STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

In Re: EARNIE NEALE, )

)

Respondent. ) Case No. 97-5922EC

)

RECOMMENDED ORDER

On July 29 and 30, 1998, a formal administrative hearing was held in this case in Miami, Florida, before Carolyn S. Holifield, Administrative Law Judge, Division of Administrative Hearings.

APPEARANCES

The Advocate: Virlindia Doss

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

For Respondent: David H. Nevel, Esquire

Law Offices of Ronald S. Lowy Seventh Floor

420 Lincoln Road

Miami Beach, Florida 33139 STATEMENT OF THE ISSUE

The issues in this case are whether Respondent, as City Manager for the City of Opa-locka, violated Section 112.313(6), Florida Statutes, by (1) using his position to engage in sexual, or romantically-oriented, comments, behavior, and/or invitations to female City employees; (2) having a subordinate's car repaired using City resources; (3) soliciting a personal sexual

or romantic relationship with a female job applicant; and (4) if yes, what penalty is appropriate.

PRELIMINARY STATEMENT

On October 21, 1997, the Florida Commission on Ethics entered an Order Finding Probable Cause to believe that the Respondent, Earnie Neal, as City Manager of Opa-locka, violated Section 112.313(6), Florida Statutes. On December 17, 1997, the matter was forwarded to the Division of Administrative Hearings for assignment of an administrative law judge.

Prior to hearing, on July 24, 1998, the parties filed a Joint Prehearing Stipulation, which included sixteen stipulated facts. At the final hearing, the Advocate called eleven witness: Jesus Corrales, Winston Mottley, Neva Reed, Wanda Fronczak, Dahlia Lockart, Mildred Bradshaw, Tonia Sanders, Sonia Hernadez, Liliana Cuevas, Ana Otero, and Angelita Griffin. The Advocate offered eight exhibits, all of which were received into evidence. The Respondent testified on his own behalf and called six witnesses: Robert Ingram, Craig Collins, Regla Mederos, Timothy Holmes, Aletha Penny (formerly Robinson), and Michael Jones. Respondent offered no exhibits into evidence.

A copy of the transcript of the proceeding was filed on September 10, 1998. Both parties filed proposed recommended orders and the Advocate also filed a Memorandum of Law and Argument as to Credibility.

FINDINGS OF FACT

1. Respondent served in the Marines for two years and in the Florida Department of Law Enforcement (FDLE) for thirteen years. He then served as Police Chief of Florida City for two years before resigning to become the Executive Officer in Charge of Investigations at the City of Lauderhill Police Department. After two or three months he quit that job, and conducted private investigations until he was hired by the City of Opa- locka.

2. Respondent was appointed acting City Manager for the City of Opa-locka (City/Opa-locka) on Friday, June 9, 1995. He was appointed City Manager effective July 28, 1995, and remained in that position until May 1997.

3. All City employees, other than those in the City Attorney's Office, ultimately reported to the Respondent as City Manager. Also, as City Manager, Respondent could terminate City employees.

4. In Respondent's positions as acting City Manager and City Manager, he was subject to the requirements of Part III, Chapter 112, Florida Statutes, the Code of Ethics for Public Employees and Officers.

   Remarks and Conduct Toward Female Employees

   
   

5. At all times relevant hereto, Angelita Griffin was employed by the City of Opa-locka. Ms. Griffin first started working with the City of Opa-locka during a Federal Emergency

   Management Agency (FEMA) project in late 1992. Thereafter, in March 1993, Ms. Griffin was hired by the City, in a temporary position as an accounts clerk in the Water Department, which was under the City's Finance Section. Ms. Griffin was eventually placed in a permanent position with the City and continued to work as a clerk in the Water Department until June 1995.

6. Ms. Griffin first met Respondent on Saturday, June 10, 1995, the day after he was appointed acting City Manager. Respondent was visiting the Finance Department with Winston Mottley, Director of the Finance Department. Ms. Griffin and several other employees were in the office working that day. Respondent briefly spoke to some of the employees, but he did not engage in extended conversations with any of them.

7. On June 10, 1995, while at the Finance Department, Respondent asked Mr. Mottley if he could send someone to Respondent's office on Monday to answer the telephones.

   Mr. Mottley said that he had just the right person, someone who he had been "trying to get out of his office." Even though

   Mr. Mottley did not name or otherwise identify that person to Respondent, the employee to whom he was referring was

   Ms. Griffin.

   
   

8. The following Monday, June 12, 1995, Mr. Mottley informed Ms. Griffin that she was being transferred to the Building Department and told her to report there the next day.

   After Ms. Griffin reported to the Building Department on

   
   

   June 13, 1995, she was directed to report to the City Manager's Office.

9. Although Ms. Griffin reported to the City Manager's Office, she was unhappy about being transferred from the Water Department. Ms. Griffin wanted to remain in the Water Department because she enjoyed the work, believed that she knew the job, and was comfortable there.

10. Almost immediately after being transferred from the Water Department, Ms. Griffin openly expressed her disatisfaction about the transfer and took steps which she believed would possibly result in her being reassigned to the Water Department. Within a day or so of Ms. Griffin's being transferred to the City Manager's Office, she told Respondent that she wanted to go back to the Water Department. However, he did not comply with her request. Also, as early as June 13 or 14, 1995, Ms. Griffin telephoned former City Manager Dennis Whitt and asked him if he could "talk to someone in City Hall and see if [she could] go back to the Water Department." Ms. Griffin called former City Manager Whitt because she believed that he was "still close to the mayor and the commissioners."

11. When former City Manager Whitt did not call Ms.

    
    

    Griffin with a response regarding her request, Ms. Griffin telephoned

    Mr. Whitt. In that conversation, Mr. Whitt told Ms. Griffin that he had been unsuccessful in trying to help her get transferred back to the Water Department. Mr. Whitt conveyed to Ms. Griffin that he had spoken to someone in the Water Department who said that Ms. Griffin was incompetent and that there was "nothing they could do to help [her]." Based on her telephone conversation with Mr. Whitt, Ms. Griffin believed that Respondent had told City Commissioner Helen Miller that Ms.

    Griffin couldn't return to the Water Department because she was "incompetent, . . ., didn't know [her] work over there, [and]. .

    . couldn't even type."

    
    

12. During the week of June 12, 1995, Ms. Griffin also went to the office of the City's Vice-Mayor Timothy Holmes and asked him to help her "get back to the Water Department." Vice- Mayor Holmes apparently believed that such a transfer was unlikely and advised Ms. Griffin that Respondent had said Ms. Griffin "didn't know [her] work over there."

13. Despite Ms. Griffin's soliciting the assistance of Mr. Whitt and Vice-Mayor Holmes, whom she considered to be influential, and Respondent, she was never reassigned to the Water Department.

14. Between June 1995 and November 1995, Ms. Griffin worked in four different offices: the City Manager's Office, the Mayor's Office, Safe Neighborhoods, and Code Enforcement.

    While working in each of the aforementioned offices, Ms. Griffin's sole or primary responsibility was to answer the telephone.

15. Beginning on June 13, 1995, Ms. Griffin worked for Respondent in the City Manager's Office and was there for about two months. While working in the City Manager's Office, there were two instances when Respondent spoke to Ms. Griffin about reporting to work late. In the first instance, Ms. Griffin indicated that her tardiness was due to transporting her son to daycare. During this or a subsequent conversation, Respondent asked Ms. Griffin several personal questions. The questions concerned Ms. Griffin's marital status, the paternity of her child, and her financial status as it related to her ability to take care of herself and her child. It was then that Ms. Griffin told Respondent that she earned extra money by working part-time as a singer. Ms. Griffin agreed to and did eventually bring him a tape of her music.

16. On another occasion, when Ms. Griffin was working in Respondent's office, he commented on her weight and the junk food she was eating. Respondent then suggested that Ms. Griffin contact a company to inquire about having a juice machine put in the building. Respondent's comments upset Ms. Griffin so much that she almost stayed home from work the next day. However, she later decided to report to work even though she was late.

    When Ms. Griffin arrived at the office, Respondent called Ms. Griffin into his office to discuss her tardiness. Respondent also called his assistant, Ms. Robinson, into the office while he talked to Ms. Griffin. Mr. Mottley, who was already in Respondent's office when Ms. Griffin arrived, remained there during the meeting.

    Ms. Griffin became frustrated and told Respondent and Mr. Mottley that she was tired of them "harassing" her. After Ms. Griffin made this comment, Respondent demanded that she write a letter of apology for her accusation against Respondent and Mr. Mottley. Ms. Griffin acknowledged that she, in fact, wrote the letter and gave it to Respondent. However, there is no indication of what Respondent did with the letter.

17. After working full-time in the City Manager's Office for about two months, Ms. Griffin was transferred to the Mayor's Office for a short time. From the Mayor's Office, Ms. Griffin was sent to Safe Neighborhoods, where she worked for approximately three weeks. Ms. Griffin's assignment to Safe Neighborhoods was the result of a request by the director of that program for additional assistance. From Safe Neighborhoods,

    Ms. Griffin went to work in Code Enforcement, where she worked until November 6 or 7, 1995.

18. In the City of Opa-locka, a Report of Personnel Action was to be completed whenever an employee was transferred from one section to another section. However, it was not unusual for City employees to be transferred without such forms being completed. In Ms. Griffin's case, there was never any paperwork reflecting any of her interdepartmental transfers or reassignments.

19. During Ms. Griffin's tenure with the City, even when she was not assigned exclusively to the City Manager's Office, she was called to that office several days a week, for some part of the workday, to answer the telephone. Ms. Griffin had no set schedule for reporting to the City Manager's Office to answer the telephone, but was considered a relief person and, as such, went there whenever she was called upon to report. When Ms. Griffin was needed, she was always called by a support staff person from the City Manager's Office.

20. Ms. Griffin also served as a relief person under the two former city managers who preceded Respondent. In addition to Ms. Griffin, employees from other City departments were required to serve as relief persons by answering the telephone in the City Manager's Office. Again, this practice was in place prior to Respondent's being appointed City Manager and continued during his tenure.

21. Several City employees, mainly Department heads or

    other highly placed staff, had Rotary Club memberships paid for by the City. Although Ms. Griffin did not fall into this category of employees, Respondent also authorized a City paid

    membership for her. Ms. Griffin was one of the City employees who regularly attended Rotary functions and meetings.

22. In addition to her job with the City, Ms. Griffin was a singer. Because Ms. Griffin was a performing artist, she often sang at Rotary Club activities.

23. Notwithstanding the fact that Ms. Griffin customarily sang at Rotary Club or other functions, there was at least one occasion when Respondent asked Ms. Griffin to sing at an event and she refused to do so. After Ms. Griffin refused to sing at that particular event, Respondent asked her why she was not more cooperative given "all that he had done for her." In response to this inquiry, Ms. Griffin told Respondent that her refusal to sing was not anything "personal." However, Ms. Griffin maintained her position that she "couldn't do it." After this exchange, there is no indication that Ms. Griffin sang at this function or that she suffered any adverse consequences as a result of her decision.

24. During the period between June 13, 1995, and November 6, 1995, none of Ms. Griffin's supervisors ever documented any complaint about her job performance or observed any changes in her behavior or attitude. In fact, those

    individuals who worked with Ms. Griffin and saw her on a regular basis found her to be pleasant and happy, and noticed no changes in her demeanor.

25. However, while Ms. Griffin worked in Safe Neighborhoods, a fellow employee, Mildred Bradshaw, observed that Ms. Griffin sometimes appeared disgusted or disturbed when she returned from the City Manager's office. In response to Ms. Bradshaw's inquiry about what was wrong, Ms. Griffin expressed her dissatisfaction with Respondent and told Ms.

    Bradshaw that she was "tired of [Respondent] calling her back over to his office" and "switching me back and forth and the way he was treating me as far as coming on to me."

26. Ms. Griffin testified that she gave Ms. Bradshaw no detailed explanation of what she meant by these comments. None the less, contrary to Ms. Griffin's statement, Ms. Bradshaw testified that Ms. Griffin told her that she and Respondent had had "sex" in Respondent's office. According to Ms. Bradshaw, Ms. Griffin made this statement to her in October 1995, when Ms. Griffin worked in Safe Neighborhoods.

27. On October 1, 1995, while Ms. Griffin was working in Safe Neighborhoods, City Commission authorized a 5 percent cost of living salary increase for City Employees. As a result thereof, Ms. Griffin's annual salary went from $16,500 to

    $17,388. Respondent authorized an additional raise for

    
    

    Ms. Griffin, on October 9, 1995, which increased her salary to

    
    

    $18,000. For the three weeks Ms. Griffin was in Safe Neighborhoods, she was supervised by Ms. Lockhart. However,

    Ms. Lockhart was unaware of Ms. Griffin's salary or of the pay raise authorized by Respondent.

28. During Respondent's tenure as City Manager for the City Of Opa-locka, City employees other than Ms. Griffin received salary increases in excess of the 5 percent cost-of- living increase approved by the City Commission. Some of those salary increases, approved by Respondent, were substantially higher than the one received by Ms. Griffin.

29. Completion of a Report of Personnel Action (RPA) is required to effectuate a salary increase for City employees and the form contains a "remarks" section that may be used to indicate the reason for any pay adjustment. Nonetheless, it is not unusual for such a statement to be absent from the RPA. In Ms. Griffin's case, no reason for the October 9, 1995, salary increase was provided on the form.

30. Ms. Griffin signed the RPA authorizing her salary increase. However, when she signed the form, the only pay raise shown was the 5 percent cost of living adjustment. Ms. Griffin testified that the first she knew of the raise was when the Respondent called her in and asked her how she liked her raise. According to Ms. Griffin, she was upset to know she was receiving special treatment, and was concerned about what Respondent might want in return.

31. On October 25, 1995, Ms. Griffin submitted a letter of resignation to the City, with such resignation being effective November 6, 1995. At the time Ms. Griffin tendered her letter of resignation, she told City colleagues that she was leaving the City to accept a job as a singer. Ms. Griffin told some City employees that she would be going on tour with someone, although after leaving the City, Ms. Griffin performed as a singer on a cruise ship.

32. On the evening of November 1, 1995, Respondent and a number of City officials who belonged to the Rotary Club, including Respondent's assistant, Michael Jones, and Police Chief Craig Collins, attended a Rotary Club function. Ms. Griffin also attended and sang at the event.

33. While enroute to the Rotary Club function on November 1, 1995, Ms. Griffin damaged her car. Ms. Griffin

    testified that the car was damaged when she backed into the gate or lock at her apartment complex as she was leaving for the Rotary Club event. However, that evening Ms. Griffin told Respondent, Michael Jones, and Craig Collins, in separate conversations, that someone had hit her car.

34. On November 1, 1995, after learning that Ms. Griffin's vehicle was disabled, Police Chief Craig Collins offered to drive her home. Even though Ms. Griffin knew Chief Collins not only as the City's Police Chief, but also as a relative of one

    of her friends, she declined his offer. Michael Jones also offered to provide Ms. Griffin with a police escort to take her home. Again, Ms. Griffin declined this offer and instead accepted a ride with Respondent. At Respondent's suggestion, Ms. Griffin then drove her car to the City Police Station and parked it. Respondent went to the Police Station to pick up Ms. Griffin and drive her home.

35. Respondent drove Ms. Griffin home after the Rotary Club event. When Respondent arrived at Ms. Griffin's apartment complex, he entered through the security entrance and drove

    Ms. Griffin to her apartment.

    
    

36. About fifteen minutes after Respondent left the Rotary function, Respondent called Mr. Jones from the cellular telephone in Respondent's car to advise him of matters that the Mayor had discussed earlier that evening. This call was made after Respondent took Ms. Griffin to her apartment.

37. Ms. Griffin's and Respondent's versions of what occurred once they arrived at Ms. Griffin's apartment complex are at odds.

38. Respondent's version of the events that transpired on the evening of November 1, 1995, is that after he arrived at Ms. Griffin's apartment complex, she exited his car and he immediately left. According to Respondent, he never went into Ms. Griffin's apartment.

39. According to Ms. Griffin, Respondent carried Ms.

    
    

    Griffin's belongings upstairs, entered her apartment, put the items in her bedroom, seated himself on her couch, and asked for something to drink. Ms. Griffin testified that while she was getting Respondent something to drink, he came up behind her, and rubbed against her. Ms. Griffin stated that she then turned around and tried to push him away, but Respondent persisted in his efforts, asking her why she was resisting after all he had done for her. Finally, according to Ms. Griffin, Respondent pushed her down and asked her for oral sex, and when she did not comply, he engaged in sexual intercourse with her against her will.

40. Ms. Griffin testified that she did not want Respondent in her apartment on the evening of November 1, 1995, but claims that she did know how to stand up to him.

41. Ms. Griffin never reported the aforementioned alleged sexual assault to anyone before about August 1996, when she mentioned it to her attorney. Moreover, Ms. Griffin never reported the incident to law enforcement officials nor did she seek medical attention after the alleged assault.

42. There is no physical or otherwise reliable evidence that the alleged sexual assault occurred. Furthermore, it is found that Ms. Griffin's testimony regarding the alleged assault is not credible. Thus, it is found that on the evening of

    November 1, 1995, Respondent never entered Ms. Griffin's apartment.

43. The next day, November 2, 1995, Ms. Griffin reported to her City job as usual. During that day, Ms. Griffin went to the City Manager's office after she was called to report there. Ms. Griffin continued to work for the City until November 7, 1995. Although Ms. Griffin's resignation was to be effective November 6, 1995, she worked an extra day until November 7, 1995, at the request of Respondent.

44. During the period between November 7, 1995, and August 19, 1996, Ms. Griffin was employed as a singer on the a cruise ship, Europa Sea Cruise.

45. About nine months after Ms. Griffin left her job with the City, she filed a sexual harassment claim against Respondent. According to Ms. Griffin, the reason she decided to file the complaint was that she "had gone for a long time without saying anything to anybody." Also, Ms. Griffin acknowledged that she filed the complaint because she was struggling financially, was in a low-paying job, was away from her son, had given up her apartment, and was "stressed out and worried."

46. The basis of the claim was alleged acts that occurred between June 1995 and November 1995. With the possible exception of comments that may have been made to Ms. Bradshaw in

    October 1995, Ms. Griffin never told anyone that Respondent made inappropriate remarks to her or behaved inappropriately toward her.

47. Ms. Griffin testified that from the first month that she reported to Respondent's office and continuing until she left the City's employ four and one-half months later, she was subjected to continuous sexual harassment by the Respondent. According to Ms. Griffin, in addition to the questions about her personal life noted in paragraph 15 above, Respondent asked her whether there was a man in he life, told her he was looking for a girlfriend, and asked for her help. Ms. Griffin also testified that during the time she worked in Respondent's office, he stared at her breasts. Moreover, Ms. Griffin testified that Respondent hugged her almost everyday that she came into the office. According to Ms. Griffin, Respondent sometimes hugged her in the presence of other City employees who worked in the office. According to Ms. Griffin, Respondent not only hugged her, but also hugged other female City employees.

48. From the reception area, anyone could see into Respondent's private office through a transparent window. This was possible because there was no covering on the window to obscure the view.

49. Regla Mederes, who worked as Respondent's executive secretary at the time relevant to this proceeding, worked in an

    area where she was able to observe both Ms. Griffin and Respondent and would have seen Respondent hug Ms. Griffin if he had done so. However, Ms. Mederes never saw Respondent hug Ms. Griffin when she came into the office to answer the telephones or any other time.

50. Aletha Robinson, Respondent's assistant when he worked for the City, was in and out of Respondent's office on a regular basis, but also never saw Respondent hug Ms. Griffin.

    Ms. Robinson stated that Respondent was always professional and "very much" a gentleman when he was in the office.

51. Respondent never hugged Ms. Griffin or any other City employee in the workplace and was never overheard making sexually inappropriate remarks to female employees in the workplace.

52. Ms. Griffin testified that at on two separate occasions, Respondent touched her on the buttocks. According to Ms. Griffin, Respondent touched her buttocks with his knee when he sat behind her at a banquet. Based on Ms. Griffin's account of events, Respondent also touched her buttocks with his hands while they stood in a buffet line at a Rotary function.

    Ms. Griffin stated that in the first situation, she made no attempt to move her chair and in neither of the aforementioned situations did she say anything to Respondent. Other City employees and officials attending these events never observed

    Respondent touching Ms. Griffin. In fact, at Rotary events, Respondent never sat near Ms. Griffin. As City Manager, Respondent was seated at the front of the room, typically at the head table. On the other hand, Ms. Griffin was usually late and sat in or near the back of the room.

53. Moreover, Ms. Griffin testified that during the course of her employment, Respondent asked her out to dinner and on another occasion, called her at home and asked if her boyfriend was in bed with her. Ms. Griffin never reported this to anyone during her employment with the City.

54. According to Ms. Griffin, on the evening of November 1, 1995, after the Rotary Club function had concluded, Respondent remarked that since Ms. Griffin had resigned from the City, she could now go out with him. Moreover, Ms. Griffin testified that these comments were made in the presence of City officials and/or employees, namely Vice Mayor Holmes, Aletha Robinson, and Michael Jones. Neither of the aforementioned individuals heard Respondent make any comment that Ms. Griffin could now be his girlfriend or go out with him.

55. Respondent, on one occasion, commented to Mr. Mottley about Ms. Griffin's breasts and their size. During this conversation, which Mr. Mottley characterized as "talking as men," he jokingly warned the Respondent that "breasts" could get him into trouble. This was a private conversation between only

    Respondent and Mr. Mottley. It is unknown where or when this discussion took place.

56. Respondent has had numerous courses dealing with sexual harassment. Thus, he was aware that remarks of a sexual nature to subordinates are inappropriate; that it was improper to ask a subordinate employee about her sexual partners; that it was improper to ask a subordinate employee to kiss him; and that it was improper for a superior to attempt to engage a subordinate employee in a sexual or romantic relationship.

57. Ana Otero was employed by the City of Opa-locka for eight years, leaving in September 1997, after she was asked to resign by Arlington Sands. Ms. Otero testified that she did not like anyone associated with the City of Opa-locka, including Respondent.

58. On one occasion when Ms. Otero went to Respondent's office, he told her that he wanted to come to her house for rice and beans. On another occasion, while passing through the small room where the copier was located, Respondent came up behind

    Ms. Otero while she was making photocopies. He was so close to her that she could feel his breath on her neck. Also, there was a time that Respondent made a comment to Ms. Otero regarding short Puerto Rican women. In another incident that occurred at the workplace, Respondent asked Ms. Otero to give him an "intimate" kiss.

59. Ms. Otero never reported Respondent's conduct or comments during her tenure with the City.

60. Liliana Cuevas was employed by the City of Opa-locka from 1990 until 1996. At one point, when Ms. Cuevas was in a meeting with Respondent on a personnel matter, he began to inquire about her personal life. Respondent asked such questions as why she was divorcing her husband, and whether her husband was her son's father. Respondent also asked her if she wanted to go out with one of his colleagues. On another occasion, Ms. Cuevas was delivering papers to the Respondent. As she gave him the items, he brushed his fingers lightly against her hand. As she was about to exit his office, he called her back to give her something else to take back with her. This scene was repeated several times, each time with Respondent brushing Ms. Cuevas' hand and watching her as she went back and forth.

61. Respondent never asked Ms. Cuevas to have sex with him, asked her out, or made any "moves on her." Notwithstanding,

    Ms. Cuevas' description of the the incident described above, she stated that Respondent has never flirted with her or gotten physical with her.

62. Ms. Cuevas never reported any inappropriate conduct by Respondent while she was employed by the City. While Ms. Cuevas

    filed sexual harassment charges against other employees of the City, she has not filed any such charges against Respondent.

63. Sonia Hernandez started working for the City as an administrative assistant in the Public Works Department in November 1995. She left the City's employ in December 1996, after being terminated by Aibola Balogun. One week into her employment with the City, someone at a staff meeting asked Ms. Hernandez if she were single. Respondent told the staff

    member to "back off." When Ms. Hernandez came to this meeting, she unknowingly sat in the area designated for upper management, Respondent grabbed her arm and hand as if indicating she was in the wrong area. Ms. Hernandez characterized Respondent's action as physical rather than sexual. Nonetheless, when he put his hand on Ms. Hernandez, she felt uncomfortable.

64. About a week after the staff meeting Respondent called Ms. Hernandez and invited her to the Christmas party. During this call, another person was on Respondent's speaker phone. Respondent made comments to this third person about

    Ms. Hernandez's "big brown eyes."

    
    

65. On another occasion, during one of his regular visits to the City's public works section, Respondent observed Twinkies on Ms. Hernandez's desk and suggested that she "lay off the Twinkies." Ms. Hernandez believed that the comment was a negative reference to her weight, and responded by telling

    Respondent that she was "comfortable with herself." Respondent then looked at her, chuckled, and said, "Well, when I usually go to the meat market, I buy a pound of meat as opposed to a pound of bones." Ms. Hernandez did not understand the meaning of Respondent's statement, but the earlier reference to her weight made her feel uncomfortable.

66. Although Respondent made comments about Ms.

    
    

    Hernandez's weight, she testified that Respondent made no sexual advances toward her either at the Christmas party or the workplace.

67. Finally, at the City employees' Christmas party, Respondent approached Ms. Hernandez and her date, and told Ms. Hernandez that someone wanted to meet her. Ms. Hernandez

    indicated that she was not interested. During the conversation, Ms. Hernandez believed that Respondent was looking at her breasts, rather than at her face. This made Ms. Hernandez feel uncomfortable. At the end of the conversation Respondent shook Ms. Hernandez's hand. The entire conversation lasted about 30 seconds.

68. While serving as City Manager, Respondent was aware that it was improper for a superior to engage in unsolicited or unwelcome sexually or romantically-oriented remarks or behavior toward a subordinate employee.

    Repair of Employee's Vehicle Using Public Resources

69. As previously noted, on November 1, 1995, Ms. Griffin damaged her car on the way to a Rotary Club function at which she was to sing. After the event, Ms. Griffin approached Michael Jones and told him that someone had hit her car, that the bumper was on the ground, and that the car was inoperable. Nevertheless, later that evening, Ms. Griffin was able to drive the damaged vehicle to the City Police Station, where she left it overnight.

70. The next day, Ms. Griffin went to see Michael Jones about having her car repaired. Mr. Jones instructed City employee, Jesus Corrales, to look at the car to assess the damage. Mr. Corrales told Mr. Jones that he could reattach the

    bumper in about five minutes. Thereafter, Mr. Jones directed Mr. Corrales to repair Ms. Griffin's car.

71. Pursuant to Mr. Jones' directive, Mr. Corrales repaired Ms. Griffin's car. Even though no City-owned parts were required, it took Mr. Corrales two to three hours to repair the vehicle. After the vehicle was prepared, Ms. Griffin offered to pay Mr. Corrales $20.00 for repairing the damage to her car.

    Mr. Corrales refused to accept the money.

    
    

72. Respondent never authorized or directed Mr. Corrales to repair Ms. Griffin's car. Nor did Respondent authorize or instruct Mr. Jones to have Mr. Corrales repair the vehicle. Behavior Toward Job Applicant

73. One day during Respondent's tenure as City Manager, he went to the City's Revenue Department. While in that office, Respondent observed an individual who was not employed by the City in that office typing. The Respondent then asked Deborah Ford, Director of the Revenue Department, who the person was and why she was in the office working. Ms. Ford indicated that the individual, Tonia Sanders, was good and had previously worked with her. Respondent admonished Ms. Ford, reminded her that there were procedures for hiring people, and directed her to have Ms. Sanders leave the office. Respondent then told Ms. Ford to have Ms. Sanders pick up an employment application and

    he offered to interview her if Ms. Ford brought her by his office.

74. A couple of days later Ms. Ford brought Ms. Sanders by Respondent's office. After both women entered the office, Ms. Ford commented to Respondent about Ms. Sanders' physical appearance, indicating that Ms. Sanders was attractive and had nice legs. Respondent cut this conversation off and then talked to Ms. Sanders about matters related to her application. Immediately after Ms. Sanders left, Respondent counseled Ms. Ford and told her not to ever bring anyone else to the office and "talk like that." Respondent put Ms. Sanders' City employment application on file and subsequently interviewed Ms. Sanders on one other occasion. However, Respondent never hired her for a position with the City.

75. Ms. Sanders testified that Respondent later called Ms. Sanders and asked her out socially. On one occasion, he

    suggested she prepare dinner for him and offered to purchase the ingredients.

76. On another occasion, Ms. Sanders spent some time talking with Respondent at a restaurant called Shula's, as part of a gathering organized by City employee Debra Ford. Following the gathering, Ms. Ford invited Respondent to go out with her and Ms. Sanders, but Respondent declined and all three decided to go home. However, as Respondent was leaving, he asked Ms.

    Sanders to ride with him. Ms. Sanders refused Respondent's offer.

77. On another occasion, Respondent called Ms. Sanders and told her to make hotel reservations at a specified hotel. Respondent instructed Ms. Sanders to call him after she had made the arrangements and he would meet her at the hotel. Although Respondent never expressly spoke to her about sexually-related matters or made sexually-explicit suggestions, Ms. Sanders reasonably assumed that Respondent was attempting to set up a sexual liaison with her. Ms. Sanders was not interested and did not comply with Respondent's instructions.

78. The aforementioned incidents involving Ms. Sanders occurred while Ms. Sanders' job application with the City was pending.

    CONCLUSIONS OF LAW

    
    

79. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this proceeding. Section 120.57(1), Florida Statutes.

80. Section 112.322, Florida Statutes, and Rule 34-5.0015, Florida Administrative Code, authorize the Commission on Ethics (Commission) to conduct investigations and to make public reports on complaints concerning violations of Part 111, Chapter 112, Florida Statutes, (the Code of Ethics for Public Officers and Employees).

81. 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); 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.

82. 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 1977), 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).

83. Clear and convincing evidence requires that the evidence must be found to be credible; facts to which witnesses testify must be distinctly remembered; testimony must be precise and explicit; and witnesses must be lacking in confusion as to facts in issue; evidence must be lacking in confusion as to facts in issue; and evidence must be of such weight that it produces in the mind of the trier of fact a firm belief or conviction without hesitancy, as to the truth of the allegations sought to be established. Slomowitz v. Walker, 429 So. 2d (Fla.

    4th DCA 1983).

84. Section 112.313(6), Florida Statutes, provides:

    
    

    MISUSE OF PUBLIC POSITION. 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.

    
    

85. The term "corruptly" is defined by Section 112.313(9), Florida Statutes, 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 the proper performance of his public duties.

    
    

86. 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 of an agency.

       
       

    2. The Respondent must have used or attempted to use his official position or any other property or resources within his trust or perform his official duties to secure a special privilege, benefit or exemption for himself or others.

       
       

    3. The Respondent must have acted corruptly, that is, with wrongful intent and for the purpose of benefiting himself or another person from some acts or omissions which are inconsistent with the proper performance of his public duties.

87. With regard to the first element, the parties have stipulated that the Respondent, as City Manager, was subject to the requirements of Part III, Chapter 112, Florida Statutes. Therefore, this element is established in each of the three allegations.

88. Here, it is alleged that Respondent made inappropriate sexual or romantically-oriented statements, and engaged in inappropriate sexual or romantically-oriented conduct toward several female employees. If true, because the Respondent had the ability to adversely affect their jobs or to fire them, such coercion, though implicit, is real and constitutes a misuse of office. In re: L. H. Lancaster, 5 FALR 1567-A, 1571-A (1983).

    Thus, it has been held that held that infliction of the kind of sexually charged remarks and conduct at issue here is inconsistent with the performance of a public officer or employees' public duties and constitutes a violation of Section 112.313(6), Florida Statutes. In re: Gary v. Latham, Complaint No. 94-174 (Ethics 1998), per curium affirmed, Latham v.

    Commission on Ethics, Case No. 97-4841, (Fla. 1st DCA, August

    
    

    12, 1998).

    
    

89. With regard to the first allegation, it has been established by clear and convincing evidence that Respondent used his position to engage in sexual or romantically-oriented comments and/or invitations, or behavior, with Ana Otero. Thus,

    Respondent's comments to Ms. Otero, in which he requested an "intimate kiss," constitute a violation of Section 112.313(6), Florida Statutes.

90. However, the first allegation has not been established by clear and convincing evidence as they relate to Angelita Griffin, Sonia Hernandez, and Liliana Cuevas. Having failed to meet the burden of proof in these instances, it cannot be concluded that Respondent violated Section 112.313(6), Florida Statutes, as to the aforementioned former City employees. While it is noted that the comments Respondent made regarding two of these employees' weight were inappropriate, as were personal questions, such remarks do not constitute sexual or romantic comments.

91. It is next alleged that Respondent violated Section 112.313(6), Florida Statutes, by having an employee's car repaired using City resources. The Advocate correctly states that the use of public resources for a private purpose is prima facie inconsistent with the performance of a public officer's duties. However, in the instant case, it has not been established by clear and convincing evidence that the Respondent arranged for Michael Jones to have Ms. Griffin's car repaired at the City's garage. Rather, the credible evidence established that Michael Jones independently and without Respondent's knowledge arranged for Ms. Griffin's car to be repaired at the

    City's garage by a City mechanic. This allegation has not been established by clear and convincing evidence and, therefore, there can be no finding that Respondent violated Section 112.313(6), Florida Statutes.

92. The final allegation, that Respondent solicited a personal sexual or romantic relationship with Ms. Sanders, during the pendency of her job application with the City, has been established by clear and convincing evidence. Thus, it is found that, as to his comments to and/or conduct toward Ms. Sanders, Respondent violated Section 112.313(6), Florida Statutes.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is:

RECOMMENDED that a Final Order and Public Report be entered finding that the Respondent, Earnie Neal, violated Section 112.313(6), Florida Statutes, in two of the three instances alleged; imposing a civil penalty of $3,000 per violation; and issuing a public censure and reprimand.

DONE AND ENTERED this 13th day of November, 1998, in Tallahassee, Leon County, Florida.

_ CAROLYN S. HOLIFIELD

Administrative Law Judge

Division of Administrative

Hearings

Hearings

The DeSoto Building 1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847

Filed with the Clerk of the Division of Administrative

this 13th day of November, 1998.

COPIES FURNISHED:

Virlindia Doss, Assistant Attorney General Office of the Attorney General

The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050

David H. Nevel, Esquire

Law Offices of Ronald S. Lowy Seventh Floor

420 Lincoln Road

Miami Beach, Florida 33139

Cynthia Everett, Esquire City of Opa-locka

City Hall

777 Sharazad Boulevard

Opa-Locka, Florida 33054

Kerrie J. Stillman

Complaint Coordinator and Clerk Commission on Ethics

Post Office Box 15709 Tallahassee, Florida 32317-5709

Bonnie Williams, Executive Director Commission on Ethics

Post Office Box 15709 Tallahassee, Florida 32317-5709

Phil Claypool, General Counsel Commission on Ethics

Post Office Box 15709 Tallahassee, Florida 32317-5709

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: 97-005922EC

Orders for Case No: 97-005922EC