STATE OF FLORIDA
COMMISSION ON ETHICS
In re JOSEPH G. SPICOLA,
Complaint No. 91-4
Respondent. DOAH Case No. 91-6730EC
FINAL ORDER AND PUBLIC REPORT
This matter came before the Commission on Ethics on the Recommended Order rendered in this matter on March 24, 1992, by the Division of Administrative Hearings (a copy of which is attached and incorporated by reference). The Hearing Officer recommends that the Commission find that Respondent violated Sections 112.313(3) and(7), Florida Statutes. Respondent filed exceptions to certain language employed by the Hearing Officer in Part D of the Hearing Officer's Conclusions of Law, the "Penalty" section, and to the amount of penalty he recommended.
Having reviewed the Recommended Order, the Respondent's exceptions, and the record of the public hearing of this complaint, and having heard the arguments of counsel for the Respondent and the Commission's Advocate, the Commission makes the following findings, conclusions, rulings and recommendations:
Findings of Fact
The Findings of Fact set forth in the Recommended Order are approved, adopted, and incorporated herein.
Conclusions of Law
Paragraphs A, B and C of the Hearing Officer's recommended Conclusions of Law are approved, adopted, and incorporated herein by reference.
1. Paragraph No. 2 of the Hearing Officer's recitation of facts as set forth in Part D (Penalty) on page 15 of the Hearing Officer's Recommended Order is modified to read:
Mr. Spicola is an attorney who has been
involved in government service for many years.
although he has been given the benefit of the
doubt as to whether he was actually aware that
his actions violated the Ethics Code, he should
have at least looked into the matter to be sure
that his actions were not in violation of any
law. Having been involved in government for as
long as Mr. Spicola has, he should have been
more circumspect about the actions he took
which obviously involved use of public funds to
benefit himself. Mr. Spicola's error was in
not reading the Ethics Code and ignoring his
responsibility as a public servant and the
concerns which any reasonable person should
have about the use of public funds for his or
In making these changes, we note that the changes relate to the Hearing Officer's editorialized comments, rather than to the recommended penalty itself. However, the next two paragraphs on the top of page 16 of the Hearing Officer's Recommended Order, which Respondent also has requested be changed, shall remain the same and the Respondent's exceptions to the language employed by the Hearing Officer in these two paragraphs are rejected.
2. We reject the Hearing Officer's rationale for declining to recommend that restitution be assessed against Respondent as Section 112.317(1)(d)3., Florida Statutes, permits, because we find that his rationale is incorrect as a matter of law. Therefore, the last paragraph on page 16 shall be modified by striking the sentence at the bottom of page 16 and the top of page 17 and inserting the following:
In addition to any criminal penalty or other
civil penalty involved, Section
112.3l7(1)(d)3., Florida Statutes, among other
things, permits the imposition of restitution
against the public employee of any pecuniary
benefits received because of the violation.
However, a review of the record here indicates
that there is insufficient evidence upon which
to base a determination of the pecuniary
benefits received because of the violations
committed; therefore, no restitution is
3. We also reject the Hearing Officer's recommended penalty and, consequently, paragraphs Nos. 4 and 5 on page 16 of the Recommended Order. We find that the correct penalty in this case is a fine of $5,000 for each violation for a total penalty of $10,000. This penalty is appropriate for the following reasons:
a) Respondent is a lawyer of substantial experience
of more than 30 years, who sat at the right hand of the
Governor as his chief legal advisor. For a year and a
half he repeatedly referred work to his own law
firm,totaling approximately $71,000. He argues that his
actions should be excused because he did not read the
law. This excuse is not acceptable. We believe that we
should be governed by our own precedent to the extent
possible. Recently the case of In re Walter Stotesbury,
Complaint No. 89-160, 14 FALR 1017 (1991), aff'd,
Stotesbury v. State, Commission on Ethics, ___ So.2d ___
(Fla. 1st DCA 1992) (decided March 30, 1992), was
affirmed by the First District Court of Appeal without
opinion. In that case, the Commission recommended a
penalty of $5,000 for two isolated instances in which
Stotesbury, a member of an Airport Authority, not a
lawyer with substantial experience of 30 years or more
sold securities to and did business with a fixed based
operator of the airport. Here, the Hearing Officer's
recommended penalty appears to be a mere slap on the
wrist for repeated transactions that occurred over a year
and a half.
b) We also believe that a penalty that will be a
deterrence to others should be imposed here. An
increased penalty of $10,000 will indicate that a public
employee/lawyer cannot refer almost $71,000 worth of
business to a law firm of which he owns a 50% interest
and receive only a relatively minor penalty in the amount
of $4,000. Under these circumstances, the $4,000 penalty
recommended by the Hearing Officer is not a deterrent; it
is tantamount to the "cost of doing business."
Accordingly, the Commission on Ethics, having found that the Respondent, Joseph G. Spicola, violated Sections 112.313(3) and 112.313(7), Florida Statutes, recommends that a civil penalty be imposed upon Respondent in the amount of $10,000.
ORDERED by the State of Florida Commission on Ethics meeting in public session on Friday, June 5, 1992.
June 11, 1992
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. John R. Lawson, Attorney for Respondent
Ms. Virlindia Doss, Commission Advocate
Mr.Richard L. Murphy, Complainant
Division of Administrative Hearings