STATE OF FLORIDA
DIVISION OF
ADMINISTRATIVE HEARINGS
IN RE: JIMMY WHALEY )
) CASE
NO. 97-0143EC
Respondent. )
________________________________)
RECOMMENDED ORDER
Pursuant to notice,
the Division of Administrative Hearings, by its duly designated Administrative
Law Judge, Carolyn Holifield, held a formal hearing in this case on March 13,
1997, in Panama City, Florida.
APPEARANCES
For Advocate: Eric S. Scott
Assistant Attorney General
Attorney General's
Office
Plaza Level One, The
Capitol
Tallahassee,
Florida 32399-1050
For
Respondent: Gary L. Printy
Law Office of Gary L.
Printy
660 East Jefferson
Street
Tallahassee,
Florida 32301
STATEMENT OF THE
ISSUE
Whether Respondent
violated Sections 112.313(2), and 112.313(6), Florida Statutes, and, if
so, what penalty should be recommended.
PRELIMINARY
STATEMENT
On September 4,
1996, the Florida Commission on Ethics issued an order finding probable cause
to believe that Respondent Jimmy Whaley, as City Commissioner for the City of
Springfield, Florida, violated Section 112.313(2), Florida Statutes, by
soliciting the dismissal of a traffic citation against his son, based upon the
understanding that his future actions as a City Commissioner with respect to
the officer or the police department would be influenced thereby.
Additionally, the
Florida Commission on Ethics found that there was probable cause to believe
Respondent violated Section 112.313(6), Florida Statutes. The case was forwarded to the Division of
Administrative Hearings for assignment to an administrative law judge on or
about January 14, 1997. The final
hearing was scheduled for March 13, 1997.
Before the formal hearing, the parties stipulated to facts which were
admitted and required no proof at hearing.
At the final hearing, the Advocate called three witnesses: Springfield Police Department Officer Chad
Rowswell; Springfield Police Department Chief, John Sword; and Bay County
Sheriff's Deputy, John Sumerall.
Respondent
testified on his own behalf and called two witnesses: Springfield Police
Department Retired Chief, Donahue Zigler; and Cedar Grove Police Department
Chief, John Ferrick. The parties
stipulated to the introduction of two joint exhibits, both of which were
admitted into evidence. The proceeding
was recorded but not transcribed. Both
parties filed proposed recommended orders.
FINDINGS OF FACT
1. At
all times pertinent to this proceeding, Respondent Jimmy Whaley, was a member
of the Springfield City Commission. He
was elected to this office in September 1993, and served in that capacity
continuously until September 1995.
2. In
that public position, the Respondent was subject to the requirements of Part
III, Chapter 112, Florida Statutes, the Code of Ethics for Public
Officers and Employees.
3. On
May 18, 1995, Manuel James Whaley III, the son of Respondent, was issued a
speeding ticket in the City of Springfield by Officer Chad Rowswell for
traveling 33 mph in a 20 mph speed zone.
Officer Rowswell did not recognize the Respondent's son or his son's car
when he gave Respondent's son the speeding ticket.
4. At
the time the speeding ticket was issued, the Respondent's son, Manuel J.
Whaley, III, was on probation for an unrelated criminal matter.
5. Because
his son was on probation, Respondent believed that the speeding ticket issued
could impact his son's probationary status and result in his going to
jail. Based on this belief, Respondent
asked Lieutenant Peoples to intercede on his behalf with Officer Rowswell,
about reducing the Manuel Whaley III's speeding ticket to a warning. Lieutenant Peoples contacted Officer
Rowswell, but Officer Rowswell refused to reduce the ticket.
6. Officer
Rowswell was the only person who could reduce the speeding ticket he had issued
to the Respondent's son. He had thirty
days within which to make his decision.
7. A few
days after Respondent's son was cited for speeding, and after Officer Rowswell
refused to reduce the ticket to a warning, Respondent spoke to Chief Sword
about his son's ticket. As a general
rule, Chief Sword leaves the decision of whether or not to void or reduce a
ticket up to the officer that actually wrote the ticket. During their conversation, Chief Sword told
the Respondent that he would not tell Officer Rowswell to reduce the
Respondent's son's speeding ticket to a warning.
8. When
the Respondent spoke to Chief Sword about the ticket Officer Rowswell gave to
his son, the Respondent made it clear that he was not happy with Officer
Rowswell, in particular, and the Springfield Police Department, in
general. During his meeting with Chief
Sword, the Respondent's tone was intimidating and threatening.
9. Based
on Respondent's choice of words and tone of voice during his conversation with
Chief Sword, the police chief believed that Respondent's official actions or
judgment with regard to the Springfield Police Department would be influenced
and adversely affected by Officer Rowswell's refusal to reduce the ticket to a
warning.
10. On
June 7, 1995, Respondent mistakenly called Deputy John Sumerall aside to
discuss the ticket issued by Officer Rowswell, thinking Sumerall was Officer
Roswell. Initially, during this
meeting, Respondent's tone was threatening and intimidating. Respondent told Officer Sumerall that he had
helped him get his job and that he may need Respondent's help in the
future. During his meeting with Officer
Sumerall, Respondent indicated that his official actions or judgment with
regard to the Springfield Police Department and Officer Rowswell would be
influenced by Officer Rowswell's failure to reduce the ticket to a warning.
11. After
his meeting with Respondent, Officer Sumerall felt that Respondent's treatment
of the Springfield Police Department and Officer Rowswell would be adversely
affected by Officer Rowswell's decision to not drop the speeding ticket to a
warning.
12. Based
on this conversation, Officer Sumerall felt Respondent was threatening Officer
Rowswell's job because he refused to reduce Respondent's son's speeding ticket.
13. After
Respondent discovered he was talking to the wrong officer, his demeanor changed
and he became friendly and apologetic and asked Officer Sumerall to keep the
matter to himself.
14. Deputy
Sumerall communicated the substance of Respondent's remarks to Officer
Rowswell. Although Officer Rowswell
never discussed the matter with Respondent, after hearing about Respondent's
confrontation with Officer Sumerall, Officer Rowswell became concerned about
his job.
15. Respondent stated that he attempted to speak
to Officer Roswell in an effort to find out why he refused to reduce the
speeding ticket to a warning and to explain to the officer that in a small
town, people did each other favors.
Respondent referred to this as a "working relationship".
CONCLUSIONS OF LAW
16. The
Division of Administrative Hearings has jurisdiction over the parties and the
subject matter of this proceeding.
Section 120.57(1), Florida Statutes (1995).
17. Section
112.322, Florida Statutes (1995), 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).
18. 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(2) and, 112.313(6), Florida Statutes (1995). The Commission must establish by clear and
convincing evidence the elements of Respondent's alleged violations. Gary D. Latham v. Florida Commission on
Ethics, No. 96-1224 (Fla. 1st DCA) April 23, 1997.
19. It
has been alleged that Respondent violated Section 112.313(2), Florida
Statutes (1995), by soliciting the dismissal of a traffic citation against
his son, based upon the understanding that his future actions as a City
Commissioner with respect to the police officer and/or the police department
would be influenced thereby.
20. Section
112.313(2), Florida Statues (1995), provides:
No public officer,
employee of an agency, local government attorney, candidate for nomination or
election shall solicit or accept anything of value to the recipient, including
a gift, loan, reward, promise of future employment, favor, or service, based
upon any understanding that the vote, official action, or judgment of the
public officer, employee, local government attorney, or candidate would be
influenced thereby.
21. In
order for it to be concluded that Respondent violated Section 112.313(2), Florida
Statutes, the Advocate must establish the following elements:
1. Respondent
must have been either a public officer, a public employee, local government
attorney, or a candidate for nomination or election.
2. Respondent
must have solicited or accepted something of value to him, including a gift,
loan, reward, promise of future employment, favor, or service.
3. Such
solicitation or acceptance must have been based upon an understanding that the
Respondent's vote, official action, or judgment would be influenced thereby.
22. The
parties have stipulated that the Respondent, as a Springfield City
Commissioner, was subject to the requirements of Part III, Chapter 112, Florida
Statutes.
23. To
establish a violation of Section 112.313(2), Florida Statutes (1993), it
must next be established that Respondent solicited or accepted something of
value to him, such as a gift, loan, reward, favor, or service.
24. In
this case, it was established by clear and convincing evidence that Respondent
solicited a favor, the reduction of his son's speeding ticket to a warning. The reduction of a ticket was important to
Respondent because he was concerned that the ticket might cause his son to be
in violation of his probation and result in his being sent to jail. Although Respondent never actually solicited
Officer Rowswell, his solicitation of Chief Sword and Officer Sumerall satisfy
this element. The fact the Respondent
mistakenly solicited Officer Sumerall instead of Officer Rowswell does not mean
a solicitation did not place.
25. Finally,
to establish a violation of Section 112.313(2), Florida Statutes, it
must be proven that the solicitation engaged in by the public officer was based
upon an understanding that the officer's vote, official action or judgment
would be influenced thereby.
26. The
evidence adduced at hearing established that Respondent's solicitation was
based on an understanding that Respondent's votes, official actions or
judgments with regard to the Springfield Police Department and Officer Roswell
would be influenced by whether Officer Roswell reduced the speeding ticket to a
warning.
27. The Advocate for the Commission has
established by clear and convincing evidence each of the requisite elements
and, thus has proven that Respondent violated Section 112.313(2), Florida
Statutes (1995).
28. It is further alleged that Respondent violated
Section 112.313(6), Florida Statutes (1995), by attempting to have a
traffic citation against his son dismissed.
29. Section
112.313(6), Florida Statutes (1995), provides:
MISUSE OF PUBLIC
POSITION. No public officer or employee
of an agency shall corruptly use or attempt to use his or her official position
or any property or resource which may be within his or her trust, or perform
his official duties, to secure a special privilege, benefit, or exemption for
himself, herself, 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 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, employee of a public agency, or a
local government attorney.
2. The
Respondent must have used or attempted to use his official position or any
other property or resources within his trust or perform his official duties, 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 and the evidence
has established that Respondent, as a Springhill City Commissioner, is subject
to the requirements of Part III, Chapter 112, Florida Statutes. Therefore, this element is proven.
33. Based on the allegations in this case, it must
next be established that Respondent used his official position to secure a
special benefit for himself or others.
At hearing, it was established by clear and convincing evidence that
Respondent used his official position by indicating in his meetings with Chief
Sword and Officer Sumerall that his official actions or judgment with regard to
the Springfield Police Department and Officer Rowswell would be influenced by
Officer Roswell's refusal to reduce the ticket.
34. These
actions were taken by Respondent to secure a special privilege, the reduction
of his son's speeding ticket. The
Advocate has proven this element by clear and convincing evidence.
35. Finally,
to establish a violation of Section 112.313(6), Florida Statutes, it
must be established that Respondent acted with wrongful intent. That is, Respondent must have acted with
specific intent to misuse his public position.
In using his position to attempt to have his son's speeding ticket
reduced to a warning, Respondent acted and spoke in a manner which evidenced
his intent to misuse his official position.
Respondent's acts of threatening to use his official position to
adversely impact the Springhill Police Department and/or Officer Rowswell's
job, were inconsistent with the proper performance of Respondent's public
duties.
36. The Advocate has established by clear and
convincing evidence each of the requisite elements to prove 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 finding that Respondent, Jimmy Whaley, violated
Sections 112.313(2) and 112.313(6), Florida Statutes (1995), imposing a
civil penalty of $5,000, and issuing a public censure and reprimand.
DONE and ORDERED
this 6th day of May, 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
(904) 488-9675 SUNCOM 278-9675
Fax Filing (904) 921-6847
Filed with the Clerk of
the
Division of Administrative
Hearings
this 6th day of May, 1997.
COPIES
FURNISHED:
Eric Scott, Esquire
Department of Legal
Affairs
Plaza Level One,
The Capitol
Tallahassee,
Florida 32399-1050
Kerrie Stillman
Complaint
Coordinator
Florida Commission
on Ethics
Post Office Box
15709
Tallahassee,
Florida 32317-5709
Gary L. Printy,
Esquire
660 East Jefferson
Street
Tallahassee,
Florida 32301
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
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.