STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ROBERT M. HENDRICK, )

)

Petitioner, )

)

vs. ) CASE NO. 96-2054

)

DEPARTMENT OF REVENUE, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, this matter was heard before the Division of Administrative Hearings by its assigned Hearing Officer, Donald R. Alexander, on June 27, 1996, in Leesburg, Florida.

APPEARANCES

For Petitioner: Robert M. Hendrick, pro se

5022 County Road 48

Okahumpka, Florida 34762

For Respondent: Peter S. Fleitman, Esquire

Post Office Box 6668 Tallahassee, Florida 32314-6668

STATEMENT OF THE ISSUE

The issue is whether petitioner's candidacy for the office of Tax Collector would conflict or interfere with his employment as an auditor for the Department of Revenue.

PRELIMINARY STATEMENT

This matter began on April 10, 1996, when respondent, Department of Revenue, issued a letter denying a request by petitioner, Robert M. Hendrick, to run for Tax Collector for Lake County, Florida, while continuing employment with the agency. As reasons for the denial, respondent stated that it could not certify, as required by law, that petitioner's candidacy involved "no interest which conflicts or activity which interferes" with his state employment as a Tax Auditor IV. Respondent then requested a formal hearing under Section 120.57(1), Florida Statutes, to contest the proposed action.

The matter was referred by respondent to the Division of Administrative Hearings on May 3, 1996, with a request that a Hearing Officer be assigned to conduct a formal hearing. By Notice of Hearing dated June 7, 1996, a final hearing was scheduled on June 27, 1996, in Leesburg, Florida. On June 20, 1996, the case was transferred from Hearing Officer E. J. Davis to the undersigned.

At final hearing, petitioner testified on his own behalf and presented the testimony of T. Keith Hall, Tax Collector for Lake County; and Donald Stevens, an Appraiser II in respondent's Leesburg office. Also, he offered petitioner's exhibits 1 and 2. Both exhibits were received in evidence. Respondent presented the testimony of Wayne R. Rubinas, a process manager in the property tax administration program.

Because of the time constraints in qualifying for office, at hearing the parties requested that the matter be handled on an expedited basis. The transcript of hearing was filed on July 2, 1996. Proposed findings of fact and conclusions of law were filed by respondent on July 5, 1996. A ruling on each proposed finding of fact has been made in the Appendix attached to this Recommended Order.

FINDINGS OF FACT

Based upon all of the evidence, the following findings of fact are determined:

1. Petitioner, Robert M. Hendrick, a career service employee, is employed with respondent, Department of Revenue (DOR), as a Tax Auditor IV in its Leesburg, Florida field office. He has been employed by DOR since September 1991. In his position, petitioner primarily audits tangible personal property assessments performed by the local Property Appraiser and, on occasion, he inspects the property which is the subject of the assessment.

   
   

2. In March 1996, the Lake County Tax Collector publicly announced that he would not run for reelection. After learning of this decision, by letter dated March 19, 1996, petitioner requested authorization from his employer to run for that office. The letter was received by DOR's Executive Director on April 1, 1996. On April 10, 1996, the Executive Director issued a letter denying the request on the ground the candidacy would conflict with petitioner's job duties. More specifically, the letter stated in relevant part that:

   
   

   Under section 195.002, Florida Statutes, the Department of Revenue has supervision of the tax collection and all other aspects of the administration of such taxes. Your position with the Department may require you to review or audit the activities of the office you propose to seek. Also some of your duties in

   supervising other officials in the administration of property taxes may be affected by your proposed candidacy.

   
   

   Your job requires you to review appropriate tax returns, and other records to resolve complex issues related to taxing statutes administered by the Department of Revenue. It also requires you to identify and scrutinize transactions to ascertain whether taxpayers have escaped paying property taxes. In addition, it also requires

   you to review and audit procedures used by counties to identify and value tangible personal property and accomplish statutory compliance, to investigate taxpayer complaints, to conduct field review with

   county staff as appropriate, and to provide education and assistance to county taxing officials.

   
   

   Because of the Department's statutory supervision of the office of tax collector, there cannot be a certification that your candidacy would involve "no interest which conflicts or activity which interferes" with your state employment within the

   definitions in section 110.233(4), Florida Statutes.

   
   

   The letter went on to say that

   
   

   This letter is a specific instruction to you that you should not qualify or become a candidate for office while employed in your current position.

   If you wish to commence your campaign by performing the pre-filing requirements, the law requires that you first resign from the Department. 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 60K-4.010, F.A.C., on the grounds that you are in violation of the Department's Code of Conduct, Section 110.233, Florida Statutes, and Rule 60K- 13.002(3), F.A.C.

   
   

3. After receiving the above decision, by letter dated April 15, 1996, petitioner requested that the Executive Director reconsider his decision. Thereafter, on April 24, 1996, petitioner filed a request for a formal hearing to contest the agency's decision.

   
   

4. Both the Property Appraiser and Tax Collector play a role in the property tax program in the State of Florida. The Property Appraiser generally values or assesses property subject to taxation and applies the millage rate set by the taxing authority. After the tax roll is approved by DOR, it is certified to the Tax Collector who then collects the taxes and distributes them to the appropriate taxing authorities. It is noted that ad valorem taxes make up the lion's share of taxes at the local level while tangible personal property taxes are a very small source of revenues.

   
   

5. DOR is charged with the duties of providing oversight to the property tax program and aid and assistance to the Property Appraiser and Tax Collector. In this regard, DOR views the two offices as an integral part of the property tax program rather than two separate entities. It characterizes the program as "a stream or process where (the) lines of delineation (between the two offices) are not as distinct as they might have been ten or fifteen years ago." Because of the highly sensitive nature of the tax program, it follows that a certain degree of trust and integrity must exist between DOR (and its employees) and the local offices.

   
   

6. Petitioner does not interface with the office of Tax Collector in any respect, and his duties do not require that he audit any of that office's records. His only duties are to audit the tangible personal property assessments performed by the Property Appraiser. These facts were not controverted.

7. Although he has never differed with a valuation of the Property Appraiser during his five year tenure at DOR, and no such disagreement has occurred in Lake County during the last twenty-five years, petitioner could conceivably disagree with an assessment while running for office during the next few months. If the matter could not be informally settled, the tax rolls would not be certified by DOR, and litigation against DOR could be initiated by the Property Appraiser. Under those unlikely circumstances, petitioner might be called as a witness in the case, although the general practice has always been for DOR to use personnel from the Tallahassee office in litigation matters. To the very minor extent that petitioner could affect the tax rolls by disagreeing with the Property Appraiser's valuations, this could also impact the amount of money collected by the Tax Collector. DOR cites these circumstances as potentially affecting in an adverse way the level of trust and integrity between DOR and the office of Tax Collector. However, under the facts and circumstances of this case, this potential conflict is so remote and miniscule as to be wholly immaterial.

   
   

8. The evidence also shows that in his audit role, petitioner has the "opportunity . . . to look and have access to tax returns," some of which "are of TPP (tangible personal property) nature (and) have attached to them federal tax returns" which might be used by the Property Appraiser for establishing the value of tangible personal property. Whether petitioner has ever had access to, or reviewed such, returns is not of record. In any event, to the extent this set of circumstances would pose a potential conflict with the Property Appraiser, as to the Tax Collector, it would be no more significant than the purported conflict described in finding of fact 7.

   
   

9. Finally, DOR suggests that if petitioner was unsuccessful in his bid for office, it would likely damage the "relationship of trust" that now exists between DOR and the Tax Collector. Again, this purported conflict is so speculative as to be deemed immaterial.

   
   

10. The parties have stipulated that, as of the date of hearing, petitioner's only option for qualifying to run for office is to pay a $6,173.00 qualifying fee no later than noon, July 19, 1996. The opportunity for submitting an appropriate number of signatures in lieu of a filing fee expired on June 24, 1996.

    
    

11. On the few, isolated occasions during the last twenty-five years when the Lake County Tax Collector has requested information from DOR personnel, he has spoken by telephone with DOR legal counsel in Tallahassee. Those matters of inquiry, primarily relating to ad valorem taxes, do not concern any area related to petitioner's job duties. He also pointed out that his office always cooperates with the office of the Property Appraiser, especially when "corrections" must be made due to errors by that office. Even so, he described the two offices as being separate and with entirely different duties. This testimony is accepted as being the most persuasive on this issue.

    
    

12. At least four persons have already announced that they would run for Tax Collector for Lake County. The parties have stipulated that one of those persons is a regional administrator for the Department of Highway Safety and Motor Vehicles who was not required to resign his position in order to run for office. According to the incumbent Tax Collector, that individual supervises other state employees who occasionally audit certain aspects of his office pertaining to automobile license plates and decals.

13. Because of the time constraints in this case, and although not legally obligated to do so, respondent has voluntarily agreed to allow petitioner to take annual leave (or presumably leave without pay) commencing on the date he qualifies for local public office, or July 19, 1996, and to remain on leave until a final order is issued by the agency. At that time, if an adverse decision is rendered, petitioner must choose between resigning or withdrawing as a candidate. These terms are embodied in a letter from DOR's counsel to petitioner dated July 3, 1996.

    
    

14. If petitioner is allowed to run for office without resigning, he has represented that he will campaign while on leave or after regular business hours. He has also represented, without contradiction, that his campaign activities will not interfere with his regular duties. If elected, he intends to resign his position with DOR.

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

16. As the party seeking relief, petitioner bears the burden of proving by a preponderance of the evidence that his candidacy would involve "no interest which conflicts or activity which interferes" with his state employment. See, e.g., Fla. Dep't of Transp. v. J.W.C. Co., Inc., 396 So.2d 778, 788 (Fla. 1st DCA 1981). See also Rule 22A-13.0032(3), Florida Admini-strative Code.

    
    

17. Section 110.233(4), Florida Statutes, controls this controversy and provides in relevant part as follows:

    
    

    (4) . . . no employee in the career service shall:

    (a) . . . be a candidate for public office while in the employment of the state . . . 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.

    
    

18. Rules implementing the foregoing law are found in Chapter 60K-13, Florida Administrative Code. Pertinent to this dispute is Rule 60K-13.0031, Florida Administrative Code, which prescribes the procedures for career service employees, such as petitioner, running for local public office. Subsection (2) provides as follows:

    
    

    (2) Within 10 days from the date the agency head receives an employee's request, the agency head shall determine whether the candidacy or duties of the local public office involve an interest which conflicts or an activity which interferes with the employee's state employment and shall either deny or grant authorization pursuant to the request in writing. The reasons

    for the agency's determination shall be stated with specificity. If the request is authorized, the agency head shall advise the Department of Management Services in writing and forward a copy of the written request from the employee and of the agency head's authorization, along with a

    recommendation for approval and the reasons therefor.

    
    

19. Research by the undersigned has disclosed only three prior administrative decisions involving appeals under section 120.57 by career service employees seeking to run for local public office. All involve employees of the Department of Transportation. Summerlin v. DOT, Case No. 95-5901 (Recommended Order, May 6, 1996)(request by DOT employee to run for county commissioner in Liberty County denied where employee's job duties involved inspecting and approving county road projects); Bedenbaugh v. DOT, Case No. 90- 3450 (DOT, July 17, 1990)(no conflict under federal Hatch Act in DOT engineer's candidacy for county commissioner in Columbia County); Crusaw v. DOT, Case No. 88-4122 (DOT, March 28, 1989)(no conflict in DOT engineer technician's candidacy for county commissioner in Columbia County where employee made no policy decisions and worked under a supervisor). While the foregoing precedent may be of some limited value, every case must be judged on its own merits since different local offices, agencies and career service positions are involved.

    
    

20. The broad statutory test for determining whether petitioner may run for local public office without resigning is whether his candidacy will "involve a conflict of interest or interfere" with his state employment. Since the statutory terms "interfere" and "conflict of interest" are not defined, the terms must be accorded their plain and ordinary meaning. Moorehead and DiGregario v. Dep't of Prof. Reg., 550 So.2d 521, 522 (Fla. 1st DCA 1989); State, Dep't of Bus. Reg. v. Salvation Limited, Inc., 452 So.2d 65, 67 (Fla. 1st DCA 1984). Webster's New Collegiate Dictionary (1977 edition) defines "conflict of interest" as "a conflict between the private interests and the official responsibilities of a person in a position of trust (as a government official)." "Interfere" means "to interpose in a way that hinders or impedes: (to) come into collision or be in opposition."

    
    

21. There is no evidence that petitioner's candidacy will "interfere" in any respect with his state employment. That is to say, there is no evidence that petitioner's candidacy will "come into collision (with) or be in opposition" to his normal job duties, or hinder or impede him while performing his regular work assignments. Therefore, in this respect, the statute has been satisfied.

    
    

22. Whether petitioner's candidacy constitutes a conflict of interest with his employment within the meaning of the statute is a more difficult issue.

    Were petitioner seeking to run for the position of Property Appraiser, the issue would be more clearcut. This is because petitioner regularly audits certain Property Appraiser assessments, and DOR has pointed out at least two potential conflicts, which although highly unlikely to occur, might conceivably arise between his candidacy and that office. DOR suggests, however, that even though the Tax Collector and Property Appraiser are two separate constitutional officers, their work is so intertwined that any potential conflict with one would necessarily cause a conflict with the other. According to DOR, even if there is not a direct nexus between the two offices, at a minimum, a conflict with the Property Appraiser could potentially undermine the existing trust and relationship which exists between DOR and the Tax Collector.

23. The greater weight of evidence supports a conclusion that, under the facts and circumstances of this case, a conflict of interest does not exist between petitioner's candidacy for the office of Tax Collector and his employment with DOR. Put another way, the more persuasive evidence supports a conclusion that there will be no "conflict between (petitioner's) private interests (while running for office) and (his) official responsibilities" as a DOR Tax Auditor IV. This being so, he should be allowed to run for office without resigning his career service position.

    
    

24. Finally, although not relied upon at hearing nor cited in DOR's proposed agency action, in its proposed recommended order, DOR has cited for the first time several statutory provisions pertaining to DOR's oversight of the office of Tax Collector. These provisions authorize DOR to (a) approve the Tax Collector's annual budget, Section 195.087(2), F.S., (b) file suit against the Tax Collector to enforce the law, Section 195.092(1), F.S., and (c) upon request, exchange information with the Tax Collector, Section 195.084, F.S. Also, the Tax Collector ostensibly acts as an agent for DOR when collecting taxes due the State of Florida. Aside from the fact that these additional bases for denial are untimely, it was not shown how any of these statutory responsibilities would cause petitioner's candidacy to interfere or conflict with his job duties.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department of Revenue enter a final order granting

petitioner's request that it certify to the Department of Management Services that his candidacy for the office of Lake County Tax Collector would involve no interest which conflicts, or activity which interferes, with his state employment.

DONE AND ENTERED this 10th day of July, 1996, in Tallahassee, Florida.

DONALD R. ALEXANDER, 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 10th day of July, 1996.

APPENDIX TO RECOMMENDED ORDER

Respondent:

1. Partially accepted in finding of fact 1.

2. Partially accepted in findings of fact 2 and 3. 3-5. Partially accepted in finding of fact 1.

6. Partially accepted in finding of fact 5. 7-9. Partially accepted in finding of fact 4.

10-11. Partially accepted in finding of fact 7.

12. Rejected as being irrelevant since petitioner was not an employee of DOR in 1990.

13-17. Partially accepted in finding of fact 7.

18. Rejected as being unnecessary.

19-20. Partially accepted in finding of fact 5.

21. Partially accepted in finding of fact 8. 22-23. Partially accepted in finding of fact 5.

1. Partially accepted in finding of fact 9.

2. Rejected as being unnecessary.

Note - Where a proposed finding of fact has been partially accepted, the remainder has been rejected as being irrelevant, not supported by the evidence, unnecessary, subordinate, or a conclusion of law.

COPIES FURNISHED:

L. H. Fuchs, Executive Director Department of Revenue

104 Carlton Building Tallahassee, Florida 32399-0100

Linda Lettera, Esquire Department of Revenue

204 Carlton Building Tallahassee, Florida 32399-0100

Mr. Robert M. Hendrick 5022 County Road 48

Okahumpka, Florida 34762

Peter S. Fleitman, Esquire Department of Revenue

Post Office Box 6668 Tallahassee, Florida 32314-6668

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit to the agency 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 Department of Revenue concerning its rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the Department of Revenue.

Docket for Case No: 96-002054

Orders for Case No: 96-002054