91-146 Recommended Order, In re ROBERT HILDRETH

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

IN RE: ROBERT HILDRETH )

) CASE NO. 93-3908EC

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 10, 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 Sections 112.313(4) and 112.3148(2), 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 Hildreth (Hildreth), for violation of Section 112.313(4), Florida Statutes, for accepting a complimentary membership in the Country Club of Coral Gables (Country Club) when he knew or should have known it was given to influence his vote or official actions and for violations of Section 112.3148(2), Florida Statutes, for failing to report a complimentary membership to the Country Club on his financial disclosure filing for the years 1989 and 1990. Hildreth 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 no witnesses. Advocate's Exhibits 1-16 were admitted into evidence. Advocate's Exhibits 1-12 were also admitted into evidence in In Re: Robert Zahner, DOAH Case No. 93-3909EC and in In Re: James Barker, DOAH Case No. 93-3911EC. Respondent testified on his own behalf and presented Robert Zahner and Edwin Brownell as witnesses. The testimony of Mr. Zahner and Mr. Brownell were also accepted as testimony presented in Zahner and Barker, 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, Robert Hildreth (Hildreth), was a city commissioner for the City of Coral Gables (City) from 1983 through 1993.

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 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. There is only one honorary member of the Country Club, a founding member who was also at one time mayor of the City. The difference between what the Country Club calls a complimentary membership and an honorary membership is the difference in the duration of the membership. A complimentary membership is given on a year-to-year basis and ends when the person no longer holds the position which entitled him to have the free 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. Hildreth has been a member of the Country Club since October 1, 1982, and was a member when he was elected to the City Commission in 1983.

30. Subsequent to his election, Hildreth's membership was changed by the Country Club to a complimentary membership.

31. Under the terms of the complimentary membership, Hildreth 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.

32. Hildreth understood that the complimentary memberships were a tradition in the City.

33. Hildreth did not report the Country Club membership as a gift on his 1989 or 1990 financial disclosure statements. He was told by the City Attorney, Robert Zahner, that the membership was not a gift and was not required to be reported. Hildreth relied on that advice in deciding not to report the membership on his financial disclosure form.

34. Hildreth used the Country Club for meetings of the Tenth Holer's Club, which is golf social club. In order to belong to the Tenth Holer's Club, a person must also belong to the Country Club. Hildreth also used the Country club eight times in ten years for dining purposes. He did not use the swimming pool, the workout room, the tennis courts, or the cardroom.

35. Hildreth paid his own initiation fees.

36. The County Court has dismissed criminal charges against Hildreth and two other members of the City Commission as well as City Attorney, Robert Zahner, concerning alleged violations of Section 2-11.1(e) of the Dade County Code. That section mirrors the provisions of Section 112.3148, Florida Statutes. Those cases are currently on appeal. The County Court refused to dismiss an identical charge against City Police Chief, Charles Skalaski.

CONCLUSIONS OF LAW

37. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding. Section 120.57(1), Florida Statutes.

38. 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).

39. 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 Hildreth violated Sections 112.313(4) and 112.3148(2), Florida Statutes. Therefore the burden of establishing by a preponderance of the evidence the elements of Hildreth's alleged violations is on the Commission.

40. 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.

41. In order to conclude that Hildreth 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 spouse or 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.

42. The parties have stipulated that Hildreth was a public officer or employee and therefore subject to the Code of Ethics for Public Officers and Employees.

43. Hildreth received a "thing of value" from the Country Club. The annual fee for a membership in the Country Club is $750. Hildreth used the country club facilities for dining and used his membership at the Country Club to qualify for membership in the Tenth Holer's Club.

44. The Country Club membership was given with the intent to influence official action in which Hildreth 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. The Country Club membership was given to Hildreth because of his position as City Commissioner. The membership was given to Hildreth on a year-to-year basis as long as he held the position of City Commissioner. When Hildreth's position as City Commissioner ended so did his free membership to the Country Club.

45. The evidence shows that Hildreth 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 fact that City Commissioners who were voting on issues concerning the Country Club were receiving free memberships to the Country Club. Hildreth should have known that there is "no free lunch." No reasonable person could believe that the free Country Club membership was given to Hildreth for any reason except to influence him.

46. Sections 112.3148(1)(c) and (2)(a), Florida Statutes (1989), provide as follows:

(1) When used in this section:

or payment of money the value of which is in

excess of $100 to any public officer or to

any other person on the public officer's

behalf. Any payment in excess of $100 to a

dinner, barbecue, fish fry, or other such

event shall likewise be deemed a

"contribution." However, a gift representing

an expression of sympathy and having no

material benefit or a bona fide gift to the

officeholder by a relative with the third

degree of consanguinity for the personal use of

the office holder shall not be deemed a

"contribution." This section does not apply to

complimentary parking privileges bestowed upon

any legislator by an airport authority, or to

honorary memberships in social, service, or

fraternal organizations presented to an elected

public officer merely as a courtesy by such

organization.

* * *

(2)(a) Each elected public officer and each

appointed public officer who is required by

law, pursuant to s. 8, Art. II of the State

Constitution, to file a full and public

disclosure of his financial interests shall

file a statement containing a list of all

contributions received by him or on his behalf,

if any, and expenditures from, or dispositions

made of, such contributions by such officer

which are not otherwise required to be reported

by chapter 106, with the names and addresses of

persons making such contributions or receiving

such payment or distribution from such

contributions and the dates thereof. The

statement shall be sworn to by the elected

public officer as being a true, accurate, and

total listing of all such contributions and

expenditures.

47. Hildreth's free membership to the Country Club was not an honorary membership and therefore was required to be reported on his financial disclosure statement. The Country Club bylaws make a distinction between a complimentary membership and an honorary membership. A complimentary membership is on a year-to-year basis and is based on a person's position. If the recipient no longer holds the position for which the membership was given the person is not entitled to a complimentary membership. The Country Club has only one honorary member. This person was a founding member of the Country Club and at one time had been Mayor of Coral Gables. It should be noted that although the former mayor is no longer serving as Mayor, he still is considered to have an honorary membership in the Country Club.

48. In CEO 89-40, the Ethics Commission opined that a membership to a social/dining club for which the initiation fees had been waived for a county property appraiser was not an honorary membership and should be disclosed pursuant to Section 112.3148, Florida Statutes.

49. Hildreth argues that the Advocate is collaterally estopped from contending that the Country Club membership is not an honorary membership because of the ruling in the County Court criminal action concerning a disclosure violation of the County Code. Such argument is without merit. See Florida Bar v. Musleh, 453 So.2d 794 (Fla. 1984), Walley v. Fla. Game and Fresh Water Fish Com'n, 501 So.2d 671 (Fla. 1st DCA 1987) and Todd v. Carroll, 347 So.2d 618 (Fla. 4th DCA 1977).

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 Hildreth violated Section 112.313(4), Florida Statutes, for accepting a free membership in the Coral Gables Country Club and Section 112.3148, Florida Statutes for failing to disclose the free membership in 1989 and 1990 on his financial disclosure statement. I recommend a civil penalty of $750 and restitution of $750 for violation of Section 112.313(4), and a civil penalty of $1.00 for each of the failure to report violations, for a total penalty of $1502. The civil penalty is mitigated for the Section 112.313(4) violation because of the advice which Hildreth received from the City Attorney concerning a conflict of interest. The civil penalties for each of the disclosure violations is mitigated by Hildreth's seeking advice from the City Attorney on whether the membership had to be disclosed and relying on the City Attorney's advice that the membership was honorary and did not have to be disclosed.

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 23th day of May, 1994.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-3908EC

To comply with the requirements of Section 120.59(2), Fla. Stat. (1991), 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. Paragraphs 28-33: Accepted.

9. Paragraphs 34-35: Rejected as unnecessary.

10. Paragraph 36: The first sentence is accepted. The remainder of the paragraph is accepted in substance.

11. Paragraph 37: Rejected as unnecessary.

12. Paragraphs 38-39: Accepted.

13. Paragraph 40: The first sentence is accepted. The remainder of the paragraph is rejected as constituting argument.

14. Paragraphs 41-42: Rejected as constituting argument.

Respondent's Proposed Findings of Fact.

1. Paragraphs 1-4: Accepted.

2. Paragraphs 5: Rejected as subordinate to the facts actually found.

3. Paragraph 6: Rejected as unnecessary.

4. Paragraphs 7-8: Accepted.

5. Paragraph 9: The first three sentences are accepted. The last sentence is rejected as unnecessary.

6. Paragraph 10-13: Accepted.

7. Paragraph 14: The first and third sentences are accepted in substance. The last sentence is rejected as constituting a conclusion of law. The remainder of the paragraph is rejected as not supported by the greater weight of the evidence.

8. Paragraph 15: Accepted in substance.

9. Paragraphs 16-17: Rejected as unnecessary.

10. Paragraph 18: Accepted.

11. Paragraph 19: The first two sentences are accepted. The last sentence is accepted in substance.

12. Paragraphs 20-23: Accepted in substance.

13. Paragraph 24: Accepted.

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.