01-001820EC In Re: Timothy Holmes vs. * Status: Closed Recommended Order on Friday, November 9, 2001.

Summary: Respondent improperly used public property for private gain.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

IN RE: TIMOTHY HOLMES, )

)

Respondent. ) Case No. 01 - 1820EC

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative

Hearings, by its duly - des ignated Administrative Law Judge,

Jeff B. Clark, held a formal administrative hearing in this case

on September 27, 2001, in Miami, Florida.

APPEARANCES

For Advocate: Virlindia Doss, Esquire

Department of Legal Affairs

The Capitol, Plaza Level 01

Tallahassee, Florida 32399 - 1050

For Respondent: James H. Greason, Esquire

801 Brickell Avenue

9th Floor

Miami, Florida 3 3130

STATEMENT OF THE ISSUES

Whether the Respondent, Timothy Holmes, violated Section

112.313(6), Florida Statutes, by making personal, long distance

telephone calls at the expense of the City of Opa Locka, and, if

so, what penalty is appropriate.

PRELIMI NARY STATEMENT

On August 29, 2000, the Florida Commission on Ethics

entered an Order Finding Probable Cause to believe that the

Respondent, while serving as a member of the Opa Locka City

Commission, violated Section 112.313(6), Florida Statutes.

On May 9, 2001, this case was forwarded to Division of

Administrative Hearings. On May 16, 2001, the case was set for

final hearing on August 20 and 21, 2001, in Miami, Florida. The

Respondent sought a continuance on July 30, 2001; the case was

reset for Septembe r 27 and 28, 2001.

At the final hearing, the Advocate called six witnesses:

Lindsay Connor, Sandra Doughlin, Winston Motley, Arlington

Sands, Newall Daughtrey, and John Riley, and offered 11 exhibits

into evidence. Seven of these exhibits were admitted in to

evidence and marked AE1 - AE7. Four exhibits which were denied

admission were proffered and marked AP1 - AP4. Three other

documents were received as court exhibits, not as evidence but

as illustrative aids. These were marked CE1 - CE3.

The Respondent calle d two witnesses: Brian Hooten and Danny

Alvarez, and testified on his own behalf. The Respondent

offered one exhibit, which was admitted and marked RE1.

No transcript was ordered; both parties timely submitted

Proposed Recommended Orders.

FINDINGS OF FACT

1. The Respondent was elected to the Opa Locka City

Commission on November 8, 1994, and served one four - year term.

2. As a member of the Opa Locka City Commission, the

Respondent was subject to the requirements of Part III,

Chapter 112, Florida Statut es, the Code of Ethics for public

officers and employees. The Respondent was aware that as an

elected public official he had the responsibility to ensure that

public funds were spent for the public benefit.

3. The Opa Locka City Commission is the City of Opa Locka

policy - making body.

4. Prior to the Respondent's term in office, when City

Commissioners did not have offices at City Hall, the City

installed and paid for a telephone in each Commissioner's home.

5. While it is unclear how many Commissioners serving

concurrently with the Respondent had telephones which were

provided by the City, in December 1994, a telephone was

installed in the Respondent's home at City expense, and it

remained in his home throughout his term of office.

6. The City paid all bills for the referenced telephone

during the Respondent's term in office.

7. The ostensible public benefit obtained by installing a

telephone in the Respondent's home was to allow him to be

available to the administration and citizens of the City of Opa

Locka.

8. The City had no policy restricting telephone use to

official business; the Respondent testified that no one told him

not to use the telephone for personal calls.

9. It was suggested that, approximately 10 years prior to

the Respondent's term, the City Commission passed a resolution

whereby the City would pay for personal, long distance charges

for Commissioners. This is not credible. Section 116.041(5),

Florida Statutes, requires that every resolution of a governing

body be recorded in a book for that purpose. Absent unusual

circumstances, the best evidence of such a resolution would be

found in the official records of the City of Opa Locka. 1

10. During his term of office, the Respondent used the

City installed telephone to make many perso nal, long distance

telephone calls to family and friends. The only nexus these

calls had to the City of Opa Locka was that the Respondent

shared with his friends and family what was going on in the City

and how he was doing as a City Commissioner.

11. Wh en the telephone bill was received, the Respondent

would forward the cover of the bill showing the total amount due

to the City financial office for payment. These telephone bills

were paid without question; no one in the City administration

ever asked fo r "back up" information showing the nature of the

long distance charges.

12. The charges for the personal, long distance telephone

calls made by the Respondent on the City installed telephone

totaled $1,353 for the four years the Respondent was in office.

13. The personal, long distance telephone calls made by

the Respondent to his family and friends had nothing to do with

the business of the City of Opa Locka and no public purpose was

served by these telephone calls.

CONCLUSIONS OF LAW

14. The Divisio n of Administrative Hearings has

jurisdiction over the parties and the subject matter of this

proceeding. Section 120.57(1), Florida Statutes.

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

Florida Administrative Code, authorize the Commiss ion 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.

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

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

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

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

17. The standard of proof in a proceeding in which the

Commission on Ethi cs seeks penalties under Section

112.317(1)(a), Florida Statutes, is "clear and convincing"

evidence. Latham v. Florida Commission on Ethics , 694 So. 2d 83

(Fla. 1st DCA 1997).

18. The "clear and convincing" standard requires:

[T]hat 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. 4t h DCA 1983).

19. The Commission on Ethics has alleged that the

Respondent violated Section 112.313(6), Florida Statutes, which

provides:

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 co nflict with

s. 104.31 .

20. The term "corruptly" is defined by Section 112.312(9),

Florida Statutes, as follows:

"Corruptly" means done with a wrongful

intent and fo r 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.

21. Article II, Section 8 of th e Constitution of the State

of Florida advises: "A public office is a public trust. The

people shall have the right to secure and sustain that trust

against abuse."

22. The Florida Supreme Court, en banc , declared: "Our

organic law prohibits the expend iture of public money for a

private purpose." State v. Clay County Development Authority ,

140 So. 2d 576, 581 (Fla. 1962).

23. "It is essential to the proper conduct and operation

of government . . . that public office not be used for private

gain . . . ." Section 112.311(1), Florida Statutes, in part.

24. "It is declared to be the policy of the state that

public officers . . . are agents of the people and hold their

positions for the benefit of the public. . . . Such officers

. . . are bound to obser ve, in their official acts, the highest

standards of ethics consistent with this code and the advisory

opinions rendered with respect hereto . . . ." Section

112.311(6), Florida Statutes, in part.

25. Making personal, long distance telephone calls on a

t elephone provided by the City to be used for public purposes is

an inappropriate use of public property. Gordon v. Commission

on Ethics , 609 So. 2d 125 (Fla. 4th DCA 1992); In re: Julianne

Holt , 1997 WL 1052530 (Division of Administrative Hearings).

26. The Advocate has demonstrated by clear and convincing

evidence that the Respondent, an elected public official, over

his four - year term of office, made $1,353 in personal, long

distance telephone calls on a telephone provided by the City of

Opa Locka. In addition, he submitted telephone bills to the

City of Opa Locka which included charges for these personal,

long distance telephone calls and allowed the City of Opa Locka

to pay for these personal, long distance telephone calls. In so

doing, he used his elected position and property entrusted to

him for personal gain and violated the public trust. His

conduct is clearly corrupt and inconsistent with the proper

performance of his public duties.

RECOMMENDATION

Based on the foregoing Findings of Fact and Co nclusions of

Law, it is

Recommended that a final order and public report be entered

finding that the Respondent, Timothy Holmes, violated Section

112.313(6), Florida Statutes. It is further recommended that

the Respondent be ordered to pay a civil penalty of $1,000,

restitution of $1,353, and suffer a public censure and

reprimand.

DONE AND ENTERED this 9th day of November, 2001, in

Tallahassee, Leon County, Florida.

___________________________________

JEFF B. CLARK

Administrative Law Judge

Division of Adm inistrative 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 9th day o f November, 2001.

ENDNOTE

1/ Subsection 166.041(1)(b), Florida Statutes, states:

"'Resolution' means an expression of a governing body concerning

matters of administration, an expression of a temporary

character, or a provision for the disposition of a particular

item of the administrative business of the governing body";

Section 166.041(5), Florida Statutes, provides: "Every

ordinance or resolution shall, upon its final passage, be

recorded in a book kept for that purpose and shall be signed by

the p residing officer and the clerk of the governing body";

Section 166.041(6), Florida Statutes, states: "The procedure as

set forth herein shall constitute a uniform method for the

adoption and enactment of municipal ordinances and resolutions

and shall be t aken as cumulative to other methods now provided

by law for adoption and enactment of municipal ordinances and

resolutions. By future ordinance or charter amendment, a

municipality may specify additional requirements for the

adoption or enactment of ordin ances or resolutions or prescribe

procedures in greater detail than contained herein. However, a

municipality shall not have the power or authority to lessen or

reduce the requirements of this section or other requirements as

provided by general law."

COPIES FURNISHED :

Virlindia Doss, Esquire

Department of Legal Affairs

The Capitol, Plaza Level 01

Tallahassee, Florida 32399 - 1050

James H. Greason, Esquire

801 Brickell Avenue

9th Floor

Miami, Florida 33130

Kaye Starling, Agency Clerk

Commission on Et hics

2822 Remington Green Circle, Suite 101

Post Office Drawer 15709

Tallahassee, Florida 32317 - 5709

Philip C. Claypool, General Counsel

Commission on Ethics

2822 Remington Green Circle

Post Office Drawer 15709

Tallahassee, Florida 32317 - 5709

NOTICE O F 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.