19-000031EC In Re: David Stewart vs. * Status: Closed Recommended Order on Monday, December 16, 2019.

Summary: The Commission did not prove, by clear and convincing evidence, that Respondent engaged in solicitation or acceptance of gifts in violation of section 112.313(2), or misuse of public position in violation of section 112.313(6).

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

IN RE: DAVID STEWART, Case No. 19 - 0031EC

Respondent.

_______________________________/

RECOMMENDED ORDER

A final hearing was held in this proceeding before Cathy M.

Sellers, an Administrati ve Law Judge ("ALJ") with the Division of

Administrative Hearings ("DOAH") , on September 24, 2019, in West

Palm Beach, Florida.

APPEARANCES

For Advocate : Melody A. Hadley, Esquire

Elizabeth A. Miller, Esquire

Office of the Attorney General

The Capitol, Plaza Level 01

Tallahassee, Florida 32399 — 1050

For Respondent: Brennan Donnelly, Esquire

Mark Herron, Esquire

Messer Caparello, P.A.

2618 Centennial Place

Post Office Box 15579

Tallahassee, Florida 32317

STATEMENT OF THE ISSUE S

The issues to be determined in this proceeding are:

(1) Whether Respondent violated section 112.313(2), Florida

Statu tes (2015) , 1 / by soliciting something of value to him based

upon an understanding that his vote, offici a l action , or judgment

would be influenced thereby; and (2) whether Respondent violated

section 112.313(6) by corruptly using or attempting to use his

o fficial position to secure a special privilege or benefit for

himself.

PRELIMINARY STATEMENT

On January 3, 2018, Catherine Phillips Padilla 2 /

("Complainant") filed a c omplaint with the Florida Commission on

Ethics ("Commission") , alleging that Responden t David Stewart,

the Mayor of the Town of Lantana, had solicited sex from her in

exchange for ensuring approval, by the Town Council of the Town

of Lantana, of the installation of speed bumps in her

neighborhood. 3 /

Following an investigation, o n Octo ber 24, 2018, the

Commission issued an Order Finding Probable Cause to believe that

Respondent violated section 112.313(2) by soliciting something of

value from a constituent with the understanding that his vote,

official action, or judgment would be influ enced ; and violated

section 112.313(6) by using or attempting to use his official

position to secure a benefit for himself. On January 4, 2019,

the matter was referred to DOAH for assignment of an ALJ to

conduct a hearing.

The final hearing initially was scheduled for March 14

and 15, 2019, but at the parties' request, was continued to

May 13 and 14, 2019; July 9 and 10, 2019; and September 24

and 25, 2019. The final hearing was held on September 24, 2019.

The Commission presented the testimony of Compl ainant and

Deborah Manzo in its case — in — chief, and presented the testimony

of Kathleen Mann in its rebuttal case. Joint Exhibit A, the

redacted transcript of the deposition of David Brinkley, was

admitted pursuant to the parties' stipulation . The Commiss ion

tendered Commission's Exhibit 5, the Town of Lantana Ethics

Ordinance, and Commission's Exhibit 6, the Palm Beach County Code

of Ethics , for admission into evidence ; b oth exhibits were

excluded as not relevant to the charged violations of

chapter 112 . 4 / Respon dent presented the testimony of Mary

Lacorraza and Catherine Clark, and testified on his own behalf .

R espondent's Exhibits 1 and 2 were admitted into evidence over

objection.

The one — volume Transcript was filed at DOAH on October 17,

2019. The parties ' proposed recommended orders were timely filed

at DOAH on November 18, 2019, and have been duly considered in

preparing this Recommended Order.

FINDING S OF FACT

The Parties

1. The Commission is created by section s 112.320 and

112.321, and author ized by Article II, section 8 , of the Florida

Constitution to conduct investigations and make public reports on

all complaints concerning breach of public trust by specified

public officers, including elected local government officials.

See § 112.313(1), Fla. Stat.

2 . Respondent currently serves as the Mayor of the Town of

Lantana, Florida . He has served in that position for 19 years,

and he occupied that position at the time of the alleged

violations of chapter 112 giving rise to this proceeding.

E vidence Adduced at the Final Hearing

3. Complainant is a resident of the Town of Lantana,

Florida.

4 . For an extended period of time , up to and including

August 2015, Complainant was actively involved in attempting to

obtain approval , by the Lantana Town C ouncil ("Council") , for the

installation of traffic — calming speed bumps in her residential

neighborhood. Specifically, she spearheaded neighborhood efforts

to obtain approval of the speed bumps, gather ed signatures in a

petition drive to present to the town council requesting approval

of the speed bumps, and communicated with town staff regarding

the process and requirements for obtaining such approval.

5. On August 10, 2015, the Council voted to approve the

installation of speed bumps in Complain ant's n eighborhood.

6. On January 3, 2018, Complainant filed Complaint

No. 18 — 001 ( the "Complaint") with the Commission, alleging that

Respondent had, on more than one occasion, solicited sex from her

in exchange for ensuring Council approval of the spe ed bumps in

her neighborhood.

7. At the final hearing, Complainant testified that in June

or July 2015 —— before the August 10, 2015, Council meeting at

which the speed bumps item would be considered —— Respondent asked

her to lunch and picked her up in his vehicle. According to

Complainant, t hey went to Flanigan's restaurant , where they had

lunch. Complainant testified that during lunch, Respondent told

her that if she had sex with him, he would ensure that the speed

bumps for her neighborhood were approve d . Complainant testified

that she refused to have sex with him, but that after lunch,

Respondent drove them to the Dutchman M otel , 5 / got out of the

vehicle , and walked toward the motel. Complainant testified that

sh e stayed in the vehicle , honked the hor n , and signaled "no";

that Respondent returned to the vehicle ; and that they drove

away.

8. Complainant also testified that on August 10, 2015,

before the Town Council meeting at which the speed bumps would be

considered, Respondent called her and aske d if she had changed

her mind, telling her that it was not too late to go to the

motel, have sex, and "get [your] speed bumps." Complainant

testified that she told him "no thanks, I'll take my chances."

9. As noted above, on August 10, 2015, the Counc il approved

the installation of speed bumps in Complainant's neighborhood.

The vote to approve the speed bumps was unanimous, with

Respondent voting in favor.

10 . Complainant testified that on August 11, 2015 ,

Respondent called her and asked if she wa s going to thank him for

getting the speed bumps, to which she responded "well, I did it

myself." Complainant testified that Respondent said "fine, then

I'm going to yank those speed bumps right out of there."

1 1 . The speed bumps have not been removed f rom

Complainant's neighborhood, and Complainant is unaware of any

effort on Respondent's part to have the m removed.

1 2 . Complainant testified at the final hearing that she

told two persons, Kem Mason and David Brinkley , that Respondent

had solicited se x from her in exchange for ensuring approval of

the speed bumps in her neighborhood.

1 3 . Specifically, she testified that she told Mason about

Respondent's alleged solicitation of sex at some point after the

speed bumps had b een approved, while they we re both at an

election polling place. However, she subsequently testified that

she had told him about Respondent's alleged solicitation when she

saw him (Mason) at Publix.

1 4 . Brinkley was Complainant 's neighbor , and they had

worked together, along wi th other residents of their

neighborhood , to obtain Council approval of the speed bumps.

15 . Complainant testified that she told Brinkley about

Respondent's solicitation of sex from her in exchange for

ensuring approval of the speed bumps while they we re at

Brinkley's house on August 10, 2015 , before the Council vote on

the speed bumps scheduled for later that day .

1 6 . However, Brinkley credibly testified in his deposition 6 /

that Complainant told him about Respondent's alleged solicitation

of sex from her a substantial amount of time —— Brinkley

characterized it as " probably a year or two" —— after the Council's

approval of the speed bumps . Brinkley testified that Complainant told him about the matter because she wanted him to know that it

would be the su bject of forthcoming news media coverage.

1 7 . Complainant also testified that she did not have lunch

with Respondent and her neighbor, Mary Lacorazza , after

Respondent solicit ed sex from her .

18. However, Lacorazza credibly testified that , at

Compl ainant's persistent urging, 7 / she and Complainant had lunch

with Respondent at Applebee's in October 2015 for the purpose of

celebrat ing the approval of speed bumps in their neighborhood . 8 /

Lacorazza testified , credibly, that during the lunch, Complainant

behaved in a "completely friendly " manner toward Respondent . 9 /

19 . Respondent denied ever having solicited sex from

Complainant in exchange for ensuring Council approval of the

speed bumps ; ever having gone to a motel with her ; or ever

threaten ing to ha ve the speed bumps in her neighborhood removed.

20 . Respondent has known Complainant for several years , and

at the final hearing, both Respondent and Complainant

characteriz ed their relationship as a friendship. The evidence

establishes that they work ed together on town projects; attended

Kiwanis meetings and worked on Kiwanis projects together , before

and after August 10, 2015 ; and communicated with each other

through phone calls and text messages , before and after August

10, 2015 . At one point, t hey had a pedicure , followed by lunch ,

together . Additionally, Respondent rented a van for Complainant

to visit her son for the Thanksgiving holiday in 2014 , and , at

some point, Respondent loaned Complainant money . 1 0 /

2 1 . Respondent denied ever having date d , or h aving a

romantic relationship with , Complainant.

2 2 . Respondent confirmed Lacorazza 's testimony tha t he had

had lunch with Complainant and Lacorazza in late 2015 , after the

Council's approval of the in stallation of speed bumps in their

neighborhoo d. Respondent testified that at the lunch,

Complainant's attitude toward him was "fine" and "nothing out of

the ordinary."

2 3 . The Commission's investigator, Kathleen Mann, testified

that during her interview of Respondent conducted during the

Commis sion's investigation into the Complaint, Respondent told

her that he did have lunch with Complainant and Lacorazza , but

that he denied having had lunch with Complainant alone , or at

Flanigan's restaurant.

2 4 . When questioned at the final hearing regardi ng whether ,

at some time, he had lunch alone with Complainant , Respondent

testified that he did not recall . He elaborated that he goes on

numerous lunches with town residents, acquaintances, and

neighbors , and that "to try to remember every lunch I've gon e to

is very hard unless it's memorable." He conceded that "it's very

possible. I truthfully don't remember 100 percent; but if she

says it happened, it's very possible it happened."

2 5 . Respondent acknowledged that he is subject to the State

of Flor ida Code of Ethics ("State Ethics Code") ; that he annually

receives training on the State Ethics Code ; and that he had

received such training by the time the charged violations are

alleged to have occurred, in 2015. 1 1 /

2 6 . Respondent acknowledged that if an elected official

solicited sex in exchange for his or her vote, such conduct would

constitute misuse of his or her position. To that point, he

testified "[i]f you're asking for something in exchange of [sic]

a vote, that's something you don't do; et hics 101."

Findings of Ultimate Fact

2 7 . Based on the foregoing, the undersigned determines, as

a matter of ultimate fact, that the Commission did not prove, by

clear and convincing evidence, that Respondent violated section

112.313(2) by solici ting something of value from a constituent

with the understanding that his vote, official action, or

judgment would be influenced , as charged in the Order Finding

Probable Cause issued by the Commission on October 24, 2018 . 1 2 /

2 8 . Additionally, based on the foregoing, the undersigned

determines, as a matter of ultimate fact, that the Commission did

not prove, by clear and convincing evidence, that Respondent

violated section 112.313( 6 ) by using or attempting to use his

position to secure a benefit for hi mself, as charged in the Order

Finding Probable Cause issued by the Commission on October 24,

2018. 1 3 /

2 9 . Complainant's testimony is the only direct evidence in

this proceeding offered to show that Respondent solicited sex

from her in exchange for ensur ing Council approval of speed bumps

in her neighborhood and subsequently threatened to have them

remove d . As discussed above, Respondent denied having ever

engaged in such conduct. There was no other direct evidence,

consisting of other witness testimony , electronic mail or text

messages, documents, or other evidence, presented at the final

hearing to show that Respondent committed the conduct charged in

this proceeding. 1 4 /

30 . The credibility and veracity of Complainant's testimony

at the final hearing was substantially undercut by the credible

testimony of Lacorazza and Brinkley.

3 1 . Lacorazza was a very credible witness. She is

Complainant's neighbor with whom Complainant had worked on

obtaining approval of the speed bumps, and she had no

demonstr ated motive to be untruthful regarding any aspect of the

matters at issue in this proceeding . She testified clearly ,

firmly, and without hesita tion , that she and Complainant had

lunch with Respondent to celebrate the approval of the speed

bumps in her and Complainant's neighborhood. She recalled that

they had gone to lunch at Complainant's persistent urging, and

that they had done so in or about October 2015, toward the end of

turtle nesting season. She readily recalled that they ha d gone

to Applebee's r estaurant and sat at a horseshoe — shaped booth ,

that Complainant sat across the table from Respondent , and that

Complain an t was friendly to Respondent during the lunch .

3 2 . Lacorazza 's credible testimony directly contradicts,

and , t hus , undercuts the cr edibility of , Complainant's testimony

that she did not have lunch with Respondent after the Council

approv ed the speed bumps. Further , Lacorazza 's testimony

establishes that C omplainant engaged in behavior that is

inconsistent with —— and, thus, casts doubt on —— her claim that

Respondent solicited sex from her in exchange for ensuring

Council approval of speed bumps in her neighborhood.

3 3 . Brinkley's testimony also directly contradicts

Complainant's testimony . As discussed above, Complainant

testified at the final hearing that she had told Brinkley on

August 10, 2015 —— the day of the Council's vote on the speed

bumps —— that Respondent had solicited sex from her in exchange for

ensuring approval of the speed bumps. However, Brinkley credibly testified tha t Complainant did not tell him about Respondent 's

alleged solicitation until sometime much later

1 5 / —— and that she

had done so at that time specifically to let him know of

forthcoming media coverage regarding her allegations against

Respondent .

3 4 . Brin kley was Complainant 's neighbor , and he worked with

her on the speed bumps approval effort . He had no demonstrated

motive to be untruthful regarding the timeframe when Complainant

told him that Respondent solicited her for sex in exchange for

ensuring app roval of the speed bumps . Brinkley's credible

testimony directly contradicts Complainant's statement that she

told him of Respondent's alleged solicitation very close in time

to its alleged occurrence, and, thus, casts substantial doubt on

the credibility and veracity of Complainant's testimony in this

proceeding.

3 5 . Additionally, Complainant's own tes timony at the final

hearing regarding having told Kem Mason about Respondent's

alleged solicitation was inconsistent. As discussed above,

Complainant first testified that she told Mason at an election

polling place, but later testified that she had told him at

Publix. Although this inconsistency concerns a relatively minor

point, it nonetheless undercuts her credibility as a witness, and

it certainly c ontributes to her testimony fall ing short of the

clarity, precision, and lack of confusion required to meet the

clear and convincing evidentiary standard . 1 6 /

3 6 . The undersigned found credible Respondent's testimony

that he did not solicit sex from Compl ainant in exchange for

ensuring approval of the speed bumps in her neighborhood and that

he did not threaten to have them removed .

3 7 . Although Respondent told Mann , during the Commission

investigation , that he had never had lunch alone with

Complainant , he plausibly explained at the final hearing that he

could not specifically recall that lunch because he has many

lunches with many people, making it difficult for him to recall

each of those lunches. Additionally , he acknowledged that he

"probably did" have lunch alone wi th Complainant at some point.

The undersigned finds Respondent's testimony on this point

credible.

3 8 . Fur thermore, in any event, Respondent's acknowledgment

that he had ( or "probably " had ) lunch alone wit h Complainant does

not est ablish that he solicited sex from her in exchange for

ensuring approval of speed bumps for her neighborhood.

3 9 . For these reasons , the undersigned determines , as a

matter of ultimate fact, that the Commission did not establish,

by clear and convinc i n g evidence , that Respondent violated

sections 112.313(2) or 112.313(6) , as charged in the Order

Finding Probable Cause.

CONCLUSIONS OF LAW

40 . DOAH has jurisdiction over the subject matter of, and

parties to, this proceeding.

4 1 . The Commission has juris diction to receive complaints

alleging violations of chapter 112, part III, and to investigate

those complaints; to make findings and issue a report as to

whether a public official has violated any provision of

chapter 112, part III; and to reco mmend an a ppropriate penalty,

as provided in section 112.317.

4 2 . Respondent has been charged with violating sections

112.313(2) and 112.313(6).

43 . The Commission bears the burd en of proof in this

proceeding to establish that Respondent committed the violations

of chapter 112 charged in the Order Finding Probable Cause . See

Balino v. Dep't of Health and Rehab. Servs. , 348 So. 2d 349 , 350

(Fla. 1st DCA 1977)( the general rule is that, absent a contrary

statutory directive, the burden of proof is on the party

asser ting the affirmative of the issue).

4 4 . Because the Commission proposes to take penal action

against Respondent, it must demonstrate, by clear and convincing

evidence, that Respondent committed the charged violations of

chapter 112 . Latham v. Fla. Comm' n on Ethics , 694 So. 2d 83, 86

(Fla. 1st DCA 1997). The Florida Supreme Court has described the

clear and convincing evidentiary standard as follows:

Clear and convincing evidence requires that

the evidence must be found to be credible;

the facts to whic h the witnesses testify must

be distinctly remembered; the testimony must

be precise and explicit and the witnesses

must be lacking in confusion as to the facts

in issue. The evidence must be of such

weight that it produces in the mind of the

trier of fac t a firm belief or conviction,

without hesitancy, as to the truth of the

allegations sought to be established.

In re Davey , 645 So. 2d 398, 404 (Fla. 1994 ).

This standard of proof is intermediate, and is "more than a

'preponderance of the evidence,' but . . . need not be 'beyond

and to the exclusion of a reasonable doubt.'" Id. , quoting In re

LaMotte , 341 So. 2d 513, 516 (Fla. 1977).

Charged Violation of Section 112.313(2)

4 5 . Section 112.313(2) states:

( 2) SOLICITATION OR ACCEPTANCE OF GIFTS.

No public officer, employee of an agency,

local government attorney, or candidate for

nomination or election shall solicit or

accept anything of value to the recipient,

including a gift, loan, reward, promise of

futu re employment, favor, or service, based

upon any understanding that the vote,

official action, or judgment of the public

officer, employee, local government attorney,

or candidate would be influenced thereby.

4 6 . To demonstrate a violation of this statu te, the

following elements must be established: ( a ) the respondent must

be either a public officer, a public employee, or a candidate for

nomination or election for such position; (b) the respondent

must have solicited or accepted something of value to h im or her,

including a gift, loan, reward, promise of future employment,

favor, or service; and (c) such solicitation or acceptance must

have been based on an understanding that the respondent's vote,

official action, or judgment would be influenced thereb y.

4 7 . The term "s olicit " is defined as "to make petition to,

to approach with a request or plea; to urge (something, such as

one's cause) strongly; to entice or lure especially into evil; to

proposition (someone) especially as or in the character of a

p rostitute; to try to obtain by usually urgent requests or

pleas. " "Solicit," Merriam — Webster D ictionary , http://merriam —

webster.com/dictionary/solicit (last visited December 9, 2019) .

4 8 . Respondent is the Mayor of the Town of Lantana , and

therefore is a public officer . Accordingly, the first element of

the charged violation of section 112.313(2) is met.

4 9 . However, for the reasons discussed above, the evidence

does not clearly and convincingly establish that Respondent

solicited sex from Complainan t in exchange for ensuring approval

of speed bumps in her neighborhood. Accordingly, it is concluded

that the C ommission failed to prov e, by clear and convincing

evidence, that Respondent solicit ed or accept ed something of

value to him self , including a gi ft, loan, reward, promise of

future employment, favor, or service ; or that he solicit ed or

accept ed something of value to himself based on an understanding

that his vote, official action, or judgment would be influenced

thereby .

50 . Therefore, it is conc luded that Respondent did not

violate section 112.313(2), as charged in the Order Finding

Probable Cause.

Charged Violation of Section 112.313(6)

5 1 . Section 112.313(6) states :

(6) MISUSE OF PUBLIC POSITION.

No public officer, employee of an agency, or

local government attorney shall corruptly use

or attempt to use his or her official

position or any property or resource which

may be within his or her trust, or perform

his or her official duties, to secure a

special privilege, benefit, or exemption f or

himself, herself, or others. This section

shall not be construed to conflict with s.

104.31.

5 2 . To demonstrate a violation of this statute, the

following elements must be established: (a) the respondent must

be a public officer, employee of an a gency, or local government

attorney; (b) the respondent must have used or attempted to use

his or her official position or any property or resources within

his or her trust or performed his or her official duties; (c)

the respondent's actions must have b een taken to secure a special

privilege, benefit , or exemption for himself or herself or

others ; and (d) the respondent must have acted corruptly , as

that term is defined in section 112.312(9) .

5 3 . The term "corruptly" is defined in section 112. 312(9)

as follows: " '[c] orruptly ' 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

perfo rmance of his or her public duties. "

5 4 . As stated above, Respondent is the Mayor of the Town of

Lantana, and therefore is a public officer. Accordingly , the

first element of the charged violation of section 112.313(6) is

met.

5 5 . However, as discusse d above, the evidence does not

clearly and convincingly establish that Respondent solicited sex

from Complainant in exchange for ensuring approval of speed bumps

in her neighborhood. Therefore , it is concluded that the

Commission failed to prove, by clear and convincing evidence,

that Respondent used or attempted to use his official position or

any property or resources within his trust or performed his

official duties to secure a special privilege, benefit, or

exemption for himself, or that he acted corru ptly , as defined

section 112.312(9).

56 . Accordingly , it is concluded that Respondent did not

violate section 112.313(6), as charged in the Order Finding

Probable Cause.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, i t is hereby RECOMMENDED that the Florida Commission on

Ethics enter a final order and p ublic r eport finding that

Respondent did not violate sections 112.313(2) or 112.313(6), and

dismissing the charges against Respondent.

DONE AND ENTERED this 16 th day o f December, 2019, in

Tallahassee, Leon County, Florida.

CATHY M. SELLERS

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 48 8 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 16 th day of December, 2019 .

ENDNOTE S

1/ The violations of chapter 112 at issue in this proceeding are

alleged to have occurred i n 2015. Accordingly, the 2015 version

of chapter 112, Florida Statutes, applies to this proceeding.

Childers v. Dep't of Envtl. Prot. , 696 So. 2d 962, 964 (Fla. 1st

DCA 1997)(the version of a statute in effect at the time of the alleged conduct giving ri se to a disciplinary action controls).

2/ At the final hearing, Complainant Catherine Phillips Padilla

was variously referred to as "Phillips," "Phillips Padilla," and

"Padilla." For consistency and brevity, she is referred to as

"Complainant" in this Recommended Order.

3/ On January 16, 2018, Complainant filed an amendment to the

Complaint, alleging that when Respondent learned that she had

filed a complaint against him with the Commission, he went to her

residence to confront her , and tried to gain entry to her home.

4/ The Commission proffered Exhibits 5 and 6 to preserve its

tender for appeal.

5/ n, whether Complainant previously had been asked, in depositio

the motel had a sign , and had responded that she did not recall a

sign. At the final hearing, she testified that she recently had

recalled the name of the motel.

6 / As noted in the Preliminary Statement, the parties stipulated

to the admission into evidence of Brinkley's deposition, portions

of which were redacted, and, therefore, not able to be read or

considered in this proceeding. Deposition testimony is hearsay

because it is a statement, other than one made by the declarant

while testifying at the trial or hearing, offered in evidence to

prove the truth of the matter asserted. § 9 0.801(1)(c), Fla.

Stat.; W.M. v. Dep't of Health and Rehab. Servs. , 553 So. 2d 274,

276 (Fla. 1st DCA 1989). Hearsay is admissible in administrative

proceedings; however, it is not sufficient in itself to support a

finding of fact unless the hearsay would be admissible over

Admin Code R. 18 — 106.213. Under Florida law, deposition testimony

qualifies for admission as an exception to the hearsay

exclusionary rule —— and, thus, is sufficient in itself to support

findings of fact in administrative proceedings —— if it falls in one

of the categories set forth in Florida Rule of Civil Procedure

1.330(a)(3). Bank of Montreal v. Estate of Antoine , 86 So. 3 d

1262, 1264 (Fla. 4th DCA 2012); Dinter v. Bre wer , 420 So. 2d 932,

934 (Fla. 3d DCA 1982).

Rule 1.330(a)(3) provides, in pertinent part:

The deposition of a witness, whether or not a

party, may be used by any party for any

purpose if the court finds: . . . (B) that

the witness is at a greate r distance than 100

miles from the place of trial or hearing, or

is out of state, unless it appears that the

absence of the witness was procured by the

party offering the deposition[.]

Here, the record reflects that Brinkley had moved to

California for h is employment . Thus, he was out of state at the

time of the final hearing and his absence was not procured by

either party to this proceeding. Accordingly, Brinkley's

deposition testimony satisfies the requirements of rule

1.130(a)(3)(B), and, therefore , constitutes competent substantial

evidence in itself on which findings of fact may be based.

7 / Lacorazza characterized Complainant's repeated suggestion s

regarding having lunch with Respondent as "harping."

8 / Lacorazza was clear about the timefra me of her lunch with

Complainant and Respondent because it took place near the end of

turtle nesting season, during October, while she was very busy

with nest monitoring activities.

9 / Lacorazza testified that sometime after their lunch with

Respondent , Complainant texted and called her, calling Respondent

an " asshole" because he purportedly was teasing her (Complainant)

about something . Lacorazza did not specifically recall the matter

about which Respondent purportedly teased Complainant . Under any

cir cumstances, this evidence does not prove that Complainant was

angry with Respondent because he had solicited sex from her in

exchange for ensuring approval of the speed bumps.

10 / The evidence does not establish when Respondent loaned

Complainant money. The evidence establishes that Complainant

repaid Respondent for the monetary loan and the van rental.

11 / Respondent also acknowledged that he was subject to, and

familiar with, the Palm Beach County Code of Ethics and the Town

of Lantana Ethics Ordinan ce.

1 2 / The question of whether the facts, as found in a recommended

order, constitute a violation of statute or rule is a question of

ultimate fact. Goin v. Comm'n on Ethics , 658 So. 2d 1131, 1138

(Fla. 1st DCA 1995); Langston v. Jamerson , 653 So. 2d 489, 491

(Fla. 1st DCA 1995).

1 3 / Goin , 658 So. 2d at 1138; Langston , 653 So. 2d at 491.

14 / Direct evidence is evidence based on personal knowledge or

observation, and that , if true, proves a fact, without inference

or presumption. Black's Law Dicti onary (Deluxe 7th ed. 1999).

Here, the only direct evidence regarding the alleged solicitation

by Respondent for sex from Complainant in exchange for ensuring

approval of the speed bumps in her neighborhood was the testimony

of Complainant and Respondent presented at the final hearing.

1 5 / Based on Brinkley's testimony that Complainant told him about

Respondent's alleged solicitation shortly before it was covered in

the local news media, it is inferred that she likely told him

sometime in late 2017 or e arly 2018 .

1 6 / A s discussed in greater detail below, the clear and

convincing evidentiary standard requires testimony to be precise,

explicit, distinctly remembered, and lacking in confusion. See

In re Davey , 645 So. 2d 398, 404 (Fla. 1994).

C OPIES FUR NISHED:

Millie Wells Fulford, Agency Clerk

Florida Commission on Ethics Post Office Drawer 15709 Tallahassee, Florida 32317 - 5709

(eServed)

Brennan Donnelly, Esquire

Mark Herron, Esquire

Messer, Caparello, P.A.

2618 Centennial Place

Post Office Box 15579

Tallahassee, Florida 32317 — 5709

(eServed)

Melody A. Hadley, Esquire

Elizabeth A. Miller, Esquire

Office of the Attorney General

The Capitol, Plaza Level 01

Tallahassee, Florida 32399 - 1050

(eServed)

C. Christopher Anderson, III, General Counsel (eS erved)

Florida Commission on Ethics

Post Office Drawer 15709

Tallahassee, 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.