The Issue The issues in the case arc whether Respondent, on October 22, 1987, unlawfully and intentionally touched or struck Mary Ann Lanning and Denise Lanning and, if so, whether Respondent violated Sections 943.1395(5) and (6), Florida Statutes, and Rule 11B-27.0011(4)(b), Florida Administrative Code, which require that a law enforcement officer have good moral character, and thus failed to maintain the qualifications established in Sections 943.13(4) and (7), Florida Statutes.
Findings Of Fact Petitioner certified Respondent on December 31, 1970. Respondent received Certificate Number GF-1813. At the time of the events in question, Respondent was a trooper employed by the Florida Highway Patrol. On the evening of October 21, 1987, Respondent was at the office where he held a part-time job. At home were Respondent's wife, two young children born of their marriage, and two older daughters born of a prior marriage of Respondent. The two older daughters are Kim, who was then 15 years old, and Chris, who was then 16 years old. Respondent's wife and the two older daughters got into an argument, and the daughters angrily went to a neighbor's home a couple of houses away. The daughters had undergone significant emotional turmoil, largely the result of successive abandonments by their natural mother, who was Respondent's first wife, and then their adoptive mother, who was Respondent's second wife. The neighbor's house was the Lanning residence where Mary Ann Lanning and her daughter Denise lived. Denise was Kim's close friend and had been for several years. Kim and Chris were upset and crying when they arrived at the Lanning's home. Mrs. Lanning and Denise comforted them. In the meantime, Respondent's wife called him at about 6:00 p.m. and informed him of the problem. Respondent was not overly surprised. The two girls had recently been misbehaving, and relations between them and their father had been strained. Respondent and his wife, who were due to go to church that night, agreed, as was customary, that they would drive separately and meet at church. Respondent instructed his wife to lock up the house, which contained valuable personal items, including firearms. When Respondent and his wife returned from church that evening, his daughters were still gone, but a note was attached to the front door. The note informed Respondent that they were okay. The note also began to recite the telephone number at which they could be reached. However, Chris, unknown to Kim, had ripped the number off from the note before posting it on the door. At this point, one of the first of many factual disputes emerges. Although it concerns a matter that is not, in itself, of critical importance, Respondent and Mrs. Lanning advance their varying viewpoints with vehemence. The animosity between Respondent and Mrs. Lanning is incomprehensible as they were barely acquainted prior to the evening in question, and neither of them testified to any prior disagreements. In any event, it has proven impossible to credit the testimony of either of them, when their testimony is in dispute. The excitability of Mrs. Lanning coupled with the impulsiveness and arrogance of Respondent, which probably went a long way toward generating a series of failed communications, also detracted from their credibility as witnesses. Therefore, in the many instances in which their testimony is in dispute, the testimony of Respondent alone has been used to construct the events of the following eighteen hours or so, unless otherwise indicated. As the evening progressed, Chris and Kim, who were accompanied by Denise at least part of the way, went back home to see if they could get into the house to get their clothes. They intentionally went when they knew everyone would be gone at church. However, they found that they could not gain access to the house. The daughters may have visited their house a couple of more times when they knew that no one would be home. The record does not disclose whether they returned to try different means to get into the locked house, to mislead Mrs. Lanning into thinking that they were genuinely trying to contact Respondent and his wife, or to entertain themselves by walking around their neighborhood at night. Mrs. Lanning did not try to telephone Respondent or his wife that evening, although this apparently is due to her justifiable belief that they knew where the children were. An uneventful evening followed during which Chris and Kim slept at the Lanning's home and generally enjoyed themselves. Although she was good friends with Denise, Chris had never spent an evening at her friend's house. Respondent was a strong disciplinarian. The following morning, which was a school day, Chris and Kim again tried to reenter their house when they knew their stepmother would be taking their stepsister to school. Unable to gain access to their house and without school clothes, Chris and Kim decided to remain at the Lanning's home that day, and Denise stayed home with them. Later that morning, Mrs. Lanning telephoned Respondent at work and left a message for him to call her. As soon as he was able, Respondent returned the call. The time was about 10:00 a.m. Although the conversation was memorable, neither Mrs. Lanning nor Respondent remembers the conversation in the same terms. They agree that Mrs. Lanning told Respondent that his daughters were at her house, they were upset, and Respondent's house was locked. The remainder of the conversation is based on the testimony of Respondent. Frequently calling her "babe" and "darling," notwithstanding Mrs. Lanning's objections to this offensive practice, Respondent informed Mrs. Lanning that the house would remain locked as long as no one was at home. When Mrs. Lanning offered her advice that he should allow the girls to eat eggs, Respondent replied, "Hey, babe, that's none of your business." Mrs. Lanning retorted, "I'm not going to send [the children] down to that bitch [Respondent's third wife]." Respondent then informed Mrs. Lanning that he would pick up his daughters when he returned home from work that afternoon. At this point, Respondent called his wife and related the conversation, omitting the offensive reference to her. Respondent's wife said that she had reported the girls as missing persons when they had not returned from school that afternoon. At about 3:30 p.m., Respondent arrived home still in uniform and in a marked patrol car. When he greeted his wife, he learned that Mrs. Lanning had spoken with an older daughter of Respondent. The older daughter, who lived in St. Cloud, had called Respondent's wife and told her that Mrs. Lanning was crazy and they should get the children as soon as possible. Respondent immediately went to Mrs. Lanning's house, still in uniform and still wearing his gun. He knocked on the door. Mrs. Lanning answered the door by opening it slightly. Chris, Kim, Denise, and a friend, Deanna, were in the vicinity of the patio in the back, not clearly visible from the doorway. When the door opened partially, Respondent stepped into the house, uninvited and obviously unwelcome. When Respondent entered the house, Mrs. Lanning exhorted him loudly to leave. Respondent said that he just wanted his kids and would leave once he had them. Mrs. Lanning tried to push him out the door. He warned her not to. She kept trying to push him out the door. In a raised voice and threatening tone, Respondent insisted, "Hey, babe, I want my kids and I want them now." As Respondent testified, "It took 20 years of training and every fiber of my being not to go over there and strangle her." Resisting this impulse, Respondent instead grabbed the wrist of Mrs. Lanning and informed her, "That's it, darling. You're under arrest." When she asked what was the charge, he told her, "Well, we'll start off with kidnapping." Respondent was aware that Mrs. Lanning was not guilty of kidnapping. Respondent then turned Mrs. Lanning's arm behind her back. The children entered the room. Denise came to the aid of her mother. She tried to grab Respondent, who informed her: "Get your hands off me, toots." Denise then called him and his wife sons of a bitch. Although Respondent denies touching Denise, his daughter, Kim, whose testimony was generally favorable to her father, testified that Respondent took Denise by the wrist and pushed her away. Kim's testimony is credited. In a similar regard, Kim testified that she saw her father remove a telephone from Mrs. Lanning's hand in an attempt to prevent her from calling the police. Kim's testimony is credited on this point as well. After additional heated exchanges, Respondent was unable to persuade his daughters to return home. He instead left the Lanning's home a few minutes before a deputy from the Orange County Sheriff's Office arrived on the scene in response to calls from Mrs. Lanning and Denise. Changing into civilian clothes, Respondent prepared himself to speak with the deputy. The deputy initially treated the call as a neighborhood dispute, which he tried to settle. He spoke first with Mrs. Lanning and found her sensible and composed. She reported nothing of being touched by Respondent, only that he had forced his way into her home. The deputy then went to Respondent's house and found him in a similar state. The atmosphere deteriorated when the deputy brought Respondent back with him to Mrs. Lanning's house to apologize. Mrs. Lanning became irate and hostile. Recognizing that he was involved in a domestic disturbance, the deputy wisely called for supervisory assistance. After a corporal arrived on the scene, the deputy issued Respondent a trespass warning, which ordered him to stay off Mrs. Lanning's property. Notwithstanding the best efforts of both law enforcement officers, they could not mollify Mrs. Lanning. Mrs. Lanning later complained to the Orange County Sheriff's Office about the deputy and corporal. The record discloses no basis whatsoever for such complaint. To the contrary, the timely decision of the deputy to involve a supervisor in the investigation negates any suggestion that he intended to treat Respondent deferentially because of his status as a law enforcement officer. As a result of the above-described event, Respondent was terminated from the Florida Highway Patrol. Mrs. Lanning claims that she sustained a dislocated shoulder and serious injuries to her arm, back, and neck. She now suffers from bursitis and arthritis as a result of the incident. This testimony is not credited. Mrs. Lanning proved capable of complaining when she felt the need, yet she said nothing of a dislocated shoulder, pain, or even the physical touching when she first spoke with the deputy. The case involves more than Respondent's demonstrated inability to regain custody of his daughters in a prudent and appropriate manner. The case involves more than a lack of "people skills," such as in repeatedly calling a woman "babe" or "darling," especially after she has asked not to be called that, in a transparent effort to intimidate and patronize. The case involves a uniformed, armed law enforcement officer, trembling with rage for perceived but insignificant threats to his authority, allowing fury to overwhelm his reason and ignoring the critical distinctions among his roles as trooper, parent, and neighbor. Under these facts, Petitioner has proven by clear and convincing evidence that Respondent has failed to maintain good moral character. On August 16, 1988, the Office of the State Attorney for the Ninth Judicial Circuit filed a two count information alleging that Respondent committed the offense of battery upon Mrs. Lanning and her daughter. On November 10, 1988, Respondent pled nolo contendere to the charges in Orange County Court. In his twenty-one years with the Florida Highway Patrol, Respondent maintained a good record.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Criminal Justice Standards and Training Commission enter a Final Order finding Respondent guilty of failing to maintain good moral character and suspending his certificate for a period of two years. RECOMMENDED this 19th day of July, 1990, in Tallahassee, Florida. ROBERT E. MEALE 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 19th day of July, 1990. APPENDIX Treatment Accorded Petitioner's Proposed Findings 1-8: adopted or adopted in substance. 9: rejected as unsupported by the greater weight of the evidence. 10-20: adopted or adopted in substance. 21: rejected as recitation of testimony and subordinate. 22-43: adopted or adopted in substance. Treatment Accorded Respondent's Proposed Findings I, a-c: rejected as not findings of fact. II: adopted in substance except "near-perfect" record rejected as unsupported by the greater weight of the evidence. II, a-b: adopted or adopted in substance. II, c: first sentence rejected as unsupported by the greater weight of the evidence. Remainder adopted in substance. II, d: adopted. II, e: rejected as subordinate. II, f-k: adopted or adopted in substance, although the proposed facts do not adequately describe the incident at Mrs. Lanning's house. II, l: adopted in substance except that complaint filed against Mrs. Lanning is rejected as irrelevant. COPIES FURNISHED: Joseph S. White Assistant General Counsel Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, FL 32302 Attorney Douglas E. Whitney Maitland Springs Office Park 377 Maitland Avenue, Suite 101 Altamonte Springs, FL 32701 Jeffrey Long Director Criminal Justice Standards Training Commission Post Office Box 1489 Tallahassee, FL 32302 James T. Moore Commissioner Department of Law Enforcement Post Office Box 1489 Tallahassee, FL 32302 Rodney Gaddy General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, FL 32302
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 has just cause to terminate Respondent from employment as a bus driver, a non-instructional position.
Findings Of Fact Background The School Board is the duly authorized entity responsible for the operation, control, and supervision of all public schools (grades kindergarten through 12) in Hernando County, Florida, and for otherwise providing public education to school-aged children in the county. § 4(b), Art. IX, Fla. Const. At all times material to this proceeding, Respondent was employed by Petitioner as a bus driver, a position she held for approximately 16 years. Bus drivers are considered educational support or non-instructional employees. The School Board has adopted a Safe Driver Plan that applies to all bus drivers. All bus drivers receive a copy of the Safe Driver Plan annually, and are required to sign the Safe Driver Acknowledgement Form indicating that he/she has reviewed and understands the plan. The Safe Driver Plan specifically provides guidelines for assignment of points based on alleged driving-related incidents and maximum number of points that may be assigned for each violation. A recommendation for disciplinary action is based on the number of points assigned during a 12-month time period. Under the Safe Driver Plan, the recommendation for disciplinary action for the designated points within a 12-month period is as follows: 1-4 points, a documented warning; 5- 6 points, a one-day suspension without pay; 7-9 points, three days’ suspension without pay; and 10 points, recommendation for termination. Pursuant to the Safe Driver Plan, the Review Board “assesses points for any violation or incident/crash from 0 through 10 following the approved point system outlined in the plan.” Specifically, the Review Board, made up of five members, as designated by the Safe Driver Plan, is responsible for reviewing driver incidents, determining whether the incidents were preventable or unpreventable, listening to any evidence provided by the driver regarding the incidents, and assessing points pursuant to the Safe Driver Plan. The Review Board does not have discretion regarding the recommendation made to the driver’s site administrator. Regarding assignment of points, the Safe Driver Plan provides in relevant part: If court action is required to determine fault in an incident/crash, and the assignment of points would be five (5) points or less, the driver shall not be assigned points until court action is taken. Effective date of points assigned shall be the date of the violation. * * * If a driver is assigned points, he/she will be informed of the assignment of points by the Safe Driver Review Board in writing. The driver may then accept the point assignment or he/she may appeal the assignment of points to the Coordinator of Safety and Security. When points are assessed by the Review Board, the driver who is the recipient of the points has an opportunity to appeal the decision. The Safe Driver Plan includes an appeal process which provides, in relevant part, the following: The driver must inform his/her supervisor in writing of their decision to appeal within five working days of notification of assigned points. The request shall state the driver’s objections to the assignment of points in detail. The supervisor shall then forward the request for appeal to the Coordinator of Safety and Security. A driver who chooses to appeal the assignment of points will be given a copy of all accident information for their review by the investigator prior to the date of the meeting. This will give the driver the opportunity to review all information that will be presented at the hearing and prepare for the hearing in order to rebut any of the information that will be presented. It will also give the driver the opportunity to present testimony and information to the Coordinator of Safety and Security or to offer an explanation of mitigating circumstances prior to points being upheld. After the Safe Driver Review Board’s final recommendation of administrative action is made and any driver’s appeal is heard, all disciplinary action taken by the driver’s supervisor must follow the School Board approved disciplinary policy. For purposes of this matter, the driver appeals the assignment of points to William Hall, the manager of fire, safety, and security. Mr. Hall testified that he reviews all of the information submitted by the driver, and if there is additional evidence or mitigating circumstances that were not before the Review Board, he would meet with the driver for a hearing. If there is no new evidence or mitigating circumstances, Mr. Hall then unilaterally determines the appeal based on the documents. After a driver has exhausted the appeal process, a driver, who is facing a potential suspension or termination based on the accumulation of points, may appeal the coordinator’s decision by using the School Board’s approved complaint process. For purposes of this matter, that appeal goes to the supervisor of professional standards, Matthew Goldrick, who serves as the designee for the superintendent and handles the driver’s predetermination meetings. At the predetermination hearing, the driver is given an opportunity to present any information that she wants prior to any decision being made for a suspension or termination. The superintendent then decides whether to proceed with a recommendation for discipline. The School Board has adopted policy 6.37, which establishes standards for the separation, discipline, and discharge of non-instructional employees, including Respondent. Paragraph (5)(d) recognizes three categories of offenses and a guide for recommended penalties. Relevant to this proceeding are the offenses and recommended penalties for Group III. The penalty for Group III offenses carry a recommended penalty of "up to discharge" for the first violation. The School Board has charged Respondent with violating the Safe Driver Plan by accumulating 10 points within a 12-month period, which results in a recommendation of termination. Respondent was also charged with a violation of a Group III offense, namely accumulating disciplinary actions, no one of which standing alone would warrant discharge. The accumulation of points resulted from four driving violations, which are discussed further below. Driving Violations On Tuesday, December 8, 2015, Respondent was issued a traffic citation for careless driving while operating her bus. Respondent did not immediately report the citation as required by the Safe Driver Plan. On January 6, 2016, the Review Board reviewed Respondent’s December 8, 2015, incident. The Review Board assessed Respondent with a violation for “[f]ailure to report an incident/crash or citation, no matter how minor, while operating a School Board vehicle immediately during regular working hours and as soon as reasonably possible after working hours,” a Category 3 violation. The Review Board determined the incident was preventable and assigned Respondent 10 points. Respondent appealed the Review Board’s assignment of 10 points for the December 8, 2015, incident. On January 21, 2016, a Safe Driver Appeals Meeting was held before Mr. Hall. As a result of the appeal, Respondent’s assigned points were reduced to four points. On April 25, 2016, Respondent was involved in an accident while operating her bus. The Review Board met and assigned Respondent the maximum of two points for improper backing, a Category 25 violation of the Safe Driver Plan. The assessment brought Respondent up to six points in a 12-month period. Respondent did not appeal this assessment of points. On May 23, 2016, Respondent was issued a citation for running a red traffic light signal. On September 14, 2016, the Review Board reviewed Respondent’s alleged violation from May 23, 2016, at which time the Review Board listened to Respondent’s evidence and reviewed the available video. The Review Board determined that the video reflected that Respondent failed to obey the red light traffic signal, a Category 13 violation of the Safe Driver Plan. While such a violation could result in a maximum of four points under the Safe Driver Plan, the Review Board assigned Respondent two points for the violation. The Review Board’s assignment of points placed Respondent at an accumulated eight points for the past 12-months. Mr. Handzus and Mr. Goldrick credibly testified that court action was not necessary to determine fault because the video clearly depicted Respondent failing to obey the red light. On September 14, 2016, Respondent wrote a letter to Mr. Hall seeking to appeal the assessment of two points for failure to obey the red light traffic signal. In the appeal letter, Respondent indicated her objection to the assessment in detail by stating that she ran the red light, because she “had almost no choice but to go through it.” Mr. Hall denied her request for an appeal.1/ Respondent was brought in for a predetermination hearing as part of the disciplinary process because her eight points in a 12-month period would result in a three-day suspension. After the predetermination hearing, and listening to Respondent’s arguments, the recommendation was made to suspend Respondent for three days without pay. Respondent did not appeal the disciplinary action resulting in the three-day suspension.2/ On October 26, 2016, after having been reinstated from her suspension, Respondent was involved in an incident on Deer Run Road where she backed her school bus into a mailbox. On November 7, 2016, the Review Board assigned Respondent the maximum two points for improper backing, a Category 25 violation of the Safe Driver Plan. This was Respondent’s second violation for improper backing. On November 7, 2016, Respondent timely sent a letter to Mr. Hall timely requesting an appeal of the assessment of two points for the October 26, 2016, incident. In the letter, Respondent explained in detail her objection to the assessment of the points by stating that on “[t]he morning of 10/26/2016 at 5:30am . . . I hit a mailbox” and that “[w]hile backing up [she] hit the mailbox.” Mr. Hall reviewed the appeal letter and denied the request for appeal. Mr. Hall testified that he denied the request for appeal because there was no information in the letter that would mitigate Respondent’s conduct and there was an admission regarding the violation. However, Mr. Hall’s actions were a direct contradiction to the appeal process as expressly written in the Safe Driver Plan. The Safe Driver Plan does not provide Mr. Hall the authority to unilaterally deny a driver’s “request for an appeal” or exercise discretion in granting or denying an appeal. Ms. Rodgers was entitled to an appeal so long as she made that request in writing within five days of notification of the assigned points. Respondent complied with that requirement. The appeal process also provides that Respondent would be entitled to a copy of all information for review prior to the date of the meeting to prepare for hearing and given an opportunity to present testimony and mitigation before the points are upheld. Mr. Hall testified that he considered the comments in Respondent’s letter as mitigation. However, under the Safe Driver Plan appeal process, mitigating evidence would be offered at the hearing, not in the notice of appeal letter. Further, the driver checklist in items 7 through 9 restates the procedure as outlined in the appeal process. Simply put, the appeal request letter is only required to include details regarding any objection, nothing more. Mr. Hall did not properly comply with the appeal process in the Safe Driver Plan as written. Pursuant to the Safe Driver Plan, “[c]hanges to the plan may not be implemented without Board approval.” There was no evidence offered at hearing that the written Safe Driver Plan had been changed. Mr. Hall improperly denied Respondent’s request for an appeal and, thus, improperly upheld the Review Board’s decision to assess the two points for the October 26, 2016, violation. Based on the alleged accumulation of 10 points within a 12-month period, Respondent appeared for a predetermination meeting regarding the recommendation for termination of employment. At the predetermination meeting, Respondent was provided the opportunity to offer any mitigating circumstances to the recommendation for termination. The recommendation for termination included the assessment of the two points for the October 26, 2016, incident. Mr. Goldrick considered Respondent’s arguments and determined that there were no mitigating circumstances that would warrant discipline short of termination. The record does not include evidence regarding the mitigation considered by Mr. Goldrick. Following the predetermination meeting, on January 3, 2017, the School District’s superintendent notified Respondent by letter of the recommendation to terminate Respondent’s employment for misconduct. Respondent timely disputed the allegations in the Notice and requested a hearing to appeal the recommendation of termination. By letter dated January 20, 2017, Respondent was notified that the recommendation to the School Board would be modified to one of suspension without pay, effective January 25, 2017, and referral of her appeal to the Division of Administrative Hearings. At the January 24, 2017, meeting of the School Board, the School Board authorized that this case be referred to the Division of Administrative Hearings, whereupon this case ensued. The evidence at hearing demonstrates that Mr. Hall improperly denied Respondent’s request for an appeal of the October 26, 2016, violation. However, given the procedural posture of this case the undersigned has considered whether the Review Board appropriately assigned the two points for the October 26, 2016, incident. The undersigned finds evidence of mitigation in the record. The record demonstrates that on October 26, 2016, Respondent had been driving a new, unfamiliar route for approximately two days before the incident. Respondent stated in her request for appeal letter that it was “pitch-black outside” and her ability to turn was impeded by an oncoming vehicle using its high beam lights. After considering the above mitigating factors, the undersigned finds that the evidence in the record does not warrant a deviation from the Review Board’s assignment of the standard two points for the October 26, 2016, improper backing violation. The evidence supports that the assignment of two points against Respondent for the October 26, 2016, incident was appropriate. The mitigation did not warrant reduction of the points assessed. As a result, the record correctly demonstrates that Respondent accumulated 10 points. Petitioner demonstrated by a preponderance of evidence that there is just cause to terminate Respondent’s employment.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, Hernando County School Board, enter a final order terminating the employment of Mildred Rodgers as a bus driver. DONE AND ENTERED this 30th day of November, 2017, in Tallahassee, Leon County, Florida. S YOLONDA Y. GREEN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of November, 2017.
Findings Of Fact William B. Barker, Jr., is certified as a law enforcement officer in the State of Florida employed by the Walton County Sheriff's Department and stationed at DeFuniak Springs, Florida. On or about 20 June 1981, Diana Marie Preston was driving her automobile west on Interstate Highway 10, in Walton County, Florida, on her way to her grandparents' home in Gulf Breeze, Florida. She had just completed the Law School Admissions Test in Tallahassee that morning and was on her way back home. Due to heavy rain in the area, she was driving carefully and was not exceeding the speed limit. At approximately 3 to 4 p.m., she was hailed by a police officer in a county police car. When she pulled over to the roadside at his request, the officer advised her she had been speeding and requested to see her driver's license. Since her license was in her purse which was in the trunk of her car, she had to get out of her car and open the trunk, at which time the officer noticed a pair of high-heeled shoes she had in there and asked her to take them out, indicating he had been looking at a pair like that for his wife. When Ms. Preston got her license out, the officer requested that she accompany him to his car, get in on the passenger side and close the passenger door. She complied, though she did not close the door completely. During this period, she noticed that though the officer was in uniform, he was not wearing either a name tag or a badge with a number on it. She does not recall whether he was wearing a pistol, but states there was a rifle in the vehicle on which he placed his hand several times while talking to her. The officer took Ms. Preston's driver's license and reached across her to the glove compartment for his ticket book, but at no time did he use his radio to call in either her driver's license number or her car tag number. Before writing out the ticket, the officer indicated he would not issue a ticket to her if she would put on her high heels (she had been driving barefoot) and let him try to guess her shoe size. He stated that for every size he was off in his guess, he would kiss her foot a certain number of times. Ms. Preston repeatedly refused, but because the officer was insistent and she felt she was in a difficult position due to the fact that she was alone on a lightly travelled (at the time) section of highway, she ultimately acquiesced. Though the officer had ample opportunity to see the shoe size when he examined the shoes, he guessed wrong on the size by several sizes. At this time, her left foot was in his lap, and he picked it up and kissed it several times. When he was finished, in the course of conversation, the officer asked her what she had been doing in Tallahassee. She told him she had been taking the LSAT, and his attitude changed immediately. He told her to go on with her trip, but cautioned her not to tell anyone what had happened, as he could get into trouble. Upon being released by the officer, Ms. Preston proceeded on to Gulf Breeze to the home of her grandparents, whom she told about the incident the following day. She did not report the incident to the police nor discuss it until several weeks later when she was contacted by two investigators who showed her a large photograph of individuals who, it was represented to her, were members of the Walton County Sheriff's Department. From this group, she identified the Respondent, Barker, and subsequently again identified him at the hearing as the officer in question, describing him as a heavyset man with a mustache and wearing tinted glasses. Respondent, upon graduation from high school, attended O. W. Junior College and then went on to the University of West Florida where he received his bachelor's degree in criminal justice. He unequivocally denies the allegations against him, stating he had never seen Ms. Preston until the day of the hearing at the hearing room. In fact, his shift was over, and he signed out just prior to 3 p.m. on 20 June 1981. In his opinion and that of his mother, the allegations against him are attributable to his stated position in a political dispute during which he sided against the incumbent sheriff for whom he was working. There is no evidence bearing on this issue other than the testimony of the Respondent and his mother.
Recommendation From the foregoing, it is concluded that the Petitioner failed to prove, by a preponderance of the evidence, that the Respondent is guilty of the allegations contained in this Administrative Complaint. It is RECOMMENDED: That the Criminal Justice Standards and Training Commission issue a final order dismissing the Administrative Complaint. ENTERED this 24th day of January, 1983, in Tallahassee, Florida. ARNOLD H. POLLOCK Hearing Officer Division of Administrative Hearings Department of Administration 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of January, 1983.
The Issue The issue is whether Respondent should be required to pay attorney's fees and costs to Petitioner to compensate her for the defense of an ethics complaint Respondent filed against her with the Florida Commission on Ethics.
Findings Of Fact Respondent J. Curtis Boyd ("Respondent" or "Mr. Boyd") owns property located at 111 Boston Avenue, Fort Pierce, Florida, that he bought in 2002 or 2003. The house on the property was once owned by the late Florida Governor Dan McCarty. Mr. Boyd testified that he has been offered $650,000 to sell the property with the house on it and $1.2 million to sell the land without the house. Mr. Boyd requested and received permission to demolish the house by a 5-to-1 vote of the Historic Preservation Board. That decision was apparently revoked by vote of the City Commission, including that of Petitioner Christine Coke ("Petitioner" or "Ms. Coke"). A complaint filed by Mr. Boyd with the State Attorney accusing Ms. Coke of "misuse of authority" was dismissed on July 6, 2009. Complaint No. 09-087, filed with the Florida Commission on Ethics ("Ethics Commission") on June 25, 2009, was dismissed on July 29, 2009. Mr. Boyd testified that, after the vote of the Historic Preservation Board, he believed Ms. Coke found some unnamed person to appeal the decision to the City Commission. He also testified that, some time later, he found out that the house was not in the historic district and that he did not need permission to demolish it. Mr. Boyd testified that he had overdue property taxes, but that he paid the back taxes and had the assessed value of the property reduced to lower his taxes because of the poor condition of the house. The City of Fort Pierce has waived approximately $70,000 in code enforcement fines on the property, and offered to pay $5,000 for a design fee, but Mr. Boyd noted that the design fee will not go to him but to an architect. Mr. Boyd alleges, with no supporting evidence, that the actions taken by Ms. Coke and others are intended to force him to sell the property to a friend of hers. Based on Mr. Boyd's testimony it is impossible to conclude, as he alleged, that Ms. Coke persuaded some one to appeal the decision of the Historic Preservation Board to the City Commission. There is also no evidence to support or refute Mr. Boyd's allegation that Ms. Coke was motivated by trying to force him to sell his property to a friend of hers. Related to costs and fees, Petitioner's counsel proffered an affidavit of an attorney, filed with the Division of Administrative Hearings on September 23, 2009, representing that the attorney had reviewed the files of Petitioner's counsel and agreed that fees of $1,447.50 for one billing period and of $1,765.00 for another billing period were reasonable. In the absence of supporting testimony and after Petitioner rested her case, the objection to the admission of the affidavit as being untimely filed and unsupported hearsay was sustained. There is no competent substantial evidence that Respondent either made or did not make a complaint against Petitioner with knowledge that the allegations were false or with reckless disregard for whether the complaint contained false allegations. There is also no competent substantial evidence of the amount of fees and costs incurred by Petitioner.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is Recommended that the Florida Commission on Ethics dismiss the Petition for Attorney's Fees and Costs filed by Christine Coke. DONE AND ENTERED this 22nd day of October, 2009, in Tallahassee, Leon County, Florida. S ELEANOR M. HUNTER 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 22nd day of October, 2009. COPIES FURNISHED: Kaye Starling, Agency Clerk Florida Commission on Ethics Post Office Drawer 15709 Tallahassee, Florida 32317-5709 Richard E. Coates, Esquire 200 West College Avenue, Suite 311B Tallahassee, Florida 32301 Patrick Farrell, Esquire c/o J. Curtis Boyd 120 Orange Avenue Fort Pierce, Florida 34950 Philip C. Claypool, Esquire Executive Director and General Counsel Florida Commission on Ethics 3600 Macclay Boulevard, South Post Office Drawer 15709 Tallahassee, Florida 32317-5709 James Peterson, Esquire Linzie Bogan, Esquire Advocates for the Commission Office of the Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050
The Issue The issue in this case is whether the discipline imposed on Respondent, John Enrico (“Enrico”), by Petitioner, City of Cape Coral (the “City”), was appropriate.
Findings Of Fact Based upon the oral testimony and other evidence presented at final hearing, the following findings of fact were made: The City has the authority to monitor and regulate its employees in accordance with the laws and rules of the State of Florida, the City Charter, and ordinances and rules promulgated thereto. Enrico is employed by the City as an instrumentation supervisor in the Water Reclamation Division of the City’s Utilities Department. He has been employed for an indeterminate number of years, but is a “director level” employee.1/ The City suspended Enrico for one week without pay pursuant to the City of Cape Coral Code of Ordinances, Article III, Division 7, entitled Discipline of Regular Employees. (Pertinent sections of the Code of Ordinances are set forth in the Conclusions of Law, below.) The alleged violation was primarily based on an email Enrico sent on June 7, 2012. The June 7 email was sent to Jeff Pearson and copied to Brian Fenske. The June 7 email states in its substantive body: Jeff and Brian, As a courtesy, I am affording both of you a small glimpse into a potential future. If you decide to discipline me regarding my communications outside of this department, please find below what is just the beginning of the resistance you will meet in public forums and otherwise. As a friend, not as a contemporary [sic], I strongly advise you both not to pursue your current course of action, as it would be embarrassing and detrimental to the cities [sic] interests. Please feel free to call me and discuss the matter. Distinct Regards, There was other information attached to the June 7 email, including some narrative by Enrico concerning his rationale for sending an earlier email, excerpts from OSHA regulations and the City Code, and other legal information about quasi-judicial matters, freedom of speech, and the International Covenant on Civil and Political Rights. It is not clear whether the additional information was supposed to be support for Enrico’s actions, or a description of the “resistance” the email recipients could expect to meet in the future if they decided to discipline Enrico. In order to better understand the June 7 email, some discussion of the background leading up to the email is necessary. Early in calendar year 2012, the City began looking at a product called Multitrode. The product was to be used within the City’s sewage system to, inter alia, control, monitor, or report data regarding usage. The system would have an impact on the equipment and services overseen by Enrico. Enrico was directed by Fenske to install the program via email dated May 18, 2012. Enrico was apparently leaving for a two-week vacation just hours after he received the email. He attempted unsuccessfully to contact his superiors to express some concerns he had about how the Multitrode was going to be implemented. Enrico felt that the system had some potential to do harm to the water reclamation system if installed or used incorrectly. He was not able to reach his superiors. Failing to reach his superiors, Enrico sent an email dated May 23, 2012, to Jody Sorrels, a civil engineer employed by the City.2/ The email was copied to Jeff Pearson, Brian Fenske, Dennis Morgan, Oliver Clark, Michael Hines, and Margaret Krym (the City Manager). Except for Krym, all of the recipients of the email were within Enrico’s chain of command in his area of employment. Krym was intentionally copied on the email by Enrico because he wanted someone outside his chain of command to know about his concerns. The Utilities Department did not report directly to the City Manager. Enrico had been disciplined previously for violating the chain of command protocols. The May 23 email contained Enrico’s reasons for why he did not think the Multitrode should be implemented. He did not believe the program was appropriate or the best use of the City’s money. He was concerned that if implemented improperly, it might even cause significant problems for the wastewater system. The email suggests that it is in response to an earlier telephone conversation between Enrico and Sorrels. Enrico’s supervisors were concerned that Enrico had intentionally chosen to copy the City Manager on the May 23 email. Inasmuch as Krym was not within Enrico’s chain of command and had no direct connection to the utilities department, the supervisors felt like Enrico was again attempting to circumvent protocol and create dissension within the City. As a result, the supervisors began to discuss what sort of discipline should be imposed against Enrico for sending the May 23 email. After various discussions between Enrico and his supervisors, cooler heads prevailed. A meeting was held on June 19, 2012, wherein Enrico retreated from his stance and acknowledged the impropriety of sending an email to the City Manager concerning issues outside her area of concern. During his testimony at final hearing, Enrico denied that he had acknowledged it was wrong to copy Krym on the email. The most persuasive evidence is that he did acknowledge his error. At the conclusion of the June 19 meeting, the participants shook hands and it was decided that no discipline would be imposed against Enrico. Enrico’s acknowledgement of his error was a key reason for his superiors’ decision not to impose discipline. However, before the June 19 meeting, Enrico issued the June 7 email. That email followed a June 6, 2012, email, wherein Enrico notified Jeff Pearson that he needed to talk to Pearson concerning the Multitrode program. The June 6 email ended with Enrico stating, “I need a response (phone call) from you by 9AM EST today to discuss the matter, or I may be forced to escalate the issue appropriately.” The June 7 email appears to be the escalation he warned Pearson about. The June 6 email references “Mr. Sorrels [sic] unwarranted and unprofessional email response.” Sorrels had sent an email to Enrico concerning Enrico’s May 23 email. Sorrels’ email included the statement, “I have neither the time nor inclination to entertain an email chain concerning your [Enrico’s] metathesiophobia or ideophobia.” Metathesiophobia is the fear of moving or making changes. The origin of the word meta is Greek (meaning to change), thes is Latin (meaning setting) and phobia is Greek (meaning fear). Ideophobia is an anxiety disorder characterized by the irrational fear or distrust of ideas or reason. Enrico denied being afflicted with either condition. On June 5, 2012, Enrico had responded to Sorrels, copying Pearson and Fenske on an email accusing Sorrels of libel and defamation. Enrico’s email said that Sorrels’ failure to verbally apologize and write a retraction of his statements by June 8 would result in Enrico referring the matter to the city attorney and his own attorneys to seek unspecified damages. This exchange was followed by the aforementioned June 6 and June 7 emails. The June 7 email was apparently the last straw for Enrico’s supervisors and they decided to impose discipline against him. After discussions with the human resources department and city attorney, the city manager approved a one-week suspension without pay as the appropriate sanction. Enrico denies the June 7 email was intended as a threat, but that is how it was perceived by his superiors. The language in the email about the “beginning of the resistance you will meet,” and telling his superiors that “I strongly advise you not to pursue your current course of action” are both, however, certainly threatening in nature. Though, Enrico said that he did not threaten physical harm, thus there was no threat at all, his testimony is not persuasive. In defense of his actions, Enrico claims the City violated his free speech rights under the United States Constitution, his fair labor practices rights under the State Fair Labor Law, and his rights under the Florida Whistleblower’s Act, among other things. None of those defenses are germane to the issue in this proceeding, nor does DOAH have jurisdiction over those laws. It is clear Enrico knows his area of employment and may have some legitimate concerns about the Multitrode system that was implemented. He may have personal feelings about the fiscal propriety of the City’s use of the Multitrode system. Enrico may not particularly like his superiors. However, those feelings do not justify the use of threats.
The Issue At the commencement of the hearing, the parties stipulated that Petitioner had filed applications for Class "A" and Class "C" licenses and was qualified except for the failure to demonstrate good moral character. The bases for the dispute over Petitioner's character were: Petitioner's arrest record; Petitioner's alleged falsification of his applications as to his employment with the Pittsburgh Police Department; and Petitioner's check for the application fee was dishonored for insufficient funds.
Findings Of Fact The Petitioner duly filed applications with the Department of State, Division of Licensing for Class "A" and Class "C" licenses. Except for matters related to Petitioner's good moral character, Petitioner is qualified for licensure. Petitioner's application reflects that he answered the question whether he had been arrested affirmatively with the following comment: The Courts of the Commonwealth of Pennsylvania in all five cases from 1965 to 1974 - ruled that as a Police Officer, I acted within the scope of my authority - These cases stem from being an undercover Narcotics Officer. The Petitioner's arrest records as maintained by the Federal Bureau of Investigation reveal several juvenile offenses, not considered by the Department and not at issue. This record also reveals the following arrests of Petitioner as an adult: Date Place Charge Disposition 06/09/66* Pittsburgh VDD & CA Not guilty 08/15/66* Pittsburgh VUFA Not guilty 08/20/66* Allegheny County VDDCA 06/24/67* Allegheny County VUFA Unavailable per contra 06/30/70 *Only one offense with different charges made on different dates 09/05/74 Allegheny County Theft, VUFA Discharged 09/23/74 05/07/75 Allegheny County Fraud - imper- sonating a public servant 12/19/79 Office of Provost No charge No charge Martial Petitioner presented testimony and supporting documentary evidence that the arrests reported on the FBI criminal history for the dates 06/09/66 through 06/24/67 were all related to the same offense, and that these charges were resolved in favor of the Petitioner by a verdict of not guilty. See Petitioner's Exhibit #1. The judge arrested judgment of the two years' probation for the charge of 05/07/75. See Respondent's Exhibit #2. Petitioner stated that based upon his status as a capital police officer he was not guilty of fraud or impersonation of a public servant. The Petitioner's remaining arrest was on 09/05/74, and was discharged. Petitioner's explanation of these arrests is not consistent with the explanation stated on his application form. According to the resume accompanying his application, Petitioner was employed on the indicated dates in the following positions: Date Position 1963 to 1965 Globe Security 1965 to 1970 Pittsburgh Police Department, special patrolman 1970 to 1973 NAACP special investigator and Bucci Detective Agency 1972 to 1976 Commonwealth Property Police with State of Pennsylvania 1973 to 1974 Part-time security guard in addition to employment listed above May, 1976 January, 1977 Federal Civil Service guard March, 1977 September, 1977 Part-time security guard with A&S Security December, 1978 Sears, Roebuck and Company as to June, 1980 undercover security investigator February, 1979 Security guard to June, 1980 September, 1979 VA, guard at VA Hospital GS5 to June, 1980 June, 1980 Came to Florida Petitioner stated that his check for the application fee bounced because of his travel back and forth to Pennsylvania to try to develop the data to support his application, which depleted his bank account. He has since made the check good and paid the fees by money order.
Recommendation The Petitioner has failed to establish that he has the requisite good character for licensure; therefore, it is recommended that the Petitioner's applications for Class "A" and Class "C" licensure be denied. DONE and ORDERED this 19th day of April, 1982, in Tallahassee, Leon County, Florida. COPIES FURNISHED: Mr. James Barnett 758 Woodville Road Milton, Florida 32570 James V. Antista, Esquire Assistant General Counsel Department of State Division of Licensing R. A. Gray Building, Room 106 Tallahassee, Florida 32301 STEPHEN F. DEAN, Hearing Officer 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 19th day of April, 1982. George Firestone, Secretary Department of State The Capitol Tallahassee, Florida 32301
The Issue Whether Petitioners are entitled to recover costs and attorney's fees against Respondent and, if so, in what amount.
Findings Of Fact At all times relevant to this proceeding, Petitioner, Marsha Strange, was the Mayor of McIntosh, Florida, having served in that position for approximately ten years. The Town of McIntosh (Town or Town of McIntosh) has a population of approximately 400 and has only three paid employees on its staff. The Town of McIntosh has a weak mayoral form of government. Under this system of government, the mayor does not have the power to appoint, promote, or dismiss Town employees or to appoint members to the Town's various committees or boards. Rather, these decisions are made by the elected five-member Town Council. The mayor is not a member of the Town Council and has no power to vote on issues coming before that governing body. Moreover, the mayor of the Town of McIntosh is not paid. On March 5, 1998, Respondent, Mary Lueders Burnett (Respondent), filed a verified ethics complaint against Mayor Marsha Strange, alleging Mayor Strange had violated Section 112.3135, Florida Statutes, regarding the appointment of relatives. In the complaint, Respondent stated that the mayor's brother-in-law, Thurman Kingsley, was appointed as the only person authorized to sign building permits. The complaint stated: I believe that this appointment to a position involving the approval of the Mayor by virtue of her management responsibilities mandated in the Town Charter, constitutes a violation of Section 112.3135, Florida Statutes, regarding the appointing of relatives. While our municipality is less than 35,000, our population is 413. I believe the function involves land planning or zoning as stated in the statute. Within a month of filing the initial complaint against Mayor Strange, Respondent separately filed three additional verified complaints against Mayor Strange. On March 20, 1998, Respondent filed a second complaint against Mayor Strange which alleged that the Town of McIntosh failed to comply with its Comprehensive Plan. Specifically, Respondent claimed that the official zoning map, Public Works Manual, and Land Development Regulations, documents required by the Town's Comprehensive Plan, did not exist. Respondent asserted that this alleged act "constitutes malfeasance and is a gross misuse of public position in violation of Florida Statutes." Notwithstanding Respondent's allegation that the Town had no land development regulations, in a letter dated March 13, 1998, signed by Respondent and attached to this ethics complaint, Respondent cites extensively from the Town's Land Development Code. On April 3, 1998, Respondent filed a third complaint against Mayor Strange alleging that the mayor had (1) improperly determined that the terms of members of the Town's Code Enforcement Board had expired; (2) failed to post notice of vacancies on that board; and (3) failed to adopt rules for the recruitment and appointment of board members. In this complaint, Respondent contended that the alleged acts were a breach of public trust in violation of Sections 112.311(6) and 286.011, Florida Statutes. On April 5, 1998, Respondent filed a fourth ethics complaint against Mayor Strange alleging that on certain property in the Town, land development by a former Town official was taking place without proper permits. In this ethics complaint, Respondent indicated that on March 4, 1998, she had filed a Notice of Complaint with the Town regarding this issue but that the Town's Code Enforcement Officer had determined that the complaint was unfounded. In the ethics complaint, Respondent stated that: It is my belief that the code enforcement officer as well as the mayor and the members of the McIntosh Town Council, under whose pleasure the code enforcement officer is appointed, have violated Section 112.313(6), Florida Statutes, for allowing this unpermitted land development by a former town official. Respondent's second, third, and fourth ethics complaints against Mayor Strange were found to be without merit and dismissed by the Ethics Commission without the necessity of an investigation. The Ethics Commission authorized an investigation of the allegations contained in Respondent's initial complaint, Complaint No. 98-37, alleging a nepotism violation against Mayor Strange. Larry Hill, a senior investigator, investigated the allegations in Respondent's Complaint No. 98-37 on behalf of the Ethics Commission. As a part of his investigation, Mr. Hill interviewed Respondent and Mayor Strange. Following the investigation, Mr. Hill incorporated his factual findings in a Report of Investigation dated June 19, 1998. After considering the Report of Investigation and the Advocate’s recommendation, the Ethics Commission determined that there was no evidence that Mayor Strange advocated, recommended, or otherwise played any role in having Mr. Kingsley appointed to the municipal position. Thereafter, the Ethics Commission issued an Order finding that there was no probable cause to believe that Mayor Strange violated Section 112.3135, Florida Statutes, regarding her brother-in-law's appointment to a Town position as alleged in Respondent's complaint. According to the Report of Investigation, Thurman Kingsley was Mayor Strange’s brother-in-law. However, Respondent admitted she had no evidence that Mayor Strange had advocated or was in any way involved in Mr. Kingsley's appointment to his municipal position as a building official. Furthermore, according to the report, Respondent acknowledged that she knew that Mayor Strange did not have a vote on any official Town matters. During Mr. Hill's interview with her, Mayor Strange indicated that she had taken no action to appoint or promote Thurman Kingsley as the building official for the Town of McIntosh. Also, at hearing, Mayor Strange provided credible testimony that she did not take part in the Town's hiring of Thurman Kingsley and did not have the power to do so. Thurman Kingsley was appointed as building permit official for the Town of McIntosh approximately four years prior to Respondent's filing the complaint of a violation of the nepotism law by Mayor Strange. The minutes of the Town Council meeting at which Mr. Kingsley was approved as a building permit official reflect that Mayor Strange played no role in his appointment to the building committee. At the time Respondent filed the verified complaint against Mayor Strange, she was aware that the mayor had no power to appoint any town official. Moreover, Respondent had no first-hand knowledge of the alleged violations nor had the factual allegations been provided to her by reliable sources. Although Respondent had no knowledge or reliable information to support the allegations, she filed a verified complaint against Mayor Strange. In light of the foregoing, the statements and allegations contained in the Respondent's complaint against Mayor Strange were filed with knowledge that they were false or with reckless disregard for whether the complaint contained false allegations of fact material to a violation of the Code of Ethics. On October 9, 1997, Petitioner, Maxine Holst, was appointed on a temporary basis as Town Clerk for the Town of McIntosh. Six months later, on April 9, 1998, Ms. Holst was appointed to the position as permanent Town Clerk. In both instances, Ms. Holst was appointed by the Town Council and served at the pleasure of and answered to that body. On March 3, 1998, Respondent filed a complaint with the Ethics Commission against Maxine Holst. The complaint alleged that "the issuing clerk" misused her public office by issuing a building permit to the relative of a Town Council member. The complaint further alleged that the permit was issued contrary to applicable issuance criteria and in spite of the fact that the permit had been denied by the former Town Clerk because the necessary requirements had not been met. In Respondent's complaint against Ms. Holst, Respondent, wrote: The issuing clerk was aware of the previous denial of permit. I believe this act represents a direct violation of the Florida Statutes, Section 112.313(6) as misuse of public position. The building permit referred to in Respondent's complaint was for construction of a carport on property owned by Wilshire Walkup, a family member of Howard Walkup. According to Respondent's complaint, when the subject permit was issued, Howard Walkup was a member of the Town Council. On March 9, 1998, Respondent filed a second ethics complaint against Ms. Holst, alleging that she (1) failed to file applicable financial disclosure after being appointed to her public position; and (2) refused to return the former Town Clerk's notary seal left through oversight at the clerk's office. In regard to the first allegation, Respondent stated: A Town Clerk was appointed in October 1997. This was on a temporary basis but later became a permanent appointment. As of this date, according to the [O]ffice of the Marion County Supervisor of Elections, the town clerk has not filed Form 1, Limited Financial Disclosure. This is a violation of the Sunshine Amendment. In regard to the allegation concerning the notary seal, Respondent stated in her complaint: A Town Clerk was appointed in October of 1997. The former Town Clerk, by oversight, left her notary seal at the office. The newly appointed town clerk, M. Maxine Holst, refused, upon the former clerk's three requests to give the notary seal to it's [sic] owner." The letter acknowledged that the notary seal was returned to the former Town Clerk but noted that the act of refusing to return the notary stamp constituted a misdemeanor according to Section 117.05(9), Florida Statutes. Finally, Respondent's letter stated that the alleged act "constituted misuse of public position in violation of Section 112.313(6) of Florida Statutes." On April 3, 1998, Respondent filed a third ethics complaint against Ms. Holst. The allegations in this complaint were identical to those made in the ethics complaint filed by Respondent against Mayor Strange on the same date and described above in paragraph 7. In fact, a copy of the same letter was attached to the complaints filed on April 3, 1999, against Mayor Strange and Ms. Holst. In the third complaint filed against Ms. Holst, Respondent alleged that the terms of members of the Code Enforcement Board had been determined without documentation and concluded that the new members appointed to the Board were chosen without public notice and search. In this complaint, Respondent alleged that: The Town Clerk, Maxine Holst, Mayor Marsha Strange, and Council Members Stott, Smith, McCollum and Walkup determined without documentation that the [Code Enforcement Board] Chairman's and another member's terms had expired. Although the Chairman and the other members wished to be considered for reappointment, the Town Council recruited, without posting a notice that interested residents might apply for the position, and appointed their replacements. I believe that the bogus expirations and the reappointments of hand-picked replacements without notice to board members or the public posting of the vacancies represents a breach of public trust in violation of Florida Statute 112.313(6). The Ethics Commission authorized a preliminary investigation of the complaints filed by Respondent against Maxine Holst. The investigation was conducted by Larry D. Hill, a senior investigator with the Ethics Commission. The results of Mr. Hill’s findings were recorded in a Report of Investigation dated June 19, 1998. Based on the Report of Investigation and the Advocate’s recommendation, the Ethics Commission issued an Order finding that there was no probable cause to believe that Maxine Holst was guilty of the violations alleged in the three complaints filed by Respondent. The initial ethics complaint filed by Respondent against Ms. Holst alleged that Ms. Holst (1) improperly issued a building permit although the application had been previously denied; (2) was aware, when she issued the permit, that the permit had been denied; and (3) issued the permit only because the applicant was related to a member of the Town Council. These allegations were not true. Moreover, at the time the complaint was filed, there was no basis in fact for the allegations made by Respondent. When Margaret Walkup, wife of Wilshire Walkup, first submitted the permit application, it was accepted by the Town Clerk, Barbara Bessent. At the direction of June Glass, the chairperson of the Town's Historic Preservation Board, Ms. Bessent told Mrs. Walkup that the application must also include a site plan. Mrs. Walkup drew a diagram of a carport that was to be constructed and re-submitted the application. Ms. Bessent accepted the application. When a permit application involved a request for construction in the Town’s historic district, the Town's Historic Preservation Board would typically be required to review and approve the application. In this case, Ms. Glass believed that Mrs. Walkup’s application was incomplete in that the diagram drawn on the application did not, in Ms. Glass' opinion, constitute a site plan. In light of her belief, Ms. Glass told Ms. Bessent to send a letter to Mrs. Walkup notifying her that the application was incomplete and/or that it was denied. The letter was never written and no official action was taken on the application. Ms. Holst’s immediate predecessor, Ms. Bessent, never approved or denied the permit application nor did she create a file or in any way document the status of the application. Rather, she put the application in the correspondence file. This failure to document would make it impossible for anyone to know or determine what action, if any, had been taken on the application. On or about October 13, 1999, Margaret Walkup went to the Town Clerk's office and inquired about the status of the previously-filed building permit application. When the inquiry was made, Ms. Holst had been in the position of Town Clerk less than a week, was unfamiliar with the permitting process, and had no knowledge of the permit application in question. Therefore, prior to responding to Mrs. Walkup’s inquiry, Ms. Holst sought the advice of Town Council member Eunice Smith, who was in the office training Ms. Holst. Ms. Smith was an appropriate person to train Ms. Holst for her new position because, several years ago and prior to being elected to the Town Council, Ms. Smith had worked as the Town Clerk. After Ms. Holst and/or Town Councilwoman Smith located the application, Councilwoman Smith advised Ms. Holst that the Town's Land Development Regulations required issuance of the permit because the permit had been pending for more than 45 days. Based on Town Councilwoman Smith's advice and directive, Ms. Holst issued the permit, which allowed the construction of an aluminum carport on the property owned by Wilshire Walkup. Respondent's statements in the March 3, 1999, complaint against Ms. Holst, that the subject permit application was initially denied and that Ms. Holst was "aware" of the denial, were false and had no basis in fact. Finally, Respondent alleged that Ms. Holst issued the permit to Wilshire Walkup because he was related to Howard Walkup, a member of the McIntosh Town Council. This allegation was false and was easily discernable as such. Although Howard Walkup was a member of the McIntosh Town Council when Respondent filed her complaint against Ms. Holst, he was not a member of the Town Council in October 1997 when the permit was issued by Ms. Holst as alleged by Respondent. Respondent offered no explanation of the basis of her belief that at the time she filed the complaint, these statements were true. Thus, the allegations contained in Respondent's first complaint against Ms. Holst were filed with knowledge that they were false or with reckless disregard for whether the complaint contained false allegations of fact material to a violation of the Code of Ethics. As noted in paragraphs 21 and 22, Respondent's second complaint alleged that Ms. Holst failed to file a financial disclosure and also refused to return the notary seal to its owner and the former Town Clerk, Barbara Bessent. The allegation concerning Ms. Holst's failing to file a financial disclosure form is true. As of March 9, 1998, Ms. Holst had not filed the required financial disclosure form. In fact, it was only after Respondent filed this complaint that Ms. Holst first learned that the filing was required. However, upon learning of the requirement, Ms. Holst immediately filed the required financial disclosure form. Respondent stated that the former Town Clerk, Ms. Bessent, left her notary seal in the Town Clerk's Office through "oversight" and, thereafter, requested on three occasions that Ms. Holst give her the seal. There is no indication that Respondent had first-hand knowledge of the facts surrounding the return of Ms. Bessent's notary seal nor was there any evidence that Respondent's allegations were based on information obtained from reliable sources. Moreover, these statements made by Respondent in the March 9, 1998, complaint against Ms. Holst are contradicted by the credible testimony of Ms. Bessent, the person most knowledgeable about the situation involving her notary seal. Respondent's statement that Ms. Bessent left her notary seal in the Town Clerk's office through an oversight is not true. On Ms. Bessent's last day as Town Clerk, she voluntarily and intentionally left her notary seal in the Town Clerk's office after being asked to do so by Town Council member McCullum. Councilman McCullum explained to Ms. Bessent that he wanted to "clear" her and indicated that it would "be safer" for her to leave the notary seal at the office. Ms. Bessent complied with Councilman McCullum's request and never expressed an unwillingness to temporarily leave the notary seal in the Town Clerk's office. The second allegation included in the second ethics complaint, that Ms. Holst refused to return a notary stamp to the former Town Clerk, is false. The former Town Clerk, Barbara Bessent, provided credible testimony that Ms. Holst never refused to return the notary seal on the one occasion that Ms. Bessent asked Ms. Holst for the notary seal. When Ms. Bessent made this request, Ms. Holst, who had been Town Clerk only a few days, told her that if the Town paid for the seal that it belonged to the Town and that she would have to check with the Town Council. Ms. Bessent was familiar with how the Town Council worked and knew and understood that Council members wanted to be consulted on most matters. Ms. Bessent did not believe that Ms. Holst was refusing to give her the seal and did not believe Ms. Holst intended to use the seal. In fact, Ms. Bessent had reason to believe that Ms. Holst was a notary. Several weeks after Ms. Bessent requested that Ms. Holst give her the notary seal, a Town Council member authorized Ms. Holst to give Ms. Bessent her notary seal. Upon receiving this authorization, Ms. Holst gave Ms. Bessent the notary seal. Prior to Ms. Holst's returning the notary seal to Ms. Bessent, and soon after Ms. Bessent resigned as Town Clerk, the Town maintenance man came to the Town Clerk's Office to retrieve Ms. Bessent's personal items that she had left in the office. A few weeks later, Ms. Glass wanted to have Ms. Bessent notarize something for her. After Ms. Bessent told Ms. Glass that her notary seal was in the Clerk's Office, Ms. Glass volunteered to go to the Clerk's Office and retrieve the seal. Ms. Glass went to the office and asked for Ms. Bessent's notary seal. Ms. Holst did not give Ms. Bessent's notary seal to either the maintenance man or to Ms. Glass because she believed that it was improper to give Ms. Bessent's notary seal to a third party. At the time Respondent made the statements regarding the notary seal in the March 9, 1998, complaint against Ms. Holst, she either knew they were false or made them with reckless disregard for whether the complaint contained false allegations of fact material to a violation of the Code of Ethics. The allegation in Respondent's third ethics complaint against Ms. Holst was that she, the mayor, and Town Council members had improperly determined that the terms of the Town's Code Enforcement Board had expired. This allegation is false and has no basis in fact. When Respondent made the statements and allegations in the complaint, filed on April 3, 1998, she either knew they were false or made them with reckless disregard for whether the complaint contained false allegations of fact material to a violation of the Code of Ethics. On January 8, 1998, Petitioner Richard McGath, a retired Sarasota building inspection official and resident of the Town of McIntosh, was appointed as the Town's code enforcement officer. This is a voluntary position, and one for which Mr. McGath receives no compensation. Mr. McGath spends about two hours a week performing duties associated with his position as the Town's code enforcement officer. On March 3, 1998, less than two months after Mr. McGath agreed to accept the Town's position of code enforcement officer, Respondent filed a verified ethics complaint against him. In the complaint, Respondent alleged that Mr. McGath failed to act on a matter and that such failure was a misuse of his position. The alleged act giving rise to Respondent's complaint against Mr. McGath was that the Town Clerk had improperly issued a building permit to Town resident Wilshire Walkup for construction of a carport, although it failed to meet the requirements of the Town's Historic Preservation Board. Respondent felt that the permit was issued only because Wilshire Walkup was related to Town Council member Howard Walkup. On or about December 10, 1997, two months after the subject permit was issued, Respondent filed a Notice of Complaint with the Town Clerk, alleging that Mr. McGath refused to take action when he determined that Wilshire Walkup had constructed an aluminum carport. The position of code enforcement officer was vacant at or near the time Respondent's December 1997 Notice of Complaint was filed. Therefore, no immediate action was taken on the Respondent's complaint. However, soon after Mr. McGath's appointment as code enforcement officer, he investigated Respondent's complaint regarding the permit issued to Wilshire Walkup. During the course of his investigation, Mr. McGath determined that the building permit had been issued to Wilshire Walkup on October 13, 1997. Mr. McGath then went to Wilshire Walkup's property and observed that an aluminum carport had been constructed. Mr. McGath believed that the structure was in violation of Town ordinances. However, Mr. McGath issued a one-time waiver for the structure because the Town Clerk had issued the building permit on October 13, 1997, and by the time he assumed the position of code enforcement officer, the structure already had been constructed. Based on Respondent's December 1997 Notice of Complaint, the structure had likely been constructed as early as December 10, 1997. Mr. McGath explained to Mr. Walkup that any further modifications on the structure would have to comply fully with all applicable code requirements. These comments were noted on the response portion of Respondent's Notice of Complaint. Mr. McGath took the action he did with respect to Wilshire Walkup's carport because, prior to his investigation, the building permit had been issued and the carport had already been constructed. Both of these events occurred before Mr. McGath was appointed as the Town's code enforcement officer. Based on his experience and given the facts related to the Wilshire Walkup project, Mr. McGath believed that the course of action he chose was a prudent one. Respondent also alleged that Mr. McGath took no action against Wilshire Walkup because he was related to Howard Walkup, a member of the Town council. First, as stated in paragraph 33, Howard Walkup was not a member of the Town Council at the time the permit was issued. Second, after Howard Walkup was elected to the Town Council in November 1997, he never attempted to influence or even discuss the matter with Mr. McGath during his investigation of the matter. Finally, prior to his investigating Respondent's December 1997 Notice of Complaint, Mr. McGath had never met Wilshire Walkup and did not know that he was related to Town Councilman Howard Walkup. The action taken by Mr. McGath relative to Respondent's complaint regarding Wilshire Walkup's aluminum carport was not a misuse of his position as alleged by Respondent. Respondent had no evidence to base her claim that Richard McGath misused his public office for private gain. Yet, she filed a verified complaint with the Commission alleging that he had done so. Respondent offered no reasonable explanation or basis for her believing that when the statements in her ethics complaint were made, that they were true. In light of the foregoing, the statements and allegations contained in Respondent's complaint, filed on March 3, 1998, against Mr. McGath were filed with knowledge that they were false or with reckless disregard for whether the complaint contained false allegations of fact material to a violation of the Code of Ethics. On April 14, 1998, Respondent filed a second ethics complaint against Mr. McGath. In that complaint, Respondent alleged that Mr. McGath had violated Section 112.313(6), Florida Statutes, by allowing unpermitted land development by a former Town official. In the complaint, Respondent noted that she had previously filed a Notice of Complaint with the Town regarding the alleged unpermitted land development and that the code enforcement officer, Mr. McGath, had determined that the complaint was unfounded. Respondent's Notice of Complaint regarding the alleged unpermitted land development was filed with the Town on March 4, 1998. Mr. McGath investigated the matter and determined that on the property in question, a culvert was being put in to replace another culvert that had been crushed. Based on his investigation, Mr. McGath did not find that there was unpermitted land development and thus concluded that Respondent's complaint was unfounded. This finding was made on March 12, 1998. Respondent learned of Mr. McGath's finding on April 1, 1998, but never questioned him regarding the reason for his finding. On April 14, 1998, without making any inquiry into the basis of Mr. McGath's finding, Respondent filed an ethics complaint alleging that Mr. McGath misused his public position by allowing alleged unpermitted land development. Respondent had no factual basis upon which to base the statements and allegations contained in the ethics complaint against Mr. McGath. In light of the foregoing, the statements and allegations contained in Respondent's complaint filed on April 14, 1998, against Mr. McGath were filed with knowledge that they were false or with reckless disregard for whether the complaint contained false allegations of fact material to a violation of the Code of Ethics. The Ethics Commission authorized a preliminary investigation of the complaints filed by Respondent against Mr. McGath. The investigation was conducted by Larry Hill, a senior investigator with the Ethics Commission. Thereafter, the Ethics Commission issued an Order finding no probable cause to believe that Mr. McGath was guilty of the violations alleged in the two complaints filed by Respondent. Respondent frequently attends the Town Council meetings and is knowledgeable of the workings of the Town of McIntosh. Moreover, Respondent knows how to obtain public documents through public records requests and has made such requests on a regular basis. The record reveals that for many years Respondent attended many Town Council meetings, made numerous public record requests to the Town of McIntosh, and wrote numerous letters to the Town Council, various governmental agencies, and officials. In many of those letters, Respondent complained of alleged violations by Town officials, cited statutes, codes, and ordinances, and quoted liberally from Town ordinances, Town council minutes, and other documents. Many of the letters prepared by Respondent reflect that she had extensively researched selective issues contained therein. In fact, Respondent indicated in one letter that based on her research, she had determined that certain conduct constituted a misdemeanor offense. However, in the instant case, Respondent not only failed to research the facts alleged in the complaints, but apparently never made even a cursory review of the Town records prior to leveling her complaints against Petitioners. Where allegations are made under oath, as in this case, it is appropriate for a complainant to at least make a cursory review of the facts before filing a complaint alleging officials have violated Florida Statutes. In the instant case, between March 3, 1998, and April 5, 1998, Respondent filed a total of nine verified ethics complaints against Petitioners. Three of the complaints were dismissed by the Ethics Commission without an investigation. In the remaining six complaints which are the subject of this proceeding, Respondent made numerous unsubstantiated allegations and statements of fact to which she had no personal knowledge. Respondent also failed to check the accuracy and veracity of statements before she filed these complaints. Based on the foregoing, it is clear that Respondent filed the ethics complaints against Petitioners with a malicious intent to injure the reputations of Petitioners because they were filed with the knowledge that the complaints contained one or more false allegations, or with reckless disregard for whether the complaints contained false allegations of fact material to a violation of the Code of Ethics. In defending themselves against the allegations in the subject complaints and in this proceeding, Petitioners have been represented by S. Scott Walker, Esquire, and Gary Printy, Esquire. The normal hourly rate for S. Scott Walker and Gary Printy, counsel for Petitioners, is $175.00 per hour. This is a reasonable hourly rate. However, in this case, the hourly rate assessed to Petitioners was $75.00. The hourly rate of $75.00 is also reasonable. S. Scott Walker expended 47.70 hours on this matter, including time spent in this proceeding. Mr. Printy expended four hours on this matter. The total attorney time expended on this matter, 51.70 hours, is reasonable. The attorney's fee of $4,109.47 incurred by Petitioners as a result of Mr. Walker's representation is reasonable. Also, the attorney's fee of $400.00 incurred by Petitioners as a result of Mr. Printy's representation is reasonable. Reasonable costs of $231.98 were incurred in connection with defense of the ethics complaints against Petitioners and in this proceeding.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby: RECOMMENDED that a final order be entered finding that Respondent, Mary Lueders Burnett, is liable for attorney's fees of $4,509.47 and costs of $231.98. RECOMMENDED this 15th day of September, 1999, in Tallahassee, Leon County, Florida. CAROLYN S. HOLIFIELD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 15th day of September, 1999. COPIES FURNISHED: S. Scott Walker, Esquire Post Office Box 1070 Gainesville, Florida 32602-1070 Mary Lueders Burnett Post Office Box 381 McIntosh, Florida 32664-0381 Sharon Moultry, Clerk Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Dana Baird, General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149
Findings Of Fact Respondent, Richard C. Lockman, Jr., is, and at all times relevant to this proceeding, has been a certified law enforcement officer, having been issued certificate number 02- 15677 by the Criminal Justice Standards and Training Commission. Richard Lockman was employed by the Town of Windermere Police Department from March 18, 1980 through May 22, 1987. During the relevant periods of 1986 and 1987, his rank was sergeant. His immediate supervisor was the Windermere police chief, Jeffrey C. Villella. From summer 1986 until April 1987, Chief Villella was building a personal residence and was absent from the police department for several days each week, using accrued leave time. In the chief's absence, being next in rank, Sgt. Lockman was generally in charge of the daily affairs of the department. Sgt. Lockman began hearing and became aware of irregularities in the chief's administrative practices. A town council member, Pete Wages, approached Sgt. Lockman and asked about Chief Villella's use of a police vehicle for personal business, and later asked about discrepancies in the chief's time sheets. On another occasion, Councilman Wages asked him about the chief's operation of a private security guard business while in his police department office. Each time Sgt. Lockman provided information that tended to support the councilman's suspicions. From other sources, Lockman heard stories about the possibility that the son of the contractor who was building Chief Villella's house was involved in drugs. Lockman was concerned that the chief did not aggressively pursue drug investigations, but rather was more interested in burglaries in the Town of Windermere. Someone reported that tangible evidence was not being properly handled at the police department. John P. Luff was part-time city manager for the Town of Windermere from January through June 1987. He and Forrest Danson, a council member who was designated "police commissioner", were responsible for reviewing the activities of the police department. John Luff was aware of friction between Chief Villella and Sgt. Lockman but ascribed it to a personality conflict. He considered both men to be honest. After the allegations came to his attention, John Luff discussed them with Chief Villella and the chief denied them. When Luff reviewed the police time sheets he had no basis to question them. Luff also believed that Villella's use of his vehicle was proper. At some point Villella told him that Wages and Lockman were out to get the chief's job. During the controversy, one day in early 1987, Sgt. Lockman was arriving for duty when Chief Villella apprehended him from the vicinity of Councilman Wages' office. The chief ordered him to his office in what Lockman considered was an uncharacteristically agitated manner. Lockman was concerned about his job as he knew that he had been furnishing information to Councilman Wages. Lockman also felt that in his agitation, Chief Villella might threaten him or insist that he stop investigating the chief's activities. Without Chief Villella's permission, and using a small concealed tape recorder, Lockman taped a portion of their conversation in the chief's office that day. The session never produced the anticipated threats nor any "smoking gun". Rather Chief Villella was upset that Sgt. Lockman had failed to inform him of an important meeting, saying "Once again you have discredited me and this department." Sgt. Lockman found the notice of the meeting under a pile of papers on the chief's desk, and the meeting ended. Sgt. Lockman had taped a counseling session on another occasion, but with the chief's permission. The above incident is the first and only time he operated his microrecorder surreptitiously in a meeting with the chief. On or about May 1, 1987, Sgt. Lockman was summoned again to Chief Villella's office and was stripped of his authority and his vehicle. Lockman surmised this was the result of the chief's learning the full details of his disclosures to Councilman Wages. The next day, Lockman met with John Luff and with Councilman Danson at town hall. He was upset at having been demoted. He played the tape for the two men, saying that he wanted to show them what he had to do to protect himself. He did not state that he had been conducting a criminal investigation, but he assured Councilman Danson that the tape was legal because he (Lockman) had been a party to the taped conversation. Lockman asked that a full independent investigation be done of the police department, but failed to provide specific details to John Luff's satisfaction. Lockman denied that he was out to "get" Jeff Villella. No independent investigation was conducted. Against the recommendation of the police complaint review board constituted under the policeman's bill of rights, the town council terminated Sgt. Lockman the end of May, 1987. After the termination, Jeff Villella found out about the taped conversation from Forrest Danson and John Luff. He was able to identify the occasion of the meeting from the quoted phrase, "Once again you have discredited me and the department". Upon advice, Villella reported the incident to the Orange County Sheriff's department and to the Florida Department of Law Enforcement. Criminal charges were brought against Richard Lockman, but were dismissed in a pre-trial intervention procedure. Richard Lockman sued the town and various individuals in federal court. The jury found that he had been wrongfully discharged as a "whistle blower", and awarded damages and reinstatement pursuant to Section 112.3187(9), F.S. The case is on appeal. According to one witness, the upheaval surrounding Windermere's police department was typical small town politics. There was no evidence of actual criminal wrongdoing by Chief Villella, although there was some evidence of casual or sloppy administrative practices. Richard Lockman exercised poor professional judgement by allowing himself to become part of the factionalism and by not reporting his concerns to an outside authority such as the Florida Department of Law Enforcement. He undertook his own private investigation. The circumstances surrounding Richard Lockman's intercept of Chief Villella's conversation reflect both fear for his job and zeal for his investigation. Those circumstances do not clearly establish the violation alleged in the administrative complaint.
Recommendation Based on the foregoing, it is hereby, RECOMMENDED: that the Criminal Justice Standards and Training Commission enter a Final Order dismissing the complaint against Richard C. Lockman, Jr. DONE and ENTERED this 31st day of May, 1990, in Tallahassee, 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 31st day of May, 1990. APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 89-4539 The following constitute specific rulings on the findings of fact proposed by the parties: Petitioner Adopted in paragraph #1. Adopted in paragraph #2. Adopted in substance in paragraph #8 and 4. Adopted in paragraph #4. Adopted in paragraph #8. Respondent Adopted in paragraph #1. Adopted in paragraphs #2 and 3. Adopted in substance in paragraph #3. Adopted in paragraph #4. and 5. Rejected as irrelevant. and 8. Adopted in part in paragraph #8. The record does not establish that and Villella had just met with the council member. Adopted in paragraph #12. Adopted in paragraph #13. Adopted in paragraph #16. Rejected as irrelevant and unsupported by the record in this proceeding. Adopted in paragraph #15. Adopted in substance in paragraph #8. Adopted in paragraph #10. through 19. Rejected as unnecessary. COPIES FURNISHED: Elsa Lopez Whitehurst, Esquire Office of General Counsel Florida Department of Law Enforcement P.O. Box 1489 Tallahassee, FL 32302 Thomas J. Pilacek, Esq. Springs Offices 2101 W. State Road 434 Suite 105 Longwood, FL 32774 James T. Moore, Commissioner Department of Law Enforcement Post Office Box 1489 Tallahassee, FL 32302 Jeffrey Long, Director Criminal Justice Standards Training Commission Post Office Box 1489 Tallahassee, FL 32302
