STATE OF FLORIDA
DIVISION OF
ADMINISTRATIVE HEARINGS
IN RE:
WINSTON W. "BUD" GARDNER,
)
) CASE
NO. 92-4946EC
Respondent. )
___________________________________)
RECOMMENDED ORDER
Pursuant to notice, the Division of Administrative Hearings, by its duly
designated Hearing Officer, Mary Clark, after the parties' waiver of formal hearing,
accepted documents, deposition testimony and stipulated facts in the above-styled
case on January 28, 1993, and ordered the parties to file proposed recommended
orders within 30 days of her Order entered January 29, 1993.
APPEARANCES
Advocate: Virlindia Doss
Assistant Attorney General
Department of Legal Affairs
The Capitol
Tallahassee, Florida 32399-1050
For Respondent: Leonard J.
Dietzen, III
Parker, Skelding, Labasky & Corry
318 North Monroe Street
Post Office Box 669
Tallahassee, Florida 32302
STATEMENT OF THE ISSUES
On July 22, 1992, the State of Florida Commission on Ethics issued an
order finding probable cause that Respondent, Winston W. "Bud"
Gardner, as a member of the Florida House of Representatives, violated Section
112.313(4), Florida Statutes, by accepting an all-expense paid weekend trip to
Key West in May, 1988, for himself and his wife, when he knew or should have
known that the trip was given to influence his official actions.
The issue here is whether that violation occurred, and if so, what
discipline or penalty is appropriate.
PRELIMINARY STATEMENT
On August 10, 1992, the Executive Director of the Commission on Ethics
forwarded this case to the Division of Administrative Hearings for conduct of a
public hearing and for a recommended order.
After the case was set for a public hearing before the undersigned
Hearing Officer, the Respondent and the Commission Advocate stipulated to a
written record upon which the decision would be based. That record consists of the depositions of
Prentiss Mitchell, Charles Hood, William McCue, Paul Sanford, John Williamson,
Michael Huey, Gary Guzzo, and Robert Coker; and the sworn statement of the
Respondent, a letter written by the Respondent, and two factual stipulations.
Both parties presented proposed recommended orders. The findings of fact proposed by each are
addressed in the attached appendix.
FINDINGS OF FACT
1. Respondent was elected to the
Florida House of Representatives in 1978, where he served until his election to
the Florida Senate in November 1988.
Respondent served in the Senate until November 1992.
2. On May 20, 1988, Respondent
and his wife, together with a group of other persons departed Tallahassee in
private airplanes for a weekend trip to Key West, which the participants called
the "Conch Conference".
3. The group, with one
exception, was comprised of lobbyists, legislators and their spouses or
companions.
4. Among the lobbyists on the
trip were William McCue, who lobbies for insurance interests; Gary Guzzo, who
lobbies primarily for insurance and health care service industries; Paul
Sanford, who lobbies for several insurance companies, Southern Bell, S. E.
Toyota distributors and others; Prentiss Mitchell, who lobbies for insurance
interests, as well as the Glass Packaging Institute and the Florida Fruit and
Vegetable Association; Michael Huey, who lobbies for various interests; Charles
Hood, who represents Georgia Pacific; John Williamson, who represents CSX
Transportation; and Robert Coker, who lobbies for U. S. Sugar.
5. Gary Guzzo recalls these
legislators on this or a prior year's trip to the Keys: the Respondent, Frank Messersmith, Carl Carpenter,
Beverly Burnsed, Jon Mills, Ron Johnson, Sam Bell and Chris Meffert. (Guzzo, p.9) House Sergeant at Arms, Wayne Westmark, also attended.
The prior year's trip to the Keys to unwind had been a success, so the
trip was scheduled again at a hectic time during the closing weeks of the
legislative session. Respondent recalls
being invited by a group of lobbyists as he came off the floor of the House
into the rotunda. (Gardner, pp.6-7) He knew his hosts were lobbyists and knew
generally whom they represented.
(Gardner, p.21)
6. The lobbyists paid all the
expenses of the legislators and their spouses, including food, lodging and
entertainment. At least two lobbyists,
including Guy Spearman who represents Anheuser-Busch, provided private planes
which the group used to travel to and from Key West.
7. The cost of the trip was
approximately $673 per person. Because
the lobbyists paid for both Respondent and his wife's expenses, the value to
Respondent was $1,346. (Gardner Letter,
p.4)
8. In Key West, activities
available to the legislators at the lobbyists' expense included diving, deep-sea
fishing and golf. The Respondent and
his wife went deep-sea fishing for a half-day on Saturday, went shopping, had
dinner, and returned with the group to Tallahassee on Sunday.
9. The lobbyists shared the cost
of the trip equally and billed the expense to their clients, or in one case, to their law firm's governmental
affairs expense account. Mr. Huey only
billed clients who had issues pending before the Legislature at the time. Similarly, Mr. Mitchell billed only one
client.
10. The Respondent did not
reimburse any of the lobbyists, nor did he offer to reimburse them or
reciprocate by purchasing similar trips for them. He knew the lobbyists were not paying out of their own pockets.
11. It is generally considered
"bad form" to talk about business on trips such as this, but it was
difficult to refrain entirely from talking about matters in which everyone
present was interested; and legislative business invariably came up. Mr. Huey was sure he talked to Respondent
about some legislative issues in Key West.
(Huey, p.19) None, including Mr.
Huey, can remember any specific issues, and it is unlikely that significant direct
advocacy occurred on the trip.
12. Lobbyists promote the
interests of their clients before the Legislature, primarily by obtaining
passage of bills or amendments which would help their clients and by defeating
bills which would injure their clients.
Influencing legislators is at the core of the lobbyist's vocation; it
was the job of the testifying lobbyists to try and influence legislators.
13. The trip came right before
the final two weeks of the legislative session when most bills are passed. The persons selected for the trip were
considered compatible and "fun" people, but they were also in
leadership roles. The lobbyists were
"senior type lobbyists".
(Mitchell, p.11)
Mr. Mitchell's clients had matters affecting their interests pending
before the Legislature at the time, as did Mr. Huey's, Mr. Hood's, Mr. Coker's,
Mr. Williamson's, Mr. Sanford's, Mr. McCue's, and Mr. Guzzo's.
14. At the time of the trip, the
Respondent was a member of the House of Representatives. He had been Chairman of the Finance and
Taxation committee the year before and was, at the time of the trip, Chairman
of the Rules and Calendar Committee. He
also served on the Appropriations, Rules and Calendar, Education K-12 and Joint
Legislative Information Technology Resource Committees. (Stip. No. 2)
15. Rules Chair is a powerful
position. In addition, since most bills
go through the Appropriations Committee, this is an important committee
assignment.
Because Respondent had served in the House for ten years at the time of
the trip, and because of his committee assignments, he was obviously in a
position to help or harm the interests of the lobbyists.
16. Mr. Mitchell and Respondent
were friends, but their friendship centered on their business
relationship. Mr. Mitchell stated,
What we have to do in this process is when
these folks come in, these freshmen, I have
been around there for 23 years and nobody has
been there longer than I have, so I have seen
them all come in as freshmen, we try to make
a determination as to who these people are
going to be and whether they have leadership
capabilities and certainly Bud is evidence by
where he is today, we recognize that early
on, so he became a good friend for that
reason.
(Mitchell, p.25, emphasis supplied)
Mr. Huey's friendship with Respondent was also professional in
nature. This was not a pleasure trip
motivated by friendship between the Respondent and his hosts.
17. The lobbyists hoped their
expenditures would yield access and trust.
These intangible returns are best described in their own words:
I guess its hard to quantify. I think the
opportunity to learn more about the specific
issue or issues in general which may overall
impact your clients is an opportunity that
probably doesn't --there is no way that that
information just gets sent out generally to
the people who lobby, so the chance to be
with legislators who are in particular
positions and what have you, gives you maybe
a chance to learn a little more about where
the process is going to end up, not that they
are disclosing anything to you that they
wouldn't disclose to anybody else, but it
gives you the chance to ask them. So I think
the primary thing that you're doing is
hopefully getting some more time to access
the folks under circumstances that you may be
able to explain your position under less time
-- with fewer time constraints on them than
trying to catch them in their office when they
are on the phone and trying to talk to three
other people in their office.
(Huey, p.21)
Flying an airplane or playing golf or
whatever, it's a way in which we get to know
those legislators and not that -- it's not
that you may even discuss any business, but
certainly flying an airplane and someone
sitting over in the right seat, you have got
an opportunity to talk to him. But even more
important than that is that once you get back
from a trip or once you get through playing
golf with one of those guys, whether you talk
business or not,
certainly the next day if you
were at the Capitol and you walked by his
office, he is going to be more accessible to
me than he would you if you had never met the
guy. That's the
reason we do an awful lot of
entertaining and spending time with these
fellows..
(Mitchell, p.26)
*
* *
This process down here is so -- it's fairly
sophisticated and fairly complicated and
there's a lot of demands on legislators'
time and, to be honest with you, sometimes if
you're not known and I'm not to a lot of
legislators, they don't know me personally,
and without some sort of contact and identity
that's already established, you're just
another face in the crowd that they see every
day, all day long and, you know, I guess in
some respect it's similar to a salesman, you
cultivate your customer if you can and try to
get to know him and him to know you. It's
just part of human nature, I think.
(Hood, p.19)
Well, you know, its like
selling. You know,
you get to know your customer better. I mean,
we deal with these people, like you say, on a
daily basis, and its just getting to know the
legislators better so that you can talk with
them.
(Williamson, p.15)
Well, you know, one of my responsibilities is
to try to represent our company's interests in
the legislative process.
And in order to do
that, I have to have a certain credibility
with members.
I've got to have a certain
relationship with members, that they know me
and they can count on me, that in the heat of
the process over there, they can come to me
and say, "Robert, I've got this issue that has
come up. Tell me
how it impacts agriculture.
Tell me how it impacts your company."
At the same time, when I find something in the
process that is in our company's best interest
and want to go and talk to somebody, it's nice
to be able to know that they know me, and they
will take time to talk to me about it.
So from our company's standpoint, we felt like
over the years the
time that I spent and the
resources that I invested in this process was
worthwhile.
(Coker, p. 17)
Well, I think if a legislator knew me and knew
that I was an honest person, that I had been
with him and -- let's say we went dove hunting
and killed a dove, and the legislator thought
he shot the dove, and I said, "Mine, mine,"
and I did that every time a dove fell out of
the air. He's
going to say, "Wait a minute.
This is a person you just can't trust." If
I was playing golf with him or anything of
that nature, if they saw that I was a person
that had their same, if you will, likes and
desires as far as recreational activities, I
guess it was just a personal bond there. We
became closer, and they would believe when I
was dealing with them in a business fashion
that I would have the same ethics that I had
with them when I was dealing with them on a
personal basis.
Q So if I'm right
here, it helps to establish
a relationship?
A A personal relationship.
Q And that would
be to your advantage if you
had a personal relationship?
A Certainly.
(McCue, p.10)
18. There is a direct nexus
between that trust/access and the desired influence:
I think my primary function as a lobbyist is
to, first, monitor all legislation to
determine what effect it may have on my
clients, either positive or negative. After
making that determination, you either try to
kill or amend the bad legislation or promote
the good legislation, good in the sense of
the manner in which it affects your clients.
In order to do that, I think that I have to
provide good, correct information to the
legislators and the staff people. I have to
do everything in my power to make sure that
my credibility with both those groups remains
at the highest level possible and that I have
access to those people in order to make sure
my message has gotten to those people. And
hopefully, if they believe that my position
is a correct one, then they will accept that
and go in the direction that
I would like them
to with respect to their vote.
(Sanford, pp.6-7, emphasis added)
19. As a ten-year veteran of the
House of Representatives when this trip was taken, Respondent had been the
guest of various lobbyists and/or their employers on a number of
occasions. In his letter to the Ethics
Commission, he writes:
I think all the commission members should have
an understanding of these first impressions.
You are elected the first
week in November and
immediately take office.
The Organization
Session is two weeks later, but in those
years, even before the Organization Session we
were invited on our first trip - the party
caucus - usually held away from Tallahassee.
Most of the festivities associated with the
caucus were paid for by the local community
and lobbyists.
That was immediately followed
by the Organization Session which was also an
escape from reality with its endless line of
parties and receptions also paid for by
lobbyists. Before
the end of November we had
received our initial notification of the Walt
Disney World
Legislative Weekend scheduled for
February. Usually
in January we received an
invitation to another legislative weekend
sponsored by a local community such as Dade
County or Broward County or Duval county or
Brevard County.
That was usually scheduled
for March or April so as to gain the most
influence during the upcoming legislative
session scheduled to begin in April. That was
also an all expense paid trip for legislators
and their families paid for by businesses from
the local community and lobbyists. Lobbyists
who contributed were allowed to attend. Also
about this time was the Agriculture Weekend
Getaway down around Lake Okeechobee, all paid
for by agriculture lobbyists. By the time the
first legislative session was ready to start,
a new legislator was a seasoned traveler.
(Letter, pp.1-2)
20. Referring to the Disney
weekend, Respondent points out that he is "sure that the $80,000 to
$100,000 cost to Disney for the weekend was not a totally benevolent gesture on
their part." (Letter, p.2)
21. Regarding the Brevard
weekend, Respondent quotes an April 1987 Florida Today newspaper as saying that
the legislative weekend is an idea. "...that may in time prove to be worth
more than the $50,000 or so that will be spent...", and he asks "[d]o
you think the contributions to support these weekend getaways by lobbyists from
outside the regional areas were nothing more than a benevolent gesture,
also?" (Letter, pp.2-3)
22. The Respondent also points
out that one of the newspaper's lobbyists "took a special charter to
Tallahassee to bring the Speaker of the house to Brevard so that he could have
some 'quality' time with him."
(Letter, p.3)
23. These statements made by the
Respondent reveal that he knew that the intent of the lobbyists was to
influence him in the performance of his official duties. He observed that legislative weekends were
usually scheduled for March or April "so as to gain the most influence
during the upcoming legislative session scheduled to begin in April." (Letter, p.2, emphasis added)
24. The Respondent also states:
During my first year in the legislature I
discovered that the Speaker Designate was a
flying enthusiast.
I was Commanding Officer
of VMA-142 in Jacksonville. I worked for over
a year to obtain permission to take the future
Speaker up in a two seat jet attack aircraft.
I wanted a good committee assignment when he
became Speaker.
(Letter, p.3, emphasis added)
From the very beginning of his
legislative career Respondent recognized the effectiveness of gaining access to
powerful persons to influence their decisions.
CONCLUSIONS OF LAW
25. The Division of
Administrative Hearings has jurisdiction in this proceeding pursuant to Section
120.57(1), Florida Statutes, and Florida Commission on Ethics Rule 34-5.010,
Florida Administrative Code.
26. The standard of proof in an
administrative procedure is the preponderance of the evidence. In re Michael Langton, 14 F.A.L.R. 4175,
4178 (1992); see also, In re Leo C. Nichols, 11 F.A.L.R. 5234 (1989).
27. 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.
28. The parties have stipulated
that the only issue that remains to be resolved is whether Respondent had
actual or constructive knowledge that a thing of value, in this case a trip to
Key West, was given to influence a vote or other action in which Respondent was
expected to participate in his official capacity. (Stip., p.5; Respondent's Proposed Recommended Order, p.12)
29. No evidence was presented to
indicate Respondent was ever told that he would be expected to act or vote in a
certain way in return for the trip; no
evidence was presented to indicate how Respondent ultimately did vote or act on
matters affecting the trip donors; and no evidence was presented that the
lobbyists initiated discussion of specific issues during their getaway
opportunity.
30. None of this matters under
section 112.313(4), Florida Statutes, which does not require "...that
there be an actual agreement, that the intended purpose of the gift (to
influence) be achieved or that the Respondent 'intended' that the gift was to
influence his vote." In re Bernard
Hart, 14 F.A.L.R. 1054, 1076 (1991), aff'd, Fourth District Court of Appeal,
August 12, 1992.
31. Respondent argues that the
lack of evidence of a specific nexus connecting the thing of value (the trip)
to a particular bill or issue exonerates him as it did the Respondent in In re
James Resnick, 14 FALR 1002 (1991). In
that case, the Ethics Commission stated:
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.
(Resnick, p. 1006)
32. The circumstances are vastly
different here. Respondent had more
than an ongoing regulatory responsibility over the interests of the
lobbyists. The evidence proved he had
real, effective power to act on those interests and he would very likely be
required to act on them at some point in the last few weeks of the session
immediately following the trip.
33. Resnick was a State Athletic
Commission member and the "things of value" he received were two free
tickets to boxing matches, not a $1,346 weekend. The General Counsel for the Department of Business Regulation had
instructed the Commission members that it was permissible for them to accept up
to two tickets per match.
34. Finally, the specific
holding of Hart, cited above, was made after Resnick was decided, and
substantially erodes any precedential value of Resnick.
35. This conclusion avoids the
illogic of prohibiting specific influence "purchases" while
permitting "investments" which may ultimately prove more valuable.
36. There is another more
significant nexus at issue here, the nexus between access and influence. The lobbyists' testimony, as well as the
candid statements of the Respondent plainly establish that access was the quid
pro quo. The circumstances described in
this proceeding further establish that influence was the natural and intended
result of that access.
37. The Respondent's letter
acknowledges that most persons and entities do not give away "something
for nothing". The Ethics
Commission has recognized this principle.
In CEO 75-21, the Commission opined that a trip offered by Florida Power
and Light Company to Florida Pollution Control Board members would cause a
reasonably prudent person to be influenced and should be refused. In CEO 75-43, the Commission found that
members of Tampa Board of Port Wardens and Pilot Commissioners should not
accept gifts of cases of liquor from a group of pilots.
38. The acknowledgments by
Respondent that trips from parties with business before the Legislature were
not "benevolent gestures" and his own use of the practice in trying
to obtain a good committee assignment leave no room for doubt that he knew the
purpose of the trip.
39. The Respondent was Rules
Chairman at the time of the trip and in a position of leadership in the House;
he was in a position to impact the interests of any lobbyist or group. The Respondent knew his hosts and knew that
they had issues before the Legislature.
The Respondent assumed the lobbyists would pay for the trips; he was
aware the gifts were part of the lobbyists' job. The Respondent has never taken his hosts on any reciprocal type
of outing. Respondent knew the gift was
not one made out of friendship.
Finally, the monetary value of the trip is significant. Although cost alone is not determinative,
the Commission has indicated that the greater the value of the thing given, the
more difficult it is to justify its being given for any purpose except to
influence. CEO's 80-27, 85-83. The weekend's value was rather more than a
luncheon tab.
40. In CEO 75-21, the Commission
opined that the term, "influence", referred to an alteration of an
official's independence and impartiality of judgment. In CEO 80-27, the Commission adopted the following definition of
the word, "influence":
"To affect, modify, or act upon by physical, mental or moral power,
especially in some gentle, subtle and gradual way." The Commission has found that the providing
of a trip by one who stands to gain from the actions of the recipient evidences
an intent to influence. In CEO 75-22,
the Commission advised a city director of Housing and Urban Development not to
accept a trip sponsored by General Electric Corporation, saying "logical
analysis would lead one to accept the premise that General Electric, to warrant
the expenditure of corporate funds, would do so only on the basis that
beneficial results would accrue to the company. And this cannot be compatible with a complete absence of intent
to influence."
41. The transfer of money or
other valuables carries with it the tendency to create a quid pro quo
relationship. This has been recognized
by both the Florida and the United States Supreme Courts as the rationale
behind the limitation on campaign contributions. See Richman v. Shevin, 354 So.2d 1200 (Fla. 1977), cert. den. 439
U.S. 953, 99 S.Ct. 348, 58 L.Ed.2d 343 (1978), citing Buckley v. Valeo, 421
U.S. 1, 96 S.Ct. 612, 46 L.Ed.2d 659 (1978).
42. While there may have been no
quid pro quo in the strict sense of expecting the Respondent to vote in a
particular way on a specific bill, the trips were designed to engender
favorable feelings by the Respondent toward his hosts and their interests. This is influence as the Commission has
defined it.
43. Respondent in his letter
earnestly argues that this proceeding has unfairly singled him out of myriad
others who also accepted expense-paid trips in the past.
44. The statute in question here
had been on the books for over ten years when the trip was made. If, as suggested in Respondent's letter, the
rules were different then, those rules have not been cited in this proceeding. It is obvious that Respondent and others
considered that the rules were different then.
That those others, with few exceptions, are not also before the
Commission, is irrelevant; and the reasons that others are not being pursued,
if indeed they are not, is outside of the record in this proceeding. That the practice of accepting trips was
common is testament to its efficacy, not to its propriety.
45. Based on the evidence before
me and on the thorough argument of counsel for both parties, I conclude that
Respondent knew or should have known that the Key West trip in May 1988 was
provided to him and his wife to obtain access to him and thus influence him in
his official capacity as an important member of the Florida House of
Representatives; and, Section 112.313(4), F.S., was violated.
46. Respondent's argument in his
proposed recommended order that the statute is unconstitutional specifically
preserves that issue for another more appropriate tribunal.
Penalty
47. Section 112.317, Florida
Statutes, provides, in pertinent part:
112.317 Penalties.--
(1) Violation of
any provision of this part,
including, but not limited to, any failure to
file any disclosures required by this part or
violation of any standard of conduct imposed
by this part, or violation of any provision of
s. 8, Art. II of the State constitution, in
addition to any criminal penalty or other
civil penalty involved, shall, pursuant to
applicable constitutional and statutory
procedures, constitute grounds for, and may be
punished by, one or more of the following:
*
* *
(d) In the case
of a former public officer or
employee who has violated a provision
applicable to former officers or employees or
whose violation occurred prior to such
officer's or employee's leaving public office
or employment:
1. Public censure
and reprimand.
2. A civil
penalty not to exceed $5,000.
3. Restitution of
any pecuniary benefits
received because of the violation committed.
48. Section 112.324, F.S.
provides, in pertinent part:
112.324 Procedures on complaints of violations.--
*
* *
(3) If, in cases
pertaining to members of the
Legislature, upon completion of a full and
final investigation by the commission, the
commission finds that there has been a
violation of this part or of any provision of
s. 8, Art. II of the State Constitution, the
commission shall forward a copy of the
complaint and its findings by certified mail
to the President of the Senate or the Speaker
of the House of Representatives, whichever is
applicable, who shall refer the complaint to
the appropriate committee for investigation
and action which shall be governed by the
rules of its respective house. It shall be
the duty of the committee to report its final
action upon the complaint to the commission
within 90 days of the date of transmittal to
the respective house.
Upon request of the
committee, the commission shall submit a
recommendation as to what penalty, if any,
should be imposed.
In the case of a member
of the Legislature, the house in which the
member serves shall have the power to invoke
the penalty provisions of this part.
*
* *
(7) If, in cases
pertaining to complaints
other than complaints against impeachable
officers or members of the Legislature, upon
completion of a full and final investigation
by the commission, the commission finds that
there has been a violation of this part or of
s. 8, Art. II of the State Constitution, it
shall be the duty of the commission to report
its findings and recommend appropriate action
to the proper disciplinary official or body as
follows, and such official or body shall have
the power to invoke the penalty provisions of
this part:
*
* *
(i) In any case
concerning a former member of
the Legislature who has violated a provision
applicable to former members or whose
violation occurred prior to leaving public
office, the proper disciplinary official is
the Speaker of the House of Representatives or
the President of the Senate, whichever is
applicable.
(emphasis supplied)
49. The Ethics Commission has
taken the position that it is without authority to recommend a penalty in a
case involving a member of the Legislature:
Violations of the Code of
Ethics are penalized
in accordance with the procedures specified in
Section 112.324, Florida Statutes. Section
112.324, Florida Statutes. Section 112.324(3)
provides that when the Commission finds that a
member of the Legislature has committed a
violation, the Commission shall forward its
findings to the President or Speaker, as
appropriate, for referral to committee for
investigation and action. That subsection
specifically states:
"Upon request of the
committee, the commission shall submit a
recommendation as to what penalty, if any,
should be imposed."
Therefore, the Commission
is not empowered to recommend a penalty for
any statutory violation at this stage of its
proceedings.
Langton, supra, at 4178.
50. At the time of the hearing
and Commission order, Respondent Langton was still a legislator. The Respondent here is not, and subsection
112.324(7), rather than subsection (3), applies. It is, therefore, necessary to recommend a penalty.
51. As Respondent is no longer a
public official, the imposition of a penalty as a deterrent makes no
sense. The violation was, nonetheless,
serious, and some penalty is appropriate.
52. Restitution to the donors
would amount to a windfall. The value
of the thing received, however, provides a benchmark for establishing a civil
penalty, as Respondent should not be permitted to keep what he improperly
gained.
RECOMMENDATION
Based on the foregoing, it is, hereby,
RECOMMENDED:
That the Commission on Ethics enter its final order and public report
finding that Winston W. "Bud" Gardner violated Section 112.313(4),
F.S., and recommending a civil penalty of $1,346.
DONE AND RECOMMENDED this 7th day of April, 1993, 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 7th day of April, 1993.
APPENDIX TO RECOMMENDED
ORDER, CASE NO. 92-4946EC
The following constitute specific rulings on the findings of fact
proposed by the parties.
The Advocate's Proposed
Findings
1. Adopted in paragraph 1.
2. Adopted in paragraph 2.
3. Adopted in substance in
paragraph 3. The exact
number was not established.
4. Adopted in paragraph 4,
except that it was not
established that Guy Spearman was on the trip.
Another lobbyist was mentioned, Bernie Parrish, but
the evidence here does not establish that he was on
the trip either.
5. Adopted in substance in
paragraph 5; although
Guzzo's testimony related to both years' trips.
6. Adopted in paragraph 6.
7. Adopted in paragraph 7.
8. Adopted in paragraph 8.
9. Adopted in substance in
paragraph 9, although not
all billed their clients, as found in paragraph 9.
10. Adopted in paragraph 10.
11. Adopted in paragraph 11.
Part II
1.-4. Adopted in summary in
paragraph 12.
1.-6. Adopted in substantial
part in paragraph 17.
7.-9. Adopted in paragraph 13.
10. See Part I, paragraph 9,
above.
11. Adopted in paragraph 14.
12.-13. Adopted in paragraph 15.
14. Rejected as
unnecessary.
15. Adopted in
paragraph 10.
18.-19. Adopted in paragraph 16.
20.-23. Rejected as unnecessary.
24.-25. Adopted in substance in
paragraphs 17 and 18.
Part IV
1. Adopted in paragraph 5.
2.-4. Adopted in paragraph 10.
5.-6. Rejected as unnecessary.
7. Adopted in paragraph 19.
8. Adopted in paragraph 20.
9. Adopted in paragraph 21.
10. Adopted in paragraph 22.
11. Adopted in substance in
paragraph 23.
12. Adopted in paragraph 24.
13.-15. Rejected as cumulative
or unnecessary.
Respondent's Proposed
Findings of Fact
1.-2. Rejected as unnecessary.
3. Addressed in Conclusions
of Law paragraph 27.
4. Addressed in Preliminary
Statement.
5. Adopted in paragraph 14.
6. Adopted in paragraph 2.
7. Adopted in substance in
paragraph 13.
8. Rejected as unnecessary.
9. Adopted in part in
paragraph 5, otherwise rejected
as irrelevant.
10.-11. Rejected as irrelevant.
12. Adopted in part in
paragraph 5. While relaxation
was the reason for the venue, it was not the trip's
primary purpose as established by the greater
weight of evidence.
13. Adopted in part in
paragraph 17. Access was,
however, the primary rather than secondary purpose.
14. Adopted in paragraph 12.
15. Rejected as contrary to
the evidence.
16. Rejected as unnecessary.
17.-19. Adopted in substance in
paragraph 13.
20. Rejected as
unnecessary. Actually, this reply by
Respondent further evidences his knowledge of the
lobbyists' clients' reason for paying for the trip.
21. Adopted in paragraph 8.
22. Adopted in part in
paragraph 9, otherwise rejected
as contrary to the weight of evidence.
23. Rejected as unnecessary.
24. Adopted in part in
paragraph 7. The exact number
of lobbyists contributing was not established.
25. Rejected as irrelevant.
26. Rejected as
unnecessary. The cost of the trip is
relevant, but Respondent's belief that the cost was
"fairly minor" is either not credible (if
calculated to disavow his knowledge of the intent
to influence) or simply inconclusive. "Fairly
minor" is meaningless.
27.-30. Adopted in paragraph 19.
31.-32. Rejected as unnecessary
or irrelevant. The
lobbying need not occur on the trip for the
influence to be exercised.
33.-36. Adopted in substance in
paragraph 11.
37. Rejected as unnecessary
or contrary to the weight
of evidence.
The friendships were professional,
according to the evidence.
38. Adopted in paragraph 17.
39. Rejected as irrelevant,
except for the statement
that Respondent never felt as though anyone was
trying to influence him in any way, which statement
is rejected as contrary to the greater weight of
the evidence, including evidence from Respondent's
own statements.
COPIES FURNISHED:
Virlindia Doss
Assistant Attorney General
Department of Legal Affairs
The Capitol, PL-01
Tallahassee, Florida 32399-1050
Leonard J. Dietzen, III, Esquire
Parker, Skelding, Labasky & Corry
318 North Monroe Street
Post Office Box 669
Tallahassee, Florida 32302
Bonnie Williams
Executive Director
Ethics Commission
Post Office Box 6
Tallahassee, Florida 32302-0006
Phil Claypool
General Counsel
Ethics Commission
Post Office Box 6
Tallahassee, Florida 32302-0006
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.