STATE OF FLORIDA
DIVISION OF
ADMINISTRATIVE HEARINGS
In Re: CLIFF HAYDEN, JR., )
)
Respondent, ) CASE
NO. 91-1889EC
) COMPLAINT NO. 89-137
)
)
)
_______________________________)
RECOMMENDED ORDER
Pursuant to written notice a formal hearing was held in this case before
Larry J. Sartin, a duly designated Hearing Officer of the Division of
Administrative Hearings, on July 17, 1991, in Tampa, Florida.
APPEARANCES
The Advocate: Virlindia Doss
Assistant Attorney General
Department of Legal Affairs
The Capitol, Suite 1601
Tallahassee, Florida 32399-1050
For Respondent: David M. Carr,
Esquire
600 Madison Street
Tampa, Florida 33602
STATEMENT OF THE ISSUES
1. Whether the Respondent, Cliff
Hayden, Jr., violated Section 112.313(6), Florida Statutes, by having the
Hillsborough Area Regional Transit Authority pay for food and beverage expenses
incurred at the Tampa Club for meetings between the Respondent and members
and/or staff of the Hillsborough Area Regional Transit Authority.
2. Whether the Respondent
violated Section 112.313(6), Florida Statutes, by having the Hillsborough Area
Regional Transit Authority pay for golfing expenses for himself and a member of
the Hillsborough Area Regional Transit Authority.
PRELIMINARY STATEMENT
On or about October 9, 1989, a Complaint was filed with the Florida
Commission on Ethics (hereinafter referred to as the
"Commission"). The Complaint
contained allegations of misconduct by Cliff Hayden, Jr., the Respondent in
this case. Based upon a review of the
Complaint against the Respondent, the Commission issued a Determination of
Investigative Jurisdiction and Order to Investigate on April 3, 1990, ordering
the staff of the Commission to conduct a preliminary investigation into whether
the Respondent violated Section 112.313(6), Florida Statutes.
Following the Commission's investigation of the Respondent, a Report of
Investigation was issued on June 29, 1990.
Based upon the Complaint and the Report of Investigation, an Advocate
for the Commission issued an Advocate's Recommendation on July 18, 1990. The Advocate determined that there was no
probable cause to believe the Respondent violated Section 112.313(6), Florida
Statutes.
Despite the recommendation of the Advocate the Commission issued an
Order Finding Probable Cause on September 12, 1990. The Commission ordered that a public hearing be conducted.
By letter dated March 22, 1991, the Commission referred this matter to
the Division of Administrative Hearings and, in accordance with Rules 34-5.010
and 34-5.014, Florida Administrative Code, requested that the public hearing of
the Complaint against the Respondent be conducted by the Division of
Administrative Hearings.
On April 3, 1991, at the request of the parties, the case was placed in
abeyance until April 29, 1991, to allow sufficient time for the parties to
resolve some of the issues in this case.
On May 2, 1991, the case was set for formal hearing on July 17, 1991.
Pursuant to a Pre-hearing Order, the parties filed a Prehearing
Stipulation. The parties stipulated to
the issues, certain conclusions of law and several findings of fact. The stipulated facts have been accepted and
incorporated into this Recommended Order.
At the formal hearing the Advocate presented the testimony of Randolf
Kinsey and Lillian Stringer. The
Advocate also offered seven exhibits.
The exhibits were marked as "Advocate's" exhibits and were
accepted into evidence.
The Respondent testified and presented the testimony of John King. The Respondent also offered three
exhibits. The Respondent's exhibits
were marked as "Respondent's" exhibits and were accepted into
evidence.
At the conclusion of the formal hearing the parties indicated that no
transcript of the hearing would be filed.
The parties also indicated that they waived their right to file proposed
recommended orders.
FINDINGS OF FACT
A. General.
1. The Respondent, Cliff Hayden,
Jr., served as the Executive Director of the Hillsborough Area Regional Transit
Authority (hereinafter referred to as the "Authority"), from January,
1985, until January 19, 1990.
Stipulated Fact I. 3. The
Respondent was the Executive Director of the Authority at all times pertinent
to the Complaint at issue in this proceeding.
Stipulated Fact II. 4.
2. The Authority was established
pursuant to Part V of Chapter 163, Florida Statutes, which provide for the
establishment of regional transportation authorities. Stipulated Fact I. 2.
3. The Respondent was employed
by the Authority for 13 years prior to his employment as the Executive
Director.
4. John King served as a member
of the Board of Directors of the Authority (hereinafter referred to as the
"Board"), the governing body of the Authority, from 1982 through
1987. From 1987 through 1989, Mr. King
served as Chairman of the Board.
Stipulated Fact I. 16.
B. Expenditures at the Tampa
Club.
5. During the 1980's the
Authority began efforts to build a bus terminal on Marion Street in Tampa,
Florida. Initially, the Authority was
not sensitive to the concerns about the proposed terminal of business owners on
Marion Street. This insensitivity
caused the Authority to have difficulties with business owners in the area
which the Board believed needed to be rectified in order to effectively carry
out the responsibilities of the Authority.
6. During 1985 or 1986, as a
result of the difficulties with Marion Street business owners, the Chairman of
the Board, Charles Banks, suggested that a membership be established at a Tampa
social club that served meals.
Stipulated Fact I. 4.
7. As a result of Mr. Banks'
suggestion, the Respondent checked into the cost of joining several Tampa
social clubs that served meals, including one known as the Tampa Club. See Stipulated Fact I. 4.
8. Following discussion of the
Board at a Board meeting, the Board unanimously approved the opening of an
account for use by the Executive Director at the Tampa Club. Stipulation of Fact I. 4. and 5.
9. The Board authorized and
directed the Respondent to open an account at the Tampa Club. The Board also authorized and directed the
expenditure of Authority funds to reimburse the Respondent for the initial
membership fee of the Tampa Club, monthly charges for the membership in the
Tampa Club and the cost of meals incurred by the Respondent at the Tampa Club
for meals at which Authority business was discussed by the Respondent.
10. The Respondent was
authorized by the Board to use the Tampa Club for personal purposes if he
reimbursed the Authority for any such expenditures. Stipulated Fact I. 7. The
Respondent did not use the Tampa Club for any personal purposes.
11. The Respondent was a member
of the Tampa Club from February, 1986, until September 30, 1989, his entire
term as Executive Director. Stipulated
Fact I. 8. and 11.
12. Membership in the Tampa Club
was an employment benefit and part of the Respondent's economic compensation
from the Authority. Stipulated Fact I.
12. This finding of fact was stipulated
to by the parties, although evidence was presented by the Advocate suggesting a
different conclusion. That evidence is
rejected because of the agreement of the parties that Stipulated Fact I. 12. is
an established fact.
13. The Board also established
and approved a public-relations account during 1985 or 1986. The public-relations account was to be used
by the Executive Director and Authority Board members in furtherance of
Authority business. Funds were to be
paid out of this account for Authority business-related social activities,
including expenditures incurred by the Respondent at the Tampa Club. Stipulated Fact I. 14.
14. The public-relations
account, like the membership in the Tampa Club, initially was established
because of the difficulties with Marion Street business owners.
15. The Respondent was directed
by the Board to "hold hands" with the Marion Street business owners
and to use the Tampa Club and the public-relations account for that purpose.
16. Pursuant to the direction of
the Board, the Respondent paid the Tampa Club $1,500.00 as a membership
entrance fee. The Respondent was
reimbursed by the Authority for this expenditure. Stipulated Fact I. 6.
17. During the three years and
seven months that the Respondent was a member of the Tampa Club the Authority
paid a total of $5,854.08 for food and beverages charged by the Respondent at
the Tampa Club. Stipulated Fact I. 8.
and 9.
18. The Authority also paid
monthly membership charges of the Tampa Club during the time that the
Respondent was a member. Monthly
charges ranged from $40.00 to $65.00 per month. Stipulated Fact I. 10.
19. Amounts expended out of the
public-relations account, including amounts paid to the Tampa Club, were
included in the Authority's Board-approved budget. During the fiscal year ending September, 1988, the amount of the
public-relations account approved by the Board was $3,023.47. During the fiscal year ending September,
1989, the amount of the public-relations account approved by the Board was
$4,215.89. Stipulated Fact I. 15.
20. The Authority's budget was
prepared by the staff of the Authority.
The public-relations account was included as a separate item in the
budget. The particular expenditures to
be paid from the public-relations account, including amounts to be paid for the
Tampa Club, were not specifically identified in the budget submitted to the
Board for approval. Information
concerning the specific expenditures to be covered by the public-relations
account was, however, available to Board members.
21. The weight of the evidence
failed to prove that the manner in which the public-relations account was
presented to the Board for approval and review was inconsistent with generally
accepted accounting principles.
22. The Board reviewed and
approved the Authority's budget, including the public-relations account.
23. Although the Board did not
closely scrutinize the budget, the weight of the evidence failed to prove that
any attempt was made by the Respondent or any other person on his behalf to conceal
information about the public-relations account or his use of the Tampa Club
from the Board or the public. The
Board's failure to closely review the Authority's budget was a problem of the
Board and not the Respondent.
24. All expenditures made by the
Authority out of the public-relations account, including amounts paid to the
Tampa Club, were part of the records of the Authority and constituted public
records available to the public and the members of the Board.
25. Each month, approximately
three to four days before each Board meeting, Board members were provided with
a monthly summary of Authority expenditures.
This summary included the total amount expended from the public-relations
account, including amounts paid to the Tampa Club. The Board was not provided with a detailed break-down of each
expenditure from the public-relations account.
The weight of the evidence failed to prove, however, that the manner in
which the account was reported was inconsistent with generally accepted accounting
principles or that any attempt was made by the Respondent or any other person
on his behalf to conceal information about the public-relations account or his
use of the Tampa Club from the Board or the public.
26. All expenditures from the
public-relations account, including those for the Respondent's use of the Tampa
Club, were reviewed by the Respondent.
The expenditures were paid by the Authority's accounting staff after
approval by the Respondent.
27. Expenditures from the public-relations
account for lunch and breakfast charges at the Tampa Club made by the
Respondent were also authorized by the John King, Chairman of the Board. Stipulated Fact I. 17.
28. In 1989, John King was
alleged in Commission Complaint No. 89-58, to have misused his office by
charging to a credit card issued to him by the Authority meals taken with
business associates. This Complaint was
dismissed by the Commission with a finding of no probable cause. Stipulated Fact I. 18.
29. The Respondent's membership
in the Tampa Club was used solely for business lunches and breakfasts by the
Respondent. Stipulated Fact I. 13.
30. The Respondent only charged
food and beverages to the Tampa Club for payment by the Authority for food and
beverages consumed while discussing Authority business with members of the
Board and staff members, or guests of the Authority and staff members. Staff members only accompanied the
Respondent to the Tampa Club if a Board member or guest of the Authority was
present with the Respondent.
31. The Respondent took Board
members to the Tampa Club approximately 30% of the time and guests of the
Authority approximately 70%.
32. The weight of the evidence
failed to prove that the Respondent charged any amount to the Authority for use
of the Tampa Club that was not directed and authorized by the Board.
33. Although the Respondent
benefited from the food and beverages he consumed at the Tampa Club, the weight
of the evidence failed to prove that the Respondent used of the Tampa Club with
the intent of securing a special privilege, benefit or exemption for himself or
others or that his action was taken with a wrongful intent. The Respondent was carrying out the instructions
of the Board concerning how the Tampa Club was to be used.
C. Expenditures for Golf.
34. Randolf Kinsey is a member
of the Authority's Board. Mr. Kinsey
has been a member of the Board since approximately 1987.
35. Mr. Kinsey has, as a member
of the Board, been an advocate for the use of Black businesses by the Authority
and the hiring of Blacks by the Authority.
36. At times Mr. Kinsey has
advocated for Blacks to the exclusion of other minorities.
37. During all times relevant to
this proceeding, Mr. Kinsey and the Respondent did not get along. A great deal of friction has developed
between Mr. Kinsey and the Respondent.
38. Following a Board or
committee meeting in 1988, John King and
legal counsel for the Authority met with the Respondent concerning the problems
between Mr. Kinsey and the Respondent.
During this meeting Mr. King, who was then the Chairman of the Board,
told the Respondent to resolve the problem with Mr. Kinsey. It was suggested by Mr. King that the
Respondent "get Mr. Kinsey in a more relaxed environment" and
"mend the broken fences between them."
39. The weight of the evidence
failed to prove that Mr. King specifically suggested that the Respondent play
golf with Mr. Kinsey.
40. The Respondent contacted Mr.
Kinsey and suggested lunch. When Mr.
Kinsey declined lunch, the Respondent invited Mr. Kinsey to play golf. Mr. Kinsey accepted.
41. On November 10, 1988, the
Respondent and Mr. Kinsey played golf together at Northdale Golf Course in
Tampa. Stipulated Fact II. 1.
42. The greens fees charged to
play golf for the Respondent and Mr. Kinsey totalled $69.01. Stipulated Fact II. 2.
43. The Respondent charged the
greens fees for himself and Mr. Kinsey on a credit card issued to him by the
Authority. Stipulated Fact II. 4. The greens fees were ultimately paid by the
Authority as a charge to the public-relations account.
44. During the golf outing the
Respondent and Mr. Kinsey discussed Authority business, including the hiring of
a Black at the administrative level by the Authority.
45. The Respondent is an avid
golfer.
46. The Respondent played golf
approximately 10 to 15 times with other members of the Board. The Respondent did not, however, charge any
of the fees attributable to these golf outings to the Authority. This fact supports a finding that the golf
outing with Mr. Kinsey was not a social occasion.
47. Because of the animosity
between the Respondent and Mr. Kinsey, the only reason the Respondent played
golf with Mr. Kinsey was to attempt to resolve their differences. This fact further supports a finding that
the golf outing with Mr. Kinsey was not a social occasion.
48. The weight of the evidence
failed to prove that the Respondent attempted to conceal the fact that he had
charged the golf outing with Mr. Kinsey to the Authority. The charges were public records.
49. Although the Respondent
benefited from the free golf outing, the weight of the evidence failed to prove
that the Respondent played golf with Mr. Kinsey or charged the outing to the
Authority with the intent of securing a special privilege, benefit or exemption
for himself or others or that his action was taken with a wrongful intent. The Respondent reasonably believed that he
was carrying out the instructions of the Chairman of the Board to resolve a
problem between the Executive Director of the Authority and a Board member
which was adversely impacting on the Authority.
CONCLUSIONS OF LAW
50. The Division of
Administrative Hearings has jurisdiction of the parties to and the subject
matter of this proceeding. Section 120.57(1),
Florida Statutes (1989).
51. The Respondent has been
charged with violating Section 112.313(6), Florida Statutes, based upon the
payment for his use of the Tampa Club and the golf outing with Mr. Kinsey by
the Authority. Section 112.313(6),
Florida Statutes, provides:
(6) 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.
The parties have stipulated that a
violation of Section 112.313(6), Florida Statutes, requires proof of the
following elements:
a. The Respondent
must be either a public
officer or a public employee.
b. The Respondent
must have 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 in element b.
must have been done with an intent to secure
a special privilege, benefit or exemption for
himself or others.
d. The
Respondent's action and intent in
element b. and c. must have been done
corruptly, i.e., (1) done with a wrongful
intent and (2) done for the purpose of
benefiting from some act or admission which
is inconsistent with the proper performance
of public duties.
52. The burden of proof, absent
a statutory directive to the contrary, is on the party asserting the
affirmative of the issue of the proceeding.
Balino v. Department of Health and Rehabilitative Services, 348 So.2d
349 (Fla. 1st DCA). In this proceeding
it is the Commission, through the Advocate, that is asserting the affirmative;
that the Respondent violated the Code of Ethics for Public Officers and
Employees. Therefore, the burden of
proving the elements of the Respondent's alleged violation was on the
Commission.
A. The First Element; Public
Officer or Public Employee.
53. The parties have stipulated
that the Respondent, as Executive Director of the Authority, was a public
officer or employee at the time the incidents alleged in the Complaint filed
against the Respondent took place. The
parties have also stipulated that the Respondent was subject to the Code of
Ethics for Public Officers and Employees, Part III of Chapter 112, Florida
Statutes. Section 112.313(6), Florida
Statutes, is contained in Part III of Chapter 112, Florida Statutes. Therefore, the first element of a violation
of Section 112.313(6), Florida Statutes, has been proved.
B. The Second Element; Use of
Official Position or Property or Resources.
54. The second element of a
violation of Section 112.313(6), Florida Statutes, has also been proved. The evidence proved that the Respondent used
property or resources within his trust.
The Respondent, as Executive Director of the Authority, authorized funds
of the Authority to be spent for food and beverages and for the Respondent's
golf outing with Mr. Kinsey.
55. Proof of the second element
cannot be considered alone, however, in determining whether the Respondent
violated Section 112.313(6), Florida Statutes.
The Respondent's use of property or resources within his trust must also
be shown to meet the last two elements of a violation of Section 112.313(6),
Florida Statutes. The weight of the
evidence failed to prove these two elements.
C. The Third and Fourth
Elements; Were the Actions Corruptly Done With An Intent to Secure a Special
Privilege, Benefit or Exemption.
1. Expenditures at the Tampa
Club.
56. The weight of the evidence
in this case failed to prove that the charges made by the Respondent at the
Tampa Club were made with an intent to secure a special privilege, benefit or
exemption for himself or others. The
Respondent did of course benefit from the charges since he did not have to pay
for food and beverages which he would have otherwise had to pay for. The evidence failed to prove, however, that
this benefit was what motivated the Respondent to incur the charges. The evidence proved that the Respondent
incurred the charges at the Tampa Club to carry out the business of the
Authority as directed by his employer, the Board.
57. A public official or public
employee should not be allowed to escape responsibility for violating the law
solely because he or she was "ordered by superiors" to do something
which the official or employee knows or should have known was illegal. The action that the Respondent was told to
take by the Board was not, however, such an obviously illegal or improper
act. The Board's action in directing
the Respondent to join the Tampa Club and use it to entertain on behalf of the
Authority may have been a questionable use of public funds. This directive was not, however, obviously
illegal. The action was consistent with
business operations in the private sector and consistent with how the Authority
operated in carrying out its duties.
58. The fact that the Board may
not have closely scrutinized the Authority's budget in the years after the
Board directed the Respondent to open an account at the Tampa Club also does
not support a finding that the Respondent's intent in continuing to use the
Tampa Club was to secure a special privilege, benefit or exemption for himself
or others. The fact is that the Board approved
the continued use of the Tampa Club and all other expenditures from the public-relations
account when it voted to accept the Authority's budget. The weight of the evidence failed to prove
that the manner in which the public-relations account was included in the
budget presented to the Board was inconsistent with generally accepted
accounting principles or otherwise indicated that the Respondent was attempting
to conceal his continued use of the Tampa Club from the Board.
59. Finally, the fact, as
stipulated to by the parties and supported by the evidence in this proceeding,
that all of the charges incurred at the Tampa Club by the Respondent were for
business lunches and breakfasts by the Respondent supports the conclusion that
the Respondent did not use the Tampa Club with an intent to secure a special
privilege, benefit or exemption for himself or others. The Respondent's intent was to carry out the
business of the Authority as directed by the Board.
60. The facts which support a finding
that the Respondent's intent in using the Tampa Club was not to secure a
privilege, benefit or exemption for himself or others also support a conclusion
that the weight of the evidence failed to prove the last element, that the
Respondent's actions were done "corruptly." The term "corruptly" is defined in Section 112.312(7),
Florida Statutes, as follows:
(7)
"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.
61. Although the use of public
funds to pay for lunches and breakfasts may be inconsistent with the proper
performance of public duties, the evidence failed to prove that the
Respondent's actions were taken with a "wrongful intent." As indicated, supra, the Respondent's use of
the Tampa Club was at the direction of the Board of the Authority and not for
any wrongful purpose.
2. Expenditures for Golf.
62. The weight of the evidence
in this case also proved that the charges made by the Respondent for the golf
outing with Mr. Kinsey were not made with an intent to secure a special
privilege, benefit or exemption for himself or others. The Respondent did benefit from the payment
of for the outing since he did not have to pay for his round of golf. The weight of the evidence failed to prove, however,
that this benefit was what motivated the Respondent to incur the charges. The Respondent was directed by the Chairman
of the Board to take steps to resolve the conflict between the Respondent and
Mr. Kinsey, a Board member. Although
the Respondent's decision to invite Mr. Kinsey to play golf may have been a
questionable use of public funds, his action was intended to resolve a conflict
detrimental to the business of the Authority.
His action was also consistent with business operations in the private
sector.
63. In light of the Respondent's
relationship with Mr. Kinsey and the animosity between them, it is doubtful
that the Respondent suggested playing golf with Mr. Kinsey simply because he
enjoyed playing golf. The only
reasonable conclusion that can be reached, based upon the ill-will between the
Respondent and Mr. Kinsey, is that the Respondent believed that their
differences could be resolved if they were able to talk, as suggested by the
Chairman of the Board, in a more relaxed setting.
64. Again, the fact that the
Board may not have closely scrutinized the Authority's budget and the use of
the public-relations account to pay for the golf outing does not support a
finding that the Respondent's intent in charging the golf outing to the public-relations
account was to secure a special privilege, benefit or exemption for himself or
others. The fact is that the Board
approved all expenditures from the public-relations account. The weight of the evidence failed to prove
that the manner in which the public-relations account was included in the
budget presented to the Board was inconsistent with generally accepted
accounting principles or otherwise indicated that the Respondent was attempting
to conceal his use of the account to pay for the golf outing from the Board.
65. The facts which support a
finding that the Respondent's intent in charging the golf outing to the public-relations
account was not to secure a privilege, benefit or exemption for himself or
others also support a conclusion that the weight of the evidence failed to
prove the last element, that the Respondent's actions were done "corruptly." Although the use of public funds to pay for
the golf outing may be inconsistent with the proper performance of public
duties, the evidence failed to prove that the Respondent's actions were with a
"wrongful intent." As
indicated, supra, the Respondent's golf outing was only undertaken after he was
directed to get Mr. Kinsey into a more relaxed setting and to resolve the
conflict between the Respondent and Mr. Kinsey. The Respondent's conclusion that this action was for the benefit
of the Authority and, therefore, a legitimate charge to the public-relations
account, was reasonable and not with a "wrongful intent." This conclusion is further supported by the
fact that golf outings with other Authority Board members were not charged to
the Authority by the Respondent.
RECOMMENDATION
Based upon the foregoing Findings of Fact and Conclusions of Law, it is
RECOMMENDED that the Commission on Ethics enter a Final Order and Public
Report finding that the evidence failed to prove that the Respondent, Cliff
Hayden, Jr., violated Section 112.313(6), Florida Statutes, as alleged in
Complaint No. 89-127.
DONE and ENTERED this 16th day of August, 1991, in Tallahassee, Florida.
___________________________________
LARRY J. SARTIN
Hearing Officer
Division of Administrative Hearings
The DeSoto Building
1230 Apalachee Parkway
Tallahassee,
Florida 32399-1550
(904)
488-9675
Filed with the Clerk of the
Division of Administrative Hearings
this 16th day of August, 1991.
COPIES FURNISHED:
Virlindia Doss
Assistant Attorney General
Department of Legal Affairs
The Capitol, Suite 1601
Tallahassee, Florida 32399-1050
David M. Carr, Esquire
600 Madison Street
Tampa, Florida 33602
Bonnie J. Williams
Executive Director
Commission on Ethics
The Capitol, Room 2105
Tallahassee, Florida 32399
NOTICE OF RIGHT TO
SUBMIT EXCEPTIONS
All parties have the right to submit
written exceptions to this Recommended Order.
All agencies allow each party at least 10 days in which to submit
written exceptions. Some agencies allow
a larger period within which to submit written exceptions. You should contact the agency that will
issue the final order in this case concerning agency rules on the deadline for
filing exceptions to this Recommended Order.
Any exceptions to this Recommended Order should be filed with the agency
that will issue the final order in this case.