STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

IN RE: WELLINGTON ROLLE, )

)

Respondent. ) Case Nos. 98-0370EC

_________________________________) 98-0371EC

)

IN RE: JOHN RILEY, ) Case Nos. 98-0372EC

) 98-0373EC

Respondent. )

_________________________________)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing in this case was held on August 3 and 4, 1998, in Miami, 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 Respondents: James H. Greason, Esquire

3191 Coral Way, Suite 638

Miami, Florida 33145

STATEMENT OF THE ISSUES

The issues for determination are: (1) whether Respondent Wellington Rolle, as the former Director of Personnel for the City of Opa-Locka (City of Opa-Locka or City), violated Section 112.313(6), Florida Statutes, by using his position to seek from the City payment to which he was not entitled; and (2) whether Respondent John Riley, as the former Assistant City Manager of the City of Opa-Locka, violated Section 112.313(6), Florida Statutes, by using his position to seek from the City payment to which he was not entitled; and (3) if so, what penalty is appropriate.

PRELIMINARY STATEMENT

On December 10, 1997, the Florida Commission on Ethics entered Orders Finding Probable Cause to believe that the Respondents, John Riley and Wellington Rolle, violated Section 112.313(6), Florida Statutes, by using their positions to seek payments to which they were not entitled. Respondents challenged the allegations and requested a formal hearing. On January 14, 1998, the cases were separately forwarded to the Division of Administrative Hearings for assignment of an administrative law judge to conduct the proceeding. The cases were consolidated prior to the final hearing.

At hearing, the Advocate called five witnesses: Ana Otero, Sharon Jones, Newall Daughtrey (called as an adverse witness), Robert Ingram, and Dennis Whitt. The Advocate also offered twenty exhibits, of which seventeen were admitted, one was rejected, and two were proffered. The Respondents testified on their own behalf and called three witnesses: Steven Barrett, Winston Mottley, and Timothy Holmes. The Respondents offered and had three exhibits admitted into evidence.

The proceeding was recorded, but not transcribed. At the request of Respondents and without objection, the date for filing Proposed Recommended Orders was extended to August 24, 1998. Both parties timely filed proposed recommended orders.

FINDINGS OF FACT

1. On November 8, 1994, two new members, George Lipkins (since deceased) and Timothy Holmes, were elected to the City of Opa-Locka's five member City Commission. Following the regular meeting and the swearing in of the new commissioners on November 9, 1994, the issue of a special meeting was raised. The proposed special meeting was to take place on September 10, 1994, and the purpose of the meeting was to consider the removal of then City Manager Dennis Whitt.

2. On November 10, 1994, Mr. Whitt, then Mayor Robert Ingram, and Commissioner Helen Miller (now deceased) reacted to the proposed special meeting by filing a Complaint for Emergency Injunctive Relief (Complaint) against Commissioners Holmes, Steven Barrett, and Lipkins. The Complaint sought to enjoin the special meeting scheduled for September 10, 1994.

3. A ruling on the Complaint was entered on November 10, 1994, at 4:55 p.m. In the Order, Judge Margarita Esquiroz enjoined Commissioners Barrett, Lipkins, and Holmes, as well as any officers or employees of the City of Opa-Locka, from "holding any hearing on November 10, 1994, at 9:00 p.m., until further order of this court."

4. Even though the injunction order had been entered, a special meeting of the Opa-Locka City Commission was convened on the evening of November 10, 1994. At the special meeting, the City Commission suspended City Manager Whitt and appointed Newall Daughtrey as Acting City Manager.

5. At the special meeting, the City Commissioners also appointed Mr. Daughtrey to conduct an investigation into the finances of the City of Opa-Locka. Pursuant to the Commission's directive, Mr. Daughtrey was to investigate the fiscal affairs of the City, but could not target the mayor or the commissioners. Mr. Daughtrey appointed Respondents to assist him in conducting this investigation.

6. During or immediately after the special meeting, Mr. Whitt and Mayor Ingram sought to have the injunction order signed by Judge Esquiroz enforced. As a result of that effort, on November 10, 1994, at 10:30 p.m., an order was entered by Judge J.C. Henderson, Circuit Court Judge, in and for Dade County, Florida, directing the Metro Dade Police Department to enforce the injunction order. Moreover, the order entered by Judge Henderson directed the Metro Dade Police Department "to take all reasonable steps to secure the audio tapes of the meeting that took place in violation of the [injunction] order."

7. Notwithstanding the injunction order, Mr. Daughtrey took the position that the City Commission, by its action at a special meeting held on November 10, 1994, had appointed him Acting City Manager. On the other hand, Mr. Whitt took the position that there had been no lawful action by the City Commission, and refused to physically yield his office to Mr. Daughtrey. During this "stand-off," Mr. Daughtrey did not move into the office designated for the city manager, but moved into another office in City Hall.

8. Acting in his role as Acting City Manager, Mr. Daughtrey informed the commissioners that he was appointing Respondents Rolle and Riley as his assistants. This information was communicated by a memorandum dated November 11, 1994, from Mr. Daughtrey to the City Commissioners. At the end of the week of November 10, 1994, Respondent Riley received a copy of this memorandum when it was hand-delivered to Riley's house.

9. City Manager Whitt, joined by Mayor Ingram and City Commissioner Miller, challenged Mr. Whitt's suspension. As a result thereof, on November 18, 1994, Judge Esquiroz held a hearing on the injunction, and ruled that all actions taken at the November 10, 1994, special meeting were in violation of the law and were without effect. As a result of this ruling, the City Commission scheduled a meeting for December 9, 1994, for the purpose of considering the continued employment of Mr. Whitt.

10. Some time after he received the aforementioned November 11, 1994, memorandum, and before December 10, 1994, Respondent Riley was directed by Mr. Daughtrey to go to the law offices of Wintropp and Greason to assist in preparing the notice for the December 9, 1994, hearing. Respondent Riley complied with this directive and, in fact, worked to ensure that the notice and activities associated therewith complied with the provisions of the Charter of City of Opa-Locka and Chapter 119, Florida Statutes. Respondent Riley also performed other tasks during this time period at the request of at least one of the City Commissioners. Although Respondent Riley performed these assignments before the December 9, 1994, meeting, he did not routinely work in City Hall due to Mr. Whitt's refusing to allow him to work there.

11. Consistent with the November 11, 1994, memorandum, Mr. Daughtrey offered Respondent Rolle a job as the City Manager's assistant, working as the Director of Personnel. Respondent Rolle accepted the offer, and thereafter began performing services for the City in November 1994. This was Respondent Rolle's first experience working for a governmental entity.

12. During the period between November 1994 and December 1994, Respondents went to City Hall on numerous occasions to retrieve information and materials necessary to perform their various job-related activities. Respondents were observed by Mr. Whitt, commissioners, and city staff members in City Hall performing these activities. According to Mr. Whitt, the Respondents were "busy with activities relating to [Whitt's] removal." Also, during the period, Respondents met weekly with Mr. Daughtrey and some of the City Commissioners.

13. At the December 9, 1994, City Commission meeting, the Commissioners removed Mr. Whitt as City Manager and appointed Newall Daughtrey as City Manger. However, during the period between November 10, 1994, and December 9, 1994, Mr. Whitt remained on the City of Opa-Locka payroll as the City Manager and continued to physically occupy the City Manager's Office. Moreover, Mr. Whitt and his staff managed the day-to-day operations of the City of Opa-Locka.

14. At all times pertinent hereto, personnel actions in the City of Opa-Locka, including new hires, terminations, and salary changes, were accomplished through completion of a Report of Personnel Action (RPA). The procedure for processing RPA forms required the signatures of four persons: (1) the affected employee; (2) the applicable Department Director; (3) the Director of Personnel; and (4) the Personnel Department staff member processing the form.

15. After the Personnel Department processed RPA forms, it retained one copy of the RPA form and forwarded the other copy to the City's Finance Department. In the case of new hires, the Finance Department then prepared warrants in amounts that corresponded with the amount designated on the RPA forms. The Finance Department also prepared a check register that listed the amount and payee of each check. This check register was provided to the City Manager along with the unsigned warrants. After reviewing of the check register, the City Manager was required to personally sign each warrant prior to issuance thereof.

16. On or about December 13, 1994, upon the new administration, including Respondents, moving into their offices in City Hall, RPA forms were processed for both Respondents. Because Respondents were appointed as the City Manager's assistants, City Manager Daughtrey, was considered their Department Director. Hence, on Respondents' RPA forms, Mr. Daughtrey should have signed on the line designated "Department Director."

17. On or about December 13, 1994, and prior to Respondents' RPA forms being processed, Respondent Rolle brought his RPA form to the City of Opa-Locka Personnel Office and gave it to Sharon Jones, a personnel specialist. Rather than process the form, Ms. Jones gave the form to her supervisor, Ana Otero, Acting Personnel Director. Ms. Jones was reluctant to process the RPA because the City Manager's signature was not on the form.

18. At some point while Respondent Rolle's RPA form was being processed, Ms. Otero told Respondent Rolle that she did not believe that he was entitled to retroactive pay. Respondent Rolle then took the form from Ms. Otero and left the Personnel Office.

19. On or about December 13, 1994, Respondent Riley took his and/or Respondent Rolle's RPA form to Mr. Daughtrey to sign. However, when Respondent Riley presented the RPA forms to him, Mr. Daughtrey was very busy dealing with other pressing matters involving the City of Opa-Locka and did not sign Respondents' RPA forms. The reason Daughtrey did not sign the forms is that he was concerned about the salary amount shown on the forms.

20. Thereafter, Respondent Riley, in his role of Assistant City Manager, signed his own name on the line designated for the Department Director on both his and Respondent Rolle's RPA forms. Moreover, on both RPA forms, Respondent Rolle, as the Director of Personnel, signed his own name on the lines designated for the signature of the Director of Personnel and the personnel staff member who processed the form. Both Respondents signed their names as the affected employee on their respective RPA forms.

21. There is no indication that the City of Opa-Locka had a policy that precluded Respondent Rolle as Personnel Director, from signing either his or Respondent's RPA forms in the places designated for the signature of the Personnel Director and staff of the Personnel Office involved in processing the forms.

22. On December 13, 1994, RPAs were processed for the Respondents, appointing them as the City Manager's Assistants, effective November 10, 1994, and providing for payment of $50,000 per year effective November 10, 1994. According to the RPA forms, the retroactive payment due each Respondent was $4,231.04. On the Respondent Rolle's RPA form, the amount of retroactive payment typed on the form was $4,227.52; however, this amount was lined through and the amount hand-written immediately below it was $4,231.04. Next to the amount that had been lined through were the hand-written initials "alo." These appear to be the initials of Ana Otero. However, Ms. Oetero was unsure if she had, in fact, completed any of the information required on the RPA forms.

23. It is unknown when or how Respondents' rate of pay as assistants to the City Manger was determined. However, it was always anticipated that Respondents would be compensated for their work as the City Manager's Assistants, even though Mr. Daughtrey never specifically talked about salary. Notwithstanding the fact that Mr. Daughtrey did not sign Respondents' RPA forms, he acknowledged that Respondents were entitled to compensation for the period between November 1994 and December 1994, but was unsure as to how much they should be compensated.

24. On December 14, 1994, after Respondents' RPA forms were processed, the City of Opa-Locka issued warrants for retroactive pay in the amount of $4,231.04 to the Respondents. City Manager Daughtrey personally signed the payroll checks which were thereafter issued to Respondents in the normal course of business. These warrants were eventually cashed by Respondents.

25. Once the City Manager signed the checks for retroactive payment to Respondents, the subject checks were legally authorized.

26. Mr. Daughtrey also received a payroll check from the City of Opa-Locka for the period November 10, 1994, through December 10, 1994.

27. On June 10, 1995, the Opa-Locka City Commission removed Newall Daughtrey as City Manager. This action was taken after Mr. Daughtrey questioned the City Commissioners' entitlement to deferred compensation disbursed to them by their former City Manager. Mr. Daughtrey raised this issue with the City Commission based on his belief that the amount of that disbursement was in violation of the City Charter.

28. On June 28, 1995, the Opa-Lock City Commission directed the new City Manager to refer the issue of the propriety of Respondents' and Daughtrey's receipt of the subject paychecks to the State Attorney for the Eleventh Judicial Circuit of Florida. After investigating the matter, the State Attorney found no probable cause to believe that any theft had been committed and referred the case to the Ethics Commission.

29. As a result of Mr. Daughtrey's receiving the paycheck for the period November 1994 to December 1994, he was the subject of a complaint to the Ethics Commission by the same complainants at the same time as the Respondents. However, the Commission on Ethics found no probable cause to believe Daughtrey had committed an ethics violation in accepting his paycheck.

30. In 1996, after Respondent Riley was an announced candidate for Mayor of the City of Opa-Locka, the City Commission, including Mayor Ingram, directed the City Attorney to sue Mr. Daughtrey and Respondents in Circuit Court, alleging civil theft of the disputed paychecks and violation of Section 112.313(6), Florida Statutes. That suit, Case No. 96-18670 CA-30, City of Opa-Locka vs. Newall Daughtrey, John Riley, and Wellington Rolle, remains open, pending jury trial.

31. At no time prior to filing that suit did the City of Opa-Locka or any of its officers or officials demand return of the disputed payments from either Respondents or Newall Daughtrey.

CONCLUSIONS OF LAW

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

33. 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).

34. 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 vs. J.W.C. Co., Inc., 396 So. 2d 778 (Fla. 1st DCA 1981); Balino vs. 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 Respondents violated Sections 112.313(6), Florida Statutes. Therefore, the Commission must establish by clear and convincing evidence the elements of Respondents' alleged violations. Latham vs. Florida Commission on Ethics, 694 So. 2d 83 (Fla. 1st DCA 1997) citing Department of Banking and Finance vs. Osborne Stern, 670 So. 2d 932 (Fla. 1996) and Ferris vs. Turlington, 510 So. 2d 292 (Fla. 1987).

35. Clear and convincing evidence requires that the evidence must be found to be credible, facts to which witnesses testify must be distinctly remembered, testimony must be precise and explicit, and witnesses must be lacking in confusion as to facts in issue; evidence must be lacking in confusion as to facts in issue; evidence must be of such weight that it produces in the mind of the trier of fact a firm belief or conviction without hesitancy, as to the truth of the allegations sought to be established. Slomowitz vs. Walker 429 So. 2d (Fla. 4th DCA 1983).

36. It has been alleged that Respondents violated Section 112.313(6), Florida Statutes, by using their positions to seek payment from the City of Opa-Locka to which they were not entitled. 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 or her official position or any property or resource which may be within his or her trust, or perform his or her official duties, to secure a special privilege, benefit, or exemption for himself, herself, or others. This section shall not be construed to conflict with section 104.31.

37. 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 proper performance of his or her public duties.

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

1. The Respondents must have been public officers or employees of an agency.

2. The Respondents must have used or attempted to use their official positions or any other property or resources within their trust or perform his official duties to secure a special privilege, benefit or exemption for themselves.

3. The Respondents must have acted corruptly, that is, with wrongful intent and for the purpose of benefiting themselves or another person from some acts or omissions which are inconsistent with the proper performance of public duties.

39. The Respondents have acknowledged that they were public officers and, as such, subject to the requirements of Part III, Chapter 112, Florida Statutes, the Code of Ethics for Public Officers and Employees (Code of Ethics). Therefore, this element has been proven.

40. Based on the allegations in this case, to establish a violation of Section 112.313(6), Florida Statutes, it must next be shown that Respondents used their official positions to secure a special privilege, benefit, or exemption for themselves. This element has been proven by the Advocate.

41. The undisputed evidence established that Respondent Rolle, as was Director of Personnel for the City of Opa-Locka, signed his and Respondent Riley's RPA forms. On both forms, Respondent Rolle signed in the places designated for the signature of the Personnel Director and the personnel officer processing the RPA. Clearly, Respondent Rolle's signature on the forms, in part, resulted in the retroactive payments being made to him and Respondent Riley.

42. It was also clearly established that Respondent Riley used his official position as Assistant City Manager to sign the RPA forms, thereby contributing to both Respondents' receiving retroactive salary payments.

43. These actions were taken by Respondents in their official positions to secure for themselves special benefits, retroactive payments. Without their signatures on the RPA forms since other authorized officials had not signed, Respondents may not have received the retroactive payments.

44. Notwithstanding the fact that Respondents used their official positions to secure for themselves a special benefit, this in and of itself does not per se violate the Code of Ethics. To prove a violation of Section 112.313(6), Florida Statutes, it must be established that the public official acted with "wrongful intent." Thus, it must be shown that Respondents acted with "specific intent" to misuse their public position.

45. In Blackburn vs. Commission on Ethics, 589 So. 2d 431, 434 (Fla. 1st DCA 1991), the court stated that:

An essential element of the charged offense under Section 112.313(6) is the statutory requirement that appellant acted with wrongful intent, that is, that she acted with reasonable notice that her conduct was inconsistent with the proper performance of her public duties and would be in violation of the law or the code of ethics in part III of chapter 112.

46. Based on the foregoing, the statutory definition not only requires that the conduct complained of be done with a wrongful intent, it also requires that the act or omission be inconsistent with the proper performance of public duties. Kinzer vs. State Commission on Ethics, 654 So. 2d 1007, 1009 (Fla. 3rd DCA 1995). Moreover, wrongful intent implies action "with reasonable notice that the conduct complained of was inconsistent with the proper performance of public duties and would be a violation of the law or the code of ethics in part III of chapter 112." Blackburn vs. State Commission on Ethics, 589 So. 2d 431 434 (Fla. 1st DCA 1991).

47. In the instant case, it has not been established by clear and convincing evidence that Respondents acted corruptly. Respondents undertook their duties as Assistants to the Acting City Manager upon the latter's appointment by the Opa-Locka City Commission on November 10, 1994. Both performed services for the benefit of the City of Opa-Locka, albeit during a period of turmoil and uncertainty in City Hall. These appointments were never rescinded by City Manager Whitt while he continued in office. Both Respondents had the reasonable expectation that they would be paid for their services. After City Manager Whitt's removal on December 10, 1997, and Newall Daughtrey's official installation as City Manager, Respondents continued their duties.

48. Although the City Commission's original appointment of Daughtrey was thereafter voided by the Circuit Court due to its failure to afford proper notice of its meeting, the Commission's subsequent removal of Mr. Whitt and appointment of Daughtrey effectively ratified their prior decision. Tolar vs. School Board of Liberty County, 398 So. 2d 427 (Fla. 3rd DCA 1981); Monroe County vs. Pigeon Key Historical Park, Inc., 647 So. 2d 857 (Fla. 3rd DCA 1995). The City Commission at no time signaled Respondents that they were not to be compensated during that period. To the contrary, Commissioners Holmes and Barrett communicated their feeling that Respondents Rolle and Riley, as well as Daughtrey, properly received compensation for that period.

49. Notwithstanding the fact that Mr. Daughtrey did not sign Respondents' RPA forms, he acknowledged that they were entitled to retroactive compensation. Although Mr. Daughtrey did not sign the RPA forms, his subsequent actions support this position. After Mr. Daughtrey was provided with a copy of the check register which listed the subject retroactive payments and the accompanying City checks, he personally signed the retroactive salary checks of Respondents. Therefore, there was no notice to Respondents that their acceptance of paychecks personally signed by their boss was improper and would violate the Code of Ethics.

50. With regard to the allegations that Respondents signed the RPA forms, there is no indication that the mere act of signing these forms evidences wrongful intent. Respondent Rolle apparently signed the RPA forms in his position as Personnel Director in the two places designated for the signatures of the Personnel Director and the personnel staff member who processed the form. Respondent Riley apparently signed the forms in his position as Assistant City Manager. While Respondents may have signed their own forms in their official capacities, there is no indication that such act shows wrongful intent. Rather, the fact that Respondents signed their own names on the forms may, in fact, negate such intent. Moreover, there is no evidence that Respondents attempted to thwart the established process for processing and issuing payroll checks. Finally, Respondents did nothing to conceal their involvement in the processing of their RPA forms.

51. In view of the foregoing, it has not been established by clear and convincing evidence that Respondents had the requisite wrongful intent necessary to establish a violation of Section 112.313(6), Florida Statutes. Neither does the evidence demonstrate that Respondents obtained some financial benefit inconsistent with the proper performance of their public duties.

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 Respondents, John Riley and Wellington Rolle, did not violate Section 112.313(6), Florida Statutes.

DONE AND ENTERED this _____ day of October, 1998, 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 _____ day of October, 1998.

COPIES FURNISHED:

Virlindia Doss, Assistant Attorney General

Office of the Attorney General

The Capitol, Plaza Level-01

Tallahassee, Florida 32399-1050

James H. Greason, Esquire

3191 Coral Way

Miami, Florida 33145

Kerrie Stillman, Complaint Coordinator

Commission on Ethics

2822 Remington Green Circle, Suite 1

Post Office Box 15709

Tallahassee, Florida 32317-5709

Phil Claypool, General Counsel

Commission on Ethics

2822 Remington Green Circle

Post Office Drawer 15709

Tallahassee, Florida 32317-5709

Bonnie Williams, Executive Director

Commission on Ethics

2822 Remington Green Circle, Suite 101

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.