Administrative Law Judge (ALJ) Daniel Manry conducted the final hearing of this case for the Division of Administrative Hearings (DOAH), on October 7, 2008, in Orlando, Florida.
For Petitioner: Jennifer M. Erlinger, Esquire
Office of the Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050
For Respondent: Rick L. Jancha, Esquire
NeJame, Lafay, Jancha, Ahmed, Barker & Joshi, P.A.
The issue is whether Respondent misused her position as an Orlando city commissioner by attempting, on May 6, 2006, to influence how the Orlando Police Department (the police department) handled a routine traffic stop involving her son in violation of Subsection 112.313(6), Florida Statutes (2005).1
On April 25, 2007, the Commission on Ethics (Petitioner) issued an Order Finding Probable Cause to believe Respondent violated Subsection 112.313(6) by using her official position to influence how the police department handled a routine traffic stop involving Respondent’s son. Respondent timely requested an administrative hearing, and Petitioner referred the matter to DOAH to conduct the final hearing.
At the hearing, Petitioner called four witnesses and submitted 10 exhibits, including two impeachment exhibits, for admission into evidence. Respondent called three witnesses and submitted no exhibits.
The identity of the witnesses and exhibits and the rulings regarding each are reported in the two-volume Transcript of the final hearing filed with DOAH on December 10, 2008. The parties timely filed their respective Proposed Recommended Orders on January 26, 2009.
Petitioner is the state agency responsible for regulating compliance with the Code of Ethics applicable to public officers and employees pursuant to Chapter 112, Part III. At all times material to this proceeding, Respondent has been a public officer, a commissioner of the City of Orlando, Florida.
Respondent is African-American, as are her two sons Mr. Sean Lynum and Mr. Juan Lynum.
At 12:50 a.m., on May 6, 2006, Officer Matthew Ochiuzzo was on duty for the police department patrolling the Paramore neighborhood in Orlando less than a mile from Rock Lake Drive. Officer Ochiuzzo stopped Mr. Juan Lynum because of an inoperable headlight on the vehicle Mr. Lynum was driving.2 Mr. Lynum was driving Respondent’s vehicle home from a fraternity party to Respondent’s residence on Rock Lake Drive in Orlando, Florida. Mr. Lynum shared the residence with Respondent at the time. Neither Respondent nor Mr. Lynum were aware that a headlight on the vehicle was not working.
Mr. Lynum telephoned Respondent from his cellular telephone. He informed Respondent that he was being stopped by a Caucasian police officer and expressed his concern that he was the victim of racial profiling.
Respondent telephoned then Chief Michael McCoy of the police department at his home and expressed her concern that Mr. Lynum was the victim of racial profiling. Chief McCoy said
he would telephone the watch commander on duty and have him deal with the allegation of racial profiling.
Respondent then telephoned Officer Roderick Johnson, the police liaison officer assigned to Respondent and an officer first class in the police department. Officer Johnson was
engaged in approved off-duty employment to provide security at a local night club. Respondent had time to disclose the general location of the traffic stop and her concern that her son was being racially profiled when she terminated the conversation to take a return telephone call from Chief McCoy.
Respondent clearly intended to influence how the police department handled the traffic stop. Respondent did not expressly request intervention in the traffic stop by
Chief McCoy or Officer Johnson, but Respondent admits that the purpose of her action was to alert both men to possible racial profiling and to monitor the traffic stop.
Respondent used her official position to influence the traffic stop of her son. Both Chief McCoy and Officer Johnson interpreted a telephone call from a city commissioner at approximately 1:00 a.m. in the morning to be a request for action in her official duty as a commissioner.3 The testimony of Chief McCoy is illustrative.
Q. Chief, when you received that call from Commissioner Lynum, did you feel you needed to act based on the phone call?
A. She’s a Commissioner, yes. Act then, yes. . . .
Q. . . . When you answered that she was a Commissioner, what did you mean by that? How did that impact you?
A. I used to make the analogy that our Commissioners were our board of directors,
because I spent some time in the private sector, and you know, they drive the direction of the city, police department being part of that. So they’re a Commissioner. They’re elected by the people, so, yeah, pay attention to a Commissioner call, as I would a Mayor call.
Q. So when you responded to her, were you responding as a friend or as a commissioner?
A. As a commissioner.
Transcript (TR) at 258-259 and 277.
Officer Johnson took it upon himself to call Officer Ochiuzzo, by radio and then by cell phone, during the traffic stop. A call from a city commissioner at approximately
1:00 a.m. motivated Officer Johnson to take action.
Officer Ochiuzzo terminated the traffic stop after discussing the matter with Officer Johnson and never spoke to the watch commander on duty during the traffic stop.
Officer Ochiuzzo had intended to issue a traffic summons to Mr. Lynum for an inoperable headlight, no registration, and no proof of car insurance.
The benefit sought by Respondent in her attempt to influence how the police department handled the traffic stop involving her son was not to prevent her son from receiving a traffic citation. When Mr. Lynum arrived at Respondent’s home after the traffic stop, Respondent discovered that the headlight on her vehicle was inoperable. She telephoned Officer Johnson
and asked him to ensure that a traffic citation was forwarded to her.
The benefit sought by Respondent was to prevent racial profiling during an ongoing traffic stop by complaining directly to the chief. That was a special benefit or privilege available to Respondent that was not available to a member of the public through the police department’s bias free policing policy.
The police department’s bias free policing policy was drafted by legal counsel for the department and was adopted in June 15, 2004. The policy required a member of the public who alleged racial profiling to file a written complaint on a form provided by the department and required the department to investigate the alleged profiling.
Respondent was personally familiar with the police department’s bias free policing policy. Respondent was very active in the community, supported the bias free policing policy, and assisted her constituents in processing profiling complaints.
Mr. Lynum later filed a complaint of racial profiling pursuant to the bias free policing policy. The police department investigation exonerated Officer Ochiuzzo. Exoneration means the department found Officer Ochiuzzo to be innocent of the charges in the complaint. Exoneration differs
from “not sustained” in that the latter means only that the proof is insufficient to support a finding of guilt.
When Respondent telephoned Chief McCoy and her liaison officer at approximately 1:00 a.m. on the morning of May 6, 2006, Respondent acted with wrongful intent for the purpose of benefiting another person from an act or omission during an active traffic stop. Respondent acted in a manner that was inconsistent with her public duties.
Respondent testified that she called Chief McCoy and Officer Johnson, not in her capacity as commissioner, but as a mother fearful for the safety of her son. Mr. Lynum testified that he sought his mother’s help out concern for his safety at the hands of a Caucasian police officer. The fact-finder finds the testimony of both witnesses to be less than credible and persuasive.
Mr. Lynum was on his cell phone when Officer Ochiuzzo approached the vehicle driven by Mr. Lynum. Mr. Lynum virtually ignored Officer Ochiuzzo. The actions of Mr. Lynum in ignoring an investigating officer risked antagonizing the officer and are inconsistent with a person in fear of physical harm. The testimony of Officer Ochiuzzo is illustrative.
Q. So what did you do next?
A. I exited my patrol vehicle and I approached Mr. Lynum’s car. . . .
Q. Okay. What happened next?
A. He was on his cell phone when I approached the window and the window was up, and I told him I was conducting a traffic stop and that I needed his license and registration, proof of insurance, and he didn’t respond.
Q. So at the initial approach of the vehicle, did you make any other gestures to get the driver’s attention or did you solely use voice commands?
A. Voice commands combined with my patrol car lights and chirping of the siren.
Q. So when you made these initial voice commands, did the driver respond?
A. No.
Q. So what did you do next to get his attention?
A. . . . I took my flashlight and I tapped the window to get the driver’s attention and instructed him again that I was conducting a traffic stop and I needed a license, registration, proof of insurance.
Q. And at that point did Mr. Lynum engage in the traffic stop?
A. No.
Q. What did he do?
A. He ignored it once again. He was on the cell phone. And so I pulled the door open and I told him that I was conducting a traffic stop. I needed his license, registration, proof of insurance.
TR at 35-36.
Officer Ochiuzzo returned to his patrol vehicle and began writing a uniform traffic citation when he was interrupted by the radio inquiry, which concluded by cell phone, from the liaison officer for Respondent. Officer Johnson informed Officer Ochiuzzo that Officer Johnson was Commissioner Lynum’s liaison officer and that Officer Ochiuzzo had stopped the commissioner’s son. After the conversation, Officer Ochiuzzo terminated the traffic stop.
When Officer Ochiuzzo pointed patrol vehicle lights into the rearview mirror of the vehicle of Mr. Lynum, shined a flashlight beam into the vehicle, and kept his free hand on top of his holstered pistol, it was not a threat to Mr. Lynum. It was standard procedure for traffic stops at that hour. When Officer Ochiuzzo was yelling at Mr. Lynum, it was because
Mr. Lynum had ignored the officer’s earlier attempts to redirect Mr. Lynum from the cell phone conversation and had failed to lower the window so the officer would not have been required to yell to be heard.
Mr. Lynum is an attorney who is familiar with police procedures during traffic stops through instructions from his father who was a law enforcement officer from 1969 through 1987 and ended his career as the chief of the Wildwood Police Department in Wildwood, Florida. Sean Lynum, Mr. Lynum’s brother, is a former officer in the same police department as
Officer Ochiuzzo. Respondent is very active in the community and familiar with police procedure.
A common safety precaution for a person who suspects he or she is a victim of racial profiling during a traffic stop is to ensure the site of the stop is well lighted and that the person is in contact by cell phone with a person who can be a witness. Mr. Lynum followed both precautions. He stopped in a well-lit area, and he was on his cell phone.
Complaints of racial profiling in the area had declined from 23 the year before Chief McCoy became the chief of the department to a consistent annual range of six to eight. Racial profiling was not an issue in the area until after
Mr. Lynum made his complaint. The testimony of Chief McCoy is illustrative.
This, after the fact, became quite a community event or issue, which sparked a lot of accusations of racial profiling. Our policy had been in effect as long as it’s been in effect.
The year before I was Chief, there was like 23 total racial profiling complaints made. The year I became Chief that dropped to like six or eight and that was-–that number was pretty consistent. Even after we had this community event issue, they still never got over 10, total.
The key is that if you have a complaint, you need to follow up on it. If people feel like they were stopped simply because they were-–of their race, then you need to do the
form and do it right and the officers know that-–or knew that.
Q. So, really, it did not become a community issue until after Commissioner Lynum’s son was stopped, racial profiling?
A. That would definitely be my perspective
. . . . it was not an issue.
TR at 278-279.
CONCLUSIONS OF LAW
DOAH has jurisdiction over the subject matter of and the parties to this proceeding. § 120.57(1), Fla. Stat. (2008). DOAH provided the parties with adequate notice of the final hearing.
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). Petitioner has the burden of proof. Petitioner must show by clear and convincing evidence that Respondent violated Subsection 112.313(6) and the reasonableness of the proposed penalty. Latham v. Florida Comm'n on Ethics, 694 So. 2d 83 (Fla. 1st DCA 1997).
Subsection 112.313(6) provides in relevant part:
§ 112.313. Standards of conduct for public officers, employees of agencies, and local government attorneys--
* * *
(6) MISUSE OF PUBLIC POSITION.--No public officer, employee of an agency, or local government attorney shall corruptly use or attempt to use his or her official position or any property or resource which may be within his or her trust, or perform his or her official duties, to secure a special privilege, benefit, or exemption for himself, herself, or others. This section shall not be construed to conflict with
s. 104.312.
The term "corruptly" is defined in Subsection 112.312(9) to mean that which is:
. . . 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 or her public duties.
Petitioner satisfied its burden of proof that Respondent violated the relevant statute. Petitioner showed by the requisite standard that Respondent was a public officer who used her official position to secure a special privilege or benefit for her son with wrongful intent and for the purpose of benefiting her son. Her actions were inconsistent with the proper performance of her official public duties.
Authorized penalties include impeachment; removal from office; suspension from office; public censure and reprimand; forfeiture of no more than 30 days' salary; a civil penalty not to exceed $10,000.00; and restitution of any pecuniary benefit received because of the violation committed. § 112.317.
Petitioner seeks public censure, a reprimand, and the imposition of a fine of $10,000.00.
Petitioner did not show by clear and convincing evidence that a fine of $10,000.00 is reasonable. Petitioner cited no legislative or administrative authority that prescribes guidelines for imposing authorized penalties. There is no evidence of prior ethical violations or financial or physical harm to the public or an individual.
report finding that Respondent violated Subsection 112.313(6) and publicly censuring and reprimanding Respondent.
DONE AND ENTERED this 23rd day of February, 2009, in Tallahassee, Leon County, Florida.
Filed with the Clerk of the Division of Administrative Hearings this 23rd of February, 2009.
1/ References to subsections, sections, and chapters are to Florida Statutes (2005), unless otherwise stated.
2/ Officer Ochiuzzo was driving on the same street in the opposite direction of Mr. Lynum when the officer observed the inoperable headlight. The officer made a “U” turn and stopped Mr. Lynum.
3/ A liaison officer assigned to a commissioner is not authorized to conduct personal business for the commissioner.
Jennifer M. Erlinger, Esquire Office of the Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050
Rick L. Jancha, Esquire NeJame, Lafay, Jancha, Ahmed,
Barker & Joshi, P.A.
Kaye Starling, Agency Clerk Florida Commission on Ethics Post Office Drawer 15709 Tallahassee, Florida 32317-5709
Philip C. Claypool
Office of the Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050
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.
