STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
IN RE: JAMES BARKER, )
) CASE NO. 93-3911EC
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Susan B. Kirkland, held a formal hearing in this case on March 9, 1994, in Miami, Florida.
APPEARANCES
Advocate: Virlindia Doss, Esquire Department of Legal Affairs The Capitol, PL-01
Tallahassee, Florida 32399-1050
For Respondent: Raoul G. Cantero, Esquire
2601 South Bayshore Drive, Suite 1600
Miami, Florida 33133 STATEMENT OF THE ISSUES
Whether Respondent violated Section 112.313(4), Florida Statutes, and, if so, what penalty should be imposed.
PRELIMINARY STATEMENT
On April 28, 1993, the State of Florida Commission on Ethics (Commission) issued an Order Finding Probable Cause against Respondent, James Barker (Barker), for violations of Section 112.313(4), Florida Statutes, for accepting a complimentary membership in the Country Club of Coral Gables (Country Club) and in the Coral Gables Executive Club (Executive Club), when he knew or should have known it was given to influence his vote or official actions. Barker requested a public hearing, and the case was forwarded to the Division of Administrative Hearings on July 14, 1993 for assignment to a hearing officer.
The case was originally assigned to Hearing Officer David Maloney but was transferred to Hearing Officer Susan B. Kirkland. The case was scheduled for hearing on November 17, 1993, and on November 10, 1993, the Advocate filed a Motion for Continuance. The motion was granted, and the hearing was rescheduled for March 9, 1994.
The parties stipulated to the facts contained in Section "D" of the parties' Prehearing Stipulations filed on March 4, 1994. At the final hearing, the Advocate presented the testimony of, Albert Sakolsky, which had been presented in In Re: Robert Zahner, DOAH Case No. 93-3909EC. Advocate's Exhibits 1-16 were admitted into evidence. Advocate's Exhibits 1-12 were also admitted into evidence in In Re: Hildreth, DOAH Case No. 93-3908EC and Zahner, supra.
Respondent testified on his own behalf and presented Robert Hildreth, Robert
Zahner and Edwin Brownell as witnesses. The testimony of Mr. Hildreth, Mr. Zahner and Mr. Brownell were also accepted as testimony presented in Zahner and Hildreth, supra. Respondent's Exhibits 1-3 were admitted into evidence.
The parties agreed to file the proposed recommended orders within ten days of the filing of the transcript. The transcript was filed on April 7, 1994.
The parties timely filed their proposed recommended orders. The parties' proposed findings of fact are addressed in the Appendix to this Recommended Order.
FINDINGS OF FACT
Respondent, James Barker (Barker), has been a city commissioner for the City of Coral Gables (City) since 1989.
The Country Club of Coral Gables (Country Club) was established by City founder George Merrick, prior to the City's incorporation. Since 1929, the City which owns the land and buildings from which the Club operates, has leased the property to private entities.
Since 1935, the lessee of the property has been the Country Club, a non-profit corporation run by a board of directors elected by the Country Club membership.
Between 1935 and 1958, the lease underwent various modifications and extensions. In 1958, the City Commission voted to extend the lease to July 31, 1990. Under the terms of the lease, the Country Club paid three percent of its gross annual income, but in no case less than $5,000 per year, to the City as rent.
In 1977, the Country Club again came before the City Commission requesting a lease extension, this time to the year 2002. There was no change in the rent amount. The request for extension was to allow the Country Club to borrow money for construction, and the request was approved.
In 1978 the Country Club asked the City Commission for rezoning so that it could expand its tennis courts. This request was approved.
In May, 1980, the Country Club asked the City Commission for a $23,000 loan to repair its roof. The City Attorney advised that the City could not lawfully make such a loan, and no further action was taken on the matter.
In 1981 the Country Club asked to expand its tennis club facilities, and this request was approved.
In 1983 a significant portion of the Country Club burned down.
A request by the Country Club to support its efforts to raise funds from citizens for the Country Club, was on the July 26, 1983, City Commission agenda, but was not taken up. A discussion of the status of the building was held on that date, but no action was taken.
Instead of rebuilding the burned section with the insurance money, the Country Club decided to construct an already planned new section. On November 22, 1983, representatives of the Country Club presented a plan for restoration to the City Commission, which on motion of Commissioner Kerdyk, approved the plan.
On March 27, 1984, the City Commission authorized the City Manager to sign an affidavit needed by the Country Club to obtain a building permit.
In April 1984, the Country Club requested extension of its lease to the year 2020. On motion of Commissioner Kerdyk, the City Commission agreed to the extension.
In September 1984, the Country Club asked that the lease be reworded in order to satisfy the lending institutions from which the Country Club was borrowing money for renovations. The request was approved.
When the Country Club initially undertook its restoration and remodeling plan, the Country Club leadership believed that there would be sufficient funds to accomplish both the rebuilding and the new construction. Cost overruns, diminishing membership, and other factors combined, however, to leave the Country Club with a new section, an old, burned-out section, and a significant debt. In 1987, the Country Club asked the City Commission to assist it, by contributing funds or otherwise, in overcoming that debt.
On November 24, 1987, the City Commission met and discussed the problem. The only action taken was to invite the Country Club leadership to an up coming City Commission meeting to discuss proposed improvements.
On January 26, 1988, the City Commission met with the Board of Directors of the Country Club to discuss the Country Club's request. The City Commissioners were informed that the Country Club's rent payments had been generating approximately $40,458.64 per year in income to the City. The Country Club vice-president proposed that the City rebuild the outside shell of the building, at a cost of $1,000,362 and the Country Club finance the remainder of the construction, about $1,900,000. The City Attorney advised that the City could not loan funds to the Country Club, because it was a private club. However, he opined that the City could participate in the rebuilding because it was the owner of the property. Action was postponed until the next meeting.
On February 3, 1988, the Country Club made an offer to the City to increase its rent payment from three percent to six percent, if the City would rebuild the shell.
The matter was raised at the February 9, 1988, meeting of the City Commission. Mayor Corrigan proposed that the City finance the rebuilding, but made no motion. Commissioner Wolff proposed that the City obtain funds from the Sunshine State Governmental Financing Commission and lend that money to the Country Club. The motion was seconded by Commissioner Kerdyk, and ultimately the City Commission resolved to refer the matter to the acting city manager to "work out financing without using taxpayer dollars."
At the February 9 meeting, discussion was had on the issue of whether the City Commissioners had conflicts of interest, since they all had complimentary memberships to the Country Club. Mr. Zahner, the City Attorney, advised that they had no conflict. The issue of conflict of interest was again raised at subsequent meetings.
Alternative proposals identified by the City Manager for funding the Country Club's rebuilding were discussed at the City Commission's March 8, 1988 meeting, but no action was taken.
On June 30, 1988, the Country Club proposed that the City forgive lease payments until the year 2000.
On August 30, 1988, the City Commission voted to suspend the lease payments, with the funds going instead to the maintenance and reconstruction of the facility.
Membership in the Country Club is open to any person, provided they can pay the initiation fee and membership dues.
At all times pertinent to this proceeding, the initiation fee was
$1,000, although it sometimes was reduced to $500 during membership drives. The annual fee was $750.
Membership entitles the member and his or her family to use the swimming pool, health club, tennis courts, and bar and restaurant. Members must pay for their meals. Occasionally Barker would stop by the Country Club for cocktails or brunch.
For more than twenty years the Country Club has traditionally awarded memberships to city officials and various other persons. The Country Club bylaws provide for such memberships. The bylaws provide for honorary memberships and complimentary memberships. Only one honorary membership has been given. The only difference between what the Country Club calls a complimentary membership and an honorary membership is the duration of the membership.
Complimentary memberships run from year to year. Persons awarded complimentary memberships include the City Commissioners, Mayor, City Manager, Assistant City Managers, the City Clerk, City Attorney, Director of Public Works, Finance Director, City Architect, Fire and Police Chief, the University of Miami President, Football Coach, and Assistant Athletic Director, the Golf Pro at the City golf course, and the editor of the local social magazine. The complimentary memberships are reviewed each year and are not renewed after the recipient leaves his or her office.
The Coral Gables Executive Club (Executive Club) is located in an office building at 550 Biltmore Way. The building and the Executive Club are owned by Albert Sakolsky, a local real estate developer.
The Executive Club, which opened in the late 1980's, consists of a dining room and health club. Membership costs $700.00 initiation, and $50.00 per month dues.
Mr. Sakolsky hired a public relations firm to promote the Executive Club. The firm recommended that complimentary memberships be given to community leaders and developed a list of persons who receive memberships. Over a hundred free memberships were granted.
In February, 1989, Mr. Sakolsky wrote to City Manager Jack Eads, presenting the City with a "permanent corporate membership." Although the letter appeared to infer that the use of the health facilities would be free to those applying through the City's corporate membership, the practice was to change holders of complimentary memberships such as Barker $30 a month for the use of the health facilities if they desired to use them.
With his letter, Mr. Sakolsky included membership applications for all the City Commissioners, as well as the Mayor the City Attorney, and Mr. Eads.
Mr. Sakolsky and the City had had numerous disputes over the years on various issues. His presentation of the free corporate membership was an effort to, in his words, "bury the hatchet."
A complimentary membership entitled the member to use the dining facilities. Soon after its inception the Executive Club was opened to the pubic. The only privilege members received over non-members was a discount on their meals. A non-member could be given a complimentary membership after first visit, thereby entitling him to receive a discount on subsequent visits.
In September, 1989, the City Commission voted to lease space in the
550 Building. The rental rate was $20 per square foot. When the lease expired, the owner of the building proposed a higher rate, which the City did not accept. The City vacated the building and rented space elsewhere.
Barker has been a member of the Country Club since 1986, and was a member when he was elected to the City Commission in 1989. Barker's private employment is in marketing.
Until he was elected to the City Commission, Mr. Barker's employer paid his membership dues. Subsequent to his election, Barker's membership was changed by the Country Club to a complimentary membership.
Under the terms of the complimentary membership, Barker was not allowed to vote in Country Club elections or hold an office in the Country Club, but continued to retain all the other benefits he had been entitled to as a paying Country Club member.
The Country Club dues were paid by Barker's employer until Barker was elected to the City Commission.
Barker understood that the complimentary memberships were a tradition in the City. No one from the Country Club ever asked him for favors.
No vote concerning the Country Club was pending before the City Commission when Barker received his complimentary membership.
The only vote concerning the Country Club in which Barker participated while a Country Club member was a vote to postpone action.
No one from the Country Club ever asked Barker for any favors.
No vote concerning the Executive Club was pending before the City Commission when Barker received his complimentary membership. Barker thought that his membership to the Executive Club was a public relations gesture. He viewed the Executive Club not as a private club but as a restaurant. Barker usually went to the Executive Club as someone else's guest.
Barker never voted on a matter concerning the Executive Club.
The Executive Club and Country Club memberships were given to a variety of private community leaders as well as City officials.
Barker cancelled his complimentary memberships when the State advised him of his position regarding a conflict of interest.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding. Section 120.57(1), Florida Statutes.
Section 112.322, Florida Statutes, and Rule 34-5.0015, Florida Administrative Code, authorize the Florida Commission on Ethics (Commission) to conduct investigations and make public reports on complaints concerning violations of Part III, Chapter 112, Florida Statutes (the Code of Ethics for Public Officers and Employees).
The burden of proof, absent a statutory directive to the contrary, is on the party asserting the affirmative of the issue of the proceeding. Department of Transportation v. J.W.C. Co., Inc., 396 So.2d 778 (Fla. 1st DCA 1981) and Balino v. Department of Health and Rehabilitative Services, 348 So.2d
349 (Fla. 1st DCA 1977). In this proceeding it is the Commission, through the Advocate, that is asserting the affirmative: that Barker violated Section 112.313(4), Florida Statutes. Therefore the burden of establishing by a preponderance of the evidence the elements of Barker's alleged violations is on the Commission.
Section 112.313(4), Florida Statutes, provides:
No public officer or employee of an agency or his spouse or minor child shall, at any time, accept any compensation, payment, or thing of
value when such public officer or employee knows, or, with the exercise of reasonable care, should know, that it was given to influence a vote or other action in which the officer or employee
was expected to participate in his official capacity.
In order to conclude that Barker violated Section 112.313(4), Florida Statutes, the Advocate must have proved the following elements:
The Respondent must have been a public officer or employee of an agency; and
The Respondent (or his minor child) must have accepted compensation, payment, or something of value which was:
Accepted by the Respondent with actual knowledge that the compensation, payment or thing of value was given to influence a vote or other action in which Respondent was expected to participate in his official capacity; or
Accepted by the Respondent when he should have known (with the exercise of due diligence) that the compensation, payment or thing of value was given to influence a vote or other action in which Respondent was expected to participate in his official capacity.
The parties have stipulated that at all times pertinent to this Complaint, Barker was a public officer or employee, and therefore subject to the Code of Ethics for Public Officers and Employers.
Barker received a "thing of value" from the Country Club and from the Executive Club. The annual fee for a membership in the Country Club is $750. The initiation fee for the Executive Club was $700, and the monthly dues were
$50.00.
The Country Club membership was given with the intent to influence official action in which Barker was expected to participate in his capacity as City Commissioner. The evidence clearly shows that issues concerning the Country Club came before the City Commission many times. As a City Commissioner Barker voted on at least one Country Club issue and would be expected to vote on issues concerning the Country Club that came before the City Commission. The Country Club membership was given to Barker because of his position as City Commissioner. The membership was given to Barker as long as he held the position of City Commissioner. When Barker's position as City Commissioner ended so would his free membership to the Country Club.
The Executive Club corporate membership was given to the City as a means of trying to "bury the hatchet." In other words the owner of the Executive Club, who was also the owner of the 550 Building, was attempting to generate favorable feeings on the part of City officials. As City Commissioner, Barker was in a position in which he could help should issues concerning Mr. Sakolsky come before the City Commission.
The evidence shows that Barker should have known that the free membership to the Country Club was given in an effort to influence him in his official actions. Barker's private employment is in marketing and he is aware of the use of contacts to open doors for his company. Therefore he should have been aware of the value of good relationship between the City Commission and the Country Club. The issue of conflict of interest had been raised at City Commission meetings concerning the fact that City Commissioners who were voting on issues concerning the Country Club were also receiving free memberships to the Country Club. There was some question in Barker's mind whether there was a conflict because he sought advice from the City Attorney. Barker should have known that there is "no free lunch." No reasonable person could believe that the free Country Club membership was given to Barker for any reason except to influence him.
The parties have stipulated that the City's corporate membership to the Executive Club was an attempt by Mr. Sakolsky to "bury the hatchet." The membership was not for all city employees but only those designated, which were the City Commissioners, the Mayor, the City Attorney, and the City Manager. In other words, the memberships were for persons who would be in a position to help Mr. Sakolsky. No reasonable person could believe that the free Executive Club membership was given to Barker for any reason except to influence him.
Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Commission on Ethics enter a final order and public
report finding that James Barker violated Section 112.313(4), Florida Statutes, by accepting a free membership to the Coral Gables Country Club and by accepting a free membership to the Executive Club. I therefore recommend a civil penalty of $750 and restitution of $750 for the violation involving the Coral Gables Country Club and a civil penalty of $1,000 and restitution of $600 for the violation involving the Executive Club for a total penalty $3,100. The civil penalty for the violation involving the Country Club is mitigated due to the advice given to Barker by the City Attorney that there was no conflict of interest. The restitution in both cases is the amount a member of the general public would have had to pay for one year's dues.
DONE AND ENTERED this 23rd day of May, 1994, in Tallahassee, Leon County, Florida.
SUSAN B. KIRKLAND
Hearing Officer
Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, Florida 32399-1550
(904) 488-9675
Filed with the Clerk of the Division of Administrative Hearings this 23rd day of May, 1994.
APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-3911EC
To comply with the requirements of Section 120.59(2), Florida Statutes (1993), the following rulings are made on the parties' proposed findings of fact:
Advocate's Proposed Findings of Fact
Paragraphs 1-18: Accepted.
Paragraph 19: The first sentence is rejected as unnecessary. The remainder of the paragraph is accepted in substance.
Paragraph 20: The first sentence is accepted. The second sentence is accepted in substance.
Paragraph 21: Accepted.
Paragraph 22: The first sentence is accepted. The second sentence is accepted in substance.
Paragraphs 23-26: Accepted.
Paragraph 27: Accepted in substance.
Paragraph 28: Accepted.
Paragraph 29: The first sentence is accepted. The second sentence is Rejected as unnecessary.
Paragraphs 30-34: Accepted.
Paragraph 35: The first sentence is Rejected as constituting a Conclusion of Law. The remainder of the paragraph is accepted in substance.
There is no paragraph 36.
Paragraphs 37-38: Rejected as constituting argument.
Paragraph 39: Accepted.
Second Paragraphs 38-39: Accepted.
Paragraph 40: Accepted.
Paragraph 41: The first and second sentences are accepted in substance. The third sentence is accepted in substance to the extent that
the City officials who were receiving complimentary memberships through the City's corporate membership could use the health facilities for a fee of $30 per month but Rejected to the extent that it implies that the City officials could use the health facilities at no cost.
Paragraphs 42-43: Accepted.
Paragraph 44: The first sentence is Rejected as constituting a conclusion of law. The second sentence is Accepted. The third sentence is Rejected as constituting argument.
Paragraphs 45-46: Rejected as constituting argument.
Respondent's Proposed Findings of Fact
Paragraphs 1-4: Accepted.
Paragraph 5: Rejected as subordinate to the facts actually found.
Paragraph 6: Rejected as unnecessary.
Paragraph 7: Accepted.
Paragraph 8: The last sentence is rejected as unnecessary. The remainder of the paragraph is accepted.
Paragraphs 9-12: Accepted.
Paragraph 13: The last sentence is Rejected as constituting a conclusion of law. The remainder of the paragraph is Accepted as substance.
Paragraphs 14-15: Accepted in Substance.
Paragraph 16: Accepted.
10 Paragraph 17: Accepted in Substance.
Paragraph 18: Accepted.
Paragraphs 19-23: Accepted in Substance.
Paragraph 24-25: Accepted.
Paragraph 26-34: Accepted in Substance.
Paragraph 35: The first sentence is Accepted in Substance. The second sentence is Rejected as unnecessary.
Paragraph 36: Accepted.
Paragraph 37: Accepted in Substance.
COPIES FURNISHED:
Raoul G. Cantero, Esquire Suite 1600
2601 South Bayshore Drive Miami, Florida 33133
Virlindia Doss, Esquire Department of Legal Affairs The Capitol, PL-01
Tallahassee, Florida 32399-1050
Bonnie Williams Executive Director
Florida Commission On Ethics Post Office Drawer 15709 Tallahassee, Florida 32317-5709
Phil Claypool, Esquire General Counsel
Ethics Commission
2822 Remington Green Circle, Suite 101 Post Office Drawer 15709
Tallahasee, Florida 32317-5709
NOTICE OF RIGHT TO SUBMIT EXCEPTIONS
All parties have the right to submit written exceptions to this recommended order. All agencies allow each party at least ten days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this recommended order. Any exceptions to this recommended order should be filed with the agency that will issue the final order in this case.
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AGENCY FINAL ORDER
=================================================================
BEFORE THE STATE OF FLORIDA
COMMISSION OF ETHICS
In re: JAMES BARKER, )
) DOAH Case No. 93-3911EC
Respondent. ) Complaint No. 91-144
) Final Order No. COE 94-30
)
FINAL ORDER AND PUBLIC REPORT
This matter came before the Commission on Ethics on the Recommended Order rendered in this matter on May 23, 1994 by the Division of Administrative Hearings (DOAH) [a copy of which is attached and incorporated by reference]. The Hearing Officer recommends that the Commission enter a final order and public report finding that the Respondent violated Section 112.313(4), Florida
Statutes, by accepting a free membership to the Coral Gables Country Club and by accepting a free membership to the Executive Club. The Hearing Officer recommends further that a total penalty of $3,100 be entered against the Respondent.
The Respondent filed exceptions to the Recommended Order and the Advocate filed a response to the Respondent's exceptions. The Respondent takes exception to various portions of the Recommended Order. Each of the exceptions will be dealt with individually below.
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. Dept. of Business Regulation, 556 So.2d 1204 (Fla. 5th DCA 1990); and Florida Department 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.
Having reviewed the Recommended Order, the Respondent's exceptions, the Advocate's response to the Respondent's exceptions; and the record of the public hearing of this matter that has been placed before the Commission, and having
considered the arguments of the Respondent and the Advocate made before the Commission at its final consideration of this matter, the Commission makes the following findings, conclusions, rulings, and recommendations:
Rulings on Respondent's Exceptions
The Respondent takes exception to the Hearing Officer's treatment of his proposed finding of fact 5, apparently arguing that such a finding should have been made on the basis of unrebutted testimony and that such a finding would have shown that the Respondent received nothing of value by virtue of his complimentary Country Club membership because he already received the privileges of membership from the City itself because he was a City official entitled, under the City's lease agreement regarding the Country Club, to enter the Club and dine at its restaurant. The Respondent's proposed finding 5 reads: "The lease provided for City officials to inspect the Country Club premises. In the opinion of at least one Country Club director, this right allowed City officials, including commissioners, to enter the Country Club and, if they desired, buy a meal at the restaurant." In the appendix to the Recommended Order, the Hearing Officer rejected this proposed finding as "subordinate to the facts actually found."
Under Section 120.57(1)(b)10, Florida Statutes, it is within the province of the Hearing Officer to reject or accept the testimony underlying a proposed finding of fact. Further, the Hearing Officer was free to weigh various and conflicting evidence presented in the matter and was free to draw from that evidence her factual view of the controversy, and the Hearing Officer's factual findings cannot be disturbed by our review unless they are not based upon competent, substantial evidence. The Hearing Officer cannot be faulted for believing that the membership bestowed value' upon the members and for rejecting the proposed finding (and in effect the testimony upon which the proposed finding was based) that the City's lease rights rendered the membership valueless to the Respondent. There is competent, substantial record evidence to support the Hearing Officer's determination that the membership privileges bestowed upon the Respondent by a private entity were a thing of value to the Respondent.
Therefore, this exception is rejected.
The Respondent takes exception to the Hearing Officer's treatment of his proposed finding of fact 6, arguing that the proposed finding shows that the Respondent received nothing from the complimentary membership that the City, did not already receive under the lease as the Country Club's landlord. The Hearing Officer rejected this proposed finding as "unnecessary." This proposed finding reads: "The lease also required' that the Country Club allow the City access to the Country Club, and allow the City to use the Country Club upon reasonable notice."
Even had this proposed finding been accepted, it would not conclusively establish that City use of Club property, premises, or facilities amounted to the Respondent's right to use the same, free of charge, in the manner in which he was entitled to use then as a complimentary member of the Club.
Therefore, for this reason and for the reasons set forth above in response to the previous exception, this exception is rejected.
The Respondent takes exception to what he refers to as the Hearing Officer's failure to include certain of his proposed findings in the Recommended Order. Other than the last sentence of finding 13, the Recommended Order accepted these proposed findings in substance. The last sentence of proposed finding 13 was rejected as constituting a conclusion of law [rather than a finding of fact].
Much, if not all, of the substance of these proposed findings is included in the body of the Recommended Order, although the phraseology may not be exactly the same as that proposed by the Respondent. Respondent's proposed finding 13 is included in paragraphs 27 and 28 of the Recommended Order; proposed finding 14 is included in paragraph 20 of the Recommended Order; proposed finding 17 is included in paragraphs 42 and 46 of the Recommended Order; proposed finding 19 is included in paragraph 41 of the Recommended Order; proposed finding 21 is included in paragraph 26 of the Recommended Order; proposed finding 26 is included in paragraph 31 of the Recommended Order; proposed finding 27 is included in paragraph 31 of the Recommended Order; proposed finding 31 is included in paragraph 45 of the Recommended Order; proposed finding 32 is included in paragraphs 41 and 45 of the Recommended Order; and the first sentence of proposed finding 35 is included in paragraph 45 of the Recommended Order.
Assuming that the last sentence of proposed finding 13 is a proposed finding of fact rather than a proposed conclusion of law, its rejection is within the province of the Hearing Officer; there is competent, substantial evidence of record to support the Hearing Officer's determination that the Country Club membership was given in order to influence official action.
Therefore, these exceptions are rejected.
The Respondent takes exception to the Hearing officer's use of the preponderance of the evidence standard in this matter rather than the clear and convincing evidence standard.
This exception is rejected. The Commission on Ethics has held that the preponderance of the evidence standard applies. Moreover, this matter does not involve revocation of a professional license (the loss of someone's livelihood) and therefore is not the type of administrative case in which the more stringent standard has been applied. See, e.g., In re MICHAEL E. LANGTON, 14 F.AL.R. 4175 (Fla. Comm. on Ethics 1992).
The Respondent takes exception to paragraph 55 of the Recommended Order, arguing that the Hearing Officer erroneously concluded that the Respondent received a "thing of value" from the Country Club and from the Executive Club because at the time the Respondent received the Country Club membership his private employer was paying his membership to the Country Club and the Executive Club membership had no value because the Executive Club was open to the public with members receiving nothing more than non-members.
This exception is rejected. The Country Club membership entitled the Respondent, not his private employer, to certain privileges, and no determination was made by the Hearing Officer that the private employer would have paid the membership for the Respondent for the years he held it by virtue of his official status. As to the Executive Club, the Hearing Officer found, and the record supports, that its membership had value.
The Respondent takes exception to paragraph 56 of the Recommended Order, arguing that the Hearing Officer should not have concluded that the Country Club membership was given to influence the Respondent's official actions because "[t]he undisputed evidence showed that it has been a tradition since the founding of the Country Club to offer complimentary memberships to community leaders." In support of this argument, the Respondent cites In re JAMES RESNICK, 14 F.A.L.R. 1002 (Fla. Comm. on Ethics 1991). In addition, the Respondent argues that this determination is in error because "[w]hile [the leaders receiving free memberships) included City officials, several persons not City officials also received complimentary memberships," and "because of the landlord/tenant relationship between the City and the Country Club, a unity of interests existed between them such that complimentary Memberships in the Country Club were not intended to influence official action."
Resnick is factually distinguishable from the instant batter. Moreover, a gratuitous practice having a history is not a defense to a charge involving Section 112.313(4), Florida Statutes. See In re WINSTON W. "BUD', GARDNER, 15
F.A.L.R. 2595, 2612 (Fla. Comm. on Ethics 1993). Further, the fact that the Club may have also been seeking to influence other community leaders who were not public officials does not mean that public official community leaders, including the Respondent, were not sought to be influenced. In addition, since it is obvious that the interests of a landlord and its tenant are not always the same, a tenant may very well seek to influence those with the power to make or influence decisions on behalf of the landlord, and the record in this matter shows that there were instances involving the City and the Country Club in which action or conduct by the City would have been of consequence to the Club.
Therefore, this exception is rejected.
The Respondent takes exception to paragraph 57 of the Recommended Order, arguing that the Hearing Officer erroneously concluded that the Respondent was given the Executive Club membership to influence his official actions because, as the Respondent argues, a public relations firm hired by the Club to promote the Club recommended that the Club issue complimentary memberships to VIPs in the City and that therefore "[n]o one at the Executive Club had anything to do with whom would be offered such memberships," and because "[n]inety percent of the free memberships were given to private individuals and groups."
Regardless of whether the public relations firm recommended the issuance of the free memberships, the Executive Club was the entity that issued then.
Further, just because a person or business utilizes professionals or firms to facilitate its courses of action does not mean that the person or business is not in fact pursuing a particular course. Regarding the assertion that ninety percent of the free memberships were given to private recipients, see our response to the preceding exception.
Therefore, this exception is rejected.
The Respondent takes exception to paragraph 58 of the Recommended Order, arguing that the Hearing Officer erred in concluding that the Respondent should have known that the Country Club membership was given to influence his official action because since such memberships were traditional the Respondent merely assumed he was receiving a traditional honorary membership. In support of this argument the Respondent cites CEO 75-180 and CEO 89-40.
As stated in our rejection of an exception above, the fact that a gratuitous practice has a history or is traditional" is not a defense to a charge under Section 112.313(4), Florida Statutes. See Gardner, supra. CEO 75-
180 is distinguishable from the instant matter because in that opinion there was no relationship between the country club providing the membership and the State University System, of which the recipient was a public official. The lack of a relationship or of potentially competing interests is not present in the instant matter. In CEO 89-40, the social club offering the free or reduced fee membership and the club member nominating the public official (a county property appraiser) for membership were merely property owners within the county, as were many, many other persons and entities, and there was not a landlord/tenant relationship as in the instant matter wherein issues involving potentially competing interests were actually addressed and subject to influence. Further, the Respondent's harboring of a subjective question in his mind as to whether his acceptance of the Country Club membership was an ethical conflict is not determinative of the objective constructive knowledge element of an offense under Section 112.313(4).
The Respondent takes exception to paragraph 59 of the Recommended Order, arguing that the Hearing Officer erroneously concluded that the Respondent should have known that the Executive Club membership was given to influence his official action, because "[t]he undisputed evidence, which the hearing officer accepted as a finding of fact, showed that Respondent questioned the City Attorney about the free memberships in the Executive Club, and the City Attorney confirmed that it really was not a private club and the free memberships were given as a public relations gesture," and therefore the Respondent's understanding that the Executive Club was basically a restaurant was reasonable.
This exception is rejected. The Respondent's subjective thoughts and beliefs are not controlling here; the statute also addresses the constructive knowledge that the Respondent should have been aware of under the circumstances of this case--circumstances indicating that the membership was given to influence official action. The City Attorney's assessment is only one circumstance or factor bearing on whether the Respondent should have known that the Executive Club membership was given to influence him regarding his official duties, and the City Attorney's assessment was less than detached legal advice in that the Attorney himself was receiving the same Executive Club membership. The objective facts showing the relationship between the City and the Executive Club and the Respondent's role and responsibility regarding City/Club affairs on behalf of the City are sufficient to prove the constructive knowledge element of this charge.
The Respondent takes exception to the Hearing Officer's recommendation that the Commission find that the Respondent violated Section 112.313(4) in regard to the Coral Gables Country Club and in regard to the Executive Club. Further, the Respondent argues that if a penalty is recommended by the Commission it should reduced from that recommended by the Hearing Officer due to several mitigating factors.
The exceptions to the penalty recommendations of the Hearing Officer are accepted as specified below.
FINDINGS OF FACT
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.
The Commission finds that the Respondent, James Barker, violated Section 112.313(4), Florida Statutes, by accepting a free membership to the Coral Gables Country Club and by accepting a free membership to the Executive Club.
RECOMMENDED PENALTY
Therefore, the Commission on Ethics hereby recommends that restitution of
$750.00 (seven hundred fifty dollars) be imposed upon the Respondent for the violation of Section 112.313(4), Florida Statutes, involving the Coral Gables Country Club and that restitution of $700.00 (seven hundred dollars) be imposed upon the Respondent for the violation of Section 112.313(4), Florida Statutes, involving the Executive Club, for a total of $1,450.00 (one thousand four hundred fifty dollars). The civil penalties recommended by the Hearing Officer are mitigated because the Respondent received the complimentary Country Club membership only for a relatively short period of time, because the Respondent sought and relied on the advice of the City Attorney regarding the nature of his complimentary membership in the Country Club, and because the value of the Executive Club membership may have become minimal. The restitution involving the Executive Club is changed from $600 to $700 ($700 being the amount of the Executive Club's initiation costs, see paragraph 30 of the Recommended Order).
ORDERED by the State of Florida Commission on Ethics meeting in public session on Thursday, July 14, 1994.
Date Rendered
N. David Flagg Acting Chairman
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, TALLAHASSEE, FLORIDA 32308; OR
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. Raoul G. Cantero, III, Attorney for Respondent Ms. Virlindia Doss, Commission Advocate
Mr. Joseph M. Centorino, Complainant Division of Administrative Hearings
| Issue Date | Proceedings |
|---|---|
| Jul. 21, 1994 | Final Order and Public Report filed. |
| May 23, 1994 | Recommended Order sent out. CASE CLOSED. Hearing held 03/09/94. |
| Apr. 18, 1994 | Notice of Filing; The Advocates Proposed Recommended Order filed. |
| Apr. 15, 1994 | Respondent`s Notice of Filing Proposed Findings of Fact and Conclusions of Law; Hearing Officer`s Findings of Fact, Conclusions of Law, and Recommended Order filed. |
| Apr. 07, 1994 | Transcript filed. |
| Mar. 09, 1994 | CASE STATUS: Hearing Held. |
| Mar. 04, 1994 | Prehearing Stipulations; & Cover Letter to SBK from R. Cantero filed. |
| Nov. 12, 1993 | Order Granting Continuance and Rescheduling Hearing sent out. (hearing rescheduled for 3/9/94; 3:30pm) |
| Nov. 12, 1993 | Notice of Hearing Officer filed. (From Virlindia Doss) |
| Nov. 10, 1993 | Motion to Continue filed. (From Virlindia Doss) |
| Aug. 03, 1993 | Notice of Hearing sent out. (hearing set for 11/17/93; 11:00am; Miami) |
| Jul. 29, 1993 | Joint Response to Initial Order filed. |
| Jul. 19, 1993 | Initial Order issued. |
| Jul. 14, 1993 | Agency referral letter; Complaint; Determination of Investigative Jurisdiction and Order to Investigate; Report of Investigation; Advocate`s Recommendation; Order Finding Probable Cause filed. |
| Issue Date | Document | Summary |
|---|---|---|
| Jul. 20, 1994 | Agency Final Order | |
| May 23, 1994 | Recommended Order | Free membership in country club and executive violated Section 112.313(4), Florida Statutes. |
