05-001607EC In Re: Lisa Marie Phillips vs. * Status: Closed Recommended Order on Wednesday, February 1, 2006.

Summary: Respondent misused her position as a member of the Bradenton Beach City Commission to threaten and/or intimidate Complainant during a verbal altercation arising out of a traffice incident in violation of Section 112.313(6), Florida Statutes.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

IN RE: LISA MARIE PHILLIPS, )

)

Respondent. ) Case No. 05 - 1607EC

)

RECOMMENDED ORDER

A formal hearing was conducted in this case on October 28,

2005, b y Carolyn S. Holifield, a duly - designated Administrative

Law Judge of the Division of Administrative Hearings, in

Bradenton, Florida.

APPEARANCES

For Advocate: James H. Peterson, III, Esquire

Office of the Attorney General

The Capitol, Pl aza Level 01

Tallahassee, Florida 32399 - 1050

For Respondent: Matthew P. Farmer, Esquire

Farmer & Fitzgerald, P.A.

708 East Jackson Street

Tampa, Florida 33602

STATEMENT OF THE ISSUES

The issues for determination are whether Respondent, as a

member of the Bradenton Beach City Commission, violated

Subsection 112.313(6), Florida Statutes (2004), by using her

position to threaten and/or intimidate the Complainant, and, if

so, what penalty should be recommended.

PRELIMINARY STAT EMENT

On June 8, 2004, the Florida Commission on Ethics

(Commission on Ethics) issued an Order finding probable cause to

believe that Respondent, Lisa Marie Phillips, as a member of the

Bradenton Beach City Commission, violated Subsection 112.313(6),

Flo rida Statutes (2004), by using her position to threaten

and/or intimidate Ronald Ockerman, the Complainant. The case

was forwarded to the Division of Administrative Hearings on

May 4, 2005.

Prior to the final hearing, the parties submitted a Joint

Pre - he aring Stipulation, which included two stipulated facts.

These stipulated facts required no proof at hearing.

At the final hearing, the Advocate called five witnesses:

Shelly Hodges, Ronald Ockerman, Nancy Ockerman, Gloria Morotti,

and Respondent. The A dvocate offered and had six exhibits

received into evidence. Respondent testified on her own behalf,

but did not submit any exhibits.

At the conclusion of the hearing, upon agreement of the

Advocate and Respondent, the due date for filing proposed

recomm ended orders was December 15, 2005. Prior to that date,

Respondent filed an unopposed Motion to Extend the Time for

filing Proposed Recommended Orders. The motion was granted, and

the time for filing proposed recommended orders was extended to

December 2 3, 2005. No transcript of the hearing was filed.

FINDINGS OF FACT

1. Respondent, Lisa Marie Phillips (Respondent), has

continuously served as a member of the Bradenton Beach City

Commission since her election in November 2003.

2. Shortly after her el ection, Respondent signed an Oath

of Office for her position as a city commissioner and received a

number of training materials regarding standards of conduct for

public officials, including the Commission on Ethics' Code of

Ethics for Public Officers and Employees.

3. Respondent also reviewed a training videotape that

addressed potential liability for certain acts as a city

commissioner. While the videotape did not specifically discuss

the Code of Ethics, it warned that aggressive behavior by a city

com missioner could result in civil liability.

4. Respondent is subject to the requirements of Part III,

Chapter 112, Florida Statutes (2004), the Code of Ethics for

Public Officers and Employees, for her acts and omissions during

her tenure as a member of t he Bradenton Beach City Commission.

5. On Saturday, January 3, 2004, at approximately

11:30 a.m., Ronald Ockerman and his wife, Nancy Ockerman, were

in Bradenton Beach, Florida, in their red pick - up truck.

Mr. Ockerman was driving, headed east on 22nd S treet North.

Just before the intersection of 22nd Street North and Avenue B,

Mr. Ockerman either stopped or slowed his vehicle to check for

cross traffic. Although there was no stop sign or traffic light

at the intersection, Mr. Ockerman slowed down or s topped at the

intersection because the view down Avenue B was partially

obscured by foliage and because he was concerned about some

young drivers in the neighborhood.

6. Respondent and her 16 - year - old daughter were behind the

Ockermans in Respondent's ve hicle, a Saturn View. Respondent

was driving the vehicle and her daughter was a passenger. They

were returning home to prepare to attend a funeral of

Respondent's close friend. When Mr. Ockerman slowed down or

stopped at the intersection, Respondent bec ame impatient and

blew her horn.

7. Mr. Ockerman responded by directing an obscene hand

gesture, colloquially known as "shooting the bird," at

Respondent. Mr. Ockerman then slowly drove his truck east

through the intersection toward an alley on the righ t that ran

behind the Ockerman's home just down the street.

8. Respondent drove her car through the intersection past

the Ockermans and pulled around at an angle on the road in front

of their truck, thereby requiring Mr. Ockerman to stop prior to

the all ey.

9. Respondent then exited her vehicle and walked toward

Mr. Ockerman's truck. Mr. Ockerman also exited his vehicle.

When Respondent reached the area close to where Mr. Ockerman

was, she waived her middle finger at Mr. Ockerman, imitating the

obscen e gesture he had directed at her, and asked him, "What's

this, what's this?" Respondent also commented that "this is

road rage," and asked why Mr. Ockerman had stopped at the

intersection.

10. At some point during the confrontation, Mr. Ockerman

advised Respondent that he was going to call the police.

Respondent responded by challenging Mr. Ockerman to "go ahead

and call the police." Respondent then told Mr. Ockerman that

she was a city commissioner, that she "owned" or controlled the

police, and that t he police worked for her. Respondent also

told Mr. Ockerman to follow her because she was going to give

him a ticket.

11. Several neighbors saw the confrontation. One of the

neighbors, Gloria Morotti, was out watering her plants on her

upstairs patio on the southeast corner of 22nd Street North and

Avenue B when she first heard the confrontation. Ms. Morotti

went down to the scene and attempted to calm the situation.

Ms. Morotti told Respondent, "You have road rage. Road rage

will kill you." Ms. Moro tti noticed that her words had little

effect at the time.

12. Two other neighbors, Shelly Hodges and her husband,

who lived on the northeast corner of the same intersection, also

witnessed the confrontation between Respondent and Mr. Ockerman.

Ms. Hodges heard Respondent say to Mr. Ockerman that she "owned"

the police. Ms. Hodges also heard Respondent tell Mr. Ockerman

to follow her so that she could give him a ticket.

13. Although Respondent told Mr. Ockerman to follow her to

the police station so she could give him a ticket, she made no

statements and took no actions that compelled Mr. Ockerman to

follow her to the police station. In fact, Mr. Ockerman did not

follow Respondent as she requested.

14. While Mr. Ockerman did not follow Respondent as she

had requested, based on Respondent's assertions that she was a

city commissioner and "owned" the police, Mr. Ockerman decided

not to call the police.

15. The confrontation ended when Respondent returned to

her car. Mr. Ockerman drove down the alley behi nd his home to

unload a shower door that he had in the back of his truck.

Respondent drove east down 22nd Street North a short way, turned

around, and then proceeded to turn right on Avenue B to her

residence.

16. Later that day, Respondent attended the funeral of a

close friend. On her way home from the funeral, Respondent

decided to apologize to Mr. Ockerman for her behavior and role

in the verbal altercation. She stopped by the Ockerman' house

that day and apologized to Mr. Ockerman and extended her hand to

Mr. Ockerman. Although Mr. Ockerman took Respondent's hand, he

warned her that he was still going to see an attorney about the

incident on Monday.

17. Mr. Ockerman felt that his rights had been interfered

with and that Respondent had purposely in timidated him by using

her position. As noted in paragraph 14, based on what

Respondent had told him, he felt that it would do no good to

call the Bradenton Beach Police, and he never did.

18. Some time after the verbal altercation between

Respondent and Mr. Ockerman and after he talked to his attorney,

Mr. Ockerman reported the incident to the Manatee County

Sheriff's Office. Specifically, Mr. Ockerman reported that

Respondent had "assaulted" him. The Sheriff's Office

investigated the incident and conc luded that no assault

occurred. Thus, the Sheriff's Office did not file charges

against Respondent. Thereafter, in addition to filing a

complaint with the Commission on Ethics, Mr. Ockerman filed a

civil lawsuit against Respondent, which was still pendin g at the

time of the final hearing in this case.

19. Undoubtedly, Respondent was upset and angry when

Mr. Ockerman "shot a bird" at her and threatened to call the

police. According to Respondent, the obscene gesture directed

to her by Mr. Ockerman made h er "feel violated."

20. Notwithstanding her personal feelings about the

conduct and statement of Mr. Ockerman described in paragraph 19,

Respondent knew that it was wrong for her to use her position as

a city commissioner for her personal benefit. First, Respondent

admitted at the final hearing that she invoked her position as a

city commissioner to "one - up" Mr. Ockerman during the

confrontation. Second, Respondent regretted her conduct, as

evidenced by her apology to Mr. Ockerman the day of the

confront ation and verbal exchange. Third, as noted in

paragraph 2, Respondent received training and materials

regarding the standards of conduct for public officials,

including the Code of Ethics for Public Officers and Employees.

21. In sum, the evidence clearl y and convincingly showed

that Respondent violated Subsection 112.313(6), Florida Statutes

(2004), by misusing her position as a member of the Bradenton

Beach City Commission to threaten and/or intimidate

Mr. Ockerman.

CONCLUSIONS OF LAW

22. The Division of Administrative Hearings has

jurisdiction over the parties to and the subject matter of this

proceeding. §§ 120.569 and 120.57(1), Fla. Stat. (2004).

23. Section 112.322, Florida Statutes (2004), and Florida

Administrative Code Rule 34 - 5.0015 authoriz e the Commission on

Ethics to conduct investigations and to make public reports on

complaints concerning violations of Part III, Chapter 112,

Florida Statutes (2004).

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

the contrary, is on the party a sserting the affirmative of the

issue of the proceedings. Department of Transportation v.

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

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

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

on Ethics, through its Advocate, that is asserting the

affirmative, that Respondent violated Subsection 112.313(6),

Florida Statutes (2004). Here, where the Commission on Ethics

seeks to impose penalties against a public officer , it must

prove the alleged violation(s) by clear and convincing evidence.

See Latham v. Florida Commission on Ethics , 694 So. 2d 83 (Fla.

1st DCA 1997).

25. As noted by the Supreme Court:

[C]lear and convincing evidence requires

that the evidence must be found to be

credible; the facts to which the witnesses

testify must be distinctly remembered; the

testimony must be precise and explicit and

the witnesses must be lacking in confusion

as to the facts in issue. The evidence must

be of such weight that it produces in the

mind of the trier of fact a firm belief or

conviction, without hesitancy, as to the

truth of the allegations sought to be

established.

In Re Davey , 645 So. 2d 398, 404 (Fla. 1994), quoting Slomowitz

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

Court of Florida also explained, however, that although the

"clear and convincing" standard requires more than a

"preponderance of the evidence," it does not require proof

"beyond and to the exclusion of a reasonable doubt." Id .

26. Subsection 112.313(6), Florida Statutes (2004),

provides:

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 reso urce 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.

27. The term "corrupt ly" is defined by Subsection

112.312(9), Florida Statutes (2004), as follows:

"Corruptly" means done with a wrongful

intent and for the purpose of obtaining, or

compensating or receiving compensation for,

any benefit resulting from some act or

omission of a public servant which is

inconsistent with the proper performance of

his or her public duties.

28. In order for it to be concluded that Respondent

violated Subsection 112.313(6), Florida Statutes (2004), the

Advocate must establish the following element s:

1. Respondent must have been a public

officer or employee.

2. Respondent must have:

a) used or attempted to use his or

her official position or any

property or resources within his

or her trust, or

b) performed his or her official

duties.

3. R espondent's actions must have been

taken to secure a special privilege,

benefit or exemption for himself or

herself or others.

4. Respondent must have acted corruptly,

that is, with wrongful intent and for the

purpose of benefiting himself or herself

or another person from some act or

omission which was inconsistent with the

proper performance of his or her public

duties.

29. The parties have stipulated that Respondent, as a

member of the Bradenton Beach City Commission, is subject to the

requirements o f Part III, Chapter 112, Florida Statutes (2004).

Therefore, the first element required to show a violation of

Subsection 112.313(6), Florida Statutes (2004), has been

established.

30. It must also be shown that Respondent used or

attempted to use her pu blic position. In order to prove this

element, all that is required is an attempt to use one's public

position to secure a special privilege, benefit, or exemption.

Respondent admits that she advised Mr. Ockerman of her public

position during their priv ate confrontation. It was also

clearly demonstrated that, during the confrontation, Respondent

told Mr. Ockerman that she "owned" or controlled the police. As

noted by the Commission on Ethics, "the mere invocation of one's

status as a public official ma y constitute a use of office."

See Final Order and Public Report in In Re: Tom Ramiccio , 23

F.A.L.R. 895, 902 (Florida Commission on Ethics 2000), aff'd per

curiam , 792 So. 2d 471 (Fla. 4th DCA 2001). Here, the evidence

clearly established that Responden t used or attempted to use her

position.

31. The evidence also clearly demonstrated that Respondent

used her office to secure a special privilege, benefit, or

exemption for herself. While only an attempt need be shown, the

evidence clearly revealed tha t Respondent's statements to

Mr. Ockerman were intimidating and dissuaded from him contacting

the Bradenton Beach Police Department. The context of

Respondent's statements that she was a city commissioner and

that she owned or controlled the police eviden ced her intent to

intimidate Mr. Ockerman with the power of her position during a

private dispute. Respondent's admission that she invoked her

public position to "one up" Mr. Ockerman further supports this

conclusion.

32. Finally, given the timing and co ntext of Respondent's

statements to Mr. Ockerman during the confrontation, there can

be no doubt that Respondent acted with the requisite corrupt

intent as defined in Subsection 112.312(9), Florida Statutes

(2004), quoted above. 1/ As in In re: Jimmy Whale y , 20 F.A.L.R.

2267 (Florida Commission on Ethics 1997), where a city

commissioner's "choice of words and tone of voice" evidenced his

intent to misuse his official position, Respondent's choice of

words and tone of voice, while invoking the power of her p ublic

position to intimidate Mr. Ockerman during their confrontation,

demonstrated Respondent's corrupt intent.

33. Although Respondent was angry during the

confrontation, the evidence showed that she acted in a

deliberative manner with the requisite corr upt intent. As noted

by the Commission on Ethics in its Final Order and Public Report

in In re: Fred Peel , 15 F.A.L.R. 1187 (Florida Commission on

Ethics 1992):

It is possible for the corrupt intent

required by the statute to be formed

instantaneously, an d a premeditated plan for

securing a special benefit is not required

by the statute. Even a reflexive reaction

may rise to the level of corrupt intent,

depending on the circumstances. Id.

34. Furthermore, the evidence clearly and convincingly

demonstra ted that Respondent knew at the time she made her

intimidating statements that they were inappropriate and

inconsistent with the proper performance of her public duties.

In Ramiccio , the court found that the context in which a remark

was made indicated in tention to threaten in a manner that was

inconsistent with the respondent’s performance of his public

duties.

35. In sum, the clear and convincing evidence presented at

the final hearing established each of the requisite elements to

prove that Respondent violated Subsection 112.313(6), Florida

Statutes (2004), by using her position to threaten and/or

intimidate Mr. Ockerman.

RECOMMENDATION

Based on the foregoing Findings of Facts and Conclusions of

Law, it is

RECOMMENDED that a final order and public re port be entered

finding that Respondent, Lisa Marie Phillips, violated

Subsection 112.313(6), Florida Statutes (2004), and recommending

that a civil penalty of $2,000 be imposed.

DONE AND ENTERED this 1st day of February, 2006, in

Tallahassee, Leon County, Florida.

S

CAROLYN S. HOLIFIELD

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675 SUNCOM 278 - 9675

Fax Filing (850) 9 21 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 1st day of February, 2006.

ENDNOTE

1/ In its discussion of the "misuse of office" statute, the

Commission on Ethics in CEO 91 - 38 opined that even

identi fication of oneself as a city council member in

correspondence may be inappropriate, depending on the context.

Specifically, the Commission on Ethics concluded that it would

be inappropriate for a public official to identify himself as a

council member in a letter "being sent to settle a strictly

private dispute with a debtor or creditor." CEO 91 - 38, p. 2.

COPIES FURNISHED :

Kaye Starling, Agency Clerk

Florida Commission on Ethics

Post Office Drawer 15709

Tallahassee, Florida 32317 - 5709

Matthew P. Far mer, Esquire

Farmer & Fitzgerald, P.A.

708 East Jackson Street

Tampa, Florida 33602

James H. Peterson, III, Esquire

Office of the Attorney General

The Capitol, Plaza Level 01

Tallahassee, Florida 32399 - 1050

Philip C. Claypool, General Counsel

Florida C ommission on Ethics

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 Re commended Order should be filed with the agency that

will issue the final order in this case.