BEFORE
THE
STATE
OF FLORIDA
COMMISSION
ON ETHICS
In re
MITCHELL KINZER, )
)
Respondent. ) Complaint No. 90-163
) Final
Order No. COE ____
)
________________________)
FINAL
ORDER AND PUBLIC REPORT
This matter came before the Commission on
Ethics on the Recommended Order rendered in this matter on January 25, 1994 by
the Division of Administrative Hearings' Hearing Officer. The Hearing Officer recommends that the
Commission issue its public report and final order finding that Respondent
violated Section 112.313(6), Florida Statutes, with regard to the expenditure
of $11.25 for dry cleaning and Section 112.3135(2)(a), Florida Statutes, by
participating in his wife's appointment to the Community Center Advisory
Board. She also recommends a penalty of
$11.25 restitution and $300 civil penalty, for a total of $311.25. The Respondent filed his exceptions on
February 11, 1994 along with a Motion for Continuance of the Commission hearing
scheduled for March 10, 1994 in order that he might have the opportunity to
file a transcript of the DOAH hearing.
The Motion was granted by Order of the Commission Chairman on February
16, 1994, and the transcript subsequently was filed on March 14, 1994. The Commission Advocate filed her Response
to Exceptions on March 28, 1994.
Having reviewed the Recommended Order, the
Respondent's Exceptions, the record of the public hearing of this complaint,
including the transcript, and the Commission Advocate's Response to Exceptions,
and having heard arguments of counsel for the Respondent and the Commission's
Advocate, the Commission makes the following findings, conclusions, rulings,
and recommendations:
STANDARDS FOR
REVIEW
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.
1. A
review of Respondent's "Exceptions to Recommended Order" reveals
that, although Respondent incorporates into his exceptions a "Preliminary
Statement," "Summary of Hearing Officer's Recommendation," and
"Introductory Facts" which are subdivided into "The $11.25
Expenditure" and "Appointment of Regan Kinzer," his only
specific reference is to paragraph 12 of the Hearing Officer's Findings of Fact
which we discuss in paragraph 2 below.
The remainder of Respondent's exceptions are arguments which are not
specifically directed at any particular paragraph of the Hearing Officer's
Conclusions of Law. Respondent does not
indicate that any of the Hearing Officer's specific findings of fact are not
supported by competent substantial evidence.
With respect to the "$11.25
Expenditure," Respondent argues that because the City of Surfside had no
guidelines as to what was an appropriate expenditure for reimbursement to a
member of the City Council and because there was no showing that the Respondent
acted with wrongful intent, the Hearing Officer could not conclude that he
acted corruptly, as is required for a violation of Section 112.313(6), Florida
Statutes, to exist. With respect to the
appointment of Respondent's wife to the Advisory Board of the Surfside
Community Center, Respondent reiterates his argument, which was rejected by the
Hearing Officer, that his vote on his wife's appointment was compelled by
Section 286.012, Florida Statutes.
To
the extent that through his inclusion of his "Preliminary Statement,"
"Summary of Hearing Officer's Recommendation," "Introductory
Facts," and argument, Respondent is requesting that the facts found by the
Hearing Officer be supplemented, his exceptions are rejected. 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.
It is not our
function to reweigh the evidence as long as there is competent substantial
evidence to support the Hearing Officer's findings, as there is here. Inasmuch as the Hearing Officer fulfilled
her function of weighing the evidence, judging the credibility of the
witnesses, and drawing permissible inferences from the evidence, we are not
free to supplement her findings. See Manasota
88, Inc. v. Tremor, 545 So. 2d 439 (Fla. 2d DCA 1989), where the Court
stated:
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).
2. In
paragraph 12 of the Recommended Order, the Hearing Officer finds that, with the
exception of the cleaning bill, the items at issue were either plainly related
to Respondent's duties or were the type of items that had been considered
proper for reimbursement by the Town.
She also found that there was no evidence of guidance provided to the
Commissioners other than a case-by-case informal determination by the Town
Manager, who also was weary of disputes and subject to removal by a majority of
the Town Commission. However,
Respondent argues, there was no specific prohibition against his utilizing
$11.25 for dry cleaning. He also argues
that it had been the position of the Town Commission and the City Attorney that
the "stipend" could be used for any purpose whatsoever provided that
it did not exceed the annual budgeted amount.
Although there is some question about
whether Respondent received a stipend under the County's pre-May 1990 policy,
his claim that the "stipend" could be used for any purpose whatsoever
provided that it did not exceed the annual budgeted amount is correct, if it
were a "stipend." However,
the $11.24 drycleaning reimbursement did not come out of the flat allowance
that Respondent refers to (if it had, questions as to its propriety would have
been for the Internal Revenue Service, not for the Commission on Ethics). Therefore, the question is whether the
$11.25 dry cleaning reimbursement came within the terms of Resolution 1272,
that is, whether the expenditure was made "in behalf of the Town. . . for
official representation, registration and expenses while attending established governmental functions in an amount
not to exceed $1,000 per year in office."
Even allowing for some gray areas, the $11.25 cleaning bill reimbursement
clearly did not come within the terms of that resolution. Therefore, we find that the Hearing
Officer's finding is supported by competent substantial evidence of record.
3. In
justifying the $11.25 cleaning expense, Respondent argues that any expense
incurred which would not have been incurred but for one's service as a
"municipal representative" is related to the business of the City. He also argues that the $11.25 expense was
related to City business, was not in contravention of City policy or rules, and
was not an expenditure that Respondent endeavored to conceal. His argument, which attempts to justify
reimbursement of virtually any expense by a member of the governing body, is
rejected for the reasons stated in paragraph No. 2 above.
4. Respondent
argues that the Hearing Officer was required to make a factual finding that the
$11.25 cleaning expense was incurred with corrupt intent in violation of
Section 112.313(6), Florida Statutes.
He writes, "[c]orruptly" is defined in Section 112.312(9),
F.S. as "done with wrongful intent."
We find that Respondent's statement is only
partially correct. The definition of
"corruptly" is set forth at page 7, paragraph 18 of the Hearing
Officer's Conclusions of Law. Applying
this definition to Section 112.313(6), Florida Statutes, the Hearing Officer
was required to find that the Respondent acted with wrongful intent to obtain a
benefit and such act was inconsistent with the proper performance of his public
duties.
5.
Respondent argues that because Section 112.313(6), Florida Statutes, is penal
in nature, the Supreme Court has held that "it must be construed strictly
as an act of such highly penal character is required to be construed." In City of Miami Beach v. Galbut, 626
So. 2d 192 (Fla. 1993), the Supreme Court in approving a strict construction of
the anti-nepotism law (Section 112.3135(2)(a), Florida Statutes) wrote:
When a statute imposes a penalty, any doubt
as to its meaning must be resolved in favor of strict construction so that
those covered by the statutes have clear notice of what conduct the statute
proscribes. State v. Llopis, 257
So. 2d 17, 18 (Fla. 1971).
Id. at 194.
While we accept Respondent's argument, we find that a strict
construction of Sections 112.313(6) and 112.3135(2)(a), Florida Statutes, does
not alter the conclusions reached by the Hearing Officer.
6. Respondent
argues, "it is apodictic that a person acting corruptly endeavors to
conceal his acts," and the fact that Respondent made public his
expenditure controverts a finding of corrupt intent. Respondent argues that his actions were "candid, forthright,
patent and undertaken without any guidelines as to what is and is not
considered by the City Commission to be the business of the City.
Initially, we note our disagreement with
Respondent's tenet that a person acting corruptly endeavors to conceal his
acts. We find that this is not always
true. Secondly, while Respondent's
actions may have been "candid, forthright, [and] patent, his disclosure of
his expenditures was a necessary prerequisite for reimbursement for the month
in which the City returned to its reimbursement system, retroactive to the
first of the month. At the end of that
month, Respondent quit maintaining his list.
See Finding of Fact No. 8; Tr. 46.
Respondent only kept his list on the advice of his accountant (Finding
of fact No.6, Advocate's Exhibit A2, p. 24), who had advised him that town
related expenses would not be taxed as income.
Respondent kept the list out of his own self interest. We ascribe no special credit to Respondent
for his disclosure. We are of the
opinion that Respondent's disclosure of his list does not demonstrate a lack of
wrongful intent, as Respondent contends.
Finally, we note that with the exception of the cleaning expense, the
Hearing Officer considered the fact that Respondent had no reasonable notice
regarding the impropriety of most of the expenditures for which he sought
reimbursement (See Conclusion of Law No. 22) a factor in her concluding that
there was no wrongful intent. In this
respect, the Hearing Officer agrees with Respondent's contention, and we do not
disagree. However, with respect to the
cleaning expense, the Hearing Officer properly inferred wrongful intent from
her finding absurd Respondent's claim that the expense was for a public
purpose.
7. Respondent
argues that in order to find that he violated Section 112.313(6), a finding of
specific intent is required. He argues
that we must find that he "knowingly knew his conduct was wrongful and
that [he] intentionally engaged in [the] wrongful conduct." He claims that no such finding is
sustainable by the record.
We disagree and reject the Respondent's
exception. We find that the Hearing
Officer, noting the Court's admonition in Blackburn v, State Commission on
Ethics, 589 So. 2d 431 (Fla. 1st DCA 1991) that an essential element of
Section 112.313(6) is a finding that Respondent acted with reasonable notice
that his conduct was inconsistent with the proper performance of his public
duties and would be a violation of the law or the Code of Ethics, gave
Respondent the benefit of the doubt on all but one of the challenged
expenditures, but recognized that Respondent could not honestly have believed
that the City was responsible for his dry cleaning. The determination that Respondent acted with corrupt intent
essentially is a question of fact. See,
Heifetz, supra, at 1282.
("Characteristically, whether one is guilty of negligence is a
question for the trier of fact" even where the finding has been stated in
terms of conclusion of law.) See also Dobry
v. State, 211 So. 2d 603 (Fla. 3d DCA 1968). Intent 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). Where
the evidence will support conflicting findings, it is the hearing officer's
role to decide the issue one way or the other (Heifetz, at 1281), as she
did here. The Hearing Officer
essentially found that Respondent knew that the dry cleaning expense was
improper. There is competent
substantial evidence of record to support the Hearing Officer's finding.
8. With
respect to the Hearing Officer's conclusion that Respondent violated Section
112.3135(2)(a), Florida Statutes, by voting for the appointment of his wife to
the Advisory Board of the Surfside Community Center, Respondent essentially
argues again that he was compelled by Section 286,012, Florida Statutes, to
vote on his wife's appointment. For the
reasons stated in the Hearing Officer's Conclusions of Law, Respondent's
exception is rejected.
Section 286.012 allows abstention when
"there is, or appears to be, a possible conflict of interest under the
provisions of Sections 112.311, 112.313, or 112.3143, Florida
Statutes." Section 112.311,
states, in part:
(1)
It is essential to the proper conduct and operation of government that
public officials be independent and impartial and that public office not be
used for private gain other than the remuneration provided by law. The public interest, therefore, requires
that the law protect against any conflict of interest and establish standards
for the conduct of elected officials and government employees in situations
where conflicts may exist.
. . . .
(6)
It is declared to be the policy of the state that public officers and
employees, state and local, are agents of the people and hold their positions
for the benefit of the public. They are
bound to uphold the Constitution of the United States and the State Constitution
and to perform efficiently and faithfully their duties under the laws of the
federal, state, and local governments. Such
officers and employees are bound to observe, in their official acts, the
highest standards of ethics consistent with this code and the advisory opinions
rendered with respect hereto regardless of personal considerations
recognizing that promoting the public interest and maintaining the respect of
the people in their government must be of foremost concern. (Emphasis supplied.)
Respondent
could have abstained from voting based on this section and would not have been
in violation of Section 286.012, Florida Statutes.
Where, as here, there is no requirement of
wrongful intent, Respondent's reliance on the incorrect advice of counsel is
not a defense. See In re Michael Kenton,
13 FALR 1295, 1317 (Commission on Ethics 1989). Respondent's reliance on the prior advice of counsel mitigates,
but does not obviate the violation. See
James Gordon v. Commission on Ethics, 609 So. 2d 125 (Fla. 4th DCA
1992).
Upon review of the record before us, we
conclude that the findings of the Hearing Officer are based upon competent
substantial evidence and that the D.O.A.H. proceedings complied with the
essential requirements of law.
Therefore, the Findings of Fact set forth in the Recommended Order are
approved, adopted, and incorporated herein by reference.
The Conclusions of Law set forth in the
Recommended Order are approved, adopted, and incorporated herein by reference.
Accordingly, the Commission on Ethics finds
that the Respondent violated Section 112.313(6), Florida Statutes, by seeking
and receiving reimbursement for his expenditure of $11.25 for dry cleaning and
Section 112.3135(2)(a), Florida Statutes, with regard to his voting on the
appointment of his wife to the Town's advisory board.
The Hearing Officer recommended that
Respondent be required to pay a penalty of $11.25 restitution and a civil
penalty of $300.00, for a total of $311.25. We find her recommendation to be appropriate.
Having found that the Respondent, Mitchell
Kinzer, as a member of the Surfside Town Commission, violated Sections
112.313(6) and 112.3135(2)(a), Florida Statutes, it is the recommendation of
the Commission on Ethics that a penalty of restitution of $11.25 and a civil
penalty of $300.00 be imposed upon him, for a total of $311.25.
ORDERED by the State of Florida Commission
on Ethics meeting in public session on April 21, 1994.
____________________________
Date
Rendered
_______________________________
Joel
K. Gustafson
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, 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. Neal L. Sandberg, Attorney for
Respondent
Ms. Virlindia Doss, Commission Advocate
Honorable Mary Clark, Hearing Officer
Division of Administrative Hearings