STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

IN RE: OPAL RICE, )

) CASE NO. 92-5714EC

Respondent. )

___________________________________)

IN RE: BECKY THOMAS, )

) CASE NO. 92-5792EC

Respondent. )

___________________________________)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Mary Clark, conducted a formal public hearing in the above-styled cases on February 26, 1993, in Bunnell, Florida.

APPEARANCES

For the Ethics

Commission Advocate: Craig B. Willis, Esquire

Assistant Attorney General

Department of Legal Affairs

The Capitol, Suite 1502

Tallahassee, Florida 32399

For Respondent: Opal G. Rice

Post Office Box 696

Bunnell, Florida 32110

For Respondent: Becky Thomas

Post Office Box 756

Bunnell, Florida 32110

STATEMENT OF THE ISSUES

In separate cases arising out of the same incidents, the Florida Commission on Ethics found probable cause that Respondent Rice violated Section 112.3143(3), F.S. by voting in her official capacity on a measure which inured to her special private gain; that she violated Section 112.313(6), F.S. by having a memorandum of voting conflict falsified; and that Respondent Thomas violated Section 112.313(6), F.S. by falsifying a memorandum of voting conflict.

The issue, therefore, is whether those violations did occur, and if so, what penalty is appropriate.

PRELIMINARY STATEMENT

In September 1992, the separate cases were referred to the Division of Administrative Hearings for conduct of a public hearing. Shortly thereafter, they were consolidated and scheduled by the assigned hearing officer.

At the hearing, the Acting Advocate presented the testimony of the following: Opal Rice, Becky Thomas, Earl Rice, Clifford Allen Taylor and Robert Bott. Four exhibits, including two pages of city commission minutes and two memoranda of voting conflict forms, were received in evidence without objection.

The Respondents each testified in her own behalf and conducted cross examination of the witnesses.

The transcript was not filed, and the parties waived the filing of proposed recommended orders.

FINDINGS OF FACT

1. The incorporated municipality of Bunnell is a small community in Flagler County Florida.

Opal Rice was a Bunnell City Commissioner for eight consecutive years ending in March 1992.

Becky Thomas has been Bunnell City Clerk for "six years come June 1993". She is appointed annually by a majority vote of the City Commission.

2. Earl Rice, as "everyone in Bunnell knows", is Opal Rice's husband. Back in 1989 he owned six or eight contiguous residential lots in Bunnell. Since everything around them except the back was business, he felt they would be a "good place for a little business" and he applied to the city for rezoning. He felt the property value would be enhanced and wanted the flexibility of developing the lots either as residential or business.

3. The rezoning issue came before the commission for first reading on March 21, 1989. Mrs. Rice and three other commissioners voted for its approval, and one commissioner dissented, stating he felt the change was spot zoning.

4. The issue came up for second reading at the April 4, 1989 commission meeting. City Attorney Taylor was asked if the amendment to the zoning ordinance would be spot zoning, and he opined that it would not.

There was also some discussion about whether Mrs. Rice should sign a conflict of interest form. She said she did not think she had a conflict because the property was not in her name and she would not get a benefit. The City Clerk said she should file the form and Mrs. Rice agreed, just to be safe.

Mrs. Rice then participated in the vote and the rezoning was approved 4-1.

5. Sometime in 1991, a citizen came to the clerk's office and asked to see some records, including those related to the rezoning. Becky Thomas was on the phone and asked her to come back to pick them up later.

When Ms. Thomas pulled the records she realized that the voting conflict forms had not been filed.

6. In more recent months, Becky Thomas has become aware that the completion and filing of voting conflict forms is not her responsibility as Clerk, but rather is the responsibility of the individual commissioners.

But in 1991, she was chagrined at her oversight on Mrs. Rice's forms and immediately filled them out. Ms. Thomas then called Mrs. Rice and asked her to come sign them.

7. The two forms, styled "Form 8B Memorandum of Voting Conflict for County, Municipal and Other Local Public Officers", are comprised of two pages, including instructions.

8. Becky Thomas prepared the forms to cover the two occasions described above, the first and second readings. Next to the signature line is a line, "Date Filed". On that line Becky Thomas typed the dates the votes were taken: March 21, 1989 and April 4, 1989, thinking that those were the relevant dates.

Opal Rice signed each form on the space next to the dates.

9. Mrs. Rice is a retired school teacher. She and her husband receive separate retirement checks. They pay their expenses from a joint account.

10. Mrs. Rice believed that she was required to vote. During other meetings, she recalled, she heard other commissioners being told they had to vote and to file a notice of voting conflict later. She, herself, had previously filed voting conflict forms.

She was not certain when the forms were supposed to be filed, but acknowledged that the filing should be rather soon after the vote. At hearing, Mrs. Rice was not particularly familiar with the details on the forms she signed, and she admitted that she did not read the instructions.

Nor did she discuss the forms with Ms. Thomas. Although the dates next to her signature were not the dates she signed, she simply thought they were the dates the votes were taken.

11. The printed forms bear the date, 1-91; and the forms in use in 1989 are not in evidence. The printed instructions include a plain prohibition against elected officers voting on measures which inure to their special private gain. The instructions also require that a conflict must be disclosed and abstension explained prior to the vote being taken, and again after the vote by filing the form within fifteen days.

12. Clifford Allen Taylor has been Bunnell's City Attorney, part time, for seven years.

He was present for the second reading, but not the first. He has some recollection of the discussion of Commissioner Rice's possible conflict but he did not participate in the discussion. The law, as he understood it back then, was that the commissioner was required to vote and make a disclosure.

CONCLUSIONS OF LAW

13. The Division of Administrative Hearings has jurisdiction in this proceeding pursuant to Section 120.57(1), F.S. and Florida Commission on Ethics Rule 34-5.010, F.A.C.

14. Section 112.3143(3), F.S. provides in pertinent part:

(3) No county, municipal, or other local

public officer shall vote in his official

capacity upon any measure which inures to

his special private gain or shall knowingly

vote in his official capacity upon any measure

which inures to the special gain of any principal,

other than an agency as defined in s. 112.312(2),

by whom he is retained. Such public officer shall,

prior to the vote being taken, publicly state to

the assembly the nature of his interest in the matter

from which he is abstaining from voting and, within

15 days after the vote occurs, disclose the nature

of his interest as a public record in a memorandum

filed with the person responsible for recording the

minutes of the meeting, who shall incorporate the

memorandum in the minutes...

This language was added to the Code of Ethics for

Public Officers and Employees, Chapter 112, Part III,

in 1984. See Chapter 84-357, Section 2, Laws of

Florida. Prior to 1984, local public officers could

vote, but had to disclose their interest in a

memorandum.

15. As Bunnell City Commissioner, Opal Rice was a "public officer" as defined in Section 112.3143(1), F.S.

16. The Commission has found in the past that when a public official's spouse benefits from a vote, and that spouse contributes to the support of the public official, a vote which benefits the spouse also inures to the benefit of the public official. See CEO 83-29, CEO 83-59 and CEO 90-09.

Commissioner Rice violated Section 112.3143(3), F.S. by voting on the rezoning of her husband's property and by failing to file her memoranda of voting conflicts within the requisite fifteen days. The former violation was unwitting; the latter was inadvertent.

17. Section 112.313(6), F.S. provides:

(6) MISUSE OF PUBLIC POSITION.--No public officer

or employee of an agency shall corruptly use or

attempt to use his official position or any property

or resource which may be within his trust, or perform

his official duties, to secure a special privilege,

benefit, or exemption for himself or others. This

section shall not be construed to conflict with s.

104.31.

"Corruptly" is defined in Section 112.312(7), F.S. as:

. . .done with a wrongful intent and for the purpose

of obtaining, or compensating or receiving compensation

for, any benefit resulting from some act or omission of

a public servant which is inconsistent with the proper

performance of his public duties.

18. For a violation of 112.313(6), F.S., the benefit need not be an economic benefit. Garner v. State Comm. on Ethics, 439 So.2d 894 (Fla. 2nd DCA 1983).

However,

An essential element of the charged offense under Section 112.313(6) is the statutory requirement that appellant acted with wrongful intent, that is, that she acted with reasonable notice that her conduct was inconsistent with the proper performance of her public duties and would be a violation of the law or the code of ethics in part III of Chapter 112.

Blackburn v. State Comm. on Ethics, 589 So.2d 431, 434 (Fla. 1st DCA 1991)

The evidence in this proceeding is void of that wrongful intent by either Opal Rice or Becky Thomas. Mrs. Rice did not prevail upon the city employee to falsify the dates. Ms. Thomas erred, but the error was inadvertent and was not intended to benefit herself or Ms. Rice.

Penalty

19. In cases concerning a former public official whose violation occurred prior to leaving office, the Ethics Commission has the duty to report its findings and recommend appropriate action to the governing body of the applicable local government. Subsections 112.324(7)(c) and (h), F.S.

20. Subsection 112.317(d), F.S. provides for one or more of these penalties in cases involving former public officers: public censure and reprimand; a civil penalty not to exceed $5,000.00 and restitution of any pecuniary benefits received because of the violation committed.

21. The violations of Section 112.3143 committed by Opal Rice do not require intent or corrupt state of mind. Further, it is the duty of public officials to inform themselves of the laws affecting their governance. Still, the violations addressed here are mitigated by the fact that even the city attorney was misinformed of the requirements of Section 112.3143, F.S.

A nominal civil penalty is recommended. The city employees and officials are reminded of their opportunity described in Section 112.322(3)(a), F.S. to request advisory opinions from the Commission on Ethics, and they are urged to regularly participate in the myriad training sessions offered by Commission staff as described by the Acting Advocate at the close of the public hearing in this case.

RECOMMENDATION

Based on the foregoing, it is, hereby,

RECOMMENDED:

That the Commission on Ethics enter its final order and public report finding no violation of Section 112.313(6), F.S. by either Opal Rice or Becky Thomas; finding violations of Section 112.3143, F.S. by Opal Rice when she voted on rezoning her husband's property and neglected to file memoranda of the conflict within fifteen days; and recommending that a civil penalty be assessed in the amount of $100.00.

DONE AND RECOMMENDED this 26th day of March, 1993, in Tallahassee, Leon County, Florida.

___________________________________

MARY CLARK

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 26th day of March, 1993.

COPIES FURNISHED:

Craig Willis, Esquire

Assistant Attorney General

Department of Legal Affairs

The Capitol, Suite 1502

Tallahassee, Florida 32399

Opal Rice

Post Office Box 696

Bunnell, Florida 32110

Becky Thomas

Post Office Box 756

Bunnell, Florida 32110

Bonnie Williams

Executive Director

Ethics Commission

Post Office Box 6

Tallahassee, Florida 32302-0006

Phil Claypool

General Counsel

Ethics Commission

Post Office Box 6

Tallahassee, Florida 32302-0006

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 10 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.