STATE OF FLORIDA
COMMISSION ON ETHICS
In re GARY D. LATHAM,†††† )
†††† Respondent.††††††††† )†††† ††††††††††††††††††††††††††††† Complaint No. 94-174
††††††††††††††††††††††††† )†††† ††††††††††††††††††††††††††††† DOAH Case No. 95-3717EC
††††††††††††††††††††††††† )†††† ††††††††††††††††††††††††††††† Final Order No. COE 96-03
FINAL ORDER AND PUBLIC REPORT
This matter came before the Commission on Ethics on the Recommended Order rendered in this matter on January 5, 1996 by the Division of Administrative Hearings (DOAH), a copy of which is attached hereto and incorporated herein by reference.† The Hearing Officer recommends that the Commission enter a final order and public report finding that the Respondent violated Section 112.313(6), Florida Statutes, by engaging in unsolicited and unwanted sexually or romantically oriented behavior toward a subordinate female employee.† As to this violation, the Hearing Officer recommended that a civil penalty of $4,000 be imposed upon the Respondent, and that he be publicly censured and reprimanded.
This matter began with the filing of a complaint by Deborah K. Kearney, alleging that the Respondent, as a member of the Florida Parole Commission, had violated the Code of Ethics for Public Officers and Employees.† The allegations were found to be legally sufficient to allege a possible violation of Section 112.313(6), Florida Statutes, and Commission staff undertook a preliminary investigation to aid in the determination of probable cause.† On July 18, 1995, the Commission on Ethics issued an order finding probable cause to believe that the Respondent had violated Section 112.313(6), Florida Statutes, by engaging in unsolicited and unwanted sexually or romantically oriented behavior toward a subordinate female employee.† The formal hearing before the Hearing Officer was held on October 2 and 3, 1995.† The Recommended Order was transmitted to the Commission and the parties on January 5, 1996, and the parties were notified of their right to file exceptions with the Commission by February 1, 1996 in accordance with Rule 34-5.023(3), Florida Administrative Code.† Respondent thereafter sought and received an extension of time to file his exceptions, up to and including February 12, 1996.† On February 2, 1996, Respondent filed a Motion for Rehearing.† The Advocateís Response to Respondentís Motion for Rehearing was apparently misfiled with the Division of Administrative Hearings on February 13, 1996, and not filed with the Commission until February 26, 1996.† Respondentís Exceptions to Recommended Order were filed on February 12, 1996.† Having reviewed the Recommended Order, Respondentís Motion for Rehearing, the Advocateís Response, Respondentís Exceptions, and the complete record herein, and having considered the arguments of the Respondent and the Advocate made before the Commission at its final consideration of this matter, the Commission makes the following findings, conclusions, rulings, and recommendations.
Under Section 120.57(1)(b)10, Florida Statutes, an agency may reject or modify the conclusions of law and interpretations of administrative rules contained in the recommended order.† However, the agency may not reject or modify findings of fact made by the Hearing Officer unless a review of the entire record demonstrates that the findings were not based on competent, substantial evidence or that the proceedings on which the findings were based did not comply with the essential requirements of law.† See, e.g., Freeze v. Dept. of Business Regulation, 556 So. 2d 1204 (Fla. 5th DCA 1990); and Florida Department of Corrections v. Bradley, 510 So. 2d 1122 (Fla. 1st DCA 1987).† Competent, substantial evidence has been defined by the Florida Supreme Court as such evidence as is "sufficiently relevant and material that a reasonable mind would accept it as adequate to support the conclusions reached."† DeGroot v. Sheffield, 95 So. 2d 912, 916 (Fla. 1957).
The agency may not reweigh the evidence, resolve conflicts therein, or judge the credibility of witnesses, because those are matters within the sole province of the hearing officer.† Heifetz v. Dept. of Business Regulation, 475 So. 2d 1277, 1281 (Fla. 1st DCA 1985).† Consequently, if the record of the DOAH proceedings discloses any competent, substantial evidence to support a finding of fact made by the Hearing Officer, the Commission is bound by that finding.
Similarly, Section 120.57(1)(b)10, Florida Statutes, prohibits the Commission from increasing or decreasing the recommended penalty without reviewing the complete record and stating with particularity its reasons therefore in the order, by citing to the record to justify its action.
The Respondent moves the Commission to investigate and rehear facts not presented by the Respondentís counsel and the Commissionís Advocate in the formal hearing before the Hearing Officer.† As grounds therefore, the Respondent argues that the victimís health was made an issue at the hearing but that he was precluded from pursuing any examination of her mental condition.† He also argues that the victimís medical records had been subpoenaed and were available to the Respondent and the Advocate, and that he now believes the records should have been admissible at hearing.† Additionally, he contends that there is new information that tends to support his case but that was not previously known; and that because his former attorney and the Advocate had improper access to certain privileged material, they should have been disqualified from participating in the proceedings.
Respondentís Motion for Rehearing is denied.† There is no statutory authority to rehear a case for the purpose of hearing new evidence.† In fact, in Fla. Dept. of Transportation v. J.W.C., Inc., 396 So. 2d 778 (Fla. 1st DCA 1981), the court held:
† Substantial authority holds that there is no abuse of discretion in denying a rehearing (or remand) sought for the purpose of introducing evidence that could, in the exercise of due diligence, have been offered at the original hearing.† Id. at 786.
Even more persuasive is the case Henderson Signs v. Fla. Dept. Of Transportation, 397 So. 2d 769 (Fla. 1st DCA 1981), where the agency attempted to remand a case to the Division of Administrative Hearings for the introduction of a critical piece of evidence.† In denying the remand due to the lack of statutory authority for that procedure, the hearing officer wrote:
† It is as inherent in the administrative process as it is in the† judicial process that eventually proceedings must come to an end.† It works a substantial and unfair hardship on a Respondent to permit the agency by trial and error to perfect piecemeal its case against a Respondent.† It is a denial of due process for the agency to proceed in such a manner.† Id. at 771.
It has been the Commissionís practice in other proceedings to deny such requests for remand or for the introduction of additional evidence, where the evidence sought to be admitted could have been introduced during the initial hearing before the Hearing Officer.† In re Rubin DeLeon, 15 F.A.L.R. 2402 (1993); In re Jimmy Bilbo, 17 F.A.L.R. 2637 (1994).†
Here, Respondent has made no showing why the evidence he now wishes to introduce could not have been introduced at the original hearing before the Hearing Officer.† Further, the Commission notes that in the Joint Prehearing Stipulation filed with the Hearing Officer, the Respondent (through his attorney) and the Advocate stipulated to certain facts as not needing to be proved at the hearing.† Inasmuch as the majority of the issues the Respondent now seeks to provide additional evidence on were originally stipulated to, it would seem that Respondentís Motion for Rehearing is nothing more than a means to repudiate the factual stipulations he made in advance of the hearing.† Accordingly, under the reasoning of J.W.C., supra, and Henderson Signs, supra, Respondentís Motion for Rehearing is denied.
1.†† In his first exception, the Respondent excepts to Finding of Fact 5, arguing that it is not based on competent substantial evidence in the record.† The finding itself addresses the circumstances that led to Ms. Billingslea coming to work in the Respondentís office.† Our review of the record reveals competent substantial evidence to support Finding of Fact 5. [T.25]† Further,† Heifetz, supra, reminds us that:
† It is the hearing officer's function to consider all the evidence presented, resolve conflicts, judge credibility of witnesses, draw permissible inferences from the evidence, and reach ultimate findings of fact based upon competent substantial evidence.† Supra. at 1281.
The Hearing Officer ably carried out this function.† Thus,† Respondentís first exception is denied.
2.†† Respondentís Exception Number 2 is directed to Finding of Fact 6, particularly that portion of the finding discussing Chairman Wolson and Mr. Stricklandís view of why Ms. Billingslea would be more interested in working in Mr. Lathamís office than the Chairmanís, and that neither of them were dissatisfied with her job performance.† Respondent argues that the record shows that these findings are conflicting and inconsistent.† Our review of the record establishes that the Hearing Officerís finding is based upon competent substantial evidence. [T.56-57,92-93,106,118,120-121]† Heifetz, supra.† Accordingly, Respondentís Exception Number 2 is denied.
3.†† Respondentís third exception is directed to the second sentence of Finding of Fact 9.† Respondent contends that there is no competent substantial evidence to support the finding that as a career service employee, Ms. Billingslea could not be unilaterally fired by Respondent but that he could set the wheels in motion.† Our review of the record reveals competent substantial evidence on which to base this finding. [T.91]† Accordingly, Respondentís Exception Number 3 is denied.
4.†† Respondentís fourth exception is directed to Finding of Fact 10, which he submits is unsubstantiated by the record.† Our review of the record establishes that there is competent substantial evidence upon which to base this finding. [T.25-26,31]† Accordingly, Respondentís Exception Number 4 is denied.
5.†† In his fifth exception, directed to Finding of Fact 11, the Respondent contends that Ms. Billingsleaís allegations concerning the Respondentís reaction to answering a call for her from a male friend were ďhearsay and speculative.Ē† However, the record reflects that Ms. Billingslea testified about the incident on† direct without objection [T. 26-27], and then Respondentís attorney cross-examined Ms. Billingslea about the incident [T.73-75].† However, even if her statements about her friendís characterization of the Respondent as ďrudeĒ was hearsay, it was not offered to prove that the Respondent was, in fact, rude, but instead, further described the office environment and their working relationship.† The weight to ascribe to the testimony was a function of the Hearing Officer, which she ably carried out.† Because there is competent substantial evidence to support the finding, Respondentís Exception Number 5 is denied.
6.†† The sixth exception filed by the Respondent excepts to Finding of Fact 12, which he claims is not based upon competent substantial evidence.† He† objects especially to the Hearing Officerís characterization of his looking at Ms. Billingslea as ďstrange.Ē† We have reviewed the record, and it appears that this finding is based upon Ms. Billingsleaís testimony. [T.26,31] Because there is competent substantial record evidence to support the Hearing Officerís finding of fact, Respondentís Exception Number 6 is denied.
7.†† His next exception is directed to Finding of Fact 13, which the Respondent argues is irrelevant.† The finding itself concerned the incident where the Respondent drove by Ms. Billingsleaís house.† The appropriate standard of review at this juncture in the proceedings is whether there is competent substantial evidence to support the finding.† If there is, then the weight that the Hearing Officer assigned to that evidence is solely within her province.† Our review of the record reveals that there is competent substantial evidence to support Finding of Fact 13. [T.27-28,78-80] Accordingly, Respondentís Exception Number 7 is denied.
8.†† Respondentís eighth exception concerns Finding of Fact 15.† It is the Respondentís contention that the incident described in the finding is irrelevant and contains no competent substantial evidence of sexual harassment.† Respondentís eighth exception is denied.† The issue before us is not whether this one finding, in and of itself, is sufficient to conclude that the Respondent violated Section 112.313(6), Florida Statutes.† Instead, the issue we must address is whether this finding of fact is supported by competent substantial evidence, and our review of the record reveals the existence of such evidence. [T.28-29,66; Advocateís Exhibit No. 3, p. 62] Accordingly, Respondentís Exception Number 8 is denied.
9.†† In his ninth exception, directed to Finding of Fact 16, the Respondent essentially takes issue with the fact that the Hearing Officer believed Ms. Billingsleaís version of the events over that of the Respondentís.† That is the Hearing Officerís prerogative.† Heifetz, supra.† Because there is competent substantial evidence to support this finding [T.31-35,70-71; Advocateís Exhibit Nos. 7 and 8], Respondentís Exception Number 9 is denied.
10.† In his tenth exception, the Respondent excepts to Finding of Fact 17.† For the same reasons discussed in the preceding paragraph, Respondentís Exception Number 10 is denied.
11.† Respondentís eleventh exception, addressed to Finding of Fact 18, attacks Ms. Billingsleaís credibility and argues that the finding itself is irrelevant and ďfails as competent substantial evidence.Ē† As previously stated, credibility determinations are for the Hearing Officer to make, and where the finding is, as here, supported by competent substantial evidence, we are constrained to accept the finding.† Therefore, Respondentís Exception Number 11 is denied.
12.† Next, Respondent assails Finding of Fact 19.† Nonetheless, the finding is based upon competent substantial evidence. [T.34,86]† Accordingly, Respondentís Exception Number 12 is denied.
13.† In his thirteenth exception, the Respondent excepts to Finding of Fact 20.† Again, this finding of fact is a clear example of the Hearing Officer crediting the testimony of Ms. Billingslea over that of the Respondent.† Notwithstanding, the Respondent has asked us to reweigh the evidence and reach a different conclusion.† We are compelled to decline his invitation and, therefore, deny Exception Number 13.
14.† In his exception to Finding of Fact 21, the Respondent contends that the finding ďdoes not constitute competent substantial evidence toward harassment.† It constitutes competent substantial evidence of Mr. Lathamís innocence.Ē† For the reasons expressed in our denial of Respondentís eighth exception, Respondentís Exception Number 14 is denied.
15.† In his fifteenth exception, the Respondent excepts to Finding of Fact 22 on the grounds that ďit is completely false and† is rejected by Mr. Latham.Ē† Pursuant to Section 120.57(1)(b)10, Florida Statutes, the grounds for an agencyís lawful rejection of a Hearing Officerís finding of fact are much narrower.† Our review of the record reveals that there is competent substantial evidence to support Finding of Fact 22. [T.37-39,44-45] Therefore, Respondentís Exception Number 15 is denied.
16.† Exception Number 16 is directed at Finding of Fact 23. †Respondent does not give any legal basis for rejecting this finding of fact, but instead, attempts to supplement the Hearing Officerís finding of fact with additional facts concerning Ms. Billingsleaís alleged pattern of filing similar complaints.† Additional fact-finding by the Commission is not permitted at this juncture in the proceedings, and there is competent substantial evidence to† support Finding of Fact 23. [T.38-39] Accordingly, Respondentís Exception Number 16 is denied.
17.† Although unnumbered, Respondentís next exception is directed to Finding of Fact 26.† Stating that he ďconditionally accepts Finding of Fact number 26,Ē and that ďthe complainantís statements are contradicted by Chairman Wolson,Ē it appears that the Respondent is suggesting that the finding is somehow suspect.† Nonetheless, our review of the record reveals competent substantial evidence to support Finding of Fact 26 [T.42-43,95], and the Respondentís unnumbered exception is denied.
18.† Next, in his Exception Number 17, the Respondent excepts to Finding of Fact 28, claiming that it is ďirrelevant to the allegation of sexual harassmentĒ and that it ďproduces no competent substantial evidence to any finding of fact.Ē† As we have stated previously, the weight assigned to the evidence is within the Hearing Officerís province.† Moreover, our review of the record reveals that Finding of Fact 28 is supported by competent substantial evidence. [T.97-98,111,114,270] Therefore, on this basis, Respondentís Exception Number 17 is denied.
19.† In Exception Number 18, the Respondent excepts to Finding of Fact 29 wherein he writes that the Hearing Officer ignored certain evidence favorable to the Respondent, and that her failure to weigh the evidence of the complete record is ďunreasonable and makes a finding of competent substantial evidence incredible.Ē† The challenged finding concerns the Respondentís assertion that Ms. Billingslea had been sexually harassing him.† The Hearing Officer fulfilled her role as it is described in Heifetz, supra, and its progeny.† Moreover, the record reveals competent substantial evidence to support Finding of Fact 29 [T.98-99; Advocateís Exhibit 3, p. 66, 120], thus, Respondentís Exception Number 18 is denied.
20.† In his Exception Number 19, the Respondent excepts to Finding of Fact 30, arguing that it does not go to competent substantial evidence and that it is irrelevant.† Notwithstanding, our review of the record discloses competent substantial evidence to support Finding of Fact 30 [T.138; Advocateís Exhibit 4, p. 94-95], and on that basis, Respondentís exception is denied.
21.† In challenging Finding of Fact 32, Respondentís Exception Number 20 attempts to put a different ďspinĒ on the evidence as found by the Hearing Officer.† We are neither permitted nor inclined to join Respondent in reweighing the evidence to reach a result different than that found by the Hearing Officer.† There being competent substantial evidence to support Finding of Fact 32 [T.123-125], Respondentís Exception Number 20 is denied.
22.† Similarly, Respondentís Exception Number 21 takes issue with Finding of Fact 33, where the Hearing Officer found that the Respondent knew it was wrong for a supervisor to invite a subordinate employee into a sexual or romantic relationship.† Because there is competent substantial evidence to support this finding of fact [Advocateís Exhibit 4, p. 37], Respondentís Exception Number 21 is denied.
23.† In his last exception to a finding of fact, the Respondent excepts to Finding of Fact 34.† The evidentiary basis for this finding of fact appears to be the Joint Prehearing Stipulation, as modified at hearing [T.5], wherein the parties stipulated:† ďSince she has been at the Parole Commission, Ms. Billingslea has never received formal discipline relative to any fact or issue in this case.Ē† Notwithstanding, the Respondent now attempts to supplement this finding with additional evidence contradicting the Hearing Officerís finding.† Because there is no legal basis to consider additional evidence at this time, Respondentís Exception Number 22 is denied.
24.† In Exception Number 23, the Respondent excepts to Conclusion of Law 36, arguing that sexual harassment alone is not a violation of Chapter 112, Part III, Florida Statutes, and is an overbroad application of legislative intent.† As support for his argument, the Respondent miss-cites Blackburn v. Commission on Ethics, 589 So. 2d 431 (Fla. 1st DCA 1991).† We disagree.† As correctly stated by the Advocate in her Proposed Recommended Order, infliction of sexually-charged remarks, gestures, and actions on subordinate employees has supported findings of violations of Section 112.313(6), Florida Statutes, in a number of cases before this Commission.† In re Lawrence R. Hawkins, (Final Order No. COE 95-28, entered December 5, 1995); In re Alfred Welch, 14 F.A.L.R. 4274 (1992); In re E. ďWaltĒ Pellicer, 9 F.A.L.R. 4387 (1987); In re L. H. Lancaster, 5 F.A.L.R. 1567-A (1983); and In re Raymond Bruner, 2 F.A.L.R. 1034 (1980).† Moreover, in Garner v. Florida Commission on Ethics, 415 So. 2d 67 (Fla. 1st DCA 1982), the court specifically considered and rejected that respondentís contention that Section 112.313(6), Florida Statutes, was unconstitutionally vague, where he was alleged to have violated Section 112.313(6) by sexually harassing two subordinate female employees.† We therefore deny Respondentís Exception Number 23.
25.† Next, the Respondent excepts to Conclusion of Law 37, arguing that the standard of proof that should have been applied to him was the ďclear and convincing evidenceĒ standard rather than the ďpreponderance of the evidenceĒ standard generally used in ethics complaint proceedings.† It is the Respondentís contention that since the ďclear and convincing evidenceĒ standard is applicable in judicial discipline proceedings and in license revocation proceedings, he deserved no less.† He advanced a similar argument in his Proposed Recommended Order, which was evidently rejected by the Hearing Officer.† We find no error in the Hearing Officerís application of the ďpreponderance of the evidenceĒ standard.† This is the proper standard of proof applicable to proceedings such as these and is consistent with our precedent.† Accordingly, Respondentís Exception Number 24 is denied.
26.† In his Exception Number 25, Respondent excepts to the Recommended Orderís Conclusion of Law 38.† This paragraph merely recites the statutory language contained in Section 112.313(6), Florida Statutes.† Nonetheless, it appears that the Respondent is suggesting that sexual harassment alone does not constitute an abuse of office under Section 112.313(6), Florida Statutes.† We reject this contention.† As even the Respondentís own attorney noted in his Proposed Recommended Order (paragraph 65):
† Section 112.313(6), Fla. Stat., includes within its proscriptions sexual harassment of an employee or an attempt to obtain sexual favors from a subordinate employee.† Garner v. Commission on Ethics, 415 So. 2d 68 (Fla. 1st DCA 1982); See also Commission on Ethics v. Lancaster, 421 So. 2d 711 (Fla. 1st DCA 1982) and Commission on Ethics v. Bruner, 384 So. 2d 1339 (Fla. 1st DCA 1980).† Determinations of whether a public officialís conduct of a sexual nature is violative of Section 112.313(6), Fla. Stat., is whether such conduct was done for the purpose of seeking his own sexual gratification.† In re Lawrence R. Hawkins, Case No. 94-4715EC (DOAH Recommended Order, September 28, 1995); In re Alfred Welch, 14 FALR 4274 (Ethics 1992); In re E. Walt Pellicer, 9 FALR 4387 (Ethics 1987); In re L. H. Lancaster, 5 FALR 1567-A (Ethics 1983); and In re Raymond Bruner, 2 FALR 1034 (Ethics 1980).†
Because we perceive no error on the part of the Hearing Officer in her application of Section 112.313(6), Florida Statutes, to the facts she found, Respondentís Exception Number 25 is denied.
27.† Next, Respondent excepts to Conclusion of Law 39, wherein the Hearing Officer quoted the statutory definition of ďcorruptly.Ē In this exception, numbered 26, the Respondent apparently contends that the statutory definition of ďcorruptlyĒ is unconstitutionally vague.† As stated previously, a similar argument was considered and rejected in Garner v. Florida Commission on Ethics, supra.† We see no constitutional infirmities in Section 112.312(9), Florida Statutes, or its application in the proceeding before us.† Therefore, Respondentís Exception Number 26 is denied.
28.† In his Exception Number 27, directed at Conclusion of Law 40, the Respondent is apparently arguing that the elements of proving a violation of Section 112.313(6) are unconstitutionally vague. †We view the holding in Garner v. Florida Commission on Ethics, supra, as dispositive of this issue and, therefore, deny Respondentís Exception Number 27.
29.† In Exception Number 28, which is directed at Conclusion of Law 41, the Respondent attempts to distinguish the facts in his case from other proceedings where the public officer faced similar charges alleging a violation of Section 112.313(6), Florida Statutes.† While the Respondentís behavior may have been more subtle and less egregious than other respondents who have been before us, the Hearing Officer nonetheless concluded as ultimate findings that the Respondent attempted to use his official position as a Florida Parole Commissioner and supervisor to Ms. Billingslea to make sexually charged remarks to her for his own sexual gratification, and that he corruptly used his position to attempt to gain sexual favors from her.† Because the Hearing Officerís ultimate findings of fact are so closely tied to the credibility determinations she made, and because the underlying basis for those factual findings is supported by competent substantial evidence in the record, we find no error in Conclusion of Law 41.† Respondentís Exception Number 28 is denied.
30.† The next exception takes issue with Conclusion of Law 42,† where the Hearing Officer concluded that the Respondent attempted to use his position to make sexually charged remarks to Ms. Billingslea for his own sexual gratification.† The Respondent argues that the record contains no such remarks made by him and that the allegation itself is vague and speculative.† The remainder of Exception Number 29 is an effort on the part of the Respondent to have us reweigh the evidence in order to reach a contrary conclusion to that reached by the Hearing Officer.† In denying this exception, we note that the Hearing Officerís findings of fact clearly detail the type and tenor of Respondentís comments to his secretary.† Moreover, applying those facts to the law, the Hearing Officer concluded that the Respondentís actions violated Section 112.313(6), Florida Statutes.† Because we find no error in the Hearing Officerís legal conclusion as excepted to by Respondent, his Exception Number 29 is denied.
31.† Respondentís Exception Number 30 is directed at Conclusion of Law 43, wherein the Hearing Officer concludes that the Respondent violated Section 112.313(6), Florida Statutes.† The Respondent contends that the acts described in the complaint and the findings of fact made by the Hearing Officer do not constitute an abuse of office.† Respondent also suggests that the Commission reject the Hearing Officerís conclusions of law as being findings of fact labeled as conclusions of law.† We were reversed in Goin v. Commission on Ethics, 658 So. 2d 1131 (Fla. 1st DCA 1995), for doing precisely what Respondent is urging us to do.† As the Goin court noted, the question of whether the facts, as found in the recommended order, constitute a violation of a rule or statute, is a question of ultimate fact which the agency may not reject without adequate explanation.† Id., at 1138.† Here, where the Hearing Officerís findings of fact are supported by competent substantial evidence, and where she has, in our view, correctly applied the law to those facts, we are bound by law to adopt the Hearing Officerís recommendation as our own.† Accordingly, Respondentís Exception Number 30 is denied.
32.† In his last exception, Number 31, the Respondent excepts to the Hearing Officerís recommended penalty as being disproportionate to the actual conduct at issue.† The Hearing Officer recommended a civil penalty of $4,000, as well as public censure and reprimand.† In that the penalty the Hearing Officer recommended is within the range of penalties provided for in Section 112.317, Florida Statutes, Respondentís Exception 31 is denied.
The Findings of Fact set forth in the Recommended are approved, adopted, and incorporated herein by reference.
1.†† The Conclusions of Law set forth in the Recommended Order are approved, adopted, and incorporated herein by reference.
2.†† Accordingly, the Commission on Ethics concludes that the Respondent, as a member of the Florida Parole Commission, violated Section 112.313(6), Florida Statutes, by engaging in unwanted sexually or romantically oriented behavior toward a subordinate female employee.
We have reviewed the entire record and are familiar with our precedents involving cases of a similar nature.† Based upon that review, we believe that there are facts present which support reducing the amount of the recommended civil penalty from $4000 to $2500.† This amount is more consistent with penalties we have recommended in other cases and is appropriate to the nature and extent of the Respondentís actions.† Therefore, to that limited extent, the Hearing Officerís penalty recommendation is modified for Respondentís violation of Section 112.313(6), Florida Statutes.
In consideration of the foregoing and pursuant to Sections 112.317 and 112.324, Florida Statutes, the Commission recommends that the Governor impose a civil penalty upon the Respondent, Gary D. Latham, in the amount of $2500, and that he receive a public censure and reprimand.
ORDERED by the State of Florida Commission on Ethics meeting in public session on Thursday, March 7, 1996.
William J. Rish
THIS ORDER CONSTITUTES FINAL AGENCY ACTION. ANY PARTY WHO IS ADVERSELY AFFECTED BY THIS ORDER HAS THE RIGHT TO SEEK JUDICIAL REVIEW UNDER SECTION 120.68, FLORIDA STATUTES, BY FILING A NOTICE OF ADMINISTRATIVE APPEAL PURSUANT TO RULE 9.110, FLORIDA RULES OF APPELLATE PROCEDURE, WITH THE CLERK OF THE COMMISSION ON ETHICS, P.O. DRAWER 15709, TALLAHASSEE, FLORIDA 32317-5709 (physical address at 2822 Remington Green Circle, Suite 101); AND BY FILING A COPY OF THE NOTICE OF APPEAL ATTACHED TO WHICH IS A CONFORMED COPY OF THE ORDER DESIGNATED IN THE NOTICE OF APPEAL ACCOMPANIED BY THE APPLICABLE FILING FEES WITH THE APPROPRIATE DISTRICT COURT OF APPEAL. THE NOTICE OF ADMINISTRATIVE APPEAL MUST BE FILED WITHIN 30 DAYS OF THE DATE THIS ORDER IS RENDERED.
cc:† Mr. Gary D. Latham, Respondent
Ms. Virlindia Doss, Commissionís Advocate
Division of Administrative Hearings
Ms. Deborah K. Kearney, Complainant