Complaint No. 99-040


                       DOAH Case No. 01-1439EC









This matter came before the State of Florida Commission on Ethics, meeting in public session on Thursday, March 14, 2002, for final action on the Recommended Order of the Division of Administrative Hearings Administrative Law Judge rendered in this matter on January 4, 2002.

The Respondent filed an exception to Conclusion of Law paragraph 48 of the Recommended Order, arguing that there was no competent substantial evidence and that the Commission should find that the Respondent did not violate Section 112.313(6), Florida Statutes, regarding the Respondent's soliciting and/or accepting tickets or complimentary admissions to boxing matches, or, alternatively, that all penalties should be waived by the Commission.  The Commission Advocates also filed exceptions, directed both at the recommended penalty and at Conclusion of Law paragraph 49.

Having considered the Recommended Order, the Exceptions filed by the parties, and the record in this case, the Commission reserves ruling on the Respondent's exceptions and on the Advocate's exception to the recommended penalty, and remands the case to the Division of Administrative Hearings for the entry of an order explaining the conclusion of law in paragraph 49.

Paragraph 49 concerns the issue of whether the Respondent violated Section 112.313(6), Florida Statutes, by representing falsely to the Salvation Army and the public on Athletic Commission stationery that David Walker had completed 16 hours of his obligatory community service.  The pertinent findings of fact in the Recommended Order are as follows:

27.            In September 1997, David Walker performed 16 hours of community service at the Tampa office of the Athletic Commission.

28.            Two documents were signed by Respondent, one a letter dated September 21, 1997, indicating that David Walker had performed 16 hours of community service; the second, a memo indicating that David Walker had completed the 16 hours of community service on two Saturdays, September 6 and 13, 1997.

29.            David Walker testified that he had completed the community service on weekdays.


Paragraph 49 is the only portion of the conclusions of law in the Recommended Order on this issue; it states:

49.       The evidence demonstrates clearly and convincingly that the memo authored by Respondent with reference to the actual days on which David Walker performed community service was inaccurate.  I do not find that this inaccuracy was done corruptly as defined in Subsection 112.312(9), Florida Statutes.


The term "corruptly" includes several statutory "elements" and is defined in Section 112.313(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 or her public duties.


As the First District Court of Appeal noted in Blackburn v. State, Commission on Ethics, 589 So. 2d 431, (Fla. 1st DCA 1991):

An essential element of the charged offense under section 112.313(6) is the statutory requirement that appellant acted with wrongful intent, that is, that she acted with reasonable notice that her conduct was inconsistent with the proper performance of her public duties and would be a violation of the law or the code of ethics in part III of chapter 112.  [Id., at p. 434.]


In addition, the Court stated:

The statutory definition of 'corruptly' in section 112.312(7) not only requires that the conduct complained of be done with a wrongful intent, it also requires that the 'act or omission' be 'inconsistent with the proper performance of [her] public duties.  [Id., at p. 436.]


The Advocates' exception argues that the meaning of the term "corruptly," as defined at Section 112.312(9), Florida Statutes, was misinterpreted and misapplied, and further that the definition is a matter of law over which the Commission has substantive jurisdiction.  The Advocates argue that Respondent submitted a letter as an official record to David Walker's probation officer on Athletic Commission letterhead intending that the information provided therein would be used in the probation officer's report to the judge regarding Mr. Walker [Advocates= Exhibit No. 32].  As Executive Director of the Athletic Commission, the Advocates assert, the Respondent misrepresented to the probation officer that Mr. Walker had completed his community service on two weekend days [Tr. 436-437 & Advocates= Exhibit No. 32].  The Advocates also argue that Respondent's misrepresentation was made to benefit Mr. Walker within the criminal justice system and to prevent him from having to fulfill the requirements placed upon him through the Court as required by Section 948.031, Florida Statutes.  Further, they argue that it is "patently inconsistent" with the proper performance of Respondent's public duties for him to submit "false records" to the court system regarding a probationer," the Advocates write.

The Respondent argues that there was no evidence to establish that the Respondent intentionally submitted inaccurate information, and that was the basis for the conclusion that Respondent did not act "corruptly."

Our review of the record on this issue indicates that David Walker, a long time, very good friend of the Respondent [according to the Respondent, Tr. 434-5], testified that he completed 16 hours of community service at the offices of the Athletic Commission, and did not do so on the two Saturdays in question [Tr. 441].  Walker also testified that Respondent was there when he did the work, that Respondent let him into the Commission's offices, and that Respondent was there to verify what Walker had done [Tr. 447-8].  The Respondent stated that he was not there when Walker did the hours [Tr. 433], that he was probably out of town [Tr. 437], that there probably was no supervision of Mr. Walker [Tr. 438], and that he was not there to let Walker into the offices [Tr. 475].  Mr. Walker also testified that he submitted Respondent's memorandum referencing his performing his community service hours on two Saturdays to his probation officer knowing the statement to be false [Tr. 442-3].

The Recommended Order simply concludes that Respondent did not act "corruptly," and does not explain what element of statutory proof was lacking or otherwise how the proof failed to justify the conclusion that the Respondent acted "corruptly," as the defined term has been construed by the First District Court of Appeal in Blackburn.  The Commission on Ethics is charged with the constitutional responsibility of issuing a public report on each complaint concerning a breach of public trust by a public officer or employee.  Art. II, Section 8(f), Florida Constitution.  Without understanding how the conclusion was reached in paragraph 49 that the Respondent did not act "corruptly," we are unable to evaluate the Advocates' exception and are unable to report to the people of Florida what happened and why there was, or why there was not, a violation of the Code of Ethics.

WHEREFORE, the Commission on Ethics remands this case to the Division of Administrative Hearings for such further proceedings as may be necessary to explain the conclusion of law in paragraph 49 of the Recommended Order, that the Respondent did not act "corruptly."


ORDERED by the State of Florida Commission on Ethics meeting in public session on March 14, 2002.








Ronald S. Spencer, Jr.




cc:       Ms. Julie A. Reynolds, Attorney for Respondent

Mr. Joseph Donnelly and Ms. Veronica E. Donnelly, Commission Advocates

Ms. Marcia G. Cooke, Chief Inspector General, Executive Office

of the Governor, Complainant

Division of Administrative Hearings