BEFORE THE
STATE OF FLORIDA
COMMISSION ON ETHICS
In re GARY D. LATHAM, )
)
Respondent. ) Complaint
No. 94-174
)
DOAH
Case No. 95-3717EC
)
Final
Order No. COE 96-03
__________________________)
FINAL ORDER AND PUBLIC REPORT
This matter came before the Commission on Ethics on the
Recommended Order rendered in this matter on January 5, 1996 by the Division of
Administrative Hearings (DOAH), a copy of which is attached hereto and
incorporated herein by reference. The
Hearing Officer recommends that the Commission enter a final order and public
report finding that the Respondent violated Section 112.313(6), Florida
Statutes, by engaging in unsolicited and unwanted sexually or romantically
oriented behavior toward a subordinate female employee. As to this violation, the Hearing Officer
recommended that a civil penalty of $4,000 be imposed upon the Respondent, and
that he be publicly censured and reprimanded.
This matter began with the filing of a complaint by Deborah K.
Kearney, alleging that the Respondent, as a member of the Florida Parole
Commission, had violated the Code of Ethics for Public Officers and
Employees. The allegations were found
to be legally sufficient to allege a possible violation of Section 112.313(6),
Florida Statutes, and Commission staff undertook a preliminary investigation to
aid in the determination of probable cause.
On July 18, 1995, the Commission on Ethics issued an order finding
probable cause to believe that the Respondent had violated Section 112.313(6),
Florida Statutes, by engaging in unsolicited and unwanted sexually or
romantically oriented behavior toward a subordinate female employee. The formal hearing before the Hearing
Officer was held on October 2 and 3, 1995.
The Recommended Order was transmitted to the Commission and the parties
on January 5, 1996, and the parties were notified of their right to file
exceptions with the Commission by February 1, 1996 in accordance with Rule 34-5.023(3),
Florida Administrative Code. Respondent
thereafter sought and received an extension of time to file his exceptions, up
to and including February 12, 1996. On
February 2, 1996, Respondent filed a Motion for Rehearing. The Advocate’s Response to Respondent’s
Motion for Rehearing was apparently misfiled with the Division of
Administrative Hearings on February 13, 1996, and not filed with the Commission
until February 26, 1996. Respondent’s
Exceptions to Recommended Order were filed on February 12, 1996. Having reviewed the Recommended Order,
Respondent’s Motion for Rehearing, the Advocate’s Response, Respondent’s
Exceptions, and the complete record herein, and having considered the arguments
of the Respondent and the Advocate made before the Commission at its final consideration
of this matter, the Commission makes the following findings, conclusions,
rulings, and recommendations.
Under Section 120.57(1)(b)10, Florida Statutes, an agency may
reject or modify the conclusions of law and interpretations of administrative
rules contained in the recommended order.
However, the agency may not reject or modify findings of fact
made by the Hearing Officer unless a review of the entire record
demonstrates that the findings were not based on competent, substantial
evidence or that the proceedings on which the findings were based did not
comply with the essential requirements of law.
See, e.g., Freeze v. Dept. of Business Regulation, 556 So.
2d 1204 (Fla. 5th DCA 1990); and Florida Department of Corrections v.
Bradley, 510 So. 2d 1122 (Fla. 1st DCA 1987). Competent, substantial evidence has been defined by the Florida
Supreme Court as such evidence as is "sufficiently relevant and material
that a reasonable mind would accept it as adequate to support the conclusions
reached." DeGroot v. Sheffield,
95 So. 2d 912, 916 (Fla. 1957).
The agency may not reweigh the evidence, resolve
conflicts therein, or judge the credibility of witnesses, because those are
matters within the sole province of the hearing officer. Heifetz v. Dept. of Business Regulation,
475 So. 2d 1277, 1281 (Fla. 1st DCA 1985).
Consequently, if the record of the DOAH proceedings discloses any
competent, substantial evidence to support a finding of fact made by the
Hearing Officer, the Commission is bound by that finding.
Similarly, Section 120.57(1)(b)10, Florida Statutes, prohibits
the Commission from increasing or decreasing the recommended penalty without
reviewing the complete record and stating with particularity its reasons therefore
in the order, by citing to the record to justify its action.
The Respondent moves the Commission to investigate and rehear
facts not presented by the Respondent’s counsel and the Commission’s Advocate
in the formal hearing before the Hearing Officer. As grounds therefore, the Respondent argues that the victim’s
health was made an issue at the hearing but that he was precluded from pursuing
any examination of her mental condition.
He also argues that the victim’s medical records had been subpoenaed and
were available to the Respondent and the Advocate, and that he now believes the
records should have been admissible at hearing. Additionally, he contends that there is new information that
tends to support his case but that was not previously known; and that because
his former attorney and the Advocate had improper access to certain privileged
material, they should have been disqualified from participating in the proceedings.
Respondent’s Motion for Rehearing is denied. There is no statutory authority to rehear a
case for the purpose of hearing new evidence.
In fact, in Fla. Dept. of Transportation v. J.W.C., Inc., 396 So.
2d 778 (Fla. 1st DCA 1981), the court held:
Substantial authority holds that there is no
abuse of discretion in denying a rehearing (or remand) sought for the purpose
of introducing evidence that could, in the exercise of due diligence, have been
offered at the original hearing. Id.
at 786.
Even
more persuasive is the case Henderson Signs v. Fla. Dept. Of Transportation,
397 So. 2d 769 (Fla. 1st DCA 1981), where the agency attempted to remand a case
to the Division of Administrative Hearings for the introduction of a critical
piece of evidence. In denying the
remand due to the lack of statutory authority for that procedure, the hearing
officer wrote:
It is as inherent in the administrative
process as it is in the judicial
process that eventually proceedings must come to an end. It works a substantial and unfair hardship
on a Respondent to permit the agency by trial and error to perfect piecemeal
its case against a Respondent. It is a
denial of due process for the agency to proceed in such a manner. Id. at 771.
It has been the Commission’s practice in other proceedings to
deny such requests for remand or for the introduction of additional evidence,
where the evidence sought to be admitted could have been introduced during the
initial hearing before the Hearing Officer.
In re Rubin DeLeon, 15 F.A.L.R. 2402 (1993); In re Jimmy Bilbo,
17 F.A.L.R. 2637 (1994).
Here, Respondent has made no showing why the evidence he now
wishes to introduce could not have been introduced at the original hearing
before the Hearing Officer. Further,
the Commission notes that in the Joint Prehearing Stipulation filed with the
Hearing Officer, the Respondent (through his attorney) and the Advocate
stipulated to certain facts as not needing to be proved at the hearing. Inasmuch as the majority of the issues the
Respondent now seeks to provide additional evidence on were originally
stipulated to, it would seem that Respondent’s Motion for Rehearing is nothing
more than a means to repudiate the factual stipulations he made in advance of
the hearing. Accordingly, under the
reasoning of J.W.C., supra, and Henderson Signs, supra,
Respondent’s Motion for Rehearing is denied.
1. In
his first exception, the Respondent excepts to Finding of Fact 5, arguing that
it is not based on competent substantial evidence in the record. The finding itself addresses the
circumstances that led to Ms. Billingslea coming to work in the Respondent’s
office. Our review of the record
reveals competent substantial evidence to support Finding of Fact 5.
[T.25] Further, Heifetz, supra, reminds us
that:
It is the hearing officer's function to
consider all the evidence presented, resolve conflicts, judge credibility of
witnesses, draw permissible inferences from the evidence, and reach ultimate
findings of fact based upon competent substantial evidence. Supra. at 1281.
The
Hearing Officer ably carried out this function. Thus, Respondent’s first
exception is denied.
2. Respondent’s
Exception Number 2 is directed to Finding of Fact 6, particularly that portion
of the finding discussing Chairman Wolson and Mr. Strickland’s view of why Ms.
Billingslea would be more interested in working in Mr. Latham’s office than the
Chairman’s, and that neither of them were dissatisfied with her job
performance. Respondent argues that the
record shows that these findings are conflicting and inconsistent. Our review of the record establishes that
the Hearing Officer’s finding is based upon competent substantial evidence.
[T.56-57,92-93,106,118,120-121] Heifetz,
supra. Accordingly, Respondent’s
Exception Number 2 is denied.
3. Respondent’s
third exception is directed to the second sentence of Finding of Fact 9. Respondent contends that there is no
competent substantial evidence to support the finding that as a career service
employee, Ms. Billingslea could not be unilaterally fired by Respondent but
that he could set the wheels in motion.
Our review of the record reveals competent substantial evidence on which
to base this finding. [T.91]
Accordingly, Respondent’s Exception Number 3 is denied.
4. Respondent’s
fourth exception is directed to Finding of Fact 10, which he submits is
unsubstantiated by the record. Our
review of the record establishes that there is competent substantial evidence
upon which to base this finding. [T.25-26,31]
Accordingly, Respondent’s Exception Number 4 is denied.
5. In
his fifth exception, directed to Finding of Fact 11, the Respondent contends
that Ms. Billingslea’s allegations concerning the Respondent’s reaction to
answering a call for her from a male friend were “hearsay and speculative.” However, the record reflects that Ms.
Billingslea testified about the incident on
direct without objection [T. 26-27], and then Respondent’s attorney
cross-examined Ms. Billingslea about the incident [T.73-75]. However, even if her statements about her
friend’s characterization of the Respondent as “rude” was hearsay, it was not
offered to prove that the Respondent was, in fact, rude, but instead, further
described the office environment and their working relationship. The weight to ascribe to the testimony was a
function of the Hearing Officer, which she ably carried out. Because there is competent substantial
evidence to support the finding, Respondent’s Exception Number 5 is denied.
6. The
sixth exception filed by the Respondent excepts to Finding of Fact 12, which he
claims is not based upon competent substantial evidence. He
objects especially to the Hearing Officer’s characterization of his
looking at Ms. Billingslea as “strange.”
We have reviewed the record, and it appears that this finding is based
upon Ms. Billingslea’s testimony. [T.26,31] Because there is competent
substantial record evidence to support the Hearing Officer’s finding of fact,
Respondent’s Exception Number 6 is denied.
7. His
next exception is directed to Finding of Fact 13, which the Respondent argues
is irrelevant. The finding itself
concerned the incident where the Respondent drove by Ms. Billingslea’s house. The appropriate standard of review at this
juncture in the proceedings is whether there is competent substantial evidence
to support the finding. If there is,
then the weight that the Hearing Officer assigned to that evidence is solely
within her province. Our review of the
record reveals that there is competent substantial evidence to support Finding
of Fact 13. [T.27-28,78-80] Accordingly, Respondent’s Exception Number 7 is
denied.
8. Respondent’s
eighth exception concerns Finding of Fact 15.
It is the Respondent’s contention that the incident described in the
finding is irrelevant and contains no competent substantial evidence of sexual
harassment. Respondent’s eighth
exception is denied. The issue before
us is not whether this one finding, in and of itself, is sufficient to conclude
that the Respondent violated Section 112.313(6), Florida Statutes. Instead, the issue we must address is
whether this finding of fact is supported by competent substantial evidence,
and our review of the record reveals the existence of such evidence. [T.28-29,66;
Advocate’s Exhibit No. 3, p. 62] Accordingly, Respondent’s Exception Number 8
is denied.
9. In
his ninth exception, directed to Finding of Fact 16, the Respondent essentially
takes issue with the fact that the Hearing Officer believed Ms. Billingslea’s
version of the events over that of the Respondent’s. That is the Hearing Officer’s prerogative. Heifetz, supra. Because there is competent substantial
evidence to support this finding [T.31-35,70-71; Advocate’s Exhibit Nos. 7 and
8], Respondent’s Exception Number 9 is denied.
10. In
his tenth exception, the Respondent excepts to Finding of Fact 17. For the same reasons discussed in the
preceding paragraph, Respondent’s Exception Number 10 is denied.
11. Respondent’s
eleventh exception, addressed to Finding of Fact 18, attacks Ms. Billingslea’s
credibility and argues that the finding itself is irrelevant and “fails as
competent substantial evidence.” As
previously stated, credibility determinations are for the Hearing Officer to
make, and where the finding is, as here, supported by competent substantial
evidence, we are constrained to accept the finding. Therefore, Respondent’s Exception Number 11 is denied.
12. Next,
Respondent assails Finding of Fact 19.
Nonetheless, the finding is based upon competent substantial evidence.
[T.34,86] Accordingly, Respondent’s
Exception Number 12 is denied.
13. In
his thirteenth exception, the Respondent excepts to Finding of Fact 20. Again, this finding of fact is a clear
example of the Hearing Officer crediting the testimony of Ms. Billingslea over
that of the Respondent.
Notwithstanding, the Respondent has asked us to reweigh the evidence and
reach a different conclusion. We are
compelled to decline his invitation and, therefore, deny Exception Number 13.
14. In
his exception to Finding of Fact 21, the Respondent contends that the finding
“does not constitute competent substantial evidence toward harassment. It constitutes competent substantial
evidence of Mr. Latham’s innocence.”
For the reasons expressed in our denial of Respondent’s eighth
exception, Respondent’s Exception Number 14 is denied.
15. In
his fifteenth exception, the Respondent excepts to Finding of Fact 22 on the
grounds that “it is completely false and
is rejected by Mr. Latham.”
Pursuant to Section 120.57(1)(b)10, Florida Statutes, the grounds for an
agency’s lawful rejection of a Hearing Officer’s finding of fact are much
narrower. Our review of the record
reveals that there is competent substantial evidence to support Finding of Fact
22. [T.37-39,44-45] Therefore, Respondent’s Exception Number 15 is denied.
16. Exception
Number 16 is directed at Finding of Fact 23. Respondent does not give any legal basis for rejecting this
finding of fact, but instead, attempts to supplement the Hearing Officer’s
finding of fact with additional facts concerning Ms. Billingslea’s alleged pattern
of filing similar complaints. Additional
fact-finding by the Commission is not permitted at this juncture in the
proceedings, and there is competent substantial evidence to support Finding of Fact 23. [T.38-39]
Accordingly, Respondent’s Exception Number 16 is denied.
17. Although
unnumbered, Respondent’s next exception is directed to Finding of Fact 26. Stating that he “conditionally accepts
Finding of Fact number 26,” and that “the complainant’s statements are
contradicted by Chairman Wolson,” it appears that the Respondent is suggesting
that the finding is somehow suspect.
Nonetheless, our review of the record reveals competent substantial
evidence to support Finding of Fact 26 [T.42-43,95], and the Respondent’s
unnumbered exception is denied.
18. Next,
in his Exception Number 17, the Respondent excepts to Finding of Fact 28,
claiming that it is “irrelevant to the allegation of sexual harassment” and
that it “produces no competent substantial evidence to any finding of
fact.” As we have stated previously,
the weight assigned to the evidence is within the Hearing Officer’s
province. Moreover, our review of the
record reveals that Finding of Fact 28 is supported by competent substantial
evidence. [T.97-98,111,114,270] Therefore, on this basis, Respondent’s
Exception Number 17 is denied.
19. In
Exception Number 18, the Respondent excepts to Finding of Fact 29 wherein he
writes that the Hearing Officer ignored certain evidence favorable to the
Respondent, and that her failure to weigh the evidence of the complete record
is “unreasonable and makes a finding of competent substantial evidence
incredible.” The challenged finding
concerns the Respondent’s assertion that Ms. Billingslea had been sexually
harassing him. The Hearing Officer
fulfilled her role as it is described in Heifetz, supra, and its
progeny. Moreover, the record reveals
competent substantial evidence to support Finding of Fact 29 [T.98-99;
Advocate’s Exhibit 3, p. 66, 120], thus, Respondent’s Exception Number 18 is
denied.
20. In
his Exception Number 19, the Respondent excepts to Finding of Fact 30, arguing
that it does not go to competent substantial evidence and that it is irrelevant. Notwithstanding, our review of the record
discloses competent substantial evidence to support Finding of Fact 30 [T.138;
Advocate’s Exhibit 4, p. 94-95], and on that basis, Respondent’s exception is
denied.
21. In
challenging Finding of Fact 32, Respondent’s Exception Number 20 attempts to
put a different “spin” on the evidence as found by the Hearing Officer. We are neither permitted nor inclined to
join Respondent in reweighing the evidence to reach a result different than
that found by the Hearing Officer.
There being competent substantial evidence to support Finding of Fact 32
[T.123-125], Respondent’s Exception Number 20 is denied.
22. Similarly,
Respondent’s Exception Number 21 takes issue with Finding of Fact 33, where the
Hearing Officer found that the Respondent knew it was wrong for a supervisor to
invite a subordinate employee into a sexual or romantic relationship. Because there is competent substantial evidence
to support this finding of fact [Advocate’s Exhibit 4, p. 37], Respondent’s
Exception Number 21 is denied.
23. In
his last exception to a finding of fact, the Respondent excepts to Finding of
Fact 34. The evidentiary basis for this
finding of fact appears to be the Joint Prehearing Stipulation, as modified at
hearing [T.5], wherein the parties stipulated:
“Since she has been at the Parole Commission, Ms. Billingslea has never
received formal discipline relative to any fact or issue in this case.” Notwithstanding, the Respondent now attempts
to supplement this finding with additional evidence contradicting the Hearing
Officer’s finding. Because there is no
legal basis to consider additional evidence at this time, Respondent’s
Exception Number 22 is denied.
24. In
Exception Number 23, the Respondent excepts to Conclusion of Law 36, arguing
that sexual harassment alone is not a violation of Chapter 112, Part III,
Florida Statutes, and is an overbroad application of legislative intent. As support for his argument, the Respondent
miss-cites Blackburn v. Commission on Ethics, 589 So. 2d 431 (Fla. 1st
DCA 1991). We disagree. As correctly stated by the Advocate in her
Proposed Recommended Order, infliction of sexually-charged remarks, gestures,
and actions on subordinate employees has supported findings of violations of
Section 112.313(6), Florida Statutes, in a number of cases before this
Commission. In re Lawrence R.
Hawkins, (Final Order No. COE 95-28, entered December 5, 1995); In re
Alfred Welch, 14 F.A.L.R. 4274 (1992); In re E. “Walt” Pellicer, 9
F.A.L.R. 4387 (1987); In re L. H. Lancaster, 5 F.A.L.R. 1567-A (1983);
and In re Raymond Bruner, 2 F.A.L.R. 1034 (1980). Moreover, in Garner v. Florida Commission
on Ethics, 415 So. 2d 67 (Fla. 1st DCA 1982), the court specifically
considered and rejected that respondent’s contention that Section 112.313(6),
Florida Statutes, was unconstitutionally vague, where he was alleged to have
violated Section 112.313(6) by sexually harassing two subordinate female
employees. We therefore deny
Respondent’s Exception Number 23.
25. Next,
the Respondent excepts to Conclusion of Law 37, arguing that the standard of
proof that should have been applied to him was the “clear and convincing
evidence” standard rather than the “preponderance of the evidence” standard
generally used in ethics complaint proceedings. It is the Respondent’s contention that since the “clear and
convincing evidence” standard is applicable in judicial discipline proceedings
and in license revocation proceedings, he deserved no less. He advanced a similar argument in his
Proposed Recommended Order, which was evidently rejected by the Hearing
Officer. We find no error in the
Hearing Officer’s application of the “preponderance of the evidence”
standard. This is the proper standard
of proof applicable to proceedings such as these and is consistent with our
precedent. Accordingly, Respondent’s
Exception Number 24 is denied.
26. In
his Exception Number 25, Respondent excepts to the Recommended Order’s
Conclusion of Law 38. This paragraph
merely recites the statutory language contained in Section 112.313(6), Florida
Statutes. Nonetheless, it appears that
the Respondent is suggesting that sexual harassment alone does not constitute
an abuse of office under Section 112.313(6), Florida Statutes. We reject this contention. As even the Respondent’s own attorney noted
in his Proposed Recommended Order (paragraph 65):
Section 112.313(6), Fla. Stat., includes
within its proscriptions sexual harassment of an employee or an attempt to
obtain sexual favors from a subordinate employee. Garner v. Commission on Ethics, 415 So. 2d 68 (Fla. 1st
DCA 1982); See also Commission on Ethics v. Lancaster, 421 So. 2d 711
(Fla. 1st DCA 1982) and Commission on Ethics v. Bruner, 384 So. 2d 1339
(Fla. 1st DCA 1980). Determinations of
whether a public official’s conduct of a sexual nature is violative of Section
112.313(6), Fla. Stat., is whether such conduct was done for the purpose of
seeking his own sexual gratification. In
re Lawrence R. Hawkins, Case No. 94-4715EC (DOAH Recommended Order, September
28, 1995); 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).
Because
we perceive no error on the part of the Hearing Officer in her application of
Section 112.313(6), Florida Statutes, to the facts she found, Respondent’s
Exception Number 25 is denied.
27. Next,
Respondent excepts to Conclusion of Law 39, wherein the Hearing Officer quoted
the statutory definition of “corruptly.” In this exception, numbered 26, the
Respondent apparently contends that the statutory definition of “corruptly” is
unconstitutionally vague. As stated
previously, a similar argument was considered and rejected in Garner v.
Florida Commission on Ethics, supra. We see no constitutional infirmities in Section 112.312(9),
Florida Statutes, or its application in the proceeding before us. Therefore, Respondent’s Exception Number 26 is
denied.
28. In
his Exception Number 27, directed at Conclusion of Law 40, the Respondent is
apparently arguing that the elements of proving a violation of Section
112.313(6) are unconstitutionally vague. We view the holding in Garner v. Florida Commission on Ethics,
supra, as dispositive of this issue and, therefore, deny Respondent’s
Exception Number 27.
29. In
Exception Number 28, which is directed at Conclusion of Law 41, the Respondent
attempts to distinguish the facts in his case from other proceedings where the
public officer faced similar charges alleging a violation of Section
112.313(6), Florida Statutes. While the
Respondent’s behavior may have been more subtle and less egregious than other
respondents who have been before us, the Hearing Officer nonetheless concluded
as ultimate findings that the Respondent attempted to use his official position
as a Florida Parole Commissioner and supervisor to Ms. Billingslea to make
sexually charged remarks to her for his own sexual gratification, and that he
corruptly used his position to attempt to gain sexual favors from her. Because the Hearing Officer’s ultimate
findings of fact are so closely tied to the credibility determinations she
made, and because the underlying basis for those factual findings is supported
by competent substantial evidence in the record, we find no error in Conclusion
of Law 41. Respondent’s Exception Number
28 is denied.
30. The
next exception takes issue with Conclusion of Law 42, where the Hearing Officer concluded that the Respondent attempted
to use his position to make sexually charged remarks to Ms. Billingslea for his
own sexual gratification. The
Respondent argues that the record contains no such remarks made by him and that
the allegation itself is vague and speculative. The remainder of Exception Number 29 is an effort on the part of
the Respondent to have us reweigh the evidence in order to reach a contrary
conclusion to that reached by the Hearing Officer. In denying this exception, we note that the Hearing Officer’s
findings of fact clearly detail the type and tenor of Respondent’s comments to
his secretary. Moreover, applying those
facts to the law, the Hearing Officer concluded that the Respondent’s actions
violated Section 112.313(6), Florida Statutes.
Because we find no error in the Hearing Officer’s legal conclusion as
excepted to by Respondent, his Exception Number 29 is denied.
31. Respondent’s
Exception Number 30 is directed at Conclusion of Law 43, wherein the Hearing
Officer concludes that the Respondent violated Section 112.313(6), Florida
Statutes. The Respondent contends that
the acts described in the complaint and the findings of fact made by the
Hearing Officer do not constitute an abuse of office. Respondent also suggests that the Commission reject the Hearing
Officer’s conclusions of law as being findings of fact labeled as conclusions
of law. We were reversed in Goin v.
Commission on Ethics, 658 So. 2d 1131 (Fla. 1st DCA 1995), for doing
precisely what Respondent is urging us to do.
As the Goin court noted, the question of whether the facts, as
found in the recommended order, constitute a violation of a rule or statute, is
a question of ultimate fact which the agency may not reject without adequate
explanation. Id., at 1138. Here, where the Hearing Officer’s findings
of fact are supported by competent substantial evidence, and where she has, in
our view, correctly applied the law to those facts, we are bound by law to
adopt the Hearing Officer’s recommendation as our own. Accordingly, Respondent’s Exception Number
30 is denied.
32. In
his last exception, Number 31, the Respondent excepts to the Hearing Officer’s
recommended penalty as being disproportionate to the actual conduct at
issue. The Hearing Officer recommended
a civil penalty of $4,000, as well as public censure and reprimand. In that the penalty the Hearing Officer
recommended is within the range of penalties provided for in Section 112.317,
Florida Statutes, Respondent’s Exception 31 is denied.
The Findings of Fact set forth in the Recommended are approved,
adopted, and incorporated herein by reference.
1. The Conclusions of Law
set forth in the Recommended Order are approved, adopted, and incorporated
herein by reference.
2. Accordingly, the
Commission on Ethics concludes that the Respondent, as a member of the Florida
Parole Commission, violated Section 112.313(6), Florida Statutes, by engaging
in unwanted sexually or romantically oriented behavior toward a subordinate
female employee.
We have reviewed the entire record and are familiar with our
precedents involving cases of a similar nature. Based upon that review, we believe that there are facts present
which support reducing the amount of the recommended civil penalty from $4000
to $2500. This amount is more
consistent with penalties we have recommended in other cases and is appropriate
to the nature and extent of the Respondent’s actions. Therefore, to that limited extent, the Hearing Officer’s penalty
recommendation is modified for Respondent’s violation of Section 112.313(6),
Florida Statutes.
In consideration of the foregoing and pursuant to Sections
112.317 and 112.324, Florida Statutes, the Commission recommends that the
Governor impose a civil penalty upon the Respondent, Gary D. Latham, in the
amount of $2500, and that he receive a public censure and reprimand.
ORDERED by the State of Florida Commission on Ethics meeting in
public session on Thursday, March 7, 1996.
______________________________
Date
______________________________
William J. Rish
Chairman
THIS ORDER
CONSTITUTES FINAL AGENCY ACTION. ANY PARTY WHO IS ADVERSELY AFFECTED BY THIS
ORDER HAS THE RIGHT TO SEEK JUDICIAL REVIEW UNDER SECTION 120.68, FLORIDA
STATUTES, BY FILING A NOTICE OF ADMINISTRATIVE APPEAL PURSUANT TO RULE 9.110,
FLORIDA RULES OF APPELLATE PROCEDURE, WITH THE CLERK OF THE COMMISSION ON
ETHICS, P.O. DRAWER 15709, TALLAHASSEE, FLORIDA 32317-5709 (physical address at
2822 Remington Green Circle, Suite 101); AND BY FILING A COPY OF THE NOTICE OF
APPEAL ATTACHED TO WHICH IS A CONFORMED COPY OF THE ORDER DESIGNATED IN THE
NOTICE OF APPEAL ACCOMPANIED BY THE APPLICABLE FILING FEES WITH THE APPROPRIATE
DISTRICT COURT OF APPEAL. THE NOTICE OF ADMINISTRATIVE APPEAL MUST BE FILED WITHIN
30 DAYS OF THE DATE THIS ORDER IS RENDERED.
cc: Mr.
Gary D. Latham, Respondent
Ms. Virlindia Doss,
Commission’s Advocate
Division of
Administrative Hearings
Ms. Deborah K.
Kearney, Complainant