STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

In re: DAVID KNICKERBOCKER, ) CASE NO. 94-1786EC

_____________________________)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Susan B. Kirkland, held a formal hearing in this case on August 4, 1994, in Sanford, Florida.

APPEARANCES

For Advocate: Marty E. Moore, Esquire

Attorney General's Office

PL-01, The Capitol

Tallahassee, Florida 32399-1050

For Respondent: Michael L. Gore, Esquire

Shutts & Bowen

20 North Orange Avenue

Orlando, Florida 32801

STATEMENT OF THE ISSUES

Whether Respondent, as Mayor of the City of Oviedo, violated Sections 112.313(8) and 112.313(6), Florida Statutes, and, if so, what penalty should be imposed.

PRELIMINARY STATEMENT

On March 15, 1994, the Florida Commission on Ethics entered an Order Finding Probable Cause to believe that Respondent, David Knickerbocker, as Mayor of the City of Oviedo, violated Section 112.313(8), Florida Statutes, by disclosing or using information not available to members of the general public and gained by reason of his official position, about potential City of Oviedo land purchases for his own benefit or the benefit of other persons or business entities and that he violated Section 112.313(6), Florida Statutes, by corruptly using or attempting to use a resource within his trust, that is, non-public information about potential land purchases by the City of Oviedo, to secure a special benefit for himself or others. The case was forwarded to the Division of Administrative Hearings for assignment to a hearing officer.

The parties stipulated to the facts contained in paragraphs 1-31 in section E of the Joint Prehearing Stipulation.

At the final hearing, the Advocate called the following witnesses: Eugene Williford, Philip Hampton, and Joe Scuro. Joint Exhibits 1-9 were admitted in evidence. Respondent testified in his own behalf and called Thomas Knickerbocker and Dorothy Knickerbocker as witnesses.

At the final hearing the parties agreed to file proposed recommended orders within ten days of the date that the transcript was filed. The transcript was filed on August 19, 1994. On August 29, 1994, Respondent filed an Unopposed Motion for Extension of Time to File Proposed Recommended Order. The motion was granted and the parties were given until August 31, 1994, to file their proposed recommended orders. The parties timely filed their proposed recommended orders. The parties' proposed findings of fact are addressed in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. Respondent, David Knickerbocker (Knickerbocker) served as the elected mayor of the City of Oviedo (City), Seminole County, Florida, from September 1991 to September 1993.

2. The mayor of the City attends and participates in City Council (Council) meetings but does not have a vote in Council matters.

3. Knickerbocker is and has been at all times material to this case, a state-registered real estate broker and part-owner of Oviedo Realty, doing business as Century 21 Oviedo Realty, in Oviedo Florida.

4. The property involved in this case consists of three tracts of commercial/industrial zoned property on Evans Street within the city limits of Oviedo. The three tracts consist of two vacant parcels of property (Tracts I and III), which flank a center parcel of property (Tract II) upon which a warehouse structure has been built.

5. In 1984 Knickerbocker was the real estate agent involved in the sale of Tract II to Rudy Vuckovic.

6. In 1985, Mr. Vuckovic constructed a large warehouse-type building on Tract II.

7. Knickerbocker was also the real estate agent involved when Mr. Vuckovic purchased the adjacent vacant lots, Tracts I and III, in 1984 and 1986, respectively, from Harry O. Hall for the price of $45,000 each.

8. From October, 1991 until January, 1993, Knickerbocker's company, Century 21 Oviedo Realty, Inc., listed for sale, Tracts I, II, and III. From December 1992 until the end of May 1993, Duke Realty also listed for sale Tracts I, II, and III. As of June 7, 1993, the three parcels of property had not been sold.

9. Mr. Vuckovic telephoned Knickerbocker the morning of June 7, 1993, to say that he needed to obtain contracts for sale of Tracts I and III that week. He agreed to pay ten percent commission to Knickerbocker if Knickerbocker sold the lots for him. Vuckovic's asking price for each lot was $35,000.

10. At the regular public meeting of the Council on Monday evening, June 7, 1993, city manager Eugene Williford (Williford) requested and obtained the Council's authorization to explore the possibility of purchasing an 8,000 square feet building on Evans Street for use as a public works facility. The Evans Street building which the City Manager was discussing on June 7, 1993 was the large warehouse-type building that Mr. Vuckovic had constructed on Tract II. In his brief presentation, the City Manager attempted to minimize the information he divulged publicly, being careful not to compromise the City's future bargaining position.

11. During the Council's public discussion of Tract II, there was no mention made by Williford, Knickerbocker, or anyone else of Mr. Vuckovic's two vacant lots, Tracts I and III, nor was there any indication that Williford was interested in pursuing the purchase of those two lots. Knickerbocker did not mention during the meeting that he had knowledge concerning any of the three tracts.

12. After the June 7 Council meeting concluded, Knickerbocker, Williford, and Councilman Hampton walked out together to the parking lot behind city hall. Having judged the credibility of the witnesses, I find that the three men did discuss the purchase of Tracts I, II, and III. Williford advised Knickerbocker that if the City purchased Tracts I and III, that one of the lots could be used as a compound for confiscated vehicles and the other lot could be used for storing materials. The possible means of financing the vacant lots and the building on Tract II was also discussed. The information concerning the City's interest in purchasing Tracts I and III were divulged to Knickerbocker because of his position as mayor.

13. The post-meeting discussion between Knickerbocker and Williford about Tracts I, II and III took place in the presence of Councilman Hampton but was not a duly noticed public hearing open to the public and recorded as a public meeting. No other persons were present.

14. At no time during the evening of June 7, 1993, did Knickerbocker tell the city manager or any city council member that Mr. Vuckovic was desperate to quickly sell Tracts I and III.

15. Within a few days after June 7, 1993, Knickerbocker tried unsuccessfully to find investors who would be interested in purchasing Tracts I and III.

16. On Thursday, June 10, Knickerbocker called Williford to tell him that Orange Bank now owned Tract II and that Milton West of Orange Bank would be contacting Mr. Williford to discuss selling the building to the City. During his June 10 conversation with Williford, Knickerbocker did not tell Williford that Mr. Vuckovic owned Tracts I and III nor did Knickerbocker tell Williford that Mr. Vuckovic was in a hurry to sell those two lots.

17. On Thursday, June 10, 1993, Knickerbocker told his mother, Dorothy Knickerbocker, that Mr. Vuckovic had two vacant lots adjacent to Tract II that he needed to sell in a hurry and that the two lots were a "very good buy." Knickerbocker further told his mother that the City was interested in purchasing the building between the two lots. No evidence was presented that Knickerbocker directly divulged to his mother that the city was interested in purchasing Tracts I and III.

18. Shortly after his conversation with his mother on June 10, 1993, Knickerbocker called Mr. Vuckovic and negotiated a purchase price of $31,000 each for Tracts I and III. Knickerbocker had agreed with his mother that he would forego his commission on the sale of the property.

19. Knickerbocker drafted two contracts for sale of Tracts I and III, and on Saturday, June 12, 1993, delivered those contracts to his mother for her signature and then to Mr. Vuckovic for his signature. Both signed the contracts in Knickerbocker's presence.

20. On Monday, June 14, 1993, Knickerbocker advised Williford that his mother and brother, Tom Knickerbocker, had contracted to buy Tracts I and III.

21. Prior to his June 14 conversation with the city manager, Knickerbocker had not told the city manager of his family's interest in purchasing Tracts I and III.

22. The night of Monday, June 14, 1993, Knickerbocker asked Councilman Hampton, a surveyor, to survey Tracts I and III. Knickerbocker did not tell Mr. Hampton at that time that Mrs. Knickerbocker and her son, Tom, were buying the property.

23. On Wednesday, June 16, 1993, Knickerbocker delivered the two contracts for sale to Attorney Joseph Scuro so he could take them to closing on June 30, 1993, the closing specified on the contracts.

24. In attempting to bring the sale to closure, Attorney Scuro learned of some significant encumbrances on the property and encountered difficulty in contacting the attorneys of other parties who had interests in the property. Mr. Scuro advised Knickerbocker of the problems that he was having in closing the property sale.

25. On July 9, 1994, Attorney Scuro left a message at Knickerbocker's office that he was withdrawing from representing Knickerbocker's mother in the purchase of Tracts I and III.

26. On July 22, 1994, Mr. Scuro talked with Knickerbocker concerning his withdrawal of representation of Knickerbocker's mother. He advised Knickerbocker that there were problems with encumbrances on the vacant lot and that the contracts to purchase the lots in which the city was interested had become a political issue. At that time, Knickerbocker advised Mr. Scuro that Mrs. Knickerbocker had decided not to buy the two lots.

27. On or about Thursday evening, July 22, Knickerbocker telephoned Williford at his house and told him that his mother had withdrawn her offer to purchase Tracts I and III.

28. On Friday, July 23, 1993, Knickerbocker telephoned the Florida Commission on Ethics (Commission) office in Tallahassee and sought an opinion from the Commission's staff. He talked with Public Information Officer, Helen Jones and advised her, among other things, that he had told his mother and brother not to buy the lots because of appearances.

29. Knickerbocker also contacted the State Attorney's Office for the Eighteenth Judicial Circuit and asked a prosecutor there if it would be possible for the State Attorney to conduct an investigation of his conduct relative to Tracts I and III.

30. On Monday, August 2, 1993, during a regularly scheduled public meeting, the Council approved the contract the city manager had negotiated for the purchase of Tract II.

CONCLUSIONS OF LAW

31. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding. Section 120.57(1), Florida Statutes. Section 112.322, Florida Statutes, and Rule 34-5.0015, Florida Administrative Code, authorize the Commission to conduct investigations and to make public reports on complaints concerning violations of Part III, Chapter 112, Florida Statutes (the "Code of Ethics for Public Officers and Employees").

32. The burden of proof, absent a statutory directive to the contrary, is on the party asserting the affirmative of the issue in the proceeding. Department of Transportation v. J.W.C. Co., Inc., 396 So.2d 778 (Fla. 1st DC 1981) and Balino v. Department of Health and Rehabilitative Services, 348 So.2d 249 (Fla. 1st DCA 1977). In this proceeding it is the Commission through the Advocate that is asserting the affirmative: that Knickerbocker violated Sections 112.313(6) and 112.313(8), Florida Statutes. Therefore, the burden of establishing the elements of Knickerbocker's alleged violations is on the Commission.

33. Section 112.313(6), Florida Statutes, provides as follows:

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.

34. The term corruptly is defined by Section 112.312(9), Florida Statutes, to mean:

. . . 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.

35. In order to establish a violation of Section 112.313(6), Florida Statutes, the following elements must be proved:

1. The Respondent must be either a public

officer or a public employee.

2. The Respondent must have used or attempted

to use his official position or property or

resources within his trust, or performed his

official duties.

3. The Respondent's actions in element two must

have been done with an intent to secure a special

privilege, benefit, or exemption for himself or others.

4. The Respondent's action and intent in elements

two and three must have been done corruptly, i.e.,

a. done with a wrongful intent, and

b. done for the purpose of benefiting from some

act or omission which is inconsistent with the proper

performance of his public duties.

36. The Advocate has established that Knickerbocker was a public officer. He was the Mayor of the City of Oviedo.

37. The Advocate has established by a preponderance of the evidence that Knickerbocker attempted to use resources within his trust, i.e. information that the city was interested in buying Tracts I and III, with the intent to secure a special benefit for his mother and brother. The special benefit being the purchase and resale of the two tracts of property for a quick profit. Knickerbocker knew that the City was interested in buying the two lots and that whoever owned the two lots had a potential buyer, the City.

38. The Advocate has established that Knickerbocker's actions were done corruptly. Knickerbocker testified considerably about the fiduciary duty that he owed Mr. Vuckovic and that he knew as a realtor that he should not disclose confidential information of a client. By the same token, Knickerbocker knew that information concerning a potential purchase of Tracts I and III which had not been disclosed publicly and which he gained as a result of his position as mayor could not be used to gain a special benefit for his family. The attempted use of such information to benefit his family was inconsistent with his duties as mayor.

39. The Advocate has established by a preponderance of the evidence that Knickerbocker violated Section 112.313(6), Florida Statutes.

40. Section 112.313(8), Florida Statutes, provides:

DISCLOSURE OR USE OF CERTAIN INFORMATION--No

public officer or employee of an agency shall

disclose or use information not available to

members of the general public and gained by reason

of his official position for his personal gain or

benefit or for the personal gain or benefit of any

other person or business entity.

41. In order to establish a violation of Section 112.313(8), Florida Statutes, the following elements must be proved:

1. The Respondent must be either a public

officer or public employee.

2. The Respondent must have disclosed or

used information which was

a. not available to members of the

general public, and

b. gained by reason of his official

position.

3. The information disclosed or used must

have been disclosed or used to secure

personal gain or benefit the Respondent

or any other person or business entity.

42. The Advocate has established that Knickerbocker violated Section 112.313(8), Florida Statutes. Knickerbocker, as Mayor of Oviedo, was a public officer. Knickerbocker learned from the city manager on June 7, 1993, that the City was interested in purchasing Tracts I and III. This information was not available to the general public and was given to him because he was the Mayor of Oviedo. Knickerbocker, used the information to benefit his mother and brother. Knickerbocker knew that whoever owned Tracts I and III, would have the potential to sell them to the City. By urging his family to purchase the two lots when he knew that the City wanted to buy them, he was using the information to gain a special benefit to his mother and brother.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is

RECOMMENDED that a Final Order and Public Report be entered finding that David Knickerbocker violated Sections 112.313(6) and 112.313(8), Florida Statutes; imposing a civil penalty of $2,000 per allegation ($4,000 total); and issuing a public censure and reprimand.

DONE AND ENTERED this 27th day of October, 1994, in Tallahassee, Leon County, Florida.

___________________________________

SUSAN B. KIRKLAND

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 27th day of October, 1994.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-1786EC

To comply with the requirements of Section 120.59(2), Florida Statutes (1993), the following rulings are made on the parties' proposed findings of fact:

Advocate's Proposed Findings of Fact.

1. Paragraphs 1-31 (Stipulated Findings of Fact):

Accepted.

2. Paragraphs 1-2: Accepted in substance.

3. Paragraph 3: The first sentence is accepted in

substance. The second sentence is accepted.

4. Paragraph 4: Accepted in substance.

5. Paragraph 5: Accepted in substance to the extent that

Knickerbocker initiated the discussion initially

concerning the building, which led to a discussion of

all three tracts.

6. Paragraphs 6-7: Accepted in substance.

7. Paragraph 8: The first sentence is accepted in

substance. The second sentence is rejected as

constituting argument.

8. Paragraph 9: The first sentence is accepted in

substance. The last two sentences are rejected as

constituting argument.

9. Paragraph 10: The first sentence is accepted in

substance. The second sentence is rejected as

constituting argument.

10. Paragraph 11: The first sentence is accepted in

substance. The second sentence is subordinate to the

facts actually found.

11. Paragraphs 12-17: Accepted in substance.

12. Paragraph 18: The second sentence is rejected as

constituting argument. The remainder of the paragraph

is rejected as subordinate to the facts actually found.

13. Paragraphs 19-21: Accepted in substance.

14. Paragraphs 22-23: Rejected as constituting argument.

15. Paragraph 24: The first sentence is accepted in

substance. The remainder is rejected as constituting

argument.

16. Paragraph 25: The last sentence is rejected as

constituting argument.

Respondent's Proposed Findings of Fact.

1. Paragraphs 1-2: Accepted in substance.

2. Paragraph 3: Rejected as subordinate to the facts

actually found.

3. Paragraph 4: The first sentence is accepted. The second

sentence is accepted in substance. The last sentence is

rejected as unnecessary.

4. Paragraph 5: Rejected as subordinate to the facts

actually found.

5. Paragraph 6: Accepted in substance.

6. Paragraph 7: Accepted.

7. Paragraphs 8-10: Accepted in substance.

8. Paragraphs 11-12: Rejected as unnecessary and

subordinate to the facts found.

9. Paragraph 13: Accepted in substance.

10. Paragraph 14: Rejected as subordinate to the facts

actually found.

11. Paragraphs 15-17: Accepted in substance.

12. Paragraph 18: The first sentence is accepted in

substance. The remainder is rejected as subordinate to

the facts actually found.

13. Paragraph 19: Rejected as irrelevant.

14. Paragraph 20: Accepted in substance.

15. Paragraph 21: Rejected as constituting argument.

16. Paragraph 22: The first sentence is accepted in

substance. The remainder is accepted in substance to

the extent that these may have been things that

Knickerbocker considered but rejected to the extent

that it implies that he was unaware of the City's

interest in purchasing the vacant lots. It is obvious

the City's interest in the vacant lots would have an

impact on the value of the lots.

17. Paragraphs 23-24: Accepted in substance.

18. Paragraph 25: Rejected to the extent that it is

representative of the entire conversation between

Hampton, Williford, and Knickerbocker. All three men

discussed the interest in the purchase of the vacant

lots by the city and the financing of such a purchase.

19. Paragraph 26: The first two sentences are accepted in

substance. The last sentence is rejected as

unnecessary.

20. Paragraph 27: Rejected as constituting argument and

recitation of testimony.

21. Paragraph 28: Rejected as constituting recitation of

testimony.

22. Paragraph 29: Having judged the credibility of the

witnesses the first sentence is rejected. The first

portion of the second sentence is accepted in

substance. The second portion of the second sentence

is rejected as constituting argument.

23. Paragraphs 30-32: Rejected as constituting argument.

24. Paragraphs 33-34: Rejected as unnecessary.

25. Paragraph 35: The first sentence is accepted in

substance. The remainder is rejected as subordinate to

the facts actually found.

26. Paragraph 36: Rejected as unnecessary.

27. Paragraphs 37-38: Accepted in substance.

28. Paragraph 39: Rejected as subordinate to the facts

actually found.

29. Paragraph 40: Rejected as constituting argument.

30. Paragraph 41: Accepted in substance.

31. Paragraph 42: The first sentence is rejected as

unnecessary. The remainder is accepted in substance.

32. Paragraph 43: Rejected as recitation of testimony.

33. Paragraphs 44-45: Accepted in substance.

34. Paragraph 46: The first sentence is rejected as

unnecessary. The second sentence is accepted in

substance. The last sentence is rejected as

unnecessary.

35. Paragraph 47: The first sentence is accepted in

substance. The second sentence is rejected as

constituting argument.

36. Paragraph 48: Rejected as unnecessary.

37. Paragraph 49: Rejected as constituting recitation of

testimony.

38. Paragraph 50: Rejected as constituting argument.

39. Paragraph 51: Accepted in substance.

40. Paragraph 52: Rejected as subordinate to the facts

actually found.

41. Paragraphs 53-55: Accepted in substance.

42. Paragraph 56: Accepted in substance to the extent that

one of the reasons that Mrs. Knickerbocker did not go

through with the transaction was because of the

encumbrances on the property, but rejected to the

extent that it implies that was the only

reason. Tom Knickerbocker testified that his mother

told him that one of the reasons she was not going to

continue with the purchase was that it did not look

good with Knickerbocker running for mayor.

43. Paragraph 57: The first sentence is accepted in

substance. The second sentence is accepted in

substance as to what Knickerbocker told Scuro but not

to the extent that it implies that that was the only

reason she did not continue with the purchase.

44. Paragraph 58: Accepted in substance.

45. Paragraphs 59-60: Rejected as unnecessary.

46. Paragraph 61: Having judged the credibility of the

witnesses, it is rejected.

47. Paragraph 62: The first sentence is accepted in

substance that Knickerbocker told Scuro that he was

unaware of the City's interest in the vacant lots but

rejected to the extent that the statement was true.

The second sentence is accepted in substance. Having

judged the credibility of the witness, I reject the

last two sentences.

48. Paragraph 63: The first two sentences are accepted in

substance as to what Knickerbocker told Williford, but

rejected to the extent that it implies that what

Knickerbocker told Williford about being unaware of the

City's interests in the lots was true. The remainder

is rejected as constituting argument.

49. Paragraphs 64-65: Rejected as unnecessary.

50. Paragraph 66: The first sentence is accepted in

substance. The second sentence is accepted to the

extent that Ms. Jones relayed the opinion of the

attorney who had reviewed her typed notes of the

conversation and that the attorney's opinion was based

on those notes. It should be noted that the attorney

did opine that there would probably be no problem with

Section 112.313(8) as long as the information used came

from public records or public meetings and that the

attorney did not give an opinion concerning Section

112.313(6).

51. Paragraph 67: The first sentence is accepted in

substance. The second sentence is rejected as not

supported by competent substantial evidence.

52. Paragraph 68: The first sentence is accepted in

substance. The second sentence is subordinate to the

facts actually found.

53. Paragraph 69: Rejected as constituting argument.

54. Paragraph 70: Rejected as subordinate to the facts found.

COPIES FURNISHED:

Carrie Stillman

Complaint Coordinator

Commission on Ethics

Post Office Box 15709

Tallahassee, Florida 32317-5709

Marty E. Moore, Esquire

Office of the Attorney General

Department of Legal Affairs

The Capitol, PL-01

Tallahassee, Florida 32399-1050

Michael L. Gore, Esquire

20 North Orange Avenue, Suite 1000

Orlando, Florida 32801

Bonnie Williams

Executive Director

Florida Commission On Ethics

Post Office Drawer 15709

Tallahassee, Florida 32317-5709

Phil Claypool, Esquire

General Counsel

Ethics Commission

2822 Remington Green Circle, Suite 101

Post Office Drawer 15709

Tallahasee, Florida 32317-5709

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 ten 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.