19-003178EC
In Re: Wanda Range vs.
*
Status: Closed
Recommended Order on Friday, November 8, 2019.
Recommended Order on Friday, November 8, 2019.
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. Respondents testimonial evidence was
499presented through her testimony and cross - examination of
508witnesse s call ed during the presentation of the Commissions
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 ouncilmembers term. Responde nts 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 Respondents inquiry and
1412the advice he provided. T he last page of that e - mail (Schafers
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 Respondents receipt of
1560Schafers 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
1932Commissions 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 Schafers E - mail dated April 21, 2 016, to
2043either the City Council or the City Attorney prior to the City
2055Councils 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 Schafers 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. Schafers 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 :
2363shall 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 Mothers 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 Respondents 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 Citys 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. Respondents 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 daughters house in Tallahassee .
280539. On one of th e occasions when Respondent drove the
2816Vehicle to her daughters 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 daughters house .
2849The Mid way Resident took pictures of the Vehicle at Respondents
2860daughters 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 Mazdas 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
2993Respondents 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 persons vehicle left when evacuating because
3042of a hurricane. While providing such ac c ommodations is not
3053listed within Respondents 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 Citys
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 Colstons 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
3707we 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. Dept 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 . Commn on Ethics ,
4676694 So. 2d 83 (Fla. 1st DCA 1997). Therefore, the burden of establishing by clear and convincing evidence the elements of
4697Respondents 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
4835clear and convincing standard requires more than a
4843preponderance of the evidence, it does not require proof
4853beyond 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 :
5171Public 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:
5315Relative, 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 Respondents 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 . Respondents 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:
6530Corruptly 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) ) , Respondents 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, Commn 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 Schafers E - mail . However, Schafers E -
7041mail was directed toward a different situation, n amely, the
7051appointment of Respondents cousin to fill a vacant City Council
7061seat . In contrast, t he vote at issue on May 4, 2018, was a vote
7077to elect Respondents cousin to a ceremonial position after he
7087had already been elected to the City Council by the citizenry .
7099Further, the evidence show ed that Schafers 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 Respondents 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 Citys Vehicle and City Fuel Card for her personal
7210benefit , is a closer question t han Respondents 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
7270Respondents u se of the Citys 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 Citys air - conditioned V ehicle
7334for her person al use at the Citys 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 Respondents
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 Respondents
7450residence. Without a policy in place and consi dering
7459Respondents use of the Vehicle for City business intermittently
7468with personal use , the Vehicle was arguably an incident of
7478Respondents 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
7507Respondents ethics training and her awareness that personal use
7516of City - paid postage w ould be wrong as evidence of Respondents
7529notice that her personal use of the Vehicle and City Fuel C ard
7542was prohibited. However, considering the Citys lack of a
7551policy regarding personal use , coupled with Respondents
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 Respondents 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 donees behalf,
7967or that which is paid or given to another
7976for or on behalf of a donee, directly,
7984indirectly, or in trust for the donees
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 donees
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 persons spouse.
83084. An award, plaque, certificate, or
8314similar personalized item given in
8319recognition of the donees 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, Respondents use of the Vehicle and
8555City Fuel Card could arguably be characterized as an incident of
8566Respondents 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 Respondents 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 Respondents
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 Respondents personal use on a
8724per occurrence basis, see section 112.3148(7) (i), quoted
8732above, the evidence was insufficient to clearly and convincingly prove that Respondents 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 Respondents 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 Respondents 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 Respondents
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.
- Date
- Proceedings
- PDF:
- Date: 11/08/2019
- Proceedings: Recommended Order cover letter identifying the hearing record referred to the Agency.
- Date: 09/13/2019
- Proceedings: Transcript of Proceedings (not available for viewing) filed.
- Date: 08/12/2019
- Proceedings: CASE STATUS: Hearing Held.
- PDF:
- Date: 07/26/2019
- Proceedings: Notice of Service of Response to Advocate's Request for Admissions filed.
- 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).
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
-
Millie Wells Fulford, Agency Clerk
Post Office Drawer 15709
Tallahassee, FL 323175709
(850) 488-7864 -
Melody A. Hadley, Esquire
The Capitol, Plaza Level 01
Tallahassee, FL 323991050
(850) 414-3300 -
Mark Herron, Esquire
2618 Centennial Place
Post Office Box 15579
Tallahassee, FL 32317
(850) 222-0720