STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
IN RE: CARL SABATELLO, ) Case No. 08-0782EC
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, a public hearing was conducted in this case on November 13 and 14, 2008, by video teleconference at sites in West Palm Beach and Tallahassee, Florida, before Stuart
M. Lerner, a duly-designated Administrative Law Judge of the Division of Administrative Hearings (DOAH).
APPEARANCES
For Advocate: James H. Peterson, III, Esquire
Office of the Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050
For Respondent: Albert T. Gimbel, Esquire
R. Gary Early, Esquire Mark Herron, Esquire
Messer, Caparello & Self, P.A. 2618 Centennial Place
Post Office Box 15579 Tallahassee, Florida 32317
STATEMENT OF THE ISSUE
Whether Respondent violated Section 112.3143(3), Florida Statutes, by voting on September 7, 2000, September 21, 2000,
October 19, 2000, November 30, 2000, and December 21, 2000, as a member of the Palm Beach Gardens City Council on certain matters
affecting the Mirasol development project when Respondent's homebuilding company was engaged in discussions with the master developer of the project concerning the company's participation in the project, as alleged in the Order Finding Probable Cause, and, if so, what is the appropriate penalty.
PRELIMINARY STATEMENT
On April 25, 2007, the Commission on Ethics (Commission) issued an Order Finding Probable Cause in connection with a citizen complaint filed against Respondent. The Commission's order read, in pertinent part, as follows:
Based on the preliminary investigation of this complaint and on the recommendation of the Commission's Advocate, the Commission on Ethics finds that there is probable cause to believe that the Respondent, as a member of the City Council for the City of Palm Beach Gardens, violated Section 112.3143(3), Florida Statutes, by voting as a member of the Palm Beach Gardens City Council from September through November 2000 on matters affecting a residential development project while Respondent was negotiating for his company to participate in the project. The Commission further finds that there is probable cause to believe that the Respondent violated Section 112.3143(3), Florida Statutes, by voting as a member of the Palm Beach Gardens City Council to approve Resolution 131, 2000 regarding Mirasol Parcel 4, and also casting votes for five other resolutions--one affecting Mirasol Plat 1, and the others affecting Mirasol Parcels 1, 2, 3, and 5.
* * *
A formal notice of hearing on the matters on which probable cause has been found will be prepared and sent to the Respondent and the Advocate. . . .
Pursuant to Florida Administrative Code Rule 34-5.010, on February 14, 2008, the Commission referred the matter "by letter to the Division of Administrative Hearings for the appointment of an administrative law judge." The case was docketed as DOAH Case No. 08-0782EC and assigned to the undersigned.
On March 5, 2008, Respondent filed a Petition to Invalidate Agency Action Based on Unadopted Rule, requesting that the undersigned "conduct a de novo review of the Commission's probable cause finding, determine that such finding was based on an unadopted rule, conclude that such rule cannot be justified as provided in Section 120.57(1)(e), Florida Statutes, and dismiss the allegations of the Order Finding Probable Cause which are based on the unlawful unadopted rule." According to the argument made by Respondent in his petition, in finding probable cause, the Commission relied on two advisory opinions cited in the Advocate's Recommendation, CEO 87-86 (Fla.
Commission on Ethics December 10, 1987) and CEO 89-45 (Fla. Commission on Ethics September 14, 1989), which constitute "unadopted rules" that "unlawfully expand[] the scope of agency authority and [were] applied without due notice to [Respondent]."
On March 12, 2008, the Commission, through its Advocate, filed a Motion to Dismiss Respondent's Petition to Invalidate Agency Action Based on Unadopted Rule on the following grounds: "(1) The Commission's probable cause determinations are not subject to 120.57 proceedings; (2) Respondent's substantial interests have not been affected; (3) Respondent's Petition fails to provide specific text or description of the alleged unadopted rule; (4) The Advocate's Recommendation or arguments considered at the probable cause hearing are not unadopted rules; (5) Commission on Ethics Opinions (CEOs) are not unadopted rules; and (6) Orders finding probable cause are not unadopted rules." Oral argument on the Commission's motion was heard by telephone conference call on March 20, 2008.
On March 21, 2008, Respondent filed a Supplemental Petition to Invalidate Agency Action Based on Unadopted Rule, in which he stated the following:
Respondent, Carl Sabatello (Sabatello), through undersigned counsel, files this Supplemental Petition to Invalidate Agency Action Based on Unadopted Rule, in accordance with § 120.57(1)(e), Fla. Stat. After preliminary argument on the prior petition, Sabatello agreed to file this Supplemental Petition to clarify any ambiguity in the prior petition. In support thereof, Sabatello states:
Sabatello adopts his prior Petition to Invalidate Agency Action Based on Unadopted Rule as if fully set forth herein, with the
exception of paragraph 16 and the request for relief in the "Wherefore" clause.
Paragraph 16 of the prior Petition is supplemented to read as follows:
"16. The Commission's Order Finding Probable Cause is based on the Advocate's Recommendation and 'upon the rational[e] contained in CEOs 87-86 and 89-45.' Sabatello asserts that this rationale is an agency statement of general applicability that has not been adopted as a rule. The Commission's reliance on advisory opinions to conclude that probable cause exists to believe that Sabatello voted as [a] member of the Palm Beach Gardens [City] Council on matters relating to a development project while negotiating for his company to participate in that project, unlawfully expands the scope of agency authority and was applied without due notice to Sabatello. Further, Sabatello challenges the Commission's ability to take any final agency action based on advisory opinions that are neither codified by statute law nor statements of general applicability adopted as rules."
The "Wherefore" clause is amended to read as follows:
"WHEREFORE, Sabatello respectfully requests that the administrative law judge conduct the de novo review of the Commission's probable cause findings as contemplated in
§ 120.57(1)(e), Fla. Stat. to:
determine that such finding was in fact based on an unadopted rule as provided in
§ 120.57(1)(e)1., Fla. Stat.
conclude that such rule cannot be justified as provided in § 120.57(1)(e)2., Fla. Stat.; and alternatively,
dismiss the allegations of the Order Finding Probable Cause which are based on the unlawful unadopted rule."
On March 25, 2008, the Commission, through its Advocate, filed a Response to and Motion to Dismiss Respondent's Supplemental Petition to Invalidate Agency Action Based on Unadopted Rule.
On March 26, 2008, the undersigned issued an Order on Motion to Dismiss Respondent's Petition and Supplemental Petition to Invalidate Agency Action Based on Unadopted Rule, which provided, in pertinent part, as follows:
Section 120.57(1)(e), Florida Statutes, allows a non-agency party in a substantial interest proceeding before the Division of Administrative Hearings (DOAH) to challenge an agency statement as an "unadopted rule" (that is, a "rule," as defined in Section 120.52(15), Florida Statutes,[1] that has not been adopted in accordance with the rulemaking procedures set forth Chapter 120, Florida Statutes[2]) and to effectively prevent the agency from taking final action determining the substantial interests of that party based upon such statement if the non-agency party shows that the challenged statement is indeed an "unadopted rule" and the agency fails to demonstrate that the statement:
"a. Is within the powers, functions, and duties delegated by the Legislature or, if the agency is operating pursuant to authority derived from the State Constitution, is within that authority;
Does not enlarge, modify, or contravene the specific provisions of law implemented;
Is not vague, establishes adequate standards for agency decisions, or does not vest unbridled discretion in the agency;
Is not arbitrary or capricious. A rule is arbitrary if it is not supported by logic or the necessary facts; a rule is capricious if it is adopted without thought or reason or is irrational;
Is not being applied to the substantially affected party without due notice; and
Does not impose excessive regulatory costs on the regulated person, county, or city."
§ 120.57(1)(e)1. and 2., Fla. Stat.[3] The DOAH administrative law judge assigned to hear the case must address any such Section 120.57(1)(e) challenge in the recommended order the judge issues at the conclusion of the DOAH proceeding and sends to the agency for its consideration. It is the agency which has been vested with the statutory authority to decide the matter with administrative finality; however "the administrative law judge's determination regarding the unadopted rule shall not be rejected by the agency unless the agency first determines from a review of the complete record, and states with particularity in the order, that such determination is clearly erroneous or does not comply with essential requirements of law." § 120.57(1)(e)3., Fla. Stat.
Although a successful Section 120.57(1)(e) challenge arrests an agency's ability to rely on the challenged "unadopted rule" in taking final agency action determining the substantial interests of the challenger, it does not serve to render null and void any preliminary action the agency may have taken (during the investigative stage of the process) based on the "unadopted rule." The
constraints Section 120.57(1)(e) imposes on an agency's reliance on "unadopted rules" apply only to "agency action that determines the substantial interests of a party," not to determinations made by the agency (such as the Commission's probable cause determination in the instant case) that are merely investigatory and preliminary to such "agency action." See Gopman v. Department of Education, 908 So. 2d 1118, 1122 (Fla.
1st DCA 2005)(quoting from Nelson v. Department of Agriculture and Consumer Services, 424 So. 2d 860, 862 (Fla. 1st DCA 1982))("'[C]onceptually an agency's free- form action . . . is, with APA remedies timely requested and as yet unfulfilled, no agency action at all.'"); Florida League of Cities, Inc. v. Administration Commission,
586 So. 2d 397, 413 (Fla. 1st DCA 1991)("Until proceedings are had satisfying section 120.57, or an opportunity for them is clearly offered and waived, there can be no agency action affecting the substantial interests of a person."); Florida Department of Transportation v. J. W. C. Co., 396 So. 2d 778, 785 (Fla. 1st DCA 1981)("An agency's free-form action is regarded as preliminary, irrespective of its tenor."); Capeletti Brothers, Inc. v. Department of Transportation, 362 So. 2d 346, 348, n. 1 (Fla. 1st DCA 1978)(quoting from L. Harold Levinson, Elements of the Administrative Process, 26 AM. U. L. REV. 872, 880 (1977))("'Free-form' proceedings are not subject to legal requirements with regard to any of the procedural elements, although legal requirements may exist with regard to nonprocedural elements. In free-form proceedings the agency is therefore at liberty to adopt any procedure it wishes, or no procedure at all."); § 120.57(5), Fla. Stat. ("This section [Section 120.57, of which Section 120.57(1)(e) is a part] does not apply to agency investigations preliminary to agency action."); Fla. Admin. Code R. 28-106.101 ("This chapter shall apply in all proceedings in which the
substantial interests of a party are determined by an agency This
chapter applies to all proceedings under Chapter 120 except as follows: (2)
Agency investigations or determinations of probable cause preliminary to agency
action; . . ."); and Fla. Admin. Code R. 34- 5.006(5)("The probable cause determination [of the Commission] is the conclusion of the preliminary investigation. ").
In view of the foregoing, it is hereby ORDERED:
To the extent that Respondent in his Petition to Invalidate Agency Action Based on Unadopted Rule, as supplemented and modified by his March 21, 2008, pleading, is requesting the undersigned to enter a final order dismissing the Commission's April 25, 2007, Order Finding Probable Cause, the request is denied.
In the recommended order that he will issue following the final hearing in the instant case, the undersigned will address whether CEO 87-86 and CEO 89-45 (to the extent they are excerpted and referred to in the Advocate's Recommendation) are "unadopted rules," as that term is used in Section 120.57(1)(e), Florida Statutes, that "unlawfully expand[] the scope of agency authority and [are being] applied without due notice to [Respondent]" and will further discuss whether the Commission may rely on the pertinent portions of these CEOs in taking final agency action on the charges in its April 25, 2007, Order Finding Probable Cause in this matter.
On April 10, 2008, the parties in DOAH Case 08-1567EC filed a motion requesting that that case be reassigned to the same administrative law judge assigned to hear the instant case (DOAH Case No. 08-0782EC). A hearing on the motion was conducted by
the undersigned on April 14, 2008, by telephone conference call, during which the parties in both DOAH Case No. 08-0782EC and the instant case expressed their agreement that, not only should the cases be heard by the same administrative law judge, they should be consolidated for purposes of hearing. On that same date, upon being reassigned DOAH Case 08-1567EC, the undersigned issued an order consolidating that case with the instant case for purposes of hearing and indicating that "[s]eparate recommended orders will be issued in each case, however."
On November 12, 2008, the parties filed a Joint Prehearing Stipulation. It set forth the following "facts which [were] admitted and [would] require no proof at hearing" (Stipulations
of Fact):
Sabatello served as a member of the Palm Beach Gardens City Council from March 1997 until March 2004.
Sabatello is subject to the requirements of Part III, Chapter 112, Florida Statutes, the Code of Ethics for public officers and employees, for his acts and omissions during his tenure as a member of the Palm Beach Gardens City Council.
During the same period Sabatello served as a member of the Palm Beach Gardens City Council, Sabatello was a twenty-five percent owner and president of several companies involved in the homebuilding industry and referred to as the "Sabatello Companies."
The Mirasol Project (formerly known as Golf Digest), is a planned community development [PCD] consisting of 2,304 acres
with plans for 2,145 dwelling units, a fire station, school site, park, golf courses, and commercial development. The planned community development for the Mirasol Project was first approved by the Palm Beach Gardens City Council in 1998. Since that time numerous matters relating to the Mirasol Project have come before the City Council for approval.
Sometime prior to September 7, 2000, Craig Perna, a representative of Taylor Woodrow Communities ("Taylor Woodrow"), the master developer of the Mirasol [P]roject, approached several builders in the City of Palm Beach Gardens area regarding the Mirasol Project. Sabatello was one of the several builders contacted during this time frame by Taylor Woodrow regarding the possibility of becoming a builder in the Mirasol [P]roject.
During those discussions, Taylor Woodrow informed Sabatello that a final decision on builders would not be made until early 2001.
From September 7, 2000, through November 30, 2000, Sabatello voted in his
official capacity on five separate occasions for resolutions involving the Mirasol [P]roject. Those votes included:
A September 7th vote for Resolution 71, 2000, approving the site plan[s] for Mirasol Parcels 1 through 5 (199 home sites);
A September 21st vote for Resolution 72, 2000, approving the site plans for Mirasol Parcels E, F, and G (141 home sites);
A September 21st vote for Resolution 73, 2000, approving the site plans for Parcels H and I (135 home sites);
An October 19th vote for Resolution 92, 2000, approving the site plans for the Mirasol fire and policing stations; and
A November 30th vote for Resolution 115, 2000, approving Mirasol Plat One.
At some time during the month of November 2000, and as a result of the conversations Taylor Woodrow was having with SD IV [Sabatello Development Corporation IV, Inc., one of the "Sabatello Companies"] , Sabatello informed Le[o]nard Rubin, the Palm Beach Garden[s] City Attorney, that SD IV had been contacted by Taylor Woodrow regarding its being considered as a possible builder in Mirasol.
At the time, Sabatello asked the City Attorney's office to provide a legal opinion as to Sabatello's obligation to abstain from voting in his official capacity on matters relating to Mirasol that come before the City Council.
Thereafter, the City Attorney prepared a memorandum to Sabatello dated December 5, 2000.
On December 21, 2000, prior to Taylor Woodrow['s] awarding the contract to SD IV as a builder in Mirasol, Sabatello voted on five resolutions involving the Mirasol [P]roject. Those votes included:
A vote for Resolution 127, 2000, approving Mirasol Plat - Spine Road (a.k.a. Plat Two);
A vote for Resolution 128, 2000, approving Mirasol Plat Parcel 1;
A vote for Resolution 129, 2000 approving Mirasol Plat Parcel 2;
A vote for Resolution 130, 2000, approving Mirasol Plat Parcel 3;
A vote for Resolution 131, 2000, approving Mirasol Plat Parcel 4; and
A vote for Resolution 132, 2000 approving Mirasol Plat Parcel 5.
On December 18, 2000, an individual representative of SD IV other than Sabatello, filed documents with the City of Palm Beach Gardens Planning & Zoning Division, regarding its plans to build model homes in Mirasol Parcel 4.
In January 2001, Taylor Woodrow selected SD IV as a builder in the Mirasol Project.
In February 2001, Taylor Woodrow and SD IV signed the first written contracts announcing that SD IV was selected to build homes in Mirasol Parcel 4.
On February 14, 2001, SD IV purchased four lots in Mirasol Parcel 4.
Two days later, February 16, 2001, the City issued building permits for the four lots referenced in paragraph 15, above.
On March 5, 2001, SD IV purchased the remaining 42 lots in Mirasol Parcel 4.
The following were listed in the parties' Joint Prehearing Stipulation as the "issues of law which remain[ed] for [the] administrative law judge's determination":
Whether Respondent violated Section 112.3143(3), Florida Statutes, by voting as a member of the Palm Beach Gardens City Council from September through November 2000 on matters affecting a residential development while Respondent was negotiating for his company to participate in the project, and if so, what is the appropriate penalty. (Commission's Position)
Whether Respondent violated Section 112.3143(3), Florida Statutes, by voting as a member of the Palm Beach Gardens City Council to approve Resolution 131, 2000 regarding Mirasol Parcel 4, and also by casting votes for five other resolutions -- one affecting Mirasol Plat 1, and the others affecting Mirasol Parcels 1, 2, 3, and 5, and if so, what is the appropriate penalty. (Commission's Position)
Whether a finding by the Commission, under the facts, circumstances, and evidence adduced at the final hearing in this case, that one or more of Respondent's votes constituted a violation of Section 112.3143(3), Florida Statutes, would be an action against Respondent based on an unadopted rule. (Commission's position)
Whether Sabatello violated Section 112.3143(3), Florida Statutes, by voting as a member of the Palm Beach Gardens City Council on September 7, 2000, September 21, 2000, October 19, 2000 and November 30, 2000 on matters affecting a residential development project from which Sabatello derived a special private gain or loss.. (Sabatello's position)
Whether Sabatello violated Section 112.3143(3), Florida Statutes, by voting as a member of the Palm Beach Gardens City Council on December 21, 2000 on matters affecting the Mirasol residential development project, including one vote affecting Parcel 4, from which Sabatello derived a special private gain or loss.. (Sabatello's position)
Whether the Commission's action against Sabatello was based on the application of an unadopted rule. (Sabatello's position)
Whether reliance on the advice of counsel given prior to a vote constitutes a defense to a violation of the Florida Code of Ethics. (Sabatello's position)
On the same date that the parties filed their Joint Prehearing Stipulation, Respondent filed the Advocate's Response to Respondent's First set of Interrogatories, which the Advocate
had "submitted" to Respondent on April 3, 2008. The Advocate's responses to Interrogatories 8 through 11 were as follows:
Interrogatory 8: As to each of the votes alleged to have been taken by Respondent in violation of § 112.3143(3), Fla. Stat., identify with particularity, the "special private gain or loss" that inured to Respondent.
Response: Discovery is ongoing. There may be other votes, or interests affected by the votes at issue that inured to Respondent's special private gain or loss, that have not yet been identified. However, at this stage of the proceeding, the following response is given:
A September 7th vote for Resolution 71, 2000, approving the site plan[s] for
Mirasol Parcels 1 through 5 (199 home sites);
A September 21, 2000 vote for Resolution 72, 2000, approving the site plans for Mirasol Parcels E, F, and G (141 home sites);
A September 21, 2000 vote for Resolution 73, 2000, approving the site plans for Parcels H and I (135 home sites);
An October 19, 2000 vote for Resolution 92, 2000, approving the site plans for the Mirasol fire and policing stations; and,
A November 30, 2000 vote for Resolution 115, 2000, approving Mirasol Plat One.
A vote on December 21, 2000, for Resolution 127, 2000, approving Mirasol Plat- Spine Road (a.k.a. Plat Two);
A vote on December 21, 2000, for Resolution 128, 2000, approving Mirasol Plat Parcel 1;
A vote on December 21, 2000, for Resolution 129, 2000, approving Mirasol Plat Parcel 2;
A vote on December 21, 2000, for Resolution 130, 2000, approving Mirasol Plat Parcel 3;
A vote on December 21, 2000, for Resolution 131, 2000, approving Mirasol Plat Parcel 4; and
A vote on December 21, 2000, for Resolution 132, 2000, approving Mirasol Plat Parcel 5;
Special Private Gain or Loss as to the above votes are as follows:
All of the votes (a through k) benefited the Mirasol [P]roject at a time that Respondent and/or his companies intended on participating in the Mirasol [P]roject as an owner and builder. The benefits to the project include required steps for the Mirasol [P]roject (site plan, road, facilities, plat and related approvals), changes enhancing the project, variances allowing greater flexibility in use of the proposed lots for the project, increasing the value of the project, and granting other enhancements or requirements for the Mirasol [P]roject's success. As an intended participant in the project, these benefits were a special private gain which inured to Respondent and/or his companies as well.
In addition for the same reasons as stated in 1), above, all of the votes (a through k) benefited the master developer, Taylor Woodrow, at a time that Respondent and/or his companies were negotiating to participate as an owner/builder in the Mirasol [P]roject. The fact of those negotiations concurrent with votes benefiting Taylor Woodrow with regard to the Mirasol Project placed Respondent and his companies in a unique position to benefit in the negotiations by virtue of Respondent's votes, and therefore were a special private gain to Respondent and/or his companies.
The site plans identified in paragraph a) above, contained variances that corresponded with and benefited, and/or were required for, designs and plans for residences Respondent and/or his companies intended to build in the Mirasol [P]roject. Th[e] fact the variances corresponded with Respondent['s] and/or his companies' intended designs and plans also enhanced their chances of becoming selected to participate in the Mirasol [P]roject, and
therefore the votes for those variances and site plan approvals inured to the special private gain [of] Respondent and/or his companies.
The variances and approvals as [to] Parcel 4 granted in the vote identified in paragraph a), above, also increased the value of property that Respondent and/or his companies intended to buy, thereby inuring to their special private gain.
On December 22, 2000, the very next day after the votes identified in paragraph f) through k), above, Sabatello Development Corporation IV, filed documents with the City (prepared before the vote) to obtain building permits for model homes in Mirasol Parcel 4, on sites Respondent and/or his company intended on purchasing and building. The vote identified in j), above, was a necessary step in the process of obtaining approvals for Respondent's intended plans to build in Mirasol Parcel 4 and Respondent was therefore in a unique position and obtained a special private gain from that vote. In less than two and a half months after the December 21, 2000 vote, Respondent and/or his company, Sabatello Development Corporation IV, had purchased all 44 [sic] lots in Mirasol Parcel 4, which had the approvals from the City for which Respondent had voted.
Interrogatory 9: As to each of the votes alleged to have been taken by Respondent in violation of § 112.3143(3), Fla. Stat., identify with particularity, the "special private gain or loss" that inured to any principal by whom Respondent was retained.
Response: Discovery is ongoing. There may be other votes, or interests affected by the votes at issue that inured to one or more of Respondent's principal's "special private gain or loss" that have not yet been identified. However, at this stage of the proceeding, the following response is given:
Respondent's principal identified at this stage of the proceeding was either Sabatello Development Corporation IV or other Sabatello companies that participated in the Mirasol [P]roject. The special private gain or loss
is the same as identified in the response to Interrogatory 8, above.
Interrogatory 10: As to each of the votes alleged to have been taken by Respondent in violation of § 112.3143(3), Fla. Stat., identify with particularity, the "special private gain or loss" that inured to a parent organization or subsidiary of a corporate principal by whom Respondent was retained.
Response: Discovery is ongoing. At this stage, the corporate structure of the Sabatello companies is not known, but if a Sabatello company that participated in the Mirasol [P]roject had a parent organization or subsidiary, the special private gain to that parent or subsidiary would be the same as identified in the response to Interrogatory number 8.
Interrogatory 11: As to each of the votes alleged to have been taken by Respondent in violation of § 112.3143(3), Fla. Stat., identify with particularity, the "special private gain or loss" that inured to a relative or business associate of the Respondent.
Response: Discovery is ongoing. While there has been preliminary evidence indicating that Respondent's brothers had interests in the Sabatello companies, evidence required to answer this Interrogatory need[s] further development. In any event, the special private gain or loss would be that identified in the response to Interrogatory number 8.
As noted above, the public hearing in this case was held on November 13 and 14, 2008.4 Five witnesses testified at hearing: Eric Jablin; Joseph Russo; Ronald Farris; Phillip Claypool, Esquire; and Respondent. In addition to these five witnesses' testimony, 79 exhibits (Joint Exhibits 1 through 62, 64 through
73, 75 through 77, and 80 through 83) were offered and received into evidence. These exhibits included the depositions of Leonard Rubin, Esquire (Joint Exhibit 77), Craig Perna (Joint
Exhibit 81), and Jack Hanson (Joint Exhibit 82), which were admitted in lieu of the deponents' live testimony.
At the close of the taking of evidence on November 14, 2008, the undersigned established a February 2, 2009, deadline for the filing of proposed recommended orders.
The hearing Transcript (consisting of three volumes) was filed with DOAH on December 18, 2008.
On January 9, 2009, the parties filed a motion jointly requesting a two-week extension of the deadline for filing proposed recommended orders. By order issued January 12, 2009, the motion was granted, and the filing deadline was extended to February 16, 2009.
The parties timely filed their Proposed Recommended Orders on February 16, 2009.
In paragraph 91 of his Proposed Recommended Order, the Advocate stated the following:
In addition, Respondent and Craig Perna's suggestion that SD IV was acting as agent for Taylor Woodrow at the time of the December 21, 2002 votes, provides an arguable basis [for finding] that Taylor Woodrow was a "principal" for purposes [of] the voting conflicts statute. While the undertakings in that relationship would certainly suggest that SD IV's [Respondent's company's] selection as a builder was not remote and speculative, given the timing of the revelation that SD IV was acting as Taylor Woodrow's agent, and the lack of development of other facts and circumstances regarding that alleged principal/agent relationship, the Commission shall not pursue that argument in these proceedings.
FINDINGS OF FACT
Each of the "Sabatello companies" referred to in the parties' Stipulation of Fact 3 was wholly owned by Respondent and his brothers Paul, Theodore, and Michael Sabatello, with each of the four brothers owning an equal (25%) share of the company.
Of these companies, only one, Sabatello Development Corporation IV (SD IV) was involved in the Mirasol Project.
SD IV has been in continuous existence since its formation in or around the 1980's. It is a Subchapter S corporation. As such, its profits are passed through to its four shareholders, Respondent and his three business associate- brothers, in equal amounts.
As president of SD IV, Respondent "oversees all [of its] functions."
Craig Perna, the Taylor Woodrow "representative" mentioned in the parties' Stipulation of Fact 5, had "overall responsibility for every aspect of the [Mirasol] development" project, including the "selection of builders."
The builder selection process started with Mr. Perna getting the names of "prominent builders in the Palm Beach Gardens market" having "excellent reputation[s]" and then contacting them to inquire as to their interest in participating in the Mirasol Project. Respondent was among those Mr. Perna contacted. He was contacted (by telephone) in mid-May of 2000. At that time, he advised Mr. Perna he was "very interested" in having his company considered for selection as a builder in Mirasol.
As a member of the Palm Beach Gardens City Council, Respondent had reviewed documents submitted by Taylor Woodrow to obtain PCD approval for the Mirasol Project. As a result, he was familiar with the project and recognized its potential.
At the time, residential "golf developments," like the Mirasol Project, sold out quickly and were "very profitable." Builders competed vigorously for the relatively limited opportunities that were available to build in these developments. Having the upper hand over builders because of this competitive landscape, Taylor Woodrow, as the master developer of the Mirasol Project, did not have to engage in "give [and] take with any builder" concerning contractual matters. As Mr. Perna put it in his deposition testimony, "You either wanted to participate or you didn't under my terms, period, the end."
Respondent's company, SD IV, was one of at least ten or
builders vying to be selected to participate in the Mirasol Project.
Over a period of approximately eight months (from mid- May 2000, to mid-January 2001), Taylor Woodrow requested and obtained from SD IV and from the other would-be participants in the project (Other Builders) information and documents in order to evaluate these builders' qualifications for selection.
The requests directed to SD IV were extensive and concerned such matters as the company's financials, products, pricing, form contracts, sales operations, customer service department, past accomplishments, current capacity, and "appetite for future work." Taylor Woodrow also wanted to see floor plans and architectural drawings.
These requests were made both in writing and verbally.
Wanting to maximize its chances of being selected, SD IV provided Taylor Woodrow with "whatever [was] ask[ed] for."
Initially, Respondent was SD IV's "sole contact person" in its dealings with Taylor Woodrow. In this capacity, he engaged in "numerous discussions" with Taylor Woodrow representatives regarding SD IV's possible participation in the Mirasol Project.
On or about May 17, 2000, Taylor Woodrow sent to Respondent and the Other Builders copies of "artist's drawings
of potential elevations of homes that would be built in Mirasol," accompanied by a cover letter requesting feedback from the would-be project participants in the form of "more specific" drawings, consistent with the renderings, showing what they would build if selected. These "more specific" drawings were to be reviewed by the Mirasol Architectural Review Committee to determine whether or not they were acceptable.
In a conversation that Respondent had with Mr. Perna following his receipt of this May 17, 2000, correspondence, Respondent stated, in reference to the elevations depicted in the "artist's drawings" Taylor Woodrow had provided, that "they were within the basic parameters" of what SD IV intended to build if selected.
SD IV subsequently prepared and submitted to Taylor Woodrow the "more specific" drawings that had been requested. "[M]ost of the drawings" were "very similar" to drawings that SD IV had used in other developments.
The first vote that Respondent allegedly unlawfully cast was on Resolution 71, 2000 at the Palm Beach Gardens City Council September 7, 2000, meeting.
As the summary statement on its first page reflects, Resolution 71, 2000 was:
A resolution of the City Council of the City of Palm Beach Gardens, Florida, providing for approval of a site plan of development
for Parcels 1 through 5 with a total of 114 zero lot line single-family home lots and 85 single-family custom home lots within the Golf Digest (Mirasol) PCD, located along PGA Boulevard and as more particularly described herein; providing for five waivers to allow for reductions in the side interior setback, an increase in lot coverage, the placement of pools, screen enclosures and accessory structures within the side interior and rear setbacks, and a reduction in the minimum lot width requirement; providing for conditions of approval; and providing for an effective date.
The minutes of the September 7, 2000, Palm Beach Gardens City Council meeting reflect that Respondent and City Attorney Rubin, among others, were present and that, with respect to Resolution 71, 2000, in pertinent part, the following occurred:
Resolution 71, 2000- Principal
Planner Jim Norquest presented the project. The City Council was assured by the petitioner [Taylor Woodrow] that an architectural committee with proper requirements had been established. Ann Booth, Urban Design Studio, agent for the petitioner, described the project.
Landscaping themes for different parcels were described by the landscape architect. Councilman Clark made a motion to approve Resolution 71, 2000. Vice Mayor Jablin seconded the motion, which carried by unanimous 5-0 vote.
The next allegedly unlawful votes that Respondent cast were on Resolutions 72, 2000 and 73, 2000 at the Palm Beach Gardens City Council September 21, 2000, meeting.
As the summary statement on its first page reflects, Resolution 72, 2000 was:
A resolution of the City Council of the City of Palm Beach Gardens, Florida, providing for approval of a site plan of development for Parcels E, F and G with 35, 39, and 67 zero lot line single-family home lots within the Golf Digest (Mirasol) PCD, located along PGA Boulevard and as more particularly described herein; providing for five waivers to allow for reductions in the side interior setback, an increase in lot coverage, the placement of pools, screen enclosures and accessory structures within the side interior and rear setbacks, and a reduction in the minimum lot width requirement; providing for conditions of approval; and providing for an effective date.
As the summary statement on its first page reflects, Resolution 73, 2000 was:
A resolution of the City Council of the City of Palm Beach Gardens, Florida, providing for approval of a site plan of development for Parcels H and I with 56 single-family custom home lots and 79 zero lot line
single-family home lots within the Golf Digest (Mirasol) PCD, located along PGA Boulevard and as more particularly described herein; providing for six waivers to allow for reductions in the side interior setback, street side setback, an increase in lot coverage, a reduction of lot width, and the placement of pools, screen enclosures, and accessory structures within the side interior and rear setbacks; providing for conditions of approval; and providing for an effective date.
The minutes of the September 21, 2000, Palm Beach Gardens City Council meeting reflect that Respondent, among
others, was present and that, with respect to Resolution 72, 2000 and Resolution 73, 2000, in pertinent part, the following occurred:
Resolution 72, 2000- Principal
Planner Jim Norquest presented the project. Ann Booth, Urban Design Studio, agent for the petitioner [Taylor Woodrow], described recreational open space proposed by the petitioner. Petitioner was requested to include in the design a tot lot, pool, two tennis courts, and a building, for which staff was directed to draft language for a condition of approval. The language was read into the record during consideration of Resolution 73, 2000: The recreation center south of parcel F shall include a swimming pool, two tennis courts, a tot lot, and a recreation building unless different amenities are approved by City Council at site plan review. Councilman Clark made a motion to approve Resolution 72, 2000 with the additional condition as read into the record by petitioner. Vice Mayor Jablin seconded the motion, which carried by unanimous 5-0 vote.
Resolution 73, 2000- Principal
Planner Jim Norquest presented the project. Ann Booth, Urban Design Studio, agent for the petitioner [Taylor Woodrow], described the proposed homes and landscaping.
Petitioner agreed to provide a gazebo or tot lot on Parcel H, and to allow continued access to the open space at the entrances by residents on both sides of the road.
Petitioner and staff agreed to the following condition of approval, which was read into the record by petitioner: The recreation center south of parcel F shall include a swimming pool, two tennis courts, a tot lot, and a recreation building unless different amenities are approved by City Council at site plan review. Councilman Clark made a motion to approve Resolution 73, 2000 with
the additional condition as read into the record by petitioner and with the understanding placed on the record by petitioner regarding the open space at the entrances to parcels H and I. Vice Mayor Jablin seconded the motion, which carried by unanimous 5-0 vote.
The "waivers" that were granted by Resolutions
71, 2000, 72, 2000, and 73, 2000 were from the requirements of the Palm Beach Gardens Code that Taylor Woodrow, or whichever builder(s) it subsequently selected to build on the affected parcels, would otherwise have to meet.
The next vote of Respondent's that has been called into question is his vote at the October 19, 2000, Palm Beach Gardens City Council meeting on Resolution 92, 2000.
As the summary statement on its first page reflects, Resolution 92, 2000 was:
A resolution of the City Council of the City of Palm Beach Gardens, Florida, providing for approval of a site plan for a[n] 8,046 square foot fire rescue and police substation within the Golf Digest (Mirasol) PCD, located 1/4 mile north of PGA Boulevard on the east side of Jog Road and as more particularly described herein; providing for waivers; providing for conditions of approval; and providing for an effective date.
This "site [had to] be completed and dedicated prior to the issuance of [any] certificate of occupancy for any dwelling units in the Golf Digest [Mirasol] PCD" or the "opening of a golf course" in the PCD.
The minutes of the October 19, 2000, Palm Beach Gardens City Council meeting reflect that Respondent, among others, was present and that, with respect to Resolution 92, 2000, in pertinent part, the following occurred:
Resolution 92, 2000- . . . . Senior Planner Ed Tombari reviewed the petition. A representative of Gee & Jenson answered questions regarding the project and Ann Booth, Urban Design Studio, spoke on behalf of the petitioner [Taylor Woodrow].
Councilman Clark made a motion to approve Resolution 92, 2000. Vice Mayor Jablin seconded the motion, which carried by unanimous 3-0 vote.
On November 3, 2000, Elaine Appleyard, a legal assistant with Taylor Woodrow, sent the following e-mail to Taylor Woodrow's Aaron Chorost, who was the chief financial officer for the Mirasol Project:
Good morning Aaron - we're finalizing a redline on the Builder Agreement and need two items clarified:
Is the intention to have just one closing on all of the lots?
Will this particular builder be building anywhere else on the property other than Parcel 4?
Mr. Chorost responded within the half hour by sending Ms. Appleyard the following e-mail:
I cannot guarantee that Sabatello will purchase beyond parcel 4. It is likely that he will look to do all the 60' wide lots which means he could also purchase parcels 7 and 16 in the future. Likewise for Kenco, buying parcel 5 plus in the future could be
doing parcel 12 also. Kenco may also be a builder in the custom builder program but not Sabatello.
Yes, there will be only one closing for each parcel containing all the lots in the parcel.
These were "completely internal" e-mail communications to which no one outside of Taylor Woodrow, including Respondent and the Other Builders, were privy.
No decision had yet been made as to who would be building on Mirasol Parcel 4.6 Taylor Woodrow was even seriously considering keeping the parcel so that it could build on the property itself.
At the November 30, 2000, Palm Beach Gardens City Council meeting, Respondent and the other four members of the City Council present voted in favor of Resolution 115, 2000, a consent agenda item which "approv[ed] the Golf Digest-Jog Road (AKA Mirasol Plat One) Plat." The land that was the subject of this resolution had to be platted and dedicated to Palm Beach County before any building permits could be issued for residential construction in Mirasol.
On December 4, 2000, Mr. Perna sent Respondent a memorandum requesting certain information that would be needed in the event SD IV was selected to build on Mirasol Parcel 4. The memorandum read as follows:
Please forward the list of your Officers and Directors for your parcel immediately.
Sabatello - Parcel 4 ("Paradisio")
We will be preparing the documents this week for your review.
Respondent subsequently provided the requested information.
The December 5, 2000, memorandum authored by City Attorney Rubin, which is referenced in the parties' Stipulation of Fact 10, was provided to all members of the Palm Beach Gardens City Council, including Respondent, as well as to the Interim City Manager. The memorandum read as follows:
You have indicated that the Sabatello Companies, of which you are a principal, is currently in negotiations with the developers of the Mirasol Planned Community District ("PCD") to become a builder of homes within that community.[7] Your activities as a builder would be limited to specific parcels or pods within the PCD. You asked this office to provide a legal opinion as to your obligation to abstain from voting in your official capacity on
matters relating to Mirasol that come before the City Council.
Voting conflicts for members of the City Council are governed by section 112.3143, Florida Statutes. Subsection (3)(a) provides that a municipal officer shall not vote in an official capacity on any measure that "would inure to the special gain" of the officer, a principal by whom the officer is retained, or a relative or business associate of the officer. According to the state Ethics Commission, the determination of whether the officer receives a special private gain is based upon the size of the
class of persons affected by the vote at issue.
The Mirasol PCD encompasses a variety of residential, commercial, recreational and community uses. The residential uses range from low density single family homes to high density multi-family apartments. It is anticipated that your company's activities will be limited to the construction of single family dwellings within a specific, identifiable parcel for which a site plan has already been approved. Because of this limited involvement, there does not appear to be any requirement that you abstain from every vote relating to the approval of plats, parcels and site plans within the entire Mirasol PCD. See CEO 85-62 (city council member not prohibited from voting on rezoning of property within a large redevelopment area where member's corporation owns a parcel of land within the same area). By way of example, the City Council's approval of the site plan for the fire station or the plat for Jog Road in no way inures to your or your company's special private gain. You would, however, be required to abstain from any additional votes relating to the specific parcels or pods within the community in which your company possesses or acquires an interest by virtue of a contractual relationship with the master developer.
Where a conflict of interest exists, you are required to state the nature of your interest prior to the vote and file a voting conflict memorandum with the City Clerk, within 15 days. The existence of a voting conflict does not necessarily require you to abstain from all discussion relating to the matter (although you are free to do so). If you plan to participate in discussion of a matter in which you know you have a conflict, you must file a written conflict memorandum before the public meeting.
You have also expressed concern that upon learning that your company will be building homes within Mirasol, members of the public may perceive a conflict of interest in all matters relating to Mirasol. To avoid the appearance of impropriety, it would be appropriate to make the following disclos[ure] prior to any vote:
"While it is anticipated that the Sabatello Companies will be building homes within Mirasol, the matter before the City Council does not concern the areas in which such construction will take place and is wholly unrelated to any interest held by me or my corporations."
Should you have any questions or be in need of additional information, please do not hesitate to contact this office.
In a December 8, 2000, letter to Respondent's brother and business associate, Paul Sabatello, Taylor Woodrow's James Harvey, the Mirasol Architectural Review Committee project development manager, wrote:
Please accept this letter as our approval of the following items that will require administrative modification of the City of Palm Beach Gardens Parcel Four site plan:
We have no objection to modifying the side yard setbacks to 3'1" and 6'11" with a minimum of 10' separation between buildings. All other approved setbacks must be met.
We have no objection to moving the zero side of the lot (now 3'1" per your request) on lots 10 thru 38 to the opposite lot line.
We have no objection to building the models on lots #40, #39, #7, #8, and #9.
We have no objection to modifying the roof tile, body and trim, and paver colors to those submitted with your A.R.C. submission dated November 22, 2000.
If you should need any further information feel free to give me a call.
Those of the Other Builders "being considered for [Mirasol] Parcel 4" were sent similar letters advising them of the Mirasol Architectural Review Committee's action on the plans and drawings that they had submitted.
On December 11, 2000, Ms. Appleyard sent the following e-mail to Mr. Perna:
Attached are redlined and clean copies of the most recent versions of the Parcel Builder Agr. and Brokerage Agr. Marc asks that you stamp these draft before sending to Carl. [T]hanks.
Although it was Mr. Perna's intention that copies of these "draft" agreements be sent to all those "in the mix to become a builder" in Mirasol, including Respondent's company, for their review and comments, Respondent never received any agreement marked "draft" from Taylor Woodrow.
Respondent, however, did receive the following letter, dated December 18, 2000, from Mr. Perna:
Please find attached the matrix regarding your price lot in Paradisio[9] with
corresponding square footage. You can see that it will be necessary to reduce your 2 story to 4,000 square feet in order to fit into the overall structure. You can split up your premiums but standard options and upgrades must stay within the box.
Please do not hesitate to give me a call if you have any questions.
The "Mirasol Housing Price Matrix," a copy of which was enclosed with the letter, provided that the "base lot price charged to [the selected] builder" for the 46 lots in Mirasol Parcel 4 would be $139,000 per lot. "That would be the deal" for whoever was selected to build on that parcel. There was no room for negotiation.
Copies of the "Mirasol Housing Price Matrix" were also sent to the Other Builders.
Taylor Woodrow advised SD IV, as well as the Other Builders, that, if selected, they would be expected to start construction of their model homes as soon as possible so that the homes could be completed before the last day of March when the "season" ended. It therefore encouraged them to take such preliminary steps as might be necessary for them to "be ready to pull a building permit" upon the conclusion of the builder selection process.10 This included filing paperwork to obtain City of Palm Beach Gardens administrative (staff) approval of site plan modifications endorsed by the Mirasol Architectural Review Committee.11 Any builder wanting to file such pre-
selection paperwork had the permission of Taylor Woodrow (the property owner) to do so (as Taylor Woodrow's agent).
SD IV, through Paul Sabatello, filed such paperwork, along with a $150.00 check (for the filing fee),12 with the Palm Beach Gardens Planning and Zoning Division on December 18, 2000. In doing so, SD IV was seeking approval of the modifications to the Mirasol Parcel 4 site plan referenced in Mr. Harvey's December 8, 2000, letter to Paul Sabatello.
SD IV's submission was accompanied by a cover letter, dated December 18, 2000, from Paul Sabatello to Steve Cramer, the Palm Beach Gardens' Interim Growth Management Director, which read as follows:
Please find enclosed architectural drawings, exterior colors and site plans for your review and approval for Parcel 4 (Paradisio) Mirasol.
The floor plan and building colors vary slightly from the prototypical plans previously submitted.
We are requesting at this time an approval for the ability to use 3'-1" + 6'11" side yard set backs instead of the usual 0 + 10'. These set back conditions provide the required 10' building separation while according to Table 600 of the Standard Building Code allowing us to include some glass on what would be the zero side. The enclosed site plans show this clearly for the proposed models on specific lots. This set-back condition would apply to all lots in Parcel 4.
One additional request for approval. The original site plan indicated zero side of lots with the "zero flip" occurring on lots 9, 10 and 38, 39. [T]his is not possible with the new set back[] conditions.
Therefore, we are requesting that the zero side 3'-1" set back side be as follows:
Lots 1-23 "Zero" on Right Lots 24-46 "Zero" on Left
The enclosed site plan indicates the change that we are requesting.
Should you have any questions do not hesitate to call. Thank you.
The "architectural drawings" that were submitted showed the Da Vinci model (on lot 9), the Raphael model (on lot 10), the Bernini model (on lot 11), the Dante model (on lot 39), and the Michelangelo model (on lot 40).
On the forms that were part of the filing, the representation was made that SD IV owned Mirasol Parcel 4. In fact, Taylor Woodrow was the owner of the property, and it had merely given SD IV permission to make the filing on its behalf. It had not, at the time of the submission, entered into any agreement with SD IV regarding ownership of the property.
Among the other things that SD IV did around this time to be "ready to go" if and when selected by Taylor Woodrow to build on Mirasol Parcel 4 was to assemble materials it would
need to submit to the Palm Beach Gardens Building Department to obtain building permits to construct model homes on the parcel. As part of this process, Respondent signed and dated building permit application forms. He did so as early as December 20, 2000, the same date that a list of subcontractors (to accompany the permit applications) was prepared.14
Respondent recognized that it was a "gamble" to do the things that SD IV was doing to ready itself to begin building in Mirasol because there was the chance that the company would not be chosen to participate in the project and that all its preparation would be for naught. Nonetheless, he considered it to be a "gamble" worth taking and made good business sense.
Such pre-selection risk-taking was not uncommon among builders doing business in Palm Beach Gardens.15
The most recent of Respondent's allegedly unlawful votes were cast at the Palm Beach Gardens City Council December 21, 2000, meeting. These votes were in favor of approving six items on the consent agenda (Resolutions 127,
2000; 128, 2000; 129, 2000; 130, 2000; 131, 2000; and 132, 2000)
involving the platting of parcels that were part of the Mirasol Project, including Mirasol Parcel 4, as more particularly described in the parties' Stipulation of Fact 11. These plats had to be approved before any building permits could issue.
By the time of the December 21, 2000, votes, Respondent was aware that Mirasol Parcel 4 was where SD IV would be building (at least at the outset) if selected to participate in the Mirasol Project. He was hopeful that his company would get the opportunity to build there, but it was a matter over which he had no control. It was in the hands of Taylor Woodrow. As of December 21, 2000, Taylor Woodrow had not extended SD IV an offer to participate in the Mirasol Project, nor had it given SD IV any assurances that such an offer would be forthcoming. There was uncertainty as to whether SD IV would be selected. It was not until the following month that this uncertainty was eliminated when Taylor Woodrow finally made its decision to allow SD IV to become a builder in Mirasol, specifically on Mirasol Parcel 4.
In voting on these and prior resolutions affecting the Mirasol Project, Respondent was acting in a manner consistent with the verbal advice he had solicited from the City Attorney before each vote, as well as the advice contained in City Attorney Rubin's December 5, 2000, memorandum (which is set forth above). At the time of each of these votes, Respondent's company did not have "an interest by virtue of a contractual relationship with the master developer" in any property in Mirasol. Therefore, according to what he had been advised by City Attorney Rubin, he was not required to abstain from voting.
On December 28, 2000, the City of Palm Beach Gardens Planning and Zoning Division granted its approval of the modifications SD IV had sought (through its December 18, 2000, filing) to the Mirasol Parcel 4 site plan.
Respondent first learned that his company had been selected to build on Mirasol Parcel 4 when he received from Taylor Woodrow a letter dated January 22, 2001, so advising him, along with a Parcel Builder Agreement and Exclusive Agency Brokerage Agreement for Mirasol Parcel 4.
These agreements were fully executed in February of
2001.
SD IV paid $139,000 per lot for the lots that it
purchased in Mirasol Parcel 4 (consistent with the pre-selection pronouncement that had been made in the 'Mirasol Housing Price Matrix" that Taylor Woodrow had distributed).
SD IV was one of first builders to start construction in Mirasol.
SD IV successfully built out Mirasol Parcel 4. It sold all of the 46 homes it built.16
A total of 12 builders, including SD IV, participated "in the whole [Mirasol] [P]roject."
Not all of the Other Builders were selected to participate in the project.
CONCLUSIONS OF LAW
DOAH has jurisdiction over the subject matter of this proceeding and of the parties hereto pursuant to Chapter 120, Florida Statutes.
The Commission was "created . . . to serve as guardian of the standards of conduct for the officers and employees of the state, and of a county, city, or other political subdivision of the state . . . and to serve as the independent commission provided for in s. (8)(f), Art. II of the State Constitution."17
§ 112.320, Fla. Stat.
The "Code of Ethics for Public Officers and Employees" (Code) found in Chapter 112, Part III, Florida Statutes, contains such "standards of conduct."
In Sections 112.311 and 112.316, Florida Statutes, which provide, in pertinent part, as follows, the Legislature explained what it intended, and what it did not intend, in enacting the Code:
112.311 Legislative intent and declaration of policy
It is essential to the proper conduct and operation of government that public officials be independent and impartial and that public office not be used for private gain other than the remuneration provided by law. The public interest, therefore, requires that the law protect against any conflict of interest and establish standards for the conduct of elected officials and government employees in situations where conflicts may exist.
It is also essential that government attract those citizens best qualified to serve. Thus, the law against conflict of interest must be so designed as not to impede unreasonably or unnecessarily the recruitment and retention by government of those best qualified to serve. Public officials should not be denied the opportunity, available to all other citizens, to acquire and retain private economic interests except when conflicts with the responsibility of such officials to the public cannot be avoided.
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It is the intent of this act to implement these objectives of protecting the integrity of government and of facilitating the recruitment and retention of qualified personnel by prescribing restrictions against conflicts of interest without creating unnecessary barriers to public service.
It is hereby declared to be the policy of the state that no officer or employee of a state agency or of a county, city, or other political subdivision of the state, and no member of the Legislature or legislative employee, shall have any interest, financial or otherwise, direct or indirect; engage in any business transaction or professional activity; or incur any obligation of any nature which is in substantial conflict with the proper discharge of his or her duties in the public interest. To implement this policy and strengthen the faith and confidence of the people of the state in their government, there is enacted a code of ethics setting forth standards of conduct required of state, county, and city officers and employees, and of officers and employees of other political subdivisions of the state, in the performance of their official duties.
It is the intent of the Legislature that this code shall serve not only as a guide for the official conduct of public servants in this state, but also as a basis for discipline of those who violate the provisions of this part.
It is declared to be the policy of the state that public officers and employees, state and local, are agents of the people and hold their positions for the benefit of the public. They are bound to uphold the Constitution of the United States and the State Constitution and to perform efficiently and faithfully their duties under the laws of the federal, state, and local governments. Such officers and employees are bound to observe, in their official acts, the highest standards of ethics consistent with this code and the advisory opinions rendered with respect hereto regardless of personal considerations, recognizing that promoting the public interest and maintaining the respect of the people in their government must be of foremost concern.
112.316 Construction
It is not the intent of this part, nor shall it be construed, to prevent any officer or employee of a state agency or county, city, or other political subdivision of the state or any legislator or legislative employee from accepting other employment or following any pursuit which does not interfere with the full and faithful discharge by such officer, employee, legislator, or legislative employee of his or her duties to the state or the county, city, or other political subdivision of the state involved.
Among the "standards of conduct" established by the Code are those set forth in Section 112.3143(3)(a), Florida Statutes, which at all material times has provided 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.
As a member of the Palm Beach Gardens City Council, Respondent was subject to the provisions of Section 112.3143(3)(a), Florida Statutes.
"Business associate," as used in Section 112.3143(3)(a), Florida Statutes, includes "any person . . . carrying on a business enterprise with a public officer . . . as a . . . corporate shareholder where the shares of such corporation are not listed on any national or regional stock exchange . . . ." § 112.312(4), Fla. Stat.
"Relative," as used in Section 112.3143(3)(a), Florida Statutes, includes "an individual who is related to a public
officer . . . as . . . [a] brother . . . ." § 112.312(21), Fla. Stat.
At all times material to the instant case, Respondent's brothers were his "business associates" and "relatives," within the meaning of Section 112.3143(3)(a), Florida Statutes.
The Legislature has granted the Commission the authority and responsibility to issue advisory opinions "to interpret or advise on the applicability of" Section 112.3143(3)(a), Florida Statutes, and the other provisions of the Code. Commission on Ethics v. Sullivan, 489 So. 2d 10, 13 (Fla. 1986). This grant of power and duty is found in Section 112.322(3)(a), Florida Statutes, which provides as follows:
Every public officer, candidate for public office, or public employee, when in doubt about the applicability and interpretation of this part or s. 8, Art. II of the State Constitution to himself or herself in a particular context, may submit in writing the facts of the situation to the Commission on Ethics with a request for an advisory opinion to establish the standard of public duty. Any public officer or employee who has the power to hire or terminate employees may likewise seek an advisory opinion from the commission as to the application of the provisions of this part or s. 8, Art. II of the State Constitution to any such employee or applicant for employment. An advisory opinion shall be rendered by the commission, and each such opinion shall be numbered, dated, and published without naming the person making the request, unless such person consents to the use of his or her
name.
According to Subsection (3)(b) of the statute, an advisory opinion issued by the Commission, "until amended or revoked, shall be binding on the conduct of the officer, employee, or candidate who sought the opinion or with reference to whom the opinion was sought, unless material facts were omitted or misstated in the request for the advisory opinion."
Advisory opinions issued by the Commission pursuant to Section 112.322(3)(a), Florida Statutes, such as CEO 87-86 and CEO 89-45, are not "rules," as defined in Section 120.52(16), Florida Statutes,19 because they are not "statements of general applicability" inasmuch as their "binding" effect, by statute, is limited to "the conduct of the officer, employee, or candidate who sought the opinion or with reference to whom the opinion was sought."20 See Agency for Health Care Administration v. Custom Mobility, Inc., 995 So. 2d 984, 986 (Fla. 1st DCA 2008)("[T]the cluster sampling formula is not an agency statement of general applicability. . . . In Department of Commerce v. Matthews Corporation, 358 So. 2d 256 (Fla. 1st DCA 1978), this Court held that wage rate guidelines were not statements of general applicability because they were 'applicable only to the construction of the particular public building or other work specified in the determination,' and because they have 'no prospective application to any other
contract - only the specific project involved in the particular location.' Id. at 258. In Department of Highway Safety v.
Schluter, 705 So. 2d 81, 82 (Fla. 1st DCA 1997), this Court held that three of six agency statements in question, policies concerning officer discipline, were not statements of general applicability 'because the record establishes that each was to apply only under 'certain circumstances,' and so did not have the 'consistent effect of law' mentioned in McDonald.
Similarly, the formula here applies only to some of the service providers being audited, and thus does not have the consistent effect of law."); Taylor v. Department of Banking and Finance, Office of the Comptroller, No. 02-2135RU, 2002 Fla. Div. Adm.
Hear. LEXIS 1056 *32 (Fla. DOAH August 6, 2002)(Final Order)("If by its terms a statement is intended to apply to one person only, or to some but not all similarly situated persons, depending on the particular circumstances, then it should ordinarily be regarded as a case-specific adjudication rather than a policy of general applicability."); Butterworth v.
Department of Banking and Finance, No. 97-2911RU, 1997 Fla. Div. Adm. Hear. LEXIS 5654 *4 (Fla. DOAH August 19, 1997)(Final Order)("[I]n order for a statement to qualify as a rule, it must be a 'statement of general applicability that implements, interprets, or prescribes law or policy . . . of an agency.' By its own terms, a declaratory statement applies to a 'particular
set of circumstances' and cannot qualify as a statement of general applicability."); and Florida Manufactured Housing Association, Inc. v. Department of Business Regulation, Division of Florida Land Sales, Condominiums and Mobile Homes, Nos. 85- 3858RX and 85-3859RX, 1984 Fla. Div. Adm. Hear. LEXIS 5231 *65
(Fla. DOAH December 17, 1984)(Final Order)("This explanation only applies to the particular park owners which the Respondent provided the explanation to. It is not clearly intended to be a policy of general applicability even though the explanation was given to more than one park owner because those park owners had given the same clearly insufficient explanations in their notices. . . . It is therefore concluded that the Petitioner has failed to prove that the Respondent has adopted a policy which should have been promulgated as a rule."); see also Florida Optometric Association v. Department of Professional Regulation, Board of Opticianry, 567 So. 2d 928, 937 (Fla. 1st DCA 1990)("We do observe, however, that declaratory statements and rules serve clearly distinct functions under the scheme of Chapter 120. Although the line between the two is not always clear, it should be remembered that declaratory statements are not to be used as a vehicle for the adoption of broad agency policies. Nor should they be used to provide interpretations of statutes, rules or orders which are applicable to an entire class of persons. Declaratory statements should only be granted
where the petition has clearly set forth specific facts and circumstances which show that the question presented relates only to the petitioner and his particular set of circumstances.").
Since they are not "rules," the Commission's advisory opinions are not subject to challenge pursuant to Section 120.57(1)(e), Florida Statutes. Accordingly, to the extent that Respondent contends that the Commission is barred by Section 120.57(1)(e) from relying on the reasoning of CEO 87-86 and CEO 89-45 in determining whether Respondent committed the violations alleged in the Order Finding Probable Cause, that argument is rejected.
A local public officer "in doubt about the applicability and interpretation" of Section 112.3143(3)(a), Florida Statutes, can avoid being found guilty of a violation of the Code by making a request to the Commission for an advisory opinion, accompanied by an accurate and complete disclosure of the pertinent facts, and by then following the advice given by the Commission in its advisory opinion, which, by operation of Section 112.322(3)(a), Florida Statutes, "establish[es] the standard of public duty" for the officer. Simply obtaining and following the advice of an attorney, however, does not provide the same protection, although it may constitute a mitigating circumstance to be taken into consideration in determining an
appropriate penalty in those cases where the attorney's advice turns out to have been erroneous. Cf. In re Mitchell Kinzer, No. 95-13, 1994 Fla. Div. Adm. Hear. LEXIS 5188 *40 (Fla.
Commission on Ethics April 21, 1994)(Final Order), rev'd on
other grounds, Kinzer v. State Commission on Ethics, 654 So. 2d 1007 (Fla. 3d DCA 1995)("Where, as here, there is no requirement of wrongful intent, Respondent's reliance on the incorrect advice of counsel is not a defense. See In re Michael Kenton,
FALR 1295, 1317 (Commission on Ethics 1989). Respondent's reliance on the prior advice of counsel mitigates, but does not obviate the violation. See Gordon v. Commission on Ethics, 609 So. 2d 125 (Fla. 4th DCA 1992).").
The "penalties" that may be imposed for violations of Section 112.3143(3)(a), Florida Statutes, and other Code provisions are spelled out in Section 112.317(1)(a), Florida Statutes, which provides, in pertinent part, as follows:
Violation of any provision of this part, including, but not limited to, any . . . violation of any standard of conduct imposed by this part, . . . in
addition to any criminal penalty or other civil penalty involved, shall, pursuant to applicable constitutional and statutory procedures, constitute grounds for, and may be punished by, one or more of the following:
(a) In the case of a public officer:
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Removal from office.
Suspension from office.
Public censure and reprimand.
Forfeiture of no more than one-third salary per month for no more than 12 months.
A civil penalty not to exceed $10,000.
Restitution of any pecuniary benefits received because of the violation committed. The commission may recommend that the restitution penalty be paid to the agency of which the public officer was a member or to the General Revenue Fund.
In any case in which the commission finds a violation of this part . . . and recommends a civil penalty or restitution penalty, the Attorney General shall bring a civil action to recover such penalty. No defense may be raised in the civil action to enforce the civil penalty or order of restitution that could have been raised by judicial review of the administrative findings and recommendations of the commission by certiorari to the district court of appeal.
* * *
(5) By order of the Governor, upon recommendation of the commission, any elected municipal officer who violates any provision of this part . . . may be suspended from office and the office filled by appointment for the period of suspension. The suspended officer may at any time before removal be reinstated by the Governor. The Senate may, in proceedings prescribed by law, remove from office, or reinstate, the suspended official, and for such purpose the Senate may be convened in special session by its President or by a majority of its membership.
Pursuant to Section 112.324(3), Florida Statutes, "only the appropriate disciplinary authority as designated in this section" may impose penalties for Code violations. In the case of an elected municipal officer, the Governor is the "appropriate disciplinary authority . . . designated in [Section 112.324]."
The Commission is authorized to investigate complaints of violations of the Code to determine "whether there is probable cause to believe that a violation has occurred." If, upon completion of its preliminary investigation, the Commission finds that such probable cause exists, a public (evidentiary) hearing must be held if requested by the accused public officer or employee. If it so desires, "[t]he [C]ommission may on its own motion, require a public [evidentiary] hearing." § 112.324, Fla. Stat.
"Public hearings may be conducted by the full Commission, by a single Commission member, or by the Division of
Administrative Hearings, as directed by the Chair of the Commission after considering the Commission's workload." Fla. Admin. Code R. 34-5.010.
The Commission is represented at these public hearings by its Advocate, who enjoys the same opportunity as the accused to be a "full participant" in the proceedings. Fla. Admin. Code R. 34-5.011; see also Fla. Admin. Code R. 34-5.0045(2)("The Advocate represents the Commission in its prosecutorial function.").
The Advocate bears the burden of proving that the accused engaged in the conduct, and thereby committed the Code violation(s), alleged in the Commission's order finding probable cause.
Proof greater than a mere preponderance of the evidence must be presented by the Advocate to meet this burden of proof. Clear and convincing evidence of the accused's guilt is required. See Department of Banking and Finance, Division of Securities and Investor Protection v. Osborne Stern and Company, 670 So. 2d 932, 935 (Fla. 1996); and Latham v. Florida Commission on Ethics, 694 So. 2d 83, 87 (Fla. 1st DCA 1997).
Clear and convincing evidence "requires more proof than a 'preponderance of the evidence' but less than 'beyond and to the exclusion of a reasonable doubt.'" In re Graziano, 696 So. 2d 744, 753 (Fla. 1997). It is an "intermediate standard."
Id. For proof to be considered "'clear and convincing' . . . 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, with approval, from Slomowitz v. Walker, 429 So. 2d 797, 800 (Fla. 4th DCA 1983). "Although this standard of proof may be met where the evidence is in conflict, . . . it seems to preclude evidence that is ambiguous." Westinghouse Electric Corporation, Inc. v. Shuler Bros., Inc., 590 So. 2d 986, 989 (Fla. 1st DCA 1991).
The Advocate's evidentiary presentation at the public hearing must be evaluated in light of the specific allegations of wrongdoing made in the Commission's order finding probable cause (as narrowed during the discovery process) to determine whether the Advocate has met his burden of proof. Due process prohibits penal action being taken against a public officer based on matters outside these specific allegations, unless those matters have been tried by consent. See Shore Village Property Owners' Association, Inc. v. Department of Environmental Protection, 824 So. 2d 208, 210 (Fla. 4th DCA
2002); and Marcelin v. Department of Business and Professional Regulation, 753 So. 2d 745, 747 (Fla. 3d DCA 2000).
Where an administrative law judge has conducted the public hearing and issued a recommended order, the Commission must meet to consider the recommended order and any exceptions thereto. Pursuant to Florida Administrative Code Rule 34-5.024, the meeting "shall not be an evidentiary 'hearing'" and "[n]o new evidence shall be taken."
If the Commission, at its meeting, finds that there was a violation of the Code, as specifically alleged by the Commission, it may recommend a "civil penalty" (not to exceed
$10,000.00) and/or a "restitution penalty" (in an amount equal to the "pecuniary benefits received because of the violation committed"). Should the Commission do so, "the Attorney General [must] bring a civil action to recover such penalty." § 112.317, Fla. Stat.
In the instant case, the Commission has alleged that Respondent, as a member of the Palm Beach Gardens City Council, violated Section 112.3143(3), Florida Statutes, on September 7, 2000, September 21, 2000, October 19, 2000, November 30, 2000, and December 21, 2000, by voting on various matters concerning the Mirasol Project (Subject Votes).
To determine whether the Advocate has met his burden of proving these violations by clear and convincing evidence, it
is first necessary to ascertain the meaning of Section 112.3143(3), Florida Statutes, and understand what conduct it prohibits.
"Legislative intent is the 'polestar' in interpretation of statutory provisions." Blinn v. Florida Department of Transportation, 781 So. 2d 1103, 1107 (Fla. 1st DCA 2000). "Legislative intent must be derived primarily from the words expressed in the statute. If the language of the statute is clear and unambiguous," these words must be given effect. Florida Department of Revenue v. Florida Municipal Power Agency, 789 So. 2d 320, 323 (Fla. 2001).
Inasmuch as it is a penal statute, Section 112.3143(3), Florida Statutes, must be strictly construed and not extended beyond its intended reach. If there are any doubts concerning its applicability, these doubts must be resolved in favor of limiting, rather than extending, its scope of operation. See Florida Industrial Commission v. Manpower, Inc. of Miami, 91 So. 2d 197, 199 (Fla. 1956); Beckett v. Department of Financial Services, 982 So. 2d 94, 100 (Fla. 1st DCA 2008); and Latham, 694 So. 2d at 86.
It is telling that the Legislature, in Section 122.3143(3), Florida Statutes, used the language "would inure," not "might inure" or "is likely to inure." Strictly construing this language in a manner consistent with its plain meaning, the
Commission, "[i]n past decisions, [has] found that the statute does not apply in situations where, at the time of the vote, there is uncertainty whether there will be any [special private] gain or loss to the officer, his principal (employer), or to other persons or entities standing in an enumerated relationship to the officer, and if so, what the nature and magnitude of the gain or loss might be." CEO 07-7 (Fla. Commission on Ethics March 7, 2007); see also CEO 90-66 (Fla. Commission on Ethics October 19, 1990)("A county commissioner was not prohibited by Section 112.3143(3), Florida Statutes, from voting on a provisional use petition by a landowner for communication tower use when he was an investor in a limited partnership, the parent company of which had negotiated with the landowner for placement of television broadcasting facilities on a future communication tower but where there had been no commitment on the landowner's part to construct the tower, negotiations have continued, no lease contract has been entered into, and negotiations have also taken place with the owners of other communications towers which would be acceptable locations for the television facilities.
Any gain or loss resulting from the provisional use to the partnership in which the subject commissioner is a limited partner is too speculative and remote to conclude that his vote on the provisional use petition would inure to his special private gain."). That there ultimately may have been a "special
private gain or loss" is not determinative. A local public officer's action in voting on a particular measure must be judged, not based on hindsight, but on the circumstances that existed "at the time of the vote" in question. If, in light of these circumstances, one could have only speculated "at the time of the vote" as to whether or not a prohibited "special private gain or loss" would result from the measure voted on, the officer cannot be found guilty of having violated the statute by voting on the measure, even if it turned out that the vote did cause "the officer, his principal (employer), or to other persons or entities standing in an enumerated relationship to the officer" to realize a "special private gain or loss."
The Advocate has taken the position in the instant case that Respondent violated Section 112.3143(3), Florida Statutes, by casting the Subject Votes because he, as well his company, SD IV, (which was his "principal"21) and his brothers (who were not only his "relatives," but also his "business associates"), stood to gain from the measures voted on through SD IV's participation in the Mirasol Project. The record evidence, however, establishes that, although SD IV did end up participating in the Mirasol Project, its participation was uncertain at the time of each of the Subject Votes. As of December 21, 2000, the date of the last of these votes, the builder selection process was still ongoing. Taylor Woodrow,
the entity solely responsible for deciding whether or not SD IV would be a project participant, had yet to make its decision, and it was by no means foregone that SD IV would be selected.
Because SD IV's participation in the Mirasol Project was speculative at the time of the Subject Votes, so too was any potential "special private gain or loss" that might be derived from the measures voted on as result of such participation. As such, this possibility of "special private gain or loss" did not bar Respondent, pursuant to Section 112.3143(3), from casting the Subject Votes.
Borrowing from the holdings in CEO 87-86 and CEO 89- 45,22 the Advocate has also suggested, as an alternative theory of "special private" inurement in the instant case, that Respondent's casting the Subject Votes at the same time his company "was negotiating with [Taylor Woodrow] for participation in the very project affected by [those] votes" made it more likely that his company would "benefit in the negotiations" and be selected to participate in the project. According to the Advocate, this enhanced chance of selection "provides yet another basis for finding that Respondent's votes constituted voting conflicts" in violation of Section 112.3143(3), Florida Statutes. The argument is not a convincing one. Firstly, for there to be a "voting conflict" under Section 112.3143(3), the "special private gain or loss" that "would inure" must flow
directly from the measure being voted on, not merely from a favorable reaction by a proponent of the measure to the local public officer's casting a "yea" vote. Secondly, it is a matter of pure speculation, not supported by the evidentiary record in this case, that there might have been, at the time of the Subject Votes (or at anytime, for that matter), a connection between the way Respondent voted on measures affecting the Mirasol Project and Taylor Woodrow's inclination to select Respondent's company to participate in the project.
In view of the foregoing, it cannot be said that it has been clearly and convincingly established that Respondent violated Section 112.3143(3), Florida Statutes, as a result of his casting the Subject Votes.
RECOMMENDATION
Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby
RECOMMENDED that the Commission issue a public report finding the evidence presented at the public hearing in this case insufficient to clearly and convincingly establish that Respondent violated Section 112.3143(3), Florida Statutes, by voting at the September 7, 2000, September 21, 2000, October 19,
2000, November 30, 2000, and December 21, 2000, Palm Beach Gardens City Council meetings on matters affecting the Mirasol Project and dismissing the complaint filed against Respondent.
DONE AND ENTERED this 4th of March, 2009, in Tallahassee, Leon County, Florida.
S
STUART M. LERNER
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
Filed with the Clerk of the Division of Administrative Hearings this 4th day of March, 2009.
ENDNOTES
1 This statutory provision was renumbered Section 120.52(16), Florida Statutes, effective July 1, 2008, after the issuance of the undersigned's March 26, 2008, order,.
2 Subsection (20) of Section 120.52, Florida Statutes, which was added to the statute by Chapter 2008-104, Laws of Florida, effective July 1, 2008, defines "unadopted rule," as used in Chapter 120, Florida Statutes, as follows:
"Unadopted rule" means an agency statement that meets the definition of the term "rule," but that has not been adopted pursuant to the requirements of s. 120.54.
3 Through the passage of the aforementioned Chapter 2008-104, Laws of Florida, effective July 1, 2008, the Legislature amended Section 120.57(1)(e), Florida Statutes, to add the threshold requirement that an agency may rely on "unadopted rules" only if it "demonstrates that the statute being implemented directs it to adopt rules, that the agency has not had time to adopt those rules because the requirement was so recently enacted, and that the agency has initiated rulemaking and is proceeding expeditiously and in good faith to adopt the required rules."
4 The hearing was originally scheduled to commence on May 12, 2008, but was thrice continued.
5 The undersigned has accepted these factual stipulations. See Columbia Bank for Cooperatives v. Okeelanta Sugar Cooperative,
52 So. 2d 670, 673 (Fla. 1951)("When a case is tried upon stipulated facts the stipulation is conclusive upon both the trial and appellate courts in respect to matters which may validly be made the subject of stipulation."); Schrimsher v. School Board of Palm Beach County, 694 So. 2d 856, 863 (Fla. 4th DCA 1997)("The hearing officer is bound by the parties' stipulations."); and Palm Beach Community College v. Department of Administration, Division of Retirement, 579 So. 2d 300, 302 (Fla. 4th DCA 1991)("When the parties agree that a case is to be tried upon stipulated facts, the stipulation is binding not only upon the parties but also upon the trial and reviewing courts. In addition, no other or different facts will be presumed to exist.").
6 Mirasol Parcel 4 was one of 29 numbered parcels included in the Mirasol Project.
7 It is unclear from the evidentiary record exactly what, if anything -- beyond what is reported in the memorandum -- Respondent told City Attorney Rubin about the nature and status of these so-called "negotiations."
8 Two days earlier, on December 6, 2000, Mr. Harvey had sent to Paul Sabatello a letter identical to this December 8, 2000, letter, except that it did not contain this paragraph.
9 Paradisio was the name Taylor Woodrow had given to Mirasol Parcel 4.
10 According to the deposition testimony of former Palm Beach Gardens Building Department head Jack Hanson, which the undersigned has credited, Mr. Hanson's department "generally would issue a [building] permit within ten to 14 days" of receiving a "complete submittal with all the necessary information." (Mr. Hanson headed the department from the early 1980's to June of 2004.)
11 There was no prohibition against an application for such approval subsequently being withdrawn.
12 The check was deposited on December 19, 2000.
13 The "letter of approval" that was enclosed was the December 6, 2000, letter from Mr. Harvey to Paul Sabatello.
14 SD IV ultimately applied for these building permits, but it is unclear from the evidentiary record exactly when it did so.
15 A building permit application could be withdrawn without penalty if the applicant did not acquire the property.
16 SD IV subsequently purchased, and successfully built on, lots in Mirasol Parcels 6 and 24.
17 Article II, Section 8 of the Florida Constitution provides that "[t]here shall be an independent commission to conduct investigations and make public reports on all complaints concerning breach of public trust by public officers or employees not within the jurisdiction of the judicial qualifications commission."
18 Pursuant to Section 286.012, Florida Statutes, which is not part of the Code, a local public officer is permitted to abstain from voting only "when, with respect to any such [officer], there is, or appears to be, a possible conflict of interest under the provisions of s. 112.311, s. 112.313, or s. 112.3143." Absent such a "possible conflict of interest" or the appearance of one, voting is mandatory and abstention is prohibited.
19 Section 120.52(16), Florida Statutes, provides as follows: "Rule" means each agency statement of
general applicability that implements, interprets, or prescribes law or policy or describes the procedure or practice requirements of an agency and includes any form which imposes any requirement or solicits any information not specifically required by statute or by an existing rule. The term also includes the amendment or repeal of a rule. The term does not include:
Internal management memoranda which do not affect either the private interests of any person or any plan or procedure important to the public and which have no
application outside the agency issuing the memorandum.
Legal memoranda or opinions issued to an agency by the Attorney General or agency legal opinions prior to their use in connection with an agency action.
The preparation or modification of:
Agency budgets.
Statements, memoranda, or instructions to state agencies issued by the Chief Financial Officer or Comptroller as chief fiscal officer of the state and relating or pertaining to claims for payment submitted by state agencies to the Chief Financial Officer or Comptroller.
Contractual provisions reached as a result of collective bargaining.
Memoranda issued by the Executive Office of the Governor relating to information resources management.
20 That Section 112.322(3)(a), Florida Statutes, requires that each advisory opinion "be . . . published" suggests that the Legislature contemplated that these opinions would also provide non-binding guidance to other "officer[s], employee[s], or candidate[s]" faced with similar circumstances and help them choose the appropriate course of action to take to deal with their particular situations. Compare with Chiles v. Department of State, Division of Elections, 711 So. 2d 151, 155 (Fla. 1st DCA. 1998)("[T]he reasoning employed by the agency in support of a declaratory statement [issued pursuant to Section 120.565, Florida Statutes] may offer useful guidance to others who are likely to interact with the agency in similar circumstances. Another party can expect the agency to apply the rationale for its declaratory statement consistently, or to explain why a different application is required."). "However, [a Commission advisory opinion, like] a declaratory statement[,] is not transformed into a rule merely because it addresses a matter of interest to more than one person." Id. at 154.
21 In the Advocate's response to Interrogatory 9 of Respondent's First Set of Interrogatories, no other alleged "principal," aside from "Sabatello Development Corporation IV or other Sabatello companies," was identified.
22 In CEO 87-86, in deciding that "[a] city council member would be prohibited by Section 112.3143, Florida Statutes, from voting on a proposed development agreement regarding the construction of a shopping center development, where he is negotiating for the lease or sublease of space in the shopping center," the Commission reasoned:
In our view, the subject Council member clearly is presented with a conflict of interest when called upon to vote on a development agreement pertaining to a project within which he is in the process of negotiating to lease space. He clearly would not be negotiating for a lease unless he expected to gain from the lease, yet the extent of his gain will turn upon the developer's willingness to lease a favorable location under favorable terms and conditions. As different arrangements are possible for each tenant, it is not appropriate to determine whether the Council member is prohibited from voting on the basis of the percentage of space he seeks to lease within the project. Under the circumstances presented, therefore, we cannot conclude that the development agreement would not inure to the special gain of the Council member.
In CEO 89-45, the Commission relied on its holding in CEO 87-86, when it stated:
This provision [Section 112.3143(3), Florida Statutes] prohibits the Commissioner from voting on a measure which either inures to his special private gain or inures to the special private gain of a principal by whom he is retained at the time of the vote. If the Commissioner . . . has contacted or is in the process of negotiating with a contractor or developer [to have his steel
company provide steel for a project on which the commission is voting], but has not submitted a proposal, then he would be required to abstain. Under our rationale in CEO 87-86, if the Commissioner is negotiating at the time of the vote, he may gain from the contractor's or developer's willingness to contract with him, as well as from any action by the Commission favoring the development.
The Commission should decline the Advocate's entreaties to rely on these statements in the instant case, not because the statements are "unadopted rules," within the meaning of Section 120.57(1)(e), Florida Statutes (which they are not), but rather because they constitute unpersuasive, aberrant precedent inconsistent with a strict reading of Section 112.3143(3), Florida Statutes. Moreover, were the Commission to find a violation of Section 112.3143(3) in the instant case based upon the "we cannot conclude [the measure] would not inure to the special gain of the [local public officer]" rationale of CEO 87-
86 and CEO 89-45, it would be ignoring the requirement that a local public officer's guilt of such a violation be affirmatively established by clear and convincing evidence. Respondent did not have the burden in this case to prove that the measures on which he voted "would not inure to [his] special gain" or that of his company or his brothers.
COPIES FURNISHED:
James H. Peterson, III, Esquire Office of the Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050
Albert T. Gimbel, Esquire
R. Gary Early, Esquire Mark Herron, Esquire
Messer, Caparello & Self, P.A.
2618 Centennial Place Post Office Box 15579
Tallahassee, Florida 32317
Kaye Starling, Agency Clerk Florida Commission on Ethics
3600 Macclay Boulevard, South, Suite 201 Post Office Drawer 15709
Tallahassee, Florida 32317-5709
Philip C. Claypool, Executive Director and General Counsel
Florida Commission on Ethics
3600 Macclay Boulevard, South, Suite 201 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 |
|---|---|---|
| Apr. 29, 2009 | Agency Final Order | |
| Mar. 04, 2009 | Recommended Order | City council member did not violate voting conflicts law when he voted on measures affecting property his company was in talks to buy, but there was uncertainty as to whether puchase would be made. |
