Findings Of Fact William J. Colello is a registered real estate broker holding license number 0147272 issued by the Board of Real Estate. Colello is the only active firm member for Cindy Realty of Hernando, Inc., a registered corporate broker holding license number 0181975. Sea Pines, Inc., was the developer of Sea Pines Unit Three Addition. Wet Water, Inc., is a water and sewage company regulated by the Public Service Commission of Florida. Sea Pines and Wet Water agreed that the first purchaser of real property in Addition Three to Sea Pines would owe Wet Water $540. This assessment covered the cost of providing the water and sewage service to the subdivision. This was later termed a service availability charge. In addition, the property owner would have to pay water and sewer hook-up charges. The purchaser could elect to pay the assessment in a lump sum or in 100 monthly installments of $5.50. Lot 197 of Sea Pines, Unit Three Addition, the piece of property involved in this dispute, was initially bought in 1974 by J. R. Martinez, who elected to pay the water and sewage assessment in monthly installments. Martinez paid the monthly installments for approximately a year and then ceased making the payments. Colello purchased Lot 197 on June 4, 1975, and sold it on June 16, 1975, to Dennis Garcia, who was Colello's brother-in-law at the time. Colello made no payments on the water and sewage assessment. However, Wet Water billed on the first of each month, and Colello did not own the property when the bill was due. Although the Public Service Commission approved a charge by Wet Water of $5.50 per month for service availability in late 1974, there was no evidence that Colello was aware of the change in position of the Public Service Commission. Wet Water sent bills to Colello from immediately after his purchase of the property in 1975 until December of 1977. Colello denied knowledge of these bills; however, there were no bills sent to Colello after December, 1977, and as a result of a letter sent by Wet Water to Colello in August of 1978, Wet Water learned that Lot 197 had been sold to Garcia. Colello had no knowledge of the bill after December of 1977, and after August, 1978, Wet Water knew that Colello was not the owner of the property. In 1979, although Garcia's sister and Colello had been divorced for a number of years, Garcia listed Lot 197 for sale through Cindy Realty. Pat Bramanti, a salesman for Cindy Realty, sold this property to James and Mildred Mulligan. The sales agreement provided for a warranty deed, a title search and title insurance for the Mulligans. Closing was handled through the title company, and the title search did not reveal any lien against the property. Some months after the closing, the builder retained by Mulligan to construct his house sought to have the water connected and was advised by Wet Water that the water could not be connected until the arrearage of monthly payments had been paid. This amounted to $280.50. Because water was needed to complete the construction, Mulligan paid the arrearage and the hookup fees. The records of Wet Water show that the $280.50 was due from Garcia. It was Wet Water's policy not to file liens against the property of owners who owed Wet Water money, which is why the title search failed to reveal the debt. There was no evidence that Colello knew of this policy. Colello had no personal contact with the Mulligans until after the problem arose over the arrearages. Colello advised Mulligan at the time the problem arose that if the debt did not appear in the records it was not Colello's concern. Mulligan was also advised of the 1974 decision by the Public Service Commission that Wet Water could not make the assessment. There is no evidence that Colello had knowledge of any change in the Public Service Commission's decision.
Recommendation Based on the foregoing Findings of Fact and Conclusions of law the Hearing Officer recommends that the Board of Real Estate dismiss its complaint and take no action against the Respondents. DONE and ORDERED this 18th day of February, 1982, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 18th day of February, 1982. COPIES FURNISHED: Grover C. Freeman, Esquire Suite 410, Metropolitan Bank Building 4600 West Cypress Tampa, Florida 33607 Harvey V. Delzer, Esquire Post Office Box 279 Port Richey, Florida 33568 C. B. Stafford, Executive Director Board of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802 Samuel Shorstein, Secretary Department of professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
The Issue On July 22, 1992, the State of Florida Commission on Ethics issued an order finding probable cause that Respondent, Winston W. "Bud" Gardner, as a member of the Florida House of Representatives, violated Section 112.313(4), Florida Statutes, by accepting an all-expense paid weekend trip to Key West in May, 1988, for himself and his wife, when he knew or should have known that the trip was given to influence his official actions. The issue here is whether that violation occurred, and if so, what discipline or penalty is appropriate.
Findings Of Fact Respondent was elected to the Florida House of Representatives in 1978, where he served until his election to the Florida Senate in November 1988. Respondent served in the Senate until November 1992. On May 20, 1988, Respondent and his wife, together with a group of other persons departed Tallahassee in private airplanes for a weekend trip to Key West, which the participants called the "Conch Conference". The group, with one exception, was comprised of lobbyists, legislators and their spouses or companions. Among the lobbyists on the trip were William McCue, who lobbies for insurance interests; Gary Guzzo, who lobbies primarily for insurance and health care service industries; Paul Sanford, who lobbies for several insurance companies, Southern Bell, S. E. Toyota distributors and others; Prentiss Mitchell, who lobbies for insurance interests, as well as the Glass Packaging Institute and the Florida Fruit and Vegetable Association; Michael Huey, who lobbies for various interests; Charles Hood, who represents Georgia Pacific; John Williamson, who represents CSX Transportation; and Robert Coker, who lobbies for U. S. Sugar. Gary Guzzo recalls these legislators on this or a prior year's trip to the Keys: the Respondent, Frank Messersmith, Carl Carpenter, Beverly Burnsed, Jon Mills, Ron Johnson, Sam Bell and Chris Meffert. (Guzzo, p.9) House Sergeant at Arms, Wayne Westmark, also attended. The prior year's trip to the Keys to unwind had been a success, so the trip was scheduled again at a hectic time during the closing weeks of the legislative session. Respondent recalls being invited by a group of lobbyists as he came off the floor of the House into the rotunda. (Gardner, pp.6-7) He knew his hosts were lobbyists and knew generally whom they represented. (Gardner, p.21) The lobbyists paid all the expenses of the legislators and their spouses, including food, lodging and entertainment. At least two lobbyists, including Guy Spearman who represents Anheuser-Busch, provided private planes which the group used to travel to and from Key West. The cost of the trip was approximately $673 per person. Because the lobbyists paid for both Respondent and his wife's expenses, the value to Respondent was $1,346. (Gardner Letter, p.4) In Key West, activities available to the legislators at the lobbyists' expense included diving, deep-sea fishing and golf. The Respondent and his wife went deep-sea fishing for a half-day on Saturday, went shopping, had dinner, and returned with the group to Tallahassee on Sunday. The lobbyists shared the cost of the trip equally and billed the expense to their clients, or in one case, to their law firm's governmental affairs expense account. Mr. Huey only billed clients who had issues pending before the Legislature at the time. Similarly, Mr. Mitchell billed only one client. The Respondent did not reimburse any of the lobbyists, nor did he offer to reimburse them or reciprocate by purchasing similar trips for them. He knew the lobbyists were not paying out of their own pockets. It is generally considered "bad form" to talk about business on trips such as this, but it was difficult to refrain entirely from talking about matters in which everyone present was interested; and legislative business invariably came up. Mr. Huey was sure he talked to Respondent about some legislative issues in Key West. (Huey, p.19) None, including Mr. Huey, can remember any specific issues, and it is unlikely that significant direct advocacy occurred on the trip. Lobbyists promote the interests of their clients before the Legislature, primarily by obtaining passage of bills or amendments which would help their clients and by defeating bills which would injure their clients. Influencing legislators is at the core of the lobbyist's vocation; it was the job of the testifying lobbyists to try and influence legislators. The trip came right before the final two weeks of the legislative session when most bills are passed. The persons selected for the trip were considered compatible and "fun" people, but they were also in leadership roles. The lobbyists were "senior type lobbyists". (Mitchell, p.11) Mr. Mitchell's clients had matters affecting their interests pending before the Legislature at the time, as did Mr. Huey's, Mr. Hood's, Mr. Coker's, Mr. Williamson's, Mr. Sanford's, Mr. McCue's, and Mr. Guzzo's. At the time of the trip, the Respondent was a member of the House of Representatives. He had been Chairman of the Finance and Taxation committee the year before and was, at the time of the trip, Chairman of the Rules and Calendar Committee. He also served on the Appropriations, Rules and Calendar, Education K-12 and Joint Legislative Information Technology Resource Committees. (Stip. No. 2) Rules Chair is a powerful position. In addition, since most bills go through the Appropriations Committee, this is an important committee assignment. Because Respondent had served in the House for ten years at the time of the trip, and because of his committee assignments, he was obviously in a position to help or harm the interests of the lobbyists. Mr. Mitchell and Respondent were friends, but their friendship centered on their business relationship. Mr. Mitchell stated, What we have to do in this process is when these folks come in, these freshmen, I have been around there for 23 years and nobody has been there longer than I have, so I have seen them all come in as freshmen, we try to make a determination as to who these people are going to be and whether they have leadership capabilities and certainly Bud is evidence by where he is today, we recognize that early on, so he became a good friend for that reason. (Mitchell, p.25, emphasis supplied) Mr. Huey's friendship with Respondent was also professional in nature. This was not a pleasure trip motivated by friendship between the Respondent and his hosts. The lobbyists hoped their expenditures would yield access and trust. These intangible returns are best described in their own words: I guess its hard to quantify. I think the opportunity to learn more about the specific issue or issues in general which may overall impact your clients is an opportunity that probably doesn't --there is no way that that information just gets sent out generally to the people who lobby, so the chance to be with legislators who are in particular positions and what have you, gives you maybe a chance to learn a little more about where the process is going to end up, not that they are disclosing anything to you that they wouldn't disclose to anybody else, but it gives you the chance to ask them. So I think the primary thing that you're doing is hopefully getting some more time to access the folks under circumstances that you may be able to explain your position under less time -- with fewer time constraints on them than trying to catch them in their office when they are on the phone and trying to talk to three other people in their office. (Huey, p.21) Flying an airplane or playing golf or whatever, it's a way in which we get to know those legislators and not that -- it's not that you may even discuss any business, but certainly flying an airplane and someone sitting over in the right seat, you have got an opportunity to talk to him. But even more important than that is that once you get back from a trip or once you get through playing golf with one of those guys, whether you talk business or not, certainly the next day if you were at the Capitol and you walked by his office, he is going to be more accessible to me than he would you if you had never met the guy. That's the reason we do an awful lot of entertaining and spending time with these fellows.. (Mitchell, p.26) * * * This process down here is so -- it's fairly sophisticated and fairly complicated and there's a lot of demands on legislators' time and, to be honest with you, sometimes if you're not known and I'm not to a lot of legislators, they don't know me personally, and without some sort of contact and identity that's already established, you're just another face in the crowd that they see every day, all day long and, you know, I guess in some respect it's similar to a salesman, you cultivate your customer if you can and try to get to know him and him to know you. It's just part of human nature, I think. (Hood, p.19) Well, you know, its like selling. You know, you get to know your customer better. I mean, we deal with these people, like you say, on a daily basis, and its just getting to know the legislators better so that you can talk with them. (Williamson, p.15) Well, you know, one of my responsibilities is to try to represent our company's interests in the legislative process. And in order to do that, I have to have a certain credibility with members. I've got to have a certain relationship with members, that they know me and they can count on me, that in the heat of the process over there, they can come to me and say, "Robert, I've got this issue that has come up. Tell me how it impacts agriculture. Tell me how it impacts your company." At the same time, when I find something in the process that is in our company's best interest and want to go and talk to somebody, it's nice to be able to know that they know me, and they will take time to talk to me about it. So from our company's standpoint, we felt like over the years the time that I spent and the resources that I invested in this process was worthwhile. (Coker, p. 17) Well, I think if a legislator knew me and knew that I was an honest person, that I had been with him and -- let's say we went dove hunting and killed a dove, and the legislator thought he shot the dove, and I said, "Mine, mine," and I did that every time a dove fell out of the air. He's going to say, "Wait a minute. This is a person you just can't trust." If I was playing golf with him or anything of that nature, if they saw that I was a person that had their same, if you will, likes and desires as far as recreational activities, I guess it was just a personal bond there. We became closer, and they would believe when I was dealing with them in a business fashion that I would have the same ethics that I had with them when I was dealing with them on a personal basis. Q So if I'm right here, it helps to establish a relationship? A A personal relationship. Q And that would be to your advantage if you had a personal relationship? A Certainly. (McCue, p.10) There is a direct nexus between that trust/access and the desired influence: I think my primary function as a lobbyist is to, first, monitor all legislation to determine what effect it may have on my clients, either positive or negative. After making that determination, you either try to kill or amend the bad legislation or promote the good legislation, good in the sense of the manner in which it affects your clients. In order to do that, I think that I have to provide good, correct information to the legislators and the staff people. I have to do everything in my power to make sure that my credibility with both those groups remains at the highest level possible and that I have access to those people in order to make sure my message has gotten to those people. And hopefully, if they believe that my position is a correct one, then they will accept that and go in the direction that I would like them to with respect to their vote. (Sanford, pp.6-7, emphasis added) As a ten-year veteran of the House of Representatives when this trip was taken, Respondent had been the guest of various lobbyists and/or their employers on a number of occasions. In his letter to the Ethics Commission, he writes: I think all the commission members should have an understanding of these first impressions. You are elected the first week in November and immediately take office. The Organization Session is two weeks later, but in those years, even before the Organization Session we were invited on our first trip - the party caucus - usually held away from Tallahassee. Most of the festivities associated with the caucus were paid for by the local community and lobbyists. That was immediately followed by the Organization Session which was also an escape from reality with its endless line of parties and receptions also paid for by lobbyists. Before the end of November we had received our initial notification of the Walt Disney World Legislative Weekend scheduled for February. Usually in January we received an invitation to another legislative weekend sponsored by a local community such as Dade County or Broward County or Duval county or Brevard County. That was usually scheduled for March or April so as to gain the most influence during the upcoming legislative session scheduled to begin in April. That was also an all expense paid trip for legislators and their families paid for by businesses from the local community and lobbyists. Lobbyists who contributed were allowed to attend. Also about this time was the Agriculture Weekend Getaway down around Lake Okeechobee, all paid for by agriculture lobbyists. By the time the first legislative session was ready to start, a new legislator was a seasoned traveler. (Letter, pp.1-2) Referring to the Disney weekend, Respondent points out that he is "sure that the $80,000 to $100,000 cost to Disney for the weekend was not a totally benevolent gesture on their part." (Letter, p.2) Regarding the Brevard weekend, Respondent quotes an April 1987 Florida Today newspaper as saying that the legislative weekend is an idea. "...that may in time prove to be worth more than the $50,000 or so that will be spent...", and he asks "[d]o you think the contributions to support these weekend getaways by lobbyists from outside the regional areas were nothing more than a benevolent gesture, also?" (Letter, pp.2-3) The Respondent also points out that one of the newspaper's lobbyists "took a special charter to Tallahassee to bring the Speaker of the house to Brevard so that he could have some 'quality' time with him." (Letter, p.3) These statements made by the Respondent reveal that he knew that the intent of the lobbyists was to influence him in the performance of his official duties. He observed that legislative weekends were usually scheduled for March or April "so as to gain the most influence during the upcoming legislative session scheduled to begin in April." (Letter, p.2, emphasis added) The Respondent also states: During my first year in the legislature I discovered that the Speaker Designate was a flying enthusiast. I was Commanding Officer of VMA-142 in Jacksonville. I worked for over a year to obtain permission to take the future Speaker up in a two seat jet attack aircraft. I wanted a good committee assignment when he became Speaker. (Letter, p.3, emphasis added) From the very beginning of his legislative career Respondent recognized the effectiveness of gaining access to powerful persons to influence their decisions.
Recommendation Based on the foregoing, it is, hereby, RECOMMENDED: That the Commission on Ethics enter its final order and public report finding that Winston W. "Bud" Gardner violated Section 112.313(4), F.S., and recommending a civil penalty of $1,346. DONE AND RECOMMENDED this 7th day of April, 1993, in Tallahassee, Leon County, Florida. MARY CLARK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 7th day of April, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-4946EC The following constitute specific rulings on the findings of fact proposed by the parties. The Advocate's Proposed Findings Adopted in paragraph 1. Adopted in paragraph 2. Adopted in substance in paragraph 3. The exact number was not established. Adopted in paragraph 4, except that it was not established that Guy Spearman was on the trip. Another lobbyist was mentioned, Bernie Parrish, but the evidence here does not establish that he was on the trip either. Adopted in substance in paragraph 5; although Guzzo's testimony related to both years' trips. Adopted in paragraph 6. Adopted in paragraph 7. Adopted in paragraph 8. Adopted in substance in paragraph 9, although not all billed their clients, as found in paragraph 9. Adopted in paragraph 10. Adopted in paragraph 11. Part II 1.-4. Adopted in summary in paragraph 12. 1.-6. Adopted in substantial part in paragraph 17. 7.-9. Adopted in paragraph 13. See Part I, paragraph 9, above. Adopted in paragraph 14. 12.-13. Adopted in paragraph 15. Rejected as unnecessary. Adopted in paragraph 10. 18.-19. Adopted in paragraph 16. 20.-23. Rejected as unnecessary. 24.-25. Adopted in substance in paragraphs 17 and 18. Part IV 1. Adopted in paragraph 5. 2.-4. Adopted in paragraph 10. 5.-6. Rejected as unnecessary. Adopted in paragraph 19. Adopted in paragraph 20. Adopted in paragraph 21. Adopted in paragraph 22. Adopted in substance in paragraph 23. Adopted in paragraph 24. 13.-15. Rejected as cumulative or unnecessary. Respondent's Proposed Findings of Fact 1.-2. Rejected as unnecessary. Addressed in Conclusions of Law paragraph 27. Addressed in Preliminary Statement. Adopted in paragraph 14. Adopted in paragraph 2. Adopted in substance in paragraph 13. Rejected as unnecessary. Adopted in part in paragraph 5, otherwise rejected as irrelevant. 10.-11. Rejected as irrelevant. Adopted in part in paragraph 5. While relaxation was the reason for the venue, it was not the trip's primary purpose as established by the greater weight of evidence. Adopted in part in paragraph 17. Access was, however, the primary rather than secondary purpose. Adopted in paragraph 12. Rejected as contrary to the evidence. Rejected as unnecessary. 17.-19. Adopted in substance in paragraph 13. Rejected as unnecessary. Actually, this reply by Respondent further evidences his knowledge of the lobbyists' clients' reason for paying for the trip. Adopted in paragraph 8. Adopted in part in paragraph 9, otherwise rejected as contrary to the weight of evidence. Rejected as unnecessary. Adopted in part in paragraph 7. The exact number of lobbyists contributing was not established. Rejected as irrelevant. Rejected as unnecessary. The cost of the trip is relevant, but Respondent's belief that the cost was "fairly minor" is either not credible (if calculated to disavow his knowledge of the intent to influence) or simply inconclusive. "Fairly minor" is meaningless. 27.-30. Adopted in paragraph 19. 31.-32. Rejected as unnecessary or irrelevant. The lobbying need not occur on the trip for the influence to be exercised. 33.-36. Adopted in substance in paragraph 11. Rejected as unnecessary or contrary to the weight of evidence. The friendships were professional, according to the evidence. Adopted in paragraph 17. Rejected as irrelevant, except for the statement that Respondent never felt as though anyone was trying to influence him in any way, which statement is rejected as contrary to the greater weight of the evidence, including evidence from Respondent's own statements. COPIES FURNISHED: Virlindia Doss Assistant Attorney General Department of Legal Affairs The Capitol, PL-01 Tallahassee, Florida 32399-1050 Leonard J. Dietzen, III, Esquire Parker, Skelding, Labasky & Corry 318 North Monroe Street Post Office Box 669 Tallahassee, Florida 32302 Bonnie Williams Executive Director Ethics Commission Post Office Box 6 Tallahassee, Florida 32302-0006 Phil Claypool General Counsel Ethics Commission Post Office Box 6 Tallahassee, Florida 32302-0006
Findings Of Fact The Petition herein was filed by Petitioner with PERC on December 29, 1975. (Hearing Officer's Exhibit 1). The hearing in this case was scheduled by Notice dated January 22, 1976. (Hearing Officer's Exhibit 2). The City of Sunrise is a Public Employer within the meaning of Florida Statutes s447.002(2). (Stipulation, Transcript page 7) 1/ The Petitioner is an association which is seeking to represent public employees in matters relating to their employment relationship with a public employer. The Petitioner requested recognition from the Public Employer as the exclusive bargaining representative for employees in the Public Employer's Utilities Department. The request was denied by the Public Employer. There is no contractual bar to holding an election in this case. (Stipulation, TR 7, 8). There is no pertinent collective bargaining history that will affect this case. (Stipulation, TR 8). PERC has previously determined that the Petitioner is a duly registered employee organization. (Hearing Officer's Exhibit 3). No evidence was offered at the hearing to rebut the administrative determination previously made by PERC. PERC has previously determined that the Petitioner filed the requisite showing of interest with its petition. (Hearing Officer's Exhibit 4). No evidence was offered at the hearing to rebut the administrative determination previously made by PERC. The Public Employer operates under the form of government commonly referred to as the "strong Mayor-Council form of government". The City Council serves as the legislative body of the Public Employer, and the Mayor is the Chief Executive Officer. Public Employer's Exhibit 1 accurately describes the organization of the Public Employer. The Public Employer is roughly divided into twelve different departments, excluding the Police and Fire Departments. Each department is headed by a department head who answers to the Mayor. The Public Employer employs approximately 200 persons, approximately 25 percent of whom are clerical employees. There are approximately 55 to 60 persons in the bargaining unit proposed by the Petitioner, 12 to 15 of whom are clerical employees. The department heads are generally responsible for the day-to-day functioning of their department. The department heads will initiate hiring, firing, discipline, and promotion of employees; however, such action must be approved by the Mayor. Respecting hiring and firing, the Mayor goes against the recommendations of the department heads approximately 30 to 40 percent of the time. With respect to disciplinary action, the department head submits recommendations to the Mayor in the form of a memorandum. In the Water and Sewer Department the recommendation would go from the Director of the Utilities Department to the City Engineer to the Mayor. The department head will make all decisions respecting shift changes, lunch hours, and vacations; however, an aggrieved employee can always go to the Mayor. The department heads regularly evaluate employees in their department, and make recommendations respecting merit pay increases based upon the evaluations. The Mayor has a practice of always approving recommendations for merit pay increases if money is available in the budget. The Mayor is responsible for preparing a proposed budget to be submitted to the City Council. The department heads provide the Mayor with information respecting the budgetary needs of their departments. The department heads meet on a monthly basis as a group to discuss safety programs. Safety policies are formulated at these meetings. The department heads are responsible for granting leave time; however, this responsibility is apparently delegated to the chief operator in the Water and Sewer Department. Public Employer's Exhibit 2 is a computer read-out of all of the Public Employer's employees other than those in the Police and Fire Departments. Those employees who the Public Employer considers to be managerial, confidential, or professional employees within the meaning of the Public Employees Relations Act are designated respectively on the exhibits by the hand written letters "M", "C", or "P". The hand written numbers on Public Employer's Exhibit 2 refer to the page number where the job description of the employee appears in Public Employer's Exhibit 3. Public Employer's Exhibit 3 is a compilation of the job descriptions of all of the Public Employer's employees other than those in the Police and Fire Departments. The descriptions were prepared in January, 1976, and accurately describe the duties, responsibilities, and day-to-day activities of the employees. All employees of the Public Employer other than those in the Police and Fire Departments are compensated under the same pay plan, and receive the same benefits. All employees are given eleven paid holidays, ten paid sick days, and ten paid vacation days annually. All employees participate in the same hospitalization and pension plans. All employees are issued uniforms and safety equipment by the city; however, clerical employees are responsible for maintaining their own uniforms. Christmas parties and other social functions for the employees are open to all employees of the city. There are no functions open to the employees of only one department. Transfers of employees from one department to another are fairly common. Job openings and promotions in a department are always advertised and made available to employees in all departments before they are advertised or made available to non-employees. The departments of the Public Employer generally work together. Many employees in the Public Works Department have the same job description as employees in the Utilities Department. When necessary, employees in one department will assist in performing the functions of another department. The Utilities Department is divided into the Gas Department, the Water and Sewer Field Maintenance Department, and the Water and Sewer Treatment Plants. These departments produce services for a fee to the inhabitants of the City of Sunrise, as do the Spring Hill Country Club and the Recreation Department. Employees in the Water and Sewer Departments are on duty 24 hours daily. Each employee works a fixed 8-hour shift. Most other employees of the Public Employer work a day-shift only. Employees in the Water and Sewer Department do not generally work in one place. Clerical employees generally work full time at City Hall. It is apparent that transfers between manual positions and clerical positions are rare, and have probably never occurred. The work performed by clerical employees is different than the work performed by employees in the Water and Sewer Departments. The only testimony presented at the hearing respecting the desires of the employees was that employees in the Water and Sewer Departments would like to have their own bargaining unit. The Utilities Department is separately budgeted, and the only employee who testified expressed an interest in using the revenue of the department for the benefit of the employees in the department. All employees of the Public Employer are eligible for membership in the Petitioner. DONE and ORDERED this 6th day of April, 1976 in Tallahassee, Florida. G. STEVEN PFEIFFER, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675
The Issue This case is presented for consideration based upon a claim by the Petitioner, E. R. Brannon, Sr. against the Respondent, Brevard County Sheriff's Department, contending that the Respondent, by its employment practices, has unlawfully discriminated against the petitioner Brannon related to an alleged handicap, in violation of Subsection 23.167(1)(a), Florida Statutes. In view of this purported violation, Petitioner Brannon requests money damages in the way of back salary payments and benefits, together with attorney's fees, in keeping with Subsection 23.167(13), Florida Statutes. The Petitioner Brannon declines the opportunity for any reinstatement in his former employment with the Brevard Sheriff's Office. In defending against these accusations, the Respondent has plead certain affirmative defenses and contends that its action dismissing the Petitioner Brannon was lawful in view of the provision, Subsection 23.167(8)(a), Florida Statutes, specifically related to the portion of that provision dealing with taking action based upon the need for an absence of a particular handicap as related to a "bona fide occupational qualification reasonably necessary for the performance of the particular employment to which such action or inaction is related."
Findings Of Fact Case History On April 2, 1979, the Petitioner, F. R. Brannon, Sr., executed a form complaint of discrimination with the Petitioner, Florida Commission on Human elations, which challenged his dismissal by the Brevard County Sheriff's Department, which occurred on January 5, 1979. After reviewing the complaint, the Petitioner Commission, by action of September 11, 1980, as filed on September 16, 1980, made its determination of case, i.e., reasonable cause to believe an unlawful employment practice had occurred reference the Brevard County Sheriff's Department's dismissal of the Petitioner Brannon. A separate notice of the determination of cause was forwarded to the complainant Brannon and the Respondent, Brevard County Sheriff's Department, on September 16, 1980. Efforts were then made to reach conciliation between the contesting parties and these efforts were unsuccessful and notification of this failure of conciliation was forwarded by the Commission on October 21, 1980. On November 21, 1980, counsel for the Petitioner Brannon made known his appearance before the Commission through written Notice of Appearance and filed a Petition for Relief on the subject of the aforementioned claim brought by the Petitioner Brannon. By document dated November 25, 1990, and placed on file November 26, 1980, the Commissioners of the Florida Commission on Human Relations were notified of the filing of Brannon's Petition for Relief from alleged unlawful employment practice. Subsequent to that notification, Brannon's Petition was transmitted to the State of Florida, Division of Administrative Hearings for consideration of the claim. This transmittal was made on November 26, 1980, and received by the Division of Administrative Hearings on December 1, 1980. On December 1, 1980, counsel for the Respondent, Brevard County Sheriff's Department, filed its answer to the Petition and statement of affirmative defenses. The Respondent also, by motion of that date, moved to dismiss the Petition. The Motion to Dismiss was denied on December 12, 1980. On December 31 1980, the Respondent, in the person of its former counsel, Charles F. Broome, Esquire, wrote to the Hearing Officer to advise that there had been a change in administration in the Brevard County Sheriff's Office and that the newly elected sheriff wished to have a substitution of counsel. There ensued a series of contacts on the part of this Hearing Officer to establish a hearing date which would accommodate the change in administration and substitution of counsel. After consultation with the parties, the month of March, 1981, was tentatively selected as a time for hearing. This determination was made upon consultation with counsel for the parties, to include Catherine Riley, Esquire, the substituted counsel for the Brevard County Sheriff's Office. The case was subsequently scheduled for hearing on March 9, 1981. Prior to the time for hearing, a letter was written by counsel for the Respondent on January 16, 1981, to advise that one of her witnesses was unable to attend the hearing until after March 30, 1981. By correspondence dated January 22, 1981, in response to the letter of January 16, 1981, which had been addressed to counsel for the Petitioner, counsel for the Petitioner acquiesced in the continuance of the hearing and asked that the matter be set at the first available date beyond March 29, 1981. The correspondence was treated as a motion to continue the case on behalf of the Brevard County Sheriff's office, and the matter was reset for hearing on April 9, 1981. The Respondent, Brevard County Sheriff's Department, had also moved to file an additional affirmative defense, and this motion was granted on February 2, 1981. The initial session of the hearing was held on April 9, 1981, and continued until May 29, 1981, allow the hearing to be concluded. The hearing was concluded on May 29, 1981, and this Recommended Order is being entered after such hearing. In the way of argument, the parties have submitted written memoranda through counsel and have suggested proposed findings of fact, conclusions of law and recommended disposition in this matter. To the extent that those proposals, conclusions and recommendations are consistent with the Recommended Order, they have been utilized. To the extent that the proposals, conclusions and recommendations are inconsistent with this Recommended Order, they are hereby rejected. Material Facts The Petitioner, E. R. Brannon, Sr., is an individual who was forty- three (43) years of age at the time of the formal hearing. In the course of his adult life he has worked primarily in law enforcement for a period of sixteen (16) to seventeen (17) years, to include service to the Lake City, Florida, police Department; Eau Gallie, Florida, Police Department: Melbourne, Florida, Police Department; two periods of service with the Brevard County, Florida, Sheriff's Office; the Orange County, Florida, Sheriff's Office and the Marion County, Florida, Sheriff's Office. On July 4, 1974, while working for the Marion County Sheriff's Office as a line deputy, the Petitioner Brannon was shot in his left side and left hand in an attempt to apprehend a felon. He was given a period of convalescence by his employer and then returned as an investigator for the Marion County Sheriff's Office. In September, 1976, after being returned to duty, the condition in his left hand was exacerbated by another job related injury, leading to the eventual amputation of his left hand on November 9, 1980, after the hand had become gangrenous. This final treatment intervention followed a series of approximately twenty (20) operations over the period of time following the initial gunshot wound. The Petitioner Brannon left his employment with Marion County and in January of 1977, took employment with the Brevard County Sheriff's Office where he was hired as a Lieutenant in charge of the division dealing with communications and vehicle maintenance. At all pertinent times to this inquiry, his employer, the Brevard County Sheriff's Office, was an employer with fifteen (15) or more persons working for that entity, for a period of twenty (20) weeks or more during the year. While Brannon was working for the Brevard County Sheriff's Office, he was placed in the position of Captain, awaiting pay adjustment to that grade. At the time of his dismissal from the Brevard County Sheriff's Office on January 5, 1979, he was receiving a salary of approximately $1,260.00 per month, with an additional $175.77 per month contributed for the benefit of his retirement. While serving as the Division Commander of the Communications and Maintenance Unit of the Brevard County Sheriff's Office, Brannon had as many as thirty (30) persons under his supervision. Brannon bad been hired by Sheriff Ronald W. Zimmerman and worked for that individual until September, 1978, when Zimmerman was suspended. Following Zimmerman's suspension from September, 1978, until January 5, 1979, the date of his discharge, Brannon worked for Sheriff David U. Strawn. During the course of Brannon's service under the command of Sheriff Strawn, the problem with Brannon's hand caused him mild to severe pain and led to frequent usage of Demerol and Vistaril to accommodate this problem. Although the visits were not made during working hours per se, Brannon made numerous visits to a local hospital during the September, 1978, to January 5, 1979, time frame, for purposes of treatment. The degree of his discomfort and the effect on Brannon was such that by January 30, 1979, his treating physician, Dr. Maurice Hodge, was of the opinion that Brannon was "totally disabled because he is unable [sic] to use his hand for any gainful purpose. See Petitioner's Exhibit No. 6, admitted into evidence and attachment identified as Respondent's No. 1. Notwithstanding the physical discomfort, Brannon attempted to perform his role as Deputy Sheriff and supervisor; however, there were numerous absences from duty during the time of the Strawn administration, to include a period December 18, 1978, through December 30, 1978. All of these absences were accounted for as authorized holidays, annual leave or sick leave. James H. Garvin, presently a Captain in the Brevard County Sheriff's Office, in the position of Jail Supervisor, was emoloyed with that Sheriff's Office during Sheriff Strawn's tenure. At that time, his office in the Sheriff's complex building was located adjacent to that of Brannon and to the extent that the two officers had contact, Garvin did not have difficulty with work coordination involving Brannon. Other officers who had association with Brannon during the time of Strawn's service as Sheriff, included Johnny L. Manis, who was a Captain in 1978, in the Brevard County Sheriff's Office. The communication section was included in his area of responsibility and upon Brannon's dismissal, Manis took over the responsibilities which Brannon had fulfilled in the communications section. Upon taking over, Captain, now Lieutenant, Manis, found the morale in that section to be less than acceptable and the turnover rate to be, in his estimation, excessive. Captain Charles Tenvooren who served as a Major in the Strawn administration, had supervisory responsibility for Brannon in that time period and recalls that Brannon was in the hospital at times. Tenvooren knew that Brannon was being treated for the condition related to his arm and hand and observed impairment in Brannon's job function. As supervisor, he spoke with Sheriff Strawn about the medication that Brannon was taking. Tenvooren also spoke with Brannon about the problem of impairment related to the injury to the arm, as described by the witness Tenvooren. Brannon, in talking with Tenvooren, mentioned the pain which he was experiencing. Lieutenant Harmon B. Wisby testified in the course of the hearing. When Strawn was Sheriff, Lieutenant Wisby was the coordinator of the reserve auxiliary group of the Sheriff's Department. During that time sequence, Wisby was aware of the fact that Brannon was under medication, information he gained from conversations he had with Brannon. Brannon indicated ythat he was having pain and that he was to go back to the hospital. Brannon also indicated to Wisby that he had been given medication to assist him in coping with the pain. Wisby recalls several times when Brannon did not seem aware of his surroundings while he was in the office building, in that Brannon would not respond to him when spoken to in the form of a greeting. Alice Alderman who is a Communications Officer with the Brevard County Sheriff's Office, who worked in the communications section while Brannon was supervisor during the Strawn administration, testified at the hearing. She admits that she had a personality conflict with Brannon. Nonetheless, she testified that during this time sequence he seemed to be "distant." Another employee within the communications section who testified at the hearing was Debbie Walden who was a Communications Dispatcher in the Brevard Sheriff's Office at the time that Strawn was Sheriff. Brannon was her shift supervisor and she recalls numerous absences by Brannon, who from her recollection worked on the same shift on which she was employed. She also indicated that morale was a problem at the time that Brannon was in charge of the section. On January 5, 1979, through correspondence, Sheriff Strawn dismissed Brannon. A copy of the dismissal may be found as Petitioner's Exhibit No. 5, admitted into evidence. In the course of the hearing, Strawn indicated that his decision to dismiss no basis for the correspondence was premised on evidence gained from other personnel in the Sheriff's Office; the medical reports pertaining to the Petitioner's physical condition related to his hand; the prognosis on that condition; the uses of pain medication; a few personal observations of the Petitioner in which Strawn felt the Petitioner to be "spacey"; the belief that the Petitioner was not capable of line duty, i.e., responsibilities as an armed deputy; the problem which Brannon appeared to have approaching his job with a "clear head"; the high turnover in the communications section, indicating a problem with management by Brannon; a property control problem related to equipment which Brannon had in his charge and Brannon's lack of ability as an administrator and supervisor. All of Strawn's background reasons and observations were an accurate depiction of the circumstance with the exception that there was insufficient proof in the course of the hearing to demonstrate that Brannon had acted inappropriately on the subject of property control of equipment in the communications section. Likewise, reported observations by coworkers are correct. In particular, the use of pain medication for the handicap related to the injured arm and hand was such that Brannon was incapable of performing the duty of a line officer charged with the direct protection of the public and the possibility of use of force to effect that purpose. This medication also compounded Brannon's problems as an administrator. When the dismissal letter was drafted, the prime focus of that letter was to the effect that the Sheriff's Office was concerned about Brannon's return to employment duties because of the belief by the Department that there would be exposure for liability in terms of workmen's Compensation claims by Brannon, in that the Sheriff's office believed that they would be entirely liable for physical disability if Brannon suffered an "industrial accident" while acting in the scope and capacity of his position within the Department. In further explanation, it was stated that the Department believed the health circumstance of Brannon was intense in view of the pain and associated use of special medications. For these reasons, Strawn was concerned that any negligent act by Brannon could result in liability for the Department, apparently from claims by third parties. The letter of dismissal went on to say that his duties were not being performed as well as expected because of Brannon's physical condition and the necessity for taking drugs to cope with those problems and further concern for fellow officers and members of the public. This statement can be related to Brannon's potential abilities as a lane officer and his primary function as supervisor of the communications and maintenance section. (Notwithstanding the fact that Brannon was not serving on a day-to-day capacity as a line officer, as a Deputy Sheriff he could reasonably be expected to be pressed into service in the eventuality of some emergency which called upon all appointees within the Sheriff's Office who are deputies to serve in that capacity, and as Brannon himself stated at the hearing, Sheriff's deputies are technically on duty twenty-four (24) hours a day.) Finally, the impression was created in the hearing process that the Strawn administration had been concerned about Brannon's absenteeism and morale in his section. Although this is not expressly stated in the letter of dismissal, the facts presented in evidence bear out the contention that Brannon was absent an inordinate number of times, notwithstanding the fact that the absences were taken under legitimate leave principles, and there were problems related to morale in the communications section. In addressing Strawn's worries, there was no procedure undertaken for formal evaluation of Brannon's performance. Sheriff Strawn did discuss Brannon's physical condition with him and what the Sheriff perceived to be a problem with the communications equipment inventory control system. On January 8, 1979, Brannon began to look for alternative employment and gained such employment with the Brevard County Public Safety Division, within the Brevard County Board of County Commissioners on march 26, 1979, and was employed by them until January 14, 1981. During the course of his employment, he received $16,812.40 in gross earnings, and was provided life insurance commensurate with his annual salary, as well as health insurance. In addition, this employer "paid-in" at the rate of 9.1 percent of annual salary, into a retirement system. This payment to the retirement system was not made during leave without pay between July 1, 1980, and August, 1980. Following his employment with the Brevard Counts' Public Safety Division, Brannon worked for the Sheriff of Lake County, Florida, eighteen (18) to twenty (20) days, a month maximum. Following Brannon's dismissal from the Brevard County Sheriff's Office, he also requested social security disability benefits in the summer of 1980, and that claim is now pending.
The Issue The following issues were presented by the Petitioner or arose at hearing: Was a proper investigation and showing of interest made in this Petition? Should Assistant Sorensen be included or excluded from the proposed unit? Whether the appropriate unit should be composed solely of personnel within the Road and Bridge Department.
Findings Of Fact The Respondent. The Respondent, Ilene Lieberman, is the Mayor of the City of Lauderhill, Broward County, Florida (hereinafter referred to as the "City"). The City is a municipal government in the State of Florida. The Respondent has served as Mayor of the City since March of 1988. For approximately four years prior to her election as Mayor, the Respondent served on the City Council of the City. At all times relevant to this proceeding, the Respondent served as Mayor of the City or on the City Council of the City. The Initial Accusation of Sexual Harassment and the Decision to Investigate. From approximately 1988 to 1990, Vita Gunther was employed in the Finance Department of the City as a property control clerk. While employed in the City Finance Department, Ms. Gunther's immediate supervisor was Michael Arciola. Michael Arciola was employed by the City as finance director for the City on March 5, 1981. On Tuesday, July 12, 1988, Ms. Gunther requested a meeting with Robert Lee, assistant to the Respondent. Mr. Lee served as assistant to the Mayor of the City from 1984 to 1990. Mr. Lee was first hired as assistant to the Mayor by David Kaminsky, the Respondent's immediate predecessor. During the July 12, 1988, meeting with Mr. Lee, Ms. Gunther complained about the manner in which Mr. Arciola treated her as an employee. Ms. Gunther was upset and told Mr. Lee that Mr. Arciola's treatment of her made her feel very uncomfortable. Mr. Lee asked Ms. Gunther questions and she began to relate specific examples of Mr. Arciola's conduct, which will be described, infra. Following the July 12, 1988, meeting, Mr. Lee contacted Attorney Richard Weiss to determine how Ms. Gunther's complaint should be handled. Mr. Lee attempted unsuccessfully to contact Mr. Weiss on July 12, 1988. Mr. Lee speak to Mr. Weiss on July 13, 1988. Richard Weiss was an attorney hired by the City to provide legal counsel regarding labor matters. Mr. Weiss had been hired by the Respondent's predecessor in approximately 1987. Mr. Lee met with Ms. Gunther again on July 13, 1988. They met at a restaurant during Ms. Gunther's lunch break because Ms. Gunther wanted her complaint to remain confidential. During the July 13, 1988, meeting between Ms. Gunther and Mr. Lee, Mr. Lee, upon the advice of Mr. Weiss, took notes of the events which Ms. Gunther related to him. Ms. Gunther made the following allegations against Mr. Arciola during the July 13, 1988, meeting with Mr. Lee: Mike Arciola, the City's Finance Director and Vita's immediate supervisor called her at home on numerous occasions since she has worked for the City is working for City approximately one year. When Mike called, he asked whether he could come over to her house or go out to dinner with her. The most recent call was approximately 2 to 3 weeks ago. He again asked her out to dinner and when she refused, (as she always does), he asked whether he could come over to help her pack, as he knew she was planning to move to another house. She again said no, and explained to him that she wants nothing more than an employee/ employer relationship. Since that time, Mike has been very dictatorial, abrupt, and demanding of her work. She has gone home crying the last two nights. Up until 2 to 3 weeks ago, he made her feel uncomfortable by saying she smells nice, that she has a nice smile and a great body. She says that he has not threatened her job. As soon as Mike becomes aware that she is dating, he becomes short and dictatorial. She said she has never attended any functions with him, although asked many times. She said at Christmas he gave everyone in the department a basket of goodies: hers was the only one that included a stuffed animal. She claims she received a card which contained language that should not be given to an employee. She kept card. She said that Mike has talked to Valerie, a co-worker of Vita's, and told her that he's not getting to first base with Vita nor getting the time of day. Vita said that Valerie told her that this kind of harassment [sic] was the reason Mike's former secretary left. Mike also talked to another co-worker, Ruby, about Vita. Vita's roommate (female) and Vita's 12 year old daughter know of Mike's calls. Vita is afraid of Mike. She's afraid he will force her out of her job if she testifies. She's willing, though, to sign statement. The foregoing allegations were included in a document which Ms. Gunther swore to and signed on July 18, 1988. See Exhibit 5. The greeting card Ms. Gunther referred to in her statement included the following: In April, you can fool some of the people some of the time, and you can fool all of the people all of the time . . . and you can fool most of the people part of the time, and you can fool a lot of other people most of the time . . . . But you can fool around with me anytime! Happy April Fools' Day! Mr. Arciola acknowledged that he sent this note to Ms. Gunther. At the close of the meeting with Ms. Gunther on July 13, 1988, Mr. Lee told Ms. Gunther that the allegations were serious enough to require that he advise the Respondent. Ms. Gunther voiced not objection. Following the July 13, 1988, meeting with Ms. Gunther, Mr. Lee met with the Respondent and the City personnel director, Fritz Richter. Mr. Lee informed the Respondent of his meetings with Ms. Gunther and her allegations. Mr. Lee read his notes from his meeting with Ms. Gunther to the Respondent. During the meeting between Mr. Lee, the Respondent and Mr. Richter, on July 13, 1988, the Respondent spoke with Richard Michelson. Richard Michelson is the City Attorney for the City. Mr. Michelson has served as City Attorney since June 1, 1988. The Respondent, on advice from Mr. Michelson, also spoke to Mr. Weiss by telephone. Mr. Weiss advised that Ms. Gunther's allegations should be reduced to writing and should be sworn to by Ms. Gunther. The allegations made by Ms. Gunther were reduced to writing and were signed under oath by Ms. Gunther on Monday, July 18, 1988. Ms. Gunther's statement has been included in finding of fact 16, supra. The Respondent directed that the allegations made by Ms. Gunther be investigated. Based upon the information provided to the Respondent on July 13, 1988, she reasonably concluded that the allegations were serious and should be investigated. The Decision to Suspend Mr. Arciola. Because of concerns expressed by Ms. Gunther and Mr. Weiss's advice, the Respondent decided that Ms. Gunther should not be required to return to her normal assignment to Mr. Arciola. On or about July 13 or 14, 1988, the Respondent assigned Ms. Gunther to a special project and told Ms. Gunther not to go back to her normal assignment. Ms. Gunther was told to report directly to the Respondent. The Respondent also informed Mr. Arciola that Ms. Gunther had been assigned to a special assignment and that Ms. Gunther would not be able to communicate with Mr. Arciola while on the special assignment. Mr. Arciola was not informed of the real reason that Ms. Gunther had been reassigned. The Respondent's action in reassigning Ms. Gunther were reasonable in light of the accusations Ms. Gunther had made and based upon the advice of counsel that to leave Ms. Gunther under Mr. Arciola's supervision after officials of the City had been made aware of the accusations would jeopardize the City's liability for any harm Ms. Gunther might be subjected to. The Respondent's action in reassigning Ms. Gunther and her instructions to Mr. Arciola were consistent with her power as Mayor. On July 14 or 15, 1988, Ms. Gunther informed Mr. Lee that Mr. Arciola had attempted to contact her. Ms. Gunther asked Mr. Lee what she should do. Based upon instructions from the Respondent, Mr. Lee met with Ms. Gunther and the City personnel director and instructed Ms. Gunther not to return Mr. Arciola's telephone calls or see him. Mr. Lee, in the presence of the personnel director, telephoned Mr. Arciola and reminded him of the Respondent's instructions about not contacting Ms. Gunther. The Respondent also reminded Mr. Arciola that he had been instructed not to contact Ms. Gunther. Mr. Arciola became abusive and, in blatant disregard for lawful instructions from the Respondent, indicated that he intended to reprimand Ms. Gunther if Ms. Gunther did not follow his instructions. On the morning of July 18, 1988, Mr. Arciola was waiting at the time clock when Ms. Gunther arrived at work and he gave her a letter of reprimand. In blatant disregard for the Respondent's orders to Mr. Arciola and, in an extreme case of overreaction, Mr. Arciola formally reprimanded Ms. Gunther for following the Respondent's orders and not his. Mr. Arciola informed Ms. Gunther, in part, as follows: You are charged under Civil Service Rules and Regulations, Separation, Retirement and Disciplinary Action, Section 4, Dismissal for: Willful violation of any lawful and reasonable regulation, or order or direction made or given by a superior officer where such violation has amounted to insubordination or serious breach of proper discipline or has resulted in loss or injury to the public. Failure to follow established Personnel Policy and Procedures. Exhibit 8. Mr. Arciola went on to state: I am really disappointed with you in the manner in which you have conducted yourself during the past two days, and I am sorry that the Mayor has created this terrible situation with a member of my staff who I regarded as a trusted employee. Mr. Arciola knew that Ms. Gunther had been told not to return his telephone calls and not to obey his orders. Mr. Arciola's action in reprimanding Ms. Gunther, despite his knowledge as to why she had not obeyed him, corroborated Ms. Gunther's allegations about Mr. Arciola. Ms. Gunther informed the Respondent of the formal reprimand from Mr. Arciola. After learning of Mr. Arciola's reprimand, the Respondent decided to suspend Mr. Arciola with pay on July 18, 1988. The reason why the Respondent suspended Mr. Arciola was explained by the Respondent as follows: A. After Vita had come up that morning with the memo on insubordination, we immediately tried to reach Rick Weiss as what do we do next? We told him to stay away from her. We told him not to have any contact. I specifically told him not to cite her for insubordination, which he threatened to do on Friday. He waist for her at the time clock and hands her this memo, which he was told Friday not to do. How am I going to calm Vita down and make sure that she doesn't feel that he's going after her and investigate her allegations when he's not following simple requests like, don't have any contact with her? And Mr. Weiss just said to us, you're not going to be able to do an investigation unless you suspend him. We suspended him with pay. We didn't suspend him without pay. Reason being is at that point all we had were allegations. We had not reached a determination as to whether or not the allegations were substantiated. So until we did that we suspended him with pay so that he would not be present at his job and we could conduct the investigation. Because Vita was going crazy as he pulled each new stunt. Deposition of the Respondent of July 1, 1991, page 87, lines 4-25 and page 88, lines 1-2. Mr. Weiss and Mr. Lee both recommended to the Respondent that she suspend Mr. Arciola before she made her decision. The Respondent's action in suspending Mr. Arciola was reasonable in light of the information she had at the time and Mr. Arciola's bizarre behavior. The Respondent's action tended to protect Ms. Gunther and the City, and was fair to Mr. Arciola. Mr. Arciola met with the Respondent and Mr. Lee sometime on July 18, 1988. Mr. Arciola was given a memorandum from the Respondent informing him that he was being placed on leave with pay, that he had been charged with sexual harassment of a subordinate female employee (Ms. Gunther) and that a pre- termination meeting had been scheduled for July 22, 1988, at which Mr. Arciola could respond to the charges. Exhibit 9. At the time that the Respondent gave Mr. Arciola Exhibit 9, the Respondent told Mr. Arciola that she did not know whether the allegations against him were true but that if he wanted an opportunity to resign she would give him such an opportunity. This action was reasonable in light of the aggravation to the City, the individuals involved and others that the Respondent probably anticipated would follow and, in fact, has followed as a result of Mr. Arciola's actions. Mr. Arciola ultimately informed the Respondent that he did not intend to resign. On July 20, 1988, upon the advice of Mr. Weiss, the Respondent sent Mr. Arciola a letter setting out in more detail the charges against him. Mr. Arciola was again informed that it had been recommended that he be terminated from employment with the City and he was reminded of his opportunity to explain his position on July 22, 1988, in person and/or in writing. Exhibit 11. The Respondent's action in sending the July 20, 1988, letter was reasonable. The Investigation of Mr. Arciola. Mr. Weiss essentially directed the course of the investigation ordered by the Respondent. Interviews with various employees were conducted. On July 13, 1988, at approximately 5:00 p.m., Mr. Lee met with Valerie McCormick, a City employee who worked for Mr. Arciola. Mr. Lee took notes of this meeting. The meeting was also attended by the personnel director. During Mr. Lee's meeting with Ms. McCormick, she made the following allegations: Valerie said: She's aware of a problem between Mike [Arciola] and Vita [Gunther]. She said it's sexual harassment. She said she found out because both Vita and Mike have spoken to her. Valerie says that Mike told her he tries calling Vita at home and that he loved her. Valerie says Mike has told her that he's a very unhappy man with his home life (he's married) and that there is trouble between he and his wife. Valerie has witnessed Mike being very nasty to Vita since Vita was truthful with him about her feelings. Valerie said she witnessed the same sequence of events with Mary Mann, Mike's former secretary. Valerie said although she has no trouble with Mike, she feels it's because she won't let him and because she is much older. Valerie is willing to sign statement, but she's concerned about what would happen to her if Mike keeps his job after she does this. See Exhibit 7. These allegations were included in a statement which Ms. McCormick signed and swore to on July 18, 1988. Ms. McCormick's allegations corroborated some of the allegations against Mr. Arciola made by Ms. Gunther. Mr. Lee's involvement in the investigation was diminished after July 14, 1988, because of the City Attorney's involvement. The City Attorney actually carried out the investigation. On July 18, 1988, Phyllis Schneps, signed a sworn statement which corroborated Ms. Gunther's allegations concerning Mr. Arciola's rude treatment of female employees, including Ms. Gunther. On July 19, 1988, Mr. Michelson and the Respondent spoke with Ruby Levy, an employee of the City. Ms. Levy made the following statement during this meeting which she signed and swore to: I am the Director of Purchasing of the City of Lauderhill. Vita Gunther told me of the conduct of Michael Arciola towards here at the Lauderhill City Christmas party in 1987. I did not personally witness any of the incidents. After the 1987 Lauderhill Christmas party, Michael Arciola asked me to talk to Vita Gunther to attempt to encourage her to socialize with Arciola outside of their City employment, in effect to "date" Michael Arciola. For five years Michael Arciola has talked to me about his unhappiness with his current marriage. Mary Mann told myself and Valerie McCormick that Michael Arciola wanted to date her. Valerie McCormick told me she witnessed Michael Arciola treating Mary Mann very badly. See Exhibit 10. Ms. Levy's statement corroborated some of the allegations made by Ms. Gunther and Ms. McCormick. On or about July 27, 1988, the following statement, which had been signed under oath, was provided to the City Attorney by Mr. Arciola's attorney: BEFORE ME personally appeared Christopher Cannon, Esquire, who deposes and states: That I am legal counsel for a respected member of the community, whose name shall remain undisclosed. That Vita Gunther was employed by my client prior to her employment with the City of Lauderhill. That my client was charged by Vita Gunther with sexual misconduct and/or sexual harassment on or about February, 1987. That my client's reputation was extremely damaged as a result of Vita Gunther's mis-accusations. Furthermore, my client's family suffered a great deal of anxiety and damage as a result of Vita Gunther's mis-accusations. My client, wishes to remain undisclosed as to not cause further damage to himself or his family. However, my client feels compelled to come forward in an effort to inform the City of Lauderhill of Vita Gunther's background. Exhibit 13. Mr. Arciola's attorney also provided an affidavit from Mary Mann, a/k/a Mary Jones, a former secretary of Mr. Arciola mentioned in the statements of Ms. Gunther and Ms. McCormick, refuting the allegations Ms. Gunther and Ms. McCormick had mad about Mr. Arciola's treatment of Ms. Mann. On July 28, 1988, Ms. Gunther gave a sworn statement to the City Attorney. In this statement, Ms. Gunther was asked about the allegations contained in Mr. Cannon's statement. Ms. Gunther gave a reasonable explanation. Based upon this explanation and the lack of reliability of Mr. Cannon's anonymous hearsay accusations, the City Attorney concluded that little weight should be given to Mr. Cannon's statement. The City Attorney informed the Respondent, who had expressed concern about Mr. Cannon's statement, of his conclusions about Mr. Cannon's statement and the Respondent reasonably relied upon the City Attorney's conclusion about the statement. In the July 28, 1988, statement, Ms. Gunther also confirmed her previous statements and essentially corroborated previous accusations she and others had made against Mr. Arciola. Ms. Gunther also made additional specific allegations about Mr. Arciola's inappropriate behavior. Those allegations are set out in some detail in the Advocate's and Respondent's proposed finding of fact 25. The summary of the allegations contained in proposed finding of fact 25 is a fair and reasonable summary and is hereby incorporated into this finding of fact. It is not necessary to decide whether the allegations are true and no such finding is made. What is relevant to this proceeding is that the allegations were made by Ms. Gunther under oath and the Respondent was made aware of the allegations. At some point after Mr. Arciola was suspended and during the investigation which followed, Mr. Arciola provided the City Attorney an Affidavit Mr. Arciola had executed on July 27, 1988. The Affidavit was provided in lieu of the pre-termination meeting the Respondent had offered. Exhibit 14. In Mr. Arciola's Affidavit, he set out some of the events leading up to the Affidavit, denied the charges against him, addressed some of the specific allegations made by Ms. Gunther, Ms. McCormick, and Ms. Ruby and made accusations against Ms. Gunther's character. Some of the statements made by Mr. Arciola corroborated the sexual harassment charges against him. Most, if not all, of the statements in the Affidavit did little to prove that he did not sexually harass Ms. Gunther. After Ms. Gunther learned of the accusations Mr. Arciola had made about her in his Affidavit and to the press, Ms. Gunther made allegations about possible illegal gambling activities of Mr. Arciola. Consequently, on August 3, 1988, the City Attorney took another sworn statement from Ms. Gunther and on August 19, 1988, the State Attorney's office took another sworn statement from Ms. Gunther. Exhibits 16 and 17. Ms. Gunther's Cold Feet. At some point in the investigation, after all the accusations between Mr. Arciola and Ms. Gunther began to fly, after various City employees began making statements, favorable and negative, to Ms. Gunther and after the investigation began to proceed in a more serious and formal fashion than Ms. Gunther had anticipated, Ms. Gunther told the City Attorney that she was having doubts about whether she wanted to proceed. Ms. Gunther had also been pressured by at least one mutual friend of Mr. Arciola and Ms. Gunther to drop the charges against Mr. Arciola. The City Attorney suggested that Ms. Gunther speak to the Respondent. Therefore, Ms. Gunther and the City Attorney met with the Respondent and Ms. Gunther expressed her concerns. The Respondent informed Ms. Gunther that she could, of course, now indicate that her accusations against Mr. Arciola were incorrect but that the City could not simply drop its investigation. The Respondent explained to Ms. Gunther the potential liability of the City if it did not proceed with the investigation and the potential harm to other female employees if the charges were not fully investigated. The weight of the evidence failed to prove that the Respondent threatened Ms. Gunther in any manner when Ms. Gunther questioned whether the charges against Mr. Arciola could be dropped. The Decision to Fire Mr. Arciola. On August 12, 1988, the Respondent suspended Mr. Arciola's employment with the City. At the time of this action, it was believed that the Respondent's action would require confirmation by the City Council. The Respondent's decision to suspend Mr. Arciola was based upon the events and information described in the foregoing findings of fact, all of which the Respondent was aware of at the time of her decision. The Respondent's decision was made after consultation with Mr. Weiss, the City Attorney, the personnel director and Mr. Lee. None of these individuals advised the Respondent that suspending Mr. Arciola was inappropriate. Mr. Lee in fact recommended that Mr. Arciola be terminated. The weight of the evidence failed to prove that the Respondent's decision on August 12, 1988, to terminate Mr. Arciola's employment with the City or any other action that the Respondent took up to that date was unreasonable. The weight of the evidence also failed to prove that the Respondent's decision on August 12, 1988, to terminate Mr. Arciola's employment with the City or any other action that the Respondent took up to that date was based upon any falsified, fabricated or misrepresented allegations against Mr. Arciola. The City Council's Refusal to Confirm the Decision to Terminate Mr. Arciola. Although there is now some doubt as to whether required, the Respondent's decision to terminate Mr. Arciola was scheduled to be considered for confirmation before the City Council. Prior to the meeting at which the Respondent's decision was to be reviewed, Mr. Weiss telephoned one of the City Councilmen, John Brown. During this telephone call, Mr. Weiss informed Mr. Brown that Ms. Gunther had told him that she had dated Mr. Brown. Mr. Brown accused Mr. Weiss of attempting to blackmail him. Mr. Weiss contended that he was merely warning Mr. Brown so that he would not be surprised at the City Council meeting. The City Attorney later attempted to convince Mr. Brown that Mr. Weiss was not attempting to blackmail him; that Mr. Weiss had merely wanted to warn him. It is doubtful that Mr. Weiss was attempting to blackmail Mr. Brown. Such an attempt would have been incredibly stupid to make, Mr. Weiss would have to somehow control what Ms. Gunther said during the City Council meeting, there was a possible explanation for Ms. Gunther's comments and nothing wrong with any involvement Mr. Brown had had with Ms. Gunther, and there were others who know about the date that Ms. Gunther and Mr. Brown went on (a City picnic). It is not necessary to decide why Mr. Weiss called Mr. Brown. Regardless of whether Mr. Weiss was attempting to blackmail Mr. Brown, the weight of the evidence failed to prove that the Respondent had anything to do with the telephone conversation or the fact that Mr. Weiss spoke with Mr. Brown. On September 1, 1988, the City Council met and considered whether the Respondent's decision to suspend Mr. Arciola should be confirmed. The members of the City Council who participated in the decision of whether to confirm the Respondent's decision to terminate were Howard Berger, John Brown, Ben Dansker, Richard Kaplan and Matt Meadows. Councilmen Berger, Brown (despite his prior personal relation with Ms. Gunther), and Dansker voted against confirming Mr. Arciola's termination. Therefore, Mr. Arciola was reinstated as the Financial Director of the City. The weight of the evidence failed to prove that the City Council failed to confirm the Respondent's decision to terminate because the Respondent had falsely accused Mr. Arciola of sexually harassing Ms. Gunther or because the Respondent had taken any other actions in order to force Mr. Arciola to resign his position as Financial Director for the City. At best, the weight of the evidence proved that the City Council failed to confirm the Respondent's decision to terminate for political reasons (at least one City Councilman, Mr. Brown, intensely disliked the Respondent), because some City Councilmen were biased and had a preconceived position about the allegations against Mr. Arciola or because no evidence was presented to the City Council concerning the allegations against Mr. Arciola. Mr. Arciola was reinstated to his position with the City as a result of the City Council's action on September 1, 1988. Mr. Arciola remained in his position with the City until approximately September, 1989, when he resigned to take another position. Arciola's Attempt to Get Even. On January 24, 1990, Mr. Arciola filed a Complaint against the Respondent with the Commission. In the Complaint, Mr. Arciola accused the Respondent of maliciously and falsely accusing him of sexual harassment against Ms. Gunther and other actions in an attempt to force him to resign as Finance Director of the City. In support of Mr. Arciola's Complaint, he presented an affidavit from Anthony Peccia dated December 21, 1989. Mr. Peccia contended that the Respondent asked him to lie during the City Council meeting of September 1, 1988. Ms. Gunther had made certain allegations about Mr. Peccia's involvement in this matter, i.e., that she told Mr. Peccia that Mr. Arciola was harassing her and that Mr. Gunther asked Mr. Peccia to speak to Mr. Arciola about it. At best, Mr. Peccia's sworn statement indicates that the Respondent and Mr. Weiss believed Ms. Gunther, asked Mr. Peccia to confirm her statements and, when he refused, assumed that he was concerned about being fired. Mr. Arciola also filed an affidavit from John Brown dated December 21, 1989, with the Complaint. Mr. Brown's affidavit contains allegations concerning the telephone call from Mr. Weiss discussed, supra. Finally, Mr. Arciola filed an affidavit from Ms. Gunther which she signed on December 20, 1989, in which Ms. Gunther stated the following: I never accused Michael Arciola of sexual harassment. Mayor Lieberman threatened me that if I was to drop this case, I would be fired. Exhibit 1. Ms. Gunther's statement that she never accused Mr. Arciola of sexual harassment is not totally accurate. Ms. Gunther did, in fact, make such an accusation in her sworn statement of July 28, 1988. Ms. Gunther subsequently explained that what she meant when she said that she had not accused Mr. Arciola of sexual harassment was that when she first went to Mr. Lee she had merely attempted to get Mr. Arciola to quite treating her so mean. Ms. Gunther's statement concerning the Respondent's alleged threat is based upon the events described in findings of fact 60-63. The weight of the evidence failed to prove that any such threat was made by the Respondent. Ms. Gunther's statement is not credible in light of all of the events which led up to Mr. Arciola's termination and the events which have occurred since Ms. Gunther's December 20, 1989, statement. The Respondent was not aware of Mr. Peccia's statement of December 29, 1989, or Ms. Gunther's statement of December 20, 1989, when she took action against Mr. Arciola. These statements fail to prove that any action taken by the Respondent against Mr. Arciola was unreasonable or that she used her position in any manner to harm Mr. Arciola. The Final Word. On July 1, 1991, Ms. Gunther's testimony was taken by deposition. Ms. Gunther's testimony on July 1, 1991, corroborates her previous statements, including her statement to Mr. Lee which she signed on July 18, 1988, and she continued to stand by those statements. Conclusion. The weight of the evidence failed to prove that the Respondent maliciously or falsely accused Mr. Arciola of sexual harassment or took any action against Mr. Arciola which was not reasonable or in any way intended to wrongfully force Mr. Arciola to resign his position with the City. The weight of the evidence failed to prove that the Respondent used her public position to secure a special privilege, benefit or exemption for herself or others, or that she acted with a wrongful intent.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Commission on Ethics enter a Final Order and Public Report finding that the evidence failed to prove that the Respondent, Ilene Lieberman, violated Section 112.313(6), Florida Statutes, as alleged in Complaint No. 90-19. DONE and ENTERED this 2nd day of October, 1991, in Tallahassee, Florida. LARRY J. SARTIN Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of October, 1991. APPENDIX TO RECOMMENDED ORDER The parties have submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted. The Joint Proposed Findings of Fact Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection 1 1-2. 2 3. Hereby accepted. 20 and hereby accepted. To the extent relevant, accepted in 8-9. To the extent relevant, accepted in 12. 7 7, 64 and 78. 8 5. 9 8 and 10. 10 12. 11 14. 12, page 5 Hereby accepted. 12, page 6 14-15. 13 17. 14 15-16. 15 87. 16-17 Hereby accepted. 18 25. 19 27. 20 30-31. 21 32-33. 22 34. The reprimand occurred on July 18, 1988, instead of July 28, 1988. 23 37. 24 54. 25 54-55. 26 87. 27 See 82-83. 28 46. 29 48. 30 44. 31 64. 32 68 and 88. 88 and hereby accepted. 89 and hereby accepted. COPIES FURNISHED: Virlindia Doss Assistant Attorney General Department of Legal Affairs The Capitol, Suite 1601 Tallahassee, Florida 32399-1050 Samuel S. Goren, Esquire 3099 East Commercial Boulevard Suite 200 Fort Lauderdale, Florida 33308 Bonnie J. Williams Executive Director Commission on Ethics The Capitol, Room 2105 Post Office Box 6 Tallahassee, Florida 32302-0006
