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.

BEFORE THE DAT·E FILE·D

STATE OF FLORIDA

COMMISSION ON ETHICS APR 2 2 2015

COMMISSION ON ETHICS

In re ROBERT SKIDMORE, III, )

) Complaint No. 11-121

Respondent. ) DOAH Case No. 14-1912EC

)

) Final Order No. 15-012

FINAL ORDER AND PUBLIC REPORT

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

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

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

rendered on February 27, 2015.

Background

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Standards of Review of a DOAH Recommended Order

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

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

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

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

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

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

which was rejected or modified.

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

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

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

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

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

1990), and Florida Department of Corrections v. Bradley, 510 So. 2d 1122 (Fla. 1st DCA 1987).

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

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

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

1957).

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

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

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

1st DCA 1985). Consequently, if the record ofthe DOAH proceedings discloses any competent

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

bound by that finding.

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

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

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

determinations, dispositions, and recommendations:

Rulings on Respondent's Exceptions

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

corresponding to that in the exceptions.

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

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

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

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

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

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

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

finding is based upon competent substantial evidence.

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

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

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

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

finding is based upon competent substantial evidence.

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

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

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

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

substantial evidence.

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

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

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

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

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

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

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

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

upon competent substantial evidence.

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

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

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

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

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

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

competent substantial evidence.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

1131 (Fla. 1st DCA 1995).

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

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

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

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

finding is based upon competent substantial evidence.

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

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

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

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

competent substantial evidence.

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

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

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

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

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

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

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

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

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

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

finding is based upon competent substantial evidence.

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

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

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

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

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

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

The findings are based upon competent substantial evidence.

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

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

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

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

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

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

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

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

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

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

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

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

supra.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

stated above regarding exception 16.

Findings of Fact

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

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

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

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

complied with essential requirements of law.

Conclusions of Law

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

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

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

Disposition

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

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

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

112.313(6), Florida Statutes, and that it recommend imposition of a civil penalty against the

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

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

April 17, 2015.

Date Rendered

Linda M. Robison

Chair

THIS ORDER CONSTITUTES FINAL AGENCY ACTION. ANY PARTY WHO IS

ADVERSELY AFFECTED BY THIS ORDER HAS THE RIGHT TO SEEK JUDICIAL

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

FILING A NOTICE OF ADMINISTRATIVE APPEAL PURSUANT TO RULE 9.110,

FLORIDA RULES OF APPELLATE PROCEDURE, WITH THE CLERK OF THE

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

5709, OR AT THE COMMISSION'S PHYSICAL ADDRESS OF 325 JOHN KNOX ROAD,

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

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

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

APPLICABLE FILING FEES WITH THE APPROPRIATE DISTRICT COURT OF APPEAL.

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

THE DATE THIS ORDER IS RENDERED.

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

Ms. Melody A. Hadley, Commission Advocate

Mr. Michael Brown, Complainant

The Honorable Jolin D. C. Newton, II,

Division of Administrative Hearings