98-111 & 98-112 Recommended Order, In re ROBIN HOLMAN and THOMAS ROUSSEAU

6. Respondent Rousseau acknowledged that he provided a copy of the subject letter to Ms. Wilhelm for the express purpose of including it in the District's office mail-out.

7. The cost of the subject mailings were paid for with funds that were derived from assessments paid to the District by its property owners.

8. The aforementioned mail-out was the last District mailing issued before the June 20, 1998, District election.

B. Findings of Fact From Documentary Evidence

9. On or about May 11, 1998, the District mailed a Notice of Annual Meeting of Landowners of Flagler Estates Road and Water Control District. The notice advised landowners within the District that the annual meeting would be held on June 20, 1998, at 10:00 a.m., at the District office. Moreover, the notice stated that the purpose of the meeting was to elect supervisors, receive annual reports, and consider other business that may properly be brought before the meeting. Enclosed in the aforementioned mail-out were three letters, one from each of the three members of the District's Board of Supervisors, including Respondent Rosseau and Respondent Holman.

10. In his letter, Respondent Rousseau advised property owners of problems faced by the District during the year; provided information about his background; and stated that his "term expired in June" and that he was seeking reelection.

11. In her letter, Respondent Holman provided information about her background, advised landowners that she had only served as a District Supervisor for four months, and detailed the activities in which she had been involved on behalf of the District. Lastly, Respondent Holman wrote, "I have enjoyed my short time on the Board and hope to be elected to fulfill Gerrit Stewart's one-year term."

12. Ms. Calvert Hanson, the District's general counsel, suggested to Respondents Rosseau and Holman that the above-referenced letters be included in the District's official mail-out. Prior to the letters being mailed out to the property owners, Ms. Hanson reviewed the letters but made no modifications, except for correcting some grammatical errors. Ms. Hanson did not believe that the letters were solicitations for votes for Respondents' election or reelection to the District's Board of Supervisors.

13. Respondent Holman's and Respondent Rousseau's decision to include their respective letters in the District's official mail-out was based solely on the suggestion of the District's general counsel.

14. Prior to the letters being sent out, Respondents provided Ms. Hanson with copies thereof for her review. Having received no recommendations for substantive modifications to the letters, Respondents Holmon and Rousseau did not believe that the contents of the letters constituted an improper solicitation for support in the District's election for Supervisors.

15. Notwithstanding Respondents' subjective belief to the contrary, a portion of each of their letters constituted a solicitation for support in the June 1998 election for the District's Board of Supervisors. While Respondents' letters included information regarding the District, the letters also clearly indicated that Respondents were seeking to be elected or reelected to the District Board of Supervisors. Based on the content of the letters and the fact that they were included in the mail-out noticing the annual meeting at which supervisors would be elected, it appears reasonable that Respondents were seeking support for their election. Thus, although the letters did not expressly request that landowners "vote" for Respondents, such request was implicit in the letters.

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.

17. Section 112.322, Florida Statutes, and Rule 34-5.0015, Florida Administrative Code, authorize the Commission on Ethics (Commission) to conduct investigations and to make public reports about 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 vs. Department of Health and Rehabilitative Services, 348 So. 2d 349 (Fla. 1st DCA 1977). In this proceeding, it is the Commission, through its Advocate, that is asserting the affirmative: that the Respondents violated Section 112.313(6), Florida Statutes.

19. Therefore, in order to prevail, the Commission must establish by clear and convincing evidence the elements of Respondent's alleged violations. Latham v. Florida Commission on Ethics, 694 So. 2d 83 (Fla. 1st DCA 1977), citing Department of Banking and Finance v. Osborne Stern, 670 So. 2d 932 (Fla. 1996) and Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987).

20. Section 112.313(6), Florida Statutes, 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.

21. The term "corruptly" is defined by Section 112.313(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.

22. In order to conclude that 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.

23. With regard to the first element, the parties have stipulated that Respondents, as Supervisors of the District, were public officers and, as such, subject to the requirements of Part III, Chapter 112, Florida Statutes. Therefore, this element has been proven.

24. Based on the allegations in the 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.

25. The evidence established that Respondents Holman's and Rousseau's letters were included in the District's official Notice of its Annual Meeting sent to landowners in the District. Furthermore, the evidence showed that the noticed annual meeting was for the purpose of electing of supervisors to the District's Board and that both Respondents were candidates for the two open positions on the District's Board of Supervisors. Given the content of Respondent's letters and the timing of the mail-out to landowners in the District, it appears that they were included, not simply to inform and educate taxpayers about issues concerning the District, but also to help Respondents' election prospects.

26. The evidence established that the letters were produced or reproduced by District personnel using District equipment and supplies. Moreover, the letters were included in an official mail-out to all property owners in the District and the postage for these mail-outs was paid for with funds that were derived from assessments paid to the District by its property owners.

27. By inserting Respondents' letters into the District mail-out at District expense, the Respondents inappropriately used resources within their trust to secure a special benefit for themselves. But for their official positions, Respondents clearly would have been unable to have the letters, which promoted their election, sent out at District expense and included in an official District mail-out.

28. 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."

29. 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.

30. In the instant case, it has not been established by clear and convincing evidence that Respondents acted corruptly. Rather, the evidence established that Respondents' letters were included in the District's official mail-out as a result of the District's general counsel's recommendation. Moreover, the letters were not mailed out until after Respondents provided them to the District's general counsel for review and after she, in fact, reviewed them.

31. Based on the facts, there is insufficient evidence to find that the Respondents acted with the requisite corrupt or wrongful intent necessary to find a violation of 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 Respondent Robin Holman and Respondent Thomas Rousseau did not violate Section 112.313(6), Florida Statutes.

DONE AND ENTERED this 26th day of May, 1999, 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 26th day of May, 1999.

COPIES FURNISHED:

Eric S. Scott

Assistant Attorney General

Attorney General's Office

The Capitol, Plaza Level 01

Tallahassee, Florida 32399-1050

Linda Calvert Hanson, Esquire

3501-B North Ponce de Leon Boulevard

Suite 342

St. Augustine, Florida 32095

Sheri Gerety

Complaint Coordinator and Clerk

Ethics Commission

2822 Remington Green Circle

Post Office Drawer 15709

Tallahassee, Florida 32317-5709

Phil Claypool, General Counsel

Ethics Commission

2822 Remington Green Circle

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.

RECOMMENDED ORDER