91-006730EC In Re: Joseph G. Spicola vs. * Status: Closed Recommended Order on Thursday, April 9, 1992.

Summary: Respondent admitted violation of ethics code but objected to any penalty. Recommended $4,000 fine.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

In Re JOSEPH G. SPICOLA, )

)

Respondent, ) CASE NO. 91- 6730EC

) COMPLAINT NO. 91-4

_____________________________)

RECOMMENDED ORDER

Pursuant to written notice a formal hearing was held in this case before

Larry J. Sartin, a duly designated Hearing Officer of the Division of

Administrative Hearings, on February 12, 1992, in Tampa, Florida.

APPEARANCES

The Advocate: Virlindia Doss

Assistant Attorney General

Department of Legal Affairs

The Capitol, Suite 101

Tallahassee, Florida 32399-1050

For Respondent: John R. Lawson, Jr., Esquire

John A. Schaefer, Esquire

201 East Kennedy Boulevard

Suite 1700

Post Office Box 1100

Tampa, Florida 33601

STATEMENT OF THE ISSUES

Whether the Respondent violated Section 112.313(3), Florida Statutes, by

purchasing, while an employee of the Tampa Port Authority, services from a law

firm in which he was a partner, and Section 112.313(7)(a), Florida Statutes, by

being a 50 percent partner in a law firm which was doing business with his

agency, the Tampa Port Authority?

PRELIMINARY STATEMENT

On or about December 28, 1990, a Complaint was filed with the Florida

Commission on Ethics (hereinafter referred to as the "Commission"). The

Complaint was filed by Richard L. Murphy and contained allegations of misconduct

by Joseph G. Spicola, Jr., the Respondent in this case. Based upon a review of

the Complaint against Mr. Spicola the Commission issued a Determination of

Investigative Jurisdiction and Order to Investigate on April 10, 1991, ordering

the staff of the Commission to conduct a preliminary investigation into whether

the Respondent violated Sections 112.313(3) and 112.313(7)(a), Florida Statutes.

Following the Commission's investigation of the allegations against Mr.

Spicola a Report of Investigation was released on May 23, 1991. Based upon the

Complaint and the Report of Investigation the Advocate for the Commission issued

an Advocate's Recommendation on June 17, 1991. The Advocate determined that

there was probable cause to believe that Mr. Spicola had violated Sections

112.313(3) and 112.313(7)(a), Florida Statutes.

Based upon the Report of Investigation and the Advocate's Recommendation,

the Commission issued an Order Finding Probable Cause on September 18, 1991,

accepting the recommendation of the Advocate. The Commission ordered that a

public hearing be conducted.

By letter dated October 22, 1991, the Commission referred this matter to

the Division of Administrative Hearings and, in accordance with Rules 34-5.010

and 34-5.014, Florida Administrative Code, requested that the public hearing on

the Complaint against Mr. Spicola be conducted by the Division of Administrative

Hearings.

Prior to the formal hearing the parties filed a Prehearing Statement. The

parties stipulated to certain facts in the Prehearing Statement. Those facts

have been accepted in this Recommended Order and have been identified as

"Stipulated Facts".

At the formal hearing the Advocate presented the testimony of Emmett C.

Lee, Jr. The Advocate also offered ten exhibits which were accepted into

evidence. Mr. Spicola testified in his own behalf and presented the testimony

of Robert Benjamin Hinkley and Joseph Garcia. Mr. Spicola also offered eleven

exhibits, marked as Respondent's exhibits A-C, F-H and N-R. These exhibits were

accepted into evidence.

The parties have filed proposed recommended orders containing proposed

findings of fact. A ruling on each proposed finding of fact has been made

either directly or indirectly in this Recommended Order or the proposed finding

of fact has been accepted or rejected in the Appendix which is attached hereto.

FINDINGS OF FACT

A. The Respondent's Professional Experience.

1. The Respondent, Joseph G. Spicola, Jr., has been an attorney since

1958.

2. Mr. Spicola has served as a public defender, an elected state attorney,

city attorney and as General Counsel for former Florida Governor Bob Martinez.

3. Mr. Spicola also served as the General Counsel for the Tampa Port

Authority (hereinafter referred to as the "Port Authority") as an employee from

March 14, 1989, until December 31, 1990. (Stipulated Fact).

4. Mr. Spicola, since January 1, 1991, to the present, has served as

general counsel to the Port Authority as an independent contractor. (Stipulated

Fact).

5. Between March 14, 1989, and December 31, 1990, Mr. Spicola received a

salary from the Port Authority in the amount of $58,039.00. He also received

state health insurance and retirement benefits. (Stipulated Fact).

6. While Mr. Spicola was an employee of the Port Authority he was subject

to the Code of Ethics for Public Officers and Employees, Part III of Chapter

112, Florida Statutes (hereinafter referred to as the "Ethics Code").

B. The Practice of Mr. Spicola's Predecessor.

7. Mr. Spicola's predecessor as general counsel of the Port Authority,

Terrell Sessums, was a salaried employee and he participated in the Florida

Retirement System.

8. In his capacity as general counsel of the Port Authority, Mr. Sessums

referred legal work to law firms and other attorneys, including a law firm that

Mr. Sessums owned an interest in, MacFarlane, Ferguson, Allison & Kelly

(hereinafter referred to as " MacFarlane").

9. The practice of referring legal work of the Port Authority to Mr.

Sessums' law firm began in approximately May, 1977. At that time Mr. Sessums

obtained approval from the Port Authority Board of Commissioners (hereinafter

referred to as the "Board"), to engage the services of an associate of

MacFarlane. The minutes of the May 10, 1977, meeting of the Board reflect the

following concerning the authorization to use Mr. Sessums' law firm:

Tampa Port Authority vs. State of Florida. . . .

Because of the volume of work involved in

these various legal matters, in addition to

Port Authority routine legal matters, and in

view of the time element with regard to the

Uiterwyk suit, Mr. Berger told the Board that

he had, subject to Board confirmation,

authorized Mr. Sessums to associate Mr. David

Kerr of MacFarlane, Ferguson, Allison & Kelly

to represent the Authority in the Uiterwyk

Cold Storage suit against the Authority. The

charge for Mr. Kerr's services will be at

the rate of $50 per hour and $75 per hour for

court time, plus necessary and reasonable

costs, upon receipt of properly itemized

statements. . . .

Whereupon, it was moved by Mr. Simms, seconded

by Mr. Drawdy, and unanimously carried, the

Chairman stepping down to vote, to approve

the appointment of Mr. David Kerr of

MacFarlane, Ferguson, Allison & Kelly to

represent the Port Authority in the Uiterwyk

Cold Storage litigation.

Mr. Sessums also requested the Board's

approval to associate other attorneys,

including partners and associates of his own

law firm, when necessary and desirable, to be

paid at the rate of up to $50 per hour, plus

necessary and reasonable costs, subject to

receipt of properly itemized statements. Mr.

Sessums explained that he has from time to

time found it necessary to have the assistance

of some of his associates, who have been paid

for their services out of Mr. Sessums' income

from the Port Authority or other fees.

The Board approved Ms. Sessums' request.

10. Approval of the use of MacFarlane by Mr. Sessums for Port Authority

work was also given at a September 9, 1980, meeting of the Board.

11. After 1978, when Emmett Lee became Deputy Executive Director, Mr.

Sessums kept Mr. Lee informed as to the use of MacFarlane and other outside

attorneys. Mr. Lee became Executive Director in 1980 and remained in that

position until 1990. The evidence failed to prove the exact time when Mr.

Sessums began informing Mr. Lee of his use of outside attorneys or whether Mr.

Sessums was informing anyone else before he began informing Mr. Lee.

12. Mr. Lee discussed with Mr. Sessums the need for back-up attorneys for

Mr. Sessums apparently after Mr. Lee became Executive Director. Mr. Sessums

suggested the use of an associate at MacFarlane. Mr. Lee included fees for the

use of outside attorneys, including attorney's from MacFarlane, in the Port

Authority's budget each year, which the Board approved.

13. Generally, Mr. Sessums kept Mr. Lee informed of his use of MacFarlane

and other law firms for Port Authority work. After the September 9, 1990,

meeting of the Board, Mr. Sessums was specifically required to obtain "prior

approval of the Port Director" for any attorneys, "including partners and

associates of his own law firm". See Advocate's exhibit 7.

C. Mr. Spicola's Employment by the Port Authority.

14. When Mr. Spicola first took the position as general counsel of the

Port Authority, he was advised by the Port Authority Executive Director that Mr.

Spicola might not be eligible to be an "employee" of the Port Authority. This

concern was based upon a policy memorandum dated March 4, 1988, from the Florida

Department of Administration (hereinafter referred to as the "DOA Memo"), which

the Port Authority had received in 1988.

15. The DOA Memo was sent to "All Florida Retirement System Reporting

Units" and raised questions about the eligibility of attorneys and consultants

to participate in the Florida Retirement System. A questionnaire was attached

to the DOA Memo which all professionals on contract currently enrolled in the

Florida Retirement System were requested to complete and return to the

Department of Administration.

16. Mr. Sessums completed one of the questionnaires and filed it with the

Department of Administration. Mr. Sessums continued to be treated as an

employee and participated in the Florida Retirement System.

17. Despite the fact that Mr. Sessums was considered an "employee", Mr.

Lee told Mr. Spicola that he did not believe that Mr. Spicola could be an

"employee" of the Port Authority because of the DOA Memo. Mr. Lee believed for

some reason that Mr. Sessums had been " grandfathered in".

18. Mr. Spicola told Mr. Lee that he would handle the matter.

19. Mr. Spicola made inquiries with the Department of Administration about

his qualification as an "employee". A letter was sent to the Port Authority

from the Department of Administration indicating that it was up to the Port

Authority to decide Mr. Spicola's status.

20. Mr. Spicola was provided by Mr. Robert Hinkley, an employee of the

Port Authority in finance and accounting, with a DOA employee questionnaire and

a copy of the questionnaire that Mr. Sessums had filed with the Department of

Administration.

21. Mr. Spicola or someone at his request completed the DOA employee

questionnaire and submitted it to the Department of Administration. It

contained essentially the same information that Mr. Sessums had included on the

form he completed and filed. The form was signed by "James Brown", the recently

hired Director of Administrative Service of the Port Authority.

22. The Department of Administration sent a letter to the Port Authority

indicating that Mr. Spicola was an "employee" and was qualified to participate

in the Florida Retirement System.

23. Although the evidence proved that Mr. Spicola desired to be an

"employee", at least in part, so that he could continue to participate in the

Florida Retirement System, the evidence failed to prove that he violated any

ethics or other law, that he was not in fact correctly classified as an

"employee" or that his actions to insure that he was treated as an "employee"

are directly related to the charges against him.

24. The evidence concerning Mr. Spicola's actions in insuring that he was

an "employee" does, however, support a conclusion that Mr. Spicola should not

only reap the benefits of his treatment as an "employee" but must also suffer

the consequences of failing to conform his conduct to the rules governing the

actions of public employees.

D. Mr. Spicola's Referral of Legal Work While Employed

by the Port Authority.

25. At the time Mr. Spicola became general counsel for the Port Authority,

he had a 50 percent ownership interest in the law firm Spicola and Larkin, P.A.,

which he retained and continues to hold at the present time. (Stipulated Fact).

26. Between March 14, 1989, and December 31, 1990, Mr. Spicola referred a

number of legal matters to the Spicola and Larkin, P.A., law firm. (Stipulated

Fact).

27. During the period of time that Mr. Spicola was an employee of the Port

Authority he referred legal matters to Spicola and Larkin, P.A., for which

Spicola and Larkin, P.A., were paid approximately $70,695.89 in fees and costs.

28. The weight of the evidence failed to prove that the fees and costs

paid to Spicola and Larkin, P.A. while Mr. Spicola was an employee of Port

Authority were excessive or in any way unearned. The weight of the evidence

also failed to prove that the Port Authority did not receive appropriate legal

services for the fees and costs it paid.

29. Unlike Mr. Sessums, Mr. Spicola did not always attend Board meetings.

Instead, the Port Authority paid for the services of attorneys from Spicola and

Larkin, P.A., to attend Board meetings. The weight of the evidence, however,

failed to prove that the Port Authority failed to receive adequate services for

the fees it paid or that Mr. Spicola was avoiding work which he was being paid

to provide.

30. The referral of legal work by Mr. Spicola to Spicola and Larkin, P.A.,

between March 14, 1989, and December 31, 1990, was a violation of Sections

112.313(3) and 112.313(7)(a), Florida Statutes. Mr. Spicola has acknowledged

this violation and has only questioned the propriety and amount of any penalty

to be recommended.

31. At the time that Mr. Spicola became an employee of the Port Authority,

he was aware of the fact that his predecessor, Mr. Sessums, used attorneys of

MacFarlane and other firms for business of the Port Authority.

32. Mr. Spicola did not obtain specific approval from the Board to use

attorneys from his law firm or other firms to handle legal matters for the Port

Authority. Mr. Spicola did not investigate or attempt to determine the steps

that Mr. Sessums took before using MacFarlane for Port Authority legal work.

Nor did Mr. Spicola inquire into the legality of Mr. Sessums actions or his own

actions.

33. There was no effort on the part of Mr. Spicola to hide the fact that

legal work of the Port Authority was being referred to attorneys of Mr.

Spicola's own law firm and other firms.

34. All bills for legal work referred to Spicola and Larkin, P.A., were

approved at public meetings by the Board.

35. Although Mr. Spicola was not specifically aware of the prohibitions of

Sections 112.313(3) or 112.313(7)(a), Florida Statutes, and there was some basis

for relying to some extent upon the actions of Mr. Sessums, Mr. Spicola should

have looked into the matter to insure that his actions (and his predecessor's)

were not a violation of the law. Based upon Mr. Spicola's involvement in

government, Mr. Spicola should have been less casual about the actions he took

which obviously involved the use of public funds for his own benefit.

E. The Discovery of Mr. Spicola's Error.

36. In October or November, 1990, Mr. Spicola first became aware that his

referral of legal work was a violation of the Ethics Code when questioned about

the practice by a reporter for the local newspaper.

37. Mr. Spicola telephoned the former Chairman of the Commission to

determine whether he had been violating the Ethics Code. Mr. Spicola was

referred to counsel for the Commission.

38. Based upon his conversation with the Commission, Mr. Spicola concluded

that he had probably violated Ethics Code, reported this conclusion to the

Chairman of the Port Authority and indicated that he would have to resign his

employment.

39. At a December 31, 1990, meeting of Board Mr. Spicola's status was

changed from that of an "employee" to that of an "independent contractor"

effective January 1, 1991.

40. In changing his status, Mr. Spicola was no longer entitled to

participate in the Florida Retirement System because he was no longer an

"employee." Mr. Spicola was, however, able to continue the referral of Port

Authority legal work to his law firm and other law firms because he is no longer

subject to the Ethics Code.

41. Mr. Spicola has continued to refer Port Authority legal work to his

law firm and other law firms since becoming an independent contractor in the

same manner that he referred such work while he was an "employee" of the Port

Authority.

CONCLUSIONS OF LAW

A. Jurisdiction.

42. The Division of Administrative Hearings has jurisdiction of the

parties to and the subject matter of this proceeding. Section 120.57(1),

Florida Statutes (1991).

B. Burden of Proof.

43. The burden of proof, absent a statutory directive to the contrary, is

on the party asserting the affirmative of the issue of the proceeding. Antel v.

Department of Professional Regulation, 522 So.2d 1056 (Fla. 5th DCA 1988);

Department of Transportation v. J.W.C. Co., Inc. 396 So.2d 778 (Fla. 1st DCA

1981); and Balino v. Department of Health and Rehabilitative Services, 348 So.2d

249 (Fla. 1st DCA 1977). In this proceeding it is the Commission, through the

Advocate, that is asserting the affirmative. Therefore, the burden of proving

the elements of Mr. Spicola's alleged violations was on the Commission.

C. The Charges Against Mr. Spicola.

44. Mr. Spicola has been charge with violating Sections 112.313(3) and

112.313(7)(a), Florida Statutes. Mr. Spicola has admitted that he committed

both violations. The evidence also supports a conclusion that Mr. Spicola

committed both violations.

Section 112.313(3), Florida Statutes, provides:

(3) DOING BUSINESS WITH ONE'S AGENCY. No

employee of an agency acting in his official

capacity as a purchasing agent, or public

officer acting in his official capacity, shall

either directly or indirectly purchase, rent,

or lease any realty, goods, or services for

his own agency from any business entity of

which he or his spouse or child is an officer,

partner, director, or proprietor or in which

such officer or employee or his spouse or

child, or any combination of them, has a

material interest. Nor shall a public officer

or employee, acting in a private capacity,

rent, lease, or sell any realty, goods, or

services to his own agency, if he is a state

officer or employee, or to any political

subdivision or any agency thereof, if he is

serving as an officer or employee of that

political subdivision. The foregoing shall

not apply to district offices maintained by

legislators when such offices are located in

the legislator's place of business. This

subsection shall not affect or be construed

to prohibit contracts entered into prior to:

(a) October 1, 1975.

(b) Qualification for elective office.

(c) Appointment to public office.

(d) Beginning public employment.

45. Section 112.313(7)(a), Florida Statutes, provides, in pertinent part,

the following:

(7) CONFLICTING EMPLOYMENT OR CONTRACTUAL

RELATIONSHIP.

(a) No public officer or employee of an

agency shall have or hold any employment or

contractual relationship with any business

entity or any agency which is subject to the

regulation of, or is doing business with, an

agency of which he is an officer or employee,

excluding those organizations and their

officers who, when acting in their official

capacity, 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 that

will create a continuing or frequently

recurring conflict between his private

interests and the performance of his public

duties or that would impede the full and

faithful discharge of his public duties.

46. Mr. Spicola does not dispute that he violated both provisions. The

only issue remaining to be resolved in this matter is the penalty to be imposed

on Mr. Spicola for his admitted violations.

D. Penalty.

47. Section 112.317, Florida Statutes, provides a wide range of penalties

which the Commission may impose upon an person who violates the Ethics Code,

including violations of Sections 112.313(3) and 112.313(7)(a), Florida Statutes.

In particular, Section 112.317, Florida Statutes, authorizes the following

pertinent penalties for an "employee":

. . . .

6. A civil penalty not to exceed $5,000.

7. Restitution of any pecuniary benefits

received because of the violation committed.

8. Public censure and reprimand.

48. The Advocate has argued that a penalty of $2,000.00 per violation (a

total of $4,000.00) and restitution in the amount of $7,000.00 should be imposed

by the Commission on Mr. Spicola. Mr. Spicola has suggested that he bear the

costs of his defense of this action and that no additional punishment be

imposed. Neither party has cited any authority concerning the appropriate

penalty in a case such as this, and neither proposal is recommended.

49. There are several reasons why Mr. Spicola's recommended penalty should

be rejected. First, no evidence was presented to support a finding of fact as

to what costs, if any, Mr. Spicola has or will incur as a result of this

proceeding. It cannot be assumed without proof that any costs have been

incurred or, if so, the amount thereof.

50. Secondly, to impose no penalty on Mr. Spicola would be tantamount to

ignoring the fact that he violated the Ethics Code.

51. Finally, and most importantly, although the facts of this case may

mitigate against the imposition of the maximum penalty, the facts do not warrant

the imposition of no penalty by the Commission.

52. The following facts warrant imposition of some penalty:

1. Mr. Spicola chose to be an "employee" of the Port Authority. Although

Mr. Spicola could have referred the same work to his firm as an independent

contractor, he chose to be and was an employee rather than an independent

contractor.

2. Mr. Spicola is an attorney who has been involved in government service

for many years. Although he has been given the benefit of the doubt as to

whether he was actually aware that his actions violated the Ethics Code, he

should have at least looked into the matter to be sure that his actions were not

in violation of any law. Having been involved in government for as long as Mr.

Spicola has, he should have been more circumspect about the actions he took

which obviously involved use of public funds to benefit himself. Mr. Spicola's

suggestion that his only error was in not reading the Ethics Code trivializes

the Ethics Code and ignores Mr. Spicola's responsibility as a public servant and

the concerns which any reasonable person should have about the use of public

funds for his or her benefit. Mr. Spicola assumed too much.

53. Mr. Spicola suggests that he merely followed the precedent set by Mr.

Sessums. Although partially true, Mr. Spicola did not indicate that he made any

effort to determine what steps, if any, Mr. Sessums had taken to insure that his

referral of work which resulted in the expenditure of public funds for the

benefit of his law firm was not a violation of any law. Mr. Spicola merely

assumed that it was okay.

54. That Mr. Spicola did not intentionally violate the law or intend to

harm the Port Authority does militates against imposition of the maximum penalty

available. The violations at issue do not require, however, proof of any

malicious or wrongful intent or harm to a public agency.

55. Mr. Spicola promptly took steps to remedy the situation and has not

attempted to dispute the charges against him, which also militates to some

extent against imposition of the maximum penalty.

56. Taken as a whole, a penalty of less than the maximum penalty should be

imposed.

57. The amount of the civil penalty recommended by the Advocate is

reasonable. Although there are technically two violations, they are actually

duplicate characterizations of the same act. A civil penalty of $4,000.00 (or

$2,000.00 per violation) is reasonable.

58. The Advocate's recommendation that restitution should be required,

however, is rejected. The evidence in this case failed to prove that the Port

Authority did not receive full value for the services rendered to it by Mr.

Spicola's law firm or that Mr. Spicola's law firm was not otherwise entitled to

the fees and costs it was paid. Therefore, restitution is not justified.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is

RECOMMENDED that the Commission on Ethics enter a Final Order and Public

Report finding that the Respondent, Joseph G. Spicola, violated Sections

112.313(3) and 112.313(7)(a), Florida Statutes, as alleged in Complaint No. 91-

4, and imposing a civil penalty of $4,000.00 on Mr. Spicola for such violations.

DONE and ENTERED this __24th__ day of March, 1992, in Tallahassee, Florida.

___________________________________

LARRY J. SARTIN

Hearing Officer

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the

Division of Administrative Hearings

this __24th__ day of March, 1992.

APPENDIX RECOMMENDED ORDER

The parties have submitted proposed findings of fact. It has been noted

below which proposed findings of fact have been generally accepted and the

paragraph number(s) in the Recommended Order where they have been accepted, if

any. Those proposed findings of fact which have been rejected and the reason

for their rejection have also been noted.

The Advocate's Proposed Findings of Fact

Proposed Finding Paragraph Number in Recommended Order

of Fact Number of Acceptance or Reason for Rejection

Section A:

1 3.

2 4.

3 5.

4 25.

5 1-2 and hereby accepted.

6 Not supported by the weight of the evidence. But see

32 and 35.

Section B:

1-2 7

3 11.

4 8-13.

Section C:

1 26.

2 27.

3 30.

Section D:

1 Hereby accepted.

2 9.

3 10.

4 32 and 35.

5 See 12. Advocate's Exhibit 6 does not support this

proposed finding of fact. Advocate's Exhibit 6 is a copy of the minutes of a

meeting of the Board of May 10, 1977. Mr. Lee, the Port Authority Director who

testified he discussed the hiring of outside attorneys with Mr. Sessums did not

come to the Port Authority until 1978. Mr. Lee did discuss the hiring of

outside attorneys with Mr. Sessums but the practice had already been approved by

the Board when that discussion was held.

6 See 11.

7 26-27 and hereby accepted.

8 Although true, the weight of the evidence failed to

prove the dispute between Mr. Spicola and Mr. Lee was anything more than a

philosophical dispute between the two men over their respective areas of

authority. The matter was even discussed with the Chairman of the Board who

agreed with Mr. Spicola that the legal work of the Port Authority was Mr.

Spicola's responsibility. The evidence was insufficient to conclude that Mr.

Spicola's dispute with Mr. Lee was part of any deliberate attempt to circumvent

the Ethics Code.

9 See 9 and 10. The Board did not, however, approve

every outside attorney hired before the attorney was hired. The Board, in 1977

and again in 1980, gave Mr. Sessums the general authority to make that decision

and the Board ultimately approved the expenditure of fees and costs to outside

attorneys.

10 32 and 34.

11 Not supported by the weight of the evidence.

12 29.

13 See 29.

14 See the discussion of finding of fact 8 of Section D.

15 Hereby accepted.

Section E:

1 5.

2 14.

3 14 and 17.

4 18 and 22.

5 19.

6-7 Hereby accepted.

8 20.

9 21.

10 Not supported by the weight of the evidence. At best

Mr. Lee testified that the information, based upon the work that Mr. Spicola

eventually performed for the Port Authority, was an "exaggeration." The

evidence failed to prove that the information on the questionnaire, at the time

it was completed, was not accurate.

11 21.

12 23.

13 Not supported by the weight of the evidence. See 23-24.

The Respondent's Proposed Findings of Fact

Proposed Finding Paragraph Number in Recommended Order

of Fact Number of Acceptance or Reason for Rejection

1 Hereby accepted.

2 3.

3 4.

4 25.

5 26.

6 3 and 6.

7-8 30.

9 36.

10 37.

11 38.

12 39.

13 9 and 31. But see 32 and 35.

14 See 41.

15 See the discussion of the Advocate's proposed finding

of fact 8 in Section D.

16 Not supported by the weight of the evidence, except

that the questionnaires did contain essentially the same information.

17 Not supported by the weight of the evidence. See 9-10

and 32-35.

18 Hereby accepted.

19 34.

20-25 Although generally true, these proposed findings of

fact have very little probative value. They have been considered, but have been

given little weight. Mr. Garcia was only one of the members of the Board and

cannot speak for the entire Board.

26 See 28. But see 33 and 35.

27 20.

28 21.

29 Hereby accepted.

30 11.

31 11-12.

32 Hereby accepted.

33 See the discussion of the Advocate's proposed finding

of fact 8 of Section D.

34 Hereby accepted.

COPIES FURNISHED:

Virlindia Doss

Assistant Attorney General

Department of Legal Affairs

The Capitol, Suite 101

Tallahassee, Florida 32399-1050

John R. Lawson, Jr., Esquire

Post Office Box 1100

Tampa, Florida 33601

Bonnie J. Williams

Executive Director

Commission on Ethics

The Capitol, Room 2105

Post Office Box 6

Tallahassee, Florida 32302-0006

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

ALL PARTIES HAVE THE RIGHT TO SUBMIT WRITTEN EXCEPTIONS TO THIS RECOMMENDED

ORDER. ALL AGENCIES ALLOW EACH PARTY AT LEAST 10 DAYS IN WHICH TO SUBMIT

WRITTEN EXCEPTIONS. SOME AGENCIES ALLOW A LARGER PERIOD WITHIN WHICH TO SUBMIT

WRITTEN EXCEPTIONS. YOU SHOULD CONTACT THE AGENCY THAT WILL ISSUE THE FINAL

ORDER IN THIS CASE CONCERNING AGENCY RULES ON THE DEADLINE FOR FILING EXCEPTIONS

TO THIS RECOMMENDED ORDER. ANY EXCEPTIONS TO THIS RECOMMENDED ORDER SHOULD BE

FILED WITH THE AGENCY THAT WILL ISSUE THE FINAL ORDER IN THIS CASE.

=================================================================

AGENCY FINAL ORDER

=================================================================

BEFORE THE

STATE OF FLORIDA

COMMISSION ON ETHICS

In re JOSEPH G. SPICOLA,

Complaint No. 91-4

Respondent. DOAH Case No. 91- 6730EC

_________________________/

FINAL ORDER AND PUBLIC REPORT

This matter came before the Commission on Ethics on the Recommended Order

rendered in this matter on March 24, 1992, by the Division of Administrative

Hearings (a copy of which is attached and incorporated by reference). The

Hearing Officer recommends that the Commission find that Respondent violated

Sections 112.313(3) and(7), Florida Statutes. Respondent filed exceptions to

certain language employed by the Hearing Officer in Part D of the Hearing

Officer's Conclusions of Law, the "Penalty" section, and to the amount of

penalty he recommended.

Having reviewed the Recommended Order, the Respondent's exceptions, and the

record of the public hearing of this complaint, and having heard the arguments

of counsel for the Respondent and the Commission's Advocate, the Commission

makes the following findings, conclusions, rulings and recommendations:

Findings of Fact

The Findings of Fact set forth in the Recommended Order are approved,

adopted, and incorporated herein.

Conclusions of Law

Paragraphs A, B and C of the Hearing Officer's recommended Conclusions of

Law are approved, adopted, and incorporated herein by reference.

Recommended Penalty

1. Paragraph No. 2 of the Hearing Officer's recitation of facts as set

forth in Part D (Penalty) on page 15 of the Hearing Officer's Recommended Order

is modified to read:

Mr. Spicola is an attorney who has been

involved in government service for many years.

although he has been given the benefit of the

doubt as to whether he was actually aware that

his actions violated the Ethics Code, he should

have at least looked into the matter to be sure

that his actions were not in violation of any

law. Having been involved in government for as

long as Mr. Spicola has, he should have been

more circumspect about the actions he took

which obviously involved use of public funds to

benefit himself. Mr. Spicola's error was in

not reading the Ethics Code and ignoring his

responsibility as a public servant and the

concerns which any reasonable person should

have about the use of public funds for his or

her benefit.

In making these changes, we note that the changes relate to the Hearing

Officer's editorialized comments, rather than to the recommended penalty

itself. However, the next two paragraphs on the top of page 16 of the Hearing

Officer's Recommended Order, which Respondent also has requested be changed,

shall remain the same and the Respondent's exceptions to the language employed

by the Hearing Officer in these two paragraphs are rejected.

2. We reject the Hearing Officer's rationale for declining to recommend

that restitution be assessed against Respondent as Section 112.317(1)(d)3.,

Florida Statutes, permits, because we find that his rationale is incorrect as a

matter of law. Therefore, the last paragraph on page 16 shall be modified by

striking the sentence at the bottom of page 16 and the top of page 17 and

inserting the following:

In addition to any criminal penalty or other

civil penalty involved, Section

112.3l7(1)(d)3., Florida Statutes, among other

things, permits the imposition of restitution

against the public employee of any pecuniary

benefits received because of the violation.

However, a review of the record here indicates

that there is insufficient evidence upon which

to base a determination of the pecuniary

benefits received because of the violations

committed; therefore, no restitution is

recommended.

3. We also reject the Hearing Officer's recommended penalty and,

consequently, paragraphs Nos. 4 and 5 on page 16 of the Recommended Order. We

find that the correct penalty in this case is a fine of $5,000 for each

violation for a total penalty of $10,000. This penalty is appropriate for the

following reasons:

a) Respondent is a lawyer of substantial experience

of more than 30 years, who sat at the right hand of the

Governor as his chief legal advisor. For a year and a

half he repeatedly referred work to his own law

firm,totaling approximately $71,000. He argues that his

actions should be excused because he did not read the

law. This excuse is not acceptable. We believe that we

should be governed by our own precedent to the extent

possible. Recently the case of In re Walter Stotesbury,

Complaint No. 89-160, 14 FALR 1017 (1991), aff'd,

Stotesbury v. State, Commission on Ethics, ___ So.2d ___

(Fla. 1st DCA 1992) (decided March 30, 1992), was

affirmed by the First District Court of Appeal without

opinion. In that case, the Commission recommended a

penalty of $5,000 for two isolated instances in which

Stotesbury, a member of an Airport Authority, not a

lawyer with substantial experience of 30 years or more

sold securities to and did business with a fixed based

operator of the airport. Here, the Hearing Officer's

recommended penalty appears to be a mere slap on the

wrist for repeated transactions that occurred over a year

and a half.

b) We also believe that a penalty that will be a

deterrence to others should be imposed here. An

increased penalty of $10,000 will indicate that a public

employee/lawyer cannot refer almost $71,000 worth of

business to a law firm of which he owns a 50% interest

and receive only a relatively minor penalty in the amount

of $4,000. Under these circumstances, the $4,000 penalty

recommended by the Hearing Officer is not a deterrent; it

is tantamount to the "cost of doing business."

Accordingly, the Commission on Ethics, having found that the Respondent,

Joseph G. Spicola, violated Sections 112.313(3) and 112.313(7), Florida

Statutes, recommends that a civil penalty be imposed upon Respondent in the

amount of $10,000.

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

session on Friday, June 5, 1992.

June 11, 1992

Date Rendered

____________________________

Dean Bunch

Chairman

YOU ARE NOTIFIED THAT YOU ARE ENTITLED, PURSUANT TO SECTION 120.68, FLORIDA

STATUTES, TO JUDICIAL REVIEW OF AN ORDER WHICH ADVERSELY AFFECTS YOU. REVIEW

PROCEEDINGS ARE COMMENCED BY FILING A NOTICE OF ADMINISTRATIVE APPEAL WITH THE

APPROPRIATE DISTRICT COURT OF APPEAL, AND ARE CONDUCTED IN ACCORDANCE WITH THE

FLORIDA RULES OF APPELLATE PROCEDURE. THE NOTICE OF ADMINISTRATIVE APPEAL MUST

BE FILED WITHIN 30 DAYS OF RENDITION OF THE ORDER TO BE REVIEWED.

cc: Mr. John R. Lawson, Attorney for Respondent

Ms. Virlindia Doss, Commission Advocate

Mr.Richard L. Murphy, Complainant

Division of Administrative Hearings