of Taking Depositions filed. |
| Nov. 20, 1996 | Letter to M. Mattox from P. Loebig Re: Department`s proposed exhibits; Letter to M. Mattox from B. McGrail Re: Personal desk calendar filed. |
| Nov. 19, 1996 | Order sent out. (re: interrogatories) |
| Nov. 19, 1996 | (Respondent) Notice of Telephone Hearing (filed via facsimile). |
| Nov. 18, 1996 | Respondent`s Motion to Compel Discovery filed. |
| Nov. 18, 1996 | Petitioner`s Witness and Exhibit List filed. |
| Nov. 15, 1996 | Respondent`s Witness and Exhibit List filed. |
| Nov. 08, 1996 | Respondent`s Response to Petitioner`s Request for Production of Documents filed. |
| Oct. 23, 1996 | Order Denying Motion to Relinquish Jurisdiction and Rescheduling Hearing sent out. (hearing reset for 11/22/96; 10:00am; Eustis) |
| Sep. 27, 1996 | Petitioner`s Response in Opposition to Respondent`s Renewed Motion to Relinquish Jurisdiction; and/or in the Alternative Motion to Dismiss filed. |
| Sep. 25, 1996 | Order Granting Motion for Enlargement of Time sent out. |
| Sep. 23, 1996 | Petitioner`s Motion for Enlargement of Time to Respond to Motion to Relinquish Jurisdiction filed. |
| Sep. 17, 1996 | Petitioner`s Response to Order of February 13, 1996 filed. |
| Sep. 09, 1996 | (Respondent) Renewed Motion to Relinquish Jurisdiction; and/or in the Alternative Motion to Dismiss filed. |
| Mar. 26, 1996 | Order sent out. (R. Porter is admitted pro hac vice as counsel for Petitioner) |
| Mar. 11, 1996 | Order on Petitioner`s Motion for Robyn A. Porter to Appear Pro Hac Vice (for Hearing Officer Signature); Verified Motion to Appear Pro Hac Vice; Notice of Taking Depositions w/cover letter filed. |
| Feb. 13, 1996 | Order Granting Abeyance and Requiring Report sent out. (Parties to file status report by 9/17/96) |
| Feb. 13, 1996 | Petitioner`s Notice of Serving Answers to Respondent`s Interrogatories filed. |
| Feb. 12, 1996 | (Respondent) Agreed Motion to Hold Case In Abeyance filed. |
| Feb. 07, 1996 | Petitioner`s Request for Production of Documents filed. |
| Jan. 31, 1996 | Petitioner`s Objection to Subpoena Duces Tecum filed. |
| Jan. 31, 1996 | (Respondent) Notice of Filing Subpoena Duces Tecum; (2) Subpoena Duces Tecum filed. |
| Jan. 29, 1996 | Order Granting Continuance and Rescheduling Hearing sent out. (hearing rescheduled for 4/19/96; 10:00am; Eustis) |
| Jan. 19, 1996 | (Petitioner) Motion to Continue filed. |
| Jan. 08, 1996 | Order Denying Renewed Motion for Leave to File An Amended Petition sent out. |
| Jan. 05, 1996 | (Respondent) Notice of Serving Interrogatories filed. |
| Dec. 20, 1995 | Respondent`s Objection to Renewed Motion for Leave to File Amended Petition filed. |
| Dec. 18, 1995 | (Petitioner) Renewed Motion for Leave to File an Amended Petition filed. |
| Dec. 04, 1995 | Order Denying Respondent`s Motion to Relinquish Jurisdiction, and/or In The Alternative, Motion to Dismiss; Order Denying Petitioner`s Motion for Leave to File Amended Appeal; and Notice of Hearing sent out. (hearing set for 2/8/96; 10:00am; Eustis) |
| Nov. 30, 1995 | Respondent`s Reply to Petitioner`s Motion for Leave to File Amended Petition filed. |
| Nov. 27, 1995 | (Petitioner) Motion for Leave to File Amended Appeal of Agency Action and Response to Stipulation Filed by Agency filed. |
| Nov. 21, 1995 | Order sent out. (re: amended Petition) |
| Nov. 14, 1995 | (Respondent) Stipulation filed. |
| Nov. 09, 1995 | (Respondent) Notice of Telephonic Hearing filed. |
| Nov. 07, 1995 | Respondent`s Reply to Petitioner`s Response to Order to Show Cause filed. |
| Nov. 01, 1995 | Petitioner`s Response to Order to Show Cause filed. |
| Oct. 23, 1995 | Order to Show Cause sent out. |
| Oct. 23, 1995 | (Respondent) Motion to Compel filed. |
| Oct. 18, 1995 | Petitioner`s Response In Opposition to Respondent`s Motion to Relinquish Jurisdiction; and/Or In The Alternative Motion to Dismiss filed. |
| Oct. 13, 1995 | Order Granting Enlargement of Time to File Response to Motion to Relinquish Jurisdiction sent out. |
| Oct. 12, 1995 | Petitioner`s Motion for Enlargement of Time to File Response to Motion to Relinquish Jurisdiction; and/or in the Alternative Motion to Dismiss filed. |
| Sep. 27, 1995 | (Patrick A. Loebig, Brian F. McGrail) Notice of Appearance of Counsel for Respondent filed. |
| Sep. 27, 1995 | (Respondent) Motion to Relinquish Jurisdiction; and/Or In The Alternative Motion to Dismiss; Notice of Appearance of Counsel for Respondent (from Patrick Loebig & Brian McGrail) filed. |
| Sep. 11, 1995 | Initial Order issued. |
| Sep. 01, 1995 | Agency Referral Letter; Appeal Of Final Agency Action; Agency Action Letter filed. |
| Issue Date | Document | Summary |
|---|---|---|
| Apr. 16, 1997 | Agency Final Order | |
| Mar. 07, 1997 | Recommended Order | Petitioner properly terminated because there was a conflict of interest and he became a candidate without proper authorization. |
