STATE OF FLORIDA
DIVISION OF
ADMINISTRATIVE HEARINGS
In Re STEPHEN A. WITKOWSKI, )
)
Respondent, ) CASE
NO. 91-7980EC
) COMPLAINT
NO. 90-93
)
)
)
________________________________)
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 April 14, 1992.
APPEARANCES
For Petitioner: Virlindia
Doss
Assistant Attorney General
Department of Legal Affairs
The Capitol, Suite 1601
Tallahassee, Florida 32399-1050
For Respondent: Stephen A.
Witkowski, pro se
District 1
Cudjoe Substation
Cudjoe Key, Florida 33042
STATEMENT OF THE ISSUES
Whether the Respondent, Stephen A. Witkowski, violated Section
112.313(3), Florida Statutes, by, in his official capacity, purchasing goods
from a company of which he was a director and a stockholder; and
Whether Mr. Witkowski violated Section 112.313(7), Florida Statutes, by
serving on the Board of Directors of, and owning stock in, Caribbean Computers,
Inc., a company doing business with the Monroe County Sheriff's Office, while
simultaneously being employed by the Monroe County Sheriff's Office.
PRELIMINARY STATEMENT
On or about May 25, 1990, a Complaint against the Respondent, Stephen A.
Witkowski, was filed with the Florida Commission on Ethics (hereinafter
referred to as the "Commission").
Based upon a review of the Complaint, 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 Mr. Witkowski violated Sections 112.313(3) and 112.313(7), Florida
Statutes.
Following the Commission's investigation of the allegations against Mr.
Witkowski, a Report of Investigation was released on March 29, 1991. Based upon the Complaint and the Report of
Investigation the Advocate issued an Advocate's Recommendation on May 3, 1991. The Advocate determined that there was
probable cause to believe that Mr. Witkowski had violated Sections 112.313(3)
and 112.313(7), Florida Statutes.
Based upon the Report of Investigation and the Advocate's
Recommendation, the Commission issued an Order Finding Probable Cause on June 12,
1991. The Commission ordered that a
public hearing be conducted.
By letter dated December 11, 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 Mr. Witkowski be conducted by the Division of
Administrative Hearings.
The hearing was scheduled for April 14, 1992, in Key West, Florida. On April 8, 1992, the Advocate filed a
Motion to Conduct Hearing by Telephone.
The Advocate represented that she did not intend to call any witnesses
and that Mr. Witkowski did not intend to present any testimony other than his
own. The Advocate also represented that
Mr. Witkowski had agreed that the hearing should be conducted by
telephone. An Order Granting Motion to
Conduct Hearing By Telephone was entered on April 9, 1992, and the parties were
informed by telephone that the hearing would be conducted by telephone.
The Advocate and the undersigned participated in the final hearing from
a public hearing room of the Division of Administrative Hearings in
Tallahassee, Florida. Mr. Witkowski and
the court reporter participated from the offices of the court reporter in Key
West, Florida.
Prior to the formal hearing the parties filed a pre-hearing statement
containing stipulated findings of fact.
Those facts have been accepted in this Recommended Order.
At the formal hearing the Advocate presented the deposition testimony of
Mr. Witkowski. The Advocate also
offered eight exhibits (including Mr. Witkowski's deposition) which were
accepted into evidence. Mr. Witkowski
testified on his own behalf. Mr.
Witkowski offered no exhibits.
The parties stipulated that no transcript of the hearing would be
ordered and that they would not file proposed recommended orders.
FINDINGS OF FACT
I. GENERAL.
A. The Respondent.
1. The Respondent, Stephen A. Witkowski, has been employed by the
Monroe County, Florida, Sheriff's Office (hereinafter referred to as the
"Sheriff's Office"), since June 28, 1982. [Stipulated Fact.]
2. At all times relevant to this
proceeding, Mr. Witkowski served as an "employee" subject to Sections
112.313(3) and 112.313(7), Florida Statutes.
3. Mr. Witkowski was promoted to
Captain and Jail Commander on September 14, 1988. [Stipulated Fact.]
4. Mr. Witkowski's immediate
supervisor while serving as Jail Commander was Major Michael Somberg. [Stipulated Fact.]
B. Caribbean Computers, Inc.
5. Articles of Incorporation for
Caribbean Computers, Inc., (hereinafter referred to as "Caribbean"),
were filed with the Florida Secretary of State's Office on February 16,
1988. [Stipulated Fact.]
6. On March 18, 1988, Mr.
Witkowski purchased ten shares of Caribbean and was elected to the Board of
Directors of Caribbean. [Stipulated
Fact.]
7. Mr. Witkowski purchased the
ten shares of Caribbean for ten dollars at one dollar a share. [Stipulated Fact.]
8. Mr. Witkowski made inquiry
with legal counsel for the Sheriff's Office concerning possible conflicts of
interest which might be caused by his participation in Caribbean.
C. Purchase of Equipment from
Caribbean.
9. During 1988 the Sheriff's
Office had extra funds to purchase equipment.
10. In September, 1988, four
days after being designated as Jail Commander, Mr. Witkowski requested in
writing of Major Somberg, his immediate supervisor, that the Sheriff's Office
purchase a computerized telephone answering system for the jail. [Stipulated Fact.]
11. Major Somberg had authority
to approve the requested purchase.
[Stipulated Fact.]
12. On September 20, 1988, Mr.
Witkowski completed a requisition form to purchase $2,093.95 of
computer/telephone equipment from Caribbean.
[Stipulated Fact.] The Sheriff's
Office received full value for the purchase.
13. In September, 1988, Mr.
Witkowski was aware that Caribbean had made other sales to the Sheriff's
Office.
14. The September 20, 1988,
requisition was approved and the Sheriff's Office received delivery of, and made
payment for, the equipment. [Stipulated
Fact.]
15. Between February 16, 1988,
and May 8, 1990, the Sheriff's Office purchased various other products from
Caribbean which Mr. Witkowski was not directly involved in. [Stipulated Fact.]
D. Mr. Witkowski's Disposition
of His Interest in
Caribbean.
16. In December, 1989, after an
investigation of Caribbean, Mr. Witkowski resigned from the Board of Directors
of Caribbean. In May, 1989, Mr.
Witkowski sold his stock in Caribbean.
[Stipulated Fact.]
17. Mr. Witkowski sold his
Caribbean stock for $500.00, resulting in a profit of $490.00. [Stipulated Fact.] Mr. Witkowski did not otherwise profit from his interest in
Caribbean.
18. The proceeds of the sale for
the Caribbean stock were forwarded to the former Mrs. Witkowski.
CONCLUSIONS OF LAW
A. Jurisdiction and Burden of
Proof.
19. The Division of
Administrative Hearings has jurisdiction of the parties to and the subject
matter of this proceeding. Section
120.57(1), Florida Statutes (1991).
Section 112.322, Florida Statutes, and Rule 34-5.0015, Florida
Administrative Code, authorize the Commission to conduct investigations and
make public reports on complaints concerning violations of Part III, Chapter
112, Florida Statutes (the "Code of Ethics for Public Officers and
Employees").
20. 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 Mr. Witkowski
violated Sections 112.313(3) and 112.313(7), Florida Statutes. Therefore, the burden of proving the
elements of Mr. Witkowski's alleged violations was on the Commission.
B. Mr. Witkowski's Alleged
Violation of Sections
112.313(3) and 112.313(7), Florida Statutes.
21. Section 112.313(3), Florida
Statutes, provides, in pertinent part, the following:
(3) DOING
BUSINESS WITH ONE'S AGENCY.--No
employee of an agency acting in his official
capacity as a purchasing agent, or public
officer acting in his official capacity,
shall either directly or indirectly purchase,
rent, or lease any realty, goods, or services
for his own agency from any business entity
of which he . . . is an . . . director . . .
or in which such officer or employee . . .
has a material
interest. Nor shall a public
officer or employee, acting in a private
capacity, rent, lease, or sell any realty,
goods, or services to his own agency, if he
is a state officer or employee, or to any
political subdivision or any agency thereof,
if he is serving as an officer or employee of
that political subdivision. . . .
22. Section 112.313(7), Florida
Statutes, provides, in pertinent part, the following:
(7) CONFLICTING
EMPLOYMENT OR CONTRACTUAL
RELATIONSHIP.--
(a) No public
officer or employee of an
agency shall have or hold any employment or
contractual relationship with any business
entity or any agency which is subject to the
regulation of, or is doing business with, an
agency of which he is an officer or employee,
excluding those organizations and their
officers who, when acting in their official
capacity, enter into or negotiate a collective
bargaining contract with the state or any
municipality, county, or other political
subdivision of the state; nor shall an officer
or employee of an agency have or hold any
employment or contractual relationship that
will create a continuing or frequently
recurring conflict between his private
interests and the performance of his public
duties or that would impede the full and
faithful discharge of his public duties.
. . . .
23. The term "agency"
is defined in Section 112.312(2), Florida Statutes, to mean "any state,
regional, county, local, or municipal government entity of this state, whether
executive, judicial, or legislative . . . ." The Sheriff's Office is an "agency" for purposes of
Sections 112.313(3) and 112.313(7), Florida Statutes.
24. Although the term
"employee" is not specifically defined in Section 112.313, Florida
Statutes, the evidence proved that Mr. Witkowski was employed by the Monroe
County, Florida, Sheriff's Office.
Therefore, Mr. Witkowski was an "employee" for purposes of
Sections 112.313(3) and 112.313(7), Florida Statutes.
25. The evidence also proved
that Mr. Witkowski was the director and held an ownership interest in
Caribbean, a private business doing business with the agency that employed Mr.
Witkowski.
26. Turning to the alleged
violation of Section 112.313(3), Florida Statutes, this Section prohibits
public employees who serve as purchasing agents for their employers from
purchasing from their own business interests.
It also prohibits employees, regardless of whether they are purchasing
agents, from representing their private interests by selling goods from their
own business interests to their employers.
27. The evidence in this case
proved that Mr. Witkowski was involved in the purchase by the Sheriff's Office
of equipment from a business in which he was a director. Although the evidence failed to prove that
Mr. Witkowski purchased the equipment from Caribbean in the capacity as a
purchasing agent for the Sheriff's Office, the evidence did prove that Mr.
Witkowski, as an employee of the Sheriff's Office, acted in his private
capacity to sell the equipment on behalf of Caribbean to his own agency while
he served as a director of Caribbean.
See Commission on Ethics Opinion 76-115. Mr. Witkowski violated Section 112.313(3), Florida Statutes.
28. The evidence also proved
that Mr. Witkowski violated Section 112.313(7), Florida Statutes. The Commission has previously determined
that corporate stock ownership creates a contractual relationship. Commission on Ethics Opinion 81-73 and
Commission on Ethics Opinion 79-16, citing Douglas v. State Bank of Orlando, 52
So. 593 (Fla. 1919). Therefore, Mr.
Witkowski held a contractual relationship with Caribbean while Caribbean was
doing business with the agency that employed Mr. Witkowski.
C. Penalty.
29. Section 112.317, Florida
Statutes, provides penalties which may be imposed for a violation of the Code
of Ethics for Public Officers and Employees.
Section 112.317, Florida Statutes, provides, in pertinent part, the
following:
(1) Violation
of any provision of this
part . . . shall, pursuant to applicable
constitutional and statutory procedures,
constitute grounds for, and may be punished
by, one or more of the following:
. . . .
(b) In the case
of an employee . . .:
1. Dismissal
from employment.
2. Suspension
from employment for not more than 90
days without pay.
3. Demotion.
4. Reduction in
salary level.
5. Forfeiture
of no more than one-third salary per
month for no more than 12 months.
6. A civil
penalty not exceed $5,000.
7. Restitution
of any pecuniary benefits received
because of the violation committed.
8. Public
censure and reprimand.
The Advocate, during closing
argument, recommended that a civil penalty of $500.00 be imposed on Mr.
Witkowski for each violation.
30. The Advocate agreed that Mr.
Witkowski had been very cooperative in the handling of this case, that the
Sheriff's Office had received full value for the purchases made from Caribbean
and that Mr. Witkowski had not retained the proceeds from the sale of his stock
in Caribbean. The Advocate took these
mitigating circumstances into consideration in recommending a $1,000.00 civil
penalty.
31. Mr. Witkowski contended
during his closing argument that he had asked an attorney about possible
conflicts of interest, that he had only been in charge of the jail for four
days before recommending the purchase from Caribbean and that he had not
profited from his association with Caribbean.
Mr. Witkowski did, however, profit from his association with
Caribbean. He realized a gain on the
sale of his stock of $490.00 even though he did not get to keep it.
32. All of the foregoing
mitigating circumstances have been taken into account. Based upon consideration of the nature of
the offenses and the mitigating circumstances it is concluded that Mr.
Witkowski should be required to pay a total fine of $750.00.
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, Stephen A. Witkowski, violated Sections
112.313(3) and 112.313(7), Florida Statutes, as alleged in Complaint No. 90-93. It is further
RECOMMENDED that Mr. Witkowski
be required to pay a civil penalty of $750.00.
DONE and ENTERED this __22nd__ day of April, 1992, 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 __22nd__ day of April, 1992.
COPIES FURNISHED:
Virlindia Doss
Assistant Attorney General
Department of Legal Affairs
The Capitol, Suite 101
Tallahassee, Florida 32399-1050
Stephen A. Witkowski
District 1
Cudjoe Substation
Cudjoe Key, Florida 33042
Bonnie J. Williams
Executive Director
Commission on Ethics
The Capitol, Room 2105
Post Office Box 6
Tallahassee, Florida 32302-0006