STATE OF FLORIDA
DIVISION OF
ADMINISTRATIVE HEARINGS
In Re:
WILLIAM "BILL" HARRISON
CASE NO. 94-1787EC
__________________________________/
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 November 7, 1994, in Crestview, Florida.
APPEARANCES
For Advocate: Marty E. Moore
Assistant Attorney General
PL-01, The Capitol
Tallahassee, Florida 32399-1050
For Respondent: John C. Cooper,
Esquire
Cooper, Coppins & Monroe, P.A.
Post Office Drawer 14447
3303 Thomasville Road
Tallahassee, Florida 32317-4447
STATEMENT OF THE ISSUES
Whether Respondent violated Section 112.313(6), Florida Statutes, and if
so, what penalty is appropriate.
PRELIMINARY STATEMENT
On December 7, 1993, the Florida Commission on Ethics (Commission)
entered an Order Finding Probable Cause to believe that Respondent, William
"Bill" Harrison (Harrison), as a member of the City Council of the
City of Laurel Hill, Florida, violated Section 112.313(6), Florida Statutes, by
obtaining or receiving reimbursement from the City of Laurel Hill (City) for
allegedly traveling to the Florida Department of Law Enforcement in Pensacola
to report threatening phone calls, and by obtaining or receiving reimbursement
from the City for three trips to the Okaloosa County Supervisor of Elections
office to file campaign documents. On
April 6, 1994, this case was forwarded to the Division of Administrative
Hearings for assignment to a Hearing Officer.
The final hearing was originally scheduled for September 2, 1994 and was
rescheduled for November 7, 1994. At
the final hearing the Advocate called three witnesses: Shirley Simmons, Patricia Hollarn, and Larry
Hill. The Advocate Exhibits A1-A18 were
admitted in evidence. Respondent
testified in his own behalf and called James Dunn as a witness. Respondent Exhibits 1-3 were admitted in
evidence.
The parties stipulated to the facts set forth in Section E of the Joint
Prehearing Stipulation and stipulated that at all times material to this
proceeding, Respondent was subject to Part III, Chapter 112, Florida Statutes,
the Code of Ethics for Public Officers and Employees.
A transcript was not ordered.
The parties agreed to file proposed recommended orders on or before
November 17, 1994. The parties timely
filed their proposed recommended orders.
The parties' proposed findings of fact are addressed in the Appendix of
this Recommended Order.
FINDINGS OF FACT
1. Respondent, William
"Bill" Harrison (Harrison) served as a member of the City of Laurel
Hill City Council (Council) from July 1989 to April 1992. The population of Laurel Hill (City) is
approximately 600 people.
2. At the present time, Harrison
is an Okaloosa County Commissioner.
3. Harrison's take-home pay as a
member of the Council was less than $25 monthly.
4. At the July 6, 1989, meeting
of the Council--Harrison's first Council meeting as an elected member of the
Council--Harrison moved, and the Council voted, that the City reimburse Council
members who used their personal vehicles for City business at the rate of 22.5
cents per mile. The Council had
previously authorized the reimbursement for mileage for Council members using
their personal vehicles.
5. There was no requirement to
receive advance permission from the Council before a member took a trip on
official business. There was no written
policy for handling mileage reimbursements. In practice, the party seeking
reimbursement submitted a written request, which would be circulated at the
next Council meeting for approval.
6. In late 1989 or early 1990,
Harrison became Chairman of the Council.
He was also the City's representative to the Okaloosa County League of
Cities (League of Cities) and was the President of the Laurel Hill Volunteer
Fire Department which was under the supervision of the Council. As a result of his duties as a member of the
Council, representative to the League of Cities, and president of the volunteer
fire department, Harrison was required to travel.
7. In September and October,
1989, the Council engaged in a series of discussions concerning reestablishing
a police department. This was a
controversial issue and was the source of considerable debate and confrontation
in the community.
8. Harrison submitted an expense
reimbursement request for a trip on February 28, 1990, to the Florida
Department of Law Enforcement office in Pensacola, Florida. His reimbursement request was for $35.32,
which represented 157 miles at 22.5 cents per mile.
9. The council approved the
request for reimbursement, and Harrison received a check for $35.32.
10. An ethics complaint was
filed against Harrison, alleging
violations of Section 112.313(6), Florida Statutes, in connection with his travel reimbursement from the City. The Florida Commission on Ethics sent
Investigator Larry Hill to interview Harrison concerning the alleged
violations.
11. When Investigator Hill
questioned Harrison about the trip to FDLE in Pensacola, Harrison indicated
that he had gone to the FDLE office and talked to someone there.
Hill: You
just went down and talked to
someone at FDLE, there at the
office, the big office down there?
Harrison: Yes.
Yes, exactly right, we talked.
12. When Investigator Hill asked
Harrison why he went to the FDLE office, Harrison stated that he had received
anonymous, threatening telephone calls relating to a complaint that he had
filed against his predecessor on the Okaloosa County Commission, Ferrin
Campbell.
13. Investigator Hill made further
investigations and learned that Harrison never went to the FDLE office and that
Harrison filed his complaint against Mr. Ferrin almost a year after Harrison's
alleged trip to the FDLE office.
Investigator Hill issued his Report of Investigation on August 9, 1993,
including these findings. Harrison was
sent a copy of the Report of Investigation.
14. By letter dated August 17,
1993, Harrison notified the Commission on Ethics that he had intended to go to the FDLE office but changed his
mind and went to the University of West Florida Resource Library. However, he put on his expense report that
the trip was to FDLE because he wanted
people in the community to know that he had been in contact with the FDLE. Harrison did not clearly explain in his letter
what he was doing at the library.
15. At the final hearing,
Harrison stated that he went to the library to research the reestablishing of
the police department in Laurel Hill, and that he made a telephone call to FDLE
while at the library. He stated that he
had originally intended to go to FDLE because he had received threats
concerning the police department issue.
16. Having observed the demeanor
of Harrison and having judged Harrison's credibility, I find that his testimony
concerning doing research at the University of West Florida Resource Library
not to be credible.
17. On May 2, 1991, Harrison
submitted an expense reimbursement request to the City, which included a
request for mileage of 32 miles for a trip to the Supervisor of Elections
office in Crestview on April 19, 1991, and for mileage of 31 miles for a trip
to the Supervisor of Elections office in Crestview on April 25, 1991. The Council
approved his request and reimbursed him for the mileage at 20 cents per mile.
18. On June 6, 1991, Harrison
submitted a voucher for reimbursement of traveling expenses to the City, which
included a request for mileage reimbursement of 31 miles for a trip to the
Supervisor of Elections office on May 3, 1991.
The Council approved his request and reimbursed him for the mileage at
20 cents per mile.
19. His total reimbursement for
the three trips to the Supervisor of Elections office was $18.80.
20. On April 19, 1991 Harrison
went to the Supervisor of Elections office and filed a Statement of Financial
Interests 1990, an acknowledgement that he received a notice of the preelection
test of the voting equipment, a receipt for a copy of Chapter 106, and an Appointment of Campaign Treasurer.
21. On April 25, 1991, Harrison
went to the Supervisor of Elections office and filed a Statement of Candidate.
22. On May 3, 1991, Harrison
went to the Supervisor of Elections office and filed a Campaign Treasurer's
Report.
23. The documents which he filed
on April 19, April 25, and May 3 related to his campaign for reelection to the
Council.
24. When Investigator Hill
interviewed Harrison about the trips to the Supervisor of Elections Office,
Harrison told him that he did not have any documentation of the purpose of the
trips. When asked about the filing of the campaign documents, Harrison stated
that the reason for the trips was not entirely related to the filing of the
documents. He indicated that he may
have discussed the Sunshine Law with someone at the Supervisor of Elections
office.
25. Harrison did acknowledge
that he filed the campaign documents at the Supervisor of Elections office on
the dates at issue but he can not specifically recall what else he did there.
He speculates that he may have discussed the Data Vote machine and the uniform
election day issue with someone at the Supervisor of Elections office on those
dates but he is not sure. He also
thinks that he may have visited the Director of the County Emergency Medical
Service on May 3, in response to a request by the Council made at the Council
meeting on May 2, but he had no documentation of such a visit. Having judged the credibility of Harrison, I
find that his trips to Crestview on April 19, 25 and May 3, 1991 were for the
sole purpose of filing his campaign documents.
CONCLUSIONS OF LAW
26. 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.)
27. The burden of proof, absent
a statutory directive to the contrary, is on the party asserting the
affirmative of the issue of the proceedings.
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 its Advocate, that is asserting the
affirmative: that the Respondent twice
violated Section 112.313(6), Florida Statutes. Therefore, the burden of
establishing by a preponderance of the evidence the elements of the Respondent's
violation is on the Commission.
28. 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.
29. The term
"corruptly" is defined by Section 112.312(9), Florida Statutes, to
mean:
[D]one with a wrongful intent and for the purpose
of obtaining, or compensating or receiving compen-
sation for, any benefit resulting from some act or
omission of a public servant which is inconsistent
with the proper performance of his public duties.
30. In order for it to be
concluded that Respondent violated Section 112.313(6), Florida Statutes, the Advocate
must establish the following elements:
1. The
Respondent must have been a public
officer or employee.
2. The
Respondent must have:
(a) used or attempted to use his official
position or any property or resources within
his trust, or
(b) performed
his official duties.
3. The
Respondent must have acted to secure
a special privilege, benefit, or exemption for
himself or others.
4. In so doing,
the Respondent must have acted
corruptly, that is, with wrongful intent and for
the purpose of benefiting himself or another person
from some act or omission which was inconsistent
with proper performance of his public duties.
31. The parties have stipulated
that Harrison, as an elected member of the Council, was subject to the
requirements of Part III, Chapter 112, Florida Statutes.
32. The Advocate has established
by a preponderance of the evidence that Harrison violated Section 112.313(6),
Florida Statutes, when he submitted and received reimbursement for the alleged
trip to FDLE in Pensacola. Harrison
used his position as a Council member to secure reimbursement for travel
expenses which he did not incur in the performance of his duties as a Council
member.
33. Harrison knew that he did
not go the FDLE office, but stated on his expense submittal that he had gone to
FDLE so that the community would think that he had. He lied to Investigator Hill under oath when he indicated that he
had gone to the FDLE office. He told Investigator Hill that he went to FDLE
because he had received threats in connection with a complaint he had filed
against Mr. Ferrin. When Investigator
Hill could not confirm Harrison's explanation for the trip, Harrison changed
his story, saying that he went to the library and that he had intended to go to
FDLE because of threats he received in connection with the police department
issue. However, based on the minutes of
the Council meetings the heated discussions that took place concerning the
police department occurred in September and October, 1989. Its difficult to see why Harrison would have
received threats in early 1990 when the
controversy had occurred three or four months prior to that or if he did
receive threats in 1989 why he waited so long before he decided to contact the
FDLE. Based on the totality of these
factors, I conclude that Harrison did corruptly use his position as a member of the City Council to get
reimbursement for travel expenses which he did not incur.
34. The Advocate has established
by a preponderance of the evidence that Harrison violated Section 112.313(6),
Florida Statutes, when he requested and received reimbursement for travel
expenses in connection with his trips to the Supervisor of Elections Office on
April 19 and 25 and May 3, 1991.
Harrison did go to the Supervisor of Elections office on those dates for
the purpose of filing campaign documents related to his bid for reelection to
the Council which purpose he knew would not qualify as a public purpose for
travel reimbursement.
35. Travel for the purpose of
filing campaign documents is not an expense for which Harrison could receive
reimbursement pursuant to Section 112.061, Florida Statutes. Such expenses were incurred for his personal
benefit and were not incurred in the "performance of a public purpose
authorized by law to be performed by the agency." Section 112.061(3)(b), Florida Statutes. Harrison conceded at the final hearing that
filing campaign documents is not a public purpose.
36. There is no direct evidence
to establish that Harrison went to Crestview on the dates in question to do
anything but file the campaign documents. Harrison testified that he may have
gone to Crestview for other purposes which would qualify for travel
reimbursement as a public purpose, but he is not sure what he did on those
dates other than file the campaign documents.
Having judged Harrison's credibility, it is concluded that Harrison did
not make the trips to Crestview for a public purpose.
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
William "Bill" Harrison violated Section 112.313(6), Florida
Statutes, imposing a civil penalty of $1,000 per allegation for a total of
$2,000; requiring restitution of $52.12, and issuing a public censure and
reprimand.
DONE AND ENTERED this 7th day of December, 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 7th day of December, 1994.
APPENDIX TO RECOMMENDED
ORDER, CASE NO. 94-1787EC
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.
Paragraphs 1-3: Accepted.
Findings of Fact Based on Evidence At
Hearing.
1.
Paragraphs 1-4: Accepted in
substance.
2.
Paragraph 5: The last sentence
is rejected as
constituting argument. The
remainder is accepted in
substance.
3.
Paragraph 6: Accepted in
substance that Harrison's
explanation of his trip to Pensacola is not credible.
The remainder of the paragraph is rejected as
constituting argument.
4.
Paragraphs 7-8: Accepted in
substance.
5.
Paragraph 9: Accepted in
substance to the extent that
Harrison maintained that he could have been in Crestview
on City business but he does not remember exactly what
it was and speculates on what it may have been. The
remainder of the paragraph is rejected as constituting
argument.
6.
Paragraph 10: Rejected as
constituting argument.
7.
Paragraph 11: Accepted in
substance.
Respondent's Proposed Findings of
Fact
Stipulated Facts
1.
Paragraphs 1-3: Accepted.
Facts Based on the Record
1.
Paragraph 1: Accepted in
substance.
2.
Paragraphs 2-4: Rejected as subordinate to the facts
actually found.
3.
Paragraphs 5-8: Accepted in
substance.
4.
Paragraphs 9-14: Rejected as
subordinate to the facts
actually found.
5.
Paragraph 15: The first sentence is accepted in
substance as to 1989 but not as to early 1990 based on
the minutes of the Council meetings.
The second
sentence is accepted in substance.
6.
Paragraph 16: Accepted in
substance that Harrison
received threats concerning the police department issue
but rejected to the extent that these threats were
received in early 1990. The
minutes of the meetings
show that the police issue was discussed in the fall of
1989.
7.
Paragraph 17: Having judged the credibility of Harrison,
the paragraph is rejected .
8.
Paragraph 18: Accepted in
substance to the extent that
Harrison told Mr. Dunn that he had received threats and
that he had done some research at the library on police
issues, but rejected to the extent that it implies that
Dunn's testimony confirms that Harrison went to
Pensacola to the library on February 28, 1990, to do
research and that Harrison was going to the FDLE office
because he had recently received threats.
9.
Paragraph 19: The first sentence
is accepted in
substance. The remainder is
rejected as subordinate to
the facts actually found.
10.
Paragraph 20: Rejected as
constituting argument.
11.
Paragraph 21: The portion of the
first sentence that
Harrison did not go to FDLE is accepted in substance.
The portion of the first sentence that Harrison did
research is rejected as not credible.
The remainder of
the paragraph is rejected as constituting a conclusion
of law.
12.
Paragraph 22: Rejected as
constituting argument.
13.
Paragraph 23: The first and
second sentences are
accepted in substance. The
remainder of the paragraph
is rejected as constituting argument.
14.
Paragraphs 24-26: Rejected as
subordinate to the facts
actually found.
15.
Paragraphs 27-29: Rejected as
constituting argument.
COPIES FURNISHED:
Carrie Stillman
Complaint Coordinator
Commission on Ethics
Post Office Box 15709
Tallahassee, Florida 32317-5709
Marty E. Moore, Esquire
Advocate for the Commission
on Ethics
The Capitol, PL-01
Tallahassee, Florida 32399-1050
John C. Cooper, Esquire
COOPER, COPPINS & MONROE, P.A.
Post Office Drawer 14447
Tallahassee, Florida 32317-4447
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
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.