00-002536EC In Re: Glendell Russ vs. * Status: Closed Recommended Order on Thursday, February 15, 2001.

Summary: Respondent did not improperly use his position as a city commissioner to influence personnel decisions of the Quincy Police Department.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

IN RE: GLENDELL RUSS, )

)

Respondent. ) Case No. 00-2536EC

)

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 Tuesday, October

31, 2000, in Tallahassee, Florida.

APPEARANCES

For Advocate: James H. Peterson, III, Esquire

Office of the Attorney General

Plaza Level One, The Capitol

Tallahassee, Florida 32399-1050

For Respondent: Larry K. White, Esquire

Larry K. White, P.A.

1100 East Park Avenue

Tallahassee, Florida 32301

STATEMENT OF THE ISSUES

The issue for determination is whether Respondent, while a member of the Quincy City Commission, violated Subsection 112.313(6), Florida Statutes, by corruptly using, or attempting to use his official position as a Quincy City Commissioner in private meetings with Quincy City officials for the purpose of improperly influencing decisions at the Quincy Police Department to secure a special benefit for himself or others; and if so, what is the appropriate penalty.

PRELIMINARY STATEMENT

On April 21, 2000, the Florida Commission on Ethics issued

an Order Finding Probable Cause to believe that Respondent,

Glendell Russ, while a member of the Quincy City Commission,

violated Subsection 112.313(6), Florida Statutes, by corruptly

using his official position in private meetings with Quincy City

officials in an attempt to improperly influence decisions at the

Quincy Police Department for his personal benefit or the benefit

of others. On or about June 20, 2000, the case was forwarded to

the Division of Administrative Hearings for assignment to an

Administrative Law Judge to conduct the proceeding.

Prior to the final hearing, the parties submitted a Joint

Prehearing Stipulation which set forth a number of stipulated

facts which required no proof at hearing.

On the day of the hearing, Respondent filed a Motion to

Dismiss and a Motion for Official Recognition of certain findings

of fact set forth in the Recommended Order in In re: Carolyn

Ford , DOAH Case No. 99-2411EC. At hearing, the undersigned

denied the Motion to Dismiss and reserved ruling on the Motion

for Official Recognition. Upon consideration of the Motion for

Official Recognition, the Advocate's objection, and applicable

law, Respondent's Motion for Official Recognition is denied.

At the final hearing, the Advocate called six witnesses:

Robert Barkley, Rodney Moore, Marcus Dixon, Anthony Powell,

Robert Jackson, and Auburn Ford. The Advocate offered six

exhibits that were received into evidence. At the Advocate's

request and without objection, official recognition was taken of

the Quincy City Charter and related laws. Respondent testified

on his own behalf and called four witnesses: Keith Dowdell,

Leonard Griffis, Pamela Braynen, and Anthony Powell. Respondent

offered one exhibit that was received into evidence.

A Transcript of the proceeding was filed on November 20,

2000. At the conclusion of the hearing, the time set for filing

the proposed recommended orders was set for 10 days after the

Transcript was filed. Prior to that date, Respondent filed an

unopposed Motion for Extension of Time to submit the proposed

recommended orders. The motion was granted, and the time for

filing proposed recommended orders was extended to December 21,

2000. Subsequently, Respondent filed two additional unopposed

motions requesting further extensions. Both motions were

granted, and the time for filing proposed recommended orders was

extended to January 2, 2001, and then to January 3, 2001. Both

parties timely filed Proposed Recommended Orders under the

extended time frame.

FINDINGS OF FACT

1. Glendell Russ (Respondent), was elected to the City

Commission for the City of Quincy in Gadsden County, Florida, in

1997 and served in that capacity from April 1997 until February

22, 1999.

2. By virtue of his position as a City Commissioner for the

City of Quincy, Respondent was subject to the requirements of

Part III, Chapter 112, Florida Statutes, the Code of Ethics for

Public Officers and Employees (Code of Ethics).

3. While serving as a City Commissioner for the City of

Quincy, Respondent was subject to the provisions of the Quincy

City Charter.

4. In 1995, there was a car accident in Gadsden County,

Florida, that resulted in the death of two people, one of whom

was Respondent's cousin. Officer Jim Corder, a police officer

with the Quincy Police Department, was involved in the accident.

5. Respondent had several concerns related to the aftermath

of the 1995 fatal car accident. First, Respondent believed that

Corder was intoxicated at the time of the accident but was

escorted from the accident scene by Officer Glenn Beach, another

officer with the Quincy Police Department, prior to a blood

alcohol test being administered. Second, Respondent was

disturbed because he thought that Officer Robert Barkley of the

Quincy Police Department, who arrived at the accident scene after

the on-the-scene investigation was completed, seemed nonchalant

about the accident, despite the fact that there were two

fatalities. Finally, Respondent was convinced that the Quincy

Police Department wanted to cover up the facts surrounding the

accident.

6. Respondent was dissatisfied with the manner in which the

police department handled the investigation of the 1995 fatal car

accident. As a result thereof, he was a continuously outspoken

critic of the Quincy Police Department, including Robert Barkley.

7. Respondent's decision to run for City Commissioner was

motivated, in part, by his concern with the way the Quincy Police

Department had handled the investigation of the 1995 fatal car

accident involving the death of his cousin.

8. During Respondent's tenure on the Quincy City

Commission, he was persistent in his efforts to have an

independent investigation of the 1995 car accident. Eventually,

after Respondent was elected as a City Commissioner, the Quincy

City Commission authorized that an independent investigation be

conducted. However, the investigation was never completed

because police officers failed to cooperate with the

investigators.

9. At all times relevant to this proceeding, Robert

Barkley was employed as a police officer with the Quincy Police

Department. While so employed, Barkley also was grant

coordinator and had oversight responsibility for a truancy

program operated by the Quincy Police Department.

10. Anthony Powell worked as a coordinator of the truancy

program for approximately three years and, during that entire

time, was supervised by Barkley.

11. During an approximate three-month period of time in

early 1998, Barkley, as Powell's supervisor, disciplined Powell

at least three times. These disciplinary actions resulted in

Barkley's suspending Powell and issuing several written

reprimands to him. According to Barkley, he took the

disciplinary action because of Powell's failure to follow proper

procedures.

12. Two of the three disciplinary actions taken by Barkley

against Powell involved Respondent and occurred while Respondent

was a City Commissioner.

13. In 1998, but prior to May 19, 1998, Barkley disciplined

Powell for allowing Respondent on the premises of the truancy

center and using profane language in the presence of students.

Barkley was concerned that Respondent's conduct was disruptive to

the students and also believed that Respondent should not have

been on the premises because of certain things in his background.

14. Prior to Barkley's disciplining Powell for allowing

Respondent on the premises of the truancy center, Barkley had

written a note to Powell directing him to not allow Respondent in

the truancy center. Respondent learned of Barkley's directive

and, thereafter, went to the center and confronted Barkley and

accused him of taking that action because he disliked Respondent.

15. Again, in early 1998, Barkley disciplined Powell for

transporting a student from the truancy center to a house owned

by a friend of Respondent and having the youth retrieve a dead

cat from under the house. Respondent was with Powell when this

incident occurred. After Barkley learned about this incident, he

suspended Powell for several days and issued a written reprimand,

which was placed in Powell's personnel file.

16. Powell never denied that the "cat incident" occurred

but believed that Barkley's written report or reprimand

describing the incident was not completely accurate and contained

lies. Powell expressed his disagreement with Barkley and the

then-police chief about the report. However, there is no

indication that the report or written reprimand was changed to

address Powell's concerns.

17. On May 19, 1998, the then-Quincy City Manager Ken

Cowens appointed Robert Barkley as interim police chief of the

Quincy Police Department. Barkley served as interim police chief

from May 19, 1998, until about May 29, 1998, when City Manager

Cowens named Barkley as permanent police chief of the Quincy

Police Department.

18. Pursuant to the Quincy City Charter, the City

Commission appoints the City Manager and the City Manager has

sole authority to hire and fire department heads. Among the

department heads that the City Manager is authorized to hire and

to terminate is the Quincy Police Department's chief of police.

19. At or near the time Barkley was appointed interim

police chief, the Commission had been presented with and/or had

approved a resolution to remove Ken Cowens as city manager. At

or near this time, it was also widely rumored that Anthony Powell

would be the next City Manager of Quincy.

20. Respondent and Powell were good friends and Respondent

supported Powell's appointment as City Manager.

21. Barkley had heard the rumor that Powell would be the

next Quincy City Manager and believed that if Respondent could

have his way, Powell would, indeed, become the next City Manager.

22. On or about May 19 or 20, 1998, after Barkley was named

interim police chief, he called Respondent and requested that

Respondent meet with him. On May 20, 1998, after Respondent

called the City Manager and got permission to speak with Barkley,

he went to the police department to meet with Barkley. The

meeting was also attended by Powell, who like Respondent, had

been contacted by and asked to meet with Barkley. Later, Auburn

Ford, joined the meeting.

23. Auburn Ford is the son of Quincy City Commissioner

Carolyn Ford and had been Respondent's campaign manager for

Respondent's successful bid to become a Quincy City Commissioner

in 1997.

24. Barkley called the May 1998 meeting, attended by

Respondent, Powell, and Ford, in an effort to "bury the hatchet."

This "bury the hatchet" meeting called by Barkley was an effort

to gain support for him to become permanent police chief.

25. When Barkley called the May 20, 1998, meeting, he was

aware that Powell was widely rumored to become the next Quincy

City Manager; that Powell and Respondent were friends; and that

Respondent had spoken openly about Powell's becoming the next

City Manager. Moreover, Barkley knew that the City Manager had

the authority to hire and fire the Quincy police chief.

26. In light of the three disciplinary actions Barkley had

taken against Powell in 1998, it would have been reasonable to

assume that Powell's appointment as City Manager would likely

jeopardize Barkley's chances of being named permanent police

chief.

27. There was friction between Respondent and Barkley that

may have resulted from various factors or circumstances. For

some time, Respondent had openly criticized the Quincy Police

Department, including Barkley, for what Respondent perceived as a

cover-up of the events surrounding the investigation of the 1995

fatal car accident. Also, in early 1998, Respondent had

confronted Barkley after Barkley directed Powell not to allow

Respondent on the truancy center premises. Finally, Respondent

believed that, in the past, Barkley had lied and made false

accusations against him.

28. During the May 1998 "bury the hatchet" meeting, Barkley

urged Respondent to let "bygones be bygones." However,

Respondent rejected that suggestion and stated that as far as he

was concerned, it was "war" between the two of them.

29. Also, during the May 20, 1998, meeting, Barkley

volunteered to remove disciplinary information from Powell's

personnel file. Powell did not respond to Barkley's offer

because he believed that such action was legally impermissible.

30. Respondent never requested, directed, or suggested that

Barkley fire or take any other disciplinary action against

Officer Corder or any other police officer.

31. The May 1998 meeting ended with no agreement among

Respondent, Powell, and Barkley to put their past disputes behind

them.

32. Powell was appointed interim City Manager of Quincy in

June 1998. Shortly thereafter, the City Commission appointed

Powell as City Manager for a one-year term.

33. The City Manager is empowered to appoint the chief of

police for the City of Quincy, who is subject to the direction

and supervision of the Quincy City Manager.

34. About a week after Powell's appointment as City

Manager, he removed Barkley as chief of police. Powell's

decision to remove Barkley was within the authority granted to

him by the Quincy City Charter.

35. At all times relevant to this proceeding, Section

2.04(b) of the Quincy City Charter prohibited the City Commission

or Commissioners from dictating the appointment or removal of

city administrative officers or employees whom the City Manager

or any of his subordinates is empowered to appoint. That section

also provides that the City Commission may express their views

and discuss with the City Manager anything pertaining to the

appointment and removal of its officers and employees in City

Commission meetings.

36. At all times relevant to this proceeding, Section

2.04(c) of the Quincy City Charter required that the Commission

or its members deal with city officers and employees who are

subject to the direction and supervision of the City Manager

solely through the City Manager. That section also prohibits the

City Commission or its members from giving orders to such

officers or employees either publicly or privately.

37. During Powell's tenure as City Manager, he had an

"unwritten policy" that allowed City Commissioners to meet with

and talk to city department heads in the presence of the City

Manager. This procedure was based on Powell's interpretation of

the Quincy City Charter.

38. Auburn Ford, a long-time friend of Powell and

Respondent, had aspirations of serving with the Quincy Police

Department as chief of police. Prior to Powell's being appointed

City Manager, both Powell and Respondent were aware of Ford's

desire to become the police chief.

39. Although Respondent personally supported Ford in his

desire to become police chief, he never attempted to influence

City Manager Powell to appoint Ford to that position.

Notwithstanding his "100 percent" support of Ford, Respondent

realized that the City Manager had the sole authority and

discretion to make that decision. Accordingly, Respondent

neither directed nor attempted to influence the City Manager to

hire Ford as police chief.

40. Despite City Manager Powell's friendship with Ford, in

June 1998, after Powell removed Barkley as chief of police, he

appointed Rodney Moore, not Ford, as the chief of police for the

Quincy Police Department.

41. On June 24, 1998, soon after Moore was appointed police

chief, he promoted Glenn Beach of the Quincy Police Department

from the rank of captain to major. Later that day, someone from

the police department called and advised Respondent of Beach's

promotion. Respondent then immediately called Powell to inquire

about the promotion and was told that Powell knew nothing about

Beach being promoted.

42. Later, on June 24, 1998, at about 5:30 p.m., Chief

Moore and City Manager Powell met in the Powell's office to

discuss Beach's promotion. Powell explained that he had no

problem with the promotion of Beach. However, he told Moore that

the promotion had to be rescinded because proper procedures had

not been followed.

43. The position to which Beach was being promoted was a

new position that was not currently included in the City of

Quincy's organizational structure. Powell's interpretation of

applicable policy was that before a person could be hired to a

new position within the City of Quincy, the position would have

to be approved and included in the City's budget. In this

instance, the position had not been approved by the City

Commission or included in its budget.

44. Based on his interpretation of the City's applicable

policy, Powell directed Moore to rescind Beach's appointment

until the Commission approved the position and included it in the

budget. Powell's decision to direct Chief Moore to rescind

Beach's promotion and, thereby, reject the promotion was within

his authority. Chief Moore agreed with City Manager Powell and

rescinded Beach's promotion. A memorandum rescinding the

promotion was prepared by Chief Moore the next day.

45. Beach was promoted two years later, after the City

Commission approved the position and included it in the City's

budget.

46. On June 24, 1998, Respondent came to City Manager

Powell's office while City Manager Powell and Chief Moore were

meeting, but after Powell and Moore had already discussed and

resolved the matter related to Beach's promotion. Nonetheless,

Respondent was angry that consideration was being given to

promoting Captain Beach. Respondent told City Manager Powell

that the promotion of Captain Beach seemed inappropriate in light

of the City Commission's recent decision to have an independent

investigation conducted of the 1995 car accident. Respondent

believed that Captain Beach was part of the focus of the

independent investigation because allegedly he had escorted

Officer Corder, the police officer involved in the 1995 accident,

from the accident scene before a blood alcohol test could be

performed. Respondent argued that Beach should not be considered

for a promotion until the independent investigation was

completed.

47. With the Commission's recent appointment of Powell as

City Manager, Respondent had expected positive changes in the

City of Quincy. However, Respondent did not view the proposed

promotion of Beach as a step in that direction. Respondent told

City Manager Powell that if things were going to continue as they

had in the past, the former city manager and the former police

chief should be brought back. Respondent also told Powell that

"things might not work out" for Powell, thereby implying that

Powell's contract might not be approved when it came up to the

City Commissioner for a final vote.

48. Powell, who had been friends with Respondent for about

15 years, knew that Respondent was very angry at the time he made

the comments and did not perceive Respondent's comments as a

threat to his job.

49. Even though Chief Moore was in the City Manager's

office when Respondent made the comments described in paragraphs

46 and 47, the comments were directed to City Manager Powell, and

not to Chief Moore.

50. Russ never directed or attempted to influence City

Manager Powell or Chief Moore to rescind the promotion of Beach.

51. At or near the time Moore was appointed chief of

police, Ford applied for a position with the Quincy Police

Department as a reserve officer. A reserve officer must be a

certified law enforcement agent, and service as a reserve officer

with a law enforcement agent counts toward maintaining law

enforcement standards.

52. Reserve officers with the Quincy Police Department work

on an as-needed basis, typically eight hours a month. They work

either on a voluntary basis or at an hourly rate of about $11.00

an hour.

53. The reserve officer position applied for by Auburn Ford

was for eight hours per month and was essentially for Ford to

maintain his credentials and not for pay.

54. Chief Moore had some reservations about hiring Ford

because Ford's mother, Carolyn Ford, was a member of the City

Commission and because of concerns related to Ford's employment

history. City Manager Powell met with Chief Moore regarding

Ford's possible employment with the police department. After

reviewing the matter, Powell advised Chief Moore that if Ford met

all the prescribed state standards, there was no reason why he

could not be hired.

55. Respondent was an advocate for Auburn Ford's getting a

job with the Quincy Police Department and was persistent in

making inquiries about Ford's application for a reserve officer

position.

56. Ford never asked Respondent to call City Manager Powell

or Chief Moore about hiring him as a reserve officer. However,

Respondent recalled that Ford told him that he had called the

police department almost daily to inquire about his application

and had been told by Moore or someone in that office that the

application had not been processed.

57. Apparently, some time after Ford submitted his

application, Respondent contacted City Manager Powell and Chief

Moore regarding the status of Ford's application.

58. During the summer of 1998, after Ford submitted his

application to the Quincy Police Department, Respondent

"mentioned" the application of Ford to Powell a couple of times a

day for about a month. Powell considered and interpreted

Respondent's numerous inquiries about Ford's pending application

to be a concern about the application review process and not

demands that Ford be hired by the Quincy Police Department.

59. Several weeks after Ford's application had been

submitted to the Quincy Police Department, Respondent also made

inquiries or comments to Chief Moore about Ford's application.

Except in one instance, these inquiries or comments were made

outside the presence of the City Manager. Respondent made two

such inquiries of Moore when both men were at the local

recreation center. In another instance, immediately after a City

Commission meeting, Respondent asked Chief Moore about the delay

in processing Ford's application. Finally, on July 20, 1998,

during two separate telephone conversations, Respondent asked

and/or made comments to Chief Moore about Ford's application.

60. During the summer of 1998, Respondent went to the

recreation center on a regular basis. Sometimes when Respondent

was at the center and saw Chief Moore and Marcus Dixon, a friend

of Moore's, in the weight room, he would stop and talk to them.

Once Respondent asked Chief Moore about the status of Ford's

application. In a second conversation, Respondent asked why the

application review process was taking so long. Respondent

further commented that he believed someone had "dropped the ball"

on the processing of Ford's application and that if he found out

that had happened, "heads were going to roll."

61. In the conversations between Respondent and Chief Moore

at the recreation center, Respondent's inquiries and comments

focused on the processing of Ford's application. The credible

testimony of Dixon, who heard both conversations, was that

Respondent's questions and comments about Ford's application

focused on the length of time it was taking the police department

to process the application and Respondent's belief that it was

unfair to "stall" or purposely delay the processing of Ford's

application.

62. During the conversations Respondent had with Chief

Moore at the recreation center, Respondent never directed or

tried to influence Chief Moore to hire Ford. Neither did

Respondent threaten to have Chief Moore fired if Ford were not

hired or promise anything to Chief Moore if Ford were hired.

63. In the summer of 1998, after a City Commission meeting,

Respondent approached Chief Moore and asked why Ford's

application had not been processed. At that time, Chief Moore

was going to the scene of a disturbance and did not have time to

discuss the matter with Respondent. As a result, this encounter

lasted about "a split second."

64. During this very brief conversation between Respondent

and Chief Moore after the Commission meeting, Respondent never

directed Chief Moore to hire Ford nor did he threaten to fire

Chief Moore if he did not hire Ford.

65. On July 20, 1998, at about 1:40 p.m., about one month

after Ford applied for the position of reserve officer,

Respondent made two telephone calls to Chief Moore. In the first

telephone conversation, Respondent asked Chief Moore what the

"hold up" was on Ford's application. Respondent also told Moore

that "he had problems" because Ford's application had not been

processed in a timely manner. Finally, Respondent told Chief

Moore that the application should be processed as any other

application and urged Moore to "just get it done." During this

conversation, Respondent also told Chief Moore that he was very

upset because he had just been fired from his job for no apparent

reason.

66. Respondent's comments regarding Ford's application and

described in paragraph 65 were made in the context and tone of a

"casual conversation." The telephone conversation was short,

and most of Respondent's comments focused on his being upset

about getting fired from his job earlier that day. Chief Moore

did not interpret Respondent's inquiries or comments concerning

Ford's application as a demand that he hire Ford. Moreover,

Chief Moore did not perceive that Respondent was threatening his

job if he did not hire Ford.

67. Respondent telephoned Chief Moore a second time on July

20, 1998, at about 4:40 p.m., from Commissioner Carolyn Ford's

office, where he had been working as a volunteer to set up a

computer lab. Respondent began asking Chief Moore about the

police department's application process and Ford's application.

As Chief Moore began explaining the process and the need for a

background check, Respondent told Chief Moore to hold on and talk

to Commissioner Ford about her son's application.

68. By the first week in August 1998, Respondent believed

that Ford's application had been pending for about two months

with no action by the Quincy Police Department. At Respondent's

request, a meeting was held that week with City Manager Powell,

Chief Moore, and Respondent. The meeting was held in the City

Manager's Office and comported with Powell's "unwritten policy"

that commissioners could meet with department heads if the City

Manager were present.

69. In the August 1998 meeting, Respondent made several

complaints to City Manager Powell about the police department.

Respondent expressed concern that black police officers within

the department were not being promoted. He also questioned why

Ford's application was not being processed in a more timely

manner. Finally, Respondent complained about how long it took

the police department to give him an incident report. The

incident to which Respondent was referring involved someone

"bleaching" the convertible top of his car on July 16, 1998,

while it was parked in front of the Quincy City Hall. Respondent

indicated that despite his making numerous requests for the

incident report, the police department did not give him the

report until August 3, 1998, more than two weeks after the

incident occurred.

70. At the August 1998 meeting described in

paragraphs 68 and 69, Chief Moore, who had been police chief for

not more than two months, felt intimidated by the manner and tone

that Respondent communicated his concerns about the police

department. Even though Respondent made the comments in the

presence of both Chief Moore and City Manager Powell, Moore

believed that Respondent's comments were directed to him since he

was responsible for all the hiring, firing, and promotion

decisions of the police department.

71. Ford was Respondent's long-time friend and campaign

manager as well as a constituent of Respondent, as he lived in

the district that Respondent represented on the City Commission.

72. Respondent acknowledged that he advocated for Ford as

he would have for any of his constituents. In this case,

Respondent was concerned about the time it took the police

department to process the application and inform the applicant of

its decision, irrespective of whether that decision was to hire

or not hire the person.

73. Respondent's inquiries and advocacy regarding Ford's

application related to the application process. Although not

necessarily true, Respondent believed that Ford's application was

being unfairly delayed and thought that the application could and

should be processed in a more timely manner.

74. In this case, Respondent simply believed that the

application review process took too long and that it was unfair

not to let Ford know whether he was going to be hired.

75. Respondent did not direct or attempt to influence

Chief Moore or City Manager Powell to hire Auburn Ford.

Moreover, Respondent never threatened the job of Chief Moore or

City Manager Powell by conditioning their continued employment on

hiring Auburn Ford.

76. Mere inquiry by a City Commissioner to a city

department head regarding the status of someone's application for

a job within that department, or even a recommendation by a City

Commissioner for the hiring of an applicant is not, per se,

improper. In fact, it was not unusual for City Commissioners to

be listed as references on individuals' employment applications

for positions with the City of Quincy.

77. Ford was eventually hired based upon Chief Moore's

recommendation to City Manager Powell.

CONCLUSIONS OF LAW

78. The Division of Administrative Hearings has

jurisdiction over the parties and the subject matter of this

proceeding. Section 120.57(1), Florida Statutes.

79. Section 112.322, Florida Statutes, and Rule 34-5.0015,

Florida Administrative Code, authorize the Commission on Ethics

to conduct investigations and to make public reports on

complaints concerning violations of Part III, Chapter 112,

Florida Statutes (Code of Ethics for Public Officers and

Employees).

80. The burden of proof, absent a statutory directive to

the contrary, is on the party asserting the affirmative of the

issue in the proceedings. Department of Transportation v. J.W.C.

Company, Inc. , 396 So. 2d 778 (Fla. 1st DCA 1981); Balino v.

Department of Health Rehabilitative Services , 348 So. 2d 349

(Fla. 1st DCA 1977). In this proceeding, it is the Commission,

through its Advocate, that is asserting the affirmative that

Respondent violated Subsection 112.313(6), Florida Statutes.

Therefore, the burden of establishing by clear and convincing

evidence the elements of Respondent's violation is on the

Commission. Lantham v. Florida Commission on Ethics , 694 So. 2d

83 (Fla. 1996), citing Department of Banking and Finance v.

Osborne Stern , 670 So. 2d 932 (Fla. 1996); Ferris v. Turlington ,

510 So. 2d 292 (Fla. 1987).

81. As noted by the Supreme Court of Florida:

Clear 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 (Fla. 1994), quoting Slomowitz

v. Walker , 429 So. 2d 797, 800 (Fla. 4th DCA 1983).

82. It is alleged that Respondent violated Subsection

112.313(6), Florida Statutes, by improperly using or attempting

to use his position as a City Commissioner to influence the

firing of Officer Jim Corder, the hiring of Auburn Ford, the

reversal of Captain Beach's promotion, and the removal of

reprimands from Anthony Powell's personnel file.

83. Subsection 112.313(6), Florida Statutes, provides in

pertinent part the following:

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.

84. The term "corruptly" is defined by Subsection

112.312(9), Florida Statutes, 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.

85. In order to establish a violation of

Subsection 112.313(6), Florida Statutes, the following elements

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

official position or any property or

resources within his trust, or

b) performed his official duties.

3. Respondent's actions must have been taken

to secure a special privilege, benefit or

exemption for himself or others.

4. Respondent must have acted corruptly,

that is, with wrongful intent and for the

purpose of benefiting himself or another

person from some act or omission which

was inconsistent with the proper

performance of his public duties.

86. The first element (that Respondent is a "public

officer") required to show a violation of Subsection 112.313(6),

Florida Statutes, has been met by stipulation of parties.

87. To establish a violation of Subsection 112.313(6),

Florida Statutes, it must next be established that Respondent

used or attempted to use his official position to secure a

special privilege or benefit for himself or others. These

elements have not been proven.

88. The evidence adduced at hearing failed to clearly and

convincingly establish that Respondent committed the acts that

form the underlying basis for the allegations. Specifically, the

evidence failed to establish that Respondent used or attempted to

use his position as a Commissioner to influence the hiring of

Auburn Ford, Jr., the firing of Officer Corder, the reversal of

Captain Beach's promotion, and the removal of reprimands from

Anthony Powell's personnel file.

89. In sum, the evidence at the final hearing failed to

clearly and convincingly show that Respondent used or attempted

to use his position to secure a special privilege for himself or

others.

90. Based on the foregoing conclusions, the second and

third elements necessary to prove a violation of Subsection

112.313(6), Florida Statutes, have not been established.

Therefore, it is unnecessary to address the fourth element noted

in paragraph 85 above.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that a final order and public report be entered

finding that Respondent, Glendell Russ, did not violate

Subsection 112.313(6), Florida Statutes.

DONE AND ENTERED this 15th day of February, 2001, 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

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 15th day of February, 2001.

COPIES FURNISHED :

Sheri L. Gerety, Agency Clerk

Commission on Ethics

2822 Remington Green Circle, Suite 101

Post Office Box 15709

Tallahassee, Florida 32317-5709

Philip C. Claypool, General Counsel

Commission on Ethics

2822 Remington Green Circle, Suite 101

Post Office Box 15709

Tallahassee, Florida 32317-5709

James H. Peterson, III, Esquire

Office of the Attorney General

The Capitol, Plaza Level 01

Tallahassee, Florida 32399-1050

Larry K. White, Esquire

Larry K. White, P.A.

1100 East Park Avenue

Tallahassee, Florida 32301

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.