STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

IN RE: LEONARD NORSWORTHY, )

)

Respondent. ) CASE NO. 92-5712EC

)

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Mary Clark, conducted a formal public hearing in the above styled case on March 9, 1993, in Cottondale, Florida.

APPEARANCES

For the Ethics Craig Willis, Esquire Commission Michael Ingraham, Esquire Advocate: Department of Legal Affairs

The Capitol, Suite 1502 Tallahassee, Florida 32399

For Respondent: Leonard Norsworthy, pro se

Post Office Box 299 Cottondale, Florida 32431

STATEMENT OF THE ISSUE

In an order dated January 29, 1992, the State of Florida, Commission on Ethics found probable cause that the Respondent, as a city commissioner of the City of Cottondale, violated Section 112.313(7)(a), Florida Statutes, by having a contractual relationship with a business entity which was doing business with the city. The issue in this proceeding is whether the violation occurred and, if so, what penalty should be recommended.

PRELIMINARY STATEMENT

After the case was referred to the Division of Administrative Hearings, notice was provided that the public hearing would be conducted in Marianna, Florida. Venue was later changed to the City of Cottondale at the parties' request.

At the hearing, the Acting Advocate presented testimony from the following witnesses: George D. "Pete" Hilton, Jr., Patricia Kirkland, Charles C. Williams, Jr. and Leonard Norsworthy. Exhibits 1 and 3-7 were received in evidence without objection.

Mr. Norsworthy also testified in his own behalf and presented the testimony of Horace Deese. Cottondale Police Chief William Watford, and Mr. Hilton and Ms. Kirkland spoke in support of Mr. Norsworthy.

A transcript was not filed, and the parties waived filing proposed recommended orders.

FINDINGS OF FACT

1. Leonard Norsworthy served two two-year terms as a city commissioner for the City of Cottondale, a small community in the Florida panhandle. His tenure spanned from 1987 until July 1991.

   
   

2. Mr. Norsworthy is sole proprietor of J. & L. Housepainting and Remodeling (J & L), a roofing and remodeling business. He has a State of Florida contractor's license.

   
   

3. Sometime in 1990, the City of Cottondale, through its grants coordinator in Tallahassee, sought and obtained Community Development Block Grant (CDBG) funds for various needed public works.

   
   

   The project was advertised, and a bid was awarded to T & A Utilities Contractors, Inc. (T & A), a Lynn Haven, Florida, firm owned by Charles Williams.

   
   

4. The total contracted amount of $244,282 included resurfacing two streets, a parking lot, a children's park, 8-inch water lines, and renovations to the city hall.

   
   

5. Not all of the work was done immediately, as the city needed to get various permits. Due to changes in the scope of work, additional money became available for other projects, including renovating a public bathroom to make it accessible for handicapped persons. Some of the work was subcontracted by T & A to other firms.

   
   

6. Charles Williams did not advertise for bids for the subcontracted work, but obtained proposals. He had obtained proposals from some Panama City firms for the bathroom and city hall renovations because he was not aware of firms closer to Cottondale.

   
   

7. "Pete" Hilton was Cottondale's Public Works Director for eight years until he left in October 1992 for medical reasons.

   
   

   He told Charles Williams that he knew someone who could do the work for a good price, and shortly thereafter Leonard Norsworthy called Williams.

   
   

8. Mr. Norsworthy's proposal was less than the prices quoted by the Panama City firms, and on June 5, 1991, T & A subcontracted with J & L for the renovation work for a total amount of $8,460. The sum was paid in three releases.

   
   

9. The jobs performed by Mr. Norsworthy under the subcontract included redoing the bathroom and a handicap ramp entrance, installing rain gutters, removing a wall and plastering and finishing a wall. At no charge for his labor, Mr. Norsworthy also painted the building.

   
   

10. Leonard Norsworthy knew about the city's revitalization contract with T & A because he was a city commissioner at the time. While the city was a party to the contract, the specifications and the background work were handled by the city engineer, who recommended the award to T & A.

    
    

11. Leonard Norsworthy admits that he did the work and says, "You live and learn." He concedes that there are others in the area who could have done the

    work, but believes he gave a good price for the job. He says that work is scarce in the area and you have to take it where you find it.

    
    

    He knew that the law prohibited doing business with one's own agency, but he had no idea that the prohibition extended to subcontracts as well.

    
    

    CONCLUSIONS OF LAW

    
    

12. The Division of Administrative Hearings has jurisdiction in this proceeding pursuant to Section 120.57(1), Florida Statutes, and Florida Commission on Ethics Rule 34-5.010, Florida Administrative Code.

    
    

13. Section 112.313(7)(a), Florida Statutes, provides:

    
    

    1. CONFLICTING EMPLOYMENT OR CONTRACTUAL RELATIONSHIP--

       1. No public officer or employee of an agency shall have or hold any employment or contractual relationship with any business entity or any agency which is subject to the regulation of, or is doing business with, an agency of which he is an officer or employee, excluding those organizations and their officers who, when acting in their official capacity, enter into or negotiate a collective bargaining contract with the state or any municipality, county, or other political subdivision of the state; nor shall an officer or employee of an agency have or hold any employment or contractual relationship that will create a continuing or frequently recurring conflict between his private interests and the performance of his public duties or that would impede the full and faithful discharge of his public duties. (Emphasis added)

          
          

14. Section 112.313(3), Florida Statutes, is the provision, of which Respondent was aware, which forbids public officers from selling their services to their own agency.

    
    

15. As an elected commissioner, Respondent Norsworthy was a "public officer" of the City of Cottondale. Section 112.313(1), Florida Statutes.

    
    

16. Respondent Norsworthy violated Section 112.313(7)(a), Florida Statutes, when he subcontracted with T & A for work on that firm's community development contract with the city. In contrast to other provisions of the ethics code, knowledge or intent is not an element of the offense. See, for example, Section 112.313(6), Florida Statutes, which relates to "corrupt" use of a public officer's position to benefit himself or others.

    
    

17. Section 112.313(12), Florida Statutes, provides a series of exemptions from the prohibitions of Sections 112.313(3) and (7), Florida Statutes. None of those exemptions were proven applicable to the circumstances here. The exemptions include award of business on a rotation system, competitive sealed bids, a sole source purchase, or similar arrangements.

    PENALTY

    
    

18. In cases concerning a former public official who committed an ethics code violation prior to leaving office, the Commission on Ethics must report its findings and recommend appropriate action to the governing body of the applicable local government. Subsections 112.324(7)(c) and (h), Florida Statutes.

    
    

19. Subsection 112.317(1)(d), Florida Statutes, provides for one or more of these penalties in cases involving former public officers: public censure and reprimand, a civil penalty not to exceed $5,000, and restitution of any pecuniary benefits received because of the violations committed.

    
    

20. Some penalty is appropriate because the violation occurred, albeit isolated. The record does not expose how much actual pecuniary benefit Respondent Norsworthy received under the $8,460 subcontract. He performed the work, and presumably also incurred expenses. While his price was lower than the Panama City firms also interested in the job, it is unknown whether an even greater savings could have been realized if some other local contractor had been given the opportunity to compete formally or informally. The statutory prohibition recognizes an opportunity for abuse, even when actual abuse is not manifest.

    
    

21. Size of the community and its lack of sophistication does not wholly exonerate officials who, however altruistically motivated to public service, must still serve their constituents by educating themselves and adhering to the law.

    
    

22. Prior decisions of the Ethics Commission provide some guidance for recommending an appropriate penalty. In In re: Joseph G. Spicola, DOAH Case No. 91-6730EC, Final Order entered June 11, 1992, the Commission on Ethics recommended a civil penalty of $10,000 against an attorney with 30 year's experience who violated Sections 112.313(3) and (7), Florida Statutes, over a period of a year and a half by referring his agency's business to a law firm in which he owned fifty percent interest.

    
    

23. In rejecting the hearing officer's recommendation of a $4,000 penalty as a "mere slap on the wrist," the Commission discussed the attorney's substantial experience and the continuing nature of the offense. The Commission also compared another prior case, In Re: Walter Stotesbury, complaint No. 89- 160, 14 FALR 1017 (1991), wherein a $5,000 penalty was recommended for two isolated violations by an airport authority member who did business with and sold securities to an individual who held a fixed base operator's lease at the airport. In the Stotesbury case, unlike the case here, there was a specific finding of pressure imposed by the official for a $100,000 investment.

    
    

24. Respondent's violation in this case is similar in kind, but not in degree, and a substantially lesser penalty is recommended.

RECOMMENDATION

Based on the foregoing, it is hereby, RECOMMENDED:

That the Commission enter its final order and public report finding that Leonard Norsworthy violated Section 112.313(7), Florida Statutes, and recommending a penalty of $300.00.

DONE AND ENTERED in Tallahassee, Leon County, Florida, this 12th day of April 1993.

MARY CLARK

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 12th day of April 1993.

COPIES FURNISHED:

Craig Willis, Esquire Michael Ingraham, Esquire Department of Legal Affairs The Capitol, Suite 1502 Tallahassee, Florida 32399

Leonard Norsworthy Post Office Box 299

Cottondale, Florida 32431

Bonnie Williams, Executive Director Ethics Commission

Post Office Box 6

Tallahassee, Florida 32302-0006

Phil Claypool, General Counsel Ethics Commission

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.

Docket for Case No: 92-005712EC

Orders for Case No: 92-005712EC