The Issue The nature of the controversy is set forth in the Order Finding Probable Cause issued by the Commission on Ethics (the "Commission") on September 16, 2015, which specifically alleged that Respondent, City Attorney, code enforcement special magistrate, or special or backup counsel for the City of North Port, violated sections 112.313(3), 112.313(6), 112.313(7)(a), and 112.313(16), Florida Statutes: [B]y providing counsel and recommendations to the City Commission regarding the adoption of local Ordinance 2014-29 requiring the appointment of a Zoning Hearing Officer and encouraging the City Commission to amend Part II, Chapter 2, Article IX, of the City Code to replace the Code Enforcement Board with a Code Enforcement Special Magistrate and offering himself for consideration for the position of Zoning Hearing Officer as well as Code Enforcement Special Magistrate. The issue is whether Respondent violated these provisions of the Code of Ethics for Public Officers and Employees as alleged in the Order Finding Probable Cause, and, if so, what penalty is appropriate.
Findings Of Fact The City of North Port ("City") is an incorporated municipality, created by the Florida Legislature in 1959, and located in Sarasota County. Its electorate approved a revised charter in 1988. Subsequent amendments to the Charter were approved throughout the years, with the most recent amendment occurring in 2014. Article XIV, concerning the City Attorney, has never been amended. The City's form of government is Commission-Manager. The City Commission consists of five elected City Commissioners. The City Commissioners elect the Mayor, who serves as presiding officer of the City Commission, and who is elected by majority vote of the City Commissioners. The Mayor is "responsible to see that all laws, provisions of [the] Charter and acts of the [City] Commission are faithfully executed; [to] sign on behalf of the City all intergovernmental agreements . . . and any other official documents." The Charter establishes the separation of powers between the executive and legislative branches of the City. The Charter requires the City Commission to appoint the City Manager who serves as the chief administrative officer. The Charter empowers the City Manager to supervise the daily administrative duties and all non-charter employees, make City personnel decisions, represent the City in contract negotiations, sign contracts on behalf of the City, enforce agreements, and perform numerous other duties. The City Commissioners may not interfere with the selection of the personnel of the City Manager's subordinates, nor give orders to City personnel. The Charter establishes the City Manager, City Clerk, and City Attorney. The Charter specifies that the City Clerk and City Attorney are offices that the City Commission cannot abolish. The Charter provides for the office of City Attorney and assigns various duties to the position. As indicated in section 1.03 of the Charter, "reference to any office or officer includes any person authorized by law to perform the duties of such office." The functions of City Attorney include: attending all meetings; advising the City Commission as to its compliance with the Charter and Florida law; being the legal advisor and counselor for all departments; preparing and reviewing contracts, legal and official instruments; and endorsing each legal contract as to form and correctness. The Charter states that "[n]o legal document with [the] Municipality shall take effect until his approval is so endorsed thereon." Respondent provided legal services to the City of North Port from 2001 until August of 2014. From 2001 to 2006, Respondent was a partner in the Bowman, George, Scheb & Robinson law firm which had a contract to provide legal services to the City. The firm was designated the City Attorney for the City. In 2006, simultaneously with the renewal of the Bowman George contract, Respondent moved his practice to the Nelson Hesse law firm, in which he was a partner. From 2006 until August 2012, the Nelson Hesse law firm had a contract to provide legal services to the City. The firm was designated as the City Attorney. In each instance, the City contracted with a law firm, and not a specific individual, to serve as the City Attorney. From 2001 through August 2012, Respondent, as a member of a contracted law firm, performed the duties and responsibilities of the City Attorney as outlined in the City Charter and as provided in the contracts between the City and the Bowman George firm and the Nelson Hesse firm. In 2011, the City Commission began discussing alternatives to the way legal services were provided due to concerns with the City's rising costs for legal fees. In the spring of 2012, the City issued a Request for Proposals (RFP) which sought "proposals from experienced and qualified law firms to provide a full range of municipal legal services serving as the City's legal counsel on a contractual basis." Respondent played no role in developing the RFP or participating in any discussions concerning the RFP because he believed it "would prohibit [his] submission of a proposal to that RFP." Commissioner Linda Yates testified that Respondent said he could not participate in the creation or discussions of the RFP due to ethical issues. Throughout the RFP process, Jonathan R. Lewis served as City Manager. He had been appointed by the City Commission and acts as chief administrative officer. In addition to his various duties, he is responsible for the hiring and firing of City personnel, representing the City in contract negotiations, and signing all contracts, agreements, and applications for the City after approval by the City Commission. Mr. Lewis signed a contract with Suzanne D'Agresta to provide legal advice and counsel to the City Commission during the RFP process since Respondent removed himself from the process as he intended to submit a proposal on behalf of his firm. RFP applicants were advised in writing that "[t]he City Attorney is appointed by the [City] Commission, serves as a Charter officer, and performs duties and responsibilities pursuant to the Charter of the City of North Port section 14.05 and the general law of the State of Florida." Other specialty legal services, such as bond work and pension issues, are outsourced. Minimum qualifications for the position included seven years' experience in Florida municipal law, and licensure by and good standing with The Florida Bar. The Nelson Hesse firm, partnering with the Lewis, Longman & Walker law firm, submitted a response to the RFP. Three other firms submitted responses to the RFP. After an interview process, the Nelson Hesse firm was ranked first by three of five members of the City Commission and the general consensus was that the firm was the most qualified applicant. The City and the Nelson Hesse firm then negotiated the terms of an agreement for legal services that were subsequently presented to the City Commission for approval. On August 15, 2012, the City of North Port approved the Agreement for Legal Services with the Nelson Hesse firm whereby the City employed, engaged, and hired "the Firm to serve as and to perform the duties and responsibilities of City Attorney pursuant to Request for Proposal No. 2012-21." The Agreement stated: The Firm designates and the City accepts Robert K. Robinson as the primary attorney for City legal work. Mr. Robinson may utilize the services of other attorneys and staff in the Firm and [Lewis, Longman and Walker] as he deems appropriate for City legal work. The Agreement, which commenced on September 1, 2012, was for a term of two years and could be renewed for one additional term of one year. The Agreement further provided: The Firm shall serve as the City Attorney who shall act as legal advisor to, and attorney and counselor for, the City and all of its officers in matters relating to their official duties. On September 10, 2012, the City Commission voted four- to-one to approve Nelson Hesse and Respondent to provide legal services to the City Commission. Commissioner Yates was the lone dissenter citing numerous reasons for her "no" vote. Nelson Hesse's compensation was fixed by contract as required by the Charter. A monthly retainer was set at $28,333.33 to cover a maximum of 2,400 hours, and the rate was fixed at $170 for "Hourly Legal Services." Expenses, including travel within the county, were to be billed to the City. The Office of City Attorney was budgeted through "Charter and Executive Services," and in FY 2012 the legal department had a budget of $776,000. Respondent was required to submit his projected budget annually. Respondent had office space for his use at City Hall. Unlike the contract with Ms. D'Agresta, which was signed by City Manager Lewis, Respondent's Agreement was signed by then-City Commission Chair Tom Jones. This indicates that Respondent or his firm was a Charter officer serving under the City Commission, and not a non-charter independent contractor serving under the City Manager on a temporary basis when Respondent and his firm recused themselves from any involvement with the RFP since they intended to submit a proposal. The Agreement reiterated and expanded the duties and powers enumerated in the Charter and provided that Respondent may not assign the Agreement without prior written consent of the City Commission. Respondent, as an individual, believes he was never appointed City Attorney by majority vote of the City Commission nor was he elected to that position. Respondent was also not an employee of the City. His firm, Nelson Hesse, in which he was a partner, served as City Attorney. From the evidence, this appears true even though the Charter refers to the City Attorney as "he or she." Following the November 2012 election of two new commissioners, the City began the process of transitioning from the use of a firm to serve as the City Attorney to the appointment of an individual to serve as the City Attorney. This process, which involved a series of meetings and workshops, included a review of all legal services for the City and eventually led to a decision to retain a consultant to conduct a search for an individual to serve as City Attorney. This process, in turn, led to the appointment of Mark Moriarty as the City Attorney by majority vote of the City Commission. Mr. Moriarty began his employment as the City Attorney on or about September 15, 2014. Well prior to Mr. Moriarty's start as City Attorney, at the June 9, 2014, City Commission meeting, at Vice-Mayor Rhonda DiFranco's request, Respondent, on behalf of his firm, Nelson Hesse, submitted a "Letter of Engagement," that he drafted, to the City Commission for approval. Since the 2012 Agreement with Nelson Hesse was going to expire on August 31, 2014, Respondent sought to provide the City with a "safety net" to ensure it would be covered for legal services until Mr. Moriarty was in place and the City had no need for further services from Nelson Hesse. The Letter of Engagement would allow Respondent, through his firm, to continue to provide advice and representation beginning September 1, 2014, as the backup attorney to the new in-house counsel, Mr. Moriarty. Additionally, the Letter of Engagement specified Respondent would "provide advice and representation to the City on zoning . . . [and as] code enforcement hearing officer." The Letter of Engagement included a higher hourly fee than the previous Agreement with the City ($275 versus $170). The reason given for the higher hourly fee was that Respondent could not ascertain how many hours, if any, his firm would work under the new arrangement and, therefore, could not offer a volume discount for his time. Nothing in the June 9 Engagement Letter required the City to use Nelson Hesse for any future work. The testimony as to Respondent's motive for placing the June 9 letter before the City Commission was disputed by the parties. Respondent was not representing a private individual or entity before the City Commission at the meeting. If he was representing anyone, he believes he was representing the City. He took no action to impede or frustrate the City Commission's move to an appointed City Attorney. If anything, the evidence suggests Respondent assisted the City in its search for an in- house City Attorney by recommending a search firm, and by speaking positively about the transition to the in-house situation. Because Mr. Moriarty was not going to assume his new position until September 15, 2014, the City Manager was authorized to enter into an interim agreement for legal services with Respondent's firm to cover the two-week period between the expiration of the prior Legal Agreement with Nelson Hesse and Mr. Moriarty's start date. Consistent with that new agreement, Respondent attended and provided legal services to the City Commission at its September 8, 2014, meeting. At this meeting, his firm was no longer the City Attorney, but was a contract attorney providing services during the interim period between City Attorneys. The Advocate's take on the post-City Attorney plans of Respondent was quite different. The argument was made that Respondent's June 9 letter was designed to hire Respondent's firm at an increased rate of $275 per hour, plus to make Respondent the Zoning Hearing Officer and Code Enforcement Special Magistrate. The Charter requires reading of a proposed ordinance at two separate public City Commission meetings at least one week apart. On the second and final reading, the proposed ordinance is offered for adoption. If adopted, it becomes local law on its effective date. Respondent, as City Attorney, supervised the drafting of Ordinance 2014-29 to create the position of Zoning Hearing Officer for zoning appeals and variance matters, effective September 1, 2014. The Zoning Hearing Officer was to be hired and could be terminated by the City Commission, which also would supervise the position. Ordinance 2014-29 was presented to the City Commission for first reading at the July 14, 2014, City Commission meeting. Respondent explained the ordinance to the commissioners and legally advised them on the document. The second reading took place at the City Commission's July 28, 2014, meeting. Again, Respondent offered legal advice to the commissioners about the ordinance's effects. Respondent suggested that an appointment needed to be made that night, effective September 1, 2014, the day after his Legal Agreement expired. He offered his services and responded "yes" to a question from City Commissioner Yates regarding whether a decision should be made that night. Respondent provided no other options other than to appoint him immediately. Other options may have been available since it was "the norm" (Respondent's words) for City Manager Lewis to contract with attorneys from a variety of law firms for services without undertaking the competitive solicitation process when specialty legal services were needed. Respondent himself could have called an experienced attorney to handle the pending petition. Instead, Respondent informed the City Commission it was not his responsibility to provide other options to the City Commission. When asked how he would be ready to go with this on September 1, 2014, Respondent said he would "take off [his] city attorney hat" and on September 1 "put on the zoning officer appeals hat." He made clear to the City Commissioners that he was "uniquely qualified" for the position, therefore no others need be considered in his opinion. With no other options before them and having been advised of the urgency of making the appointment, the City Commission appointed Respondent to serve a four-year term by a four-to-one vote (Commissioner Yates being the lone dissenter). Respondent served in the position of Zoning Hearing Officer from September 1 through September 19, 2014. He earned $1,453.50 for 5.5 hours worked ($264.27 per hour). Respondent's 2012 Agreement did not provide he could serve as Zoning Hearing Officer. Respondent drafted the June 9, 2014, Letter of Engagement allowing him to serve as Zoning Hearing Officer. As Zoning Hearing Officer, Respondent served at the pleasure of the City Commission and could be removed with or without cause by a majority of the City Commissioners. Respondent had the power to take testimony under oath and compel attendance of witnesses. He could not engage in any "ex-parte" communications with City Commissioners while serving as Zoning Hearing Officer because he was serving as a neutral arbitrator in a quasi-judicial position adjudicating controversies between two parties: the City and property owners. Respondent could not serve as backup legal advisor to the City from September 1 through 14, 2014, if at the same time he was serving as Zoning Hearing Officer since he was supposed to be in a neutral and, therefore, independent position. Ordinance 2014-30 amended the City Code to abolish the seven-member Code Enforcement Board and create one Code Enforcement Special Magistrate ("Special Magistrate") position, effective October 1, 2014. The Special Magistrate was to be hired by and could be terminated by the City Commission upon a majority vote. That ordinance was presented to the City Commission for first reading on July 28, 2014. Respondent advised the City Commissioners that the ordinance created a special magistrate position, and informed the City Commissioners he would work on the details for the position in September and October 2014, a period of time covered by the June 9 Letter of Engagement, but not the 2012 Legal Services Agreement. Respondent admitted he drafted the June 9 Letter of Engagement so that he could assume the special magistrate position himself. After advising the City Commission on the effects of the ordinance as their attorney, Respondent offered himself for consideration for the not-yet-existent position and was appointed on a four-to-one vote of the City Commissioners to a two-year term beginning October 1, 2014. Like the Zoning Hearing Officer, the Special Magistrate serves as a neutral arbitrator in a quasi-judicial position that adjudicates controversies between two parties: the City and the property owner or alleged violator. Respondent attended ethics classes taught by Chris Anderson, attorney for the Commission on Ethics. Respondent denied he had a conflict of interest because in his view a violation would occur by "the attorney getting up out of his chair and going down in front of the commission and representing John Q. Public or John Q. Developer with regard to matters that are appearing before the city commission. That was not the case with me." Respondent's term as City Attorney ended on August 31, 2014. On August 28, 2014, City Manager Lewis requested authorization from the City Commission to hire Respondent to provide legal services from September 1 through 15, because the new in-house City Attorney would not begin until September 15, 2014. At the next regularly scheduled meeting of the City Commission on September 8, 2014, Ordinance 2014-30 was read a second time and voted for adoption. Respondent attended the meeting as the City Commission's legal advisor. Mayor Blucher introduced him as the "City Attorney" and quickly realized his error and corrected himself to announce Respondent's new title as "attorney for the City." Respondent replied, "Careful." This was apparently the only time Respondent reacted when he was identified as the appointed City Attorney. Although he claims his firm is the entity that contracted with the City to provide legal services, his silence is an admission he considered himself at least to be the de facto City Attorney or appointed public officer. City Commissioner Yates strongly objected every time Respondent's name was presented for the position of interim attorney for the City (for the September 1 through 14 period), Zoning Hearing Officer, or Special Magistrate. In each instance, she asked the City Commission to delay the vote until the new in- house City Attorney came on board so that he could have some input into the decision. She was outvoted four-to-one each time. Municipal governments utilize three typical arrangements for procuring legal services: 1) an in-house attorney who is directly on the government payroll; 2) an attorney in private practice whose firm (or the individual attorney) is retained through a contractual relationship under which the attorney remains employed by his/her firm; and 3) an attorney who practices in a specialized area who is retained on an as-needed basis through contract. Respondent's work for the City fits into the second category of lawyers retained to perform City business. In this matter, Respondent was considered by the City as a Charter Officer holding a public office. According to the RFP, the City sought a City Attorney as contemplated by its Charter when it appointed Respondent for the office. Respondent held himself out as the City Attorney to the Florida Attorney General when requesting legal opinions, to the public on his website, and to the Commission when filing his Form 1, "Statement of Financial Interests" (which also identifies him as an employee of his firm, Nelson Hesse). Respondent has never corrected the suggestion that he is City Attorney. His name appears as the appointed City Attorney on the City's official letterhead, and his picture hangs in City Hall with the other City officers. In City Hall, the name plate below his picture identifies him as the City Attorney and Charter Officer. The official minutes of each City Commission meeting held during his tenure indicate Respondent is the appointed City Attorney. Respondent admitted, when asked at hearing, that the Charter contemplates that a person, not an entity, will be the City Attorney. Respondent denies that he was "appointed" to the position of City Attorney, yet he did not correct Commissioner Blucher when he said during a meeting, "we elected him as a city attorney." City Commissioner Yates, also testifying at the hearing, believes the City Commission approved Respondent as the City Attorney. The City Charter does not require the City Attorney to take an oath of office and, although City Commissioner Yates does not recall whether Respondent did, she testified she expected he would have taken an oath as a matter of course. Respondent's current denial of any violations of chapter 112, Florida Statutes, and insistence that Nelson Hesse is the City Attorney conflicts with previous statements he made. At one point he declared, "Either I am or I am not the City Attorney." Further, when declining to negotiate an assignability clause in his June 9, 2014, Letter of Engagement because, as he explained to the City Commission, "But, the thing you have to understand is, Number 1, is that – is I'm sort of the center of the universe, so wherever I go, that's where it [this contract] goes." Respondent accurately, and appropriately, portrayed himself as the primary attorney for the City, regardless of his firm being named in his 2012 Agreement for Legal Services to the City. Respondent regularly signed official documents as "Robert K. Robinson, City Attorney," not as "Nelson Hesse as City Attorney, by Robert K. Robinson," or some other form of signature where he states his firm is the City Attorney. It is significant that the 2012 Agreement for Legal Services was signed by Tom Jones, then-Chair of the City Commission. The City Manager did not sign the document as he would have if this contract and the legal services rendered thereunder fell into the category of non-charter personnel performing legal (or other) services for the City. Only the City Commission can appropriately sign an agreement or contract designating a Charter Officer such as the City Attorney. Respondent was accountable to the City Commission for work performed under the Agreement. He acknowledged that the Agreement was on a City Commission agenda "at a public hearing where they [the Commissioners] adopted – or they executed the contract."
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that Respondent, Robert K. Robinson, violated sections 112.313(6) and 112.313(16)(c), Florida Statutes, and ordering him to pay a penalty of $5,000 per violation ($10,000 total). DONE AND ENTERED this 31st day of January, 2017, 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 31st day of January, 2017. COPIES FURNISHED: Elizabeth A. Miller, Esquire Office of the Attorney General Plaza Level 01, The Capitol Tallahassee, Florida 32399 (eServed) Mark Herron, Esquire Messer Caparello, P.A. Post Office Box 15579 2618 Centennial Place Tallahassee, Florida 32317 (eServed) Brennan Donnelly, Esquire Messer Caparello, P.A. 2618 Centennial Place Tallahassee, Florida 32308 (eServed) Millie Wells 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 On November 8, 1994, two new members, George Lipkins (since deceased) and Timothy Holmes, were elected to the City of Opa-Locka's five member City Commission. Following the regular meeting and the swearing in of the new commissioners on November 9, 1994, the issue of a special meeting was raised. The proposed special meeting was to take place on September 10, 1994, and the purpose of the meeting was to consider the removal of then City Manager Dennis Whitt. On November 10, 1994, Mr. Whitt, then Mayor Robert Ingram, and Commissioner Helen Miller (now deceased) reacted to the proposed special meeting by filing a Complaint for Emergency Injunctive Relief (Complaint) against Commissioners Holmes, Steven Barrett, and Lipkins. The Complaint sought to enjoin the special meeting scheduled for September 10, 1994. A ruling on the Complaint was entered on November 10, 1994, at 4:55 p.m. In the Order, Judge Margarita Esquiroz enjoined Commissioners Barrett, Lipkins, and Holmes, as well as any officers or employees of the City of Opa-Locka, from "holding any hearing on November 10, 1994, at 9:00 p.m., until further order of this court." Even though the injunction order had been entered, a special meeting of the Opa-Locka City Commission was convened on the evening of November 10, 1994. At the special meeting, the City Commission suspended City Manager Whitt and appointed Newall Daughtrey as Acting City Manager. At the special meeting, the City Commissioners also appointed Mr. Daughtrey to conduct an investigation into the finances of the City of Opa-Locka. Pursuant to the Commission's directive, Mr. Daughtrey was to investigate the fiscal affairs of the City, but could not target the mayor or the commissioners. Mr. Daughtrey appointed Respondents to assist him in conducting this investigation. During or immediately after the special meeting, Mr. Whitt and Mayor Ingram sought to have the injunction order signed by Judge Esquiroz enforced. As a result of that effort, on November 10, 1994, at 10:30 p.m., an order was entered by Judge J.C. Henderson, Circuit Court Judge, in and for Dade County, Florida, directing the Metro Dade Police Department to enforce the injunction order. Moreover, the order entered by Judge Henderson directed the Metro Dade Police Department "to take all reasonable steps to secure the audio tapes of the meeting that took place in violation of the [injunction] order." Notwithstanding the injunction order, Mr. Daughtrey took the position that the City Commission, by its action at a special meeting held on November 10, 1994, had appointed him Acting City Manager. On the other hand, Mr. Whitt took the position that there had been no lawful action by the City Commission, and refused to physically yield his office to Mr. Daughtrey. During this "stand- off," Mr. Daughtrey did not move into the office designated for the city manager, but moved into another office in City Hall. Acting in his role as Acting City Manager, Mr. Daughtrey informed the commissioners that he was appointing Respondents Rolle and Riley as his assistants. This information was communicated by a memorandum dated November 11, 1994, from Mr. Daughtrey to the City Commissioners. At the end of the week of November 10, 1994, Respondent Riley received a copy of this memorandum when it was hand- delivered to Riley's house. City Manager Whitt, joined by Mayor Ingram and City Commissioner Miller, challenged Mr. Whitt's suspension. As a result thereof, on November 18, 1994, Judge Esquiroz held a hearing on the injunction, and ruled that all actions taken at the November 10, 1994, special meeting were in violation of the law and were without effect. As a result of this ruling, the City Commission scheduled a meeting for December 9, 1994, for the purpose of considering the continued employment of Mr. Whitt. Some time after he received the aforementioned November 11, 1994, memorandum, and before December 10, 1994, Respondent Riley was directed by Mr. Daughtrey to go to the law offices of Wintropp and Greason to assist in preparing the notice for the December 9, 1994, hearing. Respondent Riley complied with this directive and, in fact, worked to ensure that the notice and activities associated therewith complied with the provisions of the Charter of City of Opa-Locka and Chapter 119, Florida Statutes. Respondent Riley also performed other tasks during this time period at the request of at least one of the City Commissioners. Although Respondent Riley performed these assignments before the December 9, 1994, meeting, he did not routinely work in City Hall due to Mr. Whitt's refusing to allow him to work there. Consistent with the November 11, 1994, memorandum, Mr. Daughtrey offered Respondent Rolle a job as the City Manager's assistant, working as the Director of Personnel. Respondent Rolle accepted the offer, and thereafter began performing services for the City in November 1994. This was Respondent Rolle's first experience working for a governmental entity. During the period between November 1994 and December 1994, Respondents went to City Hall on numerous occasions to retrieve information and materials necessary to perform their various job-related activities. Respondents were observed by Mr. Whitt, commissioners, and city staff members in City Hall performing these activities. According to Mr. Whitt, the Respondents were "busy with activities relating to [Whitt's] removal." Also, during the period, Respondents met weekly with Mr. Daughtrey and some of the City Commissioners. At the December 9, 1994, City Commission meeting, the Commissioners removed Mr. Whitt as City Manager and appointed Newall Daughtrey as City Manger. However, during the period between November 10, 1994, and December 9, 1994, Mr. Whitt remained on the City of Opa-Locka payroll as the City Manager and continued to physically occupy the City Manager's Office. Moreover, Mr. Whitt and his staff managed the day-to-day operations of the City of Opa-Locka. At all times pertinent hereto, personnel actions in the City of Opa-Locka, including new hires, terminations, and salary changes, were accomplished through completion of a Report of Personnel Action (RPA). The procedure for processing RPA forms required the signatures of four persons: (1) the affected employee; (2) the applicable Department Director; (3) the Director of Personnel; and (4) the Personnel Department staff member processing the form. After the Personnel Department processed RPA forms, it retained one copy of the RPA form and forwarded the other copy to the City's Finance Department. In the case of new hires, the Finance Department then prepared warrants in amounts that corresponded with the amount designated on the RPA forms. The Finance Department also prepared a check register that listed the amount and payee of each check. This check register was provided to the City Manager along with the unsigned warrants. After reviewing of the check register, the City Manager was required to personally sign each warrant prior to issuance thereof. On or about December 13, 1994, upon the new administration, including Respondents, moving into their offices in City Hall, RPA forms were processed for both Respondents. Because Respondents were appointed as the City Manager's assistants, City Manager Daughtrey, was considered their Department Director. Hence, on Respondents' RPA forms, Mr. Daughtrey should have signed on the line designated "Department Director." On or about December 13, 1994, and prior to Respondents' RPA forms being processed, Respondent Rolle brought his RPA form to the City of Opa-Locka Personnel Office and gave it to Sharon Jones, a personnel specialist. Rather than process the form, Ms. Jones gave the form to her supervisor, Ana Otero, Acting Personnel Director. Ms. Jones was reluctant to process the RPA because the City Manager's signature was not on the form. At some point while Respondent Rolle's RPA form was being processed, Ms. Otero told Respondent Rolle that she did not believe that he was entitled to retroactive pay. Respondent Rolle then took the form from Ms. Otero and left the Personnel Office. On or about December 13, 1994, Respondent Riley took his and/or Respondent Rolle's RPA form to Mr. Daughtrey to sign. However, when Respondent Riley presented the RPA forms to him, Mr. Daughtrey was very busy dealing with other pressing matters involving the City of Opa-Locka and did not sign Respondents' RPA forms. The reason Daughtrey did not sign the forms is that he was concerned about the salary amount shown on the forms. Thereafter, Respondent Riley, in his role of Assistant City Manager, signed his own name on the line designated for the Department Director on both his and Respondent Rolle's RPA forms. Moreover, on both RPA forms, Respondent Rolle, as the Director of Personnel, signed his own name on the lines designated for the signature of the Director of Personnel and the personnel staff member who processed the form. Both Respondents signed their names as the affected employee on their respective RPA forms. There is no indication that the City of Opa-Locka had a policy that precluded Respondent Rolle as Personnel Director, from signing either his or Respondent's RPA forms in the places designated for the signature of the Personnel Director and staff of the Personnel Office involved in processing the forms. On December 13, 1994, RPAs were processed for the Respondents, appointing them as the City Manager's Assistants, effective November 10, 1994, and providing for payment of $50,000 per year effective November 10, 1994. According to the RPA forms, the retroactive payment due each Respondent was $4,231.04. On the Respondent Rolle's RPA form, the amount of retroactive payment typed on the form was $4,227.52; however, this amount was lined through and the amount hand-written immediately below it was $4,231.04. Next to the amount that had been lined through were the hand-written initials "alo." These appear to be the initials of Ana Otero. However, Ms. Oetero was unsure if she had, in fact, completed any of the information required on the RPA forms. It is unknown when or how Respondents' rate of pay as assistants to the City Manger was determined. However, it was always anticipated that Respondents would be compensated for their work as the City Manager's Assistants, even though Mr. Daughtrey never specifically talked about salary. Notwithstanding the fact that Mr. Daughtrey did not sign Respondents' RPA forms, he acknowledged that Respondents were entitled to compensation for the period between November 1994 and December 1994, but was unsure as to how much they should be compensated. On December 14, 1994, after Respondents' RPA forms were processed, the City of Opa-Locka issued warrants for retroactive pay in the amount of $4,231.04 to the Respondents. City Manager Daughtrey personally signed the payroll checks which were thereafter issued to Respondents in the normal course of business. These warrants were eventually cashed by Respondents. Once the City Manager signed the checks for retroactive payment to Respondents, the subject checks were legally authorized. Mr. Daughtrey also received a payroll check from the City of Opa-Locka for the period November 10, 1994, through December 10, 1994. On June 10, 1995, the Opa-Locka City Commission removed Newall Daughtrey as City Manager. This action was taken after Mr. Daughtrey questioned the City Commissioners' entitlement to deferred compensation disbursed to them by their former City Manager. Mr. Daughtrey raised this issue with the City Commission based on his belief that the amount of that disbursement was in violation of the City Charter. On June 28, 1995, the Opa-Lock City Commission directed the new City Manager to refer the issue of the propriety of Respondents' and Daughtrey's receipt of the subject paychecks to the State Attorney for the Eleventh Judicial Circuit of Florida. After investigating the matter, the State Attorney found no probable cause to believe that any theft had been committed and referred the case to the Ethics Commission. As a result of Mr. Daughtrey's receiving the paycheck for the period November 1994 to December 1994, he was the subject of a complaint to the Ethics Commission by the same complainants at the same time as the Respondents. However, the Commission on Ethics found no probable cause to believe Daughtrey had committed an ethics violation in accepting his paycheck. In 1996, after Respondent Riley was an announced candidate for Mayor of the City of Opa-Locka, the City Commission, including Mayor Ingram, directed the City Attorney to sue Mr. Daughtrey and Respondents in Circuit Court, alleging civil theft of the disputed paychecks and violation of Section 112.313(6), Florida Statutes. That suit, Case No. 96-18670 CA-30, City of Opa-Locka vs. Newall Daughtrey, John Riley, and Wellington Rolle, remains open, pending jury trial. At no time prior to filing that suit did the City of Opa-Locka or any of its officers or officials demand return of the disputed payments from either Respondents or Newall Daughtrey.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that a Final Order and Public Report be entered finding that Respondents, John Riley and Wellington Rolle, did not violate Section 112.313(6), Florida Statutes. DONE AND ENTERED this 8th day of October, 1998, in Tallahassee, Leon County, Florida. CAROLYN S. HOLIFIELD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 8th day of October, 1998. COPIES FURNISHED: Virlindia Doss, Assistant Attorney General Office of the Attorney General The Capitol, Plaza Level-01 Tallahassee, Florida 32399-1050 James H. Greason, Esquire 3191 Coral Way Miami, Florida 33145 Kerrie Stillman, Complaint Coordinator Commission on Ethics 2822 Remington Green Circle, Suite 1 Post Office Box 15709 Tallahassee, Florida 32317-5709 Phil Claypool, General Counsel Commission on Ethics 2822 Remington Green Circle Post Office Drawer 15709 Tallahassee, Florida 32317-5709 Bonnie Williams, Executive Director Commission on Ethics 2822 Remington Green Circle, Suite 101 Post Office Drawer 15709 Tallahassee, Florida 32317-5709
Findings Of Fact At all times material hereto, the Dade County School Board (Petitioner) was a duly constituted school board charged with the duty to operate, control, and supervise all free public schools within the school district of Dade County, Florida, pursuant to Article IX, Constitution of the State of Florida, and Section 230.03, Florida Statutes. Edward E. Smith (Respondent) has a Bachelor's of Science in Accounting and Management Science and a Master's degree in International Business and Accounting. Respondent is a member of the Institute of Administrative Accountants, which membership requires testing, and as a member, he is authorized to practice accounting in the British Commonwealth as a fellow of the Institute of Administrative Accounting which is the equivalent to the Certified Public Accountant (CPA) in the United States. At all times material hereto, Respondent was employed by Petitioner as an accountant, holding the positions of Coordinator I or II, Operating Budgets, which are non-instructional administrative positions and assigned to the Office of Facilities Management. He was employed under an annual contract (twelve month employee) and has been continuously employed by the School Board for approximately 11 years. As an administrator, Respondent's minimum work day was from 7:00 A. M. to 3:30 P.M. For administrators, no standard workday exists in the form of a rule with specific starting or departing time. Also, Respondent took the benefit of a 15 minute break in the morning and one in the afternoon provided for Petitoner's employees. There is no rule prohibiting administrators from using the breaks. Respondent's salary remained the same regardless of the hours worked. If he performed his employment duties before 7:00 A.M. or beyond 3:30 P.M., Respondent received the same compensation. Respondent's lunch time was one (1) hour and could be taken anytime between the hours of 11:30 A.M. and 1:30 P.M. He could request an extension of his lunch hour but never made such a request. INVOLVEMENT WITH TRI-CITY COMMUNITY ASSOCIATION,INC. In 1989, Respondent became a member of the Board of Directors for Tri- City Community Association, Inc. (Tri-City). Sometime later, he became its secretary, then treasurer, and in 1991, Respondent became Tri-City's president. As president, he was also chairperson of the board. In or around February 1994, Respondent's association with Tri-City ended. Respondent did not inform Petitioner of his involvement with Tri-City. There was no need or requirement for him to do so. Tri-City is a nonprofit organization which provides services for low income neighborhoods, primarily minority neighborhoods, by repairing the homes of targeted individuals in the neighborhoods, and which provides training for disadvantaged youths by having the youths perform the repairs and providing the youths with marketable skills. Most of Tri-City's funding is from the City of Miami and Dade County, and in the past, some funding has come from Petitioner. Members of Tri-City's board of directors are volunteers and are not compensated for their service or participation. Contrastly, the staff of Tri- City consists of paid employees. Most of the board members are employed. In order to accommodate the employed board members' work schedules, board and committee meetings, including executive committee, full board, program committee, fund-raising committee, and personnel committee, were generally scheduled for an hour, but may exceed an hour, during the lunch period between 11:00 A.M. and 2:00 P.M. The meetings usually began between 11:30 A.M. and 12 Noon. As president of Tri-City's board of directors, Respondent's responsibility, among other things, was to attend full board meetings, which were held every quarter, and to attend executive board meetings, which were held once a month. Also, as president, he was an ex-officio member of all committees. Respondent, as president, changed the format of the executive board meetings so that each meeting could be completed in approximately one (1) hour. He also changed the meeting times so that the meetings would accommodate his lunch time and other working members. If a meeting was not completed within an hour, Respondent would leave early so that he could return to work in a timely fashion. Board members could vote by proxy. On occasion when Respondent was not present, another board member would cast proxy votes for Respondent. The agenda for Tri-City board and committee meetings is not reliable for determining the actual starting time of the meetings. The agenda indicates the scheduled time only. The minutes of Tri-City board and committee meetings are not reliable as to the starting and ending time of meetings or when a member arrived or departed. The meetings were tape recorded but were later transcribed anywhere from days to weeks after the meetings by Tri-City's secretary, a paid employee, who was not present at the meetings. The secretary used the starting time on the agenda as the starting time in the minutes. No ending time was listed in the minutes. More times than not, the minutes contained omissions and inaccuracies. Members who voted by proxy or who contacted a committee by telephone to vote were listed as being present. If Respondent departed a meeting before it concluded, the minutes would not reflect his departure. Tri-City's monthly executive committee meetings and quarterly full board meetings were held in a conference room in the building where Tri-City's office is located. Board members accessed the conference room by elevator without going through, to, or near Tri-City's office. Furthermore, the members were not required to sign-in at the Tri-City office. Consequently, the board members could attend the meetings without Tri-City staff knowing it. Respondent's place of employment was located approximately five (5) minutes, and no more than ten (10) minutes, from Tri-City's office. CONDUCTING TRI-CITY BUSINESS ON PETITIONER'S TIME Respondent attended Tri-City board and committee meetings during his lunch time. Tri-City's executive director generally attends full board executive committee meetings; however, the executive director may be requested to leave during an executive board meeting by the members. No executive director had a reliable or credible recollection of the span of time Respondent attended the meetings, i.e., when Respondent arrived and when he departed. However, on two different occasions at Tri-City committee meetings, Respondent was present beyond the scheduled block of time in which he has to take his one (1) hour lunch which ends at 1:30 P. M. On October 29, 1992 at a full board meeting, Respondent was in attendance at the meeting beyond 1:45 P. M. On August 26, 1993 at a call executive committee meeting, Respondent was in attendence at the meeting until around 1:30 P.M. or 1:45 P.M. when the meeting adjourned. But no evidence was presented to show when Respondent arrived or when he departed either of the two meetings. Both days were a work day for which Respondent was paid by Petitioner. At times, Respondent would visit Tri-City work sites. These visits were made during Respondent's lunch hour. On or about May 11, 1993, Respondent left work around 2:30 P. M., before the end of his work day, to attend a court proceeding involving Tri-City. Respondent worked through his lunch hour that day in anticipation of attending the court proceeding. This day was a work day for which Respondent was paid by Petitioner. On one occasion, Respondent visited the Tri-City office to investigate a personnel matter. On August 16, 1993, Respondent was at Tri-City's office for at least 30 minutes from approximately 8:30 A.M. to approximately 9:00 A.M. This day was also a work day for Respondent for which he was paid by Petitioner. USING PETITIONER'S EQUIPMENT, PERSONNEL, AND OFFICE From around February 1990 to around February 1993, Respondent supervised an employee who on several occasions performed tasks for Respondent involving or associated with Tri-City. Respondent requested the employee to perform the tasks and did not require her to do so as her supervisor or promise her anything in return. These tasks were performed on Petitioner's time using Petitioner's equipment. Over this period of time, the employee typed approximately 20 to 30 documents with each taking no more than five (5) to ten (10) minutes and copied the documents that were typed. If Respondent provided envelopes, which were not Petitioner's envelopes, the employee stuffed the envelopes with the documents. Also, the employee sent from 20 to 30 faxes related to or associated with Tri-city for Respondent over this period of time. The tasks that the employee performed for Respondent involving Tri- City did not interfere with her duties or responsibilities that she was required to perform for Petitioner, her employer. The employee performed the tasks for Respondent only if she had the time to do them. When this employee began her employment with Petitioner, which was under Respondent's supervision, Respondent was doing things associated with Tri- City at his place of employment. It was never indicated that Respondent should not engage in the activities, so the employee believed Respondent's activities associated with Tri-City to be normal practice in the office. It was common practice for Petitioner's employees who worked with Respondent to use Petitioner's equipment for their own personal use. Computers were used for personal typing. The xerox machine was used for personal copying. The fax machine was used to fax personal items. No one was disciplined for using the equipment for personal reasons. Respondent, himself, faxed items to Tri-City or on behalf of Tri-City from Petitioner's fax machine in his office. Also, he received approximately 20 to 30 faxes at his workplace from Tri-City or associated with Tri-City. During the period from around February 1990 to around February 1993, Respondent used Petitioner's computer for Tri-City business. Respondent had a personal computer, provided by Petitioner, in his office. Respondent neither shared his office nor his computer with anyone else in his workplace. There is no evidence that such personal use of Petitioner's equipment at the request of Respondent or by Respondent caused any negative impact upon the equipment. From around February 1990 to around February 1993, individuals associated with Tri-City visited Respondent at his place of employment. Tri- City employees would visit Respondent once or twice monthly bringing Tri-City employee checks or various documents for Respondent to sign. These visits would involve a span of time anywhere from a few minutes to 40 minutes, but mostly a few minutes. Respondent and one member of Tri-City's board were also friends. The board member would visit Respondent once or twice monthly. Also, Respondent would at times go to Tri-City to sign the employee checks. Such visits to Tri-City would occur during Respondent's scheduled block of time for lunch. Most of the time Respondent would not eat lunch but would work through lunch. It was generally accepted that Petitioner's employees would receive personal visitors at their workplace. No rule or policy existed prohibiting personal visitors. From around February 1990 to around February 1993, Respondent received numerous telephone calls which were Tri-City related (either from Tri-City individuals or regarding Tri-City business). From around February 1990 until Winter 1991, three-quarters of Respondent's telephone calls received in a day were Tri-City related. There is no credible evidence as to the length of time of the telephone calls. After winter 1991, there is no credible evidence to show the number of telephone calls Respondent received which were Tri-City related, since his calls went directly to his office instead of through another person first. From 1992 to around February 1993, the board member who was also Respondent's friend called Respondent two or three times a week. Respondent also called Tri-City from his office telephone. There is no credible evidence as to the frequency or length of time of the telephone calls. Sometime in 1993, Respondent requested Tri-City staff to contact him through his beeper, instead of calling him at his office. Respondent's beeper was issued to him by Petitioner. There is no evidence to indicate the number of times Respondent was contacted by Tri-City staff through his beeper. There was an expectation in Respondent's workplace that use of Petitioner's telephone for personal, non-Petitioner related matters was acceptable, as long as the use was not excessive. There is no credible evidence that Respondent's personal use, either by himself or at his request, of Petitioner's xerox machine and fax machine far exceeded the personal use of the other employees in Respondent's workplace to the point of being excessive. Nor is there credible evidence that Respondent's personal telephone calls were excessive as compared to the employees. During the course of one day in either Winter 1991 or Spring 1992, Respondent conducted interviews for a position with Tri-City in his office at his workplace. This day was a work day for Respondent for which he was paid by Petitioner. In addition, the week prior to this day Respondent's workplace received several telephone calls regarding the position and the interview process, which reduced the amount of time the employees at Respondent's workplace expended on Petitioner's business. One day in the month of either March, or April, or May 1992 Respondent had a meeting in his office with individuals associated with Tri-City. The meeting began at around 5:00 P.M. and lasted a few minutes. Even though the meeting began after Respondent's work day ended at 3:30 P. M., individuals associated with Tri-City began arriving before 1:00 P. M., and went directly to Respondent's office. This day was a work day for Respondent for which he was paid by Petitioner. At some point Respondent instructed Tri-City staff to transfer information from the hard drive of their computer to diskettes. He would access the information on the diskette using his personal computer in his office. Also, Respondent stored the material from the diskette on his office computer. There is no evidence that such use and storing by Respondent affected the performance of Respondent's computer or impaired the ability of the computer to save and store Petitioner's data. RESPONDENT'S OFFICE SITUATION Respondent worked in Petitioner's central maintenance compound (compound) which contained several buildings, including the building where Respondent's office was located. The compound covered several blocks. Respondent was able to perform some of his work prior to 7:00 A.M. and after 3:30 P.M. He had access to data and a personal computer provided by Petitioner. Additionally, Respondent had access to a lap top computer, issued by Petitioner, which he used at home. In 1991, Maria Davis became Executive Director of Maintenance and Capital Projects and became Respondent's supervisor. In 1993, Ms. Davis became an Assistant Superintendent for Petitioner and was in charge of the Office of Facilities and Operations. In 1991, a sign-in and sign-out procedure was instituted for administrators. Sign-in and sign-out sheets were provided in the areas under Ms. Davis' supervision. When signing-out, there was no requirement to indicate on the sign-out sheet where one was going and no one did. Also, there was no requirement to verbally inform someone where one was going. At least from in or around February 1990, Respondent would be in his individual office working before the beginning of a work day at 7:00 A. M. and after the end of a work day at 3:30 P.M. After Respondent and other employees in his office moved into a new building, called the "White House," within the compound in the Winter 1991, Respondent would be in his office about 50 percent of the time by 7:00 A.M. and almost always after 3:30 P.M. If he left the office before the end of the work day and had to go to another location on Petitioner related business, Respondent would sign-out using the time that he expected to leave the other location. As part of his duties and responsibilities, Respondent was required to visit Petitioner's satellite offices. When Respondent was in the White House, he would open the door to his individual office when he arrived in the mornings and close his office door at the end of the day when he left. Although on some mornings he was not physically in his office at the beginning of his work day, which began at 7:00 A.M., Respondent had already been in his office on those mornings because his office door was open. Respondent was issued a beeper by Petitioner. When he was away from the compound, his office could reach him through his beeper. Most of the time, Respondent's office did not know his whereabouts when he left the office, so they either paged him or beeped him. When his office paged or beeped him, Respondent promptly responded. At times, from around 1991 to around February 1993, when Respondent was not in his office and his supervisor, Maria Davis, or later his immediate supervisor Berny Blanco, called asking for him, Respondent's office beeped him, entering the caller's telephone number in the message. Neither Ms. Davis nor Mr. Blanco would call back, indicating that Respondent had contacted them. Only on one or two occasions did Ms. Davis or Mr. Blanco call a second time asking for Respondent. For the 1991-92 school year, after Ms. Davis became Respondent's supervisor, his performance evaluation declined from "exceeding performance expectations" to "meeting performance expectations." Respondent's decline was based upon Ms. Davis determining, among other things, that Respondent was not producing his work in a timely fashion, that at times he could not be located, and that he was tardy in the mornings. At or around the same time that Respondent became involved with Tri- City, he had marital problems. Respondent became less focused on his office work and responsibilities. There is no evidence to show that Respondent's involvement with Tri-City was the cause of him being less focused. Respondent's performance is not an issue in this proceeding. By memorandum dated May 23, 1991 to Respondent and three other administrators, Ms. Davis expressed her concern about them not being in their respective offices at the beginning of the work day (7:00 A. M.) and advised them to adhere to the working hours. Further, Ms. Davis advised them to notify either her or one of the other supervisors if they had to leave early or if they had to leave the compound for meetings or personal business and to wear their beepers during work hours. By memorandum dated August 29, 1991, Ms. Davis notified all employees under her supervision regarding, among other things, the work day consisting of eight hours, which included two 15 minute break periods, and not engaging in unauthorized activities, including shortening their work day by returning to the compound without good reason. In late 1991 or early 1992, Ms. Davis transferred supervision of Respondent to Berny Blanco. Ms. Davis did this because she felt that she was devoting too much time to the budget area and that Respondent needed closer monitoring. By memorandum dated February 7, 1992, Ms. Davis notified Respondent regarding, among other things, the minimum work hours of 7:00 A.M. to 3:30 P.M., noting that she had been unable to reach him on occasion near the end of the work day and that he was arriving late for work. Further, Ms. Davis advised Respondent, among other things, to notify her office when he arrived late or departed early and when he needed to visit another work site during the work day. On or about July 20, 1993, Respondent was given a prescription for improving his performance which was considered by Mr. Blanco and Ms. Davis to be below expectations. Of importance, in the prescription Respondent was noted as having failed to regularly inform his supervisor or staff of his whereabouts and having failed to be regularly available or responsive to questions regarding office functions. The prescription did not indicate any problem with Respondent's work attendance, lunch hour or personal use of Petitioner's equipment. On or about July 19, 1993, Mr. Blanco, while at the fax machine in Respondent's workplace, intercepted a fax from Tri-City to Respondent. Mr. Blanco did not mention or give the fax to Respondent. At no time, after intercepting the fax, did Mr. Blanco discuss Tri- City with Respondent. Nor did Mr. Blanco discuss with Respondent the use of Petitioner's equipment to receive non-Petitioner related items. On or about August 16, 1993, a former employee of Tri-City, Wanda Armstrong, telephoned Mr. Blanco to inform him of Respondent's volunteer, non- Petitioner related activities with Tri-City. Mr. Blanco reported the telephone call to Ms. Davis. Ms. Davis contacted the director of the Dade County School Police (School Police) for her region and requested a personnel investigation regarding Respondent's activities with Tri-City. Also, she requested the director to be personally involved in the investigation. Sometime between August 16, 1993 and September 3, 1993, Mr. Blanco accessed Respondent's office personal computer and obtained Tri-City documents from Respondent's hard drive. Mr. Blanco transferred the documents from Respondent's hard drive to a portable computer and printed the documents. 1/ Mr. Blanco performed this act without Respondent's knowledge and after Respondent had left his office for the day. Also, Mr. Blanco performed this act at the request of the School Police. On or about September 3, 1993, Jolita Dorsett telephoned Mr. Blanco complaining about Respondent engaging in Tri-City business during the time Respondent was supposed to be performing his duties and responsibilities as Petitioner's employee. Ms. Dorsett was the former executive director of Tri- City and had been terminated by Respondent pursuant to a directive from the Tri- City board of directors. Mr. Blanco reported the telephone call to Ms. Davis who directed him to contact the School Police. Mr. Blanco complied with the directive. Regarding the handling of complaints against salaried administrators, Mr. Blanco, as Respondent's supervisor, was obligated to follow the procedures in the Manual of Administrative Personnel Procedures (MAPP). The provisions of MAPP contemplate that a complaint would be the preliminary step prior to an investigation of an administrator and, in turn, require that all complaints against such an employee, as well as the identity of the complaintant, be made known to the employee. Mr. Blanco did not make a determination as to whether either Ms. Armstrong's or Ms. Dorsett's telephone calls were complaints. Neither did Mr. Blanco meet with Respondent, in accordance with MAPP procedures, to discuss the telephone calls. Once an investigation, including a personnel investigation, is initiated by the School Police, it is the School Police which determines and directs the scope and conduct of the investigation. The School Police's personnel investigation of Respondent did not follow the usual procedures or process even though it was not an unusual case. The case was assigned to an investigator without the usual paperwork preceding an assignment; the executive director/chief of the School Police participated directly in the investigation which is not the norm; the investigator reported directly to the chief instead of reporting to his (investigator's) coordinating supervisor; the chain of command was by-passed in the investigation in that the director of the School Police was by-passed in the reporting process which is not the normal procedure. Further, at the onset of the investigation, Ms. Davis, Mr. Blanco, and the chief, coordinating supervisor and investigator of the School Police met with Ms. Dorsett on or about September 13, 1993. At the meeting, Ms. Dorsett provided copies of minutes of Tri-City meetings and discussed the minutes with them. At no time during the meeting was Ms. Dorsett questioned by members of the School Police who were in attendance. It is unusual for the chief of the School Police to meet at the beginning of an investigation with the administrators and a potential witness. Additionally, it is unusual for an investigator to not question a witness and for the supervisor of an employee being investigated to be present at such a meeting. On or about September 28, 1993 the chief of the School Police and Ms. Davis met with Respondent and Respondent's representative from the Dade County School Administrator Association (representative) of which Respondent is a member. Prior to this meeting, Respondent had not been made aware that allegations had been made against him or the nature of the allegations or that there was an investigation, or of the identity of his accusers. Usually, the School Police's investigator makes contact with the person being investigated (subject) and reveals to the subject the aforementioned. At this meeting, these things were not revealed to Respondent. On the advice of Respondent's representative, after the chief of the School's Police refused to make the revelations, Respondent did not say anything. On or about September 24, 1993, Respondent had received written communication regarding the meeting, which notified him that he was being investigated concerning his relationship with Tri-City. The written communication did not specify the allegations or identify the accusers. The investigation was completed relying solely on statements from Ms. Dorsett, Ms. Hicks (Tri-City employee and present executive director), Ms. Davis and Mr. Blanco, the copies of the Tri-City minutes provided by Ms. Dorsett, copies of Respondent's time sheets which were compared to the dates and times of Tri-City meetings contained in the minutes, and a copy of the items from Respondent's office personal computer obtained by Mr. Blanco. 2/ The investigation was reduced to a written report, with attachments. Usually, an investigative report is reviewed and signed by at least three individuals in the School Police: the investigating officer, the investigating officer's immediate supervisor who is usually the coordinating officer, and the division director. However, this procedure was not followed with Respondent's investigation. Only one person reviewed the report and signed for all the others and that person was the acting coordinator; not even the investigator reviewed the report after it was prepared. In late October 1993, Respondent and his representative received a copy of the investigative report which failed to have any attachments even though the report referred to a list of attachments. Not until January 1994, did Petitioner provide the attachments. After the meeting held on September 28, 1993, and on that same day, Respondent was "re-deployed" (moved) from his office to another location. The locks on his former office were changed. In the haste of the move, Respondent left some personal items in his office. At the time of the formal hearing, Respondent had not been returned his personal items. Included in his personal items was non-Petitioner related personal mail, which was clearly addressed to Respondent. Some of this personal mail was opened and reviewed by Respondent's supervisor. At his new location, Respondent's access to information, via his computer, that he needed to perform his duties and responsibilities was terminated. Mr. Blanco ceased being Respondent's supervisor and Respondent was placed under the supervision of someone else. At Respondent's new location, he was also given new and different duties and responsibilities even though his job description did not change. Respondent's prescription was not altered to coincide with his new duties and responsibilities. Also, at his new location, Respondent received Tri-City visitors. There is no credible evidence that these visits did not occur during Respondent's lunch hour. SUSPENSION/DISMISSAL On March 23, 1994, Petitioner suspended Respondent and initiated dismissal proceedings against him. Petitioner's action was based upon the recommendation of Dr. Patrick Gray, which was based upon the School Police's investigative report, with attachments, his (Dr. Gray's) own investigation which included discussions with Ms. Davis and Mr. Blanco, and Respondent's work performance. Respondent's name was not included on a list of individuals on whom Petitioner voted for reappointment for the 1994-95 school year. As a result, Respondent's contract was not renewed after June 30, 1994, when his then current contract expired.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Dade County School Board enter a final order revoking the suspension and reinstating Edward E. Smith under such terms and conditions as are appropriate. DONE AND ENTERED this 21st day of August, 1995, in Tallahassee, Leon County, Florida. ERROL H. POWELL Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 21st day of August, 1995.
The Issue Pursuant to section 120.56(1)(a), the issues are whether Petitioner and Intervenor are substantially affected by rules requiring that covered insurers report their policyholders' street addresses on Form FHCF-D1A Rev. 05/15 (2015 Data Call), as incorporated by reference in Florida Administrative Code Rule 19-8.029(4)(e), and, if so, whether these rules are an invalid exercise of delegated legislative authority.
Findings Of Fact Insured losses from Hurricane Andrew in 1992 revealed that numerous property and casualty insurers had over-insured certain exposures. After the storm, worldwide insurance capacity contracted, which eliminated an important means by which insurers could address the problem of over-exposure. These conditions forced many insurers to reduce their Florida exposure to preserve their solvency. § 215.555(1)(b), Fla. Stat. (2013). Finding that many insurers were unable or unwilling to maintain the reserves, surplus, and reinsurance sufficient to pay all claims following catastrophic insured losses, § 215.555(1)(d), Fla. Stat., the Legislature in 1993 created FHCF to be administered by SBA. The purpose of FHCF is "to provide a stable and ongoing source of reimbursement to insurers for a portion of their catastrophic losses . . . ." § 215.555(1)(e), Fla. Stat. The Legislature structured FHCF as "a state trust fund under the direction and control of the [SBA to operate] exclusively for the purpose of protecting and advancing the state's interest in maintaining insurance capacity in this state." § 215.555(1)(f), Fla. Stat. To maintain insurance capacity in Florida, each insurer issuing an insurance policy on residential property in Florida is required to enter into a reimbursement contract with FHCF. § 215.555(2)(c) and (4)(a), Fla. Stat. In general, the reimbursement contract provides that, in the event of covered losses, FHCF shall pay a specified reimbursement amount in return for the payment of an annual premium by the insurer. Id. An insurer's covered losses in excess of its non- reimbursable retention amount will be reimbursed at one of three percentages--45%, 75%, or 90%--that the insurer selects for the reimbursement contract year, although reimbursements are subject to a specified maximum payout on all reimbursement contracts in a single contract year. § 215.555(2)(e) and (4)(b)1. and (c)1., Fla. Stat. SBA annually retains an independent actuarial consultant to develop a formula for determining the reimbursement premium to be paid by each insurer to FHCF. § 215.555(5)(a) and (b), Fla. Stat. The formula "shall specify, for each zip code or other limited geographical area, the amount of premium to be paid by an insurer for each $1,000 of insured value under covered policies in that zip code or other area." § 215.555(5)(b), Fla. Stat. By September 1 of each year, "each insurer shall notify [SBA] of its insured values under covered policies by zip code, as of June 30 of that year." § 215.555(5)(c), Fla. Stat. SBA then calculates a reimbursement premium by applying the reported insured values, by zip code, to the premium formula developed by the actuarial consultant. Id. Reimbursement premiums are a major source of revenue for FHCF. Other sources of revenue may include investment income, pursuant to section 215.555(3); emergency assessments on all premiums paid for any property and casualty insurance in Florida, pursuant to section 215.555(6)(b); interest on certain advances made to insurers likely to be due reimbursements, pursuant to section 215.555(4)(e); and certain fees that FHCF may impose on insurers filing untimely or incorrect exposure data, pursuant to section 215.555(7)(e). FHCF may also anticipate revenues and maintain cash flow by issuing post-loss revenue bonds, pursuant to section 215.555(6)(a), and borrowing money by other means, such as by issuing pre-event bonds, pursuant to section 215.555(7)(b). Allowable expenditures of FHCF are reimbursements to insurers, debt service, costs of legislatively authorized hurricane-loss mitigation programs, reinsurance costs, and administrative costs. § 215.555(3), Fla. Stat. Section 215.555(7)(a) specifically authorizes FHCF to enter into reinsurance contracts with reinsurers acceptable to OIR "consistent with the prudent management of the fund." FHCF purchases reinsurance to manage its loss exposure and maintain its ability timely to reimburse Florida insurers for covered losses. FHCF's reinsurance contracts are unique due to a variety of factors, such as the loss amounts retained by individual insurers, the three tiers of reimbursement rates, and the limits on total reimbursements in a reimbursement contract year. FHCF's reinsurance contracts thus require customized pricing, which places a premium on careful negotiations to ensure that FHCF is purchasing reinsurance contracts at favorable prices. For a variety of reasons, including the emergence of pension funds, hedge funds, and wealthy individuals as reinsurers, reinsurance costs have declined in recent years. For instance, FHCF was quoted, in 2008, 25 cents for each dollar of reinsurance, but was quoted, in 2015, 6.78 cents for each dollar of reinsurance, presumably for comparable loss exposures. In recent negotiations, FHCF representatives were concerned that some reinsurers may have had access to more detailed loss-exposure data than was available to FHCF-- specifically, to covered properties' street addresses or other locational coordinates, rather than merely zip codes. Knowledge of street address data would permit more accurate pricing of reinsurance because, for the past ten to fifteen years, loss- projection models have been able to analyze street address data to produce more accurate projections of covered losses from specified wind events. It is unnecessary to determine whether the concern of the FHCF representatives was well-founded. Regardless of whether the possession of more-detailed data by FHCF would restore parity with reinsurers or confer an advantage over reinsurers, access to this more-detailed data would improve FHCF's bargaining position when negotiating for the purchase of reinsurance. For these reasons, SBA and FHCF decided to obtain from insurers their street address data with the 2015 Data Call. Rule 19-8.029, which incorporates the 2015 Data Call by reference, cites as rulemaking authority section 215.555(3) and cites as the law implemented sections 215.555(2), (3), (4), (5), (6), (7), and (15) and 627.351(6). The rule-amendment process did not take long. On January 22, 2015, SBA published notice of development of the proposed street address and other rules. By January 28, 2015, FHCF had prepared the street address rules. FHCF provided notice of a rule development workshop for the morning of February 5, 2015, and the FHCF Advisory Council provided notice of a meeting to consider the proposed rules for the afternoon of the same day. Pursuant to section 215.555(8), the advisory council is a nine- member body that includes one representative of carriers, one representative of reinsurers, one representative of insurance agents, and representatives of other industries and consumers. At the workshop, a FHCF representative explained the street address rules, asked for questions or comments, and received none. At the advisory council meeting, which was attended by five of its members, a FHCF representative explained the street address data and, again, received no questions or comments. On March 24, 2015, the SBA Trustees met to authorize FHCF to file the proposed rule changes. The Trustees approved the filing without discussion, and, on March 25, 2015, FHCF published the proposed rules, including the street address rules. On May 12, 2015, the proposed rules became final. The silence of participating carriers during the rulemaking process undermines the claim of the chief witness of Petitioner and Intervenor that each carrier's street address data represents its "crown jewels." Nonetheless, there is ample evidence of the importance of street address data to insurers. Street address data is the foundation of the carrier's relationship with its policyholders. Unlike zip code data, street address data facilitates communications with policyholders and access to other databases for policyholder information that an insurer may use to generate additional revenues, not limited to insurance. In this era of Big Data, the growth in the amount of information accessible through a person's street address has increased in the past year by an amount in excess of the increase of this information in the preceding 30 years. Presently, over 500 pieces of additional information is available to the possessor of street address data, obviously presenting marketing opportunities across many industries, not just insurance. And this data retains much of its value even after a policyholder has moved to another residence. This data is less valuable to an insurer to the extent that it is available from sources other than the insurer. In particular, if an insurer's street address data is obtained by a competitor, the competitor may target the insurer's customers, sparing itself much of the customary costs of obtaining new business. Thus, when transferring rights to their confidential data, insurers include within the transfer agreement various provisions ensuring the proper and secure use of the data and providing for relief in the event of a breach of the agreement. Property and casualty insurers also protect their street address data from unauthorized disclosure by implementing data-security technology. The ongoing threats posed by hackers and advances in their technology requires constant updating of insurers' data-security technology. The importance of policyholders' locational data has long been recognized. In 1993, when creating FHCF, the Legislature enacted section 215.557, which treats as confidential and exempts from public records laws insurers' reports of covered property by zip code, which the statute acknowledges is "proprietary and trade secret information" that, if revealed, "could substantially harm insurers in the marketplace and give competitors an unfair economic advantage." Ch. 93-413, § 2, Laws of Fla. For its part, FHCF has implemented data-security technology to safeguard insurers' confidential information. The reinsurance contracts and SBA Policy 10-043 preserve the confidentiality of all information submitted under a claim of confidentiality. SBA and FHCF have imposed contractual provisions requiring their consultants to preserve the confidentiality of all data identified as confidential by SBA or FHCF, strictly limiting access to such data, and directing the destruction of any such data received by the consultants after the completion of their work. However, in the event of a breach of an agreement between SBA or FHCF and a contractor, Petitioner's members would have no effective relief against SBA, FHCF, or the contractor of SBA or FHCF. To transmit their 2015 Data Calls to SBA, insurers upload the data, including the street address data, onto an SBA server using FHCF's Web Insurer Reporting Engine (WIRE). First used for the 2014 data call, WIRE is a "secure web-based program." Fla. Admin. Code R. 19-8.029(2)(k). WIRE transfers the data to an SBA server, where it is stored. In general, SBA and FHCF prohibit the removal of confidential data stored on an SBA server; consultants, including the actuarial consultant, may use their software to analyze this data, but may not remove data from an SBA server. FHCF's chief operating officer testified that, in connection with the premium-setting process, he intends to share only the zip code data with the actuarial consultant. Access to the street address data is further limited by the fact that SBA and FHCF do not presently have programs to access the data; someone trying to access this data would have to write code to remove this data. Of course, FHCF write such code when it uses the street address data to support its negotiations with reinsurers. Based on these and perhaps other security precautions, FHCF's chief operating officer testified that the SBA server on which the street address data is stored cannot be hacked. Computer-related crime, such as that prohibited by sections 815.01, et seq., may be perpetrated by an unknown third party or by an employee or consultant, with access to the data, who acts with an intent to enrich himself, embarrass Respondents, harm insurers, or cause panic among policyholders. It is impossible to credit completely the blanket assurance of FHCF's chief operating officer, whose range of expertise spans insurance and loss modeling, but not computer security. The ongoing nature of data-security efforts suggests that the security risks posed by hackers and malevolent insiders are themselves dynamic. Section 815.02(1) and (3) finds as much in acknowledging that "[c]omputer-related crime" is a "growing problem" in the public and private sectors, and the "opportunities for computer-related crimes in financial institutions, government programs, government records, and other business enterprises . . . are great." These risks to the among the most closely guarded collections of data would not be "growing" and "great," if absolute protection of data were technologically feasible. Prior to transmitting its street address data to FHCF, each carrier's street address data is exposed to the risks associated with its storage on the insurer's server or servers and its accessibility by the insurer's employees and consultants. New risks attach when the data is transmitted by internet to FHCF and when the data is then stored on an SBA server; multiple storage points create multiple sets of risks. Petitioner is a trade association comprising 16 property and casualty insurers required to participate in the FHCF. Petitioner's insurer members include Intervenor, as well as four insurance industry consultants, who are irrelevant to this case and are not included in references to Petitioner's "members." Established in 1997, Petitioner's purpose is to promote a healthy, competitive insurance market in Florida. By the September 1, 2015, filing deadline for the 2015 Data Call, all of Petitioner's members, except Intervenor, had timely filed their 2015 Data Calls with the information required by fields 13 and 14. Intervenor timely filed its 2015 Data Call, but omitted the information called for in fields 13 and 14 to avoid Respondents' mootness argument against Intervenor's standing, as discussed below. By letter dated September 17, 2015, a copy of which was sent to OIR, FHCF advised Intervenor that, as a result of this omission, it was not in compliance with rule 19-8.029. The letter warns that possible consequences include FCHF's withholding of reimbursement payments or advances from Intervenor until it becomes compliant.
Findings Of Fact At all times relevant to this matter, Joe Pete Cannon was a member of the Town Council of Branford, Suwannee County, Florida, having served in that capacity for approximately twenty years. For approximately seventeen of the twenty years he was president of the five-member council. As president, he chaired the council meetings and assisted the mayor in town administration. Employees of the town were hired and fired by vote of the council; neither the mayor nor council president had that authority alone. Branford, as its letterhead states, is situated "on the banks of the Suwannee River". City limit to city limit, it runs about one-half to three- quarter mile long and has a population of approximately 700. Branford's chief of police, and currently only law enforcement officer is Fred Brittain. Chief Brittain has served in that capacity since 1989; he also served from 1975-1983. Between 1983 and 1989, he served 2 1/2 terms on the town council and resigned from the council in 1989. At various times in the past, Branford has employed three part-time police: Mr. Swafford, Mr. Chancey and, most recently, Roy Harper. Roy Harper was hired by the Town Council in September 1992, at the recommendation and request of Chief Brittain. He had approximately ten years' experience in law enforcement and was working on his two-year degree in criminal justice at the community college. When Harper was hired, Chief Brittain instructed him to conduct general law enforcement patrol work: "Preserve the peace; protect the public; enforce laws." The residential areas were experiencing vandalism, so Harper was told to check suspicious persons. Some burglaries and speeders were also described as problems. No quotas were established for traffic tickets, and no one suggested that traffic tickets should be a good source of revenue for the town. As to speeders, Chief Brittain explained his policy to Harper: up to ten miles per hour (mph) over the speed limit, stop and warn, or don't warn, as long as the person is not driving erratically; if the person is driving erratically or over ten mph over the limit, write a ticket, but use your discretion, as there can always be a good story. No policy was given for voiding tickets and Harper was allowed considerable discretion. Generally, both Chief Brittain and Harper had a policy of voiding tickets they wrote to teens if the parent said they would handle the discipline. As Harper described, he was not trying to cost the parent money, but just wanted to control the problem. After Harper was hired, the number of tickets written in Branford increased. This was as expected, because the more police you have, the more tickets get written. Moreover, both Harper and Chief Brittain were "radar certified" and running radar was a more efficient way to apprehend speeders. In October, November and December 1992, the number of citations were 80, 91 and 100, respectively, up from a high of 71 and an average of 46.5 over the prior twelve months period. Harper wrote tickets, but he also gave a lot of warnings. Around the end of November 1992, Harper had been "running radar" for a week from the ballpark on Governor Street. He had been giving warnings and telling folks that after the week was up he was going to write tickets. He stopped a lot of people and gave this warning. At approximately 7:34 p.m. on November 21, 1992, Howard stopped a young lady heading eastbound on Governor. She was speeding at 42 mph in a 25 mph zone. She said she was a newcomer to the area. When Harper asked where she went to school, she said "Branford". He told her she should be aware of the speed limit, and he issued the citation. Harper talked to Chief Brittain at town hall that evening and asked whether he knew Ms. Kelley, and said he had written her a ticket. Chief Brittain said the Kelleys had lived there all their lives. Jennifer Kelley attends Branford High School. She is a straight-A student, president of the student body, and "Miss BHS". Her father is Ernest Kelley, a life-time resident of Branford. He owns Kelley's Auto Supply, the NAPA store, which has been in the family since 1961, and he runs an investment business. Mr. Kelley found out about the ticket on Sunday night, and the next morning he went to see his insurance man, Tommy Lewis. He was concerned that this was a first offense, that Jennifer was known as a good kid and that maybe the ticket could be mitigated. Kelley insured the whole family on one policy and Kelley's own driving record was not so good. Lewis told him that many times Judge Kennon would waive the points and let them pay a fine. Lewis also told him that 15 mph over the limit was a "major violation", by insurance standards, and that the three options were: a) "local discretion"; b) "the judge's discretion", and c) the guaranteed option of driving school, in lieu of points. Kelley also said he could talk to Cotton State (the insurance company) and tell them this is a good kid. Tommy Lewis, Ernest Kelley and Joe Pete Cannon are golfing buddies; they are three of the twelve or fifteen Branford citizens who are members of the Chiefland County Club. After talking with Tommy Lewis, Ernest Kelley called Joe Pete Cannon and asked him to drop by his office. Cannon did, and Kelley told him about Jennifer's ticket and what Lewis had told him about the options. The driving school option, a sure thing, was not the first choice because of the child's age and the three-time limit over a lifetime. Kelley asked Cannon if he should go talk to "Fred" (Chief Brittain). Cannon said that Fred was over at town hall and offered to go see what local discretion meant. Cannon went over to see Fred, as promised. He asked the chief whether anyone had ever issued a ticket or warning to Jennifer before and he asked whether the ticket could be reduced to a warning in this case. Joe Pete Cannon, according to Chief Brittain, did not use the terms "void the ticket"; Brittain used the terms, and responded that he could not "void" another officer's ticket. Chief Brittain checked to see if the ticket had gone into the court system yet. It had not, and the chief changed the 42 mph to 40 mph and said that was all he could do. Cannon went back to Kelley and told him what happened. Kelley went to the judge, and the ticket was resolved with a $90 fine and waiver of points. If Cannon had not been a political figure, Chief Brittain would not have seen any problem with the approach. The chief had dealt with parents and violators before and he considered voiding a ticket he wrote as part of the discretion an officer should use. The questions, to Chief Brittain's mind, were not improper, except that Cannon was acting on behalf of a friend, instead of himself or a family member. At no time did Chief Brittain suggest to Cannon that Kelley should talk directly to Roy Harper about the ticket. Kelley had a chance to talk with Harper a few days later when Kelley was at the auto store after closing time. Harper stopped at the store for a routine check. The men introduced themselves and had a cordial chat. Kelley said that he had no doubt that his daughter was speeding but he wanted to make sure she was not causing trouble. Kelley told Harper he had gone to the judge and the points would be withheld when the fine was paid. Harper said that was the thing to do. Kelley was not angry with Harper. Over the next month things got stirred up in Branford about ticket writing and the unwritten policies about who got warnings and who didn't. Mike Suggs has lived in the Branford area all his life. On Christmas day 1992, his 16 year old son, Wade, was ticketed by Roy Harper as the boy was heading home out of town. The ticket reflects he was going 48 mph in a 30 mph zone. Mike Suggs talked to Cannon a few days later and said he didn't think it was fair, as he heard others had been stopped, but didn't get a ticket. He did not ask Cannon to throw it out and he did not go to Chief Brittain or Harper to complain. Gary Howard, a member of the town council complained to Chief Brittain until he heard that the youth was doing 18 mph over the speed limit, not 5 mph as his mother had said. Christine Langford, now married to Gary Howard, was clocked on Roy Harper's radar doing 54 mph in a 30 mph zone, going north on state road 129. She got a ticket and her husband felt she deserved it. Shane Harris was stopped and ticketed by Roy Harper on January 2, 1993, for doing 48 mph in a 30 mph zone. The ticket was voided when Shane's dad came and talked to Harper. The boy was in the military service; his dad is a law enforcement officer in Lafayette County. Bobby Avery was stopped by Roy Harper in December 1992 for speeding on the Lake City highway in his pick-up truck. Avery had been drinking and was a little belligerent. When he identified himself as an inspection officer from DOT, Harper called Chief Brittain to come identify him. Chief Brittain went out to the scene and did verify who Avery was, but did not mention that he, himself, had stopped Avery before. Avery's attitude was sarcastic and there was alcohol on his breath, but he was not drunk or impaired. Roy Harper let him go with a warning, primarily because he did not want the bad attitude to cause him to write the ticket. Harper found out later that Avery had been stopped before by Chief Brittain. Ms. Mullins was another speeder who just got a warning from Roy Harper. Her speed was just over the limit and she told him she "never speeds in Branford", but was on her way to the doctor's office. He told her to go and call him from the doctor's office and he would check with Fred Brittain, but if she did not call, he would send her the ticket in the mail. She called, and did not get the ticket, because Chief Brittain confirmed that he never had a problem with her. The Holzclaw boy was another case involving Roy Harper. There had been some vandalism or other criminal activity in one of the neighborhoods. Harper saw the boy in a vehicle around 10:00 or 10:30 p.m. He watched him and followed him out of town and across the Suwannee River bridge where he stopped him. After questioning the boy about some guns and equipment he had in the truck for hog-hunting, Harper let him go. The boy's father felt he had been harassed and complained to Joe Pete Cannon and to the sheriff. Nell's Restaurant in downtown Branford is the hub of social intercourse in the community. Folks gather there at lunch and on Saturdays and share news and views. At Nell's, the Branford police department was a hot issue. Richard Marquette, fourteen years in Branford, manager of a gas company and former vice-president of the Chamber of Commerce, heard that Chief Brittain was told he could have as many deputies as he wanted, as long as they wrote enough tickets to pay their salaries. He didn't know whether this was true and he went to see Joe Pete Cannon about it. He heard that Harper was hiding with his radar up at the school by the football field. He heard customers say they would rather go to High Springs because Branford was a speed trap. Tommy Lewis, in his usual course of business, gets calls from people wanting to know what a ticket will do to their insurance. He got a lot more calls when Roy Harper was a Branford police officer. He, and others, including M.O. Clark, another insurance agent in Branford, were concerned how negative publicity would affect business from people outside the town. Cannon, at some point after the Jennifer Kelley incident, talked to Chief Brittain about the complaints he was getting and the rumors he was hearing about some people getting warnings and others getting tickets. The chief assured him that Harper was doing his job and the police were being fair. By early January, and after the Holtzclaw complaint, Joe Pete Cannon was exasperated and approached the chief one last time: ...But anyway, I came down on Monday morning, January 4, and I asked Chief Brittan about the ticket, you know, as far as the warning. I said , "One person---" Because I didn't know who it was. The man said he would rather not tell me, you know, as far as--- I said, "What's this about one person, you know, as far as not one warning, but got two warnings and still hadn't got a ticket?" So he lied to me. He said, "That ain't happened." And I told him, I said, "Fred, don't you tell me a lie." Then he gave me a name. He gave me the name of who it was. So I told him, I said, "Fred, I have come to you---" That would be as far as about the third or so time. I said, "I've talked with you, you know, as far as these different---" And I said, "I'm fed up with it." I said, "On these complaints.", and I said, "I'm telling you right now, where it won't be no surprise or no secret. At the next council meeting---" Which would be eight days off the 12th of January. "---I'm going to recommend to the Council and tell them, if I can get a move and a second, I will vote with them to terminate our part time policeman's employment." I never talked with Fred Brittan, Chief Brittan, again. And I told him, I said, "I don't want it to be no surprise or no secret." That's what I told him then. I walked out and never communicated with Chief Brittan again until I came into that Council meeting there. And did just exactly what I said I was going to do. I brought it up, explained it, and so that's where we stand now. (Advocate's Exhibit #12, deposition of Joe Pete Cannon, pp 41-42) By the time of the council meeting on January 12th, the news of Harper's employment jeopardy was all over town. Chief Brittain felt Harper was doing his job, and after the conversation with Cannon on the 4th, the chief went around talking to the town council members and others. Cannon told Ernest Kelley and Tommy Lewis on the golf course, and when Kelley asked if it was a secret, Cannon replied that it wasn't, as he had already told Chief Brittain. Harper's employment contract with the Town of Branford is a form contract used for other part-time police. It provides that the employee serves at the pleasure of the town council and is under the supervision of the Chief of Police. It also provides: The policeman is further to be answerable to the Town Council for the conduct of duties of such office and shall be subject to suspension or removal by the Town Council, for cause, at will or at pleasure of the Town Council." (Advocate's exhibit #8) The Harper issue was not specifically on the agenda for the January 12th meeting. The agenda is generally prepared on the Friday before the Tuesday meeting. Cannon did not have the clerk put it on the agenda because the "police report" was already on the agenda, as it always is. In fact, when Harper was hired by the council, it was in the "police report" portion of the agenda. The minutes of the meeting accurately and succinctly describe the vote of the council: POLICE REPORT Chief Brittain gave the police report at this time. Council President Joe Cannon brought to the attention of the Council that he has had numerous complaints about the part-time policeman. Cannon said that he had talked with the Police Chief about the high number of speeding tickets and complaints. He felt that the problem had not been resolved and that we did not need the part-time policeman any longer. MOTION MADE BY GARY HOWARD TO TERMINATE THE EMPLOYMENT OF ROY HARPER, PART-TIME POLICEMAN. SECONDED BY ROY BAGLEY. VOTE: IN FAVOR: HOWARD, BAGLEY, AND CANNON. AGAINST: MURRAY AND PURCELL. MOTION CARRIED BY MAJORITY. A couple of local businessmen were present to state they felt the high number of speeding tickets would run-off business. (Advocate's exhibit #7) Roy Harper and some others feel that the vote taken at the meeting was a foregone conclusion and that Joe Pete Cannon had already discussed the issue with other council members. Harper's wife, Linda Harper, was doing an internship in Branford for her criminal justice degree program. She was in Chief Brittain's office in December 1992, while he was on vacation, as she was working on something to do with paperwork procedures, making data entries and reorganizing the evidence room. She saw Joe Pete Cannon and Gary Howard alone in Town Clerk Donna Owen's office with the door closed. She did not overhear any of the conversation and has never personally witnessed any two elected officials discussing the matter. Chief Brittain believes that Cannon must have discussed Harper with other council members before the meeting because he remembers that at some point prior to the meeting, Cannon told him he had the votes to fire Harper. Cannon denies telling the chief he had the votes, but rather says he only said that if he had the votes he was going to fire Harper. Not even Chief Brittain's version of the conversation would support a finding that Cannon had spoken with his fellow council members about their votes. No one testified that "out of the Sunshine" discussions actually took place between Cannon and any other council members. No one actually overheard such discussions. There were, of course, very vigorous discussions of the issue in the town - discussions inspired by the complaints being made, by local businessmen worried that Branford would become another "Ludowici, Georgia", and by Chief Brittain's own advocacy on Harper's behalf. Some days after the meeting, back at Nell's Restaurant, Joe Pete Cannon told L. T. Chesson, Chief Brittain's father-in-law, that Fred let him down, that he wasn't happy with the way Fred was acting and that he (Fred) could be brought before the town council. Cannon was upset with Chief Brittain but not because he didn't take care of Jennifer Kelley's ticket. Cannon felt he presented some town concerns to the chief and Brittain was not responsive. These were some good faith concerns that the unwritten policies of the Branford police were not being even- handedly applied. Avery got two warnings; a young woman who was a model teen and who, understandably, was described as mortified by the entire turn of events and notoriety, got no warning. In summary, the abundant evidence in this proceeding fails to support a finding that Joe Pete Cannon misused his position with regard to the Jennifer Kelley ticket or the termination of Roy Harper. Rather, in response to several complaints, he approached first the police chief, then his fellow elected officials, in the appropriate forum, on an issue which he perceived to be a threat to the small town's harmony and weal.
Recommendation Based on the foregoing, it is, hereby, RECOMMENDED: That the Commission on Ethics issue its final order and public report finding no violation of section 112.313(6), F.S. by Joe Pete Cannon, and dismissing the complaint. DONE AND RECOMMENDED this 6th day of July, 1994, in Tallahassee, Leon County, Florida. MARY CLARK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 6th day of July, 1994. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-3627EC The following constitute specific rulings, pursuant to section 120.59(2), F.S., on the findings of fact proposed by each party. The Advocate's Proposed Findings 1.-2. Adopted in paragraph 1. 3.-4. Adopted in paragraph 9. 5. Adopted in paragraph 12. 6.-7. Adopted in substance in paragraph 12. Rejected as unnecessary. Adopted in substance in paragraph 13. Adopted in substance in paragraph 1. Adopted in substance in paragraph 14. Adopted in part in paragraph 17; otherwise rejected as unnecessary. Adopted in part in paragraph 15; otherwise rejected as contrary to the weight of evidence. Adopted in part in paragraph 18; otherwise rejected as contrary to the weight of evidence. Adopted in part in paragraph 16; otherwise rejected as contrary to the weight of evidence. Adopted in paragraph 6. Adopted in paragraph 25. Adopted in paragraphs 20 and 21. Adopted in paragraph 23. Adopted in part in paragraphs 28 and 29; otherwise rejected as unsupported by the weight of evidence. Adopted in part in paragraph 31; otherwise rejected as unnecessary. Rejected as unnecessary. Adopted in part in paragraph 34; otherwise rejected as unsupported by the evidence. Adopted in part in paragraph 29; otherwise rejected as unsupported by the weight of evidence. Cannon's version of the conversation is adopted as credible and consistent. Adopted in part in paragraph 33; otherwise rejected as unnecessary. Adopted in part in paragraph 36; otherwise rejected as unnecessary or contrary to the weight of evidence. Adopted in part in paragraph 33; otherwise rejected as unnecessary. Adopted in part in paragraph 37; otherwise rejected as unsupported by the weight of evidence. Rejected as utterly without credible supporting evidence. 30.-31. Rejected as contrary to the greater weight of evidence. Respondent's Proposed Findings A.-B. Adopted in paragraph 1. Adopted in paragraph 9. Adopted in part in paragraph 34; otherwise rejected as unnecessary. Adopted in part in paragraph 35; otherwise rejected as unnecessary. F.-P. These paragraphs are substantially argument, comment on the evidence and some legal authority. The findings of fact therein are substantially adopted. COPIES FURNISHED: Stuart F. Wilson-Patton, Esquire Advocate for the Florida Commission on Ethics Office of the Attorney General The Capitol, PL-01 Tallahassee, Florida 32399-1050 David A. Glant, Esquire Post Office Box 2519 High Springs, Florida 32643-2519 Bonnie Williams, Executive Director Ethics Commission Post Office Drawer 15709 Tallahassee, Florida 32317-5709 Phil Claypool, General Counsel Ethics Commission Post Office Drawer 15709 Tallahassee, Florida 32317-5709
Findings Of Fact On or about February 13, 1995, Petitioner, Hillary Sklar, filed Petitioner's Second Amended Petition. Ms. Sklar has challenged the Department's determination that an amendment to the City's comprehensive plan adopted by Ordinance No. 94-2-2 was "in compliance." In the second amended petition Ms. Sklar made the following allegations concerning her standing to institute this proceeding: * * * 2. The Petitioner's address is 11321 Southwest 49th Place, Fort Lauderdale, 33330, in the County of Broward, Florida. * * * 4. On February 8, 1994, the Respondent passed Ordinance NO. 94 -2 -2 authorizing the implement- ation of Land Use Plan Amendment 94 - S - 1. The Land Use Plan Amendment affects property located at 11791 Southwest 49th Street, Cooper City, in the County of Broward. . . . * * * Petitioner's property is located in a section of unincorporated Broward County which abuts and adjoins the property in question. Petitioner's property has been defined by Respondent as an "enclave." Petitioner's property is similarly situated to those of property owners in Cooper City and will be affected more than those property owners located in Cooper City; including, but not limited to, the allegations contained in Paragraphs 10 through 17, inclusive. Petitioner made objections to the ordinance at the February 8, 1994 City Council meeting discussing adoption of the ordinance. . . . * * * Ms. Sklar has still failed to allege that she resides, owns property or operates a business located with a City of Cooper City address or which otherwise is subject to the jurisdiction of the City of Cooper City. The oral objections made by Ms. Sklar were made at a public hearing of the City of Cooper City Council held on February 8, 1994. According to the minutes of that meeting, Ms. Sklar "said the zoning is a done deal and the annexation and sale was a done deal. Why should it be a done deal before the Public Hearing was held, she asked." The factual information contained in the Preliminary Statement of this Recommended Order is hereby incorporated by reference.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Community Affairs enter a Final Order dismissing the Petitioner's Second Amended Petition, filed by Hillary Sklar. DONE AND ENTERED this 24th day of March, 1995, in Tallahassee, Florida. LARRY J. SARTIN Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of March, 1995. COPIES FURNISHED: Edward R. Curtis, Esquire Bruce Botsford, Esquire 1828 S.E. 1st Avenue Fort Lauderdale, Florida 33316 Suzanne H. Schmith Certified Legal Intern Department of Community Affairs 2740 Centerview Drive Tallahassee, Florida 32399-2100 Silvia Morell Alderman, Esquire Suite 1200 106 East College Avenue Tallahassee, Florida 32301 Linda Loomis Shelley, Secretary Department of Community Affairs 2740 Centerview Drive Tallahassee, Florida 32399-2100 Dan Stengle, General Counsel Department of Community Affairs 2740 Centerview Drive Tallahassee, Florida 32399-2100
