STATE OF FLORIDA
DIVISION OF
ADMINISTRATIVE HEARINGS
IN RE: )
)
ELI TOURGEMAN )
CASE
NO. 93-5183EC
___________________________________)
RECOMMENDED ORDER
Pursuant to notice, the Division of Administrative Hearings, by its duly
designated Hearing Officer, Susan B. Kirkland, held a formal hearing in this
case on December 29, 1993, in Miami, Florida.
APPEARANCES
For the Advocate: Stuart F.
Wilson-Patton, Attorney
Office of the Attorney General
The Capitol, PL-01
Tallahassee, Florida 32399-1050
For Respondent: Richard
Waserstein, Attorney
913
Normandy Drive
Miami Beach, Florida 33141
STATEMENT OF THE ISSUES
Whether Respondent violated Section 112.313(6), Florida Statutes, and,
if so, what penalty should be imposed.
PRELIMINARY STATEMENT
On March 11, 1992, the Florida Commission on Ethics (Commission) issued
an Order Finding Probable Cause, that Respondent, Eli Tourgeman, violated
Section 112.313(6), Florida Statutes, by influencing or attempting to influence
the town of Surfside's recreation department employees to award summer camp
scholarships to his nephews. On
September 3, 1993, the Commission requested that the Division of Administrative
Hearings conduct a public hearing. The
proceeding was scheduled for hearing on December 29, 1993.
The Advocate for the Commission called Jeffrey Naftal, Adele Weisberg,
and Robert Silvers as witnesses. The
Advocate's exhibits A-D were entered into evidence. Respondent called Peter Cohen, Marcella Tourgeman, and Fanny
Tourgeman Elias as witnesses.
The transcript was filed on February 14, 1994. At the hearing, the parties agreed to file proposed recommended
orders within ten days of the filing of the transcript. The Advocate requested an extension of time
to file the proposed recommended orders, which request was granted, extending
the time to file proposed recommended orders to March 18, 1994. The parties timely filed their proposed
recommended orders. The parties'
proposed findings of fact are addressed in the Appendix to this Recommended
Order.
FINDINGS OF FACT
1. Respondent, Eli Tourgeman
(Tourgeman), was a city council member for the town of Surfside, Florida,
(Surfside) from 1986 to 1988. He served
as vice-mayor of Surfside for two years beginning in 1988. In 1990 he became mayor of Surfside and
served for two years.
2. Tourgeman was a member of the
Northshore/Miami Beach Kiwanis Club (Kiwanis Club) for many years, including
1987 through 1990.
3. Tourgeman held a full-time
position with Glendale Federal Bank during 1986 through 1992.
4. Surfside sponsors a children's summer camp each year. The camp is open to resident and nonresident
children of Surfside. Nonresident
children are charged a higher registration fee than Surfside residents.
5. Beginning in approximately
1983, prior to the time Tourgeman became a member of the Kiwanis Club, the
Kiwanis Club helped sponsor the summer camp by giving $350 to Surfside each
year. The $350 was to be used to
provide two $100 camp scholarships to two needy children with the remainder of
the money to be used to pay for a field day barbecue and trophies for the
campers. Each year the summer camp
project would be presented to the board of the Kiwanis Club for a vote on
whether to fund the project.
6. The Kiwanis Club had no
criteria for awarding the scholarships except that the recipients must be in
financial need. The determination of
who would receive the scholarships was left to Surfside. The Kiwanis Club did not require that
Surfside report each year how the funds were used for the summer camp program,
or who, if anyone, was awarded a scholarship.
7. At all times pertinent to
this proceeding Adele Weisberg was the director for the Department of
Recreation for Surfside. The Town
Manager had supervisor authority over Ms. Weisberg, including the authority to
hire and fire her. The Town Commission
could dismiss the Town Manager for cause.
Neither the city council members, the vice-mayor or the mayor had direct
authority over Ms. Weisberg.
8. Among Ms. Weisberg's duties
was the administration of the summer camp program and the determination of who
would receive the Kiwanis Club scholarships.
She had no guidelines in determining who would be awarded a scholarship
except that the child be in financial need.
9. Neither Surfside nor the
Kiwanis Club advertised the availability of the scholarships. From 1983 until 1987, Surfside did not
receive any applications for the scholarships and thus did not award any
scholarships for the summer camp, but used the funds for the summer camp,
including the field day and the purchase of trophies.
10. Tourgeman had two nephews,
Abraham Tourgeman and Sean Young, who lived each summer with Tourgeman's mother
in Surfside. During the remainder of
the year, the nephews lived in Miami with their mothers, Tourgeman's
sisters. Abraham and Sean were
considered residents for the purpose of the summer camp enrollment because they
resided with their grandmother during the summer months.
11. In 1987, Abraham Tourgeman's
mother wanted to send him to summer camp but could not afford to do so. Tourgeman advised his sister that the
Kiwanis Club provided two $100 scholarships each year. He agreed to call the recreation department
and inquire about the summer camp scholarships. Tourgeman called Ms. Weisberg and told her that his nephew wanted
to go to summer camp but was in financial need and that he wanted his nephew to
receive a Kiwanis Club scholarship. Ms.
Weisberg viewed the request as that of a Kiwanis Club member rather than a
public officer. Ms. Weisberg told him
to tell his sister, Fanny Tourgeman Elias, to call her. Ms. Elias called Ms. Weisberg, who advised
Ms. Elias that she would have to come over that day to register her son or he
would not be able to get into summer camp.
Ms. Elias went the same day and filled out the application form.
12. Both Sean Young and Abraham
Tourgeman met the financial need criterion and qualified for a scholarship.
13. For the summer camp session
of 1987, Abraham Tourgeman received a $100 Kiwanis Club scholarship. Sean Young also attended summer camp in
1987, but did not receive a scholarship.
14. In 1988, the Kiwanis Club
again funded the summer camp program.
Tourgeman personally delivered the check to Ms. Weisberg. Tourgeman advised Ms. Weisberg that he
wanted his nephew to receive a Kiwanis Club scholarship. Ms. Weisberg viewed the request as a request
from a Kiwanis Club member rather than a public officer. Sean Young received a $100 Kiwanis Club
scholarship to attend summer camp in 1988.
15. In 1989, the Kiwanis Club
again funded the summer camp program.
Again Tourgeman advised Ms. Weisberg that he wanted his nephew to have a
Kiwanis Club scholarship. Ms. Weisberg
viewed the request as that of a Kiwanis Club member rather than a public
officer. Abraham Tourgeman received a
$100 Kiwanis Club scholarship to attend summer camp in 1989.
16. In 1990, Tourgeman
recommended to the Kiwanis Club board that the summer camp funding be
renewed. The board voted approval of the
funding in June, 1990.
17. In 1990, Sean Young was
unable to get into summer camp because he waited too late to register and the
camp was filled. Abraham Tourgeman was either too late in applying for summer
camp or was too old to be admitted into the program; thus he was unable to be
attend summer camp in 1990.
18. Tourgeman called Ms. Weisberg
and told her that Abraham Tourgeman would agree to volunteer as a counselor for
the 1990 summer camp session, but Ms. Wiesberg advised Tourgeman that she
already had enough volunteers.
19. Ms. Weisberg viewed
Tourgeman as the contact person with the Kiwanis Club for the summer camp
program. In 1990 Ms. Weisberg had been
advised that the funding had been approved and she called Tourgeman to inquire
whether they would get the check from the Kiwanis Club. Tourgeman advised her that unless his nephews
were allowed to go to summer camp, the check would not be forthcoming. Ms. Weisburg viewed Tourgeman's threat as
that of a Kiwanis Club member rather than a public officer.
20. The Recreation Department
prepared flyers for the annual summer camp field day, but did not include on
the announcement, as it had in previous years, that the Kiwanis Club was
helping to sponsor the festivities.
21. Ron Silvers, who was
secretary for the Kiwanis Club in 1990, learned that the Kiwanis Club was not
being included as a sponsor for the 1990 summer camp and he called Ms.
Wiesberg. She advised him of the
conversation with Tourgeman.
22. On July 24, 1990, the
Kiwanis Club check was delivered to Surfside for the 1990 summer camp program.
CONCLUSIONS OF LAW
23. The Division of
Administrative Hearings has jurisdiction over the parties to and the subject
matter of this proceeding. Section
120.57(1), Florida Statutes. Section
112.322, Florida Statutes, and Rule 34-5.0015, Florida Administrative Code,
authorize the Florida Commission on Ethics (Commission) to conduct
investigations and make public reports on complaints concerning violations of
Part III, Chapter 112, Florida Statutes (the Code of Ethic for Public Officers
and Employees).
24. The burden of proof, absent
a statutory directive to the contrary, is on the party asserting the
affirmative of the issue of the proceeding.
Department of Transportation v. J.W.C. Co. Inc., 396 So.2d 778 (Fla. 1st
DCA 1981) and Balino v. Department of Health and Rehabilitative Services, 348
So.2d 349 (Fla. 1st DCA 1977). In this
proceeding it is the Commission, through the Advocate, that is asserting the
affirmative: that Tourgeman violated
Section 112.313(6), Florida Statutes.
Therefore the burden of proving the elements of Tourgeman's alleged
violations is on the Commission.
25. Section 112.313(6), Florida
Statutes provides:
MISUSE OF PUBLIC OFFICE--No public officer or
employee of an agency shall corruptly use or
attempt to use his official position or any
property or resource which may be within his
trust, or perform his official duties, to
secure a special privilege, benefit, or
exemption for himself or others. This
section shall not be construed to conflict
with s. 104.31.
26. For purposes of Section
112.313(6), 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 the proper performance of
his duties.
27. In order for it to be
concluded that Tourgeman violated Section 112.313(6), Florida Statutes, the
following elements must be proven by a preponderance of the evidence:
1. Tourgeman
was a public officer or
employee of an agency.
2. Tourgeman
used or attempted to use his
official position or property or resource
within his trust or performed his official
duties.
3. Tourgeman's
actions were done with an
intent to secure a special privilege,
benefit, or exemption for himself or others;
and
4. Tourgeman's
actions were done "corruptly"
that is,
(a) done with a wrongful intent, and
(b) done for the purpose of benefiting
from some act or omission which was
inconsistent with the proper performance of
public duties.
28. Tourgeman was a public officer and was
subject to the Florida Code of Ethics for Public Officers and Employees, Part
III of Chapter 112, Florida Statutes.
He served consecutive two-year terms as a council member, as vice-mayor
and as mayor of Surfside from 1986 through 1992.
29. The evidence presented
failed to establish that Tourgeman used or attempted to use his position as
city council member, vice-mayor or mayor of Surfside to gain a special benefit
for himself or others.
30. The Advocate cites In re
Lancaster, 5 F.A.L.R. 1567-A, 1571-A (1983), for the proposition that it could
reasonably be inferred that Tourgeman had some influence in decisions affecting
Ms. Weisberg's employment and in such a relationship there is an implicit understanding
on Ms. Weisberg's part that failure to find favor with the superior for any
reason might constitute a threat to her employment. Such argument is not persuasive.
In Lancaster, the respondent was a supervisor of elections who had the
authority to hire and fire deputy supervisors.
He made sexual advances to two deputy supervisors and another employee
whom he had hired. There is no evidence
that Tourgeman had the authority to fire or discipline Ms. Weisberg. In fact, the evidence is to the contrary. Ms. Weisberg did not feel that Mr. Tourgeman was requesting the
scholarships in his capacity as a public officer but that the request, that the
scholarship be awarded to his nephew, and the threat to withhold the Kiwanis
Club funds was done in his capacity as a member of the Kiwanis Club.
31. Tourgeman did corruptly use
his position as a member of the Kiwanis Club but not as a public official to
attempt to gain special benefits for his nephews, i.e., summer camp
scholarships. While this may not be
morally right, it is not a violation of Section 112.313(6), Florida Statutes.
RECOMMENDATION
Based on the foregoing Findings of Fact and Conclusions of Law, it is
RECOMMENDED that a final order and public report be entered dismissing
the Complaint.
DONE AND ENTERED this 29th day of April, 1994, in Tallahassee, Leon
County, Florida.
___________________________________
SUSAN B. KIRKLAND
Hearing Officer
Division of Administrative Hearings
The DeSoto Building
1230 Apalachee Parkway
Tallahassee, Florida 32399-1550
(904) 488-9675
Filed with the Clerk of the
Division of Administrative
Hearings this 29th day of
April, 1994.
APPENDIX TO RECOMMENDED
ORDER, CASE NO. 93-5183EC
To comply with the requirements of Section 120.59(2), Florida Statutes
(1993), the following rulings are made on the parties' proposed findings of
fact:
Advocate's Proposed Findings of Fact.
1.
Paragraph 1: The first three
lines are accepted in
substance. The last two lines
are rejected as
constituting a conclusion of law.
2.
Paragraph 2: Accepted in
substance.
3.
Paragraph 3: The last sentence
is rejected as
unnecessary. The remainder of
the paragraph is accepted
in substance.
4.
Paragraph 4: The first two
sentences are accepted in
substance. The remainder is
rejected as subordinate to
the facts actually found.
5.
Paragraph 5: The first, fifth,
sixth and seventh
sentences are accepted in substance.
The second, third,
and fourth sentences are rejected as unnecessary.
6.
Paragraph 6: Rejected as
unnecessary.
7.
Paragraphs 7-9: Accepted in
substance.
8.
Paragraph 10: The third sentence
is rejected as
unnecessary. The first and
second sentences are
accepted in substance to the extent that Tourgeman was
involved in the summer camp program as a member of the
Kiwanis Club. The last sentence
is rejected as not
supported by the greater weight of the evidence as it
relates to 1987 and 1989, but accepted as to 1988.
9.
Paragraph 11: Accepted in substance.
10. Paragraph 12: The first and second sentences are
rejected as subordinate to the facts actually found.
The third sentence is accepted in substance.
11. Paragraph 13: The first and last sentences are
accepted in substance. The
second sentence is rejected
as subordinate to the facts actually found.
12. Paragraph 14: The first and last sentences are
accepted in substance. The
second sentence is rejected
as not supported by the greater weight of the evidence
to the extent that Tourgeman called back, otherwise, it
is accepted in substance. The
last sentence is
accepted in substance.
13. Paragraph 15: Accepted in substance.
14. Paragraphs 16-17: Rejected as subordinate to the facts
actually found.
Respondent's Proposed Findings of
Fact. (Amended Recommended Order)
1.
Paragraphs 1-3: Rejected as not
supported by the
greater weight of the evidence presented at hearing.
2.
Paragraphs 4-10: Accepted in
substance.
3.
Paragraph 11: The last sentence
is rejected as
unnecessary. The remainder of
the paragraph is
accepted in substance. (It
should be noted that
Respondent has cited to the deposition of Adele
Weisberg. Ms. Weisberg's
deposition is not in
evidence.)
4.
Paragraph 12: Rejected as
subordinate to the facts
actually found.
5.
Paragraph 13: Accepted in
substance.
6.
Paragraph 14: Rejected as
unnecessary and subordinate
to the facts actually found.
7.
Paragraph 15-17: Accepted in
substance.
8.
Paragraph 18: Rejected as
unnecessary and subordinate
to the facts actually found.
9.
Paragraph 19: Accepted in
substance.
10. Paragraphs 20-21: Rejected as mere recitation of
testimony.
11. Paragraph 22: The first sentence is accepted in
substance. The second sentence
is rejected as
argument. The third sentence is
rejected as not
supported by the greater weight of the evidence. The
fourth sentence is accepted in substance.
12. Paragraph 23: Rejected as constituting argument.
13. Paragraph 22 (second) Rejected as constituting
argument.
14. Paragraph 23 (second) Rejected as constituting a
conclusion of law.
COPIES FURNISHED:
Richard Waserstein, Esquire
913 Normandy Drive
Miami, Florida 33241
Stuart F. Wilson-Patton, Esquire
Department of Legal Affairs
The Capitol, PL-01
Tallahassee, Florida 32399-1050
Bonnie Williams
Executive Director
Post Office Drawer 15709
Tallahassee, Florida 32317-5709
Phil Claypool, Esquire
General Counsel
Ethics Commission
Post Office Box 15709
Tallahassee, Florida 32317-5709
NOTICE OF RIGHT TO
SUBMIT EXCEPTIONS
All parties have the right to submit
written exceptions to this recommended order.
All agencies allow each party at least ten days in which to submit
written exceptions. Some agencies allow
a larger period within which to submit written exceptions. You should contact the agency that will
issue the final order in this case concerning agency rules on the deadline for
filing exceptions to this recommended order.
Any exceptions to this recommended order should be filed with the agency
that will issue the final order in this case.