RECOMMENDED ORDER
A formal hearing was conducted in this case on May 27, 2010, in Jasper, Florida, before Suzanne F. Hood, Administrative Law Judge with the Division of Administrative Hearings.
APPEARANCES
For Advocate: Melody A. Hadley, Esquire
Office of the Attorney General
The Capitol, Plaza Level 01
Tallahassee, Florida 32399-1050
For Respondent: Clifford L. Adams, Esquire
6188 Southwest 79th Drive
Jasper, Florida 32052
STATEMENT OF THE ISSUES
The issues are as follow: (a) whether Respondent violated Sections 112.313(7) and/or 112.3143, Florida Statutes; (b) whether there was a waiver pursuant to Section 112.313(12); and (c) what, if any, penalties should be imposed.
PRELIMINARY STATEMENT
On January 27, 2010, the Florida Commission on Ethics (Ethics Commission) issued an Order Finding Probable Cause to believe that Respondent Wendall Hannum (Respondent), as a member of the Hamilton County Tourist Development Council (Council), violated Section 112.313(7), Florida Statutes, by having a conflicting employment or contractual relationship when he applied for and eventually received a grant of funds from the Council. The Ethics Commission also found probable cause to believe that Respondent violated Section 112.3143, Florida Statutes, by voting to approve the grant of funds for his business and/or by failing to file the requisite Memorandum of Voting Conflict.
The Ethics Commission referred this matter to the Division of Administrative Hearings on March 23, 2010. The undersigned issued an Initial Order on March 24, 2010. The parties filed a Response to Initial Order on April 1, 2010. A Notice of Hearing dated April 8, 2010, scheduled the hearing for May 27, 2010.
On May 11, 2010, Respondent filed a Response to Advocate's Recommendations.
During the hearing, the Advocate did not call any witnesses or offer any exhibits as evidence. Instead, the Advocate relies on the stipulated facts in the Joint Pre-hearing Stipulation.
Respondent testified on his own behalf and presented the testimony of three additional witnesses. Respondent offered three exhibits that were accepted as evidence.
A transcript of the proceeding was not filed with the Division of Administrative Hearings. Respondent filed a Proposed Recommended Order on June 4, 2010. The Advocate filed its Proposed Recommended Order on June 7, 2010.
Hereinafter, all references shall be to Florida Statutes (2009), unless otherwise indicated.
FINDINGS OF FACT
1. The Board of County Commissioners of Hamilton County (Board) appoints the voluntary members of the Council for the purpose of promoting tourism. The Council is funded by a three percent tourist development (bed) tax on overnight lodging.
2. At all times relevant here, Respondent served as a member of the Council. Respondent has served in that capacity as a volunteer for twelve years. As a Council member, Respondent is subject to the requirements of Part III, Chapter 112, Florida Statutes, Florida's Code of Ethics for public officers and employees.
3. Respondent is also the principal owner and operator of American Canoe Adventures, Inc. Respondent's business sponsors an annual canoe race, known as the Annual Suwannee River Challenge, in conjunction with the Stephen Foster Memorial State Park.
4. The race is a one-day event in held in October each year. It begins in Fargo, Georgia, and finishes in White Springs, Florida, at the Stephen Foster Folk Culture Center.
5. In 2005, Respondent, on behalf of his business, applied for a $1,500 grant from the Council. The funds were to advertise the canoe race.
6. At a meeting on April 13, 2005, all Council members were aware that Respondent intended to advertise the canoe race with the proceeds of the grant. The Council members knew Respondent had special knowledge and experience as to where to place the ads for the best effect.
7. With Respondent abstaining from the vote, the Council voted to recommend to the Board that Respondent's business receive a $1,200 grant. The Council's attorney was present at the meeting and remembers preparing a CE Form 8B, Memorandum of Voting Conflict for County, Municipal, and Other Local Public Officers regarding the Council's vote. However, Petitioner does not remember whether he signed the memorandum and filed it with the Board. No such document was found in the Board's records after an extensive search.
8. On or about May 3, 2005, the Board discussed the existence of a potential conflict of interest on the grant to Respondent's business as part of the Consent Agenda, which stated as follows in relevant part:
7) APPROVE REQUEST FROM TOURIST DEVELOPMENT COUNCIL TO PAY $1,200.00 FROM TDC FUNDS FOR ADVERTISING AND PROMOTION REGARDING THE AMERICAN CANOE ADVENTURES.
9. Before taking a vote, the Board changed the language of item seven on the Consent Agenda to "state that the grant for American Canoe Adventures is a specific event in conjunction with the Stephen Foster Memorial."
10. The Board then voted to approve the Consent Agenda unanimously. The Board did not take a special vote on whether to waive the conflict of interest for Respondent. The Board believed Respondent did not have a conflict because the grant was to Respondent's business and not directly to Respondent.
11. In 2005, Respondent used the funds as intended, to promote tourism by advertising the canoe race. Respondent did not make a profit by sponsoring the event. He returned any funds not spent on advertising to the Council.
12. On or about April 12, 2006, Respondent applied for a $4000 grant from the Council to advertise the canoe race. The other members of the Council were aware of Respondent's interest in American Canoe Adventures, Inc.
13. With Respondent abstaining from the vote, the Council voted to recommend to the Board that Respondent's business receive a $2,000 grant. Petitioner subsequently completed and filed a CE Form 8B Memorandum of Voting Conflict for County, Municipal, and Other Local Public Officials regarding the vote on April 12, 2006.
14. At the next Board meeting in 2006, the Board unanimously approved the Council's recommendation to award the $2,000 grant to Respondent's business. The Board was aware of Respondent's interest in American Canoe Adventures, Inc., but did not take a special vote to waive any conflict of interest.
15. In 2006, Respondent used the funds as intended, to promote tourism by advertising the canoe race. Respondent did not make a profit by sponsoring the event. He returned any funds not spent on advertising to the Council.
CONCLUSIONS OF LAW
16. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this proceeding pursuant to Sections 120.569 and 120.57(1), Florida Statutes.
17. Section 112.322, Florida Statutes, and Florida Administrative Code Rule 34.-5.0015 authorize the Commission to conduct investigations and to make public reports on complaints concerning violations of Part III, Chapter 112, Florida Statutes, Code of Ethics for Public Officers and Employees.
18. The Advocate has the burden to establish the allegations in the Order Finding Probable Cause by clear and convincing evidence. See Latham v. Florida Commission on Ethics, 694 So. 2d 83 (Fla. 1st DCA 1997).
19. In this case, the Order Finding Probable Cause alleges that Petitioner violated Section 112.313, Florida Statutes, which states as follows in relevant part:
(7) 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 or she 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 or her private interests and the performance of his or her public duties or that would impede the full and faithful discharge of his or her public duties.
* * *
(12) EXEMPTION.--The requirements of subsections (3) and (7) as they pertain to persons serving on advisory boards may be waived in particular instance by the body which appointed the person to the advisory board, upon a full disclosure of the transaction or relationship to the appointing body prior to the waiver and an affirmative vote in favor of waiver by two-thirds vote of that body.
20. The first element for violation of Section 112.313(7), Florida Statutes, was met because Respondent, as a member of the Council, was a reporting individual and subject to the Code of Ethics. The next element was met because Respondent is the principal owner of American Canoe Adventures, Inc. Finally, the last element is met because Respondent applied for and was recommended by the Council to receive grants in 2005 and 2006. In other words, Respondent and/or Respondent's business was "doing business" with the Council of which he was a member.
21. Clear and convincing evidence indicates that Respondent violated Section 112.313(7), Florida Statutes. There was no exemption for him to do business with the Council in 2005 or 2006 because there was no affirmative vote for a waiver by the Board on either occasion.
22. Section 112.3143, Florida Statutes, sets forth the law relative to voting conflicts as follows in pertinent part:
(1) As used in this section:
(a) "Public officer" includes any person elected or appointed to hold office in any agency, including any person serving on an advisory body.
* * *
(3)(a) No county, municipal, or other local public officer shall vote in an official capacity upon any measure which would inure to his or her special private gain or loss; which he or she know would inure to the special private gain or loss of any principal by whom he or she is retained or to the parent organization or subsidiary of a corporate principal by which he or she is retained, other than an agency as defined in s. 112.312(2); or which he or she knows would inure to the special private gain or loss of a relative or business associate of the public officer. Such public officer shall, prior to the vote being taken, publicly state to the assembly the nature of the officer's interest in the matter from which he or she is abstaining from voting and of his or her 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.
23. Respondent had a duty to ensure that any required documents had been properly filed after abstaining on the vote for the grants. Respondent filed the CE Form 8B in 2006, but violated Section 112.3143, Florida Statutes, when he did not file the required memorandum in 2005.
24. Penalties for violating the Code of Ethics are set forth in Section 112.317(1), Florida Statutes, which states as follows in relevant part:
(1) Violation of any provision of this part, including, but not limited to, any failure to file any disclosures required by this part or violation of any standard of conduct imposed by this part, or violation of any provision of s. 8, Art. II of the State Constitution, in addition to any criminal penalty or other civil penalty involved, shall, under applicable constitutional and statutory procedures, constitute grounds for, and may be punished by, one or more of the following:
* * *
(d) In the case of a former public officer or employee who has violated a provision applicable to former officers or employees or whose violation occurred before the officer's or employee's leaving public office or employment:
1. Public censure and reprimand.
2. A civil penalty not to exceed $10,000.
25. While Respondent's violations are serious, the penalty should be appropriate for the magnitude of the violations. The record shows that Respondent is not guilty of intentional wrongdoing. He never meant to mislead anyone on the Council or Board. Respondent's relationship to American Canoe Adventures, Inc., was known by all members of the Council and Board. Respondent abstained from voting on the grants in 2005 and 2006.
26. Respondent cooperated to the fullest extent in the investigation of this matter. In fact, Respondent and the Advocate were able to stipulate to all relevant facts.
27. The recommended penalty is a civil penalty in the amount of $500 for violating Section 112.313(7), Florida Statutes, in 2005 and 2006, plus $250 for the violation of Section 112.3143, Florida Statutes, in 2005. A public censure and/or reprimand under the circumstances of this case is not necessary or appropriate.
RECOMMENDATION
Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED:
That the Florida Commission on Ethics enter a final order finding Respondent guilty of violating Sections 112.313(7) and 112.3143, Florida Statutes, and imposing a civil penalty in the total amount of $750.
DONE AND ENTERED this 17th day of June, 2010, in Tallahassee, Leon County, Florida.
S
SUZANNE F. HOOD
Administrative Law Judge
Division of Administrative Hearings
The DeSoto Building
1230 Apalachee Parkway
Tallahassee, Florida 32399-3060
(850) 488-9675
Fax Filing (850) 921-6847
www.doah.state.fl.us
Filed with the Clerk of the
Division of Administrative Hearings
this 17th of June, 2010.
COPIES FURNISHED:
Clifford L. Adams, Esquire 6188 Southwest 79th Drive Jasper, Florida 32052
Melody A. Hadley, Esquire Office of the Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399
Kay Starling, Agency Clerk
Florida Commission on Ethics
3600 Maclay Boulevard, South
Suite 201
Post Office Drawer 15709
Tallahassee, Florida 32317-5709
Philip C. Claypool, Executive Director
Florida Commission on Ethics
3600 Maclay Boulevard, South
Suite 201
Post Office Drawer 15709
Tallahassee, Florida 32317-5709
Linzie Bogan, Esquire
Office of the Attorney General
The Capitol, Plaza Level 01
Tallahassee, Florida 32399-1050
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