STATE OF FLORIDA
COMMISSION ON ETHICS
In re LEO C. NICHOLAS, )
Respondent. ) Complaint No.87-47
RECOMMENDED PUBLIC REPORT OF HEARING OFFICER
This matter was initiated by the filing of a complaint by the Complainant, Helen S. Filkins, who alleged that the Respondent, Leo C. Nicholas, violated Section 112.313(6), Florida Statutes. Following a preliminary investigation, the Commission on Ethics found probable cause and ordered a public hearing on the issue of whether the Respondent, as the City Manager for the City of Cape Canaveral, violated Section 112.313(6), Florida Statutes, by ordering Mr. Artis Gunn, the City Building Official for the City of Cape Canaveral, to issue a building permit for a project known as Gizella Townhomes.
A public hearing was held on Monday, November 14, 1988, in Cape Canaveral, Florida, before the undersigned member of the Commission on Ethics, who served as Hearing Officer for the Commission. Craig B. Willis, Assistant Attorney General, appeared as Advocate for the Commission, and R. Frazier Solsberry, Esq., appeared on behalf of the Respondent.
At the public hearing the Advocate called the following witnesses: Artis A. Gunn, Elly F. Johnson, Fredrick C. Nutt, Gerald Wilson, Clyde Pirtle, Jeffrey Eckley, Josephine Hughes, and Evelyn Hutcherson. The Respondent called the following witnesses: James Theriac and Leo C. Nicholas. The parties filed a prehearing stipulation, and various exhibits presented by the parties were received in evidence. Depositions were filed by the Attorney for the Respondent and by the Commission Advocate, but they were not received in evidence and therefore have not been considered by the Hearing Officer in making the findings of fact contained in this order.
The parties have submitted proposed findings of fact and conclusions of law which have been considered by the Hearing Officer. Specific rulings on each party's proposed findings of fact are set forth in the appendix to this order. References to the transcript of the hearing are denoted by the letter "T"; references to the Prehearing Stipulation filed by the parties are made by the letter "S"; references to the Advocate's and the Respondent's exhibits are made as "AE" and "RE", respectively, followed by the exhibit number and page number, if applicable.
After the presentation of evidence by the Commission Advocate, the Respondent moved for a proposed finding that the Advocate failed to satisfy his burden of proof; the Hearing Officer deferred ruling on that motion. T 278-289. After the Respondent rested his case, he renewed his motion, and the Hearing Officer again deferred ruling. T 296-297. The Respondent's motion is hereby denied on the basis of the findings of fact and conclusions of law reached in this order.
From the evidence presented at the hearing, the undersigned Hearing Officer finds as follows:
1. The Respondent, Leo C. Nicholas, serves as the City Manager of the City of Cape Canaveral, and has served in that position at all times material to this complaint. S (e)1.
2. Mr. Artis Gunn formerly served as the Building Official for Cape Canaveral for approximately three and one-half years, and held that position for the first three months of 1987. T 26, 44-45. Mr. Gunn was hired as Building Official by the former City Manager, Mr. Frederick C. Nutt. T 155-56.
3. A townhome project, known as Gizella Townhomes, was approved by the City of Cape Canaveral, apparently in 1986. The preliminary plat and the site plan for the project apparently were approved with certain conditions which were not made clear at the public hearing. The application for a building permit for the first phase of the project, which was filed after preliminary plat and site plan reviews, indicates that the owner of the property was Lake Hancock Villas, Inc., of Cape Canaveral. T 27, 64-66; AE 1.
4. On December 16, 1986, the consulting engineers for the City provided review comments to Mr. Gunn, as the Building Official, regarding the Gizella Townhomes site plan. The letter in which the comments were made referenced, among other matters, a sanitary sewer service main along the south property line of the project, the elevation of which apparently was improper in the site plan. RE 1.
5. On March 6, 1987, John L. Murphy, Jr., a contractor, filed an application for a Building Permit to construct four (4) townhomes as the first phase of the project known as Gizella Townhomes in the City of Cape Canaveral. S (e)3; AE 1. In addition to being a licensed contractor, Mr. Murphy was a member of the City Council of the City of Cape Canaveral in 1987. S (e)4.
6. The first phase of the project apparently did not affect the sanitary sewer main referred to by the City's consulting engineers, which was along the south property line, as the sewer line for the first phase was along the west property line of the project. T 63-64.
7. At the time Mr. Murphy initially submitted his plans with the building permit application, Mr. Gunn informed him that he needed to have the plans bear the seal and signature of a licensed Florida registered professional architect or engineer. Mr. Murphy objected to being required to have an architect or engineer's signature on the plans because of the expense, but subsequently filed building plans with the engineering seal and signature of Mr. Albert Price affixed. T 29-30.
8. After the building plans were resubmitted, Mr. Gunn reviewed the plans and prepared a written set of plan review comments which were provided to Mr. Murphy. The comments identified some "discrepancies" in the plans. Mr. Murphy then met with Mr Gunn at the City Building Department to discuss these problems with the plans, which needed to be addressed prior to the issuance of a building permit. T 30-32.
9. Mr. Gunn recalled two of the "discrepancies" which needed correction prior to the issuance of the building permit. T 31-32. Mr. Gunn testified that one discrepancy was that the foundation design did not meet the minimum construction requirements required by the Standard Building Code. The second discrepancy was a lack of adherence to the conditional requirements imposed by the Planning and Zoning Board relative to an easement and sewer line arrangement that was shown for the project, running along the west side of the project. T 32.
10. Regarding the sewer line arrangement, Mr. Gunn and Mr. Murphy discussed two ways to bring it into compliance with the Planning and Zoning Board's requirements. The first way would have been to relocate the City's easement. The second way would have been to relocate the sewer line so that it would be within the easement. T 32.
11. According to Mr. Gunn, at the conclusion of this meeting Mr. Murphy was upset and made the statement that he was going to build the townhomes without a building permit. T 32-33. This statement by Mr. Murphy was overheard by Mrs. Josephine Hughes, the secretary for the Building Department, and by Mrs. Evelyn Hutcherson, the City's Code Enforcement Officer. T 217 and 258. These employees characterized the discussion between Mr. Gunn and Mr. Murphy as a "loud conversation" and as a "heated discussion." T 218-19, 258-59.
12. After that meeting between Mr. Gunn and Mr. Murphy, Mr. Gunn met with the Respondent to explain the issues pertaining to the Gizella Townhomes project. T 35. Mr. Gunn testified that he knew that Mr. Murphy was upset and he went to inform the Respondent, as City Manager, so the Respondent would know Mr. Gunn's side of the story. T 35. Mr. Gunn stated that he did this so that if Mr. Murphy were to go to the Respondent, the Respondent would have an understanding of the background of the situation. T 36.
13. Mr. Gunn showed the Respondent what the issues were and explained the sewer line problem. T 36. The Respondent acknowledged the concerns and put Mr. Gunn at ease, explaining that Mr. Murphy could be a hothead and a loudmouth. T 36, 112. The Respondent did not testify about this meeting with Mr. Gunn; however, he did testify that he had told Mr. Gunn that Mr. Murphy could be a hothead at a later meeting with Mr. Gunn on March 26, 1989. T 295.
14. Mr. Murphy later submitted revised plans which again were reviewed by Mr. Gunn. T 36. However, the sewer line was drawn at the wrong elevation and, if built according to the plans, would have been located over and above the main driveway. T 36.
15. After reviewing the revised plans, Mr. Gunn decided to file a complaint with the Department of Professional Regulation against the engineer who had signed the plans, Mr. Albert Price. T 37 and 236-37. Mr. Gunn had filed several complaints in the past against professionals licensed by the Department. T 37-38. Mr. Gunn prepared a hand-written complaint on March 25, 1987, which was typed by Mrs. Hughes on the Department's complaint form. T 45, 120, 232-33. Mr. Gunn signed the typewritten complaint on March 26th, and had it mailed to the Department that day along with the set of plans. T 103, 125. Attached to the complaint was a note from Mr. Gunn asking that the Department return the plans after the investigation was completed, as they were the only set he had. RE 3. The complaint alleged that the submittal of such improperly prepared plans showed negligence and incompetency. RE 3.
16. At or around the time Mr. Gunn reviewed the revised building plans and before he signed the building permit on March 26, 1987, he explained the elevation problem to Mrs. Hutcherson, the Code Enforcement Officer. T 262. At some time prior to the issuance of the building permit on March 26th, Mr. Gunn stated to Mrs. Hutcherson that he thought someone was out to get him through the submission of the improperly drawn plans. T 263, 267.
17. On March 26, 1987, Mr. Gunn was called to the Respondent's office regarding the Gizella Townhomes project. T 39. The Respondent testified that he had met with Mr. Murphy and he called Mr. Gunn into his office to discuss his conduct with citizens and his losing his temper. T 291-92. The Respondent denied ever ordering Mr. Gunn to issue a building permit for the Gizella Townhomes project. T 291. The Respondent testified that he told Mr. Gunn that if he was having trouble dealing with Mr. Murphy, he should contact Mr. Price, the engineer, to work out the problems. T 292.
18. Mr. Gunn testified that during the meeting the Respondent made the decision to issue the building permit for Gizella Townhomes notwithstanding the outstanding discrepancies and that he was told by the Respondent that if he proceeded any further with the objections the Respondent would consider that insubordination. T 39 and 40.
19. Following this meeting with the Respondent, Mr. Gunn had his secretary prepare the building permit for the Gizella Townhomes which he, as the Building Official, then signed. T 40-41; AE 2. Mr. Gunn did not attempt to contact Mr. Price and made no further attempt to contact Mr. Murphy. T 113. Mr. Gunn's signature on the building permit authorized the contractor to start work on the project. AE 2.
20. When Mr. Gunn returned to the Building Department, he told his secretary, Mrs. Hughes, that he was issuing the permit under protest. T 223. Mr. Gunn further stated to Mrs. Hughes that "Mr. Nicholas told him [Mr. Gunn] to give the permit to Mr. Murphy, to issue the permit." T 224.
21. Mrs. Hutcherson, the Code Enforcement Officer, heard Mr. Gunn say on the day the permit was issued that he was issuing the permit under duress. T 261.
22. The greater weight of the evidence established that the Respondent instructed or ordered Mr. Gunn, the Building Official, to issue the building permit or he would be considered to be insubordinate. Mr. Gunn's testimony was credible and consistent with the factual circumstances existing at the time of the events in question. His filing of the Department of Professional Regulation complaint indicates both that Mr. Gunn believed that the plans were improperly drawn and that he would have had no reason to approve the building permit without having been ordered to do so.
23. At the time the building permit was issued Mr. Murphy was not entitled to receive that permit, in the opinion of Mr. Gunn, who was the City Building Official having the authority to issue such a permit. T 39. Mr. Gunn is certified as a building official by the Department of Community Affairs. T 52-53. A builder who disagrees with the decision of the Building Official in Cape Canaveral has the right to appeal the decision to the City's Construction Board of Adjustments and Appeals. T 35. The Respondent had no authority to order the Building Official to issue a building permit. T 11, 35.
24. Mr. Murphy received and signed the building permit as the contractor for the Gizella Townhomes project. AE 2.
25. No evidence was presented which would contradict the testimony of the Building Official that the project was not in compliance with the City's building regulations. No evidence was presented which would show that the plans submitted by Mr. Murphy were sufficient to entitle him to receive the building permit which was issued to him on March 26, 1987.
26. The plans which were submitted to the Department of Professional Regulation were returned to the City by the Department at the time the City requested that the complaint not be investigated. T 182-83. Apparently the plans were not located by the parties, so they were not introduced into evidence at the hearing.
27. The receipt of a license or permit one is not entitled to is, in itself, a special privilege, benefit, or exemption. Therefore, by receiving the building permit for the Gizella Townhomes project on March 26, 1987, Mr. Murphy received a special privilege, benefit, or exemption.
28. The Respondent intended to secure this privilege, benefit, or exemption for Mr. Murphy, a member of the City Council. The Respondent called Mr. Gunn in after meeting with Mr. Murphy. Although he was advised by the Building Official that the plans were not sufficient under the building code to entitle Mr. Murphy to the issuance of the building permit, the Respondent ordered the issuance of the permit.
29. The Respondent used his official position to order the issuance of the building permit. Acting as City Manager, he called Mr. Gunn to his office and indicated that if Mr. Gunn persisted in his objections he would be considered to be insubordinate.
30. The Respondent acted with wrongfull intent, as his actions were intentional and beyond the scope of his authority as City Manager. The Respondent acted for the purpose of obtaining a benefit for Mr. Murphy through action which was inconsistent with the proper performance of his public duties; the Respondent had no authority to order the issuance of a building permit and there is no evidence that the Respondent had any expertise in the construction industry from which he could have concluded that it was appropriate to issue the permit.
Section 112.313(6), Florida Statutes, provides as follows:
MISUSE OF PUBLIC POSITION.--No public officer or employee of an agency shall corruptly use or attempt to use his official position or any property or resource which may be within his trust, or perform his official duties, to secure a special privilege, benefit, or exemption for himself or others. This section shall not be construed to conflict with s. 104.31.
For purposes of this provision, the term "corruptly" is defined as follows:
"Corruptly" means done with a wrongful intent and for the purpose of obtaining, or compensating or receiving compensation for, any benefit resulting from some act or omission of a public servant which is inconsistent with the proper performance of his public duties. [Section 112.312(7), Florida Statutes.]
Based on the foregoing findings of fact, the Hearing Officer recommends that the Commission on Ethics make the following conclusions of law:
1. The Respondent, Leo C. Nicholas, in his capacity as City Manager for the City of Cape Canaveral, is subject to the provisions of the Code of Ethics for Public Officers and Employees contained in Part III of Chapter 112, Florida Statutes, and is subject to the jurisdiction of the State of Florida Commission on Ethics.
2. With respect to an alleged violation of Section 112.313(6), Florida Statutes, the Advocate must establish by a preponderance of the evidence that:
a. The Respondent was a public officer or employee;
b. The Respondent used or attempted to use his official position or any property or resource which may be within his trust, or performed his official duties;
c. Such action on the part of the Respondent was for the purpose of securing a special privilege, benefit, or exemption for himself or others; and
d. Such action on the part of the Respondent was done "corruptly," that is:
(1) Done with a wrongful intent; and
(2) For the purpose of obtaining, or compensating or receiving compensation for any benefit resulting from any act or omission of a public servant which is inconsistent with the proper performance of public duties.
3. The weight of the evidence indicates that the Advocate has sustained the required burden of proof with respect to each of the above elements. As found in this order, the Respondent is a public officer who used his official position to secure a special privilege, benefit, or exemption for Mr. Murphy by ordering or directing the Building Official to issue a building permit for the Gizella Townhomes project. Finally, the Respondent acted "corruptly" within the meaning of the statute at issue.
4. Therefore, the Respondent has violated Section 112.313(6), Florida Statutes.
Based upon the foregoing findings of fact and conclusions of law, the undersigned Hearing Officer recommends that the Commission on Ethics enter a final order and public report finding that the Respondent, Leo C. Nicholas, has violated Section 112.313(6), Florida Statutes, and recommending that the Respondent be publicly censured and reprimanded and that a civil penalty be imposed upon him in the amount of one thousand five hundred dollars ($1,500.00).
ENTERED and respectfully submitted this _____ day of January, 1989.
Karen M. Margulies
Hearing Officer and Member
Commission on Ethics
Copies furnished to:
Mr. R. Frazier Solsberry, Attorney for Respondent
Mr. Craig B. Willis, Commission Advocate
Ms. Helen S. Filkins, Complainant
The following are rulings on the proposed findings of fact submitted by the parties:
Advocate's Proposed Findings of Fact
9. Accepted, except for the last sentence, which is not supported by the evidence.
11. Accepted, except that there is insufficient evidence to conclude that the sewer line was drawn within the easement.
13. Accepted, except as to the finding regarding Mr. Eckley, whose testimony was contradictory about when he learned of an elevation problem. T 202, 210-12.
Respondent's Proposed Findings of Fact
3. Rejected; the first part is irrelevant, and the second part is not based on record evidence.
4. Rejected. Although there is evidence that a preliminary plat and a site plan were submitted for the Gizella Townhomes project, there was no evidence that Mr. Murphy filed them or that he had any involvement in the project aside from being the general contractor.
8. Accepted to the extent reflected in paragraphs 5 and 6.
12. Accepted to the extent reflected in paragraph 11.
14. Accepted to the extent reflected in paragraph 13; otherwise, rejected as unsupported by the evidence.
16. Accepted to the extent that Gunn met with the Respondent after preparing the DPR complaint; otherwise, rejected based on T 130-131 and the evidence supporting the findings in paragraph 22.
17. Accepted, as noted in paragraph 19.
19. Rejected as not based on the greater weight of the evidence, except to the extent reflected in paragraph 19.
20. Rejected as irrelevant, except to the extent reflected in paragraph 19.
22. Accepted to the extent reflected in paragraphs 20 and 21; otherwise, rejected as not supported by the testimony.
23. Accepted to the extent reflected in paragraph 16; otherwise, rejected as not supported by competent evidence.
24. Rejected as not supported by the testimony, except to the extent found in paragraph 15.
25. Rejected; Mr. Eckley's testimony was contradictory about when he learned of an elevation problem. T 202, 210-12.
26-28.Rejected as being irrelevant.
29. Rejected as not supported by the greater weight of the evidence.
30. Rejected as being irrelevant.
31. Rejected as not supported by the greater weight of the evidence.
32. Rejected as being immaterial.
33. Rejected as not supported by the greater weight of credible evidence.
34. Rejected as irrelevant.