14-001912EC In Re: Robert Skidmore, Iii vs. * Status: Closed Recommended Order on Friday, February 27, 2015.

Summary: Clear and convincing evidence proved commissioner used his position to try to have zoning application denial changed by staff. Also, commissioner tried to have licensing action taken against restaurant because of personal dispute.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

IN RE: ROBERT SKIDMORE, III,

Respondent. Case No. 14 - 1912EC

_______________________________/

RECOMMENDED ORDER

Administrative Law Judge John D. C. Newton, II, of the

Division of Administ rative Hearings heard this case on

September 23 and October 28, 2014, in Tallahassee and Punta

Gorda, Florida, respectively.

APPEARANCES

For Advocate : Diane L. Guillemette, Esquire

Office of the Attorney General

The Capitol, Plaza Level 01

Tallahassee, Florida 32399 - 1050

For Respondent: Emmett Mitchell, IV, Esquire

Coates Law Firm

Suite 1

115 East Park Avenue

Tallahassee, Florida 32301 - 7701

STATEMENT OF THE ISSUE S

A. Did Respondent, Robert Skidmore, III, violate section

11 2.313(6), Florida Statutes (2011), 1/ by using his position as

c ounty c ommissioner to ask a county staff member to approve a

zoning application for Beach Road Boutique?

B. Did Mr. Skidmore violate section 112.313(6) by asking a

county employee to look for and selectively enforce code

violati o ns against J.J. ' s Restaurant?

PRELIMINARY STATEMENT

On March 12, 2 014, the State of Florida, Commission on

Ethics (Commission) , issued an Order Finding Probable Cause

against Mr. Skidmore , raising the issues described above. The

Commission referred the matter to the Division of Administrative

Hearings to conduct a public hearing on the charges , as permitted

by Florida Administrative Code Rule 34 - 5.010 . Initially , the

hearing was scheduled for July 15, 2014. On Mr. Sk idmore ' s

unopposed motion, due to illness in a witness ' s family , the

hearing was continued until September 18, 2014. On the parties '

request , the hearing was continued and bifurcated with one

session to be held on September 23, 2014, in Tallahassee,

Flori da, and one session to be held October 28, 2014, in Punta

Gorda, Florida. The case was heard as scheduled.

Commission Exhibits A through J , K (deposition of Jeff

Ruggieri) , and L were accepted into evidence. The Commission

also presented testimony from Joanna Colburn, Ray Desjardins,

Maryann Franks, Shonna Jenkins, Belinda McGlamory, and Erin

Mullen - Travis. Mr. Skidmore ' s Exhibits 1, 3 ( deposition of Scott

Hemmes), 4 ( deposition of Jill Marie Athens Hemmes), 5, and 6

were admitted. Mr. Skidmore testif ied in his own behalf and

offered the testimony of Tim Krebs.

The parties ordered a T ranscript , which was filed

November 17, 2014. The parties ' joint motion to extend the time

for filing proposed recommended orders was granted. The parties

timely submi tted proposed recommended orders which have been

considered in the preparation of this Recommended Order .

FINDING S OF FACT

Based on the oral and documentary evidence presented at the

final hearing and on the entire record of this proceeding, the

following Findings of Fact are made:

1. At all times relevant to this proceeding , Mr. Skidmore

was a Charlotte County c ommissioner.

Beach Road Boutique Zoning

2. Scott and Jill Hemmes, constituents of Mr. Skidmore,

owned a business known as Beach Road Boutiqu e in Charlotte

County. They sought to obtain a state alcoholic beverage sales

license. In order to obtain a license, the applicant must

demonstrate local zoning approval. Charlotte County Commission

employees enforce and apply zoning regulations in the county.

3. Erin Mullen - Travis is the licensing manager for

Charlotte County Planning and Development. During 2011 , she was

the code compliance and licensing manager . Ms. Mullen - Travis has

worked for Charlotte County over 26 years.

4. One of Ms. Mulle n - Travis ' s duties as code compliance and

licensing manager was the review and approval of the zoning

requirements on applications of establishments wanting alcoholic

beverage licenses.

5. Ms. Mullen - Travis first denied the zoning application of

Beach Road Boutique on February 17, 2011.

6. Mr. and Ms. Hemmes sought Mr. Skidmore ' s assistance

getting approval for their zoning application.

7. Mr. Skidmore called Ms. Mullen - Travis about the

application.

8. Mr. Skidmore told Ms. Mullen - Travis that he had so me

nice people in his office and that he needed help getting zoning

approval for them. In her 26 years of employment with Charlotte

County, Mr. Skidmore was the only county commissioner who had

ever directly sought her assistance with constituent matter s .

Other commissioners had always gone through the chain - of - command.

9. He identified the applicant , and Ms. Mullen - Travis

explained why the zoning had not been approved.

10. Ms. Mullen - Travis felt intimidated by Mr. Skidmore .

Mr. Skidmore , however, did n ot threaten Ms. Mullen - Travis or

explicitly offer any reward available to him because of his

position as county commissioner .

1 1. He did, however , implicitly offer a reward , if she

helped the Hemmes.

1 2. It is common knowledge in Charlotte County that

Ms. Mullen - Travis is a NASCAR fan. Among other things , she

drives a car with Dale Earnhardt and NASCAR badges and decals .

1 3. During the call, Mr. Skidmore asked Ms. Mullen - Travis

about her affinity for NASCAR. He also offered to get her an

autographed photo of Rusty Wallace (a NASCAR driver) and tickets

to a race. He told her that he had gone to school with Rusty

Wallace's son. This is true. And Ms. Mullen - Travis could not

have known it without Mr. Skidmore telling her.

1 4. Given the context, Ms. Mullen - T ravis accurately

considered that the tickets and photo were offered in exchange

for her approval of the application to the benefit of the Hemmes.

Also, the call was made in Mr. Skidmore's official capacity.

15. Charlotte County has a Home Rule Charter (Ch arter) .

Section 2.3(A)(1) of the Charter makes the county administrator

responsible for all administrative matters and operations.

Section 2.3(C)(1) states: " Except for purposes of inquiry and

information , the members of the board of county commissioner s

shall not interfere with the performance of the duties of any

employee of the county who is under the direct or indirect

supervision of the county administration. " Also, the

long - established practice was for commissioners to only contact

agency director s.

16. Mr. Skidmore's call to Ms. Mullen - Travis was contrary

to the Charlotte County Charter and the practice under it.

T herefore, it was not an authorized act pursuant to his duties or

authoritie s as a county commissioner.

17. Mr. Skidmore and Ms. Mullen - Travis were the only

participants in the call. He denies t he conversation.

Ms. Mullen - Travis ' s account is more credible. This is based upon

her contemporaneous communications about the call, the common

recollection of all witnesses of a NASCAR componen t to the

conversation , the fact that she could not otherwise have known

Mr. Skidmore went to school with Rusty Wallace's son , the

relative personal interests of the witnesses in the outcome of

the proceeding, and the demeanor of the witnesses, particularly

of Mr. Skidmore 's .

18. Shonna Jenkins worked as a contractor licensing

investigator for Charlotte County for a little over seven year s .

She held that position in 2011 and reported to Ms. Mullen - Travis .

19. Mr. Skidmore had obtained Ms. Jenkins cell phone

number. He had a practice of calling her directly to check on

contractor licensing matters. He also contacted Ms. Jenkins to

ask her to approve the Beach Road Boutique zoning application.

J.J. ' s Restaurant

2 0. After a meeting held on March 3 , 2011, Mr . Skidmore

flagged Ms. Jenkins down in the parking lot. He asked her to " do

him a favor, " and " go shut them [J.J. ' s Restaurant] down. I want

them out of this f ** ing town. " Mr. Skidmore wanted Ms. Jenkins

to find code violations for J.J. ' s Restaurant .

2 1 . Mr. Skidmore said that he would make sure that

Ms. Jenkins got a pay raise or a pay grade increase for this.

2 2. Either the ex - boyfriend or ex - husband of Mr. Skidmore ' s

wife and father of her child had an interest in J.J. ' s

Restaurant . There was confl ict between the two families.

Mr. Sk idmore had also requested the Charlotte County d irector of

Growth Management, Jeff Ruggieri , to take code enforcement

actions against J.J. ' s Restaurant .

2 3. Ms. Jenkins was intimidated and feared her job with the

c ounty was in jeopardy if she did not do as Mr. Skidmore asked.

2 4. Ms. Jenkins reported the conversation to

Ms. Mullen - Travis and Joanna Colburn, a licensing investigator,

immediately afterwards. Ms. Jenkins was visibly upset and

shocked. She also contempora neously documented the incident.

25. Ms. Jenkins is and has been frank about her dislike for

Mr. Skidmore.

26. This hostility , as well as the mental and emotional

difficulties Ms. Jenkins suffered as a result of her employment

and dealings with Mr. Ski dmore , does not undermine her testimony.

In light of the witnesses' demeanor and corroborating evidence,

her testimony is c redible . In addition, although evidence

established Ms. Jenkins was taking several medications, the

record does not indicate that t he medications in any way affect a

person ' s memory or veracity.

27. Mr. Skidmore ' s requests to Ms. Jenkins and Mr. Ruggieri

to act against J.J.'s Restaurant were in violation of the

Charlotte County Charter and , therefore , not authorized acts

pursuant to h is duties or responsibilities as a county

commissioner .

CONCLUSIONS OF LAW

28. The Division of Administrative Hearings has

jurisdiction over the subject matter of this proceeding and of

the parties pursuant to s ections 120.569 and 120.57(1), Florida

Stat utes (2014). Section 112.322 and Florida Administrative Code

Rule 34 - 5.0015 authorize the Commission to conduct investigations

and to make public reports on complaints concerning violations of

c hapter 112 , part II , Florida Statutes (Code of Ethics for Pub lic

Officers and Employees).

29. The Commission charges Mr. Skidmore with two violations

of the prohibitions of section 112.313(6). That law states:

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. Th is section shall not

be construed to conflict with s. 104.31.

Elements of the Charged Offenses

3 0. T o prove the alleged violations , the Commission must

prove each of the elements of the violation. The elements, in

the context of this case are: (1) Mr. S kidmore is a public

officer; (2) he corruptly used or attempted to use his official

position; (3) to secure a special privilege or benefit; and

(4) for himself or others. Section 112.312(9) defines corruptly

like this:

" Corruptly " means done with a wrongf ul

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 proper performance of

his or her public duties.

3 1. To satisfy t he statutory element of corrupt intent, the

Commission must demonstrate with clear and convincing evidence

that Respondent acted " with reasonable notice that [his] conduct

was inconsistent with the proper performance of [his] public

duties and would be a v iolation of the law or the code of

ethics. " Blackburn v. State, Comm ' n on Ethics , 589 So. 2d 431,

434 (Fla. 1st DCA 1991). " [ D ] irect evidence of [wrongful] intent

is often unavailable. " 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) ( " [Intent ] is not usually the

subject of direct proof. " ).

3 2. Circumstantial evidence may prove the wrongful intent

which must be shown to establish a violation of section

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 circumstantial evidence and by inferences drawn

from examining the scheme its elf that demonstrate that the scheme

was reasonably calculated to deceive persons of ordinary prudence

and comprehension. " (internal quotation marks omitted) ) . For

instance, such intent may be inferred from the public servant ' s

actions. See Swanson v. S tate , 713 So . 2d 1097, 1101 (Fla 4th

DCA 1998) (Actions manifest intent.); and G.K.D. v. State ,

391 So. 2d 327, 328 - 29 (Fla. lst 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 the probable consequences of his

actions. " ) .

3 3. Skidmore was a public officer at the relevant time.

The remaining elements will be examined separately for each

charge.

Burden and Standard of Proof

3 4 . The Commission seeks a fine of $10,000 for each alleged

violation , as well as public censure and reprimand. The

complainant in an administrative proceeding bears the burden of

proving its allegations by a preponderance of the evidence. See

Dep ' t of Ban king & Fin., Div. of Sec. & Investor Prot. v. Osborne

Stern & Co. , 670 So. 2d 932, 935 (Fla. 1996) ( " The general rule

is that a party asserting the affirmative of an issue has the

burden of presenting evidence as to that issue . " ); Fla. Dep ' t of

Transp. v. J.W.C. Co., Inc . , 396 So. 2d 778, 788 (Fla. 1st DCA

1981); Vero Beach Land Co., LLC v. IMG Citrus, Inc. , Case

No. 08 - 5435 (Fla. DOAH March 4, 2009 ; Fla D ep't of Agric.

& Consumer Servs. July 20, 2009), aff ' d IMG Citrus, Inc. v. Vero

Beach Land Co . , LL C , 4 6 So. 3d 1014 (Fla. 4 th DCA 2010).

Consequently, t he Commission bears the burden of proof.

Commission proceedings that seek recommended penalties against a

public officer or employee require proof of the alleged

violation(s) by clear and convincing evide nce. See Latham v.

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

Therefore, the Commission must prove the elements of the alleged

violations by clear and convincing evidence.

35. Clear and convincing evidence is an " intermediate

standard, " " r equir[ing] more proof than a ' preponderance of the

evidence ' but less than ' beyond and to the exclusion of a

reasonable doubt. '" In re Graziano , 696 So. 2d 744, 753 (Fla.

1997). For proof to be considered " clear and convincing , . . .

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 Davey , 645 So. 2d

398, 404 (Fla. 1994), quoting with approval, Slomowitz v. Walker ,

429 So. 2d 7 97, 800 (Fla. 4th DCA 1983); see also In re Adoption

of Baby E.A.W. , 658 So. 2d 961, 967 (Fla. 1995) ( " The evidence [in

order to be clear and convincing] must be sufficient to convince

the trier of fact without hesitancy. " ). " Although this standard

of pro of may be met where the evidence is in conflict, . . . it

seems to preclude evidence that is ambiguous. " Westinghouse

Electric Corp. v. Shuler Bros., Inc. , 590 So. 2d 986, 989 (Fla.

1st DCA 1991).

Beach Road Boutique Zoning

36. Clear and convincing eviden ce proves that Mr. Skidmore

sought to obtain a benefit for Mr. and Ms. Hemmes. He sought to

do it using his direct access to county employees , even though the

Charlotte County Charter prohibited him from doing so. This

establishes his wrongful intent. M r. Skidmore's offer of an

inducement also demonstrates wrongful intent.

J.J. ' s Restaurant

37. Clear and convincing evidence proves that Mr. Skidmore

sought to obtain a personal benefit, harm to the father of his

w ife 's child , using his direct access to cou nty employees , even

though the Charlotte County Charter prohibited him from doing so.

This establishes his wrongful intent.

Conclusion

38. The Florida Commission on Ethics proved by clear and

convincing evidence that Mr. Skidmore twice v iolated section

11 2.313(6).

39. Mr. Skidmore presented a defense theory that the

testimony against him was part of a conspiracy by the witnesses ,

who were county employees opposed to his support for reducing

county expenditures, support for staff reductions, and advocacy

of privatization. The evidence for the theory and the theory are

not persuasive. They do not account for the basic consistency of

testimony from several witnesses, basic consistency of the

testimony with contemporaneous documents, Ms. Mullen - TravisÓs

knowl edge of Mr. Skidmore attending school with Rusty WallaceÓs

son, and the knowledge of Ms. Jenkins and Mr. Ruggieri that there

was a contentious relationship between Mr. Skidmore and his wife

with someone affiliated with J.J.Ós Restaurant.

40 . The Commission seeks the maximum penalties provided by

law -- $10,000 for each charge .

4 1 . Neither chapter 112, p art II, Florida Statutes, n or

Florida Administrative Code Chapter 34 - 5 identifies mitigating or

aggravating circumstances.

4 2 . The Commission does not identify facts or rationale

supporting its proposed maximum penalty.

4 3 . The penalties of public censure and reprimand are

severe. By any measure, absent evidence to the contrary, $ 1 0,000

per offense is a very significant fine. It is the same as the

maximum fine for first and second - degree felonies. § 775.083,

Fla. Stat. (2014).

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that a final order and public report be

entered finding that Respondent, Robert Skidmore , III, twice

violated s ection 112.313(6 ) and that he be fined $ 5,000 for each

violation for a total of $ 10 ,0 0 0 , together with public censure and

reprimand.

DONE AND ENTERED this 27th day of February , 2015 , in

Tallahassee, Leon County, Florida.

S

JOHN D. C. NEWTON, II

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 wit h the Clerk of the

Division of Administrative Hearings

this 27th day of February , 2015 .

ENDNOTE

1/ All references to the Florida Statutes are to the 2011

compilation unless indicated otherwise.

COPIES FURNISHED:

Virlindia Doss, Executive Director

Fl orida Commission on Ethics

Post Office Box 15709

Tallahassee, Florida 32317 - 5709

(eServed)

C. Christopher Anderson, III, General Counsel

Florida Commission on Ethics

Post Office Box 15709

Tallahassee, Florida 32317 - 5709

(eServed)

Millie Wells Fulfo rd, Agency Clerk

Florida Commission on Ethics

Post Office Box 15709

Tallahassee, Florida 32317 - 5709

(eServed)

Diane L. Guillemette, Esquire

Office of the Attorney General

The Capitol, Plaza Level 01

Tallahassee, Florida 32399 - 1050

(eServed)

Emmett Mitc hell, IV, Esquire

Coates Law Firm

Suite 1

115 East Park Avenue

Tallahassee, Florida 32301 - 7701

(eServed)

N OTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Orde r. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this c ase.