Recommended Order
Pursuant
to notice, Administrative Law Judge Don W. Davis of the Division of
Administrative Hearings held a final hearing in the above-styled cause on
Thursday, April 5, 2007, in
APPEARANCES
For the Advocate: James H. Peterson III,
Esquire
Office of the Attorney General
The
Capitol, Plaza Level 01
For Respondent: Wilson
Jerry Foster, Esquire
Law Offices of Wilson
Jerry Foster
STATEMENT OF THE ISSUE
The issue for determination is whether
Respondent, as a member of the Public Service Commission, violated Section
350.042, Florida Statutes, by knowingly receiving an ex parte
communication from a utility company regarding a matter that was being
considered at a Public Service Commission proceeding and failing to place the
communication on the record within 15 days of its receipt.
PRELIMINARY STATEMENT
On April 26, 2006, the Florida Commission on Ethics issued an
order finding probable cause to believe that Respondent, Rudolph “Rudy”
Bradley, as a member of the Public Service Commission, violated
Section 350.042, Florida Statutes. The
case was forwarded to the Division of Administrative Hearings on January 17,
2007.
At the final hearing, the Advocate called three witnesses: Respondent (now a former Public Service
Commissioner), Veronica Washington (Respondent’s former secretary at the Public
Service Commission), and Kimberly Griffin (Respondent’s former executive
assistant at the Public Service Commission).
The Advocate also introduced seven exhibits into evidence. Respondent’s counsel presented testimony of
three witnesses: Harold McLean (former
general counsel for the Public Service Commission), Veronica Washington, and
Respondent. Respondent’s counsel also
introduced one exhibit into evidence.
A Transcript of the hearing was filed on April 24, 2007. The parties requested and were granted leave
to file Proposed Recommended Orders within 30 days of the receipt of
transcript. Both parties filed such
orders, which have been reviewed and utilized in the preparation of this
Recommended Order.
FINDINGS OF FACT
1. Respondent served as a member of the Florida
Public Service Commission (PSC) from January 2002 until January 3, 2006.
2. Respondent is subject to the requirements of
Chapter 350, Florida Statutes, and Part III, Chapter 112, Florida Statutes, the
Code of Ethics for public officers and employees, for his acts and omissions
during his tenure as a member of the PSC.
3. Upon taking office in 2002, Respondent was
given training regarding his responsibilities in dealing with ex parte
communications between Commissioners and parties. As stated by Respondent, this training “was a
continuous discussion.”
4. Based on that training, Respondent was aware
that Section 350.042, Florida Statutes, provided that should he, as a Public
Service Commissioner, knowingly receive an ex parte communication
from a party regarding a docketed matter, he was obligated to place the
communication on the record.
5. October 14, 2002, the PSC held a special
agenda conference to consider Docket No. 990649B-TP, which involved determining
how much Verizon Telephone Company (Verizon) could charge other companies to
lease its network.
6. As Docket No. 990649B-TP involved determining
how much Verizon could charge, it is clear that Verizon was a party to the
matter.
7. Several days prior to the special agenda
conference, Michelle Robinson, who at the time was director of Verizon’s
Florida regulatory affairs, prepared and provided a memorandum (the “Verizon
Memo”) to Respondent’s then chief aide, Kimberly Griffin, and to the aides of
the other PSC Commissioners.
8. The Verizon Memo outlined Verizon’s position
regarding PSC staff recommendations on Docket No. 990649B-TP that were to be
considered at the October 14, 2002, PSC special agenda conference meeting.
9. The Verizon Memo was from a party regarding a
docketed matter. Although the Verizon
Memo does not state at the top that it was from Verizon, the context of the
Verizon Memo shows that it was from Verizon. In addition, since the document had a docket
number on it, it was evident that it related to a docketed matter.
10. Both Ms. Robinson and Ms. Griffin understood
that the Verizon Memo would be prohibited ex parte communication
should it be given to Respondent. They
also understood that it was permissible under Section 350.042, Florida
Statutes, for Ms. Robinson to share the Verizon Memo with Ms. Griffin
because Ms. Griffin was PSC staff and the ex parte prohibitions
of Section 350.042 did not apply to staff.
11. Veronica Washington, who was Respondent’s
secretary while Respondent was a Public Service Commissioner, testified that
she would not have let Respondent see the Verizon Memo “[b]ecause it is ex
parte communication because it is regarding an open docket.”
12. During the PSC special agenda conference held
October 14, 2002, Respondent read into the record, at length, comments and
questions that were verbatim or almost identical to written statements
contained in the Verizon Memo.
13. At the final hearing, Respondent testified
that if he had known the questions were from the Verizon Memo he would have
filed them on the record, “[b]ecause that’s the statute. That’s the law.” Respondent also testified that his receipt of
the ex parte
communication was not “knowingly” and he blamed his receipt of the ex parte communication on his
former aide, Kimberly Griffin. Per
Respondent’s testimony, it was “impossible” for him to have gotten the words he
used at the conference from anyone but Ms Griffin.
14. Respondent’s professed lack of knowledge that
the questions and comments came from an interested party is at variance with
the pre-hearing stipulation of the parties, the testimony of other witnesses
and cannot be credited. The context of
the questions and comments indicate that they were from Verizon or another
interested party challenging a staff recommendation.
15. Additionally, Respondent maintained Ms.
Griffin should have placed the Verizon Memo on the record because she was
supposed to have placed “all written communiqués” on the record. However, in a previous interview conducted
by the Ethics investigator in connection with this case, Respondent did not
mention this alleged obligation of his staff to place such things on the
record. Further, Section 350.042(1),
Florida Statutes, establishes that a PSC Commissioner’s staff members do not
have the responsibility of filing written communications that they (as opposed
to Commissioners) receive from interested parties. Respondent’s former aide, Ms. Griffin, and former
secretary, Ms. Washington, understood that the ex parte prohibitions of the law did not apply to staff.
16. While maintaining that Ms. Griffin must have
given him the materials recited by him into the record because he normally met
with his aide prior to PSC meetings to receive materials, Respondent has no
memory of discussing the subject Verizon issue with Ms. Griffin and testified
that he “had no prior knowledge of” the Verizon Memo.
17. Testimony of Ms. Griffin establishes that,
other than technical names or technical information which she would put in
quotes, she would never give verbatim language from regulatory entities or
parties to a PSC Commissioner. Rather,
Ms. Griffin explained, while she would sometimes provide actual verbiage from
staff recommendations, she would only summarize information received from
regulated entities. Ms. Griffin’s
understanding was that she could receive direct information from a regulatory
lobbyist and act as a “buffer” between regulatory entities and Respondent by
taking the information and providing it “to the Commissioner in a way that
would make sure we were within ex parte
rules.” She was sure that she did not
give a copy of the Verizon Memo or verbatim information or questions contained
in the Verizon Memo to Respondent.
18. Michelle Robinson, who prepared the Verizon
Memo for Verizon, also denied giving a copy of, or the information contained
in, the Verizon Memo to Respondent.
19. Other than blaming his aide for giving him ex parte material at a pre-agenda
meeting which he claims not to remember, Respondent has no explanation for the
questions and comments he recited at the October 14, 2002, PSC special agenda
conference. While admitting that the
questions and comments were not his own, Respondent never told anyone that they
were not his.
20. Ms. Griffin was in attendance at the October
14, 2002, special agenda conference.
When she heard some of the questions raised by Respondent regarding
Verizon’s position on the issue, she was surprised because, based upon what she
had read and studied of the Verizon Memo, Respondent’s comments sounded very
similar to the Verizon Memo.
21. While Ms.
22. Notwithstanding Respondent’s lack of recall,
the testimony of Ms. Griffin provided direct evidence that Respondent was
evasive when confronted with his comments.
23. In the year following the October 14, 2002
PSC agenda conference, some of Respondent’s comments, which Respondent now
admits were almost identical to those contained in the Verizon Memo, were
quoted and attributed to Respondent in a brief that Verizon filed in the
Supreme Court of Florida. When newspaper
articles came out reporting the incident, Respondent “had no external
reaction.” He did not respond to the
newspapers and never told anyone that the questions and comments were not his
own. He did not give notice to the
parties that he had received the questions and comments, and never placed any
document on the record disclosing the source of those questions and
comments.
24. As established by the testimony and the
evidence, Respondent knew at the time that he read the questions and comments
at the PSC meeting that they were from an interested party to the proceeding.
25. Respondent knowingly
received an ex parte
communication from a utility company regarding a matter that was being
considered at a PSC proceeding, and he failed to place the communication on the
record within 15 days of its receipt.
CONCLUSIONS OF LAW
26. The
Division of Administrative Hearings has jurisdiction over the parties and the
subject matter of this proceeding. §
120.57(1),
27. Section 350.042(7)(a), Florida Statutes,
provides that “[i]t shall be the duty of the Commission on Ethics to receive
and investigate sworn complaints of violations of this section pursuant to the
procedures contained in ss. 112.322-112.3241.”
In turn, Section 112.322, Florida Statutes, and Florida Administrative
Code Rule 34-5.0015, authorize the Commission on Ethics to conduct
investigations and to make public reports on complaints concerning violations
of Part III, Chapter 112, Florida Statutes (the Code of Ethics for Public
Officers and Employees).
28. 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.
29. As noted by the Supreme Court of Florida:
[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 (
30. Section 350.042, Florida Statutes (2002),
which is applicable to this proceeding, provides:
350.042 Ex parte communications.—
(1) A
commissioner should accord to every person who is legally interested in a
proceeding, or the person's lawyer, full right to be heard according to law, and,
except as authorized by law, shall neither initiate nor consider ex parte
communications concerning the merits, threat, or offer of reward in any
proceeding other than a proceeding under s. 120.54 or s. 120.565, workshops, or
internal affairs meetings. No individual
shall discuss ex parte with a commissioner the merits of any
issue that he or she knows will be filed with the commission within 90 days. The provisions of this subsection shall not
apply to commission staff.
(2) The
provisions of this section shall not prohibit an individual residential
ratepayer from communicating with a commissioner, provided that the ratepayer
is representing only himself or herself, without compensation.
(3) This
section shall not apply to oral communications or discussions in scheduled and
noticed open public meetings of educational programs or of a conference or
other meeting of an association of regulatory agencies.
(4) If a
commissioner knowingly receives an ex parte communication
relative to a proceeding other than as set forth in subsection (1), to which he
or she is assigned, he or she must place on the record of the proceeding copies
of all written communications received, all written responses to the
communications, and a memorandum stating the substance of all oral
communications received and all oral responses made, and shall give written
notice to all parties to the communication that such matters have been placed
on the record. Any party who desires to
respond to an ex parte communication may do so. The response must be received by the
commission within 10 days after receiving notice that the ex parte
communication has been placed on the record. The commissioner may, if he or she deems it
necessary to eliminate the effect of an ex parte communication
received by him or her, withdraw from the proceeding, in which case the chair
shall substitute another commissioner for the proceeding.
(5) Any
individual who makes an ex parte communication shall submit to
the commission a written statement describing the nature of such communication,
to include the name of the person making the communication, the name of the
commissioner or commissioners receiving the communication, copies of all
written communications made, all written responses to such communications, and
a memorandum stating the substance of all oral communications received and all
oral responses made. The commission
shall place on the record of a proceeding all such communications.
(6) Any
commissioner who knowingly fails to place on the record any such
communications, in violation of the section, within 15 days of the date of such
communication is subject to removal and may be assessed a civil penalty not to
exceed $5,000.
(7)(a) It
shall be the duty of the Commission on Ethics to receive and investigate sworn
complaints of violations of this section pursuant to the procedures contained
in ss. 112.322-112.3241.
(b) If the
Commission on Ethics finds that there has been a violation of this section by a
public service commissioner, it shall provide the Governor and the Florida
Public Service Commission Nominating Council with a report of its findings and
recommendations. The Governor is authorized to enforce the findings and
recommendations of the Commission on Ethics, pursuant to part III of chapter
112.
(c) If a
commissioner fails or refuses to pay the Commission on Ethics any civil
penalties assessed pursuant to the provisions of this section, the Commission
on Ethics may bring an action in any circuit court to enforce such penalty.
31.
Taking elements derived from the above-quoted statute, it is concluded
that the Respondent violated Section 350.042, Florida Statutes (2002), in that
Respondent was a Public Service Commissioner; he knowingly received an ex parte communication relative to
the merits of an issue in a proceeding to which he was assigned; and, he
knowingly failed to place on the record that communication within 15 days of
the date from his receipt of such communication.
PENALTY
As Respondent cannot be removed from his
position with the PSC because he is no longer serving as a Public Service
Commissioner, the remaining penalty that can be imposed for Respondent’s
violation is a civil penalty not to exceed $5,000. § 350.042(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, Rudolph “Rudy” Bradley, violated
Section 350.042, Florida Statutes (2002), and imposing a civil penalty of
$5,000.00.
DONE AND ENTERED this 11th day of June, 2007, in
S
DON W. DAVIS
Administrative Law Judge
Division of Administrative Hearings
The
Fax Filing
www.doah.state.fl.us
Filed with the Clerk of the
Division of Administrative Hearings
this 11th day of June, 2007.
COPIES FURNISHED:
James H. Peterson III, Esquire
Office of the Attorney General
The Capitol, Plaza Level 01
Kaye Starling
Post Office Drawer 15709
Wilson Jerry Foster, Esquire
Law Offices of Wilson Jerry Foster
Phillip C. Claypool, General Counsel
Post Office Box Drawer 15709
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.