BEFORE THE INVESTIGATIVE PANEL OF THE FLORIDA JUDICIAL QUALIFICATIONS COMMISSION STATE OF FLORIDA \, NOTICE OF FORMAL CHARGES

Transcription

1 BEFORE THE INVESTIGATIVE PANEL OF THE FLORIDA JUDICIAL QUALIFICATIONS COMMISSION STATE OF FLORIDA \, INQUIRY CONCERNING A JUDGE, PAUL M. HAWKES, NO \ \ , \ " \ \ \ (PI -~ \ \ -..:.;-} ',:,...<'\. ;..) ~...' NOTICE OF FORMAL CHARGES TO: The Honorable Paul M. Hawkes, Jr. First District Court of Appeal 2000 Drayton Drive Tallahassee, FL YOU ARE HEREBY NOTIFIED that the Investigative Panel of the Florida Judicial Qualifications Commission, at its meeting of April 29, 2011, by a vote of the majority of its members, pursuant to Rule 6(f) of the Rules of the Florida Judicial Qualifications Commission and Article V, Section 12(b) of the Constitution of the State of Florida, finds that probable cause exists for formal proceedings to be instituted against you. These charges arise in the following context: 1. The Florida Legislature, in response to a perceived need to expand the existing First District Court of Appeal courthouse in the fiscal year appropriated $100,000 to examine the need for expansion of the courthouse. In 2006 the Legislature appropriated $1,800,000 as fixed capital outlay costs for expansion of the First District Court of Appeal and directed that the funds be DMS managed. In 2007, the Legislature appropriated $7,900, for a First District Court of Appeal expansion. 1

2 2. In 2007, the Legislature appropriated to the Department of Management Services spending authority for fixed capital outlay funds up to $33.5 million to issue bonds for the site development and construction of a First District Court of Appeal facility on a portion of parcel 3 at the Capital Circle Office Center. The Legislature required that the bond proceeds be placed in the public facilities financing trust fund and that the buildings be constructed using Leadership in Energy and Environmental Design standards for construction. The clear intent of the Legislature was that the entire project would be controlled and managed by the OMS, with the attendant protection and budgetary restraint that the OMS is mandated to bring to the construction of such projects. See and , Fla. Stat. (2010). 3. The Investigative Panel has concluded that probable cause exists that your actions, as hereinafter set forth, violate the Code of Judicial Conduct. After you became involved with the lobbying for funding of the new courthouse, you also took a lead role in the building of the new courthouse for the First District Court of Appeal. In doing so you exerted your authority as a member of the court building committee and later as Chief Judge. In your interactions with OMS and its employees you failed to act with patience, dignity, and courteousness that is expected of judicial officers at all times. In fact some OMS employees expressed that in their interactions with you, they felt as is if you were "beating up" on them. For example, when the project director raised legitimate financial concerns about the project and the appearance of the building, you went over his head to the Secretary of the Department and had him removed from the 2

3 project. When OMS personnel raised budgetary concerns with you, you brushed them off with statements that you would simply return to the Florida Legislature and obtain more money. Your actions were contrary to the legislative intention expressed in the Senate Subcommittee on Criminal and Civil Justice hearing held February 6, Because of the prudent financial management of the court's marshal, Don Brannon, at the end of a fiscal year during the construction of the new courthouse, there was approximately $120,000 unspent in the operating account. At your urging, the Court decided on a divided vote to use that money to buy all new desks, credenzas and furnishings for the court's law clerks, a furniture order for approximately 45 desks. The marshal was troubled because the cost of the law clerks' new desks exceeded that which the marshal had in the past customarily spent on law clerks' furniture. The amount was more in line with the cost associated with judges' furniture. One reason was that you wanted the new furniture to meet the "color palette" at the new courthouse. You selected furniture from Executive Office Furniture in Tallahassee, through its salesman, Stan Nettles. The particular furniture involved was manufactured in Indiana. A representative of the Indiana furniture company came to the court and made an offer to the building committee to send select members of the committee to visit the factory in Indiana. No such visit occurred before you made the decision to place the order. Once you made the decision, the marshal and deputy marshal took Mr. Nettles to your office so you could make the final decisions as to how the desks would be configured. Once those decisions were made, you asked Mr. 3

4 Nettles if the trip to Indiana was still available. Mr. Nettles was dumbfounded by the request, but he asked how many judges would go. You told him it would be you and no other judges and that you would take your son. Nettles told you that he would check with the Indiana furniture company and relay their response. Nettles later received word that you had decided to take your brother as well as your son, and the offer was relayed to Nettles that you would pay for your brother's expenses. Nettles reported this to the court's marshal. The then-chief Judge interviewed Nettles and then informed you that no personnel from the First DCA would make such a trip to Indiana. Later, when you were running for Chief Judge, the trip to Indiana became an issue in your campaign. You went to Marshal Brannon's office, closed his door, and tried to intimidate him into changing his story about the trip. When you failed to get the marshal to change his story, you left the marshal's office "in a pretty big huff." During the meeting with Brannon, you were neither dignified, nor patient, nor courteous. Instead, you were coercive and intimidating. After that episode between you and Marshal Brannon, the relationship between you and Marshal Brannon deteriorated, and once you were elected chief judge designate, Marshal Brannon realized that your coercive and intimidating leadership style meant that Marshal Brannon would not be able to work with you on the Court. On December 17, 2008, two weeks before you were to become chief judge, Marshal Brannon submitted his written resignation to then-chief Judge Browning, with an effective date of March 31, Giving his notice of resignation at that time was a 4

5 financial detriment to Marshal Brannon because it cut short his five year participation in the DROP program, but he did so because he knew he would not be able to work under your intimidation and coercion. When you became chief judge, just as Marshal Brannon had anticipated, you froze him out, isolated him and humiliated him during the January 1 to March 31, 2009, period leading to his formal retirement. You also shut down any business relationship that existed between your court and Stan Nettles and Executive Office Furniture in retaliation for their involvement with the proposed trip to Indiana. You later falsely stated to the deputy marshal that no such trip was ever under consideration. 5. After the episode described in paragraph 4 above, in which you had a closed door meeting with Marshal Don Brannon in an effort to coerce him into changing his story about the Indiana trip, your relationship to the deputy marshal also deteriorated. You threatened the deputy marshal, you barked at her, you were discourteous to her, you were not dignified in the way you treated her, and you were impatient. When the current deputy marshal was promoted into that job, you did not want her in that position, but you were overruled by the thenchief judge and the then-marshal. Nevertheless, when you became chief judge, you saw to it that the deputy marshal did not get the raise she would normally receive with that promotion. 6. After Don Brannon retired as marshal on March 31, 2009, the court hired a new marshal, Steve Nevels, from Atlanta, Georgia. The new marshal took office on May 28, The marshal's office is responsible for the budget 5

6 for the court, and when there is a court conference of First DCA judges, the marshal reports to the judges regarding the budget. Because of your desire to implement the e-filing system at the court, you became overly involved in the routine court budgetary process. In an effort to gain this objective, when the new Marshal arrived for duty on May 28, 2009, you usurped the budgeting function of the Marshal's office, deprived the Marshal of full participation in it and you personally made the periodic budget reports to your fellow judges. You manipulated the court's budget and you misled your fellow judges by not disclosing to them what you were doing with the budget. Your financial manipulations made it difficult for the Marshal's office to manage the budget, and your relationship with personnel in the Marshal's office was characterized by intimidation and the barking of orders at them. You attempted to require the Deputy Marshal to doctor the budget by omitting information from it, but she refused. On one occasion you demanded that the deputy marshal buy you a bottle of vinegar. The purpose was to clean your personal coffee pot. The deputy marshal refused, but you demanded that you be shown in writing why she, could not buy you a bottle of vinegar. She showed you that she was not authorized to purchase personal items for individuals. Even though she refused to buy you a bottle of vinegar, you continued to mention it to her and to harp on her refusal to buy you the vinegar. 7. After Marshal Don Brannon retired under duress in March, 2009, but before the new marshal arrived on May 28, 2009, you directed the deputy 6

7 marshal to destroy an entire file cabinet of documents. The file cabinet was a file in which the former marshal, Don Brannon, had retained historical budget information about the First District Court of Appeal as well as documents containing information about the construction of the new courthouse, including: Legislative budget requests (LBRs). Documents concerning the air conditioning system in the old building. The contractor had promised that the new system would actually pay for itself in electrical savings. The project was coordinated with the Comptroller's Office. The contractor had to make regular reports about savings to the court. The Marshal's correspondence with the First DCA judges and with the Florida Supreme Court. Information regarding the construction of the new courthouse, with particular reference to the selection process for the architect and the contractor. Documents regarding the new courthouse building committee that the Marshal felt should be retained. The deputy marshal resisted the destruction of these files, but you insisted, overruled her, and the files were destroyed. You therefore directed the destruction of public records, which included documents relevant to this investigation and other investigations related to the construction of the new courthouse. 8. On September 2, 2005, the First District Court of Appeal decided Olive v. Maas, 911 So. 2d 837 (Fla. 1st DCA 2005). On remand from the First DCA to the trial court, the trial court entered further orders that the parties again 7

8 appealed to the First DCA, which on May 12, 2006, certified certain questions to the Florida Supreme Court. After the First District certified the Olive case to the Florida Supreme Court, you assigned your w clerk, Renee Hill, a taxpayer-paid employee of the 11 First District Court of Appeal, to assist your son in preparing the brief for the appellant, Roger Maas, in the Florida Supreme Court. On September 25, 2008, the Florida Supreme Court decided the case of Maas v. Olive, 992 So. 2d 196 (Fla. 2008). Your use of your law clerk in this fashion was a misuse of a state asset for the benefit of your son, and lit was completely improper for you to assign your law clerk, who was on the court at the time your court certified the case to the Florida Supreme Court, to assist one of the parties in preparing a partisan brief in the Florida Supreme Court on a case that sought to overturn an opinion authored by your court. 9. You conduct and behavior in the foregoing matters demonstrated a pattern of conduct that can only be characterized as intemperate, impatient, undignified and discourteous. Your willingness to circumvent policy practice and people to gain your objectives without regard to the propriety of the means employed demonstrates an inability to distinguish between the proper and improper use of the prestige of your judicial office. A judge is obligated to act at all times in a manner that promotes the public confidence in the judiciary. Your conduct relative to the construction of the new First DCA courthouse has brought the entire judiciary of the State of Florida into disrepute, has inflicted 8

9 substantial harm upon the entire state court system and has therefore demeaned the entire court system of the State of Florida. These acts, if they occurred as alleged, violated the Code of Judicial Conduct as follows: Canon 1 (impairing the confidence of the citizens of the state in the integrity of the judicial system and in you as a judge); Canon 2A (respect for and compliance with the law); 3B (4) (patient dignified and courteous to those with whom a judge deals in an official capacity); 3B (5) (manifest bias through words or conduct; 3B (7) (according all parties the right to be heard); and 3B (8) (disposing of all judicial matters fairly, promptly and efficiently). The foregoing conduct, if proven as alleged, would constitute conduct unbecoming a member of the judiciary; would demonstrate your unfitness to hold the office of judge; and would warrant discipline, including but not limited to reprimand, fine, suspension with or without pay, lawyer discipline or your removal from your judicial office. You are hereby notified of your right to file a written answer to these charges within twenty (20) days of service of this notice upon you. The original of your response and all subsequent pleadings must be filed with the Clerk of the Florida Supreme Court, in accordance with the Court's requirements. Copies of your response should be served on the undersigned Special Counsel, F. Wallace Pope, Special Counsel, Johnson, Pope, Bokor, Ruppel & Burns, P.O. Box 1368, Clearwater, Florida 33757, Michael L. Schneider, General Counsel for the Judicial Qualifications Commission, 1110 Thomasville Road, Tallahassee, 9

10 Florida 32303, and Lauri Waldman Ross, Counsel to the Hearing Panel, Ross & Girten, 9130 S. Dadeland Boulevard, Suite 1612, Miami, Florida JUDICIAL QUALIFICATIONS COMMISSI N B. F. AL ACE POPE, JR. FBN #: JOHNSON, POPE, BOKOR, RUPPEL & BURNS, LLP P.O. Box 1368 Clearwater, FL fax Special Counsel for Florida Judicial Qualifications Commission and Michael L. Schneider General Counsel Florida Bar No Thomasville Road Tallahassee, FL (850)

11 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing Notice of Investigation has been furnished by certified Mail # to the Honorable Paul M. Hawkes, Jr., First District Court of Appeal, 2000 Drayton Drive, Tallahassee, FL and by Federal Express to Kenneth W. Sukhia, Esq., Sukhia Law Group PLC, 2846-B Remington Green Cir., Tallahassee, FL ~ day of May,