STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

IN RE: AURELIO R. LINERO, )

) Case No. 98-2371EC

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held on February 8-9, 1999, by videoconference between Miami and

Tallahassee, Florida, before Carolyn S. Holifield, Administrative Law Judge, Division of Administrative Hearings.

APPEARANCES

Advocate: Eric S. Scott, Esquire Assistant Attorney General Office of the Attorney General The Capitol, Plaza Level 01

Tallahassee, Florida 32399-1050

For Respondent: Ronald J. Cohen, Esquire

Brickell Bayview Centre

80 Southwest Eighth Street, Suite 1910 Miami, Florida 33130

STATEMENT OF THE ISSUE

Whether the Respondent violated Section 112.313(6), Florida Statutes, (1) by corruptly using his official position to benefit his wife, Ms. Wanda Bender-Linero and by pressuring the Complainant to upgrade Ms. Bender-Linero's 1992 performance evaluation; (2) by interfering with the Complainant's supervision of Ms. Bender-Linero; and (3) if so, what penalty is appropriate.

PRELIMINARY STATEMENT

On January 27, 1998, the Florida Commission on Ethics (the Commission) entered an Order Finding Probable Cause to believe that the Respondent, Aurelio R. Linero, violated Section 112.313(6), Florida Statutes (1) by using his official position to pressure a subordinate to upgrade the 1992 performance evaluation of his wife, Ms. Bender-Linero; and (2) by interfering with the subordinate’s supervision of Ms. Bender-Linero.

Respondent challenged the allegations and requested a hearing. On May 15, 1998, the matter was forwarded to the Division of Administrative Hearings for assignment of an Administrative Law Judge to conduct the hearing.

Prior to the final hearing, the parties submitted a Joint Prehearing Stipulation which set forth a number of stipulated facts which required no proof at hearing.

At hearing, the Advocate for the Commission called three witnesses: Asdrubal Jorge Rey; Ramon Alberto Delgado; and Maria Mauri. Respondent testified on his own behalf and presented the testimony of seven other witnesses: (1) William Katz, (2) Charles Scherer, (3) Ana Gonzalez Fajardo, (4) Thomas Springer,

1. Zulli Williams, (6) Esther Zaballo, and (7) David Perwak. The parties stipulated to the introduction of one joint exhibit, which was received into evidence. Respondent offered and had twenty-three (23) exhibits received into evidence. The record was left open until February 19, 1999, to receive one of

   Respondent's exhibits as a late-filed exhibit. That exhibit, the deposition of Gina Romano, was timely filed and received into evidence.

   During the hearing, Respondent moved to strike the testimony of Mr. Delgado. As a basis for the motion, Respondent contended that Mr. Delgado violated the sequestration rule. That motion has been considered and is denied for the reasons set forth below. Also, at the conclusion of the hearing, Respondent made an ore tenus Motion for Attorney's Fees. Respondent filed the Motion on April 16, 1999.

   A copy of the Transcript of the proceeding was filed on March 29, 1999. At the request of the parties, the time for filing proposed recommendations was set for more than 10 days after the Transcript was filed. On April 7, 1999, the parties requested and were granted an extension of time in which to file their Proposed Recommended Orders. Both parties timely filed Proposed Recommended Orders under the extended time frame.

   FINDINGS OF FACT

   
   

   1. At all times relevant to this proceeding, Respondent, Aurelio R. Linero (Respondent), was Director of the City of Coral Gables Public Works Department, having been appointed on

      February 10, 1986. Respondent held that position until his retirement on July 1, 1998. Prior to his appointment as director and since his employment by the City in 1967, Respondent had

      worked as a draftsman I, draftsman II, Engineering Division supervisor and acting director of the Public Works Department.

   2. As the director of the Coral Gables Public Works Department, Respondent was subject to the requirements of Part III, Chapter 112, Florida Statutes, the Code of Ethics for Public Officers and Employees.

   3. Respondent married Ms. Wanda Bender-Linero on November 26, 1982. Prior to her marriage to Respondent, Wanda Bender- Linero was employed by the City of Coral Gables as a daftsman I. In 1980, Ms. Bender-Linero was promoted to the position of daftsman II in the City of Coral Gables Public Works Department. Ms. Bender-Linero has received no promotions after the marriage to Respondent.

   4. At all times relevant to this proceeding, Asdrubal Jorge Rey worked as a civil engineer in the Design Unit of the City of Coral Gables Public Works Department. In this capacity, Mr. Rey supervised three employees, including Ms. Wanda Bender- Linero, Respondent's wife.

   5. At all times relevant to this proceeding, Mr. Rey was supervised by Mr. Alberto Delgado, the Engineering Division supervisor. Mr. Delgado, in turn, was supervised by Respondent, director of the Public Works Department.

   6. In 1992, written performance evaluations for Engineering Division employees were customarily completed in pencil by those employees' immediate supervisors. Each

      employee's immediate supervisor forwarded the evaluation to the division supervisor for review. After the division supervisor reviewed the evaluation, he was supposed to forward the evaluation to the department director for final review.

   7. The division supervisor and the department director were authorized to give input and make recommendations concerning employee evaluations.

   8. Typically, the evaluations were typed after the division supervisor and the department director had reviewed the draft version of the evaluation.

   9. In August 1992, Ms. Bender-Linero was evaluated for her job performance for the period from June 1991 to June 1992.

      Ms. Bender-Linero's over-all rating on the Employee Performance Evaluation was "Above Satisfactory." However, because

      Ms. Bender-Linero had "topped out" in terms of pay, her 1992 evaluation had no effect on her income or standing in the Department.

   10. Ms. Bender-Linero’s 1992 evaluation rating was consistent with her prior evaluations and like those evaluations, was initialed by Mr. Rey, Ms. Bender-Linero’s supervisor, and signed by Mr. Delgado, the Engineering Division supervisor, and Respondent, the Department director.

   11. Mr. Rey has been Ms. Bender-Linero’s supervisor’s since he began working for the City of Coral Gables in 1985. From that

       time to September 19, 1996, Mr. Rey and Respondent had a professional and cordial relationship.

   12. On September 19, 1996, alleged comments made during a staff meeting adversely impacted Mr. Rey’s feelings and attitude toward Respondent. Mr. Rey was not present at the staff meeting. However, based on comments made to him by individuals who attended the meeting, Mr. Rey believed that Respondent had said that Mr. Rey was unreliable. As a result of his belief, Mr. Rey felt insulted and was very offended by and angry with Respondent. Mr. Rey also believed that the alleged comments meant that Respondent planned to fire him or was phasing-out his job position.

   13. The comments that led to Mr. Rey's mistaken beliefs described in paragraph 12 above were attributed to Respondent's statement of a long-standing policy involving the assignment of construction projects. Respondent's comment was made at the September 19, 1996, staff meeting, when Respondent learned that a certain project had been constructed without Mr. Delgado's, the Engineering Division supervisor's knowledge. To prevent this oversight from happening again, Respondent told those attending the meeting that Mr. Rey did not have the authority to assign construction projects to other divisions in the Department of Public Works and that all construction projects must be approved by division supervisors. Mr. Delgado was certified as a professional engineer and was, thus, authorized to sign and seal

       certain engineering drawings; but Mr. Rey was not a certified professional engineer.

   14. On September 19, 1996, after Mr. Rey was told about the comments Respondent made at the staff meeting, he wrote a

       four-page letter of complaint to the City Manager's Office. In the letter, Mr. Rey stated he had been insulted by Respondent and demanded a public and private apology from Respondent; he expressed concern about future retaliation; and he made vague allegations about nepotism and favoritism in the Department. The letter also noted that earlier that day Mr. Rey had gone to Respondent's office to demand an apology.

   15. Mr. Rey's letter of complaint was received by the City Manager's Office on September 30, 1996. The City Manager appointed of team of city officials (Team) to investigate

       Mr. Rey's complaint. The Team consisted of William Katz, Director of Human Resources; Ana A. Gonzales-Fajardo, Mr. Katz' assistant; and Carmen Lizama-Gaspa, Head of Purchasing. The Team began its investigation on October 1, 1996, the day after Mr. Rey's complaint was received.

   16. The Team addressed all three of the issues raised in Mr. Rey’s letter of complaint: the alleged insulting remarks made by Respondent to Mr. Rey; the alleged nepotism or favoritism in the Department of Public Works; and Mr. Rey’s alleged fear of retaliation.

   17. To address Mr. Rey's concern that he had been insulted by Respondent, the Team met with Respondent. At the meeting, the Team told Respondent that Mr. Rey had felt insulted by comments that Respondent allegedly made at the September 19, 1996, staff meeting. Respondent informed the Team that he did not mean to insult Mr. Rey. Nonetheless, Respondent agreed to apologize to Mr. Rey and to clarify at the next staff meeting that he had not meant to offend Mr. Rey. Thereafter, Respondent apologized privately to Mr. Rey and also apologized to him at a staff meeting. However, Respondent did not give Mr. Rey what he wanted: the right to assign projects.

   18. During the investigation, to allay his claimed fear of retaliation, the Team reassured Mr. Rey that the City would not tolerate any retaliation or retribution. The Team advised

       Mr. Rey that any such retaliatory actions should be reported immediately. However, Mr. Rey never complained of any retaliation and there is no evidence that there was any.

   19. Finally, the Team investigated Mr. Rey's vague allegation of nepotism and favoritism in the Department of Public Works. In addressing this issue, the Team interviewed Mr. Rey; Mr. Delgado; Tom Springer, a former supervisor of

       Mr. Bender-Linero; and the two draftspersons who worked with Ms. Bender-Linero and were supervised by Mr. Rey.

   20. During the almost two-month investigation, the Team continuously and repeatedly asked Mr. Rey for details concerning

       the allegations of nepotism and favoritism, but he was evasive and refused to provide any information to them that would support these allegations.

   21. The only claim made by Mr. Rey to the Team was that his division was the only unit within the Department of Public Works that allowed employees to work flex-time. This comment was apparently an attempt to lead the Team to believe that the

       flex-time policy was permitted in his Division because

       
       

       Ms. Bender-Linero worked in that unit. This representation was not true at the time it was made by Mr. Rey. In fact, the flex- time policy was allowed throughout the Department of Public Works.

   22. On November 18, 1996, a Team member, Ms. Gonzalez- Fajardo, interviewed Mr. Delgado regarding Mr. Rey's allegations of nepotism or favoritism. During the interview, Mr. Delgado stated that he did not know of any favoritism in the Department and that he never saw Respondent reprimand Mr. Rey. Mr. Delgado explained that whenever Mr. Rey and Respondent met, it was always a one-on-one meeting. The Team interviewed Mr. Delgado again on November 22, 1996. This time, Mr. Delgado completely changed the statement that he had given on November 18, 1996. Mr. Delgado stated that Mr. Rey had been reprimanded by Respondent many times because of the situation with Ms. Bender-Linero and that he had been present at some of these meetings. The fact that

       Mr. Delgado had given inconsistent statements regarding his

       attending meetings between Respondent and Mr. Rey was noted in the Team's Summary Memorandum.

   23. At the hearing, Mr. Delgado testified that he never told Team member, Ms. Gonzalez-Fajardo, that Mr. Rey always met with Respondent one-on-one. Moreover, Mr. Delgado testified that he called Ms. Gonzalez-Fajardo and told her that there was a mistake in the Team's Summary Memorandum. However, the credible testimony of Ms. Gonzalez-Fajardo was that Mr. Delgado never called her and indicated that the Memorandum did not accurately reflect his statement to her.

   24. Mr. Delgado violated the sequestration rule by approaching Ms. Gonzalez-Fajardo in the hallway before she testified and tried to "remind" her of the alleged conversation. However, the violation did not prejudice Respondent's case in that Ms. Gonzalez-Fajardo's testimony was not influenced by

       Mr. Delgado.

       
       

   25. During the November 22, 1996, interview, for the first time, Mr. Delgado mentioned that a few years ago, Mr. Rey told him that Respondent changed Ms. Bender-Linero's evaluation. However, according to Mr. Delgado, Mr. Rey said he agreed to the recommended changes on the evaluation. Because Mr. Rey indicated that he had no problem with the evaluation and that he and Respondent had reached a consensus, Mr. Delgado did not pursue the matter.

   26. Based on its investigation, the Team concluded that there were no facts to support Mr. Rey's allegations of nepotism and favoritism. However, the Team referred the matter to the Coral Gables Police Department, Internal Affairs Division (Internal Affairs), for further investigation.

   27. On January 6, 1997, Major Scherer, the officer who conducted the Internal Affairs investigation, took the sworn statement of Mr. Rey. In his sworn statement, Mr. Rey stated that Respondent had pressured him into changing Ms. Bender- Linero’s 1992 evaluation. According to Mr. Rey, he had filled out the evaluation form in pencil, reviewed the evaluation with Ms. Bender-Linero, and then sent the evaluation to be typed. Mr. Rey stated that he never received a copy of the typed evaluation as he had expected, but instead was called into

       Respondent’s office. According to Mr. Rey, Respondent asked why Ms. Bender-Linero’s evaluation was so low to which he replied, "That's the way I do the evaluations." Mr. Rey stated that Respondent then told him to look at the evaluation again.

       Finally, in his sworn statement, Mr. Rey said that after his discussion with Respondent about Ms. Bender-Linero's evaluation, Mr. Rey never saw the evaluation again until it was typed.

       Moreover, Mr. Rey stated that the typed evaluation had been upgraded.

   28. In the instant case, Mr. Rey alleged that Respondent pressured him to upgrade Ms. Bender-Linero's 1992 performance

       evaluation and that Respondent also interfered with his supervision of Ms. Bender-Linero.

   29. In this proceeding, Mr. Rey testified that he filled out Ms. Bender-Linero's 1992 performance evaluation in pencil; discussed the evaluation with Ms. Bender-Linero; and sent the penciled draft of the evaluation to be typed. Mr. Rey testified that he never received the typed evaluation, but rather was called into Respondent's office to discuss the evaluation.

       Mr. Rey stated that, at this meeting, Respondent wrinkled the evaluation, threw it in the waste basket and told Mr. Rey that the evaluation was garbage and that he could do better.

       Mr. Rey’s further testified that after the meeting, he went back to his office for approximately five minutes, but then returned to Respondent's office; retrieved the wrinkled evaluation from Respondent’s waste basket; and took it to his supervisor,

       Mr. Delgado. Finally, Mr. Rey testified that after he explained to Mr. Delgado what had happened in his meeting with Respondent, Mr. Delgado told him to look at previous evaluations of

       Ms. Bender-Linero and use them to upgrade her 1992 evaluation.

       
       

   30. Mr. Rey testified that he followed Mr. Delgado's advice and used some old evaluations to complete a new evaluation for Ms. Bender-Linero. Mr. Rey testified that he upgraded

       Ms. Bender-Linero's evaluation in two or three categories including punctuality, volume of acceptable work, and initiative, and changed the comments on the evaluation to reflect more

       favorably on Ms. Bender-Linero. Mr. Rey testified that one of the reasons the modified 1992 evaluation was too high for

       Ms. Bender-Linero was that she did not do computer drafting. Finally, Mr. Rey testified that after he completed the upgraded evaluation for Ms. Bender-Linero, he gave the evaluation to the secretary at the Central Administration Section to have it typed; when it came back, Mr. Rey initialed the evaluation and sent it up through the chain of command.

   31. Mr. Rey's testimony that Ms. Bender-Linero's 1992 evaluation was too high because she was not proficient in and did not do computer-assisted drawing is not credible. The 1992 evaluation was for the period of June 1991 through June 1992. During that period, the only computer-assisted drawing program that was being used in the Design Unit was DigitCad. That program had been used by the Design Unit since the 1980's and

       Ms. Bender-Linero was proficient in the use of that program. The newer program which Ms. Bender-Linero had difficulty with, AutoCad, was not installed in the Design Unit or used by that office until March 1993. Therefore, any difficulties experienced by Ms. Bender-Linero is using AutoCad would be inapplicable to her 1992 evaluation.

   32. Mr. Rey’s testimony in this proceeding that Respondent pressured him to upgrade Ms. Bender-Linero’s 1992 evaluation is not credible.

   33. Mr. Rey's testimony at hearing regarding the events related to Respondent's involvement in Ms. Bender-Linero's evaluation is inconsistent with his earlier sworn statement to Major Scherer. Mr. Rey's testimony also conflicts with that of Mr. Delgado.

   34. Mr. Rey and Mr. Delgado have given conflicting versions of the circumstances concerning the Respondent's alleged interference with Ms. Bender-Linero's 1992 evaluation. In his sworn statement in January 1997, Mr. Rey stated under oath that Ms. Bender-Linero’s 1992 evaluation had been altered, typed, and sent to him to be initialed. However, at the hearing, in this proceeding, Mr. Rey testified that he actually changed the 1992 evaluation after meeting with Respondent. Mr. Delgado testified that Mr. Rey mentioned that he and Respondent had discussed

       Ms. Bender-Linero's evaluation and that based on that conversation, Mr. Rey made changes. However, Mr. Delgado stated that he specifically asked Mr. Rey if he agreed with the changes, and Mr. Rey indicated that he did.

   35. Respondent did not pressure Mr. Rey to upgrade

       
       

       Ms. Bender-Linero's 1992 evaluation. Moreover, Respondent’s signing of the evaluation was merely a ministerial task required by his employer and was not inconsistent with the performance of his duties.

   36. In this proceeding, Mr. Rey's second allegation is that Respondent interfered with Mr. Rey's supervision of Ms. Bender-

       Linero in three specific areas: (1) tardiness; (2) project assignments; and (3) computer games. With regard to the tardiness issue, at this proceeding, Mr. Rey testified that during the period covered by the 1992 evaluation, Ms. Bender- Linero was sometimes late to work. Mr. Rey testified that on one occasion when he met with Ms. Bender-Linero about being late, she became upset. Mr. Rey testified that a few minutes after his meeting with Ms. Bender-Linero about being late, he was called into Respondent's office and told to stop "bothering" Ms. Bender- Linero. Mr. Rey indicated that Respondent mentioned the City's flex-time policy as a rationale for Ms. Bender-Linero's tardiness. However, Mr. Rey testified that he did not believe that the flex-time policy applied in this case.

   37. Despite Mr. Rey's allegation that Ms. Bender-Linero failed to always report to work on time and that he was concerned about this, he never attempted to discipline her for coming in late. Likewise, there is no indication that Respondent ever told Mr. Rey not to discipline Ms. Bender-Linero if she reported to work late.

   38. There was only one occasion when he mentioned the issue of punctuality to Ms. Bender-Linero. In that one instance,

       Ms. Bender-Linero started crying. She then called Mr. Linero, who came upstairs to the Design Unit, saw both Mr. Rey and

       Ms. Bender-Linero, and told them to come to his office. Given that Respondent was director of the Department and other

       employees were in close proximity to Ms. Bender-Linero at the time of the incident, it was appropriate for Respondent to take care of a problem which involved an employee crying in the office.

   39. Mr. Rey alleged that Respondent interfered with his assignment of projects to Ms. Bender-Linero. At hearing, both Mr. Rey and Mr. Delgado testified that Respondent interfered with the assignment of projects to Ms. Bender-Linero by giving

       Ms. Bender-Linero the projects she liked and wanted to work on. Mr. Rey indicated that to accomplish this, he had to take projects already assigned to other draftspersons and give them to Ms. Bender-Linero. Mr. Delgado could not recall Respondent changing any draftsperson assignments other than Ms. Bender- Linero.

   40. Mr. Rey's testimony at the hearing in this instant case conflicts with the sworn statement that he made in January 1997. In his sworn statement to Major Scherer, Mr. Rey stated that Respondent sometimes directed that changes be made in project assignments to Ms. Bender-Linero, as well as to other employees. Mr. Rey's testimony from his January 6, 1997, sworn statement is as follows:

       Q. Has he [Respondent] ever come to you about changing any other employee's project load or saying, no, I don't want this individual to handle this project?

       
       

       A. Yea, it's been the case, yes.

       
       

       Q. What reason would that be?

       A. I think it's because he understands that one employee would be more capable than the other one, that may be the case why.

       
       

       Q. All right. Did Mr. Linero come to you and tell you to give his wife another project or to take that one away because he felt that she wasn't capable, or somebody was more capable than she? Did he ever give a reason?

       
       

       A. Yeah. Well, not a reason, not a reason. He would say like "You better give this to so and so, because he knows how to do it better. You better give it to so and so, because he might do it better.

       
       

   41. Based on the foregoing, there is no indication that Respondent interfered with Mr. Rey's assignments of projects to Ms. Bender-Linero to benefit her. Rather, based on Mr. Rey's earliest statement regarding assignment of projects, any change in project assignments were made to appropriately match projects with the employees' strengths and abilities.

   42. The third allegation regarding Respondent's interference with Mr. Rey's supervision of Ms. Bender-Linero involved her use of computer games. Mr. Rey and Mr. Delgado provided conflicting testimony on this allegation.

   43. Mr. Delgado testified that on one occasion, Respondent told Mr. Rey to stop "picking on" Ms. Bender-Linero after Mr. Rey told her to stop playing games on the computer. Mr. Delgado testified that he was present when Respondent called Mr. Rey into his office and told Mr. Rey that he shouldn't be "picking on"

       Ms. Bender-Linero after Mr. Rey told her to stop playing games on the computer. According to Mr. Delgado, Mr. Rey argued with

       Respondent but Respondent persisted in his demand that Mr. Rey stop "picking on" Ms. Bender-Linero. Finally, Mr. Delgado testified that after the meeting, he and Mr. Rey had a conversation about Respondent’s interfering in his supervision of Ms. Bender-Linero.

   44. Contrary to Mr. Delgado's testimony concerning computer games, Mr. Rey testified that he saw Ms. Bender-Linero and other employees in his unit playing computer games. Subsequently,

       Mr. Rey met alone with Respondent and told him that "people" were playing computer games. According to Mr. Rey, Respondent told him that since he was the boss upstairs he was supposed to take charge of that situation. Mr. Rey admitted that Respondent never interfered in his supervision of Ms. Bender-Linero in connection with computer games.

   45. Respondent never interfered with Mr. Rey's supervisor of Ms. Bender-Linero. In fact, at work, Respondent went out of his way not to show preference or get involved in matters related to his wife's work.

   46. It is also found that Mr. Rey's and Mr. Delgado's testimony regarding Respondent's interference with Mr. Rey's supervision of Ms. Bender-Linero lacks credibility. There are numerous inconsistencies and discrepancies in the statements of Mr. Rey and Mr. Delgado.

   47. Despite his serious and numerous allegations against Respondent, Mr. Rey failed to provide any documentation of a

       single incident that involved the alleged disciplinary problems that he had with Ms. Bender-Linero and that resulted in Respondent's involvement. In fact, Mr. Rey acknowledged that he failed to document the time, date, and other details related to the alleged incidents.

   48. In light of the length of time that has elapsed since the alleged incident, the absence of any documentation of the alleged incidents, and the discrepancies, conflicts, and inconsistencies in testimony, it has not been established that the alleged offenses occurred.

       CONCLUSIONS OF LAW

       
       

   49. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this proceeding. Section 120.57(1), Florida Statutes (1997).

   50. 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).

   51. 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 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 Commission must establish by clear and convincing evidence the elements of the alleged violators. Lantham 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 297

       (Fla. 1987).

       
       

   52. The nature of clear and convincing evidence has been described as follows:

       [C]lear and convincing evidence requires that the evidence must be found to be credible; the facts to which the witnesses testified must be distinctly remembered; the testimony must be precise and explicit and the witnesses must be lacking in confusion as to the facts in issue. The 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 be truth of the allegations sought to be established.

       Inquiry Concerning Davey, 645 So. 2d 298, at 404 (Fla. 1994); citing Slomowitz v. Walker, 429 So. 2d 797, at 8900 (Fla. 4th DCA 1983).

   53. It has been alleged that Respondent violated Section 112.313(6), Florida Statutes. Specifically, Respondent is charged with corruptly using his official position to benefit his wife by 1) pressuring his subordinate, Mr. Rey, to upgrade

       Ms. Bender-Linero's 1992, performance evaluation, and 2) by

       interfering with Mr. Rey's supervision of Ms. Bender-Linero. Section 112.313(6), Florida Statutes, provides the following:

       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.

   54. The term "corruptly" is defined by Section 112.312(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.

       
       

   55. In order for it to be concluded that Respondent violated Section 112.313(6), Florida Statutes, the Advocate must establish the following elements as to each of the allegations:

       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.

   56. With regard to the first element, the parties have stipulated that the Respondent, as director of the Department of Public Works for the City of Coral Gables, was subject to the requirements of Part III, Chapter 112, Florida Statutes. Therefore, this element is established in each of the allegations.

   57. Next, to prove the alleged violators, it must be established that Respondent used his official position or property or resources to secure a special privilege, benefit or exemption for himself or others. This element has not been proven by the Advocate.

   58. Applying the definition set forth in paragraph 52, the Advocate has failed to prove that Respondent pressured Mr. Rey into upgrading Ms. Bender-Linero's performance evaluation or that he interfered with Mr. Rey's supervision of Ms. Bender-Linero. Here, the key witnesses for the Advocate, were not credible. Their testimony was not precise and explicit but confusing, contradictory, and inconsistent. The record contained no supporting documentary evidence. Having failed to establish the underlying factual allegations, there can be no finding that Respondent violated Section 112.313(6), Florida Statutes.

RECOMMENDATION

Based on the foregoing Findings of Facts and Conclusions of Law, it is recommended that a Final Order and Public Report be entered finding that Respondent, Aurelio R. Linero, did not

violate Section 112.313(6), Florida Statutes, and denying Respondent's request for attorney's fees.

DONE AND ENTERED this 4th day of June, 1999, in Tallahassee, Leon County, Florida.

CAROLYN S. HOLIFIELD

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 4th day of June, 1999.

COPIES FURNISHED:

Eric S. Scott, Esquire Assistant Attorney General Office of the Attorney General The Capitol, Plaza Level 01

Tallahassee, Florida 32399-1050

Sheri Garety, Complaint Coordinator and Clerk Florida Commission on Ethics

2822 Remington Green Circle, Suite 101 Post Office Drawer 15709

Tallahassee, Florida 32317-5709

Phil Claypool, General Counsel Florida Commission on Ethics 2822 Remington Green Circle Post Office Drawer 15709

Tallahassee, Florida 32317-5709

Ronald J. Cohen, Esquire Brickell Bayview Centre

80 Southwest Eighth Street Suite 1910

Miami, Florida 33130

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: 98-002371EC

Orders for Case No: 98-002371EC