Recommended Order
This cause came on for formal
hearing before Harry L. Hooper, Administrative Law Judge with the Division of
Administrative Hearings, on April 17, 2007, in Keystone Heights, Florida.
APPEARANCES
For
the Florida
Commission on Ethics:
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: No appearance
STATEMENT OF
THE ISSUE
The
issue is whether Respondent violated the Code of Ethics for Public Officers and
Employees.
PRELIMINARY
STATEMENT
On October 19, 2005, the Florida Commission
on Ethics (Commission) found probable cause to believe that Jason Padgett (Mr. Padgett), a council member of the Town of Hampton,
Florida, violated Subsections 112.313(2)
and (6), Florida Statutes (2003),1 by improperly soliciting William
Tillotson, Jr. (Mr. Tillotson),
to withdraw a previously filed ethics complaint. In return, it was alleged, Mr. Padgett promised to continue to support the town's
police department. Mr.
Tillotson was one of the policemen employed in the town's small police
department.
Mr.
Padgett demanded a hearing, and on October 27, 2006, the case was forwarded to
the Division of Administrative Hearings. The case was set for hearing on January 8 and
9, 2007, in Keystone Heights,
Florida. Immediately prior to the hearing, Mr. Padgett
notified the Advocate of his unavailability, and the case was continued. It was
eventually set for an April 17, 2007, hearing date. Mr.
Padgett was duly-notified of the date, time, and place of the hearing, but he
did not appear.
At the final hearing, the Advocate called
Mr. Tillotson as a witness and
offered six exhibits into evidence. All were admitted.
A Transcript was filed on April 30, 2007. The Advocate
timely filed a Proposed Recommended Order on May 10, 2007.
FINDINGS OF
FACT
1. During all times relevant, Mr. Padgett served as a member of the Hampton Town
Council, Hampton, Florida. Mr. Padgett resigned from the town
council on a date subsequent to May 4, 2004.
His last known address was 9885
South Temple Avenue, Hampton, Florida.
2. The Commission was created by Section 112.320, Florida Statutes, and is vested with the power
to implement the Code of Ethics for Public Officers and Employees (Ethics Code).
3. As a former member of the Hampton Town
Council, Mr. Padgett is subject to the dictates of Chapter 112, Part III,
Florida Statutes, as that part pertains to acts and omissions occurring during
his tenure as a town council member for Hampton,
Florida.
4. On September 9, 2002, Mr. Tillotson, filed a complaint
against Mr. Padgett with the
Commission. The Commission assigned this complaint case number 02-132. This case involved an effort by Mr. Padgett to convince Mr.
Tillotson to withdraw two traffic tickets he issued to two citizens of Hampton in 2002.
5. On August 27, 2003, the Commission issued a
Report of Investigation (ROI) regarding case number 02-132, which was forwarded
to Mr. Padgett. Based on the ROI, Commission Advocate
Virlindia Doss (Advocate Doss) issued a recommendation that the Commission find
probable cause to believe that Mr.
Padgett's actions were a violation of Subsection 112.313(6),
Florida Statutes. This information was provided to Mr. Padgett in a letter dated September 16, 2003.
6. On September 19, 2003, Advocate Doss mailed
to Mr. Padgett a Joint Stipulation of Fact, Law, and Recommended Order
with regard to case number 02-132. This stipulation invited Mr. Padgett to admit to the two violations and to
agree to forfeit one-third of his public salary as a member of the Hampton Town
Council for a period of 12 months.
7. On September 21, 2003, Mr. Padgett approached Mr. Tillotson and
discussed the pending ethics complaint with him. Mr.
Padgett stated that he would consider it a favor if Mr.
Tillotson would withdraw the ethics complaint and stated that in return he
would continue to support the Hampton Police Department. He further stated that if he had to pay the
proposed fine that he would always remember, each time he paid a bill, that Mr. Tillotson caused him to lose a third of his salary
from the Town of Hampton.
8. The forgoing actions of Mr. Padgett were intended to use his position as town
councilperson to intimidate Mr. Tillotson into withdrawing the ethics
complaint. In a small town with a small
police department, a councilperson is in a position to affect the economic
well-being of officers employed by the police department.
9. Mr.
Tillotson refused to withdraw the complaint. On September 23, 2003, Mr. Padgett signed the stipulation proposed by
Advocate Doss, thereby admitting to violations of the Ethics Code. He further
agreed to forfeit one-third of his public salary as a member of the Hampton
Town Council for a period of 12 months.
10. Thereafter, Mr.
Tillotson filed this complaint. It was
assigned case number 04-097.
CONCLUSIONS OF
LAW
11. The Division of Administrative Hearings has
jurisdiction over the subject matter of and the parties to this proceeding. § 120.57(1), Fla. Stat.
12. 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. Co., Inc., 396 So.
2d 778 (Fla.
1st DCA 1981). In this proceeding it is the Commission,
through its Advocate, that is asserting the affirmative, and the Commission
must prove by clear and convincing evidence the violations alleged.
13. Subsections 112.313(1),
(2), and (6), Florida
Statutes, provide as follows:
§ 112.313. Standards of conduct for public officers,
employees of agencies, and local government attorneys
(1) DEFINITION. --As used in this section, unless the
context otherwise requires, the term "public officer" includes any
person elected or appointed to hold office in any agency, including any person
serving on an advisory body.
(2) 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.
* * *
(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.
13. The Advocate
has established by clear and convincing evidence that Mr.
Padgett, at all time material to this matter, was a public officer and thus
subject to the Ethics Code; that in order to avoid forfeiting something of
value, one-third of his annual salary as a Town Council member, he solicited
Mr. Tillotson to withdraw his ethics complaint;
and that Mr. Padgett proposed that continued support of the Hampton Police
Department was contingent on Mr.
Tillotson's withdrawing his ethics complaint. Thus the
allegation of a violation of Subsection 112.313(2),
Florida Statutes, is proven.
14. The
Advocate has established by clear and convincing evidence that Mr. Padgett additionally, while a public officer, used
or attempted to use his position as a member of the Hampton Town Council in an
effort to cause Mr. Tillotson to
withdraw an ethics complaint so that he could avoid forfeiting something of
value, one-third of his annual salary as a Town Council member, by asserting
the support of the Hampton Police Department, which employed Mr. Tillotson, was contingent on the requested
withdrawal. Thus the allegation of a violation of
Subsection 112.313(6), Florida Statutes, is proven.
RECOMMENDATION
Based upon the Findings of Fact and
Conclusions of Law, it is
RECOMMENDED
that a final order and public report be entered finding that Respondent, Jason
Padgett, violated Subsections 112.313(2) and (6), Florida Statutes;
imposing a civil penalty of $10,000; and issuing a public censure and
reprimand.
DONE AND ENTERED this 21st day of May, 2007, 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 21st day of May, 2007.
ENDNOTE
[1]Citations to statutes are to Florida Statutes (2003), unless otherwise
noted
.
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
Post Office Drawer 15709
Tallahassee, Florida 32317-5709
Jason Padgett
9885 South Temple Avenue
Hampton, Florida 32044
Philip C. Claypool
Executive Director and 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.