STATE OF FLORIDA
DIVISION OF
ADMINISTRATIVE HEARINGS
IN RE: DENNIS WARDLOW, )
) Case
No. 97-3777EC
Respondent. )
__________________________________)
RECOMMENDED ORDER
Pursuant to notice,
a formal hearing was held in this case on April 23, 1998, at Tallahassee,
Florida, before Susan B. Kirkland, a duly designated Administrative Law Judge
of the Division of Administrative Hearings.
APPEARANCES
Advocate: Eric S. Scott, Esquire
Office of the Attorney
General
Florida Commission on Ethics
The Capitol, Plaza 01
Tallahassee, Florida 32399-1050
For
Respondent: Michael Halpern, Esquire
Michael Halpern, P.A.
209 Duval Street
Key West, Florida 33040
Mel Black, Esquire
2937 Southwest 27th Avenue
Miami, Florida 33133
STATEMENT OF THE
ISSUES
Whether Respondent
violated Sections 112.313(2), (4), (6) and (7)(a), 112.3143(3), and 112.3145,
Florida Statutes, and if so, what penalty should be recommended.
PRELIMINARY
STATEMENT
On July 22, 1997,
the Florida Commission on Ethics entered an Order Finding Probable
Cause to believe that Respondent,
Dennis Wardlow, as mayor of the City of Key West, violated Sections 112.313(2),
(4), (6) and (7)(a), 112.3143(3), and 112.3145, Florida Statutes. On August 12, 1997, the case was forwarded
to the Division of Administrative Hearings for assignment to an administrative
law judge. The final hearing was
scheduled for December 3 and 4, 1997.
On November 5, 1997, Respondent filed a Motion for Continuance, which
was granted, and the final hearing was rescheduled for April 23 and 24, 1998.
The parties entered
into a prehearing stipulation, agreeing to the facts contained in paragraphs 1-22
of Section E of the Joint Prehearing Stipulation.
At the final
hearing, the Advocate called Lisa Ann Macy as his witness, and the Respondent
testified in his own behalf. Joint
Exhibits 1-32 and 34-40 were admitted in evidence. Respondent's Exhibits 1-6 were admitted in evidence.
The parties agreed
to file proposed recommended orders within twenty days of the date of the
filing of the transcript. The
transcript was filed on April 30, 1998.
The parties timely filed their proposed recommended orders.
FINDINGS OF FACT
1. Respondent, Dennis Wardlow (Wardlow), served
as mayor of the City of Key West from 1991 until 1997. In that public position, Wardlow was subject
to the requirements of Part III, Chapter 112, Florida Statutes, the Code of
Ethics for public officers and employees.
2. In March 1991 Lisa Macy began operating a
business at Smathers Beach in Key West.
The business was known as Jammin' Jim's Wave Runners. John Bigler (Bigler), a lawyer in Key West
and boyfriend of Ms. Macy, went into the jet ski rental business with Ms. Macy
during the early fall of 1992. The new
business was named Warren Watersports, Inc., d/b/a Ridley Turtle Watersports.
3. In addition to being a lawyer, Bigler was a
retired Navy Captain and JAG officer.
He was involved in a partnership that owned a mini-warehouse in the Keys
and was in the business of leasing an airplane to law firms under the name of
Legal Eagles.
4. On or about October 13, 1992, Wardlow
entered into a letter of agreement with Bigler to provide consulting services
to Warren Watersports. The written
agreement stated that Wardlow was being retained as a public relations
consultant under the following terms:
1. You will be provided a weekly expense
account of $100.00 per week commencing Friday, October 16, 1992, for a minimum
period of six (6) months from the date hereof.
2. You will be paid a success fee of $5,000
each, payable at the rate of $100.00 per week upon the award of an exclusive
wave runner concession for a period of not less than three (3) years by the
Hyatt Hotel at Key West, by the Holiday Inn Beachside, and/or the Galleon
Marina, or any of them.
3. You will not compete with and/or divulge any
trade secrets and/or plans of the company for a period of six (6) months should
this relationship be terminated for any reason.
5. According to Wardlow, he was supposed to
solicit the hotels and the marina for a concession for Warren Watersports. After signing the agreement and thinking
about it, he decided that, as mayor, it would be a conflict for him to solicit
the hotels because it might be considered that he was trying to use his
official position as mayor to influence the businesses to grant a concession to
Warren Watersports. However, Wardlow
did not terminate his contract with Bigler nor did he amend the written
agreement.
6. As a result of his association with Bigler
and Warren Watersports, Wardlow was paid $100 per week from October 1992 until
April 22, 1994. The total amount
received from Bigler and Warren Watersports was $7,900.
7. Ms. Macy was upset when she learned that
Bigler had agreed to pay Wardlow $100 a week.
She felt that it was an unnecessary expense for the business.
8. Bigler personally delivered the checks to
Wardlow each week.
9. Ms. Robin Downing worked as a bookkeeper for
Bigler from April 1993 to September 1994.
She handled the books for Bigler's businesses, including Warren
Watersports. Over the period of time
that Ms. Downey worked for Bigler, the business at Warren Watersports declined,
and there were times when Warren Watersports had difficulty making
payroll. However, it was Bigler's
policy that payment to Wardlow would be made first. At times when Warren Watersports could not make payroll, Wardlow
was the only person who received a check.
10. Ms. Downing did not know what Wardlow did as
a consultant for Warren Watersports.
11. Ms. Judy McGill worked full time as a legal
secretary for Bigler from July 1992 to September 1994. In April 1993, Ms. McGill became signatory on Bigler's office accounts,
including Warren Watersports. She
signed only three checks to Wardlow during her employment and refused to sign
the other checks to Wardlow even though she was aware that it was Bigler's
desire that Wardlow's check go out each week without fail.
12. Ms. McGill did not know what work Wardlow
did for Warren Watersports. In
approximately March or April of 1994,
Ms. McGill spoke with Wardlow on the telephone concerning the weekly
checks, and Wardlow stated that he "wished that John would quit doing
this."
13. Dan Bosco, the manager for Warren
Watersports, never saw Wardlow at any of the places where Warren Watersports
was operating. Mr. Bosco was not aware
of anything that Wardlow did for the business except make a short speech at the
company's Christmas party.
14. Soon after Wardlow began working for Warren
Watersports, Wardlow was approached by Bigler who said that he had been cited
by Code Enforcement for a violation and he wanted Wardlow to get it
"straightened out." Wardlow
contacted Gene Favors, a Key West Enforcement Officer, and helped resolve the
problem.
15. On several occasions Bigler approached Felix
Cooper, the Key West City Manager, to discuss Bigler's desire to have a
franchise from the City of Key West for a sales booth for his jet ski rental
business on the beach at Smathers Beach and to erect a sign on the beach with
the name of the jet ski business on the sign.
16. Mr. Cooper had not taken action on the
discussions, hoping that Bigler would go away and drop the subject. However, Mr. Cooper received a letter dated
October 6, 1992, from Bigler, stating Warren Watersports wanted to be a
franchisee or concessionaire of the City of Key West at the eastern end of
Smathers Beach. In exchange for
allowing Warren Watersports to operate its jet ski rental business on Smathers
Beach, to erect a sign on the beach, and to store wetsuits on the beach, Warren
Watersports was willing to erect and maintain a buoy system at Smathers Beach
and name the city as an additional insured on Warren Watersports' liability
insurance policy. The letter was copied
to Wardlow and to the Director of Parks and Recreation for the City.
17. Mr. Cooper asked Ron Herron, Assistant City Manager
for Key West, to review the letter and to make a recommendation concerning the
request. Mr. Herron's responsibilities
included leases, franchises and rentals of city property.
18. Mr. Herron responded to Mr. Cooper's
assignment with a memorandum dated October 14, 1992. Basically, the memorandum recommended against a franchise to
Warren Watersports, stating that the city had been trying to remove the wave
runner business operation from Smathers Beach since 1991, that the City
Commission had previously indicated that it did not want further
commercialization of Smathers Beach, and that the City would need to seek
approval from the Department of Natural Resources before allowing further
commercial use of the beach.
19. Some time after October 14, 1992, Wardlow
called Ron Herron to his office
regarding Bigler's request to place a sign on Smathers Beach. Wardlow wanted to know the reasons why Mr.
Herron had turned down the request from Warren Watersports. Wardlow's tone seemed a little hostile and a
little aggressive to Mr. Herron. After
Mr. Herron explained his reasoning for recommending that the request be denied,
Wardlow asked Mr. Herron to contact the Department of Natural Resources to see
if Warren Watersports' request could be approved.
20. As a result of that meeting, Mr. Herron
drafted a letter for Wardlow's signature to the Florida Department of Natural
Resources. Wardlow signed the letter,
dated December 7, 1992, and sent it to the Department of Natural
Resources. The letter specifically
referred to the signs that Warren Watersports wanted erected and included
photographs of the signs.
21. Mr. Herron was not aware of any other
businesses for which Wardlow, as mayor, wrote a letter to the Department of
Natural Resources seeking approval for a sign to be erected on the beach.
22. At the time that he signed the letter,
Wardlow was a paid consultant of Warren Watersports and John Bigler.
23. Wardlow did not discuss the request from
Bigler concerning the franchise and the sign with the City Manager.
24. Section 3.04 of the City of Key West Charter
discusses the duties of the City Commission regarding administrative officers
and employees of the city and provides:
(b) Except for the purpose of inquiries and
investigations, the commission or its members shall deal with the city manager
and employees who are subject to the direction and supervision of the city
manager solely through the manager, and neither the commission nor its members
shall give orders to any such officer or employee, either publicly or
privately.
25. In Key West the watersports business is very
competitive. Warren Watersports
operated from a barge 300 feet off the shoreline of Smathers Beach, a tourist
area in Key West. Other watersports businesses operated out of a public boat
ramp, while another competitor, Steve Kocis, pulled his barge up to the
seawall. By Kocis' business being up
against the seawall, Mr. Kocis'
customers were able to step directly onto his barge without wading into the
water. The customers of Warren
Watersports had to wade 300 feet into the water in order to rent a jet
ski. Mr. Kocis' operation had a serious
negative effect on Warren Watersports' business.
26. Bigler, as well as other Key West residents,
were upset that Mr. Kocis was operating his jet ski business next to the
seawall. The City received numerous
complaints about the operation of jet skis at Smathers Beach.
27. On April 5, 1994, Wardlow voted in favor of
an ordinance restricting the operation of jet ski rental companies to an area
at least 600 feet beyond the Key West shoreline.
28. On April 19, 1994, Wardlow sponsored and
voted for an amended ordinance that restricted the operation of jet ski rental
companies to an area at least 300 feet beyond the Key West shoreline. The amendment to the ordinance passed by a
four to three vote of the City Commission.
29. Between April 5 and 19, 1994, Bigler called
Wardlow to discuss the 600-feet restriction.
Lisa Macy placed at least two telephone calls to Wardlow for Bigler on
Bigler's car telephone after the April 5 meeting. One of the conversations was on speaker telephone, and Wardlow
said that he had spoken to several people on the commission about the 600-feet
restriction and that they were going to have to go back and make some changes.
30. Prior to the April 19, 1994, vote, three
Warren Watersports employees, including Bigler, addressed the Key West City
Commission and requested the Commission to reduce the restriction for operation
of jet ski rentals from 600 to 300 feet beyond the shoreline, stating that the
600 feet restriction would be detrimental to Warren Watersports' business.
31. Wardlow never publicly announced at the City
Commission meetings on April 5, 1994, and April 19, 1994, that he had financial
ties to Warren Watersports and Bigler.
32. Sara Sally Lewis, Charles Percy Curry, Jimmy
Weekly, Harry Bethel, and Joseph Pais were Key West City Commissioners at the
time of the April 5 and April 19 votes on the watersports ordinances. At no time prior to the votes did Wardlow
disclose to them that he was being paid $100 per week by Warren Watersports.
33. At the time Wardlow voted to amend the
proposed ordinance to a 300-feet restriction, there were approximately twenty
jet ski operators in Key West.
34. The total amount Wardlow received from
Bigler and Warren Watersports in 1992 was $1,000.
35. Wardlow earned $8,717.17 as Mayor of Key
West for 1992. He also received
$5,009.00 in taxable interest and had a capital gain of $441.00. On his income tax return, he reported gross
income from Aqua Clean Pool and Spa Service as $4,739.00, which included
$700.00 for consulting. His total gross
income for 1992 was $18,906.17.
36. The total amount Wardlow received from
Bigler and Warren Watersports in 1993 was $5,300.
37. The parties stipulated that Wardlow earned
$16,347.00 in total income from his public employment. Wardlow's income tax return filed for 1993,
indicated that he received $16,047.63 from his public employment in 1993. The 1993 income tax return also stated that
Wardlow received $4,071.00 as taxable interest. Wardlow's income tax return listed $5,200.00 as consulting income
associated with Aqua Clean Pool and Spa Service. His total gross income for 1993 was $25,318.63.
38. Wardlow sold his business, Aqua Clean Pool
and Spa Service, in November 1991. The
consulting fees listed on Wardlow's income tax return attributed to Aqua Clean
Pool and Spa Service were apparently those received from Bigler. However, the contract was between Warren
Watersports and Wardlow and not between Warren Watersports and Aqua Clean Pool
and Spa Services
39. Wardlow did not disclose Warren Watersports
or Bigler as a source of income on his 1992 Form 1 Statement of Financial Interests.
40. Wardlow did not disclose Warren Watersports
or Bigler as a source of income on his 1993 Form 1 Statement of Financial
Interests.
41. The total amount that Wardlow received from
Bigler and Warren Watersports in 1994 was $1,600.
42. Wardlow did not file a Form 1 Statement of
Financial Interests for 1994.
CONCLUSIONS OF LAW
43. The Division of Administrative Hearings has
jurisdiction over the parties to and the subject matter of this
proceeding. Section 120.57(1), Florida
Statutes.
44. Section 112.322, Florida Statutes, and Rule
34-5.0015, Florida Administrative Code, authorize the Commission on Ethics to
conduct investigations and to make public reports on complaints concerning
violations of Part III, Chapter 112, Florida Statutes.
45. 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., Inc., 396 So. 2d 778 (Fla. 1st DCA 1981); Balino
v. Department of Health and Rehabilitative Services, 348 So. 2d 349 (Fla.
1st DCA 1977). In this proceeding, it
is the Advocate that is asserting that Wardlow violated certain provisions
of Chapter 112, Florida Statutes. Therefore, the burden is on the Advocate to
establish the elements of the alleged violations by clear and convincing
evidence. Latham v. Commission on
Ethics, 694 So. 2d 83 (Fla. 1st DCA 1997).
46. Wardlow is alleged to have violated Sections
112.313(2), (4), (6), and (7)(a), Florida Statutes, which provide:
(2) Solicitation or Acceptance of Gifts. No public officer, employee of an agency, or
candidate for nomination or election shall solicit or accept anything of value
to the recipient, including a gift, loan, reward, promise of future employment,
favor, or service, based upon any understanding that the vote, official action,
or judgment of the public officer, employee, or candidate would be influenced
thereby.
* * *
(4) Unauthorized Compensation. No public officer, employee of an agency, or
local government attorney or his spouse or minor child shall, at any time,
accept any compensation, payment, or thing of value when such public officer,
employee, or local government attorney knows or, with the exercise of
reasonable care, should know, that it was given to influence a vote or other
action in which the officer, employee, or local government attorney was
expected to participate in his official capacity.
* * *
(6) Misuse of Public Position. 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.
(7) 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 an 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.
47. Wardlow is alleged to have violated Section 112.3143(3), Florida
Statutes, which provides:
No county,
municipal, or other local public officer shall vote in an official capacity
upon any measure which would inure to his or her 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.
48. Wardlow is alleged to have violated Section
112.3145(2)(b), Florida Statutes, which provides:
Each state or local
officer and each specified state employee shall file a statement of financial
interest no later than July 1 of each year.
Each state or local officer who is appointed and each specified employee
who is employed shall file a statement of financial interests within 30 days of
appointment or, in the case of a specified employee, from the date on which the
employment begins, except that any person whose appointment is subject to
confirmation by the Senate shall file prior to confirmation hearings or within
30 days from the date of appointment, which ever comes first.
49. Wardlow is alleged to have violated Section
112.313(2), Florida Statutes, by accepting cash payments of $100 per week from
a jet ski rental business based on an understanding that his votes, official
actions, or judgment would be influenced thereby. In order to find a violation of Section 112.313(2), Florida
Statutes, the following elements must be established:
A. Wardlow must have either been a public
officer, a public employee or a candidate for nomination or election.
B. Wardlow must have solicited or accepted
something of value to him or her, including a gift, loan, reward, promise of
future employment, favor or service.
C. Such solicitation or acceptance must have
been based upon an understanding that Wardlow's vote, official action, or
judgment would be influenced thereby.
50. The parties have stipulated that Wardlow, as
former Mayor of Key West, was subject to the requirements of Part III, Chapter
112, Florida Statutes. Wardlow did
accept $100 a week from Bigler and Warren Watersports from October 1992 through
April 22, 1994. When Wardlow signed the
agreement with Bigler, he may have thought that he was going to do public
relations work by soliciting the hotels for a concession for Warren
Watersports; however, he decided that as mayor he had a conflict with
soliciting the hotels and declined to perform those requirements of the
contract. It appears that initially
Wardlow may have believed he was being paid as a consultant; however, as the
relationship between Bigler and Wardlow continued, Wardlow became aware that
the weekly payments were for the purpose of influencing his actions as the
Mayor of Key West. Wardlow contends
that he was giving business advice to Bigler concerning Warren
Watersports. Bigler was an attorney, a
retired JAG officer, and owed businesses other than Warren Watersports. It is not logical that Bigler would pay
Wardlow a $100 a week for nineteen months for business advice except for the
fact that Wardlow was the Mayor of Key West.
51. Wardlow testified that he included the
consulting fees on his income tax returns and that he was not trying to hide
the fees. The tax returns for 1992 and
1993 show that Wardlow was claiming the consulting fees as income to a business
which he had sold in 1991, and Wardlow was deducting business expenses from the
pool cleaning business from the income he received from Bigler. Wardlow was attempting to hide the source of
his income because he knew that he should not have been receiving the money.
Wardlow violated
Section 112.313(2), Florida Statutes.
52. Wardlow is alleged to have violated Section
112.313(4), Florida Statutes, by accepting cash payments of $100 per week from
a jet ski rental business when he knew or should have known the payments were
given to influence his official actions.
In order to find a violation of Section 112.313(4), Florida Statutes,
the following elements must be established:
A. Wardlow must have been a public officer or
employee.
B. Wardlow or Wardlow's spouse or minor child
must have accepted some compensation, payment, or thing of value.
C. When such compensation , payment, or thing
of value was accepted:
(1)
Wardlow knew that it was given to influence a vote or other action in
which Wardlow was expected to participate in an official capacity or
(2)
Wardlow, with the exercise of reasonable care, should have known that it
was given to influence a vote or other action in which Wardlow was expected to
participate in his official capacity.
53. The parties have stipulated that Wardlow, as
former Mayor of Key West, was subject to the requirements of Part III, Chapter
112, Florida Statutes. Wardlow accepted
$100 a week from Bigler and Warren Watersports from October 1992 through April
22, 1994. Wardlow should have known
that the payments were given to influence his actions in his official
capacity. Shortly after Bigler began
making weekly payments to Wardlow, Bigler asked Wardlow how Warren Watersports
could get a sign erected on the beach.
Another time, Bigler asked Wardlow to help him get a Code Enforcement
violation straightened out. A
reasonable person would have become suspicious that Bigler was expecting more
for his $100 a week than public relations consulting, which Wardlow was not
providing. Wardlow knew that the
payments were to influence him in his official duties. Based on Wardlow's comments to Ms. McGill
that he wished Bigler would quit sending him a check each week, it is clear
that, Wardlow was aware that he was being given the money to influence his
actions as mayor. Wardlow violated
Section 112.313(4), Florida Statutes.
54. Wardlow is alleged to have violated Section
112.313(6), Florida Statutes, by corruptly using his official position to help
a jet ski rental business avoid the implementation of certain laws intended to
restrict jet ski operations. In order
to find a violation of Section 112.313(6), Florida Statutes, the following
elements must be established:
1. Wardlow must have been a public officer or
employee.
2. Wardlow must have
a.
used or attempted to use his official position or any property or
resources within his trust,
or
b. performed his official
duties.
3. Wardlow's actions must have been taken to
secure a special privilege, benefit or exemption for himself or others.
4. Wardlow must have acted corruptly, that is,
with wrongful intent and for the purpose of benefiting himself or another
person from some act or omission which was inconsistent with the proper
performance of his public duties.
55. The parties have stipulated that Wardlow, as
former Mayor of Key West, was subject to the requirements of Part III, Chapter
112, Florida Statutes. Wardlow voted on
an amendment to a proposed ordinance in order to secure a special benefit for
Warren Watersports. Wardlow was
receiving money from Warren Watersports to help the business, which was
inconsistent with the performance of his duties as mayor. Wardlow violated Section 112.313(6), Florida
Statutes.
56. Wardlow is alleged to have violated Section
112.313(7)(a), Florida Statutes, by having a contractual relationship with
Warren Watersports which impeded the full and faithful discharge of his public
duties. In order to find a violation of
Section 112.313(7)(a), Florida Statutes, the following elements must be
established:
A. Wardlow must have been a public officer or
employee.
B. Wardlow must have been employed by or have a
contractual relationship with a business entity or an agency.
C. Such business entity or state agency must
have been subject to the regulation of, or doing business with, the agency of
which Wardlow was an officer or employee.
or
A. Wardlow must have been a public officer or
employee.
B. Wardlow must have held employment or
contractual relationship that would:
(1)
Create a continuing or frequently recurring conflict between Wardlow's
private interests and the performance of his public duties;
or
(2)
Impede the full and faithful discharge of Wardlow's public duties.
57. The parties have stipulated that Wardlow, as
former Mayor of Key West, was subject to the requirements of Part III, Chapter 112, Florida Statutes. He did have a contractual relationship with
Warren Watersports in which he received $100 a week. The relationship did create a frequent conflict with his public
duties and did impede the full and faithful discharge of his public duties as
evidenced by Wardlow's intervention on behalf of Warren Watersports in an
attempt to get permission from the Department of Natural Resources for the
erection of a sign advertising Warren Watersports on Smathers Beach. The letter to the Department was not a
generic request for the approval of signs that would be eventually let out for
bid but for a particular sign that would be advantageous to Warren
Watersports. Additionally, Wardlow, in
intervening on behalf of Warren Watersports, gave direction to Ron Herron to
draft the letter, contrary to Section 3.04 of the City of Key West Charter,
which requires the mayor to deal with the city manager.
58. In CEO 96-14, the Commission on Ethics,
citing Zerweck v. State Commission on Ethics, 409 So. 2d 57, 61 (Fla.
4th DCA) stated:
[T]his prohibition
establishes an objective standard which requires an examination of the nature
and extent of the public officer's duties together with a review of his private
employment to determine whether the two are compatible, separate, distinct, or
whether they coincide to create a situation which 'tempts dishonor.'
59. There had been numerous complaints
concerning jet ski operations at Smathers Beach, and the City had been trying
to stop the jet ski operations at Smathers Beach since at least 1991. Wardlow knew or should have known that he
would have to address issues relating to watersports at Smathers Beach as part
of his official duties. Wardlow's
contractual relationship with Bigler did create a situation that would tempt
dishonor. Wardlow violated Section 112.313(7)(a),
Florida Statutes.
60. Wardlow is alleged to have violated Section 112.3143(3), Florida Statutes, by voting on a matter
which inured to his special private gain or to the special private gain of a
principal by whom he was retained. In
order to find a violation of Section 112.3143(3), Florida Statutes, the following
elements must be established:
A. Wardlow must have been a county, municipal
or other local public officer serving on a collegial body.
B. Wardlow must have done one of the following:
(1)
Voted in his official capacity on a measure which would have inured to
Wardlow's special private gain or loss.
(2)
Voted in his official capacity on a measure which Wardlow knew would
have inured to the special private gain or loss of a principal by whom Wardlow
was retained or to the parent organization or subsidiary of a corporate
principal by which Wardlow was retained.
(3)
Voted in his official capacity on a measure which Wardlow knew would
have inured to the special private gain or loss of a relative or business
associate of Wardlow.
61. The parties have stipulated that Wardlow, as
former Mayor of Key West, was subject to the requirements of Part III, Chapter
112, Florida Statutes. As mayor, he
served on the City Commission, a collegial body. On April 19, 1994, Wardlow, while being retained by Warren
Watersports, sponsored and voted for an amendment to a proposed ordinance which
restricted the operation of jet ski rental companies to an area at least 300
feet beyond the Key West shoreline, cutting the restricted area in half from
600 feet to 300 feet. Prior to the
April 19 vote, Bigler and two other representatives of Warren Watersports
appeared before the City Commission and requested that the restriction be
reduced from 600 feet to 300 feet, stating that the 600 feet restriction would
effectively put Warren Watersports out of business. Additionally, in response to a call from Bigler concerning the
600 feet restriction, Wardlow told Bigler that he was going to get the restriction
changed. The amendment to the ordinance
passed on a four to three vote.
62. Wardlow argues that because other jet ski
operations would be affected by the ordinance that the vote did not inure to
the special private gain or loss of Warren Watersports. In CEO 90-71, the Commission on Ethics
discussed the issue of special private gain and opined as follows:
The issue here is
whether the project will inure to your special private gain. In CEO 77-129 we advised that the
determination of whether a measure inures to the special gain of an official
turns in part on the size of the class of persons who stand to benefit from the
measure. Where a class is large a
special gain will result only if there are circumstances unique to the official
which would enable him to gain more than the other members of the class. However, where the class of persons
benefiting is extremely small, the possibility of special gain is much greater.
In CEO 90-64 we
found that a city commissioner was prohibited from voting on a renovation
project which would benefit property in which he owned an interest, where he
owned a 50% interest in one of 55 parcels which would be affected by an
assessment and where the parcels were owned by more than 40 persons or
entities.
We have concluded
that no voting conflict was presented in other situations where the interests
of the public official involved one percent or less of the class. See CEO 78-96 (38 out of 5,000 acres
involved); CEO 84-80 (1 out of 500 persons whose property would be downzoned);
CEO 85-5 (90% out of 250 residents of 250 residents affected); CEO 87-18 (300
out of 29,000 acres); CEO 87-27 (involving rezoning of a town having a population
of 210); and CEO 87-95 (1 out of 650 property owners affected.) . . .
63. Given that there were twenty watersports
operators in Key West, Warren Watersports constituted at least five percent of
the class of affected entities. Warren
Watersports would have been effectively put out of business if the restriction
had remained at 600 feet. Additionally,
if the restriction was made 300 feet from the shoreline, competitors who were
operating from the seawall would have to move out 300 feet, thereby taking an
advantage from Warren Watersports' competitors, who were operating at the
seawall. There was a special private
gain that inured to Warren Watersports by Wardlow's vote. Wardlow violated Section 112.3143(3),
Florida Statutes.
64. Wardlow is alleged to have violated Section
112.3145, Florida Statutes, by failing to disclose the consulting fees that he
received from Warren Watersports, Ridley Turtle or John Bigler on his CE Form 1-Statement
of Financial Interests for 1992 and 1993.
65. Section 112.3145(3)(a), Florida Statutes,
requires that the following information shall be included on the statements of
financial interests for state officers:
(a) All sources of income in excess of 5 percent
of the gross income received during the disclosure period by the person in his
or her own name or by any other person for his or her use or benefit, excluding
public salary. However, this shall not
be construed to require disclosure of a business partner's sources of
income. The person reporting shall list
such sources in descending order of value with the largest source first.
66. Wardlow's gross income reported to the
Internal Revenue Service for 1992 was $14,167.17. The amount received from Bigler in 1992 was $1,000.00, which
exceeded five percent of his gross income for 1992. Wardlow failed to include the income from Warren Watersports or
Bigler on his CE Form 1-Statement of Financial Interests for 1992. Wardlow violated Section 112.3145, Florida
Statutes.
67. In 1993, Wardlow's gross income was
$25,318.63. The amount received from
Bigler in 1993 was $5,300.00, which exceeded five percent of his gross
income. Wardlow failed to include the
income from Warren Watersports or Bigler on his CE Form 1-Statement of
Financial Interests for 1993. Wardlow
violated Section 112.3145, Florida Statutes.
68. Wardlow is alleged to have violated Section
112.3145, Florida Statutes, by failing to file his CE Form 1-Statement of
Financial Interests, for 1994. Wardlow
did not file his CE Form 1-Statement of Financial Interests for 1994 and is
guilty of violating Section 112.3145, Florida Statutes.
RECOMMENDATION
Based on the
foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a
Final Order be entered finding that Dennis Wardlow did violate Sections
112.313(2),(4), (6), and (7)(a), 112.3143(3) and 112.3145, Florida Statutes;
imposing a civil penalty of $5,000; issuing a public censure and reprimand; and
ordering restitution to the State of Florida of the $7,900 that Dennis Wardlow
received from Warren Watersports and John Bigler.
DONE AND ENTERED
this 26th day of June, 1998, in Tallahassee, Leon County, Florida.
___________________________________
SUSAN B.
KIRKLAND
Administrative
Law Judge
Division of
Administrative Hearings
The DeSoto Building
1230 Apalachee
Parkway
Tallahassee,
Florida 32399-3060
(850) 488-9675 SUNCOM 278-9675
Fax Filing (850) 921-6847
Filed with the
Clerk of the
Division of
Administrative Hearings
this 26th day of
June, 1998.
COPIES FURNISHED:
Eric S. Scott,
Advocate
Florida Commission
on Ethics
Office of the
Attorney General
The Capitol, Plaza
01
Tallahassee,
Florida 32399-1050
Michael Halpern,
Esquire
Michael Halpern,
P.A.
209 Duval Street
Key West,
Florida 33040
Mel Black, Esquire
2937 Southwest 27th
Avenue
Miami, Florida 33133
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
Kerrie J. Stillman
Complaint
Coordinator
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.