STATE OF FLORIDA
DIVISION OF
ADMINISTRATIVE HEARINGS
In Re JOSEPH G. SPICOLA, )
)
Respondent, )
CASE
NO. 91-6730EC
)
COMPLAINT
NO. 91-4
_____________________________)
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 February 12, 1992, in Tampa, Florida.
APPEARANCES
The Advocate: Virlindia Doss
Assistant Attorney General
Department of Legal Affairs
The Capitol, Suite 101
Tallahassee, Florida 32399-1050
For Respondent: John R. Lawson,
Jr., Esquire
John A. Schaefer, Esquire
201 East Kennedy
Boulevard
Suite 1700
Post Office Box 1100
Tampa, Florida 33601
STATEMENT OF THE ISSUES
Whether the Respondent violated Section 112.313(3), Florida Statutes, by
purchasing, while an employee of the Tampa Port Authority, services from a law
firm in which he was a partner, and Section 112.313(7)(a), Florida Statutes, by
being a 50 percent partner in a law firm which was doing business with his
agency, the Tampa Port Authority?
PRELIMINARY STATEMENT
On or about December 28, 1990, a Complaint was filed with the Florida
Commission on Ethics (hereinafter referred to as the
"Commission"). The Complaint
was filed by Richard L. Murphy and contained allegations of misconduct by
Joseph G. Spicola, Jr., the Respondent in this case. Based upon a review of the Complaint against Mr. Spicola the
Commission issued a Determination of Investigative Jurisdiction and Order to Investigate
on April 10, 1991, ordering the staff of the Commission to conduct a
preliminary investigation into whether the Respondent violated Sections
112.313(3) and 112.313(7)(a), Florida Statutes.
Following the Commission's investigation of the allegations against Mr.
Spicola a Report of Investigation was released on May 23, 1991. Based upon the Complaint and the Report of
Investigation the Advocate for the Commission issued an Advocate's
Recommendation on June 17, 1991. The
Advocate determined that there was probable cause to believe that Mr. Spicola
had violated Sections 112.313(3) and 112.313(7)(a), Florida Statutes.
Based upon the Report of Investigation and the Advocate's
Recommendation, the Commission issued an Order Finding Probable Cause on
September 18, 1991, accepting the recommendation of the Advocate. The Commission ordered that a public hearing
be conducted.
By letter dated October 22, 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. Spicola be conducted by the Division of
Administrative Hearings.
Prior to the formal hearing the parties filed a Prehearing
Statement. The parties stipulated to
certain facts in the Prehearing Statement.
Those facts have been accepted in this Recommended Order and have been
identified as "Stipulated Facts".
At the formal hearing the Advocate presented the testimony of Emmett C.
Lee, Jr. The Advocate also offered ten
exhibits which were accepted into evidence.
Mr. Spicola testified in his own behalf and presented the testimony of
Robert Benjamin Hinkley and Joseph Garcia.
Mr. Spicola also offered eleven exhibits, marked as Respondent's
exhibits A-C, F-H and N-R. These
exhibits were accepted into evidence.
The parties have filed proposed recommended orders containing proposed
findings of fact. A ruling on each
proposed finding of fact has been made either directly or indirectly in this
Recommended Order or the proposed finding of fact has been accepted or rejected
in the Appendix which is attached hereto.
FINDINGS OF FACT
A. The Respondent's Professional
Experience.
1. The Respondent, Joseph G.
Spicola, Jr., has been an attorney since 1958.
2. Mr. Spicola has served as a
public defender, an elected state attorney, city attorney and as General
Counsel for former Florida Governor Bob Martinez.
3. Mr. Spicola also served as
the General Counsel for the Tampa Port Authority (hereinafter referred to as
the "Port Authority") as an employee from March 14, 1989, until
December 31, 1990. (Stipulated Fact).
4. Mr. Spicola, since January 1,
1991, to the present, has served as general counsel to the Port Authority as an
independent contractor. (Stipulated
Fact).
5. Between March 14, 1989, and
December 31, 1990, Mr. Spicola received a salary from the Port Authority in the
amount of $58,039.00. He also received
state health insurance and retirement benefits. (Stipulated Fact).
6. While Mr. Spicola was an
employee of the Port Authority he was subject to the Code of Ethics for Public
Officers and Employees, Part III of Chapter 112, Florida Statutes (hereinafter
referred to as the "Ethics Code").
B. The Practice of Mr. Spicola's
Predecessor.
7. Mr. Spicola's predecessor as
general counsel of the Port Authority, Terrell Sessums, was a salaried employee
and he participated in the Florida Retirement System.
8. In his capacity as general
counsel of the Port Authority, Mr. Sessums referred legal work to law firms and
other attorneys, including a law firm that Mr. Sessums owned an interest in,
MacFarlane, Ferguson, Allison & Kelly (hereinafter referred to as
"MacFarlane").
9. The practice of referring
legal work of the Port Authority to Mr. Sessums' law firm began in
approximately May, 1977. At that time
Mr. Sessums obtained approval from the Port Authority Board of Commissioners
(hereinafter referred to as the "Board"), to engage the services of
an associate of MacFarlane. The minutes
of the May 10, 1977, meeting of the Board reflect the following concerning the
authorization to use Mr. Sessums' law firm:
Tampa Port Authority vs. State of Florida. . . .
Because of the volume of work involved in
these various legal matters, in addition to
Port Authority routine legal matters, and in
view of the time element with regard to the
Uiterwyk suit, Mr. Berger told the Board that
he had, subject to Board confirmation,
authorized Mr. Sessums to associate Mr. David
Kerr of MacFarlane, Ferguson, Allison & Kelly
to represent the Authority in the Uiterwyk
Cold Storage suit against the Authority. The
charge for Mr. Kerr's services will be at
the rate of $50 per hour and $75 per hour for
court time, plus necessary and reasonable
costs, upon receipt of properly itemized
statements. . . .
Whereupon, it was moved by Mr. Simms, seconded
by Mr. Drawdy, and unanimously carried, the
Chairman stepping down to vote, to approve
the appointment of Mr. David Kerr of
MacFarlane, Ferguson, Allison & Kelly to
represent the Port Authority in the Uiterwyk
Cold Storage litigation.
Mr. Sessums also requested the Board's
approval to associate other attorneys,
including partners and associates of his own
law firm, when necessary and desirable, to be
paid at the rate of up to $50 per hour, plus
necessary and reasonable costs, subject to
receipt of properly itemized statements. Mr.
Sessums explained that he has from time to
time found it necessary to have the assistance
of some of his associates, who have been paid
for their services out of Mr. Sessums' income
from the Port Authority or other fees.
The Board approved Ms. Sessums'
request.
10. Approval of the use of
MacFarlane by Mr. Sessums for Port Authority work was also given at a September
9, 1980, meeting of the Board.
11. After 1978, when Emmett Lee
became Deputy Executive Director, Mr. Sessums kept Mr. Lee informed as to the
use of MacFarlane and other outside attorneys. Mr. Lee became Executive Director in 1980 and remained in that
position until 1990. The evidence
failed to prove the exact time when Mr. Sessums began informing Mr. Lee of his
use of outside attorneys or whether Mr. Sessums was informing anyone else before
he began informing Mr. Lee.
12. Mr. Lee discussed with Mr.
Sessums the need for back-up attorneys for Mr. Sessums apparently after Mr. Lee
became Executive Director. Mr. Sessums
suggested the use of an associate at MacFarlane. Mr. Lee included fees for the use of outside attorneys, including
attorney's from MacFarlane, in the Port Authority's budget each year, which the
Board approved.
13. Generally, Mr. Sessums kept
Mr. Lee informed of his use of MacFarlane and other law firms for Port Authority
work. After the September 9, 1990,
meeting of the Board, Mr. Sessums was specifically required to obtain
"prior approval of the Port Director" for any attorneys,
"including partners and associates of his own law firm". See Advocate's exhibit 7.
C. Mr. Spicola's Employment by
the Port Authority.
14. When Mr. Spicola first took
the position as general counsel of the Port Authority, he was advised by the
Port Authority Executive Director that Mr. Spicola might not be eligible to be
an "employee" of the Port Authority.
This concern was based upon a policy memorandum dated March 4, 1988,
from the Florida Department of Administration (hereinafter referred to as the
"DOA Memo"), which the Port Authority had received in 1988.
15. The DOA Memo was sent to
"All Florida Retirement System Reporting Units" and raised questions
about the eligibility of attorneys and consultants to participate in the
Florida Retirement System. A
questionnaire was attached to the DOA Memo which all professionals on contract
currently enrolled in the Florida Retirement System were requested to complete
and return to the Department of Administration.
16. Mr. Sessums completed one of
the questionnaires and filed it with the Department of Administration. Mr. Sessums continued to be treated as an
employee and participated in the Florida Retirement System.
17. Despite the fact that Mr.
Sessums was considered an "employee", Mr. Lee told Mr. Spicola that
he did not believe that Mr. Spicola could be an "employee" of the
Port Authority because of the DOA Memo.
Mr. Lee believed for some reason that Mr. Sessums had been
"grandfathered in".
18. Mr. Spicola told Mr. Lee
that he would handle the matter.
19. Mr. Spicola made inquiries
with the Department of Administration about his qualification as an
"employee". A letter was sent
to the Port Authority from the Department of Administration indicating that it
was up to the Port Authority to decide Mr. Spicola's status.
20. Mr. Spicola was provided by
Mr. Robert Hinkley, an employee of the Port Authority in finance and
accounting, with a DOA employee questionnaire and a copy of the questionnaire
that Mr. Sessums had filed with the Department of Administration.
21. Mr. Spicola or someone at
his request completed the DOA employee questionnaire and submitted it to the
Department of Administration. It
contained essentially the same information that Mr. Sessums had included on the
form he completed and filed. The form
was signed by "James Brown", the recently hired Director of
Administrative Service of the Port Authority.
22. The Department of
Administration sent a letter to the Port Authority indicating that Mr. Spicola
was an "employee" and was qualified to participate in the Florida
Retirement System.
23. Although the evidence proved
that Mr. Spicola desired to be an "employee", at least in part, so
that he could continue to participate in the Florida Retirement System, the evidence
failed to prove that he violated any ethics or other law, that he was not in
fact correctly classified as an "employee" or that his actions to
insure that he was treated as an "employee" are directly related to
the charges against him.
24. The evidence concerning Mr.
Spicola's actions in insuring that he was an "employee" does,
however, support a conclusion that Mr. Spicola should not only reap the
benefits of his treatment as an "employee" but must also suffer the
consequences of failing to conform his conduct to the rules governing the
actions of public employees.
D. Mr. Spicola's Referral of
Legal Work While Employed
by the Port Authority.
25. At the time Mr. Spicola
became general counsel for the Port Authority, he had a 50 percent ownership
interest in the law firm Spicola and Larkin, P.A., which he retained and
continues to hold at the present time.
(Stipulated Fact).
26. Between March 14, 1989, and
December 31, 1990, Mr. Spicola referred a number of legal matters to the
Spicola and Larkin, P.A., law firm.
(Stipulated Fact).
27. During the period of time
that Mr. Spicola was an employee of the Port Authority he referred legal
matters to Spicola and Larkin, P.A., for which Spicola and Larkin, P.A., were paid
approximately $70,695.89 in fees and costs.
28. The weight of the evidence
failed to prove that the fees and costs paid to Spicola and Larkin, P.A. while
Mr. Spicola was an employee of Port Authority were excessive or in any way
unearned. The weight of the evidence
also failed to prove that the Port Authority did not receive appropriate legal
services for the fees and costs it paid.
29. Unlike Mr. Sessums, Mr.
Spicola did not always attend Board meetings.
Instead, the Port Authority paid for the services of attorneys from
Spicola and Larkin, P.A., to attend Board meetings. The weight of the evidence, however, failed to prove that the
Port Authority failed to receive adequate services for the fees it paid or that
Mr. Spicola was avoiding work which he was being paid to provide.
30. The referral of legal work
by Mr. Spicola to Spicola and Larkin, P.A., between March 14, 1989, and
December 31, 1990, was a violation of Sections 112.313(3) and 112.313(7)(a),
Florida Statutes. Mr. Spicola has
acknowledged this violation and has only questioned the propriety and amount of
any penalty to be recommended.
31. At the time that Mr. Spicola
became an employee of the Port Authority, he was aware of the fact that his
predecessor, Mr. Sessums, used attorneys of MacFarlane and other firms for
business of the Port Authority.
32. Mr. Spicola did not obtain
specific approval from the Board to use attorneys from his law firm or other
firms to handle legal matters for the Port Authority. Mr. Spicola did not investigate or attempt to determine the steps
that Mr. Sessums took before using MacFarlane for Port Authority legal
work. Nor did Mr. Spicola inquire into
the legality of Mr. Sessums actions or his own actions.
33. There was no effort on the
part of Mr. Spicola to hide the fact that legal work of the Port Authority was
being referred to attorneys of Mr. Spicola's own law firm and other firms.
34. All bills for legal work
referred to Spicola and Larkin, P.A., were approved at public meetings by the
Board.
35. Although Mr. Spicola was not
specifically aware of the prohibitions of Sections 112.313(3) or 112.313(7)(a),
Florida Statutes, and there was some basis for relying to some extent upon the
actions of Mr. Sessums, Mr. Spicola should have looked into the matter to
insure that his actions (and his predecessor's) were not a violation of the
law. Based upon Mr. Spicola's
involvement in government, Mr. Spicola should have been less casual about the
actions he took which obviously involved the use of public funds for his own
benefit.
E. The Discovery of Mr.
Spicola's Error.
36. In October or November,
1990, Mr. Spicola first became aware that his referral of legal work was a
violation of the Ethics Code when questioned about the practice by a reporter
for the local newspaper.
37. Mr. Spicola telephoned the
former Chairman of the Commission to determine whether he had been violating
the Ethics Code. Mr. Spicola was
referred to counsel for the Commission.
38. Based upon his conversation
with the Commission, Mr. Spicola concluded that he had probably violated Ethics
Code, reported this conclusion to the Chairman of the Port Authority and
indicated that he would have to resign his employment.
39. At a December 31, 1990,
meeting of Board Mr. Spicola's status was changed from that of an
"employee" to that of an "independent contractor" effective
January 1, 1991.
40. In changing his status, Mr.
Spicola was no longer entitled to participate in the Florida Retirement System
because he was no longer an "employee." Mr. Spicola was, however, able to continue the referral of Port
Authority legal work to his law firm and other law firms because he is no
longer subject to the Ethics Code.
41. Mr. Spicola has continued to
refer Port Authority legal work to his law firm and other law firms since
becoming an independent contractor in the same manner that he referred such
work while he was an "employee" of the Port Authority.
CONCLUSIONS OF LAW
A. Jurisdiction.
42. 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).
B. Burden of Proof.
43. 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. Therefore, the burden of
proving the elements of Mr. Spicola's alleged violations was on the Commission.
C. The Charges Against Mr.
Spicola.
44. Mr. Spicola has been charge
with violating Sections 112.313(3) and 112.313(7)(a), Florida Statutes. Mr. Spicola has admitted that he committed both
violations. The evidence also supports
a conclusion that Mr. Spicola committed both violations.
Section 112.313(3), Florida Statutes,
provides:
(3) DOING BUSINESS WITH ONE'S AGENCY. No
employee of an agency acting in his official
capacity as a purchasing agent, or public
officer acting in his official capacity, shall
either directly or indirectly purchase, rent,
or lease any realty, goods, or services for
his own agency from any business entity of
which he or his spouse or child is an officer,
partner, director, or proprietor or in which
such officer or employee or his spouse or
child, or any combination of them, has a
material interest.
Nor shall a public officer
or employee, acting in a private capacity,
rent, lease, or sell any realty, goods, or
services to his own agency, if he is a state
officer or employee, or to any political
subdivision or any agency thereof, if he is
serving as an officer or employee of that
political subdivision.
The foregoing shall
not apply to district offices maintained by
legislators when such offices are located in
the legislator's place of business. This
subsection shall not affect or be construed
to prohibit contracts entered into prior to:
(a) October 1, 1975.
(b) Qualification for elective office.
(c) Appointment to public office.
(d) Beginning public employment.
45. Section 112.313(7)(a),
Florida Statutes, provides, in pertinent part, the following:
(7) CONFLICTING EMPLOYMENT OR CONTRACTUAL
RELATIONSHIP.
(a) No public officer or employee of an
agency shall have or hold any employment or
contractual relationship with any business
entity or any agency which is subject to the
regulation of, or is doing business with, an
agency of which he is an officer or employee,
excluding those organizations and their
officers who, when acting in their official
capacity, enter into or negotiate a collective
bargaining contract with the state or any
municipality, county, or other political
subdivision of the state; nor shall an officer
or employee of an agency have or hold any
employment or contractual relationship that
will create a continuing or frequently
recurring conflict between his private
interests and the performance of his public
duties or that would impede the full and
faithful discharge of his public duties.
46. Mr. Spicola does not dispute
that he violated both provisions. The
only issue remaining to be resolved in this matter is the penalty to be imposed
on Mr. Spicola for his admitted violations.
D. Penalty.
47. Section 112.317, Florida
Statutes, provides a wide range of penalties which the Commission may impose
upon an person who violates the Ethics Code, including violations of Sections
112.313(3) and 112.313(7)(a), Florida Statutes. In particular, Section 112.317, Florida Statutes, authorizes the
following pertinent penalties for an "employee":
. . . .
6. A civil
penalty not to exceed $5,000.
7. Restitution
of any pecuniary benefits
received because of the
violation committed.
8. Public
censure and reprimand.
48. The Advocate has argued that
a penalty of $2,000.00 per violation (a total of $4,000.00) and restitution in
the amount of $7,000.00 should be imposed by the Commission on Mr.
Spicola. Mr. Spicola has suggested that
he bear the costs of his defense of this action and that no additional
punishment be imposed. Neither party
has cited any authority concerning the appropriate penalty in a case such as this,
and neither proposal is recommended.
49. There are several reasons
why Mr. Spicola's recommended penalty should be rejected. First, no evidence was presented to support
a finding of fact as to what costs, if any, Mr. Spicola has or will incur as a
result of this proceeding. It cannot be
assumed without proof that any costs have been incurred or, if so, the amount
thereof.
50. Secondly, to impose no
penalty on Mr. Spicola would be tantamount to ignoring the fact that he
violated the Ethics Code.
51. Finally, and most
importantly, although the facts of this case may mitigate against the
imposition of the maximum penalty, the facts do not warrant the imposition of no
penalty by the Commission.
52. The following facts warrant
imposition of some penalty:
1. Mr. Spicola chose to be an
"employee" of the Port Authority.
Although Mr. Spicola could have referred the same work to his firm as an
independent contractor, he chose to be and was an employee rather than an
independent contractor.
2. 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 suggestion that his only error was in not reading
the Ethics Code trivializes the Ethics Code and ignores Mr. Spicola's 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. Mr. Spicola assumed too much.
53. Mr. Spicola suggests that he
merely followed the precedent set by Mr. Sessums. Although partially true, Mr. Spicola did not indicate that he
made any effort to determine what steps, if any, Mr. Sessums had taken to
insure that his referral of work which resulted in the expenditure of public
funds for the benefit of his law firm was not a violation of any law. Mr. Spicola merely assumed that it was okay.
54. That Mr. Spicola did not
intentionally violate the law or intend to harm the Port Authority does
militates against imposition of the maximum penalty available. The violations at issue do not require,
however, proof of any malicious or wrongful intent or harm to a public agency.
55. Mr. Spicola promptly took
steps to remedy the situation and has not attempted to dispute the charges
against him, which also militates to some extent against imposition of the
maximum penalty.
56. Taken as a whole, a penalty
of less than the maximum penalty should be imposed.
57. The amount of the civil
penalty recommended by the Advocate is reasonable. Although there are technically two violations, they are actually
duplicate characterizations of the same act.
A civil penalty of $4,000.00 (or $2,000.00 per violation) is reasonable.
58. The Advocate's
recommendation that restitution should be required, however, is rejected. The evidence in this case failed to prove
that the Port Authority did not receive full value for the services rendered to
it by Mr. Spicola's law firm or that Mr. Spicola's law firm was not otherwise
entitled to the fees and costs it was paid.
Therefore, restitution is not justified.
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, Joseph G. Spicola, violated Sections
112.313(3) and 112.313(7)(a), Florida Statutes, as alleged in Complaint No. 91-4,
and imposing a civil penalty of $4,000.00 on Mr. Spicola for such violations.
DONE and ENTERED this __24th__ day of March, 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 __24th__ day of March, 1992.
APPENDIX RECOMMENDED
ORDER
The parties have submitted proposed findings of fact. It has been noted below which proposed
findings of fact have been generally accepted and the paragraph number(s) in
the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have
been rejected and the reason for their rejection have also been noted.
The Advocate's Proposed
Findings of Fact
Proposed Finding Paragraph Number in
Recommended Order
of Fact Number of Acceptance or
Reason for Rejection
Section A:
1 3.
2 4.
3 5.
4 25.
5 1-2 and hereby accepted.
6 Not supported by the weight of the
evidence. But see 32 and 35.
Section B:
1-2 7
3 11.
4 8-13.
Section C:
1 26.
2 27.
3 30.
Section D:
1 Hereby accepted.
2 9.
3 10.
4 32 and 35.
5 See 12. Advocate's Exhibit 6 does not support this proposed finding of
fact. Advocate's Exhibit 6 is a copy of
the minutes of a meeting of the Board of May 10, 1977. Mr. Lee, the Port Authority Director who
testified he discussed the hiring of outside attorneys with Mr. Sessums did not
come to the Port Authority until 1978.
Mr. Lee did discuss the hiring of outside attorneys with Mr. Sessums but
the practice had already been approved by the Board when that discussion was
held.
6 See 11.
7 26-27 and hereby accepted.
8 Although true, the weight of the
evidence failed to prove the dispute between Mr. Spicola and Mr. Lee was
anything more than a philosophical dispute between the two men over their
respective areas of authority. The
matter was even discussed with the Chairman of the Board who agreed with Mr.
Spicola that the legal work of the Port Authority was Mr. Spicola's
responsibility. The evidence was
insufficient to conclude that Mr. Spicola's dispute with Mr. Lee was part of
any deliberate attempt to circumvent the Ethics Code.
9 See 9 and 10. The Board did not, however, approve every
outside attorney hired before the attorney was hired. The Board, in 1977 and again in 1980, gave Mr. Sessums the
general authority to make that decision and the Board ultimately approved the
expenditure of fees and costs to outside attorneys.
10 32 and 34.
11 Not supported by the weight of the
evidence.
12 29.
13 See 29.
14 See the discussion of finding of
fact 8 of Section D.
15 Hereby accepted.
Section E:
1 5.
2 14.
3 14 and 17.
4 18 and 22.
5 19.
6-7 Hereby accepted.
8 20.
9 21.
10 Not supported by the weight of the
evidence. At best Mr. Lee testified
that the information, based upon the work that Mr. Spicola eventually performed
for the Port Authority, was an "exaggeration." The evidence failed to prove that the
information on the questionnaire, at the time it was completed, was not
accurate.
11 21.
12 23.
13 Not supported by the weight of the
evidence. See 23-24.
The Respondent's
Proposed Findings of Fact
Proposed Finding Paragraph Number in
Recommended Order
of Fact Number of Acceptance or
Reason for Rejection
1 Hereby accepted.
2 3.
3 4.
4 25.
5 26.
6 3 and 6.
7-8 30.
9 36.
10 37.
11 38.
12 39.
13 9 and 31. But see 32 and 35.
14 See 41.
15 See the discussion of the
Advocate's proposed finding of fact 8 in Section D.
16 Not supported by the weight of the
evidence, except that the questionnaires did contain essentially the same
information.
17 Not supported by the weight of the
evidence. See 9-10 and 32-35.
18 Hereby accepted.
19 34.
20-25 Although generally true, these
proposed findings of fact have very little probative value. They have been considered, but have been
given little weight. Mr. Garcia was
only one of the members of the Board and cannot speak for the entire Board.
26 See 28. But see 33 and 35.
27 20.
28 21.
29 Hereby accepted.
30 11.
31 11-12.
32 Hereby accepted.
33 See the discussion of the
Advocate's proposed finding of fact 8 of Section D.
34 Hereby accepted.
COPIES FURNISHED:
Virlindia Doss
Assistant Attorney General
Department of Legal Affairs
The Capitol, Suite 101
Tallahassee, Florida 32399-1050
John R. Lawson, Jr., Esquire
Post Office Box 1100
Tampa, Florida 33601
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.