STATE OF FLORIDA
COMMISSION ON ETHICS
In re WILLIAM G. SMITH, )
Respondent. ) Complaint Nos. 89-6 and
) 89-13 (Consolidated)
RECOMMENDED PUBLIC REPORT OF HEARING OFFICER
This matter was initiated by the filing of two complaints by the Complainants, Rodney Smith (Complaint No. 89-6) and Glen Downum (Complaint No. 89-13). Following a preliminary investigation, the Commission on Ethics found probable cause and ordered a public hearing on the following two issues: (1) whether the Respondent, as the Sheriff of Calhoun County, violated Section 112.313(6), Florida Statutes, by using County jail inmates for his personal benefit; and (2) whether the Respondent violated Section 112.313(6), Florida Statutes, by using deputies and County vehicles for his personal benefit.
A public hearing was held on Thursday, September 13, 1990, in Blountstown, Florida, before the undersigned member of the Commission on Ethics, who served as Hearing Officer for the Commission. Craig B. Willis, Assistant Attorney General, appeared as Advocate for the Commission; Mark Herron, Esq., appeared on behalf of the Respondent.
At the public hearing the Advocate called the following witnesses: James Emory Godwin, David Tatum, Roman Wood, Aaron Everett, William Addis Johnson, James R. Stone, Alvin Roberts, Logan Barbee, Glenn Downum, Tony Hall, Keith Daniels, and Franklin Faircloth; the depositions of the Respondent and of Phillip ConradBontrager were admitted into evidence. The Respondent testified and called the following witnesses: Henry Silcox and Carl Lee. The parties filed a prehearing stipulation, and an exhibit offered by the Advocate was received in evidence.
Both parties have submitted proposed findings of fact and conclusions of law which have been considered by the Hearing Officer. Specific rulings on the proposed findings of fact are set forth in the appendix to this order. References to the transcript of the hearing are denoted by the letter "T", followed by the page number; references to the prehearing stipulation are made by the abbreviation "Stip.", followed by the page number; references to the depositions of the Respondent and Bontrager are made by the names "Smith" and "Bontrager," respectively, followed by the page number; and references to the Advocate's exhibit are made as "AE", followed by the exhibit number and page number, if applicable.
From the evidence presented at the hearing, the undersigned Hearing Officer finds as follows:
1. The Respondent, William G. Smith, is the Sheriff of Calhoun County and has been in that position at all times material to this proceeding. Stip., 2.
USE OF INMATE FOR PERSONAL BENEFIT (JAIL TRUSTEE SANDING BEAMS AND REPAIRING TRACTOR FENDER)
2. The Respondent acknowledges that a County jail inmate, Addis Johnson, helped him sand some wooden beams that were used in the construction of his personal residence. Stip., 2; T 87-88; Smith, 4, 15. This activity took place at the jail, and Mr. Johnson was a trustee at the time. Stip., 3.
3. While building a personal residence, the Respondent acquired 32 four-by-six wooden beams. T 85; Smith, 4. He wanted the beams sanded in such a manner as to leave the saw marks on them. T 86-87; Smith, 8-9.
4. In November or December of 1988, or January of 1989, in order to work on the beams during the afternoon and to still be available at the Sheriff's office, the Respondent transported the beams to the jail. T 88; Smith, 6-7, 9-10. The Respondent did not bring the beams to the jail in order to have them sanded by inmates. The Respondent used a trailer that was in the possession and control of the Sheriff's Department to take the beams to the jail. Stip., 3; Smith, 5.
5. While the beams were at the jail, the Respondent sanded between six and nine of them, using an electric sander. T 23, 28, 88; Smith, 4, 9. Addis Johnson, who was an inmate at the jail in a trustee status, sanded three or four beams. Stip., 2; T 43, 88; Smith, 15. The remainder were finished at the Respondent's home by the Respondent and a day laborer he hired. Smith, 15. It took roughly from 30 to 60 minutes to sand each beam. Smith, 16. The beams were at the jail for approximately one week. T 43, 87; Smith, 7.
6. Johnson testified that he helped the Respondent turn over several of the beams, but that he did not sand any of them; he further stated that the Respondent did not ask him to work on the beams. T 37-39. Although other witnesses saw Johnson around the beams, sanding them, or helping the Respondent turn them over (T 23, 28-29, 43), none of these witnesses' testimony shed any light on the question of whether the Respondent ordered or requested Johnson to work on the beams. There was no evidence that Johnson was coerced or threatened into working or that he was rewarded in any way for his having done so.
7. The Respondent testified that he did not ask Johnson to assist in sanding the beams. T 88; Smith, 13. Rather, the Respondent said, the inmates who were permitted to work outside of the jail as trustees would return to the jail after their work was completed for the day. Smith, 14-15. Some would sit around in back of the jail, and others would go inside. Smith, 15. Johnson simply began sanding on his own initiative while the Respondent was not there. T 88; Smith, 15. In the Respondent's words, "I came back out, and he was sanding. Well, I didn't tell him to sand; I didn't tell him to quit. It's just that simple." Smith, 15. Given the testimony about how trustee inmates functioned at the jail, Johnson's skills as a "handyman," and the relatively informal maintenance practices in this county, I find that this testimony is credible.
8. In order to repaint one of his tractors, the Respondent removed the two fenders from the tractor. T 93; Smith, 17. When he learned that an historic railroad engine was being sandblasted and painted, he asked the persons doing that work to sandblast and prime the two fenders. T 93-94, 109; Smith, 17. After the work on the fenders was done, the Respondent asked his son to pick up the fenders and drop them off at the jail for safekeeping over the weekend. T 94; Smith, 18. His son left them in the jail compound area. Smith, 18.
9. One of the fenders had rusted through where a toolbox had been mounted to it. Smith, 18-19. While the fenders were at the jail, Addis Johnson repaired the fender by welding in a piece of scrap metal, approximately one foot long and four inches wide. T 24, 38, 95; Smith, 19; Stip., 3. Johnson used welding equipment that was at the jail and being used for repairs there. Smith, 19-20.
10. The work was done by the time the Respondent came in on Monday. T 24; Smith, 20. The Respondent did not ask Johnson to do the welding work and did not know that Johnson was going to do the work until after it was finished. T 39, 94-96. There was no evidence that the Respondent had asked or coerced Johnson into repairing the fender or that Johnson was rewarded in any way for this work.
11. Addis Johnson was a trustee inmate, that is, one who was permitted to leave the jail during the day and work on County projects. Smith, 25. The Sheriff has the authority to determine whether an inmate would be a trustee or not. T 101-102.
12. The Sheriff's Department has no policy, written or unwritten, permitting jail inmates to work for private individuals. T 26; Smith, 25. Private citizens would not be permitted to bring personal projects by the jail for inmates to work on them. T 104. The Respondent acknowledged that it would be wrong to take jail inmates to his house to work. T 101.
USE OF EMPLOYEES AND VEHICLES TO TRANSPORT DAY LABORER
13. The Respondent employed Aaron Everett as a day laborer on his farm over a period of time from October, 1988, to February, 1989. Stip., 3. Records of cancelled checks indicate that Everett was paid $1,350 over this period of time. Stip., 3; AE 1. Everett did various work for the Respondent, including mowing with a tractor, preparing some lumber to go in the Respondent's house, and tearing down some sheds. T 96. This also included sanding a few of the 32 beams for the Respondent. T 35, 96-97.
14. During this period of time, Everett did not own a car, so he would catch a ride from his house to the Sheriff's office, and the Respondent would give him transportation from there. T 33. Sometimes the Respondent would take him from the Sheriff's office to the farm, and sometimes Deputy Sheriffs or another Department employee would give him a ride to the farm. T 33-34; Smith, 27. It is about four miles from the Sheriff's office to the Respondent's farm. T 103.
15. Deputy Godwin, while on duty, took Everett to the farm from three to seven times. T 17-18. Sometimes he would pick up Everett at the jail, take him to the farm, and then return to the jail; other times he would take Everett with him and drop him off at the farm on his way home from working the midnight shift. T 17. He was instructed to do this by the Department's dispatcher, who would call and tell him to stop by the office for this. T 17.
16. Deputy Wood gave Everett a ride from the Respondent's farm to Everett's home, on the instructions of the Respondent. T 29. Deputy Hall gave Everett a ride from his home to the jail, on the instructions of the dispatcher, who told Hall to go by Everett's and pick him up and bring him to the jail. T 68-69. Deputy Daniels took Everett to the farm on two occasions while on duty, once from the jail and once from the area of Everett's residence, on the instructions of the Respondent, either in person or by telephone. T 71-72. Franklin Faircloth, a former jailer with the Sheriff's Department, while on duty gave Everett a ride from the Sheriff's office to the farm at the request of the Respondent at least one time. T 75-76, 81-82.
17. The Respondent acknowledged that Deputies of his Department transported Everett to his farm and from his farm house on a number of occasions, using Department vehicles. Stip., 3. The Respondent also acknowledged asking Deputies and other Sheriff's Office personnel to take Everett to his farm on a number of occasions. T 97; Smith, 27-28.
18. The Respondent testified that he would ask for assistance in getting Everett to the farm at times when he was at the farm and was too busy with his personal business to get away to pick up Everett himself. T 97; Smith, 28-29. None of the Department personnel who provided transportation to Everett testified that they were taken away from their official responsibilities to do this. T 19-20, 31, 69, 74.
19. The Sheriff's Department has no policy, written or unwritten, prohibiting Department personnel from giving rides to private individuals, permitting them to provide such transportation, or stating under what circumstances that it is permissible to give rides to private citizens. T 19, 30, 47, 74, 99. As the Sheriff, the Respondent is responsible for promulgating all rules applicable to Department personnel. T 99.
20. The Respondent and other Deputies, while on duty, had given rides to private individuals in other instances, on their own initiative. Examples included situations where the person's vehicle broke down (T 18, 30, 45, 72-73; Smith, 29-30), the person needed a ride to or from work (T 18, 30, 45), the person had a problem getting home (T 30), or the person needed to go to or from a hospital (T 18, 30, 45; Smith, 29-30). None of the examples given by the witnesses involved giving private individuals rides to work or home on a regular basis.
21. The Respondent acknowledged that it would be improper and that a private citizen could not call the Sheriff's Department and get a ride for any purpose for the asking. T 104.
22. No evidence was presented that Sheriff's Department personnel felt that their job security was threatened by not responding to the Respondent's request that they transport Everett to his farm. No evidence was presented that Department personnel felt they were forced or coerced into responding to the Respondent's request. There was no evidence that any retaliation or promotion resulted from Department personnel transporting or not transporting Everett to the farm.
Section 112.313(6), Florida Statutes, provides:
MISUSE OF PUBLIC POSITION.--No public officer or employee of an agency shall corruptly use or attempt to use his official position or any property or resource which may be within his trust, or perform his official duties, to secure a special privilege, benefit, or exemption for himself or others. This section shall not be construed to conflict with s. 104.31.
For purposes of this statute, the term "corruptly" is defined by Section 112.312(7), Florida Statutes, as follows:
'Corruptly' 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 public duties.
Based on the foregoing findings of fact, the undersigned Hearing Officer recommends that the Commission on Ethics make the following conclusions of law:
1. The Respondent, William G. Smith, in his capacity as Sheriff of Calhoun County, is a public officer subject to the provisions of the Code of Ethics for Public Officers and Employees contained in Part III of Chapter 112, Florida Statutes, and is subject to the jurisdiction of the State of Florida Commission on Ethics.
2. With respect to an alleged violation of Section 112.313(6), Florida Statutes, the Advocate must establish by a preponderance of the evidence that:
a. The Respondent was either a public officer or a public employee;
b. The Respondent used or attempted to use his official position or property or resources within his trust, or performed his official duties.
c. The Respondent's actions were done with an intent to secure a special privilege, benefit, or exemption for himself or others; and
d. The Respondent's actions were done "corruptly," that is,
(1) done with a wrongful intent, and
(2) done for the purpose of benefiting from some act or omission which was inconsistent with the proper performance of public duties.
JAIL TRUSTEE SANDING BEAMS AND REPAIRING TRACTOR FENDER
3. With respect to the welding work on the tractor fender, it has been found that the Respondent did not ask Johnson to do the welding work and did not know that Johnson was going to do the work until after it was finished. Under these circumstances, it cannot be concluded that the Respondent used or attempted to use his official position or any resources within his trust in order to benefit himself. Accordingly, the Respondent did not violate Section 112.313(6), Florida Statutes, in connection with the welding done by Johnson on one of his tractor fenders.
4. With respect to the sanding work done by Johnson, the Advocate argues that the Respondent violated Section 112.313(6) by transporting the beams to the jail grounds and then allowing Johnson to assist him in sanding them. By knowingly accepting personal favors from Johnson, it is argued, the Respondent intentionally received a personal benefit that was inconsistent with the proper performance of his public duties, a benefit that would not be afforded to other members of the public.
5. The statute, however, prohibits only the intentional use of public position to benefit oneself. If it were shown that the Respondent's intent from the outset was to have the beams sanded by inmates, the elements of proof necessary to sustain a violation would have been met. However, on the evidence presented it has been found that the Respondent did not take the beams to the jail with the intent of using inmate labor to sand them. Had the evidence indicated that all or nearly all of the beams were sanded at the jail and that Johnson or other inmates had done a greater proportion of the work, the finding might have been otherwise.
6. It was not shown that it was improper for the Respondent to have taken the beams to the jail area to work on them. From the evidence presented, it appears that he did a substantial amount of work, himself, and that many of the beams remained unsanded when they left the jail area. Although the Respondent did receive a personal benefit from Johnson's work, it has not been demonstrated that he used or attempted to use his official position to secure this benefit.
7. Accordingly, the Respondent did not violate Section 112.313(6), Florida Statutes, with respect to the sanding work done by Johnson.
USE OF EMPLOYEES AND VEHICLES TO TRANSPORT DAY LABORER
8. The Respondent used his official position, as well as property and resources within his trust, when he directed personnel of the Sheriff's Department to provide transportation for Aaron Everett, while on duty and using Department vehicles. This was accomplished either by his communicating directly with his subordinates or by having the Department dispatcher contact Department personnel.
9. The Respondent's actions were intended to, and did, provide a special privilege or benefit for himself by getting Everett to the farm, where he was needed by the Respondent, and by saving the Respondent the time and related minor expenses of having to get Everett himself.
10. The Respondent argues that he did not act "corruptly," observing that Department personnel on their own initiative provided transportation to private citizens in a variety of circumstances while on duty and using Department vehicles. The critical distinctions here, however, are that none of the examples given in the testimony involved either repeated and regular transportation or the use of Department resources by a member of the Department for his personal benefit. While there may be a valid public purpose served when Deputies provide occasional rides to private citizens under emergency or unusual circumstances, it is clear that the Respondent's repeated use of his position served his own interest and no public purpose. The Respondent's conduct amounted to use of the Deputies and Department vehicles as his personal taxi service to provide transportation of labor to his farm.
11. The Respondent also argues that the Commission has observed (in CEO 81-44) that whether the agency has adopted any policies regarding the use of vehicles is an indicator of whether the official's actions were consistent with the proper performance of his public duties. However, no policies were in effect here, so whether the Respondent complied or did not comply with established policies cannot bear on a determination of whether his actions were inconsistent with the proper performance of his duties. Furthermore, where, as here, the Respondent is responsible for setting the policies of the agency, the fact that he did not adopt any relevant policies should not weigh in his favor.
12. Finally, the Respondent argues that there was no evidence that any of the Department personnel felt their job security was threatened by their response to the Respondent's requests, that they were forced or coerced to transport Everett, or that they received any reward or retaliation for transporting or not transporting him. These circumstances would have been relevant if any Department members had indicated that they volunteered to transport Everett, as the use of coercion or reward by the Respondent would have contradicted such testimony. Here, none of the Department employees testified that he volunteered to drive Everett; it is clear that the Respondent used his official position in making the requests and was aware that Everett would be transported by Department members while on duty and using Department resources.
13. Under the facts found above, the Respondent acted "corruptly," as defined by the statute. His intent, simply to secure a personal benefit for himself, was wrongful, and his actions, serving only a private purpose, were inconsistent with the proper performance of his public duties.
14. This would have been a more egregious violation if any of the Department personnel who provided transportation to Everett had been taken away from their official responsibilities, but the fact that there was no testimony that this had occurred does not indicate that the Respondent's actions were not violative of the statute.
15. Accordingly, the Respondent has violated Section 112.313(6), Florida Statutes, by directing personnel of the Sheriff's Department to provide transportation for Aaron Everett, while on duty and using Department vehicles.
Having concluded that the Respondent has violated the Code of Ethics for Public Officers and Employees, it is necessary to consider what penalty, if any, would be appropriate for the violation.
It is not possible to determine with any degree of precision what amount of restitution would be appropriate. The violation found does not evidence a total disregard of the responsibilities of office, so as to warrant removal from office; nor is it so serious as to warrant a substantial monetary penalty. However, it cannot be said that this is an insignificant use of the Respondent's official position in order to accomplish his private goal.
Therefore, it is recommended that the Commission on Ethics recommend that the Governor publicly censure and reprimand the Respondent and impose a civil penalty of $1,000.00 against him.
Based on the foregoing findings of fact and conclusions of law, the undersigned Hearing Officer recommends that the Commission on Ethics enter a final order and public report finding that the Respondent, William G. Smith, has violated Section 112.313(6), Florida Statutes, through his actions in using Deputies and County vehicles for his personal benefit, and that he did not violate Section 112.313(6), Florida Statutes, by using County jail inmates for his personal benefit, as alleged. Further, the Hearing Officer recommends that the Commission's order recommend that the Governor of the State of Florida publicly censure and reprimand the Respondent and impose a civil penalty upon him in the amount of $1,000.00.
ENTERED and respectfully submitted this ____ day of December, 1990.
Debra A. Zappi
Hearing Officer and Member
Commission on Ethics
Copies furnished to:
Mr. Mark Herron, Attorney for Respondent
Mr. Craig B. Willis, Commission Advocate
The following are rulings on the proposed findings of fact submitted by the Advocate:
4. Accepted, except that the record does not support a finding that Johnson worked on more than one fender.
The following are rulings on the proposed findings of fact submitted by the Respondent:
3. Accepted, except that the record indicates that the beams were at the jail for approximately one week.
5. Accepted, except that Deputy Stone's testimony is sufficient to establish that Johnson sanded some of the beams.
10-11. Accepted to the extent that Bontrager's testimony is not used to support any findings of fact.
14. Accepted, except that it is not found by a preponderance of the evidence that on most occasions the Respondent transported Everett.