STATE OF FLORIDA
COMMISSION OF ETHICS
In re: JAMES BARKER, )
) DOAH Case No. 93-3911EC
Respondent. ) Complaint No. 91-144
) Final Order No. COE 94-30
FINAL ORDER AND PUBLIC REPORT
This matter came before the Commission on Ethics on the Recommended Order rendered in this matter on May 23, 1994 by the Division of Administrative Hearings (DOAH) [a copy of which is attached and incorporated by reference]. The Hearing Officer recommends that the Commission enter a final order and public report finding that the Respondent 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. The Hearing Officer recommends further that a total penalty of $3,100 be entered against the Respondent.
The Respondent filed exceptions to the Recommended Order and the Advocate filed a response to the Respondent's exceptions. The Respondent takes exception to various portions of the Recommended Order. Each of the exceptions will be dealt with individually below.
Under Section 120.57(1)(b)10, Florida Statutes, an agency may reject or modify the conclusions of law and interpretations of administrative rules contained in the recommended order. However, the agency may not reject or modify findings of fact made by the Hearing Officer unless a review of the entire record demonstrates that the findings were not based on competent, substantial evidence or that the proceedings on which the findings were based did not comply with the essential requirements of law. See, e.g., Freeze v. Dept. of Business Regulation, 556 So.2d 1204 (Fla. 5th DCA 1990); and Florida Department of Corrections v. Bradley, 510 So.2d 1122 (Fla. 1st DCA 1987). Competent, substantial evidence has been defined by the Florida Supreme Court as such evidence as is "sufficiently relevant and material that a reasonable mind would accept it as adequate to support the conclusions reached." DeGroot v. Sheffield, 95 So.2d 912, 916 (Fla. 1957).
The agency may not reweigh the evidence, resolve conflicts therein, or judge the credibility of witnesses, because those are matters within the sole province of the hearing officer. Heifetz v. Dept. of Business Regulation, 475 So.2d 1277, 1281 (Fla. 1st DCA 1985). Consequently, if the record of the DOAH proceedings discloses any competent, substantial evidence to support a finding of fact made by the Hearing Officer, the Commission is bound by that finding.
Having reviewed the Recommended Order, the Respondent's exceptions, the Advocate's response to the Respondent's exceptions; and the record of the public hearing of this matter that has been placed before the Commission, and having considered the arguments of the Respondent and the Advocate made before the Commission at its final consideration of this matter, the Commission makes the following findings, conclusions, rulings, and recommendations:
Rulings on Respondent's Exceptions
1. The Respondent takes exception to the Hearing Officer's treatment of his proposed finding of fact 5, apparently arguing that such a finding should have been made on the basis of unrebutted testimony and that such a finding would have shown that the Respondent received nothing of value by virtue of his complimentary Country Club membership because he already received the privileges of membership from the City itself because he was a City official entitled, under the City's lease agreement regarding the Country Club, to enter the Club and dine at its restaurant. The Respondent's proposed finding 5 reads: "The lease provided for City officials to inspect the Country Club premises. In the opinion of at least one Country Club director, this right allowed City officials, including commissioners, to enter the Country Club and, if they desired, buy a meal at the restaurant." In the appendix to the Recommended Order, the Hearing Officer rejected this proposed finding as "subordinate to the facts actually found."
2. Under Section 120.57(1)(b)10, Florida Statutes, it is within the province of the Hearing Officer to reject or accept the testimony underlying a proposed finding of fact. Further, the Hearing Officer was free to weigh various and conflicting evidence presented in the matter and was free to draw from that evidence her factual view of the controversy, and the Hearing Officer's factual findings cannot be disturbed by our review unless they are not based upon competent, substantial evidence. The Hearing Officer cannot be faulted for believing that the membership bestowed value' upon the members and for rejecting the proposed finding (and in effect the testimony upon which the proposed finding was based) that the City's lease rights rendered the membership valueless to the Respondent. There is competent, substantial record evidence to support the Hearing Officer's determination that the membership privileges bestowed upon the Respondent by a private entity were a thing of value to the Respondent.
Therefore, this exception is rejected.
2. The Respondent takes exception to the Hearing Officer's treatment of his proposed finding of fact 6, arguing that the proposed finding shows that the Respondent received nothing from the complimentary membership that the City, did not already receive under the lease as the Country Club's landlord. The Hearing Officer rejected this proposed finding as "unnecessary." This proposed finding reads: "The lease also required' that the Country Club allow the City access to the Country Club, and allow the City to use the Country Club upon reasonable notice."
Even had this proposed finding been accepted, it would not conclusively establish that City use of Club property, premises, or facilities amounted to the Respondent's right to use the same, free of charge, in the manner in which he was entitled to use then as a complimentary member of the Club.
Therefore, for this reason and for the reasons set forth above in response to the previous exception, this exception is rejected.
3. The Respondent takes exception to what he refers to as the Hearing Officer's failure to include certain of his proposed findings in the Recommended Order. Other than the last sentence of finding 13, the Recommended Order accepted these proposed findings in substance. The last sentence of proposed finding 13 was rejected as constituting a conclusion of law [rather than a finding of fact].
Much, if not all, of the substance of these proposed findings is included in the body of the Recommended Order, although the phraseology may not be exactly the same as that proposed by the Respondent. Respondent's proposed finding 13 is included in paragraphs 27 and 28 of the Recommended Order; proposed finding 14 is included in paragraph 20 of the Recommended Order; proposed finding 17 is included in paragraphs 42 and 46 of the Recommended Order; proposed finding 19 is included in paragraph 41 of the Recommended Order; proposed finding 21 is included in paragraph 26 of the Recommended Order; proposed finding 26 is included in paragraph 31 of the Recommended Order; proposed finding 27 is included in paragraph 31 of the Recommended Order; proposed finding 31 is included in paragraph 45 of the Recommended Order; proposed finding 32 is included in paragraphs 41 and 45 of the Recommended Order; and the first sentence of proposed finding 35 is included in paragraph 45 of the Recommended Order.
Assuming that the last sentence of proposed finding 13 is a proposed finding of fact rather than a proposed conclusion of law, its rejection is within the province of the Hearing Officer; there is competent, substantial evidence of record to support the Hearing Officer's determination that the Country Club membership was given in order to influence official action.
Therefore, these exceptions are rejected.
4. The Respondent takes exception to the Hearing officer's use of the preponderance of the evidence standard in this matter rather than the clear and convincing evidence standard.
This exception is rejected. The Commission on Ethics has held that the preponderance of the evidence standard applies. Moreover, this matter does not involve revocation of a professional license (the loss of someone's livelihood) and therefore is not the type of administrative case in which the more stringent standard has been applied. See, e.g., In re MICHAEL E. LANGTON, 14 F.AL.R. 4175 (Fla. Comm. on Ethics 1992).
5. The Respondent takes exception to paragraph 55 of the Recommended Order, arguing that the Hearing Officer erroneously concluded that the Respondent received a "thing of value" from the Country Club and from the Executive Club because at the time the Respondent received the Country Club membership his private employer was paying his membership to the Country Club and the Executive Club membership had no value because the Executive Club was open to the public with members receiving nothing more than non-members.
This exception is rejected. The Country Club membership entitled the Respondent, not his private employer, to certain privileges, and no determination was made by the Hearing Officer that the private employer would have paid the membership for the Respondent for the years he held it by virtue of his official status. As to the Executive Club, the Hearing Officer found, and the record supports, that its membership had value.
6. The Respondent takes exception to paragraph 56 of the Recommended Order, arguing that the Hearing Officer should not have concluded that the Country Club membership was given to influence the Respondent's official actions because "[t]he undisputed evidence showed that it has been a tradition since the founding of the Country Club to offer complimentary memberships to community leaders." In support of this argument, the Respondent cites In re JAMES RESNICK, 14 F.A.L.R. 1002 (Fla. Comm. on Ethics 1991). In addition, the Respondent argues that this determination is in error because "[w]hile [the leaders receiving free memberships) included City officials, several persons not City officials also received complimentary memberships," and "because of the landlord/tenant relationship between the City and the Country Club, a unity of interests existed between them such that complimentary Memberships in the Country Club were not intended to influence official action."
Resnick is factually distinguishable from the instant batter. Moreover, a gratuitous practice having a history is not a defense to a charge involving Section 112.313(4), Florida Statutes. See In re WINSTON W. "BUD', GARDNER, 15 F.A.L.R. 2595, 2612 (Fla. Comm. on Ethics 1993). Further, the fact that the Club may have also been seeking to influence other community leaders who were not public officials does not mean that public official community leaders, including the Respondent, were not sought to be influenced. In addition, since it is obvious that the interests of a landlord and its tenant are not always the same, a tenant may very well seek to influence those with the power to make or influence decisions on behalf of the landlord, and the record in this matter shows that there were instances involving the City and the Country Club in which action or conduct by the City would have been of consequence to the Club.
Therefore, this exception is rejected.
7. The Respondent takes exception to paragraph 57 of the Recommended Order, arguing that the Hearing Officer erroneously concluded that the Respondent was given the Executive Club membership to influence his official actions because, as the Respondent argues, a public relations firm hired by the Club to promote the Club recommended that the Club issue complimentary memberships to VIPs in the City and that therefore "[n]o one at the Executive Club had anything to do with whom would be offered such memberships," and because "[n]inety percent of the free memberships were given to private individuals and groups."
Regardless of whether the public relations firm recommended the issuance of the free memberships, the Executive Club was the entity that issued then. Further, just because a person or business utilizes professionals or firms to facilitate its courses of action does not mean that the person or business is not in fact pursuing a particular course. Regarding the assertion that ninety percent of the free memberships were given to private recipients, see our response to the preceding exception.
Therefore, this exception is rejected.
8. The Respondent takes exception to paragraph 58 of the Recommended Order, arguing that the Hearing Officer erred in concluding that the Respondent should have known that the Country Club membership was given to influence his official action because since such memberships were traditional the Respondent merely assumed he was receiving a traditional honorary membership. In support of this argument the Respondent cites CEO 75-180 and CEO 89-40.
As stated in our rejection of an exception above, the fact that a gratuitous practice has a history or is traditional" is not a defense to a charge under Section 112.313(4), Florida Statutes. See Gardner, supra. CEO 75-180 is distinguishable from the instant matter because in that opinion there was no relationship between the country club providing the membership and the State University System, of which the recipient was a public official. The lack of a relationship or of potentially competing interests is not present in the instant matter. In CEO 89-40, the social club offering the free or reduced fee membership and the club member nominating the public official (a county property appraiser) for membership were merely property owners within the county, as were many, many other persons and entities, and there was not a landlord/tenant relationship as in the instant matter wherein issues involving potentially competing interests were actually addressed and subject to influence. Further, the Respondent's harboring of a subjective question in his mind as to whether his acceptance of the Country Club membership was an ethical conflict is not determinative of the objective constructive knowledge element of an offense under Section 112.313(4).
9. The Respondent takes exception to paragraph 59 of the Recommended Order, arguing that the Hearing Officer erroneously concluded that the Respondent should have known that the Executive Club membership was given to influence his official action, because "[t]he undisputed evidence, which the hearing officer accepted as a finding of fact, showed that Respondent questioned the City Attorney about the free memberships in the Executive Club, and the City Attorney confirmed that it really was not a private club and the free memberships were given as a public relations gesture," and therefore the Respondent's understanding that the Executive Club was basically a restaurant was reasonable.
This exception is rejected. The Respondent's subjective thoughts and beliefs are not controlling here; the statute also
addresses the constructive knowledge that the Respondent should have been aware of under the circumstances of this case--circumstances indicating that the membership was given to influence official action. The City Attorney's assessment is only one circumstance or factor bearing on whether the Respondent should have known that the Executive Club membership was given to influence him regarding his official duties, and the City Attorney's assessment was less than detached legal advice in that the Attorney himself was receiving the same Executive Club membership. The objective facts showing the relationship between the City and the Executive Club and the Respondent's role and responsibility regarding City/Club affairs on behalf of the City are sufficient to prove the constructive knowledge element of this charge.
10. The Respondent takes exception to the Hearing Officer's recommendation that the Commission find that the Respondent violated Section 112.313(4) in regard to the Coral Gables Country Club and in regard to the Executive Club. Further, the Respondent argues that if a penalty is recommended by the Commission it should reduced from that recommended by the Hearing Officer due to several mitigating factors.
The exceptions to the penalty recommendations of the Hearing Officer are accepted as specified below.
FINDINGS OF FACT
The Findings of Fact set forth in the Recommended Order are approved, adopted, and incorporated herein by reference.
CONCLUSIONS OF LAW
1. The Conclusions of Law set forth in the Recommended Order are approved, adopted, and incorporated herein by reference.
2. The Commission finds that the Respondent, James Barker, 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.
Therefore, the Commission on Ethics hereby recommends that restitution of $750.00 (seven hundred fifty dollars) be imposed upon the Respondent for the violation of Section 112.313(4), Florida Statutes, involving the Coral Gables Country Club and that restitution of $700.00 (seven hundred dollars) be imposed upon the Respondent for the violation of Section 112.313(4), Florida Statutes, involving the Executive Club, for a total of $1,450.00 (one thousand four hundred fifty dollars). The civil penalties recommended by the Hearing Officer are mitigated because the Respondent received the complimentary Country Club membership only for a relatively short period of time, because the Respondent sought and relied on the advice of the City Attorney regarding the nature of his complimentary membership in the Country Club, and because the value of the Executive Club membership may have become minimal. The restitution involving the Executive Club is changed from $600 to $700 ($700 being the amount of the Executive Club's initiation costs, see paragraph 30 of the Recommended Order).
ORDERED by the State of Florida Commission on Ethics meeting in public session on Thursday, July 14, 1994.
N. David Flagg
THIS ORDER CONSTITUTES FINAL AGENCY ACTION. ANY PARTY WHO IS ADVERSELY AFFECTED BY THIS ORDER HAS THE RIGHT TO SEEK JUDICIAL REVIEW UNDER SECTION 120.68, FLORIDA STATUTES, BY FILING A NOTICE OF ADMINISTRATIVE APPEAL PURSUANT TO RULE 9.110, FLORIDA RULES OF APPELLATE PROCEDURE, WITH THE CLERK OF THE COMMISSION ON ETHICS, 2822 REMINGTON GREEN CIRCLE, SUITE 101, TALLAHASSEE, FLORIDA 32308; OR P. O. DRAWER 15709, TALLAHASSEE, FLORIDA 32317-5709; AND BY FILING A COPY OF THE NOTICE OF APPEAL ACCOMPANIED BY THE APPLICABLE FILING FEES WITH THE APPROPRIATE DISTRICT COURT OF APPEAL. THE NOTICE OF ADMINISTRATIVE APPEAL MUST BE FILED WITHIN 30 DAYS OF THE DATE THIS ORDER IS RENDERED.
cc: Mr. Raoul G. Cantero, III, Attorney for Respondent
Ms. Virlindia Doss, Commission Advocate
Mr. Joseph M. Centorino, Complainant
Division of Administrative Hearings