The Issue Whether the Respondent, Al Paruas (Respondent), as a member of the town council for the Town of Golden Beach, Florida, improperly used his influence, as a public officer, to have his wife’s parking ticket voided in violation of Section 112.313(6), Florida Statutes (2002).
Findings Of Fact At all times material to the allegations of this case, the Respondent was an elected member of the Town council. As such, the Respondent is subject to the mandates of the Code of Ethics for public officers and employees found in Chapter 112, Florida Statutes (2002). On February 10, 2000, at approximately 5:25 p.m. within the Town of Golden Beach, Florida, Dagmarra Paruas (the Respondent’s wife) illegally parked her motor vehicle in a handicapped zone at the public beach pavilion. Mrs. Paruas exited her vehicle for a short amount of time (to see about some tables at the pavilion) and when she returned to the car, Officer Santinello was at her vehicle preparing a citation. Had Mrs. Paruas been respectful, remorseful or apologetic at the time, Officer Santinello would have written only a citation warning as it is his policy to warn persons before writing a citation. Instead, Mrs. Paruas was disrespectful toward the officer. Based upon Mrs. Paruas’ parking violation and the disrespectful manner in which she exited the beach parking area, Officer Santinello decided he would let the citation stand. Factors contributing to the officer’s decision were: the aggressive backing out of the parking space causing Officer Santinello to move quickly out of Mrs. Paruas’ vehicle’s path; Mrs. Paruas’ demand to speak to Hernan (Hernan Cardeno, the Town’s police chief); and the way Mrs. Paruas threw the ticket back at him after he attempted to hand the citation to her. Mrs. Paruas is a member of the Town’s beach committee. At or near the time of the citation, Mrs. Paruas was checking on arrangements at the beach pavilion for the beach committee. She did not believe the citation was fair because she was at the pavilion for a short time and was there in her capacity as a Town beach committee member. After Mrs. Paruas advised the Respondent that she had received a citation for parking at the pavilion, the Respondent telephoned the Town’s chief of police. During the conversation with the chief (Hernan Cardeno) the Respondent stated he was unhappy with the way the police department was being run and was unhappy his wife had received a parking citation. Mr. Paruas did not understand why his wife had received the citation. At a subsequent meeting with the police chief at the police department, the Respondent asked when the Town started giving councilmen’s wives tickets. The Respondent again reminded the police chief that he was unhappy with the police department. At the time, the Respondent was serving as vice mayor for the Town. The Respondent was not persuaded by the information provided to him regarding the ticket. He continued to complain regarding the citation to the police chief and to Officer Santinello. At some point during the meeting at the police office, Officer Santinello was told it would be in his best interests to take back the citation. When Officer Santinello asked whether his job was being threatened, he advised the Respondent and the police chief that he would contact the police union. The Respondent told Officer Santinello to take back the ticket and apologize to his wife. A short while later (after the Respondent had left the police office), the police chief suggested to Officer Santinello that he should void Mrs. Paruas’ ticket. The next day, Officer Santinello voided the citation by preparing a County Court Cancellation Form for the ticket. Mrs. Paruas was not required to pay the citation or appear in court or have any adverse entry on her driving record. Officer Santinello voided the citation because he was afraid of losing his job. He did not want additional conflict over the matter. Officer Santinello did not want to get on the Respondent’s bad side, given his position in the Town. Officer Santinello would like the entire incident to be forgotten. Officer Santinello expressed regret over the incident as it has potentially damaged his employment future with the Town. Mrs. Paruas and the Respondent benefited from the cancellation of the citation. Had the Respondent not challenged Officer Santinello as he did, and had he not been a member of the Town council, the citation would not have been voided. Neither Mrs. Paruas or the Respondent took responsibility for the fact that she had, in fact, parked illegally at the beach pavilion. Mrs. Paruas is not entitled to park in a handicapped zone. Members of the Town council and their spouses are not entitled to park illegally as an extra benefit of their public roles within the Town.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Ethics Commission enter a Final Order and Public Report concluding that the Respondent, Al Paruas, violated Section 112.313(6), Florida Statutes (2002). The Respondent should be subject to a public reprimand and the imposition of a civil penalty not to exceed $10,000. S DONE AND ENTERED this 29th day of July, 2005, in Tallahassee, Leon County, Florida. ___________________________________ J. D. Parrish 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 29th day of July, 2005. COPIES FURNISHED: Kaye Starling, Agency Clerk Commission on Ethics 3600 Macclay Boulevard, South, Suite 201 Post Office Drawer 15709 Tallahassee, Florida 32317-5709 Philip C. Claypool, General Counsel Commission on Ethics 3600 Macclay Boulevard, South, Suite 201 Post Office Drawer 15709 Tallahassee, Florida 32314-5709 James H. Peterson, III, Esquire Office of the Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050 James J. Birch, Esquire Law Office of Stuart R. Michelson 200 Southeast 13th Street Fort Lauderdale, Florida 33316
Findings Of Fact On September 13, 1989, petitioner, Donald Ray Ballard, filed an application with respondent, Department of State, Division of Licensing (Department) for a Class "A" private investigative agency license and Class "C" private investigator's license. Pertinent to this case, the application, which was attested to by petitioner, averred that he had never been convicted for any violation of the law. By letter of February 8, 1990, the Department timely denied petitioner's application predicated on its contention that petitioner had been convicted of four felonies on April 28, 1980, to wit: sale of cocaine, possession of cocaine, possession of a short barreled rifle, and possession of narcotics paraphernalia. Petitioner filed a timely request for formal hearing, which contested the fact that he had ever been so convicted, and the matter was referred to the Division of Administrative Hearings to conduct a hearing pursuant to Section 120.57(1), Florida Statutes. At hearing, the Department introduced into evidence certified copies of a judgment, order and commitment entered by the Circuit Court for Palm Beach County, Florida, on April 28, 1980, and bearing Case No. 79-2970 CF B 02. Those documents reflect that one Donald Ballard entered a plea of guilty to the offense of sale of cocaine (Count I), possession of cocaine (Count II), possession of a short barreled rifle (Count III), and possession of narcotics paraphernalia (Count IV). The documents further reflect that such person was found guilty on Counts I and II and that imposition of sentence was withheld, and that adjudication of guilt and imposition of sentence was withheld as to Counts III and IV. As to each count, such person was placed on probation for a period of 5 years, to run concurrently with each other, under the supervision of the Florida Department of Corrections. Petitioner denies that he and the Donald Ballard so charged and convicted are the same person. Officer Stephen Lobeck, the officer who arrested the person charged and convicted, as heretofore discussed, identified petitioner within a 90 percent degree of certainty as the same person he arrested. Melanie Eggleston, who was employed as a probation parole officer with the Florida Department of Corrections from 1980 until April 1985, positively identified petitioner as the same Donald Ballard she supervised as a probationer following his conviction for drug dealing. Given such credible identification, and the fact that the term of probation for the person she supervised was due to terminate in April 1985, it is more likely than not that the respondent is the same Donald Ballard who was convicted on April 28, 1980, as heretofore discussed. In concluding that respondent was so convicted on April 28, 1980, it has been unnecessary to consider the arrest record of the Sheriff's Office, Palm Beach County, Florida, for August 3, 1979 (Respondent's exhibit 3, page 2) or Officer Lobeck's arrest report (Respondent's exhibit 2). These documents are hearsay, as discussed supra at footnote 3, but due to the provisions of Section 120.58(1)(a), Florida Statutes, are, nevertheless, admissible in administrative proceedings to supplement or explain competent evidence. Harris v. Game and Fresh Water Fish Commission, 495 So.2d 806 (Fla. 1st DCA 1986). Here, the persuasive testimony of Officer Lobeck and Ms. Eggleston, provided competent proof of petitioner's identity as the Donald Ballard who was convicted on April 28, 1980. Were the arrest record considered, as supplementing that proof, it would be supportive of the ultimate conclusion reached. In this regard, the arrest record identifies the subject as Donald Ray Ballard; his local address as 149 Granada Drive, Palm Springs, Florida; his occupation as disabled veteran; his date of birth as December 2, 1931; his social security number as 240-40-4932; and his general description as that of a white male, height 5'7", weight 144 pounds, black hair, brown eyes, and medium complexion. Petitioner's general description is grossly consistent with the description contained in the arrest record, his residence address at the time was 149 Granada Drive, Palm Springs, Florida, and he is a disabled veteran. Further, while the identification petitioner produced at hearing referenced a date of birth of December 3, 1931, the proof also reflects that he had, on other occasions, been attributed with a date of birth of December 2, 1931. Specifically, the two DD214 forms he attached to his application to evidence his military service, as well as his transcript from Indiana Technical College, reflect a date of birth of December 2, 1931. Finally, petitioner's social security number has been variously reported as 240-40-4937 and 240-40-4937A. But for the last digit, petitioner's social security number is consistent with the social security number contained on the arrest record. 4/ On balance, the arrest record is supportive of the competent proof which identified petitioner as the Donald Ballard convicted on April 28, 1980.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered denying petitioner's application for a Class "A" private investigative agency license and Class "C" private investigator's license. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 27th day of March 1991. WILLIAM J. KENDRICK 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 27th day of March 1991.
Findings Of Fact On November 9, 1972, the State of Florida, acting through Petitioner, certified Respondent as a law enforcement officer. Certificate number 6350 was duly issued to Respondent by Petitioner. On September 10, 1984, the following occurred in Delray Beach, Florida: At approximately 12:30 a.m., Respondent was found asleep in his automobile by two Delray Beach police officers, Sergeant Stephen Barborini and Detective Thomas Tustin. Respondent was alone in the automobile. Respondent's automobile was parked in a public parking lot in the 1100 block of North Federal Highway in Delray Beach with its engine running and its headlights on. Respondent was awakened by the police officers and questioned while in the parked automobile after the engine had been turned off by Officer Barborini. Respondent was very intoxicated. Upon being questioned, Respondent produced a police badge case, without a police badge, and identified himself as a Metro-Dade Police Officer. The Delray Beach police officers advised Respondent that he was in no condition to drive and offered to either give him a ride home or to arrange other transportation for him. Respondent then got out of the car. As a result of his intoxication, Respondent was unable to maintain his balance, his eyes were bloodshot, and his speech was slurred. At times Respondent was incoherent. Respondent began to behave in an erratic manner. He shouted and yelled obscenities at the officers, he cried, and he pleaded on his knees for the officers to leave him alone. Respondent became angry with Detective Tustin while Detective Tustin was trying to calm him down. Respondent placed his hands on the person of Detective Tustin and pushed him back a couple of steps. Respondent was arrested by Officer Barborini for disorderly intoxication and taken into custody. Upon arrival at the police station, Respondent again began to shout obscenities and pushed another officer, Officer Giovani. Respondent met with the officers about two months later and apologized for his actions. Officer Barborini asked the State Attorney's Office not to prosecute because Respondent was a police officer and because Officer Barborini had been told that Respondent was seeking help for his drinking problem. The State Attorney's Office granted Officer Barborini's request. Respondent was not charged with battery because Officer Barborini and Detective Tustin thought Respondent was too intoxicated to intentionally batter Detective Tustin. On August 28, 1985, Respondent was found guilty by the Dade County Court of the charge of battery on the person of Jose Lleo. The battery occurred on February 22, 1985, while Respondent was on duty. Although Respondent was not intoxicated at the time, he had consumed alcohol before reporting to work. Following his conviction, the Court withheld adjudication of guilt and also withheld sentence. On April 3, 1986, the following occurred in Deerfield Beach, Florida: At approximately 3:35 a.m., Respondent was found asleep in his automobile by Officer John Szpindor and Officer Dale Davis of the Deerfield Beach Police Department. Respondent was alone in the automobile. Respondent's automobile was parked on the grassy shoulder of the road in the 2700 block of Southwest 10th Street with its engine running and its headlights on. The officers were able to awaken Respondent after several minutes of shaking him and talking to him. Respondent, upon being awakened, was belligerent and uncooperative. He used profanity towards the officers, calling them names and telling the officers they had no right to bother him. Respondent got out of the automobile after being instructed to do so. Respondent was very intoxicated. As a result of his intoxication, Respondent was groggy and unable to maintain his balance. His eyes were bloodshot and his speech was slurred. Respondent's pants were wet in the crotch area. The officers identified Respondent by examining a wallet, with Respondent's permission, which was lying on the seat of the car. The wallet contained an empty badge case. From examining the wallet, the officers obtained sufficient information to enable the dispatcher to contact Shirley Daniels, who was married to Respondent at that time. Mrs. Daniels was asked to come to the scene. While waiting for Mrs. Daniels to arrive on the scene, Respondent became more belligerent. His shouting grew louder and more confrontational. Despite the officers' attempts to calm him down, Respondent took off his jacket, threw it on the ground, and assumed a defensive stance as if he wanted to fight the officers. The shouting disturbed the residents of a nearby residential area. Respondent confronted Officer Davis, who had Respondent's wallet, told Officer Davis that he had no business with the wallet, and he struck Officer Davis in the chest and chin areas. The blow to the chin was a glancing blow as opposed to being a hard blow. Officer Davis was not injured. Officer Davis and Officer Szpindor immediately thereafter physically overpowered Respondent, placed him under arrest for disorderly intoxication and battery, and took him into custody. When Shirley Daniels arrived on the scene, she told the officers that she would be unable to manage Respondent at home in his intoxicated condition. Respondent was then taken to jail by the officers. There was no evidence as to the disposition of the charges of disorderly intoxication and battery. Respondent is an alcoholic and was an alcoholic at the times of the incidents described above. Prior to those incidents, Respondent had sought treatment and thought that he had successfully completed the program. Between the incident in Delray Beach and the incident in Deerfield Beach, Respondent attended Alcoholics Anonymous. Respondent continued to drink, to the extent that he suffered blackouts, because he did not immerse himself in the Alcoholics Anonymous program. During the periods Respondent maintained control of his drinking, he exhibited the qualities required of a enforcement officer. Whenever the alcoholism gained control, as was the case in the 1984 incident in Delray Beach and the 1986 incident in Deerfield Beach, Respondent lost control of himself and of his actions. As of the date of the final hearing, Respondent had abstained from alcohol for two and one-half years. For the past two and one-half years Respondent has been seriously, and successfully, involved in Alcoholics Anonymous. Respondent is a recovering alcoholic who has good moral character as long as he has control of his alcoholism. Respondent currently operates his own business as a private investigator.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is: RECOMMENDED that Petitioner, Florida Department of Law Enforcement, Criminal Justice Standards Training Commission, enter a final order which finds that Respondent failed to maintained good moral character, which places Respondent's certification on a probationary status for a period of two years and which contains as a condition of probation that Respondent abstain from the use of alcohol. DONE AND ENTERED this 18th day of August, 1989, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 18th day of August, 1989. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 89-0714 The proposed findings of fact submitted on behalf of Petitioner are addressed as follows: 1. Addressed in paragraph 1. 2-3. Addressed in paragraph 2(a). Addressed in paragraph 2(c). Addressed in paragraph 2(d). Addressed in paragraph 2(e). Addressed in paragraph 2(g). Addressed in paragraph 2(h). 9-10. Addressed in paragraph 2(i). Addressed in paragraph 3. Addressed in paragraph 12. 13-14. Addressed in paragraph 6(a). 15-16. Addressed in paragraph 6(b). Rejected as being unnecessary to the results reached. Addressed in paragraph 6(c). Addressed in paragraph 6(e). 20-22. Addressed in paragraph 6(f). Addressed in paragraph 6(g). Addressed in paragraph 6(h). The proposed findings of fact submitted on behalf of Respondent are addressed as follows: 1. Addressed in paragraph 1. 2-5. Addressed in paragraphs 2(a), (b), and (c). Addressed in paragraphs 2(f) and (g). Addressed in paragraphs 2(h) and (i). Rejected as being recitation of testimony and as being subordinate to the findings reached. Addressed in paragraph 4. 10-12. Rejected as being recitation of testimony and as being subordinate to the findings reached. 13. Addressed in paragraph 3. 14-16. Addressed in paragraph 6(a). Addressed in paragraph 6(b). Addressed in paragraph 6(e). Rejected as being recitation of testimony and as being subordinate to the findings reached. Addressed in paragraphs 6(g) and (h). 21-24. Rejected as being recitation of testimony and as being subordinate to the findings reached. 25. Addressed in paragraph 5. 26-27. Rejected as being recitation of testimony, as being unnecessary to the result reached and, in part, as being subordinate to the findings reached in paragraphs 9 and 10. 28-31. Rejected as beings recitation of testimony as being unnecessary to the result reached, and, in part, as being subordinate to the findings reached in paragraphs 7, 9, and 10. 32-36. Rejected as being recitation of testimony as being unnecessary to the result reached, and, in part, as being subordinate to the findings reached in paragraphs 8, 9, and 10. 37-38. Rejected as being unnecessary to the results reached. 40-41. Rejected as being recitation of testimony , as being unnecessary to the result reached, and, in part, as being subordinate to the findings reached in paragraphs 8, 9, and 10. 42-45. Rejected as being recitation of testimony, as being unnecessary to the results reached, and, in part, as being subordinate to the findings reached in paragraph 8. 46-49. Rejected as being recitation of testimony, as being unnecessary to the results reached, and, in part, as being subordinate to the findings reached in paragraph 8. 50. Addressed in paragraphs 1 and paragraph 11. 51-54. Rejected as being unnecessary to the results reached Addressed in paragraph 7. Addressed in paragraph 5. Rejected as being irrelevant. The purported statement of Mr. Kastrenatis is rejected as being hearsay. Addressed in paragraph 9. Rejected as being unnecessary to the results reached. COPIES FURNISHED: Joseph S. White, Esquire Assistant General Counsel Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 James C. Casey, Esquire 10680 N.W. 25th Street Suite 100 Miami, Florida 33172 Jeffrey Long, Director Department of Law Enforcement Criminal Justice Standards Training Commission Post Office Box 1489 Tallahassee, Florida 32302 James T. Moore, Commissioner Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Rodney Gaddy, General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
The Issue The issues for determination in this proceeding are whether Respondent, KaShamba Miller-Anderson, violated section 112.3145(8)(c), Florida Statutes (2016), by willfully failing to file a 2015 CE Form 1, “Statement of Financial Interests”; and, if so, what penalty should be imposed.
Findings Of Fact Respondent is currently a member of the Riviera Beach City Council. As a member of the Riviera Beach City Council, Respondent served as a “local officer” as defined in section 112.3145(1)(a), throughout the year 2015. Respondent was aware that she was required to file a CE Form 1 every year, including for the year 2015. Financial disclosures are filed in order to allow the public to monitor public officials and employees for any conflicts of interest that may arise. The requirement that financial disclosures be filed is intended to deter corruption and increase the public’s confidence in government. In 2016, Respondent received e-mails at the address kmiller@rivierabch.com. She received regular mail at the address 430 West 28th Street, Riviera Beach, Florida 33404. The CE Form 1, “Statement of Financial Interests,” for calendar year 2015 was required to be filed on or before July 1, 2016. There is a grace period for filing the form that expired on September 1, 2016. After the expiration of the grace period, an automatic fine of $25 per day was imposed for each day the form is late, up to a maximum fine of $1,500. The maximum fine accrued on October 31, 2016. The Palm Beach County Supervisor of Elections (Palm Beach SOE) office sent Respondent the original blank 2015 financial disclosure form, along with the requirements for filing the form, before June 1, 2016. She was instructed to file her completed form no later than July 1, 2016. Respondent failed to file her 2015 CE Form 1 by either July 1, 2016, or September 1, 2016. Respondent received notice from the Commission regarding her failure to file her 2015 CE Form 1. On July 31, 2016, the Palm Beach SOE sent a delinquency memorandum to Respondent at 430 West 28th Street, Riviera Beach, Florida 33404 by certified mail. The mail was unclaimed. The July 31, 2016, memorandum included the following statement: Pursuant to State law, please be advised that although you are delinquent in filing Form 1, a grace period is in effect until September 1, 2016. If your form is not received by September 1, 2016, we will be required by law to notify the Commission on Ethics of the delinquency. A fine of $25 for each day late will be imposed, up to the maximum penalty of $1500. In addition, pursuant to enacted legislation, the Commission on Ethics must initiate investigations of delinquent filers in certain circumstances. This can result in you being removed from your public office or employment. Respondent took no action to file her form by September 1, 2016. If she had done so, it would have been considered timely. Commission staff sent Respondent a courtesy letter on September 7, 2016, and advised her that she was accruing a fine of $25 per day for failure to file her 2015 CE Form 1. The Commission also e-mailed Respondent on September 20, 2016, using the e-mail address kmiller@rivierabch.com. Respondent accrued the maximum fine of $1,500 as of October 31, 2016, as authorized by section 112.3145(7)(f), for failing to file her CE Form 1 for the year 2015. On November 4, 2016, the Commission again e-mailed Respondent at the same e-mail address, advising her that the maximum fine had accrued and she still needed to file her 2015 CE Form 1. The November 4, 2016, e-mail attached a blank 2015 CE Form 1 and a form to appeal her fine. Respondent did not avail herself of the opportunity to appeal the fine that had accrued. On February 21, 2017, the Commission sent Respondent a Notice of Assessment of Automatic Fine by certified mail, using the 430 West 28th Street address. Respondent acknowledged receipt of the February 2017 notice. This e-mail also provided the appeal process for contesting the maximum fine. Respondent did not pay the fine at that time because she did not have the funds to do so. She believed, in error, that she now could not file the 2015 CE Form 1 until she paid the fine. Her belief, however misplaced, was sincere. On June 16, 2017, the Commission mailed Respondent a Notification of Issuance of Default Final Order at the 430 West 28th Street address. The Notice was not returned to the Commission as undeliverable. On June 22, 2017, Respondent paid the $1,500 fine. On June 28, 2017, Respondent filed her CE Form 1 for calendar year 2015. Respondent did not have a particularly compelling reason for not timely filing her 2015 CE Form 1. Her position on the city council is a part-time position, for which she is not assigned an assistant. She admitted at hearing that the notice and the form simply got lost on her desk, and she did not make it a priority. However, Respondent claims that while filing her 2015 CE Form 1 was not the priority it should have been, she never intended not to file the form, and she never indicated to anyone that she would not do so. Respondent filed her 2015 CE Form 1 and paid the fine prior to the finding of probable cause in this case. There are some differences between the financial disclosure Respondent filed when she initially ran for office and the one filed for 2015. Those differences however, are not so great as to support an inference or finding that she was attempting to hide something by not filing timely. The term for which Respondent was elected expired on March 21, 2018. She was re-elected for another term which began March 21, 2018.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Ethics enter a final order and public report finding that no violation of section 112.3145(8)(c) has been demonstrated. DONE AND ENTERED this 7th day of June, 2018, 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 7th day of June, 2018. COPIES FURNISHED: 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) Ronald G. Meyer, Esquire Meyer, Brooks, Demma and Blohm, P.A. 131 North Gadsden Street (32301) Post Office Box 1547 Tallahassee, Florida 32302 (eServed) C. Christopher Anderson, III, General Counsel Florida Commission on Ethics Post Office Drawer 15709 Tallahassee, Florida 32317-5709 (eServed) Virlindia Doss, Executive Director Florida Commission on Ethics Post Office Drawer 15709 Tallahassee, Florida 32317-5709 (eServed)
The Issue The issues in this instance are promoted in keeping with an administrative complaint brought by the Petitioner against the Respondent, charging violations of Sections 943.13 and 943.145, Florida Statutes. These allegations relate to the claim that Respondent was involved in a liaison with a prostitute in which he exchanged Valium for sex. The encounter between the Respondent and the prostitute is alleged to have occurred while the Respondent was on duty. This Valium was allegedly obtained from an automobile which was examined as part of the Respondent's duties as a law enforcement officer. It is further alleged that the Valium should have been turned in as part of his responsibilities as a law enforcement officer.
Findings Of Fact Respondent is a holder of a certificate as law enforcement officer, Certificate No. 98-10527. That certificate is issued by the State of Florida, Department of Law Enforcement, Criminal Justice Standards and Training Commission, and Respondent has held that certificate at all relevant times in this proceeding. Respondent has been employed as a police officer by the Daytona Beach, Florida, Police Department in the relevant time period and it was during that tenure that Respondent is accused of having committed the offense as set forth in the administrative complaint. Debbie Ofiara is the only witness to the Respondent's alleged indiscretion while on duty. Ms. Ofiara is an admitted prostitute, who has drug problems so severe that she required specific program treatment to address them. In particular, that drug difficulty relates to the drug Dilaudid. In addition, Ofiara has served six months in jail for grand theft, a felony conviction. At the time of the alleged incident with the Respondent she was under the influence of drugs and was under the influence of drugs when she reported that incident to a police investigator in the Daytona Beach Police Department. When testimony was given at the hearing, Ofiara was attending a drug program while awaiting a sentence for a drug offense related to cocaine. She had pled guilty to that drug charge, a felony. Ofiara has been arrested for prostitution, arrests made by the Daytona Beach Police Department on three different occasions. She had been arrested for hitchhiking by Officer Cadenhead prior to the incident which underlies the administrative charges and indicates that she "took offense" at the arrest. Moreover, she acknowledges some past concern about her treatment in encounters with Officer Gary Gallion of the Daytona Beach Police Department in his official capacity. Ms. Ofiara claims that sometime in November 1982, in the evening hours, the Respondent, while on duty as a police officer, in uniform and driving a marked patrol car, approached Ofiara and made arrangements to meet her. She further states that this rendezvous occurred in Daytona Beach, Florida, and that in exchange for Valium tablets which the Respondent had obtained from an examination of a car he had been involved with in his police duties, which tablets were not turned in, Ofiara performed oral sex for Respondent's benefit. Some time later, Ofiara related the facts of the encounter with Officer Cadenhead to an internal affairs investigator with the Daytona Beach Police Department, Lieutenant Thomas G. Galloway. She also gave Galloway a bottle which she claimed was the bottle in which the Valium was found. The vial or container was not examined for any residue of the substance Valium or examined for fingerprints of the Respondent. Following Galloway's investigation of the allegations, the Daytona Beach Police Department determined to terminate the Respondent from his employment. That termination was effective February 11, 1983. Respondent was subsequently reinstated after service of a four-week suspension without pay by order of the City of Daytona Beach Civil Service Board, effective March 9, 1983. Having considered the testimony of Ms. Ofiara and the testimony of the Respondent in which he denies the incident with her, and there being no corroboration, Ms. Ofiara's testimony is rejected for reasons of credibility. As a prostitute, drug user, felon and person with a certain quality of animosity toward the Respondent and in consideration of the demeanor of the accusing witness and Respondent, her testimony is rejected.
The Issue The issues are whether Respondent violated section 112.313(6), Florida Statutes (2018), by exhibiting inappropriate behavior toward city staff; and, if so, what is the appropriate penalty.
Findings Of Fact Respondent served as a city commissioner of Madeira Beach from 2007 through March 2013, and was reelected to the office in March 2017. Shane Crawford served as the city manager of Madeira Beach from January 2012 through July 2017. Cheryl McGrady Crawford served as a full-time employee of Madeira Beach in different capacities: intern for the planning and zoning coordinator; in the building department; and city clerk. In addition, she served as the executive assistant to then-City Manager Shane Crawford from September 2012 through February 2017, where her job responsibilities included acting as deputy clerk when the city clerk was unable to attend a function or meeting. David Marsicano has been serving as Madeira Beach’s public works and marina director for 17 years. Travis Palladeno served as the mayor of Madeira Beach from 2011 through 2017. Terry Lister served as a city commissioner of Madeira Beach from 2008 through 2018. Francine Jackson was a Madeira Beach employee for approximately 11 years. Her last position was as the assistant to Public Works Director Marsicano from 2012 through 2014. Thomas Verdensky is the president of the Old Salt Foundation, which is a volunteer organization. Joseph Campagnola is a retired 13-year New York City police officer who has volunteered as head of security (coordinates sheriff’s department and personal guards) for Old Salt Foundation events for the past nine years. Nicole Bredenberg was present at the November 3, 2012, Madeira Beach City Commission (“City Commission”) meeting. Respondent is subject to the requirements of chapter 112, part III, the Code of Ethics for Public Officers and Employees, for her acts and omissions during her tenure as a city commissioner of Madeira Beach. See § 112.313(6), Fla. Stat. and City Charter Section 2-31 Duties and Responsibilities. As a city commissioner of Madeira Beach, Respondent took an oath “to faithfully perform the duties of [her] office and the Constitution of [sic] the laws of the State of Florida and the United States of America.” As a city commissioner of Madeira Beach, Respondent was prohibited from interfering with administration as provided: “The Board of Commissioners nor any member thereof shall give orders to any subordinate or Officer of said City, either publicly or privately, directly or indirectly.” As a city commissioner, Respondent’s responsibilities included attending City Commission meetings, regular or special. At the City Commission meetings, the city clerk is responsible for taking the meeting minutes. If the city clerk is unavailable, a substitute is needed or the meeting cannot be held. Mr. Palladeno told the new Madeira Beach city manager, Shane Crawford, that he wanted an outdoor meeting since they are a beach community. In November 2012, an outdoor City Commission meeting was held in conjunction with the King of the Beach Tournament, a fishing tournament occurring biannually in Madeira Beach. The meeting was to recognize Bimini, Bahamas, as Madeira Beach’s sister city with a presentation of a key to the city and a proclamation. The King of the Beach Tournament is organized by the Old Salt Fishing Foundation. The event was held on a baseball field having field lights, which turned on as it started to get dark. Respondent was present at this event in her official capacity to participate in the meeting. She had consumed alcohol at the all-day fishing tournament. Then-city clerk, Aimee Servedio, could not attend this meeting, so a substitute was required or the meeting could not go forward. Ms. McGrady (prior to her becoming Ms. Crawford) had been assigned the role of deputy clerk and was prepared to take minutes. Respondent dislikes Ms. Crawford because she believed, without any proof produced at hearing and a firm denial at hearing by Ms. Crawford, that she and Shane Crawford were having an affair at the time of the meeting at issue, which was prior to their marriage. The City Commission could not start the meeting the evening after the tournament because Respondent refused to go on stage due to Ms. McGrady’s role as deputy clerk. There was a heated discussion between Shane Crawford, Ms. McGrady, and Respondent. Respondent actually refused to attend the meeting if Ms. McGrady was present, and demanded that she be removed from the area. Mr. Palladeno and an official Bimini representative were in the vicinity of the heated discussion. Referring to Ms. McGrady, and in her presence, Mr. Palladeno heard Respondent say, “You need to get that f[***]ing b[itch] out of here.” Mr. Palladeno rushed in to move the Bimini representative away from the situation. Lynn Rosetti, who at that time was the planning and zoning director, had to fill in because Respondent refused to attend the meeting if city employee, Ms. McGrady, was allowed to substitute for the city clerk. Respondent’s actions interfered with Ms. McGrady’s job duties. After the meeting was over, Respondent approached Shane Crawford with Ms. McGrady, David Marsicano and his then- wife Shelley, and Nicole Bredenberg also in the immediate area. Using her tongue, Respondent licked City Manager Shane Crawford up the side of his neck and face. This act was witnessed by Ms. McGrady, Mr. Marsicano, Mr. Bredenberg, and Mr. Verdensky. Respondent then groped City Manager Shane Crawford by grabbing his penis and buttocks. This act was witnessed by Ms. McGrady and Mr. Bredenberg. Respondent then threw a punch at Ms. McGrady after she told Respondent that her actions were inappropriate. Mr. Marsicano’s ex-wife intervened and confronted Respondent. Mr. Verdensky, who testified that he had been licked by Respondent on a different occasion, called for the head of security, Joseph Campagnola. Mr. Campagnola arrived between one to two minutes after the call. By the time he arrived, Respondent was walking away. However, he found Shane Crawford, Ms. McGrady, and Ms. Marsicano. He was told by Mr. Crawford that Respondent licked his face and grabbed him, which was corroborated by Mr. Marsicano and Ms. McGrady. Mr. Marsicano, who testified he had also been licked by Respondent on a different occasion, has a distinct memory of Respondent’s actions at the November 2012 City Commission meeting because of the “disruptions and shenanigans” that happened before, during, and after the meeting. He had to lead his wife away because she was so upset with Respondent. Mr. Marsicano also testified that he witnessed the face-licking of Mr. Crawford by Respondent. He subsequently spoke with Francine Jackson about what happened at that meeting. Ms. Jackson was not present for the November 2012 City Commission meeting. However, that following Monday or Tuesday, she discussed the weekend with Mr. Marsicano and was informed by him that Respondent licked Mr. Crawford’s face. Ms. McGrady was placed in a predicament when Respondent’s animosity towards her became overt and physical. Respondent created a hostile environment and employees were rightfully fearful of retaliation if they reported Respondent’s actions. Robin Vander Velde is a former city commissioner of Madeira Beach and has known Respondent since 2007. Ms. Vander Velde was outraged about an ethics complaint being filed against her very good friend of ten years. Present in her capacity as a city commissioner at the November 2012 meeting, her recollection of the events was foggy, at best. Ron Little is Respondent’s best friend of 20 years and Ms. Vander Velde’s boyfriend. He honestly acknowledged that it is a given that he would want to help Respondent. Mr. Little was unaware of Respondent’s Driving under the Influence (“DUI”) arrest, petit theft arrest, alleged participation in a United States Postal Service (“USPS”) mail hoax, and the reasons why she left her City of Clearwater employment. Elaine Poe is a former city commissioner of Madeira Beach. Ms. Poe was unaware of Respondent’s petit theft arrest, alleged participation in a USPS mail hoax, and why she left her City of Clearwater employment. While Ms. Poe was at the November 2012 meeting, she did not recall the meeting starting late. Jim Madden is a former city manager of Madeira Beach. He was also unaware of Respondent’s petit theft arrest and alleged participation in a USPS mail hoax. Doreen Moore was unaware of Respondent’s petit theft arrest and alleged participation in a USPS mail hoax. Linda Hein met Respondent in 2016. She was unaware of Respondent’s petit theft arrest. Originally, Ms. Hein did not remember attending the November 2012 meeting until her memory was refreshed; regardless, she could not provide eyewitness testimony concerning the alleged licking incident. Michael Maximo, is the former Madeira Beach community services director. He testified he had been licked by Respondent on a different occasion, during the soft opening of a Bubba Gump’s Restaurant in John’s Pass Village. He recalled the details of the specific incident and said Respondent was inebriated at the time, and she came over to him and licked his face and neck in the presence of her husband, who quickly escorted her from the building. Mr. Maximo refuted the testimony of Respondent’s witnesses as his knowledge of Respondent’s reputation in the community was as a “fall down drunk,” who should not be representing the community. This was a different picture from the one painted by Respondent’s friends who, while admitting she liked to have a drink or several with them and others, they could not imagine her licking someone in public.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Ethics enter a final order finding that Respondent, Nancy Oakley, violated section 112.313(6), Florida Statutes, and imposing a public censure and reprimand and a civil penalty of $5,000. DONE AND ENTERED this 7th day of December, 2018, in Tallahassee, Leon County, Florida. S ROBERT S. COHEN 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 7th day of December, 2018. COPIES FURNISHED: Kennan George Dandar, Esquire Dandar & Dandar, P.A. Post Office Box 24597 Tampa, Florida 33623 (eServed) Melody A. Hadley, Esquire Office of the Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050 (eServed) Elizabeth A. Miller, Esquire Office of the Attorney General Plaza Level 01, The Capitol Tallahassee, Florida 32399 (eServed) Millie Fulford, Agency Clerk 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) Virlindia Doss, Executive Director Florida Commission on Ethics Post Office Drawer 15709 Tallahassee, Florida 32317-5709 (eServed)
Findings Of Fact Respondent held a certificate as a law enforcement officer from June 15, 1979 through October 1, 1983. This certificate is currently inactive. At all times relevant herein, Respondent was employed in a law enforcement capacity with the Pompano Beach Police Department. On October 2, 1981, Respondent, who is black, filed a memo with the Chief of the Pompano Beach Police Department, alleging harassment of black officers and mistreatment of prisoners by police supervisors. Respondent also described an alleged beating by police in an incident which occurred on June 8, 1981. The June 8 incident came to Respondent's attention weeks later in a casual conversation with a Mr. Phillip Robinson who had witnessed the incident and described it to Respondent. Respondent, in turn, reviewed the files and found no "use of force" report which led him to conclude that the incident had been covered-up. At Respondent's urging, Robinson came forward and gave his statement to the Pompano Beach Police Department regarding this incident. An investigation of this incident and Respondent's other allegations was conducted by the department. Their findings and conclusions differed substantially from those of Respondent. Contrary to Respondent's contention, a use of force report had been filed. Also, Robinson did not actually see the police strike the detainee on the head nor did he observe six blows as related by Respondent. It must be recognized that Respondent was urging an investigation and did not intentionally misrepresent facts which he himself sought to have determined through such investigation. However, Respondent's accusations of police brutality, official cover up, and racial harassment were at best premature, where, as with the June 8 incident, he was neither a witness nor the designated investigator. The second incident on which evidence was presented arose when Respondent reported for reassignment as a "teleserve officer" on December 27, 1982. Respondent had been contacted at home and verbally told to report to Captain Sullivan at 11:00 a.m. for the new assignment. Sullivan observed Respondent outside his office shortly after 11:00 a.m. and directed him to come into the office to discuss his new duties. Respondent refused to come in stating that he had to go to the bathroom. Shortly thereafter he did return and enter Sullivans' office. An argument which involved shouting heard by other employees ensued, and Sullivan thereupon suspended Respondent and temporarily relieved him of duties. Respondent was in a guarded state of mind when he reported to Captain Sullivan. He had previously been under psychological evaluation on order of the department and had only three days previously filed several memos accusing police officials of racial harassment and requesting an investigation. Without Sullivan's knowledge, Respondent recorded that portion of the conversation which took place inside Sullivan's office. A transcript of this conversation revealed that Respondent was prepared to accept his new assignment, but believed that it was a desk job created to harass him. Respondent made several accusations of harassment which apparently angered Sullivan, resulting in a loud and angry exchange. Respondent established through the testimony of the former city personnel director and coworkers at the Pompano Beach Police Department that he was targeted for firing by police supervisors who wanted to get rid of him. This testimony also established that Respondent was a capable patrolman who had been commended for outstanding police work by both the department and members of the public.
Recommendation Based on the foregoing, it is RECOMMENDED that Petitioner enter a Final Order dismissing the charges contained in its Administrative Complaint. DONE and ENTERED this 26th day of November, 1984, in Tallahassee, Florida. R. T. CARPENTER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 26th day of November, 1984. COPIES FURNISHED: Dennis S. Valente, Esquire Charles T. Whitelock, Esquire Department of Law WHITELOCK and MOLDOF Enforcement 1311 Southeast Second Avenue Post Office Box 1489 Ft. Lauderdale, Florida 33316 Tallahassee, Florida 32302 Robert R. Dempsey, Executive Director Department of Law Enforcement Post Office Box 12489 Tallahassee, Florida 32302
