(4) Whether the Respondent violated Section 112.3143(3), Florida Statutes, by voting as a member of the Board of County Commissioners in January, 1989, on the approval of Site H for a proposed landfill; and

(5) Whether the Respondent, as a member of the Board of County Commissioners, violated Section 112.313(6), Florida Statutes, by corruptly using his official position to propose and approve the Healthpark, Florida DRI site in order to benefit himself or persons having interests in adjacent property.

A public hearing was held on Friday, April 6, 1990, in Fort Myers, 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; the Respondent was represented by Patrick E. Geraghty, Esq.

At the public hearing the Advocate called the following witnesses: Charles Bigelow, Frieda Bigelow, James Nathan, Kenneth Wilkinson, and Marsha Segal-George. The Respondent called the following witnesses: Walter Smith, Terry Dillon, Michael Ciccarone, and Patricia Stumbaugh. Various exhibits presented by the parties were received in evidence and a Prehearing Stipulation containing stipulated facts was filed by the parties.

The Advocate and the Respondent both submitted written closing arguments; in addition, the Respondent submitted a brief statement of proposed findings of fact and conclusions of law. All of these have been considered by the Hearing Officer. Specific rulings on the 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", followed by the page number; references to the Prehearing Stipulation are made by the abbreviation "Stip.", 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.

RECOMMENDED RULINGS ON PRE-HEARING MOTIONS

Prior to the public hearing of this complaint, the Respondent filed a Motion to Dismiss, arguing that the complaint should be dismissed on several grounds, and a Motion for More Definite Statement, arguing that the issues set forth in the Notice of Hearing were not sufficiently specific to allow him to prepare a defense to the charges. Under Commission Rule 34-5.0184, F.A.C., a ruling by the Hearing Officer on such motions is to be incorporated in the recommended public report and can be finally disposed of only by the Commission. Having determined earlier in separate orders that both motions should be denied, those orders are hereby incorporated into this Recommended Public Report as recommendations that the Commission deny the Repondent's Motion to Dismiss and the Respondent's Motion for More Definite Statement.

FINDINGS OF FACT

From the evidence presented at the hearing, the undersigned Hearing Officer finds as follows:

ISSUE 1

1. The Respondent, Charles Bigelow, was appointed to the Lee County Local Planning Agency (LPA) on December 28, 1983. He was notified of this appointment by United States Mail on January 3, 1984, and was sworn as a member of the LPA at some time after January 3, 1984. Stip., 2; AE 3.

2. The Respondent served as a member of the LPA during most of the year 1984, resigning in the latter part of that year. T 18, 20. His replacement on the LPA was appointed on or about January 17, 1985. T 140.

3. The major work of the LPA involved a comprehensive amendment to the County's comprehensive plan. T 20.

4. The letter notifying the Respondent of his appointment as a member of the LPA advised him that he was subject to the financial disclosure law and that he had 45 days from the date of his appointment to file the necessary papers. AE 3. The letter also advised him that the disclosure forms were available in the Supervisor of Elections office in the Courthouse. AE 3. The Respondent recalled receiving the letter notifying him of his appointment. T 19.

5. The Respondent also was sent notice by the Lee County Supervisor of Elections Office on or before June 1, 1984, advising him that he needed to file CE Form 1 for 1983 by July 1, 1984. AE 1; Stip., 3. Subsequently, the Supervisor of Elections Office sent another letter to the Respondent by certified mail; that letter was picked up at the post office on July 10, 1984. AE 1; AE 2. As the Respondent did not file the disclosure statement with the Supervisor's Office by September 4, 1984, the Supervisor of Elections included the Respondent's name on her certified list of persons who had not filed the Form 1 by that deadline. AE 1; AE 2.

6. The signature on the the certified mail receipt from the Supervisor's Office, picked up from the post office on July 10, 1984, is not the Respondent's and is illegible. Stip., 3; AE 1; AE 2. The Respondent states that while he could not positively identify the signature on the certified mail receipt attached to the notification sent to him by the Supervisor of Elections, he did have an employee at his law firm during this time who served as a "runner," whose name is Kiki. Stip., 3. From the certified mail receipt, it appears that the signature could be that of an individial named "Kiki." AE 2. The Respondent, however, has no recollection of having been advised of the need to file CE Form 1 while a member of the LPA. Stip., 3.

7. The Respondent did not file a Statement of Financial Interests (CE Form 1) for the year 1983 or for the year 1984. Stip., 3; AE 1; AE 2; T 56.

8. The Lee County LPA and the Respondent's name were listed in a letter dated March 1, 1984, to the Florida Commission on Ethics from the Lee County Administrator's Office. This letter advised which Lee County committees and employees were required to file financial disclosure. Stip., 3.

9. The Commission on Ethics' Financial Disclosure Notification Mailing List and its Agency Coordinators Updated Printout sent to Lee County, listing the individuals and committees required to file under the financial disclosure law (Section 112.3145, Florida Statutes), did not include the Respondent or the LPA. Stip., 3-4.

ISSUE 2

10. On July 18, 1986, the Respondent qualified to run for County Commissioner of Lee County. At that time, he filed a CE Form 6. AE 4. The Respondent did not file a CE Form 6 again until December 16, 1988, disclosing his net worth, assets, and liabilities as of December 31, 1987, along with copies of his tax returns for 1986 and 1987. Stip., 4; T 56-57; AE 5.

11. The Respondent served as a member of the Board of County Commissioners for Lee County from November of 1986 until February of 1990, at which time he resigned. Stip., 4.

ISSUES 3 and 5

12. In 1977, the Respondent and Bob Bass, a local real estate broker, put together a group of investors and bought a tract of land in Lee County, consisting of approximately 400 acres. T 25, 128. Bass and the Respondent were co-trustees for the group, called the "310 Land Trust"; the Respondent held a 5% beneficial interest in the trust. T 25; Stip., 5.

13. Portions of the property owned by the 310 Land Trust were sold in 1977, 1978, and 1981, so that by February of 1987 the assets of the trust consisted only of 38.5 acres of land and a purchase money mortgage receivable from a prior sale of trust properties some seven years before. Stip., 5; T 26-27, 38-40, 128. There was one last installment payment due on the mortgage. Stip., 5. The 38.5 acre parcel was located south and east of Summerlin Road, but was separated from Summerlin Road by a Florida Power and Light easement; the parcel fronts on Winkler Road, which intersects Summerlin Road north of the parcel. T 24-25, 40-41; AE 9.

14. In February of 1987, at the request of his former wife, Frieda Bigelow, the Respondent assigned to her his five percent beneficial interest in the 310 Land Trust, excluding his interest in the payment receivable, in return for her ownership interest in 27 acres of property north of the Caloosahatchee River of equal value. AE 6, AE 7; Stip., 5. The Respondent's former wife originated the exchange of interests, initially contacting the Respondent in December of 1986 about his buying her undivided one-third interest in the 27 acre riverfront parcel because she no longer wished to own property jointly with him. T 77, 83-84. When the Respondent indicated that he could not purchase the interest, Ms. Bigelow offered to exchange property interests. T 77, 84.

15. Ms. Bigelow has been licensed as a real estate broker since the 1970's; the 38.5 acre parcel was listed through the office in which she worked and she was aware that the asking price was $35,000 per acre. T 77-78. She believed that the 27 acre riverfront parcel was worth $7,000 to $8,000 per acre. T 78. The Lee County Property Appraiser testified that $35,000 per acre was a reasonable asking price for the 38.5 acre parcel, given comparable sales in the vicinity. T 127. [NOTE: At $7,500 per acre, Ms. Bigelow's one-third interest in the 27 acre parcel was worth $67,500; at $35,000 per acre, the Respondent's 5% interest in the 38.5 acre parcel was worth $67,375.]

16. In March of 1987, again at the request of his former wife, the Respondent assigned his interest as co-trustee for said property to Frieda Bigelow and Bob Bass by a quitclaim deed. Stip., 5. The Respondent received no compensation for transferring his title as co-trustee. T 85-86.

17. Beginning in 1980 or 1981, prior to his election to the Board of County Commissioners, the Respondent served as the attorney for the Board of Directors of Lee Memorial Hospital, a public hospital. T 39; Stip., 4.

18. In early 1983 the Hospital Board and its President began looking for a site in the area of Summerlin Road on which to locate a satellite hospital. T 89. Eventually, this concept grew into that of a healthpark, involving the public hospital, its nonprofit support corporation, and other organizations in a joint venture, with the idea that the hospital could purchase more land than was immediately necessary in order to control and profit from health-related growth in the area next to its location. T 93-118. The Hospital's President, James Nathan, was responsible for picking the site; as legal counsel for the Hospital, the Respondent was responsible for obtaining options on the property that had been selected. T 21-24, 98-105, 118. The site was selected by the end of 1984. T 107-108, 113. The project was known as HealthPark, Florida. Stip., 4.

19. Following conversations between the Assistant County Attorney and a member of the staff of the Commission on Ethics about the Respondent's serving as attorney for the hospital, the Respondent resigned his position as Hospital Board attorney on June 5, 1987. T 47-54, 119-121, 143-151; Stip., 4.

20. On June 8, 1987, the Respondent voted, as a member of the Board of County Commissioners, to approve the HealthPark Florida Development of Regional Impact (DRI). This vote rezoned the HealthPark property from agricultural to hospital and gave the developers the approval to proceed to build the project. Stip., 4. The HealthPark property was located east of the 38.5 acre parcel, on the other side of Summerlin Road. AE 9.

21. In June of 1987, the Respondent did not have any beneficial interest in the 38.5 acres comprising the 310 Land Trust and he realized no financial gain as a result of the vote to rezone the property. Stip., 5. He subsequently received his share of the final mortgage payment due from the purchase money mortgage. T 30.

22. In 1988 the 38.5 acre parcel was sold. T 30-31, 129. Ms. Bigelow received a portion of the proceeds from that sale, but the Respondent received no portion of the proceeds, either from Ms. Bigelow or as a result of the sale. T 31, 82-83. At the time of the sale, the Respondent was asked to provide another quitclaim deed to resolve a title question that had arisen in connection with the closing on the property; he did so. T 30-31.

23. The undersigned Hearing Officer takes official notice of Commission records appearing in its file for the earlier case of Complaint No. 87-49, In re Charles L. Bigelow, Jr., as follows. The issue presented in that case was whether the Respondent violated Section 112.3143(3), Florida Statutes, by voting on the HealthPark, Florida DRI because of his relationship to Lee Memorial Hospital and the joint venture entity involved in the DRI as their attorney. Following a preliminary investigation and a supplemental investigation, the Commission found no probable cause to believe that the Respondent had violated Section 112.3143(3), as alleged. The Commission's finding was based on the recommendation of the Commission Advocate that the Respondent had resigned as attorney prior to the HealthPark vote, that there was no evidence of continued representation of the HealthPark development during the five-month period of his resignation, and that therefore the approval of the DRI could not be said to have inured to the special gain of a principal by whom he was retained.

24. The Respondent's involvement as an attorney for Lee Memorial Hospital and the joint venture seeking DRI approval was not at issue in this proceeding, that having been the subject of Commission Complaint No. 87-49, In re Charles L. Bigelow, Jr. Although that relationship was not at issue in this proceeding, it should be noted that no evidence was presented at the public hearing that would have contradicted the evidence developed in the earlier proceeding. No evidence was presented that would have indicated that the Respondent was retained at the time of the vote by any other principal who would have received gain as a result of the approval of the DRI.

ISSUE 4

25. In 1973, a limited partnership, Wildcat Farms, Ltd., purchased a tract of approximately 6,700 acres in Lee County. T 60-61. In 1978 a group of businessmen, including the Respondent, purchased one limited partnership unit in Wildcat Farms, Ltd., through a trust of which they were beneficial owners. T 34, 61.

26. By 1989, Wildcat Farms consisted of approximately 3,520 to 4,300 acres. T 34, 61-62; Stip., 6. The Respondent's interest in Wildcat Farms amounted to about a 1.7% beneficial interest. T 34, 61; Stip., 6.

27. For some time the County had known that the useful life of its current landfill site was limited. The County was looking for a new site for its solid waste program, which would include a landfill, resource recovery recycling, and sludge processing facilities, and had hired a consulting firm to locate and evaluate potential sites. T 31-33, 132-133.

28. On October 19, 1988, the Lee County Board of County Commissioners met and considered eight staff recommendations for implementing a 40-year Solid Waste Management Master Plan. T 134; AE 11. The Respondent voted with the majority of the County Commission to select the area designated as Site H, to authorize the consulting firm to proceed with design and permitting for the site, to negotiate a new long term contract with Waste Management (its current landfill operator), and to have Waste Management secure Site H for the new facilities. T 32, 133-35; AE 11.

29. On or about January, 1989, the Respondent voted to approve a Solid Waste Disposal Extension Agreement between the County and Waste Management Services. Stip., 6. Part of this agreement was the approval of Site H as a County landfill and resource recovery site. Stip., 6; T 32-33. Ultimately, Waste Management purchased Site H, the County decided to seek the usage of a site in Hendry County for the landfill, and Waste Management began seeking a purchaser for the property. T 33, 55, 136-37.

30. The Wildcat Farms property does not abut Site H, as ultimately purchased by Waste Management; Site H is located approximately one and one-half miles from Wildcat Farms, when measured between the two closest corners of the two parcels. T 36; AE 12; Stip., 6.

31. One of the County staff's proposals relating to Site H and the County's 40-year Solid Waste Management Master Plan was an extension of Alico Road. Stip., 6; AE 11. This road would not have passed Wildcat Farms and would not have provided additional direct access to Wildcat Farms. T 35-37, 45, 72-73; Stip., 6. No evidence was presented that indicated that the extension of Alico Road would have increased the value of the Wildcat Farms property beyond the same, general increase in value that would have resulted for all property in the portion of the County that would have been served by the road. T 45-46. The Respondent voted not to approve the Alico Road extension. T 135-36; AE 11; Stip., 6. An extension of Alico Road is not a part of the County's current five-year road plan. T 137; Stip., 6.

32. The Wildcat Farms property that had not been sold was used for cattle grazing and for hunting, camping, and other recreational purposes by its owners, although no recreational facilities were located on the property. T 64, 66-67. In 1983-85 the property was listed for sale at approximately $2,900 per acre. T 64. Subsequently, the County's Comprehensive Plan took away the commercial and industrial zoning designations for portions of the property and allowable density dropped to one unit per five acres or one unit per 20 or 40 acres, depending on location. T 65. As a result, the owners obtained permitting to allow citrus groves on the property. T 65. In 1989, 600 acres of Wildcat Farms was under option at a price of $1,800 per acre for the first year and $1,900 per acre for the second year. T 62. The entire property currently is subject to an option to purchase at less than $1,900 per acre, although the asking price now is around $2,100 per acre. T 62-63. The President of the general partner in Wildcat Farms, Ltd., testified that in his opinion locating the landfill at Site H would have had a negative impact on the value of the property, because of the long-term potential for toxic and hazardous waste leaching into the aquifers that run beneath the property and because the increase in heavy truck traffic would destroy State Road 82, the main access road to Wildcat Farms. T 45, 62-63, 69-71.

PRIMARY CONSTITUTIONAL AND STATUTORY PROVISIONS

ISSUE 1

Section 112.3145(2)(b), Florida Statutes (1983), provided that each "local officer" "shall file a statement of financial interests no later than July 1 of each year" and that each "local officer" who was appointed "shall file a statement of financial interests within 30 days from the date of appointment". Section 112.3145(1)(a)2, Florida Statutes (1983), defined the term "local officer" as follows:

Any appointed member of a board; commission; authority, including any expressway authority or transportation authority established by general law; community college district board of trustees; or council of any political subdivision of the state, excluding any member of an advisory body. A governmental body with land-planning, zoning, or natural resources responsibilities shall not be considered an advisory body.

The term "advisory body" was defined in Section 112.312(1), Florida Statutes (1983), to mean:

any board, commission, committee, council, or authority, however selected, whose total budget, appropriations, or authorized expenditures constitute less than 1 percent of the budget of each agency it serves or $100,000, whichever is less, and whose powers, jurisdiction, and authority are solely advisory and do not include the final determination or adjudication of any personal or property rights, duties, or obligations, other than those relating to its internal operations.

Section 112.3145(5), Florida Statutes (1983), prescribed the procedure under which the Commission on Ethics was to prepare a current list of the persons who were to file statements of financial interests (CE Form 1) by the following July 1st. Section 112.3145(5)(e) and (f) provided:

(e) Any state officer, local officer, or specified employee whose name is not on the mailing list provided to the Secretary of State or supervisor of elections is not subject to the penalties provided in s. 112.317 for failure to timely file a statement of financial interests in any year in which the omission occurred.

(f) The requirements of this subsection do not apply to candidates or to the first filing required of any state officer, specified employee, or local officer.

ISSUE 2

Article II, Section 8(a) and (h), Florida Constitution, provide in relevant part:

(a) All elected constitutional officers and candidates for such offices and, as may be determined by law, other public officers, candidates, and employees shall file full and public disclosure of their financial interests.

(h) Schedule--On the effective date of this amendment and until changed by law:

(1) Full and public disclosure of financial interests shall mean filing with the secretary of state by July 1 of each year a sworn statement showing net worth and identifying each asset and liability in excess of $1,000 and its value together with one of the following:

a. A copy of the person's most recent federal income tax return; or

b. A sworn statement which identifies each separate source and amount of income which exceeds $1,000.

ISSUES 3 and 4

Section 112.3143(3), Florida Statutes, provides:

No county, municipal, or other local public officer shall vote in his official capacity upon any measure which inures to his special private gain or shall knowingly vote in his official capacity upon any measure which inures to the special gain of any principal, other than an agency as defined in s. 112.312(2), by whom he is retained. Such public officer shall, prior to the vote being taken, publicly state to the assembly the nature of his interest in the matter from which he is abstaining from voting and, within 15 days after the vote occurs, disclose the nature of his interest as a public record in a memorandum filed with the person responsible for recording the minutes of the meeting, who shall incorporate the memorandum in the minutes. However, a commissioner of a community redevelopment agency created or designated pursuant to s. 163.356 or s. 163.357 or an officer of an independent special tax district elected on a one-acre, one-vote basis is not prohibited from voting.

ISSUE 5

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 statute, the term "corruptly" is defined by Section 112.312(7), Florida Statutes, 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.

CONCLUSIONS OF LAW

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 Bigelow, as a member of the Lee County Local Planning Agency and as a County Commissioner for Lee County at all times material to this complaint, was a public officer subject to the provisions of the Code of Ethics for Public Officers and Employees contained in Part III, Chapter 112, Florida Statutes, and the provisions of Article II, Section 8, Florida Constitution. The Respondent is subject to the continuing jurisdiction of the State of Florida Commission on Ethics.

ISSUE 1

2. Members of the Lee County Local Planning Agency were "local officers" subject to the requirement of filing statements of financial interests under Section 112.3145, Florida Statutes, as they were appointed members of a board of a political subdivision of the State having land-planning responsibilities. See, among others, Commission on Ethics advisory opinions CEO 75-190, CEO 76-156, and CEO 76-159.

3. Therefore, at the time the Respondent received notice in January of 1984 that he had been appointed as a member of the Lee County Local Planning Agency, he was required to file a statement of financial interests (Commission on Ethics Form 1) with the local Supervisor of Elections within 30 days. Section 112.3145(2)(b), Florida Statutes (1983).

4. Had the Respondent filed Form 1 within 30 days of his appointment to the LPA, the information contained in his disclosure statement would have been reflective of his financial interests during the disclosure period 1983. This is because Section 112.312(8), Florida Statutes (1983), defined the term "disclosure period" as follows:

'Disclosure period' means the taxable year for the person or business entity, whether based on a calendar or fiscal year, immediately preceding the date on which, or the last day of the period during which, the financial disclosure statement required by this part is required to be filed.

See, also, Commission on Ethics opinion CEO 76-60 (question 6).

5. As the Respondent never filed a Form 1 as a member of the LPA, he violated Section 112.3145, Florida Statutes (1983), by failing to file financial disclosure for the year 1983.

6. As a "local officer," the Respondent was required to file a Form 1 by July 1, 1984, or at least by the end of the grace period that expired September 1, 1984. Section 112.3145(2)(b) and (5), Florida Statutes (1983). He failed to do so, thereby also violating Section 112.3145, Florida Statutes (1983), by failing to file financial disclosure for the year 1983. Had he filed within 30 days of his appointment he would not have been required to file a second time during 1984. The disclosure period for all forms filed during 1984 was the year 1983, as noted above, and Section 112.3145(6), Florida Statutes (1983), provided that a public official who had filed a disclosure for any calendar year was not required to file a second disclosure for the same year unless qualifying as a candidate for public office.

7. However, the Respondent did not violate Section 112.3145, Florida Statutes, by failing to file a Form 1 disclosing his financial interests for the year 1984. Under the statutory scheme, disclosure statements for the year 1984 were those filed during 1985. The Respondent, however, was not required to file a statement of financial interests in 1985, for the following reason. As interpreted by the Commission in opinions CEO 84-32, CEO 84-33, and CEO 84-34, persons who were not in a "local officer" position at the end of calendar year 1984 were not subject to the requirement of filing Form 1 by July 1, 1985, which would have covered financial interests held during 1984. As the record of this proceeding indicates that the Respondent left the LPA before the end of 1984, he was not required to file Form 1 during 1985 (for the year 1984).

ISSUE 2

8. As a member of the Lee County Board of County Commissioners during 1987 and 1988, the Respondent was an elected constitutional officer required to file full and public disclosure of his financial interests (Commission on Ethics Form 6) with the Secretary of State no later than July 1st of each of those years. Article II, Section 8(a) and (h), Florida Constitution. These provisions require filing a sworn statement showing net worth, assets and liabilities in excess of $1,000 together with either a copy of the person's most recent federal income tax return or a sworn statement of sources and amounts of income exceeding $1,000 and of secondary sources of income. The Form 6 promulgated by the Commission allows the statement of net worth, assets, and liabilities to be as of December 31st of the prior year or a more current date (presumably, a date between December 31st and July 1st, when the form is due). As is the case with the Form 1 disclosure, the information on the Form 6 disclosure regarding income necessarily would relate to the preceding calendar year (Commission Rule 34-8.005, F.A.C., requires the statement of sources and amounts of income to cover the preceding tax year, and one's most recent federal income tax return also would be for the preceding tax year).

9. The Respondent filed no financial disclosure statement whatsoever during 1987 and failed to file his Form 6 in 1988 until December 16th, five and one-half months after the July 1st deadline. At that time, he disclosed his net worth, assets, and liabilities as of December 31, 1987, and filed copies of his tax returns for 1986 and 1987. Accordingly, the Respondent violated Article II, Section 8(a) and (h), Florida Constitution, by failing to timely file full and public disclosure of his financial interests for the year 1986, as he filed almost one and one-half years late, and by failing to properly file full and public disclosure for the year 1986, as he did not disclose his assets, liabilities, and net worth during the period from December 31, 1986 to July 1, 1987. In addition, the Respondent violated Article II, Section 8(a) and (h), Florida Constitution, by failing to timely file full and public disclosure for the year 1987, as he did not file for that year until five and one-half months after the July 1st deadline.

ISSUE 3

10. The Respondent did not violate Section 112.3143(3), Florida Statutes, by voting as a member of the Board of County Commissioners in June, 1987, on the approval of the HealthPark, Florida DRI.

11. Section 112.3143(3), Florida Statutes, would have prohibited the Respondent from voting on the HealthPark, Florida DRI if that measure had inured to his special private gain. Having exchanged his beneficial interest in the 38.5 acre parcel with his former wife approximately three months before the vote, the Respondent had no beneficial interest in that parcel and, so, could not have benefited from any increase in the parcel's value that might have resulted from the approval of the HealthPark. In addition, prior to the vote, he had assigned any interest he might have had in the parcel as a co-trustee. The Respondent did not receive any gain from the subsequent sale of that parcel. Nor did the circumstances of the exchange of property interests with his former wife indicate that the Respondent stood to gain from the approval of the DRI. She initiated the exchange, which was based on an asking price deemed reasonable by the Property Appraiser, in light of comparable sales in the area. Finally, although the Respondent did receive a share of the final mortgage payment that was due to the 310 Land Trust, there was no evidence indicating that the payment was contingent in any way upon the approval of the HealthPark, Florida DRI.

12. Section 112.3143(3), Florida Statutes, also would have prohibited the Respondent from voting on the HealthPark, Florida DRI if that measure had inured to the special gain of a principal by whom he was retained. The Respondent's involvement as an attorney for Lee Memorial Hospital and the joint venture seeking DRI approval was not at issue in this proceeding, that having been the subject of Commission Complaint No. 87-49, In re Charles L. Bigelow, Jr. Although that relationship was not at issue in this proceeding, it should be noted that no evidence was presented at the public hearing that would have contradicted the evidence developed in the earlier proceeding. No evidence was presented that would have indicated that the Respondent was retained at the time of the vote by any other principal who would have received gain as a result of the approval of the DRI.

ISSUE 4

13. The Respondent did not violate Section 112.3143(3), Florida Statutes, by voting as a member of the Board of County Commissioners in January, 1989, on the approval of Site H for the proposed landfill.

14. Although the Respondent had about a 1.7% beneficial interest in the Wildcat Farms, Ltd., property, approval of Site H for the proposed landfill did not result in any special gain to him through a change in the value of that property. The Wildcat Farms property was located approximately one and one-half miles from the nearest part of Site H. The testimony indicated that, if anything, the property's value would have been diminished in terms of the use for which it currently is permitted, citrus production. Also noteworthy is the fact that the asking price for the property has not changed significantly since it was determined that the landfill would not be located at Site H. Rather, it appears that the most significant change in the value of the property resulted from the adoption of the County's Comprehensive Plan, which occurred before the Respondent became a County Commissioner. No evidence was presented that indicated that the proposed extension of Alico Road would have increased the value of the Wildcat Farms property beyond the same, general increase in value that would have resulted for all property in the portion of the County that would have been served by the road. Finally, no evidence was presented that would have indicated that the Respondent was retained at the time of the vote by any principal who would have received gain as a result of the approval of Site H or Alico Road.

ISSUE 5

15. 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 either a public officer or a public employee;

b. The Respondent used or attempted to use his official position or property or resources within his trust, or performed his official duties.

c. The Respondent's actions were done with an intent to secure a special privilege, benefit, or exemption for himself or others; and

d. The Respondent's actions were done "corruptly," that is,

(1) done with a wrongful intent, and

(2) done for the purpose of benefiting from some act or omission which was inconsistent with the proper performance of public duties.

16. The evidence clearly showed that the majority of the approximately 400 acres originally purchased by the 310 Land Trust had been sold before the Hospital decided where it would locate the HealthPark. The Respondent did not select the HealthPark site, as that decision was made by the Hospital Board and the President of the Hospital. All of these events took place before the Respondent sought election to the County Commission.

17. At the time of the County Commission's vote on the proposed HealthPark DRI, the Respondent had no legal or beneficial interest in the 310 Land Trust aside from the right to receive a portion of the final mortgage payment. Therefore, as explained above, he did not stand to benefit from the decision to approve the DRI. Nor was there any evidence presented that would have indicated that the Respondent had any reason to benefit his former wife, who at the time owned the beneficial interest in the Trust's remaining 38.5 acres, or any other person by voting to approve the DRI.

18. Accordingly, the Respondent did not violate Section 112.313(6), Florida Statutes, by corruptly using his official position as a member of the Board of County Commissioners to propose and approve the HealthPark, Florida DRI site in order to benefit himself or persons having interests in adjacent property, as alleged.

RECOMMENDED PENALTY

Although during the time he served as a member of the Board of County Commissioners the Respondent failed to timely and properly file full and public disclosure of his financial interests, as required by Article II, Section 8, Florida Constitution, there are no penalties which can be recommended by the Commission on Ethics to be imposed upon him for these violations. The constitutional provision does not provide any explicit penalties. Until the Legislature adopts a statute that would provide penalties directed at those elected constitutional officers who fail to comply with this financial disclosure requirement, there can be no penalty imposed for this violation.

On the other hand, Section 112.317(1), Florida Statutes, specifies penalties applicable to a public official who has violated a provision of the Code of Ethics for Public Officers and Employees contained in Chapter 112. Of the possible penalties provided in Section 112.317(1)(a), Florida Statutes, only three are potentially applicable to a public officer who, like the Respondent, no longer holds office: public censure and reprimand; a civil penalty not exceeding $5,000; and restitution of any pecuniary benefits received because of the violation committed. It has not been shown that the Respondent received any pecuniary benefits because of the financial disclosure violation found here, so restitution would not be an appropriate penalty.

At the time the Respondent was appointed to the Local Planning Agency, he was notified of the requirement to file financial disclosure. In addition, the evidence indicates that he received two more notices of the requirement to file during 1984 as a member of the LPA. Had he filed financial disclosure on a timely basis while serving as a member of the Board of County Commissioners, he might be able to argue that his failure to file as a member of the LPA was an oversight. However, the sum of the evidence presented indicates that the Respondent's failure to file was more than simple negligence on his part--it amounted to a deliberate disregard for the requirements of the law.

The Respondent does argue that because his name was not on the financial disclosure notification list provided to the Supervisor of Elections in 1984, he is not subject to any penalty for failing to file during that year. Section 112.3145(5)(e), Florida Statutes (1983), did provide that any local officer whose name was not on the mailing list is not subject to the imposition of penalties for failure to file in that year; it is undisputed that the Respondent's name did not appear on the list.

Clearly, the purpose of this provision was to excuse from penalty those persons who were not notified of their obligation to file, although the provision does not excuse the actual requirement to file. Nevertheless, under the terms of Section 112.3145(5)(f), Florida Statutes (1983), the first filing by an official (within 30 days of appointment) was exempted from the statute's provisions regarding the mailing list and the correlative provision regarding no penalty for not being included on the mailing list. The Respondent clearly received notice of the requirement to file shortly after his appointment; the fact that his name was not on the mailing list does not eliminate the possibility of a penalty for his failure to file within 30 days of appointment.

Accordingly, under the circumstances presented it is recommended that the Commission on Ethics recommend that the Lee County Board of County Commissioners, as the authority which appointed the Respondent as a member of the LPA, impose a civil penalty of $500.00 against him.

RECOMMENDED FINAL ACTION

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 Bigelow, violated Section 112.3145, Florida Statutes, by failing to file financial disclosure for the year 1983 while a member of the Lee County Local Planning Agency, and violated Article II, Section 8(a) and (h), Florida Constitution, by failing to properly and timely file full and public disclosure of his financial interests for the years 1986 and 1987 while a member of the Lee County Board of County Commissioners.

The undersigned Hearing Officer also recommends that the Commission's final order and public report find that the Respondent did not violate Section 112.3145, Florida Statutes, by failing to file financial disclosure as a member of the Lee County LPA for the year 1984; did not violate Section 112.3143(3), Florida Statutes, by voting as a member of the Board of County Commissioners in July, 1987, on the approval of the HealthPark, Florida DRI; did not violate Section 112.3143(3), Florida Statutes, by voting as a member of the Board of County Commissioners in January, 1989, on the approval of Site H for a proposed landfill; and did not violate Section 313(6), Florida Statutes, through using his official position as a member of the Board of County Commissioners to propose and approve the HealthPark, Florida DRI site in order to benefit himself or persons having interests in adjacent property, as alleged.

The undersigned Hearing Officer recommends that the Commission's order recommend that the Lee County Board of County Commissioners, as the appointing authority for members of the Local Planning Agency, impose a civil penalty upon the Respondent in the amount of $500.00 for his violation of Section 112.3145, Florida Statutes, while serving as a member of the Local Planning Agency.

ENTERED and respectfully submitted this ____ day of July, 1990.

__________________________

Debra A. Zappi

Hearing Officer and Member

Commission on Ethics

Copies furnished to:

Mr. Patrick E. Geraghty, Attorney for Respondent

Mr. Craig B. Willis, Commission Advocate

Ms. Patricia I. Stumbaugh, Complainant

APPENDIX

To the extent that the Findings of Fact and Conclusions of Law submitted by the Respondent contain proposed findings of fact, the following are rulings on those proposed findings of fact:

Issue 1. Accepted that the Respondent's name was not on the Commission's mailing list.

Issue 2. Accepted that the Respondent filed a CE Form 6 when he qualified and later disclosed his net worth, assets, and liabilities.

Issue 3. Accepted that the Respondent had divested himself of any and 5. interest in any property in the area of the proposed HealthPark.

Issue 4. Accepted that the testimony indicated that, if anything, the property's value would have been diminished in terms of the use for which it currently is permitted, citrus production; however, it was not shown that locating the landfill at Site H was detrimental to the value of the Wildcat Farms property.

INTRODUCTION

FINDINGS OF FACT

PRIMARY CONSTITUTIONAL AND STATUTORY PROVISIONS

CONCLUSIONS OF LAW

RECOMMENDED PENALTY

RECOMMENDED FINAL ACTION