17-006215EC In Re: Joel Davis vs. * Status: Closed Recommended Order on Wednesday, March 28, 2018.

Summary: Gross indifference and reckless disregard of requirements of law constitute willful failure to file disclosure of financial interests form when afforded numerous opportunities and reminders to file.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

IN RE: JOEL DAVIS, Case No. 17 - 6215EC

Respondent.

_______________________________/

RECOMMENDED ORDER

Pursuant to notice , this case was heard in Kissimmee,

Florida, on January 25, 2018, bef ore J. D. Parrish, an

Administrative Law Judge with the Division of Administrative

Hearings (DOAH).

APPEARANCES

For Advocate : Elizabeth A. Miller, Esquire

Office of the Attorney General

Plaza Level 01 , The Capitol

Tallahassee, Florida 32399

For Respondent: Joel C. Davis, pro se

215 West Donega n Avenue

Kissimmee, Florida 34741

STATEMENT OF THE ISSUE S

Whether Joel Davis (Respondent) violated Florida law by

failing to timely file CE Form 1, Statement of Financial

Interests , for the year 2015; and, if so, what penalty should be

imposed.

PRELIMINARY STATEMENT

On October 20, 2017, the Florida Commission on Ethics (the

Commission) issued an Order Finding Probable Cause agai nst

Respondent that determined he had willfully failed or refused to

file an annual CE Form 1, Statement of Financial Interests , for

the year 2015. As a result of the finding reached by the

Commission, it ordered a public hearing be held to address

whethe r Respondent violated Florida law. On November 9, 201 7,

the case was forwarded to D OAH for formal proceedings.

At the hearing, the Advocate presented testimony from :

Respondent; Linda Jaworski, City Clerk for the City of St. Cloud;

Debra Clark, Recording Secretary for the City of St. Cloud;

Mary Jane Arrington, Osceola County Supervisor of Elections;

Nichole Bont Palmer, Office Administrator for 20/20 Media;

Kathi Jenkins - Horner, employee of 20/20 Media; Kimberly Holmes,

Program Administrator with the C ommission on Ethics; and

Robert Malone, Senior Ethics Investigator, Commission on Ethics.

Exhibits 1 through 6, 8, 10 through 12, and 14 through 21 were

admitted on behalf of the Advocate. Respondent offered

RespondentÓs Composite Exhibit 1 into evidenc e.

The Transcript of the proceedings was filed with DOAH on

February 27, 2018. Thereafter the parties had 10 days within

which to file their proposed recommended orders. The Advocate

timely filed a proposed order that has been fully considered.

Respon dent did not file a proposal.

FINDING S OF FACT

The Parties

1. The Commission is the state entity charged with the

responsibility of administering, maintaining records, reviewing

complaints, and disciplining violations of Florida law pertaining

to Articl e II, Section 8, Florida Constitution.

2. On or about October 26, 2015, Respondent filed a

Committee Application Form with the City of St. Cloud seeking to

be appointed to the Community Redevelopment Agency (CRA). In

executing the application , Respondent acknowledged that he

understood the responsibilities associated with being a CRA

member and that he had adequate time to serve. Subsequently,

Respondent was appointed to the CRA and has served continuously

through the date of hearing .

3. In conjunctio n with his appointment to the CRA ,

Respondent timely filed a CE Form 1 , Statement of Financial

Interests , for the year 2014. By so filing , Respondent

demonstrated that he understood filing a Statement of Financial

Interests was required by law in order fo r him to serve on the

CRA.

4. Respondent was subject to the requirements of Florida

law pertaining to the disclosure of financial interests as set

forth in Article II, Section 8, Florida Constitution.

The Form

5. CE Form 1 requires the disclosure of primary and

secondary sources of income, real property owned, intangibles

owned, and business interests of the party required to file. The

public then has access to information so that conflicts in

interests are known and fully disclosed. The form deter s

corruption and increases public confidence in government.

6. In RespondentÓs case he was required to return the

comple ted form to the County Supervis o r of Elections for Osceola

County, Florida.

7. For the calendar year 2015, Respondent was required t o

file the completed form no later than July 1, 2016.

The Issue

8. For all officials or board members required to file the

CE Form 1 , the Clerk for the City of St. Cloud keeps a record to

make sure the forms are t imely filed. Debra Clark, the R ecording

S ecretary for the City Clerk, personally contacted Respondent and

persons at his office (20/20 Media) to remind Respondent to file

the requisite form.

9. On or about June 23, 2016, Ms. Clark e - mail ed Respondent

at his address of record to remind him to return the completed

form to the Supervisor of Elections. Respondent acknowledged

contacts were made to his office and to him personally to remind

him that the form was due July 1 , 2016 .

10. On July 8, 2016, Ms. Clark again e - mailed Respondent to

noti fy him that he had not timely filed the CE Form 1 and further

advised that he could be subject to a penalty of $25.00 per day

should he not file. Again, Respondent understood he was required

to file the form, did not timely file the form, and did not fil e

after being contacted twice (via e - mail ) by Ms. Clark.

11. On the morning of July 15, 2016, Ms. Clark spoke with

Respondent by telephone and reminded him that the form was

required by law and was past due to be filed. An e - mail followed

the conversati on and Ms. Clark memorialized the telephone

conversation to advise Respondent that he could be subject to a

penalty in the amount of $1 , 500 if he continued to withhold

filing.

12. Despite written notices to Respondent personally and

communications to hi s office personnel, who attempted to get the

form completed and filed, Respondent did not file the CE Form 1.

13. On Augus t 10, 2016, Ms. Clark sent an e - mail to

Nichole Bont Palmer, the O ffice A dministrator for RespondentÓs

company , 20/20 Media, and sta ted in part:

I have assisted you with this matter several

times and have documented m y efforts. As you

know, these forms were due on July 1, and you

were informed of the $25.00 per day penalty

for failure to file, assessed by the State of

Florida.

14. Despite the unambiguous direction provided to

Respondent and his staff at 20/20 Media, the CE Form 1 was not

filed.

15. As a courtesy , the Commission on Ethics provided the

form to Respondent again on September 1, 2016. As of October 31,

2016, Respond ent had not filed the form.

16. Subsequently, the maximum fine was imposed on

Respondent and he was given until May 15, 2017, to submit the

payment of $1,500.

17. At its meeting on June 9, 2017, the Commission on

Ethics entered a Default Final Order that made the following

findings:

1. Mr. Joel Davis, St. Cloud, Community

Redevelopment Agency, was on the list of

persons required to file a Statement of

Financial Interests for the year 2015.

2. Pursuant to Section 112.3145(7)(f),

Florida Statutes, Mr . Joel Davis was mailed a

copy of the 2015 CE Form 1 no later than

June 1, 2016, and was mailed a delinquency

notice by certified mail no later than

July 31, 2016. Additional attempts to

contact Mr. Joel Davis were also made by

Commission staff.

3. Ho wever, Mr. Joel Davis did not file a

2015 CE Form 1 by the designated due date.

Mr. Joel Davis was sent a notice of payment

due advising of the statutory rights to

appeal or dispute the automatic fine in a

hearing before the Commission if such appeal

was received within 30 days of the notice of

payment due. No timely appeal was received

from Mr. Joel Davis.

4. More than 60 days have elapsed since the

notice of payment due was transmitted without

Mr. Joel Davis paying the fine.

5. On its own motion, t he Commission voted

to affirm a fine in the amount of $1500 has

accrued in this matter.

18. All of the findings reached by the Commission were

accurate. During the course of the investigation of this case

and prior thereto, Respondent was afforded eve ry opportunity to

submit the CE Form 1 for the year 2015.

19. After the investigation was completed, the Advocate

recommended that probable cause be found in this matter.

CONCLUSIONS OF LAW

20 . DOAH has jurisdiction over the parties to and the

subjec t matter of this proceeding. § 120.57(1), Fla. Stat.

(2017).

21. The Commission is authorized to conduct investigations

and to make public reports on complaints concerning violations of

law pertaining to ethics for public officers and employees. See

§ 1 12.322, Fla. Stat. (2017).

22. Section 112.3145(8)(c), Florida Statutes (2017) ,

provides:

(c) If a person holding public office or

public employment fails or refuses to file an

annual statement of financial interests for

any year in which the person rece ived notice

from the commission regarding the failure to

file and has accrued the maximum automatic

fine authorized under this section,

regardless of whether the fine imposed was

paid or collected, the commission shall

initiate an investigation and conduct a

public hearing without receipt of a complaint

to determine whether the personÓs failure to

file is willful. Such investigation and

hearing must be conducted in accordance with

s. 112.324 . Except as provided in

s. 112.32 4 (4 ), if the commission determines

that the person willfully failed to file a

statement of financial interests, the

commission shall enter an order recommending

that the officer or employee be removed from

his or her public office or public

employment.

2 3. In this case, the Commission, through the Advocate,

bears the burden of proof to establish by clear and convincing

evidence Respondent violated Florida law. See Latham v. Fla .

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

24. Article II, Sec tion 8, Florida Constitution, requires

public officers or employees holding certain offices to file full

and public disclosure of their financial interests. Public

service in Florida is a public trust requiring those who hold

positions of trust to conform to the requirements of the law. In

this case, Respondent, as a member of the CRA, was required to

file the disclosure.

25. Respondent failed or refused to timely file a CE Form 1 ,

Statement of Financial Interests, for the year 2015.

26. Respondent wa s given notice of his failure to timely

file the required disclosure and continued to fail to file the

document. RespondentÓs claim that his failure was not ÐwillfulÑ

is without merit. Respondent could have easily hand - delivered,

mailed, or had an employ e e mail or hand - deliver the form to the

Supervisor of Elections. He did not.

27. The maximum fine accrued regarding RespondentÓs failure

to file and still he did not file the form.

28. Despite being given every opportunity to file the form

(timely an d untimely), despite being reminded by the City C lerkÓs

employee, his own employees, and the CommissionÓs staff,

Respondent did not file the form. Such gross indifference and

reckless disregard to the requirements of the law constitutes

willful behavior. RespondentÓs assertion that he intended to

file the form is not valid. Further, Respondent had no valid

excuse to justify his failure to file the form.

29. In this case, the Commission, through the Advocate, has

established by clear and convincing evi dence that Respondent did

not file the CE Form 1 as required by law and that his behavior

was willful.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Commission enter a f inal Order

and p ublic r epor t : determining Respondent violated Article II,

Section 8, Florida Constitution; finding that Respondent

willfully failed to file the Statement of F inan cial Interests in

violation of s ection 112.3145, Florida Statutes (2017) ; and

recommending that Responde nt be removed from his public position

with the CRA.

DONE AND ENTERED this this 28th day of March, 2018 , in

Tallahassee, Leon County, Florida.

S

J. D. PARRISH

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 28th day of March , 2018 .

COPIES FURNISHED:

M illie Wells Fulford, Agency Clerk

Florida Commission on Ethics

Post Office Drawer 15709

Tallahassee, Florida 32317 - 5709

(eServed)

Elizabeth A. Miller, Esquire

Office of the Attorney General

Plaza Level 01, The Capitol

Tallahassee, Florida 32399

(eServed )

Joel Davis

215 West Donegan Avenue

Kissimmee, Florida 34741

Virlindia Doss, Executive Director

Florida Commission on Ethics

Post Office Drawer 15709

Tallahassee, Florida 32317 - 5709

(eServed)

C. Christopher Anderson, III, General Counsel

Florida Co mmission 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 pa rties 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.