95-132 Recommended Order, In re JOHN POLLET

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

IN RE: JOHN POLLET, CASE NO. 96-2925EC

Respondent.

_______________________________/

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case on August 30, 1996, in Kissimmee, Florida, before Carolyn S. Holifield, Administrative Law Judge, Division of Administrative Hearings.

APPEARANCES

For Advocate: Eric S. Scott, Esquire

Office of the Attorney General

The Capitol, Plaza Level 01

Tallahassee, Florida 32399-1050

For Respondent: Mark Herron, Esquire

216 South Monroe Street

Tallahassee, Florida 32301

STATEMENT OF THE ISSUE

Whether Respondent violated Section 112.3148(3), Florida Statutes, by committing the acts alleged in the Order Finding Probable Cause and, if so, what penalty is appropriate.

PRELIMINARY STATEMENT

On June 4, 1996, the State of Florida Commission on Ethics (Commission) entered an Order Finding Probable Cause to believe that Respondent, John Pollet, while serving as mayor of the City of Kissimmee, violated Section 112.3148(3), Florida Statutes, by soliciting tickets to an Orlando Magic basketball game from the Municipal Marketing Manager of Waste Management, Inc., and by soliciting golf tournament passes from an officer of an environmental engineering firm doing business with the City of Kissimmee. By letter dated June 18, 1996, the case was forwarded to the Division of Administrative Hearings for assignment of an Administrative Law Judge.

At the final hearing, the Advocate for the Commission called two witnesses: George Geletko and Charles Voss. Respondent, John Pollet, testified on his own behalf. No exhibits were offered into evidence. The parties stipulated to facts stated in Section E of the Joint Prehearing Stipulation.

The parties agreed to file proposed recommended orders ten days from the date the transcript was filed. The transcript was filed on September 19, 1996. Both parties timely filed proposed recommended orders.

FINDINGS OF FACT

1. Respondent, John Pollet (Pollet), served continuously as Mayor of Kissimmee from November 1, 1991, until he was suspended in 1995.

2. As Mayor, Pollet was a voting member of the City Commission and signed contracts the city entered.

3. At all times relevant to the instant case, George Geletko was employed as the Municipal Marketing Manager with Waste Management, Inc. Mr. Geletko's primary responsibility was to make sure that contracts between Waste Management, Inc., and its municipal customers were properly administered.

4. Waste Management, Inc., had a contract with the City of Kissimmee to provide waste disposal services that was scheduled to expire in 1994. However, on September 6, 1994, the City of Kissimmee renewed its contract with Waste Management, Inc. Mr. Geletko was responsible for administering Waste Management's contract with the City of Kissimmee and was the contact person between Waste Management, Inc., and the City of Kissimmee.

5. As the Municipal Marketing Manager for Waste Management, Inc., Mr. Geletko sought to influence or encourage the Kissimmee City Commission and Pollet to do business with his company. In order to accomplish this, Mr. Geletko, in his position with Waste Management, Inc., took actions that directly or indirectly furthered or communicated his intention to influence or encourage the Kissimmee City Commission and Pollet to do business with Waste Management, Inc.

6. In the spring of 1994, during a telephone conversation, Pollet asked Mr. Geletko if Waste Management, Inc., had any tickets to an Orlando Magic basketball game. Mr. Geletko did not respond directly to Pollet's inquiry, but stated that "whatever we did, we would have to be in compliance with all ordinances and the State Code of Ethics." Pollet told Mr. Geletko that he would get back with him. However, no further inquiry regarding Orlando Magic tickets was made by Pollet to Mr. Geletko.

7. At the time Pollet asked about Orlando Magic basketball tickets, he believed Mr. Geletko had taken former City Commissioner Richard Herring to a Magic game at some point prior to his inquiry.

8. Pollet testified that the inquiry regarding Orlando Magic basketball tickets was made based on personal political considerations involving former City Commissioner Herring, who was sometimes an ally and sometimes a foe of Respondent in matters relating to City politics. However, Pollet gave no such explanation to Mr. Geletko during their conversation involving Orlando Magic basketball tickets.

9. Based on Pollet's inquiry, Mr. Geletko felt that Pollet was asking him for tickets to the Orlando Magic game.

10. Mr. Geletko, as a representative of Waste Management, Inc., gave gifts, including golf games and meals, to Pollet both before and after Respondent asked him about the Orlando Magic Tickets.

11. Pollet's approach to Mr. Geletko was a solicitation for tickets.

12. At all times relevant to the instant case, Charles Voss was a vice president with Camp, Dresser, and McKee, an environmental engineering firm.

13. Camp, Dresser, and McKee had two contracts with the City of Kissimmee to provide engineering services. The City of Kissimmee and Camp, Dresser, and McKee entered into one such contract on November 2, 1993.

14. Mr. Voss was responsible for marketing Camp, Dresser, and McKee's services to the City of Kissimmee.

15. Mr. Voss sought to influence or encourage the Kissimmee City Commission and Pollet to do business with Camp, Dresser and McKee. To this end, Mr. Voss took actions that directly or indirectly furthered or communicated his intentions to influence or encourage the Kissimmee City Commission and Pollet to do business with Camp, Dresser, and McKee.

16. In March 1993, Pollet called Mr. Voss and asked him if Camp, Dresser, and McKee had any tickets to the Nestle Invitational Golf Tournament. Mr. Voss told Pollet that his firm did not have tickets to the 1993 Nestle Invitational Golf Tournament.

17. Based on Respondent's question, Mr. Voss thought Respondent was asking him for tickets to the golf tournament.

18. Pollet testified that he asked about the passes because he wanted to know if Mr. Voss was going to attend the tournament. According to his testimony, Pollet thought that if Mr. Voss were going to the golf tournament, they could meet there. Notwithstanding his testimony, Pollet never asked Mr. Voss whether he was going to the tournament.

19. In both 1994 and 1995, Pollet accepted passes to the Nestle Invitational Golf Tournament as gifts from Mr. Voss and Camp, Dresser, and McKee. Mr. Voss gave these golf tournament passes to Pollet because Pollet expressed an interest in the tournament in 1993. Pollet did not pay for the golf tournament passes he received from Mr. Voss in 1994 and 1995.

20. Mr. Voss, as a representative of Camp, Dresser, and McKee, had given Pollet various gifts in the past. Except for partial payment for certain tickets, Pollet has never paid for any of these gifts.

21. Respondent's approach to Mr. Voss was a solicitation for tickets to the 1993 Nestle Invitational Golf Tournament.

22. Respondent admits he has accepted gifts from both Waste Management, Inc., and Camp, Dresser, and McKee.

CONCLUSIONS OF LAW

23. The Division of Administrative Hearing has jurisdiction over the parties to and the subject matter of this proceeding. Section 120.57(1), Florida Statutes.

24. Section 112.322, Florida Statutes, 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).

25. 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. Company, 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, asserts that Pollet violated Section 1112.3148(3), Florida Statutes. Therefore, the Commission must establish by a preponderance of the evidence the elements of Pollet's alleged violations.

26. Section 112.3148(3), Florida Statutes, provides:

A reporting individual or procurement employee is prohibited from soliciting any gift, food, or beverage from a political committee or committee of continuous existence, as defined in s. 106.011, or from a lobbyist who lobbies the reporting individual's or procurement employee's agency, or the partner, firm, employer, or principal of such lobbyist, where such gift, food, or beverage is for the personal benefit of the reporting individual or procurement employee, another reporting individual, or any member of the immediate family of a reporting individual or procurement employee.

27. In order to prove that Respondent violated Section 112.3148(3), Florida Statutes, the Advocate must establish the following elements:

a. Respondent must have been a reporting individual or procurement employee.

b. Respondent must have solicited a gift, food, or beverage.

c. The gift must have been solicited from a lobbyist who lobbies Respondent or his agency.

d. The gift must be for the personal benefit of the reporting person or procurement employee, or any member of the immediate family of a reporting individual or procurement employee.

28. The parties have stipulated that Pollet, as Mayor of Kissimmee, was a "reporting individual" at all times pertinent to this case and is, therefore, subject to the Code of Ethics for Public Officers and Employees. Accordingly, this element is proven.

29. The evidence established and the parties have stipulated that Mr. Geletko and Mr. Voss were "lobbyists" as that term is used is Section 112.3148(3), Florida Statutes, and as defined in Section 112.3148(2)(b), Florida Statutes. Therefore, this element is proven.

30. The term "gift" as used in Section 112.3148(3), Florida Statutes, is defined as follows:

"Gift," for purposes of ethics in government and financial disclosure required by law, means that which is accepted by a donee or by another on the donee's behalf, or that which is paid or given to another for or on behalf of a donee, directly, indirectly, or in trust for the donee's benefit or by any other means, for which equal or greater consideration is not given, including:

* * *

10. Entrance fees, admission fees, admission fees, or tickets to events, performances, or facilities.

Section 112.312(12)(a)10., Florida Statutes.

31. The evidence proved that Respondent's inquiries to Mr. Geletko and Mr. Voss were, in fact, solicitation of gifts. Respondent admitted that he asked Mr. Geletko and Mr. Voss if their companies had tickets to certain sports events. Pollet's explanations for why he asked about the tickets are self serving, and neither reasonable nor credible. Therefore, the Commission has proven that Pollet solicited gifts from lobbyists.

32. The gifts, sporting event tickets, were for the personal benefit of Pollet, who asked for the tickets because he wanted to attend the sporting events. Therefore, this element is proven.

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, John Pollet, violated Section 112.3148(3), Florida Statutes; imposing a civil penalty of $1,000.00 per violation; and issuing a public censure and reprimand.

DONE and ENTERED this 1st day of November, 1996, in Tallahassee, Florida.

___________________________________

CARLOYN S. HOLIFIELD

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(904) 488-9675 SUNCOM 278-9675

Fax Filing (904) 921-647

Filed with the Clerk of the Division of Administrative Hearings this 1st day of November, 1996.

COPIES FURNISHED:

Eric S. Scott, Esquire

Office of the Attorney General

The Capitol, Plaza Level 01

Tallahassee, Florida 32399-1050

Mark Herron, Esquire

216 South Monroe Street

Tallahassee, Florida 32301

Bonnie Williams, Executive Director

2822 Remington Green Circle, Suite 101

Post Office Drawer 15709

Tallahassee, Florida 32317-5709

Phil Claypool, General Counsel

2822 Remington Green Circle, Suite 101

Post Office Drawer 15709

Tallahassee, Florida 32317-5709

Kerrie J. Stillman

Complaint Coordinator