STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

IN RE: MITCHELL KINZER, )

) CASE NO. 93-0313EC

Respondent. )

___________________________________)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Mary Clark, held a formal hearing in the above-styled case on August 27, 1993, in Miami, Florida.

APPEARANCES

For The Advocate for Virlindia Doss, Esquire

the Commission on Ethics: Department of Legal Affairs

The Capitol, PL-01

Tallahassee, Florida 32399-1050

For Respondent: Neal L. Sandberg, Esquire

1492 South Miami Avenue

Miami, Florida 33130

STATEMENT OF THE ISSUES

On September 18, 1991, the Florida Commission on Ethics (EC) entered its order finding probable cause that Respondent, Mitchell Kinzer, a member of the Surfside Town Commission, violated section 112.313(6), F.S., by improperly using public funds for personal purposes; and that he violated section 112.3135(2)(a), F.S., by participating in his wife's appointment to the Community Center Advisory Board.

The issues for disposition are whether those violations occurred, and if so, what penalty or discipline is appropriate.

PRELIMINARY STATEMENT

On January 21, 1993, the case was forwarded to the Division of Administrative Hearings (DOAH) for conduct of the public hearing ordered by the EC when it found probable cause.

The hearing was scheduled for May 21, 1993, but was continued for good cause at Respondent's request and without objection.

At the hearing the Advocate presented the testimony of Hal Cohen and Mitchell Kinzer. Advocate's exhibits #1-11 were received without objection; exhibit #12 was received over an objection based on relevance.

Respondent also testified in his own behalf and presented the testimony of Stephen Cypen and Regan Kinzer.

The transcript of hearing was not filed; the Advocate submitted a written closing argument; Respondent filed a proposed recommended order. These have both been considered and the findings of fact proposed by Respondent are specifically addressed in the attached Appendix.

FINDINGS OF FACT

1. Respondent, Mitchell Kinzer (Kinzer) has served eight two-year terms on the Surfside Town Commission (Commission); he was mayor for three of those terms, including 1988-90 (term ending in mid-March). He is also an assistant principal in the Dade County public schools and has worked in the Dade County School District for the past thirteen years.

2. Surfside is a tiny incorporated municipality in Dade County, Florida, with a population of slightly over 4,000 and comprised of less than one-half a square mile. It is governed by a five-member commission, including the mayor. The commissioner who receives the most votes in an election is designated the mayor for that two-year term.

3. Commissioners, and the mayor, serve with a nominal one-dollar per year compensation. The mayor's role is largely ceremonial. He or she, as well as the commissioners, represent the city at various social, cultural and civic functions. The commission meets once a month and its committees meet more frequently. Its policy directives are executed by the town manager/finance director who serves at the pleasure of the commission.

Use of Public Funds

4. Prior to 1989, the commissioners were reimbursed for their expenses by submitting a voucher or petty cash slip and receipts. There was an annual limit of $800.00 or $1,000.00, with more, probably $1,500.00, for the mayor. From time to time the town manager would challenge these requests as being unrelated to city business. Hal Cohen, who has been Surfside's town manager/finance director since 1981, rarely argues now. In his view there are too many "grey areas" and he has become tired of the debates. Commissioners and their spouses have routinely been reimbursed for expenses related to their attendance at concerts and other events on behalf of the city.

5. In August 1989, the commission approved a resolution providing a flat monthly rate for the mayor and commissioners. That resolution #1256 took effect October 1, 1989, and provided, in pertinent part:

Section 2. That the Mayor of the Town of

Surfside be permitted to recover monies in

behalf of the Town of Surfside for

representing the Town at governmental and

civic functions in an amount not to exceed

$1,500.00 per year in office, prorated and

paid monthly in advance.

Section 3. That the Members of the Town

Commission each be permitted to recover

monies expended in behalf of the Town of

Surfside for official representation,

registration and expenses while attending

established governmental and civic functions

in an amount not to exceed $1,000.00 per year

in office, prorated and paid monthly in

advance. (Advocate's Exhibit #7)

6. Kinzer understood that the "allowance", as it was called, could be spent on virtually anything, but that any portion that was not used for commission-related duties would have to be reported to the Internal Revenue Service as taxable income. On the advice of his accountant, he kept a running list of his expenditures and submitted the list to Hal Cohen. Other commissioners did not submit such lists.

7. The following items appearing on Kinzer's list are the subject of the Advocate's prosecution in this case:

a. 4/25/90 Plant/Secretary's day $29.63

b. 4/29/90 Concert ticket and Mileage 17.20

c. 4/30/90 Police dinner mileage .60

d. 5/01/90 Long distance call to

Town Manager 5.00

e. 5/07/90 Mileage and parking to

state attorney's office 7.00

f. 5/16/90 Meal and mileage--Chamber

of Commerce meeting 20.40

g. 5/16/90 Theater of Performing

Arts; mileage 3.00

h. 5/17/90 Dry cleaning 11.25

8. In May 1990, the commission approved a resolution deleting the earlier resolution allowing for advance payment of expense monies. The action was made retroactive to May 1, 1990. Kinzer maintained his expense list through the end of May and then quit. The process returned to the reimbursement method that had been in effect before.

9. Kinzer was reimbursed, or compensated in advance, for each of the items at issue. He contends that they were related to his activities on behalf of the town of Surfside.

10. The plant was for the town secretary, an individual who worked for the town. In the past, this type of purchase was reimbursed, according to Hal Cohen. The concert expenditure was for Kinzer and his wife. The call to the town manager was related to town business. Hal Cohen lives in Hollywood, Florida, a long-distance toll call. The mileage and parking at the state attorney's office was related to the complaint filed in this case. The police dinner, chamber of commerce meeting and Theatre of Performing Arts were functions at which Kinzer represented the town of Surfside.

11. Kinzer explained the dry cleaning bill in this manner:

Q Okay. What was the council-related duty

that resulted in a cleaning bill?

A Again, I was attending a luncheon for

the suit[sic], it was a luncheon and the

waiter spilled something all over my suit and

I felt that it should be cleaned because I

was there representing the town and also I

had a sport coat that was soiled at an

evening a few nights before, so I had those

cleaned and I got reimbursement. (Advocate's

Exhibit #2, p. 45)

12. With the exception of the cleaning bill, the items at issue are either plainly related to the commissioner's duty or were the type of items that had been over time considered proper for reimbursement by the town. There was no evidence of guidance provided to the commissioners other than a case by case informal determination by a town manager weary of disputes and subject to removal by a majority of the commission. Although some guidance is provided to employees of the Dade County School District with regard to appropriate expenditures and Kinzer as an assistant principal is aware of that guidance, his duties as an employee of the school board and duties as a city commissioner are quite different.

The Board Appointment

13. On May 8, 1990, the commission adopted a resolution creating a five-member advisory board for the Surfside Community Center for the purpose of advising the commission on improvements of operations and facilities at the center. Appointment to the board was by nomination by a member of the commission with approval by a majority of a quorum.

14. Regan Kinzer, Respondent's wife, wanted to serve on the new board. He discouraged her as he felt the board was simply political, and one politician in the family was enough. She went to Commissioner Novack who nominated her on June 12, 1990. Her nomination was unanimously approved. Respondent Kinzer was present and voted.

15. Steven Cypen, the town attorney, had advised previous commissioners that it was proper to vote on appointments of their relatives to uncompensated positions on town boards. Later, he became aware of an Ethics Commission opinion stating that such appointments were improper. Out of an abundance of caution he sent a letter to the affected board members with a copy of the opinion and each such member, including Mrs. Kinzer, resigned.

CONCLUSIONS OF LAW

16. The Division of Administrative Hearings has jurisdiction in this proceeding pursuant to section 120.57(1), F.S., and rule 34-5.010, F.A.C.

17. The burden of proving the elements of Respondent Kinzer's alleged violations is on the advocate for the Ethics Commission. Antel v. Department of Professional Regulation, 522 So2d 1056 (Fla. 5th DCA 1988); Department of Transportation v. JWC Co., Inc., 396 So2d 778 (Fla. 1st DCA 1981); and Balino v. Department of Health and Rehabilitative Services, 348 So2d 249 (Fla. 1st DCA 1977).

Section 112.313(6), F.S.

18. Section 112.313(6), F.S., provides, in pertinent part:

(6) 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.

"Corruptly" is defined in section 112.312(g), F.S., as:

...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.

19. Ample authority is cited by the Advocate for the general proposition that entertainment expenses, flowers, and expenses for a spouse are not proper expenditures of public funds. See, for example, Attorney General's opinions 68-12 and 71-28. However, those authorities and the Advocate recognize that the legislative or governing body may make a determination of what constitutes a public purpose and may authorize expenditures for that purpose. According to the evidence in this proceeding, the town of Surfside has no clear guidelines, and most of the expenditures at issue here were either acceptable according to past custom and practice or were within the "grey area" described by the city manager.

20. The dry cleaning expenses are beyond even that grey area. If the cleaning expenses were for a public purpose, why not the purchase of the suit? The absurdity of such a claim simply underscores the fact that a public body which declines to establish proper limits for its members' expenditures is risking repeated complaints and repeated transgressions.

21. In Blackburn v. State Commission on Ethics, 589 So2d 431, (Fla. 1st DCA 1991) the court held that an essential element of the charged offense under section 112.313(6) is wrongful intent, that is, that the Respondent acted with reasonable notice that his conduct was inconsistent with the proper performance of his public duties and would be a violation of the law or the code of ethics in part III of Chapter 112.

22. The Advocate failed to prove that essential element with regard to all but the dry cleaning expenditure. She proved the expenditures were made by Kinzer with public funds that were advanced or reimbursed. Kinzer's explanation and that of the town manager/finance officer effectively established that Kinzer had no reasonable notice regarding the impropriety of most of those expenditures.

Section 112.3135(2)(a), F.S.

23. Section 112.3135(2)(a), F.S., provides:

(2)(a) A public official may not appoint,

employ, promote, or advance, or advocate for

appointment, employment, promotion, or

advancement, in or to a position in the

agency in which he is serving or over which

he exercises jurisdiction or control any

individual who is a relative of the public

official. An individual may not be

appointed, employed, promoted, or advanced in

or to a position in an agency if such

appointment, employment, promotion, or

advancement has been advocated by a public

official, serving in or exercising

jurisdiction or control over the agency, who

is a relative of the individual.

24. Although Kinzer did not encourage or advocate his wife's appointment, he did vote to approve it and by so doing participated in the appointment as a member of a collegial body. The evidence establishes that the commission, not the single nominating commissioner, made the appointment.

25. The proscription of section 112.3135(2)(a), F.S., applies to paid and unpaid boards alike. Galbut v. City of Miami Beach, 605 So2d 466 (3rd DCA 1992) (pending on certified question to the Supreme Court on other issues).

26. Kinzer's counsel and the town attorney argue that his vote on the appointment was compelled by section 286.012, F.S., which provides, as follows:

286.012 Voting requirement at meetings of

governmental bodies.--No member of any state,

county, or municipal governmental board,

commission, or agency who is present at any

meeting of any such body at which an official

decision, ruling, or other official act is to

be taken or adopted may abstain from voting

in regard to any such decision, ruling, or

act; and a vote shall be recorded or counted

for each such member present, except when,

with respect to any such member, there is, or

appears to be, a possible conflict of

interest under the provisions of s. 112.311,

s. 112.313, or s. 112.3143. In such cases,

said member shall comply with the disclosure

requirements of s. 112.3143.

Section 112.311(6), F.S., provides:

(6) It is declared to be the policy of the

state that public officers and employees,

state and local, are agents of the people and

hold their positions for the benefit of the

public. They are bound to uphold the

Constitution of the United States and the

State Constitution and to perform efficiently

and faithfully their duties under the laws of

the federal, state, and local governments.

Such officers and employees are bound to

observe, in their official acts, the highest

standards of ethics consistent with this code

and the advisory opinions rendered with

respect hereto regardless of personal

considerations, recognizing that promoting

the public interest and maintaining the

respect of the people in their government

must be of foremost concern. (emphasis added)

The Ethics Commission has consistently held that a city council's appointment of a council member's relative to a board or authority is a violation of section 112.3135, F.S. (CEO 90-58, CEO 89-53).

27. It is unnecessary here to reach the issue raised in Galbut, supra, and in some Commission on Ethics (CEO's) opinions regarding whether the related council member's abstention avoids the violation. Kinzel did not abstain. His reliance on prior advice of counsel mitigates, but does not obviate the violation. James Gordon v. Commission on Ethics, 609 So2d 125 (Fla. 4th DCA 1992). In contrast to section 112.313(6), F.S., discussed above, a corrupt or wrongful intent is not an element of a violation of section 112.3135, F.S.

Standard of Proof and Penalty

28. Kinzer's counsel argues that a standard of proof greater than preponderance of evidence be applied, but he cites no authority. In the past the Ethics Commission has applied the preponderance of evidence standard. In re: Leo Nicholas, 11 FALR 5234 (1989). Whether that standard or the stricter "clear and convincing" standard is applied, the advocate has met her burden as discussed above. Even assuming that the ethics code is "penal in nature", as argued, there is no authority for applying the ultimate standard, "beyond a reasonable doubt". See Ferris v. Turlington, 510 So2d 292 (Fla. 1987) for a cogent explanation of the "clear and convincing" standard applicable in license discipline cases, considered penal in nature.

29. The advocate has recommended restitution of $89.08 and a total civil penalty of $700. Section 112.317(1), F.S. provides a range of penalties for violations of the ethics code by a public officer, which range includes a civil penalty and restitution. The advocate's recommendation is based on proof of several alleged violations. Since all were not proven, her recommendation is adjusted here.

RECOMMENDATION

Based on the foregoing, it is, hereby,

RECOMMENDED:

That the Commission on Ethics enter its final order and public report finding that Respondent Kinzer violated section 112.313(6), F.S., with regard to expenditure of $11.25 for dry cleaning, and violated section 112.3135(2)(a), F.S., as alleged in the order finding probable cause; and recommending a civil penalty of $300.00 and restitution of $11.25.

DONE AND RECOMMENDED this 25th day of January, 1994, in Tallahassee, Leon County, Florida.

___________________________________

MARY CLARK

Hearing Officer

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904)488-9675

Filed with the Clerk of the

Division of Administrative Hearings

this 25th day of January, 1994.

APPENDIX TO RECOMMENDED ORDER, DOAH CASE NO. 93-0313EC

The following constitute specific rulings on the findings of fact proposed by the Respondent:

1. Adopted in substance in paragraph 1.

2. Addressed in statement of issues.

3. Adopted in paragraph 7.

4. Adopted in substance in paragraph 9.

5. Adopted in paragraphs 5 & 6.

6. Adopted in paragraph 4.

7. Adopted in paragraph 6.

8. Adopted in paragraph 9.

9. Adopted in part in paragraphs 1 and 3; otherwise rejected as

irrelevant.

10. Adopted in paragraph 14.

11. Adopted in part in paragraph 14; the resolution creating the

board provided the method of appointment, including the

requirement for vote by the commission; Kinzer voted

12. Adopted in substance in paragraph 15.

13. Addressed in part in conclusions of law, otherwise

irrelevant.

[no paragraph 14]

15. Adopted in paragraph 15.

COPIES FURNISHED:

Virlindia Doss, Esquire

Advocate for Commission on Ethics

Department of Legal Affairs

The Capitol, PL-01

Tallahassee, Florida 32399-1050

Neal L. Sandberg, Esquire

1492 South Miami Avenue

Miami, Florida 33130

Bonnie Williams, Executive Director

Ethics Commission

Post Office Drawer 15709

Tallahassee, Florida 32317-5709

Phil Claypool, General Counsel

Ethics Commission

Post Office Drawer 15709

Tallahassee, Florida 32317-5709

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.