STATE OF FLORIDA
COMMISSION ON ETHICS
In re LOUISE BLACKBURN, )
Respondent. ) Complaint Nos. 88-53
) and 88-100
RECOMMENDED PUBLIC REPORT OF HEARING OFFICER
This matter was initiated by the filing of a complaint alleging that the Respondent, Louise Blackburn, violated the Code of Ethics for Public Officers and Employees. Following a preliminary investigation, the Commission on Ethics found probable cause and ordered a public hearing on the issue of whether the Respondent, while serving as County Commissioner for Gadsden County, violated Section 112.313(6), Florida Statutes, by using county employees and equipment to write and type an article which was used as a campaign advertisement.
A public hearing was held on Friday, May 26, 1989 in the City of Quincy, 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, and Hal Richmond, Esquire, appeared on behalf of the Respondent.
At the hearing the Advocate called the following witnesses: Louise Blackburn, Charles LaCroix, Caroline Wise, and E. W. Lee. Advocate's Exhibits 1 and 2 were received into evidence. The Respondent called Don Vickers and made herself available for questioning by the Hearing Officer. No exhibits were proffered by the Respondent. By agreement, the parties did not submit proposed findings of fact and conclusions of law.
References to the transcript of the hearing are denoted by the letter "T", and references to the Advocate's exhibits are denoted by "AE", followed by the applicable exhibit or page number.
FINDINGS OF FACT
From the evidence presented at the hearing, the undersigned Hearing Officer finds as follows:
1. The Respondent, Louise Blackburn, served as a member of the Gadsden County Board of County Commissioners at all times material to this complaint. T 14; 16-18.
2. During the time Respondent was on the County Commission, a dispute arose between the Commission and the citizens of the County concerning the need for mandatory garbage pickup. T 14-16; 25; 27.
3. In the past, many citizens had taken their garbage to centrally located disposal sites, which had become eyesores. T 26. Also, many citizens had merely dumped garbage at unauthorized locations in the County. T 75.
4. In response to this problem, the County Commission adopted an ordinance requiring each county resident to subscribe to and pay for mandatory garbage pickup. T 15; 25-26.
5. This ordinance was a highly volatile issue in that some citizens strongly disagreed with the Respondent's support of the ordinance. T 16; 25. Against this background, the Respondent faced a reelection contest in which the garbage ordinance was a major issue. T 14-17.
6. During the campaign, the Respondent went for assistance to George LaCroix. T 16-18. Mr. LaCroix was the Director of Planning and Zoning for the County. T 18; 20. While in his office, the Respondent asked him to prepare a document for her use. T 17; 27.
7. The request was made to Mr. LaCroix during his working hours and within the scope of his job duties with the County. He understood the request to be an official request from a County Commissioner, with which he complied. T 26-29.
8. The nature of the document and its intended use were in dispute. Respondent contended that the document she asked LaCroix to prepare was merely to provide her with information which she could use, as a County Commissioner, to respond to questions about the garbage issue. T-22. She also appeared to contend that the article in the newspaper was an attempt to keep the public informed about a particular issue, rather than a campaign advertisement. T 32-33.
9. With respect to the article's intended use, the Respondent admitted that subsequent to her original request for the information, she went back to Mr. LaCroix and asked that he complete the article because the deadline for advertisements for the paper was approaching and she wanted to put it in the paper. T 76-78. The Respondent also admitted that she made political speeches using the material, and then used it in the newspaper advertisement. T 71-72.
10. In reference to the article's nature, the Respondent sought to liken her request to Mr. LaCroix to the request of a public official or a member of the public who seeks information from a public agency about a matter of public concern. Since the information in the article was public, she argues, she did not receive anything that any member of the public could not receive upon a similar request. T 40-41.
11. The article which Mr. LaCroix provided to the Respondent, however, is not merely a compilation of public information. Rather, it contains statements of opinion favoring the garbage ordinance. In fact, Mr. LaCroix did not know some of the pertinent information and left blanks in the article. For example, a blank was left where the Respondent could fill in the cost of complying with the Department of Environmental Regulation requirement. AE 1; T 50-51. The Respondent then went to another County employee, Bill Lee, and got this specific information. T 72-73.
12. The tenor of this article, which was used virtually verbatim in the newspaper advertisement, was persuasive rather than simply informational. It clearly is an attempt to persuade the reader that the decision on the garbage ordinance was the correct decision. For example, the last paragraph of the document Mr. LaCroix gave to the Respondent states:
Good logic and vision in the future on such subjects are not easy, the way we dealt with garbage 17 to 18 years ago no longer fits today's conditions. The Board had no choice but to improve the garbage situation and a big majority of you people are proud of this improvement.
13. The paper given to the Respondent by Mr. LaCroix is in the form of a written advertisement or speech which espoused and forcefully argued in favor of the garbage ordinance, attempting to explain why it was good for the County. AE 1. It therefore is not credible that any member of the public could have Mr. LaCroix prepare a similar article. (See T 51-52). Nor is it credible, in light of the fact that the article was used for the Respondent's private political campaign, that preparation of such an article was part of the normal duties of Mr. LaCroix's position. (See T 43).
14. In reference to the implication that the article placed in the newspaper was to provide information to the public, rather than merely a campaign advertisement, (See T 32-33) it is noted that the article requests the reader to "keep Louise Blackburn working," states that she is a candidate for County Commissioner, and has a notation that it is a paid political advertisement under the Respondent's picture. It therefore appears that the article was a campaign advertisement seeking political support for the Respondent. AE 2.
Section 112.313(6), Florida Statutes, states:
MISUSE OF PUBLIC POSITION.--No public officer or employee of an agency shall 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 provision, the term "corruptly" is defined 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. [Section 112.312(7), Florida Statutes.]
Based upon the above findings of fact, the Hearing Officer recommends that the Commission on Ethics make the following conclusions of law:
1. The Respondent, Louise Blackburn, in that she was a County Commissioner for the Gadsden 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, during the period relevant to the actions at issue in this proceeding. She therefore is subject to the jurisdiction of the State of Florida Commission on Ethics.
2. With respect to the alleged violation of Section 112.313(6), Florida Statutes, it must be established by a preponderance of the evidence that:
a. The Respondent must be or have been a public officer or public employee during the period when the alleged violation occurred.
b. The Respondent must have used or attempted to use her official position or property or resources within her trust, or performed her official duties.
c. The Respondent's actions in element (b) must have been done with an intent to secure a special benefit, privilege or exemption for herself or others.
d. The Respondent's action and intent in elements (b) and (c) must have been done corruptly, i.e.,
i. done with a wrongful intent
ii. done for the purpose of benefiting from some act or omission which is inconsistent with the proper performance of public duties.
3. The Respondent was a County Commissioner for Gadsden County at the time she asked Mr. LaCroix to prepare an article for publication in the newspaper. Therefore, the Respondent was a public officer at the time of the alleged violation, and subject to the provisions of Section 112.313(6), Florida Statutes.
4. The Respondent used her official position in requesting that Mr. LaCroix prepare an article for publication in the paper. She went to Mr. LaCroix in her capacity as a County Commissioner, and he understood her request to be made within that capacity.
5. In addition, the Respondent is deemed to have used resources within her trust as a Commissioner, in that it is reasonable to assume that she knew and in fact intended that Mr. LaCroix would use his public working hours as well as public office supplies and equipment to comply with her request.
6. The completion of the article for use in the Respondent's campaign constituted a special benefit to her. The article cannot accurately be likened to a request of a public official or member of the public who seeks information from a public agency about a matter of public concern. Rather, this article was full of statements of opinion favoring the garbage ordinance and had the format of a political speech.
7. The Respondent argues that since the information in the article was public, she could not have received a special benefit from Mr. LaCroix's having provided it to her. If Mr. LaCroix had only provided information, this might have been true. For example, if a member of the public had sought information concerning the amount of fees which had been collected under the ordinance, or the tons of garbage, or other such information to which Mr. LaCroix had access, then the provision of such information would not have been a special benefit, and Respondent would have been free to use it in her campaign, just as her opponent would have been free to use it in campaigning against her. Despite her protestations to the contrary, that is not was Respondent sought and that is not what she received. She sought from Mr. LaCroix an article that she intended to use for political speeches and for a political advertisement in the newspaper. This was a special benefit and involved using a County employee's time for a private political purpose.
8. It is noted that a Respondent might have requested a public employee to prepare a speech, or "talking paper" which she intended to use for speeches given within her official capacity as a County Commissioner. This was not the case with the Respondent's request to Mr. LaCroix, however, as the evidence establishes that the Respondent requested that he prepare the article specifically for her use in her private political campaign.
9. In that the Respondent asked a County employee to prepare an article which she intended to use for political speeches and as a campaign advertisement, the Respondent acted in manner which was inconsistent with her public duties. Her intent to use the article in her campaign was wrongful within the meaning of Section 112.312(7), Florida Statutes.
10. It is thus concluded that the Respondent violated Section 112.313(6), Florida Statutes.
Having concluded that the elements of the offense have been proven, it is necessary to consider an appropriate penalty for the offense:
1. The ordinance on garbage disposal was a hotly contested issue and Respondent sensed that she was in a battle for political survival which she ultimately lost. Further, it is recognized that she was convinced that her position was correct and that to allow the past situation to continue would have resulted in environmental disaster for the County. However, the situation in which she found herself does not justify the use of County personnel for an overtly political purpose.
2. It is therefore recommended that a civil penalty be imposed against the Respondent in the amount of two hundred and fifty dollars.
Based upon 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, Louise Blackburn, has violated Section 112.313(6), Florida Statutes, and recommending that a civil penalty be imposed upon the her in the amount of two hundred and fifty dollars ($250.00).
ENTERED and respectfully submitted this ___ day of August, 1989.
Hearing Officer and Member
Commission on Ethics
Copies furnished to:
Mr. Hal Richmond, Attorney for the Respondent
Mr. Craig Willis, Advocate for the Commission
Mr. L. L. Shaw, Complainant