STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

In re FRANK RYSAVY,

Respondent. CASE NO. 93-6539EC

___________________/

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Susan B. Kirkland, held a formal hearing in this case on July 28, 1994, in Fort Lauderdale, Florida.

APPEARANCES

For Advocate: Marty Moore, Esquire

Attorney General's Office

PL-01, The Capitol

Tallahassee, Florida 32399-1050

For Respondent: Frank J. Scott, Esquire

Sam Goren, Esquire

Josias & Goren, P.A.

3099 East Commercial Boulevard, Suite 200

Fort Lauderdale, Florida 33308

STATEMENT OF THE ISSUES

Whether Respondent, as Chairman of the Hillsboro Inlet Improvement and Maintenance District in Broward County, violated Section 112.313(6), Florida Statutes, and, if so, what penalty should be imposed.

PRELIMINARY STATEMENT

On December 8, 1992, the Florida Commission on Ethics issued an Order Finding Probable Cause to believe that Respondent, Frank Rysavy, as chairman of the Hillsboro Inlet Improvement and Maintenance District (District) in Broward County, violated Section 112.313(6), Florida Statutes, by arranging for the employment of his son by the District, and that he violated Section 112.313 (6), Florida Statutes, by pressuring Captain DeCou and members of the District to rehire his son and to make payments to his son. The case was forwarded to the Division of Administrative Hearings for assignment to a hearing officer. The final hearing was scheduled for March 23 and 24, 1994. Respondent requested a continuance which was granted and the hearing was rescheduled for July 28 and 29, 1994.

At the final hearing, Joint Exhibits 1-20 were admitted into evidence. The Advocate called Voorhies "Whitey" DeCou. Respondent testified in his own behalf and presented the following witnesses: Andrew Potter, Albert Hughes, Jack Holland, and Raymond McAllister.

The parties stipulated to the facts listed in paragraphs 1-9 of Section E of the Joint Prehearing Stipulations. The parties also stipulated that the Respondent was a public officer. The Advocate conceded that there was insufficient evidence on which the Hearing Officer could find Respondent guilty of Allegation II of the Administrative Complaint, that is Respondent violated Section 112.313(6), Florida Statutes, by pressuring Captain DeCou and members of the District Board to rehire his son and to make payments to his son.

At the final hearing, the parties agreed to file proposed recommended orders within ten days of the filing of the transcript. The transcript was filed on August 29, 1994. The Advocate and the Respondent timely filed their proposed recommended orders. The parties' findings of fact are addressed in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. The Hillsboro Inlet Improvement and Maintenance District (District) is responsible for the improvement and maintenance of the channel at the Hillsboro Inlet from the AIA bridge over to the ocean. The District is governed by a board comprised of seven appointed members who serve without remuneration and generally meet once a month to set District policy. Historically, most of the day-to-day work of the Hillsboro Inlet Improvement and Maintenance Board (Board) has been performed by the chairman and vice chairman. The District employs a dredging crew to perform the improvements and maintenance of the Hillsboro Inlet channel.

2. Respondent, Frank Rysavy (Rysavy), has served as chairman of the District from at least January, 1987 through the date of the final hearing. As chairman he served as liaison between the District and governmental entities.

3. Andrew Potter was a member of the Board from 1972 to March, 1990. Shortly after he was appointed to the Board, he was appointed as vice chairman and remained in that office until he left the Board in 1990. As vice chairman, he was in charge of personnel and budgets and was the liaison between the Board and the dredging crew.

4. Captain Voohries "Whitey" DeCou was employed as the dredge captain from June 1974 until May 1992. The other members of the dredging crew reported directly to Captain DeCou, and based on the organizational chart, Captain DeCou reported directly to the vice chairman of the Board.

5. The Board does not vote on the hiring of personnel. Andrew Potter was the Board member who would normally be in charge for making decisions concerning the hiring of personnel. Captain DeCou would explain the job functions to the applicants and give them job applications to complete, but he did not hire employees for the dredge crew. I find Captain DeCou's testimony that Rysavy had also participated at times in the interviewing and hiring of personnel to be credible.

6. In the summer of 1988, William "Scotty" Washington gave notice that he was quitting his job as the diesel mechanic of the dredging crew. Shortly after Captain DeCou notified the Board of Mr. Washington's resignation, Charles Rysavy, the son of Rysavy, approached Captain DeCou concerning the vacant diesel mechanic position. Having judged the credibility of the witnesses, I find that Charles Rysavy told DeCou that he had been advised by his uncle that there was a vacant position for a diesel mechanic and identified his uncle as Rysavy.

7. Captain DeCou showed Charles Rysavy the engines and, in response to an inquiry from Charles Rysavy, advised him that the major repairs to the engines were done by a private company. DeCou told Charles Rysavy that the job did not require any particular license or certification. Charles Rysavy visited Captain DeCou a second time, they looked at the machinery again, and Captain DeCou explained the duties of the job and gave Charles Rysavy an application. Captain DeCou discussed Charles Rysavy's interest in the job with Rysavy and told Rysavy that he thought that Charles Rysavy could work if he wanted to do so. Charles Rysavy returned a third time to the job site to discuss the job with Captain DeCou.

8. Although the personnel form which was admitted in evidence as Joint Exhibit 17 showed that Charles Rysavy was hired for the position of dredge operator, having judged the credibility of the witnesses, it is clear that the greater weight of the evidence shows that Charles Rysavy sought the job which had been vacated by Scotty Washington and that Scotty Washington's position had been viewed by the Board and Captain DeCou as that of a diesel mechanic, regardless of the lack of a position title which designated Mr. Washington as a diesel mechanic.

9. Having judged the credibility of the witnesses I find that during a telephone conversation between Captain DeCou and Rysavy after Charles Rysavy's last visit with Captain DeCou, Rysavy told Captain DeCou, "Why don't you call Charles, tell him to give his employer two weeks notice and tell him to report to work after his two weeks notice are given." Captain DeCou told Rysavy that he thought that Rysavy should advise his son that he was hired, but Rysavy told Captain DeCou to tell Charles Rysavy that he was hired because Rysavy wanted his son to understand that he was going to be working for Captain DeCou and not Rysavy. He also advised Captain Decou that Charles Rysavy was to be treated like the rest of the crew members and was not to be given special favors.

10. Captain DeCou called Charles Rysavy and offered him the job, which he accepted. Captain DeCou told him to give two weeks notice to his employer and to start to work on September 12, 1988, which Charles Rysavy did.

11. Rysavy called two Board members and told them that his son had been hired by Captain DeCou and that Captain DeCou had been advised not to give his son special treatment. He did not advise them of his directive to DeCou to hire his son.

12. By memorandum dated September 3, 1988, Rysavy notified the members of the Board that Captain DeCou had advised him that he planned to hire his son. He did not advise the Board that he had directed Captain DeCou to call Charles Rysavy and offer him the job. Rysavy emphasized that his son was not to be given any special treatment.

13. Although Mr. Potter's responsibilities with the Board included participation in the hiring of personnel for the dredging crew, no direct evidence was presented to establish that Mr. Potter did participate in the hiring of Charles Rysavy and the testimony of Captain DeCou and Mr. Potter did establish that Mr. Potter did not participate in the hiring of Charles Rysavy.

14. At the time Charles Rysavy was hired, the Board did not have an anti-nepotism policy. Such a policy was approved by the Board in September, 1989.

15. It was the understanding of the majority of the Board, and of Captain DeCou that Charles Rysavy had been hired as the diesel mechanic. I find that the testimony of both Rysavy and his son that Charles Rysavy was not hired as a diesel mechanic not to be credible.

16. Charles Rysavy's performance on the job was satisfactory in the beginning of his employment but began to deteriorate. In June, 1989, Captain DeCou recommended to the Board that Charles Rysavy's employment with the District be terminated. The Board confirmed Charles Rysavy's termination "due to insufficient experience as needed for the position of diesel mechanic." At the same Board meeting, the Board decided that advertisements should be placed for a diesel mechanic to replace Charles Rysavy.

CONCLUSIONS OF LAW

17. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding. Section 120.57(1), Florida Statutes.

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

19. The burden of proof, absent a statutory directive to the contrary, is on the party asserting the affirmative of the issue of the proceeding. 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 349 (Fla. 1st DCA 1977). In this proceeding, it is the Commission through its Advocate, that is asserting the affirmative: that the Respondent violated Section 112.313(6), Florida Statutes. Therefore, the burden of establishing by a preponderance of the evidence the elements of the Respondent's violations is on the Commission.

20. Section 112.313(6), Florida Statutes, provides as follows:

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.

21. The term corruptly is defined by Section 112.312(7), Florida Statutes (1987,) to mean:

[D]one 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.

22. In order to establish a violation of Section 112.313(6), Florida Statutes, the following elements must be proved:

1. The Respondent must be either a public

officer or a public employee.

2. The Respondent must have used or attempted

to use his official position or property or

resources within his trust, or performed his

official duties.

3. The Respondent's actions in element two

must have been done with an intent to secure a

special privilege, benefit, or exemption for

himself or others.

4. The Respondent's action and intent in

elements two and three must have been done

corruptly, i.e.,

a. done with a wrongful intent, and

b. done for the purpose of benefiting

from some act or omission which is inconsistent

with the proper performance of his public duties.

23. The parties have stipulated that Rysavy was a public officer subject to Chapter 112, Part III, Florida Statutes.

24. The Advocate has established by a preponderance of the evidence that when Rysavy advised Captain DeCou to tell Charles Rysavy to give two weeks notice at his current job, he was doing so in his capacity as Chairman of the District and as such he did use his position as Chairman of the District to secure a job with the District for his son, Charles Rysavy.

25. The special benefit which Rysavy sought to secure was a job with the District for his son, Charles Rysavy.

26. Rysavy used his position to secure a job for his son with a wrongful intent. When Captain DeCou told Rysavy that Rysavy should notify his son that he was being hired, Rysavy told DeCou that DeCou should tell Charles Rysavy that he was hired. When Rysavy telephoned the two Board members and told them that Captain DeCou had hired his son, he did not mention that he had advised Captain DeCou to hire Charles Rysavy. When Rysavy sent the Board members a memorandum telling them of the pending employment of his son, he couched the memorandum so that it appeared that it was Captain DeCou's idea to hire Charles Rysavy and not Rysavy's.

27. Rysavy's actions were inconsistent with his duties as Chairman of the Board. Section 116.111, Florida Statutes (1987), prohibited public officials from advocating for appointment or employment of a relative, which includes the son of the public official, to a position in the agency in which he is serving or over which he exercises jurisdiction or control. For the purposes of Section 116.111, a public official was defined as an officer who has the authority to appoint or employ individuals or to recommend individuals for appointment or employment in connection with employment in the agency. Rysavy was prohibited by Section 116.111 from hiring his son to a position on the dredging crew and from advocating that his son be hired and as such his actions in telling Captain DeCou to hire Charles Rysavy were inconsistent with the proper performance of his duties as Chairman of the District.

28. The Advocate has established by a preponderance of the evidence that Rysavy violated Section 112.313(6), Florida Statutes, by arranging for the employment of his son with the District.

29. The Advocate has failed to establish by a preponderance of the evidence that Rysavy violated Section 112.313(6), Florida Statutes, by pressuring Captain DeCou and members of the District to rehire his son and to make payments to his son.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is

RECOMMENDED that a Final Order and Public Report be entered finding that the Respondent, Frank Rysavy, violated Section 112.313(6), Florida Statutes, by arranging for the employment of his son by the District, finding that the Respondent did not violate Section 112.313(6), Florida Statutes, by pressuring Captain DeCou and members of the District to rehire his son and to make payments to his son, imposing a civil penalty of $1,000, and issuing a public censure and reprimand.

DONE AND ENTERED this 28th day of September, 1994, in Tallahassee, Leon County, Florida.

___________________________________

SUSAN B. KIRKLAND

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 28th day of September, 1994.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-6539EC

To comply with the requirements of Section 120.59(2), Florida Statutes (1993), the following rulings are made on the parties' proposed findings of fact:

Advocate's Proposed Findings of Fact.

Section I

1. Paragraphs 1-6: Accepted in substance.

2. Paragraph 7: Rejected as constituting a conclusion of

law.

3. Paragraphs 8-9: Rejected as unnecessary.

Section II

4. Paragraphs 1-4: Accepted in substance.

5. Paragraph 5: Rejected as subordinate to the facts

actually found.

6. Paragraph 6: The first sentence is accepted in

substance. The second sentence is rejected as

unnecessary. The last sentence is rejected as

constituting argument.

7. Paragraphs 7-8: Accepted in substance.

8. Paragraph 9: Rejected as constituting argument.

9. Paragraphs 10-11: Rejected as subordinate to the facts

actually found.

10. Paragraph 12: Accepted in substance.

11. Paragraph 13: Rejected as constituting argument.

12. Paragraph 15-17: Accepted in substance.

13. Paragraphs 18-19: Rejected as subordinate to the facts

actually found.

14. Paragraph 20: Accepted in substance.

15. Paragraph 21: The first sentence is accepted in

substance. The remainder of the paragraph is rejected

as constituting argument.

Respondent's Proposed Findings of Fact.

1. Paragraphs 1-7: Accepted in substance.

2. Paragraphs 8-12: Rejected as subordinate to the facts

actually found.

3. Paragraph 13: The first sentence is accepted in

substance to the extent that there was no official

designation of a position of diesel mechanic but

rejected to the extent that it infers that no position

on the dredging crew was viewed by the Board and the

dredging crew as that of a diesel mechanic. The second

sentence is accepted in substance to the extent it

applies to major repairs but rejected to the extent that

it encompasses minor repairs. The last sentence is

accepted in substance.

4. Paragraph 14: The first sentence is accepted in

substance. The second sentence is rejected as not

supported by the greater weight of the evidence.

5. Paragraph 15: The first sentence is accepted in

substance. The second sentence is rejected to the

extent that Charles Rysavy told Captain DeCou his

"uncle" told him that there was an opening on the

dredging crew.

6. Paragraph 16: Having judged the credibility of the

witnesses, it is rejected as not supported by the

greater weight of the evidence.

7. Paragraph 17: The first sentence is accepted in

substance. The second sentence is rejected as not

supported by competent, substantial evidence.

8. Paragraph 18: Rejected as subordinate to the facts

actually found.

9. Paragraph 19: The last sentence is rejected as

constituting argument. The remainder of the sentence

is rejected as unnecessary.

10. Paragraph 20: The first sentence is accepted in

substance to the extent that Rysavy did notify the two

board members that his son was hired but rejected to

the extent that it implies that it was Captain DeCou's

decision to hire Charles Rysavy. The second sentence is

accepted in substance to the extent that Rysavy sent a

memorandum stating that it was Captain DeCou's plan to

hire Charles Rysavy, but rejected to the extent that

the memorandum accurately reflects what took place in

the hiring of Charles Rysavy. The third sentence is

rejected as subordinate to the facts actually found.

The fourth sentence is accepted in substance as

constituting what Rysavy advised Captain DeCou. The

fifth sentence is accepted in substance to the extent

that Captain DeCou advised Rysavy that he would not

give special treatment to Charles Rysavy but rejected

as to the portion which states that DeCou advised

Rysavy that Charles Rysavy was eminently qualified and

would have to earn his stripes.

11. Paragraph 21: Rejected as subordinate to the facts

actually found.

12. Paragraphs 22-23: Accepted in substance.

13. Paragraph 24: Rejected as not supported by the greater

weight of the evidence.

14. Paragraph 25: Rejected as subordinate to the facts

actually found.

15. Paragraph 26: Accepted in substance.

16. Paragraph 27: Rejected as mere recitation of

testimony.

17. Paragraph 28: Rejected as constituting argument.

18. Paragraph 29: The first sentence is rejected as

subordinate to the facts actually found. The second

sentence is rejected as not supported by the greater

weight of the evidence.

19. Paragraph 30: Rejected as mere recitation of testimony.

20. Paragraphs 31-32: Rejected as subordinate to the facts

actually found.

21. Paragraphs 33-36: Rejected as constituting argument.

22. Paragraph 37: Accepted to the extent that the Board

confirmed Captain DeCou's recommendation to terminate

the employment of Charles Rysavy.

23. Paragraph 38: Rejected as constituting argument.

24. Paragraph 39: Rejected as subordinate to the facts

actually found. The last portion of the last sentence

is also rejected as not supported by the greater weight

of the evidence to the extent that it may imply that

Charles Rysavy was not seeking the position of diesel

mechanic.

25. Paragraphs 40-41: Rejected as constituting argument.

26. Paragraph 42: Rejected as subordinate to the facts

actually found.

27. Paragraph 43: Rejected as constituting argument.

28. Paragraph 44: Rejected as subordinate to the facts

actually found.

29. Paragraphs 45-46: Rejected as constituting argument.

30. Paragraph 47-48: Rejected as subordinate to the facts

actually found.

31. Paragraphs 49-50: Rejected as constituting argument.

32. Paragraphs 51-53: Rejected as mere recitation of

testimony.

33. Paragraph 54: Rejected as constituting argument.

34. Paragraph 55: Rejected as unnecessary.

35. Paragraph 56: Accepted in substance.

36. Paragraphs 57-58: Having judged the credibility of the

witnesses, it is rejected as not supported by the

greater weight of the evidence.

37. Paragraph 59: Rejected as unnecessary.

38. Paragraph 60: Accepted in substance.

39. Paragraphs 61-62: Having judged the credibility of the

witnesses, I reject the paragraphs as not supported by

the greater weight of the evidence.

40. Paragraph 63: Rejected as subordinate to the facts

actually found.

41. Paragraph 64: Accepted in substance.

42. Paragraph 65: Accepted in substance.

43. Paragraphs 66-71: Rejected as unnecessary.

44. Paragraph 72: The first three sentences are rejected

as unnecessary. The last sentence is accepted in

substance but rejected to the extent that it implies

that the vice chairman was the only Board member

who would be involved in the hiring of personnel.

45. Paragraphs 73-75: Rejected as unnecessary.

46. Paragraphs 76-81: Rejected as subordinate to the facts

actually found.

47. Paragraph 82: Rejected as mere recitation of

testimony.

48. Paragraphs 83-84: Rejected as unnecessary.

49. Paragraph 85: Rejected as mere recitation of

testimony.

50. Paragraph 86: Accepted to the extent that there was a

telephone conversation and that Rysavy told Dr.

McAllister that Captain DeCou had hired Charles Rysavy

but rejected to the extent that it implies that it was

Captain DeCou's decision to hire Charles Rysavy.

51. Paragraph 87: Rejected as subordinate to the facts

actually.

52. Paragraph 88: Rejected as irrelevant.

53. Paragraph 89: The first sentence is rejected as mere

recitation of testimony and subordinate to the facts

actually found. The second sentence is rejected as

subordinate to the facts actually found. The last

sentence is rejected as constituting argument.

54. Paragraph 90: Rejected as irrelevant.

55. Paragraph 91: Rejected as constituting argument.

56. Paragraph 92: Rejected as subordinate to the facts

actually found and irrelevant.

57. Paragraph 93: The first sentence is rejected as

irrelevant. The second sentence is rejected as mere

recitation of testimony and constituting argument.

58. Paragraphs 94-96: Rejected as unnecessary.

59. Paragraph 97: Accepted in substance as to the roles of

the chairman and vice chairman of the Board.

60. Paragraph 98: Rejected as mere recitation of

testimony.

61. Paragraph 99: Rejected as unnecessary.

62. Paragraph 100: Rejected as unnecessary.

63. Paragraph 101: Rejected as mere recitation of

testimony.

64. Paragraph 102: The first sentence is rejected as

constituting argument. The second sentence is rejected

as recitation of testimony.

65. Paragraph 103: Rejected as recitation of testimony.

COPIES FURNISHED:

Marty E. Moore

Advocate For the Florida

Commission on Ethics

Office of the Attorney General

The Capitol, PL-01

Tallahassee, Florida 32399-1050

Scott J. Frank, Esquire

Suite 200

3099 East Commercial Boulevard

Fort Lauderdale, Florida 33308

Bonnie Williams

Executive Director

Florida Commission On Ethics

Post Office Drawer 15709

Tallahassee, Florida 32317-5709

Phil Claypool, Esquire

General Counsel

Ethics Commission

2822 Remington Green Circle, Suite 101

Post Office Drawer 15709

Tallahasee, Florida 32317-5709

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 ten 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.