BEFORE THE
STATE OF FLORIDA
COMMISSION ON ETHICS
In re
BERNARD HART,
DOAH
Case No. 91-1890EC
Respondent. Complaint
No. 90-31
__________________________/
FINAL ORDER AND PUBLIC
REPORT
This matter came before the Commission on Ethics
on the Recommended Order
rendered in this matter on August 21, 1991 by the Division of Administrative
Hearings (a copy of which is attached and
incorporated by reference). The
Hearing Officer recommends that the Commission
find that Respondent
violated Sections
112.313(4) and 112.313(6),
Florida Statutes. Respondent filed exceptions.
Having reviewed the
Recommended Order, the Respondent's exceptions, and the record of the public
hearing of this complaint, and having heard the arguments of counsel for the
Respondent and the Commission's Advocate, the Commission makes the following findings, conclusions, rulings
and recommendations:
Rulings on Respondent's
Exceptions
To Findings of Fact
Respondent excepts generally to the Hearing Officer's Findings
of Fact. Respondent argues that the
Hearing Officer has not
referenced the record
in his Recommended Order in
order to substantiate any of
his findings; therefore, the findings
constitute the Hearing
Officer's general impressions of what the record states, rather than
specific findings supported by testimony or
other documentation in
the record, Although Respondent has filed his Exceptions
To Recommended Order And Memorandum
of Law consisting of thirty-six
(36) pages, he claims to have been totally and completely prejudiced in his
ability to file exceptions. This
exception has no merit and is rejected.
Respondent also has not cited any authority for his
assertion that the Hearing Officer is required to reference the record
when making his findings. In
fact, there is none. The only
requirement pertaining to citation
to the record of an administrative proceeding
exists at Fla. Admin. Code Rule 221-6031(3). This rule provides:
No party shall
file any proposed
recommended
order in excess
of forty pages,
unless the Hearing Officer has granted leave to
do so beforehand. Proposed findings of fact
shall be supported by citations to the record,
unless lack of
a transcript makes citation
impossible.
Neither the Florida Statutes nor
any other administrative rule
requires that the Hearing Officer reference the record in rendering his
recommended order.
2. Respondent excepts to
the Hearing Officer's Finding of Fact
in paragraph 12 of the
Recommended Order. Respondent argues
that there was no competent substantial
evidence to support
the Hearing Officer's finding:
"Free cable television
services were provided to public officials
by the Cable Companies only if requested by the public
official." Because there
was competent substantial evidence of record upon which the Hearing Officer
could make this finding,
this exception is rejected. See
Tr. p. 59-60 and Advocate's Exhibit No.
6 (Olmetti Deposition), p.11, p.17, p.22, p.29, p.36, and p.44.
3. Respondent excepts to the
Hearing Officer's findings in paragraphs 14, 15 and 16 of the
Recommended Order. Initially, Respondent argues
that the Hearing Officer's finding, "any public official that
requested free cable television service from the cable companies
was requested to
`monitor' the service
he received," is inconsistent with Robert Steinert's testimony that cable
service is provided to cities with no specific understanding as to what
the purpose of it would be. There
is no
inconsistency here because the
Hearing Officer's finding relates to a public official personally
receiving the free
cable service, while Steinert's testimony refers to
a city receiving the free cable
service.
Respondent also argues that in the second sentence in paragraph 14, the
Hearing Officer erroneously
found that the request to
monitor was not the real reason for the
provision of free
cable services. He argues that
the Hearing Officer based his finding on a question asked of Mr. Olmetti by the
Commission Advocate, which question was objected to by the Respondent, and sustained by the
Hearing Officer. See Tr. 64. Mr. Olmetti was asked: "Would you say that the request of monitoring was
essentially just to make the public
official feel better
about accepting free
service?" Respondent
argues that the
testimony of Mr. Olmetti about the helpfulness of
spotting a problem early on because
of disruptions of service should
have supported a contrary finding. This
argument is rejected.
Respondent's objected that
the Advocate's question
was a leading question.
For that reason, the Hearing Officer properly sustained his
objection. Upon Respondent's counsel's
suggestion, the Advocate then submitted Mr. Olmetti's deposition into
evidence. It was accepted without objection.
At page 12 of the deposition, Mr. Olmetti testified that
the purpose of the Company's policy of providing complimentary cable services
to public officials
was promotion of "good
will". See, also, Tr.
p.60. On page 14, Mr. Olmetti admits
that asking a public official to monitor
services while receiving it
free "would probably
make them feel more comfortable." See Advocate's Exhibit No. 6 (Olmetti
deposition), pp. 45-46. This testimony along with the testimony
about the lack of a formal
monitoring system provides
competent substantial
evidence upon which the Hearing Officer could base his finding.
Respondent's exception, therefore, is rejected.
Respondent excepts to the
Hearing Officer's Finding
of Fact in paragraph 17 of his Recommended Order where
he finds that "the reason the Cable
Companies provided free
cable television services to
public officials was
described as `good
will.'" Respondent argues that this was not the only reason, and it
was not even the major reason. There is competent substantial evidence in
the record upon which the Hearing Officer could base his finding. See Tr. 60
and Advocate's Exhibit No. 6 (Olmetti deposition) p. 35.
Respondent also argues
that the Hearing
Officer did not indicate whose assumption he was
referring to when he also made the finding
in paragraph 17, "it was assumed-that providing free cable to
public officials `couldn't hurt.'"
Respondent argues that this
assumption is not supported by
competent substantial evidence in the
record. Respondent's exception
is rejected. There
is competent substantial evidence in the record upon which the Hearing
Officer could base his finding.
See Advocate's Exhibit
No. 6 (Olmetti deposition) pp. 12-13 (Olmetti
testifying without objection
about the Company's policy).
5. Respondent excepts
to paragraph 18
of the Hearing Officer's
Recommended Order. Respondent does not appear
to disagree with the first part
of the Hearing officer's finding, however, he does disagree with the
following:
[T]he free cable
television services were
provided by the Cable
Companies in the
hope
that public officials, including the
Respondent, would be favorably inclined to the
Cable
Companies. Free cable
television
services were provided to public officials to
influence them to look favorably on the Cable
Companies.
Respondent argues that,
to the contrary, the record shows public officials used free cable television
for the purpose
of monitoring the cable system. Respondent claims, for example, that Mayor
Falck testified he
received complaints about
the cable service and
monitored the service
while he was
mayor. This statement
misrepresents the testimony of Mayor Falck.
Former Mayor Falck testified that complaints were referred to
the City Manager. He did not testify that either he or the City Manager
monitored the complaints through the
use of the cable service which was provided to the City in City Hall. Respondent, however, is correct in
his paraphrasing of the testimony of both Mr.. Steinert and Ms. Massaro.
Their testimony, however, does
not conflict with
the Hearing Officer's finding.
There is competent, substantial
evidence of record to support the Hearings Officer's finding. See
Advocate's Exhibit No. 6
(Olmetti deposition) pp. 23, 45-46 and
Tr. pp. 61 & 69.
Next, Respondent argues that
since the Hearing
Officer specifically found that
the Respondent did
not agree to vote favorably
or use
his official position
to benefit the
cable company, findings about what the cable company hoped as a result
of providing free service are
irrelevant, pure speculation and
unsupported by the record. He also
argues that "the intent of the cable company, a gleaned from the Hearing
Officer's misinterpretation of the
testimony of one individual, five years after the event in question, is
completely irrelevant to the intent of the Respondent at the time that the
service was provided, and no more than an unsupported conclusion by the Hearing
Officer." The Hearing Officer's finding
merely indicates that
an element necessary to
prosecute Respondent for violating Section 112.313(2), Florida Statutes,
is missing. Respondent is wrong,
however, in claiming that the intent of the cable company is irrelevant. He also
is wrong in his implication that the intent of the Respondent is of
prime importance.
We note that
one of the elements of a Section 112.313(4) violation that must
be proved is whether the Respondent
knew, or, with the
exercise of reasonable care, should have known, that the free cable
service was given to influence a vote or other action in which the
officer or employee was expected
to participate in his official capacity.
Thus, in order for the Hearing Officer to make a finding of
fact concerning this element of
the charge against Respondent, evidence concerning the intent of the Cable
Company in giving free
cable service to
engender "good will" and evidence concerning the actions or
inactions of Respondent was relevant. For the above reasons, Respondent's
exception is rejected.
6. Respondent excepts to the Hearing Officer's Finding of
Fact in paragraph 19 of the Recommended Order.
The Hearing Officer qualified
his finding through
use of the word "generally",
and acknowledged that free cable services were provided to officials of some
condominium associations and employees of the Cable Companies. There is
competent substantial evidence to support the
Hearing Officer's finding.
Respondent's exception, therefore, is rejected.
7. Respondent excepts to the Hearing Officer's Finding of
Fact in paragraph 20 of the Recommended Order. Respondent argues
that the Hearing Officer's finding, "as a general rule, the cable
companies did not solicit, offer, or
invite public officials to take
free cable television
services," is inconsistent
with his finding in paragraph 21, that
"American Cable did
offer free service to
some public Officials in the
`western part of Broward County in 1996.'" Here, the Hearing Officer, again, qualified his finding by beginning his finding
with "as a general
rule". There is competent
substantial evidence of record upon which the
Hearing Officer could base
his finding. See Advocate's Exhibit No. 6 (Olmetti
deposition), pp. 11-12, 21.
Respondent appears to argue that
if, as the Hearing Officer
finds in paragraph 21, "American Cable did offer free services to
some public officials in the `western part
of Broward County
in 1986,'" then free cable services were provided even if
the public official had not requested the services. We do not find the
two findings to be
inconsistent. The second part of
paragraph 20 is qualified by the "as a general rule" language. More
importantly, Respondent
testified that he authorized Sydney Stein to have the cable
service installed for him (which
Stein denies, Tr.
p.80). See Tr. p.109.
Respondent can not have it both ways.
He cannot claim that he
solicited or asked someone else to obtain free cable services for him,
while also claiming that
the Cable Company offered the
cable service. For the
reasons stated above,
and because there is
competent substantial evidence
of record to support the Hearing
Officer's findings, Respondent's
exception is rejected.
8. Respondent excepts to the Hearing Officer's finding in
paragraph 21 of his Recommended Order that
"the weight of
the evidence, . .
. failed to prove if the Respondent or any other
official of Tamarac was approached by
the Cable Companies
and offered free cable television services." Respondent argues that the Hearing Officer,
by stating the finding as he has, has placed the
burden on him
to prove his innocence rather than upon the Advocate
to prove that he violated the law.
Respondent's exception has no merit and is rejected.
As stated by the
Court in Heifitz 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., 119 So.2d 566
3d DC 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
Hearing Officer was properly fulfilling this function. It is not our function to reweigh the
evidence as long
as there is competent substantial evidence to
support the Hearing Officer s finding, as there is here.
9. Respondent excepts to
the Hearing Officer's finding in paragraph 25 of the Recommended Order.
Respondent argues that the finding is "logically
incomprehensible" and not
supported by any competent evidence anywhere in the record.
Respondent argues that "review of cable services" does
not refer to anything that
was discussed in the entire
record. We note, however, that by
reading the Hearing Officer's
finding within `the
context of this proceeding, the Hearing Officer was referring to the monitoring of cable services
by Mayor Falck, by his watching cable
television, when
complaints came into
his office. There
is competent substantial
evidence in the record to support the Hearing Officer's finding. See
paragraph 5 above.
Respondent's exception is
rejected.
10. Respondent excepts to the
Hearing Officer's Finding
of Fact in paragraph 27 of the Recommended Order. Respondent argues that the finding that
Respondent received cable television services until January 30, 1990 is a
finding that extends beyond the jurisdiction of this Commission, and
as stated by
the Hearing Officer himself, this date is "well outside the
relevant period of inquiry in this
investigation."
Respondent's argument has
no merit.
While the Commission has
no jurisdiction over
Respondent's actions after he was no longer a public officer, evidence that
he continued to receive the services is relevant to whether Respondent
was receiving the cable services for the purpose of monitoring as he
claimed. Respondent's exception is
rejected.
11. Respondent excepts to the
Hearing Officer's Findings of Fact in paragraphs 28, 29, 30, and 31 of
the Recommended Order. For
the reasons set
forth in paragraph 10 above, Respondent's exceptions
are rejected.
12. Respondent excepts to the Hearing Officer's Finding of Fact
in paragraph 32 of the
Recommended Order. Respondent argues
that there is no evidence in the
record to support
the Hearing Officer's finding,
"in light of the policy of the Cable Companies that free cable
television services were
provided only upon
a request of a public official,
. . . Respondent requested, directly or indirectly, that the free cable
television services be provided to him."
Respondent argues that this ultimate conclusion is based upon a false
premise--the policy of the Cable
Company to provide free cable services only
upon the request of a public official. Respondent argues that contrary
to the Company's stated policy, it did offer
free services to some public officials in the western part
of Broward County in 1986.
Respondent is arguing that there
was an exception to
the Company's policy in
1986, and because
Respondent lives in the western part of Broward County, it is fair to
conclude that he was one of those
public officials who was offered the free cable services. However, there is competent substantial
evidence of record upon which the Hearing Officer could base
his finding. For example, Respondent
testified that he never met with or
talked to the Cable
Company in 1986, before the
cable was installed in his home. He
also testified that he authorized Sydney Stein to arrange for the
cable television services
to be installed in his home. Thus, this testimony along with Mr.
Olmetti's testimony concerning the policy
of the Cable Company and his
experience with public officials was sufficient for the Hearing
officer to make
the finding that he
did here. Respondent's
exception, therefore, is rejected.
13. Respondent excepts to the
Hearing Officer's Finding
of Fact in paragraph 41 of the
Recommended Order. Respondent argues
that the terminology used by the Hearing Officer--"In January 1987,
Tamarac lost the right to regulate the rates that Cable Companies charged.
"--makes it appear that Tamarac alone "lost the right," and
by implication, it may have arisen out
of some of the facts in the instant case.
This exception is rejected as
baseless. No such implication arises from reading
the Hearing Officer's finding,
particularly when we read the
second sentence in
the finding relating to
"municipalities".
Respondent's exception is rejected.
14. Respondent excepts to the
Hearing Officer's Finding of Fact in paragraph 48 of his Recommended
Order. There, the Hearing Officer listed the evidence upon which he based his rejection
of Respondent's testimony, in which
the Respondent justified
his acceptance of free
cable services for purposes of monitoring the service. Respondent
argues the significance of the evidence, although he does not
necessarily disagree with
the facts themselves. However, as we stated in paragraph 8 above,
it is the function of
the hearing officer
to consider all the evidence presented, to resolve
conflicts, to judge credibility of witnesses, to draw permissible inferences
from the evidence, and to reach ultimate
findings of fact
based upon competent
substantial evidence. It is
not our function to reweigh the evidence as long as there is competent
substantial evidence to support
the Hearing Officer's finding,
as there is here.
Respondent's exception is rejected.
15. Respondent excepts to the
Hearing Officer's Finding
of Fact in paragraph 49 of his Recommended Order. The Hearing Officer found that Mr. Stein did
not make the arrangements with
American Cable for Respondent's
free cable service. Respondent argues
that Mr. Stein, upon whose advice he
relied, was uncertain
in his testimony about whether he suggested to Respondent
that Respondent would be better qualified to decide on cable regulation
matters if he had an opportunity to
monitor the cable television; therefore, Mr. Stein's testimony should not have
been credited more than that of Respondent.
We note, however, that Mr. Stein was not equivocal in his testimony that
he did
not discuss arranging
free cable service with
Respondent during his term on the City Council. See Tr. p. 80. There also was no evidence
that free cable
services were foisted upon
Respondent without his
consent. There is competent
substantial evidence of record
upon which the
Hearing Officer could base his finding.
Respondent also argues that he was prejudiced in his ability to impeach
the testimony of Mr. Stein by the Hearing Officer's refusal to allow Respondent to produce evidence which
would show the prior relationship
between the cable
company and Mr.
Stein before Respondent was
elected Mayor, and to demonstrate that Mr. Stein had himself received free
cable television services
from the cable company. We find that any evidence which could have
been elicited in these area would not go to show that the Hearing Officer
was incorrect in his finding. Such evidence could only tend to show that Mr. Stein may have
been guilty of she
same violation that Respondent was charged with
violating. We also find that the
Hearing Officer was correct in
sustaining the objection
of the Advocate relative
to Respondent's questioning of
Mr. Stein about whether he would be willing to sign a letter to the cable
company authorizing the release of his cable records. Tr. p. 88.
Whether or not Mr. Stein was willing during the hearing to sign a letter
releasing his cable records was
irrelevant to the issues before the Hearing Officer. The
Hearing Officer did not abuse his discretion in sustaining the objection.
Respondent also excepts to the last sentence in this finding:
[E]ven if the
evidence had proved
that Mr.
Stein requested that American Cable provide the
Respondent with free cable television services,
[Mr. Stein] would
have done so on behalf of,
and as agent for, the Respondent.
There is competent substantial evidence in the record to support this finding. See Tr. p. 109. Respondent's exception, therefore, is
rejected.
16. Respondent excepts to the
Hearing Officer's Finding
of Fact in paragraph
50 of the Recommended Order in
which he finds that in light of the fact that Cable Companies provided
free cable services to public officials
to influence-them to look favorably on the Cable Companies (See Recommended
Order, Finding of
Fact No. 18), Respondent was provided free cable
television services by the cable Companies during his term as Mayor to
influence him in his official capacity.
Respondent argues that this finding is not supported by
competent substantial evidence and demonstrates the Hearing Officer's difficulty
with distinguishing between his own opinion and the facts which are
supported by competent substantial
evidence in the record. His argument as no merit. The Hearing
Officer's finding is supported by competent substantial evidence. See paragraph
No. 5 above. Respondent's exception is
rejected.
17. Respondent excepts to the
Hearing Officer's Finding of Fact in paragraph 51 of the Recommended Order in which he
finds that Respondent should
have known why he was being provided free cable television service. Respondent argues that this finding
is not a "fact", but a conclusion of the Hearing Officer,
and, again, demonstrates the Hearing
Officer's confusion.
We note that
one of the elements of a Section 112.313(4) violation that must
be proved is that Respondent knew, or, with the exercise of reasonable care,
should have known, that the free cable service was given to influence a vote or
other action in which the officer or
employee was expected to participate in his official
capacity. We also note that
there was competent
substantial evidence in the
record upon which the Hearing Officer could base his finding. Our review of the record indicates that contrary
to Respondent's assertion, there was no competent substantial evidence
of record upon which the Hearing Officer could base a finding that at the time that Respondent was elected
Mayor, the receipt of cable services in the home of a public official was
either for purposes of
monitoring the service or was an
accepted practice in the City of Tamarac and throughout the western part of
Broward County.
Our review of the record indicates
that cable services were given to public official's for purposes of engendering "good will" which could favorably
incline a public official towards a
position being taken by the Cable Company concerning any number of
issues relating to its franchise agreement
with. the City, which
could still come before
the City Council even after
issues concerning rate increases no longer were subject to
City Council approval. The purpose of asking a public
official to monitor the services was to make the public official feel better
about receiving the
free service. The Cable
Company had no expectation that
the public official would actually monitor
cable services for
the Cable Company.
Contrary to Respondent's implied assertion, the record does not indicate
that the accepted practice in the City
of Tamarac and throughout the western part
of Broward County was for a
public official to monitor cable services by receiving these services
in the public official's own home.
For example, Ms. Massaro testified about Mayor Falck monitoring
the correctness of
complaints he received by
watching the cable television in
the Mayor's Office. The provision of cable
services in City-
Hall is provision
of services to the City as
opposed to the provision of cable services to a public official. There is
nothing wrong with
the former. There may
be something wrong with the latter.
For these reasons, Respondent's exception is rejected.
18. Respondent excepts to the
Hearing Officer's Finding
of Fact in paragraph 52 in which he finds that the retail value of the
free cable television services received by Respondent between April 12, 1986
and March of 1988 was $1,649.43.
Respondent argues that because the record reflects that Respondent could
have received the services for less,
the retail rate
is irrelevant. We note, however, that the Hearing Officer's
finding is based upon
the testimony of Mr. Steinert (Tr. p. 19) and Advocate's Exhibit No. 5.
Both were accepted into evidence without objection. The Hearing
Officer, therefore, did
not err in
making this finding. Respondent's exception is
rejected because there
is competent substantial
evidence of record to support it.
19. Respondent excepts to the
Hearing Officer's Findings of Fact in paragraphs 53 and 54 of his Recommended
Order because they relate to
matters beyond the period of
time that he was a public official.
For the reasons
stated i~ paragraph
10 above, Respondent's
exception is rejected.
20. Respondent excepts to the
Hearing Officer's Finding of Fact in paragraph 56 of the Recommended
Order. Respondent argues that as far as the question of
reporting is concerned, a finding that Respondent did not report
the value of
the free cable television services he received is
beyond the jurisdiction of the
Commission. We find, however, that this
finding is based
upon competent substantial evidence
that was not
objected to by Respondent. The question of the jurisdiction of the Commission was
properly addressed by
the Hearing Officer in his
Conclusions of Law.
Respondent also argues that
he did not accept the
cable television as a gift.
Both Respondent's monitoring assertion
as well as the Hearing Officer's function are addressed above.
For these reasons, Respondent's exception is rejected.
21. Respondent excepts to the
Hearing Officer's failure to include in the Recommended Order, Respondent's
proposed findings of fact nos. 8-12,
33, 41 and 56, although he ruled that he had accepted
them. We find that although the
proposed facts are true, they were not
relevant to the issues before the Hearing Officer for determination. This Commission cannot reweigh the
evidence. That was the
function of the Hearing
Officer. We can only modify the
Hearing Officer's Findings
of Fact if
his. findings are
not supported by competent
substantial evidence. We find no error; therefore, this exception
is rejected.
22. Respondent excepts to the
manner in which the Hearing Officer adopted Respondent's proposed
finding of fact no. 14. Respondent's exception is
rejected for the
reasons stated in paragraph 8 above.
23. Respondent excepts to the
Hearing Officer's rejection of his proposed finding of fact no. 15. Respondent's exception is rejected for
the reasons stated in paragraph 8 above.
24. Respondent excepts to the
Hearing Officer's rejection of his proposed finding of fact no. 17. Respondent's exception is
rejected for the reasons stated
in paragraph B
above. Additionally, we
note that Respondent's proposed finding is incorporated in paragraphs 42 and 43 of
the Recommended Order.
25. Respondent excepts to the
Hearing Officer's rejection of his proposed findings of fact nos. 23-27. Respondent's exception is rejected for the reasons stated in paragraphs 8 and
17 above.
26. Respondent excepts to the
Hearing Officer's failure to incorporate Respondent's proposed finding of
fact no. 28 in the Recommended Order and finding instead, paragraphs 12, 20 and 21.
Respondent's exception is rejected
for the reasons
stated in paragraphs 2, 7, and 8
above.
27. Respondent excepts to the
Hearing Officer's failure to accept his proposed finding of fact no. 30 and
adopting instead, the findings
in paragraphs 18
and 30 of the Recommended Order. Respondent's exception is
rejected. We find
that the Hearing Officer has substantially adopted Respondent's proposed finding in
paragraph 18 of the Recommended Order.
28. Respondent excepts to the
Hearing Officer's failure
to adopt Respondent's finding
of fact no.
31 in its entirety.
Respondent's exception is rejected for "the reason's stated in paragraph 8 above.
29. Respondent excepts to the
Hearing Officer's rejection of his proposed finding of fact no. 32. Respondent's exception is rejected for
the reasons stated in paragraph 8 above.
30. Respondent excepts to the
Hearing Officer's failure to incorporate Respondent's finding of fact no. 33
into his Findings of Fact, although
he had accepted it. Respondent's
exception is rejected for the reasons stated in paragraph 21 above.
31. Respondent excepts to the
failure of the Hearing Officer to accept Respondent's proposed finding of fact
no. 34 as written. Respondent's exception
is rejected for
the reasons stated
in paragraphs 8, 12, and 15 above.
See also Tr. p. 154-155.
32. Respondent excepts to the
Hearing Officer's failure to accept Respondent's proposed finding of fact no.
35 as written. Respondent's
exception is rejected
for the reasons
stated in paragraphs 8, 16, and 17 above.
33. Respondent excepts to the
Hearing Officer's rejection of
Respondent's proposed finding
of fact no.
38. Respondent's exception is
rejected for the reasons state in paragraphs 8 and 15 above.
34. Respondent excepts to the
Hearing Officer's rejection of Respondent's finding of fact no. 40. Respondent's exception is rejected for
the reasons stated in paragraph 8 above.
We also note that for purposes of a Section 112.313(4) violation,
assuming that the other
elements are proved,
it makes no difference whether
Respondent requested the cable
television services or it was offered to
him. Of primary importance is the fact that he had
accepted the free service when he should have
known that it
was given with the
intent to influence
his official action. Respondent's emphasis on his
assertion that the free cable services were offered to him is misplaced.
35. Respondent excepts to the
Hearing Officer's rejection of Respondent's
proposed finding of
fact no. 45.
Respondent's exception is rejected for the reasons stated in paragraph 8
above.
36. Respondent excepts to the
Hearing Officer's rejection of Respondent's
proposed finding of
fact. no. 48. Respondent's exception is rejected for the
reasons stated in paragraph 8 above.
37. Respondent excepts to the
Hearing Officer's rejection of
Respondent's proposed finding
of fact no.
49. Respondent's exception is
rejected for the reasons stated in paragraphs 8 and 17 above.
38. Respondent excepts to the
Hearing Officer's rejection of Respondent's proposed findings of fact nos. 50-54. For the reasons stated in paragraphs 8, 15 and 17 above,
Respondent's exception is rejected.
39. Respondent excepts to the
Hearing Officer's rejection of
Respondent's reasons for not filing a
financial disclosure for the receipt of free cable service as a gift in his
proposed finding of fact no.
61. Respondent's exception is
rejected for the reasons stated in paragraph 8 above.
40. Respondent excepts to the
Hearing Officer's rejection of
Respondent's proposed finding
of fact no. 62.
For the reasons stated in paragraph 8 above, Respondent's. exception is
rejected.
41. Respondent excepts to the
Hearing Officer's rejection of
Respondent's proposed findings of
face nos. 63 and 64. For the
reasons stated in paragraph 8 above,
Respondent's exception is rejected.
42. Respondent excepts to the
Hearing Officer's rejection of Respondent's
proposed finding of
fact no. 69. Respondent's exception is rejected for the reasons stated in
paragraph 8 above. See also Tr. p. 138.
43. Respondent excepts to the
Hearing Officer's rejection of
Respondent's proposed finding
of fact no.
70. Respondent's exception is
rejected for the reasons stated in paragraph 8 above.
Respondent excepts to the Hearing Officer's rejection of Respondent's proposed findings of fact
nos. 73-77. For the reasons stated in
paragraph 8 and 10
above, Respondent's exception
is rejected.
Rulings on Respondent's Exceptions to Conclusions of Law
A.
Violation of Section 112.313(4), Florida Statutes
45. Respondent takes
exception to the Hearing Officer's conclusion that he
violated Section 112.313(4),
Florida Statutes, arguing that
the findings of
fact and the
Hearing Officer's analysis do not form a sufficient basis from
which to reach this
conclusion. However, the
facts as found demonstrate that the Respondent was a
public officer who accepted a "thing
of value" when he received free cable television services
during his term of office and that he should have known that he was
being provided free cable
television services to influence his vote on the pending rate increase and
future rate or franchise decisions
in which he was
expected to participate in his official capacity as
Mayor of Tamarac. Therefore, the
Commission denies the
Respondent's exceptions and adopts the Hearing Officer's analysis.
B.
Violation of Section 112.313(6), Florida Statutes.
46. Respondent takes
exception to the Hearing Officer's
conclusion that he violated Section 112.313(6), Florida Statutes,
arguing that the Findings of
Fact and the
Hearing Officer's analysis do not form a sufficient basis from which
to reach the conclusion that he acted "corruptly." However, the facts as found demonstrate that the Respondent would
not have received the
free cable services, a
benefit, if he had not been a public
officer; therefore, by requesting the free cable services, Respondent
used his official position
as Mayor. The facts also
demonstrate that Respondent wrongfully intended to receive the free cable
services knowing that he was not requesting the services for
monitoring and that his
receipt of the free services "`as inconsistent
with the proper performance of his duties.
The Commission, therefore, rejects
the Respondent's exceptions
and adopts the Hearing Officer's analysis.
Findings of Fact
The findings of fact set forth in the. Recommended Order
are approved, adopted, and incorporated herein by reference.
Conclusions of Law
The Commission has previously taken the position that a violation of Section
111.011, Florida Statutes, was a breach of the public trust over which
it has jurisdiction under Article II, Section 8 of the Florida
Constitution to investigate and issue
a public report. To
the extent that
the Hearing Officer's conclusions differ, they are
rejected. However, we do
adopt the Hearing Officer's ultimate conclusion that the
Commission does not have jurisdiction over Respondent's alleged violation
of Section 111.011, Florida
Statutes (1987), having
been divested of this jurisdiction pursuant to Chapter 91-85, Laws of
Florida.
2. The Conclusions of Law set
forth in the Recommended Order
with respect to Jurisdiction, Applicable Statutes and Burden of Proof
(Part A of the Conclusions of Law in the
Recommended Order) and the
Respondent's Violation of
Sections 112.313(4) and 112.313(6) , Florida statutes (Part B
and Part C of the Conclusions of Law
in the Recommended Order) are
approved, adopted, and
incorporated herein by reference to the extent that they are not inconsistent with the above.
3. Accordingly, the Commission
on Ethics finds
that the Respondent violated
Sections 112.313(4) and
112.313(6), Florida Statutes, and hereby dismisses the Complaint in so far as
it charges Respondent with violating former Section 111.011,
Florida Statutes (1987).
Recommended Penalty
The Hearing Officer recommended that the Commission recommend a
civil penalty in
the amount of
$7,000. This amount
is approximately double the amount of the benefit at retail cost that Respondent received by accepting
the free cable services. The Hearing Officer reasoned that by
requiring the Respondent to pay a
civil penalty of $7,000, Respondent will in effect be required to pay $3,416.46
for the retail cost of the benefit
he received and the
amount that he saved, plus a penalty. of just over
$3500. In making this recommendation,
the Hearing Officer concluded that the
maximum penalty of
$5000 for each statutory charge
(See Section 112.317(1)(a)6., Florida Statutes) was too severe under the
facts in this case.
We believe that
the amount of the benefit
considered by the Hearing Officer was too high in light of the fact that the
record reflects that Respondent
would have been entitled to a bulk rate had he paid for the cable
services. After considering the
argument of counsel, we
determine that benefit to have been approximately $700. Therefore we conclude that the
total recommended penalty should be $4200, including
a restitution penalty of $700
and a civil penalty of $3500.
Having found that the Respondent, Bernard Hart, as the Mayor of
Tamarac, violated Sections
112.313(4) and 112.313(6),
Florida Statutes, as described herein, pursuant to Sections
112.317(1) and 112.324(4), Florida
Statutes, it is
the recommendation of the
Commission on Ethics that a
civil penalty be
imposed upon Respondent in the amount of $3,500.00 and a restitution
penalty be imposed upon him in the amount of $700.00.
ORDERED by the State of Florida Commission on Ethics meeting in public
session on Friday, October 25, 1991.
_________________________
Date Rendered
_________________________
Dean Bunch
Chairman
YOU ARE NOTIFIED THAT YOU ARE
ENTITLED, PURSUANT TO SECTION 120.68, FLORIDA STATUTES, TO JUDICIAL REVIEW OF
AN ORDER WHICH ADVERSELY AFFECTS YOU. REVIEW PROCEEDINGS ARE COMMENCED BY
FILING A NOTICE OF ADMINISTRATIVE APPEAL WITH THE APPROPRIATE DISTRICT COURT OF
APPEAL, AND ARE CONDUCTED IN ACCORDANCE WITH THE FLORIDA RULES OF APPELLATE
PROCEDURE. THE NOTICE OF ADMINISTRATIVE
APPEAL MUST BE FILED WITHIN 30 DAYS OF RENDITION OF THE ORDER TO BE REVIEWED.
cc: Mr. Harry Boreth and Mr. Lloyd
Glasser,
Attorneys for Respondent
Ms. Virlindia Doss, Commission Advocate
Mr. Isaac "Zeke" Feldman, complainant
Division of Administrative Hearings