BEFORE THE
STATE OF FLORIDA
COMMISSION ON
ETHICS
In re GRADY
ALBRITTON, )
)
Respondent. ) Complaint No. 87-53
)
)
_________________________)
RECOMMENDED PUBLIC
REPORT OF HEARING OFFICER
This matter was
initiated by the filing of a complaint by the Complainant, Margaret Louise
Gandy, who alleged that the Respondent, Grady Albritton, violated Section
112.313(6), Florida Statutes. Following
a preliminary investigation, the Commission on Ethics found probable cause and
ordered a public hearing on the following two issues: (1) whether the Respondent, as a member of the Escambia County
Board of County Commissioners, violated Section 112.313(6), Florida Statutes,
by exacting retribution against Louise Gandy by having her employment terminated
at University Hospital because of her failure to support him politically; and
(2) whether the Respondent violated Section 112.313(6), Florida Statutes, by
exacting retribution against Louise Gandy by taking action to see that she
would no longer be used as a part-time Escambia County emergency medical
technician because of her failure to support him politically.
A public hearing
was held on Monday, April 3, 1989, in Pensacola, Florida, before the
undersigned member of the Commission on Ethics, who served as Hearing Officer
for the Commission. Craig B. Willis,
Assistant Attorney General, appeared as Advocate for the Commission; the
Respondent, Grady Albritton, represented himself during the proceedings.
At the public
hearing the Advocate called the following witnesses: Margaret Louise Gandy, Charles William Bates, and Robert Bruce
Yelverton; pursuant to an agreement with the Respondent the depositions of
Rodney Lee Kendig and August V. Ellis were received into evidence in lieu of
their live testimony. The Respondent
testified in his own behalf. Various
exhibits presented by the parties were received in evidence.
The Advocate has
submitted proposed findings of fact and conclusions of law which have been
considered by the Hearing Officer.
Specific rulings on the proposed findings of fact are set forth in the
appendix to this order. References to
the transcript of the hearing are denoted by the letter "T", followed
by the page number; references to the depositions of Ellis and Kendig are made
by the names "Ellis" and "Kendig," respectively, followed
by the page number; references to the Advocate's and the Respondent's exhibits
are made as "AE" and "RE" respectively, followed by the exhibit
number and page number, if applicable.
From the evidence
presented at the hearing, the undersigned Hearing Officer finds as follows:
1. The Respondent, Grady Albritton, served as a
County Commissioner for Escambia County from 1969 through 1976 and then from
November 15, 1983, to November 22, 1988; he served in that position at all
times material to this complaint. T
106-07.
2. Louise Gandy was employed with the Escambia
County Emergency Medical Services Department from 1978 to 1983. T 20; AE 5.
In 1980 she was promoted to the position of Emergency Medical Services
Officer, a director-level position with the County. T 20; AE 5.
3. In 1983, Gandy resigned her position to run
for election to the Escambia County Board of County Commissioners. T 23; AE 5. Gandy and the Respondent were
among the candidates for the District Five seat on the Commission. T 24.
4. The first primary eliminated Gandy and several
other candidates. T 24. However, the Respondent and one other
candidate were included in a runoff election.
T 24, 32.
5. Prior to the runoff election, the Respondent
visited Gandy at her home seeking her political support in the upcoming
election. T 28-30, 51, 108.
6. The Respondent offered to get Gandy's job back
for her as Director of Emergency Medical Services if she would support him in
the runoff election. T 30, 51-53. When Gandy refused to agree to support the
Respondent in the election, the Respondent told her that he would be elected
and would see that she never got another County job. T 31, 52-53.
7. The Respondent denied he ever made this
threat. T 109-10. The Respondent testified that Gandy told him
that she wanted her job back. In
response, he testified, he made no promises to Gandy about employment but
rather explained to her that Rodney Kendig, the County Administrator, already
had hired someone for her previous position as Director of Emergency Medical
Services and that she would have to talk to Kendig about it. T 108-09.
However, in light of the Respondent's subsequent behavior and
statements, as testified to by a number of County employees, Gandy's testimony
is more credible than the Respondent's with regard to what transpired during
their meeting.
8. Gandy supported the Respondent's opponent in
the runoff election. T 31-32.
9. The Respondent won the election for the
District Five seat on the Board of County Commissioners. T 106.
On November 1, 1983, before the Respondent took office, Gandy obtained a
position as Community Ombudsman at University Hospital. T 32-33; AE 3.
10. University Hospital was owned by the County but
was managed by a private consulting firm in 1983. T 33-34; RE (Audit of University Hospital by County
Comptroller). Gandy was employed at the
Hospital by the management firm, not by the County. T 33-34, 65.
11. The Respondent took office as a County
Commissioner on November 15, 1983. T
106. Sometime thereafter he called the
County Administrator, Rodney Kendig, into his office and inquired about Gandy's
employment status. Kendig, 13.
12. Kendig told the Respondent that Gandy did not
work for the County but was employed by an outside management firm that
operated University Hospital. Kendig,
14. The Respondent was distressed and
unhappy about this information and told Kendig that he did not think Ms. Gandy
should be an employee of Escambia County, though he did not give a reason
why. Kendig, 14. Kendig reiterated that Gandy was not an
employee of the County. Kendig, 14.
13. Kendig subsequently discussed Gandy's
employment with the Respondent after the Respondent learned that Gandy was
working at Century Hospital, another County-owned facility managed by the
private firm. Kendig again informed the
Respondent that Gandy did not work for the County, but was functioning through
the management firm. Kendig, 18.
14. During these discussions with Kendig the
Respondent gave no reason why Gandy should not be working at the hospital, and
Kendig was not aware of anything which would make her unsuitable for employment
at the hospital. Kendig, 13-18.
15. In Escambia County, the County Administrator
was responsible for County employment matters, being solely responsible for
hiring, firing, and disciplining County personnel. Kendig, 19-20.
16. Individual members of the County Commission did
not have the authority to hire or fire County employees; nor did they have the
authority to order the County Administrator to discharge a County
employee. Kendig, 20-21.
17. Beginning in September of 1984, Gandy was
employed by Escambia County as a part-time emergency medical technician. T 25, 88; AE 4.
18. As a part-time emergency medical technician
(EMT), Gandy was called for work on a rotation basis with other relief
personnel. T 27-28, 88. Her duties included driving the ambulance,
maintaining equipment, and assisting the paramedics in patient care. T 27, 88.
19. In November of 1984, Kendig resigned his
position as County Administrator and the Assistant County Administrator,
Charles Bates, became the Acting County Administrator. T 63; Kendig, 13.
20. During the period of time Bates served as
Acting County Administrator, he had a conversation with the Respondent
regarding Gandy's part-time EMT employment with the County. T 65.
The Respondent had discovered that Gandy was working part-time for the
County and expressed his displeasure over this fact with Bates. T 67.
The Respondent told Bates that he did not want Gandy working for the
County at all. T 67, 74, 77. Bates testified that from the Respondent's
tone of voice it was quite clear that he was serious, but that he gave Bates no
reason for his statement. T 67,
77. This conversation took place in
January of 1985. T 67-68, 91-93.
21. Shortly after his conversation with the
Respondent, Bates met with Bruce Yelverton, the Director of Emergency Medical
Services for Escambia County, to talk with him about not having Gandy on call
anymore. T 67-68.
22. Bates testified that he probably would not have
stopped Gandy's part-time EMT relief work if he had not had the discussion with
the Respondent, and that he knew nothing of Gandy's job performance or personal
life which would make her unsuitable for such employment. T 69-70, 79-80.
23. Bates directed Yelverton not to contact Gandy
for EMT relief work anymore. T 36,
67-68, 92-93. As a result of this
order, Yelverton wrote the following note in the EMS shift supervisor's log
book on January 25, 1985: "Until
further notice please DO NOT schedule Louise Gandy for any relief
work. B. Y. " [Emphasis in the original.] T 89-92; AE 1. Gandy was not called for relief EMT work after January of
1985. T 36, 93-94.
24. Yelverton would not have written the order in
the log book if Acting County Administrator Bates had not instructed him not to
work Gandy anymore. T 93. Yelverton was not aware of any reason why
Gandy was not in all respects suitable to continue working as a part-time
relief EMT. T 94-95.
25. In April of 1985 the County employed August V.
Ellis as the new County Administrator and Bates resumed his position as Assistant
County Administrator. T 63; Ellis,
5. Around this time the County decided
to assume the operational responsibilities for University Hospital. Ellis, 5-6.
26. The County was seeking to cut operational
expenses for the hospital as a result of the hospital's deep financial
problems, and one of the items under review was the elimination of
non-essential personnel at the hospital.
T 70-71, 81-82; Ellis 5-6.
27. Bates testified that he was aware at that time
that Albritton did not want Gandy working for the County and that one of the
factors in eliminating personnel was how County Commissioners felt about key
people at the hospital. T 71-72, 74,
77, 84.
28. Bates and others met with each of the County
Commissioners individually and discussed a number of non-essential positions
that were being considered for elimination.
T 81-82. At the time Bates
discussed the situation with the Respondent, the position held by Gandy at the
hospital was one of the non-essential positions under consideration. T 81-82.
One of the factors that went into Bates' decision to recommend
eliminating Gandy's position was how the Respondent felt about her, but, given
the magnitude of the financial problems at the hospital, Gandy's position as
Community Ombudsman was not considered as essential as some of the others in
the direct operation of the hospital. T
71-72.
29. Six or seven key staff members, including Bates
and Ellis, met to go over the final recommendations. T 83. They reviewed a
proposed list which included Gandy's position and discussed each of the names
and positions on the list, individually.
T 83. Gandy was terminated from
her position at University Hospital on May 17, 1985 by Ellis. T 37; AE 2, AE 3. Seven or eight other hospital employees also were terminated at
that time. T 71.
30. Ellis decided to terminate Gandy based
primarily upon Bates' recommendation to him.
T 71-72; Ellis, 14-16. While
Ellis said that the hospital's economic condition was the reason for the
personnel cutbacks, he admitted that he had no particular experience with
administering a county hospital. Ellis,
13.
31. The County had an informal policy to make an
effort to relocate a County employee who was being terminated to another County
position for which that person was qualified.
Ellis, 17. No such effort was
made for Gandy at the time she was terminated from University Hospital. T 39-40.
32. The Respondent attempted to and did use his
official position as a County Commissioner in his efforts to have Louise Gandy
terminated from her employment with Escambia County as a part-time EMT and at
University Hospital, through his conversations with County employees described
above.
33. In addition, the Respondent was using his
official position when called upon by Bates to review the list of non-essential
hospital positions proposed for elimination, as were the other members of the
County Commission when they reviewed the list.
However, it was not shown by a preponderance of the credible evidence
that the Respondent was the cause of her termination at the hospital or that
the Respondent was the primary factor behind the inclusion of her name on the
list, as opposed to considerations of the financial problems of the hospital
and the nature of her responsibilities there.
T 71, 81-83.
34. The Respondent intended that Gandy not be
employed at all with the County. T 67,
74; Kendig, 13-18, 22. His motive was
to exact retribution against her for her failure to support him in the 1983
runoff election for the County Commission seat. T 30-31, 51-53.
35. The Respondent actions in having Gandy removed
from consideration as a part-time EMT were with wrongful intent, as his actions
were willful and were intended to exact retribution against Gandy for the
exercise of her lawful rights. The
Respondent acted to obtain a benefit for himself through attempting to increase
his political power by eliminating political opposition. However, given the evidence concerning the
financial problems at the hospital and the non-essential nature of Gandy's
position there, it is not found that the Respondent acted with wrongful intent
in reviewing the positions proposed for elimination at the hospital. The evidence presented on this issue was not
sufficient to conclude by a preponderance either that the Respondent intended
to exact retribution against Gandy at that time or that he approved the
elimination of her position based upon legitimate considerations.
36. The Respondent's actions in having Gandy
removed from consideration as a part-time EMT were inconsistent with the proper
performance of his public duties, because they were beyond the scope of his
authority as a County Commissioner.
However, his action in reviewing the proposed list of non-essential
hospital positions for elimination cannot be said to have been beyond the scope
of his authority as a County Commissioner, as all Commissioners were contacted
and asked to review the list of positions.
Because of this and because of the determination by others that Gandy's
position was not essential in light of the magnitude of the hospital's
financial problems, his action in reviewing the list and his role in having
Gandy's position terminated cannot be considered to have been inconsistent with
the proper performance of his public duties, any more than the actions of the
other Commissioners, regardless of the Respondent's motives in doing so.
Section 112.313(6),
Florida Statutes, provides:
MISUSE OF PUBLIC POSITION.--No public
officer or employee of an agency shall corruptly use or attempt to use his
official position or any property or resource which may be within his trust, or
perform his official duties, to secure a special privilege, benefit, or
exemption for himself or others. This
section shall not be construed to conflict with s. 104.31.
For purposes of
this statute, the term "corruptly" is defined by Section 112.312(7),
Florida Statutes, as follows:
'Corruptly' means done with a wrongful
intent and for the purpose of obtaining, or compensating or receiving
compensation for, any benefit resulting from some act or omission of a public
servant which is inconsistent with the proper performance of his public duties.
Based on the
foregoing findings of fact, the undersigned Hearing Officer recommends that the
Commission on Ethics make the following conclusions of law:
1. The Respondent, Grady Albritton, in his
capacity as County Commissioner for Escambia County, was subject to the
provisions of the Code of Ethics for Public Officers and Employees contained in
Part III of Chapter 112, Florida Statutes, and is subject to the continuing
jurisdiction of the State of Florida Commission on Ethics.
2. With respect to an alleged violation of
Section 112.313(6), Florida Statutes, the Advocate must establish by a
preponderance of the evidence that:
a. The Respondent was either a public officer or
a public employee;
b. The Respondent used or attempted to use his
official position or property or resources within his trust, or performed his
official duties.
c. The Respondent's actions were done with an
intent to secure a special privilege, benefit, or exemption for himself or
others; and
d. The Respondent's actions were done
"corruptly," that is,
(1) done with a wrongful intent, and
(2) done for the purpose of benefiting from some
act or omission which was inconsistent with the proper performance of public
duties.
3. The Respondent "used or attempted to use
his official position" as a County Commissioner for Escambia County by
using and attempting to use his influence over County employees to have Louise
Gandy terminated from her employment at University Hospital and no longer used
as a part-time relief EMT for the County.
4. The Respondent was acting to secure a special
benefit for himself through exacting retribution against Louis Gandy for her
failure to support him during the 1983 runoff election for the Board of County
Commissioners and for supporting his political opponent. In a prior complaint, In re Clyde J.
(Buddy) Wise, 6 FALR 6366 (1984), the Commission found that a county
commissioner had violated Section 112.313(6), Florida Statutes, by using his
influence over county employees to have adverse personnel action taken against
the complainants, who were county EMT's who had supported the commissioner's
opponent in an election. In that order,
the Commission stated:
The use of one's office for retribution in
this fashion constitutes a 'special benefit' for oneself, as the natural result
of such an act is to increase a public official's power and influence through
intimidating the political actions of employees who otherwise might support an
opposing candidate.
Similarly, here,
the Respondent's actions constituted and were intended to result in a
"special benefit" for himself.
5. With respect to Gandy's no longer being used
as a part-time relief EMT, the Respondent acted "corruptly" within
the meaning of the statute. His actions
were willful and intentional; they were directed at exacting retribution
against Louise Gandy for her political actions and were beyond the scope of the
Respondent's authority as a County Commissioner. Thus, his actions were done with a wrongful intent and were
inconsistent with the proper performance of his public duties.
6. However, with respect to the elimination of
Gandy's position at the hospital, the Respondent did not act
"corruptly" within the meaning of the statute. Although his actions may have been with
wrongful intent, they were not inconsistent with the proper performance of his
public duties. At the time he was
consulted (along with the other Commissioners) about which positions would be
eliminated, Gandy's position was already on the list. As found above, it cannot be said that reviewing that list was
beyond his authority. Further, as found
above, there was not sufficient persuasive evidence that Gandy's name was
placed on the list because of the Respondent's desire for retribution, as
opposed to considerations of the financial problems of the hospital and the
nature of her responsibilities there.
7. Accordingly, the Respondent has violated
Section 112.313(6), Florida Statutes, through his actions in seeking to have
Louise Gandy no longer be used as a part-time EMT for the County. However, the Respondent did not violate
Section 112.313(6), Florida Statutes, by his actions in seeking to have her
employment at University Hospital terminated.
Having concluded
that the Respondent has violated the Code of Ethics for Public Officers and
Employees, it is necessary to consider what penalty, if any, would be
appropriate for the violation. Of the
possible penalties provided in Section 112.317(1)(a), Florida Statutes, only
three are potentially applicable to a public officer who, like the Respondent,
no longer holds office: public censure
and reprimand; a civil penalty not exceeding $5,000; and restitution of any
pecuniary benefits received because of the violation committed. It has not been shown that the Respondent
received any pecuniary benefits because of the violations found here, so
restitution would not be an appropriate penalty.
In the Wise
case mentioned above, the Commission recommended that the Governor publicly
censure and reprimand the respondent and impose a civil penalty of
$1,000.00. There, the hearing officer's
recommended order noted that similar conduct had occurred in the past in this
State, but that one of the purposes of the Code of Ethics was to eliminate such
practices, which tend to make governmental employees respond to political
pressure instead of their best, informed, professional judgment. The Wise case was the Commission's
first to involve misuse of public position against subordinate employees for
political retribution and benefit; that case served to put all public officers
on notice that such conduct was no longer to be tolerated in this State.
As the Respondent
was on notice at the time of his actions that his conduct was violative of the
Code of Ethics, it is appropriate that a greater civil penalty be imposed
against him than was recommended in Wise. However, given the Respondent's age (75 at the time of the public
hearing) and the fact that he no longer holds public office, a much greater
civil penalty would appear to be too harsh. Therefore, it is recommended that the Commission recommend that
the Governor publicly censure and reprimand the Respondent and impose a civil
penalty of $2,000.00 against him.
Based on the
foregoing findings of fact and conclusions of law, the undersigned Hearing
Officer recommends that the Commission on Ethics enter a final order and public
report finding that the Respondent, Grady Albritton, has violated Section
112.313(6), Florida Statutes, through his actions in seeking to have Ms. Gandy
no longer be used as a part-time EMT for the County and that the Respondent did
not violate Section 112.313(6), Florida Statutes, through his actions regarding
Ms. Gandy's termination from employment at University Hospital. Further, the Hearing Officer recommends that
the Commission's order recommend that the Governor of the State of Florida
publicly censure and reprimand the Respondent and impose a civil penalty upon
him in the amount of $2,000.00.
ENTERED and
respectfully submitted this ____ day of February, 1990.
__________________________
Richard A. Gilbert
Hearing Officer and
Member
Commission on
Ethics
Copies furnished
to:
Mr. Grady Albritton, Respondent
Mr. Craig B. Willis, Commission Advocate
APPENDIX
The following are rulings on the proposed
findings of fact submitted by the Advocate:
1-2. Accepted.
3. Accepted,
except that the record does not support a finding that there were six
candidates in the election.
4. Accepted,
except that the record does not support a finding that there were three other
candidates eliminated in the election.
5-9. Accepted.
10. Accepted,
except that the record does not support a finding that Public Trust Corporation
was the outside consulting firm which managed the hospital.
11-21. Accepted.
22. Accepted
as found in paragraph 22; however, the record does not support a finding that
Bates had no intention of stopping Gandy's part-time work.
23-24. Accepted.
25. Accepted
first sentence; second sentence rejected on the basis of Bates testimony at T
81.
26-29. Accepted.
30. Rejected as being irrelevant to the issues
presented.
31-33. Accepted.
34. Accepted
as found in paragraphs 35 and 36; otherwise rejected for the reasons expressed
in paragraph 36.