STATE OF FLORIDA
DIVISION OF
ADMINISTRATIVE HEARINGS
IN RE:
JAN PARTIN, )
) CASE NO. 92-7318EC
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 July 8, 1993, in Winter Haven, Florida.
APPEARANCES
For the Advocate, Claire D.
Dryfuss, Esquire
Florida Commission on Acting
Advocate
Ethics: Commission
on Ethics
Office of the Attorney General
The Capitol, PL-01
Tallahassee, Florida 32399-1050
For Respondent: Robert H.
Grizzard, II, Esquire
Post Office Box 992
Lakeland, Florida 33802-0992
STATEMENT OF THE ISSUES
On December 6, 1991 the Florida Commission on Ethics found probable
cause that Jan Partin, while employed as Administrative Assistant to the Winter
Haven Housing Authority's Executive Director violated section 112.313(6), F.S.
by coercing a Mr. and Mrs. Carrerou into making a loan to a potential witness
in a federal court trial involving the Housing Authority and by representing to
the Carrerous that the Housing Authority would repay the loan.
The issue for disposition in this proceeding is whether that violation
occurred, and if so, what penalty is appropriate.
PRELIMINARY STATEMENT
The order finding probable cause was forwarded to the Division of
Administrative Hearings on December 7, 1992 with a request to conduct a public
hearing and provide a recommended order to the Commission.
After consultation with the parties, the hearing was scheduled for April
22, 1993. It was cancelled, at the
parties' request, when settlement appeared likely, but the hearing was reset
when the informal resolution did not materialize. The hearing then proceeded as set forth above.
At the hearing the Acting Advocate presented testimony of the
following: Timothy Keaton, Oswald
Carrerou, Leah Carrerou and Katherine Reddick.
The following Advocate's exhibits were received in evidence: #P-1, #P-4, #P-6 through #P-10.
Respondent testified in her own behalf and presented the testimony of
Katherine Reddick, Sylvia Ibanez, James Lear, Herbert Lopez and Lovett
Johnson. Respondent's exhibits #1, #2,
#3, #4, #13 and #19 were received in evidence.
The transcript was filed on August 2, 1993 and the Acting Advocate filed
a proposed recommended order on September 2, 1993. Her proposed findings of fact are substantially adopted here.
FINDINGS OF FACT
1. Respondent, Jan Partin
(Partin), during all times relevant to this proceeding, was the administrative
assistant to the executive director of the Winter Haven Housing Authority, in
Winter Haven, Florida. In that capacity
she exercised responsible administrative, supervisory and technical management
functions in assisting the executive director.
In the absence of the executive director, she was totally responsible
for the operation of the housing authority.
2. Oswald and Leah Carrerou,
husband and wife, owned rental property in Winter Haven, and in 1989 and 1990
were landlords in the housing authority's Section 8 program, a program funded
by the U.S. Department of Housing and Urban Development (HUD) to provide rental
assistance to eligible tenants. The
Carrerous were the second landlords brought into the authority's program, and
in late 1989, early 1990, had more tenants than other landlords in the program.
3. As Section 8 landlords, the
Carrerous received monthly checks from the housing authority. In January and February 1990, those checks
were $3,512.00 and $3,810.00, respectively, representing approximately sixty
percent of the Carrerou's total rental income at that time.
4. The Carrerou's primary staff
contact with the housing authority with regard to the Section 8 Program was Jan
Partin. This included contacts
regarding tenants, leases, landlord/housing authority contracts, and rental
payments. As it was a new program, the
contacts were frequent, several times a week, by telephone and in person at the
housing authority office.
5. As executive director, Ash
Ahmad was the formal administrator of the Section 8 Program. Ahmad trained Partin and another staff
person in the program and Partin's contacts with the Carrerous were part of her
routine functions. The Carrerou's
perception that she had some control over their continued participation and
receipt of rents was reasonable, even if not technically nor legally correct.
6. In early 1990, Partin called
Oswald Carrerou and asked if he would consider making a loan to a person who
was very important to the housing authority, a witness in a federal case
involving a tenant. Partin said the
person needed money to pay his lawyer in a child custody dispute. Carrerou was concerned about the appearance
and legitimacy of the transaction. He
was not in the business of making personal loans, except in the context of his
buying and selling real estate, in which cases the loans were secured by a
mortgage. When he asked about
collateral, Partin said something about a CD coming due and that he would be
paid off then. Partin suggested that a
note would be prepared, but did not say who would sign the note. Reluctantly, and with the concern that he
had little choice, given his financial circumstances and reliance on the
Section 8 rents, Carrerou agreed to the loan.
7. Timothy Keaton was the person
who was to receive the loan. Keaton met
Partin in 1988 when his girlfriend, April Marshall, was living in a Winter
Haven Housing Authority housing project.
Keaton lived with Marshall off and on without being included in the
lease; the couple had two children together.
Keaton and Partin developed a close personal relationship and they began
dating; Partin loaned and gave him money.
Partin became involved in a custody dispute regarding the Keaton/Marshall
children, a case which also involved the Department of Health and
Rehabilitative Services. Partin urged
Keaton to hire a lawyer to get custody away from Marshall and she recommended a
lawyer to him. This was the lawyer to
whom the loan money was to be paid.
8. At the same time that the custody
dispute was pending, the housing authority was sued in federal court by
Keaton's sometime girlfriend, Marshall, and other plaintiffs who were
contesting their evictions. Partin was
the legal liaison for the housing authority and worked closely with Sylvia
Ibanez, the attorney for the housing authority in the Marshall lawsuit and
other litigation.
9. Keaton agreed to testify
against Marshall and on behalf of the housing authority in the federal
case. He gave a deposition attended by
Partin, Attorney Ibanez and Marshall's attorney. This was around the same time that Partin sought the loan to pay
Keaton's lawyer.
10. Keaton and another man
appeared at Carrerou's office with a note signed by Keaton's mother, Oreatha K.
Ogletree, dated February 16, 1990. The
note stated that she would be responsible for the loan of $1200 to her son, and
that she would make the payment in March 1990, when her CD matured. After assuring himself that the lawyer was
indeed representing Keaton, and that Oreatha K. Ogletree was Timothy Keaton's
mother, Oswald Carrerou gave Keaton a check for $1200 payable to Robert Doyel,
the attorney. The check is dated
February 16, 1990. Carrerou had never
met nor seen Keaton before that day.
Because of cash flow problems, Carrerou borrowed the $1200 from his
wife's VISA credit card account at 18 percent interest in order to make the
loan to Keaton.
11. Keaton did not sign the
note, although there was a space on the note for his signature and social
security number. Moreover, instead of
taking the check to the lawyer's office that afternoon as was arranged, he tore
it into three pieces. He did not want
to be responsible for the money and did not want his mother to be responsible
either.
12. Sometime later, but before
the end of February 1990, Partin called Leah Carrerou and told her that the
Keaton children had spilled something on the check or had torn it, and that
another check was needed immediately.
Keaton had an appointment with the lawyer that afternoon and the lawyer
would not see him without the check.
Partin said she would send someone over to pick it up, and someone from
the Housing Authority did come to get the check from Mrs. Carrerou. Later, Mrs. Carrerou realized her check was
written on the wrong account and, after speaking to the lawyer's secretary for
approval, she mailed a substitute check for $1200, dated February 28, 1990, to
Robert Doyel.
13. The Carrerous were never
repaid their $1200. After the end of
thirty days, Leah Carrerou called Partin, who assured that she would get her
money. After about five or six
subsequent similar calls, the Carrerous sued Oreatha Ogletree on the note. A final judgement in favor of Oswald
Carrerou was entered on July 9, 1990, by Polk County Judge, Harvey A.
Kornstein. Later, Oswald Carrerou filed
a satisfaction of that judgement when he learned that Timothy Keaton had torn
up his original check to avoid binding himself or his mother. Keaton believed that Jan Partin had come up
with the money for the lawyer. Keaton
did not know that Partin had obtained another check from the Carrerous.
14. The federal case was
eventually settled without the need for Keaton to testify at a trial. Meanwhile, Keaton got back together with
April Marshall and appeared at the custody hearing on her side.
15. Commonly, and within the
Housing Authority's function of providing services to tenants or other members
of the public, housing authority staff make referrals to other social services
agencies or resources. The referral of
Timothy Keaton to a landlord in a housing authority program was not within the
scope of that appropriate function. The
greater weight of evidence established that it was Partin's romantic
relationship with Keaton, rather than any eleemosynary impulse that motivated
her misguided efforts on his behalf.
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. Jan Partin was, at the time
of the incident at issue, an "employee of an agency" as provided in
sections 112.313(6), F.S., and 112.312(2), F.S.
19. The greater weight of
credible evidence established that Jan Partin used her official position in
order to obtain a loan from the Carrerous to benefit a man with whom she was
intimately involved. That he was also a
witness for the housing authority provided the excuse, but not the lawful
justification, for her pressure on the Carrerous. Her wrongful intent is determined from the circumstances surrounding
her relationship with Keaton and the Carrerou's relationship with the housing
authority. The Acting Advocate proved
the first violation of section 112.313(6), F.S., by Jan Partin.
20. The order finding probable
cause states also that Partin represented to the Carrerous that the Housing
Authority would repay the loan. That
was not proven. At most, the evidence
established that Jan Partin kept assuring the landlords that the loan would be
repaid. The Carrerous could have
inferred that the housing authority itself was going to provide the payment,
but no evidence established that Jan Partin made that specific representation.
21. The acting advocate has
suggested a penalty of restitution and a fine of $5000 for each violation. Section 112.317, F.S., establishes the types
of penalties which may be imposed for violations of the code of ethics, which
penalties vary in some regard, depending on whether the individual is still
employed or is a public officer. The
evidence here did not establish Ms. Partin's current status, but only her
status during the relevant period. The
penalties suggested by the Acting Advocate are appropriate under section
112.317, F.S., for both existing and former officers or employees and are,
therefore, incorporated in this recommendation.
RECOMMENDATION
Based on the foregoing, it is, hereby,
RECOMMENDED:
That the Commission on Ethics enter its final order finding that Jan
Partin violated section 112.313(6), F.S., and recommending restitution in the
amount of $1200 and a civil penalty of $5000.
DONE AND RECOMMENDED this 22nd day of December, 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 22nd day of December,
1993.
COPIES FURNISHED:
Claire D. Dryfuss, Esquire
Acting Advocate
Commission on Ethics
Office of the Attorney General
The Capitol, PL-01
Tallahassee, Florida 32399-1050
Robert H. Grizzard, II, Esquire
Post Office Box 992
Lakeland, Florida 33802-0992
Bonnie Williams, Executive Director
Ethics Commission
Post Office Drawer 15709
Tallahassee, Florida 32317-5709
Phil Claypool, General Counsel
Ethics Commission
Post Office Drawer 15709
Tallahassee, 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 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.