14-001582EC In Re: Adam Prins vs. * Status: Closed Recommended Order on Wednesday, August 20, 2014.

Summary: Respondent did not corruptly use his position as a member of the Live Oak City Council for the benefit of himself or others.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

IN RE: ADAM PRINS, Case No. 14 - 1582EC

Respondent.

_______________________________/

RECOMMENDED ORDER

A final hearing was conducted in this case on June 16 ,

20 14 , in Live Oak , Florida , before Barbara J . Staros ,

Administrative Law Judge with the Division of Administrative

Hearings .

APPEARANCES

For Advocate : Melody A. Hadley , Esquire

Office of the Attorney General

The Capitol , Plaza Level 01

Tallahassee, Florida 32399 - 1050

For Respondent: Jimmy E. Hunt , Esq uire

Jimmy Hunt , P.A.

Post Office Box 3006

654 Southeast Baya Drive

Lake City , Florid a 3 20 56 - 3006

STATEMENT OF THE ISSUE

The issue is w hether Respondent violated s ection

112.313(6), Florida Statutes (20 13 ) , by corruptly using h is

position as a member of the Live Oak City Council to direct the

Live Oak Fire Chief to perform duties at his sisterÓs apa rtment,

there by se curing a benefit for himself or others, and, if so,

what is the appropriate penalty. 1 /

PRELIMINARY STATEMENT

On March 1 2 , 20 14 , the Florida Commission on Ethics

(Commission) issued an Order Finding Probable Cause to believe

that Responde nt Adam Prins (Respondent), as a member of the Live

Oak City Council , violated s ection 112.313(6), Florida Statutes.

The Commission forwarded the case to the Division of

Administrative Hearings on April 8 , 20 14 .

The case was assig ned to Administrative Law Judge W. David

Watkins. A Notice of Hearing dated April 17 , 20 14 , scheduled

the hearing for June 16 , 20 14 . On June 13, 2014, the case was

transferred to the undersigned to conduct all further

proceedings. The hearing took place as scheduled.

At hearing, the Advocate called four witnesses: George

ÐChadÑ Croft , Alan Bedenbaugh , Robert E. Farley, and Beau

Jackson . The Advocate did not offer any e xhibit s into evidence .

Respondent testified on his own behalf and called eight ot her

witness es: Scott Lane, Leslie Allen, Bennie Thomas, Deborah

Prins, Marilyn Prins, Wen dell Hill, David Poole, and Robert

Cathcart . RespondentÓs exhibits numbered 2, 5, and 6 were

admitted into evidence. RespondentÓs Exhibits 3 and 4 were

proffered.

A ruling on the admissibility of RespondentÓs Exhibit 1 was

withheld. Upon consideration, RespondentÓs Exhibit 1 is

admitted.

A two - volume T ranscript was filed on Ju ly 8 , 20 14 . The

parties timely filed their Proposed Recommended Orders which

have been duly considered in the preparation of this Recommended

Order.

Refer ences to the Florida Statutes are to the 20 12 version,

unless otherwise indicated.

FINDINGS OF FACT

Background

1. At all times material to this proceeding, Respondent

served as a membe r of the Live Oak City Council. At the time of

the events giving rise to this proceeding, Respondent had served

as a councilman for two years, and had been employed full - time

as a corrections officer for the Suwannee County SheriffÓs

Office for five years .

2. Respondent is subject to the requirements of Part III,

c hapter 112, Florida Statutes, the Code of Ethics for P ublic

O fficers and E mployees, for his acts and omissions during his

tenure as a member of the City Co uncil .

3 . George Ð Chad Ñ Croft is the Fire Chief for the City of

Live Oak. At the time the relevant events took place, he ha d

been the Fire Chief of the City of Live Oak for a bout 10 years.

Prior to that, he served as the Assistant Fire Chi ef, as a

Lieutenant with the fire department, and a s a firefighter. He

has worked for the Fire Department for over 25 years.

4. Chief Croft injured his shoul der in July 2011. He had

surgery on his shoulder on May 30 or 31, 2012. The injury was

deemed work related and thus placed him under workers Ó

co mpensation. Chief Croft was on workersÓ compensation leave

during the relevant time period. However, he was coming in

periodically as needed to take care of certain city business as

instructed by then City Administrator Bob Farley. This includ ed

attendi ng city council meetings, answering e - mails, working on

the fire department budget , and working on time sheets. Chief

Croft considered these assignments to be Ðlight duty.Ñ

Tropical Storm Debby

5 . In late June of 2012, Live Oak was inundated with rain

from Tropical Storm Debby. There was widespread flooding of

businesses and homes. The flooding began the evening of

June 25, 2012 , but it had been raining for three or four days

prior to that e vening . While Live Oak is prone to flooding,

multiple witnes ses testified to the severity of the flood and

the damage it caused. This was an unusually severe flood, even

for Live Oak.

6. The city fire station was the hub for the CityÓs

initial response to the storm and resulting flooding , and

operated as the Eme rgency Operations Center (EOC) until a formal

EOC was opened . The fire station was noisy and bustling with

activity the evening of June 25 , as one would expect during such

an emergency. Sand had been dumped in one of the fire station

bays, and state pris oners and volunteers were filling sandbags.

Residents were coming in to pick up the sandbags. Calls were

coming in for rescue and assistance.

7 . On June 25, 2012, Respondent had worked the 6:00 a.m.

to 6:00 p.m. shift at the Suwannee County jail, and t hen went

home. Shortly after 8:00 p.m., Responde nt received a call from

Keith Mi xon, a newly elected councilman, who advised Respondent

that Helvenston Street, a main street in Live Oak, was flooding.

Respondent went to Helvenston Street to meet Mr. Mixo n and saw

the flooding. Respondent called the police chief , Buddy

Williams, and told him that barricades were needed to keep

passing cars out of the water on Helvenston Street. Respondent

and Mr. Mixon stayed in that area for a while to assist in

traffic control until help arrived. Respondent then went to the

fire station .

8 . While at the fire station, Respondent inquired as to

the whereabouts of the c ity a dministrator, Bob Farley.

9 . Alan Bedenbaugh is the training safety officer for the

Live Oak Fi re Department, and the safety officer for the City of

Live Oak. At the time of the storm, Chief Croft was his

supervisor, and continues to serve in that capacity .

Mr. Bedenbaugh was at the fire station on the evening of

June 25 , as he was working a 24 - ho ur shift. Mr. Bedenbaugh

called Chief Croft , who was at home, to update him on how the

city was being impacted by the storm. He informed Chief Croft

that Respondent was at the fire station asking the whereabouts

of department heads who were not at the fi re station . During

emergencies such as tropical storms, the Fire Chief is

responsible for directing the necessary assistance to various

entities to minimize the overall impact of the storm to the

city. Examples of his responsibilities would be rescuing

c itizens and assisting with road closures. Chief Croft had

information regarding the whereabouts of the department heads,

and drove to the fire station in his city - owned vehicle to give

Respondent this information. When Chief Croft arrived at the

fire sta tion, it was dark.

10 . Chief Croft informed R espondent that the city

administrator, Bob Farley, and the public works director had

gone to an out - of - town conference. This news upset Respondent.

Respondent then called Mr. Farley at 10:35 p.m. and asked

M r. Farley where he was and why was he not at the fire station.

Mr. Farley recalls Respondent saying, ÐWhere the hell are youÑ

and telling him to Ðget your ass down here,Ñ and informed

Mr. Farley that people were being rescued from their homes.

M r . Farley responded that he did not know the flooding was that

bad , informed Respondent that he had not yet left town for the

conference, and drove into town. At that time, Mr. Farley lived

about nine miles outside of the City. When Mr. Farley got

there, he met w ith Respondent. Chief Croft and Police Chief

Williams were there as well.

1 1 . Four witnesses , including Respondent, testified as to

what Respondent said to Mr. Farley during this telephone call .

Chief Croft and Mr. Bedenbaugh , who were at the fire stat ion and

overheard Respondent talking on the phone, testified that

Respondent told Mr. Farley that he needed to come down to the

fire station or he could be dismissed. However, Respondent and

Mr. Farley insist that Mr. Farley was not threatened about his

j ob or about anything else. While Responde ntÓs tone was harsh,

Mr. Farley was not offended by RespondentÓs tone of voice or

choice of words in light of all the circumstances surrounding

the phone call . Respondent and Mr. Farley were the participants

of th e phone call and, therefore, heard both sides of the

conversation and its context. Therefore, more weight is given

to their description of th e phone call between Respondent and

Mr. Farley that night than to those witnesses who overhear d only

one side of t he phone call in a noisy environment . In any

event, Mr. Farley drove to the fire station, saw the extent of

the flooding, and agreed that he needed to be there. After

arriving at the fire station, Mr. Farley authorized Respondent

to use a city truck to d eliver sandbags.

1 2 . Mr. Farley met Mayor Garth Nobles at City Hall where

Mr. Nobles signed a formal Declaration of Emergency. The

Declaration is dated June 26, 2012 at 12:01 a.m.

1 3 . At some point during the evening, Respon dent assisted

with removin g several Hispanic residents from a flooded mobile

home in the area. Respondent speaks Spanish, and translated for

these residents during this process. Respondent also filled

sandbags and , at some point during the storm , delivered the

filled sandbags to residentsÓ homes.

1 4 . At 1:08 a.m. on June 26, Marilyn Prins, RespondentÓs

mother, called Respondent and informed him that the re was

flooding in an area of town called Tara Trace where his sister,

Debby Prins , lived. Mrs. Prins asked her son to check on his

sister who lived alone .

1 5 . Respondent and Chief Croft got into CroftÓs assigned

city vehicle and drove to Tara Trace. There is conflicting

testimony as to exactly what was said prior to their leaving.

Chief Croft did not recall RespondentÓs exact words, but

testified that Respondent essentially told him to get in the

car, and that they were going for a ride. Respondent testified

that Croft offered to go with him. Mr. Bedenbaugh testified

tha t he overheard Respondent say ÐLetÓs get in the car and go

for a ride.Ñ Mr. Croft, while acknowledging that Respondent was

not verbally abusive to him and made no actual threats against

him, insists he felt compelled to accompany Respondent because

of what he overheard in the fire station during the phone

con versation between Respondent and Mr. Farley. Regardless of

whether Respondent asked Chief Cr o ft to accompany him or whether

Chief Cr o ft volunteered, there is no dispute that Respondent did

not threaten him.

1 6 . Chief Croft drove to Tara Trace with Respo ndent in the

vehicle. He was familiar with Tara Trace but did not know Debby

Prins or where she lived. Respondent pointed out her apartment.

1 7 . When they arrived at Debby PrinsÓ apartmen t, there was

already flood water in the home. Debby Prins was in side and

asked if Respondent and Chief Croft would help move seven boxes

of food out of a bedroom closet and onto the kitchen counter to

keep the boxes out of the flood water. Again, there is

conflicting testimony about exactly what was and was not said,

but all three persons moved the boxes as Ms. Prins had

requested. Respondent and his sister saw Chief Croft wince in

pain while moving the boxes. When Respondent asked him what was

wrong, Chief Croft responded that he recently ha d shoulder

surgery . Chie f Croft d i d not assist in moving any boxes after

that.

1 8 . There is again conflicting testimony about what

happened after Respondent and Chief Croft exited Debby PrinsÓ

apartment. The totality of the evidence establishes that

Respondent and Chief Croft then left to go knock on doors of

several neighbors in the Tara Trace subdivision to warn them

about the impending flood. Flooding was severe in the Tara

Trace neighborhood, and some of Ms. PrinsÓ neighbors were

elderly. This was done in the very early h ours of the morning

of June 26 , at a time when , but for Respondent and Chief Croft

going door to door to awake and alert them, most residents would

have be en asleep and otherwise unaware of the severity of the

flood .

1 9 . After leaving Tara Trace, Respond ent returned to the

fire station and continued volunteering his time to assist the

residents of Live Oak. After having worked a 12 - hour shift at

the county jail, R espondent worked as a volunteer from 8:00 p.m.

Monday, June 25 , until about 10:00 a.m. on Th ursday, June 28.

Respondent and other city councilmen volunteered their services

and assisted residents by delivering sandbags to residents in

their districts.

20 . At some point after the events of June 25, Chief Croft

told the Mayor, Sonny Garth Nob les, about going to Tara Trace

and moving boxes in Ms. PrinsÓ apartment. Approximately one

year after Tropical Storm Debby, Chief Croft prepared a written

statement in which he addre ssed the above described events of

June 25, 2012, at Mayor NoblesÓ reques t. In this statement,

Chief C roft stated that he was directed by Respondent to go to

Tara Trace and to move and relocate boxes in Ms. PrinsÓ

apartment, and that he felt that Respondent misused his powers

as a Councilman in doing so .

2 1 . Chief Croft did not inform Mr. Farley of the events

regarding moving boxes at Debby PrinsÓ home, or of any problem

Chief Croft may have had with RespondentÓs a ctions the night of

June 25 and early morning of June 26 . Mr. Farley was Chief

CroftÓs immediate supervisor. M r. Farley learned about these

allegations upon reading a newspaper article about the ethics

complaint investigation. The investigation did not commence

until more than one year after the events of June 25 and 26 ,

2012 .

2 2 . In June 2012, while Mr. Farley as City Administrator

supervised at - will employees, such as the Fire Chief, a majority

vote of the City Council had the power to terminate such

employees. Now retired, Bob Farley was terminated from his

position as City Administrator by the City Council in October

2012.

2 3 . The Fire Department has no written or unwritten policy

regarding the removal or relocation of personal private property

during an emergency.

2 4 . Based on the totality of the evidence, there is not

clear and convincing evidence t hat Respondent corruptly directed

Chief Croft to perform duties at his sisterÓs apartment in an

attempt to secure a benefit for himself or others.

CONCLUSIONS OF LAW

2 5 . The Division of Administrative Hearings has

jurisdiction over the parties and the s ubject matter of this

proceeding. See § 120.57(1), Fla. Stat. (20 14 ).

2 6 . Section 112.322, Florida Statutes, and Florida

Administrative Code Rule 34 - 5.0015 authorize the Commission to

conduct investigations and to make public reports on complaints

conce rning violations of Part III, c hapter 112, Florida

Statutes, which is referred to as the Code of Ethics for Public

Officers and Employees.

2 7 . The burden of proof, absent a statutory directive to

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

issue of the proceedings. Dep Ó t of Trans p . v. J.W.C. Co. , 396

So. 2d 778 (Fla. 1st DCA 1981); Balino v. Dep Ó t of HRS , 348

So. 2d 349 (Fla. 1st DCA 1977). In this proceeding, the

Commiss ion, through its Advocate, is asserting the affirmative :

that Re spondent violated s ection 112 . 313(6) b y misusing his

position to attempt to secure a benefit fo r himself or others.

2 8 . Commission proceedings which seek recommended

penalties against a public officer or employee require proof of

the alleged violation(s ) by clear and convincing evidence. See

Latham v. Fl a . CommÓn on Ethics , 694 So. 2d 83 (Fla. 1st DCA

1997).

2 9 . As noted by the Supreme Court of Florida:

Clear and convincing evidence requires that

the evidence must be found to be credible;

the facts to which the witnesses testify

must be distinctly remembered; the testimony

must be precise and explicit and the

witnesses must be lacking in confusion as to

the facts in issue. The evidence must be of

such weight that it produces in the mind of

the trier of fact a firm belief or

conviction, without hesitancy, as to the

truth of the allegations sought to be

established.

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

Slo mo witz v. Walker , 429 So. 2d 797, 800 (Fla. 4 th DCA 1983) ) .

30 . Sect ion 1 12.313(6) provides as follows :

MISUSE OF PUBLIC POSITION. - Î No public

officer, employee of an agency, or local

government attorney shall corruptly use or

attempt to use his or her official position

or any property or resource which may be

within his or her trust, or perform his or

her official duties, to secure a special

privilege, benefit, or exemption for

himself, herself, or others. This section

shall not be construed to conflict with

s. 104.31.

3 1 . The term "corruptly" is defined by s e ction 112.312(9)

as follows:

(9) "Corruptly" means done with a wrongful

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 the pr oper performance of

his or her public duties.

3 2 . The Order Finding Probable Cause alleges that there is

probable cause to believe that the Ð R espondent, as a member of

the City Council of the City of Live Oak, Florida, violated

s ection 112.313(6) by usi ng his position to direct the Live Oak

Fire Chief to perform duties at his sisterÓs apartment.Ñ

3 3 . In order to establish a violation of section

112.313(6), the Advocate must establish that: 1) the Respondent

is or was a public officer or employee; 2) R espondent used or

attempted to use his or her official position or any property or

resources within his trust; 3) RespondentÓs actions were taken

in order to secure a special benefit for himself or for others;

and 4) RespondentÓs actions were taken corrupt ly.

3 4 . In this case, it is clear that Respondent , as a member

of the Live Oak City Council, is a public officer and was a

public officer at the time of the alleged incidents in this

case.

3 5 . However, the totality of the evidence adduced at

hearing failed to clearly and convincingly establish that

Respondent used or attempted to use his position as a member of

the City Council to secure a special privilege for himself or

others, i.e., his sister, much less that he did so with corrupt

intent.

3 6 . While Chief Croft asserts that he felt threatened

because of the telephone conversation he overheard in the fire

station, he acknowledged that Respondent was not verbally

abusive to him at the fire station and did not make any actual

threats against him. Moreover, Chief CroftÓs testimony

regarding the events of June 25 and 26 did not produce in the

mind of the undersigned a firm belief or conviction, without

hesitancy, that threats or intimidation were used by Respondent

when they rode in the ChiefÓs city - owned car to check on Debby

Prins and other residents of the Tara Trace neighborhood.

3 7 . There is no evidence that Mrs. Prins specifically

referenced boxes that needed to be moved at her daughterÓs home

in Tara Trace in her phone call to her son. The purpose of the

trip was not to move the boxes. After Respondent and Chief

Croft arrived at her apartment, Debby Prins asked them to move

seven boxes to higher places (e.g., the kitchen table) within

the apartment. Her apartment was one of several which

R espondent and Chief Croft went to in an effort to warn people

of the flood. Moving seven boxes within an apartment at the

request of a city resident during an emergency situation was not

the focus of the trip.

3 8 . Did RespondentÓs sister receive a ben efit from

Respondent and Chief Croft? Her boxes of food were moved from

the floor of a closet to a higher location within the apartment.

Was this benefit meaningfully greater than the benefit received

by other residents? The undersigned is not persuaded that it

was. The moving of the boxes was one of many things done by

Respondent, Chief Croft, and others to help residents during

this emergency. It is concluded that moving the boxes was

incidental to the main purpose of Respondent and Chief CroftÓs

tri p to Tara Trace , i.e., to check on RespondentÓs sister and

other residents in their severely flooded neighborhood, and to

warn them of the emergency of the impending flood.

3 9 . Even if moving t he boxes were to be construed as a

benefit to others , the Adv ocate must prove that Respondent acted

ÐcorruptlyÑ in securing that special benefit for his sister.

40 . To satisfy the statutory element of corrupt intent,

the advocate must demonstrate with clear and convincing evidence

that Respondent acted Ðwith reaso nable notice that [his] conduct

was inconsistent with the proper performance of [his] public

duties and would be a violation of the law or the code of

ethics . Ñ Blackburn v. State, CommÓn on Ethics , 589 So. 2d 431,

434 (Fla. 1 st DCA 1991).

4 1 . The evide nce did not show that Respondent acted with

reasonable notice that his conduct was inconsistent with the

proper performance of his public duties. Blackburn , supra . In

this case, the evidence persuasively established that there were

legitimate, non - corrup t reasons for Respondent to go to Tara

Trace, including to his sisterÓs apartment, with the Fire Chief

in a city - owned vehicle, in the midst of a significant emergency

event.

4 2 . The conclusion that R espondent was not corruptly

motivated to take the acti ons he did is bolstered by the

extensive time he spent engaged in other volunteer activities

helping many other residents of Lake City, including working

with city officials in addition to Chief Croft , for the days

following the events of June 25 and 26, 2 012. The undersigned

concludes that no violation of section 112.313(6) has been

demonstrated.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED t hat the Commission enter a f inal o rder

f inding that Responden t , Adam Prins , did not violate s ection

112.313(6), Florida Statutes .

DONE AND ENTE RED this 20 th day of August , 20 14 , in

Tallahassee, Leon County, Florida.

S

Barbara J. Staros

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Buildi ng

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 20 th day of August , 20 14 .

END NOTE

1 / At hearing and again in th e Proposed Recommended Order, the

Advocate raised the allegation that Chief Croft has been subject

to retaliation by Respondent. The Order Finding Probable Cause

does not charge Respondent with this offense and, therefore,

does not place Respondent on not ice that this iss ue would be

raised. Respondent cannot be disciplined for an offense of

which he is not charged. Accordingly, no findings of fact or

conclusions of law will address this issue herein . See

Trevisani v. DepÓt of Health , 908 So. 2d 1108 (Fl a. 1 st DCA

2005) .

COPIES FURNISHED :

Melody A. Hadley , Esquire

Office of the Attorney General

The Capitol, Plaza Level 01

Tallahassee, Florida 32399 - 1050

J immy Hunt , Esquire

Jimmy Hunt, P.A.

6 54 Southeast Baya Drive

Post Office Box 3006

Lake City , Fl orid a 3 20 56 - 3006

C. Christopher Anderson, III

General Counsel

Florida Commission on Ethics

Post Office Drawer 15709

Tallahassee, Florida 32317 - 5709

Kay e Starling , Agency Clerk

Florida Commission on Ethics

Woodcrest Office Park

325 John Knox Road

Suite 2 00, Building E (32303)

Post Office Drawer 15709

Tallahassee, Florida 32317 - 5709

Virlindia Doss , Executive Director

Florida Commission on Ethics

Woodcrest Office Park

325 John Knox Road

Suite 20 0, Building E (32303)

Post Office Drawer 15709

Tallahassee, F lorida 3231 7 - 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 i ssue the Final Order in this case.