BEFORE
THE
STATE
OF FLORIDA
COMMISSION
ON ETHICS
In re
PAUL MUNIZ, )
Respondent. )
Complaint No. 91-48
)
DOAH
Case No. 93-5806EC
)
Final
Order No. COE ____
_________________________)
This matter came before the Commission on
Ethics on the Recommended Order rendered in this matter on October 31, 1994 by
the Division of Administrative Hearings' Hearing Officer (a copy of which is
attached and incorporated herein by reference). The Hearing Officer recommends that the Commission issue its
public report and final order finding that Respondent violated Section
112.3143(2)(b), Florida Statutes (1989), both by participating in two
disciplinary cases before the City of Cape Coral Contractors' Regulatory Board
against David Tracey and Tracey Construction, with whom Respondent's air
conditioning company had several area contracts, without disclosing his
relationship with David Tracey and Tracey Construction prior participating in
the cases and by failing to file a memorandum disclosing the nature of his
conflict within 15 days of the meeting at which his participation occurred, and
violated Section 112.3143(3), Florida Statutes (1989), by failing to abstain
from voting on the two disciplinary cases involving Tracey Construction. She also recommends the imposition of a
civil penalty of $750 for each violation (a total of $1500), and the issuance
of a public censure and reprimand. The
Respondent filed his exceptions on November 18, 1994. The Commission Advocate filed his Response to Respondent's
Exceptions on December 22, 1994.
Having reviewed the Recommended Order, the
Respondent's Exceptions, the Commission Advocate's Response, and the record of
the public hearing of this complaint, and having heard arguments of counsel for
the Respondent and the Commission Advocate, the Commission makes the following
findings, conclusions, and recommendations:
STANDARDS FOR
REVIEW
Under Section 120.57(1)(b)10, Florida
Statutes, an agency may reject or modify the conclusions of law and
interpretations of administrative rules contained in the recommended
order. However, the agency may not
reject or modify findings of fact made by the Hearing Officer unless a review
of the entire record demonstrates that the findings were not based on
competent, substantial evidence or that the proceedings on which the findings
were based did not comply with the essential requirements of law. See, e.g., Freeze v. Dept. of Business
Regulation, 556 So. 2d 1204 (Fla. 5th DCA 1990); and Florida Department
of Corrections v. Bradley, 510 So. 2d 1122 (Fla. 1st DCA 1987). Competent, substantial evidence has been
defined by the Florida Supreme Court as such evidence as is "sufficiently
relevant and material that a reasonable mind would accept it as adequate to
support the conclusions reached." DeGroot
v. Sheffield, 95 So. 2d 912, 916 (Fla. 1957).
The agency may not reweigh the
evidence, resolve conflicts therein, or judge the credibility of witnesses,
because those are matters within the sole province of the hearing officer. Heifetz v. Dept. of Business Regulation,
475 So. 2d 1277, 1281 (Fla. 1st DCA 1985).
Consequently, if the record of the DOAH proceedings discloses any
competent, substantial evidence to support a finding of fact made by the Hearing
Officer, the Commission is bound by that finding.
Rulings on Respondent's Exceptions To
Findings of Fact
1. Without
providing any supporting argument, Respondent excepts to the Hearing Officer's
rejection of his Proposed Findings of Fact 2a through 2f. Because we find that the Hearing Officer
properly rejected Respondent's proposed findings as a recitation of the
testimony of his witnesses rather than them being facts based upon competent
substantial evidence supported by the greater weight of the evidence, Respondent's exception is rejected. It is not our function to reweigh the
evidence or to rewrite the Hearing Officer's findings as long as there is
competent substantial evidence to support the findings, as there is here.
Additionally, we find that, inasmuch as the
Hearing Officer correctly concluded that for purposes of the voting conflicts
law it was sufficient that the Board had the ability to suspend or revoke the
license or permit pulling ability of a contractor in such as way that it could
interfere with the business relationship between a contractor and his
subcontractor, Respondent's proposed findings were properly rejected for the
following reasons:
2a(1)--irrelevant.
2a(2)--accepted
in the Hearing Officer's Finding of Fact No.
1.
2a(3)--irrelevant.
2a(4)--irrelevant. Advocate's Exhibit 4 also indicates that the
Board had the authority to revoke, suspend or
deny the issuance or renewal of a registered contractor's
license.
2a(5)--irrelevant
and not supported by the greater weight of
the evidence since the Board had the authority to revoke or suspend the issuance of a license. The ordinance
does not limit the Board's disciplinary authority
to only future contracts or permits of a contractor.
2a(6)--irrelevant.
2b(1)--irrelevant.
2b(2)--irrelevant.
2b(3)--irrelevant.
2b(4)--irrelevant.
2b(5)--irrelevant.
2b(6)--irrelevant.
2b(7)--irrelevant.
2b(8)--irrelevant.
2b(9)--Relevant
only to possible mitigation of the recommended
penalty.
2b(10)--irrelevant.
2b(11)--irrelevant.
2b(12)--irrelevant.
2b(13)--irrelevant
and not supported by competent substantial
evidence of record.
2b(14)--irrelevant.
2b(15)--irrelevant.
2b(16)--Relevant
only to possible mitigation of the recommended
penalty.
2b(17)--irrelevant.
2b(18)--irrelevant.
2c(1)--irrelevant.
2c(2)--irrelevant.
2c(3)--irrelevant.
2c(4)--accepted
in substance in the Hearing Officer's Recommended
Finding of Fact No. 12.
2d(1)--accepted
in substance in the Hearing Officer's Recommended
Finding of Fact No. 7.
2d(2)--accepted
in substance in the Hearing officer's Recommended
Finding of Fact No. 8.
2d(3)--irrelevant.
2d(4)--irrelevant.
2d(5)--irrelevant.
2d(6)--irrelevant.
2d(7)--irrelevant.
2d(8)--subsumed
within the Hearing Officer's Finding of Fact
No. 10.
2d(9)--irrelevant.
2e(1)--irrelevant.
2e(2)--irrelevant.
2e(3)--irrelevant.
2e(4)--irrelevant.
2e(5)--irrelevant. Merely knowing a contractor who appeared on a matter before the Board would not
create a prohibited voting conflict of
interest for the Board member who knew
the contractor.
2e(6)--this
is a conclusion of law, rather than a finding of
fact.
2e(7)--irrelevant.
2e(8)--irrelevant.
2e(9)--irrelevant.
2e(10)--irrelevant.
2f(1)--accepted
in part in the Hearing Officer's Finding of
Fact No. 9. The remainder is
irrelevant.
2f(2)--accepted
in part in the hearing Officer's Finding of
Fact No. 9. The remainder is
irrelevant.
2f(3)--irrelevant.
2f(4)--irrelevant.
2f(5)--irrelevant.
2f(6)--not
supported by competent substantial evidence of record
and irrelevant.
2f(7)--this
is a conclusion of law rather than a finding of
fact. It also conflicts with the
Hearing Officer's Conclusion of Law
paragraph No. 22.
2f(8)--irrelevant.
2f(9)--irrelevant.
2f(10)--irrelevant. Knowledge is not required for a violation to exist.
2f(11)--Respondent's
consideration of what Tracey would or
would not do is irrelevant.
2f(12)--irrelevant.
2f(13)--irrelevant.
2f(14)--irrelevant.
2f(15)--irrelevant. Advocate's exhibit 4 indicates that the Board had the authority to suspend a contractor's license.
2f(16)--no
competent substantial evidence of record exists
establishing that the Board had a specific policy
concerning contractors working on jobs for which
permits had been issued.
2f(17)--irrelevant.
2f(18)--not
supported by competent substantial evidence of
record.
2f(19)--irrelevant.
2f(20)--irrelevant.
2f(21)--irrelevant.
2. Without argument to support his exception and
without stating why some of Respondent's Proposed Findings of Fact were
rejected, Respondent also appears to except to the Hearing Officer's failure to
specifically incorporate another 17 of Respondent's Proposed Findings of Fact
in her Recommended Order. Respondent's Proposed Findings were dealt with by the
Hearing Officer as follows:
3a--incorporated
in the Hearing Officer's Finding of Fact No.
10.
3b--incorporated
in the Hearing Officer's Finding of Fact No.
10.
3c--Accepted
in substance by the Hearing Officer in Findings
of Fact Nos. 8, 9, and 10. The Hearing Officer did not find that Respondent personally
had a contractual relationship with
Tracey.
3d--rejected
as immaterial.
3e--rejected
as immaterial.
3f--rejected
as immaterial because the Board had the authority
to suspend Tracy's license.
3g--rejected
as immaterial because the Board had the authority
to revoke Tracey's license.
3h--rejected
as immaterial.
3i--rejected
as immaterial because the Board had the authority
to affect Tracey's ability to conclude a job
in progress.
3j--rejected
as not supported by the greater weight of evidence.
3k--rejected
as argument.
3l--rejected
as constituting a conclusion of law, rather than
a finding of fact.
3m--rejected
as not supported by the greater weight of the
evidence.
3n--rejected
as not supported by the greater weight of the
evidence.
3o--rejected
as not supported by the greater weight of the
evidence.
3p--rejected
as not supported by the greater weight of the
evidence.
3q--rejected
as not supported by the greater weight of the
evidence.
As stated by the court in Heifetz v.
Department of Business Regulation, Division of Alcoholic Beverages &
Tobacco, 475 So. 2d 1277, 1281 (Fla. 1st DCA 1985):
It is the hearing officer's function to
consider all the evidence presented, resolve conflicts, judge credibility of
witnesses, draw permissible inferences from the evidence, and reach ultimate
findings of fact based on competent substantial evidence. State Beverage Department v. Ernal, Inc.,
115 So. 2d 566 (Fla. 3d DCA 1959). If,
as is often the case, the evidence presented supports two inconsistent
findings, it is the hearing officer's role to decide the issue one way or the
other.
It is not our function to reweigh the
evidence as long as there is competent substantial evidence to support the
Hearing Officer's findings as there is here.
Inasmuch as the Hearing Officer fulfilled her function of weighing the
evidence, judging the credibility of the witnesses, and drawing permissible
inferences from the evidence, we are not free to supplement her findings and we
decline to do so. As the Court also
stated in Manasota 88, Inc. v. Tremor, 545 So. 2d 439 (Fla. 2d DCA
1989):
Agency fact-finding independent of and
supplementary to D.O.A.H. proceedings has been specifically disapproved. See e.g. Friends of
Children v. Department of Health and Rehabilitative Services, 504 So. 2d
1345 (Fla. 1st DCA 1987).
Therefore,
Respondent's exceptions are rejected.
Ruling on Respondent's Exceptions to
Conclusions of Law
3. Respondent
excepts to what he describes as the Hearing Officer's failure to recognize and
give due credence to the statement of legislative intent and declaration of
policy set forth in Sections 112.311(a)2, (4), and (5), and the definition of
"conflict" or "conflict of interest" set forth in Section
112.312(6), Florida Statutes (1989).
Because the legislative intent, as expressed in Section 112.311(a)(2),
(4), and (5), does not control over the specific standard of conduct
established in Section 112.3143, because Section 112.3143 does not require
Respondent to choose between serving on the Board and maintaining his private
occupation, and because we find that the Hearing Officer's interpretation of
Section 112.3143 was correct, Respondent's exception is rejected.
Although Respondent also refers to Section
112.312(6), Florida Statutes (1989) (the definition of "conflict" or
"conflict of interest"), this section is irrelevant because it does
not relate to any issue within the operative language of Section 112.3143. Therefore, we find that the Hearing Officer
appropriately did not mention it in her Recommended Order.
4. Paragraphs
2 through 7 of Respondent's exceptions are holdings or findings relative to
Section 112.3143 that Respondent believes that he has gleaned from our prior
opinions. For example, in paragraph 2,
Respondent writes that in order for a voting conflict to be created, the matter
up for a vote must relate to the personal, private, or professional interest of
the voting official and must inure to the [special] private gain of either the
official or a principal who retains the official. Essentially, Respondent has provided a recitation of the language
of Section 112.3143 prior to its amendment by the Legislature in 1984. In Chapter 84-357, Laws of Florida, the
Legislature, among other changes that it enacted, deleted the phrase "in
which he has a personal, private, or professional interest and." Since the amendment took effect, we have consistently
written that, among other things, Section 112.3143 prohibits a local public
officer from voting on a measure which inures to his special private gain and
from knowingly voting on any measure which inures to the special gain of a
principal by whom he is retained. See
CEO 85-65. However, because these "holdings" do not specifically
relate to the Hearing Officer's Conclusions of Law, there is no need for us to
respond to them here.
5. In
paragraph 8, Respondent claims the CEO 91-3, which was issued at the request of
the City Attorney on behalf of the City Council, is not controlling because of
a number of false assumptions contained in the opinion which were made by the
Commission and because of the erroneous conclusions reached by the
Commission. Although we disagree with
Respondent's assertions, there is no need for us to address them individually
because no where in the Hearing Officer's Recommended Order does she refer to
CEO 91-3 as the basis for her conclusions.
Respondent's exception therefore is rejected.
6. Respondent
specifically excepts to the Hearing Officer's Conclusions of Law Nos. 20, 22,
25, and 27. In Conclusions of Law nos.
20 and 22, the Hearing Officer concluded that Respondent violated Section
112.3143(2)(b), Florida Statutes (1989), by participating in two disciplinary
cases before the Board against David Tracey and Tracey Construction with whom
Respondent's air conditioning company had several area contracts without
disclosing his relationship with David Tracey and Tracey Construction prior to
participating in the cases and by failing to file a memorandum disclosing the
nature of his conflict within 15 days of the meeting at which his participation
occurred. In Conclusions of Law nos. 25
and 27, the Hearing Officer concluded that the Respondent had violated Section
112.3143(3) by failing to abstain from voting on the two disciplinary cases
involving Tracey Construction.
Respondent argues that the Hearing Officer
chose to accept the "hypothetical" rather than 'believe reality"
and ignored the well-established history of the Board's practice in dealing
with contractors who were subject to discipline. He claims that the Hearing Officer focused on the authority that
the Board could have exercised, but never did exercise. He writes that while the Hearing Officer
chose to view the instant case in a vacuum, this Commission must "descend
from the ivory tower and deal with the realities of the situation."
In opining that the Hearing Officer's
conclusions are correct, we wish to assure the Respondent that the nine members
of this Commission, all of whom are appointed from around the State, do not
review the matters before it from an "ivory tower" perspective.
Respondent claims that the realty that
should have been considered by the Hearing Officer is that the Board has never
suspended or revoked a contractor's license and prevented the contractor from
completing his performance on jobs already permitted prior to the imposition of
disciplinary action by the Board because to do so would result in penalizing an
owner whose project is under construction.
He also claims that even if a contractor was prohibited from completing
his performance on a contract, a scenario which has never occurred, there is
little likelihood that the subcontractors would be prevented from completing
their performance because of financial losses which would be sustained. Therefore, he reasons, he did not stand to
gain or lose as a direct or indirect result of the Board's decision in the
cases. He urges that any possible
benefit that he might have obtained from his vote was too remote, tenuous or
speculative.
Respondent's first two arguments are not
supported by the evidence of record and therefore are rejected. His argument about the remoteness,
tenuousness, and speculative nature of the benefit also is rejected. In previous opinions, we have found no
"special" gain to exist when the circumstances were such that any
gain or loss to the public official, or one by whom he was retained, was too
remote or speculative. See, for
example, CEO 87-47, in which we found that a State Representative who owned a
corporation that built and financed portable classroom buildings did not have a
voting conflict of interest in voting on appropriations to agencies which might
use those funds to purchase portable classrooms; CEO 85-77 in which we found no
special gain to exist for a school board member who owned a business near a
location which was proposed for a school district administrative complex; and
CEO 85-87 in which we found no special gain to the principal of a city council
member who would be voting on the redevelopment of property located next to the
bank which employed him. We also have
found no special private gain to exist in situations where there was
uncertainty at the time of the vote as to whether there would be any gain or
loss to the officer. However, here, the
Hearing Officer was correct in concluding that the action of the Board could
have affected the ongoing contracts that Respondent had with Tracey
Construction and any future contracts that Respondent may have had with Tracey
Construction. As long as the Board had
the authority to suspend or revoke the license or permit pulling ability of
Tracey or Tracey Construction, then the potential affects of Respondent's vote
on the cases, that is, possible loss of business, was not so remote, tenuous,
or speculative that it could not be said to inure to Respondent's special
private gain or to that of his company, Delta. Therefore, respondent's
exception is rejected.
Finally, Respondent's claims that he did not consider his private
interests when he participated in the cases, that his business with Tracey
amounted to only 5.75% of his gross sales in 1989 and decreased slightly the
following years, that he considered only the merits of the complaints, and that
he was not alone in determining that the complaints against Tracey were of no
merit, is of no significance as they relate to whether a violation of the
voting conflicts law occurred. What is
significant is that clearly the potential gain to Respondent could have been as
a direct result of his vote, whether his Board previously exercised all of its
disciplinary authority or not. Because
we conclude that the Hearing Officer's application of Sections 112.3143(2)(b)
and (3) to the facts found by the Hearing Officer is correct, Respondent's
exception is rejected.
Upon review of the record before us, we
conclude that the findings of the Hearing Officer are based upon competent
substantial evidence and that the D.O.A.H proceedings complied with the
essential requirements of law.
Therefore, the Findings of Fact set forth in the Recommended Order are
approved, adopted, and incorporated herein by reference.
The Conclusions of Law set forth in the
Recommended Order are approved, adopted, and incorporated herein by reference.
Accordingly, the Commission on Ethics finds
that the Respondent violated Sections 112.3143(2)(b) and 112.3143(3), Florida
Statutes (1989).
The Hearing
Officer recommended that Respondent be required to pay a civil penalty of
$750.00 for each violation, for a total of $1500.00, and that he be publicly
censured and reprimanded. Because we
find that the Hearing Officer's recommendation regarding the amount of the
civil penalty that should be imposed is out line with civil penalties
recommended in similar cases, that Respondent's business with Tracey
Construction declined after the voting occurred, and that in CEO 91-3 we noted
that we had not "previously rendered an opinion that directly addresses
this issue . . .," to do justice in this case we decline to recommend that
any civil penalty be imposed. We do,
however, believe that the recommendation that Respondent be publicly censured
and reprimanded is appropriate.
Pursuant to
Sections 112.317(1) and 112.324(4), Florida Statutes, it is the recommendation
of the Commission on Ethics that the Respondent be publicly censured and
reprimanded.
ORDERED by the
State of Florida Commission on Ethics meeting in public session on Thursday,
January 26, 1995.
____________________________
Date
Rendered
_______________________________
R.
Terry Rigsby
Chairman
THIS
ORDER CONSTITUTES FINAL AGENCY ACTION. ANY PARTY WHO IS ADVERSELY AFFECTED BY
THIS ORDER HAS THE RIGHT TO SEEK JUDICIAL REVIEW UNDER SECTION 120.68, FLORIDA
STATUTES, BY FILING A NOTICE OF ADMINISTRATIVE APPEAL PURSUANT TO RULE 9.110
FLORIDA RULES OF APPELLATE PROCEDURE, WITH THE CLERK OF THE COMMISSION ON
ETHICS, P.O. DRAWER 15709, TALLAHASSEE, FLORIDA 32317-5709 (physical address at
2822 Remington Green Circle, Suite 101); AND BY FILING A COPY OF THE NOTICE OF
APPEAL ATTACHED TO WHICH IS A CONFORMED COPY OF THE ORDER DESIGNATED IN THE
NOTICE OF APPEAL ACCOMPANIED BY THE APPLICABLE FILING FEES WITH THE APPROPRIATE
DISTRICT COURT OF APPEAL. THE NOTICE OF ADMINISTRATIVE APPEAL MUST BE FILED
WITHIN 30 DAYS OF THE DATE THIS ORDER IS RENDERED.
cc: Mr. Bruce R. Conroy, Attorney for
Complainant
Mr. John Charles Coleman, Attorney for
Respondent
Mr. Stuart F. Wilson-Patton, Commission
Advocate
Honorable Susan B. Kirkland, Hearing
Officer
Division of Administrative Hearings