STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

 

 

IN RE:  JIMMY WHALEY            )

                                )                         CASE NO. 97-0143EC

     Respondent.                )

________________________________)

 

 

RECOMMENDED ORDER

 

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Administrative Law Judge, Carolyn Holifield, held a formal hearing in this case on March 13, 1997, in Panama City, Florida.

APPEARANCES

  For Advocate:  Eric S. Scott

                      Assistant Attorney General

                      Attorney General's Office

                      Plaza Level One, The Capitol

                      Tallahassee, Florida  32399-1050

 

For Respondent:  Gary L. Printy

                      Law Office of Gary L. Printy

                      660 East Jefferson Street

                      Tallahassee, Florida  32301

 

STATEMENT OF THE ISSUE

Whether Respondent violated Sections 112.313(2), and 112.313(6), Florida Statutes, and, if so, what penalty should be recommended.

PRELIMINARY STATEMENT


On September 4, 1996, the Florida Commission on Ethics issued an order finding probable cause to believe that Respondent Jimmy Whaley, as City Commissioner for the City of Springfield, Florida, violated Section 112.313(2), Florida Statutes, by soliciting the dismissal of a traffic citation against his son, based upon the understanding that his future actions as a City Commissioner with respect to the officer or the police department would be influenced thereby.

Additionally, the Florida Commission on Ethics found that there was probable cause to believe Respondent violated Section 112.313(6), Florida Statutes.  The case was forwarded to the Division of Administrative Hearings for assignment to an administrative law judge on or about January 14, 1997.  The final hearing was scheduled for March 13, 1997.  Before the formal hearing, the parties stipulated to facts which were admitted and required no proof at hearing.  At the final hearing, the Advocate called three witnesses:  Springfield Police Department Officer Chad Rowswell; Springfield Police Department Chief, John Sword; and Bay County Sheriff's Deputy, John Sumerall.

Respondent testified on his own behalf and called two witnesses: Springfield Police Department Retired Chief, Donahue Zigler; and Cedar Grove Police Department Chief, John Ferrick.  The parties stipulated to the introduction of two joint exhibits, both of which were admitted into evidence.  The proceeding was recorded but not transcribed.  Both parties filed proposed recommended orders.

FINDINGS OF FACT


1.  At all times pertinent to this proceeding, Respondent Jimmy Whaley, was a member of the Springfield City Commission.  He was elected to this office in September 1993, and served in that capacity continuously until September 1995.

2.  In that public position, the Respondent was subject to the requirements of Part III, Chapter 112, Florida Statutes, the Code of Ethics for Public Officers and Employees.

3.  On May 18, 1995, Manuel James Whaley III, the son of Respondent, was issued a speeding ticket in the City of Springfield by Officer Chad Rowswell for traveling 33 mph in a 20 mph speed zone.  Officer Rowswell did not recognize the Respondent's son or his son's car when he gave Respondent's son the speeding ticket.

4.  At the time the speeding ticket was issued, the Respondent's son, Manuel J. Whaley, III, was on probation for an unrelated criminal matter.

5.  Because his son was on probation, Respondent believed that the speeding ticket issued could impact his son's probationary status and result in his going to jail.  Based on this belief, Respondent asked Lieutenant Peoples to intercede on his behalf with Officer Rowswell, about reducing the Manuel Whaley III's speeding ticket to a warning.  Lieutenant Peoples contacted Officer Rowswell, but Officer Rowswell refused to reduce the ticket.

6.  Officer Rowswell was the only person who could reduce the speeding ticket he had issued to the Respondent's son.  He had thirty days within which to make his decision.


7.  A few days after Respondent's son was cited for speeding, and after Officer Rowswell refused to reduce the ticket to a warning, Respondent spoke to Chief Sword about his son's ticket.  As a general rule, Chief Sword leaves the decision of whether or not to void or reduce a ticket up to the officer that actually wrote the ticket.  During their conversation, Chief Sword told the Respondent that he would not tell Officer Rowswell to reduce the Respondent's son's speeding ticket to a warning.

8.  When the Respondent spoke to Chief Sword about the ticket Officer Rowswell gave to his son, the Respondent made it clear that he was not happy with Officer Rowswell, in particular, and the Springfield Police Department, in general.  During his meeting with Chief Sword, the Respondent's tone was intimidating and threatening.

9.  Based on Respondent's choice of words and tone of voice during his conversation with Chief Sword, the police chief believed that Respondent's official actions or judgment with regard to the Springfield Police Department would be influenced and adversely affected by Officer Rowswell's refusal to reduce the ticket to a warning.


10.  On June 7, 1995, Respondent mistakenly called Deputy John Sumerall aside to discuss the ticket issued by Officer Rowswell, thinking Sumerall was Officer Roswell.  Initially, during this meeting, Respondent's tone was threatening and intimidating.  Respondent told Officer Sumerall that he had helped him get his job and that he may need Respondent's help in the future.  During his meeting with Officer Sumerall, Respondent indicated that his official actions or judgment with regard to the Springfield Police Department and Officer Rowswell would be influenced by Officer Rowswell's failure to reduce the ticket to a warning.

11.  After his meeting with Respondent, Officer Sumerall felt that Respondent's treatment of the Springfield Police Department and Officer Rowswell would be adversely affected by Officer Rowswell's decision to not drop the speeding ticket to a warning.

12.  Based on this conversation, Officer Sumerall felt Respondent was threatening Officer Rowswell's job because he refused to reduce Respondent's son's speeding ticket.

13.  After Respondent discovered he was talking to the wrong officer, his demeanor changed and he became friendly and apologetic and asked Officer Sumerall to keep the matter to himself.

14.  Deputy Sumerall communicated the substance of Respondent's remarks to Officer Rowswell.  Although Officer Rowswell never discussed the matter with Respondent, after hearing about Respondent's confrontation with Officer Sumerall, Officer Rowswell became concerned about his job. 

15.  Respondent stated that he attempted to speak to Officer Roswell in an effort to find out why he refused to reduce the speeding ticket to a warning and to explain to the officer that in a small town, people did each other favors.  Respondent referred to this as a "working relationship".

CONCLUSIONS OF LAW


16. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this proceeding.  Section 120.57(1), Florida Statutes (1995).

17.  Section 112.322, Florida Statutes (1995), 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).

18.  The burden of proof, absent a statutory directive to the contrary, is on the party asserting the affirmative of the issue in the proceedings.  Department of Transportation v. J.W.C. Co., Inc., 396 So.2d 778 (Fla. 1st DCA 1981); Balino v. Department of Health and Rehabilitative Service, 348 So.2d 349 (Fla. 1st DCA 1977).  In this proceeding, the Commission, through its Advocate, is asserting the affirmative: that the Respondent violated Sections 112.313(2) and, 112.313(6), Florida Statutes (1995).  The Commission must establish by clear and convincing evidence the elements of Respondent's alleged violations.  Gary D. Latham v. Florida Commission on Ethics, No. 96-1224 (Fla. 1st DCA) April 23, 1997.

19.  It has been alleged that Respondent violated Section 112.313(2), Florida Statutes (1995), by soliciting the dismissal of a traffic citation against his son, based upon the understanding that his future actions as a City Commissioner with respect to the police officer and/or the police department would be influenced thereby.

20.  Section 112.313(2), Florida Statues (1995), provides:


No public officer, employee of an agency, local government attorney, candidate for nomination or election shall solicit or accept anything of value to the recipient, including a gift, loan, reward, promise of future employment, favor, or service, based upon any understanding that the vote, official action, or judgment of the public officer, employee, local government attorney, or candidate would be influenced thereby.

 

21.  In order for it to be concluded that Respondent violated Section 112.313(2), Florida Statutes, the Advocate must establish the following elements:

1.  Respondent must have been either a public officer, a public employee, local government attorney, or a candidate for nomination or election.

 

2.  Respondent must have solicited or accepted something of value to him, including a gift, loan, reward, promise of future employment, favor, or service.

 

3.  Such solicitation or acceptance must have been based upon an understanding that the Respondent's vote, official action, or judgment would be influenced thereby.

 

 

22.  The parties have stipulated that the Respondent, as a Springfield City Commissioner, was subject to the requirements of Part III, Chapter 112, Florida Statutes.

23.  To establish a violation of Section 112.313(2), Florida Statutes (1993), it must next be established that Respondent solicited or accepted something of value to him, such as a gift, loan, reward, favor, or service.


24.  In this case, it was established by clear and convincing evidence that Respondent solicited a favor, the reduction of his son's speeding ticket to a warning.  The reduction of a ticket was important to Respondent because he was concerned that the ticket might cause his son to be in violation of his probation and result in his being sent to jail.  Although Respondent never actually solicited Officer Rowswell, his solicitation of Chief Sword and Officer Sumerall satisfy this element.  The fact the Respondent mistakenly solicited Officer Sumerall instead of Officer Rowswell does not mean a solicitation did not place.

25.  Finally, to establish a violation of Section 112.313(2), Florida Statutes, it must be proven that the solicitation engaged in by the public officer was based upon an understanding that the officer's vote, official action or judgment would be influenced thereby.

26.  The evidence adduced at hearing established that Respondent's solicitation was based on an understanding that Respondent's votes, official actions or judgments with regard to the Springfield Police Department and Officer Roswell would be influenced by whether Officer Roswell reduced the speeding ticket to a warning.

27.  The Advocate for the Commission has established by clear and convincing evidence each of the requisite elements and, thus has proven that Respondent violated Section 112.313(2), Florida Statutes (1995).


28.  It is further alleged that Respondent violated Section 112.313(6), Florida Statutes (1995), by attempting to have a traffic citation against his son dismissed.

29.  Section 112.313(6), Florida Statutes (1995), provides:

MISUSE OF PUBLIC POSITION.  No public officer or employee of an agency shall corruptly use or attempt to use his or her official position or any property or resource which may be within his or her trust, or perform his official duties, to secure a special privilege, benefit, or exemption for himself, herself, or others.  This section shall not be construed to conflict with s. 104.31.

 

30.  The term "corruptly" is defined by Section 112.312(9), Florida Statutes, as follows:

"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.

 

31.  In order for it to be concluded that the Respondent violated Section 112.313(6), Florida Statutes, the Advocate must establish the following elements.

1.  The Respondent must have been a public officer, employee of a public agency, or a local government attorney.

 

2.  The Respondent must have used or attempted to use his official position or any other property or resources within his trust or perform his official duties, to secure a special privilege, benefit or exemption for himself or others.

 

3.  The Respondent must have acted corruptly, that is, with wrongful intent and for the purpose of benefiting himself or another person from some act or omission which is inconsistent with the proper performance of public duties.

 


32.  The parties have stipulated and the evidence has established that Respondent, as a Springhill City Commissioner, is subject to the requirements of Part III, Chapter 112, Florida Statutes.  Therefore, this element is proven.

33.  Based on the allegations in this case, it must next be established that Respondent used his official position to secure a special benefit for himself or others.  At hearing, it was established by clear and convincing evidence that Respondent used his official position by indicating in his meetings with Chief Sword and Officer Sumerall that his official actions or judgment with regard to the Springfield Police Department and Officer Rowswell would be influenced by Officer Roswell's refusal to reduce the ticket.

34.  These actions were taken by Respondent to secure a special privilege, the reduction of his son's speeding ticket.  The Advocate has proven this element by clear and convincing evidence.


35.  Finally, to establish a violation of Section 112.313(6), Florida Statutes, it must be established that Respondent acted with wrongful intent.  That is, Respondent must have acted with specific intent to misuse his public position.  In using his position to attempt to have his son's speeding ticket reduced to a warning, Respondent acted and spoke in a manner which evidenced his intent to misuse his official position.  Respondent's acts of threatening to use his official position to adversely impact the Springhill Police Department and/or Officer Rowswell's job, were inconsistent with the proper performance of Respondent's public duties.

36.  The Advocate has established by clear and convincing evidence each of the requisite elements to prove that Respondent violated Section 112.313(6), Florida Statutes.

RECOMMENDATION

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

RECOMMENDED that Final Order and Public Report be entered finding that Respondent, Jimmy Whaley, violated Sections 112.313(2) and 112.313(6), Florida Statutes (1995), imposing a civil penalty of $5,000, and issuing a public censure and reprimand.

DONE and ORDERED this 6th day of May, 1997, in Tallahassee, Leon County, Florida.

                      ___________________________________

                      CAROLYN S. HOLIFIELD

                      Administrative Law Judge

                      Division of Administrative Hearings

                      The DeSoto Building

                      1230 Apalachee Parkway

                      Tallahassee, Florida  32399-3060

                      (904) 488-9675   SUNCOM 278-9675

                      Fax Filing (904) 921-6847

 

                      Filed with the Clerk of the

                      Division of Administrative Hearings

                      this 6th day of May, 1997.

 

 

COPIES FURNISHED:

 

Eric Scott, Esquire

Department of Legal Affairs

Plaza Level One, The Capitol

Tallahassee, Florida  32399-1050

 

Kerrie Stillman

Complaint Coordinator


Florida Commission on Ethics

Post Office Box 15709

Tallahassee, Florida  32317-5709

 

Gary L. Printy, Esquire

660 East Jefferson Street

Tallahassee, Florida  32301

 

Bonnie Williams

Executive Director

Florida Commission on Ethics

Post Office Drawer 15709

Tallahassee, Florida  32317-5709

 

Phil Claypool

General Counsel

Florida Commission on Ethics

Post Office Drawer 15709

Tallahassee, Florida  32317-5709

 

 

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

 

All parties have the right to submit written exceptions within 15 days from the date of this recommended order.  Any exceptions to this recommended order should be filed with the agency that will issue the final order in this case.