) Case No. 97-2661EC
Respondent. )
Pursuant to notice, a formal hearing in this case was held on September 25, 1997, in West Palm Beach, Florida, and on October 20, 1997, by videoconference between Tallahassee and West Palm Beach, Florida, before Carolyn S. Holifield, Administrative Law Judge, Division of Administrative Hearings.
Whether Respondent violated Sections 112.313(6), Florida Statutes, by using a Riviera Beach Housing Authority credit card for personal use and, if so, what penalty is appropriate.
On March 11, 1997, the Florida Commission on Ethics (Commission) entered an Order Finding Probable Cause to believe that Respondent, Delphine Gissenter (Respondent), while serving
as a Commissioner on the Riviera Beach Housing Authority Board, violated Sections 112.313(6), Florida Statutes, by using a Riviera Beach Housing Authority credit card for personal use. On May 28, 1997, the matter was forwarded to the Division of Administrative Hearings to conduct a formal hearing.
When the final hearing convened on September 25, 1997, Respondent, who had previously been pro se, appeared with counsel. At that time, counsel for Respondent moved to continue the hearing. Over the Advocate's objection, the motion was granted but only as to the Respondent's presentation of witnesses and evidence not available on September 25, 1997. The final hearing reconvened on October 25, 1997, at which time Respondent again moved to continue the hearing. The motion was denied and the hearing was conducted as noticed.
Prior to the final hearing, the parties stipulated to facts which were admitted and required no proof. At hearing, the Advocate for the Commission called seven witnesses: Owen Dixon; Jessie Moye; Bernard Conko; Marion White; Clara Williams; Sirnee Borsay; and Bob Malone. The Advocate introduced and had fifteen exhibits admitted into evidence. Respondent called two witnesses, Patrick Tenaty and Delores Evans, and offered no exhibits into evidence. Respondent requested and was given additional time to file Certificates of Non-Appearance relative to three individuals who had been subpoenaed, but did not appear at hearing. Copies of the subpoenas for these individuals and
Return of Service forms were filed by Respondent on October 27, 1997.
The proceeding was recorded but not transcribed. By agreement of the parties, the time for filing proposed recommended orders was set for November 10, 1997. Both parties filed proposed recommended orders.
At all times pertinent to this proceeding, Respondent was a member of the Board of Commissioners of the Riviera Beach, Florida Housing Authority (Housing Authority/Board). Respondent was appointed to the Housing Authority by the mayor of Riviera Beach, Florida, and served from January 1994 until September 1996. In that public position, Respondent was subject to the requirements of Part III, Chapter 112, Florida Statutes, the Code of Ethics for Public Officers and Employees.
The Housing Authority is empowered to operate and make decisions relative to housing projects located in the City of Riviera Beach, Florida. The property operated by the Housing Authority constitutes an area of approximately 14.5 acres or about three city blocks.
In February 1995, the Housing Authority voted to obtain and issue credit cards to its commissioners and staff members. At this meeting, it was made clear that these credit cards were to be used by commissioners and staff members exclusively for
travel expenses incurred while engaged in business related to the
Housing Authority.
Respondent attended the February 1995 meeting at which the credit card issue was presented and approved by the Housing Authority and, also, participated in the vote on this issue. Accordingly, Respondent was aware of the intended and appropriate purpose for which these credit cards could be used.
Although the Housing Authority credit cards were issued in the individual names of commissioners and staff members, they were kept at the Housing Authority office. When a commissioner or staff member needed to use the credit card, that individual had to go the Housing Authority office to retrieve the card. Prior to obtaining their credit cards, commissioners or staff members were required to sign a log, indicating the date the card was checked out. Upon completion of the Housing Authority related travel and business, the commissioner or staff member was required to return the credit card to the Housing Authority office. Individual commissioners and staff members were not required to pay the credit card bills. Rather, under procedures implemented by the Housing Authority, these credit card bills were sent to and paid by the Board.
At all times relevant to this proceeding and while serving as a Commissioner of the Housing Authority, Respondent worked as a confidential informant for the Palm Beach County Sheriff's Office. In her capacity as a confidential informant, Respondent worked on cases in West Palm Beach as well as in
Riviera Beach, Florida. Respondent was sometimes compensated by the Palm Beach Sheriff's Office for information that she provided.
At all times relevant hereto, Owen Dixon was the Executive Director of the Housing Authority. In this capacity, Mr. Dixon was responsible for approving and authorizing all business related travel for commissioners of the Housing Authority. Commissioners were required to obtain prior approval for all Board related travel expenses if they wanted to use the credit cards issued by the Housing Authority and expected the Board pay the expenses.
Mr. Dixon authorized Respondent to use her Housing Authority credit card to rent a vehicle for a one-day trip to conduct business associated with the Board. Based upon Respondent’s request and Mr. Dixon's authorization, the trip was to be taken on or about April 27, 1995. The reason Mr. Dixon approved use of the credit card for this one-day trip was that it was: (1) related to Housing Authority business and (2) appropriate under the guidelines established by the Housing Authority.
On April 27, 1995, Respondent went to the Housing Authority office and signed out the Authority credit card bearing her name. On this same day, Respondent went to Payless Car Rental, and using her Board-issued credit card, rented a vehicle. Although Respondent's request and Mr. Owen's approval was for a
one-day trip, Respondent kept the Payless rental car until May 4, 1995. During this one-week period, Respondent put 513 miles on the vehicle that she rented from Payless.
On May 4, 1995, after returning the Payless rental car, Respondent rented a vehicle from National Car Rental. When Respondent rented the car from National Car Rental, she used her Housing Authority credit card.
On May 4, 1995, after returning the Payless rental vehicle and renting a vehicle from National Car Rental,
Respondent returned the Housing Authority credit card that had been issued in her name.
Mr. Dixon never authorized Respondent to keep the Payless rental vehicle for more than the one day. Furthermore, Respondent neither sought nor obtained approval from Mr. Dixon or anyone else connected with the Housing Authority to rent a vehicle from National Car Rental on or after May 4, 1995. Moreover, there were no Housing Authority matters that required Respondent to rent a car for the period between April 28 through May 4, 1995, and any time period subsequent thereto.
On June 5, 1995, the Housing Authority received a bill from Visa for charges incurred by Respondent for renting a vehicle from Payless Car Rental. The cost for Respondent's renting the Payless vehicle from April 27 through May 4, 1995, was $296.61. This total amount was charged to the Visa credit card issued by the Housing Authority to Respondent in her name. It was only after this bill was received by the Housing Authority did Mr. Dixon learn that Respondent had kept the Payless vehicle for one week, rather than the one day that he had authorized.
On June 6, 1995, Mr. Dixon wrote a letter to Respondent asking her to reimburse the Housing Authority $288.70, the part of the total bill that was not attributable to Housing Authority business. In response to the letter, Respondent made partial reimbursement to the Housing Authority in the amount of $200 on June 23, 1995. Respondent fully reimbursed the Housing Authority
for the Payless car rental on July 10, 1995, when she remitted
$100 to the Housing Authority. Upon payment of the $100, Mr. Dixon's secretary, Marion White, told Respondent that she had overpaid by $11.30 the amount owed to the Housing Authority. Respondent then directed Mrs. White to "just hold on to" the balance.
Approximately two weeks after Respondent fully reimbursed the Housing Authority for the Payless car rental, the Housing Authority received a bill from Visa, dated July 28, 1995. This Visa bill reflected charges of $188.84 incurred at National Car Rental that had been made on Respondent's Housing Authority credit card. Several days later, in a courtesy reminder dated July 31, 1995, Visa notified the Housing Authority that the credit limit on Respondent's credit card had been exceeded. The courtesy notice showed additional billing to the account of $997 from National Car Rental. Within a few days, the Housing Authority received a bill for additional charges of $214.99 from National Car Rental that had been made on Respondent's credit card.
Respondent charged a total of $1,400.94 to her Housing Authority credit card for the National car rental. This amount represents the cost for Respondent's renting a vehicle from National Car Rental for approximately eighty (80) days. As of the date of the final hearing, Respondent had not reimbursed the Housing Authority for the National Car Rental bill.
On or about July 4, 1995, Respondent signed up for membership in National Car Rental's "Emerald Club." Membership in the Emerald Club was available to individuals who had been or were customers of National Car Rental. Emerald Club members were entitled to discounts and express service, and were required to have a primary credit card number listed with National Car Rental. Because prospective Emerald Club members had been or were customers of National Car Rental, the primary credit card number could be obtained from the company's computer system based on credit card information acquired during prior transactions.
On May 4, 1995, when Respondent initially rented a vehicle from National Car Rental, she used her Housing Authority credit card. Thereafter, Respondent's Housing Authority credit card number appeared in National Car Rental's computer system and was listed as the primary credit card for Respondent's Emerald Club membership. Respondent never used a personal credit card when she rented a vehicle from National Car Rental.
The expenses incurred by Respondent as a result of renting a vehicle from National Car Rental were never billed to any credit card other than her Housing Authority credit card. Also, upon returning the vehicle rented from National Car Rental, Respondent never paid a sufficient amount in cash to prevent a balance from being billed to her Housing Authority credit card.
There is no dispute that Respondent incurred the charges for car rental from National Car Rentals. In fact, at a
meeting held in late July 1995, and attended by Mr. Owens, the Mayor of Riviera Beach, a Housing Authority Commissioner, the attorney for the Housing Authority Board, and a Palm Beach Sheriff's deputy, Respondent admitted that she had rented a vehicle from National Car Rental. It was during this meeting that Respondent first divulged that she was a confidential informant. According to Respondent, she had been using the car rented from National in connection with her work as an informant. However, Respondent indicated that she had paid the bills incurred as a result of the National Car Rental expenses.
Despite this representations, Respondent never provided documentation that she made such payments.
Prior to the meeting held in late July 1995, no one connected with the Housing Authority knew that Respondent has worked as a confidential informant. Likewise, neither Mr. Dixon nor anyone associated with the Housing Authority ever authorized Respondent to use the Housing Authority credit card for such purpose.
After Respondent stated that she was using the Housing Authority credit card in her work as a confidential informant, Respondent was told that such use was improper. Nonetheless, Respondent kept the car rented from National Car Rental for several more days. Moreover, Respondent allowed these as well as the other National Car Rental expenses to be charged to her Housing Authority credit card. When Respondent returned the car
to National Car Rental, because she did not pay the bill, the car rental expenses were billed to and, eventually, paid by the Housing Authority.
Respondent's use of the Housing Authority credit card for car rental for personal use or travel, or for work as a confidential informant or any other private employment is contrary to the mission and public purpose of the Housing Authority.
On August 4, 1995, the Board rescinded Respondent's authorization for future travel related to the Housing Authority due to her misuse of Housing Authority resources. At this meeting, Respondent again told Commissioners of the Board that she had paid the National Car Rental bills. However, again, no documentation supporting this claim was presented by Respondent.
The Palm Beach County Sheriff's Office never directed nor required Respondent to rent a vehicle to conduct her work as a confidential informant. In cases where the Palm Beach Sheriff's Office determines that it is necessary for an informant to have a rental car, that agency must give prior approval for such rental. Also, any costs associated with such an authorized and approved car rental are paid by the Palm Beach County Sheriff's Office.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties 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).
The burden of proof, absent a statutory directive to the contrary, is on the party asserting the affirmative of the issue in the proceedings. Department of Transportation v. J.W.C. Co., Inc., 396 So. 2d 778 (Fla. 1st DCA 1981); Balino v. Department of Health and Rehabilitative Service, 348 So. 2d 349 (Fla. 1st DCA 1977). In this proceeding, the Commission, through its Advocate, is asserting the affirmative: that the Respondent violated Sections 112.313(6), Florida Statutes. Therefore, the Commission must establish by clear and convincing evidence the elements of Respondent's alleged violations. Latham v. Florida Commission on Ethics, 694 So. 2d 83 (Fla. 1st DCA 1997) citing Department of Banking and Finance v. Osborne Stern, 670 So. 2d 932 (Fla. 1996) and Ferris v. Turlington, 510 So. 2d 292
(Fla. 1987).
It has been alleged that Respondent violated Section 112.313(6), Florida Statutes, by using a Housing Authority credit card for her personal use. That section provides the following:
MISUSE OF PUBLIC POSITION. No public officer, employee of an agency, or local government attorney 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 section 104.31
The term “corruptly” is defined by Section 112.312(9), Florida Statutes (1993), as follows:
“Corruptly” means done with a wrongful intent and for the purpose of obtaining, or compensating or receiving compensation for, any benefit resulting from some act or omission of a public servant which is inconsistent with proper performance of his public duties.
In order for it to be concluded that the Respondent violated Section 112.313(6), Florida Statutes, the Advocate must establish the following elements:
The Respondent must have been a public officer or an employee of an agency.
The Respondent must have used or attempted to use his official position or any other property or resources within his trust to secure a special privilege, benefit or exemption for himself or others.
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 is inconsistent with the proper performance of public duties.
The parties have stipulated that Respondent, as a Commissioner of the Housing Authority, was subject to the requirements of Part III, Chapter 112, Florida Statutes. Therefore, this element is proven.
To establish a violation of Section 112.313(6), Florida
Statutes, it must next be established that Respondent used a resource within her trust to secure a special privilege, benefit, or exemption for her. This element has been proven by the Advocate.
The evidence clearly established that Respondent used the Housing Authority credit card issued in her name to rent vehicles for her personal use. This credit card was issued to Respondent, as a Commissioner of the Board, solely for the purpose of charging expenses involving Housing Authority business. Nevertheless, Respondent used this resource within her trust to secure a special benefit for herself. Based on the clear evidence presented at hearing, Respondent used the Housing Authority credit card to rent vehicles for an extended period of time. Respondent's use of these rental cars and the expenses
related thereto were for personal use and were not related to business of the Housing Authority.
Finally, to establish a violation of Section 112.313(6), Florida Statutes, it must be proven that Respondent acted corruptly, that is, with wrongful intent and for the purpose of benefiting her from an act which is inconsistent with the proper performance of her public duties. The Advocate has proven this element.
The evidence clearly established that although Respondent received approval from the Board's Executive Director to rent a car for one day, Respondent kept the car rented from Payless for one week. Also, the clear evidence established that on the day Respondent returned the Payless vehicle, but prior to the time she turned in her Housing Authority credit card, she rented a car from National Car Rental, using that credit card.
The car rental from National Car Rental was not related to Housing Authority business, but was for Respondent's personal use. This is clearly evident not only by Respondent's actions, but also by the sequence of those actions. First, on May 4, 1995, Respondent returned the Payless vehicle. Next, on that same day, Respondent rented a car from National using the Housing Authority credit card. Finally, on May 4, 1995, Respondent returned her credit card to the Housing Authority office, but not until after she rented a car from National using that card. By using her Housing Authority credit card in this manner,
Respondent acted in a manner calculated to obtain a rental car for her personal use.
The Advocate for the Commission has established each of the requisite elements by clear and convincing evidence and, thus, has proven that Respondent violated Section 112.313(6), Florida Statutes.
RECOMMENDED that Final Order and Public Report be entered by the Florida Commission on Ethics finding that Respondent, Delphine Gissenter, violated Section 112.313(6), Florida Statutes, and imposing a civil penalty of $3000; issuing a public censure and reprimand; and requiring restitution to the Riviera Beach Housing Authority in the amount of $1400.94.
DONE AND ENTERED this 29th day of December, 1997, in Tallahassee, Leon County, Florida.
CAROLYN S. HOLIFIELD
Filed with the Clerk of the Division of Administrative Hearings this 29th day of December, 1997.
Florida Commission on Ethics Post Office Box 15709 Tallahassee, Florida 32317-5709
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.
