STATE OF FLORIDA
COMMISSION ON ETHICS
In re CHARLES W. FLANAGAN, ) Complaint No. 87-95
RECOMMENDED PUBLIC REPORT OF HEARING OFFICER
This matter was initiated through the filing of a complaint by the Complainant, Mike Rubinstein, who alleged that the Respondent, Charles W. Flanagan, violated various provisions of the Code of Ethics for Public Officers and Employees contained in Part III of Chapter 112, Florida Statutes. Following a preliminary investigation, the Commission on Ethics found probable cause and ordered a public hearing on the following issues (organized for the purposes of this order as follows): (1) whether the Respondent, as Mayor of the City of Pembroke Pines, violated Section 112.313(4), Florida Statutes, by accepting a satellite dish antenna and its installation from Storer Cable when he knew, or with the exercise of reasonable care should have known, that it was provided to influence a vote or other action in which he was expected to participate; (2) whether the Respondent violated Section 112.313(6), Florida Statutes, by having Storer Cable supply and install the satellite dish antenna at his residence; (3) whether the Respondent violated Section 112.313(6), Florida Statutes, by using his official position to have City employees prepare and process an application for a building permit for the antenna; and (4) whether the Respondent violated Section 112.313(6), Florida Statutes, by using his official position to secure the necessary permit for installation of the satellite dish antenna without fullycomplying with City requirements.
A public hearing was held on May 18 and 19, 1989, in Hollywood, Florida, before the undersigned member of the Commission on Ethics serving as Hearing Officer. Craig B. Willis, Assistant Attorney General, appeared as Advocate for the Commission, and Jane W. Moscowitz, Esquire, appeared on behalf of the Respondent.
At the public hearing the Advocate called the following witnesses: Charles Flanagan, Woodward Hampton, Michael Scott, John Koebel, Charles Blankenship, Melissa June, Tad Dooney, Eileen Tesh, Sam Sambataro, Charles Dodge, Harry Hetler, Maryanne Sturges, and William Chouinard. The Respondent testified and called the following witnesses: Steven Josias, Steven Warnken, Miguel Venero, Dennis Kenner, Charles Dodge, Alex Fekete, Margaret Bosarge, and Jeffrey P. Wasserman. Pursuant to agreement between the parties the depositions of Jeffrey Carlson, James Boso, and Terry Bienstock were received in evidence in lieu of their live testimony. The parties filed a prehearing stipulation and various exhibits presented by the parties were received in evidence.
The parties have submitted proposed findings of fact and conclusions of law, as well as written closing arguments, all of 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 (consisting of three volumes, not consecutively numbered) are denoted as "T1," "T2," "T3," followed by the appropriate page number. References to the prehearing stipulation filed by the parties are made by "Stip.;" references to the depositions of Jeffrey Carlson, James Boso, Terry Bienstock, and Charles Flanagan are made by the last name of the deponent, followed by the page number; 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).
From the evidence presented at the hearing, the undersigned Hearing Officer finds as follows:
1. The Respondent, Charles W. Flanagan, serves as the Mayor of the City of Pembroke Pines, and has served in that capacity at all times material to this complaint. Stip.
2. The Charter of the City of Pembroke Pines provides for a "weak mayor" system of government under which the Mayor is elected at large, presides at City Commission meetings, functions as a member of the City Commission, but generally has no administrative duties. The City Commission is authorized to appoint and remove the City Manager, the City Attorney, and the Finance Director. The City Manager is responsible for the administration of City government and is authorized to hire and fire all other personnel of the City. As Mayor, the Respondent has no authority to hire, fire, or set conditions of employment for City employees except as a member of the Commission. RE 1; T1 92-93.
The Respondent, Storer Cable, and Its Personnel
3. During 1986 and until early 1988, Storer Cable T.V. of Florida, Inc., was the sole and exclusive franchise holder for cable television services in the City of Pembroke Pines. Stip.; T3 13-14, 102-03. Storer Cable was for sale during 1987, a fact which was known by the Respondent. Boso, 21-22; T1 44. The value of a cable television company normally is based on its operating profit times a factor of 10 to 15 percent, but if the franchise of a cable company is threatened, the marketability of the company would be affected. Boso, 22, 24.
4. In the fall of 1986, the City of Pembroke Pines was considering amending its cable television franchise ordinance. This legislative action was contemplated because recent federal regulations and decisions required municipalities to permit other cable companies to compete with existing franchise holders. Stip.; T3 6. But for changes in federal and State law, Storer Cable's exclusive franchise would have continued into the 1990's; because of the change in the law, Storer's franchise became non-exclusive. T3 6; Boso, 25-27.
5. On October 30, 1986, James Boso, the Regional Vice President of Storer Cable, sent a letter to the Respondent urging that the City adopt a new cable television franchise ordinance and enclosing a draft ordinance prepared by Storer's attorney. AE 9; Bienstock, 8. The Respondent forwarded the letter to the City Attorney, who was engaged in drafting a new cable television franchise ordinance and who had solicited information from interested parties. T3 7-8. Two other cable television competitors, Telesat and CCB/CCI, also submitted proposed language for the ordinance. T3 8. The Respondent did not draft the language of the proposed ordinance. T3 8.
6. On February 4, 1987, the City Commission adopted a new cable television ordinance. The ordinance provided procedures for considering applications for cable franchises, specified the contents of applications, provided criteria for evaluating applications, and described the requirements placed upon franchise holders for the delivery of cable services to City residents. Under the ordinance, beginning on June 1, 1987 the City would publish its solicitations for franchise applications biennially and interested parties would have 60 days from the date of publication to file applications. AE 10; Stip.
7. When Mr. Boso (of Storer Cable) was hospitalized for approximately two weeks in March, 1987, the Respondent visited him at the hospital. Boso, 4-5. At that time Boso informed the Respondent that Storer was negotiating to add a channel to their cable service which would include the telecasting of Boston Red Sox baseball games. Boso, 5-6. The Respondent is a Red Sox fan and was interested in viewing their games; Boso was aware of this. Stip.; Boso, 5.
8. The Respondent and Boso were friends who played golf together; Boso was involved with the local Little League, as was the Respondent; the Respondent nominated Boso for a community involvement award which the Respondent had received earlier. T1 85; Boso, 4.
9. Approximately two months after their March conversation in the hospital, the Respondent asked Boso why the Red Sox were not on cable yet, and Boso told the Respondent that he had not been able to negotiate a contract. Boso informed the Respondent that if he wanted to view Red Sox games he would have to install a satellite dish antenna at his home. Boso offered to see whether a small antenna could be used to receive Red Sox games off of one satellite and, if so, whether Storer had any. Boso, 6-7.
10. In late July of 1987 the Respondent talked with Jeffrey Carlson, the Operations Manager for the Dade/Broward Storer cable system, at a Florida Cable T. V. Association conference at Bonaventure, Florida. The Respondent asked Carlson what had happened about receiving the Red Sox on Storer's system and what had become of the dish he had discussed with Boso. Carlson stated that he did not know but that he would follow up on the situation. Carlson, 4-6.
11. Shortly afterward, Carlson discussed the situation with Boso, determined that Storer had no spare dishes, and told Boso that if the Respondent needed or wanted a dish, then one would have to be purchased. Carlson, 6-7. Boso told Carlson to tell the Respondent what a dish would cost and that it might be expensive, and to ask him whether he still wanted to proceed. Carlson, 7; Boso, 8, 33. The Respondent did want an antenna installed. Carlson, 7. Carlson's understanding was that the Respondent wanted whatever equipment was necessary to deliver the one specific channel. Carlson, 9.
12. On or about August 1, 1987, CCB/CCI applied informally with the City Manager for a cable television franchise for the western area of the City. RE 10. Shortly afterward, CCI's attorney prepared the formal application for a franchise. T3 91-92. Telesat also filed an application for a cable television franchise in Pembroke Pines in August or September of 1987. T3 11. Sometime prior to this, the Respondent had met with representatives of Telesat and CCI to discuss their potential franchise applications in the City. T1 49-50; Flanagan, 21. The Respondent informed them that he was leaning toward their providing service throughout the City and that he was happy with the service Storer had been providing. T1 50-51. The Respondent also had expressed support for the entry of competition into the City. T3 79.
13. Storer purchased the satellite dish antenna which was installed at the Respondent's home and paid for it by check dated August 4, 1987. RE 2.
14. On August 6, 1987, the Respondent met at his home with Carlson and Mike McCracken, the technical manager for Storer Cable, to discuss the details for the installation of the satellite dish. Stip. According to Carlson and the Respondent, the Respondent agreed to pay for the dish all at once, by check. Carlson, 9; T1 85-86.
15. The Respondent testified that he knew McCracken slightly through the local Little League, where the Respondent had been president and a coach and McCracken had been a coach. T1 85.
16. On August 7th (a Friday) McCracken set the pole for the dish. Stip; Flanagan, 24-25. The satellite dish was installed by McCracken on the following Monday, August 10, 1987, along with enough equipment to allow reception of the channel broadcasting Red Sox games. T 87; Stip. That day, the Respondent paid McCracken $50.00 for his labor. T 61, 86; Flanagan, 25. The Respondent testified that he agreed to pay McCracken $10.00 per hour for his labor. T1 62.
17. On August 20th, after reading an article in a local newspaper alleging that he had installed the satellite dish antenna without a City permit, the Respondent contacted Carlson and asked him to provide an invoice. Carlson, 17; Flanagan, 30; T1 60. That evening, McCracken delivered an invoice to the Respondent and the Respondent wrote a check to Storer (#176) for the amount invoiced, $792.70. AE 6, AE 5; T1 59-60. The Respondent then wrote a check in the amount of $125.00 to McCracken (#177) for his labor, but backdated that check to August 13th because of his embarassment over the newspaper article. AE 5; T1 61.
18. As originally installed by McCracken, the equipment did not provide satisfactorily clear reception of Red Sox broadcasts. T1 87; Flanagan, 9, 26. Because of this and because the Respondent also wanted to receive "blacked-out" Miami Dolphin games, McCracken purchased and installed additional equipment for the Respondent that enabled him to receive more broadcasts. Flanagan, 11-12; Carlson, 16-19. The Respondent paid an additional $700.00 to McCracken by check (#180) dated September 12, 1987. AE 5; Flanagan 11-12. The final system was completed about a month after the dish was installed. T1 86.
19. Carlson testified that Storer did not receive a profit from the installation of the satellite dish, and it was clear from the testimony that the Respondent was expected to pay only for the costs involved in acquiring and installing the antenna and related equipment. Carlson, 21-22. Although it is not clear from the evidence presented whether the Respondent paid any State sales tax to Storer or McCracken, the invoice presented to the Respondent lists amounts for an antenna and a feedhorn and then adds five percent to get the total paid by the Respondent. AE 6. In addition, there was no evidence of whether Storer or McCracken paid sales tax when the equipment was purchased.
20. Ultimately, the Respondent received the following equipment: a Saturn 10 foot dish antenna; a Chapparral Polarotor 1 Feedhorn; an amplifier, LNA 65 degrees; a block down converter, 70 MHz; a STS SR110 receiver; a STS SR 110 standard remote; a 24" Houston tracker actuator; cable installation; and programming. T3 104. He paid McCracken and Storer a total of $1,667.72, according to the testimony and exhibits. In addition, he paid two checks to the City for permit fees, totaling $144.80. AE 5. The total cost to the Respondent, therefore, was $1,812.52. The Respondent testified that he paid $1,837.52, but he did not explain why his total was $25 higher than the amounts described above. T3 104-05.
21. Both the Advocate and the Respondent presented testimony and exhibits relating to what a satellite dish dealer would have charged for the antenna system which the Respondent acquired in August and September of 1987. There was no evidence of any actual sales of the identical system during that time period. One witness testified that he purchased a similar system, installed, in the fall of 1987 for $2,000.00, a figure which apparently did not include taxes or the permit fee. RE 16A; T3 39-44. Several satellite dish antenna dealers testified about the prices they would have charged during the applicable time period, based to varying degrees on wholesale price lists and their recollection of prices at that time. From this testimony, it appears that the Respondent could have purchased a comparable system, installed, at that time for prices ranging from about $1,900 to $2,750, including sales tax but not including a permit fee. T1 170-195; T3 16-59; AE 1; RE 17, 18A, & 18B.
22. Storer had developed the eastern part of the City, investing heavily in the capital expenditures required to provide cable service to this area. T3 87; Boso, 29-30. Effective October 1, 1987, the Florida Legislature adopted Section 166.046, Florida Statutes, which was intended to give cable television companies a "level playing field" by prohibiting a municipality from granting a cable television franchise in an area which overlapped an existing franchise area on terms more favorable or less burdensome than those in the existing franchise. Chapter 87-62, Laws of Florida; Bienstock, 4-5.
23. Telesat, which originally applied for a franchise to serve the entire City, changed its application to encompass only the western portion of the City in November or December of 1987. T3 11. CCI only applied for a franchise for the western part of the City. T3 86-88. Telesat changed its application when the City Commission made it clear that it would prohibit "cherry picking" by Telesat by requiring Telesat to build out the entire eastern sector of the City (thus requiring Telesat to make the same capital investment in the eastern sector as had Storer). T3 9, 89. There was no evidence that the Respondent was more responsible than any other member of the City Commission for the change in Telesat's requested franchise area. T3 80-81, 89-90.
24. Storer did not oppose the franchise applications of CCI and Telesat. Boso, 12. Storer's position was that if another company wished to compete in its franchise area, the company should be required to do what Storer had to do under its franchise. Bienstock, 6-7.
25. In early 1988 the City Commission voted unanimously on the award of cable television franchises. T3 102-03, 107. Storer received a franchise for the entire City; CCI and Telesat received franchises to serve the western part of the City. Boso, 29; T3 89. There was no evidence that the Respondent exercised any favoritism toward Storer during City Commission discussions regarding the entry of competitive cable systems.
26. Boso testified that Storer provided the antenna for the Respondent because he felt an obligation to help him receive the Red Sox games, having "enticed" the Respondent at the hospital with the opportunity to view them. Boso, p. 9. Carlson testified that he would have provided the same services for any other customer who was that interested and that adamant about getting a specific channel that Storer didn't carry. Carlson, 12, 22. Both Carlson and Boso denied that it was provided to influence the Respondent and denied ever discussing among themselves that helping the Respondent would be good for Storer. Boso, 13; Carlson, 13.
The Respondent, the City, and City Personnel
27. Section 155.079 of the City's Zoning Code, adopted on November 5, 1986, limits the location, height, size, and color of satellite dish antennas within the City and requires that each antenna be screened and anchored in accordance with City code requirements. In addition, no satellite dish antenna is to be constructed without a permit having been obtained. The proposed plan for screening the antenna must be reviewed and approved by the City Building and Zoning Department, with the Planning and Zoning Board having the right to approve the proposed installation. The ordinance requires: that an application for a permit be made to the Building Official; that a $30.00 fee accompany the application; that plans showing existing structures, required minimum setbacks, the location of the antenna, and screening of the antenna, together with the dimensions of relevant items, accompany the application; that a certificate of insurance for the antenna be provided; and that adjacent property owners will be mailed a notice informing them of the Planning and Zoning Board meeting at which the application will be considered. The ordinance specifies that the Planning and Zoning Board reviews the proposed installation to insure that aesthetics are served, but notes that minor deviation may be justified when surrounding features are considered. AE 2.
28. At the time the antenna was installed, the Respondent had not applied for a building permit, as required by Section 155.079 of the City's Zoning Code. Stip.
29. On August 10th, the day the satellite dish was installed, the Respondent had his secretary, Maryanne Sturges, prepare, during working hours and using City equipment, a statement to be signed by his neighbors indicating that each had no objection to the installation of his satellite dish. T1 79-80, T3 69-70. His secretary testified that this would have taken about a minute and a half to prepare. The Respondent was aware this was solely for his own personal business. T1 80. The Respondent took copies of the statement to his neighbors to obtain their signatures. Flanagan, 33-34. Six of the ten signed statements are dated August 10, 1987; the remaining four are undated. AE 8. The Respondent testified that he typed the date on these letters and that the date was the day on which he obtained the signatures. T3 108; Flanagan, 33-34.
30. On Tuesday, August 11, 1987, the day after the satellite dish was installed, the Respondent told the City Manager, Mr. Woody Hampton, that he had installed a satellite dish and could receive Boston Red Sox games. The City Manager replied that he hoped the Respondent had gotten a permit. According to the City Manager, the Respondent said something like "My God, I forgot to do that." T 110-11.
31. The Respondent stated that he knew he had to have a permit from the very beginning and that he told the City Manager that he realized he had to get a permit. Flanagan, 9, 26. The Respondent told the City Manager to "take care of it" or "handle it", meaning the permit, so that he would not have to get involved with any of the City's department heads or employees. T 75-76, 87-88; Flanagan, 26. Based on this statement, on the Respondent's subsequent actions, and on the Respondent's inability to remember virtually any of the details surrounding the issuance of his permit, it is clear that the Respondent initially delegated all responsibility for securing the permit to the City Manager.
32. The same day, Hampton called Sam Sambataro, the City Building Official, and asked about the procedure to get a satellite dish permit. T1 111. Sambataro told Hampton that those permits would be handled by Mike Scott, the City Planner. Hampton then called Scott, advised him that the Respondent had installed a dish without a permit, told him that they needed to get the process going, and asked Scott to handle it. T1 111-12. Scott told Hampton that he would take care of it. T1 111-12. Hampton told the Respondent that Scott's department would handle it. T1 112.
33. The City's satellite dish ordinance requires the payment of a fee and the submission of an application form, plans and specifications, and a certificate of insurance. AE 2. What was done regarding the completion of an application form and the fee payment during the time from August 11th to August 19th is far from clear. There was not sufficient credible evidence presented to determine whether the Respondent initially completed an application form or whether he submitted a check for payment of the fee during this period.
34. On August 17, 1987, the City received a complaint over the telephone about a satellite dish being installed without a permit. T2 51-52, 57; AE 11. The Code Enforcement Officer, Mr. Harry Hetler, realized that the address listed on the complaint was the Respondent's residence, called the Building Department, and learned that no permit had been issued. T2 53-54. While leaving the building, he encountered the Respondent and informed him of the complaint. T2 54. He discussed the aspects of the ordinance with the Respondent and they went to the Respondent's house, where he measured the setbacks and observed the height of and the screening for the antenna. T2 54-55. When he returned, he advised the Building Official, Sambataro, of the situation. T2 12-13, 55.
35. On August 19th an application form in the Respondent's name appeared on the desk of the Building Official, Sambataro; the application had been approved by the Planning Department. T2 18-19. Sambataro contacted John Koebel (spelled "Cable" in the transcript), who was the Plans Examiner in the Planning Department. T2 18-19; T1 150. Sambataro advised Koebel that the City's new ordinance involved several items which were needed and sent the application back to the Planning Department. T2 19. Koebel then destroyed the initial permit application and completed a new form, on which he listed in the "remarks" section of the form that the application needed "signature, processing fee; survey, concealment, Specifications of Dish (Plans), location on site as to 155.079 Ordinance". AE 3B; T1 159-63, 167; T2 23. Thomas Dooney, the Assistant City Planner and Koebel's supervisor at the time, then indicated on the form that the zoning portion of the application was denied on August 19, 1987. AE 3A, 3B; T1 160, 199.
36. The following day, August 20th, after reading the newspaper story about his satellite dish being erected without a permit, the Respondent, as Mayor, wrote the City Manager a memorandum. T1 70-75. In the memorandum, the Respondent stated that he was "quite disturbed at the handling" of his permit for a satellite dish, in particular about the apparent lack of knowledge and understanding of the issuance of such permits, as he still was not sure whether Scott's office or Sambataro's office was responsible for this type of permit. While acknowledging that he had to bear "some of the blame" for installing the dish "prior to the complete issuance" of his permit [emphasis in original], the Respondent stated that his permit "has sat along with the check for a number of days." The Respondent's memorandum asked the City Manager to have the various department heads put in writing exactly what steps must be taken and requested that the names and addresses of all applicants for satellite dish permits, along with what steps were required of them, be supplied to him no later than Friday, August 21st at 4:30 p.m. AE 4.
37. On August 20th, the City Manager told Mr. Charles Dodge, the Assistant City Manager, to check on the status of the Respondent's permit. T1 114. Following up on the processing of an application is a normal part of Dodge's responsibilities. T2 35-36. Dodge checked with Koebel, learned of the items needed for the application, and then told the Respondent what those items were. T2 35-36.
38. From that point until August 27th, the letters signed by the Respondent's neighbors and at least one of the two permit fee checks written by the Respondent to the City were submitted. In addition, the Respondent signed the application form during this period of time (it was notarized by the Deputy City Clerk at some time after he signed it). AE 3A, 3B; AE 5; AE 8. No plans or certificate of insurance were provided. T1 137-138; T2 25, 27. Each of the permit fee checks was in the amount of $72.40. Check # 182 was dated August 24, 1987 and notes, "permit fee double." Check # 178 is dated August 12, 1987; although the Respondent could not recall the circumstances surrounding his writing of that check and he admitted backdating check # 177 on August 20th, he did not recall having backdated this permit fee check. T1 61, 68, 75.
39. On August 27, 1987, as part of its regular meeting, the City Planning and Zoning Board approved the issuance of a building permit for the Respondent's satellite dish antenna. Stip.; AE 7. The Respondent was not present at that meeting. The City Planner, Scott, presented the Respondent's application to the Planning and Zoning Board although it was incomplete. T1 137-139. While it was the City Planner's practice to advise the Board of any omissions or conditions, he represented to the Board that the application was complete and that "all requirements have been met." T 146-47; AE 7. Scott often presents applications to the Planning and Zoning Board. T1 143. The Board has approved applications having minor omissions, leaving it to the discretion of Scott's office to see that the conditions are complied with or the omissions are corrected. T1 145-47.
40. The permit application is marked "approved" on August 28, 1987. AE 3B. After the application was approved by the Planning and Zoning Board on August 27th, it was sent to the Building and Zoning Department, at which time it lacked a survey and a certificate of insurance. T2 25. According to Sambataro, the Building Official, plans were supplied after the application was received by his Department and someone in his Department at some time after the permit was approved checked with State Farm Insurance, who said that the satellite dish was covered under the Respondent's homeowner's policy. T2 25, 27; AE 12.
41. Although the application was incomplete at the time of the Planning and Zoning Board's approval, no evidence was presented indicating that the Respondent would not have been eligible for a permit because of an inability to comply with any of the substantive requirements of the ordinance. In other words, there was no evidence which would have showed that the Respondent's antenna failed to meet the setback, screening, height, color, size, or insurance requirements of the ordinance.
42. Although it appears that the Respondent's permit was approved expeditiously, once some of the required information was submitted, the evidence presented did not provide a sufficient basis from which to determine the average waiting period for a satellite dish permit. RE 16.
43. Both the Respondent and the City Manager testified that they did not believe that it was proper under the City Charter for the Respondent to contact anyone with the City other than the City Manager in order to secure the permit, and that this was why the Respondent asked the City Manager to take care of the permit. T1 88-92, 97-105, 117-19, 120-21. However, this explanation is not credible in light of further testimony of the Respondent, the language used in the Charter, the City Manager's prior memoranda to department heads on the subject, and the subsequent actions of the Respondent and the City Manager.
44. First, the Respondent testified that under the Charter he could make an inquiry about his permit and find out what was incomplete about it. T1 98-99. Secondly, the Charter [in Section 3.07(b)] states:
Interference with administration. Except for the purpose of inquiries and investigations, the Council or its members shall deal with City officers and employees who are subject to the direction and supervision of the Manager solely through the Manager, and neither the Council nor its members shall give orders to any such officer or employee, either publicly or privately. Nothing in the foregoing is to be construed to prohibit individual members of the Council from closely scrutinizing by question and personal observation, all aspects of City government operations so as to obtain independent information to assist the members in the formulation of sound policies to be considered by the Council. It is the express intent of this Charter, however, that the recommendations for improvement in City government operations by individual Council members be made to and through the City Manager, so that the Manager may coordinate efforts of all City departments to achieve the greatest possible savings through the most efficient and sound means available.
Notably, this provision prohibits giving "orders" to City employees, but excepts "inquiries" and does not prohibit questioning and observing any aspect of City government operations. Not only does the provision not expressly prohibit a City Commissioner from dealing with City employees when, as a private citizen in a private matter, he must approach City government for assistance or a decision, but also it does not even address such situations. RE 1.
45. Thirdly, the City Manager's 1982 and 1985 memoranda to department heads, copies of which were provided to Commission members, stated that department heads should not contact Commission members to discuss policy or administrative matters and should not lobby Commission members; requests for routine information not involving research or reports or taking care of a project or problem were to be answered courteously. RE 13. The memoranda do not expressly address how a Commission member should approach City employees about a private matter, but they expressly allow requests for routine information, which could include information about the procedures and information needed for a satellite dish permit and about the status of a permit application. RE 13.
46. Finally, the Respondent's and the City Manager's actions did not comply with their stated understanding of the Charter provision. According to the City Manager's interpretation, all communications between the City and the Respondent about his permit should have been funnelled through the City Manager in order to avoid the Respondent's having any contact with other City employees. Instead, the City Manager testified, he delegated responsibility for the permit to Scott and had no further direct involvement with the permit or detailed communications with the Respondent about what was needed for the permit, other than asking Dodge to inquire about the status of the permit. T1 112-15. It was clear that someone had to contact the Respondent in order to have him complete and sign a permit application, pay the fee, and provide the requisite information. Whatever contact occurred between the Respondent and City employees in connection with these matters (at least some contact involved the Assistant City Manager) was not between the Respondent and the City Manager.
Section 112.313(4), Florida Statutes, provides as follows:
UNAUTHORIZED COMPENSATION.--No public officer or employee of an agency or his spouse or minor child shall, at any time, accept any compensation, payment, or thing of value when such public officer or employee knows, or, with the exercise of reasonable care, should know, that it was given to influence a vote or other action in which the officer or employee was expected to participate in his official capacity.
Section 112.313(6), Florida Statutes, provides:
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.
Based on the foregoing findings of fact, the undersigned Hearing Officer recommends that the Commission on Ethics make the following conclusions of law:
1. The Respondent, Charles W. Flanagan, in his capacity as Mayor of the City of Pembroke Pines, is and was at all times material to this proceeding subject to the provisions of the Code of Ethics for Public Officers and Employees, Part III of Chapter 112, Florida Statutes, and subject to the jurisdiction of the State of Florida Commission on Ethics.
(1) Acceptance of Antenna and Installation from Storer
2. With respect to an alleged violation of Section 112.313(4), 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 accepted some compensation, payment, or thing of value;
c. The compensation, payment, or thing of value was accepted with either
(1) the Respondent's actual knowledge that it was given to influence a vote or other action in which he was expected to participate in his official capacity; or
(2) the Respondent's constructive knowledge (based upon the exercise of reasonable care under the circumstances) that it was given to influence a vote or other action in which the Respondent was expected to participate in his official capacity.
3. Section 112.313(4) addresses the question of whether a public official should accept something of value that is being offered to him. It answers this question by directing the official to exercise reasonable care to look at the circumstances and determine whether the thing of value is being offered to influence his expected actions in an official capacity.
4. It was clear after February of 1987, when the City adopted its new cable television franchise ordinance, that the Respondent would be called upon to vote and act in his official capacity regarding the award of one or more franchises to Storer and other cable television providers. The ordinance created a 60-day window beginning in June of 1987 within which cable companies could file applications for franchises to serve City residents, and interest had been expressed by at least one company other than Storer. Therefore, a key element of Section 112.313(4) was present, because the Respondent was expected to participate in his official capacity in a City decision that would affect Storer's interests.
5. However, there was no proof that the Respondent had been informed by Boso or by anyone else that the satellite dish antenna, the attendant equipment, and its installation were offered to him with the intent to influence his actions regarding the City's upcoming award of cable television franchises for Storer and its competitors. No one testified that any Storer employee ever mentioned the antenna in connection with Storer's franchise. Therefore, it was not proven that the Respondent knew that anything was given to influence his official action.
6. Although the circumstances regarding the City's upcoming franchise decision suggest a possible motive for Boso to offer the antenna and its installation to the Respondent, the overall circumstances surrounding the transaction were not such that the Respondent should have known with the exercise of reasonable care that the antenna, equipment, and installation were being offered to influence his official action.
7. First, the transaction originated in the discussion between the Respondent and Boso about Storer Cable carrying Red Sox games. The relationship between the Respondent and Boso (who authorized the purchase of the antenna and its installation) was not simply that of a city official and a major employee of a company that was franchised by the city. Although it was not clear from the testimony exactly how close the two were, it was shown that they were friends who played golf together on several occasions and who were close enough that the Respondent visited Boso when he was hospitalized. The Commission on Ethics previously has found that Section 112.313(4) would not be violated when the existence and nature of a prior relationship between the public officer and the donor would indicate that there was no intent to influence official action. See CEO 78-90 and CEO 79-22. Here, the prior relationship between the Respondent and Boso is a significant factor indicating that Boso's actions were motivated more by his personal relationship with the Respondent than by the Respondent's official capacity and the upcoming cable franchise vote.
8. Secondly, the circumstances of the transaction indicate that it evolved gradually, over a period of approximately five months from the time Boso initially raised the possibility that the Respondent might be able to view Red Sox games on cable. This was not simply a gift "out of the blue." Boso did not offer originally the complete system which the Respondent eventually obtained. Boso's statement about feeling obligated to assist the Respondent in viewing Red Sox games because he initially "enticed" the Respondent appears reasonable. It does not appear that there was any sense of urgency on the part of Boso to comply with the Respondent's slightest wish; rather, the Respondent repeatedly had to take the initiative. Certainly, under the circumstances presented, it cannot be concluded that but for the upcoming franchise decision, the Respondent would not have been offered the antenna, equipment, and installation under the terms they were provided.
9. Thirdly, the Commission advised in CEO 80-27:
Assuming the donor is in a position to be benefited by the officer's or employee's action, the officer or employee should weigh the value of the thing received against the ostensible purpose for its being given. The larger its value, the more difficult it should be to justify its being given for any reason except to influence.
Here, the Respondent was not simply given the antenna system. Nor was the value of what he received so disproportionate to the amount he paid that it can be concluded that he should have known that he was provided with a significant benefit, the value of which was out of proportion to his personal relationship with Boso.
10. Finally, a difficult question is presented as to whether and to what extent the Respondent was given or accepted a "thing of value." From the time Storer informed him that it would not be possible to receive Red Sox games with a small, spare dish and the Respondent decided that he wanted an antenna installed, all the testimony indicated that he agreed to pay for what he received. It appears that the Respondent ended up paying slightly less for the antenna system than he would have had to pay a satellite dish dealer for a comparable system, assuming that he had shopped around and had taken the lowest price. The difference in price appears attributable to the fact that the Respondent paid only the costs of the system to Storer and McCracken, an amount which apparently did not include any mark-up for overhead or profit. However, even assuming that this difference in cost constituted a "thing of value," the circumstances surrounding the transaction were not such that the Respondent should have known with the exercise of reasonable care that the antenna, equipment, and installation were provided under the terms offered in order to influence his official action.
11. Accordingly, the Respondent did not violate Section 112.313(4), Florida Statutes, by accepting the satellite dish antenna and its installation from Storer Cable and its employees.
(2) Use of Position to Secure Benefit from Storer
12. The second issue is whether the Respondent violated Section 112.313(6), Florida Statutes, by having Storer Cable supply and install the satellite dish antenna at his residence. 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 done with an intent to secure 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) done for the purpose of benefiting from some act or omission which is inconsistent with the proper performance of public duties.
13. It was not proven by a preponderance of the evidence that the Respondent used his official position to have Storer supply the antenna and to have Storer's employee provide installation and obtain related equipment. Again, the circumstances involving the personal relationship between the Respondent and Boso and the gradually evolving nature of the transaction are significant, as is Boso's statement that he felt obligated because he had "enticed" the Respondent originally with the possibility of viewing Red Sox games.
14. In addition, there was no evidence that the Respondent mentioned his official position or the upcoming franchise award during any of his discussions about the antenna with Boso or other Storer personnel. Nor does it appear that any of the discussions arose in the context of the performance of the Respondent's official duties, for example, at a City Commission meeting. This lack of an explicit tie with an official's authority or public position does not absolutely negate the possibility that an official could be said to have used his position by requesting something of personal value from someone who he knows is not in a position to refuse because of the official's authority over that person. Here, however, the totality of the circumstances discussed above make it impossible to conclude by a preponderance of the evidence that the Respondent used his official position to secure the antenna system at the price he paid.
15. Therefore, the Respondent did not violate Section 112.313(6), Florida Statutes, by having Storer Cable and its employee supply and install the satellite dish antenna system at his residence.
(3) Use of Position to Have City Employees Prepare and Process
16. The third issue presented is whether the Respondent violated Section 112.313(6), Florida Statutes, by using his official position to have City employees prepare and process an application for a building permit for the antenna.
17. The Respondent used his official position in connection with his permit application on three occasions. First, he used his official position on August 11th when he told the City Manager to "take care of" or "handle" his permit application. Secondly, the Respondent used his official position when he prepared and sent his August 20th memorandum to the City Manager. Although the memorandum ostensibly concerns the "permitting process," it is apparent from the language and tone of the memorandum that the Respondent was formally notifying the City Manager that he was greatly disturbed that it was taking so long to issue his permit. Thirdly, he used his official position to have his secretary prepare the letters to be signed by the Respondent's neighbors.
18. With respect to his secretary's preparation of a statement which would be signed by the Respondent's neighbors, the Respondent clearly gained a special privilege or benefit through not having to expend his private time and effort to have such a statement prepared. As the Respondent was aware that this was strictly for a private purpose, he acted with wrongful intent and for the purpose of obtaining a benefit resulting from an act which was inconsistent with the proper performance of his public duties. Accordingly, the Respondent violated Section 112.313(6) by this action.
19. With respect to the first two actions of the Respondent described in paragraph 17, however, the evidence supplies very little reliable information about the extent to which City employees assisted the Respondent in preparing and processing the permit application, thereby securing for him a special privilege, benefit, or exemption. In the final analysis, it cannot be said that the Respondent delegated the entire matter to the City Manager and later was granted the permit without any personal involvement whatsoever. It was not shown who completed the initial application that was destroyed by Koebel. Koebel filled out the second application, had it marked "denied," and listed the necessary requirements for the permit. Dodge checked on the status of the permit and informed the Respondent what was needed to process the application. At that time, the Respondent needed to sign the application, pay the appropriate fee, submit plans, and provide a certificate of insurance. The Respondent eventually signed the application and had it notarized, paid a double fee, and submitted his neighbors' consent letters. It was not shown who prepared and submitted the plans, but someone from the Building and Zoning Department did contact an insurer after the permit was approved to learn that the Respondent's homeowner's insurance covered the antenna. Therefore, of the necessary steps to secure the permit it was shown that City employees were responsible only for filling out the second application form and for contacting the insurer.
20. Koebel testified that he completed the second application, which was a matter of filling in 11 lines on the application form, regarding such information as the Respondent's name, address, and that a satellite dish permit was being sought. Koebel also testified, reasonably, that they had assisted citizens in filling out applications on many occasions. T1 162. To the extent that the assistance provided was a normal or routine part of City employees' duties that would be provided to other citizens who need assistance in preparing a permit application, such action would not have constituted a special privilege, benefit, or exemption. In addition, Koebel's action in completing the second application form resulted from the erroneous approval noted on the first application form, rather than from any order given by the Respondent to the City Manager or other use of the Respondent's position. Similarly, it was not shown by a preponderance of the evidence that the action of the unidentified person in the Building and Zoning Department who checked on the Respondent's insurance coverage after the permit was issued resulted either from the Respondent's initial instructions to the City Manager or from his August 20th memorandum to the City Manager.
21. Dodge, the Assistant City Manager, checked on the status of the Respondent's application and advised him of the information needed to obtain a permit. This action, although resulting from the Respondent's memorandum to the City Manager, would not have constituted a special privilege or benefit for the Respondent because the Respondent did have the right to contact the City to learn of the requirements of the ordinance and to inquire about the status of his application. Furthermore, Dodge's responsibilities included making such inquiries in other instances.
22. Accordingly, the evidence presented failed to prove that the Respondent received a special privilege, benefit, or exemption resulting from his directing the City Manager to take care of his permit application or his memorandum of August 20th to the City Manager.
23. The Advocate also argues that the Respondent misused his position in connection with his application when he asked the Assistant City Manager to make copies of his neighbors' consent statements for the press. T2 46-49. However, as part of the Respondent's application, the consent statements were or should have been public records available to the public and the press. Therefore, providing copies of the statements for the press served a public purpose sufficient to justify the Respondent's asking the Assistant City Manager to have copies made, even though doing so may also have avoided additional embarassment to the Respondent.
24. Finally, the Advocate argues that the Respondent misused his public position by having the Deputy City Clerk notarize his signature on the permit application at some time after he actually had signed the application form. T2 5-8. Section 117.09(1), Florida Statutes, makes it a criminal offense for a notary public to notarize a signature if the person signing is not in the presence of the notary at the time the signature is notarized. Although it was proven that the Respondent signed the application sometime before the Deputy City Clerk signed as notary, it was not proven by a preponderance of the evidence that the Respondent did not appear before her at the time she notarized the document. In the absence of evidence that the Deputy City Clerk's action was unlawful, it does not appear that the Respondent received a "special privilege, benefit, or exemption" simply by asking her to notarize his signature on the application, especially where it appears that she would be familiar with the Respondent and his signature by virtue of her 15-year service as Deputy City Clerk. T2 5.
25. Accordingly, the Respondent did not violate Section 112.313(6) with respect to any assistance provided to him by City employees, other than his secretary, in the preparation and processing of his permit application.
(4) Use of Position to Secure Permit Without Complying with City
26. The fourth issue is whether the Respondent violated Section 112.313(6), Florida Statutes, by using his official position to secure the necessary permit for installation of a satellite dish antenna without fully complying with City requirements.
27. With respect to this issue, it should be noted at the outset that the record of this hearing does not support a finding, and the Advocate does not argue, that the Respondent's satellite dish installation failed to comply with any of the substantive requirements of the City's ordinance. Nor does the record support a finding that the Respondent benefited financially from the issuance of the permit, as it is clear that he would have had to pay a double fee regardless of whether the permit were granted in August, September, or October. Rather, the Advocate argues that the application was incomplete at the time of approval as it did not include the plans or the certificate of insurance required by the City ordinance. As the application was granted prematurely, argues the Advocate, the expedited receipt of a permit was a special privilege, benefit, or exemption received by the Respondent.
28. The evidence presented was insufficient to conclude that the Respondent's permit was granted in less than the average time taken by the City for other satellite dish permits, although it appears that the Respondent's permit was granted in the shortest possible time after his memorandum of August 20th prompted the Assistant City Manager's inquiry into the status of the permit. It was admitted by the City Planner and by the Building Official that at the time the City Planner brought the Respondent's application for a satellite dish antenna permit before the Planning and Zoning Board, the application was incomplete. Nevertheless, the Code Enforcement Officer had verified the objective data relating to the location, setbacks, and screening for the antenna, the Respondent's neighbors had been contacted and did not object, a double fee had been paid, and a signed application was on file. The City Planner indicated that applications had been approved in the past even though they contained minor omissions to be corrected later. There was no possibility that the Respondent stood to gain financially; nor does it appear that securing the permit expeditiously would forestall adverse publicity, which he already had received. Under these circumstances, it was not shown by a preponderance of the evidence that the Respondent received a special privilege, benefit, or exemption which he would not have received but for his public position.
29. Accordingly, the Respondent did not violate Section 112.313(6) by using his official position to secure the satellite dish permit without fully complying with City requirements.
Having concluded that the Respondent has violated the Code of Ethics for Public Officers and Employees, it is necessary to consider what penalty would be appropriate for the violation. Although the circumstances which led to this complaint also gave rise to the appearance that the Respondent had abused his official position, upon closer examination of the facts the Respondent has not been found to have violated the Code of Ethics with respect to the most serious allegations raised against him.
The only violation here involved the Respondent's admitted use of his secretary to prepare a letter relating to his private interests. According to the secretary, the letter took only about a minute and a half to prepare. By this action, the Respondent used resources within his trust as a public official for his private benefit. Although this action was improper and should not be condoned, it is admittedly a minor infraction involving only a slight use of public resources. At the hearing, the Respondent expressed regret for the position he put Storer Cable and himself in by making the request that they provide him with the satellite dish. Therefore, it appears that the finding of a violation in this case and the Respondent's present appreciation of the appearance of his actions to those under his authority will assure that he will not engage in the same conduct in the future, without the necessity of imposing any further penalty.
For these reasons, it is recommended that the final order of the Commission on Ethics recommend to the Governor that no penalty be imposed against the Respondent for the violation found.
Based on 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, Charles W. Flanagan, has violated Section 112.313(6), Florida Statutes, as set forth above, finding that he did not violate Section 112.313(4) or (6), Florida Statutes, in the manner described above, and recommending that no penalty be imposed against him.
ENTERED and respectfully submitted this ____ day of October, 1989.
Maria Elena Prio
Hearing Officer and Member
Commission on Ethics
Copies furnished to:
Ms. Jane W. Moscowitz, Attorney for Respondent
Mr. Craig B. Willis, Commission Advocate
The following are rulings on the proposed findings of fact submitted by the parties:
Advocate's Proposed Findings of Fact
5. Accepted, except that the evidence was insufficient to conclude that applications were received in July.
6. Accepted as found in paragraphs 7 and 9; otherwise rejected as unsupported.
7. Accepted as found in paragraphs 9-11; otherwise rejected as unsupported.
9. Accepted as found in paragraphs 16-19; otherwise rejected as unsupported.
11. Accepted first three sentences; final sentence rejected as irrelevant, immaterial, and cumulative.
17. Rejected, as the evidence was not sufficient to determine the average waiting period for a satellite dish permit.
Respondent's Proposed Findings of Fact
2. Accepted as found in paragraph 2; otherwise rejected as unsupported.
3. Accepted as found in paragraph 7; otherwise rejected as unsupported.
4. Accepted as found in paragraph 8; otherwise rejected as not supported by a preponderance of the evidence.
5-6. Accepted as found in paragraphs 9 and 10; otherwise rejected as unsupported.
7. Accepted as found in paragraph 11; otherwise rejected as not supported by a preponderance of the evidence.
8. Accepted as found in paragraphs 11 and 14; as Storer had arranged for the purchase of a dish for the Respondent before this meeting, however, it is apparent that the participants did not discuss whether the Respondent wanted to install a dish.
9. Accepted as found in paragraph 14; otherwise rejected as subordinate to facts found.
10. Accepted as found in paragraph 15; otherwise rejected as unsupported.
11. Accepted as found in paragraphs 13, 17, and 19; otherwise rejected, as Storer's invoice reflects the purchase of a feedhorn in addition to the dish.
12. Accepted as found in paragraph 9; the understanding was that the Respondent would pay the costs of the equipment, but since McCracken did not testify it cannot be determined what he paid.
13. Accepted as found in paragraphs 16 and 17; otherwise rejected as not supported by a preponderance of the evidence.
14. Accepted as found in paragraph 20; otherwise rejected as not supported by a preponderance of the evidence.
16. Accepted to the extent found in paragraph 29; otherwise rejected as not supported by a preponderance of credible evidence.
19. Rejected for the reasons expressed in paragraphs 43-46.
21. Rejected for the reasons expressed in paragraphs 43-46.
24-25. Rejected as not supported by a preponderance of credible evidence.
28. Accepted as found in paragraph 17; otherwise rejected as unsupported.
30. Accepted as found in paragraph 39, except that a finding that the Respondent was unaware that the application had not yet been fully completed is not supported by a preponderance of the evidence, as the Respondent previously had been advised by Dodge of the information necessary for the permit.
31. Accepted as found in paragraph 39; otherwise rejected as unsupported.
32. Rejected as not supported by a preponderance of the evidence.
33. Rejected as not supported by a preponderance of the evidence.
34. Accepted as found in paragraph 6; otherwise rejected as unsupported.
38. Accepted, except that it appears that Storer could have opposed the terms on which a competitor would enter the Pembroke Pines market.
40-41. Accepted as found in paragraphs 12 and 23; otherwise rejected as unsupported.
43. Rejected as not supported by a preponderance of the evidence.
44. Accepted as found in paragraph 12; otherwise rejected as cumulative and subordinate.
45. Rejected as not supported by a preponderance of the evidence.
46. Accepted as found in paragraph 25; otherwise rejected as unsupported.
47. Accepted to the extent found in paragraphs 20 and 21; otherwise not supported by a preponderance of the evidence. Also, it is irrelevant that the Respondent's transactions were with McCracken, because it is clear that McCracken undertook the work because he was told to do so by Carlson, who in turn acted with the permission of Boso.