STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
Respondent. ) Case No: 00-0266EC
_________________________________)
RECOMMENDED ORDER
Pursuant to notice, the Division of
Administrative Hearings, by its duly-designated Administrative Law Judge,
Carolyn S. Holifield, held a formal hearing in this case on April 28, 2000, by
videoconference at sites in Pensacola and Tallahassee, Florida.
APPEARANCES
Advocate: James H. Peterson, III,
Esquire
Office of the Attorney
General
The Capitol, Plaza Level 01
Tallahassee, Florida 32399-1050
For Respondent: Mark Herron, Esquire
Akerman, Senterfitt & Edison, P.A.
301 South Bronough Street, Suite 200
Tallahassee, Florida 32801
STATEMENT OF THE ISSUES
The issues for determination are: (1) Whether Respondent, David M. Whitehead,
a member of Escambia County Commission, violated Section 112.313(7)(a), Florida
Statutes, by having or holding an employment or contractual relationship with B
& W Productions of Pensacola, Inc. (B & W Productions) which created a
continuing or frequently recurring conflict between his private interests and
the performance of his public duties or which impeded the full and faithful
discharge of his public duties; (2)
whether Respondent violated Section 112.3143(3)(a), Florida Statutes, by voting
on measures that came before the Escambia County Commission regarding Carlan
Killam Consulting Group, Inc. (Carlan Killam Consulting or Carlan Killam), Baskerville-Donovan,
Inc. (Baskerville-Donovan), DelGallo-Morette Construction Company (DelGallo-Morette),
and/or Champion International Corporation (Champion), all of whom were sponsors
of a television show hosted by Respondent; and (3) if so, what penalty is
appropriate.
PRELIMINARY STATEMENT
On December 2, 1999, the Florida Commission
on Ethics (Ethics Commission) issued an Order Finding Probable Cause to believe
that Respondent, David M. Whitehead, as a member of the Escambia County
Commission, violated Section 112.313(7)(a), Florida Statutes, by having an
employment or contractual relationship with B & W Productions which created
a continuing or frequently recurring conflict between his private interests and
the performance of his public duties or which impeded the full and faithful
discharge of his public duties.
Additionally, the Ethics Commission found that there was probable cause
to believe that Respondent violated Section 112.3143(3)(a), Florida Statutes, by
voting on measures that came before the Escambia County Commission regarding
Carlan Killam Consulting, Baskerville-Donovan, DelGallo-Morette, and/or
Champion.
On or about January 13, 2000, the case was
forwarded to the Division of Administrative Hearings for assignment to an
Administrative Law Judge to conduct a public hearing and to prepare a
recommended order.
Prior to the public hearing, the parties
submitted a Joint Pre-hearing Stipulation containing a number of stipulations
of fact and law. The facts to which the
parties stipulated required no proof at hearing.
At the public hearing, the Advocate called
six witnesses: Respondent; Charles
Carlan; Steve DelGallo; JoAnn McKeithan; Stuart Bainter; and Elizabeth
Watkins. The Advocate offered eleven
exhibits, ten of which were received into evidence. Advocate's Exhibit AE-2 was proferred. Respondent testified on his own behalf and offered two exhibits,
both of which were received into evidence.
The parties jointly offered into evidence the deposition of Lois Benson
taken April 11, 2000, which was received into evidence.
A Transcript of the proceeding was filed with
the Division of Administrative Hearings on May 24, 2000. The Advocate and Respondent timely filed
Proposed Recommended Orders, which have been considered in preparation of this
Recommended Order.
FINDINGS OF FACT
1.
Respondent, David M. Whitehead (Respondent), currently serves as county
commissioner for Escambia County, Florida, and has continuously served in that
capacity since taking office after his election in 1992.
2.
As a county commissioner for Escambia County, Respondent is subject to
the requirements of Part III, Chapter 112, Florida Statutes, the Code of Ethics
for Public Officers and Employees (Code of Ethics), and is a "public
officer" as that term is defined in Sections 112.313(1) and
112.3143(1)(a), Florida Statutes.
3.
As a county commissioner for Escambia County, Respondent is subject to
the provisions of Sections 112.313(7)(a) and 112.3143(3)(a), Florida Statutes.
4.
Respondent formed B & W Productions, a Subchapter S, for-profit
corporation, for the purpose of producing a morning television show that was to
be known as the "Lois and Mike Show" or the "Wake-Up with Lois
and Mike Show" (the "Lois and Mike Show"). Respondent is "Mike" on the Lois
and Mike Show and co-hosts the show with Lois Benson.
5. B
& W Productions was incorporated to shield the personal assets of
Respondent and Benson in case of liability.
B & W Productions was organized under the laws of the State of
Florida, effective June 17, 1998. B
& W Productions was active from June 17, 1998, through September 23,
1999. On September 24, 1999, B & W
Productions was administratively dissolved for failure to file its annual
report, as required by law.
6.
During its corporate existence, B & W Productions maintained a
corporate bank account at SunTrust Bank, West Florida; produced periodic profit
and loss statements of its activities; applied for a federal tax identification
number as a Subchapter S corporation; filed a corporate tax return with the
Internal Revenue Service; and entered into sponsorship agreements with specific
sponsors of the Lois and Mike Show.
However, during its corporate existence, the corporation failed to
conduct meetings of its shareholders, to take minutes, and to file its annual
report.
7.
Respondent served as chief executive officer of B & W Productions
until approximately March of 1999. In
March 1999, after Respondent stepped down as CEO, Benson took over the books
and management of B & W Productions.
Thereafter, Respondent was not involved in the active management of B
& W Productions.
8.
In November of 1999, Respondent transferred to Benson "all
ownership rights, rights to compensation in any form, and right to any
benefits, accrued or accruing in the future, with regard to B & W
Productions, Inc., and "Wake Up with Lois and Mike . . . ." Respondent transferred complete ownership of
B & W Productions to Benson, free and clear of any obligation for repayment.
9.
The Lois and Mike Show began airing on a local cable station in
Pensacola known as "BLAB TV" in September of 1998. Respondent and
Benson have received no compensation for their efforts in connection with the
Lois and Mike Show.
10. Since
the Lois and Mike Show first aired, over 200 guests, all local people, have
appeared on the show. Daily rundowns of
the show for the calendar year 1999 evidence a program highlighting local
community events and personal information presented by local residents
consistent with a weekly theme developed by Benson.
11. As
a political figure, Respondent receives an incidental benefit of appearing as
local personality on the Lois and Mike Show.
However, the show is not a political show. Rather, consistent with its mission, the show entertains and
informs its audience on issues specific to the Pensacola area, highlighting
local news and issues, local events, and local people.
12. BLAB
TV requires the payment of $1,250.00 for each week that the Lois and Mike Show
is aired. Other costs incurred in the
production of the show included contract labor and outside production companies
used to produce a portion of the show.
The primary source of income to pay for the Lois and Mike Show is money
paid by sponsors or supporters of the Lois and Mike Show.
13. Using
a public broadcasting system model, Benson developed a market plan to secure
sponsors for the Lois and Mike Show.
The plan proposed different tiers of sponsorship: segment sponsors; traditional commercial
sponsors; and friends and benefactors.
Benson developed lists of potential sponsors which included a wide range of businesses in the
Pensacola area. These businesses
included but were not limited to Baskerville-Donovan, DelGallo-Morette and
Champion. Various potential sponsors
including Baskerville-Donovan, DelGallo-Morette and Champion, were targeted for
a personal solicitation from either Benson and/or Respondent.
14. Initially,
B & W Productions was responsible for billing and collecting sponsorship
fees. However, in December 1998, three
months after the show was first aired, responsibility for billing and
collection of sponsorship fees was assumed by BLAB TV. Since BLAB TV took over these
responsibilities, all sponsors of the
Lois and Mike Show are billed directly by BLAB TV.
15. Both
Respondent and Benson personally paid a portion of the costs for the airing and
production of the Lois and Mike Show.
Respondent paid approximately $16,000.00 of his personal funds for the
production of the Lois and Mike Show.
Benson expended approximately $30,000 of her personal funds for the
production of the show. These payments
have at various times been characterized as loans and capital
contributions. In March of 1999,
Respondent determined that he could not put anymore of his personal funds into
B & W Productions and did not do so.
16. Both
before and after the airing of the first Lois and Mike Show, Respondent
solicited funds from sponsors to help pay the amount charged by BLAB TV for
airing the show. Sponsorships were
solicited from over 200 individuals and entities in the Pensacola community by
Respondent and Benson.
17. Respondent
solicited funds in 1998 for the sponsorship of the Lois and Mike Show from a
number of sources, including Baskerville-Donovan, Carlan Killam Consulting,
Champion, and DelGallo-Morette, all of whom gave money for the sponsorship of
the Lois and Mike Show. There was never
any discussion at the time the solicitations were made that any of these
potential sponsors might have matters before the Escambia County Commission
(County Commission or Commission).
18. Respondent
has not solicited sponsors for the show since March of 1999.
19. Baskerville-Donovan,
Carlan Killam Consulting, Champion, and DelGallo-Morette have all had matters
come before the Escambia County Commission after giving money for the Lois and
Mike Show.
20. Respondent,
as a county commissioner for Escambia County, has voted on matters that have
come before the County Commission regarding Baskerville-Donovan, Carlan Killam
Consulting, Champion, and DelGallo-Morette after those companies gave money to
support the airing and/or production of the Lois and Mike Show.
21. However,
Respondent has never been employed by and has never owned property with or
engaged in a business enterprise with Baskerville-Donovan, Carlan Killam
Consulting, Champion, or DelGallo-Morette.
22. Since
July of 1998, Respondent has cast approximately 3,000 votes as a member of the
County Commission. He has never
abstained from a vote as a county commissioner or filed a conflict of interest
disclosure form based upon payments that have been made by any entity to B
& W Productions or for the Lois and Mike Show.
23. Baskerville-Donovan
provides architectural and engineering services to Escambia County. These services are provided pursuant to an
on-going contract with the county.
24. Respondent
solicited a sponsorship from Baskerville-Donovan. Subsequently, Baskerville-Donovan became a regular sponsor of the
Lois and Mike Show paying $200 a month, beginning September or October 1998,
and continuing through April 2000.
25. The
following matters that came before the Escambia County Commission for a vote
regarding Baskerville-Donovan just before and after it became a sponsor of the
Lois and Mike Show:
a. On
June 23, 1998, the Commission approved
issuance of a Task Order to Baskerville-Donovan on Contract PD 95-96.74 in the
amount of $394,568 to design several road projects to the 35 percent
stage. This item was unanimously
approved by the Commission upon motion made by Respondent. This vote occurred prior to any sponsorship
funds being paid to B & W Productions by Baskerville-Donovan.
b. On
September 22, 1998, the Commissioner approved the extension of six contracts
with various consultants, including Contract PD 95-96.74 to Baskerville-Donovan
for the second consecutive one-year option period, October 1, 1998, through
September 30, 1999, at the same price, terms, and conditions. The extensions applied to contracts that had
been awarded on August 6, 1996. This
item was unanimously approved as part of the Commission's Consent Agenda. This vote occurred after sponsorship funds
were paid by Baskerville-Donovan to B & W Productions.
c. On
December 22, 1998, the Commission approved Addendum Number 7 to Contract 95-96.63
to Baskerville-Donovan in the amount of $316,775.60 to provide full-time
inspection and contract administration for the University Parkway Widening and
Realignment Projects. This item was
unanimously approved by the Commission with Respondent seconding the motion for
approval made by Commissioner Boss. This
vote occurred after sponsorship funds were paid to B & W Productions by
Baskerville-Donovan and after responsibility for collecting and accounting for
sponsorship funds for the Lois and Mike Show was transferred to BLAB TV.
d. On
January 21, 1999, the Commission approved issuance of a Task Order on Contract
PD 95-96.74 to Baskerville-Donovan, in the amount of $490,729.00 to design
various paving and drainage projects to the 30 percent stage. This item was unanimously approved as part
of the Commission's Consent Agenda.
This vote occurred after sponsorship funds were paid to B & W
Productions and after responsibility for collecting and accounting for
sponsorship funds for the Lois and Mike Show was transferred to BLAB TV.
e. On
January 21, 1999, the Commission approved extension of five current contracts
with various consultants, including Contract PD 95-96.100 to Baskerville-Donovan,
for the third consecutive one-year option period, March 14, 1999, through March 13, 2000, at the same prices, terms
and conditions. The extensions applied
to contracts that had been awarded March 14, 1998. The item was unanimously approved as part of the Commission's
Consent Agenda. This vote occurred
after sponsorship funds were paid to B & W Productions and after responsibility
for collecting and accounting for sponsorship funds for the Lois and Mike Show
was transferred to BLAB TV.
f. On
February 4, 1999, the Commission approved Amendment Number 4 to Contract PD 94-95.59
between Escambia County and Baskerville-Donovan, in the amount of $51,200, for
architectural and engineering services for various projects. (The original contract was approved on April
25, 1995.) This item was unanimously
approved as part of the Commission's Consent Agenda, with Respondent moving approval
of the Consent Agenda. This vote
occurred after sponsorship funds were paid to B & W Productions and after
responsibility for collecting and accounting for sponsorship funds for the Lois
and Mike Show was transferred to BLAB TV.
g. On
April 22, 1999, the Commission approved the expenditure of approximately $3,000
to Baskerville-Donovan to complete the design package for renovations to the
Board Chambers located in the Old Courthouse.
This item was approved by a vote of 4-0, with Commissioner Robertson
absent. This vote occurred after
sponsorship funds were paid to B & W Productions and after responsibility
for collecting and accounting for sponsorship funds for the Lois and Mike Show
was transferred to BLAB TV.
h. On
May 20, 1999 the Commission approved three items extending Contract PD 95-96.83
to allow three consultants, including Baskerville-Donovan, to proceed with
various tasks with respect to the extension of I-110. In the first vote, the Commission unanimously approved extension
of the contract to allow consultants to proceed with the preparation of
applications associated with the request for funds for the I-110 extension
project. In the second vote, the
Commission unanimously approved extension of the contract to allow the
consultants to proceed with design and preparation of other documents required
in connection with extension of I-110 to Nine Mile Road. In the third vote, the Commission approved,
by a vote of 3-2, extension of the contract to allow consultants to proceed
with design and preparation of related documents for further extension of I-110
using as much of the Gulf Power right-of-way as possible. With respect to each vote, Respondent
seconded the motion for approval and voted in the affirmative on each
item. These votes occurred after
sponsorship funds were paid to B & W Productions and after responsibility
for collecting and accounting for sponsorship funds for the Lois and Mike Show
was transferred to BLAB TV.
i. On
October 7,1999, the Commission approved Contract PD 98-99.83 to Baskerville-Donovan,
in the amount of $100,000 for a feasibility study for the Central Commerce
Park. This item was approved
unanimously by the Commission upon motion seconded by Respondent. This vote occurred after sponsorship funds
were paid to B & W Productions and after responsibility for collecting and
accounting for sponsorship funds for the Lois and Mike Show was transferred to
BLAB TV.
26. With
respect to each of the matters which were the subject of votes referenced in
paragraph 25, neither Respondent nor B & W Productions provided any
services to Baskerville-Donovan. Nor
did Respondent or B & W Productions have any responsibility for evaluating
or inspecting Baskerville-Donovan's performance under any of these
contracts. Moreover, neither Respondent
nor B & W Productions provided any services with respect to any of the
projects which were the subject of the Commission votes. Finally, neither the Respondent nor B &
W Productions benefited from the votes of the County Commission approving
various items involving Baskerville-Donovan.
27. Respondent
has never been employed or retained by Baskerville-Donovan. Respondent has never been engaged in a
business enterprise with Baskerville-Donovan as a partner, a joint venturer, a
co-owner of property, or in a corporate entity whose shares are not listed on a
national or regional stock exchange.
28. Carlan
Killam Consulting provides architectural services to Escambia County, and has
done so since 1973. These services have
been provided to the county through on-going contracts.
29. Carlan
Killam Consulting provided one payment of $1,500.00 to sponsor the Lois and
Mike Show. That payment was made on or
about July 29, 1998.
30. Benson
initially approached Charles Carlan, the president of Carlan Killam Consulting,
about sponsoring the Lois and Mike Show.
Subsequently, Carlan met with Respondent and decided to have his company
sponsor the show because it showed the positive side of Pensacola, as opposed to
the negative side shown in the regular media.
Carlan Killam Consulting engaged in a similar sponsorship endeavor with
respect to the Pensacola Independent Newspaper.
31. The
following matters came before the Escambia County Commission for a vote
regarding Carlan Killam Consulting just before and after it became a sponsor of
the Lois and Mike Show:
a. On
June 23, 1998, the Commission, upon motion by Respondent, unanimously approved
the issuance of a Task Order on Contract PD 95-96.74 to Carlan Killam in the
amount of $254,920 to design several road projects to 30 percent stage. This vote occurred before sponsorship funds
were paid by Carlan Killam.
b. On
July 28, 1998, the Commission unanimously approved, as part of its Consent
Agenda, a Task Order on Contract PD 95-96.74 to Carlan Killam in the amount of
$379,618 for various road paving and draining design projects. This vote occurred before any sponsorship
funds were paid by Carlan Killam.
c. On
September 22, 1998, the Commission approved extensions of six current contracts
with various consultants, including Carlan Killam (Contract PD 95.96.74), for
the second consecutive one-year option period, October 1, 1998, through
September 30, 1999, at the same prices, terms and conditions. (The extensions applied to contracts that
had been awarded August 6, 1996.) This
item was unanimously approved as part of the Commission's Consent Agenda. The vote occurred after the one-time
sponsorship payment was made to B & W Productions by Carlan Killam.
d. On
November 24, 1998, the Commission considered and unanimously approved the
Proposal Review Committee's ranking of firms based on their letters of interest
regarding providing professional architectural consulting services to prepare a
10-year master space plan. Carlan
Killam ranked second. This vote
occurred after Carlan Killam made a one-time sponsorship payment to B & W
Productions.
e. On
December 3, 1998, the Commission approved issuance of a Task Order on Contract
PD-96.74.3P to Carlan Killam in the amount of $134,748 for services on various
waste water projects. This vote
occurred after the one-time sponsorship payment was made by Carlan Killam to B
& W Productions.
f. On
December 22, 1998, the Commission approved issuance of a Task Order on Contract
95-96.74 in the amount of $104,927 for design, engineering, and surveying
services for storm-water and drainage projects. This item was unanimously approved as part of the Commission's
Consent Agenda. This vote occurred
after the one-time sponsorship payment was made by Carlan Killam to B & W
Productions.
g. On
March 18, 1999, the Commission approved issuance of three task orders on
Contract PD 95-96.74 to Carlan Killam in amounts of $136,476; $504,771; and
$69,087. These items were unanimously
approved as part of the Commission's Consent Agenda. Respondent was not present for this meeting.
h. On
April 22, 1999, the Commission approved issuance of a Task Order on Contract PD
95-96.74 to Carlan Killam in the amount of $110,666 for the design and
engineering for various road projects.
This item was unanimously approved as part of the Commission's Consent
Agenda for this date. This vote
occurred after the one-time sponsorship payment was made by Carlan Killam to B
& W Production.
i. On
May 20, 1999, the Commission approved three items extending Contract PD 95-96.83 to direct named consultants,
including Carlan Killam, to proceed with various tasks with respect to the
extension of I-110. In the first vote,
the Commission unanimously approved extension of the contract to allow
consultants to proceed with the preparation of applications associated with the
request for funds for the I-110 extension project. In the second vote, the Commission unanimously approved extension
of the contract to allow the consultants to proceed with design and preparation
of other documents required in connection with extension of I-110 to Nine Mile
Road. In the third vote, the Commission
approved, by a vote of 3-2, extension of the contract to allow consultants to
proceed with design and preparation of documents for further extension of I-110
using as much of the Gulf Power right-of-way as possible. With respect to each item, Respondent
seconded the motion for approval and voted in the affirmative. These votes occurred after the one-time
sponsorship payment was made by Carlan Killam to B & W Productions.
j. On
October 21, 1999, the Commission approved issuance of Task Order on Contract PD
95-96.83 to Carlan Killam in an amount not to exceed $263,727.28, to provide
the first phase of project development to study the I-110 extension to Nine
Mile Road. This item was approved by
the Commission, by a vote of 4-1, with Respondent voting in the
affirmative. This vote occurred after
the one-time sponsorship payment was made to B & W Productions.
32. With
respect to each of the matters which were the subject of votes referenced in
paragraph 31, neither Respondent nor B & W Productions provided any
services to Carlan Killam. Moreover,
neither Respondent nor B & W Productions had any responsibility for
evaluating or inspecting Carlan Killam's
performance under the aforementioned contracts or for providing any
services with respect to any of the projects which were the subjects of these
votes. Finally, neither Respondent or B
& W Productions benefited in any manner from the votes of the County
Commission approving various items involving Carlan Killam.
33. Respondent
has never been employed or retained by Carlan Killam. Respondent has never been engaged in a business enterprise with
Carlan Killam as a partner, a joint venturer, a co-owner of property, or in a
corporate entity whose shares are not listed on a national or regional stock
exchange.
34. DelGallo-Morette
provides construction services to Escambia County.
35. Benson
suggested that Respondent contact DelGallo-Morette as a potential sponsor. Both Respondent and Benson discussed
sponsorship of the Lois and Mike Show with Steve DelGallo, the president of
DelGallo-Morette.
36. Subsequently,
DelGallo-Morette provided a one-time payment of $2,500 to sponsor the Lois and
Mike Show. That payment was made on or
about August 21, 1998. Benson's
credible testimony was that she and DelGallo are good friends and that if there
was any reason for DelGallo-Morette to sponsor the show, it was because she had
just recently drawn the house plans for DelGallo free of charge.
37. Matters
that came before the Escambia County Commission for a vote regarding DelGallo-Morette
just before and after it became a sponsor of the Lois and Mike Show include the
following:
a. On
June 23, 1998, the Commission approved the unanimous recommendation of the Bid
Review Committee to award a lump sum contract to DelGallo-Morette, in the
amount of $89,5000 as the lowest, most responsive, and most responsible bidder,
for a renovation construction project.
This item was unanimously approved by the Commission, upon motion made
by Respondent. This vote occurred prior
to any sponsorship funds being paid to B & W Productions by DelGallo-Morette.
b. On
June 30, 1998, upon motion by Respondent, the Commission approved an increase
in maximum price, by a sum not to exceed $385,000, for telecommunication system
improvements at the M.C. Blanchard Judicial Center pursuant to a contract
approved by the Commission on November
19, 1996, with Brown and Root Building Company, in association with DelGallo-Morette. This vote occurred prior to any sponsorship
funds being paid to B & W Productions by DelGallo-Morette.
c. On
November 24, 1998, upon motion by Respondent, the Commission unanimously
approved a guaranteed maximum price on the Escambia County Control Booking and
Detention Facility in the amount of $14,661,576 with Brown and Root Building
Company, as the contractor, in association DelGallo-Morette and a total project
cost of $16,054,682 relative to Contract PD 97-97.155. This vote occurred after the one-time
sponsorship payment was made paid to B & W Productions by DelGallo-Morette.
d. On
March 18, 1999, the Commission approved amending Contract PD 95-96.113 with
Brown and Root Building Company, in association with DelGallo-Morette, to
increase the guaranteed maximum price of $900,000 to provide for additional
costs for construction change orders and other items associated with renovation
of the M.C. Blanchard Judicial Center Expansion Project. This item was unanimously approved as part
of the Commission's Consent Agenda by a vote of 4-0. Respondent was absent and did not vote.
38. With
respect to each of the matters which were the subject of votes referenced in
paragraph 37, neither Respondent nor B & W Productions provided any
services to DelGallo-Morette. Nor did
Respondent or B & W Productions have any responsibility for evaluating or
inspecting DelGallo-Morette's performance under the contracts addressed by the
votes. Neither Respondent nor B & W Productions provided any
services with respect to any of the projects which were the subjects of those
votes. Further, neither Respondent nor
B & W Productions benefited in any manner from the votes of the Commission
approving various items involving DelGallo-Morette.
39. Respondent
has never been employed or retained by DelGallo-Morette. Moreover, Respondent has never been engaged
in a business enterprise with DelGallo-Morette as a partner, a joint venturer,
a co-owner of property, or in a corporate entity whose shares are not listed on
a national or regional stock exchange.
40. Champion
is a forest products company whose primary products are a variety of papers,
lumber, and plywood. Champion has a
contract with Escambia County for the disposal of ash at the landfill in
exchange for natural gas.
41. In
August or September 1998, Respondent and Benson met with representatives of
Champion to discuss sponsorship of the Lois and Mike Show. Benson made most of the presentation which
focused on the negative public image of Champion in the community at that
time. Champion's negative image
resulted from Champion's planned wastewater discharge into Escambia Bay. The Escambia County Commission did not have
regulatory jurisdiction over this issue.
Rather, regulatory jurisdiction resided at the Department of
Environmental Protection and the Environmental Protection Agency.
42. Champion
was a segment sponsor of the Lois and Mike Show for a year, beginning in
September 1998 through September 1999, at a rate of $260 a month. As a segment sponsor, Champion paid $260
monthly. From October 1999 through
December 1999, Champion paid $178.50 per month to sponsor the show and in
December 1999, Champion paid $119 in sponsorship fees. After December 1999, Champion discontinued
its sponsorship of the show.
43. The
following matters that came before the Escambia County Commission regarding
Champion before and after it became a sponsor of the Lois and Mike Show:
a. On
July 28, 1999, the Commission approved retaining Chris H. Bentley, Esquire, to
monitor and advise the Commission on Champion's permitting activities regarding
discharge of treated wastewater into Escambia River. This item was unanimously approved by Commission upon motion
seconded by Respondent. This vote occurred
prior to any sponsorship funds being paid to B & W Productions by Champion
and did not address any item which Champion had before the Commission.
b. On
September 22, 1998, the Commission amended its License Agreements with Champion
for the period January 1, 1998, through December 31, 1998, to include
installation of gas monitoring wells at various landfill sites which was
inadvertently omitted from the prior approved agreements. This item was unanimously approved by the
Commission, upon motion made by Respondent.
This vote occurred prior to any sponsorship funds being paid to B &
W Productions by Champion.
c. On
October 8, 1998, the Commission took two actions concerning Champion. First, it voted to accept, for filing in the
minutes of the Commission, the "Escambia County Citizens' Executive Point
Paper" regarding Champion's proposed discharge of wastewater into the
Escambia River. This action was taken
unanimously, upon motion seconded by Respondent. Second, the Commission voted to approve the staff's making a
written request to Environmental Protection Agency's (EPA) "Technology
Team" to evaluate the impact of Champion's proposed wastewater discharge
into Escambia Bay relative to the request of the Escambia County Citizen's
Coalition, Inc. This action was taken
unanimously, upon motion made by Respondent.
This vote occurred prior to any sponsorship funds being paid to B & W Productions by Champion and did
not address any item which Champion had before the Commission.
d. On
November 5, 1998, the Commission discussed a proposal from the Department of
Environmental Protection that Escambia County form a partnership with Santa
Rosa County and the EPA for a unified peer review approach to Champion's
proposed relocation wastewater discharge point and to analyze the processing of
wastewater discharge permitted for Champion and its impact on Escambia Bay and
Perdido Bay. The Commission voted
unanimously to refer to DEP's proposal to the County's Department of Neighborhood
and Environmental Services for analysis and recommendation. This vote occurred
after sponsorship funds were paid to B & W Productions by Champion and did
not address any item which Champion had before the Commission.
e. On
November 24, 1998, the Commission approved the renewal of four License
Agreements with Champion for the operation of water quality monitoring and gas
wells located at various landfill sites, for the period January 1, 1999,
through December 31, 1999. This item
occurred after sponsorship funds were paid to B & W Productions by
Champion.
f. On
February 2, 1999, the Commission adopted a resolution urging Champion to use
monies encumbered for construction and permitting of its proposed pipeline to
the Escambia River to fund improvements to the effluent being dumped into
Eleven Mile Creek. This item was
approved by the Commission, by a vote of 3-2, with Respondent voting in the
affirmative. This vote occurred after
sponsorship funds were paid to B & W Productions by Champion and did not
address any item which Champion had before the Commission.
g. On
April 8, 1999, the Commission authorized staff to negotiate the purchase of a
parcel of property from Champion to be used as a district park. This item was unanimously approved by the
Commission, upon motion made by Respondent, with Commissioner Boss absent. This vote occurred after sponsorship funds
were paid to B & W Productions by Champion and after responsibility for
collecting and accounting for sponsorship funds for the Lois and Mike Show was
transferred to BLAB TV.
h. On
April 22, 1999, the Commission amended a previously approved Qualified Industry
Tax Refund Incentive for Champion's dimensional lumber production
facility. This item was unanimously
approved by the Commission, upon motion made by Respondent, with Commissioner
Robertson absent. This vote occurred
after sponsorship funds were paid to B & W Productions by Champion and
after responsibility for collecting and accounting for sponsorship funds for
the Lois and Mike Show was transferred to BLAB TV.
i. On June
22, 1999, the Commission adopted an ordinance establishing an economic
development ad valorem tax exemption for Champion for its expansion of its
Pensacola Mill located in Cantonment and for its hiring of additional
employees. (Champion had expended $40
million in improvements at the facility that resulted in increased production
and employment.) An employee of
Champion met individually with Respondent as well as other members of the
Commission to discuss this issue. The
value of the ad valorem tax exemption to Champion was $1.8 million spread over
6.9 years. This item was unanimously
approved by the Commission. This vote
occurred after sponsorship funds were paid to B & W Productions by Champion
and after responsibility for collecting and accounting for sponsorship funds
for the Lois and Mike Show was transferred to BLAB TV.
j. On
July 15, 1999, the Commission approved
the purchase of real property for a park from Champion for $375,000. This item was approved as part of the
Commission's Consent Agenda by a vote of
4-0, with Respondent absent.
44. With
respect to each of the matters which were the subject of votes referenced in
paragraph 43, neither Respondent nor B & W Productions provided any
services to Champion. Nor did
Respondent or B & W Productions have any responsibility for evaluating or
inspecting Champion's performance under the items addressed by the votes. Neither Respondent nor B & W Productions
provided any services with respect to any of the matters which were the subject
of these votes. Neither Respondent nor
B & W Productions benefited in any manner from the votes of the Commission
on these items involving Champion.
Respondent had no interest in the real property which the Commission
directed staff to negotiate with Champion regarding purchase by the county.
45. Respondent
has never been employed or retained by Champion. Moreover, Respondent has never been engaged in a business
enterprise with Champion as a partner, a joint venturer, a co-owner of
property, or in a corporate entity whose shares are not listed on a national or
regional stock exchange.
46. Respondent
was present and voted in favor of all of the issues involving sponsors as set
forth in paragraphs 25, 31, 37, and 43 above, except as otherwise noted.
47. All
of the aforementioned sponsors paid for the sponsorship of the Lois and Mike
Show. Furthermore, two of these
sponsors, Baskerville-Donovan and Champion, continued to make monthly
sponsorship payments in months just before, as well as after the votes, in the
amounts of $200 and 260, respectively.
48. Since
the sponsorships reduced the personal contributions that had to be made by
Respondent and his business associate, Benson, for the airing of the Lois and
Mike Show, they directly benefited from money received from sponsors who did
business with and regularly appeared before the Escambia County Commission.
49. The
facts show that all four of the above-mentioned sponsors were doing business
with the Escambia County Commission and that both Baskerville-Donovan and
Champion made sponsorship payments for the Lois and Mike Show during this
interim period after dissolution but prior to the time that Respondent
transferred his interest in the show to Lois Benson.
50. Neither
Respondent nor Benson believed that soliciting sponsorship from businesses that
appear before the Escambia County Commission for a vote was a conflict. However, Respondent's contractual
relationship with B & W Productions, and its interest in the Lois and Mike
Show, his direct solicitation of sponsorships from businesses appearing before
the County Commission, and Respondent's and B & W's dependence upon funds
derived from those sponsors, constituted a continuing and frequently recurring
conflict between Respondent's private interests and the performance of his
public duties as a member of the Escambia County Commission.
CONCLUSIONS OF LAW
51. The
Division of Administrative Hearings has jurisdiction over the parties and the
subject matter of this proceeding.
Section 120.57(1), Florida Statutes.
52. 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.
53. 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 vs. J.W.C.
Co., 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
Ethics Commission, through its Advocate, that is asserting the
affirmative: namely that Respondent violated
Sections 112.313(7)(a) and 112.3143(3)(a), Florida Statutes. Therefore, the Commission must establish by
clear and convincing evidence the elements of the alleged violations. Latham vs. Commission on Ethics, 694
So. 2d 83 (Fla. 1st DCA 1997), citing Department of Banking and Finance v.
Osborne Stern, 670 So. 2d 932 (Fla. 1996), and Ferris v. Turlington,
510 So. 2d 292 (Fla. 1987). See also
Section 120.57(1)(j), Florida Statutes.
54. As
noted by the Florida Supreme Court:
[C]lear
and convincing evidence requires that the evidence must be found to be
credible; the facts to which the witnesses testify must be distinctly
remembered; the testimony must be precise and explicit and the witnesses must
be lacking in confusion as to the facts in issue. The evidence must be of such weight that it produces in the mind
of the trier of fact a firm belief or conviction, without hesitancy, as to the
truth of the allegations sought to be established.
In
Re Davey, 645 So. 2d 398,
404 (Fla. 1994), quoting Slomowitz v. Walker, 429 So. 2d 797, 800 (Fla.
4th DCA 1993). See also Evans
Packing Company v. Department of Agriculture and Consumer Services, 550 So.
2d 112, 115, n.5 (Fla. 1st DCA 1989).
55. It
has been alleged that Respondent had an employment or contractual relationship
with B & W Productions which created a continuing or frequently recurring
conflict between his private interests and the performance of his public duties
or which impeded the full and faithful discharge of his public duties in
violation of the second clause of Section 112.313(7)(a), Florida Statutes. That section provides, in pertinent part, as
follows:
(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 or she 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 or her private interests and the
performance of his or her public duties or that would impede the full and
faithful discharge of his or her public duties. (Emphasis Supplied)
56. Section
112.312(8), Florida Statutes, provides that "'[C]onflict' or 'conflict of
interest' means a situation in which regard for a private interest tends to
lead to disregard of a public duty or interest."
57. In
order to establish a violation of the second part of Section 112.313(7)(a),
Florida Statutes, the following elements must be proved by clear and convincing
evidence:
1.
The Respondent must have been a public officer or employee.
2. The Respondent must have held an employment
or contractual relationship that will:
a. Create a continuing or frequently recurring conflict between the
Respondent's private interests and the performance of the Respondent's public
duties; or
b. Impede
the full and faithful discharge of the Respondent's public duties.
58. Respondent
has stipulated that he was a public officer and, as such, subject to the
requirements of Part III, Chapter 112, Florida Statutes, the Code of
Ethics. Therefore, the first element is
established as to the allegations regarding Section 112.313(7)(a), Florida
Statutes.
59. Next,
to establish a violation of the second clause of Section 112.313(7)(a), Florida
Statutes, it must be determined whether Respondent's relationship with B &
W Productions created a conflict or impeded the full and faithful discharge of
his public duties. Here, the clear and
convincing evidence established that Respondent had a contractual relationship
with B & W Productions and that the
relationship created a continuing or frequently recurring conflict between
Respondent's private interests and the performance of his public duties.
60. In Zerweck
v. Commission on Ethics, 409 So. 2d 57 (Fla. 4th DCA 1982), the court
upheld the validity of Section 112.31.(7), Florida Statutes, against unconstitutional
vagueness, and held that the provision establishes an objective standard of
conduct and does not require a finding of actual corruption to establish a
violation thereof. Zerweck held
that:
.
. . Section 112.313(7)(a), Florida Statutes (1979), establishes an objective
standard which requires and 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 and distinct or whether they coincide
to create as situation which "tempts dishonor " Id. at 61.
61. For
purposes of finding a violation under the second clause of Section
112.313(7)(a), Florida Statutes, the clear and convincing evidence at hearing
establish that Respondent's public duty of independence and impartiality was in
conflict with Respondent's private financial and business interests as it
related to B & W Productions and its production of the Lois and Mike Show.
62.
At hearing, the uncontroverted evidence demonstrated that B & W
Production's sole source of revenue was derived from sponsors, many of whom
were solicited by Respondent. Moreover,
the clear and convincing evidence established that Respondent personally and
successfully solicited sponsorships for B & W Productions from firms who
did business with and regularly appeared before the Escambia County Commission.
63. Here,
it is significant, and the evidence is undisputed, that at the time Respondent
solicited these sponsorships on behalf of B & W Productions, the subject firms
had on-going contracts with Escambia County.
Furthermore, the evidence established that pursuant to agreements
between B & W Productions and the subject firms, many of the sponsorship
payments were made to B & W Productions or BLAB TV, just before or after
votes were made on matters affecting the firms.
64. In
this case, there is no evidence that Respondent either misused or intended to
misuse his public position to promote or further his private interests. However, such a finding is not necessary to establish
a violation of the second clause of Section 112.313(7)(a), Florida
Statutes. Application of the standard
set forth in Zerweck requires only that the contractual relationship
create a situation which "tempts dishonor." The established facts in this case create such a situation.
65. The
second allegation is that Respondent voted on measures that came before the
Escambia County Commission regarding Baskerville-Donovan, Carlan Killam
Consulting, Champion, and DelGallo-Morette in violation of Section
112.3143(3)(a), Florida Statutes. That
section provides, in pertinent part, as follows:
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(2); 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 the officer's 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.
66. The term "business associate" as
used in Section 112.3143(3)(a), Florida Statutes, is defined by Section
112.312(4), Florida Statutes, as follows:
"Business
associate" means any person or entity engaged in or carrying on a business
enterprise with a public officer, public employee, or candidate as a partner,
joint venturer, corporate shareholder where the shares of such corporation are
not listed on any national or regional stock exchange, or co-owner of property.
67. In
order to establish a violation of Section 112.3143(3)(a), Florida Statutes, the
following elements must be proved by clear and convincing evidence:
1. Respondent
must have been a county, municipal, or other local public officer.
2. Respondent
must have:
a. Voted
on a measure that inured to his special private gain or loss; or
b. Knowingly
voted on a measure that inured special private gain or loss of any principal by
whom he was retained, or to the parent organization or subsidiary of a
corporate principal by whom he is retained, other than agency defined in
Section 112.312(2), Florida Statutes; or
c. Knowingly
voted on a measure that inured to the special private gain of a relative or
business associate; and/or
3. Respondent
must have failed to publicly announce to the assembly the nature of his
interests in the matter being voted on prior to the vote being taken.
68. Respondent
has stipulated that he was a public officer and, as such, subject to the
requirements of Part III, Chapter 112, Florida Statutes. Therefore, the first element is established
as to the allegations regarding Section 112.3143(3)(a), Florida Statutes.
69. The
other elements required to show a violation of Section 112.3143(3)(a), Florida
Statutes, have not been proved. The
evidence presented at the final hearing failed to demonstrate that Respondent's
votes in favor of sponsors of the Lois and Mike Show inured to his own special
private gain or to the special private gain of his business associate, Benson,
and their corporation, B & W Productions.
70. Penalties
that may be imposed for any violation of the Code of Ethics include removal or
suspension from office, public censure and reprimand, forfeiture of no more
than one-third salary per month for no more than 12 months, and a civil penalty
not to exceed $10,000. Section 112.317,
Florida Statutes.
RECOMMENDATION
Based upon the foregoing Findings of Fact
and Conclusions of Law, it is hereby
RECOMMENDED that the Ethics Commission enter
a final order and public report finding that Respondent, David Whitehead: (1) did not violate Section 112.3143(3)(a), Florida Statutes; and (2)
violated Section 112.313(7)(a), Florida Statutes. It is further recommended that for the violation of Section 112.313(7)(a),
Florida Statutes, the Commission impose a civil penalty of $2,000 against
Respondent and issue a public censure and reprimand.
DONE
AND ENTERED this 15th day of August, 2000, in Tallahassee, Leon County,
Florida.
___________________________________
CAROLYN S. HOLIFIELD
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
www.doah.state.fl.us
Filed with the Clerk of the
Division of Administrative Hearings
this 15th day of August, 2000.
COPIES FURNISHED:
James H. Peterson,
III, Esquire
Office of the
Attorney General
The Capitol, Plaza
Level 01
Tallahassee, Florida 32399-1050
Mark Herron, Esquire
Akerman, Senterfitt
& Edison, P.A.
301 South Bronough
Street, Suite 200
Tallahassee,
Florida 32801
Sheri L. Gerety,
Agency Clerk
Florida Commission
on Ethics
2822 Remington Green
Circle, Suite 101
Post Office Drawer
15709
Tallahassee,
Florida 32317-5709
Philip C. Claypool,
General Counsel
Florida Commission
on Ethics
2822 Remington Green
Circle, Suite 101
Post Office Drawer
15709
Tallahassee,
Florida 32317-5709
Bonnie J. Williams,
Executive Director
Florida Commission
on Ethics
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 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.