18-001879EC In Re: Derryl O&Apos;Neal vs. * Status: Closed Recommended Order on Friday, November 16, 2018.

Summary: The Advocate established, by clear and convincing evidence, that Respondent, both a public officer and an employee, corruptly used his position to derive a personal benefit. He should make restitution and pay a civil penalty.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

IN RE: DERRYL O'NEAL, Case No. 18 - 1879EC

Respondent.

_______________________________/

RECOMMENDED ORDER

A final hearing was held in this matter before Robert S.

Cohen, Administrative Law J udge with the Division of

Administrative Hearings (ÐDOAHÑ), on August 10 , 201 8 , by video

teleconference at sites located in St. Petersburg and

Tallahassee, Florida.

APPEARANCES

For Advocate : Elizabeth A. Miller, Esquire

Office of the At torney General

Plaza Level 01, The Capitol

Tallahassee, Florida 32399

For Respondent: Andrew J. Salzman, Esquire

Unice Salzman Jensen, P.A.

Patriot Bank Building, Seco nd Floor

1815 Little Road

Trinity, Florida 34655

STATEMENT OF THE ISSUE

The nature of the controversy is set forth in the Order

Finding Probable Cause issued by the Commission on Ethics

(the ÐCommissionÑ) on March 9, 2018 , which specifica lly alleged

that Respondent, as f ire c hief, acting city manager , and/or

c ity m anager for the City of Madeira Beach (the ÐCityÑ or

ÐMadeira BeachÑ ) , violated s ection 112.313(6), Florida Statutes ,

by keeping or storing his Jet Ski on a City - owned Jet Ski lif t .

PRELIMINARY STATEMENT

On March 9, 2018 , the Commission issued an Order Finding

Probable Cause to believe that Respondent violated a provision of

the Code of Ethics for Public Officers and Employees. Pursuant

to section 112.3 1 3( 6 ), the Commission, on it s own motion, ordered

a public hearing and referred the complaint to DOAH on April 11,

2018 .

The case was assigned to the undersigned , who entered a

Notice of Hearing scheduling the hearing on June 22, 2018 .

However, Respondent filed a n unopposed Motion to Continue Hearing

on June 7, 2018 , which was grant ed the same day . On June 11,

2018, an Order Rescheduling Hearing by Video Teleconference was

issued setting the hearing for August 10, 2018, and the hearing

was held a s scheduled.

At the hearing, the Com missionÓs Advocate presented the

testimony of Robert Preston , the complainant ; Shane Crawford, the

former city manager of Madeira Beach; and Respondent . The

Advocate offered Exhibits 1 through 13 , which were accepted into

evidence . Respondent testified o n his own behalf , and presented

the testimony of Lt. Todd Ermscher and Steve Suranyi . Respondent

offered Exhibits 1 and 2 , which were admitted into evidence.

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

August 27, 2018 . The parties filed their P roposed R ecommended

O rder s on September 6 (the Advocate) and September 7

(Respondent), 2018, respectively , which have been duly considered

in the preparation of this Recommended Order.

References to statutes are to Florida Statutes (201 8 ) ,

unless otherwi se noted.

FINDING S OF FACT

1. At all times material to this action, Respondent served

as f ire c hief, acting c ity m anager, or c ity m anager for Madeira

Beach.

2. Respondent has been either a public officer or public

employee in the City continuously since 2011. He previously

worked for the City since 2001, except for a tw o - year period when

he worked for the City of Mineola, Florida.

3. Respondent was subject to the requirements of

chapter 112, part III , which is referred to as the Code of Ethics

for P ub lic O fficers and E mployees, for any acts or omissions

during his tenure as a public officer and public employee.

4. RespondentÓs homestead is a condominium in close

proximity to City Hall in Madeira Beach, and only 758 feet from

the C ity - owned Jet Ski lif ts.

5. Respondent has a personal vehicle, a Jeep, and has

exclusive use of a C ity - owned vehicle.

6. Respondent bought a 20 - foot long Yamaha VXR Jet Ski in

2011. Prior to moving the Jet Ski to Madeira Beach, he kept it

in Minneola, where he worked as f ir e c hief , on a lift provided by

the City of Minneola.

7. Shane Crawford was hired in January 2012 to serve as the

Madeira Beach City Manager. He held this position until his

termination in June 2017.

8. Mr. Crawford supervised Respondent when he was f ire

c hief, as well as all the C ity departments, to ensure the laws

and provisions of the City Charter were carried out and enforced.

9. Respondent developed a Jet Ski program for water

resources in Minneola and stored his Jet Ski on city property.

10. Afte r returning to Madeira Beach from Minneola,

Respondent sought to institute Ða watercraft rescue - type

program.Ñ

11. Respondent requested that the City purchase two Jet

Ski s, similar to his personal Jet Ski , to be used in the new

water rescue program.

12. Mr. Crawford testified that the City was interested in

purchasing two, not three, Jet Ski s for the program. Had they

needed three, he said, they had sufficient funds to purchase a

third.

13. The City requested and received an exemption from the

Florid a Fish and Wildlife Conservation Commission to allow Jet

Ski s to be docked on lifts in the water behind City Hall since

state rules prohibited craft with propellers or propulsion

systems from being docked in the manatee - frequented waters.

14. Shortly afte r completion of the two Jet Ski li f ts,

Respondent moved his personal Jet Ski onto one of the two

City - owned Jet Ski li f ts where it remained for two years, until

December 2017.

15. In addition to R espondentÓs Jet Ski , one of the

City - owned Jet Ski s was k ept on the lifts behind City Hall. The

other was kept on a boat trailer at the Fire Department.

Respondent testified that t he two City - owned Jet Ski s were

rotated so that one was always in an area protected from the

water and outdoor elements in order to increase the longevity of

the watercraft.

16. The two Jet Ski s were on a five - year replacement plan,

depending on their usage and condition.

17. The City - owned Jet Ski lifts are public property.

Respondent was aware of Ordinance 2016 - 04, Chapter 78,

Se ction 78 - 40, which restricts private use of public property.

18. Ordinance 2016 - 04 was adopted by the Madeira Beach

Commission on April 12, 2016, and reads, in part: ÐNo person

shall secure, tie, dock, or anchor any boat or vessel of any kind

to any publ ic property . . . except docks or boat launching

ramps , Ñ except under specified conditions, none of which are

applicable here. This ordinance was in effect for most of the

time Respondent stored his personal Jet Ski on the City - owned Jet

Ski lift.

19. This prohibition includes the CityÓs Jet Ski lifts and

prohibits an individual from using City property for personal

use. Respondent violated this ordinance by storing or docking

his personal Jet Ski on the CityÓs Jet Ski lifts.

20. Respondent was aware that ÐJohn Joe citizenÑ could not

keep his personally - owned Jet Ski on the City lift as h e did.

21. On one occasion, Respondent charged the City for fuel

for his personal Jet Ski , but the rest of the time Ðall expenses

and operational issues were furnish ed [by Respondent].Ñ

22. Respondent recommended the purchase of the two Jet Ski s

as an inexpensive way for the City to provide water rescue

operations. One was to be used in the intercoastal waterway and

the other on the Gulf side of Madeira Beach.

23. After some period of time, a decision was made not to

use a Jet Ski on the Gulf side of Madeira Beach due to the rough

conditions compared with the calmer intercoastal side.

24. Respondent attempted to justify the use of one of the

City - owned Jet Ski lift s for his personal craft so it could be

used to supervise the training of new fire fighters who would use

the Jet Ski s for water rescues.

25. Respondent made the decision to use the three Jet Ski s

for training. The c ity m anager, Mr. Crawford, allowed thi s to

happen because his philosophy was to allow his department heads,

like Respondent, to have free reign in running their departments.

Respondent believed that Mr. Crawford was aware that RespondentÓs

Jet Ski was on the lift and that one of the City - owne d Jet Ski s

was kept on the trailer by the fire department.

26. Mr. Crawford, however, testified he would never have

allowed the personal Jet Ski to be kept on the CityÓs lift

because that was Ðflat out against the ordinance.Ñ

27 . Respondent told Mr. Cr awford the City was saving money

and preserving the Jet Ski s by rotating the two City - owned craft

on and off the lift while his personal craft stayed out in the

elements at all times. Respondent said this would prolong the

life of the two Jet Ski s and hav e his ready for use in training

throughout the year.

28 . Thirteen members of the Madeira Beach Fire Department

required annual training. Respondent told Mr. Crawford the City

was saving man hours and keeping down costs through rotating the

Jet Ski s. The City could train two firefighters at a time , which

expedited the process and reduced the downtime in manpower.

29 . In theory this sounded practical, but the evidence of

the amount of use of RespondentÓs Jet Ski did not demonstrate

great cost savings.

30 . Respondent claimed the annual savings by using his Jet

Ski , along with the two City - owned craft , was $4,000 - $6,000 per

year , based upon a per - hour cost to run a Jet Ski of about $100.

The issue of him keeping his personal Jet Ski on the City - owned

lift did not become a problem prior to August 29, 2017.

31 . This became an issue after Mr. Crawford was terminated

as c ity m anager , due to a change in the composition of the

Madeira Beach Commission. Respondent became the acting c ity

m anager and agreed to rem ove his personal Jet Ski from the

City - owned lift.

32. Respondent testified that his keeping the personal Jet

Ski on the lift only became an issue after he became the acting

c ity m anager and some city residents wanted Mr. Crawford back in

the job.

33. At a meeting of the Madeira Beach Commission on

August 29, 2017, one Commissioner, Terry Lister, said he believed

RespondentÓs Jet Ski should not be kept on the City - owned lift.

The Mayor and another Commissioner did not have a problem with

him keeping t he Jet Ski on the CityÓs lift.

34. Respondent testified that he could have kept his Jet

Ski on his girlfriendÓs property at no cost, and he only kept it

on the City lift to help out with water rescue training.

35. Respondent also testified he could not k eep his Jet Ski

at his condominium free of charge. He also could not keep it

trailered there in the parking lot since that would violate the

rules of his condominium association.

36. The monthly cost to keep his Jet Ski on a trailer in

dry storage at the Madeira Beach Marina is $140. A wet slip to

store RespondentÓs 20 - foot - long Jet Ski would be $180 per month.

37. RespondentÓs Jet Ski hour meter indicated the craft was

operated only 20 hours over the course of the two years his Jet

Ski was available fo r use by the Madeira Beach Fire Department

and kept on the City - owned lift. Some of those hours were

attributable to RespondentÓs personal use, although not

quantified by Respondent, and the Jet Ski was available for his

personal use during non - working ho urs, whether he actually used

it regularly or not.

38. Respondent testified that he removed his Jet Ski from

the City list Ð[w]hen I became aware that this was going to be a

huge issue during the time when I was the acting city manager and

one of the comm issioners made a comment about it.Ñ The Jet Ski

remained on City property for four months following the City

Commission meeting where he said he would remove it to avoid any

controversy.

39. Once he removed his Jet Ski from City property,

Respondent move d it to his girlfriendÓs home in Palmetto,

Florida, in Manatee County, more than 30 miles from Madeira

Beach.

CONCLUSIONS OF LAW

40 . The Division of Administrative Hearings has

jurisdiction over the parties and the subject matter of this

proceeding pursua nt to sections 120.569 and 120.57(1), Florida

Statutes.

41. Respondent is subject to the requirements of

c hapter 112, p art III, t he Code of Ethics for Public Officers and

Employees, for his acts and omissions during his tenure with the

City of Madeira Bea ch , Florida.

42 . Section 112.322 and Florida Administrative Code

R ule 34 - 5.0015 authorize the Commission to conduct investigations

and to make public reports on complaints concerning violations of

chapter 112, part III, Florida Statutes .

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 Ó t of Transp .

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

v. Dep Ó t of HRS , 348 So. 2d 349 (Fla. 1st DCA 1977). In this

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

asserting the affirmative: that Respondent violated

s ection 112.313(6).

4 4. Commission proceedings which seek recommended penalties

against a public off icer or employee require proof of an alleged

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

Comm Ó n on Ethics , 694 So. 2d 83 (Fla. 1st DCA 1997). See a lso ,

§ 120.57(1)(j), Fl a. Stat. Therefore, the burden of establishing

by clear and convi ncing evidence the elements of a violation is

on the Commission.

4 5. 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 distin ctly remembered; the testimony must

be precise and explicit and the witnesses

must be lacking in confusion as to the facts

in issue. The evidence must be of such

weight that it produces in the mind of the

trier of fact a firm belief or conviction,

without hesitancy, as to the truth of the

allegations sought to be established.

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

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

Court of Florida also explained, however, that, a lthough the

"clear and convincing" standard requires more than a

"preponderance of the evidence," it does not require proof

"beyond and to the exclusion of a reasonable doubt." Id .

46. The Order Finding Probable Cause in this matter alleges

that ÐRespond ent, as Fire Chief, acting City Manager, and/or City

Manager of Madeira Beach violated section 112.313(6) by keeping

or storing his Jet Ski on a City - owned Jet Ski lift. Ñ

47. Respondent is charged with violating s ection

112.313(6) , which provides as follo ws:

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

h er official duties, 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.

48. The term "corruptly" is defined by s ection 112.312(9),

as follows:

"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 is

inconsistent with the proper performance of

his or her public duties.

To satisfy the statutory element that one acted Ðcorruptly,Ñ

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 Ó n on Ethics , 59 So. 3d

150, 151 - 152 (Fla. 5th DCA 2011); Kinzer v. State Comm Ó n on

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

49. To establish a violation of Section 112.313(6), the

following elements must be proved:

a. Respondent must have been a public

officer or employee;

b. Respondent must have:

i. used or attempted to use his

official position or any property or

resources within his trust, or

ii. performed his official duties;

c. Respondent's actions must have been taken

to secure a special privilege, benefit, or

exemption for himself or others;

d. Respondent must have acted corruptly,

that is, with wrongful intent and for the

purpose of benefiting himself or another

person from some act or omission which was

inconsistent with the proper performance of

public duties.

50. Respondent was a public officer in his position as

acting c ity m anager or c ity m anager and a public employee in his

position as f ire c hief. Respondent was, at all relevant times to

this matter, a Ðpublic officerÑ or an Ð employee of an agency,Ñ as

provided in sections 112.31 2(2) and 112.31 3 ( 6 ). Therefore, the

first element for a violation of section 112.313(6) was met.

51. The second element was met when Respondent used or

attempted to use his official position to store his personal Jet

Ski on the City - owned Jet Ski lift.

52. A regular citizen could not use the CityÓs Jet Ski lift

to store a personal Jet Ski . It was only because of RespondentÓs

position as acting or perma nent c ity m anager or f ire c hief that

he had access to and was able to store his personal property on

public property for two years.

53. Storing his personal Jet Ski on the City Ós ski lift

provided a special benefit and privilege for Respondent for

several reasons: 1) he did not have to pay a storage or docking

fee; 2) the Jet Ski was readily available for his personal use at

any time; and 3) he was allowed ingress and egress to an

otherwise restricted boating area or waterway.

54. A typical (non - leap - ) y ear has 8,760 hours. Two

typical years have a total of 17,520 hours. RespondentÓs Jet Ski

was utilized only 20 hours for public business (and an

u n specified amount of personal use) during the two - year period.

The remaining hours in the two - year period w ere available for

RespondentÓs personal use of the Jet Ski kept on the City - owned

lift, regardless of the frequency, or infrequency, of his desire

to use the watercraft. RespondentÓs testimony that his Jet Ski

was not equipped for rescue operations and, t herefore, only

suitable for observation of trainees on the two appropriately

equipped Jet Ski s, further supports the lack of need for his Jet

Ski being stored on public property. At RespondentÓs stated

value per hour for renting a Jet Ski to use for train ing purposes

(as an observer or trainer, not a rescuer) of $100, the maximum

value to Madeira Beach of having this Jet Ski available at all

times was $2,000. No evidence was produced to support a dollar

value for having the Jet Ski available on the CityÓs lift at all

times for training.

55. Although, there is some merit to RespondentÓs testimony

that rotating the two City - owned Jet Ski s between the lift and a

trailer in the fire station has merit, no attempt was made to

quantify the value of such rotation . Therefore, the testimony on

this point can be given little, if any , weight. In short, the

conclusion reached here is that the value of rotating the two Jet

Ski s over a two - year period is de minimus.

56. RespondentÓs claim that he gave the City a gif t by

allowing it to use his Jet Ski in training does not overcome the

fact that the minimal amount of time the craft was used for City

business was far outweighed by the benefit of having free storage

on the City - owned lift. Therefore, the third element w as met.

57. Proving the fourth element of section 112.313(6)

requires clear and convincing evidence that the public officer

acted with reasonable notice that his conduct was inconsistent

with the proper performance of his public duties and would be a

viol ation of the law or the Code of Ethics. Bl ackburn v. State

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

58. ÐDirect evidence of [wrongful] intent is often

unavailable.Ñ Shealy v. City of Albany, Ga. , 89 F.3d 804, 806

(11th Cir. 1996); see also State v. West , 262, So. 2d 457, 458

(Fla. 4th DCA 1972) (Ð[I]ntent is not usually the subject of

direct proof.Ñ).

59. Circumstantial evidence, however, may be relied upon to

prove the wrongful intent which must be shown to establish a

violation o f section 112.313(6). See U.S. v. Britton , 289 F.3d

976, 981 (7th Cir. 2002) (ÐAs direct evidence of a defendantÓs

fraudulent intent is typically unavailable, Òspecific intent to

defraud may be established by circumstantial evidence and by

inferences draw n from examining the scheme itself that

demonstrate that the scheme was reasonably calculated to deceive

persons of ordinary prudence and comprehension.ÓÑ) (Citation

omitted.) . For instance, such intent may be inferred from the

public servantÓs actions. See S wanson v. State , 713 So. 2d 1097,

1101 (Fla. 4th DCA 1998) (ÐActions manifest intent.Ñ); and K.G.D.

v. State , 391 So. 2d 327, 328 - 29 (Fla. 1st DCA 1980) (ÐAppellant

testified that he did not intend to break the window, but the

record indicates that he did willfully kick the window, and he

may be presumed to have intended the probable consequences of his

actions.Ñ) .

60. As noted in Blackburn v. State , 589 So. 2d at 434:

An essential element of the charged offense

under section 112.313(6) is the statuto ry

requirement that appellant acted with

wrongful intent, that is, that she acted with

reasonable notice that her conduct was

inconsistent with the proper performance of

her public duties and would be a violation of

the law or the code of ethics in part II I of

chapter 112.

61. The court, in Blackburn , found the actions taken by the

county commissioner only ÐincidentalÑ to her campaign and not

sufficient to support a violation of section 112.313(6). The

court, in overturning the ruling below finding a vi olation,

stated:

They have reached this conclusion without

citing to any specific provision by rule or

statute other than section 112.313(6), or

referring to any published opinion of any

Florida court or the Ethics Commission

itself, that would give fair a nd reasonable

warning that appellant's obtaining the

assistance of the county employee under the

circumstances shown in this case would be

unlawful or unethical.

62. It is interesting that Respondent drew the line for the

use of the City - owned lift for s torage of his personal Jet Ski at

not seeking reimbursement for his expenses (gas and any required

maintenance) for the use by the Fire Department of the

watercraft. He denied that these were expenses he should have

charge d to the City.

63. The credible evidence does not support RespondentÓs

claim that the Fire Department needed RespondentÓs personal Jet

Ski to conduct official business or provide services. The use of

the third Jet Ski might have some positive effect on the City by

allowing two Jet Ski s to be used at once for training of

firefighters to perform water rescues while Respondent, the

trainer, looked on. But the amount of usage over the two - year

period -- 20 hours Ï - was incidental, at most. If the amount of

training supervision provided by Resp ondent was so minimal, the

$2,000 cost to the City (20 hours at $100 per hour) to rent a Jet

Ski for this purpose is a n insignificant cost that does not

justify keeping a rarely - used, privately - owned Jet Ski o n the

City - owned lift year round. Any benefit of this arrangement was

trivial.

64. Respondent provided scant evidence that the City needed

three Jet Ski s for the small amount of water rescue training

performed by him. Further, any argument that RespondentÓs Jet

Ski enhanced the ability of the Fire D epartment to perform water

rescues is likewise not persuasive since he admitted his personal

Jet Ski was not equipped for water rescues since it did not have

the necessary sled for transporting an individual who has been

rescued. The evidence in this case failed to demonstrate that

any legitimate, non - corrupt (as that term is used in the Code of

Ethics) reasons exist for Respondent to store his personal Jet

Ski on the City - owned lift for two years.

65. The last element of proof of a violation pursuant to

section 112.313(6) was met. The fact that no one on the Madeira

Beach Commission or the city manager made an issue out of the

fact of the personal use of the City - owned lift does not pardon

RespondentÓs acts. These acts were done with wrongful intent.

66 . The Advocate has established, by clear and convincing

evidence, that Respondent, a public officer and employee,

corruptly used and/or attempted to use his position to secure a

special privilege, benefit, or exemption for himself or others by

storing his Jet Ski on City - owned property , which is inconsistent

with the proper performance of his public duties.

PENALTY

67. Section 112.317 provides penalties which may be imposed

for a violation of the Code of Ethics for Public Officers and

Employees. Section 112.317 provides, in relevant part, as

follows:

(1) Any violation of this part, including,

but not limited to, failure to file

disclosures required by this part or

violation of any standard of conduct imposed

by this part, or any violation of s. 8, Art.

I I of the State Constitution, in addition to

any criminal penalty or other civil penalty

involved, under applicable constitutional and

statutory procedures, constitutes grounds

for, and may be punished by, one or more of

the following:

* * *

(b) In t he case of an employee or a person

designated as a public officer by this part

who otherwise would be deemed to be an

employee:

1. Dismissal from employment.

2. Suspension from employment for not more

than 90 days without pay.

3. Demotion.

4. Reduction in his or her salary level.

5. Forfeiture of no more than one - third

salary per month for no more than 12 months.

6. A civil penalty not to exceed $10,000.

7. Restitution of any pecuniary benefits

received because of the violation committed.

The commiss ion may recommend that the

restitution penalty be paid to the agency by

which the public employee was employed, or of

which the officer was deemed to be an

employee, or to the General Revenue Fund.

8. Public censure and reprimand.

68. Pursuant to the ab ove - cited provisions, the undersigned

recommends a civil penalty be assessed against Respondent in the

amount of $2,000, and that restitution be made to the City for

the cost of wet storing a personal Jet Ski in the City - owned

marina for two years less the value of the use of RespondentÓs

Jet Ski for 20 hours in service to the City for water rescue

training during the two - year period at issue (since the personal

use was not quantified, it cannot be dedu cted) . The marina

charge for 24 months of wet storage, based upon the uncontested

evidence at hearing is $4,320 (24 x $180) and the value of the 20

hours of usage of the Jet Ski is $2,000 (20 hours x $100). The

net restitution owed by Respondent is $2,320. The combined

amount of the restitution and civil pe nalty is, therefore,

$4,320.

69. Respondent had a duty to avoid impropriety by avoiding

acts which place personal or private interests above pursuit of

the public interest. Here, Respondent believed the offering of

his personal Jet Ski to assist in train ing firefighters in water

rescue served a good public purpose. However, when he saw that

the value of keeping his personal Jet Ski on the City - owned lift

far exceeded the necessary use of the Jet Ski for training

purposes, he should not only have offered to pay the cost of

storage for the time the Jet Ski was not being used for training,

but insisted that he do so. As either an employee of the City or

a public official, he should not have accepted Ðfree rentÑ for

his personal watercraft. It is not german e to the discussion

that the mayor and members of the City Commission knew he was

keeping his Jet Ski on the CityÓs lift. It is germane that the

City Commission never approved his free use of the lift. It was

his duty and responsibility as a public offic ial not to take the

benefit that was not available to any regular citizen. However,

in light of his many years of service to the City and having seen

no evidence of prior ethics violations or discipline against

Respondent , I find that the restitution and civil penalty are

sufficient punishment without requiring public censure and

reprimand , as recommended by the Advocate .

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Florida Commission on Ethics

enter a final order requiring Respondent to make restitution to

the City of Madeira Beach in the amount of $2,320 , plus a civil

penalty of $2,000 for a total of $4,320.

DONE AND ENTERED this 16th day of November , 2018 , in

Tallahassee, Leon County, Flor ida.

S

ROBERT S. COHEN

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 16th day of November , 2018 .

COPIES FURNISHED:

Millie Wells Fulford, Agency Clerk

Florida Commission on Ethics

Post Office Drawer 15709

Tallahassee, Florida 32317 - 5709

(eServed)

El izabeth A. Miller, Esquire

Office of the Attorney General

Plaza Level 01, The Capitol

Tallahassee, Florida 32399

(eServed)

Andrew J. Salzman, Esquire

Unice Salzman Jensen, P.A.

Patriot Bank Building, Seco nd Floor

1815 Little Road

Trinity, Florida 34655

(eServed)

C. Christopher Anderson, III, General Counsel

Florida Commission on Ethics

Post Office Drawer 15709

Tallahassee, Florida 32317 - 5709

(eServed)

Virlindia Doss, Executive Director

Florida Commission on Ethics

Post Office Drawer 15709

Tallahas see, 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 ag ency that

will issue the Final Order in this case.