The Executive Director of the Commission on Ethics determined that the Complaint was legally sufficient and ordered a preliminary investigation for a probable cause determination as to whether Respondent violated Section 112.313 (6) Florida Statutes. The Report of Investigation was released on December 6, 2019.
Respondent is alleged to have violated Section 112.313 (6) Florida Statutes, by permitting a Town of White Springs firefighter to make personal or unauthorized use of a fire department vehicle owned by the Town.
ANALYSIS- ALLEGATION ONE
Respondent was the Town Manager for White Springs (Town) from September 9, 2015 until her resignation effective November 8, 2019, (ROI 1,4, Exhibit A). Respondent’s contract was renewed by a three to two vote at the December 11, 2018 Town Council meeting (ROI 11). However, in September 2019, the composition of the Council changed prompting Respondent’s resignation (ROI 12).
The complaint alleges that Respondent misused her public position by permitting Town firefighter Andrew Greene to make personal or unauthorized use of a Town Fire Department vehicle (ROI 1). Andrew Greene presently serves as a part-time Assistant Fire Chief for the Town (ROI 5). He became a volunteer firefighter for the Town in 2005 and was promoted to the Assistant Fire Chief position sometime prior to 2012 (ROI 5) from 2005 until January 31, 2019, he was a full time employee in the Town’s Water and Waste-Water Department and was promoted to head Water and Waste-Water Operator, also known as the Utilities Director, in 2012 (ROI 5). to 2012. Then Town Manager Bob Farley assigned Greene a 2005 Chevrolet S-10 pick-up tyruck to use as a take-home vehicle. (ROI 3,5,8) During 2018, the Town traded the S-10 for a new Ford Explorer which Respondent then assigned to Greene. (ROI 8).
The Town has no written policies, procedures or litigation specifying the use of Town vehicles, but according to Respondent, all employees who have take-home vehicles are aware of the Town’s unwritten policy that (generally) prohibits the use of these vehicles for personal reasons. (ROI7). Greene was aware that the use of the Town’s vehicles is restricted to Town business only. (ROI 8) However, Green acknowledged that occasionally he would stop to pick up personal items at Walmart or other such establishment, while driving home in the Town’s vehicle. (ROI 8).
Complainant alleges that Greene drove the Town’s vehicle to his wife’s home in Tampa and the Town paid for the fuel and maintenance. (ROI 4) Respondent has no knowledge of this or any other alleged personal uses by Greene and said that she never authorized any such use of the Town’s vehicle. (ROI 7). However, Respondent stated that Greene’s admitted use of the vehicle to stop by Walmart on the way home did not violate the Town’s unwritten policy. (ROI 9). Greene said the allegation that he drove the vehicle to Tampa “is not true at all”. (ROI 8).
The use of a public vehicle for personal purposes constitutes the use of property or resources within the officer’s or employee’s trust. The use of the vehicle for personal errands, trips or family vacations would, without question, constitute a special benefit or privilege for Greene and his family.
In the absence of a written policy established by the Town, Respondent references a well known unwritten policy which permits an apparent exception to personal use of the vehicle, such as admitted to by Greene. Respondent’s assertion of a policy was not confirmed by others. If in fact true, Greene’s actions were not inconsistent with the proper performance of his public duties and, thus, Respondent was not negligent in her public duties to ensure proper use of the Town’s property and resources (e.g., vehicle, maintenance, and gas).
However, Section 112.313 (6) also requires a determination of intent which must be examined by looking at all relevant circumstances. As stated by Respondent “the Town” has permitted employees who work in public safety and “on-call_ positions to utilize take-home vehicles for many years.” (ROI 6) Presumably, the objectives in providing take-home vehicles is to serve a public purpose but none was provided.
The only evidence presented for Greene’s personal use of Town-owned vehicle was his own admission that he occasionally stopped at an establishment to pick-up something on his way home. The vehicle was dedicated to Greene’s use at work with Respondent’s authorization by the unwritten policy for Greene to make stops for personal purposes at Walmart on his commute to and from work. While there was a personal benefit for Greene to drive the vehicle, there was a public purpose as well. The District Court of Appeal has recognized that Section 112.313 (6) will not be violated in situations where there is a valid public purpose for a public officer’s action, notwithstanding that the action provides an incidental private benefit to the officer. See Blackburn v. State Commission on Ethics, 589 So. 2d 431, 435-436 (Fla 1st DCA 1991). On the basis of the evidence presented in this case, Greene’s occasional personal use of a public vehicle benefited him incidentally, while presumed overall purpose primarily fulfilled the Town’s public objectives. Accordingly, Greene’s occasional personal stops were permitted and did not result in Respondent’s violation of Section 112.313(6).
Therefore, based on the evidence before the Commission, I recommend that the Commission find no probable cause to believe that Respondent violated Section 112.313(6) Florida Statute.
(Respondent advised that the Town has permitted six employees who work in public safety and “on call” positions to utilize take-home vehicles for years. (ROI 6) Greene qualified under this policy as the Town’s Utilities Director. (ROI 6).
ANALYSIS – ALLEGATION TWO
The complaint alleges that Respondent misused her public position by directint the Town’s Code Enforcement Officer to write a letter to the owner of a mobile home park demanding alterations to the park’s privately-owned driveway (ROI 1). The Town practices, a Council/Manager form of government where the Town Council sets the policy and the Town Manager (Respondent) manages the day-to-day operations of the Town. (ROI 4). John Davis served as a full time police officer for the Town for approximately one year and the Town’s Code Enforcement Office for approximately five months in 2018. (ROI 15). At the relevant time, Officer Davis rented a home in the Pine Manor Mobile Home Park (Park). ROI 16).
Officer Davis resigned from his position at the June 12, 2018 Town Council meeting, citing in part:
You (Respondent) and Vice Mayor Brown on several occasions requested me to write a letter to the owner of the trailer park I reside in, demanding their privately-owned driveway be fixed. I made you aware of the fact that such action may affect my living situation and the issue does not fall under the violations of the town’s ordinances. Also as code enforcement officer, it is my duty to inform you that a direct attempt to provoke the owner to comply with personal gain is unreasonable and unethical.. When I told you my concerns, you still wanted me to write the letter. (ROI 13)
Officer Davis advised that the Respondent sent him an e-mail and contacted him on several other occasions informing him that he needed to talk to, or make contact with, the owner of the Park regarding the poor condition of the Park’s privately owned driveway. (ROI 18). Officer Davis said the driveway is “rough” but it did not violate any Town ordinances or state laws, allowed safe and easy passage of emergency vehicles and was not degraded to the point where he could have issued an enforceable citation. (ROI 16).
He had a vague recollection of speaking with Town Councilmember Tonja Brown on one occasion about the driveway, yet he was unsure of when or where the conversation took place, paid very little attention to her during the conversation and could not recall whether she directed him to cite or take some other type of enforcement action against the Park owner (ROI 17). Since he was aware that relatives of Councilmember Brown lived in the park, he felt that she was pressuring him into taking action. (ROI 17).
Councilmember Brown said she had a chance meeting with Officer Davis in a local Dollar General store and advised him that Park residents had complained to her about the driveway. (ROI 14. She was aware that Officer Davis lived in the Park and wanted him to understand that the residents may confront him, if they discover that he was the Town’s Code Enforcement Officer (ROI 14). She also informed him that she was forwarding the complaints To Respondent and suggested that he discuss the matter with her since she was his direct supervisor. (ROI 14).
Officer Davis said he felt pressured by Respondent who insisted he write a letter to the Parks owner about the condition of the driveway. (ROI 18) He felt like there would be “issues” if he continued to challenge Respondent’s directive, so he resigned. (ROI 18). Respondent acknowledged that Councilmember Brown informed her of the problem with the Park’s driveway (ROI 19, 20) However, she could not recall if she sent an e-mail to Officer Davis, but recalled that she discussed the matter with him on one occasion to ascertain whether the condition of the driveway violated any Town ordinances and to seek his opinion as to whether the Town could take any sort of action or remedy the situation. (ROI 19). She said when Officer Davis indicated he did not want to contact the Park owner because he lived in the Park, either she or Officer Davis suggested that she write the letter herself (ROI 20). Ultimately, no letter was written (ROI 18, 20)
Respondent stated that speaking with Officer Davis about the driveway was not taken to benefit or maintain favor with Councilmember Brown and that she would have done the same thing, if any other Councilmember had asked her to look into a matter (ROI 19).
Around this time, Respondent informed Officer Davis that he was to bring presenting routine code enforcement reports during the Town Council meetings.Officer Davis believed this was an attempt on the Respondent’s part to pressure him to take enforcement action against the Park owner or to punish him for not taking enforcement action. (ROI 21) Respondent stated that it was not her idea but rather Councilmember Walter McKenzie’s idea since the police department, the fire department and the Town Manager (Respondent) routinely provide reports at the Council meetings. (ROI 21).
Councilmember McKenzie sait it was possibly his idea although he could not specifically recall. (ROI 22) However, he added that Respondent “never took kindly” to anyone telling her how to do her job (ROI 22). At the meeting where Officer Davis was to give his first code enforcement report, he instead read his resignation letter. (ROI 21).
Officer Davis served under the direction and supervisIon of Respondent pursuant to Section 3.05 of the Town’s Charter. Respondent’s responsibilities include seeing that the law, Charter provisions and acts of the Town Council are subject to enforcement and faithfully executed. Town Charter, Section 3.02(s) Respondent’s instructions to write a code enforcement letter and give activity reports at the Council meeting were not outside of her managerial duties, arbitrary, or unreasonable given these facts. The notion that Officer Davis disagreed with Respondent’s orders did not make them improper, unethical or corrupt so as to violate the Code of Ethics.
Therefore, based on the evidence before the Commission, I recommend that the Commission find no probable cause to believe that Respondent violated Section 11.313 (6) Florida Statutes.
ANALYSIS – ALLEGATION THREE
The complaint alleges that respondent misused her public position by refusing to place a citizen’s complaint on the Town council’s meeting agenda. After Officer Davis resigned Complainant filed a “Citizen Complaint against Councilmember Brown alleging that she directed Officer Davis to issue a Citation to the Park’s owner concerning the Park’s Driveway in violation of the Town Charter. (ROI 23). The complaint was not placed on a Town Council agenda for discussion and resolution by Respondent, allegedly to provide a special benefit to Councilmember Brown, Respondent’s political ally. (ROI 23). Complainant alleges that his complaint was handled differently from a complaint filed against another Councilmember, Helen Miller, which was placed on the agenda some three months earlier. (ROI 23, 24, Exhibit B, Amended Complaint pp. C7-10) The complaint against Councilmember Miller prompted a “Forfeiture Hearing” that resulted in her removal from office. (ROI 26, Exhibit B).
The Town’s Agenda Application” form authoizes the town Manager (Respondent) to prepare the Council meeting agendas. (ROI 30, Exhibit C). A complainant/petitioner is advised that “Local rules of Procedure to appear before the Town Council of the Town of White Springs requires all citizens or employees request for an agenda item to be in writing, signed by petitioner and presented to the Town Manager for consideration before being placed upon the agenda”. (ROI 30, Exhibit C)
There are no other written polices or procedures regarding preparation of Council meeting agendas. (ROI 29). Respondent is responsible for preparing the agenda for each Council meeting and she has the sole authority to determine which items will be placed on the agenda. (ROI 29). Upon receipt of the complaint, it was Respondent’s practice to place a copy in each Councilmembers’ mailbox, as well as scan and e-mail a copy to each member. (ROI 29). She then places the item on the agenda, if a Councilmember instructs her to do so, otherwise she determines whether the complaint warrant’s the Council’s consideration. (ROI 29). After ample opportunity to request it be placed on the agenda, no Councilmember decided to make such a request. (ROI 33)
Complainant notified each Councilmember of the complaint he filed against Councilmember Brown “sent emails twice to Council members and four times to Tebo (respondent) stating his desire to handle this complaint (against Councilmember Brown) exactly like Mrs. Miller’s action.” ROI 32). The complaint against Former Councilmember Miller was “vastly different” from the single allegation filed against Councilmember Brown. (ROI24, 25, 26, 27). Responded had firsthand knowledge that Miller violated the Town’s Charter on multiple occasions and some of the allegations were based on information provided by the Town’s auditor (ROI 24, 26, 27, Exhibit B).
Respondent determined during her initial review of the complaint that the complaint against Councilmember Brown did not merit further consideration by the Town Council nor did a Councilmember instruct her to place it on the agenda (ROI 29, 33)
According to Respondent, Complainant and his wife, “have filed an exorbitant amount of citizen complaints with various Town Managers, as well as numerous lawsuits against the Town” over the past 20 years. (ROI 31) Their “complaints always were without merit”. (ROI 31). She said that she handled this complaint exactly the same way she has handled other similar complaints. (ROI 31). Councilmember McKenzie confirmed that Complainant and his wife file so many complaints with the Town, in so many different ways, it is impossible to keep up with wnen and how he receives them. (ROI 34)
According to the Town Charter, Respondent is the chief administratore officer and solely charged with making recommendations to the Council regarding the agenda. Town Charter, Sections 3.02 (i) and 501 (h). Because no Councilmember chose to have the complaint heard, Respondent used her discretion to not include it on the agenda. There is no evidence that the Respondent abused her discretion in this matter.
Therefore based on the evidence before the Commission, I recommend that the Commission find no probable cause to believe that Respondent violated Section 112.313 (6) Florida Statutes.
It is my recommendation that:
There is no probable cause to believe that Respondent violated Section 112.313(6) Florida Statutes, by permitting a Town of White Springs firefighter to make personal or unauthorized use of a fire department vehicle owned by the Town.
There is no probable cause to believe that Respondent violated Section 112.313 (6) Florida Statutes, by directing the Town’s Code Enforcement Officer to write a letter to the owner of a mobile home park demanding alterations to the park’s privately-owned driveway.
There is no probable cause to believe that Respondent violated Section 112.313(6) Florida Statues, by declining to place a citizen’s complaint on the Town Council’s meeting agenda.