16-003637EC In Re: Stephan Carter vs. * Status: Closed Recommended Order on Tuesday, January 3, 2017.

Summary: Advocate proved by clear and convincing evidence that Respondent misused his public position to obtain a special benefit for himself in the form of a severance payment.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

IN RE: STEPHAN CARTER, Case No. 16 - 3637EC

Respondent.

_______________________________/

RECOMMENDED ORDER

The final hearing in this matter was conducted before

J. Bruce Culpepper, Administr ative Law Judge of the Division of

Administrative Hearings, pursuant to sections 120.569 and

120.57(1), Florida Statutes (2016), on September 20 and 21, 2016,

in Orlando, Florida.

APPEARANCES

For Advocate : Elizabeth A. Miller, Esquire

O ffice of the Attorney General

Plaza Level 01, The Capitol

Tallahassee, Florida 32399

For Respondent: Stephan Carter , pro se

2153 Chinook Trail

Maitland, Florida 32751

STATEMENT OF THE ISSUE S

The issues in this matter are whether Respondent violated

section 112.313(6), Florida Statutes (2013) , 1/ by obtaining funds

from Orange County in the form of a severance payment while

remaining employed as General Counsel for the Orange County Cler k

of Courts ; and, if so, the appropriate penalty.

PRELIMINARY STATEMENT

On October 28, 2015, the Florida Commission on Ethics

(the ÐCommissionÑ) issued an Order Finding Probable Cause to

believe that Respondent, Stephan Carter, while serving as

General C ounsel for the Orange County Clerk of Courts, violated

section 112.313(6). The Commission found that Respondent used

his position to obtain substantial funds in the form of a

severance package while still employed as General Counsel for

the Orange County Cle rk of Courts.

The Commission forwarded the case to the Division of

Administrative Hear ings (ÐDOAHÑ) on June 28, 2016.

The final hearing was held on September 20 and 21, 2016.

At the final hearing, the Advocate for the Commission (the

ÐAdvocateÑ) offere d the testimony of Daniel J. Gerber, Thomas

Gonzalez, Joann Gammichia, Tracy Gasinski, Mike Murphy, and

Cathleen Balboa. A dvocate Ós Exhibits 1 through 22 were admitted

into evidence. Respondent testified on his own behalf and

offered the testimony of Gar y Wilson. Respondent Ós Exhibit 1

was admitted into evidence.

A court reporter recorded the final hearing. A three - volume

Transcript of the proceeding was filed on November 16, 2016. At

the close of the hearing, the parties were advised of a ten - day

time frame following DOAHÓs receipt of the Transcript to file post -

hearing submittals. The Advocate filed a Proposed Recommended

Order which was duly considered in preparing this Recommended

Order.

FINDING S OF FACT

1. Respondent, Stephan Carter, served as Gen eral Counsel

for the Orange County Clerk of Courts (the ÐClerkÓs OfficeÑ) from

June 2003 through April 1, 2014. Respondent was a public

employee at all times material to this action.

2. Respondent was personally hired by Lydia Gardner, the

Orange County Clerk of Courts. In January 2005, Respondent and

Ms. Gardner executed an employment contract (the ÐEmployment

AgreementÑ). The Employment Agreement was signed by Respondent

and Ms. Gardner, in her capacity as the Clerk of Courts, on

January 10, 2005, and J anuary 13, 2005, respectively.

3. The Employment Agreement, paragraph 6, entitled

ÐTermination of Employment,Ñ established that the Clerk would pay

Respondent a fee should the Clerk terminate the Employment

Agreement prior to its expiration date (the ÐS everance PaymentÑ).

Paragraph 6 specifically provided:

The Clerk may declare this agreement

terminated at any time. . . . The Clerk

shall promptly pay to the General Counsel a

sum equal to i) the salary and deferred

compensation that is accrued but unpai d as of

the date of the termination, plus ii) an

amount equal to the pro rata portion of his

salary for all accrued but unused leave time,

plus, iii) an amount equal to the salary and

deferred compensation that the General

Counsel would have received durin g the

180 days immediately following the date such

termination takes effect, as if this

agreement had not been terminated.

4. At the final hearing, Respondent explained that when he

accepted the position of General Counsel (then titled ÐLegal

CounselÑ) with the ClerkÓs Office in June 2003, he informed

Ms. Gardner that he would only agree to work for the ClerkÓs

Office if he could be protected from losing his position.

Therefore, Respondent sought and obtained the Severance Payment

provision should he b e terminated for any reason other tha n his

voluntary resignation.

5. The Employment Agreement provided that RespondentÓs term

of employment continued until January 6, 2009. On January 7,

2009, Respondent and Ms. Gardner entered a signed agreement

wherein the Employment Agreemen t was Ðextended indefinitely.Ñ

6. On February 5, 2013, Respondent and Ms. Gardner signed a

second amendment to the Employment Agreement. 2 / This

Ðclarification of termsÑ stated:

[A ]s to the definition of termination in

paragraph 6, for the purposes of the contract,

termination by the Clerk includes the ending

of the employment relationship for any reason

other than General Co unselÓs voluntary

resignation.

The amendment also provided that an $11,000 annual payment into

RespondentÓs deferred compensation plan contained in the original

Employment Agreement be considered compensation under Florida

A dministrative C ode Rule 60S - 6.001(15)(relating to pens ions) and

not a fringe benefit.

7. In February 2013, Ms. Gardner became gravely ill.

Ms. GardnerÓs illness caused her to be a bsent from the ClerkÓs

Office.

8. In Ms. GardnerÓs absence, Colleen Reilly, the Chief

Administrative Officer for the ClerkÓs Office, assumed

Ms. GardnerÓs responsibilities. Ms. Reilly was hired in 2009.

At that time, Respondent prepared an employment contract for

Ms. Reilly modelled on his own Employment Agreement.

9. In April 2013, Ms. Reilly approached Respondent to talk

about their future employment with the ClerkÓs Office.

Ms. GardnerÓs health was deteri orating. Respondent and

Ms. Reilly discussed the impact of Ms. GardnerÓs death on their

positions. Ms. Reilly was also concerned whether the new Clerk

of Courts would hon or their Employment Agreements.

10. Respondent and Ms. ReillyÓs conversation led t o a

discussion regarding how they could protect the Severance

Payments under their respective Employment Agreements.

Respondent and Ms. Reilly considered several possibilities. One

position was that their Employment Agreements would remain in

effect upon Ms. Gardner's death, and they could ask the new Clerk

of Courts to honor the payout terms. Respondent, however,

determined that the Employment Agreements were not clear on

whether he and Ms. Reilly were entitled to the Severance Payments

following a chan ge of administration. Therefore, they became

concerned whether the new Clerk of Courts would be legally bound

to honor the Severance Payments should he or she decide n ot to

retain their services.

11. Respondent, without seeking legal guidance or

consulti ng with outside counsel for the ClerkÓs Office, concluded

that the Employment Agreements would terminate upon Ms. GardnerÓs

death. At the final hearing, Respondent explained that he

considered his employment to be tied specifically to Ms. Gardner

and not the Clerk's Office. Therefore, Respondent reasoned that

because both he and Ms. Reilly were hired by and worked directly

for Ms. Gardner, her death would terminate their contracts. This

termination, of course, would also entitle Respondent (and

Ms. Reil ly) to the Severance Payment because his employment would

have ended for a reason other than his voluntary resignation.

12. Respondent and Ms. Reilly also discussed their plans

once their Employment Agreements were terminated. Respondent

informed Ms. Rei lly that he believed that after the Employment

Agreement was terminated, they could continue to work for the

ClerkÓs Office as Ðat - willÑ employees without employment

contracts. Respondent encouraged Ms. Reilly to take her

Severance Payment then stay in he r position with the ClerkÓs

Office. He intended to do the same.

13. Late in April 2013, Ms. Reilly informed Respondent that

she was planning to visit Ms. Gardner, who was on convalescent

leave at her home, to ask her to formally terminate the

Employment Agreements and make them at - will employees of the

ClerkÓs Office. Respondent encouraged Ms. ReillyÓs endeavor.

Respondent then drafted two versions of a memorandum Ms. Gardner

could sign to effectuate the termination of their contracts.

Ms. Gardner, ho wever, did not agree to terminate the Employment

Agreements or sign the paperwork Respondent had prepared.

Consequently, the Employment Agreements remained in effect.

14. When Ms. Reilly was not able to obtain Ms. GardnerÓs

consent to terminate the Emplo yment Agreements, Respondent began

to consider Ms. ReillyÓs authority to terminate his Employment

Agreement. Respondent determined that Ms. Reilly could terminate

his contract under section 28.09 , Florida Statutes , and they

could still receive the Severan ce Payments. Section 28.09

des cribes the appointment of a c lerk ad interim in the case

of a vacancy occurring in the office of a clerk by death.

Section 28.09 states that the clerk ad interim Ðshall assume all

the responsibilities [and] perform all the dutiesÑ of the clerk.

Therefore, because Ms. Reilly would assume all the powers of

Ms. Gardner, she would be authorized the terminat e his Employment

Agreement.

15. Ms. Gardn er passed away on May 8, 2013.

16. On May 9, 2013, Ms. Reilly was officially a ppointed as

Clerk Ad Inte rim for the ClerkÓs Office.

17. Also on May 9, 2013, Respondent and Ms. Reilly

immediately took steps to obtain their respective Severance

Payments. To effectuate their plan, Ms. Reilly promptly

terminated both their Employment A greements using her newfound

authority as the interim Clerk. Respondent hoped that this step

would remove any questions of their entitlement to the Severance

Payment that might be rais ed by the new Clerk of Courts.

18. Respondent then went directly to th e ClerkÓs Payroll

office. There, he approached Tracy Gasinski, the payroll

administrator for the ClerkÓs Office. Respondent informed her

that Ms. Reilly had approved him to receive a payout. Respondent

declared that his payout was authorized because his Employment

Agreement was terminated. Respondent also instructed

Ms. Gasinski to pay Ms. ReillyÓs payout under her Employment

Agreement. Respondent stressed that he wanted both payouts

processed immediately. Finally, Respondent advised Ms. Gasinski

tha t nobody need ed to know about the payout.

19. Ms. Gasinski felt pressured by Respondent. However,

based on his representation that Ms. Reilly had approved the

payout, she immediately processed a final paycheck for Respondent

(and Ms. Reilly) , which inclu ded the Severance Payment provided

in his Employment Agreement. Ms. Gasinski calculated a payout

for Respondent in the gross amount of $110,290.61. This figure

included a Severance Payment of $76,844.00. In addition, per his

request, Respondent was also paid $27,822.10 for all his unused

vacation leave (405.57 hours times a rate of $68.60) , as well as

$5,624.51 for his unused sick leave (327.96 hours times a rate of

$17.15). Ms. Gasinski paid 25 percent of RespondentÓs sick leave

per ClerkÓs Office poli cy.

20. The next day, on May 10, 2013, Ms. Gasinski issued

Respondent a check in the amount of $58,400.00 which was

deposited directly into Respondent's personal bank account.

Ms. Gasinski also deposited a final paycheck into Ms. Reilly's

bank account .

21. On or about May 20, 2013, however, Respondent returned

to see Ms. Gasinski. He was not happy with his payout.

Respondent told Ms. Gasinski that the amount she deposited was

incorrect, and he was due more money. Respondent demanded

several adjustmen ts which would maximize his Severance Payment.

a. First, referencing the February 5, 2013, amendment to

his Employment Agreement, Respondent wanted the $11,000 he

received as deferred compensation to be incorporated into his

base salary thereby increas ing his rate of pay.

b. Second, Ms. Gasinski, in calculating RespondentÓs

Severance Payment, computed the final payout based on six monthÓs

salary in accordance with the standard practice of the Clerk's

Office. Respondent, however, insisted that his Severan ce Payment

be calculated based on Ð180 daysÑ as specifically stated in his

Employment Agreement at paragraph 6. This mathematical

adjustment increased Respondent's payout by including payment for

all Saturdays and Sundays. 3/

c. Third, Respondent demanded that he receive 100 percent

payout for his remainin g sick leave instead of just 25 percent as

was the ClerkÓs Office policy.

d. Fourth, Respondent requested that 56 hours (7 days) be

reserved in his vacation leave account and not paid out. 4/

22. Followi ng their meeting, Ms. Gasinski voided the

initial payout check. However, she was not comfortable with

RespondentÓs request based on her understanding of employment

contracts. Respondent's and Ms. Reilly's transactions were out

of the ordinary course of b usiness for the Clerk's Office. In

her experience, final paychecks to ClerkÓs Office employees were

always accompanied by paperwork from the ClerkÓs OfficeÓs Talent

Management division. This paperwork came in the form of an

Employee Change Notice (ÐECNÑ) . However, Respondent did not

produce, nor had Ms. Gasinski received, an ECN supporting

RespondentÓs payout.

23. In ClerkÓs Office accounting practices, Talent

Management and the Payroll office act as a check and balance for

each other. Typically, Talen t Management initiates the

paperwork, and then Payroll issues the checks. The normal

process for a payout when a Clerk's Office employee leaves

employment is for Talent Management to notify Ms. Gasinski who

then processes the final payout. Respondent did not have the

authority to direct Ms. Gasinski to issue the checks. Similarly,

Ms. Gasinski did not have the authority to write checks to either

Respondent or Ms. Reilly. Furthermore, a final payout upon

termination is always via a paper check. Direct d eposit to a

personal bank account is never an option. The terminated

employee picks up the paper check from Talent Management who

verifies that the employee's garage pass and badge have been

returned.

24. Because of her discomfort with issuing Respondent Ós

payout check, Ms. Gasinski sought advice from her supervisor,

Mike Murphy, the Chief Financial Officer for the ClerkÓs Office.

Mr. Murphy suggested that Ms. Gasinsk i contact Talent Management.

25. On May 21, 2013, Ms. Gasinski spoke to Joann Gammichia ,

the Director of Talent Management, about RespondentÓs request for

a payout. When Ms. Gammichia learned of the situation, she had

immediate concerns. First, Ms. Gammichia wondered why Payroll

was issuing a check without any documentation from Talent

Man agement such as an ECN. Ms. Gammichia testified that each

employment activity requires completion of an ECN which acts as a

recordkeeping system for the Clerk's Office. Because Respondent

approached Ms. Gasinski in the Payroll office directly, no ECN or

other written record was generated explaining why the ClerkÓs

Office was issuing the payout to Respondent. Ms. Gammichia

explained that the policy of the ClerkÓs Office is that payouts,

severance checks, termination, or any kind of position change

should only occur with an ECN in order to maintain and track the

complete history of an employee's tenur e with the Clerk's office.

26. Ms. Gammichia also wondered why Respondent went

directly to Ms. Gasinski with his demands. The normal starting

point for emplo yee changes begins with Talent Management, and the

end of the line is financial services and Payroll. The fact that

Respondent was attempting to verbally change his employment

status in the Payroll office was Ðhighly irregular.Ñ

Ms. Gammichia was also p uzzled why the ClerkÓs Office was issuing

a severance payout on an employment contract when the employment

was not ending.

27. Consequently, Ms. Gammichia told Ms. Gasinski not to

issue the adjusted payout check. Ms. Gasinski then notified

Respondent via e - mail dated May 21, 2013, that she could not

process the final payout until she received the proper

documentation from Ms. G ammichia in Talent Management.

28. Shortly thereafter, Respondent visited Ms. GammichiaÓs

office to inquire why she was involv ed in his payout matter.

According to Ms. Gammichia, Respondent became Ðpretty

aggressive.Ñ Respondent told Ms. Gammichia that she had no

authority or business being involved. It was a personal matter.

Respondent warned Ms. Gammichia that she was direc tly violating

an order from Ms. Reilly to make the Severance Payments.

Ms. Gammichia informed Respondent that not only was she involved,

but she was not authorizing the payout check to go through.

Ms. Gammichia further advised Respondent not to contact

Ms. Gasinski regarding the payout.

29. Later that day, Ms. Gammichia contacted her supervisor,

Cathi Balboa, the Director of Administrative Services for the

ClerkÓs Office, to discuss RespondentÓs payout request.

Ms. Gammichia relayed to Ms. Balboa th at Ms. Gasinski was upset

because she was being asked to prepare a large payout based only

on verbal instructions without any supporting paperwork. At the

final hearing, Ms. Balboa recalled that RespondentÓs urgent

request for a payout was highly irregula r. Ms. Balboa relayed

that the ClerkÓs Office should not issue a final payout unless an

employee was truly terminat ed from his or her position.

30. Based on their concerns, Ms. Gammichia and Ms. Balboa

called Ms. Reilly, who was sick at home, to confirm whether

Ms. Reilly was aware of the payouts that Respondent said she had

authorized. Ms. Gammichia also wanted to report the fact that

Ms. Gasinski felt that she was being coerced and harassed by

Respondent.

31. Ms. Gammichia described Ms. ReillyÓs reac tion as

hostile and negative. Ms. Reilly did not seem happy that others

were involved. Ms. Reilly asked Ms. Balboa, ÐHow did you get

involved in this?"

32. The next morning, on May 22, 2013, Ms. Reilly returned

to the ClerkÓs Office and called a meeting with Mr. Murphy,

Ms. Balboa, and Respondent. Ms. Reilly opened the meeting by

asking Mr. Murphy and Ms. Balboa "what do you think your role is

in this organization," and "where do your loyalties lay?"

Ms. Reilly then announced that Ðit was a private m atter, it was

their personal business, [and] to stay out of it." Ms. Balboa

testified at the final hearing that Ms. Reilly intimidated her in

their meeting. Mr. Murphy conveyed that he understood that they

were not to get involved i n the severance payout matter.

33. After the meeting, Ms. Gasinski was told to proceed

with the payouts for Respondent and Ms. Reilly.

34. On May 23, 2013, Ms. Gasinski processed a second

severance payout check for Respondent and Ms. Reilly.

Ms. Gasinski prepared for Respon dent a revised final paycheck in

the total amount of $156,443.11. This amount included a

Severance Payment of $106,387.20. Respondent was also paid

$25,826.23 for his vacation leave (349.57 hours times a rate of

$73.88) , as well as $24,229.68 for all his unused sick leave

(327.96 hours times a rate of $73.88). A check in the net amount

of $99,125.45 was deposited in RespondentÓs personal bank

account.

35. On May 23, 2013, Respondent repaid the initial payout

of $58,400.00 to the ClerkÓs Office by person al check.

36. After Ms. Reilly terminated his Employment Agreement on

May 9, 2013, Respondent never left his position with the ClerkÓs

Office. Respondent considered himself an at - will employee and

continued to report to work as General Counsel. There wa s never

any break in his employment. At no time did Respondent (or the

ClerkÓs Office) initiate or complete any paperwork to rehire

Respondent after either Ms. GardnerÓs death or Ms. Reilly

terminated his Employment Agreement. No documentation was

prepar ed transitioning Respondent from a contract employee to an

at - will employee. Respondent continued to perform the same

duties under the same terms, conditions, and compensation

contained in the Employment Agreement as if he never left

office. 5/

37. At the final hearing, Respondent testified why his

interpretation of his Employment Agreement justified his actions

and motives. Respondent first remarked that his Employment

Agreement was not typical for a ClerkÓs Office employee. It

contained certain provisi ons which were not to be Ðexposed

generally , Ñ such as the termination clause and the contact

termination fee. Therefore, he desired to keep his employment

terms quiet. Respondent further disclosed that he did not

initiate an ECN because his Severance Pay ment was not a human

resources issue, it was a matter of contract.

38. Respondent also explained that at the end of 2008, when

his Employment Agreement was nearing its initial termination

date, Respondent became concerned with his future at the ClerkÓs

Of fice. He began to wonder what would happen if Ms. Gardner left

her position as Clerk. Therefore, he prepared, then executed,

the 2009 amendment to the Employment Agreement extending it

Ðindefinitely.Ñ In 2013, Respondent prepared, then executed, the

sec ond amendment clar ifying the term Ðtermination.Ñ

39. Regarding collecting his Severance Payment without

leaving his position with the ClerkÓs Office, Respondent

contended that just because his Employment Agreement was

terminated (thus, entitling him to th e Severance Payment) did not

mean he had to leave employment with the ClerkÓs Office.

Respondent characterized the payment as a Ðcontract termination

fee.Ñ Therefore, he asserted that the Clerk could terminate his

Employment Agreement without actually te rminating him from his

position as General Counsel. Consequently, nothing prevented him

from becoming an at - will employee. Accordingly, when Ms. Reilly

terminated the Employment Agreements on May 9, 2013, by

exercising her prerogative as the interim Cler k, she also decided

that both Respondent and she would stay on with the ClerkÓs

Office as at - will employees until the new Clerk of Courts

determined what to do with them.

40. In February 2014, the new Clerk of Courts, Eddie

Fernandez, determined to initia te an investigation to review the

propriety of the 2013 Severance Payment s to Respondent and

Ms. Reilly.

41. On March 28, 2014, Respondent was placed on

administrative leave with pay.

42. On April 1, 2014, after the investigation recommended

that Respon dentÓs employment be terminate d , Respondent resigned

from his position with the ClerkÓs Office. As a condition of his

resignation, Respondent was not eligible for rehire by the

ClerkÓs Office.

43. Respondent reimbursed the full amount of the money that

h e received as the Severance Pa yment from the ClerkÓs Office.

44. Commenting on the circumstances of his resignation and

restitution, at the final hearing, Respondent urged that he did

not act dishonestly, but, may be he exercised bad judgment.

Respondent also proclaimed that he received his Severance Payment

because the interim Clerk ordered it, not by reason of his

actions or conduct. Therefore, he personally never vi olated any

duty of his office.

45. Based on the evidence and testimony presented during

the final hearing, the competent substantial evidence in the

record establishes, by clear and convincing evidence, that

Respondent acted corruptly, with a wrongful intent, in seeking

and obtaining the Severance Payment when he never intended to

leave his public employment with the ClerkÓs Office.

Accordingly, the Advocate proved that Respondent violated

section 112.313(6).

CONCLUSIONS OF LAW

46. The Division of Administrative Hearings has

jurisdiction over the parties and the subject matter of this

proc eeding. See § 120.57(1), Fla. Stat .

47. Section 112.322, Florida Statutes (2016) , and Florida

Administrative Code Rule 34 - 5.0015 authorize the Commission to

conduct investigations and make public reports on complaints

concerning violations of Part III, c hapter 112, entitled Code of

Ethics for Public Officers and Employees (the ÐFlorida Code of

EthicsÑ).

48. The Commission has jurisdiction over this matter to

determine whether any violations of the Florida Code of Ethics

have occurred. § 112.324(3), Fla. Stat.

49. Respondent, as General Counsel for the ClerkÓs Office,

was a public employee subject to the requirements of chapter 112.

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

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

is sue in the proceedings. DepÓt of Transp. v. J.W.C. Co. , 396

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

So. 2d 349 (Fla. 1st DCA 1977); see also DepÓt of Banking & Fin.,

Div. of Sec. & Investor Prot. v . Osborne Stern & Co. , 670 So. 2d

932 , 935 (Fla. 1996)(ÐThe general rule is that a party asserting

the affirmative of an issue has the burden of presenting evidence

as to that issue.Ñ) . In this proceeding, the Commission, through

its Advocate, has the burden to establish whether Respondent

v iolated section 112.313(6).

51. Commission proceedings which seek recommended penalties

against a public officer or employee require proof of the alleged

violation by clear and convincing evidence. See Latham v. Fla.

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

52. Clear and convincing evidence is a heightened standard

that requires more proof than a mere preponderance of the

evidence. Clear and convincing evidence requires that the

evidence Ðmust 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 at issue. The evidence must be of such

weight that it produces in the mind of the trier of fact a fi rm

belief or conviction, without hesitancy, as to the truth of the

allegations sought to be established.Ñ In re Davey , 645 So. 2d

398, 404 (Fla. 1994); Slomowitz v. Walker , 429 So. 2d 797, 800

(Fla. 4th DCA 1983).

53. Section 112.313(6) 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 du ties,

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.

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

as:

ÐCorruptlyÑ means done with a wrong ful 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.

55. To satisfy the statutory requirement of Ðwrongful

intent,Ñ the Advocate must prove 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 [Florida Code of Ethics].Ñ Blackburn v. State,

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

56. Section 112.311 expresses the Legislative intent behind

the Florida Code of Ethics and states, in pertinent part:

(1) It is essential to the proper con duct

and operation of government that . . . public

office not be used for private gain other

than th e remuneration provided by law.

* * *

(4) It is the intent of this act to

implement these objectives of protecting the

integrity of government . . . .

* * *

(5) It is hereby declared to be the policy

of the state that no officer or employee of a

state agency or of a county, city, or other

political subdivision of the state . . .

shall . . . engage in any business

transaction or profession al activity; or

incur any obligation of any nature which is

in substantial conflict with the proper

discharge of his or her duties in the public

interest. To implement this policy and

strengthen the faith and confidence of the

people of the state in their government,

there is enacted a code of ethics setting

forth standards of conduct required of state,

county, and city officers and employees, and

of officers and employees of other political

subdivisions of the state, in the performance

of their official d uties. It is the intent

of the Legislature that this code shall serve

not only as a guide for the official conduct

of public servants in this state, but also as

a basis for discipline of those who violate

the provisions of this part.

(6) It is declared to be the policy of the

state that public officers and employees,

state and local, are agents of the people and

hold their positions for the benefit of the

public. . . . Such officers and employees

are bound to observe, in their official acts,

the highest standards of ethics consistent

with this code and the advisory opinions

rendered with respect hereto regardless of

personal considerations, recognizing that

promoting the public interest and maintaining

the respect of the people in their government

must b e of foremost concern . ( E mphasis

added) .

57. As stated in Blackburn :

It is quite apparent that the primary concern

of these statements of legislative intent and

purpose lies in avoiding conflicts of

interest by public officials in matters under

their c harge, and eliminating private gain,

directly or indirectly, by financial

compensation or otherwise, in carrying out

their official duties on behalf of the

government they are sworn to serve.

Section 112.311(5) specifically refers to the

code of ethics e nacted in this part to

implement the policy and intent recited in

the preceding subparagraphs (1) through (4),

and the standards of conduct set forth in

section 112.313 must be construed in the

context of these provisions.

Id. at 435.

58 . Stated succinc tly, to establish a violation of

section 112.313(6), the Advocate must prove by clear and

convincing evidence that Respondent, as a public employee,

1) used, or attempted to use, his official position; 2) to secure

a special benefit for himself or anothe r; and 3) acted ÐcorruptlyÑ

in doing so, that is, Ðwith wrongful intent and for the purpose of

benefiting himself or another person from some act or omission,

which is inconsistent with the proper performance of his public

duties.Ñ Siplin v. Comm'n on Eth ics , 59 So. 3d 150, 151 (Fla. 5th

DCA 2011), see also Bennett v. Comm'n on Ethics , 871 So. 2 d 924,

926 (Fla. 5th DCA 2004).

5 9 . The Advocate alleges that Respondent violated the

Florida Code of Ethics, specifically section 112.313(6), by

seeking and obtai ning a severance payout from the ClerkÓs Office

while never intending to leave employment as General Counsel.

60 . Based on the competent substantial evidence in the

record, the clear and convincing evidence establishes that

Respondent corruptly used his o fficial position to obtain a

special benefit for himself (and for another). The Advocate

persuasively demonstrates that Respondent participated in (if not

instigated) a scheme whereby the ClerkÓs Office would pay him his

Severance Payment under his Employ ment Agreement, but he would

continue to be employed as General Counsel for the ClerkÓs Office

under the exact same compensation, terms and conditions contained

in the Employment Agreement. RespondentÓs actions to collect a

Ðdouble salaryÑ were inconsiste nt with the proper performance of

his public duties. Accordingly , RespondentÓs acceptance of his

Severance Payment without leaving public service was unjustified

and violated the Florida Code of Ethics.

61 . The AdvocateÓs primary argument is that because

Respondent never intended to leave his position with the ClerkÓs

Office once his Employment Agreement was terminated (either by

Ms. GardnerÓs death or Ms. ReillyÓs decree), he was not entitled

to the Severance Payment. The AdvocateÓs argument has merit.

The terms and conditions of the Employment Agreement indicate

that RespondentÓs entitlement to the Severance Payment was

predicated on Respondent's term of employment ending. The

heading of the Employment Agreement, paragraph 6, itself is

entitled ÐTerm ination of Employment.Ñ The AdvocateÓs argument is

also supported by the second amendment to the Employment Agreement

that Ms. Gardner agreed to in February 2013, which stated:

As to the definition of termination in

paragraph 6, for purposes of the contra ct,

termination by the Clerk includes the ending

of the employment relationship for any reason

other than General Couns el's voluntary

resignation." (E mphasis added) .

62 . Furthermore, the Employment Agreement established that

Respondent's Severance Payme nt was to equal the salary, deferred

compensation, and unused leave time that Respondent Ð would have

received during the 180 days immediately following the date such

termination takes effect, as if this agreement had not been

terminated." ( E mphasis added) . Respondent recognized that the

purpose of the Employment AgreementÓs termination clause was to

protect him from unemployment. In an e - mail to Ms. Reilly dated

May 2, 2013, Respondent opined that:

The purpose of the clause was to make us to

hold [sic] i n the event we were terminated.

That is, what we would have received over the

following six months had we still been under

The [sic] contract.

The Employment Agreement did not express that the ClerkÓs Office

(or Ms. Gardner) agreed to compensate Responde nt with both the

Severance Payment and his regular salary. Yet, Respondent did

receive the benefit of both payments for the 180 days following

the termination of his Employment Agreement. Consequently,

RespondentÓs receipt of his Severance Payment when h e was still to

be paid his salary was not warranted because he suffered no loss

of compensation as envisioned by the terms of the Employment

Agreement.

63 . Further, the totality of the evidence proves, clearly

and convincingly, that Respondent acted with reasonable notice

that his conduct was inconsistent with the proper performance of

his duties as a public employee and contrary to the Florida Code

of Ethics. RespondentÓs actions demonstrate that at the time he

sought to have his Employment Agreement ter minated , he had no

intention of leaving his position with the ClerkÓs Office. Yet,

he knowingly pursued a plan to obtain his Severance Payment as if

he were, in fact, term inated from public employment.

64 . The manner in which Respondent orchestrated his

termination so that he could collect his Severance Payment shows

that he was aware his receipt of the payout was questionable.

First, Respondent attempted to bypass the normal financial

accounting channels to obtain his Severance Payment. Respondent

soug ht to avoid creating a record of his transaction. He did not

initiate or prepare any documentation to effectuate his

termination (or transition to an at - will employee). Instead, he

approached the Payroll clerk directly to obtain his check rather

than goi ng through Talent Management. Respondent also explicitly

cautioned Ms. Gasinski to tell no one of his payout. Later, when

Ms. Gammichia questioned the payout, Respondent ÐaggressivelyÑ

challenged why she had become involved in the matter and

admonished h er not to violate Ms. ReillyÓs order to issue the

Severance Payments.

6 5 . Furthermore, RespondentÓs communications in the months

prior to Ms. GardnerÓs death indicate that he knew his

interpretation of the Severance Payment provision would likely be

dispu ted. In February 2013, Respondent drafted a ÐclarificationÑ

of his Employment Agreement explaining that the term

ÐterminationÑ included Ðthe ending of the employment

relationship.Ñ On May 2 , 2013, as if the February 2013 amendment

was not explicit enough to accomplish his objective, Respondent

drafted another memorandum for Ms. Gardner to sign to officially

terminate his employment contract and make him an at - will

employee. Ms. Gardner re fused to sign this memorandum.

6 6 . Finally, at the final hearing R espondent conceded that

his interpretation of the Severance Payment was Ðdebatable.Ñ

Respondent acknowledged that he may have exercised Ðbad

judgement.Ñ Even if he did believe that his legal analysis was

sound, he was well aware that other ClerkÓs Office employees,

e.g. , Ms. Gasinski, Ms. Gammichia, Mr. Murphy, and Ms. Balboa,

had serious questions about the legitimacy of the Severance

Payment. See e.g. , In Re Renee Lee , Case No. 11 - 6063EC ,

RO at 20 - 21 (Fla. DOAH July 11 , 2012 ) (Ðit was incumbent on [th e

public employee], in the proper performance of her professional

duties, to make inquiry so as to be clear about the facts on

which she offered a legal opinion.") .

67 . In seeking to obtain his Severance Payment , Respondent

essentially sought to have his cake and eat it too. Respondent

purposefully pushed to have his Ðemployment relationshipÑ

terminated. He then continued working for the ClerkÓs Office in

the same position under the same compensation, terms, and

conditions as set forth in the Employment Agreement. Respondent

cannot have it both ways. The purpose of the Severance Payment

was not to enrich Respondent with $156,443.11 of public funds

while he remained employed in the identical position and earning

the same salary. If Respondent desired to collect his Severance

Payment under his Employment Agreement ; then , ethically , he should

have left his position once Ms. Reilly terminated his contract.

On the other hand, if Respondent wanted to continue working for as

a public servant for the ClerkÓs O ffice, then he should not have

colluded with Ms. Reilly to have his Em ployment Agreement

terminated.

68 . Furthermore, Respondent abused his public position of

trust by demanding subordinate employees process the Severance

Payment without the proper docume ntation or justification. But

for his official position, Respondent would not have been able to

direct ClerkÓs Office employees to i ssue the public funds to him.

69 . Accordingly, RespondentÓs pursuit and receipt of the

Severance Payment was unethical in violation of Florida law.

Contrary to the Florida Code of Ethics, Respondent used his public

office for private gain. He did not observe Ðthe highest

standards of ethicsÑ consistent with the Florida Code of Ethics.

Neither did he recognize that Ðpromoti ng the public interest and

maintaining the respect of the people in their government must be

of foremost concern.Ñ See § 112.311(1) and (6), Fla. Stat.

70 . In sum, the competent substantial evidence in the record

establishes that Respondent, a public emp loyee, pursued and

received a Severance Payment to obtain a direct private financial

gain. Further, Respondent acted ÐcorruptlyÑ in that he reasonably

should have known that his receipt of the Severance Payment , while

never intending to leave his position as General Counsel for the

ClerkÓs Office , was inconsistent with the Florida Code of Ethics.

Accordingly, the Advocate proved, by clear and convincing

evidence, that Respondent vi olated section 112.313(6).

71 . Recommended Penalty : The penalties applica ble to a

public officer who violates the Florida Code of Ethics include

impeachment, removal from office, suspension from office, public

censure and reprimand, forfeiture of no more than one - third of his

or her salary for no more than 12 months, a civil pe nalty not to

exceed $10,000, and restitution of any pecuniary benefit received

because of the violation committed. § 112.317(1)(a), Fla. Stat.

Neither chapter 112, p art III, or c hapter 34 - 5 recognize any

aggravating or mitigating factors to consider when determining

the appropriate penalty.

72 . Respondent is no longer employed with the ClerkÓs Office

and has reimbursed the ClerkÓs Office the full amount of the

Severance Payment. Therefore, the only penalties to consider are

a civil penalty and public ce nsure and reprimand.

73 . In light of the facts in this matter, the undersigned

determines that a civil penalty is not warranted. Respondent

returned all moneys he obtained through his unethical conduct.

Respondent also resigned from his position with th e ClerkÓs

Office. He is not eligible for rehire. At this time, imposing a

fine on Respondent does not appear to accomplish any meaningful

objective except retribution. 6/ Aside from the subject matter of

this action, by all accounts, Respondent served co mpetently and

dutifully during the time he was employed by the ClerkÓs Office.

Ms. Gardner commented on RespondentÓs Ðextraordinary performance

and leadership.Ñ 7/ Both Ms. Gardner and Ms. Reilly extended

Respondent merit increases to his salary based on his Ðindividual

performance.Ñ 8/

74 . Accordingly, the undersigned recommends a public censure

and reprimand as the appropriate penalty for RespondentÓs

violation of section 112.313(6). This penalty should effectively

address RespondentÓs unethical conduct and denounce his

unacceptable behavior.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Commission enter a final order

finding that Respondent, Steven Carter, violated section

112.313(6), Florida S tatutes; and that Respondent be sub ject to

public censure and reprimand.

DONE AND ENTERED this 3rd day of January , 201 7 , in

Tallahassee, Leon County, Florida.

S

J. BRUCE CULPEPPER

Administrative Law Judge

Division of Admi nistrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 3rd day of January, 2017 .

ENDNOTE S

1/ Unless otherwise indicated, all references to the Florida

Statutes are to the 2013 version, which was the law in effect at

the time of the alleged statutory violation.

2/ The 2012 date by Respondent's signature is apparently a

typographica l error.

3/ Ms. Gasinski explained that ÐSix monthsÑ of salary represents

only 40 hours of pay a week. On the other hand, Ð180 daysÑ as

Respondent requested translates to 56 hours of pay a week.

4/ Ms. Murphy testified that an employee who separates f rom the

Clerk's Office is not authorized to hol d onto any annual leave

hours.

5/ Respondent also received a merit increase of 3.0 percent to

his base salary on December 30, 2013.

6/ Generally, the five principles of sentencing include

1) denu nciation, 2) deterrence, 3) protect the public,

4) retribution, and 5) rehabilitation.

7/ See Advocate Exhibit 3 which is a letter from Ms. Gardner to

Respondent, dated January 7, 2009.

8/ On November 26, 2012, Respondent received a merit increase

raising his hourly salary from $64.72 to $68.60. On December 30,

2013, Respondent received an increase in his base rate of pay of

3.0 percent .

COPIES FURNISHED:

Millie Wells Fulford, Agency Clerk

Florida Commission on Ethics

Post Office Drawer 15709

Tallahassee, F lorida 32317 - 5709

(eServed)

Elizabeth A. Miller, Esquire

Office of the Attorney General

Plaza Level 01, The Capitol

Tallahassee, Florida 32399

(eServed)

Stephan Carter

2153 Chinook Trail

Maitland, Florida 32751

(eServed)

Frank C. Kruppenbacher, Esqui re

Frank Kruppenbacher, P.A.

9064 Great Heron Circle

Orlando, Florida 32836 - 5483

(eServed)

Virlindia 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 Drawer 15709

Tallahassee, Florida 32317 - 5709

(eServed)

Advocates for the Commission

Office of the Attorney General

The Capital, Plaza Level 01

Tallahassee, Florida 32399 - 1050

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.