STATE OF FLORIDA
DIVISION OF
ADMINISTRATIVE HEARINGS
IN RE: JAMES NAUS )
) CASE
NO. 96-5800EC
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
For Advocate: Eric S. Scott
Assistant Attorney General
Attorney General's
Office
PL-01, The Capitol
Tallahassee,
Florida 32399-1050
For
Respondent: James Naus
Post Office Box 13126
Mexico Beach,
Florida 32410
STATEMENT OF THE
ISSUE
Whether Respondent
violated Sections 112.3143(3)(a), 112.3143(4), and 112.313(7)(a), Florida
Statutes (1993), 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, James Naus (Respondent), while
serving on the Mexico Beach Planning and Zoning Board violated Sections
112.3143(3)(a), Florida Statutes (1993), by failing to properly disclose
and file a memorandum regarding his conflict; Section 112.3143(4), Florida
Statutes (1993), by participating in a matter in which he had an interest
without disclosing his interest; and Section 112.313(7)(a), Florida Statutes
(1993), by representing a private
client before the Board on which Respondent served. 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
(1) witness, Respondent, James Naus.
Respondent, testified on his own behalf and called one (1) witness:
Garry Gaddis. The parties stipulated to
the introduction of five (5) joint exhibits.
The proceeding was recorded but not transcribed. Both parties filed proposed recommended
orders.
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-April,
1994. 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. In
late 1993, Respondent contracted with the owners of Toucans Restaurant
(Toucans) to build an additional story on the existing building. Toucans is a bar/restaurant located on
Highway 98 in Mexico Beach, Florida.
3. The
Zoning Board is empowered to make decisions relative to zoning and rezoning
matters, including the granting of parking variances.
4. In
furtherance of his work for Toucans, Respondent sought a parking variance from
the Zoning Board. To this end,
Respondent appeared before the Zoning Board on three separate occasions.
5. The
last time Respondent appeared before the Zoning Board regarding the parking
variance for Toucans was April 19, 1994, shortly after his appointment to the
Zoning Board. At that meeting,
Respondent was representing Toucans before the Zoning Board and attempting to
secure a parking variance for Toucans.
6. At
the April 19, 1994 meeting, when Respondent presented the Toucans parking
variance issue before the Zoning Board, he participated in the Zoning Board's
discussion of the matter.
7. Prior
to his participating in the Zoning Board's discussion of the Toucans matter on
April 19, 1994, Respondent failed to formally announce his interest in the
Toucan project.
8. Respondent
failed to file a written memorandum disclosing his interest in the matter prior
to the April 19, 1994 meeting.
9. Respondent
failed to orally disclose the nature of his interest in the Toucans project at
the April 19, 1994 Zoning Board meeting.
10. At
its April 19, 1994 meeting, the Zoning Board voted on the Toucans project. Respondent abstained from voting on the
Toucans parking variance request at that meeting, but did not file a written
memorandum disclosing his interest in the project within fifteen days of the
vote.
11. Respondent
filed a Memorandum of Voting Conflict with respect to the Toucans parking
variance request on May 27, 1994.
CONCLUSIONS OF LAW
12. The
Division of Administrative Hearings has jurisdiction over the parties and the
subject matter of this proceeding.
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 in 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 (1993). The Commission must establish by clear and
convincing evidence the elements of Respondent's alleged violations. Gary D. Latham v. Florida Commission on
Ethics, No. 96-1224 (Fla. 1st DCA) April 23, 1997.
15. It
has been alleged that Respondent violated Section 112.3143(4), Florida
Statutes (1993), 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 (1993), provides:
No appointed public
officer shall participate in any matter which would inure to his special
private gain;
which he knows would inure to the special private gain 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 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 "participate" is defined by
Section 112.3143(4)(c), Florida Statutes (1993), 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 (1993), 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, James Naus, 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), Florida Statutes (1993), 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. Respondent
admitted participating in the Zoning Board's discussion of the Toucans parking
variance matter on April 19, 1994. The
actual construction of the proposed addition to Toucans was subject to the
Zoning Board's granting the parking variance.
Therefore, approval of the Toucans parking variance request would inur
to Respondent's special private gain because of his contractual relationship
with the owner of Toucans to build an additional story on the restaurant.
21. Next,
to establish a violation of Section 112.3143(4), Florida Statutes
(1993), it must be proven that, prior to participating in the Zoning Board's
discussion of the Toucans parking variance issue, Respondent failed to disclose
the nature of his interest in the matter.
Such disclosure is required to be made (1) in a written memorandum filed
with the person responsible for recording the minutes of the meeting prior to
the meeting at which the matter will be considered; or (2) orally at the
meeting when it becomes known that a conflict exists. Section 112. 3143(4)(a) and (b), Florida Statutes (1993).
22. The
uncontroverted evidence established that Respondent failed to properly disclose
the nature of his interest in the Toucans project prior to participating in the
Zoning Board's discussion of the matter on April 19, 1994. Respondent neither filed a written
memorandum indicating the nature of his conflict prior to the meeting at which
the matter was to be considered nor did he orally disclose the conflict at the
meeting when it became known that such conflict existed as required by Section
112.3143(4)(a) and (b), Florida Statutes (1993).
23. The Advocate for the Commission has
established by clear and convincing evidence each of the requisite elements and,
thus has proven that Respondent violated Section 112.3143(4), Florida
Statutes (1993).
24. 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 a
memorandum regarding the nature of his interest within fifteen days of the
vote.
25. Section
112.3143(3)(a), Florida Statutes (1993), 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; which he
knows would inure to the special private gain of any principal by whom he or
she is retained or to the parent organization or subsidiary of a corporate
principal by which he 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 is abstaining from voting and, within fifteen 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.
26. In
order for it to be concluded that the Respondent violated Section
112.3143(3)(a), Florida Statutes (1993), 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.
27. 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 (1993).
28. To prove a violation of Section
112.3143(3)(a), Florida Statutes (1993), 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. The Advocate established by clear and
convincing evidence that Respondent failed to publicly comply with this statutory
prescription. Thus, the Advocate has
established the second element required to prove a violation of Section
112.3143(3)(a), Florida Statutes (1993).
29. 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.
30. The evidence at hearing established that the
Zoning Board voted on the Toucans parking variance request on April 17,
1994. Furthermore, it is undisputed
that Respondent abstained from voting on the Toucan matter and, after doing so,
also failed to file a 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 abstained from voting, but not within the statutorily prescribed
timeframe. Respondent filed a
Memorandum of Voting Conflict on May 27, 1994.
31. Having established each of the required
elements by clear and convincing evidence, the Advocate has proven that
Respondent violated Section 112.3143(3)(a), Florida Statutes (1993).
32. It
has been further alleged that Respondent violated Section 112.313(7)(a), Florida
Statutes (1993), by representing a client before the Zoning Board on which
Respondent has served. Section
112.313(7)(a), Florida Statutes (1993) provides the following:
CONFLICTING
EMPLOYMENT OR CONTRACTUAL RELATIONSHIP.
(a) No
public officer or employee of an agency shall have or hold any employment or
contractual relationship with any business entity or any agency which is
subject to the regulation of, or is doing business with, an agency of which he
is an officer or employee, excluding those organizations and their officers
who, when acting in their official capacity, enter into or negotiate a
collective bargaining contract with the state or any municipality, county, or
other political subdivision of the state; nor shall an officer or employee of
any agency have or hold any employment or contractual relationship that will
create a continuing or frequently recurring conflict between his private interests
and the performance of his public duties or that would impede the full and
faithful discharge of his public duties.
33. In
order for it to be concluded that the Respondent violated Section
112.313(7)(a), Florida Statutes, the Advocate must establish the following elements:
1. The
Respondent must have been a public officer or employee.
2. The
Respondent must have been employed by or have had a contractual relationship
with a business entity or an agency.
3. Such
business entity must have been subject to the regulation of, or doing business
with, the agency of which the Respondent was an officer or employee.
OR
4. Respondent's
employment or contractual relationship with the business entity or agency will
(a) create a continuing or frequently recurring conflict between the
Respondent's private interest and the performance of the Respondent's public
duties; or (b) impede the full and faithful discharge of the Respondent's
public duties.
34. The
parties have stipulated that the Respondent, as a member of the Mexico Beach
Planning and Zoning Board, was subject to the requirements of Part III, Chapter
112, Florida Statutes (1993).
Therefore, the first element necessary to prove a violation of Section
112.313(7)(a), Florida Statutes (1993), has been established.
35. It
must next be established that Respondent had a contractual or employment
relationship with a business entity or agency.
In the instant case, the parties stipulated to the fact that Respondent
had a contractual relationship with Toucans.
Thus, the second element necessary to prove a violation of Section
112.313(7)(a), Florida Statutes (1993), has been established.
36. To
prove a violation of Section 112.313(7)(a), Florida Statutes (1993), the
Advocate must establish that the business entity with which Respondent has a
contractual relationship is subject to regulation by the Zoning Board on which
Respondent serves.
37. In
this case, the evidence clearly established that the Zoning Board was the
governmental body empowered to grant parking variances. The
construction of the proposed addition to Toucans was subject to and conditioned
upon the Zoning Board's granting a parking variance. Thus, the Advocate has established by clear and convincing
evidence that Toucans was regulated by the Zoning Board.
38. A
violation of Section 112.313(7)(a), Florida Statutes (1993), is likewise
proven if it is established that Respondent's contractual relationship with
Toucans will impede the full and faithful discharge of his public duties. In this case, Respondent had a contractual
relationship with Toucans and represented that client before the Zoning Board
for the purpose of seeking a parking variance.
By representing a client before the Zoning Board on which he served,
Respondent's independence and impartially were jeopardized; Respondent was
given an undeniable advantage over other members of his profession or
occupation in such matters; and strongly presented the appearance of public
office being used for private gain.
39. The
Advocate has established by clear and convincing evidence that Respondent
violated Section 112.313(7)(a), Florida Statutes (1993).
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 McCoullough, violated Sections
112.3143(3)(a), 112.3143(4) and 112.313(7)(a), Florida Statutes (1993),
and imposing a civil penalty of $300.00.
DONE and ENTERED
this 30th 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 30th day of April
1997.
Copies Furnished:
Eric Scott, Esquire
Department of Legal
Affairs
The Capitol PL-01
Tallahassee,
Florida 32399-1050
Kerrie Stillman
Complaint
Coordinator
Florida Commission
on Ethics
Post Office Drawer
15709
Tallahassee,
Florida 32317-5709
Mr. James Naus
115 Fifth Street
Mexico Beach,
Florida 32410
Bonnie Williams
Executive Director
Florida Commission
on Ethics
Post Office Drawer
15709
Tallahassee,
Florida 32317-5709
Phil Claypool
General Counsel
Florida Commission
on Ethics
Post Office Drawer
15709
Tallahassee,
Florida 32317-5709
NOTICE OF RIGHT TO
SUBMIT EXCEPTIONS
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.