12-004148EC In Re: Robert Skidmore, Iii vs. *
 Status: Closed
Settled and/or Dismissed prior to entry of RO/FO on Friday, July 12, 2013.


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1BEFORE THE DAT·E FILE·D

5STATE OF FLORIDA

8COMMISSION ON ETHICS APR 2 2 2015

15COMMISSION ON ETHICS

18In re ROBERT SKIDMORE, III, )

24) Complaint No. 11-121

28Respondent. ) DOAH Case No. 14-1912EC

34)

35) Final Order No. 15-012

40FINAL ORDER AND PUBLIC REPORT

45This matter came before the State of Florida Commission on Ethics ("Commission"),

59meeting in public session on April 17, 2015, on the Recommended Order ("RO") of an

76Administrative Law Judge ("ALJ") of the Division of Administrative Hearings ("DOAH")

91rendered on February 27, 2015.

96Background

97This matter began with the filing of an ethics complaint by Michael Brown

110("Complainant") against Robert Skidmore, III ("Respondent" or "Skidmore") indicative of the

125Respondent's having violated Section 112.313(6), Florida Statutes, as a Charlotte County

136Commissioner. Thereafter, the Commission conducted a preliminary investigation of the

146complaint and, based on the investigation, found that probable cause existed, and the matter was

161sent to DOAH for hearing. Subsequently, the matter was relinquished back to the Commission,

175which conducted further investigation, resulting in the probable cause finding which presented

187issues which were subsequently heard by the ALJ at DOAH and which resulted in the RO, which

204recommends that the Commission enter a final order and public report finding that the

218Respondent twice violated Section 112.313(6) and recommending a civil penalty of $5,000 for

232each violation (total, $10,000) and public censure and reprimand. The Respondent timely filed

246exceptions to the RO and the Commission Advocate filed a response to the exceptions. Both the

262Respondent and the Advocate were noticed as to the Commission's consideration of the RO and

277the exceptions, and both appeared and made argument at the consideration.

288Standards of Review of a DOAH Recommended Order

296Under Section 120.57(1)(1), Florida Statutes, an agency may reject or modify the

308conclusions of law over which it has substantive jurisdiction and the interpretations of

321administrative rules over which it has substantive jurisdiction. When rejecting or modifying

333such conclusion of law or interpretation of administrative rule, the agency must state with

347particularity its reasons for rejecting or modifying such conclusion or interpretation and must

360make a finding that its substituted conclusion or interpretation is as or more reasonable than that

376which was rejected or modified.

381However, the agency may not reject or modify findings of fact made by an ALJ unless

397the agency first determines from a review of the entire record, and states with particularity in its

414order, that the findings of fact were not based upon competent, substantial evidence or that the

430proceedings upon which the findings were based did not comply with essential requirements of

444law. See, e.g., Freeze v. Department of Business Regulation, 556 So. 2d 1204 (Fla. 5th DCA

4601990), and Florida Department of Corrections v. Bradley, 510 So. 2d 1122 (Fla. 1st DCA 1987).

476Competent, substantial evidence has been defined by the Florida Supreme Court as such

489evidence as is "sufficiently relevant and material that a reasonable mind would accept it as

504adequate to support the conclusions reached." DeGroot v. Sheffield, 95 So. 2d 912, 916 (Fla.

5191957).

520The agency may not reweigh the evidence, may not resolve conflicts in the evidence, and

535may not judge the credibility of witnesses, because such evidential matters are within the sole

550province ofthe ALJ. Heifetz v. Department of Business Regulation, 475 So. 2d 1277, 1281 (Fla.

5651st DCA 1985). Consequently, if the record ofthe DOAH proceedings discloses any competent

578substantial evidence to support a finding of fact made by the ALJ, the Commission on Ethics is

595bound by that finding.

599Having reviewed the RO, the record of the DOAH proceeding, the exceptions, and the

613responses to the exceptions, and having heard argument of both the Respondent and the

627Advocate, the Commission on Ethics makes the following rulings, findings, conclusions,

638determinations, dispositions, and recommendations:

642Rulings on Respondent's Exceptions

646Respondent timely filed seventeen exceptions. Each will be treated below via numbering

658corresponding to that in the exceptions.

664In exception 1, the Respondent takes exception to paragraph 6 of the RO, which finds

679that Mr. and Ms. Hemmes sought the Respondent's assistance getting approval for their zoning

693application. The Respondent argues that the finding is not supported by competent substantial

706evidence. This exception is rejected. The finding is based upon competent substantial evidence.

719In exception 2, the Respondent takes exception to paragraph 7 of the RO, which finds

734that the Respondent called Ms. Mullen- Travis about the application. The Respondent argues that

748the finding is not supported by competent substantial evidence. This exception is rejected. The

762finding is based upon competent substantial evidence.

769In exception 3, the Respondent takes exception to a portion of paragraph 8 of the RO,

785which finds that the Respondent told Ms. Mullen- Travis that he had some nice people in his

802office and that he needed help getting zoning approval for them. The Respondent argues that the

818finding is not supported by competent substantial evidence. This exception is rejected. The

831finding is based upon competent substantial evidence.

838In exception 4, the Respondent takes exception to paragraph 9 of the RO, which finds

853that the Respondent identified the applicant and Ms. Mullen- Travis explained why the zoning

867had not been approved. The Respondent argues that the findings are not supported by competent

882substantial evidence. This exception is rejected. The findings are based upon competent

894substantial evidence.

896In exception 5, the Respondent takes exception to paragraph 11 of the RO, which finds

911that the Respondent implicitly offered a reward if Ms. Mullen- Travis helped the Hemmes. The

926Respondent argues that the finding is not supported by competent substantial evidence. This

939exception is rejected. The finding is based upon competent substantial evidence.

950In exception 6, the Respondent takes exception to a portion of paragraph 13 of the RO,

966which finds that the Respondent offered to get Ms. Mullen- Travis an autographed photo of Rusty

982Wallace (a NASCAR driver) and tickets to a race. The Respondent argues that the finding is not

999supported by competent substantial evidence. This exception is rejected. The finding is based

1012upon competent substantial evidence.

1016In exception 7, the Respondent takes exception to paragraph 14 of the RO, which finds

1031that Ms. Mullen- Travis accurately considered that the tickets and photo were offered in exchange

1046for her approval of the application to the benefit of the Hemmes, and which finds that the call

1064from the Respondent in which the tickets and photo were mentioned was made by the

1079Respondent in his official capacity. The Respondent argues that the findings are not supported

1093by competent substantial evidence. This exception is rejected. The findings are based upon

1106competent substantial evidence.

1109In exception 8, the Respondent takes exception to paragraph 16 of the RO, which finds

1124that the Respondent's call to Ms. Mullen- Travis was contrary to the Charlotte County Charter

1139and the practice under it, and therefore, that it was not an authorized act pursuant to his duties or

1158authorities as a county commissioner. The Respondent argues that there was no evidence

1171presented which showed that the board of county commissioners ever brought a suit against the

1186Respondent for a violation of the non-interference provision of the County Charter. This

1199exception is rejected. Factual findings of this paragraph are based upon competent substantial

1212evidence. To the extent that the contents of this paragraph contain conclusions oflaw (as to what

1228are prohibitions within the County Charter or what type of acts are not authorized by the

1244Charter), the Commission cannot reject or modify the conclusions because the Charter (its

1257meaning) is not a law or administrative rule over which the Commission has substantive

1271jurisdiction. Section 120.57(1 )(1), Florida Statutes. Also, to the extent that the contents of the

1286paragraph contain findings of ultimate fact, such are within the province of the ALJ to determine

1302and are based upon competent substantial evidence. Gain v. Commission on Ethics, 658 So. 2d

13171131 (Fla. 1st DCA 1995).

1322In exception 9, the Respondent takes exception to a portion of paragraph 17 of the RO,

1338which finds that Ms. Mullen- Travis' account of a telephone call between the Respondent and Ms.

1354Mullen- Travis is more credible than that of the Respondent. The Respondent argues that the

1369finding is not supported by competent substantial evidence. This exception is rejected. The

1382finding is based upon competent substantial evidence.

1389In exception 10, the Respondent takes exception to a portion of paragraph 19 of the RO,

1405which finds that the Respondent also contacted Ms. Jenkins to ask her to approve the Beach

1421Road Boutique zoning application. The Respondent argues that the finding is not supported by

1435competent substantial evidence. This exception is rejected. The finding is based upon

1447competent substantial evidence.

1450In exception 11, the Respondent takes exception to a portion of paragraph 20 of the RO,

1466which finds that the Respondent had a conversation with Ms. Jenkins conveying the

1479Respondent's desire that Ms. Jenkins do him a favor by shutting down J.J.'s Restaurant, and

1494which finds that the Respondent wanted Ms. Jenkins to find code violations for J.J.'s Restaurant.

1509The Respondent argues that the findings are not supported by competent substantial evidence.

1522This exception is rejected. The findings are supported by competent substantial evidence.

1534In exception 12, the Respondent takes exception to paragraph 21 of the RO, which finds

1549that the Respondent said he would make sure that Ms. Jenkins got a pay raise or a pay grade

1568increase for doing the things referred to in paragraph 20 of the RO. The Respondent argues that

1585the finding is not supported by competent substantial evidence. This exception is rejected. The

1599finding is based upon competent substantial evidence.

1606In exception 13, the Respondent takes exception to paragraph 22 of the RO, which finds

1621that either the ex-boyfriend or ex-husband of the Respondent's wife and father of her child had an

1638interest in J.J.'s Restaurant, that there was conflict between the two families, and that the

1653Respondent had also requested the Charlotte County director of Growth Management, Jeff

1665Ruggieri, to take code enforcement actions against J.J.'s Restaurant. The Respondent argues that

1678the findings are not supported by competent substantial evidence. This exception is rejected.

1691The findings are based upon competent substantial evidence.

1699In exception 14, the Respondent takes exception to paragraph 27 of the RO, which finds

1714that the Respondent's requests to Ms. Jenkins and Mr. Ruggieri to act against J.J.'s Restaurant

1729were in violation of the Charlotte County Charter and, therefore, not authorized acts pursuant to

1744his duties or responsibilities as a county commissioner. The Respondent argues that the findings

1758are not supported by competent substantial evidence. This exception is rejected. The findings

1771are based upon competent substantial evidence. Further, to the extent that the contents of

1785paragraph 27 contain conclusions of law (as to what are prohibitions within the County Charter

1800or what type of acts are not authorized by the Charter), the Commission cannot reject or modify

1817the conclusions because the Charter (its meaning) is not a law or administrative rule over which

1833the Commission has substantive jurisdiction. Section 120.57(1)(1), Florida Statutes. Also, to the

1845extent that the contents of paragraph 27 contain findings of ultimate fact, such are within the

1861province of the ALJ to determine and are based upon competent substantial evidence. Goin,

1875supra.

1876In exception 15 (labeled by the Respondent as a second Exception 14 via a scrivener's

1891error), the Respondent takes exception to paragraph 36 of the RO, which finds that clear and

1907convincing evidence proves that the Respondent sought to obtain a benefit for Mr. and Ms.

1922Hemmes, that he sought to do it using his direct access to county employees, even though the

1939Charlotte County Charter prohibited him from doing so, that this establishes his wrongful intent,

1953and that his offer of an inducement also demonstrates wrongful intent. The Respondent argues

1967that there is no evidence that he acted with corrupt intent or that the Hemmes received any

1984special benefit. This exception is rejected. The paragraph primarily is factual in nature and, as

1999such, is based upon competent substantial evidence. To the extent that the paragraph construes

2013the meaning of Section 112.313(6), Florida Statutes, a law over which the Commission has

2027substantive jurisdiction, we do not disagree with the conclusions of the ALJ.

2039In exception 16 (labeled as 15), the Respondent takes exception to paragraph 3 7 of the

2055RO, which finds that clear and convincing evidence proves that the Respondent sought to obtain

2070a personal benefit, harm to the father of his wife's child, using his direct access to county

2087employees, even though the Charlotte County Charter prohibited him from doing so, and that this

2102establishes wrongful intent. This exception is rejected. Assuming in argument that the

2114Respondent takes exception to the factual findings of the paragraph, which he does not expressly

2129do, the paragraph is based upon competent substantial evidence. To the extent that the paragraph

2144contains findings of ultimate fact, the same are based upon competent substantial evidence which

2158we are unable to disturb. Goin, supra. To the extent the paragraph construes the meaning of

2174Section 112.313(6), Florida Statutes, a law over which the Commission has substantive

2186jurisdiction, we do not disagree with the conclusions ofthe ALJ.

2196In exception 17 (labeled as 16), the Respondent takes exception to paragraph 38 of the

2211RO, which finds that the Florida Commission on Ethics proved by clear and convincing evidence

2226that the Respondent twice violated Section 112.313(6), Florida Statutes. The Respondent argues

2238that there is no evidence that he acted with requisite corrupt intent or that the Hemmes or anyone

2256else received any special benefit. This exception is rejected. The factual findings, findings of

2270ultimate fact, and legal conclusions of paragraph 38 are based upon competent substantial

2283evidence, are beyond the Commission's statutory ability to disturb, or are sound, for the reasons

2298stated above regarding exception 16.

2303Findings of Fact

2306The Commission on Ethics accepts and incorporates into this Final Order And Public

2319Report the findings of fact in the Recommended Order from the Administrative Law Judge of the

2335Division of Administrative Hearings rendered on February 27, 2015. The findings are based

2348upon competent substantial evidence and the proceedings upon which the findings are based

2361complied with essential requirements of law.

2367Conclusions of Law

2370The Commission on Ethics accepts and incorporates into this Final Order And Public

2383Report the conclusions of law in the Recommended Order from the Administrative Law Judge of

2398the Division of Administrative Hearings rendered on February 27, 2015.

2408Disposition

2409Accordingly, the Commission on Ethics, via rendition of this Final Order And Public

2422Report, accepts the recommendation of the Administrative Law Judge that it enter a final order

2437and public report finding that the Respondent, Robert Skidmore, III, twice violated Section

2450112.313(6), Florida Statutes, and that it recommend imposition of a civil penalty against the

2464Respondent in the total amount of$10,000, together with public censure and reprimand.

2477ORDERED by the State of Florida Commission on Ethics meeting in public session on

2491April 17, 2015.

2494Date Rendered

2496Linda M. Robison

2499Chair

2500THIS ORDER CONSTITUTES FINAL AGENCY ACTION. ANY PARTY WHO IS

2510ADVERSELY AFFECTED BY THIS ORDER HAS THE RIGHT TO SEEK JUDICIAL

2521REVIEW UNDER SECTION 120.68 AND SECTION 112.3241, FLORIDA STATUTES, BY

2531FILING A NOTICE OF ADMINISTRATIVE APPEAL PURSUANT TO RULE 9.110,

2541FLORIDA RULES OF APPELLATE PROCEDURE, WITH THE CLERK OF THE

2551COMMISSION ON ETHICS, P.O. DRAWER 15709, TALLAHASSEE, FLORIDA 32317-

25605709, OR AT THE COMMISSION'S PHYSICAL ADDRESS OF 325 JOHN KNOX ROAD,

2572BUILDING E, SUITE 200, TALLAHASSEE, FLORIDA 32303); AND BY FILING A COPY

2584OF THE NOTICE OF APPEAL ATTACHED TO WHICH IS A CONFORMED COPY OF

2597THE ORDER DESIGN A TED IN THE NOTICE OF APPEAL ACCOMPANIED BY THE

2610APPLICABLE FILING FEES WITH THE APPROPRIATE DISTRICT COURT OF APPEAL.

2620THE NOTICE OF ADMINISTRATIVE APPEAL MUST BE FILED WITHIN 30 DAYS OF

2632THE DATE THIS ORDER IS RENDERED.

2638cc: Mr. Emmett Mitchell, IV, Attorney for Respondent

2646Ms. Melody A. Hadley, Commission Advocate

2652Mr. Michael Brown, Complainant

2656The Honorable Jolin D. C. Newton, II,

2663Division 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: 04/22/2015
Proceedings: Agency Final Order
PDF:
Date: 06/24/2014
Proceedings: (Respondent's) Motion for Continuance filed (filed in the wrong case).
PDF:
Date: 07/12/2013
Proceedings: Respondent's Notice of Service of Request for Admissions filed (filed in the wrong case).
PDF:
Date: 07/12/2013
Proceedings: Order Closing File and Relinquishing Jurisdiction. CASE CLOSED.
PDF:
Date: 07/11/2013
Proceedings: Amended Notice of Hearing by Video Teleconference (hearing set for July 16 and 17, 2013; 9:00 a.m.; Sarasota and Tallahassee, FL; amended as to video hearing).
PDF:
Date: 07/01/2013
Proceedings: Respondent's Response to Advocate's Motion to Relinquish Jurisdiction Based on Newly Discovered Evidence filed.
PDF:
Date: 06/28/2013
Proceedings: Advocate's Motion to Relinquish Jurisdiction Based on Newly Discovered Evidence filed.
PDF:
Date: 06/28/2013
Proceedings: Order Denying Motion to Amend Order of Probable Cause.
PDF:
Date: 06/27/2013
Proceedings: Respondent's Response to Advocate's Motion to Amend Allegations to Conform with the Evidence filed.
PDF:
Date: 06/25/2013
Proceedings: Advocate's Motion to Amend Allegations to Conform with the Evidence filed.
PDF:
Date: 06/20/2013
Proceedings: Advocate's Notice of Abandonment of Allegation Three filed.
PDF:
Date: 05/30/2013
Proceedings: Notice of Service of Response to Advocate's First Request for Admissions filed.
PDF:
Date: 05/22/2013
Proceedings: Advocate's Notice of Service of Request for Admissions filed.
PDF:
Date: 04/23/2013
Proceedings: Order Granting Continuance and Re-scheduling Hearing and Pre-hearing Conference (hearing set for July 16 and 17, 2013; 9:00 a.m.; Punta Gorda, FL).
PDF:
Date: 04/19/2013
Proceedings: Advocate's Objection to Respondent's Motion for Continuance filed.
PDF:
Date: 04/19/2013
Proceedings: Motion for Continuance filed.
PDF:
Date: 03/08/2013
Proceedings: Notice of Telephonic Pre-hearing Conference (set for June 14, 2013; 10:00 a.m.).
PDF:
Date: 03/08/2013
Proceedings: Order Re-scheduling Hearing (hearing set for June 24 and 25, 2013; 9:00 a.m.; Punta Gorda, FL).
PDF:
Date: 03/07/2013
Proceedings: Notice of Taking Deposition (of E. Mullen-Travis) filed.
PDF:
Date: 03/06/2013
Proceedings: Response to Order Requiring Proposed Hearing Dates filed.
PDF:
Date: 02/28/2013
Proceedings: Amended Notice of Taking Deposition (of M. Franks) filed.
PDF:
Date: 02/28/2013
Proceedings: Amended Notice of Taking Deposition (of R. Desjardins) filed.
PDF:
Date: 02/27/2013
Proceedings: Notice of Taking Deposition (of M. Franks) filed.
PDF:
Date: 02/27/2013
Proceedings: Notice of Taking Deposition (of R. Desjardins) filed.
PDF:
Date: 02/27/2013
Proceedings: Order Canceling Hearing and Requiring Proposed Hearing Dates (parties to advise status by March 5, 2013).
PDF:
Date: 02/22/2013
Proceedings: Joint Motion for Continuance filed.
PDF:
Date: 02/21/2013
Proceedings: Notice of Service of Advocate's Suplemental Responses to Respondent's Discovery Requests filed.
PDF:
Date: 02/08/2013
Proceedings: Notice of Service of Advocate's Responses to Respondent's Discovery Requests filed.
PDF:
Date: 02/06/2013
Proceedings: Notice of Taking Deposition (of D. Quick) filed.
PDF:
Date: 02/06/2013
Proceedings: Notice of Taking Deposition (of R. Sandrock) filed.
PDF:
Date: 01/24/2013
Proceedings: Notice of Taking Deposition (of R. Skidmore) filed.
PDF:
Date: 01/15/2013
Proceedings: Notice of Telephonic Pre-hearing Conference (set for February 27, 2013; 9:00 a.m.).
PDF:
Date: 01/14/2013
Proceedings: Order of Pre-hearing Instructions.
PDF:
Date: 01/14/2013
Proceedings: Notice of Hearing (hearing set for March 14 and 15, 2013; 9:00 a.m.; Punta Gorda, FL).
PDF:
Date: 01/14/2013
Proceedings: Notice of Taking Deposition (of J. Ruggieri) filed.
PDF:
Date: 01/10/2013
Proceedings: Notice of Service of Respondent's Discovery Requests filed.
PDF:
Date: 01/10/2013
Proceedings: Notice of Taking Deposition (of D. Wear) filed.
PDF:
Date: 01/10/2013
Proceedings: Notice of Taking Deposition (of R. Baltz) filed.
PDF:
Date: 01/10/2013
Proceedings: Notice of Taking Deposition (of D. Nicolosi) filed.
PDF:
Date: 01/10/2013
Proceedings: Notice of Taking Deposition (of E. Weaver) filed.
PDF:
Date: 01/10/2013
Proceedings: Notice of Taking Deposition (of B. Powers) filed.
PDF:
Date: 01/10/2013
Proceedings: Notice of Taking Deposition (of J. Colburn) filed.
PDF:
Date: 01/10/2013
Proceedings: Notice of Taking Deposition (of S. Hemmes) filed.
PDF:
Date: 01/10/2013
Proceedings: Notice of Taking Deposition (of S. Jenkins) filed.
PDF:
Date: 01/10/2013
Proceedings: Notice of Taking Deposition (of E. Mullen-Travis) filed.
PDF:
Date: 01/08/2013
Proceedings: Response to Initial Order filed.
PDF:
Date: 01/02/2013
Proceedings: Advocate's Notice of Service of Advocate's Discovery Requests filed.
PDF:
Date: 12/27/2012
Proceedings: Initial Order.
PDF:
Date: 12/27/2012
Proceedings: Order Finding Probable Cause filed.
PDF:
Date: 12/27/2012
Proceedings: Advocate's Recommendation filed.
PDF:
Date: 12/27/2012
Proceedings: Report of Investigation filed.
PDF:
Date: 12/27/2012
Proceedings: Determination of Investigative Jurisdiction and Order to Investigate filed.
PDF:
Date: 12/27/2012
Proceedings: Agency referral filed.

Case Information

Judge:
JOHN D. C. NEWTON, II
Date Filed:
12/27/2012
Date Assignment:
12/27/2012
Last Docket Entry:
08/23/2017
Location:
Sarasota, Florida
District:
Middle
Agency:
ADOPTED IN TOTO
Suffix:
EC
 

Counsels

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Related Florida Statute(s) (4):