HomeMy WebLinkAbout2001 03 26 Regular C City Attorneys Research
March 12, 2001
City Commission Regular Agenda
Item "C"
ATTACHMENTS:
Letter, dated February 27, 2001, from City Attorney Anthony Garganese to
CityManager Ronald McLemore
Letter and legal citations, dated February 5, 2001, from City Attorney
Anthony Garganese to Chris Anderson, Esq., State Commission on Ethics
COMMISSION ACTION:
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BROWN, WARD, SALZMAN & WEISS, P.A.
@
ATTORNEYS AT LAW
Usher L. Brown ·
John H. Ward ·
Gary S. Salzmano
Jeffrey S, Weiss
Suzanne D' Agresta
Anthony A. GarganeseD
Scott D, Danahy
James G. Vickaryous
Allison Carmine McDonald
Alfred Truesdell
Arthur R, "Randy" Brown, Jr.
Brett A. Marlowe
Jeffrey P. Buak
Kristine R. Kutz
III North Orange Ave., Suite 875
Post Office Box 2873
Orlando, FL 32802-2873
(407) 425-9566
(407) 425-9596 FAX
Website: www.orlandolaw.net
e-mail:agarganese@orlandolaw.net
· Board Certified Civil Trial Lawyer
o Board Certified Business Litigation Lawyer
o Board Certified City, County & Local Government Law
February 27, 2001
Mr. Ronald McLemore, City Manager
City of Winter Springs
1126 East S. R. 434
Winter Springs, FL 32708
Re: Business Card Issue
Dear Ron:
In your absence at the February 12, 2001 City Commission meeting, I advised the City
Commission that the staff attorneys of the Commission on Ethics were unable to render an informal
opinion regarding the appropriate use of City business cards. The staff attorneys felt there is
insufficient legal precedent in which to render an informal opinion. Therefore, in order for the City
Commission to receive an 'ethics opinion regarding this issue, the City Commission will have to
request a formal opinion from the Commission on Ethics. A formal opinion requires that the issue
be presented to the full Commission on Ethics, who will conduct an appropriate public hearing
before issuing a formal written opinion. The City Commission has asked that this item be placed
on an upcoming City Commission agenda so that they can determine whether they want to request
a formal opinion.
Mr. Ronald McLemore, City Manager
City of Winter Springs
February 27,2001
Page 2
Enclosed for the City Commission's consideration is the February 5, 2001 letter that I
prepared for purposes of requesting an informal opinion. I have also included with that letter a copy
of a previous ethics complaint that was filed In re John Reed Buckley which was provided by the
staff attorneys. In addition, I have enclosed a copy of the Commission on Ethics opinions 77-175,
75-45, and 91-38 and Gordon v. State o.fFlorida Commission on Ethics, 609 So.2d 125 (Fla. App.
4 Dist. 1992), which were also cited in my February 5 letter.
In re John Reed Buckley it was alleged in an ethics complaint that Mr. Buckley was misusing
his position on the Airport Authority by using his Authority business cards, which were paid for with
public funds, to promote the candidacy of persons seeking seats on the Authority. Mr. Buckley
apparently wrote the names. of preferred candidates on the cards and handed them out at gatherings.
The Commission on Ethics found that the allegations in the complaint were insufficient to support
a finding that Mr. Buckley misused his public position in violation of ~ 112.313(6), Florida Statutes.
The Commission on Ethics noted that the complaint contained insufficient facts to indicate that Mr.
Buckley violated 9 112.313(6), Florida Statutes. The Commission on Ethics also specifically noted
that the complaint contained no allegations demonstrating how Mr. Buckley's conduct would be
considered "corrupt" for purposes of the Code of Ethics. . As such, the dismissal of the complaint
made against Mr. Buckley may have been more because of an inadequately drafted complaint and
insufficient allegations, rather than Mr. Buckley not violating S 112.313(6), Florida Statutes. I
would, therefore, caution the Commission from reading too much into the dismissal of the complaint
against Mr. Buckley.
Furthermore, as I indicated at the February 12th City Commission meeting, whenever the
misuse of a public position is considered under 9 112.313(6), Florida Statutes, a violation of that
section only occurs when it can be demonstrated that the public official acted "corruptly". Corruptly
has been defined to mean something done with a wrongful intent and for the purpose of obtaining
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 public duties. Because there is an issue
of intent in proving a violation ofS 112.313(6), Florida Statutes, the Commission on Ethics has been
reluctant in the past to issue opinions regarding misuse of public position because no final
conclusion can be drawn whether a violation exists under this provision without a determination of
intent which can only be made through an investigation and hearing. As such, an advisory opinion
from the Commission on Ethics on this issue may be of little assistance in addressing the issue that
I presented to the Commission on Ethics in my February 5, 2001 letter.
If the City Commission desires an opinion from the Commission on Ethics, we need to advise
the Commission on Ethics staff so that the issue presented by the City Commission can be submitted
to the Commission on Ethics sometime in the very near future. The Commission on Ethics meets
once a month and their agenda is set approximately several weeks in advance, so there can be a 60
Mr. Ronald McLemore, City Manager
City of Winter Springs
February 27,2001
Page 3
to 90-day time period between the date that the City requests an ethics opinion and the date that an
opinion is actually rendered.
I will be happy to ai1swer any questions when the City Commission considers this agenda
item.
Anthony A. Garganes
City Attorney
AAG:kj
Enclosures
F:\DOCS\City of Winter Springs\General\Ethics\McLcmorcOO I.kj
~(Q)[?)W.
....
BROWN, WARD, SALZMAN & WEISS, P.A.
ATTORNEYS AT LAW
Usher L Brown ·
John H. Ward ·
Gary S. Salzmano
Jeffrey S. Weiss
Suzanne D' Agresta
Anthony A. GarganeseO
Scott D. Danahy
James G. Vickaryous
Allison Carmine McDonald
Alfred Truesdell
Arthur R. "Randy" Brown,. Jr.
Brett A. Marlowe
Jeffrey P. Buak
111 North Orange Ave., Suite 875
Post Office Box 2873
Orlando, FL 32802-2873
(407) 425-9566
(407) 425-9596 FAX
Email: firm@orlandolaw.net
Website: www.orlandolaw.net
agarganese@orlandolaw.net
· Board Certified Civil Trial Lawyer
o Board Certified Business Litigation Lawyer
o Board Certified City, County & Local Government Law
February 5,2001
Via Facsimile -- 850 488 3077
Via u.s. Mail
Chris Anderson, Esq.
Commission on Ethics
State of Florida
2822 Remington Green Circle - Suite 1
PO Drawer 157
Tallahassee, FL 32317-5709
Dear Mr. Anderson:
The undersigned represents the City of Winter Springs as City Attorney. On behalf of the
City Commission of Winter Springs, I am requesting an informal opinion regarding the issue set
forth and explained below.
FACTS
At the City's nominal expense, the City provides each City Commissioner and the Mayor
with city business cards. The city business cards are ordinary and simple, and similar to the typical'
business cards carried daily by millions of people. In this case, the city business cards contain
general information regarding the City, including a copy of the City seal and the City's name, address
and telephone and fax numbers. In addition, the city business cards are personalized for each
Commissioner and the Mayor by including their respective name, city title and e-mail address. The
Chris Anderson, Esq.
Commission on Ethics
State of Florida
February 5,.2001
Page 2
Commissioners and the Mayor regularly carry the city business cards on their person and they
distribute them in many situations to identify themselves and to provide contact information.
THE BUSINESS CARD
The business card, as is true in every area where business cards are used, serves to identify
the name and status of the person presenting the card. The business card also has the desired effect
of being a convenient means of introduction and eliminating confusion in identifying and
communicating with individ~als. For the most part, the use of business cards is a matter of personal
taste and local custom. But, one could reasonably argue that there is an implied notion in our society
that a business card is part of an individual's persona and that there is an expectation that it will be
used ,in a variety of personal and business situations. Moreover, there is an expectation that elected'
officials will use their business cards as an efficient and cost-effective means of introducing
themselves to constituents, community leaders, developers, and others in a variety of sitUations to
promote the community that has elected them to public office.
THE CITY COMMISSION'S INQUIRY
In this context, members of the city commission. and the Mayor predominantly use city
business cards for identification purposes while performing official duties and attending government
related functions. On occasion, however, the Commissioners and the Mayor would like to use the
city business cards as a means of introducing and identifying themselves when engaged in other
affairs, including personal aff~s. For example, in the course of conducting their private business
affairs, a Commissioner and/or the Mayor may also identifY an opportunity to promote the City.
During the course of this dual private/public situation, a city business card may be presented, in
person or correspondence, to an individual for identification and information purposes and as a
gesture of good will.
--
Therefore, the issue presented is:
During the course of handling their private business and personal affairs, may
the City Commissioners and/or the Mayor occasionally provide, upon or
without request, city business cards to individuals in person or with
correspondence?
LEGAL ANALYSIS
In summary, my legal research revealed no legal authority or opinion of the Commission on
Ethics expressly limiting the use of city business cards. However, a previous opinion of the
Commission on Ethics stated it was proper for a state representative to enclose a business card in
Chris Anderson, Esq.
Commission on Ethics
State of Florida
February 5,2001
Page 3
correspondence to constituents. But unlike the issue presented here, the representative printed the
cards at his own expense. Further, there is a line of legal authority restricting the use of government
stationery when such use has no public purpose, which, at first blush, seems somewhat related to the
issue presented. Notwithstallding, it is my view the opinions regarding stationery should not be
broadly construed to apply to the use of business cards because the personal nature of using a
business card is clearly distinguishable from the nature of using government stationery, which is
clearly intended to manifest an official act. Furthermore, from a public policy perspective, the
imposition of significant restrictions on the use of city business cards could lead to confusion and
absurd legal results which the Florida Code of Ethics is not intended to cause. Accordingly, as
explained below, it is my opinion that during the course of handling their private business and
personal. affairs', it would not be per se improper for a City Commissioner and/or the Mayor to
distribute, . upon or without request, a city business card to an individual in person or with
correspondence~
Section 112.J13(6), Florida Statutes, appears to be the provision of the Code of Ethics most
applicable t01he City Commission's inquiry. It provides:
MISUSE OF PUBLIC POSITION. No public officer or employee of an
agency shall corruptly use or attempt to use his official position or any property or
resource which may be within his trust, or perfQrnI ,his official duties, to secure a
special privilege, benefit, or exemption for himself or others. This section shall not
be construed to conflict with Section 104.31.
The term.. "corruptly" is defined as follows:
"Corruptly" means done with 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.
--
Section 112312(9), Florida Statutes.
The Commission on Ethics has opined that Section 112.313(6) prohibits public officials.
from using their official positions to secure special privileges or benefits for themselves or another,
where the official's actions are taken with wrongful intent to obtain said privilege or benefit and are
inconsistent with the proper performance of the official's public duties. See CEO, 99-8.
With respect to the use of government stationery, the Commission of Ethics took a rather
expansive approach to interpreting Section. 1 12.313(6), Florida Statutes:
Chris Anderson, Esq.
Commission on Ethics
State of Florida
February 5,2001
Page 4
We are of the opinion that whether a corrupt misuse of official position has occurred
in a given situation depends on how and for what purpose the stationery will be used,
rather than upon the fact of its use. In terms of whether the council member's letter
would be a corrupt misuse of position, we see no difference between her using the
proposed stationery and her using plain stationery for a letter in which she refers to
herself as a Council member. Either way, the recipient of the letter is informed of the
Council member's public position. This may be appropriate in the political contexts
noted above, or it may be inappropriate, for example, if the letter were being sent to
settle a strictly private dispute with a debtor or creditor.
CEO, 91-38.
Further, the Fourth District Court of Appeal affirmed the Commission of Ethics ' conclusion
that a city commissioner violated Section 112.313(6), Florida Statutes when the commissioner used
city stationery to promote a symposium for which he received compensation. See Gordon v. State
of Florida, 609 So. 2d 125 (Fla. 4th DCA 1992). However, it is significant to note that this case
consisted of egregious facts; the commissioner was using the stationery on behalf ofNova University
for whom he was doing consulting work. See In re James K. Gordon, Commission on Ethics Final
Order and Public Report Upon Mandate of the District Court of Appeal (March 11, 1993). In other
words, the commissioner was using city stationery to ben~fit a private entity that was employing him
for compensation.
Other opinions of the Commission on Ethics provide some guidance on an elected official's
ability to distribute information with his or her name on it. In CEO 77-175, the Commission on
Ethics opined that it would not be a violation of Section 112.313(6) if a state senator distributed a
brochure entitled "The FlOFida Senate" with his name stamped inside to school and civic groups
upon their request. Further, in CEO 77-45, the Commission on Ethics also opined that a member
of the Florida House of Representatives could enclose a business card (paid for at his expense)
containing his picture, name, public office, political party, slate district, and telephone number in
correspondence to his constituents. -
Inherent in the many duties of all elected officials is the duty to meet and communicate with
the official's constituents in a variety of personal, business, and government environments and
situations. As individuals elected by the community to public office, these individuals carry with
them their public title and persona in all of these environments and situations. As such, the
distribution of city business cards by ele'cted officials in any of these environments or situations is
consistent with the official's proper performance of his or her official duties because the business
cards serve as a means of identifying the name and. status of the elected official, regardless of
whomever the card is presented to or wherever it is presented. Therefore, the distribution of city
business cards in non-governmental environme!lts or situations, in my opinion, is not a per se corrupt
use of the official's position or of government property or resources under Section 112.313(6),
Chris Anderson, Esq.
Commission on Ethics
State of Florida
February 5, 2001
Page 5
Florida Statutes, even if the business cards were obtained by the elected official at city expense.
CEO 77-45 is consistent with this conclusion.
Furthermore, business cards are very personal in nature in that they are not transferable from
one person to another for use, unless the persons share the same name, official title, and other
information that is printed on the card. That, obviously, is an extremely unlikely event. Thus, city
business cards, like any business cards, are personal to the individual for whom the card is printed,
regardless of whether the elected official pays for the business cards himself or herself, or whether
city funds are expended to pay for the cards.
Since business cards are personal in nature, they differ greatly from business or government
stationery. Business or government stationery is used to convey an official message or position of
the particular business or governmental entity. Business cards, on the other hand, do not ordinarily
convey any message or position; rather, business cards m,erely contain identifying information about
a particular individual who represents the particular entity in some capacity. Therefore, the legal
authority regarding the use of government stationery is inapplicable to the issue of the propriety of
distributing city business cards and should not be considered.
It is possible to conjure up a scenario in which the distribution of a city business card,
coupled with some other act or omission on the part of th_e el~cted official distributing the business
card, may be corrupt under Section 112.313(6), Florida Statutes, and therefore subject to analysis
under the Florida Ethics Code. It is my opinion, however, that the Code would be trivialized and
inappropriately applied if such analysis were automatically required in order to address the simple
act of distributing a city business card for purposes of introduction, identification, and llU01:mation
in non-governmental. environments or situations. It seems a great disservice would be done if elected
city officials were'put in a position of being afraid to reveal their identities and the fact that they are
elected city officials simply because the, situation in which they are involved is not entirely
government related. It seems, rather, that elected city officials should have the discretion to
determine when opportunities to promote the city present themselves, regardless of whether the
environment in which such opportUnities arise is private or public in nature.
Your guidance and opinion regarding this issue yYill be greatly appreciated.
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.IU. 14 1991
BI!:FOR& THE
STA"&'! OF l'LORIDA
COMMISSION ON ETHICS
OOMrJ!ISSIOH ot~ ETl.;1CS
In re JOHN REED BUCKLEY,
)
)
)
)
)
)
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CONFIDENTIAL
Respondent.
Complaint No. 90-249
RECOMMENDATION OF LEGAL INSUPPICIENCY
UPON REVIEW of this complaint, I find as follOws;
1. This complaint, which inc:ludf!s several at.tachments, was
filed unde~ oath and in proper form by JamesW. Kissick and Dean
Hebrecht, Vice Chai~an and Secretary, respec~iYely, of the'
ManaSota
Aviat ion Action Council Investigative Conuni ttee. of
Bradenton, Florida.
2. The Respondent~ John Reed Buckle~, allegedly serves as
Secretary-Treasurer of the Sarasota-Manatee Airport. Authority and
.11eged1r served as Chair~an of thet Authority.
3. The comp1aint alleges that the Respondent used his
Authority business cards, which were paid for with public funds, to
p~omote the candidacy of persons seeking seats on the Authority, by
y~iting the names of p~eferred candidates on the cards and handing
the cards out at gatherings.
4. Section 112.313(6), P'lodda Statutes, provides as folloys:
MISUSE O~ PUBLIC POSITtON.--No public officer
or employee of an agency sball corruptly use or
attempt to us~. hi8. official poSition or any
property or :~.sourc. vhleh mey be vitbin his
trust, or perf~ra': .his . official duties. to
secure 4 sptct~~ ~rivilIge, benefit, or
exemption tor hi...I! or others. This 'section
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shall not be construed to conflict with ~.
104.31.
For purposes of this provision, the te~ .corruptly. is defined as
follo....s:
'Corruptly' ~ean. done vith a vrongful intent
and for the purpose of obtaining, or
compensating.or receiving compensation for, any
benefit resulting from some act or omisslon of
a public servant which Is inconsistent vith the
proper performance of hi. public duties.
[Section 112.312(7), Florida Statutes.]
5. Allegations nearly identical to those stated ~bove vere
made against the Respondent in Complaint NO. 90-229, In re John
Reed Buckley, and vere dismissed by the commission on r:thics as
being legally insufficient. In this complaint, as in Compl.aint No.
90-229. the above allegations do not contain sufficient facts to
indicate that the Respondent violated Section 112.313(6'. It is
not alleged how the Respondent's conduct vould be considered
~corrupt. for purposes of the Code of EthiC$.
There are no
allegations that the Respondent acted with a vrongful intl!nt, nor
that his actions vere undertaken for the purpose of obtaining Bny
benefit resulting from some act which would be inconsistent with
the proper perfonnanc@ of bis public duties. Thus. the allegations
above are insufficient to charge a violation of Section 112.313(6),
Florida. Statutes. In two other recent cases, Complaint No. 69-45.
In re John Curlee (state trooper appearing in uniform ina campaign
ad for a State Senate candidate), and Comp1~int No. 90-71. In re
Ilene ~ieberman (mayor endorsing seve~a1 c~ndidates for the to....n
council on letterhead that appeared to be similar to that of the
tovn's but vas not paid for with public funds), the Commis3ion
determined that the Code of Ethics vaS not violated.
6. Secondly, the complaint alleges that the Respondent lent
his name and official Authority title for use in newspaper
ejvertisements promotino. the candidacy of a person seeking a seat
.i:~". .
on the Authority. ~inc. the Respondent's name is his own and does
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not belong to the Authority, it is not public property or a public
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resource vithin his trust, the misuse of which vould cnnstitute a
possible violation of Section 112.313(6). rurthe~, since the
Respondent's ^uthority title is A part of his persona or identity
as an individual, the use of such on behalf of candidates does not
violate Section 112.313(61. see Complaint No. 89-45, In re Jo~n
Curlee. In addition, allegations nearly identical to those stated
in this paragraph vere, found by the Commission to be legally
insufficient in Complaint No. 90-229, In re John Reed Buc~ley.
Thus, the allegations referenced in this pa~agraph are insclficient
to charge a violation of Sectlon 112.313(6', Florida Statutes.
7. The complaint further alleges that the Respondent placed
campaign materials of a candidate for the ^uthority ;n tile
Authority's .staff area,. This allegation in and of itself,
without further allegation of, for e~a~ple, the coercion of staff
by the Responaent to vote for the candidate. fails to charge ~
possible violation of S.ection 112.313(61.
B. It also is alleged that
contributions te two eandidates
the - Respondent made ~onetary
fo~ the Authority, that the
Respondent is listed os a ~etiree on the candidates'. cont~ibution
~eports, and that the Respondent is -dependent" on one oC the
candidates "for an unusual request to be retroactively reinstated
(for sever~l years) on the Airport Authority's Employee Insurance
Program.. Alleg&tions of campaign contributions, standing alone.
do not charge a possible violation of the COde of Ethics for Public
of!icers and Employees. Likewise, allegations of inac;urate
occupatior.al designations on campaign contributlon reports 40 not
charge a possible violation. The portion of this fourth allegAtion
oC the compl.int concerning lnsuronce locks sufficient facts,
detail, and clarity to charge a possible violation of the Code of
Ethics. and further does not indicate that the Respondent used or
attempted to u~e his official position.
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9. The complaint also alleges that a candidate for the
Authority ~eceived a campaign contribution from a cont~dctor ~ho
was selected by the Authority to provide a flight information and
baggage display system and that the Respondent "championed as an
agenda item~ said selection. Further, the complaint alleges that
th~ same candidate received another campaign contributio~ from an
out-of-state business. Inasmuch as there are many legiti~~te
reasons and motives tor a public officer advancing or promoting the
selection oC a particular contractor to perform services tor his
governmental entity, and since the complaint does not allege. for
example. that the Respondent received unauthorized ~ifts or
compensation in exchange tor his alleged promotion of the selection
of the contractor, this allegation fails to charge a possible
violation of the Code of Ethics. In addition, a campaign
contribution alone does not indicate a possible violation of the
Code of Ethics.
10. Additionally, it is' alleged that a noise abatement
contract was Avarded by the Authority, to "a mOre e~pensive
competitor~ and that such avard vas made .under the sponsorship of-
~he Respondent. Ag5in, as there are many legitimate reasons for
selecting a particular contractor or business to supply services or
goods to a public officer's goye~nmental entity, the allegation of
such an avard. standing alone, does not charge a possible violation
of the Code of Ethics.
11. The complaint further alleges that the Respondent
commented .to the Treasurer that her employment contract is to'be
unapproved (held hostage) including its financial obligation until
such time as pay raises for three select staft employtes ~ere
realized.- This allegation does not state sufficient facts to
indicate a possible violation of the Code of Ethics. as there is no
indication how the Respondent's alleged action vas inconsistent
with the proper performance of his public duties, belo~d th~
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general allegation that his ro~e ~hould be polley-making, rather
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than administrative.
12. The complaint all~ges th~t the Respondent exhibits
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tardiness in submitting claims t~ the Authority for
travel
reimbursement, in violation of the rules of the Authority, Section
112.313(6), set out above, is the only provision of the Code of
Ethics arguably applicable to this allegatio~. While an allegation
of making false application for reimbursement or claiming expens~s
not actually incurred vould charge a possible violation of Section
112.313(6), mere late filinq for reimbursement for actual and
proper expenses does not charge such a violation because expenses
actually and prQP~rly incurred do not amount to a
special
privilege, benefit, or exemption within the meaning of that
section. A similar allegation was made against the Respondent in
Complaint Nc. 86-61, In re John Reed Buckley. That Complaint was
dismissed oy the Commission with a finding of no probable cause.
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In addition, the complaint
various
lI'lalces
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accusations which
may allege violations of open government or
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election lavs but which do not charge possible violations of the
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Code of Ethics.
Several other allegations are made vhich lac~
sufficient detail, facts, or clarity to charge possible violations
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of the Code of Ethics.
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WHEREFORE,
recommend that this compl&int be found le9ally
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ins~(fjcient and dismissed without investigation.
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Bonnie J. Wi iams
Executive Director
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Received: 2/12/01 11 :30AM;
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.
DATE FILED
'a M 1991
BEFORE THe
STr\TE or PLORIDA
C~ISSION ON ETHICS
CQI6Its..~ ON El}8CS
In re JOKN REED SUCKLEY.
Respondent.
Comp18int ,"0. 90-249
pue~rc REPORT ANn ORDER DISMrSSI,"G COMPL^rNT
On Friday, July 19, 1991, the Commission on Ethics met in
executive session and considered this
complaint
for
leyaI
sufCicillncy pursuant to Comml.9~lon Rule 34-5.002, LA.C. The
Commission's reviev vas limited to questions of ju~lsdi~tion oC the
Commission and of the adequacy of the details of the cOmp'hiM, to
allege a violation of the Code of Ethics for Puhlic Officers a~d
EmployellS.
No factual, Investiqatlon preceded the reviev, and
therefore the Commission's con~lu810ns do not r-eflect on the
accuracy of the allegations of the complain;.
The Commission voted t.o adopt the legal SUfficiency analysis of
its ~xecutive Director, a copy of vhlch is attached.
r\ccord ing ly,
thi~ complaint is dismissed for failure to constitute a legally
s~CficieGt complaint vith the issuance of this public report, ~h~ch
shall includ~ the complaint and all documents f@lated to the
comr1<1int.
ORDERED by the State of Florida Commission on Ethics meeting 1n
executive session on July 19, 1991.
,~ ~~. I~I
Da "
~8~
Dean Bunch
Chaiman
eCl Mr. John Reed Buckley, R~spO~dent
Hr. James ~. Kissick and Mr. Dean Hebrecht. Complaina~t~
P. 007
Received:
2/ 1 2 /01 1 1 : 30AM ;
850 488 3077 ,> Brown, Ward,Salzman & Weiss P.A.
Page 8
FEB. -!2' 01 (MON) 12:27
FL COMI~,. ON ETH I C
TEL: 850 '.
3077
p, 008
Received:
2/1 2/01 1 1 : 31 AM ;
850 488 3077 ,> Brown, Ward,Salzman & Weiss P.A,;
Page 9
FEB. -12' 01 (MONl 12:28
PL COMil,. ON ETH I C
TEL: 850 '.
3077
P. 009
Received:
2 / 1 2/01 1 1 : 32AM ;
850 4BB 3077 -> Brown, Ward,Salzman & Weiss P.A.;
Page 10
PEB.-~2'OI(MON) 12:29
FL COMk ON ETH Ie
TEL:850 ~,J 3077
P. 0 I 0
COMMISSION AGENDA
ITEM C
Consent
Informational
Public Hearing
Regular X
March 12,2001
Meeting
&J
Mgr. 1 Dept.
Authorization
PURPOSE: The City Attorney wishes to inform the Commission about his research into the
matter of business card use, and asks for the Commission's direction in requesting a formal
opinion on the matter from the Commission on Ethics.
CONSIDERATIONS:
The Mayor and City Commissioners have expressed a desire to use city business cards
for identification purposes during the course of handling their private business and
personal affairs.
Research by the City Attorney has revealed that no legal authority or opinion exists
expressly addresses this issue.
To acquire such a formal opinion, the City Commission must determine whether they
want to formally request one from the Commission on Ethics, and to authorize the City
Attorney to do so.
FUNDING REQUIRED: Time and expense costs to be incurred by the City Attorney,
which is undetermined at this time.
RECOMMENDATION: It is recommended that the City Commission formally vote on
requesting a formal opinion from the Commission on Ethics
regarding the use of city business cards for personal and
private affairs.
March 12,2001
City Commission Regular Agenda
Item "C"
A TT ACHMENTS:
Letter, dated February 27, 2001, from City Attorney Anthony Garganese to
City Manager Ronald McLemore
Letter and legal citations, dated February 5, 2001, from City Attorney
Anthony Garganese to Chris Anderson, Esq., State Commission on Ethics
COMMISSION ACTION:
Received:
2 11 2 1 0 1 1 1 : 32AM;
850 488 3077 ,> Brown, Ward,Sa~zman & Weiss P,A.;
Page 11
IN ETHIC
TEL:8S0 t,
3077
P. 011
:,:;':' ,"
77,175
COMMISSION ON ETHICS ADVISORY OPINIONS
authority recommends to the freeholders and electors within the area the approval of an
ad valorem tax up to 2 mills by referendum, which tax is levied by the county "as a
special taxing district levy authorized under Section 9 of Article VII of the State
Constitution." Section 9, Ch. 77-588. In addition, s. 5 of the act specifies:
The board is hereby constituted a body corporate and an agency of the city.
Performance by the board of its duties and exercise of its powers are hereby
designated municipal functions and shall be so construed. [Emphasis supplied.]
Were it not for this last language. we would find the authority to constitute a political
subdivision of the state; because of its resemblance to a special taxing district. However,
the act seems to intend that the authority be construed as an agency of the city rather
than as a separate political subdivision. Nevertheless, under either organizational
framework, the members of the authority are elected to office in a political subdivision
of the state, whether that subdivision be the city or the authority itself.
Accordingly. we find that the memberS of the Lakeland Downtown Develofment
Authority are "local officers" 'for plirposes of filing financial disclosure under part I I, Ch. .
112, F. S.
CEO 77-175-November 10, 1977
CONFLICT OF INTEREST
SENATOR DISTRIBUTING SENATE PUBUCATION TO
SCHOOL AND CIVIC GROUPS
.'.
'"
To: George A.. Williamson, Senator, 29th District, Ft. Lauderdale
Prepared by: Phil Claypool
.... '.
". .
QUESTION:
Would a prohibited con1Jjct of interest be created were I, a state
senator, to distribute a brochure entitled "The Florida Senate" with my
name stamped inside to school and civic groups upon their request?
SUMMARY:
No "1D.isuse of public position, 88 described and prohibited by So
112.313(6). F. S.. Is deemecf to e~ where a state senator .transmits copies
of a brochure entitled "The Florida Senate" which have been stamped
~th his name to persons or groups which have requested copies of such
document. The stamped message Is deemed to serve a function similar to
that of a cover letter or a business card. Reference is made to CEO 75.45.
SeCtiOD 112.313(6) potentially would be violated, however, were the
brochure to be transmitted unsolicited BB, for e:u.mple, part of an election
campaign effort. As the jurlsdlctlon of the Conunission on Ethics is
limited to 8. 8, Art. II of the Florida Constitution and part m, Ch. 112,
F. S.. the Attorney General and the Division of Elections should be
consulted 88 to the potential applicability of other statutes..
Your question is answered in the negative. . .'
In your letter of inquiry you advise that you have received numeroWl requests from
local school and civic groups for a publication known as "The Florida Senate" and thatiyou would like to distribute some of these brochures with an added message to be
stamped inside the back cover which would, read, . "Compliments of Senator George A.
Williamson, District 29, Fort Lauderdale, Florida." In a telephone conversation with our
staff, your aide advised that these brochures are given free of charge to visitors to the
868
:"-
,.,\":, .,.
':.;-
COMMISSION ON E'THICS ADVISORY OPINIONS
77,176
Capitol and have been given previously by you without your name stamped to persons
requesting copies.
The Code of Ethics for Public Officers and Employees provides in relevant part:
MISUSE OF PUBUC POSmON.-No public officer or employee of an
agency 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. . , .
[Section 112.313(6), F. S. 1975.]
In turn, the term "corruptly" is defined in s. 112.312(7), F. S. (1976 Supp.), to mean
done with a wron!liu] intent and for the purpose of obtaining, or
compensating or receivlOg compensation.for, any benefit resulting from some
act or omission of a public servant which is inconsistent with the proper
performance of his public duties. '
Under this provision, we see nothin~ wrong with your sending copies of "The Florida
Senate'~ which have been stamped Wlth your name to persons or groups which have
requested copies. Where copies have been requested. the stamped message would serve
a function similar to that of a cover letter or a business card. See CEO 75-45, a copy of
which is enclosed. However, we perceive a possible violation of this provision were copies
to be sent Unsolicited as, for example, part of a campaign.
Accordingly, we find that the Code of Ethics for Public Officers and Employees does not
prohibit you from distributing the brochure "The Florida Senate" with your name
stamped inside to school and civic groups upon their request. As our jurisdiction is
limited to s. 8, Art. II of the Florida Constitution and the Code of Ethics for Public
Officers and Employees, you may wish to obtain the, opinion of. the Elections Division of
the Department of State or of the Attorney General as to whether the practice you have
described would be subject to elections code regulations. .
.:,.
CEO 77-176--December 14, 1977
CONFLICT OF INTEREST
FIRE AND RESCUE DISTRICf BOARD MEMBER LEASING LAND
TO BOARD FOR USE AS SUBSTATION FOR NOMINAL SUM
To: Charles A. Ball, Chairman. Tice Fire and Rescue District Board, Fort Myers
Prepared by: Phil Claypool
QUESTION:
Would a prohibited condIct of interest exist were I, the chairman of a
fire and rescue district board, to lease to the board from year to rear for
a nominal sum property for use as a substation with the provisIOn that
upon abandonment of that use, any improvements would revert to me?
;:.-
I:.
,.
i
SUMMARY:
Section 112.313(3), F. S., prohibits a I?ublic officer from acting In a
private capacity to lease any realtr to IUs public agency. Therefore, the
chairman of a fire and rescue district board is prohibited from leasing to.
the board from year to year, at $1 per year, property for use as a fire
substation where the contract stipulates that, upon abandonment,
improvements on the property revert to him. Although s. 1 of Ch. 77-349,
Laws of Florida, exempts transactions of $500 or less between a public
officer and his agency, it is possible that abandonment of the property
869
COMMISSION ON E:fHICS ADVISORY OPINIONS
CEO 75-45-March 5, 1975
STANDARDS OF CONDUCT
PROPRIETY OF STATE REPRESENTATIVE DISTRIBUTING
"BUSINESS" CARD IN CORRESPONDENCE
TO HIS CONSTITUENTS
To: Jerry G. Melvin. Representative. 5th District, Tallahassee
Prepared by: Gene L "Hal" Johnson
QUESTION:
". -:
May I enclose a business card printed at my own expense containing a
picture of me; my name, public office, political party, state district, and
teiephone number; and various consumer lIB8istance telephone numbers
in correspondence to my constituents?
SUMMARY:
The Code of Ethics, part III, Ch. 112, F. S., as amended by Cb. 74-177,
Laws of Florida, does not prohibit a state representative from enclosing'
a card in correspondence with constituents. 'In this instance, Rep.
Melvin's card belll'8 the representative's phone numbers. photograph,
political party, ,state district, and various consumer assistance groups'
telephone numbers. Additional Information as to whether such a card Is
subject to elections, code regulations should be obtained from the
Elections Division of. the Department of State' or from the Attorney
General. . - ' .
Your question is answered in the affirmative.
The Code of Ethics, part III, Ch. 112, F. S., as amended by Ch. 74-177, Laws of Florida,
contains no provisions which would prohibit you from printing and using such a card in
this manner. However, you may wish to obtain an opinion from the Elections Division of
the Department of State or the Attorney General as to whether such a card is subject to
elections code regulations. .
CEO 75-46-March 6, 1975
PUBLIC OFFICER
APPOINTED MUNICIPAL JUDGE
To: Marvin E. Silverman, Municipal Judge, Sarasota
Prepared by: Patricia Butler
QUESTION:
Am I, as an appointed municipal judge, a public officer within the
meaning of part III, Ch. 112, F. S., as amended by Cb. 74-177, Laws of
Florida, and therefore subject to the disclosure provisions applicable to .
public officers?
153
:.",..".
75-45
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http://www.ethics.ot.lte.fl.usl\99.44.49.\ IIcomplaihts/9\/9\ %2D038.html
BEFORE THE
STATE OF FLORIDA
COMMISSION ON ETHICS
CEO 91-38--July 19, 1991
CONFLICT OF INTEREST
CITY COUNCIL MEMBER USING STATIONERY SIMILAR TO OFFICIAL CITY
STATIONERY AND NOT PURCHASED WITH PUBLIC FUNDS FOR PURPOSES NOT
DIRECTLY RELATED TO CITY BUSINESS
To: (Name withheld at the person's request.)
SUMMARY:
No prohibited conflict of interest is created automatically by a city council member's use of stationery similar to the city's official
stationery for campaign, fund-raising, and personal purposes, when the stationery is not paid for with city funds. However, the
use of such stationery in a particular context may constitute a corrupt misuse of official position in violation of Section
112.313( 6), Florida Statutes, to the same extent as the use of plain stationery in a letter that refers to the council member's public
position.
QUESTION:
Does the Code of Ethics for Public Officers and Employees prohibit a city council member from using privately purchased
stationery bearing a reproduction of the image of the city's seal, the title of the Council member, the name of the city, the city hall
address and telephone number, and a statement that the stationery was not paid for with city funds, for purposes not directly
related to city business?
Your question is answered in the negative.
In your letter of inquiry, telephone conversation with our staff, and further written materials transmitted to our staff, you advise
that. . . . , a member of the City Council of the City of Lauderhill, inquires whether the Code of Ethics prohibits her from using
stationery bearing a reproduction of the seal of the City, her title, her name, the name of the City, the address and telephone
number of City hall, and a statement that the stationery was not paid for with City funds, for campaign purposes, fund-raising
purposes, and personal letters. You further advise that the stationery would not be paid for with public funds.
Section 7.03 of the City's charter provides:
The city clerk shall act as the clerk of the council and shall perform such other duties as may be prescribed by the mayor. As
clerk, s/he shall have custody of the public records of the city, shall be official custodian of the seal of the city and shall affix the
said seal to all instruments requiring same.
It is the position of your office that this provision of the City Charter prohibits the use of the actual impression seal of the City by
anyone except the City Clerk, but that the Charter does not in any way prohibit the use of the seal by elected officials for other
purposes, such as the reproduction of the image of the seal on stationery utilized by the elected officials. The stationery in
question would have the image of the seal reproduced on it and would not bear the impression seal.
Section 112.313(6), Florida Statutes, is the provision of the Code of Ethics applicable to your inquiry. It provides:
MISUSE OF PUBLIC POSITION.--No public officer or employee of an agency 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.
For purposes of this provision, the term "corruptly" is defined'as follows:
'::091.'8
htlp://www.ethics..ot.lte.fluslI99.44.49.11/complaints/91/9 I %2D038.hlIl11
'Corruptly' means done with a wrong1ul 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
public duties. [Section 112.312(7), Florida Statutes.]
This provision prohibits the Council member from corruptly using property or resources within her trust to secure for herself-or
others a special privilege, benefit, or exemption.
Arguably, use of the City seal, one's official title, and the name of the City even on stationery not paid for by City funds
constitutes a use of public position that may be violative of Section 112.313(6), when such use has no public purpose. However,
a situation virtually identical to the facts you present recently came before this body in the context of a complaint, In re ILENE
LEIBERl'vIAN, Complaint No. 90-71, In that matter, the Mayor of the City of Lauderhill used stationery the same as that
proposed for use by the Council member, with the title and personal name being the only differences, for writing City electors
and recommending to them particular candidates in a City Council election. There, we found that probable cause did not exist to
believe that the Mayor had corruptly misused her official position. Previously, we found in In re John Curlee, Complaint No.
89-45, that a highway patrolman's wearing of his uniform while appearing in a television commercial for a Florida Senate
candidate did not violate Section 112.313(6). The argmnent put forth by the highway patrolman was that his uniform was part of
his persona and that its use was protected as constitutional free expression. It therefore seems equally true, under the facts before
us, that the Council member's use of such stationery, provided it is not paid for with City funds, is not automatically prohibited
by the Code of Ethics.
Weare of the opinion that whether a corrupt misuse of official position has occurred in a given situation depends on how and for
what purpose the stationery will be used, rather than upon the fact of its use. In terms of whether the Council member's letter
would be a corrupt misuse of position, we see no difference between her using the proposed stationery and her using plain
stationery for a letter in which she refers to herself as a Council member. Either way, the recipient of the letter is informed of the
Council member's public position. This may be appropriate, as in the political contexts noted above, or it may be inappropriate,
for example, if the letter were being sent to settle a strictly private dispute with a debtor or creditor.
While we do not possess the authority to make a final interpretation or adjudication of the meaning of the provision of the City
Charter quoted above, there does seem to us to be a distinction between use of the City's official impression seal on stationery or
documents when such use is not for a public purpose and use of the image of the seal in printed form on stationery not paid for
by public funds. Use of the impression seal for other than public purposes would inhibit its availability for use for public
purposes and could constitute or read to fraudulent authentication of documents as official records or true and correct copies of
public records.
Further, the Legislature has recently enacted Chapter 91-59, Laws of FlorIda, which provides:
Section 1. The governing body of a county or municipality may, by ordinance, designate an official county or municipal seal.
The manufacture, use, display, or other employment of any facsimile or reproduction of the county or municipal seal, except by
county or municipal officials or employees in the performance of their official duties, without the express approval of the
governing body is a second-degree misdemeanor, punishable as provided in section 775.082 or section 775.083, Florida Statutes.
Section 2. This act shall take effect upon becoming a law.
If the City Council of Lauderhill designates an official municipal seal pursuant to this law, you should request another opinion
from us, as this law would appear to limit your use of a reproduction of the City seal on stationery not used for official business.
Accordingly, we find that use of stationery not purchased with public funds and bearing a reproduction of the city's seal, the title
of the council member, the name of the city, the city hall address and telephone number, and a statement that the stationery was
not paid for with city funds, for purposes not directly related to city business, is not prohibited by the Code of Ethics for Public
Officers and Employees. . .
??
Page 4 CEO 91-38
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GORDON v. STATE COM'N ON ETHICS
Cite .;'609 So.2d 125 (FI..App.4 Dlol. 1992)
Fla. 125
guidelines departure sentence without writ,
ten reasons for it, as we held in State v.
Devine, 51:2 So.:2d 1163 (Fla. 4th DCA), rev.
denied, 519 So.2d 988 (Fla.1987), then it
obviously follows that fourth,category er'
rors do not make a sentence illegal. An
illegal sentence cannot become enforceable
simply because the state agrees to it. The
court's opinion today does not satisfactori,
ly, for m~' taste, distinguish Gonzalez, and
our decision is in direct conflict with it.13
When our court hears different music than
another court on the same issue, we should
fully describe its melody and meter.
To expand on Judge Schwartz's reason,
ing, I think that we should not discount the
fact that the right of the state to appeal an
adverse order or judgment in a criminal .
case was \'irtually prohibited at common
law. Slale Z'. Burns, 18 Fla. 185, 187
(1891). As the supreme court concluded in
State 1.', Creighton, 469 So.2d 735 (Fla.
1985), the statutes allowing state appeals in
criminal cases are strictly limited and care,
fully crafted exceptions designed to provide
appellate review to the state where it is
necessary as a matter of policy and where
it does not offend constitutional principles.
Cf l\'!orth Carolina v. Pearce, 395 U.S.
711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969)
(harsher sentence upon resentencing after
previous reversal may be imposed only
upon objective information concerning iden,
tifiable conduct by defendant occurring af,
ter original sentencing); Morganti v.
State, 573 So.2d 820 (Fla.1991) (trial judge
may not increase sentence upon resentenc-
ing unless increase is based on conduct
Occurring after imposition of original sen'
tence).14 The strictly controlled gr~nts of
appellate rights to the state in criminal
cases must be narrowly read and limited to
their precise provisions.
The fact that the state might have suc'
cessfully appealed Gartrell's original sen'
tence, see Cheshire v. State, 568 So.2d 908,
13. II logically follows that I agree with the
COUrt's decision 10 certify the question as one of
great public importance.
14. ,\10reover. if 10o.lenient sentences imposed as
a result of misapplication of legal principles
truly constituled illegal sentences. then deci-
F1a,Cases 60~09 So.2d-15
913 (Fla,1990) (reversal of downward de-
parture sentence imposed without written
explanation), does not mean that the com,
mon law and constitutional policy can be
evaded by the simple expedient of post,
conviction motion practice by the state. If
defendants are precluded from raising in a
collateral attack non,constitutional errors
in their conviction and sentence that could
have been raised on direct appeal but were
not, there is little reason to suppose that
the state can do so. There is not a single
. case considering the subject directly that
holds that the state can abandon the appel,
late right and achieve the same end by rule
3.800(a). Gonzalez and public policy are
explicitly to the contrary.
I dissent.
James K. GORDON, Appellant,
v.
STATE of Florida COMMISSION
ON ETHICS, Appellee.
No. 91-0202.
District Court of Appeal of Florida,
Fourth District.
Nov. 25, 1992.
Rehearing and Certification
Denied Dec. 30, 1992.
City commissioner appealed from final
order and public report rendered by the
Commission on Ethics holding that he had
violated state law. The District Court of
Appeal held that: ~1) commissioner violated
state statute by virtue of his employment
with city franchisees; (2) commissioner vio-
sions such as Brown v. Slale, 521 So.2d 110
(Fla.1988) (erroneous imposition of sentence
otherwise allowed by law does nOI permit in.
crease of sentence to one legally allowable at
first sentencing after appellate review), would
make no sense.
Q
'"
126 Fla.
609 SOUTHERN REPORTER. 2d SERIES
-i i ~ i
lated state statute when he used city sta'
'tjonery to promote symposium for which he
received compensation; but (3) while issue
of whether city commissioner violated stat,
ute proscribing misuse of public position
may have been mixed question of.law and
fact, Commission on Ethics, having adopted
hearing officer's findings of fact, could not
reject hearing officer's conclusion that no
violation occurred, by simply treating that
finding as a legal conclusion.
Affirmed in part and reversed in part.
-------
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1. Municipal Corporations <P170
City commissioner violated state stat,
ute proscribing conflicting employment or
contractual relationship, by virtue of his
employment with two city franchisees.
West's F.S.A.. ~ 112.313(7).
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2. Municipal Corporations <P170
City commissioner violated state stat,
ute proscribing misuse of position, when he
used city stationery to promote symposium
for which he received compensation.
West's F.S.A. 9 112.313(6).
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3. Administrative Law and Procedure
<P791
Officers and Public Employees <>=>11 O.
Commission on Ethics' standard of re'
view is whether no competent, substantial
evidence existed to support hearing offi,
cer's findings of fact. West's F.S.A.
S 120.57(l)(b)lO.
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4. Administrative Law and Procedure
<P796
Municipal Corporations <P170
While issue of whether city commis,
sioner violated statute proscribing misuse
of public position may have been mixed
question of law and fact, Commission on
Ethics, having adopted hearing' officer's
findings of fact, could not reject hearing
officer's conclusion that no violation oc,
curred, by simply treating that finding as a
legal conclusion. West's F.S.A. 9 112.,
313(6).
i
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5. Administrative Law and Procedure
<P796
Officers and Public Employees <PlIO
Commission on Ethics may not reject
finding which is substantially one of fact
by simply treating it as a legal conclusion.
Michael W. Moskowitz and William G,
Salim, Jr., of Borkson, Simon, Moskowitz &
Mandell, P.A., Fort Lauderdale, for appel.
lant.
Philip C. Claypool, General Counsel,
Com'n on Ethics, and Craig B. Willis, Asst.
Atty. Gen., Department of Legal Affairs,
Tallahassee, for appellee.
PER CURIAM.
James K. Gordon appeals from a final
order and public report rendered by the
State of Florida Commission on Ethics dat,
ed December 20, 1990. The order held that
appellant, while a member of the Coral
Springs City Commission, violated sections
112.313(6) and 112.313(7), Florida Statutes
(1989). The order recommended that appel,
lant suffer reprimand by the governor, pay
a civil penalty in the amount of $12,200.00,
and pay a restitution penalty in the amount
of $50.00 to the State of Florida.
[1. 2] We affirm the commission's rul,
ing that appellant violated section 112.,
313(7) by virtue of his employment with
two City of Coral Springs franchisees. We
reject appellant's argument that his reli,
ance on the city attorney's advice should be
construed as a complete defense to these
charges. We also affirm the commission's
conclusion that appellant violated section
112.313(6) when he used city stationery to
promote a symposium for which he re'
ceived compensation.
Appellant contends that the commISSIon
failed to apply the correct standard for
review of the hearing officer's findings of
fact when it concluded that appellant's ac'
tions regarding a sign variance and a devel,
oper's agreement violated section 112.-
313(6). He also contends that the commis'
sion's conclusions of law constitute find,
ings of fact which conflict with the heari:l~
officer's findings.
-
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.,1.1
GORDON v. STATE COM'N ON ETHICS
Clle as 609 So.2d 125 (Fla.App.4 Dlst. 1992)
Fla. 127
[3] Appellant correctly argues that the
commission's standard for review is wheth,
er no competent, substantial evidence exist,
ed to support the hearing officer's findings
of fact. Section 120,57(l)(b)10, Florida
Statutes (1991), provides:
The agency in its final order may reject
or modify the conclusions of law and
interpretation of administrative rules in
the recommended order, but may not re'
ject or modify the findings of fact unless
the agency first determines from are,
view of the complete record, and states
with particularity in the order, that the
findings of fact were not. basea upon
competent substantial evidence or that
the proceedings on which the findings
were based did not comply with essential
requirements of law.
[4] The hearing officer concluded that
appellant did not violate section 112.313(6)
with reference to the approval of the sign
variance. He made the following express
findings of fact: Appellant "never directed
Andrea Moore to take any action to ap'
prove the requested K-Mart sign vari,
ance;" "did not directly threaten her re'
garding her actions relative to the K-Mart
sign variance, in the context of indicating
that if she took any particular action with
respect to the sign variance that a particu,
lar consequence would follow;" and "never
directly advocated or offered to advocate
the position of the CSJV [Coral Springs
Joint Venture] with City staff or the City
Commission." Notwithstanding the com'
mission's adoption of the hearing officer's
findings of fact, the commission granted
the advocate's exception to the hearing of,
ficer's conclusion regarding this charge.
The commission stated:
The Hearing Officer concludes in para,
graph 83 that the Respondent did not act
"corruptly," simply because the Respon'
dent believed that Ms. Moore's actions
were incorrect and because the criticism
of a city attorney, even if in harsh tones
of voice, was not inconsistent with the
proper performance of his public duties.
The Commission disagrees with this legal
conclusion. The fact that the Respon'
dent was acting under the erroneous be,
lief that the Assistant City Attorney's
actions were improper, by itself, does not
mandate the conclusion that the Respon,
dent did not act with "wrongful intent."
As the Advocate points out in his excep-
tion, the Respondent's criticisms related
to the development of property with
which he had private involvement, he
was attempting to direct how a member
of the City's staff should perform her
public responsibilities, and he lacked the
authority as an individual Commission
member to tell a member of the City
Attorney's Office how to perform her
job, These factors indicate that the Re'
spondent acted with wrongful intent and
in a manner that was inconsistent with
the proper performance of his public
duties.
The commission determined that it is a
violation for an individual city commission,
er, admittedly having a pecuniary interest
in the outcome of the matter, to approach
an assistant city attorney and discuss her
handling of that matter. The hearing offi,
cer felt that in the absence of threats,
promises or an order to perform in a cer,
tain manner, there was an absence of that
"corrupt intent" which would constitute a
violation. The commission, accepting the
factual matrix established by the hearing
officer's findings, nevertheless disagreed
that no violation' was m~de Qut by the
competent, substantial evidence.
(5) While the issue may be a mixed
question of fact and law, this court is com,
mitted to the view that the commission may
not reject a finding which is substantially
one of fact by simply treating it as a legal
conclusion. .We disapproved of this proce'
dure in Greseth v. Dept: of Health & Re'
hab. Serv., 573 So.2d 1004 (Fla. 4th DCA
1991), wherein we stated:
An administrative agency may not reject
the hearing officer's finding unless there
is no competent, substantial evidence
from which the finding could reasonably
be inferred. "The agency is not autho,
rized to weigh the evidence presented,
judge credibility of witnesses, or other-
wise interpret the evidence to fit its de,
sired ultimate conclusion." Heifetz v.
128 Fla.
609 SOUTHERN REPORTER. 2d SERIES
Dep't. oj Bus. Reg., 475 So.2d 1277,
1281-1282 (Fla. 1st DCA 1985)....
Furthermore, the agency's responsibili,
ty to determine if substantial evidence
supports the hearing officer's conclu'
sions cannot be avoided by labeling con,
trary findings as "conclusions of law."
Substituted fact finding, thinly disguised
as a conclusion of law, is wholly improp'
er. "[A]n agency's reliance upon its own
expertise to reverse a hearing officer's
finding of no violation may not be sus'
tained."
Id, at 1006-07 (citations omitted).
Accordingly, we reverse the commis,
sion's determination on this issue. In all
other respects we affirm the public report
rendered by the State of Florida Commis,
sion On Ethics.
DOWNEY, HERSEY and DELL, JJ.,
concur.
In re the ESTATE OF Harold VERNON.
Barry J. BENDES. Martin F. Brecker.
et al.. Appellants,
v.
I~J
George H. BAILEY, as Administrator
ad litem of the Estate of Harold
Vernon, deceased, Appellee.
No. 92-0988.
District Court of Appeal of Florida,
Fourth District.
Nov. 25, 1992.
Estate brought action for damages
against law firm, individual partners and
employees for professional malpractice.
The Circuit Court for Palm Beach County,
John D. Wessel, J., denied individual defen,
dants' motion to dismiss, and they appeal,
ed. The District Court of Appeal, Hersey,
J., held that individual defendants .
subject to state jurisdiction throucrh ~er:
t h., . . . '" 111E':r
par ners Ip s actIVIties and their 'e .
. . ::> rYICes
on case pendmg m state Court.
Affirmed.
Farmer, J., concurred In result.
1. Courts e=>12(2)
. Court is limited by both its state's per-
sonal jurisdiction statutes and by ConsUl\),
tional principles of due process in its deU?l"-
mination of jurisdiction,
2. Courts e=>12(2.5)
Even though nonresident may apP~:lr
to fall within wording of state long,arn:
statute, statute cannot be applied to obuir.
jurisdiction in the absence of the requisite
minimum contacts with the for<.:m sure,
West's F.S.A. 9 48,193.
3. Constitutional Law e=>305(5)
Courts e=>12(2.5)
While mere proof of anyone of se\'era.!
circumstances enumerated in state's Ion,;.
arm statute as basis for obtaining jurisilli.--
tion of nonresidents will not automatically
satisfy due process minimum contacts re-
quirement, implicit within several oi thi:'
enumerated circumstances are sufficient
facts which, if proven, without more. woulrl
suffice to meet due process requirement
U.S.C.A. Const.Amends. 5, 1.t; West'5
F.S.A, Const. Art. 1, S 9; West's F5...\.
9 48.193.
4. Courts e=>12(2.5)
Nonresident partners and employet.'$
of law firm working on estate being pro-
bated within state were subject cO sute
court jurisdiction by virtue of their partne,:,
ship's activities within state through o.>5l-
dent partners, and their specific cont;l('U.
with state through their services on ~
pending in state court. West',; F.~.:\.
1 ,,4
9 48.193; West's F.S.A. Canst. ,-\rt. ,~..
Nancy W. Gregoire and Edward .-\~ ua.
'1 CI "'\' ..../I1Ith.
tra of -B.uden, Barnett, i~ C 0::>1'.. - .
, F t Lat:dt'rdov('-
Schuster & Russell, P.A., or
for appellants.