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

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

112.313(7)(a), and 112.3143(3)(a) and ordered Commission staff to investigate the complaint,

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

112.322(1 ), Florida Statutes, and thus lacked jurisdiction to issue a public report finding that

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

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

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

112.313(7)(a)(Count IV). The ALJ recommended that the Commission enter a final order

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

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

Respondent. 1

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

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

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

given the opportunity to make argument during our consideration.

Standards of Review

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

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

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

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

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

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

cause as to Count III.

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

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

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 Comi 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 conf1icts 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 of the 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.

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.

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

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

''

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

disposition:

Rulings on Advocate's Exceptions

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

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

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

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

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

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

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

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

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

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

include various complaints against Respondent.

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

supplemental proposed recommended order when it argues that Complainant is

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

that the Ethics Commission may consider matters materially related to the

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

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

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

complaint. The jurisdictional questions are whether Complainant has filed a

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

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

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

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

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

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

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

RO paragraphs 27 and 28:

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

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

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

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

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

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

''

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

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

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

Complaint p. 1)

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

complaints.

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

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

state:

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

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

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

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

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

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

card.

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

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

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

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

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

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

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

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

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

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

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

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

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

"attachments."

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

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

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

The handwritten notes on the attachments to the complaint and amended

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

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

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

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

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

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

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

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

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

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

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

state:

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

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

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

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

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

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

for its exercise must be strictly followed").

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

2d 488 (Fla. 1956), the Florida Hotel and Restaurant Commissioner commenced a

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

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

commence any suspension and revocation proceeding within 60 days of the

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

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

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

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

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

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

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

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

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

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

Id. at 489-90.

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

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

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

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

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

2d 25 (Fla. 5th DCA 2007), reviewed a Commission on Ethics Order denying an

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

the unsworn complaints of the publisher and commission.

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

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

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

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

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

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

handwritten notations and filed newspaper articles which include reference to

Respondent representing his employer/business partner at a Commission meeting

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

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

Commission on Ethics under Section 112.324, Florida Statutes and the

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

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

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

5002(1), F.A.C. In sum. a layperson should not be limited to presenting possible

wrongdoing only by wording the submission as would a lawyer.

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

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

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

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

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

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

DOAH lacks subject matter jurisdiction over Count IV.

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

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

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

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

complaint and consider violations and parties not contemplated by the

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

Section 112.322, Florida Statutes states:

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

investigate sworn complaints of violation of the code of ethics as

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

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

investigation of all facts and parties materially related to the

complaint at issue. (Emphasis added.)

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

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

* * *

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

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

with the allegations of the complaint.

* * *

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

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

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

investigative report. The Advocate may recommend and the Commission may

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

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

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

complaint at issue.

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

that it restates prior conclusions rejected by the Commission.

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

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

from RO paragraph 37:

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

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

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

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

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

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

31, 32, 33, 34, 35, 36, and 37 to the extent such paragraphs make factual findings, we reject

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

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

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

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

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

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

DCA 1995).

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

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

35, 36, and 37 of the RO is not without good reason. While the proofs in this particular case did

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

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

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

more reasonable than the ALJ's view.

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

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

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

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

1999). To those ends, it is not our intent or our action to disturb any finding of fact of the ALJ;

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

correct legal interpretation of the Commission's jurisdiction.

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 Division of Administrative

Hearings.

Conclusions of Law

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

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

Order from the Division of Administrative Hearings.

Disposition

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

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

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

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

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

October 24, 2014.

Date Rendered

-

inda McKee 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, AT EITHER 325 JOHN KNOX ROAD,

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

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

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

CONFORMED COPY OF THE ORDER DESIGNATED 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. C. Edward McGee, Attorney for Respondent

Ms. Diane L. Guillemette, Commission Advocate

Mr. Michael Casey, Complainant

The Honorable Robert E. Meale, Division of Administrative Hearings