BEFORE THE
STATE OF
FLORIDA
COMMISSION
ON ETHICS
In re GEORGE HAMEETMAN, )
)
Respondent. ) Complaint
No. 96-103
) DOAH No. 98-4642EC
) Final Order No. COE 00-024
______________________________)
FINAL
ORDER AND PUBLIC REPORT
This
matter came before the State of Florida Commission on Ethics, meeting in public
session on June 1, 2000, pursuant to the Recommended Order of the Division of
Administrative Hearings' Administrative Law Judge rendered in this matter on
JANUARY 20, 2000 [a copy of which is attached and incorporated by
reference]. The Administrative Law
Judge recommends that the Commission enter a final order and public report
finding that the Respondent, GEORGE HAMEETMAN, as Mayor of the City of Hialeah
Gardens, did not violate Section 112.313(6), Florida Statutes, by removing City
property from the Mayor’s office prior to his vacating the premises at the end
of his term of office, but did violate Section 112.313(6) by manipulating City
fiscal practices in an effort to afford himself a tax benefit and 112.313(7)(a)
by having a contractual relationship with Perfect Builders, a construction
company, doing business with the City, and recommending that a civil penalty of
$3,000 and restitution of $3,618.81 be imposed upon him and that he be publicly
reprimanded and censured.
This
matter began with the filing of a complaint and two amendments by Gilda
Cabrera, a/k/a Gilda Cabrera De Corzo, a/k/a Gilda C. Oliveros, alleging that
the Respondent, as Mayor of the City of Hialeah Gardens violated Sections
112.313(3), 112.313(6), and 112.313(7)(a), Florida Statutes. On March 10, 1998, the Commission on Ethics
issued an order finding probable cause to believe that the Respondent had
violated Section 112.313(6), Florida Statutes, by manipulating city fiscal
practices in an effort to afford himself a tax benefit and by removing City
furniture that had been donated to the City from the Mayor’s office prior to
vacating the premises at the end of his term in office and Section
112.313(7)(a), Florida Statutes, by having a contractual or employment
relationship with Perfect Builders while that company was doing business with
the City of Hialeah Gardens. A formal
evidentiary hearing was held before the Administrative Law Judge on August 20,
1999, by video teleconference between Tallahassee and Miami. A transcript of the hearing was filed and
the parties then filed proposed recommended orders with the Administrative Law
Judge. The Recommended Order was
transmitted to the Commission and the parties on January 20, 2000, and the
parties were notified of their right to file exceptions to the Recommended
Order with the Commission within 15 days from the date that the Recommended
Order was rendered (by February 4, 2000).
Respondent’s Motion for Additional Time to File Exceptions was granted
by the Commission Chair on February 9, 2000, and both the Respondent and the
Commission Advocate were given until February 29, 2000 to file their
exceptions.
Thereafter, Respondent timely filed his exceptions,
however neither his exceptions nor his certificate of service were signed. On March 6, 2000, the Commission Advocate
filed a Motion to Strike Respondent’s
Exceptions claiming that both Section 120.569(2)(e), Florida Statutes, and Fla.
R. Jud. Admin. 2.060(d) requires attorneys to sign all pleadings and papers and
provides that, if a pleading is not signed, the agency may proceed as though
the pleading or other paper had not been served. However, rather than filing an immediate response to the
Commission Advocate’s Motion to Strike Respondent’s Exceptions or signed
exceptions, on March 9, 2000, Respondent filed a document entitled “Motion To
Relief,” which, for various reasons connected to the testimony of the
Commission Advocate's expert, James Warmus, asked the Commission to set aside
that part of the Administrative Law Judge’s Recommended Order relating to her
conclusion that the Respondent violated Section 112.313(6), Florida
Statutes. On March 10, 2000, the
Commission Advocate filed a Motion to Strike Respondent’s Motion To Relief claiming
that there is neither statutory nor rule authority for Respondent’s “Motion To
Relief,” and that, although the Motion contains a signed Certificate of
Service, the Motion itself is unsigned.
Respondent's “Response To
Advocate’s Motion To Strike,” which bears a March 15, 2000 Certificate of
[Mail] Service date, was filed with the Commission on March 21, 2000, seven
days after it was due to be filed. No
explanation as to its being filed late was provided by the Respondent. Within
Respondent’s “Response to Advocate’s Motion to Strike” was a page entitled “Motion For Leave to Amended [sic],” in
which he requested that he be granted leave to amend his exceptions. Filed separately, but along with
Respondent’s response, was Respondent’s
“Amended Exceptions Pursuant Rule 28-106.217, F.A.C. To ALJ Recommended
Order.” In her “Reply To Respondent’s
Response To Advocate’s Motion To Strike
Respondent’s Exceptions,” which also was filed on March 21, 2000, the
Commission Advocate noted that Respondent’s Amended Exceptions contain no
separate signature line above the Certificate of Service, which, although
signed, also is undated and does not contain his Florida Bar number.
In an
order issued April 11, 2000, Nunc pro tunc April 3, 2000, the Commission Chair,
acting in his capacity as “Presiding
Officer” pursuant to Rules 28-106.102 and 28-106.204(1) of the Uniform Rules of
Administrative Procedure and Rule 34-5.0008, F.A.C., granted the Commission Advocate’s Motion to Strike Respondent’s
exceptions and denied Respondent’s Motion to file Amended Exceptions. He ruled that inasmuch as Section
120.569(2)(e), Florida Statutes, and Fla. R. Jud. Admin. 2.060(d) require
attorneys to sign all pleadings and papers and provide that, if a pleading is
not signed, the agency may proceed as though the pleading or other paper had
not been served, and inasmuch as neither Respondent’s initial Exceptions nor
his Certificate of Service were signed, and inasmuch as the totality of the
circumstances including Respondent's failure to timely file a response to the
Advocate's Motion to Strike his exceptions, which response was not considered
because the Response was not timely filed and no explanation or justification
was provided for its untimely filing, Respondent’s continuing to file motions
and responses to motions with only a signed Certificate of Service without
providing any justification or excuse for his failure to abide by the
applicable rules and statute, even after the Advocate, through her pleading,
put the Respondent on notice of possible defects in his pleadings, and his
failure to timely file amended pleadings and exceptions that comply with the
applicable rules and statute, evidences either deliberate disregard of the
Commission’s authority or willful disregard or gross indifference to the applicable
rules of procedure or deliberate callousness, for which the granting of the
Advocate's Motion to Strike Respondent’s Exceptions and the denial of
Respondent's Motion to file Amended Exceptions are appropriate sanctions. The Commission Chair also denied
Respondent’s Motion to Relief and granted the Commission Advocate’s Motion to
Strike Respondent’s Motion To Relief after ruling that Respondent's motion
appears to be further amplification of exceptions that the Respondent had
already made in his unsigned exceptions which were filed outside of the 15 day
time frame for filing exceptions permitted by R. 28-106.217, F.A.C., and the
extended period authorized on February 9, 2000, and that there is neither
statutory nor rule authority for Respondent’s motion.
Under
Section 120.57(1)(l), Florida Statutes, an agency may reject or modify the
conclusions of law and interpretations of administrative rules contained in the
recommended order. However, the agency
may not reject or modify findings of fact made by the Administrative Law
Judge unless a review of the entire record demonstrates that the
findings were not based on competent, substantial evidence or that the
proceedings on which the findings were based did not comply with the essential
requirements of law. See, e.g., Freeze
v. Dept. of Business Regulation, 556 So. 2d 1204 (Fla. 5th DCA 1990); and Florida
Department of Corrections v. Bradley, 510 So. 2d 1122 (Fla. 1st DCA
1987). Competent, substantial evidence
has been defined by the Florida Supreme Court as such evidence as is
"sufficiently relevant and material that a reasonable mind would accept it
as adequate to support the conclusions reached." DeGroot v. Sheffield, 95 So. 2d 912, 916 (Fla. 1957).
The agency
may not reweigh the evidence, resolve conflicts therein, or judge the
credibility of witnesses, because those are matters within the sole province of
the hearing officer. Heifetz v.
Dept. of Business Regulation, 475 So. 2d 1277, 1281 (Fla. 1st DCA
1985). Consequently, if the record of
the DOAH proceedings discloses any competent, substantial evidence to
support a finding of fact made by the Administrative Law Judge, the Commission
is bound by that finding.
Under the
Section 120.57(1)(l), Florida Statutes, an agency may reject or modify the
conclusions of law over which it has substantive jurisdiction and
interpretations of administrative rules over which it has substantive
jurisdiction. When rejecting or
modifying such conclusion of law or interpretation of administrative rule the
agency must state with particularity its reasons for rejecting or modifying
such conclusion of law or interpretation of administrative rule and must make a
finding that its substituted conclusion of law or interpretation of administrative
rule is as or more reasonable than that which was rejected or modified.
Having
reviewed the Recommended Order, the Commission makes the following findings,
conclusions, rulings and recommendations.
Because
the Commission Advocate’s Motion to Strike Respondent’s Exceptions was granted
and because the Commission Advocate did not file exceptions to the Recommended
Order, there were none before the Commission for it to consider and rule
on. Therefore, after considering the
Recommended Order in public session pursuant to notice to the Advocate and the
Respondent, the Commission adopts the Recommended Order in full.
Accordingly,
the Commission on Ethics finds that the Respondent, GEORGE HAMEETMAN, as Mayor
of the City of Hialeah Gardens, violated Section 112.313(6), Florida Statutes,
by using his official position corruptly to reverse a bank transaction that
resulted in his expense reimbursement payment being attributable to him as
income for the 1995 tax year, rather than the 1994 tax year, in order to
benefit himself at the cost of exposing the City to tax penalties, and Section
112.313(7)(a), Florida Statutes, by having a contractual relationship with
Perfect Builders, a construction company, doing business with the City.
Pursuant
to Sections 112.317(1) and 112.324(4), Florida Statutes, it is the
recommendation of the Commission on Ethics that the Respondent be publicly
censured and reprimanded and that a civil penalty in the amount of $3,000.00
(Three Thousand dollars) and restitution in the amount of $3,618.81 (Three
Thousand, Six Hundred and Eighteen dollars and Eighteen cents) be imposed
against him.
ORDERED by the State of Florida Commission
on Ethics meeting in public session on June 1, 2000.
____________________________
Date
Rendered
_______________________________
Peter M.
Dunbar
Chair
THIS ORDER
CONSTITUTES FINAL AGENCY ACTION. ANY PARTY WHO IS ADVERSELY AFFECTED BY THIS
ORDER HAS THE RIGHT TO SEEK JUDICIAL REVIEW UNDER SECTION 120.68, FLORIDA
STATUTES, BY FILING A NOTICE OF ADMINISTRATIVE APPEAL PURSUANT TO RULE 9.110
FLORIDA RULES OF APPELLATE PROCEDURE, WITH THE CLERK OF THE COMMISSION ON
ETHICS, 2822 REMINGTON GREEN CIRCLE, SUITE 101, P.O. DRAWER 15709, TALLAHASSEE,
FLORIDA 32317-5709; AND BY FILING A COPY OF THE NOTICE OF APPEAL ATTACHED TO
WHICH IS A CONFORMED COPY OF THE ORDER DESIGNATED IN THE NOTICE OF APPEAL
ACCOMPANIED BY THE APPLICABLE FILING FEES WITH THE APPROPRIATE DISTRICT COURT
OF APPEAL. THE NOTICE OF ADMINISTRATIVE APPEAL MUST BE FILED WITHIN 30 DAYS OF
THE DATE THIS ORDER IS RENDERED.
cc: Mr. Charles Toledo, Attorney for Respondent
Ms. Virlindia Doss, Commission Advocate
Ms. Gilda Oliverso, Complainant
The
Honorable Carolyn S. Holifield, Administrative Law Judge
Division
of Administrative Hearings