STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

In Re: JOHN DANIEL FAUGHN, )

)

Respondent, ) CASE NO. 91-6025EC

) COMPLAINT NO. 90-88

)

)

)

_____________________________)

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, April 28 and 29, 1992, in Tallahassee, Florida.

APPEARANCES

For Petitioner: Virlindia Doss

Assistant Attorney General

Department of Legal Affairs

The Capitol, Suite 1601

Tallahassee, Florida 32399-1050

For Respondent: Ronald L. Jones, Esquire

Jones & Koch

1020 East Lafayette Street

Suite 108

Tallahassee, Florida 32301

STATEMENT OF THE ISSUES

Whether the Respondent, John Daniel Faughn, violated Section 112.313(6), Florida Statutes, by using his position as a Labor Employment and Training Specialist to secure benefits for CARE, Inc., and, indirectly, Eugene Wood?

PRELIMINARY STATEMENT

On or about May 16, 1990, a Complaint against the Respondent, John Daniel Faughn, was filed with the Florida Commission on Ethics (hereinafter referred to as the "Commission"). Based upon a review of the Complaint, the Commission issued a Determination of Investigative Jurisdiction and Order to Investigate on August 6, 1990, ordering the staff of the Commission to conduct a preliminary investigation into whether Mr. Faughn had violated Sections 112.313(6) and 112.313(7), Florida Statutes.

Following the investigation of the allegations against Mr. Faughn, a Report of Investigation was released on March 25, 1991. Based upon the Complaint and the Report of Investigation the Advocate issued an Advocate's Recommendation on May 6, 1991. The Advocate suggested that there was probable cause to believe that Mr. Faughn had violated Section 112.313(6), Florida Statutes. The Advocate also suggested that there was no probable cause to believe that Mr. Faughn had violated Section 112.313(7), Florida Statutes.

Based upon the Report of Investigation and the Advocate's Recommendation the Commission issued an Order Finding Probable Cause on June 12, 1991. The Commission determined that there was probable cause to believe that Mr. Faughn had violated Section 112.313(6), Florida Statutes, and that there was no probable cause to believe that Mr. Faughn had violated Section 112.313(7), Florida Statutes. The Commission ordered that a public hearing be conducted.

By letter dated September 23, 1991, the Commission referred the matter to the Division of Administrative Hearings. In accordance with Rules 34-5.010 and 34-5.014, Florida Administrative Code, the Commission requested that the public hearing on the Complaint against Mr. Faughn be conducted by the Division of Administrative Hearings.

A Notice of Hearing was entered scheduling the final hearing of these cases for January 30 and 31, 1992. A joint motion for continuance filed by the Advocate was granted by order entered January 27, 1992. The final hearing was rescheduled for April 28 and 29, 1992.

Prior to the final hearing the parties filed a pre-hearing statement containing stipulated findings of fact. Those facts have been accepted in this Recommended Order.

At the final hearing the Advocate presented the testimony of the complainant, William Geier, Bonita Stokley, Julian Spradlin, Sheldon Lee Kemp, Carol Marks, James Harris, Ron Rigby, Gloria Barton, Lucy Shepard, Charis Wichers and Carol Ann Breyer. The Advocate also offered thirteen exhibits which were accepted into evidence. Exhibits 2 and 13 were accepted to the extent determined to be relevant. Two exhibits offered as impeachment exhibits by the Advocate were also accepted into evidence. Advocate's Exhibit 15, one of the impeachment exhibits, was accepted to the extent it is ultimately determined to be relevant.

The Respondent testified on his own behalf and presented the testimony of Roy Glenn Chilcote and Virginia Rebecca Jetton. The Respondent also offered nine exhibits which were accepted into evidence.

The parties stipulated that no transcript of the hearing would be filed.

The parties have filed proposed recommended orders containing proposed findings of fact. A ruling on each proposed finding of fact has been made either directly or indirectly in this Recommended Order or the proposed finding of fact has been accepted or rejected in the Appendix which is attached hereto.

FINDINGS OF FACT

A. The Respondent's Employment.

1. The Respondent, John Daniel Faughn, is a Labor and Employment Training Specialist for the Department of Labor and Employment Security (hereinafter referred to as "LES"), and has held that position since 1981. (Stipulated Fact).

2. Mr. Faughn served as a contract manager for LES for approximately two years: 1988 and 1989. (Stipulated Fact).

3. At all times relevant to this proceeding, Mr. Faughn was an "employee of an agency" subject to Section 112.313(6), Florida Statutes.

4. Mr. Faughn worked in the Bureau of Job Training of LES. Mr. Faughn's immediate supervisor was Glenn Chilcote, a Specialist Supervisor at the time. Mr. Chilcote's immediate supervisor was Julian Spradlin. Mr. Spradlin's immediate supervisor was Shelton Lee Kemp, then Bureau Chief of the Bureau of Job Training.

B. The Duties of an LES Contract Manager.

5. The duties of an LES Contract Manager included negotiating contracts between LES and contractors to provide services involving the placement of individuals into employment positions, providing technical assistance requested by the contractor, receiving training and placement information from the contractor, and handling invoices submitted by the contractor once placement was made. (Stipulated Fact).

6. Although it was not a contract manager's responsibility to verify all the information provided by the contractor, contract managers did have a general duty to inquire about information which seemed out of line. (Stipulated Fact).

C. CARE, Inc. and Eugene Wood.

7. CARE, Inc., (hereinafter referred to as "CARE"), is a corporation. "CARE" is an acronym for "Center for Aging Research and Education".

8. Eugene Wood was the President of CARE from at least October 10, 1988, to May 1, 1989. (Stipulated Fact).

9. On May 1, 1989, Mr. Wood sold CARE to Mary Lookadoo, a former program participant, and her daughter and granddaughter, for the sum of $1.00. (Stipulated Fact).

10. The weight of the evidence failed to prove that Mr. Faughn was aware of the sale.

D. LES's First Contract with CARE.

11. LES administered federal Title III grant money in 1988 and 1989. Title III grant money was provided to the states for the purpose of increasing employment of individuals, particularly the disabled or long-term unemployed. Grant money for the foregoing purpose was used to pay for training and assistance to be provided by contractors to individuals in order to place them in the work force.

12. LES and CARE entered into a contract (hereinafter referred to as "Z3248"), providing for the payment of Title III grant funds to CARE for providing certain services specified in the contract between LES and CARE.

13. Mr. Faughn was the contract manager for Z3248. (Stipulated Fact).

14. Z3248 was for the period November 1, 1988, through October 31, 1989. (Stipulated Fact).

15. Pursuant to Z3248, CARE was to be paid for any eligible person placed by CARE in unsubsidized employment after a training period. The placement had to be for a minimum of 30 days of "unsubsidized employment".

16. LES agreed to pay CARE an average of $2,317.29 per placement for a maximum of 14 placements. CARE agreed to provide up to 14 placements for 30 days of unsubsidized employment after appropriate training and supervision. CARE also agreed to provide $35,205.00 in matching contributions, including "in-kind" contributions and $4,410.00 in on-the-job-training salaries.

17. Z3248 was "performance based." That is, CARE was to only received payment for successfully placing qualified persons in employment positions.

E. LES' Second, Indirect, Contract with CARE.

18. In 1989 LES and the Department of Health and Rehabilitative Services (hereinafter referred to as "DHRS"), were involved in a contract for $612,000.00 of federal Title III funds to provide job training and placement in employment of mentally handicapped individuals. Mr. Faughn was the contract manager for this contract, Z3458.

19. DHRS in turn contracted with Florida Community College, Jacksonville, Florida, for administration of Z3458. Florida Community College in turn contracted with the Florida Alliance for Employment of the Handicapped (hereinafter referred to as "FAEH"). (Stipulated Fact).

20. In March, 1989, FAEH was interested in finding service providers for Z3458.

21. A contract between FAEH and CARE was ultimately entered into on May 4, 1989. CARE was to receive approximately $2,300.00 for each placement. (Stipulated Fact).

F. Mr. Faughn's Relationship with Mr. Wood and CARE

and His Motive to Benefit Them.

22. Mr. Faughn met Mr. Wood during negotiations for the first contract, Z3248.

23. Mr. Faughn and Mr. Wood became personal friends while Mr. Faughn was the contract manager for Z3248. There were occasions when they stayed as overnight guests in each other's homes. Mr. Faughn stayed with Mr. Wood in San Mateo, Florida, where CARE was located, after Z3248 ended.

24. Mr. Faughn, while still the contract manager for Z3248, believed that he would be going to work for Mr. Wood. Mr. Faughn informed Carol Ann Breyer, then Executive Director of the Florida Alliance for the Employment of the Handicapped, that he was considering going to work for Mr. Wood on a child day-care center project. Mr. Faughn told Lucy Shepard, a Senior Management Analyst II with the Department of Health and Rehabilitative Services, that he would probably be going into business with Mr. Wood.

25. Mr. Faughn, during the time that he was contract manager for Z3248, informed his Bureau Chief, Mr. Kemp, that he was resigning to go to work for Mr. Wood. Mr. Faughn later, however, informed Mr. Kemp that the job did not materialize and requested that his resignation be rescinded.

26. Mr. Faughn, again during the time that he was contract manager for Z3248, informed Mr. Wood of two modest houses in Tallahassee, Florida. Mr. Wood expressed an interest in acquiring the houses and Mr. Faughn assisted Mr. Wood in the purchase of the houses by showing the houses to Mr. Wood and informing him of who owned them.

27. Mr. Faughn performed work on the two houses purchased by Mr. Wood, including constructing a porch on one, pressure cleaning and painting both, replacing a door and removing trash.

28. The evidence concerning Mr. Faughn's purpose in working on the houses owned by Mr. Wood and, whether Mr. Faughn was paid for his work, was conflicting. Mr. Faughn's prior statements and his testimony at the final hearing of this case concerning the houses indicate a lack of candor on his part. His explanation of why he performed the work and whether he was paid is, therefore, rejected.

29. Mr. Faughn maintained at the final hearing that he simply performed the work on the houses out of friendship. He also maintained that there was no "formal agreement" concerning the work he was to perform or his compensation. In his deposition testimony, Mr. Faughn indicated that there was never anything "firm" about being paid an hourly rate for his work and that he was never paid.

30. Mr. Faughn gave Mr. Kemp and Mr. Spradlin the impression that he was working on the houses because he had an interest in the houses and would share in any profits when they were sold. Mr. Faughn's denial of having made such statements is rejected.

31. Mr. Faughn told William Geier and Bonita Stokley of LES's Office of the Inspector General that he was to be paid an hourly wage for his work on Mr. Wood's houses. Mr. Faughn's later denial that these statements were correct is rejected.

32. Based upon the weight of the evidence, it is concluded that Mr. Faughn performed work on the houses because he believed he would be compensated in some manner for his effort. Mr. Faughn believed that he would receive an hourly wage, would share in the profits from the sale of the houses or that he would be employed by Mr. Wood in some venture. In all likelihood, Mr. Faughn expected to and, as explained, infra, did receive an hourly wage.

33. Mr. Faughn received a check for $4,500.00 dated August 4, 1989, from Mr. Wood. The check was deposited in Mr. Faughn's personal credit union account.

34. Mr. Faughn's explanation of what the $4,500.00 check he received from Mr. Wood was for and even whether the check existed has varied throughout the investigation and the hearing on this matter. Mr. Faughn's explanation varied depending on who he discussed the matter with:

a. At the final hearing Mr. Faughn testified that the check was merely a reimbursement for materials and supplies used during his work on the two houses.

b. Prior to the final hearing Mr. Faughn failed to inform investigators from LES during questioning that he was reimbursed any amount.

c. Mr. Faughn told an investigator for the Commission that he had only received $300.00 in reimbursement for supplies and materials. His testimony that he had forgotten about the $4,500.00 check is not credible.

d. Mr. Faughn's testimony in his deposition and at the final hearing and his statements to the Commission's investigator concerning the nature of the work he performed on the houses was also inconsistent.

35. After considering all the evidence concerning the $4,500.00 check, it is concluded that Mr. Faughn was paid the $4,500.00, at least in part, as compensation for his services to Mr. Wood for work on the two houses.

36. Based upon the foregoing, it is concluded that Mr. Faughn's relationship with Mr. Wood, the payment by Mr. Wood for work performed by Mr. Faughn, and Mr. Faughn's hope and belief that he would become an employee of Mr. Wood gave Mr. Faughn reason and motive to act in the interest of Mr. Wood and CARE. By acting on behalf of Mr. Wood and CARE, Mr. Faughn was acting on his own behalf.

G. The Performance of Mr. Faughn's Duties: Mr.

Faughn's Recommendations to Expand Z3248.

37. Z3248 initially provided that up to $32,442.06, was available for payment to CARE. This amount was increased, in December, 1988, to $64,884.12. (Stipulated Fact). The number of placements to be made by CARE was also increased to 28.

38. The first increase in Z3248 came about after Mr. Kemp informed Mr. Wood by letter dated November 30, 1988, of the availability of additional job placement units which CARE could apply for.

39. Shortly after Z3248 was doubled in December, 1988, Mr. Faughn approached Mr. Spradlin and recommended that the contract be doubled a second time.

40. The second recommendation to increase Z3248 was denied by Mr. Spradlin. Mr. Spradlin declined approval because he thought that there were certain costs incurred by contractors which did not increase as the number of participants increased. Therefore, as the number of participants increased, the amount of a contractor's profit per participant increased. Mr. Spradlin did not believe this was appropriate.

41. Mr. Faughn was upset with Mr. Spradlin's denial of the second request to increase Z3248. Mr. Spradlin, who indicated that most contract managers tend to support the contractors of the contracts they manage, was surprised at the level of Mr. Faughn's interest in the increase.

42. The weight of the evidence proved that Mr. Faughn's actions in recommending the second increase in Z3248 were inconsistent with the proper performance of his public duties. Although it was not inconsistent for a contract manager to recommend that a contract be increased, Mr. Faughn's reaction to Mr. Spradlin's decision not to approve the second increase coupled with Mr. Faughn's motive for benefiting CARE and Mr. Wood supports a conclusion that Mr. Faughn did not recommend the second increase as part of the performance of his public duties. Instead, Mr. Faughn's recommendation to increase Z3248 was made corruptly.

H. The Performance of Mr. Faughn's Duties: Review of

Training Hours.

43. The contract for Z3248 (Respondent's Exhibit 5) contained the following relevant provisions concerning training required by CARE:

a. CARE was to provide Employability Skills Training, Occupational Skills Training and On-the-Job Training (hereinafter referred to, respectively as "EST", "OST" and "OJT").

b. As is normally the case with these type contracts, it was contemplated in the Z3248 contract that EST would be completed before participants began unsubsidized employment:

Upon completion of training, participants will then put

their skills to practical use by searching for jobs and

having actual personal contact with employers. . . .

[Emphasis added].

Page 6, Respondent's Exhibit 5.

c. It was contemplated in the contract that OJT would require 8 to 10 weeks to provide:

While some training may be limited to the minimum of

two weeks, it is anticipated that clients will require

between 8-10 weeks of training.

Page 7, Respondent's Exhibit 5.

d. Customized training was also a possibility under the contract:

This training may be used for the needs of the employer

with a written commitment from an employer to employ

the trainee after successful completion of training.

The predominate activity will be on-the-job training,

but could include classroom training.

Page 7, Respondent's Exhibit 5.

e. Finally, the contract provided that "[t]he average length of training for OST/EST/OJT should average 235 hours for each participant." Page 12, Respondent's Exhibit 5.

44. It is to a contractor's advantage to report higher training hours.

45. As part of its contract with LES, CARE was required to forward LES Form 104 to Mr. Faughn each time a participant was placed in employment. (Stipulated Fact). This form was used as an invoice for payment for the placement of a participant in 30 days unsubsidized employment.

46. CARE was also required to file LES Form MIS 2. Form MIS 2 was to be used to report, among other things, each participant's date of enrollment, any change in status and the date of termination. The contract also required that "[i]f the contractor is the OST training agency, the participant's total training hours for EST and OST and/or OJT (whichever applies) must be written on the bottom of the MIS 2 Form for termination." Page 13, Respondent's Exhibit 5.

47. CARE filed MIS 2 Forms for its participants and reported the enrollment and termination date for each participant and the hours of EST, OST and OJT (although the training hours information was not included at the bottom of the page). See Advocate's Exhibit 7.

48. CARE also filed an LET 104 Form for its participants. On the LET 104 CARE was to report, among other things:

a. Block 6: The date that the participant began unsubsidized employment. Although it is possible that training can continue after this date, this date is usually a date after all training has ended. It would be very unusual and unlikely that training continued after the date unsubsidized employment began.

b. Block 8: The starting and ending date for OJT.

c. Block 11: The "Total Hours Trained." There was conflicting testimony as to what the information contained in this part of the form signifies. Based upon the weight of the evidence (primarily the testimony of Carol Marks of LES's Bureau of Job Training Compliance and Mr. Chilcote), more information concerning a contract is needed to determine what the information means.

d. Blocks 13 and 15: Finally, the date the form is signed. This date should be at least 30 days after the date unsubsidized employment began.

49. The purpose of the LET 104 was to certify that a participant had completed the required 30 days minimum of unsubsidized employment. Meeting this requirement entitled CARE to payment of $2,317.29 per participant. To determine if CARE was entitled to payment, the date the LET 104 was signed had to be at least 30 days after the starting date of unsubsidized employment reported in block 6 of the LET 104.

50. Each LET 104 and MIS 2 is filed with the contract manager. The contract manager must review each MIS 2. The contract manager must also review each LET 104 to determine if the contractor is entitled to payment. If so, the LET 104 Form is reviewed by the contract manager's supervisor, is then sent to the Bureau of Financial Management and then goes to the Comptroller for payment to the contractor.

51. Participants usually are required to train 40 hours a week. Although it is possible to train for more than 40 hours, it is unlikely that more than 40 hours would be expended by any participant.

52. Based on the Total Hours Trained reported on the LET 104's filed by CARE for Z3248 and the period of time of OJT reported on the LET 104's, CARE participants were investing from 61 to 129 hours a week in OJT. When the Total Hours Trained reported are compared with the period of time from the enrollment date reported on the MIS 2's to the date unsubsidized employment began, although participants spent fewer hours per week, most of them still allegedly were spending more than 40 hours a week in training: from 33.5 to 70.5 hours per week.

53. Mr. Faughn, after reviewing the LET 104's and MIS 2's filed by CARE on Z3248, did not raise any question about the number of training hours being reported by CARE.

54. The testimony concerning whether Mr. Faughn should have noticed and raised some question concerning the Total Hours Trained reported by CARE, was conflicting:

a. Mr. Geier, from the Office of the Inspector General of LES, divided the Total Hours Trained by the number of days of OJT reported in the LET 104's and by the number of days between each participant's enrollment date from the MIS 2's and the date unsubsidized employment began. His calculations, which are contained on Advocate's Exhibits 7 and 8, respectively, indicate that most participants may have been receiving more than 40 hours a week of training. See Finding of Fact 52. Mr. Geier believed that Mr. Faughn should have at least raised a question about the numbers reported as Total Hours Trained.

b. Mr. Chilcote, Mr. Faughn's immediate supervisor, disagreed with Mr. Geier's conclusion:

(1) Mr. Chilcote pointed out that contract managers have to review several LET 104's a day (LET 104's were delivered in stacks of 20 to 30 and involved more than 1 contract and, on average, Mr. Faughn reviewed 8 to 10 a day).

(2) Mr. Chilcote also explained that contract managers do not have the time to make the calculations that Mr. Geier made. In order to make the calculations Mr. Geier made, it was necessary for Mr. Geier to count the number of possible days of training and then divide the Total Hours Trained by the number of days. Although not a difficult calculation, the evidence failed to prove that the calculation is one that contract managers normally make. Additionally, Mr. Geier had to obtain some of the relevant information necessary to make the calculations from the LET 104's and from MIS 2's.

(3) If block 11, Total Hours Trained, was only for OJT hours, Mr. Chilcote agreed that Mr. Faughn should have been alarmed. Block 11, however, was being used to report all training hours: EST, OST and OJT. Mr. Faughn should have been aware that CARE was reporting all of its alleged training hours in block 11 and not just OJT. Therefore, Mr. Faughn did not believe that Block 11 was intended to represent just OJT. Mr. Chilcote did not believe that lumping the hours of EST, OST and OJT was unusual.

(4) The Total Hours Trained reported on the LET 104's were not the significant information that contract managers were supposed to review. The purpose of the LET 104 is for contractors to certify that a participant has completed, in this case, 30 hours of unsubsidized employment. Therefore, the most important information on the LET 104 is the date unsubsidized employment began and the date the form was signed. Mr. Faughn initially rejected one payment and wrote to CARE when the information concerning when unsubsidized employment began and the date the form was signed for one participant did not indicate that the participant had been through 30 days of unsubsidized employment. See Respondent's Exhibit 8.

55. Based upon the weight of the evidence, it is concluded that the evidence failed to prove that Mr. Faughn should have questioned the hours being reported as Total Hours Trained by CARE on the LET 104's.

a. In light of the fact that the Total Hours Reported included all hours of training, not just OJT, the fact that Mr. Faughn was aware that the contract required EST, OST and OJT, and the fact that the LET 104's were primarily used to receive payment for 30 days of unsubsidized employment, dividing the Total Hours Trained by the number of days of OJT was not something Mr. Faughn would be expected to do as part of his job.

b. The results of dividing the Total Hours Trained by the number of days from enrollment to the beginning of unsubsidized employment (Advocate's Exhibit 8) also does not support a conclusion that Mr. Faughn should have questioned the information because the results of this computation do not show as great a discrepancy and the evidence failed to prove that Mr. Faughn should have been comparing the information contained on the LET 104's with the information contained on the MIS 2's necessary to make this computation.

I. The Performance of Mr. Faughn's Duties: CARE's

Match.

56. CARE was required to provide "Match" on Z3248. "Match" is a requirement that a contractor provide a certain specified amount of time, equipment or 50% of OJT costs. In the case of Z3248, CARE was required to provide 50% of OJT Costs.

57. CARE was required to report the amount of its match monthly on line 7 of a "Report of Monthly Cumulative Matching Contribution-Summary." CARE did in fact file such reports and, according to its reports, provided the required match. The evidence failed to prove that CARE failed to fulfill this requirement.

58. In April, 1989, Ms. Marks and James Harris from LES's Bureau of Job Training Compliance made a site visit to CARE. The Bureau of Job Training Compliance was responsible for auditing contractors to determine whether they were complying with the requirements of their contracts.

59. Ms. Marks and Mr. Harris spent approximately one-half of a day on the visit to CARE.

60. Mr. Harris, who monitored fiscal matters, attempted to find documentation in the form of OJT agreements and time sheets to verify CARE's match of $6,398.00 reported for March, 1989. Mr. Harris was not successful and requested these documents from Mr. Wood.

61. Mr. Wood informed Mr. Harris that the documentation for the $6,398.00 of March, 1989, Match was not available. Mr. Harris told Mr. Wood that the $6,398.00 would have to be removed and Mr. Wood informed Mr. Harris that it would be.

62. Mr. Harris informed Mr. Faughn of the problem concerning the $6,398.00 of unsupported match. Mr. Harris also told Mr. Faughn that Mr. Wood had indicated that the $6,398.00 would be removed from CARE's reported Match.

63. On June 26, 1989, a letter was sent to Mr. Wood from Ron Rigby, LET Supervisor, Bureau of Job Training of LES, stating, among other things, the following:

In regard to the finding as noted in the fiscal review,

documentation submitted is inadequate to support

matching contributions of $6,398 for employer's OJT

costs. You are requested to submit employers' OJT

agreements and participants' time sheets which may be

used to adequately document the matching contributions.

We recommend that if adequate documentation is not

submitted, the match contributions of $6,398 be deleted

from the match report.

64. A copy of the June 26, 1989, letter to Mr. Wood was provided to Mr. Faughn and Mr. Chilcote with a note from Mr. Spradlin which stated:

What action will this require if enacted, i.e. are they

already short of match or would they be without this

etc.

Pls track this along with the Gretna thing until

resolution.

65. Although there was some dispute over who had the ultimate responsibility for following up on the documentation for the $6,398.00 match, the weight of the evidence proved that while ultimate responsibility may have rested with the monitors of the Bureau of Job Training Compliance, Mr. Faughn had the responsibility to follow up on this matter also. Mr. Faughn had the responsibility as the contract manager and because he was directed by Mr. Spradlin to follow up until resolution.

66. Although there was conflicting testimony concerning whether the documentation was ever provided, it is concluded that it was not. Mr. Faughn's testimony was disputed by other witnesses and, throughout the proceeding, was less than candid. Although the disappearance, and reappearance a few years later, of a file in which the documentation might have been kept and the fact that Mr. Harris left employment with LES in July, 1989, at the time of these events raises some question about whether the documents were provided, ultimately, Ms. Gloria Barton's testimony that the documentation was not provided was persuasive. Ms. Barton took over responsibility for the matter after Mr. Harris left LES. Ms. Barton asked Mr. Faughn about the documentation twice and made a note on August 8, 1989, to this effect.

67. Ultimately CARE reported that it provided more match than it was required to provide. The weight of the evidence failed to prove that it did not meet its match requirement. Although the lack of documentation for a part of the reported match raises a question in the undersigned's mind concerning the accuracy of the other reported match, no evidence was presented to indicate that the required match was not ultimately provided. Nor was any evidence provided that anyone at LES also had such a concern.

68. The weight of the evidence failed to prove that Mr. Faughn's actions with regard to whether CARE's match constituted some act or omission inconsistent with the proper performance of Mr. Faughn's public duties. The evidence, therefore, failed to prove that Mr. Faughn acted corruptly by not following up on the $6,398.00 of match questioned by Mr. Harris.

J. The Performance of Mr. Faughn's Duties: Z3458.

69. In March, 1989, Mr. Faughn approached Lucy Shepard, who acted as liaison between DHRS and LES on Z3458, and Carol Ann Breyer of FAEH and recommended that CARE and Mr. Wood be considered as a service provider. (Stipulated Fact).

70. On April 29, 1989, Mr. Faughn held a barbecue at his home for the purpose of getting CARE together with DHRS and FAEH. Ms. Shepard, Charis Wickers of FAEH and Mr. Wood, among others, attended the barbecue. (Stipulated Fact).

71. Mr. Faughn was very enthusiastic in his recommendation that CARE be awarded a contracted from FAEH.

72. It was unusual for a contract manager to suggest service providers. As the contract manager of the ultimate contract from LES, Ms. Shepard, Ms. Breyer and Ms. Wickers were all influenced by Mr. Faughn's recommendation.

73. Although Ms. Shepard, Ms. Wickers and Ms. Breyer all had reservations (based upon the fact that they had not heard of CARE as a provider of mental health services) about entering into a contract with CARE, they ultimately went along because of Mr. Faughn's recommendation and because the contract with CARE was performance based: if CARE did not perform, CARE would be paid nothing.

74. After the contract was entered into with CARE, invoices were submitted. Ultimately, invoices for at least 100 placements were submitted.

75. Ms. Shepard, Ms. Wickers and Ms. Breyer all raised questions with Mr. Faughn about their suspicions and concerns over whether CARE was performing the work it was reporting. Ms. Wickers complained more than once that CARE was not keeping sufficient contact with FAEH. Ms. Breyer questioned CARE's ability to perform as it was reporting.

76. Although Mr. Faughn was not the contract manager of the contract to FAEH, Mr. Faughn and FAEH representatives knew that DHRS and Florida Community College were "pass-thrus" and that the most significant parties were FAEH and LES.

77. Whenever Mr. Faughn was informed of the concerns of Ms. Shepard, Ms. Wickers and Ms. Breyer, Mr. Faughn would assure them that everything was okay, that CARE would perform and he would tell them not to worry.

78. The invoices submitted by CARE were suspicious because they reported employment that mentally handicapped individuals normally do not obtain and some of the telephone numbers and addresses of employers were very similar.

79. Eventually, Ms. Breyer took her concerns about the invoices to Mr. Kemp of LES. She did not go to Mr. Faughn because of his enthusiasm in recommending CARE and his lack of attention to her previous complaints.

80. CARE was not paid any amount by FAEH.

81. The weight of the evidence proved that Mr. Faughn's actions in recommending CARE for Z3458 and in ignoring the complaints against CARE were acts or omissions inconsistent with the proper performance of Mr. Faughn's public duties. But for his relationship with Mr. Wood and his desire to benefit himself indirectly through CARE and Mr. Wood, it is concluded that Mr. Faughn would not have supported CARE as a contractor in the manner that he did and that he should have taken the complaints against CARE more seriously. Therefore, the evidence proved that Mr. Faughn acted corruptly.

CONCLUSIONS OF LAW

A. Jurisdiction, Burden of Proof and Standard of

Proof.

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). Section 112.322, Florida Statutes, and Rule 34-5.0015, Florida Administrative Code, authorize the Commission to conduct investigations and make public reports on complaints concerning violations of Part III, Chapter 112, Florida Statutes (the "Code of Ethics for Public Officers and Employees").

The burden of proof, absent a statutory directive to the contrary, is on the party asserting the affirmative of the issue of the proceeding. Antel v. Department of Professional Regulation, 522 So.2d 1056 (Fla. 5th DCA 1988); Department of Transportation v. J.W.C. Co., Inc. 396 So.2d 778 (Fla. 1st DCA 1981); and Balino v. Department of Health and Rehabilitative Services, 348 So.2d 249 (Fla. 1st DCA 1977). In this proceeding it is the Commission, through the Advocate, that is asserting the affirmative: that Mr. Faughn violated Section 112.313(6), Florida Statutes. Therefore, the burden of proving the elements of Mr. Faughn's alleged violation was on the Commission.

The Commission has ruled that the standard of proof in cases before it require that the Commission prove its charges by a preponderance of the evidence. In Re Michael Langton, Complaint No 90-86 (Final Order, January 28, 1992). See also, In Re Leo C. Nicholas, 11 F.A.L.R. 5234 (1989).

B. Section 112.313(6), Florida Statutes.

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.

To conclude that Mr. Faughn is guilty of a violation of Section 112.313(6), Florida Statutes, the Advocate was required to prove the following elements:

a. Mr. Faughn must have been either a public officer

or public employee;

b. Mr. Faughn must have used, or attempted to use, his

official position or property or resources within his

trust, or performed his official duties:

(1) Corruptly; and

(2) With an intent to secure a special privilege,

benefit or exemption for themselves or others.

C. Mr. Faughn's Alleged Violation of Section

112.313(6), Florida Statutes.

1. The First Element: Public Officer or Public

Employee.

Section 112.313(1), Florida Statutes, defines the terms "public officer" to include "any person elected or appointed to hold office in any agency . . . ." An "agency" is defined in Section 112.312(2), Florida Statutes, to mean "any state, regional, county, local, or municipal government entity of this state, whether executive, judicial, or legislative . . . ."

The evidence proved that LES is an agency of the State of Florida. The evidence also proved that Mr. Faughn was an employee of LES. Therefore, Mr. Faughn was an "employee of an agency" for purposes of Section 112.313(6), Florida Statutes.

2. The Second Element: Use of Official Position or

Property or Resources.

The second element of a violation of Section 112.313(6), Florida Statutes, has also been proved, at least in part. The evidence proved that Mr. Faughn was acting in his official capacity as a Labor and Employment Training Specialist for LES. The evidence also proved that Mr. Faughn acted "corruptly" but not with regard to all the instances of corrupt conduct alleged by the Advocate.

The term "corruptly" is defined in Section 112.313(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.

The crucial element of the definition of "corruptly" at issue in this case is whether Mr. Faughn committed any act or omission as a public servant which was inconsistent with the proper performance of his public duties. It has been suggested by the Commission that Mr. Faughn did so act in essentially four instances: (1) Mr. Faughn's suggestion that CARE receive a second increase in the number of participants under Z3248; (2) Mr. Faughn's failure to question the training hours reported by CARE on Z3248; (3) Mr. Faughn's failure to follow up on whether CARE was entitled to $6,398.00 of match on Z3248 questioned by Mr. Harris; and (4) Mr. Faughn's recommendation of CARE on Z3458 and his failure to heed warnings about CARE on Z3458.

With regard to Mr. Faughn's failure to question the training hours on Z3248 and the $6,398.00 of match, the evidence failed to prove that Mr. Faughn acted or failed to act in a manner that was not consistent with the proper performance of his public duties. With regard to the training hours, Mr. Faughn's supervisor's testimony refuted the concerns expressed by the Inspector General's Office of LES about Mr. Faughn's handling of reported training hours. Given Mr. Chilcote's testimony, it cannot reasonably be concluded that Mr. Faughn acted improperly or failed to act inconsistent with his public duties in failing to question CARE's training hours.

With regard to Mr. Faughn's failure to follow up on the question of match, the evidence also failed to prove that Mr. Faughn acted improperly. The evidence failed to prove that Mr. Faughn acted improperly by waiting to see if CARE ultimately met its match requirement or that CARE did not actually ultimately meet its match requirement. Again, there was independent testimony that Mr. Faughn's actions were not improper.

The evidence did prove, however, that Mr. Faughn acted improperly in recommending a second increase in Z3248 for CARE. Although it was not unusual for a contractor manager to recommend an increase in a contract, Mr. Faughn's reaction to the denial of his recommended second increase of Z3248 and his relationship with Mr. Wood and, indirectly, CARE, support a conclusion that Mr. Faughn recommended the second increase for an improper purpose and not as part of his official duties. Mr. Faughn was acting with a wrongful intent and was attempting to benefit himself when he recommended the second increase in Z3248.

The evidence also proved that Mr. Faughn acted improperly with regard to Z3458 when he supported CARE as a contractor and when he ignored questions raised about whether CARE was performing adequately. There was no reason why Mr. Faughn should have supported CARE in the manner he did or why Mr. Faughn would ignore concerns raised about CARE other than his hope that it would ultimately benefit his relationship with Mr. Wood. Mr. Faughn acted corruptly in his actions concerning CARE and Z3458.

The foregoing conclusions turn on the intent for Mr. Faughn's actions. In attempting to determine Mr. Faughn's intent, his lack of candor during this proceeding and his motive for acting improperly have been considered. Given his lack of candor and his motive, his explanation of why he supported the second increase of Z3248 and why he acted in the manner he did with regard to Z3458 was insufficient to overcome the proof which supports a conclusion that he acted to benefit himself. Mr. Faughn's testimony concerning his actions or failure to act with regard to training hours and match was supported by evidence from others. That evidence was sufficient to overcome the proof that Mr. Faughn was acting improperly with regard to those matters.

D. Penalty.

Section 112.317, Florida Statutes, provides penalties which may be imposed for a violation of the Code of Ethics for Public Officers and Employees. Section 112.317, Florida Statutes, provides, in pertinent part, the following:

(1) Violation of any provision of this part . . .

shall, pursuant to applicable constitutional and

statutory procedures, constitute grounds for, and may

be punished by, one or more of the following:

. . . .

(b) In the case of an employee or a person designated

as a public officer by this part who otherwise would be

deemed to be an employee:

1. Dismissal from employment.

2. Suspension from employment for not more than 90

days without pay.

3. Demotion.

4. Reduction in salary level.

5. Forfeiture of no more than one-third salary per

month for no more than 12 months.

6. A civil penalty not to exceed $5,000.00.

7. Restitution of any pecuniary benefits received

because of the violation committed.

8. Public censure and reprimand.

. . . .

The Advocate has recommended that a civil penalty of $5,000.00 and dismissal from employment be imposed in this matter. This recommendation was based, at least in part, on the Advocate's argument that Mr. Faughn had abused his position as alleged. In light of the fact that the evidence failed to prove all of the particular instances of impropriety, the recommended penalty is too severe.

The violation proved in this case is, however, significant. Mr. Faughn was in a position of trust involving the expenditure of public funds. Mr. Faughn failed to exercise good judgement in carrying out his responsibilities. He allowed his concern with his personal well being and the hope that he would enter into some kind of business/employment relationship with Mr. Wood to interfere with his duty to the public. On the other hand, the evidence failed to prove that any public funds were lost as a result of Mr. Faughn's actions or that Mr. Faughn attempted to directly obtain a financial benefit from his improper actions.

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 John Daniel Faughn violated Section 112.313(6), Florida Statutes. It is further

RECOMMENDED that the Commission suspend Mr. Faughn without pay for one month and demote him to a position in which he will not have direct or indirect responsibility for public funds. If Mr. Faughn cannot be demoted to such a position, it is recommended that the Commission suspend him without pay for a period of two months.

DONE and ENTERED this _____ day of June, 1992, 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 ____ day of June, 1992.

APPENDIX

The parties have submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted.

The Advocate's Proposed Findings of Fact

Proposed Finding Paragraph Number in Recommended Order

of Fact Number of Acceptance or Reason for Rejection

A.

1 1.

2 2.

3 5.

4 6.

B.

1 7.

2 8.

3 9.

4 Not relevant. See 10.

C.

1 11.

2 12 and 21.

3 12 and 14.

4 13.

5 37.

6 Hereby accepted.

7 Not supported by the weight of the evidence.

8 18 and 21.

9 18.

10 19.

11 21.

12 80.

D.

1 22-23.

2 24-25.

3 26.

4 27.

5 28-31.

6 31.

7 34.

8 33.

9 31 and 34.

10-14 34.

15 34-36.

E.

1 37 and 39.

2 40.

3 41.

4 Not supported by the weightof the evidence.

5 45.

6 48.

7 Hereby accepted. But see 55.

8 See 52 and 54.

9 51. The Respondent did not have the burden of that over 40 hours of training per week was provided. The burden of proof was on the Advocate.

10 See 48.

11 47-48.

12 51.

13 The burden of proof was on the Advocate to prove participants did not receive training after being placed in unsubsidized employment. Although the evidence raised doubt about whether such training was provided, the evidence did not prove this fact.

14 See 54-55.

15 44.

16 Hereby accepted. But see 55.

17 See 55. Except for the first sentence, this proposed finding of fact is not supported by the weight of the evidence.

18 65.

19 58 and 60.

20 56.

21 63-64.

22-25 66.

26 Not supported by the weight of the evidence. See 67.

27 69 and hereby accepted.

28 70.

29 71.

30 73 and 76.

31 21 and 73.

32-33 75 and 77.

34 78-79.

35 Not relevant.

36 79.

37 80.

38 33-36. The last paragraph is not supported by the weight of the evidence.

Mr. Faughn's Proposed Findings of Fact

Proposed Finding Paragraph Number in Recommended Order

of Fact Number of Acceptance or Reason for Rejection

1 1.

2 2.

3 5.

4 5 and 50.

5 12-16.

6 17, 45 and 49.

7 38.

8 37 and hereby accepted.

9 Not supported by the weight of the evidence. The evidence failed to prove whether CARE fulfilled its obligations or whether it failed to fulfill its obligations.

10 The evidence failed to prove that Mr. Faughn's performance "was exactly as it should have been." See 22, 45 and 47. The third sentence is hereby accepted.

11-12 Not supported by the weight of the evidence.

13 18, 20 and 69.

14 70.

15 Not supported by the weight of the evidence.

16 21 and 71.

17 Not supported by the weight of the evidence. See 75 and 77. Not supported by the weight of the evidence. See 73 and 76.

19 Not supported by the weight of the evidence. See 81.

20 33 and See 34-36. The evidence failed to prove that the sole purpose of the $4,500.00 check was for materials.

21 Not supported by the weight of the evidence. See 35-36.

22 See 55.

23 Not supported by the weight of the evidence. See 42 and 81.

24 See 6, 65 and 68.

COPIES FURNISHED:

Virlindia Doss

Assistant Attorney General

Department of Legal Affairs

The Capitol, Suite 101

Tallahassee, Florida 32399-1050

Ronald L. Jones, Esquire

1020 East Lafayette Street, Suite 108

Tallahassee, Florida 32301

Bonnie J. Williams

Executive Director

Commission on Ethics

The Capitol, Room 2105

Post Office Box 6

Tallahassee, Florida 32302-0006

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.