STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
In Re BERNARD HART, )
)
Respondent, ) CASE NO. 91-1890EC
) COMPLAINT NO. 90-31
)
)
)
RECOMMENDED ORDER
Pursuant to written notice a formal hearing was held in this case before Larry J. Sartin, a duly designated Hearing Officer of the Division of Administrative Hearings, on June 4, 1991, in Fort Lauderdale, Florida.
APPEARANCES
The Advocate: Virlindia Doss
Craig B. Willis
Assistant Attorneys General Department of Legal Affairs The Capitol, Suite 1601
Tallahassee, Florida 32399-1050
For Respondent: Harry Boreth, Esquire
Lloyd Glasser, Esquire GLASSER & BORETH
8751 West Broward Boulevard Plantation, Florida 33324
STATEMENT OF THE ISSUES
Whether the Respondent, Bernard Hart, violated Section 112.313(4), Florida Statutes, by accepting free cable television service from a company holding a franchise with the City of Tamarac, Florida?
Whether the Respondent violated Section 112.313(6), Florida Statutes, by using his official position to obtain such free cable television services?
Whether the Respondent violated Section 111.011, Florida Statutes (1987), by failing to disclose such free cable television service?
PRELIMINARY STATEMENT
On or about February 20, 1990, a Complaint was filed with the Florida Commission on Ethics (hereinafter referred to as the "Commission"). The Complaint contained allegations of misconduct by Bernard Hart, the Respondent in this case. Based upon a review of the Complaint against the Respondent, the Commission issued a Determination of Investigative Jurisdiction and Order to Investigate on April 20, 1990, ordering the staff of the Commission to conduct a preliminary investigation into whether the Respondent violated Sections 111.011, 112.313(4) and 112.313(6), Florida Statutes.
Following the Commission's investigation of the Respondent, a Report of Investigation was issued on August 1, 1990. Based upon the Complaint and the Report of Investigation, an Advocate for the Commission issued an Advocate's Recommendation on September 17, 1990. The Advocate determined that there was probable cause to believe the Respondent violated Sections 111.011, 112.313(4) and 112.313(6), Florida Statutes.
Based upon the Report of Investigation and the recommendation of the Advocate, the Commission issued an Order Finding Probable Cause on October 24, 1990. The Commission ordered that a public hearing be conducted.
By letter dated March 22, 1991, the Commission referred this matter to the Division of Administrative Hearings and, in accordance with Rules 34-5.010 and 34-5.014, Florida Administrative Code, requested that the public hearing on the Complaint against the Respondent be conducted by the Division of Administrative Hearings.
The formal hearing of this case was scheduled for June 4, 1991, in the City of Tamarac, Broward County, Florida. Prior to the formal hearing the Respondent filed a Motion to Change Venue. That Motion was granted and the location of the hearing was changed to Fort Lauderdale, Broward County, Florida, on April 25, 1991.
On May 24, 1991, the Respondent filed a Motion for Summary Judgment. The Motion for Summary Judgment was denied by Order entered May 31, 1991.
At the formal hearing the Advocate presented the testimony of Robert Steinert, Daniel J. Olmetti, Sydney M. Stein and Walter W. Falck. The Advocate also offered six exhibits. The exhibits were marked as "Advocate's" exhibits and were accepted into evidence. The Advocate's exhibits included the deposition testimony of the Respondent and Daniel J. Olmetti. Pursuant to an agreement of the Respondent and the Advocate, the Advocate filed the deposition testimony of Helen Massaro subsequent to the conclusion of the formal hearing. Ms. Massaro's deposition has been marked as Advocate's exhibit 7 and is accepted into evidence.
The Respondent testified and presented the testimony of Mitchell Ceasar.
The Respondent also offered one exhibit, consisting of six cassette tapes. The Respondent's exhibit was marked as "Respondent's" exhibit one and was accepted into evidence.
At the conclusion of the formal hearing the parties were told that they could file proposed recommended orders in this case before the undersigned entered a recommended order. The parties were told that proposed orders were to be filed on the later of July 8, 1991, or ten (10) days after the filing of a transcript of the formal hearing, if one was ordered. The parties were also told that the filing, on or before July 8, 1991, of an appropriate notice that the Respondent had filed an action in federal or state court to require that one of the Advocate's witnesses, Robert Steinert, answer two questions he refused to answer during the formal hearing would act to automatically toll the time for filing proposed recommended orders.
Subsequent to the conclusion of the formal hearing the parties decided to order and file a transcript of the formal hearing. A copy of the transcript was received by the Respondent on July 16, 1991. The transcript was filed on July 19, 1991. No action to force Mr. Steinert to answer the questions he had
refused to answer was taken by the Respondent prior to July 8, 1991. Therefore, pursuant to the instructions to the parties at the conclusion of the formal hearing, proposed recommended orders were due on or before July 29, 1991.
On July 22, 1991, the Respondent filed a Notice of Intention to File a Complaint for Declaratory Judgment in Federal District Court, Motion for Clarification of Time Deadlines Pursuant to Rulings of Hearing Officer at Hearing On June 4, 1991, and Motion for Extension of Time to File Complaint for Declaratory Judgment. A motion hearing was conducted by telephone on July 26, 1991, to consider the motions.
On August 5, 1991, an Order was entered memorializing rulings on the pleadings filed by the Respondent on July 22, 1991: the Motion for Clarification was granted; the Motion for Extension of Time was denied; and the time to file proposed recommended orders was extended from July 29, 1991, to August 5, 1991.
The parties did file proposed recommended orders on August 5, 1991. The proposed recommended orders contain proposed findings of fact. A ruling on each proposed finding of fact has been made either directly or indirectly in this Recommended Order or the proposed finding of fact has been accepted or rejected in the Appendix which is attached hereto.
FINDINGS OF FACT
General.
The Respondent, Bernard Hart, was elected Mayor of the City of Tamarac (hereinafter referred to as "Tamarac"), Broward County, Florida, in March, 1986. The Respondent was the Mayor of Tamarac at all times pertinent to the Complaint at issue in this proceeding.
The Respondent was sworn in as Mayor of Tamarac on April 26, 1986.
Prior to holding office as Mayor of Tamarac, the Respondent had never held any public elective office.
The Respondent served as Mayor of Tamarac for approximately two years until March, 1988.
When the Respondent served as Mayor of Tamarac, the position was a part-time position and the Respondent was paid $90.00 a week.
The Respondent is approximately 80 years of age.
The Respondent does not now hold public office.
Cable Television Services in The City of Tamarac.
During the term of the Respondent's office as Mayor of Tamarac cable television services in Tamarac were provided pursuant to a franchise granted from Tamarac.
From June, 1983, until February, 1988, the franchise for the cable television system in Tamarac was held by American Cable Systems of Florida, Ltd. (hereinafter referred to as "American Cable").
In approximately February, 1988, Continental Cablevision, Inc. (hereinafter referred to as "Continental"), acquired control of American Cable and took over the management of cable television services in Tamarac.
American Cable's and Continental's Free Cable Television Services.
During all times relevant to this proceeding, it was the policy of American Cable and Continental (hereinafter jointly referred to as the "Cable Companies"), to provide free cable service to public officials in the areas the Cable Companies served, including Tamarac.
Free cable television services were provided to public officials by the Cable Companies only if requested by the public official.
During the time that the Respondent served as Mayor of Tamarac, public officials other than the Respondent, including some in Broward County, received free cable television services from the Cable Companies.
Any public official that requested free cable television service from the Cable Companies was requested to "monitor" the service he or she received. The request to monitor, however, was not the real reason why the free cable service was provided to the public official.
The Cable Companies did not expect any public official to report to the Cable Companies or expect that the Cable Companies would gain any useful information from any report. The request to monitor, when made, was made to make the public official feel more comfortable about getting a free service.
Monitoring cable television services would not provide a great deal of useful information to the Cable Companies because the picture quality received at one location would not necessarily reflect the quality of the picture received at other locations.
The reason that the Cable Companies provided free cable television services to public officials was described as "good will." It was assumed that providing free cable television services to public officials "couldn't hurt".
Although the weight of the evidence failed to prove that any public official, including the Respondent, agreed to vote on any matter favorably to the Cable Companies or otherwise use their official position (or the Respondent's position) to benefit the Cable Companies, the free cable television services were provided by the Cable Companies in the hope that public officials, including the Respondent, would be favorably inclined to the Cable Companies. Free cable television services were provided to public officials to influence them to look favorably on the Cable Companies.
The free cable television services provided by the Cable Companies to public officials were generally not available to persons, who were not public officials. Free cable television services were, however, provided to officials of some condominium associations and employees of the Cable Companies.
As a general rule, the Cable Companies did not solicit, offer, or invite public officials to take free cable television services. The free cable services were only provided if the public official requested the services.
American Cable did offer free services to some public officials in the "western part of Broward County in 1986". Tamarac is in the western part of
Broward County. The weight of the evidence, however, failed to prove if the Respondent or any other official of Tamarac was approached by the Cable Companies and offered free cable television services.
The Cable Companies have also provided free cable television services in municipal buildings, such as police departments, fire stations and city halls.
When the Respondent took office as Mayor in 1986, free cable television services were being provided by American Cable to the Mayor's office in the Tamarac City Hall.
Walter Falck, the Mayor of Tamarac from March, 1976, though March, 1984, had the cable outlet moved into the Mayor's office in the Tamarac City Hall.
Mayor Falck did not, however, review cable services when he received a complaint about the service from a constituent. The Mayor referred all complaints to the Tamarac City Manager to handle.
Free Cable Television Services Provided to the Respondent.
On April 12, 1986, cable television was installed by American Cable in the Respondent's home.
From April 12, 1986, until January 30, 1990, the Respondent received basic cable television service, pay channels other than an adult channel, and remote control from the Cable Companies.
The cable television services received by the Respondent from the Cable Companies during and after his term as Mayor of Tamarac were received without any charge to, or the payment by, the Respondent.
The Respondent did not request that the free cable television services be disconnected or that he be charged for the services at any time while he was Mayor of Tamarac or when he left office in March, 1988.
During late 1989, or early 1990, an employee of Continental was reviewing a list of persons who were receiving free cable television services. The employee noticed the Respondent's name on the list. The employee knew that the Respondent was no longer a public official. Therefore, the Respondent was informed that he would have to begin paying for the cable television services he was receiving in order to continue receiving the services. The Respondent requested that the service be disconnected.
The free cable television services the Respondent received from the Cable Companies were terminated on January 30, 1990, after he indicated he did not want to pay for the services and requested that they be disconnected.
In light of the policy of the Cable Companies that free cable television services were provided only upon a request of a public official, it is concluded that the Respondent requested, directly or indirectly, that the free cable television services be provided to him.
Pending Cable Television Service Rate Increase.
Prior to the Respondent's election as Mayor of Tamarac, American Cable had requested that Tamarac approve a rate increase.
Because of the number of complaints about the services provided by American Cable, the requested rate increase was tabled for six months.
American Cable's rate increase request was still pending when the Respondent took office as Mayor of Tamarac and when the Respondent was first provided with free cable television services by American Cable.
Subsequent to the Respondent becoming Mayor of Tamarac, the American Cable rate increase request was approved. On May 14, 1986, on first reading the rate increase request was approved unanimously. On second reading the rate increase request was approved 4-1.
Both readings of the American Cable rate increase request occurred after the Respondent began receiving free cable television services from American Cable. The Respondent voted in favor of the American Cable rate increase request on both readings. The Respondent's vote was the last vote cast.
The American Cable increase in rate was contingent upon certain outstanding problems being corrected by July 1, 1986.
The rate increase raised the rates charged in Tamarac to the middle of the rates charged by America Cable.
The weight of the evidence failed to prove that the Respondent voted in favor of the American Cable rate increase in 1986, in exchange for the free cable television services provided to him by American Cable.
In January, 1987, Tamarac lost the right to regulate the rates that Cable Companies charged. Municipalities, however, still had the right to grant franchises to operate cable television systems within their jurisdiction after January, 1987.
The Respondent's Reason for Accepting Free Cable Television Services.
Mr. Falck, the former Mayor of Tamarac, had received numerous complaints from residents of Tamarac about the quality of cable television services in the area.
When the Respondent became Mayor in 1986, the Respondent also received complaints from his constituents about cable television services in Tamarac.
The Respondent received complaints prior to the approval of American Cable's rate increase.
After becoming Mayor, the Respondent had the cable television service in the Mayor's office in City Hall removed.
The Respondent was in the Mayor's office until approximately noon each day. The Respondent removed the cable television hookup from the Mayor's office because he did not want to spend the time he spent in the Mayor's office monitoring cable television.
The Respondent reported complaints that he received while serving as Mayor of Tamarac to the City Manager. He did not call the Cable Companies directly and report any complaints or problems with the cable television service he was aware of.
Other Tamarac officials, including former Mayor Falck, Helen Massaro, who served on the Tamarac City Council in 1972, and from 1974 to 1988, and Sydney Stein, who served on the Tamarac City Council from 1984 until 1988, reported complaints they received about cable television services to the City Manager to handle.
The Respondent testified during the formal hearing that he accepted the free cable television services while he was Mayor of Tamarac because he "considered it a function that [he] was doing on behalf of the citizens of the city." Transcript of June 4, 1991, Formal Hearing, page 115, lines 13-14. The Respondent indicated that he accepted the free services so that he could "monitor" the service when he received constituent complaints. The Respondent's testimony is rejected because of the following facts:
The Respondent was aware that reception varied from location to location;
The Respondent never contacted the Cable Companies directly to report any results of his purported monitoring;
The Respondent removed the cable hookup from the Mayor's office. Therefore, the Respondent was not able to perform his "monitoring" service during the part of each day that he was in the Mayor's office;
The Respondent continued to receive the free cable television services after he was no longer the Mayor of Tamarac and his need to "monitor" the services ended.
The Respondent also testified that Sydney Stein, a member of the Tamarac City Council when the Respondent became Mayor, suggested that he accept the free cable television service so that the Respondent would be able to determine whether the complaints were valid. The Respondent indicated that Mr. Stein offered to make the necessary arrangements with American Cable for the free service to be provided to the Respondent. Based upon the weight of the evidence, it is concluded that Mr. Stein did not make the arrangements with American Cable for the Respondent's free cable services. Even if the evidence had proved that Mr. Stein requested that American Cable provide the Respondent with free cable television services, he would have done so on behalf of, and as agent for, the Respondent.
Based upon the fact that the Cable Companies provided free cable television services to public officials to influence them to look favorably on the Cable Companies, it is concluded that the Respondent was provided free cable television services by the Cable Companies during his term as Mayor of Tamarac to influence him in his official capacity.
The weight of the evidence also proved that the Respondent should have known why he was being provided free cable television services. The Respondent had not received free cable television services prior to being elected Mayor of Tamarac. The Respondent should have been aware, therefore, that cable television services were not generally available to members of the public without charge. Immediately after his election he was provided the free cable
service. He should have realized that the free service was being provided to him because he had become the Mayor of Tamarac. Shortly thereafter the Respondent was required to vote on a rate increase request from American Cable, the company that first provided him with the free cable service. The Respondent should have had no doubt at that time why he was being provided free cable television services.
Value of the Free Cable Television Services.
The retail value of the free cable television services that the Respondent received between April 12, 1986, and March of 1988, was $1,649.43.
The retail value of the free cable television services that the Respondent received for the entire period of time that free services were provided to the Respondent was $3,416.46.
Although the Respondent received part of the $3,416.46 worth of free cable television services after his term as Mayor of Tamarac expired, all of the free services were received as a direct result of his position as Mayor of Tamarac.
The cost to the Cable Companies for the free services provided to the Respondent was relatively insignificant.
Failure to Report.
The Respondent did not report the value of the free cable television services he received while Mayor of Tamarac pursuant to Chapter 111, Florida Statutes (1987).
CONCLUSIONS OF LAW
Jurisdiction, Applicable Statutes and Burden of Proof.
Jurisdiction and Applicable Statutes.
The Division of Administrative Hearings has jurisdiction, except as discussed, infra, of the parties to and the subject matter of this proceeding. Section 120.57(1), Florida Statutes (1989).
The Respondent has been charged with violating Sections 111.011, 112.313(4) and 112.313(6), Florida Statutes. The appropriate statutes to be applied in this case are found in Florida Statutes 1985 (applicable to 1986), and 1987 (applicable to 1987 and 1988). What constitutes a violation pursuant to the substantive provisions of the statutory law at issue in this proceeding has not changed in any material manner, however, since 1986. Section 111.011, Florida Statutes (1987), has been renumbered as Section 112.3148, Florida Statutes (1989).
Although the substantive violation that the Respondent has been charged with under Section 111.011, Florida Statutes, has not changed, the authority to enforce, and the penalty for violating, Section 111.011, Florida Statutes, has changed since the Respondent's alleged violation of this provision. Section 111.011, Florida Statutes (1985 and 1987), provided the following with regard to the manner of enforcing Section 111.011, Florida Statutes, and the appropriate penalties under that Section:
(3) Any person who voted in the election at which the elected public officer was last elected may bring a civil action to enforce the provisions of this section. As a condition precedent, the person shall give 30 days' notice to such officer of his intention to file suit. Unless such officer complies with the provisions of this section within such 30-day period, a cause of action shall be deemed to have accrued. The court costs, expenses, and reasonable attorney fees of any person having reasonable cause to bring such
civil action shall be allowed as costs against the public officer.
(4)(a) If any elected public officer knowingly or willfully fails to comply with this section, he is guilty of a second degree misdemeanor in office, punishable as provided in ss. 775.082 and 775.083.
(b) The failure of any public officer to comply with this section is a ground for removal from office, impeachment, or expulsion from the Senate or House of Representatives, as the case may be.
. . . .
There was no authority under Chapter 111, Florida Statutes, for the Commission to enforce the requirements of that chapter or for the Commission to impose any penalty for a violation of Section 111.011, Florida Statutes.
The Commission's authority, under the law in effect at the time that the Respondent is alleged to have violated Section 111.011, Florida Statutes, was provided by Section 112.320, Florida Statutes (1987):
There is created a Commission on Ethics, the purpose of which is to serve as guardian of the standards of conduct for the officers and employees of the state, and of a county, city, or other political subdivision of the state, as defined in this part.
The Commission's duties and powers were provided under Section 112.322, Florida Statutes (1987). Under Sections 112.320 and 112.322, Florida Statutes, the Commission was assigned the responsibility for enforcing Chapter 112, Florida Statutes. The Commission was not given any authority to enforce the provisions of Section 111.011, Florida Statutes.
In 1989, the Florida Legislature enacted Chapter 89-380, Laws of Florida. Pursuant to Section 3 of Chapter 89-380, Section 111.011, Florida Statutes (1987), was repealed. Pursuant to Section 2 of Chapter 89-380, Section
111.011 was enacted as Section 112.3148, Florida Statutes (1989). These changes were effective during 1989 when Chapter 89-380, Laws of Florida, became effective, which was after the offense the Respondent is alleged to have committed took place. It was not until 1989 that the Commission gained jurisdiction over alleged violations of Section 112.3148, Florida Statutes, which incorporates the prohibition of former Section 111.011, Florida Statutes.
It is a well established principle that statutes are to operate prospectively absent an expression of the Legislature to the contrary. Walker & LaBerge, Inc. v. Halligan, 344 So.2d 239 (Fla. 1977); and Hector v. Department of Professional Regulation, 504 So.2d 469 (Fla. 1st DCA 1987). The Legislature did not give the Commission authority to enforce the provisions of Section 112.3148, Florida Statutes, until 1989. Therefore, it is concluded that the Commission, and consequently, the undersigned, do not have jurisdiction over alleged violations of Section 111.011, Florida Statutes. Consequently, the Commission and the undersigned do not have jurisdiction to prosecute the Respondent's alleged violation of Section 111.011, Florida Statutes.
2. Burden of Proof.
The burden of proof, absent a statutory directive to the contrary, is on the party asserting the affirmative of the issue of the proceeding. Antel v. Department of Professional Regulation, 522 So.2d 1056 (Fla. 5th DCA 1988); 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 the Advocate, that is asserting the affirmative: that the Respondent violated the Code of Ethics for Public Officers and Employees. Therefore, the burden of proving the elements of the Respondent's alleged violation was on the Commission.
The Respondent's Violation of Section 112.313(4), Florida Statutes.
Section 112.313(4), Florida Statutes, provides:
(4) UNAUTHORIZED COMPENSATION.--No public officer or employee of an agency or his spouse or minor child shall, at any time, accept any compensation, payment, or thing of value when such public officer or employee knows, or, with the exercise of reasonable care, should know, that it was given to influence a vote
or other action in which the officer or employee was expected to participate in his official capacity.
In order to conclude that the Respondent violated Section 112.313(4), Florida Statutes, the Advocate must have proved the following elements of the alleged violation:
The Respondent must have been a public officer or employee of an agency; and
The Respondent (or his spouse or minor child) must have accepted compensation, payment or some thing of value which was:
Accepted by the Respondent with actual knowledge that the compensation, payment or thing of value was given to influence a vote or other action in which the Respondent was expected to participate in his official capacity; or
Accepted by the Respondent when he should have known (with the exercise of due diligence) that the compensation, payment or
thing of value was given to influence a vote or other action in which the Respondent was expected to participate in his official capacity.
1. The First Element: Public Officer or Public Employee.
Section 112.313(1), Florida Statutes, defines the terms "public officer" to include "any person elected . . . to hold office in any agency . . .
." An "agency" is defined in Section 112.312(2), Florida Statutes, to include "any state, regional, county, local, or municipal government entity of this state "
The evidence proved that the Respondent was elected to, and did, hold the office of Mayor of Tamarac, a municipal government in the State of Florida. The Respondent was, therefore, a "public officer" as those terms are defined in Section 112.313(1), Florida Statutes, from March, 1986, to March, 1988.
2. The Second Element: Acceptance of Compensation, Payment, or Thing of Value.
The second element of a violation of Section 112.313(4), Florida Statutes, requires proof of several facts. First, it must be proved that the Respondent (or his spouse or minor children) received "compensation, payment, or thing of value". The weight of the evidence proved this part of the second element. The Respondent received a "thing of value" when he received free cable television services during his term as Mayor of Tamarac.
Secondly, it must be proved that the thing of value was provided to the Respondent to influence his vote or other action in which the Respondent was expected to participate in his official capacity as Mayor of Tamarac. The weight of the evidence proved that the Respondent was required to vote on a proposed rate increase for American Cable immediately after he was first provided with the free cable television service by American Cable. The Respondent was to vote, and did vote, in his official capacity as a public officer. The evidence also proved that the Respondent, in his capacity as a public officer, retained the responsibility to participate in rate changes or decisions concerning the franchising of cable companies by Tamarac during the period of time he received free cable television services and while he was Mayor of Tamarac.
Finally, it must be proved that the Respondent either had actual knowledge of why the free cable television services were given to him or should have known why the free cable television services were given to him. The evidence proved that, although the Respondent may not have had actual knowledge, the Respondent should have known that he was being provided free cable television services to influence his vote on the pending rate increase and future rate or franchise decisions in which the Respondent was expected to participate in his official capacity as Mayor of Tamarac.
The Respondent has argued that the evidence in this case did not prove the second element because the evidence failed to establish that
"(1) there was any exchange of a vote for complimentary cable services, or (2) that the Respondent ever intended that the complimentary cable service would influence a
vote. Moreover, it affirmatively appears that the understanding was that the Respondent would monitor cable quality, and that, at most, the complimentary cable was a gesture
of goodwill.
The Respondent's assertion that the evidence failed to prove that there was any specific agreement that he was being providing free cable television services or that the Respondent intended to receive the service to influence a vote is correct. Section 112.313(4), Florida Statutes, does not require, however, that there be an actual agreement, that the intended purpose of the gift (to influence) be achieved or that the Respondent "intended" that the gift was to influence his vote. What is required is that the donor of the free service, the Cable Companies, had the requisite intent of influencing the Respondent when the Cable Companies gave him the free cable television services and that the Respondent either knew that was why the free service was being provided or should have known. The evidence proved that the Cable Companies did have the requisite intent. The evidence also proved that the Respondent should have been aware of that intent.
The Respondent has also argued that the evidence failed to prove that he should have known that the free cable television services were being provided to influence his vote on the pending rate increase and future rate or franchise decisions in which the Respondent was expected to participate in his official capacity as Mayor of Tamarac. In support of this argument the Respondent has cited 15 alleged facts on pages 12-14 of the Respondent's proposed recommended order. Essentially, those alleged facts suggest that the Respondent was requested to take, and accepted, the free service so that he could monitor complaints. The weight of the evidence failed to support such a conclusion.
Finally, the Respondent has cited four opinions of the Commission in support of his position. The essential facts involved in those opinions are distinguishable from the facts in this case.
The Respondent's Violation of Section 112.313(6), Florida Statutes.
Section 112.313(6), Florida Statutes, provides:
(6) MISUSE OF PUBLIC POSITION.--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.
A violation of Section 112.313(6), Florida Statutes, requires proof of the following elements:
The Respondent must be either a public officer or a public employee.
The Respondent must have used or attempted to use his official position or property or resources within his trust, or performed his official duties:
Corruptly; and
With an intent to secure a special privilege, benefit or exemption for himself or others.
1. The First Element: Public Officer or Public Employee.
76. As discussed, supra, the Respondent was a public officer. Therefore, the first element of a violation of Section 112.313(6), Florida Statutes, has been proved.
2. The Second Element: Use of Official Position or Property or Resources.
The second element of a violation of Section 112.313(6), Florida Statutes, has also been proved. The evidence proved that the Respondent used his official position with the intent of securing a special privilege, benefit or exemption for himself or others: the Respondent, in his position as Mayor of Tamarac, requested and received free cable television services from the Cable Companies.
The weight of the evidence also proved that the Respondent used his official position "corruptly." The term "corruptly" is defined in Section 112.312(7), Florida Statutes, as follows:
(7) "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.
The evidence in this case proved that the Respondent's request to be provided free cable television service was made with a wrongful intent and for the purpose of obtaining a benefit (free cable television service) resulting from some act or omission of the Respondent (favorable consideration of issues coming before the Respondent concerning the Cable Companies) which is inconsistent with the proper performance of his public duties.
The Respondent has argued that the evidence in this case failed to prove that the Respondent solicited the free cable television services he received. In support of this position, the Respondent has argued that no witness specifically testified that the Respondent requested the service. Although the Respondent is correct about the testimony presented in the formal hearing, the weight of the evidence supported a finding that the Respondent did solicit, directly or indirectly, the free service.
The Respondent has also suggested that the evidence proved that the Respondent was requested to accept the service so that the Respondent could monitor the service. This suggestion is based in part upon the testimony of Daniel James Olmetti that some officials in the western part of Broward County were asked to take free cable television service. Mr. Olmetti's testimony does not, however, support a finding that the Respondent was one of the public officials who was requested to take the free service. There simply was no such testimony. Mr. Olmetti did not even testify that the City of Tamarac was one of the areas within western Broward County where public officials were requested to take free cable television services.
Finally, the Respondent has argued that the Respondent's action was not corrupt because he did not solicit the free cable television service and because the service was provided so that he could monitor the service as part of his duties as Mayor of Tamarac. The evidence proved otherwise. The suggestion that the Respondent was monitoring cable television service in his capacity as Mayor is simply not supported by the evidence in this case.
Even if the evidence supported a finding that the Respondent did not request that the Cable Companies provide him with free cable television services, the evidence would support a conclusion that the Respondent's action in accepting the free cable television services constituted a corrupt action.
Conclusion.
Based upon the foregoing, it is concluded that the Respondent violated Sections 112.313(4), and 112.313(6) Florida Statutes.
Penalty.
Section 112.317, Florida Statutes, provides, in pertinent part, the following:
Violation of any provision of this part . . . shall, pursuant to applicable constitutional and statutory procedures, constitute grounds for, and may be punished by, one or more of the following:
(a) In the case of a public officer:
. . . .
4. Public censure and reprimand.
. . . .
A civil penalty not to exceed $5,000.
Restitution of any pecuniary benefits received because of the violation committed.
. . . .
The Advocate has requested that a fine of $15,000.00 be imposed on the Respondent. Evidently the Advocate's recommendation is based upon a conclusion that the Respondent should be required to pay the maximum civil penalty of
$5,000.00 for each section of Florida law the Respondent was charged with violating.
The first problem with the Advocate's recommendation is that the Commission does not have jurisdiction over violations of Section 111.011, Florida Statutes, as concluded, supra, which occurred before the provisions of Chapter 111, Florida Statutes, were moved to Chapter 112, Florida Statutes.
Even if the Commission had jurisdiction over such a violation, there was no provision in Chapter 111, Florida Statutes, which authorized the imposition of a civil penalty for a violation of Section 111.011, Florida Statutes. The only action which could be taken for a violation of Section 111.011, Florida Statutes, when the alleged violation took place was an action by a constituent to require compliance with Section 111.011, Florida Statutes, punishment for a second degree misdemeanor or removal from office. None of those actions are appropriate in this case.
Section 112.317, Florida Statutes (1989), does provide for the imposition of a civil penalty for violations under Section 112.3148, Florida Statutes, the provision to which Section 111.011, Florida Statutes, was transferred. Section 112.317, Florida Statutes, however, did not apply during the period of time that the Respondent's alleged violation of Section 111.011, Florida Statutes, occurred. The current law was not effective until 1989. Absent clear legislative intent to the contrary, such a change in the type of penalty which may be imposed for a violation of Florida Statutes, which is made after the violation has occurred may not be applied. See AAA Guaranteed Mortgage, Inc. v. Department of Banking and Finance, 517 So.2d 761 (Fla. 2d DCA 1987). Consequently, it would not be appropriate to impose a civil penalty in this case for an alleged violation of Section 111.011, Florida Statutes.
Based upon the foregoing, and assuming that the Advocate's recommended
$15,000.00 civil penalty is based upon a $5,000.00 penalty for each statutory violation charged against the Respondent, the Advocate's recommended penalty should be reduced by at least $5,000.00 to a total of $10,000.00, $5,000.00 for each of the two statutory violations the Commission has jurisdiction over.
Although a civil penalty is an appropriate penalty for the Respondent's violation of Sections 112.313(4) and 112.313(6), Florida Statutes, the imposition of the maximum penalty for each statutory violation is too severe under the facts in this case. Imposing the maximum penalty for each statutory violation fails to recognize that the two violations arose out of one act of the Respondent: accepting free cable television service. Additionally, the following facts mitigate against imposing the maximum civil penalty for the Respondent's two statutory violations:
The Respondent was holding office for the first time when he accepted the free cable television services;
The Respondent no longer holds public office; and
The Respondent is approximately 80 years of age.
91. In addition to considering the mitigating factors in this case, however, the following factors should be considered:
The Respondent received benefits as a direct result of his actions while he was Mayor of Tamarac which would have costs him $3,416.46; and
The fact that the Respondent accepted a free service immediately before, during and after voting on a matter which directly benefited the donor of the service.
92. Based upon the foregoing, it is concluded that the Respondent should be required to pay a civil penalty in the amount of $7,000.00. This amount is approximately double the amount of the benefit which the Respondent received by accepting free cable television services. By requiring that the Respondent pay a civil penalty of $7,000.00, he will in effect be required to pay $3,416.46 for the benefit he saved and the amount that he saved, plus a penalty of just over
$3,500.00.
Based upon the foregoing Findings of Fact and Conclusions of Law, it is
RECOMMENDED that the Commission on Ethics enter a Final Order and Public Report: (1) finding that the Respondent, violated Sections 112,313(4) and 112.313(6), Florida Statutes, as alleged in Complaint No. 90-31; (2) concluding that the Commission has no jurisdiction over the Respondent's alleged violation of Section 111.011, Florida Statutes, and, therefore, that portion of Complaint No. 90-31 is dismissed; and (3) imposing a civil penalty of $7,000.00 on the Respondent.
DONE and ENTERED this 21st day of August, 1991, in Tallahassee, Florida.
LARRY J. SARTIN
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 21st day of August, 1991.
APPENDIX TO RECOMMENDED ORDER
The parties have submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted.
The Advocate's Proposed Findings of Fact
Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection
1 and 4.
26 and 31. The weight of the evidence proved that the services was installed on April 12, 1986.
3 27.
4 28.
5-6 35 and 37.
7-8 See 29 and 41.
9 29.
10 Not supported by the weight of the evidence. The
Respondent's | testimony | on this point was not credible. | |
11 | 30. | ||
12 | 56. | ||
13 | 52. | ||
14 | 53. | ||
15 | Not supported by the weight of the evidence. | See 55. | |
16 | 23. | ||
17 | 24. | ||
18 | 25. | ||
19 | 47. | ||
20 | Not relevant and cumulative. |
21-22 | 47. | |
23 | 45. | |
24 | 11. | |
25 | 19. | |
26 | 12 and | 20. But see 21. |
27 | 18 and | 32. |
28 | 49. | |
29 | 18. | |
30 | 14-15. | |
31 | 15-16. | |
32 | Hereby | accepted. |
33 | 16. | |
34-35 | 48. | |
36 | 49. | |
37 | 50. | |
38 | 35, 37 | and 51. |
39* | 48-51. |
* Appears as a second proposed finding of fact 38.
The Respondent's Proposed Findings of Fact
Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection
1 1.
2 2.
3 3.
4 4.
5 8-9.
6-7 10.
8-12 Hereby accepted.
13 23-24.
14 24 and 42.
15 Not supported by the weight of the evidence.
16 33-34.
17 43.
18 13.
Not supported by the weight of the evidence. Mr. Olmetti admitted that his testimony on this point was "total speculation."
See 22.
Although true, what is currently being provided is not relevant.
22 13 and 22. See 14-18.
23-27 Although these proposed findings of fact are generally true, they are not relevant to this proceeding.
28 See 12 and 20-21.
29 21. Official recognition that Tamarac is in western Broward County is taken.
30 18.
See 21.
Not supported by the weight of the evidence.
Hereby accepted.
See 32 and 49.
35 See 50-51.
36 See 18 and 50-51.
37 55.
Not supported by the weight of the evidence.
Not supported by the weight of the evidence. See 18 and 49.
Not supported by the weight of the evidence.
Hereby accepted.
42 44-45.
43 45.
44 5.
Not supported by the weight of the evidence. The Respondent's testimony on this point was not credible.
Although true, not relevant to this proceeding. The evidence also proved that the Respondent was well aware that Mr. Stein did not dictate what the Respondent should or should not do.
47 47.
Hereby accepted.
Not supported by the weight of the evidence. Mr. Stein merely testified that it was possible that made such a statement to the Respondent but that he did not known whether he actually did.
50-53 Not supported by the weight of the evidence. See 49.
54 Not supported by the weight of the evidence. Mr. Stein did not answer the question about whether he would release his records because an objection to the question was sustained as not being relevant.
55 43.
56 Hereby accepted.
57 45.
58 36.
59 See 37. The rate increase was not approved until all votes were cast.
60 38.
56. Why the Respondent failed to report the free cable service is not supported by the weight of the evidence.
Not supported by the weight of the evidence. See 48.
63-64 Not relevant.
65 25 and 46-47.
66 Although generally true, this proposed finding of fact is not relevant.
67 36.
68 39.
Not supported by the weight of the evidence. The improvements were made before the rate increase was finally approved.
Although generally true, not relevant.
71-72 41.
73-74 Although generally true, not relevant.
75 Not supported by the weight of the evidence. The witnesses who testified on this matter indicated that his testimony about what discounts the Respondent might have been entitled to was merely speculation. 76-77 Although generally true, not relevant.
COPIES FURNISHED:
Virlindia Doss
Assistant Attorney General Department of Legal Affairs The Capitol, Suite 1601
Tallahassee, Florida 32399-1050
Harry Boreth, Esquire Lloyd Glasser, Esquire GLASSER & BORETH
8751 West Broward Boulevard Plantation, Florida 33324
Bonnie J. Williams Executive Director Commission on Ethics The Capitol, Room 2105 Post Office Box 6
Tallahassee, Florida 32302-0006
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 10 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.
=================================================================
AGENCY FINAL ORDER
=================================================================
BEFORE THE STATE OF FLORIDA
COMMISSION ON ETHICS
In re BERNARD HART,
DOAH Case No. 91-1890EC
Respondent. Complaint No. 90-31
/
FINAL ORDER AND PUBLIC REPORT
This matter came before the Commission on Ethics on the Recommended Order rendered in this matter on August 21, 1991 by the Division of Administrative Hearings (a copy of which is attached and incorporated by reference). The Hearing Officer recommends that the Commission find that Respondent violated Sections 112.313(4) and 112.313(6), Florida Statutes. Respondent filed exceptions.
Having reviewed the Recommended Order, the Respondent's exceptions, and the record of the public hearing of this complaint, and having heard the arguments of counsel for the Respondent and the Commission's Advocate, the Commission makes the following findings, conclusions, rulings and recommendations:
Rulings on Respondent's Exceptions To Findings of Fact
Respondent excepts generally to the Hearing Officer's Findings of Fact. Respondent argues that the Hearing Officer has not referenced the record in his Recommended Order in order to substantiate any of his findings; therefore, the findings constitute the Hearing Officer's general impressions of what the record states, rather than specific findings supported
by testimony or other documentation in the record, Although Respondent has filed his Exceptions To Recommended Order And Memorandum of Law consisting of thirty-six (36) pages, he claims to have been totally and completely prejudiced in his ability to file exceptions. This exception has no merit and is rejected.
Respondent also has not cited any authority for his assertion that the Hearing Officer is required to reference the record when making his findings. In fact, there is none. The only requirement pertaining to citation to the record of an administrative proceeding exists at Fla. Admin. Code Rule 221-6031(3). This rule provides:
No party shall file any proposed recommended order in excess of forty pages, unless the Hearing Officer has granted leave to do so beforehand. Proposed findings of fact shall be supported by citations to the record, unless lack of a transcript makes citation impossible.
Neither the Florida Statutes nor any other administrative rule requires that the Hearing Officer reference the record in rendering his recommended order.
Respondent excepts to the Hearing Officer's Finding of Fact in paragraph 12 of the Recommended Order. Respondent argues that there was no competent substantial evidence to support the Hearing Officer's finding: "Free cable television services were provided to public officials by the Cable Companies only if requested by the public official." Because there was competent substantial evidence of record upon which the Hearing Officer could make this finding, this exception is rejected. See Tr. p. 59-60 and Advocate's Exhibit No. 6 (Olmetti Deposition), p.11, p.17, p.22, p.29, p.36, and p.44.
Respondent excepts to the Hearing Officer's findings in paragraphs 14,
15 and 16 of the Recommended Order. Initially, Respondent argues that the Hearing Officer's finding, "any public official that requested free cable television service from the cable companies was requested to `monitor' the service he received," is inconsistent with Robert Steinert's testimony that cable service is provided to cities with no specific understanding as to what the purpose of it would be. There is no inconsistency here because the Hearing Officer's finding relates to a public official personally receiving the free cable service, while Steinert's testimony refers to a city receiving the free cable service.
Respondent also argues that in the second sentence in paragraph 14, the Hearing Officer erroneously found that the request to monitor was not the real reason for the provision of free cable services. He argues that the Hearing Officer based his finding on a question asked of Mr. Olmetti by the
Commission Advocate, which question was objected to by the Respondent, and sustained by the Hearing Officer. See Tr. 64. Mr. Olmetti was asked: "Would you say that the request of monitoring was essentially just to make the public official feel better about accepting free service?" Respondent argues that the testimony of Mr. Olmetti about the helpfulness of spotting a problem early on because of disruptions of service should have supported a contrary finding. This argument is rejected.
Respondent's objected that the Advocate's question was a leading question. For that reason, the Hearing Officer properly sustained his objection. Upon Respondent's counsel's suggestion, the Advocate then submitted Mr. Olmetti's deposition into evidence. It was accepted without objection. At page 12 of the deposition, Mr. Olmetti testified that the purpose of the Company's policy of providing complimentary cable services to public officials was promotion of "good will". See, also, Tr. p.60. On page 14, Mr. Olmetti admits that asking a public official to monitor services while receiving it free "would probably make them feel more comfortable." See Advocate's Exhibit No. 6 (Olmetti deposition), pp. 45-46.
This testimony along with the testimony about the lack of a formal monitoring system provides competent substantial evidence upon which the Hearing Officer could base his finding. Respondent's exception, therefore, is rejected.
Respondent excepts to the Hearing Officer's Finding of Fact in paragraph 17 of his Recommended Order where he finds that "the reason the Cable Companies provided free cable television services to public officials was described as `good will.'" Respondent argues that this was not the only reason, and it was not even the major reason. There is competent substantial evidence in the record upon which the Hearing Officer could base his finding. See Tr. 60 and Advocate's Exhibit No. 6 (Olmetti deposition) p. 35.
Respondent also argues that the Hearing Officer did not indicate whose assumption he was referring to when he also made the finding in paragraph 17, "it was assumed-that providing free cable to public officials `couldn't hurt.'" Respondent argues that this assumption is not supported by competent substantial evidence in the record. Respondent's exception is rejected. There is competent substantial evidence in the record upon which the Hearing Officer could base his finding. See Advocate's Exhibit No. 6 (Olmetti deposition) pp. 12-13 (Olmetti testifying without objection about the Company's policy).
Respondent excepts to paragraph 18 of the Hearing Officer's Recommended Order. Respondent does not appear to disagree with the first part of the Hearing officer's finding, however, he does disagree with the following:
[T]he free cable television services were provided by the Cable Companies in the hope that public officials, including the Respondent, would be favorably inclined to the Cable Companies. Free cable television services were provided to public officials to influence them to look favorably on the Cable Companies.
Respondent argues that, to the contrary, the record shows public officials used free cable television for the purpose of monitoring the cable system. Respondent claims, for example, that Mayor Falck testified he
received complaints about the cable service and monitored the service while he was mayor. This statement misrepresents the testimony of Mayor Falck. Former Mayor Falck testified that complaints were referred to the City Manager. He did not testify that either he or the City Manager monitored the complaints through the use of the cable service which was provided to the City in City Hall. Respondent, however, is correct in his paraphrasing of the testimony of both Mr.. Steinert and Ms. Massaro. Their testimony, however,
does not conflict with the Hearing Officer's finding. There is competent, substantial evidence of record to support the Hearings Officer's finding. See Advocate's Exhibit No. 6 (Olmetti deposition) pp. 23, 45-46 and Tr. pp. 61 & 69.
Next, Respondent argues that since the Hearing Officer specifically found that the Respondent did not agree to vote favorably or use his official position to benefit the cable company, findings about what the cable company hoped as a result of providing free service are irrelevant, pure speculation and unsupported by the record. He also argues that "the intent of the cable company, a gleaned from the Hearing Officer's misinterpretation of the testimony of one individual, five years after the event in question, is completely irrelevant to the intent of the Respondent at the time that the service was provided, and no more than an unsupported conclusion by the Hearing Officer." The Hearing Officer's finding merely indicates that an element necessary to prosecute Respondent for violating Section 112.313(2), Florida Statutes, is missing. Respondent is wrong, however, in claiming that the intent of the cable company is irrelevant. He also is wrong in his implication that the intent of the Respondent is of prime importance.
We note that one of the elements of a Section 112.313(4) violation that must be proved is whether the Respondent knew, or, with the exercise of reasonable care, should have known, that the free cable service was given to influence a vote or other action in which the officer or employee was expected to participate in his official capacity. Thus, in order for the Hearing Officer to make a finding of fact concerning this element of the charge against Respondent, evidence concerning the intent of the Cable Company in giving free cable service to engender "good will" and evidence concerning the actions or inactions of Respondent was relevant. For the above reasons, Respondent's exception is rejected.
Respondent excepts to the Hearing Officer's Finding of Fact in paragraph 19 of the Recommended Order. The Hearing Officer qualified his finding through use of the word "generally", and acknowledged that free cable services were provided to officials of some condominium associations and employees of the Cable Companies. There is competent substantial evidence to support the Hearing Officer's finding. Respondent's exception, therefore, is rejected.
Respondent excepts to the Hearing Officer's Finding of Fact in paragraph 20 of the Recommended Order. Respondent argues that the Hearing Officer's finding, "as a general rule, the cable companies did not solicit, offer, or invite public officials to take free cable television services," is inconsistent with his finding in paragraph 21, that "American
Cable did offer free service to some public Officials in the `western part of Broward County in 1996.'" Here, the Hearing Officer, again, qualified his finding by beginning his finding with "as a general rule". There is competent substantial evidence of record upon which the Hearing Officer could base his finding. See Advocate's Exhibit No. 6 (Olmetti deposition), pp. 11-12, 21.
Respondent appears to argue that if, as the Hearing Officer finds in paragraph 21, "American Cable did offer free services to some public officials in the `western part of Broward County in 1986,'" then free cable services were provided even if the public official had not requested the services. We do not find the two findings to be inconsistent. The second part of paragraph 20 is qualified by the "as a general rule" language. More importantly, Respondent testified that he authorized Sydney Stein to have the cable service installed for him (which Stein denies, Tr. p.80). See Tr.
p.109. Respondent can not have it both ways. He cannot claim that he solicited or asked someone else to obtain free cable services for him, while also claiming that the Cable Company offered the cable service. For the reasons stated above, and because there is competent substantial evidence of record to support the Hearing Officer's findings, Respondent's exception is rejected.
Respondent excepts to the Hearing Officer's finding in paragraph 21 of his Recommended Order that "the weight of the evidence, . . . failed to prove if the Respondent or any other official of Tamarac was approached by the Cable Companies and offered free cable television services."
Respondent argues that the Hearing Officer, by stating the finding as he has, has placed the burden on him to prove his innocence rather than upon the Advocate to prove that he violated the law. Respondent's exception has no merit and is rejected.
As stated by the Court in Heifitz v. Department of Business Regulation, Division of Alcoholic Beverages & Tobacco, 475 So.2d 1277, 1281 (Fla. 1st DCA 1985):
It is the hearing officer's function to consider all the evidence presented, resolve conflicts, judge credibility of witnesses, draw permissible inferences from the evidence, and reach ultimate findings of fact based on competent substantial evidence. State Beverage Department v. Ernal, Inc., 119 So.2d 566
3d DC 1959). If, as is often the case, the evidence presented supports two inconsistent findings, it is the hearing officer's role to decide the issue one way or the other.
The Hearing Officer was properly fulfilling this function. It is not our function to reweigh the evidence as long as there is competent substantial evidence to support the Hearing Officer s finding, as there is here.
Respondent excepts to the Hearing Officer's finding in paragraph
25 of the Recommended Order. Respondent argues that the finding is "logically incomprehensible" and not supported by any competent evidence anywhere in the record. Respondent argues that "review of cable services" does not refer to anything that was discussed in the entire record. We note, however, that by reading the Hearing Officer's finding within `the context of this proceeding, the Hearing Officer was referring to the monitoring of cable services by Mayor Falck, by his watching cable television, when complaints came into his office. There is competent substantial evidence in the record to support the Hearing Officer's finding. See paragraph 5 above. Respondent's exception is rejected.
Respondent excepts to the Hearing Officer's Finding of Fact in paragraph 27 of the Recommended Order. Respondent argues that the finding that Respondent received cable television services until January 30, 1990 is a finding that extends beyond the jurisdiction of this Commission, and as stated by the Hearing Officer himself, this date is "well outside the relevant period of inquiry in this investigation." Respondent's argument has no merit.
While the Commission has no jurisdiction over Respondent's actions after he was no longer a public officer, evidence that he continued to receive the services is relevant to whether Respondent was receiving the cable services for the purpose of monitoring as he claimed. Respondent's exception is rejected.
Respondent excepts to the Hearing Officer's Findings of Fact in paragraphs 28, 29, 30, and 31 of the Recommended Order. For the reasons set forth in paragraph 10 above, Respondent's exceptions are rejected.
Respondent excepts to the Hearing Officer's Finding of Fact in paragraph 32 of the Recommended Order. Respondent argues that there is no evidence in the record to support the Hearing Officer's finding, "in light of the policy of the Cable Companies that free cable television services were provided only upon a request of a public official, . . . Respondent requested, directly or indirectly, that the free cable television services be provided to him." Respondent argues that this ultimate conclusion is based upon a false premise--the policy of the Cable Company to provide free cable services only upon the request of a public official. Respondent argues that contrary to the Company's stated policy, it did offer free services to some public officials in the western part of Broward County in 1986.
Respondent is arguing that there was an exception to the Company's policy in 1986, and because Respondent lives in the western part of Broward County, it is fair to conclude that he was one of those public officials who was offered the free cable services. However, there is competent substantial evidence of record upon which the Hearing Officer could base his finding. For example, Respondent testified that he never met with or talked to the Cable Company in 1986, before the cable was installed in his home. He also testified that he authorized Sydney Stein to arrange for the cable television services to be installed in his home. Thus, this testimony along with Mr. Olmetti's testimony concerning the policy of the Cable Company and his experience with public officials was sufficient for the Hearing officer to make the finding that he did here. Respondent's exception, therefore, is rejected.
Respondent excepts to the Hearing Officer's Finding of Fact in paragraph 41 of the Recommended Order. Respondent argues that the terminology used by the Hearing Officer--"In January 1987, Tamarac lost the right to regulate the rates that Cable Companies charged. "--makes it appear that Tamarac alone "lost the right," and by implication, it may have arisen out of some of the facts in the instant case. This exception is rejected as baseless. No such implication arises from reading the Hearing Officer's finding, particularly when we read the second sentence in the finding relating to "municipalities". Respondent's exception is rejected.
Respondent excepts to the Hearing Officer's Finding of Fact in paragraph 48 of his Recommended Order. There, the Hearing Officer listed the evidence upon which he based his rejection of Respondent's testimony, in which
the Respondent justified his acceptance of free cable services for purposes of monitoring the service. Respondent argues the significance of the evidence, although he does not necessarily disagree with the facts themselves. However, as we stated in paragraph 8 above, it is the function of the hearing officer to consider all the evidence presented, to resolve conflicts, to judge credibility of witnesses, to draw permissible inferences from the evidence, and to reach ultimate findings of fact based upon competent substantial evidence. It is not our function to reweigh the evidence as long as there is competent substantial evidence to support the Hearing Officer's finding, as there is here. Respondent's exception is rejected.
Respondent excepts to the Hearing Officer's Finding of Fact in paragraph 49 of his Recommended Order. The Hearing Officer found that Mr. Stein did not make the arrangements with American Cable for Respondent's free cable service. Respondent argues that Mr. Stein, upon whose advice he
relied, was uncertain in his testimony about whether he suggested to Respondent that Respondent would be better qualified to decide on cable regulation matters if he had an opportunity to monitor the cable television; therefore, Mr. Stein's testimony should not have been credited more than that of Respondent. We note, however, that Mr. Stein was not equivocal in his testimony that he did not discuss arranging free cable service with Respondent during his term on the City Council. See Tr. p. 80. There also was no evidence that free cable services were foisted upon Respondent without his consent. There is competent substantial evidence of record upon which the Hearing Officer could base his finding.
Respondent also argues that he was prejudiced in his ability to impeach the testimony of Mr. Stein by the Hearing Officer's refusal to allow Respondent to produce evidence which would show the prior relationship between the cable company and Mr. Stein before Respondent was elected Mayor, and to demonstrate that Mr. Stein had himself received free cable television services from the cable company. We find that any evidence which could have been elicited in these area would not go to show that the Hearing Officer was incorrect in his finding. Such evidence could only tend to show that Mr.
Stein may have been guilty of she same violation that Respondent was charged with violating. We also find that the Hearing Officer was correct in sustaining the objection of the Advocate relative to Respondent's questioning of Mr. Stein about whether he would be willing to sign a letter to the cable company authorizing the release of his cable records. Tr. p. 88.
Whether or not Mr. Stein was willing during the hearing to sign a letter releasing his cable records was irrelevant to the issues before the Hearing Officer. The Hearing Officer did not abuse his discretion in sustaining the objection.
Respondent also excepts to the last sentence in this finding: [E]ven if the evidence had proved that Mr.
Stein requested that American Cable provide the
Respondent with free cable television services, [Mr. Stein] would have done so on behalf of, and as agent for, the Respondent.
There is competent substantial evidence in the record to support this finding. See Tr. p. 109. Respondent's exception, therefore, is rejected.
Respondent excepts to the Hearing Officer's Finding of Fact in paragraph 50 of the Recommended Order in which he finds that in light of the fact that Cable Companies provided free cable services to public officials to influence-them to look favorably on the Cable Companies (See Recommended Order, Finding of Fact No. 18), Respondent was provided free cable television services by the cable Companies during his term as Mayor to influence him in his official capacity. Respondent argues that this finding is not supported by competent substantial evidence and demonstrates the Hearing Officer's difficulty with distinguishing between his own opinion and the facts which are supported by competent substantial evidence in the record. His argument as no merit. The Hearing Officer's finding is supported by competent substantial evidence. See paragraph No. 5 above. Respondent's exception is rejected.
Respondent excepts to the Hearing Officer's Finding of Fact in paragraph 51 of the Recommended Order in which he finds that Respondent should have known why he was being provided free cable television service. Respondent argues that this finding is not a "fact", but a conclusion of the Hearing Officer, and, again, demonstrates the Hearing Officer's confusion.
We note that one of the elements of a Section 112.313(4) violation that must be proved is that Respondent knew, or, with the exercise of reasonable care, should have known, that the free cable service was given to influence a vote or other action in which the officer or employee was expected to participate in his official capacity. We also note that there was competent substantial evidence in the record upon which the Hearing Officer could base his finding. Our review of the record indicates that contrary to Respondent's assertion, there was no competent substantial evidence of record upon which the Hearing Officer could base a finding that at the time that Respondent was elected Mayor, the receipt of cable services in the home of a public official was either for purposes of monitoring the service or was an accepted practice in the City of Tamarac and throughout the western part of Broward County.
Our review of the record indicates that cable services were given to public official's for purposes of engendering "good will" which could favorably incline a public official towards a position being taken by the Cable Company concerning any number of issues relating to its franchise agreement with. the City, which could still come before the City Council even after issues concerning rate increases no longer were subject to City Council approval.
The purpose of asking a public official to monitor the services was to make the public official feel better about receiving the free service. The Cable Company had no expectation that the public official would actually monitor cable services for the Cable Company.
Contrary to Respondent's implied assertion, the record does not indicate that the accepted practice in the City of Tamarac and throughout the western part of Broward County was for a public official to monitor cable services by receiving these services in the public official's own home. For example, Ms. Massaro testified about Mayor Falck monitoring the correctness of complaints he received by watching the cable television in the Mayor's Office. The provision of cable services in City- Hall is provision of services to the City as opposed to the provision of cable services to a public official. There is nothing wrong with the former. There may be something wrong with the latter. For these reasons, Respondent's exception is rejected.
Respondent excepts to the Hearing Officer's Finding of Fact in paragraph 52 in which he finds that the retail value of the free cable television services received by Respondent between April 12, 1986 and March of 1988 was $1,649.43. Respondent argues that because the record reflects that Respondent could have received the services for less, the retail rate is irrelevant. We note, however, that the Hearing Officer's finding is based upon the testimony of Mr. Steinert (Tr. p. 19) and Advocate's Exhibit No. 5. Both were accepted into evidence without objection. The Hearing Officer, therefore, did not err in making this finding. Respondent's exception is rejected because there is competent substantial evidence of record to support it.
Respondent excepts to the Hearing Officer's Findings of Fact in paragraphs 53 and 54 of his Recommended Order because they relate to matters beyond the period of time that he was a public official. For the reasons stated i~ paragraph 10 above, Respondent's exception is rejected.
Respondent excepts to the Hearing Officer's Finding of Fact in paragraph 56 of the Recommended Order. Respondent argues that as far as the question of reporting is concerned, a finding that Respondent did not report the value of the free cable television services he received is beyond the jurisdiction of the Commission. We find, however, that this finding is
based upon competent substantial evidence that was not objected to by Respondent. The question of the jurisdiction of the Commission was properly addressed by the Hearing Officer in his Conclusions of Law.
Respondent also argues that he did not accept the cable television as a gift. Both Respondent's monitoring assertion as well as the Hearing Officer's function are addressed above. For these reasons, Respondent's exception is rejected.
Respondent excepts to the Hearing Officer's failure to include in the Recommended Order, Respondent's proposed findings of fact nos. 8-12, 33, 41 and 56, although he ruled that he had accepted them. We find that although the proposed facts are true, they were not relevant to the issues before the Hearing Officer for determination. This Commission cannot reweigh the evidence. That was the function of the Hearing Officer. We can only modify the Hearing Officer's Findings of Fact if his. findings are not supported by competent substantial evidence. We find no error; therefore, this exception is rejected.
Respondent excepts to the manner in which the Hearing Officer adopted Respondent's proposed finding of fact no. 14. Respondent's exception is rejected for the reasons stated in paragraph 8 above.
Respondent excepts to the Hearing Officer's rejection of his proposed finding of fact no. 15. Respondent's exception is rejected for the reasons stated in paragraph 8 above.
Respondent excepts to the Hearing Officer's rejection of his proposed finding of fact no. 17. Respondent's exception is rejected for the reasons stated in paragraph B above. Additionally, we note that Respondent's proposed finding is incorporated in paragraphs 42 and 43 of the Recommended Order.
Respondent excepts to the Hearing Officer's rejection of his proposed findings of fact nos. 23-27. Respondent's exception is rejected for the reasons stated in paragraphs 8 and 17 above.
Respondent excepts to the Hearing Officer's failure to incorporate Respondent's proposed finding of fact no. 28 in the Recommended Order and finding instead, paragraphs 12, 20 and 21. Respondent's exception is rejected for the reasons stated in paragraphs 2, 7, and 8 above.
Respondent excepts to the Hearing Officer's failure to accept his proposed finding of fact no. 30 and adopting instead, the findings in paragraphs 18 and 30 of the Recommended Order. Respondent's exception is rejected. We find that the Hearing Officer has substantially adopted Respondent's proposed finding in paragraph 18 of the Recommended Order.
Respondent excepts to the Hearing Officer's failure to adopt Respondent's finding of fact no. 31 in its entirety. Respondent's exception is rejected for "the reason's stated in paragraph 8 above.
Respondent excepts to the Hearing Officer's rejection of his proposed finding of fact no. 32. Respondent's exception is rejected for the reasons stated in paragraph 8 above.
Respondent excepts to the Hearing Officer's failure to incorporate Respondent's finding of fact no. 33 into his Findings of Fact, although he had accepted it. Respondent's exception is rejected for the reasons stated in paragraph 21 above.
Respondent excepts to the failure of the Hearing Officer to accept Respondent's proposed finding of fact no. 34 as written. Respondent's exception is rejected for the reasons stated in paragraphs 8, 12, and 15 above. See also Tr. p. 154-155.
Respondent excepts to the Hearing Officer's failure to accept Respondent's proposed finding of fact no. 35 as written. Respondent's exception is rejected for the reasons stated in paragraphs 8, 16, and 17 above.
Respondent excepts to the Hearing Officer's rejection of Respondent's proposed finding of fact no. 38. Respondent's exception is rejected for the reasons state in paragraphs 8 and 15 above.
Respondent excepts to the Hearing Officer's rejection of Respondent's finding of fact no. 40. Respondent's exception is rejected for the reasons stated in paragraph 8 above. We also note that for purposes of a Section 112.313(4) violation, assuming that the other elements are proved, it makes no difference whether Respondent requested the cable television services or it was offered to him. Of primary importance is the fact that he had accepted the free service when he should have known that it was given with the intent to influence his official action. Respondent's emphasis on his assertion that the free cable services were offered to him is misplaced.
Respondent excepts to the Hearing Officer's rejection of Respondent's proposed finding of fact no. 45. Respondent's exception is rejected for the reasons stated in paragraph 8 above.
Respondent excepts to the Hearing Officer's rejection of Respondent's proposed finding of fact. no. 48. Respondent's exception is rejected for the reasons stated in paragraph 8 above.
Respondent excepts to the Hearing Officer's rejection of Respondent's proposed finding of fact no. 49. Respondent's exception is rejected for the reasons stated in paragraphs 8 and 17 above.
Respondent excepts to the Hearing Officer's rejection of Respondent's proposed findings of fact nos. 50-54. For the reasons stated in paragraphs 8,
15 and 17 above, Respondent's exception is rejected.
Respondent excepts to the Hearing Officer's rejection of Respondent's reasons for not filing a financial disclosure for the receipt of free cable service as a gift in his proposed finding of fact no. 61. Respondent's exception is rejected for the reasons stated in paragraph 8 above.
Respondent excepts to the Hearing Officer's rejection of Respondent's proposed finding of fact no. 62. For the reasons stated in paragraph 8 above, Respondent's. exception is rejected.
Respondent excepts to the Hearing Officer's rejection of Respondent's proposed findings of face nos. 63 and 64. For the reasons stated in paragraph
8 above, Respondent's exception is rejected.
Respondent excepts to the Hearing Officer's rejection of Respondent's proposed finding of fact no. 69. Respondent's exception is rejected for the reasons stated in paragraph 8 above. See also Tr. p. 138.
Respondent excepts to the Hearing Officer's rejection of Respondent's proposed finding of fact no. 70. Respondent's exception is rejected for the reasons stated in paragraph 8 above.
Respondent excepts to the Hearing Officer's rejection of Respondent's proposed findings of fact nos. 73-77. For the reasons stated in paragraph 8 and 10 above, Respondent's exception is rejected.
Rulings on Respondent's Exceptions to Conclusions of Law
Violation of Section 112.313(4), Florida Statutes
Respondent takes exception to the Hearing Officer's conclusion that he violated Section 112.313(4), Florida Statutes, arguing that the findings of fact and the Hearing Officer's analysis do not form a sufficient basis from which to reach this conclusion. However, the facts as found demonstrate that the Respondent was a public officer who accepted a "thing of value" when he received free cable television services during his term of office and that he should have known that he was being provided free cable television services to influence his vote on the pending rate increase and future rate or franchise decisions in which he was expected to participate in his official capacity as Mayor of Tamarac. Therefore, the Commission denies the Respondent's exceptions and adopts the Hearing Officer's analysis.
Violation of Section 112.313(6), Florida Statutes.
Respondent takes exception to the Hearing Officer's conclusion that he violated Section 112.313(6), Florida Statutes, arguing that the Findings
of Fact and the Hearing Officer's analysis do not form a sufficient basis from which to reach the conclusion that he acted "corruptly." However, the facts as found demonstrate that the Respondent would not have received the free cable services, a benefit, if he had not been a public officer; therefore, by requesting the free cable services, Respondent used his
official position as Mayor. The facts also demonstrate that Respondent wrongfully intended to receive the free cable services knowing that he was not requesting the services for monitoring and that his receipt of the free services "`as inconsistent with the proper performance of his duties. The Commission, therefore, rejects the Respondent's exceptions and adopts the Hearing Officer's analysis.
Findings of Fact
The findings of fact set forth in the. Recommended Order are approved, adopted, and incorporated herein by reference.
Conclusions of Law
The Commission has previously taken the position that a violation of Section 111.011, Florida Statutes, was a breach of the public trust over which it has jurisdiction under Article II, Section 8 of the Florida Constitution to investigate and issue a public report. To the extent that the Hearing Officer's conclusions differ, they are rejected. However, we do adopt the Hearing Officer's ultimate conclusion that the Commission does not have jurisdiction over Respondent's alleged violation of Section
111.011, Florida Statutes (1987), having been divested of this jurisdiction pursuant to Chapter 91-85, Laws of Florida.
The Conclusions of Law set forth in the Recommended Order with respect to Jurisdiction, Applicable Statutes and Burden of Proof (Part A of the Conclusions of Law in the Recommended Order) and the Respondent's Violation of Sections 112.313(4) and 112.313(6) , Florida statutes (Part B and Part C of the Conclusions of Law in the Recommended Order) are approved, adopted, and incorporated herein by reference to the extent that they are not inconsistent with the above.
Accordingly, the Commission on Ethics finds that the Respondent violated Sections 112.313(4) and 112.313(6), Florida Statutes, and hereby dismisses the Complaint in so far as it charges Respondent with violating former Section 111.011, Florida Statutes (1987).
Recommended Penalty
The Hearing Officer recommended that the Commission recommend a civil penalty in the amount of $7,000. This amount is approximately double the amount of the benefit at retail cost that Respondent received by accepting the free cable services. The Hearing Officer reasoned that by requiring the Respondent to pay a civil penalty of $7,000, Respondent will in effect be required to pay $3,416.46 for the retail cost of the benefit he received and the amount that he saved, plus a penalty. of just over $3500.
In making this recommendation, the Hearing Officer concluded that the maximum penalty of $5000 for each statutory charge (See Section 112.317(1)(a)6., Florida Statutes) was too severe under the facts in this case.
We believe that the amount of the benefit considered by the Hearing Officer was too high in light of the fact that the record reflects that
Respondent would have been entitled to a bulk rate had he paid for the cable services. After considering the argument of counsel, we determine that benefit to have been approximately $700. Therefore we conclude that the total recommended penalty should be $4200, including a restitution penalty of
$700 and a civil penalty of $3500.
Having found that the Respondent, Bernard Hart, as the Mayor of Tamarac, violated Sections 112.313(4) and 112.313(6), Florida Statutes, as described herein, pursuant to Sections 112.317(1) and 112.324(4), Florida Statutes, it is the recommendation of the Commission on Ethics that a civil penalty be imposed upon Respondent in the amount of $3,500.00 and a restitution penalty be imposed upon him in the amount of $700.00.
ORDERED by the State of Florida Commission on Ethics meeting in public session on Friday, October 25, 1991.
Date Rendered
Dean Bunch Chairman
YOU ARE NOTIFIED THAT YOU ARE ENTITLED, PURSUANT TO SECTION 120.68, FLORIDA STATUTES, TO JUDICIAL REVIEW OF AN ORDER WHICH ADVERSELY AFFECTS YOU. REVIEW PROCEEDINGS ARE COMMENCED BY FILING A NOTICE OF ADMINISTRATIVE APPEAL WITH THE APPROPRIATE DISTRICT COURT OF APPEAL, AND ARE CONDUCTED IN ACCORDANCE WITH THE FLORIDA RULES OF APPELLATE PROCEDURE. THE NOTICE OF ADMINISTRATIVE APPEAL MUST BE FILED WITHIN 30 DAYS OF RENDITION OF THE ORDER TO BE REVIEWED.
cc: Mr. Harry Boreth and Mr. Lloyd Glasser, Attorneys for Respondent
Ms. Virlindia Doss, Commission Advocate Mr. Isaac "Zeke" Feldman, complainant Division of Administrative Hearings
| Issue Date | Proceedings |
|---|---|
| Aug. 13, 1992 | (4th) DCA Decision filed. |
| Oct. 30, 1991 | Final Order and Public Report filed. |
| Oct. 07, 1991 | Advocate's Response to the Respondent's Exceptions to Recommended Order filed. |
| Oct. 03, 1991 | AGENCY APPEAL, ONCE THE RETENTION SCHEDULE OF -KEEP ONE YEAR AFTER CLOSURE- IS MET, CASE FILE IS RETURNED TO AGENCY GENERAL COUNSEL. -ac |
| Aug. 21, 1991 | Recommended Order sent out. CASE CLOSED. Hearing held 6/4/91. |
| Aug. 05, 1991 | Order Granting Motion for Clarification and Denying Motion for Extension of Time sent out. |
| Aug. 05, 1991 | Advocate`s Proposed Recommended Public Report of the Hearing Officer filed. (From Virlindia Doss) |
| Aug. 05, 1991 | (Respondent) Proposed Findings of Fact and Proposed Recommended Order filed. (From Harry O. Boreth) |
| Jul. 25, 1991 | Notice of Filing w/Deposition of Helen Massaro; Complaint For Declaratory Judgment and For Supplemental Relief w/Exhibit-A filed. (From Harry O. Boreth) |
| Jul. 24, 1991 | Deposition of Helen Massaro w/Notice of Filing filed. (From Virlindia Doss) |
| Jul. 24, 1991 | Response to Motion For Clarification of Time Deadlines and Objection to Motion For Extension of Time to file Compliant For Declaratory Judgment filed. (From Virlindia Doss) |
| Jul. 22, 1991 | Notice of Intention to File a Complaint For Declaratory Judgment in Federal District Court; Motion For Clarification of Time Deadlines Pursuant to Rulings of Hearing Officer at Hearing on June 4, 1991; Motion For Extension of Time to File Complaint For De |
| Jul. 22, 1991 | Transcript filed. |
| Jul. 19, 1991 | Notice of Filing w/Copy of Transcript filed.(From Virlindia Doss) |
| Jun. 24, 1991 | Subpoena Ad Testificandum filed. (From V. doss) |
| Jun. 17, 1991 | Notice of Taking Deposition filed. (from Virlindia Doss) |
| Jun. 04, 1991 | CASE STATUS: Hearing Held. |
| May 31, 1991 | Order Denying Motion for Summary Judgment sent out. |
| May 30, 1991 | Order Denying Motion for Reconsideration and Concerning Motion for Sanctions sent out. |
| May 29, 1991 | Notice of Telephonic Hearing (May 29, 1991: 2:15 PM) filed. |
| May 29, 1991 | Advocate's Response to Motion for Summary Judgment filed. |
| May 28, 1991 | Advocate's Witness List filed. (from V. Doss) |
| May 28, 1991 | Motion For Sanctions filed. (from V. Doss) |
| May 24, 1991 | Notice of Taking Deposition; Witness List; Motion For Reconsideration;Motion For Summary Judgement; Notice of Filing; Deposition of Daniel J. Olmetti ; Deposition of Sydney M. Stein filed. |
| May 22, 1991 | Order Granting Motion to Compel Discovery sent out. |
| May 21, 1991 | Order Granting Motion to Expedite Discovery sent out. |
| May 20, 1991 | Motion to Compel Production w/Objection to Request to Produce Documents & Affidavit filed. (From Virlindia Doss) |
| May 17, 1991 | Notice of Filing; Deposition of Bernard Hart filed. |
| May 17, 1991 | (Respondent) Objection to Request to Produce Documents; Request to Produce Documents; Motion to Expedite Discovery filed. |
| May 10, 1991 | Order Granting Motion to Expedite Discovery sent out. |
| May 10, 1991 | Motion to Expedite Discovery; Request to Produce Documents filed. (From Virlindia Doss) |
| May 06, 1991 | Notice of Canceling Depositions filed. (From Harry O. Boreth) |
| Apr. 26, 1991 | Amended Notice of Hearing sent out. (hearing set for June 4, 1991; 10:30am; Ft Laud). |
| Apr. 25, 1991 | Order Granting Motion for Change of Venue sent out. |
| Apr. 25, 1991 | Notice of Taking Deposition; Notice of Appearance; Motion For Change of Venue; Letter Requesting Subpoenas filed. (from Harry O. Boreth) |
| Apr. 01, 1991 | Notice of Hearing sent out. (hearing set for 6/4/91; at 10:30am; in Tamarac) |
| Apr. 01, 1991 | Order to Issue Notice of Formal Hearing (notice must be provided at least 30 days prior to hearing) sent out. |
| Mar. 25, 1991 | Agency Referral Letter; Complaint; Determination of Investigative Jurisdiction and Order to Investigate w/exhibits A-E; Advocate`s Recommendation; Order Finding Probable Cause filed. |
| Issue Date | Document | Summary |
|---|---|---|
| Oct. 29, 1991 | Agency Final Order | |
| Aug. 21, 1991 | Recommended Order | Mayor's acceptance of free cable TV was corrupt use of position and compen- sation to influence him. Commission had no jurisd. over failure to report. |
