90-89 Recommended Order, In re PAGE LAMAR FORD

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

IN RE: PAGE LAMAR FORD, )

)

Respondent. ) CASE NO. 91-5187EC

) COMPLAINT NO. 90-89

_________________________________)

RECOMMENDED ORDER

Pursuant to written notice, a formal hearing was held in this case before Larry J. Sartin, a duly designated Hearing Officer of the Division of Administrative Hearings, on October 18, 1991, in Bristol, Florida.

APPEARANCES

For Petitioner: Virlindia Doss

Assistant Attorney General

Advocate for the Commission on Ethics

Department of Legal Affairs

The Capitol, Suite 1601

Tallahassee, Florida 32399-1050

For Respondent: Page Lamar Ford, pro se

Post Office Box 146

Bristol, Florida 32321

STATEMENT OF THE ISSUES

Whether the Respondent, Page Lamar Ford, violated Section 112.3145, Florida Statutes, by failing to list real property owned by the Respondent on financial disclosure forms filed by the Respondent in 1986, 1987, 1988 and 1989?

On or about May 18, 1990, a Complaint was filed with the Florida Commission on Ethics (hereinafter referred to as the "Commission"). The Complaint was filed by Laban Bontrager and contained allegations of misconduct by Page Lamar Ford, the Respondent in this case. An amended Complaint was filed by Mr. Bontrager on August 19, 1990. Based upon a review of the Complaint and the amended Complaint against the Respondent, the Commission issued a Determination of Investigative Jurisdiction and Order to Investigate on September 10, 1990, ordering the staff of the Commission to conduct a preliminary investigation into whether the Respondent violated Sections 112.313(6), 112.3143(3) and 112.3145(3), Florida Statutes.

Following the Commission's investigation of the allegations against the Respondent, a Report of Investigation was released on January 31, 1991. Based upon the Complaint and the Report of Investigation the Advocate for the Commission issued an Advocate's Recommendation on March 15, 1991. The Advocate determined that there was probable cause to believe that the Respondent had violated Section 112.3145, Florida Statutes. The Advocate also determined that there was no probable cause to believe that the Respondent violated Sections 112.313(6) and 112.3143(3), Florida Statutes.

Based upon the Report of Investigation and the Advocate's Recommendation, the Commission issued an Order Finding Probable Cause on April 24, 1991, accepting the recommendation of the Advocate. The Commission ordered that a public hearing be conducted.

By letter dated August 16, 1991, the Commission referred this matter to the Division of Administrative Hearings and, in accordance with Rules 34-5.010 and 34-5.014, Florida Administrative Code, requested that the public hearing on the Complaint against the Respondent be conducted by the Division of Administrative Hearings.

Prior to the formal hearing the parties filed a Prehearing Statement. The parties stipulated to certain facts in the Prehearing Statement. Those facts have been accepted in this Recommended Order.

At the formal hearing the Advocate called no witnesses and offered no exhibits. The Respondent testified on his own behalf. The Respondent did not offer any exhibits into evidence.

The parties stipulated that they would not order a transcript or file proposed recommended orders.

FINDINGS OF FACT

1. The Respondent, Page Lamar Ford, served as a City Commissioner in Bristol, Liberty County, Florida, during all times material to the allegations in the Complaint. (Stipulated Fact).

2. At all times relevant to this proceeding, the Respondent served as a local officer.

3. For the years 1986, 1987, 1988 and 1989, the Respondent owned several parcels of real property in Liberty County which he failed to list on his financial disclosure forms.

4. The Respondent's failure to report the real property on his financial disclosure forms was caused by mistake. The weight of the evidence failed to prove that the Respondent failed to report the real property intentionally.

5. The Respondent was paid $1.00 a year to serve on the Bristol City Commission.

6. At a meeting of the Bristol City Commission, during which a purchase of real property close to the Respondent's real property was agreed upon, the Respondent disclosed the ownership of his real property.

7. After the Complaint was filed alleging the failure of the Respondent to report the real property he owned, the Respondent filed financial disclosure forms for the years at issue.

CONCLUSIONS OF LAW

A. Jurisdiction and Burden of Proof.

8. The Division of Administrative Hearings has jurisdiction of the parties to and the subject matter of this proceeding. Section 120.57(1), Florida Statutes (1989).

9. The burden of proof, absent a statutory directive to the contrary, is on the party asserting the affirmative of the issue of the proceeding. Antel v. Department of Professional Regulation, 522 So.2d 1056 (Fla. 5th DCA 1988); Department of Transportation v. J.W.C. Co., Inc. 396 So.2d 778 (Fla. 1st DCA 1981); and Balino v. Department of Health and Rehabilitative Services, 348 So.2d 249 (Fla. 1st DCA 1977). In this proceeding it is the Commission, through the Advocate, that is asserting the affirmative: that the Respondent violated Section 112.3145, Florida Statutes. Therefore, the burden of proving the elements of the Respondent's alleged violation was on the Commission.

B. The Respondent's Alleged Violation of Section 112.3145, Florida Statutes.

10. Section 112.3145, Florida Statutes, provides, in pertinent part, that "each state or local officer . . . shall file a statement of financial interests not later than July 1 of each year." The financial interests information which is to be reported includes the following:

The location or description of real

property in this state, except for

residences and vacation homes, owned

directly or indirectly by the person

reporting, when such person owns in

excess of 5 percent of the value of such

real property, and a general description

of any intangible personal property

worth in excess of 10 percent of such

person's total assets. For the purposes

of this paragraph, indirect ownership

does not include ownership by a spouse

or minor child.

Section 112.3145(3) (c), Florida Statutes.

11. A "local officer" for purposes of Section 112.3145, Florida Statutes, is defined to include "[e]very person who is elected to office in any political subdivision of the state . ." Section 112.3145(1)(a)1, Florida Statutes. The evidence proved that the Respondent was a local officer within the definition of Section 112.3145(1)(a)1, Florida Statutes.

12. The evidence also proved, and the Respondent has admitted, that the Respondent owned real property that should have been, but was not, disclosed on his financial disclosure forms for the years at issue in this proceeding. Although the evidence failed to prove any wrongful intent on the part of the Respondent, such proof is not required. Even a simple mistake, such as the one committed by the Respondent in this case, constitutes a failure to comply with Section 112.3145, Florida Statutes.

13. Based upon the foregoing, it is concluded that the Respondent violated Section 112.3145, Florida Statutes.

C. Penalty.

14. Section 112.317, Florida Statutes, provides a wide range of penalties which the Commission may impose upon an person who violates the Code of Ethics for Public Officers and Employees, including a violation of Section 112.3145, Florida Statutes. The Respondent has readily admitted that he has failed to comply with the law governing the disclosure of financial interests. The violation should not be ignored and some penalty should be imposed upon the Respondent. Based upon the fact that the Respondent was only paid $1.00 a year as a public officer and the lack of evidence that the Respondent intentionally failed to report his real property ownership, it is concluded that a civil penalty of $100.00 should be imposed on the Respondent.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is

RECOMMENDED that the Commission on Ethics enter a Final Order and Public Report finding that the Respondent, Page Lamar Ford, violated Section 3145, Florida Statutes, as alleged in Complaint No. 90-89, and imposing a civil penalty of $100.00 on the Respondent for such violation.

DONE and ENTERED this 15th day of November, 1991, in Tallahassee, Florida.

___________________________

LARRY J. SARTIN

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 15th day of November, 1991.

COPIES FURNISHED:

Virlindia Doss

Assistant Attorney General

Department of Legal Affairs

The Capitol, Suite 1601

Tallahassee, Florida 32399-1050

Page Lamar Ford

Post Office Box 146

Bristol, Florida 32321

Bonnie J. Williams

Executive Director

Commission on Ethics

The Capitol, Room 2105

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.