STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
IN RE: CAROLYN FORD, )
)
_________________________________)
RECOMMENDED ORDER
Pursuant to notice, the Division of
Administrative Hearings, by its duly-designated Administrative Law Judge,
Carolyn S. Holifield, held a formal hearing in the above-styled case on
December 8-9, 1999, in Tallahassee, Florida.
APPEARANCES
For
Advocate: James H. Peterson, III, Esquire
Office of the Attorney General
The Capitol, Plaza Level 01
Tallahassee, Florida 32399-1050
For Respondent: Jack L. McLean, Jr., Esquire
McGuire, Woods, Battle & Booth, LLP
285 Peachtree Center Avenue, Northeast
Marquis Two Tower, Suite 220
Atlanta, Georgia 30303-1234
STATEMENT OF THE ISSUES
The issues for determination are: (1) whether Respondent, Carolyn Ford, as a
member of the Quincy City Commission, violated Section 112.3135(2)(a), Florida
Statutes, by advocating the appointment of her son for a position with the
Quincy Police Department; (2) whether Respondent violated Section 112.313(6),
Florida Statutes, by using her official position as a member of the Quincy City
Commission to attempt to obtain a job for her son with the Quincy Police
Department; and (3) if so, what penalty is appropriate.
PRELIMINARY STATEMENT
On March 12, 1999, the Florida Commission on
Ethics (Ethics Commission) issued an Order Finding Probable Cause to believe
that Respondent, Carolyn Ford, as a member of the Quincy City Commission,
violated Section 112.3135(2)(a), Florida Statutes, by advocating the
appointment of her son to a position in the Quincy Police Department. Additionally, the Ethics Commission found
that there was probable cause to believe that Respondent violated Section
112.313(6), Florida Statutes, by using her official position to attempt to
obtain a job for her son with the Quincy Police Department. On or about May 27, 1999, the case was
forwarded to the Division of Administrative Hearings for assignment to an
administrative law judge to conduct a public hearing and prepare a recommended
order.
Prior to the final hearing, the parties
submitted a Joint Prehearing Stipulation containing a number of stipulations of
fact and law. The facts to which the
parties stipulated required no proof at hearing.
At the final hearing, Advocate called four
witnesses: Celese Whiddon, Robert
Barkley, Dr. Harold Henderson, and Chief Rodney Moore. Advocate also offered three exhibits that were
received into evidence and proffered one exhibit, Advocate's Exhibit AE-4. Upon consideration of Exhibit AE-4, Section 90.610(1), Florida
Statutes, and Raydo v. State, 696 So. 2d 1225 (Fla. 1st DCA 1997),
approved in part and quashed in part, 713 So. 2d 996 (Fla. 1998), Advocate's
Exhibit AE-4 is also received into evidence and considered in this
proceeding. Also, at Advocate's
request, official recognition was taken of the City of Quincy Career Service
Rules. Respondent testified on her own
behalf and called 11 witnesses:
Glendell Russ, Celese Whiddon, Auburn Ford, Jr., Anthony Powell, Kenneth
Cowen, James Corder, Keith Dowdell, Robert Barkley, Joe Brinson, Adrienne
Allen, and Mary Corder. Respondent
offered five exhibits that were received into evidence.
A Transcript of the proceeding was filed
with the Division of Administrative Hearings on December 28, 1999. By agreement of the parties, the time set
for filing proposed recommended orders was January 31, 2000. At Advocate's request, the time for filing
proposed recommended orders was extended to February 14, 2000. Both parties timely filed Proposed Findings
of Fact and Conclusions of Law under the extended time frame.
FINDINGS OF FACT
1.
Respondent, Carolyn Ford (Respondent), currently serves as a city
commissioner for the City of Quincy, Florida, having first been elected to that
office on March 31, 1998.
2.
As a city commissioner, Respondent is subject to the requirements of
Part III, Chapter 112, Florida Statutes, the Code of Ethics for Public Officers
and Employees.
3.
Sections 2.08, 3.01, 3.02, and 9.01 of the Quincy City Charter (Quincy
City Charter or Charter) give the Quincy City Commission (City Commission or
Commission) the authority to appoint and remove the city manager, the city
attorney, and the city clerk.
4.
Under Section 3.04 of the Quincy City Charter, the city manager is given
the exclusive authority to employ or appoint certain employees and
administrative officers for the City of Quincy, including the police chief. Moreover, such employees or administrative
officers serve at the pleasure of the city manager, who may, "when he
deems necessary for the good of the services . . . suspend in writing, with or
without pay, or remove any employee under his jurisdiction . . . ."
5.
Section 204(b) of the Quincy City Charter expressly prohibits the
Commission or its members from dictating the appointment or removal of any city
employee or administrative officer whom the city manager or any of his
subordinates are empowered to appoint.
Nonetheless, that provision of the Charter permits city commissioners,
while in open or executive session, to "express their views and fully and
freely discuss with the city manager anything pertaining to the appointment and
removal of such officers and employees."
By expressing their views to the city manager regarding the appointment
or removal of city officials and employees, city commissioners may influence
the hiring and firing of such officials or employees.
6.
Shortly before or after the March 1998 election, Roger Griswald, police
chief for the City of Quincy, submitted his letter of resignation to City
Manager Kenneth Cowen. Thereafter, City
Manager Cowen appointed Robert Barkley (Barkley), who had served as Griswald's
assistant for four years, as interim police chief. Barkley served in this position for about a month.
7.
Sometime during the week of May 17, 1998, City Manager Cowen called Barkley and asked whether he
would accept the appointment as permanent police chief.
8.
On May 20, 1998, after City Manager Cowen talked to Barkley about being
appointed permanent police chief, Barkley telephoned then Quincy City
Commissioner Glenn Russ (Commissioner Russ or Russ). At Barkley's request, Commissioner Russ went to the Quincy Police
Department (police department) to meet with Barkley. During the course of the meeting, it became apparent that Barkley
had called the meeting in order to seek and gain Commissioner Russ' support of
Barkley's appointment as permanent police chief for the police department.
9.
Prior to Barkley's calling Commissioner Russ, he was well aware that
Commissioner Russ was dissatisfied with the police department because Russ had
publicly expressed his views.
10. Since
1995, Russ had been an outspoken critic of the police department, including
Barkley. Russ' criticism stemmed from
the police department's refusal to launch an independent investigation of a
1995 fatal car accident that involved a Quincy police officer and resulted in
the death of two or three people, one of whom was Russ' cousin.
11.
During the May 20, 1998, meeting, Barkley disclosed to Commissioner Russ
that City Manager Cowen wanted to appoint Barkley as permanent police
chief. Barkley then told Commissioner
Russ that he wanted to "bury the hatchet" and have Russ work with
him. However, Commissioner Russ
rejected both offers and was adamant that under no circumstances was he willing
to "bury the hatchet."
12. At
some point during the May 20, 1998, meeting between Barkley and Russ, Auburn
Ford, Jr. (Ford), the adult son of Respondent, stopped by the police department
after he saw his friend Russ' car parked there. Barkley invited Ford to come into his office. Once Ford was in the office, Barkley asked
him what it would take for "us to get along," to which Ford replied,
"Nothing." Barkley then told
Ford that City Manager Cowen was going to name Barkley police chief, and that
there could be a "second-in-command" job for Ford. This idea was nixed by Ford who stated
emphatically that he wanted to be police chief. Barkley then suggested that he should be police chief because he
had more experience in law enforcement than Ford. However, Ford's position remained unchanged and he insisted that
he wanted to be police chief, not second-in-command to Barkley.
13. Barkley
later called Anthony Powell to the May 20, 1998, meeting with Commissioner Russ
and Ford. Barkley hoped to persuade
Powell to support his appointment as the permanent police chief. Powell's support was important because he
was considered by many in the community to be the frontrunner for the Quincy
city manager position after City Manager Cowen was removed from office.
14.
Once Powell arrived at the May 20, 1998, meeting, in an effort to put
their past disputes behind them, Barkley expressed his desire to "bury the
hatchet." In response, Powell
stated only that Russ was his friend and that he did not want to get in the
middle of any conflict between Russ and Barkley. Further, Powell stated that he only wanted to be a good employee.
15. Some
time ago, when both Barkley and Powell were city employees, Barkley was
Powell's supervisor. The relationship
between Barkley and Powell became strained after, based on Barkley's
recommendation, Powell was reprimanded and suspended for a week without
pay.
16. The
May 20, 1998, meeting initiated by Barkley and held in his office, failed to
gain for him the support he wanted.
Neither Russ, Powell, nor Ford responded positively to Barkley's
overtures. Russ told Barkley, "it
was war" between them and he would not "bury the hatchet." Powell, though not as outspoken as Russ,
never agreed to support Barkley as police chief. Finally, Ford never agreed to serve as second-in-command but
rather insisted that he wanted to be police chief for the City of Quincy.
17. Russ,
Ford, and Powell were friends who sometimes socialized together. It was at a social attended by Russ, Ford,
and Powell in January 1998 that the idea of Ford's becoming police chief was
first discussed. Respondent was not
present at this event.
18. On
or about May 28, 1998, Cowen advised Barkley that he was going to appoint him
police chief and that the appointment would be announced at an official
ceremony at City Hall the following day, Friday, May 29, 1998, at 11:00 a.m.
19. Both
Cowen and Barkley knew that such an appointment might be short-lived because
the City Commission had recently directed the attorney for the city to prepare
a resolution for then City Manager Cowen's removal. Nonetheless, Cowen and Barkley were optimistic that Barkley's
appointment would not be immediately jeopardized because of their belief that
Barkley had community support.
20. On
the evening of May 28, 1998, around 9:00 p.m., Barkley was paged by his wife
and given Ford's telephone number to call.
Ford had called Barkley after learning that Barkley would be appointed
police chief the next day. Later that
evening, Barkley returned Ford's call.
Ford asked Barkley if he was going to accept the position of police
chief. In response Barkley indicated
that he was going to accept the position.
Ford then told Barkley that he should not accept the position because
"You know what's going to happen next Tuesday night," referring to
the resolution which would be presented at the City Commission meeting Tuesday
night to replace Cowen as city manager.
21. Barkley
was not sure what Ford meant by his reference that "something would
happen" by next Tuesday. Barkley
was unsure whether Ford was threatening to harm Barkley and/or his family or
whether Ford was referring to the upcoming City Commission meeting. As a result of his conversation with Ford,
Barkley became concerned for his safety and that of his family.
22. After
the telephone conversation with Ford, Barkley called his friend, then Quincy
Police Officer James Corder and expressed his concern about Ford's call. Officer Corder then contacted Captain Jim
Godwin of the Gadsden County Sheriff's Office and reported the incident. Later that night, Barkley told his wife and
Dr. Harold Henderson, Superintendent of Gadsden County Public Schools and
Barkley's best friend, about the telephone conversation with Ford.
23. At
about 8:00 a.m. the next morning, Friday, May 29, 1998, Ford was told that
Barkley had made a report to the Gadsden County Sheriff's Office, alleging that
Ford had threatened him. In an effort
to clear up Barkley's misperception of Ford's comments, Ford immediately called
Dr. Henderson and explained that he had not threatened Barkley. Ford then asked Dr. Henderson to talk to Barkley about the situation and
convey that the comments were not a threat.
Dr. Henderson called Barkley that same morning but was unable to
convince him that Ford was not a threat.
24. Later
that morning, at about 11:00 a.m., the scheduled ceremony was held at Quincy City Hall for Barkley's swearing in
as police chief. This event, attended
by a number of community leaders as well as Barkley's family and friends, was
planned to gather support for Barkley to remain in the police chief position
after the new city manager was appointed.
It was anticipated that the new city manager would be appointed within
two weeks.
25. At
the conclusion of the ceremony, Ford went to Barkley in a non-threatening
manner, congratulated Barkley and indicated that he wanted to work with
him. Ford also told Barkley that they
needed to talk and settle the matter.
Thereafter, a brief verbal confrontation ensued between Ford and Officer
Corder, who was near Barkley. At that
time, there were a number of officers around Barkley who knew about the alleged
threat and, consequently, were on heightened alert. As Ford approached Barkley, some of the officers moved toward
Ford in a threatening manner.
Thereafter, in an effort to prevent the situation from escalating, a
police officer escorted Ford from the building.
26. After
Ford was escorted from City Hall, he called his mother, Respondent, and told
her about the alleged threat and the confrontation with the police officers
after the swearing-in ceremony. In
describing the incident to Respondent, Ford stated that the police officers had
"encircled him and . . . had their hands on their guns."
27. After
the conversation with Ford, Respondent became concerned for her son's
safety. She believed that the situation
involving her son's alleged threat was simply a misunderstanding and one that
needed to be resolved immediately to prevent the matter from becoming a more
serious problem.
28. In
an effort to quell any criminal repercussions against her son which could have
resulted from Barkley's allegation and out of concern for his safety,
Respondent requested the assistance of Dr. Henderson to help to resolve the
misunderstanding between Barkley and her son.
On May 29, 1998, after learning about Ford's alleged threat and the
encounter with the police officers, Respondent called Dr. Henderson. Respondent explained the situation regarding
the alleged threat and requested that Dr. Henderson meet with her and Barkley
in order to resolve the misunderstanding.
Because Dr. Henderson considered both Respondent and Barkley friends, he
agreed to arrange and facilitate such a meeting.
29. When
Respondent arrived at Dr. Henderson's office the afternoon of May 29, 1998, she
asked that Dr. Henderson "show some leadership" and help resolve the
situation between her son, Ford, and Barkley.
During the first part of the meeting, when only Respondent and Dr.
Henderson were present, the focus of the meeting was the alleged threat. Respondent and Dr. Henderson discussed the
alleged threat and agreed that the matter was getting "out-of-hand"
and had escalated to the point where something had to be done. Further, Respondent indicated that she did
not believe her son would make such a threat and that the whole incident was a
misunderstanding.
30. Dr.
Henderson knew Ford and concurred with Respondent's opinion that Ford would not
make such a threat. However, Dr.
Henderson had been unable to convince Barkley of this in their previous two
telephone conversations regarding the matter.
31. At
some point during the May 29, 1998, meeting, Dr. Henderson called Barkley and
Respondent called Ford to join the
meeting.
32. Barkley
arrived at the meeting before Ford.
When Barkley arrived, Respondent discussed her concerns relative to the
alleged threat. Respondent's comments
to Barkley focused on the alleged threat.
In fact, she said the same things to Barkley that she had said earlier
to Dr. Henderson. That is, she did not
believe Auburn Ford would make such a threat, the incident was simply a
misunderstanding, and the matter needed to be resolved. This part of the conversation lasted about
15 or 20 minutes and concluded after Barkley explained that it was just a
misunderstanding and that the matter had been "taken care of."
33. Following
the exchange regarding the alleged threat, with only Respondent, Barkley, and
Dr. Henderson present, there was a discussion of problems with the police
department. Respondent indicated her
general dissatisfaction with the police department and her belief that the
police department was "out of control." Respondent stated that she thought her son could be a
"liaison" between the police and the Commission to help bridge the
gap and solve some the department's "perception problems." However, in making these very general
comments, Respondent never mentioned Ford's getting a job with the police
department.
34. After
the aforementioned discussion, Ford arrived at the meeting in Dr. Henderson's
office. Once Ford arrived, Respondent
wanted Barkley and Ford to discuss and resolve the issue relative to the
alleged threat. With Dr. Henderson
serving as facilitator, Barkley and Ford discussed the alleged threat. Ford explained that Barkley had simply
misinterpreted his comment.
35. Once
the issue of the alleged threat was resolved, the discussion between Barkley
and Ford shifted to the possibility of Ford's working for Barkley within the
police department. Prior to the May 29,
1998, meeting, Dr. Henderson was aware that Ford wanted to be police chief and,
as facilitator, thought this matter was one that could be worked out amicably
between Barkley and Ford. To this end,
as part of this meeting, Barkley and Ford, with Dr. Henderson as facilitator,
discussed Ford's working in the police department under Barkley.
36. At
some point during the discussion concerning the possibility of Ford's working
for the police department, Ford stated that he had the support of the city
commissioners. Because the City
Commission had five members, Ford's statement implied that he had the support
of three of the commissioners.
Respondent was not involved in this part of this discussion and there is
no indication that Respondent heard the comment.
37. Respondent
was in Dr. Henderson's office during the meeting between Barkley, Ford, and
Henderson but was on the other side of the very large office looking at a
television program. Respondent believed
that the misunderstanding could be resolved if Dr. Henderson facilitated a
discussion between Barkley and Ford.
Therefore, Respondent did not participate nor was she involved in the
discussions between Barkley and Ford, including the discussion about Barkley's
bringing Ford on board to work with the police department.
38. The
meeting at Dr. Henderson's office ended after Agent Brinson of the Florida
Department of Law Enforcement came by Dr. Henderson's office to interview
Barkley and Ford about the alleged threat.
39. When
the meeting concluded, both Ford and Dr. Henderson had the impression that
Barkley was going to hire or appoint Ford to a position with the police
department, and the details would be worked out at a meeting the following
Monday at 8:00 a.m.
40. After
the May 29, 1998, meeting, Barkley decided not to hire or appoint Ford. On Monday, May 31, 1998, Barkley called Dr.
Henderson and indicated that he was not going to hire Ford. Dr. Henderson then told Barkley that he
should call Respondent and tell her.
Barkley complied with Dr. Henderson's request and called
Respondent. When Barkley reached
Respondent, he told her that he could not do "it" and hung up the
phone.
41. Four
days after Barkley was appointed as permanent police chief of the Police
department, City Manager Cowen was replaced by Anthony Powell.
42. As
city manager, Powell exercised his independent judgment to hire and retain
those employees he felt best reflected his management style and who could best
serve the interests of the City of Quincy.
43. On
June 9, 1998, a week after Powell was appointed city manager, he decided to
replace Barkley. Two days later,
Barkley was relieved from his
responsibilities as police chief. The
reason City Manager Powell decided to remove Barkley as police chief was that
he disagreed with Barkley's management style and doubted his credibility.
44. Prior
to Barkley's separation from the police department, Respondent urged City
Manager Powell to continue Barkley's employment with the city. However, notwithstanding Respondent's
support of Barkley, Powell made it clear to Respondent that Barkley could not
continue as police chief.
45. On
June 11, 1998, City Manager Powell appointed Rodney Moore to replace Barkley as
Quincy's police chief.
46. Ford
applied for a position with the police department on June 19, 1998, three weeks
after the May 29, 1998, meeting in Dr. Henderson's office.
47.
More than a month after it was filed, Ford's application had not been
processed.
48. On
July 20, 1998, at approximately 1:40 p.m., Commissioner Russ telephoned Chief
Moore's office. Commissioner Russ was
agitated because his car had been vandalized on July 16, 1998, while it was
parked in front of City Hall. The
police officer called to the scene promised to have a written report prepared
by the next day but had not done so.
Commissioner Russ complained to Chief Moore that he had not received the
incident report regarding the vandalism of his car. He also told Chief Moore that he (Moore) "had
problems" because Ford should have been hired. After voicing his complaints, as if to explain his mood,
Commissioner Russ told Chief Moore that he (Russ) had lost his job that day and
had enough problems. Commissioner Russ
ended the conversation by telling Chief Moore that he needed to
"straighten it up" and "work it out."
49. Later,
on the afternoon of July 20, 1998, Commissioner Russ went to Respondent's
office in Gretna as a volunteer to work on her office computers. While at Respondent's office, Commissioner
Russ telephoned Chief Moore.
Commissioner Russ still sounded very upset and during this conversation,
again, complained about the police department's failure to timely process
Ford's application for a reserved officer position with the police
department. Commissioner Russ also told
Chief Moore that he had problems because Ford had not been hired.
50. Respondent
was not in her office when Commissioner
Russ was speaking on the telephone, and was unaware of the identity of
the person to whom Russ was speaking.
51.
During his telephone conversation with Chief Moore, Russ was speaking
very loudly and could be heard overheard by those in the area outside
Respondent's office. Because Commissioner
Russ' conduct was disruptive, Respondent went into her office and told Russ to
leave.
52. After
Respondent told Russ to leave her office, he told Chief Moore to explain it to
"her." Russ then either
handed the telephone receiver to Respondent or put it on the desk. Once Respondent had the telephone receiver,
Chief Moore continued giving the explanation regarding the reasons for the
delay in processing Ford's application.
The reason Chief Moore continued the explanation he was giving Russ was
that he assumed Respondent was interested in the processing of her son's
application.
53. After
listening to Chief Moore's explanation, Respondent expressed a concern about
the manner in which the application was being processed. Respondent's specific concern appeared to be
the length of time it took to process an application. However, Respondent made no attempt during this telephone
conversation or any other time to influence Chief Moore's decision to hire her
son. In fact, the credible testimony of
Chief Moore was that Respondent "never mentioned anything about hiring
him" and that Russ was the only person pushing Ford's employment.
54. At
no time during the May 29, 1998, meeting or anytime thereafter did Respondent
participate in any discussion about Ford's working with the police
department. In fact, although Ford had
worked extensively in law enforcement, Respondent was never supportive of her
son's desire to work in this area.
55. At
no time did Respondent threaten, coerce, or intimidate Barkley or anyone else
about hiring her son, Ford, to work for the police department.
56. Ford
was never a paid employee of the police department.
CONCLUSIONS OF LAW
57. The
Division of Administrative Hearings has jurisdiction over the parties and the
subject matter of this proceeding.
Section 120.57(1), Florida Statutes.
58. Section
112.322, Florida Statutes, and Rule 34-5.0015, Florida Administrative Code,
authorize the Commission on Ethics to conduct investigations and to make public
reports on complaints concerning violations of Part III, Chapter 112, Florida
Statutes (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 in the proceedings. Department of Transportation v. J.W.C.
Company, Inc., 396 So. 2d 778 (Fla. 1st DCA 1981); Balino v. Department
of Health Rehabilitative Services, 348 So. 2d 349 (Fla. 1st DCA 1977). In this proceeding, it is the Commission,
through its Advocate, that is asserting the affirmative that Respondent
violated Sections 112.3135(2)(a) and 112.313(6), Florida Statutes. Therefore, the burden of establishing by
clear and convincing evidence the elements of Respondent's violations is on the
Commission. Lantham v. Florida Commission
on Ethics, 694 So. 2d 83 (Fla. 1996), citing Department of Banking and
Finance v. Osborne Stern, 670 So. 2d 932 (Fla. 1996); Ferris v.
Turlington, 510 So. 2d 292 (Fla. 1987).
60. As
noted by the Supreme Court of Florida:
Clear
and convincing evidence requires that the evidence must be found to be
credible; the facts to which the witnesses testify must be distinctly
remembered; the testimony must be precise and explicit and the witnesses must
be lacking in confusion as to the facts in issue. The evidence must be of such weight that it produces in the mind
of the trier of fact a firm belief or conviction, without hesitancy, as to the
truth of the allegations sought to be established.
In
Re Davey, 645 So. 2d
398, 404 (Fla. 1994), quoting Slomowitz v. Walker, 429 So. 2d 797, 800
(Fla. 4th DCA 1983).
61. It
has been alleged that Respondent advocated the appointment of her son for a
position with the police department in violation of Section 112.3135(2)(a),
Florida Statutes. That section provides
in pertinent part as follows:
A
public official may not appoint, employ, promote, or advance, or advocate for
appointment, employment, promotion, or advancement, in or to a position in the
agency in which the official is serving or over which the official exercises
jurisdiction or control any individual who is a relative of the public
official.
62. The
term "public official" is defined by Section 112.3135(1)(a)6.(c),
Florida Statutes, as:
[A]n
officer, including a member of the Legislature, the Governor, and a member of
the Cabinet, or an employee of an agency in whom is vested the authority by
law, rule, or regulation, or to whom the authority has been delegated, to
appoint, employ, promote, or advance individuals or to recommend individuals
for appointment, employment, promotion, or advancement in connection with
employment in an agency, including the authority as a member of a collegial
body to vote on the appointment, employment, promotion, or advancement of
individuals.
63. A
"city" is included in the definition of the term "agency"
set forth in Section 112.3135(1)(a)5., Florida Statutes.
64. A
"son" is included in the definition of "relative" set forth
in Section 112.3135(1)(d), Florida Statutes.
65. In
order to establish a violation of Section 112.3135(2)(a), Florida Statutes, the
following elements must be proved:
1. The
Respondent must have been a public official or employee in whom was vested the
authority by law, rule or regulation, or to whom the authority had been
delegated, to appoint, employ, promote or advance individuals or to recommend
individuals for appointment, employment, promotion or advancement in connection
with employment in an agency, including the authority as a member of a
collegial body to vote on the appointment, promotion or advancement of
individuals employed by the Respondent's agency.
2. The
Respondent must have appointed, employed, promoted or advanced, or advocated
for appointment, employment, promotion or advancement, a relative of the
Respondent.
3. Such
appointment, employment, promotion or advancement, or advocacy for the
relative, must have been for a position in the agency in which the Respondent
was serving or over which the Respondent exercised jurisdiction or control.
66. With
regard to the first element under Section 112.3135(2)(a), Florida Statutes, it
has been established that Respondent, as a Commissioner for the City of Quincy,
is a public official within the meaning of this provision. Moreover, the parties have stipulated that
Respondent is subject to the requirements of Part III, Chapter 112, Florida
Statutes, the Code of Ethics for Public Officers and Employees.
67. As
to the second element, Advocate has failed to establish by clear and convincing
evidence that Respondent advocated the appointment of her son for a position in
the police department.
68.
The evidence at hearing established that Respondent did not participate
in any discussions with Barkley, Moore, or anyone else about her son's being
hired or appointed to a position with the police department. It is undisputed that Respondent met with
Barkley and Dr. Henderson on May 29, 1998.
However, the evidence clearly established that the issue Respondent
discussed with Barkley involved the alleged threat made by Ford and not
Barkley's hiring or appointing Ford to work in the police department.
69.
With regard to the May 29, 1998, meeting, the clear and convincing
evidence was that the appointment or hiring of Ford was discussed only by Dr.
Henderson, Barkley, and Ford and that when that discussion occurred, Respondent
was otherwise occupied and did not participate in the discussion. Furthermore, contrary to the assertion that
Respondent advocated the appointment of her son for a position with the police
department, the clear and convincing evidence established that the suggestion
that Ford be appointed to a position with the police department originated with
Barkley. The undisputed evidence
established that on May 20, 1998,
Barkley, unknown to Respondent, met with Ford and offered Ford the second-in-command
position with the police department after he learned that Ford wanted to be
police chief.
70.
It is further alleged that in a telephone conversation with Chief Moore,
Respondent advocated the appointment of her son for a position with the police
department. The evidence at hearing
fails to support this allegation.
71.
The clear and convincing evidence established that Respondent never
approached Chief Moore about hiring Ford.
Rather, the evidence showed that Russ telephoned Moore to criticize the
delay in processing Ford's employment application and during the course of that
conversation became upset or angry by Chief Moore's explanation and either
handed the phone to Respondent or put it on a desk. The evidence also established that after Respondent was handed
the phone or picked it up from the desk, Chief Moore continued the explanation
that he had been giving Russ regarding Ford's employment application. Moreover, the clear and convincing testimony
was that after listening to Chief Moore's comments, Respondent was concerned
about the application processing
procedures and was not advocating a position for her son. The credible testimony of Chief Moore was
that Respondent "never mentioned anything about hiring [Ford]."
72.
In light of the foregoing conclusions, that Respondent never advocated
the appointment or employment of her son for a position with the police
department, it is unnecessary to consider the third element noted in paragraph
65 above and required to prove a violation of Section 112.3135(2)(a), Florida
Statutes.
73. It
is also alleged that Respondent violated Section 112.313(6), Florida Statutes,
by using her position as a city commissioner to secure a special benefit, a
job, for her son. That section provides
in pertinent part:
MISUSE OF PUBLIC
POSITION. - No public officer, employee of an agency, or local government
attorney shall corruptly use or attempt to use his or her official position or
any property or resource which may be within his or her trust, or perform his or
her official duties, to secure a special privilege, benefit, or exemption for
himself, herself, or others.
74. The
term "corruptly" is defined by Section 112.312(9),
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 or her public duties.
75. In
order to establish a violation of Section 112.313(6), Florida Statutes, the
following elements be proved:
1. The
Respondent must have been a public officer or employee.
2.
The Respondent must have:
a) used or attempted to use her official position
or any property or resources within her trust, or
b) performed her official duties.
3.
Respondent's actions must have been taken to secure a special privilege,
benefit or exemption for herself or others.
4.
Respondent must have acted corruptly, that is, with wrongful intent and
for the purpose of benefiting herself or another person from some act or
omission which was inconsistent with the proper performance of her public
duties.
76. The
first element (that Respondent is a "public officer") required to
show a violation of Section 112.313(6), Florida Statutes, has been met. The term "public officer," as
defined in Section 112.313(1), Florida Statutes, "includes any person
elected or appointed to hold office in any agency, including any person serving
on an advisory body." Therefore,
Respondent is a public officer by virtue of the fact that she was elected as a
city commissioner for the City of Quincy, Florida, in March 1998 and currently
serves in that capacity.
77.
Based on the foregoing conclusions, the second and third elements
necessary to prove a violation of Section 112.313(6), Florida Statutes, have
not been established. Accordingly, it
is unnecessary to address the fourth element noted in paragraph 75 above.
78. The
evidence adduced at hearing failed to establish that Respondent, as a city
commissioner, advocated the appointment of the her son for a position with the
police department or used her official position to attempt to obtain a job for
her son with the police department.
RECOMMENDATION
Based upon the foregoing Findings of Fact
and Conclusions of Law, it is recommended that a final order and public report
be entered finding that Respondent Carolyn Ford, did not violate Sections
112.3135(2)(a) and 112.313(6), Florida Statutes.
DONE AND ENTERED this 17th day of April,
2000, in Tallahassee, Leon County, Florida.
CAROLYN S. HOLIFIELD
Administrative
Law Judge
Division
of Administrative Hearings
The
DeSoto Building
1230
Apalachee Parkway
Tallahassee,
Florida 32399-3060
(850)
488-9675 SUNCOM 278-9675
Fax
Filing (850) 921-6847
www.doah.state.fl.us
Filed with the Clerk of the
Division of Administrative Hearings
this 17th day of April, 2000.
COPIES FURNISHED:
James H. Peterson,
III, Esquire
Office of the
Attorney General
The Capitol, Plaza
Level 01
Tallahassee,
Florida 32399-1050
Jack L. McLean, Jr.,
Esquire
285 Peachtree Center
Avenue, Northeast
Marquis Two Tower,
Suite 2200
Sheri
L. Gerety, Complaint Coordinator and Clerk
Florida
Commission on Ethics
2822
Remington Green Circle
Post
Office Drawer 15709
Tallahassee,
Florida 32317-5709
Phil Claypool,
General Counsel
Florida Commission
on Ethics
2822 Remington Green
Circle
Post Office Drawer
15709
Tallahassee,
Florida 32317-5709
NOTICE OF RIGHT TO SUBMIT EXCEPTIONS
All parties have the
right to submit written exceptions within 15 days from the date of this
Recommended Order. Any exceptions to this Recommended Order should
be filed with the agency that will issue the final order in this case.