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 Nevin Zimmerman
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 Nevin Zimmerman (Mr. Zimmerman), of
The Commission, based on a Report of Investigation dated July 8,
2004, and upon consideration of the Commission's Advocate, entered an Order
Finding Probable Cause that was filed on September 8, 2004. This Order found probable cause to believe
Mr. Zimmerman violated Section 112.3148(4), Florida Statutes, by accepting from
Corrections Corporation of America (CCA), a trip to Nashville, Tennessee, and
Phoenix, Arizona, valued in excess of $100, and by failing to file a CE form 9,
Quarterly Gift Disclosure, based upon gifts received from CCA, in violation of
Section 112.3148(8), Florida Statutes.
This latter charge rejected the recommendation of the Advocate that,
based on the facts elucidated and the applicable law, probable cause did not
exist. The Commission dismissed all
other allegations.
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 Chief of Emergency Services Robert J.
Majka, Jr., and County Manager Jonathan A. Mantay, also of
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, both Mr. Zimmerman and the Advocate timely filed
their Proposed Findings of Fact and Conclusions of Law on July 31, 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 Zimmerman is
subject to the Code of Ethics. Mr. Zimmerman,
during times pertinent, as a partner in the law firm of Burke and Blue, P.A.,
was the
3. As County Attorney,
Mr. Zimmerman was ultimately responsible for addressing
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. Zimmerman, Chief of
Emergency Services Majka, and County Manager Mantay, were among those who were
designated to travel to
9. Mr. Zimmerman believed that if he could
convince CCA to pay travel expenses, he should do it so he could save the
taxpayers' money. His "marching
orders" for many years was that if there was an opportunity to require a
third party to pay an expense, then the third party should pay rather than
10. The third party payor policy was implemented
in a 1997 trip where Westinghouse, a vendor, 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. In that
instance, after researching the law surrounding the policy, Mr. Zimmerman
prepared a written opinion which stated that it was legally permissible to
require Westinghouse to fund the trip.
11. This policy was set forth in a letter by Mr.
Zimmerman dated October 30, 1997, which informed the county commissioners
that all expenses in connection with their travel, and with the travel of
staff, would be funded by Westinghouse.
He further stated that, "[it] is our opinion that the payment of
these necessary expenses are not 'gifts,' as that term is defined in State
law."
12. It was Mr. Zimmerman's understanding that the
13. Mr. Wiggins was not authorized by CCA to
approve the payment of travel expenses for customers or others. He forwarded Mr. Zimmerman's request to James
Ball, his supervisor. Subsequently, Mr.
Wiggins happened upon the CEO of CCA, a Dr. Crants, while walking about
the
14. Ultimately, as a result of these
conversations, CCA paid Trade Winds Travel, Inc., of
15. The request for the payment and the request
to visit CCA in
16. The Burke and Blue law firm made arrangements
for the trip. Mr. Zimmerman did not
involve himself in the detailed planning.
His firm does not customarily use Trade Winds Travel, Inc., which
indicates that the tickets were acquired directly by CCA. Someone from the Burke and Blue firm made hotel
reservations in
17. 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
18. The trip was authorized by the Bay County
Commission subsequent to several public discussions concerning the need for an
on-site visit to
19. As noted above, 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.
20. The airfare was paid
by CCA directly to Trade Winds Travel, Inc.
CCA did not ask for or receive reimbursement from either
21. Upon arrival in
22. The travelers ate dinner, February 24, 2000,
as a group that evening. Someone paid
for Mr. Zimmerman's dinner, but the record does not indicate that CCA paid for
it.
23. On Friday, February
25, 2000, Mr. Zimmerman and the other travelers toured the
24. That evening, at
CCA's expense, Mr. Zimmerman 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
25. Mr. Zimmerman 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
26. On Saturday, February
26, 2000, Mr. Zimmerman 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 Mr. Zimmerman, stayed at the San Carlos Hotel. On Tuesday, February 29, 2000, they all
returned to
27.
28. Mr. Zimmerman did not derive any person
financial benefit as a result of CCA paying the lodging expenses in
29. It is found as a fact that the cost of the
travel to
30. 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
31. 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),
32. 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.
33. Because of the penalties provided by Section
112.317, the Advocate must prove its case by clear and convincing evidence. Latham v.
34. It is found as a fact that the cost of the
travel to
35. 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.
* * *
(8)(a) Each
reporting individual or procurement employee shall file a statement with the
Secretary of State on the last day of each calendar quarter, for the previous
calendar quarter, containing a list of gifts which he or she believes to be in
excess of $100 in value, if any, accepted by him or her, except the following:
1. Gifts from relatives.
2. Gifts
prohibited by subsection (4) or s. 112.313(4).
3. Gifts otherwise required to be
disclosed by this section.
(b)
The statement shall include:
1.
A description of the gift, the monetary value of the gift, the name and
address of the person making the gift, and the dates thereof. If any of these
facts, other than the gift description, are unknown or not applicable, the
report shall so state.
2.
A copy of any receipt for such gift provided to the reporting individual
or procurement employee by the donor.
(c)
The statement may include an explanation of any differences between the
reporting individual's or procurement employee's statement and the receipt
provided by the donor.
(d)
The reporting individual's or procurement employee's statement shall be
sworn to by such person as being a true, accurate, and total listing of all
such gifts.
(e)
If a reporting individual or procurement employee has not received any
gifts described in paragraph (a) during a calendar quarter, he or she is not
required to file a statement under this subsection for that calendar quarter.
36. If Mr. Zimmerman is to be found to have
violated Section 112.3148(4), the Advocate must prove that:
a. Mr. Zimmerman 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.
37. 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.
38. It is undisputed that Mr. Zimmerman is a
reporting individual, and that he was transported by commercial air from
39. What remains to be decided, is whether Mr.
Zimmerman knowingly accepted a gift, in the form of transportation and
accommodations in
40. 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.
41.
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, can't 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.
42. 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
43. As noted in paragraph 12, above, CCA and Mr.
Zimmerman did not discuss giving anything to Mr. Majka, Mr. Mantay, or to
himself. Mr. Zimmerman prevailed upon
Mr. Wiggins to fund travel on behalf of
44.
The Code of Ethics recognizes that Mr. Zimmerman's situation did not
involve a gift to him 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.
45. 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."
46. In this case, the
"gift," if one concludes a gift was given to Mr. Zimmerman on behalf
of
47. 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
48. 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,
as the Commission noted.
49. 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
50. Because there was no
gift, there is no requirement for Mr. Zimmerman to make a report pursuant to
Section 112.3148(8). If it were found
that Mr. Zimmerman received a gift under section 112.3148(4), he would not be
required to file a report. See §
112.3148(8)(a)2.
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 Nevin Zimmerman did not
violate Section 112.3148(4) or (8), 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
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.