08-000676EC In Re: Cheryl W. Keel vs. * Status: Closed Recommended Order on Friday, May 16, 2008.

Summary: Respondent used a State Purchasing card to acquire personal items totaling $19,659.09. Recommend that she receive a $10,000 fine, a public censure and reprimand, and that she repay the money stolen.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

IN RE: CHERYL W. KEEL, ) Case No. 08-0676EC

)

Respondent. )

)

RECOMMENDED ORDER

This cause came on for final hearing before Harry L.

Hooper, Administrative Law Judge with the Division of

Administrative Hearings, on April 16, 2008, in Palatka, Florida.

APPEARANCES

For the Florida Commission on Ethics:

Jennifer M. Erlinger, Esquire

Office of the Attorney General

The Capitol, Plaza Level 01

Tallahassee, Florida 32399-1050

For Respondent: No appearance

STATEMENT OF THE ISSUE

The issue is whether Respondent violated the Code of Ethics

for Public Officers and Employees.

PRELIMINARY STATEMENT

It was alleged that Cheryl W. Keel (Ms. Keel) misused a

State of Florida purchasing card provided to her by the

St. Johns River Water Management District (District), prior to

her resignation in December 2004 and on two occasions subsequent

to her resignation. It was further alleged that she misused the

District's e-mail system. It was alleged that her actions

violated the Code of Ethics for Public Officers and Employees

(Code). The District's inspector general investigated the

matter and eventually referred his findings to the Florida

Commission on Ethics (Commission) in a complaint filed on

July 8, 2005.

The Commission investigated the complaint and, subsequent

to receiving the Advocate's Recommendation dated September 18,

2006, rendered an Order Finding Probable Cause that was filed on

October 25, 2006.

The Order Finding Probable Cause found only that Ms. Keel

misused her purchasing card in violation of the Code. The Order

Finding Probable Cause and allied papers were forwarded to the

Division of Administrative Hearings and filed on February 7,

2008. The hearing was set for April 16, 2008, and heard as

scheduled.

At the hearing, the Advocate presented the testimony of two

witnesses and offered 19 exhibits into evidence. A Transcript

was filed on April 29, 2008. After the hearing, the Advocate

timely filed her Proposed Recommended Order on May 9, 2008.

Respondent did not file anything.

References to statutes are to Florida Statutes (2005)

unless otherwise noted.

FINDINGS OF FACT

1. The District is a state agency involved with the

management of the water resources of several Northeast Florida

counties.

2. Ms. Keel is a resident of Palatka, Florida, and is a

former employee of the District. Her name was Cheryl L. Worgum

when she began working for the District in December 1997, as a

Business Resource Specialist.

3. During times pertinent, Ms. Keel held the position of

Business Resource Specialist II. Her duties included purchasing

supplies on behalf of the District. She was issued a State of

Florida purchasing card to facilitate the accomplishment of her

duties. When she was issued the purchasing card on August 14,

2002, Ms. Keel signed a cardholder agreement to the effect that

she understood certain purchases were prohibited and that she

would adhere to the District's purchasing card policy.

4. The District's purchasing card policy provided that the

purchasing card would be used for District needs only. The

policy made it clear that the purchasing card was not provided

to Ms. Keel so that she could supplement her income. Ms. Keel

understood the policy.

5. While employed by the District in 2003 and 2004, and in

January 2005 on two occasions, which were subsequent to her

resignation on December 30, 2004, Ms. Keel made purchases

totaling $19,659.09 for her own personal benefit. These

purchases included items of apparel, school supplies, lamps, and

electronics, among other items that were not acquired for the

benefit of the District.

6. Ms. Keel submitted a letter of apology to the District

dated June 21, 2005. In that letter, she accepted

responsibility for her actions. As of December 2007, Ms. Keel

had repaid only $1,400 of the $19,659.09 that she had wrongfully

obtained.

CONCLUSIONS OF LAW

7. The Division of Administrative Hearings has

jurisdiction over the subject matter of and the parties to this

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

8. Section 112.322, Florida Statutes, and Florida

Administrative Code Rule 34-5.0015 authorize the Commission to

conduct investigations and to make public reports on complaints

concerning violations of Part III, Chapter 112, Florida

Statutes, which is known as the Code of Ethics for Public

Officers and Employees.

9. 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).

Therefore, the Advocate has the burden of proof.

10. In order to prevail, the Advocate must prove a

violation of the Code by clear and convincing evidence. Latham

v. Florida Comm'n on Ethics , 694 So. 2d 83 (Fla. 1st DCA 1997).

11. Subsection 112.313(6), Florida Statutes, provides as

follows:

§ 112.313. Standards of conduct for public

officers, employees of agencies, and local

government attorneys--

* * *

(6) MISUSE OF PUBLIC POSITION. --No public

officer, employee of an agency, or local

government attorney shall corruptly use or

attempt to use his or her official position

or any property or resource which may be

within his or her trust, or perform his or

her official duties, to secure a special

privilege, benefit, or exemption for

himself, herself, or others. This section

shall not be construed to conflict with s.

104.312.

12. The term "corruptly" is defined by Subsection

112.312(9), Florida Statutes, as that which is ". . . done with

a wrongful intent and for the purpose of obtaining, or

compensating or receiving compensation for, any benefit

resulting from some act or omission of a public servant which is

inconsistent with the proper performance of his or her public

duties."

13. In order to conclude that Ms. Keel violated Subsection

112.313(6), Florida Statutes, the Advocate must establish the

following elements:

1. Ms. Keel was a public officer or

employee.

2. Ms. Keel used or attempted to use

her official position or any property or

resources within her trust.

3. Ms. Keel's actions were taken to

secure a special privilege, benefit or

exemption for herself or others.

4. Ms. Keel must have acted corruptly,

that is, with wrongful intent and for the

purpose of benefiting herself or another

person from some act or omission which was

inconsistent with the proper performance of

her public duties.

14. Applying the foregoing analysis to this case, it is

found that Ms. Keel was a public employee; that she used

resources within her trust; that her actions were taken to

secure a benefit to herself; and that she acted corruptly, in

that her acts were inconsistent with the proper performance of

her public duties.

15. It is, therefore, found as a fact that Ms. Keel

violated Subsection 112.313(6), Florida Statutes, by wrongfully

and corruptly using her State of Florida purchasing card to

enrich herself.

16. The penalties applicable to a former public employee

who has been found guilty of misusing her position include:

public censure and reprimand; a civil penalty not to exceed

$10,000; and restitution of any pecuniary benefit received

because of the violation committed. § 120.57(1), Fla. Stat.

RECOMMENDATION

Based upon the Findings of Fact and Conclusions of Law, it

is

RECOMMENDED that a final order and public report be entered

finding that Respondent Cheryl W. Keel, violated Subsection

112.313(6), Florida Statutes; that she be required to pay a

civil penalty in the amount of $10,000 and restitution in the

amount of $18,259.09; and that she be publicly censured and

reprimanded.

DONE AND ENTERED this 16th day of May, 2008, in

Tallahassee, Leon County, Florida.

S

HARRY L. HOOPER

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 16th day of May, 2008.

COPIES FURNISHED :

Jennifer M. Erlinger, Esquire

Office of the Attorney General

The Capitol, Plaza Level 01

Tallahassee, Florida 32399-1050

Cheryl W. Keel

650 Bardin Road

Palatka, Florida 32177

Kaye Starling, Agency Clerk

Florida Commission on Ethics

Post Office Drawer 15709

Tallahassee, Florida 32317-5709

Philip C. Claypool

Executive Director and General Counsel

Florida Commission on Ethics

Post Office Drawer 15709

Tallahassee, Florida 32317-5709

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.