BEFORE THE
STATE OF FLORIDA
COMMISSION ON ETHICS
In re ELI TOURGEMAN,
DOAH
NO: 93-5183EC
Respondent. Complaint No. 91-73
Final
Order No. COE 94-28
_____________________/
FINAL ORDER AND PUBLIC
REPORT
This matter came before the Commission on Ethics on the Recommended
Order rendered in this matter on April 29, 1994 by the Division of
Administrative Hearings (DOAH) [a copy of which is attached and incorporated by
reference]. The Hearing Officer recommends
that the Commission enter a final order and public report dismissing the
complaint filed against the Respondent in this matter.
Both the Advocate for the Commission and the Respondent filed exceptions
to the Recommended Order, the Advocate filed a response to the Respondent's exceptions,
and the Respondent did not file a response to the Advocate's exceptions.
The Advocate takes exception to paragraph 30 of the Recommended Order,
arguing that the Hearing Officer erred as a matter of law in concluding that
the lack of independent ability on the part of a public official to terminate
or discipline the public employment or status of a public employee precludes
the finding of coercion in the superior-subordinate relationship. Further, the Advocate's exceptions go on to
request that the Commission modify the conclusion of law contained in paragraph
30 to recognize that there can be an implicit understanding on an employee's
part that failure to find favor with a superior for any reason might constitute
a threat to his employment--that coercion or misuse of one's public position
under Section 112.313(6), Florida Statutes, can occur regardless of whether or
not a public official has the actual" power to fire, discipline, or sanction a particular employee. However, the Advocate's exceptions also
assert that in this particular matter the totality of the circumstances,
including the fact that the Respondent, when he did make a threat, made one
related to the withholding of the Kiwanis money rather than one directed toward
the employee's employment and the fact that the employee herself perceived no
danger to her employment, preclude a finding that the Respondent attempted to
make use of the influence he had, as a public official, over the employee.
The Respondent takes exception to paragraph 31 of the Recommended Order,
arguing that the Hearing Officer's legal conclusions that the Respondent
"did corruptly use his position as a member of the Kiwanis Club" and
that the same "may not be morally right" are gratuitous comments not
relevant to any issues before the Hearing Officer. The Advocate responds to the exception by arguing that the
language contained in paragraph 31 is necessary to explain the Hearing
Officer's decision, which ultimately
was entered in favor of the Respondent.
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. Debt. of Business Regulation, 556
So.2d 1204 (Fla. 5th DCA 1990); and Florida Deoartment 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 Reculation, 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.
Having reviewed the Recommended Order, the Advocate's exceptions, the
Respondent's exceptions, the Advocate's response to the Respondent's
exceptions, and the record of the public hearing of this matter that has been
placed before the Commission, and having considered the arguments of the
Respondent and the Advocate made before the Commission at its final
consideration of this matter, the Commission makes the following findings,
conclusions, rulings, and recommendations:
Rulings on Advocate's Exceptions
Under our precedent [see, e.g.",
In re LANCASTER, 5 F.A.L.R., 1565-A (Fla. Comm. on Ethics 1983)], we have found
that implicit coercion can be present regardless of whether a respondent is
vested with the power to hire, discipline, or otherwise affect a public
employee's employment. We believe that
to be a correct interpretation of Section 112.313(6) and see no reason to
deviate from that reasoning. Therefore,
the conclusion of law found in paragraph 30 of the Recommended Order is
modified to be consistent with our reasoning expressed above. However, under the particular facts of this
matter, we determine that the Respondent, for the reasons set forth in the
Advocate's exceptions and in the Hearing Officer's Recommended Order as
modified herein, did not violate Section 112.313(6), Florida Statutes. Accordingly, the Advocate's exception is
granted.
Rulings on Respondent's
Exceptions
Whether the Respondent's actions were taken as a member of the Kiwanis
club rather than as a public official is relevant to the issue of whether the
Respondent misused his public position in violation of Section 112.313(6). However, the term "corruptly," by
definition, is applicable only to the actions of a public servant in connection
with his public duties and Section 112.313(6) does not address private capacity
conduct, such as that of a member of a service club. Therefore, while it thus was proper in the course of trying the
charges in this matter and considering any applicable defenses thereto for the
Hearing Officer to determine that the Respondent's actions were not taken in
his capacity as a public official but rather were taken in his capacity as a
member of the Kiwanis Club, the legal term
"corruptly" is not available to be ascribed to the
Respondent's private conduct.
Similarly, whether the Respondent's actions were "morally
right" is not a matter addressed by the Code of Ethics or at issue in this
matter. Thus, the Respondent's
exception is granted and paragraph 31 of the Recommended Order is hereby amended
to read:
31. Tourgeman
did not as a public official
attempt to gain special benefits for his
nephews, i.e., summer camp scholarships.
Therefore, there was not a violation of Section
112.313(6), Florida Statutes.
FINDINGS OF FACT
The Findings of Fact set forth in the Recommended Order are approved,
adopted, and incorporated herein by reference.
CONCLUSIONS OF LAW
1. The Conclusions of Law set
forth in the Recommended Order are approved, adopted, and incorporated herein
by reference except as modified above.
2. The Commission finds that the
Respondent, Eli Tourgeman, did not violate Section 112.313(6), Florida
Statutes, as alleged in the complaint filed in this matter.
Accordingly, this Complaint is hereby dismissed.
ORDERED by the State of Florida Commission on Ethics meeting in public
session on Thursday, July 14, 1994.
____________________
July 20, 1994
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
120.68f 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, 2822 REMINGTON GREEN CIRCLE, SUITE 101, TALLAHASSEE,
FLORIDA 32308; OR P. O. DRAWER 15709, TALLAHASSEE, FLORIDA 32317-5709; AND BY
FILING A COPY OF 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. Richard Waserstein, Attorney for Respondent
Mr. Stuart F. Wilson-Patton, Commission Advocate
Mr. Alan Rubin, Complainant
Division of Administrative Hearings