STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

In Re: EMIL DANCIU CASE NO. 94-2641EC

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RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Susan B. Kirkland, held a formal hearing in this case on August 16, 1994, in Boca Raton, Florida.

APPEARANCES

For Advocate: Virlindia Doss

Assistant Attorney General The Capitol, PL-01

Tallahassee, Florida 32399-1050

For Respondent: Jeff Brown

LaValle, Brown, Ronan, P.A. The Sanctuary, Building D

4800 North Federal Highway, Suite 300 Post Office Box 3004

Boca Raton, Florida 33431-5178 STATEMENT OF THE ISSUES

Whether Respondent violated Section 112.3148(4), Florida Statutes, and, if so, what penalty should be imposed.

PRELIMINARY STATEMENT

On September 8, 1993, the Florida Commission on Ethics issued an Order Finding Probable Cause to believe that Respondent violated Section 112.3148(4), Florida Statutes, and ordered a public hearing to determine whether Respondent , as Mayor of the City of Boca Raton, violated Section 112.3148(4), Florida Statutes, by accepting a gift with a value in excess of $100 from a lobbyist who lobbied his agency. The case was forwarded to the Division of Administrative Hearings for assignment to a hearing officer on May 12, 1994.

At the final hearing the parties stipulated to the facts set forth in paragraphs 1 through 7 of Section D of the Prehearing Stipulations and stipulated that Danciu was at all times pertinent to the Compliant a public officer or employee subject to the Code of Ethics for Public Officers and Employees.

At the final hearing, the Advocate called the following witnesses, Alan Alford, Albert Travasos, and Frank Bartolone and presented the deposition testimony of Emil Danciu and Robert Sweetapple. Advocate Exhibits 1-38 were admitted in evidence. The Respondent testified on his own behalf. Respondent Exhibits 1-6 were admitted in evidence.

At the final hearing, the parties agreed to file proposed recommended orders by September 7, 1994. No transcript was filed. The proposed recommended orders were timely filed. The parties' proposed findings of fact are addressed in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. The Respondent, Emil Danciu (Danciu), served as Mayor of the City of Boca Raton (City) from March 1987 until March 1993.

   
   

2. During the time that Danciu served as Mayor, the Mayor was a voting member of the City Council and acted with authority equal to that of the other council members.

   
   

3. The Boca Raton Community Development Agency (CRA) is an agency established to revitalize and redevelop the downtown area of Boca Raton.

   
   

4. The CRA is governed by a five member board of commissioners which, as of February 4, 1991, includes the five members of the Boca Raton City Council.

   
   

5. As Mayor, Danciu was also a member of the CRA Board of Commissioners.

   
   

6. In April, 1992, the majority of the members of the CRA voted to accept a proposal from Crocker Mizner Park III, LTD. (Crocker) to lease and construct a department store on property located in Mizner Park which had been designated for cultural use in the community redevelopment plan. Danciu, as Mayor and as a member of the board of the CRA, objected to the proposed lease to Crocker. Danciu felt that the CRA's action to enter into the lease was in violation of Chapter 163, Florida Statutes, because the community redevelopment plan had not been modified as required by Chapter 163.

   
   

7. Danciu went to see Robert Sweetapple, an attorney, concerning the actions to lease land to Crocker. Mr. Sweetapple agreed with Danciu's analysis. Danciu advised Mr. Sweetapple that he wanted a lawsuit filed so that the circuit court could determine the legality of the actions relating to the lease. Mr. Sweetapple agreed to represent Danciu in the matter and filed a Petition for Declaratory Judgement and Injunction against the City and the CRA in April, 1992. The suit was filed on Danciu's behalf as the Mayor of the City and as a member of the CRA.

   
   

8. Neither the City Council nor the CRA took action by resolution, ordinance, vote, or any other means to request that Danciu file the lawsuit.

   
   

9. On April 16, 1992, a special meeting of the CRA was held concerning Mizner Park. The CRA voted to employ legal counsel to defend the CRA against the lawsuit filed by Danciu.

   
   

10. On April 16, 1992, a special meeting of the Boca Raton City Council was held concerning the lawsuit that had been filed by Danciu. The City Council voted to retain an attorney to represent the City in the lawsuit. Separate attorneys were hired for the CRA and for the City in the defense of the lawsuit filed by Danciu.

    
    

11. The City and the CRA filed a Motion to Dismiss the lawsuit, challenging Danciu's authority to sue in his official capacity.

12. After Mr. Sweetapple filed the lawsuit, he went on vacation. While he was on vacation, Danciu and the City and the CRA were able to negotiate a settlement of the lawsuit. The lawsuit was settled prior to a ruling on the Motion to Dismiss. On his return from vacation, Mr. Sweetapple drafted the settlement agreement.

    
    

13. At the April 28, 1992 meeting of the City Council, where the settlement offer was accepted, the issue of attorney's fees was discussed. The City had incurred approximately $1,600 in fees and the CRA had incurred approximately $12,500. Mr. Crocker offered to pay the $12,500 incurred by the CRA and the $1,600 incurred by the City. His offer was accepted.

    
    

14. On April 30, 1992, the court dismissed the lawsuit with prejudice based on the stipulation of the parties. The parties were to bear their own costs and attorney's fees.

    
    

15. Mr. Sweetapple's legal services relating to the lawsuit was valued at

    $700.

    
    

16. On October 19, 1992, Danciu filed a Quarterly Gift Disclosure, Form 9, with the Florida Department of State, reporting Mr. Sweetapple's legal services as a gift.

    
    

17. Although Danciu did not originally intend to file such a disclosure, he made the filing after the City Attorney advised him to do so.

    
    

18. The City has no system for registration or designation of lobbyists.

    
    

19. In 1989 the CRA instituted an eminent domain action against James Batmasian. Mr. Sweetapple was retained as Mr. Batmasian's attorney. Mr. Sweetapple's representation of Mr. Batmasian included advancing his client's position at a meeting, and in telephone conversations, with City Council member Albert Travasos. Mr. Sweetapple also appeared before the CRA on behalf of Mr. Batmasian within the twelve months preceding the filing of the Petition for Declaratory Judgement and Injunction which is the subject of the instant Complaint. The City negotiated a settlement with Mr. Sweetapple regarding the fees to be paid him in the eminent domain suit involving Mr. Batmasian.

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

21. The burden of proof, absent a statutory directive to the contrary, is on the party asserting the affirmative of the issue in the proceeding. 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 Danciu violated Sections 112.3148(4), Florida Statutes. Therefore, the burden of establishing the elements of Danciu's alleged violation is on the Commission.

22. Section 112.3148(4), Florida Statutes, provides:

    
    

    (4) A reporting individual or procurement employee or any other person on his behalf is prohibited from knowingly accepting, directly

    or indirectly, a gift from a political committee or committee of continuous existence as defined in s. 106.11, or from a lobbyist who lobbies the reporting individual's or procurement employee's agency, or directly or indirectly on behalf of the partner, firm, employer, or principal of a lobbyist, if in excess of $100; however, such a gift may be accepted by such person on behalf of a governmental entity or charitable organization, the person receiving the gift shall not maintain custody of the gift for any period of time beyond that reasonably necessary to arrange for the transfer of custody and ownership of the gift.

    
    

23. Danciu has stipulated that at all times pertinent to this Complaint, he was a public officer or employee and therefore subject to the Code of Ethics for Public Officers and Employees. Danciu, as Mayor, was a reporting individual as that term is defined in Section 112.3148(2)(d), Florida Statutes.

    
    

24. The gift of legal services was valued in excess of $100.

    
    

25. Section 112.3148(2)(b), Florida Statutes, defines "lobbyist" as follows:

    
    

    1. ny natural person who, for compensation, seeks, or sought during the preceding 12 months, to influence the governmental decision making

       of a reporting individual or procurement employee or his agency or seeks, or sought during the preceding 12 months, to encourage the passage, defeat, or modification of any proposal or recommendation by the reporting individual or procurement employee or his agency. With respect to an agency that has established by rule, ordinance, or law a registration or designation process for persons seeking to influence decision making or to encourage the passage, defeat, or modification of any proposal or recommendation

       by such agency or an employee or official of the agency, the term "lobbyist" includes only a person who is required to be registered or otherwise designated as a lobbyist in accordance with such rule, ordinance, or law or who was during the preceding 12 months required to be registered

       or otherwise designated as a lobbyist in accordance with such rule, ordinance, or law.

       
       

26. Mr. Sweetapple was a lobbyist as that term is defined in Section 112.3148(2)(b), Florida Statutes. During the twelve months preceding the filing of the Petition for Declaratory Judgement and Injunction, Mr. Sweetapple, for compensation, sought to influence the decision making of the CRA regarding the valuation of the property of James Batmasian.

27. The Advocate has established that Danciu did accept a gift in excess of $100 from a lobbyist. The Advocate has established that Danciu knew that Mr. Sweetapple had sought to influence the decisions of the Danciu's agencies during the twelve months preceding the filing of the lawsuit and that Danciu knew that neither the City nor the CRA had given him the authority to either file the lawsuit or to retain counsel to represent Danciu in his official capacity, the City or the CRA.

    
    

28. Danciu argues that the acceptance of the legal services was not in violation of Section 112.3148(2)(b) because the legal services were accepted on behalf of the City and the CRA. Danciu's argument is without merit. It is clear that neither the City nor the CRA authorized Danciu as Mayor or as a member of the CRA to file a lawsuit against the City or the CRA. Nor is there evidence to support a finding that either the City or the CRA authorized Danciu to retain counsel to bring such a lawsuit. Thus, Danciu was without authority to accept a gift of legal services on behalf of the City or the CRA. In CEO 91-71, the Commission opined that the provision of legal services at no charge by the partner of an attorney who lobbies a county commission in the successful defense of a recall petition filed against a member of the commission is not prohibited by Section 112.3148(4) because the member would be entitled to public reimbursement for the cost of the services. The instant case differs from the circumstances set forth in CEO 91-71 because in the instant case,

    Danciu was not defending an action against him in his official capacity, but was suing his own agencies. Danciu had no authority to bring the suit and no authority to retain counsel on behalf of the City or the CRA. Having no authority to bring the lawsuit or to retain counsel, Danciu could not have obligated the City or the CRA to pay the attorney retained by Danciu. If neither the City nor the CRA would have been obligated to pay Mr. Sweetapple's fees, it is obvious that the provision of free legal services was not a gift to the City or the CRA. Additionally, there was no benefit to the City or to the CRA for free legal services of the attorney who is bringing a lawsuit against the City and the CRA, which challenges the positions taken by a majority of the City Council and the CRA. In fact, both the City and the CRA had to retain outside counsel to defend against Danciu's lawsuit.

    
    

29. The Advocate has established that Danciu violated Section 112.3148(4), Florida Statutes.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order and public report be entered finding that

Emil Danciu violated Section 112.3148(4), Florida Statutes, and that a civil

penalty of $1000 be imposed.

DONE AND ENTERED this 15th day of November, 1994, in Tallahassee, Leon County, Florida.

SUSAN B. KIRKLAND

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 15th day of November, 1994.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-2641EC

To comply with the requirements of Section 120.59(2), Florida Statutes (1993), the following rulings are made on the parties' proposed findings of fact:

Advocate's Proposed Findings of Fact.

1. Paragraph 1: Accepted in substance.

2. Paragraph 2: Rejected as unnecessary.

3. Paragraph 3: Accepted.

4. Paragraph 4: Accepted in substance.

5. Paragraph 5: Accepted.

6. Paragraph 6: Accepted in substance.

7. Paragraph 7: Rejected as subordinate to the facts actually found.

8. Paragraph 8: Accepted in substance.

9. Paragraph 9: The last sentence is rejected as unnecessary. The remainder of the paragraph is accepted in substance.

10. Paragraph 10: Rejected as unnecessary.

11. Paragraph 11: The first sentence is accepted in substance. The remainder is rejected as unnecessary.

12. Paragraph 12: Accepted in substance.

13. Paragraph 13: Rejected as subordinate to the facts actually found.

14. Paragraphs 14-15: Accepted in substance.

15. Paragraph 16: The first three sentences are rejected as unnecessary. The remainder is rejected as constituting argument.

16. Paragraphs 17-19: Accepted in substance.

17. Paragraph 20: The first two sentences are accepted in substance. The remainder is rejected as recitation of testimony.

18. Paragraphs 21-25: Accepted in substance.

19. Paragraphs 26-27: Rejected as constituting argument.

20. Paragraph 28: Accepted in substance.

21. Paragraphs 29-30: Rejected as constituting argument.

22. Paragraph 31: Rejected as unnecessary.

23. Paragraph 32: Accepted in substance.

24. Paragraph 33: Rejected as unnecessary.

25. Paragraphs 34-35: Accepted in substance.

26. Paragraphs 36-40: Rejected as unnecessary.

27. Paragraph 41: Rejected as constituting argument.

Respondent's Proposed Findings of Fact.

Respondent did not designate which portion of the proposed recommended order constituted findings of fact or conclusions of law; thus, I cannot address Respondent's findings of fact.

COPIES FURNISHED:

Virlindia Doss, Esquire Advocate For the Florida

Commission on Ethics Alexander Building, Suite 208 Koger Executive Center

Tallahassee, Florida 32399-1050

Carrie Stillman Complaint Coordinator Commission on Ethics Post Office Box 15709

Tallahassee, Florida 32317-5709

Jeff Brown, Esquire Sanctuary Centre, Suite D300 4800 North Federal Highway Post Office Box 3004

Boca Raton, Florida 33431-5178

Bonnie Williams Executive Director

Florida Commission On Ethics Post Office Drawer 15709 Tallahassee, Florida 32317-5709

Phil Claypool, Esquire General Counsel

Ethics Commission

2822 Remington Green Circle, Suite 101 Post Office Drawer 15709

Tallahassee, Florida 32317-5709

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 ten 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: 94-002641EC

Orders for Case No: 94-002641EC