STATE OF FLORIDA
DIVISION OF
ADMINISTRATIVE HEARINGS
IN RE: DELPHINE GISSENTER, )
) Case
No. 97-2661EC
Respondent. )
________________________________)
Pursuant to notice,
a formal hearing in this case was held on September 25, 1997, in West Palm
Beach, Florida, and on October 20, 1997, by videoconference between Tallahassee
and West Palm Beach, Florida, before Carolyn S. Holifield, Administrative Law
Judge, Division of Administrative Hearings.
APPEARANCES
Advocate: Virlindia Doss
Assistant Attorney
General
Attorney General's
Office
The Capitol, Plaza Level
01
Tallahassee,
Florida 32399-1050
For
Respondent: James Green, Esquire
One Clearlake Center,
Suite 1503
250 Australian Avenue,
South
West Palm Beach,
Florida 33401
STATEMENT OF THE
ISSUE
Whether Respondent
violated Sections 112.313(6), Florida Statutes, by using a Riviera Beach
Housing Authority credit card for personal use and, if so, what penalty is
appropriate.
PRELIMINARY
STATEMENT
On March 11, 1997,
the Florida Commission on Ethics (Commission) entered an Order Finding Probable
Cause to believe that Respondent, Delphine Gissenter (Respondent), while
serving as a Commissioner on the Riviera Beach Housing Authority Board,
violated Sections 112.313(6), Florida Statutes, by using a Riviera Beach
Housing Authority credit card for personal use. On May 28, 1997, the matter was forwarded to the Division of
Administrative Hearings to conduct a formal hearing.
When the final
hearing convened on September 25, 1997, Respondent, who had previously been pro
se, appeared with counsel. At that
time, counsel for Respondent moved to continue the hearing. Over the Advocate's objection, the motion
was granted but only as to the Respondent's presentation of witnesses and
evidence not available on September 25, 1997.
The final hearing reconvened on October 25, 1997, at which time
Respondent again moved to continue the hearing. The motion was denied and the hearing was conducted as
noticed.
Prior to the final
hearing, the parties stipulated to facts which were admitted and required no
proof. At hearing, the Advocate for the
Commission called seven witnesses: Owen
Dixon; Jessie Moye; Bernard Conko; Marion White; Clara Williams; Sirnee Borsay;
and Bob Malone. The Advocate introduced
and had fifteen exhibits admitted into evidence. Respondent called two witnesses, Patrick Tenaty and Delores
Evans, and offered no exhibits into evidence.
Respondent requested and was given additional time to file Certificates
of Non-Appearance relative to three individuals who had been subpoenaed, but
did not appear at hearing. Copies of
the subpoenas for these individuals and Return of Service forms were filed by
Respondent on October 27,
1997.
The proceeding was
recorded but not transcribed. By
agreement of the parties, the time for filing proposed
recommended orders
was set for November 10, 1997. Both
parties filed proposed recommended orders.
FINDINGS OF FACT
1. At
all times pertinent to this proceeding, Respondent was a member of the Board of
Commissioners of the Riviera Beach, Florida Housing Authority (Housing
Authority/Board). Respondent was
appointed to the Housing Authority by the mayor of Riviera Beach, Florida, and
served from January 1994 until September 1996.
In that public position, Respondent was subject to the requirements of
Part III, Chapter 112, Florida Statutes, the Code of Ethics for Public Officers
and Employees.
2. The
Housing Authority is empowered to operate and make decisions relative to
housing projects located in the City of Riviera Beach, Florida. The property operated by the Housing
Authority constitutes an area of approximately 14.5 acres or about three city
blocks.
3. In February 1995, the Housing Authority voted
to obtain and issue credit cards to its commissioners and staff members. At this meeting, it was made clear that
these credit cards were to be used by commissioners and staff members
exclusively for travel expenses incurred while engaged in business related to
the Housing Authority.
4. Respondent attended the February 1995
meeting at which the credit card issue was presented and approved by the
Housing Authority and, also, participated in the vote on this issue. Accordingly, Respondent was aware of the
intended and appropriate purpose for which these credit cards could be
used.
5. Although the Housing Authority credit cards
were issued in the individual names of commissioners and staff members,
they were kept at the Housing Authority
office. When a commissioner or staff
member needed to use the credit card, that individual had to go the Housing
Authority office to retrieve the card.
Prior to obtaining their credit cards, commissioners or staff members
were required to sign a log, indicating the date the card was checked out. Upon completion of the Housing Authority
related travel and business, the commissioner or staff member was required to
return the credit card to the Housing Authority office. Individual commissioners and staff members
were not required to pay the credit card bills. Rather, under procedures implemented by the Housing Authority,
these credit card bills were sent to and paid by the Board.
6. At all times relevant to this proceeding and
while serving as a Commissioner of the Housing Authority, Respondent worked as
a confidential informant for the Palm Beach County Sheriff's Office. In her capacity as a confidential informant,
Respondent worked on cases in West Palm Beach as well as in Riviera Beach,
Florida. Respondent was sometimes
compensated by the Palm Beach Sheriff's Office for information that she
provided.
7. At all times relevant hereto, Owen Dixon was
the Executive Director of the Housing Authority. In this capacity, Mr. Dixon was responsible for approving and
authorizing all business related travel for commissioners of the Housing
Authority. Commissioners were required
to obtain prior approval for all Board related travel expenses if they wanted
to use the credit cards issued by the Housing Authority and expected the Board
pay the expenses.
8. Mr. Dixon authorized Respondent to use her
Housing Authority credit card to rent a vehicle for a one-day trip to conduct
business associated with the Board.
Based upon Respondent’s request and
Mr. Dixon's authorization, the trip was to be taken on or about April
27, 1995. The reason Mr. Dixon approved
use of the credit card for this one-day trip was that it was: (1) related to
Housing Authority business and (2) appropriate under the guidelines established
by the Housing Authority.
9. On April 27, 1995, Respondent went to the
Housing Authority office and signed out the Authority credit card bearing her
name. On this same day, Respondent went
to Payless Car Rental, and using her Board-issued credit card, rented a
vehicle. Although Respondent's request and Mr. Owen's approval was for a one-day
trip, Respondent kept the Payless rental car until May 4, 1995. During this one-week period, Respondent put 513
miles on the vehicle that she rented from Payless.
10. On May 4, 1995, after returning the Payless
rental car, Respondent rented a vehicle
from National Car Rental. When
Respondent rented the car from National Car Rental, she used her Housing Authority
credit card.
11. On May 4, 1995, after returning the Payless
rental vehicle and renting a vehicle from National Car Rental, Respondent
returned the Housing Authority credit card that had been issued in her name.
12. Mr. Dixon never authorized Respondent to
keep the Payless rental vehicle for more than the one day. Furthermore, Respondent neither sought nor
obtained approval from Mr. Dixon or anyone else connected with the Housing
Authority to rent a vehicle from National Car Rental on or after May 4,
1995. Moreover, there were no Housing
Authority matters that required Respondent to rent a car for the period between
April 28 through May 4, 1995, and any time period subsequent thereto.
13. On June 5, 1995, the Housing Authority
received a bill from Visa for charges incurred by Respondent for renting a
vehicle from Payless Car Rental. The
cost for Respondent's renting the Payless vehicle from April 27 through May 4,
1995, was $296.61. This total amount
was charged to the Visa credit card issued by the Housing Authority to
Respondent in her name. It was only
after this bill was received by the Housing Authority did Mr. Dixon learn that
Respondent had kept the Payless vehicle for one week, rather than the one day
that he had authorized.
14. On June 6, 1995, Mr. Dixon wrote a letter to
Respondent asking her to reimburse the Housing Authority $288.70, the part of
the total bill that was not attributable to Housing Authority business. In response to the letter, Respondent made
partial reimbursement to the Housing Authority in the amount of $200 on June
23, 1995. Respondent fully reimbursed
the Housing Authority for the Payless car rental on July 10, 1995, when she
remitted $100 to the Housing Authority.
Upon payment of the $100, Mr. Dixon's secretary, Marion White, told
Respondent that she had overpaid by $11.30 the amount owed to the Housing
Authority. Respondent then directed
Mrs. White to "just hold on to" the balance.
15. Approximately two weeks after Respondent
fully reimbursed the Housing Authority for the Payless car rental, the Housing
Authority received a bill from Visa, dated July 28, 1995. This Visa bill reflected charges of $188.84
incurred at National Car Rental that had been made on Respondent's Housing
Authority credit card. Several days
later, in a courtesy reminder dated July 31, 1995, Visa notified the Housing
Authority that the credit limit on Respondent's credit card had been
exceeded. The courtesy notice showed
additional billing to the account of $997
from National Car Rental. Within
a few days, the Housing Authority received a bill for additional charges of
$214.99 from National Car Rental that had been made on Respondent's credit
card.
16. Respondent charged a total of $1,400.94 to
her Housing Authority credit card for the National car rental. This amount represents the cost for
Respondent's renting a vehicle from National Car Rental for approximately eighty
(80) days. As of the date of the final
hearing, Respondent had not reimbursed the Housing Authority for the National
Car Rental bill.
17. On or about July 4, 1995, Respondent signed
up for membership in National Car Rental's "Emerald Club." Membership in the Emerald Club was available
to individuals who had been or were customers of National Car Rental. Emerald Club members were entitled to
discounts and express service, and were required to have a primary credit card
number listed with National Car Rental.
Because prospective Emerald Club members had been or were customers of
National Car Rental, the primary credit card number could be obtained from the
company's computer system based on credit card information acquired during
prior transactions.
18. On May 4, 1995, when Respondent initially
rented a vehicle from National Car Rental, she used her Housing Authority
credit card. Thereafter, Respondent's
Housing Authority credit card number appeared in National Car Rental's computer
system and was listed as the primary credit card for Respondent's Emerald Club
membership. Respondent never used a
personal credit card when she rented a vehicle from National Car Rental.
19. The expenses incurred by Respondent as a
result of renting a vehicle from National Car Rental were never billed to any
credit card other than her Housing Authority credit card. Also, upon returning the vehicle rented from
National Car Rental, Respondent never paid a sufficient amount in cash to
prevent a balance from being billed to her Housing Authority credit card.
20. There is no dispute that Respondent incurred
the charges for car rental from National Car Rentals. In fact, at a meeting
held in late July 1995, and attended by Mr. Owens, the Mayor of Riviera Beach,
a Housing Authority Commissioner, the attorney for the Housing Authority Board,
and a Palm Beach Sheriff's deputy, Respondent admitted that she had rented a
vehicle from National Car Rental. It
was during this meeting that Respondent first divulged that she was a
confidential informant. According to
Respondent, she had been using the car rented from National in connection with
her work as an informant. However,
Respondent indicated that she had paid the bills incurred as a result of the
National Car Rental expenses. Despite
this representations, Respondent never provided documentation that she made
such payments.
21. Prior to the meeting held in late July 1995,
no one connected with the Housing Authority knew that Respondent has worked as
a confidential informant. Likewise,
neither Mr. Dixon nor anyone associated with the Housing Authority ever
authorized Respondent to use the Housing Authority credit card for such
purpose.
22. After Respondent stated that she was using
the Housing Authority credit card in her work as a confidential informant,
Respondent was told that such use was improper. Nonetheless, Respondent kept the car rented from National Car
Rental for several more days. Moreover,
Respondent allowed these as well as the other National Car Rental expenses to be
charged to her Housing Authority credit card.
When Respondent returned the car to National Car Rental, because she did
not pay the bill, the car rental expenses were billed to and, eventually, paid
by the Housing Authority.
23. Respondent's use of the Housing Authority
credit card for car rental for personal use or travel, or for work as a
confidential informant or any other private employment is contrary to the
mission and public purpose of the Housing Authority.
24. On August 4, 1995, the Board rescinded
Respondent's authorization for future travel related to the Housing Authority
due to her misuse of Housing Authority resources. At this meeting, Respondent again told Commissioners of the Board
that she had paid the National Car Rental bills. However, again, no documentation supporting this claim was
presented by Respondent.
25. The Palm Beach County Sheriff's Office never
directed nor required Respondent to rent a vehicle to conduct her work as a
confidential informant. In cases where
the Palm Beach Sheriff's Office determines that it is necessary for an
informant to have a rental car, that agency must give prior approval for such
rental. Also, any costs associated with
such an authorized and approved car rental are paid by the Palm Beach County
Sheriff's Office.
26. The
Division of Administrative Hearings has jurisdiction over the parties and the
subject matter of this proceeding.
Section 120.57(1), Florida Statutes.
27. Section
112.322, Florida Statutes, and Rule 34-5.0015, Florida Administrative Code,
authorize the Commission to conduct investigations and to make public reports
on complaints concerning violations of Part III, Chapter 112, Florida Statutes,
(the Code of Ethics for Public Officers and Employees).
28. The
burden of proof, absent a statutory directive to the contrary, is on the party
asserting the affirmative of the issue in the proceedings. Department of Transportation v. J.W.C.
Co., Inc., 396 So. 2d 778 (Fla. 1st DCA 1981); Balino v. Department of
Health and Rehabilitative Service, 348 So. 2d 349 (Fla. 1st DCA 1977). In this proceeding, the Commission, through
its Advocate, is asserting the affirmative: that the Respondent violated
Sections 112.313(6), Florida Statutes.
Therefore, the Commission must establish by clear and convincing
evidence the elements of Respondent's alleged violations. Latham v. Florida Commission on
Ethics, 694 So. 2d 83 (Fla. 1st DCA 1997) citing Department of Banking
and Finance v. Osborne Stern, 670 So. 2d 932 (Fla. 1996) and Ferris v.
Turlington, 510 So. 2d 292 (Fla.
1987).
29. It has been alleged that Respondent violated
Section 112.313(6), Florida Statutes,
by using a Housing Authority credit card for her personal use. That section provides the following:
MISUSE OF PUBLIC
POSITION. No public officer, employee
of an agency, or local government attorney 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 section 104.31
30. The term “corruptly” is defined by Section
112.312(9), Florida Statutes (1993), as follows:
“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 proper performance of his public
duties.
31. In order for it to be concluded that the
Respondent violated Section 112.313(6), Florida Statutes, the Advocate must
establish the following elements:
1. The Respondent must have been a public
officer or an employee of an agency.
2. The Respondent must have used or attempted
to use his official position or any other property or resources within his
trust to secure a special privilege, benefit or exemption for himself or
others.
3. 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 is inconsistent with the proper
performance of public duties.
32. The parties have stipulated that Respondent,
as a Commissioner of the Housing Authority, was subject to the requirements of
Part III, Chapter 112, Florida Statutes.
Therefore, this element is proven.
33. To establish a violation of Section
112.313(6), Florida Statutes, it must next be established that Respondent used
a resource within her trust to secure a special privilege, benefit, or
exemption for her. This element has
been proven by the Advocate.
34. The evidence clearly established that
Respondent used the Housing Authority credit card issued in her name to rent
vehicles for her personal use. This
credit card was issued to Respondent, as a Commissioner of the Board, solely
for the purpose of charging expenses involving Housing Authority business. Nevertheless, Respondent used this resource
within her trust to secure a special benefit for herself. Based on the clear evidence presented at
hearing, Respondent used the Housing Authority credit card to rent vehicles for
an extended period of time. Respondent's
use of these rental cars and the expenses
related thereto were
for personal use and were not related to business of the Housing Authority.
35. Finally, to establish a violation of Section
112.313(6), Florida Statutes, it must be proven that Respondent acted
corruptly, that is, with wrongful intent and for the purpose of benefiting her
from an act which is inconsistent with the proper performance of her public
duties. The Advocate has proven this
element.
36. The evidence clearly established that
although Respondent received approval from the Board's Executive Director to
rent a car for one day, Respondent kept the car rented from Payless for one
week. Also, the clear evidence
established that on the day Respondent returned the Payless vehicle, but prior
to the time she turned in her Housing Authority credit card, she rented a car
from National Car Rental, using that credit card.
37. The car rental from National Car Rental was
not related to Housing Authority business, but was for Respondent's personal
use. This is clearly evident not only
by Respondent's actions, but also by the sequence of those actions. First, on May 4, 1995, Respondent returned
the Payless vehicle. Next, on that same
day, Respondent rented a car from National using the Housing Authority credit
card. Finally, on May 4, 1995,
Respondent returned her credit card to the Housing Authority office, but not
until after she rented a car from National using that card. By using her Housing Authority credit card
in this manner, Respondent acted in a manner calculated to obtain a rental car
for her personal use.
38. The Advocate for the Commission has
established each of the requisite elements by clear and convincing evidence
and, thus, has proven that Respondent violated Section 112.313(6), Florida
Statutes.
RECOMMENDATION
Based on the
foregoing Findings of Fact and Conclusions of Law, it is
RECOMMENDED that Final Order
and Public Report be entered by the Florida Commission on Ethics finding that
Respondent, Delphine Gissenter, violated Section 112.313(6), Florida Statutes,
and imposing a civil penalty of $3000; issuing a public censure and reprimand;
and requiring restitution to the Riviera Beach Housing Authority in the amount
of $1400.94.
DONE AND ENTERED this 29th day of December,
1997, in Tallahassee, Leon County, Florida.
___________________________________
CAROLYN S.
HOLIFIELD
Administrative
Law Judge
Division of
Administrative Hearings
The DeSoto
Building
1230 Apalachee
Parkway
Tallahassee,
Florida 32399-3060
(850) 488-9675 SUNCOM 278-9675
Fax Filing (850)
921-6847
Filed with the
Clerk of the
Division of
Administrative Hearings
this 29th day of December, 1997.
COPIES
FURNISHED:
Virlindia Doss
Assistant Attorney
General
Attorney's
General's Office
The Capitol, Plaza
01
Tallahassee,
Florida 32399-1050
Kerrie Stillman
Complaint
Coordinator
Florida Commission
on Ethics
Post Office Box
15709
Tallahassee,
Florida 32317-5709
James Green,
Esquire
One Clearlake
Centre, Suite 1503
250 Australian
Avenue
West Palm Beach,
Florida 33401
Bonnie Williams
Executive Director
Florida Commission
on Ethics
Suite 101
2822 Remington
Green Circle
Post Office Drawer
15709
Tallahassee,
Florida 32317-5709
Phil Claypool,
General Counsel
Florida Commission
on Ethics
Suite 101
2822 Remington
Green Circle
Post Office Drawer
15709
Tallahassee,
Florida 32317-5709
NOTICE OF RIGHT TO
SUBMIT EXCEPTIONS
All parties have
the right to submit written exceptions within 15 days from the date of this
recommended order. Any exceptions to
this recommended order should be filed with the agency that will issue the
final order in this case.