STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

In Re JOHN S. MOOSHIE, )

)

Respondent, ) CASE NO. 91-7981EC

) COMPLAINT NO. 90-77

___________________________________)

RECOMMENDED ORDER

Pursuant to written notice, a formal hearing was held in this case before Larry J. Sartin, a duly designated Hearing Officer of the Division of Administrative Hearings, on July 10, 1992.

APPEARANCES

For Petitioner: Virlindia Doss

Assistant Attorney General

Department of Legal Affairs

The Capitol, Suite 1601

Tallahassee, Florida 32399-1050

For Respondent: Claire A. Duchemin, Esquire

DUCHEMIN & DUCHEMIN, P.A.

3837-B Killearn Court

Tallahassee, Florida 32308

STATEMENT OF THE ISSUES

Whether the Respondent, John S. Mooshie, violated Section 112.3143(2)(b), Florida Statutes (1989), by failing to file a written disclosure of interest after voting on a matter before the Planning Commission involving property of Ochlocknee Management Corporation, violated Section 112.3143(3), Florida Statutes (1989), by voting on the rezoning of that property and violated Section 112.313(6), Florida Statutes (1989), by using his position to benefit himself or another with respect to that property.

PRELIMINARY STATEMENT

On or about May 3, 1990, a Complaint against the Respondent, John S. Mooshie, was filed with the Florida Commission on Ethics (hereinafter referred to as the "Commission"). Based upon a review of the Complaint, the Commission issued a Determination of Investigative Jurisdiction and Order to Investigate on October 30, 1990, ordering the staff of the Commission to conduct a preliminary investigation into whether Mr. Witkowski violated Sections 112.3143(2)(b), 112.3143(3), 112.313(6), 112.313(7), and 112.313(8), Florida Statutes (1989).

Following the Commission's investigation of the allegations against Mr. Mooshie, a Report of Investigation was released on March 25, 1991. Based upon the Complaint and the Report of Investigation the Advocate issued an Advocate's Recommendation on May 6, 1991. The Advocate determined that there was probable cause to believe that Mr. Mooshie had violated Sections 112.313(6), 112.3143(2)(b), and 112.3143(3), Florida Statutes (1989). The Advocate also determined that there was no probable case to believe that Mr. Mooshie had violated Sections 112.313(7), 112.313(8), Florida Statutes (1989). Finally, the Advocate determined that there was no probable cause to believe that Mr. Mooshie had violated Section 112.313(6), Florida Statutes (1989), with regard to some of his alleged actions.

Based upon the Report of Investigation and the Advocate's Recommendation, the Commission issued an Order Finding Probable Cause on June 12, 1991. The Commission agreed with the Advocate's recommendation. The Commission ordered that a public hearing be conducted.

By letter dated December 11, 1991, the Commission referred this matter to the Division of Administrative Hearings and, in accordance with Rules 34-5.010 and 34-5.014, Florida Administrative Code, requested that the public hearing on the Complaint against Mr. Mooshie be conducted by the Division of Administrative Hearings.

Prior to the formal hearing the parties filed a pre-hearing statement containing stipulated findings of fact. Those facts have been accepted in this Recommended Order.

At the formal hearing the Advocate presented the testimony of Jody Elliott, James Jarrett and Elizabeth Palmer Gould. The Advocate also offered fifteen exhibits (including Mr. Mooshie's deposition testimony) which were accepted into evidence. Advocate's exhibits 1-7 involve a request for an advisory opinion arising out of some of the circumstances involved in this case. Those exhibits were relied upon only to the extent that Mr. Mooshie made statements, which may be considered as admissions against the interest of a party, to the Commission concerning the facts of this case.

Mr. Mooshie called no witnesses. Mr. Mooshie offered two exhibits which were accepted into evidence.

The parties stipulated that no transcript of the hearing would be ordered and that they would not file proposed recommended orders. Mr. Mooshie was given until July 17, 1992, to file any objections to his deposition testimony. On July 16, 1992, Mr. Mooshie indicated that he had no objections t his deposition testimony.

FINDINGS OF FACT

A. The Respondent.

1. The Respondent, John S. Mooshie, was appointed to the Tallahassee-Leon County Planning Commission (hereinafter referred to as the "Planning Commission"), in 1988. He resigned from the Planning Commission in 1990. Stipulated Fact 1.

2. At all times relevant to this proceeding, Mr. Mooshie served as a "public officer" subject to Sections 112.313(6) and 112.3143, Florida Statutes (1989).

3. Immediately prior to his service on the Planning Commission, Mr. Mooshie served on the Tallahassee-Leon County Board of Appeals and Adjustments, a body which heard requests for variances on city and county ordinances. Stipulated Fact 2.

4. Mr. Mooshie is a licensed real estate broker and has been for several years. Prior to and during his service on the Planning Commission, Mr. Mooshie owned or held substantial interests in companies involved in real estate brokerage, land development and billboard advertising. Mr. Mooshie continues to practice these occupations and additionally is in the business of buying and selling automobiles. Stipulated Fact 3.

B. James Jarrett and Ochlocknee Management

Corporation.

5. James Jarrett is a real estate broker and developer. Stipulated Fact 4.

6. Mr. Jarrett and Mr. Mooshie met in the 1970's and grew to know each other through their work in the advertising of the real estate business. Stipulated Fact 5.

7. In 1986, Mr. Jarrett, along with his wife and two other investors, formed Ochlocknee Management Corporation (hereinafter referred to as "OMC"). Mr. Jarrett served as Director of OMC until the first quarter of 1990. At that time, Mr. Jarrett left the employ of OMC. Mr. Jarrett still retains, however, an ownership interest in OMC. Stipulated Fact 7.

C. The Dempsey Mayo Road Property.

8. In 1984, Mr. Jarrett located a parcel of real estate located at Mayler and Dempsey Mayo Roads (hereinafter referred to as the "Dempsey Mayo Property"), which he thought would be suitable for development. Mr. Jarrett inquired several times of the property's owners--the Catholic Diocese of Pensacola-Tallahassee--whether it was interested in selling the property. The Catholic Diocese was not interested at the time, but indicated it may consider selling the property at a later date. Stipulated Fact 6.

9. At some point during 1986 or 1987, Mr. Jarrett mentioned several properties to Mr. Mooshie which he thought had good development or sales potential, but upon which he had not had time to follow-up. One of the properties he mentioned was the Dempsey Mayo Property. Stipulated Fact 8.

10. Either Mr. Jarrett suggested that Mr. Mooshie look into whether the Catholic Diocese would sell the Dempsey Mayo Property or Mr. Mooshie asked Mr. Jarrett if he would mind if Mr. Mooshie looked into the matter.

11. At some later point in time, Mr. Mooshie looked at the Dempsey Mayo Property and, after ascertaining that Mr. Jarrett had no objection, decided to pursue negotiations with the Catholic Diocese on purchasing the property. Stipulated Fact 9.

12. Mr. Mooshie did not undertake negotiations with the Catholic Diocese on behalf of OMC. Stipulated Fact 10.

D. The Purchase of the Dempsey Mayo Property.

13. On November 29, 1988, Mr. Mooshie entered into a contract to purchase the Dempsey Mayo Property from the Catholic Diocese. Stipulated Fact 11.

14. In December, 1988, Mr. Mooshie agreed to assign his contract for the purchase of the Dempsey Mayo Property to OMC for a total price of $15,000.00. Stipulated Fact 12.

15. The amount to be paid by OMC to Mr. Mooshie ($15,000.00) was arrived at as a result of negotiations between Mr. Jarrett and Mr. Mooshie. Stipulated Fact 13.

16. An assignment of contract document was drafted by Mr. Jarrett. In its original form, the assignment of contract document provided, in pertinent part, the following:

. . . John S. Mooshie will receive $5,000

at closing for the assignment of the

contract, and $10,000 when land is rezoned

and developed with anticipated completion

date of June 1989. [Emphasis added].

Stipulated Fact 14. The underlined portion of the assignment of contract was included by Mr. Jarrett. Stipulated Fact 15.

17. The underlined portion of the assignment of contract quoted in finding of fact 16 was struck with Mr. Jarrett's consent from the assignment of contract and replaced with the terms "not later than". As executed by Mr. Mooshie, the assignment of contract provided, in pertinent part:

. . . John S. Mooshie will receive $5,000

at closing for the assignment of the contract,

and $10,000 not later than June 1989.

[Emphasis added].

Stipulated Fact 18.

18. Mr. Mooshie objected to the original language of the assignment of contract because of his belief that, as a member of the Planning Commission, he could not agree to a contractual provision making payment contingent upon the rezoning of land which rezoning decision might come before him. Stipulated Fact 17. Mr. Mooshie was, therefore, aware of OMC's plans to rezone the Dempsey Mayo Property when he assigned his interest in it.

19. Mr. Mooshie executed the assignment of contract on December 23, 1988, in Mr. Jarrett's presence. Stipulated Fact 16.

20. At the time that Mr. Mooshie signed the assignment of contract, he had no first hand knowledge of OMC's financial status. Mr. Mooshie has never been an employee of OMC. Stipulated Fact 19.

E. Source of Financing for the Dempsey Mayo Property

Purchase.

21. OMC's two primary sources of funding for the Dempsey Mayo Property purchase and development were a construction loan (also known as the development loan) and sales. At the initiation of a project, there are few if any sales. Therefore, little cash is flowing into a project. That was the case with the Dempsey Mayo Property project. Stipulated Fact 20.

22. Mr. Mooshie and OMC negotiated for the split of the $15,000.00 assignment fee to be paid to Mr. Mooshie with $5,000.00 paid at closing and $10,000.00 by June, 1989, to allow OMC to generate cash from the project before making the second payment. Stipulated Fact 21.

F. Efforts to Develop the Dempsey Mayo Property.

23. On January 9, 1989, OMC closed on the Dempsey Mayo Property. Mr. Mooshie received $5,000.00 of the total assignment of contract price at closing. Stipulated Fact 22.

24. On March 27, 1989, OMC applied to the Planning Commission to rezone the subject property to allow a greater density of lots. Rezoning would have permitted an increase from 13 to 21 lots on the Dempsey Mayo Property. Stipulated Fact 23.

25. The Dempsey May Property could have been developed without the requested rezoning, but at the lower density. OMC anticipated that a greater profit could be made if the property were developed at the higher density which would be allowed by rezoning. Stipulated Fact 24.

26. After Mr. Mooshie assigned his interest in the Dempsey Mayo Property to OMC he had no conversations with anyone at OMC about plans for the property. Mr. Mooshie did not know an application for rezoning had been filed for the property until about four or five days before the first Planning Commission meeting at which the rezoning application was to be considered. Mr. Mooshie discovered the rezoning application had been filed when he received his meeting packet materials. Stipulated Fact 25.

27. It was never the intent of OMC to develop the Dempsey Mayo Property at its existing lower-density zoning. OMC intended to develop the property after it rezoned the property for higher-density development. Although Mr. Mooshie did not know when a rezoning application would be filed by OMC, Mr. Mooshie was aware that OMC would seek rezoning of the property when he assigned his interest in the property to OMC. This fact is based in part upon the fact that the original language of the assignment of contract document signed by Mr. Mooshie specifically mentioned the comtemplated rezoning of the property. This fact was understood by the parties when it was agreed that $15,000.00 was an appropriate amount to be paid to Mr. Mooshie for assignment of the contract for purchase of the Dempsey Mayo Property entered into by Mr. Mooshie.

28. OMC's rezoning application was addressed at two May, 1989 Planning Commission meetings. At the first of those meetings, Mr. Mooshie made a public disclosure that he had previously had an interest in the Dempsey Mayo Property but that he no longer had any such interest. Stipulated Fact 26.

29. There was strong opposition to the rezoning and development of the Dempsey Mayo Property by nearby landowners, including Elizabeth Palmer Gould. Stipulated Fact 27. All of the Planning Commission members, including Mr. Mooshie, were contacted by Ms. Gould as part of a neighborhood coalition which expressed opposition to the subdivision. Stipulated Fact 32.

30. The Planning Commission recommended that OMC's application for rezoning of the Dempsey Mayo Property be denied on a 4-2 vote at a May 10, 1989, meeting of the Planning Commission. Mr. Mooshie voted in favor of the rezoning application. Stipulated Fact 28.

31. Subsequent to voting on the rezoning request on May 10, 1989, Mr. Mooshie did not file any written disclosure of conflict memorandum, setting out his contractual relationship with OMC. Mr. Mooshie did not believe he had a conflict of interest. Stipulated Fact 29.

32. Prior to voting on the rezoning request on May 10, 1989, Mr. Mooshie did not disclose that he was to receive $10,000.00 from OMC no later than June 1989 for his assignment of contract for the purchase of the Dempsey Mayo Property.

G. Sale of the Dempsey Mayo Property.

33. Following denial of the rezoning application for the Dempsey Mayo Property, OMC began the process of developing the property at the less dense level permitted under the existing zoning. Stipulated Fact 30. Such development was also opposed by Ms. Gould and her neighbors. Stipulated Fact 31. There was little, if anything, that Ms. Gould and her neighbors could have done, however, to prevent development of the Dempsey Mayo Property at the existing zoning density.

34. Ms. Gould had expressed interest during the course of the rezoning application process and later development that she and/or her neighbors might be willing to purchase the Dempsey Mayo Property rather than see it developed. Stipulated Fact 33.

35. Subsequent to the denial of OMC's rezoning application, Mr. Mooshie telephoned Ms. Gould and indicated that OMC had told him they might be willing to sell the Dempsey Mayo Property for $148,467.00, rather than develop it. Stipulated Fact 34. This was the second time that Mr. Mooshie had indicated to Ms. Gould that OMC might be interested in selling the property.

36. Mr. Mooshie spoke to Ms. Gould about a sale of the Dempsey Mayo Property in his capacity as a member of the Planning Council.

37. The weight of the evidence failed to prove that Mr. Mooshie used his position as a member of the Planning Commission when he contacted Ms. Gould concerning a sale of the property to obtain a special privilege, benefit or exemption for himself or others.

38. The weight of the evidence failed to prove that Mr. Mooshie acted inconsistent with the proper performance of his public duties when he spoke to Ms. Gould about a sale of the property.

39. OMC subsequently contacted Ms. Gould and, after negotiations, sold the Dempsey Mayo Property to Ms. Gould and her husband on August 31, 1989. Stipulated Fact 35.

H. Final Payment to Mr. Mooshie.

40. Following the sale of the Dempsey Mayo Property by OMC, Mr. Mooshie agreed to take $4,000.00, rather than the $10,000.00 owed to him, as his final payment for his assignment of contract to OMC. Stipulated Fact 37.

41. Mr. Mooshie was paid the $4,000.00 by OMC on August 31, 1989. Stipulated Fact 36.

42. Mr. Mooshie indicated the following in response to questions asked of him by the Commission on Ethics concerning his decision to reduce OMC's obligation of $10,000.00 to him to $4,000.00:

. . . .

. . . I agreed to forego the June 30

deadline and remaining $6,000 balance once I

learned the property was to be sold rather

than developed.

. . . .

5) OMC had planned to develop the

property and expected to begin by June 30.

As the process unfolded, opposition to

development appeared. The reason I did not

receive the additional $10,000 prior to

June 30 was because a development loan had

not been obtained. The reason I did not

receive any money until August 31 was

because OMC did not have the money to pay

me. Finally, the reason I agreed to receive

only an additional $4,000 was [sic] rather

than the $10,000 was because OMC was only

making a small profit on the parcel and a

full $15,000 profit to me would have been

unreasonable to expect. [Emphasis added].

See Advocate's exhibits 4 and 5. These statements were made by Mr. Mooshie in an April 13, 1990, letter. Mr. Mooshie is a business man who has been involved in real estate and other business transactions for a number of years. Mr. Mooshie's experience and the statements quoted above support the conclusion that 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.

43. Although OMC may have been legally liable to Mr. Mooshie for the entire $10,000.00 outstanding balance of the assignment fee, Mr. Mooshie did not want to do anything which would jeopardize his long-standing business relationship with Mr. Jarrett. In a letter dated May 14, 1991 (Advocate's exhibit 13), Mr. Mooshie stated that the reason he accepted only $4,000.00 "was, simply, to maintain a good working business relationship with the people at OMC that could result in financial rewards of much greater proportions over the years."

44. Mr. Mooshie had to be aware when he voted for OMC's rezoning application what the ultimate consequences of the development, and, more importantly, the $10,000.00 owed to him by OMC would be if rezoning was not approved.

CONCLUSIONS OF LAW

A. Jurisdiction and Burden of Proof.

45. The Division of Administrative Hearings has jurisdiction of the parties to and the subject matter of this proceeding. Section 120.57(1), Florida Statutes (1991). Section 112.322, Florida Statutes, and Rule 34-5.0015, Florida Administrative Code, authorize the Commission to conduct investigations and make public reports on complaints concerning violations of Part III, Chapter 112, Florida Statutes (the "Code of Ethics for Public Officers and Employees").

46. The burden of proof, absent a statutory directive to the contrary, is on the party asserting the affirmative of the issue of the proceeding. Antel v. Department of Professional Regulation, 522 So.2d 1056 (Fla. 5th DCA 1988); Department of Transportation v. J.W.C. Co., Inc. 396 So.2d 778 (Fla. 1st DCA 1981); and Balino v. Department of Health and Rehabilitative Services, 348 So.2d 249 (Fla. 1st DCA 1977). In this proceeding it is the Commission, through the Advocate, that is asserting the affirmative: that Mr. Mooshie violated Sections 112.313(6), 112.3143(2)(b), and 112.3143(3), Florida Statutes (1989). Therefore, the burden of proving the elements of Mr. Mooshie's alleged violations was on the Commission.

47. The Commission has ruled that the standard of proof in cases before it require that the Commission prove its charges by a preponderance of the evidence. In Re Michael Langton, Complaint No 90-86 (Final Order, January 28, 1992). See also, In Re Leo C. Nicholas, 11 F.A.L.R. 5234 (1989).

B. Mr. Mooshie's Alleged Violation of Section

112.313(6), Florida Statutes.

48. Section 112.313(6), Florida Statutes (1989), provides, in pertinent part, the following:

(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. This section shall not be

construed to conflict with s. 104.31.

In order for it to be concluded that Mr. Mooshie violated Section 112.313(6), Florida Statutes (1989), proof of the following elements must be presented:

a. Mr. Mooshie must be either a public

officer or public employee;

b. Mr. Mooshie must have used, or attempted

to use, his official position or property or

resources within his trust, or performed his

official duties:

(1) Corruptly; and

(2) With an intent to secure a special

privilege, benefit or exemption for himself

or others.

49. The specific charge against Mr. Mooshie concerning his alleged violation of Section 112.313(6), Florida Statutes (1989), is that Mr. Mooshie's actions in facilitating the ultimate sale of the Dempsey Mayo Property (not his action in voting on OMC's rezoning application for the property), violated Section 112.313(6), Florida Statutes (1989). This conclusion is based upon the discussion of this alleged violation in the Advocate's Recommendation, the Commission's reliance on the Advocate's Recommendation in its Order Finding Probable Cause and the following statement of the Advocate's position in the Prehearing Stipulations:

Finally, the Respondent misused his

position as a Planning Commissioner by

facilitating the sale of the property to a

neighboring landowner after the rezoning

request was denied.

1. The First Element: Public Officer or Public

Employee.

50. Section 112.313(1), Florida Statutes (1989), defines the terms "public officer" to include "any person elected or appointed to hold office in any agency . . . ." An "agency" is defined in Section 112.312(2), Florida Statutes (1989), to mean "any state, regional, county, local, or municipal government entity of this state, whether executive, judicial, or legislative . . . ."

51. The evidence proved that Mr. Mooshie was appointed to serve on the Tallahassee-Leon County Planning Commission in 1988. Mr. Mooshie therefore, was a "public officer" for purposes of Section 112.313(6), Florida Statutes (1989).

2. The Second Element: Use of Official Position or

Property or Resources.

52. The second element of a violation of a Section 112.313(6), Florida Statutes (1989), has not been proved by the weight of the evidence.

53. The evidence did prove that, when Mr. Mooshie spoke to Ms. Gould about the possible sale of the Dempsey Mayo Property by OMC to her and others, he approached her as a result of his position as a member of the Planning Commission. Mr. Mooshie acted as a member of the Planning Commission. The evidence failed to prove, however, that Mr. Mooshie used his position as a member of the Planning Commission when he spoke to Ms. Gould to obtain a special privilege, benefit or exemption for himself or others. When Mr. Mooshie spoke to Ms. Gould the rezoning application of OMC had already been rejected. The potential for reduction in the $10,000.00 fee owed to Mr. Mooshie by OMC, discussed infra, had already been realized as a result of the inability of OMC to develop the Demsey Mayo Property at the higher density the rezoning would have allowed.

54. Once rezoning was denied, OMC could have developed the property under its existing zoning or, as ultimately occurred, OMC could have sold the property. Under either scenario, Mr. Mooshie could expect to be paid some part of the outstanding fee owed to him by OMC. The evidence failed to prove that by facilitating a sale of the property by OMC that the benefit to Mr. Mooshie was any greater than if the property had simply been developed under the property's existing zoning.

55. The evidence also failed to prove that any possible privilege, benefit or exemption that Mr. Mooshie sought when he spoke to Ms. Gould about a sale of the property was "corruptly" sought by him. The term "corruptly" is defined in Section 112.313(7), Florida Statutes, as follows:

(7) "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.

56. The evidence in this case failed to prove that Mr. Mooshie's actions in contacting Ms. Gould were intended by Mr. Mooshie to obtain any benefit as discussed, supra, or that his actions were "inconsistent with the proper performance of his public duties." Mr. Mooshie's contact with Ms. Gould took place after the rezoning application of OMC had been disposed of. No evidence was presented that would support a conclusion that it was improper for a member of the Planning Commission to contact a member of the public that had expressed interest in acquiring a parcel of real estate and arranging for that person to discuss such a purchase with the owner of the property after a rezoning application on the property is no longer before the Planning Commission.

C. Mr. Mooshie's Alleged Violation of Section

112.3143(2)(b), Florida Statutes.

57. Section 112.3143(2)(b), Florida Statutes (1989), provides, in pertinent part, the following:

(b) No appointed public officer shall

participate in any matter which inures to

his special private gain or the special gain

of any principal by whom he is retained,

without first disclosing the nature of his

interest in the matter. Such disclosure,

indicating the nature of the conflict, shall

be made in a written memorandum filed with

the person responsible for recording the

minutes of the meeting and shall be

incorporated in the minutes; if the

disclosure is initially made orally at a

meeting attended by the officer, the written

memorandum disclosing the nature of the

conflict shall be filed within 15 days with

the person responsible for recording the

minutes of the meeting and shall be

incorporated in the minutes. . . .

58. In order for it to be concluded that Mr. Mooshie violated Section 112.3143(2)(b), Florida Statutes (1989), proof of the following elements must be presented:

a. Mr. Mooshie must be an appointed public

officer;

b. Mr. Mooshie must have participated in a

matter that:

(1) Inured to his special private

gain; or

(2) Inured to the special gain of any

principal by whom he was retained; and

c. Mr. Mooshie must have participated in

the matter without first disclosing the

nature of his interest or without filing a

written memorandum of disclosure.

59. The specific charge against Mr. Mooshie concerning his alleged violation of Section 112.3143(2)(b), Florida Statutes (1989), is that Mr. Mooshie failed to file written disclosure of his interest in the Dempsey Mayo Property development after voting as a member of the Planning Commission on OMC's application for rezoning.

1. The First Element: Public Officer.

60. Section 112.3143(1), Florida Statutes (1989), defines the terms "public officer" as "any person elected or appointed to hold office in any agency, including any person serving on an advisory body." The evidence proved that Mr. Mooshie was a public officer for purposes of Section 112.3143(2)(b), Florida Statutes (1989).

2. The Second Element: Participation on a Matter

that Inured to Mr. Mooshie's Benefit or a

Principal Retaining Mr. Mooshie.

61. Section 112.3143(2)(b), Florida Statutes (1989), prohibits all appointed public officers from participating in matters which inure to their benefit or a principal retaining them unless the public officer discloses his or her interest prior to participating the matter and by memorandum after participating in the matter. If the required disclosure is made, the public officer may proceed to participate in the matter (unless Section 112.3143(3), Florida Statutes, applies to the public officer).

62. The weight of the evidence in this matter failed to prove that Mr. Mooshie participated in any matter that would inure to the benefit of any principal by whom Mr. Mooshie was retained.

63. The weight of the evidence did prove, however, that Mr. Mooshie participated on a matter (by voting on the rezoning application of OMC) from which he would directly benefit. Although OMC owed Mr. Mooshie the $10,000.00 fee outstanding for assigning his interest in the Dempsey Mayo Property to OMC without regard to how he voted on the rezoning application, the evidence supports a finding that Mr. Mooshie was aware at the time of the rezoning vote that the likelihood of his receiving the entire $10,000.00 fee was remote if the rezoning request was not approved.

64. Mr. Mooshie was aware that OMC intended from the beginning to rezone the property to a higher density of development. The original language of the assignment agreement specifically stated that the remaining $10,000.00 was contingent upon rezoning being obtained. Mr. Mooshie requested that this contingency be removed because he knew he would have to vote on the rezoning request and such a vote would clearly constitute a conflict of interest if his fee was expressly contingent upon obtaining approval of the rezoning.

65. Mr. Mooshie also knew that the amount OMC agreed to pay to him for the assignment of his interest in the Dempsey Mayo Property was based upon the higher profit OMC expected to realize from development of the Dempsey Mayo Property at the higher density.

66. Finally, Mr. Mooshie was aware that without approval of the contemplated rezoning that he would in all likelihood have to accept less than the outstanding $10,000.00 in order to maintain a good business relationship with OMC and Mr. Jarrett. Mr. Mooshie ultimately accepted only $4,000.00 of the $10,000.00 fee which he has argued was legally owed to him. He did so because the contemplated development of the Dempsey Mayo Property did not materialize when the rezoning request was denied and because Mr. Mooshie did not want to jeopardize his business relationship with OMC and Mr. Jarrett by insisting that the entire $10,000.00 fee be paid. It is unreasonable to believe that the Mr. Mooshie did not understand what ultimate consequences (a reduction of the outstanding fee) of the failure of the rezoning application to be approved would be until after the rezoning application had been disposed of.

67. Based upon the foregoing, it is concluded that the benefit to Mr. Mooshie for voting in favor of rezoning of the Dempsey Mayo Property was the enhancement of the possibility that the full outstanding $10,000.00 fee for his assignment of the property would be paid to him. Mr. Mooshie was, therefore, required by Section 112.3143(2)(b), Florida Statutes (1989), to disclose his interest in the matter before and after voting.

3. The Third Element: Did Mr. Mooshie Fail to

Disclose the Nature of His Interest in the

Matter?

68. The weight of the evidence proved that at the time when Mr. Mooshie voted on the rezoning application of OMC that he did not disclose the nature of his interest in the matter. Although Mr. Mooshie did disclose the fact that he had had a previous interest in the property, he failed to disclose the fact that OMC still owed him $10,000.00 as a result of the assignment of that interest or, more importantly, the negative impact that denial of the rezoning application would likely have on OMC's obligation to Mr. Mooshie.

69. Mr. Mooshie also failed to disclose his full interest in the rezoning application in writing at any time subsequent to the May, 1989, meeting of the Planning Commission at which the rezoning application of OMC was considered.

D. Mr. Mooshie's Alleged Violation of Section

112.3143(3), Florida Statutes.

70. Section 112.3143(3), Florida Statutes (1989), provides, in pertinent part, the following:

(3) No county, municipal, or other local

public officer shall vote in his official

capacity upon any measure which inures to

his special private gain or shall knowingly

vote in his official capacity upon any

measure which inures to the special gain of

any principal, other than an agency defined

in s. 112.312(2), by whom he is retained.

Such officer shall, prior to the vote being

taken, publicly state to the assembly the

nature of his interest in the matter from

which he is abstaining from voting and,

within 15 days after the vote occurs,

disclose the nature of his interest as a

public record in a memorandum filed with the

person responsible for recording the minutes

of the meeting, who shall incorporate the

memorandum in the minutes. . . .

71. In order for it to be concluded that Mr. Mooshie violated Section 112.3143(3), Florida Statutes (1989), proof of the following elements must be presented:

a. Mr. Mooshie must be either a county,

municipal, or other public officer;

b. Mr. Mooshie must have voted in his

official capacity upon any measure which:

(1) Inured to his special private

gain; or

(2) Which he knew would inure to the

special gain of any principal (other than a

Section 112.312(2) agency) by whom he was

retained; and/or

c. Mr. Mooshie failed to:

(1) Publicly disclose his interest

before the vote was taken; or

(2) File a memorandum disclosing his

interest within 15 days after the vote

occurs.

72. The specific charge against Mr. Mooshie concerning his alleged violation of Section 112.3143(3), Florida Statutes (1989), is that Mr. Mooshie actually voted on OMC's application for rezoning as a member of the Planning Commission.

1. The First Element: Public Officer.

73. Section 112.3143(1), Florida Statutes (1989), defines the terms "public officer" as "any person elected or appointed to hold office in any agency, including any person serving on an advisory body." The evidence proved that Mr. Mooshie was a county and/or municipal public officer for purposes of Section 112.3143(3), Florida Statutes (1989).

2. The Second Element: Participation on a Matter

that Inured to Mr. Mooshie's Benefit or

Knowingly to a Principal Retaining Mr. Mooshie.

74. Section 112.3143(3), Florida Statutes (1989), provides that if a public officer is a county, municipal, or other local public officer, the public officer may not vote on a matter which will inure to his or her benefit or which will knowingly benefit a principal retaining the public officer regardless of whether disclosure is made. Additionally, such county, municipal or other local public officers must also disclose their conflicting interest prior to abstaining from the vote and by memorandum after the vote.

75. For the same reasons discussed, supra, concerning Mr. Mooshie's violation of Section 112.3143(2)(b), Florida Statutes (1989), it is concluded that Mr. Mooshie did vote on a matter (the rezoning application of OMC) from which he would directly benefit.

76. The weight of the evidence failed to prove that Mr. Mooshie knowingly voted on any matter in his capacity as a member of the Planning Commission that would inure to the benefit of any principal by whom Mr. Mooshie was retained.

3. The Alternative Elements: Did Mr. Mooshie Fail to

Disclose the Nature of His Interest in the

Matter Prior to Voting and/or by Memorandum

within Fifteen Days after Voting?

77. In light of the fact that Mr. Mooshie did vote on a matter which would have inured to his benefit, it does not matter for purposes of Section 112.3143(3), Florida Statutes (1989), whether he disclosed his interest. Nor has Mr. Mooshie been charged with violating Section 112.3143(3), Florida Statutes (1989), solely because of his failure to disclose.

78. The weight of the evidence, however, did prove that at the time when Mr. Mooshie voted on the rezoning application of OMC that he did not disclose the nature of his interest in the matter. Although Mr. Mooshie did disclose the fact that he had had a previous interest in the property, he failed to disclose the fact that OMC still owed him $10,000.00 as a result of the assignment of that interest or, more importantly, the negative impact that denial of the rezoning application would have on OMC's obligation to Mr. Mooshie.

79. Mr. Mooshie also failed to disclose his full interest in the rezoning application in writing at any time subsequent to the May, 1989, meeting of the Planning Commission at which the rezoning application of OMC was considered.

E. Penalty.

80. Section 112.317, Florida Statutes (1989), provides penalties which may be imposed for a violation of the Code of Ethics for Public Officers and Employees. Section 112.317, Florida Statutes (1989), provides, in pertinent part, the following:

(1) Violation of any provision of this

part . . . shall, pursuant to applicable

constitutional and statutory procedures,

constitute grounds for, and may be punished

by, one or more of the following:

(a) In the case of a public officer:

. . . .

4. Public censure and reprimand.

. . . .

6. A civil penalty not exceed $5,000.

7. Restitution of any pecuniary benefits

received because of the violation committed.

. . . .

The Advocate, during closing argument, recommended that a civil penalty of $2,000.00 be imposed on Mr. Mooshie for each statutory violation.

81. The evidence has proved that Mr. Mooshie violated Sections 112.3143(2)(b) and 112.3143(3), Florida Statutes (1989). The evidence failed to prove, based upon the specific charges against Mr. Mooshie, that Mr. Mooshie violated Section 112.313(6), Florida Statutes (1989). Based upon the Advocate's reasonable recommendation of a $2,000.00 civil penalty per violation, a civil penalty of $4,000.00 should be imposed on Mr. Mooshie.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is

RECOMMENDED that the Commission on Ethics enter a Final Order and Public Report finding that the Respondent, John Mooshie, violated Sections 112.3143(2)(b) and 112.3143(3), Florida Statutes (1989), as alleged in Complaint No. 90-77. It is further

RECOMMENDED that the Commission find that the evidence failed to prove that Mr. Mooshie violated Section 112.313(6), Florida Statutes (1989), as alleged in Complaint No. 90-77. It is further

RECOMMENDED that Mr. Mooshie be required to pay a civil penalty of $4,000.00.

DONE and ENTERED this 19th day of August, 1992, in Tallahassee, Florida.

___________________________________

LARRY J. SARTIN

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 19th day of August, 1992.

COPIES FURNISHED TO:

Virlindia Doss

Assistant Attorney General

Department of Legal Affairs

The Capitol, Suite 101

Tallahassee, Florida 32399-1050

Claire A. Duchemin, Esquire

3837-B Killearn Court

Tallahassee, Florida 32308

Bonnie J. Williams

Executive Director

Commission on Ethics

The Capitol, Room 2105

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.