01-004246EC In Re: Betty Burney vs. * Status: Closed Recommended Order on Wednesday, February 20, 2002.

Summary: Respondent failed to file CE Form 1, statement of financial interests, on two occasions. Fined $4,000.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

IN RE: BETTY BURNEY, )

)

Respondent. ) Case No. 01 - 4246EC

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative

Hearings, by its duly - design ated Administrative Law Judge,

Jeff B. Clark, held a formal hearing in this case on January 29,

2002, in Jacksonville, Florida.

APPEARANCES

For Advocate: Virlindia Doss, Esquire

Department of Legal Affairs

Th e Capitol, Plaza Level 01

Tallahassee, Florida 32399 - 1050

For Respondent: No appearance

STATEMENT OF THE ISSUES

Whether the Respondent violated Subsection 112.3145(2)(b),

Florida Statutes (1996 Supp.), by failing to file a CE Form 1,

Statement of Financial Interests, within 30 days of her

appointment to the Northeast Florida Regional Planning Council

and/or Subsection 112.3145(2)(b), Florida Statutes (1997), by

failing to timely file her 1997 CE Form 1, Statement of

Financial Inter ests.

PRELIMINARY STATEMENT

After consideration of a Report of Investigation of a

Complaint, and upon the recommendation of its Advocate, on

June 13, 2001, the Florida Commission on Ethics (Commission)

entered an Order Finding Probable Cause to believe t hat the

Respondent, Betty Burney, violated Section 112.3145, Florida

Statutes. On October 29, 2001, this case was forwarded to the

Division of Administrative Hearings for assignment to an

Administrative Law Judge. On October 30, 2001, the case was

assign ed to the undersigned Administrative Law Judge. On

November 26, 2001, the case was set for hearing on January 29

and 30, 2002, in Jacksonville, Florida.

The final hearing was held January 29, 2002, in

Jacksonville, Florida. The Advocate presented two wit nesses:

Brian Teeple, Executive Director, Northeast Florida Regional

Planning Council, and Frankie Knight, Candidate and Records

Director, Supervisor of Elections Office, Duval County, Florida,

and offered six exhibits which were received into evidence and

numbered Exhibits 1 - 6. The Respondent, Betty Burney, failed to

appear at the final hearing. A Transcript was ordered and filed

with the Division of Administrative Hearings on February 7,

2002. The Advocate submitted a Proposed recommended Order which

w as thoughtfully considered by the undersigned.

FINDINGS OF FACT

Based on the evidence presented, the following findings of

fact are made:

1. The Respondent, Betty Burney, was appointed to the

Northeast Florida Regional Planning Council on October 16, 199 6,

for a term expiring October 1, 1998.

2. The Northeast Florida Regional Planning Council is a

broad - based agency that is authorized by Section 186.504,

Florida Statutes. The Northeast Florida Regional Planning

Council has two primary statutory responsi bilities:

(1) reviewing local government comprehensive plans under Section

163.3174, Florida Statutes; and (2) coordinating the

developments of regional impact process under Section 380.06,

Florida Statutes. Both of these activities are land planning

re sponsibilities.

3. The Respondent, as a member of the Northeast Florida

Regional Planning Council, held a public position and, as such,

was subject to the requirements of Subsection 112.3145(l)(a),

Florida Statutes.

4. As a member of the Northeast Flor ida Regional Planning

Council, the Respondent was required to file a CE Form 1,

Statement of Financial Interests, within 30 days of her

appointment.

5. The Respondent was specifically advised of the

requirement to file a CE Form 1, Statement of Financial

Interests, within 30 days in her appointment letter. In

addition, the Executive Director of the Northeast Florida

Regional Planning Council reviewed this requirement with the

Respondent in an orientation session. The disclosure required

to be filed withi n 30 days would have been for calendar year

1995.

6. The Respondent did not file a CE Form 1, Statement of

Financial Interests, within 30 days of her appointment.

7. The Respondent filed a CE Form 1, Statement of

Financial Interests, dated April 21, 199 7, for the calendar year

1996.

8. As a member of the Northeast Florida Regional Planning

Council, the Respondent was required to file a CE Form 1,

Statement of Financial Interests, for the year 1997.

9. The 1997 CE Form 1, Statement of Financial Interes ts,

was due to be filed by July 1, 1998, with a grace period

extending to September 1, 1998.

10. The Respondent's name was on the list of persons

required to file financial disclosures provided to the Duval

County Supervisor of Elections by the Ethic s Commission in 1998,

filings required for calendar year 1997.

11. A CE Form 1, Statement of Financial Interests, was

mailed to the Respondent by the Duval County Supervisor of

Elections for 1997. When the Respondent failed to file her

financial disclosu re by July 1, 1998, the Duval County

Supervisor of Elections sent her a certified letter notifying

her of her delinquency.

12. The Respondent did not claim the certified letter, and

never filed a CE Form 1, Statement of Financial Interests, for

the year 1997.

CONCLUSIONS OF LAW

13. The Division of Administrative Hearings has

jurisdiction over the parties to and the subject matter of this

proceeding. Subsection 120.57(1), Florida Statutes.

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

Flori da Administrative Code, authorize the Commission 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).

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

Department of Health and Rehabi litative Services , 348 So. 2d 349

(Fla. 1st DCA 1981). The standard of proof in a proceeding in

which the Commission seeks penalties under Subsection 112.3145,

Florida Statutes, is "clear and convincing" evidence. Latham v.

Florida Commission on Ethics , 694 So. 2d 83 (Fla. 1st DCA 1997).

Therefore, the Advocate, on behalf of the Commission, has the

burden of establishing by clear and convincing evidence the

elements of the Respondent's alleged violations.

16. The Respondent was appointed to the Northeas t Florida

Regional Planning Council on October 16, 1996. Therefore, the

applicable law is Subsection 112.3145(2)(b), Florida Statutes,

(1996 Supp.), which provides:

Each state or local officer and each

specified state employee shall file a

statement of financial interests no later

than July 1 of each year. Each state or

local officer who is appointed and each

specified state employee who is employed

shall file a statement of financial

interests within 30 days from the date of

appointment or, in the case of a specified

state employee, from the date on which the

employment begins, except that any person

whose appointment is subject to confirmation

by the Senate shall file prior to

confirmation hearings or within 30 days from

the date of appointment, whiche ver comes

first.

17. Subsection 112.3145(l)(a)2, Florida Statutes (1996

Supp.), defines "local officer" as:

Any appointed member of a board;

commission; authority, including any

expressway authority or transportation

authority established by general la w;

community college district board of

trustees; or council of any political

subdivision of the state, excluding any

member of an advisory body. A governmental

body with land - planning, zoning, or natural

resources responsibilities shall not be

considered an advisory body.

18. As a member of a governmental body with land - planning

responsibilities, the Respondent was a "local officer" as the

term is defined in the statute. The testimony established that

she failed to make the initial disclosure required b y law, and

there is no question that she violated Subsection 112.3145(2),

as alleged.

19. The Respondent is alleged to have failed to make

disclosure in 1998, for calendar year 1997. While there were

some changes to Section 112.3145 in 1997, the applicab le

portions, quoted above, remained the same.

20. The Respondent remained a member of the Northeast

Florida Regional Planning Council in 1997 and, as a member and

"local officer," was required to make financial disclosure for

that year. Financial disclos ure for calendar year 1997 was due

July 1, 1998, with a grace period extending to September 1,

1998. The Respondent did not file the required financial

disclosure for calendar year 1997.

PENALTY

21. Section 112.317, Florida Statutes, sets out the

p enalties available on finding of a violation of the Code of

Ethics, with the maximum dollar amount being $10,000 per

allegation. In this case the Respondent exhibited complete

indifference to the filing requirements. Despite being advised,

both in her ap pointment letter and by the Executive Director of

the Northeast Florida Regional Planning Council, of the

necessity of filing within 30 days, she not only missed the

deadline but never filed at all. In April 1997, she did file a

CE Form 1, Statement of Fi nancial Interests (for calendar year

1996), the copy of which revealed on its face a large - print

warning that failure to make disclosure exposes the officer to

fines of up to $10,000. Nevertheless, the next year, she failed

to make required annual disclos ure.

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 the Respondent, Betty Burney, violated Subsection

112.3145(2)(b), Florida Statutes, in the tw o instances alleged,

and imposing a civil penalty of $2,000 for her failure to file a

CE Form 1, Statement of Financial Interests within 30 days of

her appointment to the Northeast Florida Regional Planning

Council and $2,000 for her failure to file her 19 97 CE Form 1,

Statement of Financial Interests for a total fine of $4,000.

DONE AND ENTERED this 20th day of February, 2002, in

Tallahassee, Leon County, Florida.

___________________________________

JEFF B. CLARK

Administrative Law Judge

Division of Admi nistrative 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 20th day o f February, 2002.

COPIES FURNISHED :

Betty Burney

2553 Soutel Drive

Jacksonville, Florida 32208

Virlindia Doss, Esquire

Department of Legal Affairs

The Capitol, Plaza Level 01

Tallahassee, Florida 32399 - 1050

Kaye Starling, Agency Clerk

Commission on Ethics

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

NOT ICE 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.