BEFORE THE
STATE OF FLORIDA
COMMISSION ON ETHICS
In re LEO C.
NICHOLAS, )
)
Respondent. ) Complaint No.87-47
)
______________________________)
RECOMMENDED PUBLIC REPORT OF
HEARING OFFICER
This matter was initiated by
the filing of a complaint by the Complainant, Helen S. Filkins, who alleged
that the Respondent, Leo C. Nicholas, violated Section 112.313(6), Florida
Statutes. Following a preliminary investigation,
the Commission on Ethics found probable cause and ordered a public hearing on
the issue of whether the Respondent, as the City Manager for the City of Cape
Canaveral, violated Section 112.313(6), Florida Statutes, by ordering Mr. Artis
Gunn, the City Building Official for the City of Cape Canaveral, to issue a
building permit for a project known as Gizella Townhomes.
A public hearing was held on
Monday, November 14, 1988, in Cape Canaveral, 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, and R. Frazier
Solsberry, Esq., appeared on behalf of the Respondent.
At the public hearing the
Advocate called the following witnesses:
Artis A. Gunn, Elly F. Johnson, Fredrick C. Nutt, Gerald Wilson, Clyde
Pirtle, Jeffrey Eckley, Josephine Hughes, and Evelyn Hutcherson. The Respondent called the following
witnesses: James Theriac and Leo C. Nicholas.
The parties filed a prehearing stipulation, and various exhibits
presented by the parties were received in evidence. Depositions were filed by the Attorney for the Respondent and by
the Commission Advocate, but they were not received in evidence and therefore
have not been considered by the Hearing Officer in making the findings of fact
contained in this order.
The parties have submitted
proposed findings of fact and conclusions of law which have been considered by
the Hearing Officer. Specific rulings
on each party's 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"; references to the
Prehearing Stipulation filed by the parties are made by the letter
"S"; 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.
After the presentation of
evidence by the Commission Advocate, the Respondent moved for a proposed
finding that the Advocate failed to satisfy his burden of proof; the Hearing
Officer deferred ruling on that motion.
T 278-289. After the Respondent
rested his case, he renewed his motion, and the Hearing Officer again deferred
ruling. T 296-297. The Respondent's motion is hereby denied on
the basis of the findings of fact and conclusions of law reached in this order.
From the evidence presented
at the hearing, the undersigned Hearing Officer finds as follows:
1. The Respondent, Leo C. Nicholas, serves as the City Manager of
the City of Cape Canaveral, and has served in that position at all times
material to this complaint. S (e)1.
2. Mr. Artis Gunn formerly served as the Building Official for Cape
Canaveral for approximately three and one-half years, and held that position
for the first three months of 1987. T
26, 44-45. Mr. Gunn was hired as
Building Official by the former City Manager, Mr. Frederick C. Nutt. T 155-56.
3. A townhome project, known as Gizella Townhomes, was approved by
the City of Cape Canaveral, apparently in 1986. The preliminary plat and the site plan for the project apparently
were approved with certain conditions which were not made clear at the public
hearing. The application for a building
permit for the first phase of the project, which was filed after preliminary
plat and site plan reviews, indicates that the owner of the property was Lake
Hancock Villas, Inc., of Cape Canaveral.
T 27, 64-66; AE 1.
4. On December 16, 1986, the consulting engineers for the City
provided review comments to Mr. Gunn, as the Building Official, regarding the
Gizella Townhomes site plan. The letter
in which the comments were made referenced, among other matters, a sanitary
sewer service main along the south property line of the project, the elevation
of which apparently was improper in the site plan. RE 1.
5. On March 6, 1987, John L. Murphy, Jr., a contractor, filed an
application for a Building Permit to construct four (4) townhomes as the first
phase of the project known as Gizella Townhomes in the City of Cape
Canaveral. S (e)3; AE 1. In addition to being a licensed contractor,
Mr. Murphy was a member of the City Council of the City of Cape Canaveral in
1987. S (e)4.
6. The first phase of the project apparently did not affect the
sanitary sewer main referred to by the City's consulting engineers, which was
along the south property line, as the sewer line for the first phase was along
the west property line of the project.
T 63-64.
7. At the time Mr. Murphy initially submitted his plans with the
building permit application, Mr. Gunn informed him that he needed to have the
plans bear the seal and signature of a licensed Florida registered professional
architect or engineer. Mr. Murphy
objected to being required to have an architect or engineer's signature on the
plans because of the expense, but subsequently filed building plans with the
engineering seal and signature of Mr. Albert Price affixed. T 29-30.
8. After the building plans were resubmitted, Mr. Gunn reviewed the
plans and prepared a written set of plan review comments which were provided to
Mr. Murphy. The comments identified
some "discrepancies" in the plans.
Mr. Murphy then met with Mr Gunn at the City Building Department to
discuss these problems with the plans, which needed to be addressed prior to
the issuance of a building permit. T
30-32.
9. Mr. Gunn recalled two of the "discrepancies" which
needed correction prior to the issuance of the building permit. T 31-32.
Mr. Gunn testified that one discrepancy was that the foundation design
did not meet the minimum construction requirements required by the Standard
Building Code. The second discrepancy
was a lack of adherence to the conditional requirements imposed by the Planning
and Zoning Board relative to an easement and sewer line arrangement that was
shown for the project, running along the west side of the project. T 32.
10. Regarding the sewer line arrangement, Mr.
Gunn and Mr. Murphy discussed two ways to bring it into compliance with the
Planning and Zoning Board's requirements.
The first way would have been to relocate the City's easement. The second way would have been to relocate
the sewer line so that it would be within the easement. T 32.
11. According to Mr. Gunn, at the conclusion of
this meeting Mr. Murphy was upset and made the statement that he was going to
build the townhomes without a building permit.
T 32-33. This statement by Mr.
Murphy was overheard by Mrs. Josephine Hughes, the secretary for the Building
Department, and by Mrs. Evelyn Hutcherson, the City's Code Enforcement Officer. T 217 and 258. These employees characterized the discussion between Mr. Gunn and
Mr. Murphy as a "loud conversation" and as a "heated
discussion." T 218-19, 258-59.
12. After that meeting between Mr. Gunn and Mr.
Murphy, Mr. Gunn met with the Respondent to explain the issues pertaining to
the Gizella Townhomes project. T 35. Mr. Gunn testified that he knew that Mr.
Murphy was upset and he went to inform the Respondent, as City Manager, so the
Respondent would know Mr. Gunn's side of the story. T 35. Mr. Gunn stated
that he did this so that if Mr. Murphy were to go to the Respondent, the
Respondent would have an understanding of the background of the situation. T 36.
13. Mr. Gunn showed the Respondent what the
issues were and explained the sewer line problem. T 36. The Respondent
acknowledged the concerns and put Mr. Gunn at ease, explaining that Mr. Murphy
could be a hothead and a loudmouth. T
36, 112. The Respondent did not testify
about this meeting with Mr. Gunn; however, he did testify that he had told Mr.
Gunn that Mr. Murphy could be a hothead at a later meeting with Mr. Gunn on
March 26, 1989. T 295.
14. Mr. Murphy later submitted revised plans
which again were reviewed by Mr. Gunn.
T 36. However, the sewer line
was drawn at the wrong elevation and, if built according to the plans, would
have been located over and above the main driveway. T 36.
15. After reviewing the revised plans, Mr. Gunn
decided to file a complaint with the Department of Professional Regulation
against the engineer who had signed the plans, Mr. Albert Price. T 37 and 236-37. Mr. Gunn had filed several complaints in the past against
professionals licensed by the Department.
T 37-38. Mr. Gunn prepared a
hand-written complaint on March 25, 1987, which was typed by Mrs. Hughes on the
Department's complaint form. T 45, 120,
232-33. Mr. Gunn signed the typewritten
complaint on March 26th, and had it mailed to the Department that day along
with the set of plans. T 103, 125. Attached to the complaint was a note from
Mr. Gunn asking that the Department return the plans after the investigation
was completed, as they were the only set he had. RE 3. The complaint
alleged that the submittal of such improperly prepared plans showed negligence
and incompetency. RE 3.
16. At or around the time Mr. Gunn reviewed the
revised building plans and before he signed the building permit on March 26,
1987, he explained the elevation problem to Mrs. Hutcherson, the Code
Enforcement Officer. T 262. At some time prior to the issuance of the
building permit on March 26th, Mr. Gunn stated to Mrs. Hutcherson that he
thought someone was out to get him through the submission of the improperly
drawn plans. T 263, 267.
17. On March 26, 1987, Mr. Gunn was called to
the Respondent's office regarding the Gizella Townhomes project. T 39.
The Respondent testified that he had met with Mr. Murphy and he called
Mr. Gunn into his office to discuss his conduct with citizens and his losing
his temper. T 291-92. The Respondent denied ever ordering Mr. Gunn
to issue a building permit for the Gizella Townhomes project. T 291.
The Respondent testified that he told Mr. Gunn that if he was having
trouble dealing with Mr. Murphy, he should contact Mr. Price, the engineer, to
work out the problems. T 292.
18. Mr. Gunn testified that during the meeting
the Respondent made the decision to issue the building permit for Gizella
Townhomes notwithstanding the outstanding discrepancies and that he was told by
the Respondent that if he proceeded any further with the objections the
Respondent would consider that insubordination. T 39 and 40.
19. Following this meeting with the Respondent,
Mr. Gunn had his secretary prepare the building permit for the Gizella
Townhomes which he, as the Building Official, then signed. T 40-41; AE 2. Mr. Gunn did not attempt to contact Mr. Price and made no further
attempt to contact Mr. Murphy. T
113. Mr. Gunn's signature on the
building permit authorized the contractor to start work on the project. AE 2.
20. When Mr. Gunn returned to the Building Department,
he told his secretary, Mrs. Hughes, that he was issuing the permit under
protest. T 223. Mr. Gunn further stated to Mrs. Hughes that
"Mr. Nicholas told him [Mr. Gunn] to give the permit to Mr. Murphy, to
issue the permit." T 224.
21. Mrs. Hutcherson, the Code Enforcement
Officer, heard Mr. Gunn say on the day the permit was issued that he was
issuing the permit under duress. T 261.
22. The greater weight of the evidence
established that the Respondent instructed or ordered Mr. Gunn, the Building
Official, to issue the building permit or he would be considered to be
insubordinate. Mr. Gunn's testimony was
credible and consistent with the factual circumstances existing at the time of
the events in question. His filing of
the Department of Professional Regulation complaint indicates both that Mr.
Gunn believed that the plans were improperly drawn and that he would have had
no reason to approve the building permit without having been ordered to do so.
23. At the time the building permit was issued
Mr. Murphy was not entitled to receive that permit, in the opinion of Mr. Gunn,
who was the City Building Official having the authority to issue such a
permit. T 39. Mr. Gunn is certified as a building official by the Department of
Community Affairs. T 52-53. A builder who disagrees with the decision of
the Building Official in Cape Canaveral has the right to appeal the decision to
the City's Construction Board of Adjustments and Appeals. T 35.
The Respondent had no authority to order the Building Official to issue
a building permit. T 11, 35.
24. Mr. Murphy received and signed the building
permit as the contractor for the Gizella Townhomes project. AE 2.
25. No evidence was presented which would
contradict the testimony of the Building Official that the project was not in
compliance with the City's building regulations. No evidence was presented which would show that the plans
submitted by Mr. Murphy were sufficient to entitle him to receive the building
permit which was issued to him on March 26, 1987.
26. The plans which were submitted to the
Department of Professional Regulation were returned to the City by the
Department at the time the City requested that the complaint not be
investigated. T 182-83. Apparently the plans were not located by the
parties, so they were not introduced into evidence at the hearing.
27. The receipt of a license or permit one is
not entitled to is, in itself, a special privilege, benefit, or exemption. Therefore, by receiving the building permit for
the Gizella Townhomes project on March 26, 1987, Mr. Murphy received a special
privilege, benefit, or exemption.
28. The Respondent intended to secure this
privilege, benefit, or exemption for Mr. Murphy, a member of the City
Council. The Respondent called Mr. Gunn
in after meeting with Mr. Murphy.
Although he was advised by the Building Official that the plans were not
sufficient under the building code to entitle Mr. Murphy to the issuance of the
building permit, the Respondent ordered the issuance of the permit.
29. The Respondent used his official position to
order the issuance of the building permit.
Acting as City Manager, he called Mr. Gunn to his office and indicated
that if Mr. Gunn persisted in his objections he would be considered to be
insubordinate.
30. The Respondent acted with wrongfull intent,
as his actions were intentional and beyond the scope of his authority as City
Manager. The Respondent acted for the
purpose of obtaining a benefit for Mr. Murphy through action which was
inconsistent with the proper performance of his public duties; the Respondent
had no authority to order the issuance of a building permit and there is no
evidence that the Respondent had any expertise in the construction industry
from which he could have concluded that it was appropriate to issue the permit.
Section 112.313(6), Florida
Statutes, provides as follows:
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
provision, the term "corruptly" is defined 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. [Section 112.312(7), Florida Statutes.]
Based on the foregoing
findings of fact, the Hearing Officer recommends that the Commission on Ethics
make the following conclusions of law:
1. The Respondent, Leo C. Nicholas, in his capacity as City Manager
for the City of Cape Canaveral, is subject to the provisions of the Code of Ethics
for Public Officers and Employees contained in Part III of Chapter 112, Florida
Statutes, and is subject to the jurisdiction of the State of Florida Commission
on Ethics.
2. 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 a public officer or employee;
b. The Respondent used or attempted to use his official position or
any property or resource which may be within his trust, or performed his
official duties;
c. Such action on the part of the Respondent was for the purpose of
securing a special privilege, benefit, or exemption for himself or others; and
d. Such action on the part of the Respondent was done
"corruptly," that is:
(1) Done with a wrongful intent; and
(2) For the purpose of obtaining, or
compensating or receiving compensation for any benefit resulting from any act
or omission of a public servant which is inconsistent with the proper performance
of public duties.
3. The weight of the evidence indicates that the Advocate has
sustained the required burden of proof with respect to each of the above
elements. As found in this order, the Respondent
is a public officer who used his official position to secure a special
privilege, benefit, or exemption for Mr. Murphy by ordering or directing the
Building Official to issue a building permit for the Gizella Townhomes
project. Finally, the Respondent acted
"corruptly" within the meaning of the statute at issue.
4. Therefore, the Respondent has violated Section 112.313(6),
Florida Statutes.
Based upon 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, Leo C. Nicholas, has violated Section 112.313(6),
Florida Statutes, and recommending that the Respondent be publicly censured and
reprimanded and that a civil penalty be imposed upon him in the amount of one
thousand five hundred dollars ($1,500.00).
ENTERED and respectfully
submitted this _____ day of January, 1989.
______________________________
Karen M. Margulies
Hearing Officer and Member
Commission on Ethics
Copies furnished to:
Mr. R. Frazier Solsberry,
Attorney for Respondent
Mr. Craig B. Willis,
Commission Advocate
Ms. Helen S. Filkins,
Complainant
APPENDIX
The following are rulings on the proposed findings of fact
submitted by the parties:
Advocate's Proposed Findings
of Fact
1-8. Accepted.
9. Accepted, except for the last sentence,
which is not supported by the evidence.
10. Accepted.
11. Accepted, except that there is insufficient
evidence to conclude that the sewer line was drawn within the easement.
12. Accepted.
13. Accepted, except as to the finding
regarding Mr. Eckley, whose testimony was contradictory about when he learned
of an elevation problem. T 202, 210-12.
14-21.Accepted.
Respondent's Proposed
Findings of Fact
1-2. Accepted.
3. Rejected; the first part is irrelevant, and
the second part is not based on record evidence.
4. Rejected.
Although there is evidence that a preliminary plat and a site plan were
submitted for the Gizella Townhomes project, there was no evidence that Mr.
Murphy filed them or that he had any involvement in the project aside from
being the general contractor.
5-7. Accepted.
8. Accepted to the extent reflected in
paragraphs 5 and 6.
9-11. Accepted.
12. Accepted to the extent reflected in
paragraph 11.
13. Accepted.
14. Accepted to the extent reflected in
paragraph 13; otherwise, rejected as unsupported by the evidence.
15. Accepted.
16. Accepted to the extent that Gunn met with
the Respondent after preparing the DPR complaint; otherwise, rejected based on
T 130-131 and the evidence supporting the findings in paragraph 22.
17. Accepted, as noted in paragraph 19.
18. Accepted.
19. Rejected as not based on the greater weight
of the evidence, except to the extent reflected in paragraph 19.
20. Rejected as irrelevant, except to the
extent reflected in paragraph 19.
21. Accepted.
22. Accepted to the extent reflected in
paragraphs 20 and 21; otherwise, rejected as not supported by the testimony.
23. Accepted to the extent reflected in
paragraph 16; otherwise, rejected as not supported by competent evidence.
24. Rejected as not supported by the testimony,
except to the extent found in paragraph 15.
25. Rejected; Mr. Eckley's testimony was
contradictory about when he learned of an elevation problem. T 202, 210-12.
26-28.Rejected as being
irrelevant.
29. Rejected as not supported by the greater
weight of the evidence.
30. Rejected as being irrelevant.
31. Rejected as not supported by the greater
weight of the evidence.
32. Rejected as being immaterial.
33. Rejected as not supported by the greater
weight of credible evidence.
34. Rejected as irrelevant.