RECOMMENDED ORDER
This cause came on for final hearing before Harry L. Hooper, Administrative Law Judge with the Division of Administrative Hearings, on April 16, 2008, in Palatka, Florida.
APPEARANCES
For the Florida Commission on Ethics:
Jennifer M. Erlinger, Esquire 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
It was alleged that Cheryl W. Keel (Ms. Keel) misused a State of Florida purchasing card provided to her by the St. Johns River Water Management District (District), prior to her resignation in December 2004 and on two occasions subsequent to her resignation. It was further alleged that she misused the District's e-mail system. It was alleged that her actions violated the Code of Ethics for Public Officers and Employees (Code). The District's inspector general investigated the matter and eventually referred his findings to the Florida Commission on Ethics (Commission) in a complaint filed on July 8, 2005.
The Commission investigated the complaint and, subsequent to receiving the Advocate's Recommendation dated September 18, 2006, rendered an Order Finding Probable Cause that was filed on October 25, 2006.
The Order Finding Probable Cause found only that Ms. Keel misused her purchasing card in violation of the Code. The Order Finding Probable Cause and allied papers were forwarded to the Division of Administrative Hearings and filed on February 7, 2008. The hearing was set for April 16, 2008, and heard as scheduled.
At the hearing, the Advocate presented the testimony of two witnesses and offered 19 exhibits into evidence. A Transcript was filed on April 29, 2008. After the hearing, the Advocate timely filed her Proposed Recommended Order on May 9, 2008. Respondent did not file anything.
References to statutes are to Florida Statutes (2005) unless otherwise noted.
FINDINGS OF FACT
1. The District is a state agency involved with the management of the water resources of several Northeast Florida counties.
2. Ms. Keel is a resident of Palatka, Florida, and is a former employee of the District. Her name was Cheryl L. Worgum when she began working for the District in December 1997, as a Business Resource Specialist.
3. During times pertinent, Ms. Keel held the position of Business Resource Specialist II. Her duties included purchasing supplies on behalf of the District. She was issued a State of Florida purchasing card to facilitate the accomplishment of her duties. When she was issued the purchasing card on August 14, 2002, Ms. Keel signed a cardholder agreement to the effect that she understood certain purchases were prohibited and that she would adhere to the District's purchasing card policy.
4. The District's purchasing card policy provided that the purchasing card would be used for District needs only. The policy made it clear that the purchasing card was not provided to Ms. Keel so that she could supplement her income. Ms. Keel understood the policy.
5. While employed by the District in 2003 and 2004, and in January 2005 on two occasions, which were subsequent to her resignation on December 30, 2004, Ms. Keel made purchases totaling $19,659.09 for her own personal benefit. These purchases included items of apparel, school supplies, lamps, and electronics, among other items that were not acquired for the benefit of the District.
6. Ms. Keel submitted a letter of apology to the District dated June 21, 2005. In that letter, she accepted responsibility for her actions. As of December 2007, Ms. Keel had repaid only $1,400 of the $19,659.09 that she had wrongfully obtained.
CONCLUSIONS OF LAW
7. The Division of Administrative Hearings has jurisdiction over the subject matter of and the parties to this proceeding. § 120.57(1), Fla. Stat. (2007).
8. 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 Part III, Chapter 112, Florida Statutes, which is known as the Code of Ethics for Public Officers and Employees.
9. 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). Therefore, the Advocate has the burden of proof.
10. In order to prevail, the Advocate must prove a violation of the Code by clear and convincing evidence. Latham v. Florida Comm'n on Ethics, 694 So. 2d 83 (Fla. 1st DCA 1997).
11. Subsection 112.313(6), Florida Statutes, provides as follows:
§ 112.313. Standards of conduct for public officers, employees of agencies, and local government attorneys--
* * *
(6) MISUSE OF PUBLIC POSITION. --No public officer, employee of an agency, or local government attorney shall corruptly use or attempt to use his or her official position or any property or resource which may be within his or her trust, or perform his or her official duties, to secure a special privilege, benefit, or exemption for himself, herself, or others. This section shall not be construed to conflict with s. 104.312.
12. The term "corruptly" is defined by Subsection 112.312(9), Florida Statutes, as that which is ". . . 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."
13. In order to conclude that Ms. Keel violated Subsection 112.313(6), Florida Statutes, the Advocate must establish the following elements:
1. Ms. Keel was a public officer or employee.
2. Ms. Keel used or attempted to use her official position or any property or resources within her trust.
3. Ms. Keel's actions were taken to secure a special privilege, benefit or exemption for herself or others.
4. Ms. Keel must have acted corruptly, that is, with wrongful intent and for the purpose of benefiting herself or another person from some act or omission which was inconsistent with the proper performance of her public duties.
14. Applying the foregoing analysis to this case, it is found that Ms. Keel was a public employee; that she used resources within her trust; that her actions were taken to secure a benefit to herself; and that she acted corruptly, in that her acts were inconsistent with the proper performance of her public duties.
15. It is, therefore, found as a fact that Ms. Keel violated Subsection 112.313(6), Florida Statutes, by wrongfully and corruptly using her State of Florida purchasing card to enrich herself.
16. The penalties applicable to a former public employee who has been found guilty of misusing her position include: public censure and reprimand; a civil penalty not to exceed $10,000; and restitution of any pecuniary benefit received because of the violation committed. § 120.57(1), Fla. Stat.
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 Cheryl W. Keel, violated Subsection 112.313(6), Florida Statutes; that she be required to pay a civil penalty in the amount of $10,000 and restitution in the amount of $18,259.09; and that she be publicly censured and reprimanded.
DONE AND ENTERED this 16th day of May, 2008, 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 16th day of May, 2008.
COPIES FURNISHED:
Jennifer M. Erlinger, Esquire Office of the Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050 Cheryl W. Keel 650 Bardin Road Palatka, Florida 32177 Kaye Starling, Agency Clerk Florida Commission on Ethics Post Office Drawer 15709 Tallahassee, Florida 32317-5709
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.