97-19 Recommended Order, In re TANIT ROMERO

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

In re: TANIT ROMERO, ) Case No. 98-5618EC

)

Respondent. )

__________________________________)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case by video teleconference on June 14, 1999, at Miami, Florida, before Susan B. Kirkland, a designated Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Advocate: Eric Scott, Advocate

Florida Commission on Ethics

Office of the Attorney General

The Capitol, Plaza 01

Tallahassee, Florida 32399-1050

For Respondent: No appearance.

STATEMENT OF THE ISSUE

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

PRELIMINARY STATEMENT

On April 21, 1998, the Florida Commission on Ethics filed an Order Finding Probable Cause to believe that Respondent, Tanit Romero, violated Section 112.313(6), Florida Statutes, by using her position to benefit Dr. Michael DeCardenas and West Gables Rehabilitation Center in a manner which was inconsistent with the proper performance of her public duties. The case was forwarded to the Division of Administrative Hearings on December 22, 1998, for assignment to an administrative law judge. The final hearing was scheduled for April 30, 1999. On March 22, 1999, the Advocate filed a motion to continue, which was granted, and the final hearing was reset for June 14, 1999.

At the final hearing, the Advocate called the following witnesses: Louise Johnson, Isora Carbajal, Ted Davis, Lucille DeVera, Ana DeRobles, June Molina, and Beau Jackson. Advocate's Exhibits numbered 1-6 were admitted in evidence. No testimony was presented on behalf of Respondent, and no exhibits were entered into evidence for Respondent.

No transcript was ordered. The Advocate requested that his proposed recommended order be submitted on or before June 29, 1999. A post-hearing order was issued advising the parties of the deadline for submitting proposed recommended orders. The Advocate filed his proposed recommended order on June 19, 1999. Respondent did not submit a proposed recommended order. The Advocate's proposed recommended order has been considered in rendering this recommended order.

FINDINGS OF FACT

1. Respondent, Tanit Romero (Romero), was a Claims Administrator in the Risk Management Division at Metro Dade County (County) during 1991-1995. She was responsible for supervising the tort liability and workers' compensation sections. As a claims administrator, Romero had the power to refer claimants to physicians and hospitals for evaluation and treatment.

2. The County used a list of physicians to whom the County staff referred claimants. The list was referred to as a PPO list. The physicians who were on the PPO list were paid the full fee for their services. Physicians not on the PPO list received a lesser fee for their services based on the state rate for workers' compensation physician reimbursement. The rationale for paying the PPO physicians more money was that the County would receive better service. Romero, who was responsible for maintaining the PPO list, could add and delete physicians from the PPO list.

3. Dr. Michael DeCardenas (DeCardenas) is a physician who specializes in rehabilitative medicine. He is the medical director and chief of staff of the West Gables Rehabilitation Hospital (West Gables). In approximately 1990, DeCardenas and West Gables began doing business with the County's Risk Management Division. The County referred patients to DeCardenas for evaluation.

4. In 1990 or 1991, DeCardenas and Romero began an intimate relationship. After they began their affair, Romero placed DeCardenas on the PPO list and instructed claims examiners to refer claimants to DeCardenas and West Gables for evaluation and treatment.

5. Although there were other doctors in the Miami area that provided the same services that DeCardenas provided, Romero directed employees to send claimants more often to DeCardenas than to the other providers.

6. From 1991 to 1995, West Gables received the following amounts from the County for services:

1991 $307,037

1992 $702,178

1993 $641,890

1994 $581,083

1995 $124,775

1996 $ 76,932

1997 $ 15,497

7. From 1991 to 1995, DeCardenas received the following amounts from the County for his services:

1991 $ 8,273

1992 $71,157

1993 $64,369

1994 $47,882

1995 $25,471

1996 $ 4,218

8. When compared to the payments made by the County to other providers, DeCardenas and West Gables were paid an abnormally large sum of money.

9. Staff within the Risk Management Division were not happy with the services provided by DeCardenas. Staff took take their complaints to Romero concerning DeCardenas' poor performance. The services would improve after the complaints were made but would soon deteriorate. Although DeCardenas's performance record was not good, Romero did not remove him from the PPO list until she and DeCardenas had ended their affair. According to DeCardenas, he broke off the affair, and his business with the County stopped.

CONCLUSIONS OF LAW

10. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding. Sections 120.57(1) and 112.324, Florida Statutes.

11. The Advocate has the responsibility to establish the alleged violation by Respondent by clear and convincing evidence. Latham v. Florida Commission on Ethics, 694 So. 2d 83 (Fla. 1st DCA 1997).

12. The Advocate alleges that Respondent violated Section 112.313(6), Florida Statutes, which 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.

13. 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.

14. 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 in order 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.

15. As a Claims Administrator in the Metropolitan Dade County Risk Management Division, Romero was a public employee

subject to the requirements of Chapter 112, Part III, Florida Statutes.

16. Romero used her position as Claims Administrator to add DeCardenas to the PPO list and to direct County employees to refer business to DeCardenas and West Gables Hospital.

17. Romero's actions were taken to secure a special benefit for DeCardenas by providing him with additional patients for his practice, thereby increasing his income.

18. Romero acted with a corrupt intent when she inappropriately used her official position to direct patients to DeCardenas. Romero had received numerous complaints about the service provided by DeCardenas, but she continued to cause patients to be sent to DeCardenas. This was inconsistent with her performance as a claims administrator since the reason for paying the providers on the PPO list a full fee was to secure better service. As her affair with DeCardenas progressed the amount of business referred to DeCardenas increased. When the affair began to wane so did the business that was directed to DeCardenas. Romero's personal relationship with DeCardenas affected the amount of County business that was directed to DeCardenas and West Gables.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that Tanit Romero violated Section 112.313(6), Florida Statutes, imposing a $1,000 fine, and issuing a public reprimand and public censure.

DONE AND ENTERED this 8th day of July, 1999, 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

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 8th day of July, 1999.

COPIES FURNISHED:

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

Eric S. Scott, Advocate

Florida Commission on Ethics

Office of the Attorney General

The Capitol, Plaza 01

Tallahassee, Florida 32399-1050

Tanit Romero

7823 Southwest 91st Avenue

Miami, Florida 33173

Sheri Gerety

Complaint Coordinator and Clerk

Florida Commission on Ethics

Post Office Drawer 15709

Tallahassee, Florida 32317-5709