02-001231EC In Re: Rudy Maloy vs. * Status: Closed Recommended Order on Friday, April 25, 2003.

Summary: Evidence failed to prove clearly and convincingly that Respondent intentionally misused his official position as county commissioner to sexually harrass female subordinates, or solicited or received sexual favors to influence official judgment.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

IN RE: RUDY MALOY, ) Case No. 02 - 1231EC

)

Respondent. )

)

RECOMMENDED ORDER

This case came before Administrative Law Judge John G.

Van Laningham for final hearing on January 13 - 14, 17, 22, 24,

and 27, 2003, in Tallahassee, Florida.

APPEARANCES

The Advocate: Virlindia Doss, Esquire

Senior Assistant Attorney General

Attorney General’s Office

PL - 01, Th e Capitol

Tallahassee, Florida 32399 - 1050

For Respondent: Mark Herron, Esquire

Messer, Caparello & Self, P.A.

Post Office Box 1876

Tal lahassee, Florida 32302 - 1876

Bruce A. Minnick, Esquire

The Minnick Law Firm

Post Office Drawer 15588

Tallahassee, Florida 32317 - 5588

STATEMENT OF THE ISSUES

The issues in this case are, one, whether Respondent

corruptly used his of ficial positions to sexually harass female

subordinates in violation of Section 112.313(6), Florida

Statutes; and, two, whether Respondent solicited or accepted

sexual favors from female subordinates based upon any

understanding that his vote, official act ion, or judgment would

be influenced thereby, in violation of Section 112.313(2),

Florida Statutes.

PRELIMINARY STATEMENT

On July 31, 2001, the Florida Commission on Ethics

(“Commission”) determined that probable cause existed to believe

that Respo ndent Rudy Maloy, as an employee of the Florida

Department of Transportation, as a member of the Leon County

Commission, or both, had violated Sections 112.313(2) and

112.313(6), Florida Statutes. On March 25, 2002, the Commission

forwarded the case to th e Division of Administrative Hearings,

where the undersigned administrative law judge was designated to

preside over the formal hearing.

The evidentiary phase of the final hearing lasted five days

over a two - week period. The Commission’s Advocate cal led the

following witnesses: Edward Terrell (“Terry”) Denham, Laurie

Leonella Bradley, Deborah Lynn McKee, Joey Gordon, Sylvia

Porter, Ruth Dillard, Parwez Alam, Ophelia Morris Ross, Denise

Williams, Tina Williams, Traci Reed, Clifford Thaell, Marie

Matto x, Mary Kay Cariseo, and Stan Derzypolski. In addition,

the Advocate’s exhibits a, d, e, i, k, n, p, r, s, t, u, v, w,

x, y, z, and ee were received into evidence.

In his case, Respondent testified on his own behalf and

presented the following additional witnesses: Parwez Alam,

Clarence E. Moore, Jr., Traci Reed, Cynthia Turner, Herbert W.

Thiele, Terri O’Steen Cockhill, Stephanie Stephens Stanford,

Linda Summerlin, Michael O’Connell, Marie Mattox, Clifford

Thaell, Anthony Grippa, Robert Bruce Rackleff, Laurie Leonella

Bradley, and Jemaine Dickens. As well, Respondent’s exhibits a,

a - 1, b, c, d, e, f, g, h, m - 1, z, dd, ee, gg, ii, kk, ll, oo,

qq, rr, ss, and tt were admitted into evidence.

The parties stipulated to the admission of Joint Exhibits A

through E, inclusive. They also designated and cross - designated

portions of Respondent’s deposition testimony, which portions

were received in lieu of, and in addition to, Respondent’s live

testimony, as if read into the record at hearing.

The final hearing transcript was filed on February 25,

2003. Thereafter, each side timely filed a proposed recommended

order. Respondent also filed a Memorandum of Law Supporting

Dismissal of All Ethics Charges Based Upon Sexual Harassment.

All post - h earing submissions were carefully considered.

FINDINGS OF FACT

1. Respondent Rudy Maloy (“Maloy”) worked at the Florida

Department of Transportation (“DOT”) from 1980 until October 21,

2001. The last seven years of his career in state government

were s pent in DOT’s Turnpike District Planning Office, where

Maloy served as the “Public Involvement Manager.” In that

capacity, Maloy conducted workshops and public hearings around

the state concerning Turnpike projects.

2. In 1992, Maloy was elected to the Leon County

Commission as a Commissioner - at - Large. He was reelected twice,

in 1996 and 2000. At the time of the final hearing, Maloy was a

sitting Commissioner.

Laurie Bradley

3. When Maloy began working in the Turnpike District

Planning Office on Octo ber 7, 1994, Laurie Bradley (“Bradley”)

was already employed there in a career service position, namely,

administrative assistant to the director of planning. Though

she reported to the director, who was her immediate supervisor,

Bradley performed secreta rial functions for others in the

office, including Maloy after his arrival. Maloy did not have

the authority to promote Bradley, increase her salary, or let

her go, but he was one of Bradley’s “bosses” in the sense that

he could assign her tasks.

4. Mal oy and Bradley enjoyed a cordial relationship at

work, at least by outward appearances. For example, Maloy

frequently gave Bradley (and other co - workers) the complimentary

tickets to events such as hockey games and concerts that he, as

a County Commission er, routinely received but could not always

use himself. Bradley genuinely appreciated this token of

Maloy’s generosity. She thought Maloy was a very friendly

person, and she was friendly toward him. The two, in Bradley’s

words, “got along fine.”

5. At the final hearing, however, Bradley testified about

other acts and practices of Maloy’s that she considered

decidedly unfriendly. According to Bradley, Maloy touched her

inappropriately on a number of occasions, as follows:

a. Hugs. Bradley allege d that Maloy hugged her —— from

the side, around the waist —— many times, and that after awhile

this began to bother her.

b. Shoulder rubs. Bradley alleged that “fairly

often” Maloy stood behind her and rubbed her shoulders without

ever being invited or encouraged to do so.

c. Kisses. Bradley alleged that in or around

February 1996, Maloy kissed her on the cheek. Bradley also

claimed that a few weeks later, Maloy kissed her on the mouth,

while the two were alone together in an elevator going down at

the end of a workday.

d. Caresses. Bradley asserted that on one occasion

in May 1996, within hours, ironically, after they had received

sexual harassment training, Maloy taunted her by stroking her

arm and asking if such behavior constituted sexual har assment.

Bradley further averred that Maloy expressed his opinion that if

one person is bothered by another’s conduct in the workplace,

then the two should resolve the problem privately, rather than

reporting it to management. Finally, Bradley alleged th at, as

part of this episode of teasing, as she perceived it, Maloy

stated that he might be able to get her a job with the county

having a higher salary than her present position. 1

6. Maloy testified that he never touched Bradley

inappropriately, and he specifically denied her allegations to

the contrary. Thus, the evidence is irreconcilably in conflict

as to whether Maloy sexually harassed Bradley.

7. It is significant, therefore, that not a single witness

who testified at the final hearing had ac tually seen Maloy touch

Bradley improperly or in an unwelcome manner. In contrast, one

disinterested witness testified credibly that she observed

Bradley hug Maloy once or twice as a friendly gesture of thanks

for receiving tickets to a hockey game; this testimony is

accepted as true.

8. Several witnesses who lacked personal knowledge of any

misconduct on Maloy’s part were called to establish that Bradley

told others in confidence —— at or near the time of the events in

question —— that Maloy was allegedly h arassing her. There is no

doubt that Bradley did share such information with others. In

fact, her contemporaneous accusations were soon reported to

persons in DOT’s management, who understandably insisted that an

investigation be conducted. Consequently , Bradley submitted a

formal written complaint about Maloy to her employer, and DOT

investigated the matter. 2

9. That Bradley complained to others about Maloy in 1996

is circumstantial evidence from which one might infer that the

alleged sexual harassmen t occurred. 3 It is relatively weak

circumstantial evidence, however, because it ultimately rests

largely, if not entirely, on the credibility of the very same

person —— Bradley —— whose testimony it was offered to corroborate.

Indeed, drawing the inference l argely would beg the question of

Bradley’s veracity, for doing so would require that her veracity

(which Maloy disputes) be assumed. 4

10. Having carefully weighed and evaluated all of the

relevant, persuasive evidence, the undersigned is unable to

find , without hesitancy, that Maloy engaged in the conduct of

which Bradley has accused him. This determination, it should be

stressed, reflects the fact - finder’s judgment concerning the

weight of the evidence and nothing more; it is purposefully not

a findin g regarding what occurred or did not occur between

Bradley and Maloy. 5

11. The undersigned affirmatively finds that whatever

transpired between them, Maloy did not intentionally use or

attempt to use his official positions to secure a benefit for

himself through the alleged harassment of Bradley. 6

12. Likewise, it is found, by a preponderance of the

evidence, that there was no understanding between Maloy and

Bradley that Maloy’s votes, official actions, or judgment would

be influenced by any thing of val ue that Maloy solicited or

accepted from Bradley —— assuming he requested or received any

such thing, which was not clearly and convincingly proved.

Ophelia Morris

13. In December 1996, Ophelia Morris (“Morris”) replaced

Bradley as the director’s administr ative assistant in the

Turnpike District Planning Office. As had Bradley, Morris

served as a secretary to a number of managerial employees,

including Maloy. She was a career service employee. Maloy

could assign work to Morris, but he lacked the power to promote

or fire her.

14. Maloy and Morris became friends, and their friendship

deepened over time. By 1999, the two were sufficiently close

that Morris routinely confided in Maloy, sharing private

information with him concerning the personal problems s he was

having with her then - fiancé, whom she planned to (and did) marry

in May of that year.

15. In June 1999, soon after Morris got married, Morris

and Maloy began a mutually consensual sexual affair. While

there are some conflicts in the evidence re garding certain

immaterial details of their relationship, 7 the fact - finder is

convinced that neither party entered into this adulterous affair

as the result of coercion, bribery, intimidation, harassment, or

any type of untoward pressure, either express or implied;

rather, each wanted to have an extramarital sexual relationship

with the other.

16. Some time in the autumn of 1999, Maloy offered Morris

a job as his aide at the County Commission. 8 The undersigned is

not convinced that Morris had attempted, in any serious way, to

break away from the ongoing affair with Maloy before he made

this offer of employment. To the contrary, it is found that,

more likely than not, Morris remained satisfied with —— and had no

present intention to end —— the affair at the t ime Maloy proposed

to hire her as his aide. 9

17. Morris testified that, after initially demurring, she

finally agreed to accept the at - will position as Maloy’s aide,

wherein she would serve at his pleasure, but only on the

condition that she and Maloy must cease having sex once she was

on the county’s payroll. Morris claimed that Maloy reluctantly

assented to this condition.

18. Morris started working for Leon County as Maloy’s aide

on Monday, December 20, 1999. At a Christmas luncheon that

week, Morris met Denise Williams, a one - time aide to County

Commissioner Cliff Thaell who was then employed in the county’s

Public Works office. The two women quickly became friends and ——

within a matter of days —— lovers, commencing their own affair

shortly after the start of the new year.

19. In January 2000, some secrets were revealed. Denise

Williams divulged to Morris that she, Denise, had slept with

Maloy and asked whether Morris had done the same. Morris lied

to Denise Williams and denied that she had s lept with Maloy.

Shortly thereafter Morris confronted Maloy with Denise

Williams’s disclosure, and he admitted that the two had indeed

had sex with one another. That same month, Denise Williams

separately told Maloy about the affair she and Morris were

h aving.

20. Maloy was upset, angry, and hurt that Morris had been

seeing Denise Williams. He urged her to end the affair with

Denise Williams, but Morris did not immediately follow Maloy’s

counsel. By February 2000, Maloy’s ongoing interest in Morris’ s

sexual relationship with Denise Williams was starting to cause

Morris to become concerned that she would be fired because of

that affair. Consequently, Morris stopped talking to Denise

Williams, effectively suspending their relationship, and

informed Ma loy about the apparent breakup.

21. In the meantime, Morris and Maloy continued their

liaison, contrary to the supposed understanding that the sex

would stop. At hearing, Morris claimed that she continued to

participate in the affair with Maloy only b ecause she feared he

would fire her if she refused. However, while Maloy clearly had

the power summarily to dismiss Morris, there is no convincing

evidence that he ever expressly or impliedly threatened —— or even

intended —— to take such action if she declin ed to have sex with

him.

22. In June 2000, unbeknownst to Maloy, Morris resumed her

relationship with Denise Williams. Then, in July or August

2000, Denise Williams left a sexually explicit message for

Morris on the county’s voice mail system, in a voice mailbox

that Maloy checked on a routine basis. Maloy happened to hear

this message before Morris did, and he was not pleased.

23. The voice message incident was the beginning of the

end of Morris’s employment as Maloy’s aide. Before long —— and

for a va riety of reasons that are not relevant to this case ——

Morris resigned, effective September 8, 2000.

24. Two findings about Morris’s separation are made based

on a preponderance of the evidence. First, Maloy did not fire

Morris or force her to resign. S econd, Morris did not leave

because of her sexual relationship with Maloy. 10

25. The purported understanding, mentioned above, that the

affair between Maloy and Morris would terminate upon Morris’s

becoming Maloy’s aide is the factual linchpin of the

Co mmission’s case as it relates to Morris. The reason for this

is that Morris clearly and candidly testified (and the

undersigned has found) that her relationship with Maloy was

mutually consensual and not the product of sexual harassment

during the entire period she was employed with DOT. Thus, to

establish that Maloy either intentionally misused his public

positions to sexually harass Morris or, by sleeping with her,

improperly accepted sexual favors as consideration for some

official action, the Commissi on needed convincingly to

distinguish and separate the mutually consensual “DOT phase” of

the affair (which did not violate the ethics laws 11 ) from the

allegedly coercive “County Commission phase.”

26. The undersigned is not convinced, however, that the

subject affair comprised two such distinct phases. The evidence

is too much in conflict regarding whether Maloy and Morris had

an understanding about —— or even discussed —— ending their affair

effective the date Morris started working as Maloy’s aide for

th e undersigned to find without hesitancy that such occurred. 12

As a result, and in any event, it is not clear to the

undersigned fact - finder that the affair between Maloy and Morris

was coercive during the time she worked as his aide. The

evidence in this regard, as the undersigned has evaluated and

weighed it, is much too ambiguous to produce in the mind of the

trier of fact a firm belief or conviction that, beginning in

January 2000, Maloy was explicitly or implicitly forcing Morris

to have sex with him —— especially given the undisputed fact that

Morris freely and voluntarily had been sleeping with Maloy for

the previous six months because she wanted to. 13

27. Additionally, the undersigned affirmatively finds,

based on the greater weight of the evidence, that whatever

transpired between them, Maloy did not intentionally use or

attempt to use his official positions to secure a benefit for

himself through the alleged harassment of Morris.

28. Finally, it is found, also by a preponderance of the

evidence, that there was no understanding between Maloy and

Morris that Maloy’s votes, official actions, or judgment would

be influenced by any thing of value that Maloy solicited or

accepted from Morris.

Denise Williams

29. Denise Williams, introduced above, was an aide to

Commissioner Thaell from October 1997 through November 1999.

30. At hearing, Denise Williams testified that, in June

1998, Maloy —— whom she had known since the mid - 1980’s —— began to

“prey” on her after learning that she was separated from her

husband. She alleged that Maloy frequently came into her

office, uninvited, to look at her legs, rub her shoulders, or

give her a hug. She asserted that this attention was unwanted

but admitted that she never told Maloy to stop. To discourage

Maloy, she claimed, she tried to dress in a less feminine way.

At the same time, she acknowledged, she sometimes hugged Maloy

back. 14

31. The picture of Maloy that Denise Williams’s testimony

ultimately paints —— for which, it must be said, there is no

independent , eyewitness corroboration —— is that of a man pursuing

her with dogged persistence, ignoring her constant attempts to

turn him off. 15 Maloy, in contrast, suggested that Denise

Williams had taken the initiative, signaling her availability by

often making mil dly suggestive comments to him such as, “You

could have been my husband.”

32. It is not surprising, then, that while there is no

dispute that the two had casual sex at Denise Williams’s

apartment in February 1999, the evidence regarding how this came

abo ut is very much in conflict. Denise Williams testified that,

despite having no desire whatsoever for Maloy, she finally gave

in to his repeated requests for sex in order to “let him satisfy

his curiosity” in the hope that he then would quit “bugging”

her. 16 For his part, Maloy depicted Denise Williams as the

initiator who, one Tuesday or Wednesday, unexpectedly told him

that her kids would be gone the next weekend and asked him to

come over for a “visit” on Saturday, which invitation he

accepted.

33. It is undisputed that Maloy and Denise Williams had

casual sex a second time, in July 1999, again at her place. 17

34. Given the conflicts and ambiguities in the evidence,

the fact - finder is not convinced, without hesitancy, that the

events unfolded precisel y as Denise Williams has described them.

Yet, he is not able to find, by the greater weight of the

evidence, that Maloy’s testimony is entirely accurate, either.

Thus, there can be no affirmative findings, one way or the

other, on the broad question whet her Maloy sexually harassed

Denise Williams.

35. Concerning the particular charges, the fact - finder is

not convinced that Maloy intentionally used or attempted to use

his official position to secure a benefit for himself through

the alleged harassment or “pursuit” of Denise Williams. Nor is

he convinced that there was an understanding between Maloy and

Denise Williams that Maloy’s votes, official actions, or

judgment would be influenced by any thing of value that Maloy

solicited or accepted from her. The se determinations, it should

be clear, reflect the fact - finder’s assessment of the quality

and weight of the evidence; although properly made by the

undersigned in his role as the trier of fact, they are not

affirmative findings concerning what occurred or did not occur

during the relevant timeframe. 18

Tina Williams

36. Tina Williams (no relation to Denise) was Maloy’s aide

at the County Commission for about six months, from July 15,

1999, through the end of that year. Before coming to work for

Maloy, s he had worked as an accountant at the Florida Commission

on Human Relations (“FCHR”), the state agency where persons who

believe they have been discriminated against can file charges as

a first step towards redress.

37. Tina Williams had been introduced to Maloy in late

1998 by a mutual acquaintance, Edward Dixon, who at the time was

not only a Gadsden County Commissioner but also was associated

with the FCHR in some way. A few months later, Tina Williams

had bumped into Maloy again at a local function, and he had

asked her to apply for the position as his aide, which she later

did. After having received favorable recommendations from

Commissioner Dixon and from Ron McElrath, a fraternity brother

of Maloy’s who was then the Executive Director of the FCHR ,

Maloy had hired Tina Williams.

38. Tina Williams claims that Maloy sexually harassed her

on numerous occasions, in various ways, starting before she was

hired and continuing into September 1999. She testified, for

example, that he frequently put his h and on her lap or attempted

to do so, hugged and attempted to kiss her, talked dirty on the

telephone, and made suggestive comments, including, once when

they were on an out - of - town business trip together, “this is so

soft” in reference to the bed in her h otel room. Tina Williams

testified that the harassment stopped in September 1999, at

which point, she asserted, Maloy became increasingly critical of

her work and avoided her. Their relationship, she testified,

seemed to improve in November 1999, but the n in December Maloy

asked for her resignation, which she tendered. 19

39. Maloy testified that he hired Tina Williams to be his

aide with high expectations concerning her abilities but soon

became disappointed in her failure, as he saw it, to measure up.

At hearing, Maloy asserted that Tina Williams had simply not

worked out in the position for a number of reasons that need not

be recounted here. Suffice it to say that Maloy testified he

asked Tina Williams to leave in December 1999 because he was

genera lly dissatisfied with her performance on the job.

40. Maloy flatly denies that he ever said or did anything

to Tina Williams that could be considered improper or untoward,

including touching, kissing, hugging, shoulder - rubbing,

suggestive comments, or li ke conduct.

41. The conflicts in the evidence concerning Tina

Williams’s allegations of harassment clearly cannot be

attributed to individuals’ unique perspectives or differences of

opinion. This is not a situation where two people have

described the sa me historical event in different but

reconcilable terms; instead, the testimony has produced two

mutually exclusive versions of history. Determining which of

the protagonists is telling the purest truth is a difficult task

made tougher by several factors.

42. First, there is no independent corroboration of either

his testimony or her testimony by a witness having personal,

firsthand knowledge of the facts. This is a greater problem for

the Commission, of course, because Maloy did not have the burden

to prove his innocence.

43. Absent independent corroboration, the conflicting

testimony presents a classic “he said - she said” dilemma whose

resolution, if one must choose between the competing

narratives, 20 depends on whether “he” or “she” is deemed to be

the more credible witness. In this particular case, because the

Commission bears the burden of proving its case by clear and

convincing evidence, Tina Williams must be judged not just

credible, but considerably more credible than Maloy to sustain a

findin g of guilt. 21

44. Herein, then, lies the second factor (or interrelated

pair of factors) that complicates the fact - finding function:

Neither participant’s testimony is inherently incredible; 22 and

conversely, neither one’s testimony is inherently more cre dible

than the other’s. Tina Williams’s saga of sexual harassment

cannot be rejected out of hand as a fabrication; it is obviously

not fantastic. Upon hearing her story, one does not think,

“That could not possibly have happened.” To the contrary, Tina

Williams’s testimony is very believable. And yet, Maloy’s

testimony, too, is eminently believable. He has not presented

some half - baked alibi that tests credulity but rather has said

exactly what one would expect an innocent man, falsely accused

of sexua l harassment, to say: “I did not do it.” What more,

indeed, could he say, if in fact he were innocent? There was,

really, no way for Maloy affirmatively to disprove the

particular allegations that Tina Williams made.

45. Third, having closely observed both Tina Williams and

Maloy on the witness stand, the undersigned is unable to state

with assurance, based on their respective demeanors, which of

the two was probably telling the truth —— or who was not. Both

appeared to be sincere in recounting what had happened (or not

happened) as they recalled the events in question. Neither

appeared to the fact - finder to be lying.

46. After carefully weighing all of the evidence with the

foregoing factors in mind, the undersigned is not so convinced

by either side’ s proof as to conclude with confidence that any

particular version of history advanced at hearing is highly

verisimilar relative to the competing alternative. To the

point, the evidence at bottom does not produce in the mind of

this fact - finder a firm bel ief or conviction, without hesitancy,

as to the truth of Tina Williams’s allegations. 23

47. Thus, the fact - finder is not convinced that Maloy

intentionally used or attempted to use his official position to

secure a benefit for himself through the alleged harassment of

Tina Williams.

48. Based on a preponderance of the evidence, however, the

undersigned finds that there was no understanding between Maloy

and Tina Williams that Maloy’s votes, official actions, or

judgment would be influenced by any thing of value that Maloy

solicited or accepted from her —— assuming he requested or

received any such thing, which was not clearly and convincingly

proved.

Ultimate Factual Determinations 24

49. The undersigned determines as a matter of ultimate

fact that the Commission has failed to prove, by clear and

convincing evidence, that Maloy violated either Section

112.313(2) or Section 112.313(6), Florida Statutes, as charged,

in relation to his respective associations with Laurie Bradley,

Ophelia Morris, Denise Will iams, and Tina Williams.

50. It is therefore determined, as a matter of ultimate

fact, that Maloy is not guilty of the ethics violations with

which he has been charged.

CONCLUSIONS OF LAW

51. The Division of Administrative Hearings has personal

and sub ject matter jurisdiction in this proceeding pursuant to

Sections 120.569 and 120.57(1), Florida Statutes.

52. The Commission has the burden of proving Maloy’s

culpability by clear and convincing evidence. Latham v. Florida

Commission on Ethics , 694 So. 2 d 83, 84 (Fla. 1st DCA 1997).

53. Regarding the standard of proof, i n Slomowitz v.

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

Appeal, Fourth District, canvassed the cases to develop a

“workable definition of clear and convincing evide nce” and found

that such a definition, of necessity, would need to contain

“both qualitative and quantitative standards.” The court held

that

clear and convincing evidence requires that

the evidence must be found to be credible;

the facts to which the wi tnesses testify

must be distinctly remembered; the testimony

must be precise and explicit and the

witnesses must be lacking 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 be lief or

conviction, without hesitancy, as to the

truth of the allegations sought to be

established.

Id. The Florida Supreme Court later adopted the fourth

district’s description of the clear and convincing evidence

standard of proof. Inquiry Concerning a Judge No. 93 - 62 , 645

So. 2d 398, 404 (Fla. 1994). The First District Court of Appeal

also has followed the Slomowitz test, adding the interpretive

comment that “[a]lthough this standard of proof may be met where

the evidence is in conflict, . . . it see ms to preclude evidence

that is ambiguous.” Westinghouse Elec. Corp., Inc. v. Shuler

Bros., Inc. , 590 So. 2d 986, 988 (Fla. 1st DCA 1991), rev .

denied , 599 So. 2d 1279 (1992)(citation omitted).

54. As set forth in the Findings of Fact, the trier has

det ermined as matter of ultimate fact that the Commission failed

to establish, by the requisite level of proof, that Maloy

committed the ethics violations of which he stands accused.

These factual findings, however, were necessarily informed by

the administr ative law judge’s application of the law. A brief

discussion of the pertinent legal principles, therefore, will

illuminate the dispositive findings of ultimate fact.

55. Maloy was charged with violating Section 112.313(2)

and Section 112.313(6), Florida Statutes. The former proscribes

the solicitation or acceptance of gifts, and the latter forbids

the misuse of one’s public position. While a handful of

officials has been found guilty over the last quarter century or

so under Section 112.313(6) for cond uct said to constitute

sexual harassment, no public official has ever been convicted of

violating Section 112.313(2) pursuant to similar allegations.

Therefore, Section 112.313(6) will be discussed first.

56. Section 112.313(6), Florida Statutes, provid es as

follows:

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.

104.31.

(Emphasis added.)

57. The adverb “corruptly,” which crucially modifies the

verb “use,” is separately defined in Section 112.313(9), Florida

statutes, to mean

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.

The language of these statutes will be revisited momentarily.

58. But first, it is interesting to observe that the

statutes just quoted do not expressly mention “sex ual

harassment.” Nor has the Commission, by rule, defined the term

“sexual harassment” for purposes of Chapter 112, Florida

Statutes. Nor has it prescribed any generally applicable

standards of ethical conduct pertaining to sexual harassment, or

otherwis e interpreted the Ethics Code so as to describe the

extent of its reach into conduct amounting to sexual harassment.

Instead, the Commission has opted, when dealing with allegations

of sexual harassment, to decide on a case - by - case basis whether

the charg ed party’s behavior violated of the plain language

Section 112.313(6).

59. This approach has resulted in the issuance of at least

seven final orders by the Commission wherein men found to have

sexually harassed women (usually subordinates) were adjudic ated

guilty of violating Section 112.313(6). 25 These orders are

useful, not as authoritative sources of law, but because persons

whose substantial interests are determined by an agency are

entitled to expect consistent results based upon similar facts

as e xpressed in discoverable agency orders. See Amos v.

Department of Health and Rehabilitative Services , 444 So. 2d 43,

47 (Fla. 1st DCA 1983). That said, the Commission’s opinions

must be read with care, for a number of reasons.

60. First, administrative orders, including final agency

orders, are not binding precedent. See Mercedes Lighting and

Elec. Supply, Inc. v. Dept. of General Services , 560 So. 2d 272,

278 (Fla. 1st DCA 1990)(“The doctrine of stare decisis is

primarily applicable only to judicial de cisions and is not

generally applicable to decisions of administrative bodies.”).

Second, to glean abstract, generally applicable rules of

decision from the Commission’s previous opinions would

undermine, to some extent, the rulemaking procedures set fort h

in Section 120.54, Florida Statutes, which procedures the

Commission has not used to adopt statements of general

applicability. 26 Third, case - specific decisions should

ordinarily be treated as such —— i.e. as decisions limited to the

particular facts and c ircumstances at hand. Fourth, most of the

Commission’s opinions —— including Lancaster , Garner , and Bruner ,

its seminal orders of the early 1980’s —— were issued before 1997,

when the First DCA announced, in Latham , supra , that the

Commission’s burden is to p rove ethics violations by clear and

convincing evidence. It is conceivable that at least some of

the pre - Latham cases would have turned out differently if

decided under the more stringent standard of proof applicable

today.

61. Having pointed out the se limitations, it is

acknowledged and understood that at least two district courts of

appeal, the first and the second, have accepted the Commission’s

view that sexual harassment can fall within Section 112.313(6). 27

In so doing, these courts have establi shed the following

principles. First, the Commission has jurisdiction over ethics

charges involving sexual harassment, even though such conduct is

proscribed by other laws, namely the Florida Human Rights Act,

Sections 760.01 - 760.11 and 509.092, Florida S tatutes, and Title

VII of the Civil Rights Act, 42 U.S.C. § 2000e, et seq. , which

in turn are administered by other agencies, i.e. the FCHR and

the Equal Employment Opportunity Commission, respectively. See

Garner v. Commission on Ethics , 415 So. 2d 67, 6 9 (Fla. 1st DCA

1982 ), rev. denied , 424 So. 2d 761 (1983)(“ Garner I ”). Second,

Section 112.313(6) is not unconstitutionally vague as applied to

allegations involving sexual harassment. See Garner v.

Commission on Ethics , 439 so. 2d 894, 895 (Fla. 2d DCA 1983 ),

pet. rev. denied , 449 So. 2d 264 (1984)( “ Garner II ”). Third,

“sexual favors” can constitute a “benefit” for purposes of

Section 112.313(6), Florida Statutes. Id.

62. While giving a green light to ethics prosecutions such

as this one, these deci sions nevertheless leave some important

questions unanswered. Two of these issues —— which are opposing

sides of the same coin, really —— are worthy of note in this

discussion.

63. To begin, there is the previously mentioned lack of a

statutory or rule - base d definition of “sexual harassment” for

the ethics context, which the courts have not addressed. The

undersigned recognizes that neither the legislature nor the

Commission —— or the courts for that matter —— can be expected to

define all of the specific insta nces that fall within Section

112.313(6). See Tenney v. State Commission on Ethics , 395 So.

2d 1244, 1246 (Fla. 2d DCA 1981). But sexual harassment is a

predictable problem for which standards can be established. In

fact, one of the complicating factors in an ethics case such as

this is that there is a huge body of law on the subject of

sexual harassment (arising under Title VII) that might provide

some guidance, yet whose relevance is arguable. The questions

arise: Does it matter whether the responden t’s conduct would

have been actionable under Title VII? If liability could not

have been established under Title VII, can an ethics violation

still be found? If, as the Commission insists, the answer to

the previous question is “yes” —— which would mean th at there is a

difference between “unlawful” sexual harassment and “unethical”

sexual harassment —— then how are officials to know, without

confusion, what conduct is proscribed, when there are no ethics -

specific standards to warn them?

64. It is not a satis factory response to this problem to

assert that sexual harassment, as an independent wrong and

especially as defined in the civil rights context, need not and

should not even be considered in adjudicating an ethics case

under Section 112.313(6). For in re ality, sexual harassment is

a concept that has entered the legal and popular cultures.

Therefore, it is practically impossible to avoid conceiving of

“sexual harassment” (however one defines the term) as a sui

generis ethics violation that exists apart fr om Section

112.313(6). The unstated syllogism is: All sexual harassment

is unethical. The respondent sexually harassed a subordinate.

Therefore the respondent acted unethically and should be

punished.

65. The effect of this logic is to substitute “sexual

harassment” (however defined) in place of the actual language of

Section 112.313(6). The danger is that the decision - maker,

having determined that the respondent’s conduct satisfies his or

her definition of sexual harassment, will then have little use

for the statute itself, the conclusion of guilt following

inexorably from the finding of sexual harassment.

66. This is not merely a theoretical threat. It was

realized in, for example, this “finding,” which was made in an

early and influential eth ics case:

50. The actions of the Respondent, as set

forth above, fall within the definition of

sexual harassment as that term is used by

psychologists who are experts in this field.

Research done in this area indicates that

sexual harassment can occur in the work

place and outside the workplace, at meetings

or events attended by the employer and the

employee.

In re Ambrose Garner , 5 F.A.L.R. 105 - A, 109 - A (Ethics Comm’n

Oct. 28, 1982). When, in the absence of explicit legal

standards, the decision - maker is permitted to resort to the

unidentified “research” of unnamed “experts” whose definition of

sexual harassment, while dispositive, is not even quoted, then

he or she is essentially free to decide ethics cases involving

sexual harassment according to his or her personal preferences

or prejudices. Public officials, however, should be disciplined

under Section 112.313(6), if at all, according to neutral

principles enacted by the legislature, promulgated by the

Commission in the exercise of delegated legisla tive authority,

or formulated by the courts —— not on whatever definition of

“sexual harassment” the administrative law judge or other agency

decision - maker might read in a psychology textbook.

67. The desirability of and need for standards are not

obviate d by characterizing sexual harassment (or, more

precisely, the gratification presumably derived therefrom) as

merely one of the infinite number of benefits, no different from

any other, to which end an unethical official might corruptly

put his public posi tion. 28 This is because sexually oriented

behavior, broadly speaking, is a natural —— indeed necessary —— part

of the human experience, for public officials and private

citizens alike. No one would seriously suggest that it is

always unethical for a public of ficial to seek sexual

gratification in the way that it would always be unethical for,

say, a building inspector to issue his friend a permit for a

project that fails to satisfy the applicable codes. To be

deserving of censure, most would agree, there must be something

“bad” about the official’s sexually oriented behavior —— hence the

utility of a judgmental term such as “sexual harassment.”

68. However, to classify certain sexually oriented

behavior as “sexual harassment” meriting disapprobation and

punish ment necessarily entails the making of moral distinctions

according to criteria that must come from somewhere. So, the

unavoidable fact is that at some point in deciding whether an

unethical act was committed in violation of Section 112.313(6),

Florida St atutes, a line inevitably must be drawn between

acceptable sexually oriented behavior (perhaps including

intersexual flirtation in the workplace, which is not prohibited

under Title VII 29 ) and unacceptable sexually oriented behavior.

The undersigned doubts that the sometimes - blurry boundary

between one category and the other can consistently and fairly

be made out without standards to guide and discipline the

decision - maker.

69. The second important issue that deserves greater

attention than it appears t o have gotten is whether

officeholders have adequate notice of the sexually or

romantically oriented conduct that violates Section 112.313(6),

Florida Statutes. This is the flip side of the issue just

examined, for as the lack of a definition of sexual ha rassment,

or other standards for evaluating sexually oriented conduct,

leaves decision - makers without guidance, so too does it leave

public officials in the dark about exactly what is prohibited.

70. The Commission argues that a respondent’s conduct need

not be found to meet the legal definition of sexual harassment,

as developed under Title VII, for a violation of Section

112.313(6) to be established. Yet, while this position is

logically coherent, it only tells what the relevant standards of

conduct, at least to some extent, are not . To say, as the

Commission does, that Title VII does not supply all of the

relevant standards fails affirmatively to define for

officeholders the conduct that runs afoul of Section 112.313(6),

Florida Statutes. 30

71. The Co mmission further argues that Maloy was on notice

of the proscribed conduct because he received sexual harassment

training at work, during which he learned about prohibitions

(presumably derived from Title VII) that were “even broader”

than those in the Eth ics Code. 31 One ready response to this

argument is that public employers are not charged with

prescribing, or authorized to promulgate, the standards of

ethical conduct for purposes of Chapter 112. But, at any rate,

the Commission’s argument actually serv es to underscore the

notice problem.

72. Accepting the Commission’s premise, Maloy was on

notice of a broad set of Title VII - prohibited behaviors.

Contained within this set, the Commission intimates, was a

subset of Section 112.313(6) - proscribed conduc t. There is no

evidence, however, that the parameters of this subset were

explained to Maloy as part of the sexual harassment training he

received at work. Further, the Commission’s argument fails to

explain how Maloy would have been placed on notice, th rough his

employer - provided sexual harassment training, of the separate

and unique set of behaviors comprising all acts permissible

under Title VII but prohibited under Section 112.313(6).

Finally, since the Commission takes the position that Title VII

st andards are largely irrelevant in assessing culpability under

the Ethics Code, it is hard to see why public officials would

equate notice of Title VII - derived standards with notice

regarding conduct that would violate the Ethics Code.

73. The foregoin g considerations, while not in and of

themselves outcome determinative in this case, counsel in favor

of a rigorous application of the statutory text. With this

thought in mind, attention will now be focused on the statutory

element of intent.

74. Secti on 112.313(6) requires the Commission to prove

that the official corruptly used his public position to obtain a

special benefit. The term “corruptly,” as we have seen, is

defined to mean “done with a wrongful intent and for the purpose

of obtaining” a per sonal or private benefit. See Section

112.312(9), Florida Statutes.

75. As these statutes make plain, then, the use of public

position, to be unethical, must be done with wrongful intent and

for the purpose —— that is, with the goal in mind —— of obtaining

some personal or private benefit. The benefit must be the

official’s conscious object, and his public position the

intended means of attaining that object. Thus, while it is a

necessary condition of culpability that the official’s purpose

be to secure s ome personal benefit, this alone is not sufficient

to constitute an ethics violation. He must also intentionally

use his office as the means to the desired end. 32

76. As applied to the instant case, the statutes require

the Commission to prove that M aloy either consciously set up, as

an end to be attained, the sexual harassment of one or more of

his alleged victims, or deliberately set out to obtain sexual

favors from any of them.

77. In addition, the Commission must prove that Maloy

intentionally used his official positions, as opposed (or, at a

minimum, in addition) to other assets, 33 to obtain these

benefits.

78. As set forth in the Findings of Fact above, it is this

latter aspect of the necessary intent, in particular, that the

Commission fa iled to establish clearly and convincingly.

Accordingly, an ultimate determination of not guilty must be

made as to the charge brought under Section 112.313(6).

79. Maloy was also accused of violating Section

112.313(2), Florida Statutes. This statute provides as follows:

SOLICITATION OR ACCEPTANCE OF GIFTS. – No

public officer, employee of an agency, local

government attorney, or candidate for

nomination or election shall solicit or

accept anything of value to the recipient,

including a gift, loan, rewar d, promise of

future employment, favor, or service, based

upon any understanding that the vote,

official action, or judgment of the public

officer, employee, local government

attorney, or candidate would be influenced

thereby.

(Emphasis added.)

80. It i s clear that the noun “understanding” as used in

Section 112.313(2) was intended to denote “a mutual agreement

not formally entered into but in some degree binding on each

side.” See Merriam - Webster OnLine Dictionary. The statute thus

requires that there be a meeting of the minds between the public

officer who receives (or is requesting) the gift and the person

who confers (or is being asked for) the gift pursuant to which

each understands that the gift is being given (or solicited) for

the purpose of inf luencing some official action of the

recipient.

81. In this case, the Commission failed clearly and

convincingly to prove that such a meeting of the minds occurred

between Maloy and any of the female accusers. At best the

evidence shows that some or al l of the women involved thought

Maloy would take some tangible employment action if they

spurned, or gave in to, his alleged advances. The evidence does

not convince the undersigned that Maloy thought any of the women

tolerated, or responded favorably to, his overtures based upon

an understanding that his vote, official action, or judgment

would be influenced thereby. Cf. Castillo v. State , 835 So. 2d

306, 309 (Fla. 3d DCA 2002)(evidence was insufficient to convict

police officer on criminal charge of acc epting unlawful

compensation where, in the absence of any spoken understanding,

the officer could simply have thought that the driver

voluntarily had sex with him, rather than —— as she believed —— to

avoid being arrested for DUI). Accordingly, the alleged

vi olation is not established.

RECOMMENDATION

The fact - finder having determined that the evidence fails

clearly and convincingly to establish a factual basis for

culpability on any ground charged, it is RECOMMENDED that the

Commission enter a final order decl aring Maloy not guilty of

violating Sections 112.313(2) and 112.313(6), Florida Statutes.

DONE AND ENTERED this 25th day of April, 2003, in

Tallahassee, Leon County, Florida.

___________________________________

JOHN G. VAN LANINGHAM

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 H earings

this 25th day of April, 2003.

ENDNOTES

1 / Maloy’s alleged comment about getting Bradley a county job

was sometimes referred to during the final hearing as an

“offer,” but this is a misnomer. Bradley testified that, to the

best of her recollection, which was imprecise after so many

years, Maloy had said that “he thought he would be having

something coming up at the County and he could possibly get me a

job making more money than I was making at the time.” Such a

remark, if this were something Maloy said, cannot reasonably be

understood as an offer of employment, because it does not

objectively manifest a present intent to enter into an

employment agreement. Moreover, the statement itself —— whil e it

might have suggested to Bradley that Maloy’s power as a County

Commissioner could be exercised for her benefit —— is not

intrinsically offensive, and uttering it would not necessarily

have been inconsistent with the proper performance of Maloy’s

public duties, depending on the surrounding circumstances.

2 / The internal investigation by DOT resulted in a determination

that the agency was “unable to substantiate or deny [Bradley’s]

allegations.”

3 / Inferences are always permissive, never mandatory. It is the

fact - finder’s prerogative to draw —— or not to draw —— reasonable

inferences that might arise from the established facts. When,

as here, the standard of proof requires clear and convincing

evidence, the fact - finder must take care to draw only such

inferences as clearly and convincingly follow from clearly and

convincingly proved basic facts. That is to say, the fact -

finder must not use inferences to circumvent the standard of

proof.

4 / To be clear, the inference arises from the premise that

Brad ley would not have reported the alleged misbehavior to

others unless it really had happened. This premise, it will be

seen, assumes Bradley’s truthfulness as a given.

5 / The Advocate’s burden in this case was to adduce clear and

convincing evidence; thu s, competent, credible proof of what

likely (as opposed to very probably) happened is insufficient to

prove the charges against Maloy. From this it follows that,

when the evidence fails clearly and convincingly to prove

essential elements of the Advocate’ s case, as here, the

undersigned is not required to make affirmative findings as to

an exculpatory alternative to the allegations. In other words,

Maloy need not affirmatively be found innocent to be deemed not

guilty.

6 / Because Maloy did not have the burden of proof, this finding

is based on a preponderance of the evidence. By way of

explaining this finding, there is neither any direct proof that

Maloy consciously used his official positions to harass Bradley,

nor any persuasive reason to infer such i ntent without

hesitation. In contrast, reasons exist to infer the absence of

such an intent.

Consider first the two basic ways, as posited by the

Commission, in which a public official might intentionally use

his official position to perpetrate sexual harassment. The most

obvious way is by making, or attempting to make, a non -

consensual quid pro quo with a subordinate pursuant to which

sexual favors are exchanged, or sought in exchange, for

favorable employment actions ( e.g. a promotion, a raise, a

bet ter job) or, alternatively, for the supervisor’s promises not

to make good on threats of adverse employment actions ( e.g. a

poor performance review, a demotion, termination). This is akin

to the quintessential form of sexual harassment as defined in

the c ivil laws proscribing discrimination, at least when

tangible employment actions actually result. Another means of

intentionally using one’s position to engage in sexual

harassment, according to the Commission, occurs where, instead

of imposing or attempti ng to impose a quid pro quo by taking or

threatening to take tangible employment actions, the official

intentionally engages in behavior vis - à - vis a subordinate that

he knows would not be tolerated but for his superior position,

thereby taking advantage of the imbalance of power between them.

This is roughly analogous to what is known as “hostile

environment” sexual harassment in the civil rights context.

When seeking to prove a violation of Section 112.313(6),

Florida Statutes, based on a quid pro quo th eory of sexual

harassment, the Commission is assisted by the fact that the

power of office normally is the sine qua non of the

consideration for whatever benefits were demanded. Thus,

convincing proof of a quid pro quo ordinarily should raise a

strong inf erence that the official intentionally used his

position to gain leverage over the subordinate.

The same strong inference of intent to use one’s official

position does not arise, however, where no quid pro quo was

involved in the alleged sexual harassm ent. This is because an

officeholder reasonably might have made overtures of a sexual

nature toward a subordinate for any number of reasons besides a

desire knowingly to take advantage of the imbalance of power.

For one, the official might have been inte rested in having a

genuine romantic relationship with the subordinate. Most

romances, after all, even perilous relationships between persons

of unequal rank in the workplace, start with someone making an

“advance” that he or she hopes will be well receive d. Or, the

subordinate might have seduced the official in an attempt to

exploit a different imbalance of power, one in which he or she

has the upper hand. Yet another of the endless possibilities is

that the officeholder is simply a cad whose personality drove

him or her to engage in behaviors that others regarded as

offensive; such a person is capable of perpetrating acts

constituting sexual harassment without intentionally using or

even thinking about his or her official position.

Of course, it would b e impossible to catalogue all the

complex factors that motivate interactions between persons of

the opposite sex. This need not be done, however, to conclude

that it is not true as a matter of fact that every act of

perceived sexual harassment of a subord inate by a supervisor —— at

least where no quid pro quo is involved —— necessarily stems from

the alleged harasser’s intentional use of his or her official

position, owing to the inherent imbalance of power between

supervisors and subordinates. Where a quid p ro quo is not

involved, therefore, the imbalance of power is not a trump but a

factor among all the relevant circumstances to consider in

determining whether the evidence establishes a clear and

convincing factual basis for drawing a clear and convincing

i nference that the accused intended to use his official position

to facilitate the alleged harassment.

In this instance, Maloy’s alleged actions suggest that he

desired mostly to touch Bradley. The undersigned is not

convinced that the only way Maloy co uld have touched Bradley’s

shoulders, given her hugs, and tried to kiss her, as alleged,

was by intentionally using his official positions. It is

reasonably likely that, if he did these things, Maloy gave no

thought whatsoever to his official positions wh en he acted,

because there is no clear proof that he perceived a need to use

such positions to coerce or entice Bradley into submitting.

Bradley’s testimony that she essentially gave Maloy the cold

shoulder to discourage what she regarded as his improper

advances is, without question, some evidence that Maloy should

have known Bradley was uninterested; it is not, however,

sufficient proof to convince the undersigned to infer without

hesitancy that Maloy knew and understood his attention was both

unwelcome and being tolerated only because he held higher public

positions than Bradley —— much less to draw the ultimate inference

that Maloy intentionally exploited his official authority in

order to make Bradley tolerate his attention against her will.

Given th e lack of a compelling reason for Maloy to have

intentionally used his official positions, a credible

alternative explanation for the behavior that Bradley has

described (assuming it happened) is that Maloy either hoped

Bradley would enjoy his attention or gave little thought to the

possibility that she was disturbed by it. This of course does

not excuse conduct which, if unwelcome, would be degrading and

offensive to the victim regardless whether the perpetrator

consciously used his official position to c arry it out, but

merely explains why the evidence fails clearly and convincingly

to prove an ethics violation pursuant to Section 112.313(6),

Florida Statutes.

The lone exception to the foregoing analysis involves the

allegation that Maloy mentioned the possibility of getting

Bradley a relatively lucrative job with the county, which might

be interpreted as an attempt to make an indecent quid pro quo .

To be fair, though, such a comment (assuming for argument’s sake

it was made) must be evaluated with gre at care; the context in

which the comment was spoken is at least as crucial as content

thereof. Because there is no reason to assume (or evidence to

prove) that county commissioners, acting in their official

capacities, are forbidden from recruiting talen ted persons for

positions with the county, it would not have been inherently

improper for Maloy to find out whether Bradley might be

interested in working for the county. On the other hand, if the

evidence showed, for example, that Maloy had discussed his

ability to “reward” Bradley with a county job at the same time

he was touching her inappropriately, then an inference

reasonably could be drawn that Maloy intended to misuse his

official position as a County Commissioner.

The evidence in this case, how ever, does not convincingly

establish a sufficient nexus between the alleged arm stroking

and the so - called job “offer” to raise a clear inference of

intentional misuse of public office. Bradley’s testimony is

simply too imprecise and inexplicit to establ ish, clearly and

convincingly, either the content of Maloy’s comment (assuming he

brought up the subject of a county job) or the context in which

such remark was made. Without compelling proof of such facts, a

clear and convincing inference of wrongful in tent will not be

drawn by this fact - finder.

7 / To take one notable example, Morris testified that she and

Maloy routinely had sex in the office, which claim Maloy denied.

This type of titillating detail tends to capture people’s

attention but is irrelev ant to the charges at hand. It should

be observed in this regard that the Commission did not charge

Maloy with misusing “property or resource[s]” pursuant to

Section 112.313(6), Florida Statutes, so it is unnecessary here

to decide whether having sex in a public office constitutes an

ethics violation under this statute. Of course, had the

Commission pursued such a theory, it necessarily would have

implicated Morris as a violator herself, because she, too, was a

public employee subject to Section 112.313(6 ), Florida Statutes.

8 / This position soon would be vacated by Tina Williams, who was

then the incumbent.

9 / Maloy did not have the burden to prove this or any other

exculpatory fact. Indeed, it is important to be mindful that an

exculpatory fact need not even be likely true ( i.e. proved by a

preponderance of the evidence) in order to be sufficiently

plausible to render contrary evidence less than clear and

convincing. In this particular instance, the greater weight of

the evidence proves the affirmat ive finding stated in the text.

10 / In fact, it is undisputed that the two had sex at least once

after September 8, 2000.

11 / A point that should go without saying but is important

nonetheless is this: Both Maloy and Morris engaged in conduct

that many people consider unethical (or, more accurately,

immoral) according to widely accepted notions of right and

wrong. The standards to be applied in judging Maloy’s behavior

for purposes of this proceeding, however, are not such general

principles of right an d good conduct as the undersigned might

define them according to his own (or his perception of the

public’s) preferences; they are instead —— because ours is a

government of laws —— the specific standards prescribed in

subsections (2) and (6) of Section 112.31 3, Florida Statutes,

pursuant to which Maloy was charged. There is a universe of

generally disapproved - of behavior that falls outside the reach

of these particular subsections, and mutually consensual

adulterous affairs are part of that universe.

12 / Mor eover, the purported understanding runs counter to the

Commission’s theory that Maloy intentionally used his position

as a County Commissioner to hire Morris for the purpose of

extracting sexual favors from her. The fact is, in the autumn

of 1999 when Mal oy offered to hire Morris, he was already

enjoying her sexual favors without having resorted to work -

related incentives or coercive measures. As well, there is no

persuasive evidence that their affair was about to end; indeed,

it is reasonable to infer th at Maloy could have continued having

sex with Morris had she remained a state employee. Therefore,

if (as the Commission alleges) Maloy’s conscious purpose in

hiring Morris was to facilitate a sexual relationship with her,

then it would have been highly i rrational for him to act on that

intent once Morris announced that the sex would need to stop if

she took the job as his aide, for the obvious reason that

proceeding on that basis would put at risk the existing sexual

relationship. More likely, if obtaini ng sexual “benefits” were

really his strategic goal, Maloy simply would have dropped the

employment offer at that point as an unnecessary and

counterproductive tactic.

13 / To be clear, the undersigned is not finding that there was

necessarily no coercion, or that Morris never subjectively felt

coerced, but instead that the evidence does not clearly and

convincingly establish the truth of these particular

allegations. It bears repeating that the fact - finder’s

determination that the evidence has failed to c onvince him of

the truth of an allegation sought to be established is not a

positive finding of historical or ultimate fact based on

competent substantial evidence but rather a negative finding

that the evidence adduced in support of the charge, taking int o

account “intangibles” such as witnesses’ demeanor and body

language, lacks sufficient probative force to produce in his

mind a firm belief or conviction, without hesitancy, as to the

truth of the allegation. Such a negative finding is, however, a

“findi ng of fact,” not a legal conclusion. See Goin v.

Commission on Ethics , 658 So. 2d 1131, 1138 (Fla. 1st DCA

1995)(“By stating that he was not persuaded, the hearing officer

engaged in the act of ascribing weight to the evidence.”).

14 / By her own account, which the undersigned has no reason to

doubt, Denise Williams was going through an emotionally trying

period at this time in her life. Not only was she in the

process of getting a divorce, but also she was, as she put it,

“estranged” from her family (in particular, her mother) and

feeling somewhat isolated socially. The undersigned is unable

to conclude with certainty, however, whether these circumstances

made her more vulnerable to Maloy’s alleged attention, as she

contended, or needful of it, as one mi ght alternatively infer.

15 / Denise Williams asserted that she left her job as a

commissioner’s aide and took her current position in the

county’s Public Works office to escape from Maloy. If true,

this would be circumstantial evidence that Maloy harasse d her.

The evidence concerning why she changed jobs is conflicting and

ambiguous, however, because there were other factors that

reasonably could have motivated her. The new position, for

example, paid about 10% more in salary. It also offered greater

j ob security, since, as a career public servant, she would no

longer be serving at the pleasure of a single commissioner —— who

could retire, be defeated, or decide at any time to let her go ——

but instead would be subject to dismissal only for cause. All

thin gs considered, therefore, the undersigned is not convinced

that Denise Williams resigned from her position as Commissioner

Thaell’s aide to get away from Maloy.

16 / Denise Williams also testified that Maloy assured her that,

if she would have sex with him , he would make sure she moved up

in the county. Maloy flatly denied having made this promise,

however, and Denise Williams made it clear that she never asked

him to honor it, as one might expect she would have done had it

been given. Interestingly, too — — and again contrary to what one

might expect —— Denise Williams did not mention this alleged

promise as one of her reasons for sleeping with Maloy. Having

weighed all of the evidence, the undersigned is unable to form a

firm belief or conviction that Maloy proposed this purported

quid pro quo .

17 / There is no evidence that Maloy showed up unexpectedly at

Denise Williams’s doorstep on either of the two occasions they

had sex in her home; nor, for that matter, is there any evidence

that Maloy demanded entry o r otherwise pressured Denise Williams

to let him in. To the contrary, the greater weight of the

evidence establishes that Denise Williams twice invited Maloy

over to her apartment knowing each time that the purpose of his

visit was to have sex. This stri kes the undersigned as a bit

inconsistent with Denise Williams’s claim that she was a totally

unwilling participant in these trysts.

18 / A determination that the charged wrongdoing (“X”) was not

convincingly proved means, simply, that while X might possib ly

or perhaps even likely have occurred, it is not highly probable

that X happened as alleged. Such a determination plainly is not

functionally equivalent to —— and should not be treated as —— a

finding that “Y” occurred, where Y is any exculpatory

alternativ e to the facts comprising the charged offence.

19 / Thereafter, Tina Williams went back to work for the FCHR,

where she remained employed at the time of the final hearing.

It is somewhat ironic that Tina Williams did not timely file

with the FCHR a char ge of gender discrimination (based on sexual

harassment) against Maloy. She testified that this was because

she “wanted to forget about it.” She later changed her mind,

however, when Ophelia Morris filed her charge with the FCHR. At

hearing, Tina Willia ms explained that she had intervened in the

proceeding that Morris started not to win money but to have

Maloy removed from the County Commission because “that man does

not deserve to be a County Commissioner.”

20 / Given the standard of proof, the undersig ned need not

necessarily decide that one or the other witness testified

truthfully, owing to the possibility that both sides might have

failed to convince him.

21 / Indeed, to be firmly convinced that Tina Williams is telling

the truth requires one to conc lude, with a relatively high

degree of confidence, that Maloy has lied in denying her

allegations.

22 / Of course, one can think of reasons why one or the other

would lie —— and each side certainly has suggested some —— but the

undersigned finds none so compel ling as to require that either

witness’s testimony be discounted to the point of incredibility.

23 / This is not to say that Tina Williams testified

untruthfully. But at the same time, there is a reasonable

possibility, at least, that Maloy’s denials are truthful —— a real

enough possibility to preclude the undersigned from holding a

firm belief or conviction concerning the truth of the

allegations. It should never be forgotten that the clear and

convincing standard presupposes that the proponent may introd uce

credible evidence in support of its position —— may even prove by

a preponderance of the evidence that its allegations are true ——

and yet lose. The raison d’être of a heightened standard of

proof in ethics cases, after all, is to reduce the margin for

er ror in favor of the accused, whose business and political

ambitions, station in the community, relationships with family

and friends, and good name are at stake.

24 / The question whether the facts, as found herein, constitute

a violation of either Section 112.313(2) or Section 112.313(6),

Florida Statutes, is one of ultimate fact for the undersigned to

determine. See Goin v. Commission on Ethics , 658 So. 2d 1131,

1138 (Fla. 1st DCA 1995).

25 / See In re Earnie Neal , 21 F.A.L.R. 1633, Final Order No. 99 -

3 (Ethics Comm’n Jan. 28, 1999); In re Gary Latham , 21 F.A.L.R.

1619, Final Order No. 97 - 23 (Ethics Comm’n Dec. 5, 1997); In re

Lawrence R. Hawkins , 18 F.A.L.R. 2078, Final Order No. 95 - 28

(Ethics Comm’n Nov. 20, 1995); In re E. “Walt” Pellicer , 9

F.A.L.R. 4388 (Ethics Comm’n June 25, 1987); In re L.H.

Lancaster , 5 F.A.L.R. 1567 - A (July 15, 1983); In re Ambrose

Garner , 5 F.A.L.R. 105 - A, 109 - A (Ethics Comm’n Oct. 28, 1982);

In re Raymond Bruner , 2 F.A.L.R. 1034 - A (Ethics Comm’n Apr. 17,

1980); see also In re Alfred Welch , 1991 WL 833908 (DOAH Dec.

10, 1991).

26 / For example, if one were reviewing the Commission’s prior

opinions for “holdings” that could be applied as “precedent,”

one reasonably could conclude that the Commission has ruled that

a manager’s “ [i]nfliction of sexually charged remarks, gestures,

and actions on subordinate employees” constitutes “implicit

coercion” amounting to a “use of office” in violation of Section

112.313(6). See , e.g. , In re Lawrence R. Hawkins , 18 F.A.L.R.

2078, 2093, Fina l Order No. 95 - 28 (Ethics Comm’n Nov. 20, 1995).

This statement sounds like an abstract principle that could be

applied across - the - board —— or, to the point, like a “rule” as

that term is defined in Section 120.52(15), Florida Statutes.

In fact, however, t his statement has not been adopted as a rule

according to Section 120.54, presumably for good reasons, and

thus it should not be applied as though it had been.

27 / In addition to the case mentioned in the text, the First DCA

has decided several appeals in matters involving sexual

harassment qua ethics violation without reaching the merits of

the charge. See Latham v. Florida Commission on Ethics , 694 So.

2d 83 (Fla. 1st DCA 1997)(standard of proof); Commission on

Ethics v. Lancaster , 421 So. 2d 711 (Fla. 1st DCA 1982 ), pet.

rev. denied , 430 So. 2d 451 (1983)(venue ); Florida Pub. Co. v.

Wilkes , 420 So. 2d 333 (Fla. 1st 1982)(public access to

proceedings before the Commission); Bruner v. State Commission

on Ethics , 384 So. 2d 1339 (Fla. 1st DCA 1980)(governo r’s

suspension of appellant from office rendered pending appeal

moot).

28 / Cf. Garner II , 439 So. 2d at 895 (“[T]he charges included

the obtaining of sexual favors, which we cannot say are not ‘any

benefit’ within the generally understood meaning of the

t erm[.]”).

29 / As the U.S. Supreme Court has explained,

[Title VII] does not reach genuine but

innocuous differences in the ways men and

women routinely interact with members of the

same sex and of the opposite sex. The

prohibition of harassment on the b asis of

sex requires neither asexuality nor

androgyny in the workplace; it forbids only

behavior so objectively offensive as to

alter the “conditions” of the victim’s

employment. “Conduct that is not severe or

pervasive enough to create an objectively

hos tile or abusive work environment —— an

environment that a reasonable person would

find hostile or abusive —— is beyond Title

VII’s purview.” . . . We have always

regarded that requirement as crucial, and as

sufficient to ensure that courts and juries

do not mistake ordinary socializing in the

workplace —— such as male - on - male horseplay or

intersexual flirtation —— for discriminatory

“conditions of employment.”

Oncale v. Sundowner Offshore Services, Inc. , 523 U.S. 75, 81,

118 S.Ct. 998, 1002 - 03 (1998)(citations omitted).

30 / Being told that X is not Y is generally not an effective

description of X, unless X and Y happen to be the only two

possibilities, and each is a known quantity.

31 / Here the Commission wants, a little bit, to have it both

ways. On the one hand, it stresses that Title VII standards

should not be “engrafted” onto Section 112.313(6), but on the

other it suggests that Title VII standards (or workplace rules

derived therefrom) serve to notify officials that sexually

oriented behavior might viola te the Ethics Code. This latter

suggestion itself entails a kind of subtle “engrafting” of Title

VII onto the Ethics Code.

32 / Thus, Section 112.313(6), Florida Statutes, is a specific

intent statute. That is, it prohibits the intentional securing

of an y personal benefit only when such act (the “beneficial

act”) is accompanied by the intent to use one’s official

position as the means of conferring the desired benefit. Cf.

Linehan v. State , 442 So. 2d 244, 247 (Fla. 2d DCA 1983), result

approved , 476 So. 2d 1262 (1985)(“Specific intent statutes . . .

prohibit an act when accompanied by some intent other than the

intent to do the act itself or the intent (or presumed intent)

to cause the natural and necessary consequences of the act.”).

Sometimes the inte nt to do the beneficial act and the intent to

use one’s official position for the purpose of obtaining the

desired benefit will be one and the same, as when —— to repeat the

earlier example —— a building inspector issues a permit to his

friend for a non - confor ming project. But other times, as in the

case of sexual harassment not involving a quid pro quo , the

intent to commit the beneficial act will not necessarily be

identical to the requisite intent to use one’s official position

to secure the desired benefit , where it is possible for the

former to be present without the latter.

The following hypothetical situations may help to

illustrate the intent component of this particular violation.

Suppose a county commissioner decides to buy a new car. To that

end, having settled on a make and model, he goes to a local

dealership to negotiate the purchase. His object is to secure

for himself the personal benefit of the best possible deal on

the car of his choice.

Now, the beneficial act of negotiating for the low est

possible price on a new car is a commonplace ritual. No one

would seriously suggest that it is always unethical for a public

official to drive a hard bargain when purchasing a car. Section

112.313(6) simply does not forbid public officials from enter ing

into ordinary business transactions and using all of their

negotiating skills to obtain the best available terms. If,

therefore, our hypothetical commissioner secures the benefit he

desired (a low price) through savvy bargaining, he has not

committed an ethics violation, because he has not corruptly used

his official position to attain the benefit. The beneficial,

intentional act of negotiation, in other words, need not

necessarily be accompanied by the wrongful intent to use one’s

official position f or leverage.

Suppose instead:

A. In the course of dealing, the commissioner says to the

salesman, “You know, I’m a county commissioner, and I sit on the

committee that awards leases for county vehicles. We’re

probably going to lease a dozen or so ca rs in the next couple of

months —— and some smart dealer’s going to make some good money on

the deal. It sure would make a favorable impression on me if I

got a good price on this car today.” This comment reveals that

the intent to perform the otherwise pr oper and acceptable

beneficial act of negotiating for a low price is probably

accompanied by the wrongful intent to use the commissioner’s

official position to secure the desired personal benefit. Thus,

this situation exemplifies a probable violation of S ection

112.3413(6).

B. In the course of dealing, the commissioner says to the

salesman, “You know, my brother is the sheriff over in Ocean

County, and I understand he’s going to be leasing a bunch of

vehicles in the next month or two. If I get a good p rice on

this car today, you can be sure I’ll tell my brother to give you

folks a call.” This comment reflects an unseemly attempt at

influence peddling that could rightly be condemned. But Section

112.313(6) does not prohibit this particular impropriety,

because the commissioner is not attempting to use his official

position to secure the desired benefit.

C. Unbeknown to the commissioner, the salesman and his

manager decide to give the commissioner a very good deal because

they are aware that the com missioner (whom they recognize) is a

person of influence who could potentially steer county business

to the dealership, even though the commissioner has said nothing

whatsoever to them about such matters. In this situation, the

commissioner has not violat ed Section 112.313(6), because he has

not intentionally used his official position to attain the

desired benefit. As far as he knows, he obtained a good deal on

the strength of his negotiation. (Clearly, at some point, if

the price were low enough, the s ituation would be different. If

the salesman were offering, for example, to sell a $40,000 car

for $10,000, then the public official, it could be inferred,

would be intentionally taking advantage of his position if he

accepted. For simplicity’s sake, the hypothetical situations

here assume that the price is low but within the range of

reasonableness —— not, in other words, an obvious “steal.”)

D. Same facts as C, except that, additionally, in the

course of dealing, the salesman repeatedly refers to his

customer as “commissioner,” thereby making it clear that he (the

salesman) is aware of the customer’s official position. This

additional fact should not change the outcome. The salesman’s

use of the commissioner’s title could easily be understood as a

co mmon courtesy or politeness. It is not so unambiguous a

signal to the commissioner that he is receiving special

treatment as to convincingly support the inference that the

commissioner is intentionally trading on his position if he

proceeds without protes t.

E. Same facts as C and D, except that, additionally, when

the salesman is preparing the paperwork, he says, “Commissioner,

we hope you’ll remember this great deal when you’re awarding

those vehicle leases next month.” At this point, where the

salesm an’s comment strongly suggests that the good deal is

likely being offered because the customer is an influential

public official, the commissioner probably needs to speak up or

risk creating the inference, if he proceeds in the transaction

without protest, that he intentionally used his position to

secure a low price on the car.

As these hypothetical examples hopefully demonstrate, when

evaluating conduct in which private citizens as well as public

officials engage ( e.g. business transactions, sexually oriented

behavior, even sexual harassment) to determine whether the

ethics violation of misuse of public position was committed, the

analysis required to match the conduct to the specific elements

of Section 112.313(6) —— especially the element of intent —— is

necessarily more involved and nuanced than when the beneficial

act is one that only a public servant can perform ( e.g. issuing

a permit or license, “fixing” a ticket, or awarding a public

contract).

33 / Other assets in this context might include, without

limitation, charm, persistence, kindness, appearance, humor —— any

of the myriad attributes besides one’s job that contribute to a

person’s attractiveness to others.

COPIES FURNISHED :

Virlindia Doss, Esquire

Senior Assistant Attorney General

Attorney G eneral’s Office

PL - 01, The Capitol

Tallahassee, Florida 32399 - 1050

Mark Herron, Esquire

Messer, Caparello & Self, P.A.

Post Office Box 1876

Tallahassee, Florida 32302 - 1876

Bruce A. Minnick, Esquire

The Minnick Law Firm

Post Office Drawer 15588

Tallah assee, Florida 32317 - 5588

Bonnie J. Williams, Executive Director

Commission on Ethics

2822 Remington Green Circle, Suite 101

Post Office Drawer 15709

Tallahassee, Florida 32317 - 5708

Philip C. Claypool, General Counsel

2822 Remington Green Circle, Suite 101

Commission on Ethics

Post Office Drawer 15709

Tallahassee, Florida 32317 - 5709

Kaye Starling, Agency Clerk

Commission on Ethics

2822 Remington Green Circle, Suite 101

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 fi led with the agency that

will issue the Final Order in this case.