11-003967EC In Re: Herbert Zischkau, Iii vs. Status: Closed Recommended Order on Wednesday, February 8, 2012.

Summary: Respondent's vote at City Commission meeting did not violate section 112.3143(3)(a).

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

IN RE: HERBERT ZISCHKAU, III , ) Case No. 11 - 3967EC

)

Respondent . )

)

RECOMMENDED ORDER

A final hearing was conducted in this case on November 29 ,

20 11 , via video teleconference with sites in Daytona Beach and

Tallahassee , Florida , before Barbara J . Staros , Administrative

Law Judge with the Division of Administrative Hearings .

APPEARANCES

For Advocate : Melody A. Hadley , Esquire

Office of t he Attorney General

The Capitol , Plaza Level 01

Tallahassee, Florida 32399 - 1050

For Respondent: Darren J. Elkind , Esq uire

Paul & Elkind , P.A.

505 Deltona Boulevard, Suite 105

Deltona , Florid a 3 2 725

Lonnie Neil Groot , Esquire

Stenstrom, McIntosh, Colbert,

Whigham, P.A.

1 00 1 Heathrow Park Lane , Suite 4001

Lake Ma ry , Florida 32 746

STATEMENT OF THE ISSUE

The issue is w hether Respondent violated s ection

112.31 43(3 ) (a) , Florida Statutes (20 09 ) , by voting on a

December 9, 2009 , motion on whether to investigate his actions,

and if so, what is an appropriate penalty.

PRELIMINARY STATEMENT

On June 22 , 20 11 , the Florida Commission on Ethics

(Commission) issued an Order Finding Probable Cause to believe

that Respondent Herbert S. Zischkau , as a member of the D eltona

C i ty Commission , violated s ection 112.31 4 3( 3 ) (a) , Florida

Statutes (2009) . The Commission on Ethics found probable cause

with regard to one of seven alleged violations. The Commission

forwarded the case to the Division of Administrative Hearings on

August 11 , 20 11 .

A Notice of Hearin g dated August 25 , 20 11 , scheduled the

hearing for November 2 , 20 11 .

On October 1 3 , 20 11 , the Advocate filed an u nopposed Motion

for Continuance . The undersigned issued an Order Granting

Continuance and Re - scheduling Hearing by Video - teleconference on

October 1 4 , 20 11 , rescheduling the hearing for November 29 ,

20 11 . The hearing took place as scheduled .

At hearing, the Advocate did not call witnesses . The

Advocate and R espondent offered Joint Exhibits 1 through 3,

which were admitted into evidence. R espondent offered the

testimony of Randall Morris and the deposition testimony of

Marsha Segal - George, Esquire , as Respondent's Exhibit 1 , which

was admitted into evidence .

A T ranscript compris ing of one volume was filed on

December 12 , 20 11 . Th e A dv ocate timely filed her Proposed

Recommended Order . On December 22, 2011, Respondent filed a

Motion for Extension of Time to File Proposed Recommended Order,

to which the Advocate filed an objection. Upon consideration,

the Motion for E xtension of T ime is granted. The parties'

Proposed Recommended Orders have been duly considered in the

preparation of this Recommended O rder.

Refer ences to the Florida Statutes are to the 20 11 version,

unless otherwise indicated.

FINDINGS OF FACT

1. At all times perti nent to these proceedings , Respondent

served as a member of the D eltona C i ty Commission ( City

Commission ) .

2. Respondent is subject to the requirements of Part III,

c hapter 112, Florida Statutes, the Code of Ethics for public

officers and employees, fo r his acts and omissions as a member

of the C i ty Commission.

Background

3. On August 18, 2008, the City Commission approved a

multi - million dollar Land Purchase Contract by which the City of

Deltona (the City) was to a cquire property from Howland

Cross ings, LLC.

4. Respondent was an opponent of the purchase of the

property by the City from Howland Crossings, LLC.

5. As a condition for closing on the property, Howland

Crossings was obligated to obtain a permit from the St. Johns

River Water Managem ent District (SJRWMD). On November 29, 2009,

Respondent filed a Petition for Ad ministrative Hearing with the

SJ RWMD in opposition to the issuance of the permit.

6. On December 8, 2009, the City M anager, Faith Miller,

sent a memorandum to the Mayor an d City Co mmissioners which

addressed Ms. Miller's concern with Respondent having filed the

Petition for Administrative Hearing related to the proposed

purchase of the property.

The Vote in Question

7. Also on December 8, 2009, the City Mayor, Dennis

Mul der, wrote a memo to Commission members informing them that

he had decided to call a special meeting for the following day.

The memo stated in its entirety :

I've decided to call a Special Meeting for

Wednesday, December 9, 2009 at 4:30 pm in

the Commissi on Chambers regarding

Commissioner Zischkau's petition with SJRWMD

(St. Johns River Water M anagement District).

Items for exclusive discussion will be:

A. Potential Formal Request by Commission

to have Commissioner Zischkau withdraw his

petition with S JRWMD.

B. Conflict letter received by City Manager

regarding Mr. Fowler and solutions.

C. Concerns regarding possible violations of

the City of Deltona Charter and/or Florida

laws of various nature, yet undefined, and

possible processes that may be taken by the

Commission.

Thank you,

Ma yor Mulder

8 . Mar sha S egal - George served in the capacity of acting

City Attorney at the December 9, 2009 , City Commission meeting

at issue here. Ms. Segal - George has worked in local government

for over 30 years , havi ng served as a county attorney, county

manager, city attorney, and city manager.

9. According to Ms . Segal - George , it is customary to

receive an agenda package prior to the commencement of a meeting

of a public body to review in advance. She did not re ceive any

materials to review prior to the December 9 meeting in question.

10. Before the meeting commenced, Ms. Segal - George talked

to the Mayor briefly to express her concerns and discomfort that

she did not have any documents regarding the meetin g , as it was

her responsibility to advise the Commission and it "creates a

very -- kind of uncomfortable feeling for the lawyer, because we

like to be prepared and we like to be able to advise our

client."

11. Documents were distributed by the mayor afte r the

meeting started. These documents comprised three proposed

motions under the heading "Potential Motion s offered by the

Mayor for special meeting of December 9, 2009. "

12. Item C, the motion at issue in this proceeding, read s

as follows:

I move t hat due to possible past, present

and future conflict that the City Manager

quickly hire an attorney or firm she feels

is experienced enough, affordable and has

not done work for the City in the past to

assist this Commission thru (sic) her on

helping to d etermine whether the actions of

Commissioner Zischkau violated the City

Charter, or any other laws or rules and, if

applicable, any and all methods of

resolution that are available to the City

Commission. In addition, for the purity of

this process and it s results once this

person or firm is hired, no Commissioner or

the Mayor, or officer, permanent or acting,

of the City, other than the City Manager,

shall contact this attorney or firm. The

results shall be released to the Commission

as a body at one tim e for consideration.

13 . Ms. Segal - George was "shocked" by this motion, in that

the city attorney had not been consulted with regards to these

issues and "they were fairly serious issues . . . it is not the

type of thing that you would put in the hands of a city manager.

. . it would be something that the attorney . . . would be

involved, and so I was shocked by it."

14. When asked during her deposition if she had thought at

that time that Respondent or anyone else had a conflict of

interest regardi ng the vote, would she have interrupted and said

something about it, she replied. "Yes, I would have. And I

didn't." It continues to be Ms. Segal - George's opinion that

Respondent did not ha ve a conflict o f interest when he voted on

the motion at issue. 1 /

15 . Respondent voted against the motion. However, the

motion passed with a vote of 4 - 3 . Prior to the vote,

Commissioner Zischkau did not state publically to the assembly

the nature of the vote or the nature of any potential inter est

he might have in the matter. The fact that this motion related

to Commissioner Zischkau w as abundantly clear from the wording

of the motion itself to anyone reading it or hearing it read at

the meeting.

16 . As a result of the passage of the motion, a law firm

other tha n the one serving as City Attorney was hired by the

City Commission to provide a legal opinion as to whether

Respondent violated the City Charter and the provisions of the

Ethics Code. The conclusion reached by this law firm was that

Respondent's actions did not violate either the City Charter or

the Ethics Code. 2 /

17. Randall Morris has served as a City Commissioner of

the City of Lake Mary, Mayor of the City of Lake Mary, County

Commissioner for Seminole County, Chairman of the Board of

County Commissi oners of Seminole County, and on numerous other

public bodies. In his experience, receiving an agenda packet

with proposed motions at the dais with no advance notice of what

he would be receiving and what will be voted upon " . . . would

be extraordinary, and in my experience, I've never experienced

that."

18 . The weight of the evidence does not establish t he

allegation that Respondent 's vote in question inured to his

private gain or loss when he voted on the motion to r etain

counsel to investigate his actions regarding filing a petition

with the SJRWMD relative to the purchase of land from Howland

Crossings .

CONCLUSIONS OF LAW

19 . The Division of Administrative Hearings has

jurisdiction over the parties and the subject matter of this

proceeding. See § 120.57(1), Fla. Stat.

20 . Section 112.322, Florida Statutes, and Florida

Administrative Code Rule 34 - 5.0015, authorize the Commission to

conduct investigations and to make public reports on complaints

concerning violations of Part III, c hapter 112, Florida Statutes

(the Code of Ethics for Public Officers and Employees).

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

the contrary, is on the party asserting the affirmative of the

issue of the proceedings. Dep ' t of Transp . v. J.W.C. C o., Inc. ,

396 So. 2d 778 (Fla. 1st DCA 1981); Balino v. Dep ' t of HRS , 348

So. 2d 349 (Fla. 1st DCA 1977). In this proceeding, the

Commiss ion, through its Advocate, is asserting the affirmative ,

i.e. , that Respondent violated s ection 112 . 31 4 3( 3 ) (a) , Florid a

Statutes , b y voting on a motion regarding whether to investigate

his actions.

22 . Commission proceedings that seek recommended penalties

against a public officer or employee require proof of the

alleged violation(s) by clear and convincing evidence. See

Latham v. Fla . CommÓn on Ethics , 694 So. 2d 83 (Fla. 1st DCA

1997). Therefore, the Advocate has the burden to establish the

allegations in the Order Finding Probable Cause by clear and

convincing evidence.

23 . As noted by the Supreme Court of Flori da:

Clear and convincing evidence requires that

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 Henson , 913 So. 2d 579 , 590 (F la. 2005 ), ( quoting

Slo mo witz v. Walker , 429 So. 2d 797, 800 (Fla. 4 th DCA 1983) ) .

24 . It is alleged in the Order Finding Probable cause that

Respondent violated section 112.3143(3)(a) by voting at the

December 9, 2009 City Commission meeting on a mot ion to retain

counsel to investigate whether or not Respondent violated the

City Charter and the Ethics Code.

25 . Section 112.31 4 3( 3 ) (a) , Florida Statutes, provides as

follows :

Voting conflicts. -

* * *

(3)(a) No county, muni cipal, 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 ;

. . . Such public officer shall, prior to

the vote being taken, publically state to

the assembly the natu re 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 recordi ng the minutes of the

meeting, who shall incorporate the

memorandum in the minutes. (emphasis added)

26 . The term "co nflict " or "conflict of interest" is

defined by s ection 112.312( 8 ), Florida Statutes, as follows:

( 8 ) "Co nflict or " conflict of inter est"

means a situation in which regard for a

private interest tends to lead to disregard

of a public duty or interest.

27 . In construing the pertinent language of s ection

112.3143(3)(a), th e Advocated interpreted the word "special" in

regard to the vote in question as it relates to Respondent being

the person impacted by the vote. The Advocate interpreted

"special gain or loss" as "an interest in the outcome of the

investigation and any ramifications, vindication or implication

of Respondent's actions, personal reputation/observations of the

public, expense and time related to the investigation. "

28 . The critical question in this analysis is, what does a

"special private loss or gain" mean? This was addressed by the

Eleventh Circuit Court of Appeal s in George v. City of Cocoa,

Fla. , 78 F.3d 494 , 496 (11th Cir. 1996) . I n its discussion of

the issue, the Court referenced several Commission opinions.

The Court's opinion reads in pertinent part:

Florida law imposes on elected officials an

affirmative duty on all matters before them;

abstaining from a vote is prohibited unless

"there is, or appears to be, a possible

conflict of interest under . . .

§ 112.3143." . . . The statutory provision

dealing with mandatory abstention from city

coun cil voting is Fla. Stat. Ann.

§ 112.3143(3)(a). . . . Under

§ 112.3143(3)(a), the identification of a

"special gain or loss" to the city council

member as a result of his or her vote is a

necessary condition for disqualif ication.

A "special gain or loss" described by the

voting conflicts statute almost always (if

not always) refer s to a financial interest

of the public official that is directly

enhanced by the vote in question. See Izaak

Walton League of America v. Monroe Count y ,

448 So. 2d 1170, 1173 n.8 (Fla. App. 3 Dist.

1984) (explaining that § 112.3143 does not

apply "to bias or prejudice on the part of a

public officer based on other than private

economic interests or relationships"

(quoting Op. Fla. Comm. Ethics 79 - 14

(19 79))); see also Op. Fla. Comm. Ethics 90 -

20 (1990) (holding that a city council

member, whose property would be affected by

proposed special assessment, must abstain

from voting, "given the direct , personal ,

financial effect striking the assessment

would have on [his] interests); Op. Fla.

Comm. Ethics 79 - 14 (1979) (holding that a

city council member may not abstain from

voting on matters involving his personal foe

and stating that "it is clear that, when

adopting the Code of Ethics, the Legislature

was con cerned primarily with the effect of a

public official's economic interests and

relationships upon the performance of his

public duties, rather than the effect of his

personal preferences and animosities.")

(emphasis in o riginal ) .

29 . Thus, elected offi cials have an affirmative duty to

vote, unless the circumstances fit within an exception as in

section 112.3143(3)(a). In interpreting this statutory

provision, the Commission has acknowledged that this exception

should be strictly construed. See Comm'n on Ethics Op. 08 - 11 .

(" . . .[T]he primary purpose of Section 286.012 is to require

public officers to vote and take a position on the issues before

their public bodies and thus that its exception to the voting

requirement should be strictly construed, lest officials and

their boards be paralyzed due to excessive voting abstentions

. . . .")

30 . As the Eleventh Circuit found in George , supra , a

"special private gain" described in section 112.3143(3)(a)

almost always, if not always, refers to a financia l interest.

Moreover, the Commission has "not found the statute to be

applicable to measures where there was sufficient uncertainty at

the time of the vote as to whether, and, if so, to what extent,

gain or loss would result from the measure, that we foun d such

gain or loss to be remote and speculative. " Comm'n on Ethics

Op. 07 - 15. At the time of the vote, it was impossible to know

that the result of any "investigation" would be negative or

positive. Applying the logic of that advisory opinion, the

advi ce of the independent law firm, even if it had found a

conflict existed, would not have bound the Commission in its

actions.

3 1 . Further, there was sufficient uncertainty at the time

of the vote, as to whether, and if so, to what extent, any

"vindica tion or implication" or "expenses and time related to

the investigation" would result. The Mayor's motion itself was

extremely vague and ambiguous re ferenc ing the "possible

violations" of the City Charter and "Florida laws of various

nature, yet undefined " and "possible processes that may be

taken" by the City Commission. The undersigned is not persuaded

that Respondent's personal reputation or observations of the

public constitute a special private gain or loss as contemplated

by section 112.3143(3)(a).

3 2 . The evidence adduced at hearing failed to clearly and

convincingly establish that Respondent's vote at the December 9,

2009 , City Commission meeting inured to his special gain or

loss.

RECOMMENDATION

Based on the foregoing Findings of Fact and Co nclusions of

Law, it is:

RECOMMENDED :

T hat the Commission enter a f inal o rder f inding that

Respondent , Herbert S. Zischkau , did not violate s ection

112.31 4 3( 3 ) (a) , Florida Statutes .

DONE AND ENTE RED this 8 th day of Febr uary , 20 12 , in

Tallahassee, Leon County, Florida.

S

Barbara J. Staros

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Cle rk of the

Division of Administrative Hearings

this 8 th day of Febru ary , 20 12 .

END NOTE S

1 / The undersigned is aware that neither she nor the Commission

on Ethics is bound by the legal opinions of the City Attorney or

the outside counsel hired to address this issue.

2 / It is noted that the discussion contained in this legal

opinion regarding a possible violation of section 112.3143

focused on Respondent's vote on a property escrow matter at a

December 30, 2009, Commission meeting. It is further noted,

however, that the legal opinion is extensive (19 pages) and

addresses the "application of the relevant City Charter and

Ethics Code provisions" regarding the following question:

Whether the conduct and activities of Commissioner Zischkau

concerning the P roperty transaction violate the City Charter

and/or applicable ethics provisions provided by Part III of

c hapter 112, Florida Statutes.

COPIES FURNISHED :

Melody A. Hadley, Esquire

Office of the Attorney General

The Capitol, P laza L evel 01

Tallahassee, F lorida 32399

Lonnie Neil Groot, Esquire

Stenstrom, McIntosh, Colbert,

Whigham, P.A.

1001 Heathrow Park Lane, Suite 4001

Lake Mary, Florida 32746

Kaye Starling , Agency Clerk

Florida Commission on Ethics

Post Office Drawer 15709

Tallahassee, Florida 3 2317 - 5709

Darren J. Elkind, Esquire

Paul and Elkind, P.A.

505 Deltona Boulevard, Suite 105

Deltona, Florida 32725

Virlindia Doss, Executive Director

Florida Commission on Ethics

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 F inal Order in this case.