BEFORE THE

STATE OF FLORIDA

COMMISSION ON ETHICS

 

 

 

In re CHARLES POLK,       )    

                          )

     Respondent.          )                                  Complaint No. 89-80

                          )

                          )

_________________________ )

 

 

 

FINAL ORDER AND PUBLIC REPORT

 

 

This matter came before the Commission on Ethics on the Recommended Order rendered in this matter on December 13, 1991 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 the Respondent violated Section 112.313(7), Florida Statutes.  Respondent filed exceptions.

 

Having reviewed the Recommended Order, the Respondent's exceptions, and the record of the public hearing of this complaint such as it exists (neither party requested that a transcript of the live testimony, which consisted only of the Respondent's testimony, received at the public hearing be made, and the Respondent has elected not to have a transcript made), having considered the arguments of counsel for the Respondent and the Commission's Advocate, and the Respondent having waived his appearance at the public meeting of the Commission where the action embodied in this Final Order and Public Report was taken, the Commission makes the following findings, conclusions, rulings and recommendations:

 

 

Rulings on Respondent's Exceptions

 

 

1.  The Respondent excepts to the Hearing Officer's finding of fact numbered "31."  Since the complete record in this case is not before the Commission on Ethics due to the testimony and proceedings of the hearing before the Hearing Officer not havingbeen reduced to a transcript, the Commission cannot modify or reject a finding of fact of the Hearing Officer.  See Section 120.57(1)(b)10, Florida Statutes.  Moreover, even if the finding were erroneous, it does no harm to the Respondent, because, as the Respondent points out in this exception, Section 112.313(7)(a), Florida Statutes, does not require disclosure of a prohibited contractual relationship; nor is mere disclosure a defense to a violation of the prohibition.  Likewise, a violation of the prohibition is not dependent on a public officer actually taking action which benefits an entity with which he has a prohibited contractual relationship.  Further, the hardship that would have been caused to the Respondent by his severing his prohibited contractual relationship by paying off the mortgage or by refinancing it, and the Respondent's receipt of legal advice from an attorney regarding the contractual relationship are not relevant to the Hearing Officer's factual determination numbered "31" and are not relevant to a determination that the Respondent's situation contained the necessary legal elements of a violation of Section 112.313(7)(a), Florida Statutes.  In addition, intent is not a necessary element of a violation of Section 112.313(7)(a), Florida Statutes, and a violation, "technical" or not, is a violation.  Finally, it does not appear that the Hearing Officer used this finding of fact in making his conclusions of law; the finding is discussed by the Hearing Officer only in his penalty recommendation.

 

Therefore, the Respondent's first exception, which is numbered "2," is rejected.

 

2.  The Respondent excepts to the Hearing Officer's finding of fact numbered "33," arguing that the finding is not supported by any evidence.  The proceedings on which finding of fact "33" was based did not comply with essential requirements of law in that such a finding is irrelevant and immaterial to a determination of whether the Respondent violated Section 112.313(7)(a), Florida Statutes.  All proceedings and determinations of the Hearing Officer in this matter, other than those concerning finding of fact "33," are sound, valid, and in compliance with essential requirements of law.

 

Therefore, the Respondent's exception numbered "3" is accepted and the Hearing Officer's finding of fact numbered "33" is rejected and is not a part of or included in this Final Order and Public Report.

 

3.  The Respondent excepts to the Hearing Officer's conclusion of law numbered "B. 4."  It is apparent, as the Respondent assumes, that the Hearing Officer's intended reference in this conclusion of law was to Section 112.313(7), Florida Statutes, rather than to the Florida Administrative Code.  Thus, the portion of this exception dealing with that scrivener's error is accepted, and the conclusion of law of the Hearing Officer is hereby modified to reflect in this Final Order and Public Report that the violation was under Section 112.313(7), Florida Statutes.

 

The Respondent also argues in this exception that he did not have the type of conflicting employment or contractual relationship that is "contemplated" by Section 112.313(7)(a), Florida Statutes, because "Dr. Polk did not have such a relationship with the developer;" because the attorney for the public college where the Respondent held his public position did not advise the Respondent of a perceived conflict of interest and, therefore, "no one considered the matter to be governed by the conflict statute;" because the Respondent did not play an active role in awarding the business of his public agency to the private entity with which he held the contractual relationship of concern in this matter; and, generally, because the Respondent's situation in this matter is not of the type which Section 112.313(7)(a), Florida Statutes, was intended to address.

 

We believe the reasoning behind this legal conclusion of the Hearing Officer is sound and that the Respondent did violate Section 112.313(7), Florida Statutes, as determined by the Hearing Officer.  Therefore, the portion of the Respondent's exception numbered "4" not dealing with the scrivener's error as discussed above is rejected.

 

Findings of Fact

 

The Findings of Fact set forth in the Recommended Order are approved, adopted, and incorporated herein by reference except as modified above.

 

 

Conclusions of Law

 

1.    The Conclusions of Law set forth in the Recommended Order are approved, adopted, and incorporated herein by reference except as modified above.

 

2.  Accordingly, the Commission on Ethics finds that the Respondent, Charles Polk, as President of Daytona Beach Community College, violated Section 112.313(7)(a), Florida Statutes, as described herein.

 

 

Recommended Penalty

 

Having found that the Respondent violated Section 112.313(7)(a), Florida Statutes, as described in the Recommended Order, pursuant to Sections 112.317(1) and 112.324(7), Florida Statutes, it is the recommendation of the Commission on Ethics that the District Board of Trustees of Daytona Beach Community College publicly censure and reprimand the Respondent for violating Section 112.313(7)(a), Florida Statutes, as determined in this Final Order and Public Report.   

 

ORDERED by the State of Florida Commission on Ethics meeting in public session on Friday, March 6, 1992.

 

 

                               ____________________________

                               Date

 

 

                               _______________________________

                               Dean Bunch

                               Chairman

 

 

 

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. David A. Monaco, Attorney for Respondent

    Ms. Virlindia Doss, Commission Advocate

    Mr. John W. Corris, Complainant

    Division of Administrative Hearings