STATE OF FLORIDA
COMMISSION ON ETHICS
In re LEO C. NICHOLAS, )
Respondent. ) Complaint No. 87-47
FINAL ORDER AND PUBLIC REPORT
This matter came before the Commission on Ethics for final action on review of the Recommended Public Report of the Hearing Officer (a copy of which is attached and incorporated by reference). The Respondent filed exceptions to the Recommended Public Report, which recommends that the Commission find that he violated Section 112.313(6), Florida Statutes, by using his official position as City Manager of the City of Cape Canaveral to order the City Building Official to issue a building permit. Having reviewed the Recommended Public Report, the Respondent's exceptions, and the record of the public hearing of this complaint, and having heard the arguments of counsel for the Respondent and of the Commission's Advocate, the Commission makes the following findings, conclusions, rulings, and recommendation:
The findings of fact set forth in the Recommended Public Report are approved, adopted, and incorporated herein, with the following exception. Paragraph 13 of the Hearing Officer's findings of fact refers to a meeting between the Respondent and Mr. Gunn on March 26, 1989. Based on a review of the record, that meeting occurred on March 26, 1987 and not 1989.
The Conclusions of Law set forth in the Recommended Public Report are approved, adopted, and incorporated herein.
The Respondent's exception to paragraph 13 of the findings of fact contained in the Recommended Public Report is adopted to the extent it relates to a meeting between the Respondent and Mr. Gunn held on March 26, 1987 rather than on March 26, 1989, as noted above.
The Respondent filed exceptions to paragraphs 3, 7, 8, 9, 10, 11, 14, 16, 20, 22, 23, 25, 26, 27, 28, 29, and 30 of the findings of fact contained in the Hearing Officer's Recommended Public Report, arguing that there was no competent substantial evidence presented at the public hearing to support these findings of fact. These exceptions are denied on the basis that there is competent substantial evidence in the record to support the findings.
Except as noted above, the Respondent's exceptions to paragraphs 12 and 13 of the findings of fact in the Recommended Public Report are denied as not constituting proper exceptions to findings of fact. Rather than arguing that there is not competent substantial evidence for a finding, these exceptions argue that additional findings of fact should have been made by the Hearing Officer.
The Respondent's exceptions B 1 through B 8 (contained on pages 5 - 9 of the Respondent's exceptions), which argue that the proceedings conducted by the Hearing Officer did not comply with the essential requirements of law, also are denied. Based on a review of the record, no errors have been demonstrated by Respondent's counsel which affected the fundamental fairness of the proceeding to the degree that it could be concluded that the proceedings on which the Hearing Officer's findings were based did not comply with essential requirements of law. With specific regard to the Respondent's arguments about the exchange between Respondent's counsel and the Hearing Officer concerning whether counsel was trying to embarrass the Hearing Officer, the record is clear that whether or not there was such an attempt the Hearing Officer was not embarrassed and there is no objective basis for finding that the fundamental fairness of the proceeding was affected.
The Respondent also filed exceptions to the rulings made by the Hearing Officer on his proposed findings of fact contained in paragraphs 3, 4, 14, 16, 19, 20, 22, 24, 25, 26-28, 29, 30, 31, 32, 33, and 34 of the Respondent's Proposed Public Report. These exceptions are rejected on the basis that the Respondent has failed to demonstrate that the Hearing Officer's action on any of his proposed findings of fact was in error.
The Respondent's exceptions to the conclusions of law contained in the Recommended Public Report are denied, as there is competent substantial evidence to support the Hearing Officer's findings of fact, as the Hearing Officer's conclusions of law are consistent with Section 112.313(6), Florida Statutes, and as the facts found by the Hearing Officer do support a finding of a violation of Section 112.313(6), Florida Statutes. In particular, the Commission finds that the grant of the building permit was a "special benefit" within the meaning of Section 112.313(6), Florida Statutes.
Having found that the Respondent, Leo C. Nicholas, as City Manager for the City of Cape Canaveral, violated Section 112.313(6), Florida Statutes, as described in the Recommended Public Report, pursuant to Sections 112.317(1) and 112.324(4), Florida Statutes, it is the recommendation of the Commission on Ethics that the Respondent be publicly censured and reprimanded and
that a civil penalty in the amount of one thousand-five hundred dollars ($1,500.00) be imposed against him by the City Council of the City of Cape Canaveral.
ORDERED by the State of Florida Commission on Ethics meeting in public session on April 13, 1989.
Karen S. Matteson
Commission on Ethics
THIS ORDER CONSTITUTES FINAL AGENCY ACTION. ANY PARTY WHO IS ADVERSELY AFFECTED BY THIS ORDER HAS THE RIGHT TO SEEK JUDICIAL REVIEW UNDER SECTION 120.68, FLORIDA STATUTES, BY FILING A NOTICE OF ADMINISTRATIVE APPEAL PURSUANT TO RULE 9.110, FLORIDA RULES OF APPELLATE PROCEDURE, WITH THE CLERK OF THE COMMISSION ON ETHICS, 2107 THE CAPITOL, TALLAHASSEE, FLORIDA 32399-1450; AND BY FILING A COPY OF THE NOTICE OF APPEAL ACCOMPANIED BY THE APPLICABLE FILING FEES WITH THE APPROPRIATE DISTRICT COURT OF APPEAL. THE NOTICE OF ADMINISTRATIVE APPEAL MUST BE FILED WITHIN 30 DAYS OF THE DATE THIS ORDER IS RENDERED AND IS FILED WITH THE CLERK OF THE COMMISSION.
Copies furnished to:
Mr. R. Frazier Solsberry, Attorney for Respondent
Mr. Craig B. Willis, Commission Advocate
Ms. Helen S. Filkins, Complainant