19-003178EC In Re: Wanda Range vs. *
 Status: Closed
Recommended Order on Friday, November 8, 2019.


View Dockets  
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.

1STATE OF FLORIDA

4DIVISION OF ADMINISTRATIVE HEARINGS

8IN RE: WANDA RANGE , Case Nos. 19 - 3176EC

1719 - 3177EC 19 - 3178EC

23Respondent . 19 - 3179EC

28/ 19 - 3180EC

32RECOMMENDED ORDER

34An admi nistrative hearing was conducted in this case on

44August 12 , 2019, in Tallahassee, Florida, before James H.

53Peterson, III, Administrative Law Judge with the Division of

62Administrative Hearings (DOAH).

65APPEARANCES

66For Advocate: Melody A. Hadley , Esquire

72Elizabeth A. Miller, Esquire

76Office of the Attorney General

81The Capitol , Plaza Level 01

86Tallahassee, Florida 32399 - 1050

91For Respondent: Ma rk Herron, Esquire

97Messer Caparello, P.A.

1002618 Centennial Place

103Post Office Box 15579

107Tallahassee, Florida 32317

110STATEMENT OF THE ISSUE S

115The issue s for determination are :

122Whether Respondent violated s ection 112.3135, Florida

129Statutes, 1/ by voting on the appointment and/or advocating

138for the appointment of her relative to a positi on within

149her agency and/or her agency voting to appoint and/or

158advance her relative and , if so, what is the appropriate

168penalty?

169Whether Respondent violated s ection 112.313(6),

175Florida Statutes, by using her position to appoint her

184relative to the positio n of City of Midway Mayor Pro Tem

196and , if so, what is the appropriate penalty?

204Whether Respondent violated s ection 112.313(6),

210Florida Statutes, by using a City of Midway - owned vehicle

221and/or City of Midway - issued gasoline credit card for

231personal use and , if so, what is the appropriate penalty?

241Whether Responden t violated s ection 112.3148(8),

248Florida Statutes, by failing to report the gift of the

258personal use of the City of Midway - owned vehicle and/or the

270City of Midway - issued gasoline credit card and , if so, what

282is the appropriate penalty?

286PRELIMINARY STATEMENT

288On April 17, 2019 , the Florida Commission on Ethics

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

305O rder f inding p robable c ause (Order Finding Probable Cause) that

318Respondent, Wan da Range , as a Midway City Councilmember and/or

328Mayor , violated s ection s 112.3 1 3 5 , 112.313(6), and 112.3148(8) .

341The case s were forwarded to the Division of Administrative

351Hearings on June 11, 2019 , as five separate cases, which were

362given DOAH Case No s . 19 - 3176EC, 19 - 3177EC, 19 - 3178EC, 19 - 3179EC,

380and 19 - 3180EC .

385Upon assignment of the five cases, the undersigned

393entered a n Order of Consolidation on June 18, 2019 ,

403consolidating the cases . The fi nal hearing was scheduled to

414be heard August 12 and 13, 2019.

421The hearing commenced as scheduled on August 12, 2019. At

431the hearing, the Commissio n presented the testimony of

440Respondent ; Lamar Kirkland ; Tammy Knight ; Leslie Steele ; Grayden

448Schafer ; Ronald Colston ; and Beau Jackson. The Commi ssion

457offered 12 exhibits , which were received into evidence as

466Exhibits A - 1 through A - 3, A - 5, A - 7 through A - 10, A - 12, and

488A - 14 through A - 16. Respondent’s testimonial evidence was

499presented through her testimony and cross - examination of

508witnesse s call ed during the presentation of the Commission’s

518case - in - chief . Respondent also offered the deposition

529transcript of Anthony Thomas, in lieu of live testimony, which

539was received into evidence as Exhibit R - 6, and Respondent

550offered five additional exhibits received into evidence as Exhibits R - 1 through R - 5.

566The proceedings were recorded and a transcript was ordered.

575A two - volume T ranscript of the hearing was filed on

587September 16, 2019. By agreement, the parties were given until

597October 9, 2019, to file pr oposed recommended orders. Both

607parties timely filed their respective Proposed Recommended

614Orders, which have been considered in preparing this Recommended

623Order.

624FINDINGS OF FACT

6271. At all material times, Respondent served as a me mber of

639the Midway City Council (City Council). She was initially

648appointed to the City Council in 2000 and served until 2003.

659She was subsequently elected to the City Council in 201 5 and

671served until May of 2019. Respondent became the Mayor of the

682City of Midway in May of 20 17.

6902. As a member and/or m ayor of the City Council,

701Respondent is subject to article II, s ection 8, Florida

711Constitution, and the requirements of part III, c hapter 112,

721Florida Statutes, Code of Ethics .

7273. In January 2018, Respondent attended a nd recei ved

737ethics training from the Florida League of Cities. That

746t raining included information on and examples of nepotism,

755misuse of position, and the recei pt and disclosure of gifts.

766It also included information about the Commission issuing

774advisory opinion s and how to contact the Commission.

783Nepotism Allegation

7854. The form of government the City of Midway ( the City)

797provided under its Charter is the "Council - Manager Government , ”

808under which a ll powers of the City are vested in an elected

821council. The C i ty Council consists of five citizens who are

833residents of the City and electors eligible to vote in the City

845elections.

8465. F rom its members, the City Council elects a Mayor and

858Mayor Pro - Tem. The election of the Mayor and Mayor Pro - Tem

872occurs at the firs t regular council meeting after the City

883election.

8846. According to the Midway City Charter, the Mayor

893presides at all meetings of the City Council and performs other

904duties consistent with the office as imposed or designated by

914the City Council. The May or has a voice and vote in the

927proceedings of the City Council. The Mayor is ref erred to as

939Mayor - Councilmember in the execution of any legal instruments or

950writing or when functioning to meet other duties arising from

960the general laws of Florida or from the City Charter . The Mayor

973is recognized as the head of C ity government for all ceremonial

985purposes, for service of process, execution of contracts, deeds

994and other documents. The Mayor may take command of the police

1005and govern the C ity by proclamation during the times of grave

1017public danger or emergency and the Mayor has the power during

1028such times to appoint additional temporary officers and

1036patrolmen. The power and duties of the Mayor - Councilmember are

1047such as they are conferred upon him/her by the M idway City

1059Charter and no other.

10637. T he Midway City Charter provides that the Mayor shall:

1074“(a) See that all laws, provisions of this

1082charter, and acts of the council, subject to

1090his/her direction and supervision are

1095faithfully executed; (b) Submit the annual

1101budget message; (c) Summon the appropriate

1107law enforcement officers to suppress civil

1113disturbances and to keep law and other

1120during times of emergency; (d) Make such

1127other reports as the council may require

1134concerning the operations of city

1139departm ents, offices, and agencies subject

1145to his/her direction in time of emergency;

1152(e) Attend, preside, and vote at all council

1160meetings; (f) Sign contracts on behalf of

1167the city pursuant to the provisions of

1174applicable ordinances; (g) Be recognized as

1180the cit y official designated to represent

1187the city in all agreements with other

1194governmental entities or certifications to

1199other governmental entities as approved by

1205th e vote of the city council; (h) Annually

1214prepare a state of the city message, set

1222forth the age nda for all meetings of the

1231council, name committees of the council,

1237make recommendations of members for city

1243boards to the city council; (i) Perform such

1251other duties as specified in this charter or

1259may be required by council.”

12648. The p opulation of th e City is less than 4,000

1277residents.

12789. The City Council has land use and/ or zoning

1288responsibilities.

128910. In April 2016, there was a vacancy on the City Council

1301caused by a C ouncilmember departing prior to the end of that

1313C ouncilmember’s term. Responde nt’s first cousin, Sam Stevens,

1322wanted to be appointed to the City Council to fill the vacant

1334seat .

133611. Prior to any action on the matter, Respondent

1345telephoned Commission legal staff member, Grayden S c hafer ,

1354Esquire, and inquired whether she would be in violation of the

1365anti - nepotism statute if the Council appointed her first cousin

1376to serve the unexpired remainder of a departing Councilmember's

1385term.

138612. Following his telephone conversation with Respondent,

1393on April 21, 2016 , Attorney Schafer sent an e - mail to Respondent

1406at rangewanda@yahoo.com , summarizing Respondent’s inquiry and

1412the advice he provided. T he last page of that e - mail (Schafer’s

1426E - mail) states :

1431a public official can be held in violation

1439of the anti - nepotism provision if the

1447appointm ent is made by the collegial body on

1456which she serves, even if she did not

1464participate in the appointment. Given the

1470foregoing, it appears that you can be held

1478in violation of the anti - nepotism statute

1486not only if you directly participate or

1493advocate for your first cousin's appointment

1499but also if the City Council decides on its

1508own to appoint him, regardless of whether

1515you vote or participate.

151913. According to Respondent , she did not receive the

1528Schafer E - mail in 2016 and did not see it until after the filing

1543of the complaints initiating this case against Respondent.

155114. Regardless of the timing of Respondent’s receipt of

1560Schafer’s E - mail, the evidence is persuasive that the topic was

1572discussed between R espondent and Attorney Schafer , and that, a s

1583a res ult of her telephone conversation with Attorney Schafer in

1594April 2016 , Respondent understood that, because of her kinship

1603with Sam Stevens, she could not vote to appoint or advocate to

1615appoint Sam Stevens to the City Council. She also was aware

1626that, even if she recused herself from voting or participating

1636in the discussion to appoint Sam Stevens to the City Council, if

1648the City Council voted to appoint her first cousin to the vacant

1660seat, she would be in violation of the anti - nepotism provision .

167315. Afte r her conversation with Attorney Schafer , in

1682April 2016 , Respondent advised the City Council of her research

1692and that she had contacted the Commission to inquire as to

1703whether she could vote to appoint her cousin to the City

1714Council. She explained that sh e could not and would have to

1726resign if he was appointed, even if she did not participate in

1738the vote.

174016. Sam Stevens was not appointed to fill the vacant City

1751Council seat in 2016.

175517. The next year, Sam Stevens was elected to the City

1766Council during t he April 2017 municipal election. He was not

1777elected or appointed by the City Council, but rather was elected

1788by City citizens voting in the election.

179518. The following month, at its May 4, 2017, meeting, the

1806City Council considered the issue of electing a Mayor and Mayor

1817Pro - Tem as provided by the City Charter.

182619. At that meeting , Councilman Colston asked if it was

1836legal for relatives to vote for each other. The minutes of the

1848City Council for that date indicate that “Interim City Attorney

1858Thomas ex plained he had heard the rumor and did research and it

1871is legal.”

187320. Contrary to the City Council minutes, i n his

1883deposition testimony , City Attorney Thomas denied that he gave

1892that advice , but rather explained that he opined that Respondent

1902and Council man Sam Stevens could serve together on the City

1913Council, but could not promote or advocate for one another.

192321. Despite his denial, during his interview with the

1932Commission’s investigator, City Attorney Thomas “recalled

1938researching the matter and advisi ng R espondent that it was not a

1951voting conflict for her to vote to appoint her cousin to serve

1963as mayor pro tem."

196722. Considering the conflicting evidence , it is found that

1976the preponderance demonstrates that the City Attorney advised

1984that it was not a v oting conflict for r elatives to vote for each

1999other for Mayor and Mayor Pro - Tem.

200723. Respondent did not reveal her 2016 conversation with

2016Attorney Schafer to the City Council on May 4, 2017, nor did she

2029provide a copy of Schafer’s E - mail dated April 21, 2 016, to

2043either the City Council or the City Attorney prior to the City

2055Council’s votes for Mayor and Mayor Pro - Tem.

206424. However, a t the May 4, 2017, City Council meeting, a

2076citizen confronted Respondent with a copy of Schafer’s E - mail,

2087reading portions of Schafer ’s E - mail aloud.

209625. Respondent testified that she did not acknowledge an

2105ethical dilemma regarding Attorney Schafer ’s opinion because she

2114believed it addressed appointment as opposed to election, and

2123her cousin had been elected a year later , no t appointed .

213526. Schafer’s E - mail does not address the situation in

2146which both Respondent and her first cousin are elected members

2156of the City Council and whether Respondent can vote to elect him

2168as the Mayor Pro - Tem in that context.

217727. At that meeting, Respondent nominated herself to serve

2186as Mayor. Her nomination was seconded by Councilman Smith.

2195Respondent was elected as Mayor when t he City Council voted

2206three to two for Respondent to serve as Mayor with Councilman

2217Smith, Councilman Sam Stevens , and Respondent voting “yes , ” and

2227Councilman Ronald Colston and Councilwoman Carolyn Francis

2234voting “no.”

223628. Respondent, as the Mayor, received an $800 stipend ,

2245which is $100 more than the other councilmembers.

225329. At that same May 4, 2016 , meeting, Council man Colston

2264nominated Councilwoman Francis to serve as Mayor Pro - Tem. That

2275nomination failed two to three , with Respondent, Councilman

2283Smith , an d Councilman Stevens voting “no . ” Councilman Smith

2294then nominated Councilman Stevens to serve as Mayor Pr o - Tem .

2307The City Council voted three to two for Councilman Stevens to

2318serve as Mayor Pro - Tem with Respondent, Councilman Stevens, and

2329Cou n cilman Smith voting “yes,” and Councilman Ronald Colston and

2341Councilwoman Carolyn Francis voting “ no. ”

234830. According to the City Charter, t he Mayor P ro - T em :

2363“shall preside over the meetings of the

2370council during the absence of the mayor -

2378councilmember, and in general in the absence

2385or the incapacity of the mayor -

2392councilmember, he/she shall do [sic] per form

2399those acts and th ings provided in this

2407Chapter to be done by the mayor -

2415councilmember. Nothing contained herein

2419shall be construed as to preclude the member

2427succeeding himself or herself as Mayor -

2434Council member.”

243631. T he City provides no additional compensation for a

2446Cou ncilmember serving as Mayor Pro - Tem .

2455Vehicle Use and Gift Disclosure

246032. The City ha s two vehicles. One is a white Ford Taurus

2473that h as air conditioning (Vehicle) . The other is a white Ford

2486Taurus with a red stripe that d oes not hav e air conditioning.

249933. Respondent was given a 2002 MPV Mazda Van by her

2510daughter , Temika Smith, on Mother’s Day in 2016 .

251934. While serving as M ayor, Respondent had use of the

2530Vehicle for personal use.

253435. Respondent began using the V ehicle in September or

2544Oct ober 2017 fo llowing a hurricane and had access to the Vehicle

2557until she st opped using it in May of 2019. During this time,

2570t he V ehicle was generally parked on property adjacent to

2581Respondent ’s residence . While Respondent had a set of keys to

2593the V ehicle, there was a nother set of keys at the City Hall.

260736. In addition to Respondent’s access, other city

2615employees or city council members could use the V ehicle. Former

2626City Manager Steele used the V ehicle on occasion during the time

2638that Respondent had access to the Veh icle. When former City

2649Ma nager Steele wanted to use the V ehicle, she would pick it up

2663from Respondent ’s residence and return it to City Hall.

267337. Respondent used the Vehicle for a variety of City -

2684r elated purposes . She used it to travel to Florida Leagu e of

2698Cities’ conferences. In addition, she used the V ehicle to

2708attend events in Midway, in Gadsden County, and in Tallahassee,

2718including meetings with the City’s lobbyist and members of the

2728Florida Legislature, as part of her duties and responsibilities

2737a s Mayor . Respondent was also observed driving the V ehicle to

2750meetings at the City Hall.

275538. Respondent’s personal use of the Vehicle included , but

2764was not limited to, traveling roundtrip between Midway and

2773Tallahassee. S he may have had her daughter in the V ehicle o n

2787two or three occasions, and on occasion, drove the V ehicle to

2799her daughter’s house in Tallahassee .

280539. On one of th e occasions when Respondent drove the

2816Vehicle to her daughter’s house in Tallahassee , which occurred

2825on March 15, 2018 , Res pondent had a run - in with a Midway

2839resident who had followed Respondent to her daughter’s house .

2849The Mid way Resident took pictures of the Vehicle at Respondent’s

2860daughter’s house and also the Mazda MPV van , which was without a

2872license plate. On that occa sion, Respondent had gone to check

2883on the house because her daughter was out of town.

289340. At the final hearing, Respondent admitted that there

2902was a time when the Mazda MPV was in the shop a lot, and, since

2917she had access to the Vehicle, she turned in th e Mazda’s tag to

2931save on insurance payments .

293641. On another occasion in 2018, Respondent was stopped by

2946a Gadsden County Deputy Sheriff in Midway after midnight for

2956having a tag light out and the incorrect tag on the V ehicle.

2969Respondent had been returnin g from Tallahassee. No citation was

2979issued with respect to that stop.

298542. Other examples presented at the hearing illustrating

2993Respondent’s use of the Vehicle included her transporting a

3002child from Midway to Florida High in Tallahassee , taking a

3012Midway resident from Midway to Tallahassee to drop him at his

3023place of employment , and taking an individual to Liberty County

3033to retrieve that person’s vehicle left when evacuating because

3042of a hurricane. While providing such ac c ommodations is not

3053listed within Respondent’s responsibilities as Mayor or

3060Councilmember, a rguably, they serve d a public purpose .

307043. While Respondent had access and use of the Vehicle ,

3080the City did not have a vehicle - use policy.

309044. The evidence indicate s that former City manager Ford

3100also used a City - owned vehicle for personal use.

311045. Former City Manager Steele could not recall if any

3120other city employees or city council members had used the

3130Vehicle.

313146. Respondent testified that employees of the City’s

3139public works department mig ht also have used the V ehicle.

315047. City Councilman Ron Colston testified that he never

3159used the V ehicle.

316348. At the May 3, 2018 , Midway City Council meeting ,

3173Councilman Co lston publicly requested th at Respondent stop

3182driving the V ehicle , stating that c itizens had approached him

3193with concerns about Respondent driving the V ehicle.

320149. Minute s of that City Council meeting indicate that

3211Councilman Coston commented that he had received some calls from

3221citizens concerned with Respondent driving the City - owne d

3231vehicle and suggested that she should park the V ehicle because

3242of the number of complaints and that it is a liability.

325350. In response to that comment, City Attorney Thomas

3262suggested that the City Council come up with some policy and

3273procedures on the u se of C ity vehicles.

328251. Respondent did not stop driving the Vehicle at the

3292time of Councilman Colston’s request . B y the end of

3303Octob er 2018, the V ehicle needed a tune - up and to have its

3318brakes checked.

332052. In October 2018, Respondent started using a rental car

3330when she got a job with the Federal Emergency Management Agency

3341( FEMA ) for debris monitoring. Respondent was not reimbursed by

3352FEMA for the rental.

335653. In January 2019, Respondent purchased a new vehicle, a

33662019 Mitsubishi G4 Mirage .

337154. At the time of the final hearing in this case, t he

3384City was in the process of developing a policy regarding the use

3396of C ity vehicles and City Fuel Cards.

340455. Respondent did not report the use of the vehicle on

3415her income taxes and did not file a gift disclos ure to report

3428her pe rsonal use of the City - owned vehicle as a gift .

3442Fuel Card Use and Gift Disclosure

344856. Respondent used a City - issued Pilot Travel Center

3458credit card for gasoline for the Vehicle.

346557. City - issued Pilot Travel Center credit card #007

3475(C ity Fuel Card) was assigned to the Vehicle . The City Fuel

3488Card was the only one numbered #007 and it remained in the

3500V ehicle.

350258. While s ome of the fuel purchases charged to the City

3514Fuel Card were related to City business , Respon d ent acknowledged

3525that fuel was also purchased using the City Fuel Card during her

3537personal use of the Vehicle .

354359. Records of City Fuel Card #007 from November of 2017

3554through December of 2018 show the following charges:

356260. November 2017 :

3566- November 1, 2017 – 623 Quincy FL - $33.67

3576- November 5 , 2017 - 425 Midway FL - $20.71

3586- November 5, 2017 - 4556 Wildwood FL - $20.00

3596- November 8, 2017 - 4556 Wildwood FL - $18.30

3606- November 9 , 2017 - 623 Quincy FL - $24.72

3616- November 13, 2017 - 623 Quincy FL - $21.77

3626- Novembe r 13, 2017 - 623 Quincy FL - $35.42

3637- November 20, 2017 - 623 Quincy FL - $42.68

3647- November 20, 2017 - 623 Quincy FL - $30.78

3657- November 27, 2017 - 623 Quincy FL - $32.00

3667Respondent traveled on City business to and from Orlando,

3676Florida , from Nov ember 5 through November 8, 2017. As to the

3688multiple charges on November 13, 2017 , and November 20, 2017,

3698Respondent explained that she traveled on City business because

3707“we were giving out turkeys during that time.”

371561. December 2017 :

3719- December 2, 2017 – 623 Quincy FL - $30.91

3729- December 12, 2017 – 623 Quincy FL - $34.06

3739- December 15, 2017 – 425 Midway FL - $30.27

3749- December 22, 2017 – 425 Midway FL - $27.03

375962. January 2018 :

3763- January 9, 2018 – 425 Midway FL - $33.82

3773- January 17, 2018 – 425 Midway FL - $22.03

3783- January 18, 2018 - 4556 Wildwood FL - $18.00

3793- January 21, 2018 - 4556 Wildwood FL - $8.20

3803- January 22, 2018 - 425 Midway FL - $15.50

3813- January 23, 2018 - 425 Midway FL - $8.57

3823- January 24, 2018 - 425 Midway FL - $10.01

3833- January 26, 2018 - 425 Midway FL - $24.00

3843Respondent traveled on City business to and from Orlando,

3852Florida , during the period from January 18 through 22, 2018.

386263. February 2018 :

3866- February 2, 2018 – 425 Midway FL - $34.26

3876- Februar y 15, 2018 – 425 Midway FL - $32.00

3887- February 22, 2018 – 425 Midway FL - $30.01

389764. March 2018 :

3901- March 14, 2018 - 425 Midway FL - $31.00

3911- March 28, 2018 – 425 Midway FL - $32.07

392165. April 2018 :

3925- April 7, 2018 – 425 Midway FL - $25.00

3935- A pril 17, 2018 – 425 Midway FL - $35.44

3946- April 28, 2018 – 425 Midway FL - $7.52

395666. May 2018 :

3960- May 14, 2018 – 425 Midway FL - $37.01

3970- May 20, 2018 – 425 Midway FL - $29.02

3980- May 26, 2018 – 425 Midway FL - $41.00

399067. June 2018 :

3994- June 1, 2018 – 4556 Wildwood FL - $25.03

4004- June 2, 2018 – 4556 Wildwood FL - $18.02

4014- June 4, 2018 – 425 Midway FL - $20.00

4024- June 9, 2018 – 425 Midway FL - $31.00

4034- June 15, 2018 – 425 Midway FL - $28.04

4044- June 29, 2018 – 425 Midway FL - $33.00

4054Re spondent traveled on City business to and from Orlando,

4064Florida during the period fro m May 31, 2018 , through

4074June 2, 2018 .

407868. July 2018 :

4082- July 18, 2018 - 425 Midway FL - $35.06

409269. August 2018 :

4096- August 3, 2018 – 425 Midway FL - $21.08

4106- August 14, 20 18 - 622 St. Lucie FL - $20.01

4118- August 14, 2018 - 091 Jacksonville - $24.00

4127- August 19, 2018 - 624 Dade City FL - $27.02

4138- August 20, 2018 - 425 Midway FL - $19.33

4148- August 24, 2018 - 425 Midway FL - $33.01

4158Respondent traveled on City business to and from Hollywood,

4167Florida during the perio d from August 14 through 18, 2018.

417870. September 2018 :

4182- September 4, 2018 – 425 Midway FL - $37.00

4192- September 13, 2018 – 425 Midway FL - $35.50

4202- September 29, 2018 – 425 Midway FL - $36.01

421271. October 2018 :

4216- October 10, 2018 – 623 Quincy FL - $39.07

422672. November 2018 :

4230- November 21, 2018 – 623 Quincy FL - $33.07

424073. December 2018 :

4244- December 5, 2018 – 623 Quincy FL - $18.80

425474. In addition to the fact that s ome of Respondent ’s use

4267of the City Fuel Card to put fuel in the Vehicle included her

4280personal use of the Vehicle , Respondent used the City Fuel Card

4291to purchase gasoline for the Vehicle when she was using the

4302V ehicle for travel on City business, including travel to Florida

4313League of Cities’ conferen ces in November of 2017, as well as

4325while traveling on City business in and around Midway and

4335Gadsden County, and to and from Tallahassee.

434275. Respondent also used the City Fuel Card to pay for

4353gasoline while traveling on City business to attend Florida

4362L eague of Cities ’ conferences in a rental vehicle. These

4373conferences occurred January 18 through 22, 2018 ; May 31 through

4383June 2, 2018; and August 14 through 18, 2 018.

439376. There was no evidence presented that Respondent used

4402the City Fuel Card to purchase anything othe r than fuel for the

4415V ehicle or fuel for a rental car while on business for the City .

443077. As the City Fuel Card was kept in the V ehicle, o ther

4444City Council members or City employees would have had access to

4455the City Fuel Card when they were d riving the V ehicle.

446778. Respondent did not file a gift disclosure to report

4477her use of the City Fuel Card to put gasoline in the Vehicle on

4491those occasions when she used the Vehicle for personal use .

4502CONCLUSIONS OF LAW

450579. The Division of Administrative Hearings has

4512jurisdiction over the parties and the subject matter of this

4522proceeding. § § 120.569 and 120.57(1), Fla. Stat.

453080. Section 112.322 and Florida Administrative Code

4537Rule 34 - 5.0015 authorize the Commission to conduct

4546investigations and to make p ublic reports on complaints

4555concerning violations of the Code of Ethics for Public Officers

4565and Employees found in part III, c hapter 112 .

457581. The burden of proof, absent a statutory directive to

4585the contrary, is on the party asserting the affirmative of t he

4597issue s in the proceedings. Balino v. Dep’t of HRS , 348 So.

46092d 349 (Fla. 1st DCA 1977). In this proceeding, it is the Commission, through its Advocate, that is asserting the

4629affirmative: that Respondent violated s ections 112.3135 ,

4636112.313(6) [two count s] , a nd 112.3148(8) . P roceedings , which

4647seek recommended penalties against a public officer or employee ,

4656require proof of the alleged violation(s) by clear and

4665convincing evidence. See Latham v. Fl a . Comm’n on Ethics ,

4676694 So. 2d 83 (Fla. 1st DCA 1997). Therefore, the burden of establishing by clear and convincing evidence the elements of

4697Respondent’s violation s is on the Commission .

470582. As noted by the Supreme Court of Florida:

4714[C]lear and convincing evidence requires

4719that the evidence must be fou nd to be

4728credible; the facts to which the witnesses

4735testify must be distinctly remembered; the

4741testimony must be precise and explicit and

4748the witnesses must be lacking in confusion

4755as to the facts in issue. The evidence must

4764be of such weight that it prod uces in the

4774mind of the trier of fact a firm belief or

4784conviction, without hesitancy, as to the

4790truth of the allegations sought to be

4797established.

4798In Re Henson , 913 So. 2d 579, 590 (Fla. 2005)( quoting Slomowitz

4810v. Walker , 429 So. 2d 797, 800 ( Fla. 4th DC A 1983) ) . The

4826Supreme Court of Florida further explained that although the

4835“clear and convincing” standard requires more than a

4843“preponderance of the evidence,” it does not require proof

4853“beyond and to the exclusion of a reasonable doubt.” Id .

486483. Resp ondent is subject to the requirements of part III,

4875c hapter 112, the Code of Ethics for Public O fficers and

4887E mployees, for her acts and omissions during her tenure on the

4899Midway City Council.

4902Nepotism

490384. The nepotism prohibition under s ection 112. 31 3 5 (2 )(a)

4916provides:

4917A public official may not appoint, employ,

4924promote, or advance, or advocate for

4930appointment, employment, promotion, or

4934advancement, in or to a position in the

4942agency in which the official is serving or

4950over which the official exercises

4955juri sdiction or control any individual who

4962is a relative of the public official. An

4970individual may not be appointed, employed,

4976promoted, or advanced in or to a position in

4985an agency if such appointment, employment,

4991promotion, or advancement has been advocated

4997by a public official, serving in or

5004exercising jurisdiction or control over the

5010agency, who is a relative of the individual

5018or if such appointment, employment,

5023promotion, or advancement is made by a

5030collegial body of which a relative of the

5038individual is a member. However, this

5044subsection shall not apply to appointments

5050to boards other than those with land -

5058planning or zoning responsibilities in those

5064municipalities with less than 35,000

5070population. This subsection does not apply

5076to persons serving in a v olunteer capacity

5084who provide emergency medical, firefighting,

5089or police services. Such persons may

5095receive, without losing their volunteer

5100status, reimbursements for the costs of any

5107training they get relating to the provision

5114of volunteer emergency medi cal,

5119firefighting, or police services and payment

5125for any incidental expenses relating to

5131those services that they provide.

513685. The term “agency” as used in s ection 112.3135(2) is

5147defined to include a “city.” § 112.3135(1)(a), Fla. Stat.

515686. The term “public official” as used in s ection

5166112.3135(2) is defined as :

5171“Public official” means an officer,

5176including a member of the Legislature, the

5183Governor, and a member of the Cabinet, or an

5192employee of an agency in whom is vested the

5201authority by law, rule, or regulation, or to

5209whom the authority has been delegated, to

5216appoint, employ, promote, or advance

5221individuals or to recommend individuals for

5227appointment, employment, promotion, or

5231advancement in connection with employment in

5237an agency, including the aut hority as a

5245member of a collegial body to vote on the

5254appointment, employment, promotion, or

5258advancement of individuals.

5261§ 112.3135(1)(c), Fla. Stat.

526587. The term “collegial body” as used in s ection

5275112.3135(2) means “ a governmental entity marked by powe r or

5286authority vested equally in each of a number of colleagues. ”

5297§ 112.3135(1)(b), Fla. Stat.

530188. The term “relative” as used in s ection 112.3135(2) is

5312defined as follows:

5315“Relative,” for purposes of this section

5322only, with respect to a public official,

5329means an individual who is related to the

5337public official as father, mother, son,

5343daughter, brother, sister, uncle, aunt,

5348first cousin, nephew, niece, husband, wife,

5354father - in - law, mother - in - law, son - in - law,

5369daughter - in - law, brother - in - law, sister - in -

5383law, stepfather, stepmother, stepson,

5387stepdaughter, stepbrother, stepsister, half

5391brother, or half sister.

5395§ 112.3135(1)(d), Fla. Stat.

539989. Considering the above statutory criteria, i n order to

5409esta blish that Respondent violated s ection 112.3215 (2)(a) , the

5419f ollowing elements must be proved:

54251. Respondent must be a “public official”

5432as that term is defined by Section

5439112.3135(1)(b), Florida Statutes.

54422. Respondent must have appointed,

5447employed, promoted, or advanced, or

5452advocated for appointment, employment,

5456promotion, or advancement, in or to a

5463position in the agency in which the official

5471is serving or over which the official

5478exercises jurisdiction or control.

54823. The action taken by Respondent must have

5490been taken for an individual who is a

5498relative of the Respondent.

55024. In the case of municipalities with less

5510than a population of 35,000, it must be that

5520the agency in which the Respondent is

5527serving or over which Respondent exercises

5533jurisdiction or control has land planning

5539responsibilities.

554090. D uring the relevant time period Respondent served as a

5551me mber of the Midway City Council, she was a “public official.”

556391. Respondent acknowledged that Sam Stevens was her first

5572cousin.

557392. The evidence further established that Respondent voted

5581to elect Sam S tevens as Mayor Pro - Tem of the City of Midway.

559693. Although t he evidence established that the City of

5606Midway has a population of less than 35,000 , it further

5617established that the exemption for municipalities with

5624populations of less than 35,000 does not a pply because it was

5637shown that the City Council has land - planning responsibilities.

5647See § 112.3135(2 )( a ), Fla. Stat., quoted above.

565794. While t he evidence showed that Sam Stevens received no

5668additional compensation for serving as Mayor Pro - Tem , receipt o f

5680additional compensation is not required for a violation of

5689section 112.3135(2) . Rather, the statute prohibits a public

5698official from promoting or advancing a relative. As explained

5707by the Florida First District Court of Appeal “[t]o promote is

5718to exalt in station, rank, or honor . . . .” Slaughter v. City

5732of Jacksonville , 338 So. 2d 903, 804 (Fla. 1st DCA 1976) ; a ccord

5745Commission on Ethics Opinion ( CEO ) 13 - 7 (citing examples where

5758advancing occurs when there is an “enhancing” of the p ersonal

5769dignity an d importance of the position) .

577795. In this case, the Mayor Pro - Tem's responsibilities

5787include serving as chair of the City Council and other mayoral

5798activities in the absence of the M ayor.

580696. Respondent , as a member of a collegial body, voted on

5817the ele ction and/or advocated for the election of her relative,

5828Sam Stevens, to become M ayor Pro - Te m in the agency in which she

5844was serving or over which she exercise d jurisdiction or control.

585597. In addition, a collegial body may not appoint or elect

5866a relative of one of its members to a position regardless of

5878whether Respondent voted or not.

588398. While the prohibition of nepotism whether or not the

5893official participates in the decision to advance a relative may

5903seem harsh, i n CEO 95 - 12 , the Commission explained the history

5916of the current anti - nepotism language found in section

5926112.3135 (2)(a) :

5929We previously had opined that public

5935officials could not appoint their relatives

5941to uncompensated positions on advisory

5946boards, even where the relative of the

5953appointee abs tained from voting on the

5960appointment and did not otherwise advocate

5966the appointment. See CEO 92 - 50 and the

5975opinions cited therein. However, this

5980interpretation was stru ck down by the

5987Florida Supreme Court in City of Miami Beach

5995v. Galbut , 626 So. 2d 192 (1993), where the

6004Court construed Section 112.3135(2)(a),

6008Florida Statutes, to prohibit only

6013affirmative acts on the part of the public

6021official/relative. Thus, the Cour t opined

6027that Mr. Galbut was eligible for

6033reappointment to the city zoning board of

6040adjustment as long as his city commissioner

6047father - in - law abstained from voting and in

6057no way advocated [for] his reappointment.

6063After the Court's decision in Galbut , the

6070Legislature revisited Section

6073112.3135(2)(a), Florida Statutes, and

6077amended it during the 1994 legislative

6083session to read as follows:

6088A public official may not appoint, employ, promote, or advance, or advocate for

6101appointment, employment, promotion, or

6105advancement, in or to a position in the

6113agency in which he is serving or over which

6122he exercises jurisdiction or control any

6128individual who is a relative of the public

6136official. An individual may not be

6142appointed, employed, promoted, or advanced

6147in or to a position in an agency if such

6157appointment, employment, promotion, or

6161advancement has been advocated by a public

6168official, serving or exercising jurisdiction

6173or control over the agency, who is a

6181relative of the individual or if such

6188appointment, employme nt, promotion, or

6193advancement is made by a collegial body of

6201which a relative of the individual is a

6209member. However, this subsection shall not

6215apply to appointments to boards other than

6222those with land - planning or zoning

6229responsibilities in those municip alities

6234with less than 35,000 population .

6241[Section 112.3135(2)(a), Flori da Statutes,

6246(Supp. 1994)]

624899. In sum, the clear and convincing evidence proved that

6258Respondent violated the nepotism prohibition found in section

6266112.3135 (2)(a) when she voted to elect her first cousin as Mayor

6278Pro - Tem .

6282Alleged Misuse of Respondent’s Public Position to Promot e

6291Her Cousin

6293100. The Misuse of Public Position prohibition of the Code

6303of Ethics is found in s ection 112.31 3 ( 6 ) , which provides:

6317No public officer, employee of an agency, or

6325local government attorney shall corruptly

6330use or attempt to use his or her official

6339position or any property or resource which

6346may be within his or her trust, or perform

6355his or her official duties, to secure a

6363special privilege, benefit, or exemption for

6369himself, herself, or others. This section

6375shall not b e construed to conflict with

6383s. 104.31.

6385101. In order to esta blish that Respondent violated

6394s ection 112 .3215 , the following elements must be established by

6405clear and convincing evid ence :

64111. Respondent must have been a public

6418officer or employee.

64212. Respondent must have:

6425a. used or attempted to use his or her

6434official position or any property or

6440resou rces within his or her trust, or

6448b. performed his or her official

6454duties.

64553 . Respondent’s actions must have been

6462taken to secure a special privilege,

6468benefit , or exemption for him or herself or

6476others.

64774. Respondent must have acted corruptly,

6483that is, with wrongful intent and for the

6491purpose of benefiting him or herself or

6498ano ther person from some act or omission

6506which was inconsistent with the proper

6512performance of public duties.

6516102. The term “corruptly” as used in s ection 112.313(6) is

6527defined as follows:

6530“Corruptly” means done with a wrongful

6536intent and for the purpose of obtaining, or

6544compensating or receiving compensation for,

6549any benefit resulting from some act or

6556omission of a public servant which is

6563inconsistent with the proper performance of

6569his or her public duties.

6574§ 112.312(9), Fla. Stat.

6578103. A s used in s ection 112.313(6) , t he term “public

6590officer” is defined to include “any person elected or appointed

6600to hold office in any agency, including any person serving on an

6612advisory body.” § 112.313(1), Fla. Stat.

6618104. The evidence clearly established that Respondent was

6626a “public officer.” During the relevant time period, Respondent

6635served as a member of the City Council.

6643105. The evidence further convincingly showed that

6650Respondent performed her official duties when she voted at the

6660May 4, 2017 , City Council meetin g to elec t her first cousin, Sam

6674Stevens, as May or Pro - Tem of the City .

6685106. The evidence was insufficient, however, to clearly

6693and convincing ly demonstrate that Respondent secured a special

6702privilege, benefit , or exemption for her self or her cousin by

6713vo ting to elect him Mayor Pro - Tem. Rather, t he evidence

6726established that the post of being Mayor Pro - Tem under the Cit y

6740Charter is largely ceremonial. S ervice as Mayor Pro - Tem was

6752contingent upon the absence or inability of Respondent to

6761perform her duties . T he Mayor Pro - Tem received no additional

6774compensation.

6775107. While the statutory provision against misuse of

6783position does not restrict the privilege or benefit prohibited

6792under s ection 112.313(6) to an economic benefit, ( see , e.g. ,

6803Garner v. Commissio n on Ethics , 4 39 So. 2d 894, 895 (Fla. 2d

6817DCA 1983) ) , Respondent’s vote for her cousin for the ceremonia l

6829and contingent duties of the Mayor Pro - Tem without more, under

6841the circumstances of this case, does not weigh in favor of

6852finding a “special” benefit or priv i lege .

6861108. Further, the evidence was insufficient to show that

6870Respondent acted with the requisite “corrupt in tent.” To prove

6880this element, it must be shown that Respondent acted “ with

6891reasonable notice that her conduct was inconsistent with the

6900proper performance of her public duties and would be a violation

6911of the law or code of ethics in part III of chapter 112. ”

6925Blackburn v. State, Comm’n on Ethics , 589 So. 2d 431, 434

6936(Fla. 1st DCA 1991).

6940109. Rather than showing that Respondent had reasona ble

6949notice that it would be wrong to vote to elec t her cousin as

6963Mayor Pro - Tem, t he evidence showed that , prior to the vote,

6976Respondent sought advice from the City Attorney . T he City

6987Attorney advised Respondent that it was not a voting confli ct

6998for her to vote to elect her cousin .

7007110. T he Commission contends that Respondent ’s corrupt

7016intent was demonstrated by her failure to provide t he City

7027Attorney with a copy of Schafer’s E - mail . However, Schafer’s E -

7041mail was directed toward a different situation, n amely, the

7051appointment of Respondent’s cousin to fill a vacant City Council

7061seat . In contrast, t he vote at issue on May 4, 2018, was a vote

7077to elect Respondent’s cousin to a ceremonial position after he

7087had already been elected to the City Council by the citizenry .

7099Further, the evidence show ed that Schafer’s E - mail was brought

7111up and discussed at the Ma y 4, 2018, City Council meeting .

7124111. Considering the evidence, i t is concluded that it was

7135insufficient to clearly and convincing ly prove that Responden t

7145misused her po sition when she voted to elect her cousin to the

7158Mayor Pro - Tem position.

7163Alleged Misuse of Respondent’s Public Position by Using the

7172City Vehicle and Fuel Credit Card for her Personal Benefit

7182112. Consideration of whether Respondent misus ed her

7190public position in violation of section 112.313(6) , when she

7199used the City’s Vehicle and City Fuel Card for her personal

7210benefit , is a closer question t han Respondent’s vote to elect

7221her cousin.

7223113. Considering the elements to show a violation o f

7233section 112.313(6), once again, the evidence clearly established

7241that Respondent was a “public officer , ” as Respondent served as

7252a me mber of the City Council during the relevant time period.

7264114. Convincing evidence also established that

7270Respondent’s u se of the City’s Vehicle and the City Fuel Card

7282constituted use of property and resources within her trust .

7292115. Although Respondent used the Vehicle and City Fuel

7301Card for City business, she also used them for her personal

7312benefit. For over a year, Resp ondent had the pleasure,

7322convenience, and free use of the City’s air - conditioned V ehicle

7334for her person al use at the City’s expense.

7343116. The evidence also established, however, that while

7351Respondent was using the Vehicle and City Fuel Card, the City

7362had no policy wit h regard to their use. Prior to Respondent’s

7374use of the Vehicle, a former City Manager had used a city

7386vehicle for personal use . At the time of the final hearing, t he

7400City was still in the process of developing policies reg arding

7411the use of City vehicles and fuel cards.

7419117. While there was no evidence of a formal assignment of

7430the Vehicle to Respondent, as Mayor, it was understood by the

7441City Manager that the Vehicle was kept at Respondent’s

7450residence. Without a policy in place and consi dering

7459Respondent’s use of the Vehicle for City business intermittently

7468with personal use , the Vehicle was arguably an incident of

7478Respondent’s employment as Mayor.

7482118. T he Commission argues that the lack of a policy is

7494not a defense to a finding of corr upt intent, and points to

7507Respondent’s ethics training and her awareness that personal use

7516of City - paid postage w ould be wrong as evidence of Respondent’s

7529notice that her personal use of the Vehicle and City Fuel C ard

7542was prohibited. However, considering the City’s lack of a

7551policy regarding personal use , coupled with Respondent’s

7558official use of the Vehicle and City Fuel Card with intermittent

7569persona l use , a history of personal use of a city vehicle by a

7583former city manager , as well as the practice of al lowing the

7595Vehicle to be kept at Respondent’s home and leaving a fuel card

7607in the Vehicle for use by Respondent and other City employees ,

7618that argument is rejected. Rather, considering the evidence, it

7627is concluded that it is insufficient to clearly and c onvincingly

7638prove that Respondent had reasonable notice or intent that her

7648conduct was inconsistent with the proper performance of her

7657public duties or would be a violation of the law or code of

7670ethics. See Blackburn .

7674Alleged Failure to Report Use of the City Vehicle and City

7685Fuel Card as Gifts

7689119. Sectio n 112.3148(8) provides:

7694(8)(a) Each reporting individual or

7699procurement employee shall file a statement

7705with the Commission on Ethics on the last

7713day of each calendar quarter, for the

7720previous calend ar quarter, containing a list

7727of gifts which he or she believes to be in

7737excess of $100 in value, if any, accepted by

7746him or her, for which compensation was not

7754provided by the donee to the donor within 90

7763days of receipt of the gift to reduce the

7772value to $1 00 or less, except the following:

77811. Gifts from relatives.

77852. Gifts prohibited by subsection (4) or s.

7793112.313(4).

77943. Gifts otherwise required to be disclosed

7801by this section.

7804120. The term “reporting individual” as used in s ection

7814112.3148(8) is defined, in pertinent part, as :

7822any individual, including a candidate upon

7828qualifying, who is required by law, pursuant

7835to s. 8, Art. II of the State Constitution

7844or s. 112.3145, to file full or limited

7852public disclosure of his or her financial

7859interes ts or any individual who has been

7867elected to, but has yet to officially assume

7875the responsibilities of, public office.

7880§ 112.3148(1)(d ), Fla. Stat.

7885121. In Florida, m ayors and elected municipal council

7894members are “local officer s ” who are required to an nually file

7907public disclosures of their financial interests.

7913See § § 112.3145(1)(a)3. and 112.3145(2)(b) , Fla. Stat.

7921122. The term “gift” as used in s ection 112.3148(8) is

7932defined as :

7935(12) (a) “Gift,” for purposes of ethics in

7944government and financial dis closure required

7950by law, means that which is accepted by a

7959donee or by another on the donee’s behalf,

7967or that which is paid or given to another

7976for or on behalf of a donee, directly,

7984indirectly, or in trust for the donee’s

7991benefit or by any other means, fo r which

8000equal or greater consideration is not given

8007within 90 days, including:

80111. Real property.

80142. The use of real property.

80203. Tangible or intangible personal

8025property.

80264. The use of tangible or intangible

8033personal property.

80355. A preferential r ate or terms on a

8044debt, loan, goods, or services, which

8050rate is below the customary rate and is

8058not either a government rate available

8064to all other similarly situated

8069government employees or officials or a

8075rate which is available to similarly

8081situated memb ers of the public by

8088virtue of occupation, affiliation, age,

8093religion, sex, or national origin.

80986. Forgiveness of an indebtedness.

81037. Transportation, other than that

8108provided to a public officer or

8114employee by an agency in relation to

8121officially approv ed governmental

8125business, lodging, or parking. 8. Food or beverage.

81339. Membership dues.

813610. Entrance fees, admission fees, or

8142tickets to events, performances, or

8147facilities.

814811. Plants, flowers, or floral

8153arrangements.

815412. Services provided by per sons

8160pursuant to a professional license or

8166certificate.

816713. Other personal services for which

8173a fee is normally charged by the person

8181providing the services.

818414. Any other similar service or thing

8191having an attributable value not

8196already provided for i n this section.

8203(b) “Gift” does not include:

82081. Salary, benefits, services, fees,

8213commissions, gifts, or expenses

8217associated primarily with the donee’s

8222employment, business, or service as an

8228officer or director of a corporation or

8235organization.

82362. Ex cept as provided in s. 112.31485,

8244contributions or expenditures reported

8248pursuant to chapter 106, contributions

8253or expenditures reported pursuant to

8258federal election law, campaign - related

8264personal services provided without

8268compensation by individuals

8271volun teering their time, or any other

8278contribution or expenditure by a

8283political party or affiliated party

8288committee.

82893. An honorarium or an expense related

8296to an honorarium event paid to a person

8304or the person’s spouse.

83084. An award, plaque, certificate, or

8314similar personalized item given in

8319recognition of the donee’s public,

8324civic, charitable, or professional

8328service.

83295. An honorary membership in a service

8336or fraternal organization presented

8340merely as a courtesy by such

8346organization.

83476. The use of a pub lic facility or

8356public property, made available by a

8362governmental agency, for a public

8367purpose.

83687. Transportation provided to a public

8374officer or employee by an agency in

8381relation to officially approved

8385governmental business.

83878. Gifts provided directly or

8392indirectly by a state, regional, or

8398national organization which promotes

8402the exchange of ideas between, or the

8409professional development of,

8412governmental officials or employees,

8416and whose membership is primarily

8421composed of elected or appointed public

8427o fficials or staff, to members of that

8435organization or officials or staff of a

8442governmental agency that is a member of

8449that organization.

8451§ 112.312(12) (a) & (b) , Fla. Stat.

8458123. Section 112.3148(7) , regarding valuation of certain

8465specific gifts , provides in pertinent parts:

8471(d) Transportation provided in a private

8477conveyance shall be given the same value as

8485transportation provided in a com parable

8491commercial conveyance.

8493* * *

8496(i) Except as otherwise specified in this

8503section, a gift shall be val ued on a per

8513occurrence basis.

8515124. As mayor and a member of the City Council, Respondent

8526was a “reporting individual” required to file annual public

8535disclosures of her financial interests pursuant to

8542section 112.3145 .

8545125. As noted earlier, Respondent’s use of the Vehicle and

8555City Fuel Card could arguably be characterized as an incident of

8566Respondent’s employment as Mayor , and therefore, not a gift.

8575See § 112.3148(8) (b)1. , Fla. Stat., quoted above.

8583126. However, without the argument that the use was an

8593incide nt of Respondent’s employment, t he evidence convincingly

8602established that Respondent accepted a gift in the form of

8612“[t]ransportation, other than that provided to a public officer

8621or employee by an agency in relation to officially approved

8631governmenta l bus iness, lodging, or parking , ” see section

8641112.3148(12)(a)7 . , quoted above, when she used the Vehicle and City Fuel Card for her personal , non - official business ,

8661transportation .

8663127. In addition to her personal use, however, t he

8673evidence also established th at Respondent used the Vehicle and

8683City Fuel Card for official business. Given Respondent’s

8691intermittent business and personal use s , the evidence was

8700insufficient to establish continuous personal use for over a

8709year, as argued by the Commission.

8715128. M oreover, considering Respondent’s personal use on a

8724“per occurrence” basis, see section 112.3148(7) (i), quoted

8732above, 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

8767specific instances, there was no evidence showing which days

8776Respondent drove the Vehicle or where she drove it . There was

8788no evidence showing how many miles Respondent drove the vehicle

8798on any given day. Evi dence that the V ehicle was parked at

8811property located adjacent to Respondent’s residence is not

8819determinative that she exclusively used the Vehicle , especially

8827in light of evidence that others used the V ehicle on occasion ,

8839picking it up from that location .

8846129. Considering the facts , circumstances , and evidence

8853presented in this case , together with applicable law , it is

8863concluded that Respondent did not violate the gift disclosure

8872requirement s of section 112.3148(8).

8877PENALTY

8878130. P enalties available for p ublic officer s who violate

8889the Code of Ethics include impeachment, removal from office,

8898suspension from office, public censure and reprimand, forfeiture

8906of no more than one - third of his or her salary per month for no

8922more than 12 months, civil penalty not to exceed $10,000, and

8934restitution of any pecuniary benefit received because of the

8943violation committed. See § 112.317(1)(a), Fla. Stat.

8950131. A primary purpose of civil penalties is to deter

8960misconduct by securing obedience to the law. Tull v. United

8970St ates , 481 U.S. 412 (1987); see also Hudson v. United

8981States , 522 U.S. 93 (1997) ( “ all civil penalties have some

8993deterrent effect . ” ).

8998132. In this case, the only violation supported by clear

9008and convincing evidence was Respondent’s violation of the anti -

9018ne potism provision of section 112.3135. P roof for that

9028violation did not require a showing that Respondent intended to

9038violate the law . I n fact, the evidence otherwise showed that

9050Respondent received legal advice prior to her vote opining that

9060she was perm itted to vote for her cousin . While Respondent’s

9072vote technically violated the anti - nepotism provision , u nder the

9083circumstan ces, a substantial penalty is not justified. Rather,

9092a nominal penalty , without censure or reprimand , is appropriate.

9101R ECOMMENDATI ON

9104Based on the foregoing Finding s of Fact and Conclusions of

9115Law, it is:

9118RECOMMENDED that a Final Order and Public Report be entered

9128finding that Respondent, Wanda Range , violated s ection 112.31 3 5,

9139Florida Statutes, and recommending the imposition of a nominal

9148civil penalty of $1.00 for that violation , and further finding

9158that Respondent Wanda Range did not violate sections 1 12.313 ( 6 ) ,

9171or 112.3148(8) , Florida Statutes, as alleged in the Order

9180Finding Probable Cause.

9183DONE AND ENTERED this 8th day of Novem ber , 2019, in

9194Tallahassee, Leon County, Florida.

9198JAMES H. PETERSON, III

9202Administrative Law Judge

9205Division of Administrative Hearings

9209The DeSoto Building

92121230 Apalachee Parkway

9215Tallahassee, Florida 32399 - 3060

9220(850) 488 - 9675

9224Fax Filing (850) 921 - 6847

9230www.doah.state.fl.us

9231Filed with the Clerk of the

9237Division of Administrative Hearings

9241this 8th day of November , 2019.

9247ENDNOTES

92481/ All references to the Florida Statutes and Florida

9257Administrative Code are to the current versions . A pplicable

9267portions o f the current laws and rules have not substantively

9278changed since the time of the alleged incidents forming the

9288basis of the case against Respondent.

92942/ In CEO 13 - 7, the Commission opined that promotions or

9306advancements include raising an individual to a higher rank of

9316position of greater personal dignity or importance.

9323COPIES FURNISHED:

9325Melody A. Hadley, Esquire

9329Elizabeth A. Miller, Esquire

9333Office of the Attorney General

9338The Capitol, Plaza Level 01

9343Tallahassee, Florida 32399 - 1050

9348(eServed)

9349Millie Fulford, Agency Clerk

9353Florida Commission on Ethics

9357Post Office Drawer 15709

9361Tallahassee, Florida 32317 - 5709

9366(eServed)

9367Mark Herron, Esquire

9370Messer Caparello, P.A.

93732618 Centennial Place

9376Post Office Box 15579

9380Tallahassee, Florida 32317

9383(eServed)

9384C . Ch ri stopher Anderson, III, General Co unsel

9394Florida Commission on Ethics

9398Post Office Drawer 15709

9402Tallahassee, Florida 32317 - 5709

9407(eServed)

9408Virlin dia Doss, Executive Di rector

9414Florida Commission on Ethics

9418Post Office Drawer 15709

9422Tallahassee, Florida 32 317 - 5709

9428(eServed)

9429NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

9435All 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

9467will i ssue the Final Order in this case.

Select the PDF icon to view the document.
PDF
Date
Proceedings
PDF:
Date: 02/06/2020
Proceedings: Agency Final Order and Public Report filed.
PDF:
Date: 01/29/2020
Proceedings: Agency Final Order
PDF:
Date: 11/08/2019
Proceedings: Recommended Order
PDF:
Date: 11/08/2019
Proceedings: Recommended Order cover letter identifying the hearing record referred to the Agency.
PDF:
Date: 11/08/2019
Proceedings: Recommended Order (hearing held August 12, 2019). CASE CLOSED.
PDF:
Date: 10/09/2019
Proceedings: Advocate's Proposed Recommended Order filed.
PDF:
Date: 10/09/2019
Proceedings: (Proposed) Recommended Order (filed in Case No. 19-003180EC).
PDF:
Date: 09/13/2019
Proceedings: Notice of Filing Transcript.
Date: 09/13/2019
Proceedings: Transcript of Proceedings (not available for viewing) filed.
Date: 08/12/2019
Proceedings: CASE STATUS: Hearing Held.
PDF:
Date: 08/05/2019
Proceedings: Joint Prehearing Stipulation filed.
PDF:
Date: 08/01/2019
Proceedings: Notice of Taking Deposition (Thomas) filed.
PDF:
Date: 07/26/2019
Proceedings: Notice of Service of Response to Advocate's Request for Admissions filed.
PDF:
Date: 07/15/2019
Proceedings: Notice of Taking Deposition Duces Tecum (Steele) filed.
PDF:
Date: 07/15/2019
Proceedings: Notice of Taking Deposition (Smith) filed.
PDF:
Date: 07/15/2019
Proceedings: Notice of Taking Deposition Duces Tecum (Range) filed.
PDF:
Date: 06/26/2019
Proceedings: Advocate's Notice of Service filed.
PDF:
Date: 06/18/2019
Proceedings: Order of Pre-hearing Instructions.
PDF:
Date: 06/18/2019
Proceedings: Notice of Hearing (hearing set for August 12 and 13, 2019; 9:00 a.m.; Tallahassee, FL).
PDF:
Date: 06/18/2019
Proceedings: Order of Consolidation (DOAH Case Nos. 19-3176EC, 19-3177EC, 19-3178EC, 19-3179EC, 19-3180EC).
PDF:
Date: 06/13/2019
Proceedings: Joint Response to Initial Order filed.
PDF:
Date: 06/11/2019
Proceedings: Initial Order.
PDF:
Date: 06/11/2019
Proceedings: Order Finding Probable Cause filed.
PDF:
Date: 06/11/2019
Proceedings: Advocate's Recommendation filed.
PDF:
Date: 06/11/2019
Proceedings: Report of Investigation filed.
PDF:
Date: 06/11/2019
Proceedings: Determination of Investigative Jurisdiction and Order to Investigate filed.
PDF:
Date: 06/11/2019
Proceedings: Complaint filed.
PDF:
Date: 06/11/2019
Proceedings: Agency referral filed.

Case Information

Judge:
JAMES H. PETERSON, III
Date Filed:
06/11/2019
Date Assignment:
06/11/2019
Last Docket Entry:
02/06/2020
Location:
Tallahassee, Florida
District:
Northern
Agency:
ADOPTED EXCEPT FOR PENALTY
Suffix:
EC
 

Counsels

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Related Florida Statute(s) (16):