STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

In Re: LAWRENCE R. HAWKINS, ) CASE NO. 94-4715EC

)

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 May 22-24, 1995, in Miami, Florida.

APPEARANCES

For Advocate: Virlindia Doss, Esquire

Advocate for the Florida Commission on Ethics

Attorney General's Office PL-01, The Capitol

Tallahassee, Florida 32399-1050

For Respondent: Rauol Cantero, Esquire

Adorno and Zeder, P.A. 2601 South Bayshore Drive Miami, Florida 33133

STATEMENT OF THE ISSUES

Whether Respondent violated Sections 112.3148(2)(a) and 112.313(6), Florida Statutes, and if so, what penalty should be imposed.

PRELIMINARY STATEMENT

On June 7, 1994, the State of Florida Commission on Ethics issued an Order Finding Probable Cause to believe that Respondent, Lawrence Hawkins, violated Section 112.3148(2)(a), Florida Statutes, by failing to report a trip to New Orleans on his 1990 financial disclosure; Section 112.313(6), Florida Statutes, by using his position to try to generate business for Seitlin and Company, an insurance company which employed him as a paid consultant; Section 112.313(6), Florida Statutes, by using public resources in furtherance of his work for Seitlin; Section 112.313(6), Florida Statutes, by using his position to secure a special benefit for the Dade County Easter Seals Society; and Section 112.313(6), Florida Statutes, by using his position to sexually harass his subordinate female employees. On August 26, 1994, the case was forwarded to the Division of Administrative Hearings for assignment to a hearing officer to conduct a public hearing. The case was scheduled for hearing for March 13-17, 1995. A Joint Motion for Continuance was filed on January 17, 1995. The motion was granted and the hearing was rescheduled for May 22-26, 1995.

At the final hearing the Advocate called the following witnesses: Helene Goode, Joan Bornstein, John Fox, Lynn Solte, Mary DiFede DelPino, Richard Johnson, Brodis Hartley, Rashel Nudelman, Marcia Fernandez-Morin, Sylvia Farina, Lilly Abello, Jackie Salazar Bofill, Alicia Marquez, Rosa Proenza, Kim Sorondo, and Al Calli. Advocate's Exhibits 1-10 were admitted in evidence. At the final

hearing, Respondent testified in his own behalf and called the following witnesses: Joan Bornstein, Richard Johnson, Sylvia Farina, Debra Mayo, Yanette Bravo, Frances Pons, Carolyn Hawkins, Kevin Stein, and Harvey Ruvin.

Respondent's Exhibits 1-4 were admitted in evidence.

At the close of the testimony, the Advocate declined to order a transcript.

The Respondent requested and was given until May 26 to decide whether to order all or a portion of the testimony transcribed. The proposed recommended orders were due to be filed within 30 days of the date of the filing of the transcript. On July 7, 1995, no transcripts having been filed, the Advocate moved to compel the Respondent to file any portions of the transcript which he intended to file. An order was issued requiring Respondent to file any portions of the transcript which were in his possession, and the parties were ordered to file proposed recommended orders by August 11, 1995. On July 12, transcripts of portions of the hearing were filed. On August 2, 1995, additional portions of the transcript were filed, and on September 11, 1995, the transcript of the testimony of Debra Mao, Ynette Bravo, and Francis Ponz was filed.

The parties filed their proposed recommended orders on August 11, 1995. On August 15, 1995, the Advocate filed a Motion to Permit Amendment of Proposed Recommended Order, stating that she had not been advised that additional portions of testimony had been filed with the Division of Administrative Hearing on August 2, 1995, and respresenting that Respondent had no objection to the granting of the motion. The Advocate's motion was granted and the time for filing an amendment was extended to August 21. The Advocate filed an amended proposed recommended order on August 17, 1995. The parties' proposed findings of fact are addressed in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. Respondent, Lawrence R. Hawkins (Hawkins) took office as a Dade County Commissioner on October 18, 1988, and served until November, 1994, when he lost his bid for reelection. At all times pertinent to the instant Complaint, Hawkins was a member of the Dade County Commission.

   
   

2. Hawkins became aware of the Code of Ethics (Part III of Chapter 112, Florida Statutes) while he was a member of the Florida House of Representatives from 1978 to 1986. Based on his general experience, Hawkins is basically familiar with the Code of Ethics as it relates to misuse of office, conflict of interest, and nepotism.

   
   

   THE NEW ORLEANS TRIP

   
   

3. In March, 1990, Hawkins took a trip to New Orleans as the guest of Lowell Dunn, a Miami businessman. The outing included travel to and from New Orleans for Hawkins and his companion in Mr. Dunn's private airplane, as well as limousine transportation from the New Orleans airport to Commander's Palace and back, and breakfast for Hawkins and his companion.

   
   

4. The week following the New Orleans trip, Mr. Dunn had an issue come up before the County Commission for a vote.

   
   

5. On July 1, 1991, Hawkins filed a Form 7, Statement of Gifts and Other Non-Compaign Contributions for Year Ending December 30, 1990 (Form 7). The form is dated as being signed by Hawkins on June 17, 1991.

6. Form 7 calls for the officer completing the form to list "each contribution, including any gift, donation, or payment the value of which exceeds $100 . . ."

   
   

7. Hawkins entrusted the completion of Form 7 to his mother, Carolyn Hawkins. The trip to New Orleans was not listed on Form 7 which Hawkins filed on July 1, 1991.

   
   

8. On December 13, 1991, Hawkins filed an amended Form 7, disclosing the trip to New Orleans.

   
   

9. When interviewed by an investigator from the Commission on Ethics, Hawkins stated under oath that he knew that the value of the trip was more than

   $100. The value of the trip, including air and ground transportation and the meal, was in excess of $100.

   
   

10. Carolyn Hawkins testified at the final hearing that in her preparations for filing the financial disclosure statement for her son she comparison shopped and found a round trip ticket to New Orleans for $198 and another for $100. Mrs. Hawkins gave a statement to the State Attorney's office concerning the air fare. The transcript reads that she told the State Attorney that she found a round trip for $198. Mrs. Hawkins asserts that the court reporter did not get the transcript correct and that she told the State Attorney that the fare was $100. Mrs. Hawkins told the State Attorney that she had found a trip for $198.

    
    

11. Prior to filing Form 7, Mrs. Hawkins called Bonnie Williams, the Executive Director for the Commission on Ethics concerning whether the trip had to be reported. Ms. Williams has been with the Commission on Ethics since its inception in 1974 and was familiar with the applicable law on disclosure at the time Mrs. Hawkins called her. Contrary to Mrs. Hawkins' claim, Ms. Williams did not tell Mrs. Hawkins that the trip did not have to be reported. Mrs. Hawkins misunderstood what Ms. Williams told her.

    
    

    SEITLIN INSURANCE

    
    

12. Hawkins was employed by Seitlin & Company (Seitlin), an insurance brokerage firm, for approximately one year between 1990 and 1991. Hawkins had very little experience in the insurance business. Hawkins received a flat fee of $25,000, in return for which he would learn the practice of insurance and refer business to Seitlin if the opportunity should arise. Hawkins received no commissions or bonuses from referring business to Seitlin, and was not required to refer business to Seitlin. Hawkins viewed his employment with Sietlin as a "long term relationship type of thing." As part of the agreement, Seitlin was to provide Hawkins with an office and support staff at the Seitlin office; however as Hawkins testified at final hearing he was "very very very rarely" at his Seitlin office.

    
    

13. In May, 1990, Hawkins sought to have a proclamation presented by the County Commission honoring Seitlin and proclaiming Tuesday, May 15, 1990 "Seitlin and Company" day. He requested that his secretary, Marcia Fernandez- Morin place the item on the County Commission agenda, which she did. At the hearing, Hawkins claims that Ms. Fernandez-Morin had the item placed on the agenda without his knowlege or permission. I find his testimony not to be credible. Hawkins had close personal ties with Steve Jackman, the CEO of Seitlin, and Hawkins was being paid $25,000 a year as a consultant for Seitlin. No evidence was presented to show that Ms. Fernandez-Morin had any interest in

    Seitlin or that she would have any reason for placing the item on the agenda other than she was requested to do so by Hawkins.

    
    

14. Hawkins kept Seitlin business cards and stationery in his County Commission office. On occasion Hawkins had Ms. Fernandez-Morin type Seitlin related correspondence for him while she was working for Hawkins in the County Commission office.

    
    

15. Hawkins frequently had visitors from Seitlin in his office; however, there was no evidence presented that they were conducting Seitlin business during these visits.

    
    

16. While Hawkins was working for Seitlin, secretaries in Hawkins' County office would place calls to Seitlin for Hawkins and arrange breakfast and dinner meetings with Seitlin representatives for Hawkins.

    
    

    CHI

    
    

17. The Community Health Center of South Dade (CHI) provides outpatient care for indigents in the Homestead area in Dade County.

    
    

18. Brodis Hartley is, and has been at all times pertinent to the Complaint, the Chief Executive Officer for CHI.

    
    

19. CHI receives approximately one-fourth of its funding from Dade County.

    
    

20. From 1989 to 1992, Hawkins was Chairman of the Health and Human Services of the County Commission. The Health and Human Services Committee had oversight responsibility for CHI. The Committee reviewed its budget.

    
    

21. Hawkins' mother is a member of CHI's board of directors and its finance committee. While reviewing CHI's financial statements, Mrs. Hawkins became concerned that CHI was paying too much for insurance. She asked Hawkins if he could determine whether CHI's insurance premiums were too high. She told Hawkins that the person to contact at CHI was Nicholas Arnao, the Risk Manager for CHI.

    
    

22. Based on his mother's request, Hawkins asked Richard Johnson, an insurance agent employed at Seitlin, to call CHI. Mr. Johnson viewed the referral as potential new business for Seitlin.

    
    

23. Mr. Johnson called Mr. Arnao concerning the insurance. Mr. Arnao told Mr. Hartley that he had recieved a call from Seitlin. Mr. Hartley knew about the relationship between Seitlin and Hawkins. Mr. Hartley had no interest in having the insurance reviewed except that he wanted to maintain a good relationship with Hawkins.

    
    

24. Mr. Arnao was opposed to letting Seitlin take a look at the insurance coverage for CHI. Hawkins knew of Mr. Arnao's opposition. Hawkins told the investigator for the Commission on Ethics that he called Arnao and asked him to cooperate. He stated, "I remember talking to Mr. Arnao and saying, 'you know, I would appreciate it if you would let Dick see what was doing.'"

    
    

25. Neither Hawkins nor his mother informed Mr. Hartley that Mr. Johnson would be calling about the insurance. Mr. Hartley discovered that Hawkins had referred Mr. Johnson only after he asked Mr. Johnson who referred him to CHI.

26. Mr. Johnson did review the insurance coverage and discovered that CHI was paying too much for its workers' compensation coverage. He made a proposal to CHI which would reduce its workers' compensation insurance by $50,000. CHI submitted the Seitlin proposal to its own insurance broker, which eventually reduced CHI's workers' compensation by the same amount.

    
    

27. The primary purpose in Hawkins' requesting Mr. Johnson to review CHI's insurance was to determine if CHI was paying too much for its insurance, not to garner business for Seitlin.

    
    

    EASTER SEALS

    
    

28. In mid-1991, Easter Seals of Dade County (Easter Seals) began looking for a new president. Its current president, Al Calli, was preparing to retire. The position pays approximately $98,000 per year.

    
    

29. Mr. Calli approached Hawkins to see whether he was interested in the position. Hawkins indicated that he might be and sent a resume to Easter Seals. Prior to September 19, 1991, Hawkins interviewed for the job with the search committee at Easter Seals.

    
    

30. The County Commission holds two hearings each September regarding the proposed budget for the following year. In 1991, the hearings were held on September 5 and 19.

    
    

31. Dade County has many community-based organizations (CBOs) that offer services to the poor, sick, and underprivileged of the County. Easter Seals is a CBO. Many CBO's receive a percentage of their funding from Dade County.

    
    

32. To receive funding from the County, CBO's must apply. At first the County did not have a formal application process; an interested CBO would simply attend a budget hearing and request funding. Gradually, the County developed a more formalized procedure whereby CBO's would submit a written application. The prior practice of simply attending a budget hearing was never totally abandoned, however, and CBO's who did not submit an application for funding nevertheless would be considered for funding if they requested it at a budget hearing.

    
    

33. The Community Committee for Development Handicaps (CCDH) is a community based consortium designated as an umbrella organization for a number of entities which serve the developmentally handicapped. CCDH would request funds from Dade County and then disburse the funds among its member agencies.

    
    

34. Agencies which are members of CCDH enter into a contract with CCDH, agreeing not to make individual funding requests to the County Commission at the general yearly budget hearings. Easter Seals was a founding member of CCDH and had a contractual agreement as described above with CCDH in September, 1991. Easter Seals viewed the agreement with CCDH not to prohibit Easter Seals from requesting capital funds from the County Commission and had requested capital funds in the past.

    
    

35. Prior to the budget hearings in September, 1991, CCDH had submitted a written request to the County indicating the amount of money it sought and the way it expected to distribute the money. CCDH had expected to distribute approximately $14,000 to Easter Seals.

    
    

36. On September 19, Easter Seals Board Chairman John Fox received a telephone call at his office. The caller identified himself as being from

    Hawkins' office. He indicated that a funding request from Easter Seals to the County might be favorably received and suggested that Easter Seals send a representative to the Commission meeting that night and request $75,000.

    
    

37. George Hiados, an Easter Seals employee, was sent to the budget meeting to request the $75,000 for Easter Seals, which he did.

    
    

38. Helene Goode, who has been the Executive Director of CCDH for the past thirteen years, attended the budget meeting on September 19 and became concerned when Mr. Hiados requested the money for Easter Seals. She viewed the request as a breach of the agreement between CCDH and Easter Seals. Ms. Goode sent a note to Hawkins during the budget meeting expressing her concern over Easter Seals' request.

    
    

39. When the matter came to a vote, it was Commissioner Art Teele who moved that Easter Seals be appropriated $50,000. In making the motion, Mr. Teele looked at Respondent and asked if that was for capital and Hawkins nodded his head affirmatively. Hawkins voted in favor of the appropriation to Easter Seals.

    
    

40. Hawkins was hired as the CEO of Easter Seals in November, 1991.

    
    

    HARRASSMENT OF EMPLOYEES

    
    

41. Dade County had a sexual harrassment policy in force when Hawkins was County Commissioner. Hawkins was aware of the policy and believed it applied to Commissioners as well as County employees.

    
    

42. Rashel Nudelman was employed as a secretary in Hawkins' office from February 1990 to November 1991. While Ms. Nudelman was employed in Hawkins' office, Hawkins made sexually explicit remarks to her. Examples of these remarks include: "Your tits look great today," and "Your tits are hanging out." Many of these remarks would be accompanied by lewd facial expressions and leers. Hawkins also made remarks about Ms. Nudelman to other employees, telling Mary Delpino that Ms. Nudelman "had a great set of tits."

    
    

43. There were also occasions when Hawkins, in talking to Ms. Nudelman on the telephone, would inform her that he was in bed naked and invite her to join him.

    
    

44. On one occasion, Hawkins asked Ms. Nudelman to rub liniment on his back.

    
    

45. In the fall of 1991, Ms. Nudelman was placed on a medical leave of absence for two weeks. When she returned she was fired because Terry Murphy, Hawkins' assistant, advised Hawkins that Ms. Nudelman was being disruptive to the office and had made some disparaging remarks about Hawkins to Lynn Solte, Hawkins' secretary at Easter Seals. Ms. Nudelman did not make such remarks to Ms. Solte. When Ms. Solte told Hawkins that Ms. Nudelman had not made any disparaging remarks about him to her, Hawkins laughed and said, "Welcome to politics."

    
    

46. When Ms. Nudelman was dismissed in November, 1991 she told Terry Murphy about her allegations of sexual harrassment by Hawkins. Mr. Murphy told Hawkins about the allegations.

47. Ms. Nudelman tolerated Hawkins' behavior because she was afraid she would be fired if she did not.

    
    

48. Mary Difede Delpino was employed as a secretary in Hawkins' office from October, 1990 to May, 1992.

    
    

49. On at least one occasion, Hawkins told Ms. Delpino, "if I wasn't in this wheelchair, I would jump you right now."

    
    

50. Hawkins frequently referred to Ms. Delpino as "sin tetas" which is Spanish for "without breasts." Ms. Nudelman witnessed Hawkins making such comments on occasion.

    
    

51. On at least one occasion, Hawkins said to Ms. Delpino, "the things that I can teach you" while he made twisting motions with his hands and wiggling his tongue at her.

    
    

52. When Ms. Delpino was walking in front of Hawkins, he would sometime say, "it must be jelly 'cause jam don't shake like that." Sylvia Farina, an employee for the County Commission, heard Hawkins make such a remark to Ms. Delpino while Ms. Delpino was walking in front of Hawkins.

    
    

53. On one occasion, when Ms. Delpino was in Hawkins' office, he asked her to look at something, and, while her attention was diverted, jabbed her in the breast with a pencil. When she came out of his office, she was upset and told a co-worker, Iraella Abello, that he had poked her in the breast with a pencil.

    
    

54. On at least one occasion, Mr. Hawkins called Ms. Delpino into his office and asked her to pick up a bullet which had fallen from his desk onto the floor. Ms. Delpino picked up the bullet and before she left the office, Hawkins had knocked the bullet off his desk and again asked her to pick it up. Ms. Delpino felt that he did this so that he could look down her blouse as she bent to pick the bullet up. When the investigator for the Commission on Ethics asked him if that was the purpose for asking Ms. Delpino to pick up the bullet, Hawkins replied that Ms. Delpino did not have anything down her blouse to look at.

    
    

55. At the final hearing Hawkins testified that his desk was specially built and it would have been impossible for him to look down Ms. Delpino's blouse as she bent down. Previously when Hawkins was questioned by the Assistant State Attorney, the Ethics Commission investigator, and the Advocate concerning the bullet incident, Hawkins did not mention that his desk would have prevented him from looking down Ms. Delpino's blouse. I find that Hawkins testimony about his inablility to see because of the desk not to be credible.

    
    

56. Ms. Delpino tolerated Hawkins' behavior because she was afraid she would be fired if she did not.

    
    

57. Prior to Ms. Delpino leaving Hawkins's employ she complained to employees of other County Commissioners about Hawkins' inappropriate behavior toward her.

    
    

58. Marcia Fernandez-Morin was employed as an Executive Secretary in Hawkins' office from late 1988 until sometime in August, 1990.

    
    

59. Hawkins frequently made comments concerning Ms. Fernandez-Morin's body. He told her that she "looked good" but said it in a lewd and leering

    manner. He also commented that she had a "good butt," and using his hands to gesture, indicated that she had an hourglass figure. At a time when she had lost weight, Hawkins referred to her as "sin tetas."

    
    

60. Hawkins would call Ms. Fernandez-Morin late at night. More than once he told her that she seemed to be out of breath and asked her if she had been having sex.

    
    

61. Ms. Fernandez-Morin tolerated Hawkins' behavior out of fear of retaliation by Hawkins.

    
    

62. Ms. Fernandez-Morin was fired from Hawkins' employ.

    
    

63. Hawkins' staff, including Ms. Nudelman, Ms. Delpino, and Ms.

    Fernandez-Morin, served at his pleasure, meaning that he could fire them without cause.

    
    

64. Hawkins' lewd and sexual comments and inappropriate actions were univited and unwanted by Ms. Nudelman, Ms. Delpino, and Ms. Fernandez-Morin.

    
    

65. In October, 1992, Terry Murphy, Hawkins' assistant, was interviewed by Assistant State Attorney Joe Centorino on the issue of alleged sexual improprieties regarding Hawkins and his female staff members. Mr. Murphy immediately advised Hawkins about the nature of the interview.

    
    

66. Yanette Bravo and Francis Pons were hired to work in Hawkins' office in June 1992 and June 1993, respectively. They testified that Hawkins never made inappropriate remarks to them while they were employed by him.

    
    

67. Debra Mayo has known Hawkins since 1978 and was his legislative aide in 1983. Until recently she had been his escort for political functions when Hawkins was between lady friends. Hawkins never made lewd or direct sexual comments to her.

    
    

68. Lynn Solte, has been Hawkins' secretary at Easter Seals for over three years. On occasion Hawkins has made remarks to her of a sexual nature which she considered to be improper.

    
    

69. Before the allegations that are the subject matter of this proceeding, Mr. Hawkins had never been the subject of a Commission on Ethics complaint.

    
    

    CONCLUSIONS OF LAW

    
    

70. 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").

    
    

71. The burden of proof, absent a statutory directive to the contrary, is on the party asserting the affirmative of the issue in 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

    249 (Fla. 1st DCA 1977). In this proceeding it is the Commission through the Advocate that is asserting the affirmative: that Hawkins violated Sections

    112.3148(2)(a) and 112.313(6), Florida Statutes. Therefore, the burden of establishing the elements of Hawkins' alleged violations is on the Commission.

    
    

72. Section 112.3148(2)(a), Florida Statutes (1989) provides as follows:

    
    

    Each elected public officer and each appointed public officer who is required by law, pursuant to s. 8 Art. II of the State Constitution, to file a full and public disclosure of his financial interests shall file a statement containing a list of all contributions received by him or on his behalf, if any, and expenditures from, or disposition made of, such contributions by such officer which are not otherwise required to be reported by chapter 106, with the names and addresses of persons making such contributions or receiving payment or distribution from such contributions and the dates thereof. The statement shall be sworn to by the elected

    public officer as being a true, accurate, and

    total listing of such contributions and expenditures.

    
    

73. "Contribution" is defined in Section 112.3148(1)(c), Florida Statutes (1989) as:

    
    

    1. ny gift, donation, or payment of money the value of which is in excess of $100 to any public officer or to any other person on the public officer's behalf. Any payment in excess of $100 to a dinner, barbeque, fishfry, or other such event shall likewise be deemed a 'contribution.'

       . . .

       
       

74. As a Dade County Commissioner, Hawkins was an elected officer subject to the requirements of Part III, Chapter 112, Florida Statutes.

    
    

75. In 1990, the value of trips, including transportation, meals, and accomodations, in excess of $100 were required to be disclosed. See CEO 90-72. The value of the trip to New Orleans which Mr. Dunn provided to Hawkins exceeded

    $100. Although Carolyn Hawkins testified that she had found a special fare of

    $100 for the air transportation, the value of the trip would still be in excess of $100 because the cost of the meal and the ground transportation was not included in the special fare. There was no evidence as to the value of the meal or the cost of the limousine service; however they did have some value and whatever amount it was would have put the value of the trip to New Orleans in excess of $100.

    
    

76. Hawkins argues that Hawkins did not violate Section 112.3148, Florida Statutes because he relied on his mother's belief that the trip did not have to be reported and because he promptly amended his Form 7 to include the trip once he was advised that the trip did have to be reported. The Executive Director of the Commission on Ethics did not tell Mrs. Hawkins that the trip did not have to be reported; thus, Mrs. Hawkins' belief that the trip did not have to be reported resulted from a misunderstanding of her conversation with Ms. Williams. Although, Hawkins did amend his Form 7 to include the trip, it is not a defense to a violation of the statute, but rather goes to mitigation of the penalty.

77. The Advocate has established that Hawkins did violate Section 112.3148(2)(a), Florida Statutes, (1989).

    
    

78. Section 112.313(6), Florida Statutes, provides as follows:

    
    

    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.

    
    

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

    
    

    "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.

    
    

80. In order to establish a violation of Section 112.313(6), Florida Statutes, the following elements must be proved:

    
    

    1. The Respondent must be either a public officer or a public employee.

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

    3. The Respondent's actions in element two must

       have been done with an intent to secure a special privilege, benefit, or exemption for himself

       or others.

    4. The Respondent's action and intent in elements

       two and three 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.

    
    

81. Hawkins was a public officer subject to Part III of Chapter 112, Florida Statutes. By using county staff and equipment to type Seitlin correspondence and make calls relating to Seitlin business, Hawkins was using resources within his trust as a County Commissioner to benefit his employer, Seitlin.

    
    

    Seitlin

    
    

82. Hawkins was basically aware of the Code of Ethics, which included prohibitions on misuse of public office. He had an office at Seitlin and secretarial support there but rarely used his Seitlin office. He knew that Seitlin work should be conducted using Seitlin resources and not County resources. Thus, it can only be concluded that Hawkin's use of County resources

    to conduct Seitlin business was done with a wrongful intent and that such actions were inconsistent with his public duties as a County Commissioner. The Advocate has proven by a preponderance of the evidence that Hawkins violated Section 112.313(6), Florida Statutes, as it relates to the use of County employees and equipment to conduct Seitlin business.

    
    

    CHI

    
    

83. The Advocate has failed to establish by a preponderance of the evidence that Hawkins violated Section 112.313(6), Florida Statutes, as it relates to the allegations involving CHI. Hawkins' purpose in asking Mr. Johnson to look at CHI's insurance files was to determine whether CHI was paying too much for its insurance coverage. Hawkins' mother was a member of CHI's board and asked him to look into the matter on behalf of CHI. Although Hawkins requested Mr. Johnson to review the insurance and asked Mr. Arnao to make the records available to Mr. Johnson, the evidence does not support a finding that Hawkins did so with an intent to benefit either himself or Seitlin but rather to respond to a legitimate request from a CHI board member. Thus, Hawkins had no wrongful intent and therefore, did not violate Section 112.313(6).

    
    

    Easter Seals

    
    

84. The advocate has failed to establish that Hawkins violated Section 112.313(6), Florida Statutes, relating to the allegations concerning Easter Seals. The evidence did not establish that Hawkins told the Easter Seals representatives to come to the budget meeting and make a request for $75,000. Mr. Fox testified that Mr. Hawkins did not call him but that someone identifying himself as a member of Hawkins' staff had called. There was no testimony that Hawkins had instructed any staff member to make the call to Mr. Fox.

    
    

85. The Advocate argues that because Hawkins knew that the request from Easter Seals would be classified as a request for capital funds rather than operating funds means that he somehow negotiated the amount and use of the funds for Easter Seals. Easter Seals had made individual requests to the County Commission for capital funds in the past. Mr. Haidos had called Hawkins' staff on the day of the budget meeting to discuss the request. It was Mr. Murphy's responsibility to coordinate the budget matters. Whatever discussion concerning the specifics of the request would have been between Mr. Murphy and Mr. Haidos.

    
    

86. The budget hearings were a matter of public knowledge. CBO's did make individual requests for funding at the budget meetings. Easter Seals could make an individual request for funds just like other CBO's. Although Easter Seals did have an agreement with CCDH not to make individual requests, Easter Seals viewed that agreement not to prohibit a request for capital funds. Easter Seals did not secure a special privilege by coming to the budget meeting and requesting funds. It could have done so whether anyone from Hawkins' office told the chairman of the Easter Seals Board to come and request funds.

    
    

    Harrassment of Employees

    
    

87. The Advocate has established by a preponderance of the evidence that Hawkins violated Section 112.313(6), Florida Statutes, regarding the allegations of sexual harrassment against Ms. Nudelman, Ms. Fernandez-Morin, and Ms. Difede Delpino. Hawkins subjected these employees to repeated and continuous lewd and sexually oriented remarks and behavior.

88. Infliction of sexually charged remarks, gestures, and actions on subordinate employees has supported findings of violation of the Misuse of Office provision in a number of cases before the Commission on Ethics. See, In Re: Alfred Welch, 14 FALR 4274 (Ethics 1992); In Re: E. "Walt" Pellicer, 9 FALR 4387 (Ethics 1987); In Re: L.H. Lancaster, 5 FALR 1567-A (Ethics 1983); and In Re: Raymond Bruner, 2 FALR 1034 (Ethics 1980).

    
    

89. Hawkins had the authority to fire the employees and they put up with his unwanted comments and actions because they were afraid they would lose their jobs. This implicit coercion constitutes a use of office.

    
    

90. Hawkins argues that if Hawkins just makes lewd and vulgar comments to the female employees that is not a violation of Section 112.313(6) because Hawkins is not getting any benefit from making such comments. The argument is incredulous. Just as a person who makes obscene telephone calls gets sexual gratification from just talking, the only conclusion that can be drawn from Hawkins sexual comments and lewd actions is that he was doing it for his own sexual gratification. Additionally, Hawkins did more than just talk. He punched one employee in the bosom with a pencil; dropped a bullet from his desk so that he could look down an employee's blouse; requested an employee to rub him with liniment; and asked an employee to come to his house and join him in bed. These actions are inconsistent with the proper performance of his duties as a County Commissioner. They were done for his own gratification and with a wrongful intent.

    
    

    Penalties

    
    

91. Section 112.317 sets out possible penalties for Ethics law violations which range from public censure and reprimand, to restitution, to removal from office and civil penalties up to $10,000.

    
    

92. The failure to report the New Orleans trip resulted from Mrs. Hawkins' misunderstanding of the conversation she had with the Executive Director for the Commission on Ethics. Hawkins was relying on his mother's belief that the trip did not have to be reported. I recommend that a civil penalty of $100 be imposed for the violation of Section 112.3148(2)(a), Florida Statutes (1989).

    
    

93. For the violation of Section 112.313(6), Florida Statutes, as it relates to the use of County personnel and equipment to perform Seitlin business, I recommend a civil penalty of $500.

93. For the violation of Section 112.313(6), Florida Statutes, as it relates to the harrassment allegations, I recommend a civil penalty of $7,500 and public censure and reprimand.

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

Lawrence R. Hawkins violated Section 112.3148(2)(a), Florida Statutes (1989), violated Section 112.313(6), Florida Statutes, as it relates to the allegations concerning the use of County employees and equipment for Seitlin business and the harrassment of three female employees, did not violate Section 112.313(6), Florida Statutes, as it relates to the CHI allegations, and did not violate Section 112.313(6), Florida Statutes as it relates to the Easter Seals

allegations, and recommending the imposition of a civil penalty of $8,100.00, and public censure and reprimand as described above.

DONE AND ENTERED this 28th day of September, 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 28th day of September, 1995.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-4715EC

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. Respondent

1. Paragraphs 1-2: Rejected as unncessary.

2. Paragraphs 3-6: Accepted in substance.

The New Orleans Trip

1. Paragraphs 1-5: Accepted in substance.

2. Paragraph 6: Rejected as unnecessary.

3. Paragraphs 7-14: Accepted in substance.

4. Paragraph 15: Rejected as subordinate to the facts found.

Seitlin Insurance

1. Paragraph 1: The first sentence is accepted in substance. The remaining is rejected as unnecessary detail.

2. Paragraph 2: Accepted in substance.

3. Paragraph 3: Accepted.

4. Paragraphs 4-6: Accepted in substance.

CHI

1. Paragraphs 2-6: Accepted in substance.

2. Paragraph 7: Rejected as irrelevant to the extent that it refers to

   Hartley and Arnao because Mrs. Hawkins as a member of the Board of Directors wanted the insurance coverage reviewed.

3. Paragraph 8: The first sentence is rejected because a board member wanted it reviewed. The second sentence is accepted in substance.

4. Paragraph 9: Accepted.

5. Paragraphs 10-11: Accepted in substance.

6. Paragraph 12: Rejected as subordinate to the facts found.

7. Paragraphs 13-14: Rejected as unnecessary detail.

8. Paragraphs 15-16: Accepted in substance.

9. Paragraphs 17-19: Rejected as subordinate to the facts found.

Respondent's Intent

1. Paragraphs 1-2: Accepted in substance.

2. Paragraph 3: The first sentence is accepted in substance as that is what he testified but rejected as not supported by the evidence as it relates to correspondence. The remainder is rejected as subordinate to the facts found.

3. Paragraph 4: The second sentence is accepted in substance. The remainder is rejected as unnecessary.

4. Paragraph 5: The first sentence is accepted. The remainder is rejected as unnecessary.

5. Paragraphs 6-8: Rejected as unnecessary.

6. Paragraph 9: Rejected as subordinate to the facts found.

7. Paragraph 10: Accepted in substance.

8. Paragraph 11: Rejected as subordinate to the facts found.

9. Paragraph 12-13: Accepted in substance.

10. Paragraphs 14-17: Rejected as subordinate to the facts found.

11. Paragraph 18: Rejected as not supported by the greater weight of the evidence.

Easter Seals

1. Paragraphs 1-12: Accepted in substance.

2. Paragraph 13: Rejected as unnecessary.

3. Paragraphs 14-17: Accepted in substance.

4. Paragraphs 18-19: Rejected as irrelevant.

5. Paragraph 20: Accepted in substance.

6. Paragraph 21: Rejected as irrelevant.

7. Paragraph 22: Accepted in substance.

8. Paragraph 23-24: Rejected as subordinate to the facts found.

9. Paragraph 25: Accepted in substance.

10. Paragraph 26: The first three sentences are accepted in substance. The remainder is rejected to the extent that Easter Seals had asked for capital funds. The evidence is not clear if that request was during the hearings on the County General Revenue Budget.

11. Paragraph 27: The first sentence is accepted in substance. The remainder is subordinate to the facts found.

12. Paragraph 28: Accepted in substance.

13. Paragraph 29: Rejected as unnecessary.

14. Paragraph 30: Rejected as irrelevant.

15. Paragraph 31: Rejected as not supported by the greater weight of the evidence because Hawkins had directed staff in the past to work with Easter Seals on their request for funds.

16. Paragraph 32: The first sentence is accepted. The remainder is rejected as subordinate to the facts found.

17. Paragraphs 33-35: Rejected as not supported by the greater weight of the evidence.

Respondent's Harassment of Subordinate Employees

1. Paragraphs 1-19: Accepted in substance.

2. Paragraph 20: Rejected as unnecessary.

3. Paragraphs 23-26: Accepted in substance.

4. Paragraph 27: The first and second sentences are accepted in substance. The remainder is rejected as unnecessary.

5. Paragraph 28: Accepted.

6. Paragraph 29: Rejected as constituting argument.

Credibility of Terry Murphy and Kevin Stein

1. Paragraph 1: The first part of the sentence is accepted in substance. The remainder is rejected as subordinate to the facts found.

2. Paragraphs 2-6: Rejected as unncessary.

3. Pararagraph 7: Accepted in substance.

Credibility of Rashel Nudelman, Mary Delpino, and Marcia Fernandez-Morin

1. Paragraphs 1-2: Accepted in substance.

2. Paragraph 3: There is no paragraph 3.

3. Paragraphs 4-7: Accepted in substance.

Respondent's Credibility

1. Paragraphs 1-3: Rejected as constituting argument.

2. Paragraphs 4-5: Accepted in substance.

3. Paragraph 6: Accepted in substance as to some allegations and as set forth in the Recommended Order.

Respondent's Intent

1. Paragraph 1: Accepted.

2. Paragraph 2: Rejected that his testimony constituted an admission.

3. Paragraph 3: Accepted in substance.

4. Paragraph 4: Rejected as constituting a conclusion of law. Respondent's Proposed Findings of Fact.

1. Paragraph 1: The first three sentences are accepted in substance. The remainder is rejected as irrelevant.

2. Paragraph 2: The first sentence is accepted in substance. The second sentence is rejected as unnecessary.

3. Paragraph 3: Accepted in substance.

4. Paragraph 4: Accepted.

5. Paragraph 5: Accepted in substance.

6. Paragraph 6: Rejected as irrelevant because Section 112.3148(2) deals with reporting contributions not just gifts.

7. Paragraph 7: Accepted.

8. Paragraphs 8-9: Accepted in substance.

9. Paragraph 10: The first sentence is accepted in substance. The remainder is rejected as subordinate to the facts found because whether the air fare was $100 or $198, the trip was still valued over $100.

10. Paragraph 11: Accepted in substance.

11. Paragraph 12: Rejected as not supported by the greater weight of the evidence.

12. Paragraph 13: Accepted in substance.

13. Paragraph 14: The first sentence is rejected as irrelevant. The second sentence is accepted in substance.

14. Paragraph 15: Accepted in substance.

15. Paragraph 16: The first two sentences are accepted in substance. The third sentence is rejected as subordinate to the facts found.

16. Paragraphs 17-18: Accepted in substance.

17. Paragraph 19: The first sentence is accepted in substance. The second sentence is rejected based on Mr. Hartley's testimony.

18. Paragraphs 20-22: Accepted in substance.

19. Paragraph 23: The first part of the first sentence is accepted in substance. The second part of the first sentence is rejected. The reason Hartley let Johnson review the insurance was to maintain a good relationship with Hawkins. The second sentence is accepted in substance.

20. Paragraphs 24-26: Accepted in substance.

21. Paragraph 27: The first sentence is accepted in substance. The remainder is rejected as in conflict with Hawkins testimony at the final hearing that he was "very, very, very rarely" at the Seitlin office.

22. Paragraph 28: The last sentence is rejected as not supported by credible testimony. The remainder is rejected as subordinate to the fact that he did use it on some occasions when he asked a County employee to type on the letterhead.

23. Paragraph 29: Rejected as subordinate to the facts found.

24. Paragraph 30: Accepted in substance.

25. Paragraph 31: The first sentence is rejected as not supported by credible evidence. The last sentence is accepted in substance to the extent that it refers to meetings in which they discussed Seitlin business.

26. Paragraph 32-34: Accepted in substance.

27. Paragraph 35: Rejected as subordinate to the facts found.

28. Paragraph 36: The first sentence is accepted in substance. The second sentence is rejected as subordinate to the facts found.

29. Paragraph 37: Accepted in substance.

30. Paragraph 38: The first sentence is accepted in substance. The second sentence is rejected as unnecessary.

31. Paragraph 39: Accepted that on September 19 Hawkins was being considered for the position of executive director for Easter Seals. The remaining is rejected. Fox testified that he was called by a staff person in Hawkins' office. Hawkins testified that he had been interviewed prior to the budget hearing.

32. Paragraph 40: Accepted to the extent Hiados went to the meeting. The remainder is rejected as subordinate to the facts found.

33. Paragraph 41: Rejected as subordinate to the facts found.

34. Paragraphs 42-45: Accepted in substance.

35. Paragraph 46: Rejected as not supported by the greater weight of the evidence. Ms. Goode sent him a note during the budget hearing.

36. Paragraph 47: The two sentences are accepted in substance. The remainder is rejected as subordinate to the facts found.

37. Paragraphs 48-50: Rejected as subordinate to the facts found.

38. Paragraph 51: The first sentence is accepted in substance. The second and third sentences are rejected as subordinate to the facts found. The first part of the last sentence is rejected as not based on credible evidence. The remainder is rejected as subordinate to the facts found.

39. Paragraphs 52-54: Accepted in substance.

40. Paragraph 55: The sixth sentence is accepted in substance. The seventh and eight sentences are rejected as not supported by credible evidence. The remainder is rejected as subordinate to the facts found.

41. Paragraph 56: The first sentence is rejected to the extent that it implies that Ms. Nudelman made such remarks. The last sentence is rejected as irrelevant.

42. Paragraph 57: Rejected as irrelevant.

43. Paragraph 58: Hawkins testimony is rejected as not credible.

44. Paragraph 59: Having judged the credibility of the wintesses, it is rejected.

45. Paragraph 60: Accepted that Ms. Difede was hired in 1990. The remainder is rejected as irrelevant.

46. Paragraph 61: Accepted in substance.

47. Paragraphs 62-64: Rejected as subordinate to the facts found.

48. Paragraph 65: Hawkins testimony is rejected as not credible.

49. Paragraph 66: The first and third sentences are accepted in substance. The second sentence is rejected as irrelevant. The fourth and fifth sentences are rejected as not supported by credible evidence.

50. Paragraph 67: Having judged the credibility of the witnesses, it is rejected.

51. Paragraphs 68-69: Accepted in substance.

52. Paragraph 70: Hawkins's testimony as it relates to lewd comments is rejected as not credible.

53. Paragraph 71: The first sentence is accepted in substance. Rejected as not supported by credible evidence.

54. Paragraph 72: The first sentence is rejected as not supported by credible evidence. The second sentence is rejected as irrelevant.

55. Paragraph 73: Rejected as constituting argument.

56. Paragraph 74: Rejected as subordinate to the facts found.

COPIES FURNISHED:

Virlindia Doss, Esquire Advocate For the Florida

Commission on Ethics Alexander Building, Suite 208 Koger Executive Center

Tallahassee, Florida 32399-1050

George T. Yoss, Esquire Raoul Cantero, Esquire

2601 South Bayshore Drive, Suite 1600

Miami, Florida 33133

Carrie Stillman Complaint Coordinator Commission on Ethics Post Office Box 15709

Tallahassee, Florida 32317-5709

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.

================================================================= AGENCY FINAL ORDER

=================================================================

BEFORE THE STATE OF FLORIDA COMMISSION ON ETHICS

In re LAWRENCE R. HAWKINS, Complaint No. 93-75

DOAH Case No. 94-4715EC

Respondent. Final Order No. 95-28

/

FINAL ORDER AND PUBLIC REPORT

This matter came before the Commission on Ethics on the Recommended Order rendered in this matter on September 28, 1995 by the Division of Administrative Hearings (DOAH) [a copy of which is attached hereto and incorporated herein by reference] . The Hearing Officer recommends that the Commission enter a final order and public report finding that the Respondent violated Section 112.3148(2)(a), Florida Statutes, by failing to report, as a gift, a trip to New Orleans provided by Mr. Dunn, and Section 112.313(6), Florida Statutes, relative to Respondent's use of Dade County employees and equipment for Seitlin business and his harassment of three female County employees. As to these violations, the hearing Officer recommended that a civil penalty of $8,1000.00 be imposed upon the Respondent, and that he be publicly censured and reprimanded. She also recommends that the Commission find that Respondent did not violate Section 112.313(6) , as it relates to the CHI and the Easter Seals allegations, and dismiss the Complaint as to these allegations.

BACKGROUND

This matter began with the filing of a complaint by Joseph M. Centorino, alleging that Respondent, as a member of the Dade County Commission, had violated the Code of Ethics for Public Officers and Employees. The allegations were found to be legally sufficient to allege a possible violations of Sections 112.313(4), 112.3148(2)(a), 112.313(6), and 112.3143(3), Florida Statutes, and

Commission staff undertook a preliminary investigation to aid in the determination of probable cause. On June 7, 1994, the Commission on Ethics issued an order finding probable cause to believe that the Respondent had violated Section 112.3143(2)(a) by failing to report a trip to New Orleans on his 1990 financial disclosure; Section 112.313(6) by using his position to try

to generate business for Seitlin and Company, an insurance company which employed him as a paid consultant; Section 112.313(6) by using public resources in furtherance of his work for Seitlin; Section 112.313(6) by using his position to secure a special benefit for the Dade County Easter Seals Society; and Section 112.313(6) by using his position to sexually harass his subordinate female employees. The formal hearing before the Hearing Officer was scheduled for May 22-26, 1995. The Recommended Order was transmitted to the Commission and the parties on September 28, 1995, and the parties were notified of their right to file exceptions to the recommended order with the Commission by October 18, 1995, in accordance with Rule 34-5.023(1), Florida Administrative Code.

Respondent's exceptions, which limited themselves to the amount of the recommended penalties, were filed with the Commission on October 17, 1995. However, the complete record of this matter under Section 120.57(1)(b)6, Florida Statutes, was not placed before the Commission. The Respondent did not appear at the Commission's final consideration of this matter to argue the Commission's penalty recommendation.

Having reviewed the Recommended Order, Respondent's exceptions, and having considered the arguments of the Advocate made before the Commission at its final consideration of this matter, the Commission makes the following findings, conclusions, rulings, and recommendations:

STANDARDS OF REVIEW

Under Section 120.57(1)(b)10, Florida Statutes, an agency may reject or modify the conclusions of law and interpretations of administrative rules contained in the recommended order. However, the agency may not reject or modify findings of fact made by the Hearing Officer unless a review of the entire record demonstrates that the findings were not based on competent, substantial evidence or that the proceedings on which the findings were based did not comply with the essential requirements of law. See, e.g., Freeze v. Dept. of Business Regulation, 556 So 2d 1204 (Fla. 5th DCA 1990); and Florida Department of Corrections v. Bradley, 510 So.2d 1122 (Fla. 1st DCA 1987).

Competent, substantial evidence has been defined by the Florida Supreme Court as such evidence as is "sufficiently relevant and material that a reasonable mind would accept it as adequate to support the conclusions reached." DeGroot v.

Sheffield, 95 So.2d 912, 916 (Fla. 1957)

The agency may not reweigh the evidence, resolve conflicts therein, or judge the credibility of witnesses, because those are matters within the sole province of the hearing officer. Heifetz v. Dept. of Business Regulation, 475 So.2d 1277, 1281 (Fla. 1st DCA 1985). Consequently, if the record of the DOAH proceedings discloses any competent, substantial evidence to support a finding of fact made by the Hearing Officer, the Commission is bound by that finding.

Similarly, Section 120.57(1)(b)10 prohibits the Commission from increasing or decreasing the recommended penalty without reviewing the complete record and stating with particularity its reasons therefor in the order, by citing to the record to justify its action.

RULINGS ON RESPONDENT'S EXCEPTIONS

1. The Respondent excepts to the $100 civil penalty recommended by the Hearing Officer for violating Section 112.3148(2)(a), Florida Statutes, which required him to timely report a free trip to New Orleans in 1990. Respondent argues that the Commission generally has imposed light fines for failure to

   report, especially where the Respondent relied on the advice of others in doing so. He relies upon In re Hildreth, 16 F.A.L.R. 4085 (Ethics 1994) to support his argument.

   
   

   Respondent's exception is rejected. Apart from the fact that the Commission, pursuant to Section 112.324(7)(d), Florida Statutes, will make its recommendation to the Governor for his imposition of the recommended penalty, and the mitigation of the penalty in Hildreth resulted from Hildreth's reliance on the advice of the City Attorney, not on that of his mother, as to whether his acceptance of the country club membership had to be disclosed, because the Respondent did not provide the Commission with a complete record of the hearing before the Hearing Officer, the Commission is without the authority to modify the recommended penalty as to Respondent's violation of Section 112.3148(2)(a).

   
   

   It has been held that the burden of furnishing a transcript is on the party seeking review and, if the party does not, exceptions to findings of fact can be dismissed solely on that basis. See, e.g., Rabren v. Department of Professional Regulation, 568 So.2d 1283 (Fla. 1st DCA 1990); Florida Department of Corrections v. Bradley, 510 So.2d 1122 (Fla. 1st DCA 1987); and Booker Creek Preservation. Inc. v. Department of Environmental Regulation, 415 So.2d 750 (Fla. 1st DCA 1982). The Commission also has previously adopted this position. In re George Costage, 15 F.A.L.R. 1201, 1202 (Commission on Ethics Final Order entered December 8, 1992) _Moreover, the Commission has adopted Rule 34- 5.023(3,) F.A.C., which provides as follows:

   
   

   It is the burden of the person filing the exception to insure that the entire record has been received by the Commission at least three weeks prior to the date of the Commission's final hearing.

   
   

   Inasmuch as the Respondent has failed to provide the entire record of the proceedings before the Division of Administrative Hearings to the Commission, the Commission has no authority to consider decreasing the amount of the penalty recommended.

   
   

2. Respondent also excepts to the Hearing Officer's recommendation of a

$7,500 civil penalty and public censure and reprimand for his violating Section 112.313(6) by subjecting three employees to repeated and continuous lewd and sexually oriented remarks and behavior. He argues that the Hearing Officer's recommendation was based on her understanding that the maximum statutory monetary penalty was $10,000. He argues that inasmuch as the alleged conduct concerning the sexual harassment occurred between 1988 and 1992, when the maximum statutory fine was $5,000, and Section 112.317(1)(a)(6) was amended in 1994 to raise the maximum penalty to $10,000, the maximum monetary penalty that the Commission can recommend for the alleged violation of Section 112.313(6) is

$5,000. In support of his assertion, Respondent cites Willner v. Department of Professional Regulation, Board of Medicine, 563 So.2d 805, 806 (Fla. 1st DCA 1990), review denied, 576 So.2d 295 (Fla. 1990) in which the Court, in part, held-that a 1986 amendment that increased the amount of the maximum fine which could be assessed by the Board of Medicine for violation of Section 458.331, Florida Statutes, could not be utilized since all the violations for which the physician was found guilty occurred prior to the effective date of the amendment. The maximum fine which lawfully could be imposed in that case was

$1,000 per violation, the maximum amount allowable before the effective date of the amendment. See, also, Kurachek v. Department of Professional Regulation, Board of Dentistry, 588 So.2d 3 (Fla. 2d DCA 1991). Therefore, the Commission

accepts Respondent's exception only to the extent that the Commission concludes that the maximum amount that the Hearing Officer could recommend imposing against the Respondent under Section 112.317, Florida Statutes (1991), was

$5,000, rather than the $10,000 found by the Hearing Officer. However, the Commission does not accept Respondent's further contention that because the Hearing Officer recommended a fine of $7,500, she intended that the Respondent be fined 3/4 of the maximum, which, using $5,000 as the maximum, would be

$3,750.

Because the maximum penalty that the Commission can recommend that the Governor impose against the Respondent is $5,000 and because the Respondent has not provided a complete record of the proceedings for the Commission's consideration which would permit the Commission to reduce the recommended penalty further, the Commission determines, as a matter of law, it must reduce the recommended penalty for Respondent's violation of Section 112.313 (6), Florida Statutes, as it relates to his harassment of three female County employees, to $5,000, the maximum penalty permitted under Section 112.317, Florida Statutes (1991)

FINDINGS OF FACT

The Findings of Fact set forth in the Recommended Order are approved, adopted, and incorporated herein by reference.

CONCLUSIONS OF LAW

1. The Conclusions of Law set forth in the Recommended Order are approved, adopted, and incorporated herein by reference.

   
   

2. Accordingly, the Commission on Ethics concludes that the Respondent, as a member of the Dade County Commission, violated Section 112.3148(2)(a), Florida Statutes, by failing to report, as a gift, a trip to New Orleans provided by Mr. Dunn, and Section 112.313(6), as alleged, relative to Respondent's use of Dade County employees and equipment for Seitlin business and harassment of three female County employees. Furthermore, the Commission concludes that Respondent did not violate Section 112.313(6), as alleged, relative to CHI and Easter Seals, and dismisses the complaint as to these allegations.

RECOMMENDED PENALTY

The Hearing Officer's recommendation of $100.00 as a civil penalty for Respondent's violation of Section 112.3148(2)(a) and $500.00 for his violation of Section 112.313(6) as it relates to his use of County personnel and equipment to perform Seitlin business is accepted. However, for the reasons noted in the Commission's rulings on Respondent's exception No. 2 above, the Hearing Officer's recommendation of a $7,500.00 civil penalty is reduced to $5,000.00.

In consideration of the foregoing and pursuant to Sections 112.317 and 112.324, Florida Statutes, the Commission recommends that the Governor impose a civil penalty upon the Respondent, Lawrence R. Hawkins, in the total amount of

$5,600, and that he receive a public censure and reprimand relative to the allegations of sexual harassment of three County employees.

ORDERED by the state of Florida Commission on Ethics this 30th day of November, 1995.

December 5, 1995 Date Rendered

William J. Rish Chairman

CC: Mr. Raoul G. Cantero, III, Attorney for Respondent Ms. Virlindia Doss, Advocate for the Commission Honorable Susan B. Kirkland, Hearing Officer Division of Administrative Hearings

Mr. Joseph M. Centorino, Complainant

THIS ORDER CONSTITUTES FINAL AGENCY ACTION. ANY PARTY WHO IS ADVERSELY AFFECTED BY THIS ORDER HAS THE RIGHT TO SEEK JUDICIAL REVIEW UNDER SECTION 120.68, FLORIDA STATUTES, BY FILING A NOTICE OF ADMINISTRATIVE APPEAL PURSUANT TO RULE 9.110, FLORIDA RULES OF APPELLATE PROCEDURE, WITH THE CLERK OF THE COMMISSION ON ETHICS, P.O. DRAWER 15709,TALLAHASSEE, FLORIDA 32317-5709

(physical address at 2822 Remington Green Circle, Suite101); AND BY FILING A COPY OF THE NOTICE OF APPEAL ATTACHED TO WHICH IS A CONFORMED COPY OF THE ORDER DESIGNATED IN THE NOTICE OF APPEAL ACCOMPANIED BY THE APPLICABLE FILING FEES WITH THE APPROPRIATE DISTRICT COURT OF APPEAL. THE NOTICE OF ADMINISTRATIVE APPEAL MUST BE FILED WITHIN 30 DAYS OF THE DATE THIS ORDER IS RENDERED.

Docket for Case No: 94-004715EC

Orders for Case No: 94-004715EC