STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
IN RE: GEORGE HAMEETMAN, )
)
Respondent. ) Case No:
98-4642EC
_________________________________)
RECOMMENDED ORDER
Pursuant to notice, the Division of Administrative Hearings, by its duly-designated
Administrative Law Judge, Carolyn S. Holifield, held a formal hearing on August
20, 1999, by video teleconference between Tallahassee and Miami, Florida.
APPEARANCES
For Respondent: Charles Toledo, Esquire
8201 Peters Road, Suite 400
Fort Lauderdale, Florida 33324
STATEMENT OF THE ISSUES
The issues for determination are: (1) whether Respondent violated Section 112.313(6), Florida Statutes, by manipulating fiscal practices of the City of Hialeah Gardens in an effort to afford himself a tax benefit; (2) whether the Respondent violated Section 112.313(6), Florida Statutes, by removing from the Mayor's Office furniture that had been donated to the City of Hialeah Gardens; (3) whether the Respondent violated Section 112.313(7), Florida Statutes, by having a contractual or employment relationship with a company doing business with the City of Hialeah Gardens; and (4) if so, what penalty is appropriate.
PRELIMINARY STATEMENT
On March 10, 1998, the Florida Commission on Ethics (Commission on Ethics) entered an Order Finding Probable Cause to believe that Respondent, George Hameetman, while serving as Mayor of the City of Hialeah Gardens (1) violated Section 112.313(6), Florida Statutes, by manipulating city fiscal practices in an effort to afford himself a tax benefit; (2) violated Section 112.313(6), Florida Statutes, by removing City furniture that had been donated to the City of Hialeah Gardens from the Mayor's Office prior to vacating the premises at the end of his term in office; and (3) violated Section 112.313(7), Florida Statutes, by having a contractual or employment relationship with a company that was doing business with the City of Hialeah Gardens, Florida. Respondent challenged the allegations and requested a formal hearing. On October 15, 1998, the case was forwarded to the Division of Administrative Hearings for assignment of an administrative law judge to conduct the proceeding.
At hearing, the Advocate called five witnesses: Gilda Cabrera Oliveros, Lourdes Diez, Phillip Sheffield, August Torres, and James Warmus. The Advocate offered 26 exhibits, all of which were accepted into evidence. Respondent testified on his own behalf and called one witness, Charles Gomes, and offered no exhibits.
A Transcript of the proceeding was filed on September 15, 1998. At the conclusion of the hearing, the time set for filing proposed recommended orders was 10 days after the transcript was filed. Prior to that time, at the request of Respondent and without objection, the time for filing proposed recommended orders was extended. Both parties timely filed proposed recommended orders under the extended time frame.
FINDINGS OF FACT
1. George Hameeton (Respondent) was elected Mayor of the City of Hialeah Gardens (City or Hialeah Gardens) in March 1993 and served through March 9, 1995.
2. As Mayor of Hialeah Gardens, Respondent was subject to the requirements of Part III, Chapter 112, Florida Statutes, the Code of Ethics for Public Officers and Employees (Code of Ethics).
3. Gilda Oliveros, formerly known as Gilda Cabrera de Corzo, was Respondent's immediate predecessor as Mayor. Oliveros served as mayor of Hialeah Gardens from 1989 until 1993, when she was defeated by Respondent.
4. In 1995, Oliveros ran against Respondent again and was elected Mayor on March 7, 1995. Oliveros was sworn into office on March 9, 1995.
5. The City Charter of the City of Hialeah Gardens, Florida, provides for a strong mayor form of government. According to the City Charter, "The Mayor is the executive head of the city, with all the necessary powers and authority to enforce all laws, ordinances, and resolutions of the City Council." Consistent with his role as "executive head," the mayor supervises, hires and fires, and has total supervisory powers over all departments. In addition, the Mayor has a fiduciary duty to the City.
6. Respondent's salary in 1994 and 1995 was $20,000 per year. In Hialeah Gardens, salary increases for the mayor must be voted on in a referendum.
7. On November 1, 1994, the Hialeah Gardens City Council (City Council) took up the matter of an expense allowance for Respondent. Respondent was in attendance, but neither August Torres, the City's accountant; Lourdes Diez, the City's bookkeeper; nor James Warmus, the City's auditor, were in attendance.
8. During City Council's discussion, the Acting City Attorney stated that the expense allowance would be a discretionary, nonreporting expense account. With this type of expense account, the amount paid would be static, no matter what expenses were incurred. Moreover, with this type of account, no receipts or other proof of expenses would have to be submitted.
9. On November 1, 1994, the City Council adopted Resolution No. 1453 which authorized Respondent to receive a monthly expense allowance of $1,000 and a monthly automobile allowance of $800.00 retroactive to the date of his taking office in March 1993. No supporting documentation was required to substantiate these expense allowances.
10. Resolution No. 1453 also provided that the City Council members and Respondent had the option to either participate in the City's health plan or to receive a sum equivalent to the City's contribution to the health plan on their behalf.
11. Resolution No. 1453 provided that the $1,000 expense reimbursement was a nonreporting reimbursement. However, the resolution did not indicate how the automobile allowance should be categorized.
12. Resolution No. 1453 provided in relevant part the following:
Section 1. The Mayor shall receive the sum of one thousand dollars a month as reimbursement for expenses such as late meals, dry cleaning, cellular telephone, and other related expenses resulting from his fulltime employment with the City in an administrative position. Said reimbursement shall be nonreporting.
Section 2. The Mayor shall receive the sum of eight hundred dollars a month for an automobile allowance which includes reimbursement for insurance, maintenance, and gasoline.
13. The expense allowances authorized by Resolution No. 1453 totaled $1,800 per month, an amount which exceeded the Respondent's salary by $1,600 per year.
14. "Nonreporting" or "nonaccountable" expense reimbursements as described above are treated as wages by the Internal Revenue Service. As such, the employer is responsible for withholding social security and Medicare taxes, and also for making a matching contribution. Failure of an employer to do so can result in the employer's having to pay a penalty of up to 100 percent of the amount which should have been withheld.
15. After Resolution No. 1453 was adopted, Respondent told Diez to calculate the amount he and City Council members should receive pursuant to the terms of the Resolution No. 1453.
16. Diez was not aware the insurance contributions and expense reimbursements were subject to taxation; neither was she familiar with the distinction between accountable or reporting expense and nonaccountable or nonreporting expenses. Therefore, she calculated the gross amount to which Respondent and City Council members were entitled. She did not withhold taxes or social security or make the employer's contribution as to any of the payments including those made to the City Council members.
17. Respondent was Diez' immediate supervisor and usually checked her work. Consistent with this practice, Respondent, too, calculated the amounts owed to him and the City Council members and double-checked Diez' figures.
18. Once the calculations were completed, Respondent instructed Diez to cut his expense reimbursement check and the health plan contribution checks for him and eligible City council members. In response to Diez' inquiry about where the money should come from, Respondent told her that the payments should come out of the City's general fund.
19. Diez then called Torres to request the appropriate account number for the "expense" reimbursement. Because Diez did not mention that the expense reimbursement or any part thereof was nonreporting, Torres gave Diez the account number that allowed the funds to be paid as an operating expense. At the time Diez contacted Torres to get the account number, Torres had not seen a copy of Resolution No. 1453 and was unaware of its contents.
20. The nonaccountable expense reimbursement check should have been issued from the City's payroll account. The payroll account or fund is set up with CompuPay, an outside third-party administrator, which is the City's payroll servicing company. Checks cut from the City's payroll fund or account, unlike those cut from the City's general operating fund, have payroll taxes and the employee's contribution automatically calculated and withheld by CompuPay. On the other hand, payments coming from the City's general fund are not normally subject to withholding. While it is possible to manually do the calculations on payments made from the City's general fund, because Diez was not aware the money was subject to taxes, it never occurred to her to do so.
21. The transaction involving Respondent's expense reimbursement was a non-routine transaction and one that Diez had not previously seen or processed.
22. On December 23, 1994, Respondent was issued a check for $43,685.93, which represented the total retroactive payment for the car allowance, the expense allowance, and the health plan contribution. No social security or Medicare taxes were withheld from this check and no employer's contribution was made.
23. Respondent deposited the $43,685.93 check into his bank account on December 23, 1994, the day it was issued.
24. Respondent's personal bank account was at the same bank as the City's account and the $43,685.93 was posted to Respondent's account the day the check was deposited.
25. Shortly after the $43,685.93 check was issued to Respondent, Torres became aware that the check was for a nonaccountable or nonreporting expense reimbursement and that no social security or Medicare taxes had been withheld.
26. While it is unclear who initiated the call, within one week after Respondent's $43,685.93 check was deposited into his bank account, Respondent and Torres had a telephone conversation regarding the check. Torres explained to Respondent that the expense reimbursement check "was of a nonreporting nature" and, therefore, payroll taxes had to be withheld. Respondent then told Torres that the check had already been deposited into Respondent's bank account.
27. During the aforementioned telephone conversation, Respondent expressed concern about the tax consequences of receiving such a large sum at the end of 1994. Because Respondent believed the lump sum payment of $43,685.93 would adversely affect his income tax obligation for 1994, he asked Torres if he could defer taking the check until 1995.
28. In response to Respondent's inquiry concerning whether he could defer taking the check until 1995, Torres told Respondent that taxes must be paid for the year in which the money is received. Nevertheless, Torres advised Respondent that if he redeposited funds to correct an error and if the reissued check did not get to him until 1995, he arguably would not have "received" the money until 1995.
29. Based on his familiarity with the City's payroll processing schedule, Torres knew that the subject expense reimbursement check would not be reissued until 1995.
30. Respondent and Torres never discussed whether it was permissible to make a deferred compensation contribution from the expense reimbursement funds.
31. On December 30, 1994, Respondent contacted the bank and had the December 23, 1994, deposit of the $43,685.93 reversed. As a result of this action, the funds were deducted from Respondent's account and redeposited in the City's account.
32. Respondent notified Diez that the $43,685.93 had been returned to the City's account and asked that a new expense reimbursement check be issued, minus a $9,624.00 contribution to Respondent's deferred compensation plan. However, Respondent did not tell Diez to withhold any social security or Medicare taxes or to make any employer's contributions.
33. Diez took the funds from the City's general fund as she had done for the check issued December 23, 1994. It did not occur to Diez to withhold taxes from Respondent's reissued expense reimbursement check and she did not.
34. When Respondent directed Diez to cut and reissue the expense reimbursement check, he knew that social security and Medicare taxes were to be withheld from the check. Nevertheless, he deliberately did not tell Diez to withhold these taxes. During the aforementioned telephone conversation, Torres explained to Respondent that the only way the expense reimbursement could be attributable to Respondent as income to Respondent in 1995 instead of 1994 was if the December 23, 1994, deposit were reversed to correct a "mistake" and the check was then reissued in 1995.
35. The "mistake" to which Torres referred was the error in not withholding payroll taxes from the $43,685.93 reimbursement check. As a result of Torres' explanation, Respondent clearly understood that social security and Medicare taxes should have been withheld from the check. Moreover, Respondent understood that reversal of the December 23, 1994, deposit could be done only to correct the mistake involving withholding of social security and Medicare taxes.
36. A new check was issued to Respondent on January 10, 1995. The original $43.685.93 had been reduced by $9,624.00, the deferred compensation contribution, and the check issued to Respondent was for $34,061.93. No social security or Medicare taxes were withheld and no employer's contribution was made.
37. When Mayor Oliveros was elected and took office in March 1995, she asked the City auditor to conduct a complete audit. Ultimately, the auditor instead conducted an "agreed-upon procedure" which addressed Mayor's Oliveros' concerns without the scope and expense of a complete audit. The procedure covered the period October 1, 1994, to March 9, 1995, and the auditor's findings were summarized in a report dated May 1995.
38. The agreed-upon procedure identified the handling of Respondent's reimbursement check as problematic. Specifically, the auditor discovered that no social security, or Medicare, or other taxes had been withheld from either of Respondent's expense reimbursement checks. Furthermore, the auditor found that the employer's contribution was never made by the City with regard to Respondent's expense reimbursement.
39. In an effort to protect the City from exposure to IRS penalties, Torres suggested that the City pay Respondent's share of the taxes, as well as its own employer's contribution.
40. To calculate the amount of taxes due and for purposes of calculating Respondent's salary for his 1995 W-2, Torres engaged in a calculation known as "grossing up." "Grossing up" is used when an employee mistakenly or otherwise improperly receives as net an amount he should have received as gross. Respondent should have received $43,685.93 gross, had taxes withheld, and then taken home some lesser "net" amount. Instead he took home $43,685.93. To "gross up," one would have to calculate what gross income would have resulted in a net income of $43,685.93.
41. Respondent's "grossed up" income was $47,304.74.
42. The City paid the Respondent's share and employer's matching contribution. In fact, due to an error in calculating the amounts, it overpaid taxes that should have been deducted from Respondent's check. Based on Respondent's "grossed up" income, the correct amount of social security and Medicare taxes was $3,618.81.
43. As of the date of the hearing, Respondent had not reimbursed the City for his share of the social security and Medicare taxes.
44. In April 1994, during Respondent's term as Mayor, a sofa and loveseat were donated to the City. Respondent accepted the donated sofa and loveseat to replace the old stain-covered furniture in the Mayor's office.
45. Respondent directed City workers to move the old furniture from the Mayor's office to the City's storage warehouse.
46. Between March 7, 1995, the day Mayor Oliveros was elected, and March 9, 1995, the day she took the oath of office, Respondent had City employees remove the donated sofa and loveseat from the Mayor's Office and take it to the City's storage warehouse. Respondent then had the City workers to retrieve the old furniture from the City's storage warehouse and put it in the Mayor's office.
47. Respondent returned the old furniture to the Mayor's office in retaliation against Mayor Oliveros. Respondent admitted that his action was "childish" and was done because he wanted to "gig" Mayor Oliveros, that is to get back at her, for leaving the old stain-covered furniture in the Mayor's office when he defeated her in 1993.
48. Respondent never took personal possession of the "donated" furniture.
49. Since taking office, Mayor Oliveros has been unsuccessful in her efforts to locate the "donated" furniture. Mayor's Relationship With Company Doing Business work for City
50. In August 1992, Hurricane Andrew struck South Florida. As a result of this hurricane, Hialeah Gardens sustained some damage. However, the damage was not extensive and consisted primarily of fallen trees and debris from damage to some smaller structures.
51. Oliveros was Mayor of Hialeah Gardens during Hurricane Andrew. During the period after Hurricane Andrew, at Mayor Oliveros' direction, City maintenance personnel removed debris that may have created a dangerous situation caused by the storm.
52. Immediately after Hurricane Andrew, Mayor Oliveros had fallen debris removed from various sites in Hialeah Gardens. Among the sites where debris had fallen was Bernie Wilson Park. A gazebo in the park had been damaged by the hurricane and debris from that structure was picked up by a City maintenance crew. After the storm, a portion of the gazebo including its roof remained standing. However, the remaining portion of the gazebo was not structurally sound.
53. Mayor Oliveros applied for funds from the Federal Emergency Management Agency (FEMA) before leaving office. FEMA funds were requested to cover overtime payments for the trash removal and a significant amount of the funds were specifically earmarked for removal of debris.
54. Mayor Oliveros' understanding of the expenditures of FEMA funds was that bids were not necessary in emergency cleanup situations. According to Mayor Oliveros, because of the emergency situation, the County authorized the City to use contractors who had been approved by the County. However, once the debris was cleaned up and the emergency situation no longer existed, any further services were to be purchased in accordance with the City's purchasing procedures.
55. A few weeks after Respondent was elected, he received complaints that Bernie Wilson Park was in disrepair. In response to these complaints, Respondent went out to the park to inspect the damage. Based on his assessment, in March 1993, Respondent had a fence built around the park and had the gate padlocked. Respondent also had signs posted indicating that the park was closed.
56. In September 1993, Respondent hired Perfect Building, Inc., to repair the gazebo in Bernie Wilson Park that had been damaged as a result of Hurricane Andrew. Respondent took this action more than one year after Hurricane Andrew struck South Florida and approximately six months after he first inspected and assessed the damage at Bernie Wilson Park. The City paid Perfect Builders $13,000 for this work.
57. Respondent's justification for using Perfect Builders was that repair or reconstruction of the gazebo was necessary because the damaged gazebo constituted an emergency situation. According to Respondent the cost of the project could be covered by FEMA only if the project were completed by a certain date. In an effort to meet this deadline, Respondent used Perfect Builders only after other contractors he telephoned indicated they were too busy to work on the project.
58. The gazebo at Bernie Wilson Park did not constitute an emergency situation that would preclude Respondent's adhering to the City's prescribed purchasing procedures.
59. In December 1993, Respondent again hired Perfect Builders to renovate the dispatch office in the Police Department at a cost of $1,900. Because the cost of this project did not exceed $4,000.00, Respondent was not required to follow bid requirements specified in the City's purchasing procedures.
60. At the times Respondent hired Perfect Builders to perform work for the City, he had a contractual relationship with the company to serve as its qualifier. As qualifier for Perfect Builders, Respondent contractor's license was used to pull permits for the firm. For serving as its qualifier, Respondent was paid a monthly fee of $350 by Perfect Builders.
61. Respondent had a contractual relationship with Perfect Builders which violated Section 112.313(7), Florida Statutes.
CONCLUSIONS OF LAW
62. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding. Section 120.57(1), Florida Statutes.
63. Section 112.322, Florida Statutes, and Rule 34.5.0015, Florida Administrative Code, authorize the Commission on Ethics to conduct investigations and to make public reports on complaints concerning violations of Part III, Chapter 112, Florida Statutes, the Code of Ethics.
64. The burden of proof, absent a statutory directive to the contrary, is on the party asserting the affirmative of the issue in the proceedings. Department of Transportation vs. J.W.C. Company, Inc., 396 So. 2d 778 (Fla. 1st DCA 1981); Balino vs. Department of Health and Rehabilitative Services, 348 So. 2d 349 (Fla. 1st DCA 1977). In this proceeding, the Commission, through its Advocate, is asserting the affirmative, that Respondent violated Section 112.313(6), Florida Statutes. Therefore, the Advocate has the burden of establishing by clear and convincing evidence the elements of Respondent's alleged violations. Latham vs. Florida Commission on Ethics, 694 So. 2d 83 (Fla. 1st DCA 1997) citing Department of Banking and Finance vs. Osborne Stern, 670 So. 2d 932 (Fla. 1996), and Ferris vs. Turlington, 510 So. 2d 292 (Fla. 1987).
65. Clear and convincing evidence requires that the evidence must be found to be credible, facts to which witnesses testify must be distinctly remembered, testimony must be precise and explicit, and witnesses must be lacking in confusion as to facts in issue; evidence must be of such weight that it produces in the mind of the trier of fact a firm belief or conviction without hesitancy, as to the truth of the allegations sought to be established. Slomowitz vs. Walker, 429 So. 2d (Fla. 4th DCA 1983).
66. It has been alleged that Respondent violated Section 112.313(6), Florida Statutes, by using his position: (1) by manipulating City financial practices in an effort to afford himself a tax benefit from payments from the City of Hialeah Gardens; and (2) by removing City property from the Mayor's office prior to vacating the premises and at the end of his term in office.
67. That section provides the following:
MISUSE OF PUBLIC POSITION. No public officer, employee of an agency, or local government attorney shall corruptly use or attempt to use his or her official position or any property or resource which may be within his or her trust, or perform his or her official duties, to secure a special privilege, benefit, or exemption for himself, herself, or others. This section shall not be construed to conflict which section 104.31.
68. The term "corruptly" is defined by Section 112.312(9), Florida Statutes, as follows:
"Corruptly" means done with a wrongful intent and for the purpose of obtaining, or compensating or receiving compensation for, any benefit resulting from some act or omission of a public servant which is inconsistent with proper performance of his or her public duties.
69. In order to be concluded that Respondent violated Section 112.313(6), Florida Statutes, Advocate must establish the following elements:
1. The Respondent must have been a public officer or employee of an agency.
2. The Respondent must have used or attempted to use his official position or any other property or resources within his trust or perform his official duties to secure a special privilege, benefit or exemption for himself.
3. The Respondent must have acted corruptly, that is, with wrongful intent and for the purpose of benefiting himself or another person from some act or omission which is inconsistent with the proper performance of public duties.
70. Respondent has stipulated that he was a public officer and, as such, subject to the requirements of Part III, Chapter 112, Florida Statutes, the Code of Ethics. Therefore, the first element is established as to the allegations regarding violations of Section 112.313(6), Florida Statutes.
71. The allegation that Respondent violated Section 112.313(6), Florida Statutes, by removing City property from the Mayor's office prior to vacating the premises at the end of his term has not been proven.
72. The undisputed evidence established that after Respondent's unsuccessful re-election bid for Mayor and shortly before Oliveros assumed office, Respondent directed City maintenance workers to: (1) remove the "donated" furniture from the Mayor's office; (2) replace the "donated" furniture with the old stain-covered furniture that had previously occupied the office; and (3) take the "donated" furniture to the City's storage warehouse.
73. The facts adduced at hearing failed to establish that, by having furniture removed and replaced, Respondent somehow used his position as Mayor or property or resources within his trust to secure a special privilege or benefit for himself. There was no evidence that Respondent ever took personal possession of the "donated" furniture.
74. In view of the conclusion reached in paragraph 73, there is no basis for addressing the element related to wrongful intent required to prove a violation of Section 112.313(6), Florida Statutes.
75. Next it is alleged that Respondent violated Section 112.313(6), Florida Statutes, by manipulating City fiscal practices in an effort to afford himself a tax benefit.
76. As noted in paragraph 69, the parties have stipulated that Respondent is subject to the requirements of Part III, Chapter 112, Florida Statutes.
77. It must next be established that Respondent used his official position or property or resources within his trust to secure a special privilege or benefit for himself. This element has been proven.
78. The clear and convincing evidence established that Respondent used his official position to reverse a bank transaction that resulted in his expense reimbursement payment being attributable to him as income for the 1995 tax year, rather than the 1994 tax year.
79. The fact that Respondent used his official position to secure for himself a special benefit, however, is not necessarily a violation of the Code of Ethics. To prove a violation of Section 112.313(6), Florida Statutes, it must be established that Respondent acted with wrongful intent.
80. In Blackburn vs. Commission on Ethics, 589 So. 2d 431, 434 (Fla. 1st DCA 1999), the court stated:
An essential element of the charged offense under Section 112.313(6) is the statutory requirement that appellant acted with wrongful intent, that is, that she acted with reasonable notice that her conduct was inconsistent with the proper performance of her public duties and would be the violation of the law or the code of ethics in part III of chapter 112.
81. The clear and convincing evidence established that Respondent acted corruptly. Respondent's action with regard to reversal of the bank transaction was taken after the City's accountant advised that the reversal could be done to correct the mistake of not withholding social security and Medicare taxes from the first expense reimbursement check issued to Respondent. However, the clear and convincing evidence established that, Respondent's reversal of the deposit was not to correct a mistake but rather to maximize the advantage to be gained by orchestrating the timing of his expense reimbursement check.
82. The clear and convincing evidence established that although Torres specifically told Respondent that Medicare and social security taxes should be withheld from the reissued expense reimbursement, Respondent disregarded Torres' instructions and intentionally tried to manipulate City check issuance procedures in an attempt to benefit himself at the cost of exposing the City to tax penalties.
83. In view of the foregoing, it has been established by clear and convincing evidence that Respondent acted corruptly for the purpose of benefiting himself. Thus, it has been established that Respondent violated Section 112.313(6), Florida Statutes.
84. The third allegation is that Respondent had a contractual relationship with an entity, Perfect Builders, in violation of Section 112.313(7)(a), Florida Statutes. That section provides the following:
CONFLICTING EMPLOYMENT OR CONTRACTUAL RELATIONSHIP.
(a) No public officer or employee of an agency shall have or hold any employment or contractual relationship with any business entity or any agency which is subject to the regulation of, or is doing business with, an agency of which he is an officer or employee, excluding those organizations and their officers who, when acting in their official capacity, enter into or negotiate a collective bargaining contract with the state or any municipality, county, or other political subdivision of the state; nor shall an officer or employee of an agency have or hold any employment or contractual relationship that will create a continuing or frequently recurring conflict between his private interests and the performance of his public duties or that would impede the full and faithful discharge of his public duties.
85. In order to be concluded that Respondent violated the first part of Section 112.313(7), Florida Statutes, as alleged, Advocate must establish the following elements:
1. The Respondent must have been a public officer or employee.
2. The Respondent must have been employed by or have had a contractual relationship with a business entity or an agency.
3. Such business entity or state or agency must have been subject to the regulation of, or doing business with, the agency of which the Respondent was an officer or employee.
86. Again, with regard to the first element, the parties have stipulated that Respondent as Mayor, was a public official subject to the requirements of Part III, Chapter 112, Florida Statutes.
87. As to the second element, it is not disputed that Respondent, while Mayor of Hialeah Gardens, had a contractual relationship with Perfect Builders, a construction company, doing business with the City. Respondent admitted that the subject contractual relationship existed by virtue of his serving as qualifying contractor for Perfect Builders. Furthermore, Respondent acknowledged that as qualifier, Perfect Builders paid him $350.00 a month.
88. With regard to the third element, there is no dispute that while Respondent was Mayor, Perfect Builders, the company with which he had an on-going contractual relationship, was doing business with the City. The evidence established that Perfect Builders repaired or constructed a gazebo for the City at a cost of $13,000.00 and also did a $1,900.00 construction project at the City Police Department. In both of these instances, it was Respondent who selected Perfect Builders for these projects.
89. Each of the elements required to establish a violation of the first part of Section 112.313(7)(a), Florida Statutes, has been proven. Accordingly, Respondent had a conflicting contractual relationship within the purview of Section 112.313(7)(a), Florida Statutes, and has violated that provision.
Based upon the foregoing Findings of
Fact and Conclusions of Law, it is hereby,
RECOMMENDED that a final order and public report be entered finding that Respondent, George Hameetman, violated Sections 112.313(6) and 112.313(7)(a), Florida Statutes; imposing a civil penalty of $3,000.00 and restitution of $3,618.81; and issuing a public censure and reprimand.
DONE AND ENTERED this 20th day of January, 2000, in Tallahassee, Leon County, Florida.
_________________________________
CAROLYN S. HOLIFIELD
Administrative Law Judge
Division of Administrative Hearings
The DeSoto Building
1230 Apalachee Parkway
Tallahassee, Florida 32399-3060
(850) 488-9675 SUNCOM 278-9675
Fax Filing (850) 921-6847
Filed with the Clerk of the
Division of Administrative Hearings
this 20th day of January, 2000.
COPIES FURNISHED:
Virlindia Doss, Esquire
The Capitol, Plaza Level 01
Tallahassee, Florida 32399-1050
Charles Toledo, Esquire
8201 Peters Road, Suite 400
Fort Lauderdale, Florida 33324
Sheri L. Gerety, Complaint Coordinator
Florida Commission on Ethics
Post Office Drawer 15709
Tallahassee, Florida 32317-5709
Phil Claypool, General Counsel
Florida Commission on Ethics
Post Office Drawer 15709
Tallahassee, Florida 32317-5709
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.