STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

IN RE: MITCHELL KINZER, )

) CASE NO. 93-0313EC

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 August 27, 1993, in Miami, Florida.

APPEARANCES

For The Advocate for Virlindia Doss, Esquire

the Commission on Ethics: Department of Legal Affairs

The Capitol, PL-01

Tallahassee, Florida 32399-1050

For Respondent: Neal L. Sandberg, Esquire 1492 South Miami Avenue Miami, Florida 33130

STATEMENT OF THE ISSUES

On September 18, 1991, the Florida Commission on Ethics (EC) entered its order finding probable cause that Respondent, Mitchell Kinzer, a member of the Surfside Town Commission, violated section 112.313(6), F.S., by improperly using public funds for personal purposes; and that he violated section 112.3135(2)(a), F.S., by participating in his wife's appointment to the Community Center Advisory Board.

The issues for disposition are whether those violations occurred, and if so, what penalty or discipline is appropriate.

PRELIMINARY STATEMENT

On January 21, 1993, the case was forwarded to the Division of Administrative Hearings (DOAH) for conduct of the public hearing ordered by the EC when it found probable cause.

The hearing was scheduled for May 21, 1993, but was continued for good cause at Respondent's request and without objection.

At the hearing the Advocate presented the testimony of Hal Cohen and Mitchell Kinzer. Advocate's exhibits #1-11 were received without objection; exhibit #12 was received over an objection based on relevance.

Respondent also testified in his own behalf and presented the testimony of Stephen Cypen and Regan Kinzer.

The transcript of hearing was not filed; the Advocate submitted a written closing argument; Respondent filed a proposed recommended order. These have both been considered and the findings of fact proposed by Respondent are specifically addressed in the attached Appendix.

FINDINGS OF FACT

1. Respondent, Mitchell Kinzer (Kinzer) has served eight two-year terms on the Surfside Town Commission (Commission); he was mayor for three of those terms, including 1988-90 (term ending in mid-March). He is also an assistant principal in the Dade County public schools and has worked in the Dade County School District for the past thirteen years.

   
   

2. Surfside is a tiny incorporated municipality in Dade County, Florida, with a population of slightly over 4,000 and comprised of less than one-half a square mile. It is governed by a five-member commission, including the mayor. The commissioner who receives the most votes in an election is designated the mayor for that two-year term.

   
   

3. Commissioners, and the mayor, serve with a nominal one-dollar per year compensation. The mayor's role is largely ceremonial. He or she, as well as the commissioners, represent the city at various social, cultural and civic functions. The commission meets once a month and its committees meet more frequently. Its policy directives are executed by the town manager/finance director who serves at the pleasure of the commission.

   
   

   Use of Public Funds

   
   

4. Prior to 1989, the commissioners were reimbursed for their expenses by submitting a voucher or petty cash slip and receipts. There was an annual limit of $800.00 or $1,000.00, with more, probably $1,500.00, for the mayor. From time to time the town manager would challenge these requests as being unrelated to city business. Hal Cohen, who has been Surfside's town manager/finance director since 1981, rarely argues now. In his view there are too many "grey areas" and he has become tired of the debates. Commissioners and their spouses have routinely been reimbursed for expenses related to their attendance at concerts and other events on behalf of the city.

   
   

5. In August 1989, the commission approved a resolution providing a flat monthly rate for the mayor and commissioners. That resolution #1256 took effect October 1, 1989, and provided, in pertinent part:

   
   

   Section 2. That the Mayor of the Town of Surfside be permitted to recover monies in behalf of the Town of Surfside for representing the Town at governmental and civic functions in an amount not to exceed

   $1,500.00 per year in office, prorated and paid monthly in advance.

   Section 3. That the Members of the Town Commission each be permitted to recover monies expended in behalf of the Town of Surfside for official representation, registration and expenses while attending established governmental and civic functions

   in an amount not to exceed $1,000.00 per year in office, prorated and paid monthly in advance. (Advocate's Exhibit #7)

   
   

6. Kinzer understood that the "allowance", as it was called, could be spent on virtually anything, but that any portion that was not used for commission-related duties would have to be reported to the Internal Revenue Service as taxable income. On the advice of his accountant, he kept a running list of his expenditures and submitted the list to Hal Cohen. Other commissioners did not submit such lists.

   
   

7. The following items appearing on Kinzer's list are the subject of the Advocate's prosecution in this case:

   
   

   1. 4/25/90 Plant/Secretary's day $29.63

   2. 4/29/90 Concert ticket and Mileage 17.20

   3. 4/30/90 Police dinner mileage .60

   4. 5/01/90 Long distance call to

      Town Manager 5.00

   5. 5/07/90 Mileage and parking to

      state attorney's office 7.00

   6. 5/16/90 Meal and mileage--Chamber

      of Commerce meeting 20.40

   7. 5/16/90 Theater of Performing

      Arts; mileage 3.00

   8. 5/17/90 Dry cleaning 11.25

      
      

8. In May 1990, the commission approved a resolution deleting the earlier resolution allowing for advance payment of expense monies. The action was made retroactive to May 1, 1990. Kinzer maintained his expense list through the end of May and then quit. The process returned to the reimbursement method that had been in effect before.

   
   

9. Kinzer was reimbursed, or compensated in advance, for each of the items at issue. He contends that they were related to his activities on behalf of the town of Surfside.

   
   

10. The plant was for the town secretary, an individual who worked for the town. In the past, this type of purchase was reimbursed, according to Hal Cohen. The concert expenditure was for Kinzer and his wife. The call to the town manager was related to town business. Hal Cohen lives in Hollywood, Florida, a long-distance toll call. The mileage and parking at the state attorney's office was related to the complaint filed in this case. The police dinner, chamber of commerce meeting and Theatre of Performing Arts were functions at which Kinzer represented the town of Surfside.

    
    

11. Kinzer explained the dry cleaning bill in this manner:

    
    

    Q Okay. What was the council-related duty that resulted in a cleaning bill?

    A Again, I was attending a luncheon for the suit[sic], it was a luncheon and the waiter spilled something all over my suit and I felt that it should be cleaned because I was there representing the town and also I had a sport coat that was soiled at an

    evening a few nights before, so I had those cleaned and I got reimbursement. (Advocate's Exhibit #2, p. 45)

    
    

12. With the exception of the cleaning bill, the items at issue are either plainly related to the commissioner's duty or were the type of items that had been over time considered proper for reimbursement by the town. There was no evidence of guidance provided to the commissioners other than a case by case informal determination by a town manager weary of disputes and subject to removal by a majority of the commission. Although some guidance is provided to employees of the Dade County School District with regard to appropriate expenditures and Kinzer as an assistant principal is aware of that guidance, his duties as an employee of the school board and duties as a city commissioner are quite different.

    
    

    The Board Appointment

    
    

13. On May 8, 1990, the commission adopted a resolution creating a five- member advisory board for the Surfside Community Center for the purpose of advising the commission on improvements of operations and facilities at the center. Appointment to the board was by nomination by a member of the commission with approval by a majority of a quorum.

    
    

14. Regan Kinzer, Respondent's wife, wanted to serve on the new board. He discouraged her as he felt the board was simply political, and one politician in the family was enough. She went to Commissioner Novack who nominated her on June 12, 1990. Her nomination was unanimously approved. Respondent Kinzer was present and voted.

    
    

15. Steven Cypen, the town attorney, had advised previous commissioners that it was proper to vote on appointments of their relatives to uncompensated positions on town boards. Later, he became aware of an Ethics Commission opinion stating that such appointments were improper. Out of an abundance of caution he sent a letter to the affected board members with a copy of the opinion and each such member, including Mrs. Kinzer, resigned.

    
    

    CONCLUSIONS OF LAW

    
    

16. 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.

    
    

17. The burden of proving the elements of Respondent Kinzer's alleged violations is on the advocate for the Ethics Commission. Antel v. Department of Professional Regulation, 522 So2d 1056 (Fla. 5th DCA 1988); Department of Transportation v. JWC Co., Inc., 396 So2d 778 (Fla. 1st DCA 1981); and Balino v. Department of Health and Rehabilitative Services, 348 So2d 249 (Fla. 1st DCA 1977).

    
    

    Section 112.313(6), F.S.

    
    

18. Section 112.313(6), F.S., provides, in pertinent part:

    
    

    (6) MISUSE OF PUBLIC POSITION.--No public officer or employee of an agency shall corruptly use or attempt to use his official position or any property or resource which may be within his trust, or perform his

    official duties, to secure a special privilege, benefit, or exemption for himself or others.

    
    

    "Corruptly" is defined in section 112.312(g), F.S., as:

    
    

    ...done with a wrongful intent and for the purpose of obtaining, or compensating or receiving compensation for, any benefit resulting from some act or omission of a public servant which is inconsistent with the proper performance of his public duties.

    
    

19. Ample authority is cited by the Advocate for the general proposition that entertainment expenses, flowers, and expenses for a spouse are not proper expenditures of public funds. See, for example, Attorney General's opinions 68-

    12 and 71-28. However, those authorities and the Advocate recognize that the legislative or governing body may make a determination of what constitutes a public purpose and may authorize expenditures for that purpose. According to the evidence in this proceeding, the town of Surfside has no clear guidelines, and most of the expenditures at issue here were either acceptable according to past custom and practice or were within the "grey area" described by the city manager.

    
    

20. The dry cleaning expenses are beyond even that grey area. If the cleaning expenses were for a public purpose, why not the purchase of the suit? The absurdity of such a claim simply underscores the fact that a public body which declines to establish proper limits for its members' expenditures is risking repeated complaints and repeated transgressions.

    
    

21. In Blackburn v. State Commission on Ethics, 589 So2d 431, (Fla. 1st DCA 1991) the court held that an essential element of the charged offense under section 112.313(6) is wrongful intent, that is, that the Respondent acted with reasonable notice that his conduct was inconsistent with the proper performance of his public duties and would be a violation of the law or the code of ethics in part III of Chapter 112.

    
    

22. The Advocate failed to prove that essential element with regard to all but the dry cleaning expenditure. She proved the expenditures were made by Kinzer with public funds that were advanced or reimbursed. Kinzer's explanation and that of the town manager/finance officer effectively established that Kinzer had no reasonable notice regarding the impropriety of most of those expenditures.

    
    

    Section 112.3135(2)(a), F.S.

23. Section 112.3135(2)(a), F.S., provides: (2)(a) A public official may not appoint,

    employ, promote, or advance, or advocate for

    appointment, employment, promotion, or advancement, in or to a position in the agency in which he is serving or over which he exercises jurisdiction or control any individual who is a relative of the public official. An individual may not be appointed, employed, promoted, or advanced in

    or to a position in an agency if such appointment, employment, promotion, or advancement has been advocated by a public official, serving in or exercising jurisdiction or control over the agency, who is a relative of the individual.

    
    

24. Although Kinzer did not encourage or advocate his wife's appointment, he did vote to approve it and by so doing participated in the appointment as a member of a collegial body. The evidence establishes that the commission, not the single nominating commissioner, made the appointment.

    
    

25. The proscription of section 112.3135(2)(a), F.S., applies to paid and unpaid boards alike. Galbut v. City of Miami Beach, 605 So2d 466 (3rd DCA 1992) (pending on certified question to the Supreme Court on other issues).

    
    

26. Kinzer's counsel and the town attorney argue that his vote on the appointment was compelled by section 286.012, F.S., which provides, as follows:

    
    

    286.012 Voting requirement at meetings of governmental bodies.--No member of any state, county, or municipal governmental board, commission, or agency who is present at any meeting of any such body at which an official decision, ruling, or other official act is to be taken or adopted may abstain from voting in regard to any such decision, ruling, or act; and a vote shall be recorded or counted for each such member present, except when, with respect to any such member, there is, or appears to be, a possible conflict of interest under the provisions of s. 112.311, s. 112.313, or s. 112.3143. In such cases, said member shall comply with the disclosure requirements of s. 112.3143.

    
    

    Section 112.311(6), F.S., provides:

    
    

    (6) 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. (emphasis added)

    The Ethics Commission has consistently held that a city council's appointment of a council member's relative to a board or authority is a violation of section 112.3135, F.S. (CEO 90-58, CEO 89-53).

    
    

27. It is unnecessary here to reach the issue raised in Galbut, supra, and in some Commission on Ethics (CEO's) opinions regarding whether the related council member's abstention avoids the violation. Kinzel did not abstain. His reliance on prior advice of counsel mitigates, but does not obviate the violation. James Gordon v. Commission on Ethics, 609 So2d 125 (Fla. 4th DCA 1992). In contrast to section 112.313(6), F.S., discussed above, a corrupt or wrongful intent is not an element of a violation of section 112.3135, F.S.

    
    

    Standard of Proof and Penalty

    
    

28. Kinzer's counsel argues that a standard of proof greater than preponderance of evidence be applied, but he cites no authority. In the past the Ethics Commission has applied the preponderance of evidence standard. In re: Leo Nicholas, 11 FALR 5234 (1989). Whether that standard or the stricter "clear and convincing" standard is applied, the advocate has met her burden as discussed above. Even assuming that the ethics code is "penal in nature", as argued, there is no authority for applying the ultimate standard, "beyond a reasonable doubt". See Ferris v. Turlington, 510 So2d 292 (Fla. 1987) for a cogent explanation of the "clear and convincing" standard applicable in license discipline cases, considered penal in nature.

    
    

29. The advocate has recommended restitution of $89.08 and a total civil penalty of $700. Section 112.317(1), F.S. provides a range of penalties for violations of the ethics code by a public officer, which range includes a civil penalty and restitution. The advocate's recommendation is based on proof of several alleged violations. Since all were not proven, her recommendation is adjusted here.

RECOMMENDATION

Based on the foregoing, it is, hereby, RECOMMENDED:

That the Commission on Ethics enter its final order and public report finding that Respondent Kinzer violated section 112.313(6), F.S., with regard to expenditure of $11.25 for dry cleaning, and violated section 112.3135(2)(a), F.S., as alleged in the order finding probable cause; and recommending a civil penalty of $300.00 and restitution of $11.25.

DONE AND RECOMMENDED this 25th day of January, 1994, 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 25th day of January, 1994.

APPENDIX TO RECOMMENDED ORDER, DOAH CASE NO. 93-0313EC

The following constitute specific rulings on the findings of fact proposed by the Respondent:

1. Adopted in substance in paragraph 1.

2. Addressed in statement of issues.

3. Adopted in paragraph 7.

4. Adopted in substance in paragraph 9.

5. Adopted in paragraphs 5 & 6.

6. Adopted in paragraph 4.

7. Adopted in paragraph 6.

8. Adopted in paragraph 9.

9. Adopted in part in paragraphs 1 and 3; otherwise rejected as irrelevant.

10. Adopted in paragraph 14.

11. Adopted in part in paragraph 14; the resolution creating the board provided the method of appointment, including the requirement for vote by the commission; Kinzer voted

12. Adopted in substance in paragraph 15.

13. Addressed in part in conclusions of law, otherwise irrelevant.

[no paragraph 14]

1. Adopted in paragraph 15.

   
   

   COPIES FURNISHED:

   
   

   Virlindia Doss, Esquire

   Advocate for Commission on Ethics Department of Legal Affairs

   The Capitol, PL-01

   Tallahassee, Florida 32399-1050

   
   

   Neal L. Sandberg, Esquire 1492 South Miami Avenue Miami, Florida 33130

   Bonnie Williams, Executive Director Ethics Commission

   Post Office Drawer 15709 Tallahassee, Florida 32317-5709

   
   

   Phil Claypool, General Counsel Ethics Commission

   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 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.

   
   

   =================================================================

   EXECUTIVE ORDER

   =================================================================

   
   

   STATE OF FLORIDA OFFICE OF THE GOVERNOR

   EXECUTIVE ORDER NUMBER 94-125

   
   

   WHEREAS, the people of the State of Florida, by Constitutional Amendment, have declared that a public office is a public trust and the people have a right to secure and sustain that trust against abuse, and

   
   

   WHEREAS, the Commission on Ethics of the State of Florida has been created to represent the people in assuring that public officers do not abuse that trust placed in them, and

   
   

   WHEREAS, the Commission on Ethics found and determined that Mitchell Kinzer was, at all times material hereto, a member of the Surfside Town Commission, subject to the Code of Ethics for Public Officers and Employees, Part III of Chapter 112, Florida Statutes, and to the jurisdiction of the State of Florida Commission on Ethics, and

   
   

   WHEREAS, the Commission on Ethics concluded that Mitchell Kinzer, has violated Section 112.313(6), Florida Statutes, by seeking and receiving reimbursement for dry cleaning; and that he violated section 112.3135(2)(a), Florida Statutes, by participating in his wife's appointment to the town's advisory board, and

   
   

   WHEREAS, the Governor accepts the findings and recommendations of the Commission on Ethics,

   NOW THEREFORE, I, LAWTON CHILES, Governor of Florida, in obedience to my constitutional duty to take care that the laws be faithfully executed, and pursuant to the Constitution and laws of the State of Florida, do hereby promulgate this Executive Order effectively immediately:

   
   

   1. Mitchell Kinzer violated Section 112.313(6), Florida Statutes, by improperly using public funds for personal purposes; and that he violated Section 112.3135(2)(a), Florida Statutes, by participating in his wife's appointment to the town's advisory board.

      
      

   2. A civil penalty in the amount of $300.00 and a penalty of $11.25 restitution, for a total of $311.25, is hereby imposed against Mitchell Kinzer, which penalty shall be satisfied within thirty (30) days of the date of this order.

IN TESTIMONY WHEREOF, I have

hereunto set my hand and caused the Great Seal of the State

of Florida to be affixed

at Tallahassee, the Capitol, this 31st day of May, 1994.

LAWTON CHILES GOVERNOR

JIM SMITH SECRETARY OF STATE

=================================================================

DISTRICT COURT OPINION

=================================================================

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DISPOSED OF.

MITCHELL KINZER IN THE DISTRICT COURT OF APPEAL OF FLORIDA

Appellant, THIRD DISTRICT

JANUARY TERM, A.D. 1995

vs.

CASE NO. 94-1265

STATE OF FLORIDA COMMISSION DOAH CASE NO. 93-313EC ON ETHICS,

Appellee.

/ Opinion filed May 10, 1995.

An appeal from the State of Florida commission on Ethics.

Simon Schindler & Sandberg and Theodore R. Dempster, for appellant.

Robert A. Butterworth, Attorney General, and Virlindia Doss, Assistant Attorney General, for appellee.

Before SCHWARTZ C.J., and NESBITT and COPE, JJ.

COPE, Judge.

Mitchell Kinzer appeals a final order of the Florida commission on Ethics.

We reverse.

Kinzer has served for many years as a member of the Surfside Town Commission. Surfside is an incorporated municipality in Dade County, Florida, having a population of approximately 4,000 people. The Ethics Commission made a finding that Kinzer had violated the anti-nepotism law, 5 112.3135, Fla. Stat. (1989) by reason of a 1990 vote in favor of his wife's appointment to an unpaid advisory board. 1/ The Ethics commission recommended imposition of a civil penalty, 2/ and Kinzer appealed.

During the pendency of this appeal, the Legislature amended the anti- nepotism law. Insofar as pertinent here, the amended anti-nepotism law does "not apply to appointments to boards other than those with land planning or zoning responsibilities in those municipalities with less than 35,000 population." s 112.3135 (2)(a), Fla. Stat. (Supp. 1994), as amended by Ch. 94-

277 s 2, Laws of Fla. Since the Town of Surfside has a population of

approximately 4,000 people, the 1994 amendment applies to Surfside. Under the amended statute, there was no impropriety in Kinzer's voting on his wife's appointment to the advisory board.

Kinzer argues that the 1994 amendment worked a partial repeal of the anti- nepotism law insofar as it applies to municipalities like Surfside. He contends that the partial repeal requires that he be exonerated of the charge that he violated the anti-nepotism statute. We agree.

The anti-nepotism law is a civil statute of a penal nature. See City of Miami Beach v. Galbut 626 So.2d at 194. Under section 112.31, Florida Statutes (1989), there are civil penalties for the violation of the anti-nepotism law, but no criminal penalties. 3/ The Ethics Commission's recommendation in this case was the imposition of a civil penalty.

The rule applicable here is as follows:

This suit, though in form a civil one at law, was for the recovery of a sum that was clearly penal in its character. Indeed, the section of the statute under which it was brought

characterizes it as a "penalty" to be recovered at the suit of the state. The law seems to

be quite clearly settled that in actions of a penal character, depending upon a statute, the repeal of the statute pending an appeal will deprive the appellate court of any power to render a judgment by which this penalty may be enforced, and that the effect of a repealing statute is to obliterate the statute repealed as completely as if it had never been enacted, except for the purpose

of those actions or suits which were commenced, prosecuted, and concluded whilst it was an existing law, and that an action cannot be considered as concluded

while an appeal therein is Pending before an appellate court having jurisdiction to review it....[T]he repeal of the statute imposing such penalty operates as a release or remission of such penalty where there is no saving clause

as to cast violations of such repealed statute, and, after the repealing takes effect,

no further proceedings can be taken under the law so repealed to enforce the penalty; and

.... this rule applies to proceedings upon appeal in the appellate court, as well as to he court having original jurisdiction of the case, and as well when the repeal of the law took effect after the removal of the cause to the appellate court as before.

Pensacola & A. P. Co. v. State, 45 Fla. 86, 33 So. 985, 986 (1903)(citations omitted; emphasis added); Navarro v. Barnett Bank, 543 So.2d 30, 306 (Fla. 1st DCA 1989); Bureau of Crimes Compensation v. Williams, 405 So.2d 4, 48 (Fla. 2d DCA 1981) review denied, 412 So.2d 41 (Fla. 1982); Gewant v. Florida Real Estate

Comm'n, 166 So.2d 230, 232-33 (Fla. 3d DCA 1964); see also State ex rel. Arnold

v. Revels, 109 So.2d 1, 3 (Fla. 1959) 4/ We conclude that the order finding Kinzer violation of the antenepotism law must be reversed. 5/

The Ethics Commission also found that Kinzer had violated subsection 112.313(6), Florida Statutes (1989), by seeking and receiving reimbursement for an expenditure of $11.25 for dry cleaning. The Ethics Commission recommended that Kinzer be required to make restitution of the $11.25, and that a civil penalty be imposed. We reverse on this point as well.

Commissioners for the Town of Surfside receive $1.00 per year in compensation. The Town Commission passed a resolution authorizing Commissioners "to recover monies expended in behalf of the Town of Surfside for official representation, registration and expenses while attending established governmental and civil functions in an amount not to exceed 1,000.00 per year in office.

At the time pertinent here, the reimbursement procedure was for the Commissioner to submit a reimbursement request to the Town Manager for approval. The Town does not have any written guidelines giving specific direction as to what expenses are reimbursable, and reimbursement requests were processed on a case-by-case basis. The Town Manager testified that he rarely questioned the Commissioners' expenditures. "There is a vast gray area where reasonable people can differ and I just got tired o debates about it, and I felt I would let each Commissioner use his own judgment unless there was something clearly out of line."

The Ethics Commission challenged Kinzer's receipt of reimbursements for eight Items in April and May, 1990, totalling approximately $84.00. The hearing officer found in Kinzer's favor on seven of the eight items. The hearing officer ruled against Kinzer, however, on a dry cleaning bill in the amount of

$11.25.

Kinzer testified that while attending a function on behalf of the Town a waiter had spilled food on him. A similar incident had occurred several days previously. The $11.25 claim was for the dry cleaning expense occasioned thereby. The dry cleaning claim was clearly labelled as such when submitted to the Town Manager for reimbursement. The Town Manager authorized payment of the reimbursement.

The Ethics Commission proceeded against Kinzer under subsection 112.313(6), Florida statutes (1989), which provides:

1. MISUSE OF PUBLIC POSITION. No public officer or employee of an agency shall corruptly use or attempt to use his official position or any property or resource which may be within his trust, or perform his official duties, to secure a special privilege, benefit, or examption for himself or others.

   
   

   Id. (emphasis added)

   
   

   One of the key terms in subsection 112.313(6) is the word "corruptly." It is defined by statute as follows: "`corruptly' means done with a wrongful intent and for the purpose of obtaining, or compensating or receiving compensation or, any benefit resulting from some act or omission of a public servant which is inconsistent with the proper performance of his public duties."

   Id. ss 112.312 (7). "The statutory defintion of `corruptly' in section 112.312

2. not only requires that the conduct complained of be done with a wrongful intent, it also requires that the `act or omission' be `inconsistent with the proper performance of [the public servant's] public duties. Blackburn v, State Comm'n on Ethics, 589 So.2d 431, 436 (Fla. 1st DCA 1991); see also Tenney v, State Comm'n on Ethics, 395 So.2d 1244, 1246 (Fla. 2d DCA 1981)

We conclude that there is no substantial competent evidence to support a determination that Kinzer acted corruptly. The request for reimbursement clearly and accurately identified what the reimbursement was for. The Town had traditionally taken an expansive view of what constituted a reimbursable expense for commissioners. 6/ The Town Manager approved this expenditure for payment which he would do if he viewed the request as being somewhere within the zone of reasonableness. There simply is no substantial competent evidence which supports a determination that Kinzer acted with any wrongful intent, nor that he obtained some financial benefit inconsistent with the proper performance of his public duties. see Blackburn, 589 So.2d at 436. Consequently, we reverse the finding that Kinzer violated subsection 112.313(6). 7/

The final order of the Ethics Commission is reversed and the cause remanded with directions to enter a final order in favor of Kinzer.

ENDNOTES

1/ The Town Attorney advised Kinzer that he had a legal duty to vote under section 286.012 Florida Statutes (1989), and that there was no exception for the anti-nepotism law.

The Legislature has since clarified the anti-nepotism law where the appointing authority is a collegial body. See s 112.3135, Fla. Stat. (Supp. 1994), as amended by Ch. 942, s 2, at 1962, Laws of Fla. The 1994 amendments were apparently prompted by the decision in City of Miami beach v. Galbut 626 So.2d 192 (Fla. 1993), aff'a Galbut v. City of Miami Beach, 605 So.2d 466 (Fla. 3d DCA 1992)

2/ If the Ethics commission finds a violation, it is the duty of the Commission "to report its findings and recommend appropriate action to the proper disciplinary official or body[.]" s 112.324 (7),Fla. Stat. (1993). The proper disciplinary official in this case is the Governor. Id. s 112.324 (7)(a) The final action by the Ethics Commission is an appealable order. Id. s 112.3241.

3/ The 1989 version of the statutory penalties is applicable to the 1990 appointment at issue here.

4/ The result is otherwise where there is a repeal or amendment of a criminal statute, because the Florida constitution provides, "Repeal or amendment of a criminal statute shall not affect prosecution or punishment for any crime previously committed." Art. X, ss 9, Fla. Const. (1968); see also Pensacola & A.

1. Co. v. State, 45 Fla. 86, 33 So. at 986 (construing 1885 constitution)

   
   

   5/ Kinzer argues alternatively that he is entitled to have the order reversed even if the anti-nepotism law had not been partially repealed, given the terms of section 286.012, Florida Statutes (1989), and the Town Attorney's interpretation thereof. we need not reach this issue.

   
   

   6/ This view undoubtedly was influenced in part by the fact that the Commissioners receive a nominal salary of $1.00 per year.

   7/ If the Ethics commission believes that the substance of the Town of Surfside's reimbursement policy should be changed, or that the Town should adopt more particularized procedures, the Ethics Commission should make such a report and recommendation to the Town Manager or Commission.

   
   

   MANDATE

   DISTRICT COURT OF APPEAL OF FLORIDA THIRD DISTRICT

   DCA 94-1265 MITCHELL KINZER

   
   

   vs.

   
   

   STATE OF FLORIDA COMMISSION ON ETHICS

   
   

   This cause having been brought to this Court by appeal, and after due consideration the Court having issued its opinion;

   
   

   YOU ARE HEREBY COMMANDED that such further proceedings be had in said cause in accordance with the opinion of this Court attached hereto and incorporated as part of this order, and with the rules of procedure and laws of the State of Florida.

   
   

   Case No. 90-163

   
   

   WITNESS, The Honorable ALAN R. SCHWARTZ

   
   

   Chief Judge of said District Court and seal of said Court at Miami, this 26th day of May, 1995

   
   

   
   

   Mary C. Blanks

   Chief Deputy Clerk District Court of Appeal of Florida,

   Third District

   ================================================================= AGENCY FINAL ORDER

   =================================================================

   
   

   BEFORE THE STATE OF FLORIDA

   COMMISSION ON ETHICS

   
   

   In re MITCHELL KINZER, Complaint No. 90-163

   DOAH CASE NO. 93-313EC

   Respondent. Final Order No. COE 95-13

   /

   
   

   FINAL ORDER AND PUBLIC REPORT

   UPON MANDATE OF THIRD DISTRICT COURT OF APPEAL

   
   

   This matter came before the Commission on Ethics, meeting in public session on July 13, 1995, upon the mandate of the Third District Court of Appeal issued in Mitchell Kinzer v. State of Florida Commission on Ethics, Docket No. 94-1265. The Court's opinion in this case reverses the Commission's final order and remands with directions to enter a final order in favor of the Respondent.

   
   

   Pursuant to this mandate, the Commission finds that the Respondent, as a member of the Surfside Town Commission, did not violate Sections 112.313(6) and 112.3135(2)(a), Florida Statutes, as alleged. Accordingly, the complaint is dismissed.

   
   

   ORDERED by the State of Florida Commission on Ethics this 13th day of July, 1995.

   
   

   July 18, 1995

   Date Rendered

   
   

   
   

   William J. Rish Chairman

   
   

   COPIES FURNISHED:

   
   

   Mr. Neal L. Sandberg, Attorney for Respondent Ms. Virlindia Doss, Commission Advocate Honorable Mary Clark, Hearing Officer Division of Administrative Hearings

   ================================================================= AGENCY FINAL ORDER

   ================================================================= STATE OF FLORIDA

   In re Mitchell Kinzer, CASE NO. 90-163

   DOAH CASE NO. 93-313EC

   Petitioner, Final Order No. COE 94-16

   /

   
   

   FINAL ORDER AND PUBLIC REPORT

   
   

   This matter came before the Commission on Ethics on the Recommended Order rendered in this matter on January 25, 1994 by the Division of Administrative Hearings' Hearing Officer. The Hearing Officer recommends that the Commission issue its public report and final order finding that Respondent violated Section 112.313(6), Florida Statutes, with regard to the expenditure of $11.25 for dry cleaning and Section 112.3135(2)(a), Florida Statutes, by participating in his wife's appointment to the Community Center Advisory Board. She also recommends a penalty of $11.25 restitution and $300 civil penalty, for a total of $311.25. The Respondent filed his exceptions on February 11, 1994 along with a Motion for Continuance of the Commission hearing scheduled for March 10, 1994 in order that he might have the opportunity to file a transcript of the DOAH hearing. The Motion was granted by Order of the Commission Chairman on February 16, 1994, and the transcript subsequently was filed on March 14, 1994. The Commission Advocate filed her Response to Exceptions on March 28, 1994.

   
   

   Having reviewed the Recommended Order, the Respondent's Exceptions, the record of the public hearing of this complaint, including the transcript, and the Commission Advocate's Response to Exceptions, and having heard arguments of counsel for the Respondent and the Commission's Advocate, the Commission makes the following findings, conclusions, rulings, and recommendations:

   
   

   STANDARDS FOR REVIEW

   
   

   Under Section 120.57(1)(b)10, Florida Statutes, an agency may reject or modify the conclusions of law and interpretations of administrative rules contained in the recommended order. However, the agency may not reject or modify findings of fact made by the Hearing Officer unless a review of the entire record demonstrates that the findings were not based on competent, substantial evidence or that the proceedings on which the findings were based did not comply with the essential requirements of law. See, e.g., Freeze v. Debt. of Business Regulation, 556 So.2d 1204 (Fla. 5th DCA 1990); and Florida DeDartment of Corrections v. Bradley, 510 So.2d 1122 (Fla. 1st DCA 1987). competent, substantial evidence has been defined by the Florida Supreme court as such evidence as is "sufficiently relevant and material that a reasonable mind would accept it as adequate to support the conclusions reached." DeGroot v.

   Sheffield, 95 So.2d 912, 916 (Fla. 1957).

   
   

   The agency may not reweigh the evidence, resolve conflicts therein, or judge the credibility of witnesses, because those are matters within the sole province of the hearing officer. Heifetz v. Dept. of Business Regulation, 475

   So.2d 1277, 1281 (Fla. 1st DCA 1985). consequently, if the record of the DOAH proceedings discloses any competent, substantial evidence to support a finding of fact made by the Hearing officer, the Commission is bound by that finding.

   
   

   Rulings on Respondent's Exceptions

   
   

   1. A review of Respondent's "Exceptions to Recommended order" reveals that, although Respondent incorporates into his exceptions a "Preliminary Statement," "Summary of Hearing Officer's Recommendation," and "Introductory Facts" which are subdivided into "The $11.25 Expenditure" and "Appointment of Regan Kinzer," his only specific reference is to paragraph 12 of the Hearing officer's Findings of Fact which we discuss in paragraph 2 below. The remainder of Respondent's exceptions are arguments which are not specifically directed at any particular paragraph of the Hearing Officer's Conclusions of Law.

      Respondent does not indicate that any of the Hearing Officer's specific findings of fact are not supported by competent substantial evidence.

      
      

   2. With respect to the "$11.25 Expenditure," Respondent argues that because the City of Surfside had no guidelines as to what was an appropriate expenditure for reimbursement to a member of the City Council and because there was no showing that the Respondent acted with wrongful intent, the Hearing Officer could not conclude that he acted corruptly, as is required for a violation of section 112.313(6), Florida Statutes, to exist. With respect to the appointment of Respondent's wife to the Advisory Board of the Surfside community Center, Respondent reiterates his argument, which was rejected by the Hearing officer, that his vote on his wife's appointment was compelled by Section 286.012, Florida Statutes.

      
      

   3. To the extent that through his inclusion of his "Preliminary Statement," "Summary of Hearing Officer's Recommendation," "Introductory Facts," and argument, Respondent is requesting that the facts found by the Hearing Officer be supplemented, his exceptions are rejected. As stated by the court in Heifetz v. Department of Business Regulation. Division of Alcoholic Beverages & Tobacco, 475 So.2d 1277, 1281 (Fla. 1st DCA 1985):

      
      

      It is the hearing officer's function to consider all the evidence presented, resolve conflicts, judge credibility of witnesses, draw permissible inferences from the evidence, and reach ultimate findings of fact based on competent substantial evidence. State Beverage Department v. Ernal. Inc., 115 So.2d

      566 (Fla. 3d DCA 1959). If as is often the case, the evidence presented supports two inconsistent findings, it is the hearing officer's role to decide the issue one way or the other.

      
      

      It is not our function to reweigh the evidence as long as there is competent substantial evidence to support the Hearing Officer's findings, as there is here. Inasmuch as the Hearing Officer fulfilled her function of weighing the evidence, judging the credibility of the witnesses, and drawing permissible

      inferences from the evidence, we are not free to supplement her findings. See Manasota 88. Inc. v. Tremor, 545 So.2d 439 (Fla. 2d DCA 1989), where the court stated:

      
      

      Agency fact-finding independent of and supplementary to D.O.A.H. proceedings has been Specifically disapproved. See e.g.. Friends of Children v. Department of Health and Rehabilitative Services, 504 So.2d 1345 (Fla.

      1st DCA 1987).

      
      

   4. In paragraph 12 of the Recommended Order, the Hearing Officer finds that, with the exception of the cleaning bill, the items at issue were either plainly related to Respondent's duties or were the type of items that had been considered proper for reimbursement by the Town. She also found that there was no evidence of guidance provided to the Commissioners other than a case-by-case informal determination by the Town Manager, who also was weary of disputes and subject to removal by a majority of the Town Commission. However, Respondent argues, there was no specific prohibition against his utilizing $11.25 for dry cleaning. He also argues that it had been the position of the Town Commission and the city Attorney that the "stipend" could be used for any purpose whatsoever provided that it did not exceed the annual budgeted amount.

      
      

   5. Although there is some question about whether Respondent received a stipend under the county's pre-May 1990 policy, his claim that the "stipend" could be used for any purpose whatsoever provided that it did not exceed the annual budgeted amount is correct, if it were a "stipend." However, the $11.24 drycleaning reimbursement did not come out of the flat allowance that Respondent refers to (if it had, questions as to its propriety would have been for the Internal Revenue Service, not for the Commission on Ethics). Therefore, the question is whether the $11.25 dry cleaning reimbursement came within the terms of Resolution 1272 that is, whether the expenditure was made "in behalf of the Town. . . for official representation, registration and expenses while attending established governmental functions in an amount not to exceed $1,000 per year in office." Even allowing for some gray areas, the $11.25 cleaning bill reimbursement clearly did not come within the terms of that resolution. Therefore, we find that the Hearing Officer's finding is supported by competent substantial evidence of record.

      
      

   6. In justifying the $11.25 cleaning expense, Respondent argues that any expense incurred which would not have been incurred but for one's service as a "municipal representative" is related to the business of the City. He also argues that the $11.25 expense was related to city business, was not in contravention of City policy or rules, and was not an expenditure that Respondent endeavored to conceal. His argument, which attempts to justify reimbursement of virtually any expense by a member of the governing body, is rejected for the reasons stated in paragraph No. 2 above.

      
      

   7. Respondent argues that the Hearing Officer was required to make a factual finding that the $11.25 cleaning expense was incurred with corrupt intent in violation of Section 112.313(6), Florida Statutes. He writes, "[c]orruptly" is defined in Section 112.312(9), F.S. as "done with wrongful intent."

      
      

   8. We find that Respondent's statement is only partially correct. The definition of "corruptly" is set forth at page 7, paragraph 18 of the Hearing Officer's Conclusions of Law. Applying this definition to Section 112.313(6),

      Florida Statutes, the Hearing Officer was required to find that the Respondent acted with wrongful intent to obtain a benefit and such act was inconsistent with the proper performance of his public duties.

      
      

   9. Respondent argues that because Section 112.313(6), Florida Statutes, is penal in nature, the Supreme Court has held that "it must be construed strictly as an act of such highly penal character is required to be construed." In City of Miami Beach v. Galbut, 626 So.2d 192 (Fla. 1993), the Supreme Court in approving a strict construction of the anti-nepotism law (Section 112.3135(2)(a), Florida Statutes) wrote:

      
      

      When a statute imposes a penalty, any doubt

      as to its meaning must be resolved in favor of strict construction so that those covered by the statutes have clear notice of what conduct the statute proscribes. State v. Llopis, 257 So.2d 17, 18 (Fla. 1971).

      
      

      Id.. at 194. While we accept Respondent's argument, we find that a strict construction of Sections 112.313(6) and 112.3135(2)(a), Florida Statutes, does not alter the conclusions reached by the Hearing Officer.

      
      

   10. Respondent argues, "it is apodictic that a person acting corruptly endeavors to conceal his acts," and the fact that Respondent made public his expenditure controverts a finding of corrupt intent. Respondent argues that his actions were "candid, forthright, patent and undertaken without any guidelines as to what is and is not considered by the City Commission-to be the business of the City.

       
       

   11. Initially, we note our disagreement with Respondent's tenet that a person acting corruptly endeavors to conceal his acts. We find that this is not always true. secondly, while Respondent's actions may have been "candid, forthright, [and] patent, his disclosure of his expenditures was a necessary prerequisite for reimbursement for the month in which the City returned to its reimbursement system, retroactive to the first of the month. At the end of that month, Respondent quit maintaining his list. See Finding of Fact No. 8; Tr.

1. Respondent only kept his list on the advice of his accountant (Finding of fact No.6, Advocate's Exhibit A2, p. 24), who had advised him that town related expenses would not be taxed as income. Respondent kept the list out of his own self interest. We ascribe no special credit to Respondent for his disclosure. We are of the opinion that Respondent's disclosure of his list does not demonstrate a lack of wrongful intent, as Respondent contends. Finally, we note that with the exception of the cleaning expense, the Hearing Officer considered the fact that Respondent had no reasonable notice regarding the impropriety of most of the expenditures for which he sought reimbursement (See Conclusion of Law No. 22) a factor in her concluding that there was no wrongful intent. In this respect, the Hearing officer agrees with Respondent's contention, and we do not disagree. However, with respect to the cleaning expense, the Hearing Officer properly inferred wrongful intent from her finding absurd Respondent's claim that the expense was for a public purpose.

   
   

   1. Respondent argues that in order to find that he violated Section 112.313(6), a finding of specific intent is required. He argues that we must find that he "knowingly knew his conduct was wrongful and that [he] intentionally engaged in [the] wrongful conduct." He claims that no such finding is sustainable by the record.

   2. We disagree and reject the Respondent's exception. We find that the Hearing officer, noting the Court's admonition in Blackburn v, State Commission on Ethics, 589 So.2d 431 (Fla. 1st DCA 1991) that an essential element of Section 112.313(6) is a finding that Respondent acted with reasonable notice that his conduct was inconsistent with the proper performance of his public duties and would be a violation of the law or the Code of Ethics, gave Respondent the benefit of the doubt on all but one of the challenged expenditures, but recognized that Respondent could not honestly have believed that the city was responsible for his dry cleaning. The determination that Respondent acted with corrupt intent essentially is a question of fact. See, Heifetz, supra, at 1282. ("Characteristically, whether one is guilty of negligence is a question for the trier of fact" even where the finding has been stated in terms of conclusion of law.) See also Dobry v. State, 211 So.2d 603 (Fla. 3d DCA 1968). Intent is seldom susceptible of direct proof but is usually shown by circumstantial evidence. Busch v. State, 466 So.2d 1075 (Fla. 3d DCA 1984), Williams v. State, 239 So.2d 127 (Fla. 4th DCA 1970). Where the evidence will support conflicting findings, it is the hearing officer's role to decide the issue one way or the other (Heifetz, at 1281), as she did here. The Hearing Officer essentially found that Respondent knew that the dry cleaning expense was improper. There is competent substantial evidence of record to support the Hearing officer's finding.

      
      

   3. With respect to the Hearing Officer's conclusion that Respondent violated Section 112.3135(2)(a), Florida Statutes, by voting for the appointment of his wife to the Advisory Board of the Surfside community Center, Respondent essentially argues again that he was compelled by Section 286,012, Florida Statutes, to vote on his wife's appointment. For the reasons stated in the Hearing Officer's Conclusions of Law, Respondent's exception is rejected.

      
      

   4. Section 286.012 allows abstention when "there is, or appears to be, a possible conflict of interest under the provisions of Sections 112.311, 112.313, or 112.3143, Florida Statutes." Section 112.311, states, in part:

      
      

      1. 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.

         
         

         (6) 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. (Emphasis supplied.)

         
         

         Respondent could have abstained from voting based on this section and would not have been in violation of Section 286.012, Florida Statutes.

         
         

   5. 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).

FINDINGS OF FACT

Upon review of the record before us, we conclude that the findings of the Hearing officer are based upon competent substantial evidence and that the

D.O.A.H. proceedings complied with the essential requirements of law. Therefore, the Findings of Fact set forth in the Recommended order are approved, adopted, and incorporated herein by reference.

CONCLUSIONS OF LAW

The conclusions of Law set forth in the Recommended order are approved, adopted, and incorporated herein by reference.

Accordingly, the commission on Ethics finds that the Respondent violated Section 112.313(6), Florida Statutes, by seeking and receiving reimbursement for his expenditure of $11.25 for dry cleaning and Section 112.3135(2)(a), Florida Statutes, with regard to his voting on the appointment of his wife to the Town's advisory board.

RECOMMENDED PENALTY

The Hearing Officer recommended that Respondent be required to pay a penalty of $11.25 restitution and a civil penalty of $300.00, for a total of

$311.25. We find her recommendation to be appropriate.

Having found that the Respondent, Mitchell Kinzer, as a member of the Surfside Town Commission, violated Sections 112.313(6) and 112.3135(2)(a), Florida Statutes, it is the recommendation of the Commission on Ethics that a penalty of restitution of $11.25 and a civil penalty of $300.00 be imposed upon him, for a total of $311.25.

ORDERED by the State of Florida Commission on Ethics meeting in public session on April 21, 1994.

THIS ORDER CONSTITUTES FINAL AGENCY ACTION. ANY PARTY WHO IS ADVERSELY AFFECTED BY THIS ORDER HAS THE RIGHT TO SEEK JUDICIAL REVIEW UNDER SECTION 120.68, FLORIDA STATUTES, BY FILING A NOTICE OF ADMINISTRATIVE APPEAL PURSUANT TO RULE 9.110 FLORIDA RULES OF APPELLATE PROCEDURE, WITH THE CLERK OF THE COMMISSION ON ETHICS, 2822 REMINGTON GREEN CIRCLE, SUITE 101, P.O. DRAWER 15709, TALLAHASSEE, FLORIDA 32317-5709; AND BY FILING A COPY OF THE NOTICE OF APPEAL ACCOMPANIED BY THE APPLICABLE FILING FEES WITH THE APPROPRIATE DISTRICT COURT OF APPEAL. THE NOTICE OF ADMINISTRATIVE APPEAL MUST BE FILED WITHIN 30 DAYS OF THE DATE THIS ORDER IS RENDERED.

cc: Mr. Neal L. Sandberg, Attorney for Respondent Ms. Virlindia Doss Commission Advocate Honorable Mary Clark, Hearing Officer Division of Administrative Hearings

Docket for Case No: 93-000313EC

Orders for Case No: 93-000313EC