STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

IN RE: DONALD PARKER, )

) CASE NO. 93-0314EC

Respondent. )

________________________________)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Mary Clark, held a formal hearing in the above-styled case on June 1, 1993, in Port St. Joe, Florida.

APPEARANCES

For the Ethics Virlindia Doss

Commission Advocate: Assistant Attorney General

Advocate for the Commission on Ethics

The Capitol, Suite 1601

Tallahassee, Florida 32399-1050

For Respondent: Donald B. Parker

HCO 1, Box 97

Port St. Joe, Florida 32456

STATEMENT OF THE ISSUES

On January 29, 1992, the Florida Commission on Ethics issued its Order Finding Probable Cause that Respondent violated section 112.3143(3), F.S. by voting to approve payment to C.W. Roberts Contracting Company for work done on a county road paving contract for which Capital Asphalt, Inc., his employer at the time the vote was taken, was a subcontractor.

The issue is whether that violation occurred and if so, what discipline or penalty is appropriate.

PRELIMINARY STATEMENT

On January 21, 1993 this case was referred by the Commission on Ethics to the Division of Administrative Hearings for conduct of a public hearing and a recommended order on the alleged violation of Chapter 112, F.S.

At the hearing the Advocate presented the testimony of the Respondent and the deposition testimony of C.W. Roberts. Without objection, these five exhibits were received into evidence as "Advocate's #1-5":

1) March 12, 1991 minutes of Gulf County

Board of County Commission;

2) Deposition of Charles Wesley Roberts, III;

3) Advertisement for Bids, project #134401

County Road C-30;

4) Subcontract dated October 1, 1990,

between C.W. Roberts Contracting, Inc.,

and Capital Asphalt, Inc.; and

5) Application #8, Application and

Certificate for Payment.

Respondent testified in his own behalf and presented no other witnesses nor exhibits at the hearing.

After the hearing, the Advocate submitted her proposed recommended order. Respondent presented a summary of his argument and several attachments from the Ethics Commission files.

These matters have been considered in the preparation of this order, and the findings of fact recommended by the Advocate are addressed in the attached appendix.

FINDINGS OF FACT

1. Donald B. Parker was elected to the Gulf County Board of County Commission in November 1988, and served until April 1991.

2. In 1990, Gulf County undertook improvements to county road C-30. It advertised for bids and awarded the contract to C.W. Roberts Contracting, Inc., the lowest bidder. The contract was entered in October 1990, and included resurfacing the road, replacement of culverts, installation of some guardrails and reworking the shoulders on the highway. Respondent Parker and the other commissioners reviewed the contract.

3. C.W. Roberts Contracting, Inc., subcontracted with Capital Asphalt, Inc., to produce the asphalt and place it on the roadway. The subcontract is dated October 1990.

4. On February 22, 1991, Respondent, Donald Parker, was hired by Capital Asphalt, Inc. to help get the company's operation set up in Gulf County. His tasks included answering the telephone, running errands, issuing chits for gas for the trucks, sending in company timesheets, and similar activities. He was a friend of Al Cross, the company owner's husband. Parker knew that the company was working on county road C-30 and was selling asphalt to C.W. Roberts. The company also had other customers for its asphalt.

5. Payments to C.W. Roberts by Gulf County on the C-30 project and other projects were made after tasks were completed and draws were approved by the road inspector. The commissioners approved payments to the contractor after reviewing the invoices.

6. Invoice or application for payment #8 for $14,158.88 was reviewed and approved by the Board of County Commissioners, upon motion of Respondent Parker, in the commission's regular session on March 12, 1991. This was one of several payments to C.W. Roberts approved on the county road and various other projects at the March 12th meeting.

7. Attached to application for payment #8 is a detailed breakout of the items for payment, including a request for $2,180.88 for 83.88 tons of FDOT SAHM CSE. This was material provided by Capital Asphalt to C.W. Roberts for the resurfacing of C-30. This fact can only be determined, however, from a review of the invoice, the contract with C.W. Roberts, and the subcontract with Capital Asphalt. Those three documents reveal that all of the material, FDOT SAHM CSE, 13,475 tons, required for the C.W. Roberts job on C-30, came from Capital Asphalt.

8. Respondent Parker testified credibly that he never saw the Capital Asphalt subcontract. He knew, of course, of the Gulf County contract with C.W. Roberts, and he knew that his temporary employer was providing material and work on that contract. He did not know that under the subcontract, payment by C.W. Roberts to Capital Asphalt was contingent upon C.W. Roberts being paid by the county. And, he did not know that the vote he took at the March 12th meeting was a vote for payment that would be passed on to Capital Asphalt.

9. Although Donald Parker had experience in finance, having been a loan officer in a finance company for twenty-eight years, his duties for Capital Asphalt described in this proceeding did not necessarily expose him to the financial dealings between this subcontractor and the county's contractor, C.W. Roberts. He was employed by Capital Asphalt for only two or three months, just long enough to include his vote at the March 12 commission session, but not long enough to become involved in the affairs of the company.

CONCLUSIONS OF LAW

10. The Division of Administrative Hearings has jurisdiction in this proceeding pursuant to section 120.57(1), F.S. and rules 34-5010 and 34-5.014, F.A.C.

11. As reflected in the order finding probable cause, the complaint and investigation in this case included allegations of other violations by Respondent related to leases of county property. Those allegations were dismissed, and any evidence presented by Respondent as to those violations is irrelevant. What is relevant is the single violation of section 112.3143(3), F.S. alleged in the order finding probable cause and described in the statement of issues, above.

12. Subsection 112.3143(3)(a), F.S. provides:

(3)(a) No county, municipal, or other local

public officer shall vote in his official

capacity upon any measure which would inure

to his special private gain; which he knows

would inure to the special private gain of

any principal by whom he is retained or to

the parent organization or subsidiary of a

corporate principal by which the is retained,

other than an agency as defined in section

112.312(2); or which he knows would inure to

the special private gain of a relative or

business associate of the public officer.

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.

(emphasis added)

13. The Advocate has the burden of proving the elements of the alleged violation by a preponderance of the evidence. In re Michael Langton, 14 FALR 4175 (1992).

14. It is uncontroverted that Respondent was a county public officer who voted on a measure which benefited his employer, and who failed to publicly disclose his interest and failed to file a memorandum disclosing his interest. Respondent contends, however, that he did not know the vote on March 12th involved payment that would benefit his temporary employer.

15. The greater weight of evidence is that Respondent's contention is correct, and the Advocate failed to prove the requisite knowledge. The invoice itself did not show a payment to Capital Asphalt. The benefit to this subcontractor was proven by the testimony of C.W. Roberts and from review of all the relevant documents. Respondent Parker did not see all of these documents prior to his vote. To find him guilty of a violation of section 112.3143(3), F.S. would require a conclusion that knowledge is imputed from his admission that he knew only that his employee was providing asphalt for the job. No authority for that conclusion is cited by the Advocate and none is found in reported prior commission orders.

RECOMMENDATION

Based on the foregoing, it is, hereby,

RECOMMENDED:

That the Commission on Ethics issue its final order and public report dismissing the complaint in this case.

DONE AND RECOMMENDED this 25th day of August, 1993, in Tallahassee, Leon County, Florida.

_________________________________

MARY CLARK

Hearing Officer

Division of Administrative Hearings

The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the

Division of Administrative Hearings

this 25th day of August, 1993.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-0314EC

The following constitute specific rulings on the findings of fact proposed by the Advocate:

1. Adopted in paragraph 1.

2.-5. Adopted in paragraph 2.

6. Adopted in paragraph 3.

7. Adopted in paragraph 5.

8.-9. Adopted in substance in paragraph 8.

10.-13. Adopted in paragraph 4.

14. Adopted in paragraph 9.

15. Adopted in paragraph 6.

16.-20. Adopted in paragraph 7.

21. Rejected as based on an assumption unsupported by

the weight of evidence.

COPIES FURNISHED:

Virlindia Doss

Assistant Attorney General

Advocate for the Commission

on Ethics

The Capitol, Suite 1601

Tallahassee, Florida 32399-1050

Donald Parker

HCO 1, Box 97

Port St. Joe, Florida 32456

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.