06-001667EC In Re: Chuck Chockalingum vs. * Status: Closed Recommended Order on Tuesday, October 10, 2006.

Summary: Respondent committed two violations of Section 112.313(6), Florida Statutes, using his public position for personal benefit. Recommend the imposition of a $20,000 penalty plus $2,481.35 in restitution, with public censure and reprimand.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

IN RE: CHUCK CHOCKALINGUM , ) Case No. 06 - 1667EC

)

Respondent . )

)

RECOMMENDED ORDER

The Division of Administrative Hearings, by its duly -

designated A dministrative Law Judge Don W. Davis, held a formal

hearing, pursuant to notice, in the above - styled case on

Tuesday, July 25, 2006, in Tallahassee, Florida.

APPEARANCES

For Advocate: James H. Peterson, III , Esquire

F lorida Bar No. 0473057

Senior Assistant Attorney General

Attorney General’s Office

The Capitol , Plaza Level 01

Tallahassee, Florida 32399 - 1050

For Respondent: No Appearance

STATEMENT OF THE ISS UES

The issues for determination are:

I. Whether Respondent, as Public Works

Director for the Town of Dundee, violated

Section 112.313(6), Florida Statutes, by

using Town employees to work on Respondent’s

home at the Town’s expense, and if so, what

is a n appropriate recommended penalty.

II. Whether Respondent, as Public Works

Director for the Town of Dundee, violated

Section 112.313(6), Florida Statutes, by

using or allowing others to use Town

vehicles, equipment, and/or materials for

Respondent’s p ersonal benefit, and if so,

what is an appropriate recommended penalty.

PRELIMINARY STATEMENT

On December 7, 2005, the Florida Commission on Ethics

issued an order finding probable cause to believe that

Respondent, Chuck Chockalingum, 1/ as Public Works Director for

the Town of Dundee, violated Section 112.313(6), Florida

Statutes, through use of Town employees to work on Respondent’s

home at the Town’s expense, and through use or allowing others

to use Town vehicles, equipment, an d/or materials for

Respondent’s personal benefit. The case was forwarded to the

Division of Administrative Hearings on May 10, 2006.

Prior to the final hearing, the Advocate submitted a

Unilateral Prehearing Statement. Respondent did not submit a

prehea ring statement and did not appear or participate in the

final hearing. At the final hearing, the Advocate submitted the

deposition testimony, together with the exhibits attached to the

depositions, of five witnesses, all of whom reside more than 100

miles from Tallahassee: Josh Lauver, John Phillips, Pam Lawson,

Jim Gallagher, and Michael Bennett. In addition to the exhibits

attached to the depositions, the Advocate introduced nine pre -

marked exhibits into evidence. The Advocate also introduced

three ot her exhibits at the final hearing.

A transcript of the Final Hearing was filed with the

Division of Administrative Hearings on August 6, 2006.

The Advocate’s Proposed Recommended Order was submitted in

accordance with the due date established at the f inal hearing.

Notice was provided to Respondent that he had the opportunity to

file a p roposed r ecommended o rder. Respondent did not file a

p roposed r ecommended o rder. All references to Florida Statutes

are to the 2005 edition, unless otherwise noted .

FINDINGS OF FACT

1. Respondent was hired as p ublic w orks d irector for the

Town of Dundee (Town) in March 2004 and served in that capacity

from April 7, 2004, until his termination on October 11, 2004.

2. Respondent, as an employee of the Town of Dundee, was

subject to the Town of Dundee’s Personnel Rules & Regulations

manual. The manual was available throughout city hall.

3. Upon his employment as p ublic w orks d irector for the

Town, Respondent signed acknowledgments of the Town’s compu ter

policy, drug - free workplace policy, and conflict - of - interest

policy. He also signed a statement acknowledging that he had

received and read the Town’s sexual harassment policy. The

Town’s sexual harassment policy is contained within the Town’s

Person nel Rules & Regulations manual. The Town’s drug - free

workplace policy is found in the Town’s Personnel Rules &

Regulations manual. Respondent’s acknowledgments evidence s his

access to and familiarity with the Town’s Personnel Rules &

Regulation manual.

4. The Town’s Personnel Rules & Regulations manual 2/

specifically, on page 17, paragraph 2, provides:

Town vehicles, equipment, supplies, tools

and uniforms shall not be used for private

or unauthorized purposes.

5. Page 19 of the Personne l Rules and Regulations manual

provides:

Department/Division Heads shall maintain

daily time records and shall furnish the

Town Manager with payroll records for all

employees under their supervision, duly

certified for payment on the working day

after the close of the payroll period,

unless otherwise authorized.

Department/Division Heads shall review and

sign their payrolls, and shall report any

irregularities to the Town Manager

immediately.

6. Page 22 of the manual sets forth the overtime pay

pol icy of the Town:

OVERTIME PAY General Policy :

Department/Division Heads make every effort

to maintain service level standards while

keeping overtime use to a minimum.

7. On page 22 of the manual, overtime work approval is

required by the following langua ge:

All overtime work must be approved by the

Department/Division Head or the Town

Manager, or their designee.

8. Page 24 of the manual requires:

In general, normal working hours for Town

employees shall be 8:00 a.m. to 5:00 p.m.,

Monday through Frida y, except Public Works

employees whose normal working hours are

Monday through Friday, 7:00 a.m. to 4:00

p.m. The normal work week shall be forty

(40) hours, eight (8) hours per day.

9. Under the heading of “Discipline,” the Town’s Personnel

Rules & Regulations manual provides:

It shall be the duty of all employees to

maintain high standards of conduct,

cooperation, efficiency, and economy in

their work for the Town.

Department/Division Heads and supervisors

shall organize and direct the work of th eir

units in a manner calculated to achieve

these objectives.

10. Causes for Disciplinary Action as provided by the

Town’s Personnel Rules & Regulations manual include the

following offenses:

i. Theft, destruction or loss of Town

monies, equipmen t or property.

ii. False representation to a superior as

to the quality and/or quantity of work

performed.

iii. Soliciting donations, gifts, bribes, or

other valuable things for any personal

purpose during work hours, including the

sale of any items or s olicitation of any

goods, services or products.

iv. Unauthorized use of Town property or

services of other employees for non - Town

related purposes.

11. Disciplinary action is also provided by the Town’s

Personnel Rules & Regulations manual , where:

The employee has induced or has attempted to

induce, an officer or employee of the Town

to commit an unlawful act or to act in

violation of any lawful departmental or

official regulation or order.

12. Discipline may also be imposed for record

falsif ication , where an employee:

[F]alsified any Town records, or assisted in

concealing the fact that another employee

has falsified Town records. This shall

include the record keeping of hours worked.

13. Shortly after becoming p ublic w orks d irector for the

Town, Respondent purchased a house located at 225 Hickory

Hammock Road between Dundee and Lake Wales.

14. In late June 2004, Respondent began using Town

employee Josh Lauver and Town equipment to work on Respondent’s

house on Hickory Hammock Road. A t the time, Lauver was 16 years

old. He was employed by the Town’s Public Works Department from

June 1 st until August 27 th , 2004, during his summer break from

high school.

15. For approximately the first month and a - half, Harold

Jones was Lauver’s immed iate supervisor. Then Harold Jones was

demoted and John Phillips became Lauver’s supervisor.

Respondent, who was over all employees at the Public Works

Department, supervised Lauver’s supervisors. Lauver would

sometimes take direct orders from Responden t.

16. Lauver’s general duties as an employee for the Town

included cleaning the buildings around Town, mowing, weedeating,

using the Town’s tractor, and using the Town’s backhoe , as

directed.

17. On or about June 23, Respondent directed Lauv er to

drive the Town’s tractor, with the Town’s attached bush - h og, to

Respondent’s house on Hickory Hammock Road and bush - hog the

entire area around the house, consisting of approximately five

acres.

18. Lauver drove the Town’s tractor and bush - hog to

Re spondent’s house as directed by Respondent while Respondent

followed in his Jeep. Once there, Lauver used the Town’s

tractor and bush - hog to mow all of Respondent’s property. The

bush - hogging took about three or four hours and was accomplished

after 5:00 p.m. , while Lauver was still on the Town’s clock.

19. Lauver was paid by the Town for this after - hours work

and Respondent knew it, as demonstrated by the fact that he

either told Lauver not to clock out or initialed hand - written

time entries indi cating his approval. Official records verified

by Lauver show that Lauver received four and a - half hours on his

time card for the hours he worked at Respondent’s house on

June 23, 2004, and was paid by the Town for that work.

20. In addition, the e ntry on Lauver’s time card for

June 23, 2004, shows a hand - written entry initialed by

Respondent approving 12.5 hours for that date.

21. On June 26, 2004, at Respondent’s direction, Lauver

followed Respondent in the Town’s dump truck while Respondent

dro ve the Town’s backhoe to Respondent’s house. Although Lauver

told Respondent that he did not have the proper license to drive

the dump truck, Respondent told him to drive it anyway. The

drive took approximately an hour and a half. Once there, Lauver

use d the backhoe to dismantle garages attached to Respondent’s

house and then used it to load the debris in the Town’s dump

truck. Lauver did most of the work while Respondent watched.

After the dump truck was loaded, Lauver drove it to the Town

dump that w as for Town employees’ use only, and used his Town

issued key to get in and dump the load. After wards , he and

Respondent returned the equipment, arriving after midnight.

22. As with the bush - hogging, Lauver was paid by the Town

for dismantling the g arages for Respondent’s personal benefit.

On another day, Respondent directed Lauver to use the Town’s

backhoe to remove a large stump from Respondent’s back yard.

This time Lauver drove the backhoe while Respondent followed in

his Town vehicle. Once ag ain, Lauver did the work for

Respondent’s personal benefit and was paid by the Town.

23. Other tasks that Lauver did for Respondent’s personal

benefit at Respondent’s direction while being paid by the Town

include pressure - washing Respondent’s house , painting and

plastering the ceiling in Respondent’s house, mowing, and fixing

a water leak in an underground pipe.

24. Lauver’s mowing for Respondent occurred on two

occasions other than the initial bush - hogging. On one occasion

Lauver used the Town’s Hussler Z mower , and on the other he used

the Town’s Grasshopper mower. On each occasion he used one of

the Town’s trailers to transport the mowers. The mowing took

approximately three hours each time.

25. When Lauver helped fix a water pipe at R espondent’s

house he used the Town’s “Ditch Witch” at Respondent’s

direction. Lauver towed the Ditch Witch to Respondent’s house

behind one of the Town’s vehicles. Once there, Lauver used it

to dig a ditch while Respondent and John Phillips replaced the

leaky pipe with new pipe and pipefittings owned by the Town that

they obtained from the Town’s water department area.

26. When Lauver asked Respondent about why he was getting

paid by the Town for work at Respondent’s house, Respondent told

him it had al l been “cleared.”

27. Lauver, in testimony at the final hearing, identified

those time cards documenting time during which he was working on

Respondent’s personal tasks instead of for the Town. All of the

time card entries identified by Lauver as times when he was

actually working at Respondent’s house, except for Saturday,

June 26, 2004, have hand - written entries that were initialed by

Respondent.

28. Times identified by Lauver on his time cards as times

when he was actually working for Respondent’s pe rsonal benefit

in the summer of 2004 , while being paid by the Town include:

Wednesday, June 23 rd ( 3.5 hours);

Saturday, June 26 th ( 9.5 hours);

Thursday, July 15 th (3 hours);

Friday, July 16 th (3 hours);

Saturday, July 17 th (6 hours);

Mo nday, July 19 th (5.5 hours);

Thursday, July 22 nd (5.5 hours);

Saturday, July 24 th (10.5 hours);

Friday, July 30 th (4 hours); and,

August 3 rd (4.5 hours).

29. Around the end of June or beginning of July 2004 , Town

Accountant Pam Lawson became sus picious about the amounts of

overtime on Lauver’s time cards. She was concerned because

Lauver was under the age of 18, missing lunches, and had a lot

of overtime on days when most employees were not working.

30. Around the same time that she noticed e xcessive

overtime amounts on Lauver’s time cards, Lawson learned from the

secretary for the p ublic w orks d epartment, Jennette Raine, that

Lauver might be working at Respondent’s home and that other Town

employees were helping remodel Respondent’s home afte r hours.

Lawson also heard Respondent and Lauver talking about all of the

work they had done at Respondent’s house. Additionally, both

Respondent and Lauver had conversations with Lawson about the

painting and remodeling they had done at Respondent’s hou se, but

they did not reveal that Lauver was on the Town’s clock at the

time.

31. Lawson identified 12 dates that she considered

“suspicious” on Lauver’s time cards, and calculated a figure of

$843.33 as being the approximate amount that the Town pr obably

paid Lauver for work he did at Respondent’s house. Seven of the

dates identified by Lawson as suspicious correspond to dates

identified by Lauver as times when he worked at Respondent’s

home while being paid for the work by the Town.

32. Th e hours on Lauver’s Town time card identified by

Lauver as time spent working for Respondent’s personal benefit

total approximately 52 hours. Extra hours on Lauver’s time card

were generally paid by the Town at the overtime rate, which,

using the same met hodology employed by Lawson in calculating

Lauver’s overtime pay, was one and a half times more than his

regular pay rate, or $11.85 for each overtime hour. The product

of 52 hours times $11.85/hour is $616.20 and represents a fair

approximation of the am ount that Lauver was paid by the Town for

those hours Lauver worked at Respondent’s house for Respondent’s

personal benefit.

33. Lawson also heard rumors that John Phillips was

working at Respondent’s house. She understood that Respondent

had demote d Harold Jones from s treet s upervisor and promoted

Phillips to that position because Harold had refused to do work

that Respondent had asked him to do , such as take equipment to

Respondent’s home. Phillips was promoted on July 20, 2004.

34. Philli ps admitted that he worked at Respondent’s house

using Town equipment. Specifically, Phillips advised that one

time he mowed Respondent’s yard using one of the Town’s mowers

at Respondent’s request. He also verified that while Respondent

was the p ublic w orks d irector for Dundee, Respondent used or had

others use the Town’s tractor with attached bush - hog, the Town’s

backhoe, the Town’s dump truck, and the Town’s Ditch Witch.

Phillips also saw Lauver using the Town tractor and bush hog to

mow the grass aro und Respondent’s house, saw Lauver using the

Town’s backhoe to remove sheds attached to the back of

Respondent’s house, and saw Lauver use the Town’s Ditch Witch to

dig a ditch for a new water line for Respondent’s house.

35. Respondent told Phillips he had the Town m anager’s

permission to use Town equipment at his house.

36. The Town m anager, however, had not given Respondent

his permission. Jim Gallagher, who was the t own manager while

Respondent was public w orks d irector, testified that he never

gave Respondent permission to use the Town’s tractor, the Town’s

bush - hog, the Town’s backhoe, the Town’s dump truck, the Town’s

mowers, the Town’s Ditch Witch, the Town’s pipe, or the Town’s

pipe fittings.

37. Gallagher further testified that he would have never

given Respondent permission to use Town employees to work on

Respondent’s house while on Town time because, “that would

obviously be a conflict, improper.” When asked why, Gallagher

explained, “Well, it’s an ethical problem. It’s lik e stealing.”

38. When Gallagher, as Town m anager, began investigating

rumors that Respondent had used Town equipment and Town

employees for his personal benefit, Respondent told Phillips to

say that all of the equipment that Respondent used at his ho use

belonged to a local builder known as “Blue.”

39. Phillips also identified some time card entries on his

Town time card authorized by Respondent which resulted in

Phillips being paid by the Town for time periods when he was

actually working at R espondent’s home for Respondent’s personal

benefit. Phillips explained that Respondent was responsible for

“padding” the time cards. Entries made by Respondent on

Phillips’ time cards that did not have punched - in times,

included:

Wednesday, June 23 rd ( 5.5 hours of overtime);

Friday, July 16 th (3.5 hours of overtime);

Saturday, July 31 st (7 hours of overtime); and

Friday, August 6 th (4.75 hours of overtime).

40. The above - listed overtime hours identified by Phillips

on his Town time card as being time “padded” by Respondent for

work done for Respondent’s personal benefit total 9 overtime

hours prior to July 20, 2004, and 11.75 overtime hours

thereafter. The dates are significant because Phillips received

a pay raise on July 20, 2004, raisin g his rate of pay from $9.94

an hour to $11.00 when he was promoted to supervisor.

41. Phillips’ hourly overtime pay rate, derived by

multiplying his regular pay rate by one and a - half times, was

$14.87 an hour prior to July 20, 2004, and $16.50 an hour

thereafter. The product of 9 hours times $14.87/hour is

$133.83, and the product of 11.75 hours times $16.50/hour is

$193.87. The sum of $133.83 and $193.87 is $327.70,

representing a fair approximat ion of amounts Phillips was able

to identify fr om review of his time cards that he was paid by

the Town for hours he was actually working at Respondent’s house

for Respondent’s personal benefit.

42. When he found out that Respondent was padding Mr.

Phillips’ time cards, Phillips told Respondent i t was not right.

Respondent responded by telling Mr. Phillips, “Don’t worry about

it.” 3/

43. As noted above, in addition to Town employee labor

that Respondent received which the Town paid, Respondent also

received free use of the Town’s equipment . Evidence of the

daily rental value of the Town’s equipment utilized by

Respondent for his personal benefit was provided by Michael

Bennett, who has been employed in inside sales by Rental Service

Corporation (“RSC”), and has provided quotes for RSC equi pment

rentals for the past ten years in the nearby City of Winter

Haven, Florida. Bennett explained that equipment rental prices

applicable in 2004 were approximately 3 percent less than

today’s prices. Bennett further explained that his company does

not rent equipment for less than a one - day minimum, and that the

one - day minimum rental requirement is pretty standard in the

industry. The one - day rental prices (expressed in both today’s

prices and discounted 3 percent for 2004 rates) for the type of

Town’ s equipment utilized by Respondent, or its equivalent,

quoted by Bennett are as follows:

Type of 2006 Daily 2004

Daily Rate

Equipment Rental Rate

(Discounted 3%)

John Deere 310 Backhoe $ 268.00 $259.96

Mower Attachment

For Trac tor - 6 ft. 82.00 79.54

Tractor, No Loader 31 - 70 HP 194.00 188.18

Dump Truck - 14 - 16 ft. 255.00 247.35

Trencher - W/B

12 - 13 HP - Hydrostatic 161.00 156.17

Utility Trailer -

Open Bed - 6 x 12 37.00 35.89

Mower 80.00 77.60

44. Evidence indicates that the Town’s John Deer e tractor

and the attached Town’s bush - hog mower were used one time at

Respondent’s property for Respondent’s personal benefit.

Therefore, t he total daily rental value for Respondent’s use of

that equipment in 2004 was approximately $188.18 $79.54 =

$267.72.

45. Lauver testified that the Town’s backhoe was used at

Respondent’s property on two separate occasions, so the total

2004 equip ment rental value for Respondent’s use of that

equipment was $259.96 x 2 = $519.92.

46. The Town’s dump truck was used for Respondent’s

benefit only once, so the 2004 rental value of that equipment

was $247.35.

47. The Town’s D itch W itch was al so used once, so the 2004

equipment rental value for that was $156.17.

48. Lauver used the Town’s mowers twice to mow

Respondent’s lawn, and Phillips used them once. Therefore the

2004 equipment rental value to Respondent for use of the mowers

was $ 79.54 x 3 = $238.62.

49. The Town’s trailers were used for Respondent’s benefit

on the three occasions for transport of the Town’s mowers to

Respondent’s property. Thus, the 2004 rental value for use of

the trailers w as $35.89 x 3 = $107.67.

50 . Using the above figures based upon the clear and

convincing evidence, the approximate total value that Respondent

received as a result of the use of Town’s equipment for his

personal benefit, based upon 2004 rental prices, 4/ was $267.72

$519.92 $247 .35 $156.17 $238.62 $107.67 = $1,537.45.

51. The value of Lauver’s time paid by the Town ($616.20),

plus Phillips’ time ($327.70), plus the equipment rental value

($1,537.45), equals $2,481.35 of value , which is supported by

competent substanti al evidence and represents a fair approximate

of the special benefit in monetary terms that Respondent

received by his actions of directing his employees to use their

time and Town equipment, while they were being paid by the Town,

for Respondent’s persona l benefit.

52. Respondent’s actions were contrary to Town policies

that he knew about, or should have known about, by virtue of his

review and access to the Town’s Personnel Rules & Regulations

manual. Respondent knew his actions were wrong but he d id it

time and time again for his personal benefit in a manner that

was inconsistent with Town policy, and the Code of Ethics.

Respondent’s misrepresentation that he had permission to use the

Town’s equipment when he did not, as well as his hand - written

c hanges to Town time cards, is evidence of his intent to act in

a manner inconsistent with his public duties for his own

personal benefit.

CONCLUSIONS OF LAW

53. The Division of Administrative Hearings has

jurisdiction over the parties and the subjec t matter of this

proceeding. § 120.57(1), Fla. Stat.

54. Section 112.322, Florida Statutes, and Florida

Administrative Code Rule 34 - 5.0015, authorize the Commission on

Ethics to conduct investigations and to make public reports on

complaints concern ing violations of Part III, Chapter 112,

Florida Statutes (the Code of Ethics for Public Officers and

Employees).

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

the contrary, is on the party asserting the affirmative of the

issue of the pro ceedings. 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 proceeding, it is the Commission,

through its Advocate , that is asserting the affirmative: that

Respondent violated Section 112.313(6), Florida Statutes. The

Commission on Ethics proceedings that seek recommended penalties

against a public officer or employee require proof of the

alleged violation(s) by cle ar and convincing evidence. See

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

1997). Therefore, the burden of establishing by clear and

convincing evidence the elements of Respondent’s violations is

on the Commission.

56. As noted by the Supreme Court of Florida:

[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. 4 th 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 .

57. Section 112.313(6), Florida Statutes, provides:

MISUSE OF PUBLIC POSITION. – No public

officer, employee of an agency, or local

government atto rney 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 o thers. This section

shall not be construed to conflict with s.

104.31.

58. The term "corruptly" is defined by Section 112.312(9),

Florida Statutes, as follows:

"Corruptly" means done with a wrongful

intent and for the purpose of obtaining, or

compen sating 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.

59. In order for it to be concluded that the Respondent

violated Sec tion 112.313(6), Florida Statutes, the Advocate must

establish the following elements:

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 r esources 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. R espondent must have acted

corruptly, that i s, 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.

60. The first element required to show a violat ion of

Section 112.313(6), Florida Statutes, was met by the proof that

Respondent served as Public Works Director for the Town of

Dundee in from April 7, 2004 until October 11, 2004. As such,

Respondent was an employee of an “agency” as that term is

defin ed in the Code of Ethics, 5/ and subject to the requirements

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

public officers and employees, for his acts and omissions during

his tenure as Public Works Director for the Town of Dundee. See

§§ 112.311(6), 6/ and 112.313(6), Fla. Stat.

61. It must also be shown that Respondent used or

attempted to use his public position or property or resources

within his trust. 7/ The evidence on this point is clear.

Respondent not only attempted to use his position or property or

resources within his trust, but actually used his authority as

p ublic w orks d irector over both Lauver and Phillips to direct

them to perform tasks while on the Town’s clock and to use Town

equipment for Respondent’s personal be nefit. The evidence also

convincingly established that Respondent used the authority of

his position as p ublic w orks d irector over his employees ' time

cards 8/ to make entries or give approvals to times on Lauver’s

and Phillips’ Town time cards when they w ere actually working on

Respondent’s personal tasks for Respondent’s special benefit.

In sum, the evidence clearly established that Respondent misused

his public position, as well as public property and resources

within his trust, to obtain a personal ben efit.

62. The evidence also clearly demonstrated that Respondent

used his position and property and resources within his trust to

secure a special privilege, benefit or exemption for himself.

Respondent received numerous hours of work from Town’s employees

and the use of Town equipment and property to accomplish tasks

for Respondent’s personal benefit, including bush - hogging,

mowing, demolition, hauling, trenching, water - line repair,

pressure washing, plastering and painting. All of these tasks

we re accomplished at the Town’s expense, with little or no cost

to Respondent, resulting in a special benefit to Respondent.

63. Finally, it must be shown that Respondent acted with

“corrupt intent.” See §§ 112.313(6) and 112.312(9), Fla. Stat.

Given the Town’s policies, Respondent’s access to those

policies, and warnings he received, Respondent clearly knew what

he was doing was wrong. Nevertheless, he acted on numerous

occasions to use Town employees and equipment in a manner

inconsistent with Town poli cy, common sense, and the Code of

Ethics for his personal benefit. Respondent’s wrongful intent

was further demonstrated by his misrepresentation that he had

permission to use the Town’s equipment, as well as his

deliberate use of the authority of his pos ition in a manner

inconsistent with his public duties to change and approve Town

employee cards so that Town employees would be paid by the Town

for actually performing tasks for Respondent’s personal benefit.

Given the evidence presented in this case, th ere can be no doubt

that Respondent acted with the requisite corrupt intent.

64. In conclusion , the clear and convincing evidence

presented at the final hearing established each of the requisite

elements to prove that: (1) Respondent, as p ublic w orks

d irector for the Town of Dundee, violated Section 112.313(6),

Florida Statutes, by using Town employees to work on

Respondent’s home at the Town’s expense ; and (2) Respondent, as

p ublic w orks d irector for the Town of Dundee, violated Section

112.313(6), Flo rida Statutes, by using or allowing others to use

Town vehicles, equipment, and/or materials for Respondent’s

personal benefit.

PENALTY

65. As Respondent is no longer serving in a public

capacity, the penalties that can be imposed for Respondent’s

violation include: public censure, reprimand, a civil penalty

not to exceed $10,000, and restitution of any pecuniary benefits

he received as a result of his violations. § 112.317, Fla.

Stat. Given the nature and volit ion of Respondent’s acts for

his personal benefit, his knowledge that his actions were wrong,

and his deliberate misrepresentations, it is appropriate to

enter a final order with a public censure, reprimand and the

maximum civil penalty of $10,000 for each of his two violations,

for a total statutory civil penalty of $20,000.

See § 112.317(1)(b)6., Fla. Stat.

66. In addition to the statutory penalty, it is

appropriate for Respondent to pay restitution in the amount of

value he received from his mis use of his position, and resources

within his trust, including Town employees and equipment.

See § 112.317(1)(b) 7., Fla. Stat. S ee also In re: Kenton , 13

F.A.L.R. 1295, 1319 - 1322 (Ethics 1991) (appropriateness of

restitution). As Respondent r eceived a t least $2,481.35 of

value in terms of his use of Town employee time paid by the Town

and the fair rental value of the Town equipment he used for his

personal benefit, it is appropriate that, in addition to a

$10,000 statutory civil penalty for each offens e, Respondent pay

restitution in the amount of $2,481.35.

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, Veerappan “Chuck” Chuckali ngam, a/k/a

Chuck Chuckalingum, 9/ committed two violations of Section

112.313(6), Florida Statutes, and imposing a civil penalty of

$10,000 for each violation, plus restitution in the amount of

$2,481.35, together with a public censure and reprimand.

DONE AND ENTERED this 10 th day of October , 2006 , in

Tallahassee, Leon County, Florida.

S

DON W. DAVIS

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675 SUNCOM 278 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 10 th day of October , 2006.

ENDNOTES

1/ At the final hearing, the Advocate asked th at Respondent’s

true name be reflected in the Recommended Order and evidence was

introduced showing that Respondent’s actual name is Veerappan

Chockalingam [note the spelling of the last name ends in g a m as

opposed to g u m] and that his nickname is “Chuck.” Transcript,

p. 5; Exh. A - 8, p. 4 [1st page of Application for Employment];

Exh. A - 4, p. 12 [Gallagher]. Given that, an accurate recitation

of Respondent’s name would be: Veerappan “Chuck” Chockalingam.

2/ All references to the Town of Dundee’s Personn el Rules &

Regulations manual throughout this Recommended Order are to the

manual in effect during Respondent’s tenure as the Town’s Public

Works Director.

3 / Phillips knew that doing personal things for Respondent on

Town time was wrong. As Phillips a dvised in his deposition,

“That’s against anybody’s policy.” Exh. A - 2, p. 45 [Phillips].

A separate Ethics action was brought against Phillips for his

role in working for Respondent during Town time and allowing use

of Town equipment for Respondent’s (as opposed to Phillips’ own)

personal benefit. Phillips settled his case by admitting to his

violations of the Code of Ethics and entering into a stipulation

wherein he agreed to public censure and reprimand and to pay a

civil penalty in the sum of $2,500. Exhs. A - 11 & A - 12.

4 / Usage is made of the figures set forth in previous Findings

of Fact, supra . These are conservative figures, as the rental

rates do not reflect the Environmental recovery fee, LDW

Assurance or sales tax reflected on the RSC quote. See Exh. A -

2, attachment 1.

5 / Section 112.312(2), Florida Statutes, provides:

“Agency” means any state, regional, county, local, or

municipal government entity of this state, whether

executive, judicial, or legislative; any department,

division, bureau , commission, authority, or political

subdivision of this state therein; or any public school,

community college, or state university.

6 / Section 112.311(6), Florida Statutes, provides in part:

Such officers and employees are bound to observe, in their

official acts, the highest standards of ethics consistent

with this code and the advisory opinions rendered with

respect hereto regardless of personal considerations,

recognizing that promoting the public interest and

maintaining the respect of the people in their government

must be of foremost concern.

7 / All that is required is an attempt to use one’s public

position or any property or resources within one’s trust to

secure a special privilege, benefit, or exemption. See §

112.313(6), Fla. Stat.

8 / Se e § 112.313(6), Fla . Stat . (prohibits attempt to use . . .

“official position to secure a special privilege, benefit, or

exemption for himself, herself, or others”); cf . Tenney v.

State Commission on Ethics , 395 So. 2d 1244, 1246 (Fla. 2 nd DCA

1981)(unnec essary for legislature to “specifically list every

‘special privilege, benefit, or exemption’ it wished to prevent

a public officer from securing”).

9 / Note that the name used in this Recommendation is different

that that used in the style of the case an d is used herein as

consistent with the evidence presented in this case. See

footnote 1, supra .

COPIES FURNISHED :

James H. Peterson, III, Esquire

Office of the Attorney General

The Capitol, Plaza Level 01

Tallahassee, Florida 32399 - 1050

Chuck C hockalingum

23 Homestead Avenue

Westhampton Beach, New York 11978

Kaye Starling, Agency Clerk

Florida Commission on Ethics

Post Office Drawer 15709

Tallahassee, Florida 32317 - 5709

Bonnie J. Williams, Executive Director

Florida Commission on Ethics

Post Office Drawer 15709

Tallahassee, Florida 32319 - 5709

Philip C. Claypool, General Counsel

Florida Commission on Ethics

Post Office Drawer 15709

Tallahassee, Florida 32319 - 5709

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit wr itten 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.