Respondent.
) Case No. 02-2826EC
This cause came on for formal hearing before Harry L. Hooper, Administrative Law Judge with the Division of Administrative Hearing, on October 10, 2002, in Deland, Florida.
For Advocate: James H. Peterson, III, Esquire
Assistant Attorney General Office of the Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050
For Respondent: Basyle J. Tchividjian, Esquire
The issue is whether Respondent violated Section 112.313(6), Florida Statutes, by misusing her position as a Town Councilperson to obtain a personal benefit, and if so, what is the appropriate penalty.
A complaint was filed against Respondent Bonnie A. Jones (Ms. Jones) with the Florida Commission on Ethics (Commission) on which was date stamped both August 3, 2000 and
August 21, 2000. An investigation followed and an Advocate's Recommendation was filed on April 2, 2002, recommending a finding of no probable cause. Nevertheless, the Commission found probable cause to believe that Ms. Jones misused her position as a Town Councilperson in an attempt to change the zoning classification of her real property for personal benefit. This was noted in an Order Finding Probable Cause filed June 11, 2002.
The matter was forwarded to the Division of Administrative Hearings and filed July 17, 2002. The case was set for hearing on October 11, 2002, in DeLand, Florida. Subsequent to a motion to set the case on October 10, 2002, the matter was re-scheduled for hearing on that date and was heard as scheduled.
At the hearing, the Advocate presented the testimony of Nancy Pennington, Robert Allen Keeth, Deborah LeBlanc, and Ms. Jones, and offered 19 exhibits which were admitted into evidence. Ms. Jones offered four exhibits which were admitted into evidence. Ms. Jones testified in her own behalf and
examined the witnesses called by the Advocate by examining them out of order.
A Transcript was filed on November 21, 2002. A Joint Stipulation and Motion for an Extension of Time to File Proposed Recommended Orders was filed on November 25, 2002. The Motion was granted and the time to submit Proposed Recommended Orders
was extended to December 13, 2002. The Advocate and Respondent timely filed Proposed Recommended Orders which were considered by the Administrative Law Judge in the preparation of this Recommended Order.
Pursuant to Article II, Section 8, Florida Constitution, and Section 112.320, Florida Statutes, the Commission is empowered to serve as the guardian of the standards of conduct for the officers and employees of the state. Pursuant to Sections 112.324 and 112.317, Florida Statutes, the Commission is empowered to conduct investigations and to issue a Final Order and Public Report, recommending penalties for violations of the Code of Ethics for Public Officers and Employees (Code of Ethics).
Ms. Jones is subject to the Code of Ethics. She was first elected to the Town Council of the Town of Pierson, Florida, in 1990, and she served four two-year terms. She served from 1990 to 1994 and then from 1998 until her term ended September 30, 2002. Ms. Jones also sat on county zoning boards for eight or nine years and was on the City Zoning Board prior to being elected to the Town Council. She is knowledgeable with regard to the process of zoning.
Pierson, Florida, is a town of about 3400 people. It is known for the production of ornamental ferns.
The Pierson Town Council has the power, through adoption of ordinances, to change the zoning of parcels of land within the Town of Pierson. Prior to 1992, this was accomplished by maintaining a file of city ordinances affecting zoning. There was no zoning map.
In 1994, a zoning map, printed on a vellum-like medium, was produced. This map, which will hereinafter be referred to as the "official zoning map," actually consisted of three separate sheets. It was precise and accurate in its depiction of the location of individual parcels and roads and streets. However, the lines denoting zoning were crudely drawn with a grease pencil. In 1999, it was believed it lacked completeness in that changes made by ordinance had not been entered upon it.
The "official zoning map" of the Town of Pierson was maintained by the Town Clerk. The Town Clerk's duties included maintaining personal control of the map. The Town Clerk, as a matter of policy, would not permit the map to leave the clerk's office unless accompanied by the Town Clerk. The map was locked in a safe in the clerk's office except when it was being viewed by someone in the presence of the clerk. This policy was in place in order to deter the possibility that someone might surreptitiously alter the map.
Robert Allen Keeth (Mr. Keeth), is employed as a planner for the Volusia County Metropolitan Planning
Organization (MPO). The Town of Pierson contributes to the cost of the operation of the MPO, and receives services from it.
As a planner for the MPO, Mr. Keeth works with the Town of Pierson and he has done so since at least the early 1990's. In accomplishing these duties, he works with the Town Council; the town attorney, Noah McKinnon; the Planning Commission; and other citizens of Pierson. He has known Ms. Jones since the early 1990's.
With substantial input from Mr. Keeth, the Town of Pierson adopted a comprehensive land use plan, entitled the Unified Land Development Regulations (ULDR). The Town Council adopted the ULDR on February 22, 1994. Since its adoption, the ULDR provides a regulatory scheme for storm water management, resource protection, signs, and zoning, among other things.
The ULDR also provides a method for amending the zoning scheme. Section 10.6.1 provides for the application process; Section 10.6.2 provides for Planning Commission review and for a public hearing; Section 10.6.3 provides for a Town Council review and a public hearing after due public notice; and Section 10.6.4 provides that amendments to zoning must be made consistent with the comprehensive plan by amending the plan if necessary to achieve that goal. The fee for amending a zoning classification of a parcel of land, during times pertinent, was set at $150.
By 1995, digitalized mapping became commonplace and Mr. Keeth suggested to the Town Council, during 1995, that the official zoning map of the Town of Pierson be replaced with a digital map. The council agreed that a digital map should be prepared and adopted. The council did not immediately act on this decision.
It was probable that there would be some changes in connection with the adoption of the digitalized map. This was because the "official town map" then in use was crudely drawn and might not be completely accurate in some respects and because ordinances had been passed affecting zoning which were not reflected on the "official zoning map." Moreover, when one changes an original map to a digital map it is unlikely to scale correctly or align correctly.
The process of preparing a digitalized map is not designed to bypass the processes set forth in Sections 10.6.1 through 10.6.4 of the ULDR. The creation of a new map through digitalization was described by Mr. Keeth as "replacing a map."
"Replacing a map" is a form of administrative rezoning. Administrative rezoning occurs when, after notice and hearing, an authorized governmental body changes the zoning of a parcel of property without receipt of an application from the owner. Section 166.041, Florida Statutes, addresses administrative rezoning.
On or about November 25, 1998, Mr. Keeth prepared a written proposal to the Town Council with regard to creating a digital zoning map. Shortly thereafter, subsequent to approval by the Town Council, Mr. Keeth began preparing a new zoning map for the Town of Pierson. It was Mr. Keeth's understanding that Samuel Bennett, Chairman of the Town Council, would work with him in preparing the new map.
Mr. Keeth and Ms. Jones had discussions with regard to the process involved with producing an accurate digitalized map. It was understood that it was possible that zoning changes might be affected which were not supported by any ordinance. This would not occur, in Mr. Keeth's opinion, until after public workshops and hearings.
Ms. Jones, during times pertinent, owned a parcel of property in the northeast quadrant of the Town of Pierson on Minshew Road. This property was zoned A-1 (agriculture). It was a ten-acre parcel and the sole improvement was a packing shed. The packing shed occupied a small part of the ten acre parcel.
Ms. Jones, during times pertinent, also owned a fence company in DeLand, Florida. She determined that she could reduce operational costs with regard to the fence company by moving the fencing materials associated with the business to the parcel on Minshew Road. Ms. Jones was paying rent in excess of
$1,600 per month to store the materials in DeLand. In order to store the materials on the Minshew road property it was necessary to change the zoning classification of the parcel to B-1 (general retail commercial development).
Mr. Keeth and Ms. Jones discussed the Minshew Road parcel and Ms. Jones revealed that she wanted to change the designation to B-1 (general retail commercial development), or to B-2 (heavy commercial and industrial development) or in any event, to a designation which, in Mr. Keeth's opinion, would allow the storage of fencing materials on the property.
Mr. Keeth said that it would be permissible for her to pencil in the change she desired. She penciled in this change on the "official zoning map" in March or April in 1999. The pencil change was accomplished immediately subsequent to a meeting of the Town Council.
The suggestion for change accomplished by Ms. Jones was not made surreptitiously. Ms. Jones told Mr. Keeth that she did not want it to appear that she was getting any special favors because of her position. Mr. Keeth told her he did not see a problem with the change and told her she could, "Pencil it in on the map," referring to the "official zoning map."
By May 7, 1999, Mr. Keeth had prepared an initial draft map and on that date he sent a memorandum to the Pierson Town Council suggesting they review the initial draft map at
Town Hall and forward comments to him by May 21, 1999. This map cannot be located. Another was created prior to November 29, 1999, which bore the date "November 29, 1999." On this map, Ms. Jones' parcel was labeled B-2 (heavy commercial and industrial development) rather than the B-1 which had been entered in pencil by Ms. Jones.
The only other person to make pencil marks on the map was Samuel Bennett, who was also a town councilperson.
Mr. Keeth considered these marks to be "suggestions" rather than changes. Mr. Keeth knew of no formal process, nor was the council aware of any formal process, for converting the "official zoning map" to a digital map. However, it is clear that Mr. Keeth believed that public workshops would be convened as part of the process and he believed that the Town Council would have to approve the final draft by ordinance. That he was correct in that belief is evidenced by the process which eventually resulted in the adoption of a final map on
September 12, 2000, using that process.
There were several draft maps produced during the period November 1999 through the winter and spring of 2000, but the drafts were not numbered or dated. As many as six draft maps were produced some of which never left Mr. Keeth's office. The maps were stored in the hard drive of his computer. On some
drafts the words "Ordinance number ## , Jan ## , 2000" appeared.
Changing a zoning classification from agriculture to business use does not automatically mean that the market value of the property is enhanced. However, because people do not ordinarily act contrary to their economic interest, it is found that the zoning suggestion made by Ms. Jones, would have represented value to her had the change been made. Moreover, as noted above, the suggestion, had it resulted in a change in zoning, would have allowed Ms. Jones to store materials at no cost instead of the $1,600 per month she was paying to store them in DeLand.
Many citizens of the Town of Pierson eventually learned of the penciled changes. As a result, rumor and innuendo with regard to the changes coursed through the community. During this period, Ms. Jones confronted Deborah LeBlanc, the Town Clerk, and accused her of being insubordinate and stated that, "Your memory doesn't have to be so good." This indicates that Ms. Jones was aware that she should not have made the marks on the map.
On April 14, 2000, Ms. Jones asked Mr. Keeth to remove her pencil marks and asked that the zoning for the Minshew Road property remain as it was before the "replacing a map" process
was initiated. As late as the July 11, 2000, Town Council meeting, the Minshew Road change was still displayed on the draft.
By late June or early July 2000, citizens were vigorously complaining to the Town Clerk and others about the Jones and Bennett changes. The issue became one of wide-spread interest in Pierson.
In early July, Mr. Keeth concluded that the matter was getting out of hand. On July 10, 2000, in a memorandum to the Town Council, he noted that there was a perception that the map was being amended without full disclosure and review.
Amendments were made on the draft maps as the result of other citizens making suggestions to Mr. Keeth. These amendments affected the Community Christian Assembly, Lois Taylor, Wilsey Bennett, and Shane Crosby. These suggestions were discussed at the July 11, 2000, Town Council meeting.
In the case of Wilsey Bennett the changes were made to conform to an existing use. In the case of the Community Christian Assembly, the property was subject to a special exception. Neither the Town Council, nor the unhappy and vocal citizens present at the council meeting of July 11, 2002, indicated that there was any question about the propriety of these changes.
There is no evidence in the record as to the circumstances of the amendments in the case of Taylor or Crosby. It cannot be determined if these amendments resulted in substantial changes or whether they were made to reflect existing uses or to indicate prior changes which should have been previously placed on the "official zoning map." By whatever process used, the changes were not made by merely penciling in the change and neither the Town Council, nor the unhappy and vocal citizens attending the council meeting of
July 11, 2002, indicated that there was any question about the propriety of these changes.
At a Town Council meeting on July 13, 2000, it was decided that Mr. Keeth would work with the Town Clerk to prepare another zoning map which represented the current state of zoning. This was to be done by looking at town records and the "official zoning map," without reference to the pencil marks entered with regard to Ms. Jones' or Mr. Bennett's property, and without reference to any other suggestions for change.
At a Town Council meeting on September 12, 2000, it was affirmatively decided that the digitalized zoning map would be accepted which reflected only changes supported by properly prepared ordinances. A final draft was approved by Ordinance Number 00-03.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter of and the parties to 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 issue final orders and public reports concerning violations of the Code of Ethics.
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). Therefore, the Commission, through its Advocate, has the burden of proving a violation of Section 112.313(6), Florida Statutes.
Because of the penalties provided by Section 112.317, Florida Statutes, the Commission, through its Advocate, must prove its case by clear and convincing evidence. Latham v. Florida Com'n on Ethics, 694 So. 2d 83 (Fla. 1st DCA 1997).
Section 112.313(6), Florida Statutes, provides as follows:
112.313 Standards of conduct for public officers, employees of agencies, and local government attorneys.--
* * *
(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.
Section 104.31, Florida Statutes, addresses elections and is not applicable to this case.
At the time the zoning suggestion was made, Ms. Jones was a public officer.
Section 112.312(9), Florida Statutes, defines "corruptly" as "done with a wrongful intent and for the purpose of obtaining . . . any benefit resulting from some act or omission of a public servant which is inconsistent with the proper performance of his public duties."
It is clear Ms. Jones penciled in a suggestion on the zoning map with a wrongful intent and for the purpose of obtaining a benefit. That she didn't receive a benefit and gave up the attempt is of no importance. The ethical breach occurred when she drew the line. Her actions in this regard were inconsistent with the proper performance of her public duties.
An analysis of the evidence of record reveals that Mr. Keeth misled Ms. Jones to some extent when he informed her
that she could make zoning changes by penciling in a suggestion. He further suggested, erroneously as events proved, that he did not see a problem with penciling in the change. The evidence is clear that Ms. Jones did not make the change in a secretive manner. When Ms. Jones realized what she had done she attempted to retract her change.
Despite the foregoing, her intent was to secure a benefit that was not available to the other citizens of Pierson. This is why the action was wrongful. Notice to the citizens of Pierson inviting them to pencil suggestions on the "official zoning map" was not provided. Indeed, the only other suggestions penciled on the map were made by or at the behest of Councilman Bennett. Perhaps when the matter was discussed at meetings, or workshops addressing the matter, other citizens could at that time make suggested changes. But as Mr. Keeth pointed out, a suggestion already appearing on the digitalized map, such as Ms. Jones', could slip through.
The motivation for this change was to obtain a zoning change for her parcel without having to pay a $150 fee per parcel and without having to participate in the process set forth in Sections 10.6.1 through 10.6.4 of the ULDR. The probability of the change actually being made cannot be measured but it is clear that it was at least theoretically possible and therefore no further inquiry need be made.
The actions of Ms. Jones were inconsistent with the proper performance of her public duties. As a councilperson it was her job to ensure the fair and equal treatment of all citizens and in this, she failed.
The Advocate has proven by clear and convincing evidence that Ms. Jones violated Subsection 112.313(6), Florida Statutes.
Though Ms. Jones committed an ethical breach, it is opined that this breach, while a transgression, is a minor transgression.
Because Ms. Jones is no longer a public official, the maximum penalty which may be imposed for the violation is a public censure and reprimand, or a civil penalty not to exceed
$10,000. Section 112.317(1)(a), Florida Statutes.
entered finding that Respondent, Bonnie A. Jones, violated Subsection 112.313(6) Florida Statutes. It is further recommended that the Commission recommend that she receive a reprimand.
DONE AND ENTERED this 7th day of January, 2003, in Tallahassee, Leon County, Florida.
HARRY L. HOOPER
Filed with the Clerk of the Division of Administrative Hearings this 7th day of January, 2003.
Basyle J. Tchividjian, Esquire
James H. Peterson, III, Esquire Office of the Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050
Philip C. Claypool, General Counsel Commission on Ethics
Virlindia Doss, Esquire Office of the Attorney General Department of Legal Affairs The Capitol, Plaza Level 01
Bonnie J. Williams, Executive Director Commission on Ethics
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.
