STATE OF FLORIDA
DIVISION OF
ADMINISTRATIVE HEARINGS
IN RE:
JAMES C. GILES, )
) CASE
NO. 92-4942EC
Respondent, )
___________________________________)
RECOMMENDED ORDER
Pursuant to notice, the Division of Administrative Hearings, by its duly
designated Hearing Officer, Mary Clark, held a formal hearing in the above-styled
case on December 1, 1992, in Naples, Florida.
APPEARANCES
For Advocate: Craig B. Willis
Assistant Attorney General
Department of Legal Affairs
The Capitol, Suite 1502
Tallahassee, Florida 32399-1050
For Respondent: Raymond Bass,
Jr., Esquire
Bass & Chernoff
849 7th Avenue, South, Suite 200
Naples, Florida 33940-6715
STATEMENT OF THE ISSUES
On July 24, 1991, the State of Florida Commission on Ethics (EC) issued
an order finding probable cause that Respondent, James C. Giles, as clerk of
court for Collier County violated Section 112.313(6), F.S., by using his
position to influence a subordinate to recall an arrest warrant issued by a
judge.
The issue here is whether that violation occurred, and if so, what
discipline or penalty is appropriate.
PRELIMINARY STATEMENT
On August 10, 1992, the executive director of the Commission on Ethics
forwarded this case to the Division of Administrative Hearings for conduct of a
public hearing and for a recommended order.
Prior to hearing and pursuant to a prehearing order, the parties
submitted a prehearing stipulation with stipulation of facts, which facts are
adopted here. In addition, at hearing,
the Advocate presented testimony of Lorraine Stoll and Kathleen Heck. The Advocate's three exhibits were received
in evidence, including a deposition of James C. Giles.
Mr. Giles testified in his own behalf and presented two exhibits,
receipts of payment of fine and court costs, which were received into evidence.
No transcript was prepared, and both parties presented proposed
recommended orders. The findings of
fact proposed by each are addressed in the attached appendix.
FINDINGS OF FACT
The following facts are stipulated by the parties and are incorporated
herein:
1. The Respondent has been the
clerk of court for Collier County since June of 1986. The Respondent was the clerk of court at all times material to
this complaint.
2. In July of 1990, the
Respondent's wife was issued a citation for having glass bottles on the beach,
a violation of municipal ordinance No. 16.30, City of Naples.
3. On August 21, 1990, upon
failure to timely pay the fine for the violation of the above-described
ordinance or to appear in court on this date, an arrest warrant for Theresa Giles
was issued.
4. On August 30, 1990, on or
about 4:30 p.m., police officers arrived at the Respondent's residence to
arrest Ms. Giles for her failure to appear or to pay fine. The officers allowed Ms. Giles to make a
telephone call to her husband at the clerk's office.
5. The Respondent went to one of
his deputy clerks, Lorraine Stoll and discussed the situation with her. As a result, Ms. Stoll called the officers
at the Respondent's home and informed them that the bench warrant for Ms. Giles
was recalled. Ms. Giles was not taken
into custody as a result of Ms. Stoll's action.
6. These facts are derived from
the evidence presented, weighed and credited:
Respondent, James Giles was the Collier County finance director,
performing the pre-audit function for the county, when he was appointed county
clerk to finish a two year term in 1986.
He was then elected to a four year term ending in January 1993, and was
not reelected.
His prior employment experience was as a private certified public
accountant, an employee of St. Johns County, and an auditor for the State of
Florida.
7. On August 30, 1990, when
Theresa Giles called her husband, she was very upset. He had promised to pay the fine, but had forgotten. She was home alone with her young child and
her elderly mother when the deputies came to serve the warrant and arrest her.
The ticket, or "Notice to Appear" issued to Ms. Giles for her
infraction plainly provides notice that if the fine is not paid or the person
fails to appear in court at the appointed time, an arrest warrant shall be
issued. (Advocate Exhibit No. 2)
8. James Giles immediately
called his misdemeanor division and Kathleen Heck answered the phone. After he briefly explained the situation,
she went to find the supervisor, Lorraine Stoll.
As the two women were at Ms. Stoll's desk, bringing Ms. Giles' case up
on the computer, Mr. Giles appeared in person.
9. This was a very unusual
situation because the clerk rarely came back to the misdemeanor office. He was Lorraine Stoll's immediate
supervisor. He asked if there was
anything that could be done and Ms. Stoll responded that the warrant could be
recalled. Before she could explain any
further, he handed her a paper with his home phone and asked her to make the
call. Ms. Giles answered the phone and
put the deputy on; Ms. Stoll told him the warrant was recalled, and Ms. Giles
was not arrested.
10. Ms. Stoll then told Mr.
Giles that the fine and court costs had to be paid.
He said the whole thing was ridiculous, that he could not believe a
warrant could be issued for such a minor offense.
By this time it was after 5:00 p.m. and the cashier's office was closed. Giles paid the $36.50 fine the next day and
paid the $100.00 court costs on September 13, some two weeks later. (Respondent's exhibits nos. 1 and 2).
11. James Giles admits being
upset at the time that the phone call was made, but was trying to calm down
because he knew Lorraine Stoll to be excitable. He was flabbergasted that someone could be arrested for having
bottles on the beach. He denies that he
pressured Ms. Stoll, but claims he was trying to be rational and get sound
advice. He wanted her to make the call
because he felt it would "look bad" if he did.
12. James Giles did not raise
his voice but both Ms. Stoll and Ms. Heck perceived he was upset and in a
pressure situation.
Ms. Stoll had never been involved in a circumstance where the warrant
was recalled while the deputies were getting ready to make an arrest. She has worked in the misdemeanor section of
the clerk's office for eleven and a half years, as deputy clerk.
13. No ordinary citizen could
have received the advantage that the clerk and his wife received.
Judge Ellis, a Collier County judge, has a written policy providing that
a bench warrant may be set aside after payment of costs and fine. Another county judge, Judge Trettis,
requires that his office or the State's Attorney be called, and does not have a
written policy.
14. Ms. Stoll does not have the
authority to recall a warrant without following the proper procedure. This situation was out of the ordinary. She made the telephone call because her boss
told her to, and their main concern was that the warrant needed to be recalled
so Ms. Giles would not go to jail. On
the other hand, Ms. Stoll did not tell Mr. Giles that he was pressuring her,
nor did she have the opportunity to tell him the proper procedure before making
the telephone call.
15. James Giles' explanation
that he was simply seeking advice of his staff and then acting on it without
wrongful intent is disingenuous.
Whatever his actual knowledge of proper procedures for recalling a
warrant, he knew or should have known that what he was doing was not an
opportunity available to other citizens.
His experience in the clerk's office and in prior public service should
have clued him that no one else could simply get a deputy clerk to intercept an
arrest with a telephone call.
CONCLUSIONS OF LAW
16. 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.
17. 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 be not construed to
conflict with s. 104.31.
"Corruptly" is defined in Section 112.312(9), F.S.:
(9) "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.
18. James Giles was, at the time
of the incident at issue, a "public officer" as defined in Section
112.313(1), F.S., and 112.312(2), F.S.
19. Respondent Giles' intent is
determined from the circumstances surrounding the incident. In the pressure of the moment, his overweening
impulse was to save his wife from arrest.
Ignoring common sense and the experience of years of public service,
including service as an auditor, he prevailed upon his subordinate to
accomplish his goal in a manner inconsistent with established policy. His avowed ignorance of the actual policy
does not relieve his culpability. He
should have known that the warrant could not be withdrawn with a mere telephone
call. He conceded the impropriety of
his making the phone call personally, an impropriety unmitigated by the proxy
nature of its effectuation; and he scoffed at the notion that his wife's minor
offense could generate such grave legal process.
20. In this proceeding, by a
preponderance of the evidence, the advocate proved that Respondent, with
wrongful intent and in a manner inconsistent with the proper performance of his
duties, used his position to acquire a special benefit for himself and his
wife, thus constituting a violation of Section 112.313(6), F.S.
Section 112.317, F.S., provides, in pertinent part:
112.317
Penalties.--
(1) Violation of
any provision of this part,
including, but not limited to, any failure to
file any disclosures required by this part or
violation of any standard of conduct imposed
by this part, or violation of any provision of
s. 8, Art. II of the State Constitution, in
addition to any criminal penalty or other
civil penalty involved, shall pursuant to
applicable constitutional and statutory
procedures, constitute grounds for, and may be
punished by, one or more of the following:
*
* *
(d) In the case
of a former public officer or
employee who has violated a provision
applicable to former officers or employees or
whose violation occurred prior to such
officer's or employee's leaving public office
or employment:
1. Public censure
and reprimand.
2. A civil
penalty not to exceed $5,000.
3. Restitution of
any pecuniary benefits
received because of the violation committed.
21. James Giles is out of
office, defeated no doubt in part through the notoriety of the incident at
issue. The violation was serious, as it
undermines respect for public office, but he has suffered already and a token
civil penalty is recommended in lieu of the more substantial penalty suggested
by the Advocate.
RECOMMENDATION
Based on the foregoing, it is, hereby,
RECOMMENDED:
That the Commission on Ethics enter its final order finding that James
Giles violated Section 112.313(6), F.S., and recommending a civil penalty of
$250.00.
DONE AND RECOMMENDED this 27th day of January, 1993, in Tallahassee,
Leon County, Florida.
___________________________________
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 27th day of January, 1993.
APPENDIX TO RECOMMENDED
ORDER, CASE NO. 92-4942EC
The following constitute specific rulings on the findings of fact
proposed by the parties:
Advocate's Proposed Findings
1. Adopted as stipulated facts in paragraphs 1-5.
6. Adopted in substance in paragraph 9.
7. Adopted in
substance in paragraph 12.
8.-10. Adopted in substance in paragraph 10.
11. Adopted in substance in paragraph 13.
Respondent's Proposed Findings
1. A.-E. Adopted as stipulated facts in paragraphs 1-5.
2.A. Adopted in substance
in paragraphs 8 and 12.
2.B. Rejected as the sequence suggested is contrary to the
weight of evidence.
2.C. Rejected as misleading.
The evidence shows the
process was incorrect and both staff knew it was
incorrect. The
clerk was informed about the correct
procedure after the phone call.
2.D. The procedure is set out in paragraph 13. The
evidence is not clear that the fine and costs could
not have been paid the same day. By the time Mr.
Giles finished complaining, it was after 5:00.
2.E. Rejected as contrary to the greater weight of
evidence, considering the totality of Ms. Stoll's
testimony as well as Ms. Heck's.
2.F. Rejected as contrary to the greater weight of
evidence.
2.G. Rejected as immaterial.
3. Rejected as contrary to the greater weight of
evidence. More
specifically, this proposed finding
suggests that the culpability was Ms. Stoll's rather
than Respondent's.
That suggestion is supported only
by Ms. Stoll's timid admissions that she should not
have made the phone call without having received the
payment from her boss.
Ms. Stoll's acceptance of
blame does not relieve the Respondent of his
responsibility.
COPIES FURNISHED:
Craig B. Willis
Assistant Attorney General
Department of Legal Affairs
The Capitol, Suite 1502
Tallahassee, Florida 32399-1050
Raymond Bass, Jr., Esquire
Bass & Chernoff
849 7th Avenue, South - Suite 200
Naples, Florida 33940-6715
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.