21-002145EC In Re: William &Quot;Bil&Quot; Spaude vs. * Status: Closed Recommended Order on Wednesday, November 17, 2021.

Summary: The Commission proved, by clear and convincing evidence, that Mr. Spaude, the Mayor of the City of Bushnell, violated section 112.313(6) by obtaining plumbing supplies from the City without paying, and using the City's charge account.

S TATE OF F LORIDA

D IVISION OF A DMINISTRATIVE H EARINGS

I N R E : W ILLIAM S PAUDE , Case No. 21 - 2145EC

Respondent .

/

R ECOMMENDED O RDER

On September 15 and 16, 2021, Administrative Law Judge Robert J.

Telfer III, of the Florida Division of Administrative Hearings (DOAH),

conducted an evidentiary hearing pursuant to section 120.57(1), Florida

Statutes (2020), in Tallahassee, Florida, via Zoom web - conference.

A PPEARANCES

For Advocate: M elody A. Hadley, Esquire

Elizabeth A. Miller, Esquire

Advocates for the Florida Commission on Ethics

Office of the Attorney General

Plaza Level 01 , The Capitol

Tallahassee, Florida 32399 - 1050

For Respondent: Eugene Dylan Rivers, Esquire

Kevin A. Forsthoefel, Esquire

Richard E. Doran, Esquire

Ausley & McMullen, P.A.

123 South Calhoun Street

Post Office Box 391

Tallahassee, Florida 32301

S TATEMENT OF T HE I SSUE S

Whether Respondent , William Spaude, while serving as Mayor of the City

of Bushnell, violated section 112.313(6), Fl orida Statutes, by corruptly using ,

or attempting to use , his official position or any property or resource which

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 December 9, 2020, the Florida Commission on Ethics (Commission)

issued an Order Finding Probable Cause to believe that Mr. Spaude, while

serving as the Mayor of the City of Bushnell, violated section 112.313(6). The

Commission forwarded the case to DOAH on July 7, 2021.

On July 16, 2021, the undersigned noticed this matter for a live final

hearing in Bushnell, for Septem ber 15 through 17, 2021. On August 31, 2021,

after a telephonic status conference, the undersigned issued an amended

notice of hearing, which moved the final hearing in this matter to the Zoom

web - conference platform.

On September 8, 2021, Respondent fil ed a Motion for Official Recognition ,

which requested that the undersigned take official recognition of the Charter

of the City of Bushnell, as well as Chapter 27 of the Code of Ordinances for

the City of Bushnell. The undersigned entered an Order Granting Motion for

Official Recognition on September 10, 2021. On September 13, 2021,

Respondent filed a Motion in Limine, and on September 14, 2021, the

Advocate filed an Objection to RespondentÔs Second Set of Interrogatories and

Motion to Strike RespondentÔs S econd Set of Interrogatories.

The undersigned conducted the final hearing on September 15 and 16,

2021, by Zoom web - conference. At the outset of the hearing, the undersigned

heard argument on RespondentÔs Motion in Limine and the AdvocateÔs

Objection to R espondentÔs Second Set of Interrogatories and Motion to Strike

RespondentÔs Second Set of Interrogatories, and denied both. The

Commission presented the testimony of: Mr. Spaude; Jeffrey McDaniel, an

employee at the Wildwood location of Core & Main; Stephe n Fussell, a retired

City of Bushnell employee who previously worked in its water department;

Shelley Ragan, the finance director for the City of Bushnell; Isaac Wietan, an

employee of the City of Bushnell who served as a first - class lineman with its

elect ric department; Ronda Cason, a retired former purchasing agent for the

City of Bushnell; Lance Lowery, the owner of LoweryÔs True Value Hardware

Store in Bushnell; James Dixon, a former electric line foreman with the City

of Bushnell; Jody Young, the City Manager for the City of Bushnell; and

Christopher Thrift, an employee of Ace Pole Company. The undersigned

admitted AdvocateÔs Exhibits 7, 8, 10 through 13, and 15. Respondent

presented the testimony of Mr. Spaude and Jay Fuller, an electric lineman

for th e City of Bushnell. Respondent offered no additional exhibits into

evidence.

The three - volume T ranscript of the final hearing was filed with DOAH on

October 19, 2021. The parties timely submitted P roposed R ecommended

O rders on October 29, 2021, which the undersigned has considered in the

preparation of this Recommended Order.

F INDINGS OF F ACT

1. Mr. Spaude is the Mayor of the City of Bushnell. He first became Mayor

in January 2011, was subsequently reelected, and served as Mayor until

September 2018, whe n he resigned. He was elected again as Mayor and was

sworn in in January 2019.

2. Mr. Spaude is retired, but remains active in various business and real

estate ventures (which, according to the evidence presented, were operated

under limited liability comp anies he either owns or co - owns with members of

his family), as well as civic and community activities.

3. Mr. Spaude has family that also lives in Bushnell. His son, Tod Spaude,

owns a go - kart business called TS Racing. His grandson, Bret Spaude, is an

ow ner of a racetrack in Bushnell called Bushnell Motorsports Park (BMP).

Mr. Spaude, or a real estate venture in which Mr. Spaude has an interest,

owns property adjacent to BMP.

4. Mr. Spaude helped found the Sumter County Youth Center, and serves

on its boa rd of directors. As will be discussed more fully below, Mr. Spaude

operates a Ñcorn mazeÒ on the property adjacent to BMP, which is an annual

fundraiser for the Sumter County Youth Center.

5. Neither BMP nor the Sumter County Youth Center are owned or

affi liated in any way with the City of Bushnell.

6. The City of BushnellÔs Charter provides that it is a ÑCouncil - ManagerÒ

form of government. Section 2.04(b) of the City Charter provides the duties

for the Mayor, and states:

The Mayor shall preside at meeting s of the Council

and shall be recognized as head of the city

government for service of process, execution of

contracts, deeds, and other documents. The Mayor

shall have no administrative duties other than

those necessary to accomplish these duties.

7. Ac cording to the City Charter, the Mayor is one of five members of the

City Council. Section 2.06 of the City Charter also states:

Neither the City Council nor any of its members

shall in any manner dictate the appointment of any

City employee excepting that Council shall be

responsible for the appointment of the City

Manager, City Attorney and of the respective

Department heads. Neither Council nor any of its

members shall give directives to any employee.

Council, and its members, shall deal in all respects

through the City Manager.

8. The City Manager prepares the annual budget, oversees all operational

aspects of the City government, and has the ultimate say on City employees

and personnel issues.

9. Under this ÑCouncil - ManagerÒ form of government, the C ity Manager

has no direct supervisor, but reports directly to the City Council. The City

Council may remove the City Manager upon an affirmative vote of four of its

five members.

10. As Mayor, Mr. Spaude is a Ñpublic officerÒ as that term is defined in

se ction 112.313(1).

11. Mr. Spaude is subject to the requirements of part III, chapter 112, of

the Code of Ethics for public officers and employees.

12. Mr. Spaude has attended annual municipal officerÔs ethics training, as

required under section 112.3142( b).

13. Ms. Young has been the City Manager since 2018. In early 2018, the

prior City Manager, Bruce Hickle, passed away unexpectedly, and Ms. Young

took over the position, first as an interim City Manager, until the City

Council appointed her as City Man ager in a 4 - 1 vote, with Mr. Spaude

casting the lone dissenting vote.

14. Ms. Young testified that there was some ÑfrictionÒ between her and

Mr. Spaude. The testimony provided at the final hearing suggested at least

two possible causes of this ÑfrictionÒ:

(a) Mr. Spaude (who supported Ms. YoungÔs appointment as interim City

Manager), objected to Ms. YoungÔs salary as City Manager; and

(b) Mr. Spaude proposed, in 2018, reducing or eliminating a contract

between the City of Bushnell and the Sumter County Sh eriffÔs Office, under

which the City paid the SheriffÔs Office to provide law enforcement in

Bushnell. Ms. Young worked closely with the SheriffÔs Office liaison,

Lieutenant Mike Cassidy, and testified that she was told that the Sumter

County Sheriff would not support a reduction in that contract. Ms. Young did

not share that information with the City Council prior to its vote. Ultimately,

the City Council voted to renew the contract between the City of Bushnell

and the Sumter County SheriffÔs Office withou t a reduction in 2018.

Mr. Spaude expressed his disapproval at a City Council meeting.

15. After Ms. Young became City Manager, she implemented some

changes from the previous regime of Mr. Hickle. For example, Mr. Spaude

regularly attended staff meetings u nder the previous regime; when

Ms. Young became City Manager, she sent him an email requesting that he

no longer attend such meetings. Ms. Young testified that she felt his presence

at staff meetings Ñwas overreaching his position as the mayor,Ò and that,

under the City Charter, Ñ[t]hereÔs nothing in there about him attending staff

meetings or providing input to staff[.]Ò

16. Mr. Spaude resigned as Mayor in September 2018, shortly after

Ms. Young became the City Manager. However, Mr. Spaude had already

decl ared that he was seeking reelection to his position as Mayor, and was

unopposed. Ms. Young testified that she had consulted with the City Attorney

about whether Mr. Spaude was eligible for reelection after his resignation.

17. Ms. Young testified that arou nd the time of Mr. SpaudeÔs opposition to

her becoming the permanent City Manager, she learned of various

allegations concerning Mr. Spaude from a former city employee.

18. Ms. Young , thereafter , began talking to others about various

allegations she had h eard about Mr. Spaude. Around this same time, she

mentioned her investigation to Lt. Cassidy, who, she testified, then told his

superior at the Sumter County SheriffÔs Office. The SheriffÔs Office then set

up a meeting with Ms. Young and agents with the Fl orida Department of

Law Enforcement (FDLE), and thereafter, the FDLE conducted an

investigation of Mr. Spaude.

19. Ultimately, the FDLE conducted an investigation into Mr. Spaude,

and referred this matter to the Commission.

20. At the final hearing, the Co mmission contended that Mr. Spaude

misused his position as Mayor of the City of Bushnell in four separate ways

(and as presented in the Joint Stipulation) 1 :

(a) Mr. Spaude used the services of City employees to negotiate the sale

and deliver y of wooden uti lity poles for his personal use. Also, he used City

employees, on City time, to deliver the wooden poles using City equipment for

his personal use. Due to using the CityÔs resources, Mr. Spaude did not pay

sales tax on the purchase;

(b) Mr. Spaude used the services of City employees, on City time, to

provide and install two wooden utility poles at a business in which he has an

interest;

(c) Mr. Spaude requested and received plumbing supplies Ð PVC pipe and

tapping saddles Ð for free from the CityÔs Public Utili ties Department

warehouse for his personal use; and

(d) Mr. Spaude charged personal purchases to the CityÔs tax - exempt

charge account with Core & Main, a City vendor .

These contentions are addressed below.

Sale and Delivery of Wooden Poles

21. In 2015, M r. Spaude was assisting his grandson, Bret, in the building

of the BMP racetrack, and needed utility poles for lighting the racetrack.

22. Mr. Spaude approached Mr. Hickle, who was the City Manager and

the CityÔs director of utilities at this time, and as ked him where the City

purchase d its utility poles.

23. Ms. Cason testified that Mr. Hickle thereafter asked her to obtain a

quote for the poles that Mr. Spaude requested, and to also obtain an

additional quote for the City to order poles, Ñto get a full truckload.Ò

1 In the Joint Stipulation, the Commission identified two other matters that it believed

constituted misuse of position. At the final hearing, the Commission declined to present

evidence or otherwise proceed on those two matters.

24. At that time, the City had a contract through its membership in the

Florida Municipal Power Association (FMPA) to purchase wooden utility

poles from Ace Pole Company (Ace), located in Blackshear, Georgia.

25. Ms. Cason contacted Mr. Thrif t, who testified that he was responsible

for 98 percent of AceÔs domestic sales of wooden utility poles, which included

sales to cities, co - ops, and utility companies throughout the southeastern

United States, including the City, to obtain quotes for both Mr. Spaude and

the City.

26. Mr. Thrift explained the significance of ordering a full load of poles:

When we ship a load of poles È out to our

customers, the freight is the same for everybody.

ItÔs based on the mileage amount and if you have

one pole on th at truck and say going to Bushnell,

which was I think a little over 200 miles, the

freight charges on that load, on that truck going

down there, is about $800.

If you buy one pole, say one pole thatÔs before

freight is $150, when you take the freight of 8 00

and add it to the 150, you paid 950 for that pole.

But if you ordered a truckload of them because the

freight is spread out over all the poles on the trailer

the price comes down.

27. In an email dated March 10, 2015, from Ms. Cason to Mr. Hickle, she

wrote:

Ace Pole Company can ship us a load with

[Mr. SpaudeÔs] poles mixed in. However, he will pay

an extra delivery charge, and he will have to pre -

pay for his poles. They no longer extend credit to

any customer other than the municipalities. È If

[Mr. S paude] can live with these conditions, I will

ask them for an official quote. I will order our poles

at the same time, thus saving some of the shipping

costs for both parties.

28. Ms. Cason thereafter obtained pricing information from Ace for

wooden util ity poles requested by Mr. Spaude, and for the City. Ace provided

the quotes in two separate documents. Together, the proposed order would

constitute a full load.

29. The quote for Mr. Spaude (which appears to be for a limited liability

company that he has an interest in) from Ace provides for the delivery of

seven poles. In a subsection entitled ÑDeliveryÒ it states, ÑFOB: Bushnell Fl.

VIA Boom Truck.Ò It quotes a price of $3,045.00, and states, Ñ[t]his price is

valid if ordered with the city of Bushnell F l. Order.Ò The price quote does not

reference Florida sales tax.

30. Mr. Thrift confirmed that the Ñextra delivery chargeÒ for Mr. Spaude

was added into the overall charge contained in the quote. He further testified

about the delivery via boom truck:

Pole s are big and heavy. Most places you deliver to

donÔt have any way to unload them. A boom truck,

right behind that cab is a big hydraulic arm with a

claw on the end that picks the poles up off our

truck and puts them in the racks or wherever our

customers want them.

Q. And thatÔs included in the service charge that

you offload them by way of a boom truck?

A. Yes, sir, every Ï every charge related to the

delivery is all figured in that price each.

31. Mr. Spaude provided Ms. Cason with a credit card to u se for the

purchase of his share of the poles contained in the quote. Based on the

evidence presented, it does not appear that Mr. Spaude paid sales tax for this

transaction. Mr. Spaude also stated that, based on the email from Ms. Cason

and the quote from Ace, he believed he was paying an extra delivery charge

to have the poles delivered to him.

32. Mr. SpaudeÔs quote was $3,045.00 for seven 55 - foot wooden poles. The

CityÔs quote was $3,245.00 for nine 30 - foot poles, eight 35 - foot poles, and

seven 40 - foot poles.

33. The Commission has suggested that the City did not need any

additional poles when it made this order; that it instead normally waits until

closer to the summer hurricane season to make any additional orders.

However, Ms. Cason, when asked abo ut this on cross - examination, stated:

Q. So, in March of 2015, did the city have a need for

poles at that time?

A. I wouldnÔt be able to answer that question unless

I could see what the inventory was for the poles at

that time to know whether we were low or not.

Normally we did not order poles at that time and I

know that at that time we werenÔt doing a lot of

line work or additional poles. We were just

changing out poles.

The undersigned finds that Ms. CasonÔs testimony was precise and lacking in

confusi on as to many of the facts concerning this transaction, but with

respect to whether the City did not need additional poles in March 2015 Ð as

the Commission contends Ð her memory was not as clear. Additionally,

Mr. Dixon testified that at the time of the order , the City Ñstill had a few

[poles] in stockÒ and Ñcould wait a while longer.Ò

34. Mr. Spaude testified that he had requested that Ace deliver his poles

to the BMP racetrack property, which at that point was vacant, undeveloped

land. Mr. Spaude stated he never asked the City for additional assistance in

delivering the poles, and believed that he was paying Ace an extra delivery

charge for delivery of the poles to the BMP property with a boom truck.

35. Mr. Dixon testified that when Ace delivered the poles to the City, he,

and as many as two other City employees, with a City truck, and during work

hours, then assisted in delivering the poles that Mr. Spaude had ordered to

the then - vacant BMP racetrack property. He could not recall whether

Mr. Spaude was pre sent when he and the other City employees delivered the

poles.

36. Ms. Cason testified that she was not aware if any City employees

participated in delivering the poles to the BMP racetrack property.

37. Mr. Spaude testified that he was not present when the poles were

delivered, never asked anyone from the City to assist with the delivery of the

poles, and, because he believed he had paid an extra delivery charge to A ce

for delivery with a boom truck, was not aware why Ace would have needed

any assistance in delivering the poles to the BMP racetrack property.

38. The undersigned finds that Mr. Spaude benefitted from having the

City assist him in ÑbundlingÒ his order of poles with that of the CityÔs, which

had an existing contractual relationship with A ce through the CityÔs

membership in FMPA. However, as the email and actual quotes reveal, it

appears that Mr. Spaude paid more for his seven poles ($3,045 .00 ) than the

CityÔs 24 poles ($3,245.00), which casts doubt on whether Mr. Spaude derived

any monetary b enefit from this purchase. Further, Mr. SpaudeÔs belief that

he paid to have Ace Ð and not the City Ð deliver his poles to the BMP

racetrack property was reasonable and credible.

Installation of Two Wooden Utility Poles

39. The Commission also presented evid ence concerning the CityÔs

installation of two wooden utility poles at the BMP racetrack. To be clear,

this allegation is separate and distinct from the allegations concerning the

ordering and delivery of the seven wooden utility poles from Ace discussed

a bove.

40. Mr. Spaude testified that he purchased an electrical or electrician

business Ð Strickland Electric Ð out of foreclosure. He further testified that,

among other things from this foreclosure sale, he ÑinheritedÒ three unused

concrete utility poles.

4 1. Mr. Spaude testified that he approached Mr. Hickle, and the two

orally agreed to ÑtradeÒ Mr. SpaudeÔs three concrete poles to the City, and in

return, the City would provide and install two wooden poles at the BMP

racetrack. Mr. Spaude explained that th e purpose of these two wooden poles

would be to post time lapse cameras on them, so that his family would have a

history of the construction of the BMP racetrack.

42. The agreement between Mr. Spaude and Mr. Hickle was not reduced

to writing, and as previ ously mentioned, Mr. Hickle passed away suddenly in

2018. No other witnesses testified as to the existence of this oral agreement.

43. Mr. Spaude believed this to be a Ñfair tradeÒ with the City, because the

price of concrete poles is much higher than tha t of wooden poles, and because

he agreed to provide the City with three concrete poles, in exchange for the

City providing and installing two wooden poles.

44. Mr. Dixon testified about the two wooden poles at the BMP racetrack

property. He testified that ÑIÔm almost sure we set the poles. We had the

other guys there. ItÔs been so long I canÔt recall.Ò He further testified that he

recalled putting cameras on the poles, but when again asked about installing

the poles, he stated, ÑI canÔt answer that. Like I said before, IÔm not really

sure.Ò Mr. Dixon had no recollection of picking up concrete poles from

Mr. Spaude.

45. Mr. Dixon testified that city employees installed cameras on the poles.

Mr. Spaude testified that no city employees installed cameras on th e poles.

46. Mr. Fuller testified that, when he worked for the City, he recalled

picking up concrete poles from Strickland Electric and delivering them to the

City. He did not recall how many poles he picked up, or when he did this. He

could not recall wh at the City did with the concrete poles.

47. Ms. Young testified that the city manager would ÑpotentiallyÒ have the

ability to approve this alleged ÑtradeÒ arrangement, stating, ÑI donÔt know

that thereÔs anything that would prohibit me from doing that, t hat IÔm aware

of.Ò Ms. Young also stated that she would not have authorized this trade,

because it would interfere with the CityÔs annual financial audit, and because

ÑI donÔt think it would be a good practice for the City.Ò

48. Ms. Young calculated the c ost to the City in providing and installing

the two wooden poles to be $1,390 .00 .

49. The undersigned finds that the evidence presented on this issue lacked

sufficient weight to establish the existence of the Ñtrade,Ò or whether the

ÑtradeÒ was unlawful or improper, or resulted in a special privilege or benefit

to Mr. Spaude. The undersigned finds that the only evidence of the ÑtradeÒ is

through Mr. SpaudeÔs testimony that this was an oral agreement;

additionally, neither Mr. Dixon nor Mr. Fuller distinct ly remembered the

facts surrounding this issue Ð namely, the installation of the wooden poles, or

what happened to the concrete poles. Further, Ms. Young testified that she,

as city manager, would not be prohibited from approving such a transaction.

Plumbin g Supplies from the City

50. Mr. Spaude hosted an annual Ñcorn mazeÒ on property he owned near

the BMP racetrack, in which members of the public could participate. He

testified that all of the proceeds received from the corn maze went to the

Sumter County Youth Center.

51. Mr. Fussell testified that when he worked in the CityÔs Utilities

Department, if a citizen needed some type of material that the City had in its

possession, the City would sell it to that citizen at cost.

52. Mr. Spaude testified that he decided to extend the corn maze to

additional adjoining property south of the original corn maze, and stated:

I was not sure whether we was going to have to run

more pipe in order to do that so I went to the city

and asked if I could borrow two lengths of four - inch

pipe and saddle taps in case that I needed them

and if I didnÔt need them I would return them and

if I did need them I would replace and pay for

them.

53. Mr. Spaude went to the CityÔs Utilities Department and requested two

four - inch PVC pi pes, and two tapping saddles. 2

54. Mr. Wietan testified that he used the CityÔs bucket truck to deliver a

piece of PVC pipe to the BMP racetrack for the corn maze. He further

testified that he never delivered PVC pipes to other City residents.

55. Mr. Fu ssell testified that the City kept an inventory of its supplies.

For this particular transaction, he stated that he did not Ñcharge outÒ the

supplies, but wrote a description of the supplies on a piece of paper and gave

it to another employee, Joey Chandle r.

56. Mr. Fussell testified that after some time, he called Mr. Spaude and

asked him to return the supplies because of unspecified small city gossip and

rumors.

57. Mr. Spaude testified that he did not use the pieces of PVC pipe or

tapping saddles, Ñan d I entirely forgot to return them in a timely manner.Ò

He confirmed that Mr. Fussell called him and asked him to either return

them or to let the City know so it could bill Mr. Spaude.

58. Mr. Spaude testified that he immediately returned the PVC pipe an d

tapping saddles unused, with a note that thanked the City for the materials.

Mr. Fussell confirmed that the City received these supplies, and that they

had not been used.

59. Mr. Spaude stated that he never received a bill or charge from the City

for th ese plumbing supplies, and that no one from the City ever told him that

he owed the City any money for these plumbing supplies.

60. Ms. Young calculated the cost to the City for these plumbing supplies

and delivery to be $205 .00 ($130 .00 for supplies, $75 .00 for delivery).

61. The undersigned finds that Mr. Spaude derived a benefit from

possessing the plumbing supplies, and having the City deliver the PVC pipes,

which he originally intended to use for the corn maze, even if he did not use

2 A tapping saddle allows tapping into a water line while it is under pressure, allowing the

addition of another water line.

and ultimately r eturned them. He knew, or should have known, that

obtaining and possessing City property, without first paying for the property,

was unlawful and improper.

Personal Charges for Plumbing Supplies on City Account

62. Core & Main is a commercial waterworks company that distributes

waterworks materials. It sells these materials directly to contractors, as well

as municipalities, counties, and states. It has over 300 locations.

63. Mr. McDaniel, a longtime employee of Core & Main at its Wildwood

store, testi fied that the public generally does not come to its store, because

Ñ[w]e donÔt sell things that consumers would generally use at their home.

Usually professionals are installing this type of material.Ò

64. However, Mr. McDaniel stated that if a member of the public came to

his Core & Main store in Wildwood, he would sell them these materials, as

long as they made the minimum purchase ($50 .00 ) and paid with a credit

card, or possibly a company check.

65. The City of Bushnell is approximately a 30 - minute dr ive from the Core

& Main store in Wildwood. The City has an account with Core & Main; for

purchases, Mr. McDaniel explained that an employee of the City would

normally call or come in to pick up materials and charge the CityÔs account,

and Core & Main woul d then provide the City with a monthly statement that

listed the charges for the items sold.

66. Under Florida law, the City is exempt from sales tax purchases,

including purchases from Core & Main.

67. In September 2017, in the immediate aftermath of Hu rricane Irma,

Mr. Spaude went to Core & Main to purchase fittings for some four - inch PVC

pipe and other materials that he needed for the corn maze, which, as

previously mentioned, Mr. Spaude hosted on his property to benefit the

Sumter County Youth Center. He stated that he went to Core & Main, after

looking elsewhere, because he was Ñlooking for someplace that had the right

type of stuff.Ò

68. When he arrived at Core & Main, its power had not yet been restored

from the hurricane. However, the store was op en, and Mr. McDaniel met

Mr. Spaude and assisted him. Mr. McDaniel was able to find the items

Mr. Spaude needed.

69. Because the store had no power, Mr. McDaniel was unable to charge

Mr. SpaudeÔs credit card. Mr. McDaniel said that Mr. Spaude told him that

he was the Mayor of the City of Bushnell, and that he believed that

Mr. Spaude told him that the materials were for a corn maze for the City.

70. Because he could n o t use a credit card at checkout, Mr. Spaude asked

Mr. McDaniel if the City had a charge ac count. When Mr. McDaniel said yes,

Mr. Spaude testified,

IÔm assuming that I said, well, IÔm the mayor. If

you want to bill it to them [the City], IÔll go by and

tell them that I charged it here and whenever they

get the invoice theyÔll let me know and IÔl l

immediately pay it and thatÔs what happened.

71. Mr. McDaniel confirmed this. He testified,

He was the mayor of Bushnell, it was right after a

hurricane, and I thought nothing of someone from

the city coming in and picking up materials that

would be us ed for a repair. It was line repair

material.

* * *

[I]t was obviously material that was used, being

used for repairing a four - inch line. So like I said, if

they were trying to get a corn maze up and running

for the city, this is repair material, I didnÔ t question

it. Nor did my boss.

72. Mr. Spaude was able to charge the items he wanted to the CityÔs

account, and took them with him that day.

73. Mr. McDaniel created a handwritten invoice for the items purchased

that included the job name ÑCorn Maze.Ò I t also included ÑCity of Bushnell,Ò

and contained Mr. SpaudeÔs printed name and signature. This handwritten

invoice reflects the items Mr. Spaude purchased that day, but did not reflect

the amounts charged or whether Core & Main charged sales tax.

74. Aft er Core & MainÔs power was restored, Mr. McDaniel inputted the

items Mr. Spaude purchased into its computer and generated an invoice,

dated September 19, 2017, that reflects the City as the customer and the job

name as ÑCORN MAZE.Ò This invoice reflects a total price for the items

purchased of $334.97, and does not reflect any sales tax charged.

75. Mr. Spaude testified that after he left Core & Main that day, he

promptly went to City Hall and told the staff about his purchase on the City

account, and Ñwhe n the bill came in to call me and tell me what it was and I

would bring them a check and thatÔs exactly what happened.Ò

76. Ms. Ragan confirmed that Mr. Spaude informed the City of the

purchase. She stated that she believed that Mr. Spaude paid Core & Mai n

directly for the purchase, and that no City funds were expended on this

transaction.

77. Ms. Ragan further testified that she informed the CityÔs auditors of

Mr. SpaudeÔs purchase, in which he used the CityÔs charge account at Core &

Main, and which appe ared in a list of charges from Core & Main, because she

felt it was fraudulent and not authorized under the CityÔs procurement

policy, which provides that:

Departmental purchases fall under the general

authority and responsibility of the department

heads a nd within the general guidelines and

constraints of the city budget. Purchases are

dictated by standard reoccurring needs and

planned budget acquisitions.

It is the department heads responsibility to direct

the purchasing process within his/her department

in accordance with the requirements of this policy

and the general budget. It is also the City

Managers [sic] responsibility to exercise general

supervision over the respective departments to

assure that all requirements of this policy are

faithfully exec uted.

78. The Commission also presented the testimony of Mr. Lowery, who

owns a hardware store in Bushnell. He testified that his store could order the

items that Mr. Spaude purchased at Core & Main, although his store does not

keep those items in stock .

79. The undersigned finds that Mr. Spaude derived a special benefit for

himself by using the CityÔs charge account at Core & Main to purchase items

for his private use. Further, by using the CityÔs sales tax - exempt charge

account, he did not pay sales t ax on this purchase. The Commission

presented credible evidence that the CityÔs procurement policy did not permit

the Mayor , or members of the City Council , to purchase items using the CityÔs

accounts.

Ultimate Findings of Fact

80. 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. SpaudeÔs purchase of wooden utility poles in conjunction with the

CityÔs purchase of wooden utility poles from the same vend or, or that the

CityÔs installation of two other wooden utility poles at private property at a

separate time, constituted violations of section 112.313(6).

81. The undersigned further finds, as a matter of ultimate fact, that the

Commission proved, by cle ar and convincing evidence, that Mr. SpaudeÔs

efforts in having the City deliver two PVC pipes, and his obtaining two

tapping saddles, from the CityÔs Utilities Department, for use in the corn

maze, constituted an improper use of his position as Mayor that was not

consistent with the performance of his public duties, and thus constituted a

violation of section 112.313(6).

82. The undersigned additionally finds, as a matter of ultimate fact, that

the Commission proved, by clear and convincing evidence, that Mr. SpaudeÔs

use of the CityÔs charge account at Core & Main, to obtain plumbing supplies

for the corn maze, and for which he repaid Core & Main directly after it

charged the City, constituted an improper use of his position as Mayor that

was not consiste nt with the performance of his public duties, and thus

constituted a violation of section 112.313(6).

C ONCLUSIONS OF L AW

83. DOAH has jurisdiction over the subject matter and the parties to this

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

84. Section 112.322 and Florida Administrative Code R ule 34 - 5.0015,

authorize the Commission to conduct investigations and to make public

reports on complaints concerning violations of part III, chapter 112, of the

Code of Ethics for Public Officers and Employees.

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

the Commission, the party asserting 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, through its Advocate, that is

asserting the affirmative: that Mr. Spaude violated section 112.313(6).

Commission proceedings which seek recomm ended penalties against a public

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

convincing evidence. See Latham v. Fla . CommÔn on Ethics, 694 So. 2d 83

(Fla. 1st DCA 19 9 7). Therefore, the Commission has the burden of

establishin g, by clear and convincing evidence, the elements of Mr. SpaudeÔs

violations.

86. Clear and convincing evidence Ñrequires 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

distin ctly remembered; the testimony must be

precise and lacking in confusion as to the facts in

issue. The evidence must 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)).

87. Section 112.313(6), provides:

MISUSE OF PUBLIC POSITION. Ð No public

officer, employee of an agenc y, or local

governmental attorney shall corruptly use or

attempt to use his or her official position or any

property or resource which may be within his or

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

secure a special privilege, benefit, or exempti on for

himself, herself, or others. This section shall not be

construed to conflict with s. 104.31.

88. 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 inconsistent with the proper performance of his

or her public duties.

89. Courts have provided further direction on what constitutes acting

Ñcorruptly Ò under section 112.313(6). In Blackburn v. Commission on Ethics,

the First 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 th e proper performance of her public

duties and would be a violation of the law or code of ethics in part III of

chapter 112.Ò 589 So. 2d 431, 434 (Fla. 1st DCA 1991); see also Siplin v.

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

90. To establi sh a violation of section 112.313(6), the Commission must

prove, by clear and convincing evidence, that:

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

b. Mr. Spaude: (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. SpaudeÔs actions must have been taken to secure a special privilege,

benefit, or exemption for himself or others; and

d. Mr. Spaude must have acted corruptly, that is, with wrongful intent

a nd for the purpose of obtaining any benefit which is inconsistent with the

proper performance of his public duties.

91. The evidence established that Mr. Spaude, who served as Mayor of the

City of Bushnell, was, at all relevant times, a public employee su bject to the

requirements of part III, chapter 112, at the time of the alleged violations.

92. The evidence also established that Mr. Spaude, as Mayor of the City of

Bushnell, had access to certain employees and resources of the City of

Bushnell.

Sale an d Delivery of Wooden Poles

93. The undersigned concludes that the evidence failed to establish, by

clear and convincing evidence, that Mr. SpaudeÔs ordering and purchase of

wooden utility poles in conjunction with the CityÔs purchase of wooden utility

pol es from the same vendor, was done to secure a special privilege or benefit

for Mr. Spaude, or that Mr. Spaude acted corruptly.

94. The evidence presented showed that Mr. Spaude asked Mr. Hinkle

about obtaining wooden poles, and received a quote from Ace i n which the

poles he wished to purchase , and have Ace deliver , were ÑbundledÒ with poles

that the City ordered, which provided both Mr. Spaude and the City a lower

cost.

95. Mr. SpaudeÔs credible testimony, when considered in conjunction with

the written quote from Ace, established that he believed he was paying more

than the City for the poles, and for Ace to deliver the poles with a boom truck.

The evidence further established that Mr. Spaude paid more for his seven

poles than the City paid for its 24 po les. 3 Mr. Spaude further credibly

testified that he had no reason to believe that Ace required any additional

assistance with the delivery of the seven wooden poles to his property, and it

was unclear why the City assisted in the delivery of these wooden p oles.

Installation of Two Wooden Utility Poles

96. The undersigned concludes that the evidence failed to establish, by

clear and convincing evidence, that the CityÔs installation of two wooden poles

on private property, and as Mr. Spaude requested, was d one to secure a

special privilege or benefit for Mr. Spaude, or that Mr. Spaude acted

corruptly.

3 Although the Commission also contends that Mr. Spaude enjoyed an additional benefit of

not paying Florida sales tax on this transaction, it is unclear whether Ace, a Georgia

company, would impose sales tax on its sales to Mr. Spaude. As Mr. Spaude points out in his

Proposed R ecommended O rder, states like Florida could not compel out - of - state companies to

collect or remit tax on sales to state residents unless the company had a physical presence in

the state. See Quill Corp. v. N . Dakota, 504 U.S. 298 (1992). The Supreme Court

subsequently overruled Quill Corporation . See S . Dakota v. Wayfair, Inc. , 138 S. Ct. 2080

(2018). However, the Florida Legislature did not act on the Wayfair decision until the most

recent legislative session. See Ch. 2021 - 002, Laws of Fla. Mr. SpaudeÔs purchase of the

wooden poles occurred in 2015, well befor e Wayfair or the Florida LegislatureÔs recently -

enacted legislation.

97. As found, the evidence presented on this issue lacked sufficient weight

to establish whether, as Mr. Spaude testified, he and Mr. Hickie agreed to a

trade of three concrete poles to the City, in exchange for the City providing

and installing two wooden poles at the private property. The other

individuals who testified concerning this matter could not distinctly

remember the facts, though then recalled picki ng up concrete poles and

delivering them to the City, and Ms. Young testified that a city manager

would not be prohibited from approving such a transaction.

Plumbing Supplies from the City

98. The undersigned concludes that the evidence established, by c lear and

convincing evidence, that Mr. SpaudeÔs having the City provide him with two

PVC pipes and two tapping saddles, and delivering the two PVC pipes to his

private property, which he intended to use for the corn maze, constituted an

improper use of his position that provided him a special benefit, even if he

ultimately , upon request, returned these plumbing supplies to the City

unused. The undersigned concludes that Mr. Spaude acted corruptly, because

he knew, or should have known, that obtaining and po ssessing City property,

without paying for the property, was unlawful and improper.

Personal Charges for Plumbing Supplies on City Account

99. The undersigned concludes that the evidence established, by clear and

convincing evidence, that Mr. Spaude Ô s de cision to use the CityÔs charge

account at Core & Main to purchase plumbing supplies for his private use

(the corn maze), constituted an improper use of his position that provided

him a special benefit. Although Mr. Spaude credibly testified that he repaid

this charge, he did so without paying applicable Florida sales tax, and the

Commission presented credible evidence that such a purchase was not

authorized under the CityÔs procurement policy. The undersigned concludes

that Mr. Spaude acted corruptly becau se he knew, or should have known,

that only those city employees designated under its procurement policy could

purchase items on behalf of the City, and that his doing so was unlawful and

improper.

Recommended Penalty

100. The penalties available for a f ormer 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 .00 ; and (c) restitution

of any pecuniary benefits received because of the violatio n committed.

101. Neither the Code of Ethics, o r chapter 34 - 5, recognize any mitigating

or aggravating factors to consider when determining the appropriate penalty.

102. The Commission argues, in its P roposed R ecommended O rder, for a

significant penalty: a public censure and reprimand, and the maximum civil

penalty of $10,000.00. The Commission contends that Mr. Spaude Ñis still

refusing to acknowledge facts before him that reflect his many requests for

special treatment from the City, his agency. Without a substantial deterrent,

Respondent is bound to continue with the same behavior.Ò

103. The undersigned has reviewed the previous Commission cases

involving violations of section 112.313(6) and the punishment imposed. The

undersigned recommends the imposit ion of a fine of $5,000.00, as well as a

public censure and reprimand, as the appropriate penalty for Mr. SpaudeÔs

violation of section 112.313(6).

R ECOMMENDATION

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

undersigned hereby R ECOMMENDS that the Commission enter a final order

finding that Respondent, William Spaude, violated section 112.313(6), and

that Respondent be subject to a $5,000.00 fine, as well as a public censure

and reprimand.

D ONE A ND E NTERED this 1 7 th day of Novemb er , 2021 , in Tallahassee,

Leon County, Florida.

S

R OBERT J. T ELFER III

Administrative Law Judge

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

www.doah.state.fl.us

Filed with the Clerk of the

Divi sion of Administrative Hearings

this 1 7 th day of November , 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 Plaza Level 01 , The Capitol

Tallahassee, Florida 32317 - 5709 Tallahassee, Florida 32399 - 1050

Richard E. Doran, Esquire Kevin A. Forsthoefel, Esquire

Ausley & McMullen , P . A . Ausley & McMullen , P.A.

123 South Calhoun Street 123 South Calhoun Street

P ost O ffice Box 391 Post Office Box 391

Tallahassee, Florida 32301 Tallahassee, Florida 3230 1

Richard W. Hennings, Esquire Melody A. Hadley, Esquire

Richard W. Hennings, P.A. Office of the Attorney General

600 Jennings Avenue Plaza Level 01 , The Capitol

Eustis, Florida 32726 Tallahassee, Florida 32399 - 1050

Eugene Dylan Rivers, Esquire

Ausley & McMullen , P.A.

123 South Calhoun Street

Pos t Office Box 391

Tallahassee, Florida 32301

C. Christopher Anderson, III,

Executive Director and General Counsel

Florida Commission on Ethics

Post Office Drawer 15709

Tallahassee, 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 the Final Order in this

case.