13-001099EC In Re: David Mclean vs. *
 Status: Closed
Settled and/or Dismissed prior to entry of RO/FO on Friday, September 27, 2013.


View Dockets  

1Commission were legally sufficient to indicate possible violation of Sections 112.313(6),

12112.313(7)(a), and 112.3143(3)(a) and ordered Commission staff to investigate the complaint,

23resulting in a Report oflnvestigation ("ROI") dated December 7, 2012.

35By order dated January 30, 2013, the Commission found probable cause to believe the

49Respondent violated Section 112.313(6), Florida Statutes, by using a City of Margate credit card

63for personal use (Count 1), violated Section 112.3143(3)(a), Florida Statutes, by voting on a City

78Commission measure to censure him (Count II), and violated Section 112.313(7)(a), Florida

90Statutes (Count IV), by being employed by and representing an establishment seeking approval

103before the City Commission to use an alcoholic beverage license. The Commission found no

117probable cause to believe the Respondent violated Section 112.3143(3)(a), Florida Statutes, by

129voting on City Commission measures regarding City credit card use (Count III).

141The matter was forwarded to DOAH for assignment of an ALJ to conduct a formal

156hearing and prepare a recommended order. A formal evidentiary hearing was held before the

170ALJ via video teleconference on July 10, 2014. After conducting off-the-record negotiations, the

183Advocate and the Respondent agreed to the dismissal of the count alleging that the Respondent

198improperly voted on a motion to censure him in violation of Section 112.3143 (Count II). The

214Advocate and Respondent also agreed that, if the Ethics Commission has jurisdiction over the

228count alleging the Respondent improperly represented his employer before the City Commission

240in violation of Section 112.313(7)(a)(Count IV), the ALJ would apply a factual stipulation to be

255filed by the parties to determine whether the Respondent committed the alleged violation. The

269Respondent and the Advocate further agreed that, if the Advocate prevailed on Count IV, the

284Ethics Commission would impose no additional penalty in addition to the penalty imposed for

298violation of Count I (alleging that the Respondent misused a City credit card). The agreement

313between the Respondent and the Advocate stipulated that if Respondent is guilty of Count I,

328Count IV, or Counts I and IV, the penalty would be a $3,000 civil fine, censure, and a reprimand.

348The Respondent and the Advocate filed a joint factual stipulation on July 18, 2014. Both the

364Respondent and the Advocate filed proposed recommended orders with the ALJ.

375On August 28, 2014, the ALJ entered his Recommended ("RO") finding, under

389Conclusions of Law, that the Commission lacked investigative jurisdiction under Section

400112.322(1 ), Florida Statutes, and thus lacked jurisdiction to issue a public report finding that

415Respondent committed the violation alleged in Count IV and, for these reasons, DOAH lacked

429subject matter jurisdiction over Count IV. The ALJ further found that, even if the Ethics

444Commission had jurisdiction, the Advocate failed to prove a violation of Section

456112.313(7)(a)(Count IV). The ALJ recommended that the Commission enter a final order

468dismissing Counts II and IV, determining that Respondent violated Section 112.313(6), as

480alleged in Count I, and imposing a fine of $3,000, censure, and public reprimand against the

497Respondent. 1

499On September 11, 2014, the Advocate timely filed (with the Commission) exceptions to

512the RO. No exception was filed by the Respondent. Both the Respondent and the Advocate

527were notified of the date, time, and place of our final consideration of this matter; and both were

545given the opportunity to make argument during our consideration.

554Standards of Review

557Under Section 120.57(1)(1), Florida Statutes, an agency may reject or modify the

569conclusions of law and interpretations of administrative rules contained in a recommended order.

582However, the agency may not reject or modify findings of fact made by an ALJ unless a review

6001 Count IlL alleging that the Respondent improperly voted on measures involving the use of

615City credit cards in violation of Section 112.3143(3 )(a), Florida Statutes, is not at issue in this

632Final Order. As stated above, the Commission in its January 30, 2013, order found no probable

648cause as to Count III.

653of the entire record demonstrates that the findings were not based on competent, substantial

667evidence or that the proceedings on which the findings were based did not comply with the

683essential requirements of law. See, e.g., Freeze v. Department of Business Regulation, 556 So.

6972d 1204 (Fla. 5th DCA 1990), and Florida Department of Corrections v. Bradley, 510 So. 2d

7131122 (Fla. 1st DCA 1987). "Competent, substantial evidence" has been defined by the Florida

727Supreme Comi as such evidence as is "sufficiently relevant and material that a reasonable mind

742would accept it as adequate to support the conclusions reached." DeGroot v. Sheffield, 95 So. 2d

758912, 916 (Fla. 1957).

762The agency may not reweigh the evidence, may not resolve conf1icts in the evidence, and

777may not judge the credibility of witnesses, because such evidential matters are within the sole

792province ofthe ALJ. Heifetz v. Department of Business Regulation, 475 So. 2d 1277, 1281 (Fla.

8071st DCA 1985). Consequently, if the record of the DOAH proceedings discloses any competent,

821substantial evidence to support a finding of fact made by the ALJ, the Commission on Ethics is

838bound by that finding.

842Under Section 120.57(1)(1), Florida Statutes, an agency may reject or modify the

854conclusions of law over which it has substantive jurisdiction and the interpretations of

867administrative rules over which it has substantive jurisdiction. When rejecting or modifying

879such conclusion of law or interpretation of administrative rule, the agency must state with

893particularity its reasons for rejecting or modifying such conclusion or interpretation and must

906make a finding that its substituted conclusion or interpretation is as or more reasonable than that

922which was rejected or modified.

927Having reviewed the RO and the entire record of the proceeding and the Advocate's

941exceptions and having heard the arguments of the Advocate and the Respondent, the

954''

955Commission on Ethics makes the following rulings, findings, conclusions, recommendation, and

966disposition:

967Rulings on Advocate's Exceptions

9711. In her first exception, the Advocate takes issue with paragraphs 27 and 28 of the

987RO (which is within the portion ofthe RO labeled CONCLUSIONS OF LAW), and which state:

100227. The sole jurisdictional questions are whether Complainant swore or affirmed

1013to the facts constituting Counts I and IV. These questions arise because

1025Complainant never complied with the form's request for an explanation of his

1037complaints, but instead signed, under oath, two complaint forms, to which

1048Complainant attached a total of 14 documents. One of these documents consists

1060of a typewritten letter by Complainant that, although not addressed to the Ethics

1073Commission, serves as an explanation of the complaints stated in the letter.

1085Several of these documents contain Complainant's handwritten notes, which

1094include various complaints against Respondent.

109928. In addressing these jurisdictional issues, the Advocate misses the point in its

1112supplemental proposed recommended order when it argues that Complainant is

1122not required to base his complaint on matters within his personal knowledge, or

1135that the Ethics Commission may consider matters materially related to the

1146complaint at issue. Resolution of the jurisdictional questions in this case does not

1159turn on the quality of Complainant's knowledge of the facts, or whether the facts

1173reported by Complainant are hearsay or are materially related to the subject

1185complaint. The jurisdictional questions are whether Complainant has filed a

1195sworn complaint as to the matters contained in Counts I and IV or to anything else

1211to which the subjects of Counts I and IV are materially related. The jurisdictional

1225statute does not require much, but it requires that a complainant be willing to, and

1240in fact, swear or affirm to the facts underlying her complaint.

12512. More particularly, the Advocate requests that the Commission reject all of the

1264content or verbiage of paragraphs 27 and 28 and substitute the following language (offered on

1279page 5 of the Advocate's Exceptions to Recommended Order) for the totality of the language of

1295RO paragraphs 27 and 28:

1300The Commission on Ethics has an obligation to investigate alleged violations of

1312the Florida Ethics Code: Upon a written complaint executed on a form prescribed

1325by the commission and signed under oath or affirmation by any person ...

1338Section 112.324(l)(a) Fla. Stat. The Complaint and Complaint Amendment forms

1348tiled in this case are forms prescribed by the Commission through Rule 34-7.010,

1361F.A.C. The Oath sworn to by the Complainant states:

1370''

1371I, the person bringing this complaint do depose on oath or affirmation and say that

1386the facts set forth in the foregoing complaint and attachments thereto are true and

1400correct to the best of my knowledge and belief. (Complaint p.l, Amended

1412Complaint p. 1)

1415In this case, the Complainant submitted properly signed and notarized valid

1426complaints.

14273. In her second exception, the Advocate takes issue with paragraphs 29, 30, and 31

1442of the RO (which is within the portion of the RO labeled CONCLUSIONS OF LAW), and which

1459state:

146029. Complainant clearly explained--and thus swore to--the charges set forth in

1471Count I. Complainant stated that Respondent misused a City credit card in the

1484handwritten notes on the following documents: the City credit card agreement, the

1496Ethics Commission letter dated May 16, 2012, and the minutes of the meeting of

1510the City commission on March 21, 2012. Also, Complainant's typewritten letter at

1522page six of the Complaint twice charges Respondent with misusing a City credit

1535card.

153630. Complainant has not so clearly explained--and thus sworn to--the charges set

1548forth in Count IV. No handwritten notation touches on Respondent's appearance

1559at the August 15, 2011, special meeting of the City commission for the Tiki Bar,

1574nor is this matter mentioned in the typewritten letter on page six of the Complaint.

158931. Respondent's appearance at the August 15, 2011, special meeting of the City

1602commission is mentioned in only two documents--both online articles in the

1613MargateNews.net. Signing the complaint form verifies that "the facts set forth in

1625the complaint and attachments thereto are true and correct." This means either that

1638the complainant is verifying the facts explained in the complaint and contained in

1651the attachments, or the complainant is verifying the facts explained in the

1663complaint and verifying that the attached documents are true copies of the

1675originals. In other words, the form leaves unanswered the question of whether the

1688language, "the facts set forth in the," modifies "complaint" or "complaint" and

"1700attachments."

17014. The Advocate requests that the Commission delete paragraphs 29, 30, and 31 and

1715substitute the following language (offered on page 7 of the Advocate's Exceptions to

1728Recommended Order), for the totality of the language in RO paragraphs 29, 30, and 31:

1743The handwritten notes on the attachments to the complaint and amended

1754complaint address several issues, among which are the non-payment of a

1765promissory note, Respondent's misuse of City credit cards and his dealings

1776concerning a tiki bar. (Complaint pp. 4, 6, Amended Complaint pp. A3-A8)

1788Complainant also submitted copies of articles from the Margate news. (Complaint

1799pp. 7-9) One article details the special meeting wherein Respondent represented

1810his then-business partner for a vote on whether to grant his business' partner's tiki

1824bar a 2COP. (county permission to sell alcohol from a particular establishment.)

1836(Complaint p. 8) The news articles were an "attachment thereto" and as such, they

1850became part of the sworn complaint to be considered by the Commission.

18625. In her third exception, the Advocate takes issue with paragraphs 32, 33, and 34 of

1878the RO (which is within the portion of the RO labeled CONCLUSIONS OF LAW), and which

1894state:

189532. The Advocate would argue that "complaint" and "attachments" are modified

1906by "the facts set forth in the." But case law does not favor a liberal interpretation

1922of this jurisdictional statute in support of jurisdiction. Compare Kinzel v. City of

1935N. Miami, 212 So. 2d 327 (Fla. 3d DCA 1968) (failure to timely file a verified

1951complaint within statutory timeframe to challenge an election not excused due to

1963the "general proposition that when a statutory action is availed of[,] the provisions

1977for its exercise must be strictly followed").

198533. In an older, but more extensive, opinion, Edgerton v. International Co., 89 So.

19992d 488 (Fla. 1956), the Florida Hotel and Restaurant Commissioner commenced a

2011proceeding to suspend or revoke a hotel and coffee shop license, and the licensee

2025filed a petition for a writ of prohibition. A statute required the commissioner to

2039commence any suspension and revocation proceeding within 60 days of the

2050alleged offense. No statute defined when a proceeding was commenced, but one

2062statute provided that a proceeding "shall be by" serving a copy of the notice on

2077the licensee, and another statute provided that all notices to be served shall be

"2091delivered personally ... or by registered letter." The commissioner mailed the

2102notice on the 59th day, and it was delivered on the 61 st day.

211634. The court rejected the argument that commencement occurred when the

2127commissioner mailed the notice. Citing several opinions, the court noted that

2138administrative authorities are creatures of statute and have only such powers that

2150statutes confer on them, and the court is required to prohibit any exercise of

2164power if there is "reasonable doubt" as to its "lawful existence" (citation omitted).

2177Id. at 489-90.

21806. The Advocate requests that the Commission delete paragraphs 32, 33, and 34 and

2194substitute the following language (offered on page 8 of the Advocate's Exceptions to

2207Recommended Order), for the totality of the language in RO paragraphs 32, 33, and 34:

2222Prior court ruling supports a liberal inclusion of facts within a sworn complaint.

2235The Fifth District Court of Appeal in Osborne v. Commission on Ethics, 951 So.

22492d 25 (Fla. 5th DCA 2007), reviewed a Commission on Ethics Order denying an

2263award of attorney's fees from Milanick payable to Osborne because the body of

2276the ethics complaint filed by Milanick did not contain the false allegations that

2289formed the basis of the award. In Osborne. the false allegations were

2301subsequently submitted by Milanick's counsel during the course of the

2311investigation. Id. at 27. The Court considered the added false statements to be

2324part of the complaint and reversed the Commission's Order denying the award,

2336stating that the Commission's view of the complaint was "too restricted." I d.

23497. In her fourth exception, the Advocate takes issue with paragraph 35 of the RO

2364(which is within the portion ofthe RO labeled CONCLUSIONS OF LAW), and which states:

237835. Reasonable doubt exists as to whether Complainant swore or affirmed to

2390Respondent's appearance on August 15, 2011, at the special meeting of the City

2403commission. To resolve this doubt in favor of jurisdiction is unsupported by the

2416case law and risks ignoring the statutory requirement of a sworn complaint. If a

2430complainant is not required to identify his complaints in a clear manner, but is

2444allowed merely to attach a thick pile of news articles lobbing a variety of charges

2459at public officials and meeting minutes covering a myriad of statements by the

2472public and commission members, the sworn complaint form is a mere conduit of

2485the unsworn complaints of the publisher and commission.

24938. The Advocate requests that the Commission delete paragraph 35 and substitute

2505the following language (offered on page 9 of the Advocate's Exceptions to Recommended

2518Order), for the totality of the language in RO paragraph 35:

2529The layperson wishing to file an ethics complaint should not be held to the

2543standard wherein he be charged with labeling the public official's wrongdoing

2554with all possible statutory violations. The Complainant in this case attached

2565handwritten notations and filed newspaper articles which include reference to

2575Respondent representing his employer/business partner at a Commission meeting

2584to grant the new tiki bar a license to sell alcohol. (Complaint p. 8) The Complaints

2600exemplify what is required to put the subject matter and events before the

2613Commission on Ethics under Section 112.324, Florida Statutes and the

2623Commission Rules. The Executive Director of the Commission on Ethics is

2634empowered to review the facts contained in the complaint, determine whether a

2646breach of public trust exists, and order an investigation as appropriate. Rule 34-

26595002(1), F.A.C. In sum. a layperson should not be limited to presenting possible

2672wrongdoing only by wording the submission as would a lawyer.

26829. In her fourth exception, the Advocate takes issue with paragraph 36 of the RO

2697(which is within the portion of the RO labeled CONCLUSIONS OF LAW), and which states:

271236. As for Count IV, the Ethics Commission lacks investigative jurisdiction,

2723under section 112.322(1), Florida Statutes, and thus lacks the jurisdiction, under

2734section 112.322(2)(b ), Florida Statutes, to issue a public report finding that

2746Respondent committed the violation alleged in Count IV. For these reasons,

2757DOAH lacks subject matter jurisdiction over Count IV.

276510. The Advocate requests that the Commission delete paragraph 36 and substitute

2777the following language (offered on page 9 of the Advocate's Exceptions to Recommended

2790Order), for the totality of the language in RO paragraph 36:

2801In addition, the Commission on Ethics may look outside the four corners of the

2815complaint and consider violations and parties not contemplated by the

2825complainant. The legislature actually made this a duty of the Commission.

2836Section 112.322, Florida Statutes states:

2841It is the duty of the Commission on Ethics to receive and

2853investigate sworn complaints of violation of the code of ethics as

2864established in this part and of any other breach of public trust, as

2877provided in s. 8(f), Art. II of the State Constitution, including

2888investigation of all facts and parties materially related to the

2898complaint at issue. (Emphasis added.)

2903Rule 34-5.0043, F.A.C. further explains:

2908(1) Facts materially related to the complaint include facts which tend to show:

2921* * *

2924(a) A separate violation of Art. II, Sec. 8, Fla. Const. or the Code of Ethics by the

2942respondent from that alleged in the complaint which arise out of or in connection

2956with the allegations of the complaint.

2962* * *

2965(2) Where facts materially related to the complaint are discovered by the

2977investigator during the course of the investigation, the Executive Director shall

2988order an investigation of them and the investigator shall include them in the

3001investigative report. The Advocate may recommend and the Commission may

3011order a public hearing as to those violations of the Code of Ethics which are

3026indicated by such facts. From that point in the proceedings until final disposition

3039of the complaint, such facts shall be treated as if they were initially alleged in the

3055complaint at issue.

305811. In her fifth exception, the Advocate takes issue with paragraph 37 to the extent

3073that it restates prior conclusions rejected by the Commission.

308212. The Advocate requests that the Commission revise paragraph 37 to delete the

3095following language (otiered on page 11 of the Advocate's Exceptions to Recommended Order)

3108from RO paragraph 37:

"3112In the alternative, even if the Ethics Commission has jurisdiction ... "

312313. To the extent the ALJ has concluded that the Commission lacks investigative

3136jurisdiction where a complaint contains allegations based in whole or in part on attached

3150documents, where such allegations do not expressly state all possible statutory violations, and

3163where the Commission investigation includes facts materially related to the complaint at issue,

3176such is an erroneous view of the law. Therefore, while we adopt RO paragraphs 27, 28, 29, 30,

319431, 32, 33, 34, 35, 36, and 37 to the extent such paragraphs make factual findings, we reject

3212their contents, express or implied, concluding the Commission lacks investigative jurisdiction as

3224stated above and we adopt the revisions recommended in the Advocate's exceptions.

323614. In so doing, we are aware that the ALJ made a determination that the evidence in

3253this matter was insufficient to establish that the Respondent violated Section 112.313(7)(a),

3265Florida Statutes, and his determination is of an evidential fact nature or an "ultimate fact" nature,

3281which we cannot now disturb. Go in v. Commission on Ethics, 658 So. 2d 1131, 1138 (Fla. 1st

3299DCA 1995).

330115. However, as the agency Constitutionally and statutorily charged with

3311administering Section 112.3143(3)(a), our action as to paragraphs 27, 28, 29, 30, 31, 32, 33, 34,

332735, 36, and 37 of the RO is not without good reason. While the proofs in this particular case did

3347not rise to the level of establishing a violation of Section 112.313(7)(a), we cannot adopt as our

3364own a view that the Commission lacks investigative jurisdiction as stated above in paragraph 13.

3379By substituting our view of the law for that of the ALJ, we find that the substituted view is as or

3400more reasonable than the ALJ's view.

340616. To summarize, we are aware of the requirements and limitations of Chapter 120,

3420Florida Statutes, concerning review by an agency of a recommended order of an ALJ. Goin,

3435supra. However, we also are aware of deference accorded an agency regarding its construction

3449of a statute which it administers. Velez v. Commission on Ethics, 739 So. 2d 686 (Fla. 5th DCA

34671999). To those ends, it is not our intent or our action to disturb any finding of fact of the ALJ;

3488but it is our intent and our effect, under Section 120.57(1 )(1), Florida Statutes, to ref1ect the

3505correct legal interpretation of the Commission's jurisdiction.

3512Findings of Fact

3515The Commission on Ethics accepts and incorporates into this Final Order and Public

3528Report the findings of fact in the Recommended Order from the Division of Administrative

3542Hearings.

3543Conclusions of Law

3546Except to the extent rejected or modified above, the Commission on Ethics accepts and

3560incorporates into this Final Order and Public Report the conclusions of law in the Recommended

3575Order from the Division of Administrative Hearings.

3582Disposition

3583Accordingly, the Commission on Ethics dismisses Counts II and IV, determines that

3595Respondent violated Section 112.313(6), as alleged in Count L and recommends that the

3608Governor impose a tine of $3,000, censure, and public reprimand against the Respondent as

3623agreed by the Respondent and the Advocate and recommended by the ALJ.

3635ORDERED by the State of Florida Commission on Ethics meeting in public session on

3649October 24, 2014.

3652Date Rendered

3654-

3655inda McKee Robison

3658Chair

3659THIS ORDER CONSTITUTES FINAL AGENCY ACTION. ANY PARTY

3667WHO IS ADVERSELY AFFECTED BY THIS ORDER HAS THE RIGHT TO

3678SEEK JUDICIAL REVIEW UNDER SECTION 120.68, AND SECTION

3686112.3241, FLORIDA STATUTES, BY FILING A NOTICE OF

3694ADMINISTRATIVE APPEAL PURSUANT TO RULE 9.110 FLORIDA

3701RULES OF APPELLATE PROCEDURE, WITH THE CLERK OF THE

3710COMMISSION ON ETHICS, AT EITHER 325 JOHN KNOX ROAD,

3719BUILDING E, SUITE 200, TALLAHASSEE, FLORIDA 32303 OR P.O.

3728DRAWER 15709, TALLAHASSEE, FLORIDA 32317-5709; AND BY FILING

3736A COPY OF THE NOTICE OF APPEAL ATTACHED TO WHICH IS A

3748CONFORMED COPY OF THE ORDER DESIGNATED IN THE NOTICE OF

3758APPEAL ACCOMPANIED BY THE APPLICABLE FILING FEES WITH THE

3767APPROPRIATE DISTRICT COURT OF APPEAL. THE NOTICE OF

3775ADMINISTRATIVE APPEAL MUST BE FILED WITHIN 30 DAYS OF THE

3785DATE THIS ORDER IS RENDERED.

3790cc: Mr. C. Edward McGee, Attorney for Respondent

3798Ms. Diane L. Guillemette, Commission Advocate

3804Mr. Michael Casey, Complainant

3808The Honorable Robert E. Meale, Division of Administrative Hearings

Select the PDF icon to view the document.
PDF
Date
Proceedings
PDF:
Date: 08/23/2017
Proceedings: Agency Final Order and Public Report filed.
PDF:
Date: 10/29/2014
Proceedings: Agency Final Order
PDF:
Date: 09/27/2013
Proceedings: Order Closing File and Relinquishing Jurisdiction. CASE CLOSED.
PDF:
Date: 09/27/2013
Proceedings: Motion to Relinquish Jurisdiction filed.
PDF:
Date: 08/02/2013
Proceedings: Order Continuing Case in Abeyance (parties to advise status by September 23, 2013).
PDF:
Date: 08/02/2013
Proceedings: Joint Status Update and Motion to Remain in Abatement filed.
PDF:
Date: 06/06/2013
Proceedings: Order Continuing Case in Abeyance (parties to advise status by July 31, 2013).
PDF:
Date: 05/31/2013
Proceedings: Joint Status Update and Motion to Remain in Abatement filed.
PDF:
Date: 04/10/2013
Proceedings: Order Placing Case in Abeyance (parties to advise status by May 31, 2013).
PDF:
Date: 04/10/2013
Proceedings: Joint Response to Initial Order and Motion to Abate filed.
PDF:
Date: 04/10/2013
Proceedings: Unilateral Response to Initial Order and Motion to Abate filed.
PDF:
Date: 03/27/2013
Proceedings: Initial Order.
PDF:
Date: 03/27/2013
Proceedings: Advocate's Notice of Service of Advocate's Discovery Requests filed.
PDF:
Date: 03/26/2013
Proceedings: Order of Finding Probable Cause filed.
PDF:
Date: 03/26/2013
Proceedings: Advocate's Amended Recommendation (as to Allegation Four) filed.
PDF:
Date: 03/26/2013
Proceedings: Advocate's Recommendation filed.
PDF:
Date: 03/26/2013
Proceedings: Report of Investigation filed.
PDF:
Date: 03/26/2013
Proceedings: Determination of Investigative Jurisdiction and Order to Investigate filed.
PDF:
Date: 03/26/2013
Proceedings: Complaint 12-062 Amendment filed.
PDF:
Date: 03/26/2013
Proceedings: Complaint filed.
PDF:
Date: 03/26/2013
Proceedings: Agency referral filed.

Case Information

Judge:
CLAUDE B. ARRINGTON
Date Filed:
03/26/2013
Date Assignment:
03/27/2013
Last Docket Entry:
08/23/2017
Location:
Margate, Florida
District:
Southern
Agency:
ADOPTED IN TOTO
Suffix:
EC
 

Counsels

Related Florida Statute(s) (7):

Related Florida Rule(s) (2):