STATE OF FLORIDA
COMMISSION ON ETHICS
In re GRADY ALBRITTON, )
Respondent. ) Complaint No. 87-53
RECOMMENDED PUBLIC REPORT OF HEARING OFFICER
This matter was initiated by the filing of a complaint by the Complainant, Margaret Louise Gandy, who alleged that the Respondent, Grady Albritton, violated Section 112.313(6), Florida Statutes. Following a preliminary investigation, the Commission on Ethics found probable cause and ordered a public hearing on the following two issues: (1) whether the Respondent, as a member of the Escambia County Board of County Commissioners, violated Section 112.313(6), Florida Statutes, by exacting retribution against Louise Gandy by having her employment terminated at University Hospital because of her failure to support him politically; and (2) whether the Respondent violated Section 112.313(6), Florida Statutes, by exacting retribution against Louise Gandy by taking action to see that she would no longer be used as a part-time Escambia County emergency medical technician because of her failure to support him politically.
A public hearing was held on Monday, April 3, 1989, in Pensacola, Florida, before the undersigned member of the Commission on Ethics, who served as Hearing Officer for the Commission. Craig B. Willis, Assistant Attorney General, appeared as Advocate for the Commission; the Respondent, Grady Albritton, represented himself during the proceedings.
At the public hearing the Advocate called the following witnesses: Margaret Louise Gandy, Charles William Bates, and Robert Bruce Yelverton; pursuant to an agreement with the Respondent the depositions of Rodney Lee Kendig and August V. Ellis were received into evidence in lieu of their live testimony. The Respondent testified in his own behalf. Various exhibits presented by the parties were received in evidence.
The Advocate has submitted proposed findings of fact and conclusions of law which have been considered by the Hearing Officer. Specific rulings on the proposed findings of fact are set forth in the appendix to this order. References to the transcript of the hearing are denoted by the letter "T", followed by the page number; references to the depositions of Ellis and Kendig are made by the names "Ellis" and "Kendig," respectively, followed by the page number; references to the Advocate's and the Respondent's exhibits are made as "AE" and "RE" respectively, followed by the exhibit number and page number, if applicable.
From the evidence presented at the hearing, the undersigned Hearing Officer finds as follows:
1. The Respondent, Grady Albritton, served as a County Commissioner for Escambia County from 1969 through 1976 and then from November 15, 1983, to November 22, 1988; he served in that position at all times material to this complaint. T 106-07.
2. Louise Gandy was employed with the Escambia County Emergency Medical Services Department from 1978 to 1983. T 20; AE 5. In 1980 she was promoted to the position of Emergency Medical Services Officer, a director-level position with the County. T 20; AE 5.
3. In 1983, Gandy resigned her position to run for election to the Escambia County Board of County Commissioners. T 23; AE 5. Gandy and the Respondent were among the candidates for the District Five seat on the Commission. T 24.
4. The first primary eliminated Gandy and several other candidates. T 24. However, the Respondent and one other candidate were included in a runoff election. T 24, 32.
5. Prior to the runoff election, the Respondent visited Gandy at her home seeking her political support in the upcoming election. T 28-30, 51, 108.
6. The Respondent offered to get Gandy's job back for her as Director of Emergency Medical Services if she would support him in the runoff election. T 30, 51-53. When Gandy refused to agree to support the Respondent in the election, the Respondent told her that he would be elected and would see that she never got another County job. T 31, 52-53.
7. The Respondent denied he ever made this threat. T 109-10. The Respondent testified that Gandy told him that she wanted her job back. In response, he testified, he made no promises to Gandy about employment but rather explained to her that Rodney Kendig, the County Administrator, already had hired someone for her previous position as Director of Emergency Medical Services and that she would have to talk to Kendig about it. T 108-09. However, in light of the Respondent's subsequent behavior and statements, as testified to by a number of County employees, Gandy's testimony is more credible than the Respondent's with regard to what transpired during their meeting.
8. Gandy supported the Respondent's opponent in the runoff election. T 31-32.
9. The Respondent won the election for the District Five seat on the Board of County Commissioners. T 106. On November 1, 1983, before the Respondent took office, Gandy obtained a position as Community Ombudsman at University Hospital. T 32-33; AE 3.
10. University Hospital was owned by the County but was managed by a private consulting firm in 1983. T 33-34; RE (Audit of University Hospital by County Comptroller). Gandy was employed at the Hospital by the management firm, not by the County. T 33-34, 65.
11. The Respondent took office as a County Commissioner on November 15, 1983. T 106. Sometime thereafter he called the County Administrator, Rodney Kendig, into his office and inquired about Gandy's employment status. Kendig, 13.
12. Kendig told the Respondent that Gandy did not work for the County but was employed by an outside management firm that operated University Hospital. Kendig, 14. The Respondent was distressed and unhappy about this information and told Kendig that he did not think Ms. Gandy should be an employee of Escambia County, though he did not give a reason why. Kendig, 14. Kendig reiterated that Gandy was not an employee of the County. Kendig, 14.
13. Kendig subsequently discussed Gandy's employment with the Respondent after the Respondent learned that Gandy was working at Century Hospital, another County-owned facility managed by the private firm. Kendig again informed the Respondent that Gandy did not work for the County, but was functioning through the management firm. Kendig, 18.
14. During these discussions with Kendig the Respondent gave no reason why Gandy should not be working at the hospital, and Kendig was not aware of anything which would make her unsuitable for employment at the hospital. Kendig, 13-18.
15. In Escambia County, the County Administrator was responsible for County employment matters, being solely responsible for hiring, firing, and disciplining County personnel. Kendig, 19-20.
16. Individual members of the County Commission did not have the authority to hire or fire County employees; nor did they have the authority to order the County Administrator to discharge a County employee. Kendig, 20-21.
17. Beginning in September of 1984, Gandy was employed by Escambia County as a part-time emergency medical technician. T 25, 88; AE 4.
18. As a part-time emergency medical technician (EMT), Gandy was called for work on a rotation basis with other relief personnel. T 27-28, 88. Her duties included driving the ambulance, maintaining equipment, and assisting the paramedics in patient care. T 27, 88.
19. In November of 1984, Kendig resigned his position as County Administrator and the Assistant County Administrator, Charles Bates, became the Acting County Administrator. T 63; Kendig, 13.
20. During the period of time Bates served as Acting County Administrator, he had a conversation with the Respondent regarding Gandy's part-time EMT employment with the County. T 65. The Respondent had discovered that Gandy was working part-time for the County and expressed his displeasure over this fact with Bates. T 67. The Respondent told Bates that he did not want Gandy working for the County at all. T 67, 74, 77. Bates testified that from the Respondent's tone of voice it was quite clear that he was serious, but that he gave Bates no reason for his statement. T 67, 77. This conversation took place in January of 1985. T 67-68, 91-93.
21. Shortly after his conversation with the Respondent, Bates met with Bruce Yelverton, the Director of Emergency Medical Services for Escambia County, to talk with him about not having Gandy on call anymore. T 67-68.
22. Bates testified that he probably would not have stopped Gandy's part-time EMT relief work if he had not had the discussion with the Respondent, and that he knew nothing of Gandy's job performance or personal life which would make her unsuitable for such employment. T 69-70, 79-80.
23. Bates directed Yelverton not to contact Gandy for EMT relief work anymore. T 36, 67-68, 92-93. As a result of this order, Yelverton wrote the following note in the EMS shift supervisor's log book on January 25, 1985: "Until further notice please DO NOT schedule Louise Gandy for any relief work. B. Y. " [Emphasis in the original.] T 89-92; AE 1. Gandy was not called for relief EMT work after January of 1985. T 36, 93-94.
24. Yelverton would not have written the order in the log book if Acting County Administrator Bates had not instructed him not to work Gandy anymore. T 93. Yelverton was not aware of any reason why Gandy was not in all respects suitable to continue working as a part-time relief EMT. T 94-95.
25. In April of 1985 the County employed August V. Ellis as the new County Administrator and Bates resumed his position as Assistant County Administrator. T 63; Ellis, 5. Around this time the County decided to assume the operational responsibilities for University Hospital. Ellis, 5-6.
26. The County was seeking to cut operational expenses for the hospital as a result of the hospital's deep financial problems, and one of the items under review was the elimination of non-essential personnel at the hospital. T 70-71, 81-82; Ellis 5-6.
27. Bates testified that he was aware at that time that Albritton did not want Gandy working for the County and that one of the factors in eliminating personnel was how County Commissioners felt about key people at the hospital. T 71-72, 74, 77, 84.
28. Bates and others met with each of the County Commissioners individually and discussed a number of non-essential positions that were being considered for elimination. T 81-82. At the time Bates discussed the situation with the Respondent, the position held by Gandy at the hospital was one of the non-essential positions under consideration. T 81-82. One of the factors that went into Bates' decision to recommend eliminating Gandy's position was how the Respondent felt about her, but, given the magnitude of the financial problems at the hospital, Gandy's position as Community Ombudsman was not considered as essential as some of the others in the direct operation of the hospital. T 71-72.
29. Six or seven key staff members, including Bates and Ellis, met to go over the final recommendations. T 83. They reviewed a proposed list which included Gandy's position and discussed each of the names and positions on the list, individually. T 83. Gandy was terminated from her position at University Hospital on May 17, 1985 by Ellis. T 37; AE 2, AE 3. Seven or eight other hospital employees also were terminated at that time. T 71.
30. Ellis decided to terminate Gandy based primarily upon Bates' recommendation to him. T 71-72; Ellis, 14-16. While Ellis said that the hospital's economic condition was the reason for the personnel cutbacks, he admitted that he had no particular experience with administering a county hospital. Ellis, 13.
31. The County had an informal policy to make an effort to relocate a County employee who was being terminated to another County position for which that person was qualified. Ellis, 17. No such effort was made for Gandy at the time she was terminated from University Hospital. T 39-40.
32. The Respondent attempted to and did use his official position as a County Commissioner in his efforts to have Louise Gandy terminated from her employment with Escambia County as a part-time EMT and at University Hospital, through his conversations with County employees described above.
33. In addition, the Respondent was using his official position when called upon by Bates to review the list of non-essential hospital positions proposed for elimination, as were the other members of the County Commission when they reviewed the list. However, it was not shown by a preponderance of the credible evidence that the Respondent was the cause of her termination at the hospital or that the Respondent was the primary factor behind the inclusion of her name on the list, as opposed to considerations of the financial problems of the hospital and the nature of her responsibilities there. T 71, 81-83.
34. The Respondent intended that Gandy not be employed at all with the County. T 67, 74; Kendig, 13-18, 22. His motive was to exact retribution against her for her failure to support him in the 1983 runoff election for the County Commission seat. T 30-31, 51-53.
35. The Respondent actions in having Gandy removed from consideration as a part-time EMT were with wrongful intent, as his actions were willful and were intended to exact retribution against Gandy for the exercise of her lawful rights. The Respondent acted to obtain a benefit for himself through attempting to increase his political power by eliminating political opposition. However, given the evidence concerning the financial problems at the hospital and the non-essential nature of Gandy's position there, it is not found that the Respondent acted with wrongful intent in reviewing the positions proposed for elimination at the hospital. The evidence presented on this issue was not sufficient to conclude by a preponderance either that the Respondent intended to exact retribution against Gandy at that time or that he approved the elimination of her position based upon legitimate considerations.
36. The Respondent's actions in having Gandy removed from consideration as a part-time EMT were inconsistent with the proper performance of his public duties, because they were beyond the scope of his authority as a County Commissioner. However, his action in reviewing the proposed list of non-essential hospital positions for elimination cannot be said to have been beyond the scope of his authority as a County Commissioner, as all Commissioners were contacted and asked to review the list of positions. Because of this and because of the determination by others that Gandy's position was not essential in light of the magnitude of the hospital's financial problems, his action in reviewing the list and his role in having Gandy's position terminated cannot be considered to have been inconsistent with the proper performance of his public duties, any more than the actions of the other Commissioners, regardless of the Respondent's motives in doing so.
Section 112.313(6), Florida Statutes, provides:
MISUSE OF PUBLIC POSITION.--No public officer or employee of an agency shall corruptly use or attempt to use his official position or any property or resource which may be within his trust, or perform his official duties, to secure a special privilege, benefit, or exemption for himself or others. This section shall not be construed to conflict with s. 104.31.
For purposes of this statute, the term "corruptly" is defined by Section 112.312(7), Florida Statutes, as follows:
'Corruptly' means done with a wrongful intent and for the purpose of obtaining, or compensating or receiving compensation for, any benefit resulting from some act or omission of a public servant which is inconsistent with the proper performance of his public duties.
Based on the foregoing findings of fact, the undersigned Hearing Officer recommends that the Commission on Ethics make the following conclusions of law:
1. The Respondent, Grady Albritton, in his capacity as County Commissioner for Escambia County, was subject to the provisions of the Code of Ethics for Public Officers and Employees contained in Part III of Chapter 112, Florida Statutes, and is subject to the continuing jurisdiction of the State of Florida Commission on Ethics.
2. With respect to an alleged violation of Section 112.313(6), Florida Statutes, the Advocate must establish by a preponderance of the evidence that:
a. The Respondent was either a public officer or a public employee;
b. The Respondent used or attempted to use his official position or property or resources within his trust, or performed his official duties.
c. The Respondent's actions were done with an intent to secure a special privilege, benefit, or exemption for himself or others; and
d. The Respondent's actions were done "corruptly," that is,
(1) done with a wrongful intent, and
(2) done for the purpose of benefiting from some act or omission which was inconsistent with the proper performance of public duties.
3. The Respondent "used or attempted to use his official position" as a County Commissioner for Escambia County by using and attempting to use his influence over County employees to have Louise Gandy terminated from her employment at University Hospital and no longer used as a part-time relief EMT for the County.
4. The Respondent was acting to secure a special benefit for himself through exacting retribution against Louis Gandy for her failure to support him during the 1983 runoff election for the Board of County Commissioners and for supporting his political opponent. In a prior complaint, In re Clyde J. (Buddy) Wise, 6 FALR 6366 (1984), the Commission found that a county commissioner had violated Section 112.313(6), Florida Statutes, by using his influence over county employees to have adverse personnel action taken against the complainants, who were county EMT's who had supported the commissioner's opponent in an election. In that order, the Commission stated:
The use of one's office for retribution in this fashion constitutes a 'special benefit' for oneself, as the natural result of such an act is to increase a public official's power and influence through intimidating the political actions of employees who otherwise might support an opposing candidate.
Similarly, here, the Respondent's actions constituted and were intended to result in a "special benefit" for himself.
5. With respect to Gandy's no longer being used as a part-time relief EMT, the Respondent acted "corruptly" within the meaning of the statute. His actions were willful and intentional; they were directed at exacting retribution against Louise Gandy for her political actions and were beyond the scope of the Respondent's authority as a County Commissioner. Thus, his actions were done with a wrongful intent and were inconsistent with the proper performance of his public duties.
6. However, with respect to the elimination of Gandy's position at the hospital, the Respondent did not act "corruptly" within the meaning of the statute. Although his actions may have been with wrongful intent, they were not inconsistent with the proper performance of his public duties. At the time he was consulted (along with the other Commissioners) about which positions would be eliminated, Gandy's position was already on the list. As found above, it cannot be said that reviewing that list was beyond his authority. Further, as found above, there was not sufficient persuasive evidence that Gandy's name was placed on the list because of the Respondent's desire for retribution, as opposed to considerations of the financial problems of the hospital and the nature of her responsibilities there.
7. Accordingly, the Respondent has violated Section 112.313(6), Florida Statutes, through his actions in seeking to have Louise Gandy no longer be used as a part-time EMT for the County. However, the Respondent did not violate Section 112.313(6), Florida Statutes, by his actions in seeking to have her employment at University Hospital terminated.
Having concluded that the Respondent has violated the Code of Ethics for Public Officers and Employees, it is necessary to consider what penalty, if any, would be appropriate for the violation. Of the possible penalties provided in Section 112.317(1)(a), Florida Statutes, only three are potentially applicable to a public officer who, like the Respondent, no longer holds office: public censure and reprimand; a civil penalty not exceeding $5,000; and restitution of any pecuniary benefits received because of the violation committed. It has not been shown that the Respondent received any pecuniary benefits because of the violations found here, so restitution would not be an appropriate penalty.
In the Wise case mentioned above, the Commission recommended that the Governor publicly censure and reprimand the respondent and impose a civil penalty of $1,000.00. There, the hearing officer's recommended order noted that similar conduct had occurred in the past in this State, but that one of the purposes of the Code of Ethics was to eliminate such practices, which tend to make governmental employees respond to political pressure instead of their best, informed, professional judgment. The Wise case was the Commission's first to involve misuse of public position against subordinate employees for political retribution and benefit; that case served to put all public officers on notice that such conduct was no longer to be tolerated in this State.
As the Respondent was on notice at the time of his actions that his conduct was violative of the Code of Ethics, it is appropriate that a greater civil penalty be imposed against him than was recommended in Wise. However, given the Respondent's age (75 at the time of the public hearing) and the fact that he no longer holds public office, a much greater civil penalty would appear to be too harsh. Therefore, it is recommended that the Commission recommend that the Governor publicly censure and reprimand the Respondent and impose a civil penalty of $2,000.00 against him.
Based on the foregoing findings of fact and conclusions of law, the undersigned Hearing Officer recommends that the Commission on Ethics enter a final order and public report finding that the Respondent, Grady Albritton, has violated Section 112.313(6), Florida Statutes, through his actions in seeking to have Ms. Gandy no longer be used as a part-time EMT for the County and that the Respondent did not violate Section 112.313(6), Florida Statutes, through his actions regarding Ms. Gandy's termination from employment at University Hospital. Further, the Hearing Officer recommends that the Commission's order recommend that the Governor of the State of Florida publicly censure and reprimand the Respondent and impose a civil penalty upon him in the amount of $2,000.00.
ENTERED and respectfully submitted this ____ day of February, 1990.
Richard A. Gilbert
Hearing Officer and Member
Commission on Ethics
Copies furnished to:
Mr. Grady Albritton, Respondent
Mr. Craig B. Willis, Commission Advocate
The following are rulings on the proposed findings of fact submitted by the Advocate:
3. Accepted, except that the record does not support a finding that there were six candidates in the election.
4. Accepted, except that the record does not support a finding that there were three other candidates eliminated in the election.
10. Accepted, except that the record does not support a finding that Public Trust Corporation was the outside consulting firm which managed the hospital.
22. Accepted as found in paragraph 22; however, the record does not support a finding that Bates had no intention of stopping Gandy's part-time work.
25. Accepted first sentence; second sentence rejected on the basis of Bates testimony at T 81.
30. Rejected as being irrelevant to the issues presented.
34. Accepted as found in paragraphs 35 and 36; otherwise rejected for the reasons expressed in paragraph 36.