STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

IN RE: GEORGE WALTER ANDERSON, )

)

Respondent. ) CASE NO. 92-5713EC

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RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Mary Clark, conducted a formal public hearing in the above-styled case on March 10, 1993, in Bonifay, Florida.

APPEARANCES

For the Advocate: Michael Ingram, Esquire

Craig Willis, Esquire

Department of Legal Affairs

The Capitol, Suite 1502

Tallahassee, Florida 32399

For Respondent: George Walter Anderson

Post Office Box 152

Caryville, Florida 34227

STATEMENT OF THE ISSUES

In an order dated September 18, 1991, the Florida Commission on Ethics found probable cause that George Walter Anderson, as mayor of the Town of Caryville, violated Section 112.313(6), F.S. by assisting a town councilman in having street lights put in the councilman's private trailer park at public expense. The issue in this proceeding is whether the violation occurred, and if so what penalty should be recommended.

PRELIMINARY STATEMENT

Notice of the public hearing was made after the case was referred to the Division of Administrative Hearings by the Ethics Commission.

At the hearing, the Acting Advocate presented the following witnesses: George Walter Anderson, Judy Huggins, Jack Palmer, Peggy Kirk, William S. Howell, Jr., Floyd Curry and Henry Chambers. Exhibits A-H were received in evidence.

Respondent Anderson also testified in his own behalf and presented these witnesses: Franklin Rogers, Don Henderson, Bobby Ray Batson, Capt. Eugene L. Hattaway, Owen Powell, Ora Daniels, and Luther Hampton Wittaker.

The parties waived filing the transcript or proposed recommended orders.

FINDINGS OF FACT

1. Respondent, George Walter Anderson, is the elected mayor of the Town of Caryville, Florida and held that office at the time in question.

As mayor, he serves as the chief executive officer of the municipality. He supervises town employees and executes the directives of the town council, the legislative body.

2. Henry Chambers was a Caryville town councilman in 1990 at the time in issue. He owns a trailer park variously referred to as "Henry's trailer park", "Chambers' trailer park" or "Camelia Circle". The trailer park was annexed into the city limits by Chambers' petition in 1988.

3. Sometime in early 1990, the town was having problems with flowers being taken from graves in the cemetery. The town council voted to put lights up to provide better security. Henry Chambers asked about putting lights up in his trailer park, but no official action was taken on the request. Mayor Anderson was at the meeting and remembers the discussion generally.

4. Mayor Anderson was not at an April 10, 1990, meeting when the issue about Henry Chambers' trailer park lights was discussed again. The recollection of several council members is that Mayor Anderson was directed to meet with a man from the Rural Electric Authority (REA) about placing or "spotting" the lights in the trailer park.

No one remembers a specific vote to put lights in the trailer park.

5. Peggy Kirk is employed by West Florida Electric Cooperative Association, Inc. (REA) and was working there on April 11, 1990, when she took a call from someone about the Town of Caryville requesting lights at Henry Chambers' trailer park. She does not remember who called, but thinks from her notations on the job order that it must have been Mayor Anderson. The town has an account with REA, and a job order could be placed by phone. The job order specifies two yard lights to be installed at Chambers' trailer park, with directions to talk with Mayor Anderson about where to put the lights. (Exhibit D)

6. The lights were installed by REA at Henry Chambers' trailer park sometime in mid-April. The town was initially billed for the lights and poles, but the bill was later adjusted because utility poles were already in place.

7. When the monthly bills for the lights came in, Judy Huggins, the town clerk, did not pay them because they had not been authorized. She ordinarily disbursed funds for the town, some automatically, such as power bills, when the disbursal had been approved. When a bill was questionable, she presented it to the council for approval.

8. The matter of the trailer park lights and bill was discussed at the July 10, 1990 Caryville town council regular meeting. At the meeting the town attorney, William Howell, Jr., advised that the council could vote to pay for the lights, but that Councilman Chambers should deed an easement to the town. The council voted to approve and pay the bill as soon as the town received its easement.

The power bills for the trailer park lights are now being paid by the Town of Caryville.

9. Henry Chambers has three documents which he feels are evidence of his easement to the city. The first is his petition for annexation of the property into the Caryville city limits in September 1988. He and some of the council members believe that the annexation alone made the trailer park "public property".

The second document is a March 1991 Right of Way Easement from Henry Chambers and his wife to the REA for power lines to the trailer park. And the third document is a perpetual easement from Chambers and his wife to the Town of Caryville to construct and maintain a public road, and install utilities. The easement is dated November 17, 1992.

10. According to the current town attorney, Owen Powell, Mr. Chambers had a clear intent to give an easement; if there is any problem at all, it is with the legal description.

11. Mayor Anderson has known Henry Chambers off and on since he was born. They have not been social buddies and there was no evidence of involvement with each other's campaigns. Anderson's involvement with the placement of the lights was no more nor less than what he does, and perceives he should do, in the routine course of his executive function. As confirmed by several council members, the mayor is often instructed to carry out tasks without a formal vote of the council.

12. Such was the case here. There was no formal vote; the mayor was told to work with REA on "placement" of the lights. He did, and the lights were installed.

There was substantial confusion about whether the lights were placed on private property, but there was no evidence that Mayor Anderson acted with wrongful intent in carrying out what he believed was the direction of the council.

CONCLUSIONS OF LAW

13. The Division of Administrative Hearings has jurisdiction in this proceeding, pursuant to Section 120.57(1), F.S. and Florida Commission on Ethics rule 34-5.010, F.A.C.

14. Section 112.313(6), F.S. provides:

(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.

"Corruptly" is defined in Section 112.312(7), F.S. as:

. . . 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.

15. As mayor, George Anderson is a "public officer" as defined in Section 112.313(1), F.S.

16. Placing street lights on private property at public expense may well be inconsistent with a mayor's public duties. There is no evidence, however, that Mayor Anderson acted with wrongful intent or "corruptly" to obtain a special benefit for himself or for Councilman Chambers.

RECOMMENDATION

Based on the foregoing, it is, hereby,

RECOMMENDED:

That the Commission on Ethics enter its final order and public report finding no violation of Section 112.313(6), F.S. by Respondent Anderson in this case.

DONE AND RECOMMENDED this 21st day of April, 1993, in Tallahassee, Leon County, Florida.

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MARY CLARK

Hearing Officer

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the

Division of Administrative Hearings

this 21st day of April, 1993.

COPIES FURNISHED:

Michael Ingram, Esquire

Craig Willis, Esquire

Department of Legal Affairs

The Capitol, Suite 1502

Tallahassee, Florida 32399

George Walter Anderson

Post Office Box 152

Caryville, Florida 34227

Bonnie Williams, Executive Director

Ethics Commission

Post Office Box 6

Tallahassee, Florida 32302-0006

Phil Claypool, General Counsel

Ethics Commission

Post Office 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.