STATE OF FLORIDA
COMMISSION ON ETHICS
In re WINSTON W. "BUD" GARDNER, )
) DOAH Case No. 92-4946EC
Respondent. ) Complaint No. 90-216
) COE Final Order No. 93-__
On April 7, 1993, a Hearing Officer from the Division of Administrative Hearings (DOAH) submitted to the parties and the Commission her Recommended Order, a copy of which is attached hereto. On April 27, 1993, Respondent timely filed exceptions to the Recommended Order. The Commission's Advocate filed her Response to Respondent's Exceptions on May 10, 1993. The matter thereafter came before the Commission on Ethics for final agency action.
This matter began with the filing of a complaint by Robert Rubin, alleging that Winston W. "Bud" Gardner had violated the Code of Ethics for Public Officers and Employees. The allegations were found to be legally sufficient to allege a possible violation of Section 112.313(4), Florida Statutes, and Commission staff undertook a preliminary investigation to aid in the determination of probable cause. On July 22, 1992, the Commission on Ethics issued an order finding probable cause, and thereafter forwarded this matter to the Division of Administrative Hearings for conduct of a formal hearing and entry of a recommended order. The parties waived the formal hearing and submitted documents, deposition testimony, and stipulated facts in lieu thereof. The parties then filed proposed recommended orders with the Hearing Officer. The Recommended Order was transmitted to the Commission and the parties on April 7, 1993, and the parties were notified of their right to file exceptions to the Recommended Order in accordance with Rule 34-5.022(2), Florida Administrative Code. Respondent timely filed exceptions on April 27, 1993, and the Commission's Advocate filed a Response to Respondent's Exceptions on May 10, 1993.
1. Respondent takes exception to the Hearing Officer's Finding of Fact 12, which states in essence, "it was the job of the testifying lobbyists to try and influence legislators." Respondent submits that there is no competent substantial evidence to support said finding.
As pointed out in the Advocate's Response and based upon our independent review of the deposition testimony upon which this finding is based, the record reveals competent substantial evidence to support this finding. See Prentiss Mitchell deposition, pp. 7-8, 11-12; Buddy McCue deposition, pp. 7-8; and Paul Sanford deposition, pp. 6-7.
There being competent substantial record evidence, Respondent's Exception No. 1 is rejected.
2. Exception No. 2 takes issue with Finding of Fact 13, which stated, "The trip came right before the final two weeks of the legislative session when most bills are passed." Respondent argues that there is no competent substantial evidence to support this finding since no evidence was adduced which addressed the passing or timing of voting on legislation during the 1988 legislative session.
The Advocate's Response cites to evidence in the record to support the Hearing Officer's finding.
Our review of the record in this matter reveals the existence of competent substantial evidence. See Prentiss Mitchell deposition, pp. 24-25; Charlie Hood deposition, pp. 23-24. Accordingly, Respondent's exception No. 2 is rejected.
3. Respondent excepts to Finding of Fact 16, which found: "Mr. Mitchell and Respondent were friends, but their friendship centered on their business relationship. . . . This was not a pleasure trip motivated by friendship between the Respondent and his hosts." Respondent objects to this finding, arguing that it is not based upon competent substantial evidence. Respondent points to other evidence in support of his assertion that he and the lobbyists in question were personal friends.
The Advocate's Response argues that the Hearing Officer's finding is supported by competent, substantial evidence, and cites to the Prentiss Mitchell deposition, p. 25, and to the Mike Huey deposition, p. 23.
In Heifetz v. Department of Business Regulation, 475 So.2d 1277 (Fla. 1st DCA 1985), the First District Court of Appeal noted:
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. Id., at 1281.
There is competent, substantial evidence to support the Hearing Officer's assessment of the Respondent's relationships with the various lobbyists. Accordingly, Respondent's Exception No. 3 is rejected.
4. Respondent's Exception No. 4 is directed to Finding of Fact No. 18, which found a direct nexus between that trust/access and desired influence which the lobbyists sought to engender in providing the Key West trip to the Respondent. Respondent argues that the Hearing Officer's finding is not supported by competent, substantial evidence.
Our review of the record indicates that there is competent, substantial evidence upon which to base this finding. In addition to the testimony of Paul Sanford cited by the Advocate in her response, the following also supports the Hearing Officer's finding of fact: Prentiss Mitchell deposition, pp. 26-27; Robert Coker deposition, pp. 13,17-18; Bud Williamson deposition, pp. 15; Mike Huey deposition, p.21; Charlie Hood deposition p. 19; Buddy McCue deposition, p. 10. Furthermore, the Commission's holdings in In re George Kirkpatrick, Complaint No. 90-172, and In re Tim Deratany, Complaint Nos. 90-135 and 90-171, are precedentially dissimilar to the situation confronted here. Accordingly, Respondent's Exception No. 4 is rejected.
5. Respondent's Exception No. 5 is directed to Finding of Fact 23, which found that "statements made by the Respondent reveal that he knew that the intent of the lobbyists was to influence him in the performance of his official duties." Respondent argues that this finding is directly contrary to the substantial competent evidence, the Respondent's testimony, and statements contained in his letter.
The Advocate argues in her response that there is competent, substantial evidence to support the Hearing Officer's finding, and she quotes language directly from the Respondent's letter in support of the Hearing Officer's finding.
We are again reminded of the First District Court of Appeal's guidance in Heifetz, where they stated:
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. The agency may not reject the hearing officer's finding unless there is no competent, substantial evidence from which the finding could reasonably be inferred. The agency is not authorized to weigh the evidence presented, judge credibility of witnesses, or otherwise interpret the evidence to fit its desired ultimate conclusion. Supra, at 1281.
The Hearing Officer specifically cites the Respondent's statement that supports this finding, which we find to constitute competent substantial evidence. Therefore, the Respondent's Exception No. 5 is rejected.
6. Respondent's Exception No. 6 is directed not to a finding of fact but, instead, to the Hearing Officer's rejection of a proposed finding of fact submitted by the Respondent. Respondent argues that the Hearing Officer's rejection of his proposed Finding of Fact No. 11 was erroneous.
Section 120.59(2), Florida Statutes, requires of the Hearing Officer "a ruling upon each proposed finding and a brief statement of the grounds for denying the application or request." See also: Island Harbor Beach Club, Ltd. v. Department of Natural Resources, 476 So.2d 1350 (Fla. 1st DCA 1985), appeal after remand, 495 So.2d 209, review denied, 503 So.2d 327. A review of the Appendix attached to the Recommended Order indicates that Respondent's proposed Finding of Fact No. 11 was "Rejected as irrelevant." The proposed Finding itself is directed at a 1987 trip involving the Respondent and lobbyists.
The Commission's Advocate argues that the proposed finding was rejected as irrelevant, and properly so, because: 1) Mr. Guzzo's lack of awareness as to any discussion of specific legislation neither proves nor disproves the existence of such discussion; 2) there is no requirement that specific issues be discussed in order for a violation of Section 112.313(4), Florida Statutes, to have occurred; and 3) what Respondent was "apparently" asked was meaningless.
For the reasons cited by the Advocate, it would appear that the Hearing Officer's rejection of this proposed finding was properly within her discretion. Therefore, Respondent's Exception No. 6 is rejected.
7. Respondent's Exception No. 7 is also directed to the Hearing Officer's ruling on a proposed finding of fact submitted by the Respondent.
In ruling of the Respondent's proposed finding, the Hearing Officer states:
Adopted in part in Paragraph 5. While relaxation was the reason for the venue, it was not the trip's primary purpose as established by the greater weight of the evidence.
The Advocate responds by labelling the Respondent's challenge to the Hearing Officer's ruling as a back-door method of challenging the Hearing Officer's findings that the lobbyists' intent in providing the trip was to influence the Respondent, and that he was aware of this intent.
The Advocate is correct. The Respondent's exception is nothing more than a request that the Commission reweigh the evidence in this regard, which it will not do. Heifetz, supra. Inasmuch as there is competent, substantial evidence to support the Hearing Officer's findings of fact in this regard, the Respondent's Exception No. 7 is rejected.
8. The Respondent's Exception No. 8 is directed to the Hearing Officer's rejection of a proposed finding of fact submitted by the Respondent which suggested that the Respondent was willing to pay his share of the trip's expenses. The Hearing Officer's stated reason for rejecting this proposed finding was: "Adopted in part in Paragraph 9, otherwise, rejected as contrary to the weight of the evidence."
The Advocate argues, "The Hearing Officer clearly disbelieved Respondent's contention that he was willing to pay for the trip . . . in view of his failure to even attempt to do so." The Advocate further characterizes the Respondent's exception as "a challenge to the inferences drawn by the Hearing Officer, which are supported by competent, substantial evidence."
In accordance with the directive of Heifetz, supra, we will refrain from reweighing the evidence as found by the Hearing Officer. Accordingly, Respondent's Exception No. 8 is rejected.
9. Respondent next excepts to the Hearing Officer's rejection as irrelevant his proposed finding involving the cost per client. Respondent argues that his belief as to the cost per client is relevant under prior Commission rulings which suggest that the cost of the thing of value given is a fact to consider when determining whether Section 112.313(4), Florida Statutes, has been violated.
The Advocate points out in her response that the value of the gift is measured by what it costs to acquire it, not how many people united to purchase it.
While Respondent's arguments might have some relevance if the issue involved gift acceptance and disclosure pursuant to Section 112.3148, Florida Statutes, and Rule 34-12.510, Florida Administrative Code, they are without merit in determining whether the Respondent received a "thing of value" for purposes of Section 112.313(4), Florida Statutes. The "thing of value" that the Respondent received was a trip for him and his wife with a value of $1,346. Finding of Fact 7. Because there is competent, substantial evidence to support the Hearing Officer's findings in this regard, the Respondent's Exception No. 9 is rejected.
10. Respondent's Exception No. 10 is directed at the Hearing Officer's rejection of a proposed finding of fact submitted by the Respondent. Although the Respondent argues that the Hearing Officer erroneously rejected the proposed finding as "unnecessary," our review of the Appendix to the Recommended Order reveals that the Hearing Officer's explanation for rejecting the proposed finding is much more explicit. Specifically, the ruling states:
Rejected as unnecessary. The cost of the trip is relevant, but Respondent's belief that the cost was "fairly minor" is either not credible (if calculated to disavow his knowledge of the intent to influence) or simply inconclusive. "Fairly minor" is meaningless.
The Respondent is asserting that his proposed finding was relevant on the issue of determining his knowledge of the intent to influence. However, because the Hearing Officer specifically rejected the proposed finding for the purpose now asserted by the Respondent partially as not being credible, our understanding of Heifetz, supra, restricts our ability to reweigh the evidence and revisit credibility determinations made by the Hearing Officer. Further, as pointed out by the Advocate in her response, there is competent, substantial evidence in the record underlying those findings and credibility determinations. Therefore, Respondent's Exception No. 10 is rejected.
11. Exception No. 11 is directed to the Hearing Officer's Conclusion of Law No. 29, in which the Respondent argues, inter alia, that the lobbyists did not have the requisite intent to influence the Respondent because no particular legislation was identified upon which he was expected to act.
The Hearing Officer correctly applied the Commission's holding in In re Bernard Hart, 14 FALR 1054 (1991), aff'd, 603 So.2d 1286 (Fla. 4th DCA 1992), to the issue of whether the Respondent violated Section 112.313(4), Florida Statutes. Accordingly, the Respondent's Exception No. 11 is rejected.
12. Exception No. 12 is directed to Conclusion of Law 31. The Respondent argues that his situation is controlled by the Commission's holding in In re James Resnick, 14 FALR 1002 (1991), and that the Hearing Officer erroneously distinguished Resnick.
We agree with the Hearing Officer's distinction between Resnick and the situation presented here. Therefore, the Respondent's Exception No. 12 is rejected.
13. Exception No. 13, although labelled an Exception to a Conclusion of Law, is in actuality an Exception to a Finding of Fact. For the reasons expressed in paragraph 4 above, Respondent's Exception No. 13 is rejected.
14. Respondent's Exception No. 14 is directed to Conclusion of Law No. 33, and suggests that the Hearing Officer's reliance on CEO 75-21 and CEO 75-43 may be misplaced since the statute discussed in those opinions, Section 112.313(2)(a), Florida Statutes (1975), was subsequently declared unconstitutional. However, the underlying principal, that most persons and entities do not give away "something for nothing," is still correct, as even the Respondent acknowledged. Accordingly, the Respondent's Exception No. 14 is rejected.
15. In summary fashion, Respondent's Exception No. 15 excepts to the Hearing Officer's Conclusions of Law Nos. 34 through 38. Again, the Respondent has mislabelled this exception as an exception to a Conclusion of Law, when it is really directed to the Hearing Officer's factual findings. For the reasons expressed in Paragraph 4 above, Respondent's Exception No. 15 is rejected.
16. Respondent's Exception No. 16 excepts to Conclusion of Law No. 43, in which the Hearing Officer discussed the applicability of Section 112.324(7)(i), Florida Statutes. The Hearing Officer correctly concluded that this provision authorizes the Commission to recommend a penalty to, in this case, the Speaker of the House. Moreover, as noted by the Advocate in her response, Respondent incorrectly argues that in 1988, the law provided no penalties for violations of Section 112.313(4), Florida Statutes, by former members of the legislature. The Advocate correctly recognizes that at the time Rehm violated Article II, Section 8(e), Florida Constitution, in the case In re Gerald Rehm, 14 FALR 4247 (1992), there were no penalties for violations of that provision. Thus, Respondent's Exception No. 16 is rejected.
The findings of fact set forth in the Recommended Order are approved, adopted, and incorporated herein by reference.
1. The Conclusions of Law set forth in the Recommended Order are approve, adopted, and incorporated herein by reference.
2. Accordingly, the Commission on Ethics finds that the Respondent violated Section 112.313(4), Florida Statutes.
The Hearing Officer recommended that the Commission impose a civil penalty in the amount of $1346. This amount reflects the value of the trip to Key West received by the Respondent and his wife. The Hearing Officer reasoned that because the Respondent is no longer a public official, the imposition of a penalty as a deterrent makes no sense. The Hearing Officer also concluded that restitution to the donors would amount to a windfall, but that the value of the trip the Respondent and his wife received provided a benchmark for establishing a civil penalty.
At the hearing before this Commission, the Commission's Advocate argued for an increase in the recommended penalty above that which was recommended by the Hearing Officer. In urging that the Commission impose a civil penalty in the amount of $3000, a restitution penalty in the amount of $1346, and public censure and reprimand, the Advocate argued that imposition of a restitution penalty alone would be inconsistent with prior agency action; would not serve as a deterrent; and does not address the impropriety of the Respondent's actions. Counsel for Respondent argued that the Advocate waived her right to except to the penalty because she did not timely file any exceptions on this issue.
An agency's power to modify a recommended order flows from Section 120.57(1)(b)10, Florida Statutes, and is not dependent upon the filing of any exceptions. Here, the Commission has reviewed the complete record in this matter and rejects the penalty recommended by the Hearing Officer for the following reasons:
1. Requiring the Respondent to only repay that amount which he unlawfully received is inappropriate. In the case In re George Costage, Complaint No. 91-37, (Final Order entered 12/8/92), the Commission recommended a civil penalty in the amount of $______, even though the record indicated that Costage had repaid the city for the travel benefits he was not entitled to receive. In the case In re Bernard Hart, supra, the Commission recommended that Hart pay a civil penalty of $4200, which amount was the total of
the benefit he received and a penalty of $3500. Thus, it would be inconsistent with prior Commission action to not impose a civil penalty here.
2. Additionally, because one of the purposes for imposing a penalty is to deter others from similar conduct, a restitution penalty of $1346 is inadequate. If public officers and employees believe that they can violate Section 112.313(4), Florida Statutes, and, if they are caught, only be required to repay the value of that which they received, no deterrence is effectuated.
3. Finally, the Hearing Officer found that the Respondent violated Section 112.313(4), Florida Statutes, and we have accepted that finding. This is a serious violation of the Code of Ethics for Public Officers and Employees and merits a substantial penalty. A restitution penalty of $1346 does not adequately address the seriousness of Respondent's offense.
Having found that the Respondent, Winston W. "Bud" Gardner, as a member of the Florida House of Representatives, violated Section 112.313(4), Florida Statutes, as described herein, pursuant to Sections 112.317(1) and 112.324(7), Florida Statutes, it is the recommendation of the Commission on Ethics that a restitution penalty be imposed upon the Respondent in the amount of $1346; a civil penalty be imposed upon the Respondent in the amount of $3000; and that the Respondent receive a public censure and reprimand.
ORDERED by the State of Florida Commission on Ethics meeting in public session on Friday, June 11, 1993.
Stephen N. Zack
YOU ARE NOTIFIED THAT YOU ARE ENTITLED PURSUANT TO SECTION 120.68, FLORIDA STATUTES, TO JUDICIAL REVIEW OF AN ORDER WHICH ADVERSELY AFFECTS YOU. REVIEW PROCEEDINGS ARE COMMENCED BY FILING A NOTICE OF ADMINISTRATIVE APPEAL WITH THE APPROPRIATE DISTRICT COURT OF APPEAL, AND ARE CONDUCTED IN ACCORDANCE WITH THE FLORIDA RULES OF APPELLATE PROCEDURE. THE NOTICE OF ADMINISTRATIVE APPEAL MUST BE FILED WITHIN 30 DAYS OF RENDITION OF THE ORDER TO BE REVIEWED.
cc: Mr. Leonard J. Dietzen, III, Attorney for Respondent
Ms. Virlindia Doss, Commission's Advocate
Mr. Robert Rubin, Complainant
Division of Administrative Hearings