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STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

In Re: MIRIAM ALONSO CASE NO. 94-5524EC

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RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Susan B. Kirkland, scheduled a formal hearing in this case. The parties agreed that the evidentiary hearing be cancelled and that a Recommended Order be issued based on stipulated facts, and depositions and a tape recording submitted by the parties. Oral argument was held on December 30, 1994, by telephonic conference.

APPEARANCES

For the Advocate: Virlindia Doss

Assistant Attorney General Office of the Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050

For Respondent: Charles Gener, Esquire

4100 West Flagler Street, Suite K Miami, Florida 33134-1640

STATEMENT OF THE ISSUES

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

PRELIMINARY STATEMENT

A Complaint was filed against Respondent with the Florida Commission on Ethics (Commission) on May 7, 1993. On September 8, 1993, the Commission found Probable Cause to believe that Respondent violated Section 112.313(6), Florida Statutes by obtaining or attempting to obtain special law enforcement consideration regarding burglary or other unlawful activity against her daughter, her daughter's family, and/or her daughter's residence, through use or attempted use of her official position or property or resources within her trust, or through performance of her official duties. On September 29, 1994, the case was forwarded to the Division of Administrative Hearings for assignment to a hearing officer.

The parties filed a Prehearing Stipulation in which they agreed to a number of facts and stipulated to certain evidence to be used in lieu of conducting an evidentiary hearing. The evidence submitted is as follows:

1. Tape recording of 911 Emergency calls received February 24, 1993, regarding the break-in of Respondent's daughter's house.

2. Deposition of Miriam Alonso.

3. Deposition of Calvin Ross.

The parties made oral arguments on December 30, 1994 and agreed to submit proposed recommended orders by January 9, 1995. The Advocate submitted her proposed recommended order on January 9, 1995. The Respondent submitted a proposed recommended on January 10, 1995 and an unopposed Motion to Accept Proposed Final Order Late. The motion is GRANTED. The parties' proposed findings of fact are addressed in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. At all times pertinent to this proceeding, Respondent, Miriam Alonso (Alonso), served as an elected member of the Miami City Commission.

   
   

2. On February 24, 1993, the residence of Miriam Alonso-Miles, Alonso's daughter, was broken into. Judy Gonzalez, a former neighbor of Ms. Alonso- Miles, had been baby-sitting Ms. Alonso-Miles' three children, ages one, three, and five. She took them for a walk at about 7:10 p.m. and returned shortly thereafter, when she discovered two men apparently in the process of ransacking the house. When Ms. Gonzalez tried to enter the residence, one of the burglars shut the door, striking her on the forehead. The burglars then fled through the back door.

   
   

3. Ms. Gonzalez called Alonso and spoke to Alonso's husband. She was screaming and crying and he understood her to say that his daughter had been stabbed and the children taken. Ms. Gonzalez does not recall telling Mr. Alonso that anyone had been injured or abducted, but says she was "freaking out' and does not even remember what she said.

   
   

4. After Mr. Alonso relayed to his wife what he thought had occurred, the two got in their car and headed to their daughter's house. From the car, Alonso initiated the first of three telephone calls to Miami police 911 emergency.

   
   

5. The tape submitted as evidence in this proceeding contains two calls to 911 that preceded Alonso's and her three calls.

   
   

6. Alonso's first call was as follows:

   
   

   Communications Officer: Miami Police. Do you have an emergency?

   
   

   Respondent: This is Commissioner Miriam Alonso. I need someone right away! 682 S.W. 19th Road. It's my daughter's house and they tried to steal my grandchildren. I need the policemen right now!

   
   

   Officer: Hello. 682?

   
   

   Respondent: Yes, 682 S.W. 19th Road and I want the police right here in less than four minutes!

   
   

   Officer: OK. Who are you?

   
   

   Respondent: I am Commissioner Miriam Alonso. Officer: Maria Alonso?

   Respondent: Miriam, Miriam.

   Officer: I have it, Miriam. Miriam, I have it. (Inaudible) OK. Bye

   
   

7. The second conversation went as follows:

   
   

   Officer: Miami Police. Do you have an emergency? Respondent: This is Commissioner Alonso again.

   Officer: Right, let me let you speak to the Complaint Sergeant. They have the call. They're trying to get someone to you now. Don't hang up and I'll let you speak to him.

   
   

   Respondent: Get them here and at the same time call the Chief of Police and tell him I need him here! Call the Chief of Police and let him know that they tried to get my grandchildren and I want him here!

   
   

8. Shortly thereafter, Alonso called the Police a third time:

   
   

   Officer: Miami Police. Do you have an emergency.

   
   

   Respondent: Yes, this is Commissioner Alonso again. I would appreciate that you try to reach Chief Ross and let him know what happened.

   
   

   Officer: Right. Commissioner Miriam, let me check with the bridge because they are handling that for you. Can you hold for me?

   
   

   Respondent: Yes.

   
   

   Sergeant Robbins: Sgt. Robbins. Can I help you?

   
   

   Respondent: This is Commissioner Alonso. I need to reach Chief Ross.

   
   

   Sgt. Robbins: OK. Where can he reach you?

   
   

   Respondent: I'm in my car right now. I'm at the site where the problem happened and I need to talk to him directly.

   
   

   Sgt. Robbins: OK, can you give me your car phone number so I can have him call you?

   
   

   Respondent: 773-0984.

   
   

   Sgt. Robbins: 773-0984? Respondent: Yes, sir.

   Sgt. Robbins: I'll call him. Respondent: Thank you.

   Sgt. Robbins: You're welcome.

   
   

9. Prior to the February 24 break-in, there had been other incidents of a suspicious nature directed toward Alonso and members of her family. Alonso had advised the Chief of Police that she believed herself to be the true target of these incidents. Additionally there were serious threats made against Alonso's life.

   
   

10. In response, the Chief of Police told Alonso that if anything else suspicious happened she should call him directly instead of going through the police department. He wanted her to call him directly in order to maintain the confidentiality of an ongoing investigation of the incidents and threats to Alonso. To facilitate this, he gave her his pager number and home telephone number.

    
    

11. While Alonso was City Commissioner, it was customary for her to be addressed as Commissioner Alonso and she always identified herself as Commissioner Alonso.

    
    

    CONCLUSIONS OF LAW

    
    

12. 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.

    
    

13. 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.

    
    

14. 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.

    
    

15. 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 inconsistent with the proper performance of his public duties.

    
    

16. 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.

       
       

17. The parties have stipulated that Part III of Chapter 112, Florida Statutes and Chapter 34-5 and 60Q, Florida Administrative Code, are applicable to this proceeding, and that at all pertinent times to this proceeding the Respondent was a public officer and subject to the Code of Ethics for Public Officers and Employees.

    
    

18. The Advocate has failed to establish by a preponderance of the evidence that Respondent corruptly used or attempted to use her official position or to perform her official duties to secure a special privilege, benefit, or exemption for herself or others. The Chief of Police had told Respondent to contact him if there were any more incidents or threats involving Respondent or her family. Respondent did as she was requested with the exception that she contacted the police department to get the Police Chief rather than calling the police chief directly.

RECOMMENDATION

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

not violate Section 112.313(6), Florida Statutes and dismissing the Complaint

against Miriam Alonso.

DONE AND ENTERED this 27th 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 27th day of January, 1995.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-5524EC

To comply with the requirements of Section 120.59(2), Fla. Stat., the following rulings are made on the parties' proposed findings of fact:

Advocate's Proposed Findings of Fact.

1. Paragraphs 1-8: Accepted.

2. Paragraph 9: Rejected as not supported by the greater weight of the evidence.

3. Paragraphs 10-11: Accepted.

4. Paragraph 12: Rejected as subordinate to the facts actually found.

Respondent's Proposed Findings of Fact.

1. Paragraphs 1-7: Accepted in substance.

COPIES FURNISHED:

Virlindia Doss, Esquire Advocate For the Florida

Commission on Ethics Department of Legal Affairs PL-01, The Capitol

Tallahassee, Florida 32399-1050

Charles Gener, Esquire

4100 West Flagler Street, Suite K Miami, Florida 33134-1640

Kerrie J. Stillman

Clerk and Complaint Coordinator Ethics Commission

Post Office Drawer 15709 Tallahassee, Florida 32317-5709

Bonnie Williams, Executive Director Ethics Commission

Post Office Drawer 15709 Tallahassee, Florida 32317-5709

Phil Claypool, General Counsel Ethics Commission

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: 94-005524EC

Orders for Case No: 94-005524EC