11-002309EC In Re: Frank Peterman, Jr. vs. *
 Status: Closed
Recommended Order on Friday, December 30, 2011.


View Dockets  
Summary: Respondent made excessive trips to St. Petersburg, his primary residence.

1STATE OF FLORIDA

4DIVISION OF ADMINISTRATIVE HEARINGS

8IN RE: FRANK PETERMAN, JR. , )

14) Case No. 11 - 2309EC

20Respondent . )

23)

24RECOMMENDED ORDER

26Pursuant to notice, a final hearing was held in this case

37on Octobe r 13, 2011, in Tallahassee, Florida, and on October 19,

492011, in St. Petersburg, Florida, before Susan Belyeu Kirkland,

58an Administrative Law Judge of the Division of Administrative

67Hearings.

68APPEARANCES

69The Advocate: Diane L. Guillemette, Esquire

75Office of the Attorney General

80The Capitol, Plaza Level 01

85Tallahassee, Florida 32399 - 1050

90For Respondent: Mark Herron, Esquire

95Messer, Caparello and Self, P.A.

1002618 Centennial Place

103Post Office Box 15579

107Tallahassee, Florida 32317

110STATEMENT OF THE ISSUE

114The issue in this case is whether Respondent, while serving

124as Secretary of the Department o f Juvenile Justice (DJJ) ,

134violated section 112.313(6), Florida Statutes (2007 - 2009), 1/ by

144incurring excessive travel costs between St. Petersburg and

152Tallahassee, Florida, after receiving reasonable notice and

159admonition from the Governor's administration that the travel

167was excessive.

169PRELIMINARY STATEMENT

171On October 8, 2010, the Florida Commission on Ethics

180(Commission) entered an Order Finding Probable Cause to believe

189that Respondent, Frank Peterman, Jr. (Mr. Peterman), as

197Secretary of DJJ , violated sec tion 112.313(6). The case was

207forwarded to the Division of Administrative Hearings on May 9,

2172011, for assignment to an Administrative Law Judge to conduct

227the final hearing.

230The case was originally assigned to Administrative Law

238Judge Lisa Shearer Nelson , but was transferred to Administrative

247Law Judge Susan Belyeu Kirkland, formerly Susan B. Harrell.

256At the final hearing, the Advocate called the following

265witnesses: Mary Elizabeth Grimes, William Rich, Jenna Wright,

273Eric Eikenberg (Mr. Eikenberg), Judge Lori Rowe (Judge Rowe),

282Corrine Brown (Ms. Brown) , and Mr. Peterman. Advocate's

290Exhibits 1 through 10 2/ were admitted in evidence.

299At the final hearing, Mr. Peterman called Timothy Ben

308Niermann as his witness. Respondent's Exhibit 1 was admitted in

318evid ence.

320Official recognition was taken of section 112.061, Florida

328Statutes (2008, 2009, & 2010); sections 20.316, 20.317, 20.19,

337943.03, and 20.41, Florida Statutes (2010); chapter 2009 - 15,

347section 2, page 170, Laws of Florida; and chapter 2009 - 82,

359section 58, page 23, Laws of Florida.

366The Transcript of the portion of the final hearing held on

377October 13, 2011, was filed on October 27, 2011. The Transcript

388of the portion of the final hearing held on October 19, 2011,

400was filed on November 3, 2011. The par ties agreed to file their

413proposed recommended orders on or before December 7, 2011. The

423parties' p roposed r ecommended o rders were timely filed and have

435been considered in the preparation of this Recommended Order.

444FINDINGS OF FACT

4471. Mr. Peterman served as the Secretary of DJJ from

457February 17, 2008, until January 5, 2011. Prior to his

467appointment as Secretary of DJJ, Mr. Peterman served as a member

478of the Florida House of Representatives.

4842. During his appointment, Mr. Peterman maintained his

492primary residence in St. Petersburg, Florida, where his family

501resided, and he was the pastor of The Rock of Jesus Missionary

513Baptist Church. As pastor, Mr. Peterman was responsible for the

523general oversight of the church , preaching , counseling and

531ministering to the members of the church , and performing

540marriages, funerals, and other duties. In addition to his

549residence in St. Petersburg, Mr. Peterman maintained a separate

558residence in Tallahassee, Florida.

5623. As Secretary of DJJ, Mr. Peterman had an office in

573St. Petersburg (the Wildwood office) and an office in

582Tallahassee (the Tallahassee office). The Tallahassee office

589was considered headquarters for Mr. Peterman. Ms. Brown , his

598assistant, worked in the Wildwood office, and her duties

607included setting appo intments for Mr. Peterman, scheduling, and

616maintaining Mr. Peterman's calendar. Mr. Peterman had a staff

625person in Tallahassee with similar duties.

6314. Mr. Peterman treated the Wildwood office as a satellite

641office for the Secretary of DJJ. He felt that he had the

653approval of the Governor's o ffice to use such an arrangement;

664however, neither the Governor's C hief of S taff nor the D eputy

677C hief of S taff assigned to DJJ was aware of any approval by the

692Governor's office for a satellite. Both would have been aware

702if such approval had been given.

7085. As Secretary of DJJ, Mr. Peterman was assigned a fleet

719automobile and a gas card. Mr. Peterman was responsible for

729filling out the travel logs, which would show the date of the

741trip, the destination, mileage, and fuel charges. Driving a

750fleet car would be cheaper than flying.

7576. At the time Mr. Peterman was appointed as Secretary of

768DJJ, Mr. Eikenberg was the Governor's Chief of Staff. There

778were three Deputy Chiefs of Staff, who reported to

787Mr. Eikenberg. Eac h Deputy Chief of Staff was responsible for a

799portion of the agencies that reported to the Governor. Each

809Deputy Chief of Staff would monitor the actions of his or her

821assigned agencies and report to the Chief of Staff concerning

831those agencies. As Deput y Chief of Staff, Judge Rowe was

842assigned DJJ.

8447. While Judge Rowe was Deputy Chief of Staff, she

854counseled Mr. Peterman at least four or five times on his

865travel. She had concerns about his flying to St. Petersburg and

876the failure of his calendar to ref lect a direct agency purpose

888on his frequent trips to St. Petersburg. Judge Rowe advised

898Mr. Peterman to use the most economical means of transportation

908when traveling to St. Petersburg, which was by automobile, and

918to make sure that his calendar reflecte d the activities in which

930he was engaged related to DJJ business. Mr. Peterman appeared

940to understand what Judge Rowe was conveying to him; however,

950Judge Rowe did not see any noticeable change in the pattern of

962his behavior. Judge Rowe left the Governor 's office in August

9732009.

9748. Mr. Peterman appointed Bonnie Roberts ( Ms. Roberts ) as

985the Chief of Staff of DJJ. She served in that position until

997March 2009. As Chief of Staff of DJJ, she acted as a liaison

1010between the Deputy Chief of Staff of the Govern or's Office and

1022DJJ. She was responsible for the administrative functions at

1031DJJ.

10329. In August 2008, Ms. Roberts along with the other senior

1043management staff participated in a retreat in order to develop a

1054policy for DJJ regarding restricting travel due to budgetary

1063concerns. One of the issues discussed was that travel needed to

1074be "mission critical."

107710. On January 29, 2009, Mr. Peterman issued a memorandum

1087to the executive leadership team of DJJ concerning mission

1096critical travel. The memorandum prov ided that all travel

1105vouchers must contain an explanation describing how the travel

1114activity was critical to the agency's mission. It further

1123provided:

1124Mission critical travel is considered

1129necessary to perform job functions that if

1136not conducted would ha ve an adverse impact

1144to the health, welfare, and safety of the

1152youth in the Department's care and would

1159interfere in the Department's ability to

1165carry out its mission. E very effort must be

1174made to ensure that travel:

1179· Is planned to maximize resources;

1185· Limits the need for overnight travel;

1192· Is necessary and appropriate with the

1199needs of the position and job functions; and

1207· Utilizes teleconferencing and video

1212conferencing technologies to the extent

1217possible.

121811. On February 10, 2009, Mr. Peterman sent another

1227memorandum revising the January 29, 2009, memorandum. The new

1236memorandum identified mission critical travel and the approval

1244process to be used for reimbursement for travel expenses. The

1254new memorandum incorporated the definition of mission critical

1262travel quoted above and also required that requests for

1271reimbursement had to explain why the business for which the

1281travel expense was incurred could not have been conducted by

1291electronic means.

129312. Ms. Roberts became concerned about Mr. Peterma n's

1302travel between Tallahassee and the St. Petersburg - Tampa area.

1312She discussed the issue with Judge Rowe, who told Ms. Roberts to

1324counsel Mr. Peterman concerning his travel, particularly his air

1333travel between Tallahassee and the St. Petersburg - Tampa are a.

1344She talked with Mr. Peterman and reminded him that he needed to

1356restrict his air travel and take a car when traveling to and

1368from the St. Petersburg - Tampa area. She advised Mr. Peterman

1379that his frequent trips to St. Petersburg were causing low

1389morale , because other employees' travel was being restricted.

139713. When Ms. Roberts resigned as Chief of Staff of DJJ,

1408she was replaced by Kelly Layman ( Ms. Layman ) . Ms. Roberts told

1422Ms. Layman that Mr. Peterman's travel was an issue of concern

1433with the Governo r's o ffice. Ms. Layman also became concerned

1444about Mr. Peterman's frequent trips to St. Petersburg. His

1453absences from Tallahassee were perceived by senior staff as a

1463lack of leadership, thereby causing low morale. Ms. Layman also

1473counseled Mr. Peterman concerning his travel to and from

1482St. Petersburg. Mr. Peterman's mode of travel was switched

1491primarily to automobile, but the frequency of travel did not

1501diminish.

150214. Ms. Brown was responsible for keeping Mr. Peterman's

1511calendar concerning his activitie s in the Wildwood office.

1520The calendar reflected appointments or meetings in the

1528St. Petersburg - Tampa area during the following days in 2008:

1539April 24, May 23, June 6, June 13, June 27, August 7, August 14,

1553September 18, September 25, October 17, October 30, December 4,

1563and December 11. The calendar showed meetings and appointments

1572in the St. Petersburg - Tampa area during the following days in

15842009: January 15, January 29, February 2, February 6,

1593February 13, March 13, March 19, March 26, May 18, June 2,

1605August 6, August 31, September 9, September 10, September 11,

1615September 23, September 25, September 28, October 1, October 13,

1625October 16, November 6, November 9, November 10, November 13,

1635November 18, December 4, December 11, and December 18 .

164515. The fol lowing is a summary of Mr. Peterman's state -

1657paid tr avels between Tallahassee and the St. Petersburg - Tampa

1668area during the years 2008 and 2009 based on the travel records

1680that were admitted in evidence :

1686DATE TRAVEL [ 3 /] MODE PURPOSE COST

16942 - 18 - 08 TP - TL CAR R FIRST DAY ON JOB $29.24

17092 - 20 - 08 TL - TP AIR TO JJ FOUNDATION $555.00

17222 - 21 - 08 TP - TL AIR FROM JJ FOUNDATION

17342 - 26 - 08 TP - TL AIR ADOLESCENCE CONFERENCE $245.50

17462 - 29 - 08 TL - TP AIR " STATE BUSINESS " $560.00

17583 - 3 - 08 TP - TL AIR $560.00

17683 - 6 - 08 TL - TP AIR DJJ WILD WOOD OFFICE $248.50

17823 - 24 - 08 TL - SP CAR

17913 - 27 - 08 TL - SP CAR

18003 - 31 - 08 SP - TL CAR

18094 - 23 - 08 TL - TP AIR BLUE COMMITTEE ROLL - OUT $469.00

1824FALKENBERG VISIT

1826T.V. INTERVIEW

18284 - 28 - 08 TP - TL AIR RETURN TO HEADQUARTERS

18405 - 2 - 08 TL - TP AIR "AIRPORT DESTINATION" $469.00

18525 - 4 - 08 TL - SP CAR

18615 - 5 - 08 SP - TL CAR RETURN TO HEADQUARTERS

18735 - 12 - 08 TL - SP CAR

18825 - 14 - 08 SP - TL CAR

18915 - 14 - 08 TL - TP AIR WORK IN DISTRICT OFFICE $221.50

19055 - 19 - 08 TL - SP CAR

19145 - 20 - 08 TL - TP AIR WORK IN DISTRICT OFFICE $234.50

19285 - 21 - 08 SP - TL CAR

19375 - 27 - 0 8 TP - TL AIR RETURN TO HEADQUARTERS $234.50

19516 - 9 - 08 TP - TL R.CAR RETURN TO HEADQUARTERS $86.68

19646 - 23 - 08 TL - TP R.CAR RETURN TO HEADQUARTERS $109.09

19777 - 30 - 08 TP - TL AIR RETURN $248.50

19888 - 7 - 08 TL - TP AIR MEETING AT DIST OFFICE $269.50

20028 - 19 - 08 TP - TL AIR RETURN TO HEADQUARTERS $269.50

20158 - 22 - 08 TL - TP AIR WORK IN WILDWOOD OFFICE $702.00

20298 - 25 - 08 TP - TL AIR RETURN TO TALLAHASSEE

20418 - 26 - 08 TL - TP AIR WORK IN WILDWOOD OFFICE $630.00

20559 - 2 - 08 TP - TL AIR RETURN TO HEADQUARTERS

20679 - 9 - 08 TP - TL AIR RETURN TO HEADQUARTERS $721.00

20809 - 11 - 08 TL - TP AIR WORK IN WILDWOOD OFFICE

20939 - 17 - 08 TL - TP AIR WORK IN WILDWOOD OFFICE $668.00

21079 - 22 - 08 TP - TL AIR RETURN TO HEADQUARTERS

21199 - 29 - 08 TP - TL AIR RETURN TO HEADQUARTERS $407.50

21329 - 30 - 08 TL - TP AIR WORK IN WILDWOOD OFFICE

214510 - 8 - 08 TL - TP AIR WORK IN WILDWOOD OFFICE $551.98

215910 - 14 - 08 TP - TL AIR RETURN TO HEADQUARTERS

217110 - 15 - 08 TL - TP AIR WORK IN WILDWOOD $240.50

218410 - 20 - 08 TP - TL AIR RETURN TO HEADQUARTERS $269.50

219710 - 29 - 08 TL - TP AIR WORK AT WILDWOOD $271.50

221011 - 5 - 08 TP - TL AIR RETURN TO HEADQUARTERS $ 482.00

222411 - 7 - 08 TL - TP AIR WORK AT WILDWOOD

223611 - 18 - 08 TP - TL AIR RETURN TO HEADQUARTERS $550.98

224911 - 19 - 08 TL - TP AIR WORK AT WILDWOOD

226112 - 11 - 08 TL - TP AIR WORK AT WILDWOOD $531.00

227412 - 15 - 08 TP - TL AIR RETURN TO HEADQUARTERS

228612 - 17 - 08 TL - TP AIR WORK AT WILDWO OD $647.00

230012 - 29 - 08 TP - TL AIR RETURN TO HEADQUARTERS

23121 - 7 - 09 TP - TL AIR WORK AT WILDWOOD $572.19

23251 - 13 - 09 TP - TL AIR RETURN TO HEADQUARTERS

23371 - 14 - 09 TL - TP AIR WORK AT WILDWOOD $621.19

23501 - 15 - 09 TP - TL AIR RETURN TO HEADQUARTERS

23621 - 16 - 09 TL - TP AIR WORK AT W ILDWOOD $289.59

23761 - 26 - 09 TP - TL AIR RETURN TO HEADQUARTERS $511.19

23891 - 27 - 09 TL - TP AIR SITE VISIT AVON PARK $147.00

24032 - 3 - 09 TP - TL AIR RETURN TO HEADQUARTERS $237.01

24162 - 6 - 09 TP - TL AIR WORK AT WILDWOOD $200.60

24292 - 16 - 09 TP - TL AIR RETURN TO HEADQUARTERS $200.59

24422 - 20 - 09 TL - TP AIR ATTEND CONFERNECE IN TP $531.19

24562 - 24 - 09 TP - TL AIR RETURN TO HEADQUARTERS

24683 - 16 - 09 TP - TL AIR RETURN TO HEADQUARTERS $266.60

24813 - 25 - 09 TL - TP AIR WORK IN WILDWOOD $481.69

24943 - 30 - 09 TP - TL AIR RETURN TO HEADQUARTERS

25064 - 16 - 09 TL - TP AIR HDQTRS TO DISTRICT OFFICE $556.19

25204 - 21 - 09 TP - TL AIR RETURN TO HEADQUARTERS

25324 - 24 - 09 TL - TP AIR $294.60

25425 - 1 - 09 TL - TP AIR TL TO DISTRICT OFFICE $269.60

25565 - 7 - 09 SP - TL CAR

25655 - 7 - 09 TL - TP AIR TL TO DISTRICT OFFICE $269.60

25795 - 12 - 09 TP - TL AIR TO HEADQUARTERS $511.1 9

25925 - 14 - 09 TL - TP AIR TO DISTRICT

26035 - 26 - 09 TP - TL CAR TO TALLY

26145 - 27 - 09 TL - SP CAR

26236 - 9 - 09 SP - TL CAR

26326 - 12 - 09 TL - SP CAR

26416 - 16 - 09 SP - TL CAR

26506 - 18 - 09 TL - SP CAR

26596 - 24 - 09 SP - TL CAR

26687 - 2 - 09 TL - SP CAR

26777 - 7 - 09 SP - TL CAR

26867 - 28 - 09 TP - TL AIR $286.60

26967 - 30 - 09 TL - TP AIR $266.60

27068 - 10 - 09 TP - TL CAR

27158 - 14 - 09 TL - TP CAR

27248 - 21 - 09 TL - TP AIR $269.60

27349 - 1 - 09 SP - TL CAR

27439 - 3 - 09 TL - SP CAR

27529 - 21 - 09 TP - TL AIR $439.19

27629 - 29 - 09 SP - TL CAR

27719 - 30 - 09 TL - SP CAR

278010 - 6 - 09 SP - TL CAR R HOME TO HEADQUARTERS

279310 - 7 - 09 TL - SP CAR HOME TO DISTRICT OFFICE

280610 - 14 - 09 TP - TL AIR $295.60

281610 - 15 - 09 TL - TP AIR $269.60

282610 - 23 - 09 TL - SP CAR

283511 - 18 - 09 TP - TL AIR $511.20 [ 4 /]

284811 - 19 - 09 TL - TP AIR

285711 - 23 - 09 SP - TL CAR

286612 - 1 - 09 SP - TL CAR

287512 - 3 - 09 TL - SP CAR

288412 - 8 - 09 SP - TL CAR

289312 - 10 - 09 TL - SP CAR

290212 - 15 - 09 SP - TL CAR

291112 - 17 - 09 TL - SP CAR

292012 - 29 - 09 SP - TL CAR

292916. For the months of February through April 2008 , July

2939through December 2008 , and January through April 2009, there are

2949gaps in the daily vehicle usage log so th at the purpose of all

2963the trips taken cannot be ascertained from the records. Based

2973on the mileage that was recorded , some of the trips were not

2985local trips. In some months , there is no mileage recorded

2995except at the beginning and the end of the month, b ut the

3008difference in the mileage shows that travel did occur in that

3019month.

302017. Because of the poor record keeping, the travel records

3030do not account for some travel; yet, there had to have been

3042travel between Tallahassee and the St. Petersburg - Tampa area .

3053For instance, Mr. Peterman' s records show a trip from Tampa to

3065Tallahassee on February 24, 2009, and the next trip does not

3076occur until March 7, 2009, when he traveled from Tampa to Miami.

3088There is no explanation of how he got to Tampa from Tallahassee .

3101In March 2008, his records show that he traveled from

3111Tallahassee to Tampa by air on March 6, from Tallahassee to

3122St. Petersburg by car on March 24, and from Tallahassee to

3133St. Petersburg by car on March 27. Because of the gaps in the

3146car travel record s, it is impossible to tell how he got to

3159Tallahassee after his March 6 travel to Tampa and his March 24

3171travel to St. Petersburg.

317518. On February 29, 2008, a Friday, Mr. Peterman traveled

3185from Tallahassee to Tampa, arriving in Tampa after 5:00 p.m. He

3196t raveled back to Tallahassee on Monday, March 3, 2008, arriving

3207at 7:55 a.m. The airfare was $560.00. The stated purpose was

"3218State Business," with no further elaboration. There was

3226nothing on Mr. Peterman's calendar that showed state business

3235was being conducted. Since Mr. Peterman arrived after the close

3245of business on Friday and return ed before the beginning of the

3257business day on Monday, the trip was not for state business and

3269was for the purpose of Mr. Peterman returning to his primary

3280residence.

328119 . On Friday, May 2, 2008, Mr. Peterman flew from

3292Tallahassee to Tampa, arriving at 7:25 p.m. The purpose of the

3303trip was designated as "Airport Destination." The vehicle

3311travel log shows that he traveled by car from Tallahassee to

3322St. Petersburg on Sund ay, May 4, 2008. On Monday, May 5, 2008,

3335he flew back to Tallahassee, leaving at 10:25 a.m. and arriving

3346at 11:20 a.m. The cost of the round - trip ticket was $469.00,

3359and the cost of parking was $36.00. On his voucher for

3370reimbursement, Mr. Peterman stat ed that he worked in the

3380St. Petersburg office. Given the time that it would take to get

3392from St. Petersburg to Tampa to catch a 10:25 a.m. flight, there

3404would be no time to work in the Wildwood office , and the

3416calendar showed no work . It is not understa ndable why the

3428travel records also show a car trip to St. Petersburg on May 4,

34412008, but whether Mr. Peterman went by airplane or automobile,

3451the trip was not for state business and was for the purpose of

3464Mr. Peterman returnin g to his primary residence.

347220 . On Friday, August 22, 2008, Mr. Peterman flew from

3483Tallahassee to Tampa, arriving at 3:50 p.m. The cost of the

3494airline ticket was $702.00, and the cost of parking was $36.00.

3505On Monday, August 25, 2008, Mr. Peterman flew back to

3515Tallahassee, arriving at 12:12 a.m. His calendar did not

3524reflect that he did any business at the Wildwood office from

3535August 22 to 25, 2008. The purpose of the trip was to return to

3549his primary residence. On August 26, 2008, Mr. Peterman

3558returned to Tampa, arriving at 3:50 p .m. He stated in his

3570travel voucher request that the purpose was to work in the

3581Wildwood office. His calendar did not reflect any work

3590performed in St. Petersburg on August 26, 2008.

359821. On January 13, 2009, Mr. Peterman flew from Tampa to

3609Tallahassee, and flew back from Tallahassee to Tampa on

3618January 14, 2009. The following day, January 15, 2009,

3627Mr. Peterman flew from Tampa to Tallahassee and returned to

3637Tampa by air on January 16, 2009. His calendar showed that he

3649had two appointments at the Wildwo od office on January 15, 2009.

366122. On March 28, 2009, a Saturday, Mr. Peterman flew from

3672Miami to Tampa rather than to Tallahassee. He took a 7:00 a.m.

3684flight on Monday, March 30, 2009, to Tallahassee. The trip to

3695Tampa from Miami was to return to his p rimary residence as

3707evidenced by his early morning flight to Tallahassee on

3716March 30, 2009. Thus, the flight to Tallahassee would not have

3727been incurred except for his desire to spend the weekend at his

3739St. Petersburg home.

374223. On Saturday, September 19, 2009, Mr. Peterman, flew

3751from Miami to Tampa, rather than fly to Tallahassee. On Monday,

3762September 21, 2009, Mr. Peterman took a 10:05 a.m. flight to

3773Tallahassee, and returned to Tampa on a 6:15 a.m. flight. It

3784can only be concluded that Mr. Peterman fl ew to Tampa on

3796September 19, 2009, in order to return to his primary residence

3807and not for state business based on his morning flight to

3818Tallahassee on September 21, 2009. Thus, the cost of the flight

3829to Tallahassee would not have been incurred except for his

3839desire to spend the weekend at his St. Petersburg home.

384924. Mr. Peterman claimed that while he was at the Wildwood

3860office that he met with children and parents of children

3870concerning the care provided by DJJ, met with staff in the

3881various facilities in the middle region of Florida, and talked

3891with persons waiting in the lobby of his office. However,

3901Mr. Peterman's calendar does not account for a large amount of

3912the time that he purportedly spent at the Wildwood office, and

3923his testimony was vague, ch aracterized by generalities rather

3932than in specifics. The evidence established that Mr. Peterman

3941made a concerted effort to make sure that he spent his weekends

3953in St. Petersburg where he had his primary residen ce and was

3965pastor of a church.

3969CONCLUSIONS O F LAW

397325. The Division of Administrative Hearings has

3980jurisdiction over the parties to and the subject matter of this

3991proceeding. §§ 120.569 & 120.57, Fla. Stat. (2011).

399926. The Advocate has the burden to establish the

4008allegations in the Administrative Complaint by clear and

4016convincing evidence. Dep't of Banking & Fin. v. Osborne Stern &

4027Co. , 670 So. 2d 932 (Fla. 1996); Latham v. Fl a . Comm'n on

4041Ethics , 694 So. 2d 83 (Fla. 1st DCA 1997).

405027. In Slomowitz v. Walker , 429 So. 2d 797 (Fla. 4th DCA

40621983), th e court developed a working definition of "clear and

4073convincing evidence," which has been adopted by the Florida

4082Supreme Court in In re Davey , 645 So. 2d 398 (Fla. 1994). The

4095court in Slomowitz stated:

4099[C]lear and convincing evidence requires

4104that the evi dence must be found to be

4113credible; the facts to which the witnesses

4120testify must be distinctly remembered; the

4126testimony must be precise and explicit and

4133the witnesses must be lacking in confusion

4140as to the facts in issue. The evidence must

4149be of such we ight that it produces in the

4159mind of the trier of fact a firm belief or

4169conviction, without hesitancy, as to the

4175truth of the allegations sought to be

4182established.

4183Slomowitz , 429 So. 2d at 800.

418928. The Advocate has alleged that Mr. Peterman violated

4198sec tion 112.313(6), which provides:

4203MISUSE OF PUBLIC POSITION. -- No public

4210officer, employee of an agency, or local

4217government attorney shall corruptly use or

4223attempt to use his or her official position

4231or any property or resource which may be

4239within his or he r trust, or perform his or

4249her official duties, to secure a special

4256privilege, benefit, or exemption for

4261himself, herself, or others. This section

4267shall not be construed to conflict with s.

4275104.31.

427629. The term "corruptly" is defined in section 112.312( 6)

4286as follows:

"4288Corruptly" means done with a wrongful

4294intent and for the purpose of obtaining, or

4302compensating or receiving compensation for,

4307any benefit resulting from some act or

4314omission of a public servant which is

4321inconsistent with the proper performa nce of

4328his or her public duties.

433330. The Advocate has established by clear and convincing

4342evidence that Mr. Peterman violated section 112.313(6). As

4350Secretary of DJJ, Mr. Peterman was a public officer.

4359Mr. Peterman used his position as Secretary of DJJ to travel to

4371his primary residence at state expense when there was no state

4382purpose for the travel.

438631. Such action is inconsistent with his duties as

4395Secretary of DJJ. He was advised by Judge Rowe, Ms. Roberts,

4406and Ms. Layman to cut back on his travel a nd to at least travel

4421by car rather than airplane when going to St. Petersburg.

4431Mr. Peterman sent out memoranda to his Executive Leadership team

4441advising that travel needed to be restricted because of

4450budgetary constraints; however, he continued to travel to

4458St. Petersburg by air and , in some instances , for no other

4469reason than to be home on the weekends. Such actions show that

4481he corruptly used his position to get home at state expense.

449232. Mr. Peterman's travel between Tallahassee and

4499St. Petersburg dur ing 2008 and 2009 was excessive.

4508Mr. Peterman's travel records do not support a state - business

4519need for the amount of time that Mr. Peterman spent in

4530St. Petersburg. It can only be concluded that the majority of

4541the travel to St. Petersburg was to assure that Mr. Peterman

4552spent his weekends in St. Petersburg with his family and to

4563pastor at his church. While it is commendable that Mr. Peterman

4574wanted to spend time with his family and church, it should not

4586have be en done with taxpayer dollars.

4593RECOMMENDATI ON

4595Based on the foregoing Findings of Fact and Conclusions of

4605Law, it is RECOMMENDED that the Florida Commission on Ethics

4615enter a f inal o rder and p ublic r eport finding that Mr. Peterman

4630violated section 112.313(6) and recommending a civil penalty of

4639$5,00 0 .00 together with a public censure and reprimand.

4650DONE AND ENTERED this 30th day of December , 2011 , in

4660Tallahassee, Leon County, Florida.

4664S

4665SUSAN BELYEU KIRKLAND

4668Administrative Law Judge

4671Division of Administrative Hearin gs

4676The DeSoto Building

46791230 Apalachee Parkway

4682Tallahassee, Florida 32399 - 3060

4687(850) 488 - 9675

4691Fax Filing (850) 921 - 6847

4697www.doah.state.fl.us

4698Filed with the Clerk of the

4704Division of Administrative Hearings

4708this 30th day of December , 2011 .

4715ENDNOTES

47161/ Un less otherwise indicated, all references to the Florida

4726Statutes are to the 2009 version.

47322/ Two of the Advocate's exhibits were entered as Advocate's

4742Exhibit 9.

47443 / Respondent traveled to and from the following cities:

4754Tallahassee (TL), Tampa (TP), an d St. Pete (SP). "R" means

4765rental.

47664 / Mr. Peterman apparently reimbursed DJJ for $483.20 for this

4777trip.

4778COPIES FURNISHED :

4781Mark Herron, Esquire

4784Messer, Caparello and Self, P.A.

47892618 Centennial Place

4792Post Office Box 15579

4796Tallahassee, Florida 32317

4799D iane L. Guillemette, Esquire

4804Office of the Attorney General

4809The Capitol, Plaza Level 01

4814Tallahassee, Florida 32399 - 1050

4819Kaye B. Starling, Agency Clerk

4824Florida Commission on Ethics

48283600 Maclay Boulevard, South, Suite 201

4834Post Office Drawer 15709

4838Tallahass ee, Florida 32317 - 5709

4844Virlindia Doss, Executive Director

4848and General Counsel

4851Florida Commission on Ethics

48553600 Maclay Boulevard, South, Suite 201

4861Post Office Drawer 15709

4865Tallahassee, Florida 32317 - 5709

4870NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

4876All par ties have the right to submit written exceptions within

488715 days from the date of this Recommended Order. Any exceptions

4898to this Recommended Order should be filed with the agency that

4909will issue the Final Order in this case.

Select the PDF icon to view the document.
PDF
Date
Proceedings
PDF:
Date: 02/14/2012
Proceedings: Agency Final Order and Public Report filed.
PDF:
Date: 02/14/2012
Proceedings: Exceptions to Recommended Order filed.
PDF:
Date: 02/08/2012
Proceedings: Agency Final Order
PDF:
Date: 12/30/2011
Proceedings: Recommended Order
PDF:
Date: 12/30/2011
Proceedings: Recommended Order cover letter identifying the hearing record referred to the Agency.
PDF:
Date: 12/30/2011
Proceedings: Recommended Order (hearing held October 13 and 19, 2011). CASE CLOSED.
PDF:
Date: 12/07/2011
Proceedings: Advocate's Proposed Recommended Order filed.
PDF:
Date: 12/07/2011
Proceedings: Respondent's Proposed Recommended Order filed.
Date: 11/03/2011
Proceedings: Transcript (not available for viewing) filed.
Date: 10/27/2011
Proceedings: Transcript of Proceedings (not available for viewing) filed.
Date: 10/19/2011
Proceedings: CASE STATUS: Hearing Held.
Date: 10/13/2011
Proceedings: CASE STATUS: Hearing Partially Held; continued to October 19, 2011; 9:00 a.m.; St. Petersburg, FL.
PDF:
Date: 10/13/2011
Proceedings: Respondent's Motion in Limine to Exclude Summary filed.
PDF:
Date: 10/13/2011
Proceedings: Respondent's Motion to Dismiss Complaint and Order Finding Probable Cause filed.
PDF:
Date: 10/10/2011
Proceedings: Amended Notice of Hearing (hearing set for October 13, 2011; 9:00 a.m.; Tallahassee, FL; and October 19, 2011; 9:00 a.m.; St. Petersburg, FL; amended as to hearing dates and St. Petersburg location).
Date: 10/07/2011
Proceedings: CASE STATUS: Pre-Hearing Conference Held.
PDF:
Date: 10/07/2011
Proceedings: Return of Service (Corrine Brown) filed.
PDF:
Date: 10/07/2011
Proceedings: Return of Service (Timothy Niermann) filed.
PDF:
Date: 10/07/2011
Proceedings: Return of Service (Roderick Love) filed.
PDF:
Date: 10/07/2011
Proceedings: Order Taking Official Recognition.
PDF:
Date: 10/05/2011
Proceedings: Amended Notice of Taking Deposition (of R. Butterworth) filed.
PDF:
Date: 10/05/2011
Proceedings: Notice of Cancellation of Taking Deposition (of B. Butterworth) filed.
PDF:
Date: 10/04/2011
Proceedings: Advocate's Unilateral Pre-hearing Statement filed.
PDF:
Date: 10/04/2011
Proceedings: Advocate's Notice of Florida Laws filed.
PDF:
Date: 10/04/2011
Proceedings: Advocate's Notice of Intention to Use Summary filed.
PDF:
Date: 10/03/2011
Proceedings: Return of Service (J. Parker) filed.
PDF:
Date: 10/03/2011
Proceedings: Respondent's Motion for Judicial Notice filed.
PDF:
Date: 10/03/2011
Proceedings: Respondent's Pre-hearing Statement filed.
PDF:
Date: 09/30/2011
Proceedings: Second Amended Notice of Taking Deposition (of R. Butterworth, Jr) filed.
PDF:
Date: 09/30/2011
Proceedings: Notice of Filing Answers to First Set of Interrogatories filed.
PDF:
Date: 09/29/2011
Proceedings: Notice of Cancellation of Deposition (of B. Butterworth) filed.
PDF:
Date: 09/29/2011
Proceedings: Amended Notice of Taking Deposition (of R. Butterworth) filed.
PDF:
Date: 09/28/2011
Proceedings: Order Granting Motion to Bifurcate Hearing.
PDF:
Date: 09/28/2011
Proceedings: Amended Notice of Hearing (hearing set for October 11, 2011; 9:00 a.m.; St. Petersburg, FL; and Ocotber 13, 2011; 9:00 a.m.; Tallahassee, FL; amended as to Hearing date and locations).
PDF:
Date: 09/27/2011
Proceedings: Response to Advocate's First Request for Production of Documents filed.
PDF:
Date: 09/26/2011
Proceedings: Motion to Bifurcate Hearing filed.
PDF:
Date: 09/19/2011
Proceedings: Notice of Service filed.
PDF:
Date: 09/16/2011
Proceedings: Amended Notice of Taking Deposition (of F. Peterman) filed.
PDF:
Date: 09/16/2011
Proceedings: Notice of Taking Deposition (of F. Peterman) filed.
PDF:
Date: 09/13/2011
Proceedings: Order on Motion to Compel.
Date: 09/12/2011
Proceedings: CASE STATUS: Motion Hearing Held.
PDF:
Date: 08/31/2011
Proceedings: Advocate's Response to Respondent's Motion to Compel and Motion for Notice of Specific Charges filed.
PDF:
Date: 08/30/2011
Proceedings: Return of Service (R. Butterworth) filed.
PDF:
Date: 08/29/2011
Proceedings: Motion to Compel Responses to Specific Interrogatories in the First Interrogatories to Commission on Ethics or, in the Alternative, Motion for Notice of Specific Charges filed.
PDF:
Date: 08/29/2011
Proceedings: Order Granting Motion for Leave to Take Depositions by Telephone.
PDF:
Date: 08/26/2011
Proceedings: Notice of Service filed.
PDF:
Date: 08/24/2011
Proceedings: Notice of Advocate's Response to Respondent's Interrogatories filed.
PDF:
Date: 08/17/2011
Proceedings: Notice of Deposition Upon Written Questions filed.
PDF:
Date: 08/15/2011
Proceedings: Motion for Leave to Take Depositions of Shane Strum and Rod Love by Telephone filed.
PDF:
Date: 08/11/2011
Proceedings: Order Granting Motion for Protective Order.
Date: 08/11/2011
Proceedings: CASE STATUS: Motion Hearing Held.
PDF:
Date: 08/11/2011
Proceedings: Notice of Taking Deposition of Agency Representative of the Office of the Inspector General Pursuant to Rule 1.310(b)(6) and Notice to Produce filed.
PDF:
Date: 08/11/2011
Proceedings: Frank Peterman's Response to Melinda Miguel's Motion to Quash Subpoena and for Protective Order filed.
PDF:
Date: 08/10/2011
Proceedings: Amended Notice of Appearance on Behalf of Non-Party Movant (Michael Sevi) filed.
PDF:
Date: 08/10/2011
Proceedings: Affidavit of Service (to S. Strum) filed.
PDF:
Date: 08/09/2011
Proceedings: Notice of Cancellation of Taking Deposition (of M. Miguel) filed.
PDF:
Date: 08/08/2011
Proceedings: Non-party Movant, Chief Inspector General Melinda Miguel's Motion to Quash Subpoena and for Protective Order filed.
PDF:
Date: 08/08/2011
Proceedings: Notice of Appearance (Michael Sevi) filed.
PDF:
Date: 08/03/2011
Proceedings: Return of Service (to R. Love) filed.
PDF:
Date: 07/26/2011
Proceedings: Notice of Respondent's First Interrogatories to Commission on Ethics filed.
PDF:
Date: 07/26/2011
Proceedings: Return of Service (to J. Parker) filed.
PDF:
Date: 07/26/2011
Proceedings: Subpoena Ad Testificandum (to M. Miguel) filed.
PDF:
Date: 07/22/2011
Proceedings: Notice of Taking Deposition (Rod Love) filed.
PDF:
Date: 07/21/2011
Proceedings: Notice of Taking Deposition (of S. Strum) filed.
PDF:
Date: 07/21/2011
Proceedings: Notice of Taking Depositions (of M. Miguel and J. Parker) filed.
PDF:
Date: 07/20/2011
Proceedings: Letter to parties of record from Judge Harrell.
PDF:
Date: 07/19/2011
Proceedings: Notice of Taking Deposition Duces Tecum (of C. Williams) filed.
PDF:
Date: 07/19/2011
Proceedings: Return of Service (Cheryl Williams) filed.
PDF:
Date: 07/13/2011
Proceedings: Order Granting Continuance and Re-scheduling Hearing (hearing set for October 11 and 12, 2011; 9:00 a.m.; Clearwater, Florida).
PDF:
Date: 07/12/2011
Proceedings: Motion to Continue Final Hearing filed.
PDF:
Date: 07/01/2011
Proceedings: Letter to parties of record from Judge Harrell.
PDF:
Date: 06/30/2011
Proceedings: Amended Notice of Deposition (Charles Drago) filed.
PDF:
Date: 06/30/2011
Proceedings: Amended Notice of Deposition (Frank Peterman, Jr.) filed.
PDF:
Date: 06/30/2011
Proceedings: Amended Notice of Deposition Duces Tecum (As to Change of Date and Location Only; Cheryl Williams) filed.
PDF:
Date: 06/30/2011
Proceedings: Amended Notice of Deposition (As to Change of Location Only; Timothy Niermann) filed.
PDF:
Date: 06/30/2011
Proceedings: Amended Notice of Taking Deposition (As to Change of Location Only; Corrine Brown) filed.
PDF:
Date: 06/29/2011
Proceedings: Retuen of Service (Judge Lori Rowe) filed.
PDF:
Date: 06/22/2011
Proceedings: Notice of Taking Deposition (of F. Peterman) filed.
PDF:
Date: 06/22/2011
Proceedings: Notice of Taking Deposition (of C. Drago) filed.
PDF:
Date: 06/22/2011
Proceedings: Notice of Taking Deposition Duces Tecum (of C. Williams) filed.
PDF:
Date: 06/22/2011
Proceedings: Notice of Taking Deposition (of L. Rowe) filed.
PDF:
Date: 06/22/2011
Proceedings: Notice of Taking Deposition (of T. Niermann) filed.
PDF:
Date: 06/22/2011
Proceedings: Notice of Taking Deposition (of E. Eikenberg) filed.
PDF:
Date: 06/22/2011
Proceedings: Notice of Taking Deposition (of B. Rogers) filed.
PDF:
Date: 06/22/2011
Proceedings: Notice of Taking Deposition (of K. Layman) filed.
PDF:
Date: 06/22/2011
Proceedings: Notice of Taking Deposition (of C. Brown) filed.
PDF:
Date: 05/23/2011
Proceedings: Order of Pre-hearing Instructions.
PDF:
Date: 05/23/2011
Proceedings: Notice of Hearing (hearing set for August 2 and 3, 2011; 9:00 a.m.; Clearwater, FL).
PDF:
Date: 05/20/2011
Proceedings: Notice of Transfer.
PDF:
Date: 05/19/2011
Proceedings: Response to Initial Order filed.
PDF:
Date: 05/10/2011
Proceedings: Initial Order.
PDF:
Date: 05/09/2011
Proceedings: Complaint filed.
PDF:
Date: 05/09/2011
Proceedings: Report of Investigation filed.
PDF:
Date: 05/09/2011
Proceedings: Determination of Investigative Jurisdiction and Order to Investigate filed.
PDF:
Date: 05/09/2011
Proceedings: Advocate's Recommendation filed.
PDF:
Date: 05/09/2011
Proceedings: Order Finding Probable Cause filed.
PDF:
Date: 05/09/2011
Proceedings: Agency referral filed.

Case Information

Judge:
SUSAN BELYEU KIRKLAND
Date Filed:
05/09/2011
Date Assignment:
05/20/2011
Last Docket Entry:
02/14/2012
Location:
Tallahassee, Florida
District:
Northern
Agency:
ADOPTED IN TOTO
Suffix:
EC
 

Counsels

Related DOAH Cases(s) (1):

Related Florida Statute(s) (10):