STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

In re: MICHAEL JONES, )

) Case No. 97-5924EC

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case on July 31, 1998, at Miami, Florida, before Susan B. Kirkland, a duly designated Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

Advocate: Virlindia Doss

Assistant Attorney General Attorney General's Office The Capitol, Plaza 01

Tallahassee, Florida 32399-1050

For Respondent: David Nevel, Esquire

Law Offices of Ronald S. Lowy

420 Lincoln Road, Seventeenth Floor Miami Beach, Florida 33139

STATEMENT OF THE ISSUES

Whether Respondent violated Section 112.313(6), Florida Statutes.

PRELIMINARY STATEMENT

On October 21, 1997, the Florida Commission on Ethics entered an Order Finding Probable Cause to believe that Respondent, Michael Jones, as Assistant to the City Manager of the City of Opa-Locka, violated Section 112.313(6), Florida Statutes, by having a privately owned vehicle repaired using

resources of the City of Opa-Locka. On December 17, 1997, this case was forwarded to the Division of Administrative Hearings for assignment to an Administrative Law Judge.

The final hearing was scheduled for April 27, 1998. Two requests for continuances were filed by the Advocate. The requests were granted, and the final hearing was held on July 31, 1998.

At the final hearing, the Advocate called Michael Jones, Jesus Corrales, and Angelita Griffin as her witnesses.

Advocate's Exhibits 1-3 were admitted in evidence. The Respondent testified in his own behalf and called Earnie Neal as his witness.

The parties agreed to file their proposed recommended orders within ten days of the filing of the transcript. The transcript was filed on September 9, 1998. By letter dated September 17, 1998, the Advocate advised the Administrative Law Judge that the parties had agreed to file their proposed recommended orders by September 23, 1998. The Advocate filed her Proposed Recommended Order on September 25, 1998. The Respondent filed a Proposed Recommended Order on October 5, 1998. The Proposed Recommended Orders have been considered in rendering this Recommended Order.

FINDINGS OF FACT

1. Respondent, Michael Jones (Jones), was Assistant City Manager for the City of Opa-Locka, Florida (City), from October

   1995 to May 1997. As part of his duties, Mr. Jones was in charge of public works, which included the motor pool, where repairs were made to city vehicles.

2. On November 1, 1995, while on the way to a Rotary Club banquet which Ms. Griffin was required to attend as part of her job with the City, Ms. Griffin had an automobile accident, damaging the bumper on her car. She drove the damaged vehicle to the banquet. After the banquet, Ms. Griffin told Mr. Jones that her car had been damaged, and Mr. Jones saw the bumper lying on the ground.

3. Ms. Griffin drove her vehicle to the police station and left it there overnight.

4. The next day, Ms. Griffin picked up her car at the police station and took it to the public works building. She met Mr. Jones who told her that she could wait in his office area while her car was being repaired.

5. Mr. Jones told Jesus Corrales, a City employee, to fix the bumper which had fallen off Ms. Griffin's car. At the time Mr. Corrales worked on the automobile he did not know that

   Ms. Griffin was the owner of the car. He put the bumper back on Ms. Griffin's car. The job took between two to three hours.

6. Ms. Griffin's car was a white Honda. Ms. Griffin's car was the only white Honda that Mr. Jones ever asked Mr. Corrales to repair.

7. When the repairs were completed, Ms. Griffin offered to pay Mr. Corrales, but Mr. Corrales would not accept any payment.

8. The repairs were made during work hours and using city resources.

9. Mr. Jones knew that it was improper to have cars, other than cars owned by the City, repaired at the City Public Works Department using City employees and City equipment.

10. Ms. Griffin benefited by having her car repaired for free by employees of the City during working hours.

    CONCLUSIONS OF LAW

    
    

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

12. 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); Balino v. Department of Health and Rehabilitative Services, 348 So. 2d 349 (Fla. 1st DCA 1977). In this proceeding, it is the Commission, through the Advocate, that is asserting that Mr. Jones violated Section 112.313(6), Florida Statutes. Thus, the burden of establishing by clear and convincing evidence the elements of Respondent's violation is on the Commission. Latham v. Florida Commission on Ethics, 694 So. 2d 83 (Fla. 1st DCA 1997).

13. Section 112.313(6), Florida Statutes, which provides:

    
    

    MISUSE OF PUBLIC POSITION

    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.

14. The term "corruptly" is defined by Section 112.312(9), Florida Statutes, as follows:

    'Corruptly' means done with a wrongful intent and for the purpose of obtaining, or compensating or receiving compensation for, any benefit resulting from some act or omission of a public servant which is inconsistent with the proper performance of his public duties.

    
    

15. In order to establish a violation of

    
    

    Section 112.313(6), Florida Statutes, the following elements must be proved:

    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's actions must have been taken to secure a special privilege, benefit or exemption for himself or others.

    4. 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 omission, which was inconsistent with the proper performance of public.

16. As Assistant to the City Manager of the City of Opa- Locka, Florida, Mr. Jones was subject to the requirements of Part III, Chapter 112, Florida Statutes.

17. Mr. Jones used the power of his office to instruct

    
    

    Mr. Corrales, a City employee, to repair Ms. Griffin's car during working hours and using City equipment and facilities.

    Obviously, Ms. Griffin received a benefit from having her car repaired free of charge.

18. Mr. Jones admitted that he did have a City employee repair the car and he admitted that he knew that only cars owned by the City were supposed to be repaired at the City motor pool. The Advocate has established by clear and convincing evidence that Respondent violated Section 112.313(6), Florida Statutes.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding that Respondent, Michael Jones, violated Section 112.313(6), Florida Statutes, imposing a civil penalty of $1,000 and issuing a public censure and reprimand.

DONE AND ENTERED this 9th day of October, 1998, in Tallahassee, Leon County, Florida.

SUSAN B. KIRKLAND

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 9th day of October, 1998.

COPIES FURNISHED:

Bonnie Williams, Executive Director Florida Commission on Ethics

Post Office Drawer 15709 Tallahassee, Florida 32317-5709

Phil Claypool, General Counsel Florida Commission on Ethics Post Office Drawer 15709 Tallahassee, Florida 32317-5709

Virlindia Doss, Advocate Florida Commission on Ethics Office of the Attorney General The Capitol, Plaza 01

Tallahassee, Florida 32399-1050

David Nevel, Esquire

Law Offices of Ronald Lowy

420 Lincoln Road Penthouse Seventh Floor

Miami Beach, Florida 33139

Kerrie J. Stillman Complaint Coordinator

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

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

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.

Docket for Case No: 97-005924EC

Orders for Case No: 97-005924EC