08-002354EC In Re: Evelyn Hammond vs. * Status: Closed Recommended Order on Thursday, November 6, 2008.

Summary: Mayor Hammond used her position to retaliate against Century Little League when that organization failed to hire her son as chief umpire.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

IN RE: EVELYN HAMMOND, ) Case No. 08-2354EC

)

Respondent. )

)

RECOMMENDED ORDER

This cause came on for final hearing before Harry L.

Hooper, Administrative Law Judge with the Division of

Administrative Hearings, on August 21 and 22, 2008, in

Pensacola, Florida.

APPEARANCES

For the 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

James J. Dean, Esquire

Messer, Caparello & Self, P.A.

2618 Centennial Place

Post Office Box 15579

Tallahassee, Florida 32317

STATEMENT OF THE ISSUE

The issue is whether Respondent violated the Code of Ethics

for Public Officers and Employees.

PRELIMINARY STATEMENT

The Florida Commission on Ethics (Commission) received

three sworn complaints from three citizens of Century, Florida,

on May 5, 2006; May 26, 2006; and June 12, 2006. The complaints

alleged that the mayor of Century, Respondent Evelyn Hammond

(Mayor Hammond), violated the anti-nepotism law by hiring three

relatives as employees of the town, gave her relatives

unwarranted raises, and permitted her son, Edward Hammond, to

receive utilities without paying for them. It was further

alleged that when her son, Eddie Hammond, was fired as chief

little league umpire for the Century Little League, Mayor

Hammond retaliated by removing the operation of the concession

stand at the little league park from the little league

organization and placed it under city operation.

A preliminary investigation was conducted by the

Commission. This was followed by a recommendation by the

Advocate that suggested there was probable cause that:

1. Mayor Hammond violated Subsection 112.313(6), Florida

Statutes (2005), by allowing her son to continue to receive

utility services from the town when his account was delinquent

or by directing that the late fees assessed against her son for

delinquent utility payments be dropped; and

2. That Mayor Hammond violated Subsection 112.313(6),

Florida Statutes (2005), by using her position to retaliate

against Century Little League for the special benefit of her

son.

The Commission, on June 13, 2007, entered an Order Finding

Probable Cause to believe Mayor Hammond committed the offenses

set forth above. Mayor Hammond demanded a public hearing. The

matter was forwarded to the Division of Administrative Hearings

and filed on May 13, 2008. It was duly set for hearing on

August 21 and 22, 2008, and was heard as scheduled in Pensacola,

Florida.

At the hearing, the Advocate presented the testimony of

seven witnesses and offered eight exhibits into evidence.

Respondent presented the testimony of two witnesses and offered

24 exhibits into evidence.

A Transcript was filed on September 18, 2008. Pursuant to

an Agreed Motion to Extend Time to File Proposed Recommended

Orders, the parties were ordered to file their proposed

recommended orders no later than 30 days subsequent to the

filing of the transcript. After the hearing, the Advocate and

Respondent filed their Proposed Recommended Orders on

October 20, 2008.

References to statutes are to Florida Statutes (2005)

unless otherwise noted.

FINDINGS OF FACT

The Parties

1. Mayor Hammond served as mayor of Century, Florida, from

2004 to 2008. All allegations are derived from this period.

Mayor Hammond did not have a vote on the Town Council, but was

the chief executive officer of the town. Before becoming mayor,

Mayor Hammond was a member of the Town Council. During the time

she was a member of the Town Council, Bennie Barnes was mayor.

He served from 2000 until 2004.

2. Pursuant to Section 112.320, Florida Statutes, the

Commission serves as the guardian of the standards of conduct

for the officers and employees of the state, and officers and

employees of counties, cities, or other political subdivisions

of the state.

Eddie Hammond's Utility Accounts

3. As chief executive of Century, Mayor Hammond had

supervisory authority over all town employees, including the

Town Clerk, and general supervisory authority of all departments

and agencies of the town. The town operates its own utilities,

including water, sewage, natural gas, and garbage collection.

Accordingly, Mayor Hammond exercised authority over these

activities.

4. Mayor Hammond had experience in determining the amount

of utility bills, preparing bills, collecting them, and causing

services to be terminated. She did this for the Town of Century

for ten years and for Gulf Power Company for 18 years.

5. During all times pertinent, Dorothy Sims was the Town

Clerk. Ms. Sims was Mayor Hammond's first cousin. The

supervisor of utility operations was Mayor Hammond's son, Eddie

Hammond. He had worked for the Town of Century for 26 years and

had been Superintendent of the Gas Department for about 20

years. His immediate supervisor was Town Clerk Sims.

6. Utility bills in Century are payable by the tenth of

the month, and a five dollar late charge is added on the

fifteenth, if the bill has not been paid. If a bill is not paid

by the twentieth day of the month, service is discontinued.

Eddie Hammond is often the person who shuts off the gas, should

a citizen fail to remit by the twentieth day.

7. Because Century is a small town and town officials know

most of its citizens and are aware of the needs of businesses,

from time to time service is not discontinued even though

payment is not made by the twentieth of the month. For

instance, if a person is ill or has some other problem meriting

an excuse, and is incapable of paying, Town Clerk Sims might

forgive disconnection, at least for a time.

8. In fact, numerous citizens on the utility "cut-off"

list had their accounts marked with an "H" or the word "Hold."

This meant that despite nonpayment, their utilities would not be

disconnected.

9. Beneficiaries of this policy included Saved Ministries,

Winn-Dixie, and Leola Robinson, for example. In fact,

Ms. Robinson was permitted a "hold" even though she owed

$2,111.78. The "hold" was based on delays in a "land review"

involving the placement of a mobile home. Another "hold"

resulted because of the time it took to settle an estate.

Another "hold" was placed because the citizen was ill.

10. On the delinquent list of October 21, 2005, 23 people

were given a "hold" notation instead of experiencing a cut-off

of services.

11. Eddie Hammond and Robert Tims did not pay their

utility bills for years, yet their accounts were marked with a

"hold." Eddie Hammond amassed a bill of $1,802.49 by October

2005 and Robert Tims grew his to $4,859.46 by October 2005, yet

neither had their utility services terminated. Nevertheless,

Eddie Hammond did not hesitate to pull the plug on citizens in a

less fortunate posture.

12. Eddie Hammond and Robert Tims were long-time employees

of Century. During the period 1969 to 2001, Ray Lawson was Town

Clerk, and during his incumbency he permitted some town

employees to pay their utilities through payroll deductions.

Eddie Hammond and Robert Tims were beneficiaries of this plan.

13. Rather than have their utility bills deducted from

their pay in an amount that reflected their actual bills, Town

Clerk Lawson deducted a set amount each week. In the case of

Eddie Hammond, $20.00 was deducted each week. Eddie Hammond was

never presented with a utility bill during this period. Robert

Tims had $35.00 deducted each week.

14. The sum deducted was often insufficient to cover the

cost of Eddie Hammond's utility bill and by the time Town Clerk

Lawson departed the position, Eddie Hammond owed several hundred

dollars.

15. The mayor of Century from 2000-2004 was Bennie Barnes.

In 2001, Town Clerk Lawson was replaced by Town Clerk Sims.

Although it was easy to determine how much money Eddie Hammond

and Robert Tims owed on their utility bills, Ms. Sims was unable

to determine how much money had been withheld from their pay.

16. When Town Clerk Sims became the incumbent, she found

the financial records of the town to be a "big mess," and they

remained that way for several years. The "mess" was created

when Town Clerk Lawson left because he had bad feelings toward

Mayor Barnes and the City Council and manifested these feelings

by locking his computer and scrambling the town's financial

records.

17. Town Clerk Sims could not determine how much, if any,

payroll had been applied to the utility bills of the two, and

Hammond and Tims did not know either. They were the only two

employees of Century in this position. Eddie Hammond was aware

that some of the money deducted was paid as child support. The

last payment made to his utility bill was July 9, 2001. By

October 4, 2001, deductions from his paycheck had been

discontinued. Mr. Tims' deduction continued.

18. By 2004, following Mayor Hammond's inauguration as

mayor, Town Clerk Sims continued to have over-all responsibility

as supervisor of utility services and continued carrying Tims

and Eddie Hammond in the "hold" category.

19. The office procedure with regard to utility payments

was that each month a printed list of delinquents was prepared

by Assistant Clerk Kristina Wood. She gave the list directly to

Town Clerk Sims who determined if a delinquent was to be awarded

a "hold." Mayor Hammond did not get involved in the decision to

terminate or not terminate anyone's utility services.

20. Mayor Hammond paid some of Eddie Hammond's bills,

other than his utility bills, because Mayor Hammond and Eddie

Hammond did not want his former wives to get involved in his

financial affairs. Mayor Hammond never saw Eddie Hammond's

utility bill and assumed that, because he worked for the city,

he paid it at his job. She was aware that he had money taken

from his paycheck because she had seen some of his pay stubs.

21. Eventually Mayor Hammond learned that Tims and Eddie

Hammond were on the cut-off list and made inquiry to Town Clerk

Sims. Mayor Hammond was informed about the payroll deductions

by Town Clerk Sims, who told her that the money to pay the

charges was present, but that she could not determine how much

money was available. As events unfolded, records were

discovered indicating the amounts withheld from Tims and Eddie

Hammond, but this occurred after Mayor Hammond paid Eddie

Hammond's bill.

22. In early 2006, some citizens took notice of the

unseemly situation where Eddie Hammond, the person who routinely

cut off peoples' natural gas for failure to timely pay their

utility bills, was himself avoiding his utility payment. His

failure to pay was about to provide grist for the local

journalist's mill. Mayor Hammond soon learned that the local

media were about to publicize the situation.

23. That moment was when Mayor Hammond concluded that

paying her son's utility bill was ". . . the right thing to do."

Accordingly, she wrote a personal check for the amount of the

bill, including late charges. This amount was $1,984.30. On

March 21, 2006, she took the check to the clerk's office and met

with Assistant Clerk Wood. Eddie Hammond was present.

24. Assistant Clerk Wood had a discussion with Mayor

Hammond regarding the late charges. She had removed the late

charges when Tims paid off his utility bill some time before

March 2006 and she informed Mayor Hammond of this. Mayor

Hammond told Assistant Clerk Wood to take the late charges off

Eddie Hammond's bill since they were removed from Tims' bill.

She believed her son should get the same consideration.

Assistant Clerk Wood did as directed by pulling up Eddie

Hammond's account on the computer and deducting $245.00.

25. Mayor Hammond further asserted that the town continued

to owe Eddie Hammond money from the deductions taken from his

pay. She wrote a new check for $1,739.30 and gave it to

Assistant Clerk Wood, and thereafter the account displayed a

zero balance.

26. The greater weight of the evidence demonstrates that

Mayor Hammond believed that the town owed Eddie Hammond some

amount of money, and at the time the transaction took place it

is clear that Century's accounts were in disarray to the extent

it was difficult to determine what, if anything, the town owed

Eddie Hammond. Her determination that her son should not pay

late fees because a similarly situated employee did not pay late

fees was not unreasonable.

27. In any event, the "policy" of allowing Eddie Hammond

to avoid paying his utility bills was in place prior to Mayor

Hammond's election and continued without her intervention until

the Spring of 2006. She did not intervene in the case of Robert

Tims or others who were not keeping up with their utility bills

either. Even though she had 28 years of utility billing

experience, she was remarkably incurious with regard to the

situation in the Town of Century. This is not, however, the

same as wrong-doing.

The Little League Concession Stand

28. Century Little League is controlled by a board of

directors. The president, from 2001 until the beginning of the

2006 baseball season, was Dabney Longhorne. In that capacity,

Mr. Longhorne supervised the registration of participants, the

scheduling of games, and oversaw the operation of the ballpark

where the games were played.

29. Since 2001, Showalter Park, a facility owned and

maintained by the Town of Century, has been the main ballpark at

which little league games were played. The facility has a

concession stand. Century Little League operated the concession

stand from 2001 through the beginning of the 2006 season.

30. Mr. Longhorne met with Mayor Hammond in January 2004

and again in January 2005 to discuss generally the relationship

between the town and the little league operation. To the extent

the concession stand was discussed during these meetings, the

tenor was that it was expected that the little league operation

would run it and use the profits generated from it.

31. Mr. Longhorne's wife ran the concession stand, and

once Mr. Longhorne mentioned to Mayor Hammond that she was

getting weary of running it. He never said the little league

was contemplating turning the stand over to the Town of Century

or otherwise abandoning the operation of the stand.

32. The profit generated by the concession stand was

important to the financial well-being of Century Little League.

The money was used to pay umpires, among other expenses.

33. For a number of years prior to the 2006 season, Eddie

Hammond moonlighted as chief umpire of the Century Little

League. He was paid $35.00 to $45.00 for each game and was paid

from $2.00 to $4.50 as a booking fee for each umpire he arranged

for the little league games. One of the umpires Eddie Hammond

employed was his father, Ray Hammond.

34. In January 2006 while planning for the up-coming

season, Mr. Langhorne and Eddie Hammond had a discussion.

During that discussion Eddie Hammond suggested he could make

more money umpiring elsewhere. He advised he could make more

money umpiring in Brewton, Alabama, for example.

35. At the Century Little League Board meeting on

Saturday, January 21, 2006, Eddie Hammond's comments were

relayed to the board. The board thereafter voted to hire

someone else as chief umpire. When Eddie Hammond learned of

this he became angry.

36. These events were discussed in the Hammond household.

On Tuesday, January 24, 2006, Eddie Hammond called Mr. Langhorne

on his cellphone and expressed his anger and, moreover,

suggested that retaliation was in the offing. Later that day,

Ray Hammond, Eddie Hammond's father, called Mr. Langhorne and

left a message asking that his call be returned.

37. Mr. Langhorne did not immediately call Ray Hammond

because he determined, correctly, that he might be upset and

that in the interval of a couple of days, calm might prevail.

When he did call Ray Hammond on Thursday of the same week,

Mr. Hammond informed him that the action was a "slap in the

face" and that, "Century Little League will be getting a letter

from the town stating what will be expected of them."

38. On February 6, 2006, Mayor Hammond, during the Century

Town Council meeting, recommended that the town take over the

concession stand at Showalter Park. She stated that she had

already found someone to operate it and that the profits from it

would help pay for the light bill at the park. She also made

this recommendation because she was angry at Dabney Langhorne.

She did not, however, reveal this to the Century Town Council.

39. Century Little League had received no prior notice of

this recommendation and no one from the little league was

present at the council meeting. No one spoke against the

recommendation. The recommendation was put into the form of a

motion by Councilperson McMurray, and everyone on the council

voted in favor.

40. Mayor Hammond stated at the hearing that the reason

for her action was that she believed Century Little League did

not want to operate the stand.

41. Subsequently, Mayor Hammond wrote a letter to

Mr. Langhorne dated February 8, 2006. It informed Mr. Langhorne

that the Town of Century was taking over the operation of the

concession stand. The letter stated that, "We feel this will

defray some of the cost of running the parks." The letter also

discussed maintenance matters and addressed the cost of lighting

for night practices. It also fulfilled Ray Hammond's pledge

that Langhorne would be "getting a letter."

42. Clearly the community considered Mayor Hammond's

actions to be motivated by revenge. During the 2006 little

league season, they boycotted the concession stand. As a

result, the concession stand was operated at a loss.

43. In light of all the facts and circumstances revealed

by the evidence in this case, including the inconsistent

statements made by Mayor Hammond with regard to her reasons for

taking the concession stand from the Century Little League, it

is concluded that her actions were motivated solely by a desire

to avenge the failure of Century Little League to re-employ her

son.

CONCLUSIONS OF LAW

44. The Division of Administrative Hearings has

jurisdiction over the subject matter of and the parties to this

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

45. Section 112.322, Florida Statutes, and Florida

Administrative Code Rule 34-5.0015, authorize the Commission on

Ethics to conduct investigations and to make public reports on

complaints concerning violations of Part III, Chapter 112,

Florida Statutes (the Code of Ethics for Public Officers and

Employees).

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

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

issue. See Fla. Dep't of Transp. v. J. W. C. Co. , 396 So. 2d

778 (Fla. 1st DCA 1981); and Balino v. Department of Health &

Rehabilitative Services , 348 So. 2d 349 (Fla. 1st DCA 1977) . In

this proceeding it is the Commission, through its Advocate, that

is asserting the affirmative.

47. The Advocate must prove the allegations by clear and

convincing evidence. See Latham v. Florida Commission on

Ethics , 694 So. 2d 83 (Fla. 1st DCA 1997). Clear and convincing

evidence was defined by the Florida Supreme Court in Slomowitz

v. Walker , 429 So. 2d 797, 800, as follows:

We therefore hold that clear and

convincing evidence requires 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.

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

follows:

(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.104.31.

49. An analysis of Subsection 112.313(6) Florida Statutes,

and Subsection 112.312(9), Florida Statutes, which defines

"corruptly," demonstrates that in order to conclude that Mayor

Hammond violated Subsection 112.313(6), Florida Statutes, the

following elements must be proven by clear and convincing

evidence:

a. that Mayor Hammond was a public

officer or employee of an agency; and that

b. she used or attempted to use her

official position or any property or

resource which was within her trust, or

performed her official duties, such that

c. her actions were done with an

intent to secure a special privilege,

benefit, or exemption for herself or others;

and

d. that Mayor Hammond's actions were

done "corruptly," that is,

(1) done with a wrongful intent, and

also

(2) done for the purpose of benefiting

from some act or omission which was

inconsistent with the proper performance of

public duties. In re: Eli Tourgeman , Case

No. 93-5183EC (DOAH April 29, 1994.)

Eddie Hammond's Utility Account

50. With regard to the issue of Eddie Hammond's utility

account, it is clear that Mayor Hammond was a public officer

during the time that her son Eddie Hammond was allowed to

receive utilities without paying for them. However, she did not

use her position to benefit her son. The privilege he enjoyed

originated prior to Mayor Hammond's term; it was continued

during Mayor Hammond's term through inaction or confusion in the

Town Clerk's office; and when Mayor Hammond made inquiry, she

was told that Eddie Hammond probably had funds on account

sufficient to pay all or part of the bill.

51. Mayor Hammond paid the bill to avoid embarrassment.

She did not pay the late charges or require that Eddie Hammond

pay them. However, it was Eddie Hammond's bill, not hers, and

she was under no obligation to pay it, and was under no

obligation to pay the late charges. To the extent she forgave

Eddie Hammond's late charges, she was doing so in consonance

with the prior judgment, made by the Town Clerk (or persons in

her office), to forgive late charges in cases where payroll

deductions were taken from employees.

52. She did not use her position to obtain anything. She

did not take any action with an intent to secure a special

privilege, benefit, or exemption for herself or her son, and

consequently did not act corruptly.

The Little League Concession Stand

53. Mayor Hammond was a public officer when action was

taken by the Town Council that resulted in the concession stand

operation being removed from the purview of Century Little

League.

54. She used her official position with the intent to

secure a special benefit for herself or her son, Eddie Hammond.

The benefit secured was the punishment of Dabney Langhorne and

the Century Little League for failing to employ Eddie Hammond as

chief umpire.

55. Her actions in this regard were done with a wrongful

intent. Her actions were also inconsistent with the proper

performance of her public duties. These acts were done

corruptly as that term is defined in Subsection 112.312(9),

Florida Statutes.

RECOMMENDATION

Based upon the Findings of Fact and Conclusions of Law,

it is

RECOMMENDED that the Florida Commission on Ethics dismiss

the allegation that Evelyn Hammond used her position to allow

her son, Edward Hammond, to receive utilities without paying for

them; and that the Florida Commission on Ethics enter a final

order and public report finding that Respondent, Evelyn Hammond,

violated Subsection 112.313(6), Florida Statutes, by using her

position to retaliate against the Century Little League and its

president, Dabney Longhorne, and issuing a public censure and

reprimand.

DONE AND ENTERED this 6th day of November, 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 6th day of November, 2008.

COPIES FURNISHED :

Mark Herron, Esquire

Messer, Caparello & Self, P.A.

2618 Centennial Place

Post Office Box 15579

Tallahassee, Florida 32317

James H. Peterson, III, Esquire

Office of the Attorney General

The Capitol, Plaza Level 01

Tallahassee, Florida 32399-1050

Kaye Starling, Agency Clerk

Florida Commission on Ethics

Post Office Drawer 15709

Tallahassee, Florida 32317-5709

James J. Dean, Esquire

Messer, Caparello & Self, P.A.

2618 Centennial Place

Post Office Box 1876

Tallahassee, Florida 32308

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.