STATE OF FLORIDA
COMMISSION ON ETHICS
In re ROBERT HILDRETH )
) DOAH Case No. 93-3908EC
Respondent. ) Complaint No. 91-146
) Final Order No. COE 94-31
FINAL ORDER AND PUBLIC REPORT
This matter came before the Commission on Ethics on the Recommended Order rendered in this matter on May 23, 1994 by the Division of Administrative Hearings (DOAH) [a copy of which is attached and incorporated by reference]. The Hearing Officer, recommends that the Commission enter a final order and public report finding that the Respondent violated Section 112.313(4), Florida Statutes, by accepting a free membership in the Coral Gables Country Club, and finding that the Respondent violated Section 112.3148, Florida Statutes (1989), by failing to disclose the same on his financial disclosure statements for the years 1989 and 1990. In addition, the Hearing Officer recommends a total penalty of $1,502.
The Respondent filed exceptions to the Recommended Order and the Advocate filed a response to the Respondent's exceptions.
The Respondent takes exception to various portions of the Recommended Order. Each of the exceptions will be dealt with individually below.
Under Section 12O.57(1)(b)10, Florida Statutes, an agency may reject or modify the conclusions of law and interpretations of administrative rules contained in the recommended order. However, the agency may not reject or modify findings of fact made by the Hearing Officer unless a review of the entire record demonstrates that the findings were not based on competent, substantial evidence or that the proceedings on which the findings were based did not comply with the essential requirements of law. See, e.g., Freeze v. Dept. of Business Regulation, 556 So.2d 1204 (Fla. 5th DCA 1990); and Florida Department of Corrections v. Bradley, 510 So.2d 1122 (Fla. 1st DCA 1987). Competent, substantial evidence has been defined by the Florida Supreme Court as such evidence as is "sufficiently relevant and material that a reasonable mind would accept it as adequate to support the conclusions reached." DeGroot v. Sheffield, 95 So.2d 912, 916 (Fla. 1957).
The agency may not reweigh the evidence, resolve conflicts therein, or judge the credibility of witnesses, because those are matters within the sole province of the hearing officer. Heifetz v. Dept. of Business Regulation, 475 So.2d 1277, 1281 (Fla. 1st DCA 1985). Consequently, if the record of the DOAH proceedings discloses any competent, substantial evidence to support a finding of fact made by the Hearing Officer, the Commission is bound by that finding.
Having reviewed the Recommended Order, the Respondent's exceptions, the Advocate's response to the Respondent's exceptions, and the record of the public hearing of this matter that has been placed before the Commission, and having considered the arguments of the Respondent and the Advocate made before the Commission at its final consideration of this matter, the Commission makes the following findings, conclusions, rulings, and recommendations:
Rulings on Respondent's Exceptions
1. The Respondent takes exception to the Hearing Officer's treatment of his proposed finding of fact 5, apparently arguing that such a finding should have been made on the basis of unrebutted testimony and that such a finding would have shown that the Respondent received nothing of value by virtue of his complimentary Country Club membership because he already received the privileges of membership from the City itself because he was a City official entitled, under the City's lease agreement regarding the Country Club, to enter the Club and dine at its restaurant. The Respondent's proposed finding 5 reads: "The lease provided for City officials to inspect the Country Club premises. In the opinion of at least one Country Club director, this right allowed City officials, including commissioners, to enter the Country Club and, if they desired, buy a meal at the restaurant. "In the appendix to the Recommended Order, the Hearing Officer rejected this proposed finding as "subordinate to the facts actually found."
Under Section 120.57(1)(b)10, Florida Statutes, it was within the province of the Hearing Officer to reject or accept the testimony underlying a proposed finding of fact. Further, the Hearing Officer was free to weigh various and conflicting evidence presented in the matter and was free to draw from that evidence her factual view of the controversy, and the Hearing Officer's factual findings cannot be disturbed by our review unless they are not based upon competent, substantial evidence. The Hearing Officer cannot be faulted for believing that the membership bestowed value upon the members and for rejecting the proposed finding (and in effect the testimony upon which the proposed finding was based) that the City's lease rights rendered the membership valueless to the Respondent. There is competent, substantial record evidence to support the Hearing Officer's determination that the membership privileges bestowed upon the Respondent by a private entity were a thing of value to the Respondent.
Therefore, this exception is rejected.
2. The Respondent takes exception to the Hearing Officer's treatment of his proposed finding of fact 6, arguing that the proposed finding shows that the Respondent received nothing from the complimentary membership that the City did not already receive under the lease as the Country Club's landlord. The Hearing Officer rejected this proposed finding as "unnecessary." This proposed finding reads: "The lease also required that the Country Club allow the City access to the Country Club, and allow the City to use the Country Club upon reasonable notice."
Even had this proposed finding been accepted, it would not conclusively establish that City use of Club property, premises, or facilities amounted to the Respondent's right to use the same, free of charge, in the same manner in which he was entitled to use them as a complimentary member of the Club. Therefore, for this reason and for the reasons set forth above in response to the previous exception, this exception is rejected.
3. The Respondent takes exception to the Hearing Officer's treatment of his proposed finding 14 which reads: "Ed Brownell, a member of the Country Club for 27 years and a member of the board of directors for several years, testified at the hearing about the history of the Country Club's policy of granting complimentary memberships. His testimony was unrebutted. The policy began when City founder George Merrick founded the Country Club. From the beginning, honorary memberships were given to City officials, and later on to others as well. They were given to City leaders. The honorary memberships in the Country Club were given simply as a gesture of goodwill. The policy was not designed to influence anyone's official actions. "The Hearing Officer accepted the substance of the first and third sentences of this proposed finding, rejected the last sentence as constituting a conclusion of law, and rejected the remainder of the proposed finding as not being supported by the greater weight of the evidence. Assuming that the last sentence of proposed finding 14 is a proposed finding of fact rather than a proposed conclusion of law, its rejection is within the province of the Hearing Officer and there is competent, substantial evidence of record to support the Hearing Officer's contrary determination that the Country Club memberships were given in order to influence official action. As to the portion of proposed finding 14 which was rejected by the Hearing Officer via a weighing of the evidence, we are unable under Section 120.57(1)(b)10 to disturb her factual determination; any differences in the Hearing Officer's ostensibly contrary rulings in the Zahner and Barker complaints cannot change the standard of review under Section 120.57(1)(b)10. Further, even had the proposal that Ed Brownell testified in a certain way regarding the reason for the bestowal of the free Country Club memberships been accepted, its acceptance would not negate the other findings of the Hearing Officer supporting her determinationthat violations occurred.
Therefore, this exception is rejected.
4. The Respondent takes exception to the Hearing Officer's rejection of his proposed findings 16 and 17, arguing that characterizing a proposed factual finding as "unnecessary" is no reason to reject it if the evidence supports it and arguing that proposed findings 16 and 17 demonstrate that the Respondent received no value from his complimentary membership because, prior to his election as Commissioner, his private employer paid his dues and that therefore the employer and not the Respondent received a benefit from the complimentary membership.
Under Section 120.57(1)(b)10, the Hearing Officer is the judge of the evidence, the witnesses, and the facts. It is up to the Hearing Officer to weigh the evidence, draw any inferences from the evidence, and find the facts. Merely because the Respondent proposed inferences or facts exonerative of himself, in which the Hearing Officer as judge of the facts did not concur, does not mean that the factual findings contained in the Recommended Order are not supported by competent, substantial evidence. Further, even had proposed findings 16 and 17 been accepted by the Hearing Officer, the same do not conclusively show that the Respondent's employer would have paid his Club membership for the time he received it as a public official merely because the employer paid in 1982. However, this exception is accepted to the extent that the Commission on Ethics finds that the Respondent's employer paid his initiation and dues for one year in 1982.
Therefore, this exception is rejected in part and accepted in part.
5. The Respondent takes exception to what he refers to as the Hearing Officer's failure to include certain of his proposed findings in the Recommended Order. However, much, if not all, of the substance of these proposed findings is included in the body of the Recommended Order, although the phraseology may not be exactly the same as that proposed by the Respondent. Respondent's proposed finding 15 is included in paragraphs 20 and 33 of the Recommended Order; proposed finding 20 is included in paragraphs 32 and 33 of the Recommended Order; and proposed finding 22 is included in paragraphs 17 and 20 of the Recommended Order.
Therefore, these exceptions are rejected.
6. The Respondent takes exception to the Hearing Officer's use of the preponderance of the evidence standard in this matter rather than the clear and convincing evidence standard. The Commission on Ethics has held that the preponderance of the evidence standard applies. Moreover, this matter does not involve revocation of a professional license (the loss of someone's livelihood) and therefore is not the type of administrative case in which the more stringent standard has been applied. See, e.g., In re MICHAEL E. LANGTON, 14 F.A.L.R. 4175 (Fla. Comm. on Ethics 1992).
7. The Respondent takes exception to paragraph 43 of the Recommended Order, arguing that the Hearing Officer erroneously concluded that the Respondent received a "thing of value" from the Country Club because at the time the Respondent received the Country Club membership his private employer was paying his membership to the Country Club.
This exception is rejected. The Country Club membership entitled the Respondent, not his private employer, to certain privileges, and no determination was made by the Hearing Officer, nor evidence admitted, that the private employer would have paid the membership for the Respondent for the years he held it by virtue of his official status.
8. The Respondent takes exception to paragraph 44 of the Recommended Order, arguing that the Hearing Officer should not have concluded that the Country Club membership was given to influence the Respondent's official actions because "[t]he undisputed evidence showed that it has been a tradition since the founding of the Country Club to offer complimentary memberships to community leaders." In support of this argument, the Respondent cites In re JAMES RESNICK, 14 F.A.L.R. 1002 (Fla. Comm. on Ethics 1991). In addition, the Respondent argues that this determination was in error because "[w]hile [the leaders receiving free memberships] included City officials, several persons not City officials also received complimentary memberships," and "because of the landlord/tenant relationship between the City and the Country Club, a unity of interests existed between them such that complimentary memberships in the Country Club were not intended to influence official action."
Resnick is distinguishable on its facts from the instant matter. Moreover, a gratuitous practice having a history is not a defense to a charge involving Section 112.313(4), Florida Statutes. See In re WINSTON W. "BUD" GARDNER, 15 F.A.L.R. 2595, 2612 (Fla. Comm. on Ethics 1993). Further, the fact that the Club may have also been seeking to influence other community leaders who were not public officials does not mean that public official community leaders, including the Respondent, were not sought to be influenced. In addition, since it is obvious that the interests of a landlord and its tenant are not always the same, a tenant may very well seek to influence those with the power to make or influence decisions on behalf of the landlord, and the record in this matter shows that there were instances involving the City and the Country Club in which action or conduct by the City would have been of consequence to the Club.
Therefore, this exception is rejected.
9. The Respondent takes exception to paragraph 45 of the Recommended Order, arguing that the Hearing Officer erred in concluding that the Respondent should have known that the Country Club membership was given to influence his official action because since such memberships were traditional the Respondent merely assumed he was receiving a traditional honorary membership. In support of this argument the Respondent cites CEO 75-180 and CEO 89-40.
As stated in our rejection of the previous exception above, the fact that a gratuitous practice has a history or is "traditional" is not a defense to a charge under Section 112.313(4), Florida Statutes. See Gardner, supra. CEO 75-180 is distinguishable from the instant matter because in that opinion there was no relationship between the country club providing the membership and the State University System, of which the recipient was a public official. The lack of a relationship or lack of potentially competing interests is not present in the instant matter. In CEO 89-40, the social club offering the free or reduced fee membership and the club member nominating the public official (a county property appraiser) for membership were merely property owners within the county, as were many, many other persons and entities, there was not present the particular landlord/tenant relationship as in the instant matter wherein issues involving potentially competing interests were actually addressed and subject to influence. Further, the Respondent's harboring of a subjective question in his mind as to whether his acceptance of the Country Club membership was an ethical conflict is not determinative of the objective, constructive knowledge element of an offense under Section 112.313(4).
Therefore, this exception is rejected.
10. The Respondent takes exception to paragraphs 47 and 48 of the Recommended Order, arguing that the Hearing Officer erroneously concluded that the membership was not "honorary" and therefore that it had to be reported, arguing that the membership was part of a tradition bestowed on both private and public leaders, and arguing that CEO 89-40 finds that complimentary memberships do not have to be disclosed.
This exception is rejected. Such complimentary memberships do have to be disclosed and CEO 89-40 so held; such memberships have real and tangible benefits and thus are not "honorary." Mere history or tradition of a practice is not a defense to ethical charges. See Gardner, supra.
11. The Respondent takes exception to paragraph 49 of the Recommended Order, arguing that the Hearing Officer erroneously concluded that the Dade County Court's order involving the Respondent precludes a determination that the membership was not "honorary" requiring no disclosure. The ethics action on the lack of disclosure charges under Section 112.3148, Florida Statutes (1989), is not barred or controlled by the Dade County Court's ruling in the criminal prosecution. See Florida Bar v. Musleh, 453 So.2d 794 (Fla. 1984), Walley v. Fla. Game and Fresh Water Fish Com'n, 501 So.2d 671 (Fla. 1st DCA 1987), and Todd v. Carroll, 347 So.2d 618 (Fla. 4th DCA 1977).
Therefore, this exception is rejected.
12. The Respondent takes exception to the Hearing Officer's recommendation that the Commission find that the Respondent violated Section 112.313(4) in regard to the Coral Gables Country Club. Further, the Respondent argues that if a penalty is recommended by the Commission it should be reduced from that recommended by the Hearing Officer due to several mitigating factors.
The exceptions to the penalty recommendations of the Hearing Officer are accepted as specified below.
FINDINGS OF FACT
The Findings of Fact set forth in the Recommended Order are approved, adopted, and incorporated herein by reference, except as modified above.
CONCLUSIONS OF LAW
1. The Conclusions of Law set forth in the Recommended Order are approved, adopted, and incorporated herein by reference.
2. The Commission finds that the Respondent, James Barker, violated Section 112.313(4), Florida Statutes, by accepting a free membership to the Coral Gables Country Club, and that he violated Section 112.3148, Florida Statutes (1989), by failing to disclose the same on his financial disclosure filings for the years 1989 and 1990.
Therefore, the Commission on Ethics hereby recommends that a civil penalty of $200.00 (two hundred dollars) and restitution of $750.00 (seven hundred fifty dollars) be imposed upon the Respondent for the violation of Section 112.313(4), Florida Statutes, involving the Coral Gables Country Club and that a civil penalty of $1.00 (one dollar) be imposed upon the Respondent for each of the violations of Section 112.3148, Florida Statutes (1989), for a total of $952.00 (nine hundred fifty-two dollars). The civil penalty recommended by the Hearing Officer is mitigated because the Respondent sought and obtained legal advice from the City Attorney regarding the complimentary Country Club membership.
ORDERED by the State of Florida Commission on Ethics meeting in public session on Thursday, July 14, 1994.
July 20, 1994
N. David Flagg
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, 2822 REMINGTON GREEN CIRCLE, SUITE 101, TALLAHASSEE, FLORIDA 32308; OR P.O. DRAWER 15709, TALLAHASSEE, FLORIDA 32317-5709; 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.
cc: Mr. Raoul G. Cantero, III, Attorney for Respondent
Ms. Virlindia Doss, Commission Advocate
Mr. Joseph M. Centorino, Complaint
Division of Administrative Hearings