92-30 Recommended Order, In re T. BUTLER WALKER

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

In re T. BUTLER WALKER, )

)

Respondent. ) Case No. 93-4270EC

________________________)

RECOMMENDED ORDER

Pursuant to written notice, a formal hearing was held in this case on November 29, 1993, at Tallahassee, Florida, before Susan B. Kirkland, a duly designated Hearing Officer of the Division of Administrative Hearings.

APPEARANCES

For the Advocate: Stuart F. Wilson-Patton

Assistant Attorney General

Department of Legal Affairs

The Capitol, PL-01

Tallahassee, Florida 32399-1050

For Respondent: Mark S. Levine

Attorney at Law

245 East Virginia Street

Tallahassee, Florida 32301

STATEMENT OF THE ISSUES

Whether Respondent violated Sections 112.313(7)(a) and 112.3143(3), Florida Statutes, and, if so, what penalty should be imposed.

PRELIMINARY STATEMENT

On or about March 16, 1992, a Complaint against Respondent, T. Butler Walker, was filed with the Florida Commission on Ethics (Commission). Based on a review of the Complaint, the Commission issued a Determination of Investigative Jurisdiction and Order to Investigate on May 12, 1992, ordering the staff of the Commission to conduct a preliminary investigation into whether Mr. Walker violated Sections 112.313(6), 112.313(7)(a), and 112.3143(3), Florida Statutes.

Following the Commission's investigation of the allegations against Mr. Walker, a Report of Investigation was released on August 26, 1992. Based on the Complaint and the Report of Investigation, the Advocate issued an Advocate's Recommendation on September 14, 1992, recommending that there was probable cause to believe that Respondent violated Sections 112.3143(3) and 112.313(7)(a), Florida Statutes. In addition, the Advocate recommended that there was no probable cause for finding that Mr. Walker violated Section 112.313(6), Florida Statutes.

On October 20, 1992, the Commission entered an Order Finding Probable Cause, agreeing with the Advocate's recommendation. The Commission ordered that a public hearing be conducted.

By letter dated July 30, 1993, the Commission referred the matter to the Division of Administrative Hearings for public hearing.

Prior to the formal hearing the parties filed a Joint Prehearing Stipulation containing stipulated findings of fact. Those facts have been accepted in this Recommended Order.

The deposition of Respondent along with the deposition exhibits 1-3 were entered into evidence as Joint Exhibit No. 1. The Advocate called no witnesses. Respondent testified in his own behalf.

A transcript of the hearing was ordered. The transcript was filed on December 20, 1993, and the Advocate filed a proposed recommended order on December 28, 1993. Respondent did not file a proposed recommended order. The Advocate's proposed findings of fact are ruled on in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. At all times material to this proceeding, the Respondent, T. Butler Walker, served as a member of the Jefferson County Commission and was subject to the Florida Code of Ethics for Public Officers and Employees, Part III of Chapter 112, Florida Statutes.

2. The Respondent was charged by sworn Complaint with violations of Sections 112.313(6), 112.313(7)(a), and 112.3143(3), Florida Statutes. The Florida Commission on Ethics, after preliminary investigation, found there was probable cause to believe that the Respondent violated Section 112.3143(3), Florida Statutes, by voting to pave the road which runs in front of his home, and Section 112.313(7)(a), Florida Statutes, by having a contractual relationship with a company, (White Construction Company) doing business with his agency.

3. The Respondent has served on the Jefferson County Commission since 1953. His home is located on Peter Brown Lane and he owns approximately 653.5 acres of land along and contiguous to the road, either individually or jointly with his wife. The property outlined in yellow on Exhibit 1 to the Respondent's deposition is the property along or contiguous to Peter Brown Lane. Both of his sons own homes located on Peter Brown Lane, and they own approximately 184 acres of land in the same vicinity. Most of the land which the Respondent and his relatives own along the road is used for farming and raising cattle. In addition, 9 of the 13 residences on the road belong to the Respondent's relatives.

4. In 1987, Peter Brown Lane was a County-maintained dirt road about 4.5 miles long. Peter Brown Lane connects County Road 259 with the Thomas City/Walker Springs Road. The road is used by logging trucks from the St. Joe Paper Company. The St. Joe Paper company owns more land along Peter Brown Lane than the Respondent or his relatives.

5. The Respondent pays taxes on a portion of Peter Brown Lane that crosses his property. He has never deeded a right of way to the county for that portion of land which is crossed by the road. Nevertheless, the Respondent does not claim ownership of any portion of Peter Brown Lane. It is his understanding that once a county maintains a road for four years or more, then the county is deemed to own it even though the landowner may still be responsible for paying taxes on it.

6. The late Joe Sullivan, former Jefferson County Road Superintendent, suggested to the Respondent that Peter Brown Lane be paved. Mr. Sullivan believed that the County could save money on the cost of road maintenance by paving Peter Brown Lane.

7. At the Board of Commissioners meeting in August of 1987, the Respondent moved that Peter Brown Lane be paved for a distance of only 3.4 miles from County Road 259 toward the Thomas City/Walker Springs Road. The paving runs in front of all 13 residences on the road. The paving ends in front of the last residence on Peter Brown Lane which belongs to the Respondent's nephew, Kevin. The Respondent did not recommend paving the remaining 1.1 miles because maintenance of it had historically been very minimal due to the nature of the terrain of this section of the road.

8. The Respondent voted for the measure, and the motion passed. The Respondent did not disclose his land ownership along Peter Brown Lane or that the road ran in front of his home. Nor did he disclose the fact that 9 of the 13 residences along the road belong to his relatives. The Respondent did not abstain from voting, and he did not file a memorandum of voting conflict after the vote.

9. Various persons and businesses benefited from the paving of the road because Peter Brown Lane connected two other roads. The Respondent and his relatives also benefited because they lived along the road and regularly used it.

10. After submission of bids, the County hired White Construction Company to pave Peter Brown Lane. On September 16, 1987, the Respondent voted to approve the award of the contract for paving to White Construction Company.

11. The Respondent independently hired White Construction Company to pave his driveway and his sons' driveways. White Construction Company agreed to pave the Respondent's driveway at the same cost it was charging the county to pave Peter Brown Lane. The Respondent paid White Construction Company $15,744.73 for materials that it sold him. The Respondent spent a total of $20,338.43 to have the private paving work done. Since the paving of Peter Brown Lane, the Respondent has paid higher property taxes on his residence.

12. Companies performing paving work are often hired by persons who live along rural roads to pave their driveways. In many cases, it would not be cost effective for a company to take its equipment out to pave a driveway if it did not already have paving work in the same vicinity. The Respondent believes that he was able to save money by using White Construction Company to pave his driveway, because White's equipment and workers were already on site.

13. Prior to being paved Peter Brown Lane would become slick and wash out when it rained, resulting in vehicles becoming stuck in the mud and the ditches. Sometimes the road would become so washed out that the traffic was limited to one lane. Mr. Walker benefited from the paving of Peter Brown Lane. The paving provided easier access to his property, including his residence and reduced the wear and tear on his vehicles.

CONCLUSIONS OF LAW

14. The Division of Administrative Hearings has jurisdiction of 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 Commission to conduct investigations and make public reports on complaints concerning violations of Part III, Chapter 112, Florida Statutes (the "Code of Ethics for Public Officers and Employees").

15. 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 Mr. Walker violated Sections 112.3143(3) and 112.313(7)(a), Florida Statutes (1987). Therefore the burden of proving the elements of Mr. Walker's alleged violations is on the Commission.

16. The Commission has ruled that the standard of proof in cases before it require that the Commission prove its charges by a preponderance of the evidence. In Re Michael Langton, 14 F.A.L.R. 4175 (1992) and In Re Leo C. Nichols, 11 F.A.L.R. 5234 (1989).

17. Section 112.3143(3), Florida Statutes (1987) provides in pertinent part:

No county, municipal, or other local public

officer shall vote in his official capacity

upon any measure which inures to his special

private gain or shall knowingly vote in his

official capacity upon any measure which

inures to the special gain of any principal,

other than an agency as defined in s.

112.312(2), by whom he is retained. Such

public officer shall, prior to the vote being

taken, publicly state to the assembly the

nature of his interest in the matter from

which he is abstaining from voting and,

within 15 days after the vote occurs,

disclose the nature of his interest as a

public record in a memorandum filed with the

person responsible for recording the minutes

of the meeting, who shall incorporate the

memorandum in the minutes. . . .

18. In order for it to be concluded that Mr. Walker violated Section 112.3143(3), Florida Statutes (1987), the following elements must be presented:

1. Mr. Walker must have been a county,

municipal, or other local public officer.

2. Mr. Walker must have:

(a) Voted on a measure which inured to his

special private gain or knowingly voted in

his official capacity upon any measure which

inured to the special gain of any principal

other than an agency as defined in s.

112.312(2) by whom he was retained; and/or

(b) Failed to publicly announce to the

assembly the nature of his interest in the

matter being voted on prior to the vote being

taken; and/or

occurred to disclose the nature of his

interest as a public record in a memorandum

filed with the person responsible for

recording the minutes of the meetings.

19. The parties stipulated that Mr. Walker was a County Commissioner for Jefferson County and that he was subject to Part III of Chapter 112, Florida Statutes; that at a Board of County Commissioners meeting in August, 1987, Mr. Walker voted to pave a portion of a road which was located along land that he owned and ran in front of his house; that he benefited from the paving of the road; that he failed to publicly announce at the meeting prior to the vote of his interest in the road; and that he failed to file a memorandum with the person responsible for taking the minutes of the meeting disclosing his interest in the road. Thus, the issue to be resolved is whether the paving of Peter Brown Lane inured to Mr. Walker's special private gain.

20. In CEO 76-24, the Commission on Ethics discussed the gain or loss test in determining whether there is a conflict of interest.

The factor which creates a duty to file a

memorandum of voting conflict is not the

nature of the official's vote, i.e., for or

against the measure, but is whether the

interest which he holds is such that he (or

his client) would stand to gain or lose as a

direct result of the outcome of the board's

decision.

Mr. Walker would stand to gain from the result of the vote on whether to pave Peter Brown Lane. He owns property which abuts Peter Brown Lane. The paving of the road would directly benefit Mr. Walker by providing better access to his property, particularly in this case since the road would become slick and wash out when it rained, resulting at times in traffic being restricted to one lane. Such benefit is neither speculative nor remote.

21. In CEO 90-71 and 77-129, the Commission discussed the analysis used to determine whether there is a special private gain, using the size of class test.

The determination of whether a measure inures

to the special gain of an official turns in

part on the size of the class of persons who

stand to benefit from the measure. Where a

class is large, a special gain will result

only if there are circumstances unique to the

official which would enable him to gain more

than the other members of the class.

However, where the class of persons

benefiting is extremely low, the possibility

of gain is much greater.

The class involved in this case is very small. There are 13 residences on the portion Peter Brown Lane which was paved. One of those is Mr. Walker's. Mr. Walker, individually or jointly with his wife, owns land on several different locations along the paved portion of Peter Brown Lane. Based on a review of deposition exhibit 1 contained in Joint Exhibit 1, it appears that Mr. Walker owns the majority of the land abutting the west side of the paved portion of Peter Brown Lane and St. Joe Paper Company owns the majority of the land abutting the east side of the road. The parties stipulated that Mr. Walker owns approximately 653.5 acres of property along or contiguous to Peter Brown Lane. Mr. Walker's property ownership along Peter Brown Lane was sufficiently large enough such that any gain derived from the paving of the road would be "special" within the meaning of Section 112.3143(3), Florida Statutes (1987).

22. Mr. Walker violated Section 112.3143(3) by voting on the measure to pave Peter Brown Lane, by failing to disclose at the County Commission meeting prior to the vote the nature of his interest in road, and by failing to file a memorandum within fifteen days after the vote was taken disclosing the nature of his interest in the road.

23. Section 112.313(7), Florida Statutes (1987) provides in pertinent part:

No public officer or employee of an agency

shall have or hold any employment or

contractual relationship with any business

entity or any agency which is subject to the

regulation of, or is doing business with, an

agency of which he is an officer or employee,

excluding those organizations and their

officers who, when acting in their official

capacity, enter into or negotiate a

collective bargaining contract with the state

or any municipality, county, or other

political subdivision of the state . . .

24. In order for it to be concluded that Mr. Walker violated Section 112.313(7), Florida Statutes (1987), the following elements must be presented:

1. Mr. Walker must be a public officer or

employee of an agency;

2. Mr. Walker must have been employed by or

held a contractual relationship with a

business entity or agency; and

3. The business entity or agency must have

been subject to the regulation of or doing

business with the agency of which Mr. Walker

was an officer or employee.

25. The parties stipulated that Mr. Walker was a County Commissioner for Jefferson County and was subject to Part III of Chapter 112, Florida Statutes. Additionally, the parties stipulated that he contracted with White Construction Company to pave his driveway during the time that White Construction Company was contracting with Jefferson County to pave Peter Brown Lane. Thus, all the elements of a violation of Section 113.313(7), Florida Statutes (1987) have been proven. See CEO 82-54.

26. Section 112.317, Florida Statutes, provides penalties which may be imposed for a violation of the Code of Ethics for Public Officers and Employees. Among the penalties, is a civil penalty not to exceed $5,000. The Advocate, during closing argument, recommended that a civil penalty of $2,000 be assessed against Mr. Walker, representing a $500 penalty for violation of Section 112.313(7)(a) and a $1500 penalty for violation of Section 112.3143. Such a recommendation is reasonable and should be imposed on Mr. Walker.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is

RECOMMENDED that the Commission on Ethics enter a Final Order and Public Report finding that the Respondent, T. Butler Walker violated Sections 112.313(7)(a) and 112.3143(3), Florida Statutes (1987) and that Mr. Walker be required to pay a civil penalty of $2,000.

DONE AND ENTERED this 19th day of January, 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 19th day of January, 1994.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-4270EC

To comply with the requirements of Section 120.59(2), Fla. Stat. (1993), the following rulings are made on the Advocate's proposed findings of fact:

Advocate's Proposed Findings of Fact.

1. Paragraphs 1-12: Accepted.

2. Paragraphs 12-15: Rejected as constituting conclusions

of law.

3. Paragraphs 16-17: Rejected as unnecessary.

4. Paragraph 18: The first, third and fourth sentences are

accepted in substance. The second, fifth, and sixth

sentences are rejected as not supported by the greater

weight of the evidence.

COPIES FURNISHED:

Mark S. Levine, Attorney

245 East Virginia Street

Tallahassee, Florida 32301

Stuart F. Wilson-Patton

Assistant Attorney General

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

General Counsel

Post Office Drawer 15709

Tallahassee, Florida 32317-5709

NOTICE OF RIGHTS 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.