STATE
OF FLORIDA
DIVISION
OF ADMINISTRATIVE HEARINGS
In Re:
ROBERT HOFFMAN CASE NO. 94-5835EC
________________________/
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 20 and 21, 1995, in Daytona Beach, Florida.
APPEARANCES
For Advocate: Virlindia Doss
Advocate for the Florida Commission
on Ethics
Attorney General's Office
The Capitol, PL-01
Tallahassee, Florida 32399-1050
For Respondent: Stephen Milbrath
Allen, Dyer, Doppelt, Franjola
and Milbrath, P.A.
225 South Orange Avenue, Suite 1401
Post Office Box 3791
Orlando, Florida 32802-3791
STATEMENT
OF THE ISSUES
Whether Respondent violated Section 112.313(6), Florida Statutes, and if
so, what penalty should be recommended.
PRELIMINARY
STATEMENT
On February 1, 1994, the Florida Commission on Ethics filed an Order
Finding Probable Cause to believe that Respondent, Robert Hoffman, as
Commissioner for the Deltona Fire District, violated Section 112.313(6),
Florida Statutes, by engaging in any or all of the instances of unwanted
touching, kissing, or sexually or romantically oriented remarks or conduct
alleged in the Complaint filed by Theresa Cresswell. The case was forwarded to the Division of Administrative Hearings
for assignment to a hearing officer on October 17, 1994. The final hearing was originally scheduled
for March 1-3, 1995. On February 10,
1995, Respondent filed a Motion for Continuance. The motion was granted and the final hearing was rescheduled for
June 20-22, 1995.
At the final hearing the Advocate called Theresa Cresswell and Robert
Rogers as witnesses. At the final
hearing the Respondent testified in his own behalf and called Don Helberg,
Joseph Warren, Robert Bell, Angel Velez, Annette Hoffman, Robert Rohm, Henry
Gilmore, Vincet Masci, Bert Brown, Jeffrey Cappe, John Tilson, Daniel Bowen,
Donald Sullivan, James Bruner, Daniel Simring, James Brown, and Jose
Alvarez. Respondent's Exhibits 9, 10,
15, 17, 18, 19a, 19d, 21, 39, 48, 52, 57, 59, 189, 192, 194, and 195 were admitted
in evidence.
FINDINGS
OF FACT
1. At all times pertinent to
this proceeding Respondent, Robert Hoffman, was a member of the Deltona Fire
District Commission. He was elected to
his office in the Deltona Fire District in November, 1992.
2. At all times pertinent to
this proceeding Theresa Cresswell was a dispatcher at the Deltona Fire
District. She served as dispatcher for
approximately eight years, leaving in January, 1995.
3. On April 30, 1993, Ms.
Cresswell filed Complaint No. 93-56 with the Florida Commission on Ethics,
alleging that Mr. Hoffman had touched and kissed her on January 20, 1993, and
on March 20, 1993. Ms. Cresswell also
alleges that in March, 1993, after she had spilled water on her blouse while
drinking from the water fountain that Mr. Hoffman said that he liked watching
her brush the water off her blouse.
JANUARY 20, 1993 INCIDENT
4. In December, 1992, Ms.
Cresswell organized a Santa Clause workshop for needy children. Mr. Hoffman had promised to provide candy
canes and build the workshop for the event.
He failed to keep his promise.
As a result, Ms. Cresswell had to purchase the candy.
5. On January 20, 1993, Ms.
Cresswell came to the Deltona Fire Station around 9:30 p.m. to pick up some
papers relating to her schoolwork. She
was not on duty. Mr. Hoffman was at the
fire station when she arrived.
6. Ms. Cresswell was upset with
Mr. Hoffman for his failure to provide the candy and build the workshop. She approached Mr. Hoffman in the reception
area while he was talking to Robert Bell and told Hoffman that she was
"pissed off at him." Mr.
Hoffman acknowledged that he knew that she was upset and that he was sorry that
he did not do what he had promised.
7. Ms. Cresswell alleges that
during the conversation Mr. Hoffman came to her, put his hand on her shoulder,
leaned against her, kissed her on her cheek and whispered in her ear, "I'm
sorry. Do your forgive me?" Ms. Cresswell's allegation that he whispered
in her ear was made known for the first time at the formal hearing. Mr. Hoffman asserts that he never touched or
kissed Ms. Cresswell on January 20, 1993.
8. Robert Bell, the dispatcher
who was on duty when the discussion between Ms. Cresswell and Mr. Hoffman took
place, observed the discussion and described Ms. Cresswell as being upset. He did not see Mr. Hoffman kiss Ms.
Cresswell on the evening of January 20, 1993.
9. Ms. Cresswell did not tell
Mr. Bell that Mr. Hoffman had kissed her.
Ms. Cresswell did not make a complaint to anyone about the January 20
incident until March, 1993. Fire Chief
Holland had been keeping notes about Mr. Hoffman's activities and he sent those
notes to the attorney for the fire district.
In those notes, he details a conversation that he had with Ms. Cresswell
concerning the January 20, 1993 incident.
There is no mention that Mr. Hoffman kissed Ms. Cresswell.
10. Having observed the demeanor
of the witnesses and having judged the credibility of the witnesses, I find
that Mr. Hoffman did not touch or kiss Ms. Cresswell on January 20, 1993.
THE WATER FOUNTAIN INCIDENT
11. On March 20, 1993, Mr.
Hoffman was attending an all day CPR class at the fire station. Ms. Cresswell was working dispatch on the
8:00 a.m. to 4 p.m. shift on that day.
12. Ms. Cresswell alleges that
she was drinking at the water fountain located in the hall of the fire station
down from the room in which the CPR class was being conducted. She spilled water on her blouse and was
brushing the water from her blouse when Mr. Hoffman came up to her and said,
"Can I watch you do that? I like
to watch you do that." Mr. Hoffman
contends that the incident never occurred.
13. There were no witnesses to
the alleged incident. Timothy Brown was
teaching the CPR class. He remembered
Mr. Hoffman as being the only male student in the class on that day. Mr. Brown does not recall Mr. Hoffman
leaving the classroom other than at the assigned breaks and at lunchtime. Mr. Brown was near the water fountain several
times during the day while he used a nearby copy machine and when he drank from
the fountain, but he did not see Mr. Hoffman and Ms. Cresswell together at the
water fountain.
14. When Ms. Cresswell
complained to Assistant Chief Rogers on March 22, 1993 about the alleged
incident of kissing which occurred either on the evening of March 20 or early
morning of March 21, she did not mention the water fountain incident which
allegedly occurred on March 20, 1993.
15. When Ms. Cresswell's
deposition was taken on April 12, 1993, three weeks after the alleged incident,
Ms. Cresswell could not recall when the water fountain incident took place.
16. Having observed the demeanor
of the witnesses and having judged the credibility of the witnesses, I find
that the water fountain incident did not occur and that Mr. Hoffman did not
say, "Can I watch you do that? I
like to watch you do that."
THE MARCH 20-21, 1993 INCIDENT
17. On the evening of March 20,
1993, Ms. Cresswell traded shifts with another dispatcher and reported to work
at approximately 11:50 p.m. to work the midnight to 8:00 a.m. shift. Robert Bell was working the dispatch when
she arrived. Mr. Hoffman was also at
the fire station.
18. Ms. Cresswell put away her
purse and made coffee. As part of her
duties on the midnight shift, she was responsible for erasing and rewinding the
911 dictaphone tapes. She went to the
communications center, which is located adjacent to the reception area, and
began to erase the tapes soon after her arrival at the fire station. While she was erasing the tapes, she, Mr.
Bell, and Mr. Hoffman began talking about a storm that evening which caused a
fire, destroying a local funeral home.
During the discussion about the fire, they started to talk about
cremation. Ms. Cresswell stated that
she did not want to be cremated.
19. Ms. Cresswell alleges that
after she made the remark about cremation that Mr. Hoffman came over to her,
put his hand on her shoulder, laughed, kissed her on the cheek, and said,
"I hear you." At the formal
hearing she could not recall whether Mr. Hoffman allegedly kissed her before or
after midnight. According to Ms. Cresswell, Mr. Hoffman and Mr. Bell continued
to talk about the funeral home after Mr. Hoffman kissed her. Additionally, Ms.
Cresswell asserts that after Mr. Bell left the fire station that Mr. Hoffman
stayed for approximately one and one half hours.
20. Mr. Hoffman contends that he
never touched or kissed Ms. Cresswell as she alleged and that he left the fire
station the same time as Mr. Bell.
21. During the conversation
concerning the funeral home, Mr. Bell was in and out of the communications
center. Mr. Bell did not see Mr.
Hoffman kiss Ms. Cresswell as she alleged.
Ms. Cresswell did not tell Mr. Bell that Mr. Hoffman had kissed her.
22. Ms. Cresswell did not
confront Mr. Hoffman concerning the alleged kiss.
23. Donald Allen Helberg, a
firefighter/EMT was present in the dispatch side of the fire station during the
late evening and early morning hours of March 20 and 21, 1993,
respectively. He saw Ms. Cresswell pull
into the parking lot when she came to work the midnight shift. Mr. Helberg recalled Ms. Cresswell joining
in the conversation that he, Mr. Hoffman and Mr. Bell were having. He also recalls seeing Mr. Bell head toward
the double doors leading to the outside followed by Mr. Hoffman. Mr. Helberg was also leaving at that time to
return to the firefighter section of the building. While he was present, Mr. Helberg did not see or hear anything
unusual involving Mr. Hoffman and Ms. Cresswell. Sometime after March 21, 1993, Ms. Cresswell called Mr. Helberg
and asked him if he remembered being present at the fire station on the night
of the alleged incident.
24. Mr. Bell left the fire
station approximately ten minutes after midnight. Mr. Hoffman was walking behind Mr. Bell as he walked out the
door. Mr. Hoffman was driving a red
Jimmy vehicle that night. As Mr. Bell
was driving out of the fire station parking lot, he observed a reddish vehicle
behind him. The reddish vehicle left
the parking lot after Mr. Bell, headed in the opposite direction.
25. Mr. Hoffman lived
approximately a mile and a half from the fire station. He arrived home at approximately fifteen
minutes after midnight. His wife was up
waiting for him when he got home.
26. Having observed the demeanor
of the witnesses and having judged the credibility of the witnesses, I find
that Mr. Hoffman did not touch or kiss Ms. Cresswell either on the evening of
March 20, 1993 or the morning of March 21, 1993.
CONCLUSIONS
OF LAW
27. 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").
28. 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 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 Hoffman violated
Section 112.313(6), Florida Statutes.
Therefore, the burden of establishing the elements of Hoffman's alleged
violation is on the Commission.
29. 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.
30. 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.
31. 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.
32. Mr. Hoffman was a public
officer subject to Part III, Chapter 112, Florida Statutes, and the parties
have so stipulated.
33. The Advocate has failed to
establish by a preponderance of the evidence that Mr. Hoffman touched or kissed
Ms. Hoffman as alleged in her complaint.
The Advocate has also failed to establish by a preponderance of the
evidence that Mr. Hoffman made the inappropriate remarks Ms. Cresswell alleged
happened during the water fountain incident.
Having failed to establish the alleged incidents occurred, the Advocate
has failed to establish that Mr. Hoffman violated 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 dismissing Complaint No. 93-56
against Robert Hoffman.
DONE AND ENTERED this 12th day of September, 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 12th day of
September, 1995.
APPENDIX
TO RECOMMENDED ORDER, CASE NO. 94-5835EC
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 1-2: Accepted.
Findings of Fact
1. Paragraphs 1-3: Accepted in substance.
2. Paragraph 4: The first two sentences are accepted in
substance. The last sentence is
rejected as not
supported by the greater weight of the evidence.
3. Paragraph 5: Accepted in substance.
4. Paragraphs 6-7: Rejected as not supported by the
evidence.
5. Paragraph 8: Accepted in substance except as to the
occurrence of the water fountain incident.
6. Paragraph 9: Accepted in substance.
7. Paragraph 10: The last sentence is rejected as not
supported by credible evidence.
The remainder is
accepted in substance.
8. Paragraph 11: Accepted that it is what Ms. Cresswell
alleges but rejected as to that is what happened based
on the credible evidence.
9. Paragraph 12: The first part of the first sentence is
accepted in substance. The last
part of the first
sentence is rejected as not supported by the evidence.
Mr. Bell did not see Mr. Hoffman and Ms. Cresswell the
entire time but that does not mean that he wasn't paying
attention to them during the time that he did see them.
The remainder is rejected as unnecessary.
10. Paragraph 13: Rejected as not supported by credible
evidence.
11. Paragraphs 14-15: Rejected as subordinate to the facts
found.
12. Paragraph 16: Rejected as subordinate to the facts
found as to what Ms. Cresswell believed. Rejected as
not supported by the evidence as to what Mr. Hoffman
believed.
13. Paragraph 17: The first two
sentences are rejected as
subordinate to the facts found.
The last sentence is
rejected as not supported by the evidence.
Respondent's Proposed Findings of Fact.
1. Paragraphs 1-2: Accepted.
2. Paragraphs 3-5: Rejected as unnecessary.
3. Paragraphs 6-7: Accepted in substance.
4. Paragraph 8: Accepted in substance as that is what Ms.
Cresswell contended.
5. Paragraphs 9-10: Rejected as unnecessary.
6. Paragraph 11: Accepted in substance.
7. Paragraph 12: Rejected as unnecessary.
8. Paragraph 13: Accepted in substance.
9. Paragraph 14: The first sentence is accepted in
substance. The second sentence is rejected as
unnecessary.
10. Paragraphs 15-17: Accepted in substance.
11. Paragraphs 18-19: Accepted that it was what Ms.
Cresswell contended but rejected as not supported by
credible evidence that it was what happened.
12. Paragraph 20: Accepted in substance.
13. Paragraph 21: Accepted to the extent that it is Ms.
Cresswell's testimony.
14. Paragraphs 22-25: Rejected as subordinate to the facts
found.
15. Paragraph 26: Accepted in substance.
16. Paragraph 27: Rejected as unnecessary.
17. Paragraphs 28-30: Accepted in substance.
18. Paragraphs 31-33: Rejected as subordinate to the facts
found.
19. Paragraphs 34-37: Accepted in substance.
20. Paragraph 38: The first sentence is rejected as
unnecessary. The last sentence is accepted in
substance.
21. Paragraph 39: The first sentence is accepted in
substance as that was what was alleged.
The second
sentence is accepted in substance.
22. Paragraphs 40-43: Accepted in substance as that is
what was alleged.
23. Paragraph 44: Accepted in substance.
24. Paragraph 45: Accepted in substance as that is what
was alleged.
25. Paragraphs 46-47: Accepted in substance.
26. Paragraphs 48-49: Rejected as subordinate to the facts
found.
27. Paragraphs 50-51: Accepted in substance.
28. Paragraph 52: Rejected as unnecessary.
29. Paragraphs 53-56: Accepted in substance.
30. Paragraph 57: Rejected as unnecessary.
31. Paragraph 58-60: Accepted in substance.
32. Paragraph 61: The first sentence is accepted in
substance. The remainder is
rejected as unnecessary.
33. Paragraph 62: Rejected as unnecessary.
34. Paragraph 63: Accepted in substance.
35. Paragraph 64: Accepted in substance as that was what
was alleged.
36. Paragraph 65: Rejected as constituting argument.
37. Paragraphs 66-67: Accepted in substance.
38. Paragraph 68: Accepted in substance.
39. Paragraphs 69-7O: Accepted in substance that the
dictaphone equipment is located in the communications
center. The remainder is
rejected as unnecessary.
40. Paragraph 71: Accepted in substance that she made
those allegations.
41. Paragraphs 72-74: Accepted in substance.
42. Paragraphs 75-76: Rejected as not supported by
credible evidence as that was what happened.
43. Paragraph 77: Accepted in substance to the extent that
Mr. Bell was not watching Mr. Hoffman and Ms. Cresswell
the entire time of the conversation.
44. Paragraphs 78-79: Rejected as unnecessary.
45. Paragraphs 80-81: Accepted in substance.
46. Paragraph 82: Accepted to the extent that she did not
tell Mr. Bell of the kissing incident; otherwise
rejected as not supported by the greater weight of the
evidence or unnecessary.
47. Paragraphs 83-84: Rejected as unnecessary.
48. Paragraph 85: The first sentence is accepted to the
extent that it is Ms. Cresswell's testimony. The last
sentence is rejected as subordinate to the facts found.
49. Paragraph 86: Accepted in substance that it was her
testimony.
50. Paragraph 87: Rejected as unnecessary.
51. Paragraph 88: The first sentence is accepted in
substance. The remainder is
rejected as unnecessary.
52. Paragraph 89: Accepted in substance.
53. Paragraphs 90-99: Rejected as unnecessary.
54. Paragraph 100: Accepted to the extent that he saw Bell
heading toward the outside door, followed by Hoffman as
Helberg was leaving to go to the firefighter side of
the building.
55. Paragraphs 101-104: Accepted in substance.
56. Paragraph 105: Rejected as subordinate to the facts
found.
57. Paragraphs 106-107: Accepted in substance.
58. Paragraph 108: Rejected as unnecessary.
59.
Paragraphs 109-111: Accepted in
substance.
60. Paragraphs 112-116: Rejected as unnecessary.
61. Paragraph 117: Rejected as constituting argument.
62. Paragraphs 118-125: Accepted in substance.
63. Paragraphs 126-127: Rejected as unnecessary.
64. Paragraphs 128-130: Rejected as constituting argument.
65. Paragraphs 131-133: Rejected as unnecessary.
66. Paragraph 134: Rejected as constituting argument.
67. Paragraphs 135-137: Rejected as unnecessary.
68. Paragraphs 138-155: Rejected
as constituting argument.
69. Paragraphs 156-262: Rejected as unnecessary.
70. Paragraph 263: Rejected to the extent that it implies
that there was a conspiracy. The
evidence does not
support a conclusion of conspiracy among Mr. Holland,
Mr. Rogers, and Ms. Cresswell.
71. Paragraphs 264-288: Rejected as unnecessary.
72. Paragraphs 289-290: Rejected as not supported by the
evidence.
COPIES FURNISHED:
Carrie Stillman
Complaint Coordinator
Commission on Ethics
Post Office Box 15709
Tallahassee, Florida 32317-5709
Virlindia Doss, Esquire
Advocate For the Florida
Commission on Ethics
Department of Legal Affairs
PL-01, The Capitol
Tallahassee, Florida 32399-1050
Stephen D. Milbrath, Esquire
Alan, Dyer, Doppelt, Franjola & Milbrath
Post Office Box 3791
Orlando, Florida 32802-3791
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.