16-005781EC In Re: Cary Pigman vs. * Status: Closed Recommended Order on Monday, March 27, 2017.

Summary: Advocate failed to prove by clear and convincing evidence that Respondent, a State Respresentative, misused his position in violation of section 112.313(6), Florida Statutes.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

IN RE: CARY PIGMAN, Case No. 16 - 5781EC

Respondent.

_______________________________/

RECOMMENDED ORDER

Pursuant to notice, a final hearing was conducted in this

matter on January 3 and 4 , 201 7 , by video teleconference sites in

Tallahassee and West Palm Beach , Florida , before Administrative

Law Judge June C. McKinney of the Division of A dministrative

Hearings ("DOAH") .

APPEARANCES

For Advocate: Melody A. Hadley , Esquire

Office of the Attorney General

The Capitol , Plaza Level 01

Tallahassee, Florida 32399

For Respon dent: D. Ty Jackson, Esquire

Allison Mawhinney , Esquire

GrayRobinson, P.A.

301 South Bronou gh Street, Suite 600

Post Office Box 11189

Tallahassee, Florida 32302 - 3189

STATEMENT OF THE ISSUE

The issue is whether Representative Cary Pigman violated

section 112.313(6), Florida S tatutes , by linking his efforts to

obtain legislative funding for the Okeechobee School District

("School District") to retaliate and/or attempt to retaliate

against an employee of the School District and ; if so, what is

the appropriate penalty.

PRELIMINARY STATEMENT

On September 14, 2016, the Florida Commission on Ethics

( " Commission " ) issued an Order Finding Probable Cause to believe

that Edwin Cary Pigman ( " Respondent " or " Representative Pigman " ) ,

as a member of the Fl orida H ouse of Representatives, violated

section 112.313 (6) . The Order Finding Probable Cause against

Respondent was referred to DOAH on October 6, 2016, for

assignment of an administrative law judge.

The case was scheduled for hearing on January 3 and 4, 2017.

The final hearing proceeded as scheduled.

At hearing, the Advoc ate presented the testimony of four

witnesses: Kenneth Kenworthy , s uperintendent of Okeechobee

C ounty Schools; Tracy Downing , c omplainant; Keith Powell,

investigator for the C ommission; and Respondent. Advocate did

not offer any exhibits into evidence.

Respondent testified on his own behalf and presented the

testimony of Kenneth Kenworthy . RespondentÓs Exhibits numbered

2, 5, and 7 were admitted in to evidence.

The proceedings were transcribed and t he three - volume

Transcript was filed on January 24, 2017 . All parties timely

filed their proposed recommended orders, which have been

carefully considered in the preparation of this Recommended

Order. All references to the Florida Statutes are to the 2015

codification, unless otherwise indicated.

FINDINGS OF FACT

1. Respondent serves as a member of the Florida House of

Representatives , District 55 , which includes Okeechobee County,

Florida . He has served in the position since 2012.

2. Representative Pigman received ethics training when he

became a Legislat or.

3. On October 16, 2015, Respondent and Stat e Senator Denise

Grimsley ( " Senator Grimsley " ) held a Legislative Delegation

meeting ("delegation meeting") in Okeechobee County to allow

constituents , organizations, and agencies to present legislative

requests and share information .

4. Okeechobee County Superintendent Ken neth Kenworthy

( " Superintendent Kenworthy " ) appeared at the Legislative

Delegation meeting and requested three items : 1) fund ing for

the lowest 300 schools in rea ding to add an extra hour a day ;

2) accountability and assessment for learning games not

calculated; and 3) support for the S chool D istrict Ós application

to the Florida Department of Education 1 / for approximately

60 million dollars in special facilities funds to build a new

O ke e chobee high school. 2 /

5. Prior to the d elegation meeting, Superintendent

Kenworthy had asked that his principals attend the meeting if

free . Attendance was voluntary. Tracy Downing

( " Mrs. Downing " ), principal of South Elementary School ( " South " )

in Okeechobee County , attended the meeting at the request of her

supervisor , Superintendent Kenworthy , along with other school

district representatives . Mrs. Dow n ing invited parents to attend

the meeting and one parent attended .

6. Mrs. Downing has 21 years in the education profession

and the last 11 years she has been an administrator. She has

been the principal at South for two years.

7. Before the delegation meeting started, Representative

Pigman went do wn the row s shakin g hands and introducing himself

to the attendees . When Respondent got to Mrs. Downing , she

introduced herself as Tracy Maxwell , her maiden name instead of

Tracy Downing . Mrs. Downing squeezed his hand, continued to hold

Representative Pigman Ós ha n d after the handshake for a n extended

period of time and stared at him mak ing him uncomfortable until

he started blinking , and he had to pull away from her g rasp .

8. During the meeting, Mrs. Downing directed an obscene

gesture at Representative Pigman. She had her middle finger on

her face purposely flipping him a bird , 3 / which means "f___ you . "

9. Mrs. Downing was angry at Respondent and acted

inappropriately because of RespondentÓs over yearlong romantic

relationship with then Elizabeth Maxwell ( " E. Maxwell " ) , the

then - separated wife of Mrs. Downing Ós brother, Devin Maxwell

( " Maxwell " ) . At least 10 months of the relationship was public.

10. Maxwell was incarcerated at the time of the d elegation

meeting and Mrs. Downing believed Respondent was visiting then

E. Maxwell at the marital home , " sleeping in [her] brotherÓs

b ed , " and had moved into her brotherÓs house.

11. In November 2015, Representative Pigman Ós current wife,

then E . Maxwell, obtained audio recordings from the jail that had

taped conversations of visits between Mrs. Downing and Maxwell .

The conversations included discussions regarding the delegation

meeting and the education of E . Maxwell and MaxwellÓs daughter.

12. After hearing the exchange of the jailhouse reco rdings,

Respondent felt obligated to report Mrs. DowningÓs misbehavior to

her supervisor, Superintendent Kenworthy, because her conduct

reflected neg atively on the School District. Respondent felt it

was his duty to report the principalÓs rudeness and sto p such

future behaviors.

13. Soon thereafter , E . Maxwell arranged a meeting with

Superintendent Kenworthy to report Mrs. Downing Ó s mis behavior at

the delegation meeting and to discuss E . MaxwellÓs daughterÓs

education al progress at South with her aunt , Mrs. Downing , the

principal . One scheduled meeting was cancelled when

Representative Pigman could not attend. The e arliest

Superintendent Ken worthy, Representative Pigman and E. Maxwell

could meet was December 8, 2015.

14. On December 8, 2015, Represen tative Pigman and

E. Maxwell played portions of the four audio taped jail

conversations between Mrs. Downing and Maxwell for Superint endent

Kenworthy in his office. The recorded tapes included a

conversation regarding the legislative delegation meeting w here

Mrs. Downing confirmed her inappropriate cond uct and bragged to

her brother "I gave that man hell" during the legislative

hearing. Mrs. Downing detailed the incident to her brother on

the recordings. She said that " Pigman was there shaking all the

p rincipals hands and when he got to me he said I am Cary Pigman,

and I said I am Tracy Maxwell. And, then he blinked rapidly like

three four times and I wouldnÓt let go of his hand and he pulled

his hand out of my hand. Then, when he sat down [for the

mee ting] I looked at him two hours straight. Every time he would

look at me he would blink like he was really uncomfortable.

Then, Andy Brewer and I walked out of the courthouse and we stood

there and stared him down until he got in his stupid little jeep

a nd drove off with Justin Morgan." On the jailhouse recordings,

Mrs. Downing also called Representative Pigman a bastard multiple

times. Mrs. Downing further explained to her brot her " every time

[Respondent] looked at me I - actually, well, I probably shoul dnÓt

say this . . . . Ñ

15. After listening to the audio recordings, Representative

Pigman informed Superintendent Kenworthy about Mrs. Downing Ós

inappropriate conduct during the delegation meeting. Respondent

told Superintendent Kenworthy that he could not believe the

callous disregard for this district , when he looked at

Mrs. Downing in the delegation meeting , she had her middle fi nger

up to her forehead , flipping him off . Respondent expressed his

dissatisfaction with Mrs. Downing Ós beh avior to Superintendent

Kenworthy and also questioned whether Mrs. Downing could be t he

best Okeechobee School D istrict ha s to offer. Respondent

explained to Superintendent Kenworthy the performance of

Mrs. Downing in leadership gives me pause. Representative Pigman

also said this incident will be in the " back of my mind when

thinking about the school district . " 4 /

16. Neither Respondent nor E. Maxwell mentioned or asked

for discipline for Mrs. Downing during the meeting.

17. Respondent believed Maxwell had stopped the previous

request for a transfer of E. MaxwellÓs daughter to North

Elementary School ("North") . Respondent re cognized that he was

sensitive when it came to incidents related to E. Maxwell 's

divorce proceedings and decided not to pa rticipate i n the second

part of the meeting.

18. After Respondent was finished expressing his concern s

about Mrs. Downing Ós conduct, he went in the hallway and left

E. Maxwell alone to meet with Superintendent Kenworthy regarding

her daughter going to N orth .

19. After the meeting, Superintendent Kenworthy found out

that space was available at North and a zone waiver was granted

for E. MaxwellÓs daughter. That same day Superintendent

Kenworthy contacted E. Maxwell and notified her that space was

available at North in fourth grade but not with the teacher she

requested.

20. Superintendent Kenworthy was concerned that one of his

principals behaved in such a manner as was reported to him by

Respondent.

21. On Dece mber 9, 2015 , Superintendent Kenworthy met with

Mrs. Downing and reviewed what had been reported to him from the

previous day Ós meeting with Respondent and E. Maxwell.

Superintendent Kenworthy shared the contents of what he learned

from listening to the j ailhouse audio tapes of Mrs. Downing

talking with her brother. Superintendent Kenworthy also told

Mrs. Downing he had concerns about her behavior during the

delegation meeting and her following the Respondent after th at

meeting .

22. Mrs. Downing acknowledged to Superintendent Kenworthy

that she was behind Representative Pigman a couple of blocks for

a portion of her normal route back to work. Mrs. Downing also

admitted her wrongdoings and confessed to Superintendent

Kenworthy that she introduc ed herself as Maxwell , instead of

Mrs. Downing , held Representative PigmanÓs hand after shaking it

until he had to pull it away, and flipp ed Representative Pigman

off when he looked at her in the audience. Mrs. Downing

apologized for her behavior and explai ned to Superintendent

Kenworthy that she was extremely upset with the family situation

between R espondent , her brother , and her brotherÓs estranged

wife , E. Maxwell .

23. Superintendent Kenworthy informed Mrs. Downing that she

was at the delegation meeting representing the district and her

public actions displayed w ere conduct unbecoming a school

principal and unprofessional behavior . He also informed her that

her public misconduct was what he was addressing , not the

interactions with her brother. Superintendent Kenworthy

concluded the meeting by informing Mrs. Downing that he would

decide what consequences were appropriate for her actions .

Mrs. Downing suggested to Superintendent Kenworthy that he should

reprimand her.

24. On December 14, 201 5, E. Maxwell came in and signed the

zone waiver to move her daughter to North .

25. Superintendent Kenworthy continued investigating

Mrs. Downing Ós conduct from the delegation meeting in order to

decide the appropriate discipline . His investigation followed

the School DistrictÓs procedures when a complaint has been

received. Superintendent Kenworthy interviewed Jill Holcomb , who

sat next to Mrs. Downing at the delegation meeting , and Andy

Brewer, who walked out of the meeting with Mrs. Downing . He also

talked to school board members and the school board attorney.

26. On December 17, 2015 , Superintendent Kenworthy watche d

the video of the d elegation meeting , but the video only showed

the left side of the room and Mrs. Downing sat on the right side

during the meeting.

27. That same day , Superintendent Kenworthy met with

Mrs. Downing and her husband and explained that he determined

that Mrs. Downing violated several district policies with her

harassing conduct including : principals of professional conduct ;

bullying and harassment policy ; good moral character requirement ;

and the code of ethics.

28. During that same meeting , Superintendent Kenworthy

requested that Mrs. Downing share anything with him that

Rep resentative Pigman had stated that was not true. Mrs. Downing

admitted flipping Respondent off but clarified she did not f lip

him off multiple times. Superintendent Ken worth y explained that

the number of times did n o t make a difference because h er

behavi or was not excused . Mrs. Downing informed Superintendent

Kenworthy that she did not realize one obscene gesture in the

spur of the moment would lead to something like this.

Mrs. Downing and her husband also did not disagree with the

district policies Superintendent Kenworthy outlined in the

meeting that Mrs. Downing v iolated by her conduct at the public

delegation meeting . 5 /

29. Superintendent Kenworthy did not take in consideration

who reported Mrs. Downing Ós public misconduct when deciding the

appro priate discipline . Respondent did not play any role in

Superintendent Kenworthy Ós decision to discipline Mrs. Downing .

Even if it had been a private citizen instead of Respondent who

reported Mrs. Downing , Superintendent Kenworthy would have

disciplined Mrs. Downing the same.

30. Superintendent Kenworth y offered Mrs. Downing an

opportunity to resign from her position or he would move forward

with termination.

31. On December 18, 2015, Superintendent Kenworth y spoke to

Mrs. Downing again by phone. She indicated " this one moment of

in discretion has caused her a lot " a nd " she didnÓt know why she

did it . " Mrs . Downing asked the superintendent to consider her

20 years of service to the district and requested a settlement

regarding discipline .

32. On D ecember 19 , 2015, Mrs. Downing called

Superintendent Kenworthy and informed him that she would not be

resigning.

33. On or about December 22, 2015, Mrs. Downing filed the

instant ethics complaint against Respondent.

34. Superintendent Ken worthy decided that he did not want

to publicly air either a pri n cipalÓs misbehavior or the Maxwell s '

and Pigman sÓ personal issues , and he took into consideration

Mrs. Downing Ós 20 plus year work history with the district and

switched Mrs. DowningÓs discipline from termination to a

suspension.

35. O n December 29, 2015 , Superintendent Kenworthy spoke to

Mrs. Downing about a settlement and offered her a 10 - day

suspension without pay for her mis conduct at the delegation

meeting , which violated the sch ool board rules . Mrs. Downing

accepted and served the suspension . She is still employed with

the district as a principal.

36. By letter dated January 4, 2016 , Superintendent

Kenworthy disciplined Mrs. Downing with a 10 - day suspension. The

suspension without pay letter outlined Mrs. Downing Ó s actions and

School Board violations and stated :

[W] hile on duty representing the school

district, the manner in which you introduced

yourself shook hands to the point an

individual became so unco mfortable as to

blink extensively later bragged that you gave

this person ÒhellÓ during the hearing and

stared him down, and used your middle finger

to flip him off while actin g like you were

scratching your face constitutes a violation

37. On or about January 22, 2016, Senator Grimsley and

Representative Pigman wrote a letter of support to the Office of

Educational Facilities at the Florida Department of Education for

the new high school .

38. On or about February 9, 201 6 , Superintendent Ken worth y

rece ived a letter from the Pre - Application Review Committee at

the Florida Department of Education informing him that the

committee convened on December 10, 2015 , and review ed the

proposed new high school project . The committee denied the

request after determ ining that the project is not a critical need

for Okeechobee County.

39. On September 14, 2016, an Order Finding Probable Cause

was issued alleging Respondent violated section 112.313(6).

CONCLUSIONS OF LAW

40. DOAH has jurisdiction over the parties and the subject

matter of this proceeding pursuant to sections 120.569 and

120.57(1), Florida Statutes ( 2016) .

41. Respondent is subject to the requirements of

chapter 112, part III, Florida Statutes, and the Code of Ethics

for Public Officers and Employees, for his acts and omissions as

a member of the Florida House of Representatives.

42. Section 112.322 and Florida Administrative Code

Rule 34 - 5.0015, authorize the Commission to conduct

investigations and to ma ke public reports on complaints

concerning violations of chapter 112, part III .

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

the contrary, is on the Commission, the party asserting the

affirmative of the issue of these proceedings. Dep't of Transp.

v. J.W. C. Co., Inc. , 396 So. 2d 778 (Fla. 1st DCA 1981); Balino

v. Dep't of HRS , 348 So. 2d 349 (Fla. 1st DCA 1977). In this

proceeding, it is the Commission, through its Advocate, that

is asserting the affirmative: that Respondent violated

sec tion 112.313(6) .

44. The Advocate has the burden to establish the

allegations in the Order of Finding Probable Cause by clear and

convincing evidence. See Latham v. Fla. Comm'n on Ethics , 694

So. 2d 83 (Fla. 1st DCA 1997).

45. As noted by the Supreme Court of Florida:

Clear and convincing evidence requires that

the evidence must be found to be credible;

the facts to which the witnesses testify must

be distinctly remembered; the testimony must

be precise and explicit and the witnesses

must be lacking in confusion as to t he facts

in issue. The evidence must be of such

weight that it produces in the mind of the

trier of fact a firm belief or conviction,

without hesitancy, as to the truth of the

allegations sought to be established.

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

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

46. C lear and convincing evidence requires more than a

preponderance of the evidence, and less than the criminal

standard of beyond a reasonable doubt . In re : Graziano , 696 So.

2d 744, 753 (Fla. 1997).

47. The Order Finding Probable Cause in this matter

alleges that " Respondent , as a member of the Florida House of

Representatives, violated secti on 112.313(6) by linking his

efforts to obtain legislative funding for the Okeechobee School

District to retaliation and/or an attempt to retaliate against an

employee of the School District. "

48. Section 112.313(6) provides in pertinent part :

MISUSE OF PUBLIC POSITION. No public

officer, employee of an agency, or local

gov ernment attorney shall corruptly use or

attempt to use his or her official position

or any property or resource which may be

within his or her trust, or perform his or

her official duties, to secure a special

privilege, benefit, or exemption for himself,

h erself, or others. This section shall not

be construed to conflict with s. 104.31.

49. In order to establish a violation of section

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

is or was a public officer or employee; 2) Respondent used or

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

resources within his trust; 3) Respondent's actions were taken

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

a nd 4) Respondent's actions were taken corruptly.

50. Section 112.313(1) defines a " public officer " as " any

person elected or appointed to hold office in any agency

in cluding any person serving on an advisory body. "

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

and provides in pertinent part :

"Corruptly" means done with a wrongful intent

and for the purpose of obtaining, or

compensating or receiving compensation for,

any benefit resulting from some act or

omission of a public servant which i s

inconsistent with the proper performance of

his or her public duties.

52. To satisfy the statutory element that one acted

"corruptly," proof must be adduced that Respondent acted with

reasonable notice that his conduct was inconsistent with the

proper performance of his public duties and would be a violation

of the law or code of ethics. See Siplin v. Comm'n on Ethics , 59

So. 3d 150, 151 - 152 (Fla. 5th DCA 2011); Kinzer v. State Comm'n

on Ethics , 654 So. 2d 1007. 1010 (Fla. 3d DCA 1995).

53. The standard for a finding of corruption " not only

requires that the conduct complained of be done with a wrongful

intent, it also requires the Òact or omissionÓ be Òinconsistent

with the proper performance of [the officialÓs] public duties. "

Blackburn v. State, Comm'n on Ethics , 589 So. 2d 431, 436 (Fla.

1st DCA 1991).

54. In this case, it is clear that Respondent was a public

official at the time of the conduct at issue, the December 8,

2015, meeting between Respondent, Superintendent Kenworthy, and

then E. Maxwell, now Elizabeth Pigman, Respondent's current wife.

However, the evidence was simply not clear and convincing that

Respondent used his official position, to link " his effor ts to

obtain legislative funding for the Okeechobee Scho ol District t o

retaliation and/ or an attempt to retaliate against an employee of

the School District " as charged by the Commission.

55. The credible evidence demonstrates Mrs. Downing

overstepped her role as a principal at the delegation meeting by

behaving unprofessionally when she intentionally grasp ed

RespondentÓs hand and inappropriately held on to the point where

Respondent became uncomfortable, started blinking, and had to

pull away . Mrs. Downing further engaged in misconduct when she

stared Respondent down and directed an obscene gesture , flipping

a bird, at Respondent , in public while there representing the

School D istrict. It is understandable that Respondent would have

had concerns and report ed Mrs. Downing Ós inappropriate behavior

to her supervisor, Superintendent Kenworthy , as would any

concerned citizen . Being in the L egislature does not strip a

legislat or Ós right to report wrongdoings of a public employee .

56. The undersigned is also not persuaded that t he Advocate

demonstrated RespondentÓs actions meet the standard for

corrupt ion . The record is void of any evidence to show either

Representative Pigman or E lizabeth Pigman , the current wife,

tr ied to leverage their status by threaten ing , ask ing for , or

discuss ing discipline, suspen sion, termination or any other

punishment for Mrs. Downing during the December 8, 201 5 , meeting

with Superintendent Kenworthy . The record only shows that

Mrs. Downing Ós unprofessional harassing behavior was reported and

a second zone waiver was requested .

57. Additionally, no evidence proved a discussion of

voting, funding , or funding requests took place in the

December 8, 2015, meeting with Superintendent Kenworthy . The

record lacks credible evidence to show Respondent either used his

position as a State Representative or any efforts to manipulate

Superintendent Kenworthy into addressing the delegation meeting

incident with Mrs. Downing . Moreover , no reliable evidence

regarding funding is interconnected with Respondent. When the

meeting took place with Superintendent Kenworthy , t he Okeechobee

high school funding request was still pending at stage one before

the Pre - Application R eview C ommittee at the Department of

Education . Respondent does not play any role with the Pre -

Application Review Committee . Furthermore , the funding issue

never went before the L egislature since the request was deni ed at

the agency level stage for not meeting the critical need test .

58. The record also lacks competent substantial evidence

demonstrating Representative PigmanÓs words were retaliatory or

threat en ing . Although, the undersigned finds that RespondentÓs

statement that the incident will be in the " back of my m ind when

thinking about the school district " was a poor choice of words,

at most, the statement can only be perceived as nebulous because

the statement lacks any specificity.

59. The Advocate contends in its Proposed Recommended Order

that during the discovery process , i t found that Respondent or

another received the special benefit of a zone waiver being

granted ; and therefore, the third element of section

112.313(6)(c) is met . The undersigned rejects such a contention.

60. It has long been established that making r eference to a

statutory violation without supporting factual allegations does

not place Respondent on notice of the charges against him.

Trevisani v. Dep't of Health , 908 So. 2d 1108 (Fla. 1st DCA

2005); Cottrill v. Dep't of Ins. , 685 So. 2d 1371, 1372 (Fla. 1st

DCA 19 96)(reference to the statute without supporting factual

allegation insufficient to place Appellant on notice of charges

against him). Here, the Order Finding Probable Cause fails to

allege any zone waiver facts and t he discovery process is not an

adequate method to either charge a violation or place Respondent

on notice to defend himself . It is noteworthy to point out that

the undersigned already ruled on this issue during the hearing .

As such, the undersigned will neither consider nor find a

violation regarding the zone waiver since no related facts were

alleged in the Order of Finding of Probable Cause charging

document because such a ruling would be a violation of due

process .

61. Therefore , t he A dvocate failed to prove the allegations

sought to be established by clear and convincing evidence .

Accordingly, n o violation of section 112.313(6) has been

demonstrated.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of

Law, it is hereby RECOMMENDED that the Florida C ommission on

Ethics enter a final o rder and Public Report fin d ing that

Respondent, Cary Pigman , did not violate section 112.313(6) and

dismiss the case.

DONE AND ENTERED this 27th day of March, 2017 , in

Tallahassee, Leon County, Florida.

S

JUNE C. MCKINNEY

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 27th day of March, 2017 .

ENDNOTE S

1/ A request for special facilities funds starts at the Florida

Department of Education. A Pre - Application R eview C ommittee at

the Department of Education determines whether the project is of

critical need. If the Pre - Application Review C ommittee

determines the project is a critical need , then the request goes

into the Florida Department of EducationÓs budget, then before

the Legislature to ap prove the budget items as part of the state

budget.

2 / Superintendent Kenworthy did not ask for funding directly at

the Legislative Delegation meeting , but shared the district would

be applying for special facilities funding at the Department of

Educatio n , and he requested support.

3 / Mrs. DowningÓs contention that she did not make an obscene

gesture and "flip a bird" at Respondent but only had her finger

on her eyebrow is not found to be credible and is rejected. On

December 9, 2015 , meeting with Sup erintendent Kenworthy ,

Mrs. Downing admitted using her middle finger and that her

actions were wrong. She even apologized. Additionally, she

acknowledged her obscene behavior a second time in the meeting

of December 17, 2015, where Mrs. Downing informe d Superintendent

Kenworthy that she only did it one time, which is competent

evidence that Mrs. Downing used her middle finger as an obscene

gesture at Representative Pigman during the delegation meeting .

4 / Superintendent KenworthyÓs testimony is found to be credible

regarding the December 8, 2015, meeting , and his notes,

RespondentÓs Exhibit 2, persuaded the undersigned to resolv e

conflicts in his favor.

5 / Based on the candor and demeanor and RespondentÓs Exhibit 2,

S uperintendent KenworthyÓs testimony is found to be m ore credible

than Mrs. Downing .

COPIES FURNISHED:

Millie Wells Fulford, Agency Clerk

Florida Commission on Ethics

Post Office Drawer 15709

Tallahassee, Florida 32317 - 5709

(eServed)

Melody A. Hadley, Esquire

Office of the Attorney General

The Capitol, Plaza Level 01

Tallahassee, Florida 32399

(eServed)

D. Ty Jackson, Esquire

Allison Mawhinney, Esquire

GrayRobinson, P.A.

301 South Bronough Street, Suite 600

Post Office Box 11189

Tallahassee, Florida 32302 - 3189

(eServed)

Virlindia Doss, Executive Director

Florida Commission on Ethics

Post Office Drawer 15709

Tallahassee, Florida 32317 - 5709

(eServed)

C. Christopher Anderson, III, General Co unsel

Florida Commission on Ethics

Post Office Drawer 15709

Tallahassee, Florida 32317 - 5709

(eServed)

Advocates for the Commission:

Office of the Attorney General

The Capitol, 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.