The Respondent's second exception concerns Issue H, with respect to which the Hearing Officer recommends that the Commission find that the Respondent violated Section 112.313(7)(a), Florida Statutes, by his employment to provide services to Coral Springs Cable Television, which held a cable television franchise granted by the City. The Respondent argues that the Hearing Officer's conclusions and findings on this issue also are erroneous as a matter of fact and law. This exception similarly is rejected, as the Hearing Officer's findings of fact are supported by competent, substantial evidence, and as the Commission agrees with the Hearing Officer's conclusions of law on this issue.

The Respondent's third exception concerns the penalties recommended by the Hearing Officer. This exception is rejected, as the Commission concurs in the penalties recommended by the Hearing Officer.

Rulings on Advocate's Exceptions

The Advocate's first six exceptions concern Issue A, with respect to which the Hearing Officer recommends that the Commission find that the Respondent did not violate Section 112.313(6), Florida Statutes, by attempting to influence the City Manager to pursue the purchase of University Utilities, a private utility company whose franchise area encompassed areas of Broward County contiguous to the City. In his first exception, the Advocate argues that the Hearing Officer erred by applying an improper standard regarding the burden of proof by circumstantial evidence. This exception is rejected, as the findings of fact were based upon competent, substantial evidence and as the proceedings complied with the essential requirements of law. In paragraph 57 of the findings of fact, the Hearing Officer states that he did not base his recommendation simply on the amount and nature of the circumstantial evidence presented.

The Advocate's second exception argues that the Hearing Officer erred by refusing to permit the Advocate to examine the City Attorney as an expert witness. This exception is denied, as it appears that the Hearing Officer did not abuse his discretion in this regard.

The Advocate's third exception argues that the Hearing Officer erred as a matter of law by his interruptions and directions during the testimony of the City Attorney. This exception is denied, as no abuse of discretion is demonstrated in the record.

The Advocate's fourth exception argues that the Hearing Officer erred as a matter of law by expanding the Commission's probable cause finding. This exception is denied, on the ground that the proceeding complied with the essential requirements of law.

The Advocate's fifth exception argues that the Hearing Officer erred as a matter of law by basing his recommendation regarding Issue A upon the testimony of the City Public Works Director and the City Finance Director that the purchase of the company was in the public interest. This exception is rejected, as the Hearing Officer's findings were based upon competent, substantial evidence.

The Advocate's sixth exception argues that the Hearing Officer erred as a matter of law by excluding from consideration as substantive evidence the testimony of the Mayor and of the Assistant City Manager that the City Manager had admitted to them that the Respondent had pressured him. This exception is rejected, on the ground that the Hearing Officer's findings were based upon competent, substantial evidence.

The Advocate's seventh exception concerns Issue B (whether the Respondent violated Section 112.313(6), Florida Statutes, by his efforts to influence the City Manager and the Assistant City Attorney to recommend approval of sign variances for the "Royal Lands" development). The Advocate argues that the Hearing Officer's conclusions of law regarding this issue are erroneous with respect to the Respondent's actions toward the Assistant City Attorney and that, given the Hearing Officer's findings of fact, the Respondent violated Section 112.313(6), Florida Statutes, by his effort to influence the Assistant City Attorney to recommend approval of a sign variance for the "Royal Lands" development. For the reasons explained below in the Conclusions of Law section of this order, the Commission grants the Advocate's exception number seven and rejects the Hearing Officer's conclusions of law set out in paragraphs 83 and 86 of the Conclusions of Law in the Recommended Public Report.

The Advocate's eighth exception concerns Issue C (whether the Respondent violated Section 112.313(6), Florida Statutes, by his efforts to dissuade an Assistant City Attorney from taking actions relative to a developer's annexation agreement). The Advocate argues that the Hearing Officer's conclusions of law regarding this issue are erroneous and that, given the Hearing Officer's findings of fact, the Respondent violated Section 112.313(6), Florida Statutes, by his effort to dissuade the Assistant City Attorney from taking actions relative to a developer's annexation agreement. For the reasons explained below in the Conclusions of Law section of this order, the Commission grants the Advocate's exception number eight and rejects the Hearing Officer's conclusions of law set out in paragraphs 97 - 100 of the Conclusions of Law in the Recommended Public Report.

The Advocate's ninth exception concerns Issue H (whether the Respondent violated Section 112.313(7)(a), Florida Statutes, regarding his employment with Coral Springs Cable Television). This exception is denied, on the ground that there was no departure from the essential requirements of law.

The Advocate's tenth exception was withdrawn by the Advocate at the final hearing before the Commission.

The Advocate's eleventh exception concerns the penalties recommended by the Hearing Officer for the violations of Section 112.313(7)(a), Florida Statutes, found with respect to Issues F and H. This exception is rejected, as the Commission concurs in the penalties recommended by the Hearing Officer.

Findings of Fact

The findings of fact set forth in the Recommended Public Report are approved, adopted, and incorporated herein by reference.

Conclusions of Law

1. The Conclusions of Law set forth in the Recommended Public Report with respect to Issues A, D, E, F, G, and H (paragraphs 48 - 66, 106 - 115, 119 - 124, 134 - 155, 178 - 184, and 205 - 207) are approved, adopted, and incorporated herein by reference.

2. The Hearing Officer's Conclusions of Law regarding Issue B in paragraphs 76 - 82 and 84 - 85 of the Recommended Public Report are approved, adopted, and incorporated herein by reference. As Advocate's exception number seven is granted, the Hearing Officer's Conclusions of Law regarding Issue B in paragraphs 83 and 86 are hereby rejected, for the following reasons.

The Hearing Officer concludes in paragraph 83 that the Respondent did not act "corruptly," simply because the Respondent believed that Ms. Moore's actions were incorrect and because the criticism of a city attorney, even if in harsh tones of voice, was not inconsistent with the proper performance of his public duties. The Commission disagrees with this legal conclusion. The fact that the Respondent was acting under the erroneous belief that the Assistant City Attorney's actions were improper, by itself, does not mandate the conclusion that the Respondent did not act with "wrongful intent." As the Advocate points out in his exception, the Respondent's criticisms related to the development of property with which he had private involvement, he was attempting to direct how a member of the City's staff should perform her public responsibilities, and he lacked the authority as an individual Commission member to tell a member of the City Attorney's Office how to perform her job. These factors indicate that the Respondent acted with wrongful intent and in a manner that was inconsistent with the proper performance of his public duties. Therefore, accepting the Hearing Officer's findings of fact that bear on Issue B and given the totality of the evidence in the record, the Commission substitutes the following conclusions of law for the rejected conclusions:

83. With respect to the Respondent's actions toward Ms. Moore, the Respondent used or attempted to use his official position to benefit the developers of Royal Eagle Plaza through action that was taken "corruptly," that is, with wrongful intent and for the purpose of obtaining a benefit for the developers through action that was inconsistent with the proper performance of his public duties.

86. Accordingly, the Respondent violated Section 112.313(6), Florida Statutes, by his efforts to influence the Assistant City Attorney to recommend approval of a sign variance for the "Royal Lands" development. However, the Respondent did not violate Section 112.313(6), Florida Statutes, with respect to the allegation that the Respondent attempted to influence the City Manager regarding the sign variance.

3. The Hearing Officer's Conclusions of Law regarding Issue C in paragraphs 94 - 96 of the Recommended Public Report are approved, adopted, and incorporated herein by reference. As Advocate's exception number eight is granted, the Hearing Officer's Conclusions of Law regarding Issue C in paragraphs 97 - 100 are hereby rejected, for the following reasons.

The Hearing Officer concludes in paragraph 98 that the Respondent did not act with "wrongful intent," because the Respondent believed, and had reason to believe, that he was correct. The Hearing Officer concludes in paragraph 99 that, even if the Respondent was not correct, there was no evidence that his communication of his disagreement to Ms. Moore was an act inconsistent with the proper performance of his public duties. The Commission disagrees with these legal conclusions. The fact that the Respondent believed that he was correct, by itself, does not mandate the conclusion that the Respondent did not act with "wrongful intent." Here, again, the Respondent's action related to the development of property with which he had private involvement, he was attempting to direct the position of a member of the City's staff, and he lacked the authority as an individual Commission member to tell a member of the City Attorney's Office how to perform her job. These factors indicate that the Respondent acted with wrongful intent and in a manner that was inconsistent with the proper performance of his public duties. Therefore, accepting the Hearing Officer's findings of fact that bear on Issue C and given the totality of the evidence in the record, the Commission substitutes the following conclusions of law for the rejected conclusions:

97. Here, there was a disagreement between the Respondent and the City Attorney's office regarding their actions. He believed that their action was an improper interference with the City Commission's policy making role. He further believed that their interpretation of Chapter 163 was erroneous. However, his actions regarding Ms. Moore constitute a violation of Section 112.313(6), Florida Statutes.

98. The fact that that the Respondent believed, and had reason to believe, that he was correct does not necessitate the conclusion that he did not act with "wrongful intent." The record contains ample evidence that the Respondent's communication with Ms. Moore was with "wrongful intent" and was an act that was inconsistent with the proper performance of his public duties. The Respondent's action related to the development of property with which he had private involvement, he was attempting to direct the position of a member of the City's staff, and he lacked the authority as an individual Commission member to tell a member of the City Attorney's Office how to perform her job.

99. With respect to the Respondent's actions toward Ms. Moore, the Respondent used or attempted to use his official position to benefit the Coral Springs Joint Venture through action that was taken "corruptly," that is, with wrongful intent and for the purpose of obtaining a benefit for the developers through action that was inconsistent with the proper performance of his public duties.

100. Accordingly, the Respondent violated Section 112.313(6), Florida Statutes, by his efforts to dissuade the Assistant City Attorney from taking actions relative to the developer's annexation agreement.

Recommended Penalty

The Hearing Officer has recommended that the Commission recommend a civil penalty in the amount of $1,000.00 per violation for each violation of Section 112.313(7)(a), Florida Statutes (Issues F and H), as well as a civil penalty of $200.00 plus a restitution penalty of $50.00 for the violation of Section 112.313(6), Florida Statutes, found with respect to Issue D. The Commission concurs in these recommendations.

The Commission considers the violations of Section 112.313(6), Florida Statutes, found in Issues B and C, to be serious violations of the Code of Ethics for Public Officers and Employees. Therefore, the Commission recommends that the Respondent be reprimanded and assessed a civil penalty in the amount of $5,000.00 per violation for each of these violations.

Having found that the Respondent, James K. Gordon, as a member of the Coral Springs City Commission, violated Sections 112.313(6) and 112.313(7), Florida Statutes, as described herein, 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 reprimanded by the Governor, that a civil penalty be imposed upon him in the amount of $12,200.00, and that he be ordered to pay a restitution penalty in the amount of $50.00 to the State of Florida.

ORDERED by the State of Florida Commission on Ethics meeting in public session on November 30, 1990.

_______________________________

Date Rendered

______________________________

Scott G. Williams

Chairman

Commission on Ethics

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, 2107 THE CAPITOL, TALLAHASSEE, FLORIDA 32399-1450; 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.

Copies furnished to:

Mr. Michael W. Moskowitz, Attorney for Respondent

Mr. Craig B. Willis, Commission Advocate

Mr. Paul J. McDonough, Mr. John M. Wynn, and Ms. Jeanne Mills, Complainants

Rulings on Respondent's Exceptions

Rulings on Advocate's Exceptions

Findings of Fact

Conclusions of Law