STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLOYD L. HYLTON, )

)

Petitioner, )

)

vs. ) CASE NO. 96-1973

)

DEPARTMENT OF REVENUE, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, Suzanne F. Hood, Administrative Law Judge with the Division of Administrative Hearings, held a formal hearing in this matter by video teleconference on August 19, 1996. The Administrative Law Judge, Respondent's counsel and three of Respondent's witnesses were located in Tallahassee, Florida. Petitioner, Respondent's co-counsel and one of Respondent's witness were located in Jacksonville, Florida.

APPEARANCES

For Petitioner: Floyd L. Hylton, Pro Se

103 Century 21 Drive, Suite 213 Jacksonville, Florida 32216

For Respondent: Patrick A. Loebig, Esquire

Peter Fleitman, Esquire Brian F. McGrail, Esquire Department of Revenue Post Office Box 6668

Tallahassee, Florida 32314-6668 STATEMENT OF THE ISSUES

The dispositive issues are: (1) whether this case should be dismissed because Petitioner Floyd L. Hylton did not qualify as a candidate for elective office on July 19, 1996 thereby rendering this matter moot; and, if not (2) whether Petitioner's proposed candidacy for Clay County Tax Collector involves a conflict of interest or an activity that interferes with his state employment.

PRELIMINARY STATEMENT

By letter dated April 5, 1996, Respondent Department of Revenue (Respondent) denied Petitioner Floyd L. Hylton's (Petitioner) request for permission to run for the office of Tax Collector for Clay County, Florida while continuing employment with the agency. Petitioner filed a request for formal hearing with Respondent on April 16, 1996. Respondent forwarded Petitioner's request to the Division of Administrative Hearings on April 26, 1996.

On May 21, 1996 the undersigned issued a Notice of Hearing scheduling this matter for formal hearing on July 9, 1996. On May 30, 1996 the undersigned issued an Amended Notice of Hearing advising the parties that the hearing would proceed by video teleconference but retaining the July 9, 1996 hearing date.

On June 14, 1996 Petitioner requested a continuance of the hearing until after August 15, 1996. By order dated June 20, 1996 the undersigned granted Petitioner's request and rescheduled the video hearing for August 19, 1996.

On August 9, 1996 Petitioner filed thirteen exhibits that he intended to introduce as evidence at the final hearing. Respondent filed its Witness and Exhibit List on August 15, 1996. Consistent with its Exhibit List, Respondent filed twenty exhibits that it intended to introduce as evidence at the final hearing. Respondent filed an Amended Witness and Exhibit List on August 16, 1996 listing additional witnesses and one additional exhibit.

Respondent filed an Emergency Motion to Relinquish Jurisdiction and/or In the Alternative, Motion to Dismiss on August 12, 1996. When the hearing commenced on August 19, 1996, the undersigned reserved ruling on Respondent's Motion to Dismiss until after the presentation of evidence.

Petitioner testified on his own behalf. Eleven of his pre-filed exhibits were offered and accepted into evidence. Respondent presented the testimony of four witnesses. Sixteen out of Respondent's twenty-one exhibits were offered and accepted into evidence.

At the conclusion of the hearing, the undersigned ruled orally that the issue on the merits of this case is moot because Petitioner did not qualify as a candidate on or before noon, July 19, 1996. After further research, the undersigned hereby reconsiders said ruling for the reasons set forth in the conclusions of law.

The parties did not file a transcript of the proceedings with the Clerk of the Division of Administrative Hearings. Neither party filed a proposed recommended order.

FINDINGS OF FACT

1. Petitioner is employed as a Tax Auditor IV in Respondent's Property Tax Administration Program. He is assigned to work in Respondent's Regional Office in Jacksonville, Florida. The counties within the Jacksonville Region for Property Tax Administration are: Duval, Clay, Nassau, Putnam, St. John and Flagler.

   
   

2. In January of 1996, Petitioner wrote to John Everton, Director of Respondent's Property Tax Administration Program requesting permission to run for Tax Collector of Clay County.

   
   

3. In February of 1996, Petitioner talked to Mr. Everton's secretary. After making this call, Petitioner understood that Respondent's attorneys had his application to run for elective office and that he would soon receive an answer.

   
   

4. Petitioner sent Mr. Everton an E Mail message on or about March 6, 1996. In this message, Petitioner asked Mr. Everton to check on his request to run for office and to expedite it immediately because time was of the essence.

5. That same day, Mr. Everton responded to Petitioner's request with an E mail message. Expressing his apologies, Mr. Everton advised Petitioner that Respondent's attorneys had Petitioner's initial request. Mr. Everton stated that he would request that the attorneys respond immediately to Petitioner's inquiry.

   
   

6. On or about March 13, 1996 Mr. Everton advised Petitioner that he would have to send his request for approval to run for local office directly to the agency head pursuant to the directive contained in Rule 60K-13.0031(1), Florida Administrative Code.

   
   

7. By letter dated March 18, 1996 Petitioner requested that Larry Fuchs, Respondent's Executive Director, grant him permission to run for Tax Collector of Clay County. Mr. Fuchs received this letter on March 29, 1996.

   
   

8. Mr. Fuchs responded to Petitioner's request by letter dated April 5, 1996. He reminded Petitioner that Rule 60K-13.0031(1), Florida Administrative Code, requires employees to apply directly to the agency head when requesting approval to become a candidate for local office. Mr. Fuchs then gave several reasons why he could not certify to the Department of Management Services that Petitioner's candidacy would involve no interest which conflicts or activity which interferes with his state employment.

   
   

9. More specifically, Mr. Fuchs' April 5, 1996 letter stated in relevant part that:

   
   

   Under section 195.002, Florida Statutes, the Department of Revenue has supervision of the tax collection and all other aspects of the administration of such taxes. Your

   position with the Department may require you to review or audit the activities of the office you propose to seek. Also some of your duties in supervising other officials in the administration of property taxes may be affected by your proposed candidacy.

   Your job requires you to review appropriate tax returns, and other records to resolve complex issues related to taxing statutes administered by the Department of Revenue. It also requires you to identify and scrutinize transactions to ascertain whether

   taxpayers have escaped paying property taxes. In addition, it also requires you to review and audit procedures used by counties to identify and value tangible personal

   property and accomplish statutory compliance, to investigate taxpayer complaints, to conduct field review with county staff as appropriate, and to provide education an assistance to county taxing officials.

   Because of the Department's statutory super- vision of the office of tax collector, there cannot be a certification that your candidacy would involve "no interest which conflicts

   or activity which interferes " with your

   state employment within the definitions of section 110.233(4), Florida Statutes.

   
   

   The letter went on to say that:

   
   

   This letter is a specific instruction to you that you should not qualify or become a candidate for office while employed in your current position. If you wish to commence your campaign by performing the pre-filing requirements, the law requires that you first resign from the Department.

   Failure to do so shall result in disciplinary action to dismiss you from your position in accordance with the Department's disciplinary standards and procedures, and Rule 60K-4.010, F.A.C., the Department's Code of Conduct, Section 110.233, Florida Statutes, and Rule 60K-13.002(3), F.A.C.

   
   

10. After receiving the above decision, Petitioner requested a formal hearing to challenge the denial of his request to run for Tax Collector of Clay County by letter dated April 10, 1996. Respondent received this letter on April 16, 1996.

    
    

11. Respondent referred Petitioner's request for a formal hearing to the Division of Administrative Hearings on April 26, 1996.

    
    

12. Petitioner responded to the Division of Administrative Hearings' Initial Order on May 7, 1996 advising the undersigned that he was unavailable for hearing May 28, 1996 through June 10, 1996 and July 5, 1996. He also included an initial pleading requesting, among other things, that Respondent immediately allow him to run for office and pay his filing fee because, in his opinion, it was too late for him to qualify using the alternative method of submitting petitions.

    
    

13. On May 21, 1996 this matter was scheduled for hearing on July 9, 1996.

    
    

14. Respondent filed a Unilateral Response to the Initial Order and a Prehearing Statement on May 30, 1996.

    
    

15. On June 14, 1996 Petitioner filed a letter stating that it was impossible for him to be prepared for the hearing scheduled for July 9, 1996 for two reasons: (a) he had just returned to work after two weeks of vacation; and

    (b) he was overwhelmed by discovery associated with his upcoming hearing. Petitioner requested that this matter be continued until sometime after August 15, 1996. He represented that Respondent had no objection to his request.

    
    

16. An order dated June 20, 1996 rescheduled the case for hearing on August 19, 1996.

    
    

17. On July 18, 1996, Respondent sent Petitioner a letter granting him permission to qualify and file the necessary paperwork to become a candidate for Clay County Tax Collector. The letter also advised Petitioner of the conditions under which he could begin campaign activities while on Respondent's payroll. Respondent's change in position was due in part to the pending Final Order in Hendrick v. Department of Revenue, DOAH Case No. 96-2054.

18. Respondent faxed its July 18, 1996 letter to Petitioner's office at 2:38 p.m. Petitioner's immediate supervisor contacted Petitioner at his home later that day at approximately 3:45 p.m. Petitioner did not request annual leave for the following day so that he could take whatever steps were necessary in order to qualify as a candidate for the office of Tax Collector. Instead, he opted to follow through with his previously arranged appointments for July 19, 1996.

    
    

19. On July 22, 1996 Petitioner faxed a letter to Respondent indicating that Respondent had not given him sufficient time in which to meet all requirements to qualify as a candidate for elective office by noon on July 19, 1996.

    
    

20. In order to qualify as a candidate for elective office in Clay County, Petitioner had to declare a bank depository for campaign purposes and designate a campaign treasurer.

    
    

21. If Petitioner intended to use the alternative method of qualifying by filing petitions, he had to file an alternative affidavit and obtain petition forms from the Clay County Supervisor of Elections between January 3, 1996 and June 21, 1996. He had to submit the signed petitions (Democrats-688; Republicans-990, Independent-1,873) to the Supervisor of Elections on or before June 24, 1996.

    
    

22. Regardless of whether Petitioner intended to qualify by paying a fee (Major Party-$5,876.40; Independent-$4,309.36) or by using the alternative petition method, he had to complete all paperwork on or before noon of July 19, 1996. Petitioner did not qualify by either method.

    
    

    CONCLUSIONS OF LAW

    
    

23. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties hereto pursuant to Sections 120.57(1), Florida Statutes.

    
    

24. The dispositive issue is whether Petitioner rendered the controversy moot when he: (a) filed a request on June 14, 1996 for a continuance of this case until sometime after August 15, 1996 which the undersigned granted by order dated June 20, 1996; and (b) failed to qualify as a candidate after receiving Respondent's permission to do so on July 18, 1996. The unequivocal answer is affirmative on both counts.

    
    

25. Mootness occurs "when the issues presented are no longer 'live' or when the parties lack a legally cognizable interest in the outcome." Montgomery

    v. Department of Health and Rehabilitative Services, 468 So. 2d 1014, 1016 (Fla. 1st DCA 1985); WFTV, Inc. v. Robbins, 625 So. 2d 941, 943 (Fla. 4th DCA 1993). A case becomes moot where, due to a change in circumstances prior to the decision, an intervening event makes it impossible for the court to grant a party any effectual relief. Montgomery, at 1016.

    
    

26. Petitioner had standing to bring this case when he filed his request for administrative hearing. When Petitioner filed his initial pleading on May 7, 1996, he indicated that it was too late for him to qualify using the alternative method. He did not advise the undersigned of the applicable deadlines to qualify for office or request a hearing before a date certain.

27. On May 21, 1996 the undersigned issued an order scheduling the hearing for July 9, 1996. Then, on June 14, 1996, Petitioner requested a continuance until after August 15, 1996. He made this request with Respondent's approval before the time expired for obtaining and submitting petitions to the Supervisor of Elections.

    
    

28. Petitioner did not file the necessary candidacy documentation pending the administrative hearing process after Respondent granted him the opportunity to do so on July 18, 1996.

    
    

29. In this case, the issues on the merits of Petitioner's claims are no longer "live" or viable. Further, Petitioner has no legally cognizable interest in the outcome of this case. Any eventual determination on the merits of Petitioner's claim would have no present effect on his right to qualify as a candidate, to campaign for election, or to hold the office of Tax Collector as a result of the 1996 election for Clay County Tax Collector. Therefore, the matter is deemed to be moot.

    
    

30. In light of these circumstances, it is unnecessary to reach the issue of whether Petitioner is entitled to seek and/or hold local public office as Clay County's Tax Collector in the 1996 election.

RECOMMENDATION

Based on the Findings of Fact and Conclusions of Law set forth above, it is recommended that Respondent enter a Final Order dismissing Petitioner's request for certification to the Department of Management Services that his candidacy for the office of Clay County Tax Collector would involve no interest which conflicts, or activity which interferes, with his state employment.

DONE AND ENTERED this 15th day of October, 1996 in Tallahassee, Leon County, Florida.

SUZANNE F. HOOD

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675 SUNCOM 278-9675

Fax Filing (904) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 15th day of October, 1996.

COPIES FURNISHED:

Patrick A. Loebig, Esquire Peter S. Fleitman, Esquire Department of Revenue

Post Office Box 6668 Tallahassee, Florida 32314-6668

Floyd L. Hylton

103 Century 21 Drive, Suite 213 Jacksonville, Florida 32216

Linda Lettera, Esquire Department of Revenue

204 Carlton Building Tallahassee, Florida 32399-0100

Larry Fuchs, Executive Director Department of Revenue

104 Carlton Building Tallahassee, Florida 32399-0100

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15 days from the date of this recommended order. Any exceptions to this recommended order should be filed with the agency that will issue the final order in this case.

Docket for Case No: 96-001973

Orders for Case No: 96-001973