08-002725EC
In Re: Coretta Udell-Ford vs.
*
Status: Closed
Recommended Order on Thursday, January 29, 2009.
Recommended Order on Thursday, January 29, 2009.
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 Floridas 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 wasnt 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 Respondents
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 Respondents
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. Roberts 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, Respondents 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 Commn 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. Respondents 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
2612Rexfords 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 Respondents 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
2828Town Council, the Charter introduced into evidence refers to
2837references to White Springs and its officials herein shall be
2847Town 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.
- Date
- Proceedings
- PDF:
- Date: 01/29/2009
- Proceedings: Recommended Order cover letter identifying the hearing record referred to the Agency.
- 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: 10/23/2008
- Proceedings: Motion to Quash Deposition Subpoena or, in the Alternative, for a Protective Order 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: 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: 06/30/2008
- Proceedings: Notice of Hearing (hearing set for August 8, 2008; 10:00 a.m.; Lake City, FL).
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
-
James H Peterson, III, Esquire
Address of Record -
Kaye B. Starling
Address of Record -
Charles Lynn Webb, Esquire
Address of Record