91-43 Recommended Order, In re FRED PEEL and JOHN JENKINS

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

In Re FRED PEEL, )

)

Respondent, ) CASE NO. 91-8116EC

) COMPLAINT NO. 91-42

)

_______________________)

)

In Re JOHN JENKINS, )

)

Respondent, ) CASE NO. 91-8323EC

) COMPLAINT NO. 91-43

)

_______________________)

RECOMMENDED ORDER

Pursuant to written notice, a formal hearing was held in these cases before Larry J. Sartin, a duly designated Hearing Officer of the Division of Administrative Hearings, April 4, 1992, in Chipley, Florida.

APPEARANCES

For Petitioner: Virlindia Doss

Assistant Attorney General

Department of Legal Affairs

The Capitol, Suite 1601

Tallahassee, Florida 32399-1050

For Respondents: William E. Powers, Jr., Esquire

Phillip P. Quaschnick

Powers, Quaschnick & Tischler

1853 Capital Circle Northeast

Suite B

Post Office Box 12186

Tallahassee, Florida 32317-2186

STATEMENT OF THE ISSUES

Case Number 91-8116EC:

Whether the Respondent, Fred Peel, violated Section 112.313(6), Florida Statutes: (1) by failing to have complaint review procedures in place in his office as required by Section 112.533(1), Florida Statutes; (2) by attempting to intimidate the complainant into leaving the Washington County Sheriff's offices without receiving a copy of his arrest report; and (3) by attempting to charge $5.00 for copy of the arrest report?

Case Number 91-8323EC: Whether the Respondent, John Jenkins, violated Section 112.313(6), Florida Statutes, by attempting to intimidate the complainant into leaving the Washington County Sheriff's offices without receiving a copy of his arrest report?

PRELIMINARY STATEMENT

Case Number 91-8116EC:

On or about March 22, 1991, a Complaint against the Respondent, Fred Peel, was filed with the Florida Commission on Ethics (hereinafter referred to as the "Commission"). By letter dated July 25, 1991, the complainant was requested to provide additional information. A second Complaint dated July 30, 1991, was filed in response to the July 25, 1991, letter.

On August 6, 1991, the Executive Director of the Commission entered a Recommendation of Legal Insufficiency suggesting to the Commission that the two Complaints against Sheriff Peel did not sufficiently allege a violation of the Code of Ethics for Public Officers and Employees, Part III, Chapter 112, Florida Statutes (hereinafter referred to as the "Ethics Code").

Based upon a review of the two Complaints and the Executive Director's Recommendation, the Commission issued a Determination of Investigative Jurisdiction and Order to Investigate on September 17, 1991, ordering the staff of the Commission to conduct a preliminary investigation into whether Sheriff Peel had violated Section 112.313(6), Florida Statutes.

Following the investigation of the allegations against Sheriff Peel, a Report of Investigation was released on October 7, 1991. Based upon the two Complaints and the Report of Investigation the Advocate issued an Advocate's Recommendation on October 16, 1991. The Advocate suggested that there was no probable cause to believe that Sheriff Peel had violated Section 112.313(6), Florida Statutes.

Based upon the Report of Investigation the Commission issued an Order Finding Probable Cause on December 11, 1991. The Commission ordered that a public hearing be conducted.

Case Number 91-8323EC:

A Complaint against the Respondent, John Jenkins, was also filed with the Commission on or about March 22, 1991. On August 6, 1991, the Executive Director of the Commission entered a Recommendation of Legal Insufficiency suggesting that the Complaint did not sufficiently allege a violation of the Ethics Code.

Based upon a review of the Complaint and the Executive Director's Recommendation, the Commission issued a Determination of Investigative Jurisdiction and Order to Investigate on September 17, 1991, ordering the staff of the Commission to conduct a preliminary investigation into whether Captain Jenkins had violated Section 112.313(6), Florida Statutes.

Following the Commission's investigation of the allegations against Captain Jenkins a Report of Investigation was released on October 15, 1991. Based upon the Complaint and the Report of Investigation the Advocate issued an Advocate's Recommendation on October 24, 1991. The Advocate determined that there was no probable cause to believe that Captain Jenkins had violated Section 112.313(6), Florida Statutes.

Based upon the Report of Investigation the Commission issued an Order Finding Probable Cause on December 11, 1991. The Commission ordered that a public hearing be conducted.

The Consolidated Cases:

By letter dated December 18, 1991, the Commission referred both matters to the Division of Administrative Hearings. In accordance with Rules 34-5.010 and 34-5.014, Florida Administrative Code, the Commission requested that the public hearing on the Complaints against Sheriff Peel and the Complaint against Captain Jenkins be conducted by the Division of Administrative Hearings. The Complaints against Sheriff Peel were assigned case number 91-8116EC. The Complaint against Captain Jenkins was assigned case number 91-8323EC.

A separate Notice of Hearing was entered in both cases scheduling the final hearing of these cases for February 26, 1992. A motion for continuance filed by the Respondents was granted by order entered January 24, 1992. The final hearing was rescheduled for March 18, 1992. By order entered March 5, 1992, a motion for continuance filed by the Advocate was granted. The final hearing was rescheduled for April 4, 1992.

By Order entered January 10, 1992, a motion to consolidate the cases was granted.

On March 10, 1992, the Respondents filed a Motion to Dismiss and a Request for Oral Argument on Respondents' Motion to Dismiss. A Motion for Enlargement of Time filed by the Advocate was granted by separate order. On March 23, 1992, the Respondents filed a Notice of Partial Withdraw [sic] of Motion to Dismiss and Joint Request for Expedited Ruling. Finally, on March 26, 1992, the Respondents filed a Notice of Intent to Rely on Supplemental Authority.

The Respondents' request for oral argument was granted and a motion hearing was held on March 27, 1992. Following argument of the parties and the inability of the parties to stipulate to the facts in these case, it was agreed that the undersigned would consider the depositions of the Respondents, the complainant and one other witness. The parties were informed that the undersigned would inform them whether the Motion to Dismiss would be granted or denied later in the day after consideration of the depositions. During the afternoon of March 27, 1992, after the undersigned had read the depositions, the parties were informed that the Motion to Dismiss was denied.

The Respondents also filed a Motion for Sanctions Pursuant to Section 120.57(1)(b)5. A ruling on that motion was reserved until after the final hearing. The motion has been denied in a separate order entered simultaneously with this Recommended Order.

Prior to the final hearing the parties filed a pre-hearing statement containing stipulated findings of fact. Those facts have been accepted in this Recommended Order.

At the final hearing the Advocate presented the testimony of the complainant, Timothy Hinson, and Sharon Bellamy. The Advocate also offered three exhibits which were accepted into evidence. Two of the exhibits accepted into evidence consisted of the deposition testimony of Sheriff Peel and Captain Jenkins.

The Respondents testified on their own behalf and presented the testimony of Deputy Michael R. Qualls, Pam Miner and David Corbin. The Respondents also offered nine exhibits for identification purposes. Respondents' exhibits 1-5 were rejected. Respondents' exhibits 6, 8 and 9 were accepted into evidence. A ruling on Respondents' exhibit 7 was reserved. Respondents' exhibit 7 is hereby rejected.

The Advocate has argued in her proposed recommended order that certain statements of the complainant and arrest records concerning the complainant should not have been accepted into evidence. Objections to the statements and exhibits were overruled at the final hearing and will not be reversed in this Recommended Order. It is noted, however, that the only findings of fact concerning the statements and the exhibits are contained in findings of fact 11 and 12.

The parties stipulated that no transcript of the hearing would be filed.

The parties have filed proposed recommended orders containing proposed findings of fact. A ruling on each proposed finding of fact has been made either directly or indirectly in this Recommended Order or the proposed finding of fact has been accepted or rejected in the Appendix which is attached hereto.

FINDINGS OF FACT

A. The Respondents.

1. The Respondent, Fred Peel, is the Sheriff of Washington County, Florida. (Stipulated Fact).

2. Sheriff Peel has continuously served as the Sheriff of Washington County for the past fifteen years. (Stipulated Fact).

3. Sheriff Peel is an elected official. (Stipulated Fact).

4. At all times relevant to this proceeding, Sheriff Peel served as a public officer subject to Section 112.313(6), Florida Statutes.

5. The Respondent, John Jenkins, is a captain with the Washington County Sheriff's Department. (Stipulated Fact).

6. Captain Jenkins has continuously served with the Sheriff's Department for ten years. (Stipulated Fact).

7. Captain Jenkins was appointed by Sheriff Peel pursuant to Chapter 30, Florida Statutes. (Stipulated Fact).

8. At all times relevant to this proceeding, Captain Jenkins served as a public officer subject to Section 112.313(6), Florida Statutes.

B. The Arrest of the Complainant.

9. The complainant, Timothy Hinson, was arrested by a deputy of the Washington County Sheriff's Office on November 26, 1990. Mr. Hinson was charged with driving under the influence, driving while license suspended or revoked and refusal to sign citation. (Stipulated Fact).

10. At the time of his arrest, Mr. Hinson was intoxicated. Mr. Hinson's speech was slurred, his appearance was disheveled and his ability to understand verbal communication was poor.

11. After being arrested and transported to the Washington County jail, Mr. Hinson made profane and abusive threats addressed to the arresting deputy and the "Sheriff". Mr. Hinson threatened to have the "Sheriff" removed. Mr. Hinson did not know who the Sheriff was at the time. Mr. Hinson's actions, failed to prove, as suggested by the Respondents, that Mr. Hinson had a vendetta against the Respondents or law enforcement personnel in general. This evidence merely proved that Mr. Hinson was drunk.

12. The parties stipulated that, prior to his arrest on November 26, 1990, Mr. Hinson had been arrested six times since 1983. This evidence failed to prove, however, the Respondents' contention that Mr. Hinson had a grudge or vendetta against the Respondents or law enforcement personnel in general. This evidence suggests that Mr. Hinson has a drinking problem.

C. Mr. Hinson's Effort to Obtain a Copy of His Arrest

Record.

13. Just prior to noon on December 28, 1990, Mr. Hinson went to the Washington County Sheriff's offices. Mr. Hinson went to the Sheriff's offices with the intent to obtain a copy of the records related to his arrest on November 26, 1990. (Stipulated Fact).

14. Mr. Hinson was met in the lobby of the Sheriff's offices by Sharon Bellamy, an employee of Sheriff Peel. Mr. Hinson informed Ms. Bellamy that he wanted a copy of his arrest record. Mr. Hinson informed Ms. Bellamy that he needed a copy of the documents for his defense.

15. Ms. Bellamy retrieved Mr. Hinson's file from the office where records were kept and brought it to the lobby to make the copies requested at a copy machine located in the lobby.

16. There were two documents in the file that Mr. Hinson requested: the complaint and the arresting report.

17. As Ms. Bellamy began to make a copy of the documents Mr. Hinson had requested, she found a copy of another document that had been mailed to Mr. Hinson that he had not requested. The document was a notice to Mr. Hinson that his Florida drivers' license had been suspended for refusing to take a breath test. Ms. Bellamy began quizzing Mr. Hinson about whether he had received the document.

18. Although Mr. Hinson had in fact received the notice Ms. Bellamy asked him about, he told her he had not and requested a copy of it. Ms. Bellamy continued to ask Mr. Hinson about the notice. The conversation between Mr. Hinson and Ms. Bellamy became more agitated, although the evidence failed to prove why.

19. Pam Miner, the Sheriff's secretary, was in an office next to the lobby. The door opening into the lobby was open and Ms. Miner overheard Ms. Bellamy and Mr. Hinson. Sheriff Peel was sitting in his office, which adjoined Ms. Miner's office. The door opening into Ms. Miner's office was also open and he could also hear the discussion. At some time after Ms. Bellamy began discussing the notice concerning Mr. Hinson's driver's license with him, Ms. Miner went to the door of Sheriff Peel's office and gave him a look which she described as intended to convey to Sheriff Peel that "you need to do something".

20. After Ms. Miner looked into Sheriff Peel's office, he went out into the lobby. Sheriff Peel initially watched what was going on. At some point shortly after Sheriff Peel went into the lobby he asked Mr. Hinson some questions about Mr. Hinson's driver's license. Mr. Hinson informed Sheriff Peel that he had a Maryland driver's license.

21. At some point during the discussion between Sheriff Peel and Mr. Hinson, Mr. Hinson indicated that he was seeking a copy of the documents in his file for his attorney. Sheriff Peel suggested that Mr. Hinson have his attorney get the copies.

22. The discussion between Mr. Hinson and Sheriff Peel became more heated and argumentative. Eventually Sheriff Peel told Ms. Bellamy to "charge him $5.00" and started to leave. Mr. Hinson perceived this comment to mean that he was to be charged $5.00 per page or document.

23. Prior to coming to the Sheriff's office to obtain copies of the documents in his file, Mr. Hinson had telephoned the Sheriff's office and had been told that there was a $2.00 copying charge. Two dollars is, in fact, what the Sheriff's office normally charges for copying documents. Mr. Hinson believed, therefore, that he would be charged $2.00 per document or a total of $4.00 for the documents he had requested.

24. When Mr. Hinson heard the Sheriff indicate that he was to be charged $5.00, he became angry because he believed that Sheriff Peel was suggesting that he be charged $5.00 per copy or $5.00 per page. Such a charge was inconsistent with what he had been previously told about copying charges. Mr. Hinson incorrectly believed that Sheriff Peel was going to charge him the higher rate for copying because he had a Maryland drivers' license and was, therefore, apparently not from Washington County.

25. Mr. Hinson confronted Sheriff Peel by stating that he had been told that the copying charge was only $2.00 a copy. Sheriff Peel, if he had meant to charge Mr. Hinson a total of $5.00 as suggested during the final hearing, did not clarify that he was only going to charge him a total of $5.00 instead of $5.00 per copy as Mr. Hinson apparently believed. The failure to clarify what he meant, and the fact that Sheriff Peel did not know how many documents were actually involved, support the conclusion that Sheriff Peel did not intend that Ms. Bellamy merely charge Mr. Hinson a total of $5.00. Of greater importance, these facts explain Mr. Hinson's confusion and anger. He reasonably believed he was going to be overcharged.

26. Some time after Mr. Hinson confronted Sheriff Peel about the $5.00 charge, Sheriff Peel told Ms. Bellamy not to give Mr. Hinson anything.

27. Mr. Hinson confronted Sheriff Peel, although he did not know at the time that he was the Sheriff, and asked him "what's the problem." Mr. Hinson also asked for the person in charge of "internal affairs", stating that he wanted to file a complaint against Sheriff Peel.

28. Sheriff Peel informed Mr. Hinson that the Sheriff's Office did not have an "internal affairs" department, that he was the Sheriff, and that he would not take a complaint against himself.

29. The Washington County Sheriff's Office has no written policy for handling complaints against personnel.

30. The Washington County Sheriff's Office has an informal, unwritten policy for handling complaints. Sheriff Peel makes the final decision concerning complaints.

31. At some time shortly after Sheriff Peel and Mr. Hinson began to argue, Captain Jenkins came to the door opening to the lobby from the room that he had been in. Initially, Captain Jenkins stood watching the discussion. Because of the smallness of the room, Captain Jenkins was relatively close to Mr. Hinson.

32. After Sheriff Peel informed Mr. Hinson that there was no internal affairs department and that he would not take a complaint against himself, Captain Jenkins stated "I'm internal affairs this week. What's the problem?" or a statement to that effect. Although Captain Jenkins testified that he made the comment to try to diffuse the situation by injecting some humor into the situation, the weight of the evidence does not support this explanation. The weight of the evidence supports a conclusion that the comment was made in a snide and sarcastic manner. Mr. Hinson was being rude and confrontational. Sheriff Peel and Mr. Hinson were engaged in a somewhat heated argument. Mr. Hinson was obviously angry. To make such a statement to a person in this type situation evidenced a failure to exercise good judgement. The statement was intended to rebuke and insult Mr. Hinson.

33. Mr. Hinson demanded that Captain Jenkins identify himself, which he did. Mr. Hinson told Captain Jenkins that he wanted to file a complaint against Sheriff Peel. Captain Jenkins told him that he would not take a complaint against the Sheriff.

34. Captain Jenkins told Mr. Hinson that it would be better if he left the office.

35. It was apparent to Mr. Hinson that nothing more could come of the confrontation with Sheriff Peel and Captain Jenkins. Sheriff Peel had ordered that nothing be given to Mr. Hinson. Sheriff Peel and Captain Jenkins had refused to take a complaint. It had been suggested that he leave. Mr. Hinson felt intimidated. Captain Jenkins is 6'1" and weighs approximately 225 pounds while Mr. Hinson is slightly built in comparison. There was nothing to be gained by continued argument and, therefore, Mr. Hinson left.

36. Mr. Hinson was not intoxicated or taking medication at the time of his visit to the Sheriff's offices.

37. Mr. Hinson's attitude and demeanor with Ms. Bellamy was defensive and confrontational. Mr. Hinson's displeasure over his arrest and his attitude were perceived as rudeness by Ms. Bellamy. Although Mr. Hinson did not yell or use profanity, as described by Ms. Bellamy, Mr. Hinson "had an attitude". These findings are based in large part upon the testimony of Ms. Bellamy, Pam Miner (the Sheriff's secretary) and David Corbin, the Director of Washington County Parks and Recreation. Mr. Corbin was in the lobby during the confrontation. Although Ms. Bellamy and Ms. Miner are employed by Sheriff Peel, and the fact that Ms. Bellamy was not totally candid in her testimony, the crucial elements of the testimony of the Respondents and these witnesses were consistent.

38. It is difficult to categorize the degree of Mr. Hinson's rudeness. All of the witnesses agreed Mr. Hinson was rude and confrontational. His rudeness and attitude were not, however, so severe that Ms. Bellamy did not believe that she could handle Mr. Hinson. Nor did Ms. Bellamy ever feel threatened by Mr. Hinson. She did not request any assistance from Sheriff Peel or Captain Jenkins, both of whom were in adjoining offices. Nor was Mr. Hinson's attitude and treatment of Ms. Bellamy sufficiently troublesome to cause Captain Jenkins, who could hear the discussion between Ms. Bellamy and Mr. Hinson, to come out to assist Ms. Bellamy until after Sheriff Peel had intervened. Finally, Ms. Bellamy left the lobby during the confrontation to prepare to go to lunch, not something that would be expected of someone witnessing an overly serious confrontation.

39. Sheriff Peel and Captain Jenkins did not yell at Mr. Hinson. Nor did they laugh at Mr. Hinson. Sheriff Peel did, however, become angry and argumentative with Mr. Hinson. The situation could have been ended by simply allowing Ms. Bellamy to provide the copies of the documents Mr. Hinson had requested, which had already been made. Captain Jenkins was sarcastic with Mr. Hinson and, to some degree, because of his size, intimidating to Mr. Hinson. Captain Jenkins' comment to Mr. Hinson, although sarcastic, was not threatening.

40. Mr. Hinson, based upon 20-20 hindsight, was not a threat to anybody in the Sheriff's offices. This is not to say, however, that Mr. Hinson should have been taken lightly or that Mr. Hinson's conduct should have been totally accepted and tolerated by Sheriff Peel. Nor can it be concluded that Captain Jenkins should have totally ignored what was going on.

D. Effort to Secure a Special Privilege, Benefit, or

Exemption.

41. The weight of the evidence failed to prove that the failure to have a written complaint procedure in place in the Washington County Sheriff's Office was intended by Sheriff Peel to secure a special privilege, benefit or exemption.

42. Mr. Hinson, after telephoning the Florida Sheriff's Association, was informed that he could pick up a copy of the documents he wanted at the Sheriff's offices.

43. Mr. Hinson also could have obtained a copy of the documents he wanted by having someone else, including his attorney, pick them up or by requesting a copy of the documents from the clerk of court's office.

44. The weight of the evidence failed to prove that Sheriff Peel was attempting to intimidate Mr. Hinson into leaving the Sheriff's offices without obtaining a copy of the documents he had requested in order to secure a special privilege, benefit or exemption.

45. Any funds collected for copying by the Sheriff's Office are funds of Washington County. Sheriff Peel has no control or direct use of those funds.

46. The weight of the evidence failed to prove that Sheriff Peel was attempting to charge $5.00 for the copies in an effort to secure a special privilege, benefit or exemption.

47. The weight of the evidence failed to prove that Captain Jenkins' actions were intended to intimidate Mr. Hinson into leaving the Sheriff's offices in order to secure a special privilege, benefit or exemption.

48. At worst, the evidence proved that Sheriff Peel, arguably, could have exercised a little more patience and that Captain Jenkins made a smart remark at an inappropriate time. These actions, in light of Mr. Hinson's attitude and demeanor, do not support a conclusion that Sheriff Peel or Captain Jenkins were attempting to secure a special privilege, benefit or exemption for themselves or others. The actions of all those involved in this situation were emotional reactions to the situation and were not calculated to achieve any particular result.

CONCLUSIONS OF LAW

A. Jurisdiction, Burden of Proof and Standard of

Proof.

49. 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). 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").

50. 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 Sheriff Peel and Captain Jenkins violated Section 112.313(6), Florida Statutes. Therefore, the burden of proving the elements of the Respondents' alleged violations was on the Commission.

51. The Commission has ruled that the standard of proof in cases before it require that the Commission prove its charges by a preponderance of the evidence. In Re Michael Langton, Complaint No 90-86 (Final Order, January 28, 1992). See also, In Re Leo C. Nicholas, 11 F.A.L.R. 5234 (1989).

B. Section 112.313(6), Florida Statutes.

52. Section 112.313(6), Florida Statutes, 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 not be

construed to conflict with s. 104.31.

To conclude that Sheriff Peel and/or Captain Jenkins are guilty of a violation of Section 112.313(6), Florida Statutes, requires proof of the following elements:

a. Sheriff Peel and Captain Jenkins must be

either public officers or public employees;

b. Sheriff Peel and Captain Jenkins must have

used, or attempted to use, their official

positions or property or resources within

their trust, or performed their official

duties:

(1) Corruptly; and

(2) With an intent to secure a special

privilege, benefit or exemption for themselves

or others.

C. Sheriff Peel's Alleged Violation of Section

112.313(6), Florida Statutes.

1. The First Element: Public Officer or Public

Employee.

53. Section 112.313(1), Florida Statutes, defines the terms "public officer" to include "any person elected or appointed to hold office in any agency . . . ." An "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 . . . ."

54. The evidence proved that Sheriff Peel was the Sheriff of Washington County, Florida. Sheriff Peel, therefore, was a "public officer" for purposes of Section 112.313(6), Florida Statutes.

2. The Second Element: Use of Official Position or

Property or Resources.

55. The second element of a violation of Section 112.313(6), Florida Statutes, has been proved, but only in that the evidence proved that Sheriff Peel, during the confrontation with Mr. Hinson, was acting in his official capacity as Sheriff of Washington County. The evidence failed to prove, however, that Sheriff Peel sought to benefit himself "corruptly" or that he intended to secure a special privilege, benefit or exemption for himself or others.

56. The term "corruptly" is defined in Section 112.313(7), Florida Statutes, as follows:

(7) "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.

57. It has been suggested by the Commission that Sheriff Peel used his position "corruptly" because he sought to: (a) avoid complying with Section 112.533(1), Florida Statutes, by failing to have a complaint review procedure in place; (b) intimidate and harass Mr. Hinson into leaving the Sheriff's offices without receiving a copy of the documents he came to get; and (c) charge $5.00 for the documents. The evidence failed to prove that Sheriff Peel's actions were intended or calculated to achieve any of these alleged benefits.

58. Section 112.533(1), Florida Statutes, requires the establishment of complaint procedures by "any municipality or the state or any political subdivision thereof which employs law enforcement officers or correctional officers . . . ." Sheriff Peel and Captain Jenkins have argued that this provision does not apply to the Sheriffs of the State of Florida. See Evans v. Hardcastle, 339 So.2d 1150 (Fla. 2d DCA 1976); and Johnson v. Wilson, 336 So.2d 651 (Fla. 1st DCA 1976).

59. It is not necessary to address the issue of whether Sheriff Peel must comply with the requirements of Section 112.533(1), Florida Statutes. Even if it were concluded that Sheriff Peel was required to comply with Section 112.533(1), Florida Statutes, the evidence failed to prove that Sheriff Peel's failure to have a written procedure "was done with a wrongful intent and for the purpose of obtaining, or compensating or receiving compensation for, any benefit resulting . . . " from his actions.

60. The Advocate has suggested that the benefit sought to be achieved by not having a complaint procedure was to enable Sheriff Peel to "address complaints in an arbitrary fashion, [and] to ignore them completely, as occurred in this case." Although the lack of a written complaint procedure may allow Sheriff Peel to act arbitrarily and to ignore complaints, the evidence failed to prove that this was Sheriff Peel's intent.

61. The evidence also failed to prove that Sheriff Peel's actions in response to Mr. Hinson's request to file a complaint against him were done "corruptly" or with any intent to avoid Mr. Hinson's complaint. At worst, the evidence proved that Sheriff Peel lost his patience with Mr. Hinson. By the time that Mr. Hinson indicated that he wanted to file a complaint, both men had lost their tempers and neither man would "back down". If anything, Sheriff Peel's response was a reflex reaction, not one taken with any intent to secure any calculated benefit. His response was not made with any wrongful intent. The evidence did not prove that Sheriff Peel's response was intended to provide "the emotional satisfaction of demonstrating that the Sheriff could not be challenged on his own turf."

62. The same conclusions apply to the allegations concerning Sheriff Peel's alleged effort to insure that Mr. Hinson did not obtain the documents he had requested and the allegation that Sheriff Peel intended to charge too much for the copies. The evidence failed to prove that these somewhat inconsistent alleged goals ever crossed Sheriff's Peel's mind. Sheriff Peel was aware that Mr. Hinson could get a copy of the documents by alternative means. Sheriff Peel was also aware that any amount charged for the documents would not directly inure to his benefit. Any benefit to Sheriff Peel or anyone else that resulted from no giving the copies to Mr. Hinson and any benefit that might have resulted had Mr. Hinson paid more than $2.00 per copy, is too remote to constitute a violation of Section 112.313(6), Florida Statutes. Again, at worst, Sheriff Peel merely lost patience with Mr. Hinson.

63. Although the evidence did not prove, as argued by the Respondents, that it was only Mr. Hinson that acted improperly in this matter, any inappropriate behavior by Sheriff Peel did not reach the level of constituting a violation of Section 112.313(6), Florida Statutes.

D. Captain Jenkins' Alleged Violation of Section

112.313(6), Florida Statutes.

1. The First Element: Public Officer or Public

Employee.

64. The evidence proved that Captain Jenkins was appointed to his position by the Sheriff of Washington County. Captain Jenkins, therefore, was a "public officer" for purposes of Section 112.313(6), Florida Statutes. See Murphey v. Mack, 358 So.2d 822 (Fla. 1978).

2. The Second Element: Use of Official Position or

Property or Resources.

65. The second element of a violation of Section 112.313(6), Florida Statutes, has been proved, but only in that the evidence proved that Captain Jenkins, during the confrontation with Mr. Hinson, was acting in his official capacity as a deputy of the Sheriff of Washington County. The evidence failed to prove that Captain Jenkins sought to benefit himself "corruptly" or that he intended to secure a special privilege, benefit or exemption for himself or others.

66. It has been argued that Captain Jenkins used his position "corruptly" in that he attempted to intimidate Mr. Hinson into leaving the Sheriff's offices without receiving a copy of the documents he had come to get. The evidence failed to prove this allegation. Captain Jenkins, like Sheriff Peel, was aware that Mr. Hinson could get a copy of the documents by alternative means. At worst, the evidence proved that Captain Jenkins failed to use good judgement when he made the comment about being internal affairs for the week to Mr. Hinson. Any inappropriate behavior by Captain Jenkins did not reach the level of constituting a violation of Section 112.313(6), Florida Statutes.

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 dismissing Complaint No. 91-42 and Complaint No. 91-43.

DONE and ENTERED this __19th__ day of May, 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 __19th__ day of May, 1992.

APPENDIX TO RECOMMENDED ORDER

The parties have submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted.

The Advocate's Proposed Findings of Fact

Proposed Finding Paragraph Number in Recommended Order

of Fact Number of Acceptance or Reason for Rejection

1 1-2.

2 3.

3 5.

4 6.

5 7.

1 9.

2 10.

1 23.

2 Hereby accepted.

3 Conclusion of law.

1 28-30.

2 29.

3 30.

1 13.

2 36.

3 14 and 23.

4 14-15.

5 14.

6 17 and hereby accepted.

7 See 37.

8 See 37-38 and 40. Ms. Bellamy's relationship to the Respondents has been considered. While it is true that Ms. Bellamy was not totally candid, the weight of the evidence failed to prove that Ms. Bellamy's testimony was materially flawed, especially in light of the testimony of other witnesses.

9-10 Not supported by the weight of the evidence.

11 See 41. The evidence failed to prove that "no reasonable person could have perceived Mr. Hinson as posing such a danger." Such a conclusion can only be made with 20-20 hindsight.

11a-b 38.

11c 19.

11c 31 and 38.

12 20-21

13 21 and see 26.

14 27.

15 28.

16 Not relevant.

17 22.

18 22-24.

19 25.

20 See 31.

21-22 32. The last sentence of proposed finding of fact 22 is not supported by the weight of the evidence.

23 33.

24 34.

25 35.

26 See 35.

27 See 37-40. The last three sentences are not supported by the weight of the evidence.

28 See 25.

The Respondents' Proposed Findings of Fact

Proposed Finding Paragraph Number in Recommended Order

of Fact Number of Acceptance or Reason for Rejection

1 9.

2 See 11.

3 13-14.

4 15 and 17-19.

5 19, 21 and 37-38. The allegations concerning whether Mr. Hinson became "loud" are rejected as not supported by the weight of the evidence.

6 See 27. The evidence failed to prove that Sheriff Peel "explained to Hinson that he had a small office" in an effort to explain why he did not have an internal affairs department. The Respondents' suggestion that Mr. Hinson was out of control is not supported by the weight of the evidence.

7 See 31 and 33. The weight of the evidence failed to prove that Captain Jenkins suggested that Mr. Hinson go to the State Attorney's office if he wanted to file a complaint.

8 See 22. The weight of the evidence failed to prove that Sheriff Peel was aware of how many pages were to be copied, that Mr. Hinson left after being told that the charge was $5.00 or that Mr. Hinson was not told to leave.

9 23 and hereby accepted.

10 16, 18 and 23.

11 45.

12 28-30.

13 See 31.

14 Hereby accepted.

15 See 47. The last two sentences are not relevant.

16 See 24-25, 38-39 and 48.

17 42.

18 See 12. The last sentence is not supported by the weight of the evidence.

19-24 Although portions of these proposed findings of fact are true, the ultimate findings of fact suggested by these proposed facts are not supported by the weight of the evidence. For example, although it is true that Mr. Hinson admitted that he had a bad memory, the essential elements of his testimony were credible.

25 41-47. The last two sentences are not supported by the weight of the evidence.

COPIES FURNISHED:

Virlindia Doss

Assistant Attorney General

Department of Legal Affairs

The Capitol, Suite 101

Tallahassee, Florida 32399-1050

William E. Powers, Jr., Esquire

Post Office Box 12186

Tallahassee, Florida 32317-2186

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.