99-002411EC In Re: Carolyn Ford vs. *
 Status: Closed
Recommended Order on Monday, April 17, 2000.


View Dockets  
Summary: Evidence failed to establish that Respondent, a Quincy City Commissioner, advocated the appointment of her son for a position with the police department.

1STATE OF FLORIDA

4DIVISION OF ADMINISTRATIVE HEARINGS

8IN RE: CAROLYN FORD, )

13)

14Respondent . ) Case No : 99-2411EC

21_________________________________)

22RECOMMENDED ORDER

24Pursuant to notice, the Division of Administrative Hearings,

32by its duly-designated Administrative Law Judge, Carolyn S.

40Holifield, held a formal hearing in the above-styled case on

50December 8-9, 1999, in Tallahassee, Florida.

56APPEARANCES

57For Advocate: James H. Peterson, III, Esquire

64Office of the Attorney General

69The Capitol, Plaza Level 01

74Tallahassee, Florida 32399-1050

77For Respondent: Jack L. McLean, Jr., Esquire

84McGuire, Woods, Battle & Booth, LLP

90285 Peachtree Center Avenue, Northeast

95Marquis Two Tower, Suite 220

100A tlanta, Georgia 30303-1234

104STATEMENT OF THE ISSUES

108The issues for determination are: (1) whether Respondent,

116Carolyn Ford, as a member of the Quincy City Commission, violated

127Section 112.3135(2)(a), Florida Statutes, by advocating the

134appointment of her son for a position with the Quincy Police

145Department; (2) whether Respondent violated Section 112.313(6),

152Florida Statutes, by using her official position as a member of

163the Quincy City Commission to attempt to obtain a job for her son

176with the Quincy Police Department; and (3) if so, what penalty is

188appropriate.

189PRELIMINARY STATEMENT

191On March 12, 1999, the Florida Commission on Ethics (Ethics

201Commission) issued an Order Finding Probable Cause to believe

210that Respondent, Carolyn Ford, as a member of the Quincy City

221Commission, violated Section 112.3135(2)(a), Florida Statutes, by

228advocating the appointment of her son to a position in the Quincy

240Police Department. Additionally, the Ethics Commission found

247that there was probable cause to believe that Respondent violated

257Section 112.313(6), Florida Statutes, by using her official

265position to attempt to obtain a job for her son with the Quincy

278Police Department. On or about May 27, 1999, the case was

289forwarded to the Division of Administrative Hearings for

297assignment to an administrative law judge to conduct a public

307hearing and prepare a recommended order.

313Prior to the final hearing, the parties submitted a Joint

323Prehearing Stipulation containing a number of stipulations of

331fact and law. The facts to which the parties stipulated required

342no proof at hearing.

346At the final hearing, Advocate called four witnesses:

354Celese Whiddon, Robert Barkley, Dr. Harold Henderson, and Chief

363Rodney Moore. Advocate also offered three exhibits that were

372received into evidence and proffered one exhibit, Advocate's

380Exhibit AE-4. Upon consideration of Exhibit AE-4, Section

38890.610(1), Florida Statutes, and Raydo v. State , 696 So. 2d 1225

399(Fla. 1st DCA 1997), approved in part and quashed in part, 713

411So. 2d 996 (Fla. 1998), Advocate's Exhibit AE-4 is also received

422into evidence and considered in this proceeding. Also, at

431Advocate's request, official recognition was taken of the City of

441Quincy Career Service Rules. Respondent testified on her own

450behalf and called 11 witnesses: Glendell Russ, Celese Whiddon,

459Auburn Ford, Jr., Anthony Powell, Kenneth Cowen, James Corder,

468Keith Dowdell, Robert Barkley, Joe Brinson, Adrienne Allen, and

477Mary Corder. Respondent offered five exhibits that were received

486into evidence.

488A Transcrip t of the proceeding was filed with the Division

499of Administrative Hearings on December 28, 1999. By agreement of

509the parties, the time set for filing proposed recommended orders

519was January 31, 2000. At Advocate's request, the time for filing

530proposed recommended orders was extended to February 14, 2000.

539Both parties timely filed Proposed Findings of Fact and

548Conclusions of Law under the extended time frame.

556FINDINGS OF FACT

5591. Respondent, Carolyn Ford (Respondent), currently serves

566as a city commissioner for the City of Quincy, Florida, having

577first been elected to that office on March 31, 1998.

5872. As a city commissioner, Respondent is subject to the

597requirements of Part III, Chapter 112, Florida Statutes, the Code

607of Ethics for Public Officers and Employees.

6143. Sections 2.08, 3.01, 3.02, and 9.01 of the Quincy City

625Charter (Quincy City Charter or Charter) give the Quincy City

635Commission (City Commission or Commission) the authority to

643appoint and remove the city manager, the city attorney, and the

654city clerk.

6564. Under Section 3.04 of the Quincy City Charter, the city

667manager is given the exclusive authority to employ or appoint

677certain employees and administrative officers for the City of

686Quincy, including the police chief. Moreover, such employees or

695administrative officers serve at the pleasure of the city

704manager, who may, "when he deems necessary for the good of the

716services . . . suspend in writing, with or without pay, or remove

729any employee under his jurisdiction . . . ."

7385. Section 204(b) of the Quincy City Charter expressly

747prohibits the Commission or its members from dictating the

756appointment or removal of any city employee or administrative

765officer whom the city manager or any of his subordinates are

776empowered to appoint. Nonetheless, that provision of the Charter

785permits city commissioners, while in open or executive session,

794to "express their views and fully and freely discuss with the

805city manager anything pertaining to the appointment and removal

814of such officers and employees." By expressing their views to

824the city manager regarding the appointment or removal of city

834officials and employees, city commissioners may influence the

842hiring and firing of such officials or employees.

8506. Shortly before or after the March 1998 election, Roger

860Griswald, police chief for the City of Quincy, submitted his

870letter of resignation to City Manager Kenneth Cowen. Thereafter,

879City Manager Cowen appointed Robert Barkley (Barkley), who had

888served as Griswald's assistant for four years, as interim police

898chief. Barkley served in this position for about a month.

9087. Sometime during the week of May 17, 1998, City Manager

919Cowen called Barkley and asked whether he would accept the

929appointment as permanent police chief.

9348. On May 20, 1998, after City Manager Cowen talked to

945Barkley about being appointed permanent police chief, Barkley

953telephoned then Quincy City Commissioner Glenn Russ (Commissioner

961Russ or Russ). At Barkley's request, Commissioner Russ went to

971the Quincy Police Department (police department) to meet with

980Barkley. During the course of the meeting, it became apparent

990that Barkley had called the meeting in order to seek and gain

1002Commissioner Russ' support of Barkley's appointment as permanent

1010police chief for the police department.

10169. Prior to Barkley's calling Commissioner Russ, he was

1025well aware that Commissioner Russ was dissatisfied with the

1034police department because Russ had publicly expressed his views.

104310. Since 1995, Russ had been an outspoken critic of the

1054police department, including Barkley. Russ' criticism stemmed

1061from the police department's refusal to launch an independent

1070investigation of a 1995 fatal car accident that involved a Quincy

1081police officer and resulted in the death of two or three people,

1093one of whom was Russ' cousin.

109911. During the May 20, 1998, meeting, Barkley disclosed to

1109Commissioner Russ that City Manager Cowen wanted to appoint

1118Barkley as permanent police chief. Barkley then told

1126Commissioner Russ that he wanted to "bury the hatchet" and have

1137Russ work with him. However, Commissioner Russ rejected both

1146offers and was adamant that under no circumstances was he willing

1157to "bury the hatchet."

116112. At some point during the May 20, 1998, meeting between

1172Barkley and Russ, Auburn Ford, Jr. (Ford), the adult son of

1183Respondent, stopped by the police department after he saw his

1193friend Russ' car parked there. Barkley invited Ford to come into

1204his office. Once Ford was in the office, Barkley asked him what

1216it would take for "us to get along," to which Ford replied,

"1228Nothing." Barkley then told Ford that City Manager Cowen was

1238going to name Barkley police chief, and that there could be a

"1250second-in-command" job for Ford. This idea was nixed by Ford

1260who stated emphatically that he wanted to be police chief.

1270Barkley then suggested that he should be police chief because he

1281had more experience in law enforcement than Ford. However,

1290Ford's position remained unchanged and he insisted that he wanted

1300to be police chief, not second-in-command to Barkley.

130813. Barkley later called Anthony Powell to the May 20,

13181998, meeting with Commissioner Russ and Ford. Barkley hoped to

1328persuade Powell to support his appointment as the permanent

1337police chief. Powell's support was important because he was

1346considered by many in the community to be the frontrunner for the

1358Quincy city manager position after City Manager Cowen was removed

1368from office.

137014. Once Powell arrived at the May 20, 1998, meeting, in an

1382effort to put their past disputes behind them, Barkley expressed

1392his desire to "bury the hatchet." In response, Powell stated

1402only that Russ was his friend and that he did not want to get in

1417the middle of any conflict between Russ and Barkley. Further,

1427Powell stated that he only wanted to be a good employee.

143815. Some time ago, w hen both Barkley and Powell were city

1450employees, Barkley was Powell's supervisor. The relationship

1457between Barkley and Powell became strained after, based on

1466Barkley's recommendation, Powell was reprimanded and suspended

1473for a week without pay.

147816. The May 20, 1998, meeting initiated by Barkley and held

1489in his office, failed to gain for him the support he wanted.

1501Neither Russ, Powell, nor Ford responded positively to Barkley's

1510overtures. Russ told Barkley, "it was war" between them and he

1521would not "bury the hatchet." Powell, though not as outspoken as

1532Russ, never agreed to support Barkley as police chief. Finally,

1542Ford never agreed to serve as second-in-command but rather

1551insisted that he wanted to be police chief for the City of

1563Quincy.

156417. Russ, Fo rd, and Powell were friends who sometimes

1574socialized together. It was at a social attended by Russ, Ford,

1585and Powell in January 1998 that the idea of Ford's becoming

1596police chief was first discussed. Respondent was not present at

1606this event.

160818. On or a bout May 28, 1998, Cowen advised Barkley that he

1621was going to appoint him police chief and that the appointment

1632would be announced at an official ceremony at City Hall the

1643following day, Friday, May 29, 1998, at 11:00 a.m.

165219. Both Cowen and Barkley knew that such an appointment

1662might be short-lived because the City Commission had recently

1671directed the attorney for the city to prepare a resolution for

1682then City Manager Cowen's removal. Nonetheless, Cowen and

1690Barkley were optimistic that Barkley's appointment would not be

1699immediately jeopardized because of their belief that Barkley had

1708community support.

171020. On the evening of May 28, 1998, around 9:00 p.m.,

1721Barkley was paged by his wife and given Ford's telephone number

1732to call. Ford had called Barkley after learning that Barkley

1742would be appointed police chief the next day. Later that

1752evening, Barkley returned Ford's call. Ford asked Barkley if he

1762was going to accept the position of police chief. In response

1773Barkley indicated that he was going to accept the position. Ford

1784then told Barkley that he should not accept the position because

"1795You know what's going to happen next Tuesday night," referring

1805to the resolution which would be presented at the City Commission

1816meeting Tuesday night to replace Cowen as city manager.

182521. Barkley was not sure what Ford meant by his reference

1836that "something would happen" by next Tuesday. Barkley was

1845unsure whether Ford was threatening to harm Barkley and/or his

1855family or whether Ford was referring to the upcoming City

1865Commission meeting. As a result of his conversation with Ford,

1875Barkley became concerned for his safety and that of his family.

188622. After the telephone conversation with Ford, Barkley

1894called his friend, then Quincy Police Officer James Corder and

1904expressed his concern about Ford's call. Officer Corder then

1913contacted Captain Jim Godwin of the Gadsden County Sheriff's

1922Office and reported the incident. Later that night, Barkley told

1932his wife and Dr. Harold Henderson, Superintendent of Gadsden

1941County Public Schools and Barkley's best friend, about the

1950telephone conversation with Ford.

195423. At about 8:00 a.m. the next morning, Friday, May 29,

19651998, Ford was told that Barkley had made a report to the Gadsden

1978County Sheriff's Office, alleging that Ford had threatened him.

1987In an effort to clear up Barkley's misperception of Ford's

1997comments, Ford immediately called Dr. Henderson and explained

2005that he had not threatened Barkley. Ford then asked

2014Dr. Henderson to talk to Barkley about the situation and convey

2025that the comments were not a threat. Dr. Henderson called

2035Barkley that same morning but was unable to convince him that

2046Ford was not a threat.

205124. Later that morning, at about 11:00 a.m., the scheduled

2061ceremony was held at Quincy City Hall for Barkley's swearing in

2072as police chief. This event, attended by a number of community

2083leaders as well as Barkley's family and friends, was planned to

2094gather support for Barkley to remain in the police chief position

2105after the new city manager was appointed. It was anticipated

2115that the new city manager would be appointed within two weeks.

212625. At the conclusion of the ceremony, Ford went to Barkley

2137in a non-threatening manner, congratulated Barkley and indicated

2145that he wanted to work with him. Ford also told Barkley that

2157they needed to talk and settle the matter. Thereafter, a brief

2168verbal confrontation ensued between Ford and Officer Corder, who

2177was near Barkley. At that time, there were a number of officers

2189around Barkley who knew about the alleged threat and,

2198consequently, were on heightened alert. As Ford approached

2206Barkley, some of the officers moved toward Ford in a threatening

2217manner. Thereafter, in an effort to prevent the situation from

2227escalating, a police officer escorted Ford from the building.

223626. After Ford was escorted from City Hall, he called his

2247mother, Respondent, and told her about the alleged threat and the

2258confrontation with the police officers after the swearing-in

2266ceremony. In describing the incident to Respondent, Ford stated

2275that the police officers had "encircled him and . . . had their

2288hands on their guns."

229227. After the conversation with Ford, Respondent became

2300concerned for her son's safety. She believed that the situation

2310involving her son's alleged threat was simply a misunderstanding

2319and one that needed to be resolved immediately to prevent the

2330matter from becoming a more serious problem.

233728. In an effort to quell any criminal repercussions

2346against her son which could have resulted from Barkley's

2355allegation and out of concern for his safety, Respondent

2364requested the assistance of Dr. Henderson to help to resolve the

2375misunderstanding between Barkley and her son. On May 29, 1998,

2385after learning about Ford's alleged threat and the encounter with

2395the police officers, Respondent called Dr. Henderson. Respondent

2403explained the situation regarding the alleged threat and

2411requested that Dr. Henderson meet with her and Barkley in order

2422to resolve the misunderstanding. Because Dr. Henderson

2429considered both Respondent and Barkley friends, he agreed to

2438arrange and facilitate such a meeting.

244429. When Respondent arrived at Dr. Henderson's office the

2453afternoon of May 29, 1998, she asked that Dr. Henderson "show

2464some leadership" and help resolve the situation between her son,

2474Ford, and Barkley. During the first part of the meeting, when

2485only Respondent and Dr. Henderson were present, the focus of the

2496meeting was the alleged threat. Respondent and Dr. Henderson

2505discussed the alleged threat and agreed that the matter was

2515getting "out-of-hand" and had escalated to the point where

2524something had to be done. Further, Respondent indicated that she

2534did not believe her son would make such a threat and that the

2547whole incident was a misunderstanding.

255230. Dr. Henderson knew Ford and concurred with Resp ondent's

2562opinion that Ford would not make such a threat. However, Dr.

2573Henderson had been unable to convince Barkley of this in their

2584previous two telephone conversations regarding the matter.

259131. At some point during the May 29, 1998, meeting, Dr.

2602Henderson called Barkley and Respondent called Ford to join the

2612meeting.

261332. Barkley arrived at the meeting before Ford. When

2622Barkley arrived, Respondent discussed her concerns relative to

2630the alleged threat. Respondent's comments to Barkley focused on

2639the alleged threat. In fact, she said the same things to Barkley

2651that she had said earlier to Dr. Henderson. That is, she did not

2664believe Auburn Ford would make such a threat, the incident was

2675simply a misunderstanding, and the matter needed to be resolved.

2685This part of the conversation lasted about 15 or 20 minutes and

2697concluded after Barkley explained that it was just a

2706misunderstanding and that the matter had been "taken care of."

271633. Following the exchange regarding the alleged threat,

2724with only Respondent, Barkley, and Dr. Henderson present, there

2733was a discussion of problems with the police department.

2742Respondent indicated her general dissatisfaction with the police

2750department and her belief that the police department was "out of

2761control." Respondent stated that she thought her son could be a

"2772liaison" between the police and the Commission to help bridge

2782the gap and solve some the department's "perception problems."

2791However, in making these very general comments, Respondent never

2800mentioned Ford's getting a job with the police department.

280934. After the aforementioned discussion, Ford arrived at

2817the meeting in Dr. Henderson's office. Once Ford arrived,

2826Respondent wanted Barkley and Ford to discuss and resolve the

2836issue relative to the alleged threat. With Dr. Henderson serving

2846as facilitator, Barkley and Ford discussed the alleged threat.

2855Ford explained that Barkley had simply misinterpreted his

2863comment.

286435. Once the issue of the alleged threat was resolved, the

2875discussion between Barkley and Ford shifted to the possibility of

2885Ford's working for Barkley within the police department. Prior

2894to the May 29, 1998, meeting, Dr. Henderson was aware that Ford

2906wanted to be police chief and, as facilitator, thought this

2916matter was one that could be worked out amicably between Barkley

2927and Ford. To this end, as part of this meeting, Barkley and

2939Ford, with Dr. Henderson as facilitator, discussed Ford's working

2948in the police department under Barkley.

295436. At some point during the discussion concerning the

2963possibility of Ford's working for the police department, Ford

2972stated that he had the support of the city commissioners.

2982Because the City Commission had five members, Ford's statement

2991implied that he had the support of three of the commissioners.

3002Respondent was not involved in this part of this discussion and

3013there is no indication that Respondent heard the comment.

302237. Respondent was in Dr. Henderson's office during the

3031meeting between Barkley, Ford, and Henderson but was on the other

3042side of the very large office looking at a television program.

3053Respondent believed that the misunderstanding could be resolved

3061if Dr. Henderson facilitated a discussion between Barkley and

3070Ford. Therefore, Respondent did not participate nor was she

3079involved in the discussions between Barkley and Ford, including

3088the discussion about Barkley's bringing Ford on board to work

3098with the police department.

310238. The meeting at Dr. Henderson's office ended after Agent

3112Brinson of the Florida Department of Law Enforcement came by Dr.

3123Henderson's office to interview Barkley and Ford about the

3132alleged threat.

313439. When the meeting concluded, both Ford and Dr. Henderson

3144had the impression that Barkley was going to hire or appoint Ford

3156to a position with the police department, and the details would

3167be worked out at a meeting the following Monday at 8:00 a.m.

317940. After the May 29, 1998, meeting, Barkley decided not to

3190hire or appoint Ford. On Monday, May 31, 1998, Barkley called

3201Dr. Henderson and indicated that he was not going to hire Ford.

3213Dr. Henderson then told Barkley that he should call Respondent

3223and tell her. Barkley complied with Dr. Henderson's request and

3233called Respondent. When Barkley reached Respondent, he told her

3242that he could not do "it" and hung up the phone.

325341. Four days afte r Barkley was appointed as permanent

3263police chief of the Police department, City Manager Cowen was

3273replaced by Anthony Powell.

327742. As city manager, Powell exercised his independent

3285judgment to hire and retain those employees he felt best

3295reflected his management style and who could best serve the

3305interests of the City of Quincy.

331143. On June 9, 1998, a week after Powell was appointed city

3323manager, he decided to replace Barkley. Two days later, Barkley

3333was relieved from his responsibilities as police chief. The

3342reason City Manager Powell decided to remove Barkley as police

3352chief was that he disagreed with Barkley's management style and

3362doubted his credibility.

336544. Prior to Barkley's separation from the police

3373department, Respondent urged City Manager Powell to continue

3381Barkley's employment with the city. However, notwithstanding

3388Respondent's support of Barkley, Powell made it clear to

3397Respondent that Barkley could not continue as police chief.

340645. On June 11, 1998, City Manager Powell appointed Rodney

3416Moore to replace Barkley as Quincy's police chief.

342446. Ford applied for a position with the police department

3434on June 19, 1998, three weeks after the May 29, 1998, meeting in

3447Dr. Henderson's office.

345047. More than a month after it was filed, Ford's

3460application had not been processed.

346548. On July 20, 1998, at approximately 1:40 p.m.,

3474Commissioner Russ telephoned Chief Moore's office. Commissioner

3481Russ was agitated because his car had been vandalized on July 16,

34931998, while it was parked in front of City Hall. The police

3505officer called to the scene promised to have a written report

3516prepared by the next day but had not done so. Commissioner Russ

3528complained to Chief Moore that he had not received the incident

3539report regarding the vandalism of his car. He also told Chief

3550Moore that he (Moore) "had problems" because Ford should have

3560been hired. After voicing his complaints, as if to explain his

3571mood, Commissioner Russ told Chief Moore that he (Russ) had lost

3582his job that day and had enough problems. Commissioner Russ

3592ended the conversation by telling Chief Moore that he needed to

"3603straighten it up" and "work it out."

361049. Later, on the afternoon of July 20, 1998, Commissioner

3620Russ went to Respondent's office in Gretna as a volunteer to work

3632on her office computers. While at Respondent's office,

3640Commissioner Russ telephoned Chief Moore. Commissioner Russ

3647still sounded very upset and during this conversation, again,

3656complained about the police department's failure to timely

3664process Ford's application for a reserved officer position with

3673the police department. Commissioner Russ also told Chief Moore

3682that he had problems because Ford had not been hired.

369250. Respondent was not in her office when Commissioner

3701Russ was speaking on the telephone, and was unaware of the

3712identity of the person to whom Russ was speaking.

372151. During his telephone conversation with Chief Moore,

3729Russ was speaking very loudly and could be heard overheard by

3740those in the area outside Respondent's office. Because

3748Commissioner Russ' conduct was disruptive, Respondent went into

3756her office and told Russ to leave.

376352. After Respondent told Russ to leave her office, he told

3774Chief Moore to explain it to "her." Russ then either handed the

3786telephone receiver to Respondent or put it on the desk. Once

3797Respondent had the telephone receiver, Chief Moore continued

3805giving the explanation regarding the reasons for the delay in

3815processing Ford's application. The reason Chief Moore continued

3823the explanation he was giving Russ was that he assumed Respondent

3834was interested in the processing of her son's application.

384353. After listening to Chief Moore's explanation,

3850Respondent expressed a concern about the manner in which the

3860application was being processed. Respondent's specific concern

3867appeared to be the length of time it took to process an

3879application. However, Respondent made no attempt during this

3887telephone conversation or any other time to influence Chief

3896Moore's decision to hire her son. In fact, the credible

3906testimony of Chief Moore was that Respondent "never mentioned

3915anything about hiring him" and that Russ was the only person

3926pushing Ford's employment.

392954. At no time during the May 29, 1998, meeting or anytime

3941thereafter did Respondent participate in any discussion about

3949Ford's working with the police department. In fact, although

3958Ford had worked extensively in law enforcement, Respondent was

3967never supportive of her son's desire to work in this area.

397855. At no time did Respondent threaten, coerce, or

3987intimidate Barkley or anyone else about hiring her son, Ford, to

3998work for the police department.

400356. Ford was never a paid employee of the police

4013department.

4014CONCLUSIONS OF LAW

401757. The Division of Administrative Hearings has

4024jurisdiction over the parties and the subject matter of this

4034proceeding. Section 120.57(1), Florida Statutes.

403958. Section 112.322, Florida Statutes, and Rule 34-5.0015,

4047Florida Administrative Code, authorize the Commission on Ethics

4055to conduct investigations and to make public reports on

4064complaints concerning violations of Part III, Chapter 112,

4072Florida Statutes (Code of Ethics for Public Officers and

4081Employees).

408259. The burden of proof, absent a statutory directive to

4092the contrary, is on the party asserting the affirmative of the

4103issue in the proceedings. Department of Transportation v. J.W.C.

4112Company, Inc. , 396 So. 2d 778 (Fla. 1st DCA 1981); Balino v.

4124Department of Health Rehabilitative Services , 348 So. 2d 349

4133(Fla. 1st DCA 1977). In this proceeding, it is the Commission,

4144through its Advocate, that is asserting the affirmative that

4153Respondent violated Sections 112.3135(2)(a) and 112.313(6),

4159Florida Statutes. Therefore, the burden of establishing by clear

4168and convincing evidence the elements of Respondent's violations

4176is on the Commission. Lantham v. Florida Commission on Ethics ,

4186694 So. 2d 83 (Fla. 1996), citing Department of Banking and

4197Finance v. Osborne Stern , 670 So. 2d 932 (Fla. 1996); Ferris v.

4209Turlington , 510 So. 2d 292 (Fla. 1987).

421660. As noted by the Supreme Court of Florida:

4225Clear and convincing evidence requires that

4231the evidence must be found to be credible;

4239the facts to which the witnesses testify must

4247be distinctly remembered; the testimony must

4253be precise and explicit and the witnesses

4260must be lacking in confusion as to the facts

4269in issue. The evidence must be of such

4277weight that it produces in the mind of the

4286trier of fact a firm belief or conviction,

4294without hesitancy, as to the truth of the

4302allegations sought to be established.

4307In Re Davey , 645 So. 2d 398, 404 (Fla. 1994), quoting Slomowitz

4319v. Walker , 429 So. 2d 797, 800 (Fla. 4th DCA 1983).

433061. It has been alleged that Respondent advocated the

4339appointment of her son for a position with the police department

4350in violation of Section 112.3135(2)(a), Florida Statutes. That

4358section provides in pertinent part as follows:

4365A public official may not appoint, employ,

4372promote, or advance, or advocate for

4378appointment, employment, promotion, or

4382advancement, in or to a position in the

4390agency in which the official is serving or

4398over which the official exercises

4403jurisdiction or control any individual who is

4410a relative of the public official.

441662. The term "public official" is defined by Section

4425112.3135(1)(a)6.(c), Florida Statutes, as:

4429[A]n officer, including a member of the

4436Legislature, the Governor, and a member of

4443the Cabinet, or an employee of an agency in

4452whom is vested the authority by law, rule, or

4461regulation, or to whom the authority has been

4469delegated, to appoint, employ, promote, or

4475advance individuals or to recommend

4480individuals for appointment, employment,

4484promotion, or advancement in connection with

4490employment in an agency, including the

4496authority as a member of a collegial body to

4505vote on the appointment, employment,

4510promotion, or advancement of individuals.

451563. A "city" is included in the defini tion of the term

"4527agency" set forth in Section 112.3135(1)(a)5., Florida Statutes.

453564. A "son" is included in the definition of "relative" set

4546forth in Section 112.3135(1)(d), Florida Statutes.

455265. In order to establish a violation of Section

4561112.3135(2)(a), Florida Statutes, the following elements must be

4569proved:

45701. The Respondent must have been a public

4578official or employee in whom was vested

4585the authority by law, rule or regulation,

4592or to whom the authority had been

4599delegated, to appoint, employ, promote or

4605advance individuals or to recommend

4610individuals for appointment, employment,

4614promotion or advancement in connection

4619with employment in an agency, including

4625the authority as a member of a collegial

4633body to vote on the appointment,

4639promotion or advancement of individuals

4644employed by the Respondent's agency.

46492. The Respondent must have appointed,

4655employed, promoted or advanced, or

4660advocated for appointment, employment,

4664promotion or advancement, a relative of

4670the Respondent.

46723. Such appointment, employm ent, promotion

4678or advancement, or advocacy for the

4684relative, must have been for a position

4691in the agency in which the Respondent was

4699serving or over which the Respondent

4705exercised jurisdiction or control.

470966. With regard to the first element under Sectio n

4719112.3135(2)(a), Florida Statutes, it has been established that

4727Respondent, as a Commissioner for the City of Quincy, is a public

4739official within the meaning of this provision. Moreover, the

4748parties have stipulated that Respondent is subject to the

4757requirements of Part III, Chapter 112, Florida Statutes, the Code

4767of Ethics for Public Officers and Employees.

477467. As to the second element, Advocate has failed to

4784establish by clear and convincing evidence that Respondent

4792advocated the appointment of her son for a position in the police

4804department.

480568. The evidence at hearing established that Respondent did

4814not participate in any discussions with Barkley, Moore, or anyone

4824else about her son's being hired or appointed to a position with

4836the police department. It is undisputed that Respondent met with

4846Barkley and Dr. Henderson on May 29, 1998. However, the evidence

4857clearly established that the issue Respondent discussed with

4865Barkley involved the alleged threat made by Ford and not

4875Barkley's hiring or appointing Ford to work in the police

4885department.

488669. With regard to the May 29, 1998, meeting, the clear and

4898convincing evidence was that the appointment or hiring of Ford

4908was discussed only by Dr. Henderson, Barkley, and Ford and that

4919when that discussion occurred, Respondent was otherwise occupied

4927and did not participate in the discussion. Furthermore, contrary

4936to the assertion that Respondent advocated the appointment of her

4946son for a position with the police department, the clear and

4957convincing evidence established that the suggestion that Ford be

4966appointed to a position with the police department originated

4975with Barkley. The undisputed evidence established that on

4983May 20, 1998, Barkley, unknown to Respondent, met with Ford and

4994offered Ford the second-in-command position with the police

5002department after he learned that Ford wanted to be police chief.

501370. It is further alleged that in a telephone conversation

5023with Chief Moore, Respondent advocated the appointment of her son

5033for a position with the police department. The evidence at

5043hearing fails to support this allegation.

504971. The clear and convincing evidence established that

5057Respondent never approached Chief Moore about hiring Ford.

5065Rather, the evidence showed that Russ telephoned Moore to

5074criticize the delay in processing Ford's employment application

5082and during the course of that conversation became upset or angry

5093by Chief Moore's explanation and either handed the phone to

5103Respondent or put it on a desk. The evidence also established

5114that after Respondent was handed the phone or picked it up from

5126the desk, Chief Moore continued the explanation that he had been

5137giving Russ regarding Ford's employment application. Moreover,

5144the clear and convincing testimony was that after listening to

5154Chief Moore's comments, Respondent was concerned about the

5162application processing procedures and was not advocating a

5170position for her son. The credible testimony of Chief Moore was

5181that Respondent "never mentioned anything about hiring [Ford]."

518972. In light of t he foregoing conclusions, that Respondent

5199never advocated the appointment or employment of her son for a

5210position with the police department, it is unnecessary to

5219consider the third element noted in paragraph 65 above and

5229required to prove a violation of Section 112.3135(2)(a), Florida

5238Statutes.

523973. It is also alleged that Respondent violated Section

5248112.313(6), Florida Statutes, by using her position as a city

5258commissioner to secure a special benefit, a job, for her son.

5269That section provides in pertinent part:

5275MISUSE OF PUBLIC POSITION. - No public

5282officer, employee of an agency, or local

5289government attorney shall corruptly use or

5295attempt to use his or her official position

5303or any property or resource which may be

5311within his or her trust, or perform his or

5320her official duties, to secure a special

5327privilege, benefit, or exemption for himself,

5333herself, or others.

533674. The term "corruptly" is defined by Section 112.312(9),

5345Florida Statutes, as follows:

"5349Corruptly" means done with a wrongful intent

5356and for the purpose of obtaining, or

5363compensating or receiving compensation for,

5368any benefit resulting from some act or

5375omission of a public servant which is

5382inconsistent with the proper performance of

5388his or her public duties.

539375. In order to establish a violati on of Section

5403112.313(6), Florida Statutes, the following elements be proved:

54111. The Respondent must have been a public

5419officer or employee.

54222. The Respondent must have:

5427a) used or attempted to use her

5434official position or any property or

5440resources within her trust, or

5445b) performed her official duties.

54503. Respondent's actions must have been taken

5457to secure a special privilege, benefit or

5464exemption for herself or others.

54694. Respondent must have acted corruptly,

5475that is, with wrongful intent and for the

5483purpose of benefiting herself or another

5489person from some act or omission which

5496was inconsistent with the proper

5501performance of her public duties.

550676. The first element (that Respondent is a "public

5515officer") required to show a violation of Section 112.313(6),

5525Florida Statutes, has been met. The term "public officer," as

5535defined in Section 112.313(1), Florida Statutes, "includes any

5543person elected or appointed to hold office in any agency,

5553including any person serving on an advisory body." Therefore,

5562Respondent is a public officer by virtue of the fact that she was

5575elected as a city commissioner for the City of Quincy, Florida,

5586in March 1998 and currently serves in that capacity.

559577. Based on the foregoing conclusions, the second and

5604third elements necessary to prove a violation of Section

5613112.313(6), Florida Statutes, have not been established.

5620Accordingly, it is unnecessary to address the fourth element

5629noted in paragraph 75 above.

563478. The evidence adduced at hearing failed to establish

5643that Respondent, as a city commissioner, advocated the

5651appointment of the her son for a position with the police

5662department or used her official position to attempt to obtain a

5673job for her son with the police department.

5681RECOMMENDATION

5682Based upon the foreg oing Findings of Fact and Conclusions of

5693Law, it is recommended that a final order and public report be

5705entered finding that Respondent Carolyn Ford, did not violate

5714Sections 112.3135(2)(a) and 112.313(6), Florida Statutes.

5720DONE AND ENTERED this 17th day of April, 2000, in

5730Tallahassee, Leon County, Florida.

5734CAROLYN S. HOLIFIELD

5737Administrative Law Judge

5740Division of Administrative Hearings

5744The DeSoto Building

57471230 Apalachee Parkway

5750Tallahassee, Florida 32399-3060

5753(850) 488-9675 SUNCO M 278-9675

5758Fax Filing (850) 921-6847

5762www.doah.state.fl.us

5763Filed with the Clerk of the

5769Division of Administrative Hearings

5773this 17th day of April, 2000.

5779COPIES FURNISHED:

5781James H. Peterson, III, Esquire

5786Office of the Attorney General

5791The Capitol, Plaza Level 01

5796Tallahassee, Florida 32399-1050

5799Jack L. McLean, Jr., Esquire

5804McGuire, Woods, Battle & Booth, LLP

5810285 Peachtree Center Avenue, Northeast

5815Marquis Two Tower, Suite 2200

5820Atlanta, Georgia 30303-1234

5823Sheri L. Gerety, Complaint Coordinator and Clerk

5830Florida Commission on Ethics

58342822 Remington Green Circle

5838Post Office Drawer 15709

5842Tallahassee, Florida 32317-5709

5845Phil Claypool, General Counsel

5849Florida Commission on Ethics

58532822 Remington Green Circle

5857Post Office Drawer 15709

5861Tallahassee, Florida 32317-5709

5864NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

5870All parties have the right to submit written exceptions within 15

5881days from the date of this Recommended Order. Any exceptions to

5892this Recommended Order should be filed with the agency that will

5903issue the final order in this case.

Select the PDF icon to view the document.
PDF
Date
Proceedings
PDF:
Date: 06/18/2004
Proceedings: Final Order and Public Report filed.
PDF:
Date: 05/23/2003
Proceedings: Advocate`s Notice of Request to Take Judicial Notice (filed via facsimile).
PDF:
Date: 06/06/2000
Proceedings: Agency Final Order
PDF:
Date: 04/17/2000
Proceedings: Recommended Order
PDF:
Date: 04/17/2000
Proceedings: Recommended Order sent out. CASE CLOSED. Hearing held 12/08-09/99.
Date: 02/16/2000
Proceedings: Order Extending Time for Filing Recommended Order sent out. (time for filing proposed recommended orders is extended to 2/14/00)
Date: 02/14/2000
Proceedings: Advocate`s Proposed Recommended Order; Notice of Filing filed.
Date: 02/14/2000
Proceedings: Respondent`s Proposed Recommended Order and Memorandum of Law in Support Thereof (filed via facsimile).
Date: 01/26/2000
Proceedings: (J. Peterson) Motion for Extension of Time to File Proposed Recommended Orders (filed via facsimile).
Date: 12/28/1999
Proceedings: (Volumes 1-4 of 4) Notice of Filing; DOAH Court Reporter Final Hearing Transcript filed.
Date: 12/14/1999
Proceedings: Joint Notice to Administrative Law Judge Re: Robert Barkley`s Diary (filed via facsimile).
Date: 12/09/1999
Proceedings: Order sent out. (corrected motion for conitnuance denied; motion in Limine granted)
Date: 12/09/1999
Proceedings: Notice of Filing; Excerpt of Proceedings Excerpt of Testimony of Harld Henderson filed.
Date: 12/08/1999
Proceedings: CASE STATUS: Hearing Held.
Date: 12/07/1999
Proceedings: Advocate`s Response in Opposition to Respondent`s Motion for Final Summary Order (filed via facsimile).
Date: 12/06/1999
Proceedings: (J. McLean) Corrected Motion for Continuance (filed via facsimile).
Date: 12/06/1999
Proceedings: (J. McLean) Prehearing Stipulation Supplemental (filed via facsimile).
Date: 12/06/1999
Proceedings: Motion for Continuance (Respondent) (filed via facsimile).
Date: 12/03/1999
Proceedings: Advocate`s Request to Take Judicial Notice filed.
Date: 12/03/1999
Proceedings: (J. McLean) Prehearing Stipulation Supplemental; (3) Certificate of Service; Motion in Limine (filed via facsimile).
Date: 12/03/1999
Proceedings: Notice of Potential Continuance (Respondent) (filed via facsimile).
Date: 12/02/1999
Proceedings: Advocate`s Notice of Request to Take Judicial Notice; Advocate`s Notice of Supplemental Exhibit List (filed via facsimile).
Date: 12/01/1999
Proceedings: Respondent`s Motion in Limine; Respondent`s Memorandum in Support of Her Motion in Limine; (2) Certificate of Service (filed via facsimile).
Date: 11/30/1999
Proceedings: Joint Prehearing Stipulation (filed via facsimile).
Date: 11/29/1999
Proceedings: Respondent`s Motion for Final Summary Order; Respondent`s Memorandum of Law in Support of Her Motion for Final Summary Order filed.
Date: 11/23/1999
Proceedings: Respondent`s Notice of Intent to Issue Subpoenas Upon Third Parties (filed via facsimile).
Date: 11/16/1999
Proceedings: Respondent`s Response to Advocate`s First Request for Admissions; Respondent`s Response to Advocate`s First Interrogatories filed.
Date: 11/15/1999
Proceedings: (J. McLean) Certificate of Service; Notice to Take Deposition; (3) Amended Notice to Take Deposition filed.
Date: 11/10/1999
Proceedings: (J. McLean) (3) Notice of Take Deposition; (3) Subpoena for Deposition filed.
Date: 11/08/1999
Proceedings: (J. McLean) Notice of Taking Deposition; Subpoena for Deposition filed.
Date: 09/17/1999
Proceedings: Order Granting Continuance and Re-scheduling Hearing sent out. (hearing set for December 8, 1999; 9:30 a.m.; Tallahassee, Florida)
Date: 09/10/1999
Proceedings: Joint Motion to Reset Date for Hearing; Certificate of Service (filed via facsimile).
Date: 08/26/1999
Proceedings: Advocate`s First Interrogatories to Respondent; Advocate`s First Request for Admissions filed.
Date: 07/12/1999
Proceedings: Notice of Hearing sent out. (hearing set for October 1, 1999; 9:30 a.m.; Tallahassee, Florida)
Date: 07/12/1999
Proceedings: Order of Pre-hearing Instructions sent out.
Date: 06/11/1999
Proceedings: Joint Response to Initial Order (filed via facsimile).
Date: 06/01/1999
Proceedings: Initial Order issued.
Date: 05/27/1999
Proceedings: Advocate`s Recommendation; Order Finding Probable Cause filed.
Date: 05/27/1999
Proceedings: Agency Referral Letter; Complaint; Determination of Investigative Jurisdiction and Order to Investigate; Report of Investigation filed.

Case Information

Judge:
CAROLYN S. HOLIFIELD
Date Filed:
05/27/1999
Date Assignment:
06/01/1999
Last Docket Entry:
06/18/2004
Location:
Tallahassee, Florida
District:
Northern
Agency:
ADOPTED IN TOTO
Suffix:
EC
 

Related Florida Statute(s) (6):

Related Florida Rule(s) (1):