STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

In Re: PAUL MELOY, SR. DOAH Case No. 93-5984EC

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RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Susan B. Kirkland, held a formal hearing in this case on February 23, 1994, in Fort Myers, Florida.

APPEARANCES

For the Advocate: Stuart F. Wilson-Patton, Esquire

Assistant General Counsel Office of the Attorney General The Capitol, PL-01

Tallahassee, Florida 32399-1050

For Respondent: John H. Shearer, Jr., Esquire

Post Office Box 2196

Fort Myers, Florida 33902-2196 STATEMENT OF THE ISSUES

Whether Respondent violated Section 112.313(6), Florida Statutes, and, if so, what penalty should be imposed.

PRELIMINARY STATEMENT

On September 10, 1992, the Florida Commission on Ethics (Commission) entered an Order Finding Probable Cause to believe that Respondent, Paul Meloy, Sr. (Meloy), as Fire Chief of the Alva Fire Protection and Rescue Service District, violated Section 112.313(6), Florida Statutes, by attempting to retain retirement benefits for himself and the assistant fire chief when neither of them was qualified to receive such benefits. On October 22, 1993, the case was referred to the Division of Administrative Hearings for assignment to a Hearing Officer.

At the final hearing, the parties stipulated that Meloy was not involved in retaining retirement benefits for the assistant fire chief. Meloy requested official recognition be taken of Section 121.0515, Florida Statutes, from 1985 to 1993. The Advocate requested that official recognition be taken of Sections

633.35 and 943.139, Florida Statutes. The parties' requests for official recognition were granted.

The Advocate presented the following witnesses: Paul Meloy, Sr., Wayne V. Maxwell, and Connie Bull. The Advocate also presented the deposition testimony of Ira Gaines. Advocate's Exhibits 1-7 were admitted into evidence. Meloy testified on his own behalf and presented the testimony of Connie Bull and Wayne

1. Maxwell. Respondent's Exhibit 1 was admitted into evidence.

   At the final hearing the parties agreed to file proposed recommended orders within ten days of the date of the filing of the transcript. The transcript was filed on March 11, 1994. On March 21, 1994, the Advocate filed an unopposed Motion for Extension of Time in Which to File Proposed Recommended Order, which motion was granted, extending the time to file proposed recommended orders until April 29, 1994. Respondent filed his proposed recommended order on March 21, 1994, and the Advocate filed his proposed recommended order on April 29, 1994.

   The parties' proposed findings of fact are addressed in the Appendix to this Recommended Order.

   
   

   FINDINGS OF FACT

   
   

   1. At all times relevant to this matter, Respondent, Paul Meloy, Sr. (Meloy), was Volunteer Fire Chief of the Fire Protection and Rescue District for Alva, Florida. As such, he was a "public officer" of an "agency" within the meaning of Sections 112.312(2) and 112.313(1), Florida Statutes.

      
      

   2. Meloy helped to establish a volunteer fire department in the rural community of Alva, Florida in 1973. Meloy was selected as the volunteer fire chief.

      
      

   3. In 1976, the Alva Fire Protection and Rescue Service District (District) was established. The firefighting equipment and vehicles were originally located in Meloy's garage, where he maintained an automotive repair shop. Meloy received a fixed reimbursement from the District each month for the use of his garage and for repair services which he rendered for the District.

      
      

   4. In approximately 1984, Meloy took a 40-hour volunteer firefighting course and became certified as a volunteer firefighter. Full-time firefighters were required to complete a 280-hour firefighting course to become certified as firefighters pursuant to Section 633.35, Florida Statutes. Meloy never took the 280-hour course and has never been a state certified fire fighter pursuant to Section 633.35, Florida Statutes.

      
      

   5. In 1988, the District joined the State of Florida Retirement System (FRS). At that time the District employed four full-time firefighters and a part-time secretary. Meloy worked part-time as the administrator for the District, but did not draw a salary but continued to receive remuneration in the form of the monthly reimbursement for expenses. The full-time firefighters were enrolled in the FRS in 1988 as special risk members, which would allow them to retire at an earlier age than regular members of the FRS and with greater benefits.

      
      

   6. In June, 1990, Meloy was interviewed by an investigator from the Florida Commission on Ethics (Commission) concerning an Ethics Complaint unrelated to the complaint filed in the instant case. Meloy told the investigator that he was not receiving a salary from the District, but that he was receiving reimbursement for expenses. Additionally, he told the investigator that he was not certified to be a full-time professional firefighter.

      
      

   7. In 1990, Connie Bull, was employed as a part-time secretary for the District. Until the District received a letter from the Commission explaining that part-time employees should be enrolled in the retirement system, neither Ms. Bull nor Meloy was aware that part-time employees filling established positions were to be enrolled in the retirement system from the date of their employment.

   8. Ms. Bull called the Division of Retirement (Division) which is the agency responsible for administering the FRS. She talked with Ira Gaines concerning the requirement for the enrollment of part-time employees. Ira Gaines is the retirement services representative with the Division who is responsible for determining eligibility for members in the special risk plan of the FRS. Neither Ms. Bull nor Mr. Gaines recalls any discussion they may have had concerning certification requirements for enrollment in the special risk class.

      
      

   9. Ms. Bull obtained enrollment forms from the Division. She and Meloy filled out and signed the enrollment forms. The form Ms. Bull used for her enrollment was for regular membership. The form used by Meloy was for enrollment in the special risk plan.

      
      

   10. On September 22, 1990, Meloy represented on his enrollment form that he was a firefighter certified, or required to be certified, by the Bureau of Fire and Training and that he was the supervisor or command officer of special risk members whose duties included on the scene fighting of fires. Additionally, Meloy in his capacity as fire chief certified that his position meets the criteria for special risk membership in accordance with Section 121.0515, Florida Statutes, and Florida Retirement System Rules, and he was certified or required to be certified in compliance with Section 943.14 or Section 633.35, Florida Statutes. When he was completing the enrollment form, he told Ms. Bull that he knew that he was not certified.

       
       

   11. Meloy testified in his defense that when he signed the application form that he knew that he was not a certified full-time firefighter and that he knew that special risk members were required to be certified. Meloy stated that by signing the application he was acknowledging that special risk members were required to be certified not that he was certified. Having judged the credibility of Meloy, I find that Meloy's testimony is not credible.

       
       

   12. Ms. Bull sent the executed enrollment forms to the Division on October 17, 1990, with a cover letter stating that she and Meloy had worked for the District for some time on a part-time basis, but were unaware that as part-time employees they should have previously have been enrolled in the retirement system.

       
       

   13. In either 1990 or 1991, after he had executed the enrollment form, Meloy began receiving a salary from the District instead of reimbursement for expenses.

       
       

   14. In January, 1991, the District purchased back retirement benefits for Meloy from August, 1985 through June, 1988 for $4,207.97.

       
       

   15. Sometime after the enrollment forms were submitted and Meloy had been enrolled in the FRS, Ira Gaines and Meloy discussed Meloy's certification. Meloy told Mr. Gaines that he had taken a course which certified him as a firefighter. Meloy did not tell Mr. Gaines that he was a firefighter certified pursuant to Section 633.35. Meloy sent Mr. Gaines a copy of a letter dated

       September 16, 1991, from the Department of Insurance which stated that Meloy had held a Certificate of Competency entitled Volunteer Basic since July 11, 1984.

       
       

   16. Meloy did not qualify for special risk membership in the FRS.

   17. In May, 1992, Meloy was interviewed by an investigator for the Commission concerning the allegations in the Ethics Compliant which had been filed against Meloy. Meloy told the investigator that he knew that the enrollment application which he signed required that the employee had to have taken the 280-hour course to be eligible for the special risk class.

       
       

   18. By letter dated June 29, 1992, the Division notified Meloy that his membership in the FRS and the Florida Retirement Special Risk Class was being terminated. The grounds for termination were that Meloy had been receiving payments for expenses and not compensation and that he was not certified in compliance with Section 633.35, Florida Statutes. Meloy did not appeal the Division's decision.

       
       

   19. If Meloy had been allowed to remain as a special risk member in the FRS, he would have been eligible to draw annually at least $2,024.92 in special risk benefits beginning as early as August, 1995.

       
       

   20. There was no evidence presented that established that Mr. Meloy had anything to do with Assistant Volunteer Fire Chief Brent Golden's application, membership, or retention of any benefits from the FRS and the parties so stipulated.

       
       

       CONCLUSIONS OF LAW

       
       

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

       
       

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

       
       

   23. The burden of proof, absent a statutory directive to the contrary, is on the party asserting the affirmative of the issue of the proceeding. Department of Transportation v. J.W.C. Co., Inc., 396 So.2d 778 (Fla. 1st DCA 1981) and Balino v. Department of Health and Rehabilitative Services, 348 So.2d

       349 (Fla. 1st DCA 1977). In this proceeding it is the Commission, through the Advocate, that is asserting the affirmative: that Meloy violated Section 112.313(6), Florida Statutes. Therefore, the burden of establishing by a preponderance of the evidence the elements of Meloy's alleged violation is on the Commission.

       
       

   24. Section 112.313(6), Florida Statutes, provides:

       
       

       No public officer or employee of an Agency shall corruptly use or attempt to use his official position or any property or resource which may be within his trust, or perform his official duties, to secure a special privilege, benefit, or exemption for himself or others. This section shall not be construed to conflict with s. 104.31.

   25. Section 112.312(9), Florida Statutes, defines "corruptly" 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.

       
       

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

       
       

       1. Meloy must be either a public officer or public employee.

       2. Meloy must have used or attempted to use, his official position or property or resources within his trust, or performed his official duties.

       3. Meloy's actions in element b. must have been done with an intent to secure a special privilege, benefit, or exemption for himself or others.

       4. Meloy's actions and intent in elements

          1. and c. must have been done corruptly, i.e.,

             1. Done with a wrongful intent, and

             2. Done for the purpose of benefiting from some act or omission which is inconsistent with the proper performance of public duties.

          
          

   27. The parties have stipulated that Meloy was Volunteer Fire Chief of the Fire Protection and Rescue District for Alva, Florida and, as such, was a public officer of an agency within the meaning of Sections 112.312(2) and 112.313(1), Florida Statutes.

       
       

   28. In executing the enrollment form as fire chief, the employer, and certifying that his position as employee met the criteria for special risk membership in accordance with Section 121.0515, Florida Statutes, and the Florida Retirement Rules and that he, as the employee, was certified or required to be certified, in compliance with Section 943.14 or Section 633.35, Florida Statutes, Meloy was attempting to use his official position as fire chief to obtain for himself a special benefit, special risk membership in the FRS.

       
       

   29. The Advocate has established that Meloy corruptly attempted to use his position as volunteer fire chief to secure special risk membership in the FRS for himself. He knew that he was not certified pursuant to Section 633.35, Florida Statutes, when he executed the enrollment form because he had not taken the 280-hour firefighter course and he knew that his position either as fire chief or as administrator for the District did not require that he take the 280- hour firefighter course that was required for certification pursuant to Section

1. Additionally, he knew that to be eligible for enrollment in the special risk plan that the employee was required to have taken the 280-hour firefighter course. Based on Meloy's knowledge at the time he executed the enrollment form as fire chief and the plain reading of the certification which he signed, the

   reasonable inference is that he intentionally certified that he was entitled to special risk membership when he knew that he was not so entitled in order to become enrolled as a special risk member of the FRS.

   
   

   RECOMMENDATION

   Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order and Public Report be entered finding that

   Paul Meloy, Sr. violated Section 112.313(6), Florida Statutes, as it relates to

   the allegations concerning his retirement benefits but not as to the retirement benefits of the Assistant Fire Chief, imposing a civil penalty of $2,024.92, and issuing a public censure and reprimand.

   
   

   DONE AND ENTERED this 8th day of July, 1994, in Tallahassee, Leon County, Florida.

   
   

   
   

   SUSAN B. KIRKLAND

   Hearing Officer

   Division of Administrative Hearings The DeSoto Building

   1230 Apalachee Parkway

   Tallahassee, Florida 32399-1550

   (904) 488-9675

   
   

   Filed with the Clerk of the Division of Administrative Hearings this 8th day of July, 1994.

   
   

   APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-5984EC

   
   

   To comply with the requirements of Section 120.59(2), Florida Statutes (1993), the following rulings are made on the parties' proposed findings of fact:

   
   

   Advocate's Proposed Findings of Fact

   
   

   1. Paragraph 1: Accepted.

   2. Paragraph 2-4: Accepted in substance.

   3. Paragraph 5: Accepted.

   4. Paragraphs 6-7: Rejected as unnecessary detail.

   5. Paragraphs 8-12: Accepted in substance.

   6. Paragraph 13: The first, third, and fourth sentences are accepted in substance. The second sentence is rejected as not supported by the greater weight of the evidence. In practice both Mr. Tiner and Meloy supervised the firefighters during on-the-scene fighting of fires. The last sentence is rejected as irrelevant to the extent that Meloy listed all the duties that he was actually performing for the fire department.

   7. Paragraph 14: Accepted in substance.

   8. Paragraph 15: Rejected as irrelevant. There was no evidence presented to show that Meloy knew that the Commissioners and not he should have executed the enrollment form on behalf of the employer.

   9. Paragraphs 16-17: Rejected as subordinate to the facts actually found.

   10. Paragraph 18: Rejected to the extent that it implies that Meloy took no steps to seek help from the Division. He did direct Ms. Bull to call the Division which she did.

   11. Paragraph 19: Rejected as subordinate to the facts actually found.

   12. Paragraphs 21-22: Accepted in substance.

   13. Paragraph 23: Accepted in substance except as to the amount.

13. Paragraphs 24-25: Rejected as constituting argument.

Respondent's Proposed Findings of Fact

1. Paragraph 1: Rejected as constituting a conclusion of law.

COPIES FURNISHED:

Stuart F. Wilson-Patton Advocate For the Florida

Commission on Ethics

Office of the Attorney General The Capitol, PL-01

Tallahassee, Florida 32399-1050 John H. Shearer, Jr., P.A.

Post Office Box 2196

Fort Myers, Florida 33902-2196

Bonnie Williams Executive Director

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

Phil Claypool, Esquire General Counsel

Ethics Commission

2822 Remington Green Circle, Suite 101 Post Office Drawer 15709

Tallahasee, Florida 32317-5709

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this recommended order. All agencies allow each party at least ten days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this recommended order. Any exceptions to this recommended order should be filed with the agency that will issue the final order in this case.

Docket for Case No: 93-005984EC

Orders for Case No: 93-005984EC