Lerner, a duly-designated Administrative Law Judge of the Division of Administrative Hearings (DOAH).
For Advocate: James H. Peterson, III, Esquire
Office of the Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050
For Respondent: Albert T. Gimbel, Esquire
R. Gary Early, Esquire Mark Herron, Esquire
Messer, Caparello & Self, P.A. 2618 Centennial Place
Whether Respondent, when he voted April 18, 2002, as a member of the Palm Beach Gardens City Commission, on Resolution 54, 2002 and Resolution 57, 2002, relating to Parcel 6 and Parcel 24, respectively, of the Mirasol development project,
knew that these measures would inure to the special private gain or loss of a principal by whom he was retained and thereby violated Section 112. 3143(3), Florida Statutes, as alleged in the Order Finding Probable Cause, and, if so, what is the appropriate penalty.
On April 25, 2007, the Commission on Ethics (Commission) issued an Order Finding Probable Cause in connection with a citizen complaint filed against Respondent. The Commission's order read, in pertinent part, as follows:
Based on the preliminary investigation of this complaint and on the recommendation of the Commission's Advocate, the Commission on Ethics finds that there is probable cause to believe that the Respondent, as a member of the City Council for the City of Palm Beach Gardens, violated Section 112.3143(3), Florida Statutes, by voting as a member of the Palm Beach Gardens City Council on
April 18, 2002, for Resolution 54, 2002, when he knew that the measure voted on inured to the special private gain or loss of one of his principals. The Commission further finds that there is probable cause to believe that the Respondent violated Section 112.3143(3), Florida Statutes, by voting as a member of the Palm Beach Gardens City Council on April 18, 2002, for Resolution 57, 2002, when he knew that the measure voted on inured to the special private gain or loss of one of his principals.
A formal notice of hearing on the matters on which probable cause has been found will be prepared and sent to the Respondent and the Advocate. . . .
March 27, 2008, the Commission referred the matter "by letter to the Division of Administrative Hearings for the appointment of an administrative law judge." The case was docketed as DOAH Case No. 08-1567EC and assigned to Judge J. D. Parrish.
On April 10, 2008, the parties filed a motion requesting that the instant case be reassigned to the same administrative law judge assigned to hear DOAH Case No. 08-0782EC. A telephonic hearing on the motion was conducted on April 14, 2008, by the undersigned (as the administrative law judge assigned the case with the lowest case number, DOAH Case No.
08-0782EC). During the hearing, the parties in both the instant case and DOAH Case No. 08-0782EC expressed their agreement that, not only should the cases be heard by the same administrative law judge, they should be consolidated for purposes of hearing. Later that same day, the undersigned was reassigned the instant case, and he thereupon issued an order consolidating it with DOAH Case No. 08-0782EC for purposes of hearing. In his order, the undersigned indicated that "[s]eparate recommended orders will be issued in each case, however."
On November 11, 2008, the parties filed a Joint Prehearing Stipulation, which included the following "facts which [were] admitted and [would] require no proof at hearing" (Stipulations of Fact):
The following were listed in the parties' Joint Prehearing Stipulation as the "issues of law which remain[ed] for [the] administrative law judge's determination":
As noted above, the public hearing in this case was held on November 13 and 14, 2008.1 Five witnesses testified at hearing: Eric Jablin; Respondent; Ronald Farris; Phillip Claypool, Esquire; and Carl Sabatello. In addition to these five witnesses' testimony, 13 exhibits (Joint Exhibits 40, 41, 43, 53,
55, 58, 59, 61, 62, 74, 76, 81, and 82) were offered and received into evidence. These exhibits included the depositions of Leonard Rubin, Esquire (Joint Exhibit 77), Craig Perna (Joint Exhibit 81), and Jack Hanson (Joint Exhibit 82), which were admitted in lieu of the deponents' live testimony.
At the close of the taking of evidence on November 14, 2008, the undersigned established a February 2, 2009, deadline for the filing of proposed recommended orders.
The hearing Transcript (consisting of three volumes) was filed with DOAH on December 18, 2008.
On January 9, 2009, the parties filed a motion jointly requesting a two-week extension of the deadline for filing proposed recommended orders. By order issued January 12, 2009, the motion was granted, and the filing deadline was extended to February 16, 2009.
The parties timely filed their Proposed Recommended Orders on February 16, 2009.
Based on the evidence adduced at the public hearing and the record as a whole, the following findings of fact are made to supplement and clarify the factual stipulations set forth in the parties' Joint Prehearing Stipulation2:
Each of the "Sabatello construction companies" referred to in the parties' Stipulations of Fact 3 and 4 was wholly owned by Carl Sabatello and his brothers Paul, Theodore, and Michael Sabatello (Sabatello Brothers), with each brother owning an equal (25%) share of the company.
Of these companies, only one, Sabatello Development Corporation IV (SD IV) was involved in the Mirasol Project.
SD IV has been in continuous existence since its formation in or around the 1980's. Carl Sabatello serves as its president, "oversee[ing] all [of its] functions."
SD IV is a Subchapter S corporation. As such, its profits are passed through to the Sabatello Brothers, its four shareholders, in equal amounts.
Respondent is a certified public accountant. Since 1989, through his accounting firm, he has provided tax preparation services to SD IV and the Sabatello Brothers. His
firm has derived "anywhere from 15 to 25%" of its total income from the monies received for providing these services.
Before establishing his accounting firm in 1989, Respondent was SD IV's chief financial officer and one of its shareholders.
Taylor Woodrow Communities (Taylor Woodrow) was the master developer of the Mirasol Project.
Taylor Woodrow's Craig Perna had "overall responsibility for every aspect of the [Mirasol] development" project, including the "selection of builders."
The builder selection process started with Mr. Perna getting the names of "prominent builders in the Palm Beach Gardens market" having "excellent reputation[s]" and then contacting them to inquire as to their interest in participating in the Mirasol Project. Carl Sabatello was among those
Mr. Perna contacted. He was contacted (by telephone) in mid-May of 2000, and advised Mr. Perna he was "very interested" in having his company, SD IV, considered for selection as a builder in Mirasol.
SD IV, was one of at least ten or 12 builders vying to be selected to participate in the Mirasol Project.
Over a period of approximately eight months (from
mid-May 2000, to mid-January 2001), Taylor Woodrow requested and obtained from SD IV and from the other would-be participants in
the project (Other Builders) information and documents in order to evaluate these builders' qualifications for selection.
In the latter part of 2000, prior to any selection having been made, Carl Sabatello requested the Palm Beach Gardens City Attorney, Leonard Rubin, Esquire, "to provide a [written] legal opinion as to [Mr. Sabatello's] obligation to abstain from voting in [his] official capacity on matters relating to Mirasol that come before the [Palm Beach Gardens] City Council." In response to Mr. Sabatello's request,
Mr. Rubin prepared a written memorandum, dated December 5, 2000, which was provided, not only to Mr. Sabatello, but to all members of the Palm Beach Gardens City Council, including Respondent, as well as to the Interim City Manager. The memorandum read as follows:
You have indicated that the Sabatello Companies, of which you are a principal, is currently in negotiations with the developers of the Mirasol Planned Community District ("PCD") to become a builder of homes within that community. Your activities as a builder would be limited to specific parcels or pods within the PCD. You asked this office to provide a legal opinion as to your obligation to abstain from voting in your official capacity on
matters relating to Mirasol that come before the City Council.
Voting conflicts for members of the City Council are governed by section 112.3143, Florida Statutes. Subsection (3)(a) provides that a municipal officer shall not vote in an official capacity on any measure
that "would inure to the special gain" of the officer, a principal by whom the officer is retained, or a relative or business associate of the officer. According to the state Ethics Commission, the determination of whether the officer receives a special private gain is based upon the size of the class of persons affected by the vote at issue.
The Mirasol PCD encompasses a variety of residential, commercial, recreational and community uses. The residential uses range from low density single family homes to high density multi-family apartments. It is anticipated that your company's activities will be limited to the construction of single family dwellings within a specific, identifiable parcel for which a site plan has already been approved. Because of this limited involvement, there does not appear to be any requirement that you abstain from every vote relating to the approval of plats, parcels and site plans within the entire Mirasol PCD. See CEO 85-62 (city council member not prohibited from voting on rezoning of property within a large redevelopment area where member's corporation owns a parcel of land within the same area). By way of example, the City Council's approval of the site plan for the fire station or the plat for Jog Road in no way inures to your or your company's special private gain. You would, however, be required to abstain from any additional votes relating to the specific parcels or pods within the community in which your company possesses or acquires an interest by virtue of a contractual relationship with the master developer.
Where a conflict of interest exists, you are required to state the nature of your interest prior to the vote and file a voting conflict memorandum with the City Clerk, within 15 days. The existence of a voting conflict does not necessarily require you to
abstain from all discussion relating to the matter (although you are free to do so). If you plan to participate in discussion of a matter in which you know you have a conflict, you must file a written conflict memorandum before the public meeting.
You have also expressed concern that upon learning that your company will be building homes within Mirasol, members of the public may perceive a conflict of interest in all matters relating to Mirasol. To avoid the appearance of impropriety, it would be appropriate to make the following disclos[ure] prior to any vote:
"While it is anticipated that the Sabatello Companies will be building homes within Mirasol, the matter before the City Council does not concern the areas in which such construction will take place and is wholly unrelated to any interest held by me or my corporations."
Should you have any questions or be in need of additional information, please do not hesitate to contact this office.
In January of 2001, Taylor Woodrow selected SD IV to build on Mirasol Parcel 4.3 It sent Carl Sabatello a letter dated January 22, 2001, advising him of the selection, along with a Parcel Builder Agreement and Exclusive Agency Brokerage Agreement for Mirasol Parcel 4.
These agreements were fully executed in February of
2001.
Sometime thereafter SD IV began building on Mirasol
Parcel 4.
SD IV was one of first builders to start construction in Mirasol.
SD IV eventually purchased all 46 lots in Mirasol Parcel 4, constructing homes on each. All of the homes it built were sold.
On or about October 18, 2001, at Respondent's request, Mr. Rubin prepared and distributed to Respondent and the other members of Palm Beach Gardens City Council a written memorandum designed to provide "clarification and confirmation from [the City Attorney's] office regarding a Council Member's obligation to vote on an item before the City Council." In this memorandum, Mr. Rubin made the following points:
A council member must vote in the absence of a voting conflict or conflict of interest.
Section 28[6].012, Florida Statutes, requires a member of the City Council, who is present at a meeting, to vote on an item before the Council unless there is, or appears to be, a conflict of interest or voting conflict pursuant to the Code of Ethics for Public Officers and Employees.
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A voting conflict arises when the vote inures the Council member's own special private gain or loss of the special private gain or loss of the Council member's principal, family member or business associate.
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The special private gain to the Council member depends on the size of the class of persons affected and is fact-specific.
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The special private gain to the Council member must be direct and proximate.
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In the event of a voting conflict, a Council member must disclose the nature of the conflict and abstain from voting.
Mr. Rubin's memorandum "reinforced what [Respondent] already knew about the law."
On April 18, 2002, the Palm Beach Gardens City Council voted on and passed two measures concerning the Mirasol Project, one, Resolution 54, 2002, dealing with Mirasol Parcel 6 (a 10.11 acre site within the development), and the other, Resolution
57, 2002, dealing with Mirasol Parcel 10 (a 14.6-acre site within the development).
As the summary statement on its first page reflects, Resolution 54, 2002 was:
A resolution of the City Council of the City of Palm Beach Gardens, Florida, providing for the approval of a site plan to allow for the development of 41 semi-custom homes, known as Mirasol Parcel 6, located within the Mirasol Planned Community District (PCD), as more particularly described herein; providing for conditions of approval; providing for waivers; providing for severability; providing for conflicts; and providing for an effective date.
Section 5 of the resolution granted the following waivers:
From Section 78-498 of the LDRs, to permit a 45-foot wide right-of-way. The code requires a minimum right-of-way width of 50 feet.
From Section 78-141 of the LDRs, to permit a minimum lot width of 60 feet. The code requires a minimum width of 65 feet.
From Section 78-141 of the LDRs, to permit lot coverage of 50%. The code requires a maximum lot coverage of 35%.
From Section 78-141 of the LDRs, to permit a building side setback of 3 feet 1 inch on a "zero" side and 6 feet 11 inches on a "non-zero" side. The code requires a minimum side setback of 7.5 feet.
From Section 78-141 of the LDRs, to permit a screen/accessory side setback of 3 feet 1 inch on a "zero" side and 5 feet on a "non-zero" side. The code requires a minimum side setback of 7.5 feet.
From Section 78-141 of the LDRs, to permit a screen/accessory rear setback of 3 feet. The code requires a minimum setback of 10 feet.
As the summary statement on its first page reflects, Resolution 57, 2002 was:
A resolution of the City Council of the City of Palm Beach Gardens, Florida, providing for the approval of a site plan to allow for the development of 26 custom homes, known as Mirasol Parcel 10, located within the Mirasol Planned Community District (PCD), as more particularly described herein; providing for conditions of approval; providing for waivers; providing for severability; providing for conflicts; and providing for an effective date.
Section 5 of the resolution granted the following waivers:
From Section 78-498 of the LDRs, to permit a 45-foot wide right-of-way. The code requires a minimum right-of-way width of 50 feet.
From Section 78-141 of the LDRs, to permit lot coverage of 45%. The code requires a maximum lot coverage of 35%.
From Section 78-141 of the LDRs, to permit a building/screen side setback of 10 feet. The code requires a minimum side setback of 12 feet.
From Section 78-141 of the LDRs, to permit an accessory structure setback of 5 feet. The code requires a minimum side setback of 12 feet.
From Section 78-141 of the LDRs, to permit a screen/accessory rear setback of 3 feet. The code requires a minimum setback of 10 feet.
The "waivers" that were granted by Resolution 54, 2002 and Resolution 57, 2002 were from the requirements of the Palm Beach Gardens Code that Taylor Woodrow, or whichever builder(s) it subsequently selected to build on the affected parcels, would otherwise have to meet.
At the April 18, 2002, Palm Beach Gardens City Council meeting, Carl Sabatello orally announced to those in attendance, including Respondent, that he was going to abstain from voting on Resolution 54, 2002 and Resolution 57, 2002, explaining that
he was involved in discussions regarding the possible purchase of the two parcels that were the subject of these measures.
At the time of the vote on Resolution 54, 2002 and Resolution 57, 2002, although he may have been aware of the investment Mr. Sabatello's company had made in Mirasol Parcel 4, Respondent had no knowledge of any connection that Mr. Sabatello or his company may have had with Mirasol Parcel 6 and Mirasol Parcel 10 other than what Mr. Sabatello had told the audience at the meeting about the matter.
As far as Respondent knew, neither Mr. Sabatello nor his company owned or had a contract to purchase Mirasol Parcel 6 or Mirasol Parcel 10.
Respondent did not attempt to engage Mr. Sabatello in conversation or otherwise seek to find out more about the discussions Mr. Sabatello had referred to in his abstention announcement.
Respondent did, however, consult with the Palm Beach Gardens City Attorney to determine whether or not he should vote on the resolutions.
Respondent "knew [that the law required him] not to vote [on] things that a client had an interest in," but, based on what Mr. Sabatello had said at the meeting, he believed that Mr. Sabatello was merely "in a discussion phase" regarding the acquisition of an interest in Mirasol Parcel 6 and Mirasol
Parcel 10 and that there had not been any agreement reached on the matter. He therefore voted on Resolution 54, 2002 and Resolution 57, 2002, consistent with the advice that the Palm Beach Gardens City Attorney had given.
Approval of the site plans for Mirasol Parcel 6 and Mirasol Parcel 10 (which the passage of Resolution 54, 2002 and Resolution 57, 2002, respectively, accomplished) was needed before any permits for building on those two parcels could be obtained.
Mr. Sabatello, on April 18, 2002, filled out a voting conflict form (Form 88, Memorandum of Voting Conflict) explaining why he did not vote on Resolution 54, 2002 and Resolution 57, 2002. On the form, he indicated that these votes "inured to the special gain of Sabatello Development Corp, IV, Inc, by whom I am retained," and then added that this "company," of which he was "an officer and owner[,] [was] in the process of negotiating [the] purchasing of Pod 6 & Pod 10."
At the time he cast his votes for Resolution 54, 2002 and Resolution 57, 2002, Respondent was "not privy" to the contents of Mr. Sabatello's completed voting conflict form.
On April 30, 2002, 12 days after the votes on Resolution 54, 2002 and Resolution 57, 2002, SD IV entered into an agreement with Taylor Woodrow to purchase all of the lots in
Mirasol Parcel 6. It closed on lots 10, 11, 32, and 33 on September 25, 2002, and on the remaining lots in the parcel on January 3, 2003.
SD IV built a home on every lot it purchased in Mirasol Parcel 6, and it sold every home it built.
SD IV received a contract to purchase Mirasol Parcel 10, but it never executed the contract and therefore never acquired an interest in the parcel.
CONCLUSIONS OF LAW
DOAH has jurisdiction over the subject matter of this proceeding and of the parties hereto pursuant to Chapter 120, Florida Statutes.
The Commission was "created . . . to serve as guardian of the standards of conduct for the officers and employees of the state, and of a county, city, or other political subdivision of the state . . . and to serve as the independent commission provided for in s. (8)(f), Art. II of the State Constitution."4
§ 112.320, Fla. Stat.
The "Code of Ethics for Public Officers and Employees" (Code) found in Chapter 112, Part III, Florida Statutes, contains such "standards of conduct."
In Sections 112.311 and 112.316, Florida Statutes, which provide, in pertinent part, as follows, the Legislature explained what it intended, and what it did not intend, in enacting the Code:
112.311 Legislative intent and declaration of policy
It is essential to the proper conduct and operation of government that public officials be independent and impartial and that public office not be used for private gain other than the remuneration provided by law. The public interest, therefore, requires that the law protect against any conflict of interest and establish standards for the conduct of elected officials and government employees in situations where conflicts may exist.
It is also essential that government attract those citizens best qualified to serve. Thus, the law against conflict of interest must be so designed as not to impede unreasonably or unnecessarily the recruitment and retention by government of those best qualified to serve. Public officials should not be denied the opportunity, available to all other citizens, to acquire and retain private economic interests except when conflicts with the responsibility of such officials to the public cannot be avoided.
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It is the intent of this act to implement these objectives of protecting the integrity of government and of facilitating the recruitment and retention of qualified personnel by prescribing restrictions against conflicts of interest without creating unnecessary barriers to public service.
It is hereby declared to be the policy of the state that no officer or employee of a state agency or of a county, city, or other political subdivision of the state, and no member of the Legislature or legislative employee, shall have any interest, financial or otherwise, direct or indirect; engage in any business transaction or professional activity; or incur any obligation of any nature which is in substantial conflict with the proper discharge of his or her duties in the public interest. To implement this policy and strengthen the faith and confidence of the people of the state in their government, there is enacted a code of ethics setting forth standards of conduct required of state, county, and city officers and employees, and of officers and employees of other political subdivisions of the state, in the performance of their official duties. It is the intent of the Legislature that this code shall serve not only as a guide for the official conduct of public servants in this state, but also as a basis for discipline of those who violate the provisions of this part.
It is declared to be the policy of the state that public officers and employees, state and local, are agents of the people and hold their positions for the benefit of the public. They are bound to uphold the Constitution of the United States and the State Constitution and to perform efficiently and faithfully their duties under the laws of the federal, state, and local governments. Such officers and employees are bound to observe, in their official acts, the highest standards of ethics consistent with this code and the advisory opinions rendered with respect hereto regardless of personal considerations, recognizing that promoting the public interest and maintaining the
respect of the people in their government must be of foremost concern.
112.316 Construction
It is not the intent of this part, nor shall it be construed, to prevent any officer or employee of a state agency or county, city, or other political subdivision of the state or any legislator or legislative employee from accepting other employment or following any pursuit which does not interfere with the full and faithful discharge by such officer, employee, legislator, or legislative employee of his or her duties to the state or the county, city, or other political subdivision of the state involved.
Among the "standards of conduct" established by the Code are those set forth in Section 112.3143(3)(a), Florida Statutes, which at all material times has provided as follows:
No county, municipal, or other local public officer shall vote in an official capacity upon any measure which would inure to his or her 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(2); 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 the officer's 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.
As a member of the Palm Beach Gardens City Council, Respondent was subject to the provisions of Section 112.3143(3)(a), Florida Statutes.
Pursuant to Section 286.012, Florida Statutes (which is not part of the Code), a local public officer need not have an actual voting conflict to lawfully abstain from voting. According to this statute, abstention is permissible where "there is, or appears to be, a possible conflict of interest." Under all other circumstances, however, voting is mandatory.
The Legislature has granted the Commission the authority and responsibility to issue advisory opinions "to interpret or advise on the applicability of" Section 112.3143(3)(a), Florida Statutes, and the other provisions of the Code. Commission on Ethics v. Sullivan, 489 So. 2d 10, 13 (Fla. 1986). This grant of power and duty is found in Section 112.322(3)(a), Florida Statutes, which provides as follows:
Every public officer, candidate for public office, or public employee, when in doubt about the applicability and interpretation of this part or s. 8, Art. II of the State Constitution to himself or herself in a particular context, may submit in writing the facts of the situation to the Commission on Ethics with a request for an advisory opinion to establish the standard of public duty. Any public officer or employee who has the power to hire or terminate employees may likewise seek an advisory opinion from
the commission as to the application of the provisions of this part or s. 8, Art. II of the State Constitution to any such employee or applicant for employment. An advisory opinion shall be rendered by the commission, and each such opinion shall be numbered, dated, and published without naming the person making the request, unless such person consents to the use of his or her name.
According to Subsection (3)(b) of the statute, an advisory opinion issued by the Commission, "until amended or revoked, shall be binding on the conduct of the officer, employee, or candidate who sought the opinion or with reference to whom the opinion was sought, unless material facts were omitted or misstated in the request for the advisory opinion."
Advisory opinions issued by the Commission pursuant to Section 112.322(3)(a), Florida Statutes, are not "rules," as defined in Section 120.52(16), Florida Statutes,5 because they are not "statements of general applicability" inasmuch as their "binding" effect, by statute, is limited to "the conduct of the officer, employee, or candidate who sought the opinion or with reference to whom the opinion was sought."6 See Agency for Health Care Administration v. Custom Mobility, Inc., 995 So. 2d 984, 986 (Fla. 1st DCA 2008)("[T]the cluster sampling formula is not an agency statement of general applicability. In
Department of Commerce v. Matthews Corporation, 358 So. 2d 256 (Fla. 1st DCA 1978), this Court held that wage rate guidelines
were not statements of general applicability because they were 'applicable only to the construction of the particular public building or other work specified in the determination,' and because they have 'no prospective application to any other contract - only the specific project involved in the particular location.' Id. at 258. In Department of Highway Safety v.
Schluter, 705 So. 2d 81, 82 (Fla. 1st DCA 1997), this Court held that three of six agency statements in question, policies concerning officer discipline, were not statements of general applicability 'because the record establishes that each was to apply only under 'certain circumstances,' and so did not have the 'consistent effect of law' mentioned in McDonald.
Similarly, the formula here applies only to some of the service providers being audited, and thus does not have the consistent effect of law."); Taylor v. Department of Banking and Finance, Office of the Comptroller, No. 02-2135RU, 2002 Fla. Div. Adm.
Hear. LEXIS 1056 *32 (Fla. DOAH August 6, 2002)(Final Order)("If by its terms a statement is intended to apply to one person only, or to some but not all similarly situated persons, depending on the particular circumstances, then it should ordinarily be regarded as a case-specific adjudication rather than a policy of general applicability."); Butterworth v.
Department of Banking and Finance, No. 97-2911RU, 1997 Fla. Div. Adm. Hear. LEXIS 5654 *4 (Fla. DOAH August 19, 1997)(Final
Order)("[I]n order for a statement to qualify as a rule, it must be a 'statement of general applicability that implements, interprets, or prescribes law or policy . . . of an agency.' By its own terms, a declaratory statement applies to a 'particular set of circumstances' and cannot qualify as a statement of general applicability."); and Florida Manufactured Housing Association, Inc., v. Department of Business Regulation, Division of Florida Land Sales, Condominiums and Mobile Homes, Nos. 85-3858RX and 85-3859RX, 1984 Fla. Div. Adm. Hear. LEXIS
5231 *65 (Fla. DOAH December 17, 1984)(Final Order)("This explanation only applies to the particular park owners which the Respondent provided the explanation to. It is not clearly intended to be a policy of general applicability even though the explanation was given to more than one park owner because those park owners had given the same clearly insufficient explanations in their notices. . . . It is therefore concluded that the Petitioner has failed to prove that the Respondent has adopted a policy which should have been promulgated as a rule."); see also Florida Optometric Association v. Department of Professional Regulation, Board of Opticianry, 567 So. 2d 928, 937 (Fla. 1st DCA 1990)("We do observe, however, that declaratory statements and rules serve clearly distinct functions under the scheme of Chapter 120. Although the line between the two is not always clear, it should be remembered that declaratory statements are
not to be used as a vehicle for the adoption of broad agency policies. Nor should they be used to provide interpretations of statutes, rules or orders which are applicable to an entire class of persons. Declaratory statements should only be granted where the petition has clearly set forth specific facts and circumstances which show that the question presented relates only to the petitioner and his particular set of circumstances.").
Since they are not "rules," the Commission's advisory opinions are not subject to challenge pursuant to Section 120.57(1)(e), Florida Statutes. Accordingly, to the extent that Respondent contends that the Commission is barred by Section 120.57(1)(e) from relying on the reasoning of CEO 87-86 (Fla. Commission on Ethics December 10, 1987) and CEO 89-45 (Fla. Commission on Ethics September 14, 1989)7 in determining whether Respondent committed the violations alleged in the Order Finding Probable Cause, that argument is rejected.8
A local public officer "in doubt about the applicability and interpretation" of Section 112.3143(3)(a), Florida Statutes, can avoid being found guilty of a violation of the Code by making a request to the Commission for an advisory opinion, accompanied by an accurate and complete disclosure of the pertinent facts, and by then following the advice given by the Commission in its advisory opinion, which, by operation of
Section 112.322(3)(a), Florida Statutes, "establish[es] the standard of public duty" for the officer. Simply obtaining and following the advice of an attorney, however, does not provide the same protection, although it may constitute a mitigating circumstance to be taken into consideration in determining an appropriate penalty in those cases where the attorney's advice turns out to have been erroneous. Cf. In re Mitchell Kinzer, No. 95-13, 1994 Fla. Div. Adm. Hear. LEXIS 5188 *40 (Fla.
Commission on Ethics April 21, 1994)(Final Order), rev'd on other grounds, Kinzer v. State Commission on Ethics, 654 So. 2d 1007 (Fla. 3d DCA 1995)("Where, as here, there is no requirement of wrongful intent, Respondent's reliance on the incorrect advice of counsel is not a defense. See In re Michael Kenton,
13 FALR 1295, 1317 (Commission on Ethics 1989). Respondent's reliance on the prior advice of counsel mitigates, but does not obviate the violation. See Gordon v. Commission on Ethics, 609 So. 2d 125 (Fla. 4th DCA 1992).").
The "penalties" that may be imposed for violations of Section 112.3143(3)(a), Florida Statutes, and other Code provisions are spelled out in Section 112.317(1)(a), Florida Statutes, which provides, in pertinent part, as follows:
Violation of any provision of this part, including, but not limited to, any . . . violation of any standard of conduct imposed by this part, . . . in
addition to any criminal penalty or other
civil penalty involved, shall, pursuant to applicable constitutional and statutory procedures, constitute grounds for, and may be punished by, one or more of the following:
(a) In the case of a public officer:
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Removal from office.
Suspension from office.
Public censure and reprimand.
Forfeiture of no more than one-third salary per month for no more than 12 months.
A civil penalty not to exceed $10,000.
Restitution of any pecuniary benefits received because of the violation committed. The commission may recommend that the restitution penalty be paid to the agency of which the public officer was a member or to the General Revenue Fund.
In any case in which the commission finds a violation of this part . . . and recommends a civil penalty or restitution penalty, the Attorney General shall bring a civil action to recover such penalty. No defense may be raised in the civil action to enforce the civil penalty or order of restitution that could have been raised by judicial review of the administrative findings and recommendations of the commission by certiorari to the district court of appeal.
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(5) By order of the Governor, upon recommendation of the commission, any elected municipal officer who violates any provision of this part . . . may be
suspended from office and the office filled by appointment for the period of suspension. The suspended officer may at any time before removal be reinstated by the Governor. The Senate may, in proceedings prescribed by law, remove from office, or reinstate, the suspended official, and for such purpose the Senate may be convened in special session by its President or by a majority of its membership.
Pursuant to Section 112.324(3), Florida Statutes, "only the appropriate disciplinary authority as designated in this section" may impose penalties for Code violations. In the case of an elected municipal officer, the Governor is the "appropriate disciplinary authority . . . designated in [Section 112.324]."
The Commission is authorized to investigate complaints of violations of the Code to determine "whether there is probable cause to believe that a violation has occurred." If, upon completion of its preliminary investigation, the Commission finds that such probable cause exists, a public (evidentiary) hearing must be held if requested by the accused public officer or employee. If it so desires, "[t]he [C]ommission may on its own motion, require a public [evidentiary] hearing." § 112.324, Fla. Stat.
"Public hearings may be conducted by the full Commission, by a single Commission member, or by the Division of Administrative Hearings, as directed by the Chair of the
Commission after considering the Commission's workload." Fla. Admin. Code R. 34-5.010.
The Commission is represented at these public hearings by its Advocate, who enjoys the same opportunity as the accused public officer to be a "full participant" in the proceedings. Fla. Admin. Code R. 34-5.011; see also Fla. Admin. Code R. 34- 5.0045(2)("The Advocate represents the Commission in its prosecutorial function.").
The Advocate bears the burden of proving that the accused engaged in the conduct, and thereby committed the Code violation(s), alleged in the Commission's order finding probable cause.
Proof greater than a mere preponderance of the evidence must be presented by the Advocate to meet this burden of proof. Clear and convincing evidence of the accused's guilt is required. See Department of Banking and Finance, Division of Securities and Investor Protection v. Osborne Stern and Company, 670 So. 2d 932, 935 (Fla. 1996); and Latham v. Florida Commission on Ethics, 694 So. 2d 83, 87 (Fla. 1st DCA 1997).
Clear and convincing evidence "requires more proof than a 'preponderance of the evidence' but less than 'beyond and to the exclusion of a reasonable doubt.'" In re Graziano, 696 So. 2d 744, 753 (Fla. 1997). It is an "intermediate standard." Id. For proof to be considered "'clear and convincing' . . .
the evidence must be found to be credible; the facts to which the witnesses testify must be distinctly remembered; the testimony must be precise and explicit and the witnesses must be lacking in confusion as to the facts in issue. The evidence must be of such weight that it produces in the mind of the trier of fact a firm belief or conviction, without hesitancy, as to the truth of the allegations sought to be established." In re Davey, 645 So. 2d 398, 404 (Fla. 1994), quoting, with approval, from Slomowitz v. Walker, 429 So. 2d 797, 800 (Fla. 4th DCA 1983). "Although this standard of proof may be met where the evidence is in conflict, . . . it seems to preclude evidence that is ambiguous." Westinghouse Electric Corporation, Inc. v.
Shuler Bros., Inc., 590 So. 2d 986, 989 (Fla. 1st DCA 1991).
The Advocate's evidentiary presentation at the public hearing must be evaluated in light of the specific allegations of wrongdoing made in the Commission's order finding probable cause to determine whether the Advocate has met his burden of proof. Due process prohibits penal action being taken against a public officer based on matters outside these specific allegations, unless those matters have been tried by consent. See Shore Village Property Owners' Association, Inc. v. Department of Environmental Protection, 824 So. 2d 208, 210 (Fla. 4th DCA 2002); and Marcelin v. Department of Business and Professional Regulation, 753 So. 2d 745, 747 (Fla. 3d DCA 2000).
Where an administrative law judge has conducted the public hearing and issued a recommended order, the Commission must meet to consider the recommended order and any exceptions thereto. Pursuant to Florida Administrative Code Rule 34-5.024, the meeting "shall not be an evidentiary 'hearing'" and "[n]o new evidence shall be taken."
If the Commission, at its meeting, finds that there was a violation of the Code, as specifically alleged by the Commission, it may recommend a "civil penalty" (not to exceed
$10,000.00) and/or a "restitution penalty" (in an amount equal to the "pecuniary benefits received because of the violation committed"). Should the Commission do so, "the Attorney General [must] bring a civil action to recover such penalty." § 112.317, Fla. Stat.
In the instant case, the Commission has alleged that Respondent, as a member of the Palm Beach Gardens City Council, violated Section 112.3143(3), Florida Statutes, on April 18, 2002, by voting on Resolution 54, 2002 and Resolution 57, 2002 (Subject Votes), when he "knew at the time of the [S]ubject [V]otes that the votes inured to the special private gain of Carl Sabatello, SD IV, and [the] Sabatello[] [B]rothers," all of whom were his "principals based upon the fact that they were clients of Respondent's professional accounting partnership."
To determine whether the Advocate has met his burden of proving these violations by clear and convincing evidence, it is first necessary to ascertain the meaning of Section 112.3143(3), Florida Statutes, and understand what conduct it prohibits.
"Legislative intent is the 'polestar' in interpretation of statutory provisions." Blinn v. Florida Department of Transportation, 781 So. 2d 1103, 1107 (Fla. 1st DCA 2000). "Legislative intent must be derived primarily from the words expressed in the statute. If the language of the statute is clear and unambiguous," these words must be given effect. Florida Department of Revenue v. Florida Municipal
Power Agency, 789 So. 2d 320, 323 (Fla. 2001).
Inasmuch as it is a penal statute, Section 112.3143(3), Florida Statutes, must be strictly construed and not extended beyond its intended reach. If there are any doubts concerning its applicability, these doubts must be resolved in favor of limiting, rather than extending, its scope of operation. See Florida Industrial Commission v. Manpower, Inc. of Miami, 91 So. 2d 197, 199 (Fla. 1956); Beckett v. Department
of Financial Services, 982 So. 2d 94, 100 (Fla. 1st DCA 2008); and Latham, 694 So. 2d at 86.
It is telling that the Legislature, in Section 122.3143(3), Florida Statutes, used the language "would inure,"
not "might inure" or "is likely to inure." Strictly construing this language in a manner consistent with its plain meaning, the Commission, "[i]n past decisions, [has] found that the statute does not apply in situations where, at the time of the vote, there is uncertainty whether there will be any [special private] gain or loss to the officer, his principal (employer), or to other persons or entities standing in an enumerated relationship to the officer, and if so, what the nature and magnitude of the gain or loss might be." CEO 07-7 (Fla. Commission on Ethics March 7, 2007); see also CEO 90-66 (Fla. Commission on Ethics October 19, 1990)("A county commissioner was not prohibited by Section 112.3143(3), Florida Statutes, from voting on a provisional use petition by a landowner for communication tower use when he was an investor in a limited partnership, the parent company of which had negotiated with the landowner for placement of television broadcasting facilities on a future communication tower but where there had been no commitment on the landowner's part to construct the tower, negotiations have continued, no lease contract has been entered into, and negotiations have also taken place with the owners of other communications towers which would be acceptable locations for the television facilities.
Any gain or loss resulting from the provisional use to the partnership in which the subject commissioner is a limited partner is too speculative and remote to conclude that his vote
on the provisional use petition would inure to his special private gain."). That there ultimately may have been a "special private gain or loss" is not determinative. A local public officer's action in voting on a particular measure must be judged, not based on hindsight, but on the circumstances that existed "at the time of the vote" in question. If, in light of these circumstances, one could have only speculated "at the time of the vote" as to whether or not a prohibited "special private gain or loss" would result from the measure voted on, the officer cannot be found guilty of having violated the statute by voting on the measure, even if it turned out that the vote did cause "the officer, his principal (employer), or . . . other persons or entities standing in an enumerated relationship to the officer" to realize a "special private gain or loss."
It is also of significance in determining the reach of Section 112.3143(3), Florida Statutes, as it applies in the instant case, that the Legislature provided that, where the measure in question "would inure to the special private gain or loss [of the officer's] principal," liability attaches only if the officer "knows" that the measure would have this consequence. Importantly, the Legislature did not include the words "or should know" in the statute. Its failure to have added this language (as it has done elsewhere in the Code and in Florida Statutes9) reflects its intent that the officer must
have, at the time of the vote, actual knowledge of the "special private gain or loss" that "would inure" to principal for there to be a violation of the statute. See Leisure Resorts, Inc. v. Frank J. Rooney, Inc., 654 So. 2d 911, 914 (Fla. 1995)("When the legislature has used a term, as it has here, in one section of the statute but omits it in another section of the same statute, we will not imply it where it has been excluded."); Myers v.
Hawkins, 362 So. 2d 926, 929 (Fla. 1978)("The term "judicial tribunal" is found in the Florida Constitution only in Section 8(e) of Article II, although the terms "courts" and "administrative agencies" are used elsewhere frequently. We presume that the language differentiation was intentional."); Department of Professional Regulation, Board of Medical Examiners v. Durrani, 455 So. 2d 515, 516 (Fla. 1st DCA 1984)("The legislative use of different terms in different portions of the same statute is strong evidence that different meanings were intended."); and Ocasio v. Bureau of Crimes Compensation, Division of Workers' Compensation, 408 So. 2d 751, 753 (Fla. 3d DCA 1982)("[I]f it wished, the legislature could easily have accomplished the result achieved below simply by using the familiar and unequivocal expression "husband or wife" or, even more obviously, "spouse"-as it significantly did in another portion, subsection (1)(c), of the identical statute.
Its deliberate use of a quite different term in (2 )(c) is
strong evidence indeed that it intended a quite different meaning."); cf. United States v. Ladish Malting Co., 135 F.3d 484, 488 (7th Cir. 1998)("Knowledge in a criminal statute means actual knowledge. What one ought to have known, but did not know, is not knowledge; it is not even (necessarily) recklessness.")(citation omitted).
To hold that Section 112.3143(3), Florida Statutes, extends to situations where the officer does not have such actual knowledge would require the Commission to add language to the statute that the Legislature, by all appearances, intentionally omitted. This the Commission cannot do, particularly inasmuch as Section 112.3143(3) is a penal statute that must be strictly construed in favor of the accused. See Chaffee v. Miami Transfer Company, Inc., 288 So. 2d 209, 215 (Fla. 1974)("To say, as the employer would have us do, that in merger cases the true meaning of s 440.15(3)(u) is that disability for purposes of that section is the greater of physical impairment or loss of earning capacity only if there is a loss of earning capacity is to invoke a limitation or to add words to the statute not placed there by the Legislature. This we may not do."); In re Order on Prosecution of Criminal Appeals by the Tenth Judicial Circuit Public Defender, 561 So. 2d 1130, 1137 (Fla. 1990)("Courts should not add additional words to a statute not placed there by the legislature, especially where
uncertainty exists as to the intent of the legislature."); and Hialeah, Inc. v. B & G Horse Transportation, Inc., 368 So. 2d 930, 933 (Fla. 3d DCA 1979)("[A] court may not invoke a limitation or add words to a statute not placed there by the legislature. . . . Construing Section 323.24 to provide jurisdiction for the enjoining of persons who intend to or are preparing to operate a vehicle in violation of Chapter 323, requires the court to extend the meaning of the section beyond that intended by the legislature, and requires the addition of words to the section.").
Accordingly, to meet his burden of proof in the instant case, it was incumbent upon the Advocate to clearly and convincingly establish through his evidentiary presentation at hearing that, at the time of the Subject Votes, Respondent had actual knowledge that it was certain and beyond speculation that the measures being voted on would result in a "special private gain" to his accounting clients, SD IV and the Sabatello Brothers (who unquestionably were each his "principal," as that term is used in Section 112.3143(3), Florida Statutes).
The Advocate failed to make such a showing.
The evidentiary record reveals that the extent of Respondent's knowledge, at the time of the Subject Votes, concerning the connection between the measures being voted on and Respondent's "principals" was that there were, as Carl
Sabatello had advised at the meeting in making his abstention announcement,10 ongoing discussions between the owner of Mirasol Parcel 6 and Mirasol Parcel 10 (the property that was the subject of these measures) and Respondent's "principals" regarding a possible purchase of these parcels.11 Insofar as Respondent knew, based on the information he had, there was a possibility that his "principals" might sometime in the future acquire an ownership interest in these parcels (and thereby become unique beneficiaries of Resolution 54, 2000 and Resolution 57, 2000), but it was uncertain at the time whether or not this would actually happen.12 This mere possibility of "special private gain or loss" inuring to his "principals" did not bar Respondent, pursuant to Section 112.3143(3), from casting the Subject Votes.13
In view of the foregoing, it cannot be said that it has been clearly and convincingly established that Respondent violated Section 112.3143(3), Florida Statutes, as a result of his casting the Subject Votes.
