STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

 

 

IN RE:  RUDY MALOY,        Respondent.	) ) ) )		Case No. 02-1231EC

RECOMMENDED ORDER

 

     This case came before Administrative Law Judge John G.Van Laningham for final hearing on January 13-14, 17, 22, 24, and 27, 2003, in Tallahassee, Florida.

APPEARANCES

The Advocate:    Virlindia Doss, Esquire

                 Senior Assistant Attorney General

                 Attorney General’s Office

                 PL-01, The Capitol

                 Tallahassee, Florida  32399-1050     

                                           

     For Respondent:  Mark Herron, Esquire

                      Messer, Caparello & Self, P.A.

                      Post Office Box 1876

                      Tallahassee, Florida  32302-1876

 

    Bruce A. Minnick, Esquire

    The Minnick Law Firm

    Post Office Drawer 15588

    Tallahassee, Florida  32317-5588

 

STATEMENT OF THE ISSUES

     The issues in this case are, one, whether Respondent corruptly used his official positions to sexually harass female subordinates in violation of Section 112.313(6), Florida Statutes; and, two, whether Respondent solicited or accepted sexual favors from female subordinates based upon any understanding that his vote, official action, or judgment would be influenced thereby, in violation of Section 112.313(2), Florida Statutes. 

PRELIMINARY STATEMENT

 

     On July 31, 2001, the Florida Commission on Ethics (“Commission”) determined that probable cause existed to believe that Respondent Rudy Maloy, as an employee of the Florida Department of Transportation, as a member of the Leon County Commission, or both, had violated Sections 112.313(2) and 112.313(6), Florida Statutes.  On March 25, 2002, the Commission forwarded the case to the Division of Administrative Hearings, where the undersigned administrative law judge was designated to preside over the formal hearing.

     The evidentiary phase of the final hearing lasted five days over a two-week period.  The Commission’s Advocate called the following witnesses:  Edward Terrell (“Terry”) Denham, Laurie Leonella Bradley, Deborah Lynn McKee, Joey Gordon, Sylvia Porter, Ruth Dillard, Parwez Alam, Ophelia Morris Ross, Denise Williams, Tina Williams, Traci Reed, Clifford Thaell, Marie Mattox, Mary Kay Cariseo, and Stan Derzypolski.  In addition, the Advocate’s exhibits a, d, e, i, k, n, p, r, s, t, u, v, w, x, y, z, and ee were received into evidence.

     In his case, Respondent testified on his own behalf and presented the following additional witnesses:  Parwez Alam, Clarence E. Moore, Jr., Traci Reed, Cynthia Turner, Herbert W. Thiele, Terri O’Steen Cockhill, Stephanie Stephens Stanford, Linda Summerlin, Michael O’Connell, Marie Mattox, Clifford Thaell, Anthony Grippa, Robert Bruce Rackleff, Laurie Leonella Bradley, and Jemaine Dickens.  As well, Respondent’s exhibits a, a-1, b, c, d, e, f, g, h, m-1, z, dd, ee, gg, ii, kk, ll, oo, qq, rr, ss, and tt were admitted into evidence. 

     The parties stipulated to the admission of Joint Exhibits A through E, inclusive.  They also designated and cross-designated portions of Respondent’s deposition testimony, which portions were received in lieu of, and in addition to, Respondent’s live testimony, as if read into the record at hearing.

     The final hearing transcript was filed on February 25, 2003.  Thereafter, each side timely filed a proposed recommended order.  Respondent also filed a Memorandum of Law Supporting Dismissal of All Ethics Charges Based Upon Sexual Harassment.  All post-hearing submissions were carefully considered.

FINDINGS OF FACT

 

     1.  Respondent Rudy Maloy (“Maloy”) worked at the Florida Department of Transportation (“DOT”) from 1980 until October 21, 2001.  The last seven years of his career in state government were spent in DOT’s Turnpike District Planning Office, where Maloy served as the “Public Involvement Manager.”  In that capacity, Maloy conducted workshops and public hearings around the state concerning Turnpike projects.

     2.  In 1992, Maloy was elected to the Leon County Commission as a Commissioner-at-Large.  He was reelected twice, in 1996 and 2000.  At the time of the final hearing, Maloy was a sitting Commissioner.

Laurie Bradley

     3.  When Maloy began working in the Turnpike District Planning Office on October 7, 1994, Laurie Bradley (“Bradley”) was already employed there in a career service position, namely, administrative assistant to the director of planning.  Though she reported to the director, who was her immediate supervisor, Bradley performed secretarial functions for others in the office, including Maloy after his arrival.  Maloy did not have the authority to promote Bradley, increase her salary, or let her go, but he was one of Bradley’s “bosses” in the sense that he could assign her tasks.

     4.  Maloy and Bradley enjoyed a cordial relationship at work, at least by outward appearances.  For example, Maloy frequently gave Bradley (and other co-workers) the complimentary tickets to events such as hockey games and concerts that he, as a County Commissioner, routinely received but could not always use himself.  Bradley genuinely appreciated this token of Maloy’s generosity.  She thought Maloy was a very friendly person, and she was friendly toward him.  The two, in Bradley’s words, “got along fine.” 

     5.  At the final hearing, however, Bradley testified about other acts and practices of Maloy’s that she considered decidedly unfriendly.  According to Bradley, Maloy touched her inappropriately on a number of occasions, as follows:

          a.  Hugs.  Bradley alleged that Maloy hugged her——from the side, around the waist——many times, and that after awhile this began to bother her. 

          b.  Shoulder rubs.  Bradley alleged that “fairly often” Maloy stood behind her and rubbed her shoulders without ever being invited or encouraged to do so.

          c.  Kisses.  Bradley alleged that in or around February 1996, Maloy kissed her on the cheek.  Bradley also claimed that a few weeks later, Maloy kissed her on the mouth, while the two were alone together in an elevator going down at the end of a workday.

          d.  Caresses.  Bradley asserted that on one occasion in May 1996, within hours, ironically, after they had received sexual harassment training, Maloy taunted her by stroking her arm and asking if such behavior constituted sexual harassment.  Bradley further averred that Maloy expressed his opinion that if one person is bothered by another’s conduct in the workplace, then the two should resolve the problem privately, rather than reporting it to management.  Finally, Bradley alleged that, as part of this episode of teasing, as she perceived it, Maloy stated that he might be able to get her a job with the county having a higher salary than her present position.[1]    

     6.  Maloy testified that he never touched Bradley inappropriately, and he specifically denied her allegations to the contrary.  Thus, the evidence is irreconcilably in conflict as to whether Maloy sexually harassed Bradley.

     7.  It is significant, therefore, that not a single witness who testified at the final hearing had actually seen Maloy touch Bradley improperly or in an unwelcome manner.  In contrast, one disinterested witness testified credibly that she observed Bradley hug Maloy once or twice as a friendly gesture of thanks for receiving tickets to a hockey game; this testimony is accepted as true.

     8.  Several witnesses who lacked personal knowledge of any misconduct on Maloy’s part were called to establish that Bradley told others in confidence——at or near the time of the events in question——that Maloy was allegedly harassing her.  There is no doubt that Bradley did share such information with others.  In fact, her contemporaneous accusations were soon reported to persons in DOT’s management, who understandably insisted that an investigation be conducted.  Consequently, Bradley submitted a formal written complaint about Maloy to her employer, and DOT investigated the matter.[2]

     9.  That Bradley complained to others about Maloy in 1996 is circumstantial evidence from which one might infer that the alleged sexual harassment occurred.[3]  It is relatively weak circumstantial evidence, however, because it ultimately rests largely, if not entirely, on the credibility of the very same person——Bradley——whose testimony it was offered to corroborate.  Indeed, drawing the inference largely would beg the question of Bradley’s veracity, for doing so would require that her veracity (which Maloy disputes) be assumed.[4]  

10.  Having carefully weighed and evaluated all of the relevant, persuasive evidence, the undersigned is unable to find, without hesitancy, that Maloy engaged in the conduct of which Bradley has accused him.  This determination, it should be stressed, reflects the fact-finder’s judgment concerning the weight of the evidence and nothing more; it is purposefully not a finding regarding what occurred or did not occur between Bradley and Maloy.[5]
     11.  The undersigned affirmatively finds that whatever transpired between them, Maloy did not intentionally use or attempt to use his official positions to secure a benefit for himself through the alleged harassment of Bradley.[6]

12.  Likewise, it is found, by a preponderance of the evidence, that there was no understanding between Maloy and Bradley that Maloy’s votes, official actions, or judgment would be influenced by any thing of value that Maloy solicited or accepted from Bradley——assuming he requested or received any such thing, which was not clearly and convincingly proved.

Ophelia Morris

     13.  In December 1996, Ophelia Morris (“Morris”) replaced Bradley as the director’s administrative assistant in the Turnpike District Planning Office.  As had Bradley, Morris served as a secretary to a number of managerial employees, including Maloy.  She was a career service employee.  Maloy could assign work to Morris, but he lacked the power to promote or fire her.

     14.  Maloy and Morris became friends, and their friendship deepened over time.  By 1999, the two were sufficiently close that Morris routinely confided in Maloy, sharing private information with him concerning the personal problems she was having with her then-fiancé, whom she planned to (and did) marry in May of that year. 

     15.  In June 1999, soon after Morris got married, Morris and Maloy began a mutually consensual sexual affair.  While there are some conflicts in the evidence regarding certain immaterial details of their relationship,[7] the fact-finder is convinced that neither party entered into this adulterous affair as the result of coercion, bribery, intimidation, harassment, or any type of untoward pressure, either express or implied; rather, each wanted to have an extramarital sexual relationship with the other.

     16.  Some time in the autumn of 1999, Maloy offered Morris a job as his aide at the County Commission.[8]  The undersigned is not convinced that Morris had attempted, in any serious way, to break away from the ongoing affair with Maloy before he made this offer of employment.  To the contrary, it is found that, more likely than not, Morris remained satisfied with——and had no present intention to end——the affair at the time Maloy proposed to hire her as his aide.[9] 

     17.  Morris testified that, after initially demurring, she finally agreed to accept the at-will position as Maloy’s aide, wherein she would serve at his pleasure, but only on the condition that she and Maloy must cease having sex once she was on the county’s payroll.  Morris claimed that Maloy reluctantly assented to this condition. 

     18.  Morris started working for Leon County as Maloy’s aide on Monday, December 20, 1999.  At a Christmas luncheon that week, Morris met Denise Williams, a one-time aide to County Commissioner Cliff Thaell who was then employed in the county’s Public Works office.  The two women quickly became friends and——within a matter of days——lovers, commencing their own affair shortly after the start of the new year.

      19.  In January 2000, some secrets were revealed.  Denise Williams divulged to Morris that she, Denise, had slept with Maloy and asked whether Morris had done the same.  Morris lied to Denise Williams and denied that she had slept with Maloy.  Shortly thereafter Morris confronted Maloy with Denise Williams’s disclosure, and he admitted that the two had indeed had sex with one another.  That same month, Denise Williams separately told Maloy about the affair she and Morris were having. 

     20.  Maloy was upset, angry, and hurt that Morris had been seeing Denise Williams.  He urged her to end the affair with Denise Williams, but Morris did not immediately follow Maloy’s counsel.  By February 2000, Maloy’s ongoing interest in Morris’s sexual relationship with Denise Williams was starting to cause Morris to become concerned that she would be fired because of that affair.  Consequently, Morris stopped talking to Denise Williams, effectively suspending their relationship, and informed Maloy about the apparent breakup. 

     21.  In the meantime, Morris and Maloy continued their liaison, contrary to the supposed understanding that the sex would stop.  At hearing, Morris claimed that she continued to participate in the affair with Maloy only because she feared he would fire her if she refused.  However, while Maloy clearly had the power summarily to dismiss Morris, there is no convincing evidence that he ever expressly or impliedly threatened——or even intended——to take such action if she declined to have sex with him.

22.  In June 2000, unbeknownst to Maloy, Morris resumed her relationship with Denise Williams.  Then, in July or August 2000, Denise Williams left a sexually explicit message for Morris on the county’s voice mail system, in a voice mailbox that Maloy checked on a routine basis.  Maloy happened to hear this message before Morris did, and he was not pleased.

     23.  The voice message incident was the beginning of the end of Morris’s employment as Maloy’s aide.  Before long——and for a variety of reasons that are not relevant to this case——Morris resigned, effective September 8, 2000. 

24.  Two findings about Morris’s separation are made based on a preponderance of the evidence.  First, Maloy did not fire Morris or force her to resign.  Second, Morris did not leave because of her sexual relationship with Maloy.[10] 

     25.  The purported understanding, mentioned above, that the affair between Maloy and Morris would terminate upon Morris’s becoming Maloy’s aide is the factual linchpin of the Commission’s case as it relates to Morris.  The reason for this is that Morris clearly and candidly testified (and the undersigned has found) that her relationship with Maloy was mutually consensual and not the product of sexual harassment during the entire period she was employed with DOT.  Thus, to establish that Maloy either intentionally misused his public positions to sexually harass Morris or, by sleeping with her, improperly accepted sexual favors as consideration for some official action, the Commission needed convincingly to distinguish and separate the mutually consensual “DOT phase” of the affair (which did not violate the ethics laws[11]) from the allegedly coercive “County Commission phase.” 

     26.  The undersigned is not convinced, however, that the subject affair comprised two such distinct phases.  The evidence is too much in conflict regarding whether Maloy and Morris had an understanding about——or even discussed——ending their affair effective the date Morris started working as Maloy’s aide for the undersigned to find without hesitancy that such occurred.[12]  As a result, and in any event, it is not clear to the undersigned fact-finder that the affair between Maloy and Morris was coercive during the time she worked as his aide.  The evidence in this regard, as the undersigned has evaluated and weighed it, is much too ambiguous to produce in the mind of the trier of fact a firm belief or conviction that, beginning in January 2000, Maloy was explicitly or implicitly forcing Morris to have sex with him——especially given the undisputed fact that Morris freely and voluntarily had been sleeping with Maloy for the previous six months because she wanted to.[13] 

27.  Additionally, the undersigned affirmatively finds, based on the greater weight of the evidence, that whatever transpired between them, Maloy did not intentionally use or attempt to use his official positions to secure a benefit for himself through the alleged harassment of Morris. 

28.  Finally, it is found, also by a preponderance of the evidence, that there was no understanding between Maloy and Morris that Maloy’s votes, official actions, or judgment would be influenced by any thing of value that Maloy solicited or accepted from Morris.

Denise Williams

     29.  Denise Williams, introduced above, was an aide to Commissioner Thaell from October 1997 through November 1999. 

     30.  At hearing, Denise Williams testified that, in June 1998, Maloy——whom she had known since the mid-1980’s——began to “prey” on her after learning that she was separated from her husband.  She alleged that Maloy frequently came into her office, uninvited, to look at her legs, rub her shoulders, or give her a hug.  She asserted that this attention was unwanted but admitted that she never told Maloy to stop.  To discourage Maloy, she claimed, she tried to dress in a less feminine way.  At the same time, she acknowledged, she sometimes hugged Maloy back.[14]   

31.  The picture of Maloy that Denise Williams’s testimony ultimately paints——for which, it must be said, there is no independent, eyewitness corroboration——is that of a man pursuing her with dogged persistence, ignoring her constant attempts to turn him off.[15]  Maloy, in contrast, suggested that Denise Williams had taken the initiative, signaling her availability by often making mildly suggestive comments to him such as, “You could have been my husband.”  

32.  It is not surprising, then, that while there is no dispute that the two had casual sex at Denise Williams’s apartment in February 1999, the evidence regarding how this came about is very much in conflict.  Denise Williams testified that, despite having no desire whatsoever for Maloy, she finally gave in to his repeated requests for sex in order to “let him satisfy his curiosity” in the hope that he then would quit “bugging” her.[16]  For his part, Maloy depicted Denise Williams as the initiator who, one Tuesday or Wednesday, unexpectedly told him that her kids would be gone the next weekend and asked him to come over for a “visit” on Saturday, which invitation he accepted. 

33.  It is undisputed that Maloy and Denise Williams had casual sex a second time, in July 1999, again at her place.[17]

     34.  Given the conflicts and ambiguities in the evidence, the fact-finder is not convinced, without hesitancy, that the events unfolded precisely as Denise Williams has described them.  Yet, he is not able to find, by the greater weight of the evidence, that Maloy’s testimony is entirely accurate, either.  Thus, there can be no affirmative findings, one way or the other, on the broad question whether Maloy sexually harassed Denise Williams.

35.  Concerning the particular charges, the fact-finder is not convinced that Maloy intentionally used or attempted to use his official position to secure a benefit for himself through the alleged harassment or “pursuit” of Denise Williams.  Nor is he convinced that there was an understanding between Maloy and Denise Williams that Maloy’s votes, official actions, or judgment would be influenced by any thing of value that Maloy solicited or accepted from her.  These determinations, it should be clear, reflect the fact-finder’s assessment of the quality and weight of the evidence; although properly made by the undersigned in his role as the trier of fact, they are not affirmative findings concerning what occurred or did not occur during the relevant timeframe.[18] 

Tina Williams

     36.  Tina Williams (no relation to Denise) was Maloy’s aide at the County Commission for about six months, from July 15, 1999, through the end of that year.  Before coming to work for Maloy, she had worked as an accountant at the Florida Commission on Human Relations (“FCHR”), the state agency where persons who believe they have been discriminated against can file charges as a first step towards redress.

     37.  Tina Williams had been introduced to Maloy in late 1998 by a mutual acquaintance, Edward Dixon, who at the time was not only a Gadsden County Commissioner but also was associated with the FCHR in some way.  A few months later, Tina Williams had bumped into Maloy again at a local function, and he had asked her to apply for the position as his aide, which she later did.  After having received favorable recommendations from Commissioner Dixon and from Ron McElrath, a fraternity brother of Maloy’s who was then the Executive Director of the FCHR, Maloy had hired Tina Williams.

     38.  Tina Williams claims that Maloy sexually harassed her on numerous occasions, in various ways, starting before she was hired and continuing into September 1999.  She testified, for example, that he frequently put his hand on her lap or attempted to do so, hugged and attempted to kiss her, talked dirty on the telephone, and made suggestive comments, including, once when they were on an out-of-town business trip together, “this is so soft” in reference to the bed in her hotel room.  Tina Williams testified that the harassment stopped in September 1999, at which point, she asserted, Maloy became increasingly critical of her work and avoided her.  Their relationship, she testified, seemed to improve in November 1999, but then in December Maloy asked for her resignation, which she tendered.[19] 

39.  Maloy testified that he hired Tina Williams to be his aide with high expectations concerning her abilities but soon became disappointed in her failure, as he saw it, to measure up.  At hearing, Maloy asserted that Tina Williams had simply not worked out in the position for a number of reasons that need not be recounted here.  Suffice it to say that Maloy testified he asked Tina Williams to leave in December 1999 because he was generally dissatisfied with her performance on the job.

     40.  Maloy flatly denies that he ever said or did anything to Tina Williams that could be considered improper or untoward, including touching, kissing, hugging, shoulder-rubbing, suggestive comments, or like conduct.

     41.  The conflicts in the evidence concerning Tina Williams’s allegations of harassment clearly cannot be attributed to individuals’ unique perspectives or differences of opinion.  This is not a situation where two people have described the same historical event in different but reconcilable terms; instead, the testimony has produced two mutually exclusive versions of history.  Determining which of the protagonists is telling the purest truth is a difficult task made tougher by several factors.

     42.  First, there is no independent corroboration of either his testimony or her testimony by a witness having personal, firsthand knowledge of the facts.  This is a greater problem for the Commission, of course, because Maloy did not have the burden to prove his innocence. 

     43.  Absent independent corroboration, the conflicting testimony presents a classic “he said-she said” dilemma whose resolution, if one must choose between the competing narratives,[20] depends on whether “he” or “she” is deemed to be the more credible witness.  In this particular case, because the Commission bears the burden of proving its case by clear and convincing evidence, Tina Williams must be judged not just credible, but considerably more credible than Maloy to sustain a finding of guilt.[21]

     44.  Herein, then, lies the second factor (or interrelated pair of factors) that complicates the fact-finding function:  Neither participant’s testimony is inherently incredible;[22] and conversely, neither one’s testimony is inherently more credible than the other’s.  Tina Williams’s saga of sexual harassment cannot be rejected out of hand as a fabrication; it is obviously not fantastic.  Upon hearing her story, one does not think, “That could not possibly have happened.”  To the contrary, Tina Williams’s testimony is very believable.  And yet, Maloy’s testimony, too, is eminently believable.  He has not presented some half-baked alibi that tests credulity but rather has said exactly what one would expect an innocent man, falsely accused of sexual harassment, to say:  “I did not do it.”  What more, indeed, could he say, if in fact he were innocent?  There was, really, no way for Maloy affirmatively to disprove the particular allegations that Tina Williams made.

     45.  Third, having closely observed both Tina Williams and Maloy on the witness stand, the undersigned is unable to state with assurance, based on their respective demeanors, which of the two was probably telling the truth——or who was not.  Both appeared to be sincere in recounting what had happened (or not happened) as they recalled the events in question.  Neither appeared to the fact-finder to be lying.

46.  After carefully weighing all of the evidence with the foregoing factors in mind, the undersigned is not so convinced by either side’s proof as to conclude with confidence that any particular version of history advanced at hearing is highly verisimilar relative to the competing alternative.  To the point, the evidence at bottom does not produce in the mind of this fact-finder a firm belief or conviction, without hesitancy, as to the truth of Tina Williams’s allegations.[23] 

47.  Thus, the fact-finder is not convinced that Maloy intentionally used or attempted to use his official position to secure a benefit for himself through the alleged harassment of Tina Williams. 

48.  Based on a preponderance of the evidence, however, the undersigned finds that there was no understanding between Maloy and Tina Williams that Maloy’s votes, official actions, or judgment would be influenced by any thing of value that Maloy solicited or accepted from her——assuming he requested or received any such thing, which was not clearly and convincingly proved. 

Ultimate Factual Determinations[24]

     49.  The undersigned determines as a matter of ultimate fact that the Commission has failed to prove, by clear and convincing evidence, that Maloy violated either Section 112.313(2) or Section 112.313(6), Florida Statutes, as charged, in relation to his respective associations with Laurie Bradley, Ophelia Morris, Denise Williams, and Tina Williams.

     50.  It is therefore determined, as a matter of ultimate fact, that Maloy is not guilty of the ethics violations with which he has been charged.

CONCLUSIONS OF LAW

     51.  The Division of Administrative Hearings has personal and subject matter jurisdiction in this proceeding pursuant to Sections 120.569 and 120.57(1), Florida Statutes.

52.  The Commission has the burden of proving Maloy’s culpability by clear and convincing evidence.  Latham v. Florida Commission on Ethics, 694 So. 2d 83, 84 (Fla. 1st DCA 1997). 

53.  Regarding the standard of proof, in Slomowitz v. Walker, 429 So. 2d 797, 800 (Fla. 4th DCA 1983), the Court of Appeal, Fourth District, canvassed the cases to develop a “workable definition of clear and convincing evidence” and found that such a definition, of necessity, would need to contain “both qualitative and quantitative standards.”  The court held that

clear and convincing evidence requires that the evidence must be found to be credible; the facts to which the witnesses testify must be distinctly remembered; the testimony must be precise and explicit and the witnesses must be lacking confusion as to the facts in issue.  The 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.

 

Id.  The Florida Supreme Court later adopted the fourth district’s description of the clear and convincing evidence standard of proof.  Inquiry Concerning a Judge No. 93-62, 645 So. 2d 398, 404 (Fla. 1994).  The First District Court of Appeal also has followed the Slomowitz test, adding the interpretive comment that “[a]lthough this standard of proof may be met where the evidence is in conflict, . . . it seems to preclude evidence that is ambiguous.”  Westinghouse Elec. Corp., Inc. v. Shuler Bros., Inc., 590 So. 2d 986, 988 (Fla. 1st DCA 1991), rev. denied, 599 So. 2d 1279 (1992)(citation omitted).

     54.  As set forth in the Findings of Fact, the trier has determined as matter of ultimate fact that the Commission failed to establish, by the requisite level of proof, that Maloy committed the ethics violations of which he stands accused.  These factual findings, however, were necessarily informed by the administrative law judge’s application of the law.  A brief discussion of the pertinent legal principles, therefore, will illuminate the dispositive findings of ultimate fact.

     55.  Maloy was charged with violating Section 112.313(2) and Section 112.313(6), Florida Statutes.  The former proscribes the solicitation or acceptance of gifts, and the latter forbids the misuse of one’s public position.  While a handful of officials has been found guilty over the last quarter century or so under Section 112.313(6) for conduct said to constitute sexual harassment, no public official has ever been convicted of violating Section 112.313(2) pursuant to similar allegations.  Therefore, Section 112.313(6) will be discussed first.

     56.  Section 112.313(6), Florida Statutes, provides as follows:

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 s. 104.31.

 

(Emphasis added.) 
     57.  The adverb “corruptly,” which crucially modifies the verb “use,” is separately defined in Section 112.313(9), Florida statutes, to mean

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 or her public duties.

 

The language of these statutes will be revisited momentarily.

     58.  But first, it is interesting to observe that the statutes just quoted do not expressly mention “sexual harassment.”  Nor has the Commission, by rule, defined the term “sexual harassment” for purposes of Chapter 112, Florida Statutes.  Nor has it prescribed any generally applicable standards of ethical conduct pertaining to sexual harassment, or otherwise interpreted the Ethics Code so as to describe the extent of its reach into conduct amounting to sexual harassment.  Instead, the Commission has opted, when dealing with allegations of sexual harassment, to decide on a case-by-case basis whether the charged party’s behavior violated of the plain language Section 112.313(6). 

     59.  This approach has resulted in the issuance of at least seven final orders by the Commission wherein men found to have sexually harassed women (usually subordinates) were adjudicated guilty of violating Section 112.313(6).[25]  These orders are useful, not as authoritative sources of law, but because persons whose substantial interests are determined by an agency are entitled to expect consistent results based upon similar facts as expressed in discoverable agency orders.  See Amos v. Department of Health and Rehabilitative Services, 444 So. 2d 43, 47 (Fla. 1st DCA 1983).  That said, the Commission’s opinions must be read with care, for a number of reasons.

60.  First, administrative orders, including final agency orders, are not binding precedent.  See Mercedes Lighting and Elec. Supply, Inc. v. Dept. of General Services, 560 So. 2d 272, 278 (Fla. 1st DCA 1990)(“The doctrine of stare decisis is primarily applicable only to judicial decisions and is not generally applicable to decisions of administrative bodies.”).  Second, to glean abstract, generally applicable rules of decision from the Commission’s previous opinions would undermine, to some extent, the rulemaking procedures set forth in Section 120.54, Florida Statutes, which procedures the Commission has not used to adopt statements of general applicability.[26]  Third, case-specific decisions should ordinarily be treated as such——i.e. as decisions limited to the particular facts and circumstances at hand.  Fourth, most of the Commission’s opinions——including Lancaster, Garner, and Bruner, its seminal orders of the early 1980’s——were issued before 1997, when the First DCA announced, in Latham, supra, that the Commission’s burden is to prove ethics violations by clear and convincing evidence.  It is conceivable that at least some of the pre-Latham cases would have turned out differently if decided under the more stringent standard of proof applicable today.      

     61.  Having pointed out these limitations, it is acknowledged and understood that at least two district courts of appeal, the first and the second, have accepted the Commission’s view that sexual harassment can fall within Section 112.313(6).[27]  In so doing, these courts have established the following principles.  First, the Commission has jurisdiction over ethics charges involving sexual harassment, even though such conduct is proscribed by other laws, namely the Florida Human Rights Act, Sections 760.01-760.11 and 509.092, Florida Statutes, and Title VII of the Civil Rights Act, 42 U.S.C. § 2000e, et seq., which in turn are administered by other agencies, i.e. the FCHR and the Equal Employment Opportunity Commission, respectively.  See Garner v. Commission on Ethics, 415 So. 2d 67, 69 (Fla. 1st DCA 1982), rev. denied, 424 So. 2d 761 (1983)(“Garner I”).  Second, Section 112.313(6) is not unconstitutionally vague as applied to allegations involving sexual harassment.  See Garner v. Commission on Ethics, 439 so. 2d 894, 895 (Fla. 2d DCA 1983), pet. rev. denied, 449 So. 2d 264 (1984)(“Garner II”).  Third, “sexual favors” can constitute a “benefit” for purposes of Section 112.313(6), Florida Statutes.  Id.

     62.  While giving a green light to ethics prosecutions such as this one, these decisions nevertheless leave some important questions unanswered.  Two of these issues——which are opposing sides of the same coin, really——are worthy of note in this discussion.

63.  To begin, there is the previously mentioned lack of a statutory or rule-based definition of “sexual harassment” for the ethics context, which the courts have not addressed.  The undersigned recognizes that neither the legislature nor the Commission——or the courts for that matter——can be expected to define all of the specific instances that fall within Section 112.313(6).  See Tenney v. State Commission on Ethics, 395 So. 2d 1244, 1246 (Fla. 2d DCA 1981).  But sexual harassment is a predictable problem for which standards can be established.  In fact, one of the complicating factors in an ethics case such as this is that there is a huge body of law on the subject of sexual harassment (arising under Title VII) that might provide some guidance, yet whose relevance is arguable.  The questions arise:  Does it matter whether the respondent’s conduct would have been actionable under Title VII?  If liability could not have been established under Title VII, can an ethics violation still be found?  If, as the Commission insists, the answer to the previous question is “yes”——which would mean that there is a difference between “unlawful” sexual harassment and “unethical” sexual harassment——then how are officials to know, without confusion, what conduct is proscribed, when there are no ethics-specific standards to warn them?

64.  It is not a satisfactory response to this problem to assert that sexual harassment, as an independent wrong and especially as defined in the civil rights context, need not and should not even be considered in adjudicating an ethics case under Section 112.313(6).  For in reality, sexual harassment is a concept that has entered the legal and popular cultures.  Therefore, it is practically impossible to avoid conceiving of “sexual harassment” (however one defines the term) as a sui generis ethics violation that exists apart from Section 112.313(6).  The unstated syllogism is:  All sexual harassment is unethical.  The respondent sexually harassed a subordinate.  Therefore the respondent acted unethically and should be punished.   

65.  The effect of this logic is to substitute “sexual harassment” (however defined) in place of the actual language of Section 112.313(6).  The danger is that the decision-maker, having determined that the respondent’s conduct satisfies his or her definition of sexual harassment, will then have little use for the statute itself, the conclusion of guilt following inexorably from the finding of sexual harassment.

     66.  This is not merely a theoretical threat.  It was realized in, for example, this “finding,” which was made in an early and influential ethics case:

50.  The actions of the Respondent, as set forth above, fall within the definition of sexual harassment as that term is used by psychologists who are experts in this field.  Research done in this area indicates that sexual harassment can occur in the work place and outside the workplace, at meetings or events attended by the employer and the employee.

 

In re Ambrose Garner, 5 F.A.L.R. 105-A, 109-A (Ethics Comm’n Oct. 28, 1982).  When, in the absence of explicit legal standards, the decision-maker is permitted to resort to the unidentified “research” of unnamed “experts” whose definition of sexual harassment, while dispositive, is not even quoted, then he or she is essentially free to decide ethics cases involving sexual harassment according to his or her personal preferences or prejudices.  Public officials, however, should be disciplined under Section 112.313(6), if at all, according to neutral principles enacted by the legislature, promulgated by the Commission in the exercise of delegated legislative authority, or formulated by the courts——not on whatever definition of “sexual harassment” the administrative law judge or other agency decision-maker might read in a psychology textbook.

     67.  The desirability of and need for standards are not obviated by characterizing sexual harassment (or, more precisely, the gratification presumably derived therefrom) as merely one of the infinite number of benefits, no different from any other, to which end an unethical official might corruptly put his public position.[28]  This is because sexually oriented behavior, broadly speaking, is a natural——indeed necessary——part of the human experience, for public officials and private citizens alike.  No one would seriously suggest that it is always unethical for a public official to seek sexual gratification in the way that it would always be unethical for, say, a building inspector to issue his friend a permit for a project that fails to satisfy the applicable codes.  To be deserving of censure, most would agree, there must be something “bad” about the official’s sexually oriented behavior——hence the utility of a judgmental term such as “sexual harassment.”

     68.  However, to classify certain sexually oriented behavior as “sexual harassment” meriting disapprobation and punishment necessarily entails the making of moral distinctions according to criteria that must come from somewhere.  So, the unavoidable fact is that at some point in deciding whether an unethical act was committed in violation of Section 112.313(6), Florida Statutes, a line inevitably must be drawn between acceptable sexually oriented behavior (perhaps including intersexual flirtation in the workplace, which is not prohibited under Title VII[29]) and unacceptable sexually oriented behavior.  The undersigned doubts that the sometimes-blurry boundary between one category and the other can consistently and fairly be made out without standards to guide and discipline the decision-maker. 

69.  The second important issue that deserves greater attention than it appears to have gotten is whether officeholders have adequate notice of the sexually or romantically oriented conduct that violates Section 112.313(6), Florida Statutes.  This is the flip side of the issue just examined, for as the lack of a definition of sexual harassment, or other standards for evaluating sexually oriented conduct, leaves decision-makers without guidance, so too does it leave public officials in the dark about exactly what is prohibited.

70.  The Commission argues that a respondent’s conduct need not be found to meet the legal definition of sexual harassment, as developed under Title VII, for a violation of Section 112.313(6) to be established.  Yet, while this position is logically coherent, it only tells what the relevant standards of conduct, at least to some extent, are not.  To say, as the Commission does, that Title VII does not supply all of the relevant standards fails affirmatively to define for officeholders the conduct that runs afoul of Section 112.313(6), Florida Statutes.[30]

     71.  The Commission further argues that Maloy was on notice of the proscribed conduct because he received sexual harassment training at work, during which he learned about prohibitions (presumably derived from Title VII) that were “even broader” than those in the Ethics Code.[31]  One ready response to this argument is that public employers are not charged with prescribing, or authorized to promulgate, the standards of ethical conduct for purposes of Chapter 112.  But, at any rate, the Commission’s argument actually serves to underscore the notice problem. 

72.  Accepting the Commission’s premise, Maloy was on notice of a broad set of Title VII-prohibited behaviors.  Contained within this set, the Commission intimates, was a subset of Section 112.313(6)-proscribed conduct.  There is no evidence, however, that the parameters of this subset were explained to Maloy as part of the sexual harassment training he received at work.  Further, the Commission’s argument fails to explain how Maloy would have been placed on notice, through his employer-provided sexual harassment training, of the separate and unique set of behaviors comprising all acts permissible under Title VII but prohibited under Section 112.313(6).  Finally, since the Commission takes the position that Title VII standards are largely irrelevant in assessing culpability under the Ethics Code, it is hard to see why public officials would equate notice of Title VII-derived standards with notice regarding conduct that would violate the Ethics Code. 

     73.  The foregoing considerations, while not in and of themselves outcome determinative in this case, counsel in favor of a rigorous application of the statutory text.  With this thought in mind, attention will now be focused on the statutory element of intent.

     74.  Section 112.313(6) requires the Commission to prove that the official corruptly used his public position to obtain a special benefit.  The term “corruptly,” as we have seen, is defined to mean “done with a wrongful intent and for the purpose of obtaining” a personal or private benefit.  See Section 112.312(9), Florida Statutes.

      75.  As these statutes make plain, then, the use of public position, to be unethical, must be done with wrongful intent and for the purpose——that is, with the goal in mind——of obtaining some personal or private benefit.  The benefit must be the official’s conscious object, and his public position the intended means of attaining that object.  Thus, while it is a necessary condition of culpability that the official’s purpose be to secure some personal benefit, this alone is not sufficient to constitute an ethics violation.  He must also intentionally use his office as the means to the desired end.[32]   

     76.  As applied to the instant case, the statutes require the Commission to prove that Maloy either consciously set up, as an end to be attained, the sexual harassment of one or more of his alleged victims, or deliberately set out to obtain sexual favors from any of them. 

      77.  In addition, the Commission must prove that Maloy intentionally used his official positions, as opposed (or, at a minimum, in addition) to other assets,[33] to obtain these benefits. 

     78.  As set forth in the Findings of Fact above, it is this latter aspect of the necessary intent, in particular, that the Commission failed to establish clearly and convincingly.  Accordingly, an ultimate determination of not guilty must be made as to the charge brought under Section 112.313(6).

     79.  Maloy was also accused of violating Section 112.313(2), Florida Statutes.  This statute provides as follows:

SOLICITATION OR ACCEPTANCE OF GIFTS.–No public officer, employee of an agency, local government attorney, or 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.

 

(Emphasis added.)

     80.  It is clear that the noun “understanding” as used in Section 112.313(2) was intended to denote “a mutual agreement not formally entered into but in some degree binding on each side.”  See Merriam-Webster OnLine Dictionary.  The statute thus requires that there be a meeting of the minds between the public officer who receives (or is requesting) the gift and the person who confers (or is being asked for) the gift pursuant to which each understands that the gift is being given (or solicited) for the purpose of influencing some official action of the recipient.

     81.  In this case, the Commission failed clearly and convincingly to prove that such a meeting of the minds occurred between Maloy and any of the female accusers.  At best the evidence shows that some or all of the women involved thought Maloy would take some tangible employment action if they spurned, or gave in to, his alleged advances.  The evidence does not convince the undersigned that Maloy thought any of the women tolerated, or responded favorably to, his overtures based upon an understanding that his vote, official action, or judgment would be influenced thereby.  Cf. Castillo v. State, 835 So. 2d 306, 309 (Fla. 3d DCA 2002)(evidence was insufficient to convict police officer on criminal charge of accepting unlawful compensation where, in the absence of any spoken understanding, the officer could simply have thought that the driver voluntarily had sex with him, rather than——as she believed——to avoid being arrested for DUI).  Accordingly, the alleged violation is not established.

RECOMMENDATION

The fact-finder having determined that the evidence fails clearly and convincingly to establish a factual basis for culpability on any ground charged, it is RECOMMENDED that the Commission enter a final order declaring Maloy not guilty of violating Sections 112.313(2) and 112.313(6), Florida Statutes.

DONE AND ENTERED this 25th day of April, 2003, in Tallahassee, Leon County, Florida.

___________________________________

JOHN G. VAN LANINGHAM

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 25th day of April, 2003.

 

 

ENDNOTES

 

 

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.