STATE OF FLORIDA
DIVISION OF
ADMINISTRATIVE HEARINGS
In Re:
TERESA GOMILLION CASE NO. 94-2067EC
_________________________/
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 June 3, 1994, in DeFuniak Springs, Florida.
APPEARANCES
For Advocate: Michael Ingram,
Esquire
Steven Grigas, Esquire
Assistant Attorney Generals
Department of Legal Affairs, PL-01
The Capitol
Tallahassee, Florida 32399
For Respondent: E. Allan Ramey, Esquire
13 Circle Drive
Post Office Box 369
DeFuniak Springs, Florida 32433-0369
STATEMENT OF THE ISSUES
Whether Respondent, Teresa Gomillion, violated Section 112.313(6),
Florida Statutes, and, if so, what penalty should be imposed.
PRELIMINARY STATEMENT
On February 2, 1993, the Florida Commission on Ethics (Commission) filed
an Order Finding Probable Cause to believe that Respondent, Teresa Gomillion,
as an employee of the Walton County Tax Collector's Office, violated Section
112.313(6), Florida Statutes, by soliciting votes for her preferred candidate
for tax collector from the users of the tax collector's office. The case was forwarded to the Division of
Administrative Hearings on April 18, 1994, for assignment to a hearing officer.
At the final hearing the Advocate called the following witnesses: Teresa Gomillion, Pam Dyess, Pat Pollard,
Rodney Ryals, and James Engles.
Advocate's Exhibit 1 was admitted in evidence. Respondent testified in her own behalf and called the following
witnesses: Mike Stanley, Sue Carter,
and Tammy Day. At the final hearing the
parties agreed to file proposed recommended orders by July 6, 1994. On July 1, 1994, the Advocated filed a Joint
Motion for Extenstion of Time to File Proposed Recommended Orders. The motion was granted and the time for
filing proposed recommended orders was extended to July 13, 1994. The parties timely filed proposed
recommended orders. The parties'
proposed findings of fact are addressed in the Appendix to this Recommended
Order.
FINDINGS OF FACT
1. In the fall of 1992, there
were several Democratic candidates for the office of Tax Collector for Walton
County. Among the Democratic candidates
was Sue Carter who had been employed in the Walton County Tax Collector's
Office prior to resigning to run for tax collector.
2. The first Democratic primary
was held in September, 1992, resulting in a runoff primary between Sue Carter
and Sue Rushing in October, 1992. Ms.
Carter defeated Ms. Rushing. In
November, 1992, Sue Carter won the general election.
3. Respondent, Teresa Gomillion
(Gomillion), was employed in the Walton County Tax Collector's Office in
1992. Pat Pollard, Tammy Day, Patty
Lynch, and Sylvia Rushing were also employed in the tax collector's office
during the 1992 election campaign. Ms.
Lynch and Gomillion supported Ms. Carter.
Ms. Day did not support Ms. Carter.
Ms. Rushing was related to Sue Rushing, Ms. Carter's opponent. Ms. Pollard did not support any candidate
for the office of tax collector.
4. Pat Pollard's work station
was located about three feet away from Gomillion's work station. She overheard Gomillion ask a customer of
the tax collector's office for whom he was going to vote. This was the only time that Ms. Pollard
heard Gomillion talk to a customer concerning the race for tax collector.
5. Gomillion and other employees
in the tax collector's office did discuss the race for tax collector during
office hours.
6. Pam Dyess has been employed
at a car dealership in DeFuniak Springs for 16 years. During 1992, her job responsibilities required her to go to the
tax collector's office to handle the tag and title work for the
dealership. After the first primary,
Ms. Dyess went to the tax collector's office during working hours and while she
was there the subject of the first primary was discussed. Ms. Dyess stated that she had voted for
Harley Henderson. Ms. Gomillion joined
the conversation and asked Ms. Dyess why she had voted for Harley Henderson and
made some disparaging remarks about Mr. Henderson's qualifications.
7. Rodney Ryals is now and was
an employee of the City of DeFuniak Springs during the fall of 1992. During the election, Mr. Ryals spent a great
deal of time at the tax collector's office taking care of city business and
visiting with his friend Ms. Pollard.
While Ryals was at the tax collector's office Gomillion told him,
"You better vote for Sue Carter, she's the only qualified candidate."
8. Ryals had told Gomillion and
Ms. Lynch that they should not campaign on the job because it was illegal. Both women told him that if they did not
politick that they might lose their jobs.
9. Both Jack Little, the tax
collector, and Ms. Carter had advised Gomillion not to politick in the tax
collector's office.
10. Having judged the
credibility and demeanor of the witnesses, I find that Gomillion did not hand
out campaign literature while she was on the job at the tax collector's office.
CONCLUSIONS OF LAW
11. The Division of
Administrative Hearings has jurisdiction over the parties to and the subject
matter of this proceeding. Section
120.57(1), Florida Statutes. 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").
12. The burden of proof, absent
a statutory directive to the contrary, is on the party asserting the
affirmative of the issue in the proceeding.
Department of Transportation v. J.W.C. Co., Inc., 396 So.2d 778 (Fla.
1st DC 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 Gomillion violated
Section 112.313(6), Florida Statutes.
Therefore, the burden of establishing the elements of Gomillion's
alleged violation is on the Commission.
13. 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.
14. The term corruptly is
defined by Section 112.312(9), Florida Statutes, to mean:
"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.
15. 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 public duties.
16. Section 104.31(1)(a),
Florida Statutes, provides:
(1) No officer
or employee of the state, or
of any county or municipality thereof, except
as hereinafter exempted from provisions hereof shall:
(a) Use his
official authority or influence for
the purpose of interfering with an election or a
nomination of office or coercing or influencing
another person's vote or affecting the result thereof.
17. The Advocate has established
by a preponderance of the evidence that Gomillion, as an employee of the Walton
County Tax Collector's Office, is a public employee subject to the Code of
Ethics for Public Officers and Employees, Part III of Chapter 112, Florida
Statutes.
18. The Advocate has established
by a preponderance of the evidence that Gomillion performed her duties with the
tax collectors office to secure a special benefit for herself and for Sue
Carter, Gomillion's preferred candidate. While she was on duty in the tax
collector's office Gomillion told Ryals that he had better vote for Ms. Carter
because she was the only qualified candidate.
She made remarks to a customer who was at the tax collector's office on
business, disparaging the candidate for whom the customer had voted. She also asked a customer for whom he was
going to vote for tax collector. The
special benefit which Gomillion sought was votes for her preferred candidate to
secure the election for Carter and thereby securing Gomillion's continued
employment in the tax collector's
office.
19. The Advocate has established
that Gomillion's actions were done with a wrongful intent. She had been advised by Mr. Little and Ms.
Carter not to politick on the job. Mr.
Ryals had also informed Gomillion that he thought her actions were illegal and
that she should refrain from politicking while on duty in the tax collector's
office. Gomillion continued engaging in
political discussions because she thought that if someone other than Ms. Carter
were elected tax collector her job could be in jeopardy.
20. The Advocate has established
by a preponderance of the evidence that Gomillion's actions were inconsistent
with her duties as an employee of the tax collector's office. Mr. Little had expressly prohibited
politicking in the tax collector's office.
Her duties as an employee did not include asking customers for whom they
were going to vote nor did it include telling customers to vote for Ms. Carter
because she was the best candidate. Ms.
Gomillion's actions were not passive political expressions which were exempted
from the prohibitions set forth in Section 104.31(1)(a), Florida Statutes. See AGO 072-62, March 1, 1972.
21. The Advocate has established
by a preponderance of the evidence that Gomillion violated Section 112.313(6),
Florida Statutes.
22. Section 112.317(1)(b),
Florida Statutes, sets forth the following penalties which may be imposed for a
violation by an employee of the Code of Ethics for Public Officers and
Employers:
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.
7. Restitution of
any pecuniary benefits
received because of the violation committed.
8. Public censure
and reprimand.
23. It is my recommendation that
Teresa Gomillion receive a civil penalty of $500 and be publicly censured and
reprimanded.
RECOMMENDATION
Based on the foregoing Findings of Fact and Conclusions of Law, it is
RECOMMENDED that the Commission on Ethics enter a final order finding
that Teresa Gomillion violated Section 112.313(6), Florida Statutes, and
recommending a civil penalty of $500 and a public censure and reprimand.
DONE AND ENTERED this 19th day of August, 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 19th day of August, 1994.
APPENDIX TO RECOMMENDED
ORDER, CASE NO. 94-2067EC
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.
1.
Paragraphs 1-10: Accepted in
substance.
2.
Paragraph 11: Accepted to the extent that Ms. Gomillion
had solicited Mr. Ryals' vote but rejected as far as Mr.
Ryals observing Ms. Gomillion soliciting other
customers.
3.
Paragraph 12: Having judged the
credibility of the
witnesses, I find that Mr. Ryals testimony that Ms.
Gomillion handed out campaign literature not to be
credible.
4.
Paragraph 13: Accepted in
substance.
5.
Paragraph 14: Rejected as
constituting recitation of
testimony.
6.
Paragraphs 15-16: Rejected as
subordinate to the facts
actually found.
Respondent's Proposed Findings of
Fact.
1.
Paragraphs 1-2: Accepted in
substance.
2.
Paragraph 3: The first sentence
is rejected as
unnecessary. The remainder of
the paragraph is rejected
as constituting recitation of testimony.
3.
Paragraph 4: The first sentence
is accepted in
substance. The second sentence
is rejected as
constituting both recitation of testimony and argument.
4.
Paragraph 5: The first sentence
is accepted in
substance. The remainder of the
paragraph is rejected
to the extent that it implies that Ms. Gomillion
properly performed her duties.
The greater weight of
the evidence shows that Ms. Gomillion's actions were
prohibited by the tax collector and were not part of her
duties.
5.
Paragraphs 6-8: Rejected as
constituting recitation of
testimony.
6.
Paragraph 9: The first sentence is accepted in substance
except as it relates to Ms. Gomillion's solicitation of
Mr. Ryals. The remainder of the
paragraph is rejected
as unnecessary.
7.
Paragraph 10: Rejected as
unnecessary.
8.
Paragraphs 11-12: Rejected as
recitation of testimony.
9.
Paragraph 13: The first sentence
is rejected as
unnecessary. The remainder of
the paragraph is rejected
as constituting recitation of testimony.
10.
Paragraph 14: Rejected as subordinate to the facts
actually found.
11.
Paragraphs 15-16: Rejected as
constituting recitation
of testimony.
12.
Paragraph 17: Rejected as
unnecessary.
13.
Paragraphs 18-19: Rejected as
constituting recitation
of testimony.
14.
Paragraph 20: The first sentence
is rejected as
unnecessary. The remainder of
the paragraph is
rejected as constituting recitation of testimony.
15.
Paragraphs 21-22: Rejected as
constituting recitation
of testimony.
16.
Paragraph 23: The first sentence
is rejected as
constituting recitation of testimony.
The remainder of
the paragraph is rejected as subordinate to the facts
actually found.
17.
Paragraph 24: The first sentence
is rejected as
unnecessary. The remainder of
the paragraph is
rejected as constituting
recitation of testimony.
18.
Paragraph 25: The first sentence
is rejected as
constituting recitation of testimony.
The remainder of
the paragraph is accepted in substance.
COPIES FURNISHED:
Carrie Stillman
Complaint Coordinator
Commission on Ethics
Post Office Box 15709
Tallahassee, Florida 32317-5709
Michael E. Ingram
Assistant Attorney General
Department of Legal Affairs, PL-01
The Capitol
Tallahassee, Florida 32399
E. Allan Ramey, Esquire
13 Circle Drive
Post Office Box 369
Defuniak Springs, Florida 32433-0369
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
Tallahassee, 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.