recommended ORDER
Pursuant to notice, the Division of Administrative Hearings, by its duly-designated Administrative Law Judge,
Jeff B. Clark, held a final administrative hearing in this case on November 4, 2003, in Tallahassee, Florida.
APPEARANCES
For Petitioner: James H. Peterson, III, Esquire
Office of the Attorney General
The Capitol, Plaza Level 01
Tallahassee, Florida 32399-1050
For Respondent: Bruce A. Minnick, Esquire
Post Office Box 15588
Tallahassee, Florida 32317-5588
STATEMENT OF THE ISSUES
The issues for determination are:
(1) Whether Respondent, John L. Carter, violated Section 112.3145, Florida Statutes (1995), by failing to file a CE
Form 1, Statement of Financial Interests, for calendar year 1996.
(2) Whether Respondent violated Section 112.3145, Florida Statutes (1995), by failing to file a CE Form 1, Statement of Financial Interests, for calendar year 1997.
(3) Whether Respondent violated Section 112.3145, Florida Statutes (1995), by failing to file a CE Form 1, Statement of Financial Interests, for calendar year 1998.
PRELIMINARY STATEMENT
On February 13, 2002, Eugene Danaher, a resident of Tallahassee, Florida, filed a Complaint with the Florida Commission on Ethics alleging that John L. Carter, Director of TalTran, City of Tallahassee, failed to file financial disclosures as required by law for 1996, 1997, 1998, and 1999.
On March 11, 2002, Bonnie J. Williams, Executive Director, Florida Commission on Ethics, filed a Declaration of Investigative Jurisdiction and Order to Investigate in response to the Complaint. On July 3, 2002, in response to the investigation of the alleged charges, the Advocate for the Florida Commission on Ethics filed his Advocate's Recommendation that there was probable cause to believe John L. Carter had violated Florida law for his failure to file financial disclosure forms for calendar years 1996, 1997, and 1998.
Based on the Advocate's Recommendation, the Florida Commission on Ethics found that there was probable cause to believe that John L. Carter had violated Florida law for his failure to file financial disclosure forms for calendar years 1996, 1997, and 1998 and entered an Order of Probable Cause on the charges.
On August 13, 2003, the Florida Commission on Ethics forwarded the case to the Division of Administrative Hearings requesting the assignment of an Administrative Law Judge to hold a public hearing and prepare a recommended order.
On August 18, 2003, an Initial Order was sent to both parties. On September 8, 2003, the case was scheduled for final hearing on November 4, 2003, in Tallahassee, Florida. The parties submitted pre-hearing stipulations which contain agreed facts which are incorporated in the Findings of Fact.
The final hearing was conducted as scheduled on November 4, 2003. At the hearing, the Advocate for the Florida Commission on Ethics ("Advocate") presented two witnesses: Kathy Davis, Manager for Administrative Services and Procurement, City of Tallahassee, and John L. Carter. The Advocate offered
17 exhibits that were accepted into evidence and marked as Advocate's Exhibits 1 through 17. Mr. Carter, who will hereinafter be referred to as "Respondent," presented three witnesses: Robert Chamberlain, Assistant Director-TalTran; Donna Peacock, Administrative Assistant-TalTran; and Vicki Hall, Accounting Clerk III-City of Tallahassee. Respondent presented one exhibit which was received into evidence and marked as Respondent's Exhibit 5. During the final hearing, the parties stipulated to the admissibility of three composite exhibits containing minutes of Tallahassee City Council meetings, City of Tallahassee policies and amendments to those policies, and City Council meeting agendas which were submitted after the close of testimony. These exhibits are marked Joint Exhibits 1
through 3.
Official notice was taken of the following: Sections 112.3145 and 112.312(20), Florida Statutes (1995, 1997 and 2002); 1999 Florida Legislative Regular Session, Chapter 99-399, Section 17, revisions to Section 112.3145, Florida Statutes; City of Tallahassee Policy Number 116 CP, Document Signature Policy, as adopted on November 24, 1992, revised on July 7, 1993, and effective through July 12, 2000; Tallahassee City Commission Agenda Item dated October 8, 1997, Purchasing Policy Revisions; Tallahassee City Commission Minutes related to Purchasing Policy Revisions on October 8, 1997; and Section 1.2.7, Using Department Responsibilities, City of Tallahassee Administrative Policies & Procedures Manual, reflecting revisions approved by the City Commission on October 8, 1997.
By agreement of the parties, which was ratified by the undersigned, the parties had 30 days from the filing of the Transcript of Proceedings to submit proposed recommended orders. The Transcript of Proceedings was filed on November 24, 2003.
On December 18, 2003, the parties jointly moved to extend the time for filing proposed recommended orders; the time for filing proposed recommended orders was extended to February 4, 2004.
Respondent requested additional extensions of time for filing proposed recommended orders; proposed recommended orders were due on February 13, 2004. Both parties timely filed Proposed Recommended Orders.
FINDINGS OF FACT
1. Respondent, John L. Carter, is the Executive Director of TalTran, the City of Tallahassee's transit system. He has served in that position since 1973. As such, he is a "department director" within the City of Tallahassee's organizational structure.
2. Effective July 3, 1993, the City of Tallahassee Document Signature Policy gave "the Director of the appropriate department or his/her designee" the right to execute contracts and leases which were for less than $10,000 in fair market value. This authority continued for all times relevant to the alleged violations in this case.
3. On May 5, 1993, Respondent signed an Assumption of Purchasing Authority and Responsibility (Up to $10,000). This particular form allowed Respondent to indicate (by circling) his choice whether he would ("I WILL") or would not ("I WILL NOT") "assume total authority and responsibility for all purchasing transactions within my department up to $10,000." In the event Respondent had chosen not to assume the authority, this additional phrase was included: "and will continue to utilize the services of the Purchasing Department." Respondent signed the form, but he did not make an election as to whether or not he would assume the authority.
4. On the same date, May 5, 1993, Respondent sent the Director of General Services a memo which stated, in part:
I have signed the attached Assumption of Authority form for purchases up to $10,000; however, it appears that assumption is absolute and not permissive. It was my understanding from discussion at the City Manager's staff meeting the policy would provide this as an option when the purchase can be handled by the Department. When the purchase was more complex and assistance was needed, Purchasing would secure the product or service required.
5. On October 7, 1997, the City of Tallahassee Administrative Policies & Procedures Manual made departments responsible for "[P]rocessing purchases up to $10,000 utilizing Departmental Purchase Order forms."
6. Respondent suggests that he was unaware that he had the right to execute contracts and leases in amounts up to $10,000 from and after July 3, 1993; that, as a practical matter, because of City of Tallahassee procedures, a central purchasing agent actually made the purchases; or that because of problems with a purchasing system that relied on computers, he was not able to make such purchases.
7. As a department director of the City of Tallahassee, Respondent had the authority to enter into a contract or lease committing public funds exceeding $1,000 during the calendar years 1996, 1997, and 1998.
8. The City of Tallahassee's Administrative Policies & Procedures Manual contemplates several different types of purchase orders, including "restricted," "departmental," and "regular." Respondent, or his authorized subordinates, could issue department purchase orders for amounts up to $10,000 without additional approval during the calendar years 1996, 1997, and 1998.
9. Even though Respondent may have had the general authority to issue purchase orders for amounts up to $10,000 in 1996 and part of 1997, the documents (Assumption of Purchasing Authority and Responsibility (Up to $10,000) and memo) referred to in paragraphs 3 and 4, supra, suggest that he may not have assumed that authority which appears to have been an option accorded department heads until October 7, 1997.
10. Prior to 1999, the statutory threshold purchasing authority for requiring filing of financial disclosure forms (CE Form 1, Statement of Financial Interests) was $1,000.
11. In 1999, the statutory threshold purchasing authority for requiring filing of financial disclosure forms (CE Form 1, Statement of Financial Interests) was raised to $15,000.
12. Respondent was notified of the filing deadline for CE Form 1, Statement of Financial Interests, for calendar year 1996.
13. Respondent failed to file CE Form 1, Statement of Financial Interests, for calendar year 1996.
14. Respondent was notified of the filing deadline for CE Form 1, Statement of Financial Interests, for calendar year 1997.
15. Respondent failed to file a CE Form 1, Statement of Financial Interests, for calendar year 1997.
16. Respondent was notified of the filing deadline for CE Form 1, Statement of Financial Interests, for calendar year 1998.
17. Respondent failed to file a CE Form 1, Statement of Financial Interests, for calendar year 1998.
CONCLUSIONS OF LAW
18. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding. § 120.57(1), Fla. Stat. (2003).
19. Section 112.322, Florida Statutes (2000), and Florida Administrative Code Rule 34-5.0015 authorize the Florida Commission on Ethics to conduct investigations and to make public reports on complaints concerning violations of Part III, Chapter 112, Florida Statutes (the Code of Ethics for Public Officers and Employees).
20. 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 v. Department of Health and Rehabilitative Services, 348 So. 2d 349 (Fla. 1st DCA 1977). The standard of proof in a proceeding in which the Commission seeks penalties under Subsection 112.3145, Florida Statutes, is "clear and convincing" evidence. Latham v. Florida Commission on Ethics, 694 So. 2d 83 (Fla. 1st DCA 1997). Therefore, the Advocate, on behalf of the Commission, has the burden of establishing by clear and convincing evidence the elements of Respondent's alleged violations.
21. It is alleged that Respondent failed to file CE
Form 1, Statement of Financial Interests, for calendar years 1996, 1997, and 1998. Therefore, the applicable law, Subsection 112.3145(2)(b), Florida Statutes (1995), provides as follows:
Each state or local officer and each specified state employee shall file a statement of financial interests no later than July 1 of each year. Each state or local officer who is appointed and each specified state employee who is employed shall file a statement of financial interests within 30 days from the date of appointment or, in the case of a specified state employee, from the date on which the employment begins, except that any person whose appointment is subject to confirmation by the Senate shall file prior to confirmation hearings or within 30 days from the date of appointment, whichever comes first.
22. Subsection 112.3145(1)(a)(3), Florida Statutes (1995), defines "local officer," in pertinent part, as:
Any person holding one or more of the following positions: . . . or purchasing agent having the authority to make any purchase exceeding $1,000 for any political subdivision of the state or any entity thereof.
23. Subsection 112.312(20), Florida Statutes (1995), states:
"Purchasing agent" means a public officer or employee having the authority to commit the expenditure of public funds through a contract for, or the purchase of, any goods, services, or interest in real property for an agency, as opposed to the authority to request or requisition a contract or purchase by another person.
24. The Advocate has proved clearly and convincingly that Respondent had the authority to commit the expenditure of public funds in excess of the statutory minimum for reporting ($1,000) during the calendar years 1996, 1997, and 1998.
25. The Advocate has proved clearly and convincingly that Respondent had the authority to issue purchase orders in excess of the statutory minimum of the statutory minimum for reporting ($1,000) during the calendar years 1997 and 1998.
26. Respondent was a "purchasing agent" as defined in Subsection 112.312(20), Florida Statutes (1995), and a "local officer" as defined in Subsection 112.3145(1)(a)(3), Florida Statutes (1995), and, therefore, was required to submit CE Form 1, Statement of Financial Interests, for calendar years 1996, 1997, and 1998.
RECOMMENDATION
Based on the foregoing Findings of Fact and Conclusions of Law, it is
RECOMMENDED that the Florida Commission on Ethics enter a final order finding that John L. Carter failed to file CE
Form 1, Statement of Financial Interests, for calendar years 1996, 1997 and 1998, as required by law and assessing a civil penalty of $1,500 ($500 per violation).
DONE AND ENTERED this 2nd day of March, 2004, in Tallahassee, Leon County, Florida.
JEFF
B. CLARK
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 2nd day of March, 2004.
COPIES FURNISHED:
Bruce A. Minnick, Esquire
Post Office Box 15588
Tallahassee, Florida 32317-5588
James H. Peterson, III, Esquire
Office of the Attorney General
The Capitol, Plaza Level 01
Tallahassee, Florida 32399-1050
Kaye Starling, Agency Clerk
Commission on Ethics
2822 Remington Green Circle, Suite 101
Post Office Drawer 15709
Tallahassee, Florida 32317-5709
Philip C. Claypool, General Counsel
Commission on Ethics
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.