STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

IN RE: RUBIN DELEON, )

) CASE NO. 92-6265EC

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Mary Clark, held a formal hearing in the above- styled case on January 4, 1993, in Tallahassee, Florida.

APPEARANCES

Acting Advocate for the

Commission on Ethics: Laura Rush

Assistant Attorney General Department of Legal Affairs The Capitol

Tallahassee, Florida 32399-1050

For Respondent: No appearance.

STATEMENT OF THE ISSUES

After investigation, an order was issued by the Commission on Ethics on January 24, 1992, finding probable cause that Respondent, Rubin DeLeon, violated Section 112.3145, F.S. by failing to file a statement of financial interests for the year 1989. The issue in this public hearing, therefore, is whether the violation occurred, and if so, what penalty should be recommended.

PRELIMINARY STATEMENT

On October 14, 1992, this case was forwarded to the Division of Administrative Hearings for conduct of the formal public hearing.

As requested by the Acting Advocate in response to a notice of assignment and order, and in the absence of response by Rubin DeLeon, the hearing was set in Tallahassee, Florida. The Notice of Hearing dated November 6, 1992 provided that Respondent could participate by telephone if he requested such in writing seven days in advance. No request was made.

Nor did Mr. DeLeon appear at the public hearing as scheduled. According to the Acting Advocate, numerous attempts were made to contact Mr. DeLeon by mail and by telephone, without success.

The Acting Advocate presented the testimony of Shirley Taylor, Financial Disclosure Coordinator for the Commission on Ethics, and no exhibits. The Acting Advocate also made a recommendation for penalty.

FINDINGS OF FACT

1. In a list submitted to Shirley Taylor, Financial Disclosure Coordinator for the Florida Commission on Ethics, the City of Lantana, Florida, identified Rubin DeLeon as a member of the Lantana Civil Service Board.

   
   

2. In a list submitted to the Ethics Commission on October 3, 1990, Rubin DeLeon was identified as an officer who failed to file a statement of financial disclosure for the year 1989.

   
   

3. To date, Rubin DeLeon has still failed to file the required disclosure, to the best of the knowledge and belief of Shirley Taylor.

   
   

   CONCLUSIONS OF LAW

   
   

4. The Division of Administrative Hearings has jurisdiction in this proceeding pursuant to Section 120.57(1), F.S. and Rule 34-5.010, F.A.C.

   
   

5. Section 112.3145(2)(b), F.S. provides, in pertinent part:

   
   

   (b) Each state or local officer and each specified state employee shall file a statement of financial interests no later than July 1 of each year. Each state or local officer who is appointed and each

   specified state employee who is employed shall file a statement of financial interests within

   30 days from the date of appointment.

   
   

6. "Local Officer" is defined in Section 112.3145(1)(a)2. F.S. as:

   
   

   2. Any appointed member of a board; commission; authority, including any expressway authority or transportation authority established by general law; community college district board of trustees; or council of any political subdivision of

   the state, excluding any member of an advisory body. A governmental body with land-planning, zoning, or natural resources responsibilities shall not be considered an advisory body.

   
   

7. A member of the Lantana Civil Service Board is a "local public officer" required to file a statement of financial interest with the supervisor of elections of the county in which he permanently resides. Section 112.3145(2)(c), F.S.

   
   

8. (d) Not later than 30 days following September 1 of each year, the Secretary of State and the supervisor of elections in each county shall certify to the Commission on Ethics a list of the names and addresses of, and the offices or positions held by, all persons who have failed to timely file the required statements of financial interests. The certification shall be on a form prescribed by the commission and shall

   indicate whether the respective certifying official has provided the disclosure forms and notice as required by this subsection to all persons named on the delinquency list.

   
   

   112.3145(6)(d), F.S.

   
   

9. The only evidence offered at this public hearing was the testimony of Shirley Taylor, the commission staffperson responsible for preparing, receiving, and maintaining records related to the disclosures under Section 112.3145, F.S. The report she received from the supervisor of elections was not placed in evidence. Her testimony is hearsay, and may not be a basis for finding of fact. Section 120.58(1)(a), F.S. The report, on the other hand, with proper predicate would be a public record exception to the hearsay rule pursuant to Section 90.803(8), F.S.

   
   

10. Notwithstanding the summary nature of this proceeding, the Hearing Officer is reluctantly compelled to make the recommendation below, based on lack of nonhearsay evidence and based on a series of very similar Ethics Commission cases. Those cases also involved violations of Section 112.3145, F.S., and the public hearings were conducted by Mark Herron, then member of the Commission on Ethics, serving as Hearing Officer. The Respondents did not appear and the Public Advocate was given the opportunity to present a prima facie case. The recommended report in each case recommended dismissal on this basis:

* * *

6. The evidence does not demonstrate, however, that the Respondent failed to file the required statement of financial interests in a timely manner as specified by Section 112.3145, Florida Statutes. Although this matter was commenced as a result of a certified list of those public officers who had not filed the required statement of financial interests, compiled by the Supervisor of Elections of Palm Beach County, that list was not offered into evidence. By law, that certified list was to be forwarded to the Commission on Ethics.

(Section 112.3145(5)(d), Florida Statutes)

It is improper for a hearing officer, agency, or commission to base its decisions or findings upon facts gathered form its own records without introducing those records into evidence. Thorn v. Florida Real Estate

Commission, 146 So. 2d 907 (Fla. 2nd DCA 1962).

* * *

In each case the Commission on Ethics adopted as its final order the recommended report and dismissed the complaint. See, In Re: Doris Tucker, 9 FALR 4088 (final order entered 9/22/86); In Re: John H. Thomas, Jr., 9 FALR 4094 (final order entered 9/22/86); In Re: Robert Powers, 9 FALR 4107 (final order entered 9/22/86); In Re: Robert J. McDonald, 9 FALR 4113 (final order entered 9/22/86).

RECOMMENDATION

Based on the foregoing, it is hereby, RECOMMENDED:

That the Commission on Ethics enter its Final Order and Public Report finding insufficient evidence to conclude that the Respondent, Rubin DeLeon, violated Section 112.3145, F.S. and dismissing the complaint.

DONE AND RECOMMENDED this 8th day of January, 1993, in Tallahassee, Leon County, Florida.

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 8th day of January, 1993.

COPIES FURNISHED:

Laura Rush

Asst. Atty. General Acting Advocate for the Commission on Ethics Dept. of Legal Affairs The Capitol

Tallahassee, FL 32399-1050

Rubin DeLeon

310 West Palm Street Lantana, FL 33462

Bonnie Williams, Executive Director Ethics Commission

P.O. Box 6

Tallahassee, FL 32302-0006

Phil Claypool, General Counsel Ethics Commission

P.O. Box 6

Tallahassee, FL 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: 92-006265EC

Orders for Case No: 92-006265EC