07-000646EC In Re: Charles Dean vs. * Status: Closed Recommended Order on Thursday, January 31, 2008.

Summary: Respondent established that Petitioner Dean violated the statute in the misuse of office, but which was somewhat understandable under circumstances, since it was in anger and he was contrite about it. Recommend a minimal fine.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

IN RE: CHARLES DEAN, ) Case No. 07 - 0646EC

)

Respondent. )

)

RECOMMENDED ORDER

This cause came on for formal proceeding and hearing before

P. Michael Ruff , a duly - designated Administrative Law Judge of

the Division of Administrative Hearings, on July 11 and 12,

2007, in New Smyrna Beach, Florida. The appearances were as

follows:

APPEARANCES

For Petitioner: James H. Peterson, III, Esquire

Office o f the Attorney General

The Capitol, Plaza Level 01

Tallahassee, Florida 32399 - 1050

For Respondent: Maureen Sullivan Christine, Esquire

28 Cordova Street

St. Augustine, Florida 32084

STATEMENT OF THE ISSUE

The issues to be resolve d in this proceeding concern

whether the Respondent, as a member of the City Commission of

Oak Hill, Florida, committed a violation of Section 112.313(6),

Florida Statutes, by allegedly threatening the police chief's

employment status during a verbal alter cation.

PRELIMINARY STATEMENT

This cause arose on October 25, 2006, when an Order was

issued by the Florida Commission on Ethics (Commission) in which

probable cause was found to believe that the Respondent, Charles

Dean, violated Section 112.313(6), Flo rida Statutes, during his

tenure as a member of the City Commission of Oak Hill, Florida.

The case was forwarded to the Division of Administrative

Hearings and the undersigned Administrative Law Judge. A

hearing was then scheduled.

Prior to the final he aring the parties submitted a Pre -

hearing Stipulation containing joint stipulations of fact. The

cause came on for hearing as noticed. At the hearing, the

Commission's advocate (Petitioner) called four witnesses: Carol

Dean, the Respondent's wife, Micha el Ihnkin, a Oak Hill

policeman, and Walter Zalisko, the former Oak Hill Police Chief,

as well as the Respondent. The Petitioner offered 10 pre - marked

exhibits into evidence. The following such exhibits were

received into evidence: Exhibit A - 2 (certifie d copy of Oak

Hill's City Charter), Exhibit A - 3 (photographs A - F), a rough

drawing by the Respondent of the Oak Hill Police Department,

Exhibit A - 4, and Exhibit A - 8 (the City of Oak Hill Personnel

Police Manual). The Petitioner also introduced A - 11 (memo from

Chief Zalisko dated November 10, 2004), Exhibit A - 12 (Volusia

County Sheriff's Office Internal Affairs Document), as

[corroborative hearsay only], Exhibit A - 13 (memo from Michael

Ihnkin dated May 8, 2006) [corroborative hearsay only], Exhibit

A - 14 (le tter to Chief Zalisko from Mr. Dean), and Exhibit A - 15

(a letter from Guy Grasso dated April 21, 2005). The

Respondent's counsel called four witnesses: Michael Ihnkin,

Charles W. Haynes (a customer of C. Dean's Saddle Shop), Guy

Grasso (current Oak Hill Police Chief), and the Respondent. The

Respondent introduced the following Exhibits: R - 1 (survey of

Dean's property), R - 4 (a letter from Michael Ihnkin dated

October 16, 2006) [corroborative hearsay only], and R - 6 (a

photograph of the stop sign and the b ackground). Upon

concluding the proceeding a transcript thereof was ordered and

the parties elected to file proposed recommended orders. An

extension of time for filing proposed recommended orders was

stipulated to by both counsel and Proposed Recommende d Orders

were timely filed November 15, 2007. The Proposed Recommended

Orders have been considered in the rendition of this Recommended

Order.

FINDINGS OF FACT

1. Charles Dean, the Respondent, was elected to the Oak

Hill City Commission in the 2004 elect ion and took office in

January 2005. He is employed as a Senior Manager of Operations

and Management for the Kennedy Space Center and also is a saddle

and harness maker, owning C. Dean's Saddle Shop jointly with his

wife, Carol Dean. As an elected public officer, the Respondent

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

Statutes, which is the Code of Ethics for public officers and

employees with regard to any acts or omissions committed during

his tenure in office.

2. The Petitioner , Ethics Commission, is an agency of the

State of Florida charged with enforcing the provisions related

to ethical standards for public officers and employees embodied

in Part III, Chapter 112, Florida Statutes, and for imposing

sanctions for violations th ereof.

3. The City Commissioners of Oak Hill, including the

Respondent, are elected officials accountable to citizens at

regular elections and are subject to recall as permitted by law

and in accordance with the Oak Hill City Charter. The

Commission also appoints heads of departments from among the

sitting commissioners. The function of the department heads is

to ensure that the department to which they are assigned is

running efficiently in carrying out the Commission's directives.

The Respondent was a ppointed as department head of the solid

waste department. He had no authority over the police

department.

4. According to the Oak Hill City Charter, no individual

commissioner, except the appointed department head for a

particular department, is per mitted to give directives or orders

to any employee, except in cases of emergency.

5. The Respondent, in his testimony, indicated his

awareness of those limitations on his authority as a city

commissioner in his contact with city employees. In his

positi on at the Kennedy Space Center employed by NASA, the

Respondent is a Senior Manager of utilities and supervises some

900 employees. He thus has professional awareness and

experience in dealing with personnel matters such as employee

suspensions, terminati ons and the like.

6. The Complainant, Walter Zalisko, was hired by a

majority vote of the City Commission to be Chief of Police for

the City of Oak Hill. He was hired on July 29, 2004, before the

Respondent's election to the City Commission. He was hi red with

the charge of elevating the professional standing and status of

the City of Oak Hill Police Department.

7. Soon after he took office in January 2005, the

Respondent encountered difficulties in his relationship with

Chief Zalisko. This occurred over the manner in which then

Chief Zalisko handled the suspension and termination of Oak Hill

City Police Department Officer Dee Williams. At a City

Commission meeting on April 18, 2005, the Respondent took issue

with the fact that Chief Zalisko had uni laterally suspended

Officer Williams from her position, without pay, pending an

internal audit, rather than bringing that decision before the

City Commission for a vote. After the Respondent raised the

issue at that meeting, the City Commission voted to r einstate

Officer Williams's pay pending the internal audit results.

8. In reality the Respondent objected to the procedure

used by then Chief Zalisko against Officer Williams, rather than

the actual decision to terminate the officer. In fact, the

Respo ndent ultimately voted to terminate Officer Williams from

the Oak Hill Police Department.

9. In any event, after the April 18, 2005, City Commission

meeting, then Chief Zalisko was angry that the Respondent had

questioned his authority to suspend Officer Williams without pay

in front of the City Commission. While walking back from the

City Commission meeting Chief Zalisko called the Respondent a

derogatory name and stated to other police officers that he was

"going to get him."

10. Apparently various m embers of the community

communicated to the Respondent that Chief Zalisko was very upset

with him and was "having him watched." Officer Winston of the

police department came to the Respondent's shop and told the

Respondent that the Chief was "out to get h im and was watching

his shop and having officers take photographs of cars parked at

his shop."

11. Sometime in June 2005 the Respondent received a

telephone call from an anonymous caller advising him that Chief

Zalisko was watching his saddle shop and ha ving police officers

take photos of cars parked there. This person was later

revealed to be Sergeant Guy Grasso who replaced Zalisko as the

current Chief of Police for Oak Hill and who testified in the

hearing. Chief Grasso contacted the Respondent after Chief

Zalisko ordered officers, including Grasso, to keep cameras in

their police cars and photograph and ticket cars parked

illegally at the Respondent's shop. 1/ As shown by Advocate's

Exhibit A - 3 (A - F) a series of photographs (A - F) of cars parked

at th e Respondent's business, photographs indeed, were taken.

Although Chief Zalisko initially denied that he had done so, or

ordered it done, he also testified that he took some of the

photographs, but thought that Officer Ihnkin or Officer Winston

had taken the remainder of the photographs. In any event, both

Officer Ihnkin's and Chief Grasso's testimony as well as that of

Chief Zalisko, shows that photographs of cars parked in front of

the Respondent's shop were taken, and implicitly would only have

been ta ken upon then Chief Zalisko's order.

12. Officer Ihnkin testified that Chief Zalisko told

police officers prior to October 11, 2005, to write tickets for

cars parked in front of Dean's Saddle Shop and to take

photographs of the cars there. The current Chief of Police, Guy

Grasso, also testified that before October 11, 2005, then Chief

Zalisko had ordered all officers to take photographs of cars

parked at the Respondent's saddle shop business and to give

tickets to cars parked there.

13. Chief Zalisko had discussions with members of the

police department concerning the application of Section 316.945,

Florida Statutes (the parking violation statute) as it pertained

to the Respondent's shop and its location. An issue arose about

the location of a stop s ign at the corner of U.S. 1 and East

Halifax Avenue, concerning the legality of cars parked in

relation to the sign. Officer Ihnkin testified that he pointed

out to Zalisko that the statute required that a car be parked 30

feet on the approach to the stop sign (presumably a minimum of

30 feet distance from the sign) and that cars parked on U.S. 1

in front of the saddle shop were actually behind the stop sign

so they could not be on the approach to it and were therefore

legally parked. Officer Ihnkin relat es that Chief Zalisko

opined that any car parked in front of the saddle shop was

illegally parked and should be cited. Both Chief Grasso and

Officer Ihnkin's testimony regarding the conversations they had

with Chief Zalisko about the applicability of the above statute

to parking in the vicinity of the saddle shop is corroborated by

Chief Zalisko's opinion that it is not legal to park in front of

Dean's Saddle Shop on U.S. 1 or on the East Halifax side of the

shop.

14. There were four or five incidents before October 11,

2005, while the Respondent was at his shop, when he was

contacted by officers from the police department about cars

parked in front of the shop. There was never an incident where

the officer was rude to him, the contacts were friendly a nd the

Respondent always voluntarily had the cars moved.

15. Kelly's Bait and Tackle Shop and Shell Gas Station is

a nearby business which has a stop sign on U.S. 1 next to the

business. The Respondent observed cars parked around that stop

sign and the gas station actually dispensing gas to cars which

technically were on the right - of - way of U.S. 1. Neither the

cars nor the business was ever cited or told to move the cars,

according to the Respondent. Whether or not this was true the

Respondent felt th at he was being harassed by Chief Zalisko by

having his business targeted and not other businesses. The fact

that people were telling him, rightly or wrongly, that he was

being watched by the police chief and that customers were having

to move their cars from his shop, when other businesses were not

being so closely watched, or supervised by the police department

fed the Respondent's feelings of harassment on the part of then

Chief Zalisko.

16. On October 10, 2005, a City Commission meeting was

held at w hich the Respondent once again took issue with the way

Chief Zalisko handled the promotion of Sergeant Shaffer to

lieutenant. The City of Oak Hill operates by resolution, and

before anyone could be promoted to the position of lieutenant

the city needed to pass a resolution creating that position. On

October 7, 2005, before the City Commission had voted on whether

to create the lieutenant's position, Chief Zalisko issued a

press release announcing that Officer Shaffer had been promoted

to lieutenant. The Respondent took issue with Chief Zalisko at

the City Commission meeting for announcing to the newspaper that

the promotion had been made, when in fact it had not. Chief

Zalisko became angry with the Respondent and raised his voice on

that occasion. The R espondent actually approved having Officer

Shaffer promoted to lieutenant, but was at odds at Chief Zalisko

over the procedure that Chief Zalisko had used. Chief Zalisko's

anger at the Respondent from the events of the October 10th City

Commission meeting is corroborated by Advocate's Exhibit 6, in

which Zalisko describes the Respondent's conduct at the

October 10th meeting as "ruining Lieutenant Shaffer's day" by

unnecessary "show boating."

17. On October 11, 2005, Officer Ihnkin observed a car

parke d in front of Dean's Saddle Shop. He thought it might be

illegally parked, but rather than issue a citation he went into

the shop and asked the owner of the car to move it, which the

owner readily did. Officer Ihnkin stated that the sales lady,

who actua lly was the Respondent's wife, stopped him while he was

in the store and accused him and the police department of

harassing them and interrupting her sale. Mrs. Dean and witness

Charlie Haynes, a good friend of the Dean's niece and nephew,

both testified that the officer behaved in a gruff rude manner

toward Mrs. Dean. Officer Ihnkin denied being rude or

unprofessional or that he raised his voice.

18. Mrs. Dean testified that she primarily runs the shop,

with some help from her husband. She had never e ncountered any

problems with parking around the shop, according to her

testimony, until the Respondent questioned Chief Zalisko about

policy and procedures regarding the Williams suspension

incident. After that she maintains police officers would come

to the shop and tell customers to move their cars. The

customers complied with it. Mrs. Dean maintains that during

that same time period no other businesses in the vicinity were

having parked cars moved. She also states that she observed

Chief Zalisko sitt ing in his patrol car watching her business

with binoculars. These incidents purportedly occurred between

February and October of 2005.

19. In any event, at the end of the October 11, 2005,

incident in the store, Office Ihnkin left the saddle shop after

the customer complied with his request to move the car without

issuing a traffic citation or a written warning.

20. Later that afternoon the Respondent came to the saddle

shop after work. Mrs. Dean explained what had happened and told

the Respondent that the officer had been rude.

21. The Respondent told his wife that he would find out

about the situation and went to the police station. Upon

arriving at the Oak Hill Police Station, the Respondent

confronted Chief Zalisko in his office regarding the in cident at

Dean's Saddle Shop earlier that day. The Respondent asked the

chief why the officer had been rude to his wife and the chief

responded by telling him that the officer had not been rude.

22. During the conversation regarding the incident with

O fficer Ihnkin at the saddle shop, the Respondent told Chief

Zalisko that "you work for me." Chief Zalisko maintains in his

testimony that he responded that he did not work for the

Respondent, but that he worked for the city commission as a

whole. The Res pondent went on to criticize the way the chief

was running the police department and told the chief that he did

not feel that he was following proper procedures.

23. During the course of the heated conversation of about

10 minutes duration the subject o f the promotion of Lieutenant

Shaffer came up once again. The Respondent indicated his

displeasure at the way Chief Zalisko had handled the matter of

the promotion of Lieutenant Shaffer. The Respondent maintains

that he did not raise the issue of Lieuten ant Shaffer's

promotion during this conversation because he did not want to

upset Lieutenant Shaffer once again as had been done the night

before at the city commission meeting. Lieutenant Shaffer was

present during this conversation between the Responden t and

Chief Zalisko in the police station.

24. Regardless of who brought up the Lieutenant Shaffer

promotion issue again, it is undisputed that in the conversation

the Respondent made the comment, "I am coming after your job,

and I am going to work hard to get rid of you." This comment

was made near the end of the conversation when the Lieutenant

Shaffer promotion was being discussed.

25. The evidence does not reflect that the Respondent ever

approached Officer Ihnkin concerning the way that he felt the

officer had treated Mrs. Dean at the saddle shop on the day in

question. The evidence does not indicate that he directed Chief

Zalisko to do anything regarding parking citations or violations

at his shop. He never issued any orders or directives to C hief

Zalisko during that conversation at the police station. It is

undisputed that both Chief Zalisko and the Respondent were

speaking to each other with raised voices, arguing during this

conversation. The conversation or argument lasted approximately

1 0 minutes whereupon the Respondent left the police station.

26. The Respondent admitted in his testimony at final

hearing that he made the comments to Chief Zalisko in both his

official capacity as a city commissioner and in his capacity as

a private citi zen.

27. Chief Zalisko in his testimony stated that he felt

uncomfortable with the way the Respondent approached him during

the argument in the police station. He testified that it was

the second time the Respondent has threatened his job and he

felt t hat he could go through with the threat and that he was

misusing his position "for some personal gain to his saddle

shop."

28. Chief Zalisko further acknowledged that the Respondent

never told him not to enforce the traffic laws at his shop, or

that eve rybody should be ticketed, but the chief testified that

the fact that the Respondent was complaining to him in his

office and the fact that he was a commissioner sent him a signal

that the Respondent was looking "for some preferential

treatment." It is cl ear that during the conversation the

Respondent told the chief that the chief "worked for him" in the

context of the Ihnkin incident. It is also clear that the

Respondent knew at the time of the confrontation that he should

not use his official position t o confront Chief Zalisko and

threaten his job, regardless of whether it was about the parking

situation or what the Respondent believed about the way the

chief managed the police department, including the Lieutenant

Shaffer promotion incident. The Respond ent understood the

limitations and restrictions of both the city charter and the

code of ethics.

29. City commissioners are accountable to the citizens and

the Respondent was the appointed head of the Solid Waste

Department therefore he had no authority to issue orders or

directives concerning the police department. Parenthetically,

there is no evidence that he actually did that. Under the city

charter no individual commissioner, except the commissioner who

is an appointed department head, may give dir ectives to

employees of a commissioner's assigned department.

30. The Respondent sought to justify his behavior on

October 11, 2005, by alleging that he felt that Chief Zalisko

had been harassing him. The totality of the evidence of record

indicates that there is some validity to the contention that

Chief Zalisko was harassing the Respondent, even in the face of

the fact that no actual tickets or warnings were issued for

parking violations adjacent to the Respondent's saddle shop.

The evidence, however, clearly and convincingly demonstrates

that the Respondent, while a member of the Oak Hill City

Commission, whet to the office of the police chief and

threatened the police chief concerning his employment status,

after a police officer had notified the Resp ondent's wife of a

parking violation in front of their business, and his wife had

conveyed to the Respondent the message that the officer had been

rude to her. The Respondent, both as a private citizen and as a

city commissioner, made direct threats of re taliation against

Chief Zalisko concerning his employment.

CONCLUSIONS OF LAW

31. The Division of Administrative Hearings has

jurisdiction of the subject matter of and the parties to this

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

32. Sect ion 112.322, Florida Statutes (2007), 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 (th e code of ethics for public officers and

employees).

33. The burden of proof is on the party asserting the

affirmative of the issue in these proceedings. See Department

of Transportation v. J.W.C. Company, Inc. , 396 So. 2d 778 (Fla.

1st DCA 1981); Balino v. Dept. of Health and Rehabilitative

Services , 348 So. 2d 349 (Fla. 1st DCA 1977). The Commission in

this proceeding is asserting the affirmative and seeking to

change the status quo by attempting to show that the Respondent

has violated Section 112.313 , Florida Statutes. The Ethics

Commission proceedings which seek recommended penalties against

a public officer or employee require proof by clear and

convincing evidence. See Latham v. Florida Commission on

Ethics , 694 So. 2d 83 (Fla. 1st DCA 1997). Cl ear and convincing

evidence has been held to be that evidence which is credible;

the facts to which the witnesses testify must be distinctly

remembered; the testimony must be precise and explicit and the

witnesses lacking in confusion as to the facts in is sue. The

evidence should be of such weight as to produce in the mind of

the trier of fact a firm belief or conviction as to the truth of

the allegations. See In Re: Davey , 645 So. 2d 398, 404 (Fla.

1994), quoting Slomowitz v. Walker , 429 So. 2d 797, 800 (Fla.

4th DCA 1983).

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

MISUSE OF PUBLIC POSITION. - No public

officer, employee of an agency, or local

government attorney shall corruptly use or

attempt to use his or her official position

or any property o r resource which may be

within his or her trust, or perform his or

her official duties, to secure a special

privilege, benefit, or exemption for

himself, herself, or others. This section

shall not be construed to conflict with s.

104.31.

35. The term "c orruptly" 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

compensating or receiving compensation for,

any benefit resulting from some act or

omission of a publi c servant which is

inconsistent with the proper performance of

his or her public duties.

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

violated Section 112.313(6), Florida Statutes, the Commission on

Ethics must establish the following elements : (1) The

Respondent must have been a public officer or employee; (2) the

Respondent must have (a) used or attempted to use his or her

official position or any property or resources within his or her

trust, or (b) perform his or her official duties; (3) t he

Respondent's actions must have been taken to secure a special

privilege, benefit or exemption for himself or herself or

others; (4) the Respondent must have acted corruptly, that is,

with wrongful intent and for the purpose of benefiting himself

or hers elf or another person from some act or omission which was

inconsistent with the proper performance of his or her public

duties.

37. It has been stipulated that the Respondent was a

member of the Oak Hill City Commission at times pertinent

hereto, and is s ubject to the requirements of Part III, Chapter

112, Florida Statutes. Thus the first element referenced above

of a violation of the quoted statutory provision, has been

established.

38. It must also be shown that the Respondent used or

attempted to use his public position. While the Respondent may

argue that he, acting alone, did not have the power to take

action against Chief Zalisko, all that is required is that an

attempt to use one's public position to secure a special

privilege, benefit, or exempti on be made. In that regard, the

Respondent admits that during his confrontation with Chief

Zalisko on October 11, 2005, concerning the Officer Ihnkin

incident, the Respondent told Chief Zalisko, "You work for me."

The evidence also clearly shows that the Respondent told the

chief that day, "I am coming after your job, and I am going to

work hard to get rid of you." The Respondent admitted those

statements he made to Chief Zalisko were made both in his

capacity as a private citizen and as a city commissio ner. Chief

Zalisko clearly felt that the Respondent, as a city

commissioner, was threatening his job.

39. The Commission on Ethics has held that "the mere

invocation of one's status as a public official may constitute a

use of office." See Final Order in Public Report In Re: Tom

Ramiccio , 23 FALR 895, 902 (Fla. Commission on Ethics 2000)

[DOAH No. 00 - 265EC], affirmed per curium, 792 So. 2d 471 (Fla.

4th DCA 2001).

40. This evidence concerning the statements made during

the conversation on October 1 1, 2005, clearly show that the

Respondent used or at least attempted to use his position. The

evidence also clearly demonstrated that he attempted to use his

position or office to secure some benefit, privilege or

exemption for himself. Although only an attempt need be shown,

that evidence revealed that many, if not all, of his threatening

statements to Chief Zalisko were related to parking enforcement

at his business. The context of the Respondent's statements

declaring that Chief Zalisko worked for him , during the

conversation regarding parking enforcement and his further

pronouncement that he did not like the way the chief managed the

police department and that he would work hard to get rid of him,

leaves little doubt that he intended to intimidate Chi ef Zalisko

with the power of his position, in part in an attempt to

influence the way the parking laws were being enforced around

his business. Therefore, the statutory requisite that his

actions were done in an attempt to secure some special benefit

has been met (although, to the extent Chief Zalisko focused his

enforcement attention on the Respondent's business location, his

conduct warrants scrutiny as well).

41. In consideration of the admitted statements by the

Respondent to Chief Zalisko during th eir confrontation it has

been shown that the Respondent acted with the requisite wrongful

intent, albeit very transitory and in the heat of anger, as is

defined in Section 112.312(9), Florida Statutes. Indeed, the

Commission on Ethics has opined in CEO 91 - 38 (CEO's are found at

www.ethics.state.fl.us) that even identification of oneself as a

city council member in correspondence may be inappropriate,

depending on the context. Specifically, the Commission on

Ethics has concluded that it would be inappropri ate for a public

official to identify himself as a council member in a letter

"being sent to settle a strictly private dispute with a debtor

or creditor." CEO 91 - 38, page 2. In the case of In Re: Jimmy

Whaley , 28 FALR 2267 (Florida Commission on Ethics 1 997) [DOAH

No. 97 - 143EC], where a city commissioner's "choice of words and

tone of voice" evidenced his intent to misuse his official

position, the Respondent's choice of words in the instant

situation, stating that Chief Zalisko "worked for him" and that

he was "coming after the [police chief's] job" was clearly

designed to intimidate Chief Zalisko. He was attempting to

intimidate the chief with the power of his position as a city

commissioner during their confrontation regarding the parking

enforcement i ssue around the Respondent's business and that is

the way he was understood by Chief Zalisko.

42. The Respondent's words and actions that day, together

with the Respondent's understanding of the limitations imposed

on his interactions with city employees in his capacity as a

city commissioner, show his wrongful intent on that brief,

transitory occasion.

43. The Respondent was clearly upset during the

confrontation; therefore, his comments should be understood with

that consideration in determining their import or the weight to

be ascribed to them. The Respondent had wrongful intent when he

made the comments at issue, given his past hostile relationship

with Chief Zalisko, his beliefs concerning the chief's

mismanagement of personnel practices in the pol ice department

and his beliefs concerning the chief's apparent selective law

enforcement directed at him and his business. The comments are

somewhat understandable, while not totally excusable. As noted

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

in In Re: Fred Peel , 15 ALR 1187 (Florida Commission on Ethics

1992):

It is possible for the corrupt intent

required by the statute to be formed

instantaneously, and a premeditated plan for

securing a special benefit is not required

by the s tatute. Even a reflective reaction

may rise to the level of corrupt intent,

depending on the circumstances.

Id. ; See also In Re: Lisa Marie Phillips , DOAH Case No. 05 -

1607EC (Florida Commission on Ethics 2006) (Recommended Order

page 13, paragraph 33, adopted in Final order on April 21,

2006).

44. The evidence shows that the Respondent knew at the

time that he made the intimidating statements referenced above

that they were "wrongful" and were made for the purpose of

influencing the enforcement of par king regulations in an effort

to benefit himself or his business. They were inconsistent with

the proper performance of his public duties. The Respondent has

admitted that the statements made regarding parking enforcement,

regarding police management (pa rticularly the promotion of

Lieutenant Shaffer incident or issue) were made in the

Respondent's public capacity as a city commissioner. See

Recommended Order in In Re: Tom Ramiccio , 23 FALR 895, 909

(Florida Commission on Ethics 2000) [DOAH Case No. 00 - 2 65EC],

affirmed per curium, 792 So. 2d 471 (Fla. 4th DCA 2001) found

that the context in which remark was made indicated intention to

threaten in a manner that was inconsistent with the Respondent's

performance of his public duties); cf , In Re: Al Paruas , DOAH

Case No. 04 - 3831EC (Florida Commission on Ethics 2005) (where a

city commissioner was found to have misused his office when he

had a meeting with the police chief and police officer during

which the commissioner expressed his displeasure with the poli ce

department and suggested that the policemen should apologize and

take the ticket back).

45. In summary, the clear and convincing evidence

demonstrates that the Respondent violated Section 112.313(6),

Florida Statues, by using his position to threate n and/or

intimidate Chief Zalisko and that, as a member of the City

Commission of Oak Hill, he violated Section 112.313(6), Florida

Statutes (2007), by threatening the police chief concerning his

employment after a police officer notified the Respondent's wife

of a parking violation in front of the Respondent's business.

It is determined that, in a transitory, isolated way, during the

heat of anger, the Respondent made these threats in a manner

inconsistent with the proper performance of his public duties

and thus with the wrongful intent required in the above - quoted

statutory definition. It is not, however, to be concluded that

the Respondent is by nature and regular practice in his public

duties or in his life as a private citizen carrying out his

public duties or his private business in a corrupt, wrongful

manner.

46. Public officials who have misused their position are

subject to varying penalties including reprimand, public

censure, suspension from office, removal from office,

impeachment, forfeiture of no more than one - third salary per

month for no more than 12 months, and a civil penalty not to

exceed $10,000.00. See § 112.317, Fla. Stat. (2007). In

consideration of the total circumstances shown by the above

findings of fact, especially the shared faults and

responsibilities in the relationship between former Chief

Zalisko and the Respondent, and particularly the Respondent's

contrition and candor in describing honestly the circumstances

of the incidents in question, related in the above findings o f

fact, a minimal penalty is warranted.

RECOMMENDATION

Having considered the foregoing Findings of Fact,

Conclusions of Law, the evidence of record, the candor and

demeanor of the witnesses, and the pleadings and the arguments

of the parties, it is, there fore,

RECOMMENDED that a final order and public report be entered

by the Florida Commission on Ethics finding that the Respondent

Charles Dean, violated Section 112.313(6), Florida Statutes

(2007), and imposing a civil penalty of two hundred dollars.

DONE AND ENTERED this 31st day of January, 2008, in

Tallahassee, Leon County, Florida.

S

P. MICHAEL RUFF

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Flo rida 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 31st day of January, 2008.

ENDNOTE

1/ Some of this testimony as to conversations with the

Respondent and Officer Winston or (then) Officer Grasso and the

Respondent are hearsay. They were only admitted as testimony to

explain how the Respondent came to have an awareness of the

parking enforcement situation and the impetuous for his

follow ing course of conduct, not for the truth of the matters

asserted in those hearsay conversations.

COPIES FURNISHED :

James H. Peterson, III, Esquire

Office of the Attorney General

The Capitol, Plaza Level 01

Tallahassee, Florida 32399 - 1050

Maureen Sulli van Christine, Esquire

28 Cordova Street

St. Augustine, Florida 32084

Kay Starling, Agency Clerk

Florida Commission on Ethics

3600 Macclay Boulevard, South

Suite 201

Post Office Drawer 15709

Tallahassee, Florida 32317 - 5709

Philip C. Claypool, Executive Director

and General Counsel

Florida Commission on Ethics

3600 Macclay Boulevard, South

Suite 201

Post Office Drawer 15709

Tallahassee, Florida 32317 - 5709

James Patterson, Esquire

Linzie Bogan, Esquire

Office of the Attorney General

The Capitol, Plaza Level 01

Tallahassee, Florida 32399 - 1050

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 wi th the agency that

will issue the Final Order in this case.