08-003482EC In Re: Gary Siplin vs. * Status: Closed Recommended Order on Monday, July 20, 2009.

Summary: The Commission on Ethics Advocate met its burden of proof; Respondent violated the Code of Ethics.

STATE OF FLORIDA Case No. 08-3482EC

DIVISION OF ADMINISTRATIVE HEARINGS

IN RE: GARY SIPLIN, RECOMMENDED ORDER ) )

)

Respondent. )

Pursuant to notice, a final hearing was conducted in this

case on May 19, 2009, in Tallahassee, Florida, before

Administrative Law Judge R. Bruce McKibben of the Division of

Administrative Hearings.

APPEARANCES

For Advocate: James H. Peterson, III, Esquire

Office of the Attorney General

The Capitol, Plaza Level 01

Tallahassee, Florida 32399-1050

For Respondent: Mark Herron, Esquire

Messer, Caparello & Self, P.A.

2618 Centennial Place

Post Office Box 15579

Tallahassee, Florida 32317

STATEMENT OF THE ISSUE

The issue in this case (as stipulated to by the parties) is

whether Respondent, Gary Siplin, violated Subsection 112.313(6),

Florida Statutes (2008), 1 by using his position as state senator

to bully a deputy sheriff into yielding to Respondent's desire

to access a football stadium parking lot by way of a barricaded

route.

PRELIMINARY STATEMENT

A Complaint naming Respondent was filed with the Florida

Commission on Ethics (the "Commission") by Marcus Robinson on

December 1, 2006. The Complaint alleged that Respondent, Gary

Siplin, a state senator, attempted to use his position as a

member of the Florida Legislature to avoid or circumvent a

posted traffic blockade. The Commission conducted a preliminary

investigation of the matters set forth in the Complaint and

issued its Report of Investigation on February 22, 2007. Based

upon the findings in the initial investigation, an Advocate's

Recommendation was issued on March 15, 2007, by the Advocate for

the Florida Commission on Ethics (the "Advocate") recommending

that the Commission find probable cause concerning the

allegations in the Complaint. The Commission issued an Order

Finding Probable Cause dated August 1, 2007.

The Commission then forwarded the Complaint and related

materials to the Division of Administrative Hearings ("DOAH")

for the purpose of conducting the mandated public hearing on the

allegations and the Commission's findings.

At the public hearing held at the date and place set forth

above, the Advocate presented the testimony of three witnesses:

Senator Gary Siplin, Respondent; Deputy First Class Marcus

Robinson, Orange County Sheriff's Department; and Deputy

Corporal James J. Russell, Orange County Sheriff's Department.

The Advocate's Exhibits 1 through 4 were admitted into evidence.

Respondent testified on his own behalf and also called his wife,

Victoria Pierre-Siplin. Respondent's Exhibits 1 and 2 were

admitted into evidence. Respondent asked for and received

official recognition of Sections 30.073 and 30.49, Florida

Statutes, and Chapter 89-507, Laws of Florida.

At the conclusion of the public hearing, the parties

advised that a transcript of the hearing would be ordered. The

parties requested and were given 30 days from the date the

transcript was filed at DOAH to submit proposed findings of fact

and conclusions of law. The Transcript was filed on June 3,

2009, and each party timely submitted Proposed Findings of Fact

and Conclusions of Law.

FINDINGS OF FACT

1. Respondent is currently serving as a state senator for

the State of Florida. He has been in the Florida Senate since

his initial election in 2002. Prior to that, Respondent served

two years in the Florida House of Representatives. Respondent

is a lawyer licensed in the State of Florida. His legal

business involves the areas of litigation and general practice.

At all times relevant to this proceeding, Respondent was a state

senator.

2. On November 18, 2006, Respondent went to a football

game being held at the Florida Citrus Bowl site in Orlando,

Florida. Respondent was not an alumnus of either of the two

schools playing in that game: Bethune-Cookman University and

Florida A & M University. Rather, he was attending the game

pursuant to an invitation from a group who wanted other

attendees to interact with public officials. Respondent had

attended this football game on several prior occasions as a

guest of the event planners.

3. Respondent and his wife had picked up a package

containing their football tickets and a parking pass the night

prior to the game. The parking ticket provided a parking spot

in close proximity to the stadium. The parking ticket had a map

and directions on its reverse side showing how to access the

parking area. On the day of the game, Respondent, his wife,

sister-in-law, and a niece proceeded to the game.

4. The parking ticket's directions indicated that

Respondent should drive east on Carter Street and then turn left

onto Rio Grande Avenue to access the designated parking area.

As he was going down Carter Street toward his turn, Respondent

asked for directions and was told by a police officer/deputy to

proceed further east on Carter before turning. Respondent

proceeded to Rio Grande Avenue to turn north. However, when

Respondent (driving his wife's 2003 Volvo SUV) turned left on

Rio Grande Avenue, there was a traffic barrier saying "Road

Closed." The traffic organizers had decided to close Rio Grande

Avenue due to the large amount of pedestrian traffic expected on

that road prior to the game.

5. Respondent pulled his vehicle up to the road barrier

and rolled down his window just as a Hispanic female law

enforcement officer approached. Respondent identified himself

to the officer as "Senator Gary Siplin." The female officer

purportedly told Respondent that the parking lot was full.

However, the officer did not testify, and there was no

non-hearsay evidence presented as to what the officer actually

said to Respondent.

6. After the female officer walked away, Deputy Robinson

approached Respondent's vehicle. Again, Respondent identified

himself as "Senator Gary Siplin." 2 Respondent and his wife

remember Robinson also telling them that the parking lot was

full. Robinson maintains he never told them the lot was full,

only that they could not proceed down Rio Grande Avenue because

it was being used for pedestrian traffic.

7. At this point in time, it was approximately 1:00 p.m.,

some three or four hours prior to kickoff for the football game.

It is, as Respondent testified, highly unlikely the parking lot

would be full at that time. In fact, a picture taken by

Respondent's sister-in-law upon their arrival indicates that the

lot was essentially empty. 3 Therefore, it makes no sense that

the law enforcement officers would tell Respondent the lot was

full. The deputy's testimony is more credible on the issue of

whether Respondent was told that the lot was full.

8. Respondent was told to back his vehicle onto Carter

Street and proceed east for approximately two blocks for access

to the parking lot. Respondent refused to move his vehicle. He

was told at least three or four more times to move the vehicle,

but continued to refuse the order. After several refusals,

Respondent began to get angry and raised his voice. At that

point, Robinson radioed his supervisor, Corporal Russell.

9. Russell, who was at a post a couple of blocks away from

the Carter/Rio Grande intersection, walked over to respond to

Robinson's call. Once he arrived, Russell was briefed by

Robinson, who told him the following:

The vehicle at the barrier was being driven by Gary

Siplin, a state senator.

Siplin had asked several times to speak to Robinson's

supervisor.

Siplin had been told to proceed down Carter Street to the next entrance to the parking area, but had refused

several times.

Robinson had decided to issue several citations to

Siplin for infractions, including the refusal to obey

traffic laws and failure to wear a seat belt.

10. After being briefed by Robinson, Russell approached

Respondent's vehicle and introduced himself as Robinson's

supervisor. Respondent introduced himself as "Senator Gary

Siplin." Respondent told Russell that Robinson would not let

him through the barrier. Russell explained again to Respondent

why Rio Grande Avenue was closed, i.e., that there was too much

pedestrian traffic in the area to safely allow vehicles on that

road. Russell asked Respondent to move his vehicle down Carter

Street for two blocks to the next parking lot entrance, but

Respondent refused. Corporal Russell remembers telling

Respondent that a handicapped parking lot was full, but did not

tell Respondent that his designated lot was full.

11. Respondent continued to ask for a supervisor. Russell

then called his supervisor, Lieutenant Boynes, on his radio.

Russell cannot remember if Respondent asked him to call Boynes

or whether he did so at his own volition. However, upon talking

with Boynes and discussing the situation, Russell opted to allow

Respondent through the barricade, rather than placing him under

arrest (his other option under the circumstances).

12. Russell opined it was better not to place Respondent

under arrest, because it "[p]robably would not be good for our

agency or probably good for him or probably good for the Citrus

Bowl people who were present there that day." Russell allowed

Respondent through the barrier and had him pull over to await

the citations that Robinson was writing.

13. It is unclear why Respondent refused to obey the

traffic signs and failed to yield to the law enforcement

officers' directions. Although his parking pass indicated that

Rio Grande Avenue was the route to take, there is no indication

that Respondent believed such written instructions superseded

traffic laws or officers' instructions. Even if Respondent was

being erroneously told that the lot was full, he provided no

rational basis for disobeying the law or the instructions from

law enforcement officers.

14. Robinson ultimately issued only one citation to

Respondent, i.e., for refusal to obey traffic laws. The

citation was challenged by Respondent in traffic court and

appealed after it was upheld by the traffic court. After filing

the appeal, Respondent paid the fine imposed by the court. That

is, Respondent ultimately acknowledged violation of traffic laws

during the incident discussed above. 4

15. Russell remembers Respondent asking him to call the

Orange County Sheriff, Kevin Beary. Russell remembers

Respondent saying that he had Sheriff Beary's telephone number

programmed into his cell phone. However, Respondent testified

that he and the sheriff were political enemies and that he would

never have called him. If so, it would not have been in his

best interest to call the sheriff under the circumstances extant

at that time. If there was indeed enmity between the two men,

Respondent's testimony is more credible on this point.

16. At some point in the discussion between Robinson and

Respondent, the issue of Robinson's job came up. It is unclear

who raised the issue or whether it was made as a threat from

Respondent or, conversely, as a challenge by Robinson. The

testimony on that subject is contradictory. Mrs. Siplin says

that Robinson asked, "So, do you want my job?", but Robinson

says Respondent stated, "I'll have your job." There is not

sufficient evidence to make a clear finding of fact on this

issue. However, taken in light of all the facts and the

demeanor of the witnesses, it is more likely that Respondent

threatened Robinson than that Robinson brought up the subject as

a challenge to Respondent.

17. No vehicles were allowed through the barrier other

than the one driven by Respondent. Other cars attempted to

travel north on Rio Grande Avenue throughout the day, but they

were all redirected back to Carter Street. Only Respondent was

allowed through the barrier (for the reasons set forth above).

18. A few days after the football game, Robinson met with

other law enforcement officers to discuss the situation

involving Respondent. Robinson asked for advice as to whether

he should file an ethics complaint against Respondent. A

discussion ensued, opinions were gathered, and Robinson (on his

own accord), ultimately, decided to file a complaint. The

complaint was not filed on behalf of the Orange County Sheriff's

Office or the City of Orlando. It is a complaint by a

self-described concerned citizen (Robinson).

19. Respondent testified under oath that despite serving

one term of office in the Florida House of Representatives and

being elected three times to the Florida Senate, he was unaware

of, had never read, and doesn't remember ever being given

educational training about the Code of Ethics for Public

Officers and Employees (the "Code"). Respondent stated only

that, "I've heard about it. I haven't seen it."

20. In the Joint Prehearing Stipulation filed in this

matter, Respondent acknowledged that he is subject to the Code.

However, he stated under oath at final hearing that "I don't

know what I stipulated to. The lawyer does. I don't know."

The incredulity of this testimony (especially coming from a

member of the Florida Bar and a public officer) makes

Respondent's statements concerning other facts about the

incident less believable. To the extent Respondent's testimony

contradicts facts stated by other witnesses, his testimony is

given less weight.

21. When asked specifically whether he believed the Code

would prohibit him from using his position to influence others

or gain a privilege, Respondent would only say, "Like I said, I

haven't read the Code of Ethics, you know, so that's my

response." Again, Respondent indicates a clear absence of

knowledge about the Code or its authority over a person in his

position.

22. Respondent seemed nonplussed about the charges against

him, stating that he could not even remember what he was charged

with in this matter. Nor could Respondent remember what he said

under oath during the preliminary ethics investigation

underlying the instant case.

23. Further, Respondent could not remember if he attended

traffic court to contest the traffic citations (although it was

established in the record that he did so and paid the fine which

had been imposed). He could not remember the two deputies when

they stood up at the final hearing (but remembered what they

allegedly told him concerning the parking lot being full). His

complete lack of recall of the events makes it difficult to give

any of his testimony much weight.

24. In his testimony, Respondent's testimony was not

precise and explicit. Respondent was confused about the facts

in issue. Upon a comparative consideration of the demeanor of

the witnesses, the context of the statements, and the undisputed

facts, it is difficult to give any degree of certainty to the

testimony of Respondent.

CONCLUSIONS OF LAW

25. The Division of Administrative Hearings has

jurisdiction over the parties to and the subject matter of this

proceeding pursuant to Subsection 120.57(1), Florida Statutes.

26. 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, i.e., the Code.

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

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

issue in the proceedings. Department of Transportation v.

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

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

(Fla. 1st DCA 1977). In the present action, the Commission--

through its Advocate--is asserting the affirmative of the issue,

i.e., that Respondent violated provisions of Subsection

112.313(6), Florida Statutes.

28. Within the Code, Subsection 112.313(6), Florida

Statutes, states as follows:

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. 104.31.

29. The term "corruptly" is defined in Subsection

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 public servant which is

inconsistent with the proper performance of

his or her public duties.

30. A public officer is defined as "any person elected or

appointed to hold office in any agency, including any person

serving on an advisory body." § 112.313(1), Fla. Stat.

Respondent clearly falls within the definition of public

officer.

31. A public servant is defined in Subsection 838.014(6),

Florida Statutes, as:

(a) Any officer or employee of a state,

county, municipal, or special district

agency or entity;

(b) Any legislative or judicial officer or

employee; . . . .

Respondent is a public servant for purposes of this proceeding.

32. Commission proceedings that seek recommended penalties

against a public officer or employee require proof of the

alleged violations(s) by clear and convincing evidence. See

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

1997). The clear and convincing evidence standard is the

Commission's standard of proof in this case.

33. Clear and convincing evidence is an intermediate

standard of proof which is more than the "preponderance of the

evidence" standard used in most civil cases, but less than the

"beyond a reasonable doubt" standard used in criminal cases.

See State v. Graham , 240 So. 2d 486 (Fla. 2d DCA 1970).

Further, clear and convincing evidence has been defined as

evidence which:

[R]equires that the evidence must be found

to be credible; the facts to which the

witnesses testify must be distinctly

remembered; the testimony must be precise

and explicit and the witnesses must be

lacking in confusion as to the facts in

issue. The evidence must be of such weight

that it produces in the mind of the trier of

fact a firm belief or conviction, without

hesitancy, as to the truth of the

allegations sought to be established.

Slomowitz v. Walker , 429 So. 2d 797, 800 (Fla. 1st DCA 1983).

(Citations omitted)

34. The Commission has, by clear and convincing evidence,

established that Respondent:

Is a public servant and a public official;

Did identify himself as a state senator for the purpose of seeking to avoid or circumvent a traffic barrier;

Attempted to gain an advantage or special benefit solely

on the basis of his position as a public official; and

Acted corruptly as defined by statute.

35. Respondent made it a point to advise each law

enforcement officer with whom he came into contact on

November 18, 2006, of his position, i.e., a state senator. It

is apparent that Respondent acted with wrongful intent to obtain

a benefit, albeit, very minute in the scheme of things, for

himself and his family members (wife, sister-in-law and niece).

36. Further, Respondent's willful refusal to obey traffic

laws and the instructions given by uniformed law enforcement

officers was contrary to his obligations under the Code. Such

behavior is wrong for any citizen and is especially egregious

for a member of the Legislature and a practicing attorney.

37. It is the duty of the Florida Senate to punish or

expel its members. Art. III, §§ 2 and 4, Fla. State Constit.

The Commission on Ethics has the initial responsibility of

investigating complaints against public officials and, upon a

finding of violation, forwarding its findings to the Legislature

for final action. See § 112.324(4), Fla. Stat. In the instant

case, the Commission made a finding of probable cause and, then,

utilized DOAH to conduct the final fact-finding element of their

investigation.

38. Respondent argues that the holding in Florida

Commission on Ethics v. Plante , 369 So. 2d 332 (Fla. 1979),

divests jurisdiction of this case from the Commission on Ethics

and, by extension, from DOAH. Respondent argues that Subsection

112.324(4), Florida Statutes, requiring the Commission to

recommend a penalty to the Legislature, no longer has force and

effect. It is the opinion of the undersigned Administrative Law

Judge that Respondent's reading of Plante is erroneous.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that a final order be entered by the Commission

on Ethics finding that Respondent, Gary Siplin, violated the

Code of Ethics for Public Officers and Employees and that a

penalty of censure, public reprimand, and attendance at

continuing education concerning the Ethics Code is warranted;

also, that a recommendation be forwarded to the State

Legislature for imposition of an appropriate sanction.

DONE AND ENTERED this 20th day of July, 2009, in

Tallahassee, Leon County, Florida.

R. BRUCE MCKIBBEN

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 20th of July, 2009.

ENDNOTES

1/ Unless otherwise stated, all references to the Florida

Statutes shall be to the 2008 codified version.

2/ Robinson already knew who Respondent was because Respondent

was the senator in Robinson's home district; Respondent had

recently been on the news, etc.

3/ At final hearing, Respondent could not positively identify

himself in the photograph, but stated the picture had been taken

immediately upon arrival in the parking lot as evidence that the

lot was not full. Respondent's credibility on this point is

questionable.

4/ A second citation for failure to wear a seatbelt was going to

be issued, but Respondent's wife explained to the officer that

Respondent had only removed his seatbelt in order to get his

driver's license from his wallet. That citation was not issued.

COPIES FURNISHED

:

Philip C. Claypool, Executive Director

Florida Commission on Ethics

3600 Macclay Boulevard, South

Suite 201

Post Office Drawer 15709

Tallahassee, Florida 32317-5709

James H. Peterson, III, Esquire

Office of the Attorney General

The Capitol, Plaza Level 01

Tallahassee, Florida 32399-1050

Linzie Bogan, Esquire

Office of the Attorney General

The Capitol, Plaza Level 01

Tallahassee, Florida 32399-1050

Kaye Starling, Agency Clerk

Florida Commission on Ethics

3600 Macclay Boulevard, South, Suite 201

Post Office Drawer 15709

Tallahassee, Florida 32317-5709

Mark Herron, Esquire

Messer, Caparello & Self, P.A.

2618 Centennial Place

Post Office Box 15579

Tallahassee, Florida 32317

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.