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.