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IN
RE: DANNY HOWELL, Respondent. |
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Case No. 05-4333EC |
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AMENDED Recommended Order
Pursuant
to notice, the Division of Administrative Hearings, by its duly-designated
Administrative Law Judge, Carolyn S. Holifield, held a formal hearing in this
case on August 25 and October 10, 2006, by video teleconference at sites in
Orlando and Tallahassee, Florida.
APPEARANCES
For
Advocate: Linzie F. Bogan, Esquire
Advocate for the Florida
Commission on Ethics
Office
of the Attorney General
The
Capitol, Plaza Level 01
Tallahassee, Florida 32399-1050
For Respondent:
C. Randall Freeman, Esquire
Freeman Legal Associates, P.A.
151 West Silver Star Road
Post Office Box 339
Ocoee, Florida 34761
STATEMENT OF THE ISSUE
The issues for determination are whether
Respondent violated Subsections 112.313(2), 112.313(4) and 112.313(6), Florida
Statutes (2004),1 as alleged, and, if so, what penalty should be
imposed.
PRELIMINARY STATEMENT
On April 26, 2005, the Florida Commission
on Ethics issued an Order Finding Probable Cause to believe that Respondent,
Danny Howell (Respondent), while serving as a member of the Ocoee City Commission,
violated Subsections 112.313(2), 112.313(4) and 112.313(6), Florida
Statutes. The Order Finding Probable
Cause alleged that the following acts constitute the foregoing violations: (1) Respondent required former Ocoee City
Manager James Gleason to pay a $150.00 fine that Respondent owed due to
Respondent's failure to timely file his Campaign Treasurer's Report; (2) Respondent
required Mr. Gleason to pay $354.18 for personal charges made by Respondent on
his city-issued credit card; (3) Respondent required Mr. Gleason to
purchase a computer for Respondent's son; and (4) Respondent required Mr.
Gleason to take the steps necessary to restore water service to Respondent's
home and waive all fees and costs associated with the termination of Respondent's
service.
The case was forwarded to the Division of
Administrative Hearings on or about November 23, 2005. Pursuant to notice issued December 7, 2005,
the case was set for final hearing commencing on January 20, 2006. Prior to the scheduled hearing date, the
Advocate filed a motion for continuance.
The motion was granted, and the matter was rescheduled for February 3,
2006. On February 1, 2006, C. Randall
Freeman, Esquire, entered an appearance on behalf of Respondent and also filed
a motion for continuance. Respondent's motion
for continuance was granted, and the final hearing was rescheduled for May 12,
2006. Subsequently, Respondent's counsel
requested and was granted two additional continuances before the final hearing was
conducted as noted above.
Prior to the hearing, the parties submitted
a Joint Pre‑Hearing Stipulation in which they stipulated to facts which
required no proof.
At the final hearing, the Advocate called
three witnesses: James Gleason, Wanda Horton, and Gequitha Cowan. The Advocate's Exhibits 1 through 10 and 12
through 17 were received into evidence. The
Advocate's exhibits included the deposition testimony of Respondent and Richard
Waldrop. Respondent testified on his own
behalf and called four witnesses: Vicki
Prettyman, Richard Waldrop, Sandra Howell, and James Gleason. Respondent's Exhibits A through E and G
through U were received into evidence.
A
Transcript of the proceeding was filed on November 21, 2006. At the conclusion of the hearing, by
agreement and request of the parties, proposed recommended orders were to be
filed 30 days after the Transcript was filed.
The parties subsequently requested and were granted two extensions of
time in which to file their proposed recommended orders. Under the extended time frame, the parties
were to file proposed recommended orders no later January 24, 2007. The Advocate's Proposed Recommended Order was
timely filed. Respondent filed his
Proposed Findings of Fact and Conclusions of Law and Memorandum of Law on
January 29, 2007. The post-hearing
submittals of both parties have been considered in preparation of this
Recommended Order.
FINDINGS OF FACT
1. At all times relevant to this proceeding, Danny
Howell was a duly-elected commissioner for the City of
2. At all times relevant to this proceeding,
James Gleason was city manager for the City of
3. When Mr. Gleason was initially appointed as
city manager, Respondent did not vote in favor of Mr. Gleason.
4. During his tenure as
city manager, Mr. Gleason was supervised by the Ocoee City Commission, which
was comprised of five elected commissioners.
As a commissioner, Respondent was one of Mr. Gleason's immediate
supervisors.
5. Several years prior to
Mr. Gleason's appointment as city manager, he had been a commissioner for the
City of Ocoee and a candidate for mayor.
As a result of Mr. Gleason's political involvement in the City,
Respondent knew Mr. Gleason before he was appointed city manager.
6. When hired, Mr. Gleason's annual base salary was
approximately $87,000.00. Mr. Gleason's
annual base salary at the time of his termination from the position of Ocoee
city manager was $103,000.00.
7. As a City commissioner, Respondent was paid a
monthly salary of $400.00 per month to serve on the City Commission. In addition to his $400.00 monthly salary, Respondent
received a monthly stipend of $275.00 for local travel.
Fine for Late-Filed
Campaign Treasurer's Report
8. At all times relevant
to this proceeding, Jean Grafton served as the Ocoee city clerk and as the City's
supervisor of elections.
9. By letter dated April 12, 2001, Ms. Grafton advised
Respondent that a $150.00 fine had been assessed against him due to his Campaign
Treasurer's Report not being timely filed.
The same or a similar letter was also sent to Vickie Prettyman,
Respondent's campaign treasurer.
10. Despite Respondent's having been notified of
the $150.00 fine in April 2001, a year later the fine had not been paid.
11. After the $150.00 fine remained outstanding
for more than a year, Ms. Grafton requested Mr. Gleason's assistance in getting
Respondent to pay the fine. Ms. Grafton
told Mr. Gleason that if Respondent did not pay the $150.00 fine, she
would have to notify the Florida Elections Commission that Respondent had
failed to pay the fine.
12. Upon learning that the $150.00 fine had not
been paid, Mr. Gleason discussed the matter with Respondent. Respondent advised Mr. Gleason that Ms.
Prettyman was to pay the fine. In making
this statement, Respondent was reasonably relying on Ms. Prettyman's
representation to him that she would pay the $150.00 fine.
13. As Respondent's campaign treasurer in 2001, Ms. Prettyman
took responsibility for late-filing Respondent's Campaign Treasurer's Report in
April of that year. Thus, Ms. Prettyman
assumed she should pay the fine.
14. The $150.00 fine for the late filing of Respondent's
Campaign Treasurer's Report was paid on May 17, 2002.
15. There is no dispute that Mr. Gleason delivered
$150.00 in cash to the City Clerk's Office and paid the fine that had been
assessed against Respondent. However, there
was conflicting testimony between Ms. Prettyman and Mr. Gleason as to who provided
the funds for the payment of the $150.00 fine and under what circumstances the
fine was paid.
16. On May 17, 2002, Ms. Prettyman met with Mr. Gleason
at the City's Beach Recreation Center, where Ms. Prettyman worked as interim recreation
director for the City. The meeting was
about an upcoming work-related project. After
the meeting ended, Mr. Gleason reminded Ms. Prettyman that the $150.00
fine was still outstanding.2 Ms. Prettyman then told Mr. Gleason she got paid that day3
and would pay the fine after she cashed her paycheck during her lunch
hour. Although it was lunch time, Ms. Prettyman
told Mr. Gleason that she could not leave the recreation center until the other
employee assigned to the center returned from lunch so that the center could
remain open.4
17. On May 17, 2002, Mr. Gleason volunteered to
stay at the Beach Recreation Center, so it could remain open while Ms. Prettyman
went to the bank to cash her paycheck.
18. When Ms. Prettyman returned to the recreation
center, she told Mr. Gleason that she would go to City Hall to pay the fine
later that afternoon. In response, Mr.
Gleason offered to take the money to City Hall and make the payment for Ms. Prettyman
since he was going there after he left the recreation center.
19. Ms. Prettyman accepted Mr. Gleason's offer to deliver
the $150.00 to City Hall and pay the fine for her. Ms. Prettyman then gave Mr. Gleason
$150.00 in cash to pay the outstanding fine.
20. Mr. Gleason never gave Ms. Prettyman a receipt
for the payment. However, a few days
after Ms. Prettyman gave the $150.00 to Mr. Gleason, she checked with Ms. Grafton
to determine if the fine had been paid.
In response, Ms. Grafton acknowledged that the payment had been received.
21. Mr. Gleason contradicts the foregoing account regarding
payment of the $150.00 fine, as described and testified to by Ms. Prettyman. Specifically, Mr. Gleason denied that Ms. Prettyman
gave him the $150.00 in cash to pay the fine and testified that he paid the
fine out of his personal funds.
According to Mr. Gleason, he paid the fine after being directed to do so
by Respondent.
22. Mr. Gleason testified that after Ms. Grafton asked
him to assist her in getting Respondent to pay the fine, he discussed the
matter with Respondent on two or three occasions. Mr. Gleason testified that on one of
these occasions, Respondent told him (Gleason) that he made more money than
Respondent so he (Gleason) should pay the fine and make it go away.
23. Based on the foregoing comments that
Respondent allegedly made, Mr. Gleason testified that he believed Respondent
wanted, expected, or was directing him (Gleason) to pay Respondent's $150.00
fine. Furthermore, Mr. Gleason
testified that he believed and/or feared that his job as city manager might or
could be adversely affected if he did not pay the fine.
24. Contrary to Mr. Gleason's testimony, the
credible testimony of Respondent is that he never directed or in any way
coerced, threatened, or pressured Mr. Gleason to pay the $150.00 fine.
25. Ms. Prettyman's testimony regarding payment of
the $150.00 fine and the circumstances surrounding the payment is found to be
more credible than that of Mr. Gleason.
Waiver of Fees Related to Late Payment of Water Bill
26. During the time Mr. Gleason
served as city manager, Respondent and his wife were sometimes late in paying
for their residential water service.
27. In March 2003, the City of Ocoee determined
that Respondent's residential water service would be terminated due to
non-payment of the balance owed on the account.
28. On or about March 20, 2003, Cathy Sills, who
worked in the City's Utilities Service Department (hereinafter referred to as "Utilities
Department"), contacted Mr. Gleason and informed him that Respondent
was on the City's water service cut-off list.
Mr. Gleason then contacted Respondent and informed him that his
water service was going to be turned off that day if his bill was not paid.
29. After being notified that his water service
was scheduled to be cut-off, Respondent told Mr. Gleason that either he (Respondent)
or his wife would go to the Utilities Department that day to pay the past due
balance. Respondent also told Mr. Gleason
that he would not be able to pay the late charges and any other related fees.
30. On March 20, 2003, after Mr. Gleason telephoned
Respondent about his (Respondent's) delinquent water bill, Respondent went to
the Utilities Department and paid his water bill. Some time after Respondent spoke to Mr. Gleason,
but before he arrived at City Hall to pay his water bill, the water service had
been turned off.
31. Due to Respondent's existing financial
difficulties, Respondent needed more time to pay the late charges or other fees
related to the water bill. Nevertheless,
Respondent never asked or directed Mr. Gleason to waive the late charges
or other fees associated with his delinquent water bill. Furthermore, Respondent never asked or
directed Mr. Gleason to make sure that Respondent's water service was not cut
off to restore water services after it was cut off.
32. Mr. Gleason testified that after he
talked to Respondent about his (Respondent's) delinquent water bill, he called Ms.
Sills at the Utilities Department and asked her what the policy was regarding
waiver of late charges. Mr. Gleason
then told Ms. Sills that if the policy allowed for such a waiver, she should
remove Respondent's late charges and the disconnect/service interruption fee
from his account.5
33. At all times relevant to this proceeding, the
City of Ocoee had an informal "forgiveness" policy in which late charges
and other penalties related to delinquent water bills were waived. The purpose of the policy was to provide
assistance to individuals, who like Respondent, were having financial
difficulties. Consistent with the City's
"forgiveness" policy, Mr. Gleason had routinely directed the
Utilities Department employees to waive late fees and other fees related to
delinquent water bills of eligible citizens and to work out payment plans for
them.
34. Ms. Sills waived Respondent's late charges and
the service interruption fee associated with Respondent's water bill after being
directed to do so by Mr. Gleason.
As a result of this waiver, on March 20, 2003, two late fee charges
totaling $50.00 and one service restoration fee of $50.00 were "reversed"
or removed from Respondent's account.
35. Ms. Sills confirmed the waiver in an e-mail to
Mr. Gleason in which she wrote, "Pursuant to our conversation and you
[sic] direction, I have reversed from [Respondent's] account" two late
fees at $25.00 each and one service restoration fee of $50.00.
36. Respondent received a call from Ms. Sills
advising him that the late fees and other fees related to his water bill had
been waived. However, she did not
mention why they were waived or at whose direction.
37. At the time Mr. Gleason directed Ms.
Sills to waive Respondent's late fees, Mr. Gleason knew that Respondent
was currently experiencing financial difficulties and had been experiencing
such difficulties for some time. Based
on Respondent's financial circumstances, he was eligible for the waiver of late
fees and service interruption fees under the City's "forgiveness"
policy.
38. The City's "forgiveness" policy,
which was applied in Respondent's case and effectively waived his late charges
and service interruption fees, was also routinely used in other financial hardship
cases.
39. Respondent had been delinquent in paying his
water bill on other occasions because of the financial difficulties he was
experiencing. However, the waiver of
late fees and service interruption fees given to Respondent in March 2003, at
the direction of Mr. Gleason, was the only waiver that Respondent ever
received.
40. Not long before March 20, 2003, the City
Commission adopted a policy which increased the late charges for delinquent
water bills from $5.00 to $25.00. When
the Commission was considering the fee increase, Respondent opposed the increase.
41. Notwithstanding Respondent's opposition to the
increase in late charges for delinquent water bills, he believes that once a
policy is adopted by the Commission, it should be applied equally to everyone. In accordance with this belief, Respondent did
not ask or direct Mr. Gleason to violate City policy with regard to Respondent's
water service, water bill, or fees/charges related thereto.
Payment of City-Issued Credit Card on Balance
42. At all times relevant
to this proceeding, City commissioners received a monthly stipend of $275.00 to
cover travel costs and expenditures in the local area.
43. The City of Ocoee is located in Orange County,
Florida. However, the resolution that
established the monthly stipend for City commissioners defined the "local
area" as Orange, Seminole, Lake, and Osceola counties.6
44. In addition to receiving the monthly stipend of
$275.00 for local travel, the City issued credit cards to the City commissioners.
45. Each month, the charges incurred by City commissioners
were reviewed by the City's Finance Department to reconcile and ensure the legitimacy
of the charges.
46. On May 9, 2002, Gequitha Cowan, executive assistant
to the mayor and commissioners of the City of Ocoee, sent an e-mail to
Respondent. In the e-mail, Ms. Cowan reminded
Respondent that he had not yet paid the City the $354.18 to cover non‑reimbursable
charges that he charged on the City-issued credit card. Ms. Cowan sent Mr. Gleason a
courtesy copy of the e-mail.
47. Of the $354.18 outstanding balance on the credit
card, $157.83 was for expenses Respondent incurred that were related to his
attending the League of Cities conference held in Atlanta, Georgia. The remaining credit card balance of $196.35
was for local charges, primarily to restaurants made during a seven-month
period, September 1, 2001, through April 2002.
48. Respondent admitted that included in the
$196.35 credit card balance is a $28.80 charge for which he should not be reimbursed. This charge resulted from Respondent's
inadvertently using his City-issued (Visa) credit card, instead of his personal
Visa credit card when he purchased medicine at a local store.
49. Except for the $28.80 charge, Respondent
believed that the other charges at issue were expenses for which the City
should have reimbursed him.
50. After Mr. Gleason received a copy of Ms.
Cowan's May 9, 2002, e-mail, he met with Respondent to see if any of the
charges identified in the e-mail were expenditures that could be properly
reimbursed by the City. With respect to
the $157.83 expenditure, Respondent presented no documentation to support reimbursement. As to the remaining balance (except the
$28.80 Eckerd's charge), the credit card charges were for expenditures made at
establishments in the local area and were not reimbursable by the City.
51. There is no allegation that the expenditures
made by Respondent were not legitimate expenses. However, based on the City's policy,
expenditures for official City business in the local area should have been paid
out of Respondent's monthly stipend.
Such expenditures were not reimbursed by the City, even if the expenses
were put on the City-issued credit card.
Pursuant to the City's policy, generally, the City reimbursed City commissioners
only for expenditures involving official business outside the local area.
52. Respondent sometimes mistakenly made improper
charges when using his City-issued credit card because he did not understand
the City's policy related thereto.7 In fact, as of the date of
this proceeding, Respondent acknowledged that he still does not understand the
policy. Due to Respondent's frustration
with not understanding the City's policy and resulting problems associated
therewith, Respondent voluntarily returned his City-issued credit card to the
City's Finance Department in 2002.
53. Although Respondent believed, albeit mistakenly,
that he should have been reimbursed for the subject charges on the City-issued
credit card, he never brought the issue regarding the disputed charges before
the City Commission, the final arbiter of such disputes. Having failed to do so, Respondent does not
dispute that he was obligated to pay the City $354.18, as determined by the
City's Finance Department.
54. After Respondent received Ms. Cowan's e-mail
and talked to Mr. Gleason about the charges, he did not immediately pay
the charges. The reason Respondent did
not pay the charges in May or early June 2002, was that he was not working. As a result of being unemployed, Respondent
was experiencing financial difficulties and did not have the money to pay the
$354.18 to the City.8
55. On June 3, 2002, Mr. Gleason paid the
City of Ocoee $354.18 from his personal funds to cover Respondent's outstanding
City-issued credit card debt. Mr. Gleason
paid the outstanding charges using a personal check which had the imprinted
name of Mr. Gleason and Mr. Gleason's wife. The memo section of the check indicated that
the check was for "miscellaneous expenses" for the same time period
as Respondent's outstanding charges.
56. There is no dispute that on June 3, 2002, Mr. Gleason
paid the $354.18 to cover Respondent's outstanding credit card charges. However, the circumstances surrounding the
credit card payment, the reason Mr. Gleason made the payment, and whether
Respondent repaid Mr. Gleason for the payment are disputed.
57. Although, due to his financial situation,
Respondent was unable to timely pay his outstanding $354.18 credit card
charges, he never asked or directed Mr. Gleason to pay those charges. Furthermore, Respondent never coerced,
threatened, or pressured Mr. Gleason to pay the credit card charges.
58. Respondent was out-of-town on June 3, 2002,
the day Mr. Gleason paid his $354.18 credit card bill, but returned to the
City of Ocoee a day or a few days later.
59. Respondent first learned that Mr. Gleason
had paid the $354.18 outstanding credit card balance in or about early June
2002, after returning from his out-of-town trip. Mr. Gleason approached Respondent at
City Hall and told him that he (Gleason) had taken care of the credit card bill. Mr. Gleason then gave Respondent the
receipt which showed that Mr. Gleason had paid Respondent's outstanding
$354.18 credit card bill.
60. Mr. Gleason told Respondent that he paid
the credit card bill because he was trying to help him (Respondent) out with "Martha"
and did not want Respondent to look bad.
61. Respondent was surprised to learn that Mr. Gleason
had paid the $354.18. In response to Mr. Gleason's
statements to Respondent described in paragraph 60, Respondent told Mr. Gleason
that he had no right to pay the outstanding credit card bill and that he did
not want him to pay the bill. Respondent
also told Mr. Gleason that his paying the bill would "create a bad
problem" for both of them.
62. The "Martha" referred to by Mr. Gleason
during his conversation with Respondent, discussed in paragraph 60, was Martha
Lopez Anderson, a citizen of the City of Ocoee.
At the time in question (May or early June 2002) Ms.
63. The travel records requested and being reviewed
by Ms. Anderson were located in the Finance Department in City Hall. Consequently, it was common knowledge among many
City employees at City Hall that Ms. Anderson was reviewing the City commissioners'
travel records.
64. After Mr. Gleason paid Respondent's credit
card balance, but prior to October 1, 2002, Richard Waldrop, a friend of
Respondent and long-time City employee, became aware that Ms. Anderson was
reviewing the City Commissioners' travel records. In fact, Ms. Anderson spoke to Mr. Waldrop
about the matter and told him that Mr. Gleason had paid a bill for
Respondent and that Respondent had not repaid Mr. Gleason.
65. Mr. Waldrop does not recall the actual date
that he learned that Respondent owed Mr. Gleason money for the bill that Mr. Gleason
had paid. However, Mr. Waldrop's
credible testimony was that he is sure that it was prior to October 1, 2002.
66. After June 3, 2002, but prior to October 2002,
Respondent was approached by Mr. Waldrop, who asked him if Mr. Gleason had
paid a bill owed by Respondent. In
response to his friend's inquiry, Respondent told Mr. Waldrop that Mr. Gleason
had paid the bill, but without Respondent's prior knowledge. Respondent also acknowledged that he had not
repaid Mr. Gleason, because he did not have the money.
67. Upon learning that Respondent had not repaid Mr. Gleason,
Mr. Waldrop was concerned that this was something that Mr. Gleason might
want to "hold over" Respondent's head. Mr. Waldrop told Respondent that this
situation "didn't look good" and then offered to lend Respondent
$420.00 so that he could reimburse Mr. Gleason.
68. Respondent accepted Mr. Waldrop's offer to
lend him $420.00 so that he could repay Mr. Gleason.
69. In order to repay the loan to Mr. Waldrop,
Respondent and Mr. Waldrop agreed that Respondent, through his (Respondent's)
and his wife's cleaning service, would provide house cleaning services to Mr.
Waldrop and his wife two hours every other week until the debt was repaid. These services were provided at no charge for
about a year, until the $420.00 debt was repaid.
70. After Respondent received the $420.00 loan
from Mr. Waldrop, he reimbursed Mr. Gleason for the outstanding
credit card balance that Mr. Gleason had paid on June 3, 2002. Although the amount Respondent owed Mr. Gleason
was $354.18, when Respondent repaid Mr. Gleason, he gave Mr. Gleason
$355.00 in cash.
71. Due to the passage of time, Respondent does
not recall the exact date that he reimbursed Mr. Gleason for paying
Respondent's $354.18 outstanding credit card debt. Nonetheless, Respondent testified credibly that
he repaid Mr. Gleason weeks, rather than months, after he learned that Mr. Gleason
had paid Respondent's credit card bill. Furthermore,
Respondent testified credibly that he is certain that he reimbursed Mr. Gleason
prior to October 1, 2002.
72. Mr. Gleason denied that Respondent repaid
him the $354.18. Also, Mr. Gleason's
testimony regarding the circumstances which resulted in his paying Respondent's
outstanding credit card debt contradicts Respondent's testimony.
73. According to Mr. Gleason, he met with
Respondent in or about May 2002, after receiving Ms. Cowan's e-mail, about his
credit card balance. Mr. Gleason
testified that during that discussion, Respondent told Mr. Gleason that he
(Gleason) made the "big bucks" and "could afford it [the credit
card balance]."
74. In May 2002, when Respondent's outstanding
credit card balance was at issue, Mr. Gleason knew that Respondent was
having financial difficulties, as well as other problems. Mr. Gleason testified that, in light of
those difficulties, when Respondent made the comments noted in paragraph 73, Mr. Gleason
believed that Respondent either did not have the money to pay the credit card
bill or did not intend to pay it.
75. Mr. Gleason did not interpret the alleged
comments (that Mr. Gleason made "big bucks" and could afford to
pay the outstanding credit card balance) as an attempt by Respondent to coerce,
threaten, or pressure him to pay the $354.18 or to extort the money from
him. Rather, Mr. Gleason testified
that he implied from those comments that Respondent was asking Mr. Gleason
for a loan.
76. Contrary to Mr. Gleason's interpretation
of the foregoing comments made by Respondent, Respondent did not ask Mr. Gleason
for a loan, imply that Mr. Gleason should lend him money to pay the
$354.18 outstanding credit card balance, or direct Mr. Gleason to pay Respondent's
outstanding credit card balance.
77. At this proceeding, Mr. Gleason testified
that Respondent never repaid him for the $354.18 payment that he made to the
City for Respondent. This testimony contradicts
an earlier statement Mr. Gleason made at a City Commission meeting.
78. During the October 1, 2002, City Commission
meeting, Mr. Gleason stated that the commissioner, for whom he had paid an
outstanding credit card balance, had repaid him in full and that he (Gleason)
owed the commissioner some change. Mr. Gleason
did not name the commissioner to whom he was referring, but he was referring to
Respondent.9
79. Mr. Gleason made the statement that the commissioner
had paid him in full, in response to comments of Ms. Anderson, in the context
of a broader discussion about commissioners' travel expenses. Almost as an aside to the specific "travel
expenses" topic being discussed, Ms. Anderson mentioned that inappropriate
charges made by "commissioners" were being reimbursed by Mr. Gleason.10 During the
course of making the foregoing comments, Ms. Anderson never specifically named the
commissioners whose expenses were being reimbursed by Mr. Gleason.
80. The statement Mr. Gleason made at the
October 1, 2002, City Commission meeting, is consistent with the credible
testimony of Respondent on two points.
First, Mr. Gleason's statement that he was paid in full supports
Respondent's testimony that he reimbursed Mr. Gleason for paying the
$354.18 credit card balance to the City prior to October 1, 2002. Second, Mr. Gleason's statement that he
owed the commissioner change is consistent with Respondent's testimony that,
when he reimbursed Mr. Gleason, he gave Mr. Gleason $355.00 in cash. This was $.82 cents more than the outstanding
credit card bill that Mr. Gleason paid.
81. In this proceeding, Mr. Gleason testified
that when the issue of his paying Respondent's $354.18 credit card charges came
up at the City Commission meeting, he did not tell the truth when he said that
Respondent had paid him.
82. Mr. Gleason testified that on October 1, 2002,
but prior to the City Commission meeting that day, Respondent approached Mr. Gleason
and advised him that Respondent's $354.18 credit card bill issue might be
raised at the meeting. Mr. Gleason
also testified that Respondent told him that if the issue were raised at the
meeting, Mr. Gleason should say that Respondent had paid/reimbursed him.11
83. Mr. Gleason testified that he lied at the
City Commission meeting at the behest of Respondent, because he "wanted to
keep [Respondent's] favoritism in terms of [Gleason's] job."
84. As to matters related to the payment of
Respondent's outstanding $354.18 credit card debt and the circumstances related
thereto, Respondent's testimony is found to be more credible than that of Mr. Gleason.
Purchase of Surplus Computer
85. While serving on the
City Commission, Respondent's wife, Mrs. Howell, and their son, frequently
visited City Hall. During these visits,
it was customary for Respondent's son, who was about ten-years-old, to visit Mr. Gleason,
whose office was next door to Respondent's office. When Respondent's son went to Mr. Gleason's
office, Mr. Gleason would give him candy and sodas.
86. Mr. Gleason and Respondent's son enjoyed
a cordial relationship.
87. The City of Ocoee periodically disposes of
surplus equipment, including computers, by use of a closed bid system which was
open to employees and elected officials.
88. In or about September 2003, during one of Mrs. Howell's
and her son's visits to Mr. Gleason's office, a discussion ensued about
computers and the City's upcoming sale of its surplus computers. Mrs. Howell's son stated that he wanted one. That day, Mrs. Howell's son had gone to Mr. Gleason's
office first, and she joined him there later.
89. In response to
Respondent's and Mrs. Howell's son saying he wanted a computer, Mr. Gleason
volunteered to get him one as a gift.
Mrs. Howell responded by telling Mr. Gleason, "No. He [referring to her son] can wait."
90. Mrs. Howell rejected Mr. Gleason's offer
initially because she felt that the family could not afford one, and she did
not feel comfortable allowing her son to accept a gift from Mr. Gleason. However, she did not feel comfortable telling
Mr. Gleason, especially in her son's presence, that she could not afford
the computer her son wanted.
91. Mrs. Howell was adamant and repeatedly told
Mr. Gleason that she did not want him to purchase a computer for her son. Nonetheless, Mr. Gleason insisted that
he was going to get the computer for her son anyway.
92. After Mrs. Howell made it clear that she did
not want Mr. Gleason to purchase a computer for her son, Mr. Gleason said
to her, "Listen, I'm going to get it and you can do whatever you want, if
you want to pay me back or whatever."
93. Mrs. Howell's final answer to Mr. Gleason
was the same one that she initially shared with Mr. Gleason--she did not
want him to purchase a computer for her son.
94. Mrs. Howell never
asked or agreed to Mr. Gleason buying a computer for her son, and she
never agreed to pay Mr. Gleason for purchasing a computer.
95. Respondent was not present in Mr. Gleason's
office with his wife and son when Mr. Gleason and Mrs. Howell were
discussing the surplus computer, but Mrs. Howell told Respondent about the
conversation later.
96. After learning of his wife's conversation with
Mr. Gleason, Respondent told Mr. Gleason that he did not want his son
to have a computer. Based on this
discussion, Respondent believed the matter was settled.
97. There was a computer in Respondent's home, and
Respondent believed that for his ten-year-old son to have his own computer
would be a detrimental distraction.
98. Mr. Gleason's offer to buy a surplus
computer as a gift for Respondent's son was subject to Mr. Gleason being a
successful bidder. In order to purchase
one of the City's surplus computers, a potential purchaser had to submit a
bid. Consistent with this policy, Mr. Gleason
submitted a bid for a surplus computer.
99. On September 19, 2003, Mr. Gleason was
notified that his bid of $130.10 was one of the successful bids and that he had
won one of the City's surplus computers.
A few days later, Mr. Gleason purchased the surplus computer to
give to Respondent's son.
100. On Monday, September 22, 2003, Mr. Gleason
sent an e‑mail to Respondent indicating that he had successfully bid on
one of the surplus computers. In the
e-mail, Mr. Gleason stated that he was going to pay for the computer on Tuesday
and then "turn the PC [computer] over to [Respondent's son] for his room." Mr. Gleason then wrote, "We can work out
the details later!" Both Respondent
and his son read this e-mail.
101. The September 22, 2003, e-mail gave the false
and/or misleading impression that Respondent had asked Mr. Gleason to purchase
the computer for Respondent's son, knew that Mr. Gleason had submitted a
bid on the computer, and had agreed to repay Mr. Gleason for the computer. In fact, none of those impressions were
accurate. Respondent never asked
Mr. Gleason to bid on a computer for Respondent's son or to purchase such computer. Neither did Respondent ever promise to pay
Mr. Gleason for a computer.
102. Although the implication in the September 22,
2003, e-mail was false, there is no indication that Respondent replied to the
e-mail. Furthermore, Respondent provided
no explanation or reason as to why he failed to respond to the misleading e‑mail.
103. On or about September 22, 2003, after Mr. Gleason
paid for and received the surplus computer, and he took the computer to
Respondent's home, unannounced.
104. When Mr. Gleason brought the computer to
Respondent's home, Respondent and his wife were placed in an awkward
position. Their son was home when Mr. Gleason
brought the computer and was very happy and excited about getting a
computer. Seeing the expression on her
son's face, Mrs. Howell did not have the heart to tell Mr. Gleason to take
the computer back. Rather than
disappoint their son, Respondent and his wife allowed Mr. Gleason to
install the computer.
105. Not long after Mr. Gleason brought the
computer to Respondent's home, Respondent called Mr. Gleason several times and
told him to come and pick up the computer.
Despite Respondent's repeated directives, Mr. Gleason never came to get
the computer.
106. At some point, Mr. Gleason left a voice
mail message on Respondent's home telephone indicating that the surplus
computer he purchased and gave to Respondent's son was a gift.
107. Rather than picking up the computer as
Respondent had requested, on October 1, 2003, Mr. Gleason sent Respondent
another e-mail message which stated, "The computer is a gift from [sic] to
[Respondent's son], tell [Mrs. Howell] to not worry about any cost-he is a good
kid and I hope it helps him with his school work."
108. The October 1, 2003,
e-mail implies that Mrs. Howell had agreed to pay for the computer, that Mr. Gleason
had now decided that the computer was a gift, and that he no longer expected
Mrs. Howell to repay him for purchasing the computer. However, that implication is not only
misleading, but unfounded.
109. Nevertheless, Mrs. Howell never agreed to repay
Mr. Gleason for the computer.
Instead, she, like her husband, had repeatedly refused Mr. Gleason's
offer to purchase a computer as a gift for their son.
110. Even though Respondent did not want Mr.
Gleason to purchase a computer for his son, there is no indication that
Respondent or his wife replied to the October 1, 2003, e-mail.
111. Respondent never directed, requested, threatened,
coerced, or pressured Mr. Gleason to purchase a computer for their son. However, when Mr. Gleason brought the
computer to Respondent's home, he accepted it.
112. After realizing he had exercised poor judgment
in accepting the computer, Respondent did not return the computer to Mr.
Gleason. Instead, Respondent kept
demanding that Mr. Gleason pick up the computer from Respondent's
home. Even when it became apparent that
Mr. Gleason was not going to pick up the computer, Respondent never returned
the computer to Mr. Gleason.
113. The computer never worked properly so
eventually, Respondent and/or his wife threw it in the trash.
114. Mr. Gleason disputes and contradicts the
foregoing account of events related to his purchasing the computer for
Respondent's son. Mr. Gleason
testified that Respondent initially approached him and expressed an interest in
the City's surplus computers. According
to Mr. Gleason, Respondent asked if such computers could be purchased on a
payment plan.
115. Mr. Gleason testified that after
checking with the appropriate office, he advised Respondent that the City did
not accept payment plans for the purchase of surplus computers and equipment. Mr. Gleason testified that Respondent
then told Mr. Gleason that he (Respondent) wanted Mr. Gleason to get
him a computer and that he expected Mr. Gleason to be successful on the
bid.
116. Mr. Gleason testified that in October
2003, he decided to give the computer to Respondent's son because his
relationship with Respondent by this time had become adversarial, and he
decided that it would be in his best interest not to make an issue of
purchasing the computer.
117. With regard to the purchase of the computer
for Respondent's son and issues related thereto, the testimony of Respondent
and Mrs. Howell is found to be more credible than that of Mr. Gleason.
Gleason's Termination as City Manager
118. In February 2004, about four months after Mr. Gleason
gave the computer to Respondent's son, Respondent and two other City Commission
members voted to terminate Mr. Gleason's employment with the City. As a result of this majority vote, Mr. Gleason
was terminated as city manager.
119. Respondent voted to terminate Mr. Gleason
because he believed that Mr. Gleason was not doing the job. Respondent also was concerned that Mr. Gleason
had taken inappropriate and unsolicited actions. For example, after learning that
Mr. Gleason had paid his credit card debt, Respondent thought he had done
so to gain or retain Respondent's support or to buy his vote.
120.
All the actions taken by Mr. Gleason
were unsolicited and done gratuitously because Mr. Gleason thought that he
was losing Respondent's support, and Mr. Gleason was trying to gain or regain
Respondent's support. Instead of gaining
Respondent's support, Mr. Gleason's inappropriate and unsolicited actions
had the opposite effect. Respondent,
displeased with Mr. Gleason's inappropriate and unsolicited actions, was
offended by those actions and voted to terminate Mr. Gleason as city
manager.
121. The month after he was terminated,
Mr. Gleason filed a Complaint with the Commission on Ethics (hereinafter
the "Commission on Ethics" or "Commission") making the
allegations, which are the subject of this proceeding.
CONCLUSIONS OF LAW
122. The Division of
Administrative Hearings has jurisdiction over the parties and the subject
matter of this proceeding. §§ 120.569
and 120.57(1), Fla. Stat. (2007).
123.
Section 112.322, Florida Statutes, and Florida Administrative Code Rule
34-5.0015 authorize the Commission to conduct investigations and to make public
reports on complaints concerning violations of Chapter 112, Part III (the Code
of Ethics for Public Officers and Employees).
124. 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 v. J.W.C.
125. The Commission on Ethics proceedings, seeking
recommended penalties against a public officer, require proof of the alleged
violation(s) by clear and convincing evidence.
See Latham v. Florida Comm'n on Ethics, 694 So. 2d 83
(Fla. 1st DCA 1997). Therefore, in order
to prevail, the Commission must establish by clear and convincing evidence the
elements of Respondent's violations and the underlying facts upon which the
alleged charges are based.
126.
Clear and convincing evidence has been
described by the Supreme Court of Florida as follows:
[C]lear 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 in
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.
In
Re Davey, 645 So. 2d 398, 404 (
Alleged Violations of Section 112.313(6)
127.
In this case, it is alleged that
Respondent, while a City commissioner, violated Subsection 112.313(2), (4) and
(6), by requiring Mr. Gleason, then city manager, to: (1) pay Respondent's fine caused by the
late-filing of Respondent's Campaign Treasurer's Report; (2) waive late fees
and other costs associated with Respondent's delinquent water bill; (3) pay non‑reimbursable
expenses incurred by Respondent on his City‑issued credit card; and (4)
buy a computer for Respondent's son.
128. Subsection 112.313(6) 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.
129.
The term "corruptly" is defined by Subsection 112.312(9), 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 or her public duties.
130. In order to
establish a violation of Subsection 112.313(6), the following elements must be
proved.
1. The Respondent must have been a public
officer or employee.
2. The Respondent must have:
a) used or attempted to use his or her official
position or any property or resources within his or her trust, or
b) performed his or her official duties.
3. Respondent's actions must have been taken to
secure a special privilege, benefit or exemption for him- or herself or others.
4. Respondent must have acted corruptly, that
is, with wrongful intent and for the purpose of benefiting him or herself or another
person from some act or omission which was inconsistent with the proper
performance of public duties.
131. Respondent has stipulated that as a commissioner
for the City of Ocoee, he was a "public officer," and, as such,
subject to the requirements of Chapter 112, Part III, Florida Statutes. Therefore, the first element required to
prove a violation has been established.
132. Next, it must be shown that Respondent used
or attempted to use his official position, property, or resources within his
trust or performed his official duties to secure a special privilege, benefit,
or exemption for himself or others.
133. The evidence failed to establish that
Respondent required, directed, coerced, threatened, or pressured
Mr. Gleason to pay the $150.00 fine for the late-filed Campaign Treasurer's
Report. In the instant case, the
evidence proved that Respondent always believed that the fine would be paid by
his campaign treasurer, who had assumed responsibility for the fine and
promised to pay it.
134. The underlying factual allegation upon which
the violation of Subsection 112.313(6), is based is that Mr. Gleason paid the
$150.00 fine. The evidence did not
establish this alleged fact. The
evidence established that the $150.00 fine was paid voluntarily by Respondent's
campaign treasurer out of her personal funds.
Therefore, the element related to "wrongful intent" need not
be addressed.
135. The evidence failed to establish that
Respondent required, directed, coerced, threatened, or pressured the city manager
to waive any late fees or other costs associated with Respondent's water
bill. To the contrary, the evidence
showed that Respondent took no action to have the late fees and related charges
waived and was unaware of the circumstances that resulted in the waiver.
136. Assuming arguendo that Respondent
requested a waiver of the late fees and/or other costs related to his
delinquent water bill, there would still be no violation of Subsection
112.313(6). The reason is that the waiver
provided no special benefit to Respondent.
The evidence showed that the City routinely granted waivers of late fees
and other charges to citizens of the City of Ocoee who were having financial
difficulties under the City's "forgiveness" policy. It is undisputed that Respondent was eligible
for the waiver he received under the "forgiveness" policy. Therefore, the one‑time waiver granted
to Respondent under the City's forgiveness policy was consistent with the City's
existing policy and was not a special benefit to him.
137. Having failed to establish that Respondent
used or attempted to use his position to secure a special privilege, benefit or
exemption, the element related to "wrongful intent" need not be
addressed.
138. The evidence failed to establish that
Respondent required, directed, coerced, threatened, or pressured Mr. Gleason
to pay for expenditures of $354.18 on Respondent's City-issued credit
card. Rather, the evidence established
that Respondent had no prior knowledge that Mr. Gleason had paid the bill and
was surprised to learn that he had done so.
The evidence established that after Respondent learned that Mr. Gleason
had paid the $354.18 credit card bill, Respondent repaid him.
139. Based on the foregoing conclusion, Respondent
did not use or attempt to use his official position to secure a special benefit,
payment of the $354.18 credit card bill.
Therefore, there is no need to address the element related to "wrongful
intent."
140. The evidence failed to establish that
Respondent used or attempted to use his official position to secure a special
benefit, a computer for his son. There
was no evidence that Respondent required, directed, coerced, threatened, or
pressured Mr. Gleason to purchase a computer for his son. To the contrary, the evidence established
that both Respondent and his wife repeatedly told Mr. Gleason that they did not
want him to purchase a computer for their son.
141. The evidence also established
that Mr. Gleason ignored and disregarded the clear directive of Respondent and
his wife to not purchase a surplus computer for their son and, without their
knowledge, purchased one anyway.
142. Assuming that the computer purchased by Mr. Gleason
for Respondent's son was a special benefit, there still is no violation of Subsection
112.313(6), where Respondent never used or attempted to use his official
position to secure the special benefit.
As noted above, the evidence established that Mr. Gleason purchased
the computer without Respondent's knowledge and after Respondent clearly told
him not to purchase it.
143. In this case, the evidence failed to
establish that Respondent used or attempted to use his official position to
secure a benefit, a computer for his son.
Therefore, the element of "corrupt intent" need not be
addressed.
144. For the reasons stated above, the alleged
violations of Subsection 112.313(6) were not proven.
Alleged
Violations of Subsection 112.313(4)
145.
It is charged that by committing the
acts alleged in paragraph 124 above, Respondent received unauthorized compensation
in violation of Subsection 112.313(4).
146. Subsection
112.313(4) provides as follows:
UNAUTHORIZED
COMPENSATION.--No public officer, employee of an agency, or local government
attorney or his or her spouse or minor child shall, at any time, accept any
compensation, payment, or thing of value when such public officer, employee, or
local government attorney knows, or, with the exercise of reasonable care,
should know, that it was given to influence a vote or other action in which the
officer, employee, or local government attorney was expected to participate in
his or her official capacity.
147. In order to
establish a violation of Subsection 112.313(4), the following elements must be
proved.
1. The Respondent must have been a public
officer or employee.
2. The Respondent or the Respondent's spouse or
minor child must have accepted
some compensation,
payment or thing of value.
3. When such compensation, payment or thing of
value was accepted:
a) the Respondent knew that it was given to influence
a vote or other action in which the Respondent was expected to participate in
an official capacity; or
b) the Respondent, with the exercise of
reasonable care, should have known that it was given to influence a vote or
other action in which the Respondent was expected to participate in an official
capacity.
148. As noted in the paragraph above, at all times
relevant to this proceeding, Respondent was a "public officer." Therefore, the first element necessary to
establish a violation of Subsection 112.313(4) has been met.
149. Next, it must be proven that Respondent, his
spouse or his minor child accepted a computer, which is a "thing of value."
150. Once the first two elements are established,
it must be shown that when the compensation, payment, or thing of value was
accepted, Respondent knew or, with the exercise of reasonable care, should have
known that it was given to influence a vote or other action in which Respondent
was expected to participate in an official action.
151. With regard to the allegations related to the
$150.00 fine for Respondent's late-filed Campaign Treasurer's Report, the required
burden of proof was not met to establish a violation of Subsection 112.313(4).
152. Here, it is alleged Respondent accepted
$150.00, which constituted the compensation, payment, or thing of value from
Mr. Gleason. The factual allegation
underlying this charge is that when Respondent received the $150.00 from
Mr.Gleason, Respondent knew or, with the exercise of reasonable care, should
have known it was given to influence a vote or other action in which Respondent
was expected to participate (i.e., presumably, Respondent's vote to retain Mr.
Gleason as city manager).
153. The evidence established that the $150.00
fine was paid by Respondent's campaign manager and not by Mr. Gleason. Thus, any charges emanating from that
unproven factual allegation that the fine was paid by Mr. Gleason must fail.
154. Having failed to show that Mr. Gleason paid
the fine, the third element required to prove a violation of Subsection
112.313(4) can not be proven and is not addressed.
155. Based on the foregoing, the evidence failed
to establish that the allegation related to the $150.00 fine is a violation of Subsection
112.313(4).
156. The evidence established that $100.00 in late
fees and service interruption fees were waived for Respondent. The value of the fees waived for Respondent
constituted compensation, payment, or a thing of value within the meaning of Subsection
112.313(4). Undoubtedly, the removal of
these fees from Respondent's account was accepted by him. However, the evidence failed to show that
when Respondent accepted the waiver, he knew or, with the exercise of
reasonable care, should have known that the waiver had been issued at the direction
of Mr. Gleason and was given to influence a vote or other action in which he
was expected to participate.
157. The evidence established that when the waiver
was given to Respondent and accepted by him, he had no knowledge of who
authorized the waiver or the reason it was authorized. After all, as the undisputed evidence
established, the waiver of late fees given to and accepted by him was routinely
given to citizens of the City of
158. Based on the foregoing, the evidence failed
to establish that the waiver of Respondent's late fees related to his water
bill is a violation of Subsection 112.313(4).
159. The evidence failed to prove that Mr. Gleason's
$354.18 payment for non-reimbursable charges on Respondent's City-issued credit
card was compensation, payment, or a thing of value accepted by
Respondent.
160. The evidence established that initially,
Respondent did not know that Mr. Gleason had paid the bill, but upon learning
that the unsolicited payment had been made, he repaid the funds to Mr. Gleason. Therefore, Respondent never accepted the
$354.18 payment Mr. Gleason made on Respondent's behalf.
161. Having failed to prove that Respondent
accepted the $354.18 payment made by Mr. Gleason, there is no need to address
the third element required to show a violation of Subsection 112.313(4).
162. Based on the foregoing, the evidence failed
to establish that Mr. Gleason's $354.18 payment of Respondent's City-issued
credit card bill is a violation of Subsection 112.313(4).
163. Finally, it is alleged that Respondent's
conduct with respect to a surplus computer purchased by Mr. Gleason for
Respondent's minor son is a violation of Subsection 112.313(4).
164. The evidence established that Respondent
accepted the computer from Mr. Gleason and that the computer constituted a
thing of value.
165. The evidence
established that Respondent changed his mind about accepting the computer, but
that he did not ever return the computer to Mr. Gleason.
166.
Having established that Respondent accepted the computer, it must be
established that when Respondent accepted the computer, he knew or, with the
exercise of reasonable care, should have known that it was given to influence a
vote or other action in which Respondent was expected to participate.
167. The clear and convincing evidence established
that Respondent accepted the computer and that when he accepted the computer,
he knew or, with the exercise of reasonable care, should have known that the
computer was given to influence a vote or other action in which Respondent was
expected to participate.
168. The evidence established that in or about
June 2002, when Respondent found out that Mr. Gleason had paid his credit card
bill, Respondent believed Mr. Gleason had done so in order to retain Respondent's
support or to buy Respondent's vote.
169.
In January 2004, the City Commission had
to take affirmative action on Mr. Gleason's contract as city manager or the
contract was automatically renewed. This
and other issues routinely came before the City Commission. Therefore, in late September 2003, when Mr.
Gleason insisted on giving Respondent's son a computer, Respondent knew or
should have known that the computer was being given to influence Respondent's
vote or other action in which Respondent was expected to participate.
170. Based on the foregoing, the clear and
convincing evidence established that Respondent violated Subsection 112.313(4).
Alleged Violations of Subsection 112.313(2)
171.
Finally, it is alleged that the charges set forth in paragraph 124
constitute violations of Subsection 112.313(2).
172. Subsection
112.313(2) 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.
173.
In order to establish a violation of Subsection 112.313(2), the
following elements must be proved.
1. The Respondent must have been either a public
officer, a public employee or a candidate for nomination or election.
2. The Respondent must have solicited or
accepted something of value to him or her, including a gift, loan, reward,
promise of future employment, favor, or service.
3. Such solicitation or acceptance must have
been based upon an understanding that
the Respondent's
vote, official action or judgment would be influenced thereby.
174. Respondent has stipulated that he was a "public
officer" and, as such, subject to the requirements of Chapter 112, Part
III, Florida Statutes.
175. Next, it must be established that Respondent
solicited or accepted something of value to him, such as a gift, loan, reward,
favor, or service. If it is established
that the public officer solicited or accepted a gift, loan, reward, favor, or
services, it must be proven that the solicitation or acceptance engaged in by
the public officer was based on an understanding that the officer's vote,
official action, or judgment would be influenced thereby.
176. The evidence failed to establish that
Respondent solicited or accepted from Mr. Gleason the $150.00 payment for
the fine resulting from the late-filed Campaign Treasurer's Report. Because Respondent did not solicit or accept
the $150.00 payment from Mr. Gleason, there is no need to address the last
element required to prove a violation of Subsection 112.313(2).
177. Based on the foregoing, the evidence failed
to establish that the allegation related to payment of the $150.00 fine is a
violation of Subsection 112.313(2).
178. The evidence failed to establish that
Respondent solicited or accepted from Mr. Gleason $354.18 payment for
Respondent's credit card bill. In this
case, the evidence established that Respondent had no prior knowledge that
Mr. Gleason had paid the bill, but after learning that Mr. Gleason
had done so, Respondent reimbursed him.
Where there is no evidence that Respondent accepted the $354.18 payment,
there is no need to address the third element required to show a violation of
Subsection 112.313(2).
179. Based on the foregoing, the evidence failed
to establish that the allegation related to Mr. Gleason's payment of Respondent's
credit card bill is a violation of Subsection 112.313(2).
180. The evidence failed to establish that
Respondent solicited or accepted from Mr. Gleason the waiver of late fees and
other costs associated with Respondent's delinquent water bill. The evidence established that Respondent did
not ask Mr. Gleason to waive the late fees and other charges and that he
was not aware that Mr. Gleason had authorized the Utilities Department to waive
those fees and charges. Under these
circumstances, the waiver did not constitute solicitation or acceptance by
Respondent. Having failed to establish
such solicitation or acceptance, there is no need to address the third element
required to prove a violation of Subsection 112.313(2).
181. Based on the foregoing, the evidence failed
to prove that the allegation related to the waiver of charges and fees related
to Respondent's water bill violated Subsection 112.313(2).
182. With regard to the computer purchased by Mr. Gleason
for Respondent's son, the evidence established that Respondent accepted the
computer. At the time Respondent
accepted the computer, he believed it was something of value. However, there was no clear and convincing
evidence that Respondent's acceptance of the computer was based on an
understanding that Respondent's vote or other official action would be
influenced by such acceptance. The
evidence established that a few months after Respondent accepted the computer,
he voted to terminate Mr. Gleason.
183. Based on the foregoing, the evidence failed
to establish that Respondent, by accepting the computer purchased by Mr. Gleason,
violated Subsection 112.313(2).
Ultimate Conclusions
184. In this case, the burden of proof was not met
with respect to eleven of the twelve alleged violations.
185. Significantly, many of the underlying factual
allegations which are the basis for the alleged violations of Subsections
112.313 (2), (4), and (6) were not proven by clear and convincing evidence.
186. Respondent did not violate Subsection
112.313(2),as it relates to the alleged payment of Respondent's $150.00 fine
and his $354.18 credit card bill, waiver of the fees and charges related to his
water bill, and the purchase of a computer.
187. Respondent did not violate Subsection
112.313(4), as it relates to payment of Respondent's $150.00 fine and his
$354.18 credit card bill, and waiver of the fees and charges related to his
water bill.
188. Respondent violated Subsection 112.313(4),as
it relates to the purchase of the computer.
189. Respondent did not did not violate Subsection
112.313(6),as it relates to the alleged payment of Respondent's $150.00 fine
and his $354.18 credit card bill, waiver of the fees and charges related to his
water bill, and the purchase of the computer.
190.
For the foregoing reasons, it is
concluded that Respondent did not violate Subsections 112.313(2), (4) and (6).
RECOMMENDATION
Based on the foregoing Findings of Fact and
Conclusions of Law, it is,
RECOMMENDED
that a final order and public report be entered finding that Respondent
violated Subsection 112.313(4), Florida Statutes, in one of the four instances
alleged; Respondent did not violate Subsection 112.313(4), Florida Statutes, in
three of the four instances alleged; Respondent did not violate Subsection
112.313(6), Florida Statutes, in any of the four instances alleged; and
Respondent did not violate Subsection 112.313(2), Florida Statutes, in any of
the four instances alleged; and imposing a civil penalty of $500.00 for the
single violation.
DONE
AND ENTERED this 12th day of September, 2007, in Tallahassee, Leon County,
Florida.
S
CAROLYN S.
HOLIFIELD
Administrative Law
Judge
Division of
Administrative Hearings
The DeSoto Building
1230 Apalachee
Parkway
Tallahassee,
Florida 32399-3060
Fax Filing
www.doah.state.fl.us
Filed with the
Clerk of the
Division of
Administrative Hearings
this 12th of September,
2007.
ENDNOTE
[1]Unless otherwise indicated, all citations are
to the 2004 Florida Statutes.
[2]Ms. Prettyman had not previously paid the
fine because of her financial situation during the preceding year.
[3]There is no dispute that Friday, May 17,
2002, was a payday for City employees.
[4]There
is no dispute that this was a policy that was instituted by and implemented by Mr. Gleason
to ensure that the gym facilities at the recreation center were available to
citizens during lunchtime.
[5]The
reason Mr. Gleason called Ms. Sills to inquire about the policy regarding
waiver of late charges is unclear. This
is particularly true in light of Mr. Gleason's testimony that he authorized
or granted such waivers in financial "hardship" cases. See Finding of Fact, paragraph 33.
[6]At
hearing, there was conflicting testimony reflecting some confusion among City
employees about the number of counties included in the "local area." Two City employees, the finance director and
the executive assistant to the mayor and commissioners, testified that the "local
area" consisted of five counties and three counties, respectively.
[7]Respondent's
testimony that he did not understand the policy regarding use of the
City-issued credit card is supported by the credible testimony of the City's finance
director, Wanda Horton. Ms. Horton
testified that when the City first issued the credit cards to the commissioners,
she spoke to Respondent about the use of the City-issued credit card after an
improper expense was charged on the credit card. At that time, Ms. Horton had concerns that
Respondent did not "have a good understanding [of] what was allowed and
not allowed on the City-issued credit card."
[8]There
were prior instances when the City had advised Respondent that it could not
reimburse him for certain charges made on the City-issued credit card. In all those prior instances, Respondent paid
the City for the non-reimbursable or disallowed expenses.
[9]As
part of a lengthy discussion initiated by Ms. Anderson about the Commission's
travel policy, the citizen mentioned that inappropriate charges were being put
on the City-issued credit cards, that those charges were not being timely
reimbursed to the City, and, that in some cases, the charges were "not
reimbursed by City Commissioners, but by the City Manager." Although the citizen did not refer to a
particular commissioner at the end of the travel policy discussion, Mr. Gleason
made the following comment:
I wanted to clear
the matter up to close the books. I was
asked, due to the individual being out of town, would I take care of that. I was paid for those funds, three hundred
fifty-four dollars and sixty-one cents or what have you. In fact, to be very honest, I probably owe the
change, because I was paid three hundred fifty-five dollars or whatever the
difference was on that.
. . . but for the record that issue was paid, and was
paid to me in full, no different than as a loan or somebody had done involving
that process, because if I got to have a job where I have to start paying expenses
to keep my job, I don't need to be working here.
[10]She
presumably obtained this information during a review of public records.
[11]During
his direct testimony in this proceeding, Mr. Gleason seemed to imply that he
had no prior knowledge that commissioners' travel expenses would be discussed
at the October 1, 2002, City Commission meeting until Respondent told him. However, during cross-examination, he
admitted that not only did he know that this topic would be discussed, but so
did the mayor, the City commissioners, and City staff.
COPIES FURNISHED:
Linzie F. Bogan, Esquire
Advocate for the Florida
Commission on Ethics
Office of the Attorney General
The Capitol, Plaza Level 01
Tallahassee, Florida 32399-1050
Kaye Starling, Agency Clerk
Florida Commission on Ethics
3600 MacClay Boulevard, South, Suite 201
Post Office Drawer 15709
Tallahassee, Florida 32312
Philip C. Claypool, Executive Director
and
General Counsel
Florida Commission on Ethics
3600 MacClay Boulevard, South, Suite 201
Post Office Drawer 15709
Tallahassee, Florida 32312
C. Randall Freeman, Esquire
Freeman Legal Associates, P.A.
151 West Silver Star Road
Post Office Box 339
Ocoee, Florida 34761
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.