STATE OF FLORIDA
DIVISION OF
ADMINISTRATIVE HEARINGS
In Re:
PATTY LYNCH CASE NO. 94-2068EC
_____________________/
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 June 2, 1994, in DeFuniak Springs, Florida.
APPEARANCES
For Advocate: Michael E.
Ingram, Esquire
Steven Grigas,
Esquire
Assistant Attorney General
Department of Legal Affairs
PL-01, The Capitol
Tallahassee, Florida 32399
For Respondent: E. Allan Ramey,
Esquire
13 Circle Drive
Post Office Box 369
DeFuniak Springs, Florida 32433-0369
STATEMENT OF THE ISSUES
Whether Respondent, Patty Lynch, violated Section 112.313(6), Florida
Statutes, and, if so, what penalty should be imposed.
PRELIMINARY STATEMENT
On January 28, 1993, the Florida Commission on Ethics (Commission)
issued an Order Finding Probable Cause to believe that Respondent, Patty Lynch
(Lynch), as an employee of the Walton County Tax Collector's Office, violated
Section 112.313(6), Florida Statutes, by soliciting votes for her preferred
candidate for tax collector from the users of the tax collector's office. On April 18, 1994, the case was referred to
the Division of Administrative Hearings for assignment to a Hearing Officer.
At the final hearing, the Advocate called Pat Pollard, Pamela Dyess,
Sylvia Burke, Rodney Ryals, Patty Lynch, and Sherry Sylvester as
witnesses. Advocate's Exhibit 1 was
admitted into evidence. Respondent
testified on her behalf and presented the testimony of Jack Little, Sue Carter,
Tammy Day and Teresa Gomillion.
No transcript was filed. The
parties agreed to file proposed recommended orders on or before July 6,
1994. On July 1, 1994, the Advocate
filed a Joint Motion for Extension of Time to file proposed recommended
orders. The motion was granted and the
time for filing proposed recommended orders was extended to July 13, 1994. The parties timely filed their proposed
recommended orders. The parties'
proposed findings of fact are addressed in the Appendix to this Recommended
Order.
FINDINGS OF FACT
1. After serving 32 years as Tax
Collector for Walton County, Jack Little decided to retire in 1992.
2. There were several Democratic
candidates and one Republican candidate who ran for Tax Collector. Among the Democratic candidates was Sue
Carter who had been employed in the Walton County Tax Collector's office prior
to resigning to run for tax collector.
3. The first Democratic primary
was held in September, 1992, resulting in a runoff primary between Sue Carter
and Sue Rushing in October, 1992. Ms.
Carter defeated Ms. Rushing.
4. In November 1992, Sue Carter
won the general election. Respondent,
Patty Lynch (Lynch), was employed in the tax collector's office in 1992 as a
title clerk. As title clerk, Lynch
dealt with the public in issuing vehicle license renewals, registering titles
for vehicles, and issuing handicap parking permits.
5. Pat Pollard, Teresa
Gomillion, Tammy Day and Sylvia Rushing were also employed in the tax
collector's office during the 1992 election campaign. Ms. Gomillion and Lynch supported Ms. Carter. Ms. Day did not support Ms. Carter. Ms. Rushing was related to Sue Rushing, Ms.
Carter's opponent. Ms. Pollard did not
support anyone for the office of Tax Collector.
6. Pat Pollard was a title
clerk, and her work station was located about ten feet away from Lynch's work
station. Before the first and second
Democratic primaries, Ms. Pollard heard Lynch discuss politics with
customers. Lynch would encourage
nonregistered voters to register to vote and to vote for Carter. She saw Lynch hand out palm cards for Carter
to customers during office hours. Palm
cards are used by political candidates to advertise their candidacy. The cards are usually small and may feature
a picture of the candidate and information concerning the qualifications of the
candidate.
7. Pamela Dyess has been
employed at a car dealership in DeFuniak Springs for 16 years. During 1992, her job responsibilities required
her to go to the tax collector's office to handle the tag and title work for
the dealership. Between the first and
second primaries, Ms. Dyess went to the tax collector's office and while she
was there the subject of the first primary was discussed. Ms. Dyess stated that she had voted for
Harley Henderson. Ms. Gomillion joined
in the conversation. Later Lynch joined
in the conversation and told Ms. Dyess that she needed to vote for Carter. Ms. Dyess was upset by Ms. Gomillion's and
Lynch's comments and felt that they were telling her how to cast her vote.
8. Sylvia Burke, a lifelong
resident of DeFuniak Springs, supported Sue Rushing in the race for tax
collector. During the runoff, Ms. Burke
went to the tax collector's office to renew her car tag. She teased Lynch saying that she was going
to politick for Ms. Rushing. Her remark
set off an argument between Lynch and Ms. Burke on the candidates for tax
collector.
9. Rodney Ryals has been an
employee for the City of DeFuniak Springs for the last ten years. During 1992, Mr. Ryals spent a great deal of
time at the tax collectors's office taking care of city business and visiting
with his friend Ms. Pollard. While at
the tax collector's office, Ryals saw Lynch hand out campaign cards for Carter
depicting Carter's picture and listing Carter's qualifications. Lynch tried to give Mr. Ryals campaign
literature. Mr. Ryals did not support
Carter in the tax collector's race.
10. During Ryals' visits to the
tax collector's office, Lynch would tell him, "You better vote for Sue
Carter, she's the only qualified candidate." Mr. Ryals advised Lynch that she should not politick on the job
and she responded that she had to politick on the job because she might lose
her job if anyone else got elected.
11. Sherry Sylvester sold
merchandise for House of Lloyd as a side line.
She would get persons to hostess demonstration parties or silent
parties. The customers would place
orders with the hostess of the party, who in turn would transmit the orders to
Ms. Sylvester and receive free merchandise for being a hostess. Lynch had given several House of Lloyd
parties for Ms. Sylvester. Either
before or after the first primary, Ms. Sylvester went to the tax collector's
office to see Lynch concerning House of Lloyd business. While Ms. Sylvester was at the tax collector's
office, Lynch, aware that Ms. Sylvester supported Ms. Rushing, tried to get Ms.
Sylvester to switch to supporting Carter.
Lynch tried to give Ms. Sylvester one of Carter's palm cards.
12. Mr. Little had advised his
employees that they should not politick during office hours. Ms. Carter had also warned Lynch about
campaigning in the office.
CONCLUSIONS OF LAW
13. The Division of
Administrative Hearings has jurisdiction over the parties to and the subject
matter of this proceeding. Section
120.57(1), Florida Statutes. Section
112.322, Florida Statutes, and Rule 34-5.0015, Florida Administrative Code,
authorize the Commission to conduct investigations and to make public reports
on complaints concerning violations of Part III, Chapter 112, Florida Statutes
(the "Code of Ethics for Public Officers and Employees").
14. The burden of proof, absent
a statutory directive to the contrary, is on the party asserting the
affirmative of the issue in the proceeding.
Department of Transportation v. J.W.C. Co., Inc., 396 So.2d 778 (Fla.
1st DC 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 Lynch violated
Section 112.313(6), Florida Statutes.
Therefore, the burden of establishing the elements of Lynch's alleged
violation is on the Commission.
15. Section 112.313(6), Florida
Statutes, provides as follows:
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.
16. The term corruptly is
defined by Section 112.312(9), Florida Statutes, to mean:
"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.
17. In order to establish a
violation of Section 112.313(6), Florida Statutes, the following elements must
be proved:
1. The Respondent
must be either a public
officer or a public employee.
2. The Respondent
must have used or attempted
to use his official position or property or
resources within his trust, or performed his
official duties.
3. The
Respondent's actions in element two must
have been done with an intent to secure a
special privilege, benefit, or exemption for
himself or others.
4. The
Respondent's action and intent in elements
two and three 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.
18. The Advocate has established
that Lynch, as an employee of the Walton County Tax Collector's Office, was a
public employee subject to the Code of Ethics for Public Officers and
Employees, Part III of Chapter 112, Florida Statutes.
19. The Advocate has established
by a preponderance of the evidence that Lynch performed her duties as a title
clerk with the Walton County Tax Collector's Office to secure a special benefit
for herself and for Sue Carter, Ms. Lynch's preferred candidate in the tax
collector political race. Ms. Lynch
passed out Ms. Carter's palm cards to customers of the tax collector's office
while she was on duty in the tax collector's office and told customers that
they should vote for Sue Carter. The
special benefit which Lynch sought was votes for her preferred candidate to
secure the election of Ms. Carter and thereby securing Lynch's continued
employment with the tax collector's office.
20. The Advocate has established
that Lynch's actions were done with a wrongful intent. Lynch had been advised by Mr. Little and Ms.
Carter that she should not politick on the job. When Mr. Ryals was confronted with Lynch's handing out palm cards
and telling customers to vote for Ms. Carter, he advised her that her actions
were illegal. Lynch continued her
actions because she thought that if Ms. Carter were not elected tax collector
that her job as title clerk could be in jeopardy.
21. The Advocate has established
that Lynch's actions were done to influence another person's votes and as such
was inconsistent with her duties as title clerk for the Walton County Tax
Collector's Office.
22. Section 104.31(1)(a),
Florida Statutes, provides:
(1) No officer
or employee of the state,
or of any county or municipality thereof,
except as hereinafter exempted from provisions
hereof shall:
(a) Use his
official authority or influence
for the purpose of interfering with an election
or a nomination of office or coercing or influenc-
ing another person's vote or affecting the result
thereof.
23. In AGO 072-62, March 7,
1972, the Attorney General opined that Section 104.31 does not prohibit passive
political expressions during working hours.
In the instant case, Lynch's actions went beyond passive political expressions. Lynch's official duties did not include
handing out palm cards for her candidate nor did it include telling the
customers of the tax collector's office for whom they should vote. These actions were expressly prohibited by
Mr. Little, the tax collector, and went much further than having a bumper
sticker on one's car or wearing a lapel button.
24. The Advocate has established
by a preponderance of the evidence that Lynch violated Section 112.313(6),
Florida Statutes.
25. Section 112.317(1)(b),
Florida Statutes, provides the following penalties which may be imposed for a
violation by an employee of the Code of Ethics for Public Officers and
Employees:
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 to exceed $5,000.
7. Restitution of
any pecuniary benefits
received because of the violation committed.
8. Public censure
and reprimand.
26. It is my recommendation that
Patty Lynch receive a civil penalty of $500 and be publicly censured and
reprimanded.
RECOMMENDATION
Based on the foregoing Findings of Fact and Conclusions of Law, it is
RECOMMENDED that the Commission on Ethics enter a final order finding
that Patty Lynch violated Section 112.313(6) and recommending a civil penalty
of $500 and a public censure and reprimand.
DONE AND ENTERED this 19th day of August, 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 19th day of August, 1994.
APPENDIX TO RECOMMENDED
ORDER, CASE NO. 94-2068EC
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.
(Revised Proposed Recommended Order)
1.
Paragraphs 1-5: Accepted in
substance.
2.
Paragraph 6: The first sentence
is accepted in
substance. The second sentence
is accepted except as to
the distance between Ms. Pollard's work station and Ms.
Lynch's work station. The
greater weight of the
evidence demonstrated that the work stations were
located about ten feet apart.
3.
Paragraph 7: Accepted in
substance.
4.
Paragraphs 8-11: Rejected to the
extent that they are
not findings of fact but rather recitation of testimony.
5.
Paragraph 12: Accepted in
substance. Ms. Pollard did
not support any candidate for Walton County Tax
Collector.
6.
Paragraphs 13-16: Rejected to
the extent that they are
not findings of fact but rather recitation of testimony.
7.
Paragraph 17: The second
sentence is accepted in
substance. The remainder of the
paragraph is rejected
to the extent that they are not findings of fact but
rather recitation of testimony.
8.
Paragraphs 18-19: Rejected to
the extent that they are
not findings of fact but rather recitation of
testimony.
9.
Paragraph 20: The first sentence
is rejected as not
constituting a finding of fact but rather recitation of
testimony. The second sentence
is rejected as
constituting argument.
10.
Paragraph 21: The first three
sentences are accepted
in substance. The remainder of
the paragraph is
rejected as constituting recitation of testimony.
11.
Paragraph 22: Rejected as
constituting recitation of
testimony.
12.
Paragraph 23: The first sentence is accepted in
substance. The second sentence
is rejected as
constituting recitation of testimony.
13.
Paragraph 24: Rejected as
constituting recitation of
testimony.
14.
Paragraph 25: The first sentence
is rejected as
constituting argument. The
second sentence is rejected
as constituting recitation of testimony.
15.
Paragraphs 26-33: Rejected as
recitation of testimony.
16.
Paragraph 34: Rejected as
unnecessary.
17.
Paragraphs 35-41: Rejected as
recitation of testimony.
18.
Paragraph 42: The first sentence
is rejected as
unnecessary. The last sentence
is rejected as
recitation of testimony.
Respondent's Proposed Findings of
Fact
1.
Paragraphs 1-3: Accepted in
substance.
2.
Paragraphs 4-7: Rejected as
constituting recitation of
testimony.
3.
Paragraph 8: Rejected as
constituting argument.
4.
Paragraph 9: The first sentence
is rejected as
unnecessary. The remainder of
the paragraph is rejected
as subordinate to the facts actually found.
5.
Paragraphs 10-14: Rejected as
constituting recitation
of testimony.
6.
Paragraph 15: Rejected as
constituting argument.
7.
Paragraph 16: The first sentence
is rejected as
constituting recitation of testimony.
The second
sentence is rejected as constituting argument.
8.
Paragraph 17: The first sentence
is rejected as
constituting recitation of testimony.
The remainder of
the paragraph is accepted in substance.
9.
Paragraphs 18-20: Rejected as
constituting recitation
of testimony.
10.
Paragraph 21: The first sentence
is rejected as
unnecessary. The remainder is
rejected as
constituting recitation of testimony.
11.
Paragraphs 22-23: Rejected as
constituting recitation
of testimony.
12.
Paragraph 24: The first sentence
is rejected as
constituting argument. The
second sentence is rejected
as constituting recitation of testimony. The remainder
of the paragraph is rejected as unnecessary.
13.
Paragraphs 25-26: Rejected as
constituting recitation
of testimony.
14.
Paragraph 27: Rejected as
unnecessary.
15.
Paragraphs 28-29: Rejected as
recitation of testimony.
16.
Paragraph 30: The first sentence
is rejected as
recitation of testimony. The
second sentence is
rejected as subordinate to the facts actually found.
17.
Paragraph 31: The first sentence
is rejected as
unnecessary. The remainder of
the sentence is
rejected as constituting recitation of testimony.
18.
Paragraph 32: The first sentence
is rejected as
subordinate to the facts actually found. The second
sentence is accepted in substance.
19.
Paragraph 33: The last sentence
is rejected as
constituting argument. The
remainder of the paragraph
is rejected as recitation of testimony.
20.
Paragraph 34: The first sentence
is rejected as
unnecessary. The last sentence
is rejected as
constituting recitation of testimony.
21.
Paragraph 35: The first part of
the sentence is
accepted in substance. The
second part of the sentence
is rejected as not supported by the greater weight of
the evidence.
COPIES FURNISHED:
Carrie Stillman
Complaint Coordinator
Commission on Ethics
Post Office Box 15709
Tallahassee, Florida 32317-5709
Michael E. Ingram
Assistant Attorney General
Department of Legal Affairs, PL-01
The Capitol
Tallahassee, Florida 32399
E. Allan Ramey, Esquire
Post Office Box 369
Defuniak Springs, Florida 32433-0369
Bonnie Williams
Executive Director
Florida Commission On Ethics
Post Office Drawer 15709
Tallahassee, Florida 32317-5709
Phil Claypool, Esquire
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 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.