STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

IN RE: DONALD JAEGER, CASE NO. 94-2502EC

Respondent.

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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 by video teleconference on December 20, 1994, in West Palm Beach, Florida.

APPEARANCES

For Advocate: Marty E. Moore, Esquire

Attorney General's Office PL-01, The Capitol

Tallahassee, Florida 32399-1050

For Respondent: Randall W. Henley, Esquire

328 Banyan Boulevard, Suite C West Palm Beach, Florida 33401

STATEMENT OF THE ISSUES

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

PRELIMINARY STATEMENT

On July 20, 1993, the Florida Commission on Ethics filed an Order of Probable Cause finding that there was cause to believe that Respondent, Donald Jaeger, violated Section 112.313(6), Florida Statutes, by using public resources to write a paper for a class he was taking. The case was forwarded to the Division of Administrative Hearings on May 5, 1994, for assignment to a hearing officer. The case was scheduled for hearing on August 19, 1994. On July 12, 1994, Respondent filed a Motion for Continuance which was granted. The hearing was rescheduled for December 20, 1994.

At the final hearing Joint Exhibits 1-4 were admitted in evidence. The Advocate called Carrie Parker and Fran Sceblo as witnesses. Respondent testified in his own behalf and called John Corbett and Robert Walshak as witnesses. Respondent Exhibit 1 was admitted in evidence. The parties stipulated to the facts contained in paragraphs 1-13 of Section E of the Joint Prehearing Stipulation.

At the final hearing the parties agreed to file their proposed recommended orders on or before December 30, 1994. The parties timely filed their proposed recommended orders. The parties' proposed findings of fact are addressed in the appendix to this Recommended Order.

FINDINGS OF FACT

1. From May 26, 1989 to September, 1994, the Respondent, Donald Jaeger (Jaeger), was employed as the Building Official for the City of Boynton Beach, Florida (City).

   
   

2. As part of Jaeger's responsibilities he oversaw the zoning, construction, code enforcement and occupational licensing for the City. His job description stated that he would keep abreast of new changes in applicable laws and regulations and recommend changes to the laws and regulations for which the Building Official was responsible for enforcing. The City's building, licensing, and housing codes are elements which affect affordable housing in the City.

   
   

3. In the fall semester of 1991, Jaeger enrolled in an academic program leading to a doctorate degree in public administration at Florida Atlantic University (FAU). He requested that the City pay for the course work. The City manager denied his request, stating that the pursuit of a doctorate degree in public administration was not applicable to being a building official.

   
   

4. During the fall semester of 1991, Jaeger took a course entitled State Government and Public Policy at FAU taught by former Governor Reuben Askew.

   
   

5. For his State Government and Public Policy Course, Jaeger wrote a research paper entitled "The Effect of Government Regulation on Affordable Housing -- Competing Public Policy Objectives."

   
   

6. Jaeger dictated the original draft of his research paper to his administrative assistant, Fran Sceblo, who then typed it up, presented it to him for editing and retyped it whenever he made corrections. She worked for approximately two and half to three weeks on the report. During some of the time she shifted some her work to others in the office so that she could finish the report.

   
   

7. Some of the dictation and typing of Jaeger's research paper was done during regular Monday-through-Friday work hours.

   
   

8. All dictation and typing of the Respondent's research paper were done in City offices, on City equipment and using City paper.

   
   

9. Jaeger provided the computer disk upon which the work in progress and final product of his research paper were stored.

   
   

10. Before beginning dictation, Jaeger offered to pay Ms. Sceblo for working on his research paper, if she worked outside her normal working hours.

    
    

11. On a few occasions, Ms. Sceblo stayed in the office past five o'clock to work on Jaeger's research paper.

    
    

12. Jaeger never paid Ms. Sceblo for any of her work on his research paper.

    
    

13. On February 20, 1992, Jaeger sent a letter to Samuel Gerace, along with a manuscript of his research paper, offering that research paper for publication in Southern Building Magazine. The paper was never published.

14. Jaeger received a satisfactory grade in his State Government and Public Policy course, and that grade was based in part on his 16-page research paper.

    
    

15. Jaeger did not submit copies of the paper to his colleagues on the City's staff, the City manager, or the City commissioners.

    
    

16. Jaeger attended three conferences concerning affordable housing prior to the time the research paper was written. The cost for the conferences and the cost of attending were paid by the City.

    
    

17. Jaeger had prepared other school related reports using City resources, during business hours, with the knowledge and permission of the City manager. These reports reflected activities that were directly related to his work with the City.

    
    

18. The research paper did have some benefit to the City because the City did deal with issues dealing with affordable housing and the City had evidenced its intention to have some of its employees, including Jaeger, educated on the issues involving affordable housing.

    
    

19. There was no city policy which would have prohibited Jaeger from researching the issue of affordable housing and making a report on his research. Jaeger's job description stated that the building official "has wide latitude for exercise of independent jugment and use of delegated authority, laws, regulations, codes, and ordinances applicable to Inspection Division operations."

    
    

20. The cost of the time spent by Jaeger and Ms. Sceblo on the paper was approximately $1,745.

    
    

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

    
    

22. 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) 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 its Advocate, that is asserting the affirmative: that the Respondent violated Section 112.313(6), Florida Statutes. Therefore, the burden of establishing by a preponderance of the evidence the elements of the Respondent's violation is on the Commission.

23. 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.

    
    

24. The term "corruptly" is defined by Section 112.312(9), Florida Statutes, to mean:

    
    

    [D]one with a wrongful intent and for the purpose of obtaining, or compensating or receiving compen- sation for, any benefit resulting from some act

    or omission of a public servant which is incon- sistent with the proper performance of his public duties.

    
    

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

    
    

    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 must have acted to secure a special privilege, benefit, or exemption for himself or others.

    4. In so doing, 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 proper performance of his public duties.

       
       

26. The Advocate has failed to establish by a preponderance of the evidence that Jaeger violated Section 112.313(6), Florida Statutes. In Blackburn v. State, Commission on Ethics, 589 So.2d 431 (Fla. 1st DCA 1991), the court reversed a finding of the Commission on Ethics that County Commissioner Blackburn had violated Section 112.313(6), Florida Statutes, when she had a county employee compile and draft an article on the county's garbage collection ordinance, which article was later used by the Commissioner in her reelection campaign. The court concluded that the article served a dual purpose -- to inform the county commissioner on an issue of vital importance to the county citizens and to assist the commissioner in her reelection campaign. One of the purposes is a valid public purpose; thus the court concluded that the Commissioner's personal use of the information in her campaign did not constitute a violation of Section 112.313(6), absent competent substantial evidence to support a finding that the commissioner's only purpose in requesting the information was to use it in her reelection campaign.

27. In the instant case, the City was interested in having its employees educated on the issues concerning affordable housing. Jaeger had attended at least three conferences on affordable housing at the expense of the City. The paper itself did go into areas which came under the jurisdiction of the Inspection Division and which had some relationship to the issues related to affordable housing. Such areas included the cost of compliance with building codes and its effect on the cost of single family dwellings and the latitude of building officials in accepting alternative methods of construction as a means of reducing the costs of housing. The building official's job description gives the building official wide latitude in the operation of the Inspection Division. Thus, the preparation of a paper on the issue of affordable housing is not inconsistent with Jaeger's proper performance of his duties as a building official. Jaeger's use of the paper in his coursework does not make the preparation of the paper a violation of 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 Donald Jaeger did

not violate Section 112.313(6), Florida Statutes and dismissing the complaint against Donald Jaeger.

DONE AND ENTERED this 30th day of January, 1995, 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 30th day of January, 1995.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-2502EC

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. Stipulated Facts

1. Paragraphs 1-13: Accepted.

Facts Based on Evidence Presented at Hearing

1. Paragraph 1: Accepted to the extent that the City would not pay for the coursework because it was not considered applicable to a building official. Rejected to the extent that it implies that any project or report that Jaeger may do during the coursework would also not be applicable to the work of the building official.

2. Paragraph 2: Accepted in substance.

3. Paragraph 3: The first sentence is accepted in substance. The second sentence is rejected as irrelevant.

4. Paragraphs 4-6: Accepted in substance.

5. Paragraph 7: Rejected as subordinate to the facts actually found.

6. Paragraph 8: Accepted in substance.

7. Paragraphs 9: Rejected as subordinate to the facts actually found.

8. Paragraph 10: The last sentence is accepted in substance. The remainder is rejected as subordinate to the facts actually found.

9. Paragraphs 11-13: Rejected as constituting argument.

10. Paragraph 14: The first sentence is rejected as subordinate to the facts actually found. The second sentence is accepted in substance. The third sentence is rejected as subordinate to the facts actually found.

11. Paragraphs 15-16: Rejected as constituting argument.

12. Paragraph 17: Accepted in substance.

13. Paragraph 18: Rejected as unnecessary.

Respondent's Proposed Findings of Fact. Stipulated Facts

1. Paragraphs 1-13: Accepted.

Facts Based on Evidence Presented at Hearing

1. Paragraph 1: Rejected as unnecessary.

2. Paragraph 2: Accepted in substance.

3. Paragraphs 3-4: Accepted in substance.

4. Paragraph 5: Rejected as subordinate to the facts actually found.

5. Paragraph 6: The first sentence is accepted in substance. The second sentence is rejected as irrelevant.

6. Paragraph 7: Accepted in substance.

7. Paragraph 8: Accepted in substance except as it relates to Civil Service Rules. There was no competent substantial evidence to support such a finding as it related to the Civil Service Rules.

8. Paragraph 9: The portion relating to the job description is accepted in substance. The remaining is rejected as not supported by competent substantial evidence.

9. Paragraph 10: Rejected as subordinate to the facts actually found.

COPIES FURNISHED:

Kerrie Stillman Complaint Coordinator Commission on Ethics Post Office Box 15709

Tallahassee, Florida 32317-5709

Marty Moore, Esquire Department of Legal Affairs The Capitol PL-01

Tallahassee, Florida 32399-1050

Randall Henley, Esq.

328 Banyan Boulevard, Suite C West Palm Beach, Florida 33401

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

Tallahassee, 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: 94-002502EC

Orders for Case No: 94-002502EC