15-004877EC In Re: James L. Manfre vs. * Status: Closed Recommended Order on Tuesday, February 16, 2016.

Summary: Advocate proved by clear and convincing evidence that Respondent misused his position in his use of the agency credit card, but not in his use of the agency vehicle; and that he failed to disclose a gift valued at more than $100 as required.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

IN RE: JAMES L. MANFRE , Case No. 15 - 4877 EC

Respondent.

_______________________________/

RECOMMENDED ORDER

A final hearing was conducted in this case on December 2

and 3, 2015 , in Tallahassee , Florida , before Suzanne Van Wyk ,

Administrative Law Judge with the Division of Administrative

Hearings .

APPEARANCES

For Advocate : Elizabeth A. Miller , Esquire

Office of the Attorney General

The Capitol , Plaza Level 01

Tallahassee, Florida 32399 - 1050

For Respondent: Linda Bond Edwards , Esq uire

John David Marsey, Esquire

Rumberger, Kirk and Caldwell, P.A.

215 South Monroe Street , Suite 702

Tallahassee , Florid a 32301

STATEMENT OF THE ISSUE S

Whether Respondent violated section 11 2.313(6), Florida

Statutes (2013) , 1 / by corruptly using his position as Sheriff of

Flagler County to obtain a benefit for himself or other s; or

section 112.3148(8), by failing to report a gift valued in

excess of $100.00; and , if so, what penalty should be imposed.

PRELIMINARY STATEMENT

On July 25, 2015 , the Florida Commission on Ethics

(Commission) issued an Order Finding Probable Cause to believe

that Respondent , James L. Manfre , as Sheriff of Flag l er County,

Florida , violated s ection s 112.313(6) and 112.3148(8) , Florida

Statutes. The Commission forwarded the case to the Division of

Administrative Hearings on Septemb er 1, 2015 .

The case was assigned to the undersigned, who entered a

Notice of Hearing scheduling the final hearing for December 2

and 4, 20 1 5 . The hearing commenced as scheduled, but was

completed on December 3, rather than December 4, 2015.

At hearin g, the Advocate offered the testimony 2 / of

Julia Cobb Costas, Linda Tan n uzzi, Frederick Justin Staly,

Brandy Hanwell, Timothy Bo Schmitz, Brian McMillan, Debra Lynn

Staly, Robert Malone, and Respondent . Advocate Ós E xhibits

1 through 3, 5 through 21 , and 2 3 were admitted in to evidence.

Respondent testified on his own behalf and RespondentÓs E xhibits

6 through 9 were admitted into evidence.

A four - volume T ranscript of the proceedings was filed on

January 7, 2015 . The parties timely filed their Proposed

Recommended Orders which have been duly considered in the

preparation of this Recommended Order.

FINDINGS OF FACT

1 . Respondent, James L. Manfre, served as Flagler County

Sheriff from January 2001 through January 2005 (RespondentÓs

first term) . Respo ndent was re - elected Sheriff in 2012 and

began his second term on January 8, 2013.

2 . Respondent is a member of the Florida Bar. Between his

first and second terms, Respondent was engaged in the private

practice of law , with a primary focus on land use matters.

3 . While in private practice, Respondent represented two

clients involved in cases with the Florida Ethics Commission.

One client was a complainant who alleged misuse of position by a

public official.

4 . Former Undersheriff , Frederick Staly , served as

Flagler County Undersheriff with Respondent from January 2013 to

April 17, 2015.

5 . Respondent chose Staly as Undersheriff, in part,

because he had almost 40 years Ó experience in law enforcement,

and had most recently served as Undersheriff in Orange County,

Florida.

6 . Undersheri f f Staly advised Respondent on matters

pertaining to policy and personnel decisions.

7 . In December 2012, just prior to RespondentÓs second

term, Respondent and Undersherif f Staly attended a one - day

ethics training seminar for new law enforcement personnel.

8 . Linda Tannuzzi has been employed by the Flagler County

SheriffÓs Office (FCSO) since 2001. Ms. Tannuzzi was Accounting

Specialist in the FCSO Finance Department during both

RespondentÓs first and second term s . Ms. TannuzziÓs

responsibilities included processing the monthly FCSO credit

card bill for payment.

9 . Ms. TannuzziÓs general practice was to check the listed

charges on the monthly F CSO credit card statement against the

receipts submitted by employee s . In the event no receipt was

submitted, Ms. Tannuzzi would obtain missing receipts from

either the employee or the vendor (e.g., hotel at which employee

stayed).

10 . The practice of the Finance Department was to pay all

credit card charges accompani ed by a signed receipt from the

employee.

11 . During all times pertinent hereto , the SheriffÓs

office maintain ed a policy on credit card purchases. Pursuant

to the policy, the Sheriff Ðwill make only agency - related

purchases and return receipts to Fina nce.Ñ The policy did not

define Ðagency - related purchases.Ñ

12 . Further, the policy advised:

Using an agency credit card during an

ongoing investigation requires the following

be adhered to:

Food only in amount specified by per diem

rate, must includ e overnight stay.

No cash advances.

No car rentals without approval of Sheriff.

Travel voucher to be completed upon return.

Receipts to be attached to travel voucher.

(emphasis added) .

Th is portion of the policy did not clearly apply to use of the

ag ency credit card outside of ongoing investigations.

13 . Respondent was issued an FCSO credit card for use

during both his first and second terms.

14 . Ms. Tannuzzi never questioned any receipt submitted by

Respondent until October 2013 . She assumed all RespondentÓs

receipts were valid. However, no one instructed her to process

RespondentÓs credit card charges differently from other

employees.

15 . Pursuant to section 112.061, at all times relevant

hereto, state employees were allowed the following amo unts for

meals while traveling on business overnight : breakfast, $6;

lunch, $11; and dinner, $19. These amounts are referred to as

the per diem rates.

16 . Respondent was subject to section 112.061 at all times

relevant hereto.

Use of Agency Credit Ca rd

17 . In May 2013 , Respondent attended a National Law

Enforcement conference in Washington , D.C. On May 14, 2013,

Respondent dined at a restaurant called the ÐMadhatterÑ with his

wife , as well as some sheriff Ós deputies and their spouses . The

total bi ll for the meal was $235.76, which Respondent paid for

with the F CSO cred it card. The tab included one alcoholic

beverage.

18 . Upon returning from the conference, Respondent

submitted the signed receipt to Finance for processing.

19 . Other than the me als for F CSO employees , the purchase

did not serve a public purpose.

20 . Each of the meals for F C S O employees exceeded the

per diem rate.

21 . In July 2013 , Respondent attended the National

Association of School Resource Officers conference in Orlando

a nd stayed at the Rosen Shingle Creek h otel. On July 16, 2014,

Respondent dined with his wife at an onsite restaurant.

Respondent charged the total bill of $86.50, which included

alcohol, to his room at the hotel.

22 . With the exception of RespondentÓs meal, the purchase

did not serve any public purpose.

23 . The cost of RespondentÓs meal exceeded the per diem

rate.

24 . Upon his return, Respondent submitted his receipt from

the Rosen S hingle Creek h otel to Finance for processing.

25 . In August 201 3, Respondent attended the Florida

SheriffÓs Association conference in Marco Island, Florida, and

stayed at a Marriott hotel. Respondent made the following room

charges during his stay: On August 3, 2013, meals for himself ,

Undersheriff Staly, and their wives, including alcohol, totaling

$158.50 , and , separately, two alcoholic be verages totaling

$12.46 ; o n August 4, 2013, two meals and alcohol , totaling

$62.21 ; and o n August 7, 2013, two meals totaling $54.58.

26 . Upon his return, Respondent submitted the Marriott

hotel receipt to Finance for processing.

27 . Other tha n RespondentÓs and Undersheriff StalyÓs

meals, the purchases did not serve any public purpose.

28 . The amount for each of RespondentÓs meals exceeded the

per diem rate .

Public Records Request/ FCSO Audit

29 . In October 2013, the independent accounting firm of

Carr, Riggs, and Igram began a routine financial audit of the

FCSO for the fiscal year ending September 30, 2013.

30 . Also in October 2013, the F CSO received a public

records r equest, or requests, seeking information from the F CSO

pertaining to RespondentÓs travel expenditures. In order to

fully respond to the public records request(s), Ms. Tannuzzi had

to obtain a detailed receipt of RespondentÓs Madhatter

restaurant charges f rom May 2013, and detailed receipts of

RespondentÓs restaurant and bar charges , which were reflected as

room charges on the July and August 2013 hotel receipts.

31 . In mid - October 2013, Respondent had a meeting with

Undersheriff Staly, the FCSO Di rector of Finance, and the

FCSO attorney. The purpose of the meeting was to discuss

charges Respondent made with the FCSO credit card.

32 . During that meeting, Respondent was advised to

reimburse FCSO for all non - agency personnel meal charges and his

meal char ges exceeding the approved per diem rate. Th e

Finance Director was instructed to calculate the amounts owed by

Respondent.

33 . On October 31, 2013, Respondent reimbursed FCSO

$344.03 for Ðpersonal mealsÑ charged to the FCSO account.

34 . At hearing, Re spondent maintained that his staff,

mainly his Undersheriff and Finance Director, had the duty to

inform and advise him of his obligations with respect to use of

the FCSO credit card, and that they failed to perform that duty.

Thus, Respondent pled ignora nce as to the appropriate use of the

agency credit card, and argued that when the issues were brought

to his attention, he reimbursed the amounts owed and instituted

new policies to provide clear guidance to all FCSO personnel.

35 . Respondent assumed no responsibility for , and was

neither contrite nor apologetic for , his use of the agency

credit card. Respondent assigned fault to the Director of

Finance for not keeping accurate accounts and Ðkeeping track of

these amounts and [telling] me if I was over t he per diem rate.Ñ

RespondentÓs attitude was best reflected in his own words:

I assumed and trusted that she knew what she

was doing and would come to me when the

money was owed. That was my assumption,

that she was competent to do that. It was

simple a ddition and subtraction that all she

had to do was tell me what it was. I never

refused to pay back any amounts when I was

asked to. It is not my job to be the

director of finance. My job was to be a

sheriff and create a community that is safe,

and I as sumed that she was doing her job.

Unfortunately, to my detriment, she was not.

36 . Respondent admitted that he knew the charges exceeded

the per diem rate for meals. Apparently, he did not intend to

pay for them unless requested.

Use of Agency Vehicl e s

37 . In January 2013, Respondent drove a n FCSO unmarked

Ford Crown Victoria to Dest in, Florida , to attend a

Florida SheriffÓs Association conference. RespondentÓs wif e

accompanied him to the conference . When the conference ended,

Respondent drove the FCSO vehicle to visit his in - laws in

Pensacola, Florida, then on to New Orleans for a personal trip.

38 . On May 3, 2013, Respondent drove an FC SO white

Dodge Charger to Pigeon Forge, Tennessee, for a vacation with

his wife.

39 . Respondent returned to Florida from Pigeon Forge on

May 7, 2013.

40 . In August 2013, Respondent drove an FC SO white

Dodge Charger to Virginia to view colleges with his son. During

the trip, the vehicle suffered minor damage in a parking lot .

41 . Upon RespondentÓs return from Virginia ,

Undersheriff Staly observed Respondent , along with the owner of

a local body shop, in the parking lot inspecting the vehicle .

Undersheriff Staly inquired whether there was anything wrong

with the vehicle.

42 . In response to Undersheriff StalyÓs inquiry,

Respondent disclosed what had transpired. Respondent indicated

that the accident did not occur in Flagler County, which

Respondent knew to be Ða problem.Ñ

43 . Respondent consulted with Undersheriff Staly regarding

the procedure to deal with the minor damage to the vehicle.

Staly recommended Respondent write an internal report.

44 . With respect to damage to FC S O vehicles, the policy in

effect at the time required officers to document damage on an

incident report and report it to the Division Director through

the chain of command.

45 . Respondent did not file a report pursuant to either

the policy or Undersheriff Staly Ós advice .

46 . The policy also required all officers to report

vehicle damage to Fleet Maintenance. Respondent di d report the

damage to Fleet Maintenance .

47 . Respondent released a statement (in response to press

inquiries about damage to the vehicle) explaining that he did

not take his personal vehicle on this trip because it had a

mechanical problem . Respondent testified at final hearing that

his personal vehicle had a mechanical problem.

48 . At all times relevant hereto, FCSO maintained a policy

on use and assignment of agency vehicles, Policy 41.3.

49 . Policy 41.3 stated , ÐAgency vehicles are assigned by

Di vision Directors to individual memberÓs [sic] based on the

criteria of their job performance. Ñ

50 . There is no Division Director with respect to

Respondent.

51 . Under Use of Vehicles, Policy 41.3 states, ÐThe

Sheriff allows personnel who have been assi gned an Agency

vehicle use of that vehicle while off duty with the following

provisions[.]Ñ The policy requires officers to obtain

permission from their supervisor in order to t ake an FCSO

vehicle out of the c ounty.

52 . Respondent has no supervisor.

53 . RespondentÓs position is that Policy 41.3 applied only

to use of marked vehicles .

54 . On October 17, 2013, Respondent reimbursed FCSO $667

for use of the agency vehicl e for personal travel to

Pigeon Forge, Tennessee.

55 . Use of the agency vehicle fo r the trip to Virginia w as

publicly questioned in 2014. A t that time, Respondent was

advised by Undersheriff Staly to reimburse FCSO for the mileage.

However, Respondent asked Staly to follow up with an attorney

for the Florida SheriffÓs Association (whi ch he did), who

provided the same advice.

56 . Respondent reimburse d FCSO for use of the agency

vehicle to Virginia on July 10, 2014, when he issued a check for

$223.50. At final hearing, Respondent maintained that

reimbursement was not necessary and was only made Ðin an

abundance of caution on the advice of counsel.Ñ

Unreported Gift

57 . RespondentÓs stay in Pigeon Forge, Tennessee, in

May 2013 , was courtesy of Undersheriff Staly. Staly owns three

cabins in a private vacation resort in Pigeon Forge. T he resort

has a gated entrance, and just inside the entrance is a

management office where guests check in. The resort includes

amenities such as a playgro und, a miniature golf course, and a

clubhouse.

58 . Undersheri f f Staly pays commercial property in surance,

and pays for utilities and cable television at a commercial

rate. He also pays tangible personal property tax.

59 . Undersheri f f Staly contract s with ÐAccom m odations by

Parkside,Ñ a vacation rental management company , to manage the

cabins . He p ays a management fee to Accommodations by Parkside

for each rental booking . Undersheriff Staly must reserve the

cabins for his personal use through Accom m odations by Parkside.

He does not have direct access to any of the cabins.

60 . Undersheriff Staly reserved one of the cabins, ÐSuite

Mountain View , Ñ for Respondent to use from May 3 through May 7,

2013. The particular cabin usually rents for $430 per night

during the applicable season. Undersheriff Staly offered

Respondent use of the cabin for t he cl eaning fee of $75 .

61 . The décor at Suite Mountain View does not include any

family photographs or other items personal to the Stalys .

62 . Respondent paid Accomodations by Parkside $90.20 for

use of the cabin during the specified dates , which include d the

cleaning fee and sales tax.

63 . Constitutional officers are required to file with the

Florida Commission on Ethics a Form 9 Quarterly Gift Disclosure

for quarters ending in March, June, September, and Dece mber of

each year . Respondent did not repo rt any gift on Form 9 for the

quarter ending June 2013.

64 . Sometime in October 2013, Respondent participated in a

conference call hosted by the Florida SheriffÓs Association

covering a variety of ethics topics.

65 . Following the conference call, Respo ndent remarked to

Undersheri f f Staly, ÐI think I may have a problem with your

cabin,Ñ and stated something to the effect of ÐI think I was

supposed to report it.Ñ

66 . Staly advised Respondent to report it and informed

Respondent the cabin rented for $430 per night.

67 . On a separate date, Respondent again discussed with

Undersheriff Staly reporting use of the cabin as a gift. At

that time, Respondent stated he was going to report it at a

value of $44 per night. Undersheriff Staly advised against that

method of valuing the cabin. RespondentÓs response was

something to the effect of Ð f orty - four dollars sounds better

than the $430, or a $1,200 gift.Ñ

68 . On May 27, 2014, seven months after Respondent

verbally questioned whether he should report use of the cabin as

a gift , Respondent filed a Form 9 Quarterly Gift Disclosure on

which he reported use of the cabin as a gift received from

Undersheriff Staly May 3 through May 5, 2013, at a monetary

value of $132.00, calculated based on a rate of $44 per night .

69 . On December 16 , 2013, Carr, Riggs, and Ingram released

its AuditorÓs Report of FCSO for fiscal year ending October

2013. Of note, the report found that Ðcertain expenditures

charged to the OfficeÓs credit card were not in accordance with

allow able travel costs under Section 112.061 .Ñ

70 . In response to the public attention focused on

RespondentÓs use of the FCSO credit card and agency vehicles,

Respondent instituted new FCSO policies in 2014.

71 . FCSO General Order 152 , which took effect on

January 10, 2014, prohibited non - authorized use of agency credit

cards, and listed authorized and unauthorized charges. The

policy defined Ðfood and restaurant purchasesÑ as unauthorized,

as well as Ðalcohol, unless approved by a Senior Commander or

desi gnee for an operational necessity.Ñ

72 . FCSO General Order 046 , which took effect April 4,

2014, prohibited driving agency vehicles out of state while off -

duty , unless on official business with prior approval.

73 . In Ma y 2014, Respondent attended a Law Enforcement

OfficersÓ Memorial service in Tallahassee, Florida , and stayed

at the Four Points She raton hotel . During his stay, Respondent

charged drinks at the bar and two breakfast buffets to his room.

74 . When Respondent checked out of the hotel o n May 5,

2014 , Respondent presented his personal credit card for the

incidentals. The hotel clerk ÐswipedÑ RespondentÓs credit card,

which was approved for a charge of $50.39, the total of

RespondentÓs bar and restaurant charges to his room. Responden t

r eceived from the hotel clerk a receipt showing charges for his

room and tax only.

75 . Due to a clerical error at the hotel, the FCSO credit

card was billed for RespondentÓs incidentals , as well as his

lodging .

76 . The error was discovered later that s ame month when

the FCSO credit card bill was processed. The $50.39 charge for

incidentals was correctly transferred to RespondentÓs personal

credit card on May 27, 2014.

CONCLUSIONS OF LAW

77 . The Division of Administrative Hearings has

jurisdiction ove r the parties and the subject matter of this

proceeding. See § 120.57(1), Fla. Stat. (20 15 ).

78 . Section 112.322, Florida Statutes, and Florida

Administrative Code Rule 34 - 5.0015 authorize the Commission to

conduct investigations and to make public repo rts on complaints

concerning violations of Part III, c hapter 112, Florida

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

Officers and Employees ( Florida Ethics Code ) .

79 . The burden of proof, absent a statutory directive to

the contrary, is o n the party asserting the affirmative of the

issue in 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 Ad vocate, is asserting the affirmative :

(1) that Respondent violated s ection 112 . 313(6) b y misusing his

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

and (2) that Respondent violated section 112.3148(8) by failing

to report a gift as defined therein .

80 . 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 ).

81 . 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 a nd 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

e stablished.

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) ) .

82 . Sect ion 112.313(6) provides as follows :

MISUSE OF PUBLIC POSITION. - Î No public

officer, employee of an agency, or l ocal

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

hi mself, herself, or others. This section

shall not be construed to conflict with

s. 104.31.

83 . 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

c ompensating 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.

I. Misuse of Position

84 . The Order Finding Probable Cause all eges that there is

probabl e cause to believe the Ð R espondent, as Sheriff of Flagler

County , violated s ection 112.313(6) , Florida Statutes, by

[1] using Flagler County SheriffÓs Office vehicles for out - of -

state personal travel Ñ and Ð[2] by using a credit ca rd issued

and paid by the Flagler County SheriffÓs Office to charge meals

for non - employees and alcohol.Ñ

85 . In order to e stablish a violation of

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

Respondent is or was a public officer or empl oyee; 2) Respondent

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 tak en corruptly.

86 . In this case, it is clear that Respondent , as Sheriff

of Flagler County , is a public officer and was a public officer

at the time of the alleged incidents in this case.

a. Use of FCSO Vehicles

87 . Respondent used public resources (FCSO vehicles)

within his trust on three separate occasions: the trips to

New Orleans, Virginia, and Pigeon Forge.

88 . Respondent used those resources to obtai n a special

benefit for himself -- avoiding either the mileage and wear and

tear on his person al vehicle or the expense of a rental vehicle .

89 . To satisfy the statutory element of corrupt intent,

the advocate must demonstrate with clear and convincing evidence

that Respondent acted Ðwith reasonable 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).

90 . T he evidence did not prove clearly and convincingly

that Respon dentÓs use of the vehicles was undertaken corruptly.

The FCSO policy on use of agency vehicles , with which Respondent

was familiar, did not clearly apply to his use of unmarked

vehicles. Respondent had no supervisor from whom to request

permission for ou t - of - county use of the vehicles , or with whom

to file an incident report on vehicle damage . The policy

require d all officers to report vehicle damage to Fleet

Maintenance , which Respondent did . RespondentÓs interpretation

of the policy as inapplicable to his position is neither

unreasonable nor tortured.

91 . There was no evidence that Respondent used the agency

vehicles differently in his second term than in his first,

differently from the prior Sheriff , or that he departed from any

accepted practice. RespondentÓs comment that he knew the fact

that the vehicle had suffered damage out of the county Ðto be a

problemÑ is insufficient to prove that Respondent had reasonable

notice that use of the vehicle for out - of - state personal travel

was prohibited.

92 . Based on the totality of the evidence, the Advocate

did not prove by clear and convincing evidence that Respondent

acted with corrupt intent with regard to use of the FCSO

vehicles.

b. Use of Agency Credit Card

93 . Respondent did use public resources , in the form of

credit, when he utilized the FCSO credit card to pay the final

bill at hotels in Washington, D.C., Marco Island, and

Orlando, Florida.

94 . Use of the FCSO credit card obviously allowed

Respondent to obtain a specia l benefit to himself and others --

namely, meals exceeding the per diem allowance and meals for

non - agency employees.

95 . By his own admission, Respondent was on notice that

the amounts charged exceeded the per diem rates established by

Florida law. RespondentÓs claim that th e FCSO had no policy

regarding the use of the agency credit card wa s unpersuasive.

Even if it were true that the agency had no such policy,

Respondent knew that obtainin g meals at a cost exceeding

per diem rates was inconsistent with his public duties as

Sheriff. Yet, Respondent had no intent to reimburse the charged

amounts exceed ing the per diem rate, or the amounts paid for

non - agency employees, unless and until requested by the Finance

Department. RespondentÓs cavalier attitude belied his alleged

lac k of notice .

96 . The totality of the evidence proved, clearly and

convincingly, that Respondent acted with reasonable notice that

his conduct was inconsistent with the proper performance of his

public duties. There was no legitimate public purpose for

c harging meals exceeding the per diem rate , and meals for non -

agency employees , at the Madh atter Restaurant in

Washington, D.C. , on May 14, 2013; or allowing the final hotel

bill to be charged to the FCSO credit card at the Rosen Shingle

Creek in Orlando, F lorida , on July 7, 2013, and at the Marriott

in Marco Island on August 3, 2013, when those bill s included

meals exceeding per diem rates and meals for non - agency

employees .

97 . The facts do not support a finding that Respondent

misused his position when he charged meals and alcohol to the

room at the Four Points Sheraton Hotel in Tallahassee on May 5,

2014. The evidence was clear that Respondent intended to settle

the incidental charges at checkout to his personal credit card,

but that due to clerical er ror, they were charged to the FCSO.

II. Failure to Report a Gift

98 . Section 112.3148(8) requires certain public officials,

including Respondent, to report to the Commission on Ethics all

gifts Ðhe or she believes to be in excess of $100 in value.Ñ

The report is to be made on CE Form 9, and filed at the end of

each calendar quarter (March, June, September, and December) for

the previous calendar quarter.

99 . Respondent violated section 112.3148(8) by failing to

timely report use of Undersheriff StalyÓ s cabin as a gift he

believed to be valued at more than $100, and for which he did

not compensate the donor within 90 days. Respondent also

underreported the value of the gift.

100 . Section 112.312(12)(a) defines the use of real

property as a ÐgiftÑ for purposes of ethics in government and

financial disclosure requirements when paid or given to another

for the donee for which equal or greater consideration is not

given within 90 days . See also CEO 96 - 21 ( Fla. CommÓn On Ethics

Sept. 3, 1996)(advising tha t use of Westgate Vacation Villas by

donee at no cost constituted a gift under the Florida E thics

C ode).

101 . Section 112.3148(7) provides that the value of a gift

Ðshall be determined using actual cost to the donor, less taxes

and gratuities[.]Ñ Florid a Administrative Code Rule 34 - 13.500

provides that Ð[w]here the donor engages in the business of

selling the item or service, other than personal services, that

is provided as a gift, the donorÓs Òactual costÓ includes the

total costs associated with provi ding the terms or services[.]Ñ

102 . The record does not establish the exact actual cost

to Undersheri f f Staly of providing ÐSuite Mountain ViewÑ to

Respondent on the dates in question, but the cost was easily

more than $ 132 , the value report ed by Respo ndent.

Undersheri f f Staly incurred costs such as the management fee,

utilities, cable service, insu rance, and taxes.

Undersheri f f Staly, as the donor, also incurred some costs

associated with the inability to rent the cabin to paying

vacationers at the c ustomary rate of $430 per night. The only

cost paid by Respondent was the cleaning fee.

103 . When Respondent did report the gift (at least eight

months late), Respondent reported the value of the gift at $132,

based on a rate of $44 per night as a pri vate residence.

104 . Section 112.3148(7)(e) provides, in pertinent part,

Ð[l]odging in a private residence shall be valued at the per

diem rate provided in s. 112.061(6)(a)1. less the meal allowance

rate provided in s. 112.061(6)(b)Ñ or $44 per night.

105 . The Ethics Code does not define Ðprivate residence.Ñ

Neither Commission on Ethics advisory opinions nor

administrative orders provide authority on the issue. The only

prior construction of this statutory term located by the

undersigned, 3 / was Com mission on Ethics Ó opinion CEO 96 - 21. That

opinion advised that accom m odations at Westgate Vacation Villas

Ðdo not appear to be private residences[.]Ñ However, t he

advisory opinion provides little in the way of details regarding

Westgate Vacation Villas.

106 . Based on the totality of the evidence, the

undersigned concludes that the rental cabin used by Respondent

was not Undersheriff StalyÓs p rivate residence.

Undersheri f f Sta ly had no homestead p rotection on the property,

pa i d commercial insurance a nd for commercial utilities, had no

direct access to the cabin, contracted with a management company

to manage the property, and was required to reserve the cabin

for his personal use through the management company. Further,

upon entering the resort, guests must check in at a management

office.

107 . Furthermore, at the time Respondent chose to report

the value of the gift at $44 per night, rather than $430 , as

advised by Undersheri f f Staly, he did so because Ð forty - four

dollars sounds better than the $430, or a $1,200 gift.Ñ This

admission by Respondent, which was unrefuted at the final

hearing, belies RespondentÓs belief that the cabin was a

personal residence on the date he reported its use .

108 . Section 112.3148(7)(e) provides that Ð[l]odging

provided on consecutive days shall be considered a single gift.Ñ

109 . At the final hearing, Respondent alternatively argued

that his use of Undersheriff StalyÓs cabin was not a reportable

gift , thus he did not violate section 112.3148. By way of

explanation, Re spondent stated that he and his wife did not stay

at the cabin on any two consecutive nights , but that Ðwe left

on e day and came back again[.]Ñ

110 . Under this newly - contrived theory, RespondentÓs stay

at the cabin would not be a reportable gift becaus e each non -

consecutive night would be a separate gift, pursua nt to

section 112.3148(7) , valued at $44 per night, well under the

reporting threshold. RespondentÓs theory is, again , contingent

upon the cabin being a private residence.

111 . RespondentÓs ex planation was simply not credible. He

provid ed no details as to which nights between May 3 and May 7,

2013, Respondent and his wife stayed in the cabin, or where they

stayed when they were not in the cabin. Further, the disclosure

form, which Respondent signed , under oath, indicated Respondent

stayed three consecutive nights Ï May 3 to May 6, 2013.

112 . In the end, Respondent claimed that he filed the

Form 9 on May 27, 2014 , only Ðbecause it became an issueÑ and

Ðin an abundance of caution.Ñ Apparently, not even Respondent

believed the disclosure that he made under oath was accurate.

113 . Based on the totality of the evidence, the Advocate

proved, clearly and convincingly, that Respondent violated

section 112.3148 by failing to timely report a gift he b elieved

to be valued in excess of $100.

III. Penalty

114 . The penalties applicable to a public officer who

violates the Code of Ethics include impeachment, removal from

office, suspension from office, public censure and reprimand,

forfeiture of no mor e than one - third of his or her salary for no

more than 12 months, a civil penalty not to exceed $10,000, and

restitution of any pecuniary benefit received because of the

violation committed. See § 112.317(1)(a), Fla. Stat.

115 . In this case, the Advoca te seeks a civil penalty of

$8,000 for each violation of section 112.313(6), Misuse of

Office, and a $3,000 penalty for a violation of

section 112.3148(8), along with public censure and reprimand.

116 . In light of the authorities cited in the AdvocateÓs

Proposed Recommended Order, and other authorities, the

undersigned recommends a civil penalty of $5,000 for the single

violation of misuse of office, along with public censure and

reprimand. In light of the specific facts of this case, the

undersigned rec ommends Respondent pay a civil penalty of $1,200

for failing to disclose a reportable gift.

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 Respondent , J ames L. Manfr e , violate d

s ection 112.313(6), Florida Statutes , in his use of the agency

credit card; and section 112.3148, Florida Statutes, by failing

to report a gift; and imposing a total civil penalty of $6,200,

and subjecting Respondent to public cens ure and reprimand .

DONE AND ENTERED this 16th day of February , 2016 , in

Tallahassee, Leon County, Florida.

S

SUZANNE VAN WYK

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Ap alachee 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 16th day of February , 2016 .

END NOTE S

1 / Except as otherwise provided her ein, all references to the

Florida Statutes are to the 2013 version. While the 2012

version was in effect on some of the dates on which RespondentÓs

conduct was at issue , there was no substantive change to the

relevant sections of the Florida Ethics Code during the 2013

legislative session.

2 / The testimony of most of the witnesses was offered jointly by

the parties.

3 / Neither party cited any relevant authority construing

Ðpersonal residenceÑ under the Florida Ethics Code in their

Proposed Recommended Order s .

COPIES FURNISHED:

Millie Wells Fulford, Agency Clerk

Florida Commission on Ethics

Post Office Drawer 15709

Tallahassee, Florida 32317 - 5709

(eServed)

Elizabeth A. Miller, Esquire

Office of the Attorney General

Plaza Level 01, The Capitol

Talla hassee, Florida 32399

(eServed)

Linda Bond Edwards, Esquire

Rumberger, Kirk & Caldwell, P.A.

215 South Monroe Street

Tallahassee, Florida 32301

(eServed)

John David Marsey, Esquire

Rumberger Kirk and Caldwell

Suite 702

215 South Monroe Street

Tallahass ee, Florida 32301

(eServed)

V i rlindia Doss, Executive Director

Florida Commission on Ethics

Post Office Drawer 15709

Tallahassee, Florida 32317 - 5709

(eServed)

C. Christopher Anderson, III, General Counsel

Florida Commission on Ethics

Post Office Drawe r 15709

Tallahassee, Florida 32317 - 5709

(eServed)

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 f iled with the agency that

will issue the Final Order in this case.