STATE OF FLORIDA
DIVISION OF
ADMINISTRATIVE HEARINGS
IN RE: JULIANNE HOLT ) CASE NO. 96-2780EC
_______________________)
RECOMMENDED ORDER
Pursuant to notice, the
Division of Administrative Hearings, by its duly designated Administrative Law
Judge, Susan B. Kirkland, held a formal hearing in this case on February 27,
1997, in Tampa, Florida.
APPEARANCES
For Advocate:
Virlindia Doss, Esquire
Office of the Attorney
General
The Capitol, PL-01
Tallahassee,
Florida 32399-1050
For
Respondent: Scott Tozian, Esquire
109 North Brush, Suite
150
Tampa, Florida 33602
Arnold D. Levine,
Esquire
Levine, Hirsch, Segall
and Northcutt
100 South Ashley Drive,
Suite 1600
Post Office Box 3429
Tampa, Florida 33601-3429
STATEMENT OF THE ISSUES
Whether Respondent
violated Section 112.313(6), Florida Statutes, and if so, what penalty should
be imposed.
PRELIMINARY STATEMENT
On June 4, 1996, the
State of Florida Commission on Ethics filed an Order Finding Probable Cause to
believe that Respondent, Julianne Holt (Holt), as Public Defender of the
Thirteenth Judicial Circuit, violated Section 112.313(6), Florida Statutes, by
asking or allowing one of her staff attorneys to represent Sylvia Didier, a
former client of her private law practice, in a private action and by making
personal use of her County issued cellular telephone. The case was forwarded to the Division of Administrative Hearings
on June 12, 1996, for a formal administrative hearing.
The final hearing was
scheduled to commence on September 30, 1996.
On September 6, 1996, Respondent filed a Motion for Continuance. The motion was granted and the case was rescheduled
for hearing commencing on December 11, 1996.
On November 18, 1996, the Advocate for the Commission on Ethics filed a
Motion for Continuance, requesting that the case be placed in abeyance until
December 31, 1996, pending an investigation by the State Attorney of the Tenth
Judicial Circuit in a related matter. The
case was placed in abeyance. By Order
dated January 3, 1997, the case was rescheduled for final hearing on February
27, 1997.
At the final hearing, the
Advocate for the Commission on Ethics called the following witnesses: Mark Rodriquez, Allen Sandler, and Larry
Hill. Advocate's Exhibits 1-10, 13, and
14 were admitted in evidence. At the
final hearing Respondent called the following witnesses: Sylvia Didier, Tom Hanlon, John Weiss, and
Miles Irmis. Respondent's Exhibits 1-4
were admitted in evidence.
The parties agreed to
file proposed recommended orders thirty days after the date the transcript was
filed with the Division of Administrative Hearings. The transcript was filed on March 19, 1997. The parties timely filed their proposed
recommended orders.
FINDINGS OF FACTS
1. Respondent,
Julianne Holt (Holt), took office as Public Defender of the Thirteenth Judicial
Circuit in January, 1993.
2. Prior to
taking office as Public Defender, Holt had a private law practice. In 1992, she represented Sylvia Didier in a
dissolution of marriage action. The
final hearing in the dissolution was held in November, 1992, at which time the
judge orally made his findings. Holt
was to submit a final judgment for the judge's signature. The final judgment was entered on February
8, 1993.
3. At the
conclusion of the final hearing Holt informed Mrs. Didier that more than likely
Mr. Didier would appeal the final judgment and that Holt could not represent
Mrs. Didier in the appeal. Holt gave
Ms. Didier the names of three attorneys who could take over her case: Kay McGuken, Joe Registrado, and Mark
Rodriguez.
4. Mr. Didier
filed a motion for a new trial on February 16, 1993. Holt arranged for Mrs. Didier to be represented at the hearing
for a new trial by attorney, Kay McGuken, at no charge. Holt accompanied Mrs. Didier and Ms. McGuken
to the hearing in case the judge should have any questions for Holt. Holt did not file a notice with the court
that she was withdrawing from representing Mrs. Didier.
5. Holt hired Mark
Rodriquez as a line attorney in March, 1993.
Shortly thereafter, he was promoted to head of appeals processing.
6. On April
14, 1993, counsel for Mr. Didier filed a Notice of Appeal.
7. Mrs. Didier
contacted Mr. Rodriquez about representing her. They agreed that he would represent her on the appeal. They settled on a fee of $1,000 for the work
at the District Court of Appeals level and an additional $1,000 should there be
proceedings in the Florida Supreme Court.
8. Mr.
Rodriquez discussed the matter with Holt before accepting the representation of
Mrs. Didier. Holt did not pressure Mr.
Rodriquez to represent Mrs. Didier. Holt
advised Mr. Rodriquez that he could not use any of the office resources on the
Didier case and that he must not make or receive telephone calls at the Public
Defender's office relating to the case.
9. The Public
Defender's Office had a general policy that attorney's working for the Public
Defender's Office were expected to do so on a full time basis. It was also the policy of the Public
Defender's Officer to allow exceptions to the general policy. Holt had allowed other attorneys in the
Public Defender's Office to perform some limited civil work.
10. The Answer
brief in the Didier appeal was due on July 12, 1993. Mr. Rodriquez did not want to commence writing the answer brief
until he had received payment from Mrs. Didier. Holt advised Mrs. Didier that she needed to pay Mr. Rodriquez
because the time was running for filing the answer brief.
11. Mrs.
Didier borrowed money from her parents to pay for the appeal. She wrote a check to Mark Rodriquez, P.A.
for $2,000. She gave the check to Holt. The amount owed to Mr. Rodriquez at the time
was $1,000, which was the agreed amount for the answer brief. Neither Mr. Rodriquez nor Holt had a trust
account into which the additional $1,000 could be placed.
12. Holt
advised Mrs. Didier that the fee was only a $1,000 and that neither she nor Mr.
Rodriquez could hold the additional $1,000 because they did not have trust
accounts. Mrs. Didier agreed to allow
Holt to endorse Mr. Rodriquez' name to the check, to deposit the check in
Holt's account, and to return a $1,000 to Mrs. Didier. Holt gave Didier $1,000 in cash from money
which she had at her home.
13. On July
12, 1993, Holt turned the Didier file over to Mr. Rodriquez and paid him $1,000
in cash, also from money that she kept at home.
14. On July
19, 1993, Mr. Rodriquez filed a Motion requesting additional time within which
to file an answer brief on behalf of Mrs. Didier, citing a calendaring error
and calendar conflict as grounds for his request.
15. Mr.
Rodriquez filed the answer brief in the Didier appeal on July 30, 1993.
16. In 1995
Mr. Rodriquez filed an amended tax return for 1993, reflecting that he received
the $1,000 for the Didier appeal in 1993.
17. The Public
Defender's Office purchased cellular telephone service pursuant to a contract
negotiated by the Hillsborough County Board of Commissioners. Other than its policy for the members of the
Board of County Commissioners, Hillsborough County had no official policy
regarding the use of cellular telephones by other county agencies.
18. The
official policy for the Board of County Commissioners was that the County paid
for the business use of the cellular telephones and the Commissioners
reimbursed the County for any personal calls they may have made on the cellular
telephones.
19. In the
Office of the Public Defender, as with the County Board members, reimbursement
for personal calls made with officially-issued cellular telephones was done on
the honor system. There was no written,
official policy within the Public Defender's Office for the reimbursement of
cellular telephone use.
20. Holt was
issued a cellular telephone by the Public Defender's Office.
21. In the
years 1993 and 1994, Holt's cellular telephone use was approximately
$3,931. During 1993 and 1994, Holt
reimbursed the County approximately $498 for calls she determined to be personal.
22. Between
February 1993 and December 1994, Holt made more than 100 calls to Stephanie
Barksdale-Wilson. Ms. Barksdale-Wilson
is the daughter of Fred Barksdale, a good friend and former client of
Holt. Ms. Barksdale-Wilson and Holt are
very close; Holt helped raise Ms. Barksdale-Wilson.
23. The calls
to Ms. Barksdale-Wilson mainly dealt with Ms. Barksdale-Wilson's concern for
Holt's safety because of the Public Defender's Office's representation of a
defendant in a controversial case and with issues that had been raised by a
reporter's articles in a local newspaper.
The telephone calls were related to the business of the Public
Defender's Office.
24. Holt also
made at least five calls to her former client, Claude Tanner, while Mr. Tanner
was serving a prison sentence at Eglin Air Force Base.
25. The calls
to Mr. Tanner related to Holt's representation of Mr. Tanner when she was in
private practice. Holt was not
representing Mr. Tanner while she was a public defender. The calls had nothing to do with the
business of the public defender's office.
No public purpose was served by these calls.
26. Holt
reimbursed the county for the calls to Ms. Barksdale-Wilson and Mr. Tanner
after the commencement of these proceedings.
CONCLUSIONS OF LAW
27. The
Division of Administrative Hearings has jurisdiction over the parties to and
the subject matter of this proceeding.
Section 120.57(1), Florida Statutes.
28. In a
recent First District Court of Appeal decision, Latham v. Florida Commission
on Ethics, No. 96-1224 (Fla. 1st DCA April 23, 1997), the court opined that the standard
of proof in a proceeding in which the Ethics Commission seeks penalties under
Section 112.317(1)(a), Florida Statutes, is clear and convincing evidence.
29. The Commission
on Ethics found that there was probable cause to find that Holt violated
Section 112.313(6), Florida Statutes, which 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.
30. The term
"corruptly" is defined by Section 112.312(9), Florida Statutes, 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 the proper performance of his
public duties.
31. In order
to establish a violation of Section 112.313(6), Florida Statutes, the following
elements must be proved:
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 or
resources 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.
32. As a
public defender Holt is considered to be a public official and the parties do
not dispute this issue.
33. The
Advocate has not established by either a preponderance of the evidence or by
clear and convincing evidence that Holt violated Section 112.313(6), Florida
Statutes, in connection with Mr. Rodriquez' representation of Mrs. Didier. The evidence does not establish that Holt used
her position or resources within her trust or performed her duties in a manner
to corruptly secure a special privilege, benefit, or exemption for herself or
others.
34. The
Advocate has not established by either a preponderance of the evidence or by clear
and convincing evidence that Holt violated Section 112.313(6), Florida
Statutes, relating to the cellular telephone calls made to Ms. Barksdale-Wilson
during 1993 and 1994. The telephone
calls were related at least indirectly to the business of the Public Defender's
Office.
35. The
Advocate has established by both a preponderance of the evidence and by clear
and convincing evidence that Holt violated Section 112.313(6), Florida
Statutes, by making the cellular telephone calls to her former client, Claude
Tanner, and not reimbursing the county in a timely manner. Holt was using a cellular telephone issued
to her by the Public Defender's Office for business calls with the
understanding that she would reimburse the county for any personal calls that
she made on the cellular telephone. The
calls to Claude Tanner were not business calls relating to the Public
Defender's Office; they were calls relating to Holt's personal business. Holt argues that she was under an ethical
obligation pursuant to the Rules of Professional Conduct to return Mr. Tanner's
telephone calls; therefore it made the telephone calls business instead of
personal. Holt is confusing what is a
personal telephone call and what is a business telephone call. In the context of the use of a county owned
cellular telephone, the business purpose must relate to county business, in
this case, the business of the Public Defender's Office. In no way did the telephone calls relate to
the business of the Public Defender's Office, and Holt should not expect the
county to foot the bill for her personal business. Holt argues that she had no corrupt intent when she used the
cellular telephone to make the calls to Mr. Tanner, however, she knew that the
telephone was to be used for business calls and that she was to reimburse the
county for personal calls. She made
personal calls to Mr. Tanner on the cellular telephone and did not reimburse
the county until the instant ethic proceeding was commenced. Intent is reasonably inferred.
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 Respondent Julianne Holt did not violate
Section 112.313(6), Florida Statutes, relating to the representation of Mrs.
Didier in her dissolution appeal and relating to Ms. Holt's use of a county-issued
cellular telephone to make calls to Ms. Barksdale-Wilson and finding that Ms.
Holt did violate Section 112.313(6), Florida Statutes, in making the cellular
telephone calls to Claude Tanner without timely reimbursing the county for the
calls, and recommending a public censure and reprimand for the violation.
DONE AND ENTERED in Tallahassee, Leon
County, Florida, this 21st day of May, 1997.
___________________________________
SUSAN B. KIRKLAND
Administrative Law
Judge
Division of
Administrative Hearings
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
on this 21st day of May, 1997.
COPIES FURNISHED:
Virlindia Doss, Esquire
Advocate For the Florida
Commission on Ethics
Department of Legal
Affairs
PL-01, The Capitol
Tallahassee, Florida 32399-1050
Arnold D. Levine, Esquire
Levine, Hirsch, Segall
and Northcutt
100 South Ashley Drive,
Suite 1600
Post Office Box 3429
Tampa, Florida 33601-3429
Scott K. Tozian
109 North Brush Street,
#150
Tampa, Florida 33602
Kerrie J. Stillman
Complaint Coordinator
Commission on Ethics
Post Office Box 15709
Tallahassee, Florida 32317-5709
Bonnie Williams,
Executive Director
Ethics Commission
2822 Remington Green
Circle, Suite 101
Post Office Drawer 15709
Tallahassee, Florida 32317-5709
Phil Claypool, General
Counsel
Ethics Commission
2822 Remington Green
Circle, Suite 101
Post Office Drawer 15709
Tallahassee, Florida 32317-5709
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.