16-003860EC In Re: William Aristide vs. * Status: Closed Recommended Order on Wednesday, November 2, 2016.

Summary: Recommend dismissal of charge of violating section 112.3145(8)(c) due to failure of proof that Respondent is a "local officer" required to file a statement of financial interests.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

IN RE: WILLIAM ARISTIDE,

Case No. 16 - 3860EC

Respondent.

_______________________________/

RECOMMENDED ORDER

This case came before Administrative Law Judge John G.

Van Laningham for final hearing by video teleconference on

September 14, 2016, at sites in Tallahassee and Miami, Florida.

APPEARANCES

The Advocate: Melody A. Hadley , Esquire

Office of the Attorney General

The Capitol , Plaza Level 01

Tallahassee, Florida 32399 - 1050

For Respondent: Michael R. Band , Esquire

Michael R. Band, P.A.

1200 Alfred I. DuPont Building

169 East Flagler Street

Miami , Florida 33 131

STATEMENT OF THE ISSUES

The issue s in this case are (a) whether Respondent , a high

school principal, is a "local officer" required annually to file

a disclosure of financial interests pursuant to th e Code of

Ethics for Public Officers and Employees; and, if so,

(b) whether Respondent willfully failed or refused to file an

annual statement of financial interests for the year 2013, in

violation of s ection 112.3145 ( 8 ) (c), Florida Statutes .

PRELIMINARY STATEMENT

At a meeting in executive session on October 23, 2015, the

Florida Commission on Ethics determined that probable cause

existed to believe that Respondent William Aristide , as an

employee of the Miami - Dade County Public Schools, had willfull y

failed or refused to file an annual statement of financial

interests for the year 2013, in viol ation of section

112.3145(8)(c) . On July 11 , 20 16 , the c ommission forwarded the

case to the Division of Administrative Hearings ("DOAH") , where

the undersigne d administrative law judge was designated to

preside over the formal hearing.

The final hearing took place, as scheduled, on

September 14, 2016. The Advocate called the following

witnesses: Mr. Aristide and Kimberly Holmes. In addition, the

Advocate' s E xhibits 2 through 10 and 12 were received.

In his case, Mr. Aristide testified on his own behalf and

presented the following additional witnesses: Dionne Plummer,

Kerby Delancy, Karen Fryd, Wallace Aristide, Stephanie

Frederick, Cornelius Handfield, and Kevin Lawrence . As well,

Respondent ' s E xhibits 2 through 4 were admitted into evidence.

The parties stipulated to t he admission of Joint Exhibits 1

through 6 . They also filed a Joint Prehearing Stipulation,

which will be discussed below, as relevant.

The final hearing transcript was filed on October 6 , 20 16 .

Thereafter, each side timely filed a proposed recommended order.

Unless otherwise indicated, citations to the official

statute law of the state of Florid a refer to Florida Statutes

2016 , except that all references to statutes or rules defining

disciplinable offenses or prescribing penalties for committing

such offe nses are to the versions that were in effect at the

time of the alleged wrongful acts.

FINDINGS OF FACT

1. At the time of the final hearing, Respondent William

Aristide ("Aristide" ) was the principal of Booker T. Washington

Senior High School in Miami, Florida, a position he had held at

all t imes material to this proceeding. In that capacity, he has

been, at all times, an employee of the Miami - Dade County Public

Schools ("M - DCPS"), a school district in the state of Florida.

2. On March 2 5 , 2015, the Florida Commission on Ethics

("Commission") mailed to Aristide a Notice of Assessment of

Automatic Fine, which informed Aristide that a daily fine of

$25.00 had run against him for each day his 2013 Statement of

Financial Interests had remained unfiled after September 2,

2014 . Because Aristide had filed his disclosure statement more

than 60 days after this deadline, the notice advised, the

Commission had assessed the maximum fine amount of $1,500.00

against him, which would need to be paid with in 30 days unless

Aristide appealed the imposition.

3. Aristide neither appealed the assessment nor paid the

fine. Therefore, on April 30, 2015, the Commission sent

Aristide a Final Notice of Assessment of Automatic Fine for

Failure to Timely Fi l e For m 1, Statement of Financial Interests,

which informed him that he had waived his right to appeal, and

that if he failed to pay the fine within 30 days, the Commission

would "enter an order setting [his] fine at $1,500 and [would]

utilize all methods allowe d by law to collect this fine."

4. Aristide did not pay the fine. Consequently, o n

July 29, 2015, the Commission rendered a Default Final Order

finding that "William Aristide, Miami - Dade County Public

Schools, Employees, was on the list of persons required to file

a Statement of Financial Interests for the year 2013"; that he

had not timely filed the statement and thus been fined

$1,500.00; that h e had failed to appeal the assessment of the

fine and thereby waived the right to do so; and that the fine

remained unpaid. Based on these findings, the Commission

"affirmed" the fine amount of $1,500.00, ordered that Aristide

pay the fine within 30 days, and warned that nonpayment would

trigger collection efforts, including withholding of salary

until satisfaction of the debt.

5. Aristide still did not pay the fine. So, the

Commission exercised its authority to request M - DCPS to withhold

from Aristide' s paychecks the maximum amount allowable under the

law and to remit such withh eld payments to the Commission until

the fine was paid. M - DCPS complied. On December 15, 2015, the

Commission received from the school district the final

installme nt on the $1,500.00 debt, which, by that coercive

means, Aristide has paid in full.

6. Meantime, the Commission began taking steps to fulfill

its obligation s under section 112.3145(8)(c) , which requires

that, whene ver a person accrues the maximum auto matic fine of

$1,500.00, the Commission "shall initiate an investigation and

conduct a public hearing without receipt of a complaint to

determine whether the person's failure to file is willful." On

April 15, 2015, the Commission issued a Determination of

Investigative Jurisdiction and Order to Investigate , which

stated that Aristide "allegedly serves as Principal for Miami -

Dade County Public Schools, a position requiring the annual

filing of a Statement of Financial Interests (CE Form 1)," and

directed staff to "conduct an investigation . . . for a probable

cause determination as to whether [Aristide] has willfully

failed or refused to file an annual disclosure statement."

7. On October 28, 2015, its investigation complete, the

Commission entered an Or der Finding Probable Cause announcing

"that there is probable cause to believe that [Aristide], as a

local officer required to file financial disclosure, violated

Section 1123145(8)(c) [ sic ], Florida Statutes, by willfully

failing or refusing to file an an nual CE Form 1 , Statement of

Financial Interests for the year 2013, required to be filed by

him due to his holding or having held the position of principal

for a Miami - Dade public school." The Commission, accordingly ,

ordered a public hearing, and, on Jul y 11, 2016, the matter was

referred to DOAH.

8. On September 8, 2016, ahead of the final hearing in

this case, the parties filed a Joint Prehearing Stipulation .

The parties stipulated to the fact that Aristide "was aware that

he was required to file a CE Form 1 every year including for the

year 2013." JPS at 7. They stipulated, as well, to the legal

conclusion that Aristide "is subject to the requirements of

Part III, Chapter 112, Florida Statutes, the Code of Ethics for

public officers and employees, for his acts and omissions during

his tenure as the principal of Booker T. Washington S enior High

School." Id. at 8. Finally, in his unilateral statement of

po sition, Aristide "acknowledge[d] that his position as a

principal required the filing of a CE Form 1, ' Statement of

Financial Interests ' for 2013." Id. at 3.

9. Throughout this proceeding, the parties have operated

under the belief that Aristide is a "local officer" required by

statute to file financial disclosure statements because he is a

public school principal. This assumption, however, is not

legally correct. As will be discussed below, a public school

principal , qua principal , is not a "local officer." Rather, a

public school principal is a "local officer" only if he is a

"purchasing agent having authority to make any p urchase

exceeding" $20,000.00 on behalf of the school district , or

happens to hold some other position which, unlike principal, is

included in the definition of a "local officer . " See

§ 112.3145(1)(a)3., Fla. Stat. (defining "local officer"). (For

ease of reference, the term "Local Purchasing Agent" will be

used to refer to a person who has the authority to make any

purchase "on behalf of any political subdivision of the state or

any entity thereof" exceeding "the threshold amount provided for

in s. 287.017 for CATEGORY ONE," 1 / and who, for that reason,

falls within the definition, qua purchasing agent, of a "local

officer" for purposes of section 112.3145.)

10. The only public position that Aristide held is that of

school principal. The Commission did not allege, nor did the

parties stipulate to, any facts concerning the nature and exten t

of Principal Aris tide's unilateral authority to spend M - DCPS's

money as a purchasing agent. There is , moreover, no direct

evidence in the record to support a finding that Aristide wa s

able, on his own authority , to make any purchase in excess of

$20,000.00 for the school district. Aristide testified,

credibly, that in "Miami - Dade County a principal cannot write a

check for over a thousand dollars without having three bidders

. . . . It's difficult to get a check without that. And the

second part of it even after, let's say I agree to something,

it's costing $1500, there are five additional signatures above

me to make sure that whatever the process is it's completed and

is so forth." Tr. 106 - 07. This testimony establish es that

Aristide had spending authority, but it fa ils to prove , even by

implication, that he possessed the unilateral power to approve

the expenditure of $20,000.00 in public funds for any purchase. 2 /

11. Because it is not common knowledge that M - DCPS

principals , or any of them, are authorized independently to make

purchases exceeding $20,000.00, the fact cannot simply be

assumed. The strongest circumstantial evidence of this fact is

Respondent's Exhibit 2, a composite comprising several years'

worth of M - DCPS financial disclosu re forms, signed by Aristide,

which (he credibly testified) his employer requires "principals

to file." Tr. 104. The form (FM - 4198) , titled "FINANCIAL

DISCLOSURE FOR CALENDAR YEAR ________ , " states at the top:

"PERSONNEL AUTHORIZED TO MAKE PURCHASES EXC EEDING $20,000 [Sec.

297.017(1), F.S.] ," followed by the definition of "purchasing

agent" codified in section 112.312(2).

12. Form FM - 4198 (or at least so much of it as is in

evidence) contains no information or instructions regarding who

must file. Aristide's testimony proves that that "principals"

must file the form, but not that principals are authorized to

make purchases exceeding $20,000.00. Form FM - 4198 could

reasonably support the narrow inference that personnel (perhaps

even all personnel) ha ving purchasing power in excess of

$20,000.00 must file, but it does not support the larger

inference that only such personnel must file. Indeed,

Aristide's testimony negates such an inference unless one

assumes that principals are authorized to spend mor e than

$20,000.00 on a purchase, which is the very fact at issue.

13. Thus, while it might be reasonable to infer from the

face of Form FM - 4198 that all personnel authorized to make

purchases exceeding $20,000.00 must file, it is not reasonable

to infer therefrom that all personnel who must file are

authorized to make purchases exceeding $20,000.00. The

unde rsigned declines without hesitation to infer that Aristide

possesse d the power to spend more than $20,000.00 on any

purchase, fo r there are no proven basic facts which logically

compel ÏÏ with the persuasive force of clear and convincing

evidence no less 3 / ÏÏ an inference to that effect . 4 /

14 . The upshot is that the Commission has failed to offer

evidence sufficient to prove that Aristide is , in fact, a "local

officer" required to file a statement of financial interests.

Because, for want of proof, the undersigned cannot make a

finding of fact that Aristide holds a position that meets the

definition of a "local officer," 5 / he is compelled to conclude,

for reasons that will be explained more fully below, that the

Commission lacks jurisdiction to maintain this proceeding, which

ac cordingly must be dismissed.

CONCLUSIONS OF LAW

1 5 . Section 112.3145(2)(b), Florida Statutes, provides

that "[e]ach state or local officer and each specified state

employee shall file a statement of financial interests no later

than July 1 of each year." For purposes of this requirement,

the terms "state officer," "local officer," and "specified state

employee" are separately defined. A person holding public

office or public employment is obligated to file a financial

disclosure form ( i.e., is a "Filer" ) only if he or she meets the

definition of one of these types of public servant.

16 . As a school principal working for M - DCPS under an

employment contract, Aristide is a Filer only if he meets the

definition of a "local officer." Generally speaking, the term

"local officer" includes all person s holding elective office in

any political subdivision of the state, e.g., county

commissioners, as well as persons appointed to local boards,

councils, commissions, and the like, e.g., members of planning

or zoning boards. Aristide is not an elected or appointed

official.

17 . The term "local officer" also includes persons holding

any "one of more of the following" specifically identified

positions:

mayor; county or city manager; chief

administrative employe e of a county,

municipality, or other political

subdivision; county or municipal attorney;

finance director of a county, municipality,

or other political subdivision; chief county

or municipal building code inspector; county

or municipal water resources co ordinator;

county or municipal pollution control

director; county or municipal environmental

control director; county or municipal

administrator, with power to grant or deny a

land development permit; chief of police;

fire chief; municipal clerk; district school

superintendent ; community college president;

district medical examiner; or purchasing

agent having the authority to make any

purchase exceeding the threshold amount

provided for in s. 287.017 for CATEGORY ONE,

on behalf of any political subdivision of

the state or any entity thereof.

§ 112.3145(1)(a)3., Fla. Stat. (emphasis added). Notably absent

from this list of positions is public school principal. While

this omission is sufficient, of itself, to conclude that school

principals, as principals, are not "local officer" Filers, the

inclusion of district school superintendents drives the point

home. Expressio unius est exclusio alterius . 6 /

1 8 . In previous opinions, the Commission "has advised that

public school principals and other employees of a school

district are required to file financial disclosure annually if

they have the authority to make any purchase exceeding" the

minimum amount necessary to be considered a Local Purchasing

Agent. CEO 82 - 63 ( Fla. Comm'n on Ethics July 29, 1982); see

also, e.g. , CEO 80 - 43 (Fla. Comm'n on Ethics May 21, 1980). At

the time CEO 82 - 63 was issued, the statutory threshold for

achieving Local Purchasing Agent status was a mere $100.00 of

independent spending power . In those days, n o doubt most, if

not all, school principals posse ssed the independent authority

to make purchases exceeding $100.00, and surely, more than

30 years later, they all do.

1 9 . But the threshold is no longer $100.00. As mentioned

above, it is $20,000.00 today and has been that amoun t at all

times relevant to this case. This substantial increase

obviously reflects a desire to adjust for something other than

inflation; presumably, the intent was to materially reduce the

number of persons who, as Local Purchasing Agents, would be

Filer s. The undersigned cannot and will not infer that Aristide

has the unilateral power to spend tens of thousands of dollars

in public funds simply because he is a school p rincipal.

Competent substantial e vidence (or a stipulation of fact )

directly establishing such authority must be introduced before

it can be found that a school principal is a Local Purchasing

Agent and , as a Local Purchasing Agent , a "local officer" Filer.

20 . The undersigned is, of course, fully aware of the

parties' stipulat ion that Aristide is a Filer "during his tenure

as [a] principal," and of Aristide's admission that "his

position as a principal required" him to file a statement of

financial interests for the year 2013. Aristide's admission,

however, "cannot create an o therwise nonexistent legal duty."

Alvarez v. Smith , 714 So. 2d 652, 653 (Fla. 5th DCA 1998).

Moreover, t he parties' stipulation on a question of law ÏÏ namely

Aristide's legal obligation to file financial disclosure forms ÏÏ

is "not binding on the administra tive law judge and he [is] free

to disregard it." Diaz de la Portilla v. Fla. Elec . Comm'n , 857

So. 2d 913, 917 n.3 (Fla. 3d D CA 2003) . To the extent these

stipulations were factual in nature, it is clear that no

agreement as to the dispositive fact, i.e ., that Aristide

possesses sufficient independent spending power to be considered

a Local Purchasing Agent, was reached. See McClash v. Dep't of

Bus. & Prof'l Reg. , 798 So. 2d 775, 776 (Fla. 2d DCA 2001).

Rather, the parties' stipulations were based on t he mistaken

belief that the law obligates school principals such as

Aristide, in their capacities as principals, to file statements

of financial interests.

2 1. Finally, as mentioned, the question of whether

Aristide is a Local Purchasing Agent (or some other "local

officer") goes to the Commission's subject matter jurisdiction.

The Commission's jurisdiction to prosecute alleged violation s of

section 112.3145(8)(c) obviously extends only to Filers. A high

school principal is not, without more, a "local officer," and

thus he is not a Filer unless he happens to be a "local officer"

for some reason beside the fact that he is a school principal.

In the past, school principals ha ve been found to be Filers

when , in fact, they possessed enough unilateral spending

authority to qualify as Local Purchasing Agents, who (unlike

school principals) are "local officers." In this proceeding,

the Commission has never made factual allegations which, if

proven or stipulated to, would establish that Aristide is a

Local Purchasing Agent (or some other "local officer"). Thus,

the parties' stipulation that Aristide is subject to the

financial disclosure requirements of chapter 112 amounts to a

pro hibited ÏÏ and ineffectual ÏÏ stipulation to jurisdiction. See

Grand Dunes, Ltd. v. Walton Cnty. , 714 So. 2d 473, 474 - 75 (Fla.

1st DCA 1998).

22 . It is concluded, therefore, that the parties did not

effectively stipulate to facts sufficient to establish t hat

Aristide is a Filer.

23 . The Commission, in sum, is without jurisdiction to

proceed in this matter.

RECOMMENDATION

Based on the foregoing , it is RECOMMENDED that the

Commission enter a final order dismissing this proceeding for

lack of jurisdiction .

DONE AND ENTERED this 2nd day of November , 2016 , in

Tallahassee, Leon County, Florida.

S

JOHN G. VAN LANINGHAM

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 2nd day of November , 2016 .

ENDNOTES

1 / Since July 1, 2010, and at all times relevant to his case,

the threshold amount provided for in section 287.017, Florida

Statutes, for CATEGORY ONE has been $20,000.00. See Ch. 2010 -

151, § 15, Laws of Fla.

2 / It is not even clear that Aristide possess ed the authority to

requisition such a purchase, but if he did, the authority to

request a purchase is not the same as the authority to make a

purchase. See § 112.312(20), Fla. Stat. (definition of

"purchasing agent").

3 / The Commission has the burden o f proving Aristide's

culpability by clear and convincing evidence. Latham v. Fla.

Comm'n on Ethics , 694 So. 2d 83, 84 (Fla. 1st DCA 1997).

4 / The undersigned believes it would not be reasonable to infer,

under any standard of proof, that unilateral auth ority to

approve any $20,000.00 purchase on behalf of the school district

inheres in the position of M - DCPS principal. Although the

undersigned would not be surprised to learn that all of the

district's principals are authorized to make purchases exceedin g

$20,000.00, neither would he think it unusual if none did, or if

some do and some do not, depending on the particular

circumstances. Were it necessary to make an affirmative finding

in this regard, therefore, the undersigned would not draw the

inculpato ry inference, i.e., that all principals possess such

spending power and thus Aristide did, even under a lesser

standard of proof.

5 / To be clear, the undersigned is not finding, affirmatively,

that Aristide is not a "local officer" for purposes of secti on

112.3145, but is determining, rather, only that the Commission

has failed, in this case, to prove that he is ÏÏ a fact upon which

the Commission's jurisdiction depends. Put in slightly

different terms, the Commission (or its Advocate) lacks

standing, in effect, to prosecute a person under section

112.3145(8)(c) unless that person is shown by the Commission to

have been obligated in the first instance to file the statement

of financial interests he is alleged willfully to have failed to

file. As the party seeking relief, the Commission had the

burden of proving its right to initiate and maintain this

prosecution, which it failed to meet; the Commission's subject

matter jurisdiction hung in the balance. Cf. Abbott Labs. v.

Mylan Pharms., Inc. , 15 So. 3d 64 2, 651 n.2 (Fla. 1st DCA

2009)(" [S]tanding in the administrative context is a matter of

subject matter jurisdiction and cannot be conferred by consent

of the parties."). It is possible, of course, that evidence not

offered in this case would show that Ari stide is, in fact, not

only a high school principal, but also a Local Purchasing Agent.

Therefore, if Aristide knows that he possesses enough spending

power to qualify, qua Local Purchasing Agent, as a "local

officer," then he should continue to file stat ements of

financial interests to avoid facing future enforcement

proceedings for noncompliance, where adequate proof of his

purchasing authority might be offered.

6 / As employees working under written contract, see

section 1012.33(1)(b), Fl orida Stat u tes , school principals do

not fit comfortably within the common legal meaning of the term

"officer." See Black's Law Dictionary 977 (5th ed.

1979)(definition of "officer" notes that one important test for

distinguishing an "officer" from an "employee" is whether the

position is held "merely by a contract of employment by which

the rights of the parties are regulated"). Thus, it should not

be surprising that the legislature left school principals off

the list of local Filers. Further, a principal may be d ismissed

"during the term of [his written employment] contract only for

just cause." Id. Indeed, to dismiss a principal for just cause

during the term of his or her contract, the "charges against him

or her must be based on immorality, misconduct in office,

incompetency, gross insubordination, willful neglect of duty,

drunkenness, or being c onvicted or found guilty of, or entering

a plea of guilty, regardless of adjudication of guilt, any crime

involving moral turpitude." § 1012.33(6)(b), Fla. Stat. A

principal facing such charges is entitled to an administrative

hearing before the district school board, whose final decision

may be appealed to the district court. Id. Given that the only

prescribed penalty for a violation of section 112.3145(8)(c) is

removal of the guilty party from his or her public office or

public employment, i.e., dismi ssal, the mention of school

principals in the definition of "local officer" would have

necessitated an amendment of section 1012.33 to avoid a conflict

between these statutes. As it stands, if a school principal

were found guilty of willfully failing, as a Local Purchasing

Agent, to file a statement of financial interests, then the only

"public office" from which he could be removed would be that of

Local Purchasing Agent. Such a removal would be achieved, in

full, merely by limiting his independent spend ing power to

$20,000.00 per purchase, at which point the principal would no

longer be a "local officer."

COPIES FURNISHED:

Melody A. Hadley, Esquire

Office of the Attorney General

The Capitol, Plaza Level 01

Tallahassee, Florida 32399 - 1050

(eServed)

Michael R. Band, Esquire

Michael R. Band, P.A.

1200 Alfred I. DuPont Building

169 East Flagler Street

Miami, Florida 33131

(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)

Millie Wells Fulford, Agency Clerk

Florida Commission on Ethics

Post Office Drawer 15709

T allahassee, 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 filed with the agency that

will issue the Final Order in this case.