06-004829EC In Re: Thomas K. Doughty vs. * Status: Closed Recommended Order on Tuesday, August 7, 2007.

Summary: Respondent violated ??112.313(8) and 112.3185(3), Florida Statutes, through manipulation of contracts. Recommend restitution for the contracts, $25,000 in one case and $187,500 in another, plus a total of $20,000 in fines and censure and public reprimand.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

IN RE: THOMAS K. DOUGHTY , ) Case No. 06 - 4829EC

)

Respondent . )

)

RECOMMENDED ORDER

Administrative Law Judge Don W. Davis of the Division of

Administ rative Hearings (DOAH) held a formal hearing in this cause

on May 23 - 24, 2007, in Tallahassee, Florida. The following

appearances were entered:

APPEARANCES

For Advocate: Linzie F. Bogan, Esquire

Senior Assistant Attorney Gene ral

The Capitol, Plaza Level One

Tallahassee, Florida 32399 - 1050

For Respondent: Hayden Dempsey, Esquire

John Londot, Esquire

101 East College Avenue

Tallahassee, Florida 32301

STATEMENT OF THE ISSUE S

The issues for determination are w hether Respondent Thomas

Doughty, a former employee of the University of North Florida,

violated Section 112.313(8), Florida Statutes, by using

in formation not available to members of the general public and

gained advantage by reason of his official position for his

personal benefit or the benefit of his company ISOCORP, and, if

so, what is the appropriate penalty?

Whether Respondent Thomas Dought y, formerly an employee of

the University of North Florida, violated Section 112.3185(3),

Florida Statutes, by holding an employment or contractual

relationship with a business entity in connection with a

contract that he participated personally and substa ntially in

while working as a public employee, and, if so, what is the

appropriate penalty?

PRELIMINARY STATEMENT

On December 7, 2005, the Florida Commission on Ethics

issued an order finding probable cause to believe that

Respondent, Thomas K. Doughty, as a former employee of the

University of North Florida, violated Section 112.313(8),

Florida Statutes, by using information not available to members

of the general public and gained by reason of his official

position for his personal benefit or the benefi t of his company

ISOCORP. The Florida Commission on Ethics also found probable

cause to believe that Respondent violated Section 112.3185(3),

Florida Statutes, by holding an employment or contractual

relationship with a business entity in connection with a

contract where he participated personally and substantially in

the course of his work as a public employee.

On November 30, 2006, the case was forwarded to the

Division of Administrative Hearings. On December 14, 2006, an

Order was entered setting the case for final hearing on

February 21 and 22, 2007 , in Tallahassee, Florida. On

February 5, 2007, the parties filed a stipulated motion for

continuance. On February 6, 2007, an order was issued granting

a continuance and rescheduling the final hearing f or April 3

and 4, 2007 , in Tallahassee, Florida. On March 22, 2007 , the

parties filed a second stipulated motion for continuance. On

March 29, 2007, an order was issued granting a continuance and

rescheduling the final hearing form May 23 and 24, 2007 , i n

Tallahassee, Florida.

At the final hearing, the Advocate called four witnesses,

including Respondent Thomas K. Doughty. Admitted into evidence

were Advocate’s E xhibits A1, A4, A5, A7, A11, A23, A29 (1 page),

A30, A36, A39, A41, A44, A45, A46, A47, A49 , A50 and A51.

Respondent testified on his own behalf and presented

deposition testimony of one other witness. Respondent offered

exhibits R1 and R2 into evidence. Exhibit R1 was admitted into

evidence. Ruling upon the admissibility of Exhibit R2 was

reserved at the final hearing and that exhibit is now rejected.

The parties were granted leave to file proposed recommended

orders more than ten days following the filing of the transcript

of the final hearing. The transcript was filed on June 14,

20 07.

The proposed recommended order of each party has been

reviewed and utilized in the preparation of this Recommended

Order.

References to Florida Statutes are to the 2006 Edition

unless otherwise noted.

FINDINGS OF FACT

1. In January 2001, Respondent Thomas Doughty was hired by

the University of North Florida (UNF) to serve as the Deputy

Director of Information Systems for the Florida Partnership for

School Readiness . 1/ Respondent served in this position from

January 10, 2001 until Ma rch 20, 2002.

2. Respondent’s employment with UNF was funded through a

grant provided to UNF by the Florida Department of Education.

3. In 1999, the Florida Partnership for School Readiness

(The Partnership) was established for purposes of administeri ng

School Readiness programs in the State of Florida. Chap ter 99 -

357 Laws of Florida ( 1999 ) . At its inception the Florida

Partnership for School Readiness was assigned to the Executive

Office of the Governor for administrative purposes.

§ 44.01(4)(a), Fla . Stat . (1999). However, in 2001 the Florida

Partnership for School Readiness was re - located to the Agency

for Workforce Innovation (AWI) for administrative purposes. §

44.01(4)(a), Fla . Stat . (2001) .

4. During Respondent’s employment with The P artnership,

his primary job responsibility was to move forward a program

being developed by and for The Partnership called the Simplified

Point of Entry/Uniform Wait List program. This included helping

to create the legislative budget request for the proj ect,

justifying the project before the State’s technology review work

group, getting funds approved for the procurement document and

hiring the vendor to actually create the simplified point of

entry system. Respondent, on behalf of The Partnership, was

r esponsible for overseeing the development and implementation of

the Simplified Point of Entry/Uniform Wait List Program.

5. Respondent’s job duties as Deputy Director of

Information Systems also included leading the development and

implementation o f the information system(s) used by The

Partnership including, but not limited to, the web - based

simplified point of entry unified waiting list, coordination of

existing systems to ensure a seamless delivery of service,

contacts database, coordinating all data processing activities,

and overseeing the contracts for data management services.

Additionally, Respondent was responsible for reviewing the

technical work of project teams in systems planning studies,

information needs assessments and systems analys is and reviewing

approaches and methods to assess effectiveness in meeting

management objectives. Respondent also advised and assisted The

Partnership’s Executive Director in matters regarding data

management, information systems and computer network

admi nistration issues. Finally, Respondent was responsible for

helping The Partnership to position itself so that the agency

could secure funding through the legislative process for the

development of the school readiness system.

6. Katherine Kamiya s erved as the Executive Director of

The Partnership from July 2001 through February 2004.

7. The Simplified Point of Entry/Unified Wait List Program

was a web - based system that was designed to allow individuals

seeking school readiness services to r egister for all related

services using a single application process.

8. From the time he was hired in January 2001 until

November of 2001 , when Carrie Cole started working with

Respondent at The Partnership, Respondent was the only person

working i n the Partnership’s I nformation and T echnology

D epartment. Carrie Cole only w orked with Respondent until

May 15, 2002 , when she left for maternity leave.

9. On June 14, 2001, approximately five months after

commencing work at The Partnership, Resp ondent and his business

partner Walter Ales formed a computer consulting company named

ISOCORP. According to the Articles of Incorporation ISOCORP was

established to “carry on, conduct, maintain and otherwise

operate a business for technology consulting, sales, service and

other related activities . ” Respondent is a 49 percent

shareholder, vice - president and director of ISOCORP.

10. After incorporating in June 2001, ISOCORP,

Respondent’s company, submitted an application with the Florida

Department of Management Services to become an authorized vendor

with the State of Florida. According to Respondent, ISOCORP,

over the course of several months, submitted information to the

Florida Department of Management Services in an effort to secure

a State Ter m Contract. On November 6, 2001 , Respondent’s

company ISOCORP was issued a S tate T erm C ontract and pursuant to

the said contract was authorized to provide to agencies of the

State of Florida “IT consulting services as well as hardware and

software sales.”

11. Soon after receiving the State Term Contract, but

prior to December 2001 when Respondent informed AWI Executive

Director Katherine Kamiya that he wanted to terminate his

employment, Respondent allegedly met with then Director of the

Commission on Ethics, Bonnie Williams. The purpose of the

meeting, according to Respondent, was to discuss the conflict of

interest provision in ISOCORP’S State Term Contract. Later,

when providing a sworn statement to Ronald Moalli, an

investigator with the Commi ssion on Ethics, Respondent recalled

the following with regard to his purported meeting with Bonnie

Williams:

Mr. Doughty: So I was elated, this is

fantastic, finally we got our State term

contract, we are going to be a real company

that can do business w ith the State. So I

run up there, she puts the document in front

of me and I start initialing it, initialing

it, initialing it. I get a copy of it later

on. I don’t know if they sent it to me a

week later and I started looking through it

and went, oh cr ap, I wonder as a UNF

employee I am considered a State employee.

I don’t know and I don’t want to do any

thing wrong and that is when I came here.

Mr. Moalli: Okay.

Mr. Doughty: I came here and I told

Ms. Williams and I think she has no

recollectio n of this.

Mr. Moalli: She doesn’t, she speaks to a

lot of people.

Mr. Doughty: But it was at the Remington

Green office. I was sitting in her office.

I think she had two chairs, nice comfortable

chairs and I told her the situation. I work

for U NF, I am grant funded by DOE, I am at

the Partnership, we are housed in EOG

[Office of the Governor], we are

transitioning over to AWI and she said,

well, I agree, I don't know where you belong

either, but you should go ahead and file and

I am reiterating, but go ahead and file for

a rule opinion but in the meantime don't do

any business and I think you will be all

right.

Due to the non - corroboration of Respondent’s testimony regarding

Bonnie Williams’ alleged affirmation of his position, that

portion of his testimony is not deemed creditable.

12. In December 2001, Respondent informed Katherine

Kamiya, then Executive Director of The Partnership, about his

desire to terminate his employment with the State so that he

could cultivate his company ISOC ORP.

13. Respondent advised Kamiya that if The Partnership

desired to retain his services, The Partnership would have to

contract with Respondent’s company, ISOCORP. In December 2001

following this discussion with Kamiya, Respondent, on behalf of

his company ISOCORP, submitted to Kamiya the following:

1) An MIS activities list;

2) A potential statement of work;

3) A rate sheet with an approximate cost

for ISOCORP to participate/implement all the

tasks on the statement of work, with the

exce ption of the “School Readiness Childcare

System”;

4) A sample purchase order for work that

was secured by the Governor’s office from

another vendor;

5) An ISOCORP company brochure; and,

6) A copy of the ISOCORP State Term

Contract.

14. R espondent, when submitting the information to Kamiya,

advised that the “information [was] intended as a starting

point.” Respondent submitted the above information to Kamiya

while Respondent continued to serve as the Director of

Information Systems for Th e Partnership and during the time when

The Partnership was attempting to select a vendor for the

Simplified Point of Entry/Unified Wait list program after The

Partnership received “non - responsive” and “excessively” costly

bids for the work from two compani es, Vector and Covansys.

15. The Statement of Work submitted by Respondent to

Kamiya in December 2001 defines the proposed “scope of services”

to be provided by ISOCORP to The Partnership and the cost for

ISOCORP to participate in or implement the enumerated tasks.

The tasks and corresponding hours are as follows:

Task 1 - Simplified Point of Entry –

Consulting services for overseeing,

mentoring and contributing to the

development and implementation of the SPE

(240 hours)

Task 2 - TAPP Data En try System/Reporting –

Consulting services for design and

development of a system for the collection

of Teenage Parent Program participant data

via the web. (250 hours)

Task 3 - Electronic Coalition Plan

Submission System – Consulting services for

the d esign and development of an electronic

coalition plan submission system utilizing

Adobe Acrobat forms (250 hours)

Task 4 - School District Expenditure

Reporting System – Consulting services for

the design and development of a system for

the collection o f school district

expenditure data based on the FA - 399 form

(250 hours)

Task 5 - School Readiness Website –

Consulting services (creative design, web

programming) for the design, development and

implementation of a new School Readiness

website. (220 ho urs)

Task 6 - School Readiness System –

Consulting services for overseeing and

contributing to the documentation, design,

development and implementation of the

“School Readiness Childcare System.”

16. In February 2002, the company Vector was selected as

the vendor for the Simplified Point of Entry/Unified Wait List

program. On February 27, 2002 , Respondent tendered his

resignation to the University of North Florida and The

Partnership. Respondent advised in his letter of resignation

that he “learned a great deal” while working at The Partnership.

March 20, 2002 , was the effective date for Respondent’s

resignation.

17. On Monday, March 4, 2002 , Respondent sent an e - mail to

Jeff Ling at MGT of America, Inc., providing therein

“informa tion to help put together a proposal for the “School

Readiness Data System.” Included with the information submitted

by Respondent to Ling was the Statement of Work for the

simplified Point of Entry and an explanatory note advising that

“the SPE [simplifi ed point of entry] will serve as the front

door to School Readiness Services.”

18. On March 13, 2002, exactly seven days before the

effective date of Respondent’s resignation, ISOCORP,

Respondent’s company, submitted to The Partnership a proposal

f or Respondent, through ISOCORP, to serve as technical lead on

the Simplified Point of Entry/Unified Wait List project and

coordinate and assist with The Partnership’s transition from the

Executive Office of the Governor to the Agency for Workforce

Innovati on (first proposal). While working at The Partnership

through his employment with the University of North Florida,

Respondent’s job duties included serving as technical lead on

the Simplified Point of Entry/Unified Wait List project and

coordinating and a ssisting with The Partnership’s transition

from the Executive Office of the Governor to the Agency for

Workforce Innovation.

19. On March 13, 2002 ISOCORP submitted a proposal (second

proposal) to The Partnership “to assist with the design of the

r equirements and procurement of a new, centralized school

readiness system that would be used to administer all school

readiness programs.” The second proposal also provides that

“ISOCORP is proposing to assist with the creation of the new

requirement docu ment for this centralized system and write the

advanced planning document to assist the Partnership with this

process.” The proposed cost for ISOCORP to perform the proposed

services was $187,500. The second proposal included the

following subtitled sect ions: Overview; Current Situation,

Understanding of Primary Objectives, Work Tasks, Deliverables,

Time Lines, Professional Staff, and Proposed Cost. The second

proposal notes further that,

The Partnership is moving forward with the

development of a “scal ed down” version of

the original [Simplified Point of Entry]

that can be used as a “front door” to the

new school readiness system simplifying the

process for parents/guardians. The

Partnership is now in the process of

formulating the “backend” or data wa rehouse

component of the system.

20. Additionally, the second proposal notes that one of

the primary objectives for the work to be performed by ISOCORP

was to “Draft an advanced planning document and all supporting

documentation for a future procu rement” related to the school

readiness system. In explaining the second proposal, Respondent

testified as follows,

There is a -- there is a company right now

that has a system called, I think it is

called EFS. This system was used and still

is used, but initially it was used to manage

the financial and the case management.

Basically to implement the program for, it

is not Pre - K, but it is one of the programs

that was under the umbrella of School

Readiness that came from DCF. So basically

it was a progr am that they tracked, it is

what they used to operate that program and

they had all, you know, again, contracting,

case management, financial information,

billing, everything was in that system.

Well, when all these programs came into the

Partnership, tha t system, at least it was

that at the time, couldn't support all of

these other programs because they are so

different and they all pretty much had their

own systems. The Partnership because they

only spent 1.2 I guess on the simplified

point of entry had some extra money that

they wanted to spend on a study to determine

what a dream system would be in order to

create a system that could administer all of

those programs, including the case

management and the financial components and

everything, it is a big undertaking. And so

that contract was to go statewide and hold

stakeholder meetings. We had stakeholder

meetings in Tampa, Jacksonville, four or

five locations throughout the state. We

invited all the stakeholders, the central

agency, the School Readin ess, any other

interested parties could come, give us their

input and, of course, we recorded it. We

basically had -- and ultimately compiled all

of that information along with the

interviews that we held with the Governor's

Office and the Legislature and all the other

stakeholders here, you know, at the

different State agencies that were involved.

So what that was essentially a study that

would come back with different deliverables

that ultimately would be this is pretty much

what these stakeholders are saying would be

encompassed in the dream system. . .

21. Although both of the March 13, 2002 , proposals from

ISOCORP were signed by Walter Ales, Respondent’s business

partner at ISOCORP, Respondent and Ales jointly prepared the

proposals.

2 2. On April 4, 2002, David Slusher, then Deputy Director

of Finance and Administration for The Partnership, submitted to

AWI two requests for purchase orders. The first request, in the

amount of $25,000.00, sought to have a purchase order issued to

ISOCO RP for the purpose of “continuing [to] have Tom Doughty

work as technical lead on the SPE project [that was then]

underway with Vector.” The second request, in the amount of

$187,500.00, sought to have a purchase order issued to ISOCORP

so that the compan y could assist The Partnership in the design

of the requirements and procurement of a new, centralized school

readiness system that would be used to administer all school

readiness programs in Florida. Slusher submitted non -

competitive bid/sole source jus tifications for both purchase

order requests. The requests for purchase orders were submitted

by Slusher approximately two weeks after the effective date of

Respondent’s resignation, but staff of The Partnership knew

several weeks prior to Respondent’s re signation that Respondent,

through ISOCORP, would continue providing services to The

Partnership.

23. The non - competitive bid/sole source justification for

the $25,000.00 purchase order request provides as follows.

We desire to contract with ISOCOR P for the

services of Mr. Thomas Doughty to act as

technical lead on the SPE/UWL project and to

coordinate and assist with the IT support

transition from EOG to AWI. Mr. Thomas

Doughty has unique experience in the area of

the Simplified Point of Entry/Uni fied

Waiting List (SPE/UWL) development and

implementation as he was the Deputy Director

of Management Information systems for the

Partnership from January, 2001 until

March 20, 2002. Mr. Doughty’s experience in

the development of the RFP for the SPE/UWL

system and his particular knowledge of the

requirements of the Partnership’s technology

and data systems needs is crucial to enable

the completion of this project within the

currently established deadline.

This project has been developed over several

ye ars and the current status of the project

requires the ongoing involvement, guidance,

and insights of Mr. Doughty at this critical

time to ensure the project completes on time

and that the delivered system meets the

needs of [the] Partnership and the progr ams

it administers.

24. The non - competitive bid/sole source justification for

the $187,500.00 purchase order request provides as follows.

We desire to contract with ISOCORP to assist

the Partnership in the design of the

requirements and procuremen t of a new,

centralized school readiness system that

would be used to administer all school

readiness programs in Florida. ISOCORP is a

State Terms Contractor for these services

and has a staff member with unique knowledge

and experience in the technologi cal and data

systems needs of the Partnership and all of

the stakeholders in the school readiness

programs throughout the state. Mr. Thomas

Doughty was the Deputy Director for

Management Information Systems for the

Partnership from January, 2001 through

M arch 20, 2002. During that time he played

a key role in the efforts to bring the

Simplified Point of Entry/Unified Waiting

List project to a point where it will be

implemented by the end of the current fiscal

year. During his tenure at the Partnership

Mr . Doughty was a primary participant in the

numerous discussions and meetings that led

to the envisioning of this new school

readiness system.

Mr. Doughty is reflected as a Co - Project

Manager in the ISOCORP proposal related to

this procurement action and his ability to

incorporate his [sic] firs - hand

understanding of the complexities inherent

in the diversity of existing technology and

data systems and the necessity for having a

single, comprehensive system to serve the

current, and future, needs of the o verall

school readiness program cannot be

overstated. Given this project has to be

completed by June 30, 2002 due to the nature

of the funds that are financing this

project, there is no other State Terms

Contractor that could take on a project of

this sco pe and be able to realistically meet

the specified delivery timeline.

25. Upon inquiry about the Simplified Point of Entry

Project by the investigator for the Commission on Ethics,

Respondent stated the following in response to his personal

counse l’s questions.

MR. DOUGHTY: Well, this project used to

live over at Department of Education. This

is the simplified point of entry.

MR. DEMPSEY: Right.

MR. DOUGHTY: It used to live at the

Department of Education and they never got

it off the grou nd. And so, you know, year

after year they kept trying to do something

and then, you know, finally it came to the

Partnership and they had it for a year or so

and they needed to get it off the ground.

MR. DEMPSEY: But she wanted you to stay

because yo u had a specialized knowledge

about this whole process.

MR. DOUGHTY: Right, right.

MR. DEMPSEY: So I don't think it was a

position that you could just switch people

in and out because there was not anybody

else with that sort of knowledge; is that

right?

MR. DOUGHTY: That is correct.

(A46, pgs. 41, 42)

26. Kamiya, former Executive Director of The Partnership,

confirmed that she wanted Respondent to continue to provide

services to The Partnership because of Respondent’s unique and

special ized knowledge about the Simplified Point of

Entry/Uniform Wait List project and the developing school

readiness system.

27. On April 5, 2002, AWI issued to ISOCORP a purchase

order in the amount of $25,000.00 so that Respondent, through

his compan y ISOCORP, could serve as technical lead on the

Simplified Point of Entry/Uniform Wait List project and assist

The Partnership in transitioning from the Executive office of

the Governor to the Agency for Workforce Innovation.

28. On April 8, 2002 , AWI issued to ISOCORP a purchase

order in the amount of $187,500.00 so that ISOCORP could assist

in the design of the requirements of and procurement of a school

readiness system.

29. The $25,000.00 and $187,500.00 purchase orders were

ISOCORP’S fi rst contracts as a corporation.

30. Prior to working at The Partnership, Respondent had

never worked in a position related to the Simplified Point of

Entry/Uniform Wait List project.

CONCLUSIONS OF LAW

31. The Division of Administrative Hea rings has

jurisdiction over the parties to, and the subject matter of

these proceedings. §§ 120.56(9) and 120.57(1), Fla. Stat.

32. 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 concerning violations of Part III, Chapter 112,

Florida Statutes (the Code of Ethics for Public Officers and

Employees).

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

the c ontrary, 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); 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

Thomas K. Doughty violated Sections 112.313(8) and 112.3185(3),

Florida Statutes. Commission on Ethics proceedings seeking

recommended pena lties 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. 1 st DCA

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

convincing evidence t he elements of Respondent’s violations is

on the Commission.

34. 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 hesi tancy, 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, althoug h

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.

35. Section 112.313(8), Florida Statutes, provides as

follows:

DISCLOSURE OR USE OF CERTAIN INFORMATION.

No public officer, employee of an agency, or

local government attorney shall disclose or

use information not available to members of

the general public and gained by reason of

his or her official posit ion for his or her

personal gain or benefit or for the personal

gain or benefit of any other person or

business entity.

36. In order to establish a violation of Section

112.313(8), Florida Statutes, the following elements must be

proven.

1. The Re spondent must have been a public

officer or employee.

2. The Respondent must have disclosed or

used information which was:

a) not available to members of the general

public and

b) gained by reason of the Respondent's

official position.

3. Such inf ormation must have been

disclosed or used with an intent to secure

personal gain or benefit for the Respondent

or another person or business entity.

37. The Advocate has established by clear and convincing

proof that Respondent, Thomas Doughty, at all times material to

this matter, was a public employee as contemplated by Section

112.313(8), Florida Statutes. The first element has been

established.

38. The Advocate must next prove by clear and convincing

evidence that Respondent disclosed or used information which was

not available to members of the general public and gained by

reason of Respondent’s official position.

39. The L egislature elected not to define “information” as

that term is used in Section 112.313(8), Florida Statutes. It

is well established that “[w]ith regard to conclusions of law,

Florida Courts defer to an agency’s interpretation of statutes

and rules the agency is charged with implementing and enforcing,

unless they are clearly erroneous or cont rary to law.” Hobbs v.

Fla. Dept. of Transp. , 831 So. 2d 745, 747 (Fla. 5 th DCA 2002).

40. The Commission on Ethics, in advisory opinion 04 - 15

noted that “[t]he American Heritage Dictionary, Second College

Edition, defines the term “information” a s being “knowledge

derived from study, experience, or instruction.” The relevant

“information” in the present case is the unique knowledge and

experience that Respondent garnered while working as Information

Systems Director at The Partnership. On two oc casions, once

when justifying the $25,000.00 dollar purchase order, and again

when justifying the $187,500.00 purchase order, The Partnership

clearly and unequivocally stated that it was necessary to hire

ISOCORP, Respondent’s company, through a non - compet itive bid

process because of Respondent’s specialized knowledge and

expertise as to matters related to the Simplified Point of

Entry/Unified Wait List program. Respondent’s specialized

knowledge and expertise as to matters related to the Simplified

Point of Entry/Unified Wait List project, including the school

readiness system and all aspects thereof, were acquired by

Respondent through his position as Director of Information

Systems at The Partnership. The unique personal knowledge and

experiences that Respondent garnered while working at The

Partnership concerned matters unique to Respondent and these

matters were therefore not available to members of the general

public. Respondent’s unique knowledge and experience resulted

in his company ISOCORP being awarded contracts valued in excess

of $212,000.00 . The clear and convincing evidence establishes

that Respondent, as to the Simplified Point of Entry/Uniform

Wait List project, possessed information not available to the

general public that he gained by r eason of his employment at The

Partnership.

41. Next, the Advocate must prove by clear and convincing

evidence that Respondent disclosed or used the information with

intent to secure personal gain or benefit for the Respondent or

another person or bu siness entity. The evidence presented at

the final hearing clearly and convincingly demonstrates that

Respondent, within five months of commencing work at The

Partnership, filed Articles of Incorporation for ISOCORP.

Shortly thereafter Respondent initiat ed paperwork with the

Department of Management Services to secure a State Term

Contract for ISOCORP. Upon receipt of the State Term Contract

in November 2001, Respondent said he met with the Executive

Director for the Commission on Ethics as a result of

R espondent’s concern about the conflict of interest provision

contained in the State Term Contract. Within approximately a

month of that alleged meeting with the Executive Director of the

Commission on Ethics, Respondent, while still serving as the

Directo r of Information Systems for The Partnership, engaged in

discussions with Katherine Kamiya about the ability of ISOCORP

to provide a myriad of computer services to The Partnership.

Respondent's concern about the conflict of interest provision in

the State Term Contract evinces his intent to do business

through ISOCORP with the very agencies, including The

Partnership, that he worked closely with while serving as the

Director of Information Systems for The Partnership. The

Advocate has established by clear and convincing evidence that

Respondent intended to use the information that he acquired

while working at The Partnership for the personal gain of

himself or his company ISOCORP.

42. The Advocate has also established by clear and

convincing eviden ce that Respondent violated Section 112.313(8),

Florida Statutes, by using information not available to members

of the general public and gained by reason of his official

position for his personal benefit or the benefit of his company

ISOCORP.

43. Section 112.3185(3), Florida Statutes, provides as

follows:

No agency employee shall, after retirement

or termination, have or hold any employment

or contractual relationship with any

business entity other than an agency in

connection w ith any contract in which the

agency employee participated personally and

substantially through decision, approval,

disapproval, recommendation, rendering of

advice, or investigation while an officer or

employee.

44. In order to establish a violat ion of Section

112.3185(3), Florida Statutes, the following elements must be

proved:

1. The Respondent must have been an

employee of the executive or judicial branch

of state government.

2. After retirement or termination from

public service, the Respo ndent must have

held an employment or contractual

relationship with a business entity.

3. Such employment or contractual

relationship must have been in connection

with a contract in which the Respondent

participated personally and substantially

through decision, approval, disapproval,

recommendation, rendering of advice or

investigation while a officer or employee of

the executive or judicial branch of state

government.

45. Advocate has established by clear and convincing proof

that Thomas Dought y, at all times material to this matter, was

an employee of an agency of state government as contemplated by

Section 112.3185(3), Florida Statutes. 2/ The first element has

been established.

46. Next, the Advocate must prove by clear and convincing

e vidence that Respondent, after termination from public service,

held an employment or contractual relationship with a business

entity. Section 112.312(5), Florida Statutes, defines a

“business entity” to mean “any corporation, partnership, limited

partner ship, proprietorship, firm, enterprise, franchise,

association, self - employed individual, or trust, whether

fictitiously named or not, doing business in this state. ”

Respondent’s company ISOCORP is a business entity and

Respondent, as an employee and dire ctor of ISOCORP, had a

contractual relationship with the company. The Advocate has

established by clear and convincing proof the second element

necessary to establish a violation of Section 112.3185(3),

Florida Statutes.

47. The final element requir es that Advocate prove by

clear and convincing evidence that Respondent’s employment or

contractual relationship with ISOCORP must have been in

connection with a contract in which Respondent participated

personally and substantially through decision, appro val,

disapproval, recommendation, rendering of advice or

investigation while an employee of the executive branch of state

government. The Commission on Ethics, in interpreting this

statute, has limited the scope of this statutory provision to

activities r elated to the procurement process. Commission on

Ethics Advisory Opinion 83 - 8.

48. For purposes of implementing the prohibitions

contained in Section 112.3185(3), Florida Statutes, the

Commission on Ethics, in Advisory Opinions 00 - 6 and 01 - 6, noted

the following:

To participate ‘personally’ means directly,

and includes the participation of a

subordinate when actually directed by the

former Government employee in the matter.

‘Substantially,’ means that the employee’s

involvement must be of significan ce to the

matter, or form a basis for a reasonable

appearance of such significance. It

requires more than official responsibility,

knowledge, perfunctory involvement, or

involvement on an administrative or

peripheral issue. A finding of

substantiality sh ould be based not only on

the effort devoted to a matter, but on the

importance of the effort. While a series of

peripheral involvements may be

insubstantial, the single act of approving

or participation in a critical step may be

substantial. (citing 5 C. F.R. Section

737.5(d)).

49. Respondent's primary job responsibility while working

as the Director of Information Systems for The Partnership was

to move forward the Simplified Point of Entry/Unified Wait list

project. While still wearing the hat o f Director of Information

Systems for The Partnership, Respondent, as an employee and

Director of ISOCORP, submitted in December 2001 a proposal to

Katherine Kamiya to have ISOCORP perform a myriad of computer

consulting projects for The Partnership includ ing matters

related to the Simplified Point of Entry and School Readiness

projects. Respondent, in his capacity of Director of

Information Systems for The Partnership, recommended and advised

The Partnership to hire his company ISOCORP. Respondent was

ob viously attempting to serve two masters during a time when he

was being paid to serve only one : The Partnership . Respondent,

in his capacity as Director of Information Systems for The

Partnership, participated personally in the procurement process

relate d to The Partnership’s decision to hire his company

ISOCORP for services provided pursuant to the two purchase

orders at issue.

50. A state employee participates “ substantially, ” through

“decision, approval, disapproval, recommendation, rendering o f

advice or investigation” of a contract, 3/ when that employee’s

involvement in the procurement or development of the contract is

of significance to the matter or forms a basis for a reasonable

appearance of such significance. On at least three occasions

Respondent, while serving as Director of Information Systems for

The Partnership, submitted proposals to The Partnership wherein

he recommended to The Partnership by submitting the ISOCORP

proposals that The Partnership should contract with ISOCORP.

The a ffirmative acts of recommending ISOCORP occurred in

December 2001 when Respondent submitted ISOCORP’s initial

proposal to Kamiya and it occurred twice more on March 13, 2002 ,

when ISOCORP submitted to The Partnership proposals related to

the $25,000.00 and $187,500 proposals , respectively. It cannot

be said under these facts that Respondent’s role in this matter

was either unimportant or peripheral to The Partnership’s

decision to contract with ISOCORP. Respondent’s actions of

recommending ISOCORP for the two purchase orders at issue were

significant factors in The Partnership’s decision to hire

ISOCORP because the only way that The Partnership could secure

Respondent’s services was by contracting with ISOCORP.

Respondent made this point clear to decision makers at The

Partnership. The Advocate has established by clear and

convincing proof the third and final element necessary to

establish a violation of Section 112.3185(3), Florida Statutes.

Respondent violated Section 112.3185(3), Florida Statutes.

REC OMMENDED PENALTY

The Legislature, in the first sentence of the Code of

Ethics for Public Officers and Employees states that “[i]t is

essential to the proper conduct and operation of government that

public officials be independent and impartial and tha t public

office not be used for private gain other than the remuneration

provided by law.” Respondent in the instant case engaged in the

very conduct that the Code of Ethics was enacted to protect

against. Within five months of commencing his employment at The

Partnership , Respondent was laying the foundation to place

ISOCORP in a position to provide computer consulting services to

the agencies that Respondent serviced and frequently interacted

with in his capacity as Director of Information Systems for T he

Partnership.

By his own admission Respondent acknowledged concern when

he saw that the State Term contract that he signed on behalf of

ISOCORP contained a conflict of interest provision. Respondent

testified that he sought the advice of the Exec utive Director of

the Commission on Ethics who told him to request an advisory

opinion from the Commission and refrain from doing business with

the State until the issues surrounding Respondent’s employment

status were clarified. Respondent disregarded th is advice.

Section 112.317, Florida Statutes, authorizes the

Commission on Ethics, in cases involving former public

employees, to order a public censure and reprimand, a civil

penalty not to exceed $10,000.00 for each violation and

restitution of any pecuniary benefits received because of the

violation(s) committed.

B ased on the findings of facts and conclusions of Law, it

is recommended that a civil penalty of $10,000.00 be imposed

against Respondent due to his violation of Section 112.313(8),

Florida Statutes; that a civil penalty of $10,000.00 be imposed

against Respondent due to his violation of Section 112.3185(3),

Florida Statutes; and, that Respondent be publicly censured and

reprimanded.

It is further recommended that Respondent m ake restitution

in the amount of $212,500 to The Partnership, AWI or the

appropriate State agency .

DONE AND ENTERED this 7 th day of August , 2007 , in

Tallahassee, Leon County, Florida.

S

DON W. DAVIS

Administrative Law Jud ge

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 Heari ngs

this 7 th of August , 2007 .

ENDNOTES

1/ When he was initially hired Respondent’s job title was Deputy

Director of Information Services. During the course of

Respondent’s employment his job titled was changed but not his

duties and responsibilities. (A46, pg. 3) Throughout this

Order Respondent, when necessary, will be referred to as the

Deputy Director of Information Services.

2/ Respondent argues that as a former employee of the University

of North Florida he is not included within the definitio n of

“agency employee” as those terms are contemplated by Section

112.3185(3), Florida Statutes. Th i s argument is not persuasive.

3/ Both purchase orders at issue were executed approximately two

weeks after the effective date of Respondent’s resignatio n.

However, Section 112.3185(3), Florida Statutes, applies to

contracts that come into existence either before or after the

employee leaves public employment. See Commission on Ethics

Advisory Opinion 00 - 6 .

COPIES FURNISHED :

Linzie F. Bogan, Esquir e

Advocate for the Florida

Commission on Ethics

Office of the Attorney General

The Capitol, Plaza Level 01

Tallahassee, Florida 32399 - 1050

Hayden R. Dempsey, Esquire

John Londot, Esquire

Greenberg, Traurig, P.A.

101 East College Avenue

Tallahassee, Flo rida 32302

Kaye Starling , Agency Clerk

Florida Commission on Ethics

Post Office Drawer 15709

Tallahassee, Florida 32317 - 5709

Phillip C. Claypool, General Counsel

Florida Commission on Ethics

Post Office Box Drawer 15709

Tallahassee, Florida 32317 - 570 9

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 Or der in this case.