08-001437EC In Re: Daisy Lynum vs. * Status: Closed Recommended Order on Monday, February 23, 2009.

Summary: City commissioner, who used her official position to complain of racial profiling during an ongoing traffic stop of her son, obtained a benefit or privilege not available to a member of the public and violated Subsection 112.313(6), Florida Statutes.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

IN RE: DAISY LYNUM, )

) Case No. 08-1437EC

Respondent. )

)

RECOMMENDED ORDER

Administrative Law Judge (ALJ) Daniel Manry conducted the

final hearing of this case for the Division of Administrative

Hearings (DOAH), on October 7, 2008, in Orlando, Florida.

APPEARANCES

For Petitioner: Jennifer M. Erlinger, Esquire

Office of the Attorney General

The Capitol, Plaza Level 01

Tallahassee, Florida 32399-1050

For Respondent: Rick L. Jancha, Esquire

NeJame, Lafay, Jancha, Ahmed,

Barker & Joshi, P.A.

189 South Orange Avenue, Suite 1800

Orlando, Florida 32801

STATEMENT OF THE ISSUE

The issue is whether Respondent misused her position as an

Orlando city commissioner by attempting, on May 6, 2006, to

influence how the Orlando Police Department (the police

department) handled a routine traffic stop involving her son in

violation of Subsection 112.313(6), Florida Statutes (2005). 1

PRELIMINARY STATEMENT

On April 25, 2007, the Commission on Ethics (Petitioner)

issued an Order Finding Probable Cause to believe Respondent

violated Subsection 112.313(6) by using her official position to

influence how the police department handled a routine traffic

stop involving Respondent’s son. Respondent timely requested an

administrative hearing, and Petitioner referred the matter to

DOAH to conduct the final hearing.

At the hearing, Petitioner called four witnesses and

submitted 10 exhibits, including two impeachment exhibits, for

admission into evidence. Respondent called three witnesses and

submitted no exhibits.

The identity of the witnesses and exhibits and the rulings

regarding each are reported in the two-volume Transcript of the

final hearing filed with DOAH on December 10, 2008. The parties

timely filed their respective Proposed Recommended Orders on

January 26, 2009.

FINDINGS OF FACT

1. Petitioner is the state agency responsible for

regulating compliance with the Code of Ethics applicable to

public officers and employees pursuant to Chapter 112, Part III.

At all times material to this proceeding, Respondent has been a

public officer, a commissioner of the City of Orlando, Florida.

Respondent is African-American, as are her two sons Mr. Sean

Lynum and Mr. Juan Lynum.

2. At 12:50 a.m., on May 6, 2006, Officer Matthew Ochiuzzo

was on duty for the police department patrolling the Paramore

neighborhood in Orlando less than a mile from Rock Lake Drive.

Officer Ochiuzzo stopped Mr. Juan Lynum because of an inoperable

headlight on the vehicle Mr. Lynum was driving. 2 Mr. Lynum was

driving Respondent’s vehicle home from a fraternity party to

Respondent’s residence on Rock Lake Drive in Orlando, Florida.

Mr. Lynum shared the residence with Respondent at the time.

Neither Respondent nor Mr. Lynum were aware that a headlight on

the vehicle was not working.

3. Mr. Lynum telephoned Respondent from his cellular

telephone. He informed Respondent that he was being stopped by

a Caucasian police officer and expressed his concern that he was

the victim of racial profiling.

4. Respondent telephoned then Chief Michael McCoy of the

police department at his home and expressed her concern that

Mr. Lynum was the victim of racial profiling. Chief McCoy said

he would telephone the watch commander on duty and have him deal

with the allegation of racial profiling.

5. Respondent then telephoned Officer Roderick Johnson,

the police liaison officer assigned to Respondent and an officer

first class in the police department. Officer Johnson was

engaged in approved off-duty employment to provide security at a

local night club. Respondent had time to disclose the general

location of the traffic stop and her concern that her son was

being racially profiled when she terminated the conversation to

take a return telephone call from Chief McCoy.

6. Respondent clearly intended to influence how the police

department handled the traffic stop. Respondent did not

expressly request intervention in the traffic stop by

Chief McCoy or Officer Johnson, but Respondent admits that the

purpose of her action was to alert both men to possible racial

profiling and to monitor the traffic stop.

7. Respondent used her official position to influence the

traffic stop of her son. Both Chief McCoy and Officer Johnson

interpreted a telephone call from a city commissioner at

approximately 1:00 a.m. in the morning to be a request for

action in her official duty as a commissioner. 3 The testimony of

Chief McCoy is illustrative.

Q. Chief, when you received that call from

Commissioner Lynum, did you feel you needed

to act based on the phone call?

A. She’s a Commissioner, yes. Act then,

yes. . . .

Q. . . . When you answered that she was a

Commissioner, what did you mean by that? How

did that impact you?

A. I used to make the analogy that our

Commissioners were our board of directors,

because I spent some time in the private

sector, and you know, they drive the

direction of the city, police department

being part of that. So they’re a

Commissioner. They’re elected by the

people, so, yeah, pay attention to a

Commissioner call, as I would a Mayor call.

Q. So when you responded to her, were you

responding as a friend or as a commissioner?

A. As a commissioner.

Transcript (TR) at 258-259 and 277.

8. Officer Johnson took it upon himself to call Officer

Ochiuzzo, by radio and then by cell phone, during the traffic

stop. A call from a city commissioner at approximately

1:00 a.m. motivated Officer Johnson to take action.

9. Officer Ochiuzzo terminated the traffic stop after

discussing the matter with Officer Johnson and never spoke to

the watch commander on duty during the traffic stop.

Officer Ochiuzzo had intended to issue a traffic summons to

Mr. Lynum for an inoperable headlight, no registration, and no

proof of car insurance.

10. The benefit sought by Respondent in her attempt to

influence how the police department handled the traffic stop

involving her son was not to prevent her son from receiving a

traffic citation. When Mr. Lynum arrived at Respondent’s home

after the traffic stop, Respondent discovered that the headlight

on her vehicle was inoperable. She telephoned Officer Johnson

and asked him to ensure that a traffic citation was forwarded to

her.

11. The benefit sought by Respondent was to prevent racial

profiling during an ongoing traffic stop by complaining directly

to the chief. That was a special benefit or privilege available

to Respondent that was not available to a member of the public

through the police department’s bias free policing policy.

12. The police department’s bias free policing policy was

drafted by legal counsel for the department and was adopted in

June 15, 2004. The policy required a member of the public who

alleged racial profiling to file a written complaint on a form

provided by the department and required the department to

investigate the alleged profiling.

13. Respondent was personally familiar with the police

department’s bias free policing policy. Respondent was very

active in the community, supported the bias free policing

policy, and assisted her constituents in processing profiling

complaints.

14. Mr. Lynum later filed a complaint of racial profiling

pursuant to the bias free policing policy. The police

department investigation exonerated Officer Ochiuzzo.

Exoneration means the department found Officer Ochiuzzo to be

innocent of the charges in the complaint. Exoneration differs

from “not sustained” in that the latter means only that the

proof is insufficient to support a finding of guilt.

15. When Respondent telephoned Chief McCoy and her liaison

officer at approximately 1:00 a.m. on the morning of May 6,

2006, Respondent acted with wrongful intent for the purpose of

benefiting another person from an act or omission during an

active traffic stop. Respondent acted in a manner that was

inconsistent with her public duties.

16. Respondent testified that she called Chief McCoy and

Officer Johnson, not in her capacity as commissioner, but as a

mother fearful for the safety of her son. Mr. Lynum testified

that he sought his mother’s help out concern for his safety at

the hands of a Caucasian police officer. The fact-finder finds

the testimony of both witnesses to be less than credible and

persuasive.

17. Mr. Lynum was on his cell phone when Officer Ochiuzzo

approached the vehicle driven by Mr. Lynum. Mr. Lynum virtually

ignored Officer Ochiuzzo. The actions of Mr. Lynum in ignoring

an investigating officer risked antagonizing the officer and are

inconsistent with a person in fear of physical harm. The

testimony of Officer Ochiuzzo is illustrative.

Q. So what did you do next?

A. I exited my patrol vehicle and I

approached Mr. Lynum’s car. . . .

Q. Okay. What happened next?

A. He was on his cell phone when I

approached the window and the window was up,

and I told him I was conducting a traffic

stop and that I needed his license and

registration, proof of insurance, and he

didn’t respond.

Q. So at the initial approach of the

vehicle, did you make any other gestures to

get the driver’s attention or did you solely

use voice commands?

A. Voice commands combined with my patrol

car lights and chirping of the siren.

Q. So when you made these initial voice

commands, did the driver respond?

A. No.

Q. So what did you do next to get his

attention?

A. . . . I took my flashlight and I tapped

the window to get the driver’s attention and

instructed him again that I was conducting a

traffic stop and I needed a license,

registration, proof of insurance.

Q. And at that point did Mr. Lynum engage

in the traffic stop?

A. No.

Q. What did he do?

A. He ignored it once again. He was on the

cell phone. And so I pulled the door open

and I told him that I was conducting a

traffic stop. I needed his license,

registration, proof of insurance.

TR at 35-36.

18. Officer Ochiuzzo returned to his patrol vehicle and

began writing a uniform traffic citation when he was interrupted

by the radio inquiry, which concluded by cell phone, from the

liaison officer for Respondent. Officer Johnson informed

Officer Ochiuzzo that Officer Johnson was Commissioner Lynum’s

liaison officer and that Officer Ochiuzzo had stopped the

commissioner’s son. After the conversation, Officer Ochiuzzo

terminated the traffic stop.

19. When Officer Ochiuzzo pointed patrol vehicle lights

into the rearview mirror of the vehicle of Mr. Lynum, shined a

flashlight beam into the vehicle, and kept his free hand on top

of his holstered pistol, it was not a threat to Mr. Lynum. It

was standard procedure for traffic stops at that hour. When

Officer Ochiuzzo was yelling at Mr. Lynum, it was because

Mr. Lynum had ignored the officer’s earlier attempts to redirect

Mr. Lynum from the cell phone conversation and had failed to

lower the window so the officer would not have been required to

yell to be heard.

20. Mr. Lynum is an attorney who is familiar with police

procedures during traffic stops through instructions from his

father who was a law enforcement officer from 1969 through 1987

and ended his career as the chief of the Wildwood Police

Department in Wildwood, Florida. Sean Lynum, Mr. Lynum’s

brother, is a former officer in the same police department as

Officer Ochiuzzo. Respondent is very active in the community

and familiar with police procedure.

21. A common safety precaution for a person who suspects

he or she is a victim of racial profiling during a traffic stop

is to ensure the site of the stop is well lighted and that the

person is in contact by cell phone with a person who can be a

witness. Mr. Lynum followed both precautions. He stopped in a

well-lit area, and he was on his cell phone.

22. Complaints of racial profiling in the area had

declined from 23 the year before Chief McCoy became the chief of

the department to a consistent annual range of six to eight.

Racial profiling was not an issue in the area until after

Mr. Lynum made his complaint. The testimony of Chief McCoy is

illustrative.

A. This, after the fact, became quite a

community event or issue, which sparked a

lot of accusations of racial profiling. Our

policy had been in effect as long as it’s

been in effect.

The year before I was Chief, there was

like 23 total racial profiling complaints

made. The year I became Chief that dropped

to like six or eight and that was-–that

number was pretty consistent. Even after we

had this community event issue, they still

never got over 10, total.

The key is that if you have a complaint,

you need to follow up on it. If people feel

like they were stopped simply because they

were-–of their race, then you need to do the

form and do it right and the officers know

that-–or knew that.

Q. So, really, it did not become a

community issue until after Commissioner

Lynum’s son was stopped, racial profiling?

A. That would definitely be my perspective

. . . . it was not an issue.

TR at 278-279.

CONCLUSIONS OF LAW

23. DOAH has jurisdiction over the subject matter of and

DOAH provided the parties with adequate notice of the final

hearing.

24. 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).

Petitioner has the burden of proof. Petitioner must show by

clear and convincing evidence that Respondent violated

Subsection 112.313(6) and the reasonableness of the proposed

penalty. Latham v. Florida Comm'n on Ethics , 694 So. 2d 83

(Fla. 1st DCA 1997).

25. Subsection 112.313(6) provides in relevant part:

§ 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.

26. The term "corruptly" is defined in Subsection

112.312(9) to mean 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.

27. Petitioner satisfied its burden of proof that

Respondent violated the relevant statute. Petitioner showed by

the requisite standard that Respondent was a public officer who

used her official position to secure a special privilege or

benefit for her son with wrongful intent and for the purpose of

benefiting her son. Her actions were inconsistent with the

proper performance of her official public duties.

28. Authorized penalties include impeachment; removal from

office; suspension from office; public censure and reprimand;

forfeiture of no more than 30 days' salary; a civil penalty not

to exceed $10,000.00; and restitution of any pecuniary benefit

received because of the violation committed. § 112.317.

Petitioner seeks public censure, a reprimand, and the imposition

of a fine of $10,000.00.

29. Petitioner did not show by clear and convincing

evidence that a fine of $10,000.00 is reasonable. Petitioner

cited no legislative or administrative authority that prescribes

guidelines for imposing authorized penalties. There is no

evidence of prior ethical violations or financial or physical

harm to the public or an individual.

RECOMMENDATION

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

is

RECOMMENDED that Petitioner enter a final order and public

report finding that Respondent violated Subsection 112.313(6)

and publicly censuring and reprimanding Respondent.

DONE AND ENTERED this 23rd day of February, 2009, in

Tallahassee, Leon County, Florida.

S

DANIEL MANRY

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone]

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 23rd of February, 2009.

ENDNOTES

1/ References to subsections, sections, and chapters are to

Florida Statutes (2005), unless otherwise stated.

2/ Officer Ochiuzzo was driving on the same street in the

opposite direction of Mr. Lynum when the officer observed the

inoperable headlight. The officer made a “U” turn and stopped

Mr. Lynum.

3/ A liaison officer assigned to a commissioner is not

authorized to conduct personal business for the commissioner.

COPIES FURNISHED :

Jennifer M. Erlinger, Esquire

Office of the Attorney General

The Capitol, Plaza Level 01

Tallahassee, Florida 32399-1050

Rick L. Jancha, Esquire

NeJame, Lafay, Jancha, Ahmed,

Barker & Joshi, P.A.

189 South Orange Avenue, Suite 1800

Orlando, Florida 32801

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

James Peterson, 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 with the agency that

will issue the Final Order in this case.