STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

IN RE: ANTHONY GRANT, )

)

Respondent. ) Case No. 98-1555EC

)

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RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held on September 11, 1998, by videoconference between Orlando and Tallahassee, Florida, before Carolyn S. Holifield, Administrative Law Judge, Division of Administrative Hearings.

APPEARANCES

Advocate: Eric S. Scott

Assistant Attorney General

Office of the Attorney General

The Capitol, Plaza Level 01

Tallahassee, Florida 32399-1050

For Respondent: Gary R. Dorst, Esquire

Post Office Box 947509

Maitland, Florida 32794-7509

STATEMENT OF THE ISSUES

Whether the Respondent, as Mayor of the Town of Eatonville (Town), violated Section 112.313(6), Florida Statutes, (1) by using the Town's postage machine to backdate envelopes containing voter registration forms in an attempt to register voters after the official deadline for registration had expired; (2) by preparing or having another person prepare a fraudulent affidavit concerning the postage machine matter and directing a Town employee to forge the signature of another Town employee and to falsely notarize the document; and (3) if so, what penalty is appropriate.

PRELIMINARY STATEMENT

On January 27, 1998, the Florida Commission on Ethics (the Commission) issued an Order Finding Probable Cause to believe that Respondent, Anthony Grant, as Mayor of the Town of Eatonville, Florida (Town/Town of Eatonville) violated Section 112.313(6), Florida Statutes (1) by directing a Town employee to use a computer owned by the Town to generate campaign literature and/or address mailing labels in support of a candidate's campaign; (2) by using the Town's postage machine to backdate envelopes containing voter registration forms in an attempt to register voters after the official deadline had expired; and (3) by preparing or having another person prepare a fraudulent or false affidavit concerning the postage meter matter and by having a Town employee to forge the signature on the affidavit and to falsely or fraudulently notarize the affidavit. On March 26, 1998, the case was forwarded to DOAH for assignment of an administrative law judge to conduct the hearing.

Prior to the final hearing, the parties submitted a Joint Prehearing Stipulation which set forth a number of stipulated facts which required no proof at hearing. During the hearing, the Advocate withdrew the charge related to Respondent's using a computer owned by the Town to generate mailing labels in support of a candidate's campaign.

At the hearing, the Advocate for the Commission called four witnesses: Louise Franklin; Betty Golson; Ken Harley; and Catherine Williams. Respondent testified on his own behalf. The parties stipulated to the introduction of four joint exhibits, all of which were received into evidence. The Advocate offered and had one exhibit admitted into evidence. The Respondent offered and had three exhibits admitted into evidence.

The proceeding was recorded, but was not transcribed. The Advocate filed a Proposed Recommended Order and Respondent filed legal argument.

FINDINGS OF FACT

1. At all times pertinent to this proceeding, Respondent, Anthony Grant, was Mayor of the Town of Eatonville, Florida. He was elected to this office in or about November 1994, and has served in this capacity continuously since that time.

2. As the Mayor of Eatonville, Respondent was subject to the requirements of Part III, Chapter 112, Florida Statutes, the Code of Ethics for Public Officers and Employees (the Code of Ethics).

3. Pursuant to Section 97.055, Florida Statutes, February 3, 1995, was the deadline for the receipt of voter registration forms in the Office of the Supervisor of Elections for those registrants to be eligible to vote in the March 4, 1995, election of Eatonville Town Council members. Registration forms were deemed received by the deadline if the postmark affixed by the United States Postal Service was February 3, 1995, or a date prior thereto.

4. At all times relevant to this proceeding, Louise Franklin was employed as a clerk by the Town of Eatonville. In that position, Ms Franklin was responsible for operating and setting the date on the Town's postage meter machine. The duties associated with the postage meter machine were also performed by one other clerk who worked with Ms. Franklin.

5. Typically, the date on the machine was set either the morning of that particular day or at or near the close of business the preceding business day.

6. On Monday morning, February 6, 1995, Respondent and his secretary, Ms. Tammy Stafford, went to the office where Ms. Franklin worked to stamp six voter registration forms that were to be mailed to the Supervisor of Elections Office. The Town of Eatonville had been involved in a voter registration campaign and these registration forms had been brought to Respondent's office that morning by a local citizen.

7. According to Respondent, after he and his secretary stamped two or three of the envelopes containing the voter registration forms, his secretary noticed that the date imprinted the envelopes was February 3, 1995, rather than February 6, 1995. Respondent further testified that after the error was discovered, he asked Ms. Franklin to show them how to change the date on the machine. Ms. Franklin showed Respondent how to set the date on the postage meter machine.

8. At the time of Respondent's request for assistance with the postage meter machine, the Town had only recently acquired the machine, and it had been used by Ms. Franklin and the other clerk for only a short period of time. Prior to February 1995, Respondent had not used the postage meter machine.

9. Ms. Franklin complied with Respondent's request for instructions on how to use the postage meter machine. Ms. Franklin went into the room in which the machine was located and showed the Respondent and his secretary how to use it. Ms. Franklin's instruction to the Respondent and Ms. Stafford included an explanation and demonstration of how to change the date on the postage meter machine. During the course of her explanation to the Respondent and Ms. Stafford, Ms. Franklin inserted a blank envelope in the postage meter machine to show how the machine worked. Thereafter, Ms. Franklin left Respondent and his secretary in the room where the postage meter machine was located.

10. Ms. Franklin was unsure if the Mayor and/or Ms. Stafford stamped any of the envelopes before the Respondent came and asked for her assistance in using the postage meter machine.

11. Ms. Franklin did not see Respondent or Ms. Stafford use the postage meter machine. Nor did Ms. Franklin actually see the date that had been imprinted on the six envelopes by the postage meter machine. However, Ms. Franklin assumed that, after she left the immediate area where the postage meter machine was located, Respondent and Ms. Stafford used the machine to stamp the envelopes that were addressed to the Supervisor of Elections Office.

12. Later on the morning of February 6, 1995, some time after Respondent and Ms. Stafford left the area where the postage meter machine was located, Ms. Franklin noticed that the date on the postage meter machine was set to February 3, 1995. Ms. Franklin believed that during the time that she was training Respondent and Ms. Stafford on how to use the postage meter machine, the machine was set for February 6, 1995. Although Ms. Franklin had no independent or clear recollection that the postage meter machine was set for February 6, 1994, she testified at hearing that she "probably would have noticed if the date was incorrect."

13. Ms. Franklin never observed Respondent or Ms. Stafford backdate the postage meter machine. Neither did Ms. Franklin see anyone go into the room in which the postage meter machine was located after Respondent and his secretary left that room.

14. On the afternoon of February 6, 1995, Ms. Franklin went to Betty Golson, Acting Town Clerk, and told her that Respondent and his secretary had used the postage meter machine to stamp voter registration forms and that she had given them instructions on how to use the machine. Ms. Golson was not in or near Ms. Franklin's office or the room where the postage meter was located on the morning of February 6, 1995, when Respondent and his secretary were there. However, based on Ms. Franklin's comments, Ms. Golson felt compelled to report her perception of the incident to Betty Carter, the Orange County Supervisor of Elections, in a February 7, 1995, memorandum. The memorandum stated:

[Ms. Franklin] witnessed the Mayor's secretary sending a voter's registration form through the postage meter. She also said that she witnessed the Mayor sending through the postage meter at least three (3) voter's registration forms. [Ms. Franklin] further stated that both the Mayor and his secretary asked for directions on how to change the meter's date to which she did give them both instructions on the procedures.

15. After Respondent learned about Ms. Golson's memorandum to the Supervision of Elections, he and Mr. Harley met with Ms. Franklin. During the meeting, Respondent asked Ms. Franklin to prepare a written statement describing what occurred on February 6, 1995, when he and his secretary were in her office. However, Respondent did not tell or suggest to Ms. Franklin what she should include in the statement.

16. Pursuant to Respondent's request, on February 8, 1995, Ms. Franklin typed and signed a statement in which she recounted the events of February 6, 1995, relative to the postage meter machine. Ms. Franklin's statement read:

This is to verify that I, Louise Franklin, gave instructions to staff how to change the postage meter machine after they had sent a few pieces of mail through which reflected the date February 3, 1995.

17. After Respondent read Ms. Franklin's February 8, 1995, statement, it was his opinion that the statement was vague. Based on this opinion, Respondent asked Ms. Franklin to write a more precise, detailed statement describing the events of February 6, 1995. In making this second request, Respondent did not tell Ms. Franklin what the statement should say.

18. Ms. Franklin complied with Respondent's request and, on February 9, 1995, she typed and signed a second statement. The second statement provided more details and was more precise than the first statement. For example, in this statement, rather than stating that she instructed "staff" on how to use the postage meter machine, Ms. Franklin specifically noted that she provided the instruction to "the Mayor and his secretary." Furthermore, in her second statement, Ms. Franklin included the date on which the instruction occurred, a detail that was absent from Ms. Franklin's first statement. Also, in the second written statement, Ms. Franklin wrote:

I demonstrated for them step-by-step, which consisted of changing the dates, months, year, etc., I even carried a blank envelope through the machine as an example. They were able to send a few pieces of mail throuth [sic] themselves.

19. The two statements prepared and signed by Ms. Franklin in February 1995, truthfully and accurately describe the postage meter incident that occurred on February 6, 1995, and do not conflict with Respondent's version of the incident.

20. Ms. Franklin testified that she did not know whether Respondent or Ms. Stafford ever changed the date on the postage meter machine. Moreover, Ms. Franklin acknowledged that she did not know what date was on the postage meter machine when the Respondent and his secretary finished using the machine on February 6, 1995. Finally, notwithstanding Ms. Golson's memorandum and Ms. Franklin's second statement, both of which indicated that Respondent and his secretary used the postage meter machine to stamp mail or voter registration forms, Ms. Franklin testified that she did not know whether the Respondent and/or Ms. Stafford sent any mail through the postage mater machine.

21. After Respondent received Ms. Franklin's second statement, Respondent told Mr. Harley that he was not pleased with the affidavit and wanted it redone. Respondent then met with Mr. Harley and discussed what should be included in the affidavit. Moreover, just before or during the meeting, Respondent directed Mr. Harley "to take care of it today." Respondent's intent was to accurately and completely memorialize the incident of February 6, 1995.

22. Catherine Williams, a clerk with the Town of Eatonville, worked in the area immediately outside the office where Respondent and Mr. Harley met to discuss the affidavit. Prior to Respondent's and Mr. Harley's entering the office to begin their meeting, Ms. Williams overheard Respondent tell Mr. Harley that he was not pleased with Ms. Franklin's second statement and that he wanted it redone.

23. After the meeting between Respondent and Mr. Harley was over, Respondent left the office and exited the building. After Respondent left the office, Mr. Harley approached Ms. Williams, gave her a handwritten copy of an affidavit, and told her to type it. The affidavit that Mr. Harley gave to Ms. Williams was in Mr. Harley's handwriting.

24. Once Ms. Williams typed the affidavit, Mr. Harley immediately directed her to sign Ms. Franklin's name on the affidavit, and to notarize the affidavit. In compliance with Mr. Harley's directive, Ms. Williams signed Ms. Franklin's name on the affidavit and, also, notarized the affidavit. Notwithstanding Mr. Harley's testimony to the contrary. Respondent never instructed or told Mr. Harley to direct Ms. Williams to prepare, forge or notarize the affidavit. Respondent did, in fact, instruct Mr. Harley to have a more concise affidavit prepared. However, Respondent never instructed Mr. Harley to have the affidavit prepared in a fraudulent manner.

25. Although Respondent merely told Mr. Harley that he wanted the affidavit redone and directed Mr. Harley "to take care of it today," Mr. Harley testified that he understood this to be an order that he direct Ms. Williams to forge Ms. Franklin's signature on the affidavit and then to falsely notarize that signature. Mr. Harley's interpretation of Respondent's directive was both unreasonable and inaccurate, and his testimony in that regard lacks credibility.

26. Mr. Harley never presented the affidavit referred to in paragraph 24 above to Ms. Franklin for her review and signature. Although Ms. Franklin never read or signed the document, the affidavit purported to be that of Louise Franklin. Furthermore, it was undisputed that Mr. Harley never gave a copy of the forged affidavit to Respondent. The affidavit written by Mr. Harley and typed, signed, and notarized by Ms. Williams was not seen or read by Respondent until December 1996, during an investigation being conducted pursuant to a complaint filed by Mr. Harley.

27. On February 9, 1995, when Respondent and Mr. Harley met regarding the affidavit, Mr. Harley was a disgruntled employee. By his own admission, Mr. Harley was discontent while working in Respondent's administration. This was due, at least in part, to Mr. Harley's philosophical differences with Respondent over Respondent's management style. As early as December 1994, Mr. Harley approached Respondent about Harley's desire to sever his employment relationship with the Town of Eatonville. In the context of the discussion, the issue of Mr. Harley's receiving severance pay was raised. Respondent told Mr. Harley that pursuant to Harley's employment contract, he would be entitled to severance pay if he were fired, but not if he resigned. The issue of Mr. Harley's entitlement to severance pay had not yet been resolved on February 9, 1995.

28. Mr. Harley left his employment with the Town of Eatonville in March 1996, as part of a negotiated resignation agreement. As a result of his resignation, Mr. Harley suffered a financial loss in that he did not receive severance pay when he resigned.

29. Mr. Harley eventually received $9,000.00 in severance pay as a settlement in a lawsuit he filed against the Town of Eatonville in March 1996, after he resigned. Also, shortly after resigning from the Town of Eatonville, Mr. Harley filed a complaint against the Town with the State Attorney's Office in which he alleged approximately fifty-four instances of wrongdoing.

CONCLUSIONS OF LAW

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

31. 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).

32. 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 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 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).

33. 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).

34. It has been alleged that Respondent violated Section 112.313(6), Florida Statutes, by using the Town's postage machine to backdate envelopes containing voter registration forms in an attempt to register voters after the official deadline for registration had expired, and (2) by preparing a fraudulent affidavit concerning the postage machine incident and directing a Town employee to forge the signature of another Town employee and to falsely notarize the affidavit.

35. Section 112.313(6), Florida Statutes provides:

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.

36. 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.

37. 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 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 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 acts or omissions which are inconsistent with the proper performance of his public duties.

38. With regard to the first element, the parties have stipulated that Respondent, as Mayor of the Town of Eatonville, is subject to the requirements of Part III, Chapter 112, Florida Statutes, (Code of Ethics). Therefore, this element has been proven.

39. Based on the allegations in this case, to establish a violation of Section 112.313(6), Florida Statutes, it must next be shown that Respondent used his official position and property to secure a special privilege, benefit, or exemption for himself or others. This element has not been proven by the Advocate.

40. With regard to the use of the postage meter machine, Respondent admitted that he and his secretary used the machine to stamp approximately six voter registration forms that were to be mailed to the Supervisor of Elections Office. The mere use of the postage meter machine has not been challenged as inappropriate or improper. Rather, the Advocate asserts that Respondent backdated the postage meter machine to February 3, 1995, in an attempt to secure a special political benefit. The Advocate argues that: (1) Respondent was very interested in making sure the candidates he supported were elected to the Eatonville Town Council in March 1995; (2) in furtherance of this objective, Respondent wanted to have individuals registered who would vote for candidates who the Respondent supported; and (3) by backdating the postage meter machine, Respondent was attempting to register voters after the deadline.

41. The Advocate's position is not supported by the evidence in this case. To establish that Respondent used his position or Town property to secure a special benefit for himself, it must be shown is that Respondent, in fact, backdated the postage meter machine. This fact was not established, in that the evidence presented at hearing fell short of the clear and convincing standard applicable in this proceeding. Absent proof that Respondent took the alleged action to secure for himself a special privilege or benefit, there can be no showing that Respondent acted corruptly.

42. It is next alleged that Respondent violated Section 112.313(6), Florida Statutes, by preparing or directing a Town employee to prepare a fraudulent affidavit concerning the postage meter incident, and by directing a Town employee to forge a signature on the affidavit and then to falsely notarize it. Again, in order for it to be concluded that Respondent violated Section 112.313(6), Florida Statutes, as alleged, the Advocate must establish the elements set forth in paragraph 37 above.

43. As previously stated, the parties have stipulated that Respondent, as Mayor of the Town of Eatonville, is a public officer and is subject to the Code of Ethics. Therefore, the first element is proven.

44. In order to establish the remaining two elements set forth in 37 it must first be shown that Respondent either prepared or directed that the affidavit be prepared, and that he also directed Ms. Williams to sign Ms. Franklin's name on the affidavit and to then notarize the affidavit. These underlying facts were not established.

45. Contrary to the allegations, the evidence established that Respondent did not prepare a fraudulent affidavit nor did he direct Ms. Williams to type the affidavit, to sign Ms. Franklin's name on the affidavit or to falsely notarize the affidavit.

46. The allegations relative to the affidavit have not been established by clear and convincing evidence as required to prove that Respondent violated Section 112.313(6), Florida Statutes.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that a Final Order and Public Report be entered finding that the Respondent, Anthony Grant, did not violate Section 112.313(6), Florida Statutes.

DONE AND ENTERED this 29th day of October, 1998, in Tallahassee, Leon County, Florida.

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CAROLYN S. HOLIFIELD

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(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 October, 1998.

COPIES FURNISHED:

Eric S. Scott

Assistant Attorney General

Office of the Attorney General

The Capitol, Plaza Level 01

Tallahassee, Florida 32399-1050

Gary R. Dorst, Esquire

Post Office Box 947509

Maitland, Florida 32794-7509

Bonnie Williams, Executive Director

Commission on Ethics

2822 Remington Green Circle

Suite 101

Post Office Drawer 15709

Tallahassee, Florida 32317-5709

Kerrie Stillman

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.