BEFORE THE

STATE OF FLORIDA

COMMISSION ON ETHICS

In re JOHN JENKINS,

DOAH Case No. 91-8323EC

Respondent. Complaint No. 91-43

Final Order No. COE 92-15

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FINAL ORDER AND PUBLIC REPORT

This matter came before the Commission on Ethics on the Recommended Order rendered in this matter on May 19, 1992, by the Division of Administrative Hearings (a copy of which is attached and incorporated by reference). While the Commission Advocate's exception to the Conclusions of Law was timely filed, the Respondent's exceptions were not filed with the Commission until July 16, 1992 and no transcript of the hearing was filed. At the hearing on this matter before the Commission, the Respondent moved to withdraw his exceptions from consideration by the Commission. Respondent's motion was granted. The Hearing Officer's Recommended Order recommends that the Commission find that Respondent, as Captain with the Washington County Sheriff's Office, did not violate Section 112.313(6), Florida Statutes, by intimidating Mr. Hinson in leaving the Sheriff's offices without receiving a copy of the documents that he had come to get.

The Commission's Advocate excepts to the language contained in the Hearing Officer's Conclusions of Law at page 21 of the consolidated Recommended Order (consolidated with Complaint No. 91- 42), and urges that it be amended to read as follows:

The evidence also failed to prove that Sheriff

Peel's actions in response to Mr. Hinson's

request to file a complaint against him were

done "corruptly" or with any intent to avoid

Mr. Hinson's complaint. At worst, the evidence

proved that Sheriff Peel lost his patience with

Mr. Hinson. by the time that Mr. Hinson

indicated that he wanted to file a complaint,

both men had lost their tempers and neither man

would "back down." It is possible for the

corrupt intent required by the statute to be

formed instantaneously, and a premeditated plan

for securing a special benefit is not required

by the statute. Even a reflexive reaction may

rise to the level of corrupt intent, depending

on the circumstances. However, the

circumstances of this case indicates that

Sheriff Peel's response was not taken with an

intent to secure a calculated benefit. His response

was not made with any wrongful intent. The

evidence did not prove that Sheriff Peel's

response was intended to provide "the emotional

satisfaction of demonstrating that the Sheriff

could not be challenged on his own turf."

The Commission Advocate argues that the Hearing Officer's language suggests wrongly that actions taken on the spur of the moment or reflexively are incapable of being supported by the corrupt intent required by the Section 112.313(6), Florida Statutes. The Advocate argues further that Section 112.313(6) requires intent, not premeditation, and such intent can be formed on the spur of the moment. While Sheriff Peel may not have had the requisite corrupt intent, as found by the Hearing Officer, a case could exist where a respondent forms the requisite intent instantaneously, the Advocate argues. We find that the Advocates argument is well taken and we adopt the Hearing Officer's conclusions of law as modified with the Advocate's suggested language. Respondent is not opposed to the Advocate's exception.

Having reviewed the Recommended Order and the Advocate's Exceptions to the Hearing Officer's Recommended Order, the Commission hereby approves and adopts the findings of fact, the conclusions of law as modified, and the Hearing Officer's recommendation to the Commission that it dismiss the complaint. Accordingly, the Commission on Ethics finds that the Respondent, John Jenkins, as Captain in the Washington County Sheriff's office, did not violate Section 112.313(6), Florida Statutes, as alleged in the complaint, and hereby dismisses this complaint with the issuance of this Final Order and Public Report.

ORDERED by the State of Florida Commission on Ethics meeting in public session on Friday, July 17, 1992.

July 22, 1992

Date Rendered

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Stephen N. Zack

Chairman

YOU ARE NOTIFIED THAT YOU ARE ENTITLED, PURSUANT TO SECTION 120.68, FLORIDA STATUTES, TO JUDICIAL REVIEW OF AN ORDER WHICH ADVERSELY AFFECTS YOU. REVIEW PROCEEDINGS ARE COMMENCED BY FILING A NOTICE OF ADMINISTRATIVE APPEAL WITH THE APPROPRIATE DISTRICT COURT OF APPEAL, AND ARE CONDUCTED IN ACCORDANCE WITH THE FLORIDA RULES OF APPELLATE PROCEDURE. THE NOTICE OF ADMINISTRATIVE APPEAL MUST BE FILED WITHIN 30 DAYS OF RENDITION OF THE ORDER TO BE REVIEWED.

cc: Mr. William E. Powers, Jr. and Mr. Philip P. Quaschnick,

Attorneys for Respondent

Ms. Virlindia Doss, Commission Advocate

Mr. Timothy Hinson, Complainant