05-004333EC In Re: Danny Howell vs. * Status: Closed Recommended Order on Friday, September 7, 2007.

Summary: Respondent did not require or pressure city manager to maker various payments on his behalf or to purchase computer for Respondent`s son. Thus Respondent did not violate 112.313(21), (4), and (6).

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

IN RE: DANNY HOWELL, ) )

) Case No. 05-4333EC

Respondent. )

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative

Hearings, by its duly-designated Administrative Law Judge,

Carolyn S. Holifield, held a formal hearing in this case on

August 25 and October 10, 2006, by video teleconference at sites

in Orlando and Tallahassee, Florida.

APPEARANCES

For Advocate: Linzie F. Bogan, Esquire

Advocate for the Florida

Commission on Ethics

Office of the Attorney General

The Capitol, Plaza Level 01

Tallahassee, Florida 32399-1050

For Respondent: C. Randall Freeman, Esquire

Freeman Legal Associates, P.A.

151 West Silver Star Road

Post Office Box 339

Ocoee, Florida 34761

STATEMENT OF THE ISSUE

The issues for determination are whether Respondent

violated Subsections 112.313(2), 112.313(4) and 112.313(6),

Florida Statutes (2004), 1/ as alleged, and, if so, what penalty

should be imposed.

PRELIMINARY STATEMENT

On April 26, 2005, the Florida Commission on Ethics issued

an Order Finding Probable Cause to believe that Respondent,

Danny Howell (Respondent), while serving as a member of the

Ocoee City Commission, violated Subsections 112.313(2),

112.313(4) and 112.313(6), Florida Statutes. The Order Finding

Probable Cause alleged that the following acts constitute the

foregoing violations: (1) Respondent required former Ocoee City

Manager James Gleason to pay a $150.00 fine that Respondent owed

due to Respondent's failure to timely file his Campaign

Treasurer's Report; (2) Respondent required Mr. Gleason to pay

$354.18 for personal charges made by Respondent on his city-

issued credit card; (3) Respondent required Mr. Gleason to

purchase a computer for Respondent's son; and (4) Respondent

required Mr. Gleason to take the steps necessary to restore

water service to Respondent's home and waive all fees and costs

associated with the termination of Respondent's service.

The case was forwarded to the Division of Administrative

Hearings on or about November 23, 2005. Pursuant to notice

issued December 7, 2005, the case was set for final hearing

commencing on January 20, 2006. Prior to the scheduled hearing

date, the Advocate filed a motion for continuance. The motion

was granted, and the matter was rescheduled for February 3,

2006. On February 1, 2006, C. Randall Freeman, Esquire, entered

an appearance on behalf of Respondent and also filed a motion

for continuance. Respondent's motion for continuance was

granted, and the final hearing was rescheduled for May 12, 2006.

Subsequently, Respondent's counsel requested and was granted two

additional continuances before the final hearing was conducted

as noted above.

Prior to the hearing, the parties submitted a Joint

Pre-Hearing Stipulation in which they stipulated to facts which

required no proof.

At the final hearing, the Advocate called three witnesses:

James Gleason, Wanda Horton, and Gequitha Cowan. The Advocate's

Exhibits 1 through 10 and 12 through 17 were received into

evidence. The Advocate's exhibits included the deposition

testimony of Respondent and Richard Waldrop. Respondent

testified on his own behalf and called four witnesses: Vicki

Prettyman, Richard Waldrop, Sandra Howell, and James Gleason.

Respondent's Exhibits A through E and G through U were received

into evidence.

A Transcript of the proceeding was filed on November 21,

2006. At the conclusion of the hearing, by agreement and

request of the parties, proposed recommended orders were to be

filed 30 days after the Transcript was filed. The parties

subsequently requested and were granted two extensions of time

in which to file their proposed recommended orders. Under the

extended time frame, the parties were to file proposed

recommended orders no later January 24, 2007. The Advocate's

Proposed Recommended Order was timely filed. Respondent filed

his Proposed Findings of Fact and Conclusions of Law and

Memorandum of Law on January 29, 2007. The post-hearing

submittals of both parties have been considered in preparation

of this Recommended Order.

FINDINGS OF FACT

1. At all times relevant to this proceeding, Danny Howell

was a duly-elected commissioner for the City of Ocoee, Florida

(hereinafter "City" or "City of Ocoee"). As a commissioner for

the City of Ocoee, Respondent was subject to the requirements of

Chapter 112, Part III, Florida Statutes, the Code of Ethics for

Public Officers and Employees.

2. At all times relevant to this proceeding, James Gleason

was city manager for the City of Ocoee. Mr. Gleason was

appointed city manager by the Ocoee City Commission in

January 2001 and served in that position until March 2004.

3. When Mr. Gleason was initially appointed as city

manager, Respondent did not vote in favor of Mr. Gleason.

4. During his tenure as city manager, Mr. Gleason was

supervised by the Ocoee City Commission, which was comprised of

five elected commissioners. As a commissioner, Respondent was

one of Mr. Gleason's immediate supervisors.

5. Several years prior to Mr. Gleason's appointment as

city manager, he had been a commissioner for the City of Ocoee

and a candidate for mayor. As a result of Mr. Gleason's

political involvement in the City, Respondent knew Mr. Gleason

before he was appointed city manager.

6. When hired, Mr. Gleason's annual base salary was

approximately $87,000.00. Mr. Gleason's annual base salary at

the time of his termination from the position of Ocoee city

manager was $103,000.00.

7. As a City commissioner, Respondent was paid a monthly

salary of $400.00 per month to serve on the City Commission. In

addition to his $400.00 monthly salary, Respondent received a

monthly stipend of $275.00 for local travel.

Fine for Late-Filed Campaign Treasurer's Report

8. At all times relevant to this proceeding, Jean Grafton

served as the Ocoee city clerk and as the City's supervisor of

elections.

9. By letter dated April 12, 2001, Ms. Grafton advised

Respondent that a $150.00 fine had been assessed against him due

to his Campaign Treasurer's Report not being timely filed. The

same or a similar letter was also sent to Vickie Prettyman,

Respondent's campaign treasurer.

10. Despite Respondent's having been notified of the

$150.00 fine in April 2001, a year later the fine had not been

paid.

11. After the $150.00 fine remained outstanding for more

than a year, Ms. Grafton requested Mr. Gleason's assistance in

getting Respondent to pay the fine. Ms. Grafton told

Mr. Gleason that if Respondent did not pay the $150.00 fine, she

would have to notify the Florida Elections Commission that

Respondent had failed to pay the fine.

12. Upon learning that the $150.00 fine had not been paid,

Mr. Gleason discussed the matter with Respondent. Respondent

advised Mr. Gleason that Ms. Prettyman was to pay the fine. In

making this statement, Respondent was reasonably relying on

Ms. Prettyman's representation to him that she would pay the

$150.00 fine.

13. As Respondent's campaign treasurer in 2001,

Ms. Prettyman took responsibility for late-filing Respondent's

Campaign Treasurer's Report in April of that year. Thus,

Ms. Prettyman assumed she should pay the fine.

14. The $150.00 fine for the late filing of Respondent's

Campaign Treasurer's Report was paid on May 17, 2002.

15. There is no dispute that Mr. Gleason delivered $150.00

in cash to the City Clerk's Office and paid the fine that had

been assessed against Respondent. However, there was

conflicting testimony between Ms. Prettyman and Mr. Gleason as

to who provided the funds for the payment of the $150.00 fine

and under what circumstances the fine was paid.

16. On May 17, 2002, Ms. Prettyman met with Mr. Gleason at

the City's Beach Recreation Center, where Ms. Prettyman worked

as interim recreation director for the City. The meeting was

about an upcoming work-related project. After the meeting

ended, Mr. Gleason reminded Ms. Prettyman that the $150.00 fine

was still outstanding. 2/ Ms. Prettyman then told Mr. Gleason she

got paid that day 3/ and would pay the fine after she cashed her

paycheck during her lunch hour. Although it was lunch time,

Ms. Prettyman told Mr. Gleason that she could not leave the

recreation center until the other employee assigned to the

center returned from lunch so that the center could remain

open. 4/

17. On May 17, 2002, Mr. Gleason volunteered to stay at

the Beach Recreation Center, so it could remain open while

Ms. Prettyman went to the bank to cash her paycheck.

18. When Ms. Prettyman returned to the recreation center,

she told Mr. Gleason that she would go to City Hall to pay the

fine later that afternoon. In response, Mr. Gleason offered to

take the money to City Hall and make the payment for

Ms. Prettyman since he was going there after he left the

recreation center.

19. Ms. Prettyman accepted Mr. Gleason's offer to deliver

the $150.00 to City Hall and pay the fine for her.

Ms. Prettyman then gave Mr. Gleason $150.00 in cash to pay the

outstanding fine.

20. Mr. Gleason never gave Ms. Prettyman a receipt for the

payment. However, a few days after Ms. Prettyman gave the

$150.00 to Mr. Gleason, she checked with Ms. Grafton to

determine if the fine had been paid. In response, Ms. Grafton

acknowledged that the payment had been received.

21. Mr. Gleason contradicts the foregoing account

regarding payment of the $150.00 fine, as described and

testified to by Ms. Prettyman. Specifically, Mr. Gleason denied

that Ms. Prettyman gave him the $150.00 in cash to pay the fine

and testified that he paid the fine out of his personal funds.

According to Mr. Gleason, he paid the fine after being directed

to do so by Respondent.

22. Mr. Gleason testified that after Ms. Grafton asked him

to assist her in getting Respondent to pay the fine, he

discussed the matter with Respondent on two or three occasions.

Mr. Gleason testified that on one of these occasions, Respondent

told him (Gleason) that he made more money than Respondent so he

(Gleason) should pay the fine and make it go away.

23. Based on the foregoing comments that Respondent

allegedly made, Mr. Gleason testified that he believed

Respondent wanted, expected, or was directing him (Gleason) to

pay Respondent's $150.00 fine. Furthermore, Mr. Gleason

testified that he believed and/or feared that his job as city

manager might or could be adversely affected if he did not pay

the fine.

24. Contrary to Mr. Gleason's testimony, the credible

testimony of Respondent is that he never directed or in any way

coerced, threatened, or pressured Mr. Gleason to pay the $150.00

fine.

25. Ms. Prettyman's testimony regarding payment of the

$150.00 fine and the circumstances surrounding the payment is

found to be more credible than that of Mr. Gleason.

Waiver of Fees Related to Late Payment of Water Bill

26. During the time Mr. Gleason served as city manager,

Respondent and his wife were sometimes late in paying for their

residential water service.

27. In March 2003, the City of Ocoee determined that

Respondent's residential water service would be terminated due

to non-payment of the balance owed on the account.

28. On or about March 20, 2003, Cathy Sills, who worked in

the City's Utilities Service Department (hereinafter referred to

as "Utilities Department"), contacted Mr. Gleason and informed

him that Respondent was on the City's water service cut-off

list. Mr. Gleason then contacted Respondent and informed him

that his water service was going to be turned off that day if

his bill was not paid.

29. After being notified that his water service was

scheduled to be cut-off, Respondent told Mr. Gleason that either

he (Respondent) or his wife would go to the Utilities Department

that day to pay the past due balance. Respondent also told

Mr. Gleason that he would not be able to pay the late charges

and any other related fees.

30. On March 20, 2003, after Mr. Gleason telephoned

Respondent about his (Respondent's) delinquent water bill,

Respondent went to the Utilities Department and paid his water

bill. Some time after Respondent spoke to Mr. Gleason, but

before he arrived at City Hall to pay his water bill, the water

service had been turned off.

31. Due to Respondent's existing financial difficulties,

Respondent needed more time to pay the late charges or other

fees related to the water bill. Nevertheless, Respondent never

asked or directed Mr. Gleason to waive the late charges or other

fees associated with his delinquent water bill. Furthermore,

Respondent never asked or directed Mr. Gleason to make sure that

Respondent's water service was not cut off to restore water

services after it was cut off.

32. Mr. Gleason testified that after he talked to

Respondent about his (Respondent's) delinquent water bill, he

called Ms. Sills at the Utilities Department and asked her what

the policy was regarding waiver of late charges. Mr. Gleason

then told Ms. Sills that if the policy allowed for such a

waiver, she should remove Respondent's late charges and the

disconnect/service interruption fee from his account. 5/

33. At all times relevant to this proceeding, the City of

Ocoee had an informal "forgiveness" policy in which late charges

and other penalties related to delinquent water bills were

waived. The purpose of the policy was to provide assistance to

individuals, who like Respondent, were having financial

difficulties. Consistent with the City's "forgiveness" policy,

Mr. Gleason had routinely directed the Utilities Department

employees to waive late fees and other fees related to

delinquent water bills of eligible citizens and to work out

payment plans for them.

34. Ms. Sills waived Respondent's late charges and the

service interruption fee associated with Respondent's water bill

after being directed to do so by Mr. Gleason. As a result of

this waiver, on March 20, 2003, two late fee charges totaling

$50.00 and one service restoration fee of $50.00 were "reversed"

or removed from Respondent's account.

35. Ms. Sills confirmed the waiver in an e-mail to

Mr. Gleason in which she wrote, "Pursuant to our conversation

and you [sic] direction, I have reversed from [Respondent's]

account" two late fees at $25.00 each and one service

restoration fee of $50.00.

36. Respondent received a call from Ms. Sills advising him

that the late fees and other fees related to his water bill had

been waived. However, she did not mention why they were waived

or at whose direction.

37. At the time Mr. Gleason directed Ms. Sills to waive

Respondent's late fees, Mr. Gleason knew that Respondent was

currently experiencing financial difficulties and had been

experiencing such difficulties for some time. Based on

Respondent's financial circumstances, he was eligible for the

waiver of late fees and service interruption fees under the

City's "forgiveness" policy.

38. The City's "forgiveness" policy, which was applied in

Respondent's case and effectively waived his late charges and

service interruption fees, was also routinely used in other

financial hardship cases.

39. Respondent had been delinquent in paying his water

bill on other occasions because of the financial difficulties he

was experiencing. However, the waiver of late fees and service

interruption fees given to Respondent in March 2003, at the

direction of Mr. Gleason, was the only waiver that Respondent

ever received.

40. Not long before March 20, 2003, the City Commission

adopted a policy which increased the late charges for delinquent

water bills from $5.00 to $25.00. When the Commission was

considering the fee increase, Respondent opposed the increase.

41. Notwithstanding Respondent's opposition to the

increase in late charges for delinquent water bills, he believes

that once a policy is adopted by the Commission, it should be

applied equally to everyone. In accordance with this belief,

Respondent did not ask or direct Mr. Gleason to violate City

policy with regard to Respondent's water service, water bill, or

fees/charges related thereto.

Payment of City-Issued Credit Card on Balance

42. At all times relevant to this proceeding, City

commissioners received a monthly stipend of $275.00 to cover

travel costs and expenditures in the local area.

43. The City of Ocoee is located in Orange County,

Florida. However, the resolution that established the monthly

stipend for City commissioners defined the "local area" as

Orange, Seminole, Lake, and Osceola counties. 6/

44. In addition to receiving the monthly stipend of

$275.00 for local travel, the City issued credit cards to the

City commissioners.

45. Each month, the charges incurred by City commissioners

were reviewed by the City's Finance Department to reconcile and

ensure the legitimacy of the charges.

46. On May 9, 2002, Gequitha Cowan, executive assistant to

the mayor and commissioners of the City of Ocoee, sent an e-mail

to Respondent. In the e-mail, Ms. Cowan reminded Respondent

that he had not yet paid the City the $354.18 to cover

non-reimbursable charges that he charged on the City-issued

credit card. Ms. Cowan sent Mr. Gleason a courtesy copy of

the e-mail.

47. Of the $354.18 outstanding balance on the credit card,

$157.83 was for expenses Respondent incurred that were related

to his attending the League of Cities conference held in

Atlanta, Georgia. The remaining credit card balance of $196.35

was for local charges, primarily to restaurants made during a

seven-month period, September 1, 2001, through April 2002.

48. Respondent admitted that included in the $196.35

credit card balance is a $28.80 charge for which he should not

be reimbursed. This charge resulted from Respondent's

inadvertently using his City-issued (Visa) credit card, instead

of his personal Visa credit card when he purchased medicine at a

local store.

49. Except for the $28.80 charge, Respondent believed that

the other charges at issue were expenses for which the City

should have reimbursed him.

50. After Mr. Gleason received a copy of Ms. Cowan's

May 9, 2002, e-mail, he met with Respondent to see if any of the

charges identified in the e-mail were expenditures that could be

properly reimbursed by the City. With respect to the $157.83

expenditure, Respondent presented no documentation to support

reimbursement. As to the remaining balance (except the $28.80

Eckerd's charge), the credit card charges were for expenditures

made at establishments in the local area and were not

reimbursable by the City.

51. There is no allegation that the expenditures made by

Respondent were not legitimate expenses. However, based on the

City's policy, expenditures for official City business in the

local area should have been paid out of Respondent's monthly

stipend. Such expenditures were not reimbursed by the City,

even if the expenses were put on the City-issued credit card.

Pursuant to the City's policy, generally, the City reimbursed

City commissioners only for expenditures involving official

business outside the local area.

52. Respondent sometimes mistakenly made improper charges

when using his City-issued credit card because he did not

understand the City's policy related thereto. 7/ In fact, as of

the date of this proceeding, Respondent acknowledged that he

still does not understand the policy. Due to Respondent's

frustration with not understanding the City's policy and

resulting problems associated therewith, Respondent voluntarily

returned his City-issued credit card to the City's Finance

Department in 2002.

53. Although Respondent believed, albeit mistakenly, that

he should have been reimbursed for the subject charges on the

City-issued credit card, he never brought the issue regarding

the disputed charges before the City Commission, the final

arbiter of such disputes. Having failed to do so, Respondent

does not dispute that he was obligated to pay the City $354.18,

as determined by the City's Finance Department.

54. After Respondent received Ms. Cowan's e-mail and

talked to Mr. Gleason about the charges, he did not immediately

pay the charges. The reason Respondent did not pay the charges

in May or early June 2002, was that he was not working. As a

result of being unemployed, Respondent was experiencing

financial difficulties and did not have the money to pay the

$354.18 to the City. 8/

55. On June 3, 2002, Mr. Gleason paid the City of Ocoee

$354.18 from his personal funds to cover Respondent's

outstanding City-issued credit card debt. Mr. Gleason paid the

outstanding charges using a personal check which had the

imprinted name of Mr. Gleason and Mr. Gleason's wife. The memo

section of the check indicated that the check was for

"miscellaneous expenses" for the same time period as

Respondent's outstanding charges.

56. There is no dispute that on June 3, 2002, Mr. Gleason

paid the $354.18 to cover Respondent's outstanding credit card

charges. However, the circumstances surrounding the credit card

payment, the reason Mr. Gleason made the payment, and whether

Respondent repaid Mr. Gleason for the payment are disputed.

57. Although, due to his financial situation, Respondent

was unable to timely pay his outstanding $354.18 credit card

charges, he never asked or directed Mr. Gleason to pay those

charges. Furthermore, Respondent never coerced, threatened, or

pressured Mr. Gleason to pay the credit card charges.

58. Respondent was out-of-town on June 3, 2002, the day

Mr. Gleason paid his $354.18 credit card bill, but returned to

the City of Ocoee a day or a few days later.

59. Respondent first learned that Mr. Gleason had paid the

$354.18 outstanding credit card balance in or about early June

2002, after returning from his out-of-town trip. Mr. Gleason

approached Respondent at City Hall and told him that he

(Gleason) had taken care of the credit card bill. Mr. Gleason

then gave Respondent the receipt which showed that Mr. Gleason

had paid Respondent's outstanding $354.18 credit card bill.

60. Mr. Gleason told Respondent that he paid the credit

card bill because he was trying to help him (Respondent) out

with "Martha" and did not want Respondent to look bad.

61. Respondent was surprised to learn that Mr. Gleason had

paid the $354.18. In response to Mr. Gleason's statements to

Respondent described in paragraph 60, Respondent told

Mr. Gleason that he had no right to pay the outstanding credit

card bill and that he did not want him to pay the bill.

Respondent also told Mr. Gleason that his paying the bill would

"create a bad problem" for both of them.

62. The "Martha" referred to by Mr. Gleason during his

conversation with Respondent, discussed in paragraph 60, was

Martha Lopez Anderson, a citizen of the City of Ocoee. At the

time in question (May or early June 2002) Ms. Anderson, a very

active citizen in the community and a familiar face at City

Hall, was making public record requests regarding the travel

expenses of City commissioners.

63. The travel records requested and being reviewed by

Ms. Anderson were located in the Finance Department in City

Hall. Consequently, it was common knowledge among many City

employees at City Hall that Ms. Anderson was reviewing the City

commissioners' travel records.

64. After Mr. Gleason paid Respondent's credit card

balance, but prior to October 1, 2002, Richard Waldrop, a friend

of Respondent and long-time City employee, became aware that

Ms. Anderson was reviewing the City Commissioners' travel

records. In fact, Ms. Anderson spoke to Mr. Waldrop about the

matter and told him that Mr. Gleason had paid a bill for

Respondent and that Respondent had not repaid Mr. Gleason.

65. Mr. Waldrop does not recall the actual date that he

learned that Respondent owed Mr. Gleason money for the bill that

Mr. Gleason had paid. However, Mr. Waldrop's credible testimony

was that he is sure that it was prior to October 1, 2002.

66. After June 3, 2002, but prior to October 2002,

Respondent was approached by Mr. Waldrop, who asked him if

Mr. Gleason had paid a bill owed by Respondent. In response to

his friend's inquiry, Respondent told Mr. Waldrop that

Mr. Gleason had paid the bill, but without Respondent's prior

knowledge. Respondent also acknowledged that he had not repaid

Mr. Gleason, because he did not have the money.

67. Upon learning that Respondent had not repaid

Mr. Gleason, Mr. Waldrop was concerned that this was something

that Mr. Gleason might want to "hold over" Respondent's head.

Mr. Waldrop told Respondent that this situation "didn't look

good" and then offered to lend Respondent $420.00 so that he

could reimburse Mr. Gleason.

68. Respondent accepted Mr. Waldrop's offer to lend him

$420.00 so that he could repay Mr. Gleason.

69. In order to repay the loan to Mr. Waldrop, Respondent

and Mr. Waldrop agreed that Respondent, through his

(Respondent's) and his wife's cleaning service, would provide

house cleaning services to Mr. Waldrop and his wife two hours

every other week until the debt was repaid. These services were

provided at no charge for about a year, until the $420.00 debt

was repaid.

70. After Respondent received the $420.00 loan from

Mr. Waldrop, he reimbursed Mr. Gleason for the outstanding

credit card balance that Mr. Gleason had paid on June 3, 2002.

Although the amount Respondent owed Mr. Gleason was $354.18,

when Respondent repaid Mr. Gleason, he gave Mr. Gleason $355.00

in cash.

71. Due to the passage of time, Respondent does not recall

the exact date that he reimbursed Mr. Gleason for paying

Respondent's $354.18 outstanding credit card debt. Nonetheless,

Respondent testified credibly that he repaid Mr. Gleason weeks,

rather than months, after he learned that Mr. Gleason had paid

Respondent's credit card bill. Furthermore, Respondent

testified credibly that he is certain that he reimbursed

Mr. Gleason prior to October 1, 2002.

72. Mr. Gleason denied that Respondent repaid him the

$354.18. Also, Mr. Gleason's testimony regarding the

circumstances which resulted in his paying Respondent's

outstanding credit card debt contradicts Respondent's testimony.

73. According to Mr. Gleason, he met with Respondent in or

about May 2002, after receiving Ms. Cowan's e-mail, about his

credit card balance. Mr. Gleason testified that during that

discussion, Respondent told Mr. Gleason that he (Gleason) made

the "big bucks" and "could afford it [the credit card balance]."

74. In May 2002, when Respondent's outstanding credit card

balance was at issue, Mr. Gleason knew that Respondent was

having financial difficulties, as well as other problems.

Mr. Gleason testified that, in light of those difficulties, when

Respondent made the comments noted in paragraph 73, Mr. Gleason

believed that Respondent either did not have the money to pay

the credit card bill or did not intend to pay it.

75. Mr. Gleason did not interpret the alleged comments

(that Mr. Gleason made "big bucks" and could afford to pay the

outstanding credit card balance) as an attempt by Respondent to

coerce, threaten, or pressure him to pay the $354.18 or to

extort the money from him. Rather, Mr. Gleason testified that

he implied from those comments that Respondent was asking

Mr. Gleason for a loan.

76. Contrary to Mr. Gleason's interpretation of the

foregoing comments made by Respondent, Respondent did not ask

Mr. Gleason for a loan, imply that Mr. Gleason should lend him

money to pay the $354.18 outstanding credit card balance, or

direct Mr. Gleason to pay Respondent's outstanding credit card

balance.

77. At this proceeding, Mr. Gleason testified that

Respondent never repaid him for the $354.18 payment that he made

to the City for Respondent. This testimony contradicts an

earlier statement Mr. Gleason made at a City Commission meeting.

78. During the October 1, 2002, City Commission meeting,

Mr. Gleason stated that the commissioner, for whom he had paid

an outstanding credit card balance, had repaid him in full and

that he (Gleason) owed the commissioner some change.

Mr. Gleason did not name the commissioner to whom he was

referring, but he was referring to Respondent. 9/

79. Mr. Gleason made the statement that the commissioner

had paid him in full, in response to comments of Ms. Anderson,

in the context of a broader discussion about commissioners'

travel expenses. Almost as an aside to the specific "travel

expenses" topic being discussed, Ms. Anderson mentioned that

inappropriate charges made by "commissioners" were being

reimbursed by Mr. Gleason. 10/ During the course of making the

foregoing comments, Ms. Anderson never specifically named the

commissioners whose expenses were being reimbursed by

Mr. Gleason.

80. The statement Mr. Gleason made at the October 1, 2002,

City Commission meeting, is consistent with the credible

testimony of Respondent on two points. First, Mr. Gleason's

statement that he was paid in full supports Respondent's

testimony that he reimbursed Mr. Gleason for paying the $354.18

credit card balance to the City prior to October 1, 2002.

Second, Mr. Gleason's statement that he owed the commissioner

change is consistent with Respondent's testimony that, when he

reimbursed Mr. Gleason, he gave Mr. Gleason $355.00 in cash.

This was $.82 cents more than the outstanding credit card bill

that Mr. Gleason paid.

81. In this proceeding, Mr. Gleason testified that when

the issue of his paying Respondent's $354.18 credit card charges

came up at the City Commission meeting, he did not tell the

truth when he said that Respondent had paid him.

82. Mr. Gleason testified that on October 1, 2002, but

prior to the City Commission meeting that day, Respondent

approached Mr. Gleason and advised him that Respondent's $354.18

credit card bill issue might be raised at the meeting.

Mr. Gleason also testified that Respondent told him that if the

issue were raised at the meeting, Mr. Gleason should say that

Respondent had paid/reimbursed him. 11/

83. Mr. Gleason testified that he lied at the City

Commission meeting at the behest of Respondent, because he

"wanted to keep [Respondent's] favoritism in terms of

[Gleason's] job."

84. As to matters related to the payment of Respondent's

outstanding $354.18 credit card debt and the circumstances

related thereto, Respondent's testimony is found to be more

credible than that of Mr. Gleason.

Purchase of Surplus Computer

85. While serving on the City Commission, Respondent's

wife, Mrs. Howell, and their son, frequently visited City Hall.

During these visits, it was customary for Respondent's son, who

was about ten-years-old, to visit Mr. Gleason, whose office was

next door to Respondent's office. When Respondent's son went to

Mr. Gleason's office, Mr. Gleason would give him candy and

sodas.

86. Mr. Gleason and Respondent's son enjoyed a cordial

relationship.

87. The City of Ocoee periodically disposes of surplus

equipment, including computers, by use of a closed bid system

which was open to employees and elected officials.

88. In or about September 2003, during one of

Mrs. Howell's and her son's visits to Mr. Gleason's office, a

discussion ensued about computers and the City's upcoming sale

of its surplus computers. Mrs. Howell's son stated that he

wanted one. That day, Mrs. Howell's son had gone to

Mr. Gleason's office first, and she joined him there later.

89. In response to Respondent's and Mrs. Howell's son

saying he wanted a computer, Mr. Gleason volunteered to get him

one as a gift. Mrs. Howell responded by telling Mr. Gleason,

"No. He [referring to her son] can wait."

90. Mrs. Howell rejected Mr. Gleason's offer initially

because she felt that the family could not afford one, and she

did not feel comfortable allowing her son to accept a gift from

Mr. Gleason. However, she did not feel comfortable telling

Mr. Gleason, especially in her son's presence, that she could

not afford the computer her son wanted.

91. Mrs. Howell was adamant and repeatedly told

Mr. Gleason that she did not want him to purchase a computer for

her son. Nonetheless, Mr. Gleason insisted that he was going to

get the computer for her son anyway.

92. After Mrs. Howell made it clear that she did not want

Mr. Gleason to purchase a computer for her son, Mr. Gleason said

to her, "Listen, I'm going to get it and you can do whatever you

want, if you want to pay me back or whatever."

93. Mrs. Howell's final answer to Mr. Gleason was the same

one that she initially shared with Mr. Gleason--she did not want

him to purchase a computer for her son.

94. Mrs. Howell never asked or agreed to Mr. Gleason

buying a computer for her son, and she never agreed to pay

Mr. Gleason for purchasing a computer.

95. Respondent was not present in Mr. Gleason's office

with his wife and son when Mr. Gleason and Mrs. Howell were

discussing the surplus computer, but Mrs. Howell told Respondent

about the conversation later.

96. After learning of his wife's conversation with

Mr. Gleason, Respondent told Mr. Gleason that he did not want

his son to have a computer. Based on this discussion,

Respondent believed the matter was settled.

97. There was a computer in Respondent's home, and

Respondent believed that for his ten-year-old son to have his

own computer would be a detrimental distraction.

98. Mr. Gleason's offer to buy a surplus computer as a

gift for Respondent's son was subject to Mr. Gleason being a

successful bidder. In order to purchase one of the City's

surplus computers, a potential purchaser had to submit a bid.

Consistent with this policy, Mr. Gleason submitted a bid for a

surplus computer.

99. On September 19, 2003, Mr. Gleason was notified that

his bid of $130.10 was one of the successful bids and that he

had won one of the City's surplus computers. A few days later,

Mr. Gleason purchased the surplus computer to give to

Respondent's son.

100. On Monday, September 22, 2003, Mr. Gleason sent an

e-mail to Respondent indicating that he had successfully bid on

one of the surplus computers. In the e-mail, Mr. Gleason stated

that he was going to pay for the computer on Tuesday and then

"turn the PC [computer] over to [Respondent's son] for his

room." Mr. Gleason then wrote, "We can work out the details

later!" Both Respondent and his son read this e-mail.

101. The September 22, 2003, e-mail gave the false and/or

misleading impression that Respondent had asked Mr. Gleason to

purchase the computer for Respondent's son, knew that

Mr. Gleason had submitted a bid on the computer, and had agreed

to repay Mr. Gleason for the computer. In fact, none of those

impressions were accurate. Respondent never asked Mr. Gleason

to bid on a computer for Respondent's son or to purchase such

computer. Neither did Respondent ever promise to pay

Mr. Gleason for a computer.

102. Although the implication in the September 22, 2003,

e-mail was false, there is no indication that Respondent replied

to the e-mail. Furthermore, Respondent provided no explanation

or reason as to why he failed to respond to the misleading

e-mail.

103. On or about September 22, 2003, after Mr. Gleason

paid for and received the surplus computer, and he took the

computer to Respondent's home, unannounced.

104. When Mr. Gleason brought the computer to Respondent's

home, Respondent and his wife were placed in an awkward

position. Their son was home when Mr. Gleason brought the

computer and was very happy and excited about getting a

computer. Seeing the expression on her son's face, Mrs. Howell

did not have the heart to tell Mr. Gleason to take the computer

back. Rather than disappoint their son, Respondent and his wife

allowed Mr. Gleason to install the computer.

105. Not long after Mr. Gleason brought the computer to

Respondent's home, Respondent called Mr. Gleason several times

and told him to come and pick up the computer. Despite

Respondent's repeated directives, Mr. Gleason never came to get

the computer.

106. At some point, Mr. Gleason left a voice mail message

on Respondent's home telephone indicating that the surplus

computer he purchased and gave to Respondent's son was a gift.

107. Rather than picking up the computer as Respondent had

requested, on October 1, 2003, Mr. Gleason sent Respondent

another e-mail message which stated, "The computer is a gift

from [sic] to [Respondent's son], tell [Mrs. Howell] to not

worry about any cost-he is a good kid and I hope it helps him

with his school work."

108. The October 1, 2003, e-mail implies that Mrs. Howell

had agreed to pay for the computer, that Mr. Gleason had now

decided that the computer was a gift, and that he no longer

expected Mrs. Howell to repay him for purchasing the computer.

However, that implication is not only misleading, but unfounded.

109. Nevertheless, Mrs. Howell never agreed to repay

Mr. Gleason for the computer. Instead, she, like her husband,

had repeatedly refused Mr. Gleason's offer to purchase a

computer as a gift for their son.

110. Even though Respondent did not want Mr. Gleason to

purchase a computer for his son, there is no indication that

Respondent or his wife replied to the October 1, 2003, e-mail.

111. Respondent never directed, requested, threatened,

coerced, or pressured Mr. Gleason to purchase a computer for

their son. However, when Mr. Gleason brought the computer to

Respondent's home, he accepted it.

112. After realizing he had exercised poor judgment in

accepting the computer, Respondent did not return the computer

to Mr. Gleason. Instead, Respondent kept demanding that

Mr. Gleason pick up the computer from Respondent's home. Even

when it became apparent that Mr. Gleason was not going to pick

up the computer, Respondent never returned the computer to

Mr. Gleason.

113. The computer never worked properly so eventually,

Respondent and/or his wife threw it in the trash.

114. Mr. Gleason disputes and contradicts the foregoing

account of events related to his purchasing the computer for

Respondent's son. Mr. Gleason testified that Respondent

initially approached him and expressed an interest in the City's

surplus computers. According to Mr. Gleason, Respondent asked

if such computers could be purchased on a payment plan.

115. Mr. Gleason testified that after checking with the

appropriate office, he advised Respondent that the City did not

accept payment plans for the purchase of surplus computers and

equipment. Mr. Gleason testified that Respondent then told

Mr. Gleason that he (Respondent) wanted Mr. Gleason to get him a

computer and that he expected Mr. Gleason to be successful on

the bid.

116. Mr. Gleason testified that in October 2003, he

decided to give the computer to Respondent's son because his

relationship with Respondent by this time had become

adversarial, and he decided that it would be in his best

interest not to make an issue of purchasing the computer.

117. With regard to the purchase of the computer for

Respondent's son and issues related thereto, the testimony of

Respondent and Mrs. Howell is found to be more credible than

that of Mr. Gleason.

Gleason's Termination as City Manager

118. In February 2004, about four months after Mr. Gleason

gave the computer to Respondent's son, Respondent and two other

City Commission members voted to terminate Mr. Gleason's

employment with the City. As a result of this majority vote,

Mr. Gleason was terminated as city manager.

119. Respondent voted to terminate Mr. Gleason because he

believed that Mr. Gleason was not doing the job. Respondent

also was concerned that Mr. Gleason had taken inappropriate and

unsolicited actions (i.e., purchasing the computer in September

2003 and paying the $354.18 credit card debt in June 2002),

presumably to help Respondent.

120. All the actions taken by Mr. Gleason were unsolicited

and done gratuitously because Mr. Gleason thought that he was

losing Respondent's support, and Mr. Gleason was trying to gain

or regain Respondent's support. Instead of gaining Respondent's

support, Mr. Gleason's inappropriate and unsolicited actions had

the opposite effect. Respondent, displeased with Mr. Gleason's

inappropriate and unsolicited actions, was offended by those

actions and voted to terminate Mr. Gleason as city manager.

121. The month after he was terminated, Mr. Gleason filed

a Complaint with the Commission on Ethics (hereinafter the

"Commission on Ethics" or "Commission") making the allegations,

which are the subject of this proceeding.

CONCLUSIONS OF LAW

122. The Division of Administrative Hearings has

jurisdiction over the parties and the subject matter of this

proceeding. §§ 120.569 and 120.57(1), Fla. Stat. (2007).

123. Section 112.322, Florida Statutes, and Florida

Administrative Code Rule 34-5.0015 authorize the Commission to

conduct investigations and to make public reports on complaints

concerning violations of Chapter 112, Part III (the Code of

Ethics for Public Officers and Employees).

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

the contrary, is on the party asserting 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); and

Balino v. Department of Health and Rehabilitative Services ,

348 So. 2d 349 (Fla. 1st DCA 1977). In this proceeding, it is

the Commission, through its Advocate, that is asserting the

affirmative, that Respondent violated Subsections 112.313(2),

(4) and (6).

125. The Commission on Ethics proceedings, seeking

recommended penalties against a public officer, require proof of

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

Latham v. Florida Comm'n on Ethics , 694 So. 2d 83 (Fla. 1st DCA

1997). Therefore, in order to prevail, the Commission must

establish by clear and convincing evidence the elements of

Respondent's violations and the underlying facts upon which the

alleged charges are based.

126. Clear and convincing evidence has been described by

the Supreme Court of Florida as follows:

[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).

Alleged Violations of Section 112.313(6)

127. In this case, it is alleged that Respondent, while a

City commissioner, violated Subsection 112.313(2), (4) and (6),

by requiring Mr. Gleason, then city manager, to: (1) pay

Respondent's fine caused by the late-filing of Respondent's

Campaign Treasurer's Report; (2) waive late fees and other costs

associated with Respondent's delinquent water bill; (3) pay

non-reimbursable expenses incurred by Respondent on his

City-issued credit card; and (4) buy a computer for Respondent's

son.

128. Subsection 112.313(6) provides 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.

129. The term "corruptly" is defined by Subsection

112.312(9), 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.

130. In order to establish a violation of Subsection

112.313(6), the following elements must be proved.

1. The Respondent must have been a public

officer or employee.

2. The 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. Respondent's actions must have been

taken to secure a special privilege, benefit

or exemption for him- or herself or others.

4. Respondent must have acted corruptly,

that is, with wrongful intent and for the

purpose of benefiting him or herself or

another person from some act or omission

which was inconsistent with the proper

performance of public duties.

131. Respondent has stipulated that as a commissioner for

the City of Ocoee, he was a "public officer," and, as such,

subject to the requirements of Chapter 112, Part III, Florida

Statutes. Therefore, the first element required to prove a

violation has been established.

132. Next, it must be shown that Respondent used or

attempted to use his official position, property, or resources

within his trust or performed his official duties to secure a

special privilege, benefit, or exemption for himself or others.

133. The evidence failed to establish that Respondent

required, directed, coerced, threatened, or pressured

Mr. Gleason to pay the $150.00 fine for the late-filed Campaign

Treasurer's Report. In the instant case, the evidence proved

that Respondent always believed that the fine would be paid by

his campaign treasurer, who had assumed responsibility for the

fine and promised to pay it.

134. The underlying factual allegation upon which the

violation of Subsection 112.313(6), is based is that Mr. Gleason

paid the $150.00 fine. The evidence did not establish this

alleged fact. The evidence established that the $150.00 fine

was paid voluntarily by Respondent's campaign treasurer out of

her personal funds. Therefore, the element related to "wrongful

intent" need not be addressed.

135. The evidence failed to establish that Respondent

required, directed, coerced, threatened, or pressured the city

manager to waive any late fees or other costs associated with

Respondent's water bill. To the contrary, the evidence showed

that Respondent took no action to have the late fees and related

charges waived and was unaware of the circumstances that

resulted in the waiver.

136. Assuming arguendo that Respondent requested a waiver

of the late fees and/or other costs related to his delinquent

water bill, there would still be no violation of Subsection

112.313(6). The reason is that the waiver provided no special

benefit to Respondent. The evidence showed that the City

routinely granted waivers of late fees and other charges to

citizens of the City of Ocoee who were having financial

difficulties under the City's "forgiveness" policy. It is

undisputed that Respondent was eligible for the waiver he

received under the "forgiveness" policy. Therefore, the

one-time waiver granted to Respondent under the City's

forgiveness policy was consistent with the City's existing

policy and was not a special benefit to him.

137. Having failed to establish that Respondent used or

attempted to use his position to secure a special privilege,

benefit or exemption, the element related to "wrongful intent"

need not be addressed.

138. The evidence failed to establish that Respondent

required, directed, coerced, threatened, or pressured

Mr. Gleason to pay for expenditures of $354.18 on Respondent's

City-issued credit card. Rather, the evidence established that

Respondent had no prior knowledge that Mr. Gleason had paid the

bill and was surprised to learn that he had done so. The

evidence established that after Respondent learned that

Mr. Gleason had paid the $354.18 credit card bill, Respondent

repaid him.

139. Based on the foregoing conclusion, Respondent did not

use or attempt to use his official position to secure a special

benefit, payment of the $354.18 credit card bill. Therefore,

there is no need to address the element related to "wrongful

intent."

140. The evidence failed to establish that Respondent used

or attempted to use his official position to secure a special

benefit, a computer for his son. There was no evidence that

Respondent required, directed, coerced, threatened, or pressured

Mr. Gleason to purchase a computer for his son. To the

contrary, the evidence established that both Respondent and his

wife repeatedly told Mr. Gleason that they did not want him to

purchase a computer for their son.

141. The evidence also established that Mr. Gleason

ignored and disregarded the clear directive of Respondent and

his wife to not purchase a surplus computer for their son and,

without their knowledge, purchased one anyway.

142. Assuming that the computer purchased by Mr. Gleason

for Respondent's son was a special benefit, there still is no

violation of Subsection 112.313(6), where Respondent never used

or attempted to use his official position to secure the special

benefit. As noted above, the evidence established that

Mr. Gleason purchased the computer without Respondent's

knowledge and after Respondent clearly told him not to

purchase it.

143. In this case, the evidence failed to establish that

Respondent used or attempted to use his official position to

secure a benefit, a computer for his son. Therefore, the

element of "corrupt intent" need not be addressed.

144. For the reasons stated above, the alleged violations

of Subsection 112.313(6) were not proven.

Alleged Violations of Subsection 112.313(4)

145. It is charged that by committing the acts alleged in

paragraph 124 above, Respondent received unauthorized

compensation in violation of Subsection 112.313(4).

146. Subsection 112.313(4) provides as follows:

UNAUTHORIZED COMPENSATION.--No public

officer, employee of an agency, or local

government attorney or his or her spouse or

minor child shall, at any time, accept any

compensation, payment, or thing of value

when such public officer, employee, or local

government attorney knows, or, with the

exercise of reasonable care, should know,

that it was given to influence a vote or

other action in which the officer, employee,

or local government attorney was expected to

participate in his or her official capacity.

147. In order to establish a violation of Subsection

112.313(4), the following elements must be proved.

1. The Respondent must have been a public

officer or employee.

2. The Respondent or the Respondent's

spouse or minor child must have accepted

some compensation, payment or thing of

value.

3. When such compensation, payment or thing

of value was accepted:

a) the Respondent knew that it was given to

influence a vote or other action in which

the Respondent was expected to participate

in an official capacity; or

b) the Respondent, with the exercise of

reasonable care, should have known that it

was given to influence a vote or other

action in which the Respondent was expected

to participate in an official capacity.

148. As noted in the paragraph above, at all times

relevant to this proceeding, Respondent was a "public officer."

Therefore, the first element necessary to establish a violation

of Subsection 112.313(4) has been met.

149. Next, it must be proven that Respondent, his spouse

or his minor child accepted a computer, which is a "thing of

value."

150. Once the first two elements are established, it must

be shown that when the compensation, payment, or thing of value

was accepted, Respondent knew or, with the exercise of

reasonable care, should have known that it was given to

influence a vote or other action in which Respondent was

expected to participate in an official action.

151. With regard to the allegations related to the $150.00

fine for Respondent's late-filed Campaign Treasurer's Report,

the required burden of proof was not met to establish a

violation of Subsection 112.313(4).

152. Here, it is alleged Respondent accepted $150.00,

which constituted the compensation, payment, or thing of value

from Mr. Gleason. The factual allegation underlying this charge

is that when Respondent received the $150.00 from Mr.Gleason,

Respondent knew or, with the exercise of reasonable care, should

have known it was given to influence a vote or other action in

which Respondent was expected to participate (i.e., presumably,

Respondent's vote to retain Mr. Gleason as city manager).

153. The evidence established that the $150.00 fine was

paid by Respondent's campaign manager and not by Mr. Gleason.

Thus, any charges emanating from that unproven factual

allegation that the fine was paid by Mr. Gleason must fail.

154. Having failed to show that Mr. Gleason paid the fine,

the third element required to prove a violation of Subsection

112.313(4) can not be proven and is not addressed.

155. Based on the foregoing, the evidence failed to

establish that the allegation related to the $150.00 fine is a

violation of Subsection 112.313(4).

156. The evidence established that $100.00 in late fees

and service interruption fees were waived for Respondent. The

value of the fees waived for Respondent constituted

compensation, payment, or a thing of value within the meaning of

Subsection 112.313(4). Undoubtedly, the removal of these fees

from Respondent's account was accepted by him. However, the

evidence failed to show that when Respondent accepted the

waiver, he knew or, with the exercise of reasonable care, should

have known that the waiver had been issued at the direction of

Mr. Gleason and was given to influence a vote or other action in

which he was expected to participate.

157. The evidence established that when the waiver was

given to Respondent and accepted by him, he had no knowledge of

who authorized the waiver or the reason it was authorized.

After all, as the undisputed evidence established, the waiver of

late fees given to and accepted by him was routinely given to

citizens of the City of Ocoee under the "forgiveness" policy.

Therefore, Respondent did not know and, with reasonable care,

should not have known that the waiver was given to influence a

vote or action in which he was to participate.

158. Based on the foregoing, the evidence failed to

establish that the waiver of Respondent's late fees related to

his water bill is a violation of Subsection 112.313(4).

159. The evidence failed to prove that Mr. Gleason's

$354.18 payment for non-reimbursable charges on Respondent's

City-issued credit card was compensation, payment, or a thing of

value accepted by Respondent.

160. The evidence established that initially, Respondent

did not know that Mr. Gleason had paid the bill, but upon

learning that the unsolicited payment had been made, he repaid

the funds to Mr. Gleason. Therefore, Respondent never accepted

the $354.18 payment Mr. Gleason made on Respondent's behalf.

161. Having failed to prove that Respondent accepted the

$354.18 payment made by Mr. Gleason, there is no need to address

the third element required to show a violation of Subsection

112.313(4).

162. Based on the foregoing, the evidence failed to

establish that Mr. Gleason's $354.18 payment of Respondent's

City-issued credit card bill is a violation of Subsection

112.313(4).

163. Finally, it is alleged that Respondent's conduct with

respect to a surplus computer purchased by Mr. Gleason for

Respondent's minor son is a violation of Subsection 112.313(4).

164. The evidence established that Respondent accepted the

computer from Mr. Gleason and that the computer constituted a

thing of value.

165. The evidence established that Respondent changed his

mind about accepting the computer, but that he did not ever

return the computer to Mr. Gleason.

166. Having established that Respondent accepted the

computer, it must be established that when Respondent accepted

the computer, he knew or, with the exercise of reasonable care,

should have known that it was given to influence a vote or other

action in which Respondent was expected to participate.

167. The clear and convincing evidence established that

Respondent accepted the computer and that when he accepted the

computer, he knew or, with the exercise of reasonable care,

should have known that the computer was given to influence a

vote or other action in which Respondent was expected to

participate.

168. The evidence established that in or about June 2002,

when Respondent found out that Mr. Gleason had paid his credit

card bill, Respondent believed Mr. Gleason had done so in order

to retain Respondent's support or to buy Respondent's vote.

169. In January 2004, the City Commission had to take

affirmative action on Mr. Gleason's contract as city manager or

the contract was automatically renewed. This and other issues

routinely came before the City Commission. Therefore, in late

September 2003, when Mr. Gleason insisted on giving Respondent's

son a computer, Respondent knew or should have known that the

computer was being given to influence Respondent's vote or other

action in which Respondent was expected to participate.

170. Based on the foregoing, the clear and convincing

evidence established that Respondent violated Subsection

112.313(4).

Alleged Violations of Subsection 112.313(2)

171. Finally, it is alleged that the charges set forth in

paragraph 124 constitute violations of Subsection 112.313(2).

172. Subsection 112.313(2) 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, reward, 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.

173. In order to establish a violation of Subsection

112.313(2), the following elements must be proved.

1. The Respondent must have been either a

public officer, a public employee or a

candidate for nomination or election.

2. The Respondent must have solicited or

accepted something of value to him or her,

including a gift, loan, reward, promise of

future employment, favor, or service.

3. Such solicitation or acceptance must

have been based upon an understanding that

the Respondent's vote, official action or

judgment would be influenced thereby.

174. Respondent has stipulated that he was a "public

officer" and, as such, subject to the requirements of

Chapter 112, Part III, Florida Statutes.

175. Next, it must be established that Respondent

solicited or accepted something of value to him, such as a gift,

loan, reward, favor, or service. If it is established that the

public officer solicited or accepted a gift, loan, reward,

favor, or services, it must be proven that the solicitation or

acceptance engaged in by the public officer was based on an

understanding that the officer's vote, official action, or

judgment would be influenced thereby.

176. The evidence failed to establish that Respondent

solicited or accepted from Mr. Gleason the $150.00 payment for

the fine resulting from the late-filed Campaign Treasurer's

Report. Because Respondent did not solicit or accept the

$150.00 payment from Mr. Gleason, there is no need to address

the last element required to prove a violation of Subsection

112.313(2).

177. Based on the foregoing, the evidence failed to

establish that the allegation related to payment of the $150.00

fine is a violation of Subsection 112.313(2).

178. The evidence failed to establish that Respondent

solicited or accepted from Mr. Gleason $354.18 payment for

Respondent's credit card bill. In this case, the evidence

established that Respondent had no prior knowledge that

Mr. Gleason had paid the bill, but after learning that

Mr. Gleason had done so, Respondent reimbursed him. Where there

is no evidence that Respondent accepted the $354.18 payment,

there is no need to address the third element required to show a

violation of Subsection 112.313(2).

179. Based on the foregoing, the evidence failed to

establish that the allegation related to Mr. Gleason's payment

of Respondent's credit card bill is a violation of Subsection

112.313(2).

180. The evidence failed to establish that Respondent

solicited or accepted from Mr. Gleason the waiver of late fees

and other costs associated with Respondent's delinquent water

bill. The evidence established that Respondent did not ask

Mr. Gleason to waive the late fees and other charges and that he

was not aware that Mr. Gleason had authorized the Utilities

Department to waive those fees and charges. Under these

circumstances, the waiver did not constitute solicitation or

acceptance by Respondent. Having failed to establish such

solicitation or acceptance, there is no need to address the

third element required to prove a violation of Subsection

112.313(2).

181. Based on the foregoing, the evidence failed to prove

that the allegation related to the waiver of charges and fees

related to Respondent's water bill violated Subsection

112.313(2).

182. With regard to the computer purchased by Mr. Gleason

for Respondent's son, the evidence established that Respondent

accepted the computer. At the time Respondent accepted the

computer, he believed it was something of value. However, there

was no clear and convincing evidence that Respondent's

acceptance of the computer was based on an understanding that

Respondent's vote or other official action would be influenced

by such acceptance. The evidence established that a few months

after Respondent accepted the computer, he voted to terminate

Mr. Gleason.

183. Based on the foregoing, the evidence failed to

establish that Respondent, by accepting the computer purchased

by Mr. Gleason, violated Subsection 112.313(2).

Ultimate Conclusions

184. In this case, the burden of proof was not met with

respect to eleven of the twelve alleged violations.

185. Significantly, many of the underlying factual

allegations which are the basis for the alleged violations of

Subsections 112.313 (2), (4), and (6) were not proven by clear

and convincing evidence.

186. Respondent did not violate Subsection 112.313(2),as

it relates to the alleged payment of Respondent's $150.00 fine

and his $354.18 credit card bill, waiver of the fees and charges

related to his water bill, and the purchase of a computer.

187. Respondent did not violate Subsection 112.313(4), as

it relates to payment of Respondent's $150.00 fine and his

$354.18 credit card bill, and waiver of the fees and charges

related to his water bill.

188. Respondent violated Subsection 112.313(4),as it

relates to the purchase of the computer.

189. Respondent did not did not violate Subsection

112.313(6),as it relates to the alleged payment of Respondent's

$150.00 fine and his $354.18 credit card bill, waiver of the

fees and charges related to his water bill, and the purchase of

the computer.

190. For the foregoing reasons, it is concluded that

Respondent did not violate Subsections 112.313(2), (4) and (6).

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is,

RECOMMENDED that a final order and public report be entered

finding that Respondent violated Subsection 112.313(4), Florida

Statutes, in one of the four instances alleged; Respondent did

not violate Subsection 112.313(4), Florida Statutes, in three of

the four instances alleged; Respondent did not violate

Subsection 112.313(6), Florida Statutes, in any of the four

instances alleged; and Respondent did not violate Subsection

112.313(2), Florida Statutes, in any of the four instances

alleged; and imposing a civil penalty of $500.00 for the single

violation.

DONE AND ENTERED this 7th day of September, 2007, 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

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 7th of September, 2007.

ENDNOTE

1/ Unless otherwise indicated, all citations are to the 2004

Florida Statutes.

2/ Ms. Prettyman had not previously paid the fine because of her

financial situation during the preceding year.

3/ There is no dispute that Friday, May 17, 2002, was a payday

for City employees.

4/ There is no dispute that this was a policy that was

instituted by and implemented by Mr. Gleason to ensure that the

gym facilities at the recreation center were available to

citizens during lunchtime.

5/ The reason Mr. Gleason called Ms. Sills to inquire about the

policy regarding waiver of late charges is unclear. This is

particularly true in light of Mr. Gleason's testimony that he

authorized or granted such waivers in financial "hardship"

cases. See Finding of Fact, paragraph 33.

6/ At hearing, there was conflicting testimony reflecting some

confusion among City employees about the number of counties

included in the "local area." Two City employees, the finance

director and the executive assistant to the mayor and

commissioners, testified that the "local area" consisted of five

counties and three counties, respectively.

7/ Respondent's testimony that he did not understand the policy

regarding use of the City-issued credit card is supported by the

credible testimony of the City's finance director, Wanda Horton.

Ms. Horton testified that when the City first issued the credit

cards to the commissioners, she spoke to Respondent about the

use of the City-issued credit card after an improper expense was

charged on the credit card. At that time, Ms. Horton had

concerns that Respondent did not "have a good understanding [of]

what was allowed and not allowed on the City-issued credit

card."

8/ There were prior instances when the City had advised

Respondent that it could not reimburse him for certain charges

made on the City-issued credit card. In all those prior

instances, Respondent paid the City for the non-reimbursable or

disallowed expenses.

9/ As part of a lengthy discussion initiated by Ms. Anderson

about the Commission's travel policy, the citizen mentioned that

inappropriate charges were being put on the City-issued credit

cards, that those charges were not being timely reimbursed to

the City, and, that in some cases, the charges were "not

reimbursed by City Commissioners, but by the City Manager."

Although the citizen did not refer to a particular commissioner

at the end of the travel policy discussion, Mr. Gleason made the

following comment:

I wanted to clear the matter up to close the

books. I was asked, due to the individual

being out of town, would I take care of

that. I was paid for those funds, three

hundred fifty-four dollars and sixty-one

cents or what have you. In fact, to be very

honest, I probably owe the change, because I

was paid three hundred fifty-five dollars or

whatever the difference was on that.

. . . but for the record that issue was

paid, and was paid to me in full, no

different than as a loan or somebody had

done involving that process, because if I

got to have a job where I have to start

paying expenses to keep my job, I don't need

to be working here.

10/ She presumably obtained this information during a review of

public records.

11/ During his direct testimony in this proceeding, Mr. Gleason

seemed to imply that he had no prior knowledge that

commissioners' travel expenses would be discussed at the

October 1, 2002, City Commission meeting until Respondent told

him. However, during cross-examination, he admitted that not

only did he know that this topic would be discussed, but so did

the mayor, the City commissioners, and City staff.

COPIES FURNISHED :

Linzie F. Bogan, Esquire

Advocate for the Florida

Commission on Ethics

Office of the Attorney General

The Capitol, Plaza Level 01

Tallahassee, Florida 32399-1050

Kaye Starling, Agency Clerk

Florida Commission on Ethics

3600 MacClay Boulevard, South, Suite 201

Post Office Drawer 15709

Tallahassee, Florida 32312

Philip C. Claypool, Executive Director

and General Counsel

Florida Commission on Ethics

3600 MacClay Boulevard, South, Suite 201

Post Office Drawer 15709

Tallahassee, Florida 32312

C. Randall Freeman, Esquire

Freeman Legal Associates, P.A.

151 West Silver Star Road

Post Office Box 339

Ocoee, Florida 34761

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 filed with the agency that

will issue the Final Order in this case.