BEFORE THE
STATE OF
COMMISSION ON ETHICS
In re NEVIN
ZIMMERMAN, )
) Complaint No. 03-084
Respondent. ) DOAH Case No. 05-4462EC
)
) Final Order No.06-316
___________________________)
FINAL ORDER AND PUBLIC REPORT
This matter
came before the State of
Background
This matter
began with the filing of an ethics complaint by Kenneth J. Kopczynski ("Complainant"
or "Kopczynski"), on July 14, 2003, against Nevin Zimmerman
("Respondent" or "Zimmerman"), alleging that the Respondent
(as Attorney for Bay County, Florida) violated Sections 112.313(4),
112.3148(4), and 112.3148(8), Florida Statutes, regarding an alleged trip to
Tennessee and Arizona provided by a company (or its employees, agents, or
representatives) doing business with or seeking to do business with the County.[1] By order dated August 6, 2003, the Commission
on Ethics' Executive Director determined that the allegations of the complaint
were legally sufficient to indicate possible violations of the statutes and
ordered Commission staff to investigate the complaint, resulting in a Report Of
Investigation dated July 8, 2004. By
order dated September 8, 2004, the Commission found probable cause to believe
the Respondent, as Bay County Attorney, violated Section 112.3148(4), Florida
Statutes, by accepting from Corrections Corporation of America (CCA) expense-paid
trips valued at over $100 to Tennessee and Arizona; and found probable cause to
believe the Respondent violated Section 112.3148(8), Florida Statutes, by failing
to file a CE Form 9, Quarterly Gift Disclosure, based upon gifts received from
CCA. Subsequently, the matter was
forwarded to DOAH for assignment of an ALJ to conduct a formal hearing and
prepare a recommended order. A formal
evidentiary hearing was held before the ALJ on June 15, 2006 (including the
presentation of witnesses and the admission of exhibits); a transcript of the
hearing was provided; and both the Respondent and the Advocate for the
Commission on Ethics filed proposed recommended orders with the ALJ. On August 17, 2006, the ALJ entered his
Recommended Order (RO) recommending that the Commission issue a final order and
public report finding that the Respondent did not violate Section 112.3148(4)
or Section 112.3148(8), Florida Statutes, and recommending that the ethics
complaint filed against the Respondent by the Complainant be dismissed. On September 1, 2006, the Advocate timely
filed (with the Commission) exceptions to the RO; and on September 11, 2006 the
Respondent filed a response to the Advocate's exceptions. Both the Respondent and the Advocate were
notified of the date, time, and place of our final consideration of this
matter; and both were given the opportunity to make argument during our
consideration.
Standards of Review
Under
Section 120.57(1)(l), Florida Statutes, an agency may reject or modify the
conclusions of law and interpretations of administrative rules contained in a
recommended order. However, the agency
may not reject or modify findings of fact made by an ALJ unless a review of the
entire record demonstrates that the findings were not based on competent,
substantial evidence ("CSE") or that the proceedings on which the
findings were based did not comply with the essential requirements of law. See, e.g., Freeze v. Department of
Business Regulation, 556 So. 2d 1204 (
The agency
may not reweigh the evidence, may not resolve conflicts in the evidence, and
may not judge the credibility of witnesses, because such evidential matters are
within the sole province of the ALJ. Heifetz
v. Department of Business Regulation, 475 So. 2d 1277, 1281 (
Under
Section 120.57(1)(l), Florida Statutes, an agency may reject or modify the
conclusions of law over which it has substantive jurisdiction and the
interpretations of administrative rules over which it has substantive
jurisdiction. When rejecting or
modifying such conclusion of law or interpretation of administrative rule, the agency
must state with particularity its reasons for rejecting or modifying such
conclusion or interpretation and must make a finding that its substituted
conclusion or interpretation is as or more reasonable than that which was
rejected or modified.
Having reviewed
the RO and the entire record of the proceeding, the Advocate's exceptions, and
the Respondent's response to the exceptions, and having heard the arguments of
the Advocate and the Respondent, the Commission on Ethics makes the following
rulings, findings, conclusions, dispositions, and/or recommendations:
Rulings on Advocate's Exceptions
1. The Advocate takes exception to paragraph 41
of the ALJ's RO, taking issue with the ALJ's reasoning as to whether "transportation"
and "lodging" can constitute "gifts" for purposes of
Section 112.3148, Florida Statutes, and arguing that paragraph 41 misstates the
law in this regard.
This
exception is accepted to the extent that it takes issue with the ALJ's failure
to recognize that lodging is defined as a gift under Section 112.312(12)(a)7,
Florida Statutes, because "lodging" is enumerated in Section
112.312(12)(a)7. This exception is
rejected to the extent that it argues that the ALJ failed to recognize that
transportation or lodging can constitute gifts because paragraph 41 clearly
recognizes that they can. Further,
because paragraph 41 is a conclusion of law, the Commission can reject or modify
it under Section 120.57(1)(l), Florida Statutes. Therefore, to the extent, if any, that
paragraph 41 misstates the law, for clarity, the Commission hereby modifies it
to state that "lodging" is defined as a "gift" under
Section 112.312(12)(a)7, Florida Statutes, and that both
"transportation" and "lodging" can constitute a gift for
purposes of Section 112.3148, Florida Statutes.[2]
2. The
Advocate takes exception to paragraph 42 of the RO, arguing that the ALJ relied
on a Black's Law Dictionary definition of "donee" (and in so
doing ignored the Commission's administrative rule which defines
"donee") in finding, in the last sentence of paragraph 42, that
"[t]he record is clear that it was the intent of CCA to give air
transportation and lodging to Bay County," and arguing that
"donee" under the Commission's rule only includes natural persons
(not counties or other government entities), and further arguing that intent of
a donor is not relevant to the issue of the identity of a "donee"
(public employee versus the employee's government entity) where the natural
person (public employee) directly receives an item defined as a gift (further
arguing that intent of a donor is relevant only in indirect gift situations).
This exception is rejected as to the last
sentence of paragraph 42, which is a finding of fact.[3] However, to the extent that paragraph 42
seeks to substitute a law dictionary definition of "donee" for the
Commission's promulgated rule definition of the same term, this exception is
accepted. It is the province of the
Commission under Section 120.57(1)(l), Florida Statutes, to construe the
meaning of a law and its terms.
Nevertheless, to the extent that the Advocate argues that, under various
rules of the Commission, intent of the donor as to whom the donor wishes to
bestow a gift upon is irrelevant to a determination by an ALJ or by the
Commission as to the identity of the donee, or to the extent that the Advocate
argues that a government entity (as opposed to its employee) can never be a
donee when the employee directly receives an item within the definition of
"gift," this exception is rejected.
Actual or physical receipt of an item, intent of the donor, and other
factors can, depending upon the circumstances, be relevant as to whether a
given public employee (reporting individual) has received a gift in violation
of Section 112.3148, Florida Statutes.[4]
3. The
Advocate excepts to paragraph 43 (which essentially states that
4. The
Advocate excepts to paragraph 44 of the RO, arguing that, contrary to the ALJ's
determination, as a matter of law the exclusion from the definition of
"gift" codified at Section 112.312(12)(b)1, Florida Statutes
("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."), cannot apply to
the employment which constitutes the donee's public position.
This exception is accepted.[5] Contrary to the conclusion of the ALJ,
Commission Rule 34-13.214(1), Florida Administrative Code, provides that
"'[a]ssociated primarily with the donee's employment or business' means
associated with the donee's principal employer or business occupation and
unrelated to the donee's public position."[6]
5. The
Advocate excepts to paragraphs 45 and 46 of the RO, arguing that the ALJ's
interpretation of the language of Section 112.3148(4), Florida Statutes
(". . . 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."), to allow for a "simultaneous transference" of a
gift [i.e., the Respondent's receiving the substance or benefit of the items
provided by CCA (the trip to Nashville) as an agent or employee of Bay
County—the ultimate recipient (donee)] is an incorrect conclusion as to the
meaning of the language.
This exception is rejected. Paragraph 45 is an accurate statement of the
law; and the Advocate agrees in his exception that it is. Regarding paragraph 46, the Commission has
never held that a natural person recipient of a gift for a governmental entity
must "hold" a gift for any period of time in order for the gift to
come within the language stated in paragraph 45.[7] Rather, we conclude that the language of
Section 112.3148(4) referred to in paragraph 45 allows for both immediate and
delayed transfer of gifts to governmental entities received by a natural person
(reporting individual), provided that any delay in transfer does not exceed the
time reasonably necessary to arrange for the transfer. The other determinations of paragraph 46 are
findings of fact regarding which we are severely constrained by Section
120.57(1)(l).[8]
6.
The Advocate excepts to paragraph 49 of the RO,
arguing that it misstates and mischaracterizes the factual summary and holding
of CEO 91-21 (gift acceptance: county supervisor of elections accepting meals,
transportation, and lodging from manufacturer of voting equipment to inspect
factory and products of manufacturer).
This
exception is rejected. The ALJ has not
misstated or mischaracterized CEO 91-21, which, in essence, holds that
after-the-fact reimbursement to the government entity is permissible. Further, the last two sentences of paragraph 49
are findings of fact to which the Advocate did not take exception, and
regarding which we are severely constrained under Section 120.57(1)(l).[9]
The
Advocate excepts to paragraph 50 of the RO, arguing that the ALJ incorrectly
found that the Respondent did not receive a gift and, therefore, that the
Respondent did not violate Section 112.3148(8), Florida Statutes, by not
reporting a gift. This exception is
rejected. The ALJ made findings of fact
that the Respondent did not receive a gift.
7. To
summarize and to clarify our view of the gift law in this area, when an
individual is transported or provided lodging and it is paid for or provided by
another, so long as that individual did not provide equal or greater
consideration to the payor or provider for that transportation or lodging, the
individual received a “gift” as that term is defined in Section 112.312(12),
unless the circumstances are specifically excluded by a paragraph within
Section 112.312(12). To the extent that
our opinion CEO 91-71, which concerned legal services, would imply otherwise, that
opinion is revoked.
8. We find this view of the law more reasonable
than that proposed by the ALJ, because it does not require that any legal
fictions be created, such as a hypothetical 2003 “transfer” to the County of
transportation that was provided to the Respondent in 2000 or an “simultaneous”
transfer of lodging provided to the Respondent when the hotel bill was
paid. Nor does it require that the
employee’s agency be considered to have received “lodging” or “transportation,”
when an agency cannot be transported or lodged.
9. This
view of the law also is more consistent with opinions, rendered by the House
General Counsel during the first year after the law was enacted, about travel
that was taken in an official capacity.
For example, in HCO 91-29 the Member was appointed by the Speaker as
Florida’s representative for a Council of State Governments Environmental
Mission to Japan. As part of that representation, he was invited to an
educational briefing in Washington to assist him in fulfilling his obligations
as a representative. Because of State
budget shortfalls, the Council agreed to pay his expenses to Washington, which
expenses would normally be paid by the State of Florida. The opinion concluded
this would be a reportable gift from the Council, regardless of the fact that
it could be argued that the payment of such expenses was a gift to the State
rather than to the Member, as his expenses would otherwise be reimbursable by
the State. The Council’s payment of a
portion of the travel expenses to Japan were also a “gift,” notwithstanding
that the House paid for some of the travel and the travel was related to
fulfilling official duties as a Member of the House. HCO 91-44.
See also, HCO 91-09 (the payment or waiver of parking charges would constitute
a gift, “notwithstanding that the ultimate beneficiary is the State of Florida,
which would be required to reimburse you for the reasonable expenses incurred
by you when parking at the airport for state business.”); HCO 91-07 (“linkage”
institutes operated within the Department of Education providing travel and
other expenses for legislators and other public officials when traveling to the
foreign linkage partners would constitute a “gift.”); and HCO 91-13 (an
individual citizen may charter a plane for the purpose of flying the St. Johns
County Legislative Delegation round trip between their districts and
Tallahassee to address the Governor and Cabinet, but it would constitute a
“gift.”). Clearly, if the Legislature
intended that transportation in one’s official capacity for a matter involving
a public purpose is not a “gift,” these opinions would have reached completely
different results.
10. In
addition, if it is not a “gift” as defined by the Legislature whenever a public
officer or employee travels in an official capacity on public business at the
expense of a person or entity other than his or her public agency, we would be
forced to ignore the language of two very specific provisions of the gift
law. Subparagraphs 112.312(12)(a)7 and
(b)7 exclude from the definition of a “gift” transportation “provided to a
public officer or employee by an agency in relation to officially
approved governmental business.” As this language only addresses transportation
provided “by an agency,” it clearly means that transportation provided by
private persons and entities are not excluded from being a “gift,” even if the
travel has some official purpose. Also,
subsection 112.3148(6) allows the gift, but requires a very specific
disclosure, when certain governmental agencies give a gift worth over $100 “if
a public purpose can be shown for the gift,” even though those agencies may
employ lobbyists to influence the recipient’s public agency. Again, if it were not a “gift” when what is
being provided or paid for ultimately saves money for one’s public agency, we
would have to ignore this part of the gift law.
Findings
of Fact
Except
to the extent that the findings of fact of the ALJ substantively constitute
conclusions of law rejected or modified above, the Commission on Ethics accepts
and incorporates into this Final Order And Public Report the findings of fact
in the Recommended Order from the Division of Administrative Hearings.
Conclusions of Law
Except
to the extent rejected or modified above, the Commission on Ethics accepts and
incorporates into this Final Order And Public Report the conclusions of law in
the Recommended Order from the Division of Administrative Hearings.
Disposition
Procedurally, under the APA we cannot make
the findings of fact that will have to be made to apply our view of the law to
the circumstances presented here, which means that one alternative would be to
remand this case to the ALJ to make the findings of whether the Respondent
accepted a gift and whether his actions were prohibited by Section
112.3148(4). However, it is clear that
the Respondent acted under a mistaken impression of the law. In addition, this complaint is one of six
that were filed against County officers and employees who went on this trip, three
of which resulted in no probable cause findings and one of which has resulted
in a finding of no violation. All the
facts and circumstances surrounding these trips have been explored during the
preliminary investigations and hearings of these complaints. And now we have put all public officers and
employees on notice of how the law in this area should be read. Under these circumstances, we conclude that
it would be appropriate to exercise our authority under Section 112.324(11),
Florida Statutes, and to dismiss this complaint based on our determination that
the public interest would not be served by proceeding further, with the
issuance of this final order and public report.
Accordingly, the Commission on
Ethics dismisses the complaint pursuant to Section 112.324(11), Florida
Statutes.
ORDERED by the State of
____________________________________
Date Rendered
____________________________________
Norman M. Ostrau
Chair
THIS
ORDER CONSTITUTES FINAL AGENCY ACTION.
ANY PARTY WHO IS ADVERSELY AFFECTED BY THIS ORDER HAS THE RIGHT TO SEEK
JUDICIAL REVIEW UNDER SECTION 120.68, FLORIDA STATUTES, BY FILING A NOTICE OF
ADMINISTRATIVE APPEAL PURSUANT TO RULE 9.110, FLORIDA RULES OF APPELLATE
PROCEDURE, WITH THE CLERK OF THE COMMISSION ON ETHICS, P.O. DRAWER 15709,
TALLAHASSEE, FLORIDA 32317-5709 (PHYSICAL ADDRESS AT 3600 MACLAY BLVD., SOUTH,
SUITE 201, TALLAHASSEE, FLORIDA); AND BY FILING A COPY OF THE NOTICE OF APPEAL
ATTACHED TO WHICH IS A CONFORMED COPY OF THE ORDER DESIGNATED IN THE NOTICE OF
APPEAL ACCOMPANIED BY THE APPLICABLE FILING FEES WITH THE APPROPRIATE DISTRICT
COURT OF APPEAL. THE NOTICE OF
ADMINISTRATIVE APPEAL MUST BE FILED WITHIN 30 DAYS OF THE DATE THIS ORDER IS
RENDERED.
cc: Mr.
Albert T. Gimbel, Attorney for Respondent
Mr.
E. Gary Early, Attorney for Respondent
Mr.
Mark Herron, Attorney for Respondent
Mr.
Linzie F. Bogan, Commission Advocate
Mr.
Kenneth J. Kopczynski, Complainant
The
Honorable Harry L. Hooper
Division of Administrative Hearings
[1] The ALJ's reference in the RO to Sections
112.313(2), (6), and (7), Florida Statutes, is in error. None of these provisions was at issue before
the Commission or the ALJ.
[2] The Commission's reason for rejection or modification of the any contrary
conclusions of the ALJ is that Section 112.312(12), which is a part of the
definition of "gift," clearly encompasses both
"transportation" and "lodging"; and the Commission finds
that its substituted conclusions are as or more reasonable that any contrary
conclusions by the ALJ.
[3] The last sentence states that "[t]he
record is clear that it was the intent of CCA to give air transportation and
lodging to
[4] The Commission's reason for rejection or
modification of any contrary conclusions of the ALJ is that the Commission's
rule defining "donee" controls over any differing dictionary
definition; and the Commission finds that its substituted conclusions are as or
more reasonable than any contrary conclusions by the ALJ.
[5] The Commission's reason for rejection or
modification of any contrary conclusions of the ALJ is that the Commission's
administrative rule construing the meaning of the language of Section 112.3148(4)
at issue is contrary to the meaning ascribed to the language by the ALJ; and
the Commission finds that its substituted conclusions are as or more reasonable
than any contrary conclusions by the ALJ.
[6] However, failure of Section 112.312(12)(b)1
to encompass Respondent's situation does not result in a determination by the
Commission that Respondent violated Section 112.3148, given other content of
the RO and of this Final Order And Public Report.
[7] The Pritchard and Colon ethics
complaint matters (in which the Commission found probable cause at its June
2006 meeting) cited by the Advocate are pending hearing, settlement, and/or
final disposition, and thus should not be considered "precedent" as
to our interpretation of the meaning of the language referenced in paragraph
49. Issues as to all of the elements of
alleged violations of Section 112.3148(8), including issues of whether the
respondents accepted gifts, which are necessarily interwoven with the issue of
whether the items were a gift to their governmental entity, are still pending.
[8] The essence of this exception appears to go
to the substance of the ALJ's factual findings in paragraph 46 (that
[9] A point of the ALJ's findings in the last two sentences is that there is a similarity between the manufacturer's paying the government entity (not the supervisor) in CEO 91-21 and CCA's paying persons other than the Respondent (e.g., hotel, airline) in the instant matter: similar in that no one directly gave either the supervisor or the Respondent money for travel.