07-000321EC In Re: Rudolph &Quot;Rudy&Quot; Bradley vs. * Status: Closed Recommended Order on Monday, June 11, 2007.

Summary: Respondent`s failure to place an ex parte communication on the record violates Section 350.042, Florida Statutes, and requires the imposition of a $5,000 civil penalty.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

IN RE: RUDOLPH “RUDY” BRADLEY , ) Case No. 07 - 0321EC

)

Respondent . )

)

RECOMMENDED ORDER

Pursuant to notice, Administrative Law Judge Don W. Davis

of th e Division of Administrative Hearings held a final hearing

in the above - styled cause on Thursday, April 5, 2007, in

Tallahassee, Florida.

APPEARANCES

For the Advocate: James H. Peterson II I , Esquire

Office of the Attorney Genera l

The Capitol, Plaza Level 01

Tallahassee, Florida 32399 - 1050

For Respondent: Wilson Jerry Foster, Esquire

Law Offices of Wilson Jerry Foster

1342 Timberla ne Road

Tallahassee, Florida 32312

STATEMENT OF THE ISSUE

The issue for determination is w hether Respondent, as a

member of the Public Service Commission, violated Section

350.042, Florida Statutes, by knowingly receiving an ex parte

communication from a utility company regarding a matter that was

being considered at a Public Service Commission proceeding and

failing to place the communication on the record within 15 days

of its receipt.

PRELIMINARY STATEMENT

On April 26, 20 06, the Florida Commission on Ethics issued

an order finding probable cause to believe that Respondent,

Rudolph “Rudy” Bradley, as a member of the Public Service

Commission, violated Section 350.042, Florida Statutes. The

case was fo rwarded to the Division of Administrative Hearings on

January 17, 2007.

At the final hearing, the Advocate called three witnesses:

Respondent (now a former Public Service Commissioner), Veronica

Washington (Respondent’s former secretary at the Public Service

Commission), and Kimberly Griffin (Respondent’s former executive

assistant at the Public Service Commission). The Advocate also

introduced seven exhibits into evidence. Respondent’s counsel

presented testimony of three witnesses: Harold McLean (former

general counsel for the Public Service Commission), Veronica

Washington, and Respondent. Respondent’s counsel also

introduced one exhibit into evidence.

A T ranscript of the hearing was filed on April 24, 2007.

The parties requested and wer e gra nted leave to file P roposed

R ecommended O rders within 30 days of the receipt of transcript.

Both parties filed such orders, which have been reviewed and

utilized in the preparation of this Recommended Order.

FINDINGS OF FACT

1. Respondent served as a member of the Florida Public

Service Commission (PSC) from January 2002 until January 3,

2006.

2. Respondent is subject to the requirements of Chapter

350, Florida Statutes, and Part III, Chapter 112, Florida

Statutes, the Code of Ethics for p ublic officers and employees,

for his acts and omissions during his tenure as a member of the

PSC.

3. Upon taking office in 2002, Respondent was given

training regarding his responsibilities in dealing with ex parte

communications between Commissio ners and parties. As stated by

Respondent, this training “was a continuous discussion.”

4. B ased on that training, Respondent was aware that

Section 350.042, Florida Statutes, provided that should he, as a

Public Service Commissioner, knowingly r eceive an ex parte

communication from a party regarding a docketed matter, he was

obligated to place the communication on the record.

5. October 14, 2002, the PSC held a special agenda

conference to consider Docket No. 990649B - TP, which involved

dete rmining how much Verizon Telephone Company (Verizon) could

charge other companies to lease its network.

6. As Docket No. 990649B - TP involved determining how much

Verizon could charge, it is clear that Verizon was a party to

the matter.

7. Sev eral days prior to the special agenda conference,

Michelle Robinson, who at the time was director of Verizon’s

Florida regulatory affairs, prepared and provided a memorandum

(the “Verizon Memo”) to Respondent’s then chief aide, Kimberly

Griffin, and to the aides of the other PSC Commissioners.

8. The Verizon Memo outlined Verizon’s position regarding

PSC staff recommendations on Docket No. 990649B - TP that were to

be considered at the October 14, 2002, PSC special agenda

conference meeting.

9. The Verizon Memo was from a party regarding a docketed

matter. Although the Verizon Memo does not state at the top

that it was from Verizon, the context of the Verizon Memo shows

that it was from Verizon. In addition, since the document had a

docket nu mber on it, it was evident that it related to a

docketed matter.

10. Both Ms. Robinson and Ms. Griffin understood that the

Verizon Memo would be prohibited ex parte communication should

it be given to Respondent. They also understood that it was

p ermissible under Section 350.042, Florida Statutes, for

Ms. Robinson to share the Verizon Memo with Ms. Griffin because

Ms. Griffin was PSC staff and the ex parte prohibitions of

Section 350.042 did not apply to staff.

11. Veronica Washington, who w as Respondent’s secretary

while Respondent was a Public Service Commissioner, testified

that she would not have let Respondent see the Verizon Memo

“[b]ecause it is ex parte communication because it is regarding

an open docket.”

12. During the PSC special agenda conference held

October 14, 2002, Respondent read into the record, at length,

comments and questions that were verbatim or almost identical to

written statements contained in the Verizon Memo.

13. At the final hearing, Respondent test ified that if he

had known the questions were from the Verizon Memo he would have

filed them on the record, “[b]ecause that’s the statute. That’s

the law.” Respondent also testified that his receipt of the ex

parte communication was not “knowingly” and h e blamed his

receipt of the ex parte communication on his former aide,

Kimberly Griffin. Per Respondent’s testimony, it was

“impossible” for him to have gotten the words he used at the

conference from anyone but Ms Griffin .

14. Respondent’s profes sed lack of knowledge that the

questions and comments came from an interested party is at

variance with the pre - hearing stipulation of the parties, the

testimony of other witnesses and cannot be credited. The

context of the questions and comments indicate that they were

from Verizon or another interested party challenging a staff

recommendation.

15. Additionally, Respondent maintained Ms. Griffin should

have placed the Verizon Memo on the record because she was

supposed to have placed “all written communiqués” on the record.

However, in a previous interview conducted by the Ethics

investigator in connection with this case, Respondent did not

mention this alleged obligation of his staff to place such

things on the record. Further, Section 350.042( 1), Florida

Statutes, establishes that a PSC Commissioner’s staff members do

not have the responsibility of filing written communications

that they (as opposed to Commissioners) receive from interested

parties. Respondent’s former aide, Ms. Griffin, and f ormer

secretary, Ms. Washington, understood that the ex parte

prohibitions of the law did not apply to staff.

16. While maintaining that Ms. Griffin must have given him

the materials recited by him into the record because he normally

met with his ai de prior to PSC meetings to receive materials,

Respondent has no memory of discussing the subject Verizon issue

with Ms. Griffin and testified that he “had no prior knowledge

of” the Verizon M emo.

17. Testimony of Ms. Griffin establishes that, othe r than

technical names or technical information which she would put in

quotes, she would never give verbatim language from regulatory

entities or parties to a PSC Commissioner. Rather, Ms. Griffin

explained, while she would sometimes provide actual verbia ge

from staff recommendations, she would only summarize information

received from regulated entities. Ms. Griffin’s understanding

was that she could receive direct information from a regulatory

lobbyist and act as a “buffer” between regulatory entities an d

Respondent by taking the information and providing it “to the

Commissioner in a way that would make sure we were within ex

parte rules.” She was sure that she did not give a copy of the

Verizon Memo or verbatim information or questions contained in

the Verizon Memo to Respondent.

18. Michelle Robinson, who prepared the Verizon Memo for

Verizon, also denied giving a copy of, or the information

contained in, the Verizon Memo to Respondent.

19. Other than blaming his aide for giving him ex parte

material at a pre - agenda meeting which he claims not to

remember, Respondent has no explanation for the questions and

comments he recited at the October 14, 2002, PSC special agenda

conference. While admitting that the questions and comments

were n ot his own, Respondent never told anyone that they were

not his.

20. Ms. Griffin was in attendance at the October 14, 2002,

special agenda conference. When she heard some of the questions

raised by Respondent regarding Verizon’s position on the is sue,

she was surprised because, based upon what she had read and

studied of the Verizon Memo, Respondent’s comments sounded very

similar to the Verizon Memo.

21. While Ms. Griffin tried to maintain her composure and

did not press the issue during t he agenda conference, afterwards

she asked Respondent where he got the questions and what he was

reading from. Respondent responded that “it was just some

questions” he had come up with to ask.

22. Notwithstanding Respondent’s lack of recall, the

testimony of Ms. Griffin provided direct evidence that

Respondent was evasive when confronted with his comments.

23. In the year following the October 14, 2002 PSC agenda

conference, some of Respondent’s comments, which Respondent now

admits were alm ost identical to those contained in the Verizon

Memo, were quoted and attributed to Respondent in a brief that

Verizon filed in the Supreme Court of Florida. When newspaper

articles came out reporting the incident, Respondent “had no

external reaction.” He did not respond to the newspapers and

never told anyone that the questions and comments were not his

own. He did not give notice to the parties that he had received

the questions and comments, and never placed any document on the

record disclosing the source of those questions and comments.

24. As established by the testimony and the evidence,

Respondent knew at the time that he read the questions and

comments at the PSC meeting that they were from an interested

party to the proceeding.

25 . Respondent knowingly received an ex parte

communication from a utility company regarding a matter that was

being considered at a PS C proceeding , and he failed to place the

communication on the record within 15 days of its receipt.

CONCLUSIONS OF LAW

26. The Division of Administrative Hearings has

jurisdiction over the parties and the subject matter of this

proceeding. § 120.57(1), Fla. Stat.

27. Section 350.042(7)(a), Florida Statutes, provides that

“[i]t shall be the duty of the Commission on Ethics to receive

and investigate sworn complaints of violations of this section

pursuant to the procedures contained in ss. 112.322 - 112.3241.”

In turn, Section 112.322, Florida Statutes, and Florida

Administrative Code Rule 34 - 5.0015, authorize the Co mmission 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).

28. 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); 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 350.042, Florida Statutes.

Commission on Ethics proceedings, which seek recommended

penalti es against a public officer or employee, 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 the elements of Respondent’s violations is

on the Commission.

29. 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 mus t 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

convicti on, without hesitancy, as to the

truth of the allega tions sought to be

established.

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

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

Court of Florida also explained, however , that, although the

“clear and convincing” standard requires more than a

“preponderance of the evidence,” it does not require proof

“beyond and to the exclusion of a reasonable doubt.” Id.

30. Section 350.042, Florida Statutes (2002) , which is

app licable to this proceeding, provides:

350.042 Ex parte communications. —

( 1) A commissioner should accord to every

person who is legally interested in a

proceeding, or the person's lawyer, full

right to be heard according to law, a nd,

except as authorized by law, shall neither

initiate nor consider ex parte

communications concerning the merits,

threat, or offer of reward in any proceeding

other than a proceeding under s. 120.54 or

s. 120.565, workshops, or internal affairs

meetings. No individual shall discuss ex

parte with a commissioner the merits of any

issue that he or she knows will be filed

with the commission within 90 days. The

provisions of this subsection shall not

apply to commission staff.

(2) The provisions of this section shall

not prohibit an individual residential

ratepayer from communicating with a

commissioner, provided that the ratepayer is

representing only himself or herself,

without compensation.

(3) This section shall not apply to oral

communications or discussions in scheduled

and noticed open public meetings of

educational programs or of a conference or

other meeting of an association of

regulatory agencies.

(4) If a commissioner knowingly receives an

ex parte communication relative to a

proceeding other than as set forth in

subsection (1), to which he or she is

assigned, he or she must place on the record

of the proceeding copies of all written

communications received, all written

responses to the communications, and a

memorandum stating the substa nce of all oral

communications received and all oral

responses made, and shall give written

notice to all parties to the communication

that such matters have been placed on the

record. Any party who desires to respond to

an ex parte communication may do s o. The

response must be received by the commission

within 10 days after receiving notice that

the ex parte communication has been placed

on the record. The commissioner may, if he

or she deems it necessary to eliminate the

effect of an ex parte communica tion received

by him or her, withdraw from the proceeding,

in which case the chair shall substitute

another commissioner for the proceeding.

(5) Any individual who makes an ex parte

communication shall submit to the commission

a written statement descr ibing the nature of

such communication, to include the name of

the person making the communication, the

name of the commissioner or commissioners

receiving the communication, copies of all

written communications made, all written

responses to such communic ations, and a

memorandum stating the substance of all oral

communications received and all oral

responses made. The commission shall place

on the record of a proceeding all such

communications.

(6) Any commissioner who knowingly fails to

place on the record any such communications,

in violation of the section, within 15 days

of the date of such communication is subject

to removal and may be assessed a civil

penalty not to exceed $5,000.

(7)(a) It shall be the duty of the

Commission on Ethics to rec eive and

investigate sworn complaints of violations

of this section pursuant to the procedures

contained in ss. 112.322 - 112.3241.

( b) If the Commission on Ethics finds that

there has been a violation of this section

by a public service commissioner, it shall

provide the Governor and the Florida Public

Service Commission Nominating Council with a

report of its findings and recommendations.

The Governor is authorized to enforce the

findings and recommendations of the

Commission on Ethics, pursuant to part III

of chapter 112.

(c) If a commissioner fails or refuses to

pay the Commission on Ethics any civil

penalties assessed pursuant to the

provisions of this section, the Commission

on Ethics may bring an action in any circuit

court to enforce such penal ty.

31. Taking elements derived from the above - quoted statute,

it is concluded that the Respondent violated Section 350.042 ,

Florida Statutes (2002), in that Respondent was a Public Service

Commissioner; he knowingly received an ex parte communica tion

relative to the merits of an issue in a proceeding to which he

was assigned; and, he knowingly failed to place on the record

that communication within 15 days of the date from his receipt

of such communication.

PENALTY

As Respondent cannot be remove d from his position with the

PSC because he is no longer serving as a Public Service

Commissioner, the remaining penalty that can be imposed for

Respondent’s violation is a civil penalty not to exceed $5,000.

§ 350.042(6), Fla. Stat. (2000). Given the nature of

Respondent’s violation and his failure to take responsibility

for his actions, it is appropriate to enter a final order with

the maximum civil penalty of $5,000.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conc lusions of

Law, it is:

RECOMMENDED that a Final Order and Public Report be entered

finding that Respondent, Rudolph “Rudy” Bradley, violated

Section 350.042, Florida Statutes (2002), and imposing a civil

penalty of $5,000.00.

DONE AND ENTERED this 11 th d ay of June , 2007 , 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 - 967 5 SUNCOM 278 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 11 th day of June , 2007 .

COPIES FURNISHED :

James H. Peterson III, Esquire

Office of the Attorney General

The Cap itol, Plaza Level 01

Tallahassee, Florida 32399 - 1050

Kaye Starling

Florida Commission on Ethics

Post Office Drawer 15709

Tallahassee, Florida 32317 - 5709

Wilson Jerry Foster, Esquire

Law Offices of Wilson Jerry Foster

1342 Timberlane Road, Suite 102 - A

T allahassee, Florida 32312 - 1775

Phillip C. Claypool, General Counsel

Florida Commission on Ethics

Post Office Box Drawer 15709

Tallahassee, Florida 32317 - 5709

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exception s 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.