RECOMMENDED ORDER
After notice, a final hearing was held on October 17, 2005, in Tallahassee, and on October 21 and 24, 2005, in Live Oak, Florida, before Harry L. Hooper, Administrative Law Judge with the Division of Administrative Hearings.
APPEARANCES
For Advocate: Linzie F. Bogan, Esquire
Advocate for the Florida Commission
on Ethics
Office of the Attorney General
The Capitol, Suite Plaza-01
Tallahassee, Florida 32399-1050
For Respondent: George W. Blow, III, Esquire
Law Offices of George W. Blow, III
106 White Avenue, Suite C
Live Oak, Florida 32064
STATEMENT OF THE ISSUE
The issue is whether Respondent violated Section 112.313(6), Florida Statutes, during January through March 2003.
PRELIMINARY STATEMENT
In a letter to the Florida
Commission on Ethics (Commission) filed February 26, 2003, Live Oak Building
Official Michael Christensen asserted that Live Oak Councilman
George Blake was making a concerted effort to intimidate him into not enforcing
the Florida Building Code. On March 20, 2003, a Determination of Investigative
Jurisdiction and Order to Investigate signed by Bonnie J. Williams, Executive
Director, was filed with the Commission. Subsequent to investigation, the
Commission filed an Order Finding Probable Cause on April 28, 2004.
Subsequent to a demand for hearing, the case was filed with the Division of Administrative Hearings on February 16, 2005. The matter was set for hearing on May 12 and 13, 2005. Pursuant to a Motion to Continue Final Hearing filed by the Respondent, the matter was continued until September 20, 2005. Respondent again filed a Motion to Continue Final Hearing. This was granted, and the hearing was rescheduled for October 17 and 18, 2005, in Tallahassee, Florida.
The hearing was held on October 17, 2005, in Tallahassee, Florida, and October 21 and 24, 2005, in Live Oak, Florida.
At the hearing, the Advocate presented the testimony of four witnesses and had 16 exhibits admitted into evidence. Respondent presented the testimony of six witnesses and had one exhibit admitted into evidence. A four-volume Transcript was filed on November 23, 2005. After the hearing, the Advocate and Respondent jointly moved to extend the time to submit proposed recommended orders until January 13, 2006. The motion was granted. The Advocate and Respondent filed Proposed Findings of Fact and Conclusions of Law on January 13, 2006.
References to statutes are to Florida Statutes (2002) unless otherwise noted.
FINDINGS OF FACT
1. Pursuant to Article II, Section 8, Florida Constitution, and Section 112.320, the Commission is empowered to serve as the guardian of the standards of conduct for the officers and employees of the state. Pursuant to Sections 112.324 and 112.317, the Commission is empowered to conduct investigations and to issue a Final Order and Public Report recommending penalties for violations of the Code of Ethics for Public Officers and Employees (Code of Ethics).
2. Respondent George Blake (Mr. Blake) is subject to the Code of Ethics. Mr. Blake, at the time of the hearing, had served continuously as a town councilman of the City of Live Oak, Florida, for approximately 15 years.
3. The City of Live Oak is a small North Florida town governed by a five-member City Council having one member designated by the Council as President. It has an elected Mayor who has no vote in Council matters. The Council governs Live Oak through a City Administrator. The Council has the authority to hire and discharge city employees although it generally defers to the City Administrator to accomplish those duties.
4. The City Council of Live Oak, like governing bodies in many small towns, is more intimately involved in the day-to-day operations of the municipality than is the case in a large city.
5. Michael Christensen (Mr. Christensen) resides in Umatilla, Florida, and resided there at all times pertinent to this case. In January 2003 he held a Building Code Administrator's license issued by the State of Florida and was a registered architect. He also held a general contractor's license. He had never before been a municipal employee at any
municipality.
6. Mr. Christensen was hired
as the Building Official for the City of Live Oak by Myron Holmes, the Live Oak
City Administrator. Mr. Holmes believed that Mr. Christensen was highly
qualified for the job. Mr. Christensen began work on January 13, 2003. Willard
Hewett, the Public Works Director for Live Oak, was Mr. Christensen's immediate
supervisor.
Mr. Christensen was hired pursuant to an agreement that he would work Monday
through Thursday each week.
7. According to the City Personnel Policy and Procedure Manual, all employees except police and fire personnel must work five days per week, eight hours per day. Only the Council could approve a variance and in the case of Mr. Christensen, the Council was never asked to approve this deviation from the Manual.
8. Prior to Mr. Holmes'
decision to hire him,
Mr. Christensen met with the Council. The Council, including Mr. Blake, was
aware that a condition of employment was that he be allowed to work a four-day
week. Mr. Blake did not object to the four-day work week schedule that was
proposed. The City Counsel made a unanimous recommendation to Mr. Holmes that
Mr. Christensen be hired.
9. A four-day work week was critical to Mr. Christensen's employment with the City until his house in Umatilla was sold. He was also finishing up some work in Umatilla. It is 150 miles from Umatilla to Live Oak.
10. On January 14, 2003, Mr. Christensen began
the review of plans submitted by Julie Ulmer for a house to be built for Mr.
Blake. Ms. Ulmer is Mr. Blake's daughter. Mr. Christensen noted 26 items on
the plans which did not comply with the Florida Building Code (FBC). The
builder, Jeremy Ulmer,
Ms. Ulmer's husband, resubmitted the plans. Mr. Christensen found additional
deficiencies on the resubmitted plans.
11. Mr. Christensen and Mr. Ulmer had a
discussion with regard to the deficiencies in Mr. Christensen's office on
February 4, 2003. Mr. Ulmer exhibited hostility toward
Mr. Christensen.
12. Mr. Christensen met twice with Gary Gill, the Professional Engineer who had "sealed" the plans. Eventually Mr. Christensen determined that, after modification, the plans met the FBC and, on February 7, 2003, he issued a building permit for the construction of the Blake residence. He also became aware that Mr. Blake was unhappy with him.
13. During the time that Mr. Christensen served as Building Official he conducted plan reviews on a total of ten plans and, at least initially, rejected all ten.
14. On Tuesday, February 11, 2003, at the
regularly scheduled Council meeting, Mr. Blake attempted to cause the Council
to consider Mr. Christensen's performance as Building Official. It is unusual
for the performance of a city employee to be considered during a Council meeting,
although not without precedent. Don Boyette, the president of the Council,
recessed the meeting to February 18, 2003, when the matter of
Mr. Christensen was to be discussed further.
15. By Thursday, February 13, 2003, City Administrator
Holmes was aware that Mr. Blake was angry with Mr. Christensen and believed he had embarked on a course of action designed to visit harm upon Mr. Christensen's employment status. City Administrator Holmes thought the matter had become, "extremely heated." At some point, Mr. Blake had stated to Mr. Holmes that the plan changes to his house had cost him a lot of money.
16. Also on February 13,
2003, Mr. Blake attended a meeting of the Builders' Association of Suwannee
County at the Farm Bureau Building and individual complaints regarding
Mr. Christensen were made to him by Sam Carter, Lynn Fletcher, Dan Murray, and Harvey
Carroll who are all involved in the construction business. On one other occasion
he received a complaint from J.D. Brown who is in the construction business.
17. The complaints against Mr. Christensen centered primarily around his attitude, and these complaints were legitimate. His ability to deal with builders in Live Oak was hampered by his imperious attitude. The prior building official was considered strict, like Mr. Christensen, but he was able to obtain compliance without greatly irritating people.
18. This propensity to irritate people was observed by Chad Croft, the Live Oak Fire Chief. Chief Croft had for many years accomplished his Life Safety inspections on commercial buildings in company with the Live Oak Building Official. This was done as a matter of convenience to the person whose business was being inspected. He continued this practice when
Mr. Christensen became the Building Official.
However, after a few of these inspections he discontinued the practice because he
objected to being present during Mr. Christensen's unpleasant interactions with
contractors. Mr. Croft opined that
Mr. Christensen lacked people skills and was harsh with people.
19. On Friday, February 14,
2003, Mr. Christensen entered upon the property on which Mr. Blake's house was
being constructed for the purpose of inspecting the footer, which is part of
the foundation. He asked Pat Sura, the Suwannee County Building Official, to
accompany him because he believed that
Mr. Blake was seeking retribution because of the changes in the building plans.
Mr. Sura had been a building official for many years and was more experienced
than Mr. Christensen.
20. Mr. Christensen and Mr.
Sura both found the footer forms constructed on the Blake property to be
deficient because of root obstruction. Mr. Christensen decreed that the roots
would have to be removed before concrete could be poured.
Mr. Sura thought that it would be permissible for the footer to be poured and
the roots removed subsequently. Because Mr. Sura was present in an advisory
capacity, it was Mr. Christensen's opinion that prevailed, based on FBC 23-1.2,
which clearly says that vegetation must be removed before the footer may be
poured.
21. Mr. Christensen returned to his office to
obtain his copy of the FBC and then returned to the building site. When he
returned he found that Mr. Ulmer had come to the site.
Mr. Ulmer was unhappy when he learned he could not pour the footers absent
additional work. Mr. Ulmer said to him, "If you don't pass my inspection,
there will be consequences." Ultimately, Mr. Hewitt authorized the
contractor to pour concrete into the footer as scheduled.
22. On Monday, February 17, 2003, Mr.
Christensen met with City Attorney Ernie Sellers at his office. Also attending
were Willard Hewett and Myron Holmes. Mr. Christensen stated that he believed
Mr. Blake was trying to intimidate him. Although
Mr. Blake had never spoken to Mr. Christensen about this matter, Mr.
Christensen drafted a letter to the State Attorney requesting prosecution and a
letter of guidance to the Council. He did not mail this letter after having
been advised that the State Attorney was the incorrect venue for his complaint.
23. On Tuesday, February 18, 2003, at the Council meeting which was a continuation of the February 11, 2003, meeting, referred to as a "recessed meeting," several people testified. Julie Ulmer, Tom Smith, who is an architect, and Sam Carter who is a draftsman, all complained about Mr. Christensen's performance.
24. Prior to this time only
a few people in the construction business, other than the Ulmers, had
complained about Mr. Christensen to Mr. Hewitt. The complaints addressed to
Mr. Hewitt were routine disagreements between contractors and Mr. Christensen,
and Mr. Hewitt was concerned with
Mr. Christensen's absence one day a week. Mr. Christensen solicited and
obtained a letter of recommendation from
Jimmy Worth who was building a large building that was being inspected by Mr.
Christenson on a routine basis. This letter was presented to the Council
during the "recessed meeting."
25. Mr. Christensen spoke at the meeting and
he and
Mr. Blake had a heated exchange of words. During the meeting Mr. Blake stated
that he did not believe that Mr. Christensen could work with people and that if
he could get two more votes he would have Mr. Christensen fired. Despite this,
both
Mr. Hewett, Mr. Christensen's immediate supervisor, and
Mr. Holmes, the City Administrator, remained satisfied with
Mr. Christensen's performance.
26. The day after the "recessed meeting," on February 19, 2003, Mr. Blake told City Administrator Holmes that he wanted Mr. Christensen to work a five-day work week, in accordance with the City Personnel Policy and Procedure Manual.
27. Mr. Blake, having failed to have Mr. Christensen terminated by the Council, wrote the County Coordinator on February 21, 2003, and requested that Suwannee County building officials inspect the construction of his home pursuant to an existing inter-local agreement. This resulted in the county building official doing the inspection. All citizens of Live Oak are permitted to request that the Suwannee County building department inspect their construction and such requests are routinely granted.
28. By February 21, 2003, Mr. Christensen had already drafted his ethics complaint.
29. Mr. Blake sought a legal opinion from City Attorney Sellers, as to whether he had to abstain from any vote to discharge Mr. Christensen. In a letter dated February 28, 2003, Mr. Sellers correctly noted that Mr. Blake had a personal issue with Mr. Christensen related to the home Mr. Blake was having built and that Mr. Blake had received complaints from others addressing Mr. Christensen's performance. Mr. Sellers opined, "It is my opinion that firing or not firing the building inspector is not reasonably calculated to afford you any special private gain or loss and that there will be no conflict involved in your voting on the above state [sic] issue."
30. At a meeting of the Council on March 11,
2003,
Mr. Blake moved to abolish the City's building inspection activity and to
contract with Suwannee County for the purpose of building inspections. This
motion failed with three members voting in opposition and two in favor. Mr.
Blake then moved to require Mr. Christensen to work five days a week, in
accordance with the City Personnel Policy and Procedure Manual. This motion
passed.
31. The requirement to work a five-day week resulted in the constructive termination of Mr. Christensen because he could not comply with this requirement due to his personal financial situation. Accordingly, on March 17, 2003, Mr. Christensen submitted his letter of resignation. Mr. Blake put a copy of Mr. Christensen's letter of resignation in each councilperson's box, and the Mayor's box, and loudly announced that he was not through with Mr. Christensen and that he would sue him.
32. Mr. Christensen, prior to his employment, and subsequently, has been on the Internet advocating for the removal of city councilmen who intimidate building officials. The record does not reveal why, but it is clear that
Mr. Christensen was a pistol with a hair-trigger, waiting for an elected official to pull it.
33. He found that official in Mr. Blake. It
was proved by clear and convincing evidence that Mr. Blake had a personal
vendetta against Mr. Christensen and that he used his position as a City
Councilman to try to intimidate him. It was proved by clear and convincing
evidence that Mr. Blake used his position to ultimately effect his resignation.
It was also proved that there were others in the community who desired to have
Mr. Christensen's employment come to an end, and that in part, Mr. Blake was
representing their interests in his efforts to have Mr. Christensen discharged.
CONCLUSIONS OF LAW
34. The Division of Administrative Hearings has jurisdiction over the subject matter of and the parties to this proceeding. § 120.57(1), Fla. Stat (2005).
35. Section 112.322, and Florida Administrative Code Rule 34-5.0015, authorize the Commission to conduct investigations and to issue final orders and public reports concerning violations of the Code of Ethics.
36. The burden of proof, absent a statutory directive to the contrary, is on the party asserting the affirmative of the issue of 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 Services, 348 So. 2d 349 (Fla. 1st DCA 1977). Therefore, the Advocate has the burden of proof.
37. Because of the penalties provided by Section 112.317, the Advocate must prove its case by clear and convincing evidence. Latham vs. Florida Commission on Ethics, 694 So. 2d 83 (Fla. 1st DCA 1997).
38. Section 112.313(6), provides:
112.313 Standards of conduct for public officers, employees of agencies, and local government attorneys.--
* * *
(6)
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.
39. Section 104.31 addresses elections and is not applicable to this case.
40. An analysis of Sections 112.313(6) and 112.312(9), which defines "corruptly," demonstrates that in order to conclude that Mr. Blake violated Section 112.313(6), the following elements must be proven by clear and convincing evidence:
a. that Mr. Blake was a public officer or employee of an agency; and that
b. he used or attempted to use his official position or any property or resource which was within his trust, or performed his official duties, such that
c. his actions were done with an intent to secure a special privilege, benefit, or exemption for himself or others; and
d. that Mr. Blakes's actions were done "corruptly," that is,
(1) done with a wrongful intent, and also
(2) done for the purpose of benefiting from some act or omission which was inconsistent with the proper performance of public duties. In re: Eli Tourgeman, Case No. 93-5183EC (DOAH April 29, 1994.)
41. Mr. Blake was a public officer who used his official position to affect the employment status of Mr. Christensen. Therefore, the first two elements are proven by clear and convincing evidence.
42. With regard to the third element, he secured no special privilege or exemption for himself or others. He did, however, secure a benefit. He obtained revenge. Therefore, the third element is proved.
43. With regard to element d(1),
wrongful intent,
Mr. Blake sought and received a City Attorney's Opinion prior to acting, which
stated that his proposed course of action was lawful. Advice of counsel, when
based on a proper statement of the facts, as this was, is not necessarily a complete
defense in this case. Nevertheless, Mr. Sellers' opinion tends to prove a lack
of wrongful intent on the part of Mr. Blake. See Mooney vs. Tully,
Case No. 76-1934 (DOAH March 10, 1977).
44. Moreover, the advice of counsel negates the assertion that Respondent acted with reasonable notice that his conduct was inconsistent with the proper performance of his public duties. Having been advised that his conduct was not inconsistent tends to negate a claim that he had reasonable notice that his conduct was impermissible. In fact, the notice he received from the City Attorney was that his actions were consistent with the proper performance of his public duties. See Blackburn vs. Commission on Ethics, 589 So. 2d (Fla. 1st DCA 1991) and Bennett vs. Commission on Ethics, 871 So. 2d 924 (Fla. 5th DCA 2004).
45. With regard to element d(2), although Mr. Blake was a vociferous opponent of Mr. Christensen and had a personal desire to be rid of him, he was not alone in this desire. There was a constituency in the community which opposed the continuation of Mr. Christensen's employment. There was a confluence of desire on the part of certain citizens and Mr. Blake to rid themselves of Mr. Christensen. Therefore, Mr. Blake's actions were consistent with the proper performance of his duties.
46. Taking the evidence as a whole, it cannot be found that Mr. Blake's actions were corrupt.
RECOMMENDATION
Based upon the Findings of Fact and Conclusions of Law, it is
RECOMMENDED that the Commission on Ethics issue a Final Order and Public Report finding that George Blake did not violate Section 112.313(6), Florida Statutes, and dismissing the complaint filed against him.
DONE AND ENTERED this 25th day of January, 2006, in Tallahassee, Leon County, Florida.
S
HARRY L. HOOPER
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 January, 2006.
COPIES FURNISHED:
Linzie F. Bogan, Esquire
Advocate for the Florida Commission
on Ethics
Office of the Attorney General
The Capitol, Suite Plaza-01
Tallahassee, Florida 32399-1050
Kaye Starling, Agency Clerk
Florida Commission on Ethics
Post Office Drawer 15709
Tallahassee, Florida 32317-5709
George W. Blow, III, Esquire
Law Offices of George W. Blow, III
106 White Avenue, Suite C
Live Oak, Florida 32064
Bonnie J. Williams, Executive Director
Florida Commission on Ethics
Post Office Drawer 15709
Tallahassee, Florida 32317-5709
Philip C. Claypool, General Counsel
Florida Commission on Ethics
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.