STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE
HEARINGS
IN RE:
DONALD JAEGER, CASE NO. 94-2502EC
Respondent.
________________________/
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 by video teleconference on December 20, 1994, in West Palm Beach, Florida.
APPEARANCES
For Advocate: Marty E. Moore,
Esquire
Attorney General's Office
PL-01, The Capitol
Tallahassee, Florida 32399-1050
For Respondent: Randall W.
Henley, Esquire
328 Banyan Boulevard, Suite C
West Palm Beach, Florida 33401
STATEMENT OF THE ISSUES
Whether Respondent violated Section 112.313(6), Florida Statutes, and if
so, what penalty should be imposed.
PRELIMINARY STATEMENT
On July 20, 1993, the Florida Commission on Ethics filed an Order of
Probable Cause finding that there was cause to believe that Respondent, Donald
Jaeger, violated Section 112.313(6), Florida Statutes, by using public
resources to write a paper for a class he was taking. The case was forwarded to the Division of Administrative Hearings
on May 5, 1994, for assignment to a hearing officer. The case was scheduled for hearing on August 19, 1994. On July 12, 1994, Respondent filed a Motion
for Continuance which was granted. The
hearing was rescheduled for December 20, 1994.
At the final hearing Joint Exhibits 1-4 were admitted in evidence. The Advocate called Carrie Parker and Fran
Sceblo as witnesses. Respondent
testified in his own behalf and called John Corbett and Robert Walshak as
witnesses. Respondent Exhibit 1 was
admitted in evidence. The parties stipulated
to the facts contained in paragraphs 1-13 of Section E of the Joint Prehearing
Stipulation.
At the final hearing the parties agreed to file their proposed
recommended orders on or before December 30, 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. From May 26, 1989 to
September, 1994, the Respondent, Donald Jaeger (Jaeger), was employed as the
Building Official for the City of Boynton Beach, Florida (City).
2. As part of Jaeger's
responsibilities he oversaw the zoning, construction, code enforcement and
occupational licensing for the City.
His job description stated that he would keep abreast of new changes in
applicable laws and regulations and recommend changes to the laws and
regulations for which the Building Official was responsible for enforcing. The City's building, licensing, and housing
codes are elements which affect affordable housing in the City.
3. In the fall semester of 1991,
Jaeger enrolled in an academic program leading to a doctorate degree in public
administration at Florida Atlantic University (FAU). He requested that the City pay for the course work. The City manager denied his request, stating
that the pursuit of a doctorate degree in public administration was not
applicable to being a building official.
4. During the fall semester of
1991, Jaeger took a course entitled State Government and Public Policy at FAU
taught by former Governor Reuben Askew.
5. For his State Government and
Public Policy Course, Jaeger wrote a research paper entitled "The Effect
of Government Regulation on Affordable Housing -- Competing Public Policy Objectives."
6. Jaeger dictated the original
draft of his research paper to his administrative assistant, Fran Sceblo, who
then typed it up, presented it to him for editing and retyped it whenever he
made corrections. She worked for
approximately two and half to three weeks on the report. During some of the time she shifted some her
work to others in the office so that she could finish the report.
7. Some of the dictation and
typing of Jaeger's research paper was done during regular Monday-through-Friday
work hours.
8. All dictation and typing of
the Respondent's research paper were done in City offices, on City equipment
and using City paper.
9. Jaeger provided the computer
disk upon which the work in progress and final product of his research paper
were stored.
10. Before beginning dictation,
Jaeger offered to pay Ms. Sceblo for working on his research paper, if she
worked outside her normal working hours.
11. On a few occasions, Ms.
Sceblo stayed in the office past five o'clock to work on Jaeger's research
paper.
12. Jaeger never paid Ms. Sceblo
for any of her work on his research paper.
13. On February 20, 1992, Jaeger
sent a letter to Samuel Gerace, along with a manuscript of his research paper,
offering that research paper for publication in Southern Building
Magazine. The paper was never
published.
14. Jaeger received a
satisfactory grade in his State Government and Public Policy course, and that
grade was based in part on his 16-page research paper.
15. Jaeger did not submit copies
of the paper to his colleagues on the City's staff, the City manager, or the
City commissioners.
16. Jaeger attended three
conferences concerning affordable housing prior to the time the research paper
was written. The cost for the
conferences and the cost of attending were paid by the City.
17. Jaeger had prepared other
school related reports using City resources, during business hours, with the
knowledge and permission of the City manager.
These reports reflected activities that were directly related to his
work with the City.
18. The research paper did have
some benefit to the City because the City did deal with issues dealing with affordable
housing and the City had evidenced its intention to have some of its employees,
including Jaeger, educated on the issues involving affordable housing.
19. There was no city policy
which would have prohibited Jaeger from researching the issue of affordable
housing and making a report on his research.
Jaeger's job description stated that the building official "has
wide latitude for exercise of independent jugment and use of delegated
authority, laws, regulations, codes, and ordinances applicable to Inspection
Division operations."
20. The cost of the time spent
by Jaeger and Ms. Sceblo on the paper was approximately $1,745.
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. 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).
22. 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
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.
23. 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.
24. 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 incon-
sistent with the proper performance of his public
duties.
25. 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.
26. The Advocate has failed to
establish by a preponderance of the evidence that Jaeger violated Section
112.313(6), Florida Statutes. In
Blackburn v. State, Commission on Ethics, 589 So.2d 431 (Fla. 1st DCA 1991),
the court reversed a finding of the Commission on Ethics that County
Commissioner Blackburn had violated Section 112.313(6), Florida Statutes, when
she had a county employee compile and draft an article on the county's garbage
collection ordinance, which article was later used by the Commissioner in her
reelection campaign. The court
concluded that the article served a dual purpose -- to inform the county
commissioner on an issue of vital importance to the county citizens and to
assist the commissioner in her reelection campaign. One of the purposes is a valid public purpose; thus the court
concluded that the Commissioner's personal use of the information in her campaign
did not constitute a violation of Section 112.313(6), absent competent
substantial evidence to support a finding that the commissioner's only purpose
in requesting the information was to use it in her reelection campaign.
27. In the instant case, the
City was interested in having its employees educated on the issues concerning
affordable housing. Jaeger had attended
at least three conferences on affordable housing at the expense of the
City. The paper itself did go into
areas which came under the jurisdiction of the Inspection Division and which
had some relationship to the issues related to affordable housing. Such areas included the cost of compliance
with building codes and its effect on the cost of single family dwellings and
the latitude of building officials in accepting alternative methods of
construction as a means of reducing the costs of housing. The building official's job description
gives the building official wide latitude in the operation of the Inspection
Division. Thus, the preparation of a
paper on the issue of affordable housing is not inconsistent with Jaeger's
proper performance of his duties as a building official. Jaeger's use of the paper in his coursework
does not make the preparation of the paper a violation of Section 112.313(6),
Florida Statutes.
RECOMMENDATION
Based on the foregoing Findings of Fact and Conclusions of Law, it is
RECOMMENDED that a final order be entered finding that Donald Jaeger did
not violate Section 112.313(6), Florida Statutes and dismissing the complaint
against Donald Jaeger.
DONE AND ENTERED this 30th day of January, 1995, 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 30th day of January, 1995.
APPENDIX TO RECOMMENDED
ORDER, CASE NO. 94-2502EC
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.
Stipulated Facts
1.
Paragraphs 1-13: Accepted.
Facts Based on Evidence Presented at
Hearing
1.
Paragraph 1: Accepted to the
extent that the City would
not pay for the coursework because it was not considered
applicable to a building official.
Rejected to the
extent that it implies that any project or report that
Jaeger may do during the coursework would also not be
applicable to the work of the building official.
2.
Paragraph 2: Accepted in
substance.
3.
Paragraph 3: The first sentence
is accepted in
substance. The second sentence
is rejected as
irrelevant.
4.
Paragraphs 4-6: Accepted in
substance.
5.
Paragraph 7: Rejected as
subordinate to the facts
actually found.
6.
Paragraph 8: Accepted in
substance.
7.
Paragraphs 9: Rejected as
subordinate to the facts
actually found.
8.
Paragraph 10: The last sentence
is accepted in
substance. The remainder is
rejected as subordinate to
the facts actually found.
9.
Paragraphs 11-13: Rejected as
constituting argument.
10.
Paragraph 14: The first sentence
is rejected as
subordinate to the facts actually found. The second
sentence is accepted in substance.
The third sentence
is rejected as subordinate to the facts actually found.
11.
Paragraphs 15-16: Rejected as
constituting argument.
12.
Paragraph 17: Accepted in substance.
13.
Paragraph 18: Rejected as
unnecessary.
Respondent's Proposed Findings of
Fact.
Stipulated Facts
1.
Paragraphs 1-13: Accepted.
Facts Based on Evidence Presented at
Hearing
1.
Paragraph 1: Rejected as
unnecessary.
2.
Paragraph 2: Accepted in
substance.
3.
Paragraphs 3-4: Accepted in substance.
4.
Paragraph 5: Rejected as
subordinate to the facts
actually found.
5.
Paragraph 6: The first sentence is accepted in
substance. The second sentence
is rejected as
irrelevant.
6.
Paragraph 7: Accepted in
substance.
7.
Paragraph 8: Accepted in
substance except as it relates
to Civil Service Rules. There
was no competent
substantial evidence to support such a finding as it
related to the Civil Service Rules.
8.
Paragraph 9: The portion
relating to the job
description is accepted in substance.
The remaining is
rejected as not supported by competent substantial
evidence.
9.
Paragraph 10: Rejected as
subordinate to the facts
actually found.
COPIES FURNISHED:
Kerrie Stillman
Complaint Coordinator
Commission on Ethics
Post Office Box 15709
Tallahassee, Florida 32317-5709
Marty Moore, Esquire
Department of Legal Affairs
The Capitol PL-01
Tallahassee, Florida 32399-1050
Randall Henley, Esq.
328 Banyan Boulevard, Suite C
West Palm Beach, Florida 33401
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.