STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

IN RE: BARRY A. ADRIANCE, )

) CASE NO. 93-1259EC

Respondent. )

_________________________________)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Mary Clark, held a formal hearing in the above-styled case on September 17, 1993, in West Palm Beach, Florida.

APPEARANCES

For Advocate: Virlindia Doss, Esquire

Assistant Attorney General

Department of Legal Affairs

The Capitol, PL-01

Tallahassee, Florida 32399-1050

For Respondent: Gene "Hal" Johnson, Esquire

General Counsel

Florida Police Benevolent Association

300 East Brevard Street

Tallahassee, Florida 32301

STATEMENT OF THE ISSUES

On September 10, 1992, the State of Florida Commission on Ethics issued an order finding probable cause that Respondent, as a Law Enforcement Airplane Pilot II with the Florida Highway Patrol, violated sections 287.17(1) and 112.313(6), F.S., by inviting or allowing persons not traveling on official state business to fly as passengers on a state aircraft piloted by Respondent.

The issue here is whether those violations occurred, and if so, what discipline or penalty is appropriate.

PRELIMINARY STATEMENT

On March 2, 1993, the Executive Director of the Commission on Ethics forwarded this case to the Division of Administrative Hearings for conduct of a public hearing and for a recommended order.

At the hearing, the Advocate called two witnesses, Major David Payton and Major Charles M. Bitzer, and offered the following documents:

1) Respondent's sworn statement of October 7, 1991;

2) Respondent's sworn statement of November 13, 1991;

3) State of Florida, Department of General Services Special Purpose Aircraft Flight Record No. 17441 (March 24, 1989);

4) State of Florida, Department of General Services Special Purpose Aircraft Flight Record No. 17444 (April 5 - July 1989);

5) State of Florida, Department of General Services Special Purpose Aircraft Flight Record No. 17447 (April 16, 1989);

6) State of Florida, Department of General Services Special Purpose Aircraft Flight Record No. 17449 (April 18-21, 1989);

7) State of Florida, Department of General Services Special Purpose Aircraft Flight Record No. 17506 (September 26-27, 1989);

8) State of Florida, Department of General Services Special Purpose Aircraft Flight Record No. 20579 (November 9-11, 1990);

9) State of Florida, Department of General Services Special Purpose Aircraft Flight Record No. 10776 (October 12, 1989);

10) State of Florida, Department of General Services Special Purpose Aircraft Flight Record No. 16332 (January 18, 1991);

11) Florida Highway Patrol Aviation Unit Operations Manual (1988 Revision) Table of Contents and pp. 5-12, 5-14;

12) Deposition Statement of Paul Taylor;

13) Deposition Statement of Charles C. Hall; and

14) Sworn Statement of James Amodeo taken October 24, 1991.

Exhibits 3-13 were accepted into evidence without objection. Exhibits 1 and 2 were objected to by the Respondent and were marked for identification subject to a ruling on admissibility. The exhibits are transcripts of interviews with the Respondent, which relate, in part, to the same acts which underlie the allegations here. As such they are relevant. These statements are admitted as hearsay exceptions pursuant to section 90.803(18), F.S. Exhibit 14 was offered for impeachment and, after an initial indication of admissibility, an objection made by the Respondent was sustained. It is marked for identification only.

The Respondent testified in his own behalf and called one witness, James Amodeo.

The Respondent also submitted the following exhibits which were received without objection:

1) Certificate of Training: Aerial Law Enforcement Surveillance Techniques; Kathleen S. Greenwood, March 15, 1989; and

2) Letter of March 19, 1990, to Major Dave Payton from Lieutenant Barry Adriance.

The transcript of hearing was filed and each party submitted proposed recommended orders. The findings of fact proposed by each are addressed in the attached appendix.

FINDINGS OF FACT

Stipulated Facts

In a prehearing conference, the Advocate for the Commission and the attorney for Adriance entered into and filed with the hearing officer, the following factual stipulations:

1. At all times pertinent to this Complaint, Respondent was employed as a Law Enforcement Airplane Pilot II with the Florida Highway Patrol and was Chief Pilot of the Florida Highway Patrol.

2. At all times pertinent to the allegations contained in this Complaint, Kathleen Greenwood was an employee of the Florida Highway Patrol and a member of the Florida Highway Patrol Auxiliary.

3. At all times pertinent to the allegations contained in this Complaint, James Amodeo was an inmate in custody of the Florida Department of Corrections housed at the Loxahatchee Road Prison in West Palm Beach and a trustee assigned to assist the Florida Highway Patrol.

4. The Department of Corrections released prisoners on low security trustee status to the Florida Highway Patrol to serve in various unskilled labor capacities. One of the terms of this arrangement was that prisoners would not be left unsupervised, and Respondent was aware of this requirement.

5. On October 12, 1989 and January 18, 1991, Respondent invited or allowed James Amodeo to fly with him in a state aircraft.

6. Between March 1989 and November 1990, Respondent invited or allowed Kathleen Greenwood to fly with him in a state aircraft on a number of occasions, six of which are at issue in this Complaint.

7. The Comptroller's Office has calculated that the cost for Ms. Greenwood and Mr. Amodeo to travel on these flights totaled $780.38. [As stipulated at hearing, the amount reflected is not an additional cost over and above the normal operation of the aircraft but is derived by dividing the number of passengers on the aircraft by the hourly rate of operating the aircraft.]

8. Respondent was aware that Florida Highway Patrol policy required that he list all passengers in the state aircraft on State of Florida, Department of General Services Special Purpose Aircraft Flight Records.

9. The flights taken by Barry Adriance and documented in Advocate's Exhibits 3-10 were for justified business reasons, and Adriance performed the duties of a pilot related to those flights, except in some instances failing to list all passengers on the flights.

Findings of Fact Based on the Record

10. At the time of the conduct in question, Barry Adriance had served with the Florida Highway Patrol for approximately nineteen (19) years. In 1980 Adriance was assigned as a pilot by the Patrol. In 1986, Adriance became the Patrol's chief pilot.

11. As a pilot with the Florida Highway Patrol, Adriance was required to work traffic on the highways, conduct surveillance of individuals and stolen vehicles, search for marijuana fields, relay information related to traffic control and disabled vehicles, and transport individuals as directed by the Patrol.

12. When Adriance became chief pilot, he assumed various administrative and supervisory responsibilities for the Florida Highway Patrol flight program. The duties included responsibility for training of pilots and observers. Adriance was also responsible for the initiation of flight programs for the Patrol such as its "Lowjack" program for tracking stolen vehicles and a disabled vehicle patrol program.

13. Adriance flew Florida Highway Patrol aircraft on patrol duties almost daily. He was stationed in West Palm Beach and operated out of a facility shared with the Palm Beach County Sheriff's Office commonly known as "Eagle Base."

14. When Adriance became a chief pilot he was assigned the development of the Florida Highway Patrol Aviation Unit Operations Manual, including the passenger/observer program outlined in Sections A.U. 5.09.00-A.U. 5.09.02 of the manual. The passenger/observer program was established as a safety program after various officials, including representatives of the Federal Aviation Authority, expressed concern that the duties of the Patrol pilots while in the air might keep them from observing other air traffic in their air space.

15. The Florida Highway Patrol observer program had two types of participants: (1) those individuals who received formal training, such as other law enforcement personnel and Florida Highway Patrol Auxiliary members, and who flew for a specifically assigned purpose, and (2) those individuals who received informal training, such as private citizens or fellow Patrol employees, and who flew essentially to provide an additional margin of safety for the pilots.

16. The individuals who served as observers in order to provide the pilots an additional margin of safety did not normally receive formal training. These individuals were generally instructed by the pilot at the time of the flight to observe the air space around the aircraft and report any other aircraft or unusual activity in the area.

17. The observer program was fully approved by the Florida Highway Patrol, and the use of observers was largely a matter of pilot discretion. Adriance was an enthusiastic supporter of the program as he had experienced a couple of near collision incidents while flying alone.

18. In addition to the observer program, the Florida Highway Patrol Aviation Unit Operations Manual authorized individuals to fly in Patrol aircraft as crew members if the individuals had specific task assignments or assisted the pilot in performing assigned tasks.

19. The Florida Highway Patrol Aviation Unit Operations Manual (1988 Revision) provides in pertinent part, as follows:

A.U. 5.09.00 Passengers on Division Aircraft.

The pilot shall not engage the Division Aircraft in

passenger transportation without approval or request by

an Inspector, or higher ranking officer within the

Department.

Transportation flights are defined as flights for the

sole purpose of transporting passengers from one point

or location to another. This is not to be confused

with any passenger acting as a crew member and on board

to complete a task or assignment which requires more

than the pilot to complete. EXAMPLE: A Division

employee to act as observer or photographer.

* * *

A.U. 5.09.02 Passengers/Observers on Board Division

Aircraft.

The Troop Commander or the Chief Pilot may authorize

the acceptance of passenger/observers on board

Division aircraft providing the observer is over the

age of eighteen (18), in good physical health, and

necessary for the safe completion of the mission.

The purpose of observing the flight or acting as a

crew member is to enhance the safety of the flight.

All passengers/observers, except department employees

or FHPA members, must sign a covenant not to sue waiver

prior to any flight in Division aircraft.

Pilots may allow bona fide members of the press,

judges, or FAA personnel on board for the purpose

of observing methods of operation and surveillance,

providing the pilot has prior approval from their

[sic] respective Troop Commander or the Chief Pilot.

Pilots may allow members of the Florida Highway

Patrol Auxiliary or other bonded law enforcement

officers on board the Division aircraft in operation

where the auxiliary member or other law enforcement

officer would enhance the safety of the operation.

In all cases, authority must be obtained from the

Troop Commander or Chief Pilot prior to accepting

passengers/observers...In all cases, any passenger/

observer riding in a Department owned aircraft will

be appropriately logged on the daily DOS trip log.

(Advocate's Ex. #11, emphasis in original)

20. During Adriance's service as chief pilot, the Florida Highway Patrol used trustees assigned from the Florida Department of Corrections to work at its aircraft facility in West Palm Beach. The trustees assigned to Eagle Base performed many duties for the Patrol including fueling of aircraft, maintenance of the aircraft area, and loading of aircraft cargo. On occasion the trustees would fly in the aircraft to assist in the placement and measurement of aircraft check zones on all roadways in the State of Florida between Key Largo and Ocala. The trustees would also fly with the aircraft for safety purposes.

21. James Amodeo was a trustee with the Florida Department of Corrections during the time period of October 1989 through January 1991, and occasionally worked under the supervision of Adriance at Eagle Base. During the same time period, Amodeo worked and flew with several other law enforcement agencies in the Palm Beach area. Amodeo does not like to fly.

22. On two (2) occasions during this period Amodeo flew with Adriance. The first aircraft trip on which Amodeo accompanied Adriance was from West Palm Beach to Ocala, Florida. The purpose of the trip was two-fold: (1) to relay certain camera equipment between Tallahassee and Palm Beach, and (2) to pick up line painting material.

23. Amodeo performed several useful functions on the trip including serving as an observer and assisting in the loading of heavy cargo. He also served as an additional safety factor by monitoring the heavy cargo to ensure it did not shift while the aircraft was in flight.

24. The second aircraft trip on which Amodeo flew with Adriance was from West Palm Beach to Key West, Florida. The purpose of the trip was to measure aircraft speed check zones in the area. Amodeo was to assist Adriance in checking the measurements and loading heavy equipment. During the flight Amodeo became sick and was temporarily left at the Key West airport. While he was left at the airport Amodeo wandered the beach in the vicinity of the airport. Because of conditions beyond Adriance's control, the assignment was cancelled. Adriance and Amodeo then returned to West Palm Beach.

25. Kathleen Greenwood was chief dispatcher with the Florida Highway Patrol in 1989. She was also a member of the Florida Highway Patrol Auxiliary and a certified observer for the Patrol.

26. In early 1989, Adriance and Greenwood developed a personal relationship. The relationship occurred during a time when Adriance was separated from his spouse and it lasted for approximately 1 1/2 years. The relationship was common knowledge within the Florida Highway Patrol and was conducted openly.

27. On at least six (6) occasions between the period of March 24, 1989 through November 11, 1990, Greenwood flew in a Florida Highway Patrol aircraft piloted by Adriance. Greenwood accompanied Adriance on the flights at her request and with Adriance's approval. She served as an observer on these flights and on several occasions had specifically assigned tasks such as fulfilling her auxiliary duties, "Lowjack" training, logging of navigational charts or working on establishment of a CAD (computer-aided dispatch) program. Because of their personal relationship, Adriance enjoyed having Greenwood accompany him as an observer.

28. Adriance admittedly used bad judgement in taking Amadeo on flights. Although the operations manual did not prohibit the use of prison trustees as observers or crew members, the program was not intended to include them. Knowing that the practice of including trustees could be criticized, Adriance sometimes intentionally failed to list them on his flight log.

29. Adriance also regrets taking Greenwood on flights, not because she was not otherwise fully qualified, but because of the disastrous effect on Adriance's personal and professional life occasioned by his relationship with a co-worker.

CONCLUSIONS OF LAW

30. The Division of Administrative Hearings has jurisdiction in this proceeding pursuant to section 120.57(1), F.S.

31. 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 So2d 778 (Fla. 1st DCA 1981); and Balino v. Department of Health and Rehabilitative Services, 348 So2d 249 (Fla. 1st DCA 1977). In this proceeding, it is the Commission, through the Advocate, that is asserting the affirmative: that Respondent violated Sections 112.313(6) and 287.17, F.S. Therefore, the burden of proving the elements of Respondent's alleged violations was on the Commission.

32. The standard of proof in cases before the Ethics Commission requires proof of the charges by a preponderance of the evidence. In re Michael Langton, 14 F.A.L.R. 4175 (Ethics 1992). See also In re Leo C. Nichols, 11 F.A.L.R. 5234 (Ethics 1989).

33. Section 287.17(1), F.S., provides as follows:

The aircraft and motor vehicles owned, leased,

or operated by any state agency shall be available

for official state business only as authorized by

agency heads.

Section 112.313(6), F.S., provides as follows:

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.

34. "Corruptly" is defined in section 112.312(7), F.S. as:

...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.

35. Section 287.175, F.S., provides the Commission on Ethics' jurisdiction with regard to a violation of section 287.17, F.S., as follows:

287.175 Penalties.--A violation of this part or a rule

adopted hereunder, pursuant to applicable

constitutional and statutory procedures, constitutes

misuse of public position as defined in s. 112.313(6),

and is punishable as provided in s. 112.317. The

Comptroller shall report incidents of suspected misuse

to the Commission on Ethics, and the commission shall

investigate possible violations of this part or rules

adopted hereunder when reported by the Comptroller,

notwithstanding the provisions of s. 112.324. Any

violation of this part or a rule adopted hereunder

shall be presumed to have been committed with wrongful

intent, but such presumption is rebuttable. Nothing in

this section is intended to deny rights provided to

career service employees by s. 110.227.

This provision also skews the general burden of proof described in paragraph 31, above.

36. As stipulated by the parties, the Respondent was a public employee and was subject to the Code of Ethics at all times pertinent to the complaint in this proceeding.

37. The flights on which Adriance was accompanied by Greenwood or Amodeo were for justified business reasons and Adriance performed all duties of a pilot related to those flights. Florida Highway Patrol policy authorized Adriance to have companions on such flights. Adriance's conduct was clearly not inconsistent with the proper performance of his public duties and he properly performed his duties during the flights.

38. The record evidence establishes that Greenwood and Amodeo were brought to provide useful services during the flights and generally served the purposes contemplated by the policy of the Florida Highway Patrol. The fact that Adriance may have received the incidental benefit of the companionship of Greenwood or Amodeo during the trips is not significant. Blackburn v. State, Commission on Ethics, 589 So2d 431, 435-436 (Fla. 1st DCA 1991)

39. The evidence, considered as a whole, failed to establish that Adriance's motives were "corrupt". To the extent required by section 287.175, F.S., he effectively rebutted any presumption that he wrongfully intended a violation of section 287.17(1), F.S. He used inordinately bad judgement; he clearly violated other policies with regard to maintining proper logs; but according to the greater weight of evidence, he did not violate sections 287.17(1), or 112.313(6), F.S.

RECOMMENDATION

Based on the foregoing, it is, hereby,

RECOMMENDED:

That the Commission on Ethics enter its final order dismissing the complaint and finding no violation of section 287.17(1), F.S. or section 112.313(6), F.S., by Respondent, Barry A. Adriance.

DONE AND RECOMMENDED this 3rd day of March, 1994, in Tallahassee, Leon County, Florida.

___________________________________

MARY CLARK

Hearing Officer

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904)488-9675

Filed with the Clerk of the

Division of Administrative Hearings

this 3rd day of March, 1994.

APPENDIX TO RECOMMENDED ORDER, DOAH CASE NO. 93-1259EC

The following constitute specific rulings on the findings of fact proposed by the parties:

The Advocate's Proposed Findings

A. 1. Adopted in paragraph 1.

2. Adopted in paragraphs 14. and 9.

3. Adopted in substance in paragraphs 16. and 17.

4. Adopted in substance in paragraph 8.

5. Rejected as unnecessary and immaterial.

B. 1. Adopted in paragraph 3.

2. Rejected as unnecessary and immaterial.

3. Adopted in paragraph 4.

4. Rejected as unnecessary and immaterial.

(no 5. provided)

6. Rejected as unnecessary and immaterial. To the extent that it is offered to prove motive, it fails. The greater weight of evidence established that Adriance and Amodeo were not friends and Adriance was not taking Amodeo on flights as a favor to him.

7. Adopted in paragraph 5.

8. Adopted in paragraph 28.

9.-10. Adopted in substance in paragraph 24.

11. Rejected. The testimony was generally credible, albeit self-serving, and the perceived inconsistencies were generally credibly explained. For example, the Key West airport is near the water and he wandered around the vicinity of the airport.

12. Adopted in paragraph 28.

C. 1. Adopted in paragraph 2.

2. Adopted in paragraph 26.

3. Adopted in paragraph 27.

4.-6. Rejected as immaterial and unnecessary.

D. 1. Adopted in paragraph 9.

2. Rejected as contrary to the greater weight of evidence (as to the implication that Adriance had improper motives).

(no paragraph 3)

4. Adopted in substance in paragraph 28, as to the first two sentences; otherwise rejected (as to motive) as contrary to the weight of evidence.

5. Rejected as contrary to the weight of evidence; moreover, the incidental benefit does not supply the requisite "corrupt" intent. See, Blackburn, supra, conclusion of law, paragraph 38.

Findings of Fact Proposed by Respondent

1.-18. Adopted in paragraphs 1.-18., respectively.

19. Adopted in paragraph 20.

20. Adopted in paragraph 25.

21-23. Adopted in paragraphs 26.-27., in substance.

24. Rejected as cummulative.

28. Adopted in substance in paragraphs 21.-24., respectively.

29. Rejected as cummulative.

30. Adopted in paragraph 28.

COPIES FURNISHED:

Virlindia Doss, Esquire

Department of Legal Affairs

Ethics Commission

The Capitol, PL-01

Tallahassee, Florida 32399-1050

Gene "Hal" Johnson, General Counsel

Florida Police Benevolent Association, Inc.

Post Office Box 11239

Tallahassee, Florida 32302

Bonnie Williams, Executive Director

Commission on Ethics

P.O. Drawer 15709

Tallahassee, Florida 32317-5709

Phil Claypool, General Counsel

Commission on Ethics

P.O. Drawer 15709

Tallahassee, Florida 32317-5709

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.