02-002924EC In Re: Samuel G. S. Bennett vs. * Status: Closed Recommended Order on Tuesday, January 7, 2003.

Summary: Town Council chairman made a suggestion for rezoning his property through a method which was unavailable to other citizens.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

IN RE: SAMUEL G. S. BENNETT, ) Case No. 02 - 2924EC

)

Respondent. )

)

)

RECOMMENDED ORDER

This cause came on for formal hearing before Harry L.

Hooper, Ad ministrative Law Judge with the Division of

Administrative Hearing, on October 11, 2002, in Deland, Florida.

APPEARANCES

For Advocate: James H. Peterson, III, Esquire

Office of the Attorney General

The Capitol, Plaza Level 01

Tallaha ssee, Florida 32399 - 1050

For Respondent: Ty Harris, Esquire

Allen Watts, Esquire

Cobb, Cole, & Bell

150 Magnolia Avenue

Daytona Beach, Florida 32115

STATEMENT OF THE ISSUE

The issue is whether Respondent violated Section

112 .313(6), Florida Statutes, by misusing his position as

Chairman of the Town Council to obtain a personal benefit by

attempting to change zoning classifications.

PRELIMINARY STATEMENT

A complaint was filed against Respondent Samuel G.S.

Bennett (Mr. Bennett ) with the Florida Commission on Ethics

(Commission) on August 3, 2000. An investigation followed and

an Advocate's Recommendation was filed on April 2, 2002. The

Advocate recommended a finding of no probable cause.

Nevertheless, the Commission found pr obable cause. This was

noted in an Order Finding Probable Cause filed June 11, 2002.

The matter was forwarded to the Division of Administrative

Hearings and filed July 22, 2002. The case was set for hearing

on September 26, 2002, in DeLand, Florida. S ubsequent to a

motion to set the case on October 11, 2002, the matter was re -

scheduled for hearing on that date and heard as scheduled.

At the hearing, the Advocate presented the testimony of

Robert Allen Keeth, Mary Frances Stoughton, Deborah LeBlanc,

Dav id Gray Leonhard, and Mr. Bennett. The Advocate offered 24

pre - marked exhibits which were admitted into evidence and also

had admitted Advocate's Exhibits 26, 27, 28, and 29. The

Advocate also offered into evidence two large maps which were

received into evidence as Advocate's Exhibits 2B and 2C, which

were also admitted into evidence. The Advocate had admitted a

printout of the "official town map" as it currently exists.

Additionally, by agreement of the parties, the testimony of

Robert Keeth taken dur ing the hearing in the case of In re.

Bonnie Jones , Case Number 02 - 2826EC, is admitted as evidence in

this case.

Respondent presented the testimony of Mary Frances

Stoughton and had nine exhibits accepted into evidence.

A Transcript was filed on November 21, 2002. A Joint

Stipulation and Motion for an Extension of Time to File Proposed

Recommended Orders was filed on November 22, 2002. The Motion

was granted and the time to submit Proposed Recommended Orders

was advanced to December 13, 2002. Advocate a nd Respondent

timely filed Proposed Recommended Orders which were considered

by the Administrative Law Judge in the preparation of this

Recommended Order.

FINDINGS OF FACT

1. Pursuant to Article II, Section 8, Florida

Constitution, and Section 112.32 0, Florida Statutes, the

Commission is empowered to serve as the guardian of the

standards of conduct for the officers and employees of the

state. Pursuant to Sections 112.324 and 112.317, Florida

Statutes, the Commission is empowered to conduct investiga tions

and to issue a Final Order and Public Report recommending

penalties for violations of the Code of Ethics for Public

Officers and Employees (Code of Ethics).

2. Mr. Bennett is subject to the Code of Ethics.

Mr. Bennett, at the time of the hearing, had served as a town

councilman of the Town of Pierson, Florida, for approximately 17

years. During all times pertinent he was the Chairman of the

Town Council of Pierson, Florida.

3. Pierson, Florida, is a town of about 3400 people. It

is known for th e production of ornamental ferns.

4. The Pierson Town Council has the power, through the

adoption of ordinances, to change the zoning classifications of

parcels of land within the Town of Pierson. Prior to 1992, this

was accomplished by maintaining a file of city ordinances

affecting zoning. There was no zoning map.

5. In 1994, a zoning map, printed on a vellum - like medium,

was produced. This map, which will hereinafter be referred to

as the "official zoning map," actually consisted of three

separat e sheets. It was precise and accurate in its depiction

of the location of individual parcels and roads and streets.

However, the lines denoting zoning were crudely drawn with a

grease pencil. In 1999, it was believed it lacked completeness

in that some changes made by ordinance had not been entered upon

it.

6. The "official zoning map" of the Town of Pierson was

maintained by the Town Clerk. The Town Clerk's duties included

maintaining personal control of the map. The Town Clerk, as a

matter of policy , would not permit the map to leave the clerk's

office unless accompanied by the Town Clerk. The map was locked

in a safe in the clerk's office except when it was being viewed

by someone in the presence of the clerk. This policy was in

effect to deter th e possibility that someone might

surreptitiously alter the map.

7. Robert Allen Keeth (Mr. Keeth), is employed as a

planner for the Volusia County Metropolitan Planning

Organization (MPO). The Town of Pierson contributes to the cost

of the operation of t he MPO, and receives services from it.

8. As a planner for the MPO, Mr. Keeth works with the Town

of Pierson and he has done so since at least the early 1990's.

In accomplishing these duties, he works with the Town Council;

the town attorney, Noah McKinn on; the Planning Commission; and

other citizens of Pierson. Mr. Keeth has known Mr. Bennett

since at least 1990.

9. With substantial input from Mr. Keeth, the Town of

Pierson adopted a comprehensive land use plan, entitled the

Unified Land Development R egulations (ULDR). The Town Council

adopted the ULDR on February 22, 1994. Subsequent to its

adoption, the ULDR provides a regulatory scheme for storm water

management, resource protection, signs, and zoning, among other

things.

10. The ULDR provides a method for amending the zoning

scheme. Section 10.6.1 provides for the application process;

Section 10.6.2 provides for Planning Commission review and for a

public hearing; Section 10.6.3 provides for a Town Council

review and a public hearing; and Secti on 10.6.4 provides that

amendments to zoning must be made consistent with the

comprehensive plan by amending the plan if necessary to achieve

that goal. The fee for amending the zoning classification of a

parcel of land, was set at $150.

11. By 1995, di gitalized mapping became commonplace and

Mr. Keeth suggested to the Town Council, during 1995, that the

"official zoning map" of Pierson be replaced with a digital map.

The council agreed that a digital map should be prepared and

adopted. The council did not immediately act on this decision.

12. It was probable that there would be some changes in

connection with the adoption of the digitalized map. This is

because the "official town map" then in use was crudely drawn

and might not be completely accura te in some respects and

because ordinances had been passed affecting zoning and these

changes were not reflected on the official town zoning map.

Moreover, when one changes an original map to a digital map it

is unlikely to scale correctly or align correc tly.

13. The process of preparing a digitalized map is not

designed to bypass the processes set forth in Sections 10.6.1

through 10.6.4 of the ULDR. The creation of a new map through

digitalization was described by Mr. Keeth as, "replacing a map."

14. " Replacing a map" is a form of administrative

rezoning. Administrative rezoning occurs when, after notice and

hearing, an authorized governmental body changes the zoning of a

parcel of property without receipt of an application from the

owner. Section 166 .041, Florida Statutes, addresses

administrative rezoning.

15. It was Mr. Keeth's understanding that the Town Council

desired that Mr. Bennett, would work with him in preparing the

new map. Mr. Keeth and Mr. Bennett had discussions with regard

to the pro cess involved with producing an accurate digitalized

map. Mr. Keeth told Mr. Bennett, and other members of the Town

Council, that they could make suggested changes which might be

reflected in the new, digitalized map. In other words, it was

possible that zoning changes might be effected which were not

supported by any ordinance. This would not occur, in

Mr. Keeth's opinion, until after public workshops and hearings.

16. On November 2, 1999, at approximately 9:00 A.M.,

Mr. Bennett entered the Town Cler k's office. The Town Clerk at

that time was Deborah LeBlanc (Ms. LeBlanc). Mr. Bennett

demanded that Ms. LeBlanc turn over the "official zoning map" to

him so that he could take it out of the Town Hall.

17. Ms. LeBlanc had never permitted the "official zoning

map" to be removed from the Town Hall. Ms. LeBlanc resisted

Mr. Bennett's demand that she relinquish possession of the map

because it was against policy for the map to leave the Town Hall

without being in her possession. By using the force of his

authority, Mr. Bennett was able to make Ms. LeBlanc yield the

map.

18. Mr. Keeth on this occasion had a discussion with

regard to the map at Mr. Bennett's house and in his car. Either

Mr. Keeth at Mr. Bennett's directions, or Mr. Bennett, made

sugg estions for changes in zoning on the "official zoning map"

by marking it with a pencil. Mr. Bennett had an interest in

each of the properties marked.

19. Mr. Bennett returned to the Town Hall at lunch time,

accompanied by Mr. Keeth. Mr. Bennett returne d the "official

zoning map." Later that afternoon, Ms. LeBlanc noticed that

pencil markings had been entered upon the map.

20. The following changes were found by Ms. LeBlanc:

a. A parcel south of West Palmetto Avenue had B - 2

written in pencil. This may be found in the upper left, or

northwest corner, of the section of the "official zoning

map" which also depicts the town park.

b. A parcel adjacent to West Palmetto Avenue west of

County Road 3, but east of the parcel mentioned in "a"

above, had MH - 1 written in pencil.

c. A parcel between West Second Avenue and Short

Street near the Seaboard Coast Line Railroad track had B - 1

entered in pencil. This area is below the center of the

section of the "official zoning map" which also depicts the

town park.

d. A parcel on the corner of Hagstrom Road and County

Road 3 had B - 2 entered in pencil. This area is the upper

center of the section of the "official zoning map" which

also depicts Lake Botts.

21. A designation as B - 1 means property may be used fo r

general retail commercial development. A designation as B - 2

means property may be used for heavy commercial and industrial

development. A designation as MH - 1 means property may be used

for medium density mobile home development. Except for the

Short S treet parcel, the parcels were zoned A - 1, agriculture.

The Short Street parcel was zoned R - 3, medium density single

family residential development.

22. It is the opinion of Mr. Keeth that all of the

proposed changes made with regard to Mr. Bennett's prop erties

were "up - zoning" in that they would reflect an increase in the

value of the property. Moreover, Mr. Bennett testified under

oath that if the suggested changes had been made they would have

been to his benefit.

23. It is found as a fact that either Mr. Bennett made

these changes, or that they were made by Mr. Keeth at

Mr. Bennett's direction, during the time the "official zoning

map" was out of the presence of Ms. LeBlanc.

24. Ms. LeBlanc believed that misconduct was occurring,

and beginning Dece mber 1, 1999, recorded activities concerning

the map and the map replacement process in a log or on "while

you were out" pads. She also called Mr. Keeth and asked him how

the changes could occur without supporting ordinances.

Mr. Keeth told her that Mr. Bennett had told him that there were

ordinances supporting the four proposed changes written in

pencil by or at the direction of Mr. Bennett.

25. As a result of Ms. LeBlanc's conversation with

Mr. Keeth, concerning the changes made in pencil, Ms. LeBla nc,

and Mr. Keeth spent an entire day attempting to locate

ordinances which would support the marks made on the "official

zoning map" by Mr. Bennett or at his direction. They also

attempted to find a supporting ordinance for Councilwoman Jones

who had als o made pencil changes on the "official zoning map."

No supporting ordinances for any of these changes could be

found. This search occurred in November or December of 1999.

26. The only other person to make pencil marks on the map

was Ms. Jones, who was also a town councilperson.

27. Mr. Keeth considered these marks to be "suggestions"

rather than changes. Mr. Keeth knew of no formal process, nor

was the council aware of any formal process, for converting the

official zoning map to a digital map. H owever, it is clear that

Mr. Keeth believed that there would be public workshops as part

of the process and he believed that the Town Council would have

to approve the final draft by ordinance. That he was correct in

that belief is evidenced by the proces s which eventually

resulted in the adoption of a final map on September 12, 2000.

28. On or about December 1, 1999, a draft map dated

November 1999, was delivered to Town Hall with an accompanying

memorandum to Mr. Bennett dated November 29, 1999. The

me morandum notes that the draft reflected the changes

Mr. Bennett had suggested. It also noted that if the changes

were approved by Mr. Bennett the draft should be forwarded to

Ms. LeBlanc for the purpose of scheduling a public hearing.

29. There were s everal draft maps produced during the

period November 1999 through the winter and spring of 2000, but

the drafts were not numbered or dated. As many as six draft

maps were produced and some never left Mr. Keeth's office. The

maps were stored in the hard drive of his computer. On some

drafts the words "Ordinance number ##___, Jan ##___, 2000"

appeared. On the maps entered into evidence, some of the

suggestions made by Mr. Bennett were incorporated.

30. Changing a zoning classification does not

automati cally mean that the market value of the property is

enhanced. However, because people do not ordinarily act

contrary to their economic interest, it is found that the zoning

suggestion made by Mr. Bennett, would have represented value to

him had the change been made.

31. During various times in the Spring of 2000,

Ms. LeBlanc had several conversations with citizens who had

concerns with regard to the map situation. During a discussion

on April 14, 2000, Mr. Keeth told Ms. LeBlanc that Councilperson

Jo nes had asked that the suggestion that she made be discarded.

He further stated that Mr. Bennett had not made such a request.

32. The Town Mayor visited Ms. LeBlanc on April 17, 2000,

and informed her that he was going to ask a respected citizen,

Mr. Gr eenland, to talk with Mr. Bennett about the changes he

made to the "official zoning map" and to convince Mr. Bennett

that what he had done should be undone.

33. On April 25, 2000, Mr. Keeth called Ms. LeBlanc and

told her that Respondent had called and a sked him to put the map

back to its original state.

34. In time, more and more citizens of Pierson learned of

the penciled changes, and as a result, rumor and innuendo with

regard to the changes coursed through the community. As late as

the July 11, 2000 , Town Council meeting, the Bennett suggestions

were still displayed on the draft.

35. In early July, Mr. Keeth concluded that the matter was

getting out of hand. On July 10, 2000, in a memorandum to the

Town Council, he noted that there was a perception that the map

was being amended without full disclosure and review.

36. Amendments were made on the draft maps as the result

of other citizens making suggestions to Mr. Keeth. These

amendments affected the Community Christian Assembly, Lois

Taylor, Wi lsey Bennett, and Shane Crosby. These suggestions

were discussed at the July 11, 2000, Town Council meeting.

37. In the case of Wilsey Bennett, the changes were made

to conform to an existing use. In the case of the Community

Christian Assembly, the property was subject to a special

exception. Neither the Town Council, nor the unhappy and vocal

citizens present at the council meeting of July 11, 2002,

indicated that there was any question about the propriety of

these changes.

38. There is no eviden ce in the record as to the

circumstances of the amendments in the case of Taylor or Crosby.

It cannot be determined if these amendments resulted in

substantial changes or whether they were made to reflect

existing uses or to indicate prior changes which s hould have

been previously placed on the "official zoning map." By

whatever process used, the changes were not made by merely

penciling in the change and neither the Town Council, nor the

unhappy and vocal citizens attending the council meeting of

July 1 1, 2002, indicated that there was any question about the

propriety of these changes.

39. At a Town Council meeting on July 13, 2000, it was

decided that Mr. Keeth would work with the Town Clerk to prepare

another zoning map which represented the current state of

zoning. This was to be done by looking at town records and the

"official zoning map," without reference to the pencil marks

entered with regard to Ms. Jones' or Mr. Bennett's property, and

without reference to any other suggestions for change.

4 0. At a Town Council meeting on September 12, 2000, it

was affirmatively decided that the digitalized zoning map would

be accepted which reflected only changes supported by properly

prepared ordinances. A final draft was approved by Ordinance

Number 00 - 0 3.

CONCLUSIONS OF LAW

41. The Division of Administrative Hearings has

jurisdiction over the subject matter of and the parties to this

proceeding. Section 120.57(1), Florida Statutes.

42. Section 112.322, Florida Statutes, and Rule 34 - 5.0015,

Florida Administrative Code, authorize the Commission to conduct

investigations and to issue final orders and public reports

concerning violations of the Code of Ethics.

43. The burden of proof, absent a statutory directive to

the contrary, is on the party asse rting the affirmative of the

issue of the proceedings. Department of Transportation v.

J.W.C. Co., Inc. , 396 So. 2d 778 (Fla. 1st DCA 1981); Balino v.

Department of Health and Rehabilitative Services , 348 So. 2d 349

(Fla. 1st DCA 1977). Therefore, the Co mmission, through its

Advocate, has the burden of proof.

44. Because of the penalties provided by Section 112.317,

Florida Statutes, the Commission, through its Advocate, must

prove its case by clear and convincing evidence. Latham v.

Florida Com'n on Et hics , 694 So. 2d 83 (Fla. 1st DCA 1997).

45. Section 112.313(6), Florida Statutes, provides as

follows:

112.313 Standards of conduct for public

officers, employees of agencies, and local

government attorneys. --

* * *

(6) MISUSE OF PUBLIC POSITION. -- N o public

officer, employee of an agency, or local

government attorney shall corruptly use or

attempt to use his or her official position

or any property or resource which may be

within his or her trust, or perform his or

her official duties, to secure a sp ecial

privilege, benefit, or exemption for

himself, herself, or others. This section

shall not be construed to conflict with s.

104.31.

46. Section 104.31, Florida Statutes, addresses elections

and is not applicable to this case.

47. At the time the zo ning suggestion was made,

Mr. Bennett was a public officer.

48. Section 112.312(9), Florida Statutes, defines

"corruptly" as "done with a wrongful intent and for the purpose

of obtaining . . . any benefit resulting from some act or

omission of a public s ervant which is inconsistent with the

proper performance of his public duties."

49. It is clear Mr. Bennett penciled in suggestions on the

zoning map with a wrongful intent and for the purpose of

obtaining a benefit. Moreover, his actions in this regard were

inconsistent with the proper performance of his public duties.

50. An analysis of the evidence of record reveals that

Mr. Keeth to some extent misled Mr. Bennett when he informed him

that he could make zoning changes by penciling in suggestions.

51. Mr. Bennett's intent was to secure a benefit that was

not available to the other citizens of Pierson. This is why the

action was wrongful. Notice to the citizens of Pierson inviting

them to pencil suggestions on the "official zoning map" was not

pr ovided. Indeed, the only other suggestions penciled on the

map were made by Ms. Jones. Perhaps when the matter was

discussed at Town Council meetings, or workshops addressing the

matter, other citizens could at that time make suggested

changes. But as M r. Keeth pointed out, a suggestion already

appearing on the digitalized map, such as Mr. Bennett's, could

slip through.

52. The motivation for this change was to obtain a zoning

change for his parcels without having to pay a $150 fee per

parcel and withou t having to participate in the process set

forth in Sections 10.6.1 through 10.6.4 of the ULDR. The

probability of the change actually being made cannot be measured

but it is clear that it was at least theoretically possible and

therefore no further inqui ry need be made.

53. The actions of Mr. Bennett were inconsistent with the

proper performance of his public duties. As Chairman of the

Town Council it was his job to ensure the fair and equal

treatment of all citizens and in this he failed.

54. Mr. Benn ett's testimony at the hearing lacked

credibility. He dissembled with regard to whether he

participated in the making of the pencil marks on the parcels.

He was evasive as to which properties he owned. His testimony

demonstrated that he knew that his ac tions in this matter were

ethically unacceptable.

55. The Advocate has proven by clear and convincing

evidence that Mr. Bennett violated Section 112.313(6), Florida

Statutes.

56. Section 112.317, Florida Statutes, provides as

follows:

112.317 Penalties

(1) Violation of any provision of this

part, including, but not limited to, any

failure to file any disclosures required by

this part or violation of any standard of

conduct imposed by this part, or violation

of any provision of s. 8, Art. II of the

State Constitution , in addition to any

criminal penalty or other civil penalty

involved, shall, pursuan t 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:

1. Impeachment

2. Removal from office.

3. Suspension from office.

4. Publi c 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.

RECOMMENDAT ION

Based upon the findings of fact and conclusions of law, it

is

RECOMMENDED: That a final order and public report be

entered finding that Respondent, Samuel G.S. Bennett, violated

Subsection 112.313(6), Florida Statutes. It is further

recommended th at the Commission recommend that he be publicly

censured and reprimanded and that he be assessed a fine in the

amount of $4,000.

DONE AND ENTERED this 7th day of January, 2003, in

Tallahassee, Leon County, Florida.

___________________________________

HA RRY L. HOOPER

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675 SUNCOM 278 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 7th day of January, 2003.

COPIES FURNISHED :

Ty Harris, Esquire

Allen Watts, Esquire

Cobb, Cole & Bell

150 Magnolia Avenue

Daytona Beach, Florida 32115

James H. Peterson, III, Esquire

Office of the Attorney General

The Capitol, Plaza Level 01

Tallahassee, Florida 32399 - 1050

Kaye Starling, Agency Clerk

Commission on Ethics

2822 Remington Green Circle, Suite 101

Post Office Box 15709

Tallahassee, Florida 32317 - 5709

Philip C. Claypool, General Counsel

Commis sion on Ethics

2822 Remington Green Circle, Suite 101

Post Office Box 15709

Tallahassee, Florida 32317 - 5709

Virlindia Doss, Esquire

Advocates for the Commission on Ethics

Office of the Attorney General

Department of Legal Affairs

The Capitol, Plaza Leve l 01

Tallahassee, Florida 32399 - 1050

Bonnie J. Williams, Executive Director

Commission on Ethics

2822 Remington Green Circle, Suite 101

Post Office Box 15709

Tallahassee, Florida 32317 - 5709

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the ri ght 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.