Recommended
Order
This
cause came on for final hearing before Harry L. Hooper, Administrative Law
Judge with the Division of Administrative Hearings, on June 15, 2006, in
APPEARANCES
For Advocate: Linzie F. Bogan, Esquire
Advocate for the
Commission on Ethics
Office of the Attorney General
The Capitol, Plaza Level 01
For Respondent: Albert T. Gimbel, Esquire
Gary E. Early, Esquire
Messer, Caparello & Self, P.A.
Post Office Box 1876
STATEMENT OF THE ISSUE
The issue is whether Robert J. Majka, Jr., violated
the Florida Code of Ethics for Public Officers and Employees.
PRELIMINARY STATEMENT
Kenneth J. Kopczynski, of the Florida Police Benevolent
Association, authored a Complaint concerning Robert J. Majka, Jr. (Mr. Majka),
of
The Commission, based on a preliminary investigation, and upon
consideration of the Commission's Advocate, and subsequent to an Order For
Supplemental Investigation of Facts Materially Related to Complaint filed June
29, 2004, entered an Order Finding Probable Cause that was filed on September
8, 2004. This Order found probable cause
to believe Mr. Majka violated Section 112.3148(4), Florida Statutes, by
accepting from Corrections Corporation of America (CCA), a trip to
In a letter dated December 8, 2005, the Commission's Complaint
Coordinator notified the Division of Administrative Hearings that the Chairman
of the Commission had requested a public hearing into the matter. The Commission also forwarded to the Division
of Administrative Hearings, the cases of County Attorney Nevin Zimmerman and
County Manager Jonathan A. Mantay, also of
Pursuant to a Consent Motion for Limited Relinquishment of
Jurisdiction, the Count addressing the round of golf accepted from Gary Akers,
was not considered by the Administrative Law Judge. Thus the only issue litigated was whether Mr.
Majka knowingly violated Section 112.3148(4), Florida Statutes, by accepting a
gift in the form of CCA's payment for travel expenses valued at over $100, or
for which he reasonably believed was valued over $100, relative to a trip to
Nashville, Tennessee.
At
the hearing, the Advocate presented the testimony of two witnesses and offered
16 exhibits into evidence. Respondents
presented the testimony of four witnesses and offered five exhibits into
evidence.
A
Transcript was filed on June 30, 2006.
After the hearing, Mr. Majka timely filed his Proposed Findings of Fact
and Conclusions of Law on July 31, 2006.
The Advocate timely filed his Proposed Findings of Fact and Conclusions
of Law on August 1, 2006.
References
to statutes are to Florida Statutes (1999) unless otherwise noted.
FINDINGS OF FACT
1. Pursuant to Article II, Section 8, Florida
Constitution, and Section 112.320, the Commission is empowered to serve as the
guardian of the standards of conduct for the officers and employees of the
state. Pursuant to Sections 112.324 and
112.317, the Commission is empowered to conduct investigations and to issue a
Final Order and Public Report recommending penalties for violations of the Code
of Ethics for Public Officers and Employees (Code of Ethics).
2. Respondent Majka is
subject to the Code of Ethics.
Mr. Majka, during times pertinent, was Chief of Emergency Services
for
3. As Chief of Emergency
Services, Mr. Majka was in charge of the county's
corrections program. During times
pertinent he employed a staff member named Ann Cahall, whose duties included
interacting routinely with the county's
privatized corrections provider, CCA.
4. On or about August 31,
1999, the Bay County Commission was addressing the problem of inmate
overcrowding in its county correctional facilities, which were operated by
CCA. On or about that time, the county
correctional facility exceeded capacity by about 352 inmates.
5. The Bay County Commissioners
decided to address the issue. The Bay
County Commission directed County Manager Jonathan A. Mantay and his staff to
study the problem and to recommend courses of action. As a result of the study, two possible
courses of action were recommended.
6. One possible course of action was the
adoption of the "Lifeline" program operated by CCA in Nashville,
Tennessee, which CCA claimed would reduce recidivism by teaching inmates life
skills and addressing drug abuse, among other things. CCA's corporate headquarters is located in
7. The other possible course of action was to
emulate the program operated by Sheriff Joe Arpaio, of
8. In order to evaluate
the two courses of action, the Bay County Commission decided that three
commissioners and certain staff should travel to the two sites and evaluate the
programs. Mr. Majka, County Manager
Mantay, and County Attorney Zimmerman, were among those who were designated to
travel to
9. Mr. Majka's role, in giving that plan effect,
was to contact CCA and
10. County Attorney Zimmerman called Mr. Wiggins
on February 6, 2000, and inquired if CCA would pay for the airline tickets to
11. Mr. Wiggins was not authorized by CCA to
approve the payment of travel expenses for customers or others. He forwarded County Attorney Zimmerman's request
to James Ball, his supervisor.
Subsequently, Mr. Wiggins happened upon the CEO of CCA, a Dr. Crants,
while walking about the
12. Ultimately, as a result of these conversations,
CCA paid Trade Winds Travel, Inc., of
13. The request for the payment and the request
to visit CCA in
14.
15. The third party payor policy was also
reflected in a 1997 trip where Westinghouse was required by the county commissioners to pay for the commissioners' and county staff's trip to Vancouver, B.C.,
and Long Island, New York, to evaluate the transfer of the resource recovery
facility to another vendor. This was the
trip that County Attorney Zimmerman discussed with Mr. Wiggins.
16. This policy was set forth in a letter by County
Attorney Zimmerman dated October 30, 1997, which informed the
17. Prior to the trip to
18. Subsequently, Mr.
Majka was contacted by a Ms. Rogers in the
19. On Thursday, February
24, 2000, Messrs. Zimmerman, Majka, and Mantay, traveled with Bay County
Commissioners Danny Sparks, Richard Stewart, and Carol Atkinson, and
television reporter Carmen Coursey, by commercial air, to
20. The trip was authorized by the Bay County
Commission subsequent to several public discussions concerning the need for an
on-site visit to
21. Channel 13 television news reporter, Carmen
Coursey accompanied the officials. It is
clear that there was nothing about the trip that was accomplished sub rosa.
22. The airfare was paid
by CCA directly to Trade Winds Travel, Inc.
CCA did not ask for or receive reimbursement from either
23. Upon arrival in
24. The travelers ate dinner, February 24, 2000,
as a group that evening. Someone paid
for Mr. Majka's dinner, but the record does not indicate that CCA paid for it.
25. On Friday, February
25, 2000, Mr. Majka and the other travelers toured the
26. That evening, at
CCA's expense, Mr. Majka and the other travelers were transported by CCA to a
dinner that was paid for by CCA. CCA
neither asked for nor received reimbursement from
27. Mr. Majka and the
other travelers stayed two nights at the Marriott at a cost of $224.24. The cost of the hotel was paid by CCA, and
CCA neither asked for nor received reimbursement from
28. On Saturday, February
26, 2000, Mr. Majka and the other travelers departed for Phoenix by air and observed
Sheriff Arpaio's program the following Monday morning. They also toured the Phoenix Fire
Department. The travelers, with the
exception of County Attorney Zimmerman, stayed at the San Carlos Hotel. Mr. Majka's hotel bill in
29.
30. Mr. Majka did not derive any person financial
benefit as a result of CCA paying the lodging expenses in
31. Mr. Majka had a county credit card in his possession but by county policy he was not allowed to
charge meals on it. His usual practice,
when traveling on behalf of the county,
is to obtain receipts and file an expense report at the conclusion of the
trip. He would thereafter be reimbursed
for his travel expenses. He did not file
an expense report subsequent to this travel.
32. It is found as a fact that the cost of the
travel to
33. It was not uncommon for Mr. Wiggins and other
CCA officials to appear before the Bay County Commissioners on behalf of CCA,
or to otherwise interact with representatives of CCA. Brad Wiggins was a lobbyist, as that term is
defined in Section 112.3148(1)(b)1., and others interacted with
CONCLUSIONS OF LAW
34. The Division of
Administrative Hearings has jurisdiction over the subject matter of and the
parties to this proceeding. §§ 120.57(1)
and 112.324(3),
35. 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.
36. Because of the penalties provided by Section
112.317, the Advocate must prove its case by clear and convincing evidence. Latham v.
37. The issue in this case is narrowly drawn by
the Order Finding Probable Cause, which refers specifically to, " . . .
accepting payment for expenses valued at over $100 relative to his trip to
Nashville." Thus events that
occurred in
38. It is found as a fact that the cost of the travel
to
39. The pertinent
subsections of Section 112.3148, are set forth below:
112.3148. Reporting and prohibited receipt of gifts by
individuals filing full or limited public disclosure of financial interests and
by procurement employees
* * *
(2) As used
in this section:
* * *
(b)1.
"Lobbyist" means any natural person who, for compensation,
seeks, or sought during the preceding 12 months, to influence the governmental
decisionmaking of a reporting individual or procurement employee or his or her
agency or seeks, or sought during the preceding 12 months, to encourage the
passage, defeat, or modification of any proposal or recommendation by the reporting
individual or procurement employee or his or her agency.
* * *
(c) "Person" includes individuals,
firms, associations, joint ventures, partnerships, estates, trusts, business
trusts, syndicates, fiduciaries, corporations, and all other groups or
combinations.
(d)
"Reporting individual" means any individual, including a
candidate upon qualifying, who is required by law, pursuant to s. 8, Art. II of
the State Constitution or s. 112.3145, to file full or limited public
disclosure of his or her financial interests.
* * *
(4) A reporting individual or
procurement employee or any other person on his or her behalf is prohibited
from knowingly accepting, directly or indirectly, a gift from a political
committee or committee of continuous existence, as defined in s 106.011 or from
a lobbyist who lobbies the reporting individual's or procurement employee's
agency, or directly or indirectly on behalf of the partner, firm, employer, or
principal of a lobbyist, if he or she knows or reasonably believes that the
gift has a value in excess of $100; however, such a gift may be accepted by
such person on behalf of a governmental entity or a charitable
organization. If the gift is accepted on
behalf of a governmental entity or charitable organization, the person
receiving the gift shall not maintain custody of the gift for any period of
time beyond that reasonably necessary to arrange for the transfer of custody
and ownership of the gift.
40. If Mr. Majka is to be found to have violated
Section 112.3148(4), the Advocate must prove that:
a. Mr. Majka is a reporting individual;
b. who knowingly;
c. accepted a gift;
d. from a lobbyist who lobbies the reporting
individual's agency, or directly or indirectly on behalf of the partner, firm,
employer, or principal of a lobbyist;
e. and he knew or reasonably believed that the
gift had a value in excess of $100.
41. If the facts demonstrate that a gift was
accepted by a reporting individual on behalf of a governmental entity, it is a
complete defense to the offense alleged, if the person receiving the gift did
not maintain custody of the gift for any period of time beyond that reasonably
necessary to arrange for the transfer of custody and ownership of the gift.
42. It is undisputed that Mr. Majka is a
reporting individual, and that he was transported by commercial air from
43. What remains to be decided, is whether Mr.
Majka knowingly accepted a gift, in the form of transportation and
accommodations in
44. The definition of a "gift" for
purposes of
the Code of Ethics is provided
in Section 112.312.
112.312. Definitions
As
used in this part and for purposes of the provisions of s. 8, Art. II of the
State Constitution, unless the context otherwise requires:
* * *
(12)(a)
"Gift," for purposes of ethics in government and financial
disclosure required by law, means that which is accepted by a donee or by
another on the donee's behalf, or that which is paid or given to another for or
on behalf of a donee, directly, indirectly, or in trust for the donee's benefit
or by any other means, for which equal or greater consideration is not given
within 90 days, including:
* * *
7.
Transportation, other than that provided to a public officer or employee
by an agency in relation to officially approved governmental business, lodging,
or parking.
* * *
(b) "Gift" does
not include:
1.
Salary, benefits, services, fees, commissions, gifts or expenses
associated primarily with the donee's employment, business, or service as an
officer or director of a corporation or organization.
45.
Construing this statute in the most simplistic way, one could conclude
that transportation is automatically a gift.
If one does that, however, then lodging, using the same logic, cannot be
a gift since it is not enumerated in Section 112.312(12)(a)1-14. It is apparent, therefore, that the Florida
Legislature meant to include lodging under the general definition at Section
112.312(12), and intended to also provide in definite terms that transportation
was something that could, depending on the facts elucidated, be a gift.
46. The word "donee" is not
specifically defined by Section 112.312, or elsewhere in the Code of
Ethics. According to Black's Law
Dictionary, a "donee" is, ". . . one to whom a gift is
made." Black's Law Dictionary,
4th Ed. Rev. 1975. The record is clear
that it was the intent of CCA to give air transportation and lodging to
47. As noted in paragraph 10, above, CCA and Mr.
Zimmerman did not discuss giving anything to Mr. Majka. Mr. Zimmerman prevailed upon Mr. Wiggins to
fund travel on behalf of
48.
The Code of Ethics recognizes that Mr. Majka did not receive a gift, by
noting in Section 112.312(12)(b)1, that "gift" does not include,
". . . expenses associated primarily with the donee's employment . . .
." The travel was clearly part of
his employment.
49. The Code of Ethics
also recognizes that an employee may receive a gift on behalf of a governmental
agency as noted in the last two sentences of Section 112.3148(4), which states,
". . . however, such a gift may be accepted by such person on behalf of a
governmental entity or a charitable organization. If the gift is accepted on behalf of a
governmental entity or charitable organization, the person receiving the gift shall
not maintain custody of the gift for any period of time beyond that reasonably
necessary to arrange for the transfer of custody and ownership of the
gift."
50. In this case, the
"gift," if one concludes a gift was given to Mr. Majka on behalf of
51. Commission on Ethics
Opinion 91-71 involved a Charlotte County Commissioner who accepted free legal
representation in the successful defense of a recall petition. The partner of the attorney providing the
legal representation occasionally lobbied the
52. Interestingly,
Committee on Ethics Opinion 91-71 stated in part, "We are reluctant to get
involved in matters regarding the procedures to be used by a county commission
in conducting its business." It may
be tempting to note in this case that it may be bad business for a county to
prevail upon a vendor, or an entity desiring to be a vendor, to provide travel
and lodging to a county commissioner or person on a county staff. However, determining the wisdom of that
policy is not the province of the Administrative Law Judge, or the Commission
on Ethics, as the Commission noted.
53. A consideration of
Committee on Ethics Opinion 91-21 is also helpful. In that case the Okaloosa County Supervisor
of Elections inquired if she might travel to
RECOMMENDATION
Based upon the Findings of Fact and Conclusions of Law, it is
RECOMMENDED that the Commission on Ethics
issue a Final Order and Public Report finding that Robert J. Majka, Jr. did not
violate Section 112.3148(4), Florida Statutes, and dismissing the complaint
filed against him.
DONE
AND ENTERED this 17th day of August 2006, in
S
HARRY L. HOOPER
Administrative Law
Judge
Division of
Administrative Hearings
The
(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 17th day of
August, 2006.
COPIES FURNISHED:
Linzie F. Bogan, Esquire
Advocate for the
Commission on Ethics
Office of the Attorney General
The Capitol, Plaza Level 01
Albert T. Gimbel, Esquire
Gary E. Early, Esquire
Mark Herron, Esquire
Messer, Caparello & Self, P.A.
Post Office Box 1876
Kaye Starling, Agency Clerk
Post Office Drawer 15709
Bonnie J. Williams, Executive Director
Post Office Drawer 15709
Philip C. Claypool, General Counsel
Post Office Drawer 15709
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.