STATE OF FLORIDA
COMMISSION ON ETHICS
In re GEORGE HAMEETMAN, )
Respondent. ) Complaint No. 96-103
) DOAH No. 98-4642EC
) Final Order No. COE 00-024
FINAL ORDER AND PUBLIC REPORT
This matter came before the State of Florida Commission on Ethics, meeting in public session on June 1, 2000, pursuant to the Recommended Order of the Division of Administrative Hearings' Administrative Law Judge rendered in this matter on JANUARY 20, 2000 [a copy of which is attached and incorporated by reference]. The Administrative Law Judge recommends that the Commission enter a final order and public report finding that the Respondent, GEORGE HAMEETMAN, as Mayor of the City of Hialeah Gardens, did not violate Section 112.313(6), Florida Statutes, by removing City property from the Mayor’s office prior to his vacating the premises at the end of his term of office, but did violate Section 112.313(6) by manipulating City fiscal practices in an effort to afford himself a tax benefit and 112.313(7)(a) by having a contractual relationship with Perfect Builders, a construction company, doing business with the City, and recommending that a civil penalty of $3,000 and restitution of $3,618.81 be imposed upon him and that he be publicly reprimanded and censured.
This matter began with the filing of a complaint and two amendments by Gilda Cabrera, a/k/a Gilda Cabrera De Corzo, a/k/a Gilda C. Oliveros, alleging that the Respondent, as Mayor of the City of Hialeah Gardens violated Sections 112.313(3), 112.313(6), and 112.313(7)(a), Florida Statutes. On March 10, 1998, the Commission on Ethics issued an order finding probable cause to believe that the Respondent had violated Section 112.313(6), Florida Statutes, by manipulating city fiscal practices in an effort to afford himself a tax benefit and by removing City furniture that had been donated to the City from the Mayor’s office prior to vacating the premises at the end of his term in office and Section 112.313(7)(a), Florida Statutes, by having a contractual or employment relationship with Perfect Builders while that company was doing business with the City of Hialeah Gardens. A formal evidentiary hearing was held before the Administrative Law Judge on August 20, 1999, by video teleconference between Tallahassee and Miami. A transcript of the hearing was filed and the parties then filed proposed recommended orders with the Administrative Law Judge. The Recommended Order was transmitted to the Commission and the parties on January 20, 2000, and the parties were notified of their right to file exceptions to the Recommended Order with the Commission within 15 days from the date that the Recommended Order was rendered (by February 4, 2000). Respondent’s Motion for Additional Time to File Exceptions was granted by the Commission Chair on February 9, 2000, and both the Respondent and the Commission Advocate were given until February 29, 2000 to file their exceptions.
Thereafter, Respondent timely filed his exceptions, however neither his exceptions nor his certificate of service were signed. On March 6, 2000, the Commission Advocate filed a Motion to Strike Respondent’s Exceptions claiming that both Section 120.569(2)(e), Florida Statutes, and Fla. R. Jud. Admin. 2.060(d) requires attorneys to sign all pleadings and papers and provides that, if a pleading is not signed, the agency may proceed as though the pleading or other paper had not been served. However, rather than filing an immediate response to the Commission Advocate’s Motion to Strike Respondent’s Exceptions or signed exceptions, on March 9, 2000, Respondent filed a document entitled “Motion To Relief,” which, for various reasons connected to the testimony of the Commission Advocate's expert, James Warmus, asked the Commission to set aside that part of the Administrative Law Judge’s Recommended Order relating to her conclusion that the Respondent violated Section 112.313(6), Florida Statutes. On March 10, 2000, the Commission Advocate filed a Motion to Strike Respondent’s Motion To Relief claiming that there is neither statutory nor rule authority for Respondent’s “Motion To Relief,” and that, although the Motion contains a signed Certificate of Service, the Motion itself is unsigned. Respondent's “Response To Advocate’s Motion To Strike,” which bears a March 15, 2000 Certificate of [Mail] Service date, was filed with the Commission on March 21, 2000, seven days after it was due to be filed. No explanation as to its being filed late was provided by the Respondent. Within Respondent’s “Response to Advocate’s Motion to Strike” was a page entitled “Motion For Leave to Amended [sic],” in which he requested that he be granted leave to amend his exceptions. Filed separately, but along with Respondent’s response, was Respondent’s “Amended Exceptions Pursuant Rule 28-106.217, F.A.C. To ALJ Recommended Order.” In her “Reply To Respondent’s Response To Advocate’s Motion To Strike Respondent’s Exceptions,” which also was filed on March 21, 2000, the Commission Advocate noted that Respondent’s Amended Exceptions contain no separate signature line above the Certificate of Service, which, although signed, also is undated and does not contain his Florida Bar number.
In an order issued April 11, 2000, Nunc pro tunc April 3, 2000, the Commission Chair, acting in his capacity as “Presiding Officer” pursuant to Rules 28-106.102 and 28-106.204(1) of the Uniform Rules of Administrative Procedure and Rule 34-5.0008, F.A.C., granted the Commission Advocate’s Motion to Strike Respondent’s exceptions and denied Respondent’s Motion to file Amended Exceptions. He ruled that inasmuch as Section 120.569(2)(e), Florida Statutes, and Fla. R. Jud. Admin. 2.060(d) require attorneys to sign all pleadings and papers and provide that, if a pleading is not signed, the agency may proceed as though the pleading or other paper had not been served, and inasmuch as neither Respondent’s initial Exceptions nor his Certificate of Service were signed, and inasmuch as the totality of the circumstances including Respondent's failure to timely file a response to the Advocate's Motion to Strike his exceptions, which response was not considered because the Response was not timely filed and no explanation or justification was provided for its untimely filing, Respondent’s continuing to file motions and responses to motions with only a signed Certificate of Service without providing any justification or excuse for his failure to abide by the applicable rules and statute, even after the Advocate, through her pleading, put the Respondent on notice of possible defects in his pleadings, and his failure to timely file amended pleadings and exceptions that comply with the applicable rules and statute, evidences either deliberate disregard of the Commission’s authority or willful disregard or gross indifference to the applicable rules of procedure or deliberate callousness, for which the granting of the Advocate's Motion to Strike Respondent’s Exceptions and the denial of Respondent's Motion to file Amended Exceptions are appropriate sanctions. The Commission Chair also denied Respondent’s Motion to Relief and granted the Commission Advocate’s Motion to Strike Respondent’s Motion To Relief after ruling that Respondent's motion appears to be further amplification of exceptions that the Respondent had already made in his unsigned exceptions which were filed outside of the 15 day time frame for filing exceptions permitted by R. 28-106.217, F.A.C., and the extended period authorized on February 9, 2000, and that there is neither statutory nor rule authority for Respondent’s motion.
Under Section 120.57(1)(l), 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 Administrative Law Judge 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 Administrative Law Judge, the Commission is bound by that finding.
Under the Section 120.57(1)(l), Florida Statutes, an agency may reject or modify the conclusions of law over which it has substantive jurisdiction and interpretations of administrative rules over which it has substantive jurisdiction. When rejecting or modifying such conclusion of law or interpretation of administrative rule the agency must state with particularity its reasons for rejecting or modifying such conclusion of law or interpretation of administrative rule and must make a finding that its substituted conclusion of law or interpretation of administrative rule is as or more reasonable than that which was rejected or modified.
Having reviewed the Recommended Order, the Commission makes the following findings, conclusions, rulings and recommendations.
Because the Commission Advocate’s Motion to Strike Respondent’s Exceptions was granted and because the Commission Advocate did not file exceptions to the Recommended Order, there were none before the Commission for it to consider and rule on. Therefore, after considering the Recommended Order in public session pursuant to notice to the Advocate and the Respondent, the Commission adopts the Recommended Order in full.
Accordingly, the Commission on Ethics finds that the Respondent, GEORGE HAMEETMAN, as Mayor of the City of Hialeah Gardens, violated Section 112.313(6), Florida Statutes, by using his official position corruptly to reverse a bank transaction that resulted in his expense reimbursement payment being attributable to him as income for the 1995 tax year, rather than the 1994 tax year, in order to benefit himself at the cost of exposing the City to tax penalties, and Section 112.313(7)(a), Florida Statutes, by having a contractual relationship with Perfect Builders, a construction company, doing business with the City.
Pursuant to Sections 112.317(1) and 112.324(4), Florida Statutes, it is the recommendation of the Commission on Ethics that the Respondent be publicly censured and reprimanded and that a civil penalty in the amount of $3,000.00 (Three Thousand dollars) and restitution in the amount of $3,618.81 (Three Thousand, Six Hundred and Eighteen dollars and Eighteen cents) be imposed against him.
ORDERED by the State of Florida Commission on Ethics meeting in public session on June 1, 2000.
Peter M. Dunbar
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 ATTACHED TO WHICH IS A CONFORMED COPY OF THE ORDER DESIGNATED IN 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. Charles Toledo, Attorney for Respondent
Ms. Virlindia Doss, Commission Advocate
Ms. Gilda Oliverso, Complainant
Division of Administrative Hearings