STATE OF FLORIDA
COMMISSION ON ETHICS
In re LAWRENCE M. RHODES, )
Respondent. ) Complaint No. 90-5
RECOMMENDED PUBLIC REPORT OF HEARING OFFICER
This matter was initiated upon the filing of a complaint by State Attorney Earl Moreland, who alleged that the Respondent, Lawrence M. Rhodes, violated Section 112.313(6), Florida Statutes. Following a preliminary investigation, the Commission on Ethics found probable cause and ordered a public hearing on whether the Respondent, as Director of the Manatee County Mosquito Control District, violated Section 112.313(6), Florida Statutes, by:
1. Removing a battery charger purchased by the Manatee County Mosquito Control District (MCMCD) to his residence for his personal use;
2. Repairing and allowing MCMCD employees to repair an automobile carburetor EGR plate on a Ford truck belonging to the Respondent;
3. Delivering his automobile transaxle to the MCMCD in a District vehicle assigned to him and having it repaired by MCMCD employees;
4. Having modifications and repairs made on his personal truck by District employees at the District garage during duty hours; and
5. Removing a cable "come-along" device belonging to the MCMCD and never returning it.
A public hearing was held on Thursday, March 28, 1991, in Bradenton, 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 was represented by Donald B. Hadsock, Esq.
At the public hearing the Advocate called the following witnesses: Ray Oxendine, Thomas North, Joel Betts, Thelma Fulwood, Debra Greene, and Duane Rosier. The Respondent called the following witnesses: Wolfgang Goetz, Ralph C. Garrison, and himself. Three exhibits presented by the parties were received in evidence.
The Advocate and the Respondent made closing arguments at the conclusion of the hearing. Both parties waived the filing of written proposed recommended public reports. References to the transcript of the hearing are denoted by the letter "T", followed by the page number; references to the three exhibits received into evidence are as numbered, followed by the page number, if applicable.
From the evidence presented at the hearing, the undersigned Hearing Officer finds as follows:
1. The Respondent, Lawrence M. Rhodes, is employed by the Manatee County Mosquito Control District as its Director. He has served in that capacity for 29 1/2 years. T155.
2. The Manatee County Mosquito Control District is headed by a three-member board, elected by the electors residing within the District. The District's boundaries are contiguous with those of Manatee County. T22-23,152.
3. As Director, the Respondent is responsible for carrying out the directives of the Board. The Respondent has the authority to hire and fire all employees of the District, with the Respondent being accountable only to the Board. T92.
4. The MCMCD is primarily responsible for controlling disease-causing pest mosquitos. T151. At one time it was also responsible for managing the County's landfill, but it no longer has that responsibility.
5. In performing its responsibilities, the MCMCD utilizes a variety of equipment, including vehicles and aircraft. To assist in the maintenance of this equipment, the District employed Ray Oxendine first as a mechanic, and later as a shop foreman, who was responsible for maintaining the District's vehicles and equipment. Mr. Oxendine was employed by the District for over 14 years. T19-20.
6. The District operated under an informal and extremely relaxed policy which permitted employees to use District-owned equipment for their personal use. Employees were permitted to use District equipment to work on their personal vehicles during breaks from work, or after their work day ended. They were also permitted to remove District equipment from the premises for their personal use, with the understanding that they would return it within a short period of time. T61. The informal policy in effect at the District did not permit District employees to do personal work while on District time; nor were they permitted to use District materials. T159. All of the current or former employees who testified at the hearing, including the Respondent, took advantage of this policy. T43,61,159.
7. In an effort to keep track of District equipment, the Respondent had Mr. Oxendine institute a procedure for the signing in and out of equipment used by employees. T56. The procedure involved nothing more than Mr. Oxendine making a note of the person's name on a piece of paper as to what equipment was borrowed and when. When the equipment was returned, Mr. Oxendine would throw the note away. T23,68. Employees were only required to sign out equipment and tools when they borrowed them for their personal use. T67. Mr. Oxendine did not require the Respondent to sign equipment in and out, since as Director, the Respondent was ultimately responsible for all District equipment. T56.
8. As Director, the Respondent is provided with a District vehicle which he is authorized to use for District business as well as for personal matters. T158. The Respondent's work hours are not fixed, as he is essentially on-call at all times. T169. Other employees generally work established hours. The Respondent was occasionally contacted in the middle of the night when there was a problem relating to work. It was expected that the Respondent would respond to these calls as appropriate. The Respondent would occasionally transport District-owned equipment in his vehicle to be used for District business. T158.
9. At one time the District used four-cell batteries to power light traps. Light traps are used to capture mosquitoes for identification, and the batteries had to be recharged periodically. T108. Debra Greene, an entomologist employed by the District, requested that the District obtain another battery charger, as the ones the District had were inadequate. T108-109. The Respondent instructed Mr. Oxendine to purchase one from a local auto parts store. T25. None of the witnesses could testify definitively as to when the battery charger was purchased, and no receipts or invoices were kept of the purchase. According to the Respondent, the District's battery charger was purchased in 1980 or 1981. T28. 10. At some point after the battery charger was purchased, the Respondent borrowed it. Thelma Fulwood, a District employee, saw a battery charger in the back of the Respondent's District vehicle, and saw him return with it and borrow it again several times. T145-146. She also testified that she had observed what she thought was the District's battery charger at the Respondent's house. T101.
11. Ms. Greene had an opportunity to use the battery charger only a few times before it was determined to be missing. After being told by Mr. Oxendine that the Respondent had it, she asked the Respondent to return it, whereupon he told her to use what the District already had. T110. When Mr. Oxendine requested that the Respondent return the battery charger, he was also told that they did not need it and to use what they already had. T30.
12. Mr. Oxendine testified that about six months after the battery charger was purchased by the District, he saw one which appeared to be exactly like the one purchased by the District in the Respondent's barn, and he assumed it was the District's. T25. On a separate occasion, Duane Rosier, another District employee, testified that he had seen what he thought was the District's battery charger in the Respondent's barn. T120. Although he testified that Ms. Greene was with him when he saw the battery charger, Ms. Greene did not testify that she had seen the battery charger in the Respondent's barn. T107-118.
13. Because the District's battery charger was missing and it had been seen in his car, the employees assumed that the Respondent was responsible. The employees' assumptions are bolstered in their minds by his replies when they asked him to return it, and by the fact that a battery charger which appeared to be similar to the one purchased by the District was later seen at the Respondent's house. T25,44-45,101,120.
14. When shown a picture of a battery charger, none of the witnesses could state definitively whether it depicted the District's battery charger. T103-104,115-116,135. Mr. Rosier testified that the battery charger depicted in the picture appeared similar to the one he had seen in the Respondent's barn. T134-136, Exhibit 2. The Respondent testified that the picture the other witnessed attempted to identify had been taken by him, and that it depicted his personal battery charger. He also testified that the two battery chargers were similar in appearance, and that he had instructed Mr. Oxendine to purchase the District's battery charger from the same auto parts store from which he had purchased his own battery charger six months earlier. T161.
15. The ability of the witnesses to recall the incident with more specificity is hampered by the passage of time, as the incident is alleged to have occurred over ten years ago. The intervening ten years precluded the witnesses from testifying consistently that the battery charger was missing at the same time it was seen in the Respondent's possession. Haphazard record keeping practices coupled with the lax policy which permitted employees to borrow District equipment for personal use, as well as the Respondent's occasional need to use District equipment for official purposes, suggest that the Respondent borrowed the battery charger. However, based upon the credibility of the witnesses and upon the weight of the evidence, I do not find by a preponderance of the evidence that the Respondent borrowed the District's battery charger and did not return it. Nor do I find by a preponderance of the evidence that any personal use that the Respondent may have made of the battery charger was inconsistent with the District's policy regarding the use of District equipment.
16. The next allegation was that the Respondent directed District employees to repair the carburetor EGR plate on his personal vehicle using District facilities and equipment. The employees who testified on this issue could not remember with any specificity when this incident occurred, although Mr. Oxendine believed that it occurred sometime before the battery charger incident in the early 1980's. T32.
17. Apparently, operations at the District were so lax that Mr. Oxendine ran what amounted to an auto shop out of the District's facility after hours and on weekends. T173. Initially, Mr. Oxendine helped fellow employees with their automobile repairs and did not charge them for his services. As demand grew, Mr. Oxendine began to charge for his services. T48-49.
18. The Respondent had an exhaust leak in his truck, and used the District's facilities during the employees' work hours to try to locate the leak. Mr. Oxendine and Mr. Rosier were present while the Respondent worked on the truck, and may have even advised the Respondent or handed him tools. However, based upon the credibility of the witnesses, as well as upon the weight of the other evidence, I do not find by a preponderance of the evidence that the Respondent required Mr. Oxendine and Mr. Rosier to repair his carburetor EGR plate. T31-34, 124-125, 168-170. Nor do I find by a preponderance of the evidence that the Respondent's efforts to repair his vehicle were inconsistent with the District's policy regarding the use of District facilities and tools.
19. The third allegation involved an automobile transaxle, which was given to the Respondent by Volkswagon repairman Wolfgang Goetz. T141. The Respondent intended to use the transaxle to build a "swamp buggy." It was given to the Respondent early one morning by Mr. Goetz, with whom the Respondent had coffee on his way to work, although none of the witnesses could testify what year this incident occurred. T34-35. The Respondent placed it in the back of the District station wagon, and when he got to work, he obtained the assistance of Mr. Oxendine and Mr. North to help him get it out of the back of the car so that it would not roll around all day. T34-35, 141-143, 164-167.
20. Mr. North was knowledgable about swamp buggies because he built and raced them. T72. He speculated that the Respondent might have a difficult time removing the hubs on the transaxle. He had developed a special tool that he used to remove hubs from transaxles, but he did not use that tool on the Respondent's transaxle. T166. Although Mr. Oxendine and Mr. North testified that they worked on the transaxle during their work hours at the Respondent's request, the Respondent testified that they did no work on the transaxle other than helping him remove it from the back of his car so that it would not roll around. The Respondent also testified that when he took the transaxle home at the end of the day, no work had been performed upon it. T165-167. The Respondent's testimony is further bolstered by that of Mr. Goetz, who contradicted the testimony of the employees concerning the design of the transaxle and the need for any repairs. T141-142.
21. Based upon the credibility of the witnesses and the weight of the evidence on this issue, I find that the Respondent did not request, either implicitly or explicitly, that Mr. Oxendine and Mr. North remove the hubs from the transaxle on District time using District equipment. T77-78. Because the Respondent was permitted by District policy to make personal use of the District's station wagon, the use of that vehicle to transport the transaxle was not inconsistent with the proper performance of his public duties and did not secure a special privilege or benefit for himself.
22. The fourth allegation involves the Respondent's alleged use of District personnel and supplies to fabricate a tire rack for the Respondent's personal truck.
23. A former District employee gave Duane Rosier a trailer hitch. Mr. Rosier stored the trailer hitch in the District's shop. T126-127. Mr. Rosier is presently employed by the District, and has been for the past 18 years. T118-119.
24. The Respondent ordered Mr. Oxendine to use Mr. Rosier's trailer hitch to fabricate a tire rack from it in order to mount a spare tire on the front of the Respondent's truck. This work was done during Mr. Oxendine's work hours, using the District's facilities and materials. T36-38,51. The Respondent did not ask Mr. Rosier if he could have his trailer hitch for his personal use. T37,126. The project took about two and one-half to three hours, and involved cutting and bending the trailer hitch with an acetylene torch to fabricate the tire rack, drilling holes in the rack, and welding the rack. T36-38. When Mr. Rosier learned from Mr. Oxendine that the Respondent had utilized his trailer hitch to make a tire rack, he never said anything to the Respondent since the Respondent was his boss. T126.
25. Mr. Oxendine did not indicate on his time sheet for that day that he had spent time working on the Respondent's truck because he was afraid that the Respondent would get mad, even though he was expected to fill out time sheets on a daily basis for work he performed in the District's shop. T53,63.
26. Although the Respondent testified that he had fabricated the tire rack from a trailer hitch that he had retrieved from the dump, using his own welding supplies, I find the testimony of Mr. Rosier on this issue to be more credible. T126-128, 162-164. I therefore find that the Respondent did use District personnel and materials to have a tire rack constructed for and installed on his personal truck.
27. The final allegation involves a cable "come-along" device which belonged to the District, and which the Respondent allegedly borrowed for his personal use and never returned.
28. A come-along consists of a winch with a handle and a cable. It is used to provide leverage in order to lift heavy equipment. T38-39.
29. Mr. Oxendine testified that the Respondent borrowed the District's come-along seven or eight years ago, and after that, the come-along was missing. Mr. Oxendine had no knowledge of whether or not the Respondent returned it. T39. Mr. Oxendine did not keep a record of the Respondent's borrowing the come-along. T56.
30. Joel Betts, who was formerly employed by the District as Assistant Director, indicated that the Respondent could have borrowed the come-along, and that the come-along was missing, but he did not know what happened to the come-along. T99. Ms. Greene testified that she heard the Respondent state in a conversation with other District employees that he had used the District's come-along to put up a barbed wire fence at his house, but she did not indicate when she overheard this conversation, or when the Respondent supposedly did the fencing. T111.
31. The Respondent testified that he probably at some time did have the District's come-along in his car for use on District business, but that he had not borrowed the come-along for his personal use and not returned it. He also testified that he last put up barbed wire fencing at his house in either 1974 or 1975. T160.
32. This allegation is also affected by the length of time which has passed since it supposedly occurred, and the inability of the witnesses to be more specific in their testimony. However, based upon the weight of the evidence and the credibility of the witnesses, I do not find by a preponderance of the evidence that the Respondent borrowed the District's cable come-along for his personal use, and then failed to return it.
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, Lawrence M. Rhodes, in his capacity as Director of the Manatee County Mosquito Control District, was a public employee subject to the provisions of the Code of Ethics for Public Officers and Employees contained in Part III of Chapter 112, Florida Statutes, at all times material to this proceeding, 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 evidence adduced at the hearing established that the Respondent used his position as Director of the Manatee County Mosquito Control District to require a District employee to fabricate a spare tire rack for his personal truck using District supplies while on District time. This act conferred a special benefit upon the Respondent.
4. The next element which must be addressed is whether the Respondent acted corruptly. Notwithstanding the evidence that the District operated under an informal policy which permitted District employees to help themselves to District facilities and equipment for their personal use, the evidence established that the employees and the Respondent knew that the employees were not supposed to perform personal work during their duty hours, and that no one was to use District supplies for their personal use. This policy was violated by Mr. Oxendine at the Respondent's direction in this instance, however, indicating both that the Respondent acted with wrongful intent and for the purpose of securing a benefit through action that was inconsistent with the proper performance of his public duties.
5. Based upon the evidence, I therefore conclude that the Respondent violated this informal policy, and concomitantly, Section 112.313(6), Florida Statutes, when he required a District employee to create the spare tire rack during the employee's duty hours using District materials.
6. While denying that his spare tire rack was created by District personnel using District supplies, the Respondent sought to show that the amount of welding involved was insignificant, and the actual cost of supplies was minimal, as welding rods cost less than two and one-half cents each. T162. However, the actual cost of the District's materials is irrelevant to the issue of whether he used his position in violation of Section 112.313(6), Florida Statutes. Nor does it address the use of a District employee's on-duty time.
7. Accordingly, the Respondent did violate Section 112.313(6), Florida Statutes, by corruptly using his official position as Director of the Manatee County Mosquito Control District by using District personnel and supplies to create a tire rack for his personal truck.
8. My conclusions of law on the remaining four allegations follow. These allegations underscore the problem facing a finder of fact when evaluating testimony about incidents purportedly occurring many years ago. Due to the fact that here the alleged incidents occurred nearly ten years ago or more, it is understandable that the specificity of the testimony would be affected. This situation makes it difficult for a finder of fact to accord a great deal of weight to the testimony except where the circumstances of the situation would indicate that the witness would likely have a more vivid recollection of the incident.
9. Based upon the findings of fact, I conclude that the Respondent did not violate Section 112.313(6), Florida Statutes, by removing a battery charger purchased by the District to his residence for his personal use.
10. Based upon the findings of fact, I conclude that the Respondent did not violate Section 112.313(6), Florida Statutes, by repairing and allowing District employees to repair an automobile carburetor EGR plate on a truck belonging to the Respondent.
11. Based upon the findings of fact, I conclude that the Respondent did not violate Section 112.313(6), Florida Statutes, by delivering an automobile transaxle to the District in a District vehicle assigned to him, and having it repaired by District employees.
12. Based upon the findings of fact, I conclude that the Respondent did not violate Section 112.313(6), Florida Statutes, by removing a cable come-along device belonging to the District and never returning it.
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.
The Respondent has served as Director of the Manatee County Mosquito Control District for 29 1/2 years. In that capacity he has been responsible for implementing the policies of the Board, as well as for the day to day operations of the District. The Respondent is also responsible for perpetuating the informal policy which was the subject of much testimony at the public hearing. The casualness in which the Respondent and his employees helped themselves to public resources for their personal benefit is reprehensible to the notion of sound governmental operations. Although the Respondent testified that he discontinued this practice because of abuses, there was testimony that indicated it was only discontinued when employees sought to establish a labor union. Notwithstanding why the practice was stopped, the fact that the Director permitted it at all brings into question his effectiveness as a manager of a governmental agency, as his employees undoubtedly took their cue from his own self-serving actions.
It would have been relatively easy for the Respondent to avoid his present situation if measures had been instituted to correct the laxness which existed at the District. Better recordkeeping practices, as well as better inventory control of District equipment and materials, would have gone a long way towards preventing the allegations which were the subject of this proceeding. Although I am not recommending that the Respondent be terminated from employment, I am hopeful that the Board at whose pleasure he serves will take the necessary steps to ensure that appropriate measures are instituted to prevent this situation from occurring in the future.
Accordingly, under the circumstances presented it is recommended that the Commission on Ethics recommend that the Manatee County Mosquito Control District, as the authority which employs the Respondent as Director, issue a public reprimand and impose a civil penalty of $1,000.00 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, Lawrence M. Rhodes, violated Section 112.313(6), Florida Statutes, by having a spare tire rack fabricated for his personal truck using a District employee and District materials.
The undersigned Hearing Officer also recommends that the Commission's final order and public report find that the Respondent did not violate Section 112.313(6), Florida Statutes, by removing a battery charger purchased by the Manatee County Mosquito Control District to his residence for his personal use; did not violate Section 112.313(6), Florida Statutes, by requiring District employees to repair an automobile carburetor EGR plate on a Ford truck belonging to the Respondent; did not violate Section 112.313(6), Florida Statutes, by delivering an automobile transaxle to the District in a District vehicle and requiring District employees to perform work on it; and did not violate Section 112.313(6), Florida Statutes, by removing a cable come-along device belonging to the District and never returning it, as alleged.
The undersigned Hearing Officer recommends that the Commission's order recommend that the Manatee County Mosquito Control District, as the authority which employs the Respondent as its Director, issue a public reprimand and impose a civil penalty upon the Respondent in the amount of $1,000.00 for his violation of Section 112.313(6), Florida Statutes, while employed as Director of the Manatee County Mosquito Control District.
ENTERED and respectfully submitted this ____ day of June, 1991.
John L. Kalajian
Hearing Officer and Member
Commission on Ethics
Copies furnished to:
Mr. Donald B. Hadsock, Attorney for Respondent
Mr. Craig B. Willis, Commission Advocate
Mr. Earl Moreland, Complainant