BEFORE
THE
STATE
OF FLORIDA
COMMISSION
ON ETHICS
In re JAN
PARTIN, )
)
Respondent. ) Complaint No. 91-29
) Final Order No. COE ____
)
________________________)
FINAL
ORDER AND PUBLIC REPORT
This matter came before the Commission on
Ethics on the Recommended Order rendered in this matter on December 22, 1993 by
the Division of Administrative Hearings' Hearing Officer. The Hearing Officer recommends that the
Commission issue its public report and final order finding that Respondent
violated Section 112.313(6), Florida Statutes.
She also recommends a penalty of $1,200 restitution and $5,000 civil
penalty, for a total of $6,200. The
Respondent telefaxed his exceptions to the Commission on January 14, 1994 at
6:02 p.m. They were filed with the
Commission on January 18,1994--its next business day.
Having reviewed the Recommended Order, the
Respondent's Exceptions, and the record of the public hearing of this
complaint, and having heard arguments of counsel for the Respondent and the
Commission's Advocate, the Commission makes the following findings,
conclusions, rulings, and recommendations:
STANDARDS FOR
REVIEW
Under Section 120.57(1)(b)10, Florida
Statutes, an agency may reject or modify the conclusions of law and
interpretations of administrative rules contained in the recommended
order. However, the agency may not
reject or modify findings of fact made by the Hearing Officer unless a review
of the entire record demonstrates that the findings were not based on
competent, substantial evidence or that the proceedings on which the findings
were based did not comply with the essential requirements of law. See, e.g., Freeze v. Dept. of Business
Regulation, 556 So. 2d 1204 (Fla. 5th DCA 1990); and Florida Department
of Corrections v. Bradley, 510 So. 2d 1122 (Fla. 1st DCA 1987). Competent, substantial evidence has been
defined by the Florida Supreme Court as such evidence as is "sufficiently
relevant and material that a reasonable mind would accept it as adequate to
support the conclusions reached." DeGroot
v. Sheffield, 95 So. 2d 912, 916 (Fla. 1957).
The agency may not reweigh the
evidence, resolve conflicts therein, or judge the credibility of witnesses,
because those are matters within the sole province of the hearing officer. Heifetz v. Dept. of Business Regulation,
475 So. 2d 1277, 1281 (Fla. 1st DCA 1985).
Consequently, if the record of the DOAH proceedings discloses any
competent, substantial evidence to support a finding of fact made by the Hearing
Officer, the Commission is bound by that finding.
1. Respondent
excepts to the last sentence of the Hearing Officer's finding which
states: "In the absence of the
Executive Director, she was totally responsible for the operation of the
Housing Authority." Respondent
argues that although the record would support that Respondent would be in the
office and take calls, etc., the record also is clear that she did not have
full responsibility or authority to act in the absence of the Executive
Director.
Respondent's exception is rejected. See Respondent's Exhibit No. 19. As stated by the court in Heifetz v.
Department of Business Regulation, Division of Alcoholic Beverages &
Tobacco, 475 So. 2d 1277, 1281 (Fla. 1st DCA 1985):
It is the hearing officer's function to
consider all the evidence presented, resolve conflicts, judge credibility of
witnesses, draw permissible inference from the evidence, and reach ultimate
findings of fact based on competent substantial evidence. State Beverage Department v. Ernal, Inc.,
115 So. 2d 566 (Fla. 3d DCA 1959). If,
as is often the case, the evidence presented supports two inconsistent
findings, it is the hearing officer's role to decide the issue one way or the
other.
It is not our
function to reweigh the evidence or to rewrite the Hearing Officer's finding as
long as there is competent substantial evidence to support the finding, as
there is here.
2. Respondent
excepts to the Hearing Officer's findings in paragraph 2 of her Findings of
Fact. Respondent argues that the
conclusion is not supported by the record.
For the reasons stated in paragraph 1 above, Respondent's exception is
rejected.
3. Respondent
excepts to the Hearing Officer's findings in paragraph 4 of her Findings of
Fact. Respondent argues that while the
record would support that the Carrerous had frequent contact with the
Respondent, the record also clearly shows that Respondent did not sign any of
the leases with them nor was she the primary person in charge of the Section 8
program for the Housing Authority.
For the reasons set forth in paragraph 1
above, Respondent's exception is rejected.
See also Transcript pp. 66-69 and 115-119.
4. Respondent
excepts to the Hearing Officer's finding in paragraph 5 of her Findings of
Fact. Respondent argues that the record
does not support the "implication" of the fact finder that Mr.
Ahmad's control of the Section 8 program was merely "formal," nor
that the Carrerous' perception was reasonable.
Respondent asserts that the Carrerous were told many times that
Respondent was not in charge of the Section 8 program.
Initially, we note that the finding
states: "As Executive Director,
Ash Ahmad was the formal administrator of the Section 8 program." We do not glean any other
"implication" from that statement.
We find that statement also is supported by competent substantial
evidence of record. See Tr. pp.
277-278. For the reasons stated in
paragraph 1 above, we reject Respondent's exceptions.
5. Respondent
excepts to paragraph 6 of the Hearing Officer's Findings of Fact. Respondent argues that the record does not
support the finding that Respondent called Mr. Carrerou, and that the remaining
findings are "seriously contradicted" in the record. Respondent contends that there is no
evidence that Respondent prepared the "note in question," and the
record also is clear that because Mr. Carrerou received the note given by Mr.
Keaton's mother mentioning her certificate of deposit, he believed that he had
security for his loan.
For the reason stated in paragraph 1 above,
Respondent's exception is rejected. As
stated above, it is the function of the hearing officer to resolve conflicts,
to judge credibility of witnesses, to draw permissible inferences from the
evidence, and to reach ultimate findings of fact based on competent substantial
evidence, as she did here. It is not
our function to reweigh the evidence as there is competent substantial evidence
to support the Hearing Officer's findings.
Inasmuch as the Hearing Officer fulfilled her function of weighing the
evidence, judging the credibility of witnesses, and drawing permissible
inferences from the evidence, Respondent's exceptions are rejected.
6. Respondent
excepts to paragraph 7 of the Hearing Officer's Findings of Fact. Respondent asserts that the record is
disputed and that there is no "extrinsic evidence" to support a
finding that there was any "untoward relationship" between the
Respondent and Mr. Keaton. Respondent
asserts that she loaned and gave monies to others besides Mr. Keaton, and no
illicit relationship was implied thereby.
Respondent also contends that the record reflects that HRS became
involved in the custody dispute. She
claims that at a later hearing Mr. Keaton and Ms. Marshall acted together,
contrary to Respondent's belief as to what was in the best interests of the
children, and that Mr. Keaton was not happy with Respondent for supporting HRS
in the matter. She claims that the
Hearing Officer's findings are not supported by the record.
For the reasons stated in paragraph 1 and 6
above, Respondent's exceptions are rejected.
7. Respondent
excepts to paragraph 9 of the Hearing Officer's Findings of Fact. Respondent claims that Mr. Keaton asked to
testify in the Federal law suit. She
claims that the "implication" emanating from the Hearing Officer's
use of "agree" is not supported by the record. She asserts that Ms. Ibanez, the Housing
Authority's attorney, did not find Mr. Keaton to be a good witness and had no
intention of using him.
For the reason stated in paragraphs 1 and 6
above, Respondent's exception is rejected.
See Tr. 23. Inasmuch as the
Hearing Officer fulfilled her function of weighing the evidence, judging the
credibility of the witnesses, and drawing permissible inferences from the
evidence, we are not free to supplement her findings. As the Court stated in Manasota 88, Inc. v. Tremor, 545
So. 2d 439 (Fla. 2d DCA 1989):
Agency fact-finding independent of and
supplementary to D.O.A.H. proceedings has been specifically disapproved. See e.g. Friends of
Children v. Department of Health and Rehabilitative Services, 504 So. 2d
1345 (Fla. 1st DCA 1987).
Whether or not
Attorney Ibanez intended ultimately to use Mr. Keaton's testimony in the
Federal proceeding, as Respondent contends, is immaterial to the Hearing
Officer's finding.
8. Respondent
excepts to paragraph 13 of the Hearing Officer's Findings of Fact and,
presumably, specifically with the Hearing Officer's finding that the Carrerous
were never repaid their $1200.
Respondent claims that the record indicates that judgment was entered in
favor of the Carrerous when they sued Mrs. Oglegtree and her son, Mr.
Keaton. She argues that "the law
is clear that entry of a judgment pays the underlying debt and converts
it into a judgment lien," and the fact that Mr. Carrerou decided to
forgive the lien does not reinstate the underlying debt. [Emphasis added.]
The Hearing Officer's findings are
supported by substantial competent evidence of record, therefore, Respondent's
exception is rejected. We also note
that Respondent is incorrect in her statement of the law. "A debt reduced to judgment merges with
it, and a judgment is sometimes characterized as a debt." 32 Fla Jur 2d, Judgments and Decrees, sec.
80. The entry of a judgment does not,
in and of itself, "pay" anything.
9. Respondent
excepts to paragraph 14 of the Hearing Officer's Findings of Fact. Respondent argues that although the Hearing
Officer's finding technically is correct, the record does not reflect any
intention for Mr. Keaton be a witness in the federal case.
For the reasons stated in paragraph 1 and 6
above, Respondent's exception is rejected.
There is competent substantial evidence of record to support the Hearing
Officer's findings.
10. Respondent
excepts to paragraph 15 of the Hearing Officer's Findings of Fact. Respondent argues that the greater weight of
the evidence does not establish that Respondent had any motive beyond that of
helping one of the residents or the children of the client. She argues further that Respondent was
concerned for the children of April Marshall far more than she was concerned
for Mr. Keaton. She claims that Mr.
Keaton had not wanted to take the children from Ms. Marshall, but that, she
felt that he was a better parent than their mother.
Because there is competent substantial
evidence of record to support the Hearing Officer's findings and, in making her
findings, the Hearing Officer properly fulfilled her function of judging the
credibility of the witnesses, weighing the evidence, and drawing permissible
inferences therefrom, Respondent's exception is rejected.
RULING ON RESPONDENT'S EXCEPTIONS TO
CONCLUSIONS OF LAW
11. Respondent
excepts to the Hearing Officer's conclusion at paragraph 19 of the Recommended
Order that the greater weight of "credible" evidence established that
Respondent used her official position in order to obtain a loan from the
Carrerous to benefit a man with whom she was intimately involved. Respondent argues initially that the
conclusion that Respondent was motivated by any relationship to Mr. Keaton is
not supported by the facts.
Because Respondent attempts to
reargue the facts as found by the Hearing Officer in paragraph 15 of her
Findings of Fact, which we already have determined to be supported by competent
substantial evidence of record and from which permissible inferences were
derived by the Hearing Officer, Respondent's exception is rejected.
Next, Respondent argues that there is no
basis to believe that Respondent had any corrupt intent. Here, Respondent confuses the terminology of
Section 112.313(6), Florida Statutes.
An element of a Section 112.313(6), Florida Statutes, violation is that
the public officer or employee "corruptly" used or attempted to use
her official position. "Corruptly
is defined at Section 112.312(9), Florida Statutes, to mean
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.
We find that
the Hearing Officer correctly concluded that the "wrongful intent"
required for Respondent to have acted "corruptly" is "determined
from "the circumstances surrounding [Respondent's] relationship with
Keaton and the Carrerous' relationship with the Housing Authority." Therefore, Respondent's exception is rejected.
Respondent also argues that Respondent
received no personal gain. However, for
a violation of Section 112.313(6), Florida Statutes, to exist, the Respondent
would have to corruptly use or attempt to use her official position or any
property or resource which may be within her trust, or perform her official
duties, to secure a special privilege, benefit, or exemption for herself
or others. Inasmuch as the
Hearing Officer concluded that Respondent used her official position to secure
a loan for the benefit of Mr. Keaton, "a man with whom she was intimately
involved," we find that the Hearing Officer correctly concluded that the
element of Respondent's actions having been done to secure a special privilege,
benefit, or exemption for herself or others was proved. Respondent's
exception, therefore, is rejected.
Respondent argues further that the
definition of "corruptly" does not disallow helping others. She argues that the Hearing Officer's
conclusion does not find Respondent's acts to have been "inconsistent with
the proper performance" of her public duties. This exception also is rejected.
Contrary to Respondent's assertion is the Hearing Officer's finding in
paragraph 15 of her Findings of Fact that the referral of Timothy Keaton for a
loan to a landlord in a housing authority program was not within the scope of
the appropriate function of the Housing Authority staff to refer tenants and
other members of the public to other social service agencies or resources. In light of this finding, we conclude that
Respondent's arranging a loan for Mr. Keaton from Mr. Carrerou was inconsistent
with the proper performance of her public duties. Therefore, inasmuch as the Hearing Officer found that Respondent
acted with wrongful intent to obtain a benefit (the loan from Mr. Carrerou for
Mr. Keaton) and that her actions were inconsistent with the proper performance
of her public duties, we conclude that Respondent acted "corruptly"
within the meaning of Section 112.312(9), Florida Statutes, and that the
Hearing Officer correctly concluded that the Respondent violated Section
112.313(6), Florida Statutes.
Respondent's remaining exceptions to this
conclusion also are rejected because they are attempts to reargue facts and
inferences derived from those facts which we have found to have been supported
by competent substantial evidence of record.
12. Respondent
excepts to paragraph 21 of the Hearing Officer's conclusion that under Section
112.317, Florida Statutes, the suggested penalty of restitution and a $5,000
fine are appropriate. Respondent argues
that the penalty is out of proportion to any offense that may have be
proved. She also argues that requiring
her to pay "restitution" when the debt has been paid by judgment is
unconscionable. She argues that Mr.
Carrerou elected his remedy by suing on the note.
We disagree. See paragraph 8 above.
Respondent's exception therefore is rejected.
Upon review of the record before us, we
conclude that the findings of the Hearing Officer are based upon competent
substantial evidence and that the D.O.A.H. proceedings complied with the
essential requirements of law.
Therefore, the Findings of Fact set forth in the Recommended Order are
approved, adopted, and incorporated herein by reference.
The conclusions of law, except as modified
in paragraph 11 above to add the conclusion that Respondent's actions were
inconsistent with the proper performance of her public duties, are approved,
adopted, and incorporated herein by reference.
Accordingly, the Commission on Ethics finds
that the Respondent violated Section 112.313(6), Florida Statutes.
The Hearing Officer recommended that
Respondent be required to pay a penalty of $1,200 restitution and a civil
penalty of $5,000, for a total of $6,200.
We find her recommendation to be appropriate.
Having found that the Respondent, Jan
Partin, as Administrative Assistant to the Winter Haven Housing Authority's
Executive Director, violated Section 112.313(6), Florida Statutes, it is the
recommendation of the Commission on Ethics that a penalty of restitution of $1,200
and a civil penalty of $5,000 be imposed upon the Respondent, for a total of
$6,200.
ORDERED by the State of Florida Commission
on Ethics meeting in public session on March 10, 1994.
____________________________
Date
Rendered
_______________________________
Joel
K. Gustafson
Chairman
THIS
ORDER CONSTITUTES FINAL AGENCY ACTION. ANY PARTY WHO IS ADVERSELY AFFECTED BY
THIS ORDER HAS THE RIGHT TO SEEK JUDICIAL REVIEW UNDER SECTION 120.68, FLORIDA
STATUTES, BY FILING A NOTICE OF ADMINISTRATIVE APPEAL PURSUANT TO RULE 9.110
FLORIDA RULES OF APPELLATE PROCEDURE, WITH THE CLERK OF THE COMMISSION ON
ETHICS, 2822 REMINGTON GREEN CIRCLE, SUITE 101, P.O. DRAWER 15709, TALLAHASSEE,
FLORIDA 32317-5709; AND BY FILING A COPY OF THE NOTICE OF APPEAL ACCOMPANIED BY
THE APPLICABLE FILING FEES WITH THE APPROPRIATE DISTRICT COURT OF APPEAL. THE
NOTICE OF ADMINISTRATIVE APPEAL MUST BE FILED WITHIN 30 DAYS OF THE DATE THIS
ORDER IS RENDERED.
cc: Mr. Robert H. Grizzard, II, Attorney for
Respondent
Ms. Claire Dryfuss, Acting Commission
Advocate
Mr. and Mrs. Oswald Carrerou,
Complainants
Honorable Mary Clark, Hearing Officer
Division of Administrative Hearings