BEFORE THE
STATE OF
FLORIDA
COMMISSION
ON ETHICS
In re TOM RAMICCIO, )
) Complaint
No. 99-049
Respondent. )
DAH
Case No. 00I-0265EC
)
) Final
Order No. 00-48
________________________)
This
matter came before the State of Florida Commission on Ethics, meeting in public
session on October 5, 2000, pursuant to the Recommended Order of the Division
of Administrative Hearings' Administrative Law Judge rendered in this matter on
August 2, 2000 [a copy of which is attached and incorporated by
reference]. The Administrative Law
Judge (“ALJ”) recommends that the Commission enter a final order and public
report finding that the Respondent, TOM RAMICCIO, as Mayor of the City of Lake
Worth, violated Section 112.313(6), Florida Statutes, by using his position to
imply that he could prevent the Complainant, Ms. Carol Dippel, from securing
business from the City in order to intimidate her into either supporting him or
at least withdrawing her visible support for Ms. Wynn, Respondent’s
opponent. As to these violations, the
ALJ recommends that a civil penalty of $2,000 be imposed upon the Respondent,
and that he be publicly censured and reprimanded.
This
matter began with the filing of a complaint on April 19, 1999 by Carol Dippel
alleging that the Respondent, TOM RAMICCIO, as Mayor of the City of Lake Worth,
violated Section 112.313(6) of the Code of Ethics for Public Officers and
Employees (Part III, Chapter 112, Florida Statutes). The allegations were found to be legally sufficient to allege a
possible violation of Section 112.313(6), Florida Statutes, and Commission
staff undertook a preliminary investigation to aid in the determination of
probable cause. On September 2, 1999,
the Commission on Ethics issued an order finding probable cause to believe that
the Respondent had violated Section 112.313(6), Florida Statutes, by misusing
his official position by threatening to discontinue the City's patronage of the
Complainant's business because she displayed the campaign sign of one of the
Respondent's opponents in her business window.
This matter was forwarded by the Commission on Ethics to the Division of
Administrative Hearings for assignment of an ALJ to conduct the final hearing
and prepare a recommended order. A
formal evidentiary hearing was held before the ALJ on March 31, 2000. A transcript of the hearing was filed and
the parties then filed proposed recommended orders with the ALJ. The ALJ’s Recommended Order was transmitted
to the Commission and to the parties on August 2, 2000, and the parties were
notified of their right to file exceptions to the Recommended Order with the
Commission within 15 days from the date that the Recommended Order was rendered
(by August 17, 2000). Thereafter, Respondent timely filed exceptions to the ALJ’s Recommended Order. The Commission Advocate timely filed her
response entitled “Advocate’s Response
to Respondent’s Exceptions” (“Advocate’s Response”).
Under
Section 120.57(1)(l), 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 ALJ 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 ALJ, the Commission is bound by that
finding.
Under the
Section 120.57(1)(l), Florida Statutes, an agency may reject or modify the
conclusions of law over which it has substantive jurisdiction and
interpretations of administrative rules over which it has substantive
jurisdiction. When rejecting or
modifying such conclusion of law or interpretation of administrative rule the
agency must state with particularity its reasons for rejecting or modifying
such conclusion of law or interpretation of administrative rule and must make a
finding that its substituted conclusion of law or interpretation of
administrative rule is as or more reasonable than that which was rejected or
modified.
Having
reviewed the Recommended Order and listened to the arguments of the parties,
the Commission makes the following findings, conclusions, rulings and
recommendations.
RULINGS ON
RESPONDENT'S EXCEPTIONS TO THE
ALJ’S
FINDINGS OF FACT
1. The Petitioner excepts to paragraph 11 of the
ALJ's Recommended Order, which he claims is not based on competent, substantial
evidence. He claims that competent,
substantial evidence of record to support the ALJ’s finding that the
Respondent’s statements were “intimidating” and were “giving her [the
Complainant] a hard time” is absent. He also faults the ALJ for characterizing
the nature of the conversation between the Respondent and the Complainant based
on the perception of a non-participating third party.
As noted
above, and as stated by the court in Heifetz v. Department of Business
Regulation, Division of Alcoholic Beverages & Tobacco, 475 So. 2d 1277,
1281 (Fla. 1st DCA 1985):
It is the
hearing officer’s function to consider all the evidence presented, resolve
conflicts, judge credibility of witnesses, draw permissible inferences from the
evidence, and reach ultimate findings of fact based on competent substantial
evidence. State Beverage Department
v. Ernal, Inc., 115 So. 2d 566 (Fla. 3d DCA 1959). If, as is often the case, the evidence
presented supports two inconsistent findings, it is the hearing officer’s role
to decide the issue one way or the other.
The ALJ
properly fulfilled her function here. It is not our function to reweigh the evidence or attempt to draw
different inferences from the evidence as long as there is competent,
substantial evidence to support the ALJ’s findings, as there is here. We also are not free to reevaluate the
quantity and quality of the evidence beyond determining whether the evidence is
competent and substantial. Because
there is competent, substantial evidence of record to support the ALJ’s
finding, as noted in the Advocate’s Response at pp. 5 and 6, Petitioner's exception
is rejected.
Moreover,
contrary to Respondent’s argument that the ALJ characterized the nature of
Respondent’s and Complainant’s conversation, she simply reports it. She does not find that Respondent’s
statements were “intimidating” and/or were giving her [the Complainant] a hard
time.” Rather, she finds that Ms. Douglas believed that
Respondent’s conduct was intimidating and Ms. Douglas
characterized the Respondent’s statements as “giving [the Complainant] a
hard time.” Respondent misreads the
ALJ’s finding here.
2. Respondent next excepts to the ALJ’s Finding
of Fact No. 12 wherein she finds that
Ms. Douglas’ testimony was credible and her account of Respondent’s
statement corroborated that of the Complainant. He argues that the ALJ’s finding is not based on competent,
substantial evidence.
It is not
our function to reweigh the evidence or to rewrite the ALJ’s finding as long as
there is competent substantial evidence to support the finding, as there is
here. (See Advocate’s Response at pp. 6 and 7)
Here, it appears that the ALJ fulfilled her function of resolving
conflicts, judging the credibility of witnesses, drawing permissible inferences
from the evidence, and reaching ultimate findings of fact based on competent,
substantial evidence. Therefore,
Petitioner’s exception is rejected.
3.. Petitioner excepts to the ALJ’s Finding of
Fact No. 15 wherein she finds that the Respondent was not involved in any of
the purchases of flowers or other products or services by the City from
Complainant’s store. Nevertheless, she
finds that the City Manager and both the City Manager’s and Respondent’s
secretary were authorized to purchase flowers on behalf of the City. Although the Respondent claims that the
finding is not based on competent, substantial evidence of record, his dispute
seems to be with the ALJ’s failure to make an additional finding, rather than
with the facts found.
It is the
ALJ’s function to resolve conflicts, to judge the credibility of witnesses, to
draw permissible inferences from the evidence, and to reach ultimate findings
of fact based on competent substantial evidence. It is not our function to reweigh the evidence as long as there
is competent substantial evidence to support the ALJ’s findings as there are
here. Inasmuch as the ALJ fulfilled her
function of weighing the evidence, judging the credibility of witnesses, and
drawing permissible inferences from the evidence, we are not free to supplement
her findings. As the Court stated in Manasota
88, Inc. v. Tremor, 545 So. 2d 439 (Fla. 2d DCA 1989):
Agency
fact-finding independent of and supplementary to D.O.A.H. proceedings has been
specifically disapproved. See e.g.
Friends of Children v. Department of Health and Rehabilitative Services,
504 So 2d 1345 (Fla. 1st DCA 1987).
Therefore,
based on the reasons stated herein and in paragraph 1 above, and because we
find that substantial, competent evidence exists to support the ALJ’s finding,
as noted in the Advocate’s Response at p. 7, Respondent’s exception is
rejected.
4. Respondent excepts to the ALJ’s Finding of
Fact No. 16 wherein the ALJ finds as follows:
The street
painting festival was co-chaired by Respondent’s friend and supporter, Marion
Webber, and funded in part through City grant money. In prior years, the festival had used Ms. Dippel’s store to
provide gifts to participants.
Rather than dispute the ALJ’s actual findings, Respondent argues
that the findings reflect only a portion of the evidence that is “sufficiently
relevant and material” and necessary to support a finding that a violation of
the ethics code occurred. Respondent
claims that no evidence was presented at the hearing to indicate that he took
any action, as Mayor, to direct that purchases not be made from the
Complainant’s store. He also claims
that the evidence indicates that following the 1999 Street Painting Festival,
flowers were purchased by the festival from the Complainant as a thank you
token. Therefore, he argues that the finding should be modified to be
consistent with the record and his exception.
For the reasons stated in paragraphs 1 and 3 above, and because
competent substantial evidence of record exists to support the ALJ’s finding, as indicated in the Commission
Advocate’s Response at p. 8, Respondent’s exception is rejected.
5. Respondent excepts to
the ALJ’s finding of fact No. 17 wherein the ALJ finds as follows:
After the February 21, 1999
incident, Ms. Dippel received no more business from the City of Lake Worth or
the festival.
Respondent
argues that the ALJ’s finding reflects only a portion of the evidence that is
“sufficiently relevant and material.” He argues that the ALJ should have found
that the City was free to make its flower purchases from any vendor, that the
City has regularly purchased flowers from another florist, and no policy,
ordinance, or regulation of the City requires it to purchase flowers from
Complainant’s store. He also argues
that the ALJ’s finding that the Complainant received no more business from the
festival is contrary to the only competent, substantial evidence in the record.
With the
exception of that portion of Respondent’s exception concerning Complainant’s
not receiving business from the festival after the February 21, 1999 incident,
Respondent’s other exceptions are rejected for the reasons stated in paragraphs
1 and 3 above, and because competent substantial evidence of record exists to
support her findings, as indicated in the Commission Advocate’s Response at p.
8. Respondent’s exception is granted
with respect to the ALJ’s finding that the Complainant received no more
business from the Festival after the February 21, 1999 incident. Ms. Webber, who was the chair of the
Festival, testified that after the 1999 Festival she sent Randy Roody flowers
and believes that she also sent flowers to the Department of Public Works. However, Ms. Webber’s testimony was not
clear about whether the purchase came from Complainant’s store and there was no
contrary evidence on this point.
Therefore, Finding of Fact No. 17 shall be corrected to read as follows:
After the
February 21, 1999 incident, Ms. Dippel received no more business from the City
of Lake Worth.
6. Respondent next excepts to the ALJ’s Finding
of Fact No. 18 wherein she finds that, with the exception of Respondent’s
threat, which he denies ever happened, the Respondent admitted that the
Complainant’s version of what happened on February 21, 1999, is accurate. The
ALJ finds further that the Complainant’s testimony is credible, and accepts her
version of events relative to Respondent’s statements to her. The Respondent, however, argues that the proceedings upon which the
findings were based did not comply with the essential requirements of the law
because the ALJ refused to admit into evidence a 76 page letter which was
addressed to the Commission on Ethics and written by the Complainant. The letter was offered into evidence by the
Respondent as an exhibit for purposes of demonstrating Complainant’s bias
towards the Respondent. Respondent also
argues that the findings themselves are not based on competent substantial
evidence.
For the
reasons stated in the Commission Advocate’s Response (pp. 1 - 5), we find that
the ALJ did not abuse her discretion in refusing to admit the Complainant’s
letter into evidence. We also find that
the Respondent was not prevented from impeaching the Complainant, he simply
chose to attempt to impeach her by introducing the letter, as to which he also
was permitted to proffer his examination of the Complainant. Consequently, we find that the proceedings
complied with the essential requirements of law.
7. Respondent excepts to the ALJ’s findings of
fact contained in her Conclusion of Law No. 29, wherein she finds or concludes
that the evidence established that the Respondent used his position as Mayor to
imply that he could prevent the Complainant from securing business from the
City, and that Respondent’s goal was to intimidate the Complainant into either
supporting him or at least withdrawing her visible support for Ms. Wynn, his
opponent. Respondent claims that these
findings of fact, which, he writes, are incorrectly characterized as
conclusions of law, are not based on competent substantial evidence because
there is no evidence that the Respondent actually used his position to
discontinue the City’s patronage of the Complainant’s store or to direct staff
not to do business with Complainant’s store.
As the
Commission Advocate correctly notes in her Response at pp. 9 and 10, to the
extent that the ALJ’s findings are factual in nature, they are dependent on the
weight or credibility of the testimony of witnesses; they are susceptible of
ordinary methods of proof; and they do not involve issues over which the
Commission on Ethics has claimed special insight. Therefore, as the Court stated in Goin v. Commission on Ethics,
658 So. 2d 1131 (Fla. 1st DCA 1995), it is for the ALJ "to consider all
the evidence presented, resolve conflicts, judge credibility of witnesses, draw
permissible inferences from the evidence, and reach ultimate findings of fact
based on competent, substantial evidence." Inasmuch as the ALJ’s conclusions flow from the facts found, and
inasmuch as they are supported by competent substantial evidence in the record,
Petitioner’s exception is rejected.
What the
Respondent intended to convey to the Complainant when he told her that the City
would no longer do business with her and what his purpose was in doing so are
questions of intent, properly reserved for the finder of fact. Kinney v. Dept. of State, Division of
Licensing, 501 So. 2d 129, 132 (Fla. 5th DCA 1987). We agree with the Commission Advocate that
the record support for the ALJ’s findings is in the context in which it was
made, that is, that Respondent’s statement was made during the course of a
brief, spirited conversation which the Respondent initiated by entering
Complainant’s shop to inquire why she was supporting his opponent, and during
which she disagreed with him.
Therefore, we find that because the ALJ’s findings are supported by
competent substantial evidence of record, Respondent’s exceptions are rejected.
RESPONDENT’S
EXCEPTIONS TO THE ALJ’S
CONCLUSIONS
OF LAW
1. Respondent’s first two exceptions to the ALJ’s
Conclusions of Law are to Paragraph No. 29 of her Recommended Order wherein she
concludes that Respondent’s use of his position to imply that he could prevent
the Complainant from obtaining business from the City and to intimidate her
into either supporting him or at least withdrawing her visible support for
Respondent’s opponent satisfies the second and third elements necessary to
establish a violation of Section 112.313(6), Florida Statutes. Respondent argues that no evidence exists to
indicate that the Respondent used or attempted to use his position to
discontinue the City’s patronage of Complainant’s store or to direct City staff
not to do business with the Complainant’s business.
As the Court reiterated in Goin v.
Commission on Ethics, 658 So 2d 1131 (Fla. 1st DCA 1995), and initially
held in Langston v. Jamerson, 653 So. 2d 489 (Fla. 1st DCA 1995), the
question of whether the facts, as found in the recommended order, constitute a
violation of a rule or statute, is a question of ultimate fact which the agency
may not reject without adequate explanation.
Because the facts found by the ALJ appear to be ultimate facts which are
based on her prior findings, which also were based on competent, substantial
evidence of record, we must reject the Respondent’s exception.
Respondent
appears to argue here that: (a) the ultimate finding of whether an element of
an allegation has been proven is a question of law, rather than fact; and (2)
that, as a matter of law, even a factual finding that the Respondent used use
his position as Mayor to imply that he would prevent the Complainant from
securing business from the City does not demonstrate a use of office. We do not agree.
As noted
above, the third sentence of this Conclusion of Law represents a finding of an
ultimate fact. In Goin v. Commission
on Ethics, 658 So. 2d 1131 (Fla. 1st DCA 1995), the Court dealt with a case
in which this Commission overturned a hearing officer's finding--labeled a
Conclusion of Law--that there was insufficient evidence to prove the violation
alleged. The First District reversed saying:
By stating
he was not persuaded, the hearing officer engaged in the act of ascribing.
weight to the evidence. Florida's
Administrative Procedures Act relies upon a hearing officer “to consider all
the evidence presented, resolve conflicts, judge credibility of witnesses, draw
permissible inferences from the evidence, and reach ultimate findings of fact
based on competent, substantial evidence." Heifetz v. Department of
Bus. Reg., 475 So. 2d 1277, 1281 (Fla. 1st DCA 1985). An agency, however,
may not "weigh the evidence presented ... or otherwise interpret the
evidence to fit its desired ultimate conclusion." Id., In somewhat different
circumstances, a hearing officer’s finding that "the evidence was
insufficient to show criminal intent was a finding of fact, not a conclusion of
law." Kinney, 501 So. 2d at
132. As this Court has recently held, the question of whether the facts, as
found in the recommended order, constitute a violation of a rule or statute, is
a question of ultimate fact which the agency may not reject without adequate
explanation. Langston v. Jamerson,
653 So. 2d 489 (Fla 1st DCA 1995).
We agree
with the Commission Advocate’s argument in response to this exception wherein
she writes that to suggest that the Respondent's statements, made in the
context described, do not constitute a use of office strains credulity. Respondent’s contention also is contrary to
our long held view that a use of office
may be implicit. For example, in In
re: L.H. Lancaster, FALR 1567-A, 1571-A (Ethics 1983), we dealt with a
misuse of office by a supervisor of elections making uninvited sexual advances
toward subordinate personnel in his office. While there were no explicit
threats of job related penalties for employees who protested, we found that
because Lancaster had the authority to hire and fire personnel, a use of his
official position "was implicit in his conduct." We also have opined
that the mere identification of oneself as a public official can be a use of
office. In CEO 91-38, for example, in a discussion of the “misuse of office”
statute, we concluded that identification of oneself in correspondence as a
“city council member” “may be appropriate, as in the political contexts noted
above, or it may be inappropriate, for example, if the letter were being sent
settle a strictly private dispute with a debtor or creditor."
Since we
have determined that the mere invocation of one's status as a public official
may constitute a use of office, it stands to reason that the explicit statement
of the Mayor as to what action the City will or will not take in the future
also can constitute a use of office.
Furthermore, contrary to Respondent’s assertion, the actual carrying out
of the threat need not be present in order for the “use of position” to exist.
2. Respondent’s third exception to the ALJ’s
Conclusions of Law is to her Paragraph No. 31 wherein she concludes as follows:
In the
context in which the remark was made, the evidence clearly established that the
Respondent intended the threatened discontinuance of the City's patronage to
[Complainant’s] store as punishment for her supporting Respondent's political
opponent. The statement and conduct of
Respondent was intentional and inconsistent with Respondent's performance of
his public duties. Based on the
foregoing, this element has been proven.
The
Respondent contends that there is no evidence that he acted corruptly. However, the Commission Advocate correctly
notes that this is a question of ultimate fact within the province of the ALJ
to determine. As the Court reiterated in Goin v. Commission on Ethics,
658 So 2d 1131 (Fla. 1st DCA 1995), and initially held in Langston v.
Jamerson, 653 So. 2d 489 (Fla. 1st DCA 1995), the question of whether the
facts, as found in the recommended order, constitute a violation of a rule or
statute, is a question of ultimate fact which the agency may not reject without
adequate explanation.
An element
of a Section 112.313(6) violation is that a public officer or employee
“corruptly” used or attempted to use his or her official position or the
resources of his or her office.
“Corruptly” is defined at Section 112.313(9), Florida Statutes, to mean
done with
wrongful intent and for the purpose of obtaining, or compensating or receiving
compensation from some act or omission of a public servant which is
inconsistent with the proper performance of his or her public duties.
Initially,
we note that intent is a matter for the trier of fact to determine. Dobry v.
State, 211 So. 2d 603 (Fla. 3d DCA 1968).
It is seldom susceptible of direct proof, but is usually shown by
circumstantial evidence. Busch v. State, 466 So. 2d 1075 (Fla. 3d DCA
1984), Williams v. State, 239 So. 2d 127 (Fla. 4th DCA 1970). It also “may be presumed from the facts and
circumstances surrounding the act.” Board
of Regents v. Videon, 313 So. 2d 433 (Fla. 1st DCA 1975).
We find
that the ALJ correctly concluded that the “wrongful intent” required for the
Respondent to have acted “corruptly” was determined from the circumstances
surrounding his conversation with the Complainant. We also find that the ALJ’s conclusion flows from the facts found
and is supported by competent substantial evidence in the record. Because we
find that the ALJ’s finding of corrupt intent was permissible and reasonable
under these facts, we reject the Respondent’s exception.
With the
exception of Finding of Fact No. 17 relative to the Street Festival’s purchase
of flowers from the Complainant in 1999, the Findings of Fact set forth in the
Recommended Order are approved, adopted, and incorporated herein by
reference. Finding of Fact No. 17 is
hereby modified to the extent stated in paragraph No. 5 above.
1. The Conclusions of Law set forth in the
Recommended Order also are approved, adopted, and incorporated herein by
reference; and
2. Accordingly, the Commission on Ethics
concludes that the Respondent, as Mayor of the City of Lake Worth, violated
Section 112.313(6), Florida Statutes, by using his position to imply that he
could prevent the Complainant, Ms. Carol Dippel, from securing business from
the City in order to intimidate her into either supporting him or at least
withdrawing her visible support for Ms. Wynn, Respondent’s opponent.
The ALJ’s
recommendation of $2,000.00 as a civil penalty for Respondent’s violation of
Section 112.313(6), Florida Statutes, is accepted. Likewise, her recommendation that the Commission recommend that a
public censure and reprimand be issued to the Respondent also is accepted.
In
consideration of the foregoing and pursuant to Sections 112.313(7) and 112.324,
Florida Statutes, the Commission recommends that the Governor impose a civil
penalty upon the Respondent, TOM RAMICCIO, in the total amount of $2,000.00,
and that he receive a public censure and reprimand.
ORDERED by the State of Florida Commission
on Ethics meeting in public session on October 5, 2000.
____________________________
Date Rendered
_______________________________
Howard Marks
Chair
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, P.O. DRAWER 15709, TALLAHASSEE,
FLORIDA 32317-5709; AND BY FILING A COPY OF THE NOTICE OF APPEAL ATTACHED TO
WHICH IS A CONFORMED COPY OF THE ORDER DESIGNATED IN 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. Mark Herron,
Attorney for Respondent
Ms. Virlindia Doss,
Commission Advocate
Ms. Carol Dippel, Complainant
The Honorable Carolyn S. Holifield,
Administrative Law Judge
Division of Administrative Hearings