BEFORE THE

STATE OF FLORIDA

COMMISSION ON ETHICS

 

 

In re JOHN S. MOOSHIE,                                         Complaint No. 90-77

                                                             Final Order No. COE 92-20

          Respondent.                                         DOAH CASE NO. 91-7981EC

_______________________/

 

 

FINAL ORDER AND PUBLIC REPORT

 

     This matter came before the Commission on Ethics on the Recommended Order rendered in this matter on August 19, 1992 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 Sections 112.3143(2)(b) and 112.3143(3), Florida Statutes (1989), that the Respondent did not violate Section 112.313(6), Florida Statutes (1989), and that the Respondent be required to pay a civil penalty of $4,000.00.  The Respondent filed exceptions.

 

     Having reviewed the Recommended Order, the Respondent's exceptions, the Commission's Advocate's response to those exceptions, and the record (proposed recommended orders not having been filed by the Respondent and the Advocate) of the public hearing of this complaint, and having heard the arguments of counsel for the Respondent and the Commission's Advocate, the Commission makes the following findings, conclusions, rulings and recommendations:

 

RULINGS ON RESPONDENT'S EXCEPTIONS

 

     1.  In his exception designated "I. 1.," the Respondent excepts to the Hearing Officer's reference, in the Preliminary Statement section of the Recommended Order, to the Respondent as "Mr. Witkowski."  Obviously, the reference is merely a scrivener's error.  Therefore, this exception is accepted.

 

     2.  In his exception designated "I. 2.," the Respondent excepts to the Hearing Officer's statement, in the Preliminary Statement section of the Recommended Order, that "Mr. Mooshie called no witnesses," arguing that Counsel for the Respondent, the Advocate, and the Hearing Officer agreed that Counsel for the Respondent could question witnesses James Jarrett and Jody Elliott during the Advocate's case-in-chief as she would if she were to call them during the Respondent's case-in-chief, and arguing that the Respondent's deposition, placed in evidence by the Advocate, would also serve as a part of the Respondent's case-in-chief.  Based upon the Respondent's citations to the official transcript of the hearing contained in this exception, upon a review of the record in this matter, and upon a recognition of the relatively informal manner in which administrative hearings are conducted, it does appear that the testimony of James Jarrett and Jody Elliott and the deposition of the Respondent were admitted as part of the Respondent's case-in-chief, as well as being admitted on behalf of the Advocate and otherwise.  Therefore, this exception is accepted.

 

     3.  In his exception designated "II. 1.," the Respondent excepts to the portion of the Hearing Officer's finding of fact numbered "18," which reads: "Mr. Mooshie was, therefore, aware of OMC's plans to rezone the Dempsey Mayo Property when he assigned his interest in it.", arguing that the statement is not supported by competent substantial evidence.  The Hearing Officer's finding of fact excepted to is based upon competent substantial evidence under proceedings which did comply with essential requirements of law, including Advocate's Exhibits 12 and 14 (page 26); Stipulated Fact 17; and pages 49, 61, 62, 65, and 66 of the Hearing Transcript.  Therefore, this exception is rejected.

 

     4.  In his exception designated "II. 2.," the Respondent excepts to all of the Hearing Officer's finding of fact numbered "27," other than the second sentence of that finding, arguing that the finding is not supported by competent substantial evidence.  The Hearing Officer's findings excepted to are based on competent substantial evidence under proceedings which did comply with essential requirements of law, including Stipulated Facts 24 and 30; page 66 of the Transcript of the Hearing; and Advocate's Exhibit 12.  Therefore, this exception is rejected.

 

     5.  In his exception designated "II. 3.," the Respondent excepts to a portion of the Hearing Officer's finding of fact numbered "42," arguing that the same lacks adequate essential support.  The portion of finding of fact "42" excepted to reads:

 

          Mr. Mooshie was aware at the time that he

          agreed to assign his contract interest to OMC

          for $15,000.00 and at the time that he voted on

          OMC's rezoning application that OMC would have

          to rezone the property and develop it at a

          higher density in order to make it worth it to

          OMC to develop the property at all.

 

In this exception, the Respondent also takes exception to the Hearing Officer's finding of fact numbered "44," arguing that the finding lacks adequate evidential support.  The portion of  finding of fact "42" excepted to and fact "44" are based upon competent substantial evidence under proceedings which  did comply with essential requirements of law, including Stipulated Facts 3 and 14; and Advocate's Exhibits 12, 13, and 14 (pages 6, 9, and 13).  Nevertheless, even if the Respondent were not aware of OMC's financial condition and of whether it was "worth it" to OMC to develop the property, the Respondent was aware when he voted for the rezoning that rezoning would facilitate the payment of the $10,000 to him.  Therefore, this exception is rejected.  Further, finding of fact "44" is amended by the insertion of a comma after the last occurance of the word "be" in that finding of fact.

 

     6.  In his exception designated "III. 1.," the Respondent takes exception to "[m]ost of the conclusions [of law] on page 20 of the Recommended Order," arguing that the same are not supported by any competent substantial evidence.  In this exception the Respondent also takes exception to conclusions on pages "21" and "22" of the Recommended Order, essentially arguing that the same lack evidential support.  To the extent that the conclusions of law of the Hearing Officer contained in the Recommended Order are actually findings of fact, the same are supported by competent substantial evidence under proceedings which did comply with essential requirements of law.  Further, we find that the legal conclusions of the Hearing Officer contained in his Recommended Order are based upon sound reasoning and are consistent with a proper interpretation of relevant provisions of the Code of Ethics for Public Officers and Employees.  Therefore, this exception is rejected.

 

     7.  In his exception designated "III. 2.," the Respondent takes exception to the Hearing Officer's legal conclusions contained in section "D" of the Recommended Order in the same manner as he excepts to the conclusions contained on pages 20, 21, and 22 of the Recommended Order.  To the extent that the conclusions of law of the Hearing Officer contained in the Recommended Order are actually findings of fact, the same are based upon competent substantial evidence under proceedings which did comply with essential requirements of law.  Further, we find that the legal conclusions of the Hearing Officer contained in his Recommended Order are based upon sound reasoning and are consistent with a proper interpretation of relevant provisions of the Code of Ethics for public Officers and Employees.  Therefore, this exception 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 noted above.

 

CONCLUSIONS OF LAW

 

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

 

     2.  Accordingly, the Commission on Ethics finds that the Respondent, John S. Mooshie, as a member of the Tallahassee-Leon County Planning Commission, violated Sections 112.3143(2)(b) and 112.3143(3), Florida Statutes (1989), and that he did not violate Section 112.313(6), Florida Statutes (1989), as described herein.

 

RECOMMENDED PENALTY

 

     In consideration of the foregoing, pursuant to Sections 112.317 and 112.324, Florida Statutes, the Commission on Ethics recommends that the City Commission of the City of Tallahassee, Florida impose a civil penalty upon the Respondent, John S. Mooshie, in the amount of $2,000 for the violations of Section 112.3143(3), Florida Statutes (1989), and  no penalty fore the violation of Section 112.3143(2)(b), Florida Statutes (1989), for a total penalty of $2,000, to be paid within 30 days of the rendition of this Final Order and Public Report.  No penalty is imposed for the violation of Section 112.3143(2)(b) because that violation arose out of the same incident as the violation of Section 112.3143(3).  Thus, the exceptions of the Respondent addressing the penalty in this matter have been considered, and accepted and rejected to the extent noted above.

 

     ORDERED by the State of Florida Commission on Ethics meeting in public session on Thursday, October 15, 1992.

 

                           October 20, 1992

                           Date

 

 

                           _______________________________

                           Stephen N. Zack

                           Chairman

 

 

COPIES FURNISHED:

Ms. Claire A. Duchemin,

Attorney for Respondent

 

Ms. Virlindia Doss,

Commission Advocate

 

Mr. Paul D. Harvill,

Complainant Division of Administrative Hearings

 

 

NOTICE OF RIGHT TO JUDICIAL REVIEW

 

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.