STATE OF FLORIDA
DIVISION OF
ADMINISTRATIVE HEARINGS
IN RE:
JAMES BARKER, )
) CASE
NO. 93-3911EC
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, James
Barker (Barker), 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. Barker 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
17, 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 presented the testimony of, Albert Sakolsky, which had
been presented in In Re: Robert Zahner, DOAH Case No. 93-3909EC. Advocate's Exhibits 1-16 were admitted into
evidence. Advocate's Exhibits 1-12 were
also admitted into evidence in In Re: Hildreth, DOAH Case No. 93-3908EC and
Zahner, supra. Respondent testified on
his own behalf and presented Robert Hildreth, Robert Zahner and Edwin Brownell
as witnesses. The testimony of Mr.
Hildreth, Mr. Zahner and Mr. Brownell were also accepted as testimony presented
in Zahner and Hildreth, supra.
Respondent's Exhibits 1-3 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, James Barker
(Barker), has been a city commissioner for the City of Coral Gables (City)
since 1989.
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 at 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. Occasionally Barker
would stop by the Country Club for cocktails or brunch.
27. For more than twenty years
the Country Club has traditionally 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 receive memberships. Over a hundred free memberships were
granted.
32. In February, 1989, Mr.
Sakolsky wrote to 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 change holders of complimentary memberships
such as Barker $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
pubic. The only privilege members
received over non-members was a discount on their meals. A non-member could be given a complimentary
membership after 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
building proposed a higher rate, which the City did not accept. The City vacated the building and rented
space elsewhere.
37. Barker has been a member of
the Country Club since 1986, and was a member when he was elected to the City
Commission in 1989. Barker's private
employment is in marketing.
38. Until he was elected to the
City Commission, Mr. Barker's employer paid his membership dues. Subsequent to
his election, Barker's membership was changed by the Country Club to a
complimentary membership.
39. Under the terms of the
complimentary membership, Barker 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. The Country Club dues were
paid by Barker's employer until Barker was elected to the City Commission.
41. Barker understood that the
complimentary memberships were a tradition in the City. No one from the Country Club ever asked him
for favors.
42. No vote concerning the
Country Club was pending before the City Commission when Barker received his
complimentary membership.
43. The only vote concerning the
Country Club in which Barker participated while a Country Club member was a
vote to postpone action.
44. No one from the Country Club
ever asked Barker for any favors.
45. No vote concerning the
Executive Club was pending before the City Commission when Barker received his
complimentary membership. Barker
thought that his membership to the Executive Club was a public relations
gesture. He viewed the Executive Club
not as a private club but as a restaurant.
Barker usually went to the Executive Club as someone else's guest.
46. Barker never voted on a
matter concerning the Executive Club.
47. The Executive Club and
Country Club memberships were given to a variety of private community leaders
as well as City officials.
48. Barker cancelled his
complimentary memberships when the State advised him of his position regarding
a conflict of interest.
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 Barker violated
Section 112.313(4), Florida Statutes.
Therefore the burden of establishing by a preponderance of the evidence
the elements of Barker'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
Barker 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 at all times pertinent to this
Complaint, Barker was a public officer or employee, and therefore subject to
the Code of Ethics for Public Officers and Employers.
55. Barker 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 Barker was
expected to participate in his capacity as City Commissioner. The evidence clearly shows that issues
concerning the Country Club came before the City Commission many times. As a City Commissioner Barker voted on at
least one Country Club issue and would be expected to vote on issues concerning
the Country Club that came before the City Commission. The Country Club membership was given to
Barker because of his position as City Commissioner. The membership was given to Barker as long as he held the
position of City Commissioner. When
Barker's position as City Commissioner 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
attempting to generate favorable feeings on the part of City officials. As City Commissioner, Barker was in a
position in which he could help should issues concerning Mr. Sakolsky come
before the City Commission.
58. The evidence shows that
Barker should have known that the free membership to the Country Club was given
in an effort to influence him in his official actions. Barker's private
employment is in marketing and he is aware of the use of contacts to open doors
for his company. Therefore he should have been aware of the value of good
relationship between the City Commission and the Country Club. The issue of conflict of interest had been
raised at City Commission meetings concerning the fact that City Commissioners
who were voting on issues concerning the Country Club were also receiving free
memberships to the Country Club. There
was some question in Barker's mind whether there was a conflict because he
sought advice from the City Attorney.
Barker should have known that there is "no free lunch." No reasonable person could believe that the
free Country Club membership was given to Barker 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. No reasonable person could
believe that the free Executive Club membership was given to Barker 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 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. I therefore recommend a civil penalty of $750 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 $3,100.
The civil penalty for the violation involving the Country Club is
mitigated due to the advice given to Barker by the City Attorney that there was
no conflict of interest. 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:
Advocate'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. Paragraph 28: Accepted.
9. Paragraph 29: The first sentence is accepted. The second
sentence is Rejected as unnecessary.
10. Paragraphs 30-34: Accepted.
11. Paragraph 35: The first sentence is Rejected as constituting
a Conclusion of Law. The remainder of the
paragraph is accepted in substance.
12. There is no paragraph 36.
13. Paragraphs 37-38: Rejected as constituting argument.
14. Paragraph 39: Accepted.
15. Second Paragraphs 38-39: Accepted.
16. Paragraph 40: Accepted.
17. 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 a 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.
18. Paragraphs 42-43: Accepted.
19. Paragraph 44: The first sentence is Rejected as constituting
a conclusion of law. The second sentence is Accepted. The third sentence is Rejected as constituting
argument.
20. Paragraphs 45-46: 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 as substance.
8. Paragraphs 14-15: Accepted in Substance.
9. Paragraph 16: Accepted.
10. Paragraph 17: Accepted in Substance.
11. Paragraph 18: Accepted.
12. Paragraphs 19-23: Accepted in Substance.
13. Paragraph 24-25: Accepted.
14. Paragraph 26-34: Accepted in Substance.
15. Paragraph 35: The first sentence is Accepted in Substance. The second sentence is Rejected as unnecessary.
16. Paragraph 36: Accepted.
17. Paragraph 37: 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.