03-000199EC
In Re: Julianne Holt vs.
*
Status: Closed
Recommended Order on Thursday, October 30, 2003.
Recommended Order on Thursday, October 30, 2003.
1STATE OF FLORIDA
4DIVISION OF ADMINISTRATIVE HEARINGS
8IN RE: JULIANNE HOLT. ) Case Nos. 03 - 0122EC
18) 03 - 0199EC
22) 03 - 0200EC
26)
27RECOMMENDED ORDER
29Pursuant to notice, the Division of Administrative
36H earings, by its duly - designated Administrative Law Judge,
46Stephen F. Dean, held a formal hearing in the above - styled case
59May 27 through June 13, 2003, in Tampa, Florida.
68APPEARANCES
69For Advocate: James H. Peterson, III, Esquire
76Assistant Attorney General
79Attorney Generals Office
82Plaza Level One, The Capitol
87Tallahassee, Florida 32399 - 1050
92For Respondent: Gregory W. Kehoe, Esquire
98Kathleen Clark Ford, Esquire
102James, Hoyer, Newcomer
105& Smiljanich, P.A.
1084830 West Kennedy Boulevard
112Tampa, Florida 33609
115STATEMENT OF THE ISSUES
119The issues for det ermination are:
125I. Whether Respondent violated Section 112.313(6), Florida
132Statutes, by directing Public Defender's Office employees to
140work on Respondent's re - election campaign during their public
150working hours;
152II. Whether Respondent violated Section 112.313(6),
158Florida Statutes, by directing Public Defender's Office
165employees, during public working hours and using public
173resources, to prepare and deliver materials for courses that
182Respondent was teaching;
185III. Whether Respondent violated Section 112 .313(6),
192Florida Statutes, by directing a Public Defender's Office
200employee to take Respondent's personal automobile in for repairs
209during public work hours;
213IV. Whether Respondent violated Section 112.313(6),
219Florida Statutes, by directing a Public Defen der's Office
228employee to make personal bank deposits for Respondent and her
238mother during public work hours; and
244V. Whether Respondent violated Section 112.313(6), Florida
251Statutes, by directing Public Defender Office employees to type
260personal letters fo r Respondent during public work hours.
269PRELIMINARY STATEMENT
271On July 30, 2002, the Florida Commission on Ethics issued
281an order finding probable cause to believe that Respondent,
290Julianne Holt, while serving as the Public Defender for the
300Thirteenth Judic ial Circuit, violated Section 112.313(6),
307Florida Statutes, as outlined under the Statement of Issues,
316above. The case was forwarded to the Division of Administrative
326Hearings for assignment of an Administrative Law Judge on or
336about January 13, 2003.
340Pri or to the final hearing, the parties submitted a Joint
351Prehearing Stipulation containing a number of stipulations of
359fact and law. References to these stipulations will be as
369Stip - followed by the appropriate paragraph number as set
380forth under the admi tted facts section of the Joint Prehearing
391Stipulation.
392At the final hearing, the Advocate called six witnesses:
401Sharon Slater, Melissa Dearing, Wanda Moore, Christine Sleater,
409Vicky Butts and Respondent. The Advocate also called Nicole
418Hanscom for her t estimony regarding school work Ms. Hanscom had
429allegedly performed for Respondent after the finding of probable
438cause in this case, but objections to questions regarding that
448work were sustained on the grounds of relevance.
456The Advocate offered 16 pre - ma rked exhibits, numbers 1
467through 9, all of which were composites. Of those, the
477following were received into evidence: Advocates Exhibit 1L;
485Advocates Exhibits 2A through 2BB; Advocates Exhibits 3A, 3B,
4943F and 3G; Advocates Exhibit 5, consisting of an electronic
504disk ("Sharon Slaters" Disk #1), a file list of documents found
516on that disk, and selected printed hard copies with alphabetical
526file name identifiers in the lower right hand corner of each
537beginning with ELLER.MID through USAIR.LET, all of wh ich were
547received with the exception of one identified as ETHICADD.WPD,
556which was not received; Advocates Exhibit 6, consisting of an
566electronic disk (Sharon Slaters" Disk No. 2), a file list of
577documents found on that disk, and selected printed hard c opies
588with alphabetical file name identifiers in the lower right hand
598corner of each beginning with EVERIDGE.LET through WOOD.LET, all
607of which were received with the exception of those identified as
618INVENTOR.WPD and LANE.LET, which were not received; Advo cates
627Exhibit 7, consisting of an electronic disk, a file list of
638documents found on that disk, and selected printed hard copies
648with alphabetical file name identifiers in the lower right hand
658corner of each beginning with ADVERTIS.LIS and ending with
667YA RD.SIG, 1/ all of which were received, 2/ with the exception of
680one identified as STORE.SIG, which was not received; Advocates
689Exhibits 8B through 8N, 3/ with the exception of 8F, which was not
702moved; Advocates Exhibits 9A through 9II, with the exception of
7129P, 9Q and 9Z, which were not received; and Advocates Exhibits
72310, 12, 4/ 13, & 14. The Advocate also offered Exhibits 17 and
73619, which were received into evidence. 5/ All of the Advocates
747Exhibits that were received retained their original exhibit
755desi gnations. Although Advocates Exhibits 9JJ and 9KK were not
765received, they were proffered on the record. Reference to
774Advocatess Exhibits will be made as A - followed by the
786appropriate exhibit number and letter or file name designation.
795Respondent te stified on her own behalf and called 14
805witnesses: Jeanine Cohen, Samantha Ward, Lynn Perez, Marco
813LaMonte, Walter Elly, Doug Roberts, Nichole Hanscom, former
821Judge Frank Dennis Alvarez, Yolanda Olivo, Judge Gregory Paul
830Holder, Wanda Campbell, Jorge Loren zo, Judge Manuel Lopez, and
840Judge Raymond O. Gross. 6/
845Respondent offered 52 exhibits, all of which, with the
854exception of Respondents Exhibits 13, 14 and 23, were received
864into evidence as marked by the Respondent. The Administrative
873Law Judge reserved r uling on Respondents Exhibit 23. Although
883Respondents Exhibit 23 was eventually rejected at hearing, it
892was proffered on the record. References to Respondents
900exhibits received into evidence will be made as R - followed by
913the corresponding exhibit l etter.
918A transcript of the hearing was ordered by Respondent.
927References to the Transcript will be made as T - followed by
940the appropriate page number, with the witness identified in
949brackets. References to Judge Grosss deposition testimony will
957be mad e by T2 - with the page number.
968The parties submitted proposed recommended orders which
975have been read and considered in preparing this recommended
984order. All citations are to Florida Statutes (2002) unless
993otherwise indicated.
995FINDINGS OF FACT
998THE RE SPONDENT
10011. Respondent currently serves as the Public Defender for
1010the Thirteenth Judicial Circuit in Tampa, Florida, and has
1019served in that capacity since taking office after her election
1029in 1992.
10312. Respondent is subject to the requirements of Part III,
1041Chapter 112, the Code of Ethics for public officers and
1051employees, by virtue of the fact that Respondent serves as
1061Public Defender.
10633. Respondent is a public official within the meaning of
1073Part III, Chapter 112, Florida Statutes, by virtue of
1082Respon dents position as Public Defender, and is subject to the
1093provisions of Section 112.313(6).
10974. The Thirteenth Judicial Circuit Public Defender
1104Employee Manual, revised February 1, 1996, sets forth the Public
1114Defender Offices policies and standards appli cable during the
11231996 campaign.
1125BACKGROUND OF COMPLAINT TO ETHICS COMMISSION
11315. This complaint arose from allegations made by Scott
1140Moore and others, including members of Scott Moore's family to
1150the newspapers, the Florida Department of Law Enforcement and
1159the Ethics Commission. 7/
11636. Joe Moore, the patriarch of the family, was an old and
1175close friend of the Respondent. Their relationship was
1183described as being as close as brother and sister, and this
1194closeness extended to Joe's children: Scott, Mike and Melissa
1203Moore Dearing. In addition, Scott Moore married Wanda Granado,
1212who was secretary to the Respondent during a portion of time
1223covered by these charges.
12277. The Moore family assisted the Respondent at home and at
1238the office in a familial manner, painting, running errands, and
1248looking after one another. This was mutual, and the Respondent
1258tendered regular employment to three members of the family, and
1268part - time employment to Melissa when she was home on Christmas
1280and summer breaks from school.
12858 . Scott Moore was employed by Respondent in various
1295capacities. Scott Moore was, like all of the employees of the
1306office, an at - will employee serving at the pleasure of the
1318Respondent.
13199. There had been a history of problems with Scott Moore
1330arising fro m his failure to accept supervision from the
1340management staff of Respondent's office. Scott Moore
1347consistently went to his father, Joe Moore, who in turn went to
1359the Respondent in an effort to circumvent supervision. This
1368resulted in staff dissention to the extent that the Respondent
1378found it necessary to have a meeting with the Moores and their
1390supervisors to address this issue in 1999.
139710. At this meeting, the Respondent told the assembled
1406Moores that, notwithstanding their personal friendship, they
1413we re subject to the direction of their supervisors at work.
1424This was sufficiently disturbing to Scott Moore that he stood up
1435with such force at the meeting, that his chair rolled back into
1447the wall and knocked two pictures off the wall. He resigned,
1458and wa lked out of the meeting.
146511. His belongings were packed up by a secretary, but
1475Scott Moore returned, apologized to the Respondent, and asked to
1485come back to work. The Respondent permitted him to do so.
1496Scott Moore worked for the Public Defender's offic e until May 4,
15082000, at which time he was the network administrator for the
1519computer system of the Public Defender's office.
152612. After an investigation of an incident in which a
1536document was copied from a file, printed out, and left
1546anonymously in an em ployee's office, it was determined that
1556Scott Moore had improperly accessed the files of other employees
1566and inappropriately copied multiple materials from their files.
1574When confronted with the materials he had copied from files in
1585the office, he refused to explain his conduct. He was
1595discharged by Respondent on May 4, 2000, for accessing and
1605disseminating confidential documents, accessing employees
1610computer accounts, and general dereliction of duties. Scott
1618Moore's malfeasance included not backing up f iles as required
1628and not establishing firewalls between files as appropriate.
163613. When discharged, Scott Moore stated to the Respondent
1645that he would get even with her. Scott Moore made allegations
1656of misconduct by the Respondent to the local newspaper , the
1666Florida Department of Law Enforcement (FDLE), and the Florida
1675Ethics Commission.
167714. Because of the situation, the Respondent eventually
1685found it necessary to discharge Joe Moore, Scott's father. Mike
1695Moore, Scott's brother, and Wanda Granado Moo re, Scott's wife,
1705resigned their employment. In sum, the firings of Scott and Joe
1716did not favorably dispose the members of the family towards the
1727Respondent. Their animus is recognized in considering their
1735testimony.
173615. In addition, Scott Moore contacte d many former
1745employees of the Respondent's office and encouraged them to come
1755forward with any allegations of wrong - doing with which they were
1767familiar. As a result of this, allegations of wrong - doing going
1779back many years were presented to the Ethics Co mmission. Some
1790of the allegations were subject to the statute of limitations,
1800and this limited the testimony of some witnesses about their
1810actions and observations.
181316. One of the employees to come forward was Sharon
1823Slater, who was the Respondent's secr etary/assistant from 1993
1832until 1997 when she asked to be moved to a new social services
1845section in Respondent's office. Slater worked in social
1853services for over a year, but because of complaints and Slater's
1864failure to complete certain educational requi rements, she was
1873moved to a secretarial position in the office in October of
18841998. Slater tendered her resignation in April 1999, to be
1894effective at the end of that month; however, before the end of
1906the month, she became upset about the way an investigati on of
1918allegations she had made about Mike Moore's diverting mail
1927belonging to her was handled, most particularly about her
1936husband being contacted, and she resigned, effective
1943immediately.
194417. Slater was the source of much of testimony which was
1955introdu ced in support of the allegations that she and others did
1967personal and campaign - related work during working hours at the
1978direction of the Respondent. The "hard" evidence of this work
1988was taken from computer disks which Slater stated she copied in
19991999 fro m the hard disk of Respondent's secretary long after
2010Slater had left that position. The admissibility and
2018credibility of these records are at issue in these proceedings
2028as electronic records and as the printouts of those electronic
2038records.
203918. Although Slater testified that she copied all the
2048records on the disk, only portions of these records were being
2059introduced by the Advocate because other portions of the records
2069downloaded by Slater related to confidential client files.
2077Slater was able to remember some of the records/documents which
2087she had typed. Of the documents she identified, at least one
2098she remembered typing at her home. Some of the other
2108records/documents bore her initials as typist.
211419. Evidence was received from Melissa Moore Dearing that
2123she typed letters on the same computer as Slater, and letters
2134which she typed would have been saved upon the same directory
2145that Slater copied. However, Ms. Dearing could not
2153independently identify any of the letters which she typed.
2162Ms. Dearing als o stated that frequently when typing form letters
2173bearing the initials of Slater as the typist, that she forgot to
2185change them to reflect she had typed them.
219320. Nicole Hanscom, a person knowledgeable in the
2201operation of computers and the electronic files , testified. In
2210sum, she testified that the "last modified date" is the date
2221upon which the document was last saved. An existing document
2231can be accessed, modified, printed out, but not saved and it
2242will continue to reflect the date upon which it was pre viously
2254saved notwithstanding that it was the source of a hard - copy
2266piece of mail. Conversely, a document can be called up,
2276no changes made to it, and be saved, whereupon the file will
2288reflect the last date it was saved as being the date upon which
2301it was modified. These results are possible without any
2310intentional "tinkering" with the files by knowledgeable persons.
231821. Because of the ability to alter and manipulate files
2328as described above, these documents and records would have been
2338inadmissib le but for the Respondent agreeing to their
2347admissibility. Very little credence is placed in the disks, the
2357directories of the disks, and the materials printed from those
2367disks, notwithstanding their having been received.
2373CAMPAIGN ACTIVITIES
237522. Resp ondent ran for re - election as Public Defender in
23871996. Many of the activities for that campaign occurred in 1995
2398and 1996. A number of Public Defender Office employees were
2408involved in Respondents 1996 re - election campaign activities.
241723. Ms. Slater worked on Respondents 1996 re - election
2427campaign. This campaign work was voluntary and performed on
2436Ms. Slaters own time. Ms. Slaters volunteer activity for
2445Respondents 1996 re - election campaign included holding signs,
2454displaying a yard sign, working a campaign golf tournament, and
2464appearing at several campaign functions with other office staff.
247324. Notwithstanding Ms. Slater's testimony to the
2480contrary, it appears from the campaign rosters she signed and
2490the testimony of others that she was a acti ve participant in the
2503Respondent's campaign who did what she could to further the
2513Respondent's re - election. This is consistent with Slater's
2522perception of her own self interest about which she clearly was
2533concerned. As an at - will employee and secretary/a ssistant to
2544the Public Defender, it was highly unlikely she would be
2554retained by anyone who defeated the Respondent for the office.
256425. In addition, Ms. Slater also did other campaign work
2574for Respondents 1996 re - election campaign including typing
2583cam paign thank - you letters and keeping current a yard - sign list
2597for Ms. Holts review.
260126. Many of the campaign thank - you letters typed by
2612Ms. Slater were prepared on Public Defender office computers.
2621Some were prepared on a Public Defender laptop at Ms. S laters
2633home; however, many were prepared on a Public Defender computer
2643during public work hours.
264727. Ms. Slater volunteered to maintain and update a typed
2657list of sign locations and people who volunteered to display
2667campaign signs for Respondents re - el ection campaign.
2676Information regarding signs came to Ms. Slater in writing and
2686verbally from a variety of persons. The Respondent frequently
2695provided information to Slater in the form of sticky notes,
2705which included information on persons volunteering to put a sign
2715up at their business or home.
272128. A folder was maintained on Slater's desk into which
2731notes about thank - you letters and sign information were placed
2742by the Respondent or other office staff. Ms. Slater would also
2753get information for the sign placements from telephone calls
2762made to the office and from other employees.
277029. Although Sharon Slater occasionally updated the sign
2778lists on a Public Defender Office computer at her home, some of
2790the updates were done during public work hours.
279830. As pointed out in Respondent's proposed findings, the
2807modified dates when compared with the Respondent's calendar
2815reveal that many of the documents were prepared when the
2825Respondent was out of the office. Clearly, the Respondent was
2835unaware of what Slater di d at Slater's home. Although Slater's
2846testimony establishes that she prepared campaign letters and
2854maintained the sign list at work and on equipment belonging to
2865the Public Defender's office, she did so outside the presence of
2876the Respondent and without R espondent's knowledge.
288331. Credible evidence was received from many witnesses
2891that Slater and all the other employees of the Respondent's
2901office were instructed that they should not and could not engage
2912in campaign activities at the office.
291832. The R espondent provided a campaign office down the
2928street from her office where volunteers could work. It was
2938announced to the employees that they should do campaign work
2948there or at home and not on state time.
295733. The Respondent was not constrained by law fr om putting
2968notes about signs or other campaign work she wanted accomplished
2978in Ms. Slater's campaign work folder. It was understood that
2988this work was not to be performed in the office.
299834. Evidence was received that employees were counseled
3006about fail ing to obey the directive not to do campaign work on
3019the job. As stated above regarding the thank - you letters, the
3031fact that much of the work alleged to have been done by Slater
3044at work was done when the Respondent was not in the office
3056substantiates that when work was done at the office by Slater it
3068was in contravention of the policy.
307435. Melissa Moore Dearing, 8/ who worked as an OPS employee
3085for the Public Defenders Office on and off for years, also
3096prepared campaign thank - you letters for the campaign. She
3106obtained her work assignments from Slater's desk, and received
3115her instruction in the same manner as Slater, by writings on
3126legal paper or sticky - notes. It appeared that, except when
3137pursuing a particular project for the Respondent, Dearing
3145received her work assignments from Slater.
315136. Dearing testified that she did not remember receiving
3160any instructions on what she could and could not do for the
3172campaign during office hours. It was clear from her testimony
3182as a whole, that Dearing appreciated the job opportunities
3191inherent in her OPS work for the Respondent, and was willing to
3203do any work she was given to do. Although a member of the bar
3217at this time and more knowledgeable of the restrictions imposed
3227upon officers and employees, at the time t hese events occurred,
3238Dearing did not consider her actions illegal or inappropriate.
324737. Christine Sleater worked at the Public Defenders
3255Office from January 1993 until 1998.
326138. While an employee of the Public Defenders Office,
3270Ms. Sleater worked a s an administrative assistant; was promoted
3280to computer trainer during the beginning of 1996; and,
3289thereafter was promoted to director of automated systems, which
3298position she held until leaving in 1998. From 1994 until the
3309early part of 1996, Ms. Sleater did work as an administrative
3320assistant for the Respondent as a back - up to Ms. Slater.
333239. Ms. Sleater prepared at her home thousands of thank -
3343you letters for the Respondents campaign.
334940. After completing the campaign letters, Ms. Sleater put
3358th em in an interoffice envelope and either gave them to Sharon
3370Slater or placed them in the Respondents in - box.
338041. The Respondent directed Ms. Sleater to tell the head
3390of the Public Defenders Office technology department, Mike
3398Effner, to let her take a computer home so that she could do the
3412thank - you letters. Mr. Effner was in charge of the computers at
3425the Public Defender's office and for the campaign and was
3435Ms. Sleaters boss at the time.
344142. The Respondent testified that Mike Effner advised her
3450that he had several of his own computers which were available to
3462people working in the campaign. Her testimony was confirmed by
3472others.
347343. It is alleged that computer Ms. Sleater used was one
3484belonging to the Public Defender's office. Even if Mr. Eff ner
3495did provide Ms. Sleater a Public Defenders Office personal
3504computer and printer, the Respondent did not know that
3513Ms. Sleater was using Public Defender Office equipment to
3522prepare thank - you letters for Respondents 1996 campaign.
353144. Ms. Vicky Butts served as the Respondents Budget
3540Director for the Public Defenders Office from March 1994 until
3550March 1999, and was in charge of the Public Defenders Office
3561computer inventory. Ms. Butts testified that Christine Sleater
3569had Public Defender Office equi pment at home to work on the
3581Respondents 1996 re - election campaign. She based her
3590recollection upon a diary entry made in October 1996, regarding
3600an office collection that was taken up for Ms. Sleaters
3610birthday gift. While Butt's recollection may have been jogged
3619by this unrelated diary entry, it certainly does not buttress
3629her testimony. Neither her testimony nor that of Sleater
3638demonstrates that the Respondent knew that Effner had provided
3647Sleater a Public Defender office machine as opposed to comput er
3658owned by Effner which was the Respondent's intent.
366645. Although Sleater testified she got an office machine,
3675the Respondent testified that Sleater did not sign out for one
3686according to internal equipment inventories. Butts testified
3693Sleater did sign o ut for a Public Defender computer. The
3704inventories were not introduced by either the Advocate or the
3714Respondent. The testimony is conflicting.
371946. The fact that most of the Respondents requests for
3729the preparation of campaign thank - you letters were m ade on notes
3742written by Respondent and placed in Sharon Slaters in - basket
3753during office hours does not establish that the Respondent knew
3763or should have been on notice that campaign thank - you letters
3775were being prepared in the office on Public Defenders Office
3785Equipment during public work hours.
379047. The procedure was for those personnel who were typing
3800letters to pick up letters to be typed from the folder on
3812Slater's desk; to type them at home or at the campaign office;
3824print them out at the campaign office; and return them to the
3836Respondent for signature. The Respondent verified that the
3844campaign letters were delivered to her at the Public Defenders
3854Office during public work hours. These were placed in an old
3865brief case reserved for campaign relate d materials and picked up
3876and delivered to the Respondent at various places.
388448. After the Respondent signed the letters on campaign
3893stationary, the Respondent put them back in Sharon Slaters in -
3904box at the Public Defenders office, and Sharon Slater ha d them
3916mailed out, using postage that was paid for by Respondents 1996
3927re - election campaign.
393149. Sharon Slater's testimony that she complied with
3939Respondents requests because she was afraid if she complained
3948she would lose her job is not credible. He r testimony that she
3961was afraid she would lose her job if she did not work to get the
3976Respondent re - elected is credible because as an at - will
3988employee, she very likely would have been replaced by a new
3999incumbent.
400050. Melissa Moore Dearing complied with the Respondents
4008requests because the Respondent provided her with employment
4016during school breaks at Christmas and summers. She recognized
4025that she was extremely fortunate to have such a benefactor in
4036the Respondent's position.
403951. All employees of th e Public Defender's Office were at
4050will employees. The Public Defender Employee Manual effective
4058during the 1996 campaign explains:
4063All employment and compensation with the
4069Public Defenders office is at will in
4076that any employee can be terminated wit h or
4085without cause, and with or without notice,
4092at any time, at the option of either the
4101Public Defender or yourself, except as
4107otherwise provided by law. All employees
4113are exempt from the State of Florida Career
4121Service System and serve at the pleasure o f
4130the Public Defender.
413352. Sharon Slater did feel uncomfortable about working on
4142the Respondents campaign during public work hours on Public
4151Defenders Office equipment. The record in this case indicates
4160that she engaged in these activities when the Respondent was out
4171of the office.
417453. The extra copies of the campaign materials which Slater
4184stated she printed out and retained on the day that they were
4196prepared were received into evidence; however, having had access
4205to the disks, she could have printed them out at any time, and,
4218as long as she did not execute a save on the document, it would
4232have retained its original "modified" date. The campaign letters
4241would have gone out on campaign letter head which was blue and
4253yellow. Clearly the copies introduced may have been drafts, but
4263they were not unsigned copies of final documents.
427154. The Respondent was aware that it was improper for
4281office staff to work on the Respondents campaign during office
4291hours. The Respondent testified that the typin g of campaign
4301letters on Public Defenders Office equipment and during office
4310time was not appropriate. These prohibitions were emphasized
4318with all personnel from her office who were working on the
4329campaign.
433055. The Respondents manual for Public Defen der Employees
4339which was in use during the 1996 campaign states: Employees will
4350not engage in political activity during working hours. The
4359manual also stated that office equipment was to be used
4369exclusively for Public Defender business purposes.
437556. The re is no evidence that the Respondent knew that
4386personnel were typing campaign letters on office equipment.
4394Slater and Dearing testified they "concluded" that the Respondent
4403knew, but their conclusions were conjectural.
440957. The allegation that the Res pondent "directed" both
4418Sharon Slater and Melissa Dearing to type campaign - related
4428documents during public campaign work hours is based upon the
4438assumption that placing the campaign work into a folder on
4448Slater's desk during the day constituted a clear cou ntermand of
4459the instructions not to use Public Defenders Office equipment
4468and not to work on public time.
447558. The facts show that campaign materials were kept
4484separate in the office; that employees received appropriate
4492instructions regarding what they could and could not do; and that
4503Slater's work on campaign materials occurred when the Respondent
4512was out of the office.
451759. There is no evidence that the Respondent ever
"4526directed" Slater or Dearing to do campaign work at the office on
4538office equipment , and there is no evidence that the Respondent
4548knew that Public Defender equipment was used for campaign
4557purposes.
4558PREPARATION AND DELIVERY OF COURSE MATERIAL
456460. After becoming Public Defender, the Respondent began
4572teaching as an adjunct professor a t local colleges and
4582universities. Prior to this time, other than substitute
4590teaching in law school, the Respondent had never taught. The
4600first institution where the Respondent taught was Hillsborough
4608Community College in 1995. She has since taught cour ses at the
4620University of Tampa, the University of South Florida, and the
4630University of Phoenix.
463361. The Respondent taught a course in American Government
4642at Hillsborough Community College in the Spring and Fall
4651semesters of 1995. The Respondent was pai d $1,500 per semester
4663for teaching American Government at Hillsborough Community
4670College.
467162. After that, the Respondent taught one semester, at the
4681University of Tampa in 1998 or 1999 and was paid $1,000 for her
4695teaching.
469663. The Respondent taught one semester at University of
4705South Florida (USF) in 1997, and then taught at USF the spring
4717and fall semesters of 1998, the spring and fall semesters in
47281999, and one semester in 2000. The Respondent was paid $2,500
4740for each semester she taught a t USF.
474864. The Respondent has taught at the University of Phoenix
4758since 1998. The University of Phoenix is a private university.
4768Respondent receives between $1,300 and $1,600 for each 6 week
4780term of classes, consisting of one 4 - hour class each week, that
4793she taught at the University of Phoenix.
480065. Throughout her tenure as an adjunct professor, the
4809Respondent has used Public Defender office staff and resources
4818during public work hours to prepare course materials for her
4828students. She has used her secretary/assistants to type lesson
4837plans, type syllabi, type and edit examinations, deliver
4845materials, and proctor make - up examinations for the courses that
4856Respondent was teaching. In one instance, Melissa Dearing
4864proctored one or more examinations for the Respondent at night,
4874but purely on a voluntary basis. 10/
488166. While most of the documents typed by staff in support
4892of this activity were between one and three pages, the total,
4903over time, cannot be considered de minimus . Neither can the
4914income be called de minimis from teaching these courses, which
4924for a portion of the time ran between $2,500 and roughly $7,500
4938annually.
493967. Slater and Melissa Moore Dearing readily assented to
4948doing this work, and Dearing volunteered to proctor the
4957examinatio ns at night. Wanda Granado Moore assented to the
4967preparation of these materials, and records indicate that she
4976was paid between $5,000 and $6,000 in overtime. The Respondent
4988did not feel that these activities at work were wrong; she
4999considered that the w ork was within the range of work which
5011could be assigned to these personnel; but she did not consider
5022it contrary to their duties or to her duties.
503168. The Respondent asserts that her actions were justified
5040because there was an overriding public purpo se to her teaching.
505169. In support of her argument that her teaching served a
5062public purpose, the Respondent offered the testimony of several
5071judges and retired judges.
507570. The reason that a judge's teaching serves a public
5085purpose is that the Code of Professional Responsibility
5093encourages judicial officers to educate bench, bar, and the
5102public about the law. The de minimis use of public office
5113resources to assist in teaching courses is not inconsistent with
5123a judge's public duties. All of the jud ges who testified
5134indicated that the use of public resources should be de minimis
5145in light of the requirements that it not interfere with the
5156performance of the judge's judicial duties.
516271. Although a public purpose is served by education, and
5172teaching is not antithetical to the duties of the Public
5182Defender, unlike judges, education is not part of the
5191Respondent's public duties. Therefore, her teaching does not
5199further the aims and goals of her office. Although the
5209Respondent contends that she really does not teach for the pay
5220and that her outside teaching activities are a form of
5230community service, as stated above, her compensation was more
5240than de minimis and must be considered as personally benefiting
5250the Respondent.
5252DIRECTING PUBLIC EMPLOYEE TO TAKE
5257RESPONDENTS PERSONAL AUTOMOBILE IN FOR REPAIRS
526372. It is alleged that on more than five occasions while
5274Sharon Slater was employed as Respondents secretary with the
5283Public Defenders Office, Respondent had Ms. Slater take or
5292retrieve Respondent s Mercedes from the repair shop during
5301public work hours. At least some of these occurrences were
5311after August of 1995 and in 1996. Other Public Defenders
5321Office employees also took Respondents car to the shop. On at
5332least some of these occasions, an other Public Defender Office
5342employee was also required for the pick - up or delivery of the
5355vehicle.
535673. One of the repair shops where Ms. Slater dropped off
5367or picked - up the Respondents car was located approximately 10
5378to 15 minutes from the Public De fenders Office. One of the
5390shops she used was immediately across the street from the
5400Respondent's office.
540274. One of the problems with these allegations and the
5412evidence presented in support of them is that they are vague
5423with regard to when, where, w hy and how the event(s) occurred.
5435If two employees were involved, and if it was during work hours,
5447and if the garage to which the car was delivered was the one
5460further away, then the pick - up or delivery of the Respondents
5472automobile might require approxi mately one hour of Public
5481Defender Office staff time, and if it was after October of 1995,
5493it would not be barred by the statute of limitations.
550375. If the accusation is that the Respondent directed
5512Slater to pick up or take her car to the garage, the e vidence
5526adduced from several members of the staff and the Respondent was
5537that Sharon Slater volunteered to take Respondents car to and
5547from the repair shop. Sharon Slater's testimony is not credible
5557that she did not volunteer. Slater may have felt this was
5568demeaning, but her public demeanor and overt conduct was one of
5579helpful collegiality, and there was specific testimony stating
5587she volunteered to pick up the Respondent's car during at least
5598one staff conference. In addition to the conference mentione d
5608above, other instances in which staff picked up or took the
5619Respondent's car included when the Respondent was in trial.
562876. The judicial district the Respondent is in covers a
5638large geographic area. Her car is a tool in her management of
5650her office. Sharon Slater's was more than a secretary for the
5661Respondent; she also assisted her in non - clerical duties. While
5672taking or picking up the Respondents automobile benefited the
5681Respondent personally, if it permitted the Respondent to stay in
5691a staff meet ing rather than leaving to pick up the car before
5704the garage closed, it directly supported and assisted the Public
5714Defender in conduct of her office. The "service" was for more
5725than the Respondent's benefit.
572977. In sum, Slater's allegations and the evidence
5737presented in support of them are vague as to time, number and
5749circumstances, to include whether Slater made up the lost time.
5759They are vague about how many occurred with the period for which
5771Respondent can be prosecuted.
577578. The long delay be tween the events complained of and
5786the prosecution of this case prevent either side from presenting
5796the detail necessary to determine this issue. The Advocate's
5805original allegations went to the Respondent's "requiring" Slater
5813to pick up the car; however, the evidence showed categorically
5823that this was not the case. The Advocate failed, as stated
5834above, to show how many times this happened; when it happened;
5845the circumstances under which it happened; and whether Slater
5854failed to make up the time if she vol unteered to pick up the
5868car. These details are necessary to determine whether there is
5878no benefit to the state and a violation, and to determine if it
5891is not barred by the statute of limitation.
5899DIRECTING A PUBLIC EMPLOYEE TO MAKE BANK DEPOSITS
5907FOR RESP ONDENT AND HER MOTHER DURING PUBLIC WORK HOURS
591779. Throughout the Respondents tenure as Public Defender,
5925Joseph Moore, while employed as an investigator for the Public
5935Defenders Office, made bank deposits for the Respondent and her
5945mother dur ing public work hours.
595180. The overwhelming evidence is that all of these
5960deposits were made by Moore voluntarily, frequently in
5968conjunction with the deposit of his own check, and while in the
5980direct pursuit of other office business in such manner tha t the
5992loss of time was negligible.
599781. As stated above regarding the pick up of the car, when
6009the errand is undertaken voluntarily, and the public is better
6019served by having the subordinate take care of a personal task
6030for an official, it serves a publi c purpose. If it is not
6043voluntary, it opens the door to abuse. In this case, there is
6055no question that it was voluntary, and the public was not ill -
6068served by Moore's actions.
6072DIRECTING PUBLIC EMPLOYEES TO TYPE
6077PERSONAL LETTERS DURING PUBLIC WORK H OURS
608482. The evidence shows that Sharon Slater typed up a
6094number of documents unrelated specifically to Public Defender
6102business during public work hours on Public Defender Office
6111equipment while Ms. Slater was employed as the Respondents
6120assistant.
61218 3. Campaign letters are discussed above. The Respondent
6130admits that Slater typed other non - legal materials for her.
6141These documents include thank - you letters, business letters, and
6151other type - written materials not related to the Public
6161Defender's office or campaign.
616584. The Respondent gave the thank - you and business letters
6176to Slater to be typed as part of her general work. An example
6189of this type of correspondence is Advocate's Exhibit 6 Slater -
6200S \\ McDowell.let, which is a letter thanking Mr. McDowel l for
6212inviting her to an event welcoming an Olympic Gold Medalist.
6222While this is not legal in nature, it clearly is not a campaign
6235letter, but one of the type of letters that elected officials
6246write to constituents thanking them, congratulating them, and
6254recognizing them. This type of correspondence is not
"6262personal," and it generally furthers the work of the office.
627285. Other letters which the Respondent had Slater type
6281were business letters not related to the Public Defender's
6290office. They include , but are not limited to, letters about a
6301leasehold interest, a letter tendering payment of a credit card
6311bill, and a release of liability for a pet grooming business in
6323which the Respondent had an interest. See Slater_S \\ Hobbs.let;
6333Slater_S \\ Julpet.WPD; Sl ater_S \\ RCI.let; Slater_S \\ USAIR.Let.
634386. According to the Respondent, Ms. Slater always
6351volunteered to type up the private business documents because
6360she was the Respondents friend. Ms. Slater, however, testified
6369that she typed up the documents because the Respondent directed
6379her to do so. It is more consistent with Slater's general
6390conduct that she volunteered to type these documents.
639887. The evidence clearly showed Slater typed the personal
6407documents for the Respondent on the Public Defender Offic e
6417computer and on public time.
642288. The Respondent contends that occasional use or
6430incidental abuse of Public Defender Office equipment for
6438personal letters, on a minimal basis, was permitted. The
6447Respondent was not the only person to take advantage of this
6458opportunity, and the files presented included a letter Slater
6467had written in her own behalf, and a letter she had written in
6480Scott Moore's behalf.
648389. Ms. Slater served as the Respondent's assistant for
6492four full years. In mitigation, the person al business letters
6502typed for Respondent presented at the hearing given the time
6512covered are not numerous.
6516CONCLUSIONS OF LAW
651990. The Division of Administrative Hearings has
6526jurisdiction over the parties and the subject matter of this
6536proceeding. Secti on 120.57(1).
654091. Section 112.322 and Rule 34 - 5.0015, Florida
6549Administrative Code, authorize the Commission on Ethics to
6557conduct investigations and to make public reports on complaints
6566concerning violations of Part III, Chapter 112 (the Code of
6576Ethics for Public Officers and Employees).
658292. The burden of proof, absent a statutory directive to
6592the contrary, is on the party asserting the affirmative of the
6603issue of the proceedings. Department of Transportation v.
6611J.W.C. Co., Inc. , 396 So. 2d 778 (Fla. 1st DCA 1981); Balino v.
6624Department of Health and Rehabilitative Services , 348 So. 2d 349
6634(Fla. 1st DCA 1977). In this proceeding, it is the Commission,
6645through its Advocate, that is asserting that Respondent violated
6654Section 112.313(6). Therefore, the b urden of establishing by
6663clear and convincing evidence the elements of Respondents
6671violations is on the Commission.
667693. The Supreme Court of Florida in In Re Davey , 645 So.
66882d 398, 404 (Fla. 1994), quoting Slomowitz v. Walker , 429 So. 2d
6700797, 800 (Fla. 4th DCA 1983), stated:
6707[C]lear and convincing evidence requires
6712that the evidence must be found to be
6720credible; the facts to which the witnesses
6727testify must be distinctly remembered; the
6733testimony must be precise and explicit and
6740the witnesses must be lac king in confusion
6748as the to facts in issue. The evidence must
6757be of such weight that it produces in the
6766mind of the trier of fact a firm belief or
6776conviction, without hesitancy, as to the
6782truth of the allegations sought to be
6789established.
679094. The Supreme Court of Florida also explained that
6799although the clear and convincing standard requires more than
6808a preponderance of the evidence, it does not require proof
6819beyond and to the exclusion of a reasonable doubt. Id.
682995. Section 112.313( 6) provides:
6834MISUSE OF PUBLIC POSITION. No public
6840officer, employee of an agency, or local
6847government attorney shall corruptly use or
6853attempt to use his or her official position
6861or any property or resource which may be
6869within his or her trust, or perfor m his or
6879her official duties, to secure a special
6886privilege, benefit, or exemption for
6891himself, herself, or others. This section
6897shall not be construed to conflict with
6904s. 104.31.
690696. The term "corruptly" is defined by Section 112.312(9)
6915as follows:
6917'Corruptly' means done with a wrongful
6923intent and for the purpose of obtaining, or
6931compensating or receiving compensation for,
6936any benefit resulting from some act or
6943omission of a public servant which is
6950inconsistent with the proper performance of
6956his or her public duties.
696197. The issues for determination are:
6967I. Whether the Respondent violated Section 112.313(6),
6974Florida Statutes, by directing Public Defender's Office
6981employees to work on the Responden t's re - election campaign
6992during their public working hours;
6997II. Whether the Respondent violated Section 112.313(6),
7004Florida Statutes, by directing Public Defender's Office
7011employees, during public working hours and using public
7019resources, to prepare and de liver materials for courses that the
7030Respondent was teaching;
7033III. Whether the Respondent violated Section 112.313(6) by
7041directing a Public Defender's Office employee to take
7049Respondent's personal automobile in for repairs during public
7057work hours;
7059IV. Wh ether the Respondent violated Section 112.313(6) by
7068directing a Public Defender's Office employee to make personal
7077bank deposits for the Respondent and her mother during public
7087work hours; and
7090V. Whether the Respondent violated Section 112.313(6) by
7098direc ting Public Defender Office employees to type personal
7107letters for the Respondent during public work hours.
7115First Issue
711798. Regarding the first allegation that the Respondent
7125directed Public Defender's Office employees to work on
7133Respondent's campaign du ring public working hours, the evidence
7142does not support a finding that the Respondent did this. This
7153allegation is built upon the testimony of Ms. Slater and Mrs.
7164Dearing that the Respondent "directed" them do to campaign work
7174on the job. Their testimon y taken at its broadest was that the
7187Respondent placed campaign - related work into a folder on
7197Slater's desk with sticky notes or other written directions as
7207to what should be done.
721299. Slater's testimony that she did campaign work in the
7222office is credibl e; however, she did this because she believed
7233that her continued employment was tied to the Respondent's
7242winning re - election, and it was easier for her to do this work
7256at her own desk, on the Public Defender's equipment, during
7266working hours than it was fo r her to go the campaign office over
7280lunch or after work. However, there is no evidence that the
7291Respondent knew this or condoned it. In fact, if one compares
7302the dates much of the work was done with the Respondent's
7313calendar, one finds that Slater did m uch of the campaign work
7325while the Respondent was out of the office.
7333100. Mrs. Dearing, who has some animus towards the
7342Respondent, testified that the Respondent never told her to do
7352anything, but that she got her work assignments from notes stuck
7363to docu ments and telephone messages. She did not remember being
7374told not to do campaign work during the campaign; however, she
7385indicated that her failure to remember did not mean she did not
7397receive the instructions, just that she did not remember it.
7407The evide nce does not show the Respondent directed Dearing to do
7419campaign work at the office.
7424101. While there is no specific allegation regarding the
7433use of Public Defender office equipment in the campaign, the
7443Advocate did not prove that the Respondent improperl y directed
7453or permitted the use of Public Defender office equipment in the
7464campaign. Again the issue is whether the Respondent was aware
7474of the usage.
7477102. The testimony of Ms. Sleater was offered to show that
7488the Respondent "ordered" Mike Effner to le t Sleater take a
7499computer home to do campaign work. Effner, who was in charge of
7511computers at the office and for the campaign, had computers
7521available that were not office computers for campaign workers.
7530The Respondent's intent was that Sleater get a camp aign
7540computer.
7541103. Sleater testified she had an office computer which
7550she kept until she left the office and typed office work on it
7563long after the campaign was over. It is conceivable that
7573Sleater was given an office computer by Effner; however, the
7583issue ultimately is whether the Respondent was aware that Effner
7593gave Sleater a Public Defender computer for campaign work. The
7603evidence is not clear and convincing on this point.
7612Third Issue
7614104. Passing over the second issue, the third issue was
7624the al legation that the Respondent directed employees to take
7634her personal automobile in for repairs during working hours.
7643This allegation was based primarily upon the testimony of
7652Slater, who testified that she took the car to and from the shop
7665for the Respond ent because she feared for her job. The
7676testimony of Slater that she feared for her job was not
7687credible.
7688105. Credible evidence was received that Slater
7695volunteered to pick up and take the Respondent's car to the
7706garage. Slater's volunteering was not u nusual because she was
7716always friendly, helpful and collegial towards the Respondent
7724and others in the office. There was evidence that professional
7734staff frequently helped the Respondent in getting her car to the
7745shop, and that she reciprocated in assisti ng them. Credible
7755evidence was received that Slater's offers were generally in the
7765context of helping the Respondent when there was a conflict
7775between picking the car up and conducting Public Defender office
7785business. It was not proven that the Responden t directed Slater
7796to take the Respondent's car to the shop, or that the functions
7808of the office were not facilitated by permitting Slater to do
7819this on public time. Further the indefiniteness as to dates
7829raises issues about which, if any, of the incidents occurred
7839within the period not barred by the statute of limitations.
7849Fourth Issue
7851106. The fourth allegation is that the Respondent directed
7860Joe Moore and others to take bank deposits to the bank for her
7873and her mother. The facts showed that Joe Moore took back
7884deposits to the bank for the Respondent and her mother. This
7895was part of a multitude of things which Moore did for the
7907Respondent voluntarily before and after coming to work for the
7917Public Defender's office. Joe Moore did not testify; however,
7926credible evidence was received that he voluntarily did these
7935errands in the context of making his own deposits and doing his
7947own work in such a way that the loss of time from his job was
7962non - existent. There was no credible evidence about "other"
7972people t aking bank deposits. The allegation that the Respondent
7982directed personnel to make bank deposits for her was not proven.
7993Issue Five
7995107. The fifth allegation is that the Respondent directed
8004employees to type personal letters during public work hours.
8013The letters which were introduced in support of this allegation
8023were letters which were down - loaded by Slater after she was the
8036Respondent's secretary/assistant. Slater testified that she
8042went into Holt's file folder and downloaded the files that were
8053t here indiscriminately. Slater was unable to identify many of
8063the documents that were on these disks. Some of the documents
8074on these disks were identified by others as having been typed by
8086them, and being related to work within the office. Further,
8096becau se they contained confidential files relating to litigation
8105that is on - going in the Public Defender's office, the disks
8117themselves could not be introduced. What was tendered were
8126selected documents extracted from these disks. This evidence
8134generally does not meet the standards of reliability such that
8144it would be used to determine critical issues. It would not be
8156considered in this case if many of these documents had not been
8168identified by the Respondent, and she had not admitted that
8178Slater typed them. However, the Respondent also testified that
8187Slater voluntarily typed these letters for her, and her
8196testimony is credible. Unfortunately, it is immaterial whether
8204Slater did this voluntarily or was directed to type the letters.
8215In either case, the typin g of certain of the letters was
8227improper.
8228108. These letters fall into three categories: campaign
8236related; letters of thank - you, congratulation, or regret from
8246Respondent as the Public Defender; and the Respondent's non -
8256Public Defender business. The c ampaign letters are discussed
8265above, and were not the responsibility of the Respondent.
8274109. The letters identified in the findings as being those
8284of thank - you, regret and congratulation from the Public Defender
8295are expected from public officials, and w ere properly typed by
8306official staff.
8308110. This leaves the Respondent's non - public defender,
8317business letters typed for the Respondent.
8323111. While the number of these letters are few in relation
8334to time, they are a violation of the provisions of Se ction
8346112.313(6).
8347112. The penalty suggested by the Advocate is totally
8356inappropriate in terms of the value of the letters typed. The
8367penalty imposed should consider the costs of a business letter
8377and the number of letters written over the seven - year p eriod.
8390Issue Two
8392113. The penalty for the violations is within the
8401discretion of the Commission, but should consider the nature and
8411extent of the violation.
8415114. The second issue is that the Respondent directed
8424employees of the office to prep are and deliver materials for
8435courses the Respondent was teaching.
8440115. There is no question that the Respondent asked
8449Slater, Dearing and others to prepare various materials to
8458include lesson outlines, rosters, syllabi, and grade reports in
8467support of her teaching courses between 1995 and 2000. These
8477were generally less than three pages in length and would have
8488taken no more than three to five minutes to prepare.
8498116. The Respondent does not deny doing this. Her defense
8508is that there was no intent t o violate the law and she was not
8523on notice that this was wrong. In support of this argument, the
8535Respondent points to various judicial officers who taught for
8544compensation and used de minimis amounts of staff time in
8554support of their activities. The con duct of the judges is not
8566in question, and this is not a comment on the appropriateness of
8578their conduct because they are regulated by a different set of
8589rules.
8590117. Canon 4 of the Code of Judicial Conduct encourages
8600judges "to speak, write, lecture, teac h and participate in other
8611quasi - judicial activities concerning the law, the legal system,
8621the administration of justice, and the roles of the judiciary
8631. . . subject to the requirements of this Code." The Code
8643provides that these other duties shall not interfere with the
8653proper performance of judicial duties.
8658118. The judges who testified uniformly stated that they
8667felt that minimal use of staff to support their teaching was not
8679precluded, but that they minimized staff involvement so that it
8689would no t interfere with the proper performance of judicial
8699duties.
8700119. The majority of the staff usage by the Respondent was
8711limited to items of only a few pages. This typing did not
8723interfere with the performance of Respondent's duties; however,
8731the Responden t is not governed by the Judicial Canons.
8741120. The Respondent is governed by another set of rules
8751which provides that "[N]o public officer . . .shall corruptly
8761use . . . her official position or any property or resource
8773which may be within . . . her trust . . . to secure a special
8789privilege, benefit, or exemption for . . . herself or others."
8800121. The statute defines "corruptly" to mean "done with a
8810wrongful intent and for the purpose of obtaining . . . or
8822receiving compensation for . . . some act or omis sion of a
8835public servant which is inconsistent with the proper performance
8844of . . . her public duties."
8851122. The issue of wrongful intent is a matter for the
8862trier of fact to determine. Dobry v. State , 211 So. 2d 127
8874(Fla. 3d DCA 1968). The court in Bl ackburn v. State , 589 So. 2d
8888431 (Fla. 1st DCA 1991) stated regarding "wrongful intent" that
"8898[A]n essential element of the charged offense under section
8907112.313(6) is the statutory requirement that appellant acted
8915with wrongful intent, that is, that she a cted with reasonable
8926notice that her conduct was inconsistent with the proper
8935performance of her public duties and would be a violation of the
8947law of code of ethics[.]"
8952123. Unlike a judge, the Public Defender is not
"8961encouraged to speak, write, lecture, teach and participate in
8970other quasi - judicial activities[.]" There is no duality of
8980function to warrant the expenditure of staff time to support the
8991Respondent's activity in this regard. However, for the most
9000part, this use of staff was de minimis except for the outline
9012prepared by Dearing. Regarding the outline of the book prepared
9022by Dearing, it appeared that this was "make work" for Dearing
9033during one of Dearing's periods of employment. It was a major
9044part of Dearing's effort and was not in support o f the office's
9057mission. However, this was one occurrence of limited scope.
9066124. In considering whether a violation occurred, the dual
9075scope of the violation must be considered. There was a long -
9087term, on - going misuse of staff about which there could be s ome
9101confusion, and there was a short - term, major misuse of Dearing's
9113time about which little confusion could have existed. However,
9122this latter violation had more to do with misuse of position by
9134hiring a friend's daughter for a "make work" job than with
9145teaching.
9146125. The Respondent's de minimis use of staff was a
9156violation because she is presumed to know the nature and scope
9167of her duties. I do not find that this should be severely
9179penalized; first, because this is a case of first impression,
9189and, se cond, because it was de minimis use of staff. Regarding
9201the misuse of Dearing, I find that this clearly violated this
9212provision; however, this misuse was of limited duration and
9221really unrelated to teaching.
9225126. Based upon these considerations, a pena lty in the
9235range proposed by the Advocate, an amount equal to or greater to
9247the Respondent's total income for teaching during the period,
9256seems unduly large. 11/
9260127. Requiring the Respondent to repay Dearing's salary
9268for the period she was engaged in th is activity plus the amount
9281the Commission would assess for both types of violation of the
9292statute would be sufficient penalty.
9297RECOMMENDATION
9298Based upon the foregoing Findings of Fact and Conclusions
9307of Law, it is
9311RECOMMENDED that:
93131. Count 1 be di smissed regarding the Respondent's
9322directing employees to work on the re - election campaign;
93322. Count 3 be dismissed regarding the Respondent's
9340directing an employee to take her personal automobile in for
9350repairs;
93513. Count 4 be dismissed regarding the Re spondent's
9360directing an employee to make bank deposits for her and her
9371mother;
93724. A civil penalty of $1,500 be imposed because the
9383Respondent violated Section 112.313(6) by having personal
9390letters typed by public employees during public working hours;
9399an d
94015. Restitution in the amount of $2,000, and a civil
9412penalty of $2,000 be imposed because the Respondent violated
9422Section 112.313(6) by having school materials prepared by public
9431employees during public work hours.
9436DONE AND ENTERED this 30th day of Oct ober, 2003, in
9447Tallahassee, Leon County, Florida.
9451S
9452___________________________________
9453STEPHEN F. DEAN
9456Administrative Law Judge
9459Division of Administrative Hearings
9463The DeSoto Building
94661230 Apalachee Parkway
9469Tallahassee, Flori da 32399 - 3060
9475(850) 488 - 9675 SUNCOM 278 - 9675
9483Fax Filing (850) 921 - 6847
9489www.doah.state.fl.us
9490Filed with the Clerk of the
9496Division of Administrative Hearings
9500this 30th day of October, 2003.
9506ENDNOTES
95071/ Advoca tes Exhibit 6 SHOP was received as Holts Exhibit 6
9519Shopanscript of Final Hearing, p. 667.
95252/ Of those, Advocates Exhibits 7 CULBREAT.OAK, SAM.DOR and
9534TPD.LET were received as Holt Exhibits 7 as opposed to
9544Advocates Exhibits 7, with the same desig nations. See
9553Transcript of Final Hearing, pp. 670, 685, 690.
95613/ Advocates Exhibit 8I was received as Holts 8Ianscript
9570of Final Hearing, p. 690.
95754/ During the final hearing, the full transcript of Respondents
9585Sworn Statement given to the Ethi cs Investigator was substituted
9595for the partial transcript originally offered as part of
9604Advocates Exhibit 12. The full transcript was admitted into
9613evidence as a substitute for Advocates Exhibit 12. See
9622Transcript of Final Hearing, p. 1143.
96285/ Ad vocates Exhibit 17 is a composite of phone messages from
9640Joseph Moore regarding bank depositsanscript of Final
9647Hearing, pp.1096, 1000 [identified and received]. Advocates
9654Exhibit 19 is a composite of arrangement, by date, of the file
9666lists on Sharon Slater Disks #s 1, 2 & 3. See Transcript of
9679Final Hearing, pp. 1947, 1964 [identified and received].
96876/ The testimony of Judge Gross was taken by deposition on
9698July 31, 2003.
97017/ The FDLE investigated and determined there were not crimes
9711committed .
97138/ Melissa Moore Dearings last name was Moore prior to her
9724marriage. Ms. Dearing is the daughter of Joseph Moore, one of
9735those who filed a complaint with the Ethics Commission against
9745Respond ent. (T - 250; R - 49)
97539/ The course that she taught in the Spring of 1995 occurred
9765prior to the reach of the statute of limitations and has not
9777been considered in this case.
978210/ Dearing and others proctored examinations and taught courses
9791for the Respondent during this period. Dearing clearly
9799volunteered to do this as did the other personnel, who were
9810mostly professional staff. This was not a violation the law
9820because it was not done on public time and was voluntary.
983111/ The Respondent was compensated between $1,000 and $2,500 per
9843course for teaching thes e courses. The Respondent taught three
9853different classes during the years 1998 and 1999, and two
9863different courses in 2000. She made approximately $6,600 from
9873teaching in 1998 and 1999, and $4,100 for teaching in 2000.
9885COPIES FURNISHED :
9888Gregory W. Keh oe, Esquire
9893James, Hoyer, Newcomer & Smiljanich, P.A.
9899Post Office Box 1259
9903St. Petersburg, Florida 33731
9907James H. Peterson, III, Esquire
9912Office of the Attorney General
9917The Capitol, Plaza Level 01
9922Tallahassee, Florida 32399 - 1050
9927Kaye Starling, Agency Cl erk
9932Commission on Ethics
99352822 Remington Green Circle, Suite 101
9941Post Office Box 15709
9945Tallahassee, Florida 32317 - 5709
9950Philip C. Claypool, General Counsel
9955Commission on Ethics
99582822 Remingt on Green Circle, Suite 101
9965Post Office Box 15709
9969Tallahassee, Florida 32317 - 5709
9974Bonnie J. Williams, Executive Director
9979Commission on Ethics
99822822 Remington Green Circle, Suite 101
9988Post Office Box 15709
9992Tallahassee, Florida 32317 - 5709
9997NOTICE OF RIGHT TO SUBMIT EXCEPTIONS
10003All parties have the right to submit written exceptions within
1001315 days from the date of this recommended order. Any exceptions to
10025this recommended order should be filed with the agency that will
10036issue the final order in this case.
![](/images/view_pdf.png)
- Date
- Proceedings
-
PDF:
- Date: 11/24/2003
- Proceedings: Response to Advocate`s Exceptions to Recommended Order filed by Respondent.
-
PDF:
- Date: 10/30/2003
- Proceedings: Recommended Order (hearing held May 27 through June 13, 2003). CASE CLOSED.
-
PDF:
- Date: 10/30/2003
- Proceedings: Recommended Order cover letter identifying the hearing record referred to the Agency.
-
PDF:
- Date: 10/15/2003
- Proceedings: Notice of Filing Amended References to Exhibit A-12 (filed by Advocate via facsimile).
- Date: 10/13/2003
- Proceedings: Transcript (Sworn Statement of Julianne Holt) filed.
-
PDF:
- Date: 10/13/2003
- Proceedings: Notice of Filing, Transcript of Julianne Holt`s Sworn Statement filed.
-
PDF:
- Date: 08/26/2003
- Proceedings: Deposition (of Honorable Raymond O. Gross, Circuit Court Judge) filed.
-
PDF:
- Date: 08/26/2003
- Proceedings: Respondent`s Notice of Filing Deposition of Honorable Raymond O. Gross, Circuit Court Judge filed.
-
PDF:
- Date: 08/12/2003
- Proceedings: Letter to Judge Dean from D. Einsmann enclosing the original notebook of Ms. Holt`s exhibits filed.
- Date: 08/11/2003
- Proceedings: Condensed Transcript of Proceedings (Volumes IA, IB, II-A, II-B, III-A, III-B, IV-A, IV-B, V, VI-A, VI-B, V-II, V-III, IX, X, XI-A, XI-B, XII) filed.
- Date: 08/11/2003
- Proceedings: Transcript of Proceedings (Volumes I-A, I-B, II-A, II-B, III-A, III-B, IV-A, IV-B, V, VI-A, VI-B, VII, VIII, IX, X, XI-A, XI-B, XII filed.
-
PDF:
- Date: 07/11/2003
- Proceedings: Letter to Judge Dean from J. Peterson enclosing 1 box of Advocate`s exhibits filed.
- Date: 06/10/2003
- Proceedings: CASE STATUS: Hearing Held; see case file for applicable time frames.
- Date: 06/02/2003
- Proceedings: CASE STATUS: Hearing Partially Held; continued to
- Date: 05/27/2003
- Proceedings: CASE STATUS: Hearing Partially Held; continued to
-
PDF:
- Date: 05/23/2003
- Proceedings: Advocate`s Request to Take Judicial Notice (filed via facsimile).
-
PDF:
- Date: 05/22/2003
- Proceedings: Motion for Exemption from Rule of Sequestration (filed by J. Peterson via facsimile).
-
PDF:
- Date: 05/22/2003
- Proceedings: Subpoena ad Testificandum (2), R. Gross, G. Greer filed via facsimile.
-
PDF:
- Date: 05/22/2003
- Proceedings: Emergency Motion to Quash Subpoena or for a Protective Order and Memorandum of Law in Support Thereof (filed by B. New via facsimile).
-
PDF:
- Date: 04/14/2003
- Proceedings: Notice of Taking Deposition Duces Tecum J. Holt (filed via facsimile).
-
PDF:
- Date: 04/08/2003
- Proceedings: Advocate`s Response to Respondent`s Request for Production of Documents to the Advocate filed.
-
PDF:
- Date: 04/08/2003
- Proceedings: Certificate of Service of Advocate`s Answers to Interrogatories to Advocate filed by J. Peterson.
-
PDF:
- Date: 04/01/2003
- Proceedings: Notice of Taking Deposition Duces Tecum, J. Holt (filed by J. Peterson, III via facsimile).
-
PDF:
- Date: 03/05/2003
- Proceedings: Order Granting Continuance and Re-scheduling Hearing issued (hearing set for May 27 through 30, 2003; 9:00 a.m.; Tampa, FL).
-
PDF:
- Date: 03/03/2003
- Proceedings: Respondent`s Unopposed Motion to Continue Administrative Hearing filed.
-
PDF:
- Date: 02/05/2003
- Proceedings: Notice of Service of Advocate`s First Interrogatories to Respondent filed.
-
PDF:
- Date: 01/31/2003
- Proceedings: Notice of Hearing issued (hearing set for April 14 through 18, 2003; 9:00 a.m.; Tampa, FL).
-
PDF:
- Date: 01/30/2003
- Proceedings: Order of Consolidation issued. (consolidated cases are: 03-000122EC, 03-000199EC, 03-000200EC)
Case Information
- Judge:
- STEPHEN F. DEAN
- Date Filed:
- 01/13/2003
- Date Assignment:
- 06/11/2003
- Last Docket Entry:
- 01/28/2004
- Location:
- Tampa, Florida
- District:
- Middle
- Agency:
- ADOPTED IN PART OR MODIFIED
- Suffix:
- EC
Counsels
-
Gregory W Kehoe, Esquire
Address of Record -
James H Peterson, III, Esquire
Address of Record