STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE
HEARINGS
IN RE:
FRANK S. MESSERSMITH,
)
)
CASE NO.
93-0563EC
Respondent.
)
___________________________________)
RECOMMENDED
ORDER
Pursuant to joint
motion of the parties, the Division of Administrative Hearings, by its duly
designated Hearing Officer, Mary Clark, adopts this Recommended Order in its
entirety.
APPEARANCES
The Advocate: Virlindia
Doss
Advocate for the Commission on Ethics
Department of Legal Affairs
The Capitol, Suite 1601
Tallahassee, Florida
32399-1050
For Respondent: James C. Hauser
Messer, Vickers, Caparello, Madsen,
Lewis, Goldman & Metz, P.A.
Post Office Box 1876
Tallahassee, Florida
32302
STATEMENT OF THE
ISSUES
Whether Respondent
committed the violations of Section 112.313(4), Florida Statutes, alleged in an
Order Finding Probable Cause dated July 22, 1992, and if so, what penalty should
be recommended.
FINDINGS OF
FACT
1. On July 22, 1992, pursuant to its Report
of Investigation, the State of Florida Commission on Ethics issued an order
finding probable cause to believe that Respondent, Frank Messersmith, violated
Section 112.313(4), Florida Statutes, by accepting an all-expense paid hunting
trip in November 1987 to Riverview Plantation in Camilla, Georgia, when he knew
or should have known that the trip was given to influence his official actions,
and to believe that the Respondent violated Section 112.313(4), Florida
Statutes, by accepting an all-expense paid hunting trip in November 1988 to
Riverview Plantation in Camilla, Georgia, when he knew or should have known that
the trip was given to influence his official actions.
2. On February 3, 1993, the Executive
Director of the Commission on Ethics forwarded this case to the Division of
Administrative Hearings.
3. On May 19, 1993, Respondent filed his
"Statement of Position" in this cause.
In so doing, while Respondent does not admit wrongdoing or violation of
Section 112.313(4), Respondent made very clear that he did not legally challenge
or contest the Commission's findings and determinations that Respondent
improperly accepted two all-expense paid hunting trips. Also, in lieu of continued litigation
and the incurring of additional fees and costs associated therewith, Respondent
agreed to pay the requested fine of $1,800. Based on that Statement of Position,
Respondent filed a Motion for Order of Remand, sending this matter back to the
Commission on Ethics for entry of a Final Order resolving this matter consistent
with the Statement of Position.
4. Based on the Statement of Position, I
find that Respondent does not dispute the facts set out in the Report of
Investigation. It is incorporated
herein by reference.
5.
On May 27, 1993, the parties filed a Joint Motion requesting this Hearing
Officer to enter this Recommended Order.
CONCLUSIONS OF
LAW
6. Section 112.313(4), Florida Statutes,
provides:
UNAUTHORIZED COMPENSATION -- No public officer
or employee of an agency or his spouse or
minor child shall, at any time, accept any
compensation, payment or thing of value when
such public officer or employee knows, or,
with the exercise of reasonable care, should
know, that it was given to influence a vote or
other action in which the officer or employee
was expected to participate in his official
capacity.
7. While Respondent does not admit
wrongdoing, I conclude that the undisputed facts set forth in the Report of
Investigation demonstrate violations of Section 112.313(4), Florida
Statutes.
8. In view of the foregoing and upon review
of the Report of Investigation, I find Respondent did violate Section
112.313(4), Florida Statutes, in 1987 and 1988, as alleged in the Order Finding
Probable Cause.
PENALTY
9. The Respondent submits that he is
willing to pay a civil penalty of $1,800.
The Advocate has not asked for any greater sum.
10. In view of the foregoing and upon review
of the facts revealed by the Report of Investigation, I recommend imposition of
a civil penalty in the amount of $1,800.
RECOMMENDATION
Based on the
foregoing, it is, hereby,
RECOMMENDED:
That the Commission on
Ethics enter a Final Order and Public Report finding that the Respondent, Frank
Messersmith, violated Section 112.313(4), Florida Statutes, in two instances as
alleged in Complaint No. 90-170, and that civil penalty of $1,800 be imposed
upon him for said violations.
DONE AND RECOMMENDED
this 8th day of June, 1993, in Tallahassee, Leon County,
Florida.
___________________________________
MARY CLARK
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 8th day of June, 1993.
COPIES FURNISHED:
Virlindia Doss
Advocate for the
Commission
on
Ethics
Department of Legal
Affairs
The Capitol, Suite 1601
Tallahassee, Florida 32399-1050
James C. Hauser, Esquire
Messer, Vickers, Caparello,
Madsen,
Lewis, Goldman & Metz, P.A.
Post Office Box 1876
Tallahassee, Florida 32302
Bonnie Williams, Executive
Director
Ethics Commission
Post Office Box 6
Tallahassee, Florida 32302-0006
Phil Claypool, General
Counsel
Ethics Commission
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.