The Issue This is a rule challenge proceeding pursuant to Section 120.56, Florida Statutes, in which the Petitioner has challenged the validity of Rule 22A- 13.002(2), (3), and (4), Florida Administrative Code, as an invalid exercise of delegated legislative authority. The final hearing in this case was consolidated, for purposes of hearing only, with the final hearing in two related cases; namely, Case Nos. 87-5321 and 87-5437. At the final hearing all parties presented testimony and the Petitioner also offered six exhibits, all of which were received without objection. At the conclusion of the hearing, all parties agreed to a ten-day deadline for the filing of proposed orders. All parties have filed proposed orders containing proposed findings of fact and conclusions of law. The parties' proposed orders have been carefully considered during the preparation of this final order and specific rulings on all proposed findings are contained in the Appendix which is attached to and incorporated into this final order.
Findings Of Fact The Petitioner, Mr. Parsons, is employed by the Department of Health and Rehabilitative Services ("DHRS") as an "Assistant Mental Health Hospital Administrator." He is a career Service employee of the State of Florida. By memorandum dated October 23, 1987, Mr. Parsons submitted a "Notice Of Intent To Run For Local Political Office." The memorandum was directed to Mr. Parsons' supervisor, Mr. Britton D. Dennis. The memorandum sought approval from DHRS and from the Department of Administration ("DOA"), described the nature of the political office Petitioner is seeking, and described the working hours of the position and the salary. In the memorandum, Mr. Parsons stated that he would not campaign on job time, and would not make use of any of the state's facilities in regard to campaign activities. He also stated his intention to request a leave of absence and that he would resign from his current position with DHRS, if elected. The District Administrator of DHRS denied Mr. Parson's request for approval to become a candidate by letter dated October 30, 1987. The Administrator stated that the request was being denied "... because your candidacy would be in violation of Chapter 22A-13.002, Personnel Rules and Regulations, Florida Administrative Code, and Section 110.233(4), Florida Statutes." On October 30, 1987, Mr. Parsons' supervisor, Mr. Britton D. Dennis, indicated that he would deny the request for leave of absence because he felt that the position held by Mr. Parsons could not be vacant for an extended period of time. Mr. Parsons responded that he nonetheless desired to be a candidate for the local political office, and that he would not campaign on the job, nor use state facilities for campaign purposes. By letter dated November 5, 1987, the Secretary of DOA stated that she was unable to approve Mr. Parsons' request because it had been denied by DHRS, and because, if elected, the duties would be performed during assigned working hours. The Secretary of DOA cited DOA Rule 22A-13.002(4)(a) and (b), Florida Administrative Code. This proceeding ensued. Mr. Parsons filed a petition challenging the denial of his request by DHRS, a petition challenging the denial of his request by DOA, and a petition challenging the validity of the DOA rules that had been cited in support of the denials. Mr. Parsons is seeking to stand for election to the position of County Judge in Gadsden County, Florida. The position of County Judge is a full-time position. If elected, Mr. Parsons could not continue in his employment with DHRS. He has clearly stated that if elected he would resign from his employment with DHRS. The challenged rule provisions read as follows: 22A-13.002 Statements of Policy Section 110.233(4)(a) further provides that no employee shall hold or be a candidate for public or political office while in the employment of the state unless: The employee is seeking or holding a local public office and; Such candidacy and office is authorized by the employee's agency head and approved by the Department of Administration as involving no interest which conflicts or activity which interferes with his/her state employment. Candidacy for or holding a local public office shall be presumed to involve an interest which conflicts with an employee's state employment when the campaign or the office, if elected, is likely to give rise to a situation in which regard for a private or local interest tends to lead to a disregard of the employee's duty as a state employee. Candidacy for or holding local public office shall be presumed to involve activities which interfere with an employee's state employment in the following instances: The office is a full-time office. Campaign or, if elected, office activities are performed during the employee's assigned working hours with the State. Campaign or, if elected, office activities will involve the use of State space, personnel, time, equipment, or supplies. In its application of the challenged rule provisions, DOA reads those provisions in conjunction with Rule 22A-13.0031, Florida Administrative Code, regarding procedures. DOA has interpreted and applied the presumptions in the challenged rule provisions as rebuttable presumptions, rather than as conclusive presumptions. On at least one prior occasion since the challenged rule provisions went into effect, the DOA and the DHRS granted approval for an employee of DHRS to become a candidate for the office of County Judge without requiring resignation from state employment.
The Issue Whether Petitioner was discriminated against by Respondent, based upon her race, in violation of Section 760.10, Florida Statutes.
Findings Of Fact The Respondent, the Okaloosa County Supervisor of Elections, is an employer within the meaning of the Florida Civil Rights Act of 1992, as amended. It is an equal opportunity employer. During the time relevant to this matter, the Supervisor of Elections had 16 or 17 full-time employees, 5 of whom were black. The employees worked out of three separate locations that were approximately 25 miles apart. All employees were and continue to be at-will employees. The Supervisor of Elections is a constitutionally- elected office. The office’s primary functions are to conduct all county elections, to handle voter registration, process candidate qualification, and conduct voter education. At the time relevant to this proceeding, Patricia Hollarn was elected to serve as the Supervisor of Elections in Okaloosa County from January 1989 until January 2009. During her tenure, she had the authority to hire and fire her staff, pursuant to Section 129.202, Florida Statutes. Under that statute and the constitution, the Supervisor of Elections office is separate and independent from the County or the State and is not subject to County or State personnel rules. However, under Patricia Hollarn's tenure, the Respondent utilized some of the Human Resources of the Okaloosa County Board of County Commissioners for directions in some personnel policies for the termination of employees. Petitioner, Ida Lupino Cooper, is a black female. As such, she is a member of a protected class. Ms. Cooper was hired by Respondent on July 31, 2007, as an Elections Specialist I and was assigned to work out of the Fort Walton Beach office. Essential job functions included the computerized data entry of voter registration information and information related to applicants who registered for elected offices in Okaloosa County, as well as assisting with elections and primaries. Other essential job functions included responding to concerns over voter-related matters and performing administrative support, answering the telephone, sorting and dispersing the mail and any other assigned duties related to the Supervisor of Elections’ offices. Important to job performance was the ability to tactfully and effectively interact with the public and with co-workers. Although there are consistent day- to-day functions in preparing for each election, critical workload increases around the day elections are held. Workload was particularly heavy during the 2008 primary and general elections due to large increases in voter registration and turnout. The Fort Walton Beach office employed two Election Specialists. Kimberly Williams, who is white, was the other Election Specialist at the Fort Walton Beach office. Ms. Williams was the only employee Petitioner alleged was similarly situated to her. The Petitioner's and Ms. Williams’immediate supervisor was Louise McGirr. She held the position of Voter Registration Coordinator. Ms. McGirr supervised all employees who had data entry responsibilities. She worked one day a week at the Fort Walton Beach office. A goal of the Supervisor of Elections was to have and maintain a reputation of accuracy in the data collected by the Supervisor’s office. To achieve that goal, Ms. Hollarn created a position to oversee the accuracy of the data entry and editing process. Brenda Ball was the Quality Control Editor who oversaw the data entry and editing process for the Supervisor of Elections. Ms. Ball was sometimes assisted in her quality control responsibilities by Martha Hall from the warehouse. She was not a direct supervisor of Petitioner or any of the Elections Specialists. In order to oversee quality control, Ms. Ball received hard copies of data contained in Verification Reports that had been entered by the employees in the office with data entry responsibilities. The data primarily consisted of names, addresses and other information relevant to a voter’s right to vote. Each report also reflected the person who had entered the data. From the Verification Reports, Ms. Ball and sometimes Ms. Hall edited and corrected errors and omissions in the data that had been entered. She and Martha Hall generally reviewed and corrected all of the data entries made by the Election Specialists on a daily basis. The Verification Reports reflected that all of the Elections Specialists made repetitive mistakes in their data entry. The most commonly-found errors were capitalizations in the wrong place, misspelling the name of voters, incorrect and missing mailing addresses, missing apartment numbers and missing zip codes, as well as faulty formatting. Ms. Ball did not tally or keep a record of the errors, but would routinely advise all employees about consistent types of errors she was noticing and to be accurate. However, there was no definitive measurement or standard regarding the number of errors that were acceptable or unacceptable. In Petitioner’s Probationary Employee Performance Appraisal of January 9, 2008, Ms. Cooper received all 2s on a rating scale of 0 to 5. A score of 2 indicated that the employee “meets expectations.” One of the categories reviewed was for accuracy. In that category, Petitioner received a 2, reflecting the criteria that her work was “normally correct and timely.” Additionally, from the comments of Petitioner’s supervisors, including Ms. Hollarn, Petitioner clearly needed to learn more, but her employer was satisfied with her performance. Petitioner’s overall performance was scaled as 30 points out of a potential 60 points. The score made her eligible to receive a 3 percent performance pay increase which she received. The available options were no increase or a 3 percent performance pay increase. She signed the evaluation and testified that she was happy with it. Kimberly Williams received her Probationary Employee Performance Appraisal on March 17, 2008. Like Petitioner, she received all 2’s and a scaled score of 30 out of 60 points. It was noted in her evaluation that she normally arrived early to work. Like Petitioner, Ms. Williams’ supervisors, including Ms. Hollarn, were satisfied with her performance and she received a 3 percent performance pay increase. There was no evidence presented that Petitioner was treated less favorably or subjected to more scrutiny than Ms. Williams Over the next several months and in an attempt to address Petitioner’s job performance, Ms. Hollarn, met with Petitioner on several occasions providing verbal counseling to her regarding her job performance. These “meetings” were not formal and were more like friendly conversations geared towards helping an employee. This type of employee counseling was in line with Ms. Hollarn’s style of supervising. Additionally, Louise McGirr, Petitioner’s supervisor, sent written counseling to her staff reminding the Petitioner and other Election Specialists about consistent types of data entry errors and the need for accuracy. Contrary to the allegations contained in her FCHR complaint and Petition, Petitioner admitted that she had received such counseling from her supervisors. During these meetings with Petitioner, Ms. Hollarn noted that Petitioner often tried to compare her work to other employees instead of focusing on her work and how to improve her performance. Ms. Hollarn did like this trait of Petitioner and felt she should pay attention to improving her own work. Such an opinion is not uncommon among supervisors, and there was no evidence that demonstrated Ms. Hollarn’s opinion was based on race. On July 10, 2008, Petitioner received her Annual Employee Performance Appraisal. She again received all 2’s on a rating scale of 0 to 5, including the category of “accuracy.” Her overall performance again was 30 points out of a potential 60 points. Thirty points was the lowest-scaled score in the “meets expectations” category. The next category down was “needs improvement.” The scaled score made her eligible to receive a 1 percent performance pay increase, which she received. The Appraisal noted that she frequently detailed other employee’s flaws, rather than focus on her responsibilities. The Appraisal also noted that she had a lot to learn, but dealt with the public well. In short, the Appraisal reflects that Petitioner was perceived as an average employee after one year, especially since Petitioner did not volunteer for non-mandatory overtime and did not arrive or begin work early. Petitioner refused to sign her Employee Performance Appraisal because she thought it should be higher so that she could qualify for a higher pay increase. Contemporaneous to Petitioner’s Annual Employee Performance Appraisal, she was verbally counseled by her supervisor, Louise McGirr on July 10, 2008. Ms. McGirr warned Petitioner that her attention to detail and work performance were unsatisfactory and she needed to improve. Kimberly Williams received her Annual Employee Performance Appraisal on November 18, 2008. She received mostly 2’s and several 3’s on a rating scale from 0 to 5. She received a 2 in the category of “accuracy.” However, she received 3’s in reliability, attendance, productivity, follow through and initiative. Ms. Williams received a scaled score of 35 out of 60 points. The scaled score made her eligible to receive a 1 percent performance pay increase. For unknown reasons, Ms. Williams was not recommended for the pay increase by the Supervisor of Elections and, unlike Petitioner, did not receive the pay increase. However, the Appraisal indicated that her supervisors and Ms. Hollarn were impressed with Ms. Williams’ drive, self-starting ability and initiative which she demonstrated during the 2008 election which was record-setting in the number of voter registrations and turnout. The testimony revealed that Ms. Williams was perceived as more than an average employee, especially since she arrived and began work early and volunteered for overtime even though it was not required. Again there was no evidence that Petitioner received more scrutiny in her job performance than Ms. Williams Sometime in late summer of 2008, Ms. Hollarn was involved in an automobile accident that resulted in very serious injuries to her, and caused her to be hospitalized and homebound for several weeks. During the period of the first election primary in August, Ms. Hollarn conducted meetings from her hospital room and placed Shirley Young and Louise McGirr in charge during the election primary. The August 26, 2008, primary was an unusually busy time at all the Supervisors’ offices and was a period when tensions ran high and time was of the essence because election results were being counted. As indicated, Shirley Young was acting on behalf of the Supervisor of Elections at the time due to Patricia Hollarn’s continued incapacitation from her car accident. Ms. Young was trying to determine whether or not a specific precinct’s voting machine uploaded critical election results from the Fort Walton Beach office to the Crestview office. The difficulty with the machine was causing a delay in the election results which the media and public were waiting on and which the Chairman of the Canvassing Board, a county judge, was becoming impatient over the delay. Ms. Young called the Fort Walton Beach office to inquire about the delay and asked to speak to Pam McCelvey, who had knowledge about the information she was seeking. Petitioner answered the telephone and placed Ms. Young on hold after asking her "if she could wait a minute." Petitioner placed Shirley Young on hold, for a period of time, estimated to be from 10 seconds to 5 minutes. Petitioner or someone else hung up the phone on Ms. Young, requiring Ms. Young to call back a second time. Ms. Young believed it was Petitioner who hung up on her, but irrespective of who hung up, Ms. Young felt that she should not have been placed on hold and made to wait for critical election information. Ms. Young was “shocked” and embarrassed at Petitioner’s actions and felt very strongly that Petitioner did not show tact or effective interaction with her at a very critical time during the election. Ms. Young conveyed the above events of the election night to Patricia Hollarn. At the time, neither Ms. Hollarn nor Ms. Young discussed the telephone incident on election night with the Petitioner, and Petitioner was not disciplined for placing Ms. Young on hold or hanging up on her. From her demeanor at the hearing, Ms. Hollarn was very displeased and somewhat embarrassed about the telephone incident and felt Petitioner had acted very inappropriately, did not fit in the office and, more than anything else, precipitated Ms. Hollarn’s decision to terminate Petitioner. Even though the facts may be in dispute as to exactly what happened during the August primary, there was no evidence that Ms. Hollarn’s perception of the incident was illegitimate or related to Petitioner’s race. Shortly after the telephone incident and when she was physically able to address the matter, Ms. Hollarn began looking for a reason to terminate Petitioner. Ms. Hollarn asked Brenda Ball about Petitioner’s data entry accuracy. She did not ask Ms. Ball about any other employee’s data entry accuracy. However, at hearing, Ms. Ball’s impression was that Kimberly Williams made as many errors and similar errors as Petitioner. Although the evidence was not clear on what information was reviewed, Ms. Ball reviewed some information on Petitioner’s errors since her last evaluation on July 10, 2008. The information included the Verification Reports she received. In an email dated September 17, 2008, Ms. Ball responded to the Supervisor of Elections’ inquiry. Ms. Ball stated that there had been some improvement in Petitioner’s data entry performance since her last performance evaluation of July 10, 2008, but that Petitioner’s performance had slowly declined since then. She also described the type of consistent errors Petitioner made while entering data. Ms. Hollarn did not discuss the fact that she intended to terminate Petitioner with Ms. Ball. At the time of Ms. Hollarn’s inquiry, Ms. Ball did not know Petitioner would be terminated and she did not recommend her termination. During her testimony, Ms. Ball reviewed Verification Reports from the data that had been entered by Petitioner and by Kimberly Williams, her white comparator. The review during the trial covered data entered during August 2008 and part of September 2008 until the day of Petitioner's termination. The evidence did not demonstrate that these were the same reports that Ms. Ball had reviewed for her response to Ms. Hollarn’s earlier inquiry regarding Petitioner. A very rough tally of the errors that were counted during the hearing indicated that for 30 days in August 2008, Petitioner made 79 demonstrated errors while her white counterpart, Kimberly Williams, made 37 errors during a 10-day period in August. For ten days in September 2008, Williams had 92 demonstrated errors, while Petitioner made 88 errors for 11 days in September. Indeed, Ms. Ball's review of both Petitioner and Williams’ data entry during the hearing, while not scientific or precise, clearly indicated that they both made the same type of repetitive errors. However, the Verification Reports presented at the hearing did not demonstrate whether the number of errors made by Petitioner and Ms. Williams were significantly comparable or different because the reports did not cover the same periods of time, account for variability in office duties and were not analyzed statistically in any scientific manner. No expert witness or independent objective analysis of the numbers was offered at the hearing. Petitioner offered the testimony of Tiffany Lovett, the Candidate Coordinator for the Supervisor of Elections Office, who was responsible for maintaining information on voter petitions and absentee ballots. She testified that she had previously had problems with data entry performed on her work by Kimberly Williams substantial enough that she complained to Louise McGirr and to Pat Hollarn about Williams’ inaccuracy. The evidence was not clear whether Petitioner entered data for Ms. Lovett or, if she did, the time period that Petitioner entered such data. However, Ms. Lovett also testified that all employees made errors in data entry and made such errors especially during the 2008 primary period. Patricia Hollarn formalized her decision to terminate Petitioner's employment on September 19, 2008. On that date, Ms. Hollarn came to the Fort Walton office in a wheel chair. She was still recovering from her automobile accident. She requested that Petitioner meet with her and Shirley Young. During the meeting, Ms. Hollarn gave Petitioner a letter of termination, effective that day. The letter specifically stated: On July 10, 2008, you were counseled by your supervisor, Louise McGirr, regarding your work performance and attention to detail in your office duties. Although a slight improvement did occur for a short amount of time, a consistent, significant improvement has not been seen. . . . therefore, as of today your current employment is terminated (per 129.202(2) FS and Okaloosa County Human Resources Policy Manual Chapter XX, Section B 4k “Incompetence and inefficiency in the performance of assigned duties”). . . . During the meeting, Ms. Hollarn also told Petitioner that she was not a good fit in the office which the evidence showed was more indicative of the real reason for Petitioner’s termination. Ms. Hollarn admitted that she had not personally reviewed Petitioner's work performance, work product or alleged work errors, but relied on information and input she received from Jimmie Giles, Brenda Ball, Louise McGirr and Shirley Young about Petitioner's job deficiencies. However, Jimmie Giles testified that she did not give any information to Ms. Hollarn about Petitioner's job performance. Ms. Giles made it clear that her job duties were data entry, she did not supervise any employees, and she certainly did not recommend that Petitioner be fired from her job. On the other hand, Ms. McGirr and Ms. Young both provided negative input about Petitioner’s job performance. In particular, Ms. McGirr reported that Petitioner did not volunteer to work overtime, despite the need created by the upcoming elections. Petitioner’s lack of focus on solving her performance issues and focus on other employee’s performance and her unwillingness to “volunteer” for overtime all contributed to Ms. Hollarn’s negative view of Petitioner. Added to this negative view was the telephone incident that was reported to her by Ms. Young and was embarrassing to her office. None of these reasons were based on Petitioner’s race. Given these facts, the fact that the termination letter did not state the real or all the reasons for Petitioner’s termination does not demonstrate that Respondent’s motives for terminating Petitioner were based on Petitioner’s race. Petitioner was terminated for her poor work performance, less than self-motivated conduct and the telephone incident. There was no evidence that Respondent’s reason for termination was a pretext to cover discrimination. Moreover, Petitioner’s termination was not solely based on data entry errors. Differences between the work of Petitioner and Ms. Williams, brought out at the hearing, pertained to their overall performance. Although Ms. Williams and Petitioner received identical scores of 30 on their Probationary Employee Performance appraisals, Ms. Williams received a higher score on her first Annual Employee Performance Appraisal. Despite the five-point higher score than Petitioner, Ms. Williams received no pay increase, while Petitioner received a 1 percent pay increase. Finally, Petitioner was replaced by Latoya Knox, who is black, had previously worked in the office and who Ms. Hollarn wanted to hire back. Given these facts, Petitioner did not establish by a preponderance of the evidence that she was treated differently than comparable non-minority co-workers, her termination was based on her race or that the reasons given for her termination were a pretext for discrimination. Therefore, the Petition for Relief should be dismissed.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a Final Order dismissing the Petition for Relief with Prejudice. DONE AND ENTERED this 30th day of March, 2010, in Tallahassee, Leon County, Florida. S DIANE CLEAVINGER 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 30th day of March, 2010. COPIES FURNISHED: Michael K. Grogan, Esquire Allen Norton & Blue 800 West Monroe Street, Suite 100 Jacksonville, Florida 32202 Carolyn Davis Cummings, Esquire Cummings & Hobbs, P.A. 462 West Brevard Street Tallahassee, Florida 32301 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Larry Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue Whether Respondent, Jean M. Hovey, willfully violated Subsection 106.143(1)(a), Florida Statutes (2008), as alleged in the Order of Probable Cause dated August 26, 2009, and, if so, what is the appropriate penalty.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing, the following Findings of Facts are made: Respondent was a candidate for Winter Springs, Florida, city commission in 2008. Respondent was a first-time candidate for public office. She evidenced her decision to enter the city commission race by qualifying on August 28, 2008, one day prior to the deadline to qualify. A component of qualifying is the candidate's assertion that they have read and understand the requirements of Chapter 106, Florida Statutes. As a result of her late filing, Respondent had only five or six weeks to actively campaign. Responding to the advice of volunteer advisors, on September 4, 2009, Respondent hired Denise Ryser to manage her campaign. Ms. Ryser had previously managed a successful city commission race and was managing two other Winter Springs city commission races. Ms. Ryser was qualified to manage a city commission campaign. Ms. Ryser's initial focus was to prepare a campaign mailer. It was important that the mailer be presented to the voters as quickly as possible. Respondent provided the biographical information for the mailer; Ms. Ryser did the graphics, layout, color selection, and the "marketing" of the mailer. Several layouts/mock-ups of the mailer were prepared by Ms. Ryser and submitted to Respondent for approval. Each layout/mock-up submitted to Respondent contained the statutorily-mandated disclaimer. Subsection 106.143(1)(a), Florida Statutes, requires that: Any political advertisement that is paid for by a candidate and that is published, displayed, or circulated prior to, or on the day of, any election must prominently state: "Political advertisement paid for and approved by (name of candidate), (party affiliation), for (office sought)." After Respondent finally approved what she believed to be the final layout/mock-up, Ms. Ryser, on September 19, 2008, electronically forwarded a layout/mock-up to a printer in Miami. Inexplicably, the layout/mock-up forwarded by Ms. Ryser did not contain the statutorily-mandated disclaimer. This failure was attributed to a transmission error. Because Ms. Ryser perceived a need for "handouts" to be distributed by Respondent at personal appearances, Ms. Ryser, on the same day, September 19, 2008, ordered 100 additional mailers from a local printer. These mailers contained the statutorily- mandated disclaimer. When the Miami printer returned the mailers to Ms. Ryser, without further examining the mailers, she took them directly to a "mail-house" in Winter Park, Florida, to be mailed to 11,000 registered Winter Springs, Florida, voters. They were mailed on October 2, 2008. Respondent did not receive a mailer, as she was not on the mailing list. Ms. Ryser received a mailer at her home on Saturday, October 3, 2008. It was not until Sunday, October 4, 2008, that she noticed the absence of the statutorily-mandated disclaimer. Ms. Ryser immediately called Michael Ertel, Seminole County, Florida, supervisor of elections, and advised him of the error. Mr. Ertel did not testify. However, the parties stipulated that he would have testified that he advised Ms. Ryser to remail the mailer with the proper disclaimer and destroy the remaining mailers without the disclaimer. On Monday, October 6, 2008, Ms. Ryser discarded the mailers in her possession. At Ms. Ryser's direction and paid for by her, the mail-house printed the appropriate disclaimer on the remaining 3,000 mailers in its possession and mailed them to voters. On Tuesday, October 7, 2008, Respondent attended a candidates' night at Highland's in Winter Springs, and mailers were available to the public at this event. Unrefuted testimony indicates that Respondent's mailers, without the statutorily- mandated disclaimer, were available to the public at this meeting. Respondent did not learn that the mailers did not have the statutorily-mandated disclaimer until October 8, 2008, when she and her volunteer campaign advisors confronted Ms. Ryser about the error. Ms. Ryser acknowledged that the failure to include the statutorily-mandated disclaimer was her error and that Respondent was unaware of the error until October 8, 2008.
The Issue The issue in this case is whether the Petitioner's request to become a candidate for election to the office of County Judge while retaining his state employment should be granted or denied. The final hearing in this case was consolidated, for purposes of hearing only, with the final hearing in two related cases; namely, Case Nos. 87-5313R and 87-5437, At the final hearing all parties presented testimony and the Petitioner also offered six exhibits, all of which were received without objection. At the conclusion of the hearing, all parties agreed to a ten-day deadline for the filing of proposed orders. All parties have filed proposed orders containing proposed findings of fact and conclusions of law. The parties' proposed orders have been carefully considered during the preparation of this recommended order and specific rulings on all proposed findings are contained in the Appendix which is attached to and incorporated into this recommended order.
Findings Of Fact The Petitioner, Mr. Parsons, is employed by the Department of Health and Rehabilitative Services ("DHRS") as an "Assistant Mental Health Hospital Administrator." He is a career service employee of the State of Florida. By memorandum dated October 23, 1987, Mr. Parsons submitted a "Notice Of Intent To Run For Local Political Office." The memorandum was directed to Mr. Parsons' supervisor, Mr. Britton D. Dennis. The memorandum sought approval from DHRS and from the Department of Administration ("DOA"), described the nature of the political office Petitioner is seeking, and described the working hours of the position and the salary. In the memorandum, Mr. Parsons stated that he would not campaign on job time, and would not make use of any of the state's facilities in regard to campaign activities. He also stated his intention to request a leave of absence and that he would resign from his current position with DHRS if elected. The District Administrator of DHRS denied Mr. Parson's request for approval to become a candidate by letter dated October 30, 1987. The Administrator stated that the request was being denied ". . . because your candidacy would be in violation of Chapter 22A-13.002, Personnel Rules and Regulations, Florida Administrative Code, and Section 110.233(4), Florida Statutes." On October 30, 1987, Mr. Parsons' supervisor, Mr. Britton D. Dennis, indicated that he would deny the request for leave of absence because he felt that the position held by Mr. Parsons could not be vacant for an extended period of time. Mr. Parsons responded that he nonetheless desired to be a candidate for the local political office, and that he would not campaign on the job, nor use state facilities for campaign purposes. By letter dated November 5, 1987, the Secretary of DOA stated that she was unable to approve Mr. Parsons request because it had been denied by DHRS, and because, if elected, the duties would be performed during assigned working hours. The Secretary of DOA cited DOA Rule 22A-13.002(4)(a) and (b), Florida Administrative Code. This proceeding ensued. Mr. Parsons filed a petition challenging the denial of his request by DHRS, a petition challenging the denial of his request by DOA, and a petition challenging the validity of the DOA rules that had been cited in support of the denials. Mr. Parsons serves as the Administrator of Forensic Services at Florida State Hospital in Chattahoochee, Florida. Mr. Parsons has administrative responsibility for the day-to-day operations of the Forensic Unit. The Forensic Unit houses psychiatric patients who have been placed in the hospital in connection with criminal charges. These patients have been found incompetent to stand trial on criminal charges, have been committed as "mentally disordered sex offenders," or have been hospitalized after having been found not guilty of criminal charges by reason of insanity. Mr. Parsons answers directly to the Administrator of Florida State Hospital. Mr. Parsons supervises approximately 700 employees. Mr. Parsons has performed his job duties in an exemplary manner. He has always received the highest evaluations and he has been an innovative leader of the Forensic Unit. Mr. Parsons is seeking to stand for election to the position of County Judge in Gadsden County, Florida. The position of County Judge is a full-time position. If elected, Mr. Parsons could not continue in his employment with DHRS. He has clearly stated that if elected he would resign from his employment with DHRS. Mr. Parsons will conduct his campaign activities in such a manner as not to interfere with his employment with DHRS. If DHRS prefers, he will take a leave of absence without pay from his employment during the course of the campaign. If his supervisor does not wish for him to take a leave of absence, Mr. Parsons will conduct his campaign without a leave of absence. In either event, Mr. Parsons will conduct no campaign activities while on the job and he will utilize no state facilities in his campaign. It is possible that Mr. Parsons' job with DHRS would make it difficult for him to campaign at certain times. In the event of such conflicts, Mr. Parsons will give precedence to his job responsibilities and will forego campaign activities to the extent they conflict with the fulfillment of his job responsibilities. There are limited times during which Mr. Parsons serves as the Administrative Officer of the Day for Florida State Hospital, as well as limited times when he serves as the Administrative Officer of the Day for the Forensic Unit. During these times he is required to be in contact with the hospital by "beeper" on a twenty-four hour basis. The beeper service used by the hospital for Administrative Officers of the Day allows the officer to be contacted at any location in Gadsden or Leon County. Mr. Parsons' campaign activities would be conducted in Gadsden County only and he would be available to respond as Administrative Officer of the Day to the same extent that he and other employees who share this duty are presently available. Mr. Parsons' campaign activities would not conflict with his job responsibilities with DHRS. Indicative of his ability to conduct outside activities without interfering with his job responsibilities at DHRS is the fact that Mr. Parsons has conducted a part-time private practice of law during the past three years without any conflict with his DHRS job responsibilities. The Department of Administration has adopted rules regarding requests to run for or hold local public office. Those rules provide, in pertinent part, as follows: 22A-13.002 Statements of Policy Section 110.233(4)(a) further provides that no employee shall hold or be a candidate for public or political office while in the employment of the state unless: The employee is seeking or holding a local public office and; Such candidacy and office is authorized by the employee's agency head and approved by the Department of Administration as involving no interest which conflicts or activity which interferes with his/her state employment. Candidacy for or holding a local public office shall be presumed to involve an interest which conflicts with an employee's state employment when the campaign or the office, if elected, is likely to give rise to a situation in which regard for a private or local interest tends to lead to a disregard of the employee's duty as a state employee. Candidacy for or holding local public office shall be presumed to involve activities which interfere with an employee's state employment in the following instances: The office is a full-time office. Campaign or, if elected, office activities are performed during the employee's assigned working hours with the State. Campaign or, if elected, office activities will involve the use of State space, personnel, time, equipment, or supplies. In its application of the foregoing rule provisions, DOA reads those provisions in conjunction with Rule 22A-13.0031, Florida Administrative Code, regarding procedures. DOA has interpreted and applied the presumptions in the foregoing rule provisions as rebuttable presumptions, rather than as conclusive presumptions. On at least one prior occasion since the challenged rule provisions went into effect, the DOA and the DHRS granted approval for an employee of DHRS to become a candidate for the office of County Judge without requiring resignation from state employment.
Recommendation For all of the foregoing reasons, it is recommended that the Department of Health and Rehabilitative Services enter a final order denying the Petitioner's request to become a candidate for election to the office of County Judge DONE AND ENTERED this 19th day of February, 1988, at Tallahassee, Florida. Michael M. Parrish, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of February, 1988.
The Issue Whether Freda Sherman Stevens (Respondent), a candidate in the 2008 primary for a seat in the Florida House of Representatives, willfully violated section 106.07(5), Florida Statutes (2008), by certifying that six of her campaign reports were true, correct, and complete when they were not. Whether Respondent willfully violated section 106.19(1)(c), Florida by falsely reporting, or deliberately failing to report information required to be reported by chapter 106, Florida Statutes (2008).1/
Findings Of Fact Respondent was a candidate for the House of Representatives, District 100, in the August 26, 2008, primary election. As a candidate for the Florida Legislature, the Division of Elections of the Florida Department of State (the Division), was Respondent's filing office, and Respondent was required to file all her reports electronically. On October 30, 2007, Respondent filed with the Division her Appointment of Campaign Treasurer and Designation of Campaign Depository form listing herself as treasurer for her 2008 campaign. On November 1, 2007, Ms. Bronson sent Respondent a letter acknowledging that Respondent had been placed on the 2008 active candidate list. The letter advised Respondent that all candidates filing reports with the Division were required to use the electronic filing system (EFS) and provided Respondent with a personal identification number (PIN) and initial password to grant access to the EFS. The user was expected to change the initial password after logging on for the first time. Ms. Bronson's letter included the following information: You, your campaign treasurer, and deputy treasurers are responsible for protecting these passwords from disclosure and are responsible for all filings using these credentials, unless the Division is notified that your credentials have been compromised. * * * Each campaign treasurer's report filed by means of the EFS is considered to be under oath by the candidate and campaign treasurer and such persons are subject to the provisions of Section 106.075(5), Florida Statutes. * * * An online guide is available to you on the EFS to assist with navigation, data entry, and submission of reports. The Division of Elections will also provide assistance to all users by contacting the EFS Help Desk at (850) 245-6240. All of the Division's publications and reporting forms are available on the Division of Election's web site at http://election.dos.state.fl.us. It is your responsibility to read, understand, and follow the requirements of Florida's election laws. Therefore, please print a copy of the following documents: Chapters 104 and 106, Florida Statutes; Candidate and Campaign Treasurer Handbook (September 2007 edition); 2007-2008 Calendar of Reporting Dates; and Rule 1S-2.017, Florida Administrative Code. When a campaign report is submitted electronically through the EFS, both the candidate and treasurer's PINs must be entered into the website. Though it is possible for either the candidate or the treasurer to give their PINs to another individual to enter the report on their behalf, the candidate remains responsible for the PINs and the filed reports. Respondent did little to educate herself as to her responsibilities as a candidate and as the treasurer for her campaign. She could not even remember whether she read Ms. Bronson's letter, and she did not remember whether she had read the handbook referred to by Ms. Bronson. Respondent did not attend any candidate trainings offered by the Broward County Supervisor of Elections Office. On November 21, 2007, Respondent resigned as treasurer and appointed her mother, Clementine Sherman, as her new treasurer. On December 5, 2007, Ms. Bronson sent a letter to Ms. Sherman, with a copy to Respondent, acknowledging Ms. Sherman's appointment as treasurer and providing the same information contained in Ms. Bronson's letter to Respondent dated November 1, 2007 (and discussed above). On January 29, 2008, the Division accepted Respondent's appointment of herself as her deputy treasurer. Respondent did not have a system for keeping track of campaign contributions or expenditures. Pursuant to section 106.07, Florida Statutes (2008), Respondent was required to file periodic reports listing "all contributions received, and all expenditures made, by or on behalf of her candidacy." At all times relevant to this proceeding, Respondent has been the owner of Prodigal S & D Corporation, which does business as Green Apple Association of Christian Schools (Green Apple). Respondent was authorized to issue and sign checks on the bank account owned by Green Apple. In August 2008, shortly before the primary election, Respondent placed an order with WPLG-TV for airtime to disseminate political advertisement for her campaign. The script used in the advertisement aired on WPLG included the following: "Please vote Freda Stevens for State Representative District 100 on August 26. Thank you."2/ On August 6, 2008, Respondent signed two checks made payable to WPLG. Both checks were drawn on the same bank account owned by Green Apple. Check 1050 was in the amount of $13,812.50. Check 1051 was in the amount of $680.00. Both checks were made payable to WPLG in payment for political advertising that Respondent had purchased from WPLG. When Respondent signed those checks to WPLG, she knew, or should have known, that there were insufficient funds in both the Green Apple account and her campaign account to cover the checks. On August 15, 2008, Respondent signed check number 1053 payable to WPLG that was drawn on the same bank account owned by Green Apple as checks 1050 and 1051. Check number 1053 was in the amount of $7,161.25 and was used to pay for political advertising that Respondent bought from WPLG prior to the primary election. When Respondent signed check numbered 1053 to WPLG, she knew, or should have known, that there were insufficient funds in both the Green Apple account and her campaign account to cover the check. Check numbered 1050 and 1051 were returned to WPLG for non-sufficient funds. WPLG did not deposit check numbered 1053. Respondent filed an original and five amended 2008 F3 Reports. Respondent certified that each report was true, correct, and complete. All reports were filed electronically utilizing the PIN number given to Respondent by Ms. Bronson. On August 22, 2008, Respondent filed her "Original Report." That report listed no campaign contribution from Green Apple, and it failed to list campaign expenditures to WPLG or other media. Because of those omissions, the report was not accurate, and it was not complete. On August 23, 2008, Respondent filed a first "Amended Report." That report listed five in-kind contributions from Respondent with the descriptor "media" under each contribution. The amounts of the in-kind contributions were $13,812.50; $680.00; $3,185.85; $7,161.25; and $3,187.00. That report was inaccurate because the in-kind contributor for three of the in- kind contributions ($13,812.50; $680.00; and $7,161.25) was Green Apple, not the Respondent.3/ Respondent lost the primary election. After the election, on August 30, 2008, Respondent filed a second "Amended Report." The five in-kind contributions from Respondent with the descriptor "media" that had been on the first "Amended Report" were deleted from the report and were replaced with the following four in-kind contributions with the reported date of the contribution in parentheses: $13,812.50 (August 6); $3,187.50 (August 20); $3,128.85 (August 18); and $680.00 (August 6). That report was inaccurate because the in-kind contributor was Green Apple, not the Respondent. That report also failed to report the check in the amount of $7,161.25 that Green Apple had issued to WPLG on August 15. On November 24, 2008, Respondent filed a third "Amended Report", a fourth "Amended Report", and a fifth "Amended Report." The third "Amended Report" deleted the in- kind contribution from Respondent dated August 6, in the amount of $13,812.50, and with the descriptor "media." The fourth "Amended Report" and the fifth "Amended Report" reflected no contributions, only expenditures, none of which was for media. These "Amended Reports" were incomplete and inaccurate. WPLG attempted to collect the monies owed by Respondent's campaign. Clementine Sherman remitted a payment (by cashier's check) in the amount of $6,000.00 on August 27, 2008.4/ Respondent remitted three money orders that were deposited September 28, October 15, and December 22, 2009, respectively. These money orders were in the amounts of $200.00, $200.00, and $680.00. These payments were not reflected on any report filed by Respondent.
The Issue Whether Petitioners are entitled to attorneys' fees and costs.
Findings Of Fact The following facts are taken verbatim from the parties' Joint Pre-Hearing Stipulation (JPS): On or about April 8, 2008, at a regularly scheduled Board of Pharmacy meeting, Respondent denied Vipul Patel's Petition for Variance from or Waiver of Rule 64B16-26.2031, F.A.C. (hereinafter Petition for Variance). On or about April 8, 2008, at a regularly scheduled Board of Pharmacy meeting, Respondent denied Se Young Yoon's Petition for Variance. On or about April 8, 2008, at a regularly scheduled Board of Pharmacy meeting, Respondent denied Miriam L. Hernandez's Petition for Variance. On or about April 8, 2008, at a regularly scheduled Board of Pharmacy meeting, Respondent denied Mirley Aleman- Alejo's Petition for Variance. On or about April 8, 2008, at a regularly scheduled Board of Pharmacy meeting, Respondent denied John H. Neamatalla's Petition for Variance. On or about April 8, 2008, at a regularly scheduled Board of Pharmacy meeting, Respondent denied Md. A. Samad Mridha's Petition for Variance. On or about April 8, 2008, at a regularly scheduled Board of Pharmacy meeting, Respondent denied Valliammai Natarajan's Petition for Variance. For convenience sake, the foregoing-named Petitioners are referred to as "Group 1." Petitioners' "Group 2" are identified in paragraphs 38 through 41 of the JPS: On or about June 10, 2008, at a regularly scheduled Board of Pharmacy meeting, Respondent denied Saurin Modi's Petition for Variance. On or about June 10, 2008, at a regularly scheduled Board of Pharmacy meeting, Respondent denied Deepakkumar Shah's Petition for Variance. On or about June 10, 2008, at a regularly scheduled Board of Pharmacy meeting, Respondent denied Ravichandran Sokkan's Petition for Variance. On or about June 10, 2008, at a regularly scheduled Board of Pharmacy meeting, Respondent denied Mijeong Chang's Petition for Variance. Respondent issued orders denying the Petitions for Variance for Group 1 Petitioners on or about May 9, 2008. Respondent issued orders denying the Petitions for Variance for Group 2 Petitioners on or about July 3, 2008. Subsequent to the entry of the orders denying their variances, each of Group 1 Petitioners retained counsel and filed petitions to challenge the denial of their variances. Subsequent to the entry of the orders denying their variances, each of Group 2 Petitioners retained counsel and filed petitions to challenge the denial of their variances. All petitions were filed within 21 days of the entry of the orders that denied the variance. Respondent did not dispute the timeliness of the petitions, but took no action on the petitions. Instead, on or about August 21, 2008, Respondent reconsidered the petitions for variance, and granted all of the Petitioners' requests. Respondent did not take action on the requests to challenge the original variance denials, did not refer the cases for formal proceedings, and did not re-visit Petitioners' claims until August 21, 2008. On or about September 5, 2008, Respondent entered orders granting Petitioners' variances. Group 1 Petitioners waited approximately five months to obtain approval of their variances. In the meanwhile, they had retained counsel and filed petitions to challenge the denials. Group 2 Petitioners waited approximately three months for their variances to be approved. They, too, retained counsel to protect their rights. In October 2008, Petitioners filed Petitions for Attorneys' Fees and Costs with Respondent. Respondent did not grant, deny, or refer those petitions to DOAH. On or about November 24, 2008, Petitioners filed a Verified Writ of Mandamus, in the Eighteenth Judicial Circuit Court, Seminole County, Florida, requesting that the court require Respondent to either grant or deny the petitions for attorneys' fees and costs. On or about December 2, 2008, Petitioners served on Rebecca Poston, executive director of the Board of Pharmacy, a summons with petition for writ of mandamus. On or about February 16, 2009, Petitioners filed a Motion for Entry of Clerk's Default for Failure of Respondent to file a Response to the writ. The case was transferred to the Second Judicial Circuit, Leon County, Florida. On or about June 4, 2010, the Second Judicial Circuit, Leon County, Florida, issued an Order to Show Cause on Respondent. Ultimately, the court denied the writ and dismissed the Order to Show Cause. Petitioners then filed Petitions for Attorneys' Fees and Costs with DOAH and the cases were consolidated for hearing. The parties agreed to bifurcate the issues and resolve the issue of whether Petitioners are entitled to attorneys' fees and costs, before addressing the remaining question of the amount of fees and costs, if appropriate to award them. Petitioners were the prevailing parties in the underlying matter, since the variances were granted. On August 1, 2008, Respondent issued a Notice of Proposed Rule Development for Florida Administrative Code Rule 64B16-26.2031. On August 1, 2008, A Notice of Proposed Rule for rule 64B16-26.2031 was published in the Florida Administrative Weekly. On August 13, 2008, approximately eight days before the variances were approved, Respondent decided to amend rule 64B16-26.2031. Implicit in this amendment, is the concession that the former version of the rule exceeded Respondent's statutory authority. Respondent approved the amended rule 64B16-26.2031, on or about June 10, 2009. Petitioners maintain that Respondent acted with an improper purpose when it denied Petitioners' initial applications and subsequent petitions for variance. Petitioners assert that Respondent caused undue delay, by failing to timely grant or deny Petitioners' petitions to challenge the variance denials, and that Respondent's failure to grant, deny, or forward the petitions to DOAH, was an abuse of the agency's discretion. Further, Petitioners claim that Respondent should have acted on the petitions for attorneys' fees and costs, or referred them to DOAH. Respondent maintains it acted appropriately and in good faith, because its actions were substantially justified and in accordance with law.
Conclusions For Petitioners: George F. Indest, III Justin C. Patrou The Health Law Firm 1101 Douglas Avenue Altamonte Springs, Florida 32714 For Respondent: Allison Dudley Assistant Attorney General Department of Legal Affairs PL-01, The Capitol Tallahassee, Florida 32399-1050
Other Judicial Opinions A party who is adversely affected by this Partial Final Order is entitled to judicial review pursuant to Section 120.68, Florida Statutes. Review proceedings are governed by the Florida Rules of Appellate Procedure. Such proceedings are commenced by filing the original notice of appeal with the Clerk of the Division of Administrative Hearings and a copy, accompanied by filing fees prescribed by law, with the District Court of Appeal, First District, or with the District Court of Appeal in the Appellate District where the party resides. The notice of appeal must be filed within 30 days of rendition of the order to be reviewed.
The Issue The issue in this case is whether the Respondent is guilty of using or attempting to use his position as mayor of the City of South Pasadena for his benefit or the benefit of candidates that he supported in the 2014 city commission election, in violation of section 112.313(6), Florida Statutes (2013).
Findings Of Fact In March 2014, the Respondent was the mayor of the City of South Pasadena, having been elected the year before. City commission elections were scheduled for Tuesday, March 11. There were two contested slots. The incumbents were Max Elson and Arthur Penny. The challengers were Harris Blair and Robert Small. The Respondent supported the challengers and donated to their campaigns to unseat the incumbents, who had been voting against the Respondent's positions since his election as mayor. Of the two elections, the Respondent was more interested in unseating Penny, who regularly opposed the mayor. Pasadena Liquors is a retail business operating in the City of South Pasadena. It was operated by Jimmy Valenty, whose family trust owned the business. Although not a resident and not eligible to vote in the city commission elections, Valenty supported Elson, who was a personal friend. A few weeks before the election, Elson mentioned to Valenty that the campaign signs Valenty allowed him to place outside Pasadena Liquors kept disappearing. Elson asked if Valenty would let him use the marquee inside the front window. Valenty agreed. Elson then asked if Valenty also would let Penny use it. Valenty had no personal interest in Penny's campaign but agreed to his friend's request. Valenty arranged the letters on the marquee to read: "VOTE ELSON AND PENNY CITY COMMISSIONER." During the week before the election, the Respondent received telephone calls regarding the marquee from several constituents who were supporting Blair and Small. They did not recall the marquee being used to solicit votes for city commission elections in the past and questioned whether it was legal. The Respondent was not aware of the sign before receiving the telephone calls and told his constituents that he would look into it. On Friday, March 7, the Respondent went to Pasadena Liquors to talk to Valenty and tell him about the telephone calls he had received. Valenty asked if the Respondent was there as mayor, and the Respondent said, no, he was there as a concerned customer or concerned citizen. During the discussion about the propriety and legality of the sign, Valenty asked to see the city's sign ordinance. The Respondent offered to get a copy of it for Valenty. Normally, the mayor would not be involved in enforcement of the city's sign ordinance. The city's government is run by the mayor and five commissioners, all elected positions. The city has five departments. The mayor oversees the administration department. Each commissioner oversees one of the other four departments. Code enforcement, which includes enforcement of the sign ordinance, is part of the community improvement department (CID). Code violations usually would come to the attention of the city through either a code enforcement inspection or a citizen complaint, which would be referred to code enforcement for investigation. It was the CID director's job to interpret, as necessary, the ordinances being enforced. His interpretation would stand unless the city commission overruled him. In March 2014, Commissioner Elson was in charge of and oversaw the CID. The CID's director, Neal Schwartz, reported directly to Commissioner Elson. After talking to Valenty, the Respondent went to Schwartz's office, told him about his conversation with Valenty, and asked for a copy of the sign ordinance pertaining to the Pasadena Liquors marquee. Schwartz copied the sign ordinance, which was long and convoluted, and highlighted the pertinent provisions. It was the CID director's opinion that the sign was legal, in part because the marquee was a "reader board" with changeable letters. The CID director offered to check with the county election supervisor to verify his opinion and was told that the city clerk, who directed the administration department overseen by the Respondent, was in charge of city elections. It was not clear from the evidence whether the Respondent was still present in the office of the CID director when he telephoned the county elections supervisor. It was clear that the Respondent had left the CID director's office before the CID director talked to the city clerk. When the clerk was asked, she was of the opinion that the sign was legal because it was not paid political advertising. She was prepared to tell the Respondent her opinion if he contacted her. The Respondent did not contact the city clerk for her opinion. After meeting with the CID director, the Respondent returned to Pasadena Liquors to show Valenty the sign ordinance. Valenty saw nothing in the highlighted portions of the sign ordinance that made it clear to him that the sign was illegal, but there appeared to him to be a size limitation. Valenty got a tape measure and concluded that the sign exceeded the size requirements. Valenty asked if the Respondent was requiring him to remove the signage from the marquee. The Respondent said no, it was up to Valenty to decide what to do with the sign. Valenty was planning to remove the sign the next day anyway to replace it with advertising for St. Patrick's Day, so he decided to go ahead and switch the signage on the marquee that day. At the election on March 11, the incumbents won. After information was reported to him about the Respondent's actions regarding the Pasadena Liquors marquee, Commissioner Penny swore out an Ethics Commission complaint alleging that the Respondent went to Pasadena Liquors and demanded that the owner remove the "vote-for-the-incumbents" sign by falsely telling him that he was in violation of the political advertisement laws, after insisting that the CID director call the supervisor of elections and not waiting for the opinion of the city clerk as to the sign's legality. After receiving and reading the ethics complaint, the Respondent brought a copy to Valenty because his name was mentioned, and the Respondent thought he should know about it. Valenty read it and said there was nothing negative in it about him, so he was not concerned about it. The Respondent did not try to influence Valenty's reaction to the complaint, and there was no evidence that there was anything else to this encounter. A few months later, the Respondent asked the city clerk to begin the process of recognizing the lounge at Pasadena Liquors for being open for 25 years and to be sure to say that it was at his request. When the city clerk broached the subject with Valenty, he declined the honor because the timing suggested to him that the recognition was to "make up for" any hard feelings that arose from the issue regarding the business's election sign. In fact, the timing was a coincidence. The city had recognized Pasadena Liquors for the 10th anniversary of its lounge being open, and other businesses in the city were recognized similarly when they reached landmark anniversaries. It was not proven by clear and convincing evidence that the Respondent's actions with respect to the Pasadena Liquors marquee were taken for the purpose of influencing the election, and it is unlikely that they had any influence on the election. In part for these reasons, it was not proven by clear and convincing evidence that the Respondent's actions with respect to the Pasadena Liquors marquee were taken for the purpose of securing a special privilege, benefit, or exemption for himself or the unsuccessful candidates. It also was not proven by clear and convincing evidence that the Respondent's actions with respect to the Pasadena Liquors marquee were taken with corrupt intent.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Ethics Commission enter a final order dismissing the charges against the Respondent. DONE AND ENTERED this 12th day of May, 2015, in Tallahassee, Leon County, Florida. S J. LAWRENCE JOHNSTON 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 12th day of May, 2015. COPIES FURNISHED: Virlindia Doss, Executive Director Florida Commission on Ethics Post Office Drawer 15709 Tallahassee, Florida 32317-5709 (eServed) C. Christopher Anderson, III, General Counsel Florida Commission on Ethics Post Office Drawer 15709 Tallahassee, Florida 32317-5709 (eServed) Millie Wells Fulford, Agency Clerk Florida Commission on Ethics Post Office Drawer 15709 Tallahassee, Florida 32317-5709 (eServed) Melody A. Hadley, Esquire Office of the Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050 (eServed) Joseph A. Corsmeier, Esquire Law Office of Joseph A. Corsmeier, P.A. Building B, Suite 431 2454 McMullen Booth Road Clearwater, Florida 33759-1339 (eServed)
The Issue Whether Petitioner, Kay McGinn, willfully violated Subsection 106.07(5), Florida Statutes (2001), when she certified the correctness of a campaign treasurer's report that was incorrect, false, or incomplete because it failed to disclose an in-kind contribution by Frank Furman for the use of telephones used by Petitioner and her campaign volunteers in offices that Mr. Furman owned.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing, the following findings of fact are made: Petitioner is the Mayor of Pompano Beach, Florida. She ran unsuccessfully for Pompano Beach City Commission in 1996. Her campaigns for the same office in 1998, 2000, and 2002 were successful. The alleged offense took place during the 2002 election campaign. Petitioner is an intelligent, conscientious public servant. She is familiar with the Florida election law and is sensitive to her obligation to follow the law and diligent in her attempt to do so. During the 2002 campaign, Frank Furman, a long-time Pompano Beach business man who enjoys an excellent reputation, offered the use of his business offices to Petitioner for campaign activities. Petitioner chose to use Furman's office on six to eight occasions to make campaign-related local telephone calls. Typically, Petitioner and five or six volunteers would spend about one hour in the early evening calling Pompano Beach voters encouraging them to vote for Petitioner. Mindful of the election law requiring the reporting of "in-kind" contributions, Petitioner asked Mr. Furman the value of the use of his telephones for reporting purposes. Furman advised Petitioner that the use of his telephones had "no value." In reporting "in-kind" contributions, Petitioner's practice was to ask the contributor to provide an invoice reflecting the "fair market value" of the "in-kind" contribution. Armed with the invoice, she would then report the "in-kind" contribution. "Fair market value" is an economic concept used most frequently in reported Florida cases when referring to the value of real property taken in condemnation actions or in determining restitution in criminal cases. Numerous definitions are found. Typically, the definitions involve "a willing buyer and a willing seller, fully informed as to the value of the object of the transaction, neither being under any compulsion to buy or sell." Respondent's Statement of Findings, which was analyzed by Petitioner's expert witness, offers an amortized cost to Mr. Furman for use by Petitioner and her volunteers of the telephones. This amortized cost is apparently advanced as evidence of "fair market value" or "attributable monetary value." Mr. Furman pays a fixed-rate of slightly less than $1,500.00 per month for the use of 32 to 33 telephone lines. This means that each line costs approximately $46.87 per month. Assuming 30 days per month, the daily cost per line is $1.56. Assuming 24-hour days, the hourly cost per line is $0.065. Further assuming that six volunteers used one telephone for one hour on eight different days, the result is 48 hours of line use. The resulting amortized use cost, given the known use by Petitioner and her campaign volunteers, is $3.12. Amortized use cost is not fair market value. Neither an "attributable monetary value" nor a "fair market value" of Petitioner's use of Mr. Furman's telephones was established. To the contrary, it was established that there was no "market" for access to six to eight telephones for one hour, one night per week. While it is assumed that Petitioner would benefit from telephone calls made by her supporters, whether made from their individual homes or from some group setting, the evidence failed to established that Petitioner's use of Mr. Furman's telephones had any "attributable monetary value" or "fair market value." Given that the use of the telephones by Petitioner was during non-working hours when the telephones would normally be idle, it is not surprising that Mr. Furman advised Petitioner that there was no cost associated with the use of his telephones. His monthly telephone bill would be the same whether Petitioner used his telephones or not. Nor is Petitioner to be faulted for relying on the contributor's assessment of the value of the "in-kind" contribution of the use of the telephones. The real value to Petitioner's campaign was the use of Mr. Furman's office as a meeting place. As a practical matter, each volunteer could have taken a list of the telephone numbers of Pompano Beach voters to their respective homes and made the telephone calls from their homes. This was not a professional "phone bank," sometimes used in political campaigns where trained callers use scripted messages designed to elicit voter preferences and where the candidates receives "feed-back" on salient issues. A "fair market value" can be easily established for such services as they are common in the market place. The evidence suggests that campaign volunteers making telephone calls to registered voters from their homes or from someone's office is a common practice in political campaigns in Florida. It is also suggested that this common practice is not reported as a campaign contribution.
Recommendation Based upon the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that the Florida Elections Commission enter a final order finding that Petitioner, Kay McGinn, did not violate Subsection 106.07(5), Florida Statutes, as alleged, and dismissing the Order of Probable Cause. DONE AND ENTERED this 13th day of January, 2004, in Tallahassee, Leon County, Florida. S JEFF B. CLARK 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 13th day of January, 2004. COPIES FURNISHED: Eric M. Lipman, Esquire Florida Elections Commission Collins Building, Suite 224 107 West Gaines Street Tallahassee, Florida 32399-1050 Stuart R. Michelson, Esquire Law Office of Stuart R. Michelson 200 Southeast 13th Street Fort Lauderdale, Florida 33316 Barbara M. Linthicum, Executive Director Florida Elections Commission The Collins Building, Suite 224 Tallahassee, Florida 32399-1050 Patsy Rushing, Clerk Florida Elections Commission The Collins Building, Suite 224 Tallahassee, Florida 32399-1050
The Issue Whether Petitioner's request to be a candidate for election to the Office of County Commissioner should be approved?
Findings Of Fact Petitioner has been a DOT employee for five years. At all times relevant, Petitioner held the position of Engineer Technician II. By letter dated February 11, 1988, Petitioner requested DOT's approval to seek election to the office of County Commissioner in Columbia County, Florida. By letter dated April 6, 1988, DOT denied Petitioner's request. The letter stated that the denial was based on DOT's interpretation of the Federal Hatch Act. By letter dated April 18, 1988, Petitioner requested a hearing under Section 120.57, Florida Statutes. The qualifying period to run for County Commissioner was July 22-24, 1988. On August 25, 1988, DOT forwarded the request for a hearing to the Division of Administrative Hearings. The duties of a county commissioner in Columbia County include enacting laws as deemed necessary, levying taxes to fund county operations, promoting the safety and general welfare of the citizens and carrying out other duties as directed by Florida Statutes. A county commissioner is required to attend regular meetings of the Board of County Commissioners. Regular meetings of the board are held on the first and third Thursdays of each month, beginning at 7:00 p.m. Additional hours of service are discretionary. A county commissioner is paid $16,918.00 annually. Petitioner works in DOT's construction division, constructing roads and bridges. His job is to check the density and compaction of asphalt and sub-base that is poured on highways and bridges. Petitioner does not make any policy decisions with DOT and the determination of what jobs he should work on and where he should make density checks is made by the project engineer. Petitioner works on some projects that are federally funded. On May 2, 1988, the DOT's general counsel wrote a memorandum in which he stated that while he remained of the opinion that all of DOT's employees were covered by the Federal Hatch Act; the determination of whether an employee was covered was to be made by the Federal Merit System Protection Board and not by DOT. The position of County Commissioner of Columbia County is not considered a full-time job. The five current county commissioners hold other full-time jobs: one is in a supervisory position with the Division of Driver's Licenses; one is a school teacher; two work for private companies; and one is self-employed and does a lot of DOT-related work.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Transportation enter a final order granting Petitioner's Request to be a candidate for the Office of County Commissioner of Columbia County. DONE AND RECOMMENDED this 7th day of February, 1989, in Tallahassee, Leon County, Florida. JOSE A. DIEZ-ARGUELLES 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 February 1989. APPENDIX Rulings on Respondent's Proposed Findings of Fact Accepted. Rejected. The evidence establishes that Petitioner worked on some federally funded projects. It cannot be determined if he only worked on those projects. 3-4. Rejected as irrelevant. Accepted. Accepted. Rejected as irrelevant. Supported by the evidence but irrelevant. Rejected as contrary to the weight of the evidence. Rejected as not a finding of fact. No evidence was presented as to what the Secretary believes. COPIES FURNISHED: Charles G. Gardner, Esquire Department of Transportation 605 Suwannee Street Tallahassee, Florida 32399-0450 Martin L. Black, Esquire 505 East Duval Street Suite C, DeSoto Place Lake City, Florida 32055 Kaye N. Henderson, Secretary Department of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0450
The Issue The issues for determination are whether Respondent, Frank Moore, violated section 112.313(6), Florida Statutes (2008), by misusing his position and/or resources within his trust to help Lonnie Evans in his 2008 re-election campaign for Mayor of Coleman; whether Respondent violated section 112.313(6) by engaging in a traffic stop of Timothy Brunson to discuss a pending ethics complaint; and if either or both violations are proven, what penalties should be imposed?
Findings Of Fact Frank Moore was an officer with the City of Coleman Police Department prior to Lonnie Evans' first election as Mayor, and became the Coleman Chief of Police at some point after Evans' first election as mayor. Chief Moore retired in 2010, but remains employed by the City of Coleman as a reserve officer. Lonnie Evans served as mayor of the City of Coleman for twelve years. Prior to his service as mayor, he was on the City Council for 24 years. Respondents Moore and Evans were, at all times relevant to this proceeding, subject to the requirements of chapter 112, part III, Florida Statutes, otherwise known as the Code of Ethics for public officers and employees. Lonnie Evans ran for re-election as mayor in 2008, and was defeated by Eve Carruthers. The election was held on December 8, 2008. Coleman is a small town in Sumter County, Florida, with approximately 600 residents and 200 registered voters. Because of the size of the community and the nature of their jobs, Frank Moore and Lonnie Evans know each other fairly well, and are, in turn, well-known in the community. At the time relevant to this case, the police department in the City of Coleman consisted of three officers: the police chief, one additional full-time patrol officer, and one reserve officer. During at least part of the time relevant to these proceedings, the full-time patrol officer was James Dingle. Mr. Dingle was hired in December of 2007. He was interviewed by Chief Moore and Mayor Evans, and Mayor Evans hired him on a conditional basis until his employment could be approved by the City Council, consistent with the town's charter. Mr. Dingle was on probationary status for the first year of his employment. In October 2008, Frank Moore and Lonnie Evans determined that his probation should be extended, and in December 2008, his employment was terminated by vote of the City Council. At the heart of Mr. Dingle's termination was his handling of traffic tickets and refusal to change the manner in which he handled them, after counseling by Chief Moore, and his unwillingness to follow orders given to him by his superiors. Mr. Dingle would routinely write tickets indicating that the offending driver was going less than his or her actual speed. The actual speed would be listed under "comments," whereas the speed Mr. Dingle fabricated would be listed on the ticket as the speed the offender was driving. Mr. Dingle felt it was a matter of officer discretion, and that it was "unethical" not to give drivers a break. Frank Moore, on the other hand, directed Mr. Dingle to use the actual speed when writing tickets, leaving the discretion up to the judge. After counseling by Chief Moore, Mr. Dingle continued to write tickets for the lower speed. Because he felt Chief Moore's direction to use the actual speed was unethical, he did not feel he needed to follow it. On July 24, 2009, some seven months after Mr. Dingle was fired and eight months after the mayoral election, the Florida Commission on Ethics received a complaint by Mr. Dingle against Frank Moore, alleging that Moore was campaigning for Lonnie Evans while on duty (COE Case No. 09-100). No corresponding complaint was received from Mr. Dingle with respect to Mr. Evans. Specifically, the complaint stated: On November 18, 2008, at or about 9:00 A.M. Chief Frank Moore failed to show for traffic court which he was subpoena to appear. . . . After I (James Dingle) completed traffic court, I went to the Coleman Police Department and observed Frank Moore and the current mayor Lonnie G. Evans inside the Chief's office with several copies of campaign (flyers) laying on his desk, I also observed a voters list of the residence of Coleman who were registered to vote in the city election and phone numbers. On two separate occasions, when I walked into the police station I overheard the Mayor talking to an unknown person asking them to vote for him. Note: that the Mayor Evans and Chief Moore were inside the City of Coleman Police Station and using the City office supplies for Mayor Evens' campaign. On one occasion I observed the Mayor hang the phone up in the middle of his conversation when I walked back into Chief Moore's office. Since Chief Moore is hard of hearing, I heard Chief Moore say to Mayor Evans "who else we can call." Note: that Chief Moore was on full uniform and on duty. I made contact with two of Coleman residences who advised me that Chief Moore was driving the Mayor around in the City's vehicle asking residences to vote for him. The following residences are willing to speak to any investigator in this matter: (1) Lucy Burnette . . . . (2) Ronnie Owens . . . At hearing, Mr. Dingle acknowledged that he had no personal knowledge regarding the allegation that Chief Moore and Mayor Evans were campaigning in a city-owned vehicle, and had never witnessed them doing so. Mr. Dingle's Coleman Police Department Daily Activity/Log Report for November 18, 2008, indicates that Mr. Dingle started his work shift at 12:30 p.m. and was in traffic court from 1:00 to 2:00 p.m. He claimed that he had stated the wrong time for the events because there were other days that week where he had appeared in traffic court in the morning. The time records do not support this statement. Mr. Dingle testified that on November 18, 2008, he entered the police station three times. The first time, he did not observe or hear anything unusual. The second time he entered, however, he claims that he heard Mayor Evans tell Chief Moore to "hush" or "be quiet." He also testified that he saw campaign flyers, envelopes and stamps on Chief Moore's desk. In addition, he saw a list that he believed to be a voter registration list on the desk. The third time he entered the police station, Mr. Dingle stated that he heard Chief Moore ask Mayor Evans "who else can you call to help him." He also claimed that the mayor again told the chief to be quiet because someone else was in the building. Contrary to his written complaint, Mr. Dingle did not testify that he saw Mayor Evans use the police station telephone and did not testify that he heard anyone asking for a vote. Mayor Evans owns and uses a cell phone. There is no clear and convincing evidence that any conversation that Mr. Dingle overheard took place using a city telephone. Mr. Evans' testimony that he did not use a city phone to campaign is credible and accepted. The door of the police station locks when it is shut, and must be opened either with a key from the outside, or by someone opening it from the inside. In addition, there is a pass-through window in Chief Moore's office through which he can observe people coming in and out of the police station. While Chief Moore is hard of hearing, he is not deaf, and he would have been able to see and hear people entering the building. His testimony that Evans at no time asked him to be quiet is credited. Moreover, overhearing the comment "who else can you call" and concluding that the comment was campaign-related requires a leap that the undersigned is unwilling to take. There are a variety of city-related tasks and events that could require the mayor and the chief of police to work together that have nothing to do with campaigning for office. This comment, standing alone or in connection with the other observations Mr. Dingle recounted, is not clear and convincing evidence of campaigning using city resources or during work hours. At some point, Mr. Dingle saw fit to remove a page from the typewritten list, along with a campaign flyer, from his supervisor's desk, presumably after Chief Moore left for the day. He did so at after his probation had been extended by Evans and Moore, and after he had received one if not two memos criticizing his performance. The list consists of a list of names and the designation "Coleman" under a column titled "City_Name." There is no title or heading on the document. There are no addresses, telephone numbers, or voter registration numbers on the list. There is no clear and convincing evidence indicating the nature of the list or whether it actually depicted registered voters.1/ Moreover, even if Mr. Dingle's testimony is credited, the presence of campaign flyers in the police station, standing alone, is not clear and convincing evidence of using city resources to campaign. The flyer was the same type of flyer posted in places all over town. Mrs. Moore testified that she had volunteered to stuff envelopes and print flyers for Mr. Evans, and did so at home over a period of several days. Mayor Evans supplied the stamps and envelopes. She then gave the envelopes and a box of flyers to her husband so that he could deliver the flyers to Mr. Evans and mail the envelopes from the post office adjacent to the police station. The Advocate offered no evidence to rebut this testimony. Moreover, as confirmed by the city clerk, the computer and printer in Chief Moore's office did not belong to the City of Coleman, but instead belonged to Chief Moore. Based on the totality of the evidence presented, clear and convincing evidence did not establish that Chief Moore and Lonnie Evans were engaged in campaign activities in the police station on November 18, 2008. On December 9, 2009, an Order Finding Probable Cause in COE Case No. 09-100, which forms the basis for DOAH Case No. 10- 1284, was filed by the Commission on Ethics. The finding was reported in a local newspaper in January of 2010. Cynthia Martin, a City of Coleman Council member, showed the newspaper article to Timothy Bronson. Ms. Martin had run against Lonnie Evans in a previous election for mayor, and lost. As a result of Ms. Martin's encouragement, both Timothy Bronson and his mother, Gloria Bronson, filed complaints with the Commission against Chief Moore on January 22, 2010, nearly fourteen months after the last election in which Mr. Evans was a candidate (COE Complaint No. 10-016). Both complaints stated that the mayor and the chief of police had, for each election, come to their house and asked them to vote for Mayor Evans. Both indicated that Chief Moore had stated that if Evans was not elected, then he would lose his job. The mayor of Coleman does not have the authority to hire or fire the police chief. Only the city council can take that action. Frank Moore continued to serve as police chief for the City of Coleman for well over a year after the election, until sometime in 2010, when he retired. Cynthia Martin visited the Bronson's in their home and brought a notary with her so that the Bronsons could complete the complaints against Moore and Evans. The Bronsons claimed that Chief Moore would drive by their home and pull into their driveway. They would come out to the fence and speak to him. From their position on the other side of the fence from the car, they claimed that they could see campaign signs for Lonnie Evans in the back floorboard of the patrol car. Timothy Bronson also testified that on one occasion, Lonnie Evans was in the patrol car with Chief Moore, and asked his mother to vote for him. Mrs. Bronson did not testify to any such request by Lonnie Evans, and testified that when Frank Moore came to the house, Lonnie Evans was not with him. Timothy claimed in his taped interview that Chief Moore was driving a white unmarked car, but at hearing insisted that the car Chief Moore drove on these occasions was gray. Mrs. Bronson, testified that the car was either white or "brownish." Chief Moore acknowledges that he sometimes drove by the Bronson home, usually in response to a complaint by Mrs. Bronson, such as people speeding on her street. He agrees that he sometimes stopped and spoke to her and her son, but denies talking about the mayoral race. He also flatly denies ever having Lonnie Evans in his patrol car at the Bronson home. The patrol cars have dark tinted windows in the back, and the view is obstructed by both the tint and the barrier separating the front and back seats. It is unlikely that either of the Bronsons would be able to see signs in the floorboard of the backseat from a location on the other side of the fence from the car. Mrs. Bronson admitted at hearing that she suffers from short term memory loss as a result of a medical event. Timothy Bronson filed a second complaint alleging the same thing on March 3, 2010, against Lonnie Evans (COE Case No. 10-043). He and his mother also filed amendments to their first complaint on March 17, 2010. Timothy Bronson alleged that Respondent pulled him over in order to talk to him about his complaint. Mrs. Bronson claimed that he followed her closely for a mile or so, and it intimidated her.2/ Clear and convincing evidence did not support Timothy Bronson's allegation. On April 14, 2010, Lucy Burnette also filed a complaint with the Commission on Ethics, against Lonnie Evans. In her complaint (Ethics Complaint 10-074), she claimed that Mayor Evans came with Chief Moore to the local fruit stand, in the police car while Chief Moore was in uniform, asking her to vote for him. Ms. Burnette did not file a complaint against Chief Moore. The complaint was written out by Cynthia Martin, while Ms. Burnette volunteered at the fruit stand. She acknowledged at hearing that some of the statements contained in the written statement were not true, and she wished that she had read the statement more closely before she signed it. For example, the statement in her complaint that "the former mayor asked me to vote for him while he was with the chief of police, in uniform" was not true. According to Ms. Burnette, Mr. Evans did not get out of the car and did not speak to her. Ms. Burnette testified that Chief Moore and Mayor Evans came to the fruit stand in a gray city police car. Mayor Evans was in the passenger seat. Chief Moore got out of the car, according to Ms. Burnette, and told her she needed to talk to Mayor Evans about what she wanted and she could possibly get it. The only indication as to when this incident supposedly occurred was that it happened just before the 2008 election. Ms. Burnette had an ongoing issue with the City of Coleman over her attempts to run a deli or barbeque on her property. At one point, while she claimed she was not a resident of Coleman, Chief Moore had been directed to "shut her down." She claimed that she wanted, but did not need, a license to operate, and that Chief Moore told her to talk to the mayor and he could help her get the license she sought. Although the record is unclear, it appears that her licensure problem exists because her property is not zoned for commercial use, and that in order for her to get a license, she would have to seek a variance from the city council. In any event, Mayor Evans does not issue licenses or direct them to be issued. While he may have had some influence on the decision- making process, the comment made by Chief Moore, if in fact he made it, made no reference to the election or voting for Mayor Evans. Ms. Burnette simply made the assumption that Chief Moore was implying that a vote for Mayor Evans would help Ms. Burnette's efforts to receive a license. She even referred to Chief Moore's statement as some sort of bribe by Mayor Evans, delivered through Chief Moore. Chief Moore often stopped by the fruit stand on his way home from work to buy some fruit. Lucy Burnette often complained to him about her problems related to getting a license when he stopped by. He testified that he told her, on more than one occasion, that she should talk to Mayor Evans or members of the city council about her problem, but did not talk to her about the election or ask her for votes. His testimony is credited. Lucy Burnette's written complaint indicates that there were witnesses to Chief Moore and Mayor Evans coming to the fruit stand in the police car. Investigator Maolli from the Commission on Ethics was unable to locate any witnesses to corroborate her account. On April 14, 2010, Ronnie Owens filed complaints with the Commission on Ethics against both Chief Moore and Mayor Evans (COE Complaint Nos. 10-075 and 10-076). Cynthia Martin approached Mr. Owens and told him about "the election thing," and asked him if he saw Chief Moore and Lonnie Evans in the car together. She asked him to file complaints with the Commission on Ethics, and actually wrote out the complaints for him to sign. Prior to Ms. Martin approaching him, Mr. Owens was not aware that there was any problem with the mayor and the police chief campaigning while on duty. He admitted that he filed the complaint after he had a "run-in" with Chief Moore over an incident that took place at a local store. The City of Coleman is bisected by a railroad track. Residents living in the neighborhood on the west side of the track are predominately African-American. This area of the town is sometimes referred to as "the quarters." It is not unusual for some residents of the quarters to sit at a table in a lot on the corner, or on someone's front porch, and play cards or dominos. Mr. Owens claims that prior to the election, he and some other men were sitting at Mr. Robert T's house playing dominos. Mayor Evans and Chief Moore drove up in the gray Crown Vic and walked over to the men, and Chief Moore asked them to support Lonnie Evans in his election. One of the men asked Evans for a campaign sign, and Evans indicated he did not have any with him, but would bring one back. Mr. Owens testified that Lonnie Evans later returned, in his truck, and gave a campaign sign to one of the men. Mr. Owens stated that there were five men present when Mayor Evans and Chief Moore came by the quarters. None of the other men testified at hearing, and Investigator Maolli was unable to find any who could corroborate that Evans and Moore came to the quarters in the police car while Moore was in uniform. Each incident reported by the Bronsons, Ms. Burnette, and Mr. Owens involved the use of a city-owned police car while campaigning. The City of Coleman owns three police cars: a marked patrol car, a white Crown Victoria, and a gray Crown Victoria. The passenger compartment of the police cars contains a computer, printer, video system, radar unit, and other equipment. By necessity, this equipment takes up space not normally filled in a regular vehicle. The City Council had approved Chief Moore's use of a car as a "take home" vehicle, and he used the white Crown Victoria almost exclusively. He drove the white police car back and forth to work from his home in Cedar Hill. He testified credibly that he was allowed to make stops in the city car, for example to pick up a grocery item, on his way to and from work. It was not permissible to use the car for personal entertainment or trips. Chief Moore also drove his personal car, a Buick Lucerne. Lonnie Evans stopped driving, at the urging of his wife and son, by either September or early October of 2008 because of his declining eyesight. As a consequence, he did not drive during the 2008 campaign. He was driven to campaign by his wife, Carolyn, in their red Jeep SUV, by a member of the City Council and former postmistress Vergie Everett (who passed away in February of 2010) in her Cadillac, or on one occasion, by Chief Moore in his privately-owned Buick. Both men testified credibly that when Chief Moore drove Mr. Evans, it was on a weekend and Chief Moore was dressed in jeans and a t-shirt. Both men also testified that there was one occasion when Lonnie Evans rode in the front seat of the white police car while it was driven by Chief Moore. A benefit was held to help Cleveland Williams, a former member of the city council, who had become disabled. After the benefit, the proceeds were counted at City Hall and placed in an envelope for delivery. Mayor Evans accompanied Chief Moore to deliver the funds raised at the benefit. The two men rode past the location in the quarters where the men played dominos on their way to Mr. Williams' home, but did not stop. Because of the amount of equipment and the "accumulated mess" in the police car, Mayor Evans found it exceedingly uncomfortable and was emphatic that he would not repeat the experience. With the exception of one of the men in the quarters requesting a sign, there is no claim that at any time signs or flyers or campaign literature of any kind was distributed. There was one occasion when, according to Chief Moore, campaign signs for both candidates were placed in a patrol car. On the one occasion when this occurred, teenagers had vandalized some campaign signs for both candidates. They were transported in the white police car to where the kids were congregated, and then placed in the marked patrol car and taken to the police station where the parents of the suspected were contacted and shown the signs. His testimony is credited. Based on the totality of the evidence presented, there is not clear and convincing evidence that Mayor Evans or Chief Moore ever used a city vehicle to campaign during the December 2008 election, and there is not clear and convincing evidence that Chief Moore campaigned on Lonnie Evans' behalf while on duty. Bob and Carolyn Bolesta also testified to a conversation with Chief Moore that they believed occurred shortly before the 2008 election. Both denied ever seeing Chief Moore and Mayor Evans riding in a police car together. However, they both testified that, on occasion, Chief Moore would come by their home to check on them, as Mr. Bolesta had suffered from some significant heath issues. On one occasion, the Bolestas testified that Bob Bolesta and Chief Moore discussed the election and Mr. Bolesta (who supported Eve Carruthers) expressed the view to Chief Moore that Mayor Evans "was in trouble." He stated that Chief Moore then said he would have to go see some people about the votes, and believed that Chief Moore initiated the conversation. Frank Moore acknowledged going out to the Bolestas to check on them, and enjoyed speaking with them. He denied, however, asking them to support Lonnie Evans for mayor. Chief Moore did admit politics may have been discussed with Mr. Bolesta, as Mr. Bolesta liked to talk about Coleman and what was going on in the town. Chief Moore denied initiated the discussion regarding the election and denied asking for votes. The Bolestas were also often visited by James Dingle when he was with the police department. Mr. Bolesta often attended city council meetings, and was disturbed about James Dingle's termination from the police department. The more credible evidence demonstrates that the Bolestas and Chief Moore did discuss politics as part of a general discussion, but that the discussion did not rise to the level of campaigning for Mayor Evans.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED that the Florida Commission on Ethics enter a Final Order and Public Report finding that no violation of section 112.313(6) has been demonstrated. DONE AND ENTERED this 16th day of February, 2011, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON 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 16th day of February, 2011.
