16-005483EC In Re: Milton West vs. * Status: Closed Recommended Order on Monday, April 10, 2017.

Summary: Respondent violated section 112.313(7)(a), Florida Statutes, by having a contractual relationship that conflicted with his official responsibilities as a member of the City of Ocoee Planning and Zoning Commission.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

IN RE: MILTON WEST, Case No. 16 - 5483EC

Respondent.

_______________________________/

RECOMMENDED ORDER

Pursuant to notice, a final hearing in this cause was held

by video teleconference bet ween sites in Orlando and Tallahassee,

Florida, on December 1, 2016 , before Linzie F. Bogan,

Administrative Law Judge of the Division of Administrative

Hearings.

APPEARANCES

For Advocate : Melody A. Hadley, Esquire

Office of the Att orney General

The Capitol, Plaza Level 01

Tallahassee, Florida 32399

For Respondent: Mark Herron, Esquire

Messer, Caparello, P.A.

Post Office Box 15579

2618 Centennial Place

Tallahassee, Florida 32317

STATEMENT OF THE ISSUE

Whether Respondent, while serving as an appointed member of

the Ocoee Planning and Zoning Commission, violated section

112.313(7)(a), Florida Statutes (2015) 1/ by having a contractual

relationship that conflicted with his official responsibilities ;

and, if so, the appropriate penalty.

PRELIMINARY STATEMENT

On August 3, 2016, the Florida Commission on Ethics

(Commission) issued an Order Finding Probable C ause to believe

that Milton West (Respondent), as a member of the City of Ocoee

Planning and Zoning Commission (P & Z Commission), violated

section 112.313(7)(a) by having a contractual relationship that

created a continuing or frequently recurring conflic t between his

private interests and the performance of his public duties or that

impeded the full and faithful discharge of his public duties. The

matter was forwarded to the Division of Administrative Hearings

(DOAH) on September 20, 2016.

During the fi nal hearing, Advocate for the Commission

(Advocate) offered the testimony of Michael Rumer, Joel Keller,

and Respondent. Respondent testified on his own behalf and called

no other witnesses. Advocate and Respondent stipulated to the

testimony of John Gro gan. Joint Exhibits 1 through 8 were

admitted into evidence. RespondentÓs Exhibits 1 and 2 were

admitted into evidence.

On November 23, 2016, Respondent filed a ÐMotion to

Invalidate Agency or Limit Action Based on Unadopted Rule

[ Motion ] .Ñ On November 29, 2016, Advocate responded with a

ÐMotion to Strike or Dismiss Respondent's Motion to Invalidate

Agency or Limit Action Based on [an Alleged] Unadopted Rule.Ñ

The undersigned reserved ruling on the Motion. By separate Order,

RespondentÓs Motion was d enied.

A Transcript of the final hearing was filed with DOAH on

January 25, 2017. RespondentÓs Unopposed Motion to Extend Time

Within Which to File Proposed Recommended Orders was granted, and

on March 3, 2017, each party filed a Proposed Recommended Ord er.

FINDING S OF FACT

1. At all times material to the complaint, Respondent

served as an appointed member of the Ocoee P & Z Commission .

2. Respondent is subject to the requirements of p art III,

c hapter 112, Florida Statutes, the Code of Ethics for P ubl ic

O fficers and E mployees, for his acts and omissions during his

tenure on the P & Z Commission.

3. As a member of the P & Z Commission, Respondent is

subject to the Ð Ocoee Florida Land Development Code, Section 3,

Planning and Zoning Commission [ Land De velopment Code ] . Ñ

4. Section 3 - 2 of Land Development Code provides in part as

follows:

A. Establishment and Membership

The Planning and Zoning Commission shall

consist of nine (9) members appointed by the

City Commission and one member appointed by

the School Board of Orange County as a non -

voting member. The member appointed by the

School Board of Orange County shall attend

those meetings at which the Planning and

Zoning Commission considers comprehensive

plan amendments and rezonings that would, if

a pproved, increase residential density on the

property that is the subject of the

application. No member shall be an employee

of the City of Ocoee and all members, except

the member appointed by the School Board of

Orange County, shall be residents of the City

of Ocoee. When selecting members to the

Planning and Zoning Commission, the City

Commission shall attempt to select persons

from different geographical areas within the

City so as to create geographical diversity

and representation.

* * *

E. C ompliance with Laws

The Planning and Zoning Commission, and its

individual members, shall comply with all

applicable laws relative to public bodies,

including disclosure of interests and

procedure[s] for refraining from

participation [when] a conflict of interest

exists.

* * *

G. Duties and Responsibilities

(1) To act as the Local Planning Agency

(LPA) of the City of Ocoee, pursuant to

Section 163.3174, Florida Statutes, and to

prepare on its own initiative recommendations

for amendments to the Co mprehensive Plan of

the City of Ocoee, including text and/or

maps, and to forward such amendments to the

City Commission for consideration. No such

recommendation shall be made except after a

public hearing held in accordance with State

and local requirem ents.

(2) To review and make recommendations to

the City Commission on applications for

amendments to the Comprehensive Plan. No

such recommendation shall be made except

after a public hearing held in accordance

with State and local requirements.

(3) T o prepare on its own initiative

recommendations for amendments to this Code,

text and/or maps, and to forward such

amendments to the City Commission for

consideration. No such recommendation shall

be made except after a public hearing held in

accordance w ith State and local requirements.

(4) To review and make recommendations to

the City Commission on applications for

amendments to this Code, including

applications for annexation or change of

zoning. Pursuant to Section 163.3174(4)(c),

Florida Statutes, the Planning and Zoning

Commission shall also have the responsibility

to review and make a finding as to the

consistency of the proposed land development

regulation with the adopted Comprehensive

Plan and to report such finding to the City

Commission. No such recommendation shall be

made except after a public hearing held in

accordance with State and local requirements.

(5) To review and make recommendations to

the City Commission on applications for

various development approvals or permits as

provided within this Code, including, but not

limited to Planned Unit Developments (PUD),

special exceptions, subdivisions, and any

other application for which the City

Commission requests a report and/or

recommendation. Where a public hearing is

required by the a pplicable procedural

section, no such recommendation shall be made

except after a public hearing held in

accordance with State and local requirements.

(6) To act in an advisory capacity to the

City Commission on land use and land

development issues and t o make such studies

and to conduct such investigations as may be

requested from time to time by the City

Commission.

(7) To review zoning of newly annexed lands

when it represents an increase in intensity

of use or a conflict with the Comprehensive

Plan pursuant to requirements of State law

and City ordinance.

5. In addition to serving on the P & Z Commission,

Respondent buys and sells commercial real estate.

6. Respondent is a manager and shareholder in W.O.R.Y.

INVESTORS, LLC (WORY), an entity that is also in the business of

buying and selling commercial real estate.

7. Respondent, in his individual capacity, owned

approximately four acres , which abutted six acres owned by WORY.

Both properties have an address on West Road in Ocoee, Florida,

and will be referred to collectively herein as the ÐWest Road

property.Ñ

A. The Contract

8. On or about November 11, 2015, Respondent, in his

individual capacity, and as manager for WORY, executed an

ÐAgreement of SaleÑ wherein the West Road property was t o be

purchased by Charter Schools Development Group, LLC (buyer) , for

$1,890,540. According to the Agreement of Sale, the buyer wanted

to Ðdevelop and construct on the Property a K - 8 public charter

school.Ñ

9. The Agreement of Sale contained a number of

contingencies , referred to in the contract as ÐBuyer Required

Approvals,Ñ that Respondent was required to satisfy prior to

finalization of the sale of the West Road property. Paragraph

six of the Agreement to Sale sets forth a number of the pre - sale

cont ingencies imposed on Respondent, and the same provides as

follows:

6. Development

The Buyer intends to develop and construct on

the Property a K - 8 public charter school and

adjacent commercial development acceptable to

Buyer consisting of buildings and o ther

improvements including, but not limited to

recreation fields, related landscaping, open

space, storm water, and appropriate parking

(the "Project"). Buyer's obligation to

complete the purchase of the Property from

Seller in accordance with the terms of this

Agreement is contingent upon the satisfaction

of each of the following conditions with

regard to the Property (each of which may be

waived in whole or in part in writing by

Buyer):

(a) Buyer has obtained final, unappealed and

unappealable approva ls from all necessary

governmental authorities (including

governmental agencies), for zoning, utilities

and any other approvals (including necessary

parking requirements) Buyer deems necessary,

in its sole discretion, permitting the

construction and use of the improvements

comprising the Project, including but not

limited to any required special exception.

(b) Buyer has obtained final, unappealed and

unappealable approvals and/or permits

required by any and all governmental

authorities (including governme ntal agencies)

so that the Property shall have immediate and

adequate access to water, sewer and all other

utilities in accordance with the final

approved site development plan.

(c) Buyer has obtained final, unappealed and

unappealable approvals and/or p ermits

required by any and all governmental

authorities (including governmental agencies)

for storm water management; including

easements and agreements for constructing and

maintaining storm water basins; all wetlands

studies and approvals in such form th at

wetlands, if any, shall not preclude

construction of roads, utilities, storm water

management facilities, any other required

improvements for erection of buildings on the

Property.

(d) Buyer has obtained all permits and

approvals, and all conditions t hereof shall

have been satisfied, so as to allow for

recording of the final plan and issuance of

building permits subject only to satisfaction

of the following requirements by Buyer at or

after Closing (i) submission of construction

drawings in accordance with applicable law,

(ii) execution by the Buyer of the necessary

development agreements, (iii) execution and

funding by Buyer of the necessary escrow

agreements for municipal improvements, and

sewer and water improvements, and

(iv) payment by the Buyer o f all municipal

fees and charges associated therewith.

(e) Subject to Seller's obligation set forth

in Section 6(f) below, Buyer has obtained any

and all other easements, approvals and/or

permits that may be necessary to construct

and use the improvement s comprising the

Project.

(f) Buyer shall obtain, at no additional

cost to Seller, all easements and roads that

in Buyer's sole reasonable discretion are

necessary for property access, utilities and

signage to the Property in accordance with

Buyer's fina l approved site development plan.

The items referred to in subsections 6(a)

through 6(f) hereof shall hereafter be

referred to as the "Buyer Required

Approvals." After the end of the Inspection

Period, Buyer shall diligently proceed with

the filing of al l applications necessary for

obtaining the Buyer Required Approvals.

Seller agrees, at no expense to Seller, to

cooperate with buyer in connection with the

Buyer Required Approvals to the extent of

signing all applications necessary for

obtaining the buyer Required Approvals and

appearing and testifying at the various

hearings . Seller's cooperation as aforesaid

shall not entitle Seller to any additional

compensation. All permit fees, studies,

deposit and investigation costs incurred in

connection with the Buyer Required Approvals

shall be the sole responsibility of buyer and

buyer agrees to affirmatively use its good

faith efforts to obtain all of the Buyer

Required Approvals without delay and as

expeditiously as reasonably possible. Seller

hereby grants to Buyer a power of attorney to

file, on Seller's behalf, all applications

related to the Buyer Required Approvals;

provided, however, that the Land shall not be

rezoned prior to the expiration of the

Inspection Period. Seller acknowledges that

buyer will likely contact, meet with and/or

obtain consents for the Project from

neighboring property owners during the

Inspection Period and in the process of

obtaining the Buyer Required Approvals.

(emphasis added).

10. None of the provisions of paragraph six of the

Agreement of Sale were waived by either party.

11. Paragraph 15(b) of the Agreement of Sale provides as

follows:

(b) If Seller shall violate or fail (in

breach of its obligations hereunder) to

fulfill or perform any of the terms,

conditions or unde rtaking set forth in this

Agreement within ten (10) days written notice

from Buyer or (five (5) days written notice

in the event of a monetary default), Buyer

shall be entitled to: (i) terminate this

Agreement and receive the return of the

Deposit and rei mbursement of Buyer's

documented out - of - pocket due diligence

expenses up to $15,000.00, and, thereupon,

the parties hereto will be released and

relieved from all provisions of this

Agreement, or (ii) pursue specific

performance.

12. Paragraph 17 of the Agreement of Sale states that

Ð[b]uyer and Seller agree to cooperate with each other and to

take such further actions as may be requested by the other in

order to facilitate the timely purchase and sale of the

Property.Ñ

13. Paragraphs 6, 15(b) and 17 of the Agreement of Sale

obligated Respondent to take all steps necessary, including

Ðappearing and testifying at the various hearings,Ñ for ensuring

that the ÐBuyer Required ApprovalsÑ were satisfied, which in turn

would allow Respondent to receive his shar e of the purchase price

for the West Road property.

14. Section 112.311(1), provides in part that Ð[i]t is

essential to the proper conduct and operation of government that

public officials be independent and impartial and that public

office not be used f or private gain other than the remuneration

provided by law.Ñ

B. Rezoning and RespondentÓs Role

15. In order for a charter school to be built on the West

Road property, it was necessary to rezone the existing planned

unit development land use plan co vering the property. Ocoee City

Planner Michael Rumer testified that there are two types of

rezoning. There is a straight rezoning to a zoning category

listed in the land development code and there is rezoning to a

planned unit development (PUD). Both t ypes of zoning use the

following process: an application is filed ; then there is a

review process by a development review committee , which is a

staff level review ; that review is forwarded to the P & Z

Commission for a recommendation ; and then it goes to the Ocoee

City Commission for two readings of an ordinance for rezoning if

the rezoning is approved. This is the process that was followed

for the West Road property PUD.

16. On February 9, 2016, the issue of whether to recommend

rezoning of the West Ro ad property to allow for the charter

school referenced in the Agreement of Sale came before the P & Z

Commission. Respondent was present for the meeting.

17. During the meeting, Respondent spoke in favor of the

rezoning request for the West Road propert y. When a fellow

commissioner made a request for more time to review the rezoning

issue, Respondent opposed the delay by stating Ð[i]f you don't

give them a go now, you basically kill the deal because it's a

time sensitive thing that they want the kids in there in August.Ñ

18. During the meeting, the commissioners struggled with

whether to recommend denial of the West Road property zoning

request, recommend approval of the request without conditions, or

recommend approval of the request with conditions. After two

previous motions regarding the zoning request died for lack of a

Ðsecond,Ñ a third motion was made wherein approval was

recommended Ðwith the condition that weÓre all going to look at

the traffic movement with the final site plan design.Ñ When it

appeared as though this motion was also likely to fail for lack

of a Ðsecond,Ñ Respondent encouraged the chairman of the P & Z

C ommission to voice a ÐsecondÑ for the motion since Respondent

was unable to do so. 2 /

19. RespondentÓs actions during the me eting of February 9,

2016, were consistent with his obligations under the Agreement of

Sale to assist the buyer of the West Road property with securing

the ÐBuyer Required Approvals.Ñ

CONCLUSIONS OF LAW

20. DOAH has jurisdiction over the subject matter of and the

parties to this case pursuant to sections 120.569 and 120.57(1),

Florida Statutes (2016).

21. Section 112.322 and Florida Administrative Code Rule 34 -

5.0015 authorize the Commission to conduct investigations and to

make public reports on complai nts concerning alleged violations of

the Code of Ethics for Public Officers and Employees.

22. The Commission seeks to penalize Respondent for his

alleged violations of the Code of Ethics for Public Officers and

Employees. Consequently, the Commission h as the burden of

proving by clear and convincing evidence the allegations against

Respondent. See Ferris v. Turlington , 510 So. 2d 292 (Fla.

1987); Evans Packing Co. v. Dep't of Agric. & Consumer Servs. ,

550 So. 2d 112 (Fla. 1st DCA 1989); and Inquiry Con cerning a

Judge , 645 So. 2d 398 (Fla. 1994).

23. Section 112.313(7)(a) provides as follows:

(7) CONFLICTING EMPLOYMENT OR CONTRACTUAL

RELATIONSHIP. Ï

(a) No public officer or employee of an agency

shall have or hold any employment or

contractual relat ionship with any business

entity or any agency which is subject to the

regulation of, or is doing business with, an

agency of which he or she is an officer or

employee, excluding those organizations and

their officers who, when acting in their

official cap acity, enter into or negotiate a

collective bargaining contract with the state

or any municipality, county, or other political

subdivision of the state; nor shall an officer

or employee of an agency have or hold any

employment or contractual relationship t hat

will create a continuing or frequently

recurring conflict between his or her private

interests and the performance of his or her

public duties or that would impede the full and

faithful discharge of his or her public duties.

Respondent is charged with violating the portion of section

112.313(7)(a) which prohibits a public officer from having a

contractual relationship that impedes the full and faithful

discharge of the officialÓs public duties.

24. A determination of a violation of s ection 112.313(7) (a)

Ðrequires an examination of the nature and extent of the public

officer's duties together with a review of his private employment

to determine whether the two are compatible, separate and

distinct, or whether they coincide to create a situation which

Ò tempts dishonor.ÓÑ Zerweck v. State Comm Ón on Ethics , 409 So.

2d 57, 61 (Fla. 4th DCA 1982).

25. Making recommendations to the Ocoee City Commission

regarding rezoning issues, like those related to the West Road

property, is an essential part of Respond entÓs responsibilities

as a member of the P & Z Commission. Section 112.311(1) requires

that Respondent act with independence and impartiality when

performing his public duties.

26. RespondentÓs contractual relationship with the buyer ,

both in his indiv idual capacity and as manager/shareholder in

WORY, encroaches on his public duties of independence and

impartiality because the contract imposes on Respondent an

obligation to take all steps necessary, including Ðappearing and

testifying at the various hea rings,Ñ to assist buyer in securing

the ÐBuyer Required Approvals.Ñ Further encroachment is

evidenced by the fact that if Respondent defaulted on his

contractual obligation to assist buyer in securing the ÐBuyer

Required Approvals,Ñ then not only would Re spondent lose the

benefit of the bargain with respect to the West Road property but

he would be obligated to reimburse buyer Ós documented out - of -

pocket expenses up to $15,000. Simply stated, RespondentÓs

contract with buyer created a situation which could reasonably

tempt Respondent to act with dishonor.

27. Finally, it is undisputed that Respondent complied with

s ection 112.3143 by abstaining from the February 9 , 2016,

rezoning vote because it inured to his special private gain (and

probably a business associate Ós ). Respondent argue s that his

ability to participate in the February 9 th discussion under

s ection 112.3143(4) absolves or exempts him from a violation of

s ection 112.313(7)(a).

28. Sections 112.3143 and 112.313(7) are independent laws.

Ne ither statute refers to the other. The statutes require proof

of different elements in order to establish a violation.

Compliance with one statute does not equate to compliance with

the other law. In Commission on Ethics advisory opinion 94 - 5,

the Commi ssion opined that, Ð[n] othing in s ection 112.313(7)(a)

indicates that compliance with s ection 112.3143 creates an

exemption from its application; in contrast, other specific

exemptions are provided in s ection 112.313(12). Ñ RespondentÓs

argument in this re gard is rejected.

2 9 . The clear and convincing evidence establishes that

Respondent violated section 112.313(7)(a).

PENALTY

30 . The penalties available for a public officer who

violates the Code of Ethics include: impeachment; removal from

office; susp ension from office; public censure and reprimand;

forfeiture of no more than one - third of his or her salary per

month for no more than 12 months; a civil penalty not to exceed

$10,000; and restitution of any pecuniary benefit received

because of the violat ion committed. § 112.317(1)(a), Fla. Stat.

31 . A primary purpose of civil penalties is to deter

misconduct by securing obedience to the law. Tull v. United

States , 481 U.S. 412 (1987); see also Hudson v. United States ,

522 U.S. 93 (1997)(Ðall civil pen alties have some deterrent

effectÑ). Thus, an imposition of a penalty is important to deter

future ethical misconduct, and critical to ensure the public's

trust and confidence in the system.

3 2 . The West Road property sold for $1,890,540. While

Respond ent was not the sole recipient of the sale proceeds, his

share of the same was based on the fact that individually he

owned four acres and had a shared interest in the remaining six

acres. A civil penalty should be something more than what is

tantamount t o Ðthe cost of doing business.Ñ See , e.g. , In Re:

Joseph G. Spicola v. Comm'n on Ethics , Case No. 91 - 6730EC ( Fla.

DOAH Apr . 9, 1992; Fla. COE Jun . 5, 1992).

3 3 . In its Proposed Recommended Order, Advocate proposed a

civil penalty in the amount of $10,0 00 and that Respondent also

receive a public censure and reprimand. These are reasonable

recommendations given the facts of this case.

RECOMMENDATION

Based on the F indings of F acts and C onclusions of Law, it is

RECOMMENDED that a civil penalty of $10,000. 00 be imposed against

Respondent due to his violation of s ection 112.313(7)(a) and that

Respondent also be publicly censured and reprimanded.

DONE AND ENTERED this 10 th day of April , 2017 , in

Tallahassee, Leon County, Florida.

S

LINZIE F. BOGAN

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 Clerk of the

Divi sion of Administrative Hearings

this 10 th day of April , 2017 .

ENDNOTE S

1 / All subsequent references to Florida Statutes will be to 201 5 ,

unless otherwise indicated.

2/ On August 3, 2016, the Commission on Ethics, in its Order

Finding Probable Cause, determined that because Respondent

followed the necessary disclosure and filing requirements,

probable cause does not exist to believe that Respondent violated

section 112.3143(3)(a) and (4) .

COPIES FURNISHED:

Millie Wells Fulford, Agency Clerk

Florida Commission on Ethics

Post Office Drawer 15709

Tallahassee, Florida 32317 - 5709

(eServed)

Melody A. Hadley, Esquire

Office of the Attorney General

The Capitol, Plaza Level 01

Tallahassee, Florida 32399

(eServed)

Mark Herron, Esquire

Messer, Caparello, P .A.

Post Office Box 15579

2618 Centennial Place

Tallahassee, Florida 32317

(eServed)

Brennan Donnelly, Esquire

Messer Caparello, P.A.

2618 Centennial Place

Tallahassee, Florida 32308

(eServed)

Virlind i a Doss, Executive Director

Florida Commission on E thics

Post Office Drawer 15709

Tallahassee, Florida 32317 - 5709

(eServed)

C. Christopher Anderson, III, General Counsel

Florida Commission on Ethics

Post Office Drawer 15709

Tallahassee, Florida 32317 - 5709

(eServed)

Advocates for the Commission

Office of the Attorney General

The Capitol, Plaza Level 01

Tallahassee, Florida 32399 - 1050

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 Final Order in this case.