99-002411EC
In Re: Carolyn Ford vs.
*
Status: Closed
Recommended Order on Monday, April 17, 2000.
Recommended Order on Monday, April 17, 2000.
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.
- Date
- Proceedings
- PDF:
- Date: 05/23/2003
- Proceedings: Advocate`s Notice of Request to Take Judicial Notice (filed via facsimile).
- 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