STATE
OF FLORIDA
DIVISION
OF ADMINISTRATIVE HEARINGS
In Re:
LAWRENCE R. HAWKINS, ) CASE
NO. 94-4715EC
__________________________________)
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 May 22-24, 1995, in Miami, Florida.
APPEARANCES
For Advocate: Virlindia Doss,
Esquire
Advocate for the Florida Commission
on
Ethics
Attorney General's Office
PL-01, The Capitol
Tallahassee, Florida 32399-1050
For Respondent: Rauol Cantero,
Esquire
Adorno and Zeder, P.A.
2601 South Bayshore
Drive
Miami, Florida 33133
STATEMENT
OF THE ISSUES
Whether Respondent violated Sections 112.3148(2)(a) and 112.313(6),
Florida Statutes, and if so, what penalty should be imposed.
PRELIMINARY
STATEMENT
On June 7, 1994, the State of Florida Commission on Ethics issued an
Order Finding Probable Cause to believe that Respondent, Lawrence Hawkins,
violated Section 112.3148(2)(a), Florida Statutes, by failing to report a trip
to New Orleans on his 1990 financial disclosure; Section 112.313(6), Florida
Statutes, by using his position to try to generate business for Seitlin and
Company, an insurance company which employed him as a paid consultant; Section 112.313(6), Florida Statutes, by
using public resources in furtherance of his work for Seitlin; Section
112.313(6), Florida Statutes, by using his position to secure a special benefit
for the Dade County Easter Seals Society; and Section 112.313(6), Florida
Statutes, by using his position to sexually harass his subordinate female
employees. On August 26, 1994, the case
was forwarded to the Division of Administrative Hearings for assignment to a
hearing officer to conduct a public hearing.
The case was scheduled for hearing for March 13-17, 1995. A Joint Motion for Continuance was filed on
January 17, 1995. The motion was
granted and the hearing was rescheduled for May 22-26, 1995.
At the final hearing the Advocate called the following witnesses: Helene Goode, Joan Bornstein, John Fox, Lynn
Solte, Mary DiFede DelPino, Richard Johnson, Brodis Hartley, Rashel Nudelman,
Marcia Fernandez-Morin, Sylvia Farina, Lilly Abello, Jackie Salazar Bofill,
Alicia Marquez, Rosa Proenza, Kim Sorondo, and Al Calli. Advocate's Exhibits 1-10 were admitted in
evidence. At the final hearing,
Respondent testified in his own behalf and called the following witnesses: Joan Bornstein, Richard Johnson, Sylvia
Farina, Debra Mayo, Yanette Bravo, Frances Pons, Carolyn Hawkins, Kevin Stein,
and Harvey Ruvin. Respondent's Exhibits
1-4 were admitted in evidence.
At the close of the testimony, the Advocate declined to order a
transcript. The Respondent requested
and was given until May 26 to decide whether to order all or a portion of the
testimony transcribed. The proposed
recommended orders were due to be filed within 30 days of the date of the
filing of the transcript. On July 7,
1995, no transcripts having been filed, the Advocate moved to compel the
Respondent to file any portions of the transcript which he intended to file. An order was issued requiring Respondent to
file any portions of the transcript which were in his possession, and the
parties were ordered to file proposed recommended orders by August 11,
1995. On July 12, transcripts of
portions of the hearing were filed. On
August 2, 1995, additional portions of the transcript were filed, and on
September 11, 1995, the transcript of the testimony of Debra Mao, Ynette Bravo,
and Francis Ponz was filed.
The parties filed their proposed recommended orders on August 11,
1995. On August 15, 1995, the Advocate
filed a Motion to Permit Amendment of Proposed Recommended Order, stating that
she had not been advised that additional portions of testimony had been filed
with the Division of Administrative Hearing on August 2, 1995, and
respresenting that Respondent had no objection to the granting of the
motion. The Advocate's motion was
granted and the time for filing an amendment was extended to August 21. The Advocate filed an amended proposed
recommended order on August 17, 1995.
The parties' proposed findings of fact are addressed in the Appendix to
this Recommended Order.
FINDINGS
OF FACT
1. Respondent, Lawrence R.
Hawkins (Hawkins) took office as a Dade County Commissioner on October 18,
1988, and served until November, 1994, when he lost his bid for
reelection. At all times pertinent to
the instant Complaint, Hawkins was a member of the Dade County Commission.
2. Hawkins became aware of the
Code of Ethics (Part III of Chapter
112, Florida Statutes) while he was a member of the Florida House of
Representatives from 1978 to 1986.
Based on his general experience, Hawkins is basically familiar with the
Code of Ethics as it relates to misuse of office, conflict of interest, and
nepotism.
THE NEW ORLEANS TRIP
3. In March, 1990, Hawkins took
a trip to New Orleans as the guest of
Lowell Dunn, a Miami businessman. The
outing included travel to and from New Orleans for Hawkins and his companion in
Mr. Dunn's private airplane, as well as limousine transportation from the New
Orleans airport to Commander's Palace and back, and breakfast for Hawkins and
his companion.
4. The week following the New
Orleans trip, Mr. Dunn had an issue come up before the County Commission for a
vote.
5. On July 1, 1991, Hawkins
filed a Form 7, Statement of Gifts and Other Non-Compaign Contributions for
Year Ending December 30, 1990 (Form 7).
The form is dated as being signed by Hawkins on June 17, 1991.
6. Form 7 calls for the officer
completing the form to list "each contribution, including any gift,
donation, or payment the value of which exceeds $100 . . ."
7. Hawkins entrusted the
completion of Form 7 to his mother, Carolyn Hawkins. The trip to New Orleans was not listed on Form 7 which Hawkins filed on July 1, 1991.
8.
On December 13, 1991, Hawkins filed an amended Form 7, disclosing the trip to New Orleans.
9. When interviewed by an
investigator from the Commission on Ethics, Hawkins stated under oath that he
knew that the value of the trip was more than $100. The value of the trip, including air and ground transportation
and the meal, was in excess of $100.
10. Carolyn Hawkins testified at
the final hearing that in her preparations for filing the financial disclosure
statement for her son she comparison shopped and found a round trip ticket to
New Orleans for $198 and another for $100.
Mrs. Hawkins gave a statement to the State Attorney's office concerning
the air fare. The transcript reads that
she told the State Attorney that she found a round trip for $198. Mrs. Hawkins asserts that the court reporter
did not get the transcript correct and that she told the State Attorney that
the fare was $100. Mrs. Hawkins told
the State Attorney that she had found a trip for $198.
11. Prior to filing Form 7, Mrs.
Hawkins called Bonnie Williams, the Executive Director for the Commission on
Ethics concerning whether the trip had to be reported. Ms. Williams has been with the Commission on
Ethics since its inception in 1974 and was familiar with the applicable law on
disclosure at the time Mrs. Hawkins called her. Contrary to Mrs. Hawkins' claim, Ms. Williams did not tell Mrs.
Hawkins that the trip did not have to be reported. Mrs. Hawkins misunderstood what Ms. Williams told her.
SEITLIN INSURANCE
12. Hawkins was employed by
Seitlin & Company (Seitlin), an insurance brokerage firm, for approximately
one year between 1990 and 1991. Hawkins had very little experience in the
insurance business. Hawkins received a
flat fee of $25,000, in return for which he would learn the practice of
insurance and refer business to Seitlin if the opportunity should arise. Hawkins received no commissions or bonuses
from referring business to Seitlin, and was not required to refer business to
Seitlin. Hawkins viewed his employment
with Sietlin as a "long term relationship type of thing." As part of the agreement, Seitlin was to
provide Hawkins with an office and support staff at the Seitlin office; however
as Hawkins testified at final hearing he was "very very very rarely"
at his Seitlin office.
13. In May, 1990, Hawkins sought
to have a proclamation presented by the County Commission honoring Seitlin and
proclaiming Tuesday, May 15, 1990 "Seitlin and Company" day. He requested that his secretary, Marcia
Fernandez-Morin place the item on the County Commission agenda, which she
did. At the hearing, Hawkins claims
that Ms. Fernandez-Morin had the item placed on the agenda without his knowlege
or permission. I find his testimony not
to be credible. Hawkins had close
personal ties with Steve Jackman, the CEO of Seitlin, and Hawkins was being
paid $25,000 a year as a consultant for Seitlin. No evidence was presented to
show that Ms. Fernandez-Morin had any interest in Seitlin or that she would
have any reason for placing the item on the agenda other than she was requested
to do so by Hawkins.
14. Hawkins kept Seitlin business cards and
stationery in his County Commission office. On occasion Hawkins had Ms.
Fernandez-Morin type Seitlin related correspondence for him while she was
working for Hawkins in the County Commission office.
15. Hawkins frequently had
visitors from Seitlin in his office; however, there was no evidence presented
that they were conducting Seitlin business during these visits.
16. While Hawkins was working
for Seitlin, secretaries in Hawkins' County office would place calls to Seitlin
for Hawkins and arrange breakfast and dinner meetings with Seitlin
representatives for Hawkins.
CHI
17. The Community Health Center
of South Dade (CHI) provides outpatient care for indigents in the Homestead
area in Dade County.
18. Brodis Hartley is, and has
been at all times pertinent to the Complaint, the Chief Executive Officer for
CHI.
19. CHI receives approximately
one-fourth of its funding from Dade County.
20. From 1989 to 1992, Hawkins
was Chairman of the Health and Human Services of the County Commission. The Health and Human Services Committee had
oversight responsibility for CHI. The
Committee reviewed its budget.
21. Hawkins' mother is a member
of CHI's board of directors and its finance committee. While reviewing CHI's financial statements,
Mrs. Hawkins became concerned that CHI was paying too much for insurance. She asked Hawkins if he could determine whether
CHI's insurance premiums were too high.
She told Hawkins that the person to contact at CHI was Nicholas Arnao,
the Risk Manager for CHI.
22. Based on his mother's
request, Hawkins asked Richard Johnson, an insurance agent employed at Seitlin,
to call CHI. Mr. Johnson viewed the
referral as potential new business for Seitlin.
23. Mr. Johnson called Mr. Arnao
concerning the insurance. Mr. Arnao
told Mr. Hartley that he had recieved a call from Seitlin. Mr. Hartley knew about the relationship
between Seitlin and Hawkins. Mr.
Hartley had no interest in having the insurance reviewed except that he wanted
to maintain a good relationship with Hawkins.
24. Mr. Arnao was opposed to
letting Seitlin take a look at the insurance coverage for CHI. Hawkins knew of Mr. Arnao's opposition. Hawkins told the investigator for the
Commission on Ethics that he called Arnao and asked him to cooperate. He stated, "I remember talking to Mr.
Arnao and saying, 'you know, I would appreciate it if you would let Dick see
what was doing.'"
25. Neither Hawkins nor his
mother informed Mr. Hartley that Mr. Johnson would be calling about the
insurance. Mr. Hartley discovered that
Hawkins had referred Mr. Johnson only after he asked Mr. Johnson who referred
him to CHI.
26. Mr. Johnson did review the
insurance coverage and discovered that CHI was paying too much for its workers'
compensation coverage. He made a
proposal to CHI which would reduce its workers' compensation insurance by
$50,000. CHI submitted the Seitlin
proposal to its own insurance broker, which eventually reduced CHI's workers'
compensation by the same amount.
27. The primary purpose in
Hawkins' requesting Mr. Johnson to review CHI's insurance was to determine if
CHI was paying too much for its insurance, not to garner business for Seitlin.
EASTER SEALS
28. In mid-1991, Easter Seals of
Dade County (Easter Seals) began looking for a new president. Its current
president, Al Calli, was preparing to retire.
The position pays approximately $98,000 per year.
29. Mr. Calli approached Hawkins
to see whether he was interested in the position. Hawkins indicated that he might be and sent a resume to Easter
Seals. Prior to September 19, 1991, Hawkins interviewed for the job with the
search committee at Easter Seals.
30. The County Commission holds
two hearings each September regarding
the proposed budget for the following year.
In 1991, the hearings were held on September 5 and 19.
31. Dade County has many
community-based organizations (CBOs) that offer services to the poor, sick, and
underprivileged of the County. Easter
Seals is a CBO. Many CBO's receive a
percentage of their funding from Dade County.
32. To receive funding from the
County, CBO's must apply. At first the
County did not have a formal application process; an interested CBO would
simply attend a budget hearing and request funding. Gradually, the County developed a more formalized procedure
whereby CBO's would submit a written application. The prior practice of simply attending a budget hearing was never
totally abandoned, however, and CBO's who did not submit an application for
funding nevertheless would be considered for funding if they requested it at a
budget hearing.
33. The Community Committee for
Development Handicaps (CCDH) is a community based consortium designated as an
umbrella organization for a number of entities which serve the developmentally
handicapped. CCDH would request funds from
Dade County and then disburse the funds among its member agencies.
34. Agencies which are members
of CCDH enter into a contract with CCDH, agreeing not to make individual
funding requests to the County Commission at the general yearly budget hearings. Easter Seals was a founding member of CCDH
and had a contractual agreement as described above with CCDH in September,
1991. Easter Seals viewed the agreement
with CCDH not to prohibit Easter Seals from requesting capital funds from the
County Commission and had requested capital funds in the past.
35. Prior to the budget hearings
in September, 1991, CCDH had submitted a written request to the County
indicating the amount of money it sought and the way it expected to distribute
the money. CCDH had expected to
distribute approximately $14,000 to Easter Seals.
36. On September 19, Easter
Seals Board Chairman John Fox received a telephone call at his office. The caller identified himself as being from
Hawkins' office. He indicated that a
funding request from Easter Seals to the County might be favorably received and
suggested that Easter Seals send a representative to the Commission meeting
that night and request $75,000.
37. George Hiados, an Easter
Seals employee, was sent to the budget meeting to request the $75,000 for
Easter Seals, which he did.
38. Helene Goode, who has been
the Executive Director of CCDH for the past thirteen years, attended the budget
meeting on September 19 and became concerned when Mr. Hiados requested the
money for Easter Seals. She viewed the
request as a breach of the agreement between CCDH and Easter Seals. Ms. Goode sent a note to Hawkins during the
budget meeting expressing her concern over Easter Seals' request.
39. When the matter came to a
vote, it was Commissioner Art Teele who moved that Easter Seals be appropriated
$50,000. In making the motion, Mr.
Teele looked at Respondent and asked if that was for capital and Hawkins nodded
his head affirmatively. Hawkins voted
in favor of the appropriation to Easter Seals.
40. Hawkins was hired as the CEO
of Easter Seals in November, 1991.
HARRASSMENT OF EMPLOYEES
41. Dade County had a sexual
harrassment policy in force when Hawkins was County Commissioner. Hawkins was aware of the policy and believed
it applied to Commissioners as well as County employees.
42. Rashel Nudelman was employed
as a secretary in Hawkins' office from February 1990 to November 1991. While Ms. Nudelman was employed in Hawkins'
office, Hawkins made sexually explicit remarks to her. Examples of these remarks include: "Your tits look great today," and
"Your tits are hanging out."
Many of these remarks would be accompanied by lewd facial expressions
and leers. Hawkins also made remarks
about Ms. Nudelman to other employees, telling Mary Delpino that Ms. Nudelman
"had a great set of tits."
43. There were also occasions
when Hawkins, in talking to Ms. Nudelman on the telephone, would inform her
that he was in bed naked and invite her to join him.
44. On one occasion, Hawkins
asked Ms. Nudelman to rub liniment on his back.
45. In the fall of 1991, Ms.
Nudelman was placed on a medical leave of absence for two weeks. When she returned she was fired because
Terry Murphy, Hawkins' assistant, advised Hawkins that Ms. Nudelman was being
disruptive to the office and had made some disparaging remarks about Hawkins to
Lynn Solte, Hawkins' secretary at Easter Seals. Ms. Nudelman did not make such remarks to Ms. Solte. When Ms. Solte told Hawkins that Ms.
Nudelman had not made any disparaging remarks about him to her, Hawkins laughed
and said, "Welcome to politics."
46. When Ms. Nudelman was
dismissed in November, 1991 she told Terry Murphy about her allegations of
sexual harrassment by Hawkins. Mr.
Murphy told Hawkins about the allegations.
47. Ms. Nudelman tolerated
Hawkins' behavior because she was afraid she would be fired if she did not.
48. Mary Difede Delpino was
employed as a secretary in Hawkins' office from October, 1990 to May,
1992.
49. On at least one occasion,
Hawkins told Ms. Delpino, "if I wasn't in this wheelchair, I would jump
you right now."
50. Hawkins frequently referred
to Ms. Delpino as "sin tetas" which is Spanish for "without
breasts." Ms. Nudelman witnessed
Hawkins making such comments on occasion.
51. On at least one occasion,
Hawkins said to Ms. Delpino, "the things that I can teach you" while
he made twisting motions with his hands and wiggling his tongue at her.
52. When Ms. Delpino was walking
in front of Hawkins, he would sometime say, "it must be jelly 'cause jam
don't shake like that." Sylvia
Farina, an employee for the County Commission, heard Hawkins make such a remark
to Ms. Delpino while Ms. Delpino was walking in front of Hawkins.
53. On one occasion, when Ms.
Delpino was in Hawkins' office, he asked her to look at something, and, while
her attention was diverted, jabbed her in the breast with a pencil. When she came out of his office, she was
upset and told a co-worker, Iraella Abello, that he had poked her in the breast
with a pencil.
54. On at least one occasion,
Mr. Hawkins called Ms. Delpino into his office and asked her to pick up a
bullet which had fallen from his desk onto the floor. Ms. Delpino picked up the bullet and before she left the office,
Hawkins had knocked the bullet off his desk and again asked her to pick it
up. Ms. Delpino felt that he did this
so that he could look down her blouse as she bent to pick the bullet up. When the investigator for the Commission on
Ethics asked him if that was the purpose for asking Ms. Delpino to pick up the
bullet, Hawkins replied that Ms. Delpino did not have anything down her blouse
to look at.
55. At the final hearing Hawkins
testified that his desk was specially built and it would have been impossible
for him to look down Ms. Delpino's blouse as she bent down. Previously when Hawkins was questioned by
the Assistant State Attorney, the Ethics Commission investigator, and the
Advocate concerning the bullet incident, Hawkins did not mention that his desk
would have prevented him from looking down Ms. Delpino's blouse. I find that Hawkins testimony about his
inablility to see because of the desk not to be credible.
56. Ms. Delpino tolerated
Hawkins' behavior because she was afraid she would be fired if she did
not.
57. Prior to Ms. Delpino leaving
Hawkins's employ she complained to
employees of other County Commissioners about Hawkins' inappropriate behavior
toward her.
58. Marcia Fernandez-Morin was
employed as an Executive Secretary in Hawkins' office from late 1988 until
sometime in August, 1990.
59. Hawkins frequently made
comments concerning Ms. Fernandez-Morin's body. He told her that she "looked good" but said it in a
lewd and leering manner. He also
commented that she had a "good butt," and using his hands to gesture,
indicated that she had an hourglass figure.
At a time when she had lost weight, Hawkins referred to her as "sin
tetas."
60. Hawkins would call Ms.
Fernandez-Morin late at night. More
than once he told her that she seemed to be out of breath and asked her if she
had been having sex.
61. Ms. Fernandez-Morin
tolerated Hawkins' behavior out of fear of retaliation by Hawkins.
62. Ms. Fernandez-Morin was
fired from Hawkins' employ.
63. Hawkins' staff, including
Ms. Nudelman, Ms. Delpino, and Ms. Fernandez-Morin, served at his pleasure,
meaning that he could fire them without cause.
64. Hawkins' lewd and sexual
comments and inappropriate actions were univited and unwanted by Ms. Nudelman,
Ms. Delpino, and Ms. Fernandez-Morin.
65. In October, 1992, Terry
Murphy, Hawkins' assistant, was interviewed by Assistant State Attorney Joe
Centorino on the issue of alleged sexual improprieties regarding Hawkins and
his female staff members. Mr. Murphy
immediately advised Hawkins about the nature of the interview.
66. Yanette Bravo and Francis
Pons were hired to work in Hawkins' office in June 1992 and June 1993,
respectively. They testified that
Hawkins never made inappropriate remarks to them while they were employed by
him.
67. Debra Mayo has known Hawkins
since 1978 and was his legislative aide in 1983. Until recently she had been his escort for political functions
when Hawkins was between lady friends.
Hawkins never made lewd or direct sexual comments to her.
68. Lynn Solte, has been
Hawkins' secretary at Easter Seals for over three years. On occasion Hawkins has made remarks to her
of a sexual nature which she considered to be improper.
69. Before the allegations that
are the subject matter of this proceeding, Mr. Hawkins had never been the
subject of a Commission on Ethics complaint.
CONCLUSIONS OF LAW
70. 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").
71. 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 Hawkins violated
Sections 112.3148(2)(a) and 112.313(6), Florida Statutes. Therefore, the burden of establishing the elements of Hawkins' alleged
violations is on the Commission.
72. Section 112.3148(2)(a),
Florida Statutes (1989) provides as follows:
Each elected public officer and each appointed
public officer who is required by law, pursuant
to s. 8 Art. II of the State Constitution, to
file a full and public disclosure of his
financial interests shall file a statement
containing a list of all contributions received
by him or on his behalf, if any, and expenditures
from, or disposition made of, such contributions
by such officer which are not otherwise required
to be reported by chapter 106, with the names and
addresses of persons making such contributions or
receiving payment or distribution from such
contributions and the dates thereof.
The
statement shall be sworn to by the elected
public officer as being a true, accurate, and
total listing of such contributions and expenditures.
73. "Contribution" is
defined in Section 112.3148(1)(c), Florida Statutes (1989) as:
[A]ny gift, donation, or payment of money the
value of which is in excess of $100 to any public
officer or to any other person on the public
officer's behalf. Any payment in
excess of $100
to a dinner, barbeque, fishfry, or other such
event shall likewise be deemed a 'contribution.'
. . .
74. As a Dade County Commissioner,
Hawkins was an elected officer subject to the requirements of Part III, Chapter
112, Florida Statutes.
75. In 1990, the value of trips,
including transportation, meals, and accomodations, in excess of $100 were
required to be disclosed. See CEO 90-72. The value of the trip to New Orleans which
Mr. Dunn provided to Hawkins exceeded $100.
Although Carolyn Hawkins testified that she had found a special fare of
$100 for the air transportation, the value of the trip would still be in excess
of $100 because the cost of the meal and the ground transportation was not
included in the special fare. There was no evidence as to the value of the
meal or the cost of the limousine service; however they did have some value and
whatever amount it was would have put the value of the trip to New Orleans in
excess of $100.
76. Hawkins argues that Hawkins
did not violate Section 112.3148, Florida Statutes because he relied on his
mother's belief that the trip did not have to be reported and because he
promptly amended his Form 7 to include the trip once he was advised that the
trip did have to be reported. The
Executive Director of the Commission on Ethics did not tell Mrs. Hawkins that
the trip did not have to be reported; thus, Mrs. Hawkins' belief that the trip
did not have to be reported resulted from a misunderstanding of her
conversation with Ms. Williams.
Although, Hawkins did amend his Form 7 to include the trip, it is not a
defense to a violation of the statute, but rather goes to mitigation of the
penalty.
77. The Advocate has established
that Hawkins did violate Section 112.3148(2)(a), Florida Statutes, (1989).
78. 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.
79. 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.
80. 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.
81. Hawkins was a public officer
subject to Part III of Chapter 112, Florida Statutes. By using county staff and equipment to type Seitlin
correspondence and make calls relating to Seitlin business, Hawkins was using
resources within his trust as a County Commissioner to benefit his employer,
Seitlin.
Seitlin
82. Hawkins was basically aware
of the Code of Ethics, which included prohibitions on misuse of public
office. He had an office at Seitlin and
secretarial support there but rarely used his Seitlin office. He knew that Seitlin work should be
conducted using Seitlin resources and not County resources. Thus, it can only be concluded that Hawkin's
use of County resources to conduct Seitlin business was done with a wrongful
intent and that such actions were inconsistent with his public duties as a
County Commissioner. The Advocate has
proven by a preponderance of the evidence that Hawkins violated Section 112.313(6),
Florida Statutes, as it relates to the use of County employees and equipment to
conduct Seitlin business.
CHI
83. The Advocate has failed to
establish by a preponderance of the evidence that Hawkins violated Section
112.313(6), Florida Statutes, as it relates to the allegations involving
CHI. Hawkins' purpose in asking Mr.
Johnson to look at CHI's insurance files was to determine whether CHI was
paying too much for its insurance coverage.
Hawkins' mother was a member of CHI's board and asked him to look into
the matter on behalf of CHI. Although Hawkins requested Mr. Johnson to review
the insurance and asked Mr. Arnao to make the records available to Mr. Johnson,
the evidence does not support a finding that Hawkins did so with an intent to
benefit either himself or Seitlin but rather to respond to a legitimate request
from a CHI board member. Thus, Hawkins had no wrongful intent and therefore,
did not violate Section 112.313(6).
Easter Seals
84. The advocate has failed to
establish that Hawkins violated Section 112.313(6), Florida Statutes, relating
to the allegations concerning Easter Seals.
The evidence did not establish that Hawkins told the Easter Seals
representatives to come to the budget meeting and make a request for
$75,000. Mr. Fox testified that Mr. Hawkins
did not call him but that someone identifying himself as a member of Hawkins'
staff had called. There was no
testimony that Hawkins had instructed any staff member to make the call to Mr.
Fox.
85. The Advocate argues that
because Hawkins knew that the request from Easter Seals would be classified as
a request for capital funds rather than operating funds means that he somehow
negotiated the amount and use of the funds for Easter Seals. Easter Seals had
made individual requests to the County Commission for capital funds in the
past. Mr. Haidos had called Hawkins'
staff on the day of the budget meeting to discuss the request. It was Mr. Murphy's responsibility to
coordinate the budget matters. Whatever
discussion concerning the specifics of the request would have been between Mr.
Murphy and Mr. Haidos.
86. The budget hearings were a
matter of public knowledge. CBO's did
make individual requests for funding at the budget meetings. Easter Seals could make an individual
request for funds just like other CBO's.
Although Easter Seals did have an agreement with CCDH not to make
individual requests, Easter Seals viewed that agreement not to prohibit a
request for capital funds. Easter Seals
did not secure a special privilege by coming to the budget meeting and
requesting funds. It could have done so
whether anyone from Hawkins' office told the chairman of the Easter Seals Board
to come and request funds.
Harrassment of Employees
87. The Advocate has established
by a preponderance of the evidence that Hawkins violated Section 112.313(6),
Florida Statutes, regarding the allegations of sexual harrassment against Ms.
Nudelman, Ms. Fernandez-Morin, and Ms. Difede Delpino. Hawkins subjected these employees to
repeated and continuous lewd and sexually oriented remarks and behavior.
88. Infliction of sexually
charged remarks, gestures, and actions on subordinate employees has supported
findings of violation of the Misuse of Office provision in a number of cases
before the Commission on Ethics. See,
In Re: Alfred Welch, 14 FALR 4274 (Ethics 1992); In Re: E. "Walt"
Pellicer, 9 FALR 4387 (Ethics 1987); In
Re: L.H. Lancaster, 5 FALR 1567-A (Ethics 1983); and In Re: Raymond Bruner, 2
FALR 1034 (Ethics 1980).
89. Hawkins had the authority to
fire the employees and they put up with his unwanted comments and actions
because they were afraid they would lose their jobs. This implicit coercion constitutes a use of office.
90. Hawkins argues that if
Hawkins just makes lewd and vulgar comments to the female employees that is not
a violation of Section 112.313(6) because Hawkins is not getting any benefit
from making such comments. The argument
is incredulous. Just as a person who
makes obscene telephone calls gets sexual gratification from just talking, the
only conclusion that can be drawn from Hawkins sexual comments and lewd actions
is that he was doing it for his own sexual gratification. Additionally, Hawkins did more than just
talk. He punched one employee in the
bosom with a pencil; dropped a bullet from his desk so that he could look down
an employee's blouse; requested an employee to rub him with liniment; and asked
an employee to come to his house and join him in bed. These actions are inconsistent with the proper performance of his
duties as a County Commissioner. They
were done for his own gratification and with a wrongful intent.
Penalties
91. Section 112.317 sets out
possible penalties for Ethics law violations which range from public censure
and reprimand, to restitution, to removal from office and civil penalties up to
$10,000.
92. The failure to report the
New Orleans trip resulted from Mrs. Hawkins' misunderstanding of the
conversation she had with the Executive Director for the Commission on
Ethics. Hawkins was relying on his
mother's belief that the trip did not have to be reported. I recommend that a civil penalty of $100 be
imposed for the violation of Section 112.3148(2)(a), Florida Statutes (1989).
93. For the violation of Section
112.313(6), Florida Statutes, as it relates to the use of County personnel and
equipment to perform Seitlin business, I recommend a civil penalty of $500.
93. For the violation of Section
112.313(6), Florida Statutes, as it relates to the harrassment allegations, I
recommend a civil penalty of $7,500 and public censure and reprimand.
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
Lawrence R. Hawkins violated Section 112.3148(2)(a), Florida Statutes (1989),
violated Section 112.313(6), Florida Statutes, as it relates to the allegations
concerning the use of County employees and equipment for Seitlin business and
the harrassment of three female employees,
did not violate Section 112.313(6), Florida Statutes, as it relates to
the CHI allegations, and did not violate Section 112.313(6), Florida Statutes
as it relates to the Easter Seals allegations, and recommending the imposition
of a civil penalty of $8,100.00, and public censure and reprimand as described
above.
DONE AND ENTERED this 28th 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 28th day of September, 1995.
APPENDIX
TO RECOMMENDED ORDER, CASE NO. 94-4715EC
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.
Respondent
1. Paragraphs 1-2: Rejected as unncessary.
2. Paragraphs 3-6: Accepted in substance.
The New Orleans Trip
1. Paragraphs 1-5: Accepted in substance.
2. Paragraph 6: Rejected as unnecessary.
3. Paragraphs 7-14: Accepted in substance.
4. Paragraph 15: Rejected as subordinate to the facts found.
Seitlin Insurance
1. Paragraph 1: The first sentence is accepted in
substance. The remaining is rejected as
unnecessary detail.
2. Paragraph 2: Accepted in substance.
3. Paragraph 3: Accepted.
4. Paragraphs 4-6: Accepted in substance.
CHI
1. Paragraphs 2-6: Accepted in substance.
2. Paragraph 7: Rejected as
irrelevant to the extent that it refers to Hartley and Arnao because Mrs.
Hawkins as a member of the Board of Directors wanted the insurance coverage
reviewed.
3. Paragraph 8: The first sentence is rejected because a
board member wanted it reviewed. The
second sentence is accepted in substance.
4. Paragraph 9: Accepted.
5. Paragraphs 10-11: Accepted in substance.
6. Paragraph 12: Rejected as subordinate to the facts found.
7. Paragraphs 13-14: Rejected as unnecessary detail.
8. Paragraphs 15-16: Accepted in substance.
9. Paragraphs 17-19: Rejected as subordinate to the facts found.
Respondent's Intent
1. Paragraphs 1-2: Accepted in substance.
2. Paragraph 3: The first sentence is accepted in substance
as that is what he testified but rejected as not supported by the evidence as
it relates to correspondence. The
remainder is rejected as subordinate to the facts found.
3. Paragraph 4: The second sentence is accepted in
substance. The remainder is rejected as
unnecessary.
4. Paragraph 5: The first sentence is accepted. The remainder is rejected as unnecessary.
5. Paragraphs 6-8: Rejected as unnecessary.
6. Paragraph 9: Rejected as subordinate to the facts found.
7. Paragraph 10: Accepted in substance.
8. Paragraph 11: Rejected as subordinate to the facts found.
9. Paragraph 12-13: Accepted in substance.
10. Paragraphs 14-17: Rejected as subordinate to the facts found.
11. Paragraph 18: Rejected as not supported by the greater
weight of the evidence.
Easter Seals
1. Paragraphs 1-12: Accepted in substance.
2. Paragraph 13: Rejected as unnecessary.
3. Paragraphs 14-17: Accepted in substance.
4. Paragraphs 18-19: Rejected as irrelevant.
5. Paragraph 20: Accepted in substance.
6. Paragraph 21: Rejected as irrelevant.
7. Paragraph 22: Accepted in substance.
8. Paragraph 23-24: Rejected as subordinate to the facts found.
9. Paragraph 25: Accepted in substance.
10. Paragraph 26: The first three sentences are accepted in
substance. The remainder is ___rejected to the extent that Easter Seals had
asked for capital funds. The evidence
is not clear if that request was during the hearings on the County General
Revenue Budget.
11. Paragraph 27: The first sentence is accepted in
substance. The remainder is subordinate
to the facts found.
12. Paragraph 28: Accepted in substance.
13. Paragraph 29: Rejected as unnecessary.
14. Paragraph 30: Rejected as irrelevant.
15. Paragraph 31: Rejected as not supported by the greater
weight of the evidence because Hawkins had directed staff in the past to work
with Easter Seals on their request for funds.
16. Paragraph 32: The first sentence is accepted. The remainder is rejected as subordinate to the facts found.
17. Paragraphs 33-35: Rejected as not supported by the greater
weight of the evidence.
Respondent's Harassment of Subordinate
Employees
1. Paragraphs 1-19: Accepted in substance.
2. Paragraph 20: Rejected as unnecessary.
3. Paragraphs 23-26: Accepted in substance.
4. Paragraph 27: The first and second sentences are accepted
in substance. The remainder is rejected
as unnecessary.
5. Paragraph 28: Accepted.
6. Paragraph 29: Rejected as constituting argument.
Credibility of Terry Murphy and Kevin Stein
1. Paragraph 1: The first part of the sentence is accepted
in substance. The remainder is rejected
as subordinate to the facts found.
2. Paragraphs 2-6: Rejected as unncessary.
3. Pararagraph 7: Accepted in substance.
Credibility of Rashel Nudelman, Mary Delpino,
and Marcia Fernandez-Morin
1. Paragraphs 1-2: Accepted in substance.
2. Paragraph 3: There is no paragraph 3.
3. Paragraphs 4-7: Accepted in substance.
Respondent's Credibility
1. Paragraphs 1-3: Rejected as constituting argument.
2. Paragraphs 4-5: Accepted in substance.
3. Paragraph 6: Accepted in substance as to some allegations
and as set forth in the Recommended Order.
Respondent's Intent
1. Paragraph 1: Accepted.
2. Paragraph 2: Rejected that his testimony constituted an
admission.
3. Paragraph 3: Accepted in substance.
4. Paragraph 4: Rejected as constituting a conclusion of
law.
Respondent's Proposed Findings of Fact.
1. Paragraph 1: The first three sentences are accepted in
substance. The remainder is rejected as irrelevant.
2. Paragraph 2: The first sentence is accepted in
substance. The second sentence is
rejected as unnecessary.
3. Paragraph 3: Accepted in substance.
4. Paragraph 4: Accepted.
5. Paragraph 5: Accepted in substance.
6.
Paragraph 6: Rejected as
irrelevant because Section 112.3148(2) deals with reporting contributions not
just gifts.
7. Paragraph 7: Accepted.
8. Paragraphs 8-9: Accepted in substance.
9. Paragraph 10: The first sentence is accepted in substance.
The remainder is rejected as subordinate to the facts found because whether the
air fare was $100 or $198, the trip was still valued over $100.
10. Paragraph 11: Accepted in substance.
11. Paragraph 12: Rejected as not supported by the greater
weight of the evidence.
12. Paragraph 13: Accepted in substance.
13. Paragraph 14: The first sentence is rejected as
irrelevant. The second sentence is accepted
in substance.
14. Paragraph 15: Accepted in substance.
15. Paragraph 16: The first two sentences are accepted in
substance. The third sentence is
rejected as subordinate to the facts found.
16. Paragraphs 17-18: Accepted in substance.
17. Paragraph 19: The first sentence is accepted in substance. The second sentence is rejected based on Mr.
Hartley's testimony.
18. Paragraphs 20-22: Accepted in substance.
19. Paragraph 23: The first part of the first sentence is
accepted in substance. The second part
of the first sentence is rejected. The
reason Hartley let Johnson review the insurance was to maintain a good
relationship with Hawkins. The second sentence
is accepted in substance.
20. Paragraphs 24-26: Accepted in substance.
21. Paragraph 27: The first sentence is accepted in
substance. The remainder is rejected as
in conflict with Hawkins testimony at the final hearing that he was "very,
very, very rarely" at the Seitlin office.
22. Paragraph 28: The last sentence is rejected as not
supported by credible testimony. The
remainder is rejected as subordinate to the fact that he did use it on some
occasions when he asked a County employee to type on the letterhead.
23. Paragraph 29: Rejected as subordinate to the facts found.
24. Paragraph 30: Accepted in substance.
25. Paragraph 31: The first sentence is rejected as not
supported by credible evidence. The last
sentence is accepted in substance to the extent that it refers to meetings in
which they discussed Seitlin business.
26. Paragraph 32-34: Accepted in substance.
27. Paragraph 35: Rejected as subordinate to the facts found.
28. Paragraph 36: The first sentence is accepted in
substance. The second sentence is
rejected as subordinate to the facts found.
29. Paragraph 37: Accepted in substance.
30. Paragraph 38: The first sentence is accepted in
substance. The second sentence is
rejected as unnecessary.
31. Paragraph 39: Accepted that on September 19 Hawkins was
being considered for the position of executive director for Easter Seals. The remaining is rejected. Fox testified that he was called by a staff
person in Hawkins' office. Hawkins
testified that he had been interviewed prior to the budget hearing.
32. Paragraph 40: Accepted to the extent Hiados went to the
meeting. The remainder is rejected as
subordinate to the facts found.
33. Paragraph 41: Rejected as subordinate to the facts found.
34. Paragraphs 42-45: Accepted
in substance.
35. Paragraph 46: Rejected as not supported by the greater
weight of the evidence. Ms. Goode sent
him a note during the budget hearing.
36. Paragraph 47: The two sentences are accepted in
substance. The remainder is rejected as subordinate to the facts found.
37. Paragraphs 48-50: Rejected as subordinate to the facts found.
38. Paragraph 51: The first sentence is accepted in substance. The second and third sentences are rejected
as subordinate to the facts found. The first part of the last sentence is
rejected as not based on credible evidence.
The remainder is rejected as subordinate to the facts found.
39. Paragraphs 52-54: Accepted in substance.
40. Paragraph 55: The sixth sentence is accepted in
substance. The seventh and eight sentences
are rejected as not supported by credible evidence. The remainder is rejected as subordinate to the facts found.
41. Paragraph 56: The first sentence is rejected to the extent
that it implies that Ms. Nudelman made such remarks. The last sentence is rejected as irrelevant.
42. Paragraph 57: Rejected as irrelevant.
43. Paragraph 58: Hawkins testimony is rejected as not
credible.
44. Paragraph 59: Having judged the credibility of the
wintesses, it is rejected.
45. Paragraph 60: Accepted that Ms. Difede was hired in
1990. The remainder is rejected as
irrelevant.
46. Paragraph 61:
Accepted in substance.
47. Paragraphs 62-64: Rejected as subordinate to the facts found.
48. Paragraph 65: Hawkins testimony is rejected as not
credible.
49. Paragraph 66: The first and third sentences are accepted
in substance. The second sentence is
rejected as irrelevant. The fourth and
fifth sentences are rejected as not supported by credible evidence.
50. Paragraph 67: Having judged the credibility of the
witnesses, it is rejected.
51. Paragraphs 68-69: Accepted in substance.
52. Paragraph 70: Hawkins's testimony as it relates to lewd
comments is rejected as not credible.
53. Paragraph 71: The first sentence is accepted in substance. Rejected as not supported by credible
evidence.
54. Paragraph 72: The first
sentence is rejected as not supported by credible evidence. The second sentence is rejected as irrelevant.
55. Paragraph 73: Rejected as constituting argument.
56. Paragraph 74: Rejected as subordinate to the facts found.
COPIES FURNISHED:
Virlindia Doss, Esquire
Advocate For the Florida
Commission on Ethics
Alexander Building, Suite 208
Koger Executive Center
Tallahassee, Florida 32399-1050
George T. Yoss, Esquire
Raoul Cantero, Esquire
2601 South Bayshore Drive, Suite 1600
Miami, Florida 33133
Carrie Stillman
Complaint Coordinator
Commission on Ethics
Post Office Box 15709
Tallahassee, Florida 32317-5709
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.