BEFORE THE
STATE OF FLORIDA
COMMISSION ON ETHICS
 
 
In re JOSEPH G. SPICOLA,
                                                            Complaint No. 91-4
        
Respondent.                                       DOAH Case No.  91-6730EC
_________________________/
 
 
FINAL ORDER AND PUBLIC
REPORT
 
    
This matter came before the Commission on Ethics on the Recommended
Order rendered in this matter on March 24, 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 Respondent violated Sections
112.313(3) and(7), Florida Statutes. 
Respondent filed exceptions to certain language employed by the Hearing
Officer in Part D of the Hearing Officer's Conclusions of Law, the
"Penalty" section, and to the amount of penalty he recommended.
 
    
Having reviewed the Recommended Order, the Respondent's exceptions, and
the record 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:
 
Findings of Fact
 
    
The Findings of Fact set forth in the Recommended Order are approved,
adopted, and incorporated herein.
 
Conclusions of Law
 
    
Paragraphs A, B and C of  the
Hearing Officer's recommended Conclusions of Law are approved, adopted, and
incorporated herein by reference.
 
Recommended Penalty
 
    
1.  Paragraph No. 2 of the
Hearing Officer's recitation of facts as set forth in Part D (Penalty) on page
15 of the Hearing Officer's Recommended Order is modified to read:
 
          Mr. Spicola 
is  an  attorney  who  has 
been
          involved  in
government service for many years.
          although he has been given the benefit  of 
the
          doubt  as to
whether he was actually aware that
          his actions violated the Ethics Code, he should
          have at least looked into the matter to be sure
          that his actions were not in violation  of 
any
          law.  Having been
involved in government for as
          long as Mr. Spicola has, he  should  have  been
          more 
circumspect  about  the 
actions  he took
          which obviously involved use of public funds to
          benefit 
himself.    Mr. Spicola's error
was in
          not reading the Ethics Code  and  ignoring  his
          responsibility 
as   a  public  servant  and the
          concerns which 
any   reasonable  person 
should
          have  about  the use of public funds for his or
          her benefit.
 
    
In making these changes, we note that the changes relate to the
Hearing  Officer's  editorialized comments, rather than to the
recommended penalty itself.  However,
the next two  paragraphs  on the top of page 16 of the Hearing
Officer's Recommended Order, which Respondent also has requested be changed,
shall remain the same and the Respondent's exceptions to the language employed
by the Hearing Officer in these two paragraphs are rejected.
 
    
2.  We reject the Hearing
Officer's rationale for declining to recommend that restitution be assessed
against Respondent as Section 112.317(1)(d)3., Florida Statutes, permits,
because we find that his rationale is incorrect as a matter of law.  Therefore, the last paragraph on page 16
shall be modified by striking the sentence at the bottom of page 16 and the top
of page 17 and inserting the following:
 
          In addition to 
any criminal penalty or other
          civil    
penalty    involved,     Section
          112.3l7(1)(d)3., 
Florida Statutes, among other
          things, permits the imposition  of  restitution
          against  the  public 
employee of any pecuniary
          benefits received 
because  of  the 
violation.
          However,  a review
of the record here indicates
          that there is insufficient evidence upon  which
          to   base  a 
determination  of  the 
pecuniary
          benefits received 
because  of  the 
violations
          committed;  
therefore,   no   restitution   is
          recommended.
 
    
3.  We also reject the Hearing
Officer's recommended  penalty and,
consequently, paragraphs Nos. 4 and  5
on page 16 of the Recommended Order.  We
find that the correct penalty in this case is a fine of $5,000 for each
violation for a total penalty of $10,000. 
This penalty is appropriate for the following reasons:
 
    
a)  Respondent is a lawyer of
substantial experience  
    
of more than 30 years, who sat at the right hand of the 
    
Governor as his chief legal advisor. 
For a year and a
    
half he repeatedly referred work to his own law 
    
firm,totaling approximately 
$71,000.  He argues that his
    
actions  should  be 
excused  because he did not read the
    
law.  This excuse is not
acceptable.  We believe that  we
    
should  be  governed 
by  our own precedent to the
extent
    
possible.  Recently the case of
In re Walter Stotesbury,
    
Complaint   No.  89-160, 
14  FALR  1017 
(1991),  aff'd,
    
Stotesbury v. State, Commission on Ethics, ___ So.2d  ___
    
(Fla.  1st  DCA 
1992)  (decided  March 
30,  1992),  was
    
affirmed by the First District Court 
of  Appeal without
    
opinion.    In  that 
case,  the Commission recommended
a
    
penalty of $5,000 for two 
isolated  instances  in 
which
    
Stotesbury,  a  member 
of  an  Airport  Authority, not a
    
lawyer with substantial experience of 30  years  or  more
    
sold  securities  to 
and did business with a fixed based
    
operator of the airport.  
Here,  the  Hearing 
Officer's
    
recommended  penalty  appears 
to  be  a mere slap on the
    
wrist for repeated transactions that occurred over a year 
    
and a half.
 
    
b)  We  also  believe  that 
a  penalty  that 
will be a
    
deterrence  to  others 
should  be  imposed  here.     An
    
increased  penalty of $10,000
will indicate that a public
    
employee/lawyer cannot 
refer  almost  $71,000 
worth  of
    
business  to  a 
law firm of which he owns a 50% interest
    
and receive only a relatively minor penalty in the amount
    
of $4,000.  Under these
circumstances, the $4,000 penalty
    
recommended by the Hearing Officer is not a deterrent; it
    
is tantamount to the "cost of doing business."
 
    
Accordingly,  the  Commission on Ethics, having found that the
Respondent, Joseph G. Spicola, 
violated  Sections  112.313(3) 
and 112.313(7),  Florida  Statutes, 
recommends that a civil penalty be imposed upon Respondent in the amount
of $10,000.
 
    
ORDERED by the State of Florida Commission on Ethics meeting in public
session on Friday, June 5, 1992.
 
                              June 11, 1992
                              Date Rendered
 
 
                              ____________________________
                              Dean Bunch
                              Chairman
 
 
YOU ARE NOTIFIED THAT YOU ARE
ENTITLED, PURSUANT TO SECTION 120.68, FLORIDA STATUTES, TO JUDICIAL REVIEW OF
AN ORDER WHICH ADVERSELY AFFECTS YOU. REVIEW PROCEEDINGS ARE COMMENCED BY
FILING A NOTICE OF ADMINISTRATIVE APPEAL WITH THE APPROPRIATE DISTRICT COURT OF
APPEAL, AND ARE CONDUCTED IN ACCORDANCE WITH THE FLORIDA RULES OF APPELLATE
PROCEDURE.  THE NOTICE OF ADMINISTRATIVE
APPEAL MUST BE FILED WITHIN 30 DAYS OF RENDITION OF THE ORDER TO BE REVIEWED.
 
 
cc: Mr. John R. Lawson, Attorney for
Respondent
   
Ms. Virlindia Doss, Commission Advocate
   
Mr.Richard L. Murphy, Complainant
   
Division of Administrative Hearings