20-003599EC In Re: Dustin Daniels vs. * Status: Closed Recommended Order on Friday, February 19, 2021.

Summary: The Commission proved, by clear & convincing evidence, that Mr. Daniels, the former chief of staff to the Mayor of Tallahassee, violated section 112.313(6) by sending an email to a political fundraiser from the Mayor's Office; recommended fine $250.

S TATE OF F LORIDA

D IVISION OF A DMINISTRATIVE H EARINGS

I N R E : D USTIN D ANIELS , Case No. 20 - 3599EC

Respondent .

/

R ECOMMENDED O RDER

On October 29, 2020, Administrative Law Judge Ro bert J. Telfer III, of the

Florida Division of Administrative Hearings (Division), conducted an evidentiary

hearing pursuant to section 120.57(1), Florida Statutes (2020), in Tallahassee,

Florida, via Zoom web - conference .

A PPEARANCES

For Advocate : Elizabeth A. Miller, Esquire

Office of the Attorney General

The Capitol, Plaza Level 01

Tallahassee, Florida 32399

For Respondent: Jennifer S. Blohm, Esquire

Meyer, Brooks, Blohm & Hearn, P.A.

P ost O ffice Box 1547

Tallahassee, Florida 32302

S TATEM ENT OF T HE I SSUE S

W hether Respondent Dustin Daniels, while serving as Chief of Staff for the Mayor

of Tallahassee, violated section 112.313(6), Florida Statutes, by corruptly using or

attempting to use his official position or any property or resource whic h may have

been within his trust, or performed his official duties, to secure a special privilege,

benefit, or exemption for himself or others; and, if so, the appropriate penalty.

P RELIMINARY S TATEMENT

On January 30, 2019, the Florida Commission on Ethic s (Commission) issued an

Order Finding Probable Cause to believe that Mr. Daniels, while serving as Chief of

Staff for the Mayor of Tallahassee, violated section 112.313(6). The Commission

forwarded the case to the Division on August 14, 2020.

On August 2 0, 2020, the undersigned noticed this matter for a final hearing, via

Zoom web - conference, for October 29, 2020.

The Advocate filed a Motion in Limine or, in the Alternative, Notice of Intent to

Introduce Evidence of Other Crimes, Wrongs, or Acts (William s Rule), on October 19,

2020 (Motion). On October 20, 2020, Mr. Daniels filed a Response in Opposition to

the AdvocateÔs Motion. The undersigned conducted a telephonic hearing on the

Motion on October 26, 2020, and deferred ruling on the Motion until the f inal

hearing.

The undersigned conducted the final hearing on October 29, 2020, by Zoom web -

conference. The Commission presented the testimony of Mr. Daniel s ; Max Kamin -

Cross, the vice president of corporate development and strategic projects for Every

Act ion, Inc. ; Andre Libroth, the former procurement services manager for the City of

Tallahassee ; Tyler Epstein, a Sergeant with the Leon County SheriffÔs Office ; and

Andrew Gillum, the former Mayor of Tallahassee. Additionally, Mr. Daniels testified

on his o wn behalf. The undersigned admitted Joint Exhibits 1 through 8,

CommissionÔs Exhibit P1 through P14, and RespondentÔs Exhibits R1 through R9

into evidence.

The two - volume Transcript of the final hearing was filed with the Division on

December 1, 2020. On December 7, 2020, Mr. Daniels filed an Unopposed Motion for

Extension of Time to File Post - Hearing Submittal. On December 7, 2020, the

undersigned entered an Order Granting Extension of Time to File Post - Hearing

Submittal, extending the deadline for filin g proposed recommended orders to

January 15, 2021. The parties timely submitted proposed recommended orders on

January 15, 2021, which the undersigned has considered in the preparation of this

Recommended Order.

All statutory references are to the 2016 co dification of the Florida Statutes, unless

otherwise indicated.

F INDINGS OF F ACT

1. Mr. Daniels served as the Chief of Staff to the Mayor of Tallahassee,

Mr. Gillum, from November 2014 through April 2018.

2. Mr. Daniels previously served as Mr. GillumÔs campaign manager for his

mayoral campaign.

3. As Chief of Staff, Mr. Daniels managed the day - to - day responsibilities of the

M ayorÔs O ffice, supervised the M ayorÔs staff, advocated on behalf of the M ayorÔs

initiatives, and approved purchases made using city - issued credit cards (p - cards).

NGP VAN

4. NGP VAN is a cloud computing software suite that describes itself as:

[T]he leading technology provider to Democratic and

progressive campaigns and organizations, as well as

nonprofits, municipalities, and other groups, offering

clients an integrated platform of the best fundraising,

compliance, field, organizing, digital, and social networking

products.

5. In February 2015, the MayorÔs Office entered into a contract with NGP VAN for

a subscription to its service s, and used funds from the M ayorÔs Ñoffice account,Ò i.e.,

leftover funds from his campaign account, to pay for the NGP VAN subscription for

the remaining 11 months of that year. See § 106.141(5)(d), Fl a . Stat . , (providing a

candidate elected to local offi ce the opportunity to transfer from a campaign account

to an office account certain amounts of remaining funds from the campaign account,

provided that such office account funds are used Ñonly for legitimate expenses in

connection with the candidateÔs publ ic office.Ò). From January 2016 through the end

of 2017, the City of Tallahassee, rather than the MayorÔs Office account, paid for the

NGP VAN subscription; specifically, Mr. Daniels used a p - card to make these

payments.

6. Mr. Daniels explained the M ayorÔ s OfficeÔs use of NGP VAN as follows:

NGP VAN is a set of online Ï itÔs a company that provides

online communication services, digital communication

services, in various forms. For the purposes of what I have

used it for, what I use it for in the city was basically as a

Client Relationship Management, or whatÔs commonly

known as a CRM. ItÔs basically a system that allows for

mass communications with large numbers of people via

email, as well as social media in some cases.

But for the most part, it was bas ically Ï itÔs a system that

allows kind of two - way feedback. So instead of just sending

emails, it allowed for you to understand how effective the

communication was that you were sending. So it would

provide you information about open rates, click - through

rates È how engaged the audience was, how effective the

message of the emails actually was. And so things thatÔs

essentially what we used it for.

7. Mr. Gillum provided additional context for the M ayorÔs OfficeÔs use of NGP

VAN. Mr. Gillum became familiar with NGP VAN during his work for what he

labeled as a progressive organization, and then used it during subsequent campaigns

for city commission, mayor, and, most recently, governor of Florida. As a member of

the city commission, Mr. Gillum stated that on e of his Ñbig frustrationsÒ was the

Ñabsence of a real communication toolÒ with voters. He recalled that, during this time

period, Ñthere were no newsletters being sent from commissioners to their residents.Ò

8. Mr. Gillum testified that prior to his elect ion as M ayor, the M ayorÔs OfficeÔs

method of electronic communication consisted of taking contact information from an

Excel spreadsheet and transferring that information to the City of TallahasseeÔs

Outlook email program, and then sending out a mass email with that contact

information. NGP VAN was a Ñcompletely new and dynamic way of being in

communicationÒ that allowed his office to determine whether communications it sent

were being opened and read, as well as Ña way for us to organize information through

our offices as well.Ò

9. Mr. Kamin - Cross testified that NGP VAN had a subscription account with the

ÑOffice of Andrew Gillum.Ò He stated that this subscription was used as a CRM Ñfor

tracking interactions with people[.]Ò He stated that more than two - thi rds of NGP

VANÔs revenue is from subscriptions to elected officials and municipalities; the

remaining subscribers are candidates who identify as Democrats or progressives, as

NGP VANÔs parent company Ñoperates on a set of business ethics outlined in our

te rms of service that generally prohibits us from working with Republican campaigns

based off of our business ethics.Ò

10. Mr. Daniels also testified concerning the M ayorÔs OfficeÔs use of NGP VAN as

follows:

So we would mass email folks of a variety of dif ferent

things that we were working on, and then we would look

at, again, the information or the key performance

indicators that each one of those messages would create for

us about, again, click - through rates, open rates, essentially

telling us a story beh ind all of that[.]

Like how effective was that email? You know, could we

make changes that would make it more appealing for

people to want to stay engaged with the things that we

were doing? We used it solely for that purpose, as well as to

maintain, obvi ously, our large database of contacts. And

outside of that, no other services were used.

11. NGP VAN offers more than a CRM for managing various forms of

communications. Mr. Kamin - Cross mentioned that Ñ[t]here are add - on modules for

things like donations or compliance filings[,]Ò as well as another campaign - related

tool known as ÑVote Builder.Ò Mr. Gillum testified as to NGP VANÔs useful ness in a

campaign with respect to fundraising, including tracking contributions and

generating campaign finance reports.

12. However, the version of NGP VAN utilized in the MayorÔs Office between

February 2015 and the end of 2017 did not utilize any of these campaign - related add -

ons; rather, the Mayor Ôs O ffice utilized NGP VAN solely as a CRM for managing

communications Ð nam ely, mass emails.

13. Both Mr. Daniels and Mr. Gillum testified that the NGP VAN subscription

utilized by the MayorÔs Office served the public purpose of establishing accountability

to the citizens of Tallahassee by effectively communicating the Mayor Ôs in itiatives

and priorities, while also digitally organizing information that encouraged public

engagement beyond what previous mayors had accomplished.

Purchase of NGP VAN Subscription

14. At the beginning of his employment with the City of Tallahassee, Mr. Daniels

received training on the use of the p - card, which primarily focused on the different

spending limits for different levels of city employees, and improper uses of p - cards,

such as the purchase of alcohol or other personal pur chas es.

15. In January 2 016, the Mayor Ôs Ñoffice accountÒ no longer paid for the NGP VAN

subscription. From January 2016 through April 2018 (the duration of Mr. DanielsÔs

employment as Chief of Staff), Mr. Daniels used his p - card to pay for the NGP VAN

subscription. Mr. Daniels m ade four payments to NPG VAN with the p - card, as

follows: (a) $1,050.00; (b) $750.00; (c) $1,050.00; and (d) $2,115.00. These four

payments total $4.965.00.

16. P - Card Procedures #603 (Procedure 603) , found in the City of TallahasseeÔs

Administrative Proce dures Manual, establishes Ñdepartmental procedures for the

procurement of supplies and services with a City of Tallahassee credit card (Purchase

Card) that has been implemented for small purchase transactions less than $25,000.Ò

P - Card Procedure 603.09, en titled ÑPROGRAM REQUIREMENTS/LIMITATIONS,Ò

provides, in part:

All purchases that exceed $1,000 shall be supported by at

least three - documented phone or written quotes; evidence

of contract; sole source, etc. (See Administrative Policy and

Procedure #242CP ).

17. At least three of the purchases of the NGP VAN subscription (totaling

$4,965) with the p - card were subject to Procedure 603, and specifically, P - Card

Procedure 603.09.

18. Mr. Libroth, who was the City of TallahasseeÔs procurement services manage r

during the time Mr. Daniels served as Chief of Staff, testified as to the City of

TallahasseeÔs purchasing procedures, and confirmed that any purchase above

$1,000.00 required three quotes, or documentation that it was from a sole source.

Mr. Libroth ad ditionally testified that the City of TallahasseeÔs procurement policies

require not only three quotes for any p - card purchase above $1,000.00 (that is not

from a sole source), but also that the purchaser must ultimately purchase the goods

or services from the vendor with the least expensive price quote.

19. Mr. Daniels testified that his understanding of the procedures for purchasing

goods or services above $1,000.00 with a p - card:

[M]y understanding of the process that we had to

essentially go and get at least three quotations from those

Ï from different vendors to basically try to understand not

only pricing for those services, but also quality of services

and utility of services; and that we would basically keep a

record of those instances where we soug ht a quote; that we

had to basically keep records of the fact that we did that.

20. The undersigned has reviewed Procedure 603 and specifically, P - Card

Procedure 603.09, and has not located any requirement that, for p - card purchases

above $1,000.00, the purchaser must purchase the goods or services from the vendor

with the least expensive price quote.

21. When asked if he recalled whether Mr. Daniels followed P - Card Procedure

603.09 with respect to the purchase of the NGP VAN subscription with the p - card Ð

i.e., procuring three documented quotes Ð Mr. Libroth stated, ÑI canÔt with 100

percent certainty.Ò He testified that after receiving a public records request for this

information, he searched for this information, but again, stated that he could not

recall if he had a discussion with someone in the MayorÔs Office , or observed

something written concerning the MayorÔs Office seeking the documentation, and

requested (during the final hearing) if he could consult with another city employee to

confirm this. 1 The undersigned finds that Mr. LibrothÔs testimony was unclear and

confusing on this important point.

22 Despite this uncertainty, Mr. Libroth stated that Mr. Daniels failed to follow

Procedure 603, in particular, Ñ[c]ompetition and proper documentation.Ò He f urther

testified that the Ñthree documented quotesÒ that would accompany this purchase, as

required under P - Card Procedure 603.09, would be found in the City of TallahasseeÔs

ÑOn Base system,Ò but for the purchase of NGP VAN, he could not find these three

quotes in the ÑOn Base system.Ò

23. The undersigned has reviewed Procedure 603, and has found no requirement

that a user of a p - card include the required three documented quotes in the City of

TallahasseeÔs ÑOn Base system.Ò To the contrary, in a Procedure 603 subsection

entitled ÑDocumentation Retention Requirements,Ò Procedure 603 states:

A filing system that promotes quick and easy retrieval is

required. One method is to attach all supporting

documentation to a copy of the cardholderÔs monthly

statement . However, any method that is consistent with

departmental procedures and maintains an adequate

retrieval system is satisfactory.

24. Mr. Daniels testified that, in 2015, he received quotes from three other

vendors that provided CRM services: Salsa Labs; Mailchimp; and iConstituent. With

respect to iConstitutent, Mr. Daniels stated that he utilized a free trial of its CRM

system. Mr. Daniels provided evidence, in the form of a Ñscreen shot,Ò of

communications with a representative from Salsa Labs, one of w hich was entitled

ÑPricing Request Lead Alert.Ò He also provided more written substantial evidence

1 That other city employee was Matt Lutz, who the Commission did not timely list or disclose as a

witness, as required under the August 20, 2020, Order of Pre - hearing Instructions. However, during

the final hearing, and during i ts case - in - chief, the Commission attempted to call Mr. Lutz as a

witness, claiming he was a rebuttal witness. The undersigned declined to allow Mr. Lutz to be called

as a rebuttal witness during the CommissionÔs case - in - chief, and the Commission did not la ter attempt

to call Mr. Lutz after Mr. Daniels rested.

that reflected the trial period, and cost, for the iConstituent service. Mr. Daniels did

not provide any written evidence concerning a ÑquoteÒ from Mailchi mp, but testified

that he received one. However, Mr. Libroth testified that he could not recall whether

he had a verbal discussion with the MayorÔs Office , or saw some type of written

documentation with respect to other CRM systems, concerning this issue, while

responding to a public records request, which occurred in 2017.

25. Mr. Daniels further testified that he maintained these ÑquotesÒ in the MayorÔs

Office , and ultimately determined that NGP VAN was Ñone of the most cost effectiveÒ

CRMs that the Mayo rÔs Office reviewed, and decided to use it as a CRM. The

undersigned finds Mr. DanielsÔs belief that he followed Procedure 603 credible, while

Mr. LibrothÔs testimony on the issue of whether Mr. Daniels followed Procedure 603

in procuring and paying for NG P VAN with a p - card unclear, confusing, and at least

with respect to the retention of the written quotes, contrary to Procedure 603. 2

26. The Commission also questioned Mr. Libroth concerning other, unrelated

p - card transactions that Mr. Daniels made, as Ñsimilar fact evidenceÒ under

sections 90.404(2) and 120.57(1)(d) , Florida Statutes , to establish that Mr. DanielÔs

used the p - card for other unauthorized purchases, and to show intent or indifference

with respect to non - official City government related e xpenses. And again, Mr.

LibrothÔs testimony was less than clear on this issue. For example, when asked if it

was appropriate to use the p - card for charitable donations Ð something the

Commission contends

Mr. Daniels did, improperly Ð he stated that as long as it was not an organization

that had been red - lined as an unacceptable vendor, it would be an allowable charge

(unless determined otherwise during an audit). When asked about a p - card charge

related to an expense for a political protest or rally, Mr. Libro th stated that he did

2 In its P roposed R ecommended O rder, the Commission contends that Mr. Daniels violated Procedure

603Ôs requirement that Ñ[p]urchase card purchases of assets that exceed $1000 must be recorded in the

f ixed asset system to ensure that the item is properly safeguarded. Departmental representatives

shall prepare the appropriate documents to ensure the item is added to the fixed asset inventory.Ò The

Commission presented no evidence at the final hearing whe ther the NGP VAN CRM was recorded in

the City of TallahasseeÔs Ñfixed asset systemÒ and did not question either Mr. Daniels or Mr. Libroth

on this contention.

not know, an d could not find it during a quick review of Procedure 603. When asked

if he saw problems with the Mayor Ôs OfficeÔs use of the p - cards during this time

period, he stated, Ñat certain times, yes. I mean, I canÔt put my fing er on a particular

transaction . . . .Ò When asked on cross - examination about the p - card charges for

charitable donations (to organizations that allowed use of their facilities for

meetings), and for the Ñpolitical protest or rallyÒ (to rent a table and cha irs at an

event in the courtyard of the Florida Legislature), Mr. Libroth admitted that such

charges could comport with Procedure 603. And, with respect to issues the

Commission also raised concerning catering charges, Mr. Libroth admitted that if

such cha rges were later reimbursed with grant funds, then the charges were

appropriate, so long as proper procedures were followed, although he would prefer to

see Ñgood documentation.Ò

MayorÔs OfficeÔs Use of NGP VAN and Investigation

27. Mr. Daniels and the Mayo r Ôs communications director, Jamie Van Pelt, were

the only two employees of the MayorÔs Office who had passwords, and thus access to,

the Mayor Ôs OfficeÔs NGP VAN account.

28. The Mayor Ôs OfficeÔs NGP VAN subscription account resided in Ñthe cloud,Ò as

opp osed to the City of TallahasseeÔs servers.

29. Mr. Daniels, and other employees of the MayorÔs Office , added individualÔs

contact information to the NGP VAN account in numerous ways. Beginning in

February 2015, the mayor had approximately 5,937 contact rec ords that were

migrated to the NGP VAN system. The MayorÔs Office also added contact information

to NGP VAN from any person who contacted the MayorÔs Office , as well as contact

information volunteered from individuals who attended various initiative events .

Additionally, the MayorÔs Office requested all of the email addresses from the City of

TallahasseeÔs utilities department, which Mr. Daniels believed would be residents of

or connected to the City of Tallahassee.

30. During the course of Mr. DanielÔs emp loyment as Chief of Staff, the contact

list in the MayorÔs Office Ôs NGP VAN account grew to approximately 31,282

individual contacts.

31. From the time period between February 2015 to the end of 2017, the MayorÔs

Office sent out 106 emails using NGP VANÔs CRM system to the individual contacts

in the NGP VAN system. These emails are numerous and varied. Many of these

emails included information concerning such initiatives from the MayorÔs Office as

the Longest Table, regular meetings of the Faith Leaders Net work, the Community

Summit on Children, the Tallahassee Innovation Partnership, and Tallahassee

Forward. At the final hearing, the Commission questioned Mr. Daniels and

Mr. Gillum concerning a small number of these and other emails, which will be

discusse d separately below. With respect to the categories of emails previously

mentioned, Mr. Daniels testified that the MayorÔs Office used these emails to

communicate the initiatives and work of the MayorÔs Office , and to Ñusher in . . . a

change of strategy fo r the city as a whole as it relates to how we engage with people

digitally[.]Ò

32. In 2017, Mr. Daniels became aware of an internet blog post that raised

questions about the Mayor Ôs OfficeÔs use of NGP VAN for these emails. Soon

thereafter, he became aware of a press inquiry and then a public records request for

these emails. Mr. Daniels testified that he worked with the City of Tallahassee and

NGP VAN to ensure that all of the emails sent from the MayorÔs Office were

available for production. Mr. Daniels n oted that the database of individual contacts

in the NGP VAN CRM was also located in the C ity of Tallahassee Ôs server. He also

noted that he believed that most of the emails sent using the NGP VAN CRM were

also on the City of TallahasseeÔs server as well; as Mr. Daniels and other city

employees were recipients of these emails, these emails would necessarily be found

on the City of TallahasseeÔs server. Mr. Daniels also testified that the MayorÔs Office

often saved drafts of these emails on the City of Talla hasseeÔs server, prior to sending

them to the individual contacts through the NGP VAN.

33. The undersigned finds that all of the records related to the Mayor Ôs OfficeÔs

use of the NGP VAN subscription between February 2015 and 2017 appear to have

been prod uced pursuant to (at least) a public records request and a law enforcement

subpoena, and were admitted into evidence in this proceeding. During the course of

this matter, the Commission did not file any pleadings with the undersigned that

indicated that it was unable to obtain any of documentation related to the NGP VAN

subscription, and, as discussed below, law enforcement did not appear to have any

issues procuring it from the city as well.

34. On March 2, 2017, M r. Gillum reimbursed the City of Tallahass ee for the C ity

of Tallahassee Ôs cost of the NGP VAN CRM subscription, plus an additional amount

to cover a credit card fee. At that time, Mr. Gillum had announced his intention to

run for Governor of Florida. Mr. Gillum explained:

I purchased the system NGP and all of its data when I Ï

when this became an issue Ï it wasnÔt an issue until I guess

someone had made a complaint, and when this thing got

into sort of controversial territory, I purchased the system,

and you know, I havenÔt touched it again. I ne ver re -

subscribed or anything like that.

35. Mr. Gillum stated that he did not use the M ayorÔs OfficeÔs NGP VAN CRM for

his gubernatorial campaign. He further stated that his gubernatorial campaign

advisers suggested that he purchase the M ayorÔs OfficeÔs NGP VAN CRM because:

It was an expense that I made for the benefit of the fact

that my folks wanted to move on to another issue and

didnÔt want me going out there having to make the case as

to why a contact management system was necessary for the

Office o f the Mayor in the eighth largest city in the third

largest state in all of America.

36. On March 6, 2017, the State AttorneyÔs Office of the Second Judicial Circuit

received a complaint that Mr. Gillum had committed grand theft and Ñofficial

misconduct b y falsifying official document or recordÒ while serving as m ayor of

Tallahassee. The State Attorney referred this matter to the Leon County SheriffÔs

Office (LCSO), who assigned this matter to Sergeant Epstein, who at that time was a

detective with LCSO.

3 7. Sergeant Epstein testified that he obtained records from both the City of

Tallahassee (via subpoena) and NGP VAN (via an electronic search warrant),

concerning Mr. GillumÔs time as m ayor of Tallahassee. He received roughly 3500

emails from NGP VAN, as w ell as payment records, and a contact list. He also

received a large number of documents from the City of Tallahassee, including p - card

records, and approximately 1,628 emails. 3 He then reviewed these emails under the

ÑscopeÒ of Ñwere there elements of gra nd theft, and were there any elements for

official conduct.Ò He further looked at how the MayorÔs Office used the NGP VAN

system, and whether Ñthere was any political advertisement sent through that

program during the time frame that the city was paying fo r it.Ò

38. Sergeant Epstein also analyzed the 31,282 contacts within the Mayor Ôs OfficeÔs

NGP VAN CRM. Of these contacts, Sergeant Epstein confirmed that 5,626 contained

the word ÑTallahasseeÒ in the ÑcityÒ field of the contact list, or had a zip code

asso ciated with Leon County, and concluded that this number of contacts were

Tallahassee residents. When he analyzed contacts that identified anything other

than ÑTallahasseeÒ in the ÑcityÒ field of the contact list, he found 2,083 contacts that

he concluded w ere not Tallahassee residents. Another 23,370 contacts did not contain

anything in the ÑcityÒ field of the contact list, or an associated zip code; Sergeant

Epstein determined that these contacts had an Ñunknown location.Ò

39. Sergeant Epstein looked at em ails that were sent from the MayorÔs Office

using NGP VAN Ð through comparing the emails produced by the City of Tallahassee

and NGP VAN Ð and verified that the MayorÔs Office sent a total of 106 emails using

NGP VAN. Sergeant Epstein testified:

The majority of those emails were around city events Long

Table, I think the 1,000 Mentor program, just different

community service programs that when you Ð and I read

every single one of those fliers; of the 106, only four were

identified as being political in nature.

3 Sergeant Epstein explained that the subpoena to the City of Tallahassee requested emails with

ÑNGP VANÒ in the email; in response, he received some Ñrandom political advertisementsÒ unrelated

to Mr. Gillum in which a political candidate had utilized NGP VAN for that candidateÔs race, and to

which a city employee had subscribed, which he explained was a reason for the relatively large

number of responsive emails (compared to the 106 NGP VAN - utilized emails sent from the mayorÔs

office). However, Sergeant Epstein stated that the 106 emails received from NGP VAN matched the

same 106 emails received fr om the City of Tallahassee.

40. Sergeant Epstein stated that he turned these four emails he identified as

being Ñpolitical in natureÒ to the state attorney for consideration by a grand jury. 4

These four emails can be described as follows:

a. A n email that stated ÑJoin Vice President Joe Biden and Dr. Jill Biden in

Tallahassee[,]Òfor a free event would take place at Florida A&M University, with a

further message from Mr. Gillum touting this event as the last major Ñget out the

voteÒ effort in Tallahassee;

b. A n email from Mr. Gillum st ating that he will be representing Florida at the

Democratic National Convention in a speaking role, and included a link to an article

in the Tallahassee Democrat;

c. A n email from Mr. GillumÔs wife, R. Jai Gillum, stating that Mr. Gillum was the

only Flor idian to have a speaking role at the Democratic National Convention, that

she was proud of him, and provided a link to a video of that speech, as well as

excerpts from several news articles about Mr. GillumÔs speech; and

d. A 2015 invitation to ÑJoin Us fo r an Evening With a Special Guest,Ò indicating

that the Ñspecial guestÒ was ÑUnited States Senator Bill NelsonÒ and ÑChairwoman

Allison Tant,Ò that this event was chaired by ÑFlorida Democratic Party Vice Chair &

4 Sergeant Epstein relied on the definition of Ñpolitical advertisementÒ that he found in the Leon

County Supervisors of Elections handbook, which referenced section 106.011(15) , Florida Statutes , in

making this determination. S ection 106.011(15) provides:

ÑPolitical advertisementÒ means a paid expression in a communications

medium prescribed in subsection (4), whether radio, television,

newspaper, magazine, periodical, campaign literature, direct mail, or

display or by means ot her than the spoken word in direct conversation,

which expressly advocates the election or defeat of a candidate or the

approval or rejection of an issue. However, political advertisement does

not include:

(a) A statement by an organization, in existence before the time during

which a candidate qualifies or an issue is placed on the ballot for that

election, in support of or opposition to a candidate or issue, in that

organizationÔs newsletter, which newsletter is distributed only to the

members of that or ganization.

(b) Editorial endorsements by a newspaper, a radio or television

station, or any other recognized news medium.

Tallahassee Mayor Andrew Gillum,Ò that the event was in support of the Florida

Democratic Party, and which provided various monetary sponsorship levels for this

event.

41. Sergeant EpsteinÔs report of investigation included the following conclusion:

Over the course of this investigation the follow ing was

learned. Andrew Gillum originally purchased the NGP

VAN program for use in his campaign for City

Commissioner. After his election, then - City Commissioner

Gillum did not utilize the NGP VAN software program as a

CRM tool while on the City Commission . In 2014, City

Commissioner Gillum again utilized the NGP VAN

program during his campaign for Mayor of Tallahassee.

After winning the election and being sworn into office,

Mayor Gillum along with Chief of Staff Daniels made the

decision to use the NGP VAN program in the mayorÔs office

as a CRM. The decision was made by Chief of Staff Daniels

È to use the NGP VAN program in the mayorÔs office as a

CRM. The decision was made by Chief of Staff Daniels to

initially pay for this program out of the converted off ice

account, then out of the mayorÔs office budget. The use of

this program as a CRM was widely known in the mayorÔs

office and was utilized as a contact database list. Based on

the evidence provided, the fundraising component built

into the NGP VAN progra m was not utilized in the mayorÔs

office. Obtained documents suggest, Chief of Staff Daniels

did evaluate other CRM vendors (Salsa Labs, Mailchimp,

iConstituent), but ultimately decided to stay with NGP

VAN due to familiarity with the program. Of the 106 m ass

emails sent through the NGP VAN program while it was in

the MayorÔs Office, four emails were identified as Ñpolitical

advertisement.Ò In his testimony Mayor Gillum

acknowledges that one of the four emails should not have

been sent out through the NGP V AN program and labels

the decision a Ñhuman error.Ò Mayor Gillum continued to

support his decision to use the NGP VAN program in the

mayorÔs office as a CRM, however Mayor Gillum made the

decision to reimburse the City of Tallahassee because by

his own adm ission, he did not want this to be an issue in

his run for the governorÔs office.

42. On August 7, 2017, the State Attorney presented the criminal complaint to the

grand jury, to determine whether Mr. Gillum committed the crimes of grand theft or

official misconduct Ñby paying for this software with public funds when he believed

they served no public purpose to the taxpayer.Ò On that same date, the grand jury

issued a No True Bill Presentment, and made numerous findings, including:

The software here was o nly utilized as a CRM or Client

Relations Management System. Such a system is

commonly used in government and industry to manage

communications with clients or constituents. NGP Van [sic]

software also holds the ability to track responses and assist

in fun draising. There is no evidence that this fundraising

option was utilized during the relevant period.

* * *

The investigation never revealed any evidence of public

records being destroyed, altered, or mutilated.

Furthermore, there is no evidence of advant age or

detriment to any person through manipulation of public

records.

* * *

We conclude that governmental bodies at all levels spend

vast monies communicating to their constituents as so the

use of this software to announce city affairs does not

constit ute a crime. While the investigation shows that this

software was capable of fundraising and other activities

that might not serve a legitimate interest, the only way it

was utilized was as a client relations management system

distributing mass emails. The wisdom or waste of

governmental officials in deciding which tools to use is a

political issue and not one for criminal prosecution.

* * *

Finally, we decide whether this governmentally leased

software was used for personal or political purposes outside

the scope of legitimate communication with constituents.

We find it was. There is no question that the advertisement

for Florida DEMS fundraising was outside the duties of the

Mayor of Tallahassee and served no public interest.

We find the other three ema ils more questionable. While

the investigator concluded they were political speech, we

are not as sure. One any mayorÔs duties is to be the City of

TallahasseeÔs representative when interacting with other

political leaders. Whether speaking at the Democrat ic

National Committee [sic] or introducing the current Vice

President of the United States, the voters of Tallahassee

chose Mayor Gillum to be the person invited. The

dissemination of his appearance at each may constitute an

appropriate use of the software .

* * *

Two persons, Jamie Van Pelt and Dustin Daniels, had the

password for the system. È Hence, only these staffers

could hold criminal liability for inappropriately sending out

political emails. The system was lawfully utilized to

communicate the publ ic actions of Mayor Gillum. To be

guilty of misappropriation, the State would have to prove

that these staffers had a criminal intent to steal when they

utilized this system to distribute each of these questionable

emails. We donÔt find such evidence. Thes e men sent 102

emails announcing the MayorÔs Longest Table and the

Faith Leadership Network. Our issue is when they also

announced the MayorÔs participation and support of

candidates and fundraising. We find that a less than 4%

error rate in determining wh ether the Mayor was acting in

furtherance of his position as Mayor, or as a private

political fundraiser, cannot support a conclusion of criminal

intent.

43. No criminal charges have been filed against Mr. Daniels, Mr. Gillum, or any

other person involved with this criminal investigation.

44. In April 2018, Mr. Daniels resigned from his position as Chief of Staff and

declared his candidacy for Mayor of Tallahassee. Mr. Daniels did not take or use any

of the information from the M ayorÔs OfficeÔs NGP VAN CRM , nor did he use this

information in his unsuccessful run for mayor.

45. The Commission correctly notes, in its Proposed Recommended Order , that its

scope in this proceeding is different than the grand juryÔs scope.

46. With respect to three of the four em ails that were the subject of the criminal

investigation, Mr. Daniels offered credible testimony as to his intent in sending these

emails using the Mayor Ôs OfficeÔs NGP VAN system. For example, with respect to the

email concerning then - Vice President Biden Ôs visit to FAMU, he stated that the Vice

PresidentÔs visit to Tallahassee was a Ñbig deal,Ò that he was visiting a Ñmajor

institution of public learning in this community,Ò and that Ñcitizens deserved to know

that t his was happening.Ò With respect to the two emails concerning Mayor GillumÔs

speech at the Democratic National Convention, he stated that Ñanything the mayor

was involved with in a leadership capacity, in his official capacity as mayor, then

that was something that was fair g ame for citizens to both know about an d engage

with[,]Ò and that Ñhe was invited as m ayor of the City of Tallahassee, he represented

the city on a very large, national Ð maybe international stage, and we felt like that Ð

again, it was worthwhile for folks to know about that.Ò The undersigned credits

Mr. DanielsÔs explanation for these three emails, and finds that his sending, or

authorizing to send, these emails using the Mayor Ôs OfficeÔs NGP VAN CRM was

consistent with the performance of his public duties as chief of staff, and did not

otherwise violate Florida law.

47. With respect to the remaining email that was the subject of the criminal

investigation, which was the fundraising event held to benefit the Florida Democratic

Party Ð which Mr. Gillum admitted to Sergeant Epstein wa s a Ñhuman errorÒ Ð

Mr. Daniels testified that he has some ÑremorseÒ because it had Ñbecome a

distraction,Ò but also stated, ÑI still believe that the mayor was involved in his official

capacity, and at the time it made sense to me that this was something t hat the

citizens of Tallahassee ought to know about.Ò The undersigned finds Mr. DanielsÔs

justification for this particular email to be less than credible; a person of

Mr. DanielsÔs position Ð the Chief of Staff to the mayor of a large Florida city Ð should

k now that sending an advertisement for a partisan fundraiser to contacts and

constituents from a public email was inconsistent with the performance of his public

duties and would be violative of Florida law.

48. In its Proposed Recommended Order , the Commis sion details many other

emails ( i.e., other than the four emails that Sergeant Epstein identified as Ñpolitical

in natureÒ in paragraph 40 above, and which the grand jury reviewed) sent from the

Mayor Ôs OfficeÔs NGP VAN system that it contends are Ñself ag grandizing,Ò that

identify Mr. Gillum as the m ayor of the City of Tallahassee, and that (at least some)

include the seal of the M ayorÔs O ffice, which do not constitute a public purpose. The

Advocate questioned Mr. Daniels about one of these ÑotherÒ emails, which advertised

the opening of the Edison restaurant; Mr. Daniels stated that the Edison restaurant

was formerly the City of TallahasseeÔs old electricity building, that it was a project

that utilized Community Redevelopment Agency funds, and that it was appropriate

to alert the public of its grand opening. And, at the final hearing, Mr. Daniels

mentioned one email concerning Mr. Gillum receiving the Small Business Advocate

award from the Conference of Mayors, and an event at City Hall commemorating this

award. And, as found previously in paragraph 31 above, Mr. Daniels and Mr. Gillum

testified as to the emails that included information initiatives from the MayorÔs

Office , such as the Longest Table, regular meetings of the Faith Leaders Network,

the Commun ity Summit on Children, the Tallahassee Innovation Partnership, and

Tallahassee Forward.

49. The Commission did not question Mr. Daniels Ð or any witness Ð at the final

hearing concerning these other ÑunexaminedÒ emails it argues in its Proposed

Recommended Or der do not constitute a public purpose, except for what is discussed

above. Other than successfully moving into evidence all 106 emails sent from the

NGP VAN system in the MayorÔs Office , the Commission, which h as the burden in

this matter, presented no co mpetent, substantial evidence on these other,

unexamined emails from which the undersigned could make a factual finding that

Mr. Daniels acted corruptly in the sending of these other, unexamined emails. 5

5 Nor should a finding of corrupt intent be implied with respect to these other, unexamined emails. See

Robinson v. CommÔn on Ethics , 242 So. 3d 467, 471 n.4 (Fla. 1st DCA 2018).

Findings of Ultimate Fact

50. Based on the foregoin g, the undersigned finds, as a matter of ultimate fact,

that the Commission did not prove, by clear and convincing evidence, that

Mr. DanielsÔs purchase of the NGP VAN subscription with the City of Tallahassee

p - card constituted a violation of section 11 2.313(6).

51. Additionally, based on the foregoing, the undersigned finds, as a matter of

ultimate fact, that the Commission did not prove, by clear and convincing evidence,

that Mr. DanielsÔs use of the NGP VAN CRM constituted a violation of FloridaÔs

Sun shine Law, see chapter 119 , Florida Statutes , and thus, the commission did not

prove that the use of the NGP VAN CRM constituted a violation of

section 112.313(6).

52. The undersigned finds, of the 106 mass emails sent from the M ayorÔs OfficeÔs

NGP VAN CR M system, the Commission proved, by clear and convincing evidence,

that one email Ð which is described in paragraph 40d. above, an invitation to a

fundraiser for the Florida Democratic Party, which listed Mr. Gillum as both ÑFlorida

Democratic Party Vice Cha irÒ and ÑMayor of Tallahassee,Ò and which listed various

contribution levels Ð constituted an improper use of his and the M ayorÔs OfficeÔs

resources . The dissemination of that email was not consistent with the performance

of his public duties, as a partisan fundraising email from the M ayorÔs OfficeÔs public

account constitutes an improper political advertisement, and thus constituted a

violation of section 112.313(6).

53. With respect to the remaining 105 mass emails sent from the M ayorÔs OfficeÔs

NGP VAN CR M, the undersigned finds, as a matter of ultimate fact, that the

Commission did not prove, by clear and convincing evidence, that Mr. DanielsÔs mass

emailing of these various other emails constituted a violation of section 112.313(6).

C ONCLUSIONS OF L AW

5 4. The Division has jurisdiction over the subject matter and the parties to this

proceeding in accordance with sections 120.569 and 120.57(1).

55. Section 112.322 and Florida Administrative Code Rule 34 - 5.0015 authorize

the Commission to conduct investigat ions and to make public reports on complaints

concerning violations of chapter 112 , part III , the Code of Ethics for Public Officers

and Employees.

56. The burden of proof, absent a statutory directive to the contrary, is on the

Commission, the party asser ting the affirmative of the issue of these proceedings.

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

DepÔt of Health & Rehab. Servs., 348 So. 2d 349 (Fla. 1st DCA 1977). In this

proceeding, it is the Commission, throu gh its Advocate, that is asserting the

affirmative: that Mr. Daniels violated section 112.313(6). Commission proceedings

which seek recommended penalties against a public officer or employee require proof

of the alleged violation(s) by clear and convincing evidence. See Latham v. Florida

CommÔn on Ethics, 694 So. 2d 83 (Fla. 1st DCA 1977). Therefore, the Commission has

the burden of establishing, by clear and convincing evidence, the elements of Mr.

DanielsÔs violations.

57. Clear and convincing evidence Ñr equires more proof than a Ópreponderance of

the evidenceÔ but less than Óbeyond and to the exclusion of a reasonable doubt.ÔÒ In re

Graziano , 696 So. 2d 744, 753 (Fla. 1997). The Florida Supreme Court further held:

This intermediate level of proof entails both a qualitative

and quantitative standard. The evidence must be credible;

the memories of the witnesses must be clear and without

confusion; and the sum total of the evidence must be of

sufficient weight to convince the trier of fact without

hesitancy. Clear and convincing evidence requires that the

evidence must be found to be credible; the facts to which

the witnesses testify must be distinctly remembered; the

testimony must be precise and lacking in confusion as to

the facts in issue. The evidence mu st be of such a weight

that it produces in the mind of the trier of fact a firm belief

or conviction, without hesitancy, as to the truth of the

allegations sought to be established.

In re Davey , 645 So. 2d 398, 404 (Fla. 1994)(quoting Slomowitz v. Walker, 429 So. 2d

797, 800 (Fla. 4th DCA 1983)).

58. Section 112.313(6), provides:

MISUSE OF PUBLIC POSITION. Ð No public officer,

employee of an agency, or local governmental attorney

shall corruptly use or attempt to use his or her official

position or any prop erty or resource which may be within

his or her trust, or perform his or her official duties, to

secure a special privilege, benefit, or exemption for himself,

herself, or others. This section shall not be construed to

conflict with s. 104.31.

59. Section 112.312(9) defines ÑcorruptlyÒ as follows:

ÑCorruptlyÒ means done with a wrongful intent and for the

purpose of obtaining, or compensating or receiving

compensation for, any benefit resulting from some act or

omission of a public servant which is inconsi stent with the

proper performance of his or her public duties.

60. Courts have provided further direction on what constitutes acting ÑcorruptlyÒ

under section 112.313(6). In Blackburn v. Commission on Ethics, 589 So. 2d 431, 434

(Fla. 1st DCA 1991), the F irst District held that to satisfy the ÑcorruptlyÒ statutory

element, the Commission must prove that a respondent acted Ñwith reasonable notice

that her conduct was inconsistent with the proper performance of her public duties

and would be a violation of t he law or code of ethics in part III of chapter 112.Ò; S ee

also Siplin v. CommÔn on Ethics, 59 So. 3d 150, 151 - 52 (5th DCA 2011).

61. To establish a violation of section 112.313(6), the Commission must prove, by

clear and convincing evidence, that:

a. Mr. Daniels is or was a public officer or employee;

b. Mr. Daniels: (i) used or attempted to use his official position or any property or

resources within his trust; or (ii) performed his official duties;

c. Mr. DanielsÔs actions must have been taken to secure a special privilege,

benefit, or exemption for himself or others; and

d. Mr. Daniels must have acted corruptly, that is, with wrongful intent and for the

purpose of obtaining any benefit, which is inconsistent with the proper performance

of his public dut ies.

62. The evidence established that Mr. Daniels, who served as chief of staff for the

City of Tallahassee MayorÔs Office , was, at all relevant times, an Ñemployee of an

agencyÒ as provided in sections 112.313(2) and (6), and was thus a public employee

s ubject to the requirements of chapter 112, part III, at the time of the alleged

violations.

63. The evidence also established that Mr. Daniels, by virtue of his position as

chief of staff, had access to certain property or resources of the City of Tallahas see,

such as the p - card, computers, internet service, and employees. Additionally, as chief

of staff, Mr. Daniels performed his official duties, which included advocating on

behalf of the mayorÔs initiatives, in sending mass emails utilizing the NGP VAN

CR M.

Purchase of NGP VAN

64. The undersigned concludes that the evidence failed to establish, by clear and

convincing evidence, that the MayorÔs Office Ôs purchase of the NGP VAN subscription

for use as a CRM Ð either through the use of the office account or la ter with the p -

card Ð was done to secure a special privilege or benefit for Mr. Daniels or the MayorÔs

Office , or that Mr. Daniels acted corruptly. Both Mr. Daniels and Mr. Gillum credibly

testified that NGP VAN was selected as a CRM to better engage with in dividuals

concerning various initiatives from the MayorÔs Office , which allowed for more

accountability.

65. The Commission also failed to establish, through clear and convincing

evidence, that Mr. DanielsÔs purchase of the NGP VAN subscription, and his us e of

the p - card to pay for the NGP VAN subscription, violated Procedure 603 or the City

of TallahasseeÔs record documentation requirements. Mr. DanielsÔs credible

testimony established that he reasonably believed the purchase of the NGP VAN

subscription, a nd subsequent use of the p - card to pay for it, was consistent with city

procurement policies, while Mr. Libroth offered unclear and confusing testimony on

this issue.

66. Additionally, the evidence presented at the final hearing established that the

MayorÔ s Office only used the NGP VAN subscription as a CRM for mass emails, and

not for any other purpose, such as fundraising, and that neither Mr. Daniels nor Mr.

Gillum subsequently used any of the contacts from the NGP VAN CRM contact list

for their races fo r mayor or governor. Mr. DanielsÔs purchase and use of a CRM to

improve the ability to provide communications from the MayorÔs Office did not create

a special privilege, benefit, or exemption for himself or others, and was not done so

corruptly.

6 7 . Despit e the CommissionÔs contentions to the contrary, the undersigned cannot

conclude that the MayorÔs OfficeÔs transfer from his campaign account to an office

account to pay for some of the NGP VAN subscription was violative of Florida law,

and, therefore, cann ot conclude that it constitute d misuse of position under section

112.313(6). Section 106.141(5)(d) plainly authorizes such a transfer, and section

106.141(5) further provides that such funds Ñshall be used only for legitimate

expenses in connection with th e candidateÔs public office.Ò With the exception of one

email, to be discussed further below, the undersigned concludes that the use of the

office account, and later, the use of the p - card, to purchase and pay for the NGP VAN

subscription as a CRM, constit uted a legitimate public purpose, as opposed to an

improper purpose that created a special privilege, benefit, or exemption for Mr.

Daniels or others.

Use of NGP VAN

68 . The Commission failed to establish, through clear and convincing evidence,

that Mr. Da niels Ôs use of NGP VAN constituted a violation of the FloridaÔs public

records law, see chapter 119, and thus, a violation of section 112.313(6). Mr. DanielsÔs

credible testimony established that the emails sent using the NGP VAN CRM were

located on the Ci ty of TallahasseeÔs server. Additionally, Sergeant EpsteinÔs

testimony and investigation confirmed that all of the emails, as well as the list of

contacts, located with the City of Tallahassee (and provided through a subpoena) ,

matched those emails and con tacts provided by NGP VAN pursuant to an electronic

search warrant.

69 . A contention of the Commission is that the MayorÔs Office set up the NGP

VAN CRM to establish a contact list that did not necessarily consist of local

constituents, and to send out Ñse lf aggrandizingÒ messages to these contacts that

were intended to further Mr. GillumÔs candidacy for Governor, which did not serve a

public purpose. The CommissionÔs attempt to Ñconnect the dotsÒ to establish this

contention was unsuccessful. The evidence established that Mr. Gillum did not

transfer, or otherwise use, the MayorÔs OfficeÔs NGP VAN subscription in his

subsequent campaign (and, nor did Mr. Daniels use it in his campaign for mayor).

The evidence established that the MayorÔs Office only used the NGP VAN system as

a CRM, and did not utilize any available Ñadd - insÒ that might be considered more

political in nature.

7 0 . And, with the exception of one email (to be discussed below), Mr. DanielsÔs

sending, or authorizing to send, the mass emails sent u sing the MayorÔs OfficeÔs NGP

VAN CRM from the MayorÔs Office , that were examined at final hearing, was

consistent with the performance of his public duties as chief of staff, and did not

otherwise violate Florida law. With respect to 105 of 106 of these e mails sent using

the NGP VAN CRM, the undersigned concludes that the Commission failed to

establish, by clear and convincing evidence, that Mr. Daniels Ôs actions secured a

special privilege, benefit, or exemption for himself or others, and was not done so

corruptly. 6

6 The undersigned has not ignored the CommissionÔs argument concerning its advisory opinion CEO

91 - 37, which considered whether a city commissioner would encounter a prohibited conflict of interest

if he were to mail an informational newsletter to constituents, where a private organization would pay

for the cost of mailing. In CEO 91 - 37, the Commission suggested that the newsletterÔs stationery

would contain the City of TallahasseeÔs logo, and to advised the ci ty commissioner to include a

disclaimer indicating no public funds were used to pay the cost of the newsletter to avoid a violation of

section 112.313(6). The undersigned finds this advisory opinion distinguishable from the case at bar,

as (a) the examined emails in the case at bar were not newsletters, but instead, as found by the

undersigned, concerned initiatives in the M ayorÔs O ffice and other events that had a public purpose

(with the exception of one email); and (b) the advisory opinion was provided i n the context of gift laws .

S ee §§ 112.312(9) and 112.3148 , Fla. Stat .

7 1 . In clear contrast to the 105 emails discussed above , Mr. Daniels, as chief of

staff, oversaw the sending of an email, utilizing the MayorÔs OfficeÔs NGP VAN CRM,

that was an invitation to a 2015 fundraising event to support the Florida Demo cratic

Party, that was chaired by ÑFlorida Democratic Party Vice Chair & Tallahassee

Mayor Andrew Gillum,Ò which provided various monetary sponsorship levels for this

event. At this time, the MayorÔs Office account paid for the NGP VAN CRM

subscription. Se ction 106.141(5), which allows for a candidate to transfer funds from

a campaign account to an office account, expressly states that Ñ[a]ny funds so

transferred by a candidate shall be used only for legitimate expenses in connection

with the candidateÔs pu blic office.Ò Section 106.141(5) further provides that these

office account funds can be used to produce and mail various forms, so long as Ñsuch

correspondence does not constitute a political advertisement, independent

expenditure, or electioneering commu nication as provided in s. 106.011 . . . .Ò The

email invitation to a fundraiser for a political party , a political advertisement,

pursuant to section 106.011(15), cannot be considered to be a legitimate expense of

the MayorÔs Office . The undersigned conclu des that Mr. DanielsÔs overseeing of this

email constituted an improper use of his and the MayorÔs OfficeÔs resources, which

was not consistent with the performance of his public duties, and that Mr. Daniels

should have known that sending this particular e mail from the public office of the

mayor was violative of Florida law. Accordingly, the undersigned concludes that the

Commission established, by clear and convincing evidence, that this single email (out

of a total of 106), constituted a violation of sect ion 112.313(6).

Recommended Penalty

7 2 . The penalties available for a former public employee who violated the Code of

Ethics include, pursuant to section 112.317(1)(d): (a) public censure and reprimand;

(b) a civil penalty not to exceed $10,000; and (c) re stitution of any pecuniary benefits

received because of the violation committed.

7 3 . Neither the Code of Ethics or chapter 34 - 5, recognize any mitigating or

aggravating factors to consider when determining the appropriate penalty.

7 4 . The Commission argues , in its Proposed Recommended Order , for a significant

civil penalty. The undersigned has reviewed the two cases it uses as comparison: In

re: Renee Lee , DOAH Case No. 11 - 6063EC (DOAH July 11, 2012) ; CommÔn on Ethics

Sep t . 12, 2019), which recommended a $5 ,000 fine, as well as a public censure and

reprimand; and In re: Stephan Carter, DOAH Case No. 16 - 3637EC (DOAH Jan. 3,

2017 ; CommÔn on Ethics Mar. 15, 2017), in which the Commission recommended a

$10,00 0 fine, as well as a public censure and reprimand. In the two cases provided by

the Commission, the respondents used their positions to secure additional

compensation for themselves, in the forms of salary increases or severance packages.

7 5 . In the instant matter, Mr. Daniels did not use his position for an y type of

pecuniary gain. Rather, the undersigned has concluded that one, out of a total of 106

emails from the MayorÔs Office that used the NGP VAN system, was improper, and

constituted a violation of section 112.313(6). The Commission concedes in its

Pro posed R ecommended O rder that restitution is not requested because the full cost

of the NGP VAN subscription was reimbursed to the City of Tallahassee. The

undersigned concludes that the two cases provided by the Commission do not provide

an appropriate bas is for its requested fine of $5,000.

7 6 . The undersigned recommends the imposition of a $250 fine as the appropriate

penalty for Mr. DanielsÔs violation of section 112.313(6). This penalty effectively

addresses both the frequency and severity of this viola tion.

R ECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, the

undersigned hereby R ECOMMEND S that the Commission enter a final order finding

that Respondent, Dustin Daniels, violated section 112.313(6), and that Respondent

be s ubject to a $250 fine.

D ONE A ND E NTERED this 19th day of February, 2021 , in Tallahassee, Leon

County, Florida.

S

R OBERT J. T ELFER III

Administrative Law Judge

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(85 0) 488 - 9675

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 19th day of February, 2021 .

C OPIES F URNISHED :

Millie Wells Fulford, Agency Clerk Elizabeth A. Miller, Esquire

Florida Commission on Ethics Office of the Attorney General

Post Office Drawer 15709 The Capitol, Plaza Level 01

Tallahassee, Flo rida 32317 - 5709 Tallahassee, Florida 32399

Jennifer S. Blohm, Esquire Advocates for the Commission

Meyer, Brooks, Blohm & Hearn, P.A. Office of the Attorney General

P ost O ffice Box 1547 The Capitol, Plaza Level 01

Tallahassee, Florida 32302 Tallahassee, Florida 32399 - 1050

C. Christopher Anderson, III, Executive

Director and General Counsel

Florida Commission on Ethics

Post Office Drawer 15709

Tal lahassee, Florida 32317 - 5709

N OTICE OF R IGHT T O S UBMIT E XCEPTIONS

All parties have the right to submit written exceptions within 15 days from the date

of this Recommended Order. Any exceptions to this Recommended Order should be

filed with the agency that will issue th e Final Order in this case.