STATE OF FLORIDA
DIVISION OF
ADMINISTRATIVE HEARINGS
IN RE: JIM MCCULLOUGH )
) CASE
NO. 96-5799EC
Respondent. )
________________________________)
RECOMMENDED ORDER
Pursuant to notice,
the Division of Administrative Hearings, by its duly designated Administrative
Law Judge, Carolyn Holifield, held a formal hearing in this case on March 7,
1997, in Mexico Beach, Florida.
APPEARANCES
Advocate: Eric S. Scott
Assistant Attorney
General
Attorney General's
Office
PL-01, The Capitol
Tallahassee,
Florida 32399-1050
For
Respondent: Jim McCullough
Post Office Box 13250
Mexico Beach,
Florida 32410
STATEMENT OF THE
ISSUE
Whether Respondent
violated Sections 112.4143(3)(a), and (4), Florida Statutes (Supp.
1994), by committing the acts alleged in the Order Finding Probable Cause and,
if so, what penalty is appropriate.
PRELIMINARY
STATEMENT
On October 15,
1996, the Florida Commission on Ethics (Commission) entered an Order Finding
Probable Cause to believe that Respondent, Jim McCullough (Respondent), while
serving on the Mexico Beach Planning and Zoning Board violated Sections
112.3143(3)(a), Florida Statutes (Supp. 1994), by failing to properly
disclose and file a memorandum regarding his conflict of interest; and Section
112.3143(4), Florida Statutes (Supp. 1994), by discussing a proposed
rezoning issue without disclosing his conflict of interest. On November 25, 1996, this case was
forwarded to the Division of Administrative Hearings for assignment of an
administrative law judge to conduct the hearing and to prepare a recommended
order.
Before the formal
hearing, the parties stipulated to facts which were admitted without proof at
the hearing. The Advocate called one
witness, Respondent, Jim McCullough.
Respondent testified on his own behalf and called three witnesses: John
McInnis, Garry Gaddis, and Melvin Ashcraft.
The parties stipulated to the introduction of six joint exhibits. The proceeding was recorded but not
transcribed.
FINDINGS OF FACT
1. All
times pertinent to this proceeding, Respondent served as a member of the Mexico
Beach Planning and Zoning Board (Zoning Board). Respondent began his service on the Board in mid-March,
1995. In that public position,
Respondent was subject to the requirements of Part III, Chapter 112, Florida
Statutes, the Code of Ethics for Public Officers and Employees.
2. Respondent
owns and operates a marina in Mexico Beach, Florida which he sought to
expand. To accomplish the expansion,
Petitioner needed to purchase certain parcels of property adjacent to his
marina and have the parcels rezoned from single family residential to tourist
commercial. If the Zoning Board granted
the rezoning request, Respondent planned to buy the land and expand his
business.
3. The
Zoning Board is empowered to make decisions relative to the zoning or rezoning
of property in Mexico Beach, Florida.
Thus, on June 12, 1995, Respondent presented to the Board a request to
rezone certain parcels of property adjacent to his marina from single family
residential to tourist commercial.
4. Respondent
participated in the Zoning Board's discussion on the matter. However, prior to his participation in the
discussion, Respondent failed to formally announce his interest of the matter.
5. Respondent
failed to file a written memorandum disclosing his interest in the matter prior
to the June 12, 1995, Board meeting.
6. Respondent
also failed to make an oral disclosure of his interest in the matter at the
June 12, 1995 Board meeting.
7. Respondent
abstained from voting on the rezoning request on June 12, 1995, but did not
file a Memorandum of Voting Conflict with respect to the rezoning request
within fifteen days of that meeting.
8. The
matter was reheard by the Board on August 1, 1995. At that time, Respondent again made a presentation and requested
that the Zoning Board rezone the property adjacent to his marina. Following his
presentation, Respondent also participated in the Zoning Board's discussion of
the matter. Respondent's objective in
participating in the discussion was to persuade the Zoning Board to grant the
rezoning request. However, prior to his
participating in the Zoning Board's discussion, Respondent failed to formally
announce his interest in the matter.
9. Respondent
did not file a written memorandum prior to the August 1, 1995, Zoning Board
meeting disclosing his interest in the matter.
10. On
August 1, 1995, Respondent abstained from voting on the rezoning request, but
did not file a written memorandum disclosing his interest in the rezoning
request within fifteen days of the Zoning Board meeting.
11. Respondent
filed a Form 8B, Memorandum of Voting Conflict with respect to the rezoning
matter, but did not do so until August 24, 1995.
CONCLUSIONS OF LAW
12. The
Division of Administrative Hearings has jurisdiction over the parties and the
subject matter of thisproceeding.
Section 120.57(1), Florida Statutes.
13. 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).
14. The
burden of proof, absent a statutory directive to the contrary, is on the party
asserting the affirmative of the issue of the proceedings. Department of Transportation v. J.W.C. Co.,
Inc., 396 So.2d 778 (Fla. 1st DCA 1981); Balino v. Department of Health
and Rehabilitative Service, 348 So.2d 349 (Fla. 1st DCA 1977). In this proceeding, the Commission, through
its Advocate, is asserting the affirmative: that the Respondent violated
Sections 112.3143(3)(a) and, 112.3143(4), Florida Statutes (Supp.
1994). Therefore, the Commission must
establish by a preponderance of the evidence the elements of Respondent's
alleged violations.
15. It
has been alleged that Respondent violated Section 112.3143(4), Florida
Statutes (Supp. 1994), by participating in a matter which would inure to
his private gain without properly disclosing the nature of his interest and the
nature of the conflict. Section
112.3143(4), Florida Statues (Supp. 1994), provides:
No appointed public
officer shall participate in any matter which would inure to the officer's
special private gain or loss; which the officer knows would inure to the special
private gain or loss of any principal by whom he is retained or to the parent
organization or subsidiary of a corporate principal by which he is retained; or
which he knows would inure to the special private gain or loss of a relative or
business associate of the public officer, without first disclosing the
nature of his interest in the matter.
(a) Such
disclosure, indicating the nature of the conflict, shall be made in a
written memorandum filed with the person responsible for recording the
minutes of the meeting, prior to the meeting in which consideration of the
matter will take place, and shall be incorporated into the minutes. Any such memorandum shall become a public
record upon filing, shall immediately be provided to the other members of the
agency, and shall be read publicly at the next meeting held subsequent to the
filing of this written memorandum.
(Emphasis supplied.)
16. The term participation is defined by Section
112.3143(4), Florida Statutes (Supp. 1994), as follows:
(c) For
purposes of this subsection, the term "participate" means any attempt
to influence the decision by oral or written communication, whether made by the
officer or at his direction.
17. In
order for it to be concluded that the Respondent violated Section 112.3143(4), Florida
Statutes (Supp. 1994), as alleged, the Advocate must establish the
following elements:
1. Respondent must have been an
appointed public officer.
2. The Respondent must
have participated in a matter which would have inured to the
Respondent's own special private gain without first disclosing the nature of
his interest in the matter.
3. The Respondent must have
failed to properly file a written memorandum indicating the nature of his
conflict prior to the meeting at which the matter was to be considered.
18. The
parties have stipulated that the Respondent, Jim McCullough, as a member of the
Zoning Board, was subject to the requirements of Part III, Chapter 112, Florida
Statutes.
19. To establish a violation of Section
112.3143(4)(a), Florida Statutes (Supp 1994), it must next be
established that Respondent participated in a discussion as a member of the
Zoning Board that inured to his special private gain without disclosing the
nature of his interest.
20. It
is undisputed that Respondent participated in the Board's discussions regarding
his rezoning requests on June 12 and August 1, 1995. The matters discussed inured to the Respondent's special private
gain because he planned to purchase the property if it were rezoned in order to
expand his marina.
21. Next,
to establish a violation of Section 112.3143(4)(a), Florida Statutes
(Supp. 1994), it must be proven that Respondent failed to file a written
memorandum indicating the nature of his conflict prior to the meeting at which
the matter was to be considered.
22. The
evidence established that Respondent failed to properly disclose the nature of
his interests in the matters being discussed.
Respondent neither orally disclosed his conflict nor filed a written
memorandum prior to the meeting. In
this case, Respondent reasonably believed that all members of the Zoning Board
knew that he owned the marina adjacent to the property that was being
considered for rezoning. Likewise,
Respondent explained at the meeting that the purpose of seeking the rezoning
was to allow him to expand his business.
Based on Respondent's presumption that everyone knew he would receive a
special benefit if the rezoning request were granted and his understanding of
his legal obligations in this situation, Respondent failed to properly disclose
his interest as required by Section 112.3143(4)(a), Florida Statutes
(Supp. 1994).
23. Notwithstanding,
Respondent's subjective understanding of what he was required to do in this
instance, the requirements of Section 112.3143(4)(a), Florida Statutes
(Supp. 1994), are mandatory.
Accordingly, where Respondent stood to inure a special benefit from the
matters being considered by Zoning Board, prior to his participating in any
discussion of the matter, he was obligated (1) to disclose such interest and,
(2) to properly file a written memorandum indicating the nature of his
conflict. His failure to do so,
regardless of his intent or rationale for not doing so, constitutes a violation
of Section 112.3143(4)(a), Florida Statutes (Supp. 1994).
24. The Advocate for the Commission has
established each of the requisite elements and, thus has proven that Respondent
violated Section 112.3143(4)(a), Florida Statutes (Supp. 1994).
25. It is further alleged that Respondent violated
Section 112.3143(3)(a), Florida Statutes (Supp. 1994), by (1) failing to
properly disclose the nature of his interest in the matter from which he was
abstaining from voting; and (2) failing to properly disclose and file within
fifteen days after the vote occurs, the nature of his interest.
26. Section
112.3143(3)(a), Florida Statutes (Supp. 1994), provides:
No county,
municipal, or other local public officer shall vote in an official capacity
upon any measure which would inure to his or special private gain or loss;
which he or she knows would inure to the special private gain or loss of any
principal by whom he or she is retained or to the parent organization or
subsidiary of a corporate principal by which he or she is retained, other than
an agency as defined in s. 112.312(3); or which he or she knows would inure to
the special private gain or loss 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 or she is abstaining from voting
and, within 15 days after the vote occurs, disclose the nature of his or her
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.
27. In
order for it to be concluded that the Respondent violated Section 112.3143(3)(a),
Florida Statutes (Supp. 1994), the Advocate must establish the following
elements:
1. The Respondent must have been
a county, municipal or other local public officer serving on a collegial body.
2. The Respondent must have voted
in his or her official capacity on a measure which would have inured to the
Respondent's own special private gain or loss.
or
3. When abstaining from a vote
because of a conflict, the Respondent, prior to the vote being taken, must have
failed to publicly state to the assembly the nature of his or her interest in
the matter in which he is abstaining.
and
4. After abstaining from a vote
because of a conflict, the Respondent failed to disclose the nature of his or
her interest in the measure in a memorandum filed within 15 days after the vote
occurred with the person responsible for recording the minutes of the meeting
at which the vote occurred.
28. With
regard to the first element, the parties have stipulated that the Respondent,
as a member of the Zoning Board, was subject to the requirements of Part III,
Chapter 112, Florida Statutes (Supp. 1994).
29. To prove a violation of Section
112.3143(3)(a), Florida Statutes (Supp. 1994), the Advocate must next
establish that Respondent failed to publicly state to the assembly the nature
of his interest in the matter from which he was abstaining from voting. In this case, Respondent assumed that it was
common knowledge that he owned the marina adjacent to the property that was
being considered for rezoning. Based on
this perception, Respondent failed to publicly state to the assembly the nature
of his interest in the matter from which he was abstaining from voting. By Respondent's admission, the Advocate has
established the second element required to prove a violation of Section
112.3143(3)(a), Florida Statutes (Supp. 1994).
30. The third element that must be proven to
establish a violation of Section 112.3143(3)(a), Florida Statutes, is
that Respondent, after abstaining from voting on a matter inuring to his
special benefit, failed to file a memorandum disclosing the nature of his
conflict within fifteen days after the vote occurred.
31. The evidence at hearing established that the
Zoning Board voted on the rezoning matter on August 1,
1995. Moreover, it is undisputed that Respondent abstained from the
voting on the rezoning of the property adjacent to his marina, Respondent
failed to file his memorandum disclosing his interest within fifteen days after
the vote occurred. Respondent filed a
memorandum disclosing the nature of his interest in the matter from which he
was abstaining from voting on August 24, 1996, and not within the statutorily
prescribed timeframe.
32. Having established each of the required
elements, the Advocate has proven that Respondent violated Section
112.3143(3)(a), Florida Statutes (Supp. 1994).
RECOMMENDATION
Based on the
foregoing Findings of Fact and Conclusions of Law, it is recommended
that Final Order and Public Report be entered by the Florida Commission on
Ethics finding that Respondent, Jim McCullough, violated Sections 112.3143(4)
and 112.3143(3)(a), Florida Statutes (Supp. 1994), and imposing a civil
penalty of $200.00.
DONE and ENTERED this 24th day of
April 1997, in Tallahassee, Florida.
___________________________________
CAROLYN S. HOLIFIELD
Administrative Law
Judge
Division of
Administrative Hearings
The DeSoto Building
1230 Apalachee Parkway
Tallahassee,
Florida 32399-3060
(904) 488-9675 SUMCOM 278-9675
Fax Filing (904) 921-6847
Filed with the Clerk of the
Division of
Administrative Hearings
this 24th day of April
1997.
Copies Furnished:
Eric Scott
Assistant Attorney
General
Attorney's
General's Office
The Capitol PL-01
Tallahassee,
Florida 32399-1050
Kerrie Stillman
Complaint
Coordinator
Florida Commission
on Ethics
Post Office Box
15709
Tallahassee,
Florida 32317-5709
Mr. Jim McCullough
105 North 36th
Street
Mexico Beach,
Florida 32410
Bonnie Williams
Executive Director
Florida Commission
on Ethics
Suite 101
2822 Remington
Green Circle
Post Office Drawer
15709
Tallahassee,
Florida 32317-5709
Phil Claypool
General Counsel
Florida Commission
on Ethics
Suite 101
2822 Remington
Green Circle
Post Office Drawer
15709
Tallahassee,
Florida 32317-5709
All parties have
the right to submit written exceptions within 15 days from the date of this
recommended order. Any exceptions to
this recommended order should be filed with the agency that will issue the
final order in this case.