11-005466EC In Re: Patricia G. Bean vs. * Status: Closed Recommended Order on Thursday, May 31, 2012.

Summary: Evidence fails to establish that Respondent acted corruptly when such action was based on the legal opinion issued by the county attorney.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

IN RE: PATRICIA G. BEAN , )

) Case No. 11 - 5466EC

Respondent . )

)

RECOMMENDED ORDER

An administrative hearing in this case was held on April 12,

2012 , in Tall ahassee, Florida, before William F. Quattlebaum,

Administrative Law Judge, Division of Administrative Hearings

APPEARANCES

The Advocate : Melody A. Hadley, Esquire

Office of the Attorney General

The Capitol, Pl aza Level 01

Tallahassee, Florida 32399

For Respondent: H. Ray Allen, II, Esquire

Carlton Fields, P.A.

Suite 1000

4221 West Boy Scout Boulevard

Tampa, Florida 33607

STATEMENT OF THE ISSUE S

The issue s in this case are whether form e r Hillsborough

County Administrator Patricia G. Bean (Respondent) violated

s ection 112.313(6), Florida Statutes (2011) , 1/ and , if so, what

penal ty, if any, should be i mposed.

PRELIMINARY STATEMENT

On September 14, 2011, the Florida Commission on Ethics

(Commission) issued an Order Finding Probable Cause (Order) ,

alleg ing that the Respondent violated s ection 112.313(6) " by

approving a 1% raise in salary for herself and o thers without the

approval of the Hillsborough County Board of County

Commissioners " (BCC) . The Order directed that a public hearing

b e conducted on the allegation.

On October 24, 2011, the Commission transferred the case to

Division of Administrative Hea rings (DOAH) and requested that an

Administrative Law Judge (ALJ) be assigned to conduct the public

hearing and prepare a recommended order. The case was assigned

to the undersigned ALJ , and, on October 25, 2011, an I nitial

Order was issued , requesting th at the parties provide dates of

availability for the hearing . Based on the response to the

Initial Order, the hearing was scheduled to occur on January 24

and 25, 2012, by video t eleconference between Tampa and

Tallahassee . On December 30, 2011, the part ies filed a Joint

Motion for Continuance , and the video teleconference was

rescheduled to April 12 and 13, 2012. On April 3, 2012 , the

parties filed a Joint Motion to Change Venue to Tallahassee and

stated that the hearing c ould be completed in one day. On

April 4, 2012, the hearing was rescheduled to April 12, 2012 , in

Tallahassee.

At the hearing, the Advocate presented the testimony of the

Respondent and had one exhibit admitted into evidence. The

Respondent testified separately on her own behalf. Joi nt

Exhibits 1 through 9 and 11 were admitted into evidence.

The Tra n script of the hearing was filed on April 26, 2012.

Both parties filed p roposed r e comme n d e d o rders on May 7, 2012 ,

that have been consider ed in the preparation of this R ecommende d

Order.

P rior to the hearing, the parties filed a Joint Prehearing

Stipulation includ ing a statement of admitted facts that have

been adopted and incorporated herein as appropriate .

FINDING S OF FACT

1. Beginning in 2003, and at all times material to this

case, the Respondent was employed as the c ounty a dministrator for

Hillsborough County, Florida.

2. In Spring 2006, various departments of the Hillsborough

County government were engaged in reviewing their

responsibilities and developing proposals to increase

effic iencies and reduce costs for upcoming budget years .

3. An " executive team " of county employees met periodically

to determine which of the proposals me t or exceed ed efficiency

goals that were targeted towards reducing costs while maintaining

services.

4. In the Summer or Fall of 2006, the Respondent, Deputy

County Administrator Walter Hill , and County Budget Director Eric

Johnson began to discuss ways to encourage and reward department

directors who me t efficiency goals .

5. At that time, the county govern ment had three existing

" award " options that could be used to reward employees for

exceptional service .

6. One award consisted of a paper certificate called the

" Extra Mile Award . " There was no monetary gain associated with

receiving an " Extra Mile Award . "

7. The second award (the " Productivity Award " ) included a

monetary bonus and was available to most employees ( with some

exceptions ) for exceptional performance .

8. The third award was the " Discretionary 1% Merit

Increase " available to senior managemen t employees . This award

consisted of a one percent " merit " salary increase over and above

any regular pay raise that the employee would have receive d .

9. T he Respondent, along with Deputy County Administrator

Hill and County Budget Director Johnson, deci ded to use the

" Extra Mile Award " and the merit salary increase to reward

department directors who met efficiency goals .

10. The Respondent was responsible for the final

determination as to which e mployees would receive awards.

11. The " Extra Mile Certif icate " awards were announced at a

budget " kick - off " meeting on the morning of February 1, 2007.

12. After the meeting, the Respondent issued a written

congratulatory memo to each employee who received a certificate .

She also used the memo to notify tho se employee s who had bee n

awarded the salary increase.

13. The Respondent 's department met the efficiency goals .

A t the time of the budget kick - off meeting , the Respondent

believed that her employment contract with Hillsborough County

precluded her from accepting it, and she excluded herself from

the salary increase.

14. The Charter of Hillsborough County provided that the

" compensation " for the county administrator " shall be fixed by

the Board of County Commissioners by ordinance " and that such

compensa tion " may be set by contract if allowed by and p ursuant

to ordinance. "

15. The Respondent's employment contract with Hillsborough

County established her initial salary as $179,000. According to

Section 6 of the contract, the Respondent was entitled to re ceive

the same " annual market equity increase " provided to " all other

unclassified managerial employees of the County . " The section

also stated t hat ad ditional salary or benefit increases could be

granted by action of the BCC within 60 days of he r annual

performance evaluation .

16. Hillsbor ough County A ttorney Renee Lee and Director of

the Hillsborough County Environmental Protection Commission

Richard Garrity also met the efficiency goals , but their

employment contract s with the county contained provisio ns similar

to those of the Respondent , and , so , the Respondent excluded

Ms. Lee and Mr. Garrity from receiving the salary increase . Both

received the " Extra Mile Award " at the budget kick - off meeting.

17. After the meeting had concluded, Ms. Lee sent a n email

addressed to the Respondent and Deputy County Administrator Hill

wherein she assert ed that the terms of her contract allowed her

to receive " the award . "

18. In the email, Ms. Lee cited a provision in her contract

that referenced entitlement to " su ch other benefits " as were made

available to other county employe es.

19. Although there appears to have been some confusion

regarding the names of the awards available to recognize county

employees for their performance, it wa s clear that the reference

to the " Extra Mile Award " in Ms. Lee's email refer red to the

salary in crease.

20. T he Respondent's employment contract contained language

similar to that cited in Ms. Lee's email , whereby the Respondent

was entitled to the " benefits " available to other mana g erial

employees in the c ounty.

21. As the c ounty a ttorney, Ms. Lee reported directly to

the BCC and, pursuant to the county charter, was the chief legal

advisor for the BCC on all matters of county business, including

personnel matters. The Respondent h ad no managerial authority

over the c ounty a ttorney at any time relevant to this proceeding .

22. There is no evidence that the Respondent discussed the

matter with Ms. Lee. After receiving Ms. Lee's email, t he

Respondent directed Deputy County Administra tor Hill to contact

Christina Swanson ( d irector of the Employee Benefits Division in

the county's Human Resource s Department) and ask her to evaluate

Ms. Lee's email.

23. Deputy County Administrator Hill apparently did so, and

Ms. Swanson thereafter asked Ms. Lee to provide a written legal

opinion addressing whether the salary increase could be awarded

under the terms of the contracts .

24. On February 2, 2007, M s. Lee issued a written legal

opinion addressed to Ms. Swanson , sta ting that both Ms. Lee and

t he Respondent could receive the salary increases under the terms

of their respect ive contracts .

25. Although she h ad received a law degree, Ms. Swanson had

not worked as a practicing attorney .

26. The issue s of the whether the salary increases

underlying this case constitute d a " benefit " of employment with

Hillsborough County, and whether M s. Lee's written legal opinion

wa s correct , are no t at issue in this proceeding.

27. After Ms. Swanson received Ms. Lee's written legal

opinion , the Human Resource s De partment processed the forms

required to implement the salary increase s for t he Respondent and

for Ms. Lee.

28. The Respondent testified that she discussed the matter

with Ms. Swanson after Ms. Lee issued the legal opinion.

Ms. Swanson did not recall the conversation. In any event, t he

evidence fails to establish that the Respondent directed

Ms. Swanson, or any other employee in the Human Resources

Department , to process the paperwork required to i mplement the

salary increases.

29. On February 7, 2007, G eorge Williams, the d irector of

the county's Human Resources Department, signed the form ( " Report

of Change of Status " ) , approving the one percent salary increase

awarded to the Respondent. The Respondent's hourly salary rate

was increased from $101.82 to $102.84, effective January 7, 2007.

The Respondent did n ot receive a copy of the form.

30. Deb Dahma, a staff member in the Human Resources

Department , signed the form approving the one percent salary

increase awarded to Ms. Lee . The signature on that form was

undated.

31. There is no evidence that the Respondent directed

either Mr. Williams o r Ms. Dahma to sign the forms.

32. The executed forms were sent to the county's payroll

department , and their salary increases were implemented.

33. On February 8, 2007, Ms. Lee authored another email to

Ms. Swanson wherein she opined that , upon review of Mr. Garrity 's

contract, he was also eligible for the salary increase. The re is

no evidence that the Respondent participated in any effort to

award the salary i ncrease to Mr. Garrity , or that he accepted or

received the salar y increase.

34. Both the Respondent and Ms. Lee accepted the salary

increase s .

35. The c ounty a dministrator's staff was responsible for

preparation of agendas for BCC meetings. The Respond ent

participated in the preparation process and could direct

placement of items on the agenda.

36. The Respondent did not provide the BCC with an

opportunity to consider the salary increases referenced herein

and did not seek the explicit approval of the salary increases

from the BCC either prior to or after they were implemented.

37. The Respondent believed that the Human Resources

Department, which handled personnel matters, would seek any

approval of the salary increases required from the BCC , but the

Human Resources Department did not bring t he matter to the BCC

for review .

38. Although the BCC approved the Respondent's salary ,

including the increase underlying this case, during the

Respondent's subsequent performance review , the evidence fails to

est ablish that the BCC was advised that the salary included an

increase that had not been approved by the B CC .

39. At some later point, t he Respondent's salary increase

apparently became a matter of conflict with the BCC , and her

salary was reduced to negate the one percent increase . The

Respondent reimbursed Hillsborough County for the funds she

received through the salary increase.

40. The Respondent's employment as the Hillsborough County

a dministrator was eventually terminated.

41. An investigation of the circumstances of the raise that

was conducted by the Florida Department of Law Enforcement

resulted in no criminal charges being filed against the

Respondent.

CONCLUSIONS OF LAW

42. The Division of Administrative Hearings has

jurisdiction over the par ties to and the subject matter of this

proceeding. §§ 120.569 and 120.57, Fla. Stat.

43. The Advocate has the burden to establish the

allegations against the Respondent by clear and convincing

evidence. Dep't of Banking & Fin. v. Osborne Stern & Co. , 67 0

So. 2d 932 (Fla. 1996); Latham v. Fla. Comm'n on Ethics , 694 So.

2d 83 (Fla. 1st DCA 1997).

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

1983), the court developed a working definition of " clear and

convincing evidence " that has been adopted by the Florida Supreme

Court in In re Da vey , 645 So. 2d 398 (Fla. 1994), and which

provides as follows :

[C]lear and convincing evidence requires that

the evidence must be found to be credible;

the facts to which the witnesses testify must

be distinctly re membered; 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 hesita ncy, as to the truth of the

allegations sought to be established.

Slomowitz , 429 So. 2d at 800.

45. The Advocate has alleged that the Respondent has

violated section 112.313(6), which provides as follows:

MISUSE OF PUBLIC POSITION. -- No public

officer, e mployee 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, be nefit, or exemption for himself,

herself, or others. This section shall not

be construed to conflict with s. 104.31.

46. Section 112.312(9) defines " corruptly " as follows:

" Corruptly " means done with a wrongful intent

and for the purpose of obtaining, o r

compensating or receiving compensation for,

any benefit resulting from some act or

omission of a public servant which is

inconsistent with the proper performance of

his or her public duties.

47. The evidence fails to establish by clear and convincing

e vidence that the Respondent has violated section 112.313(6) ,

because the re is no credible evidence that the Respondent acted

with " wrongful intent. "

48. The Advocate has asserted that the Respondent acted

" corruptly " by failing to advise the c ounty a ttorn ey that the

Respondent believed contract employees were precl uded from

accepting the award.

49. The c ounty a ttorney was an independent employee of the

BCC with direct responsibility for a legal determination as to

whether the salary increases could be awa rded to contract

employees who were otherwise entitled to receive them. Although

the Respondent acknowledged that she initially believed that her

contract precluded her from receiving the salary increase, the

c ounty a ttorney determined otherwise. Whether the opinion of the

c ounty a ttorney was correct is not at issue in this proceeding.

50. There was no evidence that the Respondent had any

communications with the c ounty a ttorney regarding the eligibility

of contract employees to receive the salary incre ase underlying

this proceeding. There was no evidence that the Respondent

directed the c ounty a ttorney to issue any opinion whatsoever or

that the Respondent was authorized to challenge Ms. Lee 's legal

opinion . To the contrary, given the responsibilities assigned to

both the Respondent and Ms. Lee by the c ounty c harter , it was

reasonable for the Respondent to defer to the written legal

opinion prepared by the c ounty a ttorney.

51. The Advocate has also asserted that the Respondent

acted " corruptly " by fai ling to bring the matter before the BCC

for their consideration. The evidence fails to establish that

the Respondent was under an obligation to present the matter to

the BCC .

52. The evidence fails to establish that the routine

employment benefit matters for county employees required approval

by the BCC. Once the c ounty a ttorney issued a written legal

opinion stating that the salary increases were available to

contract employees as would be any other benefit made available

to other employees , the Respond ent had no obligation to refer the

matter to the B CC for approval .

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Florid a Commission on Ethics

enter a f inal o rder and p ublic r eport finding that Pat ricia G.

B ean did not violate s ection 112.313(6) and dismissing the

complaint filed in this case.

DONE AND ENTERED this 31st day of May , 2012 , in Tallahassee,

Leon County, Florida.

S

WILLIAM F. QUATTLEBAUM

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 3 1st day of May , 2012 .

ENDNOTE

1/ References to Florida Statutes are to the 2011 version, unless

otherwise indicated.

COPIES FURNISHED:

Melody A. Hadley, Esquire

Office of the Attorney General

The Capitol, P laza Level 01

Tallahassee, Florida 32399

H. Ray Allen, II, Esquire

Carlton Fields, P.A.

4221 West Boy Scout Boulevard , Suite 1000

Tampa, Florida 33607

Kaye B. Starling, Agency Clerk

Florida Commission on Ethics

3600 Maclay Boulevard, South, Suite 201

Post Office Drawer 15709

Tallahassee, Florid a 32317 - 5709

Virlindia Doss, Executive Director

Florida Commission on Ethics

3600 Maclay Boulevard, South, Suite 201

Post Office Drawer 15709

Tallahassee, Florida 32317 - 5709

C. Christopher Anderson, III, General Counsel

Florida Commission on Ethics

Po st 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.