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