STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
IN RE: DAVID WHITEHEAD, )
)
Respondent. ) Case No: 00-0266EC
)
RECOMMENDED ORDER
Pursuant to notice, the Division of Administrative Hearings, by its duly-designated Administrative Law Judge, Carolyn S. Holifield, held a formal hearing in this case on April 28, 2000, by videoconference at sites in Pensacola and Tallahassee, Florida.
APPEARANCES
Advocate: James H. Peterson, III, Esquire
Office of the Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050
For Respondent: Mark Herron, Esquire
Akerman, Senterfitt & Edison, P.A.
301 South Bronough Street, Suite 200 Tallahassee, Florida 32801
STATEMENT OF THE ISSUES
The issues for determination are: (1) Whether Respondent, David M. Whitehead, a member of Escambia County Commission, violated Section 112.313(7)(a), Florida Statutes, by having or holding an employment or contractual relationship with B & W Productions of Pensacola, Inc. (B & W Productions) which created a continuing or frequently recurring conflict between his private interests and the performance of his public duties or which
impeded the full and faithful discharge of his public duties;
whether Respondent violated Section 112.3143(3)(a), Florida Statutes, by voting on measures that came before the Escambia County Commission regarding Carlan Killam Consulting Group, Inc. (Carlan Killam Consulting or Carlan Killam), Baskerville-Donovan, Inc. (Baskerville-Donovan), DelGallo-Morette Construction Company (DelGallo-Morette), and/or Champion International Corporation (Champion), all of whom were sponsors of a television show hosted by Respondent; and (3) if so, what penalty is appropriate.
PRELIMINARY STATEMENT
On December 2, 1999, the Florida Commission on Ethics (Ethics Commission) issued an Order Finding Probable Cause to believe that Respondent, David M. Whitehead, as a member of the Escambia County Commission, violated Section 112.313(7)(a), Florida Statutes, by having an employment or contractual relationship with B & W Productions which created a continuing or frequently recurring conflict between his private interests and the performance of his public duties or which impeded the full and faithful discharge of his public duties. Additionally, the Ethics Commission found that there was probable cause to believe that Respondent violated Section 112.3143(3)(a), Florida Statutes, by voting on measures that came before the Escambia County Commission regarding Carlan Killam Consulting,
Baskerville-Donovan, DelGallo-Morette, and/or Champion.
On or about January 13, 2000, the case was forwarded to the Division of Administrative Hearings for assignment to an Administrative Law Judge to conduct a public hearing and to prepare a recommended order.
Prior to the public hearing, the parties submitted a Joint Pre-hearing Stipulation containing a number of stipulations of fact and law. The facts to which the parties stipulated required no proof at hearing.
At the public hearing, the Advocate called six witnesses: Respondent; Charles Carlan; Steve DelGallo; JoAnn McKeithan; Stuart Bainter; and Elizabeth Watkins. The Advocate offered eleven exhibits, ten of which were received into evidence.
Advocate's Exhibit AE-2 was proferred. Respondent testified on his own behalf and offered two exhibits, both of which were received into evidence. The parties jointly offered into evidence the deposition of Lois Benson taken April 11, 2000, which was received into evidence.
A Transcript of the proceeding was filed with the Division of Administrative Hearings on May 24, 2000. The Advocate and Respondent timely filed Proposed Recommended Orders, which have been considered in preparation of this Recommended Order.
FINDINGS OF FACT
Respondent, David M. Whitehead (Respondent), currently serves as county commissioner for Escambia County, Florida, and
has continuously served in that capacity since taking office after his election in 1992.
As a county commissioner for Escambia County, Respondent is subject to the requirements of Part III, Chapter 112, Florida Statutes, the Code of Ethics for Public Officers and Employees (Code of Ethics), and is a "public officer" as that term is defined in Sections 112.313(1) and 112.3143(1)(a), Florida Statutes.
As a county commissioner for Escambia County, Respondent is subject to the provisions of Sections 112.313(7)(a) and 112.3143(3)(a), Florida Statutes.
Respondent formed B & W Productions, a Subchapter S, for-profit corporation, for the purpose of producing a morning television show that was to be known as the "Lois and Mike Show" or the "Wake-Up with Lois and Mike Show" (the "Lois and Mike Show"). Respondent is "Mike" on the Lois and Mike Show and co- hosts the show with Lois Benson.
B & W Productions was incorporated to shield the personal assets of Respondent and Benson in case of liability. B & W Productions was organized under the laws of the State of Florida, effective June 17, 1998. B & W Productions was active
from June 17, 1998, through September 23, 1999. On September 24, 1999, B & W Productions was administratively dissolved for failure to file its annual report, as required by law.
During its corporate existence, B & W Productions maintained a corporate bank account at SunTrust Bank, West Florida; produced periodic profit and loss statements of its activities; applied for a federal tax identification number as a Subchapter S corporation; filed a corporate tax return with the Internal Revenue Service; and entered into sponsorship agreements with specific sponsors of the Lois and Mike Show. However, during its corporate existence, the corporation failed to conduct meetings of its shareholders, to take minutes, and to file its annual report.
Respondent served as chief executive officer of B & W Productions until approximately March of 1999. In March 1999, after Respondent stepped down as CEO, Benson took over the books and management of B & W Productions. Thereafter, Respondent was not involved in the active management of B & W Productions.
In November of 1999, Respondent transferred to Benson "all ownership rights, rights to compensation in any form, and right to any benefits, accrued or accruing in the future, with regard to B & W Productions, Inc., and "Wake Up with Lois and Mike . . . ." Respondent transferred complete ownership of B & W Productions to Benson, free and clear of any obligation for repayment.
The Lois and Mike Show began airing on a local cable station in Pensacola known as "BLAB TV" in September of 1998.
Respondent and Benson have received no compensation for their efforts in connection with the Lois and Mike Show.
Since the Lois and Mike Show first aired, over 200 guests, all local people, have appeared on the show. Daily rundowns of the show for the calendar year 1999 evidence a program highlighting local community events and personal information presented by local residents consistent with a weekly theme developed by Benson.
As a political figure, Respondent receives an incidental benefit of appearing as local personality on the Lois and Mike Show. However, the show is not a political show. Rather, consistent with its mission, the show entertains and informs its audience on issues specific to the Pensacola area, highlighting local news and issues, local events, and local people.
BLAB TV requires the payment of $1,250.00 for each week that the Lois and Mike Show is aired. Other costs incurred in the production of the show included contract labor and outside production companies used to produce a portion of the show. The primary source of income to pay for the Lois and Mike Show is money paid by sponsors or supporters of the Lois and Mike Show.
Using a public broadcasting system model, Benson developed a market plan to secure sponsors for the Lois and Mike Show. The plan proposed different tiers of sponsorship: segment sponsors; traditional commercial sponsors; and friends and
benefactors. Benson developed lists of potential sponsors which included a wide range of businesses in the Pensacola area. These businesses included but were not limited to Baskerville-Donovan, DelGallo-Morette and Champion. Various potential sponsors including Baskerville-Donovan, DelGallo-Morette and Champion, were targeted for a personal solicitation from either Benson and/or Respondent.
Initially, B & W Productions was responsible for billing and collecting sponsorship fees. However, in December 1998, three months after the show was first aired, responsibility for billing and collection of sponsorship fees was assumed by BLAB TV. Since BLAB TV took over these responsibilities, all sponsors of the Lois and Mike Show are billed directly by BLAB TV.
Both Respondent and Benson personally paid a portion of the costs for the airing and production of the Lois and Mike Show. Respondent paid approximately $16,000.00 of his personal funds for the production of the Lois and Mike Show. Benson expended approximately $30,000 of her personal funds for the production of the show. These payments have at various times been characterized as loans and capital contributions. In March of 1999, Respondent determined that he could not put anymore of his personal funds into B & W Productions and did not do so.
Both before and after the airing of the first Lois and Mike Show, Respondent solicited funds from sponsors to help pay
the amount charged by BLAB TV for airing the show. Sponsorships were solicited from over 200 individuals and entities in the Pensacola community by Respondent and Benson.
Respondent solicited funds in 1998 for the sponsorship of the Lois and Mike Show from a number of sources, including Baskerville-Donovan, Carlan Killam Consulting, Champion, and DelGallo-Morette, all of whom gave money for the sponsorship of the Lois and Mike Show. There was never any discussion at the time the solicitations were made that any of these potential sponsors might have matters before the Escambia County Commission (County Commission or Commission).
Respondent has not solicited sponsors for the show since March of 1999.
Baskerville-Donovan, Carlan Killam Consulting, Champion, and DelGallo-Morette have all had matters come before the Escambia County Commission after giving money for the Lois and Mike Show.
Respondent, as a county commissioner for Escambia County, has voted on matters that have come before the County Commission regarding Baskerville-Donovan, Carlan Killam Consulting, Champion, and DelGallo-Morette after those companies gave money to support the airing and/or production of the Lois and Mike Show.
However, Respondent has never been employed by and has never owned property with or engaged in a business enterprise
with Baskerville-Donovan, Carlan Killam Consulting, Champion, or DelGallo-Morette.
Since July of 1998, Respondent has cast approximately 3,000 votes as a member of the County Commission. He has never abstained from a vote as a county commissioner or filed a conflict of interest disclosure form based upon payments that have been made by any entity to B & W Productions or for the Lois and Mike Show.
Baskerville-Donovan provides architectural and engineering services to Escambia County. These services are provided pursuant to an on-going contract with the county.
Respondent solicited a sponsorship from Baskerville- Donovan. Subsequently, Baskerville-Donovan became a regular sponsor of the Lois and Mike Show paying $200 a month, beginning September or October 1998, and continuing through April 2000.
The following matters that came before the Escambia County Commission for a vote regarding Baskerville-Donovan just before and after it became a sponsor of the Lois and Mike Show:
On June 23, 1998, the Commission approved issuance of a Task Order to Baskerville-Donovan on Contract PD 95-
96.74 in the amount of $394,568 to design several road projects to the 35 percent stage. This item was unanimously approved by the Commission upon motion made by Respondent. This vote occurred prior to any sponsorship funds being paid to B & W Productions by Baskerville- Donovan.
On September 22, 1998, the Commissioner approved the extension of six contracts
with various consultants, including Contract PD 95-96.74 to Baskerville- Donovan for the second consecutive one- year option period, October 1, 1998, through September 30, 1999, at the same price, terms, and conditions. The extensions applied to contracts that had been awarded on August 6, 1996. This item was unanimously approved as part of the Commission's Consent Agenda. This vote occurred after sponsorship funds were paid by Baskerville-Donovan to B & W Productions.
On December 22, 1998, the Commission approved Addendum Number 7 to Contract 95-96.63 to Baskerville-Donovan in the amount of $316,775.60 to provide full- time inspection and contract
administration for the University Parkway Widening and Realignment Projects. This item was unanimously approved by the Commission with Respondent seconding the motion for approval made by Commissioner Boss. This vote occurred after sponsorship funds were paid to B & W Productions by Baskerville-Donovan and after responsibility for collecting and accounting for sponsorship funds for the Lois and Mike Show was transferred to BLAB TV.
On January 21, 1999, the Commission approved issuance of a Task Order on Contract PD 95-96.74 to Baskerville- Donovan, in the amount of $490,729.00 to design various paving and drainage projects to the 30 percent stage. This item was unanimously approved as part of the Commission's Consent Agenda. This vote occurred after sponsorship funds were paid to B & W Productions and after responsibility for collecting and accounting for sponsorship funds for the Lois and Mike Show was transferred to BLAB TV.
On January 21, 1999, the Commission approved extension of five current contracts with various consultants,
including Contract PD 95-96.100 to Baskerville-Donovan, for the third consecutive one-year option period, March 14, 1999, through March 13, 2000,
at the same prices, terms and conditions. The extensions applied to contracts that had been awarded March 14, 1998. The item was unanimously approved as part of the Commission's Consent Agenda. This vote occurred after sponsorship funds were paid to B & W Productions and after responsibility for collecting and accounting for sponsorship funds for the Lois and Mike Show was transferred to BLAB TV.
On February 4, 1999, the Commission approved Amendment Number 4 to Contract PD 94-95.59 between Escambia County and Baskerville-Donovan, in the amount of
$51,200, for architectural and engineering services for various projects. (The original contract was approved on April 25, 1995.) This item was unanimously approved as part of the Commission's Consent Agenda, with Respondent moving approval of the Consent Agenda. This vote occurred after sponsorship funds were paid to B & W Productions and after responsibility for collecting and accounting for sponsorship funds for the Lois and Mike Show was transferred to BLAB TV.
On April 22, 1999, the Commission approved the expenditure of approximately
$3,000 to Baskerville-Donovan to complete the design package for renovations to the Board Chambers located in the Old Courthouse. This item was approved by a vote of 4-0, with Commissioner Robertson absent. This vote occurred after sponsorship funds were paid to B & W Productions and after responsibility for collecting and accounting for sponsorship funds for the Lois and Mike Show was transferred to BLAB TV.
On May 20, 1999 the Commission approved three items extending Contract PD 95-
96.83 to allow three consultants, including Baskerville-Donovan, to proceed with various tasks with respect to the extension of I-110. In the first vote, the Commission unanimously approved extension of the contract to allow consultants to proceed with the preparation of applications associated with the request for funds for the I-110 extension project. In the second vote, the Commission unanimously approved extension of the contract to allow the consultants to proceed with design and preparation of other documents required in connection with extension of I-110 to Nine Mile Road. In the third vote, the Commission approved, by a vote of 3-2, extension of the contract to allow consultants to proceed with design and preparation of related documents for further extension of I-110 using as much of the Gulf Power right-of-way as possible. With respect to each vote, Respondent seconded the motion for approval and voted in the affirmative on each item. These votes occurred after sponsorship funds were paid to B & W Productions and after responsibility for collecting and accounting for sponsorship funds for the Lois and Mike Show was transferred to BLAB TV.
On October 7,1999, the Commission approved Contract PD 98-99.83 to Baskerville-Donovan, in the amount of
$100,000 for a feasibility study for the Central Commerce Park. This item was approved unanimously by the Commission upon motion seconded by Respondent. This vote occurred after sponsorship funds were paid to B & W Productions and after responsibility for collecting and accounting for sponsorship funds for the Lois and Mike Show was transferred to BLAB TV.
With respect to each of the matters which were the subject of votes referenced in paragraph 25, neither Respondent
nor B & W Productions provided any services to Baskerville- Donovan. Nor did Respondent or B & W Productions have any responsibility for evaluating or inspecting Baskerville-Donovan's performance under any of these contracts. Moreover, neither Respondent nor B & W Productions provided any services with respect to any of the projects which were the subject of the Commission votes. Finally, neither the Respondent nor B & W Productions benefited from the votes of the County Commission approving various items involving Baskerville-Donovan.
Respondent has never been employed or retained by Baskerville-Donovan. Respondent has never been engaged in a business enterprise with Baskerville-Donovan as a partner, a joint venturer, a co-owner of property, or in a corporate entity whose shares are not listed on a national or regional stock exchange.
Carlan Killam Consulting provides architectural services to Escambia County, and has done so since 1973. These services have been provided to the county through on-going contracts.
Carlan Killam Consulting provided one payment of
$1,500.00 to sponsor the Lois and Mike Show. That payment was made on or about July 29, 1998.
Benson initially approached Charles Carlan, the president of Carlan Killam Consulting, about sponsoring the Lois and Mike Show. Subsequently, Carlan met with Respondent and
decided to have his company sponsor the show because it showed the positive side of Pensacola, as opposed to the negative side shown in the regular media. Carlan Killam Consulting engaged in a similar sponsorship endeavor with respect to the Pensacola Independent Newspaper.
The following matters came before the Escambia County Commission for a vote regarding Carlan Killam Consulting just before and after it became a sponsor of the Lois and Mike Show:
On June 23, 1998, the Commission, upon motion by Respondent, unanimously approved the issuance of a Task Order on Contract PD 95-96.74 to Carlan Killam in the amount of $254,920 to design several road projects to 30 percent stage. This vote occurred before sponsorship funds were paid by Carlan Killam.
On July 28, 1998, the Commission unanimously approved, as part of its Consent Agenda, a Task Order on Contract PD 95-96.74 to Carlan Killam in the amount of $379,618 for various road paving and draining design projects.
This vote occurred before any sponsorship funds were paid by Carlan Killam.
On September 22, 1998, the Commission approved extensions of six current contracts with various consultants, including Carlan Killam (Contract PD 95.96.74), for the second consecutive one-year option period, October 1, 1998, through September 30, 1999, at the same prices, terms and conditions. (The extensions applied to contracts that had been awarded August 6, 1996.) This item was unanimously approved as part of the Commission's Consent Agenda. The vote occurred after the one-time sponsorship payment was made to B & W Productions by Carlan Killam.
On November 24, 1998, the Commission considered and unanimously approved the Proposal Review Committee's ranking of firms based on their letters of interest regarding providing professional architectural consulting services to prepare a 10-year master space plan. Carlan Killam ranked second. This vote occurred after Carlan Killam made a one- time sponsorship payment to B & W Productions.
On December 3, 1998, the Commission approved issuance of a Task Order on Contract PD-96.74.3P to Carlan Killam in the amount of $134,748 for services on various waste water projects. This vote occurred after the one-time sponsorship payment was made by Carlan Killam to B & W Productions.
On December 22, 1998, the Commission approved issuance of a Task Order on Contract 95-96.74 in the amount of
$104,927 for design, engineering, and surveying services for storm-water and drainage projects. This item was unanimously approved as part of the Commission's Consent Agenda. This vote occurred after the one-time sponsorship payment was made by Carlan Killam to B & W Productions.
On March 18, 1999, the Commission approved issuance of three task orders on Contract PD 95-96.74 to Carlan Killam in amounts of $136,476; $504,771; and
$69,087. These items were unanimously approved as part of the Commission's Consent Agenda. Respondent was not present for this meeting.
On April 22, 1999, the Commission approved issuance of a Task Order on Contract PD 95-96.74 to Carlan Killam in the amount of $110,666 for the design and engineering for various road projects. This item was unanimously approved as part of the Commission's Consent Agenda for this date. This vote occurred after
the one-time sponsorship payment was made by Carlan Killam to B & W Production.
On May 20, 1999, the Commission approved three items extending Contract PD
95-96.83 to direct named consultants, including Carlan Killam, to proceed with various tasks with respect to the extension of I-110. In the first vote, the Commission unanimously approved extension of the contract to allow consultants to proceed with the preparation of applications associated with the request for funds for the I-110 extension project. In the second vote, the Commission unanimously approved extension of the contract to allow the consultants to proceed with design and preparation of other documents required in connection with extension of I-110 to Nine Mile Road. In the third vote, the Commission approved, by a vote of 3-2, extension of the contract to allow consultants to proceed with design and preparation of documents for further extension of I-110 using as much of the Gulf Power right-of-way as possible.
With respect to each item, Respondent
seconded the motion for approval and voted in the affirmative. These votes occurred after the one-time sponsorship payment was made by Carlan Killam to B & W Productions.
On October 21, 1999, the Commission approved issuance of Task Order on Contract PD 95-96.83 to Carlan Killam in an amount not to exceed $263,727.28, to provide the first phase of project development to study the I-110 extension to Nine Mile Road. This item was approved by the Commission, by a vote of 4-1, with Respondent voting in the affirmative. This vote occurred after the one-time sponsorship payment was made to B & W Productions.
With respect to each of the matters which were the subject of votes referenced in paragraph 31, neither Respondent
nor B & W Productions provided any services to Carlan Killam. Moreover, neither Respondent nor B & W Productions had any responsibility for evaluating or inspecting Carlan Killam's performance under the aforementioned contracts or for providing any services with respect to any of the projects which were the subjects of these votes. Finally, neither Respondent or B & W Productions benefited in any manner from the votes of the County Commission approving various items involving Carlan Killam.
Respondent has never been employed or retained by Carlan Killam. Respondent has never been engaged in a business enterprise with Carlan Killam as a partner, a joint venturer, a co-owner of property, or in a corporate entity whose shares are not listed on a national or regional stock exchange.
DelGallo-Morette provides construction services to Escambia County.
Benson suggested that Respondent contact DelGallo- Morette as a potential sponsor. Both Respondent and Benson discussed sponsorship of the Lois and Mike Show with Steve DelGallo, the president of DelGallo-Morette.
Subsequently, DelGallo-Morette provided a one-time payment of $2,500 to sponsor the Lois and Mike Show. That payment was made on or about August 21, 1998. Benson's credible testimony was that she and DelGallo are good friends and that if there was any reason for DelGallo-Morette to sponsor the show, it
was because she had just recently drawn the house plans for DelGallo free of charge.
Matters that came before the Escambia County Commission for a vote regarding DelGallo-Morette just before and after it became a sponsor of the Lois and Mike Show include the following:
On June 23, 1998, the Commission approved the unanimous recommendation of the Bid Review Committee to award a lump sum contract to DelGallo-Morette, in the amount of $89,5000 as the lowest, most responsive, and most responsible bidder, for a renovation construction project. This item was unanimously approved by the Commission, upon motion made by Respondent. This vote occurred prior to any sponsorship funds being paid to B & W Productions by DelGallo-Morette.
On June 30, 1998, upon motion by Respondent, the Commission approved an increase in maximum price, by a sum not to exceed $385,000, for telecommunication system improvements at the M.C. Blanchard Judicial Center pursuant to a contract approved by the Commission on
November 19, 1996, with Brown and Root Building Company, in association with DelGallo-Morette. This vote occurred prior to any sponsorship funds being paid to B & W Productions by DelGallo-Morette.
On November 24, 1998, upon motion by Respondent, the Commission unanimously approved a guaranteed maximum price on the Escambia County Control Booking and Detention Facility in the amount of
$14,661,576 with Brown and Root Building Company, as the contractor, in association DelGallo-Morette and a total project cost of $16,054,682 relative to Contract PD 97-97.155. This vote occurred after the one-time sponsorship payment was made paid to B & W Productions by DelGallo-Morette.
On March 18, 1999, the Commission approved amending Contract PD 95-96.113 with Brown and Root Building Company, in association with DelGallo-Morette, to increase the guaranteed maximum price of
$900,000 to provide for additional costs for construction change orders and other items associated with renovation of the
M.C. Blanchard Judicial Center Expansion Project. This item was unanimously approved as part of the Commission's Consent Agenda by a vote of 4-0. Respondent was absent and did not vote.
With respect to each of the matters which were the subject of votes referenced in paragraph 37, neither Respondent nor B & W Productions provided any services to DelGallo-Morette. Nor did Respondent or B & W Productions have any responsibility for evaluating or inspecting DelGallo-Morette's performance under the contracts addressed by the votes. Neither Respondent nor
B & W Productions provided any services with respect to any of the projects which were the subjects of those votes. Further, neither Respondent nor B & W Productions benefited in any manner from the votes of the Commission approving various items involving DelGallo-Morette.
Respondent has never been employed or retained by DelGallo-Morette. Moreover, Respondent has never been engaged in a business enterprise with DelGallo-Morette as a partner, a joint venturer, a co-owner of property, or in a corporate entity whose shares are not listed on a national or regional stock exchange.
Champion is a forest products company whose primary products are a variety of papers, lumber, and plywood. Champion
has a contract with Escambia County for the disposal of ash at the landfill in exchange for natural gas.
In August or September 1998, Respondent and Benson met with representatives of Champion to discuss sponsorship of the Lois and Mike Show. Benson made most of the presentation which focused on the negative public image of Champion in the community at that time. Champion's negative image resulted from Champion's planned wastewater discharge into Escambia Bay. The Escambia County Commission did not have regulatory jurisdiction over this issue. Rather, regulatory jurisdiction resided at the Department of Environmental Protection and the Environmental Protection Agency.
Champion was a segment sponsor of the Lois and Mike Show for a year, beginning in September 1998 through September 1999, at a rate of $260 a month. As a segment sponsor, Champion paid $260 monthly. From October 1999 through December 1999, Champion paid $178.50 per month to sponsor the show and in December 1999, Champion paid $119 in sponsorship fees. After December 1999, Champion discontinued its sponsorship of the show.
The following matters that came before the Escambia County Commission regarding Champion before and after it became a sponsor of the Lois and Mike Show:
On July 28, 1999, the Commission approved retaining Chris H. Bentley, Esquire, to monitor and advise the Commission on Champion's permitting activities regarding discharge of treated wastewater into Escambia River. This item was
unanimously approved by Commission upon motion seconded by Respondent. This vote occurred prior to any sponsorship funds being paid to B & W Productions by Champion and did not address any item which Champion had before the Commission.
On September 22, 1998, the Commission amended its License Agreements with Champion for the period January 1, 1998, through December 31, 1998, to include installation of gas monitoring wells at various landfill sites which was inadvertently omitted from the prior approved agreements. This item was unanimously approved by the Commission, upon motion made by Respondent. This vote occurred prior to any sponsorship funds being paid to B & W Productions by Champion.
On October 8, 1998, the Commission took two actions concerning Champion. First, it voted to accept, for filing in the minutes of the Commission, the "Escambia County Citizens' Executive Point Paper" regarding Champion's proposed discharge of wastewater into the Escambia River. This action was taken unanimously, upon motion seconded by Respondent. Second, the Commission voted to approve the staff's making a written request to Environmental Protection Agency's (EPA) "Technology Team" to evaluate the impact of Champion's proposed wastewater discharge into Escambia Bay relative to the request of the Escambia County Citizen's Coalition, Inc. This action was taken unanimously, upon motion made by Respondent. This vote occurred prior to any sponsorship funds being paid to
B & W Productions by Champion and did not
address any item which Champion had before the Commission.
On November 5, 1998, the Commission discussed a proposal from the Department of Environmental Protection that Escambia County form a partnership with Santa Rosa County and the EPA for a unified peer
review approach to Champion's proposed relocation wastewater discharge point and to analyze the processing of wastewater discharge permitted for Champion and its impact on Escambia Bay and Perdido Bay.
The Commission voted unanimously to refer to DEP's proposal to the County's Department of Neighborhood and Environmental Services for analysis and recommendation. This vote occurred after sponsorship funds were paid to B & W Productions by Champion and did not address any item which Champion had before the Commission.
On November 24, 1998, the Commission approved the renewal of four License Agreements with Champion for the operation of water quality monitoring and gas wells located at various landfill sites, for the period January 1, 1999, through December 31, 1999. This item occurred after sponsorship funds were paid to B & W Productions by Champion.
On February 2, 1999, the Commission adopted a resolution urging Champion to use monies encumbered for construction and permitting of its proposed pipeline to the Escambia River to fund improvements to the effluent being dumped into Eleven Mile Creek. This item was approved by the Commission, by a vote of 3-2, with Respondent voting in the affirmative. This vote occurred after sponsorship funds were paid to B & W Productions by Champion and did not address any item which Champion had before the Commission.
On April 8, 1999, the Commission authorized staff to negotiate the purchase of a parcel of property from Champion to be used as a district park. This item was unanimously approved by the Commission, upon motion made by Respondent, with Commissioner Boss absent. This vote occurred after sponsorship funds were paid to B & W Productions by Champion and after
responsibility for collecting and accounting for sponsorship funds for the Lois and Mike Show was transferred to BLAB TV.
On April 22, 1999, the Commission amended a previously approved Qualified Industry Tax Refund Incentive for Champion's dimensional lumber production facility. This item was unanimously approved by the Commission, upon motion made by Respondent, with Commissioner Robertson absent. This vote occurred after sponsorship funds were paid to B & W Productions by Champion and after responsibility for collecting and accounting for sponsorship funds for the Lois and Mike Show was transferred to BLAB TV.
On June 22, 1999, the Commission adopted an ordinance establishing an economic development ad valorem tax exemption for Champion for its expansion of its Pensacola Mill located in Cantonment and for its hiring of additional employees. (Champion had expended $40 million in improvements at the facility that resulted in increased production and employment.) An employee of Champion met individually with Respondent as well as other members of the Commission to discuss this issue. The value of the ad valorem tax exemption to Champion was
$1.8 million spread over 6.9 years. This
item was unanimously approved by the Commission. This vote occurred after sponsorship funds were paid to B & W Productions by Champion and after responsibility for collecting and accounting for sponsorship funds for the Lois and Mike Show was transferred to BLAB TV.
On July 15, 1999, the Commission approved the purchase of real property for a park from Champion for $375,000. This item was approved as part of the Commission's Consent Agenda by a vote of 4-0, with Respondent absent.
With respect to each of the matters which were the subject of votes referenced in paragraph 43, neither Respondent nor B & W Productions provided any services to Champion. Nor did Respondent or B & W Productions have any responsibility for evaluating or inspecting Champion's performance under the items addressed by the votes. Neither Respondent nor B & W Productions provided any services with respect to any of the matters which were the subject of these votes. Neither Respondent nor B & W Productions benefited in any manner from the votes of the Commission on these items involving Champion. Respondent had no interest in the real property which the Commission directed staff to negotiate with Champion regarding purchase by the county.
Respondent has never been employed or retained by Champion. Moreover, Respondent has never been engaged in a business enterprise with Champion as a partner, a joint venturer, a co-owner of property, or in a corporate entity whose shares are not listed on a national or regional stock exchange.
Respondent was present and voted in favor of all of the issues involving sponsors as set forth in paragraphs 25, 31, 37, and 43 above, except as otherwise noted.
All of the aforementioned sponsors paid for the sponsorship of the Lois and Mike Show. Furthermore, two of these sponsors, Baskerville-Donovan and Champion, continued to make monthly sponsorship payments in months just before, as well as after the votes, in the amounts of $200 and 260, respectively.
Since the sponsorships reduced the personal contributions that had to be made by Respondent and his business associate, Benson, for the airing of the Lois and Mike Show, they directly benefited from money received from sponsors who did business with and regularly appeared before the Escambia County Commission.
The facts show that all four of the above-mentioned sponsors were doing business with the Escambia County Commission and that both Baskerville-Donovan and Champion made sponsorship payments for the Lois and Mike Show during this interim period after dissolution but prior to the time that Respondent transferred his interest in the show to Lois Benson.
Neither Respondent nor Benson believed that soliciting sponsorship from businesses that appear before the Escambia County Commission for a vote was a conflict. However, Respondent's contractual relationship with B & W Productions, and its interest in the Lois and Mike Show, his direct solicitation of sponsorships from businesses appearing before the County Commission, and Respondent's and B & W's dependence upon funds derived from those sponsors, constituted a continuing and frequently recurring conflict between Respondent's private interests and the performance of his public duties as a member of the Escambia County Commission.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this proceeding. Section 120.57(1), Florida Statutes.
Section 112.322, Florida Statutes, and Rule 34.5.0015, Florida Administrative Code, authorize the Commission to conduct investigations and to make public reports on complaints concerning violations of Part III, Chapter 112, Florida Statutes, the Code of Ethics for Public Officers and Employees.
The burden of proof, absent a statutory directive to the contrary, is on the party asserting the affirmative of the issue in the proceeding. Department of Transportation vs. J.W.C. Co., Inc., 396 So. 2d 778 (Fla. 1st DCA 1981); Balino v. Department of Health and Rehabilitative Services, 348 So. 2d 349 (Fla. 1st DCA 1977). In this proceeding, it is the Ethics Commission, through its Advocate, that is asserting the affirmative: namely that Respondent violated Sections 112.313(7)(a) and 112.3143(3)(a), Florida Statutes. Therefore, the Commission must establish by clear and convincing evidence the elements of the alleged violations. Latham vs. Commission on Ethics, 694 So. 2d 83 (Fla. 1st DCA 1997), citing Department of Banking and Finance v. Osborne Stern, 670 So. 2d 932 (Fla. 1996), and Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987). See also Section 120.57(1)(j), Florida Statutes.
As noted by the Florida Supreme Court:
[C]lear and convincing evidence requires that the evidence must be found to be credible; the facts to which the witnesses testify must be distinctly remembered; the testimony must be precise and explicit and the witnesses must be lacking in confusion as to the facts in issue. The evidence must be of such weight that it produces in the mind of the trier of fact a firm belief or conviction, without hesitancy, as to the truth of the allegations sought to be established.
In Re Davey, 645 So. 2d 398, 404 (Fla. 1994), quoting Slomowitz
v. Walker, 429 So. 2d 797, 800 (Fla. 4th DCA 1993). See also Evans Packing Company v. Department of Agriculture and Consumer Services, 550 So. 2d 112, 115, n.5 (Fla. 1st DCA 1989).
It has been alleged that Respondent had an employment or contractual relationship with B & W Productions which created a continuing or frequently recurring conflict between his private interests and the performance of his public duties or which impeded the full and faithful discharge of his public duties in violation of the second clause of Section 112.313(7)(a), Florida Statutes. That section provides, in pertinent part, as follows:
CONFLICTING EMPLOYMENT OR CONTRACTUAL RELATIONSHIP.--
No public officer or employee of an agency shall have or hold any employment or contractual relationship with any business entity or any agency which is subject to the regulation of, or is doing business with, an agency of which he or she is an officer or employee, excluding those organizations and their officers who, when acting in their official capacity, enter into or negotiate a collective bargaining contract with the state or any municipality, county, or other political subdivision of the state; nor shall
an officer or employee of an agency have or hold any employment or contractual relationship that will create a continuing or frequently recurring conflict between his or her private interests and the performance of his or her public duties or that would impede the full and faithful discharge of his or her public duties. (Emphasis Supplied)
Section 112.312(8), Florida Statutes, provides that "'[C]onflict' or 'conflict of interest' means a situation in which regard for a private interest tends to lead to disregard of a public duty or interest."
In order to establish a violation of the second part of Section 112.313(7)(a), Florida Statutes, the following elements must be proved by clear and convincing evidence:
The Respondent must have been a public officer or employee.
The Respondent must have held an employment or contractual relationship that will:
Create a continuing or frequently recurring conflict between the Respondent's private interests and the performance of the Respondent's public duties; or
Impede the full and faithful discharge of the Respondent's public duties.
Respondent has stipulated that he was a public officer and, as such, subject to the requirements of Part III, Chapter 112, Florida Statutes, the Code of Ethics. Therefore, the first element is established as to the allegations regarding Section 112.313(7)(a), Florida Statutes.
Next, to establish a violation of the second clause of Section 112.313(7)(a), Florida Statutes, it must be determined whether Respondent's relationship with B & W Productions created a conflict or impeded the full and faithful discharge of his public duties. Here, the clear and convincing evidence established that Respondent had a contractual relationship with B & W Productions and that the relationship created a continuing or frequently recurring conflict between Respondent's private interests and the performance of his public duties.
In Zerweck v. Commission on Ethics, 409 So. 2d 57 (Fla. 4th DCA 1982), the court upheld the validity of Section 112.31.(7), Florida Statutes, against unconstitutional vagueness, and held that the provision establishes an objective standard of conduct and does not require a finding of actual corruption to establish a violation thereof. Zerweck held that:
. . . Section 112.313(7)(a), Florida Statutes (1979), establishes an objective standard which requires and examination of the nature and extent of the public officer's duties together with a review of his private employment to determine whether the two are compatible, separate and distinct or whether they coincide to create as situation which "tempts dishonor " Id. at 61.
For purposes of finding a violation under the second clause of Section 112.313(7)(a), Florida Statutes, the clear and convincing evidence at hearing establish that Respondent's public duty of independence and impartiality was in conflict with Respondent's private financial and business interests as it
related to B & W Productions and its production of the Lois and Mike Show.
At hearing, the uncontroverted evidence demonstrated that B & W Production's sole source of revenue was derived from sponsors, many of whom were solicited by Respondent. Moreover, the clear and convincing evidence established that Respondent personally and successfully solicited sponsorships for B & W Productions from firms who did business with and regularly appeared before the Escambia County Commission.
Here, it is significant, and the evidence is undisputed, that at the time Respondent solicited these sponsorships on behalf of B & W Productions, the subject firms had on-going contracts with Escambia County. Furthermore, the evidence established that pursuant to agreements between B & W Productions and the subject firms, many of the sponsorship payments were made to B & W Productions or BLAB TV, just before or after votes were made on matters affecting the firms.
In this case, there is no evidence that Respondent either misused or intended to misuse his public position to promote or further his private interests. However, such a finding is not necessary to establish a violation of the second clause of Section 112.313(7)(a), Florida Statutes. Application of the standard set forth in Zerweck requires only that the contractual relationship create a situation which "tempts
dishonor." The established facts in this case create such a situation.
The second allegation is that Respondent voted on measures that came before the Escambia County Commission regarding Baskerville-Donovan, Carlan Killam Consulting, Champion, and DelGallo-Morette in violation of Section 112.3143(3)(a), Florida Statutes. That section provides, in pertinent part, as follows:
No county, municipal, or other local public officer shall vote in an official capacity upon any measure which would inure to his or her special private gain or loss; which he or she knows would inure to the special private gain or loss of any principal by whom he or she is retained or to the parent organization or subsidiary of a corporate principal by which he or she is retained, other than an agency as defined in s. 112.312(2); or which he or she knows would inure to the special private gain or loss of a relative or business associate of the public officer.
Such public officer shall, prior to the vote
being taken, publicly state to the assembly the nature of the officer's interest in the matter from which he or she is abstaining from voting and, within 15 days after the vote occurs, disclose the nature of his or her interest as a public record in a memorandum filed with the person responsible for recording the minutes of the meeting, who shall incorporate the memorandum in the minutes.
The term "business associate" as used in Section 112.3143(3)(a), Florida Statutes, is defined by Section 112.312(4), Florida Statutes, as follows:
"Business associate" means any person or entity engaged in or carrying on a business enterprise with a public officer, public
employee, or candidate as a partner, joint venturer, corporate shareholder where the shares of such corporation are not listed on any national or regional stock exchange, or co-owner of property.
In order to establish a violation of Section 112.3143(3)(a), Florida Statutes, the following elements must be proved by clear and convincing evidence:
Respondent must have been a county, municipal, or other local public officer.
Respondent must have:
Voted on a measure that inured to his special private gain or loss; or
Knowingly voted on a measure that inured special private gain or loss of any principal by whom he was retained, or to the parent organization or subsidiary of a corporate principal by whom he is retained, other than agency defined in Section 112.312(2), Florida Statutes; or
Knowingly voted on a measure that inured to the special private gain of a relative or business associate; and/or
Respondent must have failed to publicly announce to the assembly the nature of his interests in the matter being voted on prior to the vote being taken.
Respondent has stipulated that he was a public officer and, as such, subject to the requirements of Part III, Chapter 112, Florida Statutes. Therefore, the first element is established as to the allegations regarding Section 112.3143(3)(a), Florida Statutes.
The other elements required to show a violation of Section 112.3143(3)(a), Florida Statutes, have not been proved. The evidence presented at the final hearing failed to demonstrate
that Respondent's votes in favor of sponsors of the Lois and Mike Show inured to his own special private gain or to the special private gain of his business associate, Benson, and their corporation, B & W Productions.
Penalties that may be imposed for any violation of the Code of Ethics include removal or suspension from office, public censure and reprimand, forfeiture of no more than one-third salary per month for no more than 12 months, and a civil penalty not to exceed $10,000. Section 112.317, Florida Statutes.
Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby
RECOMMENDED that the Ethics Commission enter a final order and public report finding that Respondent, David Whitehead: (1) did not violate Section 112.3143(3)(a), Florida Statutes; and
(2) violated Section 112.313(7)(a), Florida Statutes. It is further recommended that for the violation of Section 112.313(7)(a), Florida Statutes, the Commission impose a civil penalty of $2,000 against Respondent and issue a public censure and reprimand.
DONE AND ENTERED this 15th day of August, 2000, in Tallahassee, Leon County, Florida.
CAROLYN S. HOLIFIELD
Administrative Law Judge
Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, Florida 32399-3060
(850) 488-9675 SUNCOM 278-9675
Fax Filing (850) 921-6847 www.doah.state.fl.us
Filed with the Clerk of the Division of Administrative Hearings this 15th day of August, 2000.
COPIES FURNISHED:
James H. Peterson, III, Esquire Office of the Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050
Mark Herron, Esquire
Akerman, Senterfitt & Edison, P.A.
301 South Bronough Street, Suite 200 Tallahassee, Florida 32801
Sheri L. Gerety, Agency Clerk Florida Commission on Ethics
2822 Remington Green Circle, Suite 101 Post Office Drawer 15709
Tallahassee, Florida 32317-5709
Philip C. Claypool, General Counsel Florida Commission on Ethics
2822 Remington Green Circle, Suite 101 Post Office Drawer 15709
Tallahassee, Florida 32317-5709
Bonnie J. Williams, Executive Director Florida Commission on Ethics
2822 Remington Green Circle, Suite 101 Post Office Drawer 15709
Tallahassee, Florida 32317-5709
NOTICE OF RIGHT TO SUBMIT EXCEPTIONS
All parties have the right to submit written exceptions within 15 days from the date of this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.
| Issue Date | Document | Summary |
|---|---|---|
| Nov. 21, 2000 | Agency Final Order | |
| Aug. 15, 2000 | Recommended Order | Respondent`s relationship with his production company created a continuing conflict where Respondent personally solicited sponsorships from firms that regularly appeared before or did business with the Escambia County Commission on which he served. |
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