11-006265EC In Re: Oel Wingo vs. * Status: Closed Recommended Order on Wednesday, August 8, 2012.

Summary: Petitioner did not establish by clear and convincing evidence that Respondent violated section 112.313(6), as alleged in the Order Finding Probable Cause.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

IN RE: OEL WINGO , )

)

Respondent . ) Case No. 11 - 6 265 EC

)

RECOMMENDED ORDER

Pursuant to notice, a final hearing was conducted in this

case on April 10 and 1 1, 2012 , in Daytona Beach, Florida, before

Administrative Law Judge W. David Watkins of the Division of

Administrative Hearings.

APPEARANCES

For Advocate : Diane L. Guillemette , Esquire

Office of the Attorney General

The Capitol, Plaza Level 0 1

Tallahassee, Florida 32399

For Respondent: J. Brennan Donnelly, Esquire

Messer, Caparello and Self, P.A.

2618 Centennial Place

Tallahassee, Florida 32308

STATEMENT OF THE ISSUE

The issue in this case, as stipulated by the part ies, is

whether Respondent violated section 112.313(6), Florida Statutes

(20 10 ), 1 / by attempting to enter into, or by entering into, pre -

dated employment agreements, and/or by attempting to destroy or

destroying public records and/or evidence of wrongdoing and/or by

attempting to enter into or entering into agreements which

exceeded the Respondent's purchasing authority .

PRELIMINARY STATEMENT

On October 26, 201 1 , the Commission on Ethics (ÐCommissionÑ)

entered an Order Finding Probable Cause finding that th ere was

reasonable cause to believe that Respondent, in her capacity as

the City Manager of the City of Holly Hill, violated s ection

112.313(6), Florida Statutes, by attempting to enter into, or

entering into, employment agreements with the CityÓs departme nt

heads that showed an incorrect date. On December 11, 2011, the

Commission referred the matter to the Division of Administrative

Hearing (ÐDOAHÑ) for the assignment of an administrative law

judge, to conduct a formal administrative hearing, and to enter a

recommended order.

Prior to the hearing, the parties filed a Joint Prehearing

Stipulation in which they stipulated to several facts and

conclusions of law. The parties ' stipulations have been

incorporated below to the extent relevant.

A final hearin g was conducted on April 10 and 11, 2012, in

Daytona Beach, Florida. At the final hearing, the Advocate

presented the testimony of the following witnesses: Respondent ;

Mark Barker, the complainant ; Kurt Swartzlander ; Scott Gutauckis ;

Ronnie Spencer ; Scott Simpson ; Joshua Fruecht ; and Diane Cole (by

deposition). Respondent presented the testimony of Roland Via

and Respondent.

The Advocate presented 28 exhibits, which were admitted into

evidence. The Respondent presented one additional exhibit, which

was admitted into evidence.

The three - volume Transcript of the hearing was filed on

May 3 , 2012. The parties agreed to file proposed recommended

orders by June 2 , 2012. Both parties timely filed P roposed

R ecommended O rders, which have been considered in the preparation

of this Recommended Order.

FINDING S OF FACT

1 . Respondent, Oel Wingo was employed as the c ity m anager

for the City of Holly Hill (City) from January 1, 2010 , until

October 2010. Prior to serving in that capacity, she was the

a ssistant c ity m a nager for the City of Palm Coast for ten years ,

and the a ssistant c ity m anager for the City of Ocala for five

years. Respondent earned a Ph.D. in Education Administration

from the University of Florida.

2 . At all times material to the allegations herein, t he

C ity operated under a c ommission/ c i ty m anager form of government.

This mean t that the commission decided policy, while the c ity

m anager was responsible for implement ing policy and handl ing all

operationa l matters, including the hiring and firing of

p ersonnel .

3 . Respondent 's employment as c ity m anager was governed by

an employment agreement. T he agreement provided for the payment

of severance pay to Respondent in the event she was "terminated"

by the City. Under section 10 of the agreement , termina tion

could occur under a number of scenarios, including the follow ing :

If the Employer reduces the base salary,

compensation or any other financial benefit

of the Employee, unless it is applied in no

greater percentage than the average reduction

of all de partment heads, such action shall

constitute a breach of this agreement and

will be regarded as a termination.

4 . In the event that Respondent w as terminated purs uant to

the above provision, " [T]he Employer shall provide, initially, a

severance payment equal to six months' salary at the current rate

of pay . . . . "

5 . Respondent 's employment agreement with the City further

provided that she would not be entitled to receive severance

benefits in the event she was terminated for cause. At the time

she w as termi nated from her employment as c ity manager,

Respondent Ós annual rate of pay was $124,500. 00.

6 . When Respondent assumed her duties as city manager, the

City was experiencing significant budget problems because of

declining property values, and the resultant reduction in tax

revenues. Faced with a reduced budget, Respondent was

nonetheless charged with the duty to maintain the current level

of city services. Consequently , Respondent implemented budget

cuts, reorganizations, layoffs, and position el iminations within

months of her arrival . Understandably, t he atmosphere in city

commission meetings was , at times, tense and volatile .

Similarly, the rapid personnel changes negatively affect ed

employee morale and fostered resistance to many of t he chang es

proposed by Respondent .

7 . When Respondent was hired by the City , only one City

department head, C ity C lerk Valerie Manning, had an employment

contract. Ms. Manning's contract with the City provided that if

the City were to reduce her compensation in a greater percentage

than the applicable across - the - board reduction for all City

employees, she could elect to resign and Ð be terminated without

cause, Ñ and therefor eligible for full severance benefits.

M anning left the employ of the City in April , 2010 .

8 . In April 2010, Respondent replaced Manning with Joshua

Fruecht. Fruecht testified that he requested an employment

contract soon after he was hired. Respondent told him she would

consider it after he had worked for the City for six months.

9 . Ear ly during Respondent 's employment with the City she

and the City Attorney, Scott Simpson, had conversations about the

desirability of the department heads having employment agreements

because, as department heads, they had no protection from

arbitrary term ination. Entering into employment agreements with

the department heads would protect them from being terminated by

the c ity c ommission for personal reasons. By that time

Respondent had already been approached by Administrative Services

Director Kurt Swar zlander, who was concerned about his position

and also wanted an employment agreement.

10 . On May 6, 2010 , Respondent e - mailed Attorney Simpson

with the following inquiry:

We recently discussed the need to contract

with Department Heads. Previously, the City

Clerk had a contract. I am reviewing similar

employment contracts from other cities and

would like to pursue this for several

reasons.

My primary question for you is whether these

contracts must go before the Commission. My

interpretation of the Charter and my hiring

and firing capabilities is that they do not,

as long as I remain within the adopted job

descriptions and pay ranges.

11 . Later that day, Simpson responded to Respondent 's

inquiry as follows:

I agree that an employment contract with

department heads should be within your

authority as the City Manager. However, if

severance is going to be provided to the

department heads, then I would recommend

having the commission approve this change in

benefits even if individually the cost would

not exceed your spending authority as

cumulatively they probably would and it is a

new benefit. This should not be an issue as

the commission approved this for the City

Clerk.

12 . Roland Via served on the c ity c ommission from November

2005 through Nove mber 2010 , and was the mayor when Respondent was

hired as the city m anager. Mr. Via testified that in

January 2010, during her first month of employment, Respondent

advanced the idea of employment agreements for City department

heads. According to Respon dent, employment agreement s would

permit the City to hire the best managerial talent from other

cities and provide a benefit to both the City and the employee.

13 . In May 2010 , Respondent negotiated an employment

agreement with Brad Johnson to serve as the p ublic w orks

d irector . The contract was executed without approval by the City

Commission. City Attorney Simpson and Respondent collaborated in

the prepar ation of the contract. Mr. Johnson's agreement

provided that if the City were to reduce his fina ncial benefits

in a greater percentage than th e applicable across - the - board

reduction for all City employees, he could resign and be

terminated without cause, thus being eligible for full severance

benefits. Specifically, s ection 4(c) of Mr. JohnsonÓs emp loyment

agreement provided as follows:

If the City reduces the financial benefits of

the Employee in a greater percentage than the

applicable across - the - board reduction for all

City employees, or if the City refuses,

allowing written notice, to comply wit h any

other provision benefitting the Employee as

set forth herein, then Employee may, at

his/her option, elect to resign and be

Ðterminated without causeÑ within the meaning

of Section 4(a) of the Agreement and shall

receive all compensation and benefits in

Section (4)(a). Such resignation shall be in

writing to the City Manager.

In the event there was a termination under the above

circumstances, Mr. JohnsonÓs agreement provided that the City

would pay a minimum of four months Ó salary and benefits pursua nt

to the CityÓs Personnel Policies.

14 . Respondent forwarded an e - mail to the members of the

City Commission on May 7, 2010 , informing the m of her decision to

enter into an employ ment agreement with Mr. Johnson based on a

similar agreement with the form er City Clerk, Ms. Manning .

Respondent also informed the commissioners that the Ð City

Attorney ha s advised that we consider utilizing employment

agr eements with new Department H eads. Ñ

15 . At the time Respondent offer ed an employment agreement

to Mr. Joh nson, she elected not to do so for the other department

head s . This was because she needed more time to evaluate each

department headÓs capabilities and determine on a case by case

basis whether offer ing contracts to them would in the best

interest of the City. However, the unrebutted testimony

established that early in her tenure as city manager Respondent

had formulated the intent to enter in to employment contracts with

qualified department heads at some future time .

16 . When Respondent entered into th e written agreement with

Mr. Johnson she was aware of the potential limitations imposed on

her purchasing authority as a result of the severance provisions

of the employment agreement. However, at the time that

Respondent entered into the agreement with M r. Johnson, no

language was suggested or offered by the c ity a ttorney rega rding

the limitations imposed on the c ity m anager's purchasing

authority by virtue of the CityÓs purchasing code.

17. While Respondent was hired by unanimous vote of the

City commi ssion , her relationship with certain c ommission ers ,

particularly Commissioner Glass and Commissioner Patton , began to

deteriorate within the first months of her employment. This was

the result of several actions by Respondent, including

challeng ing Commis sioner Glass about directing an employee to

expend funds in a manner inconsistent with c ommission action , and

deciding not to authorize the use of City funds to pay for the

spouses and children of commissioners to attend the League of

Cities convention. A s a result of this friction , Respondent

testified , she was threatened by Commissioner Glass on more than

one occasion.

The July 28, 2010 , Employment Agreements (Dated May 21, 2010)

18 . At a c ity c ommission workshop on the evening of

July 27, 2010, Commis sioner Patton suggested that Respondent take

a 20 percent cut in pay , and that salaries of the department

heads also be reduced. At the time that Commissioner Patton

suggested the pay cut s , the only department head that had an

employment agreement was Mr. Johnson . However, no formal motion

was made at this meeting to cut RespondentÓ s or department head

pay, and n o evidence was introduced that any action was ever

taken by the c ity c ommission on this suggestion.

19 . I n the hours immediately f ollowing the commission

meeting of July 27, 2010, which Respondent and other witnesses

characterized as being "vicious, dysfunctional, screaming and

yelling," Respondent wrote a resignation letter and prepared a

list of things that needed to be done before she left the City.

Among the items on RespondentÓs Ðto doÑ list was to prepare and

complete the employment agreements that she and the c ity a ttorney

had been discussing for department heads.

20 . Respondent testified that she had two reasons for

implementing employm ent agreements immediately following the

July 27 th commission meeting. The first was to protect the

department heads from the personal vendettas of the c ity

commission . The second was to e nsur e that the City had a

profess ional management team in place an d continuity of

professional management.

21 . On the morning of July 28, 2010, Respondent met with

all of her department heads at the regularly scheduled weekly

executive team meeting . She informed them that she would be

wo rking with the human resources d irector, Diane Cole, to

immediately prepare employment agreements for all department

heads modeled on the Brad Johnson, May 21, 2010 , employment

agreement. The reason given by Respondent for the agreements was

that the department heads Ðshould all have s ome protections due

to the atmosphere within the city . . . . Ñ During this meeting

she also informed her department heads of her intention to resign

as city manager.

22 . Respondent directed Ms. Cole to use the exact same

agreement as had been prepared f or Mr. Johnson , and to include

the same dates as were included in that agreement. Accordingly,

e ach of the employment agreements was dated as being signed on

May 21, 2010 , and each contained the same severance pay provision

at s ection 4(c) , as did Mr. Joh nsonÓs agreement. Likewise, t he

effective date of each of the employment agreements was June 7,

2010.

23 . On the afternoon of July 28, 2010 , each of the

department heads, except P olice C hief Barker, who was out of

town, was presented with and signed the ir respective employment

agreement. Al though not present, C hief Barker conferred by

telephone with Respondent regarding the employment agreement and

advised her that he would not sign a "post - dated" agreement.

The July 29, 2010, Agreements

24 . Upon furt her reflection that evening , Respondent became

concerned about the Ð signature date Ñ of May 21, 2010 , appearing

on contracts actually signed on July 28, 2010. This concern was

no doubt fueled by Chief BarkerÓs comment regarding the Ðpost -

datedÑ nature of t he agreements. Accordingly, Respondent decided

to have new agreements prepared the following day which would

reflect signature date s of July 29, 2010. In addition, both she

and Ms. Cole had noted that the some of the agreements signed on

July 28, 2010 , c ontained typographical errors that neede d to be

corrected. 2 /

25 . On July 29, 2010, Respondent presented a second

employment agreement to each of the City department heads fo r

them to sign . Each employment contract was dated as having been

executed on Ju ly 29, 2010. Each of the employment agreements

contained the identical language at s ection 4(c) as had appeared

in the earlier versions signed the previous day. Similarly, the

Ðeffective dateÑ of each agreement remained June 7, 2010 .

26 . Following the execution of the agreements on July 29,

2010 , Respondent instructed Ms. Cole to destroy all the

agreements d ated May 21, 2010. Ms. Cole testifi ed that

Respondent directed her to destroy them because they were drafts,

they contained typographical errors, a nd they had been superseded

by the July 29 , 2010 , agreements. Notwithstanding her direction

that the hardcopies be destroyed, Respondent testified that she

understood that a copy of all of the agreements dated May 21 ,

2010 , remained on the City's computer system , consistent with the

CityÓs rec o rd retention procedures.

27 . The new agreements tied Respondent's potential

severance benefits to base salary reductions of all department

heads whose severance benefits were, in turn, tied to reductions

in pay and benefits to all City employees. 3 / Thus, a ny potential

benefit to Respondent of the new agreements would depend on the

type of action taken by the City. At least three scenarios were

possible. First, if the City proposed cutting Respondent Ós pay

and ben efits by 20 percent, with no other corresponding

reductions to department heads or city personnel, there would be

no new benefit to Respondent . She would be entitled to severance

as provided in her employment agreement, because her pay and

benefits were b eing cut in a greater percentage than her

department heads. Second, if the City reduce d salary and

benefits paid to d epartment heads or city personnel by 10

percent , but reduce d Respondent Ós pay and benefits by 20 percent,

there would be no new benefit to Respondent . She would be

entitled to severance as provided in her employment agreement,

because her pay and benefits were being cut in a greater

percentage than her department heads. Third, if the City reduce d

Respondent's salary and benefits by 20 perc ent and her department

heads by 20 percent, and the remaining City employees by five

percent, Respondent would receive no new benefit. She would not

be entitled to severance as provided in her employment agreement

because her pay and benefits were not bei ng cut in a greater

percentage than her department heads. Under this scenario, the

department heads would be entitled to elect to treat the

disproportionate pay and benefit reduction as a Ðtermination

without cause , Ñ and while the department heads would b enefit,

Respondent would not.

28 . O n or about August 20, 2010, having heard about the

employee contracts, City Commissioner Rick Glass telephonically

requested a copy of all the employment agreements "from 5/21 to

present . . . . " In response, Responden t sent an e - mail to all

the City Commissioners, the Executive Team, and to the City

Attorney stating, in part:

Pursuant to the advice of the City Attorney

and based on the fact that the Commissioners

previously approved the concept of a

Department Head Emp loyment Agreement in 2008,

the City Attorney prepared an Employment

Agreement in May 2010 for implementation.

See Attached. Consistent with the City

Manager's approved purchasing authority, all

non - union managers were subsequently offered

the opportunity to enter into the proposed

employment agreement.

The Employment Agreement protects the City as

well as the professionals. The City is

protected by ensuring that we have sufficient

lead time, four months, prior to a

r esignation to ensure we have adequate

coverage for a professional position and

services can continue uninterrupted.

29 . Respondent provided the recipients of the e - mail a copy

of "the agreement prepared by the City Attorney."

30 . O n August 23, 2010, Commissioner Glass sent an e - mail

to Re spondent requesting a copy of the "first signed copy of the

employee agreements predated back to May 2010 , that Scott, Brad,

Diane, Josh, Oel, Kurt, Ron, and Mark signed! Not the contracts

you had them re - sign on July 29th ."

30 . In response, on August 2 3, 2010, Respondent wrote:

This is a follow - up to Mr. Glass's request

for Employment Agreement signed on May 21,

2010. The only Department Head that signed

an agreement on that date is Brad Johnson.

At that time, I chose not to have the other

Department Heads sign Employment Agreements

as I felt that I needed more time to

determine their capabilities in their jobs

and whether an employment agreement which

committed the City to those individuals was

in the best interest of the City.

Subsequently, given th e tone of the

Commission meetings, the pressure to

terminate certain individuals, as well as the

pressure to treat those without union

contracts differently, I chose to provide

those employees with the same agreement that

Brad Johnson signed on May 21, 201 0. I felt

morally and ethically obligated to

ensure that those employees ha d similar

protections to those employees with union

agreements. These employees signed an

agreement on July 28, 2010 , which still had

the May 21, 2010 date on it. On July 29,

201 0, we corrected not only the date to

reflect July 29, 2010, but several other

errors related to titles and

responsibilities within the proposed

agreements.

It was never my intent to imply that these

employees had signed the agreement on May 21,

2010. It was my intent to show that

they had the same protective status as Brad

Johnson acquired on May 21, 2010 , so that all

were treated the same. As the date could

have reflected a different intent and there

were other errors in the intermediate

document , I cor rected the proposed employment

agreement the next day and had the managers

sign a new agreement. The documents signed

on July 28, 2010, are considered draft or

intermediate records which are not in and of

themselves considered public records and were

disp osed of in accordance to state

guidelines.

31 . In an August 24, 2010 , e - mail, Attorney Simpso n

responded to Ms. Wingo's August 23, 2010 , e - mail . He wrote that

inasmuch as the documents in question "contained errors that were

corrected, including the da te, and the revised agreements was

[sic] subsequently executed by the City Manager and the

employees. Based on these facts the original agreements executed

would appear to be drafts or precursors to the final employment

agreement." Mr. Simpson conc luded, "draft documents are not

public records."

The August 30, 2010, Agreements

32 . On August 30, 2010, yet a third version of the

employment agreement s was presented to each of the department

heads . The se agreements were prepared and executed following

comm unications with Attorney Simpson regarding whether the

severance pay provisions of the July 30, 2010 , agreements

potentially exceeded Respondent's purchasing authority of

$25,000. At issue was the manner in which Respondent had

originally calculated the p otential severance benefits available

to the department heads under the agreements. In an e - mail dated

August 24, 2010, Attorney Simpson expressed his concern that the

severance pay provisions in the July 30, 2010 , agreements had the

potential to exceed $ 25,000 for all of the department heads, with

the exception of Joshua Fruecht.

33 . The third and final version of the agreement addressed

the limitations in the severance benefits offered as a result of

the limits on the c ity m anagerÓs purchasing authority set forth

in the CityÓs purchasing ordinances. Specifically, s ection 4(a)

of the agreement was amended to provide:

(a) In the event the Employee is

terminated without cause by the City while

the Employee is willing and able to perform

the duties of the p osition as Human Resources

Manager, the City agrees, subject to the

below conditions, to pay the Employee a

minimum of four (4) months of salary and

benefits health insurance provided to the

Employee pursuant to the CityÓs Personnel

Policies not to exceed the City ManagerÓs

purchasing Authority . Additionally, the City

shall be responsible to pay all leave

accruals at the EmployeeÓs current rate of

pay, consistent with City Personnel Rules and

Regulations. (Emphasis in original) .

34 . Each of the employme nt agreements signed on August 30,

2010 , reflects execut ion on that date. Other than the signature

date and revision to s ection 4(a) , the August 30, 2010 ,

agreements are identical to the July 29, 2010 , versions.

35 . There is n o persuasive evidence in this record that

Respondent did not have authority to enter into employment

agreements with the City's department heads on behalf of the

City. To the contrary, t he City's outside labor counsel o pined

that a strong argument could be made that the c ity m ana ger

possesses the authority to enter into employment contract s,

subject to the c ity m anager's purchasing authority.

36 . Similarly, Attorney Simpson testified that he believed

Respondent had the authorit y to enter into employment agreements.

The only qu estion in his mind was whether the agreements should

be presented to the City Commission for review and approval ,

since in his opinion, offering a severance benefit was a policy

issue .

37 . There is no question that the CityÓs department heads

received a benefit from having employment agreements with the

City. It protected them from arbitrary personnel actions and

provided severance benefits under certain circumstances.

Specifically, their pay and benefits could not be reduced unless

there was a correspo nding reduction for all City employees.

38 . The evidence adduced at hearing does not clearly and

convincingly establish that Respondent acted corruptly in

entering into pre - dated employment agreements with her department

heads, or in directing that the Ju ly 28, 2010 , versions of the

agreements be destroyed. Rather, the competent substantial

evidence established that Respondent believed that she was acting

in a manner consistent with the proper performance of her duties

as city manager.

CONCLUSIONS OF LAW

39 . The Division of Administrative Hearings has

jurisdiction over the parties and the subject matter of this

proceeding. §§ 120.569 and 120.57(1), Fla. Stat. (2011).

40 . Respondent was subject to the requirements of p art III,

c hapter 112, Florida Statut es, the Code of Ethics for Public

Officers and Employees, for her acts and omissions during her

tenure as c ity m anager of the C ity of Holly Hill.

41 . During her tenure as the city m anager of Holly Hill

Respondent was subject to c hapter 119, Florida Statut es, Ðthe

public records law.Ñ

42 . Section 112.322 and rule 34 - 5.0015 authorize the

Commission to conduct investigations and to make public reports

on complaints alleging violations of the Code of Ethics.

43 . In this proceeding, the Commission, through its

Advocate, is asserting the affirmative of the issue: that

Respondent violated section 112.313(6), for which Respondent

should be penalized. Therefore, as the parties stipulated, the

Advocate has the burden of establishing by clear and convincing

evid ence the elements of Respondent ' s alleged violations. Latham

v. Fla. Comm ' n on Ethics , 694 So. 2d 83 (Fla. 1st DCA 1997),

citing Dep ' t of Banking & Fin . v. Osborne Stern , 670 So. 2d 932

(Fla. 1996), and Ferris v. Turlington , 510 So. 2d 292 (Fla.

1987).

4 4 . As stated by the Florida Supreme Court:

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 witne sses

must be lacking in confusion as to 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.

In re : Henson , 913 So. 2d 579, 590 (Fla. 2005) ( quoting Slomowitz

v. Walker , 492 So. 2d 797, 800 (Fla. 4th DCA 1983) ) . Accord

Westinghouse Electric Corp., Inc. v. Shuler Bros., Inc. , 590

So. 2d 986, 988 (Fla. 1st DCA 1991) ( " Although this standard of

proof m ay be met where the evidence is in conflict, . . . it

seems to preclude evidence that is ambiguous . " ).

T he Predated Employment Agreements

45 . The Advocate ' s position in this proceeding is that

Respondent violated section 112.313(6) by entering into false ly

dated employment contracts in an effort to insulate herself from

a reduction in pay, and then destroyed the falsely dated

contracts in violation of FloridaÓs public records law. 4 /

46 . Section 112.313(6) provides as follows:

MISUSE OF PUBLIC POSITION. -- No public

officer, employee of an agency, or local

government attorney shall corruptly use or

attempt to use his or her official position

or any property or resource which may be

within his or her trust, or perform his or

her official duties, to secure a special

privilege, benefit, or exemption for

himself, herself, or others. This section

shall not be construed to conflict which

section 104.31.

47 . The term " corruptly " is defined by section 112.312(9)

as follows:

" Corruptly " means done with a wrongfu l

intent and for the purpose of obtaining, or

compensating or receiving compensation for,

any benefit resulting from some act or

omission of a public servant which is

inconsistent with proper performance of his

or her public duties.

48 . Breaking down th e foregoing provisions into their

component parts, the Advocate ' s charge of a violation of

section 112.313(6) requires proof of three distinct elements.

First, the Advocate must prove that Respondent was a public

officer, employee of an agency, or local g overnment attorney at

the time of the alleged violation. Second, the Advocate must

prove that Respondent used or attempted to use her official

position, or any other property or resources within her trust, or

performed her official duties to secure a spec ial privilege,

benefit, or exemption for herself or others. Third, the Advocate

must prove that Respondent acted corruptly, as statutorily

defined to mean that Respondent acted with wrongful intent and

for the purpose of benefiting herself or another from some act or

omission which is inconsistent with the proper performance of her

public duties.

49 . Respo ndent stipulated that she was the city manager of

Holly Hill at the time of the alleged violation and , as such, is

subject to the requirements of the C ode of Ethics. Therefore,

the first element necessary to prove a violation of section

112.313(6) is established.

50 . Respondent used her official position as c ity m anager

to direct that the three iterations of the employment agreements

be prepared for t he CityÓs department heads. Respondent also

used her official position to direct that the copies of the

employment agreements signed on July 28, 2010, but dated May 21,

2010 , be destroyed following execution of the second version of

the agreements on July 29, 2010 .

51 . The employment agreements between the City and the

various department heads had the potential to provide a special

benefit for the CityÓs department heads. The agreement protected

them from arbitrary personnel actions and provided severa nce

benefits in certain circumstances. Specifically, their pay and

benefits could not be reduced unless there was a corresponding

reduction for all City employees.

52 . It is less clear that t he employment agreements between

the City and the various depa rtment heads provide d a special

benefit for Respondent . It is the AdvocateÓs position that

Respondent attempted to insulate herself from a possible

reduction in pay through the agreements with the department heads

since the implementation of a sizable red uction in pay (e.g. 20 % )

for department heads would expose the City to liability for

severance payments in excess of the contemplated salary

reduction. According to the Advocate, this exposure to liability

in excess of expected savings would make the City commission less

likely to reduce RespondentÓs and the department heads Ó salaries.

Thus, a ny potential benefit to Respondent would be dependent upon

the type of action contemplated by the City to reduce t he pay and

benefits of Respondent , the department h eads and the other city

employees.

53 . Regardless of whether a special benefit accrued, or had

the potential to accrue to Respondent, it is undisputed that the

employment agreements provided a special benefit to the CityÓs

department heads. Thus, it is necessary to determine whether

Respondent acted ÐcorruptlyÑ in securing that special benefit for

the department heads.

54 . To satisfy the statutory element of corrupt intent,

clear and convincing evidence must be adduced that Respondent

acted "with reas onable notice that her conduct was inconsistent

with the proper performance of her public duties and would be a

violation of the law or the code of ethics." Blackburn v. State,

Comm'n on Ethics , 589 So. 2d 431, 434 (Fla. 1st DCA 1991 ) .

55 . "Direct evidence of [wrongful] intent is often

unavailable." 5 / Shealy v. City of Albany, Ga. , 89 F.3d 804, 806

(11th Cir. 1996); see also State v. West , 262 So. 2d 457, 458

(Fla. 4th DCA 1972) ("[I]ntent is not usually the subject of

direct proof.").

56 . Circumstantial evidence, however, may be relied upon to

prove the wrongful intent which must be shown to establish a

violation of s ection 112.313(6) . See U.S. v. Britton , 289 F.3d

976, 981 (7th Cir. 2002) ("As direct evidence of a defendant's

fraudulent intent is typically unavailable, specific intent to

defraud may be established by circums tantial evidence and by

inferences drawn from examining the scheme itself that

demonstrate that the scheme was reasonably calculated to deceive

persons of ordinary prudence and comprehension.") (internal

q uotation marks omitted). For instance, such intent may be

inferred from the public servant's actions. See Swanson v.

State , 713 So. 2d 1097, 1101 (Fla. 4th DCA 1998) ("Appellant's

actions are sufficient to show intent to participate."); State v

Breland , 421 So. 2d 761, 766 (Fla. 4th DCA 1982) ("Actions

m anifest intent."); and G. K. D. v. State , 391 So. 2d 327, 328 - 29

(Fla. 1st DCA 1980) ("Appellant testified that he did not intend

to break the window, but the record indicates that he did

willfully kick the window, and he may be presumed to have

intended t he probable consequences of his actions.").

57 . In this case the evidence persuasively established that

there were legitimate, non - corrupt reasons for Respondent to

enter into employment contracts with her department heads .

Specifically, the agreements would protect department heads from

arbitrary actions that might be taken by a dysfunctional city

commission that was under extreme pressure to reduce expenses.

M ore importantly, the agreements would help ensure continuity of

important professional manage r s during a period of political and

financial crisis in the city, thereby reducing the likelihood of

disruption of city services to its citizens. Securing the

employment agreements on behalf of the City was entirely

consistent with the proper performance of Respondent's duties as

city manager .

58 . The conclusion that Respondent was not corruptly

motivated to enter into the employment agreements is bolstered by

the fact that at the time Respondent made the decision to offer

the contracts to her department heads (on July 28, 2010) she

could not have expected to benefit personally from the new

agreements. This is because when t he first version s of the

agreements were executed Respondent had already decided to resign

her position as city manager, and had pub licly announced that

decision to her department heads. Thus, the new agreements would

not have affected her personal situation, since under her

contract with the City she would not be entitled to severance p ay

under any circumstances if she resigned.

59 . Similarly, this record does not support by clear and

convincing evidence the conclusion that Respondent acted

corruptly in instructing Ms. Cole to prepare the agreements with

a signature date of May 21, 2010. The Advocate asserts that

Respondent's motiv ation in doing so was to give the appearance

that the employment agreements existed on May 21, 2010, well

before the commission's discussion regarding potential reductions

in pay for Respondent and the department heads. The Advocate's

theory that Responde nt was attempting to deceive the commission

as to the date the agreements were signed is rejected. The

evidence reflects that Respondent notified the Mayor and

commission er s via e - mail on May 7, 2010 , that she would be

entering into an employment agreemen t with Mr. Johnson. She made

no mention at that time of preparing to enter into agreements

with anyone else. Thus, she could not have reasonably believed

that she could ÐdupeÑ the commissioners into believing the other

agreements were signed on the same date as Mr. Joh nsonÓs, since

she had made no mention of them in her e - mail shortly before

Mr. Johnson's agreement was signed. The evidence does not

demonstrate that "the scheme was reasonably calculated to deceive

persons of ordinary prudence and comprehe nsion." U.S. v.

Britton , at 981 .

Destruction of the Pre - dated Agreements

60 . The Advocate asserts that Respondent violated section

838.0 2 2, Florida Statutes, when she directed that the first

version of the agreements (signed on July 28, 2010) be dest royed.

Section 838.022 provides in relevant part:

838.022 Official misconduct. Ï

(1) It is unlawful for a public servant,

with corrupt intent to obtain a benefit for

any person or to cause harm to another, to:

(a) Falsify, or cause another person to

falsify, any official record or official

document;

(b) Conceal, cover up, destroy, mutilate, or

alter any official record or official

document or cause another person to perform

such an act;

61. "To be guilty of official misconduct [as proscribed by

F lorida statute], a public servant must knowingly falsify, or

cause another to falsify, an official record or document, acting

with corrupt intent, that is, done with knowledge that the act is

wrongful and with improper motives, to obtain a benefit for

hims elf or herself or another or to cause unlawful harm to

another." Aurigemma v. State , 801 So. 2d 982, 985 (Fla. 4th DCA

2001). In other words, s ection 112.313(6) contains a general

intent of knowing the act is unlawful but also requires a

specific intent that it be done with the intent to cause a

benefit to himself or another." See also Bauer v. State , 609 So.

2d 608, 610 (Fla. 4th DCA 1992).

6 2 . The crime of official misconduct includes the same

element of mens rea as does s ection 112.313 , i.e., corrup t

intent. Regardless of whether the July 28, 2010 , version of the

employment agreements constituted public records or official

documents, 6 / t he evidence in this record does not clearly and

convincingly establish that Respondent knew that the agreements

me t the definition of public records or official documents, and

therefore should not be destroyed. To the contrary, Respondent

believed that they had been superseded by the agreements signed

the following day and as such, constituted drafts or precursors

of the final employment agreements. Respondent's understanding

in this regard is consistent with the conclusion reached by City

Attorney Simpson. In this instance the Advocate has not

established by clear and convincing evidence that Respondent

acted with corrupt intent when she directed that the July 28,

2010 version of the agreements be destroyed.

Limitations on City Managers Purchasing Authority

6 3 . Finally, the Advocate asserts that entering into

employment agreements which exceeded her spending autho rity was

inconsistent with the proper performance of Respondent's public

duties, in violation of s ection 112.313(6) .

6 4 . Section 30 - 63(a) of the City of Holly HillÓs Code of

Ordinances provides, in pertinent part, as follows:

All supplies, equipment and contractual

services , except as otherwise provided

herein, when the cost thereof shall exceed

$25,000 shall be purchased by formal written

contract and/ or purchase orders from the

lowest and best responsible bidder, after due

notice inviting proposals; . . .

Section 30 - 66 provides that Ð[a]ll contracts, when the sum is

$25,000 or less, may be awarded by the city manager to the lowest

and best bidder. All contracts when the amount is in excess of

$25,000, the city commission may award to the lowest and best

bidder.Ñ

6 5 . The definition of Ðcontractual servicesÑ in the CityÓs

purchasing code provides:

"Contractual services" as "all

telephone, gas, water, electric light and

power service, towel and cleaning service,

insurance, leases and concessions, dem olition

of buildings, rental, repair or maintenance

of equipment, machinery and other city owned

property, and other like services. The tern

'services' shall not include professional

services which are unique in their nature and

not subject to competition ."

In addition, the CityÓs purchasing code provides that:

The purchasing guidelines in this article

shall be applicable to the expenditure of any

funds of the city, including community

redevelopment tax increment revenue and grant

funds, unless other pu rchasing requirements

are specifically applicable.

6 6 . Even assuming the severance provision of the agreements

exceeded Respondent Ós purchasing authority , the evidence d oes not

clearly and convincingly establish a corrupt intent on

Respondent's part. I f indeed the severance be nefits exceeded the

Respondent Ós purchasing authority that result would appear to

flow from an error in the calculation of the benefits , rather

than from an intentional act inconsistent with the proper

performance of Respondent Ós p ublic duties.

6 7 . Moreover , it is not clear as a matter of law that the

CityÓs purchasing code applied to limit the severance benefits

provided in the employment agreements. If read literally, the

language providing that the purchasing code was Ðapplic able to

the expenditure of any funds of the city,Ñ would mean that

Respondent would be restrained from employing any individual

whose cumulative salary and benefits exceeded $25,000. No

evidence was adduced at the hearing that Respondent Ós authority

to hi re employees was so limited. It is worth noting that

s ection 30 - 63(a) speaks to " supplies, equipment and contractual

services " while the City's purchasing code speaks to "purchasing

guidelines" and "purchasing requirements." This terminology is

inconsist ent with the human relations vernacular generally

applied to regular employees of an organization, such as "salary"

or "compensation" , and compels the conclusion that the ordinance

and code were not intended to limit the compensation paid to

regular employ ees of the city. 7 / Accordingly, Petitioner did not

prove by clear and convincing evidence that Respondent violated

s ection 112.313(6) by entering into employment agreements which

could result in severance payments in excess of $25,000.

6 8 . Petitioner h aving failed to prove by clear and

c onvincing evidence that Respondent violate d s ection 112.313(6),

as alleged in the Order Finding Probable C ause , the Complaint

must be dismissed.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions

o f Law, it is hereby

RECOMMENDED that the C ommission on Ethics issue a Final

Order dismissing the Complaint issued against Respondent in the

instant case.

DONE AND ENTERED this 8 th day of August, 2012, in

Tallahassee, Leon County, Florida.

S

W. DAVID WATKINS

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 Cle rk of the

Division of Administrative Hearings

this 8 th day of August, 2012.

ENDNOTE S

1 / Unless otherwise indicated, all references to the Florida

Statutes are to the 20 10 version, which was the l aw in effect at

the time of the alleged statutory violation s .

2 / Mr. Swaertzlander recalled that some of the agreements for the

other department heads contained errors, although his did not.

3 / At the time the new agreements were prepared, Respondent' s

entitlement to severance pay was already tied to Mr. Johnson's

compensation, since his employment contract was already in

effect.

4 / The Advocate also alleges that Respondent violated s ection

839.13, Florida Statutes, which provides in part:

. . . if any . . . public officer, or any

employee of . . . a public agency . . . shall .

. . falsify any minutes, documents, books, or

any proceedings whatever of or belonging to

any public office within this state or if the

person shall cause or procure any of the

o ffenses aforesaid to be committed, or be in

anywise concerned therein, the person so

offending shall be guilty of a misdemeanor of

the first degree punishable as provided in S.

775.082 or s. 775.083.

5 / "Direct evidence [of wrongful intent] is evidence t hat, if

believed, would prove the existence of [wrongful] intent without

resort to inference or presumption." King v. La Playa - De

Varadero Restaurant , No. 02 - 2502, 2003 WL 435084 *3 n.9 (Fla.

DOAH February 19, 2003) (Recommended Order).

6 / City Attorney Simpson's e - mail of August 24, 2010 , to the City

Commission and Respondent quot ed the following language of

Florida's Supreme Court in Shevin v. Byron, Harless, Schaffer,

Reid & Assocs. , 379 So.2d. 633 (Fla. 1980):

To give content to the public records l aw

which is consistent with the most common

understanding of the term "record," we hold

that a public record, for purposes of section

119.011(1) , is a ny material prepared in

connection with official agency business

which is intended to perpetuate, communicate,

or formalize knowledge of some type. To be

contrasted with "public records" are

materials prepared as drafts or notes, which

constitute mere prec ursors of governmental

"records" and are not, in themselves,

intended as final evidence of the knowledge

to be recorded. Matters which obviously

would not be public records are rough drafts,

notes to be used in preparing some other

documentary material, a nd tapes or notes

taken by a secretary as dictation. Inter -

office memoranda and intra - office memoranda

communicating information from one public

employee to another or merely prepared for

filing, even though not a part of an agency's

later, formal public product, would

nonetheless constitute public records

inasmuch as they supply the final evidence of

knowledge obtained in connection with the

transaction of official business.

It is impossible to lay down a definition of

general application that identifies all items

subject to disclosure under the act.

Consequently, the classification of items

which fall midway on the spectrum of clearly

public records on the one end and clearly not

public records on the other will have to be

determined on a case - by - case ba sis.

Attorney Simpson concluded his e - mail to Respondent by stating:

As represented by the City Manager, the

original documents that were signed contained

errors that were corrected, including the

date, and the revised agreements was (sic)

subsequently executed by the City Manager and

the employees. Based on these facts the

original agreements executed would appear to

be drafts or precursors to the final

employment agreement. As indicated above,

draft documents are not public records.

7 / This conclus ion is consistent with Attorney Helsby's opinion

in his letter of September 29, 2010, that the purchasing

limitation set forth in chapter 30 of the Code of Ordinances

Ðdoes not on its face appear applicable to employment contracts .

. . .Ñ

COPIES FURNIS HED:

Diane L. Guillemette, Esquire

Office of the Attorney General

The Capitol, Plaza Level 01

Tallahassee, Florida 32399 - 1050

[e-mail]

Mark Herron, Esquire

Messer, Caparello and Self, P.A.

2618 Centennial Place

Tallahassee, F lorida 32308

[e-mail]

Brennan Donnelly, Esquire

Messer Caparello and Self, P.A.

2618 Centennial Place

Tallahassee, Florida 32308

[e-mail]

Kaye B. Starling

Florida Commission on Ethics

Po st Office Drawer 15709

Tallahassee, Florida 32317 - 5709

[e-mail]

C. Christopher Anderson, III, Gen eral Co unsel

Florida Commission on Ethics

Post Office Drawer 15709

Tallahassee, Florida 32317 - 5709

Virlindia Doss, Executive Director

Florida Commission on Ethics

Post Office Drawer 15709

Tallahassee, Florida 32317 - 5709

Advocates for the Commission:

Office of the Attorney General

The Capitol, Plaza Level 01

Tallahassee, Florida 32399 - 1050

NOTICE OF RIGHT TO JUDICIAL REVIEW

A party wh o is adversely affected by this Final Order is entitled

to judicial review pursuant to section 120.68, Florida Statutes.

Review proceedings are governed by the Florida Rules of Appellate

Procedure. Such proceedings are commenced by filing the original

no tice of administrative appeal with the agency clerk of the

Division of Administrative Hearings within 30 days of rendition

of the order to be reviewed, and a copy of the notice,

accompanied by any filing fees prescribed by law, with the clerk

of the Distri ct Court of Appeal in the appellate district where

the agency maintains its headquarters or where a party resides or

as otherwise provided by law.