Pursuant to notice, the Division of Administrative Hearings, by its duly designated Administrative Law Judge, Carolyn Holifield, held a formal hearing in this case on March 7, 1997, in Mexico Beach, Florida.
Advocate: Eric S. Scott
On October 15, 1996, the Florida Commission on Ethics (Commission) entered an Order Finding Probable Cause to believe that Respondent, Jim McCullough (Respondent), while serving on the Mexico Beach Planning and Zoning Board violated Sections
Before the formal hearing, the parties stipulated to facts which were admitted without proof at the hearing. The Advocate called one witness, Respondent, Jim McCullough. Respondent testified on his own behalf and called three witnesses: John McInnis, Garry Gaddis, and Melvin Ashcraft. The parties stipulated to the introduction of six joint exhibits. The proceeding was recorded but not transcribed.
All times pertinent to this proceeding, Respondent served as a member of the Mexico Beach Planning and Zoning Board (Zoning Board). Respondent began his service on the Board in mid-March, 1995. In that public position, Respondent was subject to the requirements of Part III, Chapter 112, Florida Statutes, the Code of Ethics for Public Officers and Employees.
Respondent owns and operates a marina in Mexico Beach, Florida which he sought to expand. To accomplish the expansion, Petitioner needed to purchase certain parcels of property adjacent to his marina and have the parcels rezoned from single
family residential to tourist commercial. If the Zoning Board granted the rezoning request, Respondent planned to buy the land and expand his business.
The Zoning Board is empowered to make decisions relative to the zoning or rezoning of property in Mexico Beach, Florida. Thus, on June 12, 1995, Respondent presented to the Board a request to rezone certain parcels of property adjacent to his marina from single family residential to tourist commercial.
Respondent participated in the Zoning Board's discussion on the matter. However, prior to his participation in the discussion, Respondent failed to formally announce his interest of the matter.
Respondent failed to file a written memorandum disclosing his interest in the matter prior to the June 12, 1995, Board meeting.
Respondent also failed to make an oral disclosure of his interest in the matter at the June 12, 1995 Board meeting.
Respondent abstained from voting on the rezoning request on June 12, 1995, but did not file a Memorandum of Voting Conflict with respect to the rezoning request within fifteen days of that meeting.
The matter was reheard by the Board on August 1, 1995. At that time, Respondent again made a presentation and requested that the Zoning Board rezone the property adjacent to his marina. Following his presentation, Respondent also participated in the Zoning Board's discussion of the matter. Respondent's objective
in participating in the discussion was to persuade the Zoning Board to grant the rezoning request. However, prior to his participating in the Zoning Board's discussion, Respondent failed to formally announce his interest in the matter.
Respondent did not file a written memorandum prior to the August 1, 1995, Zoning Board meeting disclosing his interest in the matter.
On August 1, 1995, Respondent abstained from voting on the rezoning request, but did not file a written memorandum disclosing his interest in the rezoning request within fifteen days of the Zoning Board meeting.
Respondent filed a Form 8B, Memorandum of Voting Conflict with respect to the rezoning matter, but did not do so until August 24, 1995.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties 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).
The burden of proof, absent a statutory directive to the contrary, is on the party asserting the affirmative of the issue of the proceedings. Department of Transportation v. J.W.C.
Co., Inc., 396 So.2d 778 (Fla. 1st DCA 1981); Balino v. Department of Health and Rehabilitative Service, 348 So.2d 349 (Fla. 1st DCA 1977). In this proceeding, the Commission, through its Advocate, is asserting the affirmative: that the Respondent violated Sections 112.3143(3)(a) and, 112.3143(4), Florida Statutes (Supp. 1994). Therefore, the Commission must establish by a preponderance of the evidence the elements of Respondent's alleged violations.
It has been alleged that Respondent violated Section 112.3143(4), Florida Statutes (Supp. 1994), by participating in a matter which would inure to his private gain without properly disclosing the nature of his interest and the nature of the conflict. Section 112.3143(4), Florida Statues (Supp. 1994), provides:
No appointed public officer shall participate in any matter which would inure to the officer's special private gain or loss; which the officer knows would inure to the special private gain or loss of any principal by whom he is retained or to the parent organization or subsidiary of a corporate principal by which he is retained; or which he knows would inure to the special private gain or loss of a relative or business associate of the public officer, without first disclosing the nature of his interest in the matter.
Such disclosure, indicating the nature of the conflict, shall be made in a written memorandum filed with the person responsible for recording the minutes of the meeting, prior to the meeting in which consideration of the matter will take place, and shall be incorporated into the minutes. Any such memorandum shall become a public record upon filing, shall immediately be provided to the other members of the agency, and shall be
read publicly at the next meeting held subsequent to the filing of this written memorandum. (Emphasis supplied.)
The term participation is defined by Section 112.3143(4), Florida Statutes (Supp. 1994), as follows:
(c) For purposes of this subsection, the term "participate" means any attempt to influence the decision by oral or written communication, whether made by the officer or at his direction.
In order for it to be concluded that the Respondent violated Section 112.3143(4), Florida Statutes (Supp. 1994), as alleged, the Advocate must establish the following elements:
Respondent must have been an appointed public officer.
The Respondent must have participated in a matter which would have inured to the Respondent's own special private gain without first disclosing the nature of his interest in the matter.
The Respondent must have failed to properly file a written memorandum indicating the nature of his conflict prior to the meeting at which the matter was to be considered.
The parties have stipulated that the Respondent, Jim McCullough, as a member of the Zoning Board, was subject to the requirements of Part III, Chapter 112, Florida Statutes.
To establish a violation of Section 112.3143(4)(a), Florida Statutes (Supp 1994), it must next be established that Respondent participated in a discussion as a member of the Zoning Board that inured to his special private gain without disclosing the nature of his interest.
It is undisputed that Respondent participated in the
Board's discussions regarding his rezoning requests on June 12 and August 1, 1995. The matters discussed inured to the Respondent's special private gain because he planned to purchase the property if it were rezoned in order to expand his marina.
Next, to establish a violation of Section 112.3143(4)(a), Florida Statutes (Supp. 1994), it must be proven that Respondent failed to file a written memorandum indicating the nature of his conflict prior to the meeting at which the matter was to be considered.
The evidence established that Respondent failed to properly disclose the nature of his interests in the matters being discussed. Respondent neither orally disclosed his conflict nor filed a written memorandum prior to the meeting. In this case, Respondent reasonably believed that all members of the Zoning Board knew that he owned the marina adjacent to the property that was being considered for rezoning. Likewise, Respondent explained at the meeting that the purpose of seeking the rezoning was to allow him to expand his business. Based on Respondent's presumption that everyone knew he would receive a special benefit if the rezoning request were granted and his understanding of his legal obligations in this situation, Respondent failed to properly disclose his interest as required by Section 112.3143(4)(a), Florida Statutes (Supp. 1994).
Notwithstanding, Respondent’s subjective understanding of what he was required to do in this instance, the requirements of Section 112.3143(4)(a), Florida Statutes (Supp. 1994), are
mandatory. Accordingly, where Respondent stood to inure a special benefit from the matters being considered by Zoning Board, prior to his participating in any discussion of the matter, he was obligated (1) to disclose such interest and, (2) to properly file a written memorandum indicating the nature of his conflict. His failure to do so, regardless of his intent or rationale for not doing so, constitutes a violation of Section 112.3143(4)(a), Florida Statutes (Supp. 1994).
The Advocate for the Commission has established each of the requisite elements and, thus has proven that Respondent violated Section 112.3143(4)(a), Florida Statutes (Supp. 1994).
It is further alleged that Respondent violated Section 112.3143(3)(a), Florida Statutes (Supp. 1994), by (1) failing to properly disclose the nature of his interest in the matter from which he was abstaining from voting; and (2) failing to properly disclose and file within fifteen days after the vote occurs, the nature of his interest.
Section 112.3143(3)(a), Florida Statutes (Supp. 1994), provides:
No county, municipal, or other local public officer shall vote in an official capacity upon any measure which would inure to his or special private gain or loss; which he or she knows would inure to the special private gain or loss of any principal by whom he or she is retained or to the parent organization or subsidiary of a corporate principal by which he or she is retained, other than an agency as defined in s. 112.312(3); or which he or she knows would inure to the special private gain or loss of a relative or business associate of the public officer. Such public officer shall, prior to the vote being taken,
publicly state to the assembly the nature of his interest in the matter from which he or she is abstaining from voting and, within 15 days after the vote occurs, disclose the nature of his or her interest as a public record in a memorandum filed with the person responsible for recording the minutes of the meeting, who shall incorporate the memorandum in the minutes.
In order for it to be concluded that the Respondent violated Section 112.3143(3)(a), Florida Statutes (Supp. 1994), the Advocate must establish the following elements:
The Respondent must have been a county, municipal or other local public officer serving on a collegial body.
The Respondent must have voted in his or her official capacity on a measure which would have inured to the Respondent's own special private gain or loss.
or
When abstaining from a vote because of a conflict, the Respondent, prior to the vote being taken, must have failed to publicly state to the assembly the nature of his or her interest in the matter in which he is abstaining.
and
After abstaining from a vote because of a conflict, the Respondent failed to disclose the nature of his or her interest in the measure in a memorandum filed within 15 days after the vote occurred with the person responsible for recording the minutes of the meeting at which the vote occurred.
With regard to the first element, the parties have stipulated that the Respondent, as a member of the Zoning Board, was subject to the requirements of Part III, Chapter 112, Florida Statutes (Supp. 1994).
To prove a violation of Section 112.3143(3)(a), Florida Statutes (Supp. 1994), the Advocate must next establish that
Respondent failed to publicly state to the assembly the nature of his interest in the matter from which he was abstaining from voting. In this case, Respondent assumed that it was common knowledge that he owned the marina adjacent to the property that was being considered for rezoning. Based on this perception, Respondent failed to publicly state to the assembly the nature of his interest in the matter from which he was abstaining from voting. By Respondent’s admission, the Advocate has established the second element required to prove a violation of Section 112.3143(3)(a), Florida Statutes (Supp. 1994).
The third element that must be proven to establish a violation of Section 112.3143(3)(a), Florida Statutes, is that Respondent, after abstaining from voting on a matter inuring to his special benefit, failed to file a memorandum disclosing the nature of his conflict within fifteen days after the vote occurred.
The evidence at hearing established that the Zoning Board voted on the rezoning matter on August 1, 1995. Moreover, it is undisputed that Respondent abstained from the voting on the rezoning of the property adjacent to his marina, Respondent failed to file his memorandum disclosing his interest within fifteen days after the vote occurred. Respondent filed a memorandum disclosing the nature of his interest in the matter from which he was abstaining from voting on August 24, 1996, and not within the statutorily prescribed timeframe.
Having established each of the required elements, the Advocate has proven that Respondent violated Section 112.3143(3)(a), Florida Statutes (Supp. 1994).
$200.00.
Filed with the Clerk of the Division of Administrative Hearings this 24th day of April 1997.
Florida Commission on Ethics Post Office Box 15709 Tallahassee, Florida 32317-5709
Mr. Jim McCullough
All parties have the right to submit written exceptions within 15 days from the date of this recommended order. Any exceptions to this recommended order should be filed with the agency that will issue the final order in this case.
