The Issue The issue in this case is whether the Petitioner's request to become a candidate for election to the office of County Judge while retaining his state employment should be granted or denied. The final hearing in this case was consolidated, for purposes of hearing only, with the final hearing in two related cases; namely, Case Nos. 87-5313R and 87-5437, At the final hearing all parties presented testimony and the Petitioner also offered six exhibits, all of which were received without objection. At the conclusion of the hearing, all parties agreed to a ten-day deadline for the filing of proposed orders. All parties have filed proposed orders containing proposed findings of fact and conclusions of law. The parties' proposed orders have been carefully considered during the preparation of this recommended order and specific rulings on all proposed findings are contained in the Appendix which is attached to and incorporated into this recommended order.
Findings Of Fact The Petitioner, Mr. Parsons, is employed by the Department of Health and Rehabilitative Services ("DHRS") as an "Assistant Mental Health Hospital Administrator." He is a career service employee of the State of Florida. By memorandum dated October 23, 1987, Mr. Parsons submitted a "Notice Of Intent To Run For Local Political Office." The memorandum was directed to Mr. Parsons' supervisor, Mr. Britton D. Dennis. The memorandum sought approval from DHRS and from the Department of Administration ("DOA"), described the nature of the political office Petitioner is seeking, and described the working hours of the position and the salary. In the memorandum, Mr. Parsons stated that he would not campaign on job time, and would not make use of any of the state's facilities in regard to campaign activities. He also stated his intention to request a leave of absence and that he would resign from his current position with DHRS if elected. The District Administrator of DHRS denied Mr. Parson's request for approval to become a candidate by letter dated October 30, 1987. The Administrator stated that the request was being denied ". . . because your candidacy would be in violation of Chapter 22A-13.002, Personnel Rules and Regulations, Florida Administrative Code, and Section 110.233(4), Florida Statutes." On October 30, 1987, Mr. Parsons' supervisor, Mr. Britton D. Dennis, indicated that he would deny the request for leave of absence because he felt that the position held by Mr. Parsons could not be vacant for an extended period of time. Mr. Parsons responded that he nonetheless desired to be a candidate for the local political office, and that he would not campaign on the job, nor use state facilities for campaign purposes. By letter dated November 5, 1987, the Secretary of DOA stated that she was unable to approve Mr. Parsons request because it had been denied by DHRS, and because, if elected, the duties would be performed during assigned working hours. The Secretary of DOA cited DOA Rule 22A-13.002(4)(a) and (b), Florida Administrative Code. This proceeding ensued. Mr. Parsons filed a petition challenging the denial of his request by DHRS, a petition challenging the denial of his request by DOA, and a petition challenging the validity of the DOA rules that had been cited in support of the denials. Mr. Parsons serves as the Administrator of Forensic Services at Florida State Hospital in Chattahoochee, Florida. Mr. Parsons has administrative responsibility for the day-to-day operations of the Forensic Unit. The Forensic Unit houses psychiatric patients who have been placed in the hospital in connection with criminal charges. These patients have been found incompetent to stand trial on criminal charges, have been committed as "mentally disordered sex offenders," or have been hospitalized after having been found not guilty of criminal charges by reason of insanity. Mr. Parsons answers directly to the Administrator of Florida State Hospital. Mr. Parsons supervises approximately 700 employees. Mr. Parsons has performed his job duties in an exemplary manner. He has always received the highest evaluations and he has been an innovative leader of the Forensic Unit. Mr. Parsons is seeking to stand for election to the position of County Judge in Gadsden County, Florida. The position of County Judge is a full-time position. If elected, Mr. Parsons could not continue in his employment with DHRS. He has clearly stated that if elected he would resign from his employment with DHRS. Mr. Parsons will conduct his campaign activities in such a manner as not to interfere with his employment with DHRS. If DHRS prefers, he will take a leave of absence without pay from his employment during the course of the campaign. If his supervisor does not wish for him to take a leave of absence, Mr. Parsons will conduct his campaign without a leave of absence. In either event, Mr. Parsons will conduct no campaign activities while on the job and he will utilize no state facilities in his campaign. It is possible that Mr. Parsons' job with DHRS would make it difficult for him to campaign at certain times. In the event of such conflicts, Mr. Parsons will give precedence to his job responsibilities and will forego campaign activities to the extent they conflict with the fulfillment of his job responsibilities. There are limited times during which Mr. Parsons serves as the Administrative Officer of the Day for Florida State Hospital, as well as limited times when he serves as the Administrative Officer of the Day for the Forensic Unit. During these times he is required to be in contact with the hospital by "beeper" on a twenty-four hour basis. The beeper service used by the hospital for Administrative Officers of the Day allows the officer to be contacted at any location in Gadsden or Leon County. Mr. Parsons' campaign activities would be conducted in Gadsden County only and he would be available to respond as Administrative Officer of the Day to the same extent that he and other employees who share this duty are presently available. Mr. Parsons' campaign activities would not conflict with his job responsibilities with DHRS. Indicative of his ability to conduct outside activities without interfering with his job responsibilities at DHRS is the fact that Mr. Parsons has conducted a part-time private practice of law during the past three years without any conflict with his DHRS job responsibilities. The Department of Administration has adopted rules regarding requests to run for or hold local public office. Those rules provide, in pertinent part, as follows: 22A-13.002 Statements of Policy Section 110.233(4)(a) further provides that no employee shall hold or be a candidate for public or political office while in the employment of the state unless: The employee is seeking or holding a local public office and; Such candidacy and office is authorized by the employee's agency head and approved by the Department of Administration as involving no interest which conflicts or activity which interferes with his/her state employment. Candidacy for or holding a local public office shall be presumed to involve an interest which conflicts with an employee's state employment when the campaign or the office, if elected, is likely to give rise to a situation in which regard for a private or local interest tends to lead to a disregard of the employee's duty as a state employee. Candidacy for or holding local public office shall be presumed to involve activities which interfere with an employee's state employment in the following instances: The office is a full-time office. Campaign or, if elected, office activities are performed during the employee's assigned working hours with the State. Campaign or, if elected, office activities will involve the use of State space, personnel, time, equipment, or supplies. In its application of the foregoing rule provisions, DOA reads those provisions in conjunction with Rule 22A-13.0031, Florida Administrative Code, regarding procedures. DOA has interpreted and applied the presumptions in the foregoing rule provisions as rebuttable presumptions, rather than as conclusive presumptions. On at least one prior occasion since the challenged rule provisions went into effect, the DOA and the DHRS granted approval for an employee of DHRS to become a candidate for the office of County Judge without requiring resignation from state employment.
Recommendation For all of the foregoing reasons, it is recommended that the Department of Health and Rehabilitative Services enter a final order denying the Petitioner's request to become a candidate for election to the office of County Judge DONE AND ENTERED this 19th day of February, 1988, at Tallahassee, Florida. Michael M. Parrish, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of February, 1988.
Findings Of Fact The Respondent is a Public Employer within the meaning of Florida Statutes Section 447.203(2). Lloyd A. Perry was formerly an employee of the Respondent, and a public employee within the meaning of Florida Statutes Section 447.203(3). Dana E. Pratt was formerly an employee of the Respondent, and a public employee within the meaning of Florida Statutes Section 447.203(3). Prior to February 17, 1976, Lloyd A. Perry was employed by the Citrus County Road Department for a period of over four years. Immediately prior to the time that his employment was terminated, Perry was a roller operator. Except for rare occasions when he performed work as a flagman, or other work in conjunction with his roller work, Perry operated a tandem road roller. For the several months prior to February, 1976, Perry had continuously operated the same roller machine. Prior to February, 1976, none of Perry's supervisors informed him that his work was unsatisfactory, reprimanded him for performing work in an unsatisfactory manner, or indicated to him in any way that his job was in jeopardy for unsatisfactory performance of his duties. Dana E. Pratt had been employed by the Citrus County Road Department for approximately five years prior to February, 1976. For four years prior to that date he had been a motor grader operator. Pratt had annually received formal evaluations and his evaluations had always been very good. Prior to February, 1976, Pratt had never been criticized for below average or unsatisfactory work. He had never received any written reprimand for unsatisfactory performance on the job. From approximately December, 1973 until February, 1976, Perry had operated the newest grader machine in use by the Citrus County Road Department. No one else had operated the machine since it was acquired by the Citrus County Road Department. During February, 1976, Thomas Hutchinson was the Citrus County Road Superintendent. William Hitt was thee Assistant Road Superintendent. Hutchinson and Hitt served under the direction of the Citrus County Board of County Commissioners. Perry, Pratt, and numerous other employees of the Citrus County Road Department had, prior to February, 1976, become dissatisfied with conditions in the Road Department, primarily the manner of direction given the department by Hutchinson and Hitt. On Sunday, February 8, 1976, Perry drafted a petition specifying numerous grievances against Hutchinson and Hitt. It was his intention to secure the signatures of employees of the Road Department on the petition, and to present it to the Board of County Commissioners. Perry sought the assistance of County Commissioner DeBusk in drafting the petition. DeBusk offered several suggestions and his daughter typed the petition for Perry. Perry secured six or seven signatures on that Sunday. He was the first person to sign the petition, and Dana Pratt was the third. On Monday, February 9, Pratt informed his office that he had business to attend to and would not be at work that day. He did not claim sick leave for the time he missed. Prior to work and during the lunch hour he called as many employees of the Road Department as he could. After working hours he waited at a business establishment called the "Country Store" which was located in close proximity to the place where Road Department employees checked out of work. Forty-six employees of the Road Department signed the petition. Dana Pratt assisted in soliciting people to sign the petition. There was no evidence offered at the hearing from which it could be determined that those persons signing the petition did so other than freely and voluntarily. On Tuesday, February 10, 1976, Perry called his supervisor, Mr. Hutchinson, and told him that he had business to attend to. Hutchinson asked him if he was going to solicit more signatures. Perry told him that he was not. The Board of County Commissioners was meeting on that date, and Perry presented the petition to the Board. Members of the Board discussed the petition at length during the meeting. One commissioner asked Perry if he was big enough to go back to work and forget about the matter. Perry said that he was. On February 11, 1976 Perry returned to work at the regular time. Rather than being assigned to his regular duty as a roller operator, he was assigned to flag traffic for a grader operator. He continued in that capacity until Tuesday, February 17. On that date, at approximately 11:00 or 11:30 A.M. Tom Morton, the grader foreman, informed Perry that his employment was terminated as of 1:00 P.M. on that date. Both Morton and William Hitt told Perry that they did not know why he was fired. Dana Pratt attended the County Commission meeting on February 10. He was asked about whether he threatened a Road Department employee named Langley with respect to signing the petition. Pratt told the County Commission that he did not threaten Langley, and no evidence was offered at the hearing to establish that he did. On February 12, 1976, Pratt used the new grader machine that he had been using for some time prior thereto. At the end of that day his supervisors informed him that he would be using the oldest machine in the Department thereafter. He began using it on February 13. It took some time to get it started on that date. It also took some time to get it started on Monday, February 16. This was an old machine, and had been difficult to start for some years prior to the time that it was assigned to Pratt. At 12:30 on February 17, 1976, Tom Morton informed Pratt that his employment was terminated as of 1:00 P.M. on that date. Pratt was never given any reasons for his termination. On February 17, 1976, the Citrus County Board of County Commissioners acted to terminate the employment of Perry and Pratt. These actions were taken upon the recommendation of Mr. Hutchinson. Ostensibly the reason for Pratt's termination was that he had marked out on sick leave on a day when he was not sick. Ostensibly the reason for Perry's termination was that he had been missing from the job for approximately an hour. The evidence would not support a finding that Perry and Pratt were fired for these reasons. These reasons offered by Hutchinson, and followed by the Board of County Commissioners, were used as a ruse. On February 18, 1976, the day after Pratt and Perry were fired, Hutchinson called a meeting of all employees of the Road Department. Hutchinson told the employees that he had nothing to do with the termination, but he also told them that he would tolerate no more petitions and that if anyone did not like working conditions at the Road Department they could leave. He said that he had four County Commissioners in his pocket, and he reminded the employees that unemployment in Citrus County was high. He told the employees that he would take care of any petitions they distributed. During the week the petition was distributed, Hutchinson told one employee of the Road Department, James Johnson, that Johnson could be put in jail for signing the petition. During that same week he told his assistant superintendent, William Hitt, that all of the men who signed the petition had to go. After Perry and Pratt were fired, Hutchinson told Hitt that he got two, and he would get the rest. The basis for Hutchinson's recommendation to the Board of County Commissioners that Perry and Pratt be terminated was the fact that they participated in the distribution of the petition, and presenting it to the Board of County Commissioners. There was no evidence offerred at the hearing to indicate that any members of the Board of County Commissioners knew Hutchinson was presenting false reasons for the terminations; however, they did act to adopt the recommendation. The Board of County Commissioners did know that Pratt and Perry were among the leaders in distributing the petition highly critical of Hutchinson's work, and was clearly on notice that Hutchinson may have ulterior motives in recommending their dismissal.
The Issue The issues in this proceeding are whether Respondent violated Chapter 475, F.S., by: Being convicted of a crime involving moral turpitude. (Subsection 475.25 (1)(f), F.S.) Being confined in a federal prison; (Subsection 475.25(1)(n), F.S.) and Failing to notify the Florida Real Estate Commission in writing within 30 days of his conviction. (Subsection 475.25(1)(p), F.S.)
Findings Of Fact Daniel Reagan Lee is licensed as a real estate salesman in the State of Florida under License No. 0145478. He renewed his non-active salesman license on October 1, 1982, and two years later the license expired. It has not been renewed. (Petitioner's Exhibit #1) On July 1, 1985, in a trial by jury, in the U.S. District Court for the Middle District of Florida, Mr. Lee was found guilty of three counts of a Grand Jury criminal indictment. He was found not guilty of one count of the same indictment. (Case No. 84-95-Cr-T-15)(Petitioner's Exhibit #3) The convictions were for importation of marijuana in violation of Title 21, U.S.C., Section 952 and Title 18, U.S.C., Section 2; conspiracy to possess with intent to distribute marijuana, in violation of Title 21, U.S.C., Section 846; and possession with intent to distribute marijuana, in violation of Title 21, U.S.C., Section 841(a)(1) and (2). (corrected version of Petitioner's Exhibit #3, filed by leave of the Hearing Officer on October 23, 1986.) On July 26, 1985, Mr. Lee was sentenced by U.S. District Judge William J. Castagna to three years of imprisonment and two years of special parole. (Petitioner's Exhibit #3.) On March 25, 1986, the Florida Real Estate Commission received a letter from Daniel Lee's mother, advising them of her son's conviction and incarceration. (Petitioner's Exhibit 5a, transcript, p. 11.) Daniel Lee is now and has been since August 1986, serving his sentences at the Federal Correctional Institution in Lexington, Kentucky. (Respondent's Answer dated July 5, 1986, Petitioner's Exhibit #5a.)
Recommendation Based on the foregoing, it is hereby RECOMMENDED that a final order be entered finding Daniel Lee guilty of violations of Subsections 475.25(1)(f), (n) and (p), F.S., and revoking his non- current inactive real estate salesman's license. DONE and RECOMMENDED this 17th day of December, 1986, in Tallahassee, Florida. MARY CLARK Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 17th day of November, 1986. COPIES FURNISHED: Susan Hartmann, Esquire Division of Real Estate Department of Professional Regulation 400 W. Robinson Street Orlando, Florida 32801 Daniel R. Lee, 04314-018 Antaeus Unit Post Office Box 2000 Lexington, Kentucky 40512 Daniel R. Lee c/o Elizabeth C. Lee 1025 Hillsboro Avenue Ft. Myers, Florida 33905 Harold Huff, Executive Director Division of Real Estate Department of Professional Regulation 400 W. Robinson Street Orlando, Florida 32801 Fred Roche, Secretary Department of Professional Regulation 130 N. Monroe Street Tallahassee, Florida 32301
The Issue Whether Petitioner's application for licensure as a community association manager by examination should be granted.
Findings Of Fact Petitioner, Miguel A. Torres (Torres), admitted to being sentenced on August 22, 1988, to one-year probation based on his plea of nolo contendere to the charge of carrying a concealed weapon. In July 1990 Torres pled guilty to battery on a law enforcement officer and disorderly intoxication. He was sentenced to jail for three days and was given three-days credit for time served prior to the imposition of the sentence. On October 3, 1991, Torres was found guilty of escape, resisting an officer without violence to his person, and criminal mischief based on Torres' plea of nolo contendere to those charges. On October 16, 1992, Torres was adjudicated guilty of aggravated assault with a deadly weapon and battery based on his plea of nolo contendere. He was placed on probation for three years. On October 16, 1992, Torres pled nolo contendere to three counts of unemployment compensation fraud and one count of grand theft. The court adjudicated him guilty of those charges, withheld sentencing, and placed Torres on probation for three years. On February 2, 1994, Torres was adjudicated guilty of driving under the influence based on his plea of guilty to that offense. On February 11, 1994, Torres' probation was revoked, and a sentence of three years was imposed for the crimes of aggravated assault with a deadly weapon and battery. The sentence was to run concurrently with the sentences for escape, resisting arrest without violence, criminal mischief, and driving under the influence. Torres was incarcerated in the state prison system from April 5, 1994, through June 30, 1995. In his application to the Department of Business and Professional Regulation, Community Association of Managers (Department), Torres included letters of appreciation that he received in 1976 relating to his performance in the Puerto Rico Army National Guard; a letter of appreciation received from the Board of Directors of the Sunset Villas Phase III, Assn., Inc, in 1989; a recommendation letter from the General Manager of the Collins Plaza Hotel, dated April 11, 1997; a letter of appreciation from the Chairman of COM'IN dated November 1997, relating to his duties at the Collins Plaza Hotel; and a letter of appreciation from the Department of Veteran Affairs for Torres' assistance as a volunteer at the VA Medical Center during Hurricane Andrew. Torres also furnished to the Department a letter from the Board of Directors of Mar Del Plata Condominium Assn., Inc., stating that Torres had demonstrated his professionalism to their satisfaction and requesting that Torres' date of examination be expedited so that Torres could accept the Board of Directors' offer of employment as manager of the condominium association. Torres did not indicate on his application whether his civil rights had been restored after his felony convictions, and no evidence was presented at the final hearing to show that his civil rights had been restored.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that Miguel A. Torres lacks good moral character and denying his application for licensure as a community association manager. DONE AND ENTERED this 21st day of August, 1998, in Tallahassee, Leon County, Florida. COPIES FURNISHED: Edward Broyles Executive Director SUSAN B. KIRKLAND 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 21st day of August, 1998. Regulatory Council of Community Association of Managers Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Lynda L. Goodgame General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Thomas G. Thomas Assistant General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0750 Miguel A. Torres, pro se 2899 Collins Avenue Apartment No. 1420 Miami Beach, Florida 33140
The Issue Whether Petitioner, Kay McGinn, willfully violated Subsection 106.07(5), Florida Statutes (2001), when she certified the correctness of a campaign treasurer's report that was incorrect, false, or incomplete because it failed to disclose an in-kind contribution by Frank Furman for the use of telephones used by Petitioner and her campaign volunteers in offices that Mr. Furman owned.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing, the following findings of fact are made: Petitioner is the Mayor of Pompano Beach, Florida. She ran unsuccessfully for Pompano Beach City Commission in 1996. Her campaigns for the same office in 1998, 2000, and 2002 were successful. The alleged offense took place during the 2002 election campaign. Petitioner is an intelligent, conscientious public servant. She is familiar with the Florida election law and is sensitive to her obligation to follow the law and diligent in her attempt to do so. During the 2002 campaign, Frank Furman, a long-time Pompano Beach business man who enjoys an excellent reputation, offered the use of his business offices to Petitioner for campaign activities. Petitioner chose to use Furman's office on six to eight occasions to make campaign-related local telephone calls. Typically, Petitioner and five or six volunteers would spend about one hour in the early evening calling Pompano Beach voters encouraging them to vote for Petitioner. Mindful of the election law requiring the reporting of "in-kind" contributions, Petitioner asked Mr. Furman the value of the use of his telephones for reporting purposes. Furman advised Petitioner that the use of his telephones had "no value." In reporting "in-kind" contributions, Petitioner's practice was to ask the contributor to provide an invoice reflecting the "fair market value" of the "in-kind" contribution. Armed with the invoice, she would then report the "in-kind" contribution. "Fair market value" is an economic concept used most frequently in reported Florida cases when referring to the value of real property taken in condemnation actions or in determining restitution in criminal cases. Numerous definitions are found. Typically, the definitions involve "a willing buyer and a willing seller, fully informed as to the value of the object of the transaction, neither being under any compulsion to buy or sell." Respondent's Statement of Findings, which was analyzed by Petitioner's expert witness, offers an amortized cost to Mr. Furman for use by Petitioner and her volunteers of the telephones. This amortized cost is apparently advanced as evidence of "fair market value" or "attributable monetary value." Mr. Furman pays a fixed-rate of slightly less than $1,500.00 per month for the use of 32 to 33 telephone lines. This means that each line costs approximately $46.87 per month. Assuming 30 days per month, the daily cost per line is $1.56. Assuming 24-hour days, the hourly cost per line is $0.065. Further assuming that six volunteers used one telephone for one hour on eight different days, the result is 48 hours of line use. The resulting amortized use cost, given the known use by Petitioner and her campaign volunteers, is $3.12. Amortized use cost is not fair market value. Neither an "attributable monetary value" nor a "fair market value" of Petitioner's use of Mr. Furman's telephones was established. To the contrary, it was established that there was no "market" for access to six to eight telephones for one hour, one night per week. While it is assumed that Petitioner would benefit from telephone calls made by her supporters, whether made from their individual homes or from some group setting, the evidence failed to established that Petitioner's use of Mr. Furman's telephones had any "attributable monetary value" or "fair market value." Given that the use of the telephones by Petitioner was during non-working hours when the telephones would normally be idle, it is not surprising that Mr. Furman advised Petitioner that there was no cost associated with the use of his telephones. His monthly telephone bill would be the same whether Petitioner used his telephones or not. Nor is Petitioner to be faulted for relying on the contributor's assessment of the value of the "in-kind" contribution of the use of the telephones. The real value to Petitioner's campaign was the use of Mr. Furman's office as a meeting place. As a practical matter, each volunteer could have taken a list of the telephone numbers of Pompano Beach voters to their respective homes and made the telephone calls from their homes. This was not a professional "phone bank," sometimes used in political campaigns where trained callers use scripted messages designed to elicit voter preferences and where the candidates receives "feed-back" on salient issues. A "fair market value" can be easily established for such services as they are common in the market place. The evidence suggests that campaign volunteers making telephone calls to registered voters from their homes or from someone's office is a common practice in political campaigns in Florida. It is also suggested that this common practice is not reported as a campaign contribution.
Recommendation Based upon the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that the Florida Elections Commission enter a final order finding that Petitioner, Kay McGinn, did not violate Subsection 106.07(5), Florida Statutes, as alleged, and dismissing the Order of Probable Cause. DONE AND ENTERED this 13th day of January, 2004, in Tallahassee, Leon County, Florida. S JEFF B. CLARK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 13th day of January, 2004. COPIES FURNISHED: Eric M. Lipman, Esquire Florida Elections Commission Collins Building, Suite 224 107 West Gaines Street Tallahassee, Florida 32399-1050 Stuart R. Michelson, Esquire Law Office of Stuart R. Michelson 200 Southeast 13th Street Fort Lauderdale, Florida 33316 Barbara M. Linthicum, Executive Director Florida Elections Commission The Collins Building, Suite 224 Tallahassee, Florida 32399-1050 Patsy Rushing, Clerk Florida Elections Commission The Collins Building, Suite 224 Tallahassee, Florida 32399-1050
Findings Of Fact At all pertinent times, the Department of Community Affairs, an executive agency of state government, employed more than 15 persons. During fiscal year 1985-86, 398 black persons and 994 white persons applied for employment with the Department of Community Affairs. Of these, 26 black persons and 101 white persons were hired. Of the white applicants, 10.16% were hired while only 6.53% of the black applicants were hired. Petitioner's Exhibit No. 1. The evidence does not reveal the qualifications of any of these applicants. Differential hiring rates for black and white applicant pools persisted in subsequent years, when looked at on a Department-wide basis, even though respondent has formally adopted affirmative action plans and has consistently met hiring goals for black candidates. Lay Off A black woman, petitioner Michelle Bryant worked for the Department of Community Affairs from January 5, 1983, until her lay off, effective at the close of business September 30, 1987. She and four others, including Leonard Case, a white man, lost their jobs in the course of a reorganization that transferred "the Section 8 Housing Programs" in which they worked to another department of state government. By letter dated September 10, 1987, Ms. Bryant was informed of the possibility that she had certain "bumping rights": As a permanent career service employee, you are afforded the right to request a demotion or reassignment in lieu of this lay off ... A demotion or reassignment request will be accomplished if there are other employees in appropriate classes who have a lesser amount of retention points than you. Petitioner's Exhibit No. 5. Responding with a memorandum to Bud Parmer dated September 22, 1987, Ms. Bryant asked to be considered for another position within the Department of Community Affairs. Unlike Ms. Bryant, Mr. Case, who began work with respondent on August 11, 1987, had not attained permanent status in the career service as of September 30, 1987. New Jobs Sought When told of the lay off, affected employees were advised to seek other employment. Taking this advice to heart, Ms. Bryant visited the personnel office in the Department of Community Affairs twice weekly, during the fall of 1987. She also went to the Department of Administration, in an effort to be listed as eligible for any job in state government for which she was qualified. As early as 1984, she had succeeded in being listed by the Department of Administration as eligible for positions described as "planner II at HRS," "planner II in intergovernmental relations," and "planner II in environmental resources." On October 22, 1987, the Department of Administration found Mr. Case qualified to hold a "planner II" position, a position which has not been designated as entry level. The parties have stipulated that Ms. Bryant is also in fact so qualified "by reason of her education, experience, and training." When, on November 2, 1987, respondent announced two vacant "planner II" positions, one (No. 00136) in Apalachicola and one (No. 00250) in respondent's Bureau of Public Safety Management in Tallahassee, Ms. Bryant applied for both. Because her telephone had been disconnected, she was not interviewed for the job in Apalachicola. The Bureau in Tallahassee advised her nobody would be hired to fill the other position, because "the Bureau had decided it was not going to administer the program." Prehearing stipulation, page 3. When respondent's Bureau of Public Safety Management advertised two more vacant "planner II" positions (Nos. 00235 and 00244) on November 5, 1987, Ms. Bryant again applied. But, in accordance with applicable rules, these positions went to employees of the Bureau of Public Safety Management who had been subjects of another lay off there. Another Vacancy After a "planner II" vacancy (No. 00570) arose in the Bureau of Planning, within respondent's Division of Emergency Management, the Division requested from respondent's personnel office a certificate listing people eligible to fill a "planner II" position. In contrast to the procedure others within the Department of Community Affairs followed the preceding month, no job announcement nor any other public notice of vacancy No. 00570 was ever given. On December 3, 1987, at respondent's personnel office, a computer operator obtained a print-out of a "certificate of eligibles" listing names of more than three people who, according to the Department of Administration, were eligible to work in "planner II" positions. For reasons perhaps best known to the Department of Administration, Michelle Bryant, although having been listed as a "planner II" in three specific areas, was not listed under the general category "planner II." Mr. Case was the only employee respondent had laid off whose name appeared on the certificate. Case Chosen Before it was decided to obtain a "certificate of eligibles," employees responsible for choosing the new hire discussed Mr. Case with Gordon Guthrie (T.149,150) who, as director of respondent's Division of Emergency Management, ultimately authorized hiring Mr. Case for position No. 00570. After an interview, the only one conducted, Mr. Case was hired on December 4, 1987. He began work in his new job on December 7, 1987. All of respondent's employees involved in making the decision to hire Mr. Case are white. Brenda Brown, a black temporary employee, testified that the bureau chief knew of her interest in the job Mr. Case eventually got, at the time he or the division director decided against advertising and in favor of procuring a certificate of eligibles. But the evidence did not show that the decision makers were told either that Brenda Brown or that Michelle Bryant was not listed on the certificate of eligibles, before they asked the personnel office to obtain the list. On the other hand, those responsible for filling the position did not make any commitment to proceeding without advertising, until after they saw the list. At least no such commitment was irrevocable. Department officials testified that it was necessary to use a "certificate of eligibles," instead of advertising the vacancy, so they could fill the position quickly, in order to avoid forfeiture of federal funds, payable under a contract between the Department and a federal agency, that required a certain minimum number of workers to be on the project. The Department of Community Affairs used this method of hiring with some frequency. It was not clear how much notice the Department had that a vacancy in position No. 00570 would arise. Because she did not know of the vacancy, Ms. Bryant never made formal application specifically for the position Mr. Case filled. As far as the evidence shows neither she nor the Department of Community Affairs was responsible for the snafu at the Department of Administration that kept her name off of the "certificate of eligibles." But her desire to work at the Department of Community Affairs as a "planner II" was well known to the decision makers. When Ms. Bryant learned what had happened, she felt something was amiss, and filed a complaint with the FCHR. Only after an ensuing hearing did the then personnel director of the Department of Community Affairs look over the certificate of eligibles. He was surprised to find Ms. Bryant's name absent, because of her diligence in pursuing jobs at the Department and in state government generally. Other Work Found After her lay off by the Department of Community Affairs, Ms. Bryant found another job, working for the Department of Health and Rehabilitative Services. This job was not as well paid as the job that Mr. Case got at the Department of Community Affairs. Even with a recent raise, she does not make as much as she would have made, if she had gotten the job given Mr. Case and progressed as he did to a "community assistance specialist."
Recommendation It is accordingly, RECOMMENDED: That respondent deny the petition for relief from an unlawful employment practice. DONE and ENTERED this 9th day of November, 1989, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of November, 1989. APPENDIX Petitioner's proposed findings of fact Nos. 1 through 14, 16 through 24, 27, 33, and 34 have been adopted, in substance, insofar as material. Petitioner's proposed finding of fact No. 15 was not proven. Petitioner's proposed findings of fact Nos. 25, 26, 28 through 32, 35 and 36 relate to subordinate matters. With respect to respondent's proposed finding of fact No. 1, petitioner was an applicant despite not being listed. Respondent's proposed findings of fact Nos. 2 through 10, 15, and 19 have been adopted, in substance, insofar as material. With respect to respondent's proposed finding of fact No. 11, petitioner could have been hired if respondent had advertised the position. With respect to respondent's proposed finding of fact No. 12, it was only Mr. Irwin who, as far as the proof showed, did not realize Ms. Bryant's name was not listed when Mr. Case was hired. He was not shown to have participated in the hiring decision. Respondent's proposed findings of fact Nos. 13, 17, and 18 are properly proposed conclusions of law. With respect to respondent's proposed finding of fact No. 14, it was not clear how far ahead the agency knew the vacancy would occur. With respect to respondent's proposed finding of fact No. 16, things did not necessarily occur in that order. Respondent's proposed findings of fact Nos. 20 through 24 pertain to subordinate matters. COPIES FURNISHED: Thomas G. Pelham, Secretary 2740 Centerview Drive Tallahassee, FL 32399 Ben R. Patterson, Esquire Patterson and Traynam 1215 Thomasville Road Tallahassee, FL 32315 Andrea Bateman, Esquire 2740 Centerview Drive Tallahassee, FL 32399-2100
The Issue This cause arose upon a denial of an application for licensure by the Florida Real Estate Commission. Denial was based upon the applicant's answer to question six of the licensing application regarding his prior criminal record under authority of Section 475.17(1), as well as 475.25(1)(b), Florida Statutes (1979). Specifically, the Florida Real Estate Commission notified the Petitioner that the denial of the application was based upon the following: 1963 conviction of armed robbery 1965 conviction of false police report 1967 conviction of worthless check 1968 and 1971 convictions for public intoxication 1971 conviction for assault and battery 1976 and 1980 convictions for public intoxication 1982 indecent exposure charge The Petitioner requested a formal hearing to be permitted the opportunity to present testimony and evidence in support of his petition for application for licensure, and the cause ultimately came on for hearing on the above date after completion of discovery. At the hearing, the Petitioner presented the testimony of two witnesses, including himself, as well as the testimony of a witness from out of state who was unable to attend, whose testimony was admitted in the form of an affidavit stipulated into evidence by the parties. The Respondent presented one witness. The Petitioner presented six exhibits, all of which were admitted into evidence. The Respondent presented four exhibits which were admitted into evidence. At the conclusion of the hearing, the parties requested the benefit of a transcript and the right to file proposed findings of fact and conclusions of law. Proposed findings of fact and conclusions of law were timely filed by the Respondent. All proposed findings of fact and supporting arguments of the parties have been considered. To the extent that the proposed findings and conclusions submitted by the parties, and the arguments made by them, are in accordance with the findings, conclusions and views stated herein, they have been accepted, and to the extent that such proposed findings and conclusions of the parties, and such arguments made by the parties are inconsistent therewith, they have been rejected. Certain proposed findings and conclusions have been omitted as not relevant or as not necessary to a proper determination of the material issues presented.
Findings Of Fact The Petitioner is a native of Ohio, having lived in that state until coming to the Ft. Myers area to live and enter business in 1980. Some twenty- one years ago, when he resided in Ohio at the age of thirteen years, he was charged with armed robbery, according to his arrest record in evidence. On that occasion, he was placed in the custody of the Ohio Youth Commission and placed in an industrial school for boys. Again, on September 9, 1965, he was arrested for making a false police report and was returned to the custody of the Ohio Youth Commission as a juvenile offender once again. While originally in the industrial school for boys in Ohio pursuant to the first arrest, he was not permitted to attend high school classes because of a severe vision problem (nearly legally blind) and the school had no facilities for education of those with his visual handicap. He was tutored instead by a priest, apparently at the school. Prior to that, he had been formally educated up to and including approximately three months of high school. In Ohio, at that time, these acts were considered to be "juvenile acts of delinquency" and not classed as criminal convictions. Between May 24, 1968, and June 24, 1980, the Petitioner had seven arrests for public intoxication. Those arrests culminated in the payment of $25 fines, and in one instance, a $40 fine with no court appearance. In effect, the bond was estreated. On July 20, 1971, he was arrested for assault and battery and paid a $100 fine, again with no court appearance. All of these arrests, with the exception of the original armed robbery juvenile delinquency instance, were misdemeanors. All occurred in Dayton, Ohio. On November 23, 1982, by Order of the Montgomery County, Ohio, Court of Common Pleas, Juvenile Division - the records of David Fugate were expunged. According to that Order, the court found that rehabilitation of the applicant, David Fugate, had been attained to a satisfactory degree and, accordingly, ordered that all records pertaining to David Fugate be sealed; that the proceedings in the case be deemed to have never occurred and that all index references to said applicant be deleted. This Order is somewhat ambiguous in that it mentions "case" in the singular, but then mentions all records pertaining to David Fugate and all "index references" referring to the applicant being deleted from his record and, further, that all copies of fingerprints or pictures taken of the applicant "in this cases" should be destroyed. It is not clear whether an expungement of all record of offenses committed in Ohio through 1980 was ordered, or merely of those matters involving the juvenile division of the court; that is, the three offenses occurring in 1963, 1965 and 1967. In any event, the Court's expungement of the applicant's "record in this court" is found to mean all three juvenile court offenses, especially in view of the applicant's and his corroborating witness' testimony. Further, with regard to the issue raised by the public intoxication charges (to the extent they may not have been expunged by the Order represented by Respondent's Exhibit 1), the Petitioner acknowledges that he had a drinking problem, related to marital difficulties, during his ten years of marriage. All those cases were misdemeanors and generally the subject of fines, not involving court appearances. Petitioner has since overcome his drinking problem, as evidenced in his unrefuted testimony, and that of witness Lawrence who has worked with him for approximately ten years and knows his personal habits quite well. It was thus established that the Petitioner has never had a problem with alcohol which interfered with his business and his relationship with the public and, indeed, his employer, witness Lawrence, was never aware that he had a drinking problem at all. Mr. Lawrence has employed the Petitioner over a period of approximately ten years in a finance company, loan and collection business. The Petitioner often was required to handle and transport large sums of money and never committed any dishonest act or irregularity concerning his handling of his employer's money. He has loaned several thousand dollars to the Petitioner and has been timely paid when any amounts came due and would not hesitate to enter into business dealings with the Petitioner in the future. Donald Jansen, a former professor in the areas of communication and criminal justice at Ohio State University, has known the Petitioner for approximately eighteen years. He first became acquainted with the Petitioner when the Petitioner was made a ward of the State of Ohio and placed in the Ohio Youth Commission Boys' Industrial School, where Mr. Jansen was employed at the time. One of his duties was to orient and counsel boys with regard to life at the school. He felt that David, the Petitioner, had a potential that most of the boys under his care did not have and he has maintained regular contact with him ever since. Petitioner worked with him as a volunteer in Dayton, 0hio, in the area of community contact work with youth in a salaried position and exhibited great concern for others, and in assisting young men who were in trouble, to better their lives. Mr. Jansen has observed Petitioner over the years and has observed the change in his attitude toward himself and others. He is more reliable than most people Mr. Jansen has dealt with and they have had financial dealings together in which the Petitioner has been honest and ethical in every way. He has never betrayed a trust and Mr. Jansen has placed thousands of dollars in the Petitioner's care in these financial dealings without regret. In the near future, he plans to engage in business with the Petitioner with proceeds of a large wheat farm which he plans to liquidate in the State of Nebraska. The Petitioner's conduct and attitude over the years shows that the Petitioner is determined to overcome his visual handicap and become a productive member of society, rather than seek public assistance and that he has genuinely rehabilitated himself in the long years since his more serious juvenile offenses. In that connection, this witness corroborated the testimony of the Petitioner in establishing that, indeed, the expungement order went to all three juvenile offenses, and, in the words of the court in that order, "the proceedings in such case be deemed never to have occurred." It is noted that the Petitioner, himself, established that his problem with alcohol was related to his domestic difficulties over a period of years and that with the resolution of those difficulties (his divorce) he has concomitantly overcome his alcohol problem. It has been clearly established that any problem with alcohol in the past has not interfered with his business and financial dealings. Indeed, his reputation for responsible conduct of his business affairs since arriving in Florida is demonstrated by the fact that he has recently been approved for a real estate mortgage loan in the amount of fifty-five thousand ($55,000) dollars together with an unsecured signature loan in excess of one thousand ($1,000) dollars. The Petitioner has achieved some financial success by his work in real estate investments, owning several parcels of real estate himself and serving as President of Florida Credit and Investment Corporation. The Petitioner's arrest in March, 1982, on a charge of indecent exposure, as freely admitted by the Petitioner, involved urination in a public place. The charge was nol prossed and the court informed the Petitioner that that event rendered the matter to be "as if it never occurred." Because of this belief, the Petitioner failed to list it on his application in answer to question number six. The Petitioner listed all other past charges or arrests, some of which were more serious, and failed to list the March, 1982, charge because he did not feel it relevant since the court informed him that he could conduct himself as if had not occurred. There was no showing of any facts surrounding that arrest which would demonstrate that the Petitioner is clothed with a character which might pose a danger to the interests of the public and investors if his registration and licensing were granted. In short, it has been established that the Petitioner has clearly attained rehabilitation from his earlier, aberrant behavior and that a sufficient lapse of time and subsequent good conduct reveals that the Petitioner's character is now such that he can be safely trusted with the affairs and finances of funds of members of the public who entrust their real estate and financial affairs to him in the capacity of a licensed realtor. The Petitioner has taken and passed the required real estate educational course and passed the test administered at the end of that course as a prerequisite to being admitted to the Florida real estate examination.
Recommendation Having considered the foregoing Findings of Fact and Conclusions of Law, the evidence in the record, the candor and demeanor of the witnesses, it is therefore RECOMMENDED: That the application of David Fugate for a real estate salesman's license be GRANTED. D0NE and ENTERED this 26th day of 0ctober, 1983, in Tallahassee, Florida. P. MICHAEL RUFF Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 26th day of October, 1983. COPIES FURNISHED: David E. Fugate 1028 South East 18th Place Cape Coral, Florida 33904 Lawrence Gendzier, Esquire Department of Legal Affairs Office of Attorney General The Capitol Tallahassee, Florida 32301 Randy Schwartz, Esquire Assistant Attorney General Department of Legal Affairs Suite 212 400 West Robinson Street Orlando, Florida 32801 Fred M. Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
The Issue Whether Respondent, John J. Fugate, Sheriff of DeSoto County, willfully violated Subsection 104.31(1)(a), Florida Statutes (2003), which prohibits an officer or employee of the state, or of any county or municipality, from using his or her official authority or influence for the purpose of interfering with an election or a nomination of office or coercing or influencing another person's vote or affecting the results thereof.
Findings Of Fact Based on the oral and documentary evidence adduced at the final hearing and the entire record in this proceeding, the following findings of fact are made: At the time of hearing, Respondent, John J. Fugate, was the incumbent Sheriff of DeSoto County, Florida. He was first elected in November 2000 and took office in January 2001. At the times pertinent to this case, Sheriff Fugate was a candidate for re-election, having filed the initial paperwork appointing a campaign treasurer and naming a depository for campaign contributions on May 20, 2003. Also on May 20, 2003, Sheriff Fugate submitted his signed "Statement of Candidate," pursuant to Section 106.023, Florida Statutes (2003). This document attested that Sheriff Fugate had received, read, and understood "the requirements of Chapter 106, Florida Statutes (2003)." These statutory provisions were included in the "2000 Candidate Handbook On Campaign Financing," published by the state Division of Elections and given to Sheriff Fugate by the local Supervisor of Elections, when Sheriff Fugate filed his paperwork for the 2000 election. The "2004 Candidate and Campaign Treasurer Handbook" was given to Sheriff Fugate when he filed his re-election paperwork with the local Supervisor of Elections and also included the provisions of Chapter 106, Florida Statutes (2003). During the Commission's investigation, Sheriff Fugate admitted that he had also read Chapter 104, Florida Statutes (2003), and believed he understood its provisions. Though Sheriff Fugate had filed the papers establishing his candidacy for re-election, some Sheriff's Office employees openly questioned whether he really intended to stand for re-election. These questions stemmed from the fact that Sheriff Fugate's teenage son had been killed in an automobile accident in 2002. Sheriff Fugate was aware of these questions and was concerned that loyal employees were unsure of his intentions. For some time, Sheriff's Office employees had also been discussing the status of Major William Wise, the second-in- command to Sheriff Fugate. Major Wise had been the chief deputy under Sheriff's Fugate's predecessor, was kept in that position by Sheriff Fugate, and was very popular among the Sheriff's Office employees. Major Wise was a participant in the State of Florida's Deferred Retirement Option Program ("DROP"), which he believed would require him to separate from the Sheriff's Office for one year upon his official retirement in October 2004. However, in October 2003, Major Wise learned that there was a way for him to reduce his separation to 30 days and still retain his full retirement benefit. Sheriff Fugate decided to prepare a letter to all Sheriff's Office employees that would convey both his re-election intentions and the good news concerning the fact that Major Wise would not have to vacate his position. The letter was written on stationery with a header reading, "Re- Elect Fugate for Sheriff," along with Sheriff Fugate's mailing address and phone number. The text of the letter read as follows: It hardly seems possible that the second half of the third year of this term of office is upon us and I can only concur with the saying that "time stands still for no one." For those that have been here for a while, we have made giant strides for the DeSoto County Sheriff's Office in the past two and a half years and for the newer employees, with your help and our combined efforts, I look forward to more success in the future. Thank you for your help and I truly appreciate the service given to the citizens of DeSoto County. In anticipation of running for a second term of office and as legally required, I have opened my official campaign account. This is the first step in any campaign and this announcement is not to be construed as a request for a contribution to my campaign. I, like you, have been in an employment position when the incumbent was seeking another term of office and can personally relate to pressure applied to assist with the campaign. Please understand that I will, and do value your support in any way that you may be inclined to offer. I also encourage anyone that feels that I have not earned your support in any way in the performance of my duty to feel free to talk to me and you can be assured that it will remain professional and will not be made personal. On another note, I know that there has been some question as to what was going to happen to the position of Major due to Major Wise being in the Drop program and it coming to an end. It is with great pleasure that I announce that a way has been found for Major Wise to continue in his position and he has made the decision to do so. Major Wise has contributed a great deal to this office and I am very pleased that he will be staying with us. If anyone has any questions about this letter, I remind you of our "open door" policy and invite you to feel free to stop by and visit with me. Again, thank you and I look forward to our working together to build a better office for the employees and the community. Beneath Sheriff Fugate's signature was the following: "Pd. Pol. Adv. Paid For In-Kind By John J. Fugate. Approved by John J. Fugate (D)." Sheriff Fugate's review of the Candidate Handbooks led him to conclude that he should not use the Sheriff's Office or DeSoto County resources in preparing or distributing his letter and that none of the costs involved in preparing or distributing the letter should be borne by the Sheriff's Office or the County. Thus, Sheriff Fugate drafted the letter on his home computer. He printed approximately 120 copies of the letter on his home printer, using paper and ink that he purchased at Wal- Mart. On his campaign treasurer's report for the third quarter of 2003, Sheriff Fugate reported the cost of ink and paper associated with this letter as an in-kind contribution from himself to his campaign. Sheriff Fugate brought the copies of the letter to the Sheriff's Office and placed one copy in the pay envelope of each Sheriff's Office employee. At the DeSoto County Sheriff’s Office, it was common practice for items other than pay checks to be included in the pay envelopes. Such items had included advertising circulars and public service memoranda, but not political advertisements. The Sheriff's Office had no specific policy setting forth what may or may not be placed in the pay envelopes, nor was there any particular procedure for obtaining approval of what was to be placed in the pay envelopes. Neither Sheriff Fugate, Major Wise, nor payroll supervisor Kathy Willcutts could recall a request to place an item in the pay envelopes ever having been denied. The pay envelopes, including Sheriff Fugate's letter, were distributed to the Sheriff's Office employees in the usual manner, either at the front desk in the Records Division for pickup or in the employee's mail slot. The employees received Sheriff Fugate's letter upon retrieving their paychecks on or about October 2, 2003. Several Sheriff's Office employees testified at the hearing. None of these employees felt that Sheriff Fugate was attempting to influence their vote or pressuring them to make a monetary contribution to his campaign. Lieutenant Carol Williamson is a 28-year Sheriff's Office employee and has worked for five different sheriffs. Lt. Williamson testified that in the past, she has been essentially ordered to campaign for her bosses, but that she did not consider Sheriff Fugate's letter to be anything other than informational. Deputy Mark Lawrence testified that "I read it, said 'okay,' and threw it away." Sheriff Fugate disclaimed any intent to influence his employees' votes or pressure them for campaign contributions. During his career, he had been forced to campaign for his elected superiors. Because of this experience, Sheriff Fugate did not wish to place his own employees in the position of feeling coerced to support him. Sheriff Fugate testified that he used campaign letterhead and included the "paid political advertisement" disclaimer because his reading of the statutes led him to conclude that those items were legally required on any correspondence referencing his campaign. Nevertheless, Sheriff Fugate maintained that his letter was intended solely to convey information, not to coerce or influence anyone's vote. Sheriff Fugate's testimony is supported by the letter itself, which expressly stated that he was not seeking contributions to his campaign and that employees should feel no pressure to support his candidacy. Nonetheless, Sheriff Fugate's letter was clearly an attempt to favorably influence his employees, albeit a low-key one that did not demand support in the apparent manner of previous sheriffs. The letter solicited the support of Sheriff's Office employees, "in any way that you may be inclined to offer." The letter may not have been coercive, but it was disingenuous for Sheriff Fugate to suggest that the letter was not designed to influence his employees in the upcoming election. Sheriff Fugate was cognizant of Section 104.31, Florida Statutes (2003), and its prohibition on the use of "official authority or influence for the purpose of . . . coercing or influencing another person's vote . . . ." However, Sheriff Fugate believed, mistakenly but in all good faith, that his placement of the letters was allowed under another provision of Section 104.31, Florida Statutes (2003): The provisions of this section shall not be construed so as to prevent any person from becoming a candidate for and actively campaigning for any elective office in this state. All such persons shall retain the right to vote as they may choose and to express their opinions on all political subjects and candidates. For reasons expressed in the Conclusions of Law below, Sheriff Fugate's good faith belief that his actions were within the ambit of the statute negates any suggestion that he "willfully" violated Subsection 104.31(1)(a), Florida Statutes (2003). Sheriff Fugate did not seek advice from the local Supervisor of Elections or an advisory opinion from the state Division of Elections pursuant to Subsection 106.23(2), Florida Statutes (2003), because he believed that he understood the application of the relevant statutes to his situation, including Section 104.31, Florida Statutes (2003).
Recommendation Based upon the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that the Florida Elections Commission enter a final order finding that Respondent, John J. Fugate, did not violate Subsection 104.31(1)(a), Florida Statutes (2003), as alleged, and dismissing the Order of Probable Cause. DONE AND ENTERED this 22nd day of December, 2004, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 22nd day of December, 2004.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the petition of Gloria Wydra for death in-line-of-duty benefits be DENIED. DONE and ENTERED this 1st day of September, 1982, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 1st day of September, 1982.
