93-142 Final Order and Public Report, In re DAVID KNICKERBOCKER

The Respondent filed exceptions to the Recommended Order and the Advocate filed a response to the Respondent's exceptions.

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. 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 (via a letter distributed to the members of the Commission in lieu of live argument, at the request 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 paragraph 38 of the Hearing Officer's Recommended Order (denominated by the Hearing Officer as a conclusion of law), arguing, essentially, that there is no support in the record for a determination that the Respondent's use of nonpublic information gained by virtue of his official position was "corrupt."

The Respondent argues that he could not have been aware of the nonpublic or confidential nature of the information (information about the City's intended land purchases) that he received at the nonpublic meeting between himself, the City Manager, and a City Councilman, and, therefore, that under Blackburn v. State Commission on Ethics, 589 So. 2d 431 (Fla. 1st DCA 1991), he could not have acted with reasonable notice that his conduct was inconsistent with the proper performance of his public duties. In furtherance of this argument, the Respondent asserts that in the instant case there is no factual basis for the finding of "wrongful intent," that the facts specifically found by the Hearing Officer belie any such finding of wrongful intent, that the Hearing Officer's reference to the Respondent's fiduciary real estate duties is irrelevant, that no circumstantial evidence of knowledge of wrongful conduct or wrongful intent exists in the record or in the Recommended Order, and that the actions of the Respondent as found by the Hearing Officer are inconsistent with a finding of wrongful intent.

Blackburn is not analogous to the Respondent's situation because it concerns a county commissioner whose use of county personnel and resources to compile and write an article promoting a county garbage-collection ordinance was unquestionably for the commissioner's use in her proper public role as a county commissioner albeit it was also used for her private reelection purposes. There is no dual (public/private, legitimate/illegitimate) purpose present in the instant matter. Further, contrary to the instant matter involving the Respondent, the information underlying the article in Blackburn was not nonpublic information; in Blackburn, the hearing officer determined that 'the provision of such information would not have been a special benefit, and [appellant] would have been free to use it in her campaign, just as her opponent would have been free to use it in campaigning against her.' [Blackburn, 433.]

Contrastingly, in the instant matter there is no determination by the Hearing Officer that the Respondent's use of the nonpublic information served a legitimate purpose relative to his role as Mayor of the City. The only determination of the Respondent's use of the information concerns special, private purposes (see paragraph 37 of the Recommended Order): "Knickerbocker attempted to use resources within his trust, i.e. information that the [c]ity was interested in buying Tracts I and III, with the intent to secure a special benefit for his mother and brother," "[t]he special benefit being the purchase and resale of the two tracts of property for a quick profit," and "[the Respondent] knew that the City was interested in buying the two lots and that whoever owned the two lots had a potential buyer, the City." Further, unlike the situation in Blackburn where the alleged violation of Section 112.313(6) was not based upon the use of nonpublic information, the information in the instant matter was determined to be information not available to the general public. Recommended Order, paragraph 38.

In addition, the totality of the factual circumstances found by the Hearing Officer, including that the Respondent participated in a meeting (that was not a duly-noticed public meeting) at which nonpublic information about the City's potential land purchases was conveyed to the Respondent, supports the position that he knew the information was of a special character not to be used for private purposes.

Further, unlike the county commissioner in Blackburn, the Respondent was provided with notice that his use of such information would be "corrupt." The statutory language of Section 112.313(8) itself provides such notice. Also, the Commission on Ethics has rendered published decisions giving fair and reasonable warning that using nonpublic information gained by reason of one's official position would be unlawful or unethical. See, for example, CEO 87-55 (county industrial development authority member acting as realtor to sell property to boat manufacturer), CEO 88-32 (former director of Division of State Lands lobbying or negotiating for land acquisition projects), and CEO 90-40 (city/county zoning director engaging in real estate investments).

In addition, the Hearing Officer's determination concerning the Respondent's knowledge of the significance of confidential information in the context of a real estate broker's duty to a client, while it alone might not support a determination that he was on notice that he should not have used the nonpublic information concerning potential City land purchases, when taken together with the other facts as found by the Hearing Officer it does augment or support the determination that the Respondent was aware of the "inside" nature of the information.

Basically, the record reflects that the Respondent knew the nonpublic character of the information concerning potential City land purchases. Further, the language of Section 112.313(8) and published opinions of the Commission all served to place the Respondent on notice that the use of such information would be unethical or unlawful. The Respondent's situation is both factually and legally distinguishable from that in Blackburn.

Therefore, this exception is rejected.

2. The Respondent takes exception to paragraph 42 of the Recommended Order arguing that the Hearing Officer erred in concluding that the Respondent violated Section 112.313(8), Florida Statutes, because, according to the Respondent, assuming that nonpublic information was used by the Respondent, "no benefits or gain were realized." Essentially, the Respondent maintains that Section 112.313(8) requires that some person actually receive a benefit from the disclosure of the nonpublic information and thus that Section 112.313(8) does not encompass "attempts." Therefore, the Respondent argues, because his mother and brother did not close on the properties they contracted to buy, they received no actual gain and thus did not violate Section 112.313(8).

Such a construction of the statute, and thus this exception, must be rejected. As found by the Hearing Officer (Recommended Order, paragraph 42), the Respondent "used the information to benefit his mother and brother." A cardinal rule of statutory construction is that an interpretation of a statute that would produce unreasonable, absurd, or ridiculous consequences is to be avoided. Fla. Jur 2d, Statutes, Section 183. It would work an absurd result indeed, and thus not one intended by the Legislature, were a public official to be able to use inside information in bestowing upon his close relatives valid and valuable contractual rights regarding the purchase of desirable real estate at a desirable price without running afoul of Section 112.313(8) simply because, due to collateral factors (i.e., title problems or related matters), the closing on the contracts was not able to take place. Further, such contracts, regardless of whether or not they close, are themselves things of value embodying gain or benefit to the buyers (the Respondent's relatives).

3. The Respondent takes exception to the Hearing Officer's recommended penalty [public censure and reprimand, a $2,000 civil penalty for the violation of Section 112.313(6), and a $2,000 civil penalty for the violation of Section 112.313(8)] arguing that the statutory violations found by the Hearing Officer warrant no more than a public censure and reprimand and arguing that if a civil penalty is imposed it should be imposed on only one statutory violation because both violations arose out of but one incident. In support of his argument that a civil penalty should be imposed only as to one violation, the Respondent cites In re: John S. Mooshie, 15 FALR 382 (Commission on Ethics 1992).

The Commission was under no obligation to recommend a civil penalty as to but one of the two violations that arose out of the same incident in Mooshie, and it is under no obligation to do so in the instant matter. Further, the penalty recommended by the Hearing Officer is appropriate under the circumstances of this matter.

Therefore this exception is rejected.

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.

2. The Commission finds that the Respondent, David Knickerbocker, as Mayor of the City of Oviedo, violated Section 112.313(6), Florida Statutes, by corruptly attempting to use resources within his trust (information not available to members of the general public and gained by reason of his official position, concerning potential land purchases by the City) to secure a special privilege, benefit, or exemption for his mother and brother.

3. The Commission finds that the Respondent violated Section 112.313(8), Florida Statutes, by using information not available to members of the general public and gained by reason of his official position (information concerning potential land purchases by the City) for the personal gain or benefit of his mother and brother.

RECOMMENDED PENALTY

Pursuant to Sections 112.317 and 112.324, Florida Statutes, the Commission on Ethics hereby recommends that a civil penalty of $2,000 (two thousand dollars) be imposed upon the Respondent for the violation of Section 112.313(8), Florida Statutes, that a civil penalty of $2,000 (two thousand dollars) be imposed upon the Respondent for the violation of Section 112.313(6), Florida Statutes, for a total civil penalty of $4,000 (four thousand dollars), and that he be publicly censured and reprimanded for the violation of Section 112.313(8), Florida Statutes, and for the violation of Section 112.313(6), Florida Statutes.

ORDERED by the State of Florida Commission on Ethics meeting in public session on Thursday, January 26, 1995.

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Date Rendered

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R. Terry Rigsby

Chairman

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. Michael L. Gore, Attorney for Respondent

Mr. Marty E. Moore, Commission Advocate

Mr. Phillip E. Hampton, Complainant

Division of Administrative Hearings