94-174 Recommended Order on Reman, In re GARY LATHAM

=================================================================

PRIOR RECOMMENDED ORDER IN DOAH CASE NO. 95-3717EC

=================================================================

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

In re: GARY LATHAM, )

)

Respondent. ) Case No. 97-2954EC

________________________________)

RECOMMENDED ORDER ON REMAND

Pursuant to notice, a formal hearing was held in this case on October 2 and 3, 1995, at Tallahassee, Florida, before Susan B. Kirkland, a duly designated Administrative Law Judge of the Division of Administrative Hearings. On January 5, 1996, a Recommended Order was entered, recommending a finding of violation and a civil penalty of $4,000 and public censure and reprimand. On March 12, 1996, the Ethics Commission entered a final order adopting the administrative law judge's findings of fact and conclusions of law, but reducing the civil penalty to $2,500, and public censure and reprimand. An appeal was taken by the Respondent, and the First District Court of Appeals reversed, finding that the standard of proof which had been applied, that is, the preponderance of the evidence, was not the correct standard and that the correct standard was clear and convincing evidence. The Complaint was remanded to the administrative law judge for application of the correct standard of proof. By Order dated July 18, 1997, the administrative law judge ruled that no new evidence would be heard, but the parties would be permitted to submit proposed recommended orders addressing whether the Advocate established the violation by clear and convincing evidence.

APPEARANCES

The Advocate: Virlindia Doss

Assistant Attorney General

Attorney General's Office

The Capitol, Plaza Level 01

Tallahassee, Florida 32399-1050

For Respondent: Mark Herron, Esquire

At Hearing Akerman, Senterfit & Eidson, P.A.

216 South Monroe Street, Suite 200

Tallahassee, Florida 32301-0503

On remand: Gary D. Latham, pro se

4622 The Oaks Drive

Marianna, Florida 32446

STATEMENT OF THE ISSUES

Whether Respondent violated Section 112.313(6), Florida Statutes, by engaging in unsolicited and unwanted sexually or romantically oriented behavior toward a subordinate female employee, and if so, what penalty should be imposed.

PRELIMINARY STATEMENT

On July 18, 1995, the Florida Commission on Ethics entered an Order Finding Probable Cause to believe that Respondent, Gary D. Latham, as a member of the Florida Parole Commission, violated Section 112.313(6), Florida Statutes. On July 25, 1995, the case was forwarded to the Division of Administrative Hearings for assignment to an administrative law judge.

At the final hearing, the Advocate called the following witnesses: Claretha Billingslea Walker, Brenda Burkhalter, Jon Kraus, Kenneth Simmons, Edward Spooner, Gene Strickland, Linda Summers, Carolyn Tibbets, Frank Trueblood, and Judith Wolson. Advocate's Exhibits 1, 3, 4, 6-8, 13, 14, 18, 19, and 21 were admitted in evidence. Advocate's Exhibits 17 and 20 were proffered.

At the final hearing, the Respondent testified in his own behalf and called the following witnesses: Sharon Latham, Brenda Henry, Linda Summers, Mary Pons, and Murlene Amison. Respondent's Exhibits 3A, 3B, 3C, 4-8, and 10 were admitted in evidence.

At the final hearing the parties agreed to file proposed recommended orders within 15 days of the date of the filing of the transcript. The transcript was filed on October 23, 1995. The parties requested an extension of time within which to file their proposed recommended orders. The request was granted. The parties filed their proposed recommended orders on November 13, 1995.

The administrative law judge entered a Recommended Order on January 5, 1996, recommending that a final order be entered finding that Latham had violated Section 112.313(6), Florida Statutes, and recommending a civil penalty, public censure, and reprimand. The Commission on Ethics entered a Final Order on March 12, 1996, adopting the findings of fact and conclusions of law of the Recommended Order, but reducing the penalty to $2,500, public censure, and reprimand. Latham appealed the Final Order, and the Final District Court of Appeals reversed and remanded the case to the Commission on Ethics.

On June 26, 1997, the Florida Commission on Ethics remanded the case to the Division of Administrative Hearings, requesting that a recommended order be entered complying with the opinion of the First District Court of Appeals in Latham v. Commission on Ethics, 694 So. 2d 83 (Fla. 1st DCA 1997).

On July 18, 1997, an order was entered stating that a new evidentiary hearing would not be held and allowing the parties to file on or before August 22, 1997, proposed recommended orders which addressed the issue of whether the Advocate had established that the Respondent violated Section 112.313(6), Florida Statutes, by clear and convincing evidence. The parties filed their proposed recommended orders on August 22, 1997.

FINDINGS OF FACT

1. Respondent, Gary D. Latham (Latham), began serving as a member of the Florida Parole Commission (Parole Commission) on July 24, 1992. At the time of the final hearing, he was continuing to serve as a parole commissioner.

2. Claretha Billingslea Walker started to work for the Parole Commission on May 1, 1991, as an administrative secretary to the general counsel's office. At all times pertinent to this Complaint, she was known as Claretha Billingslea and will be referred to in this recommended order as Ms. Billingslea.

3. Effective May 27, 1994, Ms. Billingslea was promoted to the position of executive secretary to Commissioner Judith Wolson.

4. On July 1, 1994, Ms. Wolson became Chairman of the Parole Commission. Ms. Billingslea was promoted to the position of senior executive secretary to the chairman.

5. When a potential opening arose, Latham and Ms. Billingslea discussed the possibility of Ms. Billingslea accepting a position as Latham's executive secretary since Latham had previously interviewed Ms. Billingslea for an executive secretary position in his office approximately two years before. Ms. Billingslea was interested in coming to work for Latham because a number of her duties had been eliminated when Ms. Wolson was made chairman, but she was concerned about making such a move because she had been with Chairman Wolson's office such a short time.

6. Latham discussed with Chairman Wolson and her administrative assistant, Gene Strickland, the possibility of transferring Ms. Billingslea to Latham's open position. Both Chairman Wolson and Mr. Strickland agreed that it would be a good opportunity for Ms. Billingslea to learn more about the duties in a commissioner's office because the work in the chairman's office was more administrative than the work in a commissioner's office. Neither Mr. Strickland nor Chairman Wolson was dissatisfied with Ms. Billingslea's work.

7. Prior to hiring Ms. Billingslea, Latham also discussed the hiring with his future administrative assistant, Brenda Henry, and with his wife.

8. Effective August 5, 1994, Ms. Billinglea was reassigned to the position of executive secretary to Latham. Because there is only one position of senior executive secretary at the Parole Commission (the chairman's secretary), this reassignment was nominally a demotion. It did not act as a demotion, however, because Ms. Billingslea's salary and benefits remained unchanged.

9. In her capacity as Latham's executive secretary, Ms. Billingslea reported directly to Latham. As a career service employee, Ms. Billingslea could not be unilaterally fired by Latham, but as her direct supervisor Latham could set the wheels in motion for her termination. Ms. Billinsglea understood that the chairman would have to approve her termination. Latham had the authority to assign tasks to Ms. Billingslea and to grant or deny her leave or flex time.

10. From the start of Ms. Billingslea's employment in Latham's office, Latham engaged in comments and behavior of questionable propriety. He told her that he would not be able to get any work done with such a pretty secretary. Ms. Billingslea took this as a joke.

11. On another occasion, one of Ms. Billingslea's male friends complained to her that Latham had been rude to him when he called. She thought Latham might have been upset that she was receiving too many personal calls, but when she asked Latham about it, he told her no and said, "I guess I'll just have to get used to guys calling all the time with such a pretty secretary."

12. Latham often stared at Ms. Billingslea, looking her up and down. In describing these looks, Ms. Billingslea stated, "The way he looks at me, it is really weird. And it makes me feel uncomfortable, the way he kind of stares and looks me up and down. It will be almost as if he's going to say something but he never said anything." Once when he was looking at her in this strange way, Ms. Billingslea asked him whether there was something he wanted to say, to which he responded, "No, that was my sexy look." At this time she took it as a joke.

13. One day Latham told Ms. Billingslea that he had been on his way to a friend's house and had gotten lost and ended up on her street. He said that he had gone by her house and that she had a nice place. He asked her why she kept her blinds closed so tightly.

14. When the Parole Commission denies parole, a report referred to as a 947.18 report is completed, justifying the decision not to grant the parole. Procedurally, the Parole Commission will make a decision to grant or deny parole at a meeting. The case is then assigned to a commissioner to prepare a 947.18 report. The report is prepared in the office of the commissioner, and two weeks after the initial consideration the case is placed back on the agenda for review and acceptance.

15. At its meeting on September 21, 1994, the Parole Commission denied parole for an inmate who had been convicted of sexually abusing his daughters. Latham was assigned to prepare the 947.18 report. Ms. Henry drafted the report for Ms. Billingslea to type. The report was very sexually explicit. After the report was typed, Ms. Billingslea took it to Latham for his review. Both Latham and Ms. Billingslea commented that it was an interesting case. Latham closed his eyes and in a low voice began to describe the graphic details of the sexual abuse to Ms. Billingslea. Ms. Billingslea later asked Ms. Henry if the file contained any pictures.

16. On September 27, 1994, Latham went into Ms. Billingslea's office and sat down in front of her desk. He informed her that he had "the hots" for her. He told her that she had done nothing to make him approach her in this way but that he did not know what had come over him lately; he had been attracted to a lot of young pretty women, and she was just "such a doll." He told her that he had nasty thoughts about her while he taught Sunday School. When she told him that she could not work for him if she were to be with him sexually, he responded that she would not be working for him but that he would be working for her. When she told him that she was not interested, he became defensive, stating that he had a lot of political power. His last words to her in that encounter were, "I might not be able to keep my hands to myself."

17. Later that same day, as Ms. Billingslea was preparing to leave work, Latham asked her to stay late. Over and over, he asked her to stay and "be with him," initially standing behind her chair and preventing her from pushing back.

18. Ms. Billingslea took Latham's remarks and actions on September 27 as an invitation to a sexual or romantic relationship, which she had neither solicited nor encouraged. Ms. Billingslea did not misunderstand Latham or his intentions.

19. Ms. Billinsglea was afraid that her rejection of Latham's advances would cost her her job. She believed that Latham could cause her to be fired.

20. On September 28, 1994, Ms. Billingslea was ill. She called her doctor's office and requested that the doctor call in a prescription for her to a local pharmacy. The doctor's office did call in a prescription. Ms. Billingslea advised Latham that she felt ill, to which Latham responded that she had just "better be to work." Ms. Billingslea took this remark as an admonishment not to take sick leave.

21. On October 3, 1994, Ms. Billingslea was late for work. She tried to call the office to advise that she would be late, but no one answered the telephone. On October 3, 1994, Latham expressed concern to Ms. Billingslea that she was abusing or not accurately reporting her leave time.

22. Ms. Billingslea perceived that Latham's attitude toward her became cool after their conversation on September 27. Latham had never said anything to Ms. Billingslea about being tardy or being absent from work prior to September 27 because he did not think that it was a big deal. After Ms. Billingslea spurned his advances, he began to voice his dissatisfaction with her work hours.

23. Ms. Billingslea went to the Parole Commission's personnel officer, Frank Trueblood. She wanted to take time off from work to look for another job and asked Mr. Trueblood if there was any type of leave request that she could make which could not be denied by Latham.

24. Mr. Trueblood questioned Ms. Billingslea about the underlying nature of her problems, and she told him about Latham's actions. Ms. Billingslea did not want to create a problem but wanted to find another job.

25. Mr. Trueblood told Ms. Billingslea that she could file an informal complaint against Latham and that it would remain confidential.

26. On October 5, 1994, Ms. Billingslea filed an informal complaint against Latham. About 5:00 p.m. that day she met with Chairman Wolson, Mr. Strickland, and Clay Phillips to discuss the situation. Chairman Wolson told Ms. Billingslea that she would be transferred to another section. Ms. Billinglea did not display eagerness to file a formal complaint against Latham.

27. Latham saw Ms. Billingslea in Chairman Wolson's office, and after Ms. Billingslea left, he asked to speak with Chairman Wolson. Latham wanted to know what was going, on but Chairman Wolson would only tell him that Ms. Billingslea was being transferred to Clemency and that Murlene Amison would be transferred to his office as his secretary.

28. At first Latham was upset at the news of the transfer and told Chairman Wolson that it would be setting a dangerous precedent to make the transfer. Latham told Chairman Wolson that he would like to "save face" in the matter and be the one who would offer the transfer to Ms. Amison. Latham then became exuberant about the transfer, closing his fist, punching it up with a victory signal and saying, "Yes." He left Chairman Wolson's office.

29. A few minutes later, Latham returned to Chairman Wolson's office and told her that he thought he had figured out what had happened. He said that Ms. Billingslea had been sexually harassing him and that he had talked with her and explained that he did not want to have an affair with her. This was the first time anyone at the Parole Commission had heard Latham's claim of sexual harassment by Ms. Billingslea.

30. On October 6, 1994, Ms. Billingslea filed a formal complaint against Latham. Latham tried to find out from Mr. Trueblood whether Ms. Billingslea had filed a sexual harassment complaint against him, but Mr. Trueblood would not tell him.

31. Effective October 7, 1994, Ms. Billingslea was transferred to the position of executive secretary in Clemency.

32. On October 7, 1994, Latham called Mr. Strickland to his office and thanked Mr. Strickland for the personnel move, indicating that it had "sav[ed] his butt." Latham asked Mr. Strickland to close the door and then told him that he had been attracted to Ms. Billingslea but nothing had happened, and now, because of the move, nothing would happen. Latham wanted to know what was on the paperwork regarding the transfer. Mr. Strickland told him that it indicated a lateral transfer.

33. Latham knew that it was wrong for a supervisor to invite a subordinate employee into a sexual or romantic relationship.

34. Since she has been at the Parole Commission, Ms. Billingslea has never received formal discipline relevant to any fact or issue in this case.

CONCLUSIONS OF LAW

35. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding. Section 120.57(1), Florida Statutes.

36. Section 112.323, Florida Statutes, and Rule 34-5.0015, Florida Administrative Code, authorize the Commission on Ethics to conduct investigations and to make public reports on complaints concerning violations of Part III, Chapter 112, Florida Statutes.

37. The Advocate must establish by clear and convincing evidence that Latham violated Section 112.313(6), Florida Statutes. Latham v. Commission on Ethics, 694 So. 2d 83 (Fla. 1st DCA 1997).

38. Section 112.313(6), Florida Statutes provides:

No public officer or employee of an agency shall corruptly use or attempt to use his official position or any property or resource which may be within his trust, or perform his official duties, to secure a special privilege, benefit, or exemption for himself or others. This section shall not be construed to conflict with s. 104.31

39. The term "corruptly" is defined by Section 112.312(9), Florida Statutes, to mean:

[D]one with a wrongful intent and for the purpose of obtaining, or compensating or receiving 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.

40. In order for it to be concluded that Respondent violated Section 112.313(6), Florida Statutes, the Advocate must establish the following elements:

a. The Respondent must have been a public officer or employee.

b. The Respondent must have:

(1) used or attempted to use his official position or any property or resources within his trust, or

(2) performed his official duties.

c. The Respondent must have acted to secure a special privilege, benefit, or exemption for himself or others.

d. In so doing, the Respondent must have acted corruptly, that is, with wrongful intent and for the purpose of benefiting himself or another person from some act or omission which was inconsistent with the proper performance of his public duties.

41. Section 112.313(6), Florida Statutes, 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); 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).

42. The parties have stipulated that Latham, as Florida Parole Commissioner, was subject to the requirements of Chapter 112, Florida Statutes. Latham 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. Although Latham did not have the ability to outright fire Ms. Billingslea, he did have the authority to recommend her termination, to assign her duties, and to evaluate her work performance. In short, Latham had the ability to make the workplace very uncomfortable for Ms. Billingslea.

43. Having judged the credibility of the witnesses, I find that Latham did make sexual remarks to Ms. Billingslea. He admitted to Gene Strickland that he was attracted to Ms. Billingslea and that the transfer "saved his butt." Latham knew that it was wrong to make the sexual remarks to Ms. Billingslea and that a romantic or sexual relationship with Ms. Billingslea would be inconsistent with the proper performance of his duties as a Florida Parole Commissioner. His remarks were intentional. His remarks that he had "the hots" for Ms. Billingslea and that he "might not be able to keep my hands to myself" were not ambiguous and could not be considered to be of a joking nature. The remarks were clearly intended to let Ms. Billingslea know that Latham was interested in a romantic relationship with her. Latham corruptly used his position as a Florida Parole Commissioner to attempt to gain sexual favors from Ms. Billingslea. Thus, the Advocate has established by clear and convincing evidence that Latham violated Section 112.313(6), Florida Statutes.

44. The Advocate has argued that remarks that Latham had made to various employees of the Parole Commission after the employees had talked to investigators concerning allegations of sexual harassment constitute evidence of guilt on Latham's part as it relates to the issues concerning Ms. Billingslea. The Advocate's argument is rejected. See Keller v. State, 586 So. 2d 1258 (Fla. 5th DCA 1991). The employees had already spoken to the investigators, and from the record it appears that Latham was concerned about allegations that the employees had made concerning his actions toward them not his actions toward Ms. Billingslea.

45. Section 112.317, Florida Statutes, provides penalties which may be imposed for a violation of the Code of Ethics for Public Officers and Employees. Section 112.317(1)(a), provides:

(1) Violation of any provision of this part . . . shall, pursuant to applicable constitutional and statutory procedures, constitute grounds for and may be punished by, one or more of the following:

(a) In the case of a public officer:

1. Impeachment.

2. Removal from office.

3. Suspension from office.

4. Public censure and reprimand.

5. Forfeiture of no more than one-third salary per month for no more than 12 months.

6. A civil penalty not to exceed $5,000.

7. Restitution of any pecuniary benefits received because of the violation committed.

46. Sexual harassment of a subordinate employee is a serious offense. However, Latham's behavior is less egregious than some that the Commission on Ethics has addressed. See In re Lawrence Hawkins, 18 FALR 2078 (Ethics 1996) and In re Alfred Welch, 14 FALR 4274 (Ethics 1992). Therefore, I recommend that Latham be given a public censure and reprimand, and be fined $4,000.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered finding that Gary D. Latham violated Section 112.313(6), Florida Statutes, and recommending a civil penalty of $4,000 be imposed, as well as a public censure and reprimand.

DONE AND ENTERED this 8th day of September, 1997, in Tallahassee, Leon County, Florida.

___________________________

SUSAN B. KIRKLAND

Administrative Law Judge

Division of AdministrativeHearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(904) 488-9675 SUNCOM 278-9675

Fax Filing (904) 921-6847

Filed with the Clerk of the

Division of Administrative Hearings

this 8th day of September, 1997.

COPIES FURNISHED:

Virlindia Doss, Advocate

Florida Commission on Ethics

Office of the Attorney General

The Capitol, Plaza Level 01

Tallahassee, Florida 32399-1050

Gary D. Latham, pro se

4622 The Oaks Drive

Marianna, Florida 32446

Mark Herron, Esquire

Akerman, Senterfit & Eidson, P.A.

216 South Monroe Street, Suite 200

Tallahassee, Florida 32301-0503

Bonnie Williams, Executive Director

Florida Commission on Ethics

Post Office Drawer 15709

Tallahassee, Florida 32317-5709

Phil Claypool, General Counsel

Florida Commission on Ethics

Post Office Drawer 15709

Tallahassee, Florida 32317-5709

Kerrie J. Stillman, Clerk

Florida Commission on Ethics

Post Office Drawer 15709

Tallahassee, Florida 32317-5709