STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE
HEARINGS
IN RE:
ROBERT ZAHNER, )
)
CASE
NO. 93-3909EC
Respondent. )
__________________________)
RECOMMENDED ORDER
Pursuant to notice, the Division of Administrative Hearings, by its duly
designated Hearing Officer, Susan B. Kirkland, held a formal hearing in this
case on March 9, 1994, in Miami, Florida.
APPEARANCES
Advocate: Virlindia Doss, Esquire
Department of Legal Affairs
The Capitol, PL-01
Tallahassee, Florida 32399-1050
For Respondent: Raoul G.
Cantero, Esquire
2601 South Bayshore Drive, Suite 1600
Miami, Florida 33133
STATEMENT OF THE ISSUES
Whether Respondent violated Section 112.313(4), Florida Statutes, and,
if so, what penalty should be imposed.
PRELIMINARY STATEMENT
On April 28, 1993, the State of Florida Commission on Ethics
(Commission) issued an Order Finding Probable Cause against Respondent, Robert
Zahner (Zahner), for violations of Section 112.313(4), Florida Statutes, for
accepting a complimentary membership in the Country Club of Coral Gables
(Country Club) and in the Coral Gables Executive Club (Executive Club), when he
knew or should have known it was given to influence his vote or official
actions. Zahner requested a public hearing,
and the case was forwarded to the Division of Administrative Hearings on July
14, 1993 for assignment to a hearing officer.
The case was originally assigned to Hearing Officer David Maloney but
was transferred to Hearing Officer Susan B. Kirkland. The case was scheduled for hearing on November 16, 1993, and on
November 10, 1993, the Advocate filed a Motion for Continuance. The motion was granted, and the hearing was
rescheduled for March 9, 1994.
The parties stipulated to the facts contained in Section "D"
of the parties' Prehearing Stipulations filed on March 4, 1994. At the final
hearing, the Advocate called one witness, Albert Sakolsky. Advocate's Exhibits 1-18 were admitted into
evidence. Advocate's Exhibits 1-12 were
also admitted into evidence in In Re:
James Barker, DOAH Case No. 93-3911EC and in In Re: Robert Hildreth, DOAH Case No. 93-3908EC. Respondent testified on his own behalf and
presented the testimony of Edwin Brownell, which was taken in Hildreth,
supra. Respondent's Exhibits 1-4 were
admitted into evidence.
The parties agreed to file the proposed recommended orders within ten
days of the filing of the transcript.
The transcript was filed on April 7, 1994. The parties timely filed their proposed recommended orders. The parties' proposed findings of fact are
addressed in the Appendix to this Recommended Order.
FINDINGS OF FACT
1. Respondent, Robert Zahner
(Zahner), has been the city attorney for the City of Coral Gables (City) since
1967.
2. The Country Club of Coral
Gables (Country Club) was established by City founder George Merrick, prior to
the City's incorporation. Since 1929,
the City which owns the land and buildings from which the Club operates, has
leased the property to private entities.
3. Since 1935, the lessee of the
property has been the Country Club, a non-profit corporation run by a board of
directors elected by the Country Club membership.
4. Between 1935 and 1958, the lease underwent various
modifications and extensions. In 1958,
the City Commission voted to extend the lease to July 31, 1990. Under the terms of the lease, the Country
Club paid three percent of its gross annual income, but in no case less than
$5,000 per year, to the City as rent.
5. In 1977, the Country Club
again came before the City Commission requesting a lease extension, this time
to the year 2002. There was no change
in the rent amount. The request for
extension was to allow the Country Club to borrow money for construction, and
the request was approved.
6. In 1978 the Country Club
asked the City Commission for rezoning so that it could expand its tennis
courts. This request was approved.
7. In May, 1980, the Country
Club asked the City Commission for a $23,000 loan to repair its roof. The City Attorney advised that the City
could not lawfully make such a loan, and no further action was taken on the
matter.
8. In 1981 the Country Club
asked to expand its tennis club facilities, and this request was approved.
9. In 1983 a significant portion
of the Country Club burned down.
10. A request by the Country
Club to support its efforts to raise funds from citizens for the Country Club,
was on the July 26, 1983, City Commission agenda, but was not taken up. A discussion of the status of the building
was held on that date, but no action was taken.
11. Instead of rebuilding the
burned section with the insurance money, the Country Club decided to construct
an already planned new section. On
November 22, 1983, representatives of the Country Club presented a plan for
restoration to the City Commission, which on motion of Commissioner Kerdyk
approved the plan.
12. On March 27, 1984, the City
Commission authorized the City Manager to sign an affidavit needed by the
Country Club to obtain a building permit.
13. In April 1984, the Country
Club requested extension of its lease to the year 2020. On motion of Commissioner Kerdyk, the City
Commission agreed to the extension.
14. In September 1984, the
Country Club asked that the lease be reworded in order to satisfy the lending
institutions from which the Country Club was borrowing money for
renovations. The request was approved.
15. When the Country Club
initially undertook its restoration and remodeling plan, the Country Club
leadership believed that there would be sufficient funds to accomplish both the
rebuilding and the new construction.
Cost overruns, diminishing membership, and other factors combined,
however, to leave the Country Club with a new section, an old, burned-out
section, and a significant debt. In
1987, the Country Club asked the City Commission to assist it, by contributing
funds or otherwise, in overcoming that debt.
16. On November 24, 1987, the
City Commission met and discussed the problem.
The only action taken was to invite the Country Club leadership to an up
coming City Commission meeting to discuss proposed improvements.
17. On January 26, 1988, the
City Commission met with the Board of Directors of the Country Club to discuss
the Country Club's request. The City
Commissioners were informed that the Country Club's rent payments had been
generating approximately $40,458.64 per year in income to the City. The Country Club vice-president proposed
that the City rebuild the outside shell of the building, at a cost of
$1,000,362 and the Country Club finance the remainder of the construction,
about $1,900,000. The City Attorney
advised that the City could not loan funds to the Country Club, because it was
a private club. However, he opined that
the City could participate in the rebuilding because it was the owner of the
property. Action was postponed until
the next meeting.
18. On February 3, 1988, the
Country Club made an offer to the City to increase its rent payment from three
percent to six percent, if the City would rebuild the shell.
19. The matter was raised at the
February 9, 1988, meeting of the City Commission. Mayor Corrigan proposed that the City finance the rebuilding, but
made no motion. Commissioner Wolff
proposed that the City obtain funds from the Sunshine State Governmental
Financing Commission and lend that money to the Country Club. The motion was seconded by Commissioner
Kerdyk, and ultimately the City Commission resolved to refer the matter to the
acting city manager to "work out financing without using taxpayer
dollars."
20. At the February 9 meeting,
discussion was had on the issue of whether the City Commissioners had conflicts
of interest, since they all had complimentary memberships to the Country
Club. Mr. Zahner, the City Attorney,
advised that they had no conflict. The issue of conflict of interest was again
raised in subsequent meetings.
21. Alternative proposals
identified by the City Manager for funding the Country Club's rebuilding were
discussed at the City Commission's March 8, 1988 meeting, but no action was
taken.
22. On June 30, 1988, the
Country Club proposed that the City forgive lease payments until the year 2000.
23. On August 30, 1988, the City
Commission voted to suspend the lease payments, with the funds going instead to
the maintenance and reconstruction of the facility.
24. Membership in the Country
Club is open to any person, provided they can pay the initiation fee and
membership dues.
25. At all times pertinent to
this proceeding, the initiation fee was $1,000, although it sometimes was
reduced to $500 during membership drives.
The annual fee was $750.
26. Membership entitles the
member and his or her family to use the swimming pool, health club, tennis
courts, and bar and restaurant. Members
must pay for their meals.
27. For more than twenty years
the Country Club traditionally has awarded memberships to city officials and
various other persons. The Country Club
bylaws provide for such memberships.
The bylaws provide for honorary memberships and complimentary
memberships. Only one honorary
membership has been given. The only
difference between what the Country Club calls a complimentary membership and
an honorary membership is the duration of the membership.
28. Complimentary memberships
run from year to year. Persons awarded
complimentary memberships include the City Commissioners, Mayor, City Manager,
Assistant City Managers, the City Clerk, City Attorney, Director of Public
Works, Finance Director, City Architect, Fire and Police Chief, the University
of Miami President, Football Coach, and Assistant Athletic Director, the Golf
Pro at the City golf course, and the editor of the local social magazine. The complimentary memberships are reviewed
each year and are not renewed after the recipient leaves his or her office.
29. The Coral Gables Executive
Club (Executive Club) is located in an office building at 550 Biltmore
Way. The building and the Executive
Club are owned by Albert Sakolsky, a local real estate developer.
30. The Executive Club, which
opened in the late 1980's, consists of a dining room and health club. Membership costs $700.00 initiation, and
$50.00 per month dues.
31. Mr. Sakolsky hired a public
relations firm to promote the Executive Club.
The firm recommended that complimentary memberships be given to
community leaders and developed a list of persons who would receive the
memberships. Over a hundred free
memberships were granted.
32. In February, 1989, Mr.
Sakolsky wrote to Coral Gables City Manager Jack Eads, presenting the City with
a "permanent corporate membership."
Although the letter appeared to infer that the use of the health
facilities would be free to those applying through the City's corporate
membership, the practice was to charge holders of complimentary memberships
such as Zahner $30 a month for the use of the health facilities if they desired
to use them.
33. With his letter, Mr.
Sakolsky included membership applications for all the City Commissioners, as
well as the Mayor the City Attorney, and Mr. Eads.
34. Mr. Sakolsky and the City
had had numerous disputes over the years on various issues. His presentation of the free corporate membership
was an effort to, in his words, "bury the hatchet."
35. A complimentary membership
entitled the member to use the dining facilities. Soon after its inception, the Executive Club was opened to the
public. The only privilege members
received over non-members was a discount on their meals. A non-member could be given a complimentary
membership after his first visit, thereby entitling him to receive a discount
on subsequent visits.
36. In September, 1989, the City
Commission voted to lease space in the 550 Building. The rental rate was $20
per square foot. When the lease
expired, the owner of the builder proposed a higher rate, which the City did
not accept. The City vacated the
building and rented space elsewhere.
37. Zahner has been a member of
the Country Club for more than 35 years and served as city attorney for the
City for 26 years.
38. Subsequent to his
appointment as city attorney, Mr. Zahner's membership was changed by the
Country Club to a complimentary membership.
39. Under the terms of the
complimentary membership, Zahner was not allowed to vote in Country Club elections
or hold an office in the Country Club, but continued to retain all the other
benefits he had been entitled to as a paying Country Club member.
40. Zahner paid for his
initiation fees to the Country Club, and paid his own dues until he became city
attorney.
41. Zahner used the Country Club
for meetings of the Tenth Holder's Club, which is a golf social club. In order to belong to the Tenth Holder's
Club, a person must also belong to the Country Club. About once a month, he went to dinner at the Country Club.
42. Zahner had always considered
the complimentary Country Club memberships honorary. As City Attorney, he advised several City Commissioners that
receiving the Country Club membership created no conflict and that the membership
did have to be reported on the financial disclosure forms.
43. Zahner has no vote on the
City Commission.
44. No vote concerning the
Country Club was pending before the City Commission when Zahner received his
complimentary membership.
45. Zahner was not involved in
negotiating or drafting the lease with the Country Club, or any of the
amendments to the lease; however, he did approve the amendments.
46. Zahner understood that the
complimentary memberships were a tradition in the City. He thought that the Country Club wanted more
members from the city. No one from the
Country Club ever asked him for any favors.
47. No vote regarding the
Executive Club was pending before the Commission at the time he was given the
membership. Zahner believed that the
complimentary membership was given to him to generate business for the
Executive Club. No one connected with
the Executive Club or the 550 Biltmore Building has ever asked Zahner for any
favors.
48. Zahner was not involved in
negotiating the lease with the 550 Biltmore Building; however, he did approve
the final draft.
CONCLUSIONS OF LAW
49. The Division of
Administrative Hearings has jurisdiction over the parties to and the subject matter
of this proceeding. Section 120.57(1),
Florida Statutes.
50. Section 112.322, Florida
Statutes, and Rule 34-5.0015, Florida Administrative Code, authorize the
Florida Commission on Ethics (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).
51. The burden of proof, absent
a statutory directive to the contrary, is on the party asserting the affirmative
of the issue of the proceeding.
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 349 (Fla. 1st DCA 1977). In
this proceeding it is the Commission, through the Advocate, that is asserting
the affirmative: that Zahner violated
Section 112.313(4), Florida Statutes.
Therefore the burden of establishing by a preponderance of the evidence
the elements of Zahner's alleged violations is on the Commission.
52. Section 112.313(4), Florida
Statutes, provides:
No public officer or employee of an agency or
his spouse or minor child shall, at any time,
accept any compensation, payment, or thing of
value when such public officer or employee
knows, or, with the exercise of reasonable
care, should know, that it was given to
influence a vote or other action in which the
officer or employee was expected to
participate in his official capacity.
53. In order to conclude that
Zahner violated Section 112.313(4), Florida Statutes, the Advocate must have
proved the following elements:
a. The
Respondent must have been a public
officer or
employee of an agency; and
b. The
Respondent (or his minor child) must
have accepted compensation, payment, or
something of value which was:
(1) Accepted
by the Respondent with
actual knowledge that the compensation,
payment or thing of value was given to
influence a vote or other action in which
Respondent was expected to participate in
his official capacity; or
(2) Accepted
by the Respondent when he
should have known (with the exercise of due
diligence) that the compensation, payment or
thing of value was given to influence a vote
or other action in which Respondent was
expected to participate in his official capacity.
54. The parties have stipulated
that Zahner was a public officer or employee subject to the Code of Ethic for
Public Officers and Employees.
55. Zahner received a
"thing of value" from the Country Club and from the Executive
Club. The annual fee for a membership
in the Country Club is $750. The initiation fee for the Executive Club was
$700, and the monthly dues were $50.00.
56. The Country Club membership
was given with the intent to influence official action in which Zahner was
expected to participate in his capacity as City Attorney. It was Zahner's job to provide legal advice
to the City Commission concerning issues that came before the City
Commission. The evidence clearly shows
that issues concerning the Country Club came before the City Commission several
times. Zahner had the responsibility to
approve the leases which the City Commission entered, including the amendments
to the Country Club lease. The Country
Club membership was given to Zahner because of his position as City
Attorney. The membership was given to Zahner on a year-to-year basis as long as
he held the position of City Attorney.
When Zahner's position as City Attorney ended so would his free membership to the Country Club.
57. The Executive Club corporate
membership was given to the City as a means of trying to "bury the
hatchet." In other words the owner
of the Executive Club, who was also the owner of the 550 Building, was trying
to generate favorable feelings on the part of City officials. As City Attorney, it was Zahner's
responsibility to provide legal advice to the City and to approve leases
entered into by the City, including the lease for space in the 550 Building.
58. The evidence shows that
Zahner should have known that the free membership to the Country Club was given
in an effort to influence him in his official actions. The issue of conflict of interest had been
raised at City Commission meetings concerning the free memberships being given
to the City officials and the fact that the Country Club was appearing before
the City Commission for help. As City
Attorney Zahner should have been aware of the applicable Ethics Commission
Opinions concerning the acceptance of such gifts. No reasonable person could believe that the free Country Club
membership was given to Zahner for any reason except to influence him.
59. The parties have stipulated
that the City's corporate membership to the Executive Club was an attempt by
Mr. Sakolsky to "bury the hatchet."
The membership was not for all city employees but only those designated,
which were the City Commissioners, the Mayor, the City Attorney, and the City
Manager. In other words, the
memberships were for persons who would be in a position to help Mr. Sakolsky.
As City Attorney, Zahner should have been aware of the applicable Ethics
Commission Opinions concerning the acceptance of gifts. No reasonable person
could believe that the free membership was given to Zahner for any reason
except to influence him.
RECOMMENDATION
Based on 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 Robert Zahner violated Section 112.313(4), Florida
Statutes, by accepting a free membership to the Coral Gables Country Club and
by accepting a free membership to the Executive Club. I therefore recommend a civil penalty of $1,000 and restitution of $750 for the violation
involving the Coral Gables Country Club and a civil penalty of $1,000 and
restitution of $600 for the violation involving the Executive Club for a total
penalty of $3,350. The restitution in
both cases is the amount a member of the general public would have had to pay
for one year's dues.
DONE AND ENTERED this 23rd day of May, 1994, in Tallahassee, Leon
County, Florida.
___________________________________
SUSAN B. KIRKLAND
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 23rd day of May, 1994.
APPENDIX TO RECOMMENDED
ORDER, CASE NO. 93-3911EC
To comply with the requirements of Section 120.59(2), Florida Statutes,
(1993), the following rulings are made on the parties' proposed findings of
fact:
Petitioner's Proposed Findings of Fact
1. Paragraphs 1-18: Accepted.
2. Paragraph 19: The first sentence is rejected as unnecessary. The remainder of the paragraph is accepted
in substance.
3. Paragraph 20: The first sentence is accepted. The second sentence is accepted in
substance.
4. Paragraph 21: Accepted.
5. Paragraph 22: The first sentence is accepted. The second sentence is accepted in
substance.
6. Paragraphs 23-26: Accepted.
7. Paragraph 27: Accepted in substance.
8. Paragraphs 28-33: Accepted.
9. Paragraph 34: The first sentence is rejected as constituting
a conclusion of law. The second sentence is accepted. The third sentence is rejected as constituting argument. The fourth sentence is accepted in substance.
10. Paragraphs 35-36: Rejected as constituting argument.
11. Paragraphs 37-40: Accepted.
12. Paragraph 41: The first and second sentences are accepted
in substance. The third sentence is
accepted in substance to the extent that the city officials who were receiving
complimentary memberships through the City's corporate membership could use the
health facilities for an additional fee of $30 per month but rejected to the extent
that it implies that the city officials could use the health facilities at no
cost.
13. Paragraphs 42-44: Accepted.
14. Paragraph 45: The first sentence is rejected as constituting
a conclusion of law. The second
sentence is accepted. The third
sentence is rejected as constituting argument.
15. Paragraphs 46-47: Rejected as constituting argument.
Respondent's Proposed Findings of
Fact
1. Paragraphs 1-4: Accepted.
2. Paragraph 5:
Rejected as subordinate to the facts actually found.
3. Paragraph 6: Rejected as unnecessary.
4. Paragraph 7: Accepted.
5. Paragraph 8:
The last sentence is rejected as unnecessary. The remainder of the paragraph is accepted.
6. Paragraphs 9-12: Accepted.
7. Paragraph 13: The last sentence is rejected as constituting
a conclusion of law. The remainder of
the paragraph is accepted in substance.
8. Paragraph 14: Accepted in substance.
9. Paragraphs 15-16: Accepted.
10 Paragraphs 17-19: Accepted in substance.
11. Paragraphs 20-21: Accepted.
12. Paragraphs 22-29: Accepted in substance.
COPIES FURNISHED:
Raoul G. Cantero, Esquire
Suite 1600
2601 South Bayshore Drive
Miami, Florida 33133
Virlindia Doss, Esquire
Department of Legal Affairs
The Capitol, PL-01
Tallahassee, Florida 32399-1050
Bonnie Williams
Executive Director
Florida Commission On Ethics
Post Office Drawer 15709
Tallahassee, Florida 32317-5709
Phil Claypool, Esquire
General Counsel
Ethics Commission
2822 Remington Green Circle, Suite
101
Post Office Drawer 15709
Tallahasee, Florida 32317-5709
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 ten 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.