08-001567EC In Re: Joseph Russo vs. * Status: Closed Recommended Order on Wednesday, March 4, 2009.

Summary: City Council member did not violate voting conflicts law when he voted on measures that affected property of which he was aware his clients were discussing the possible purchase.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

IN RE: JOSEPH RUSSO, ) Case No. 08-1567EC

)

Respondent. )

________________________________)

RECOMMENDED ORDER

Pursuant to notice, a public hearing was conducted in this

case on November 13 and 14, 2008, by video teleconference at

sites in West Palm Beach and Tallahassee, Florida, before Stuart

M. Lerner, a duly-designated Administrative Law Judge of the

Division of Administrative Hearings (DOAH).

APPEARANCES

For Advocate: James H. Peterson, III, Esquire

Office of the Attorney General

The Capitol, Plaza Level 01

Tallahassee, Florida 32399-1050

For Respondent: Albert T. Gimbel, Esquire

R. Gary Early, Esquire

Mark Herron, Esquire

Messer, Caparello & Self, P.A.

2618 Centennial Place

Post Office Box 15579

Tallahassee, Florida 32317

STATEMENT OF THE ISSUE

Whether Respondent, when he voted April 18, 2002, as a

member of the Palm Beach Gardens City Commission, on Resolution

54, 2002 and Resolution 57, 2002, relating to Parcel 6 and

Parcel 24, respectively, of the Mirasol development project,

knew that these measures would inure to the special private gain

or loss of a principal by whom he was retained and thereby

violated Section 112. 3143(3), Florida Statutes, as alleged in

the Order Finding Probable Cause, and, if so, what is the

appropriate penalty.

PRELIMINARY STATEMENT

On April 25, 2007, the Commission on Ethics (Commission)

issued an Order Finding Probable Cause in connection with a

citizen complaint filed against Respondent. The Commission's

order read, in pertinent part, as follows:

Based on the preliminary investigation of

this complaint and on the recommendation of

the Commission's Advocate, the Commission on

Ethics finds that there is probable cause to

believe that the Respondent, as a member of

the City Council for the City of Palm Beach

Gardens, violated Section 112.3143(3),

Florida Statutes, by voting as a member of

the Palm Beach Gardens City Council on

April 18, 2002, for Resolution 54, 2002,

when he knew that the measure voted on

inured to the special private gain or loss

of one of his principals. The Commission

further finds that there is probable cause

to believe that the Respondent violated

Section 112.3143(3), Florida Statutes, by

voting as a member of the Palm Beach Gardens

City Council on April 18, 2002, for

Resolution 57, 2002, when he knew that the

measure voted on inured to the special

private gain or loss of one of his

principals.

* * *

A formal notice of hearing on the matters on

which probable cause has been found will be

prepared and sent to the Respondent and the

Advocate. . . .

Pursuant to Florida Administrative Code Rule 34-5.010, on

March 27, 2008, the Commission referred the matter "by letter to

the Division of Administrative Hearings for the appointment of

an administrative law judge." The case was docketed as DOAH

Case No. 08-1567EC and assigned to Judge J. D. Parrish.

On April 10, 2008, the parties filed a motion requesting

that the instant case be reassigned to the same administrative

law judge assigned to hear DOAH Case No. 08-0782EC. A

telephonic hearing on the motion was conducted on April 14,

2008, by the undersigned (as the administrative law judge

assigned the case with the lowest case number, DOAH Case No.

08-0782EC). During the hearing, the parties in both the instant

case and DOAH Case No. 08-0782EC expressed their agreement that,

not only should the cases be heard by the same administrative

law judge, they should be consolidated for purposes of hearing.

Later that same day, the undersigned was reassigned the instant

case, and he thereupon issued an order consolidating it with

DOAH Case No. 08-0782EC for purposes of hearing. In his order,

the undersigned indicated that "[s]eparate recommended orders

will be issued in each case, however."

On November 11, 2008, the parties filed a Joint Prehearing

Stipulation, which included the following "facts which [were]

admitted and [would] require no proof at hearing" (Stipulations

of Fact):

1. Russo served as a member of the Palm

Beach Gardens City Council from 1989 to the

present.

2. Russo is subject to the requirements of

Part III, Chapter 112, Florida Statutes, the

Code of Ethics for public officers and

employees, for his acts and omissions during

his tenure as a member of the Palm Beach

Gardens City Council.

3. Russo serves as an accountant for Carl

Sabatello, Carl Sabatello's brothers, and

the Sabatello construction companies owned

by Carl Sabatello and his brothers.

4. In 2002, one or more Sabatello

construction companies were involved in the

construction of residential dwellings in the

Mirasol project Parcel 4.

5. The Mirasol Project (formerly known as

Golf Digest), is a planned community

development consisting of 2,304 acres with

plans for 2,145 dwelling units, a fire

station, school site, park, golf courses,

and commercial development. The planned

community development for the Mirasol

Project was first approved by the Palm Beach

Gardens City Council in 1998. Since that

time numerous matters relating to the

Mirasol Project have come before the City

Council for approval.

6. On April 18, 2002, Russo, as a member of

the Palm Beach Gardens City Coun[ci]l, voted

for Resolution 54, 2002, relating to site

plan approval for forty-one semi-custom

homes in Mirasol Parcel 6.

7. On that same date, April 18, 2002,

Russo, as a member of the Palm Beach Gardens

City Coun[ci]l, voted for Resolution

57, 2002, relating to site approval for

forty-one semi-custom homes in Mirasol

Parcel 10.

8. Carl Sabatello, who was also a City

Council member at the time, abstained from

the votes on April 18, 2002, for

Resolution[s] 54, 2002 and 57, 2002, and

filed a voting conflict memorandum.

The following were listed in the parties' Joint Prehearing

Stipulation as the "issues of law which remain[ed] for [the]

administrative law judge's determination":

1. Whether Respondent violated Section

112.3143(3), Florida Statutes, by voting as

a member of the Palm Beach Gardens City

Council on April 18, 2002, for Resolution

54, 2002, if it is demonstrated that he knew

that the measure voted on inured to the

special private gain or loss of one of his

principals, and if so, what is the

appropriate penalty.

2. Whether Respondent violated Section

112.3143(3), Florida Statutes, by voting as

a member of the Palm Beach Gardens City

Council on April 18, 2002, for Resolution

57, 2002, if it is demonstrated that he knew

that the measure voted on inured to the

special private gain or loss of one of his

principals, and if so, what is the

appropriate penalty.

3. Whether the Commission's action against

Russo was based on the application of an

unadopted rule. (Russo's Position) -- The

Commission contests Respondent's right to

raise this issue for the first time at this

stage of the this proceeding.

4. Whether Russo's reliance on the advice

of counsel given prior to a vote constitutes

a defense to a violation of the Florida Code

of Ethics. (Russo's Position).

As noted above, the public hearing in this case was held on

November 13 and 14, 2008. 1 Five witnesses testified at hearing:

Eric Jablin; Respondent; Ronald Farris; Phillip Claypool,

Esquire; and Carl Sabatello. In addition to these five

witnesses' testimony, 13 exhibits (Joint Exhibits 40, 41, 43, 53,

55, 58, 59, 61, 62, 74, 76, 81, and 82) were offered and received

into evidence. These exhibits included the depositions of

Leonard Rubin, Esquire (Joint Exhibit 77), Craig Perna (Joint

Exhibit 81), and Jack Hanson (Joint Exhibit 82), which were

admitted in lieu of the deponents' live testimony.

At the close of the taking of evidence on November 14, 2008,

the undersigned established a February 2, 2009, deadline for the

filing of proposed recommended orders.

The hearing Transcript (consisting of three volumes) was

filed with DOAH on December 18, 2008.

On January 9, 2009, the parties filed a motion jointly

requesting a two-week extension of the deadline for filing

proposed recommended orders. By order issued January 12, 2009,

the motion was granted, and the filing deadline was extended to

February 16, 2009.

The parties timely filed their Proposed Recommended Orders

on February 16, 2009.

FINDINGS OF FACT

Based on the evidence adduced at the public hearing and the

record as a whole, the following findings of fact are made to

supplement and clarify the factual stipulations set forth in the

parties' Joint Prehearing Stipulation 2 :

1. Each of the "Sabatello construction companies" referred

to in the parties' Stipulations of Fact 3 and 4 was wholly owned

by Carl Sabatello and his brothers Paul, Theodore, and Michael

Sabatello (Sabatello Brothers), with each brother owning an

equal (25%) share of the company.

2. Of these companies, only one, Sabatello Development

Corporation IV (SD IV) was involved in the Mirasol Project.

3. SD IV has been in continuous existence since its

formation in or around the 1980's. Carl Sabatello serves as its

president, "oversee[ing] all [of its] functions."

4. SD IV is a Subchapter S corporation. As such, its

profits are passed through to the Sabatello Brothers, its four

shareholders, in equal amounts.

5. Respondent is a certified public accountant. Since

1989, through his accounting firm, he has provided tax

preparation services to SD IV and the Sabatello Brothers. His

firm has derived "anywhere from 15 to 25%" of its total income

from the monies received for providing these services.

6. Before establishing his accounting firm in 1989,

Respondent was SD IV's chief financial officer and one of its

shareholders.

7. Taylor Woodrow Communities (Taylor Woodrow) was the

master developer of the Mirasol Project.

8. Taylor Woodrow's Craig Perna had "overall

responsibility for every aspect of the [Mirasol] development"

project, including the "selection of builders."

9. The builder selection process started with Mr. Perna

getting the names of "prominent builders in the Palm Beach

Gardens market" having "excellent reputation[s]" and then

contacting them to inquire as to their interest in participating

in the Mirasol Project. Carl Sabatello was among those

Mr. Perna contacted. He was contacted (by telephone) in mid-May

of 2000, and advised Mr. Perna he was "very interested" in

having his company, SD IV, considered for selection as a builder

in Mirasol.

10. SD IV, was one of at least ten or 12 builders vying to

be selected to participate in the Mirasol Project.

11. Over a period of approximately eight months (from

mid-May 2000, to mid-January 2001), Taylor Woodrow requested and

obtained from SD IV and from the other would-be participants in

the project (Other Builders) information and documents in order

to evaluate these builders' qualifications for selection.

12. In the latter part of 2000, prior to any selection

having been made, Carl Sabatello requested the Palm Beach

Gardens City Attorney, Leonard Rubin, Esquire, "to provide a

[written] legal opinion as to [Mr. Sabatello's] obligation to

abstain from voting in [his] official capacity on matters

relating to Mirasol that come before the [Palm Beach Gardens]

City Council." In response to Mr. Sabatello's request,

Mr. Rubin prepared a written memorandum, dated December 5, 2000,

which was provided, not only to Mr. Sabatello, but to all

members of the Palm Beach Gardens City Council, including

Respondent, as well as to the Interim City Manager. The

memorandum read as follows:

You have indicated that the Sabatello

Companies, of which you are a principal, is

currently in negotiations with the

developers of the Mirasol Planned Community

District ("PCD") to become a builder of

homes within that community. Your

activities as a builder would be limited to

specific parcels or pods within the PCD.

You asked this office to provide a legal

opinion as to your obligation to abstain

from voting in your official capacity on

matters relating to Mirasol that come before

the City Council.

Voting conflicts for members of the City

Council are governed by section 112.3143,

Florida Statutes. Subsection (3)(a)

provides that a municipal officer shall not

vote in an official capacity on any measure

that "would inure to the special gain" of

the officer, a principal by whom the officer

is retained, or a relative or business

associate of the officer. According to the

state Ethics Commission, the determination

of whether the officer receives a special

private gain is based upon the size of the

class of persons affected by the vote at

issue.

The Mirasol PCD encompasses a variety of

residential, commercial, recreational and

community uses. The residential uses range

from low density single family homes to high

density multi-family apartments. It is

anticipated that your company's activities

will be limited to the construction of

single family dwellings within a specific,

identifiable parcel for which a site plan

has already been approved. Because of this

limited involvement, there does not appear

to be any requirement that you abstain from

every vote relating to the approval of

plats, parcels and site plans within the

entire Mirasol PCD. See CEO 85-62 (city

council member not prohibited from voting on

rezoning of property within a large

redevelopment area where member's

corporation owns a parcel of land within the

same area). By way of example, the City

Council's approval of the site plan for the

fire station or the plat for Jog Road in no

way inures to your or your company's special

private gain. You would, however, be

required to abstain from any additional

votes relating to the specific parcels or

pods within the community in which your

company possesses or acquires an interest by

virtue of a contractual relationship with

the master developer.

Where a conflict of interest exists, you are

required to state the nature of your

interest prior to the vote and file a voting

conflict memorandum with the City Clerk,

within 15 days. The existence of a voting

conflict does not necessarily require you to

abstain from all discussion relating to the

matter (although you are free to do so). If

you plan to participate in discussion of a

matter in which you know you have a

conflict, you must file a written conflict

memorandum before the public meeting.

You have also expressed concern that upon

learning that your company will be building

homes within Mirasol, members of the public

may perceive a conflict of interest in all

matters relating to Mirasol. To avoid the

appearance of impropriety, it would be

appropriate to make the following

disclos[ure] prior to any vote:

"While it is anticipated that the Sabatello

Companies will be building homes within

Mirasol, the matter before the City Council

does not concern the areas in which such

construction will take place and is wholly

unrelated to any interest held by me or my

corporations."

Should you have any questions or be in need

of additional information, please do not

hesitate to contact this office.

13. In January of 2001, Taylor Woodrow selected SD IV to

build on Mirasol Parcel 4. 3 It sent Carl Sabatello a letter

dated January 22, 2001, advising him of the selection, along

with a Parcel Builder Agreement and Exclusive Agency Brokerage

Agreement for Mirasol Parcel 4.

14. These agreements were fully executed in February of

2001.

15. Sometime thereafter SD IV began building on Mirasol

Parcel 4.

16. SD IV was one of first builders to start construction

in Mirasol.

17. SD IV eventually purchased all 46 lots in Mirasol

Parcel 4, constructing homes on each. All of the homes it built

were sold.

18. On or about October 18, 2001, at Respondent's request,

Mr. Rubin prepared and distributed to Respondent and the other

members of Palm Beach Gardens City Council a written memorandum

designed to provide "clarification and confirmation from [the

City Attorney's] office regarding a Council Member's obligation

to vote on an item before the City Council." In this

memorandum, Mr. Rubin made the following points:

1. A council member must vote in the

absence of a voting conflict or conflict of

interest.

Section 28[6].012, Florida Statutes,

requires a member of the City Council, who

is present at a meeting, to vote on an item

before the Council unless there is, or

appears to be, a conflict of interest or

voting conflict pursuant to the Code of

Ethics for Public Officers and Employees.

* * *

2. A voting conflict arises when the vote

inures the Council member's own special

private gain or loss of the special private

gain or loss of the Council member's

principal, family member or business

associate.

* * *

3. The special private gain to the Council

member depends on the size of the class of

persons affected and is fact-specific.

* * *

4. The special private gain to the Council

member must be direct and proximate.

* * *

5. In the event of a voting conflict, a

Council member must disclose the nature of

the conflict and abstain from voting.

19. Mr. Rubin's memorandum "reinforced what [Respondent]

already knew about the law."

20. On April 18, 2002, the Palm Beach Gardens City Council

voted on and passed two measures concerning the Mirasol Project,

one, Resolution 54, 2002, dealing with Mirasol Parcel 6 (a 10.11

acre site within the development), and the other, Resolution

57, 2002, dealing with Mirasol Parcel 10 (a 14.6-acre site

within the development).

21. As the summary statement on its first page reflects,

Resolution 54, 2002 was:

A resolution of the City Council of the City

of Palm Beach Gardens, Florida, providing

for the approval of a site plan to allow for

the development of 41 semi-custom homes,

known as Mirasol Parcel 6, located within

the Mirasol Planned Community District

(PCD), as more particularly described

herein; providing for conditions of

approval; providing for waivers; providing

for severability; providing for conflicts;

and providing for an effective date.

Section 5 of the resolution granted the following waivers:

(1) From Section 78-498 of the LDRs, to

permit a 45-foot wide right-of-way. The

code requires a minimum right-of-way width

of 50 feet.

(2) From Section 78-141 of the LDRs, to

permit a minimum lot width of 60 feet. The

code requires a minimum width of 65 feet.

(3) From Section 78-141 of the LDRs, to

permit lot coverage of 50%. The code

requires a maximum lot coverage of 35%.

(4) From Section 78-141 of the LDRs, to

permit a building side setback of 3 feet 1

inch on a "zero" side and 6 feet 11 inches

on a "non-zero" side. The code requires a

minimum side setback of 7.5 feet.

(5) From Section 78-141 of the LDRs, to

permit a screen/accessory side setback of 3

feet 1 inch on a "zero" side and 5 feet on a

"non-zero" side. The code requires a

minimum side setback of 7.5 feet.

(6) From Section 78-141 of the LDRs, to

permit a screen/accessory rear setback of 3

feet. The code requires a minimum setback

of 10 feet.

22. As the summary statement on its first page reflects,

Resolution 57, 2002 was:

A resolution of the City Council of the City

of Palm Beach Gardens, Florida, providing

for the approval of a site plan to allow for

the development of 26 custom homes, known as

Mirasol Parcel 10, located within the

Mirasol Planned Community District (PCD), as

more particularly described herein;

providing for conditions of approval;

providing for waivers; providing for

severability; providing for conflicts; and

providing for an effective date.

Section 5 of the resolution granted the following waivers:

(1) From Section 78-498 of the LDRs, to

permit a 45-foot wide right-of-way. The

code requires a minimum right-of-way width

of 50 feet.

(2) From Section 78-141 of the LDRs, to

permit lot coverage of 45%. The code

requires a maximum lot coverage of 35%.

(3) From Section 78-141 of the LDRs, to

permit a building/screen side setback of 10

feet. The code requires a minimum side

setback of 12 feet.

(4) From Section 78-141 of the LDRs, to

permit an accessory structure setback of 5

feet. The code requires a minimum side

setback of 12 feet.

(5) From Section 78-141 of the LDRs, to

permit a screen/accessory rear setback of 3

feet. The code requires a minimum setback

of 10 feet.

23. The "waivers" that were granted by Resolution 54, 2002

and Resolution 57, 2002 were from the requirements of the Palm

Beach Gardens Code that Taylor Woodrow, or whichever builder(s)

it subsequently selected to build on the affected parcels, would

otherwise have to meet.

24. At the April 18, 2002, Palm Beach Gardens City Council

meeting, Carl Sabatello orally announced to those in attendance,

including Respondent, that he was going to abstain from voting

on Resolution 54, 2002 and Resolution 57, 2002, explaining that

he was involved in discussions regarding the possible purchase

of the two parcels that were the subject of these measures.

25. At the time of the vote on Resolution 54, 2002 and

Resolution 57, 2002, although he may have been aware of the

investment Mr. Sabatello's company had made in Mirasol Parcel 4,

Respondent had no knowledge of any connection that Mr. Sabatello

or his company may have had with Mirasol Parcel 6 and Mirasol

Parcel 10 other than what Mr. Sabatello had told the audience at

the meeting about the matter.

26. As far as Respondent knew, neither Mr. Sabatello nor

his company owned or had a contract to purchase Mirasol Parcel 6

or Mirasol Parcel 10.

27. Respondent did not attempt to engage Mr. Sabatello in

conversation or otherwise seek to find out more about the

discussions Mr. Sabatello had referred to in his abstention

announcement.

28. Respondent did, however, consult with the Palm Beach

Gardens City Attorney to determine whether or not he should vote

on the resolutions.

29. Respondent "knew [that the law required him] not to

vote [on] things that a client had an interest in," but, based

on what Mr. Sabatello had said at the meeting, he believed that

Mr. Sabatello was merely "in a discussion phase" regarding the

acquisition of an interest in Mirasol Parcel 6 and Mirasol

Parcel 10 and that there had not been any agreement reached on

the matter. He therefore voted on Resolution 54, 2002 and

Resolution 57, 2002, consistent with the advice that the Palm

Beach Gardens City Attorney had given.

30. Approval of the site plans for Mirasol Parcel 6 and

Mirasol Parcel 10 (which the passage of Resolution 54, 2002 and

Resolution 57, 2002, respectively, accomplished) was needed

before any permits for building on those two parcels could be

obtained.

31. Mr. Sabatello, on April 18, 2002, filled out a voting

conflict form (Form 88, Memorandum of Voting Conflict)

explaining why he did not vote on Resolution 54, 2002 and

Resolution 57, 2002. On the form, he indicated that these votes

"inured to the special gain of Sabatello Development Corp, IV,

Inc, by whom I am retained," and then added that this "company,"

of which he was "an officer and owner[,] [was] in the process of

negotiating [the] purchasing of Pod 6 & Pod 10."

32. At the time he cast his votes for Resolution 54, 2002

and Resolution 57, 2002, Respondent was "not privy" to the

contents of Mr. Sabatello's completed voting conflict form.

33. On April 30, 2002, 12 days after the votes on

Resolution 54, 2002 and Resolution 57, 2002, SD IV entered into

an agreement with Taylor Woodrow to purchase all of the lots in

Mirasol Parcel 6. It closed on lots 10, 11, 32, and 33 on

September 25, 2002, and on the remaining lots in the parcel on

January 3, 2003.

34. SD IV built a home on every lot it purchased in

Mirasol Parcel 6, and it sold every home it built.

35. SD IV received a contract to purchase Mirasol Parcel

10, but it never executed the contract and therefore never

acquired an interest in the parcel.

CONCLUSIONS OF LAW

36. DOAH has jurisdiction over the subject matter of this

proceeding and of the parties hereto pursuant to Chapter 120,

Florida Statutes.

37. The Commission was "created . . . to serve as guardian

of the standards of conduct for the officers and employees of

the state, and of a county, city, or other political subdivision

of the state . . . and to serve as the independent commission

provided for in s. (8)(f), Art. II of the State Constitution." 4

§ 112.320, Fla. Stat.

38. The "Code of Ethics for Public Officers and Employees"

(Code) found in Chapter 112, Part III, Florida Statutes,

contains such "standards of conduct."

39. In Sections 112.311 and 112.316, Florida Statutes,

which provide, in pertinent part, as follows, the Legislature

explained what it intended, and what it did not intend, in

enacting the Code:

112.311 Legislative intent and declaration

of polic y

(1) It is essential to the proper conduct

and operation of government that public

officials be independent and impartial and

that public office not be used for private

gain other than the remuneration provided by

law. The public interest, therefore,

requires that the law protect against any

conflict of interest and establish standards

for the conduct of elected officials and

government employees in situations where

conflicts may exist.

(2) It is also essential that government

attract those citizens best qualified to

serve. Thus, the law against conflict of

interest must be so designed as not to

impede unreasonably or unnecessarily the

recruitment and retention by government of

those best qualified to serve. Public

officials should not be denied the

opportunity, available to all other

citizens, to acquire and retain private

economic interests except when conflicts

with the responsibility of such officials to

the public cannot be avoided.

* * *

(4) It is the intent of this act to

implement these objectives of protecting the

integrity of government and of facilitating

the recruitment and retention of qualified

personnel by prescribing restrictions

against conflicts of interest without

creating unnecessary barriers to public

service.

(5) It is hereby declared to be the policy

of the state that no officer or employee of

a state agency or of a county, city, or

other political subdivision of the state,

and no member of the Legislature or

legislative employee, shall have any

interest, financial or otherwise, direct or

indirect; engage in any business transaction

or professional activity; or incur any

obligation of any nature which is in

substantial conflict with the proper

discharge of his or her duties in the public

interest. To implement this policy and

strengthen the faith and confidence of the

people of the state in their government,

there is enacted a code of ethics setting

forth standards of conduct required of

state, county, and city officers and

employees, and of officers and employees of

other political subdivisions of the state,

in the performance of their official duties.

It is the intent of the Legislature that

this code shall serve not only as a guide

for the official conduct of public servants

in this state, but also as a basis for

discipline of those who violate the

provisions of this part.

(6) It is declared to be the policy of the

state that public officers and employees,

state and local, are agents of the people

and hold their positions for the benefit of

the public. They are bound to uphold the

Constitution of the United States and the

State Constitution and to perform

efficiently and faithfully their duties

under the laws of the federal, state, and

local governments. Such officers and

employees are bound to observe, in their

official acts, the highest standards of

ethics consistent with this code and the

advisory opinions rendered with respect

hereto regardless of personal

considerations, recognizing that promoting

the public interest and maintaining the

respect of the people in their government

must be of foremost concern.

112.316 Construction

It is not the intent of this part, nor shall

it be construed, to prevent any officer or

employee of a state agency or county, city,

or other political subdivision of the state

or any legislator or legislative employee

from accepting other employment or following

any pursuit which does not interfere with

the full and faithful discharge by such

officer, employee, legislator, or

legislative employee of his or her duties to

the state or the county, city, or other

political subdivision of the state involved.

40. Among the "standards of conduct" established by the

Code are those set forth in Section 112.3143(3)(a), Florida

Statutes, which at all material times has provided as follows:

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 knows 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,

within 15 days after the vote occurs,

disclose the nature 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.

41. As a member of the Palm Beach Gardens City Council,

Respondent was subject to the provisions of Section

112.3143(3)(a), Florida Statutes.

42. Pursuant to Section 286.012, Florida Statutes (which

is not part of the Code), a local public officer need not have

an actual voting conflict to lawfully abstain from voting.

According to this statute, abstention is permissible where

"there is, or appears to be, a possible conflict of interest."

Under all other circumstances, however, voting is mandatory.

43. The Legislature has granted the Commission the

authority and responsibility to issue advisory opinions "to

interpret or advise on the applicability of" Section

112.3143(3)(a), Florida Statutes, and the other provisions of

the Code. Commission on Ethics v. Sullivan , 489 So. 2d 10, 13

(Fla. 1986). This grant of power and duty is found in Section

112.322(3)(a), Florida Statutes, which provides as follows:

Every public officer, candidate for public

office, or public employee, when in doubt

about the applicability and interpretation

of this part or s. 8, Art. II of the State

Constitution to himself or herself in a

particular context, may submit in writing

the facts of the situation to the Commission

on Ethics with a request for an advisory

opinion to establish the standard of public

duty. Any public officer or employee who

has the power to hire or terminate employees

may likewise seek an advisory opinion from

the commission as to the application of the

provisions of this part or s. 8, Art. II of

the State Constitution to any such employee

or applicant for employment. An advisory

opinion shall be rendered by the commission,

and each such opinion shall be numbered,

dated, and published without naming the

person making the request, unless such

person consents to the use of his or her

name.

According to Subsection (3)(b) of the statute, an advisory

opinion issued by the Commission, "until amended or revoked,

shall be binding on the conduct of the officer, employee, or

candidate who sought the opinion or with reference to whom the

opinion was sought, unless material facts were omitted or

misstated in the request for the advisory opinion."

44. Advisory opinions issued by the Commission pursuant to

Section 112.322(3)(a), Florida Statutes, are not "rules," as

defined in Section 120.52(16), Florida Statutes, 5 because they

are not "statements of general applicability" inasmuch as their

"binding" effect, by statute, is limited to "the conduct of the

officer, employee, or candidate who sought the opinion or with

reference to whom the opinion was sought." 6 See Agency for

Health Care Administration v. Custom Mobility, Inc. , 995 So. 2d

984, 986 (Fla. 1st DCA 2008)("[T]the cluster sampling formula is

not an agency statement of general applicability. . . . In

Department of Commerce v. Matthews Corporation , 358 So. 2d 256

(Fla. 1st DCA 1978), this Court held that wage rate guidelines

were not statements of general applicability because they were

'applicable only to the construction of the particular public

building or other work specified in the determination,' and

because they have 'no prospective application to any other

contract - only the specific project involved in the particular

location.' Id. at 258. In Department of Highway Safety v.

Schluter , 705 So. 2d 81, 82 (Fla. 1st DCA 1997), this Court held

that three of six agency statements in question, policies

concerning officer discipline, were not statements of general

applicability 'because the record establishes that each was to

apply only under 'certain circumstances,' and so did not have

the 'consistent effect of law' mentioned in McDonald .

Similarly, the formula here applies only to some of the service

providers being audited, and thus does not have the consistent

effect of law."); Taylor v. Department of Banking and Finance,

Office of the Comptroller , No. 02-2135RU, 2002 Fla. Div. Adm.

Hear. LEXIS 1056 *32 (Fla. DOAH August 6, 2002)(Final Order)("If

by its terms a statement is intended to apply to one person

only, or to some but not all similarly situated persons,

depending on the particular circumstances, then it should

ordinarily be regarded as a case-specific adjudication rather

than a policy of general applicability."); Butterworth v.

Department of Banking and Finance , No. 97-2911RU, 1997 Fla. Div.

Adm. Hear. LEXIS 5654 *4 (Fla. DOAH August 19, 1997)(Final

Order)("[I]n order for a statement to qualify as a rule, it must

be a 'statement of general applicability that implements,

interprets, or prescribes law or policy . . . of an agency.' By

its own terms, a declaratory statement applies to a 'particular

set of circumstances' and cannot qualify as a statement of

general applicability."); and Florida Manufactured Housing

Association, Inc., v. Department of Business Regulation,

Division of Florida Land Sales, Condominiums and Mobile Homes ,

Nos. 85-3858RX and 85-3859RX, 1984 Fla. Div. Adm. Hear. LEXIS

5231 *65 (Fla. DOAH December 17, 1984)(Final Order)("This

explanation only applies to the particular park owners which the

Respondent provided the explanation to. It is not clearly

intended to be a policy of general applicability even though the

explanation was given to more than one park owner because those

park owners had given the same clearly insufficient explanations

in their notices. . . . It is therefore concluded that the

Petitioner has failed to prove that the Respondent has adopted a

policy which should have been promulgated as a rule."); see also

Florida Optometric Association v. Department of Professional

Regulation, Board of Opticianry , 567 So. 2d 928, 937 (Fla. 1st

DCA 1990)("We do observe, however, that declaratory statements

and rules serve clearly distinct functions under the scheme of

Chapter 120. Although the line between the two is not always

clear, it should be remembered that declaratory statements are

not to be used as a vehicle for the adoption of broad agency

policies. Nor should they be used to provide interpretations of

statutes, rules or orders which are applicable to an entire

class of persons. Declaratory statements should only be granted

where the petition has clearly set forth specific facts and

circumstances which show that the question presented relates

only to the petitioner and his particular set of

circumstances.").

45. Since they are not "rules," the Commission's advisory

opinions are not subject to challenge pursuant to Section

120.57(1)(e), Florida Statutes. Accordingly, to the extent that

Respondent contends that the Commission is barred by Section

120.57(1)(e) from relying on the reasoning of CEO 87-86 (Fla.

Commission on Ethics December 10, 1987) and CEO 89-45 (Fla.

Commission on Ethics September 14, 1989) 7 in determining whether

Respondent committed the violations alleged in the Order Finding

Probable Cause, that argument is rejected. 8

46. A local public officer "in doubt about the

applicability and interpretation" of Section 112.3143(3)(a),

Florida Statutes, can avoid being found guilty of a violation of

the Code by making a request to the Commission for an advisory

opinion, accompanied by an accurate and complete disclosure of

the pertinent facts, and by then following the advice given by

the Commission in its advisory opinion, which, by operation of

Section 112.322(3)(a), Florida Statutes, "establish[es] the

standard of public duty" for the officer. Simply obtaining and

following the advice of an attorney, however, does not provide

the same protection, although it may constitute a mitigating

circumstance to be taken into consideration in determining an

appropriate penalty in those cases where the attorney's advice

turns out to have been erroneous. Cf. In re Mitchell Kinzer ,

No. 95-13, 1994 Fla. Div. Adm. Hear. LEXIS 5188 *40 (Fla.

Commission on Ethics April 21, 1994)(Final Order), rev'd on

other grounds , Kinzer v. State Commission on Ethics , 654 So. 2d

1007 (Fla. 3d DCA 1995)("Where, as here, there is no requirement

of wrongful intent, Respondent's reliance on the incorrect

advice of counsel is not a defense. See In re Michael Kenton ,

13 FALR 1295, 1317 (Commission on Ethics 1989). Respondent's

reliance on the prior advice of counsel mitigates, but does not

obviate the violation. See Gordon v. Commission on Ethics , 609

So. 2d 125 (Fla. 4th DCA 1992).").

47. The "penalties" that may be imposed for violations of

Section 112.3143(3)(a), Florida Statutes, and other Code

provisions are spelled out in Section 112.317(1)(a), Florida

Statutes, which provides, in pertinent part, as follows:

(1) Violation of any provision of this

part, including, but not limited to,

any . . . violation of any standard of

conduct imposed by this part, . . . in

addition to any criminal penalty or other

civil penalty involved, shall, pursuant to

applicable constitutional and statutory

procedures, constitute grounds for, and may

be punished by, one or more of the

following:

(a) In the case of a public officer:

* * *

2. Removal from office.

3. Suspension from office.

4. Public censure and reprimand.

5. Forfeiture of no more than one-third

salary per month for no more than 12 months.

6. A civil penalty not to exceed $10,000.

7. Restitution of any pecuniary benefits

received because of the violation committed.

The commission may recommend that the

restitution penalty be paid to the agency of

which the public officer was a member or to

the General Revenue Fund.

(2) In any case in which the commission

finds a violation of this part . . . and

recommends a civil penalty or restitution

penalty, the Attorney General shall bring a

civil action to recover such penalty. No

defense may be raised in the civil action to

enforce the civil penalty or order of

restitution that could have been raised by

judicial review of the administrative

findings and recommendations of the

commission by certiorari to the district

court of appeal.

* * *

(5) By order of the Governor, upon

recommendation of the commission, any

elected municipal officer who violates any

provision of this part . . . may be

suspended from office and the office filled

by appointment for the period of suspension.

The suspended officer may at any time before

removal be reinstated by the Governor. The

Senate may, in proceedings prescribed by

law, remove from office, or reinstate, the

suspended official, and for such purpose the

Senate may be convened in special session by

its President or by a majority of its

membership.

48. Pursuant to Section 112.324(3), Florida Statutes,

"only the appropriate disciplinary authority as designated in

this section" may impose penalties for Code violations. In the

case of an elected municipal officer, the Governor is the

"appropriate disciplinary authority . . . designated in [Section

112.324]."

49. The Commission is authorized to investigate complaints

of violations of the Code to determine "whether there is

probable cause to believe that a violation has occurred." If,

upon completion of its preliminary investigation, the Commission

finds that such probable cause exists, a public (evidentiary)

hearing must be held if requested by the accused public officer

or employee. If it so desires, "[t]he [C]ommission may on its

own motion, require a public [evidentiary] hearing." § 112.324,

Fla. Stat.

50. "Public hearings may be conducted by the full

Commission, by a single Commission member, or by the Division of

Administrative Hearings, as directed by the Chair of the

Commission after considering the Commission's workload." Fla.

Admin. Code R. 34-5.010.

51. The Commission is represented at these public hearings

by its Advocate, who enjoys the same opportunity as the accused

public officer to be a "full participant" in the proceedings.

Fla. Admin. Code R. 34-5.011; see also Fla. Admin. Code R. 34-

5.0045(2)("The Advocate represents the Commission in its

prosecutorial function.").

52. The Advocate bears the burden of proving that the

accused engaged in the conduct, and thereby committed the Code

violation(s), alleged in the Commission's order finding probable

cause.

53. Proof greater than a mere preponderance of the

evidence must be presented by the Advocate to meet this burden

of proof. Clear and convincing evidence of the accused's guilt

is required. See Department of Banking and Finance, Division of

Securities and Investor Protection v. Osborne Stern and Company ,

670 So. 2d 932, 935 (Fla. 1996); and Latham v. Florida

Commission on Ethics , 694 So. 2d 83, 87 (Fla. 1st DCA 1997).

54. Clear and convincing evidence "requires more proof

than a 'preponderance of the evidence' but less than 'beyond and

to the exclusion of a reasonable doubt.'" In re Graziano , 696

So. 2d 744, 753 (Fla. 1997). It is an "intermediate standard."

Id. For proof to be considered "'clear and convincing' . . .

the evidence must be found to be credible; the facts to which

the witnesses testify must be distinctly remembered; the

testimony must be precise and explicit and the witnesses must be

lacking in confusion as to the facts in issue. The evidence

must be of such weight that it produces in the mind of the trier

of fact a firm belief or conviction, without hesitancy, as to

the truth of the allegations sought to be established." In re

Davey , 645 So. 2d 398, 404 (Fla. 1994), quoting, with approval,

from Slomowitz v. Walker , 429 So. 2d 797, 800 (Fla. 4th DCA

1983). "Although this standard of proof may be met where the

evidence is in conflict, . . . it seems to preclude evidence

that is ambiguous." Westinghouse Electric Corporation, Inc. v.

Shuler Bros., Inc. , 590 So. 2d 986, 989 (Fla. 1st DCA 1991).

55. The Advocate's evidentiary presentation at the public

hearing must be evaluated in light of the specific allegations

of wrongdoing made in the Commission's order finding probable

cause to determine whether the Advocate has met his burden of

proof. Due process prohibits penal action being taken against a

public officer based on matters outside these specific

allegations, unless those matters have been tried by consent.

See Shore Village Property Owners' Association, Inc. v.

Department of Environmental Protection , 824 So. 2d 208, 210

(Fla. 4th DCA 2002); and Marcelin v. Department of Business and

Professional Regulation , 753 So. 2d 745, 747 (Fla. 3d DCA 2000).

56. Where an administrative law judge has conducted the

public hearing and issued a recommended order, the Commission

must meet to consider the recommended order and any exceptions

thereto. Pursuant to Florida Administrative Code Rule 34-5.024,

the meeting "shall not be an evidentiary 'hearing'" and "[n]o

new evidence shall be taken."

57. If the Commission, at its meeting, finds that there

was a violation of the Code, as specifically alleged by the

Commission, it may recommend a "civil penalty" (not to exceed

$10,000.00) and/or a "restitution penalty" (in an amount equal

to the "pecuniary benefits received because of the violation

committed"). Should the Commission do so, "the Attorney General

[must] bring a civil action to recover such penalty." § 112.317,

Fla. Stat.

58. In the instant case, the Commission has alleged that

Respondent, as a member of the Palm Beach Gardens City Council,

violated Section 112.3143(3), Florida Statutes, on April 18,

2002, by voting on Resolution 54, 2002 and Resolution 57, 2002

(Subject Votes), when he "knew at the time of the [S]ubject

[V]otes that the votes inured to the special private gain of

Carl Sabatello, SD IV, and [the] Sabatello[] [B]rothers," all of

whom were his "principals based upon the fact that they were

clients of Respondent's professional accounting partnership."

59. To determine whether the Advocate has met his burden

of proving these violations by clear and convincing evidence, it

is first necessary to ascertain the meaning of Section

112.3143(3), Florida Statutes, and understand what conduct it

prohibits.

60. "Legislative intent is the 'polestar' in

interpretation of statutory provisions." Blinn v. Florida

Department of Transportation , 781 So. 2d 1103, 1107 (Fla. 1st

DCA 2000). "Legislative intent must be derived primarily from

the words expressed in the statute. If the language of the

statute is clear and unambiguous," these words must be given

effect. Florida Department of Revenue v. Florida Municipal

Power Agency , 789 So. 2d 320, 323 (Fla. 2001).

61. Inasmuch as it is a penal statute, Section

112.3143(3), Florida Statutes, must be strictly construed and

not extended beyond its intended reach. If there are any doubts

concerning its applicability, these doubts must be resolved in

favor of limiting, rather than extending, its scope of

operation. See Florida Industrial Commission v. Manpower, Inc.

of Miami , 91 So. 2d 197, 199 (Fla. 1956); Beckett v. Department

of Financial Services , 982 So. 2d 94, 100 (Fla. 1st DCA 2008);

and Latham , 694 So. 2d at 86.

62. It is telling that the Legislature, in Section

122.3143(3), Florida Statutes, used the language " would inure,"

not " might inure" or " is likely to inure." Strictly construing

this language in a manner consistent with its plain meaning, the

Commission, "[i]n past decisions, [has] found that the statute

does not apply in situations where, at the time of the vote,

there is uncertainty whether there will be any [special private]

gain or loss to the officer, his principal (employer), or to

other persons or entities standing in an enumerated relationship

to the officer, and if so, what the nature and magnitude of the

gain or loss might be." CEO 07-7 (Fla. Commission on Ethics

March 7, 2007); see also CEO 90-66 (Fla. Commission on Ethics

October 19, 1990)("A county commissioner was not prohibited by

Section 112.3143(3), Florida Statutes, from voting on a

provisional use petition by a landowner for communication tower

use when he was an investor in a limited partnership, the parent

company of which had negotiated with the landowner for placement

of television broadcasting facilities on a future communication

tower but where there had been no commitment on the landowner's

part to construct the tower, negotiations have continued, no

lease contract has been entered into, and negotiations have also

taken place with the owners of other communications towers which

would be acceptable locations for the television facilities.

Any gain or loss resulting from the provisional use to the

partnership in which the subject commissioner is a limited

partner is too speculative and remote to conclude that his vote

on the provisional use petition would inure to his special

private gain."). That there ultimately may have been a "special

private gain or loss" is not determinative. A local public

officer's action in voting on a particular measure must be

judged, not based on hindsight, but on the circumstances that

existed "at the time of the vote" in question. If, in light of

these circumstances, one could have only speculated "at the time

of the vote" as to whether or not a prohibited "special private

gain or loss" would result from the measure voted on, the

officer cannot be found guilty of having violated the statute by

voting on the measure, even if it turned out that the vote did

cause "the officer, his principal (employer), or . . . other

persons or entities standing in an enumerated relationship to

the officer" to realize a "special private gain or loss."

63. It is also of significance in determining the reach of

Section 112.3143(3), Florida Statutes, as it applies in the

instant case, that the Legislature provided that, where the

measure in question "would inure to the special private gain or

loss [of the officer's] principal," liability attaches only if

the officer " knows " that the measure would have this

consequence. Importantly, the Legislature did not include the

words " or should know " in the statute. Its failure to have

added this language (as it has done elsewhere in the Code and in

Florida Statutes 9 ) reflects its intent that the officer must

have, at the time of the vote, actual knowledge of the "special

private gain or loss" that "would inure" to principal for there

to be a violation of the statute. See Leisure Resorts, Inc. v.

Frank J. Rooney, Inc. , 654 So. 2d 911, 914 (Fla. 1995)("When the

legislature has used a term, as it has here, in one section of

the statute but omits it in another section of the same statute,

we will not imply it where it has been excluded."); Myers v.

Hawkins , 362 So. 2d 926, 929 (Fla. 1978)("The term "judicial

tribunal" is found in the Florida Constitution only in Section

8(e) of Article II, although the terms "courts" and

"administrative agencies" are used elsewhere frequently. We

presume that the language differentiation was intentional.");

Department of Professional Regulation, Board of Medical

Examiners v. Durrani , 455 So. 2d 515, 516 (Fla. 1st DCA

1984)("The legislative use of different terms in different

portions of the same statute is strong evidence that different

meanings were intended."); and Ocasio v. Bureau of Crimes

Compensation, Division of Workers' Compensation , 408 So. 2d 751,

753 (Fla. 3d DCA 1982)("[I]f it wished, the legislature could

easily have accomplished the result achieved below simply by

using the familiar and unequivocal expression "husband or wife"

or, even more obviously, "spouse"-as it significantly did in

another portion, subsection (1)(c), of the identical statute.

Its deliberate use of a quite different term in (2 )(c) is

strong evidence indeed that it intended a quite different

meaning."); cf. United States v. Ladish Malting Co. , 135 F.3d

484, 488 (7th Cir. 1998)("Knowledge in a criminal statute means

actual knowledge. What one ought to have known, but did not

know, is not knowledge; it is not even (necessarily)

recklessness.")(citation omitted).

64. To hold that Section 112.3143(3), Florida Statutes,

extends to situations where the officer does not have such

actual knowledge would require the Commission to add language to

the statute that the Legislature, by all appearances,

intentionally omitted. This the Commission cannot do,

particularly inasmuch as Section 112.3143(3) is a penal statute

that must be strictly construed in favor of the accused. See

Chaffee v. Miami Transfer Company, Inc. , 288 So. 2d 209, 215

(Fla. 1974)("To say, as the employer would have us do, that in

merger cases the true meaning of s 440.15(3)(u) is that

disability for purposes of that section is the greater of

physical impairment or loss of earning capacity only if there is

a loss of earning capacity is to invoke a limitation or to add

words to the statute not placed there by the Legislature. This

we may not do."); In re Order on Prosecution of Criminal Appeals

by the Tenth Judicial Circuit Public Defender , 561 So. 2d 1130,

1137 (Fla. 1990)("Courts should not add additional words to a

statute not placed there by the legislature, especially where

uncertainty exists as to the intent of the legislature."); and

Hialeah, Inc. v. B & G Horse Transportation, Inc. , 368 So. 2d

930, 933 (Fla. 3d DCA 1979)("[A] court may not invoke a

limitation or add words to a statute not placed there by the

legislature. . . . Construing Section 323.24 to provide

jurisdiction for the enjoining of persons who intend to or are

preparing to operate a vehicle in violation of Chapter 323,

requires the court to extend the meaning of the section beyond

that intended by the legislature, and requires the addition of

words to the section.").

65. Accordingly, to meet his burden of proof in the

instant case, it was incumbent upon the Advocate to clearly and

convincingly establish through his evidentiary presentation at

hearing that, at the time of the Subject Votes, Respondent had

actual knowledge that it was certain and beyond speculation that

the measures being voted on would result in a "special private

gain" to his accounting clients, SD IV and the Sabatello

Brothers (who unquestionably were each his "principal," as that

term is used in Section 112.3143(3), Florida Statutes).

66. The Advocate failed to make such a showing.

67. The evidentiary record reveals that the extent of

Respondent's knowledge, at the time of the Subject Votes,

concerning the connection between the measures being voted on

and Respondent's "principals" was that there were, as Carl

Sabatello had advised at the meeting in making his abstention

announcement, 10 ongoing discussions between the owner of Mirasol

Parcel 6 and Mirasol Parcel 10 (the property that was the

subject of these measures) and Respondent's "principals"

regarding a possible purchase of these parcels. 11 Insofar as

Respondent knew, based on the information he had, there was a

possibility that his "principals" might sometime in the future

acquire an ownership interest in these parcels (and thereby

become unique beneficiaries of Resolution 54, 2000 and

Resolution 57, 2000), but it was uncertain at the time whether

or not this would actually happen. 12 This mere possibility of

"special private gain or loss" inuring to his "principals" did

not bar Respondent, pursuant to Section 112.3143(3), from

casting the Subject Votes. 13

68. In view of the foregoing, it cannot be said that it

has been clearly and convincingly established that Respondent

violated Section 112.3143(3), Florida Statutes, as a result of

his casting the Subject Votes.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions

of Law, it is hereby

RECOMMENDED that the Commission issue a public report

finding the evidence presented at the public hearing in this

case insufficient to clearly and convincingly establish that

Respondent violated Section 112.3143(3), Florida Statutes, by

voting at the April 18, 2002, Palm Beach Gardens City Council

meeting on Resolution 54, 2002 and Resolution 57, 2002, and

dismissing the complaint filed against Respondent.

DONE AND ENTERED this 4th day of March, 2009, in

Tallahassee, Leon County, Florida.

S

___________________________________

STUART M. LERNER

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 4th day of March, 2009.

ENDNOTES

1 The hearing was originally scheduled to commence on May 23,

2008, but was thrice continued.

2 The undersigned has accepted the Stipulations of Fact

contained in the parties' Joint Prehearing Stipulation, except

to the extent that Stipulation of Fact 7 represents that

Resolution 57, 2002, related "to site plan approval for forty-

one semi-custom homes," not 26 custom homes. See Seminole

Electric Cooperative, Inc. v. Department of Environmental

Protection , 985 So. 2d 615, 621 (Fla. 5th DCA 2008)("As a

general rule, and absent a showing of fraud, misrepresentation

or mistake, stipulations are binding on the parties who enter

them, including administrative agencies participating in

administrative proceedings and the courts."); and Woods v.

Greater Naples Care Center , 406 So. 2d 1172, 1173 (Fla. 1st DCA

1981)("A deputy should not bind himself to a stipulation if

facts presented at the hearing are at variance with, and show

good cause for modification of the stipulation.").

3 Mirasol Parcel 4 was one of 29 numbered parcels included in

the Mirasol Project.

4 Article II, Section 8 of the Florida Constitution provides

that "[t]here shall be an independent commission to conduct

investigations and make public reports on all complaints

concerning breach of public trust by public officers or

employees not within the jurisdiction of the judicial

qualifications commission."

5 Section 120.52(16), Florida Statutes, provides as follows:

"Rule" means each agency statement of

general applicability that implements,

interprets, or prescribes law or policy or

describes the procedure or practice

requirements of an agency and includes any

form which imposes any requirement or

solicits any information not specifically

required by statute or by an existing rule.

The term also includes the amendment or

repeal of a rule. The term does not include:

(a) Internal management memoranda which do

not affect either the private interests of

any person or any plan or procedure

important to the public and which have no

application outside the agency issuing the

memorandum.

(b) Legal memoranda or opinions issued to

an agency by the Attorney General or agency

legal opinions prior to their use in

connection with an agency action.

(c) The preparation or modification of:

1. Agency budgets.

2. Statements, memoranda, or instructions

to state agencies issued by the Chief

Financial Officer or Comptroller as chief

fiscal officer of the state and relating or

pertaining to claims for payment submitted

by state agencies to the Chief Financial

Officer or Comptroller.

3. Contractual provisions reached as a

result of collective bargaining.

4. Memoranda issued by the Executive Office

of the Governor relating to information

resources management.

6 That Section 112.322(3)(a), Florida Statutes, requires that

each advisory opinion "be . . . published" suggests that the

Legislature contemplated that these opinions would also provide

non-binding guidance to other "officer[s], employee[s], or

candidate[s]" faced with similar circumstances and help them

choose the appropriate course of action to take to deal with

their particular situations. Compare with Chiles v. Department

of State, Division of Elections , 711 So. 2d 151, 155 (Fla. 1st

DCA. 1998)("[T]he reasoning employed by the agency in support of

a declaratory statement [issued pursuant to Section 120.565,

Florida Statutes] may offer useful guidance to others who are

likely to interact with the agency in similar circumstances.

Another party can expect the agency to apply the rationale for

its declaratory statement consistently, or to explain why a

different application is required."). "However, [a Commission

advisory opinion, like] a declaratory statement[,] is not

transformed into a rule merely because it addresses a matter of

interest to more than one person." Id. at 154.

7 In CEO 87-86 , in deciding that "[a] city council member would

be prohibited by Section 112.3143, Florida Statutes, from voting

on a proposed development agreement regarding the construction

of a shopping center development, where he is negotiating for

the lease or sublease of space in the shopping center," the

Commission reasoned:

In our view, the subject Council member

clearly is presented with a conflict of

interest when called upon to vote on a

development agreement pertaining to a

project within which he is in the process of

negotiating to lease space. He clearly

would not be negotiating for a lease unless

he expected to gain from the lease, yet the

extent of his gain will turn upon the

developer's willingness to lease a favorable

location under favorable terms and

conditions. As different arrangements are

possible for each tenant, it is not

appropriate to determine whether the Council

member is prohibited from voting on the

basis of the percentage of space he seeks to

lease within the project. Under the

circumstances presented, therefore, we

cannot conclude that the development

agreement would not inure to the special

gain of the Council member.

In CEO 89-45 , the Commission relied on its holding in CEO 87-86 ,

when it stated:

This provision [Section 112.3143(3), Florida

Statutes] prohibits the Commissioner from

voting on a measure which either inures to

his special private gain or inures to the

special private gain of a principal by whom

he is retained at the time of the vote. If

the Commissioner . . . has contacted or is

in the process of negotiating with a

contractor or developer [to have his steel

company provide steel for a project on which

the commission is voting], but has not

submitted a proposal, then he would be

required to abstain. Under our rationale in

CEO 87-86, if the Commissioner is

negotiating at the time of the vote, he may

gain from the contractor's or developer's

willingness to contract with him, as well as

from any action by the Commission favoring

the development.

In his Proposed Recommended Order, Respondent asserts that,

"[a]lthough the Commission did not directly cite to CEO Nos. 87-

86 and 89-45, as it did in its complaint against Carl Sabatello

[in DOAH Case No. 08-0782EC], it is clear that the

'negotiations' policy reflected in those CEOs forms the basis

for this proceeding against Respondent."

8 The undersigned does not share the Advocate's view that

Respondent, by waiting until the "prehearing stipulation stage

of the proceeding" to raise this issue, waived his right to have

it considered. Section 120.57(1)(e), Florida Statutes, does

"not specify when . . . a party whose substantial interests are

being determined based on an unadopted rule must plead

entitlement to relief [thereunder]. However, . . . as a matter

of due process [and basic fairness], the agency must be given an

opportunity to present evidence at hearing [to address the

issue] after reasonable notice of the allegations . . . ."

Cadigan v. Agency for Health Care Administration , Nos. 01-

4083MPI and 02-2113MPI, 2004 Fla. Div. Adm. Hear. LEXIS 93 *50-

51 (Fla. DOAH February 9, 2004)(Recommended Order). In the

instant case, the Advocate knew well in advance of the hearing

that whether CEO 87-86 and CEO 89-45 constituted "unadopted

rules" upon which the Commission could not rely pursuant to

Section 120.57(1)(e) was an issue that would be litigated at

hearing (as part of DOAH Case No. 08-0782EC, with which this

case was consolidated for hearing). He therefore had a fair and

adequate opportunity to prepare to address this issue at

hearing.

9 For example, Section 112.313(4), Florida Statutes, provides

that "[n]o public officer, employee of an agency, or local

government attorney or his or her spouse or minor child shall,

at any time, accept any compensation, payment, or thing of value

when such public officer, employee, or local government attorney

knows, or, with the exercise of reasonable care, should know ,

that it was given to influence a vote or other action in which

the officer, employee, or local government attorney was expected

to participate in his or her official capacity."

10 Respondent was not obligated to abstain from voting on these

measures merely because Mr. Sabatello, one of his "principals,"

decided to abstain. A local public officer may abstain from

voting on a measure even if not required to do so by Section

112.3143(3), Florida Statutes. See CEO 88-27 (Fla. Commission

on Ethics April 28, 1988)("[W]e find that the subject

Commissioner is not prohibited from voting on the rezoning of

the property, where he supports a group that is interested in

purchasing the same property and probably will be the building

contractor supervising and performing construction for the new

group in the event the group purchases the property. However,

we are of the opinion that the appearance of a conflict of

interest in this situation is sufficient to permit the

Commissioner to abstain from voting as provided in Section

286.012, Florida Statutes, which authorizes a public officer to

abstain from voting where there is or appears to be a conflict

of interest under one of the provisions of the Code of

Ethics.").

11 That Respondent did not seek to find out more about the

matter is not something that should have any bearing on the

outcome of the instant case inasmuch as, under Section

112.3143(3), Florida Statutes, the obligation to abstain is

based on what the local public officer actually knows at the

time of the vote, not what he or she would have found out upon

further investigating the matter.

12 Ultimately, Respondent's "principals" acquired an ownership

interest in one (Mirasol Parcel 6), but not the other (Mirasol

Parcel 10), of these two parcels. What occurred after the vote,

however, is not outcome-determinative in this case.

13 To the extent that application of the rationale employed in

CEO 87-86 and CEO 89-45 would lead to a contrary conclusion, the

Commission should decline to rely on these advisory opinions,

not because they are "unadopted rules," within the meaning of

Section 120.57(1)(e), Florida Statutes (which they are not), but

rather because they constitute unpersuasive, aberrant precedent

inconsistent with a strict reading of Section 112.3143(3),

Florida Statutes. Moreover, were the Commission to find a

violation of Section 112.3143(3) in the instant case based upon

the "we cannot conclude [the measure] would not inure to the

special gain " reasoning of CEO 87-86 and CEO 89-45 , it would be

ignoring the requirement that a local public officer's guilt of

such a violation be affirmatively established by clear and

convincing evidence. Respondent did not have the burden in this

case to prove that the measures on which he voted "would not

inure to the special gain" of his "principals."

COPIES FURNISHED :

James H. Peterson, III, Esquire

Office of the Attorney General

The Capitol, Plaza Level 01

Tallahassee, Florida 32399-1050

Albert T. Gimbel, Esquire

R. Gary Early, Esquire

Mark Herron, Esquire

Messer, Caparello & Self, P.A.

2618 Centennial Place

Post Office Box 15579

Tallahassee, Florida 32317

Kaye Starling, Agency Clerk

Florida Commission on Ethics

3600 Macclay Boulevard, South, Suite 201

Post Office Drawer 15709

Tallahassee, Florida 32317-5709

Philip C. Claypool, Executive Director

and General Counsel

Florida Commission on Ethics

3600 Macclay Boulevard, South, Suite 201

Post Office Drawer 15709

Tallahassee, Florida 32317-5709

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.