STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

In Re GEORGE COSTAGE, )

)

Respondent, ) CASE NO. 92-1007EC

) COMPLAINT NO. 91-37

)

)

)

)

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 August 4, 1992, in Clearwater, Florida.

APPEARANCES

The Advocate: Virlindia Doss

Assistant Attorney General Department of Legal Affairs The Capitol, Suite 1601

Tallahassee, Florida 32399-1050

For Respondent: George A. Routh, Esquire

George A. Routh, P.A. 1446 Court Street

Clearwater, Florida 34616 STATEMENT OF THE ISSUES

Whether the Respondent, George Costage, violated Section 112.313(6), Florida Statutes, by performing his official duties, or by using his official position or property or resources within his trust, to obtain air transportation, meals, entertainment, and similar or related items for his spouse, at public expense?

PRELIMINARY STATEMENT

On or about March 7, 1991, a Complaint against the Respondent, George Costage, was filed with the Florida Commission on Ethics (hereinafter referred to as the "Commission"). Based upon a review of the Complaint, the Commission issued a Determination of Investigative Jurisdiction and Order to Investigate on June 20, 1991, ordering the staff of the Commission to conduct a preliminary investigation into the charges against Mr. Costage.

Following the Commission's investigation of the allegations against Mr. Costage, a Report of Investigation was released on November 26, 1991. Based upon the Complaint and the Report of Investigation the Advocate for the Commission issued an Advocate's Recommendation on December 9, 1991. The Advocate determined that there was NOT probable cause to believe that Mr.

Costage violated Section 112.313(6), Florida Statutes.

Based upon the Report of Investigation, but contrary to the Advocate's Recommendation, the Commission issued an Order Finding Probable Cause on January 29, 1991. The Commission concluded there was probable cause to believe that Mr. Costage violated Section 112.313(6), Florida Statutes. The Commission also concluded that further proceedings were not warranted and determined that a letter of admonishment should be issued to Mr. Costage unless he requested a public hearing. Mr. Costage rejected the Commission's determination and requested that a public hearing be conducted.

By letter dated February 13, 1992, the Commission referred the 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 Mr. Costage be conducted by the Division of Administrative Hearings.

The hearing was initially scheduled for May 19, 1992. The hearing was continued and rescheduled for August 4, 1992.

At the final hearing the Advocate presented the testimony of Robert Caldemeyer, Sal Cincotta, Robert Michael Baty, Alton R. Dettmer, Arthur Levine and John Downes. The Advocate offered seven exhibits for identification purposes. All seven exhibits were accepted into evidence, including the deposition testimony of Mr. Costage.

On July 24, 1992, the Advocate filed a Motion to Accept Deposition in Lieu of Live Testimony. In this motion the Advocate requested that Joanne Ryan's testimony by submitted by deposition and that the deposition be taken after the final hearing of this matter. It was represented that Respondent agreed with the request. On July 27, 1992, an order was entered granting the motion. On August 25, 1992, Ms. Ryan's deposition was filed and marked as Advocate's exhibit 1.

Mr. Costage testified on his own behalf. Mr. Costage also presented the testimony of Linda Adkins and Michael McLaughlin. Mr. Costage also presented fourteen exhibits for identification purposes. Respondent's exhibits 1, 3, 8 and 10 through 14 were accepted into evidence. Respondent's exhibits 3, 8 and

10 were hearsay and have been relied upon only to the extent authorized by Chapter 120, Florida Statutes. Respondent's exhibits 2, 4 through 7 and 9 were rejected.

No transcript of the final hearing was ordered by the parties. The parties filed proposed recommended orders containing 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

1. The Respondent.

   
   

   1. At all times relevant to this proceeding, the Respondent, George Costage, served as a member of the City Commission of the City of Safety Harbor (hereinafter referred to as the "City").

   2. Mr. Costage was first elected to the City Commission in March of 1986. He was reelected to the City Commission in 1988 and 1990. His bid for reelection in 1992 was unsuccessful.

      
      

   3. Mr. Costage's service on the City Commission was his only experience holding public office. Mr. Costage had previously worked as a fireman in the City of Detroit until his retirement.

      
      

   4. Mr. Costage was paid a salary of approximately $400.00 a month for his service on the City Commission.

      
      

2. The City of Safety Harbor's Travel Policy and Procedure.

   
   

   1. Members of the City Commission, including Mr. Costage, were required from time to time to travel on behalf of the City. For example, travel for the City in conjunction with the Florida League of Cities was expected of Commissioners, including Mr. Costage. Mr. Costage served on the Ethics Committee of the Florida League of Cities.

      
      

   2. Commissioners also incurred expenses dealing with the citizens of the City which they usually were not specifically reimbursed for. In lieu of reimbursing Commissioners for such expenses, all Commissioners were paid $150.00 a month by the City. The $150.00 monthly payment was intended as reimbursement for the otherwise unreimbursed expenses they incurred. Commissioners were paid

      $150.00 per month regardless of the amount of actual expenses they incurred.

      
      

   3. The City also paid Commissioners for expenses they incurred for travel out side of the City on City business. For example, travel by Commissioners to an annual Florida League of Cities' meeting in Crystal River, Florida, was paid for by the City.

      
      

   4. There were several methods by which the City paid for out-of-town travel expenses of Commissioners:

      
      

      1. The City made payments directly to the vendor on behalf of a Commissioner;

         
         

      2. A credit card was issued by the City for each Commissioner. Commissioners were allowed to use the credit card to charge expenses which the City then paid directly to the credit card company;

         
         

      3. Commissioners could obtain reimbursement from the City for expenses they had previously incurred and paid out of their own resources; and

         
         

      4. The City could advance funds to Commissioners to cover estimated travel expenses to be incurred.

         
         

   5. The City used a form titled a "Travel Expense Certificate" (hereinafter referred to as the "Travel Form") in conjunction with the payment of travel expenses of Commissioners. The Travel Form was to be used by Commissioners to obtain reimbursement of travel expenses a Commissioner incurred and paid for out of the Commissioner's own resources. See Advocate's exhibit 4A and 4B, a photocopy of Travel Forms used by Mr. Costage.

      
      

   6. On the back of the Travel Form were instructions concerning how to complete the form and "Travel Expenses Regulations." Among other things, the following was printed on the back of the Travel Form:

      Traveling expenses shall be limited to those expenses incurred in the performance of a public purpose authorized by law to be performed and must be within the limitations prescribed below. . . .

      
      

      . . . .

      
      

      Certificate: "I certify that the expenses shown herein were necessary and actually incurred during, authorized travel in performance of official duty and the claim made herewith is true and correct in every manner."

      
      

   7. The City had established policies governing reimbursement of travel incurred by Commissioners. Some of those polices were in writing, having been included on the back of the Travel Form. The evidence failed to prove that the City, however, always strictly enforced its policies.

      
      

   8. Because of alleged problems associated with travel expenses paid by the City, including the issues in this case, the City adopted more extensive written travel policies by Resolution adopted November 20, 1989.

      
      

3. Travel Expenses of Family Members.

   
   

   1. Commissioners, at times, took family members, including spouses, with them while traveling on City business.

      
      

   2. The City also, at times, made travel arrangements for family members and made advance payments of travel expenses for family members.

      
      

   3. It was the policy of the City that travel expenses of family members of Commissioners were not "expenses necessarily incurred in the performance of a public purpose authorized by law to be performed . . . ." Therefore, the City expected reimbursement of travel expenses incurred by family members.

      
      

   4. Although the City's policy concerning the payment of travel expenses of family members set out in finding of fact 15 was not specifically stated in writing, the general policy contained on the back of the Travel Form is sufficient to put a reasonable person on notice that they should determine whether a family member's travel expenses are "necessarily incurred in the performance of a public purpose authorized by law to be performed "

      
      

   5. It was not the policy of the City that travel expenses of spouses or other family members of a Commissioner incurred while the Commissioner was traveling on City business were to be borne by the City.

      
      

   6. The City did not require reimbursement for certain travel expenses incurred by a Commissioner which also benefited a family member of the Commissioner. Those expenses were limited to expenses which would generally have been incurred by the Commissioner regardless of the presence of the family member on the trip, i.e., the cost of a rental vehicle.

      
      

4. Travel Expenses Incurred by Mr. Costage's Spouse Paid by the City.

   1. At issue in this proceeding is the period of time between March, 1986 and November 20, 1989, when the City adopted a written policy clearing setting out more extensive travel policies of the City.

      
      

   2. During the period of time at issue in this case, and while Mr. Costage was a Commissioner, his wife of thirty-seven years accompanied him on trips he took on City business.

      
      

   3. The City paid Mrs. Costage's travel expenses directly to the vendor when making travel arrangements or it paid travel expenses attributable to Mrs. Costage charged on the credit card provided to Mr. Costage by the City for his use.

      
      

   4. On at least one occasion, the cost of a helicopter trip over the Grand Canyon incurred by Mr. and Mrs. Costage was paid for by the City.

      
      

   5. Mr. Costage took no immediate action to reimburse the City for travel expenses paid by the City for Mrs. Costage's travel. Not until well after Mr. Costage was questioned publicly about the expenses paid by the City for Mrs. Costage's travel did Mr. Costage reimburse the City for her travel expenses.

      
      

5. Mr. Costage's Payment of Mrs. Costage's Travel Expenses to the City.

   
   

   1. During Mr. Costage's campaign for reelection to the City Commission in the Spring of 1990, the propriety of the payment of the City of travel expenses incurred by Mr. Costage's spouse was questioned.

      
      

   2. As a result of the issue being raised, Mr. Costage requested that the City Manager determine the amount of travel expenses which the City had paid for Mrs. Costage's travel. This request was made in approximately March, 1990. The City Manager then requested and received an accounting from the City finance department.

      
      

   3. Based upon the records of the City finance department, it was initially determined that a total of approximately $3,100.00 in travel expenses attributable to Mrs. Costage had been paid by the City and had not been repaid by Mr. Costage.

      
      

   4. Mr. Costage was apprised of the City finance department's determination in approximately March, 1990. Mr. Costage asserted that the correct amount was about half the $3,100.00 amount arrived at by the City finance department. No reimbursement was made in March, 1990.

      
      

   5. At about the same time that Mr. Costage was informed of the amount of travel expenses attributable to his spouse, the Pinellas County Sheriff's Office began an investigation into the City's payment of travel expenses on behalf of family members of Commissioners and others. This was a general investigation, not limited to any one Commissioner or individual. As a consequence of the investigation, Mr. Costage took no further action to reimburse the City for the expenses paid on behalf of his spouse.

      
      

   6. Subsequent to the completion of the Sheriff's Office investigation, Mr. Costage again discussed the amount of his spouse's travel expenses with the City and it was mutually agreed that the correct amount of unreimbursed travel

      expenses paid by the City for Mrs. Costage was $2,974.63. Mr. Costage reimbursed the City this amount in February, 1991.

      
      

6. Mr. Costage's Knowledge of the City's Policy Concerning the Payment of Family Member Travel Expenses.

   
   

   1. Mr. Costage has suggested that he did not violate Section 112.313(6), Florida Statutes, because of his assertion that the City did not have a policy that required him to pay for his spouse's travel expenses--that the City practice was just the opposite. He also has asserted that, if the City had such a policy, he was never informed that he was required to repay his spouse's travel expenses and he was not otherwise aware of such a requirement. These assertions are not supported by the weight of the evidence.

      
      

   2. First, the assertion that no policy requiring reimbursement of family- member travel expenses existed is contrary to the weight of the evidence:

      
      

      1. The statements on the back of the Travel Form are sufficient to place a reasonable person on notice that such expenses should not be paid for by the City. The statements are, at the very least, sufficient that it would be unreasonable for Mr. Costage to simply assume that his spouse's travel was "incurred in the performance of a public purpose authorized by law";

         
         

      2. Several other Commissioners who served during at least part of the period that Mr. Costage was a Commissioner were specifically told that travel expenses incurred by family members of Commissioners were required to be repaid to the City by the Commissioner. See the testimony of Commissioners Caldemeyer, Cincota and Baty, City Mayor Dettmer and City Mayor Levine.

      
      

   3. Mr. Costage's assertion that it was the practice, if not the policy, of the City that travel expenses of family members were to be paid by the City is also not supported by the weight of the evidence:

      
      

      1. Except for Mr. Costage and former Commissioner McLaughlin, all the City officials who served during the period of time at issue and who testified at the final hearing of this matter indicated that they were aware that they were ultimately responsible for travel expenses incurred by family members and that the City did not pay those expenses;

         
         

      2. The evidence failed to prove that travel expenses of family members other than those attributable to Mr. Costage's spouse and possibly Mr. McLaughlin's spouse were paid for by the City without reimbursement;

         
         

      3. If the City had a policy of paying for spouse travel expenses without requiring reimbursement, why then did Mr. Costage ultimately repay the City almost $3,000.00? He repaid the expenses because he knew City policy required reimbursement and because his use of public funds for his spouse's benefit had been exposed;

         
         

      4. At best, the evidence proved that the City did not strictly enforce the policy that travel expenses were only to be paid with public funds if they were incurred for a public purpose. As a consequence of the City's lack of strict enforcement, Mr. Costage was able to avoid paying for his spouse's travel expenses from March, 1986 until February, 1991. The lack of enforcement of the City's travel policies, however, does not prove that the City had an established policy of paying the travel expenses of Commissioner's spouses. It only proved

      that City employees failed to question members of the City's governing body about their actions.

      
      

   4. The weight of the evidence also proved that Mr. Costage, despite his assertions to the contrary, was told and/or was aware of the City's policy requiring reimbursement of travel expenses of spouses:

      
      

      1. First, it is concluded that Mr. Costage was aware of the instructions on the back of the Travel Form:

         
         

         1. Mr. Costage filed two Travel Forms for which he received reimbursement of expenses incurred in 1986 and 1987. Although Mr. Costage was not able to say absolutely that the signature on the Travel Forms (Advocate's exhibit 4A and 4B) was his signature, he was also not able to say that it was not his signature and he acknowledged that the signatures could be his. It is, therefore, concluded that the two Travel Forms were signed and submitted by Mr. Costage. This conclusion is further supported by the fact that one other Commissioner witnessed Mr. Costage filing a Travel Form;

            
            

         2. Although on infrequent occasions a copy of a Travel Form without the back of the form was used by City personnel, it was the prevailing practice, especially of individuals such as Commissioners who were located in City Hall, to file an original three part Travel Form which included the instructions.

         
         

      2. Secondly, it is inferred from the following that Mr. Costage received instructions from the City Manager shortly after he was elected concerning the City's travel policies, including the policy concerning travel expenses of spouses:

         
         

         1. It was the City Manager's common practice and procedure to discuss, or cause to be discussed, City policies and procedures, including those governing spouse travel expenses, with all new Commissioners;

            
            

         2. All of the Commissioners who served during the period of time at issue and who testified in the final hearing, except Mr. Costage, recalled meeting with the City Manager or, at the City Manager's direction, the City's finance director, and discussing travel procedures. All of these Commissioners, except Mr. McLaughlin, recall being told that family travel expenses were to be paid by the Commissioner. Even Mr. McLaughlin admitted that he had been told that travel expenses attributable to his children were to be reimbursed by him. Mr. McLaughlin's testimony that the City policy concerning the payment of spouse travel expenses was not credible, especially in light of the ongoing litigation between Mr. McLaughlin and the City over travel expenses of Mrs. McLaughlin paid for by the City.

         
         

      3. While on a break during a budget workshop in 1986 or 1987, Mrs. Costage remarked in the presence of Mr. Costage and others that she thought the City should pay for the travel expenses of spouses of Commissioners because of all that the spouses did on behalf of the City. Mr. Costage did not indicate, as he has asserted in this proceeding, that the City already had a policy of paying for spouse travel expenses. The statement is also contrary to Mr. Costage's assertion that he was unaware of the actual policy of the City requiring that Commissioners ultimately pay for their spouse's travel;

         
         

      4. In 1987, Arthur Levine ran against Alton Dettmer for the position of City Mayor. At some time before the election Mr. Costage advised Mr. Levine to look into Mr. Dettmer's travel expense reports, implying that there was

         something wrong with the manner in which Mr. Dettmer had been paid for travel expenses. This act by Mr. Costage supports a finding that Mr. Costage was aware that the City had at least some policies governing travel.

         
         

7. Benefit of Spouses Travel Expenses to Mr. Costage.

1. Based upon the conclusion that Mr. Costage was aware that the City's policy required that he pay for Mrs. Costage's travel expenses and the fact that Mr. Costage did not pay for almost $3,000.00 in expenses incurred during the period March, 1986 through November 20, 1989, until February, 1991, it is concluded that Mr. Costage was aware that his failure to pay Mrs. Costage's travel expenses would be a financial benefit to him.

   
   

   CONCLUSIONS OF LAW

   
   

   1. Jurisdiction and Burden of Proof.

      
      

2. The Division of Administrative Hearings has jurisdiction of the parties to and the subject matter of this proceeding. Section 120.57(1), Florida Statutes (1991). Section 112.322, Florida Statutes, and Rule 34-5.0015, Florida Administrative Code, authorize the Commission to conduct investigations and make public reports on complaints concerning violations of Part III, Chapter 112, Florida Statutes (the "Code of Ethics for Public Officers and Employees").

   
   

3. 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

   249 (Fla. 1st DCA 1977). In this proceeding it is the Commission, through the Advocate, that is asserting the affirmative: that Mr. Costage violated Section 112.313(6), Florida Statutes. Therefore, the burden of proving the elements of Mr. Costage's alleged violation was on the Commission.

   
   

4. The Commission has ruled that the standard of proof in cases before it require that the Commission prove its charges by a preponderance of the evidence. In Re Michael Langton, Complaint No 90-86 (Final Order, January 28, 1992). See also, In Re Leo C. Nicholas, 11 F.A.L.R. 5234 (1989).

   
   

   1. Mr. Costage's Alleged Violation of Section 112.313(6), Florida Statutes.

      
      

5. Section 112.313(6), Florida Statutes, provides, in pertinent part, the following:

   
   

   (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.

   
   

6. In order for it to be concluded that Mr. Costage violated Section 112.313(6), Florida Statutes, proof of the following elements must be presented:

   1. Mr. Costage must have been either a public officer or public employee;

      
      

   2. Mr. Costage must have used, or attempted to use, his official position or property or resources within his trust, or performed his official duties:

      
      

      1. Corruptly; and

         
         

      2. With an intent to secure a special privilege, benefit or exemption for himself or others.

1. The First Element: Public Officer or Public Employee.

   
   

   1. Section 112.313(1), Florida Statutes, defines the terms "public officer" to include "any person elected or appointed to hold office in any agency . . . ." An "agency" is defined in Section 112.312(2), Florida Statutes, to mean "any state, regional, county, local, or municipal government entity of this state, whether executive, judicial, or legislative "

      
      

   2. The evidence proved that Mr. Costage was elected to serve on the City Commission. Mr. Costage, therefore, was a "public officer" for purposes of Section 112.313(6), Florida Statutes.

      
      

2. The Second Element: Use of Official Position or Property or Resources.

   
   

   1. The second element of a violation of Section 112.313(6), Florida Statutes, has also been proved. The evidence proved that Mr. Costage used his official position as a Commissioner to travel on City business. While traveling on City business Mr. Costage was accompanied by Mrs. Costage and expenses attributable to her travel were paid by the City. Mr. Costage made no effort to reimburse the City for the payment of Mrs. Costage's travel expenses until over a year after he was questioned about the propriety of the City paying Mrs. Costage's expenses. It was because of his position as a Commissioner that Mr. Costage was able to take these actions.

      
      

   2. The evidence also proved that Mr. Costage's use of his official position was done corruptly and with the intent of securing a special privilege or benefit for himself or others. The term "corruptly" is defined in Section 112.313(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.

      
      

   3. The evidence in this case proved that Mr. Costage knew that it was against City policy to allow the City to pay for travel expenses incurred for Mrs. Costage's travel. Even if the evidence had proved that the City's policy

      had not been explained to Mr. Costage, he should still have known that it was wrong to use public funds to pay for his spouse's travel. At the very least, Mr. Costage should have asked. Mr. Costage, however, took advantage of the City's failure to consistently enforce its travel policy and the power of his position as a Commissioner.

      
      

   4. Finally, the evidence proved that Mr. Costage intended to secure a financial benefit for Mrs. Costage, and ultimately, for himself, by not paying for Mrs. Costage's travel expenses until he was forced to do so.

   
   

3. Conclusion.

   
   

   1. Mr. Costage has suggested in his proposed recommended order that the investigation, and failure to bring charges against Mr. Costage, by the Pinellas County Sheriff and the State Attorney's Office should be considered in this case. Mr. Costage fails to realize that the determination of local officials cannot be relied upon in this case in determining whether a violation of the Code of Ethics occurred. The possible violations involved are different (criminal codes vs. the Code of Ethics), the burden of proof in a criminal matter stricter than the burden of proof in this matter and, of greatest significance, the findings and conclusions of local officials in this matter constitute hearsay.

      
      

   2. Based upon the foregoing, it is concluded that Mr. Costage violated Section 112.313(6), Florida Statutes.

      
      

1. Penalty.

1. Section 112.317, Florida Statutes, provides penalties which may be imposed for a violation of the Code of Ethics for Public Officers and Employees. Section 112.317, Florida Statutes, provides, in pertinent part, the following:

   
   

   1. 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:

      
      

      . . . .

      
      

      (d) In the case of a former public officer or employee who has violated a provision applicable to former officers or employees or whose violation occurred prior to such officer's or employee's leaving public office or employment:

      
      

      1. Public censure and reprimand.

         
         

      2. A civil penalty not to exceed

         $5,000.00.

         
         

      3. Restitution of any pecuniary benefits received because of the violation committed.

      
      

2. The Advocate has recommended that Mr. Costage be subjected to public censure and reprimand. The Advocate has also recommended that a penalty of

   $2,974.65 be imposed on Mr. Costage in this matter. Restitution has not been requested because restitution has already been made.

   
   

3. The severity of Mr. Costage's offense cannot be minimized. Mr. Costage used public funds that, as a Commissioner, he was required to protect, for his own personal financial benefit. Mr. Costage was a member of the governing body of the City. He was, therefore, one of the most powerful people in City government. Mr. Costage took advantage of his power by failing to adhere to the travel policies of the City. As pointed out by the Advocate, Mr. Costage was responsible, at least in part, for the City's failure to strictly enforce travel reimbursement policies because he took no action as a member of the City's governing body to insure that the policies were enforced.

   
   

4. Based upon a consideration of all of the evidence in this case, it is concluded that Mr. Costage should be publicly censured and reprimanded. In light of the fact that Mr. Costage's violation of the Code of Ethics involved greed, it is also recommended that Mr. Costage be required to pay a civil penalty of $3,000.00.

RECOMMENDATION

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 finding that the Respondent, George Costage violated Section 112.313(6),

Florida Statutes, as alleged in Complaint No. 91-37. It is further

RECOMMENDED that Mr. Costage be publicly censured and reprimanded. It is further

RECOMMENDED that Mr. Costage be required to pay a civil penalty of

$3,000.00.

DONE and ENTERED this 24th day of September, 1992, 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 24th day of September, 1992.

APPENDIX

Case Number 92-1007EC

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.

C

11 28. The last sentence is hearsay. 12 29.

D

1-2 33(a) and hereby accepted.

3-5 33(b).

6 Hereby accepted.

7 31-32 and 33(b).

8 33(b).

9 Hereby accepted.

10 33(c).

1. Not supported by the weight of the evidence.

2. Hereby accepted.

   13 33(d).

   14 33.

   
   

   Mr. Costage's Proposed Findings of Fact

   
   

   Mr. Costage's proposed "Findings of Fact" consists primarily of a summary of the testimony of the witnesses and not the ultimate facts which the testimony

   may support. In large part, the summary of testimony is accurate. It has been noted below where testimony has been mischaracterized or where the testimony does not support the ultimate fact which the testimony may or may no support.

   
   

   Advocate's Witnesses:

   
   

   1. Constitutes a generally accurate summary of testimony.

   2. Constitutes a generally accurate summary of testimony. The second sentence is not, however, relevant. The suggestion in the next to the last sentence that "no reimbursement was sought" is not supported by the weight of the evidence.

   3. Constitutes a generally accurate summary of testimony. The last sentence is not relevant and/or is not supported by the weight of the evidence.

   4. Constitutes a generally accurate summary of testimony. Whether Mr. Caldemeyer's testimony was "repetitious" is not relevant.

   5. Constitutes a generally accurate summary of testimony.

   6. Constitutes a generally accurate summary of testimony. The last sentence is hearsay.

Mr. Costage's Witnesses:

1. Constitutes a generally accurate summary of testimony. Ms. Adkins testimony involved a period of time subsequent to the period of time at issue in this proceeding. Consequently, her testimony was not of much relevance. Nor was her testimony concerning what others did supported by the weight of the evidence.

2. Not supported by the weight of the evidence.

3. Constitutes a generally accurate summary of testimony. Mr. Costage's testimony was generally not supported by the weight of the evidence or was not relevant. The first three sentences are not supported by the weight of the evidence. The fourth sentence has been generally accepted in finding of fact 14. The fifth through seventh sentences are not relevant. With regard to the last sentence, see findings of fact 24- 29.

Mr. Costage's proposed findings of fact end on page 7 of Mr. Costage's proposed recommended order. Beginning on page 7, Mr. Costage has provided argument and conclusions of law.

COPIES FURNISHED:

Virlindia Doss

Assistant Attorney General Department of Legal Affairs The Capitol, Suite 101

Tallahassee, Florida 32399-1050

George A. Routh, Esquire George A. Routh, P.A.

1446 Court Street

Clearwater, Florida 34616

Bonnie J. Williams, Executive Director Commission on Ethics

The Capitol, Room 2105

P. O. 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.

Docket for Case No: 92-001007EC

Orders for Case No: 92-001007EC