11-002309EC
In Re: Frank Peterman, Jr. vs.
*
Status: Closed
Recommended Order on Friday, December 30, 2011.
Recommended Order on Friday, December 30, 2011.
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.
- Date
- Proceedings
- 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.
- 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 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: 10/05/2011
- Proceedings: Notice of Cancellation of Taking Deposition (of B. Butterworth) filed.
- PDF:
- Date: 09/30/2011
- Proceedings: Second Amended Notice of Taking Deposition (of R. Butterworth, Jr) filed.
- 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.
- 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: 08/29/2011
- 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: 08/24/2011
- Proceedings: Notice of Advocate's Response to Respondent's Interrogatories filed.
- PDF:
- Date: 08/15/2011
- Proceedings: Motion for Leave to Take Depositions of Shane Strum and Rod Love by Telephone filed.
- 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: 08/09/2011
- 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: 07/26/2011
- Proceedings: Notice of Respondent's First Interrogatories to Commission on Ethics 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: 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: 05/23/2011
- Proceedings: Notice of Hearing (hearing set for August 2 and 3, 2011; 9:00 a.m.; Clearwater, FL).
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
-
Diane L. Guillemette, Esquire
Address of Record -
Mark Herron, Esquire
Address of Record -
Michael M. Sevi, Esquire
Address of Record -
Kaye B. Starling
Address of Record