08-002725EC In Re: Coretta Udell-Ford vs. *
 Status: Closed
Recommended Order on Thursday, January 29, 2009.


View Dockets  
Summary: Respondent violated 112.313(6), Florida Statutes (2006), by using her position as a member of the White Springs Town Council to intimidate or attempt to intimidate a police officer in retaliation for a traffic stop the officer made on Respondent.

1STATE OF FLORIDA

4DIVISION OF ADMINISTRATIVE HEARINGS

8IN RE: CORETTA UDELL-FORD, ) Case No. 08-2725EC

16)

17Respondent. )

19)

20RECOMMENDED ORDER

22A final hearing was conducted in this case on October 30,

332008, in Lake City, Florida, before Suzanne F. Hood,

42Administrative Law Judge with the Division of Administrative

50Hearings.

51APPEARANCES

52For Advocate: James H. Peterson, III, Esquire

59Office of the Attorney General

64The Capitol, Plaza Level 01

69Tallahassee, Florida 32399-1050

72For Respondent: Charles Lynn Webb, Esquire

78Charles Lynn Webb & Associates, LLC

842900 Chamblee Tucker Road, Building One

90Atlanta, Georgia 30341

93STATEMENT OF THE ISSUES

97The issues are whether Respondent violated Section 112.313(6), Florida Statutes (2006), by using her position as a member of the White Springs Town Council to intimidate or

124attempt to intimidate a police officer in retaliation for a

134traffic stop the officer made on the Respondent, and if so, what

146is an appropriate recommended penalty.

151PRELIMINARY STATEMENT

153On June 13, 2007, the Florida Commission on Ethics

162(Commission) issued an Order Finding Probable Cause to believe

171that Respondent Coretta Udell-Ford (Respondent), as a member of

180the White Springs Town 1/ Council, violated Section 112.313(6),

189Florida Statutes (2006). The Commission forwarded the case to

198the Division of Administrative Hearings on June 9, 2008.

207The parties filed a Joint Response to Initial Order on June 19, 2008. A Notice of Hearing dated June 30, 2008, scheduled the hearing for August 8, 2008.

235On July 17, 2008, Respondent filed an unopposed Motion for Continuance of Final Hearing. The undersigned issued an Order

254Granting Continuance and Re-scheduling Hearing on July 21, 2008.

263The order scheduled the hearing for September 10 and 11, 2008.

274On September 5, 2008, Respondent filed a Motion for Continuance of Final Hearing. The Commission did not oppose the motion. On September 8, 2008, the undersigned issued an Order Granting Continuance and Re-scheduling Hearing for October 30, and 31, 2008.

314At the final hearing, the Advocate called six witnesses:

323Chris Rexford (former White Springs Police Officer), Joseph

331Subic (former White Springs Chief of Police), Travis Wade

340(Commission Investigator), Carey Herp (video specialist with the

348Florida Department of Law Enforcement), Todd Kennon (White

356Springs Town Attorney), and Respondent. The Advocate offered

364Exhibit Nos. P1, P2a, P2b, P3, P4, P5, and P7 that were accepted

377as evidence.

379At the final hearing, Respondent presented the testimony of two witnesses: Tracy Roberts (citizen of White Springs) and Robert Townsend (White Springs Town Manager). Respondent offered Exhibit Nos. R1 and R2 that were accepted as evidence.

415The court reporter filed the Transcript on November 14, 2008. The parties filed their Proposed Recommended Orders on December 15, 2008.

436FINDINGS OF FACT

4391. Respondent served as a member of the White Springs Town Council from 1998 to 2000. She served in that capacity again for a period of approximately one year and eight months beginning in June, 2006. At all times relevant here, Respondent was familiar with Florida’s Code of Ethics, Chapter 112, Florida Statutes, applicable to public officers and employees.

4982. As a Town Council member, Respondent was aware of the provisions of the White Springs Town Charter. Specifically, she

518was aware that complaints against the town's police officers had

528to be in writing.

5323. Under provisions of the White Springs Town Charter in

542effect in 2006, the police chief was in charge of the day-to-day

554operations of the police department. The 2006 White Springs

563Town Charter provided that “[n]either the council nor any

572council member shall interfere with the conduct of any

581department head, officer or an employee in the discharge of his

592or her duties.”

5954. On the evening of November 29, 2006, between 7:00 p.m. and 8:00 p.m., White Springs Police Officer Christopher Rexford initiated a traffic stop against Respondent because her automobile's tag light was out. The vehicle also matched the description of a vehicle that reportedly was transporting drugs

642in the White Springs vicinity.

6475. During the traffic stop, Respondent told Officer

655Respondent then told Officer Rexford, “That might not mean

664nothing to you now, but it will mean something in the morning

676because I know I wasn’t speeding.”

6826. When Officer Rexford explained that he had stopped her because her tag light was out, Respondent suggested to Officer

702Rexford that he had stopped her because she was “[d]riving while

713black,” and further informed him that that she had received 13

725calls about him. Officer Rexford perceived Respondent’s

732comments as a threat to his job for pulling her over on a

745traffic stop.

7477. Officer Rexford was polite during the traffic stop. He issued a written warning to Respondent for a defective tag

767light.

7688. The video and audio recordings made during the stop

778verify the statements made by Respondent, show that Respondent’s

787tag light was out, and demonstrate that the traffic stop was

798legitimate. Failure to have a tag light is a violation of

809Section 316.221(2), Florida Statutes (2006).

8149. After the stop, Respondent proceeded in her vehicle to the White Springs police station to speak to Chief Subic.

834Respondent arrived at the police station approximately ten

842minutes after the stop.

84610. Chief Subic met Respondent at the back door of the police station. Once inside the station, Respondent told Chief Subic that she thought that Officer Rexford stopped her because she was black. She also said that she thought Officer Rexford was targeting her vehicle because he thought it might be her husband driving. Respondent apparently believed Officer Rexford

905was looking for persons that might be driving while intoxicated.

91511. Respondent then redirected the conversation to a

923racial issue. She began telling Chief Subic about the number of

934oral complaints that she allegedly had received about Officer

943Rexford from the minority community in White Springs. At the

953time, Respondent was not aware of any written complaints that

963had been filed against Officer Rexford.

96912. During the conversation, Respondent told Chief Subic that she wanted him to fire Officer Rexford. Respondent stated that if Chief Subic did not fire Officer Rexford, she would have Chief Subic fired.

100213. Chief Subic tried to calm Respondent. He went out with Respondent to check the tag light on her vehicle. Chief Subic had Respondent start the vehicle and turn on the lights. Chief Subic then verified with Respondent that the tag light was

1045out and that Officer Rexford's traffic stop was legitimate.

1054Respondent then returned to her vehicle and drove away abruptly,

1064stirring up gravel.

106714. When Respondent got home that evening she called another Town Council member, Ralph Hardwick, and asked that a special Town Council meeting be scheduled. At the final hearing, Respondent suggested that her reason for calling the meeting was to discuss “concerns” with the police department.

1113The agenda for the meeting, however, suggests that it was called

1124to discuss “Citizen Complaints Made to Council Members Regarding

1133Police Department.”

113515. It takes two Council members to call a Town Council

1146meeting. Respondent used her position and authority, together

1154with Ralph Hardwick, to call the Town Council meeting.

116316. Once the meeting was scheduled, Respondent encouraged

1171citizens in person and in telephone calls to attend the meeting.

1182Respondent took this initiative even though she had no proof

1192that anyone had filed written complaints against Officer Rexford

1201or any other member of the White Springs Police Department.

121117. The special Town Council meeting was scheduled for December 6, 2006. Prior to the meeting, someone printed a flyer and distributed it all over the Town of White Springs. Respondent saw the flyer posted in town prior to receiving a

1252copy in her in-box. The flyer encouraged citizens to come to

1263the meeting and bring complaints against the Police Department.

127218. During the Town Council meeting, a number of citizens brought up verbal complaints about police traffic stops. The Town Attorney, Todd Kenyon, Esquire, then spoke at the meeting. Mr. Kenyon cautioned Council members that, although they could not stop citizens from talking, the rights of law enforcement officers and correctional officers set forth at Section 112.532,

1329Florida Statutes (2006), required that complaints against police

1337be in writing. Mr. Kenyon also advised the Council members that

1348Section 112.532, Florida Statutes (2006), contained

1354confidentiality provisions and prescribed how law enforcement

1361officers are supposed to be notified regarding complaints.

136919. None of the complaints discussed during the special Town Council meeting called by Respondent and Council member

1387Hardwick were in writing. In addition, there is no competent

1397evidence that the verbal complaints reflected in the minutes of

1407the meeting have a legitimate basis.

141320. Respondent testified that she called the special Town Council meeting because she was concerned about written complaints being filed but never acted upon. The minutes of the meeting do not reflect such a concern.

144821. There is no competent evidence to show that anyone

1458ever filed written complaints against Officer Rexford prior to

1467the time that Respondent decided to call the special meeting.

1477Respondent admitted at the final hearing that she had no proof

1488that there had been any written complaints filed against Officer

1498Rexford prior to the time she decided to call the meeting.

150922. The only recorded proof of any written complaint filed against Officer Rexford related to incidents that occurred after the December 6, 2006, Town Council meeting. The complainant,

1537Tracy Roberts, filed a written complaint against Office Rexford

1546on March 23, 2007. Ms. Robert’s written complaint against

1555Officer Rexford was investigated and found to be

1563unsubstantiated.

156423. Respondent submitted no persuasive evidence to support her contention that the November 29, 2006, traffic stop was

1582racially motivated. On the other hand, statistics of traffic

1591stops performed by Officer Rexford indicate that Officer Rexford

1600did not target African-Americans when making traffic stops for

1609the White Springs Police Department.

161424. Respondent did not have the power to unilaterally fire either Chief Subic or Officer Rexford. However, it is clear that individual Town Council members, because of their positions, have influence over Town employees.

164825. In this case, Respondent improperly invoked her position in confronting Officer Rexford during the traffic stop.

1665The un-rebutted testimony of Chief Subic also convincingly shows that Respondent further attempted to use her position when she told Chief Subic that if he did not fire Officer Rexford, she would fire Chief Subic. Finally, the weight of the evidence indicates that Respondent set up the special Town Council meeting to intimidate Officer Rexford and to retaliate against

1724Officer Rexford and the police department for the traffic stop.

173426. In sum, Respondent’s behavior and actions were

1742inconsistent with the proper performance of her public duties

1751She misused her position in violation of Section 112.313(6),

1760Florida Statutes.

1762CONCLUSIONS OF LAW

176527. The Division of Administrative Hearings has

1772jurisdiction over the parties and the subject matter of this

1782proceeding. See § 120.57(1), Fla. Stat. (2008).

178928. Section 112.322, Florida Statutes (2006), 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 (2006) (the Code of Ethics for Public Officers and Employees).

183329. The burden of proof, absent a statutory directive to

1843the contrary, is on the party asserting the affirmative of the

1854issue of the proceedings. Department of Transportation v.

1862J.W.C. Co., Inc. , 396 So. 2d 778 (Fla. 1st DCA 1981); Balino v.

1875Department of Health and Rehabilitative Services , 348 So. 2d 349

1885(Fla. 1st DCA 1977). In this proceeding, the Commission,

1894through its Advocate, is asserting the affirmative, i.e. that

1903Respondent violated Section 350.042, Florida Statutes (2006).

191030. Commission proceedings that seek recommended penalties

1917against a public officer or employee require proof of the

1927alleged violation(s) by clear and convincing evidence. See

1935Latham v. Florida Comm’n on Ethics , 694 So. 2d 83 (Fla. 1st DCA

19481997). Therefore, the Commission must establish its burden in

1957this case by clear and convincing evidence.

196431. "[T]he term 'public officer' includes any person elected or appointed to hold office in any agency, including any

1983person serving on an advisory body."

1989See § 112.313(1), Fla.

1993Stat. (2006). Section 112.312(2), Florida Statutes (2006),

200032. Section 112.313(6), Florida Statutes (2006), provides as follows:

2009MISUSE OF PUBLIC POSITION.-–No public

2014officer, employee of an agency, or local

2021government attorney shall corruptly use or

2027attempt to use his or her official position

2035or any property or resource which may be

2043within his or her trust, or perform his or

2052her official duties, to secure a special

2059privilege, benefit, or exemption for

2064himself, herself, or others. This section

2070shall not be construed to conflict with s.

2078104.31.

207933. The term "corruptly" is defined by Section 112.312(9),

2088Florida Statutes (2006), as follows:

2093(9) "Corruptly" means done with a

2099wrongful intent and for the purpose of

2106obtaining, or compensating or receiving

2111compensation for, any benefit resulting from

2117some act or omission of a public servant

2125which is inconsistent with the proper

2131performance of his or her public duties.

213834. The Commission met its burden in regard to the

2148following elements: (a) Respondent was a public officer;

2156(b) Respondent used or attempted to use her official position;

2166(c) Respondent's actions were taken to secure a special

2175privilege, benefit or exemption for herself; and (d) Respondent

2184acted corruptly as defined by statute.

219035. Respondent improperly invoked her position as a member of the White Springs Town Council during her confrontation with Officer Rexford during the traffic stop and in her demand that Chief Subic fire Officer Rexford. She also set up and encouraged citizens to attend the special Town Council meeting to intimidate Officer Rexford and to retaliate against him for the traffic stop.

225236. Respondent clearly acted with wrongful intent to

2260obtain a benefit that was inconsistent with her public duties.

2270As noted by the Commission in its Final Order and Public Report

2282in In re: Fred Peel , 15 F.L.A.R. 1187 (Fla. Comm'n on Ethics

22941992):

2295It is possible for the corrupt intent

2302required by the statute to be formed

2309instantaneously, and a premeditated plan for

2315securing a special benefit is not required

2322by the statute. Even a reflexive reaction

2329may rise to the level of corrupt intent,

2337depending on the circumstances.

2341See also In re: Lisa Marie Phillips , DOAH Case No. 05-1607EC

2352(February 1, 2006) (Recommended Order, p. 13, ¶ 33).

236137. The issue of intent is a matter for the trier of fact

2374to determine. See Dobry v. State , 211 So. 2d 603 (Fla. 3d DCA

23871968). Intent is seldom susceptible of direct proof but usually

2397is shown by circumstantial evidence. See Busch v. State , 466

2407So. 2d 1075 (Fla. 3d DCA 1984); Williams v. State , 239 So. 2d

2420127 (Fla. 4th DCA 1970). “Intent may be presumed from the facts

2432and circumstances surrounding the act.” See Board of Regents v.

2442Videon , 313 So. 2d 433 (Fla. 1st DCA 1975). Such is the case

2455here.

245638. In sum, the clear and convincing evidence presented at the final hearing established each of the requisite elements to prove that Respondent, as a member of the White Springs Town Council, violated Section 112.313(6), Florida Statutes (2006).

2494PENALTY

249539 . The penalties available against public officials who

2504misuse their positions include: impeachment, removal from

2511office, suspension from office, public censure and reprimand,

2519forfeiture of no more than one-third-salary for no more than 12

2530months, a civil penalty not to exceed $10,000, and restitution

2541of any pecuniary benefits. See § 112.317, Fla. Stat. (2006).

2551As Respondent is no longer in office, the available monetary

2561penalties are limited to $10,000 per violation and restitution.

257140. Respondent’s actions went well beyond a threat. After

2580telling Officer Rexford that she was a Town Council member and

2591warning him that he would find out who she was in the morning,

2604Respondent took immediate action by meeting with Officer

2612Rexford’s supervisor and demanding that Officer Rexford be

2620fired. That same evening, Respondent initiated a special Town

2629Council meeting in retaliation for the traffic stop. While

2638Respondent ultimately did not have the power to unilaterally

2647fire Officer Rexford or the Chief, there were no other

2657mitigating circumstances, and Respondent’s blatant use of her

2665official position to intimidate and retaliate cannot be ignored.

2674Considering other cases involving threats and intimidation, 2/ a

2683public reprimand and a civil penalty of seven thousand five

2693hundred dollars ($7,500) is reasonable and appropriate.

2701RECOMMENDATION

2702Based on the foregoing Findings of Fact and Conclusions of Law, it is:

2715RECOMMENDED:

2716That the Commission enter a final order finding that Respondent violated Section 112.313(6), Florida Statutes (2006), and imposing on her a public reprimand and a civil penalty in the amount of $7,500.

2749DONE AND ENTERED this 29th day of January, 2009, in

2759Tallahassee, Leon County, Florida.

2763S

2764SUZANNE F. HOOD

2767Administrative Law Judge

2770Division of Administrative Hearings

2774The DeSoto Building

27771230 Apalachee Parkway

2780Tallahassee, Florida 32399-3060

2783(850) 488-9675

2785Fax Filing (850) 921-6847

2789www.doah.state.fl.us

2790Filed with the Clerk of the

2796Division of Administrative Hearings

2800this 29th day of January, 2009.

2806ENDNOTES

28071/ While the Order Finding Probable Cause refers to Respondent

2817as a member of the White Springs “City” Council instead of

2828“Town” Council, the Charter introduced into evidence refers to

2837references to White Springs and its officials herein shall be

2847“Town” as opposed to “City.”

28522/ Five prior cases involving the use of a public position to

2864threaten or intimidate are: In re: Tom Ramiccio , 23 F.A.L.R.

2874895, 902 (Fla. Comm'n on Ethics 2000) [DOAH Case No. 00-265EC],

2885aff'd per curiam , 792 So. 2d 471 (Fla. 4th DCA 2001); In re:

2898Jimmy Whaley , 20 F.A.L.R. 2262 (Fla. Comm'n on Ethics 1997)

2908[DOAH Case No. 97-143EC]; In re: Al Paruas , DOAH Case No. 04-

29203831EC (Recommended Order, July 29, 2005); In re: Lisa Marie

2930Phillips , DOAH Case No. 05-1607EC (Recommended Order, February

29381, 2006); In re: Charles Dean , DOAH Case No. 07-0646EC

2948(Recommended Order, January 31, 2008).

2953COPIES FURNISHED :

2956James H. Peterson, III, Esquire

2961Office of the Attorney General

2966The Capitol, Plaza Level 01

2971Tallahassee, Florida 32399-1050

2974Charles Lynn Webb, Esquire

2978Charles L. Webb & Associates, LLC

29842900 Chamblee Tucker Road, Building One

2990Atlanta, Georgia 30341

2993Kaye Starling, Agency Clerk

2997Florida Commission on Ethics

30013600 Macclay Boulevard, South

3005Suite 201

3007Tallahassee, Florida 32312

3010Philip C. Claypool, General Counsel

3015Executive Director

3017Florida Commission on Ethics

30213600 Macclay Boulevard, South

3025Suite 201

3027Tallahassee, Florida 32312

3030NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

3036All parties have the right to submit written exceptions within

304615 days from the date of this Recommended Order. Any exceptions

3057to this Recommended Order should be filed with the agency that

3068will issue the Final Order in this case.

Select the PDF icon to view the document.
PDF
Date
Proceedings
PDF:
Date: 03/16/2009
Proceedings: Final Order filed.
PDF:
Date: 03/11/2009
Proceedings: Agency Final Order
PDF:
Date: 01/29/2009
Proceedings: Recommended Order
PDF:
Date: 01/29/2009
Proceedings: Recommended Order cover letter identifying the hearing record referred to the Agency.
PDF:
Date: 01/29/2009
Proceedings: Recommended Order (hearing held October 30, 2008). CASE CLOSED.
PDF:
Date: 12/15/2008
Proceedings: Advocate`s Proposed Recommended Order filed.
PDF:
Date: 12/15/2008
Proceedings: Respondent`s Proposed Recommended Order filed.
Date: 11/14/2008
Proceedings: Transcript filed.
Date: 10/30/2008
Proceedings: CASE STATUS: Hearing Held.
Date: 10/28/2008
Proceedings: CASE STATUS: Motion Hearing Held.
PDF:
Date: 10/28/2008
Proceedings: Advocate`s Response to Respondent`s Motion to Suppress filed.
PDF:
Date: 10/23/2008
Proceedings: Motion to Quash Deposition Subpoena or, in the Alternative, for a Protective Order filed.
PDF:
Date: 10/23/2008
Proceedings: Respondent`s Amendment to Joint Prehearing Stipulation filed.
PDF:
Date: 10/23/2008
Proceedings: Respondent`s Motion to Suppress filed.
PDF:
Date: 10/21/2008
Proceedings: Advocate`s Amendment to Joint Prehearing Stipulation filed.
PDF:
Date: 10/20/2008
Proceedings: Notice of Taking Depositions filed.
PDF:
Date: 10/15/2008
Proceedings: Unilateral Prehearing Statement filed.
PDF:
Date: 10/14/2008
Proceedings: Notice of Taking Deposition (2) filed.
PDF:
Date: 09/08/2008
Proceedings: Order Granting Continuance and Re-scheduling Hearing (hearing set for October 30 and 31, 2008; 10:00 a.m.; Lake City, FL).
PDF:
Date: 09/05/2008
Proceedings: Motion for Continuance of Final Hearing filed.
PDF:
Date: 09/03/2008
Proceedings: Unilateral Prehearing Statement filed.
PDF:
Date: 07/28/2008
Proceedings: Notice of Taking Deposition (C. Webb) filed.
PDF:
Date: 07/21/2008
Proceedings: Order Granting Continuance and Re-scheduling Hearing (hearing set for September 10 and 11, 2008; 10:00 a.m.; Lake City, FL).
PDF:
Date: 07/17/2008
Proceedings: Unopposed Motion for Continuance of Final Hearing filed.
PDF:
Date: 07/17/2008
Proceedings: Notice of Appearance of Counsel filed.
PDF:
Date: 06/30/2008
Proceedings: Order of Pre-hearing Instructions.
PDF:
Date: 06/30/2008
Proceedings: Notice of Hearing (hearing set for August 8, 2008; 10:00 a.m.; Lake City, FL).
PDF:
Date: 06/25/2008
Proceedings: Notice of Cancellation of Deposition (C. Udell-Ford) filed.
PDF:
Date: 06/20/2008
Proceedings: Notice of Taking Deposition (Coretta Udell-Ford) filed.
PDF:
Date: 06/19/2008
Proceedings: Joint Response to Initial Order filed.
PDF:
Date: 06/10/2008
Proceedings: Initial Order.
PDF:
Date: 06/09/2008
Proceedings: Determination of Investigative Jurisdiction and Order to Investigate filed.
PDF:
Date: 06/09/2008
Proceedings: Advocate`s Recommendation filed.
PDF:
Date: 06/09/2008
Proceedings: Order Finding Probable Cause filed.
PDF:
Date: 06/09/2008
Proceedings: Report of Investigation filed.
PDF:
Date: 06/09/2008
Proceedings: Complaint 06-277 filed.
PDF:
Date: 06/09/2008
Proceedings: Agency referral filed.

Case Information

Judge:
SUZANNE F. HOOD
Date Filed:
06/09/2008
Date Assignment:
06/10/2008
Last Docket Entry:
03/16/2009
Location:
Lake City, Florida
District:
Northern
Agency:
ADOPTED IN TOTO
Suffix:
EC
 

Counsels

Related DOAH Cases(s) (3):

Related Florida Statute(s) (9):

Related Florida Rule(s) (1):