BEFORE THE
STATE OF FLORIDA
COMMISSION ON
ETHICS
In re LEO C. NICHOLAS, )
)
Respondent. ) Complaint No. 87-47
)
_________________________)
FINAL ORDER AND
PUBLIC REPORT
This matter came
before the Commission on Ethics for final action on review of the Recommended
Public Report of the Hearing Officer (a copy of which is attached and
incorporated by reference). The
Respondent filed exceptions to the Recommended Public Report, which recommends
that the Commission find that he violated Section 112.313(6), Florida Statutes,
by using his official position as City Manager of the City of Cape Canaveral to
order the City Building Official to issue a building permit. Having reviewed the Recommended Public
Report, the Respondent's exceptions, and the record of the public hearing of
this complaint, and having heard the arguments of counsel for the Respondent
and of the Commission's Advocate, the Commission makes the following findings,
conclusions, rulings, and recommendation:
The findings of
fact set forth in the Recommended Public Report are approved, adopted, and
incorporated herein, with the following exception. Paragraph 13 of the Hearing Officer's findings of fact refers to
a meeting between the Respondent and Mr. Gunn on March 26, 1989. Based on a review of the record, that
meeting occurred on March 26, 1987 and not 1989.
The Conclusions of
Law set forth in the Recommended Public Report are approved, adopted, and
incorporated herein.
The Respondent's
exception to paragraph 13 of the findings of fact contained in the Recommended
Public Report is adopted to the extent it relates to a meeting between the
Respondent and Mr. Gunn held on March 26, 1987 rather than on March 26, 1989,
as noted above.
The Respondent
filed exceptions to paragraphs 3, 7, 8, 9, 10, 11, 14, 16, 20, 22, 23, 25, 26,
27, 28, 29, and 30 of the findings of fact contained in the Hearing Officer's
Recommended Public Report, arguing that there was no competent substantial
evidence presented at the public hearing to support these findings of
fact. These exceptions are denied on
the basis that there is competent substantial evidence in the record to support
the findings.
Except as noted
above, the Respondent's exceptions to paragraphs 12 and 13 of the findings of
fact in the Recommended Public Report are denied as not constituting proper
exceptions to findings of fact. Rather
than arguing that there is not competent substantial evidence for a finding,
these exceptions argue that additional findings of fact should have been made by
the Hearing Officer.
The Respondent's
exceptions B 1 through B 8 (contained on pages 5 - 9 of the Respondent's
exceptions), which argue that the proceedings conducted by the Hearing Officer
did not comply with the essential requirements of law, also are denied. Based on a review of the record, no errors
have been demonstrated by Respondent's counsel which affected the fundamental
fairness of the proceeding to the degree that it could be concluded that the
proceedings on which the Hearing Officer's findings were based did not comply
with essential requirements of law.
With specific regard to the Respondent's arguments about the exchange
between Respondent's counsel and the Hearing Officer concerning whether counsel
was trying to embarrass the Hearing Officer, the record is clear that whether
or not there was such an attempt the Hearing Officer was not embarrassed and
there is no objective basis for finding that the fundamental fairness of the
proceeding was affected.
The Respondent also
filed exceptions to the rulings made by the Hearing Officer on his proposed
findings of fact contained in paragraphs 3, 4, 14, 16, 19, 20, 22, 24, 25,
26-28, 29, 30, 31, 32, 33, and 34 of the Respondent's Proposed Public Report. These exceptions are rejected on the basis
that the Respondent has failed to demonstrate that the Hearing Officer's action
on any of his proposed findings of fact was in error.
The Respondent's
exceptions to the conclusions of law contained in the Recommended Public Report
are denied, as there is competent substantial evidence to support the Hearing
Officer's findings of fact, as the Hearing Officer's conclusions of law are
consistent with Section 112.313(6), Florida Statutes, and as the facts found by
the Hearing Officer do support a finding of a violation of Section 112.313(6),
Florida Statutes. In particular, the
Commission finds that the grant of the building permit was a "special
benefit" within the meaning of Section 112.313(6), Florida Statutes.
Having found that
the Respondent, Leo C. Nicholas, as City Manager for the City of Cape
Canaveral, violated Section 112.313(6), Florida Statutes, as described in the
Recommended Public Report, pursuant to Sections 112.317(1) and 112.324(4),
Florida Statutes, it is the recommendation of the Commission on Ethics that the
Respondent be publicly censured and reprimanded and
that a civil
penalty in the amount of one thousand-five hundred dollars ($1,500.00) be
imposed against him by the City Council of the City of Cape Canaveral.
ORDERED by the
State of Florida Commission on Ethics meeting in public session on April 13,
1989.
_______________________________
Date Rendered
_______________________________
Karen S. Matteson
Chairman
Commission on Ethics
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, 2107 THE CAPITOL,
TALLAHASSEE, FLORIDA 32399-1450; AND BY
FILING A COPY OF 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 AND IS FILED WITH THE CLERK OF THE COMMISSION.
Copies furnished
to:
Mr. R. Frazier Solsberry, Attorney for
Respondent
Mr. Craig B. Willis, Commission Advocate
Ms. Helen S. Filkins, Complainant