The Issue On September 18, 1991, the Florida Commission on Ethics (EC) entered its order finding probable cause that Respondent, Mitchell Kinzer, a member of the Surfside Town Commission, violated section 112.313(6), F.S., by improperly using public funds for personal purposes; and that he violated section 112.3135(2)(a), F.S., by participating in his wife's appointment to the Community Center Advisory Board. The issues for disposition are whether those violations occurred, and if so, what penalty or discipline is appropriate.
Findings Of Fact Respondent, Mitchell Kinzer (Kinzer) has served eight two-year terms on the Surfside Town Commission (Commission); he was mayor for three of those terms, including 1988-90 (term ending in mid-March). He is also an assistant principal in the Dade County public schools and has worked in the Dade County School District for the past thirteen years. Surfside is a tiny incorporated municipality in Dade County, Florida, with a population of slightly over 4,000 and comprised of less than one-half a square mile. It is governed by a five-member commission, including the mayor. The commissioner who receives the most votes in an election is designated the mayor for that two-year term. Commissioners, and the mayor, serve with a nominal one-dollar per year compensation. The mayor's role is largely ceremonial. He or she, as well as the commissioners, represent the city at various social, cultural and civic functions. The commission meets once a month and its committees meet more frequently. Its policy directives are executed by the town manager/finance director who serves at the pleasure of the commission. Use of Public Funds Prior to 1989, the commissioners were reimbursed for their expenses by submitting a voucher or petty cash slip and receipts. There was an annual limit of $800.00 or $1,000.00, with more, probably $1,500.00, for the mayor. From time to time the town manager would challenge these requests as being unrelated to city business. Hal Cohen, who has been Surfside's town manager/finance director since 1981, rarely argues now. In his view there are too many "grey areas" and he has become tired of the debates. Commissioners and their spouses have routinely been reimbursed for expenses related to their attendance at concerts and other events on behalf of the city. In August 1989, the commission approved a resolution providing a flat monthly rate for the mayor and commissioners. That resolution #1256 took effect October 1, 1989, and provided, in pertinent part: Section 2. That the Mayor of the Town of Surfside be permitted to recover monies in behalf of the Town of Surfside for representing the Town at governmental and civic functions in an amount not to exceed $1,500.00 per year in office, prorated and paid monthly in advance. Section 3. That the Members of the Town Commission each be permitted to recover monies expended in behalf of the Town of Surfside for official representation, registration and expenses while attending established governmental and civic functions in an amount not to exceed $1,000.00 per year in office, prorated and paid monthly in advance. (Advocate's Exhibit #7) Kinzer understood that the "allowance", as it was called, could be spent on virtually anything, but that any portion that was not used for commission-related duties would have to be reported to the Internal Revenue Service as taxable income. On the advice of his accountant, he kept a running list of his expenditures and submitted the list to Hal Cohen. Other commissioners did not submit such lists. The following items appearing on Kinzer's list are the subject of the Advocate's prosecution in this case: 4/25/90 Plant/Secretary's day $29.63 4/29/90 Concert ticket and Mileage 17.20 4/30/90 Police dinner mileage .60 5/01/90 Long distance call to Town Manager 5.00 5/07/90 Mileage and parking to state attorney's office 7.00 5/16/90 Meal and mileage--Chamber of Commerce meeting 20.40 5/16/90 Theater of Performing Arts; mileage 3.00 5/17/90 Dry cleaning 11.25 In May 1990, the commission approved a resolution deleting the earlier resolution allowing for advance payment of expense monies. The action was made retroactive to May 1, 1990. Kinzer maintained his expense list through the end of May and then quit. The process returned to the reimbursement method that had been in effect before. Kinzer was reimbursed, or compensated in advance, for each of the items at issue. He contends that they were related to his activities on behalf of the town of Surfside. The plant was for the town secretary, an individual who worked for the town. In the past, this type of purchase was reimbursed, according to Hal Cohen. The concert expenditure was for Kinzer and his wife. The call to the town manager was related to town business. Hal Cohen lives in Hollywood, Florida, a long-distance toll call. The mileage and parking at the state attorney's office was related to the complaint filed in this case. The police dinner, chamber of commerce meeting and Theatre of Performing Arts were functions at which Kinzer represented the town of Surfside. Kinzer explained the dry cleaning bill in this manner: Q Okay. What was the council-related duty that resulted in a cleaning bill? A Again, I was attending a luncheon for the suit[sic], it was a luncheon and the waiter spilled something all over my suit and I felt that it should be cleaned because I was there representing the town and also I had a sport coat that was soiled at an evening a few nights before, so I had those cleaned and I got reimbursement. (Advocate's Exhibit #2, p. 45) With the exception of the cleaning bill, the items at issue are either plainly related to the commissioner's duty or were the type of items that had been over time considered proper for reimbursement by the town. There was no evidence of guidance provided to the commissioners other than a case by case informal determination by a town manager weary of disputes and subject to removal by a majority of the commission. Although some guidance is provided to employees of the Dade County School District with regard to appropriate expenditures and Kinzer as an assistant principal is aware of that guidance, his duties as an employee of the school board and duties as a city commissioner are quite different. The Board Appointment On May 8, 1990, the commission adopted a resolution creating a five- member advisory board for the Surfside Community Center for the purpose of advising the commission on improvements of operations and facilities at the center. Appointment to the board was by nomination by a member of the commission with approval by a majority of a quorum. Regan Kinzer, Respondent's wife, wanted to serve on the new board. He discouraged her as he felt the board was simply political, and one politician in the family was enough. She went to Commissioner Novack who nominated her on June 12, 1990. Her nomination was unanimously approved. Respondent Kinzer was present and voted. Steven Cypen, the town attorney, had advised previous commissioners that it was proper to vote on appointments of their relatives to uncompensated positions on town boards. Later, he became aware of an Ethics Commission opinion stating that such appointments were improper. Out of an abundance of caution he sent a letter to the affected board members with a copy of the opinion and each such member, including Mrs. Kinzer, resigned.
Recommendation Based on the foregoing, it is, hereby, RECOMMENDED: That the Commission on Ethics enter its final order and public report finding that Respondent Kinzer violated section 112.313(6), F.S., with regard to expenditure of $11.25 for dry cleaning, and violated section 112.3135(2)(a), F.S., as alleged in the order finding probable cause; and recommending a civil penalty of $300.00 and restitution of $11.25. DONE AND RECOMMENDED this 25th day of January, 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 25th day of January, 1994. APPENDIX TO RECOMMENDED ORDER, DOAH CASE NO. 93-0313EC The following constitute specific rulings on the findings of fact proposed by the Respondent: Adopted in substance in paragraph 1. Addressed in statement of issues. Adopted in paragraph 7. Adopted in substance in paragraph 9. Adopted in paragraphs 5 & 6. Adopted in paragraph 4. Adopted in paragraph 6. Adopted in paragraph 9. Adopted in part in paragraphs 1 and 3; otherwise rejected as irrelevant. Adopted in paragraph 14. Adopted in part in paragraph 14; the resolution creating the board provided the method of appointment, including the requirement for vote by the commission; Kinzer voted Adopted in substance in paragraph 15. Addressed in part in conclusions of law, otherwise irrelevant. [no paragraph 14] Adopted in paragraph 15. COPIES FURNISHED: Virlindia Doss, Esquire Advocate for Commission on Ethics Department of Legal Affairs The Capitol, PL-01 Tallahassee, Florida 32399-1050 Neal L. Sandberg, Esquire 1492 South Miami Avenue Miami, Florida 33130 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
The Issue The issues for determination are: Whether Respondent violated section 112.3135, Florida Statutes,1/ by voting on the appointment and/or advocating for the appointment of her relative to a position within her agency and/or her agency voting to appoint and/or advance her relative and, if so, what is the appropriate penalty? Whether Respondent violated section 112.313(6), Florida Statutes, by using her position to appoint her relative to the position of City of Midway Mayor Pro Tem and, if so, what is the appropriate penalty? Whether Respondent violated section 112.313(6), Florida Statutes, by using a City of Midway-owned vehicle and/or City of Midway-issued gasoline credit card for personal use and, if so, what is the appropriate penalty? Whether Respondent violated section 112.3148(8), Florida Statutes, by failing to report the gift of the personal use of the City of Midway-owned vehicle and/or the City of Midway-issued gasoline credit card and, if so, what is the appropriate penalty?
Findings Of Fact At all material times, Respondent served as a member of the Midway City Council (City Council). She was initially appointed to the City Council in 2000 and served until 2003. She was subsequently elected to the City Council in 2015 and served until May of 2019. Respondent became the Mayor of the City of Midway in May of 2017. As a member and/or mayor of the City Council, Respondent is subject to article II, section 8, Florida Constitution, and the requirements of part III, chapter 112, Florida Statutes, Code of Ethics. In January 2018, Respondent attended and received ethics training from the Florida League of Cities. That training included information on and examples of nepotism, misuse of position, and the receipt and disclosure of gifts. It also included information about the Commission issuing advisory opinions and how to contact the Commission. Nepotism Allegation The form of government the City of Midway (the City) provided under its Charter is the "Council-Manager Government,” under which all powers of the City are vested in an elected council. The City Council consists of five citizens who are residents of the City and electors eligible to vote in the City elections. From its members, the City Council elects a Mayor and Mayor Pro-Tem. The election of the Mayor and Mayor Pro-Tem occurs at the first regular council meeting after the City election. According to the Midway City Charter, the Mayor presides at all meetings of the City Council and performs other duties consistent with the office as imposed or designated by the City Council. The Mayor has a voice and vote in the proceedings of the City Council. The Mayor is referred to as Mayor-Councilmember in the execution of any legal instruments or writing or when functioning to meet other duties arising from the general laws of Florida or from the City Charter. The Mayor is recognized as the head of City government for all ceremonial purposes, for service of process, execution of contracts, deeds and other documents. The Mayor may take command of the police and govern the City by proclamation during the times of grave public danger or emergency and the Mayor has the power during such times to appoint additional temporary officers and patrolmen. The power and duties of the Mayor-Councilmember are such as they are conferred upon him/her by the Midway City Charter and no other. The Midway City Charter provides that the Mayor shall: “(a) See that all laws, provisions of this charter, and acts of the council, subject to his/her direction and supervision are faithfully executed; (b) Submit the annual budget message; (c) Summon the appropriate law enforcement officers to suppress civil disturbances and to keep law and other during times of emergency; (d) Make such other reports as the council may require concerning the operations of city departments, offices, and agencies subject to his/her direction in time of emergency; (e) Attend, preside, and vote at all council meetings; (f) Sign contracts on behalf of the city pursuant to the provisions of applicable ordinances; (g) Be recognized as the city official designated to represent the city in all agreements with other governmental entities or certifications to other governmental entities as approved by the vote of the city council; (h) Annually prepare a state of the city message, set forth the agenda for all meetings of the council, name committees of the council, make recommendations of members for city boards to the city council; (i) Perform such other duties as specified in this charter or may be required by council.” The population of the City is less than 4,000 residents. The City Council has land use and/or zoning responsibilities. In April 2016, there was a vacancy on the City Council caused by a Councilmember departing prior to the end of that Councilmember’s term. Respondent’s first cousin, Sam Stevens, wanted to be appointed to the City Council to fill the vacant seat. Prior to any action on the matter, Respondent telephoned Commission legal staff member, Grayden Schafer, Esquire, and inquired whether she would be in violation of the anti-nepotism statute if the Council appointed her first cousin to serve the unexpired remainder of a departing Councilmember's term. Following his telephone conversation with Respondent, on April 21, 2016, Attorney Schafer sent an e-mail to Respondent at rangewanda@yahoo.com, summarizing Respondent’s inquiry and the advice he provided. The last page of that e-mail (Schafer’s E-mail) states: a public official can be held in violation of the anti-nepotism provision if the appointment is made by the collegial body on which she serves, even if she did not participate in the appointment. Given the foregoing, it appears that you can be held in violation of the anti-nepotism statute not only if you directly participate or advocate for your first cousin's appointment but also if the City Council decides on its own to appoint him, regardless of whether you vote or participate. According to Respondent, she did not receive the Schafer E-mail in 2016 and did not see it until after the filing of the complaints initiating this case against Respondent. Regardless of the timing of Respondent’s receipt of Schafer’s E-mail, the evidence is persuasive that the topic was discussed between Respondent and Attorney Schafer, and that, as a result of her telephone conversation with Attorney Schafer in April 2016, Respondent understood that, because of her kinship with Sam Stevens, she could not vote to appoint or advocate to appoint Sam Stevens to the City Council. She also was aware that, even if she recused herself from voting or participating in the discussion to appoint Sam Stevens to the City Council, if the City Council voted to appoint her first cousin to the vacant seat, she would be in violation of the anti-nepotism provision. After her conversation with Attorney Schafer, in April 2016, Respondent advised the City Council of her research and that she had contacted the Commission to inquire as to whether she could vote to appoint her cousin to the City Council. She explained that she could not and would have to resign if he was appointed, even if she did not participate in the vote. Sam Stevens was not appointed to fill the vacant City Council seat in 2016. The next year, Sam Stevens was elected to the City Council during the April 2017 municipal election. He was not elected or appointed by the City Council, but rather was elected by City citizens voting in the election. The following month, at its May 4, 2017, meeting, the City Council considered the issue of electing a Mayor and Mayor Pro-Tem as provided by the City Charter. At that meeting, Councilman Colston asked if it was legal for relatives to vote for each other. The minutes of the City Council for that date indicate that “Interim City Attorney Thomas explained he had heard the rumor and did research and it is legal.” Contrary to the City Council minutes, in his deposition testimony, City Attorney Thomas denied that he gave that advice, but rather explained that he opined that Respondent and Councilman Sam Stevens could serve together on the City Council, but could not promote or advocate for one another. Despite his denial, during his interview with the Commission’s investigator, City Attorney Thomas “recalled researching the matter and advising Respondent that it was not a voting conflict for her to vote to appoint her cousin to serve as mayor pro tem." Considering the conflicting evidence, it is found that the preponderance demonstrates that the City Attorney advised that it was not a voting conflict for relatives to vote for each other for Mayor and Mayor Pro-Tem. Respondent did not reveal her 2016 conversation with Attorney Schafer to the City Council on May 4, 2017, nor did she provide a copy of Schafer’s E-mail dated April 21, 2016, to either the City Council or the City Attorney prior to the City Council’s votes for Mayor and Mayor Pro-Tem. However, at the May 4, 2017, City Council meeting, a citizen confronted Respondent with a copy of Schafer’s E-mail, reading portions of Schafer’s E-mail aloud. Respondent testified that she did not acknowledge an ethical dilemma regarding Attorney Schafer’s opinion because she believed it addressed appointment as opposed to election, and her cousin had been elected a year later, not appointed. Schafer’s E-mail does not address the situation in which both Respondent and her first cousin are elected members of the City Council and whether Respondent can vote to elect him as the Mayor Pro-Tem in that context. At that meeting, Respondent nominated herself to serve as Mayor. Her nomination was seconded by Councilman Smith. Respondent was elected as Mayor when the City Council voted three to two for Respondent to serve as Mayor with Councilman Smith, Councilman Sam Stevens, and Respondent voting “yes,” and Councilman Ronald Colston and Councilwoman Carolyn Francis voting “no.” Respondent, as the Mayor, received an $800 stipend, which is $100 more than the other councilmembers. At that same May 4, 2016, meeting, Councilman Colston nominated Councilwoman Francis to serve as Mayor Pro-Tem. That nomination failed two to three, with Respondent, Councilman Smith, and Councilman Stevens voting “no.” Councilman Smith then nominated Councilman Stevens to serve as Mayor Pro-Tem. The City Council voted three to two for Councilman Stevens to serve as Mayor Pro-Tem with Respondent, Councilman Stevens, and Councilman Smith voting “yes,” and Councilman Ronald Colston and Councilwoman Carolyn Francis voting “no.” According to the City Charter, the Mayor Pro-Tem: “shall preside over the meetings of the council during the absence of the mayor- councilmember, and in general in the absence or the incapacity of the mayor- councilmember, he/she shall do [sic] perform those acts and things provided in this Chapter to be done by the mayor- councilmember. Nothing contained herein shall be construed as to preclude the member succeeding himself or herself as Mayor- Council member.” The City provides no additional compensation for a Councilmember serving as Mayor Pro-Tem. Vehicle Use and Gift Disclosure The City has two vehicles. One is a white Ford Taurus that has air conditioning (Vehicle). The other is a white Ford Taurus with a red stripe that does not have air conditioning. Respondent was given a 2002 MPV Mazda Van by her daughter, Temika Smith, on Mother’s Day in 2016. While serving as Mayor, Respondent had use of the Vehicle for personal use. Respondent began using the Vehicle in September or October 2017 following a hurricane and had access to the Vehicle until she stopped using it in May of 2019. During this time, the Vehicle was generally parked on property adjacent to Respondent’s residence. While Respondent had a set of keys to the Vehicle, there was another set of keys at the City Hall. In addition to Respondent’s access, other city employees or city council members could use the Vehicle. Former City Manager Steele used the Vehicle on occasion during the time that Respondent had access to the Vehicle. When former City Manager Steele wanted to use the Vehicle, she would pick it up from Respondent’s residence and return it to City Hall. Respondent used the Vehicle for a variety of City- related purposes. She used it to travel to Florida League of Cities’ conferences. In addition, she used the Vehicle to attend events in Midway, in Gadsden County, and in Tallahassee, including meetings with the City’s lobbyist and members of the Florida Legislature, as part of her duties and responsibilities as Mayor. Respondent was also observed driving the Vehicle to meetings at the City Hall. Respondent’s personal use of the Vehicle included, but was not limited to, traveling roundtrip between Midway and Tallahassee. She may have had her daughter in the Vehicle on two or three occasions, and on occasion, drove the Vehicle to her daughter’s house in Tallahassee. On one of the occasions when Respondent drove the Vehicle to her daughter’s house in Tallahassee, which occurred on March 15, 2018, Respondent had a run-in with a Midway resident who had followed Respondent to her daughter’s house. The Midway Resident took pictures of the Vehicle at Respondent’s daughter’s house and also the Mazda MPV van, which was without a license plate. On that occasion, Respondent had gone to check on the house because her daughter was out of town. At the final hearing, Respondent admitted that there was a time when the Mazda MPV was in the shop a lot, and, since she had access to the Vehicle, she turned in the Mazda’s tag to save on insurance payments. On another occasion in 2018, Respondent was stopped by a Gadsden County Deputy Sheriff in Midway after midnight for having a tag light out and the incorrect tag on the Vehicle. Respondent had been returning from Tallahassee. No citation was issued with respect to that stop. Other examples presented at the hearing illustrating Respondent’s use of the Vehicle included her transporting a child from Midway to Florida High in Tallahassee, taking a Midway resident from Midway to Tallahassee to drop him at his place of employment, and taking an individual to Liberty County to retrieve that person’s vehicle left when evacuating because of a hurricane. While providing such accommodations is not listed within Respondent’s responsibilities as Mayor or Councilmember, arguably, they served a public purpose. While Respondent had access and use of the Vehicle, the City did not have a vehicle-use policy. The evidence indicates that former City manager Ford also used a City-owned vehicle for personal use. Former City Manager Steele could not recall if any other city employees or city council members had used the Vehicle. Respondent testified that employees of the City’s public works department might also have used the Vehicle. City Councilman Ron Colston testified that he never used the Vehicle. At the May 3, 2018, Midway City Council meeting, Councilman Colston publicly requested that Respondent stop driving the Vehicle, stating that citizens had approached him with concerns about Respondent driving the Vehicle. Minutes of that City Council meeting indicate that Councilman Coston commented that he had received some calls from citizens concerned with Respondent driving the City-owned vehicle and suggested that she should park the Vehicle because of the number of complaints and that it is a liability. In response to that comment, City Attorney Thomas suggested that the City Council come up with some policy and procedures on the use of City vehicles. Respondent did not stop driving the Vehicle at the time of Councilman Colston’s request. By the end of October 2018, the Vehicle needed a tune-up and to have its brakes checked. In October 2018, Respondent started using a rental car when she got a job with the Federal Emergency Management Agency (FEMA) for debris monitoring. Respondent was not reimbursed by FEMA for the rental. In January 2019, Respondent purchased a new vehicle, a 2019 Mitsubishi G4 Mirage. At the time of the final hearing in this case, the City was in the process of developing a policy regarding the use of City vehicles and City Fuel Cards. Respondent did not report the use of the vehicle on her income taxes and did not file a gift disclosure to report her personal use of the City-owned vehicle as a gift. Fuel Card Use and Gift Disclosure Respondent used a City-issued Pilot Travel Center credit card for gasoline for the Vehicle. City-issued Pilot Travel Center credit card #007 (City Fuel Card) was assigned to the Vehicle. The City Fuel Card was the only one numbered #007 and it remained in the Vehicle. While some of the fuel purchases charged to the City Fuel Card were related to City business, Respondent acknowledged that fuel was also purchased using the City Fuel Card during her personal use of the Vehicle. Records of City Fuel Card #007 from November of 2017 through December of 2018 show the following charges: November 2017: -November 1, 2017– 623 Quincy FL- $33.67 -November 5, 2017- 425 Midway FL- $20.71 -November 5, 2017- 4556 Wildwood FL- $20.00 -November 8, 2017- 4556 Wildwood FL- $18.30 -November 9, 2017- 623 Quincy FL- $24.72 -November 13, 2017- 623 Quincy FL- $21.77 -November 13, 2017- 623 Quincy FL- $35.42 -November 20, 2017- 623 Quincy FL- $42.68 -November 20, 2017- 623 Quincy FL- $30.78 -November 27, 2017- 623 Quincy FL- $32.00 Respondent traveled on City business to and from Orlando, Florida, from November 5 through November 8, 2017. As to the multiple charges on November 13, 2017, and November 20, 2017, Respondent explained that she traveled on City business because “we were giving out turkeys during that time.” December 2017: -December 2, 2017– 623 Quincy FL- $30.91 -December 12, 2017– 623 Quincy FL- $34.06 -December 15, 2017– 425 Midway FL- $30.27 -December 22, 2017– 425 Midway FL- $27.03 January 2018: -January 9, 2018– 425 Midway FL- $33.82 -January 17, 2018– 425 Midway FL- $22.03 -January 18, 2018- 4556 Wildwood FL- $18.00 -January 21, 2018- 4556 Wildwood FL- $8.20 -January 22, 2018- 425 Midway FL- $15.50 -January 23, 2018- 425 Midway FL- $8.57 -January 24, 2018- 425 Midway FL- $10.01 -January 26, 2018- 425 Midway FL- $24.00 Respondent traveled on City business to and from Orlando, Florida, during the period from January 18 through 22, 2018. February 2018: -February 2, 2018– 425 Midway FL- $34.26 -February 15, 2018– 425 Midway FL- $32.00 -February 22, 2018– 425 Midway FL- $30.01 March 2018: -March 14, 2018- 425 Midway FL - $31.00 -March 28, 2018– 425 Midway FL - $32.07 April 2018: -April 7, 2018– 425 Midway FL - $25.00 -April 17, 2018– 425 Midway FL - $35.44 -April 28, 2018– 425 Midway FL - $7.52 66. May 2018: -May 14, 2018– 425 Midway FL - $37.01 -May 20, 2018– 425 Midway FL - $29.02 -May 26, 2018– 425 Midway FL - $41.00 67. June 2018: -June 1, 2018– 4556 Wildwood FL- $25.03 -June 2, 2018– 4556 Wildwood FL- $18.02 -June 4, 2018– 425 Midway FL- $20.00 -June 9, 2018– 425 Midway FL- $31.00 -June 15, 2018– 425 Midway FL- $28.04 -June 29, 2018– 425 Midway FL- $33.00 Respondent traveled on City business to and from Orlando, Florida during the period from May 31, 2018, through June 2, 2018. 68. July 2018: -July 18, 2018- 425 Midway FL- $35.06 August 2018: -August 3, 2018– 425 Midway FL- $21.08 -August 14, 2018- 622 St. Lucie FL- $20.01 -August 14, 2018- 091 Jacksonville- $24.00 -August 19, 2018- 624 Dade City FL- $27.02 -August 20, 2018- 425 Midway FL- $19.33 -August 24, 2018- 425 Midway FL- $33.01 Respondent traveled on City business to and from Hollywood, Florida during the period from August 14 through 18, 2018. September 2018: -September 4, 2018– 425 Midway FL- $37.00 -September 13, 2018– 425 Midway FL- $35.50 -September 29, 2018– 425 Midway FL- $36.01 October 2018: -October 10, 2018– 623 Quincy FL- $39.07 November 2018: -November 21, 2018– 623 Quincy FL- $33.07 December 2018: -December 5, 2018– 623 Quincy FL- $18.80 In addition to the fact that some of Respondent’s use of the City Fuel Card to put fuel in the Vehicle included her personal use of the Vehicle, Respondent used the City Fuel Card to purchase gasoline for the Vehicle when she was using the Vehicle for travel on City business, including travel to Florida League of Cities’ conferences in November of 2017, as well as while traveling on City business in and around Midway and Gadsden County, and to and from Tallahassee. Respondent also used the City Fuel Card to pay for gasoline while traveling on City business to attend Florida League of Cities’ conferences in a rental vehicle. These conferences occurred January 18 through 22, 2018; May 31 through June 2, 2018; and August 14 through 18, 2018. There was no evidence presented that Respondent used the City Fuel Card to purchase anything other than fuel for the Vehicle or fuel for a rental car while on business for the City. As the City Fuel Card was kept in the Vehicle, other City Council members or City employees would have had access to the City Fuel Card when they were driving the Vehicle. Respondent did not file a gift disclosure to report her use of the City Fuel Card to put gasoline in the Vehicle on those occasions when she used the Vehicle for personal use.
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 Respondent, Wanda Range, violated section 112.3135, Florida Statutes, and recommending the imposition of a nominal civil penalty of $1.00 for that violation, and further finding that Respondent Wanda Range did not violate sections 112.313(6), or 112.3148(8), Florida Statutes, as alleged in the Order Finding Probable Cause. DONE AND ENTERED this 8th day of November, 2019, in Tallahassee, Leon County, Florida. S JAMES H. PETERSON, III 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 8th day of November, 2019.
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
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.
