STATE OF FLORIDA
COMMISSION ON ETHICS
In re MITCHELL KINZER, )
Respondent. ) Complaint No. 90-163
) Final Order No. COE ____
FINAL ORDER AND PUBLIC REPORT
This matter came before the Commission on Ethics on the Recommended Order rendered in this matter on January 25, 1994 by the Division of Administrative Hearings' Hearing Officer. The Hearing Officer recommends that the Commission issue its public report and final order finding that Respondent violated Section 112.313(6), Florida Statutes, with regard to the expenditure of $11.25 for dry cleaning and Section 112.3135(2)(a), Florida Statutes, by participating in his wife's appointment to the Community Center Advisory Board. She also recommends a penalty of $11.25 restitution and $300 civil penalty, for a total of $311.25. The Respondent filed his exceptions on February 11, 1994 along with a Motion for Continuance of the Commission hearing scheduled for March 10, 1994 in order that he might have the opportunity to file a transcript of the DOAH hearing. The Motion was granted by Order of the Commission Chairman on February 16, 1994, and the transcript subsequently was filed on March 14, 1994. The Commission Advocate filed her Response to Exceptions on March 28, 1994.
Having reviewed the Recommended Order, the Respondent's Exceptions, the record of the public hearing of this complaint, including the transcript, and the Commission Advocate's Response to Exceptions, and having heard arguments of counsel for the Respondent and the Commission's Advocate, the Commission makes the following findings, conclusions, rulings, and recommendations:
STANDARDS FOR REVIEW
Under Section 120.57(1)(b)10, Florida Statutes, an agency may reject or modify the conclusions of law and interpretations of administrative rules contained in the recommended order. However, the agency may not reject or modify findings of fact made by the Hearing Officer unless a review of the entire record demonstrates that the findings were not based on competent, substantial evidence or that the proceedings on which the findings were based did not comply with the essential requirements of law. See, e.g., Freeze v. Dept. of Business Regulation, 556 So. 2d 1204 (Fla. 5th DCA 1990); and Florida Department of Corrections v. Bradley, 510 So. 2d 1122 (Fla. 1st DCA 1987). Competent, substantial evidence has been defined by the Florida Supreme Court as such evidence as is "sufficiently relevant and material that a reasonable mind would accept it as adequate to support the conclusions reached." DeGroot v. Sheffield, 95 So. 2d 912, 916 (Fla. 1957).
The agency may not reweigh the evidence, resolve conflicts therein, or judge the credibility of witnesses, because those are matters within the sole province of the hearing officer. Heifetz v. Dept. of Business Regulation, 475 So. 2d 1277, 1281 (Fla. 1st DCA 1985). Consequently, if the record of the DOAH proceedings discloses any competent, substantial evidence to support a finding of fact made by the Hearing Officer, the Commission is bound by that finding.
1. A review of Respondent's "Exceptions to Recommended Order" reveals that, although Respondent incorporates into his exceptions a "Preliminary Statement," "Summary of Hearing Officer's Recommendation," and "Introductory Facts" which are subdivided into "The $11.25 Expenditure" and "Appointment of Regan Kinzer," his only specific reference is to paragraph 12 of the Hearing Officer's Findings of Fact which we discuss in paragraph 2 below. The remainder of Respondent's exceptions are arguments which are not specifically directed at any particular paragraph of the Hearing Officer's Conclusions of Law. Respondent does not indicate that any of the Hearing Officer's specific findings of fact are not supported by competent substantial evidence.
With respect to the "$11.25 Expenditure," Respondent argues that because the City of Surfside had no guidelines as to what was an appropriate expenditure for reimbursement to a member of the City Council and because there was no showing that the Respondent acted with wrongful intent, the Hearing Officer could not conclude that he acted corruptly, as is required for a violation of Section 112.313(6), Florida Statutes, to exist. With respect to the appointment of Respondent's wife to the Advisory Board of the Surfside Community Center, Respondent reiterates his argument, which was rejected by the Hearing Officer, that his vote on his wife's appointment was compelled by Section 286.012, Florida Statutes.
To the extent that through his inclusion of his "Preliminary Statement," "Summary of Hearing Officer's Recommendation," "Introductory Facts," and argument, Respondent is requesting that the facts found by the Hearing Officer be supplemented, his exceptions are rejected. As stated by the court in Heifetz v. Department of Business Regulation, Division of Alcoholic Beverages & Tobacco, 475 So. 2d 1277, 1281 (Fla. 1st DCA 1985):
It is the hearing officer's function to consider all the evidence presented, resolve conflicts, judge credibility of witnesses, draw permissible inferences from the evidence, and reach ultimate findings of fact based on competent substantial evidence. State Beverage Department v. Ernal, Inc., 115 So. 2d 566 (Fla. 3d DCA 1959). If as is often the case, the evidence presented supports two inconsistent findings, it is the hearing officer's role to decide the issue one way or the other.
It is not our function to reweigh the evidence as long as there is competent substantial evidence to support the Hearing Officer's findings, as there is here. Inasmuch as the Hearing Officer fulfilled her function of weighing the evidence, judging the credibility of the witnesses, and drawing permissible inferences from the evidence, we are not free to supplement her findings. See Manasota 88, Inc. v. Tremor, 545 So. 2d 439 (Fla. 2d DCA 1989), where the Court stated:
Agency fact-finding independent of and supplementary to D.O.A.H. proceedings has been Specifically disapproved. See e.g. Friends of Children v. Department of Health and Rehabilitative Services, 504 So. 2d 1345 (Fla. 1st DCA 1987).
2. In paragraph 12 of the Recommended Order, the Hearing Officer finds that, with the exception of the cleaning bill, the items at issue were either plainly related to Respondent's duties or were the type of items that had been considered proper for reimbursement by the Town. She also found that there was no evidence of guidance provided to the Commissioners other than a case-by-case informal determination by the Town Manager, who also was weary of disputes and subject to removal by a majority of the Town Commission. However, Respondent argues, there was no specific prohibition against his utilizing $11.25 for dry cleaning. He also argues that it had been the position of the Town Commission and the City Attorney that the "stipend" could be used for any purpose whatsoever provided that it did not exceed the annual budgeted amount.
Although there is some question about whether Respondent received a stipend under the County's pre-May 1990 policy, his claim that the "stipend" could be used for any purpose whatsoever provided that it did not exceed the annual budgeted amount is correct, if it were a "stipend." However, the $11.24 drycleaning reimbursement did not come out of the flat allowance that Respondent refers to (if it had, questions as to its propriety would have been for the Internal Revenue Service, not for the Commission on Ethics). Therefore, the question is whether the $11.25 dry cleaning reimbursement came within the terms of Resolution 1272, that is, whether the expenditure was made "in behalf of the Town. . . for official representation, registration and expenses while attending established governmental functions in an amount not to exceed $1,000 per year in office." Even allowing for some gray areas, the $11.25 cleaning bill reimbursement clearly did not come within the terms of that resolution. Therefore, we find that the Hearing Officer's finding is supported by competent substantial evidence of record.
3. In justifying the $11.25 cleaning expense, Respondent argues that any expense incurred which would not have been incurred but for one's service as a "municipal representative" is related to the business of the City. He also argues that the $11.25 expense was related to City business, was not in contravention of City policy or rules, and was not an expenditure that Respondent endeavored to conceal. His argument, which attempts to justify reimbursement of virtually any expense by a member of the governing body, is rejected for the reasons stated in paragraph No. 2 above.
4. Respondent argues that the Hearing Officer was required to make a factual finding that the $11.25 cleaning expense was incurred with corrupt intent in violation of Section 112.313(6), Florida Statutes. He writes, "[c]orruptly" is defined in Section 112.312(9), F.S. as "done with wrongful intent."
We find that Respondent's statement is only partially correct. The definition of "corruptly" is set forth at page 7, paragraph 18 of the Hearing Officer's Conclusions of Law. Applying this definition to Section 112.313(6), Florida Statutes, the Hearing Officer was required to find that the Respondent acted with wrongful intent to obtain a benefit and such act was inconsistent with the proper performance of his public duties.
5. Respondent argues that because Section 112.313(6), Florida Statutes, is penal in nature, the Supreme Court has held that "it must be construed strictly as an act of such highly penal character is required to be construed." In City of Miami Beach v. Galbut, 626 So. 2d 192 (Fla. 1993), the Supreme Court in approving a strict construction of the anti-nepotism law (Section 112.3135(2)(a), Florida Statutes) wrote:
When a statute imposes a penalty, any doubt as to its meaning must be resolved in favor of strict construction so that those covered by the statutes have clear notice of what conduct the statute proscribes. State v. Llopis, 257 So. 2d 17, 18 (Fla. 1971).
Id. at 194. While we accept Respondent's argument, we find that a strict construction of Sections 112.313(6) and 112.3135(2)(a), Florida Statutes, does not alter the conclusions reached by the Hearing Officer.
6. Respondent argues, "it is apodictic that a person acting corruptly endeavors to conceal his acts," and the fact that Respondent made public his expenditure controverts a finding of corrupt intent. Respondent argues that his actions were "candid, forthright, patent and undertaken without any guidelines as to what is and is not considered by the City Commission to be the business of the City.
Initially, we note our disagreement with Respondent's tenet that a person acting corruptly endeavors to conceal his acts. We find that this is not always true. Secondly, while Respondent's actions may have been "candid, forthright, [and] patent, his disclosure of his expenditures was a necessary prerequisite for reimbursement for the month in which the City returned to its reimbursement system, retroactive to the first of the month. At the end of that month, Respondent quit maintaining his list. See Finding of Fact No. 8; Tr. 46. Respondent only kept his list on the advice of his accountant (Finding of fact No.6, Advocate's Exhibit A2, p. 24), who had advised him that town related expenses would not be taxed as income. Respondent kept the list out of his own self interest. We ascribe no special credit to Respondent for his disclosure. We are of the opinion that Respondent's disclosure of his list does not demonstrate a lack of wrongful intent, as Respondent contends. Finally, we note that with the exception of the cleaning expense, the Hearing Officer considered the fact that Respondent had no reasonable notice regarding the impropriety of most of the expenditures for which he sought reimbursement (See Conclusion of Law No. 22) a factor in her concluding that there was no wrongful intent. In this respect, the Hearing Officer agrees with Respondent's contention, and we do not disagree. However, with respect to the cleaning expense, the Hearing Officer properly inferred wrongful intent from her finding absurd Respondent's claim that the expense was for a public purpose.
7. Respondent argues that in order to find that he violated Section 112.313(6), a finding of specific intent is required. He argues that we must find that he "knowingly knew his conduct was wrongful and that [he] intentionally engaged in [the] wrongful conduct." He claims that no such finding is sustainable by the record.
We disagree and reject the Respondent's exception. We find that the Hearing Officer, noting the Court's admonition in Blackburn v, State Commission on Ethics, 589 So. 2d 431 (Fla. 1st DCA 1991) that an essential element of Section 112.313(6) is a finding that Respondent acted with reasonable notice that his conduct was inconsistent with the proper performance of his public duties and would be a violation of the law or the Code of Ethics, gave Respondent the benefit of the doubt on all but one of the challenged expenditures, but recognized that Respondent could not honestly have believed that the City was responsible for his dry cleaning. The determination that Respondent acted with corrupt intent essentially is a question of fact. See, Heifetz, supra, at 1282. ("Characteristically, whether one is guilty of negligence is a question for the trier of fact" even where the finding has been stated in terms of conclusion of law.) See also Dobry v. State, 211 So. 2d 603 (Fla. 3d DCA 1968). Intent is seldom susceptible of direct proof but is usually shown by circumstantial evidence. Busch v. State, 466 So. 2d 1075 (Fla. 3d DCA 1984), Williams v. State, 239 So. 2d 127 (Fla. 4th DCA 1970). Where the evidence will support conflicting findings, it is the hearing officer's role to decide the issue one way or the other (Heifetz, at 1281), as she did here. The Hearing Officer essentially found that Respondent knew that the dry cleaning expense was improper. There is competent substantial evidence of record to support the Hearing Officer's finding.
8. With respect to the Hearing Officer's conclusion that Respondent violated Section 112.3135(2)(a), Florida Statutes, by voting for the appointment of his wife to the Advisory Board of the Surfside Community Center, Respondent essentially argues again that he was compelled by Section 286,012, Florida Statutes, to vote on his wife's appointment. For the reasons stated in the Hearing Officer's Conclusions of Law, Respondent's exception is rejected.
Section 286.012 allows abstention when "there is, or appears to be, a possible conflict of interest under the provisions of Sections 112.311, 112.313, or 112.3143, Florida Statutes." Section 112.311, states, in part:
(1) It is essential to the proper conduct and operation of government that public officials be independent and impartial and that public office not be used for private gain other than the remuneration provided by law. The public interest, therefore, requires that the law protect against any conflict of interest and establish standards for the conduct of elected officials and government employees in situations where conflicts may exist.
. . . .
(6) It is declared to be the policy of the state that public officers and employees, state and local, are agents of the people and hold their positions for the benefit of the public. They are bound to uphold the Constitution of the United States and the State Constitution and to perform efficiently and faithfully their duties under the laws of the federal, state, and local governments. Such officers and employees are bound to observe, in their official acts, the highest standards of ethics consistent with this code and the advisory opinions rendered with respect hereto regardless of personal considerations recognizing that promoting the public interest and maintaining the respect of the people in their government must be of foremost concern. (Emphasis supplied.)
Respondent could have abstained from voting based on this section and would not have been in violation of Section 286.012, Florida Statutes.
Where, as here, there is no requirement of wrongful intent, Respondent's reliance on the incorrect advice of counsel is not a defense. See In re Michael Kenton, 13 FALR 1295, 1317 (Commission on Ethics 1989). Respondent's reliance on the prior advice of counsel mitigates, but does not obviate the violation. See James Gordon v. Commission on Ethics, 609 So. 2d 125 (Fla. 4th DCA 1992).
Upon review of the record before us, we conclude that the findings of the Hearing Officer are based upon competent substantial evidence and that the D.O.A.H. proceedings complied with the essential requirements of law. Therefore, the Findings of Fact set forth in the Recommended Order are approved, adopted, and incorporated herein by reference.
The Conclusions of Law set forth in the Recommended Order are approved, adopted, and incorporated herein by reference.
Accordingly, the Commission on Ethics finds that the Respondent violated Section 112.313(6), Florida Statutes, by seeking and receiving reimbursement for his expenditure of $11.25 for dry cleaning and Section 112.3135(2)(a), Florida Statutes, with regard to his voting on the appointment of his wife to the Town's advisory board.
The Hearing Officer recommended that Respondent be required to pay a penalty of $11.25 restitution and a civil penalty of $300.00, for a total of $311.25. We find her recommendation to be appropriate.
Having found that the Respondent, Mitchell Kinzer, as a member of the Surfside Town Commission, violated Sections 112.313(6) and 112.3135(2)(a), Florida Statutes, it is the recommendation of the Commission on Ethics that a penalty of restitution of $11.25 and a civil penalty of $300.00 be imposed upon him, for a total of $311.25.
ORDERED by the State of Florida Commission on Ethics meeting in public session on April 21, 1994.
Joel K. Gustafson
THIS ORDER CONSTITUTES FINAL AGENCY ACTION. ANY PARTY WHO IS ADVERSELY AFFECTED BY THIS ORDER HAS THE RIGHT TO SEEK JUDICIAL REVIEW UNDER SECTION 120.68, FLORIDA STATUTES, BY FILING A NOTICE OF ADMINISTRATIVE APPEAL PURSUANT TO RULE 9.110 FLORIDA RULES OF APPELLATE PROCEDURE, WITH THE CLERK OF THE COMMISSION ON ETHICS, 2822 REMINGTON GREEN CIRCLE, SUITE 101, P.O. DRAWER 15709, TALLAHASSEE, FLORIDA 32317-5709; AND BY FILING A COPY OF THE NOTICE OF APPEAL ACCOMPANIED BY THE APPLICABLE FILING FEES WITH THE APPROPRIATE DISTRICT COURT OF APPEAL. THE NOTICE OF ADMINISTRATIVE APPEAL MUST BE FILED WITHIN 30 DAYS OF THE DATE THIS ORDER IS RENDERED.
cc: Mr. Neal L. Sandberg, Attorney for Respondent
Ms. Virlindia Doss, Commission Advocate
Honorable Mary Clark, Hearing Officer
Division of Administrative Hearings