95-17 Recommended Order, In re NANCY J. SANDS

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

In re: NANCY J. SANDS )

) Case No. 97-2865EC

Respondent. )

________________________________)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case on January 30, 1998, at Palatka, Florida, before Susan B. Kirkland, a duly designated Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

Advocate: Eric S. Scott, Esquire

Florida Commission on Ethics

Office of the Attorney General

The Capitol, Plaza Level 01

Tallahassee, Florida 32399-1050

For Respondent: James L. Padgett, Esquire

Padgett and Morris

10 Central Avenue

Crescent City, Florida 32112

STATEMENT OF THE ISSUE

Whether Respondent violated Section 112.313(6), Florida Statutes, and if so, what penalty should be recommended.

PRELIMINARY STATEMENT

On November 30, 1995, the Florida Commission on Ethics entered an Order Finding Probable Cause to believe that Respondent, Nancy J. Sands (Sands), former Welaka Town Clerk, violated Section 112.313(6), Florida Statutes, by allowing individuals to make purchases through the Town of Welaka's accounts, thus, avoiding the payment of sales tax. The case was forwarded to the Division of Administrative Hearings for assignment to an administrative law judge. The case was originally assigned to Administrative Law Judge, Carolyn S. Holifield, but was transferred to Administrative Law Judge, Susan B. Kirkland, to conduct the final hearing.

At the final hearing, the parties' Joint Exhibits A and B were entered in evidence. The Advocate called Grace Evans as his witness, and the Respondent testified in her own behalf.

The parties agreed to file proposed recommended orders on or before February 9, 1998. The Advocate filed his proposed recommended order on February 9, 1998. The Respondent did not file a proposed recommended order.

FINDINGS OF FACT

1. Respondent, Nancy J. Sands (Sands), served as the Welaka Town Clerk from May 28, 1993, until December 8, 1994.

2. Welaka is a small town covering approximately one and one quarter square miles. The population is 560. While Sands was town clerk, it was not uncommon for local businesses to buy paper from the town if they ran out and needed paper immediately. Nor was it uncommon for employees of the town to make photocopies of documents for Welaka residents free of charge. The town council later voted to start charging residents for photocopies.

3. Sands is friends with Grace Evans, a resident of Welaka, Florida.

4. In September, 1994, Ms. Evans was at the Welaka Town Hall and saw Sands using a vacuum cleaner. Ms. Evans liked the vacuum cleaner and asked Sands where she had gotten it. Sands showed Ms. Evans a catalog from which Sands had ordered the vacuum cleaner for the town. Ms. Evans asked Sands if she could order her one.

5. Sands agreed to place an order for Ms. Evans. There was no discussion concerning sales tax. Nor was there any thought given by either Ms. Evans or Sands concerning the payment of sales tax on the purchase of the vacuum cleaner. Based on the evidence, it is clear that neither Ms. Evans nor Sands intended to purchase the vacuum cleaner using the town's account number in order to avoid the payment of sales tax.

6. On September 27, 1994, Sands ordered a vacuum cleaner and some accessories from the Wholesale Supply Company in Nashville, Tennessee, using the Town of Welaka's account number. The order was placed during Sands' working hours as the town clerk.

7. Sands advised the Wholesale Supply Company that Grace Evans was the customer for whom the vacuum was being purchased because the invoice which the Wholesale Supply Company sent to the Town of Welaka stated that the customer was Grace Evans.

8. The total price of the merchandise Sands ordered for Ms. Evans was $109.70 plus shipping and handling charges of $5.59.

9. When Sands received the invoice, she wrote "Do not pay already mailed in" on the front of the invoice, indicating that the invoice was not to be paid by the town.

10. The items were purchased at full price and Ms. Evans paid for the items.

11. Ms. Evans did not pay any Florida sales tax on her vacuum cleaner purchase.

CONCLUSIONS OF LAW

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

13. The Commission on Ethics (Commission) has alleged that Respondent has violated Section 112.313(6), Florida Statutes. The Commission, through the Advocate, must establish the elements of the alleged violation by clear and convincing evidence. Latham v Commission on Ethics, 694 So. 2d 83 (Fla. 1st DCA 1997).

14. Section 112.313(6), Florida Statutes (1993), provides:

MISUSE OF PUBLIC POSITION. 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.

15. 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.

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

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

2. The Respondent must have:

a. used or attempted to use her official position or any property within her trust or

b. performed her official duties.

3. The Respondent's actions must have been taken to secure a special privilege, benefit, or exemption for herself or others.

4. The Respondent must have acted corruptly, that is, with wrongful intent and for the purpose of benefiting herself or another person from some act or omission which was inconsistent with the proper performance of her public duties.

17. The parties have agreed that as the Welaka Town Clerk Sands was subject to the requirements of Part III, Chapter 112, Florida Statutes, the Code of Ethics for Public Officers and Employees.

18. The evidence did establish that Sands used her position as town clerk to place an order for Ms. Evans for a vacuum cleaner. The evidence does not establish that Sands acted corruptly. There was no intent by Sands to avoid the payment of sales tax. The subject of sales tax did not enter her mind during the transaction.

19. The Advocate has failed to establish by clear and convincing evidence 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 a Final Order be entered finding that Respondent, Nancy Sands, did not violate Section 112.313(6), Florida Statutes, and dismissing the Complaint against her.

DONE AND ENTERED this 18th day of February, 1998, in Tallahassee, Leon County, Florida.

___________________________________

SUSAN B. KIRKLAND

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 18th day of February, 1998.

COPIES FURNISHED:

Bonnie Williams

Executive Director

Commission on Ethics

Post Office Drawer 15709

Tallahassee, Florida 32317-5709

Phil Claypool

General Counsel

Commission on Ethics

Post office Drawer 15709

Tallahassee, Florida 32317-5709

Kerrie J. Stillman

Complaint Coordinator

Commission on Ethics

Post Office Drawer 15709

Tallahassee, Florida 32317-5709

James L. Padgett, Esquire

Padgett and Morris

10 Central Avenue

Crescent City, Florida 32112

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS