STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

IN RE: ROBERT LEE THOMAS, )

) DOAH CASE NO. 96-3811EC

Respondent. )

________________________________)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Administrative Law Judge, Carolyn S. Holifield, held a formal hearing in this case on November 19, 1996, in MacClenny, Florida.

APPEARANCES

For Petitioner:   Eric S. Scott

Assistant Attorney General

Attorney General's Office

PL-01, The Capitol

Tallahassee, Florida 32399-1050

     For Respondent:  Robert Lee Thomas

Post Office Box 185

Glen St. Mary, Florida 32040

STATEMENT OF THE ISSUES

Whether the Respondent violated Sections 112.313(6), 112.313(7)(a), and 112.313(8), Florida Statutes (Supp. 1994), and, if so, what penalty should be imposed.

PRELIMINARY STATEMENT

On March 12, 1996, the Florida Commission on Ethics (Commission) entered an Order Finding Probable Cause to believe that the Respondent, Robert Lee Thomas (Respondent), while serving as Mayor of Glen St. Mary, violated Section 112.313(6), Florida Statutes (Supp. 1994), by using his position as Mayor of Glen St. Mary to personally benefit in a sale of property; Section 112.313(7)(a), Florida Statutes (Supp. 1994), by having a conflicting contractual relationship while Mayor of Glen St. Mary; and Section 112.313(8), Florida Statutes (Supp. 1994), by using information not available to members of the general public and gained by virtue of his position as Mayor for his personal gain. On August 6, 1996, the case was forwarded to the Division of Administrative Hearings for assignment of an administrative law judge to conduct a public hearing and to prepare a recommended order.

     Prior to the hearing, the parties stipulated to facts which were accepted and required no proof at hearing. At the hearing the Advocate for the Commission called three witnesses: Ed Harvey, Jimmy Robbins, and Winston Byrd. Respondent testified on his own behalf and called one witness, Martha L. Thomas. The parties stipulated to the introduction of Exhibits One through Six, all of which were admitted into evidence.

     The proceeding was recorded but not transcribed. At the conclusion of the hearing, the parties agreed to file proposed recommended orders ten days from the date of the hearing. The Advocate for the Commission timely filed a proposed recommended order. No posthearing proposal was filed by Respondent.

FINDINGS OF FACT

1.  Respondent, Robert Lee Thomas, served as Mayor of Glen St. Mary for approximately fourteen years prior to his resignation on June 6, 1995.

     2.  In early December 1994, Ed Harvey, vice-president of the Baker County Shrine Club, telephoned Respondent regarding certain real property owned by the Shrine Club. Mr. Harvey told Respondent that the Shrine Club wanted to sell the property for $20,000.

     3.  The Shrine Club had previously purchased the property from the City of Glen St. Mary. Pursuant to a provision in the deed conveying the property, the Shrine Club was obligated to give the city right of first refusal should it ever decide to sell the property. Consistent with this provision, Mr. Harvey contacted Respondent in his role as Mayor so that the matter could be presented to the Glen St. Mary City Council (Council). At the time Ed Harvey called Respondent regarding the sale of the Shrine Club property, information that the property was for sale was not available to the general public.

     4.  When initially contacted by Mr. Harvey regarding the sale of the Shrine Club property, Respondent was aware that the City of Glen St. Mary had a right of first refusal on the Shrine Club property.

     5.  During their telephone conversation, Respondent asked Mr. Harvey if the Shrine Club would sell the property to anyone other than the City of Glen St. Mary. Mr. Harvey told Respondent that the property was available to anyone for $20,000, subject to the City of Glen St. Mary's right of first refusal.

     6.  After learning that the Shrine Club property was for sale, Respondent contacted his cousin, C. Parker Thomas, pastor of the Midnight Cry Ministry Church. Respondent informed C. Parker Thomas of the availability of the Shrine Club property because he knew that his cousin was looking for property in the Glen St. Mary area. As a result of Respondent's communication with C. Parker Thomas, the church decided to purchase the Shrine Club property and use it as an outreach center.

     7.  On December 15, 1994, Respondent met with Jimmy Robbins, an elder of the Midnight Cry Ministry Church, and C. Parker Thomas at Respondent's home. At this meeting, Respondent accepted a $2,000 binder check dated, October 15, 1994, from Mr. Robbins on behalf of the Midnight Cry Ministry Church. The binder check was given to Respondent in exchange for his agreement to sell the Shrine Club property to the church for $30,000. Respondent asked Mr. Robbins to postdate the December 15, 1994, binder check to December 21, 1994. However, Mr. Robbins refused to postdate the check.

     8.  Respondent brought the issue of the Shrine Club property up before the Council at its December 20, 1994, meeting. Specifically, the issue brought to the Council by Respondent was whether the City should exercise its right of first refusal and purchase the Shrine Club property.

     9.  In presenting the issue to the Council for a vote, Respondent pointed out that the City of Glen St. Mary already had more land than it needed. Comments made by Respondent were intended to persuade the Council members not to purchase the Shrine Club property. After a brief discussion of the issue, the Council voted to decline to purchase the Shrine property.

     10.  At no time did Respondent inform the Council that he had an agreement to sell the Shrine Club property to the Midnight Cry Ministry Church for $10,000 more than the Shrine Club was asking for the property.

     11.  On December 23, 1994, three days after the Council voted to decline to exercise its right of first refusal, Respondent cashed the December 15, 1994, binder check from the Midnight Cry Ministry Church and used the money to purchase a $2,000 cashier's check as a binder on the Shrine Club property. The cashier's check was made payable to the Shrine Club with Respondent named as the remitter.

     12.  On or about December 24, 1994, Respondent delivered the $2,000 binder check made payable to the Shrine Club to Ed Harvey.

     13.  On February 23, 1995, Respondent purchased the Shrine Club property from the Shrine Club for $20,000. On that same date, Respondent sold the Shrine Club property to the Midnight Cry Ministry Church for $30,000.

     14.  Winston Byrd was a Glen St. Mary City Commissioner on December 20, 1994, and participated in the vote regarding the City's right of first refusal on the Shrine Club property. Mr. Byrd voted not to purchase the Shrine Club property, but would have voted differently if Respondent had disclosed that the Midnight Cry Ministry Church was willing to purchase the property for $30,000.

CONCLUSIONS OF LAW

15.  The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this proceeding. Section 120.57(1), Florida Statutes (1995).

     16.  Section 112.322, Florida Statutes (1995), and Rule 34-5.0015, Florida Administrative Code, authorize the Commission to conduct investigations and to make public reports on complaints concerning violations of Part III, Chapter 112, Florida Statutes, (the Code of Ethics for Public Officers and Employees).

     17.  The burden of proof, absent a statutory directive to the contrary, is on the party asserting the affirmative of the issue in the proceeding. Department of Transportation v. J.W.C. Co., Inc., 396 So.2d 778 (Fla. 1st DCA 1981); Balino v. Department of Health and Rehabilitative Services, 348 So.2d 349 (Fla. 1st DCA 1977). In this proceeding, the Commission, through its Advocate, is asserting the affirmative: that the Respondent violated Sections 112.313(6), 112.313(7)(a), and 112.313(8), Florida Statutes (Supp. 1994). Therefore, the Commission must establish by a preponderance of the evidence, the elements of Respondent's alleged violations.

     18.  It has been alleged that Respondent violated Section 112.313(6), Florida Statutes (Supp. 1994), by using his position as Mayor to personally benefit in the sale of property involving the City of Glen St. Mary and the Shrine Club. That section provides the following:

MISUSE OF PUBLIC POSITION.  No public officer, employee of an agency, or local government attorney 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.

19.  The term "corruptly" is defined by Section 112.312(9), Florida Statutes (1993), 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 proper performance of his public duties.

     20.  In order for it to be concluded that the Respondent violated Section 112.313(6), Florida Statutes (Supp. 1994), the Advocate must establish the following elements:

1.  The Respondent must have been a public officer or an employee of an agency.

2.  The Respondent must have used or attempted to use his official position or any other property or resources within his trust to secure a special privilege, benefit or exemption for himself or others.

3.  The Respondent must have acted corruptly, that is, with wrongful intent and for the purpose of benefiting himself or another person from some act or omission which is inconsistent with the proper performance of public duties.

     21.  The parties have stipulated that the Respondent, as Mayor of the City of Glen St. Mary, was subject to the requirements of Part III, Chapter 112, Florida Statutes. Therefore, this element is proven.

     22.  To establish a violation of Section 112.313(6), Florida Statutes (Supp. 1994), it must next be established that Respondent used his official position to secure a special privilege, benefit, or exemption for himself. This element has been proven by the Advocate.

     23.  The evidence at hearing clearly established that Respondent was contacted in his official position and informed by an officer of the Shrine Club that the organization planned to sell the Shrine Club property. Respondent was contacted solely because of the Shrine Club's obligation to give the City of Glen St. Mary the right of first refusal. To comply with this legal obligation, Mr. Harvey contacted Respondent so that, as Mayor, Respondent could present the matter to the city commissioners for a vote. In his official capacity, Respondent presented the issue to the Council at its December 20, 1994, meeting. During the presentation before the Council, Respondent's comments were designed to persuade the Council to decline to purchase the Shrine Club property and to take a position beneficial to him. In essence, Respondent's comments were a deliberate attempt to secure for himself a $10,000 profit from the sale of the Shrine Club property.

     24.  Finally, to establish a violation of Section 112.313 (6), Florida Statutes (Supp. 1994), it must be proven that Respondent acted corruptly, that is with wrongful intent and for the purpose of benefiting himself from an act which is inconsistent with the proper performance of his public duties. The Advocate has proven this element.

     25.  The evidence established that five days prior to presenting the Shrine Club property matter to the Council, Respondent accepted a $2,000 binder check from Midnight Cry Ministry Church. At this time, Respondent agreed to sell the church the Shrine Club property for $30,000. This was $10,000 more than the Shrine Club was asking for the property. After accepting the binder check and agreeing to sell the property, Respondent attempted to and, in fact, persuaded Council members to vote not to purchase the Shrine Club property. Respondent's actions were clearly motivated by his desire to secure a $10,000 profit for himself and were inconsistent with the proper performance of his public duties.

     26.  The Advocate for the Commission has established each of the requisite elements and, thus, has proven that Respondent violated Section 112.313(6), Florida Statutes (Supp. 1994).

     27.  It is alleged that Respondent violated Section 112.313(7)(a), Florida Statutes (Supp. 1994). That section provides:

CONFLICTING EMPLOYMENT OR CONTRACTUAL RELATIONSHIP.  (a)  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; nor shall an officer or employee of an agency have or hold any employment or contractual relationship that will create a continuing or frequently recurring conflict between his private interest and the performance of his public duties or that would impede the full and faithful discharge of his public duties.

28.  In order to prove that Respondent violated Section 112.313(7)(a), Florida Statutes (Supp. 1994), the Advocate must establish that:

1.  The Respondent was a public officer or employee of an agency.

2.  The Respondent held an employment or contractual relationship that:

(a)  created a continuing or frequently recurring conflict between Respondent's interest and the performance of his public duties; or

(b)  impeded the full and faithful discharge of Respondent's public duties.

     29.  With regard to the first element, the parties have stipulated that Respondent, as Mayor of Glen St. Mary, was subject to the requirements of Part III, Chapter 112., Florida Statutes. Accordingly, this element is proven.

     30.  The second element that must be established to prove a violation of Section 112.313(a), Florida Statutes (Supp. 1994), is that Respondent had a contractual relationship that impeded the full and faithful discharge of his public duties. In the instant case, Respondent created a contractual relationship with Midnight Cry Ministry Church on December 15, 1994, by accepting a $2,000 binder check on the Shrine Club property and agreeing to sell the property to the church for $30,000. Because Respondent stood to make a $10,000 profit under the agreement, the contractual relationship did, in fact, impede the full and faithful discharge of Respondent's public duties. This is evidenced by Respondent's efforts to persuade the Council to decline to exercise its right of first refusal.

     31.  Based on the evidence adduced at hearing, the Advocate has established that Respondent had a contractual relationship that impeded the full and faithful discharge of his duties as mayor. Having established the requisite elements, the Advocate has proven that Respondent violated Section 112.313(7)(a), Florida Statutes (Supp. 1994).

     32.  Finally, it is alleged that Respondent violated Section 112.313(8), Florida Statutes (Supp. 1994), which provides:

DISCLOSURE OR USE OF CERTAIN INFORMATION.  No public officer, employee of an agency, or local government attorney shall disclose or use information not available to members of the general public and gained by reason of his official position for his personal gain or benefit or for the personal gain or benefit of any other person or business entity.

     33.  In order to conclude that the Respondent violated Section 112.313(8), Florida Statutes (Supp. 1994), the Advocate must establish the following elements:

1.  The Respondent was a public officer or employee of an agency.

2.  The Respondent disclosed or used information which was:

     a)  not available to members of the general public

and

b)  gained by reason of the Respondent's official position.

3.  Such information was disclosed or used by Respondent with an intent to secure personal gain or benefit for himself or another person or business entity.

34.  As to the first element, the parties have stipulated that Respondent, as Mayor of Glen St. Mary, was subject to the requirements of Part III, Chapter 112, Florida Statutes. Therefore, this element is proven.

     35.  With respect to the second element, it is undisputed that information regarding the Shrine Club's intent to sell the subject property for $20,000 was used by the Respondent. It is likewise uncontroverted that this information was not available to members of the general public and was gained by Respondent only because he was Mayor of Glen St. Mary. Thus, the Advocate has proven this required element.

     36.  The third element which must be proven to establish a violation of Section 112.313(8), Florida Statutes (Supp. 1994), is that Respondent must have used the information with an intent to secure personal gain or benefit. The evidence at hearing clearly establishes that Respondent used the information he acquired as Mayor to arrange a real estate sales deal that netted him a $10,000 profit at the expense of the City of Glen St. Mary.

     37.  Having established each of the three requisite elements, the Advocate has proven that Respondent violated Section 112.313(8), Florida Statutes (Supp. 1994).

RECOMMENDATION

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

RECOMMENDED that a Final Order and Public Report be entered finding that Respondent, Robert Lee Thomas, violated Section 112.313(6), 112.313(7)(a) and 112.313(8), Florida Statutes (Supp. 1994); imposing a civil penalty of $1,000 per violation; ordering the restitution of the $10,000 profit Respondent made on the land deal to the City of Glen St. Mary; and issuing a public censure and reprimand.

DONE and ENTERED this 10th day of January, 1997, in Tallahassee, Florida.

CAROLYN S. HOLIFIELD

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(904) 488-9675 SUMCOM 278-9675

Fax Filing (904) 921-6847

Filed with the Clerk of the

Division of Administrative Hearings

this 10th day of January, 1997.

COPIES FURNISHED:

Eric S. Scott

Assistant Attorney General

Attorney General's Office

PL-01, The Capitol

Tallahassee, Florida 32399-1050

Mr. Robert Lee Thomas

Post Office Box 185

Glen St. Mary, Florida 32040

Bonnie Williams

Executive Director

Florida Commission on Ethics

2822 Remington Green Circle, Suite 101

Post Office Drawer 15709

Tallahassee, Florida 32317-5709

Phil Claypool

General Counsel

Florida Commission on Ethics

2822 Remington Green Circle, Suite 101

Post Office Drawer 15709

Tallahassee, Florida 32317-5709

Kerrie J. Stillman

Complaint Coordinator

Florida Commission on Ethics

Post Office Drawer 15709

Tallahassee, Florida 32317-5709

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15 days from the date of this recommended order. Any exceptions to this recommended order should be filed with the agency that will issue the final order in this case.