STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
In Re FREDDIE LEE CRAWFORD )
Respondent, ) CASE NO. 91-5177EC
) COMPLAINT NO. 90-12
Pursuant to written notice a formal hearing was held in this case before Larry J. Sartin, a duly designated Hearing Officer of the Division of Administrative Hearings, on July 7 and 8, 1992, in Miami, Florida.
The Advocate: Virlindia Doss
Assistant Attorney General
Department of Legal Affairs
The Capitol, Suite 1601
Tallahassee, Florida 32399-1050
For Respondent: Wendall M. Graham, Esquire
Ingraham Building, Suite 717
25 S. E. Second Street
Miami, Florida 33131-1686
STATEMENT OF THE ISSUES
Whether the Respondent, Freddie Lee Crawford, violated Section 112.313(6), Florida Statutes, by improperly writing off costs of services provided by the Jail Industries Program to the theatrical production of "Dunbar Dunbar".
On or about January 10, 1990, a Complaint against the Respondent, Freddie Lee Crawford, was filed with the Florida Commission on Ethics (hereinafter referred to as the "Commission"). Based upon a review of the Complaint, the Commission issued a Determination of Investigative Jurisdiction and Order to Investigate on March 12, 1990, ordering the staff of the Commission to conduct a preliminary investigation into the charges against Mr. Crawford.
Following the Commission's investigation of the allegations against Mr. Crawford, a Report of Investigation was released on December 14, 1990. Based upon the Complaint and the Report of Investigation an Advocate for the Commission issued an Advocate's Recommendation on February 6, 1991. The Advocate determined that there was probable cause to believe that Mr. Crawford violated Section 112.313(6), Florida Statutes, with regard to one of two incidents alleged in the Complaint. The Advocate determined that there was no probable cause with regard to the other incident.
Based upon the Report of Investigation and the Advocate's Recommendation, the Commission issued an Order Finding Probable Cause on March 12, 1991. The Commission concluded there was no probable cause to believe that Mr. Crawford violated Section 112.313(6), Florida Statutes, with regard to an incident involving painting services. The Commission concluded, however, that there was probable cause to believe that Mr. Crawford had violated Section 112.313(6), Florida Statutes, with regard to the incident at issue in this proceeding and ordered that a public hearing be conducted.
By letter dated August 14, 1991, the Commission referred the matter to the Division of Administrative Hearings and, in accordance with Rules 34-5.010 and 34-5.014, Florida Administrative Code, requested that the public hearing on the Complaint against Mr. Crawford be conducted by the Division of Administrative Hearings.
The hearing was initially scheduled for February 4 and 5, 1992. The hearing was rescheduled for February 6 and 7, 1992, by a Second Notice of Hearing entered September 24, 1991.
On January 15, 1992, the Respondent filed a Motion for Continuance. The continuance was granted by an Order Granting Motion for Continuance entered January 16, 1992. The final hearing was then scheduled for July 7 and 8, 1992, by a Third Notice of Hearing entered February 5, 1992.
On June 25, 1992, the Respondent filed a second Motion for Continuance. That motion was denied by Order entered July 2, 1992.
At the final hearing the Advocate presented the testimony of Anthony Dawsey, Patricia Mellerson, Willie James Johnson and Dewey Willard Knight, Jr. The Advocate offered three exhibits for identification purposes. Advocate's exhibits 1 and 2, were accepted into evidence. A ruling on Advocate's exhibit 3, was reserved and the parties were given until July 31, 1992, to file written argument concerning the admissibility of Advocate's exhibit 3. The parties were also informed that the admissibility of Advocate's exhibit 1 could be addressed in any written argument they filed. The Advocate filed argument concerning the admissibility of the exhibits. Respondent filed a Waiver of Right to File Supplemental Argument. Based upon a review of the Advocate's argument and the exhibits, Advocate's exhibit 3 is accepted for impeachment purposes only. Advocate's exhibit 1 was properly accepted into evidence.
Mr. Crawford testified on his own behalf. Mr. Crawford also presented the testimony of Mr. and Mrs. Earl Wells, James Ferrell, Marshall Davis, Kevin Hicky, Francis Joseph Brophy, Jr., Robert Harrison Sims, Sara Heatherly, the Honorable Robert Bernard Ingram, Mayor of Opolaka, the Honorable Xavier Saurez, Mayor of the City of Miami, and Bill Byrd. Mr. Crawford also presented two exhibits for identification purposes. Mr. Crawford did not offer any exhibit into evidence. No copy of Respondent's exhibits were provided to the undersigned.
No transcript of the final hearing was ordered by the parties. The parties also waived the right to file proposed recommended orders.
FINDINGS OF FACT
A. The Respondent.
1. At all times relevant to this proceeding, the Respondent, Freddie Lee Crawford, served as the Director of the Metropolitan Dade County Department of Corrections and Rehabilitation (hereinafter referred to as "Corrections").
2. Mr. Crawford is currently employed by Metropolitan Dade County (hereinafter referred to as the "County").
B. The Jail Industries Program.
3. Corrections created a program known as the Jail Industries Program to assist in the rehabilitation of individuals under the control of Corrections.
4. The Jail Industries Program, among other things, operated a nursery business known as Metro Tree. Metro Tree operated a nursery where plants and flowers were sold at retail. Metro Tree also provided landscaping services, painting services and other services to the public and to the County.
5. Metro Tree, which was located in a predominately Black community, provided certain services which were of benefit to the community, including maintenance of some road medians. These services were consistent with the duties and responsibilities of the County.
C. Resource Investors, Inc.
6. In July, 1986, Resource Investors, Inc. (hereinafter referred to as the "Corporation"), was formed as a for-profit corporation.
7. The Corporation was formed for the purpose of acquiring the Heritage School of Miami Shores (hereinafter referred to as the "Heritage School").
8. Patricia Mellerson, a real estate agent, organized the formation of the Corporation and the acquisition of the Heritage School.
9. The Corporation was formed by ten investors.
10. Mr. Crawford was one of the original ten investors of the Corporation. In addition to owning an interest in the Corporation, Mr. Crawford also served as a member of the board of directors of the Corporation.
11. At all times relevant to this proceeding, Mr. Crawford was an owner of the Corporation.
12. The ten investors in the Corporation all contributed approximately $5,000.00 for their interest in the Corporation. The initial contributions to capital were used as a down payment to acquire the Heritage School.
13. Mr. Crawford also loaned several thousand dollars to the Corporation because of difficulties the Corporation experienced in meeting its financial obligations.
14. Mr. Crawford invested in the Corporation, in part, because of a desire to benefit the community. Mr. Crawford also though it would beneficial to the Black community for an inner city school to be owned and operated by members of the community.
15. As an owner of the Corporation Mr. Crawford also stood to gain or lose financially depending on the financial success or failure of the Corporation.
D. The Corporation's Fund-Raising Effort.
16. When the Heritage School was acquired, the corporation committed to the payment of a balloon payment of $25,000.00 on the note issued for the Heritage School acquisition by the Corporation. The balloon payment was due one year after closing on the purchase.
17. The Corporation was concerned about how the $25,000.00 balloon payment would be raised. The operation of the Heritage School was not sufficient to raise the funds needed.
18. The Corporation was also in need of funds to pay for roof problems discovered after the Heritage School was acquired.
19. Ultimately, after discussions in which Mr. Crawford participated and at the suggestion of Mr. Crawford, the Corporation decided to present a play titled "Dunbar Dunbar" (hereinafter referred to as the "Play"), in an effort to raise funds needed to make the balloon payment.
20. The Play was about the life of Paul Lawrence Dunbar, an Afro-American poet.
21. It was also decided that the Play would be presented during February, 1987, as part of Black History Month.
22. The Play was to be performed at the Joseph Caleb Center (hereinafter referred to as the "Caleb Center").
23. The Caleb Center is a County-owned governmental complex located in the same Black community as Metro Tree. Among other things, the Caleb Center consists of an auditorium where the Play was to be performed. The auditorium was operated by the Parks and Recreation Department of the County.
24. Mr. Crawford was a great admirer of Mr. Dunbar and his work.
25. Mr. Crawford saw the Play in California in 1984 or 1985. Mr. Crawford believed that the Play was an important play which would benefit young people, especially Afro-American young people.
26. Mr. Crawford had acquired a number of copies of a book of Mr. Dunbar's poetry, which were available for purchase in the County jail. Mr. Crawford also arranged to have a video recording of the Play shown to inmates and readings of Mr. Dunbar's poetry were presented over the prison television network.
27. The Play was performed at the Caleb Center in February, 1987. The Play was not a financial success. The Play ended up losing approximately $8,000.00.
28. Ultimately, the Corporation was unable to make the balloon payment and declared bankruptcy.
E. The Black Arts Board of the Culmer Cultural Arts Zone.
29. The Black Arts Board of the Culmer Cultural Arts Zone (hereinafter referred to as "BABCCAZ"), was an organization of artists and business people interested in improving cultural activities at the Caleb Center and other locations.
30. Mr. Crawford served on the board of BABCCAZ.
31. At approximately the same time that Mr. Crawford suggested that the Corporation sponsor the Play, Mr. Crawford also suggested to the BABCCAZ governing board that BABCCAZ join in the promotion of the Play. Mr. Crawford wanted to get BABCCAZ involved in order to enhance awareness of the Play.
32. BABCCAZ ultimately agreed to be listed as a "presenter" of the Play on placards advertising the Play. The Parks and Recreation Department was also listed as a presented.
33. BABCCAZ's (and Parks and Recreation's) involvement in the Play did not change the fact that the Corporation would benefit from all funds generated by the Play. Neither BABCCAZ or Parks and Recreation were financially interested in the outcome of the play.
F. Services Provided by Metro Tree for "Dunbar Dunbar".
34. Mr. Crawford directed Anthony Dawsey of Metro Tree to spruce up the Caleb Center for the upcoming presentation of the Play. Mr. Crawford directed that Mr. Dawsey insure that the Caleb Center "looked good."
35. Work crews from Metro Tree were dispatched to the Caleb Center and they performed the following services:
a. Signs advertising the Play were painted and placed on the property;
b. The grounds of the Caleb Center were cleaned of trash and debris;
c. Some plants were planted on the grounds of the Caleb Center;
d. Other plants in pots were loaned to the Caleb Center temporarily during the presentation of the Play;
e. Flowers were provided during the presentation of the Play; and
f. Plants in pots were placed on the stage at the Caleb Center during the Play. They were placed at the direction of the Play's production people.
36. After the Play ended, almost all the materials (plywood for the signs and plants) were returned to Metro Tree, except flowers used to spell the name of the Play and plants planted in the ground.
G. Services Provided by Metro Tree to Parks and Recreation
and for Other County Purposes.
37. Metro Tree had, in the past, provided services to the County's Parks and Recreation Department. A liaison person between Parks and Recreation and Metro Tree had even been established.
38. At the time of the events at issue in this proceeding, however, Metro Tree was not providing the type of services it provided at the Caleb Center on behalf of Parks and Recreation.
39. In addition to the fact that Parks and Recreation was not using Metro Tree at the time of the events in question, Parks and Recreation was not responsible for the grounds around the Caleb Center during the end of 1986 or early 1987. Mr. Crawford was apparently not aware of this fact because he had telephoned the director of Parks and Recreation, Bill Byrd, and asked if he had any objection to Metro Tree cleaning up the grounds around the Caleb Center in preparation for the Play. Mr. Byrd indicated he had no problem.
40. Metro Tree also provided services as "in-kind" (services for which the recipient was not charged) or for a reduced charge to other groups, individuals and County officials. Those services, however, involved non-profit and County related functions.
41. Metro Tree did not provide "in-kind" or reduced-rate services to private individuals or for-profit entities such as the Corporation.
H. Value of the Metro Tree Services Provided for the Play.
42. Consistent with established policy, the value of the services provided to the Caleb Center was determined by Willie Johnson, who was the immediate supervisor of the crews that provided the services.
43. The value of services provided at the Caleb Center by Metro Tree was based upon the hours that the crews worked and a set hourly rate for labor, set rates for the use of plants provided and set values of plants and flowers which were not returned. Mr. Johnson kept track of the hours of work, men involved, trucks used and the materials used.
44. The value of the services provided for the Play by Metro Tree was approximately $5,856.00. Although the services had other benefits as discussed, infra, the total value of the services benefited the Play.
45. The value of the services, consistent with what they were provided for, was listed in the accounts of Metro Tree as "Dunbar Dunbar" and not Caleb Center.
I. Failure to Pay for Metro Tree's Services.
46. Advocate's exhibit 2 lists all the "in-kind services" provided by Metro Tree during the fiscal year of the County of October 1, 1986, to September 30, 1987. These services were considered and treated as services to the County (directly or to non-profit organizations) for which no charge was made.
47. In-kind services were accounted for budget purposes. Metro Tree was expected to be a self-sustaining (not funded by the County) entity and in-kind services were recorded to show the amount of services provided for which Metro Tree was not reimbursed.
48. The value of the services provided by Metro Tree to the Play is listed on Advocate's exhibit 2 as an "in-kind" service.
49. At the direction of Mr. Crawford, Metro Tree did not bill the Corporation for the $5,856.00 of services it provided to the Play. See Lines 16-25, Page 56 and Lines 1-12, Page 57, Advocate's exhibit 1. Nor did the Corporation, or any other individual or entity pay Metro Tree for those services.
J. Purpose for the Metro Services.
50. Some, but not all, of the services provided by Metro Center at the Caleb Center benefited the Caleb Center. The testimony suggesting that the fact that the Caleb Center was in need of the work performed by Metro Tree was the primary reason for providing the services is rejected. If the need of the Caleb Center was the emphasis for providing the services, why were the services not provided earlier and, more importantly, why weren't the services provided after the Play was presented?
51. The Play was presented as part Black History Month and was about the life of an Afro-American poet. The presentation of the Play was, therefore, also of benefit to the community.
52. If the Play had been successful financially, it would also have benefit the Heritage School, an inner city school owned by Black investors. This would have been beneficial to the community.
53. Despite the public good described in findings of fact 50, 51 and 52, the weight of the evidence proved that the services provided by Metro Tree at the direction of Mr. Crawford were of primary benefit to the Play and the financial well-being of the Corporation. It cannot be ignored that, had the Play been successful, Mr. Crawford stood to benefit financially. If nothing else, Mr. Crawford might not have lost his $5,000.00 investment in the Corporation and the approximately $2,600.00 of other expenditures he advanced which were not repaid.
54. Mr. Crawford was aware that the success of the Play would impact him financially. To conclude otherwise would be to believe that Mr. Crawford was a very poor businessman or at least naive. Such a conclusion is not supported by the weight of the evidence based upon Mr. Crawford's testimony, the success of his professional career and his educational background. Therefore, although Mr. Crawford directed that Metro Tree provide services to the Play and allowed those services to written off in part because of his interest in Mr. Dunbar and his desire to benefit the community, the evidence proved that he also did so because of his financial interest.
55. Mr. Crawford was aware that Metro Tree should have been paid by the Corporation for the services provided in conjunction with the Play. Mr. Crawford testified in his deposition of January 17, 1992, that the Corporation would have been billed had the Play made money. Lines 18-25, Page 55 and Lines 1-5, Page 56, Advocate's exhibit 1.
56. Although Advocate's exhibit 2 was reviewed during the County budget process for the next fiscal year and no question about the services provided by Metro Tree to the Play were raised by County officials, it would be unlikely that such an expenditure, involving such a relatively small amount of funds would have been noticed or specifically considered. Corrections' budget ranged from approximately 14 million dollars in 1981 to approximately 90 million dollars in the late 1980's. Therefore, the evidence failed to prove that the in-kind services to the Play were somehow "approved" by County officials.
57. Evidence was also presented to suggest that the Assistant County Manager approved the services provided by Metro Tree to the Play. Although the testimony on this issue was not conclusive, even taken in its most favorable light to Mr. Crawford, the Assistant County Manager was not aware that the Play was being put on by the Corporation, a for-profit entity, as a means of raising funds to pay the Corporation's debts. All that the Assistant County Manager, and others involved with the Play, knew was that a play about a Black poet was being presented as part of Black History Month. Therefore, if the Assistant County Manager approved the services of Metro Tree, he would have done so because of the public good described in findings of fact 50, 51 and 52 and without knowledge of the motive described in findings of fact 53, 54 and 55.
CONCLUSIONS OF LAW
A. Jurisdiction and Burden of Proof.
58. The Division of Administrative Hearings has jurisdiction of the parties to and the subject matter of this proceeding. Section 120.57(1), Florida Statutes (1991). Section 112.322, Florida Statutes, and Rule 34-5.0015, Florida Administrative Code, authorize the Commission to conduct investigations and make public reports on complaints concerning violations of Part III, Chapter 112, Florida Statutes (the "Code of Ethics for Public Officers and Employees").
59. The burden of proof, absent a statutory directive to the contrary, is on the party asserting the affirmative of the issue of the proceeding. Antel v. Department of Professional Regulation, 522 So.2d 1056 (Fla. 5th DCA 1988); Department of Transportation v. J.W.C. Co., Inc. 396 So.2d 778 (Fla. 1st DCA 1981); and Balino v. Department of Health and Rehabilitative Services, 348 So.2d 249 (Fla. 1st DCA 1977). In this proceeding it is the Commission, through the Advocate, that is asserting the affirmative: that Mr. Crawford violated Section 112.313(6), Florida Statutes. Therefore, the burden of proving the elements of Mr. Crawford's alleged violation was on the Commission.
60. The Commission has ruled that the standard of proof in cases before it require that the Commission prove its charges by a preponderance of the evidence. In Re Michael Langton, Complaint No 90-86 (Final Order, January 28, 1992). See also, In Re Leo C. Nicholas, 11 F.A.L.R. 5234 (1989).
B. Mr. Crawford's Alleged Violation of Section
112.313(6), Florida Statutes.
61. Section 112.313(6), Florida Statutes, provides, in pertinent part, the following:
(6) 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.
In order for it to be concluded that Mr. Crawford violated Section 112.313(6), Florida Statutes, proof of the following elements must be presented:
a. Mr. Crawford must have been either a
public officer or public employee;
b. Mr. Crawford must have used, or attempted
to use, his official position or property or
resources within his trust, or performed his
(1) Corruptly; and
(2) With an intent to secure a special
privilege, benefit or exemption for himself
62. The specific charge against Mr. Crawford concerning his alleged violation of Section 112.313(6), Florida Statutes, is that Mr. used his position as Director of Corrections to improperly write-off the costs of the services he directed be provided by Metro Tree to the Play.
1. The First Element: Public Officer or Public
63. Section 112.313(1), Florida Statutes, defines the terms "public officer" to include "any person elected or appointed to hold office in any agency . . . ." An "agency" is defined in Section 112.312(2), Florida Statutes, to mean "any state, regional, county, local, or municipal government entity of this state, whether executive, judicial, or legislative . . . ."
64. The evidence proved that Mr. Crawford was appointed to serve as the Director of Corrections. Mr. Crawford, therefore, was a "public officer" for purposes of Section 112.313(6), Florida Statutes.
2. The Second Element: Use of Official Position or
Property or Resources.
65. The second element of a violation of Section 112.313(6), Florida Statutes, has also been proved. The evidence proved that Mr. Crawford used his official position as Director of Corrections and property or resources within his trust (Metro Tree) when he directed that Metro Tree provide the services it provided to the Play and when he failed to see that the Corporation was billed for those services.
66. The evidence also proved that Mr. Crawford's actions were done corruptly and with the intent of securing a special privilege or benefit for himself or others. The term "corruptly" is defined in Section 112.313(7), Florida Statutes, as follows:
(7) "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.
67. The evidence in this case proved that there were several reasons why Mr. Crawford directed that Metro Tree provide the services it provided to the Play and why he failed to see that the Corporation was billed for those services. Some of the reasons for these actions were legitimate. If the legitimate reasons for providing the services had been the only reasons, or even the primary reasons for provided the services, Mr. Crawford would not have acted corruptly in violation of Section 112.313(6), Florida Statutes. The evidence, however, supported a finding that the legitimate reasons for providing the services and not billing for them were secondary.
68. The primary beneficiary of the services and the failure to bill for those services was the Corporation, an entity that Mr. Crawford was an owner and financial supporter of. Mr. Crawford knew that the financial success or failure of the Corporation depended on the financial success of the Play. Therefore, Mr. Crawford acted with a wrongful intent when he directed that the services of Metro Tree be provided to the Play and he allowed the fee for the services to be written off.
69. Finally, the evidence proved that Mr. Crawford intended to secure a financial benefit to the Corporation, and ultimately, to himself, by providing the free services of Metro Tree.
69. Based upon the foregoing, it is concluded that Mr. Crawford violated Section 112.313(6), Florida Statutes.
70. Section 112.317, Florida Statutes, provides penalties which may be imposed for a violation of the Code of Ethics for Public Officers and Employees. Section 112.317, Florida Statutes, provides, in pertinent part, the following:
(1) Violation of any provision of this
part . . . shall, pursuant to applicable
constitutional and statutory procedures,
constitute grounds for, and may be punished
by, one or more of the following:
(a) In the case of a public officer:
. . . .
2. Removal from office.
3. Suspension from office.
4. Public censure and reprimand.
5. Forfeiture of no more than one-third
salary per month for no more than 12 months.
6. A civil penalty not to exceed $5,000.
7. Restitution of any pecuniary benefits
received because of the violation committed.
The Advocate has recommended that a penalty of $2,000.00 be imposed in this matter. The Advocate has also recommended that Mr. Crawford be required to make restitution in the amount of $5,856.00.
71. Although the severity of Mr. Crawford's offense cannot be minimized, it should not be ignored that, in addition to the corrupt purpose of Mr. Crawford's actions, some good came out of Mr. Crawford's actions. It also cannot be ignored that Mr. Crawford's actions did not ultimately benefit the Corporation or Mr. Crawford except to the extent that the Corporation was provided with free services.
72. Based upon a consideration of all of the evidence in this case, it is concluded that Mr. Crawford should be required to make restitution of the $5,856.00 of services the Corporation was provided. No civil penalty is recommended.
Based upon the foregoing Findings of Fact and Conclusions of Law, it is
RECOMMENDED that the Commission on Ethics enter a Final Order and Public Report finding that the Respondent, Freddie Lee Crawford, violated Section 112.313(6), Florida Statutes, as alleged in Complaint No. 90-12. It is further
RECOMMENDED that Mr. Crawford be required to make restitution of the $5,856.00 of services the Corporation was provided.
DONE and ENTERED this 11th day of September, 1992, in Tallahassee, Florida.
LARRY J. SARTIN
Division of Administrative Hearings
The DeSoto Building
1230 Apalachee Parkway
Tallahassee, Florida 32399-1550
Filed with the Clerk of the
Division of Administrative Hearings
this 11th day of September, 1992.
Assistant Attorney General
Department of Legal Affairs
The Capitol, Suite 101
Tallahassee, Florida 32399-1050
Wendell M. Graham, Esquire
Ingraham Building, Suite 717
25 Southeast Second Avenue
Miami, Florida 33131-1686
Bonnie J. Williams
The Capitol, Room 2105
P. O. Box 6
Tallahassee, Florida 32302-0006
NOTICE OF RIGHT TO SUBMIT EXCEPTIONS
ALL PARTIES HAVE THE RIGHT TO SUBMIT WRITTEN EXCEPTIONS TO THIS RECOMMENDED ORDER. ALL AGENCIES ALLOW EACH PARTY AT LEAST 10 DAYS IN WHICH TO SUBMIT WRITTEN EXCEPTIONS. SOME AGENCIES ALLOW A LARGER PERIOD WITHIN WHICH TO SUBMIT WRITTEN EXCEPTIONS. YOU SHOULD CONTACT THE AGENCY THAT WILL ISSUE THE FINAL ORDER IN THIS CASE CONCERNING AGENCY RULES ON THE DEADLINE FOR FILING EXCEPTIONS TO THIS RECOMMENDED ORDER. ANY EXCEPTIONS TO THIS RECOMMENDED ORDER SHOULD BE FILED WITH THE AGENCY THAT WILL ISSUE THE FINAL ORDER IN THIS CASE.