STATE OF FLORIDA
COMMISSION ON ETHICS
In re ELI TOURGEMAN,
DOAH NO: 93-5183EC
Respondent. Complaint No. 91-73
Final Order No. COE 94-28
FINAL ORDER AND PUBLIC REPORT
This matter came before the Commission on Ethics on the Recommended Order rendered in this matter on April 29, 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 dismissing the complaint filed against the Respondent in this matter.
Both the Advocate for the Commission and the Respondent filed exceptions to the Recommended Order, the Advocate filed a response to the Respondent's exceptions, and the Respondent did not file a response to the Advocate's exceptions.
The Advocate takes exception to paragraph 30 of the Recommended Order, arguing that the Hearing Officer erred as a matter of law in concluding that the lack of independent ability on the part of a public official to terminate or discipline the public employment or status of a public employee precludes the finding of coercion in the superior-subordinate relationship. Further, the Advocate's exceptions go on to request that the Commission modify the conclusion of law contained in paragraph 30 to recognize that there can be an implicit understanding on an employee's part that failure to find favor with a superior for any reason might constitute a threat to his employment--that coercion or misuse of one's public position under Section 112.313(6), Florida Statutes, can occur regardless of whether or not a public official has the actual" power to fire, discipline, or sanction a particular employee. However, the Advocate's exceptions also assert that in this particular matter the totality of the circumstances, including the fact that the Respondent, when he did make a threat, made one related to the withholding of the Kiwanis money rather than one directed toward the employee's employment and the fact that the employee herself perceived no danger to her employment, preclude a finding that the Respondent attempted to make use of the influence he had, as a public official, over the employee.
The Respondent takes exception to paragraph 31 of the Recommended Order, arguing that the Hearing Officer's legal conclusions that the Respondent "did corruptly use his position as a member of the Kiwanis Club" and that the same "may not be morally right" are gratuitous comments not relevant to any issues before the Hearing Officer. The Advocate responds to the exception by arguing that the language contained in paragraph 31 is necessary to explain the Hearing Officer's decision, which ultimately was entered in favor of the Respondent.
Under Section 120.57(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. Debt. of Business Regulation, 556 So.2d 1204 (Fla. 5th DCA 1990); and Florida Deoartment 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 Reculation, 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 Advocate's exceptions, 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 Advocate's Exceptions
Under our precedent [see, e.g.", In re LANCASTER, 5 F.A.L.R., 1565-A (Fla. Comm. on Ethics 1983)], we have found that implicit coercion can be present regardless of whether a respondent is vested with the power to hire, discipline, or otherwise affect a public employee's employment. We believe that to be a correct interpretation of Section 112.313(6) and see no reason to deviate from that reasoning. Therefore, the conclusion of law found in paragraph 30 of the Recommended Order is modified to be consistent with our reasoning expressed above. However, under the particular facts of this matter, we determine that the Respondent, for the reasons set forth in the Advocate's exceptions and in the Hearing Officer's Recommended Order as modified herein, did not violate Section 112.313(6), Florida Statutes. Accordingly, the Advocate's exception is granted.
Rulings on Respondent's Exceptions
Whether the Respondent's actions were taken as a member of the Kiwanis club rather than as a public official is relevant to the issue of whether the Respondent misused his public position in violation of Section 112.313(6). However, the term "corruptly," by definition, is applicable only to the actions of a public servant in connection with his public duties and Section 112.313(6) does not address private capacity conduct, such as that of a member of a service club. Therefore, while it thus was proper in the course of trying the charges in this matter and considering any applicable defenses thereto for the Hearing Officer to determine that the Respondent's actions were not taken in his capacity as a public official but rather were taken in his capacity as a member of the Kiwanis Club, the legal term "corruptly" is not available to be ascribed to the Respondent's private conduct. Similarly, whether the Respondent's actions were "morally right" is not a matter addressed by the Code of Ethics or at issue in this matter. Thus, the Respondent's exception is granted and paragraph 31 of the Recommended Order is hereby amended to read:
31. Tourgeman did not as a public official
attempt to gain special benefits for his
nephews, i.e., summer camp scholarships.
Therefore, there was not a violation of Section
112.313(6), Florida Statutes.
FINDINGS OF FACT
The Findings of Fact set forth in the Recommended Order are approved, adopted, and incorporated herein by reference.
CONCLUSIONS OF LAW
1. The Conclusions of Law set forth in the Recommended Order are approved, adopted, and incorporated herein by reference except as modified above.
2. The Commission finds that the Respondent, Eli Tourgeman, did not violate Section 112.313(6), Florida Statutes, as alleged in the complaint filed in this matter.
Accordingly, this Complaint is hereby dismissed.
ORDERED by the State of Florida Commission on Ethics meeting in public session on Thursday, July 14, 1994.
July 20, 1994
R. Terry Rigsby
THIS ORDER CONSTITUTES FINAL AGENCY ACTION. ANY PARTY WHO IS ADVERSELY AFFECTED BY THIS ORDER HAS THE RIGHT TO SEEK JUDICIAL REVIEW UNDER SECTION 120.68f 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. Richard Waserstein, Attorney for Respondent
Mr. Stuart F. Wilson-Patton, Commission Advocate
Mr. Alan Rubin, Complainant
Division of Administrative Hearings