BEFORE THE
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.
RECOMMENDED PENALTY
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.
____________________
Date Rendered
____________________
N. David Flagg
Acting Chairman
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