Mr. Trematerra's and Mr. Herman's names from fight assignments after they provided affidavits concerning Respondent's misconduct to Department of Business and Professional Regulation's Inspector General; (l) representing falsely to the Salvation Army and the public on Athletic Commission stationery that David Walker had completed 16 hours of his obligatory community service; and (4) Whether Respondent violated Subsections 112.3148(3) and (4), Florida Statutes, by soliciting and accepting tickets and free admissions from promoters, and, if Respondent is guilty of any of these alleged offenses, what penalty is appropriate.
On October 10, 2000, the Florida Commission on Ethics (the Commission) entered an Order Finding Probable Cause to believe that Respondent violated various provisions of Chapter 112, Florida Statutes, during his term as Executive Director of the Athletic Commission. On April 13, 2001, the case was forwarded to the Division of Administrative Hearings. On April 27, 2001, the case was set for final hearing in Tampa, Florida. Final hearing was held on August 13, 2001 through August 17, 2001, in Tampa, Florida. The Advocate called nine witnesses in its case
in chief: Peter Trematerra, Paul Herman, Donald Hazelton, Shelly Bradshaw, Allen Grossman (via deposition), Terry James, Aleida Waldman, Julio Martinez and Respondent. The Advocate offered 30 exhibits which were received into evidence. These exhibits are numbered 1, 2, 3, 4, 7, 20, 21, 25, 26, 27, 29, 30,
107, and 108. Respondent called nine witnesses: David Walker, Bragg Crane, L. Tina Crane, Alvin Goodman, Eric Riley, Tommy Torrino, Bobby Wilds, Alan Fields, M.D., and Brian Garry.
Respondent also testified in his own behalf. One exhibit was received into evidence and numbered Respondent's Exhibit 1.
Shelly Bradshaw was presented as a rebuttal witness by the Advocate.
Brian Garry, one of the witnesses, attempted to make his testimony contingent on the acceptance of a sworn statement by the undersigned Administrative Law Judge. This contingency was not accepted. However, because the witness' sworn statement was discussed on the record, it is included in this record in a sealed envelope as ALJ's Exhibit 1.
The Transcript of the Proceedings was filed with Division of Administrative Hearings on October 12, 2001. Both Respondent and the Advocate requested time extensions for filing proposed recommended orders which were granted and extended the time for filing until November 30, 2001. Both timely filed Proposed
Recommended Orders which were thoughtfully considered by the undersigned Administrative Law Judge.
Respondent, Morris Michael "Mike" Scionti, was Executive Director of the Athletic Commission from May 6, 1996 through March 11, 1999.
During his pre-employment interview with Commissioners of the Athletic Commission, Respondent advanced his vision to establish a foundation to assist boxers in obtaining job training, education, and other benefits.
The Athletic Commission, through its Commissioners, gave conceptual approval to the creation of a foundation but did not want the Athletic Commission or Respondent to be directly involved with the foundation.
Respondent initiated the formal creation of the Florida State Boxing Foundation, Inc. ("Foundation"), in June 1997. The Foundation obtained 501(c)(3) tax-exempt status in
December 1997. Respondent was never an employee, officer or trustee of the Foundation. After the formation of the Foundation, there is no evidence of formal involvement of either Respondent or the Athletic Commission in its affairs.
Respondent advocated the Foundation to individuals interested in boxing and advised the Athletic Commission of the status of the Foundation at Athletic Commission meetings.
Early in 1997, at the request of Don King ("King"), a successful and controversial boxing promoter, he and Respondent met at King's office in South Florida. Prior to this meeting the parties had not known each other. During the discussion of their common interest, boxing, King advised that he was moving his entire boxing operation to Florida. In the discussion, Respondent mentioned his vision of a foundation to assist boxers. King indicated that he thought the foundation was a wonderful idea and offered to donate $100,000 to get the foundation started. The evidence presented clearly demonstrates that Respondent did not solicit the donation from King.
Knowing that the Athletic Commission had instructed him to "stay at arms length from the Foundation," Respondent did not initially accept King's offer; he reported the offer at the next Athletic Commission meeting where a cautious, tacit approval was received. Respondent testified that he would have refused the donation had the Athletic Commission voiced disapproval.
It was not inappropriate for Respondent, as Executive Director of the Athletic Commission, to advocate and publicly support a foundation chartered to provide job training, education and other benefits to boxers.
On January 12, 1998, shortly after the Foundation received 501(c)(3) status, Don King Productions, Inc., tendered a $100,000 check to the Florida State Boxing Foundation, Inc.
No evidence was presented indicating that Respondent directly or indirectly benefited from King's $100,000 donation to the Foundation or that the donation was made based upon any understanding that Respondent's judgement or any official action would be influenced by the donation. Nor is there any evidence that Respondent should have known that the donation was given to influence any official action by Respondent.
Boxing promoters, who do business in Florida, must apply for an annual license. Don King and/or Don King Productions, Inc., had been licensed in Florida in 1993, 1994, 1995, 1996, and 1997. The license application dated January 13, 1998, fails to reveal a Federal indictment for insurance fraud in March 1997, although it improperly lists a license suspension for wire fraud in New Jersey.
Relying on the 1998 license application (which did not reveal the March 1997 insurance fraud indictment), the Athletic Commission staff in the Tallahassee office issued Don King Productions, Inc., a 1998 promoter's license. In August 1998, after the discrepancy was discovered, the Athletic Commission issued King a Rule to Show Cause as to why his 1998 license should not be suspended or revoked for failure to report the 1997 insurance fraud indictment.
The 1998 license renewal was handled through the Athletic Commission's Tallahassee office. Respondent's office
was in Tampa; he was not directly involved in issuing the 1998 license. At the Rule to Show Cause hearing, Respondent blamed the Tallahassee office staff for not finding King's omission.
"Exclusive" or "long-term" promotional contracts between boxers and promoters, although a standard in the boxing industry and widely accepted, have been a source of controversy in Florida. Apparently, there was a division of opinion among Commissioners of the Athletic Commission as to the appropriateness of such contracts. Although the Athletic Commission had not taken a formal position on the subject, Respondent's predecessor, who was personally opposed to such contracts, authored several letters indicating that such contracts were not enforceable under Florida law.
Respondent did not share his predecessor's negative opinion of "exclusive" or "long-term" promotional contracts, to the contrary, he believed such contracts to be beneficial to boxing. Respondent sought the advice of individuals involved in boxing, including employees of King, on the subject.
Don King Productions, Inc., and other promoters would benefit if "exclusive" or "long-term" promotional contracts were recognized and enforceable in Florida.
On June 19, 1998, Respondent sent a letter on official state stationery to Charles Lomax, attorney for Don King Productions, Inc., advising him that the prohibition on
"exclusive" or "long-term" promotional contracts in Florida was merely his predecessor's personal opinion. He stated he would keep Mr. Lomax updated on the progress of this matter.
During the August 8, 1998, meeting of the Athletic Commission, Respondent presented a memo which advocated promotional contracts, clearly indicated his disagreement with the position taken by his predecessor on the subject and recommended that the Athletic Commission permit such contracts subject to reasonable regulation.
Subsequent to the meeting, Commissioner Terry James had occasion to examine the Athletic Commission's file on promotional contracts. When Commissioner James reviewed the file, he noticed the computer tags on the documents in the file were the same as the tags he had seen on Sonny Holtzman's documents. Mr. Holtzman represented King on matters before the Commission.
Although Don King Productions, Inc., and other promoters benefited from Respondent's support of "exclusive" or "long-term" promotional contracts, no evidence was presented that demonstrated that Respondent's support was a result of King's donation to the Foundation.
The advocate presented three witnesses, Peter Tremetera, Paul Herman, and Shelly Bradshaw, who through their actions during Respondent's tenure as Executive Director of the
Athletic Commission and their demeanor while giving testimony at the final hearing, demonstrated such a negative bias toward Respondent that much of their testimony is not credible.
The solicitation and acceptance of free tickets and misuse of "pass lists" to boxing events by Commissioners and staff of the Athletic Commission has historically been a problem. This is evidenced by a 1991 Ethics Commission case involving a former chairman of the Athletic Commission [In re: James Resnick, 14 F.L.A.R. 1001 (1991)], a March 26, 1997, inquiry response from a Ethics Commission staff attorney on the subject, and specific direction on the subject from the Athletic Commission staff attorney. It is clearly appropriate for Commissioners and staff who have a legitimate function associated with a boxing event to be admitted to the event without paying an admission fee. It is similarly clear that it is inappropriate for relatives, friends, political associates, and other individuals who have no legitimate Athletic Commission function to gain free admission to a boxing event as a result of an association with the Athletic Commission.
Respondent gave Peter Trematerra free tickets to several boxing events. Respondent placed an attorney who had no Athletic Commission involvement on the pass list "all the time." Respondent solicited free tickets from a promoter in the Lou Duva organization.
Respondent signed a receipt for twenty 75-dollar tickets and thirty 50-dollar tickets for a January 31, 1998, boxing event at the Ice Palace in Tampa.
During his tenure as Executive Director, Respondent solicited and accepted free tickets to boxing events from event promoters, or caused the names of individuals who had no legitimate function related to the Athletic Commission to be placed on "pass lists" which allowed free admissions to boxing events.
Evidence was presented that indicated that not only Respondent but others associated with the Athletic Commission solicited and accepted tickets or passes for individuals who had no legitimate function with particular boxing events.
In September 1997, David Walker performed 16 hours of community service at the Tampa office of the Athletic Commission
Two documents were signed by Respondent, one, a letter dated September 21, 1997, indicating that David Walker had performed 16 hours of community service; the second, a memo indicating that David walker had completed the 16 hours of community service on two Saturdays, September 6 and 13, 1997.
David walker testified that he had completed the community service on weekdays.
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 (1997).
Section 112.322, Florida Statutes, and Rule 34-5.0015, Florida Administrative Code, authorize the Commission on Ethics to conduct investigations and to make public reports on complaints concerning violations of Part III, Chapter 112, Florida Statutes (the Code of Ethics for Public Officers and Employees).
The burden of proof, absent a statutory directive to the contrary, is on the party asserting the affirmative of the issue of the proceedings. Department of Transportation v. J.W.C. Co., Inc., 396 So. 2d 778 (Fla. 1st DCA 1981); Balino v.
Department of Health and Rehabilitative Services, 348 So. 2d 349 (Fla. 1st DCA 1977). In this proceeding, it is the Commission on Ethics, through its Advocate, that is asserting the affirmative: that Respondent violated Subsections 112.313(2),112.313(4), 112.313(6) and 112.3148(3) and (4),
Florida Statutes. Therefore, the burden of establishing by clear and convincing evidence the elements of Respondent's violation is on the Commission on Ethics. Latham v. Florida
Commission on Ethics, 694 So. 2d 83 (Fla. 1st. DCA 1997).
As noted by the Supreme Court of Florida:
[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 1983).
If determined to be guilty of the violations of the Subsections of Chapter 112, Florida Statutes, as alleged, Respondent may suffer a civil penalty, public censure and reprimand. Statutes that authorize the imposition of penal sanctions must be strictly construed and any ambiguity must be construed in favor of Respondent. Elmariah v. Department of Business and Professional Regulation, 574 So. 2d 164, 165 (Fla. 1st. DCA 1990). The Florida lenity statute, Subsection 775.021(1), Florida Statutes, provides that: "offenses" defined by any Florida Statute must be construed most favorably to the offender if the language is susceptible to different meanings. Pasquale v. Florida Elections Commission, 759 So. 2d 23, 26 (Fla. 4th. DCA 2000).
Respondent, in his capacity as Executive Director of the Athletic Commission, was a public officer subject to the provisions of the Code of Ethics for Public Officers and Employees contained in Part III of Chapter 112, Florida Statutes, and is subject to the jurisdiction of the State of Florida Commission on Ethics. Subsection 112.313(1), Florida Statutes, defines the term "public officer" to include "any person . . . appointed to hold office in any agency. . . ." An "agency" is defined in Subsection 112.312(2), Florida Statutes, to include "any state . . . commission."
While Respondent was the Executive Director, Subsections 112.313(2) and (4), Florida Statutes, prohibited him from soliciting and/or accepting anything of value from persons regulated by the Athletic Commission. Subsections 112.313(2) and (4), Florida Statutes, provide as follows:
(2) Solicitation or acceptance of gifts.-
-No public officer, employee of an agency, local government attorney, or candidate for nomination or election shall solicit or accept anything of value to the recipient, including a gift, loan, reward, promise of future employment, favor, or service, based upon any understanding that the vote, official action, or judgment of the public officer, employee, local government attorney, or candidate would be influenced thereby.
(4) Unauthorized compensation.--No public officer, employee of an agency, or local government attorney or his or her spouse or minor child shall, at any time, accept any compensation, payment, or thing of value
when such public officer, employee, or local government attorney 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, employee, or local government attorney was expected to participate in his or her official capacity.
With respect to an alleged violation of Subsection 112.313(2), Florida Statutes, the Advocate must establish by clear and convincing evidence that:
The Respondent was either a public officer or a public employee.
The Respondent either solicited or accepted anything of value to the recipient.
The solicitation or acceptance was based upon the understanding that the official action or judgment of the public officer would be influenced thereby.
With respect to an alleged violation of Subsection 112.313(4), Florida Statutes, the Advocate must establish by clear and convincing evidence that:
The Respondent was either a public officer or a public employee.
The Respondent accepted compensation payment or a thing 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 the 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 the Respondent was expected to participate in his official capacity.
The evidence fails to demonstrates that the elements for the alleged violations as they relate to the $100,000 donation from Don King and/or Don King Productions, Inc., have been met. There is no evidence that Respondent solicited a
$100,000 contribution to the foundation he envisioned from King when he spoke of his plan to form such a foundation in a private meeting with King. To the contrary, the evidence suggests that King gratuitously offered the donation. There is no evidence showing that Respondent benefited or received anything of value as a result of the donation. Nor is there any evidence that the donation was given based upon an understanding that Respondent's official action or judgement would be influenced by the donation or that Respondent should have known the donation was given to influence an official action. If evidence elicited at the final hearing circumstantially suggests any of the foregoing elements of proof, it falls far short of being "clear and convincing."
No credible evidence was presented that Respondent solicited boxing officials for political contributions or donations to the Foundation; similarly, there is no competent evidence that Respondent solicited Peter Tremetera, a boxing official, for a loan and travel expenses for Ms. Cathy Reed.
Subsection 112.313(6), Florida Statutes, provides:
(6) Misuse of public position.--No public officer, employee of an agency, or local government attorney shall corruptly use or attempt to use his or her official position or any property or resource which may be within his or her trust, or perform his or her official duties, to secure a special privilege, benefit, or exemption for himself, herself, or others. This section shall not be construed to conflict with s. 104.31.
In order to prove Respondent violated Subsection 112.313(6), Florida Statutes, the Advocate must prove by clear and convincing evidence the following elements of the alleged
violations:
The Respondent must be either a public
official or a public employee.
The Respondent must have used or attempted to use his official position or property or resources within his trust or performed his official duties:
Corruptly; and
With an intent to secure a special privilege, benefit or exemption for himself or others.
The term "corruptly" is defined in Subsection 112.312(9), Florida Statutes, as follows:
(9) "Corruptly" means done with a wrongful intent and for the purpose of obtaining, or compensating or receiving compensation for, any benefit resulting from some act or omission of a public servant which is inconsistent with the proper performance of his or her public duties.
No credible evidence was presented that Respondent solicited funds for the Foundation or solicited political contributions from persons or entities regulated by the Athletic Commission.
The fact that Respondent's personal opinion as to the propriety of "exclusive" or "long-term" promotional contracts was shared by King and other promoters and was not in concert with Respondent's predecessor, and that Respondent sought the advice of individuals in the boxing community, including individuals employed by King, does not demonstrate corrupt use of Respondent's official position or that he intended to secure a special benefit for King and others similarly situated.
The evidence elicited from Commissioner Terry James regarding the "computer tags" does not demonstrate clearly and convincingly that Respondent's memo and letters regarding the issue of promotional contracts were not Respondent's own opinion and work product. Nor does it demonstrate that Respondent "lied" to the Athletic Commission as alleged.
No credible evidence was presented that Respondent punished or rewarded any boxing official's assignments based on personal considerations of perceived loyalty or disloyalty or any other inappropriate consideration.
Evidence establishes clearly and convincingly that Respondent solicited and accepted free tickets from boxing
promoters and caused individuals names to be placed on "pass lists" who had no legitimate reason for being admitted to the particular boxing event without paying an admission charge. In so doing, Respondent was acting in his official capacity, his actions were corrupt as defined, and these actions were done to obtain a special benefit for himself or another person.
The evidence demonstrates clearly and convincingly that the memo authored by Respondent with reference to the actual days on which David Walker performed community service was inaccurate. I do not find that this inaccuracy was done corruptly as defined in Subsection 112.312(9), Florida Statutes.
Subsections 112.3148(3) and (4), Florida Statutes, provide as follows:
A reporting individual or procurement employee is prohibited from soliciting any gift from a political committee or committee of continuous existence, as defined in s. 106.011, or from a lobbyist who lobbies the reporting individual's or procurement employee's agency, or the partner, firm, employer, or principal of such lobbyist, where such gift is for the personal benefit of the reporting individual or procurement employee, another reporting individual or procurement employee, or any member of the immediate family of a reporting individual or procurement employee.
A reporting individual or procurement employee or any other person on his or her behalf is prohibited from knowingly accepting, directly or indirectly, a gift from a political committee or committee of continuous existence, as defined in s. 106.011, or from a lobbyist who lobbies the
reporting individual's or procurement employee's agency, or directly or indirectly on behalf of the partner, firm, employer, or principal of a lobbyist, if he or she knows or reasonably believes that the gift has a value in excess of $100; however, such a gift may be accepted by such person on behalf of a governmental entity or a charitable organization. If the gift is accepted on behalf of a governmental entity or charitable organization, the person receiving the gift shall not maintain custody of the gift for any period of time beyond that reasonably necessary to arrange for the transfer of custody and ownership of the gift.
In order to prove Respondent violated Subsection 112.3148(3), Florida Statutes, the Advocate must establish the following elements:
Respondent must have been a reporting individual or procurement employee.
Respondent must have solicited a gift, food, or beverage.
The gift must been solicited from a lobbyist who lobbies Respondent or his "agency."
The gift must be for the personal benefit of the reporting person or procurement employee or any member of the immediate family of a reporting individual or procurement employee.
Subsection 112.3148(2)(e), Florida Statutes, defines "procurement employee" as "any employee of [a] . . . commission
. . . of the executive branch . . . of state government who participates through . . . recommendation, . . . rendering of advice . . . or in any other advisory capacity in the
procurement of contractual services or commodities . . . if the cost of such service exceeds $1,000 in any year." No clear and convincing evidence was presented that Respondent met the statutory definition of a "procurement employee." Nor was clear and convincing evidence presented that the boxing promoters from whom Respondent may have received free tickets or passes are "lobbyists" as that term is used in Subsection 112.3148(2)(b)1, Florida Statutes.
In order to prove Respondent violated Subsection 112.148(4), Florida Statutes, the Advocate must establish the following elements:
Respondent must have been a reporting individual or procurement employee.
Respondent must have knowingly accepted the gift, with a value in excess of
$100.00, directly or indirectly.
Respondent must know or reasonably believe the gift has a value in excess of
$100.00.
The gift must have been accepted from a lobbyist who lobbies Respondent or his "agency."
