STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DAVID SUMMERLIN, )

)

Petitioner, )

)

vs. ) CASE NO. 95-5901

) DEPARTMENT OF TRANSPORTATION, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case on March 4, 1996, in Tallahassee, Florida, before the Division of Administrative Hearings, by its designated Hearing Officer, Suzanne F. Hood.

APPEARANCES

For Petitioner: David Summerlin, Pro Se

Post Office Box 122 Hosford, Florida 32334

For Respondent: Charles G. Gardner, Esquire

Assistant General Counsel Department of Transportation 605 Suwannee Street

Tallahassee, Florida 32399-0458 STATEMENT OF ISSUE

The issue is whether Petitioner's candidacy for, or the holding of, a wpublic office as a county commissioner for Liberty County, Florida, involves or creates a conflict of interest with his state employment.

PRELIMINARY STATEMENT

In July of 1995, Petitioner David P. Summerlin (Petitioner) requested that Respondent Department of Transportation (Respondent) allow him to seek the public office of county commissioner for Liberty County, Florida. Respondent subsequently denied Petitioner's request because his candidacy for, and holding the office of, county commissioner involved an interest which conflicts with Petitioner's state employment.

By letter dated November 8, 1995, Petitioner requested that Respondent furnish him with the specific reason for finding a conflict of interest. This letter also requested a formal hearing pursuant to Section 120.57, Florida Statutes.

Respondent's letter dated November 20, 1995 enumerated the reasons for denying Petitioner's request for approval to qualify as a candidate for the

office of county commissioner. On November 30, 1995 Respondent referred this matter to the Division of Administrative Hearings for assignment of a Hearing Officer.

The undersigned issued a Notice of Hearing setting the case for formal hearing on March 4, 1996. During the hearing, Petitioner testified on his own behalf and offered two (2) exhibits into evidence. Respondent presented the testimony of five (5) witnesses and offered one (1) composite exhibit into evidence.

The transcript of the proceedings was filed on March 18, 1996. Respondent filed its proposed recommended order on March 28, 1996. Petitioner filed his proposed recommended order on April 1, 1996. The Appendix to this Recommended Order contains specific rulings on each of the parties' proposed findings of fact.

FINDINGS OF FACT

1. Petitioner works for the Department of Transportation as an Engineer Technician III in the maintenance section of the Tallahassee field office in Leon County, Florida. Petitioner's position requires that he perform certain tasks in Leon, Gadsden, Jefferson, Wakulla, Franklin and Liberty counties.

   
   

2. Ninety percent of Petitioner's duties involve the inspection of contract maintenance work within a six county area to ensure conformance to contract specifications, department specifications, rules, regulations, and policies.

   
   

3. More specifically, Petitioner inspects, supervises, or measures: (a) work zone traffic control and maintenance of traffic setup; (b) contract roadside mowing, slope mowing, small machine mowing and hand trimming; (c) removal and replacement of existing striping, symbols and raised pavement markers; (d) roadway sweeping and edging and roadside litter removal; (e) tree trimming; and (f) brush removal, drainage repair and other activities assigned to Department of Corrections crews.

   
   

4. Petitioner's job also requires him to: (a) prepare forms used for various concrete projects and daily inspection reports; (b) sample and test concrete and other materials as required; (c) calculate data and input it to computer for weekly status reports; (d) participate in Department/Contractor

   pre-construction conferences; (e) measure, compute and computerize quantities to be used for future contracts; (f) measure, calculate, and input to computer contract quantities to determine payment to contractors and for reporting to Respondent; and (g) assist in contract office administration by preparing required correspondence, documents and quantities on a personal computer.

   
   

5. Approximately five percent of Petitioner's time is spent making daily pre-trip inspections of vehicles, tools and equipment including cleaning and maintenance or scheduling of maintenance.

   
   

6. The remaining five percent of Petitioner's time is spent performing other duties as required.

   
   

7. At times, Respondent's employees, including Petitioner's supervisors, have site meetings with county commissioners, county permitting officials, and/or their delegates.

8. Occasionally Respondent enters into contracts, memoranda of agreement and joint participation agreements with counties and boards of county commissioners. Respondent's enforcement of these contracts sometimes conflicts with the desires of the local government.

   
   

9. Petitioner currently provides specifications and inspects work being done by the county for driveways or county road intersections on a state highway. It is his responsibility to ensure that county employees comply with all specifications when widening turning lanes, deceleration lanes, and acceleration lanes or when placing culverts in ditches.

   
   

10. Petitioner's job requires him to meet with county residents and private contractors to inspect work performed under a Department of Transportation permit. County residents often call upon their county commissioners to assist them when problems arise in the permitting or inspection process.

    
    

11. Petitioner is not actively involved in issuing permits and awarding contracts. However, if Petitioner campaigns or becomes a county commissioner, a conflict of interest would arise any time the county residents put pressure on him to intercede on their behalf and take a position contrary to that of Respondent. In that case, Petitioner would be in a situation where regard for a private or local interest might lead to a disregard for the employee's duty as a state employee.

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

13. Section 110.233(4)(a), Florida Statutes, provides that state employees cannot become a candidate for or hold public office unless such candidacy is authorized by the employee's agency head and approved by the Department of Management Services as involving no conflict of interest or activity which interferes with his or her state employment. Rule 60K-13.002(2)(b), Florida Administrative Code.

    
    

14. Rule 60K-13.002(3), Florida Administrative Code states as follows:

    
    

    Candidacy for or holding a local public office shall be presumed to involve an interest which conflicts with an employee's 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.

    
    

15. Petitioner has not met his burden of establishing that his candidacy or the duties of a county commissioner will not involve a conflict of interest or interfere with his state employment. Rule 60K-13.0032(3), Florida Administrative Code. On the other hand, Respondent presented evidence that Petitioner's state employment as an Engineer Technician III would conflict with the duties or responsibilities of county commissioner.

RECOMMENDATION

Based upon the findings of fact and the conclusions of law, it is, RECOMMENDED:

That Respondent enter a Final Order denying Petitioner's request to campaign for, and to hold, the office of county commissioner in Liberty County, Florida.

DONE and ENTERED this 6th day of May, 1996, in Tallahassee, Leon County, Florida.

SUZANNE F. HOOD, 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 6th day of May, 1996.

APPENDIX CASE NO. 95-5901

The following are the Hearing Officer's specific rulings on the finding of facts proposed by the parties in their proposed findings of fact.

Petitioner's Proposed Findings of Fact

1. Accepted in Findings of Fact 1 of this Recommended Order.

2. Accepted in part in Findings of Fact 2-6 of this Recommended Order.

3. Not supported by competent substantial evidence. The letter from the Clerk to the Board of County Commissioners of Liberty County is hearsay which is not sufficient to support a finding of fact. Section 120.58(1)(a), Florida Statutes.

4. Irrelevant.

5. Accepted in Finding of Fact 11 of this Recommended Order.

6. Accept that, if elected, Petitioner would be a member of a board who could abstain from voting on matters involving a conflict of interest. However, reject that the influence of a county commissioner is limited to formal votes during board meetings. Therefore, irrelevant.

7. Accepted in part in Finding of Fact 11. However, Petitioner admits that he could be required to work in permitting at anytime.

8. Accept, however, if elected, Petitioner as a county commissioner would be meeting with the Assistant District Maintenance Engineer to discuss some issue then, as the state's inspector, be required to follow

   the engineer's policy decisions regardless of Petitioner's political position on that issue.

9. Accept. However, the conflict of interest would still exist.

10. Reject as not supported by persuasive competent substantial evidence. See above.

11. Reject as not supported by persuasive competent substantial evidence.

12. Reject. See above.

13. Accept in Findings of Fact 11 of this Recommended Order.

Respondent's Proposed Findings of Fact

1. Accepted in part in Preliminary Statement. Petitioner's allegations are not findings of fact.

2. Accepted as reasons Respondent gave for not giving Petitioner authorization to campaign and hold office.

3. Accepted. See Preliminary Statement.

4. Accepted in Findings of Fact 1 of this Recommended Order.

5. Accepted in Findings of Fact 1 of this Recommended Order.

6. Accepted in Findings of Fact 9 of this Recommended Order.

7. Accepted in Findings of Fact 2 of this Recommended Order.

8. Not necessary for resolution of the case.

9. Accept as a specific example of conflict described in Findings of Fact 10 of this Recommended Order.

10. Accepted as restated in Findings of Fact 9-11 of this Recommended Order.

COPIES FURNISHED:

Charles G. Gardner, Esquire Dept. of Transportation

605 Suwannee Street

Tallahassee, FL 32399-0458

David Summerlin Post Office 122

Hosford, FL 32334

Ben G. Watts, Secretary Attn: Diedre Grubbs Department of Transportation Mail Station 58

Haydon Burns Building 605 Suwannee Street

Tallahassee, FL 32399-0450

Thornton J. Williams, Esquire Department of Transportation

562 Haydon Burns Building Tallahassee, FL 32399-0450

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 10 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.

Docket for Case No: 95-005901

Orders for Case No: 95-005901