STATE OF FLORIDA
DIVISION OF
ADMINISTRATIVE HEARINGS
In Re: EMIL
DANCIU CASE NO. 94-2641EC
_____________________/
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 16, 1994, in Boca Raton, Florida.
APPEARANCES
For Advocate: Virlindia Doss
Assistant Attorney General
The Capitol, PL-01
Tallahassee, Florida 32399-1050
For Respondent: Jeff Brown
LaValle, Brown, Ronan, P.A.
The Sanctuary, Building D
4800 North Federal Highway, Suite 300
Post Office Box 3004
Boca Raton, Florida 33431-5178
STATEMENT OF THE ISSUES
Whether Respondent violated Section 112.3148(4), Florida Statutes, and,
if so, what penalty should be imposed.
PRELIMINARY STATEMENT
On September 8, 1993, the Florida Commission on Ethics issued an Order
Finding Probable Cause to believe that Respondent violated Section 112.3148(4),
Florida Statutes, and ordered a public hearing to determine whether Respondent
, as Mayor of the City of Boca Raton, violated Section 112.3148(4), Florida
Statutes, by accepting a gift with a value in excess of $100 from a lobbyist
who lobbied his agency. The case was
forwarded to the Division of Administrative Hearings for assignment to a
hearing officer on May 12, 1994.
At the final hearing the parties stipulated to the facts set forth in
paragraphs 1 through 7 of Section D of the Prehearing Stipulations and
stipulated that Danciu was at all times pertinent to the Compliant a public
officer or employee subject to the Code of Ethics for Public Officers and
Employees.
At the final hearing, the Advocate called the following witnesses, Alan
Alford, Albert Travasos, and Frank Bartolone and presented the deposition
testimony of Emil Danciu and Robert Sweetapple. Advocate Exhibits 1-38 were admitted in evidence. The Respondent testified on his own
behalf. Respondent Exhibits 1-6 were
admitted in evidence.
At the final hearing, the parties agreed to file proposed recommended
orders by September 7, 1994. No
transcript was filed. The proposed
recommended orders were timely filed.
The parties' proposed findings of fact are addressed in the Appendix to
this Recommended Order.
FINDINGS OF FACT
1. The Respondent, Emil Danciu
(Danciu), served as Mayor of the City of Boca Raton (City) from March 1987
until March 1993.
2. During the time that Danciu
served as Mayor, the Mayor was a voting member of the City Council and acted
with authority equal to that of the other council members.
3. The Boca Raton Community
Development Agency (CRA) is an agency established to revitalize and redevelop
the downtown area of Boca Raton.
4. The CRA is governed by a five
member board of commissioners which, as of February 4, 1991, includes the five
members of the Boca Raton City Council.
5. As Mayor, Danciu was also a
member of the CRA Board of Commissioners.
6. In April, 1992, the majority
of the members of the CRA voted to accept a proposal from Crocker Mizner Park
III, LTD. (Crocker) to lease and construct a department store on property
located in Mizner Park which had been designated for cultural use in the
community redevelopment plan. Danciu,
as Mayor and as a member of the board of the CRA, objected to the proposed
lease to Crocker. Danciu felt that the
CRA's action to enter into the lease was in violation of Chapter 163, Florida
Statutes, because the community redevelopment plan had not been modified as
required by Chapter 163.
7. Danciu went to see Robert
Sweetapple, an attorney, concerning the actions to lease land to Crocker. Mr. Sweetapple agreed with Danciu's
analysis. Danciu advised Mr. Sweetapple
that he wanted a lawsuit filed so that the circuit court could determine the legality
of the actions relating to the lease.
Mr. Sweetapple agreed to represent Danciu in the matter and filed a
Petition for Declaratory Judgement and Injunction against the City and the CRA
in April, 1992. The suit was filed on Danciu's behalf as the Mayor of the City
and as a member of the CRA.
8. Neither the City Council nor
the CRA took action by resolution, ordinance, vote, or any other means to
request that Danciu file the lawsuit.
9. On April 16, 1992, a special
meeting of the CRA was held concerning Mizner Park. The CRA voted to employ legal counsel to defend the CRA against
the lawsuit filed by Danciu.
10. On April 16, 1992, a special
meeting of the Boca Raton City Council was held concerning the lawsuit that had been filed by Danciu. The City Council voted to retain an attorney
to represent the City in the lawsuit.
Separate attorneys were hired for the CRA and for the City in the
defense of the lawsuit filed by Danciu.
11. The City and the CRA filed a
Motion to Dismiss the lawsuit, challenging Danciu's authority to sue in his
official capacity.
12. After Mr. Sweetapple filed
the lawsuit, he went on vacation. While
he was on vacation, Danciu and the City and the CRA were able to negotiate a
settlement of the lawsuit. The lawsuit
was settled prior to a ruling on the Motion to Dismiss. On his return from vacation, Mr. Sweetapple
drafted the settlement agreement.
13. At the April 28, 1992
meeting of the City Council, where the settlement offer was accepted, the issue
of attorney's fees was discussed. The
City had incurred approximately $1,600 in fees and the CRA had incurred
approximately $12,500. Mr. Crocker
offered to pay the $12,500 incurred by the CRA and the $1,600 incurred by the
City. His offer was accepted.
14. On April 30, 1992, the court
dismissed the lawsuit with prejudice based on the stipulation of the
parties. The parties were to bear their
own costs and attorney's fees.
15. Mr. Sweetapple's legal
services relating to the lawsuit was valued at $700.
16. On October 19, 1992, Danciu
filed a Quarterly Gift Disclosure, Form 9, with the Florida Department of
State, reporting Mr. Sweetapple's legal services as a gift.
17. Although Danciu did not
originally intend to file such a disclosure, he made the filing after the City
Attorney advised him to do so.
18. The City has no system for
registration or designation of lobbyists.
19. In 1989 the CRA instituted
an eminent domain action against James Batmasian. Mr. Sweetapple was retained as Mr. Batmasian's attorney. Mr. Sweetapple's representation of Mr.
Batmasian included advancing his client's position at a meeting, and in
telephone conversations, with City Council member Albert Travasos. Mr. Sweetapple also appeared before the CRA
on behalf of Mr. Batmasian within the twelve months preceding the filing of the
Petition for Declaratory Judgement and Injunction which is the subject of the
instant Complaint. The City negotiated
a settlement with Mr. Sweetapple regarding the fees to be paid him in the
eminent domain suit involving Mr. Batmasian.
CONCLUSIONS OF LAW
20. 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").
21. 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 DCA 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 Danciu violated
Sections 112.3148(4), Florida Statutes.
Therefore, the burden of establishing the elements of Danciu's alleged
violation is on the Commission.
22. Section 112.3148(4), Florida
Statutes, provides:
(4) A reporting
individual or procurement
employee or any other person on his behalf is
prohibited from knowingly accepting, directly
or indirectly, a gift from a political committee
or committee of continuous existence as defined
in s. 106.11, or from a lobbyist who lobbies the
reporting individual's or procurement employee's
agency, or directly or indirectly on behalf of
the partner, firm, employer, or principal of a
lobbyist, if in excess of $100; however, such a
gift may be accepted by such person on behalf of
a governmental entity or charitable organization,
the person receiving the gift shall not maintain
custody of the gift for any period of time beyond
that reasonably necessary to arrange for the
transfer of custody and ownership of the gift.
23. Danciu has stipulated that
at all times pertinent to this Complaint, he was a public officer or employee
and therefore subject to the Code of Ethics for Public Officers and
Employees. Danciu, as Mayor, was a
reporting individual as that term is defined in Section 112.3148(2)(d), Florida
Statutes.
24. The gift of legal services
was valued in excess of $100.
25. Section 112.3148(2)(b),
Florida Statutes, defines "lobbyist" as follows:
[A]ny natural person who, for compensation,
seeks, or sought during the preceding 12 months,
to influence the governmental decision making
of a reporting individual or procurement employee
or his agency or seeks, or sought during the
preceding 12 months, to encourage the passage,
defeat, or modification of any proposal or
recommendation by the reporting individual or
procurement employee or his agency. With respect
to an agency that
has established by rule,
ordinance, or law a registration or designation
process for persons seeking to influence decision
making or to encourage the passage, defeat, or
modification of any proposal or recommendation
by such agency or an employee or official of the
agency, the term "lobbyist" includes only a
person
who is required to be registered or otherwise
designated as a lobbyist in accordance with such
rule, ordinance, or law or who was during the
preceding 12 months
required to be registered
or otherwise designated as a lobbyist in accordance
with such rule, ordinance, or law.
26. Mr. Sweetapple was a
lobbyist as that term is defined in Section 112.3148(2)(b), Florida
Statutes. During the twelve months
preceding the filing of the Petition for Declaratory Judgement and Injunction,
Mr. Sweetapple, for compensation, sought to influence the decision making of
the CRA regarding the valuation of the property of James Batmasian.
27. The Advocate has established
that Danciu did accept a gift in excess of $100 from a lobbyist. The Advocate has established that Danciu
knew that Mr. Sweetapple had sought to influence the decisions of the Danciu's
agencies during the twelve months preceding the filing of the lawsuit and that
Danciu knew that neither the City nor the CRA had given him the authority to
either file the lawsuit or to retain counsel to represent Danciu in his
official capacity, the City or the CRA.
28. Danciu argues that the
acceptance of the legal services was not in violation of Section 112.3148(2)(b)
because the legal services were accepted on behalf of the City and the
CRA. Danciu's argument is without
merit. It is clear that neither the
City nor the CRA authorized Danciu as Mayor or as a member of the CRA to file a
lawsuit against the City or the CRA.
Nor is there evidence to support a finding that either the City or the
CRA authorized Danciu to retain counsel to bring such a lawsuit. Thus, Danciu was without authority to accept
a gift of legal services on behalf of
the City or the CRA. In CEO 91-71, the
Commission opined that the provision of legal services at no charge by the
partner of an attorney who lobbies a county commission in the successful
defense of a recall petition filed against a member of the commission is not
prohibited by Section 112.3148(4) because the member would be entitled to public reimbursement for the cost of the
services. The instant case differs from
the circumstances set forth in CEO 91-71 because in the instant case, Danciu
was not defending an action against him in his official capacity, but was suing
his own agencies. Danciu had no
authority to bring the suit and no authority to retain counsel on behalf of the
City or the CRA. Having no authority to
bring the lawsuit or to retain counsel,
Danciu could not have obligated the City or the CRA to pay the attorney
retained by Danciu. If neither the City
nor the CRA would have been obligated to pay Mr. Sweetapple's fees, it is
obvious that the provision of free legal services was not a gift to the City or
the CRA. Additionally, there was no
benefit to the City or to the CRA for free legal services of the attorney who
is bringing a lawsuit against the City and the CRA, which challenges the
positions taken by a majority of the City Council and the CRA. In fact, both the City and the CRA had to
retain outside counsel to defend against Danciu's lawsuit.
29. The Advocate has established
that Danciu violated Section 112.3148(4), Florida Statutes.
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
Emil Danciu violated Section 112.3148(4), Florida Statutes, and that a civil
penalty of $1000 be imposed.
DONE AND ENTERED this 15th day of November, 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 15th day of November, 1994.
APPENDIX TO RECOMMENDED
ORDER, CASE NO. 94-2641EC
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.
Paragraph 1: Accepted in
substance.
2.
Paragraph 2: Rejected as
unnecessary.
3.
Paragraph 3: Accepted.
4.
Paragraph 4: Accepted in
substance.
5. Paragraph 5: Accepted.
6.
Paragraph 6: Accepted in
substance.
7.
Paragraph 7: Rejected as
subordinate to the facts
actually found.
8.
Paragraph 8: Accepted in
substance.
9.
Paragraph 9: The last sentence
is rejected as
unnecessary. The remainder of
the paragraph is accepted
in substance.
10.
Paragraph 10: Rejected as
unnecessary.
11.
Paragraph 11: The first sentence
is accepted in
substance. The remainder is
rejected as unnecessary.
12.
Paragraph 12: Accepted in substance.
13.
Paragraph 13: Rejected as subordinate to the facts
actually found.
14.
Paragraphs 14-15: Accepted in
substance.
15.
Paragraph 16: The first three sentences are rejected as
unnecessary. The remainder is
rejected as constituting
argument.
16.
Paragraphs 17-19: Accepted in
substance.
17.
Paragraph 20: The first two sentences are
accepted in substance. The
remainder is
rejected as recitation of testimony.
18.
Paragraphs 21-25: Accepted in
substance.
19.
Paragraphs 26-27: Rejected as
constituting argument.
20.
Paragraph 28: Accepted in substance.
21.
Paragraphs 29-30: Rejected as
constituting argument.
22.
Paragraph 31: Rejected as
unnecessary.
23.
Paragraph 32: Accepted in
substance.
24.
Paragraph 33: Rejected as
unnecessary.
25.
Paragraphs 34-35: Accepted in
substance.
26.
Paragraphs 36-40: Rejected as
unnecessary.
27.
Paragraph 41: Rejected as
constituting argument.
Respondent's Proposed Findings of
Fact.
Respondent did not designate which
portion of the proposed recommended order constituted findings of fact or
conclusions of law; thus, I cannot address Respondent's findings of fact.
COPIES FURNISHED:
Virlindia Doss, Esquire
Advocate For the Florida
Commission on Ethics
Alexander Building, Suite 208
Koger Executive Center
Tallahassee, Florida 32399-1050
Carrie Stillman
Complaint Coordinator
Commission on Ethics
Post Office Box 15709
Tallahassee, Florida 32317-5709
Jeff Brown, Esquire
Sanctuary Centre, Suite D300
4800 North Federal Highway
Post Office Box 3004
Boca Raton, Florida 33431-5178
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
Tallahassee, 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.