STATE OF FLORIDA
DIVISION OF
ADMINISTRATIVE HEARINGS
In Re:
PAUL MELOY, SR. DOAH Case No.
93-5984EC
_________________________/
RECOMMENDED ORDER
Pursuant to notice, the Division of Administrative Hearings, by its duly
designated Hearing Officer, Susan B. Kirkland, held a formal hearing in this
case on February 23, 1994, in Fort Myers, Florida.
APPEARANCES
For the Advocate: Stuart F.
Wilson-Patton, Esquire
Assistant General Counsel
Office of the Attorney General
The Capitol, PL-01
Tallahassee, Florida 32399-1050
For Respondent: John H.
Shearer, Jr., Esquire
Post Office Box 2196
Fort Myers, Florida 33902-2196
STATEMENT OF THE ISSUES
Whether Respondent violated Section 112.313(6), Florida Statutes, and,
if so, what penalty should be imposed.
PRELIMINARY STATEMENT
On September 10, 1992, the Florida Commission on Ethics (Commission)
entered an Order Finding Probable Cause to believe that Respondent, Paul Meloy,
Sr. (Meloy), as Fire Chief of the Alva Fire Protection and Rescue Service
District, violated Section 112.313(6), Florida Statutes, by attempting to
retain retirement benefits for himself and the assistant fire chief when
neither of them was qualified to receive such benefits. On October 22, 1993, the case was referred
to the Division of Administrative Hearings for assignment to a Hearing Officer.
At the final hearing, the parties stipulated that Meloy was not involved
in retaining retirement benefits for the assistant fire chief. Meloy requested official recognition be
taken of Section 121.0515, Florida Statutes, from 1985 to 1993. The Advocate requested that official
recognition be taken of Sections 633.35 and 943.139, Florida Statutes. The parties' requests for official
recognition were granted.
The Advocate presented the following witnesses: Paul Meloy, Sr., Wayne V. Maxwell, and
Connie Bull. The Advocate also
presented the deposition testimony of Ira Gaines. Advocate's Exhibits 1-7 were admitted into evidence. Meloy testified on his own behalf and
presented the testimony of Connie Bull and Wayne V. Maxwell. Respondent's Exhibit 1 was admitted into
evidence.
At the final hearing the parties agreed to file proposed recommended
orders within ten days of the date of the filing of the transcript. The transcript was filed on March 11,
1994. On March 21, 1994, the Advocate
filed an unopposed Motion for Extension of Time in Which to File Proposed
Recommended Order, which motion was granted, extending the time to file
proposed recommended orders until April 29, 1994. Respondent filed his proposed recommended order on March 21,
1994, and the Advocate filed his proposed recommended order on April 29,
1994. The parties' proposed findings of
fact are addressed in the Appendix to this Recommended Order.
FINDINGS OF FACT
1. At all times relevant to this
matter, Respondent, Paul Meloy, Sr. (Meloy), was Volunteer Fire Chief of the
Fire Protection and Rescue District for Alva, Florida. As such, he was a "public officer"
of an "agency" within the meaning of Sections 112.312(2) and
112.313(1), Florida Statutes.
2. Meloy helped to establish a
volunteer fire department in the rural community of Alva, Florida in 1973. Meloy was selected as the volunteer fire
chief.
3. In 1976, the Alva Fire
Protection and Rescue Service District (District) was established. The firefighting equipment and vehicles were
originally located in Meloy's garage, where he maintained an automotive repair
shop. Meloy received a fixed
reimbursement from the District each month for the use of his garage and for
repair services which he rendered for the District.
4. In approximately 1984, Meloy
took a 40-hour volunteer firefighting course and became certified as a
volunteer firefighter. Full-time
firefighters were required to complete a 280-hour firefighting course to become
certified as firefighters pursuant to Section 633.35, Florida Statutes. Meloy never took the 280-hour course and has
never been a state certified fire fighter pursuant to Section 633.35, Florida
Statutes.
5. In 1988, the District joined
the State of Florida Retirement System (FRS).
At that time the District employed four full-time firefighters and a
part-time secretary. Meloy worked part-time
as the administrator for the District, but did not draw a salary but continued
to receive remuneration in the form of the monthly reimbursement for
expenses. The full-time firefighters
were enrolled in the FRS in 1988 as special risk members, which would allow
them to retire at an earlier age than regular members of the FRS and with
greater benefits.
6. In June, 1990, Meloy was
interviewed by an investigator from the Florida Commission on Ethics
(Commission) concerning an Ethics Complaint unrelated to the complaint filed in
the instant case. Meloy told the
investigator that he was not receiving a salary from the District, but that he
was receiving reimbursement for expenses.
Additionally, he told the investigator that he was not certified to be a
full-time professional firefighter.
7. In 1990, Connie Bull, was
employed as a part-time secretary for the District. Until the District received a letter from the Commission
explaining that part-time employees should be enrolled in the retirement
system, neither Ms. Bull nor Meloy was aware that part-time employees filling
established positions were to be enrolled in the retirement system from the
date of their employment.
8. Ms. Bull called the Division
of Retirement (Division) which is the agency responsible for administering the
FRS. She talked with Ira Gaines
concerning the requirement for the enrollment of part-time employees. Ira Gaines is the retirement services
representative with the Division who is responsible for determining eligibility
for members in the special risk plan of the FRS. Neither Ms. Bull nor Mr.
Gaines recalls any discussion they may have had concerning certification
requirements for enrollment in the special risk class.
9. Ms. Bull obtained enrollment
forms from the Division. She and Meloy
filled out and signed the enrollment forms.
The form Ms. Bull used for her enrollment was for regular
membership. The form used by Meloy was
for enrollment in the special risk plan.
10. On September 22, 1990, Meloy
represented on his enrollment form that he was a firefighter certified, or
required to be certified, by the Bureau of Fire and Training and that he was
the supervisor or command officer of special risk members whose duties included
on the scene fighting of fires.
Additionally, Meloy in his capacity as fire chief certified that his
position meets the criteria for special risk membership in accordance with
Section 121.0515, Florida Statutes, and Florida Retirement System Rules, and he
was certified or required to be certified in compliance with Section 943.14 or
Section 633.35, Florida Statutes. When
he was completing the enrollment form, he told Ms. Bull that he knew that he
was not certified.
11. Meloy testified in his
defense that when he signed the application form that he knew that he was not a
certified full-time firefighter and that he knew that special risk members were
required to be certified. Meloy stated
that by signing the application he was acknowledging that special risk members
were required to be certified not that he was certified. Having judged the credibility of Meloy, I
find that Meloy's testimony is not credible.
12. Ms. Bull sent the executed
enrollment forms to the Division on October 17, 1990, with a cover letter
stating that she and Meloy had worked for the District for some time on a part-time
basis, but were unaware that as part-time employees they should have previously
have been enrolled in the retirement system.
13. In either 1990 or 1991,
after he had executed the enrollment form, Meloy began receiving a salary from
the District instead of reimbursement for expenses.
14. In January, 1991, the
District purchased back retirement benefits for Meloy from August, 1985 through
June, 1988 for $4,207.97.
15. Sometime after the
enrollment forms were submitted and Meloy had been enrolled in the FRS, Ira
Gaines and Meloy discussed Meloy's certification. Meloy told Mr. Gaines that he had taken a course which certified
him as a firefighter. Meloy did not
tell Mr. Gaines that he was a firefighter certified pursuant to Section
633.35. Meloy sent Mr. Gaines a copy of
a letter dated September 16, 1991, from the Department of Insurance which
stated that Meloy had held a Certificate of Competency entitled Volunteer Basic
since July 11, 1984.
16. Meloy did not qualify for special risk membership in the FRS.
17. In May, 1992, Meloy was
interviewed by an investigator for the Commission concerning the allegations in
the Ethics Compliant which had been filed against Meloy. Meloy told the investigator that he knew
that the enrollment application which he signed required that the employee had
to have taken the 280-hour course to be eligible for the special risk class.
18. By letter dated June 29,
1992, the Division notified Meloy that his membership in the FRS and the
Florida Retirement Special Risk Class was being terminated. The grounds for termination were that Meloy
had been receiving payments for expenses and not compensation and that he was
not certified in compliance with Section 633.35, Florida Statutes. Meloy did not appeal the Division's
decision.
19. If Meloy had been allowed to
remain as a special risk member in the FRS, he would have been eligible to draw
annually at least $2,024.92 in special risk benefits beginning as early as
August, 1995.
20. There was no evidence
presented that established that Mr. Meloy had anything to do with Assistant
Volunteer Fire Chief Brent Golden's application, membership, or retention of
any benefits from the FRS and the parties so stipulated.
CONCLUSIONS OF LAW
21. The Division of
Administrative Hearings has jurisdiction over the parties to and the subject
matter of this proceeding. Section
120.57(1), Florida Statutes.
22. 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).
23. The burden of proof, absent
a statutory directive to the contrary, is on the party asserting the
affirmative of the issue of the proceeding.
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 349 (Fla. 1st DCA 1977). In
this proceeding it is the Commission, through the Advocate, that is asserting
the affirmative: that Meloy violated
Section 112.313(6), Florida Statutes.
Therefore, the burden of establishing by a preponderance of the evidence
the elements of Meloy's alleged violation is on the Commission.
24. Section 112.313(6), Florida
Statutes, provides:
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.
25. Section 112.312(9), Florida
Statutes, defines "corruptly" 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.
26. In order for it to be
concluded that Meloy violated Section 112.313(6), Florida Statutes, the
Advocate must establish the following elements:
a. Meloy must be
either a public officer or
public employee.
b. Meloy must
have used or attempted to use,
his official position or property or
resources within his trust, or performed his
official duties.
c. Meloy's
actions in element b. must have
been done with an intent to secure a special
privilege, benefit, or exemption for himself
or others.
d. Meloy's
actions and intent in elements
b. and c. must have been done corruptly, i.e.,
a. Done with a wrongful intent, and
b. Done for
the purpose of benefiting
from some act or omission which is inconsistent
with the proper performance of public duties.
27. The parties have stipulated
that Meloy was Volunteer Fire Chief of the Fire Protection and Rescue District
for Alva, Florida and, as such, was a public officer of an agency within the
meaning of Sections 112.312(2) and 112.313(1), Florida Statutes.
28. In executing the enrollment
form as fire chief, the employer, and certifying that his position as employee
met the criteria for special risk membership in accordance with Section
121.0515, Florida Statutes, and the Florida Retirement Rules and that he, as
the employee, was certified or required to be certified, in compliance with
Section 943.14 or Section 633.35, Florida Statutes, Meloy was attempting to use
his official position as fire chief to obtain for himself a special benefit,
special risk membership in the FRS.
29. The Advocate has established
that Meloy corruptly attempted to use his position as volunteer fire chief to
secure special risk membership in the FRS for himself. He knew that he was not certified pursuant
to Section 633.35, Florida Statutes, when he executed the enrollment form
because he had not taken the 280-hour firefighter course and he knew that his
position either as fire chief or as administrator for the District did not
require that he take the 280-hour firefighter course that was required for
certification pursuant to Section 633.35.
Additionally, he knew that to be eligible for enrollment in the special
risk plan that the employee was required to have taken the 280-hour firefighter
course. Based on Meloy's knowledge at
the time he executed the enrollment form as fire chief and the plain reading of
the certification which he signed, the reasonable inference is that he
intentionally certified that he was entitled to special risk membership when he
knew that he was not so entitled in order to become enrolled as a special risk
member of the FRS.
RECOMMENDATION
Based on the foregoing Findings of Fact and Conclusions of Law, it is
RECOMMENDED that a Final Order and Public Report be entered finding that
Paul Meloy, Sr. violated Section 112.313(6), Florida Statutes, as it relates to
the allegations concerning his retirement benefits but not as to the retirement
benefits of the Assistant Fire Chief, imposing a civil penalty of $2,024.92,
and issuing a public censure and reprimand.
DONE AND ENTERED this 8th day of July, 1994, in Tallahassee, Leon
County, Florida.
___________________________________
SUSAN B. KIRKLAND
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 8th day of July, 1994.
APPENDIX TO RECOMMENDED
ORDER, CASE NO. 93-5984EC
To comply with the requirements of Section 120.59(2), Florida Statutes
(1993), the following rulings are made on the parties' proposed findings of
fact:
Advocate's Proposed Findings of Fact
1. Paragraph 1: Accepted.
2. Paragraph 2-4: Accepted in substance.
3. Paragraph 5: Accepted.
4. Paragraphs 6-7: Rejected as unnecessary detail.
5. Paragraphs 8-12: Accepted in substance.
6. Paragraph 13: The first, third,
and fourth sentences are accepted in
substance. The second sentence is
rejected as not supported by the greater
weight of the evidence. In
practice both Mr. Tiner and Meloy
supervised the firefighters during on-the-scene fighting of fires. The last sentence is rejected as
irrelevant to the extent that Meloy listed all the duties that he was actually performing for
the fire department.
7. Paragraph 14: Accepted in substance.
8. Paragraph 15: Rejected as irrelevant. There was no evidence presented to show that Meloy knew that the Commissioners and not he should have
executed the enrollment form on behalf
of the employer.
9. Paragraphs 16-17: Rejected as subordinate to the facts actually found.
10. Paragraph 18: Rejected to the extent that it implies that
Meloy took no steps to seek help from the
Division. He did direct Ms. Bull
to call the Division which she did.
11. Paragraph 19: Rejected as subordinate to the facts actually found.
12. Paragraphs 21-22: Accepted in substance.
13. Paragraph 23: Accepted in substance except as to the amount.
13. Paragraphs 24-25: Rejected as constituting argument.
Respondent's Proposed Findings of
Fact
1. Paragraph 1: Rejected as constituting a conclusion
of law.
COPIES FURNISHED:
Stuart F. Wilson-Patton
Advocate For the Florida
Commission on Ethics
Office of the Attorney General
The Capitol, PL-01
Tallahassee, Florida 32399-1050
John H. Shearer, Jr., P.A.
Post Office Box 2196
Fort Myers, Florida 33902-2196
Bonnie Williams
Executive Director
Florida Commission On Ethics
Post Office Drawer 15709
Tallahassee, Florida 32317-5709
Phil Claypool, Esquire
General Counsel
Ethics Commission
2822 Remington Green Circle, Suite
101
Post Office Drawer 15709
Tallahasee, Florida 32317-5709
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 ten 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.