The Issue Whether the Respondent violated Section 106.09(1), Florida Statutes, by accepting four cash contributions in excess of the legal limit.
Findings Of Fact 1. Respondent was a candidate for the Orlando City Commission, District 5, in the March 2010 election. 2. On July 13, 2009, Respondent filed his 2009 Q2 campaign treasurer’s report covering the period of April 1, 2009, through June 30, 2009. Respondent certified that the report was true, correct, and complete. Respondent’s report listed four $100 cash contributions received on May 15, 2009.' The four cash contributions were from Virginia Howell, Enrique Howell, Judith White, and Sam Cahman. 3. On July 20, 2009, Alana Brenner, the Orlando City Clerk, sent Respondent a letter notifying him that she discovered what appeared to be several items on his 2009 Q2 report which may be election law violations. Ms. Brenner listed the four excessive cash contributions as possible violations. . 4. On the bottom of page 23 of the June 2008 Candidate’s Handbook (Handbook), it states in bold letters that effective January 1, 2008, the maximum contribution a person can accept in cash or by means of a cashier’s check is $50. 5. Respondent testified in his November 5, 2009, affidavit that he possessed and had read the Handbook. | 6. On August 29, 2009, Respondent sent the Commission’s investigator, Cedric Oliver, a letter that stated: In response to Commission Daisy Lynum’s complaint to the election office in regards to the acceptance of four cash contribution[s] of $100.00, the Vibert White Campaign committee has taken steps to reverse this benign and small error. Due to our mistake in following the guidelines of an older election manuscript that allows for $100.00 cash gifts we failed to consult the newer " Respondent mislabeled the 2009 Q2 report as a G1 report. Faa004 (7/09) instructional guide that allows for only $50.00 cash offerings. Thus, we are sending the contributions back to the donors. 7. Despite Respondent’s promise to send back the excessive cash contributions, there was no record of the cash being returned to the contributors. 8. On October 12, 2009, after the complaint was filed in this case, Respondent filed an amended 2009 Q2 campaign report. Respondent certified the report was true, correct, and complete. On the report, Respondent changed the four May 15, 2009, $100 cash contributions to four August 11, 2009, $100 check contributions. 9. There was no record of the four checks being deposited in Respondent’s campaign bank account. 10. Respondent’s conduct was willful. Respondent accepted the four excessive cash contributions while showing reckless disregard for whether he was prohibited from accepting cash contributions in excess of $50.
Conclusions For Commission Eric M. Lipman General Counsel 107 W. Gaines Street Collins Building, Suite 224 Tallahassee, FL 32399 For Respondent Frederic O’Neal - PO Box 842 Windermere, FL 34786
Appeal For This Case This order is final agency action. Any party who is adversely affected by this order has the right to seek judicial review pursuant to Section 120.68, Florida Statutes, by filing a notice of administrative appeal pursuant to Rule 9.110, Florida Rules of Appellate Procedure, with the Clerk of the Florida Elections Commission at 107 West Gaines Street, Suite 224, Collins Building, Tallahassee, Florida 32399-1050, and by filing a copy of the notice of appeal with the appropriate district court of appeal. The party must attach to the notice of appeal a copy of this order and include with the notice of appeal filed with the district court of appeal the applicable filing fees. The notice of administrative appeal must be filed within 30 days of the date of this order is filed with the Commission. ‘The date this order was filed appears in the upper right-hand corer of the first page of the order. Copies furnished to: Eric M. Lipman, General Counsel Vibert White, Respondent (certified mail) Frederic O’Neal, Attorney for Respondent (certified mail) Daisy W. Lynum, Complainant Florida Division of Elections, Filing Officer Faa004 (7/09) ae
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer recommends that the Florida Real Estate Commission revoke the registration of Ronald W. Hoffman as a registered real estate salesman. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 15th day of August, 1977. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 15th day of August, 1977. COPIES FURNISHED: Bruce I. Kamelhair, Esquire Florida Real Estate Commission 2699 Lee Road Winter Park, Florida 32789 Mr. Ronald W. Hoffman 722 Lithia Road Brandon, Florida 33511 ================================================================= AGENCY FINAL ORDER ================================================================= FLORIDA REAL ESTATE COMMISSION FLORIDA REAL ESTATE COMMISSION, An Agency of the State of Florida, Petitioner, PROGRESS DOCKET NO. 3140 HILLSBOROUGH COUNTY vs. CASE NO. 77-679 RONALD W. HOFFMAN, Respondent. /
The Issue The issues are whether Petitioner effectively elected to move her retirement account from the Florida Retirement System (“FRS”) Pension Plan to the FRS Investment Plan prior to her retirement from state employment or, if not, whether Respondent, State Board of Administration (“SBA”) is estopped from claiming that Petitioner did not successfully elect to move her retirement account into the FRS Investment Plan.
Findings Of Fact Based on the evidence adduced at hearing, and the record as a whole, the following Findings of Fact are made: Petitioner, Adrian Wagner began her state employment on April 22, 1994, with the Department of Health and Rehabilitative Services, which was renamed the Department of Children and Family Services after a 1996 reorganization. Since 2012, the agency has been named the Department of Children and Families. Upon her hiring, Ms. Wagner was enrolled in the Pension Plan, which was the only retirement program available for eligible employees in 1994. In 2002, the Investment Plan was made available for employees participating in the FRS. Ms. Wagner was provided a three month window, from December 1, 2002, through February 28, 2003, to switch to the Investment Plan. The Plan Choice Administrator did not receive an election from Ms. Wagner during the three month period. Therefore, Ms. Wagner remained in the Pension Plan by statutory default. See § 121.4501(4)(a), Fla. Stat. Ms. Wagner changed employers but remained in the FRS system until her last day of employment on April 3, 2019. At the time of her retirement from FRS-eligible employment, Ms. Wagner was working for the Alachua County Sheriff’s Office. On March 4, 2019, Ms. Wagner logged onto the FRS website, MyFRS.com, from her home computer. Her intention was to use the second election opportunity afforded by section 121.4501(4)(f), Florida Statutes, to move from the Pension Plan to the Investment Plan. Ms. Wagner recalled clicking a green button to change her plan, which took her to a page that read, “ready to make a decision” to change from the Pension Plan to the Investment Plan. It set out the steps needed to make the change. Ms. Wagner testified that she clicked on a green arrow that said, “change your plan,” which took her to a page that set forth the amount of money she would have in the Investment Plan. She continued to a page showing the different plans available to participants in the Investment Plan. The website advised her to contact an Ernst and Young (“EY”) financial planner to discuss her plan options. Ms. Wagner testified that a few minutes later she used the phone number provided by the MyFRS.com website to contact the EY financial planners. She testified that the EY planner with whom she spoke was named “Josh.” The EY call summary log for Ms. Wagner was entered into evidence. The log is a record of every phone call between EY and Ms. Wagner. It includes the date and time of the call, the name of the EY employee who spoke to Ms. Wagner, and a brief summary of their discussion. The EY call summary log identified the EY planner who spoke with Ms. Wagner at 12:10 p.m., on March 4, 2019, as Joshua Kantrowitz. Ms. Wagner testified that Mr. Kantrowitz told her that he could not see in his computer that she had made the switch to the Investment Plan. While Mr. Kantrowitz waited, Ms. Wagner clicked several “back” buttons on the MyFRS.com website. She then went through the same page progression she had done previously to make her plan selection. Ms. Wagner recalled finalizing her decision by clicking a button that read “send,” or “submit,” or “continue.” Ms. Wagner testified that Mr. Kantrowitz told her that he could now see that she had elected to change her retirement from the Pension Plan to the Investment Plan. They discussed fund options, tax questions, and penalties for taking funds out of the Investment Plan. Mr. Kantrowitz verified Ms. Wagner’s email address so that he could send her an FRS Investment Beneficiary Form. Ms. Wagner understood Mr. Kantrowitz to say that she would not be able to see that she had changed to the Investment Plan on the website for about a month. The conversation was interrupted when the phone connection was lost. Ms. Wagner testified that it was her understanding that she had successfully changed her retirement from the Pension Plan to the Investment Plan, and that this change had been confirmed by Mr. Kantrowitz. A transcript of the conversation between Ms. Wagner and Mr. Kantrowitz was entered into evidence. The transcript does not confirm every aspect of Ms. Wagner’s recollection. The transcript records that Ms. Wagner told Mr. Kantrowitz that she “just switched over from the FRS Pension Plan to the Investment Plan.” Mr. Kantrowitz asked when she made the switch. Ms. Wagner responded, “I just hit it today. Did it today.” She added that she made the election “about ten minutes ago.” The transcript clarifies that Mr. Kantrowitz accepted, but did not confirm, Ms. Wagner’s statement that she made the switch to the Investment Plan. After Ms. Wagner told him that she made the switch only 10 minutes ago, Mr. Kantrowitz stated: Okay. And you did it by--basically, you know, if you do--you know, it’s still being processed at the moment. Basically, you know, in the next month, it’s going to make that conversion. In order to, you know, switch and make that choice, you know, the types of investments you’re putting into. Okay. So I do want to keep you aware of that if you did fill it out today, okay. Mr. Kantrowitz never confirmed that the second election had been completed nor did he state whether he could or could not see the change on his computer. Mr. Kantrowitz simply accepted Ms. Wagner’s word and went on to tell her what would happen next if she indeed made the change. Mr. Kantrowitz did state that the conversion would be made in the next month, confirming in part Ms. Wagner’s recollection that she was told that it would be a month before she could see the switch to the Investment Plan on the website. Again, however, this statement was contingent: if Ms. Wagner made the change, the conversion would take about a month. The EY call summary log entry for the March 4, 2019, conversation, presumably completed by Mr. Kantrowitz, records Ms. Wagner’s “Question or Problem” as “made a switch to the FRS IP. [D]oesn’t plan to work in the FRS anymore.” The log records the “Resolution” with a series of four bullet points: talked about IP. taxation, timelines, HIS. says she spoke with admin and they said she would hit NRA at April 1 for 25 YOS SR. she did the 2nd election online and was defaulted into the FRS RDF. needs to set up beneficiaries sending out beneficiary form It could be argued that the second bullet point confirms that Ms. Wagner successfully completed the second election into the Investment Plan. However, when read in tandem with the transcript, Mr. Kantrowitz’s notes clearly set forth his summary of the conversation as it occurred, not his independent conclusion that Ms. Wagner had completed the second election. After the call with Mr. Kantrowitz was dropped, Ms. Wagner called back to inquire as to her exact retirement date. She spoke briefly with another EY planner, Zach Brown, who told her that the Division of Retirement keeps the record of official years of service for employees. Mr. Brown transferred the call to the Division of Retirement. The transcript indicates that Ms. Wagner remained on hold for some time, then hung up before speaking with a Division of Retirement representative. Ms. Wagner testified that on March 18, 2019, she again contacted the EY financial planners. She spoke for roughly a half-hour with a woman whose name she did not recall. The woman verified Ms. Wagner’s personal account information. After being verified, Ms. Wagner asked tax and health care subsidy questions and stated that she planned eventually to move her Investment Plan account from EY to an outside investment firm. Ms. Wagner testified that the EY planner never stated that she was not enrolled in the Investment Plan. The EY call summary log does not show a phone call from Ms. Wagner on March 18, 2019. Ms. Wagner testified that on March 19, 2019, she met with Shawn Powers, the human resources manager for the Alachua County Sheriff’s Office, to discuss Ms. Wagner’s impending retirement. As Ms. Powers filled out a retiree insurance data sheet, Ms. Wagner told her that she had enrolled in the Investment Plan. Ms. Powers cautioned her about the risks involved in the Investment Plan. Ms. Wagner assured her that she understood the risks. Ms. Powers checked the “Investment Plan” box on the insurance form. Ms. Wagner signed the form, attesting to her understanding that she had made the election to move from the Pension Plan to the Investment Plan. Ms. Wagner testified that, after the March 4, 2019, conversation with Mr. Kantrowitz, she received several emails from EY financial planners. She understood these emails as indirect confirmation that she had successfully elected to move to the Investment Plan. During cross-examination, Ms. Wagner conceded that none of these communications affirmatively stated that she was now in the Investment Plan. The third-party Plan Choice Administrator for the Investment Plan is Alight Solutions. FRS members who wish to utilize their second election have multiple options: they may complete and mail in a hard copy form; they may submit a second election form on the MyFRS.com website; or they may log into their account on the MyFRS.com website and go through the process of submitting and confirming their second election online. Fla. Admin. Code R. 19-11.007(3). If an FRS member successfully utilizes the online MyFRS.com process for submitting a second election, an “election confirmation” page appears that informs the member that the election has been received by Alight Solutions. Ms. Wagner had no specific recollection of receiving an electronic confirmation that her election to move to the Investment Plan had been successfully submitted or that it had been received by Alight Solutions. If an FRS member successfully submits an election form to Alight Solutions, a hard copy letter is mailed to the member confirming receipt. Ms. Wagner had no specific recollection of receiving any type of correspondence confirming receipt of her Investment Plan election via conventional mail. Ms. Wagner retired from the Alachua County Sheriff’s Office on April 3, 2019. The parties stipulated that the SBA has no record of receiving a second election from Ms. Wagner during her term of employment with an FRS-participating employer. On April 8, 2019, Ms. Wagner logged onto the MyFRS.com website and saw that she was still enrolled in the Pension Plan. Ms. Wagner immediately phoned the number for the EY financial planners and was transferred to a “solutions person” named Nichole. Ms. Wagner explained to Nichole that on March 4, 2019, she had elected to move her retirement account from the Pension Plan to the Investment Plan via the MyFRS.com website. She provided Nichole with the chronology of events from March 2019 as she remembered them. Nichole told Ms. Wagner that she would research the matter and get back to her within two weeks. Ms. Wagner testified that on or about April 22, 2019, Nichole phoned her to say that she could find no record of anything Ms. Wagner claimed to have done on the MyFRS.com website. Nicole told Ms. Wagner that she would need more time, possibly another two weeks, to do further research on the matter. Ms. Wagner told Nichole how upset she was. Nichole assured Ms. Wagner that she would do her best to find out what happened. Nichole also stated that she would send Ms. Wagner a form to request that the SBA intervene. Ms. Wagner subsequently filed a Request for Intervention, which was received by the SBA on May 17, 2019. Ms. Wagner testified that after she filed her Request for Intervention, but before the SBA responded, she attempted to contact Nichole. Her call was answered by an unnamed EY planner who stated that he would remain on the line while putting her through to a solutions person. Ms. Wagner began speaking with the solutions person but was interrupted by the EY financial planner, who stated that he had found notes by Mr. Kantrowitz indicating that she had changed from the Pension Plan to the Investment Plan. It is highly likely that the unnamed EY financial planner was referencing the EY call summary log notes quoted at Finding of Fact 18. As found above, Mr. Kantrowitz’s contemporary notes reflected what he was told by Ms. Wagner. The notes do not constitute an independent confirmation that Ms. Wagner successfully completed her second election. The SBA submitted into evidence a spreadsheet titled “Participant Web Activity Detail.” SBA witness Allison Olson testified that this document was produced by Alight Solutions in response to her request for all records of Ms. Wagner’s March 4, 2019, activity on the MyFRS.com website. Ms. Olson is the Director of Policy, Risk Management, and Compliance in the Office of Defined Contribution Programs. She credibly testified that she is familiar with reading the Alight Solutions spreadsheets and that she saw nothing on Ms. Wagner’s page indicating that Alight Solutions received her Investment Plan election. Petitioner’s information technology expert, Philip Schwartz, testified that the document provided by Alight Solutions was a “program log,” a high level program that runs to handle a particular task such as an accounting function. Mr. Schwartz testified that he suggested to his client that she request the “server log” for the relevant date. The server log captures every keystroke and click made by a user such as Ms. Wagner, even in situations in which the server is too busy to complete the requested function. Mr. Schwartz believed the program log was insufficient because it showed only which page of the website Ms. Wagner was on at a given moment, not which buttons she clicked or whether she had hit the “send” button. Mr. Schwartz’s suggestion was that Ms. Wagner might have done everything necessary to complete the second election but that the MyFRS.com server may not have recorded her election. The server log would have provided a more accurate representation of Ms. Wagner’s intentions. Ms. Olson testified that, after an informal hearing attempting to resolve the case, she requested a server log from Alight Solutions. The company responded that it did not have the server log. Ms. Olson testified that the program log would indicate the second election had it been completed by Ms. Wagner. Ms. Olson stated that FRS members are always advised to follow through and make sure their election has been received. Mr. Schwartz testified that there is no industry standard as to the length of time a program log should be kept. He has known companies to hold them for as long as a year, but has also known companies to keep them for only 90 days. Mr. Schwartz testified that there is no legal requirement for a company such as Alight Solutions to maintain a program log at all. Mr. Schwartz testified that he did not have enough knowledge of Alight Solutions’ terminology to state whether the program log indicated that Ms. Wagner’s election had been received. Thus, there is no evidence to contradict Ms. Olson’s credible testimony that the Alight Solutions program log did not indicate receipt of Ms. Wagner’s Investment Plan election. The preponderance of the evidence establishes that Ms. Wagner intended to make her second election on March 4, 2019, and to move her retirement account from the Pension Plan to the Investment Plan. The preponderance of the evidence also establishes that Ms. Wagner failed to complete her second election and that Alight Solutions, the Plan Choice Administrator for the Investment Plan, did not receive her election.1/ The evidence was insufficient to show that the SBA or any entity or person acting on its behalf or as its agent made any representation to Ms. Wagner that her second election had been received by the Plan Choice Administrator.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the State Board of Administration enter a final order dismissing Petitioner’s Florida Retirement System Investment Plan Petition for Hearing. DONE AND ENTERED this 8th day of January, 2020, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 8th day of January, 2020.
The Issue Whether Respondent violated section 112.313(6), Florida Statutes (2013),1/ by corruptly using his position as Sheriff of Flagler County to obtain a benefit for himself or others; or section 112.3148(8), by failing to report a gift valued in excess of $100.00; and, if so, what penalty should be imposed.
Findings Of Fact Respondent, James L. Manfre, served as Flagler County Sheriff from January 2001 through January 2005 (Respondent’s first term). Respondent was re-elected Sheriff in 2012 and began his second term on January 8, 2013. Respondent is a member of the Florida Bar. Between his first and second terms, Respondent was engaged in the private practice of law, with a primary focus on land use matters. While in private practice, Respondent represented two clients involved in cases with the Florida Ethics Commission. One client was a complainant who alleged misuse of position by a public official. Former Undersheriff, Frederick Staly, served as Flagler County Undersheriff with Respondent from January 2013 to April 17, 2015. Respondent chose Staly as Undersheriff, in part, because he had almost 40 years’ experience in law enforcement, and had most recently served as Undersheriff in Orange County, Florida. Undersheriff Staly advised Respondent on matters pertaining to policy and personnel decisions. In December 2012, just prior to Respondent’s second term, Respondent and Undersheriff Staly attended a one-day ethics training seminar for new law enforcement personnel. Linda Tannuzzi has been employed by the Flagler County Sheriff’s Office (FCSO) since 2001. Ms. Tannuzzi was Accounting Specialist in the FCSO Finance Department during both Respondent’s first and second terms. Ms. Tannuzzi’s responsibilities included processing the monthly FCSO credit card bill for payment. Ms. Tannuzzi’s general practice was to check the listed charges on the monthly FCSO credit card statement against the receipts submitted by employees. In the event no receipt was submitted, Ms. Tannuzzi would obtain missing receipts from either the employee or the vendor (e.g., hotel at which employee stayed). The practice of the Finance Department was to pay all credit card charges accompanied by a signed receipt from the employee. During all times pertinent hereto, the Sheriff’s office maintained a policy on credit card purchases. Pursuant to the policy, the Sheriff “will make only agency-related purchases and return receipts to Finance.” The policy did not define “agency-related purchases.” Further, the policy advised: Using an agency credit card during an ongoing investigation requires the following be adhered to: Food only in amount specified by per diem rate, must include overnight stay. No cash advances. No car rentals without approval of Sheriff. Travel voucher to be completed upon return. Receipts to be attached to travel voucher. (emphasis added). This portion of the policy did not clearly apply to use of the agency credit card outside of ongoing investigations. Respondent was issued an FCSO credit card for use during both his first and second terms. Ms. Tannuzzi never questioned any receipt submitted by Respondent until October 2013. She assumed all Respondent’s receipts were valid. However, no one instructed her to process Respondent’s credit card charges differently from other employees. Pursuant to section 112.061, at all times relevant hereto, state employees were allowed the following amounts for meals while traveling on business overnight: breakfast, $6; lunch, $11; and dinner, $19. These amounts are referred to as the per diem rates. Respondent was subject to section 112.061 at all times relevant hereto. Use of Agency Credit Card In May 2013, Respondent attended a National Law Enforcement conference in Washington, D.C. On May 14, 2013, Respondent dined at a restaurant called the “Madhatter” with his wife, as well as some sheriff’s deputies and their spouses. The total bill for the meal was $235.76, which Respondent paid for with the FCSO credit card. The tab included one alcoholic beverage. Upon returning from the conference, Respondent submitted the signed receipt to Finance for processing. Other than the meals for FCSO employees, the purchase did not serve a public purpose. Each of the meals for FCSO employees exceeded the per diem rate. In July 2013, Respondent attended the National Association of School Resource Officers conference in Orlando and stayed at the Rosen Shingle Creek hotel. On July 16, 2014, Respondent dined with his wife at an onsite restaurant. Respondent charged the total bill of $86.50, which included alcohol, to his room at the hotel. With the exception of Respondent’s meal, the purchase did not serve any public purpose. The cost of Respondent’s meal exceeded the per diem rate. Upon his return, Respondent submitted his receipt from the Rosen Shingle Creek hotel to Finance for processing. In August 2013, Respondent attended the Florida Sheriff’s Association conference in Marco Island, Florida, and stayed at a Marriott hotel. Respondent made the following room charges during his stay: On August 3, 2013, meals for himself, Undersheriff Staly, and their wives, including alcohol, totaling $158.50, and, separately, two alcoholic beverages totaling $12.46; on August 4, 2013, two meals and alcohol, totaling $62.21; and on August 7, 2013, two meals totaling $54.58. Upon his return, Respondent submitted the Marriott hotel receipt to Finance for processing. Other than Respondent’s and Undersheriff Staly’s meals, the purchases did not serve any public purpose. The amount for each of Respondent’s meals exceeded the per diem rate. Public Records Request/FCSO Audit In October 2013, the independent accounting firm of Carr, Riggs, and Igram began a routine financial audit of the FCSO for the fiscal year ending September 30, 2013. Also in October 2013, the FCSO received a public records request, or requests, seeking information from the FCSO pertaining to Respondent’s travel expenditures. In order to fully respond to the public records request(s), Ms. Tannuzzi had to obtain a detailed receipt of Respondent’s Madhatter restaurant charges from May 2013, and detailed receipts of Respondent’s restaurant and bar charges, which were reflected as room charges on the July and August 2013 hotel receipts. In mid-October 2013, Respondent had a meeting with Undersheriff Staly, the FCSO Director of Finance, and the FCSO attorney. The purpose of the meeting was to discuss charges Respondent made with the FCSO credit card. During that meeting, Respondent was advised to reimburse FCSO for all non-agency personnel meal charges and his meal charges exceeding the approved per diem rate. The Finance Director was instructed to calculate the amounts owed by Respondent. On October 31, 2013, Respondent reimbursed FCSO $344.03 for “personal meals” charged to the FCSO account. At hearing, Respondent maintained that his staff, mainly his Undersheriff and Finance Director, had the duty to inform and advise him of his obligations with respect to use of the FCSO credit card, and that they failed to perform that duty. Thus, Respondent pled ignorance as to the appropriate use of the agency credit card, and argued that when the issues were brought to his attention, he reimbursed the amounts owed and instituted new policies to provide clear guidance to all FCSO personnel. Respondent assumed no responsibility for, and was neither contrite nor apologetic for, his use of the agency credit card. Respondent assigned fault to the Director of Finance for not keeping accurate accounts and “keeping track of these amounts and [telling] me if I was over the per diem rate.” Respondent’s attitude was best reflected in his own words: I assumed and trusted that she knew what she was doing and would come to me when the money was owed. That was my assumption, that she was competent to do that. It was simple addition and subtraction that all she had to do was tell me what it was. I never refused to pay back any amounts when I was asked to. It is not my job to be the director of finance. My job was to be a sheriff and create a community that is safe, and I assumed that she was doing her job. Unfortunately, to my detriment, she was not. Respondent admitted that he knew the charges exceeded the per diem rate for meals. Apparently, he did not intend to pay for them unless requested. Use of Agency Vehicles In January 2013, Respondent drove an FCSO unmarked Ford Crown Victoria to Destin, Florida, to attend a Florida Sheriff’s Association conference. Respondent’s wife accompanied him to the conference. When the conference ended, Respondent drove the FCSO vehicle to visit his in-laws in Pensacola, Florida, then on to New Orleans for a personal trip. On May 3, 2013, Respondent drove an FCSO white Dodge Charger to Pigeon Forge, Tennessee, for a vacation with his wife. Respondent returned to Florida from Pigeon Forge on May 7, 2013. In August 2013, Respondent drove an FCSO white Dodge Charger to Virginia to view colleges with his son. During the trip, the vehicle suffered minor damage in a parking lot. Upon Respondent’s return from Virginia, Undersheriff Staly observed Respondent, along with the owner of a local body shop, in the parking lot inspecting the vehicle. Undersheriff Staly inquired whether there was anything wrong with the vehicle. In response to Undersheriff Staly’s inquiry, Respondent disclosed what had transpired. Respondent indicated that the accident did not occur in Flagler County, which Respondent knew to be “a problem.” Respondent consulted with Undersheriff Staly regarding the procedure to deal with the minor damage to the vehicle. Staly recommended Respondent write an internal report. With respect to damage to FCSO vehicles, the policy in effect at the time required officers to document damage on an incident report and report it to the Division Director through the chain of command. Respondent did not file a report pursuant to either the policy or Undersheriff Staly’s advice. The policy also required all officers to report vehicle damage to Fleet Maintenance. Respondent did report the damage to Fleet Maintenance. Respondent released a statement (in response to press inquiries about damage to the vehicle) explaining that he did not take his personal vehicle on this trip because it had a mechanical problem. Respondent testified at final hearing that his personal vehicle had a mechanical problem. At all times relevant hereto, FCSO maintained a policy on use and assignment of agency vehicles, Policy 41.3. Policy 41.3 stated, “Agency vehicles are assigned by Division Directors to individual member’s [sic] based on the criteria of their job performance.” There is no Division Director with respect to Respondent. Under Use of Vehicles, Policy 41.3 states, “The Sheriff allows personnel who have been assigned an Agency vehicle use of that vehicle while off duty with the following provisions[.]” The policy requires officers to obtain permission from their supervisor in order to take an FCSO vehicle out of the county. Respondent has no supervisor. Respondent’s position is that Policy 41.3 applied only to use of marked vehicles. On October 17, 2013, Respondent reimbursed FCSO $667 for use of the agency vehicle for personal travel to Pigeon Forge, Tennessee. Use of the agency vehicle for the trip to Virginia was publicly questioned in 2014. At that time, Respondent was advised by Undersheriff Staly to reimburse FCSO for the mileage. However, Respondent asked Staly to follow up with an attorney for the Florida Sheriff’s Association (which he did), who provided the same advice. Respondent reimbursed FCSO for use of the agency vehicle to Virginia on July 10, 2014, when he issued a check for $223.50. At final hearing, Respondent maintained that reimbursement was not necessary and was only made “in an abundance of caution on the advice of counsel.” Unreported Gift Respondent’s stay in Pigeon Forge, Tennessee, in May 2013, was courtesy of Undersheriff Staly. Staly owns three cabins in a private vacation resort in Pigeon Forge. The resort has a gated entrance, and just inside the entrance is a management office where guests check in. The resort includes amenities such as a playground, a miniature golf course, and a clubhouse. Undersheriff Staly pays commercial property insurance, and pays for utilities and cable television at a commercial rate. He also pays tangible personal property tax. Undersheriff Staly contracts with “Accommodations by Parkside,” a vacation rental management company, to manage the cabins. He pays a management fee to Accommodations by Parkside for each rental booking. Undersheriff Staly must reserve the cabins for his personal use through Accommodations by Parkside. He does not have direct access to any of the cabins. Undersheriff Staly reserved one of the cabins, “Suite Mountain View,” for Respondent to use from May 3 through May 7, 2013. The particular cabin usually rents for $430 per night during the applicable season. Undersheriff Staly offered Respondent use of the cabin for the cleaning fee of $75. The décor at Suite Mountain View does not include any family photographs or other items personal to the Stalys. Respondent paid Accomodations by Parkside $90.20 for use of the cabin during the specified dates, which included the cleaning fee and sales tax. Constitutional officers are required to file with the Florida Commission on Ethics a Form 9 Quarterly Gift Disclosure for quarters ending in March, June, September, and December of each year. Respondent did not report any gift on Form 9 for the quarter ending June 2013. Sometime in October 2013, Respondent participated in a conference call hosted by the Florida Sheriff’s Association covering a variety of ethics topics. Following the conference call, Respondent remarked to Undersheriff Staly, “I think I may have a problem with your cabin,” and stated something to the effect of “I think I was supposed to report it.” Staly advised Respondent to report it and informed Respondent the cabin rented for $430 per night. On a separate date, Respondent again discussed with Undersheriff Staly reporting use of the cabin as a gift. At that time, Respondent stated he was going to report it at a value of $44 per night. Undersheriff Staly advised against that method of valuing the cabin. Respondent’s response was something to the effect of “forty-four dollars sounds better than the $430, or a $1,200 gift.” On May 27, 2014, seven months after Respondent verbally questioned whether he should report use of the cabin as a gift, Respondent filed a Form 9 Quarterly Gift Disclosure on which he reported use of the cabin as a gift received from Undersheriff Staly May 3 through May 5, 2013, at a monetary value of $132.00, calculated based on a rate of $44 per night. On December 16, 2013, Carr, Riggs, and Ingram released its Auditor’s Report of FCSO for fiscal year ending October 2013. Of note, the report found that “certain expenditures charged to the Office’s credit card were not in accordance with allowable travel costs under Section 112.061.” In response to the public attention focused on Respondent’s use of the FCSO credit card and agency vehicles, Respondent instituted new FCSO policies in 2014. FCSO General Order 152, which took effect on January 10, 2014, prohibited non-authorized use of agency credit cards, and listed authorized and unauthorized charges. The policy defined “food and restaurant purchases” as unauthorized, as well as “alcohol, unless approved by a Senior Commander or designee for an operational necessity.” FCSO General Order 046, which took effect April 4, 2014, prohibited driving agency vehicles out of state while off- duty, unless on official business with prior approval. In May 2014, Respondent attended a Law Enforcement Officers’ Memorial service in Tallahassee, Florida, and stayed at the Four Points Sheraton hotel. During his stay, Respondent charged drinks at the bar and two breakfast buffets to his room. When Respondent checked out of the hotel on May 5, 2014, Respondent presented his personal credit card for the incidentals. The hotel clerk “swiped” Respondent’s credit card, which was approved for a charge of $50.39, the total of Respondent’s bar and restaurant charges to his room. Respondent received from the hotel clerk a receipt showing charges for his room and tax only. Due to a clerical error at the hotel, the FCSO credit card was billed for Respondent’s incidentals, as well as his lodging. The error was discovered later that same month when the FCSO credit card bill was processed. The $50.39 charge for incidentals was correctly transferred to Respondent’s personal credit card on May 27, 2014.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Commission enter a final order finding that Respondent, James L. Manfre, violated section 112.313(6), Florida Statutes, in his use of the agency credit card; and section 112.3148, Florida Statutes, by failing to report a gift; and imposing a total civil penalty of $6,200, and subjecting Respondent to public censure and reprimand. DONE AND ENTERED this 16th day of February, 2016, in Tallahassee, Leon County, Florida. S SUZANNE VAN WYK 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 16th day of February, 2016.
The Issue The issues in this case are whether Petitioner was provided incorrect, inaccurate, and erroneous information, and, if so, if she may transfer to the Florida Retirement System (FRS) Pension Plan (Pension Plan) by paying a “buy-in” amount of $2,418.55, consistent with the amount quoted to Petitioner in January 2020.
Findings Of Fact Ms. Evangelisto has been continuously employed by an FRS- participating employer since August 2012. As a new employee of an FRS-participating employer, Ms. Evangelisto had a choice to enroll in one of two FRS retirement plans: the Pension Plan or the Investment Plan. The Pension Plan is administered by the Florida Division of Retirement (Division of Retirement), which is housed within the Department of Management Services. The Pension Plan is a defined benefit plan; the benefit is formula-based. The formula used for calculating a pension plan benefit is based on total years of creditable service at the time of retirement, membership class, and average final compensation. See § 121.091, Fla. Stat. The Investment Plan is administered by SBA. The Investment Plan is a defined contribution plan; the benefit is based on gains and losses due to market performance. On January 22, 2013, Ms. Evangelisto enrolled in the Investment Plan, with an effective date of February 1, 2013. This choice is considered Ms. Evangelisto’s initial election. Ms. Evangelisto is still enrolled in the Investment Plan. After making an initial election, an employee may make a “second election” if still employed with an FRS-participating employer, earning salary and service credit. Ms. Evangelisto may utilize a second election to move into the Pension Plan, but must pay a “buy-in” amount to do so. This sum is derived from an actuarial calculation conducted by the Division of Retirement. To effectuate a second election, Ms. Evangelisto must complete and submit a 2nd Election Retirement Plan Enrollment Form (2nd Election Form) to the Plan Choice Administrator. The 2nd Election Form may be obtained by calling the MyFRS Financial Guidance Line or through the MyFRS.com website. When completed, the form may be submitted by facsimile, mail, or by electronic submission through the MyFRS.com website. Respondent is required to provide FRS Investment Plan participants with educational services, including: disseminating educational materials; providing retirement planning education; explaining the Pension Plan and the Investment Plan; and offering financial planning guidance on matters such as investment diversification, investment risks, investment costs, and asset allocation. See § 121.4501(8)(b), Fla. Stat. Respondent provides these educational services through Ernst & Young (EY), a contracted third-party administrator. EY financial planners provide information to FRS employees via the MyFRS Financial Guidance Line. On multiple occasions over the years, going back to as early as July 2018, Ms. Evangelisto spoke to EY financial planners via the MyFRS Financial Guidance Line to request a calculation of her buy-in amount.2 In July 2018, Ms. Evangelisto contacted the MyFRS Guidance Line to request her buy-in amount. In August 2018, she received a comparison estimate. The comparison estimate provided the estimated buy-in amount, the current value of her Investment Plan, and the amount of out-of-pocket funds 2 Ms. Evangelisto testified that she made requests to determine her buy-in amount even prior to 2018. Ms. Evangelisto would have to pay to buy into the Pension Plan. This out-of- pocket sum is the result of the difference between the buy-in amount determined by the Division of Retirement and her Investment Plan account balance. The amounts contained in the comparison estimate are only valid for the calendar month in which they are issued. From July 2018, through March 2019, there were numerous communications between Petitioner and EY Financial Planners by telephone conversation, email, and through voice messages. Ms. Evangelisto made requests for buy-in amounts and received updated comparison estimates in November 2018 and March 2019. On January 13, 2020, Petitioner requested a calculation of her buy-in amount. On January 22, 2020, she received a comparison estimate which set forth an out-of-pocket cost of $2,418.55 to transfer to the Pension Plan. The estimate indicated that it was valid until January 31, 2020. On February 14, 2020, Petitioner requested another calculation of her buy-in amount. On March 12, 2020, she received a comparison estimate with an out-of-pocket cost of $7,198.64. The estimate indicated that it was valid until March 31, 2020. Ms. Evangelisto testified that she did not transfer to the Pension Plan, after being provided comparison estimates, because she did not have the funds to pay for the associated out-of-pocket cost. On June 24, 2020, Petitioner called the MyFRS Guidance Line to request yet another comparison estimate. During this conversation, Petitioner inquired about potential changes to the buy-in amount associated with becoming “vested.” The conversation was recorded and later transcribed by a court reporter: Ms. Evangelisto: Does the cost to buy into the pension change significantly once you would be vested at the eight years? EY financial planner: I actually don’t know if it would or not. Ms. Evangelisto: Okay. EY financial planner: I can try to find out. I don’t think it’s necessarily based on vesting, but more the years of service. Ms. Evangelisto: Okay. During the June 24, 2020, call, the EY financial planner told Ms. Evangelisto that she could expect the comparison estimate in three weeks. Ms. Evangelisto agreed to July 16, 2020, for a follow-up call. On July 9, 2020, Ms. Evangelisto received an email from EY, but the email did not contain the requested comparison report. On July 15, 2020, Ms. Evangelisto called the MyFRS Guidance Line to follow up on her June 24 request and to ask about the July 9 email. The EY financial planner calculated the buy-in costs for her over the phone. He provided a verbal, estimated out-of-pocket cost of $17,657.00 to buy into the Pension Plan. Surprised by this number, which was over $10,000 higher than the out-of-pocket estimate provided in March 2020, Ms. Evangelisto asked why the cost increased. This telephone call was also recorded and later transcribed by a court reporter. Relevant parts of the conversation are as follows: Ms. Evangelisto: Does it normally jump up heftily at eight years of service -- EY financial planner: No. No. Ms. Evangelisto: -- or like in a yearly increment? EY financial planner: No. Ms. Evangelisto: It doesn’t? EY financial planner: It -- okay, you have been watching in and monitoring it very closely, so you had in December, January, March, and now we are a July figure. If all of those other figures were consistent, while the increase due to the change in the underlying interest rate might have a negative impact, it shouldn’t be so much that it’s going to bump up the cost by another $10,000. The EY financial planner promised to look into the numbers to ensure they were not miscalculated. On the same day, the EY financial planner called Ms. Evangelisto back and left a voicemail. He stated that the out-of-pocket cost he provided on the earlier phone call was correct and that the number had substantially increased because Ms. Evangelisto hit the eight-year vesting mark.3 The previous calculations were based on having an unvested account balance. Ms. Evangelisto returned the EY financial planner’s call and he confirmed the information he provided in the voicemail. Ms. Evangelisto asked EY financial planners, on two occasions, if her buy-in amount (and resulting out-of-pocket costs) would increase upon becoming vested. On the first occasion, during the June 24 call, the EY financial planner told her that he “did not know” and would endeavor to provide her with an answer by July 16. Unfortunately for Ms. Evangelisto, the final date to make the switch to the Pension Plan before the substantial increase4 was June 30. Ms. Evangelisto reached out to the MyFRS Guidance Line on July 15, prior to her scheduled July 16 call. On this occasion, the EY financial planner provided incorrect information when he told her that buy-in amounts did not 3 In her Proposed Recommended Order, Ms. Evangelisto asserted that she became “vested” on July 1, 2020, after completing eight years of creditable service with FRS-participating employers. 4 It is important to note that the amount to buy into the Pension Plan increased every time Ms. Evangelisto requested a calculation, albeit not the sizeable jump that occurred when she became vested. substantially increase upon vesting. This proved to be inconsequential, however, as the increase to Ms. Evangelisto’s buy-in amount had occurred as of July 1, 2020, prior to the EY planner providing the incorrect information. An EY financial planner provided inaccurate information to Ms. Evangelisto when he indicated that no substantial jump would occur upon vesting. Nevertheless, Ms. Evangelisto is required to pay a buy-in amount as calculated by the Division of Retirement when she chooses to move forward with making the second election. Petitioner did not prove that she should be entitled to pay the buy-in amount calculated in January 2020. That amount was valid until January 31, 2020, and the document provided to Ms. Evangelisto clearly notified her of such. Ms. Evangelisto still has a one-time second election to move into the Pension Plan.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the State Board of Administration enter a final order dismissing Petitioner’s Florida Retirement System Investment Plan Petition for Hearing. DONE AND ENTERED this 21st day of January, 2021, in Tallahassee, Leon County, Florida. S JODI-ANN V. LIVINGSTONE Administrative Law Judge 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 www.doah.state.fl.us COPIES FURNISHED: Elisha Marie Evangelisto 4604 20th Avenue West Bradenton, Florida 34209 Deborah Stephens Minnis, Esquire Ausley McMullen, P.A. Post Office Box 391 Tallahassee, Florida 32302 Ash Williams, Executive Director & Chief Investment Officer State Board of Administration 1801 Hermitage Boulevard, Suite 100 Post Office Box 13300 Tallahassee, Florida 32317-3300
The Issue Whether Petitioner, Kay McGinn, willfully violated Subsection 106.07(5), Florida Statutes (2001), when she certified the correctness of a campaign treasurer's report that was incorrect, false, or incomplete because it failed to disclose an in-kind contribution by Frank Furman for the use of telephones used by Petitioner and her campaign volunteers in offices that Mr. Furman owned.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing, the following findings of fact are made: Petitioner is the Mayor of Pompano Beach, Florida. She ran unsuccessfully for Pompano Beach City Commission in 1996. Her campaigns for the same office in 1998, 2000, and 2002 were successful. The alleged offense took place during the 2002 election campaign. Petitioner is an intelligent, conscientious public servant. She is familiar with the Florida election law and is sensitive to her obligation to follow the law and diligent in her attempt to do so. During the 2002 campaign, Frank Furman, a long-time Pompano Beach business man who enjoys an excellent reputation, offered the use of his business offices to Petitioner for campaign activities. Petitioner chose to use Furman's office on six to eight occasions to make campaign-related local telephone calls. Typically, Petitioner and five or six volunteers would spend about one hour in the early evening calling Pompano Beach voters encouraging them to vote for Petitioner. Mindful of the election law requiring the reporting of "in-kind" contributions, Petitioner asked Mr. Furman the value of the use of his telephones for reporting purposes. Furman advised Petitioner that the use of his telephones had "no value." In reporting "in-kind" contributions, Petitioner's practice was to ask the contributor to provide an invoice reflecting the "fair market value" of the "in-kind" contribution. Armed with the invoice, she would then report the "in-kind" contribution. "Fair market value" is an economic concept used most frequently in reported Florida cases when referring to the value of real property taken in condemnation actions or in determining restitution in criminal cases. Numerous definitions are found. Typically, the definitions involve "a willing buyer and a willing seller, fully informed as to the value of the object of the transaction, neither being under any compulsion to buy or sell." Respondent's Statement of Findings, which was analyzed by Petitioner's expert witness, offers an amortized cost to Mr. Furman for use by Petitioner and her volunteers of the telephones. This amortized cost is apparently advanced as evidence of "fair market value" or "attributable monetary value." Mr. Furman pays a fixed-rate of slightly less than $1,500.00 per month for the use of 32 to 33 telephone lines. This means that each line costs approximately $46.87 per month. Assuming 30 days per month, the daily cost per line is $1.56. Assuming 24-hour days, the hourly cost per line is $0.065. Further assuming that six volunteers used one telephone for one hour on eight different days, the result is 48 hours of line use. The resulting amortized use cost, given the known use by Petitioner and her campaign volunteers, is $3.12. Amortized use cost is not fair market value. Neither an "attributable monetary value" nor a "fair market value" of Petitioner's use of Mr. Furman's telephones was established. To the contrary, it was established that there was no "market" for access to six to eight telephones for one hour, one night per week. While it is assumed that Petitioner would benefit from telephone calls made by her supporters, whether made from their individual homes or from some group setting, the evidence failed to established that Petitioner's use of Mr. Furman's telephones had any "attributable monetary value" or "fair market value." Given that the use of the telephones by Petitioner was during non-working hours when the telephones would normally be idle, it is not surprising that Mr. Furman advised Petitioner that there was no cost associated with the use of his telephones. His monthly telephone bill would be the same whether Petitioner used his telephones or not. Nor is Petitioner to be faulted for relying on the contributor's assessment of the value of the "in-kind" contribution of the use of the telephones. The real value to Petitioner's campaign was the use of Mr. Furman's office as a meeting place. As a practical matter, each volunteer could have taken a list of the telephone numbers of Pompano Beach voters to their respective homes and made the telephone calls from their homes. This was not a professional "phone bank," sometimes used in political campaigns where trained callers use scripted messages designed to elicit voter preferences and where the candidates receives "feed-back" on salient issues. A "fair market value" can be easily established for such services as they are common in the market place. The evidence suggests that campaign volunteers making telephone calls to registered voters from their homes or from someone's office is a common practice in political campaigns in Florida. It is also suggested that this common practice is not reported as a campaign contribution.
Recommendation Based upon the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that the Florida Elections Commission enter a final order finding that Petitioner, Kay McGinn, did not violate Subsection 106.07(5), Florida Statutes, as alleged, and dismissing the Order of Probable Cause. DONE AND ENTERED this 13th day of January, 2004, in Tallahassee, Leon County, Florida. S JEFF B. CLARK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 13th day of January, 2004. COPIES FURNISHED: Eric M. Lipman, Esquire Florida Elections Commission Collins Building, Suite 224 107 West Gaines Street Tallahassee, Florida 32399-1050 Stuart R. Michelson, Esquire Law Office of Stuart R. Michelson 200 Southeast 13th Street Fort Lauderdale, Florida 33316 Barbara M. Linthicum, Executive Director Florida Elections Commission The Collins Building, Suite 224 Tallahassee, Florida 32399-1050 Patsy Rushing, Clerk Florida Elections Commission The Collins Building, Suite 224 Tallahassee, Florida 32399-1050
Findings Of Fact Davis was general manager of the Florida Food Industry Credit Union from May 31, 1980 to May 30, 1985. He was a member of the Board of Directors of the Credit Union from 1980 to May 31, 1985. Davis resigned as General Manager and Director of the Credit Union effective May 31, 1985. In his letter of resignation, Davis acknowledged that he had falsely reported delinquent loans in reports to the Board of Directors for the previous eight years (including three years before he became General Manager). These reports understated the status and amount of delinquent loans. A review of loan records of the Credit Union by the Department of Banking and Finance in June, 1985, confirmed that delinquency reports to the Board of Directors and the Department had been understated over $300,000 for at least six months of 1984. Other source documents of actual loan delinquency and reports thereof could not be located by the Credit Union. The amount of loans past due two months and over were significantly understated as follows: DATE REPORTED AMOUNT REPORTED ACTUAL AMOUNT AMOUNT UNDERSTATED 12/84 $90,117.02 $415,054.48 $324,937.46 9/84 $107,792.25 $446,224.48 $348,400.50 6/30/84 $86,378.35 $454,206.15 $367,827.80 5/31/84 $85,003.54 $492,721.49 $407,717.95 4/30/84 $80,538.85 $477,767.97 $397,299.12 The June 30, 1984, Report of Condition of the Credit Union to the Department understated loans delinquent over sixty days by $367,827. Loans past due two months and over as of April 30, 1985, Report of Examination, totaled $520,600. Of this amount $348,700 were classified by the examiner as loss and $57,400 doubtful of collection. The earned net worth of the Credit Union, as of the date of the examination, was 3.8 percent of total assets. Earned net worth, adjusted for loans classified loss and 50.0 percent of loans classified doubtful of collection, was 1.4 percent of total assets. Essentially, the loans classified loss and doubtful of collection are those that were not reported by Davis. By his response to Requests for Admissions and by his letter of resignation, Davis has acknowledged that he knowingly reported the false delinquent loan information. The understatement of delinquent loans as it relates to an inflation of earned net worth could seriously prejudice the interests of the depositors, members or shareholders of the Credit Union in that inflation of earned net worth impacts on future lending policies and declaration of dividends. The Complaint seeking formal removal of Respondent as a director and officer of Florida Food Industry Credit Union was dated and served on August 29, 1985. At the time the Department of Banking and Finance issued and served the Complaint instituting these proceedings, Respondent was not an officer, director, committee member or employee of Florida Food Industry Credit Union or of any other financial institution in the State of Florida, having resigned on May 31, 1985.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Banking and Finance enter a Final Order finding Respondent, Thomas E. Davis, guilty of violating Sections 655.037(1)(a) and (g), Florida Statutes, and prohibiting his participation in the affairs of any financial institution for a period of three years from May 31, 1985. DONE and ENTERED this 19th day of February, 1986, in Tallahassee, Florida. DIANE K. KIESLING 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 February, 1986. COPIES FURNISHED: Rodney C. Wade, Esquire Assistant General Counsel Office of the Comptroller The Capitol, Suite 1302 Tallahassee, Florida 32301 Thomas E. Davis 1775 N. Andrews Avenue, 204W Fort Lauderdale, Florida 33311 Honorable Gerald Lewis Comptroller The Capitol Tallahassee, Florida 32301 Charles Stutts General Counsel Office of the Comptroller Plaza Level, The Capitol Tallahassee, Florida 32301 APPENDIX The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the proposed. findings of fact submitted by the parties to this case. Rulings on Proposed Findings of Fact of Petitioner Adopted in substance in Finding of Fact 3. Adopted in substance in Findings of Fact 2 and 3. Adopted in substance in Finding of Fact 4. Adopted in substance in Finding of Fact 5. Adopted in substance in Finding of Fact 6. Adopted in substance in Finding of Fact 7. Rulings on Proposed Findings of Fact of Respondent Adopted in substance in Finding of Fact 1. Adopted in substance in Finding of Fact 1. Adopted in substance in Finding of Fact 2. Adopted in substance in Finding of Fact 10. Adopted in substance in Finding of Fact 10. Adopted in substance in Finding of Fact 3. Adopted in substance in Finding of Fact 3.
Findings Of Fact Respondent, William "Bill" Harrison (Harrison) served as a member of the City of Laurel Hill City Council (Council) from July 1989 to April 1992. The population of Laurel Hill (City) is approximately 600 people. At the present time, Harrison is an Okaloosa County Commissioner. Harrison's take-home pay as a member of the Council was less than $25 monthly. At the July 6, 1989, meeting of the Council--Harrison's first Council meeting as an elected member of the Council--Harrison moved, and the Council voted, that the City reimburse Council members who used their personal vehicles for City business at the rate of 22.5 cents per mile. The Council had previously authorized the reimbursement for mileage for Council members using their personal vehicles. There was no requirement to receive advance permission from the Council before a member took a trip on official business. There was no written policy for handling mileage reimbursements. In practice, the party seeking reimbursement submitted a written request, which would be circulated at the next Council meeting for approval. In late 1989 or early 1990, Harrison became Chairman of the Council. He was also the City's representative to the Okaloosa County League of Cities (League of Cities) and was the President of the Laurel Hill Volunteer Fire Department which was under the supervision of the Council. As a result of his duties as a member of the Council, representative to the League of Cities, and president of the volunteer fire department, Harrison was required to travel. In September and October, 1989, the Council engaged in a series of discussions concerning reestablishing a police department. This was a controversial issue and was the source of considerable debate and confrontation in the community. Harrison submitted an expense reimbursement request for a trip on February 28, 1990, to the Florida Department of Law Enforcement office in Pensacola, Florida. His reimbursement request was for $35.32, which represented 157 miles at 22.5 cents per mile. The council approved the request for reimbursement, and Harrison received a check for $35.32. An ethics complaint was filed against Harrison, alleging violations of Section 112.313(6), Florida Statutes, in connection with his travel reimbursement from the City. The Florida Commission on Ethics sent Investigator Larry Hill to interview Harrison concerning the alleged violations. When Investigator Hill questioned Harrison about the trip to FDLE in Pensacola, Harrison indicated that he had gone to the FDLE office and talked to someone there. Hill: You just went down and talked to someone at FDLE, there at the office, the big office down there? Harrison: Yes. Yes, exactly right, we talked. When Investigator Hill asked Harrison why he went to the FDLE office, Harrison stated that he had received anonymous, threatening telephone calls relating to a complaint that he had filed against his predecessor on the Okaloosa County Commission, Ferrin Campbell. Investigator Hill made further investigations and learned that Harrison never went to the FDLE office and that Harrison filed his complaint against Mr. Ferrin almost a year after Harrison's alleged trip to the FDLE office. Investigator Hill issued his Report of Investigation on August 9, 1993, including these findings. Harrison was sent a copy of the Report of Investigation. By letter dated August 17, 1993, Harrison notified the Commission on Ethics that he had intended to go to the FDLE office but changed his mind and went to the University of West Florida Resource Library. However, he put on his expense report that the trip was to FDLE because he wanted people in the community to know that he had been in contact with the FDLE. Harrison did not clearly explain in his letter what he was doing at the library. At the final hearing, Harrison stated that he went to the library to research the reestablishing of the police department in Laurel Hill, and that he made a telephone call to FDLE while at the library. He stated that he had originally intended to go to FDLE because he had received threats concerning the police department issue. Having observed the demeanor of Harrison and having judged Harrison's credibility, I find that his testimony concerning doing research at the University of West Florida Resource Library not to be credible. On May 2, 1991, Harrison submitted an expense reimbursement request to the City, which included a request for mileage of 32 miles for a trip to the Supervisor of Elections office in Crestview on April 19, 1991, and for mileage of 31 miles for a trip to the Supervisor of Elections office in Crestview on April 25, 1991. The Council approved his request and reimbursed him for the mileage at 20 cents per mile. On June 6, 1991, Harrison submitted a voucher for reimbursement of traveling expenses to the City, which included a request for mileage reimbursement of 31 miles for a trip to the Supervisor of Elections office on May 3, 1991. The Council approved his request and reimbursed him for the mileage at 20 cents per mile. His total reimbursement for the three trips to the Supervisor of Elections office was $18.80. On April 19, 1991 Harrison went to the Supervisor of Elections office and filed a Statement of Financial Interests 1990, an acknowledgement that he received a notice of the preelection test of the voting equipment, a receipt for a copy of Chapter 106, and an Appointment of Campaign Treasurer. On April 25, 1991, Harrison went to the Supervisor of Elections office and filed a Statement of Candidate. On May 3, 1991, Harrison went to the Supervisor of Elections office and filed a Campaign Treasurer's Report. The documents which he filed on April 19, April 25, and May 3 related to his campaign for reelection to the Council. When Investigator Hill interviewed Harrison about the trips to the Supervisor of Elections Office, Harrison told him that he did not have any documentation of the purpose of the trips. When asked about the filing of the campaign documents, Harrison stated that the reason for the trips was not entirely related to the filing of the documents. He indicated that he may have discussed the Sunshine Law with someone at the Supervisor of Elections office. Harrison did acknowledge that he filed the campaign documents at the Supervisor of Elections office on the dates at issue but he can not specifically recall what else he did there. He speculates that he may have discussed the Data Vote machine and the uniform election day issue with someone at the Supervisor of Elections office on those dates but he is not sure. He also thinks that he may have visited the Director of the County Emergency Medical Service on May 3, in response to a request by the Council made at the Council meeting on May 2, but he had no documentation of such a visit. Having judged the credibility of Harrison, I find that his trips to Crestview on April 19, 25 and May 3, 1991 were for the sole purpose of filing his campaign documents.
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 William "Bill" Harrison violated Section 112.313(6), Florida Statutes, imposing a civil penalty of $1,000 per allegation for a total of $2,000; requiring restitution of $52.12, and issuing a public censure and reprimand. DONE AND ENTERED this 7th day of December, 1994, in Tallahassee, Leon County, Florida. SUSAN B. KIRKLAND 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 7th day of December, 1994. APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-1787EC To comply with the requirements of Section 120.59(2), Florida Statutes (1993), the following rulings are made on the parties' proposed findings of fact: Advocate's Proposed Findings of Fact. 1. Paragraphs 1-3: Accepted. Findings of Fact Based on Evidence At Hearing. Paragraphs 1-4: Accepted in substance. Paragraph 5: The last sentence is rejected as constituting argument. The remainder is accepted in substance. Paragraph 6: Accepted in substance that Harrison's explanation of his trip to Pensacola is not credible. The remainder of the paragraph is rejected as constituting argument. Paragraphs 7-8: Accepted in substance. Paragraph 9: Accepted in substance to the extent that Harrison maintained that he could have been in Crestview on City business but he does not remember exactly what it was and speculates on what it may have been. The remainder of the paragraph is rejected as constituting argument. Paragraph 10: Rejected as constituting argument. Paragraph 11: Accepted in substance. Respondent's Proposed Findings of Fact Stipulated Facts 1. Paragraphs 1-3: Accepted. Facts Based on the Record Paragraph 1: Accepted in substance. Paragraphs 2-4: Rejected as subordinate to the facts actually found. Paragraphs 5-8: Accepted in substance. Paragraphs 9-14: Rejected as subordinate to the facts actually found. Paragraph 15: The first sentence is accepted in substance as to 1989 but not as to early 1990 based on the minutes of the Council meetings. The second sentence is accepted in substance. Paragraph 16: Accepted in substance that Harrison received threats concerning the police department issue but rejected to the extent that these threats were received in early 1990. The minutes of the meetings show that the police issue was discussed in the fall of 1989. Paragraph 17: Having judged the credibility of Harrison, the paragraph is rejected . Paragraph 18: Accepted in substance to the extent that Harrison told Mr. Dunn that he had received threats and that he had done some research at the library on police issues, but rejected to the extent that it implies that Dunn's testimony confirms that Harrison went to Pensacola to the library on February 28, 1990, to do research and that Harrison was going to the FDLE office because he had recently received threats. Paragraph 19: The first sentence is accepted in substance. The remainder is rejected as subordinate to the facts actually found. Paragraph 20: Rejected as constituting argument. Paragraph 21: The portion of the first sentence that Harrison did not go to FDLE is accepted in substance. The portion of the first sentence that Harrison did research is rejected as not credible. The remainder of the paragraph is rejected as constituting a conclusion of law. Paragraph 22: Rejected as constituting argument. Paragraph 23: The first and second sentences are accepted in substance. The remainder of the paragraph is rejected as constituting argument. Paragraphs 24-26: Rejected as subordinate to the facts actually found. Paragraphs 27-29: Rejected as constituting argument. COPIES FURNISHED: Carrie Stillman Complaint Coordinator Commission on Ethics Post Office Box 15709 Tallahassee, Florida 32317-5709 Marty E. Moore, Esquire Advocate for the Commission on Ethics The Capitol, PL-01 Tallahassee, Florida 32399-1050 John C. Cooper, Esquire COOPER, COPPINS & MONROE, P.A. Post Office Drawer 14447 Tallahassee, Florida 32317-4447 Bonnie Williams Executive Director Florida Commission On Ethics Post Office Drawer 15709 Tallahassee, Florida 32317-5709 Phil Claypool, Esquire General Counsel Ethics Commission 2822 Remington Green Circle, Suite 101 Post Office Drawer 15709 Tallahassee, Florida 32317-5709
