19-003177EC In Re: Wanda Range vs. * Status: Closed Recommended Order on Friday, November 8, 2019.

Summary: Evidence showed that Respondent violated the anti-nepotism provision of section 112.3135, but was insufficient to prove misuse of office under section 112.313(6), or a violation of the gift disclosure requirements of 112.3148(8), Florida Statutes.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

IN RE: WANDA RANGE , Case Nos. 19 - 3176EC

19 - 3177EC 19 - 3178EC

Respondent . 19 - 3179EC

/ 19 - 3180EC

RECOMMENDED ORDER

An admi nistrative hearing was conducted in this case on

August 12 , 2019, in Tallahassee, Florida, before James H.

Peterson, III, Administrative Law Judge with the Division of

Administrative Hearings (DOAH).

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: Ma rk Herron, Esquire

Messer Caparello, P.A.

2618 Centennial Place

Post Office Box 15579

Tallahassee, Florida 32317

STATEMENT OF THE ISSUE S

The issue s for determination are :

Whether Respondent violated s ection 112.3135, Florida

Statutes, 1/ by voting on the appointment and/or advocating

for the appointment of her relative to a positi on within

her agency and/or her agency voting to appoint and/or

advance her relative and , if so, what is the appropriate

penalty?

Whether Respondent violated s ection 112.313(6),

Florida Statutes, by using her position to appoint her

relative to the positio n of City of Midway Mayor Pro Tem

and , if so, what is the appropriate penalty?

Whether Respondent violated s ection 112.313(6),

Florida Statutes, by using a City of Midway - owned vehicle

and/or City of Midway - issued gasoline credit card for

personal use and , if so, what is the appropriate penalty?

Whether Responden t violated s ection 112.3148(8),

Florida Statutes, by failing to report the gift of the

personal use of the City of Midway - owned vehicle and/or the

City of Midway - issued gasoline credit card and , if so, what

is the appropriate penalty?

PRELIMINARY STATEMENT

On April 17, 2019 , the Florida Commission on Ethics

(Commission) , in considering five related complaints, issued an

O rder f inding p robable c ause (Order Finding Probable Cause) that

Respondent, Wan da Range , as a Midway City Councilmember and/or

Mayor , violated s ection s 112.3 1 3 5 , 112.313(6), and 112.3148(8) .

The case s were forwarded to the Division of Administrative

Hearings on June 11, 2019 , as five separate cases, which were

given DOAH Case No s . 19 - 3176EC, 19 - 3177EC, 19 - 3178EC, 19 - 3179EC,

and 19 - 3180EC .

Upon assignment of the five cases, the undersigned

entered a n Order of Consolidation on June 18, 2019 ,

consolidating the cases . The fi nal hearing was scheduled to

be heard August 12 and 13, 2019.

The hearing commenced as scheduled on August 12, 2019. At

the hearing, the Commissio n presented the testimony of

Respondent ; Lamar Kirkland ; Tammy Knight ; Leslie Steele ; Grayden

Schafer ; Ronald Colston ; and Beau Jackson. The Commi ssion

offered 12 exhibits , which were received into evidence as

Exhibits A - 1 through A - 3, A - 5, A - 7 through A - 10, A - 12, and

A - 14 through A - 16. Respondent’s testimonial evidence was

presented through her testimony and cross - examination of

witnesse s call ed during the presentation of the Commission’s

case - in - chief . Respondent also offered the deposition

transcript of Anthony Thomas, in lieu of live testimony, which

was received into evidence as Exhibit R - 6, and Respondent

offered five additional exhibits received into evidence as Exhibits R - 1 through R - 5.

The proceedings were recorded and a transcript was ordered.

A two - volume T ranscript of the hearing was filed on

September 16, 2019. By agreement, the parties were given until

October 9, 2019, to file pr oposed recommended orders. Both

parties timely filed their respective Proposed Recommended

Orders, which have been considered in preparing this Recommended

Order.

FINDINGS OF FACT

1. At all material times, Respondent served as a me mber of

the Midway City Council (City Council). She was initially

appointed to the City Council in 2000 and served until 2003.

She was subsequently elected to the City Council in 201 5 and

served until May of 2019. Respondent became the Mayor of the

City of Midway in May of 20 17.

2. As a member and/or m ayor of the City Council,

Respondent is subject to article II, s ection 8, Florida

Constitution, and the requirements of part III, c hapter 112,

Florida Statutes, Code of Ethics .

3. In January 2018, Respondent attended a nd recei ved

ethics training from the Florida League of Cities. That

t raining included information on and examples of nepotism,

misuse of position, and the recei pt and disclosure of gifts.

It also included information about the Commission issuing

advisory opinion s and how to contact the Commission.

Nepotism Allegation

4. The form of government the City of Midway ( the City)

provided under its Charter is the "Council - Manager Government , ”

under which a ll powers of the City are vested in an elected

council. The C i ty Council consists of five citizens who are

residents of the City and electors eligible to vote in the City

elections.

5. F rom its members, the City Council elects a Mayor and

Mayor Pro - Tem. The election of the Mayor and Mayor Pro - Tem

occurs at the firs t regular council meeting after the City

election.

6. According to the Midway City Charter, the Mayor

presides at all meetings of the City Council and performs other

duties consistent with the office as imposed or designated by

the City Council. The May or has a voice and vote in the

proceedings of the City Council. The Mayor is ref erred to as

Mayor - Councilmember in the execution of any legal instruments or

writing or when functioning to meet other duties arising from

the general laws of Florida or from the City Charter . The Mayor

is recognized as the head of C ity government for all ceremonial

purposes, for service of process, execution of contracts, deeds

and other documents. The Mayor may take command of the police

and govern the C ity by proclamation during the times of grave

public danger or emergency and the Mayor has the power during

such times to appoint additional temporary officers and

patrolmen. The power and duties of the Mayor - Councilmember are

such as they are conferred upon him/her by the M idway City

Charter and no other.

7. T he Midway City Charter provides that the Mayor shall:

“(a) See that all laws, provisions of this

charter, and acts of the council, subject to

his/her direction and supervision are

faithfully executed; (b) Submit the annual

budget message; (c) Summon the appropriate

law enforcement officers to suppress civil

disturbances and to keep law and other

during times of emergency; (d) Make such

other reports as the council may require

concerning the operations of city

departm ents, offices, and agencies subject

to his/her direction in time of emergency;

(e) Attend, preside, and vote at all council

meetings; (f) Sign contracts on behalf of

the city pursuant to the provisions of

applicable ordinances; (g) Be recognized as

the cit y official designated to represent

the city in all agreements with other

governmental entities or certifications to

other governmental entities as approved by

th e vote of the city council; (h) Annually

prepare a state of the city message, set

forth the age nda for all meetings of the

council, name committees of the council,

make recommendations of members for city

boards to the city council; (i) Perform such

other duties as specified in this charter or

may be required by council.”

8. The p opulation of th e City is less than 4,000

residents.

9. The City Council has land use and/ or zoning

responsibilities.

10. In April 2016, there was a vacancy on the City Council

caused by a C ouncilmember departing prior to the end of that

C ouncilmember’s term. Responde nt’s first cousin, Sam Stevens,

wanted to be appointed to the City Council to fill the vacant

seat .

11. Prior to any action on the matter, Respondent

telephoned Commission legal staff member, Grayden S c hafer ,

Esquire, and inquired whether she would be in violation of the

anti - nepotism statute if the Council appointed her first cousin

to serve the unexpired remainder of a departing Councilmember's

term.

12. Following his telephone conversation with Respondent,

on April 21, 2016 , Attorney Schafer sent an e - mail to Respondent

at [e-mail] , summarizing Respondent’s inquiry and

the advice he provided. T he last page of that e - mail (Schafer’s

E - mail) states :

a public official can be held in violation

of the anti - nepotism provision if the

appointm ent is made by the collegial body on

which she serves, even if she did not

participate in the appointment. Given the

foregoing, it appears that you can be held

in violation of the anti - nepotism statute

not only if you directly participate or

advocate for your first cousin's appointment

but also if the City Council decides on its

own to appoint him, regardless of whether

you vote or participate.

13. According to Respondent , she did not receive the

Schafer E - mail in 2016 and did not see it until after the filing

of the complaints initiating this case against Respondent.

14. Regardless of the timing of Respondent’s receipt of

Schafer’s E - mail, the evidence is persuasive that the topic was

discussed between R espondent and Attorney Schafer , and that, a s

a res ult of her telephone conversation with Attorney Schafer in

April 2016 , Respondent understood that, because of her kinship

with Sam Stevens, she could not vote to appoint or advocate to

appoint Sam Stevens to the City Council. She also was aware

that, even if she recused herself from voting or participating

in the discussion to appoint Sam Stevens to the City Council, if

the City Council voted to appoint her first cousin to the vacant

seat, she would be in violation of the anti - nepotism provision .

15. Afte r her conversation with Attorney Schafer , in

April 2016 , Respondent advised the City Council of her research

and that she had contacted the Commission to inquire as to

whether she could vote to appoint her cousin to the City

Council. She explained that sh e could not and would have to

resign if he was appointed, even if she did not participate in

the vote.

16. Sam Stevens was not appointed to fill the vacant City

Council seat in 2016.

17. The next year, Sam Stevens was elected to the City

Council during t he April 2017 municipal election. He was not

elected or appointed by the City Council, but rather was elected

by City citizens voting in the election.

18. The following month, at its May 4, 2017, meeting, the

City Council considered the issue of electing a Mayor and Mayor

Pro - Tem as provided by the City Charter.

19. At that meeting , Councilman Colston asked if it was

legal for relatives to vote for each other. The minutes of the

City Council for that date indicate that “Interim City Attorney

Thomas ex plained he had heard the rumor and did research and it

is legal.”

20. Contrary to the City Council minutes, i n his

deposition testimony , City Attorney Thomas denied that he gave

that advice , but rather explained that he opined that Respondent

and Council man Sam Stevens could serve together on the City

Council, but could not promote or advocate for one another.

21. Despite his denial, during his interview with the

Commission’s investigator, City Attorney Thomas “recalled

researching the matter and advisi ng R espondent that it was not a

voting conflict for her to vote to appoint her cousin to serve

as mayor pro tem."

22. Considering the conflicting evidence , it is found that

the preponderance demonstrates that the City Attorney advised

that it was not a v oting conflict for r elatives to vote for each

other for Mayor and Mayor Pro - Tem.

23. Respondent did not reveal her 2016 conversation with

Attorney Schafer to the City Council on May 4, 2017, nor did she

provide a copy of Schafer’s E - mail dated April 21, 2 016, to

either the City Council or the City Attorney prior to the City

Council’s votes for Mayor and Mayor Pro - Tem.

24. However, a t the May 4, 2017, City Council meeting, a

citizen confronted Respondent with a copy of Schafer’s E - mail,

reading portions of Schafer ’s E - mail aloud.

25. Respondent testified that she did not acknowledge an

ethical dilemma regarding Attorney Schafer ’s opinion because she

believed it addressed appointment as opposed to election, and

her cousin had been elected a year later , no t appointed .

26. Schafer’s E - mail does not address the situation in

which both Respondent and her first cousin are elected members

of the City Council and whether Respondent can vote to elect him

as the Mayor Pro - Tem in that context.

27. At that meeting, Respondent nominated herself to serve

as Mayor. Her nomination was seconded by Councilman Smith.

Respondent was elected as Mayor when t he City Council voted

three to two for Respondent to serve as Mayor with Councilman

Smith, Councilman Sam Stevens , and Respondent voting “yes , ” and

Councilman Ronald Colston and Councilwoman Carolyn Francis

voting “no.”

28. Respondent, as the Mayor, received an $800 stipend ,

which is $100 more than the other councilmembers.

29. At that same May 4, 2016 , meeting, Council man Colston

nominated Councilwoman Francis to serve as Mayor Pro - Tem. That

nomination failed two to three , with Respondent, Councilman

Smith , an d Councilman Stevens voting “no . ” Councilman Smith

then nominated Councilman Stevens to serve as Mayor Pr o - Tem .

The City Council voted three to two for Councilman Stevens to

serve as Mayor Pro - Tem with Respondent, Councilman Stevens, and

Cou n cilman Smith voting “yes,” and Councilman Ronald Colston and

Councilwoman Carolyn Francis voting “ no. ”

30. According to the City Charter, t he Mayor P ro - T em :

“shall preside over the meetings of the

council during the absence of the mayor -

councilmember, and in general in the absence

or the incapacity of the mayor -

councilmember, he/she shall do [sic] per form

those acts and th ings provided in this

Chapter to be done by the mayor -

councilmember. Nothing contained herein

shall be construed as to preclude the member

succeeding himself or herself as Mayor -

Council member.”

31. T he City provides no additional compensation for a

Cou ncilmember serving as Mayor Pro - Tem .

Vehicle Use and Gift Disclosure

32. The City ha s two vehicles. One is a white Ford Taurus

that h as air conditioning (Vehicle) . The other is a white Ford

Taurus with a red stripe that d oes not hav e air conditioning.

33. Respondent was given a 2002 MPV Mazda Van by her

daughter , Temika Smith, on Mother’s Day in 2016 .

34. While serving as M ayor, Respondent had use of the

Vehicle for personal use.

35. Respondent began using the V ehicle in September or

Oct ober 2017 fo llowing a hurricane and had access to the Vehicle

until she st opped using it in May of 2019. During this time,

t he V ehicle was generally parked on property adjacent to

Respondent ’s residence . While Respondent had a set of keys to

the V ehicle, there was a nother set of keys at the City Hall.

36. In addition to Respondent’s access, other city

employees or city council members could use the V ehicle. Former

City Manager Steele used the V ehicle on occasion during the time

that Respondent had access to the Veh icle. When former City

Ma nager Steele wanted to use the V ehicle, she would pick it up

from Respondent ’s residence and return it to City Hall.

37. Respondent used the Vehicle for a variety of City -

r elated purposes . She used it to travel to Florida Leagu e of

Cities’ conferences. In addition, she used the V ehicle to

attend events in Midway, in Gadsden County, and in Tallahassee,

including meetings with the City’s lobbyist and members of the

Florida Legislature, as part of her duties and responsibilities

a s Mayor . Respondent was also observed driving the V ehicle to

meetings at the City Hall.

38. Respondent’s personal use of the Vehicle included , but

was not limited to, traveling roundtrip between Midway and

Tallahassee. S he may have had her daughter in the V ehicle o n

two or three occasions, and on occasion, drove the V ehicle to

her daughter’s house in Tallahassee .

39. On one of th e occasions when Respondent drove the

Vehicle to her daughter’s house in Tallahassee , which occurred

on March 15, 2018 , Res pondent had a run - in with a Midway

resident who had followed Respondent to her daughter’s house .

The Mid way Resident took pictures of the Vehicle at Respondent’s

daughter’s house and also the Mazda MPV van , which was without a

license plate. On that occa sion, Respondent had gone to check

on the house because her daughter was out of town.

40. At the final hearing, Respondent admitted that there

was a time when the Mazda MPV was in the shop a lot, and, since

she had access to the Vehicle, she turned in th e Mazda’s tag to

save on insurance payments .

41. On another occasion in 2018, Respondent was stopped by

a Gadsden County Deputy Sheriff in Midway after midnight for

having a tag light out and the incorrect tag on the V ehicle.

Respondent had been returnin g from Tallahassee. No citation was

issued with respect to that stop.

42. Other examples presented at the hearing illustrating

Respondent’s use of the Vehicle included her transporting a

child from Midway to Florida High in Tallahassee , taking a

Midway resident from Midway to Tallahassee to drop him at his

place of employment , and taking an individual to Liberty County

to retrieve that person’s vehicle left when evacuating because

of a hurricane. While providing such ac c ommodations is not

listed within Respondent’s responsibilities as Mayor or

Councilmember, a rguably, they serve d a public purpose .

43. While Respondent had access and use of the Vehicle ,

the City did not have a vehicle - use policy.

44. The evidence indicate s that former City manager Ford

also used a City - owned vehicle for personal use.

45. Former City Manager Steele could not recall if any

other city employees or city council members had used the

Vehicle.

46. Respondent testified that employees of the City’s

public works department mig ht also have used the V ehicle.

47. City Councilman Ron Colston testified that he never

used the V ehicle.

48. At the May 3, 2018 , Midway City Council meeting ,

Councilman Co lston publicly requested th at Respondent stop

driving the V ehicle , stating that c itizens had approached him

with concerns about Respondent driving the V ehicle.

49. Minute s of that City Council meeting indicate that

Councilman Coston commented that he had received some calls from

citizens concerned with Respondent driving the City - owne d

vehicle and suggested that she should park the V ehicle because

of the number of complaints and that it is a liability.

50. In response to that comment, City Attorney Thomas

suggested that the City Council come up with some policy and

procedures on the u se of C ity vehicles.

51. Respondent did not stop driving the Vehicle at the

time of Councilman Colston’s request . B y the end of

Octob er 2018, the V ehicle needed a tune - up and to have its

brakes checked.

52. In October 2018, Respondent started using a rental car

when she got a job with the Federal Emergency Management Agency

( FEMA ) for debris monitoring. Respondent was not reimbursed by

FEMA for the rental.

53. In January 2019, Respondent purchased a new vehicle, a

2019 Mitsubishi G4 Mirage .

54. At the time of the final hearing in this case, t he

City was in the process of developing a policy regarding the use

of C ity vehicles and City Fuel Cards.

55. Respondent did not report the use of the vehicle on

her income taxes and did not file a gift disclos ure to report

her pe rsonal use of the City - owned vehicle as a gift .

Fuel Card Use and Gift Disclosure

56. Respondent used a City - issued Pilot Travel Center

credit card for gasoline for the Vehicle.

57. City - issued Pilot Travel Center credit card #007

(C ity Fuel Card) was assigned to the Vehicle . The City Fuel

Card was the only one numbered #007 and it remained in the

V ehicle.

58. While s ome of the fuel purchases charged to the City

Fuel Card were related to City business , Respon d ent acknowledged

that fuel was also purchased using the City Fuel Card during her

personal use of the Vehicle .

59. Records of City Fuel Card #007 from November of 2017

through December of 2018 show the following charges:

60. November 2017 :

- November 1, 2017 – 623 Quincy FL - $33.67

- November 5 , 2017 - 425 Midway FL - $20.71

- November 5, 2017 - 4556 Wildwood FL - $20.00

- November 8, 2017 - 4556 Wildwood FL - $18.30

- November 9 , 2017 - 623 Quincy FL - $24.72

- November 13, 2017 - 623 Quincy FL - $21.77

- Novembe r 13, 2017 - 623 Quincy FL - $35.42

- November 20, 2017 - 623 Quincy FL - $42.68

- November 20, 2017 - 623 Quincy FL - $30.78

- November 27, 2017 - 623 Quincy FL - $32.00

Respondent traveled on City business to and from Orlando,

Florida , from Nov ember 5 through November 8, 2017. As to the

multiple charges on November 13, 2017 , and November 20, 2017,

Respondent explained that she traveled on City business because

“we were giving out turkeys during that time.”

61. December 2017 :

- December 2, 2017 – 623 Quincy FL - $30.91

- December 12, 2017 – 623 Quincy FL - $34.06

- December 15, 2017 – 425 Midway FL - $30.27

- December 22, 2017 – 425 Midway FL - $27.03

62. January 2018 :

- January 9, 2018 – 425 Midway FL - $33.82

- January 17, 2018 – 425 Midway FL - $22.03

- January 18, 2018 - 4556 Wildwood FL - $18.00

- January 21, 2018 - 4556 Wildwood FL - $8.20

- January 22, 2018 - 425 Midway FL - $15.50

- January 23, 2018 - 425 Midway FL - $8.57

- January 24, 2018 - 425 Midway FL - $10.01

- January 26, 2018 - 425 Midway FL - $24.00

Respondent traveled on City business to and from Orlando,

Florida , during the period from January 18 through 22, 2018.

63. February 2018 :

- February 2, 2018 – 425 Midway FL - $34.26

- Februar y 15, 2018 – 425 Midway FL - $32.00

- February 22, 2018 – 425 Midway FL - $30.01

64. March 2018 :

- March 14, 2018 - 425 Midway FL - $31.00

- March 28, 2018 – 425 Midway FL - $32.07

65. April 2018 :

- April 7, 2018 – 425 Midway FL - $25.00

- A pril 17, 2018 – 425 Midway FL - $35.44

- April 28, 2018 – 425 Midway FL - $7.52

66. May 2018 :

- May 14, 2018 – 425 Midway FL - $37.01

- May 20, 2018 – 425 Midway FL - $29.02

- May 26, 2018 – 425 Midway FL - $41.00

67. June 2018 :

- June 1, 2018 – 4556 Wildwood FL - $25.03

- June 2, 2018 – 4556 Wildwood FL - $18.02

- June 4, 2018 – 425 Midway FL - $20.00

- June 9, 2018 – 425 Midway FL - $31.00

- June 15, 2018 – 425 Midway FL - $28.04

- June 29, 2018 – 425 Midway FL - $33.00

Re spondent traveled on City business to and from Orlando,

Florida during the period fro m May 31, 2018 , through

June 2, 2018 .

68. July 2018 :

- July 18, 2018 - 425 Midway FL - $35.06

69. August 2018 :

- August 3, 2018 – 425 Midway FL - $21.08

- August 14, 20 18 - 622 St. Lucie FL - $20.01

- August 14, 2018 - 091 Jacksonville - $24.00

- August 19, 2018 - 624 Dade City FL - $27.02

- August 20, 2018 - 425 Midway FL - $19.33

- August 24, 2018 - 425 Midway FL - $33.01

Respondent traveled on City business to and from Hollywood,

Florida during the perio d from August 14 through 18, 2018.

70. September 2018 :

- September 4, 2018 – 425 Midway FL - $37.00

- September 13, 2018 – 425 Midway FL - $35.50

- September 29, 2018 – 425 Midway FL - $36.01

71. October 2018 :

- October 10, 2018 – 623 Quincy FL - $39.07

72. November 2018 :

- November 21, 2018 – 623 Quincy FL - $33.07

73. December 2018 :

- December 5, 2018 – 623 Quincy FL - $18.80

74. In addition to the fact that s ome of Respondent ’s use

of the City Fuel Card to put fuel in the Vehicle included her

personal use of the Vehicle , Respondent used the City Fuel Card

to purchase gasoline for the Vehicle when she was using the

V ehicle for travel on City business, including travel to Florida

League of Cities’ conferen ces in November of 2017, as well as

while traveling on City business in and around Midway and

Gadsden County, and to and from Tallahassee.

75. Respondent also used the City Fuel Card to pay for

gasoline while traveling on City business to attend Florida

L eague of Cities ’ conferences in a rental vehicle. These

conferences occurred January 18 through 22, 2018 ; May 31 through

June 2, 2018; and August 14 through 18, 2 018.

76. There was no evidence presented that Respondent used

the City Fuel Card to purchase anything othe r than fuel for the

V ehicle or fuel for a rental car while on business for the City .

77. As the City Fuel Card was kept in the V ehicle, o ther

City Council members or City employees would have had access to

the City Fuel Card when they were d riving the V ehicle.

78. Respondent did not file a gift disclosure to report

her use of the City Fuel Card to put gasoline in the Vehicle on

those occasions when she used the Vehicle for personal use .

CONCLUSIONS OF LAW

79. The Division of Administrative Hearings has

jurisdiction over the parties and the subject matter of this

proceeding. § § 120.569 and 120.57(1), Fla. Stat.

80. Section 112.322 and Florida Administrative Code

Rule 34 - 5.0015 authorize the Commission to conduct

investigations and to make p ublic reports on complaints

concerning violations of the Code of Ethics for Public Officers

and Employees found in part III, c hapter 112 .

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

the contrary, is on the party asserting the affirmative of t he

issue s in the proceedings. 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 s ections 112.3135 ,

112.313(6) [two count s] , a nd 112.3148(8) . P roceedings , which

seek recommended penalties against a public officer or employee ,

require proof of the alleged violation(s) by clear and

convincing evidence. See Latham v. Fl a . Comm’n on Ethics ,

694 So. 2d 83 (Fla. 1st DCA 1997). Therefore, the burden of establishing by clear and convincing evidence the elements of

Respondent’s violation s is on the Commission .

82. As noted by the Supreme Court of Florida:

[C]lear and convincing evidence requires

that the evidence must be fou nd 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 the facts in issue. The evidence must

be of such weight that it prod uces 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 DC A 1983) ) . The

Supreme Court of Florida further explained that although 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 .

83. Resp ondent is subject to the requirements of part III,

c hapter 112, the Code of Ethics for Public O fficers and

E mployees, for her acts and omissions during her tenure on the

Midway City Council.

Nepotism

84. The nepotism prohibition under s ection 112. 31 3 5 (2 )(a)

provides:

A public official may not appoint, employ,

promote, or advance, or advocate for

appointment, employment, promotion, or

advancement, in or to a position in the

agency in which the official is serving or

over which the official exercises

juri sdiction or control any individual who

is a relative of the public official. An

individual may not be appointed, employed,

promoted, or advanced in or to a position in

an agency if such appointment, employment,

promotion, or advancement has been advocated

by a public official, serving in or

exercising jurisdiction or control over the

agency, who is a relative of the individual

or if such appointment, employment,

promotion, or advancement is made by a

collegial body of which a relative of the

individual is a member. However, this

subsection shall not apply to appointments

to boards other than those with land -

planning or zoning responsibilities in those

municipalities with less than 35,000

population. This subsection does not apply

to persons serving in a v olunteer capacity

who provide emergency medical, firefighting,

or police services. Such persons may

receive, without losing their volunteer

status, reimbursements for the costs of any

training they get relating to the provision

of volunteer emergency medi cal,

firefighting, or police services and payment

for any incidental expenses relating to

those services that they provide.

85. The term “agency” as used in s ection 112.3135(2) is

defined to include a “city.” § 112.3135(1)(a), Fla. Stat.

86. The term “public official” as used in s ection

112.3135(2) is defined as :

“Public official” means an officer,

including a member of the Legislature, the

Governor, and a member of the Cabinet, or an

employee of an agency in whom is vested the

authority by law, rule, or regulation, or to

whom the authority has been delegated, to

appoint, employ, promote, or advance

individuals or to recommend individuals for

appointment, employment, promotion, or

advancement in connection with employment in

an agency, including the aut hority as a

member of a collegial body to vote on the

appointment, employment, promotion, or

advancement of individuals.

§ 112.3135(1)(c), Fla. Stat.

87. The term “collegial body” as used in s ection

112.3135(2) means “ a governmental entity marked by powe r or

authority vested equally in each of a number of colleagues. ”

§ 112.3135(1)(b), Fla. Stat.

88. The term “relative” as used in s ection 112.3135(2) is

defined as follows:

“Relative,” for purposes of this section

only, with respect to a public official,

means an individual who is related to the

public official as father, mother, son,

daughter, brother, sister, uncle, aunt,

first cousin, nephew, niece, husband, wife,

father - in - law, mother - in - law, son - in - law,

daughter - in - law, brother - in - law, sister - in -

law, stepfather, stepmother, stepson,

stepdaughter, stepbrother, stepsister, half

brother, or half sister.

§ 112.3135(1)(d), Fla. Stat.

89. Considering the above statutory criteria, i n order to

esta blish that Respondent violated s ection 112.3215 (2)(a) , the

f ollowing elements must be proved:

1. Respondent must be a “public official”

as that term is defined by Section

112.3135(1)(b), Florida Statutes.

2. Respondent must have appointed,

employed, promoted, or advanced, or

advocated for appointment, employment,

promotion, or advancement, in or to a

position in the agency in which the official

is serving or over which the official

exercises jurisdiction or control.

3. The action taken by Respondent must have

been taken for an individual who is a

relative of the Respondent.

4. In the case of municipalities with less

than a population of 35,000, it must be that

the agency in which the Respondent is

serving or over which Respondent exercises

jurisdiction or control has land planning

responsibilities.

90. D uring the relevant time period Respondent served as a

me mber of the Midway City Council, she was a “public official.”

91. Respondent acknowledged that Sam Stevens was her first

cousin.

92. The evidence further established that Respondent voted

to elect Sam S tevens as Mayor Pro - Tem of the City of Midway.

93. Although t he evidence established that the City of

Midway has a population of less than 35,000 , it further

established that the exemption for municipalities with

populations of less than 35,000 does not a pply because it was

shown that the City Council has land - planning responsibilities.

See § 112.3135(2 )( a ), Fla. Stat., quoted above.

94. While t he evidence showed that Sam Stevens received no

additional compensation for serving as Mayor Pro - Tem , receipt o f

additional compensation is not required for a violation of

section 112.3135(2) . Rather, the statute prohibits a public

official from promoting or advancing a relative. As explained

by the Florida First District Court of Appeal “[t]o promote is

to exalt in station, rank, or honor . . . .” Slaughter v. City

of Jacksonville , 338 So. 2d 903, 804 (Fla. 1st DCA 1976) ; a ccord

Commission on Ethics Opinion ( CEO ) 13 - 7 (citing examples where

advancing occurs when there is an “enhancing” of the p ersonal

dignity an d importance of the position) .

95. In this case, the Mayor Pro - Tem's responsibilities

include serving as chair of the City Council and other mayoral

activities in the absence of the M ayor.

96. Respondent , as a member of a collegial body, voted on

the ele ction and/or advocated for the election of her relative,

Sam Stevens, to become M ayor Pro - Te m in the agency in which she

was serving or over which she exercise d jurisdiction or control.

97. In addition, a collegial body may not appoint or elect

a relative of one of its members to a position regardless of

whether Respondent voted or not.

98. While the prohibition of nepotism whether or not the

official participates in the decision to advance a relative may

seem harsh, i n CEO 95 - 12 , the Commission explained the history

of the current anti - nepotism language found in section

112.3135 (2)(a) :

We previously had opined that public

officials could not appoint their relatives

to uncompensated positions on advisory

boards, even where the relative of the

appointee abs tained from voting on the

appointment and did not otherwise advocate

the appointment. See CEO 92 - 50 and the

opinions cited therein. However, this

interpretation was stru ck down by the

Florida Supreme Court in City of Miami Beach

v. Galbut , 626 So. 2d 192 (1993), where the

Court construed Section 112.3135(2)(a),

Florida Statutes, to prohibit only

affirmative acts on the part of the public

official/relative. Thus, the Cour t opined

that Mr. Galbut was eligible for

reappointment to the city zoning board of

adjustment as long as his city commissioner

father - in - law abstained from voting and in

no way advocated [for] his reappointment.

After the Court's decision in Galbut , the

Legislature revisited Section

112.3135(2)(a), Florida Statutes, and

amended it during the 1994 legislative

session to read as follows:

A public official may not appoint, employ, promote, or advance, or advocate for

appointment, employment, promotion, or

advancement, in or to a position in the

agency in which he is serving or over which

he exercises jurisdiction or control any

individual who is a relative of the public

official. An individual may not be

appointed, employed, promoted, or advanced

in or to a position in an agency if such

appointment, employment, promotion, or

advancement has been advocated by a public

official, serving or exercising jurisdiction

or control over the agency, who is a

relative of the individual or if such

appointment, employme nt, promotion, or

advancement is made by a collegial body of

which a relative of the individual is a

member. However, this subsection shall not

apply to appointments to boards other than

those with land - planning or zoning

responsibilities in those municip alities

with less than 35,000 population .

[Section 112.3135(2)(a), Flori da Statutes,

(Supp. 1994)]

99. In sum, the clear and convincing evidence proved that

Respondent violated the nepotism prohibition found in section

112.3135 (2)(a) when she voted to elect her first cousin as Mayor

Pro - Tem .

Alleged Misuse of Respondent’s Public Position to Promot e

Her Cousin

100. The Misuse of Public Position prohibition of the Code

of Ethics is found in s ection 112.31 3 ( 6 ) , which provides:

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 for

himself, herself, or others. This section

shall not b e construed to conflict with

s. 104.31.

101. In order to esta blish that Respondent violated

s ection 112 .3215 , the following elements must be established by

clear and convincing evid ence :

1. Respondent must have been a public

officer or employee.

2. Respondent must have:

a. used or attempted to use his or her

official position or any property or

resou rces within his or her trust, or

b. performed his or her official

duties.

3 . Respondent’s actions must have been

taken to secure a special privilege,

benefit , or exemption for him or herself or

others.

4. Respondent must have acted corruptly,

that is, with wrongful intent and for the

purpose of benefiting him or herself or

ano ther person from some act or omission

which was inconsistent with the proper

performance of public duties.

102. The term “corruptly” as used in s ection 112.313(6) is

defined 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.

§ 112.312(9), Fla. Stat.

103. A s used in s ection 112.313(6) , t he term “public

officer” is defined to include “any person elected or appointed

to hold office in any agency, including any person serving on an

advisory body.” § 112.313(1), Fla. Stat.

104. The evidence clearly established that Respondent was

a “public officer.” During the relevant time period, Respondent

served as a member of the City Council.

105. The evidence further convincingly showed that

Respondent performed her official duties when she voted at the

May 4, 2017 , City Council meetin g to elec t her first cousin, Sam

Stevens, as May or Pro - Tem of the City .

106. The evidence was insufficient, however, to clearly

and convincing ly demonstrate that Respondent secured a special

privilege, benefit , or exemption for her self or her cousin by

vo ting to elect him Mayor Pro - Tem. Rather, t he evidence

established that the post of being Mayor Pro - Tem under the Cit y

Charter is largely ceremonial. S ervice as Mayor Pro - Tem was

contingent upon the absence or inability of Respondent to

perform her duties . T he Mayor Pro - Tem received no additional

compensation.

107. While the statutory provision against misuse of

position does not restrict the privilege or benefit prohibited

under s ection 112.313(6) to an economic benefit, ( see , e.g. ,

Garner v. Commissio n on Ethics , 4 39 So. 2d 894, 895 (Fla. 2d

DCA 1983) ) , Respondent’s vote for her cousin for the ceremonia l

and contingent duties of the Mayor Pro - Tem without more, under

the circumstances of this case, does not weigh in favor of

finding a “special” benefit or priv i lege .

108. Further, the evidence was insufficient to show that

Respondent acted with the requisite “corrupt in tent.” To prove

this element, it must be shown that Respondent 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 code of ethics in part III of chapter 112. ”

Blackburn v. State, Comm’n on Ethics , 589 So. 2d 431, 434

(Fla. 1st DCA 1991).

109. Rather than showing that Respondent had reasona ble

notice that it would be wrong to vote to elec t her cousin as

Mayor Pro - Tem, t he evidence showed that , prior to the vote,

Respondent sought advice from the City Attorney . T he City

Attorney advised Respondent that it was not a voting confli ct

for her to vote to elect her cousin .

110. T he Commission contends that Respondent ’s corrupt

intent was demonstrated by her failure to provide t he City

Attorney with a copy of Schafer’s E - mail . However, Schafer’s E -

mail was directed toward a different situation, n amely, the

appointment of Respondent’s cousin to fill a vacant City Council

seat . In contrast, t he vote at issue on May 4, 2018, was a vote

to elect Respondent’s cousin to a ceremonial position after he

had already been elected to the City Council by the citizenry .

Further, the evidence show ed that Schafer’s E - mail was brought

up and discussed at the Ma y 4, 2018, City Council meeting .

111. Considering the evidence, i t is concluded that it was

insufficient to clearly and convincing ly prove that Responden t

misused her po sition when she voted to elect her cousin to the

Mayor Pro - Tem position.

Alleged Misuse of Respondent’s Public Position by Using the

City Vehicle and Fuel Credit Card for her Personal Benefit

112. Consideration of whether Respondent misus ed her

public position in violation of section 112.313(6) , when she

used the City’s Vehicle and City Fuel Card for her personal

benefit , is a closer question t han Respondent’s vote to elect

her cousin.

113. Considering the elements to show a violation o f

section 112.313(6), once again, the evidence clearly established

that Respondent was a “public officer , ” as Respondent served as

a me mber of the City Council during the relevant time period.

114. Convincing evidence also established that

Respondent’s u se of the City’s Vehicle and the City Fuel Card

constituted use of property and resources within her trust .

115. Although Respondent used the Vehicle and City Fuel

Card for City business, she also used them for her personal

benefit. For over a year, Resp ondent had the pleasure,

convenience, and free use of the City’s air - conditioned V ehicle

for her person al use at the City’s expense.

116. The evidence also established, however, that while

Respondent was using the Vehicle and City Fuel Card, the City

had no policy wit h regard to their use. Prior to Respondent’s

use of the Vehicle, a former City Manager had used a city

vehicle for personal use . At the time of the final hearing, t he

City was still in the process of developing policies reg arding

the use of City vehicles and fuel cards.

117. While there was no evidence of a formal assignment of

the Vehicle to Respondent, as Mayor, it was understood by the

City Manager that the Vehicle was kept at Respondent’s

residence. Without a policy in place and consi dering

Respondent’s use of the Vehicle for City business intermittently

with personal use , the Vehicle was arguably an incident of

Respondent’s employment as Mayor.

118. T he Commission argues that the lack of a policy is

not a defense to a finding of corr upt intent, and points to

Respondent’s ethics training and her awareness that personal use

of City - paid postage w ould be wrong as evidence of Respondent’s

notice that her personal use of the Vehicle and City Fuel C ard

was prohibited. However, considering the City’s lack of a

policy regarding personal use , coupled with Respondent’s

official use of the Vehicle and City Fuel Card with intermittent

persona l use , a history of personal use of a city vehicle by a

former city manager , as well as the practice of al lowing the

Vehicle to be kept at Respondent’s home and leaving a fuel card

in the Vehicle for use by Respondent and other City employees ,

that argument is rejected. Rather, considering the evidence, it

is concluded that it is insufficient to clearly and c onvincingly

prove that Respondent had reasonable notice or intent that her

conduct was inconsistent with the proper performance of her

public duties or would be a violation of the law or code of

ethics. See Blackburn .

Alleged Failure to Report Use of the City Vehicle and City

Fuel Card as Gifts

119. Sectio n 112.3148(8) provides:

(8)(a) Each reporting individual or

procurement employee shall file a statement

with the Commission on Ethics on the last

day of each calendar quarter, for the

previous calend ar quarter, containing a list

of gifts which he or she believes to be in

excess of $100 in value, if any, accepted by

him or her, for which compensation was not

provided by the donee to the donor within 90

days of receipt of the gift to reduce the

value to $1 00 or less, except the following:

1. Gifts from relatives.

2. Gifts prohibited by subsection (4) or s.

112.313(4).

3. Gifts otherwise required to be disclosed

by this section.

120. The term “reporting individual” as used in s ection

112.3148(8) is defined, in pertinent part, as :

any individual, including a candidate upon

qualifying, who is required by law, pursuant

to s. 8, Art. II of the State Constitution

or s. 112.3145, to file full or limited

public disclosure of his or her financial

interes ts or any individual who has been

elected to, but has yet to officially assume

the responsibilities of, public office.

§ 112.3148(1)(d ), Fla. Stat.

121. In Florida, m ayors and elected municipal council

members are “local officer s ” who are required to an nually file

public disclosures of their financial interests.

See § § 112.3145(1)(a)3. and 112.3145(2)(b) , Fla. Stat.

122. The term “gift” as used in s ection 112.3148(8) is

defined as :

(12) (a) “Gift,” for purposes of ethics in

government and financial dis closure required

by law, means that which is accepted by a

donee or by another on the donee’s behalf,

or that which is paid or given to another

for or on behalf of a donee, directly,

indirectly, or in trust for the donee’s

benefit or by any other means, fo r which

equal or greater consideration is not given

within 90 days, including:

1. Real property.

2. The use of real property.

3. Tangible or intangible personal

property.

4. The use of tangible or intangible

personal property.

5. A preferential r ate or terms on a

debt, loan, goods, or services, which

rate is below the customary rate and is

not either a government rate available

to all other similarly situated

government employees or officials or a

rate which is available to similarly

situated memb ers of the public by

virtue of occupation, affiliation, age,

religion, sex, or national origin.

6. Forgiveness of an indebtedness.

7. Transportation, other than that

provided to a public officer or

employee by an agency in relation to

officially approv ed governmental

business, lodging, or parking. 8. Food or beverage.

9. Membership dues.

10. Entrance fees, admission fees, or

tickets to events, performances, or

facilities.

11. Plants, flowers, or floral

arrangements.

12. Services provided by per sons

pursuant to a professional license or

certificate.

13. Other personal services for which

a fee is normally charged by the person

providing the services.

14. Any other similar service or thing

having an attributable value not

already provided for i n this section.

(b) “Gift” does not include:

1. Salary, benefits, services, fees,

commissions, gifts, or expenses

associated primarily with the donee’s

employment, business, or service as an

officer or director of a corporation or

organization.

2. Ex cept as provided in s. 112.31485,

contributions or expenditures reported

pursuant to chapter 106, contributions

or expenditures reported pursuant to

federal election law, campaign - related

personal services provided without

compensation by individuals

volun teering their time, or any other

contribution or expenditure by a

political party or affiliated party

committee.

3. An honorarium or an expense related

to an honorarium event paid to a person

or the person’s spouse.

4. An award, plaque, certificate, or

similar personalized item given in

recognition of the donee’s public,

civic, charitable, or professional

service.

5. An honorary membership in a service

or fraternal organization presented

merely as a courtesy by such

organization.

6. The use of a pub lic facility or

public property, made available by a

governmental agency, for a public

purpose.

7. Transportation provided to a public

officer or employee by an agency in

relation to officially approved

governmental business.

8. Gifts provided directly or

indirectly by a state, regional, or

national organization which promotes

the exchange of ideas between, or the

professional development of,

governmental officials or employees,

and whose membership is primarily

composed of elected or appointed public

o fficials or staff, to members of that

organization or officials or staff of a

governmental agency that is a member of

that organization.

§ 112.312(12) (a) & (b) , Fla. Stat.

123. Section 112.3148(7) , regarding valuation of certain

specific gifts , provides in pertinent parts:

(d) Transportation provided in a private

conveyance shall be given the same value as

transportation provided in a com parable

commercial conveyance.

* * *

(i) Except as otherwise specified in this

section, a gift shall be val ued on a per

occurrence basis.

124. As mayor and a member of the City Council, Respondent

was a “reporting individual” required to file annual public

disclosures of her financial interests pursuant to

section 112.3145 .

125. As noted earlier, Respondent’s use of the Vehicle and

City Fuel Card could arguably be characterized as an incident of

Respondent’s employment as Mayor , and therefore, not a gift.

See § 112.3148(8) (b)1. , Fla. Stat., quoted above.

126. However, without the argument that the use was an

incide nt of Respondent’s employment, t he evidence convincingly

established that Respondent accepted a gift in the form of

“[t]ransportation, other than that provided to a public officer

or employee by an agency in relation to officially approved

governmenta l bus iness, lodging, or parking , ” see section

112.3148(12)(a)7 . , quoted above, when she used the Vehicle and City Fuel Card for her personal , non - official business ,

transportation .

127. In addition to her personal use, however, t he

evidence also established th at Respondent used the Vehicle and

City Fuel Card for official business. Given Respondent’s

intermittent business and personal use s , the evidence was

insufficient to establish continuous personal use for over a

year, as argued by the Commission.

128. M oreover, considering Respondent’s personal use on a

“per occurrence” basis, see section 112.3148(7) (i), quoted

above, the evidence was insufficient to clearly and convincingly prove that Respondent’s personal use of the Vehicle or City Fuel Card exceed ed $ 100 on any given occur r ence . Other than some

specific instances, there was no evidence showing which days

Respondent drove the Vehicle or where she drove it . There was

no evidence showing how many miles Respondent drove the vehicle

on any given day. Evi dence that the V ehicle was parked at

property located adjacent to Respondent’s residence is not

determinative that she exclusively used the Vehicle , especially

in light of evidence that others used the V ehicle on occasion ,

picking it up from that location .

129. Considering the facts , circumstances , and evidence

presented in this case , together with applicable law , it is

concluded that Respondent did not violate the gift disclosure

requirement s of section 112.3148(8).

PENALTY

130. P enalties available for p ublic officer s who violate

the Code of Ethics include impeachment, removal from office,

suspension from office, public censure and reprimand, forfeiture

of no more than one - third of his or her salary per month for no

more than 12 months, civil penalty not to exceed $10,000, and

restitution of any pecuniary benefit received because of the

violation committed. See § 112.317(1)(a), Fla. Stat.

131. A primary purpose of civil penalties is to deter

misconduct by securing obedience to the law. Tull v. United

St ates , 481 U.S. 412 (1987); see also Hudson v. United

States , 522 U.S. 93 (1997) ( “ all civil penalties have some

deterrent effect . ” ).

132. In this case, the only violation supported by clear

and convincing evidence was Respondent’s violation of the anti -

ne potism provision of section 112.3135. P roof for that

violation did not require a showing that Respondent intended to

violate the law . I n fact, the evidence otherwise showed that

Respondent received legal advice prior to her vote opining that

she was perm itted to vote for her cousin . While Respondent’s

vote technically violated the anti - nepotism provision , u nder the

circumstan ces, a substantial penalty is not justified. Rather,

a nominal penalty , without censure or reprimand , is appropriate.

R ECOMMENDATI ON

Based on the foregoing Finding s of Fact and Conclusions of

Law, it is:

RECOMMENDED that a Final Order and Public Report be entered

finding that Respondent, Wanda Range , violated s ection 112.31 3 5,

Florida Statutes, and recommending the imposition of a nominal

civil penalty of $1.00 for that violation , and further finding

that Respondent Wanda Range did not violate sections 1 12.313 ( 6 ) ,

or 112.3148(8) , Florida Statutes, as alleged in the Order

Finding Probable Cause.

DONE AND ENTERED this 8th day of Novem ber , 2019, in

Tallahassee, Leon County, Florida.

JAMES H. PETERSON, III

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 8th day of November , 2019.

ENDNOTES

1/ All references to the Florida Statutes and Florida

Administrative Code are to the current versions . A pplicable

portions o f the current laws and rules have not substantively

changed since the time of the alleged incidents forming the

basis of the case against Respondent.

2/ In CEO 13 - 7, the Commission opined that promotions or

advancements include raising an individual to a higher rank of

position of greater personal dignity or importance.

COPIES FURNISHED:

Melody A. Hadley, Esquire

Elizabeth A. Miller, Esquire

Office of the Attorney General

The Capitol, Plaza Level 01

Tallahassee, Florida 32399 - 1050

(eServed)

Millie Fulford, Agency Clerk

Florida Commission on Ethics

Post Office Drawer 15709

Tallahassee, Florida 32317 - 5709

(eServed)

Mark Herron, Esquire

Messer Caparello, P.A.

2618 Centennial Place

Post Office Box 15579

Tallahassee, Florida 32317

(eServed)

C . Ch ri stopher Anderson, III, General Co unsel

Florida Commission on Ethics

Post Office Drawer 15709

Tallahassee, Florida 32317 - 5709

(eServed)

Virlin dia Doss, Executive Di rector

Florida Commission on Ethics

Post Office Drawer 15709

Tallahassee, Florida 32 317 - 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 i ssue the Final Order in this case.