FINDINGS OF FACT

From the evidence presented, the undersigned Hearing Officer finds as follows:

1. The Respondent, James Resnick, was appointed by the Governor to a two-year term as a Commissioner of the State Athletic Commission when that Commission was created in 1984. At the expiration of his term in 1986, he was reappointed by the Governor to serve a four-year term on the Commission. Resnick, 4-5.

2. The State Athletic Commission has been created under the Department of Business Regulation by Section 548.003, Florida Statutes. As provided in Chapter 548, Florida Statutes, the Commission: has exclusive jurisdiction over professional boxing matches held in Florida involving a professional; licenses boxing promoters, boxers, managers, referees, judges, and others; is responsible for issuing permits for each program of matches; may suspend or revoke licenses and permits; and adopts various rules as specified in that Chapter.

3. The State Athletic Commission was created by the Legislature in 1984 to regulate boxing matches statewide. Prior to the creation of this statewide Commission, boxing was regulated by a plethora of local boxing commissions. Traditionally, fight promoters would give commission members a small number of complimentary tickets in order to allow members of the commissioner's family and friends to accompany the commissioner to the fight. This tradition was carried over to the State Athletic Commission after its creation. Stip., para. 7.

4. At the December, 1987 State Athletic Commission meeting, the subject of complimentary tickets was discussed. The General Counsel for the Department of Business Regulation, Joe Sole, instructed members of the Commission that it was permissible for each Commissioner to accept up to two tickets per match. Stip., para. 8.

5. Harry Brennan, who has been employed by the Commission as its Administrative Assistant and Assistant Executive Director since late 1985, testified that shortly after he was employed by the Commission the decision was made that referees, judges, timers, and inspectors would not automatically be provided free tickets; if these persons wanted free tickets, they would have to contact the promoter, who was "under no obligation" to provide them. Brennan, 8-10; Brennan, Exh. 1 (memorandum dated November 15, 1985). At that time, it also was decided to set up a policy of giving two free tickets to the Commissioners, the Deputy Commissioners, and the ringside doctors, because these people were unpaid, unlike the referees, judges, timers, and inspectors. Brennan, 9, 11-14. A memorandum was prepared under Brennan's direction listing the licensed officials for the Commission and directing that they be admitted without charge. The memorandum, which was updated periodically, includes the names of Commissioners, Deputy Commissioners, and ringside physicians and indicates that each of these persons are entitled to two guests. See Exh. 2, Brennan deposition, for a current version of the updated memorandum. Brennan, 11-14.

6. The practice of permitting two complimentary tickets was corroborated by the testimony of Morris Crady (a Commissioner from about 1985 to 1989), Alvin Goodman (a Deputy Commissioner since 1984), Luis Decubas (a manager), and Stuart Graver (a Deputy Commissioner from 1984 to 1989). Crady, 7-8; Goodman, 8-9, 19-20; Decubas, 9-10; and Graver, 7-9.

7. The value of these complimentary tickets generally ranged from $15 to $50 each. No Commissioner, Deputy Commissioner, or member of the Commission staff has ever reported the receipt of those tickets as gifts pursuant to Section 112.3145, Florida Statutes. Stip., para. 9.

8. Commissioners who attended a boxing match did not need a ticket to gain admittance to a fight, because their credentials as State Athletic Commissioners authorized their entry. Stip., para. 10.

9. The Advocate and the Respondent have stipulated that "[t]here is no evidence that the Respondent received for his own use any more complimentary tickets than was received by any other Commissioner, Deputy Commissioner, or Commission staff member." Stip., para. 11. Although there is evidence that raises a doubt as to whether the Respondent received for his own use more than two complimentary tickets to some matches, there is not sufficient evidence in the record from which to conclude by a preponderance of the evidence that the Respondent in fact did receive more than two complimentary tickets for his own use for any particular match. For example, Phil Alessi, a Tampa boxing promoter, stated that he and his organization had given the Respondent tickets, but was unable to provide details about when or how many tickets. Alessi, 7, 10. In addition, Commissioner Crady testified that before a fight he overheard a promoter ask the Respondent how many tickets he would need, and that the Respondent replied, "100, 150." However, there was no evidence that the Respondent actually received more than two tickets for that event or, if he did, whether the tickets were for the Respondent's use. Crady, 20-24, 47-49.

10. There were some occasions when the Respondent was involved in the transfer of more than two complimentary tickets to a boxing match, but for those occasions that were proven by the record, the evidence is unrebutted that those tickets were designated for other Commissioners, Deputy Commissioners, staff members, boxing officials, officials of the Department of Business Regulation, or guest celebrities that were specifically requested by the promoters. Stip., para. 12; Duran, Exh.'s 1 and 3; Decubas, 5-7, 14-15; Brennan, 22-23; Resnick, 28-30, 31-33.

11. Although there was widespread agreement that the Respondent and others received two complimentary tickets to various events, there was no instance where it was shown exactly what tickets the Respondent received, when he received them, from whom, and what they were worth.

12. No evidence was presented that would have related an occasion when the Respondent was provided complimentary tickets to a specific matter involving the promoter in which the Respondent would have been expected to participate in his official capacity, such as a pending or potential disciplinary proceeding against a promoter's license.

APPLICABLE STATUTES

Section 112.313(6), Florida Statutes, provides:

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 statute, the term "corruptly" is defined by Section 112.312(7), Florida Statutes, 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 112.313(4), Florida Statutes, provides:

UNAUTHORIZED COMPENSATION.--No public officer or employee of an agency or his spouse or minor child shall, at any time, accept any compensation, payment, or thing of value when such public officer or employee knows, or, with the exercise of reasonable care, should know, that it was given to influence a vote or other action in which the officer or employee was expected to participate in his official capacity.

For purposes of the financial disclosure law, the following provisions of Section 112.3145, Florida Statutes, are relevant here. Section 112.3145(2)(b) requires each "state officer" to file a statement of financial interests no later than July 1 of each year. Section 112.3145(1)(c) defines the term "state officer" to include an appointed member of each commission having statewide jurisdiction, excluding a member of an advisory body. Section 112.3145(3)(d) requires the statement of financial interests to include a "list of all persons, business entities, or other organizations, and the address and a description of the principal business activity of each, from whom he received a gift or gifts from one source, the total of which exceeds $100 in value during the disclosure period."

CONCLUSIONS OF LAW

Based on the foregoing findings of fact, the undersigned Hearing Officer recommends that the Commission on Ethics make the following conclusions of law:

1. The Respondent, James Resnick, in his capacity as a member of the State Athletic Commission, is a public officer 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. Section 112.313(4), Florida Statutes, prohibited the Respondent from accepting any thing of value if he knew or, with the exercise of reasonable care, should have known that it was given to influence a vote or other action in which he was expected to participate in his official capacity. Regardless of what might be considered to be the best public policy in this State, it is clear from the language used by the Legislature that this statute does not constitute an absolute prohibition against an official of a regulatory agency accepting any gift or thing of value whatsoever from an entity regulated by his agency. [Parenthetically, it should be noted that the present gift law (Chapter 90-502, Laws of Florida) prohibits an official from accepting a gift from a regulated entity only if the gift is worth over $100, and then only if the entity has retained a lobbyist to represent its interests before the agency within the prior 12 months.]

3. As found above, no evidence was presented that would have related an occasion when the Respondent was provided complimentary tickets to a specific matter involving the promoter in which the Respondent would have been expected to participate in his official capacity, such as a pending or potential disciplinary proceeding against a promoter's license. In the absence of some nexus of this nature, it cannot be concluded that the Respondent's conduct violated Section 112.313(4), Florida Statutes, regardless of whether his agency had ongoing regulatory responsibilities over the business of the promoters from whom he accepted complimentary tickets. Accordingly, the Respondent did not violate Section 112.313(4), Florida Statutes.

4. As a member of the State Athletic Commission, the Respondent was a "state officer" subject to the requirement of filing a statement of financial interests annually, because he was an appointed member of a commission having statewide jurisdiction that was not an advisory body. On these statements the Respondent was required to list each person, business entity, or other organization from whom he received a gift or gifts, the total of which exceeded $100 in value during the prior calendar year.

5. As found above, although there was widespread agreement that the Respondent and others received two complimentary tickets to various events, there was no instance where it was shown exactly what tickets the Respondent received, when he received them, from whom, and what they were worth. On the basis of this record, therefore, it has not been proven that the Respondent received tickets exceeding $100 in value during any particular year from any one particular promoter. Accordingly, it is concluded that the Respondent did not violate Section 112.3145, Florida Statutes, by failing to disclose the receipt of free tickets to boxing matches.

6. 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 either a public officer or a public employee;

b. The Respondent used or attempted to use his official position or property or resources within his trust, or performed his official duties.

c. The Respondent's actions were done with an intent to secure a special privilege, benefit, or exemption for himself or others; and

d. The Respondent's actions were done "corruptly," that is,

(1) done with a wrongful intent, and

(2) done for the purpose of benefiting from some act or omission which was inconsistent with the proper performance of public duties.

7. The evidence clearly establishes that the Respondent accepted some complimentary tickets for his personal use from boxing promoters who were regulated by the Athletic Commission. However, the record does not establish by a preponderance of the evidence that the Respondent accepted for his personal use more tickets than the Athletic Commission's practice or "policy" allowed for any particular event.

8. The Commission's "policy" regarding two complimentary tickets per event is quite disturbing. Where the applicable law does not absolutely prohibit an official from accepting gifts of relatively minor value from regulated entities, any agency would be justified in establishing policies limiting the number or amount of such gifts its members may accept from regulated entities. If that were all that was involved here and it were clear that any complimentary tickets received by the Respondent were simply gifts offered at the initiative of the promoters, it could not be said that the Respondent used or attempted to use his official position in order to obtain the tickets, any more than it could be said that an official "used his official position" to benefit himself by accepting a dinner offered and paid for by a regulated entity.

9. Here, however, the agency's focus shifted from a policy on what could be accepted, when offered, to a policy on what was expected to be provided. In effect, through official action the agency came to demand certain privileges from regulated entities for its members and officials, and the Respondent's actions, insofar as they were proven, became a matter of claiming that to which he was "entitled" under agency policy. Therefore, the Respondent's acceptance of complimentary tickets entailed the use of his official position to obtain the tickets.

10. Clearly, complimentary tickets constituted a "special privilege, benefit, or exemption" in the sense that members of the general public were required to pay for their tickets to attend boxing matches. If the Athletic Commission had the authority to establish a policy requiring promoters to provide a certain number of complimentary tickets to boxing officials, then it might be argued that the Respondent did not receive a special privilege, benefit, or exemption, because he would not have received more than he was entitled to under lawful regulations. However, the undersigned Hearing Officer is not aware of any provision of law, whether in Chapter 548, Florida Statutes, or elsewhere, that would authorize the Athletic Commission to set a policy requiring promoters to provide complimentary tickets to its members or others. Therefore, it is concluded that the Respondent used his official position to secure special privileges, benefits, or exemptions for himself in the form of complimentary tickets to boxing matches.

11. Nevertheless, such actions are not violative of Section 112.313(6) unless they are taken "corruptly," which requires a determination that the Respondent acted with "wrongful intent." Again, the record does not establish by a preponderance that the Respondent accepted for his personal use more tickets than the Athletic Commission's practice or "policy" allowed for any particular event. As these guidelines apparently were generally accepted, it cannot be concluded that the Respondent acted with wrongful intent, in the absence of proof that his conduct went beyond those boundaries.

5. Therefore, it is concluded that the Respondent did not violate Section 112.313(6), Florida Statutes, by soliciting free tickets to boxing matches from boxing promoters regulated by the Athletic Commission.

RECOMMENDED FINAL ACTION

Based upon the foregoing Findings of Fact and Conclusions of Law, the undersigned Hearing Officer recommends that the Commission on Ethics enter a public report which finds that the Respondent, James Resnick, did not violate Sections 112.313(4), 112.313(6), and 112.3145, Florida Statutes, as alleged in this complaint, and dismiss the complaint.

One additional aspect of this case deserves mention. In the view of this Hearing Officer, any communication from a governmental agency to an entity regulated by the agency that expressly or impliedly solicits a gift of personal, private benefit to members of the agency is extremely poor policy, at the very least. Although a policy within the agency limiting the acceptance of gifts from regulated entities clearly would be a reasonable response by the agency, that policy never should be communicated to the regulated entities in a manner that expressly or impliedly constitutes a solicitation or demand for gifts. In other words, it is one thing to require promoters to admit those persons with regulatory responsibilities to an event free of charge, but it is quite another to routinely allow them to bring two of their friends or family members. Therefore, the Hearing Officer also recommends that the Commission on Ethics recommend to the State Athletic Commission that it refrain from any action that would imply to promoters that any official or employee associated with the Commission should be provided with any complimentary tickets.

ENTERED and respectfully submitted this ____ day of March, 1991.

__________________________

Scott G. Williams

Hearing Officer and Chairman

Commission on Ethics

Copies furnished to:

Mr. William M. Furlow, Attorney for Respondent

Mr. Craig B. Willis, Commission Advocate

INTRODUCTION

FINDINGS OF FACT

APPLICABLE STATUTES

CONCLUSIONS OF LAW

RECOMMENDED FINAL ACTION