Findings Of Fact Respondent, International Paper Realty Corporation, ("IPR" hereafter) is the developer of a proposed residential development located In Panama City. As part of this development, IPR proposed to do some dredge and fill work on its property requiring a permit from the Department of Environmental Regulation ("DER hereafter). On November 5, 1976, IPR submitted an application for approval of a construction, dredge and fill permit to DER. On December 7, 1976 DER requested further information regarding (a) cross-sectional areas and volumes to be dredged; (b) details of Proposed drainage structures; and (c) data regarding the retention of runoff. On January 4, 1977 IPR submitted to DER the information requested by Its letter of December 7, 1976. On January 7, 1977 DER requested further information from IPR pertaining to the overall topography of the area and information pertaining to the dominant vegetation. On January 20th and January 24th, 1977 IPR submitted the information requested by DER on January 7, 1977. On February 9, 1977 DER requested from IPR further information regarding clarification of the computation of 1.6 inches of rainfall volume and a request regarding pollutional loads that could be discharged to the state waters of Robison Bayou or North Bay. On February 17, 1977 and on March 8, 1977 conferences were held by DER with IPR, and representatives from other affected state and local regulatory agencies to review the concern of DER relative to the original permit application. On April 29, 1977 IPR submitted to DER the first modification of its original application of November 1976 which incorporated all of the recommended changes suggested by the regulatory agencies at the conference meetings. Included with this submission were charts, figures and diagrams indicating the proposed work and a hydrological design report dealing with the overall project. On May 16, 1977 IPR met with DER to discuss In detail the permit application as modified on April 29, 1977. On May 18, 1977 DER requested further information from IPR regarding water quality background, a monitoring program, computation of the anticipated dredge material and clarification of slide slopes of the proposed lakes and pond construction. On May 23, 1977 IPR submitted to DER its response to the requested information of May 18, 1977. This response dealt with the anticipated volumes of excavation; anticipated water pollutant load; and the clarification regarding slide slopes of the ponds and lakes. On June 8, 1977 IPR received from DER a request for further information regarding the slide slopes, a recommended monitoring program and specific information regarding background water quality data. On July 5, 1977 IPR responded to DER's request of June 8, 1977 and submitted with that response the water quality data taken from locations in Robison Bayou and North Bay. On August 5 and August 31, 1977 conferences were held by DER with IPR, as well as other involved state and regulatory agencies, and as a result of this meeting it was determined that the permit application should be further modified. On September 14, 1977 IPR submitted to DER a second modification to the original application; and the application as modified, provided for dredging approximately 43,500 cubic yards in an area adjacent to North Hay and Robison Bayou, in order to create an approximately 6 acre residential lake connected via culverts to Robison Bayou and to deepen an existing lake and pond connecting to North Bay. All dredging would be to -3 feet mean sea level. Approximately 40 cubic yards would be dredged in North Bay to increase water circulation into the existing lake. Approximately 1000 cubic yards would be removed to deepen the existing 2 acre pond, with the remaining material removed from the two lakes. Drainage has been designed to maximize detention and thereby discourage direct discharge of stormwater runoff into these lakes. The existing lake will provide both freshwater and saltwater systems by means of a berm across the middle of the lake, with only the North portion open to North Bay via the existing pond. The project area, approximately 90 acres in size, will accommodate proposed construction of up to 534 dwellings, including streets, recreational facilities, and electrical, water and sewer systems. On September 20, 1977 DER requested that IPR publish the required public notice in the local newspaper in that the application was now deemed complete by DER. The application, as modified, was filed herein as Joint Exhibit 1. The testimony concerning the various requests for information from IPR by DER and the response by IPR to DER were submitted by DER's witness Jean Tolman and the exhibits of DER accepted into evidence in this proceeding. Chapter 403, Florida Statutes, and Chapter 17-4, Florida Administrative Code, promulgated thereunder, set forth the procedural requirements and standards applicable to a construction, dredge and fill permit. DER is charged with the responsibility of determining whether the applicant has provided reasonable assurance that the activity to be permitted will not violate the provisions of Chapter 403 or the rules promulgated thereunder. Upon making this determination DER issues the applicant a permit and, if applicable, issues a certification to the Corp. of Engineers pursuant to Public Law 92-500. As outlined above, extensive proceedings were held by DER which ultimately resulted in DER determining that IPR's application met the applicable environmental standards and a permit should issue. (DER's memorandum of January 30, 1978 filed herein and the testimony of Jean Tolman) . However, prior to the actual issuance of the permit, Petitioner, Joe Tannenhill, and petitioners Mark E. Jones and Charles E. Whitehead filed petitions to intervene herein. DER requested that a hearing officer from the Division of Administrative Hearings be assigned to conduct the necessary proceedings involving both petitions and a hearing officer was so assigned pursuant to Chapter 120.57(1), Florida Statutes. Petitioner Joe Tannenhill's petition alleged that the proposed DER action of issuing a permit to IPR would affect his personal property rights. Petitioners Mark E. Jones and Charles E. Whitehead filed petitions which alleged that IPR's application failed to comply with the requirements of Chapter 380 and Chapter 403, Florida Statutes, and certain noted provisions of Chapter 17-4 Florida Administrative Code. During a prehearing conference on February 10, 1978, IPR and DER moved to dismiss Tannenhill from the proceedings. Grounds offered in support of the motion were that his allegation that the permitted activity would affect his personal property rights did not involve an issue over which DER has jurisdiction and therefore if true would not be material to the issue of whether the permit should be issued to IPR by DER. These grounds were accepted and by oral order of February 10, 1978 Tannenhill was dismissed from the proceeding. Also during the same prehearing conference IPR and DER moved to strike all allegations in the petition filed by Mark E. Jones and Charles A. Whitehead pertaining to Chapter 380 of the Florida Statutes. Grounds offered in support of the motion were that the provisions of Chapter 380, Florida Statutes, had no application to and in no way pertained to a construction, dredge and fill permit filed with DER. These grounds were accepted and by oral order entered on February 10, 1978 the provisions of Chapter 380 were deemed immaterial to this proceeding and all allegations pertaining thereto were stricken from the pleading filed. Petitioners Mark E. Jones and Charles A. Whitehead presented their cases jointly at the final hearing. They called the following witnesses: James Walters (T16-36); Charles A. Whitehead (T37-43); Mark E. Jones (43-52); Miss Carol Daugherty (T52-74) Dr. John Taylor (T75-135); and Ed McKay (T135-140). Respondent DER called as its only witness Jean Tolman (T140-281). Respondent IPR did not present any witnesses. Mr. Walters presented a series of slides (Exhibits 1-12) of the subject property, adjacent property and adjoining water bodies. Mr. Whitehead testified that he owns his home adjoining Robison Bayou and that it was in his best interests to keep the quality of the water therein good. He specifically stated, however, that he had no knowledge as to how IPR's proposed project would affect the water quality of Robison Bayou. (P 41) Mr. Jones testified that he owns a home near Robison Bayou and that it was in his best interest to prevent the water therein from getting polluted. He did not testify that IPR's project would affect Robison Bayou but only if it did that it would affect his financial interest in his property. The testimony of Mr. Walters, Mr. Whitehead, and Mr. Jones did not relate in any probative way to the issue in this proceeding. Miss Carol Daugherty was qualified as an expert to make chemical analysis of water. She testified that Dr. Jack Taylor brought some water samples to her and she performed a chemical analysis of same. The results of her test (Exhibit 13) indicated that the water contained a high count of fecal coliform bacteria which indicated to her that improperly treated sewage was in the water. (T 67) She did not testify that IPR was responsible for the bacteria found in the water she analyzed or that the permit which is the subject of this proceeding would authorize an activity which would increase the bacteria in the waters involved. Simply put, Miss Daugherty's testimony proved, if anything, that on the day the samples were taken, improperly treated sewage had been discharged into the waters involved. As to the issue in this proceeding - whether DER has been reasonably assured the the activity to be permitted will not violate water quality standards - the testimony of Miss Daugherty has no probative value. Dr. Taylor was qualified as an expert in marine ecology. He testified that he obtained water samples at high and low tides from five locations In Robison Bayou on February 16. (P 84-85) To determine its water quality for that day he delivered the samples to Miss Daugherty (P 88). As a result of the testing done by Miss Daugherty, Dr. Taylor testified that he was concerned with the level of total nitrogen and phosphorus in the samples but admitted that DER has no prescribed limit for either. (T 89) He further stated that he was concerned with the fecal strep levels found in the samples tested by Miss Daugherty but admitted "there is no standard as yet established for fecal strep" (T 98). Based solely on samples taken on one day, Dr. Taylor testified that he believes that Robison Bayou is overautrified and contaminated with harmful bacteria. (P 99) It was his opinion that this condition of Robison Bayou was caused by improperly treated sewage being discharged therein from a trailer park and drainage from a hospital and an industrial park nearby. (T 114-115) He did not testify that IPR was in any way responsible for the condition of Robison Bayou as he found it on February 16, 1978. Although Dr. Taylor expressed concern respecting the runoff from IPR's proposed development, he admitted that any analysis of drainage from the development "would be a matter of conjecture." (T 101) He further admitted that IPR's method for treating stormwater runoff "probably addressed it in as good a way as you can." (P117) His only exception to this admission was that he would have planned the project to have all runoff going into North Bay rather than Robison Bayou. It is obvious from this statement that Dr. Taylor is not concerned with the quality of the waters that might runoff the proposed project into waters of the state but is really only concerned with the existing quality of the body of water to receive the runoff, Robison Bayou. The testimony of Dr. Taylor might have some value in an enforcement proceeding involving parties who are in fact degrading Robison Bayou. Here, however, the issue is whether DER has been provided reasonable assurance that the activity to be permitted will not violate water quality standards. As to this Issue, Dr. Taylor's testimony has no probative value. DER is charged with the responsibility of evaluating the impact of a proposed construction, dredge and fill permit on waters of the State. Section 403.021(2), Florida Statutes. The major considerations in this evaluation are whether the quality of water will be degraded by (1) the destruction of resources which maintain water quality, and (2) the discharging of harmful materials into the environment. No testimony was offered by Petitioners that the activity of IPR proposed to be permitted by DER would destroy resources which maintain water quality or that the runoff from the project will discharge harmful materials into the waters of the State. Petitioners appeared to support its position in this proceeding solely on the basis of the water quality of Robison Bayou. However, the standards to be applied to IPR's permit do not concern themselves with the water quality of Robison Bayou but apply only to the quality of the water to be discharged to Robison Bayou. The testimony of DER's witness, Jean Tolman, was uncontradicted that IPR's application, as modified, affirmatively provided reasonable assurance to DER that the short-term and long-term effects of the permitted activity will not violate water quality standards of the State. Ms. Tolman is presently head of DER's program on water resource restoration and preservation. Prior to that, however, she was head of the standard permitting section involving dredge and fill permitting for DER and testified that she personally reviewed the application in question in that capacity. Ms. Tolman was accepted as an expert qualified to answer the questions and express the opinions which were propounded to her and expressed by her. She testified in great detail concerning the original application on November 5, 1976; the many requests by DER for additional information and the submission of same by IPR; the many meetings with the applicant, DER and other affected state and federal agencies; and the modifications to the original application submitted on April 29, 1977, and September 14, 1977. Her uncontradicted testimony was that the application, subsequent submittals and subsequent modifications were adequate and complete to form the basis for a determination by DER. Based on all of this information, and the expertise of DER, Ms. Tolman testified that the application as revised would in fact meet the water quality standards pertaining thereto. She did state that DER would require as a condition to issuance of the permit that IPR submit a detailed drainage plan prior to actual construction.
Conclusions IPR's application for a construction, dredge and fill permit originally submitted to DER on November 5, 1976, and subsequently modified on April 29, 1977, and September 4, 1977, was an adequate and complete application sufficient to form the basis for a determination by DER on whether or not the permit should issue. Testimony presented at the hearing by the witnesses for Petitioners related primarily to the water quality of Robison Bayou on February 16, 1978. Admittedly on the day in question the level of fecal coliform bacteria found in the waters of Robison Bayou exceeded that established by DFR for Class II waters. However, no testimony presented at the hearing indicated that Respondent IPR was responsible for this fact nor did any testimony presented at this hearing Indicate that the activity to be permitted will increase the focal coliform bacteria level in Robison Bayou. There was no testimony presented at the hearing to indicate that the dredge and fill activity proposed would in fact violate the water quality standards established by Chapter 403, Florida Statutes, or the rules promulgated by DER thereunder. Although is is clear that there will be some stormwater runoff from IPR's proposed residential development once constructed, there was no testimony offered to indicate that this stormwater runoff would violate the water quality standards of Chapter 403 or the rules promulgated by DER thereunder. There was testimony offered by Ms. Tolman that it was her personal opinion and the determination by DER that in fact the stormwater runoff would not violate the water quality standards.
The Issue Whether Petitioners are entitled to recover costs and attorney's fees against Respondent and, if so, in what amount.
Findings Of Fact At all times relevant to this proceeding, Petitioner, Marsha Strange, was the Mayor of McIntosh, Florida, having served in that position for approximately ten years. The Town of McIntosh (Town or Town of McIntosh) has a population of approximately 400 and has only three paid employees on its staff. The Town of McIntosh has a weak mayoral form of government. Under this system of government, the mayor does not have the power to appoint, promote, or dismiss Town employees or to appoint members to the Town's various committees or boards. Rather, these decisions are made by the elected five-member Town Council. The mayor is not a member of the Town Council and has no power to vote on issues coming before that governing body. Moreover, the mayor of the Town of McIntosh is not paid. On March 5, 1998, Respondent, Mary Lueders Burnett (Respondent), filed a verified ethics complaint against Mayor Marsha Strange, alleging Mayor Strange had violated Section 112.3135, Florida Statutes, regarding the appointment of relatives. In the complaint, Respondent stated that the mayor's brother-in-law, Thurman Kingsley, was appointed as the only person authorized to sign building permits. The complaint stated: I believe that this appointment to a position involving the approval of the Mayor by virtue of her management responsibilities mandated in the Town Charter, constitutes a violation of Section 112.3135, Florida Statutes, regarding the appointing of relatives. While our municipality is less than 35,000, our population is 413. I believe the function involves land planning or zoning as stated in the statute. Within a month of filing the initial complaint against Mayor Strange, Respondent separately filed three additional verified complaints against Mayor Strange. On March 20, 1998, Respondent filed a second complaint against Mayor Strange which alleged that the Town of McIntosh failed to comply with its Comprehensive Plan. Specifically, Respondent claimed that the official zoning map, Public Works Manual, and Land Development Regulations, documents required by the Town's Comprehensive Plan, did not exist. Respondent asserted that this alleged act "constitutes malfeasance and is a gross misuse of public position in violation of Florida Statutes." Notwithstanding Respondent's allegation that the Town had no land development regulations, in a letter dated March 13, 1998, signed by Respondent and attached to this ethics complaint, Respondent cites extensively from the Town's Land Development Code. On April 3, 1998, Respondent filed a third complaint against Mayor Strange alleging that the mayor had (1) improperly determined that the terms of members of the Town's Code Enforcement Board had expired; (2) failed to post notice of vacancies on that board; and (3) failed to adopt rules for the recruitment and appointment of board members. In this complaint, Respondent contended that the alleged acts were a breach of public trust in violation of Sections 112.311(6) and 286.011, Florida Statutes. On April 5, 1998, Respondent filed a fourth ethics complaint against Mayor Strange alleging that on certain property in the Town, land development by a former Town official was taking place without proper permits. In this ethics complaint, Respondent indicated that on March 4, 1998, she had filed a Notice of Complaint with the Town regarding this issue but that the Town's Code Enforcement Officer had determined that the complaint was unfounded. In the ethics complaint, Respondent stated that: It is my belief that the code enforcement officer as well as the mayor and the members of the McIntosh Town Council, under whose pleasure the code enforcement officer is appointed, have violated Section 112.313(6), Florida Statutes, for allowing this unpermitted land development by a former town official. Respondent's second, third, and fourth ethics complaints against Mayor Strange were found to be without merit and dismissed by the Ethics Commission without the necessity of an investigation. The Ethics Commission authorized an investigation of the allegations contained in Respondent's initial complaint, Complaint No. 98-37, alleging a nepotism violation against Mayor Strange. Larry Hill, a senior investigator, investigated the allegations in Respondent's Complaint No. 98-37 on behalf of the Ethics Commission. As a part of his investigation, Mr. Hill interviewed Respondent and Mayor Strange. Following the investigation, Mr. Hill incorporated his factual findings in a Report of Investigation dated June 19, 1998. After considering the Report of Investigation and the Advocate’s recommendation, the Ethics Commission determined that there was no evidence that Mayor Strange advocated, recommended, or otherwise played any role in having Mr. Kingsley appointed to the municipal position. Thereafter, the Ethics Commission issued an Order finding that there was no probable cause to believe that Mayor Strange violated Section 112.3135, Florida Statutes, regarding her brother-in-law's appointment to a Town position as alleged in Respondent's complaint. According to the Report of Investigation, Thurman Kingsley was Mayor Strange’s brother-in-law. However, Respondent admitted she had no evidence that Mayor Strange had advocated or was in any way involved in Mr. Kingsley's appointment to his municipal position as a building official. Furthermore, according to the report, Respondent acknowledged that she knew that Mayor Strange did not have a vote on any official Town matters. During Mr. Hill's interview with her, Mayor Strange indicated that she had taken no action to appoint or promote Thurman Kingsley as the building official for the Town of McIntosh. Also, at hearing, Mayor Strange provided credible testimony that she did not take part in the Town's hiring of Thurman Kingsley and did not have the power to do so. Thurman Kingsley was appointed as building permit official for the Town of McIntosh approximately four years prior to Respondent's filing the complaint of a violation of the nepotism law by Mayor Strange. The minutes of the Town Council meeting at which Mr. Kingsley was approved as a building permit official reflect that Mayor Strange played no role in his appointment to the building committee. At the time Respondent filed the verified complaint against Mayor Strange, she was aware that the mayor had no power to appoint any town official. Moreover, Respondent had no first-hand knowledge of the alleged violations nor had the factual allegations been provided to her by reliable sources. Although Respondent had no knowledge or reliable information to support the allegations, she filed a verified complaint against Mayor Strange. In light of the foregoing, the statements and allegations contained in the Respondent's complaint against Mayor Strange were filed with knowledge that they were false or with reckless disregard for whether the complaint contained false allegations of fact material to a violation of the Code of Ethics. On October 9, 1997, Petitioner, Maxine Holst, was appointed on a temporary basis as Town Clerk for the Town of McIntosh. Six months later, on April 9, 1998, Ms. Holst was appointed to the position as permanent Town Clerk. In both instances, Ms. Holst was appointed by the Town Council and served at the pleasure of and answered to that body. On March 3, 1998, Respondent filed a complaint with the Ethics Commission against Maxine Holst. The complaint alleged that "the issuing clerk" misused her public office by issuing a building permit to the relative of a Town Council member. The complaint further alleged that the permit was issued contrary to applicable issuance criteria and in spite of the fact that the permit had been denied by the former Town Clerk because the necessary requirements had not been met. In Respondent's complaint against Ms. Holst, Respondent, wrote: The issuing clerk was aware of the previous denial of permit. I believe this act represents a direct violation of the Florida Statutes, Section 112.313(6) as misuse of public position. The building permit referred to in Respondent's complaint was for construction of a carport on property owned by Wilshire Walkup, a family member of Howard Walkup. According to Respondent's complaint, when the subject permit was issued, Howard Walkup was a member of the Town Council. On March 9, 1998, Respondent filed a second ethics complaint against Ms. Holst, alleging that she (1) failed to file applicable financial disclosure after being appointed to her public position; and (2) refused to return the former Town Clerk's notary seal left through oversight at the clerk's office. In regard to the first allegation, Respondent stated: A Town Clerk was appointed in October 1997. This was on a temporary basis but later became a permanent appointment. As of this date, according to the [O]ffice of the Marion County Supervisor of Elections, the town clerk has not filed Form 1, Limited Financial Disclosure. This is a violation of the Sunshine Amendment. In regard to the allegation concerning the notary seal, Respondent stated in her complaint: A Town Clerk was appointed in October of 1997. The former Town Clerk, by oversight, left her notary seal at the office. The newly appointed town clerk, M. Maxine Holst, refused, upon the former clerk's three requests to give the notary seal to it's [sic] owner." The letter acknowledged that the notary seal was returned to the former Town Clerk but noted that the act of refusing to return the notary stamp constituted a misdemeanor according to Section 117.05(9), Florida Statutes. Finally, Respondent's letter stated that the alleged act "constituted misuse of public position in violation of Section 112.313(6) of Florida Statutes." On April 3, 1998, Respondent filed a third ethics complaint against Ms. Holst. The allegations in this complaint were identical to those made in the ethics complaint filed by Respondent against Mayor Strange on the same date and described above in paragraph 7. In fact, a copy of the same letter was attached to the complaints filed on April 3, 1999, against Mayor Strange and Ms. Holst. In the third complaint filed against Ms. Holst, Respondent alleged that the terms of members of the Code Enforcement Board had been determined without documentation and concluded that the new members appointed to the Board were chosen without public notice and search. In this complaint, Respondent alleged that: The Town Clerk, Maxine Holst, Mayor Marsha Strange, and Council Members Stott, Smith, McCollum and Walkup determined without documentation that the [Code Enforcement Board] Chairman's and another member's terms had expired. Although the Chairman and the other members wished to be considered for reappointment, the Town Council recruited, without posting a notice that interested residents might apply for the position, and appointed their replacements. I believe that the bogus expirations and the reappointments of hand-picked replacements without notice to board members or the public posting of the vacancies represents a breach of public trust in violation of Florida Statute 112.313(6). The Ethics Commission authorized a preliminary investigation of the complaints filed by Respondent against Maxine Holst. The investigation was conducted by Larry D. Hill, a senior investigator with the Ethics Commission. The results of Mr. Hill’s findings were recorded in a Report of Investigation dated June 19, 1998. Based on the Report of Investigation and the Advocate’s recommendation, the Ethics Commission issued an Order finding that there was no probable cause to believe that Maxine Holst was guilty of the violations alleged in the three complaints filed by Respondent. The initial ethics complaint filed by Respondent against Ms. Holst alleged that Ms. Holst (1) improperly issued a building permit although the application had been previously denied; (2) was aware, when she issued the permit, that the permit had been denied; and (3) issued the permit only because the applicant was related to a member of the Town Council. These allegations were not true. Moreover, at the time the complaint was filed, there was no basis in fact for the allegations made by Respondent. When Margaret Walkup, wife of Wilshire Walkup, first submitted the permit application, it was accepted by the Town Clerk, Barbara Bessent. At the direction of June Glass, the chairperson of the Town's Historic Preservation Board, Ms. Bessent told Mrs. Walkup that the application must also include a site plan. Mrs. Walkup drew a diagram of a carport that was to be constructed and re-submitted the application. Ms. Bessent accepted the application. When a permit application involved a request for construction in the Town’s historic district, the Town's Historic Preservation Board would typically be required to review and approve the application. In this case, Ms. Glass believed that Mrs. Walkup’s application was incomplete in that the diagram drawn on the application did not, in Ms. Glass' opinion, constitute a site plan. In light of her belief, Ms. Glass told Ms. Bessent to send a letter to Mrs. Walkup notifying her that the application was incomplete and/or that it was denied. The letter was never written and no official action was taken on the application. Ms. Holst’s immediate predecessor, Ms. Bessent, never approved or denied the permit application nor did she create a file or in any way document the status of the application. Rather, she put the application in the correspondence file. This failure to document would make it impossible for anyone to know or determine what action, if any, had been taken on the application. On or about October 13, 1999, Margaret Walkup went to the Town Clerk's office and inquired about the status of the previously-filed building permit application. When the inquiry was made, Ms. Holst had been in the position of Town Clerk less than a week, was unfamiliar with the permitting process, and had no knowledge of the permit application in question. Therefore, prior to responding to Mrs. Walkup’s inquiry, Ms. Holst sought the advice of Town Council member Eunice Smith, who was in the office training Ms. Holst. Ms. Smith was an appropriate person to train Ms. Holst for her new position because, several years ago and prior to being elected to the Town Council, Ms. Smith had worked as the Town Clerk. After Ms. Holst and/or Town Councilwoman Smith located the application, Councilwoman Smith advised Ms. Holst that the Town's Land Development Regulations required issuance of the permit because the permit had been pending for more than 45 days. Based on Town Councilwoman Smith's advice and directive, Ms. Holst issued the permit, which allowed the construction of an aluminum carport on the property owned by Wilshire Walkup. Respondent's statements in the March 3, 1999, complaint against Ms. Holst, that the subject permit application was initially denied and that Ms. Holst was "aware" of the denial, were false and had no basis in fact. Finally, Respondent alleged that Ms. Holst issued the permit to Wilshire Walkup because he was related to Howard Walkup, a member of the McIntosh Town Council. This allegation was false and was easily discernable as such. Although Howard Walkup was a member of the McIntosh Town Council when Respondent filed her complaint against Ms. Holst, he was not a member of the Town Council in October 1997 when the permit was issued by Ms. Holst as alleged by Respondent. Respondent offered no explanation of the basis of her belief that at the time she filed the complaint, these statements were true. Thus, the allegations contained in Respondent's first complaint against Ms. Holst were filed with knowledge that they were false or with reckless disregard for whether the complaint contained false allegations of fact material to a violation of the Code of Ethics. As noted in paragraphs 21 and 22, Respondent's second complaint alleged that Ms. Holst failed to file a financial disclosure and also refused to return the notary seal to its owner and the former Town Clerk, Barbara Bessent. The allegation concerning Ms. Holst's failing to file a financial disclosure form is true. As of March 9, 1998, Ms. Holst had not filed the required financial disclosure form. In fact, it was only after Respondent filed this complaint that Ms. Holst first learned that the filing was required. However, upon learning of the requirement, Ms. Holst immediately filed the required financial disclosure form. Respondent stated that the former Town Clerk, Ms. Bessent, left her notary seal in the Town Clerk's Office through "oversight" and, thereafter, requested on three occasions that Ms. Holst give her the seal. There is no indication that Respondent had first-hand knowledge of the facts surrounding the return of Ms. Bessent's notary seal nor was there any evidence that Respondent's allegations were based on information obtained from reliable sources. Moreover, these statements made by Respondent in the March 9, 1998, complaint against Ms. Holst are contradicted by the credible testimony of Ms. Bessent, the person most knowledgeable about the situation involving her notary seal. Respondent's statement that Ms. Bessent left her notary seal in the Town Clerk's office through an oversight is not true. On Ms. Bessent's last day as Town Clerk, she voluntarily and intentionally left her notary seal in the Town Clerk's office after being asked to do so by Town Council member McCullum. Councilman McCullum explained to Ms. Bessent that he wanted to "clear" her and indicated that it would "be safer" for her to leave the notary seal at the office. Ms. Bessent complied with Councilman McCullum's request and never expressed an unwillingness to temporarily leave the notary seal in the Town Clerk's office. The second allegation included in the second ethics complaint, that Ms. Holst refused to return a notary stamp to the former Town Clerk, is false. The former Town Clerk, Barbara Bessent, provided credible testimony that Ms. Holst never refused to return the notary seal on the one occasion that Ms. Bessent asked Ms. Holst for the notary seal. When Ms. Bessent made this request, Ms. Holst, who had been Town Clerk only a few days, told her that if the Town paid for the seal that it belonged to the Town and that she would have to check with the Town Council. Ms. Bessent was familiar with how the Town Council worked and knew and understood that Council members wanted to be consulted on most matters. Ms. Bessent did not believe that Ms. Holst was refusing to give her the seal and did not believe Ms. Holst intended to use the seal. In fact, Ms. Bessent had reason to believe that Ms. Holst was a notary. Several weeks after Ms. Bessent requested that Ms. Holst give her the notary seal, a Town Council member authorized Ms. Holst to give Ms. Bessent her notary seal. Upon receiving this authorization, Ms. Holst gave Ms. Bessent the notary seal. Prior to Ms. Holst's returning the notary seal to Ms. Bessent, and soon after Ms. Bessent resigned as Town Clerk, the Town maintenance man came to the Town Clerk's Office to retrieve Ms. Bessent's personal items that she had left in the office. A few weeks later, Ms. Glass wanted to have Ms. Bessent notarize something for her. After Ms. Bessent told Ms. Glass that her notary seal was in the Clerk's Office, Ms. Glass volunteered to go to the Clerk's Office and retrieve the seal. Ms. Glass went to the office and asked for Ms. Bessent's notary seal. Ms. Holst did not give Ms. Bessent's notary seal to either the maintenance man or to Ms. Glass because she believed that it was improper to give Ms. Bessent's notary seal to a third party. At the time Respondent made the statements regarding the notary seal in the March 9, 1998, complaint against Ms. Holst, she either knew they were false or made them with reckless disregard for whether the complaint contained false allegations of fact material to a violation of the Code of Ethics. The allegation in Respondent's third ethics complaint against Ms. Holst was that she, the mayor, and Town Council members had improperly determined that the terms of the Town's Code Enforcement Board had expired. This allegation is false and has no basis in fact. When Respondent made the statements and allegations in the complaint, filed on April 3, 1998, she either knew they were false or made them with reckless disregard for whether the complaint contained false allegations of fact material to a violation of the Code of Ethics. On January 8, 1998, Petitioner Richard McGath, a retired Sarasota building inspection official and resident of the Town of McIntosh, was appointed as the Town's code enforcement officer. This is a voluntary position, and one for which Mr. McGath receives no compensation. Mr. McGath spends about two hours a week performing duties associated with his position as the Town's code enforcement officer. On March 3, 1998, less than two months after Mr. McGath agreed to accept the Town's position of code enforcement officer, Respondent filed a verified ethics complaint against him. In the complaint, Respondent alleged that Mr. McGath failed to act on a matter and that such failure was a misuse of his position. The alleged act giving rise to Respondent's complaint against Mr. McGath was that the Town Clerk had improperly issued a building permit to Town resident Wilshire Walkup for construction of a carport, although it failed to meet the requirements of the Town's Historic Preservation Board. Respondent felt that the permit was issued only because Wilshire Walkup was related to Town Council member Howard Walkup. On or about December 10, 1997, two months after the subject permit was issued, Respondent filed a Notice of Complaint with the Town Clerk, alleging that Mr. McGath refused to take action when he determined that Wilshire Walkup had constructed an aluminum carport. The position of code enforcement officer was vacant at or near the time Respondent's December 1997 Notice of Complaint was filed. Therefore, no immediate action was taken on the Respondent's complaint. However, soon after Mr. McGath's appointment as code enforcement officer, he investigated Respondent's complaint regarding the permit issued to Wilshire Walkup. During the course of his investigation, Mr. McGath determined that the building permit had been issued to Wilshire Walkup on October 13, 1997. Mr. McGath then went to Wilshire Walkup's property and observed that an aluminum carport had been constructed. Mr. McGath believed that the structure was in violation of Town ordinances. However, Mr. McGath issued a one-time waiver for the structure because the Town Clerk had issued the building permit on October 13, 1997, and by the time he assumed the position of code enforcement officer, the structure already had been constructed. Based on Respondent's December 1997 Notice of Complaint, the structure had likely been constructed as early as December 10, 1997. Mr. McGath explained to Mr. Walkup that any further modifications on the structure would have to comply fully with all applicable code requirements. These comments were noted on the response portion of Respondent's Notice of Complaint. Mr. McGath took the action he did with respect to Wilshire Walkup's carport because, prior to his investigation, the building permit had been issued and the carport had already been constructed. Both of these events occurred before Mr. McGath was appointed as the Town's code enforcement officer. Based on his experience and given the facts related to the Wilshire Walkup project, Mr. McGath believed that the course of action he chose was a prudent one. Respondent also alleged that Mr. McGath took no action against Wilshire Walkup because he was related to Howard Walkup, a member of the Town council. First, as stated in paragraph 33, Howard Walkup was not a member of the Town Council at the time the permit was issued. Second, after Howard Walkup was elected to the Town Council in November 1997, he never attempted to influence or even discuss the matter with Mr. McGath during his investigation of the matter. Finally, prior to his investigating Respondent's December 1997 Notice of Complaint, Mr. McGath had never met Wilshire Walkup and did not know that he was related to Town Councilman Howard Walkup. The action taken by Mr. McGath relative to Respondent's complaint regarding Wilshire Walkup's aluminum carport was not a misuse of his position as alleged by Respondent. Respondent had no evidence to base her claim that Richard McGath misused his public office for private gain. Yet, she filed a verified complaint with the Commission alleging that he had done so. Respondent offered no reasonable explanation or basis for her believing that when the statements in her ethics complaint were made, that they were true. In light of the foregoing, the statements and allegations contained in Respondent's complaint, filed on March 3, 1998, against Mr. McGath were filed with knowledge that they were false or with reckless disregard for whether the complaint contained false allegations of fact material to a violation of the Code of Ethics. On April 14, 1998, Respondent filed a second ethics complaint against Mr. McGath. In that complaint, Respondent alleged that Mr. McGath had violated Section 112.313(6), Florida Statutes, by allowing unpermitted land development by a former Town official. In the complaint, Respondent noted that she had previously filed a Notice of Complaint with the Town regarding the alleged unpermitted land development and that the code enforcement officer, Mr. McGath, had determined that the complaint was unfounded. Respondent's Notice of Complaint regarding the alleged unpermitted land development was filed with the Town on March 4, 1998. Mr. McGath investigated the matter and determined that on the property in question, a culvert was being put in to replace another culvert that had been crushed. Based on his investigation, Mr. McGath did not find that there was unpermitted land development and thus concluded that Respondent's complaint was unfounded. This finding was made on March 12, 1998. Respondent learned of Mr. McGath's finding on April 1, 1998, but never questioned him regarding the reason for his finding. On April 14, 1998, without making any inquiry into the basis of Mr. McGath's finding, Respondent filed an ethics complaint alleging that Mr. McGath misused his public position by allowing alleged unpermitted land development. Respondent had no factual basis upon which to base the statements and allegations contained in the ethics complaint against Mr. McGath. In light of the foregoing, the statements and allegations contained in Respondent's complaint filed on April 14, 1998, against Mr. McGath were filed with knowledge that they were false or with reckless disregard for whether the complaint contained false allegations of fact material to a violation of the Code of Ethics. The Ethics Commission authorized a preliminary investigation of the complaints filed by Respondent against Mr. McGath. The investigation was conducted by Larry Hill, a senior investigator with the Ethics Commission. Thereafter, the Ethics Commission issued an Order finding no probable cause to believe that Mr. McGath was guilty of the violations alleged in the two complaints filed by Respondent. Respondent frequently attends the Town Council meetings and is knowledgeable of the workings of the Town of McIntosh. Moreover, Respondent knows how to obtain public documents through public records requests and has made such requests on a regular basis. The record reveals that for many years Respondent attended many Town Council meetings, made numerous public record requests to the Town of McIntosh, and wrote numerous letters to the Town Council, various governmental agencies, and officials. In many of those letters, Respondent complained of alleged violations by Town officials, cited statutes, codes, and ordinances, and quoted liberally from Town ordinances, Town council minutes, and other documents. Many of the letters prepared by Respondent reflect that she had extensively researched selective issues contained therein. In fact, Respondent indicated in one letter that based on her research, she had determined that certain conduct constituted a misdemeanor offense. However, in the instant case, Respondent not only failed to research the facts alleged in the complaints, but apparently never made even a cursory review of the Town records prior to leveling her complaints against Petitioners. Where allegations are made under oath, as in this case, it is appropriate for a complainant to at least make a cursory review of the facts before filing a complaint alleging officials have violated Florida Statutes. In the instant case, between March 3, 1998, and April 5, 1998, Respondent filed a total of nine verified ethics complaints against Petitioners. Three of the complaints were dismissed by the Ethics Commission without an investigation. In the remaining six complaints which are the subject of this proceeding, Respondent made numerous unsubstantiated allegations and statements of fact to which she had no personal knowledge. Respondent also failed to check the accuracy and veracity of statements before she filed these complaints. Based on the foregoing, it is clear that Respondent filed the ethics complaints against Petitioners with a malicious intent to injure the reputations of Petitioners because they were filed with the knowledge that the complaints contained one or more false allegations, or with reckless disregard for whether the complaints contained false allegations of fact material to a violation of the Code of Ethics. In defending themselves against the allegations in the subject complaints and in this proceeding, Petitioners have been represented by S. Scott Walker, Esquire, and Gary Printy, Esquire. The normal hourly rate for S. Scott Walker and Gary Printy, counsel for Petitioners, is $175.00 per hour. This is a reasonable hourly rate. However, in this case, the hourly rate assessed to Petitioners was $75.00. The hourly rate of $75.00 is also reasonable. S. Scott Walker expended 47.70 hours on this matter, including time spent in this proceeding. Mr. Printy expended four hours on this matter. The total attorney time expended on this matter, 51.70 hours, is reasonable. The attorney's fee of $4,109.47 incurred by Petitioners as a result of Mr. Walker's representation is reasonable. Also, the attorney's fee of $400.00 incurred by Petitioners as a result of Mr. Printy's representation is reasonable. Reasonable costs of $231.98 were incurred in connection with defense of the ethics complaints against Petitioners and in this proceeding.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby: RECOMMENDED that a final order be entered finding that Respondent, Mary Lueders Burnett, is liable for attorney's fees of $4,509.47 and costs of $231.98. RECOMMENDED this 15th day of September, 1999, in Tallahassee, Leon County, Florida. CAROLYN S. HOLIFIELD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 15th day of September, 1999. COPIES FURNISHED: S. Scott Walker, Esquire Post Office Box 1070 Gainesville, Florida 32602-1070 Mary Lueders Burnett Post Office Box 381 McIntosh, Florida 32664-0381 Sharon Moultry, Clerk Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Dana Baird, General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149
The Issue The issue is whether Respondent should be required to pay attorney's fees and costs to Petitioner to compensate her for the defense of an ethics complaint Respondent filed against her with the Florida Commission on Ethics.
Findings Of Fact Respondent J. Curtis Boyd ("Respondent" or "Mr. Boyd") owns property located at 111 Boston Avenue, Fort Pierce, Florida, that he bought in 2002 or 2003. The house on the property was once owned by the late Florida Governor Dan McCarty. Mr. Boyd testified that he has been offered $650,000 to sell the property with the house on it and $1.2 million to sell the land without the house. Mr. Boyd requested and received permission to demolish the house by a 5-to-1 vote of the Historic Preservation Board. That decision was apparently revoked by vote of the City Commission, including that of Petitioner Christine Coke ("Petitioner" or "Ms. Coke"). A complaint filed by Mr. Boyd with the State Attorney accusing Ms. Coke of "misuse of authority" was dismissed on July 6, 2009. Complaint No. 09-087, filed with the Florida Commission on Ethics ("Ethics Commission") on June 25, 2009, was dismissed on July 29, 2009. Mr. Boyd testified that, after the vote of the Historic Preservation Board, he believed Ms. Coke found some unnamed person to appeal the decision to the City Commission. He also testified that, some time later, he found out that the house was not in the historic district and that he did not need permission to demolish it. Mr. Boyd testified that he had overdue property taxes, but that he paid the back taxes and had the assessed value of the property reduced to lower his taxes because of the poor condition of the house. The City of Fort Pierce has waived approximately $70,000 in code enforcement fines on the property, and offered to pay $5,000 for a design fee, but Mr. Boyd noted that the design fee will not go to him but to an architect. Mr. Boyd alleges, with no supporting evidence, that the actions taken by Ms. Coke and others are intended to force him to sell the property to a friend of hers. Based on Mr. Boyd's testimony it is impossible to conclude, as he alleged, that Ms. Coke persuaded some one to appeal the decision of the Historic Preservation Board to the City Commission. There is also no evidence to support or refute Mr. Boyd's allegation that Ms. Coke was motivated by trying to force him to sell his property to a friend of hers. Related to costs and fees, Petitioner's counsel proffered an affidavit of an attorney, filed with the Division of Administrative Hearings on September 23, 2009, representing that the attorney had reviewed the files of Petitioner's counsel and agreed that fees of $1,447.50 for one billing period and of $1,765.00 for another billing period were reasonable. In the absence of supporting testimony and after Petitioner rested her case, the objection to the admission of the affidavit as being untimely filed and unsupported hearsay was sustained. There is no competent substantial evidence that Respondent either made or did not make a complaint against Petitioner with knowledge that the allegations were false or with reckless disregard for whether the complaint contained false allegations. There is also no competent substantial evidence of the amount of fees and costs incurred by Petitioner.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is Recommended that the Florida Commission on Ethics dismiss the Petition for Attorney's Fees and Costs filed by Christine Coke. DONE AND ENTERED this 22nd day of October, 2009, in Tallahassee, Leon County, Florida. S ELEANOR M. HUNTER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 22nd day of October, 2009. COPIES FURNISHED: Kaye Starling, Agency Clerk Florida Commission on Ethics Post Office Drawer 15709 Tallahassee, Florida 32317-5709 Richard E. Coates, Esquire 200 West College Avenue, Suite 311B Tallahassee, Florida 32301 Patrick Farrell, Esquire c/o J. Curtis Boyd 120 Orange Avenue Fort Pierce, Florida 34950 Philip C. Claypool, Esquire Executive Director and General Counsel Florida Commission on Ethics 3600 Macclay Boulevard, South Post Office Drawer 15709 Tallahassee, Florida 32317-5709 James Peterson, Esquire Linzie Bogan, Esquire Advocates for the Commission Office of the Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050
The Issue The issue for determination at formal hearing was whether Respondent committed the offenses set forth in the administrative complaint, and if so, what disciplinary action should be taken.
Findings Of Fact Tomas Ratner (Respondent), is and has been at all times material hereto, a certified law enforcement officer. He was certified by the Criminal Justice Standards and Training Commission (Petitioner) on June 5, 1981, having been issued certificate number 116766. Respondent has approximately 30 years of experience in law enforcement, having been employed with several different governmental agencies. From 1985 to 1991, Respondent was employed with the City of South Miami Police Department (South Miami P.D.). On or about February 3, 1990, Respondent was involved in an off-duty automobile accident in which he injured his neck and back. As a result of the injury, Respondent did not report to work for approximately one month, using sick and compensatory leave and, when his leave was exhausted, using leave without pay. In or around March 1990, Respondent returned to work on light-duty. On or about March 2, 1990, Respondent aggravated his existing injury while on light-duty. On or about March 7, 1990, a notice of injury for the Division of Workers' Compensation, Department of Labor and Employment Security was completed by Respondent for the aggravating injury. Due to the aggravated injury, Respondent's physician, a neurologist, recommended, and South Miami P.D. agreed, that Respondent not return to work, indefinitely. His physician's diagnosis was that Respondent had bulging, and possibly herniated intervertebral discs and his prognosis was that Respondent would eventually be able to return to work but that his recuperation and healing progress required him to remain out of work. Respondent was placed on disability leave by the South Miami P.D. and received workers' compensation benefits. Approximately six months later, in or around the first of September, Respondent's physician indicated that he could return to full-time duty and take over-the-counter medication for pain. On or about September 13, 1990, Respondent returned to work. During this six-month period, Respondent's physician provided the South Miami P.D. with periodic updates on his condition. Respondent was not aware of these updates. Even though Respondent was not allowed to return to work, on at least two occasions, during the six-month period, his physician approved for him to attend a police memorial ceremony and a two-day conference. Both of the events were held out-of-town. At no time during the six-month period was Respondent hospitalized. He received rehabilitative treatment, prescribed medication and rest. Also, at no time did he receive a disability rating. After Respondent returned to work, South Miami P.D. forwarded a supplemental report of the aggravating injury to the Division of Workers' Compensation in or around September 1990. The supplemental report indicated that Respondent had returned to duty on September 13, 1990, after having been released by his treating physician and after having been found fit for duty by a physician of its (South Miami P.D.) own choosing. Subsequently, Respondent separated employment with the South Miami P.D. The departure was not on amicable grounds. Even though Respondent was no longer employed as a police officer, he desired to maintain his certification with Petitioner. Respondent was aware of the requirements in order to do so. Attempting to maintain his certification, in 1992, Respondent completed an initial application for a reserve law enforcement officer with the Florida Game and Fresh Water Fish Commission (Game and Fish Commission). As a reserve officer, Respondent would be a volunteer officer and would receive no compensation. To complete the application process, on or about May 15, 1992, Respondent completed additional paperwork, including a medical history form for workers' compensation, which contained certain questions for response by an applicant. In pertinent part, the medical history form provided and inquired and Respondent responded as follows: Florida Statutes provide a special fund from which medical costs may be paid for those line- of-duty injuries in which a pre-existing physical impairment may cause a greater disability than usual. For this to apply it is necessary that this record be filed. Please complete the following: Have you ever had a serious illness, injury, or operation? YES NO X Have you ever received Workmen's Compensation benefits for an injury? YES X NO Do you now have or have you ever had any disability rating (either temporary or permanent) assignment to you by an insurance company or governmental agency either Federal, State, County, or City? YES NO X * * * 5. Have you ever had or do you now have back trouble or complaints? YES NO X * * * Explain all Yes answers on the back of this form. As requested, Respondent explained his "Yes" answer indicating that he had a back and neck injury, providing the date, that he had aggravated the injury, providing the date, and that he had been returned to full-time police duty. That same day, the additional paperwork was submitted to an officer of the Game and Fish Commission, who had the authority to recommend the hiring or not of an applicant. Before departing, Respondent briefly discussed his injury with the officer who informed Respondent, among other things, that he would be required to take and pass a physical examination and that the South Miami P.D. would be contacted. In making his recommendation, in addition to the application, the officer takes into consideration prior existing injury or disability of an applicant. Additionally, a background check is performed on an applicant. The officer of the Game and Fish Commission personally performed the background check on Respondent which included contacting the South Miami P.D. A background check should have revealed details of Respondent's injury. The officer of the Game and Fish Commission was satisfied with all the responses and results that he had received, so he recommended that Respondent be hired as a reserve law enforcement officer with the Game and Fish Commission. Respondent was subsequently hired in 1992 as a reserve law enforcement officer. At the time of hearing, Respondent had honorably served as a reserve officer for approximately one year. As a reserve officer, Respondent received no compensation for his work. Also, he maintained his own personal health insurance and received no insurance benefits from the Game and Fish Commission. At all times material hereto, Respondent did not consider his neck and back injury to be serious, since his injury did not require hospitalization, he had been returned to full-time duty and he was not taking any prescribed medication. Respondent considered a disabling injury as serious, which he did not have. As a result, Respondent intended to check "No" on the medical form for question number 1 which inquired whether he had had a serious injury. At hearing, Respondent contended that he mistakenly and negligently checked "No" on the medical form for question number 5 which inquired about back injury or complaints. Respondent's response to question number 1 was, given the circumstances, and subjective nature of the question, not false or misleading, and his response to question number 5 was, more likely than not, given Respondent's explanation on the application that he had suffered a back injury in the past, as well as providing the details thereof, a consequence of his having misunderstood or misread the question. Accordingly, Respondent's responses to such questions could hardly be construed as evidencing a lack of good moral character, or to have been rendered with the intent to mislead any public servant in the performance of his official duty.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Criminal Justice Standards and Training Commission enter a final order DISMISSING the Administrative Complaint. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 16th day of November 1994. ERROL H. POWELL 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 16th day of November 1994.
The Issue After investigation, an order was issued by the Commission on Ethics on January 24, 1992, finding probable cause that Respondent, Rubin DeLeon, violated Section 112.3145, F.S. by failing to file a statement of financial interests for the year 1989. The issue in this public hearing, therefore, is whether the violation occurred, and if so, what penalty should be recommended.
Findings Of Fact In a list submitted to Shirley Taylor, Financial Disclosure Coordinator for the Florida Commission on Ethics, the City of Lantana, Florida, identified Rubin DeLeon as a member of the Lantana Civil Service Board. In a list submitted to the Ethics Commission on October 3, 1990, Rubin DeLeon was identified as an officer who failed to file a statement of financial disclosure for the year 1989. To date, Rubin DeLeon has still failed to file the required disclosure, to the best of the knowledge and belief of Shirley Taylor.
Recommendation Based on the foregoing, it is hereby, RECOMMENDED: That the Commission on Ethics enter its Final Order and Public Report finding insufficient evidence to conclude that the Respondent, Rubin DeLeon, violated Section 112.3145, F.S. and dismissing the complaint. DONE AND RECOMMENDED this 8th day of January, 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 8th day of January, 1993. COPIES FURNISHED: Laura Rush Asst. Atty. General Acting Advocate for the Commission on Ethics Dept. of Legal Affairs The Capitol Tallahassee, FL 32399-1050 Rubin DeLeon 310 West Palm Street Lantana, FL 33462 Bonnie Williams, Executive Director Ethics Commission P.O. Box 6 Tallahassee, FL 32302-0006 Phil Claypool, General Counsel Ethics Commission P.O. Box 6 Tallahassee, FL 32302-0006
Findings Of Fact Respondent was initially employed by Petitioner on April 13, 1970. He was appointed to the position of Superintendent of Petitioner's West Palm Beach Field Station in 1973, and continued in that position until March 9, 1983, when he was discharged. As Superintendent of the West Palm Beach Field Station, Respondent supervised approximately 80 maintenance operations and administrative employees. The facility is located adjacent to Petitioner's headquarters, and is somewhat larger in terms of employees than Petitioner's other field stations. Respondent was a generally capable and dedicated employee of Petitioner. However, his management style and personality were often irritating to his employees, coworkers and supervisors. The incident which precipitated his discharge involved the retirement of a valued employee who was supervised by Respondent. The employee informed Respondent's supervisor that one of the reasons for retirement was his difficulty in working for Respondent. Specifically, the retiring employee was embarrassed by Respondent's handling of a subordinate's failure to earn promotion. Respondent advised the employee in his subordinate supervisor's presence that he (Barnette) was ready to promote the employee, but that the subordinate supervisor was opposed. The cancellation of the promotion was unnecessarily dramatized by Petitioner dropping the promotion form in the wastebasket in the presence of the subordinate supervisor and the employee. The testimony of witnesses from the West Palm Beach Field Station established that the Respondent has a hot temper, and is subject to frequent temper outbursts. His radio room operator overheard Respondent yelling at people in his office through a closed door once every week to two weeks. Other witnesses also observed the Respondent engaged in loud arguments with his subordinates. Respondent admitted on cross-examination to having a temper, and did not deny that the incidents attested to by Petitioner's witnesses. Respondent's temper outbursts were unacceptable conduct, and Petitioner counseled Respondent regarding this deficiency in 1978 and periodically thereafter. The testimony of Mr. George Dupley, Supervising Professional Engineer, established that on several occasions Respondent refused to comply with design instructions from headquarters, which resulted in additional project cost to the District. His testimony also indicated Respondent had a generally uncooperative attitude, and that he was much less cooperative than other field station superintendents, with whom Mr. Dupley had no problem. Mr. Rob Baskin, Assistant Structure Maintenance Coordinator, was subjected to an incident where Respondent blew up at him in the presence of other employees and told him to leave the job, while he was attempting to carry out assigned duties. Dupley, Baskin and other headquarters staff personnel avoided dealing with Respondent whenever possible because of his hot temper and hostile attitude. Respondent's uncooperative attitude extended to the District's personnel office. Respondent generally disregarded the Petitioner's recruitment policy which required that no external applicant be interviewed or hired for an open position until internal employees had been interviewed. Respondent's refusal to comply with this policy created morale problems and prompted the filing of several employee grievances. Respondent was counseled on this problem in 1981. Respondent's disregard of personnel policy was most flagrant in his hiring of his niece's husband in 1982, after being advised by Petitioner's personnel office that such action would constitute a violation of its anti- nepotism policy. Respondent was disciplined for this infraction under Petitioner's "Corrective Action Policy" (discussed below), and assigned 25 points. This was a "category 2" offense for which the penalty was to remain in effect for six months. This disciplinary action would have expired March 14, 1983, five days after Respondent was discharged. In the nepotism memorandum, dated September 17, 1982, Respondent's supervisor also stated: [I]t has come to my attention from numerous sources that both employees and supervisors avoid discussions with you for fear of temper outbursts. You are attempting to maintain a one man iron rule at the station which is out of step with the District's management philosophy . . . Any future problems may require dismissal. Although Respondent never received an unsatisfactory merit review rating, his April 7, 1978, rating included the following observations: A negative form of reluctance is evident relative to meeting organizational and program objectives. There is too much disregard for certain headquarters expertise. As a superintendent improvement is mandatory. Decision-making on certain occasions appears tainted with prejudice against endeavors of well intentioned key staff members. Respondent's most recent merit review rating, dated October 21, 1982, included the following: The handling of matters which impact on board personnel must improve. Emphasis has been placed upon this issue in several previous evaluations, including the last two. Thus, Respondent had ample notice of his expected performance and the opportunity to correct his deficiencies. In addition to the above notices and meetings, Petitioner's efforts to upgrade Respondent's performance included his attendance at several management training seminars. After concluding that Respondent would have to be replaced, Petitioner considered demoting rather than discharging him. However, no suitable position was available. Petitioner's Corrective Action Policy (Respondent's Exhibit One, in evidence) sets forth expected standards of performance for all District personnel. Respondent is familiar with these standards, both as a supervisor and as an employee of Petitioner.
Recommendation From the foregoing, it is RECOMMENDED: That Petitioner enter a Final Order discharging Respondent. DONE and ENTERED this 23rd day of September, 1983, in Tallahassee, Florida. R. T. CARPENTER, 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 23rd day of September, 1983.
